January 6, 1993
Securities and Exchange Commission
Judiciary Plaza
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: TC/GP, Inc.
Trump's Castle Associates
Schedule 13E-3
File No. 5-36825
----------------
Gentlemen:
On behalf of TC/GP, Inc., a Delaware corporation
("TC/GP") and Trump's Castle Associates, a New Jersey general
partnership (the "Partnership"), we enclose herewith for filing
under the Securities and Exchange Act of 1934, as amended
Amendment No. 5 to the Schedule 13E-3 of TC/GP and the
Partnership.
This filing is being effected by direct transmission to
the Commission's EDGAR System. This filing is being made under
TC/GP's CIK # 882320, CCC n#uvrkh6.
Pursuant to Rule 901(g) of Regulation S-T promulgated
under the Securities Act, a paper copy of this filing will be
provided to the Securities and Exchange Commission no later than
six business days after the date of the electronic filing.
Please telephone Michael A. Schwartz of this office, or
the undersigned, collect at (212) 821-8000, for any additional
information or if we can be of any assistance.
Very truly yours.
(signature goes here)
Marie-Anne Clarke
(1)
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_____________________________________________________________
_____________________________________________________________
TRUMP'S CASTLE ASSOCIATES,
a New Jersey general partnership
Second Amended and Restated Partnership Agreement
December 30, 1993
____________________________________________________________
____________________________________________________________
<PAGE>
TRUMP'S CASTLE ASSOCIATES
a New Jersey general partnership
SECOND AMENDED AND RESTATED PARTNERSHIP AGREEMENT
THIS SECOND AMENDED AND RESTATED PARTNERSHIP AGREEMENT is
entered into by and among Donald J. Trump ("Trump"), an
individual whose principal residence is 725 Fifth Avenue, New
York, New York 10022, TC/GP, Inc., a Delaware corporation
("TC/GP"), and Trump's Castle Hotel & Casino, Inc., a New Jersey
corporation ("TCHI"). Each of Trump, TC/GP and TCHI is referred
to herein as a "Partner" and collectively they are the
"Partners."
Preliminary Statement
Terms defined in this Preliminary Statement which are not
defined herein have the respective meanings set forth in Article
2 of this Agreement.
WHEREAS, TCHI and Trump, as general partners, and Donald J.
Trump as limited partner, formed a partnership (the
"Partnership") by entering into an Agreement of Limited
Partnership under the laws of the State of New Jersey on May 24,
1985, and amended such agreement on December 14, 1988, August 8,
1990, February 7, 1992 and February 10, 1992, and further amended
and restated such agreement as set forth in an Amended and
Restated Partnership Agreement dated May 29, 1992 (said Amended
and Restated Partnership Agreement, as in effect on the date
hereof, is referred to herein as the "Prior Agreement"); and
WHEREAS, the Partnership is proposing to consummate an
exchange offer for certain of its outstanding indebtedness and to
engage in certain other transactions described in a Registration
Statement on Form S-4, dated December 10, 1993, filed by the
Partnership and certain of its affiliates with the Securities and
Exchange Commission (the "Registration Statement"); and
WHEREAS, in connection with the consummation of the
Recapitalization (as defined in the Registration Statement), the
Partners desire that the Prior Agreement be amended and restated
in its entirety in the form of this Agreement; and
WHEREAS, Trump, TCHI and TC/GP desire to amend and restate
in its entirety the Prior Agreement and to set forth in this
Second Amended and Restated Partnership Agreement (this
"Agreement") their respective rights and obligations in
connection with the Partnership;
(1)
<PAGE>
NOW, THEREFORE, Trump, TCHI and TC/GP agree that the Prior
Agreement is hereby amended and restated in its entirety and that
the Partnership is hereby continued as a general partnership on
the terms and conditions set forth herein, and further agree as
follows:
ARTICLE 1
Certain Matters
1.1 Name. The name of the Partnership shall be, and
the business of the Partnership shall be conducted under the name
of, "Trump's Castle Associates". All contracts of the
Partnership shall be made, all instruments and documents
executed, and all acts of the Partnership done, in the name of
the Partnership; and all properties of the Partnership shall be
acquired, held and disposed of in the name of the Partnership or
in a designated nominee.
1.2 Term. The Partnership shall continue in existence
until December 31, 2041 or until the earlier termination of the
Partnership in accordance with the provisions of Article 13.
ARTICLE 2
Definitions
The following definitions shall for all purposes,
unless otherwise clearly indicated to the contrary, apply to the
terms used in this Agreement:
"Affiliate" of any specified Person means any other
Person directly or indirectly controlling or controlled by or
under direct or indirect common control with such specified
Person, and, with respect to any specified natural Person, any
other Person having a relationship with such specified Person by
blood, marriage or adoption not more remote than first cousin.
For purposes of this definition: "control" when used with
respect to any specified Person means the power to direct the
management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract
or otherwise; and the terms "controlling" and "controlled" have
meanings correlative to the foregoing.
"Agreement" means this Partnership Agreement, as in
effect from time to time.
(2)
<PAGE>
"Alternate Noteholder Representative" has the meaning
stated in Section 7.2 of this Agreement.
"Appraisal" shall mean the appraisal of the Castle
dated August 31, 1993 prepared by Appraisal Group International.
"Bank Pledge Agreements" shall mean the pledge
agreements listed on Schedule 1 hereto in favor of certain
creditors of Donald J. Trump.
"Board of Partner Representatives" has the meaning
stated in Section 6.1.
"Capital Account" has the meaning stated in Section
4.1.
"Capital Expenditure" means, with respect to any
Person, amounts which should in accordance with generally
accepted accounting principles be added to the fixed assets
account on the balance sheet of such Person in respect of (i) the
acquisition, construction, improvement, replacement or betterment
of assets or leaseholds and (ii) to the extent related to and not
included in clause (i) above, expenditures on account of
materials, contract labor and direct labor (excluding
expenditures properly chargeable to repairs and maintenance), all
determined in accordance with generally accepted accounting
principles consistently applied.
"Capitalized Lease" means, with respect to any Person,
any lease of any property (whether real, personal or mixed) by
such Person as lessee which, in conformity with generally
accepted accounting principles consistently applied, is or should
be accounted for as a capitalized lease on the balance sheet of
such Person.
"Capitalized Lease Obligations" means, with respect to
any Person, the amount of the liability reflecting the aggregate
discounted amount of future payments under all Capitalized Leases
by such Person as lessee, calculated in conformity with generally
accepted accounting principles consistently applied.
"Casino Control Act" means the New Jersey Casino
Control Act and the regulations promulgated thereunder, each as
in effect from time to time.
"Castle" has the meaning stated in Article 3.
(3)
<PAGE>
"Certificate of Interest" has the meaning stated in
Section 15.15.
"Certificate Transfer Ledger" has the meaning stated in
Section 15.15.
"Code" means the Internal Revenue Code of 1986, as in
effect from time to time.
"CRDA Bonds" has the meaning stated in Section 1.01 of
the Indenture.
"Debt" means, with respect to any Person, any
indebtedness in respect of borrowed money (whether or not the
recourse of the lender is to the whole of the assets of such
Person or only to a portion thereof), or evidenced by bonds,
notes, debentures or similar instruments or letters of credit, or
representing the balance deferred and unpaid of the purchase
price of any property (excluding trade credit, so long as such
trade credit is not characterized as a long-term liability under
generally accepted accounting principles), if and to the extent
such indebtedness would appear as a liability upon a balance
sheet of such Person prepared in accordance with generally
accepted accounting principles consistently applied, and shall
also include any Capitalized Lease Obligations of such Person.
"EBITDA" means, with respect to any period, an amount
equal to the sum of (i) the net income (or loss) of the
Partnership for such period determined in accordance with
generally accepted accounting principles, consistently applied,
excluding any extraordinary, unusual or non-recurring gains or
losses, plus (ii) all amounts deducted in computing such net
income (or loss) in respect of interest (including the imputed
interest portions of rentals under Capitalized Leases),
depreciation, amortization and taxes based upon or measured by
income, plus (iii) other non-cash charges arising from market
value adjustments and adjustments pertaining to contributions of
deposits in each case in respect of CRDA Bonds.
"Guarantee" means:
(i) any guarantee by a Person of the payment or
performance of, or any contingent obligation by a
Person in respect of, any Debt or other obligations of
any obligor other than such Person;
(ii) any other arrangement whereby credit is
extended to one obligor on the basis of any promise or
undertaking of another Person (including any "comfort
(4)
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letter" written by such other Person to a creditor or
prospective creditor) to (a) pay the Debt or other
obligations of such obligor, (b) purchase an obligation
owed by such obligor, (c) purchase or lease assets
under circumstances designed to enable such obligor to
discharge certain specific obligations or (d) maintain
the capital, working capital, solvency or general
financial condition of such obligor, in each case
whether or not such arrangement is disclosed in the
balance sheet of such other Person or referred to in a
note thereto;
(iii) any liability of a Person as a general
partner of a partnership in respect of Debt or other
obligations of such partnership (other than
non-recourse Debt or other non-recourse obligations);
(iv) any liability of a Person as a joint
venturer of a joint venture in respect of Debt or other
obligations of such joint venture (other than
non-recourse Debt or other non-recourse obligations);
and
(v) reimbursement obligations with respect to
outstanding letters of credit, surety bonds and other
financial guarantees;
provided, however, that the term "Guarantee" shall not include
endorsements for collection or deposit in the ordinary course of
business.
"Intercreditor Agreement" means the Intercreditor
Agreement dated as of the date hereof between Midlantic, the
Partnership and the Trustees under the Mortgage Note Indenture,
PIK Indenture and Senior Note Indenture.
"Managing Partner" means Trump.
"Midlantic" means Midlantic National Bank, together
with its successors and assigns.
"Midlantic Debt" means the indebtedness in a principal
amount not to exceed $38,000,000 evidenced by the Amended and
Restated Credit Agreement, dated as of May 29, 1992, as amended,
between the Partnership, TCFI and Midlantic National Bank and the
Amended and Restated Term Note of the Partnership issued
thereunder. Said Amended and Restated Credit Agreement, as
amended, is referred to herein as the "Midlantic Credit
Agreement."
(5)
<PAGE>
"Midlantic Debt Default" shall mean the occurrence of
(i) any Event of Default (as such term is defined in the
Midlantic Credit Agreement), in respect of which Midlantic shall
be obligated to give the Partnership the 90-day notice required
by Section 3.1 of the Intercreditor Agreement prior to any
acceleration of the Midlantic Debt based thereupon, but only if
such a 90-day notice is given by Midlantic, or (ii) any other
Event of Default (as so defined).
"Mortgage Noteholders" shall mean the Holders (as
defined in Section 1.1 of the Mortgage Note Indenture) of
Mortgage Notes.
"Mortgage Note Indenture" means the Indenture, dated as
of the date hereof, by and among TCFI, the Partnership and the
Trustee, relating to TCFI's 11 3/4% Mortgage Notes due 2003, as
such Indenture may be supplemented, modified or amended by one or
more indentures or other instruments supplemental thereto entered
into pursuant to the applicable provisions thereof.
"Mortgage Notes" has the meaning stated in Section 1.1
of the Mortgage Note Indenture.
"New Jersey Uniform Partnership Law" means Sections 1
through 43 of Chapter 1 of Title 42 of the New Jersey Statutes
Annotated, as in effect from time to time.
"Noteholders" shall mean the Mortgage Noteholders and
the PIK Noteholders.
"Noteholder Representatives" means the Partner
Representatives appointed by the Noteholders in accordance with
Section 7.2.
"Notes" shall mean the Mortgage Notes and the PIK
Notes.
"Partner" means any of TC/GP, Trump and TCHI and the
permitted transferees, successors and assigns of each.
"Partner Representative" means a member of the Board of
Partner Representatives appointed and holding such office in
accordance with Article 7.
"Partnership" has the meaning stated in the Preliminary
Statement to this Agreement.
"Partnership Interest" means the interest of a Partner
in the Partnership.
(6)
<PAGE>
"Partnership Percentage" has the meaning stated in
Section 4.5.
"Person" means any individual, partnership,
corporation, company, association, trust, joint venture,
unincorporated organization, entity or division, or any
government, governmental department or agency or political
subdivision thereof.
"PIK Notes" have the meaning stated in Section 1.1 of
the PIK Indenture.
"PIK Noteholders" shall mean the Holders (as defined in
Section 1.1 of the PIK Indenture) of PIK Notes.
"PIK Indenture" means the Indenture dated as of the
date hereof by and among TCFI, the Partnership and the Trustee,
relating to TCFI's Increasing Rate Subordinated Pay-in-Kind Notes
due 2005, or such Indenture may be supplemented, modified or
amended by one or more indentures or other instruments
supplemental thereto entered into pursuant to the applicable
provisions thereof.
"Profits" and "Losses" mean, for each fiscal year or
other period of the Partnership, the amount of profits or losses,
as the case may be, for such year or period determined in the
manner prescribed in Code Section 703(a) using the tax accounting
methods used for Federal income tax purposes and as prescribed in
Regulations under Code Section 704(b) reflecting the book
adjustment of the Capital Accounts as initially reflected in
Article 4. Amounts, if any, allocated and payable pursuant to
Section 5.5 shall be treated as expenses for determining such
profits and losses.
"Security Documents" shall mean the Mortgage Documents
(as defined in the Mortgage Note Indenture) and the Pledge
Agreement (as defined in the PIK Indenture).
"Senior Note Indenture" has the meaning set forth for
such term in the Mortgage Note Indenture.
"Services Agreement" means the Services Agreement dated
as of the date hereof between the Partnership and TC/GP, as the
same may be supplemented, modified or amended in accordance with
Section 7.11.1.12.
"TCFI" means Trump's Castle Funding, Inc., a New Jersey
corporation, all of the capital stock of which is owned by the
Partnership and which acts for the Partnership as a nominee
(7)
<PAGE>
corporation to effect, in a conduit basis, the borrowings
evidenced by the Mortgage Notes and the PIK Notes issued under
the Mortgage Note Indenture and PIK Indenture.
"TC/GP" has the meaning set forth in the Preamble to
this Agreement.
"TCHI" has the meaning set forth in the Preamble to
this Agreement.
"Trump" has the meaning stated in the Preamble to this
Agreement.
"Trump's Priority Capital" means, at any date, an
amount equal to $15 million, less distributions made pursuant to
Section 5.7.
"Trump Representatives" means the Partner
Representatives appointed by Trump in accordance with Section
7.2.
"Trustee" means First Bank National Association, as
trustee under the Mortgage Note Indenture and the PIK Indenture,
and any successor trustee appointed under the provisions of said
indentures.
ARTICLE 3
Purpose
The purpose and business of the Partnership is to
conduct casino gaming and to own and operate the Trump's Castle
Casino Resort and the ancillary structures, marina and other
facilities used or to be used in connection with the operation
thereof located in Atlantic City, New Jersey (collectively, the
"Castle"), with the power to: (i) buy, sell, lease, or enter
into any transaction to effectuate any of the foregoing; (ii)
exercise complete control over the Castle and all personal
property attached to or used in connection therewith and all
securities or other interests or obligations arising out of the
sale, exchange or other disposition of the Castle or any of its
properties by the Partnership; (iii) borrow money for Partnership
purposes and otherwise mortgage, pledge or encumber the Castle or
any part thereof either directly or through one or more nominee
corporations, including, without limitation, TCFI; and (iv) do
all things necessary, incidental, desirable or appropriate in
connection with the foregoing.
(8)
<PAGE>
ARTICLE 4
Capital Accounts
4.1. Capital Accounts. A separate capital account
shall be maintained for each Partner (each a "Capital Account").
Capital Accounts shall be maintained in accordance with the
regulations promulgated under Section 704(b) of the Code. The
Capital Account as of the date of this Agreement of each Partner
is as follows:
(a) TC/GP shall have a capital account equal to 37.5%
percent of the agreed fair market value of the Partnership's
assets as of the date of this Agreement as determined by the
Appraisal, less 37.5 percent of the sum of (i) the issue
price of the Mortgage Notes and PIK Notes issued
substantially contemporaneously with the effectiveness of
this Agreement, (ii) all other liabilities of the
Partnership valued at the amount reflected in the Appraisal
and (iii) Trump's Priority Capital as of the date hereof.
(b) Trump shall have a capital account equal to an
amount equal to the sum of (i) 61.5 percent of the agreed
fair market value of the Partnership's assets as of the date
of this Agreement as determined by the Appraisal, less 61.5
percent of the sum of (a) the issue price of the Mortgage
Notes and PIK Notes issued substantially contemporaneously
with the effectiveness of this Agreement, (b) all other
liabilities of the Partnership valued at the amount
reflected in the Appraisal and (c) Trump's Priority Capital
as of the date hereof, and (ii) Trump's Priority Capital as
of the date hereof.
(c) TCHI shall have a capital account equal to 1.0
percent of the agreed fair market value of the Partnership's
assets as of the date of this Agreement as determined by the
Appraisal, less 1.0 percent of the sum of (i) the issue
price of the Mortgage Notes and PIK Notes issued
substantially contemporaneously with the effectiveness of
this Agreement, (ii) all other liabilities of the
Partnership valued at the amount reflected in the Appraisal
and (iii) Trump's Priority Capital as of the date hereof.
4.2. Maintenance of Separate Capital Accounts. There
shall be credited to each Partner's Capital Account, as set forth
in Section 4.1, each Partner's share of the Profits of the
Partnership allocated to such Partner pursuant to Article 5 and
any additional contributions to the capital of the Partnership
made by such Partner in accordance with Section 4.4. There shall
(9)
<PAGE>
be charged against each Partner's Capital Account the amount of
all cash distributions made to such Partner (other than such
distributions treated as guaranteed payments pursuant to Section
5.5), such Partner's share of the Losses of the Partnership
allocated to such Partner pursuant to Article 5 and the fair
market value of any property (other than cash) distributed to
such Partner.
4.3. Capital Account Determinations. Except as
otherwise provided in this Agreement, whenever it is necessary to
determine the Capital Account of any Partner for purposes of any
provision hereof, the Capital Account of the Partner shall be
determined after giving effect to all capital contributions
theretofore made to the Partnership and all allocations of
Profits and Losses for transactions effected prior to the time as
of which such determination is made and all distributions
theretofore made. The Capital Account of any Partner, including
any additional or substitute partner, who shall receive a
Partnership Interest in the Partnership or whose Partnership
Interest shall be increased by means of a transfer to such
Partner of all or a part of the Partnership Interest of another
Partner shall be credited with (or charged with) the transferor's
Capital Account (or an appropriate part thereof in the case of a
partial transfer of a Partnership Interest); and, in such event,
corresponding adjustments shall be made with respect to the
Capital Account of the transferor Partner.
4.4. Additional Capital Contributions. No Partner
shall be obligated to make any additional contributions to the
capital of the Partnership or, as between Partners, to restore
any deficit in its Capital Account. If a Partner shall make any
additional contributions to the capital of the Partnership, the
amount thereof shall be credited to such Partner's Capital
Account; but, unless otherwise agreed among the Partners at the
time such contribution is made, such Partner will not be entitled
to the return of such contribution prior to the termination of
the Partnership. No additional contribution made by a Partner
will result in a change in the Partnership Percentages of the
Partners.
4.5. Partnership Percentages. As at any date, each
Partner's "Partnership Percentage" shall mean such Partner's
percentage interest in the Profits and Losses of the Partnership
determined in accordance with this Section 4.5. As at the date
of this Agreement the Partnership Percentage of each Partner is
as follows:
(10)
<PAGE>
Partner Initial Partnership Percentage
------- ------------------------------
Trump 61.5%
TC/GP 37.5%
TCHI 1.0%
ARTICLE 5
Allocations, Certain Payments and Distributions
5.1. Allocations. Except as is otherwise provided in
this Agreement, all Profits and Losses of the Partnership shall
be allocated among the Partners for each calendar year (or
portion thereof) and credited or debited, as the case may be, to
their Capital Accounts as follows:
5.1.1. Losses. Losses shall be allocated as
follows: (A) First, to those Partners with positive balances in
their Capital Accounts in proportion to and to the extent of the
respective positive balances of such Capital Accounts, until
either the full amount of such Losses shall have been so
allocated or the Capital Account balances equal zero, and (B)
next, in accordance with the Partners' Partnership Percentages.
5.1.2. Profits. Profits shall be allocated as
follows: (A) First, to those Partners with negative balances in
their Capital Accounts, in proportion to and to the extent of the
respective negative balances of the Capital Accounts, until
either the full amount of such Profit shall have been so
allocated or the Capital Account Balances of such Partners equal
zero, (B) then, if the ratio between the Capital Account Balances
of the Partners is other than in the ratio of their then
prevailing Partnership Percentages (determined for this purpose
without regard to any unrecovered amounts of Trump's Priority
Capital), there shall be credited to the Partners with the lesser
balance so much of the Profit as may be available to eliminate or
reduce the disparity and (C) next, in accordance with the
Partners' Partnership Percentages.
5.2. Allocations for Tax Purposes.
5.2.1. Except as otherwise provided in this Section
5.2, Profits and Losses for all income tax purposes shall be
allocated to the Partners to the greatest extent practicable in a
manner consistent with the manner set forth in Sections 5.1.1 and
5.1.2 and Code Section 704(b) and (c) and the Regulations
promulgated thereunder. Except as provided in Section 5.2.5,
(11)
<PAGE>
allocations pursuant to this Section 5.2 shall not be reflected
in the Capital Accounts of the Partners.
5.2.2 Notwithstanding anything to the contrary in this
Agreement, if there is a net decrease in partnership minimum
gain, as defined in Treasury Regulation Section 1.704-2(b)(2),
(except as a result of conversion or refinancing of Partnership
indebtedness, certain capital contributions or revaluations of
the Partnership property as further outlined in Treasury
Regulation Sections 1.704-2(d)(4), (f)(2) or (f)(3)), each
Partner shall be specially allocated items of Partnership income
and gain for such year (and if necessary, subsequent years) in an
amount equal to that Partner's share of the net decrease in
Partnership minimum gain. The items to be so allocated shall be
determined in accordance with Treasury Regulation Section
1.704-2(f). This section 5.2.2 is intended to comply with the
minimum gain chargeback rule in said Section of the Treasury
Regulations and shall be interpreted consistently therewith.
Allocations pursuant to this section 5.2.2 shall be made in
proportion to the respective amounts required to be allocated to
each Partner pursuant hereto.
5.2.3 Notwithstanding anything to the contrary in this
Agreement except Section 5.2.2, if there is a net decrease in
minimum gain attributable to partner nonrecourse debt, as
determined in accordance with Treasury Regulation Section
1.704-2(i)(2), each Partner shall be specially allocated items of
Partnership income and gain for such year (and if necessary,
subsequent years) in an amount equal to that Partner's share of
the net decrease in the minimum gain attributable to partner
nonrecourse debt. The items to be so allocated shall be
determined in accordance with Treasury Regulation Section
1.704-2(i)(4) and (j)(2). This Section 5.2.3 is intended to
comply with the minimum gain chargeback requirement contained in
Treasury Regulations Section 1.704-2(i)(4) and shall be
interpreted consistently therewith. Allocations pursuant to this
section 5.2.3 shall be made in proportion to the respective
amounts required to be allocated to each Partner pursuant hereto.
5.2.4. If during any taxable year of the Partnership
any Partner unexpectedly receives an adjustment, allocation or
distribution described in Treasury Regulation Section 1.704-l(b)
(2) (ii) (d) (4), (5) or (6), and such Partner has a deficit
Capital Account balance, there shall be allocated to such Partner
items of income and gain (consisting of a pro rata portion of
each item of Partnership income, including gross income and gain
for such year) in an amount and manner sufficient to eliminate
such Partner's deficit Capital Account balance as quickly as
possible. This Section 5.2.4 is intended to constitute a
(12)
<PAGE>
"Qualified Income Offset" under Treasury Regulation Section
1.704-1(b)(2)(ii)(d) and shall be interpreted consistently
therewith.
5.2.5. Each Partner's Capital Account shall be charged
for such Partner's allocable share of expenditures of the
Partnership (based on the Partnership Percentages prevailing on
the date such expenditures were made) described in Section
705(a)(2)(B) of the Code (relating to expenditures which are
neither deductible nor properly chargeable to capital) and
expenditures which, pursuant to the Regulations under Section
704(b) of the Code, are characterized as Section 705(a)(2)(B)
expenditures.
5.2.6. The amount of any partner nonrecourse
deductions as defined in Treasury Regulation Section 1.704-
2(i)(2) attributable to debt of the Partnership for which a
Partner bears the economic risk of loss, within the meaning of
Treasury Regulation Section 1.752-2(d)(3), shall be specially
allocated to such Partner.
5.2.7 To the extent an adjustment to the adjusted tax
basis of any Partnership asset pursuant to Section 732, 734 or
743 of the Code is required to be taken into account in
determining Capital Accounts in accordance with Treasury
Regulations Section 1.704-1(b)(2)(iv)(m), the amount of such
adjustment to the Capital Accounts shall be treated as an item of
gain (if the adjustment decreased such basis) and such gain or
loss shall be specially allocated to the Partners in a manner
consistent with the manner in which their Capital Accounts are
required to be adjusted pursuant to such Section of the
Regulations.
5.3. Tax Elections. All elections required or
permitted to be made by the Partnership under any applicable tax
law shall be made by the Managing Partner in its sole discretion.
5.4. Interim Closing of Books. In the event of a
transfer of a Partnership Interest or a change in the Partners'
Partnership Percentages, then Profits and Losses, each item
thereof and all tax items shall be allocated to the Partners by
taking into account their varying interests during the taxable
year of the transfer or change in accordance with Section 706(d)
of the Code, using the interim closing of the books method.
5.5. Certain Payments.
The payments specified in this Section 5.5 shall be
made to the specified Partner for services or the use of capital
(13)
<PAGE>
and shall be treated as "guaranteed payments" within the purview
of Section 707(c) of the Code for Federal income tax purposes and
as expenses of the Partnership for purposes of determining
Partnership Profits and Losses.
Subject to the following provisions of this Section
5.5, Trump shall be entitled to receive a distribution on
February 25 and August 25 in each fiscal year (each a
"distribution date") in respect of Trump's Priority Capital
unrecovered and outstanding during the period commencing on the
date immediately following the next preceding distribution date
and ending on such distribution date calculated at a rate per
annum equal to 9.5%. The Partnership shall pay such distribution
in cash not later than the 30th day following the applicable
distribution date if, and to the extent, permitted by Sections
10.09 of the Mortgage Note Indenture, PIK Indenture and Senior
Note Indenture. If the Partnership shall be unable to pay the
entire amount of any such distribution in cash, the portion not
paid in cash shall be forgiven and shall not cumulate.
5.6. Distributions. Except as prohibited by
contractual obligations of the Partnership entered into in
accordance with the terms and provisions of this Agreement, the
Managing Partner may distribute to the Partners the net cash flow
of the Partnership from time to time in amounts as determined by
the Managing Partner in accordance with Partnership Percentage
Interests.
5.7. Priority Return of Trump Priority Capital in
Certain Events. Trump shall be entitled to receive an amount
equal to Trump's Priority Capital upon any liquidation or
winding-up of the Partnership in priority to other distributions
to the Partners.
ARTICLE 6
Management and Operation of Business
6.1. Board of Partner Representatives. The business,
operations and affairs of the Partnership shall be managed by and
through a Board of Partner Representatives (the "Board of Partner
Representatives"). The Board of Partner Representatives shall be
elected and shall conduct its activities as set forth in Article
7. Except as otherwise provided expressly in this Agreement, the
Board of Partner Representatives shall have full authority to do
all things deemed necessary or desirable by it in the conduct of
the business, operations and affairs of the Partnership.
(14)
<PAGE>
Except as otherwise provided expressly in this
Agreement, all matters of policy pertaining to the business of
the Castle shall be approved by the Board of Partner
Representatives.
The Board of Partner Representatives shall approve an
annual operating budget prepared by the Managing Partner and any
material changes thereto. Such annual operating budget shall set
forth in reasonable detail, consistent with then current practice
for companies which own and operate casino-hotels, all major
items of income, expense, capital and extraordinary expenditures,
investments and similar matters.
6.1.1. Audit Committee. The Board of Partner
Representatives shall have an Audit Committee consisting of
two Noteholder Representatives appointed by the Noteholder
Representatives and one Trump Representative appointed by
the Trump Representatives. Such Audit Committee shall
perform the duties to be performed by the audit committee of
the Partnership in accordance with the Casino Control Act.
6.1.2. Compensation Committee. The Board of Partner
Representatives shall have a Compensation Committee
consisting of two Noteholder Representatives appointed by
the Noteholder Representatives and two Trump Representatives
appointed by the Trump Representatives. The Compensation
Committee shall review and recommend to the Board of Partner
Representatives the compensation and benefits to be paid to
the executive officers of the Partnership. The Compensation
Committee shall also review and advise the Board of Partner
Representatives in connection with any changes to the
Partnership's employee benefit policies.
6.2. Partners. The day-to-day control of the business,
operations and activities of the Partnership shall be vested in
and conducted by the Partners which shall be responsible for
supervising the activities of the Partnership's officers,
employees and agents. Except as otherwise provided expressly in
this Agreement, and subject to the provisions of Section 6.1 and
Article 7, the Partners shall have full authority in the name
and on behalf of the Partnership to do all things deemed
necessary or desirable by them in the conduct of the business of
the Partnership, including, without limitation, the right to
enter into and perform contracts of all kinds, to bring and
defend actions at law or in equity, to buy, own, manage, sell,
lease or otherwise acquire or dispose of Partnership assets, to
pay all expenses incurred by or on behalf of the Partnership, and
to cause the Partnership to enter into partnerships, joint
ventures and similar arrangements; provided, however, that no
(15)
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action that would, if the Partnership were a corporation
incorporated under the laws of the State of New Jersey, require
the authorization of the board of directors of such corporation,
shall be deemed authorized or be undertaken by the Partners
without the prior approval of the Board of Partner
Representatives in accordance with Article 7 hereof. The
Partners may delegate matters within the authority of the
Partners hereunder to a Partner who shall be the managing partner
or to a third party, acting as agent for the Partners, pursuant
to a management or similar agreement.
6.3. Compensation and Reimbursement of Partners and
Board of Partner Representatives.
6.3.1. Compensation of Partner Representatives. No
Partner or member of the Board of Partner Representatives
shall be entitled to separate compensation for services as
Partner or a member of the Board of Partner Representatives,
except that Partner Representatives (other than Trump or any
of his Affiliates) shall be entitled to receive an annual
fee not in excess of $50,000 plus an additional fee of
$2,500 for each meeting attended (in person or by conference
telephone call) (provided, that the aggregate amount of said
additional fees shall not exceed $25,000 in any fiscal
year), and to reimbursement of reasonable out-of-pocket
expenses incurred in connection with attendance at meetings.
The provisions of this Section 6.3.1 shall not limit any
payment made in accordance with the Services Agreement.
6.3.2. Reimbursement of Expenses. Subject to Section
7.11.1.7, the Partners and the Partner Representatives shall
be reimbursed by the Partnership for all expenses,
disbursements, and advances incurred or made in good faith
to third parties for or on behalf of the Partnership.
(16)
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ARTICLE 7
Partner Representatives; Officers; Conduct of Business
The Partners agree that, until the earlier of (i) such
time as all amounts payable under the Notes have been paid in
full, or (ii) such time as (A) the amount obtained by multiplying
the Partnership's EBITDA for the immediately preceding twelve
full calendar months by five (5) exceeds (B) the aggregate
principal amount of the Partnership's indebtedness for borrowed
money, on a consolidated basis, outstanding as of such time, the
affairs of the Partnership shall be governed in accordance with
the provisions of this Article 7.
7.1. Number. The number of Partner Representatives
which shall constitute the whole Board of Partner Representatives
shall be seven.
7.2. Appointment of Partner Representatives. The Board
of Partner Representatives shall be constituted as provided in
this Section 7.2, and each of the Partners shall take whatever
action is deemed necessary or desirable by the Noteholder
Representatives then in office to ensure that the Board of
Partner Representatives is constituted from time to time in
accordance with the provisions of this Section 7.2.
There shall be three Noteholder Representatives and
four Trump Representatives on the Board of Partner
Representatives. The initial Trump Representatives shall be
Trump, Nicholas L. Ribis, Ernest E. East and Roger P. Wagner.
The initial Noteholder Representatives shall be Asher O.
Pacholder, Thomas F. Leahy and Wallace B. Askins. The
Partnership shall give prompt written notice to the Trustee of
the appointment of any successor Trump Representative and of any
successor Noteholder Representative.
No Partner shall take any action that would result in
the removal of any Noteholder Representative, except in
accordance with the written instructions of the Trustee acting in
accordance with the vote of the Noteholders. The Noteholders,
acting at a joint meeting, may remove any Noteholder
Representative. Any two Noteholder Representatives can request
that the Trustee call a joint meeting of the Noteholders for such
purpose. If the Trustee so requests, then each Partner shall
take whatever action is necessary to remove a Noteholder
Representative from the Board of Partner Representatives.
Any vacancy on the Board of Partner Representatives
created by the resignation, removal, incapacity or death of any
(17)
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Noteholder Representative shall be filled by a designated
alternate Representative (the "Alternate Noteholder
Representative"). The initial Alternate Noteholder
Representative shall be filled by Arthur S. Bahr. If there is
any vacancy in the position of Noteholder Representative or
Alternate Noteholder Representative, such vacancy shall be filled
by the agreement of any two of the remaining Noteholder
Representatives or by the sole remaining Noteholder
Representative if only one Noteholder Representative remains in
office. If the Noteholder Representatives are unable to agree on
a replacement within 45 days after any vacancy occurs or if, as a
consequence of multiple vacancies occurring simultaneously, no
Noteholder Representatives remain, then the Partnership shall
promptly notify the Trustee of such vacancy. The Trustee shall,
promptly after receipt of such Notice, call a joint meeting of
the Noteholders, at which meeting such vacancy or vacancies shall
be filled. Each Partner shall take whatever action is deemed
necessary or desirable by the Noteholder Representatives or the
Trustee upon instruction of the Noteholders, as the case may be,
to ensure that the Alternate Noteholder Representative or other
Person so appointed as a Noteholder Representative shall be
appointed to the Board of Partner Representatives. Any such
vacancy shall not be filled in the absence of a new appointment
by the Noteholder Representatives or the Noteholders, as the case
may be.
7.2.1. Noteholder Meetings. Any meeting of the
Noteholders shall be held in accordance with Article 15 of
the Mortgage Indenture and Article 15 of the PIK Indenture.
At any such meeting, the Mortgage Noteholders and the PIK
Noteholders shall vote as a single class by principal amount
of the Notes then outstanding, and the vote of the holders
of a majority of the principal amount of the Notes then
outstanding shall be the act of the Noteholders.
7.3. Tenure. Except as otherwise provided by this
Agreement, each Partner Representative shall hold office until
his or her successor is appointed and qualified, or until he or
she sooner dies, resigns, is removed or becomes incapacitated or
disqualified.
7.4. Regular Meetings. Regular meetings of the Board
of Partner Representatives may be held without call or notice at
such places within or without the State of New Jersey and at such
times as the Board of Partner Representatives may from time to
time determine, provided that notice of the first regular meeting
following any such determination shall be given to Partner
Representatives absent when such determination was made.
(18)
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7.5. Special Meetings. Special meetings of the Board
of Partner Representatives may be held at any time and at any
place within or without the State of New Jersey designated in the
notice of the meeting, when called by either Trump or by two or
more of the Partner Representatives, reasonable notice thereof
being given to each Partner Representative by the Person calling
the meeting.
7.6. Notice. It shall be reasonable and sufficient
notice to any Partner Representative to send notice by mail at
least four business days or by telecopy at least two Business
Days before the meeting addressed to him or her at his or her
usual or last known business or residence address or to give
notice to him or her in person or by telephone at least twenty-
four hours before the meeting. Notice of a meeting need not be
given to any Partner Representative if a written waiver of
notice, executed by him or her before or after the meeting, is
filed with the records of the meeting, or to any Partner
Representative who attends the meeting without protesting prior
thereto or at its commencement the lack of notice to him or her.
Neither notice of a meeting nor a waiver of a notice need specify
the purposes of the meeting.
7.7. Quorum. Except as may be otherwise provided by
law or by this Agreement, at any meeting of the Board of Partner
Representatives a majority of the Partner Representatives then in
office, including, however, at least one of the Noteholder
Representatives shall constitute a quorum; a quorum shall not in
any case be less than one-third of the total number of Partner
Representatives constituting the whole Board of Partner
Representatives. Any meeting may be adjourned from time to time
by a majority of the votes cast upon the question, whether or not
a quorum is present, and the meeting may be held as adjourned
without further notice. Notwithstanding the foregoing provisions
of this Section 7.7, participation by a Noteholder Representative
shall not be necessary to form a quorum if all of the Noteholder
Representatives fail to attend three consecutive meetings of the
Board of Partner Representative, so long as (i) such meetings
were duly scheduled or called, as the case may be, in compliance
with this Article 7, (ii) notice was duly given to each
Noteholder Representative in accordance with Section 7.6 and
(iii) no action was taken by any Partner to hinder or obstruct
participation by any Noteholder Representatives at such meetings.
In the event of such failure, a majority of the Trump
Representatives (but not less than one-third of the total number
of Partner Representatives constituting the whole Board of
Partner Representatives) shall constitute a quorum at such third
consecutive meeting and for a six-month period from and after the
date thereof; provided, however, that immediately following the
(19)
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second such consecutive meeting the Partner Representatives shall
notify the Noteholder Representatives of their failure to
participate; and provided, further, that such third consecutive
meeting shall be held not less than three business days after the
second meeting at a place where conference telephone facilities
are available, and that the notice of such third meeting clearly
specifies the date, time and place of such meeting and the
correct telephone number to be called in the event that a
Noteholder Representative wishes to participate therein via
conference telephone in accordance with Section 7.10. Nothing in
this Section 7.7 shall be deemed to modify the other rights and
obligations of the Partners set forth herein, including without
limitation the other provisions of this Article 7.
7.8. Action by Vote. Except as may be otherwise
provided by law or by this Agreement, when a quorum is present at
any meeting the vote of a majority of the Partner Representatives
present shall be the act of the Board of Partner Representatives.
7.9. Action Without a Meeting. Any action required or
permitted to be taken at any meeting of the Board of Partner
Representatives may be taken without a meeting if all the members
of the Board of Partner Representatives consent thereto in
writing, and such writing or writings are filed with the records
of the meetings of the Board of Partner Representatives. Such
consent shall be treated for all purposes as the act of the Board
of Partner Representatives.
7.10. Participation in Meetings by Conference
Telephone. Members of the Board of Partner Representatives may
participate in a meeting of the Board of Partner Representatives
by means of a conference telephone or similar communications
equipment by means of which all persons participating in the
meeting can hear each other or by any other means permitted from
time to time by the New Jersey Business Corporation Law for the
conduct of a meeting of a board of directors of a corporation
organized thereunder. Such participation shall be deemed to
constitute presence in person at such meeting.
7.11. Special Vote of Noteholder Representatives
Required.
7.11.1. Vote of at least Two Noteholder
Representatives. Notwithstanding any other provisions of
this Agreement, authorization by the Partnership of the
following actions shall require, in addition to the vote of
a majority of the Partner Representatives present at a
meeting at which there is a quorum, the affirmative vote of
at least two of the Noteholder Representatives:
(20)
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7.11.1.1. Change in Management. Any replacement
of the individual holding the office of, or any
material change in the nature of the duties or terms of
employment of, the Chief Executive Officer, the Chief
Operating Officer or the Chief Financial Officer of the
Partnership.
7.11.1.2. Capital Expenditures. The making of any
Capital Expenditures which, in the case of any
individual expenditure or related series of
expenditures would exceed $500,000, or, in the
aggregate in any fiscal year of the Partnership would
exceed $5,000,000.
7.11.1.3. Debt. The direct or indirect creation,
incurrence, assumption or other subjection to or
maintenance of any Debt or Guarantee which, (i) in the
case of any single transaction or related series of
transactions, exceeds $5,000,000 or (ii) is not subject
to the preceding clause (i) but, together with all
other such Debt and Guarantees not subject thereto,
exceeds $10,000,000 in aggregate principal amount at
any time outstanding (with this clause (ii) pertaining
solely to such excess), other than: (a) Debt and
Guarantees incurred under the Senior Note Indenture,
the Mortgage Note Indenture or the PIK Indenture and
under the Notes, the Security Documents and the Senior
Notes (as hereinafter defined); (ii) the Midlantic
Debt; and (iii) Debt or Guarantees incurred for the
purpose, and the proceeds of which are applied, either
(A) to redeem all, but not less than all, of the
Midlantic Debt, the Notes and the 11 3/8% Senior
Secured Notes of the Partnership due 1999 (the "Senior
Notes") in accordance with the terms of the Mortgage
Note Indenture and the PIK Indenture and the Indenture
relating to the Senior Notes or (B) to repay the Notes
and the Senior Notes in full at the stated or any
accelerated maturity thereof (a "Notes Refinancing
Transaction"). If the terms of a line of credit,
revolving credit facility or similar credit facility
shall be approved in accordance with this Section
7.11.1.3, then no additional approval in respect of
such credit facility shall be required by this Section
7.11.1.3 for any borrowing made in accordance with such
terms.
7.11.1.4. Operating Leases. The direct or
indirect creation, incurrence, assumption or
maintenance of any obligation under any lease
(21)
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(including any lease of real property or improvements,
any vehicle, vessel or aircraft, or any other personal
property) other than a Capitalized Lease, unless the
aggregate fixed rental payments to be paid or accrued
for any period of four consecutive fiscal quarters of
the Partnership under such lease (including payments
required to be made by the lessee in respect of taxes
and insurance, whether or not denominated as rent) does
not exceed $1,500,000 for such period, or, during such
periods the Partnership's EBITDA exceeds $45,000,000,
does not exceed $5,000,000 for such period.
7.11.1.5. Sales of Assets. Any sale, lease,
sublease or other transfer or disposition of all or any
significant portion of the Partnership's assets, or the
entrance into any agreement to do any of the foregoing,
other than dispositions of surplus or obsolete
equipment, dispositions resulting from any casualty or
condemnations of assets or properties, and dispositions
of equipment in the ordinary course of business to the
extent such equipment is replaced with substitute
equipment of like kind or purpose. For purposes of
this Section a "significant portion of its assets"
shall mean assets having an aggregate fair market value
or book value (whichever is greater) of $2,000,000 or
more which are proposed to be sold, leased, subleased,
transferred or disposed of in any single transaction or
series of related transactions.
7.11.1.6. Amendment of Midlantic Debt. Any
amendment or supplement to, or modification of, or
waiver under, or any other change in, the Midlantic
Debt.
7.11.1.7. Affiliate Transactions. Any transaction
to which any Partner or any of his or its respective
affiliates is a party, participant or beneficiary.
7.11.1.8. Amendment of Indentures. Any amendment
or waiver of or supplement to or any change in the
Mortgage Note Indenture or the PIK Indenture which is
permitted by the terms of such Indenture to be
accomplished without the consent of the Mortgage
Noteholders or the PIK Noteholders, as the case may be.
7.11.1.9. Merger or Liquidation. The merger,
combination, consolidation, or termination or
liquidation of the Partnership with or into any other
entity or the merger, combination or consolidation of
(22)
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any other entity with or into the Partnership or the
entering into of any agreement with respect to the
foregoing.
7.11.1.10. Change in the Nature of Business.
Engagement in any business other than owning and
operating the Castle and other incidental businesses in
connection therewith which individually and in the
aggregate are not material to the Partnership.
7.11.1.11. Restoration. Any determination to
effect a Restoration (as such term is defined in the
Note Mortgage) pursuant to Section 5.10(e)(iii) thereof
or any determination that an eminent domain taking does
not constitute a Taking (as such term is defined in the
Note Mortgage).
7.11.1.12. Services Agreement. The consent by
the Partners to any amendment or supplement to, or
modification of, or waiver under, the Services
Agreement, or the approval of any other management or
other similar agreement pursuant to Section 6.2, or any
amendment or supplement thereto, or modification
thereof, or waiver thereunder.
7.11.1.13. Trump Compensation. Any compensation,
whether salary, bonus, remuneration or any other
payments or benefits, to Trump in excess of that
provided for in the Services Agreement.
7.11.2. Vote of at least One Noteholder
Representative. Notwithstanding the provisions of
Section 7.7, in addition to the vote of a majority of the
Partner Representatives present at a meeting at which there
is a quorum, the affirmative vote of at least one Noteholder
Representative shall be required for: (i) the commencement
by the Partnership of a voluntary case under Title 11 of the
United States Code, as from time to time in effect; (ii) the
seeking of relief as a debtor under any applicable law,
other than said Title 11, of any jurisdiction relating to
the liquidation or reorganization of debtors or to the
modification or alteration of the rights of creditors;
(iii) the filing of an answer or similar pleading with
respect to any involuntary case under said Title 11 or any
other such applicable law; or (iv) the assignment for the
benefit of, or the entering into a composition with, the
Partnership's creditors.
(23)
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7.11.3. Vote of Noteholders. Notwithstanding the
foregoing provisions of this Section 7.11, a special vote of
the Noteholder Representatives under Section 7.11.1 or
7.11.2 shall not be required to any action approved by the
Mortgage Noteholders and the PIK Noteholders pursuant,
respectively, to a meeting duly called under the Mortgage
Note Indenture and the PIK Indenture and otherwise in
accordance with the terms and provisions of such Indentures.
7.12. Officers of the Partnership.
7.12.1. Enumeration. Subject to Sections 7.2 and
7.11.1.1, the Partnership shall have a Chief Executive
Officer, a Chief Operating Officer, a Chief Financial
Officer, a Secretary and such other officers, if any, as the
Partners from time to time may in its discretion elect or
appoint. The Partnership may also have such agents, if any,
as the Partners from time to time may in its discretion
choose. Any officer may be (but none need be) a Partner
Representative.
7.12.2. Duties and Powers. Subject to law and to the
other provisions of this Agreement, each officer shall have
such duties and powers as are commonly incident to his or
her office and, subject to Section 7.11.1.1, such additional
duties and powers as the Board of Partner Representatives
may from time to time designate.
7.12.3. Tenure. Except as provided in Sections
7.11.1.1 and 7.13, each officer and agent shall retain his
or her authority at the pleasure of the Board of Partner
Representatives.
7.13. Resignations and Removals.
7.13.1. Resignations. Any Trump Representative may
resign at any time by delivering his or her resignation in
writing to the Partnership and Trump. Any Noteholder
Representative may resign at any time by delivering his or
her resignation in writing to the Partnership and the other
Noteholder Representatives. Any officer may resign by
delivering his or her resignation in writing to the Board of
Partner Representatives. Such resignations shall be
effective upon receipt unless specified to be effective at
some other time, and without in either case the necessity of
its being accepted unless the resignation shall so state.
7.13.2. Removal. The Partners may at any time remove
any Trump Representative either with or without cause.
(24)
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7.14. Minutes, etc. The Secretary shall record all
proceedings of the Board of Partner Representatives in a book or
series of books to be kept therefor and shall file therein all
actions by written consent of such bodies. In the absence of the
Secretary from any meeting, an Assistant Secretary, or if there
be none or he or she is absent, a temporary secretary chosen at
the meeting, shall record the proceedings thereof.
ARTICLE 8
Books, Records, Accounting and Reports
8.1. Records and Accounting. The Managing Partner
shall maintain a standard, modern system of accounting in which
full, true and correct entries will be made of all dealings and
transactions with respect to the Partnership's business. All
books of account and other records shall at all times be kept at
the principal office of the Partnership and shall be open to the
inspection and examination of the Partners or their
representatives during reasonable hours. All books and records
of the Partnership shall be kept on an accrual basis of
accounting with the fiscal year as its annual accounting period
which shall end on the date of the final dissolution or
termination of the Partnership. All references in this Agreement
to a "fiscal year" are to such an annual accounting period. Any
records maintained by the Partnership in the regular course of
its business, including the books of account, and records of
Partnership proceedings may be kept on, or be in the form of,
punch cards, magnetic tape, photographs, micrographics or any
other information storage device, provided that the records so
kept are convertible into clearly legible written form within a
reasonable period of time. The books of the Partnership shall be
maintained for financial reporting purposes according to
generally accepted accounting principles.
8.2. Fiscal Year. The fiscal year of the Partnership
shall end on December 31.
8.3. Annual and Periodic Reports.
8.3.1. Annual Statement; Annual Budget. The
Managing Partner shall, as soon as practicable, but in no
event later than 90 days after the close of each fiscal
year, cause to be furnished to each Partner the combined
balance sheet of the Partnership and its combined
subsidiaries as at the end of such fiscal year and the
combined statements of profit and loss, partners' capital
and cash flow for such year (all in reasonable detail), such
(25)
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combined statements to be accompanied by reports or
certificates of Arthur Andersen & Co., auditors of the
Partners and its consolidated subsidiaries, or other
independent certified public accountants of recognized
national standing selected by the Managing Partner.
8.3.2. Quarterly Reports. The Managing Partner
shall, as soon as available and, in any event, within 45
days after the end of each of the first three fiscal
quarters of the Partnership, furnish to each Partner the
internally prepared unaudited combined balance sheet of the
Partnership and its combined subsidiaries as of the end of
such quarter and the combined statements of profit and loss,
partners' capital and cash flow for such quarter and for the
portion of the fiscal year then ending (all in reasonable
detail), accompanied by a certificate of the Managing
Partner or of the chief financial officer of the Partnership
to the effect that, except for the lack of required
footnotes, such balance sheets and statements have been
properly prepared in accordance with generally accepted
accounting principles and fairly present the financial
condition of the Partnership and its combined subsidiaries
as of the date thereof and the results of their operations
for the period covered thereby, subject only to normal
year-end audit adjustments.
8.3.3. Other Information. From time to time upon
request of any Partner, the Managing Partner shall furnish
to such Partner such other information regarding the
business, affairs and condition, financial or otherwise, of
the Partnership and its subsidiaries as such Partner may
reasonably request. The authorized officers and
representatives of any Partner shall have the right during
normal business hours to examine the books and records of
the Partnership and each of its subsidiaries, to make
copies, notes and abstracts therefrom, and to make an
independent examination of its books and records.
ARTICLE 9
Income Tax Matters
9.1. Preparation of Tax Returns. The Managing Partner
shall arrange for the preparation (at the Partnership's expense)
and timely filing of all returns of Partnership income, gains,
deductions and losses necessary for federal and state income tax
purposes. The Managing Partner shall use its best efforts to
furnish to the Partners within sixty days and in any event shall
(26)
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furnish within ninety days of the close of the taxable year the
tax information reasonably required for federal and state income
tax reporting purposes. A copy of the Partnership's income tax
returns will be furnished to any Partner upon request. The
classification, realization and recognition of income, gain,
losses and deductions and other items shall be on the accrual
method of accounting for federal income tax purposes. The
taxable year of the Partnership shall end on December 31.
9.2. Tax Controversies. Subject to the provisions
hereof, the Partners hereby designate the Managing Partner as the
"Tax Matters Partner" (as defined in Section 6231 of the Code),
and the Managing Partner is authorized and required to represent
the Partnership (at the Partnership's expense) in connection with
all examinations of the Partnership's affairs by tax authorities,
including resulting administrative and judicial proceedings, and
to expend Partnership funds for professional services and costs
associated therewith.
9.3. Organizational Expenses. The Partnership shall
elect to deduct expenses, if any, incurred in organizing the
Partnership ratably over a sixty-month period as provided in
Section 709 of the Code.
ARTICLE 10
Transfer of Interests
10.1. Transfer. The term "transfer," when used in
this Article 10 with respect to a Partnership Interest means a
transaction by which the holder of a Partnership Interest assigns
the Partnership Interest or any part thereof to another Person,
and includes a sale, assignment, gift, pledge, encumbrance,
hypothecation, mortgage, exchange or any other disposition.
10.2. Transfers Generally. The Partnership Interest
of TC/GP or TCHI shall not be transferred, in whole or in part,
without the consent of the Managing Partner; provided, that, the
foregoing shall not apply to the pledges pursuant to the Bank
Pledge Agreements.
Any transfer or purported transfer of any Partnership Interest
not made in accordance with this Section 10.2 shall be null and
void.
(27)
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ARTICLE 11
[Intentionally Omitted]
ARTICLE 12
Admission of Additional Partners
12.1. Admission of Additional Partners. The Managing
Partner may admit additional Partners without the consent of the
Partners. In admitting additional Partners, the Partnership
shall not be obligated to offer first to the existing Partners
the right to make additional capital contributions or
subscriptions. The Percentage Interest of each additional
Partner shall be determined by the Managing Partner.
12.2. Amendment of Agreement in Connection with the
Admission of Additional Partners. For the admission to the
Partnership of any Partner, the Partners, shall take all steps
necessary and appropriate to prepare an amendment of this
Agreement reflecting the same.
ARTICLE 13
Termination and Winding-Up of Partnership
13.1. Termination. The Partners hereby waive their
right of partition and agree not to do anything that would
terminate the Partnership prior to the expiration of its term
without the prior written consent of the other Partners. No
Partner may voluntarily withdraw from the Partnership without the
prior written consent of all other Partners. Upon the
withdrawal, death, retirement or insanity of any Partner, or any
other event of dissolution under the New Jersey Uniform
Partnership Law, the business of the Partnership shall continue
upon the election of the remaining Partners and the Partnership's
affairs shall not be wound up unless all Partners thereafter
agree in writing that the Partnership's affairs shall be wound up
and the Partnership terminated.
13.2. Winding-Up of the Partnership. Upon any winding
up of the Partnership, the following shall be accomplished:
13.2.1. The financial officers of the Partnership
shall be directed to prepare a balance sheet of the
Partnership in accordance with generally accepted
accounting principles as of the date of dissolution,
(28)
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which shall be reported upon by the Partnership's
independent public accountants.
13.2.2. The assets of the Partnership shall be
liquidated by the Partners as promptly as possible, but
in an orderly and businesslike manner so as not to
involve undue sacrifice.
13.2.3. The proceeds of sale of all or
substantially all of the property of the Partnership
and all other assets of the Partnership to be
liquidated shall be applied and distributed as follows,
and in the following order of priority:
13.2.3.1. To the payment of debts and
liabilities of the Partnership and the expenses of
liquidation not otherwise adequately provided for; then
13.2.3.2. To the setting up of any reserves
which are reasonably necessary for any contingent
liabilities or obligations of the Partnership or of the
Partners arising out of, or in connection with, the
Partnership; and then
13.2.3.3. The remaining proceeds, to the
Partners in proportion to and to the extent of their
positive Capital Account balances determined after
giving effect to the allocations of Profits and Losses
provided for in Article 5 hereof.
13.2.3.4. The Partnership shall terminate
when all property and assets owned by the Partnership
to be liquidated shall have been disposed of, and the
net sale proceeds, after payment of or provision for
the amounts specified in Sections 13.2.3.1 and
13.2.3.2, and any assets to be distributed shall have
been distributed to the Partners as provided herein.
ARTICLE 14
Amendments; Etc.
14.1. Amendments. The Partners may amend any
provision of this Agreement, and any provision of this Agreement
may be waived, from time to time, with a writing executed on
behalf of each of the Partners.
(29)
<PAGE>
14.2. Non-Waiver. Except as expressly provided
herein, no delay on the part of any Partner in exercising any
right hereunder shall operate as a waiver thereof; nor shall any
waiver by any Partner of any right hereunder or of any failure to
perform or breach hereof by any other Partner constitute or be
deemed a waiver of any other right hereunder or of any other
failure to perform or breach hereof by the same or any other
Partner, whether of a similar or dissimilar nature thereof.
ARTICLE 15
General Provisions
15.1. Addresses and Notices. The address of each
Partner for all purposes initially shall be the address set forth
in Exhibit A to this Agreement. Any notice or communication
required hereunder shall be in writing and either delivered
personally or by overnight courier service, or mailed first class
and registered, postage prepaid, to an officer of the addressee
and shall be deemed to be given when so delivered to, or if
mailed when received at, such initial address (or to such other
address or addresses as such Person may subsequently designate by
notice given hereunder).
15.2. Titles and Captions. The table of contents to
this Agreement and all article or section titles or captions in
this Agreement are for convenience only. They shall not be
deemed part of this Agreement and in no way define, limit, extend
or describe the scope or intent of any provisions hereof.
15.3. Pronouns and Plurals. Whenever the context may
require, any pronoun used in this Agreement shall include the
corresponding masculine, feminine or neuter forms, and the
singular form of nouns, pronouns and verbs shall include the
plural and vice versa.
15.4. Further Action. The parties shall execute and
deliver all documents, provide all information and take or
refrain from taking action as may be necessary or appropriate to
achieve the purposes of this Agreement.
15.5. Binding Effect. This Agreement shall be binding
upon and inure to the benefit of the parties and their heirs,
executors, administrators, successors, legal representatives and
permitted assigns.
15.6. Integration. This Agreement constitutes the
entire agreement among the parties pertaining to the subject
(30)
<PAGE>
matter hereof and supersedes all prior agreements and
understandings pertaining thereto, whether written or oral.
15.7. Waiver. No failure by any party to insist upon
the strict performance of any covenant, duty, agreement or
condition of this Agreement or to exercise any right or remedy
consequent upon a breach thereof shall constitute waiver of any
such breach or any other covenant, duty, agreement or condition.
15.8. Counterparts. This Agreement may be executed in
counterparts, all of which together shall constitute one
agreement binding on all the parties, notwithstanding that all
the parties are not signatories to the original or the same
counterpart.
15.9. Applicable Law; Jurisdiction. This Agreement
shall be governed by and construed in accordance with the laws of
the State of New Jersey regardless of the laws that might
otherwise govern under applicable principles of conflict of laws
thereof. Each party hereto hereby expressly and irrevocably
agrees and consents that any action, suit or proceeding arising
out of or relating to this Agreement and the transactions
contemplated hereby may be instituted and maintained in any state
or federal court sitting in Atlantic County, New Jersey or in any
federal court sitting in the State of New Jersey or in any state
or federal court sitting in the Borough of Manhattan in New York,
New York and, by execution of this Agreement, each party hereto
expressly waives any objection that it may have now or hereafter
to the venue or jurisdiction of any such action, suit or
proceeding and irrevocably submits to the jurisdiction of any
such court in any such action, suit or proceeding.
15.10. Invalidity of Provisions. If any provision of
this Agreement is or becomes invalid, illegal or unenforceable in
any respect, the validity, legality and enforceability of the
remaining provisions contained herein shall not be affected
thereby.
15.11. Indemnification; Exculpation.
15.11.1. Indemnification. The Partnership shall
indemnify and hold harmless each Partner, its
Affiliates, each Partner Representative and his or her
Affiliates, and all officers, directors, employees and
agents of such Partner or Partner Representative, and
his, her or its Affiliates (each individually, an
"Indemnitee") from and against any and all losses,
claims, demands, costs, damages, liabilities, joint and
several, expenses of any nature (including attorneys'
(31)
<PAGE>
fees and disbursements), judgments, fines, settlements
and other amounts arising from any and all claims,
demands, actions, suits, or proceedings, civil,
criminal, administrative or investigative, in which the
Indemnitee may be involved, or threatened to be
involved, as a party or otherwise, arising out of or
incidental to the business of the Partnership,
including without limitation liabilities under the
Federal and state securities laws, regardless of
whether the Indemnitee continues to be a Partner, an
Affiliate of a Partner, a Partner Representative or an
Affiliate of a Partner Representative, or an officer,
director, employee, attorney or agent of a Partner or
Partner Representative or an Affiliate of such Persons
at the time any such liability or expense is paid or
incurred, but only if such course of conduct does not
constitute gross negligence or willful misconduct;
provided, however, that such indemnification or
agreement to hold harmless shall be recoverable only
out of assets of the Partnership and not from the
Partners. The indemnification provided by this Section
15.11 shall be in addition to any other rights to which
an Indemnitee may be entitled under any agreement, as a
matter of law or equity, or otherwise, both as to
action in the Indemnitee's capacity as a Partner, an
Affiliate of a Partner, a Partner Representative or an
Affiliate of a Partner Representative, or as an
officer, director, employee, attorney or agent of a
Partner or Partner Representative or an Affiliate of
such Persons and as to any action in another capacity,
and shall continue as to an Indemnitee who has ceased
to serve in such capacity and shall inure to the
benefit of the heirs, successors, assigns and
administrators of the Indemnitee. No Indemnitee shall
be denied indemnification in whole or in part under
this Section 15.11 by reason of the fact that the
Indemnitee had an interest in the transaction with
respect to which the indemnification applies if the
transaction was approved in accordance with Article 7.
15.11.2. Exculpation. No Partner Representative
shall have any liability to the Partnership or any
Partner for monetary damages for any action taken, or
any failure to take any action, as a Partner
Representative, except liability for (a) any improper
financial benefit received by a Partner Representative;
(b) an intentional infliction of harm on the
Partnership or any Partner; (c) acts or omissions not
(32)
<PAGE>
in good faith or which involve intentional misconduct;
and (d) any knowing violation of law.
15.12. Specific Performance; Third Party
Beneficiaries. The Partners agree that the Noteholders are third
party beneficiaries to this Agreement and that the legal remedies
of the Noteholders and the Noteholder Representatives may be
inadequate in the event of a breach of, or other failure to
perform, any covenants or obligations in this Agreement;
therefore, in addition to obtaining any other remedy or relief
available to them, the Noteholders and Noteholder Representatives
may obtain specific enforcement of this Agreement and other
equitable remedies.
15.13. Casino Control Commission Regulation.
Notwithstanding anything to the contrary in this Agreement:
(i) This Agreement will be deemed to include
all provisions required by the Casino Control Act and to the
extent that anything contained in this Agreement is inconsistent
with the Casino Control Act, the provisions of the Casino Control
Act shall govern. All provisions of the Casino Control Act, to
the extent required by law to be included in this Agreement, are
incorporated herein by reference as if fully restated in this
Agreement.
(ii) If the continued holding of a Partnership
Interest by any Partner will disqualify the Partnership to
continue as the owner and operator of a casino licensed in the
State of New Jersey under the provisions of the Casino Control
Act, such Partner shall enter into such escrow, trust or similar
arrangement as may be required by the Commission under the
circumstances. It is the intent of this Section 15.13 to set
forth procedures to permit the Partnership to continue, on an
uninterrupted basis, as the owner and operator of a casino
licensed under the provisions of the Casino Control Act.
(iii) (a) All transfers (as defined by the
Casino Control Act) of securities (as defined by the Casino
Control Act), shares and other interests in the Partnership shall
be subject to the right of prior approval by the Commission; and
(b) the Partnership shall have the absolute right to repurchase
at the market price or purchase price, whichever is the lesser,
any security, share or other interest in the Partnership in the
event that the Commission disapproves a transfer in accordance
with the provisions of the Casino Control Act.
(iv) Each Partner hereby agrees to cooperate
reasonably and promptly with the others in obtaining any and all
(33)
<PAGE>
licenses, permits or approvals required by any governmental
authority or deemed expedient by the Partners in connection with
the Casino Control Act.
(v) Each Partner shall have the right to offer
to acquire any Partnership Interest required to be disposed of
pursuant to this Section 15.13 on the same basis as other
potential purchasers, subject to the Casino Control Act.
15.14. Survival of Rights, Duties and Obligations.
Termination of the Partnership for any cause shall not release
any party from any liability which at the time of termination had
already accrued to any other party or which thereafter may accrue
in respect of any act or omission prior to such termination.
15.15. Certificate of Interest.
15.15.1. Form of Certificate of Interest. The
interest of each Partner in the Partnership shall be
evidenced by a Certificate of Interest in the form attached
as Annex 15.15 hereto (each a "Certificate of Interest"). A
certificate transfer ledger (the "Certificate Transfer
Ledger") recording the issue and transfer of Certificates of
Interest in the Partnership shall be maintained at the
principal office of the Partnership. Each such Certificate
of Interest shall be serially numbered and shall be issued
by, or at the written direction of, each of the Partners to
the lawful holder of an interest in the Partnership, upon
payment by the issue of the full amount of the capital
contributions then due with respect to its interest in the
Partnership represented by such Certificate of Interest.
All Certificates of Interest shall be executed in the name
of the Partnership by each of the Partners. Each
Certificate of Interest shall state on its face the name of
the registered holder thereof and the then interest in the
Partnership held by the issue; and shall bear, on both sides
thereof, a statement of the restrictions imposed by Section
105 of the Casino Control Act.
15.15.2. Transfers of Certificates of Interest.
Certificates of Interest in the Partnership may be
transferred by the lawful holders thereof only in connection
with the pledge or transfer of all or part of the interest
of such holder in the Partnership, and only in accordance
with the provisions of this Agreement. All such transfers
shall be effected by duly executed and acknowledged
instruments of assignment, each of which shall be duly
recorded on the Certificate Transfer Ledger. No effect
shall be given to any purported assignment of a Certificate
(34)
<PAGE>
of Interest, or transfer of the interest in the Partnership
evidenced thereby, unless such assignment and transfer shall
be in compliance with the terms and provisions of this
Agreement, and any attempted assignment or transfer in
contravention hereof shall be ineffectual.
15.15.3. Lost, Stolen, Destroyed or Mutilated
Certificates of Interest. In the event that a Certificate
of Interest shall be lost, stolen, destroyed or mutilated,
the Partnership may cause a replacement Certificate of
Interest to be issued upon such terms and conditions as
shall be fixed by the Managing Partner, including, without
limitation, provision for indemnity and the posting of a
bond or other adequate security as security therefor. No
replacement Certificate of Interest shall be issued to any
person unless such person has surrendered the Certificate of
Interest to be replaced, or has complied with the terms of
this Section 15.15.
15.15.4. Inspection of Certificate Transfer
Ledger. The Certificate Transfer Ledger containing the
names and addresses of all Partners and the interest of each
Partner in the Partnership shall be open to the inspection
of the Partners at the principal office of the Partnership
during usual business hours upon request of any Partner.
Such Certificate Transfer Ledger shall, in addition, be
available for inspection by the Casino Control Commission of
the Division of Gaming Enforcement of the State of New
Jersey and each of their respective authorized agents at all
reasonable times without notice.
15.16. Execution of Certain Documents by the
Partnership in Connection with the Plan. Trump, in his capacity
as Managing Partner of the Partnership, shall have the authority
to execute and deliver on behalf of the Partnership all
agreements, instruments and other documents to be executed and
delivered by the Partnership in connection with the
Recapitalization, including, without limitation, any mortgages,
security agreements and assignments contemplated thereby and all
instruments, certificates and other documents related thereto.
ARTICLE 16
16.1. Related Agreement of Trump. In the event that
Trump or any of his Affiliates shall become the holder of all or
any portion of the Midlantic Debt, then Trump and each such
Affiliate shall enter into an agreement subordinating such
indebtedness (and any liens securing the same) held by them to
(35)
<PAGE>
the indebtedness in respect of the Notes (and any liens securing
the same) in form and substance satisfactory to Noteholder
Representatives.
IN WITNESS WHEREOF, this Agreement has been executed as
of the ____ day of December, 1993.
__________________
DONALD J. TRUMP
TC/GP, INC.
-------------------
By: Donald J. Trump
Title: President
TRUMP'S CASTLE HOTEL & CASINO, INC.
___________________
By: Donald J. Trump
Title: President
(36)
<PAGE>
STATE OF NEW YORK )
ss.:
COUNTY OF NEW YORK )
BE IT REMEMBERED, that on December __, 1993, before me,
the subscriber, personally appeared Donald J. Trump, an
individual, who, I am satisfied, is the person who has signed the
within instrument on his own behalf, and I having first made
known to him the contents thereof he thereupon acknowledged that
he signed and delivered the said instrument in his personal
capacity as an individual, and that the within instrument is his
voluntary act and deed.
(signature goes here)
________________________________
Notary Public
(37)
STATE OF NEW YORK )
ss.:
COUNTY OF NEW YORK )
BE IT REMEMBERED, that on December __, 1993, before me,
the subscriber, personally appeared Donald J. Trump, the
President of TC/GP, Inc., a Delaware corporation, who, I am
satisfied, is the person who has signed the within instrument on
behalf of such corporation, and I having first made known to him
the contents thereof he thereupon acknowledged that he signed and
delivered the said instrument in his capacity as such officer
aforesaid, and that the within instrument is the voluntary act
and deed of said corporation, made by virtue of authority from
its Board of Directors.
(signature goes here)
________________________________
Notary Public
(38)
<PAGE>
STATE OF NEW YORK )
ss.:
COUNTY OF NEW YORK )
BE IT REMEMBERED, that on December __, 1993, before me,
the subscriber, personally appeared Donald J. Trump, the
President of Trump's Castle Hotel and Casino, Inc., a New Jersey
corporation, who, I am satisfied, is the person who has signed
the within instrument on behalf of such corporation, and I having
first made known to him the contents thereof he thereupon
acknowledged that he signed and delivered the said instrument in
his capacity as such officer aforesaid, and that the within
instrument is the voluntary act and deed of said corporation,
made by virtue of authority from its Board of Directors.
(signature goes here)
________________________________
Notary Public
(39)
<PAGE>
Schedule 1
Bank Pledge Agreements
----------------------
(40)
<PAGE>
TRUMP'S CASTLE FUNDING, INC., as Issuer
FIRST BANK NATIONAL ASSOCIATION, as Trustee
and TRUMP'S CASTLE ASSOCIATES, as Guarantor
_________________
INDENTURE
Dated as of December 28, 1993
_________________
$242,141,304
11-3/4% Mortgage Notes due 2003
<PAGE>
TABLE OF CONTENTS
PAGE
RECITALS OF THE COMPANY AND THE PARTNERSHIP. . . . . . . . . . 1
ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF GENERAL
APPLICATION . . . . . . . . . . . . . . . . . . 1
Section 1.1. Definitions. . . . . . . . . . . . . . 1
Acquired Indebtedness . . . . . . . . . . . . . 2
Adjusted Consolidated Interest Expense. . . . . 2
Adjusted Consolidated Net Income (Loss) . . . . 2
Affiliate . . . . . . . . . . . . . . . . . . . 3
Appraised Value . . . . . . . . . . . . . . . . 3
Assignment Agreement. . . . . . . . . . . . . . 3
Average Life to Stated Maturity . . . . . . . . 3
Bankruptcy Law. . . . . . . . . . . . . . . . . 4
Board of Directors. . . . . . . . . . . . . . . 4
Board Resolution. . . . . . . . . . . . . . . . 4
Business Day. . . . . . . . . . . . . . . . . . 4
Cage Cash . . . . . . . . . . . . . . . . . . . 4
Capital Lease Obligation. . . . . . . . . . . . 4
Capital Stock . . . . . . . . . . . . . . . . . 4
Casino - Hotel. . . . . . . . . . . . . . . . . 4
Casualty. . . . . . . . . . . . . . . . . . . . 4
CCC . . . . . . . . . . . . . . . . . . . . . . 4
Certificate of Appraised Value. . . . . . . . . 4
Change of Control . . . . . . . . . . . . . . . 5
Code. . . . . . . . . . . . . . . . . . . . . . 5
Collateral. . . . . . . . . . . . . . . . . . . 5
Company . . . . . . . . . . . . . . . . . . . . 5
Company Request . . . . . . . . . . . . . . . . 5
Company Order . . . . . . . . . . . . . . . . . 5
Consolidated Fixed Charge Coverage Ratio. . . . 5
Consolidated Income Tax Expense . . . . . . . . 5
Consolidated Net Worth. . . . . . . . . . . . . 6
Consolidation . . . . . . . . . . . . . . . . . 6
Corporate Trust Office. . . . . . . . . . . . . 6
CRDA. . . . . . . . . . . . . . . . . . . . . . 6
Default . . . . . . . . . . . . . . . . . . . . 6
EBITDA. . . . . . . . . . . . . . . . . . . . . 6
Equity Interest . . . . . . . . . . . . . . . . 6
Equity Offering . . . . . . . . . . . . . . . . 6
Event of Default. . . . . . . . . . . . . . . . 6
Excess Available Cash . . . . . . . . . . . . . 6
Exchange Act. . . . . . . . . . . . . . . . . . 7
F,F&E Financing Agreement . . . . . . . . . . . 7
Fair Market Value . . . . . . . . . . . . . . . 7
Gaming Authority. . . . . . . . . . . . . . . . 7
Generally Accepted Accounting Principles or
GAAP. . . . . . . . . . . . . . . . . . . . . . 7
Guarantee . . . . . . . . . . . . . . . . . . . 8
Guarantee Mortgage. . . . . . . . . . . . . . . 8
(i)
<PAGE>
Guaranteed Debt . . . . . . . . . . . . . . . . 8
Holder. . . . . . . . . . . . . . . . . . . . . 8
Indebtedness. . . . . . . . . . . . . . . . . . 8
Indenture . . . . . . . . . . . . . . . . . . . 9
Indenture Obligations . . . . . . . . . . . . . 9
Interest Payment Date . . . . . . . . . . . . . 10
Investments . . . . . . . . . . . . . . . . . . 10
Legal Requirements. . . . . . . . . . . . . . . 10
Lien. . . . . . . . . . . . . . . . . . . . . . 10
Litigation Warrants . . . . . . . . . . . . . . 10
Marina Lease. . . . . . . . . . . . . . . . . . 10
Maturity. . . . . . . . . . . . . . . . . . . . 10
Midlantic Term Loan . . . . . . . . . . . . . . 10
Mortgage Debt . . . . . . . . . . . . . . . . . 11
Mortgage Documents. . . . . . . . . . . . . . . 11
Mortgage Note Register and Mortgage Note
Registrar . . . . . . . . . . . . . . . . . . . 11
Mortgage Notes. . . . . . . . . . . . . . . . . 11
NASDAQ. . . . . . . . . . . . . . . . . . . . . 11
Net Cash Proceeds . . . . . . . . . . . . . . . 11
NJDGE . . . . . . . . . . . . . . . . . . . . . 11
Note Mortgage . . . . . . . . . . . . . . . . . 11
Noteholder Representatives. . . . . . . . . . . 11
Officers' Certificate . . . . . . . . . . . . . 11
Opinion of Counsel. . . . . . . . . . . . . . . 11
Outstanding . . . . . . . . . . . . . . . . . . 11
Outstanding Amount. . . . . . . . . . . . . . . 12
Pari Passu Indebtedness . . . . . . . . . . . . 13
Partnership . . . . . . . . . . . . . . . . . . 13
Partnership Agreement . . . . . . . . . . . . . 13
Partnership Note. . . . . . . . . . . . . . . . 13
Paying Agent. . . . . . . . . . . . . . . . . . 13
Permit. . . . . . . . . . . . . . . . . . . . . 13
Permitted Holder. . . . . . . . . . . . . . . . 13
Permitted Indebtedness. . . . . . . . . . . . . 13
Permitted Investment. . . . . . . . . . . . . . 15
Permitted Leases. . . . . . . . . . . . . . . . 15
Person. . . . . . . . . . . . . . . . . . . . . 16
PIK Note Indenture. . . . . . . . . . . . . . . 16
PIK Notes . . . . . . . . . . . . . . . . . . . 16
Pledge Agreement. . . . . . . . . . . . . . . . 16
Predecessor Mortgage Note . . . . . . . . . . . 16
Preferred Stock . . . . . . . . . . . . . . . . 17
Prospectus. . . . . . . . . . . . . . . . . . . 17
Public Offering . . . . . . . . . . . . . . . . 17
Qualified Capital Stock . . . . . . . . . . . . 17
Qualified Equity Interest . . . . . . . . . . . 17
Redeemable Capital Stock. . . . . . . . . . . . 17
Redeemable Equity Interest. . . . . . . . . . . 17
Redemption Date . . . . . . . . . . . . . . . . 17
Redemption Price. . . . . . . . . . . . . . . . 17
Regular Record Date . . . . . . . . . . . . . . 18
(ii)
<PAGE>
Responsible Officer . . . . . . . . . . . . . . 18
Restoration . . . . . . . . . . . . . . . . . . 18
SEC . . . . . . . . . . . . . . . . . . . . . . 18
Securities Act. . . . . . . . . . . . . . . . . 18
Senior Guarantee. . . . . . . . . . . . . . . . 18
Senior Guarantee Mortgage . . . . . . . . . . . 18
Senior Indebtedness . . . . . . . . . . . . . . 18
Senior Note Documents . . . . . . . . . . . . . 18
Senior Note Indenture . . . . . . . . . . . . . 19
Senior Note Mortgage. . . . . . . . . . . . . . 19
Senior Notes. . . . . . . . . . . . . . . . . . 19
Senior Partnership Note . . . . . . . . . . . . 19
Services Agreement. . . . . . . . . . . . . . . 19
Services Fee. . . . . . . . . . . . . . . . . . 19
Special Record Date . . . . . . . . . . . . . . 19
Stated Maturity . . . . . . . . . . . . . . . . 19
Subordinated Indebtedness . . . . . . . . . . . 19
Subordinated Partnership Note . . . . . . . . . 19
Subsidiary. . . . . . . . . . . . . . . . . . . 19
Taking. . . . . . . . . . . . . . . . . . . . . 20
Temporary Cash Investments. . . . . . . . . . . 20
Total Taking or Casualty. . . . . . . . . . . . 20
Trump Priority Interest . . . . . . . . . . . . 20
Trust Indenture Act . . . . . . . . . . . . . . 20
Trustee . . . . . . . . . . . . . . . . . . . . 20
Voting Stock. . . . . . . . . . . . . . . . . . 21
Wholly-owned Subsidiary . . . . . . . . . . . . 21
Working Capital Facility. . . . . . . . . . . . 21
Section 1.2. Other Definitions.. . . . . . . . . . 21
Section 1.3. Compliance Certificates and
Opinions. . . . . . . . . . . . . . . 21
Section 1.4. Form of Documents Delivered to
Trustee . . . . . . . . . . . . . . . 22
Section 1.5. Acts of Holders . . . . . . . . . . . 23
Section 1.6. Notices, etc., to Trustee, the
Company, the Partnership, the CCC
and the NJDGE . . . . . . . . . . . . 24
Section 1.7. Notice to Holders; Waiver . . . . . . 24
Section 1.8. Conflict with Trust Indenture Act.. . 25
Section 1.9. Effect of Headings and Table of Contents 25
Section 1.10. Successors and Assigns. . . . . . . . 25
Section 1.11. Separability Clause . . . . . . . . . 25
Section 1.12. Benefits of Indenture . . . . . . . . 26
SECTION 1.13. GOVERNING LAW . . . . . . . . . . . . 26
Section 1.14. Casino Control Act. . . . . . . . . . 26
Section 1.15. Legal Holidays. . . . . . . . . . . . 26
Section 1.16. Schedules.. . . . . . . . . . . . . . 26
Section 1.17. Counterparts. . . . . . . . . . . . . 26
ARTICLE TWO FORM OF MORTGAGE NOTES. . . . . . . . . . . . . 27
Section 2.1 Forms Generally . . . . . . . . . . . 27
Section 2.2. Form of Face of the Mortgage Notes. . 27
(iii)
<PAGE>
Section 2.3. Form of Reverse of the Mortgage
Notes.. . . . . . . . . . . . . . . . 29
Section 2.4. Form of Trustee's Certificate of
Authentication. . . . . . . . . . . . 34
ARTICLE THREE THE MORTGAGE NOTES. . . . . . . . . . . . . . . 35
Section 3.1. Title and Terms . . . . . . . . . . . 35
Section 3.2. Denominations . . . . . . . . . . . . 36
Section 3.3. Execution, Authentication, Delivery
and Dating. . . . . . . . . . . . . . 37
Section 3.4. Temporary Securities. . . . . . . . . 38
Section 3.5. Registration, Registration of
Transfer and Exchange . . . . . . . . 39
Section 3.6. Mutilated, Destroyed, Lost and
Stolen Mortgage Notes . . . . . . . . 40
Section 3.7. Payment of Interest . . . . . . . . . 41
Section 3.8. Persons Deemed Owners . . . . . . . . 42
Section 3.9. Cancellation. . . . . . . . . . . . . 42
Section 3.10. Computation of Interest . . . . . . . 43
Section 3.11. Non-recourse. . . . . . . . . . . . . 43
ARTICLE FOUR DEFEASANCE AND COVENANT DEFEASANCE. . . . . . . 44
Section 4.1. Option to Effect Defeasance or
Covenant Defeasance . . . . . . . . . 44
Section 4.2. Defeasance and Discharge. . . . . . . 44
Section 4.3. Covenant Defeasance . . . . . . . . . 45
Section 4.4. Conditions to Defeasance or Covenant
Defeasance. . . . . . . . . . . . . . 45
Section 4.5. Deposited Money and U.S.
Government Obligations to be
Held in Trust; Other
Miscellaneous Provisions. . . . . . . 48
Section 4.6. Reinstatement . . . . . . . . . . . . 48
ARTICLE FIVE REMEDIES. . . . . . . . . . . . . . . . . . . . 49
Section 5.1. Events of Default. . . . . . . . . . . 49
Section 5.2. Acceleration of Maturity; Rescission
and Annulment . . . . . . . . . . . . 51
Section 5.3. Collection of Indebtedness and Suits
for Enforcement by Trustee. . . . . . 52
Section 5.4. Trustee May File Proofs of Claim. . . 53
Section 5.5. Trustee May Enforce Claims Without
Possession of the Mortgage Notes. . . 54
Section 5.6. Application of Money Collected. . . . 55
Section 5.7. Limitation on Suits . . . . . . . . . 55
Section 5.8. Unconditional Right of Holders to
Receive Principal, Premium and
Interest. . . . . . . . . . . . . . . 56
Section 5.9. Restoration of Rights and Remedies. . 56
Section 5.10. Rights and Remedies Cumulative. . . . 56
Section 5.11. Delay or Omission Not Waiver. . . . . 57
Section 5.12. Control by Holders. . . . . . . . . . 57
(iv)
<PAGE>
Section 5.13. Waiver of Past Defaults . . . . . . . 57
Section 5.14. Undertaking for Costs . . . . . . . . 57
Section 5.15. Waiver of Stay, Extension or Usury
Laws. . . . . . . . . . . . . . . . . 58
Section 5.16. Unconditional Right of Holders to
Institute Certain Suits . . . . . . . 58
Section 5.17. Management of Casino-Hotel. . . . . . 59
ARTICLE SIX THE TRUSTEE . . . . . . . . . . . . . . . . . . 60
Section 6.1. Duties of Trustee and Notice of
Defaults. . . . . . . . . . . . . . . 60
Section 6.2. Certain Rights of Trustee . . . . . . 61
Section 6.3. Trustee Not Responsible for
Recitals, Dispositions of Mortgage
Notes or Application of Proceeds
Thereof . . . . . . . . . . . . . . . 63
Section 6.4. Trustee and Agents May Hold Mortgage
Notes; Collections; Etc . . . . . . . 63
Section 6.5. Money Held in Trust . . . . . . . . . 63
Section 6.6. Compensation and Indemnification of
Trustee and Its Prior Claim . . . . . 64
Section 6.7. Disqualification of Trustee . . . . . 65
Section 6.8. Corporate Trustee Required;
Eligibility . . . . . . . . . . . . . 65
Section 6.9. Resignation and Removal; Appointment
of Successor Trustee. . . . . . . . . 65
Section 6.10. Acceptance of Appointment by Successor 67
Section 6.11. Merger, Consolidation or Succession to
Business. . . . . . . . . . . . . . . 68
ARTICLE SEVEN HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY 69
Section 7.1. Company to Furnish Trustee Names and
Addresses of Holders. . . . . . . . . 69
Section 7.2. Disclosure of Names and Addresses of
Holders . . . . . . . . . . . . . . . 69
Section 7.3. Reports by Trustee. . . . . . . . . . 69
Section 7.4. Reports by the Company and the
Partnership . . . . . . . . . . . . . 71
ARTICLE EIGHT CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR
LEASE . . . . . . . . . . . . . . . . . . . . . 71
Section 8.1. Company or the Partnership May
Consolidate, Merge, etc., Only on
Certain Terms . . . . . . . . . . . . 71
Section 8.2. Successor Substituted . . . . . . . . 75
ARTICLE NINE SUPPLEMENTAL INDENTURES . . . . . . . . . . . . 75
Section 9.1. Supplemental Indentures and
Agreements without Consent of
Holders . . . . . . . . . . . . . . . 75
Section 9.2. Supplemental Indentures and
Agreements with Consent of Holders. . 76
(v)
<PAGE>
Section 9.3. Execution of Supplemental Indentures
and Agreements. . . . . . . . . . . . 78
Section 9.4. Effect of Supplemental Indentures . . 78
Section 9.5. Conformity with Trust Indenture Act . 78
Section 9.6. Reference in Mortgage Notes to
Supplemental Indentures . . . . . . . 78
Section 9.7. Record Date . . . . . . . . . . . . . 78
ARTICLE TEN COVENANTS . . . . . . . . . . . . . . . . . . . 79
Section 10.1. Payment of Principal, Premium and
Interest. . . . . . . . . . . . . . . 79
Section 10.2. Maintenance of Office or Agency . . . 79
Section 10.3. Money for Mortgage Note Payments to
be Held in Trust. . . . . . . . . . . 80
Section 10.4. Corporate and Partnership Existence . 81
Section 10.5. Payment of Taxes and Other Claims . . 81
Section 10.6. Maintenance of Properties . . . . . . 82
Section 10.7. Limitation on Partnership
Indebtedness. . . . . . . . . . . . . 82
Section 10.8. Limitation on Liens . . . . . . . . . 83
Section 10.9. Limitation on Restricted Payments . . 83
Section 10.10. Limitation on Partnership Leases. . . 87
Section 10.11. Limitation on Preferred Stock of
Subsidiaries and Subsidiary
Distributions . . . . . . . . . . . . 87
Section 10.12. Limitation on Payment Restrictions
Affecting Subsidiaries. . . . . . . . 88
Section 10.13. Purchase of Mortgage Notes upon
Change of Control . . . . . . . . . . 88
Section 10.14. Limitations on Transactions with
Affiliates. . . . . . . . . . . . . . 90
Section 10.15. Restriction on Transfer of Assets . . 91
Section 10.16. Limitation on Activities and
Investments . . . . . . . . . . . . . 91
Section 10.17. Restriction on Payment of Services
Fee . . . . . . . . . . . . . . . . . 92
Section 10.18. Provision of Financial Statements . . 92
Section 10.19. Statement by Officers as to Default . 93
Section 10.20. Waiver of Certain Covenants . . . . . 93
Section 10.21. Redemption of Certain Gaming Chips. . 94
ARTICLE ELEVEN REDEMPTION OF MORTGAGE NOTES. . . . . . . . . . 94
Section 11.1. Right of Redemption . . . . . . . . . 94
Section 11.2. Applicability of Article. . . . . . . 94
Section 11.3. Election to Redeem; Notice to Trustee 95
Section 11.4. Selection by Trustee of Mortgage
Notes to Be Redeemed. . . . . . . . . 95
Section 11.5. Notice of Redemption. . . . . . . . . 95
Section 11.6. Deposit of Redemption Price . . . . . 96
Section 11.7. Mortgage Notes Payable on Redemption
Date. . . . . . . . . . . . . . . . . 97
Section 11.8. Mortgage Notes Redeemed in Part . . . 97
(vi)
<PAGE>
Section 11.9. Mortgage Notes Redeemed Pursuant to
Casino Control Act. . . . . . . . . . 97
Section 11.10. Mortgage Notes Redeemed Pursuant to a
Total Taking or Casualty. . . . . . . 98
ARTICLE TWELVE MORTGAGE DOCUMENTS. . . . . . . . . . . . . . . 98
Section 12.1. Mortgage Documents. . . . . . . . . . 98
Section 12.2. Recording, Opinion of Counsel, Etc. . 99
Section 12.3. Release of Collateral . . . . . . . . 100
Section 12.4. Trust Indenture Act Requirements. . . 100
Section 12.5. Disposition of Certain Collateral
without Requesting Release. . . . . . 100
Section 12.6. Suits to Protect the Collateral . . . 102
Section 12.7. Determinations Relating to Collateral 102
Section 12.8. Impairment of Security Interest . . . 103
Section 12.9. Release Upon Termination of the
Company's Obligations . . . . . . . . 103
Section 12.10. Authorization of Receipt of Funds by
the Trustee Under the Mortgage
Documents . . . . . . . . . . . . . . 103
ARTICLE THIRTEEN SATISFACTION AND DISCHARGE . . . . . . . . 104
Section 13.1. Satisfaction and Discharge of
Indenture . . . . . . . . . . . . . . 104
Section 13.2. Application of Trust Money. . . . . . 105
ARTICLE FOURTEEN GUARANTEE. . . . . . . . . . . . . . . . . 105
Section 14.1. Partnership Guarantee . . . . . . . . 105
Section 14.2. Continuing Guarantee; No Right of
Set-Off; Independent Obligation . . . 106
Section 14.3. Guarantee Absolute. . . . . . . . . . 107
Section 14.4. Right to Demand Full Performance. . . 109
Section 14.5. Waivers . . . . . . . . . . . . . . . 109
Section 14.6. The Partnership Remains Obligated in
Event the Company Is No Longer
Obligated to Discharge Indenture
Obligations . . . . . . . . . . . . . 110
Section 14.7. Waiver of Rights. . . . . . . . . . . 110
Section 14.8. Guarantee Is in Addition to Other
Security. . . . . . . . . . . . . . . 111
Section 14.9. Release of Security Interests . . . . 111
Section 14.10. No Bar to Further Actions . . . . . . 111
Section 14.11. Failure to Exercise Rights Shall Not
Operate As a Waiver; No Suspension of
Remedies. . . . . . . . . . . . . . . 111
Section 14.12. Successors and Assigns. . . . . . . . 112
Section 14.13. Release of Guarantee. . . . . . . . . 112
Section 14.14. Execution of Guarantee. . . . . . . . 112
ARTICLE FIFTEEN HOLDERS' MEETINGS. . . . . . . . . . . . . 114
Section 15.1. Holders' Meetings Called by Trustee . 114
(vii)
<PAGE>
Section 15.2. Holders' Meetings Called by the
Company or Holders. . . . . . . . . . 114
Section 15.3. Attendance and Voting . . . . . . . . 114
Section 15.4. Conduct of Meetings; Adjournment. . . 115
Section 15.5. Manner of Voting. . . . . . . . . . . 115
Exhibit A Form of Partnership Note
Exhibit B Form of Note Mortgage
Exhibit C Form of Assignment Agreement
Exhibit D Form of Guarantee Mortgage
Schedule I Permitted Indebtedness of Partnership
Schedule II Permitted Investments
(viii)
<PAGE>
Reconciliation and tie between Trust
Indenture Act of 1939
and Indenture, dated as of December 28, 1993
Trust Indenture Indenture
Act Section Section
ss 310(a)(1) . . . . . . . . . . . . 6.8
(a)(2) . . . . . . . . . . . . 6.8
(b) . . . . . . . . . . . . 6.7, 6.9
ss 312(a) . . . . . . . . . . . . 7.1
(c) . . . . . . . . . . . . 7.2
ss 314(a) . . . . . . . . . . . . 7.4
(a)(4) . . . . . . . . . . . . 10.19
(b) . . . . . . . . . . . . 12.2
(c)(1) . . . . . . . . . . . . 1.3
(c)(2) . . . . . . . . . . . . 1.3
(e) . . . . . . . . . . . . 1.3
ss 315(b) . . . . . . . . . . . . 6.1
ss 316(a)(last
sentence) . . . . . . . . . . . . 1.1 ("Outstanding")
(a)(1)(A) . . . 5.2, 5.12
(a)(1)(B) . . . 5.13
(b) . . . . . . . . . . . . 5.8
(c) . . . . . . . . . . . . 9.7
ss 317(a)(1) . . . . . . . . . . . . 5.3
(a)(2) . . . . . . . . . . . . 5.4
318(a) . . . . . . . . . . . . 1.8
_____________________
Note: This reconciliation and tie shall not, for any purpose,
be deemed to be a part of the Indenture.
(ix)
<PAGE>
INDENTURE, dated as of December 28, 1993, among TRUMP'S
CASTLE FUNDING, INC., a New Jersey corporation (the "Company"), as
issuer, FIRST BANK NATIONAL ASSOCIATION, a national banking
association ("Trustee"), as trustee, and TRUMP'S CASTLE
ASSOCIATES, a New Jersey general partnership, as guarantor
("Partnership" or "Guarantor").
RECITALS OF THE COMPANY AND THE PARTNERSHIP
The Company has duly authorized the creation of an issue of
11-3/4% Mortgage Notes due 2003 (the "Mortgage Notes"), of
substantially the tenor and amount hereinafter set forth, and to
provide therefor the Company has duly authorized the execution and
delivery of this Indenture.
The Partnership has duly authorized the issuance of a
guarantee (the "Guarantee") of the Mortgage Notes, of
substantially the tenor hereinafter set forth, and to provide
therefor the Partnership has duly authorized the execution and
delivery of this Indenture and the Guarantee.
This Indenture is subject to, and shall be governed by, the
provisions of the Trust Indenture Act of 1939, as amended, that
are required to be part of and to govern indentures qualified
under such Trust Indenture Act.
All acts and things necessary have been done to make (i) the
Mortgage Notes, when executed by the Company and authenticated and
delivered hereunder and duly issued by the Company, the valid
obligations of the Company, (ii) the Guarantee, when executed by
the Partnership and delivered hereunder, the valid obligation of
the Partnership, and (iii) this Indenture a valid agreement of the
Company and the Partnership in accordance with its terms.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of
the Mortgage Notes by the Holders thereof, it is mutually
covenanted and agreed, for the equal and proportionate benefit of
all Holders of the Mortgage Notes, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.1. Definitions
For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires:
(1)
<PAGE>
(a) the terms defined in this Article have the meanings
assigned to them in this Article, and include the plural as well
as the singular;
(b) all other terms used herein which are defined in the
Trust Indenture Act, either directly or by reference therein, have
the meanings assigned to them therein;
(c) all accounting terms not otherwise defined herein have
the meanings assigned to them in accordance with GAAP;
(d) the words "herein," "hereof" and "hereunder" and other
words of similar import refer to this Indenture as a whole and not
to any particular Article, Section or other subdivision;
(e) "or" is not exclusive; and
(f) all references to $ or dollars shall refer to the
lawful currency of the United States of America.
Certain Definitions
"Acquired Indebtedness" means Indebtedness of a Person (a)
existing at the time such Person becomes a Subsidiary or (b)
assumed in connection with the acquisition of assets from such
Person, in each case, other than Indebtedness incurred in
connection with, or in contemplation of, such Person becoming a
Subsidiary or such acquisition. Acquired Indebtedness shall be
deemed to be incurred on the date of the related acquisition of
assets from any Person or the date the acquired Person becomes a
Subsidiary.
"Adjusted Consolidated Interest Expense" means, without
duplication, for any period, the sum of (a) the interest expense
of the Partnership and its Consolidated Subsidiaries for such
period, on a Consolidated basis, including, without limitation,
(i) amortization of debt discount, (ii) the net cost under
interest rate contracts (including amortization of discounts),
(iii) the interest portion of any deferred payment obligation and
(iv) accrued interest plus (b) the interest component of the
Capital Lease Obligations paid, accrued and/or scheduled to be
paid, or accrued by the Partnership and its Consolidated
Subsidiaries during such period, in each case as determined in
accordance with GAAP consistently applied.
"Adjusted Consolidated Net Income (Loss)" means, for any
period, the Consolidated net income (or loss) of the Partnership
and its Consolidated Subsidiaries for such period as determined in
accordance with GAAP consistently applied, adjusted, to the extent
included in calculating such net income (loss), by excluding (a)
all extraordinary gains or losses (less all fees and expenses
relating thereto), (b) the portion of net income (or loss) of the
(2)
<PAGE>
Partnership and its Consolidated Subsidiaries allocable to
minority interests in unconsolidated Persons to the extent that
cash dividends or distributions have not actually been received by
the Partnership or one of its Consolidated Subsidiaries, (c) net
income (or loss) of any Person combined with the Partnership or
any of the Subsidiaries on a "pooling of interests" basis
attributable to any period prior to the date of combination, (d)
any gain or loss, net of taxes, realized upon the termination of
any employee pension benefit plan, (e) net gains or losses (less
all fees and expenses relating thereto) in respect of dispositions
of assets other than in the ordinary course of business, or (f)
the net income of any Subsidiary to the extent that the
declaration of dividends or similar distributions by that
Subsidiary of that income is not at the time permitted, directly
or indirectly, by operation of the terms of its charter or any
agreement, instrument, judgment, decree, order, statute, rule or
governmental regulation applicable to that Subsidiary or its
shareholders.
"Affiliate" means, with respect to any specified Person, (a)
any other Person directly or indirectly controlling or controlled
by or under direct or indirect common control with such specified
Person or (b) any other Person that owns, directly or indirectly,
5% or more of such Person's Capital Stock or Equity Interest or
any officer or director of any such Person or other Person or with
respect to any natural Person, any person having a relationship
with such Person by blood, marriage or adoption not more remote
than first cousin. For the purposes of this definition, "control"
when used with respect to any specified Person means the power to
direct the management and policies of such Person directly or
indirectly, whether through ownership of voting securities, by
contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Appraised Value" shall have the meaning set forth in
Section 1.1 of the Note Mortgage.
"Assignment Agreement" means the Assignment Agreement between
the Company and the Trustee dated as of the date hereof, the form
of which is attached hereto as Exhibit C, providing for the
assignment of the Partnership Note and the Note Mortgage to the
Trustee by the Company and acknowledgement thereof by the
Guarantor.
"Average Life to Stated Maturity" means, as of the date of
determination with respect to any Indebtedness, the quotient
obtained by dividing (a) the sum of the products of (i) the number
of years from the date of determination to the date or dates of
each successive scheduled principal payment of such Indebtedness
multiplied by (ii) the amount of each such principal payment by
(b) the sum of all such principal payments.
(3)
<PAGE>
"Bankruptcy Law" means Title 11, United States Code, as
amended, or any similar United States federal or state law
relating to bankruptcy, insolvency, receivership, winding-up,
liquidation, reorganization or relief of debtors or any amendment
to, succession to or change in any such law.
"Board of Directors" means, with respect to the Company, the
board of directors of the Company or, with respect to the
Partnership, the board of partner representatives, or any duly
authorized committee of any such board.
"Board Resolution" means a copy of a resolution certified by
the Secretary or an Assistant Secretary of the Company or the
Partnership, as the case may be, to have been duly adopted by the
Board of Directors and to be in full force and effect on the date
of such certification, and delivered to the Trustee.
"Business Day" means each Monday, Tuesday, Wednesday,
Thursday and Friday which is not a day on which banking
institutions in The City of New York are authorized or obligated
by law or executive order to close.
"Cage Cash" means the sum of $5,000,000 retained for daily
operations of the Casino.
"Capital Lease Obligation" of any Person means any obligation
of such Person and its subsidiaries on a Consolidated basis under
any capital lease of real or personal property which, in
accordance with GAAP, has been recorded as a capitalized lease
obligation.
"Capital Stock" of any Person means any and all shares,
interests, participations or other equivalents (however
designated) of such Person's capital stock.
"Casino - Hotel" means the casino and hotel complex currently
known as the "Trump's Castle Casino Resort" in Atlantic City, New
Jersey and ancillary structures, marina and other facilities and
all furniture, fixtures and equipment at any time contained
therein, in each case owned by or leased to the Partnership and
covered by the lien of the Mortgage Documents.
"Casualty" means any act or occurrence of any kind or nature
which results in damage, loss or destruction to any buildings or
improvements on the Premises and/or Tangible Personal Property (as
such terms are defined in Section 1.1 of the Note Mortgage).
"CCC" means the New Jersey Casino Control Commission or any
successor entity thereto.
"Certificate of Appraised Value" shall have the meaning set
forth in Section 1.1 of the Note Mortgage.
(4)
<PAGE>
"Change of Control" means an event as a result of which (a)
the Permitted Holder does not have the right or ability by voting
power, contract or otherwise to elect or designate for election a
majority of the Board of Partner Representatives of the
Partnership or to control the management of the Partnership or (b)
the Partnership is liquidated or dissolved or adopts a plan of
liquidation or dissolution; provided, however, a Change of Control
shall not be deemed to occur as a result of one or more Public
Offerings so long as (i) the Permitted Holder continues to own
beneficially 20% or more of the voting equity securities of the
entity which conducted the Public Offering and (ii) no other
holder beneficially owns a greater percentage of such voting
securities of such entity than the Permitted Holder.
"Code" means the Internal Revenue Code of 1986, as amended.
"Collateral" means, collectively, all of the property and
assets that are from time to time subject to the Lien of the
Mortgage Documents.
"Company" means Trump's Castle Funding, Inc., a corporation
incorporated under the laws of the State of New Jersey or any
other obligor on the Mortgage Notes (other than the Partnership),
including any successor Person to Trump's Castle Funding, Inc. in
accordance with Article Eight hereof.
"Company Request" or "Company Order" means a written request
or order signed in the name of the Company by any one of its
Chairman of the Board, its Vice Chairman, its President or a vice
President, and by any one of its Treasurer, an Assistant
Treasurer, its Secretary or an Assistant Secretary, and delivered
to the Trustee.
"Consolidated Fixed Charge Coverage Ratio" means for any
period the ratio of (a) the sum of Adjusted Consolidated Net
Income, Adjusted Consolidated Interest Expense and Consolidated
Income Tax Expense, plus, without duplication, all depreciation,
amortization and all other non-cash charges (excluding any such
non-cash charges constituting an extraordinary item of loss or any
non-cash charge which requires an accrual of or a reserve for cash
charges for any future period) in each case, for such period, of
the Partnership and its Consolidated Subsidiaries on a
Consolidated basis, all determined in accordance with GAAP
consistently applied, to (b) Adjusted Consolidated Interest
Expense for such period.
"Consolidated Income Tax Expense" means for any period the
provision for federal, state, local and foreign income taxes of
the Partnership and its Consolidated Subsidiaries for such period
as determined in accordance with GAAP consistently applied.
(5)
<PAGE>
"Consolidated Net Worth" of any Person means the Consolidated
stockholders' equity (excluding Redeemable Capital Stock or
Redeemable Equity Interests) of such Person and its Consolidated
subsidiaries, as determined in accordance with GAAP consistently
applied.
"Consolidation" means, with respect to any Person, the
consolidation of the accounts of such Person and each of its
subsidiaries if and to the extent the accounts of such Person and
each of its subsidiaries would normally be consolidated with those
of such Person, all in accordance with GAAP consistently applied.
The term "Consolidated" shall have a similar meaning.
"Corporate Trust Office" means the office of the Trustee, or
its agent, at which at any particular time its corporate trust
business shall be administered, which office at the date of
execution of this Indenture is located at 180 East Fifth Street,
St. Paul, Minnesota 55101.
"CRDA" means the Casino Reinvestment Development Authority or
any successor entity thereto.
"Default" means any event which is, or after notice or
passage of time or both would be, an Event of Default.
"EBITDA" means, for the relevant accounting period, an amount
equal to the sum of (i) the net income (or loss) of the
Partnership for such period determined in accordance with
generally accepted accounting principles, consistently applied,
excluding any extraordinary, unusual or non-recurring gains
(including without limitation those gains arising from
dispositions of assets or from the purchase, redemption or
discharge of any indebtedness), and excluding any extraordinary,
unusual or non-recurring losses arising from (A) transactions or
events approved by not less than two of the Noteholder
Representatives (so long as such approval includes an explicit
finding that any such losses arising from such transaction or
event are to be so excluded pursuant to this clause (A)) or
(B) the purchase, redemption or discharge of any indebtedness in
respect of the Mortgage Notes or PIK Notes, plus (ii) all amounts
deducted in computing such net income (or loss) in respect of
interest (including the imputed interest portions of rentals under
Capitalized Leases), depreciation, amortization and taxes based
upon or measured by income, plus (iii) other non-cash charges
arising from market value adjustments and adjustments pertaining
to contributions of deposits in each case in respect of CRDA
Bonds.
"Equity Interest" of any Person means any shares, interests,
participations or other equivalents (however designated) of such
Person in equity.
(6)
<PAGE>
"Equity Offering" has the meaning specified in Section 11.11
of the PIK Note Indenture.
"Event of Default" has the meaning specified in Article Five.
"Excess Available Cash" shall be calculated semi-annually on
June 30 and December 31 and means the sum of the Partnership's
cash and cash equivalents as shown on its balance sheet at such
date less the sum of (1) the Partnership's Cage Cash, (2) the
Partnership's working capital reserve of $10 million less the
amount, if any, available to the Partnership under the Working
Capital Facility, (3) the aggregate amount required to meet the
cash interest payments due on all Permitted Indebtedness on the
respective next interest payment dates and the sinking fund
payment on the Senior Notes due during the succeeding six month
period, (4) distributions to be made during the succeeding six
month period in respect of taxes as contemplated by clause (c) of
Section 10.9(6)(ix) hereof, and (5) amounts required to meet the
Partnership's Capital Expenditures (as defined in the Partnership
Agreement), CRDA bond payments and other fixed charges projected
during the succeeding six month period.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"F,F&E Financing Agreement" means an agreement which creates
a Lien upon any after-acquired Tangible Personal Property (as
defined in the Note Mortgage) and/or other items constituting
Operating Assets (as defined in the Note Mortgage), which are
financed, purchased or leased by the Partnership.
"Fair Market Value" means, with respect to any asset or
property, the sale value that would be obtained in an arm's-length
transaction between an informed and willing seller under no
compulsion to sell and an informed and willing buyer under no
compulsion to buy and, with respect to any Mortgage Notes redeemed
under Section 11.9, means (a) the last sales price regular way on
the last trading day prior to the date of determination of such
value on the largest national securities exchange (or, if said
security is not listed on a national securities exchange, on the
National Market System of the National Association of Securities
Dealers, Inc. Automated Quotation System ("NASDAQ")) on which such
Mortgage Notes shall have traded on such trading day, or (b) if no
such sales of such Mortgage Notes occurred on such trading day,
the mean between the "bid" and "asked" prices on such national
securities exchange or as quoted on the National Market System of
NASDAQ, as the case may be, on such last trading day, or (c) if
the Mortgage Notes are not listed or quoted on any national
securities exchange or the National Market System of NASDAQ, the
average of the closing bid and asked prices on such day in the
over-the-counter market as reported by NASDAQ or, if bid and asked
prices for the Mortgage Notes have not been reported through
(7)
<PAGE>
NASDAQ, the average of the bid and asked prices on such day as
furnished by any New York Stock Exchange member firm regularly
making a market in the Mortgage Notes, selected for such purpose
by the Company, or (d) if none of clauses (a) through (c) are
applicable, the fair market value of such Mortgage Notes as of the
date of determination as determined in such manner as shall be
satisfactory to the Company, which shall be entitled to rely for
such purpose on the advice of any firm of investment bankers or
securities dealers having familiarity with the Mortgage Notes.
"Gaming Authority" means the CCC, the NJDGE or any other
governmental agency which regulates gaming in a jurisdiction in
which the Partnership conducts gaming activities.
"Generally Accepted Accounting Principles" or "GAAP" means
generally accepted accounting principles in the United States,
consistently applied, which are in effect on the date of this
Indenture.
"Guarantee" means the guarantee by the Partnership of the
Company's Indenture Obligations pursuant to the guarantee included
in this Indenture.
"Guarantee Mortgage" means the Indenture of Mortgage and
Security Agreement dated as of the date hereof between the
Trustee, as mortgagee, and the Partnership, as mortgagor, a copy
of which is attached hereto as Exhibit D.
"Guaranteed Debt" of any Person means, without duplication,
all Indebtedness of any other Person referred to in the definition
of Indebtedness contained in this section guaranteed directly or
indirectly in any manner by such Person, or in effect guaranteed
directly or indirectly by such Person through an agreement (a) to
pay or purchase such Indebtedness or to advance or supply funds
for the payment or purchase of such Indebtedness, (b) to purchase,
sell or lease (as lessee or lessor) property, or to purchase or
sell services, primarily for the purpose of enabling the debtor to
make payment of such Indebtedness or to assure the holder of such
Indebtedness against loss, (c) to supply funds to, or in any other
manner invest in, the debtor (including any agreement to pay for
property or services without requiring that such property be
received or such services be rendered), (d) to maintain working
capital or equity capital of the debtor, or otherwise to maintain
the net worth, solvency or other financial condition of the debtor
or (e) otherwise to assure a creditor against loss; provided that
the term "guarantee" shall not include endorsements for collection
or deposit, in either case in the ordinary course of business;
provided further, that the obligations of the Partnership pursuant
to the Services Agreement as in effect on the date of this
Indenture shall not be deemed to be Guaranteed Debt of the
Partnership.
(8)
<PAGE>
"Holder" means a Person in whose name a Mortgage Note is
registered in the Mortgage Note Register.
"Indebtedness" means, with respect to any Person, without
duplication, (a) all indebtedness of such Person for borrowed
money or for the deferred purchase price of property or services,
excluding any trade payables and other accrued current liabilities
arising in the ordinary course of business, but including, without
limitation, all obligations, contingent or otherwise, of such
Person in connection with any letters of credit issued under
letter of credit facilities, acceptance facilities or other
similar facilities and in connection with any agreement to
purchase, redeem, exchange, convert or otherwise acquire for value
any Capital Stock or Equity Interest of such Person, or any
warrants, rights or options to acquire such Capital Stock or
Equity Interest, now or hereafter outstanding, (b) all obligations
of such Person evidenced by bonds, notes, debentures or other
similar instruments, (c) every obligation of such Person issued or
contracted for as payment in consideration of the purchase by such
Person or an Affiliate of such Person of the Capital Stock or
Equity Interest or substantially all of the assets of another
Person or in consideration for the merger or consolidation with
respect to which such Person or an Affiliate of such Person was a
party, (d) all indebtedness created or arising under any
conditional sale or other title retention agreement with respect
to property acquired by such Person (even if the rights and
remedies of the seller or lender under such agreement in the event
of default are limited to repossession or sale of such property),
but excluding trade payables and other accrued current liabilities
arising in the ordinary course of business, (e) all obligations
under interest rate contracts of such Person, (f) all Capital
Lease Obligations of such Person, (g) all Indebtedness referred to
in clauses (a) through (f) above of other Persons and all
dividends of other Persons, the payment of which are secured by
(or for which the holder of such Indebtedness has an existing
right, contingent or otherwise, to be secured by) any Lien upon or
in property (including, without limitation, accounts and contract
rights) owned by such Person, even though such Person has not
assumed or become liable for the payment of such Indebtedness, (h)
all Guaranteed Debt of such Person, (i) all Redeemable Capital
Stock or Redeemable Equity Interests valued at the greater of its
voluntary or involuntary maximum fixed repurchase price plus
accrued and unpaid dividends, and (j) any amendment, supplement,
modification, deferral, renewal, extension or refunding of any
liability of the types referred to in clauses (a) through (i)
above. For purposes hereof, the "maximum fixed repurchase price"
of any Redeemable Capital Stock or Redeemable Equity Interest
which does not have a fixed repurchase price shall be calculated
in accordance with the terms of such Redeemable Capital Stock or
Redeemable Equity Interest as if such Redeemable Capital Stock or
Redeemable Equity Interest were purchased on any date on which
Indebtedness shall be required to be determined pursuant to this
(9)
<PAGE>
Indenture, and if such price is based upon, or measured by, the
Fair Market Value of such Redeemable Capital Stock or Redeemable
Equity Interest, such Fair Market Value to be determined in good
faith by the board of directors of the issuer (or managing general
partner of the issuer) of such Redeemable Capital Stock or
Redeemable Equity Interest.
"Indenture" means this instrument as originally executed and
as it may from time to time be supplemented or amended by one or
more indentures supplemental hereto entered into pursuant to the
applicable provisions hereof.
"Indenture Obligations" means the obligations of the Company,
the Partnership and any other obligor under this Indenture or
under the Mortgage Notes, to pay principal of, premium, if any,
and interest when due and payable, and all other amounts due or to
become due under or in connection with this Indenture, the
Mortgage Notes and the performance of all other obligations to the
Trustee and the Holders under this Indenture, the Mortgage Notes
and the Mortgage Documents, according to the terms thereof.
"Interest Payment Date" means the Stated Maturity of an
installment of interest on the Mortgage Notes.
"Investments" means, with respect to any Person, directly or
indirectly, any advance, loan or other extension of credit or
capital contribution to (by means of any transfer of cash or other
property to others or any payment for property or services for the
account or use of others), or any purchase or other acquisition by
such Person of any Capital Stock, Equity Interest, bonds, notes,
debentures or other securities or assets issued or owned by, any
other Person.
"Legal Requirements" has the meaning set forth in Section 1.1
of the Note Mortgage.
"Lien" means any mortgage, charge, pledge, lien (statutory or
otherwise), privilege, security interest, hypothecation or other
encumbrance upon or with respect to any property of any kind, real
or personal, movable or immovable, now owned or hereafter
acquired.
"Litigation Warrants" means warrants to be issued by Trump's
Castle Hotel & Casino, Inc. for additional equity securities
representing a 0.5% common equity interest in the Partnership
pursuant to the terms of a settlement agreement arising out of
certain securities litigation.
"Marina Lease" means the lease agreement made September 1,
1990 between the State of New Jersey, as Landlord, and the
Partnership, as tenant, respecting property known as the Senator
Frank S. Farley State Marina, Atlantic City, New Jersey, being
(10)
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designated as a portion of Block B-4, Lot 11 on the tax map of the
City of Atlantic City, Atlantic County, New Jersey, together with
all amendments, restatements, extensions and renewals thereof.
"Maturity" when used with respect to any Mortgage Note means
the date on which the principal of such Mortgage Note becomes due
and payable as therein provided or as provided in this Indenture,
whether at Stated Maturity, Change of Control Purchase Date, or
the Redemption Date and whether by declaration of acceleration,
Change of Control Offer, call for redemption or otherwise.
"Midlantic Term Loan" means the secured indebtedness in a
principal amount not to exceed $38,000,000 evidenced by the
Amended and Restated Credit Agreement, dated as of May 29, 1992,
between the Company, the Partnership and Midlantic National Bank,
together with all amendments, restatements, extensions and
renewals thereof.
"Mortgage Debt" means any Indebtedness secured by Liens
(other than involuntary Liens) on any portion of the Collateral.
"Mortgage Documents" means (i) the Partnership Note, (ii) the
Guarantee, (iii) the Note Mortgage, (iv) the Assignment Agreement,
(v) the Guarantee Mortgage, and (vi) any other security document
to which the Partnership, the Company or the Trustee is a party,
which is executed and delivered pursuant to or in connection with
the foregoing documents described in clauses (i) through (v), as
each such agreement may be amended, renewed, extended,
substituted, refinanced, restructured, replaced, supplemented or
otherwise modified from time to time in accordance with the
provisions of this Indenture and the Mortgage Documents.
"Mortgage Note Register" and "Mortgage Note Registrar" have
the respective meanings specified in Section 3.5.
"Mortgage Notes", has the meaning specified in the first
recital of this Indenture.
"NASDAQ" is defined under the definition of "Fair Market
Value."
"Net Cash Proceeds" of an issuance means the cash proceeds of
such issuance, net of attorney's fees, accountant's fees,
brokerage, consultant, underwriting and other fees and expenses
actually incurred in connection with such issuance, sale,
conversion or exchange and net of taxes paid or payable as a
result thereof.
"NJDGE" means the New Jersey Division of Gaming Enforcement
or any successor entity thereto.
(11)
<PAGE>
"Note Mortgage" means the Indenture of Mortgage and Security
Agreement, dated as of the date hereof between the Company, as
mortgagee, and the Partnership, as mortgagor, a copy of which is
attached hereto as Exhibit B.
"Noteholder Representatives" shall have the meaning set forth
in the Partnership Agreement.
"Officers' Certificate" means a certificate signed by the
President or a Vice President, and by the Treasurer, Assistant
Treasurer, Secretary or an Assistant Secretary, of the Company or
the Partnership, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who
may be counsel for the Company or the Trustee.
"Outstanding" when used with respect to Mortgage Notes means,
as of the date of determination, all Mortgage Notes theretofore
authenticated and delivered under this Indenture, except:
(a) Mortgage Notes theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(b) Mortgage Notes, or portions thereof, for whose payment
or redemption money in the necessary amount has been theretofore
deposited with the Trustee or any Paying Agent (other than the
Company) in trust or set aside and segregated in trust by the
Company (if the Company shall act as its own Paying Agent) for the
Holders of such Mortgage Notes; provided that if such Mortgage
Notes are to be redeemed, notice of such redemption has been duly
given pursuant to this Indenture or provision therefor
satisfactory to the Trustee has been made; and Mortgage Notes,
except to the extent provided in Sections 4.2 and 4.3, with
respect to which the Company has effected defeasance or covenant
defeasance as provided in Article Four; and
(c) Mortgage Notes in exchange for or in lieu of which other
Mortgage Notes have been authenticated and delivered pursuant to
this Indenture, other than any such Mortgage Notes in respect of
which there shall have been presented to the Trustee proof
satisfactory to it that such Mortgage Notes are held by a bona
fide purchaser in whose hands the Mortgage Notes are valid
obligations of the Company;
provided, however, that in determining whether the Holders of the
requisite principal amount of outstanding Mortgage Notes have
given any request, demand, authorization, direction, notice,
consent or waiver hereunder, Mortgage Notes owned by the Company,
the Partnership, or any other obligor upon the Mortgage Notes or
any Affiliate of the Company, the Partnership, any guarantor or
such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall
(12)
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be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Mortgage
Notes which the Trustee knows to be so owned shall be so
disregarded. Mortgage Notes so owned which have been pledged in
good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Trustee the pledgor's right
so to act with respect to such Mortgage Notes and that the pledgee
is not the Company, the Partnership or any other obligor upon the
Mortgage Notes or any Affiliate of the Company, the Partnership or
such other obligor.
"Outstanding Amount" of any Indebtedness at any time means
the principal amount outstanding of such Indebtedness at such
time, unless such Indebtedness was issued at a discount, in which
case the "Outstanding Amount" of such Indebtedness means the
original issue price of such Indebtedness plus the accretion to
such time of the original issue discount, determined in accordance
with Generally Accepted Accounting Principles.
"Pari Passu Indebtedness" means any Indebtedness of the
Partnership that is Pari Passu in right of payment to the
Guarantee.
"Partnership" means Trump's Castle Associates, a New Jersey
general partnership, and any successor Person to Trump's Castle
Associates in accordance with Article Eight hereof.
"Partnership Agreement" means the Partnership's Amended and
Restated Partnership Agreement, dated as of May 29, 1992, as in
effect on the date of this Indenture as it may be amended and
restated by the Second Amended and Restated Partnership Agreement
of the Partnership in the form filed as an Exhibit to the
Registration Statement of which the Prospectus is a part, as
amended from time to time in accordance with the terms hereof and
thereof.
"Partnership Note" means the Note dated as of the date hereof
in the principal amount of $242,141,304 made by the Partnership in
favor of the Company, a copy of which is attached hereto as
Exhibit A.
"Paying Agent" means any Person authorized by the Company to
pay the principal, premium, if any, or interest on any Mortgage
Notes on behalf of the Company.
"Permit" means any license, franchise, authorization,
statement of compliance, certificate of operation, certificate of
occupancy and permit required for the lawful ownership, occupancy,
operation and use of all or a material portion of the Collateral
whether held by the Partnership or any other Person (which may be
temporary or permanent) (including, without limitation, those
(13)
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required for the use of the Casino Hotel as a licensed casino
facility), in accordance with all applicable Legal Requirements.
"Permitted Holder" means Donald J. Trump and any corporation
or other entity that is controlled by Donald J. Trump.
"Permitted Indebtedness" means the following:
(a) Indebtedness of the Partnership and the Company pursuant
to the Midlantic Term Loan;
(b) Indebtedness of the Company and the Partnership pursuant
to the Senior Note Documents;
(c) Indebtedness of the Partnership pursuant to a Working
Capital Facility;
(d) Indebtedness of the Partnership and the Company pursuant
to this Indenture and the Mortgage Documents;
(e) Indebtedness of the Partnership and the Company pursuant
to the PIK Note Indenture and the Pledge Agreement;
(f) Indebtedness of the Partnership outstanding on
the date of this Indenture and listed on Schedule I hereto;
(g) Indebtedness of the Partnership or any
Wholly-owned Subsidiary to any one or the other of them;
(h) Indebtedness of the Partnership or any Subsidiary
represented by F,F&E Financing Agreements, provided, however, that
the aggregate principal amount of Indebtedness permitted by this
clause (h) shall not exceed at any one time outstanding (i)
$2,000,000 or (ii) $25,000,000 following the time at which the
Partnership shall have achieved EBITDA for any period of four
consecutive fiscal quarters in an amount not less than
$45,000,000;
(i) Indebtedness in respect of Capital Lease Obligations or
secured purchase money security interests of the Partnership or
any Subsidiary, in either case not created by an F, F & E
Financing Agreement, provided, however, that the aggregate
principal amount of all such Capitalized Lease Obligations
permitted by this clause (i) shall not exceed at any one time
outstanding (i) $10,000,000 or (ii) $15,000,000 following the time
at which the Partnership shall have achieved EBITDA for any period
of four consecutive fiscal quarters in an amount not less than
$60,000,000 and provided, further, that the aggregate principal
amount of all such Indebtedness secured by purchase money security
interests shall not exceed at any one time outstanding
$10,000,000;
(14)
<PAGE>
(j) any renewals, extensions, substitutions, refundings,
refinancings or replacements of any Indebtedness described in
clauses (a) through (i) of this definition of "Permitted
Indebtedness," including any successive renewals, extensions,
substitutions, refundings, refinancings or replacements so long as
the aggregate principal amount of Indebtedness represented thereby
does not exceed the principal amount of such Indebtedness being
renewed, extended, substituted, refunded, refinanced or replaced
(or, if such Indebtedness provides for an amount less than the
principal amount thereof to be due and payable upon a declaration
of acceleration thereof, such lesser amount as of the date of
determination) plus accrued interest thereon, plus, in the case of
refinancings, the amount of any premium or other payment required
to be paid under the terms of the instrument governing such
Indebtedness or the amount of any premium reasonably determined by
the Partnership as necessary to accomplish such refinancing by
means of a tender offer or privately negotiated purchase and, in
each case, actually paid, plus the amount of expenses of the
Partnership incurred in connection with such refinancing and such
renewal, extension, substitution, refinancing or replacement does
not reduce the Average Life to Stated Maturity or the final Stated
Maturity of such Indebtedness; and
(k) Indebtedness of the Company and the Partnership with
respect to the Company's 9.5% Mortgage Bonds due August 15, 1998
until the defeasance thereof has been consummated in connection
with the recapitalization of the Company of which the issuance of
the Mortgage Notes is an integral part.
"Permitted Investment" means (a) Investments in any of the
Senior Notes, Mortgage Notes or the PIK Notes; (b) Temporary Cash
Investments; (c) intercompany notes to the extent permitted under
the definition of "Permitted Indebtedness"; and (d) any
Investments in existence on the date of this Indenture and listed
on Schedule II to this Indenture.
"Permitted Leases" means the following:
(i) the Marina Lease;
(ii) any Capital Lease Obligation permitted by clause (i) of
the definition of "Permitted Indebtedness"; and
(iii) Leases other than Capital Lease Obligations and the
Marina Lease; provided, however, that the aggregate fixed rental
payments paid or accrued for any period of four consecutive fiscal
quarters commencing after the date hereof under all such leases
(including payments required to be made by the lessee in respect
of taxes and insurance, whether or not denominated as rent), shall
not exceed for such period (a) $2,000,000 or (b) $7,500,000
following the time at which the Partnership shall have achieved
(15)
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EBITDA for any period of four consecutive fiscal quarters in an
amount not less than $45,000,000.
"Permitted Liens" means:
(a) any Lien existing as of the date of this Indenture under
the Midlantic Term Loan, the Senior Note Mortgage, the Senior
Guarantee Mortgage, the Mortgage Documents (including, without
limitation, "Permitted Encumbrances" and "Restricted Encumbrances"
both as defined in the Note Mortgage), and the Pledge Agreement,
"Permitted Encumbrances" hereafter arising and permitted under the
Mortgage Documents, and any Lien hereafter arising under a Working
Capital Facility;
(b) Capital Lease Obligations and purchase money liens
included in Permitted Indebtedness;
(c) the Lien in favor of the Trustee pursuant to Section 6.6
of the Indenture, the Lien in favor of the trustee pursuant to
Section 6.6 of the PIK Note Indenture and the Lien in favor of the
trustee pursuant to Section 6.6 of the Senior Note Indenture;
(d) any Lien arising by reason of (i) any judgment,
decree or order of any court, so long as such Lien is adequately
bonded and any appropriate legal proceedings which may have been
duly initiated for the review of such judgment, decree or order
shall not have been finally terminated or the period within which
such proceedings may be initiated shall not have expired; (ii)
security for payment of workmen's compensation or other insurance;
(iii) good faith deposits in connection with tenders, leases,
contracts (other than contracts for the payment of money); and
(iv) deposits to secure public or statutory obligations, or in
lieu of surety or appeal bonds; and
(e) any Lien arising by reason of any renewal, extension,
substitution, refunding, refinancing or replacement of any
Indebtedness permitted by clause (j) of the definition of
Permitted Indebtedness.
"Person" means any individual, corporation, limited or
general partnership, joint venture, association, joint stock
company, trust, unincorporated organization or government or any
agency or political subdivision thereof.
"PIK Note Indenture" means that certain Indenture among the
Company, as issuer, the Partnership, as guarantor, and First Bank
National Association, as trustee, dated of even date herewith,
relating to the PIK Notes as it may from time to time be
supplemented or amended by one or more indentures supplemental
thereto.
(16)
<PAGE>
"PIK Notes" means the Subordinated Pay-in-Kind Notes due 2005
issued by the Company pursuant to the PIK Note Indenture in
aggregate principal amount not to exceed $52,066,127 plus the
aggregate principal amount of PIK Notes issued as payment of
interest thereon.
"Pledge Agreement" means a certain Pledge Agreement of even
date herewith by the Company in favor of and for the benefit of
the Trustee, as trustee, relating to the collateral for the PIK
Notes.
"Predecessor Mortgage Note" of any particular Mortgage Note
means every previous Mortgage Note evidencing all or a portion of
the same debt as that evidenced by such particular Mortgage Note;
and, for the purposes of this definition, any Mortgage Note
authenticated and delivered under Section 3.6 in exchange for a
mutilated Mortgage Note or in lieu of a lost, destroyed or stolen
Mortgage Note shall be deemed to evidence the same debt as the
mutilated, lost, destroyed or stolen Mortgage Note.
"Preferred Stock" means, with respect to any Person, any and
all shares, interests, participations or other equivalents
(however designated) of such Person's preferred or preference
stock whether now outstanding, or issued after the date of this
Indenture, and including, without limitation, all classes and
series of preferred or preference stock.
"Prospectus" means the Prospectus, dated November 22, 1993,
relating to the Mortgage Notes and the Guarantee in the form in
which it was first filed with the SEC pursuant to Rule 424(b)
under the Securities Act, or, if no such filing is required, in
the form included in the Registration Statement on Form S-4 filed
with the SEC with respect to the Mortgage Notes and the Guarantee
upon the date of its effectiveness.
"Public Offering" shall mean a registered public offering of
a direct or indirect equity interest in the Partnership.
"Qualified Capital Stock" of any Person means any and all
Capital Stock of such Person other than Redeemable Capital Stock.
"Qualified Equity Interest" of any Person means any Equity
Interests of such Person other than Redeemable Equity Interests.
"Redeemable Capital Stock" means any Capital Stock that,
either by its terms, by the terms of any security into which it is
convertible or exchangeable or otherwise, is or upon the happening
of an event (other than the disqualification of the holder thereof
by the CCC) or passage of time would be, required to be redeemed
prior to any Stated Maturity of the principal of the Mortgage
Notes or is redeemable at the option of the holder thereof at any
time prior to any such Stated Maturity, or is convertible into or
(17)
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exchangeable for debt securities at any time prior to any such
Stated Maturity at the option of the holder thereof.
"Redeemable Equity Interest" means any Equity Interest that,
either by its terms, by the terms of any security into which it is
convertible or exchangeable or otherwise, is or upon the happening
of an event (other than the disqualification of the holder thereof
by the CCC) or passage of time would be, required to be redeemed
prior to any Stated Maturity of the principal of the Mortgage
Notes or is redeemable at the option of the holder thereof at any
time prior to any such Stated Maturity, or is convertible into or
exchangeable for debt securities at any time prior to any such
Stated Maturity at the option of the holder thereof.
"Redemption Date" when used with respect to any Mortgage Note
to be redeemed means the date fixed for such redemption by or
pursuant to this Indenture.
"Redemption Price" when used with respect to any Mortgage
Note to be redeemed means the price at which it is to be redeemed
pursuant to this Indenture.
"Regular Record Date" for the interest payable on any
Interest Payment Date means May 1 or November 1 (whether or not a
Business Day) next preceding such Interest Payment Date.
"Responsible Officer" when used with respect to the Trustee
means any officer assigned to the Corporate Trust Office or any
agent of the Trustee appointed hereunder, including any vice
president, assistant vice president, assistant secretary, or any
other officer or assistant officer of the Trustee or the agent of
the Trustee appointed hereunder to whom any corporate trust matter
is referred because of his or her knowledge of and familiarity
with the particular subject.
"Restoration" shall have the meaning set forth in Section 1.1
of the Note Mortgage.
"SEC" means the Securities and Exchange Commission, as from
time to time constituted, created under the Exchange Act, or if at
any time after the execution of this Indenture such SEC is not
existing and performing the duties now assigned to it under the
Trust Indenture Act, then the body performing such duties at such
time.
"Securities Act" means the Securities Act of 1933, as
amended.
"Senior Assignment Agreement" means the Senior Assignment
Agreement, dated of even date herewith, between the Company and
the trustee under the Senior Note Indenture, providing for the
assignment of the Senior Partnership Note and the Senior Note
(18)
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Mortgage to said trustee, and the acknowledgement thereof by the
Partnership.
"Senior Guarantee" means the guarantee by the Partnership of
the Company's obligations under the Senior Note Indenture pursuant
to the guarantee included therein.
"Senior Guarantee Mortgage" means the Indenture of Mortgage
and Security Agreement, dated as of the date hereof, between the
trustee under the Senior Note Indenture, as mortgagee, and the
Partnership, as mortgagor, securing the Senior Guarantee.
"Senior Indebtedness" means (a) the Midlantic Term Loan; (b)
Indebtedness evidenced by the Senior Note Documents; (c)
Indebtedness evidenced by the Working Capital Facility, if
obtained; and any renewals, extensions, substitutions, refundings,
refinancings or replacements thereof.
"Senior Note Documents" means the Senior Note Indenture, the
Senior Partnership Note, the Senior Guarantee, the Senior Note
Mortgage, the Senior Assignment Agreement, the Senior Guarantee
Mortgage and any other security document executed and delivered
pursuant to or in connection with the foregoing, as each may be
amended, renewed, extended, substituted, refinanced, restructured
or otherwise modified.
"Senior Note Indenture" means that certain indenture, dated
of even date herewith, among the Company, as issuer, the
Partnership, as guarantor, and First Bank National Association, as
trustee, relating to the Company's Senior Notes as it may from
time to times be supplemented or amended by one or more indenture
supplemental thereto.
"Senior Note Mortgage" means the Indenture of Mortgage and
Security Agreement, dated as of the date hereof, between the
Company, as mortgagee, and the Partnership, as mortgagor, securing
the Senior Partnership Note.
"Senior Notes" means the Company's 11.5% Senior Secured Notes
due 2000.
"Senior Partnership Note" means the Note dated as of the date
hereof in the principal amount of $27,000,000 made by the
partnership in favor of the Company, evidencing the proceeds of
the Senior Notes, and pledged to the trustee under the Senior
Assignment Agreement.
"Services Agreement" means that certain services agreement,
dated of even date herewith, between the Partnership and TC/GP,
Inc. relating to the provision of advertising and other consulting
services to the Partnership.
(19)
<PAGE>
"Services Fee" means, for any period, the amount of the fee
payable by the Partnership under the Services Agreement for such
period.
"Special Record Date" for the payment of any Defaulted
Interest means a date fixed by the Trustee pursuant to Section
3.7.
"Stated Maturity" when used with respect to any Indebtedness
or any installment of interest thereon means the dates specified
in such Indebtedness as the fixed date on which the principal of
such Indebtedness or such installment of interest is due and
payable.
"Subordinated Indebtedness" means Indebtedness of the
Partnership subordinated in right of payment to the Guarantee.
"Subordinated Partnership Note" means the Subordinated
Partnership Note dated as of the date hereof in the principal
amount of up to $50,499,476 made by the Partnership in favor of
the Company and pledged to the Trustee under the PIK Note
Indenture under the Pledge Agreement.
"Subsidiary" means any Person a majority of the equity
ownership or the Voting Stock of which is at the time owned,
directly or indirectly, by the Partnership or by one or more other
Subsidiaries, or by the Partnership and one or more other
Subsidiaries.
"Taking" means the acquisition or condemnation by eminent
domain of the whole or any part of the Premises (as such term is
defined in Section 1.1 of the Note Mortgage), by a competent
authority, for any public or quasi-public use or purpose.
"Temporary Cash Investments" means (a) any evidence of
Indebtedness, maturing not more than one year after the date of
acquisition, issued by the United States of America, or an
instrumentality or agency thereof and guaranteed fully as to
principal, premium, if any, and interest by the United States of
America, (b) any certificate of deposit, maturing not more than
one year after the date of acquisition, issued by, or time deposit
of, a commercial banking institution that is a member of the
Federal Reserve System and that has combined capital and surplus
and undivided profits of not less than $300,000,000, whose debt
has a rating, at the time as of which any investment therein is
made, of "P-1" (or higher) according to Moody's Investors Service,
Inc. or any successor rating agency, or "A-1" (or higher)
(20)
<PAGE>
according to Standard & Poor's Corporation or any successor rating
agency, (c) commercial paper, maturing not more than one year
after the date of acquisition, issued by a corporation (other than
an Affiliate or subsidiary of the Company or the Partnership)
organized and existing under the laws of the United States of
America with a rating, at the time as of which any investment
therein is made, of "P-1" (or higher) according to Moody's
Investors Service, Inc. or any successor rating agency, or "A-1"
(or higher) according to Standard & Poor's Corporation or any
successor rating agency, and (d) any money market deposit accounts
issued or offered by a domestic commercial bank having capital and
surplus in excess of $300,000,000.
"Total Taking or Casualty" means a Taking or Casualty with
respect to which, pursuant to the provisions of the Note Mortgage,
any proceeds resulting from such Taking or Casualty are to be used
to pay amounts due under the Partnership Note and the Note
Mortgage and not for purposes of Restoration.
"Trump Priority Interest" means, at any date, an amount equal
to $15.0 million, less certain cash distributions made thereon
pursuant to the Partnership Agreement.
"Trust Indenture Act" means the Trust Indenture Act of 1939,
as amended.
"Trustee" means the Person named as the "Trustee" in the
first paragraph of this instrument, until a successor trustee
shall have become such pursuant to the applicable provisions of
this Indenture, and thereafter "Trustee" shall mean such successor
trustee.
"Voting Stock" means stock of the class or classes pursuant
to which the holders thereof have the general voting power under
ordinary circumstances to elect at least a majority of the board
of directors, managers or trustees of a corporation (irrespective
of whether or not at the time stock of any other class or classes
shall have or might have voting power by reason of the happening
of any contingency).
"Wholly-owned Subsidiary" means a Subsidiary all the
Capital Stock of which is owned by the Partnership or by one or
more Wholly-owned Subsidiaries or by the Partnership and one or
more Wholly-owned Subsidiaries; provided, however, that the
Company shall not be considered a Wholly-owned Subsidiary of the
Guarantor.
"Working Capital Facility" means one or more lending
agreements between the Partnership and responsible financing
sources, pursuant to which the Partnership may incur Indebtedness
to meet its working capital requirements in an aggregate principal
amount at any one time outstanding not to exceed $10,000,000.
(21)
<PAGE>
Section 1.2. Other Definitions.
Defined in
Term Section
____ _________
"Act" 1.5(a)
"Change of Control Offer"" 10.13
"Change of Control Purchase Date" 10.13
"Change of Control Purchase Price" 10.13
"covenant defeasance" 4.3
"Defaulted Interest" 3.7
"defeasance" 4.2
"Defeased Mortgage Notes" 4.1
"incorporated provision" 1.8
"Restricted Payments" 10.9
"Surviving Entity" 8.1
"U.S. Government Obligations" 4.4
Section 1.3. Compliance Certificates and Opinions.
_____________________________________
Upon any application or request by the Company or the
Partnership to the Trustee to take any action under any provision
of this Indenture, the Company, the Partnership and any other
obligor on the Mortgage Notes shall furnish to the Trustee an
Officers' Certificate stating that all conditions precedent, if
any, provided for in this Indenture (including any covenant
compliance with which constitutes a condition precedent) relating
to the proposed action have been complied with, and an Opinion of
Counsel to the effect that in the opinion of such counsel all such
conditions precedent, if any, have been complied with, except
that, in the case of any such application or request as to which
the furnishing of any certificates and/or opinions is specifically
required by any provision of this Indenture relating to such
particular application or request, no additional certificate or
opinion need be furnished.
Every Officers' Certificate or Opinion of Counsel with
respect to compliance with a condition or covenant provided for in
this Indenture shall include:
(a) a statement to the effect that each individual or firm
signing such certificate or opinion has read such covenant or
condition and the definitions herein relating thereto;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(c) a statement to the effect that, in the opinion of each
such individual or firm, he or it has made such examination or
investigation as is necessary to enable him or it to express an
(22)
<PAGE>
informed opinion as to whether or not such covenant or condition
has been complied with; and
(d) a statement as to whether, in the opinion of each such
individual or such firm, such condition or covenant has been
complied with.
Section 1.4. Form of Documents Delivered to Trustee.
In any case where several matters are required to be
certified by, or covered by an opinion of, any specified Person,
it is not necessary that all such matters be certified by, or
covered by the opinion of, only one such Person, or that they be
so certified or covered by only one document, but one such Person
may certify or give an opinion with respect to some matters and
one or more other such Persons as to other matters, and any such
Person may certify or give an opinion as to such matters in one or
several documents.
Any certificate or opinion of an officer of the Company, the
Partnership or any other obligor of the Mortgage Notes may be
based, insofar as it relates to legal matters, upon a certificate
or opinion of, or representations by, counsel, unless such officer
knows, or in the exercise of reasonable care should know, that the
certificate or opinion or representations with respect to the
matters upon which his certificate or opinion is based are
erroneous. Any certificate or opinion of such an officer or of
counsel may be based, insofar as it relates to factual matters,
upon a certificate or opinion of, or representations by, an
officer or officers of the Company, the Partnership or other
obligor of the Mortgage Notes with respect to such factual matters
and which contains a statement to the effect that the information
with respect to such factual matters is in the possession of the
Company, the Partnership or other obligor of the Mortgage Notes,
unless such officer or counsel knows, or in the exercise of
reasonable care should know, that the certificate or opinion or
representations with respect to such matters are erroneous.
Opinions of Counsel required to be delivered to the Trustee may
have qualifications customary for opinions of the type required
and counsel delivering such opinions of Counsel may rely on
certificates of the Company, the Partnership or government or
other officials customary for opinions of the type required,
including certificates certifying as to matters of fact, including
assertions as to compliance with various financial covenants.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates,
statements, opinions or other instruments under this Indenture,
they may, but need not, be consolidated and form one instrument.
(23)
<PAGE>
Section 1.5. Acts of Holders.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be
given or taken by Holders may be embodied in and evidenced by one
or more instruments of substantially similar tenor signed by such
Holders in person or by an agent duly appointed in writing; and,
except as herein otherwise expressly provided, such action shall
become effective when such instrument or instruments are delivered
to the Trustee and, where it is herein expressly required, to the
Company. Such instrument or instruments (and the action embodied
therein and evidenced thereby) are herein sometimes referred to as
the "Act" of the Holders signing such instrument or instruments.
Proof of execution of any such instrument or of a writing
appointing any such agent shall be sufficient for any purpose of
this Indenture and conclusive in favor of the Trustee and the
Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved in any reasonable manner
which the Trustee deems sufficient.
(c) The ownership of the Mortgage Notes shall be proved by
the Mortgage Note Register.
(d) Any request, demand, authorization, direction, notice,
consent, waiver or other action by the Holder of any Mortgage Note
shall bind every future Holder of the Mortgage Notes or the Holder
of every Mortgage Note issued upon the transfer thereof or in
exchange therefor or in lieu thereof, in respect of anything done,
suffered or omitted to be done by the Trustee, any Paying Agent or
the Company or the Partnership in reliance thereon, whether or not
notation of such action is made upon such Mortgage Note.
Section 1.6. Notices, etc., to Trustee, the Company, the
Partnership, the CCC and the NJDGE.
Any request, demand, authorization, direction, notice,
consent, waiver or Act of the Holders or other document provided
or permitted by this Indenture to be made upon, given or furnished
to, or filed with:
(a) the Trustee by any Holder or by the Company or the
Partnership shall be sufficient for every purpose hereunder
(unless otherwise herein expressly provided) if made, given,
furnished or filed, in writing, to or with the Trustee at 180 East
Fifth Street, St. Paul, Minnesota 55101, Attention: Corporate
Trust Department, or at any other address previously furnished in
writing to the Holders, the Company or the Partnership by the
Trustee;
(24)
<PAGE>
(b) the Company or the Partnership shall be sufficient for
every purpose (except as provided in Section 5.1(c) hereunder) if
in writing and mailed, first-class postage prepaid or delivered by
recognized overnight courier, to the Company or the Partnership,
as the case may be, addressed to it at Brigantine Boulevard and
Huron Avenue, Atlantic City, New Jersey 08401, Attention: Chief
Financial Officer, or at any other address previously furnished in
writing to the Trustee by the Company or the Partnership, as the
case may be;
(c) the CCC shall be sufficient for every purpose hereunder
(unless otherwise herein expressly provided) if made, given,
furnished or filed, in writing, to or with the CCC at Tennessee
Avenue and The Boardwalk, Arcade Building, Atlantic City, New
Jersey 08401; or
(d) The NJDGE shall be sufficient for every purpose
hereunder (unless otherwise herein expressly provided) if made,
given, furnished or filed, in writing or with the NJDGE at Hughes
Justice Complex, CN-047, Trenton, New Jersey 08625.
Section 1.7. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any
event, such notice shall be sufficiently given (unless otherwise
herein expressly provided) if in writing and mailed, first-class
postage prepaid, to each Holder affected by such event, at his
address as it appears in the Mortgage Note Register, not later
than the latest date, and not earlier than the earliest date,
prescribed for the giving of such notice. In any case where
notice to Holders is given by mail, neither the failure to mail
such notice, nor any defect in any notice so mailed, to any
particular Holder shall affect the sufficiency of such notice with
respect to other Holders. Any notice when mailed to a Holder in
the aforesaid manner shall be conclusively deemed to have been
received by such Holder whether or not actually received by such
Holder. Where this Indenture provides for notice in any manner,
such notice may be waived in writing by the Person entitled to
receive such notice, either before or after the event, and such
waiver shall be the equivalent of such notice. Waivers of notice
by Holders shall be filed with the Trustee, but such filing shall
not be a condition precedent to the validity of any action taken
in reliance upon such waiver.
In case by reason of the suspension of regular mail service
or by reason of any other cause, it shall be impracticable to mail
notice of any event as required by any provision of this
Indenture, then any method of giving such notice as shall be
reasonably satisfactory to the Trustee shall be deemed to be a
sufficient giving of such notice.
(25)
<PAGE>
Section 1.8. Conflict with Trust Indenture Act.
If and to the extent that any provision of this Indenture
limits, qualifies or conflicts with the duties imposed by
Sections 3.10 to 3.18, inclusive, of the Trust Indenture Act, or
conflicts with any provision (an "incorporated provision")
required by or deemed to be included in this Indenture by
operation of such Sections of the Trust Indenture Act, such
imposed duties or incorporated provision shall control. If any
provision of this Indenture modifies or excludes any provision of
the Trust Indenture Act that may be so modified or excluded, the
latter provision shall be deemed to apply to this Indenture as so
modified or excluded, as the case may be.
Section 1.9. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of
Contents are for convenience only and shall not affect the
construction hereof.
Section 1.10. Successors and Assigns.
All covenants and agreements in this Indenture by the Company
and the Partnership shall bind their successors and assigns,
whether so expressed or not.
Section 1.11. Separability Clause.
In case any provision in this Indenture or in the Mortgage
Notes shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not
in any way be affected or impaired thereby.
Section 1.12. Benefits of Indenture.
Nothing in this Indenture or in the Mortgage Notes, express
or implied, shall give to any Person (other than the parties
hereto and their successors hereunder, any Paying Agent and the
Holders) any benefit or any legal or equitable right, remedy or
claim under this Indenture.
SECTION 1.13. GOVERNING LAW.
THIS INDENTURE, THE MORTGAGE NOTES AND THE GUARANTEE SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF NEW YORK (WITHOUT GIVING EFFECT TO THE CONFLICT OF LAWS
PRINCIPLES THEREOF).
Section 1.14. Casino Control Act.
Each of the provisions of this Indenture is subject to and
shall be enforced in compliance with the provisions of the New
(26)
<PAGE>
Jersey Casino Control Act, unless such provisions are in conflict
with the Trust Indenture Act in which case the Trust Indenture Act
shall control.
Section 1.15. Legal Holidays.
In any case where any Interest Payment Date, Redemption
Date or Stated Maturity of any Mortgage Note shall not be a
Business Day, then (notwithstanding any other provision of this
Indenture or of the Mortgage Notes) payment of interest or
principal or, premium, if any, need not be made on such date, but
may be made on the next succeeding Business Day with the same
force and effect as if made on the Interest Payment Date or
Redemption Date, or at the Stated Maturity and no interest shall
accrue with respect to such payment for the period from and after
such Interest Payment Date, Redemption Date or Stated maturity, as
the case may be, to the next succeeding Business Day.
Section 1.16. Schedules.
All schedules attached hereto are by this reference made a
part hereof with the same effect as if herein set forth in full.
Section 1.17. Counterparts.
This Indenture may be executed in any number of counterparts,
each of which shall be original; but such counterparts shall
together constitute but one and the same instrument.
ARTICLE TWO
FORM OF MORTGAGE NOTES
Section 2.1. Forms Generally.
The Mortgage Notes, the Guarantee and the Trustee's
certificate of authentication shall be in substantially the forms
set forth in this Article, with such appropriate insertions,
omissions, substitutions and other variations as are required or
permitted by this Indenture and may have such letters, numbers or
other marks of identification and such legends or endorsements
placed thereon as may be required to comply with the rules of any
securities exchange, any organizational document or governing
instrument or any applicable law, including the federal securities
laws, or as may, consistently herewith, be determined by the
officers executing such Mortgage Notes, as evidenced by their
execution of the Mortgage Notes. Any portion of the text of any
Mortgage Note may be set forth on the reverse thereof, with an
appropriate reference thereto on the face of the Mortgage Note.
(27)
<PAGE>
The definitive Mortgage Notes shall be printed, lithographed
or engraved or produced by any combination of these methods or may
be produced in any other manner permitted by the rules of any
securities exchange on which the Mortgage Notes may be listed, all
as determined by the officers executing such Mortgage Notes, as
evidenced by their execution of such Mortgage Notes.
Section 2.2. Form of Face of the Mortgage Notes.
The form of the face of the Mortgage Notes shall be
substantially as follows:
TRUMP'S CASTLE FUNDING, INC.
11-3/4% MORTGAGE NOTE DUE 2003
No. $
TRUMP'S CASTLE FUNDING, INC., a New Jersey corporation
(herein called the "Company," which term includes any successor
Person under the Indenture hereinafter referred to), for value
received, hereby promises to pay to or
registered assigns, the principal sum of
United States dollars on November 15, 2003 at the office or agency
of the Company referred to below, and to pay interest thereon from
the 15th day of May or November, as the case may be, next
preceding the date hereof (or from the date hereof if such date be
either of said dates) to which interest hereon has been paid or
duly provided for, or from December __, 1993 if the date hereof is
prior to May 15, 1994, at the rate of 11 3/4% per annum,
semiannually on May 15 and November 15 in each year, commencing
May 15, 1994 in United States dollars, until the principal hereof
is paid or duly provided for; provided, however, that if, as of a
date prior to November 15, 1998, the Company shall have defeased
or redeemed all the then Outstanding PIK Notes through the
application of the proceeds of one or more Equity Offerings or of
internally generated funds and not through the incurrence of
additional indebtedness, then on and after the first day of the
calendar month next commencing after such date the aforesaid
interest rate of 11 3/4% per annum shall be reduced to 11.5% per
annum.
The interest so payable, and punctually paid or duly provided
for, on any Interest Payment Date will, as provided in such
Indenture, be paid to the Person in whose name this Mortgage Note
(or one or more Predecessor Mortgage Notes) is registered at the
close of business on the Regular Record Date for such interest,
which shall be May 1 or November 1 (whether or not a Business
Day), as the case may be, next preceding such Interest Payment
(28)
<PAGE>
Date. Any such interest not so paid, or duly provided for, and
interest on such defaulted interest at the interest rate borne by
the Mortgage Notes, to the extent lawful, shall forthwith cease to
be payable to the Holder on such Regular Record Date, and may be
paid to the Person in whose name this Mortgage Note (or one or
more Predecessor Mortgage Notes) is registered at the close of
business on a Special Record Date for the payment of such
defaulted interest to be fixed by the Trustee, notice whereof
shall be given to Holders of Mortgage Notes not less than ten days
prior to such Special Record Date, or may be paid at any time in
any other lawful manner not inconsistent with the requirements of
any securities exchange on which the Mortgage Notes may be listed,
and upon such notice as may be required by such exchange, all as
more fully provided in said Indenture.
Payment of the principal of, premium, if any, and interest on
this Mortgage Note will be made at the office or agency of the
Company maintained for that purpose in The City of New York, or at
such other office or agency of the Company as may be maintained
for such purpose, in such coin or currency of the United States of
America as at the time of payment is legal tender for payment of
public and private debts; provided, however, that payment of
interest may be made at the option of the Company by check mailed
to the address of the Person entitled thereto as such address
shall appear on the Mortgage Note Register. Interest shall be
computed on the basis of a 360-day year of twelve 30-day months.
This Mortgage Note is entitled to the benefits of the
Guarantee by Trump's Castle Associates of the punctual payment
when due of the Indenture Obligations made in favor of the Trustee
for the benefit of the Holders. Reference is hereby made to
Article Fourteen of the Indenture for a statement of the
respective rights, limitations of rights, duties and obligations
under the Guarantee of the Partnership, the Trustee and the
Holders.
The Mortgage Notes are secured by an assignment to First Bank
National Association, Trustee, by the Company of both a promissory
note of Trump's Castle Associates (the "Partnership"), dated as of
even date with the Indenture referred to herein, and an Indenture
of Mortgage and Security Agreement from the Partnership, as
mortgagor, to the Company, as mortgagee, to which reference is
hereby made for a full statement of its term and conditions.
Reference is hereby made to the further provisions of this
Mortgage Note set forth on the reverse hereof, which further
provisions shall for all purposes have the same effect as if set
forth at this place.
Unless the certificate of authentication hereon has been duly
executed by the Trustee or by the authenticating agent appointed
as provided in the Indenture by manual signature, this Mortgage
(29)
<PAGE>
Note shall not be entitled to any benefit under the Indenture, or
be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this
instrument to be duly executed by the manual or facsimile
signature of its authorized officers and its corporate seal to be
affixed or reproduced hereon.
Dated: TRUMP'S CASTLE FUNDING, INC.
By
________________________
Name:
Attest: Title:
(SEAL]
___________________________
Section 2.3. Form of Reverse of the Mortgage Notes.
_____________________________________
The form of the reverse of the Mortgage Notes shall be
substantially as follows:
This Mortgage Note is one of a duly authorized issue of
Mortgage Notes of the Company designated as its 11-3/4% Mortgage
Notes due 2003 (herein called the "Mortgage Notes"), limited
(except as otherwise provided in the Indenture referred to below)
in aggregate principal amount to $251,932,874, which may be issued
under an indenture (herein called the "Indenture") dated as of
December __, 1993, among the Company, as issuer, First Bank
National Association, a national banking association, as trustee
(herein called the "Trustee," which term includes any successor
trustee under the Indenture), and Trump's Castle Associates, a New
Jersey general partnership (the "Partnership"), as guarantor, to
which Indenture and all indentures supplemental thereto reference
is hereby made for a statement of the respective rights,
limitations of rights, duties, obligations and immunities
thereunder of the Company, the Trustee, the Partnership, other
obligors thereunder and the Holders of the Mortgage Notes, and of
the terms upon which the Mortgage Notes are, and are to be,
authenticated and delivered.
If the Company or the Partnership is served with notice of
the disqualification of any Holder under N.J.S.A. ss 5:12-105(d) by
the CCC, such Holder will be prohibited under N.J.S.A. ss
5:12-105(e) from (a) receiving interest on the Mortgage Notes held
by such Holder, (b) exercising directly or through any trustee or
nominee, any right conferred on such Mortgage Notes and (c)
receiving any remuneration in any form from any company licensed
by the CCC (including the Company, the Partnership and the
Trustee) for services rendered or otherwise.
(30)
<PAGE>
The Indenture contains provisions for defeasance at any time
of (a) the entire indebtedness on this Mortgage Note and (b)
certain restrictive covenants and related Defaults and Events of
Default, in each case upon compliance with certain conditions set
forth therein.
The Mortgage Notes are subject to redemption, in whole or in
part, at any time on or after December 31, 1998, upon not less
than 30 nor more than 60 days' prior notice by first-class mail,
at the election of the Company or the Partnership, in amounts of
$1,000 or an integral multiple of $10 at a Redemption Price equal
to the percentage of principal amount set forth below if redeemed
during the 12-month period beginning December 31 of the years
indicated below:
Redemption Price
________________
Before Interest On and after
Rate Reduction Interest Rate
Year Reduction
____ _________________________________
1998 105.8750% 105.7500
1999 103.9170% 103.8333
2000 101.9580% 101.9167
and thereafter at 100% of principal amount, in each case, together
with accrued and unpaid interest, if any, through the Redemption
Date, all as provided in the Indenture. If less than all of the
Mortgage Notes are to be redeemed, the Trustee shall select the
Mortgage Notes or portions thereof to be redeemed pro rata, by lot
or by any other method the Trustee shall deem fair and reasonable.
The Mortgage Notes are not entitled to the benefit of any
sinking fund.
In the event of a Total Taking or Casualty, the Company or
the Partnership shall, subject to the rights of holders of Senior
Indebtedness, within 60 days after receipt of any condemnation or
insurance proceeds but within one year after the occurrence of
such Total Taking or Casualty, redeem the Mortgage Notes at 100%
of the principal amount thereof, in each case, together with
accrued and unpaid interest through the Redemption Date, all as
provided in the Indenture.
Notwithstanding the foregoing, each Holder by accepting a
Mortgage Note agrees that if the CCC does not waive the
qualification requirement as to the Holder (whether the record
owner or beneficial owner) of this Mortgage Note and requires that
the Holder be qualified under the New Jersey Casino Control Act,
then, in such event, the Holder must qualify under such Act. If
the Holder does not so qualify, the Holder must dispose of its
(31)
<PAGE>
interest in this Mortgage Note, within 30 days (or within such
earlier date as the CCC may require) after the Company's receipt
of notice of such finding, or the Company or the Partnership may
redeem this Mortgage Note at the lower of the Outstanding Amount
and the Fair Market Value of this Mortgage Note, without premium,
all as provided in the Indenture. In the case of any redemption
of Mortgage Notes, interest installments whose Stated Maturity is
on or prior to the Redemption Date will be payable to the Holders
of such Mortgage Notes (or one or more Predecessor Mortgage
Notes), of record at the close of business on the relevant Record
Date referred to on the face hereof. Mortgage Notes (or portions
thereof) for whose redemption and payment provision is made in
accordance with the Indenture shall cease to bear interest from
and after the date fixed for redemption.
In the event of redemption of this Mortgage Note in part
only, a new Mortgage Note or Mortgage Notes for the unredeemed
portion hereof shall be issued in the name of the Holder hereof
upon the cancellation hereof.
If an Event of Default shall occur and be continuing, there
may be declared due and payable in the manner and with the effect
provided in the Indenture the principal of this Mortgage Note,
plus all accrued and unpaid interest to and including the date
this Mortgage Note is paid.
In order to secure the due and punctual payment of the
principal of, premium, if any, and interest on the Mortgage Notes
and all other amounts payable by the Company under the Indenture
and the Mortgage Notes when and as the same shall be due and
payable, whether at maturity or otherwise, according to the terms
of the Mortgage Notes and the Indenture, the Company and the
Partnership have granted to the Holders of the Mortgage Notes a
security interest in the Collateral pursuant to the Mortgage
Documents. The lien of the Mortgage Documents is junior to the
lien of certain mortgages on all or a portion of the Collateral.
If a Change of Control occurs at any time, each Holder shall
have the right to require that the Company or the Partnership
repurchase such Holder's Mortgage Notes in whole or in part in
integral multiples of $10 at a purchase price in cash in an amount
equal to 101% of the principal amount thereof plus accrued and
unpaid interest (including any Defaulted Interest), if any, to the
date of purchase.
The Indenture permits, with certain exceptions as therein
provided, amendments and modifications of the rights and
obligations of the Company and the Partnership and the rights of
the Holders under the Indenture and the Mortgage Documents at any
time by the Company, the Partnership and the Trustee with the
consent of the Holders of not less than a majority in aggregate
principal amount of the Mortgage Notes at the time Outstanding.
(32)
<PAGE>
The Indenture also contains provisions permitting the Holders of
specified percentages in aggregate principal amount of the
Mortgage Notes at the time Outstanding, on behalf of the Holders
of all the Mortgage Notes, to waive compliance by the Company or
the Partnership with certain provisions of the Indenture and
certain past Defaults under the Indenture and their consequences.
Any such consent or waiver by or on behalf of the Holder of this
Mortgage Note shall be conclusive and binding upon such Holder and
upon all future Holders of this Mortgage Note and of any Mortgage
Note issued upon the registration of transfer hereof or in
exchange hereof or in lieu hereof whether or not notation of such
consent or waiver is made upon this Mortgage Note.
No reference herein to the Indenture and no provision of this
Mortgage Note or of the Indenture shall alter or impair the
obligation of the Company, the Partnership or any other obligor
under the Mortgage Notes (in the event the Partnership or any such
obligor is obligated to make payments in respect of the Mortgage
Notes), which is absolute and unconditional, to pay the principal
of, premium, if any, and interest on this Mortgage Note at the
times, place, and rate, and in the coin or currency, herein
prescribed.
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this Mortgage Note
is registrable on the Mortgage Note Register of the Company, upon
surrender of this Mortgage Note for registration of transfer at
the office or agency of the Company maintained for such purpose in
The City of New York or at such other office or agency of the
Company as may be maintained for such purpose, duly endorsed by,
or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Mortgage Note Registrar duly
executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Mortgage Notes, of
authorized denominations and for the same aggregate principal
amount, will be issued to the designated transferee or
transferees.
The Mortgage Notes are issuable only in registered form
without coupons in denominations of $10 and any integral multiple
thereof. As provided in the Indenture and subject to certain
limitations therein set forth, such Mortgage Notes are
exchangeable for a like aggregate principal amount of Mortgage
Notes of a different authorized denomination, as requested by the
Holder surrendering the same.
No service charge shall be made for any registration of
transfer or exchange or redemption of Mortgage Notes, but the
Company may require payment of a sum sufficient to cover any tax
or other governmental charge payable in connection therewith.
(33)
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Prior to and at the time of due presentment of this Mortgage
Note for registration of transfer, the Company, the Trustee and
any agent of the Company or the Trustee may treat the Person in
whose name this Mortgage Note is registered as the owner hereof
for all purposes, whether or not this Mortgage Note is overdue,
and neither the Company, the Trustee nor any agent shall be
affected by notice to the contrary.
Notwithstanding anything herein (including the Guarantee) or
in any other agreement, document, certificate, instrument,
statement or omission referred to below to the contrary, the
Partnership and the Company are liable hereunder only to the
extent of the assets of the Partnership and the Company and the
interest of the Company in the Mortgage Documents and no other
person or entity, including, but not limited to, any partner,
officer, committee or committee member of the Partnership or any
partner therein or of any Affiliate of the Partnership, or any
incorporator, officer, director or shareholder of the Company, or
any Affiliate or controlling Person or entity of any of the
foregoing, or any agent, employee or lender of any of the
foregoing, or any successor, personal representative, heir or
assign of any of the foregoing, in each case past, present, or as
they may exist in the future, shall be liable in any respect
(including without limitation the breach of any representation,
warranty, covenant, agreement, condition or indemnification or
contribution undertaking contained herein or therein) under, in
connection with, arising out of, or relating to this Mortgage
Note, the Indenture, the Mortgage Documents or any other
agreement, document, certificate, instrument or statement (oral or
written) related to, executed or to be executed, delivered or to
be delivered, or made or to be made, or any omission made or to be
made, in connection with any of the foregoing or any of the
transactions contemplated in any such agreement, document,
certificate, instrument or statement.
Upon any consolidation or merger, or any sale, assignment,
conveyance, transfer or disposition of all or substantially all of
the properties and assets of the Company or the Partnership in
accordance with the Indenture, subject to the terms and conditions
of the Indenture, the successor Person to such transaction shall
become the obligor or guarantor on this Mortgage Note and the
Mortgage Documents and the Company or the Partnership, as the case
may be, shall be discharged from all obligations and covenants
under this Mortgage Note, the Mortgage Documents and the
Indenture.
All terms used in this Mortgage Note which are defined in the
Indenture and not otherwise defined herein shall have the meanings
assigned to them in the Indenture.
(34)
<PAGE>
Section 2.4. Form of Trustee's Certificate of
Authentication.
The form of certificate of authentication shall be
substantially as follows:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
This is one of the Mortgage Notes referred to in the
within-mentioned Indenture.
FIRST BANK NATIONAL ASSOCIATION,
As Trustee
By
Authorized Signatory
Section 2.5. Form of the Guarantee.
The form of the Guarantee shall be set forth on the
Mortgage Notes substantially as follows:
GUARANTEE BY
TRUMP'S CASTLE ASSOCIATES
For value received, Trump's Castle Associates, a New Jersey
general partnership, hereby unconditionally guarantees to the
Holder of this Mortgage Note the payment of principal of, premium,
if any, and interest on this Mortgage Note in the amounts and at
the time when due and interest on the overdue principal and
interest, if any, of this Mortgage Note, if lawful, and the
payment or performance of all other obligations of the Company
under the Indenture or the Mortgage Notes, to the Holder of this
Mortgage Note and the Trustee, all in accordance with and subject
to the terms and limitations of this Mortgage Note and Article
Fourteen of the Indenture. This Guarantee is secured by a certain
Indenture of Mortgage and Security Agreement, of even date with
the Indenture referred to in this Mortgage Note, between Trump's
Castle Associates, as mortgagor, and First Bank National
Association, Trustee, as mortgagee, to which reference is hereby
made for a full statement of its terms and conditions. This
Guarantee is without recourse to the partners of the Partnership
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and will not become effective until the Trustee duly executes the
certificate of authentication on this Mortgage Note.
TRUMP'S CASTLE ASSOCIATES
Attest: By
______________________ ____________________________
Authorized Signature General Partner
(SEAL)
ARTICLE THREE
THE MORTGAGE NOTES
Section 3.1. Title and Terms.
The aggregate principal amount of Mortgage Notes which may be
authenticated and delivered under this Indenture is limited to
$251,932,874, except for Mortgage Notes authenticated and
delivered upon registration of transfer of, or in exchange for, or
in lieu of, other Mortgage Notes pursuant to Section 3.3, 3.4,
3.5, 3.6, 9.6, 10.13 or 11.8.
The Mortgage Notes shall be known and designated as the
"11-3/4% Mortgage Notes due 2003" of the Company. The Stated
Maturity of the Mortgage Notes shall be November 15, 2003, and the
Mortgage Notes, shall bear interest from the 15th day of May or
November, as the case may be, next preceding the date thereof (or
from the date thereof if such date be either of said dates) to
which interest hereon has been paid or duly provided for, or from
December 28, 1993 if the date thereof is prior to May 15, 1994, at
the rate of 11 3/4% per annum, semiannually on May 15 and
November 15 in each year, commencing May 15, 1994, until the
principal thereof is paid or duly provided for. Notwithstanding
the foregoing, if prior to November 15, 1998 the Company delivers
to the Trustee (i) an Officers' Certificate stating that the
Company or the Partnership has defeased or redeemed all the then
Outstanding PIK Notes with the proceeds of one or more Equity
Offerings together with internally generated funds and not through
the incurrence of any additional indebtedness, and (ii) a
certificate from the trustee under the PIK Note Indenture
confirming that all the then Outstanding PIK Notes have been
defeased or redeemed, then on and after the first day of the
calendar month next commencing after the date on which such
delivery is made the aforesaid interest rate on the Mortgage Notes
of 11 3/4% per annum shall be reduced to 11.5% per annum until the
Mortgage Notes have been paid in full. Interest on any overdue
(36)
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principal, interest (to the extent lawful) or premium, if any,
shall be payable on demand.
The principal of, premium, if any, and interest on Mortgage
Notes shall be payable at the office or agency of the Company
maintained for such purpose in The City of New York, or at such
other office or agency of the Company as may be maintained for
such purpose; provided, however, that at the option of the Company
interest may be paid by check mailed to addresses of the Persons
entitled thereto as such addresses shall appear on the Mortgage
Note Register.
The Mortgage Notes shall be redeemable as provided in Article
Eleven.
At the election of the Company and the Partnership, the
entire indebtedness on the Mortgage Notes or certain of the
Company's or the Partnership's obligations and covenants and
certain Events of Default thereunder may be defeased as provided
in Article Four.
The Mortgage Notes shall be secured as provided in Article
Twelve.
If the Company or the Partnership is served with notice of
the disqualification of any Holder under N.J.S.A. ss5:12-105(d) by
the CCC, such Holder will be prohibited under N.J.S.A. ss
5:12-105(e) from (a) receiving interest on the Mortgage Notes held
by such Holder, (b) exercising directly or through any trustee or
nominee, any right conferred on such Mortgage Notes and (c)
receiving any remuneration in any form from any company licensed
by the CCC (including the Company, the Partnership and the
Trustee) for services rendered or otherwise.
Section 3.2. Denominations.
The Mortgage Notes shall be issuable only in registered form
without coupons and only in denominations of $10 and any integral
multiple thereof.
Section 3.3. Execution, Authentication, Delivery and Dating.
The Mortgage Notes shall be executed on behalf of the Company
by its Chairman of the Board of Directors, Vice Chairman, its
President or one of its Vice Presidents, under its corporate seal
reproduced thereon attested by its Secretary or one of its
Assistant Secretaries. The signature of any of these officers on
the Mortgage Notes may be manual or facsimile.
Mortgage Notes bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the
Company shall bind the Company, notwithstanding that such
(37)
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individuals or any of them have ceased to hold such offices prior
to the authentication and delivery of such Mortgage Notes or did
not hold such offices on the date of such Mortgage Notes.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Mortgage Notes
executed by the Company to the Trustee for authentication,
together with a Company Order for the authentication and delivery
of such Mortgage Notes; and the Trustee in accordance with such
Company Order shall authenticate and deliver such Mortgage Notes
as provided in this Indenture and not otherwise.
Each Mortgage Note shall be dated the date of its
authentication.
No Mortgage Note shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there
appears on such Mortgage Note a certificate of authentication
substantially in the form provided for herein duly executed by the
Trustee by manual signature of an authorized officer, and such
certificate upon any Mortgage Note shall be conclusive evidence,
and the only evidence, that such Mortgage Note has been duly
authenticated and delivered hereunder.
In case the Company or the Partnership, pursuant to Article
Eight, shall be consolidated, merged with or into any other Person
or shall sell, convey, assign, transfer or lease substantially all
of its properties and assets to any Person, and the successor
Person resulting from such consolidation, or surviving such
merger, or into which the Company or the Partnership shall have
been consolidated or merged, or the Person which shall have
received a conveyance, transfer or lease as aforesaid, shall have
executed an indenture supplemental hereto with the Trustee
pursuant to Article Eight, any of the Mortgage Notes authenticated
or delivered prior to such consolidation, merger, conveyance,
transfer or lease may, from time to time, at the request of the
successor Person, be exchanged for other Mortgage Notes executed
in the name of the successor Person with such changes in
phraseology and form as may be appropriate, but otherwise in
substance of like tenor as the Mortgage Notes surrendered for such
exchange and of like principal amount; and the Trustee, upon the
request of the successor Person, shall authenticate and deliver
Mortgage Notes as specified in such Request for the purpose of
such exchange. If Mortgage Notes shall at any time be
authenticated and delivered in any new name of a successor Person
pursuant to this Section in exchange or substitution for or upon
registration of transfer of any Mortgage Notes, such successor
Person, at the option of the Holders but without expense to them,
shall provide for the exchange of all Mortgage Notes at the time
Outstanding for Mortgage Notes authenticated and delivered in such
new name.
(38)
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The Trustee may appoint an authenticating agent
acceptable to the Company to authenticate Mortgage Notes on behalf
of the Trustee. Unless limited by the terms of such appointment,
an authenticating agent may authenticate Mortgage Notes whenever
the Trustee may do so except upon original issuance. Each
reference in this Indenture to authentication by the Trustee
includes authentication by such agent. An authenticating agent
has the same rights as any Mortgage Note Registrar or Paying Agent
to deal with the Company and its Affiliates.
Section 3.4. Temporary Securities.
Pending the preparation of definitive Mortgage Notes, the
Company may execute, and upon order of the Company the Trustee
shall authenticate and deliver, temporary Mortgage Notes which are
printed, lithographed, typewritten, mimeographed or otherwise
produced, in any authorized denomination, substantially of the
tenor of the definitive Mortgage Notes in lieu of which they are
issued and with such appropriate insertions, omissions,
substitutions and other variations as the officers executing such
Mortgage Notes may determine, as conclusively evidenced by their
execution of such temporary Mortgage Notes.
If temporary Mortgage Notes are issued, the Company will
cause definitive Mortgage Notes to be prepared without
unreasonable delay. After the preparation of definitive Mortgage
Notes, the temporary Mortgage Notes shall be exchangeable for
definitive Mortgage Notes upon surrender of the temporary Mortgage
Notes at the office or agency of the Company designated for such
purpose pursuant to Section 10.2, without charge to the Holder.
Upon surrender for cancellation of any one or more temporary
Mortgage Notes the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a like principal
amount of definitive Mortgage Notes of authorized denominations.
Until so exchanged the temporary Mortgage Notes shall in all
respects be entitled to the same benefits under this Indenture as
definitive Mortgage Notes.
Section 3.5. Registration, Registration of Transfer and
Exchange.
The Company shall cause to be kept at the Corporate Trust
Office of the Trustee, or such other office as the Trustee may
designate, a register (the register maintained in such office and
in any other office or agency designated pursuant to Section 10.2
being herein sometimes referred to as the "Mortgage Note
Register") in which, subject to such reasonable regulations as the
Mortgage Note Registrar may prescribe, the Company shall provide
for the registration of Mortgage Notes and of transfers of
Mortgage Notes. The Trustee is hereby initially appointed
"Mortgage Note Registrar" for the purpose of registering Mortgage
Notes and transfers of Mortgage Notes as herein provided.
(39)
<PAGE>
Upon surrender for registration of transfer of any Mortgage
Note in certificated form at the office or agency of the Company
designated pursuant to Section 10.2, the Company shall execute,
and the Trustee shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Mortgage
Notes of any authorized denomination or denominations, of a like
aggregate principal amount.
At the option of the Holder, Mortgage Notes may be exchanged
for other Mortgage Notes of any authorized denomination or
denominations, of a like aggregate principal amount, upon
surrender of the Mortgage Notes to be exchanged at such office or
agency. Whenever any such Mortgage Notes are so surrendered for
exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the Mortgage Notes which the Holder
making the exchange is entitled to receive.
All Mortgage Notes issued upon any registration of transfer
or exchange of Mortgage Notes shall be the valid obligations of
the Company, evidencing the same Indebtedness, and entitled to the
same benefits under this Indenture, as the Mortgage Notes
surrendered upon such registration of transfer or exchange.
Every Mortgage Note presented or surrendered for registration
of transfer, or for exchange or redemption shall (if so required
by the Company or the Trustee) be duly endorsed, or be accompanied
by a written instrument of transfer in form satisfactory to the
Company and the Mortgage Note Registrar, duly executed by the
Holder thereof or his attorney duly authorized in writing.
No service charge shall be made to a Holder for any
registration of transfer or exchange or redemption of Mortgage
Notes, but the Company may require payment of a sum sufficient to
pay all documentary, stamp or similar issue or transfer taxes or
other governmental charges that may be imposed in connection with
any registration of transfer or exchange of Mortgage Notes, other
than exchanges pursuant to Section 3.3, 3.4, 9.6, 10.13, or 11.8
not involving any transfer.
The Company shall not be required (a) to issue, register the
transfer of or exchange any Mortgage Note during a period
beginning at the opening of business 15 days before the mailing of
a notice of redemption of the Mortgage Notes selected for
redemption under Section 11.4 and ending at the close of business
on the day of such mailing, or (b) to register the transfer of or
exchange any Mortgage Note so selected for redemption in whole or
in part, except the unredeemed portion of Mortgage Notes being
redeemed in part.
(40)
<PAGE>
Section 3.6. Mutilated, Destroyed, Lost and Stolen Mortgage
Notes.
If (a) any mutilated Mortgage Note is surrendered to the
Trustee, or (b) the Company and the Trustee receive evidence to
their satisfaction of the destruction, loss or theft of any
Mortgage Note, and there is delivered to the Company and the
Trustee, such security or indemnity, in each case, as may be
required by them to save each of them harmless, then, in the
absence of notice to the Company or the Trustee that such Mortgage
Note has been acquired by a bona fide purchaser, the Company shall
execute and upon its written request the Trustee shall
authenticate and deliver, in exchange for any such mutilated
Mortgage Note or in lieu of any such destroyed, lost or stolen
Mortgage Note, a replacement Mortgage Note of like tenor and
principal amount, bearing a number not contemporaneously
Outstanding.
In case any such mutilated, destroyed, lost or stolen
Mortgage Note has become or is about to become due and payable,
the Company in its discretion may, instead of issuing a
replacement Mortgage Note, pay such Mortgage Note.
Upon the issuance of any replacement Mortgage Notes under
this Section, the Company may require the payment of a sum
sufficient to pay all documentary, stamp or similar issue or
transfer taxes or other governmental charges that may be imposed
in relation thereto and any other expenses (including the fees and
expenses of the Trustee) connected therewith.
Every replacement Mortgage Note issued pursuant to this
Section in lieu of any destroyed, lost or stolen Mortgage Note
shall constitute an original additional contractual obligation of
the Company, the Partnership and any other obligor under the
Mortgage Notes, whether or not the destroyed, lost or stolen
Mortgage Note shall be at any time enforceable by anyone, and
shall be entitled to all benefits of this Indenture equally and
proportionately with any and all other Mortgage Notes duly issued
hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with
respect to the replacement or payment of mutilated, destroyed,
lost or stolen Mortgage Notes.
Section 3.7. Payment of Interest.
Interest on any Mortgage Note which is payable, and is
punctually paid or duly provided for, on any Interest Payment Date
shall be paid to the Person in whose name that Mortgage Note (or
one or more Predecessor Mortgage Notes) is registered at the close
of business on the Regular Record Date for such interest.
(41)
<PAGE>
Any interest on any Mortgage Note which is payable, but is
not punctually paid or duly provided for, on any Interest Payment
Date and interest on such defaulted interest at the then
applicable interest rate borne by the Mortgage Notes, to the
extent lawful (such defaulted interest and interest thereon herein
collectively called "Defaulted Interest") shall forthwith cease to
be payable to the Holder on the Regular Record Date; and such
Defaulted Interest may be paid by the Company, at its election in
each case, as provided in Subsection (a) or (b) below:
(a) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Mortgage Notes (or
their respective Predecessor Mortgage Notes) are registered at the
close of business on a Special Record Date for the payment of such
Defaulted Interest, which shall be fixed in the following manner.
The Company shall notify the Trustee in writing of the amount of
Defaulted Interest proposed to be paid on each Mortgage Note and
the date of the proposed payment, and at the same time the Company
shall deposit with the Trustee an amount of money equal to the
aggregate amount proposed to be paid in respect of such Defaulted
Interest or shall make arrangements satisfactory to the Trustee
for such deposit prior to the date of the proposed payment, such
money when deposited to be held in trust for the benefit of the
Persons entitled to such Defaulted Interest as in this Subsection
provided. Thereupon the Trustee shall fix a Special Record Date
for the payment of such Defaulted Interest which shall be not more
than 15 days and not less than 10 days prior to the date of the
proposed payment and not less than 10 days after the receipt by
the Trustee of the notice of the proposed payment. The Trustee
shall promptly notify the Company in writing of such Special
Record Date. In the name and at the expense of the Company, the
Trustee shall cause notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor to be
mailed, first-class postage prepaid, to each Holder at his address
as it appears in the Mortgage Note Register, not less than 10 days
prior to such Special Record Date. Notice of the proposed payment
of such Defaulted Interest and the Special Record Date therefor
having been so mailed, such Defaulted Interest shall be paid to
the Persons in whose names the Mortgage Notes (or their respective
Predecessor Mortgage Notes) are registered on such Special Record
Date and shall no longer be payable pursuant to the following
Subsection (b).
(b) The Company may make payment to the Persons in whose
name the Mortgage Notes are registered at the close of business on
the Special Record Date of any Defaulted Interest in any other
lawful manner not inconsistent with the requirements of any
securities exchange on which the Mortgage Notes may be listed, and
upon such notice as may be required by such exchange, unless,
after written notice given by the Company to the Trustee of the
proposed payment pursuant to this Subsection, such manner of
(42)
<PAGE>
payment shall not be deemed practicable by the Trustee (acting
reasonably). The Trustee shall give prompt written notice to the
Company of any such determination.
Subject to the foregoing provisions of this Section, each
Mortgage Note delivered under this Indenture upon registration of
transfer of or in exchange for or in lieu of any other Mortgage
Note shall carry the rights to interest accrued and unpaid, and to
accrue, which were carried by such other Mortgage Note.
Section 3.8. Persons Deemed Owners.
Prior to and at the time of due presentment for registration
of transfer, the Company, the Trustee and any agent of the Company
or the Trustee may treat the Person in whose name any Mortgage
Note is registered as the owner of such Mortgage Note for the
purpose of receiving payment of principal of, premium, if any, and
(subject to Section 3.7) interest on such Mortgage Note and for
all other purposes whatsoever, whether or not such Mortgage Note
is overdue, and neither the Company, the Trustee nor any agent of
the Company or the Trustee shall be affected by notice to the
contrary.
Section 3.9. Cancellation.
All Mortgage Notes surrendered for payment, purchase,
redemption or registration of transfer or exchange shall be
delivered to the Trustee and, if not already cancelled, shall be
promptly cancelled by it. The Company and the Partnership may at
any time deliver to the Trustee for cancellation any Mortgage
Notes previously authenticated and delivered hereunder which the
Company or the Partnership may have acquired in any manner
whatsoever, and all Mortgage Notes so delivered shall be promptly
cancelled by the Trustee. No Mortgage Notes shall be
authenticated in lieu of or in exchange for any Mortgage Notes
cancelled as provided in this Section, except as expressly
permitted by this Indenture. All cancelled Mortgage Notes held by
the Trustee shall be destroyed and certification of their
destruction delivered to the Company unless by a Company Order the
Company shall direct that the cancelled Mortgage Notes be returned
to it. The Trustee shall provide the Company a list of all
Mortgage Notes that have been cancelled from time to time as
requested by the Company.
Section 3.10. Computation of Interest.
Interest on the Mortgage Notes shall be computed on the basis
of a 360-day year of twelve 30-day months.
(43)
<PAGE>
Section 3.11. Non-recourse.
Notwithstanding anything herein (including the Guarantee) or
in any other agreement, document, certificate, instrument,
statement or omission referred to below to the contrary, the
Partnership and the Company are liable hereunder and under the
Mortgage Notes only to the extent of the assets of the Partnership
and the Company and the interest of the Company in the Mortgage
Documents and no other person or entity, including, but not
limited to, any partner, officer, committee or committee member of
the Partnership or any partner therein or of any Affiliate of the
Partnership, or any incorporator, officer, director or shareholder
of the Company, or any Affiliate or controlling Person or entity
of any of the foregoing, or any agent, employee or lender of any
of the foregoing, or any successor, personal representative, heir
or assign of any of the foregoing, in each case past, present, or
as they may exist in the future, shall be liable in any respect
(including without limitation the breach of any representation,
warranty, covenant, agreement, condition or indemnification or
contribution undertaking contained herein or therein) under, in
connection with, arising out of, or relating to this Indenture or
any other agreement, document, certificate, instrument or
statement (oral or written) related to, executed or to be
executed, delivered or to be delivered, or made or to be made, or
any omission made or to be made, in connection with any of the
foregoing or any of the transactions contemplated in any such
agreement, document, certificate, instrument or statement.
Notwithstanding the foregoing, the Holders preserve any personal
claims they may have for fraud, liabilities under the Securities
Act, and other liabilities that cannot be waived under applicable
federal and state laws in connection with the purchase of the
Mortgage Notes; provided, however, that such conduct shall not
constitute an Event of Default under this Indenture, the Mortgage
Notes or the Mortgage Documents or any document executed in
conjunction therewith or otherwise related thereto. Any
agreement, document, certificate, statement or other instrument to
be executed simultaneously with, in connection with, arising out
of or relating to this Indenture, the Mortgage Notes or any other
agreement, document, certificate, statement or instrument referred
to above, or any agreement, document, certificate, statement or
instrument contemplated hereby shall contain language mutatis
mutandis to this paragraph and, if such language is omitted, shall
be deemed to contain such language.
(44)
<PAGE>
ARTICLE FOUR
DEFEASANCE AND COVENANT DEFEASANCE
Section 4.1. Option to Effect Defeasance or Covenant
Defeasance.
The Company or the Partnership may, at their option, by Board
Resolution, at any time, with respect to the Mortgage Notes, elect
to have either Section 4.2 or Section 4.3 be applied to all of the
Outstanding Mortgage Notes (the "Defeased Mortgage Notes"), upon
compliance with the conditions set forth below in this Article
Four.
Section 4.2. Defeasance and Discharge.
Upon the Company's or the Partnership's exercise under
Section 4.1 of the option applicable to this Section 4.2, each of
the Company, the Partnership and any other obligor under the
Mortgage Notes shall be deemed to have been discharged from its
obligations with respect to the Defeased Mortgage Notes on the
date the conditions set forth below are satisfied (hereinafter,
"defeasance"). For this purpose, such defeasance means that the
Company and the Partnership shall be deemed to have paid and
discharged the entire indebtedness represented by the Defeased
Mortgage Notes, which shall thereafter be deemed to be
"Outstanding" only for the purposes of Section 4.5 and the other
Sections of this Indenture referred to in (a) and (b) below, and
to have satisfied all their other obligations under such Mortgage
Notes and this Indenture insofar as such Mortgage Notes are
concerned (and the Trustee, at the expense of the Company, and,
upon written request of the Company, shall execute proper
instruments acknowledging the same), except for the following
which shall survive until otherwise terminated or discharged
hereunder: (a) the rights of Holders of Defeased Mortgage Notes to
receive solely from the trust fund described in Section 4.4 and as
more fully set forth in such Section, payments in respect of the
principal of, premium, if any, and interest on such Mortgage Notes
when such payments are due, (b) the Company's obligations with
respect to such Defeased Mortgage Notes under Sections 3.4, 3.5,
3.6, 10.2 and 10.3, (c) the rights, powers, trusts, duties,
indemnities and immunities of the Trustee hereunder and (d) this
Article Four. Subject to compliance with this Article Four, the
Company and the Partnership may exercise their option under this
Section 4.2 notwithstanding the prior exercise of their option
under Section 4.3 with respect to the Mortgage Notes.
Section 4.3. Covenant Defeasance.
Upon the Company's or the Partnership's exercise under
Section 4.1 of the option applicable to this Section 4.3, each of
the Company, the Partnership and any other obligor under the
(45)
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Mortgage Notes shall be released from its obligations, if any,
under any covenant or provision contained in Sections 8.1(a)(ii),
(iii)(B), and (v)(B), 8.1(b)(ii), (iv), (v) and (vii)(B), 10.5
through 10.17, 10.19 and 10.21, and Article Twelve shall not apply
with respect to the Defeased Mortgage Notes on and after the date
the conditions set forth below are satisfied (hereinafter,
"covenant defeasance"), and the Defeased Mortgage Notes shall
thereafter be deemed to be not "Outstanding" for the purposes of
any direction, waiver, consent or declaration or Act of Holders
(and the consequences of any thereof) in connection with such
covenants, but shall continue to be deemed "Outstanding" for all
other purposes hereunder. For this purpose, such covenant
defeasance means that, with respect to the Defeased Mortgage
Notes, the Company, the Partnership and any such obligor may omit
to comply with and shall have no liability in respect of any term,
condition or limitation set forth in any such Section or Article,
whether directly or indirectly, by reason of any reference
elsewhere herein, in such Defeased Mortgage Notes or in any
Mortgage Documents or other documents to any such Section or
Article or by reason of any reference in any such Section or
Article to any other provision herein or in any other document and
such omission to comply shall not constitute a Default or an Event
of Default under Section 5.1(c) and, with respect to the Mortgage
Documents, Sections 5.1(i) and (j), but, except as specified above
and in the following sentence, the remainder of this Indenture and
such Defeased Mortgage Notes shall be unaffected thereby. Upon
any covenant defeasance, the events set forth in Sections 5.1(d),
(e), (h), (i) (with respect to the Mortgage Documents) and (j)
shall not constitute Defaults or Events of Defaults hereunder and
any cross-reference in any Mortgage Document to a Default or Event
of Default under this Indenture shall not be deemed to include
such Defaults or Events of Default.
Section 4.4. Conditions to Defeasance or Covenant
Defeasance.
The following shall be the conditions to application of
either Section 4.2 or Section 4.3 to the Defeased Mortgage Notes:
(1) The Company or the Partnership shall irrevocably have
deposited or caused to be deposited with the Trustee (or another
trustee satisfying the requirements of Section 6.8 who shall agree
to comply with the provisions of this Article Four applicable to
it) as trust funds in trust for the purpose of making the
following payments, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of such Mortgage
Notes, (a) money in an amount, or (b) U.S. Government Obligations
which through the scheduled payment of principal and interest in
respect thereof in accordance with their terms will provide, not
later than one day before the due date of any payment, money in an
amount, or (c) a combination thereof, sufficient, in the opinion
of a nationally recognized firm of independent public accountants
(46)
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expressed in a written certification thereof delivered to the
Trustee, to pay and discharge and which shall be applied by the
Trustee (or other qualifying trustee) to pay and discharge, (i)
the principal of, premium, if any, and interest on the Defeased
Mortgage Notes on the Stated Maturity of such principal or
installment of principal or interest and (ii) any mandatory
payments applicable to the Outstanding Mortgage Notes on the day
on which such payments are due and payable in accordance with the
terms of this Indenture and of such Mortgage Notes; provided, that
the Trustee (or other qualifying trustee) shall have been
irrevocably instructed to apply such money or the proceeds of such
U.S. Government Obligations to said payments with respect to the
Mortgage Notes. For this purpose, "U.S. Government Obligations"
means securities that are (i) direct obligations of the United
States of America for the timely payment of which its full faith
and credit is pledged or (ii) obligations of a Person controlled
or supervised by and acting as an agency or instrumentality of the
United States of America the timely payment of which is
unconditionally guaranteed as a full faith and credit obligation
by the United States of America, which, in either case, are not
callable or redeemable at the option of the issuer thereof, and
shall also include a depository receipt issued by a bank (as
defined in Section 3(a)(2) of the Securities Act), as custodian
with respect to any such obligation or a specific payment of
principal of or interest on any such obligation held by such
custodian for the account of the holder of such depository
receipt, provided, that (except as required by law) such custodian
is not authorized to make any deduction from the amount payable to
the holder of such depository receipt from any amount received by
the custodian in respect of the U.S Government Obligation or the
specific payment of principal of or interest on the U.S.
Government Obligation evidenced by such depository receipt.
(2) No Default or Event of Default shall have occurred and
be continuing on the date of such deposit or, insofar as
subsections 5.1(f) and (g) are concerned, at any time during the
period ending on the 121st day after the date of such deposit (it
being understood that this condition shall not be deemed satisfied
until the expiration of such period).
(3) Such defeasance or covenant defeasance shall not cause
the Trustee for the Mortgage Notes to have a conflicting interest
in violation of Section 6.7 and for purposes of the Trust
Indenture Act with respect to any securities of the Company, the
Partnership or any other obligor under the Mortgage Notes.
(4) Such defeasance or covenant defeasance shall not result
in a breach or violation of, or constitute a default or event of
default under, this Indenture or any other material agreement or
instrument to which the Company, the Partnership or any other
obligor under the Mortgage Notes is a party or by which it is
bound.
(47)
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(5) In the case of an election under Section 4.2, the
Company or the Partnership, as the case may be, shall have
delivered to the Trustee an Opinion of Counsel stating that (x)
the Company or the Partnership, as the case may be, has received
from, or there has been published by, the Internal Revenue Service
a ruling or (y) since the date hereof, there has been a change in
the applicable Federal income tax law, in either case to the
effect that, and based thereon such opinion shall confirm that,
the Holders of the Outstanding Mortgage Notes will not recognize
income, gain or loss for Federal income tax purposes as a result
of such defeasance and will be subject to Federal income tax on
the same amounts, in the same manner and at the same times as
would have been the case if such defeasance had not occurred.
(6) In the case of an election under Section 4.3, the
Company or the Partnership, as the case may be, shall have
delivered to the Trustee an Opinion of Counsel to the effect that
the Holders of the Outstanding Mortgage Notes will not recognize
income, gain or loss for Federal income tax purposes as a result
of such covenant defeasance and will be subject to Federal income
tax on the same amounts, in the same manner and at the same times
as would have been the case if such covenant defeasance had not
occurred.
(7) The Company or the Partnership, as the case may be,
shall have delivered to the Trustee an Officers' Certificate
stating that the deposit made by the Company or the Partnership,
as the case may be, pursuant to its election under Section 4.2 or
4.3 was not made by the Company or the Partnership, as the case
may be, with the intent of preferring the Holders over the other
creditors of the Company or Partnership with the intent of
defeating, hindering, delaying or defrauding creditors of the
Company or the Partnership, as the case may be, or others.
(8) The Company or the Partnership, as the case may be,
shall have delivered to the Trustee an Officers' Certificate and
an Opinion of Counsel, each stating that all conditions precedent
(other than conditions requiring the passage of time) provided for
relating to either the defeasance under Section 4.2 or the
covenant defeasance under Section 4.3 (as the case may be) have
been complied with as contemplated by this Section 4.4. Opinions
required to be delivered under this Section may have
qualifications customary for opinions of the type required.
Section 4.5. Deposited Money and U.S. Government Obligations
to be Held in Trust; Other Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section
10.3, all money and U.S. Government Obligations (including the
proceeds thereof) deposited with the Trustee (or other qualifying
trustee--collectively for purposes of this Section 4.5, the
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"Trustee") pursuant to Section 4.4 in respect of the Defeased
Mortgage Notes shall be held in trust and applied by the Trustee,
in accordance with the provisions of such Mortgage Notes and this
Indenture, to the payment, either directly or through any Paying
Agent (including the Company acting as its own Paying Agent) as
the Trustee may determine, to the Holders of such Defeased
Mortgage Notes of all sums due and to become due thereon in
respect of principal, premium, if any, and interest, but such
money need not be segregated from other funds except to the extent
required by law.
The Company shall pay and indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against the U.S.
Government Obligations deposited pursuant to Section 4.4 or the
principal and interest received in respect thereof other than any
such tax, fee or other charge which by law is for the account of
the Holders of the Defeased Mortgage Notes.
Anything in this Article Four to the contrary
notwithstanding, the Trustee shall deliver or pay to the Company
from time to time upon Company Request any money or U.S.
Government Obligations held by it as provided in Section 4.4
which, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written
certification thereof delivered to the Trustee, are in excess of
the amount thereof which would then be required to be deposited to
effect an equivalent defeasance or covenant defeasance.
Section 4.6. Reinstatement.
If the Trustee or Paying Agent is unable to apply any money
or U.S. Government Obligations in accordance with Section 4.2 or
4.3, as the case may be, by reason of any order or judgment of any
court or governmental authority enjoining, restraining or
otherwise prohibiting such application, then the Company's and the
Partnership's obligations under this Indenture and the Mortgage
Notes shall be revived and reinstated as though no deposit had
occurred pursuant to Section 4.2 or 4.3, as the case may be, until
such time as the Trustee or Paying Agent is permitted to apply all
such money or U.S. Government Obligations in accordance with
Section 4.2 or 4.3, as the case may be; provided, however, that if
the Company makes any payment of principal, premium, if any, or
interest on any Mortgage Note following the reinstatement of its
obligations, the Company shall be subrogated to the rights of the
Holders of such Mortgage Notes to receive such payment from the
money held by the Trustee or Paying Agent.
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ARTICLE FIVE
REMEDIES
Section 5.1. Events of Default.
"Event of Default", wherever used herein, means any one of
the following events (whatever the reason for such Event of
Default and whether it shall be occasioned by the provisions of
Article Twelve or be voluntary or involuntary or be effected by
operation of law or pursuant to any judgment, decree or order of
any court or any order, rule or regulation of any administrative
or governmental body):
(a) default in the payment of any interest (including any
Defaulted Interest) on any of the Mortgage Notes when the same
becomes due and payable and the default continues for a period of
30 days;
(b) default in the payment of the principal of (or premium,
if any, on) any of the Mortgage Notes when the same becomes due
and payable at its Stated Maturity, upon acceleration, optional
redemption, required repurchase, scheduled principal payment or
otherwise;
(c)(i) default in the performance, or breach, of any
covenant of the Company or the Partnership under the Mortgage
Notes, this Indenture or the Guarantee (other than a default in
the performance, or breach, of a covenant that is specifically
dealt with elsewhere in this Section 5.1) that continues for 30
days after written notice has been given, by registered or
certified mail, (x) to the Company by the Trustee or (y) to the
Company and the Trustee by Holders of at least 25% of the
aggregate principal amount of Outstanding Mortgage Notes,
specifying such default and requiring that it be remedied; (ii)
default in the performance or breach of the provisions of Article
Eight hereof; (iii) the Company or the Partnership shall have
failed to make or consummate a Change of Control Offer in
accordance with Section 10.13 hereof; or (iv) the Partnership or
the Company shall have failed to make or consummate a required
purchase of Mortgage Notes or PIK Notes in accordance with Section
10.9;
(d)(i) any Indebtedness of the Company, the Partnership or
any of the Subsidiaries for borrowed money having an outstanding
principal amount of $10,000,000 in the aggregate or any Mortgage
Debt (other than F,F&E Financing Agreements) of the Partnership or
any of the Subsidiaries, whether such Indebtedness or Mortgage
Debt now exists or shall hereafter be created, becomes, whether by
declaration or otherwise, due and payable prior to its stated
maturity or (ii) a default in any payment when due at final
maturity of any such Indebtedness or Mortgage Debt;
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(e) one or more judgments, orders or decrees for the payment
of money in excess of $10,000,000, either individually or in the
aggregate, shall be rendered against the Company, the Partnership
or any of the Subsidiaries or any of their respective properties
and shall not be discharged and either (i) an enforcement
proceeding shall have been commenced by any creditor upon such
judgment, order or decree or (ii) there shall be any period of 60
days, during which a stay of enforcement of such judgment or
order, by reason of a pending appeal or otherwise, shall not be in
effect;
(f) there shall have been the entry by a court having
jurisdiction in the premises of (i) a decree or order for relief
in respect of the Company, the Partnership or any of the
Subsidiaries in an involuntary case or proceeding under any
applicable Bankruptcy Law or (ii) a decree or order adjudging the
Company, the Partnership or any of the Subsidiaries bankrupt or
insolvent, or seeking reorganization, arrangement, adjustment or
composition of or in respect of the Company, the Partnership or
any of the Subsidiaries under any applicable federal or state law,
or appointing a custodian, receiver, liquidator, assignee,
trustee, sequestrator (or other similar official) of the Company,
the Partnership or any of the Subsidiaries or of any substantial
part of its property, or ordering the winding-up or liquidation of
its affairs, and the continuance of any such decree or order for
relief or any such other decree or order unstayed and in effect
for a period of 60 consecutive days;
(g)(i) the Company, the Partnership or any of the
Subsidiaries commences a voluntary case or proceeding under any
applicable Bankruptcy Law or any other case or proceeding to be
adjudicated bankrupt or insolvent, or (ii) the Company, the
Partnership or any of the Subsidiaries consents to the entry of a
decree or order for relief in respect of the Company, the
Partnership or such Subsidiary in an involuntary case or
proceeding under any applicable Bankruptcy Law or to the
commencement of any bankruptcy or insolvency case or proceeding
against it, or (iii) the Company, the Partnership or any of the
Subsidiaries files a petition or answer or consent seeking
reorganization or relief under any applicable federal or state
law, or the Company, the Partnership or any of the Subsidiaries
consents to (1) the filing of such petition or the appointment of
or taking possession by a custodian, receiver, liquidator,
assignee, trustee, sequestrator or similar official of the
Company, the Partnership or such Subsidiary or of any substantial
part of its property, (2) the making by it of an assignment for
the benefit of creditors or (3) the admission by it in writing of
its inability to pay its debts generally as they become due, or
(iv) the taking of corporate or partnership action by the Company,
the Partnership or any of the Subsidiaries in furtherance of any
such action in this paragraph (g);
(51)
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(h) the revocation, suspension or involuntary loss of any
Permit which results in the cessation of a substantial portion of
the operations of the Casino-Hotel for a period of more than 90
consecutive days;
(i) the Guarantee or any Mortgage Document shall for any
reason cease to be in full force and effect or enforceable in
accordance with its terms;
(j) an "Event of Default" under the Note Mortgage shall have
occurred and is continuing; or
(k) an entity, which at the time, directly or indirectly,
holds general partnership interests in both of Trump Plaza
Associates and Trump Taj Mahal Associates, which general
partnership interests had previously been held by Donald J. Trump
and his Affiliates, sells through an initial public distribution
its equity securities without having first acquired all the direct
and indirect general partnership interests in the Partnership held
by Donald J. Trump as of the date of this Indenture.
Section 5.2. Acceleration of Maturity; Rescission and
Annulment.
If an Event of Default (other than an Event of Default
specified in Section 5.1(f) or (g)) occurs and is continuing, then
and in every such case the Trustee or the Holders of not less than
25% in aggregate principal amount of the Outstanding Mortgage
Notes may, and the Trustee upon the request of the Holders of not
less than 25% in aggregate principal amount of the Outstanding
Mortgage Notes shall, declare the principal of all the Mortgage
Notes to be due and payable immediately in an amount equal to the
principal amount of the Mortgage Notes, together with accrued and
unpaid interest to the date the Mortgage Notes become due and
payable, by a notice in writing to the Company (and to the
Trustee, if given by the Holders) unless on or prior to such
amounts having become due and payable the Company shall have
discharged or paid in full the Indebtedness, if any, that is the
subject of such Event of Default and shall have given written
notice of such cure to the Trustee (which notice in the case of an
Event of Default specified in Section 5.1(d) shall be
countersigned by the holders of the Indebtedness that is the
subject of such Event of Default or by a trustee, fiduciary or
agent for such Holders). If an Event of Default specified in
Section 5.1(f) or (g) occurs and is continuing, then the principal
of all the Mortgage Notes shall ipso facto become and be
immediately due and payable without any declaration or other act
on the part of the Trustee or any Holder.
At any time after such declaration of acceleration has been
made and before a judgment or decree for payment of the money due
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has been obtained by the Trustee as hereinafter in this Article
provided, the Holders of a majority in aggregate principal amount
of the Outstanding Mortgage Notes, by written notice to the
Company and the Trustee, may rescind and annul such declaration
and its consequences if:
(a) the Company has paid or deposited with the Trustee a sum
sufficient to pay:
(i) all amounts due the Trustee under Section 6.6
and the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel,
(ii) all overdue interest on all such Mortgage
Notes,
(iii) the principal of and premium, if any, on any
Mortgage Notes which have become due otherwise than by
such declaration of acceleration and interest thereon at
the rate borne by the Mortgage Notes, and
(iv) to the extent that payment of such interest
is lawful, interest upon overdue interest at the rate
borne by such Mortgage Notes; and
(b) all Events of Default, other than the non-payment of
principal of Mortgage Notes which have become due solely by such
declaration of acceleration, have been cured or waived as provided
in Section 5.13.
No such rescission shall affect any subsequent default or
impair any right consequent thereon as provided in Section 5.13.
Section 5.3. Collection of Indebtedness and Suits for
Enforcement by Trustee.
The Company and the Partnership covenant that if
(a) default is made in the payment of any interest on any
Mortgage Note when such interest becomes due and payable and such
default continues for a period of 30 days, or
(b) default is made in the payment of the principal of or
premium, if any, on any Mortgage Note at the Stated Maturity
thereof,
the Company and the Partnership will, upon demand of the Trustee,
pay to it, for the benefit of the Holders of such Mortgage Notes,
the whole amount then due and payable on such Mortgage Notes for
principal and premium, if any, and interest, with interest upon
the overdue principal and premium, if any, and, to the extent that
payment of such interest shall be legally enforceable, upon
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overdue installments of interest, at the rate borne by the
Mortgage Notes; and, in addition thereto, such further amount as
shall be sufficient to cover the costs and expenses of collection,
including the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel.
If the Company or the Partnership, as the case may be, fails
to pay such amounts forthwith upon such demand, the Trustee, in
its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and
unpaid and may prosecute such proceeding to judgment or final
decree, and may enforce the same against the Company, the
Partnership or any other obligor upon the Mortgage Notes and
collect the moneys adjudged or decreed to be payable in the manner
provided by law out of the property of the Company, the
Partnership or any other obligor upon the Mortgage Notes, wherever
situated.
If an Event of Default occurs and is continuing, the Trustee
may in its discretion (i) proceed to protect and enforce its
rights and the rights of the Holders under this Indenture, the
Guarantee or the Mortgage Documents (subject to the terms thereof)
by such appropriate private or judicial proceedings as the Trustee
shall deem most effectual to protect and enforce such rights,
including, without limitation, any rights or powers conferred on
the Trustee pursuant to the Mortgage Documents and seeking
recourse against the Partnership pursuant to the terms of the
Guarantee, or (ii) to proceed to protect and enforce the rights of
the Trustee and the Holders of Mortgage Notes under the Mortgage
Documents by such appropriate private or judicial proceedings as
the Trustee shall deem most effectual to protect and enforce any
such rights, whether for the specific enforcement of any covenant
or agreement in the Mortgage Documents or in aid of the exercise
of any power granted therein, or to enforce any other proper
remedy, including, without limitation, seeking recourse against
the Partnership pursuant to the terms of the Guarantee,
appointment of a receiver for the Collateral and foreclosure,
realization and sale of the Collateral pursuant to the terms of
the Mortgage Documents. The Trustee shall be entitled to sue and
recover judgment as aforesaid or to sue to enforce any Lien under
the Mortgage Documents, in either case, either before, after or
during the pendency of any other proceeding for the enforcement of
any Lien under the Mortgage Documents, and the right of the
Trustee to recover such judgment shall not be affected by any sale
under any of the Mortgage Documents or by the exercise of any
right, power or remedy for the enforcement of the provisions of
any of the Mortgage Documents, or the foreclosure or enforcement
of any Lien of the Mortgage Documents. No recovery of any such
judgment upon any property of the Company or the Partnership shall
affect or impair the Lien on the Collateral or any rights, powers
or remedies of the Trustee or the Holders.
(54)
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Section 5.4. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment,
composition or other judicial proceeding relative to the Company,
the Partnership or any other obligor upon the Mortgage Notes or
the property of the Company, the Partnership or such other
obligor, the Trustee (irrespective of whether the principal of the
Mortgage Notes shall then be due and payable as therein expressed
or by declaration or otherwise and irrespective of whether the
Trustee shall have made any demand on the Company for the payment
of overdue principal or interest) shall be entitled and empowered,
by intervention in such proceeding or otherwise:
(a) to file and prove a claim for the whole amount of
principal, and premium, if any, and interest owing and unpaid in
respect of the Mortgage Notes and to file such other papers or
documents as may be necessary or advisable in order to have the
claims of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel) and of the Holders allowed in such
judicial proceeding; and
(b) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the
same;
and any custodian, in any such judicial proceeding is hereby
authorized by each Holder to make such payments to the Trustee
and, in the event that the Trustee shall consent to the making of
such payments directly to the Holders, to pay the Trustee any
amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel,
and any other amounts due the Trustee under Section 6.6.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of
any Holder any plan of reorganization, arrangement, adjustment or
composition affecting the Mortgage Notes or the rights of any
Holder thereof, or to authorize the Trustee to vote in respect of
the claim of any Holder in any such proceeding.
Section 5.5. Trustee May Enforce Claims Without Possession
of the Mortgage Notes.
All rights of action and claims under this Indenture or the
Mortgage Notes may be prosecuted and enforced by the Trustee
without the possession of any of the Mortgage Notes or the
production thereof in any proceeding relating thereto, and any
such proceeding instituted by the Trustee shall be brought in its
own name and as trustee of an express trust, and any recovery of
judgment shall, after provision for the payment of the reasonable
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compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, be for the ratable benefit of the Holders
of the Mortgage Notes in respect of which such judgment has been
recovered.
Section 5.6. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article
shall be applied, subject to applicable law, in the following
order, at the date or dates fixed by the Trustee and, in case of
the distribution of such money on account of principal, premium,
if any, or interest, upon presentation of the Mortgage Notes and
the notation thereon of the payment if only partially paid and
upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 6.6;
SECOND: To the payment of the amounts then due and unpaid
upon the Mortgage Notes for principal, premium, if any, and
interest, in respect of which or for the benefit of which such
money has been collected, ratably, without preference or priority
of any kind, according to the amounts due and payable on such
Mortgage Notes for principal, premium, if any, and interest; and
THIRD: The balance, if any, to the Person or Persons entitled
thereto, including the Company.
Section 5.7. Limitation on Suits.
No Holder of any Mortgage Notes shall have any right to
institute any proceeding, judicial or otherwise, with respect to
this Indenture, or for the appointment of a receiver or trustee,
or for any other remedy hereunder, unless
(a) such Holder has previously given written notice to the
Trustee of a continuing Event of Default;
(b) the Holders of not less than 25% in principal amount of
the Outstanding Mortgage Notes shall have made written request to
the Trustee to institute proceedings in respect of such Event of
Default in its own name as Trustee hereunder;
(c) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities
to be incurred in compliance with such request;
(d) the Trustee for 60 days after its receipt of such
notice, request and offer of indemnity has failed to institute any
such proceeding; and
(56)
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(e) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the Holders
of a majority in principal amount of the outstanding Mortgage
Notes;
it being understood and intended that no one or more Holders shall
have any right in any manner whatever by virtue of, or by availing
of, any provision of this Indenture, any Mortgage Document or the
Guarantee to affect, disturb or prejudice the rights of any other
Holders, or to obtain or to seek to obtain priority or preference
over any other Holders or to enforce any right under this
Indenture, except in the manner provided in this Indenture, any
Mortgage Document or the Guarantee and for the equal and ratable
benefit of all of the Holders.
Section 5.8. Unconditional Right of Holders to Receive
Principal, Premium and Interest.
Notwithstanding any other provision in this Indenture, the
Holder of any Mortgage Note shall have the right on the terms
stated herein, which is absolute and unconditional, to receive
payment of the principal of, premium, if any, and (subject to
Sections 3.1 and 3.7) interest on such Mortgage Note on the
respective Stated Maturities expressed in such Mortgage Note (or,
in the case of redemption, on the Redemption Date) and to
institute suit for the enforcement of any such payment, and such
rights shall not be impaired without the consent of such Holder.
Section 5.9. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture, the Guarantee or
the Mortgage Documents and such proceeding has been discontinued
or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case the
Company, the Partnership, any other obligor under the Mortgage
Notes, the Trustee and the Holders shall, subject to any
determination in such proceeding, be restored severally and
respectively to their former positions hereunder, and thereafter
all rights and remedies of the Trustee and the Holders shall
continue as though no such proceeding had been instituted.
Section 5.10. Rights and Remedies Cumulative.
Except as provided in Section 3.6, no right or remedy herein
conferred upon or reserved to the Trustee or to the Holders is
intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given
hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy
(57)
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hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
Section 5.11. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any
Mortgage Note to exercise any right or remedy accruing upon any
Event of Default shall impair any such right or remedy or
constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this
Article or by law to the Trustee or to the Holders may be
exercised from time to time, and as often as may be deemed
expedient, by the Trustee or by the Holders, as the case may be.
Section 5.12. Control by Holders.
The Holders of a majority in principal amount of the
outstanding Mortgage Notes shall have the right to direct the
time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power
conferred on the Trustee hereunder or under the Mortgage
Documents, provided that
(a) such direction shall not be in conflict with any rule of
law or with this Indenture, the Guarantee or any Mortgage Document
or expose the Trustee to personal liability; and
(b) the Trustee may take any other action deemed proper by
the Trustee which is not inconsistent with such direction.
Section 5.13. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount
of the Outstanding Mortgage Notes may on behalf of the Holders of
all the Mortgage Notes waive any past Default hereunder and its
consequences, except a Default
(a) in the payment of the principal of, premium, if any, or
interest on any Mortgage Note, or
(b) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of
the Holder of each Outstanding Mortgage Note affected.
Upon any such waiver, such Default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have
been cured, for every purpose of this Indenture; but no such
waiver shall extend to any subsequent or other default or impair
any right consequent thereon.
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Section 5.14. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any
Mortgage Note by his acceptance thereof shall be deemed to have
agreed, that any court may in its discretion require, in any suit
for the enforcement of any right or remedy under this Indenture or
the Mortgage Documents, or in any suit against the Trustee for any
action taken, suffered or omitted by it as Trustee, the filing by
any party litigant in such suit of an undertaking to pay the costs
of such suit, and that such court may in its discretion assess
reasonable costs, including reasonable attorneys' fees, against
any party litigant in such suit, having due regard to the merits
and good faith of the claims or defenses made by such party
litigant; but the provisions of this Section shall not apply to
any suit instituted by the Trustee, to any suit instituted by any
Holder, or group of Holders, holding in the aggregate more than
10% in principal amount of the Outstanding Mortgage Notes, or to
any suit instituted by any Holder for the enforcement of the
payment of the principal of, premium, if any, or interest on any
Mortgage Note on or after the respective Stated Maturities
expressed in such Mortgage Note (or, in the case of redemption, on
or after the Redemption Date).
Section 5.15. Waiver of Stay, Extension or Usury Laws.
Each of the Company, the Partnership and any other obligor
under the Mortgage Notes covenants (to the extent that it may
lawfully do so) that it will not at any time insist upon, or
plead, or in any manner whatsoever claim or take the benefit or
advantage of, any stay or extension law or any usury or other law
wherever enacted, now or at any time hereafter in force, which
would prohibit or forgive the Company, the Partnership or any such
obligor from paying all or any portion of the principal of,
premium, if any, or interest on the Mortgage Notes contemplated
herein or in the Mortgage Notes or which may affect the covenants
or the performance of this Indenture; and each of the Company, the
Partnership and any such obligor (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage
of any such law, and covenants that it will not hinder, delay or
impede the execution of any power herein granted to the Trustee,
but will suffer and permit the execution of every such power as
though no such law had been enacted.
Section 5.16. Unconditional Right of Holders to Institute
Certain Suits.
Notwithstanding any other provision in this Indenture and any
other provision of any Mortgage Note, the right of any Holder of
any Mortgage Note to receive payment of the principal of, premium,
if any, and interest on such Mortgage Note on or after the
respective due dates expressed in such Mortgage Note, or to
institute suit for the enforcement of any such payment on or after
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such respective dates, shall not be impaired or affected without
the consent of such Holder.
Section 5.17. Management of Casino-Hotel.
Notwithstanding any provision of this Article Five to the
contrary,
(a) following an Event of Default under the Note Mortgage
and the exercise by the Trustee of any of its rights under Section
3.9 of the Note Mortgage or other taking of possession of the
Collateral by the Trustee, the Trustee shall be authorized, in
addition to the rights and powers of the Trustee set forth
elsewhere in this Indenture, the Assignment Agreement and the
other Mortgage Documents, to retain one or more experienced
operators of hotels and/or casinos to manage the Casino-Hotel on
behalf of the Holders, provided that any such operator shall have
all necessary legal qualifications, including all Permits, to
manage the Casino-Hotel; and
(b) no Holder shall have any right to take possession of,
operate or manage all or any portion of, the Casino-Hotel,
individually or as a member of a group, unless such Holder shall
have all necessary legal qualifications, including all Permits, to
do so and shall otherwise be qualified to be retained to manage
the Casino-Hotel under Subsection (a) of this Section 5.17.
ARTICLE SIX
THE TRUSTEE
Section 6.1. Duties of Trustee and Notice of Defaults.
(a) Except during the continuance of an Event of Default,
(1) the Trustee undertakes to perform such duties and
only such duties as are specifically set forth in this
Indenture, the Note Mortgage and the Guarantee Mortgage, and
no implied covenants or obligations shall be read into this
Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the
Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed
therein, upon certificates therein, upon certificates or
opinions furnished to the Trustee and conforming to the
requirements to this Indenture or the Note Mortgage or the
Guarantee Mortgage; but in the case of any such certificates
or opinions which by any provision hereof are specifically
required to be furnished to the Trustee, the Trustee shall be
under a duty to examine the same to determine whether or not
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they conform to the requirements of this Indenture, the Note
Mortgage and the Guarantee Mortgage.
(b) In case of an Event of Default has occurred and is
continuing, the Trustee shall exercise such of the rights and
powers vested in it by this Indenture, and use the same degree of
care and skill in their exercise, as a prudent person would
exercise or use under the circumstances in the conduct of such
person's own affairs.
(c) No provision of this Indenture shall be construed to
relieve the Trustee from liability for its own negligent action,
its own negligent failure to act, or its own willful misconduct,
except that
(1) this Subsection (c) shall not be construed to limit
the effect of Subsection (a) of this Section 6.1;
(2) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless
it shall be proved that the Trustee was negligent in
ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of a majority in
aggregate principal amount of the Outstanding Mortgage Notes
relating to the time, method and place of conducting any
proceeding for any remedy available to Trustee, or exercising
any trust or power conferred upon the Trustee, under this
Indenture; and
(4) no provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur
any financial liability in the performance of any of its
duties hereunder, or in the exercise of any of its rights or
powers, if it shall have reasonable grounds for believing
that repayment of such funds or adequate indemnity against
such risk or liability is not reasonably assured to it.
(d) Whether or not therein expressly so provided, every
provision of this Indenture relating to the conduct or affecting
the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section 6.1.
(e) Within 30 days after the occurrence of any Default, the
Trustee shall transmit by mail to all Holders, as their names and
addresses appear in the Mortgage Note Register, notice of such
Default hereunder known to the Trustee, unless such Default shall
have been cured or waived; provided, however, that, except in the
case of a Default in the payment of the principal of, premium, if
any, or interest on any Mortgage Note, the Trustee shall be
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protected in withholding such notice if and so long as a trust
committee of Responsible Officers of the Trustee in good faith
determines that the withholding of such notice is in the interest
of the Holders; and provided, further, that in the case of any
Default of the character specified in Section 5.1(c) no such
notice to Holders shall be given until at least 15 days after the
occurrence thereof. The Trustee shall not be deemed to have
knowledge of any Default (other than a Default under Section
5.1(a) or (b) hereunder) unless and until the Trustee shall have
received notice of such Default.
Section 6.2. Certain Rights of Trustee.
Subject to the provisions of Section 315 of the Trust
Indenture Act:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence
of indebtedness or other paper or document believed by it to be
genuine and to have been signed or presented by the proper party
or parties;
(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company
Order and any resolution of the Board of Directors may be
sufficiently evidenced by a Board Resolution;
(c) the Trustee may consult with counsel and any
advice of such counsel or any Opinion of Counsel shall be full
and complete authorization and protection in respect of any action
taken, suffered or omitted by it hereunder in good faith and in
reliance thereon in accordance with such advice or Opinion of
Counsel;
(d) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the
request or direction of any of the Holders pursuant to this
Indenture, unless such Holders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred therein or thereby in
compliance with such request or direction;
(e) the Trustee shall not be liable for any action taken or
omitted by it in good faith and believed by it to be authorized or
within the discretion, rights or powers conferred upon it by this
Indenture other than any liabilities arising out of the negligence
of the Trustee;
(f) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
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statement, instrument, opinion, report, notice, request,
direction, consent, order, approval, appraisal, bond, debenture,
note, coupon, security or other paper or document unless requested
in writing so to do by the Holders of not less than a majority in
aggregate principal amount of the Mortgage Notes then Outstanding;
provided that, if the payment within a reasonable time to the
Trustee of the costs, expenses or liabilities likely to be
incurred by it in the making of such investigation is, in the
opinion of the Trustee, not reasonably assured to the Trustee by
the security afforded to it by the terms of this Indenture, the
Trustee may require reasonable indemnity against such expenses or
liabilities as a condition to proceeding; the reasonable expenses
of every such investigation shall be paid by the Partnership or,
if paid by the Trustee or any predecessor Trustee, shall be repaid
by the Partnership upon demand; provided, further, the Trustee in
its discretion may make such further inquiry or investigation into
such facts or matters as it may deem fit, and, if the Trustee
shall determine to make such further inquiry or investigation, it
shall be entitled to examine the books, records and premises of
the Partnership, personally or by agent or attorney;
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be
responsible for any misconduct or negligence on the part of any
agent or attorney appointed with due care by it hereunder;
(h) no provision of this Indenture shall require the Trustee
to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in
the exercise of any of its rights or powers;
(i) the Trustee undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture, and
no implied covenants or obligations shall be read into this
Indenture against the Trustee; and
(j) in addition to and not in limitation of its other powers
hereunder, the Trustee shall have such power and authority as may
be necessary to enter into and accept delivery of any document as
may be necessary to effect on behalf of the Holders of the
Mortgage Notes the subordination of the indebtedness and Liens in
respect of the Mortgage Notes to the Midlantic Term Loan and the
Working Capital Facility and the Liens securing the same, and upon
written request of the Company, the Trustee shall enter into such
agreements on behalf of the Holders.
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Section 6.3. Trustee Not Responsible for Recitals,
Dispositions of Mortgage Notes or Application of Proceeds Thereof.
The recitals contained herein and in the Mortgage Notes,
except the Trustee's certificates of authentication, shall be
taken as the statements of the Company, and the Trustee assumes no
responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this
Indenture or of the Mortgage Notes, except that the Trustee
represents that it is duly authorized to execute and deliver this
Indenture, authenticate the Mortgage Notes and perform its
obligations hereunder and that the statements made by it in a
Statement of Eligibility and Qualification on Form T-1 to be
supplied to the Company will be true and accurate subject to the
qualifications set forth therein. The Trustee shall not be
accountable for the use or application by the Company of Mortgage
Notes or the proceeds thereof.
Section 6.4. Trustee and Agents May Hold Mortgage Notes;
Collections; Etc.
The Trustee, any Paying Agent, Mortgage Note Registrar or any
other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Mortgage Notes, with
the same rights it would have if it were not the Trustee, Paying
Agent, Mortgage Note Registrar or such other agent and, subject to
Sections 310 and 311 of the Trust Indenture Act, may otherwise
deal with the Company and receive, collect, hold and retain
collections from the Company with the same rights it would have if
it were not the Trustee, Paying Agent, Mortgage Note Registrar or
such other agent.
Section 6.5. Money Held in Trust.
All moneys received by the Trustee shall, until used or
applied as herein provided, be held in trust for the purposes for
which they were received, but need not be segregated from other
funds except to the extent required by mandatory provisions of
law. Neither the Trustee nor any agent of the Company or the
Trustee shall be under any liability for interest on any moneys
received by it hereunder.
Section 6.6. Compensation and Indemnification of Trustee and
Its Prior Claim.
The Company and the Partnership covenant and agree to pay to
the Trustee from time to time, and the Trustee shall be entitled
to, reasonable compensation for all services rendered by it
hereunder (which shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust) and
the Partnership covenants and agrees to pay or reimburse the
Trustee and each predecessor Trustee upon its request for all
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reasonable expenses, disbursements and advances incurred or made
by or on behalf of it in accordance with any of the provisions of
this Indenture (including the reasonable compensation and the
expenses and disbursements of its counsel and of all agents and
other persons not regularly in its employ), except any such
expense, disbursement or advance as may arise from such Trustee's
negligence or bad faith. The Company and the Partnership also
covenant to indemnify the Trustee and each predecessor Trustee
for, and to hold it harmless against, any loss, liability, tax,
assessment or other governmental charge (other than taxes
applicable to the Trustee's compensation hereunder) or expense
incurred without negligence or bad faith on its part, arising out
of or in connection with the acceptance or administration of this
Indenture or the trusts hereunder and its duties hereunder
including enforcement of this Section 6.6 and also including any
liability which the Trustee may incur as a result of failure to
withhold, pay or report any tax, assessment or other governmental
charge, and the costs and expenses of defending itself against or
investigating any claim of liability in the premises. The
obligations of the Company and the Partnership under this Section
to compensate and indemnify the Trustee and each predecessor
Trustee and to pay or reimburse the Trustee and each predecessor
Trustee for expenses, disbursements and advances shall constitute
an additional obligation hereunder and shall survive the
satisfaction and discharge of this Indenture.
To secure the Company's and the Partnership's payment
obligations in this Section 6.6, the Trustee shall have a Lien
prior to the Mortgage Notes on all money and property held or
collected by the Trustee or any receiver Trustee, assignee,
liquidator, sequestrator, custodian or similar officer in
Trustee's stead except such money or property held in trust to pay
principal of (or premium, if any) and interest on particular
Mortgage Notes. Such Lien shall survive satisfaction and
discharge of this Indenture, and will be an additional obligation
of the Partnership hereunder.
Section 6.7. Disqualification of Trustee.
(a) If the Trustee has or acquires any conflicting interest,
as defined in Section 310(b) of the Trust Indenture Act, it shall,
within ninety days after ascertaining that it has such conflicting
interest, either eliminate such conflicting interest or resign in
the manner and with the effect set forth in Section 6.9(b).
(b) In the event that the Trustee shall fail to comply with
the provisions of the preceding subsection (a) of this Section,
the Trustee shall, within ten days after the expiration of such
ninety day period, transmit notice of such failure to the Holders,
in the manner and to the extent provided in Section 7.3 with
respect to reports.
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Section 6.8. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall
be a corporation organized and doing business under the laws of
the United States of America or any state or territory or District
of Columbia, authorized under such laws to exercise corporate
trust powers, having a combined capital and surplus of at least
$100,000,000, subject to suspension or examination by federal,
state, territorial or District of Columbia supervising or
examining authority, and having a Corporate Trust Office in The
City of New York to the extent there is such an institution
eligible and willing to serve. If such corporation publishes
reports of condition at least annually, pursuant to law or the
requirements of such supervisory or examining authority, then for
the purposes of this Section, the combined capital and surplus of
such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so
published. If at any time the Trustee shall cease to be eligible
in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereinafter
specified in this Article.
Section 6.9. Resignation and Removal; Appointment of
Successor Trustee.
(a) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article shall
become effective until the acceptance of appointment by the
successor Trustee under Section 6.10.
(b) The Trustee, or any trustee or trustees hereafter
appointed, may at any time resign by giving written notice thereof
to the Company. Upon receiving such notice of resignation, the
Company shall promptly appoint a successor trustee by written
instrument executed by authority of the Board of Directors of the
Company, a copy of which shall be delivered to the resigning
Trustee and a copy to the successor trustee. If an instrument of
acceptance by a successor Trustee shall not have been delivered to
the Trustee within 30 days after the giving of such notice of
resignation, the resigning Trustee may, or any Holder who has been
a bona fide Holder of a Mortgage Note for at least six months may,
on behalf of himself and all others similarly situated, petition
any court of competent jurisdiction for the appointment of a
successor Trustee. Such court may thereupon, after such notice,
if any, as it may deem proper, appoint a successor trustee.
(c) The Trustee may be removed at any time by an Act of the
Holders of a majority in principal amount of the then Outstanding
Mortgage Notes, delivered to the Trustee and to the Company.
(d) If at any time:
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(1) the Trustee shall fail to comply with Section 6.7
after written request therefor by the Company or by any
Holder who has been a bona fide Holder of a Mortgage Note for
at least six months, or
(2) the Trustee shall cease to be eligible under
Section 6.8 and shall fail to resign after written request
therefor by the Company or by any such Holder, or
(3) the Trustee shall become incapable of acting or
shall be adjudged a bankrupt or insolvent, or a receiver of
the Trustee or of its property shall be appointed or any
public officer shall take charge or control of the Trustee or
of its property or affairs for the purpose of rehabilitation,
conservation or liquidation, or
(4) the CCC determines that the Trustee is required to
be licensed or found qualified or suitable and the Trustee
does not become so licensed or found qualified or suitable
within such period as may be prescribed by the CCC,
then, in any such case, (i) the Company by a Board Resolution may
remove the Trustee, or (ii) subject to Section 5.14, any Holder of
a Mortgage Note who has been a bona fide Holder of a Mortgage Note
for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction
for the removal of the Trustee and the appointment of a successor
Trustee. Such court may thereupon, after such notice, if any, as
it may deem proper and prescribe, remove the Trustee and appoint a
successor trustee.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of
Trustee for any cause, the Company, by a Board Resolution, shall
promptly, upon approval of the CCC, appoint a successor Trustee
which Trustee shall be licensed or found qualified or suitable
under the New Jersey Casino Control Act. If, within one year
after such resignation, removal or incapability, or the occurrence
of such vacancy, a successor Trustee shall be appointed by Act of
the Holders of a majority in principal amount of the Outstanding
Mortgage Notes delivered to the Company, upon approval by the CCC
and the retiring Trustee, the successor Trustee so appointed
shall, forthwith upon its acceptance of such appointment, become
the successor Trustee and supersede the successor Trustee
appointed by the Company. If no successor Trustee shall have been
so appointed by the Company or the Holders of the Mortgage Notes
and accepted appointment in the manner hereinafter provided, the
Holder of any Mortgage Note who has been a bona fide Holder for at
least six months may, subject to Section 5.14 hereof, on behalf of
himself and all others similarly situated, petition any court of
competent jurisdiction for the appointment of a successor Trustee.
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(f) The Company shall give notice of each resignation and
each removal of the Trustee and each appointment of a successor
Trustee by mailing written notice of such event by first-class
mail, postage prepaid, to the Holders of Mortgage Notes as their
names and addresses appear in the Mortgage Note Register. Each
notice shall include the name of the successor Trustee and the
address of its Corporate Trust Office.
Section 6.10. Acceptance of Appointment by Successor.
Every successor Trustee appointed hereunder shall execute,
acknowledge and deliver to the Company and to the retiring Trustee
an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become
effective and such successor Trustee, without any further act,
deed or conveyance, shall become vested with all the rights,
powers, trusts and duties of the retiring Trustee as if originally
named as Trustee hereunder; but, nevertheless, on the written
request of the Company or the successor Trustee, upon payment of
its charges then unpaid, such retiring Trustee shall pay over to
the successor Trustee all moneys at the time held by it hereunder
and shall execute and deliver an instrument transferring to such
successor Trustee all such rights, powers, duties and obligations.
Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Trustee all such
rights and powers. Any Trustee ceasing to act shall,
nevertheless, retain a prior claim upon all property or funds held
or collected by such Trustee to secure any amounts then due it
pursuant to the provisions of Section 6.6.
No successor Trustee with respect to the Mortgage Notes shall
accept appointment as provided in this Section 6.10 unless at the
time of such acceptance such successor Trustee shall be eligible
to act as Trustee under the provisions of Section 310(a) of the
Trust Indenture and shall have a combined capital and surplus of
at least $100,000,000 and have a Corporate Trust Office in The
City of New York.
Upon acceptance of appointment by any successor Trustee as
provided in this Section 6.10, the Company shall give notice
thereof to the Holders of the Mortgage Notes, by mailing such
notice to such Holders at their addresses as they shall appear on
the Mortgage Note Register. If the acceptance of appointment is
substantially contemporaneous with the resignation, then the
notice called for by the preceding sentence may be combined with
the notice called for by Section 6.9. If the Company fails to
give such notice within 10 days after acceptance of appointment by
the successor Trustee, the successor Trustee shall cause such
notice to be given at the expense of the Company.
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Section 6.11. Merger, Consolidation or Succession to
Business.
Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which
the Trustee shall be a party, or any corporation succeeding to all
or substantially all of the corporate trust business of the
Trustee, shall be the successor of the Trustee hereunder, provided
such corporation shall be eligible under Section 310(a) of the
Trust Indenture Act and shall have a combined capital and surplus
of at least $100,000,000 and have a Corporate Trust Office in the
City of New York, without the execution or filing of any paper or
any further act on the part of any of the parties hereto.
In case at the time such successor to the Trustee shall
succeed to the trusts created by this Indenture any of the
Mortgage Notes shall have been authenticated but not delivered,
any such successor to the Trustee may adopt the certificate of
authentication of any predecessor Trustee and deliver such
Mortgage Notes so authenticated; and, in case at that time any of
the Mortgage Notes shall not have been authenticated, any
successor to the Trustee may authenticate such Mortgage Notes
either in the name of any predecessor hereunder or in the name of
the successor Trustee; and in all such cases such certificate
shall have the full force which it is anywhere in the Mortgage
Notes or in this Indenture provided that the certificate of the
Trustee shall have; provided that the right to adopt the
certificate of authentication of any predecessor Trustee or to
authenticate Mortgage Notes in the name of any predecessor Trustee
shall apply only to its successor or successors by merger,
conversion or consolidation.
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 7.1. Company to Furnish Trustee Names and Addresses
of Holders.
The Company will furnish or cause to be furnished to the
Trustee:
(a) semiannually, not more than 10 days after each Regular
Record Date, a list, in such form as the Trustee may reasonably
require, of the names and addresses of the Holders as of such
Regular Record Date; and
(b) at such other times as the Trustee may request in
writing, within 30 days after receipt by the Company of any such
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request, a list of similar form and content as of a date not more
than 15 days prior to the time such list is furnished;
provided, however, that if and so long as the Trustee shall be the
Mortgage Note Registrar, no such list need be furnished pursuant
to clause (a) or (b) of this Section 7.1.
Section 7.2. Disclosure of Names and Addresses of Holders.
Every Holder of Mortgage Notes, by receiving and holding the
same, agrees with the Company and the Trustee that neither the
Company nor the Trustee shall be held accountable by reason of the
disclosure of any information as to the names and addresses of the
Holders in accordance with the New Jersey Casino Control Act or
Section 312 of the Trust Indenture Act, regardless of the source
from which such information was derived, and that the Trustee
shall not be held accountable by reason of mailing any material
pursuant to a request made under Section 312 of the Trust
Indenture Act.
Section 7.3. Reports by Trustee.
(a) Within 60 days after May 15 of each year commencing with
May 15, 1994, the Trustee shall transmit by mail to all Holders,
as their names and addresses appear in the Mortgage Note Register,
as provided in Section 313(c) of the Trust Indenture Act, a brief
report dated as of such May 15 in accordance with and to the
extent required by Section 313(a) of the Trust Indenture Act.
(b) The Trustee will provide the CCC and the Director of the
NJDGE with:
(1) copies of all notices, reports and other written
communications which the Trustee gives to Holders;
(2) a list of Holders promptly after the original
issuance of the Mortgage Notes and a list of Holders eight
months and two months prior to the expiration date of each
then-current gaming Permit held by the Partnership;
(3) notice of any Event of Default under this Indenture
or of any event, occurrence or condition which, with the
giving of notice or lapse of time or both would constitute an
Event of Default, any acceleration of the Indebtedness
evidenced or secured hereby, the institution of any legal
actions or proceedings before any court or governmental
authority in respect of this Indenture (including the
Guarantee) or the Mortgage Documents, the entering into or
taking possession of any property constituting the Collateral
and any rescission, annulment or waiver in respect of an
Event of Default;
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(4) notice of the removal or resignation of the Trustee
within five Business Days thereof;
(5) notice of any transfer or assignment of rights
under this Indenture (including the Guarantee) (but not in
respect of the Mortgage Notes) or the Mortgage Documents
within five Business Days thereof; and
(6) a copy of any amendment to the Mortgage Notes, this
Indenture (including the Guarantee) or the Mortgage Documents
within five Business Days of the effectiveness thereof.
The notice specified in clause (3) above shall be in writing and,
except as set forth below, shall be given within five Business
Days after the Trustee has transmitted the notice required by
Section 6.1. In the case of any notice in respect of any Event of
Default, such notice shall be accompanied by a copy of any notice
from the Holders, or a representative thereof or the Trustee, to
the defaulting Person and, if accompanied by any such notice to
the defaulting Person, shall be given simultaneously with the
giving of any such notice to the defaulting Person. In the case
of any legal actions or proceedings, such notice shall be
accompanied by a copy of the complaint or other initial pleading
or document.
The Trustee shall in accordance with the limitations set
forth herein cooperate with the CCC and the Director of NJDGE in
order to provide the CCC and said Director with information and
documentation relevant to compliance with clause (3) above and as
otherwise required by the New Jersey Casino Control Act.
The Partnership will advise the Trustee of the expiration
date of the then-current gaming Permit held by the Partnership at
least 90 days prior to the expiration thereof and the Trustee
until so advised may assume that such Permit has not expired.
Section 7.4. Reports by the Company and the Partnership.
The Company and the Partnership shall:
(a) file with the Trustee, in accordance with Section 10.18
hereof within 15 days after the Company or the Partnership, as the
case may be, is required to file the same with the SEC, copies of
the annual reports and of the information, documents and other
reports (or copies of such portions of any of the foregoing as the
SEC may from time to time by rules and regulations prescribe)
which the Company or the Partnership may be required to file with
the SEC pursuant to Section 13 or Section 15(d) of the Exchange
Act; or, if the Company or the Partnership, as the case may be, is
not required to file information, documents or reports pursuant to
either of said Sections, then it shall file with the Trustee and
the SEC, in accordance with rules and regulations prescribed from
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time to time by the SEC, such of the supplementary and periodic
information, documents and reports which may be required pursuant
to Section 13 of the Exchange Act in respect of a security listed
and registered on a national securities exchange as may be
prescribed from time to time in such rules and regulations;
(b) file with the Trustee and the SEC, in accordance with
the rules and regulations prescribed from time to time by the SEC,
such additional information, documents and reports with respect to
compliance by the Company or the Partnership, as the case may be,
with the conditions and covenants of this Indenture as may be
required from time to time by such rules and regulations; and
(c) transmit by mail to all Holders, as their names and
addresses appear in the Mortgage Note Register, within 30 days
after the filing thereof with the Trustee, in the manner and to
the extent provided in Section 313(c) of the Trust Indenture Act,
such summaries of any information, documents and reports required
to by filed by the Company or the Partnership, as the case may be,
pursuant to Subsections (a) and (b) of this Section as may be
required by rules and regulations prescribed from time to time by
the SEC.
ARTICLE EIGHT
CONSOLIDATION, MERGER,
CONVEYANCE, TRANSFER OR LEASE
Section 8.1. Company or the Partnership May Consolidate,
Merge, etc., Only on Certain Terms.
(a) The Partnership shall not consolidate with, merge with
or into any other Person or sell, assign, convey, transfer, lease
or otherwise dispose of all or substantially all of its properties
and assets (as an entirety or substantially as an entirety in one
transaction or series of related transactions) to any other Person
or group of affiliated Persons or permit any of the Subsidiaries
to enter into any such transaction or transactions if such
transaction or transactions, in the aggregate, would result in a
transfer of all or substantially all of the assets of the
Partnership and the Subsidiaries on a consolidated basis to any
other Person or group of affiliated Persons, unless:
(i) either (a) the Partnership shall be the continuing
Person, or (b) the Person (if other than the Partnership)
formed by such consolidation or into which the Partnership is
merged or the Person which acquires by conveyance, transfer,
lease or disposition the properties and assets of the
Partnership (the "Surviving Entity") shall be a corporation
or partnership duly organized and validly existing under the
laws of the United States of America, any state thereof or
(72)
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the District of Columbia and shall, in either case, expressly
assume, by an indenture supplemental to this Indenture,
executed and delivered to the Trustee, in form satisfactory
to the Trustee, the Guarantee and the performance and
observance of every covenant of this Indenture and the
Mortgage Documents on the part of the Partnership to be
performed or observed and this Indenture and the Mortgage
Documents shall remain in full force and effect;
(ii) immediately after giving effect to such
transaction on a pro forma basis (and treating any
Indebtedness not previously an obligation of the Partnership
or a Subsidiary which becomes the obligation of the
Partnership or any of its Subsidiaries in connection with or
as a result of such transaction as having been incurred at
the time of such transaction), the Consolidated Net Worth of
the Partnership (or the Surviving Entity if the Partnership
is not the continuing obligor under this Indenture) is at
least equal to the Consolidated Net Worth of the Partnership
immediately prior to such transaction or series of
transactions;
(iii) immediately before and immediately after giving
effect to such transaction on a pro forma basis (and treating
any Indebtedness not previously an obligation of the
Partnership or a Subsidiary which becomes the obligation of
the Partnership or any of its Subsidiaries in connection with
or as a result of such transaction as having been incurred at
the time of such transaction), (A) no Default or Event of
Default, shall have occurred and be continuing and (B) the
Partnership (or the Surviving Entity if the Partnership is
not the continuing obligor under this Indenture) after giving
effect to such transaction, could incur $1.00 of additional
Indebtedness (other than Permitted Indebtedness), under the
provisions of Section 10.7;
(iv) immediately after such transaction, the
Partnership or the Surviving Entity holds all Permits
required for operation of the business of, and such entity is
controlled by a Person or entity (or has retained a Person or
entity which is) experienced in, operating casino hotels or
otherwise holds all Permits (including from the CCC) to
operate its business; and
(v) in connection with any consolidation, merger,
transfer or lease contemplated hereby, the Partnership shall
deliver, or cause to be delivered, to the Trustee, in the
form and substance reasonably satisfactory to the Trustee, an
Officers' Certificate and an Opinion of Counsel, each stating
that such consolidation, merger, transfer or lease and the
supplemental indenture in respect thereto comply with the
provisions described herein and that (A) all conditions
(73)
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precedent herein provided for relating to such transaction
have been complied with and (B) the transaction shall not
impair the Lien of the Mortgage Documents, this Indenture and
the Mortgage Notes and the rights and powers of the Trustee
and Holders thereunder.
(b) The Company shall not consolidate with or merge with or
into any other Person or sell, assign, convey, transfer, lease or
otherwise dispose of all or substantially all of its properties
and assets (as an entirety in one transaction or series of related
transactions) to any other Person or group of affiliated Persons
unless:
(i) either (1) the Company shall be the continuing
corporation or (2) the Person (if other than the Company)
formed by such consolidation, or into which the Company is
merged or the Person which acquires by sale, assignment,
conveyance, transfer, lease or disposition the properties and
assets of the Company (the "Surviving Entity") shall be a
corporation, partnership or trust organized and validly
existing under the laws of the United States of America, any
state thereof or the District of Columbia and shall, in
either case, expressly assume by an indenture supplemental
hereto, executed and delivered to the Trustee, in form
satisfactory to the Trustee, all the obligations of the
Company under the Mortgage Notes, this Indenture and the
Mortgage Documents;
(ii) immediately before and immediately after giving
effect to such transaction on a pro forma basis, no Default
or Event of Default shall have occurred and be continuing;
(iii) the Partnership shall have by supplemental
indenture confirmed that its obligations under the Guarantee
and the Mortgage Documents shall apply to such Person's
obligations under this Indenture and the Mortgage Notes;
(iv) immediately after giving effect to such
transaction on a pro forma basis (and treating any
Indebtedness not previously an obligation of the Partnership
or a Subsidiary which becomes the obligation of the
Partnership or any Subsidiary in connection with or as a
result of such transaction as having been incurred at the
time or such transaction), the Consolidated Net Worth of the
Company (or the Surviving Entity if the Company is not the
continuing obligor under this Indenture) is at least equal to
the Consolidated Net Worth of the Company immediately prior
to such transaction or series of transactions;
(v) immediately before and immediately after giving
effect to such transaction on a pro forma basis (and treating
any Indebtedness not previously an obligation of the
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Partnership or a Subsidiary which becomes the obligation of
the Partnership or any of its Subsidiaries in connection with
or as a result of such transaction as having been incurred at
the time of such transaction), the Partnership or its
successor, after giving effect to such transaction, could
incur at least $1.00 of additional Indebtedness (other than
Permitted Indebtedness), under the provisions of Section 10.7;
(vi) immediately after such transaction, the Company or
the Surviving Entity holds all Permits required for the
operation of the business of the Company and immediately
after such transaction, the Partnership or its successor
holds all permits required for operation of the business of,
and such entity is controlled by a Person or entity (or has
retained a Person or entity which is) experienced in,
operating casino hotels or otherwise holds all Permits
(including from the CCC) to operate its business; and
(vii) the Company shall have delivered to the Trustee
an Officers' Certificate and an Opinion of Counsel, each
stating that such consolidation, merger, sale, assignment,
conveyance, transfer, lease or disposition and such
supplemental indenture comply with this Indenture, and that
(A) all conditions precedent herein relating to such
transaction have been complied with and (B) the transaction
shall not impair the Lien of the Mortgage Documents, this
Indenture and the Mortgage Notes and the rights and powers of
the Trustee and Holders thereunder.
Section 8.2. Successor Substituted.
Upon any consolidation or merger, or any sale, assignment,
conveyance, transfer or disposition of all or substantially all of
the properties and assets of the Company or the Partnership in
accordance with Section 8.1 (other than a lease), the successor
Person formed by such consolidation or into which the Company or
the Partnership, as the case may be, is merged or the successor
Person to which such sale, assignment, conveyance, transfer or
disposition is made shall succeed to, and be substituted for, and
may exercise every right and power of, the Company or the
Partnership, as the case may be, under this Indenture and/or the
Guarantee, as the case may be, and the Mortgage Documents with the
same effect as if such successor had been named as the Company or
the Partnership, as the case may be, herein and/or the Guarantee,
as the case may be; and thereafter, except in the case of a lease,
the Company or the Partnership, as the case may be, shall be
discharged from all obligations and covenants under this
Indenture, the Mortgage Notes, the Mortgage Documents and/or the
Guarantee, as the case may be.
(75)
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ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 9.1. Supplemental Indentures and Agreements without
Consent of Holders.
Without the consent of any Holders, the Company and the
Partnership when authorized by a Board Resolution, and the
Trustee, at any time and from time to time, may enter into one or
more indentures supplemental hereto or agreements or other
instruments with respect to any Collateral, the Mortgage Documents
or the Guarantee, in form and substance satisfactory to the
Trustee, for any of the following purposes:
(a) to evidence the succession of another Person to the
Company or the Partnership, and the assumption by any such
successor of the covenants of the Company or the Partnership
herein and in the Mortgage Notes, in the Guarantee and in the
Mortgage Documents;
(b) to add to the covenants of the Company or the
Partnership for the benefit of the Holders, or to surrender any
right or power herein conferred upon the Company or the
Partnership, as applicable, herein or in any Mortgage Document or
the Guarantee;
(c) to cure any ambiguity, to correct or supplement any
provision herein which may be defective or inconsistent with any
other provision herein, any Mortgage Document or the Guarantee, or
to clarify any other provisions with respect to matters or
questions arising under this Indenture, any Mortgage Document or
the Guarantee; provided that, in each case, such provisions shall
not adversely affect the interests of the Holders;
(d) to comply with the requirements of the SEC in order to
effect or maintain the qualification of this Indenture under the
Trust Indenture Act, as contemplated by Section 9.5 or otherwise;
(e) to add a guarantor of the Indenture Obligations;
(f) to evidence and provide the acceptance of the
appointment of a successor Trustee hereunder;
(g) to mortgage, pledge, hypothecate or grant a security
interest in favor of the Trustee for the benefit of the Holders as
additional security for the payment and performance of the
Indenture Obligations, in any property or assets, including any
which are required to be mortgaged, pledged or hypothecated, or in
which a security interest is required to be granted to the Trustee
pursuant to this Indenture or any Mortgage Document or otherwise;
or
(76)
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(h) to effect the subordination described in Section 6.2(j)
hereof.
The terms of any document entered into pursuant to this
Section shall be subject to prior approval, if required, of the
CCC and the NJDGE.
Section 9.2. Supplemental Indentures and Agreements with
Consent of Holders.
With the consent of the Holders of not less than a majority
in aggregate principal amount of the Outstanding Mortgage Notes,
by Act of said Holders delivered to the Company, the Partnership
and the Trustee, the Company and the Partnership when authorized
by Board Resolutions, and the Trustee may enter into an indenture
or indentures supplemental hereto or agreements or other
instruments with respect to the Collateral, Mortgage Documents or
the Guarantee in form and substance satisfactory to the Trustee
for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of this Indenture or
of modifying in any manner the rights of the Holders under this
Indenture, the Mortgage Notes, the Guarantee or any of the
Mortgage Documents; provided, however, that no such supplemental
indenture, agreement or instrument shall, without the consent of
the Holder of each Outstanding Mortgage Note affected thereby:
(a) change the Stated Maturity of the principal of, or any
installment of interest on, any Mortgage Note or reduce the
principal amount thereof or the rate of interest thereon or any
premium payable upon the redemption thereof, or change the coin or
currency in which any Mortgage Note or any premium or the interest
thereon is payable, or impair the right to institute suit for the
enforcement of any such payment after the Stated Maturity thereof
(or, in the case of redemption, on or after the Redemption Date);
(b) modify the obligation of the Company and the Partnership
to make and consummate the Change of Control Offer under Section
10.13 (or modify any of the provisions or definitions with respect
thereto in a manner which adversely affects the rights of
Holders);
(c) reduce the percentage in principal amount of the
Outstanding Mortgage Notes, the consent of whose Holders is
required for any such supplemental indenture or amendment to any
of the Mortgage Documents, or the consent of whose Holders is
required for any waiver (of compliance with certain provisions of
this Indenture or certain Defaults hereunder and their
consequences) provided for in this Indenture, or with respect to
the Guarantee or any Mortgage Document;
(77)
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(d) modify any of the provisions of this Section or Sections
5.13 and 10.20, except to increase any such percentage or to
provide that certain other provisions of this Indenture or any
Mortgage Document cannot be modified or waived without the consent
of the Holder of each Mortgage Note affected thereby; or
(e) except as otherwise permitted by Article Eight, consent
to the assignment or transfer by the Company or the Partnership of
any of its rights and obligations under this Indenture; or to the
release of any Collateral from the Liens created by the Mortgage
Documents except in accordance with this Indenture and the
Mortgage Documents.
Upon the written request of the Company and the Partnership
accompanied by a copy of a Board Resolution authorizing the
execution of any such supplemental indenture, and upon the filing
with the Trustee of evidence of the consent of Holders as
aforesaid, the Trustee shall join with the Company, the
Partnership and any other obligor under the Mortgage Notes in the
execution of such supplemental indenture.
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed
supplemental indenture, but it shall be sufficient if such Act
shall approve the substance thereof.
The terms of any document entered into pursuant to this
Section shall be subject to prior approval, if required, of the
CCC and the NJDGE.
Section 9.3. Execution of Supplemental Indentures and
Agreements.
In executing, or accepting the additional trusts created by,
any supplemental indenture, agreement or instrument permitted by
this Article or the modifications thereby of the trusts created by
this Indenture, the Trustee shall be entitled to receive, and
shall be fully protected in relying upon, an Opinion of Counsel
and an Officers' Certificate stating that the execution of such
supplemental indenture, agreement or instrument is authorized or
permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture,
agreement or instrument which affects the Trustee's own rights,
duties or immunities under this Indenture, the Guarantee, any
Mortgage Document or otherwise.
Section 9.4. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this
Article, this Indenture shall be modified in accordance therewith,
and such supplemental indenture shall form a part of this
Indenture for all purposes; and every Holder of Mortgage Notes
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theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
Section 9.5. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this
Article shall conform to the requirements of the Trust Indenture
Act as then in effect.
Section 9.6. Reference in Mortgage Notes to Supplemental
Indentures.
Mortgage Notes authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article
may, and shall if required by the Trustee, bear a notation in form
approved by the Trustee as to any matter provided for in such
supplemental indenture. If the Company shall so determine, new
Mortgage Notes so modified as to conform, in the opinion of the
Trustee and the Board of Directors, to any such supplemental
indenture may be prepared and executed by the Company, the
Partnership and any other obligor upon the Mortgage Notes and
authenticated and delivered by the Trustee in exchange for
Outstanding Mortgage Notes.
Section 9.7. Record Date.
The Company may, but shall not be obligated to, fix a record
date for the purpose of determining the Holders entitled to
consent to any supplemental indenture, agreement or instrument or
any waiver, and shall promptly notify the Trustee of any such
record date. If a record date is fixed those Persons who were
Holders at such record date (or their duly designated proxies),
and only those Persons, shall be entitled to consent to such
supplemental indenture, agreement or instrument or waiver or to
revoke any consent previously given, whether or not such Persons
continue to be Holders after such record date. The record date
shall be a date no more than 30 days prior to the first
solicitation of Holders generally in connection therewith and no
later than the date such solicitation is completed. No such
consent shall be valid or effective for more than 90 days after
such record date.
(79)
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ARTICLE TEN
COVENANTS
Section 10.1. Payment of Principal, Premium and Interest.
The Company will duly and punctually pay the principal of,
premium, if any, and interest on the Mortgage Notes in accordance
with the terms of the Mortgage Notes and this Indenture.
Section 10.2. Maintenance of Office or Agency.
The Company will maintain in The City of New York, an office
or agency where Mortgage Notes may be presented or surrendered for
payment, where Mortgage Notes may be surrendered for registration
of transfer or exchange and where notices and demands to or upon
the Company in respect of the Mortgage Notes and this Indenture
may be served. The office of the Trustee at its Corporate Trust
Office shall be such office or agency of the Company, unless the
Company shall designate and maintain some other office or agency
for one or more of such purposes. The Company will give prompt
written notice to the Trustee of any change in the location of any
such office or agency. If at any time the Company shall fail to
maintain any such required office or agency or shall fail to
furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the
Corporate Trust Office, and the Company hereby appoints the
Trustee as its agent to receive all such presentations,
surrenders, notices and demands.
The Company may from time to time designate one or more other
offices or agencies (in or outside of The City of New York) where
the Mortgage Notes may be presented or surrendered for any or all
such purposes, and may from time to time rescind such designation;
provided, however, that no such designation or rescission shall in
any manner relieve the Company of its obligation to maintain an
office or agency in The City of New York for such purposes. The
Company will give prompt written notice to the Trustee of any such
designation or rescission and any change in the location of any
such office or agency.
Section 10.3. Money for Mortgage Note Payments to be Held in
Trust.
If the Company shall at any time act as its own Paying Agent,
it will, on or before each due date of the principal of, premium,
if any, or interest on any of the Mortgage Notes, segregate and
hold in trust for the benefit of the Holders entitled thereto a
sum sufficient to pay the principal, premium, if any, or interest
so becoming due until such sums shall be paid to such Persons or
otherwise disposed of as herein provided, and will promptly notify
the Trustee of its action or failure so to act.
(80)
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If the Company is not acting as Paying Agent, the Company
will, on or before each due date of the principal of, premium, if
any, or interest on, any Mortgage Notes, deposit with a Paying
Agent a sum in same day funds sufficient to pay the principal,
premium, if any, or interest so becoming due, such sum to be held
in trust for the benefit of the Persons entitled to such
principal, premium or interest, and (unless such Paying Agent is
the Trustee) the Company will promptly notify the Trustee of such
action or any failure so to act.
If the Company is not acting as Paying Agent, the Company
will cause each Paying Agent other than the Trustee to execute and
deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee, subject to the provisions of this
Section, that such Paying Agent will:
(a) hold all sums held by it for the payment of the
principal of, premium, if any, or interest on the Mortgage Notes
in trust for the benefit of the Persons entitled thereto until
such sums shall be paid to such Persons or otherwise disposed of
as herein provided;
(b) give the Trustee notice of any Default by the Company or
the Partnership (or any other obligor upon the Mortgage Notes) in
the making of any deposit of principal, premium, if any, or
interest;
(c) at any time during the continuance of any such Default,
upon the written request of the Trustee, forthwith pay to the
Trustee all sums so held in trust by such Paying Agent; and
(d) acknowledge, accept and agree to comply in all aspects
with the provisions of this Indenture relating to the duties,
rights and disabilities of such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other
purpose, pay, or by Company Order direct any Paying Agent to pay,
to the Trustee all sums held in trust by the Company or such
Paying Agent, as the case may be, such sums to be held by the
Trustee upon the same trusts as those upon which such sums were
held by the Company or such Paying Agent; and, upon such payment
by any Paying Agent to the Trustee, such Paying Agent shall be
released from all further liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or
then held by the Company, in trust for the payment of the
principal of, premium, if any, or interest on any Mortgage Note
and remaining unclaimed for two years after such principal (and
premium, if any) or interest has become due and payable shall (if
held by the Trustee or any Paying Agent) be paid to the Company on
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Company Request, and shall be discharged from such trust; and the
Holder of such Mortgage Note shall thereafter, as an unsecured
general creditor, look only to the Company for payment thereof,
and all liability of the Trustee or such Paying Agent with respect
to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease; provided, however, that the
Trustee or such Paying Agent, before being required to make any
such repayment, may at the expense of the Company cause to be
published once, in The New York Times and The Wall Street Journal
(national edition), notice that such money remains unclaimed and
that, after a date specified therein, which shall not be less than
30 days from the date of such notification or publication, any
unclaimed balance of such money then remaining will be repaid to
the Company.
Section 10.4. Corporate and Partnership Existence.
Subject to Article Eight, the Company and the Partnership
will do or cause to be done all things necessary to preserve and
keep in full force and effect the respective corporate or
partnership existence, rights (charter and statutory) and
franchises of the Company and the Partnership; provided, however,
that the Company and the Partnership shall not be required to
preserve any such right or franchise if the Board of Directors of
the Company shall determine that the preservation thereof is no
longer desirable in the conduct of the business of the Company and
the Partnership and that the loss thereof is not disadvantageous
in any material respect to the Holders.
Section 10.5. Payment of Taxes and Other Claims.
The Company and the Partnership each will, and will cause the
Subsidiaries to, pay or discharge or cause to be paid or
discharged, before any fine, penalty, interest or cost may be
added for nonpayment, (a) all taxes, assessments and governmental
charges levied or imposed upon the Company, the Partnership or any
Subsidiary or upon the income, profits or property of the Company,
the Partnership or any Subsidiary and (b) all lawful claims for
labor, materials and supplies, which, if unpaid, might by law
become a lien upon the property of the Company, the Partnership or
any Subsidiary and shall otherwise comply with the Note Mortgage;
provided, however, that neither the Company, the Partnership nor
any Subsidiary shall be required to pay or discharge or cause to
be paid or discharged any such tax, assessment, charge or claim
whose amount, applicability or validity is being contested in good
faith by appropriate proceedings properly instituted and
diligently conducted and in respect of which appropriate reserves
(in the good faith judgment of management of the Company or the
Partnership) are being maintained in accordance with Generally
Accepted Accounting Principles consistently applied.
(82)
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Section 10.6. Maintenance of Properties.
The Company and the Partnership each will, and will cause the
Subsidiaries to, cause all properties owned by the Company, the
Partnership or any Subsidiary or used or held for use in the
conduct of the Company's or the Partnership's business or the
business of any Subsidiary to be maintained and kept in good
condition, repair and working order (excepting reasonable wear and
tear) and supplied with all necessary equipment and will cause to
be made all necessary repairs, renewals, replacements, betterments
and improvements thereof, all as in the judgment of the Company or
the Partnership may be necessary so that the business carried on
in connection therewith may be properly and advantageously
conducted at all times; provided, however, that nothing in this
Section shall prevent the Company or the Partnership from
discontinuing or allowing the discontinuance of the maintenance of
any of such properties if such discontinuance is, in the judgment
of the Company or the Partnership, desirable in the conduct of
their respective businesses or the business of any Subsidiary and
not disadvantageous in any material respect to the Holders.
Nothing in this Section 10.6 shall diminish the obligations of the
Company or the Partnership with respect to the Collateral as set
forth in the Mortgage Documents.
Section 10.7. Limitation on Partnership Indebtedness.
The Partnership will not, and will not permit any of the
Subsidiaries to, create, incur, assume, or directly or indirectly
guarantee or in any other manner become directly or indirectly
liable for the payment of, any Indebtedness (including any
Acquired Indebtedness, but excluding Permitted Indebtedness)
unless, in the case of Indebtedness of the Partnership and
Acquired Indebtedness, (a) the Partnership's Consolidated Fixed
Charge Coverage Ratio for the four full fiscal quarters
immediately preceding such event, taken as one period (and after
giving pro forma effect to: (i) the incurrence of such
Indebtedness and (if applicable) the application of the net
proceeds therefrom, including to refinance other Indebtedness, as
if such Indebtedness were incurred and the application of such
proceeds occurred at the beginning of such four-quarter period;
(ii) the incurrence, repayment or retirement of any other
Indebtedness by the Partnership or the Subsidiaries since the
first day of such four-quarter period as if such Indebtedness were
incurred, repaid or retired at the beginning of such four-quarter
period (except that, in making such computation, the amount of
Indebtedness under any revolving credit facility shall be computed
based upon the average daily balance of such Indebtedness during
such four-quarter period); and (iii) the acquisition (whether by
purchase, merger or otherwise) or disposition (whether by sale,
merger or otherwise) of any company, entity or business acquired
or disposed of by the Partnership or the Subsidiaries, as the case
may be, since the first day of such four-quarter period, as if
(83)
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such acquisition or disposition occurred at the beginning of such
four-quarter period), would have been at least equal to the ratios
set forth below for any such four-quarter period ending during the
fiscal years indicated below:
Fiscal Year Ratio
1993 and 1994 1.50 to 1
1995 and thereafter 1.75 to 1
and (b) except in the case of Permitted Indebtedness, Acquired
Indebtedness or Pari Passu Indebtedness, such Indebtedness
created, incurred, assumed or guaranteed pursuant to this
Section (i) has an Average Life to Stated Maturity that exceeds
the remaining Average Life to Stated Maturity of the Mortgage
Notes and (ii) has a Stated Maturity for its final scheduled
principal payment later than the Stated Maturity for the final
scheduled principal payment of the Mortgage Notes and (c) if such
Indebtedness created, incurred, assumed or guaranteed pursuant to
this Section is Pari Passu Indebtedness which is not Permitted
Indebtedness or Acquired Indebtedness, such Indebtedness shall
have (i) an Average Life to Stated Maturity no shorter than the
remaining Average Life to Stated Maturity of the Mortgage Notes
and (ii) a Stated Maturity for its final scheduled principal
payment that is not earlier than the Stated Maturity for the final
scheduled principal payment of the Mortgage Notes.
Section 10.8. Limitation on Liens.
Neither the Company nor the Partnership will, nor will any
Subsidiary be permitted to, create, incur, assume or suffer to
exist any Liens upon any of their respective assets, except for
the Lien of the Mortgage Documents and Permitted Liens.
Section 10.9. Limitation on Restricted Payments.
(a) Neither the Company nor the Partnership will, nor will
any Subsidiary be permitted to, directly or indirectly:
(i) declare or pay any dividend or make any
distribution on the Company's Capital Stock or the
Partnership's Equity Interests, as the case may be (other
than dividends or distributions payable in the Company's
Qualified Capital Stock or the Partnership's Qualified Equity
Interests or in options, warrants or other rights to purchase
such Qualified Capital Stock or Qualified Equity Interests);
(ii) purchase, redeem or otherwise acquire or retire
for value any such Capital Stock or Equity Interests, or any
options, warrants or other rights to acquire such Capital
Stock or Equity Interests;
(84)
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(iii) make any principal payment on or redeem,
repurchase, defease or otherwise acquire or retire for value
prior to any scheduled principal payment, scheduled sinking
fund payment or maturity, any Pari Passu Indebtedness (other
than Permitted Indebtedness) or Subordinated Indebtedness
(other than pursuant to clause (a)(3) below) of the
Partnership or make any cash interest payment with respect to
the PIK Notes or the Subordinated Partnership Note; or
(iv) incur, create, assume or suffer to exist any
guarantee (other than guarantees existing on the date of this
Indenture and any renewals, extensions, substitutions,
refinancings or replacements of such guarantees) of
Indebtedness of any Affiliate of the Partnership or the
Company;
(the foregoing actions set forth in clauses (i) through (iv) being
referred to as "Restricted Payments"), except that the Partnership
may apply up to 50% of its Excess Available Cash to make a
Restricted Payment if: at the time of such Restricted Payment and
after giving effect thereto, (1) no Default or Event of Default
shall have occurred and be continuing; (2) the Partnership's
Consolidated Fixed Charge Coverage Ratio for the four full fiscal
quarters immediately preceding the Restricted Payment, taken as
one period (after giving pro forma effect to the Restricted
Payment and (if applicable) the application of the net proceeds
therefrom and any events set forth in clauses (a)(ii) and (a)(iii)
under Section 10.7) would have been at least equal to 1.75 to 1;
and (3) prior to making such Restricted Payment, the Company or
the Partnership shall have used an amount equal to such Restricted
Payment to purchase either Mortgage Notes or PIK Notes on the open
market or pursuant to a tender offer.
(b) Notwithstanding the foregoing, and so long as there is
no Default or Event of Default continuing, the foregoing
provisions will not prohibit:
(i) payments made pursuant to the terms of the Services
Agreement as in effect on the date hereof;
(ii) distributions on the Trump Priority Interest to
the extent permitted under the Partnership Agreement as in
effect on the date hereof;
(iii) payment of an annual bonus to Donald J. Trump
that has been approved by a majority of the Noteholder
Representatives;
(iv) dividend payments within 60 days after declaration
if such payments would comply with the foregoing provision;
(85)
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(v) the repurchase, redemption or other acquisition or
retirement of any shares of any class of Capital Stock of the
Company or Equity Interest of the Partnership in exchange for
(including any such exchange pursuant to the exercise of a
conversion right or privilege in connection with which cash
is paid in lieu of the issuance of fractional shares,
interests or scrip), or out of the Net Cash Proceeds of a
substantially concurrent issue and sale (other than to a
Subsidiary) of, other shares of Capital Stock of the Company
or Equity Interests of the Partnership, as the case may be
(other than Redeemable Capital Stock or Redeemable Equity
Interests, as the case may be);
(vi) (I) the redemption, repayment, defeasance,
repurchase or other acquisition or retirement for value of
any Subordinated Indebtedness or Pari Passu Indebtedness of
the Partnership or the Company (other than Redeemable Equity
Interests) in exchange for or out of the net cash proceeds of
a substantially concurrent issue and sale of (A) new
Indebtedness of the Partnership or the Company or (B) Equity
Interests of the Partnership (other than Redeemable Equity
Interests) or Capital Stock of the Company (other than
Redeemable Capital Stock), provided that, with respect to
clause (A), (1) the aggregate principal amount of any such
new Indebtedness does not exceed the aggregate principal
amount of such Subordinated or Pari Passu Indebtedness (or,
if such Subordinated or Pari Passu Indebtedness provides for
an amount less than the principal amount thereof to be due
and payable upon a declaration of acceleration thereof, then
such lesser amount as of the date of determination) plus
accrued interest thereon plus the amount of any premium or
other payment required to be paid under the terms of the
instrument governing such Subordinated or Pari Passu
Indebtedness or the amount of any premium reasonably
determined by the Partnership as necessary to accomplish such
refinancing by means of a tender offer or privately
negotiated purchase and, in each case, actually paid, plus
the amount of expenses of the Partnership incurred in
connection with such refinancing, (2) if the Indebtedness so
redeemed, repaid, defeased, repurchased, acquired or retired
is Subordinated Indebtedness, any such new Indebtedness (x)
(86)
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has an Average Life to Stated Maturity that exceeds the
Average Life to Stated Maturity of the Mortgage Notes and a
Stated Maturity for its final scheduled principal payment
that is not earlier than the final Stated Maturity of the
Mortgage Notes and (y) is expressly subordinated in right of
payment to the Guarantee at least to the same extent as the
Subordinated Indebtedness to be redeemed, repaid, defeased,
repurchased, acquired or retired and (3) if the Indebtedness
so redeemed, repaid, defeased, repurchased, acquired or
retired is Pari Passu Indebtedness, any such new Indebtedness
has an Average Life to Stated Maturity that is not less than
the Average Life to Stated Maturity of such Indebtedness and
a Stated Maturity that is not earlier than the final Stated
Maturity of such Indebtedness; or (II) the redemption,
repayment, defeasance, repurchase or other acquisition or
retirement for value of any Redeemable Equity Interests of
the Partnership through the issuance of new shares of
Redeemable Equity Interests of the Partnership, provided that
any such new Redeemable Equity Interests (1) do not have a
maturity or are otherwise redeemable at the option of the
holder prior to the Stated Maturity of the Mortgage Notes and
(2) are expressly subordinated in right of payment to the
Guarantee at least to the same extent as Redeemable Equity
Interests to be redeemed, substituted, repurchased or
otherwise acquired or retired for value;
(vii) the redemption of any share of any class of
Capital Stock of the Company or any Equity Interest of the
Partnership or Indebtedness of the Partnership or the
Company, if (A) the holder thereof delivers an Opinion of
Counsel to the Trustee that failure to so redeem would
subject the holder thereof to an adverse action by a Gaming
Authority (or, if applicable, a failure to act by a Gaming
Authority that is adverse to the holder) and (B) the Board of
the Partnership determines (as evidenced by a Board
Resolution delivered to the Trustee) that such adverse action
(or, if applicable, such failure to act) would be likely to
have a material adverse effect on such holder;
(viii) (A) distributions or intercompany loans of up to
50% of the Partnership's Excess Available Cash to the Company
by the Partnership to purchase, redeem or otherwise acquire
Outstanding PIK Notes in accordance with the terms thereof,
provided that the Partnership's Consolidated Fixed Charge
Coverage Ratio for the four full fiscal quarters immediately
preceding the Restricted Payment, taken as one period (after
giving pro forma effect to the Restricted Payment and (if
applicable) the application of the net proceeds therefrom and
any events set forth in clauses (a)(ii) and (a)(iii) of
Section 10.7 above) would have been at least equal to 1.50 to
1, (B) distributions or intercompany loans to the Company by
the Partnership to pay interest in cash on the Outstanding
PIK Notes in accordance with the terms thereof, provided that
the condition described in clause (a) in Section 10.7 is at
that time satisfied, and (C) distributions or intercompany
loans to the Company by the Partnership to pay any tax
liability of the Company resulting from any distribution or
intercompany loan made in compliance with (A) or (B) above;
(ix) distributions or intercompany loans by the
Partnership, pursuant to the Partnership Agreement as in
effect on the date of this Indenture, to pay (a) reasonable
general and administrative expenses, including directors'
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fees and premiums for directors' and officers' liability
insurance of any corporate partners and (b) to make
indemnification payments as required by the Certificate of
Incorporation of TC/GP, Inc. or the Company or the
Partnership Agreement, each as in effect on the date hereof
and (c) to make distributions by the Partnership, pursuant to
the Partnership Agreement, to Partners in amounts in respect
of any tax year of the Partnership which do not exceed the
partners' tax liability in respect of the Partnership's
income for such year computed as if the Partners were each
taxpayers deriving items of income, gain, loss or deduction
only from the Partnership for such year and by applying the
sum of the higher of (x) the highest federal income tax rate
imposed on individuals for such year or (y) the highest
federal income tax rate imposed on corporations for such
year, plus (z) in either case, eight percent (8%) as the rate
applicable to such year's results;
(x) guarantees by the Partnership of Indebtedness of
any special purpose financing Affiliate of the Partnership,
if the incurrence of such guarantee is made in accordance
with Section 10.7 hereof and the net proceeds of any such
Indebtedness are provided to the Partnership;
(xi) distribution by the Partnership to Trump of the
Common Stock of TC/GP as contemplated in the Prospectus; and
(xii) the purchase, redemption or other acquisition of
securities representing an aggregate of 0.5% common equity
interest in the Partnership pursuant to the terms of the
Litigation Warrants and any distribution or advance by the
Partnership to TC/GP, Inc., as the survivor of the merger of
Trump's Castle Holding, Inc. with TC/GP, Inc., to fund the
payment of statutory appraisal rights perfected in connection
with such merger.
Section 10.10. Limitation on Partnership Leases.
The Partnership will not, and will not permit any of the
Subsidiaries to, lease as tenant or subtenant real or personal
property (except Permitted Leases), unless the Partnership's
Consolidated Fixed Charge Coverage Ratio for the four full fiscal
quarters immediately preceding such event, taken as one period
(and after giving pro forma effect to any such lease as if such
lease was entered into at the beginning of such four-quarter
period and any events set forth in clauses (a)(ii) and (a)(iii) of
Section 10.7), would have been at least equal to the ratios set
forth below for any such four-quarter period ending during the
fiscal years indicated below:
Fiscal Year Ratio
1993 and 1994 1.50 to 1
1995 and thereafter 1.75 to 1.
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In giving effect to the lease as of such four full fiscal
quarters, it will be assumed that the rent for such prior four
fiscal quarters was the greater of the (i) average rent over the
term of such lease and (ii) rent payable for the first four fiscal
quarters.
Section 10.11. Limitation on Preferred Stock of Subsidiaries
and Subsidiary Distributions.
(a) The Partnership will not permit any of the Subsidiaries
to, directly or indirectly, issue or sell any Preferred Stock
(except to the Partnership or a Wholly-owned Subsidiary thereof).
(b) The Partnership will not permit any of the Subsidiaries
to, directly or indirectly, (i) declare or pay any dividend or
make any distribution on the Capital Stock of such Subsidiary or
to the holders of such Subsidiary's Capital Stock (other than
dividends or distributions payable in Capital Stock of such
Subsidiary) or (ii) purchase, redeem or otherwise acquire or
retire for value any such Capital Stock; provided that this
covenant shall not prevent the payment by any Subsidiary of
dividends or other distributions to the Partnership or a
Wholly-owned Subsidiary or the redemption or repurchase by any
Subsidiary of any of its Capital Stock owned by the Partnership or
a Wholly-owned Subsidiary.
Section 10.12. Limitation on Payment Restrictions Affecting
Subsidiaries.
The Partnership will not, nor will any of the Subsidiaries be
permitted to, create or otherwise cause or suffer to exist or
become effective any consensual encumbrance or restriction of any
kind on the ability of the Partnership or such Subsidiary to (a)
pay dividends or make any other distributions on the Partnership's
Equity Interests or such Subsidiary's Capital Stock or pay any
Indebtedness owed to the Partnership or any other Subsidiary, (b)
make any loans or advances to the Partnership or any other
Subsidiary or (c) transfer any of its property or assets to the
Partnership or any other Wholly-owned Subsidiary, except (i) any
restrictions, with respect to a Subsidiary that is not a
Subsidiary on the date of this Indenture, in existence at the time
such Person becomes a Subsidiary of the Partnership (but not
created in contemplation of such Person becoming a Subsidiary),
(ii) any restrictions with respect to a Subsidiary imposed
pursuant to an agreement which has been entered into for the sale
or disposition of all or substantially all of the Capital Stock or
assets of such Subsidiary, (iii) any encumbrance or restriction
pursuant to an agreement in effect at or entered into on the date
of this Indenture, and (iv) any restrictions existing under any
agreement which refinances or replaces the agreements containing
the restrictions in clauses (i), (ii) and (iii), provided that the
terms and conditions of any such agreement are no less favorable
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to holders of the Mortgage Notes than those under or pursuant to
the agreement evidencing the Indebtedness refinanced.
Section 10.13. Purchase of Mortgage Notes upon Change of
Control.
(a) If a Change of Control shall occur at any time, then
each Holder shall have the right to require that the Company or
the Partnership repurchase such Holder's Mortgage Notes in whole
or in part in integral multiples of $10, at a purchase price (the
"Change of Control Purchase Price") in cash in an amount equal to
101% of the principal amount thereof, plus accrued and unpaid
interest (including any Defaulted Interest), if any, to the date
of purchase, pursuant to the offer described in the following
paragraph (the "Change of Control Offer") and the other procedures
set forth in this Section.
(b) Within 30 days following any Change of Control, the
Company or the Partnership shall send by first-class mail, postage
prepaid, to the Trustee and to each Holder, at his address
appearing in the Mortgage Note Register, a notice stating:
(1) that a Change of Control has occurred and that such
Holder has the right to require the Company or the
Partnership to repurchase such Holder's Mortgage Notes at the
Change of Control Purchase Price;
(2) the circumstances and relevant facts regarding such
Change of Control (including but not limited to information
with respect to pro forma historical income, cash flow and
capitalization after giving effect to such Change of
Control);
(3) the purchase date (the "Change of Control Purchase
Date") which shall be a Business Day no earlier than 45 days
nor later than 60 days from the date such notice is mailed
(subject to applicable law);
(4) the Change of Control Purchase Price;
(5) that any Mortgage Note not tendered will continue
to accrue interest;
(6) that, unless the Company or the Partnership
defaults in payment of the Change of Control Purchase Price,
any Mortgage Notes accepted for payment pursuant to the
Change of Control Offer shall cease to accrue interest after
the Change of Control Purchase Date; and
(7) the instructions such Holder must follow in order
to have its Mortgage Notes repurchased (and the instructions
it must follow to withdraw its election to have such Mortgage
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Notes repurchased) in accordance with paragraph (c) of this
Section.
Notwithstanding the foregoing, within 20 days following any Change
of Control, the Company shall notify the Trustee that a Change of
Control has occurred.
(c) Holders electing to have Mortgage Notes purchased will
be required to surrender such Mortgage Notes to the Paying Agent
at the address specified in the notice at least two Business Days
prior to the Change of Control Purchase Date. Subject to
applicable law, Holders will be entitled to withdraw their
election if the Paying Agent receives, not later than two Business
Days prior to the Change of Control Purchase Date, a telegram,
telex, facsimile transmission or letter setting forth the name of
the Holder, the principal amount and serial numbers of the
Mortgage Notes delivered for purchase by the Holder as to which
its election is to be withdrawn and a statement that such Holder
is withdrawing his election to have such Mortgage Notes purchased.
Holders whose Mortgage Notes are purchased only in part will be
issued new Mortgage Notes equal in principal amount to the
unpurchased portion of the Mortgage Notes surrendered.
(d) Not later than the Change of Control Purchase Date, the
Company or the Partnership, as the case may be, shall (i) accept
for payment Mortgage Notes or portions thereof tendered pursuant
to the Change of Control Offer, (ii) deposit with the Paying Agent
money sufficient, in immediately available funds by 12:00 noon
(New York City Time), to pay the purchase price of all Mortgage
Notes or portions thereof so tendered and (iii) deliver to the
Paying Agent an Officers' Certificate stating the Mortgage Notes
or portions thereof accepted for payment by the Company or the
Partnership. The Paying Agent shall promptly mail or release to
Holders of Mortgage Notes so accepted payment in an amount equal
to the Change of Control Purchase Price of the Mortgage Notes
purchased from each such Holder, and the Company shall execute and
the Trustee shall promptly authenticate and mail or release to
such Holders a new Mortgage Note equal in principal amount to any
unpurchased portion of the Mortgage Note surrendered. The Company
or the Partnership, as the case may be, will publicly announce the
results of the Change of Control Offer on the Change of Control
Purchase Date. For purposes of this Section 10.13, the Company
shall choose a Paying Agent which shall not be the Company or the
Partnership.
(e) The Company and the Partnership will not, and will not
permit any Subsidiary to, create or permit to exist or become
effective any restriction (other than restrictions existing under
Indebtedness as in effect on the date of this Indenture) that
would materially impair the ability of the Company or the
Partnership to make a Change of Control Offer to purchase the
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Mortgage Notes or, if such Change of Control offer is made, to pay
for the Mortgage Notes tendered for purchase.
Section 10.14. Limitations on Transactions with Affiliates.
Neither the Company nor the Partnership will, nor will any of
the Subsidiaries be permitted to, directly or indirectly, enter
into or suffer to exist any transaction or series of related
transactions (including, without limitation, the sale, purchase,
exchange or lease of assets, property or services) with any
Affiliate of the Company or the Partnership (other than a
Wholly-owned Subsidiary) unless (a) such transaction or series of
related transactions is on terms that are no less favorable to the
Company, the Partnership or such Subsidiary, as the case may be,
than would be available at the time of such transaction or
transactions in a comparable transaction in arm's-length dealings
with an unaffiliated third party and with respect to a transaction
or series of related transactions involving aggregate payments
equal to or greater than $5,000,000, such transaction or series of
related transactions is approved by a majority of the Noteholder
Representatives and (b) the Company or the Partnership, as the
case may be, delivers an Officers' Certificate to the Trustee
certifying that such transaction or transactions comply with
clause (a) above. The foregoing restriction will not apply to (1)
the operations under the Services Agreement as in effect on the
date of this Indenture, (2) the payment of compensation to the
senior executive officers of the Partnership (excluding Donald J.
Trump) which has been approved by a majority of the Noteholder
Representatives, (3) the payment of an annual bonus to Donald J.
Trump which has been approved by a majority of the Bondholder
Representatives, (4) the payment of director fees (other than to
Donald J. Trump) not in excess of those in effect as of the date
of this Indenture, (5) payments made pursuant to the Partnership
Agreement as in effect on the date of this Indenture, (6) payments
pursuant to the Senior Partnership Note, the Partnership Note or
the Subordinated Partnership Note, and (7) Restricted Payments
otherwise permitted by the provisions of Section 10.9.
Section 10.15. Restriction on Transfer of Assets.
The Partnership will not sell, convey, transfer, lease or
otherwise dispose of its assets or property to any of the
Subsidiaries.
Section 10.16. Limitation on Activities and Investments.
Neither the Partnership nor any of the Subsidiaries will
engage in any business or investment activities other than those
necessary or appropriate for, incident to, in connection with or
arising out of, developing, financing, owning and operating the
Casino-Hotel.
(92)
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<PAGE>
The Partnership will not, and will not permit any Subsidiary
to, make any investment other than a Permitted Investment.
The Company will not conduct any business (including having
any subsidiary) whatsoever, other than (i) to collect the amounts
due and owing under the Senior Partnership Note, the Partnership
Note and the Subordinated Partnership Note, (ii) to preserve its
rights under the Senior Partnership Note, the Partnership Note and
the Subordinated Partnership Note and (iii) to do or cause to be
done all things necessary or appropriate to protect the property
included in the Liens of the Senior Note Documents, the Mortgage
Documents and the Pledge Agreement and any further security and to
preserve its rights therein and otherwise to comply with its
obligations under the Senior Note Indenture, the Senior Notes,
this Indenture, the Mortgage Notes, the PIK Note Indenture and the
PIK Notes.
The Company will not incur or otherwise become liable for any
Indebtedness (other than (v) Indebtedness with respect to the
Midlantic Term Loan, (w) the Senior Notes and any renewal,
extension, substitution, refunding, refinancings or replacement
thereof in accordance with the Senior Note Indenture, (x) the
Mortgage Notes and any renewal, extension, substitution,
refunding, refinancing or replacement thereof in accordance with
this Indenture, (y) the PIK Notes including any PIK Notes issued
as payment of interest, and any renewal, extension, substitution,
refunding, refinancing or replacement thereof in accordance with
the PIK Note Indenture, and (z) any intercompany loan from the
Partnership) nor issue any Preferred Stock.
Section 10.17. Restriction on Payment of Services Fee.
The Company and the Partnership will not, and will not permit
the Subsidiaries to, pay any Services Fee under the Services
Agreement or to pay or reimburse any expenses relating thereto if
a Default or Event of Default has occurred and is continuing. The
terms of the Services Agreement cannot be amended to increase the
amounts to be paid thereunder in the aggregate or on any
particular date, or in any other manner which would be adverse to
the Partnership, and the Partnership will not, and will not permit
the Subsidiaries to, enter into any management or consulting
agreement with any Affiliate relating to the Casino Hotel other
than the Services Agreement.
Section 10.18. Provision of Financial Statements.
Whether or not the Company or the Partnership is subject to
Section 13(a) or 15(d) of the Exchange Act, the Company and the
Partnership will, to the extent permitted under the Exchange Act,
file with the SEC the annual reports, quarterly reports and other
documents which the Company or the Partnership would have been
required to file with the SEC pursuant to such Section 13(a) or
15(d) if the Company or the Partnership were so subject, such<PAGE>
(93)
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documents to be filed with the SEC on or prior to the respective
dates (the "Required Filing Dates") by which the Company or the
Partnership would have been required so to file such documents if
the Company or the Partnership were so subject. The Company or
the Partnership will also in any event (x) within 15 days of each
Required Filing Date (i) transmit by mail to all Holders, as their
names and addresses appear in the Mortgage Note Register, without
cost to such Holders and (ii) file with the Trustee copies of the
annual reports, quarterly reports and other documents which the
Company or the Partnership would have been required to file with
the SEC pursuant to Section 13(a) or 15(d) of the Exchange Act if
the Company or the Partnership were subject to such Sections and
(y) if filing such documents by the Company or the Partnership
with the SEC is not permitted under the Exchange Act, promptly
upon written request, supply copies of such documents to a
prospective holder of the Mortgage Notes at the Company's cost.
Section 10.19. Statement by Officers as to Default.
(a) The Company will deliver to the Trustee, on or before a
date not more than 60 days after the end of each fiscal quarter
and not more than 120 days after the end of each fiscal year of
the Company ending after the date hereof, a written statement
signed by the President or a Vice President, and by the Treasurer,
an Assistant Treasurer, the Comptroller, an Assistant Comptroller,
the Secretary or an Assistant Secretary of the Company, and in any
event at least one person signing such certificate shall be the
principal executive officer, principal financial officer or
principal accounting officer of the Company, setting forth the
Consolidated Net Worth of the Partnership as of the end of such
fiscal quarter and stating whether or not, after a review under
each signer's supervision of the activities of the Company during
such year and of the Company's performance under this Indenture,
to the best knowledge, based on such review, of the signers
thereof, the Company has fulfilled all its obligations under this
Indenture throughout such year, and, if there has been a Default
specifying each Default and the nature and status thereof.
(b) When any Default or Event of Default has occurred and is
continuing, or if the Trustee or any Holder or the trustee for or
the holder of any other evidence of Indebtedness of the Company,
the Partnership or any Subsidiary gives any notice or takes any
other action with respect to a claimed default (other than with
respect to Indebtedness (other than any Mortgage Debt) in the
principal amount of less than $10,000,000), the Company shall
deliver to the Trustee by registered or certified mail or by
telegram, telex or facsimile transmission followed by hard copy an
Officers' Certificate specifying such event, notice or other
action within five Business Days of its occurrence.
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Section 10.20. Waiver of Certain Covenants.
The Company and the Partnership may omit in any particular
instance to comply with any covenant or condition set forth in
Sections 8.1(a)(ii) and (iii)(B) or Sections 10.5 through 10.12,
Sections 10.14, 10.15, 10.17, 10.19 and 10.21, if, before or after
the time for such compliance, the Holders of not less than a
majority in aggregate principal amount of the then Outstanding
Mortgage Notes shall, by Act of such Holders, waive such
compliance in such instance with such covenant or condition, but
no such waiver shall extend to or affect such covenant or
condition except to the extent so expressly waived, and, until
such waiver shall become effective, the obligations of the Company
and the Partnership and the duties of the Trustee in respect of
any such covenant or condition shall remain in full force and
effect.
Section 10.21. Redemption of Certain Gaming Chips.
Neither the Partnership nor the Company shall redeem any of
the casino table games gaming chips issued to Fred C. Trump in the
amount of $3,500,000 in December, 1990 (of which $2,500,000
remains outstanding on the date hereof), except as provided below
in this Section 10.21:
(a) so long as there shall exist no Event of Default
under Sections 5.01(a), 5.01(b) or 5.01(c), the Partnership
or the Company may redeem up to an aggregate of $1,000,000 of
such chips during the last four calendar months of 1993;
(b) so long as there shall exist no such Event of
Default, the Partnership or the Company may redeem all such
chips at any time after the Issuer shall have achieved EBITDA
for any period of four consecutive fiscal quarters in an
amount not less than $45,000,000; and
(c) so long as there shall exist no Event of Default,
the Partnership or the Company may redeem all such chips at
any time if approved by unanimous written consent of the
Noteholder Representatives.
Such redemptions shall be made without interest.
(95)
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ARTICLE ELEVEN
REDEMPTION OF MORTGAGE NOTES
Section 11.1. Right of Redemption.
The Mortgage Notes may be redeemed at the election of the
Company or the Partnership, as a whole or from time to time in
part, at any time on or after December 31, 1998 at the option of
the Company or the Partnership subject to the conditions and at
the Redemption Prices specified in the form of Mortgage Note,
together with accrued and unpaid interest (including Defaulted
Interest) to the Redemption Date.
Section 11.2. Applicability of Article.
Redemption of Mortgage Notes at the election of the Company
or the Partnership or in the event of a Total Taking or Casualty
or otherwise, as permitted or required by any provision of this
Indenture, shall be made in accordance with such provision and
this Article.
Section 11.3. Election to Redeem; Notice to Trustee.
The election of the Company or Partnership to redeem any
Mortgage Notes pursuant to Section 11.1 shall be evidenced by a
Board Resolution and an Officers' Certificate of the Company. In
case of any redemption at the election of the Company or
Partnership or in accordance with Section 11.10 hereof, the
Company or Partnership, as the case may be, shall, at least 30
days prior to the Redemption Date fixed by the Company or
Partnership (unless a shorter notice period shall be satisfactory
to the Trustee), notify the Trustee in writing of such Redemption
Date and of the principal amount of Mortgage Notes to be redeemed.
Section 11.4. Selection by Trustee of Mortgage Notes to Be
Redeemed.
If less than all the Mortgage Notes are to be redeemed, the
particular Mortgage Notes or portions thereof to be redeemed shall
be selected not more than 60 days prior to the Redemption Date by
the Trustee, from the Outstanding Mortgage Notes not previously
called for redemption pro rata or by lot, and the amounts to be
redeemed may be equal to $10 or any integral multiple thereof.
The Trustee shall promptly notify the Company, the
Partnership and the Mortgage Note Registrar in writing of the
Mortgage Notes selected for redemption and, in the case of any
Mortgage Notes selected for partial redemption, the principal
amount thereof to be redeemed.
(96)
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For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to redemption of
Mortgage Notes shall relate, in the case of any Mortgage Note
redeemed or to be redeemed only in part, to the portion of the
principal amount of such Mortgage Note which has been or is to be
redeemed.
Section 11.5. Notice of Redemption.
Notice of redemption shall be given by first-class mail,
postage prepaid, mailed not less than 30 nor more than 60 days
prior to the Redemption Date, to each Holder of Mortgage Notes to
be redeemed, at his address appearing in the Mortgage Note
Register.
All notices of redemption shall state:
(a) the Redemption Date;
(b) the Redemption Price;
(c) if less than all outstanding Mortgage Notes are to be
redeemed, the identification of the particular Mortgage Notes to
be redeemed;
(d) in the case of a Mortgage Note to be redeemed in part,
the principal amount of such Mortgage Note to be redeemed and that
after the Redemption Date upon surrender of such Mortgage Note,
new Mortgage Note or Mortgage Notes in the aggregate principal
amount equal to the unredeemed portion thereof will be issued;
(e) that Mortgage Notes called for redemption must be
surrendered to the Paying Agent to collect payment of the
Redemption Price;
(f) that on the Redemption Date the Redemption Price will
become due and payable upon each such Mortgage Note or portion
thereof, and that (unless the Company or the Partnership shall
default in payment of the Redemption Price) interest thereon shall
cease to accrue on and after said date;
(g) the place or places where such Mortgage Notes are to be
surrendered for payment of the Redemption Price;
(h) the CUSIP number, if any, relating to such Mortgage
Notes; and
(i) if applicable, that such redemption is a result of a
Total Taking or Casualty.
Notice of redemption of Mortgage Notes to be redeemed at the
election of the Company or the Partnership shall be given by the
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Company or, at the Company's written request, by the Trustee in
the name and at the expense of the Company.
The notice if mailed in the manner herein provided shall be
conclusively presumed to have been given, whether or not the
Holder receives such notice. In any case, failure to give such
notice by mail or any defect in the notice to the Holder of any
Mortgage Note designated for redemption as a whole or in part
shall not affect the validity of the proceedings for the
redemption of any other Mortgage Note.
Section 11.6. Deposit of Redemption Price.
On or prior to any Redemption Date, the Company or the
Partnership, as the case may be, shall deposit with the Trustee or
with a Paying Agent (or, if the Company or the Partnership is
acting as its own Paying Agent, segregate and hold in trust as
provided in Section 10.3) an amount of money in same day funds
sufficient to pay the Redemption Price of, and (except if the
Redemption Date shall be an Interest Payment Date) accrued
interest on, all the Mortgage Notes or portions thereof which are
to be redeemed on that date.
Section 11.7. Mortgage Notes Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the
Mortgage Notes so to be redeemed shall, on the Redemption Date,
become due and payable at the Redemption Price therein specified
and from and after such date (unless the Company or the
Partnership shall default in the payment of the Redemption Price
and accrued interest) such Mortgage Notes shall cease to bear
interest. Upon surrender of any such Mortgage Note for redemption
in accordance with said notice, such Mortgage Note shall be paid
by the Company or the Partnership, as the case may be, at the
Redemption Price together with accrued and unpaid interest
(including Defaulted Interest) to the Redemption Date; provided,
however, that installments of interest whose Stated Maturity is on
or prior to the Redemption Date shall be payable to the Holders of
such Mortgage Notes, or one or more Predecessor Mortgage Notes,
registered as such on the relevant Regular Record Dates according
to the terms and the provisions of Section 3.7.
If any Mortgage Note called for redemption shall not be so
paid upon surrender thereof for redemption, the principal and
premium, if any, shall, until paid, bear interest from the
Redemption Date at the rate borne by such Mortgage Note.
Section 11.8. Mortgage Notes Redeemed in Part.
Any Mortgage Note which is to be redeemed only in part shall
be surrendered to the Paying Agent at the office or agency
maintained for such purpose pursuant to Section 10.2 (with, if the
(98)
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Company, the Partnership, the Mortgage Note Registrar or the
Trustee so requires, due endorsement by, or a written instrument
of transfer in form satisfactory to the Company, the Partnership,
the Mortgage Note Registrar or the Trustee duly executed by, the
Holder thereof or such Holder's attorney duly authorized in
writing), and the Company shall execute, and the Trustee shall
authenticate and deliver to the Holder of such Mortgage Note
without service charge, a new Mortgage Note or Mortgage Notes, of
any authorized denomination as requested by such Holder in
aggregate principal amount equal to, and in exchange for, the
unredeemed portion of the principal of the Mortgage Note so
surrendered that is not redeemed.
Section 11.9. Mortgage Notes Redeemed Pursuant to Casino
Control Act.
Notwithstanding the provisions of this Article Eleven, if the
CCC does not waive the qualification requirements as to any Holder
(whether the record owner or beneficial owner) and requires that
such Holder be qualified under the New Jersey Casino Control Act,
then, in such event, such Holder must qualify under such Act. If
such Holder does not so qualify, such Holder must dispose of its
interest in the Mortgage Notes, within 30 days after the
Partnership's receipt of notice of such finding (or within such
earlier date as the CCC may require), or the Company or the
Partnership may redeem such Mortgage Notes at the lower of the
Outstanding Amount and the Fair Market Value (as certified to the
Trustee) of such Mortgage Notes.
Section 11.10. Mortgage Notes Redeemed Pursuant to a Total
Taking or Casualty.
In the event of a Total Taking or Casualty, the Company or
the Partnership shall, subject to the rights of holders of Senior
Indebtedness, within 60 days after receipt of any condemnation or
insurance proceeds, but within one year after the occurrence of
such Total Taking or Casualty, redeem the Mortgage Notes at 100%
of the principal amount thereof, in each case, together with
accrued and unpaid interest through the Redemption Date, in
accordance with this Article Eleven.
ARTICLE TWELVE
MORTGAGE DOCUMENTS
Section 12.1. Mortgage Documents.
(a) In order to secure the due and punctual payment of the
Indenture Obligations, the Company, the Partnership and the
Trustee have entered into or will enter into, as the case may be,
the Mortgage Documents to create the security interests thereunder
(99)
<PAGE>
and for related matters. The Company and the Partnership covenant
and agree that they have full right, power and lawful authority to
grant, bargain, sell, release, convey, hypothecate, assign,
mortgage, pledge, transfer, confirm and grant a security interest
in the property constituting the Collateral, in the manner and
form done in the Mortgage Documents or intended to be done, and
that (a) each will forever warrant and defend the title to the
same against the claims of all Persons whatsoever in each case
free and clear of all Liens whatsoever, except Permitted Liens,
(b) each will execute, acknowledge and deliver to the Trustee such
further assignments, transfers, assurances or other instruments as
the Trustee may reasonably require or request, and (c) each will
do or cause to be done all such acts and things as may be
necessary or proper, or as may be reasonably required by the
Trustee, to assure and confirm to the Trustee its interest in the
Collateral, or any part thereof, as from time to time constituted,
and the right, title and interest in and to the Mortgage Documents
so as to render the same available for the security and benefit of
this Indenture and of the Mortgage Notes.
(b) Each Holder, by accepting a Mortgage Note, consents and
agrees to all of the terms and provisions of the Mortgage
Documents, as the same may be amended from time to time pursuant
to the provisions of the Mortgage Documents and this Indenture,
and authorizes and directs the Trustee to enter into each of the
Mortgage Documents to which it is a party and to perform its
obligations and exercise its rights thereunder in accordance
therewith; provided, however, that if any provision of the
Mortgage Documents limits, qualifies, or conflicts with the duties
imposed by the provisions of the Trust Indenture Act, the Trust
Indenture Act controls.
(c) As amongst the Holders, the Collateral as now or
hereafter constituted shall be held for the equal and ratable
benefit of the Holders without preference, priority or distinction
of any thereof over any other by reason of difference in time of
issuance, sale or otherwise, as security for the Indenture
Obligations.
Section 12.2. Recording, Opinion of Counsel, Etc.
The Company and the Partnership will cause, at their own
expense, this Indenture, the Mortgage Notes, the Mortgage
Documents, and all amendments or supplements thereto, to be
registered, recorded and filed and/or re-recorded and/or re-filed
and/or renewed in such manner and in such place or places, if any,
as may be required by law in order fully to preserve and protect
the Liens of the Mortgage Documents and all parts of the
Collateral and to effectuate and preserve the security of the
Holders and all rights of the Trustee.
The Company and the Partnership shall furnish to the Trustee:
(100)
<PAGE>
(a) promptly after the execution and delivery of this
Indenture and each of the Mortgage Documents or other instrument
of further assurance, an Opinion of Counsel stating that, in the
opinion of such Counsel, the Mortgage Documents and other
instruments of further assurance have been properly recorded,
endorsed, registered and filed, so as to make effective the Lien
intended to be created thereby, and reciting the details of such
action or stating that, in the opinion of such Counsel, no such
action is necessary to make such Liens effective; and
(b) within 60 days after November 30 in each year beginning
with the year 1994, an Opinion of Counsel, dated as of such date,
either stating that, in the opinion of such Counsel, such action
has been taken with respect to the recording, registering, filing,
re-recording, re-registering and re-filing of this Indenture and
the Mortgage Documents, financing statements, supplemental
indentures, continuation statements or other instruments of
further assurance as is necessary to maintain the Lien of the
Mortgage Documents and reciting the details of such action, or
stating that, in the opinion of counsel, no such action prior to
November 30 of the subsequent year is necessary to maintain such
Lien.
The Trustee shall hold in its possession the Mortgage
Documents, except as it from time to time may be required for
actions, suits or proceedings relating to the Mortgage Documents
or for the purpose of enforcing or realizing upon any right or
value thereby represented. The Trustee may, from time to time, in
its sole discretion, for the purpose of convenient location of the
Mortgage Documents, appoint one or more agents to hold physical
custody, for the account of the Trustee, of the Mortgage
Documents.
Section 12.3. Release of Collateral.
To the extent applicable, the Company, the Partnership and
each other obligor on the Mortgage Notes shall cause ss 314(d) of
the Trust Indenture Act relating to the release of property or
securities from the Liens of the Mortgage Documents to be complied
with.
Section 12.4. Trust Indenture Act Requirements.
The release of any Collateral from the terms of any of the
Mortgage Documents or the release, in whole or in part, of the
Liens created by any of the Mortgage Documents, will not be deemed
to impair the security interests thereunder in contravention of
the provisions of this Indenture if and to the extent the
Collateral or Liens are released pursuant to, and in accordance
with, the applicable Mortgage Documents and pursuant to, and in
accordance with, the terms hereof. As set forth in Section 12.3,
(101)
<PAGE>
to the extent applicable, without limitation, the Company, the
Partnership and each other obligor on the Mortgage Notes shall
cause ss 314(d) of the Trust Indenture Act relating to the release
of property or securities from the Liens of the Mortgage Documents
to be complied with. Any certificate or opinion required by
ss 314(d) of the Trust Indenture Act may be made by two officers
of the company, except in cases which ss 314(d) of the Trust
Indenture Act requires that such certificate or opinion be made by
an independent Person.
Section 12.5. Disposition of Certain Collateral without
Requesting Release.
(a) Notwithstanding the provisions of Sections 12.3 and 12.4
hereof, the Partnership may, pursuant to and in accordance with
the Mortgage Documents and this Indenture, without requesting the
release or consent of the Trustee:
(i) sell or dispose of, free from the Lien of the
Mortgage Documents, any Tangible Personal Property which, in
its reasonable opinion, may have become obsolete or unfit for
use or which is no longer necessary in the conduct of its
businesses or the operation of the Collateral or the disposal
of cash free from the Lien of the Mortgage Documents in the
ordinary course of business;
(ii) alter, repair, replace, change the location or
position of and add to any Tangible Personal Property;
(iii) renew, extend, surrender, terminate, modify or
amend any leases of Tangible Personal Property, when, in its
reasonable opinion, it is prudent to do so; and
(iv) enter into all non-material title encumbrances
described within the definition of "Permitted Encumbrances"
under the Note Mortgage, and including without limitation
those transactions described in Section 5.3 of the Note
Mortgage.
(b) Notwithstanding the provisions of Subsection (a) above,
(x) the Partnership shall not dispose of or transfer (by lease,
assignment, sale or otherwise), or pledge, mortgage or otherwise
encumber (other than Permitted Liens), Collateral pursuant to the
provisions of Section 12.5(a) with a fair value to the obligor
equal to 10% or more of the aggregate fair value of all Collateral
then existing (as determined in the good faith judgment of the
Company or the Partnership and, if required by the Trust Indenture
Act, an independent appraiser), in any transaction or any series
of related transactions without complying with Sections 12.3 and
12.4; and (y) the right of the Partnership to rely upon the
provisions of Section 12.5(a) from the date of this Indenture to
December 31, 1993 and for each semiannual period thereafter shall
(102)
<PAGE>
be conditioned upon the Partnership delivering to the Trustee, on
or before February 28, 1994 and thereafter within 60 days
following each February 28 and August 31, an Officers' Certificate
to the effect that all of such dispositions by the Partnership
during such semiannual period (other than those such dispositions,
collections or payments wherein the Partnership has complied with
Sections 12.3 and 12.4) were in the ordinary course of the
Partnership's business and that the proceeds therefrom were used
by the Partnership in connection with its business.
(c) Any disposition of Collateral made in compliance with
the provisions of this Section 12.5 shall be deemed not to impair
the Liens of the Mortgage Documents in contravention of the
provisions of this Indenture.
(d) Upon receipt of a Company Request, the Trustee shall
execute and deliver, within five business days from the receipt of
the Company Request, any instrument deemed by the Partnership to
be necessary or appropriate to dispose of portions of the
Collateral pursuant to this Section 12.5 if the provisions of this
Section 12.5 have been complied with.
Section 12.6. Suits to Protect the Collateral.
Subject to the provisions of the Mortgage Documents, (i) the
Trustee may, in its sole discretion and without the consent of the
Holders, take all actions it deems necessary or appropriate in
order to (a) enforce any of the terms of the Mortgage Documents
and (b) collect and receive any and all amounts payable in respect
of the obligations of the Company and the Partnership and (ii) the
Trustee shall have power to institute and to maintain such suits
and proceedings as it may deem expedient to prevent any impairment
of the Collateral by any acts which may be unlawful or in
violation of any of the Mortgage Documents or this Indenture,
including such suits and proceedings as the Trustee may deem
expedient to preserve or protect its interests and the interests
of the Holders in the Collateral and in the principal, interest,
issues, profits, rents, revenues and other income arising
therefrom (including power to institute and maintain suits or
proceedings to restrain the enforcement of or compliance with any
legislative or other governmental enactment, rule or order that
may be unconstitutional or otherwise invalid if the enforcement
of, or compliance with, such enactment, rule or order would impair
the security interests or be prejudicial to the interests of the
Holders or the Trustee).
Section 12.7. Determinations Relating to Collateral.
In the event (i) the Trustee shall receive any written
request from the Company or the Partnership under any Mortgage
Document for consent or approval with respect to any matter or
thing relating to any Collateral or the Company's or the
(103)
<PAGE>
Partnership's obligations with respect thereto or (ii) there shall
be due to or from the Trustee under the provisions of any Mortgage
Document any material performance or the delivery of any material
instrument or (iii) the Trustee shall become aware of any
nonperformance by the Company or the Partnership of any covenant
or any breach of any representation or warranty of the Company or
the Partnership set forth in any Mortgage Document, then, in each
such event, the Trustee shall be entitled to hire experts,
consultants, agents and attorneys to advise the Trustee on the
manner in which the Trustee should respond to such request or
render any requested performance or respond to such nonperformance
or breach. The Trustee shall be fully protected in the taking of
any action recommended or approved by any such expert, consultant,
agent or attorney or agreed to by the Holders of a majority in
principal amount of the Outstanding Mortgage Notes pursuant to
Section 5.12.
Section 12.8. Impairment of Security Interest.
The Partnership and the Company will not, and will not permit
any Subsidiary to, take or omit to take any action which
reasonably might or would have the result of affecting or
impairing the security interests with respect to the Collateral in
contravention of this Indenture, and the Company and the
Partnership shall not (and shall cause the Subsidiaries not to)
grant to, or suffer to exist in favor of, any Person any interest
whatsoever in the Collateral except as permitted by the Mortgage
Documents or this Indenture. The Partnership and the Company will
not, and will not permit any Subsidiary to, enter into any
agreement or instrument that by its terms expressly requires that
the proceeds received from the sale of any Collateral be applied
to repay, redeem or otherwise retire any Indebtedness of any
Person other than as set forth in this Article Twelve and in the
Mortgage Documents.
Section 12.9. Release Upon Termination of the Company's
Obligations.
(a) In the event that the Company delivers an Officers'
Certificate certifying that all of the Indenture Obligations have
been indefeasibly satisfied and discharged by complying with the
provisions of Article Thirteen or Sections 4.2 or 4.3, the Trustee
shall deliver to the Company at the Company's expense a notice
stating that, subject to Section 4.6, the Trustee, on behalf of
the Holders, disclaims and gives up any and all rights it has in
or to the Collateral, and any rights it has under the Mortgage
Documents, and on demand of and at the expense of the Company or
the Partnership, the Trustee shall also execute and deliver proper
instruments acknowledging the satisfaction and discharge of this
Indenture and all Mortgage Documents and, upon and after the
receipt by the Company of such notice, the Trustee shall not be
deemed to hold the security interests in the Collateral for the
(104)
<PAGE>
benefit of the Holders and shall deliver to the Company any
Collateral in its possession.
(b) Any release of any portion of the Collateral made
strictly in compliance with the provisions of this Section 12.9
shall not be deemed to impair the security interests in the
Collateral created by the Mortgage Documents in contravention of
the provisions of this Indenture.
Section 12.10. Authorization of Receipt of Funds by the
Trustee Under the Mortgage Documents.
The Trustee is authorized to receive any funds for the
benefit of Holders of Mortgage Notes distributed under the
Mortgage Documents, and to make further distributions of such
funds to the Holders according to the provisions of this
Indenture.
ARTICLE THIRTEEN
SATISFACTION AND DISCHARGE
Section 13.1. Satisfaction and Discharge of Indenture.
This Indenture shall cease to be of further effect (except as
to surviving rights of registration of transfer or exchange of
Mortgage Notes herein expressly provided for) and the Trustee, on
demand of and at the expense of the Company or the Partnership,
shall execute and deliver proper instruments acknowledging
satisfaction and discharge of this Indenture and all Mortgage
Documents, when
(a) either
(1) all Mortgage Notes theretofore authenticated and
delivered (other than (i) Mortgage Notes which have been
destroyed, lost or stolen and which have been replaced or
paid as provided in Section 3.6 and (ii) Mortgage Notes for
whose payment funds have theretofore been deposited in trust
or segregated and held in trust by the Company and thereafter
repaid to the Company or discharged from such trust, as
provided in Section 10.3) have been delivered to the Trustee
for cancellation; or
(2) all such Mortgage Notes not theretofore delivered
to the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated
Maturity within one year, or
(105)
<PAGE>
(iii) are to be called for redemption within one
year under arrangements satisfactory to the Trustee for
the giving of notice of redemption by the Trustee in the
name, and at the expense, of the Company and the
Partnership,
and the Company or the Partnership, in the case of subclause
(2)(i), (ii) or (iii) above, has irrevocably deposited or
caused to be deposited with the Trustee as trust funds in
trust an amount in cash in lawful currency of the United
States of America or U.S. Government Obligations sufficient
to pay and discharge the entire Indebtedness on such Mortgage
Notes not theretofore delivered to the Trustee for
cancellation, including principal of, premium, if any, and
accrued interest on such Mortgage Notes, at such Stated
Maturity or Redemption Date;
(b) the Company and the Partnership have paid or caused to
be paid all other sums payable hereunder by the Company or the
Partnership; and
(c) the Company and the Partnership have delivered to the
Trustee an Officers' Certificate and an opinion of Counsel each
stating that (i) all conditions precedent herein provided for
relating to the satisfaction and discharge of this Indenture have
been complied with and (ii) such satisfaction and discharge will
not result in a breach or violation of, or constitute a default
under, this Indenture or any other material agreement or
instrument to which the Company or the Partnership is a party or
by which either the Company or the Partnership is bound.
Notwithstanding the satisfaction and discharge of this Indenture,
the obligations of the Company and the Partnership to the Trustee
under Section 6.6 and, if money shall have been deposited with the
Trustee pursuant to subclause (2) of Subsection (a) of this
Section, the obligations of the Trustee under Section 4.2 and the
last paragraph of Section 10.3 shall survive.
Section 13.2. Application of Trust Money.
Subject to the provisions of the last paragraph of Section
10.3, all funds deposited with the Trustee pursuant to Section
13.1 shall be held in trust and applied by it, in accordance with
the provisions of the Mortgage Notes and this Indenture, to the
payment, either directly or through any Paying Agent (including
the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal of,
premium, if any, and interest on the Mortgage Notes for whose
payment such funds have been deposited with the Trustee.
(106)
<PAGE>
ARTICLE FOURTEEN
GUARANTEE
Section 14.1. Partnership Guarantee.
For value received, the Partnership in accordance with this
Article Fourteen and, subject to Section 3.11 hereof, hereby
absolutely, unconditionally and irrevocably guarantees to the
Trustee and the Holders, as if the Partnership were the principal
debtor, the punctual payment and performance when due of all
Indenture Obligations (which for purposes of this Guarantee shall
also be deemed to include all commissions, fees, charges, costs
and other expenses (including reasonable legal fees and
disbursements of one counsel) arising out of or incurred by the
Trustee or the Holders in connection with the enforcement of this
Guarantee).
Section 14.2. Continuing Guarantee; No Right of Set-Off;
Independent Obligation.
(a) This Guarantee shall be a continuing guarantee of the
payment and performance of all Indenture Obligations and shall
remain in full force and effect until the payment in full of all
of the Indenture Obligations and shall apply to and secure any
ultimate balance due or remaining unpaid to the Trustee or the
Holders; and this Guarantee shall not be considered as wholly or
partially satisfied by the payment or liquidation at any time or
from time to time of any sum of money for the time being due or
remaining unpaid to the Trustee or the Holders. The Partnership
covenants and agrees to comply with all obligations, covenants,
agreements and provisions applicable to it in this Indenture
including those set forth in Article Eight. Without limiting the
generality of the foregoing, the Partnership's liability shall
extend to all amounts which constitute part of the Indenture
Obligations and would be owed by the Company under this Indenture
and the Mortgage Notes but for the fact that they are
unenforceable, reduced, limited, impaired, suspended or not
allowable due to the existence of a bankruptcy, reorganization or
similar proceeding involving the Company.
(b) The Partnership hereby guarantees that the Indenture
Obligations will be paid to the Trustee without set-off or
counterclaim or other reduction whatsoever (whether for taxes,
withholding or otherwise) in lawful currency of the United States
of America.
(c) The Partnership guarantees that the Indenture
obligations shall be paid strictly in accordance with their terms
regardless of any law, regulation or order now or hereafter in
effect in any jurisdiction affecting any of such terms or the
rights of the Holders of the Mortgage Notes.
(107)
<PAGE>
(d) The Partnership's liability to pay or perform or cause
the performance of the Indenture Obligations under this Guarantee
shall arise forthwith after demand for payment or performance by
the Trustee has been given to the Partnership in the manner
prescribed in Section 1.6 hereof.
(e) Except as provided herein, the provisions of this
Article Fourteen cover all agreements between the parties hereto
relative to this Guarantee and none of the parties shall be bound
by any representation, warranty or promise made by any Person
relative thereto which is not embodied herein; and it is
specifically acknowledged and agreed that this Guarantee has been
delivered by the Partnership free of any conditions whatsoever and
that no representations, warranties or promises have been made to
the Partnership affecting its liabilities hereunder, and that the
Trustee shall not be bound by any representations, warranties or
promises now or at any time hereafter made by the Company to the
Partnership.
Section 14.3. Guarantee Absolute.
The obligations of the Partnership hereunder are independent
of the obligations of the Company under the Mortgage Notes and
this Indenture and a separate action or actions may be brought and
prosecuted against the Partnership whether or not an action or
proceeding is brought against the Company and whether or not the
Company is joined in any such action or proceeding. The liability
of the Partnership hereunder is irrevocable, absolute and
unconditional and (to the extent permitted by law) the liability
and obligations of the Partnership hereunder shall not be
released, discharged, mitigated, waived, impaired or affected in
whole or in part by:
(a) any defect or lack of validity or enforceability in
respect of any indebtedness or other obligation of the
Company or any other Person under this Indenture or the
Mortgage Notes, or any agreement or instrument relating
to any of the foregoing;
(b) any grants of time, renewals, extensions, indulgences,
releases, discharges or modifications which the Trustee
or the Holders may extend to, or make with, the Company,
the Partnership or any other Person, or any change in
the time, manner or place of payment of, or in any other
term of, all or any of the Indenture Obligations, or any
other amendment or waiver of, or any consent to or
departure from, this Indenture or the Mortgage Notes,
including any increase or decrease in the Indenture
Obligations;
(108)
<PAGE>
(c) the taking of security from the Company, the Partnership
or any other Person, and the release, discharge or
alteration of, or other dealing with, such security;
(d) the occurrence of any change in the laws, rules,
regulations or ordinances of any jurisdiction by any
present or future action of any governmental authority
or court amending, varying, reducing or otherwise
affecting, or purporting to amend, vary, reduce or
otherwise affect, any of the Indenture Obligations and
the obligations of the Partnership hereunder;
(e) the abstention from taking security from the Company,
the Partnership or any other Person or from perfecting,
continuing to keep perfected or taking advantage of any
Lien of the Note Mortgage;
(f) any loss, diminution of value or lack of enforceability
of any Mortgage Note received from the Company, the
Partnership or any other Person, and including any other
guarantees received by the Trustee;
(g) any other dealings with the Company, the Partnership or
any other Person, or with any Mortgage Note;
(h) the Trustee's or the Holder's acceptance of compositions
from the Company or the Partnership;
(i) the application by the Holders or the Trustee of all
monies at any time and from time to time received from
the Company, the Partnership or any other Person on
account of any indebtedness and liabilities owing by the
Company or the Partnership to the Trustee or the
Holders, in such manner as the Trustee or the Holders
deems best and the changing of such application in whole
or in part and at any time or from time to time, or any
manner of application of collateral, or proceeds
thereof, to all or any of the Indenture Obligations, or
the manner of sale of any Collateral;
(j) the release or discharge of the Company or the
Partnership or of any other guarantor of the Mortgage
Notes or of any Person liable directly as surety or
otherwise by operation of law or otherwise for the
Mortgage Notes, other than an express release in writing
given by the Trustee, on behalf of the Holders, of the
liability and obligations of the Partnership hereunder;
(k) any change in the name, business, capital structure or
governing instrument of the Company or the Partnership
or any refinancing or restructuring of any of the
Indenture Obligations;
(109)
<PAGE>
(l) the sale of the Company's or the Partnership's business
or any part thereof;
(m) any merger or consolidation, arrangement or
reorganization of the Company, the Partnership, any
Person resulting from the merger or consolidation of the
Company or the Partnership with any other Person or any
other successor to such Person or merged or consolidated
Person or any other change in the corporate existence,
structure or ownership of the Company or the
Partnership;
(n) the insolvency, bankruptcy, liquidation, winding-up,
dissolution, receivership or distribution of the assets
of the Company or its assets or any resulting discharge
of any obligations of the Company (whether voluntary or
involuntary) or of the Partnership of the loss of
corporate existence;
(o) any arrangement or plan of reorganization affecting the
Company or the Partnership;
(p) any other circumstance (including any statute of
limitations) that might otherwise constitute a defense
available to, or discharge of, the Company or the
Partnership; or
(q) any modification, compromise, settlement or release by
the Trustee, or by operation of law or otherwise, of the
Indenture Obligations or the liability of the Company or
any other obligor under the Mortgage Notes, or of any
Collateral, in whole or in part, and any refusal of
payment by the Trustee, in whole or in part, from any
other obligor or other guarantor in connection with any
of the Indenture obligations, whether or not with notice
to, or further assent by, or any reservation of rights
against, the Partnership.
Section 14.4. Right to Demand Full Performance.
In the event of any demand for payment or performance by the
Trustee from the Partnership hereunder, the Trustee or the Holders
shall have the right to demand its full claim and to receive all
dividends or other payments in respect thereof until the Indenture
Obligations have been paid in full, and the Partnership shall
continue to be liable hereunder for any balance which may be owing
to the Trustee or the Holders by the Company under this Indenture
and the Mortgage Notes. The retention by the Trustee or the
Holders of any Mortgage Note, prior to the realization by the
Trustee or the Holders of its rights to such Mortgage Note upon
foreclosure thereon, shall not, as between the Trustee and the
(110)
<PAGE>
Partnership, be considered as a purchase of such Mortgage Note, or
as payment, satisfaction or reduction of the Indenture Obligations
due to the Trustee or the Holders by the Company or any part
thereof.
Section 14.5. Waivers.
(a) The Partnership hereby expressly waives (to the extent
permitted by law) notice of the acceptance of this Guarantee and
notice of the existence, renewal, extension or the
non-performance, non-payment, or non-observance on the part of the
Company of any of the terms, covenants, conditions and provisions
of this Indenture or the Mortgage Notes or any other notice
whatsoever to or upon the Company or the Partnership with respect
to the Indenture Obligations. The Partnership hereby acknowledges
communication to it of the terms of this Indenture and the
Mortgage Notes and all of the provisions therein contained and
consents to and approves the same. The Partnership hereby
expressly waives (to the extent permitted by law) diligence,
presentment, protest and demand for payment.
(b) Without prejudice to any of the rights or recourses
which the Trustee or the Holders may have against the Company, the
Partnership hereby expressly waives (to the extent permitted by
law) any right to require the Trustee or the Holders to:
(i) initiate or exhaust any rights, remedies or
recourse against the Company, the Partnership
or any other Person;
(ii) value, realize upon, or dispose of any
Mortgage Note of the Company or any other
Person held by the Trustee or the Holders; or
(iii) initiate or exhaust any other remedy which the
Trustee or the Holders may have in law or
equity;
before requiring or becoming entitled to demand payment from the
Partnership under this Guarantee.
Section 14.6. The Partnership Remains Obligated in Event the
Company Is No Longer Obligated to Discharge Indenture Obligations.
It is the express intention of the Trustee and the
Partnership that if for any reason the Company has no legal
existence, is or becomes under no legal obligation to discharge
the Indenture Obligations owing to the Trustee or the Holders by
the Company or if any of the Indenture obligations owing by the
Company to the Trustee or the Holders becomes irrevocable from the
Company by operation of law or for any reason whatsoever, this
Guarantee and the covenants, agreements and obligations of the
(111)
<PAGE>
Partnership contained in this Article Fourteen shall nevertheless
be binding upon the Partnership, as principal debtor, until such
time as all such Indenture Obligations have been paid in full to
the Trustee and all Indenture Obligations owing to the Trustee or
the Holders by the Company have been discharged, or such earlier
time as Section 4.2 shall apply to the Mortgage Notes and the
Partnership shall be responsible for the payment thereof to the
Trustee or the Holders upon demand.
Section 14.7. Waiver of Rights.
The Partnership agrees (to the extent permitted by law) that
it hereby waives and will not in any manner whatsoever claim or
take the benefit or advantage of, any rights of reimbursement,
exoneration, contribution, indemnity or subrogation (whether
contractual, under Section 509 of Title Eleven of the United
States Code, under common law or otherwise) or any similar rights
or "claims" (as such term is defined under Title Eleven of the
United States Code), against the Company or any Subsidiary arising
from the existence of, or performance by, the Partnership under
this Guarantee.
Section 14.8. Guarantee Is in Addition to Other Security.
This Guarantee shall be in addition to and not in
substitution for any other guarantees or other security which the
Trustee may now or hereafter hold in respect of the Indenture
Obligations owing to the Trustee or the Holders by the Company and
(except as may be required by law) the Trustee shall be under no
obligation to marshal in favor of the Partnership any other
guarantees or other security or any moneys or other assets which
the Trustee may be entitled to receive or upon which the Trustee
or the Holders may have a claim.
Section 14.9. Release of Security Interests.
Without limiting the generality of the foregoing and except
as otherwise provided in this Indenture, the Partnership hereby
consents and agrees, to the fullest extent permitted by applicable
law, that the rights of the Trustee hereunder, and the liability
of the Partnership hereunder, shall not be affected by any and all
releases for any purpose of any Collateral, if any, from the Liens
and security interests created by any Mortgage Documents and that
this Guarantee shall continue to be effective or be reinstated, as
the case may be, if at any time any payment of any of the
Indenture Obligations is rescinded or must otherwise be returned
by the Trustee upon the insolvency, bankruptcy or reorganization
of the Company or otherwise, all as though such payment had not
been made.
(112)
<PAGE>
Section 14.10. No Bar to Further Actions.
Except as provided by law, no action or proceeding brought or
instituted under Article Fourteen and this Guarantee and no
recovery or judgment in pursuance thereof shall be a bar or
defense (other than a defense of payment) to any further action or
proceeding which may be brought under Article Fourteen and this
Guarantee by reason of any further default or defaults under
Article Fourteen and this Guarantee or in the payment of any of
the Indenture Obligations owing by the Company.
Section 14.11. Failure to Exercise Rights Shall Not Operate
As a Waiver; No Suspension of Remedies.
(a) No failure to exercise and no delay in exercising, on
the part of the Trustee or the Holders, any right, power,
privilege or remedy under this Article Fourteen and this Guarantee
shall operate as a waiver thereof, nor any single or partial
exercise of any right, power, privilege or remedy preclude any
other or further exercise thereof, or the exercise of any other
rights, powers, privileges or remedies. The rights and remedies
herein provided for are cumulative and not exclusive of any rights
or remedies provided in law or equity.
(b) Nothing contained in this Article Fourteen shall limit
the right of the Trustee or the Holders to take any action to
accelerate the maturity of the Mortgage Notes pursuant to Article
Five or to pursue any rights or remedies hereunder or under
applicable law.
Section 14.12. Successors and Assigns.
All terms, agreements and conditions of this Article Fourteen
shall extend to and be binding upon the Partnership and its
successors and permitted assigns and shall enure to the benefit of
and may be enforced by the Trustee and its successors and assigns;
provided, however, that the Partnership may not assign any of its
rights or obligations hereunder other than in accordance with
Article Eight.
Section 14.13. Release of Guarantee.
Concurrently with the payment in full of all of the Indenture
Obligations, the Partnership shall be released from and relieved
of its obligations under this Article Fourteen. Upon the delivery
by the Company to the Trustee of an Officers' Certificate and, if
requested by the Trustee, an Opinion of Counsel to the effect that
the transaction giving rise to the release of this Guarantee was
made by the Company in accordance with the provisions of this
Indenture and the Mortgage Notes, the Trustee shall execute any
documents reasonably required in order to evidence the release of
the Partnership from its obligations under this Guarantee and the
(113)
<PAGE>
Mortgage Documents. If any of the Indenture Obligations are
revived and reinstated after the termination of this Guarantee,
then all of the obligations of the Partnership under this
Guarantee shall be revived and reinstated as if this Guarantee had
not been terminated until such time as the Indenture Obligations
are paid in full, and the Partnership shall enter into an
amendment to this Guarantee, reasonably satisfactory to the
Trustee, evidencing such revival and reinstatement.
This Guarantee shall terminate upon a merger or consolidation
of the Partnership with the Company, in accordance with Article
Eight.
Section 14.14. Execution of Guarantee.
To evidence the Guarantee, the Partnership hereby agrees to
execute a guarantee substantially in the form set forth in Section
2.5, to be endorsed on each Mortgage Note authenticated and
delivered by the Trustee and that this Indenture shall be executed
on behalf of the Partnership by one of its general partners or of
its Vice Presidents. The signature of any of these officers on
the Mortgage Notes may be manual or facsimile.
If an officer whose signature is on this Indenture no longer
holds that office at the time the Trustee authenticates a Mortgage
Note on which this Guarantee is endorsed, such Guarantee shall be
valid nevertheless.
ARTICLE FIFTEEN
HOLDERS' MEETINGS
Section 15.1. Holders' Meetings Called by Trustee.
The Trustee may at any time call a meeting of Holders to take
any action authorized to be taken by or behalf of the Holders of
any specified percentage in aggregate principal amount of the
Mortgage Notes under any provision of this Indenture or under
applicable law, to be held at such time and at such place in the
City of New York, or such other place as the Trustee shall
determine. Published Notice of every meeting of Holders, setting
forth the time and the place of such meeting and in general terms
the action proposed to be taken at such meeting, shall be given in
each city in which the principal of any of the Mortgage Notes,
shall be payable, or, if all the Mortgage Notes Outstanding shall
be registered Mortgage Notes, such notice shall be sufficiently
given if mailed first class, postage prepaid, and certified or
registered if the Company so elects, to each registered Holder of
the Mortgage Notes at the last address of such Holder appearing on
the Mortgage Note Register, such publication or mailing, as the
case may be, to be made not less than 30 nor more than 180 days
prior to the date fixed for the meeting.
(114)
<PAGE>
Section 15.2. Holders' Meetings Called by the Company or
Holders.
In case at any time the Company by a Board Resolution, or the
Holders of at least 10% in aggregate principal amount of the
Mortgage Notes affected by the business to be submitted to the
meeting at the time outstanding, shall, by written request setting
forth in reasonable detail the action proposed to be taken at the
meeting, have requested the Trustee to call a meeting of the
Holders to take any action authorized to be taken hereunder and
the Trustee shall not have made the first publication or a mailing
of the notice of such meeting within 20 days after receipt of such
request, then the Company or the Holders in the amount specified
may determine the time and place in the City of New York, or such
other place for such meeting and may call such meeting by
publishing or mailing notice thereof as provided in Section 15.1.
Section 15.3. Attendance and Voting.
To be entitled to vote at any meeting of Holders a person
must (a) be a registered Holder of one or more Mortgage Notes or
(b) be a person appointed by an instrument in writing as proxy by
a Holder of one or more Mortgage Notes. The only persons who
shall be entitled to be present or to speak at any meeting of
Holders shall be the persons entitled to vote at such meeting and
their counsel, representatives of the Trustee and its counsel and
representatives of the Company or the Partnership and their
counsel.
Section 15.4. Conduct of Meetings; Adjournment.
Notwithstanding any other provisions of this Indenture, the
Trustee may make such reasonable regulations as it may deem
advisable for any meeting of Holders in regard to the appointment
and duties of inspectors of votes, the submission and examination
of proxies, certificates and other evidence of the right to vote,
and such other matters concerning the conduct of the meeting as it
shall think fit.
The Trustee shall, by an instrument in writing, appoint a
temporary chairman of the meeting, unless the meeting shall have
been called by the Company or by Holders as provided in Section
15.2, in which case the Company or the Holders calling the
meeting, as the case may be, shall in like manner appoint a
temporary chairman. A permanent chairman and a permanent
secretary of the meeting shall be elected by vote of the Holders
of a majority in principal amount of the Mortgage Notes
represented at the meeting and entitled to vote.
At any meeting each Holder or proxy shall be entitled to one
vote for each $1,000 principal amount of Mortgage Notes held or
(115)
<PAGE>
represented by him; provided, however, that no vote shall be cast
or counted at any meeting in respect of any Mortgage Note ruled by
the chairman of the meeting to be not Outstanding. The chairman
of the meeting shall have no right to vote other than by virtue of
Mortgage Notes held by him or instruments in writing as aforesaid
duly designating him as the person to vote on behalf of other
Holders. Any meeting of Holders duly called pursuant to the
provisions of Section 15.1 or 15.2 may be adjourned from time to
time by the Holders of a majority in principal amount of the
Mortgage Notes represented at the meeting and entitled to vote
whether or not a quorum is present, and the meeting may be held as
so adjourned without further notice.
At any meeting of Holders, the presence of persons holding or
representing Mortgage Notes in an aggregate principal amount
sufficient to take action on the business for the transaction of
which such meeting was called shall constitute a quorum.
Section 15.5. Manner of Voting.
The vote upon any resolution submitted to any meeting of
Holders shall be by written ballots on which shall be subscribed
the signatures of the Holder or proxies and the serial numbers of
the Mortgage Notes held or represented by them. The permanent
chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any
resolution and who shall make and file with the secretary of the
meeting their verified written reports in duplicate of all votes
cast at the meeting. A record in duplicate of the proceedings of
each meeting of Holders shall be prepared by the secretary of the
meeting and there shall be attached to said record of the original
reports of the inspectors of votes on any vote by ballot taken
thereat and affidavits by one or more persons having knowledge of
the facts setting forth a copy of the notice of the meeting and
showing that said notice was published or mailed as provided in
section 15.1. The record shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting
and one of the duplicates shall be delivered to the Company and
the other to the Trustee to be preserved by the Trustee, the
latter to have attached thereto or be accompanied by the ballots
voted at the meeting.
Any record so signed and verified shall be conclusive
evidence of the matters therein stated.
* * * * * *
(116)
<PAGE>
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, and their respective corporate
seals to be hereunto affixed and attested, all as of the day and
year first above written.
TRUMP'S CASTLE FUNDING, INC.,
as Issuer
By _________________________
Title
Attest: ____________________
Title:
TRUMP'S CASTLE ASSOCIATES,
as Guarantor
By _________________________
General Partner
Attest: ____________________
Title:
FIRST BANK NATIONAL ASSOCIATION,
as Trustee
By _________________________
Title:
(117)
<PAGE>
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the ______ day of December, 1993, before me personally
came _______________________, to me known, who, being by me duly
sworn, did depose and say that he resides at
; that he is
________________ of Trump's Castle Funding, Inc., one of the
corporations described in and which executed the above instrument;
that he knows the corporate seal of such corporation; that the
seal affixed to said instrument is such corporate seal; that it
was so affixed pursuant to authority of the Board of Directors of
such corporation; and that he signed his name thereto pursuant to
like authority.
(NOTARIAL SEAL)
______________________________
(118)
<PAGE>
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the ______ day of December, 1993, before me personally
came _____________________, to me known, who, being by me duly
sworn, did depose and say that he resides at
; that he
is the managing general partner of Trump's Castle Associates, the
partnership described in and which executed the above instrument;
that he knows the seal of the partnership; that the seal affixed
to said instrument is such seal; that it was so affixed pursuant
to authority of the board of directors of the managing general
partner of such partnership; and that he signed his name thereto
pursuant to like authority.
(NOTARIAL SEAL)
______________________________
(119)
<PAGE>
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the ______ day of December, 1993, before me personally
came Leslie P. Frank III, to me known, who, being by me duly
sworn, did depose and say that he is an Assistant Vice President
of First Bank National Association, one of the corporations
described in and which executed the above instrument; that he
knows the corporate seal of such corporation; that the seal
affixed to said instrument is such corporate seal; that it was so
affixed pursuant to authority of the board of directors of such
corporation; and that he signed his name thereto pursuant to like
authority.
(NOTARIAL SEAL)
______________________________
(120)
<PAGE>
Exhibit B to
Mortgage Note Indenture
INDENTURE OF MORTGAGE AND SECURITY AGREEMENT
(Note Mortgage)
TRUMP'S CASTLE ASSOCIATES,
Mortgagor/Debtor
and
TRUMP'S CASTLE FUNDING, INC.,
Mortgagee/Secured Party
Dated as of December 28, 1993
Record and Return to:
Robert L. Nutt, Esq.
Ropes & Gray
One International Place
Boston, Massachusetts 02110-2624
PAGE
<PAGE>
TABLE OF CONTENTS
ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF
GENERAL APPLICATION. . . . . . . . . . . . 9
Section 1.1. Definitions. . . . . . . . . . . . . . . . 9
Section 1.2. Notices. . . . . . . . . . . . . . . . . . 19
Section 1.3. Form and Contents of Documents Delivered
to Mortgagee.. . . . . . . . . . . . . . . 20
Section 1.4. Compliance Certificates and Opinions.. . . 21
Section 1.5. Effect of Headings and Table of
Contents.. . . . . . . . . . . . . . . . . 21
Section 1.6. Successors and Assigns; Amendments.. . . . 22
Section 1.7. Separability Clause. . . . . . . . . . . . 22
Section 1.8. Benefits of Mortgage.. . . . . . . . . . . 22
Section 1.9. Governing Law. . . . . . . . . . . . . . . 22
Section 1.10. Limitation on Liability. . . . . . . . . . 22
Section 1.11. Provisions Required by Trust Indenture.. . 23
Section 1.12. References to Mortgagee and/or to
Trustee; Rights of Trustee.. . . . . . . . 23
Section 1.13. Mortgage Subject to Casino Control Act.. . 25
Section 1.14. Discharge of Lien. . . . . . . . . . . . . 25
Section 1.15. General Application. . . . . . . . . . . . 26
Section 1.16. Mortgage Deemed to be Security
Agreement. . . . . . . . . . . . . . . . . 26
Section 1.17. No Duplication of Notices or Payments. . . 26
ARTICLE TWO RELEASE; SUBORDINATION . . . . . . . . . . 27
Section 2.1. Possession by Mortgagor. . . . . . . . . . 27
Section 2.2. Obsolete Property. . . . . . . . . . . . . 27
Section 2.3. F,F&E Financing Agreements.. . . . . . . . 28
ARTICLE THREE REMEDIES . . . . . . . . . . . . . . . . . 29
Section 3.1. Events of Default. . . . . . . . . . . . . 29
Section 3.2. Acceleration of Maturity; Recision and
Annulment. . . . . . . . . . . . . . . . . 31
Section 3.3. Application of Moneys Received by
Mortgagee. . . . . . . . . . . . . . . . . 31
Section 3.4. Restoration of Rights and Remedies.. . . . 31
Section 3.5. Rights and Remedies Cumulative.. . . . . . 31
Section 3.6. Delay or Omission Not Waiver.. . . . . . . 32
Section 3.7. Undertaking for Costs. . . . . . . . . . . 32
Section 3.8. Waiver of Appraisement and Other Laws. . . 32
Section 3.9. Entry. . . . . . . . . . . . . . . . . . . 33
Section 3.10. Power of Sale; Suits for Enforcement.. . . 33
Section 3.11. Incidents of Sale. . . . . . . . . . . . . 34
Section 3.12. Receiver.. . . . . . . . . . . . . . . . . 35
Section 3.13. Suits to Protect the Trust Estate. . . . . 35
Section 3.14. Management of the Premises.. . . . . . . . 35
(i)
<PAGE>
ARTICLE FOUR CONSOLIDATION, MERGER, CONVEYANCE,
TRANSFER OR LEASE. . . . . . . . . . . . . 36
Section 4.1. Consolidation, Merger, Conveyance or
Transfer only on Certain Terms.. . . . . . 36
Section 4.2. Successor Entity Substituted.. . . . . . . 36
ARTICLE FIVE COVENANTS AND REPRESENTATIONS OF
MORTGAGOR. . . . . . . . . . . . . . . . . 36
Section 5.1. Payment of Principal, Premium and
Interest.. . . . . . . . . . . . . . . . . 36
Section 5.2. F,F&E Financing Agreements.. . . . . . . . 36
Section 5.3. Limitations on Liens and Transfers.. . . . 37
Section 5.4. Environmental. . . . . . . . . . . . . . . 38
Section 5.5. Warranty of Leasehold Estate and Title . . 41
Section 5.6. After-Acquired Property; Further
Assurances; Recording. . . . . . . . . . . 43
Section 5.7. Payment of Taxes and Certain Claims;
Maintenance of Properties; Compliance
with Legal Requirements and Insurance
Requirements.. . . . . . . . . . . . . . . 44
Section 5.8. Permitted Contests . . . . . . . . . . . . 46
Section 5.9. Mechanics' and Other Liens.. . . . . . . . 47
Section 5.10. To Insure. . . . . . . . . . . . . . . . . 47
Section 5.11. Limitations on Building Demolition,
Alterations, Improvements and New
Construction.. . . . . . . . . . . . . . . 55
Section 5.12. Leases.. . . . . . . . . . . . . . . . . . 57
Section 5.13. Compliance Certificates. . . . . . . . . . 59
Section 5.14. To Keep Books; Inspection by Mortgagee . . 59
Section 5.15. Advances by Mortgagee. . . . . . . . . . . 60
Section 5.16. Waiver of Stay, Extension or Usury
Laws.. . . . . . . . . . . . . . . . . . . 60
Section 5.17. Eminent Domain.. . . . . . . . . . . . . . 60
Section 5.18. Facility Leases. . . . . . . . . . . . . . 62
Section 5.19. Superior Mortgages.. . . . . . . . . . . . 67
Section 5.20. Indemnification. . . . . . . . . . . . . . 68
SCHEDULE 1 OWNED LAND . . . . . . . . . . . . . . . 1-1
SCHEDULE 2 LEASED LAND. . . . . . . . . . . . . . . 2-1
SCHEDULE 3 EXISTING ENCUMBRANCES. . . . . . . . . . 3-1
SCHEDULE 4 FORM OF NON-DISTURBANCE AND ATTORNMENT
AGREEMENT. . . . . . . . . . . . . . . . 4-1
EXHIBIT A FORM OF TRUST INDENTURE
(ii)
<PAGE>
<PAGE>
INDENTURE OF MORTGAGE AND SECURITY AGREEMENT
INDENTURE OF MORTGAGE AND SECURITY AGREEMENT ("Mortgage"),
dated as of December 28_, 1993, between TRUMP'S CASTLE
ASSOCIATES, a New Jersey general partnership having an office at
Brigantine Boulevard and Huron Avenue, Atlantic City, New Jersey
08401 ("Mortgagor"), and TRUMP'S CASTLE FUNDING, INC., a New
Jersey corporation having an office at Brigantine Boulevard and
Huron Avenue, Atlantic City, New Jersey 08401 ("Mortgagee").
Witnesseth:
In consideration of $10.00 in hand paid by Mortgagee to
Mortgagor and for other good and valuable consideration, the
receipt and sufficiency whereof is hereby acknowledged, and in
order to secure (i) the payment of the principal amount (and
premium, if any) of the Note, in lawful money of the United
States, to be paid in accordance with the provisions thereof (and
of all modifications, extensions, and renewals of the Note), all
of which provisions are hereby made an integral part hereof as
though set forth at length herein; (ii) payment of interest
(including, without limitation, interest on all overdue principal
and premium, if any) becoming due under the provisions of the
Note; (iii) payment by Mortgagor to Mortgagee of all sums
expended or advanced by Mortgagee pursuant to any term or
provision of this Mortgage; (iv) performance of each covenant,
term, condition and agreement of Mortgagor herein or in the Note
contained; (v) all costs and expenses, including, without
limitation, reasonable counsel fees and expenses as provided in
Section 3.7 of this Mortgage, which may arise in respect of the
Note and this Mortgage or of the obligations secured hereby; and
(vi) performance and observance of all of the provisions herein
contained, Mortgagor has executed and delivered this Mortgage and
has bargained, sold, aliened, mortgaged, pledged, released,
conveyed and confirmed unto Mortgagee and its successors
hereunder and assigns forever, and does hereby grant to Mortgagee
and its successors a security interest in and to, all of
Mortgagor's right, title and interest in, to and under all of the
following described property and the proceeds thereof:
GRANTING CLAUSES
Granting Clause First
All of the property, rights, title, interest, privileges and
franchises particularly described in annexed Schedule 1 (the
"Owned Land"), which Schedule is hereby made a part of, and
(1)
<PAGE>
deemed to be described in, this Granting Clause as fully as if
set forth in this Granting Clause at length.
Granting Clause Second
[Intentionally omitted]
Granting Clause Third
All of the property, rights, title, interest, privileges and
franchises of Mortgagor as lessee under all Facility Leases
(including, to the extent permissible to the Landlord under the
Marina Lease, the Marina Lease), together with (i) all credits,
deposits, privileges and rights of Mortgagor as lessee under the
Facility Leases, now or at any time existing, (ii) the leaseholds
and the leasehold estates created by the Facility Leases and
(iii) all of the estates, rights, titles, claims or demands
whatsoever of Mortgagor, either in law or in equity, in
possession or in expectancy, of, in and to the Facility Leases
and the Leased Facilities (including, but not limited to, the
Leased Land particularly described in annexed Schedule 2),
together with (x) any and all other, further or additional title,
estates, interests or rights which may at any time be acquired by
Mortgagor in or to the Leased Facilities or any part thereof, and
Mortgagor expressly agrees that if Mortgagor shall, at any time
prior to payment in full of all indebtedness secured hereby,
acquire fee simple title or any other greater estate to the
Leased Facilities, the lien of this Mortgage shall attach, extend
to, cover and be a lien upon such fee simple title or other
greater estate and thereupon the lien of this Mortgage, subject
to Permitted Encumbrances, shall be prior to the lien of any
mortgage or deed of trust placed on such acquired title, estate,
interest or right subsequent to the date of this Mortgage and (y)
any right to possession or statutory term of years derived from,
or incident to, the Facility Leases pursuant to Section 365(h) of
the Code or any Comparable Provision.
Granting Clause Fourth
All of the rents, issues, profits, revenues, accounts,
accounts receivable and other income and proceeds (including,
without limitation, all rents, fees, charges, accounts, issues,
profits, revenues and payments for or from (a) the use or
occupancy of the rooms and other public facilities in the Hotel
and (b) the operation of the Casino) of the property subjected or
required to be subjected to the lien of this Mortgage, including,
without limitation, the property described in Granting Clauses
First, Third and Seventh (said property described in Granting
Clauses First, Third and Seventh and similar other property
subjected or required to be subjected to the lien of this
(2)
<PAGE>
Mortgage, together with all such rents, issues, profits,
revenues, accounts, accounts receivable and other income and
proceeds therefrom is hereinafter collectively referred to as the
"Premises") and all of the estate, right, title and interest of
every nature whatsoever of Mortgagor in and to the same and every
part thereof.
Granting Clause Fifth
All of the rights of Mortgagor as lessor under the Leases in
effect on the date of execution of this Mortgage or hereafter
entered into by Mortgagor, including modifications, extensions
and renewals of all of the same, and the immediate and continuing
right as security after the occurrence, and during the
continuance, of an Event of Default, to (a) make claim for,
collect, receive and receipt for (and to apply the same as
provided herein) any and all rents, fees, charges, income,
revenues, issues, profits, security and other sums of money
payable or receivable thereunder or pursuant thereto, and all
proceeds thereof, whether payable as rent, insurance proceeds,
condemnation awards, security or otherwise and whether payable
prior to or subsequent to the Stated Maturity of the Note, (b)
receive and give notices and consents thereunder, (c) bring
actions and proceedings thereunder or for the enforcement
thereof, (d) make waivers and agreements thereunder or with
respect thereto, (e) take such action upon the happening of a
default under any Lease, including the commencement, conduct and
consummation of any proceedings at law or in equity as shall be
permitted by any provision of any Lease, and (f) do any and all
things which Mortgagor or any lessor is or may become entitled to
do under the Leases; provided that, except as may be set forth to
the contrary herein, the assignment made by this Granting Clause
Fourth shall not impair or diminish any right, privilege or
obligation of Mortgagor under the Leases nor shall any such
obligation be imposed upon Mortgagee.
Granting Clause Sixth
Without limiting the generality of the provisions of
Granting Clause Fourth, all of Mortgagor's rights, title,
interest, privileges and franchises in and to the following, now
owned or hereafter acquired by Mortgagor, to the extent of
Mortgagor's interest therein and thereto and to the extent
assignable (collectively, "Operating Assets"):
(a) bookings for the use of guest rooms, banquet
facilities, meeting rooms at the Casino Hotel or at any other
improvements now or hereafter located on any of the Land;
(3)
<PAGE>
(b) all contracts respecting utility services for, and the
maintenance, operations, or equipping of, the Premises, including
guaranties and warranties relating thereto;
(c) the Permits;
(d) all contract rights, leases (whether with respect to
real property, personal property or both real and personal
property), concessions, trademarks, trade names, service marks,
logos, copyrights, warranties and other items of intangible
personal property, and any and all good will associated with the
same, relating to the ownership or operation of the Casino Hotel
or of any other improvements now or hereafter located on any of
the Land, including, without limitation, (1) employment contracts
with officers and other employees of Mortgagee, (2) telephone and
other communication numbers, (3) all software licensing
agreements as are required to operate computer software systems
at the Casino Hotel or at any other improvements now or hereafter
located on any of the Land and books and records relating to the
software programs and (4) lessee's interest under leases of
Tangible Personal Property;
(e) all contracts, purchase orders, requisitions and
agreements entered into by or on behalf of Mortgagor or which
have been assigned to Mortgagor, for the design, construction,
and furnishing of the Casino Hotel or of any other improvements
now or hereafter located on any of the Land, including, without
limitation, architect's agreements, engineering agreements,
construction contracts, consulting agreements and agreements or
purchase orders for all items of Tangible Personal Property and
payment and performance bonds in favor of Mortgagor in connection
with the Trust Estate (and all warranties and guarantees
thereunder and warranties and guarantees of any subcontractor and
bond issued in connection with the work to be performed by any
subcontractor);
(f) the following personal property (the "Tangible Personal
Property") now or hereafter acquired by Mortgagor (directly or by
way of lease) which is located on, or to be located on, or which
are in use or held in reserve storage for future use in
connection with the gaming or other operations of, the Casino
Hotel or of any other improvements now or hereafter located on
any of the Land, which is on hand or on order whether stored
on-site or off-site:
(i) all furniture, furnishings, equipment, machinery,
lighting, apparatus (both interior and exterior),
appliances, fixtures and fittings and other articles of
tangible personal property;
(ii) all slot machines, electronic gaming devices,
crap tables, blackjack tables, poker tables, roulette
(4)
<PAGE>
tables, baccarat tables, big six wheels and other gaming
tables, and all furnishings and equipment to be used in
connection with the operation thereof;
(iii) all cards, dice, gaming chips and plaques,
tokens, chip racks, dealing shoes, dice cups, dice sticks,
layouts, paddles, roulette balls and other consumable
supplies and items;
(iv) all china, glassware, linens, kitchen utensils,
silverware and uniforms;
(v) all consumables and operating supplies of every
kind and nature, including, without limitation, accounting
supplies, guest supplies, forms, printing, stationery, food
and beverage stock, bar supplies, laundry supplies and
brochures to existing purchase orders;
(vi) all upholstery material, carpets and rugs, beds,
bureaus, chiffonniers, chairs, chests, desks, bookcases,
tables, curtains, hangings, pictures, divans, couches,
ornaments, bars, bar fixtures, safes, stoves, ranges,
refrigerators, radios, televisions, clocks; electrical
equipment, lamps, mirrors, heating and lighting fixtures and
equipment, ice machines, air conditioning machines, fire
prevention and extinguishing apparatus, laundry machines,
and all similar and related articles used in bedrooms,
sitting rooms, bathrooms, boudoirs, halls, closets,
kitchens, dining rooms, offices, lobbies, basements and
cellars in the Casino Hotel and in any other improvements
now or hereafter located on any of the Land;
(vii) all sets and scenery, costumes, props and other
items of tangible personal property on hand or on order for
use in the production of shows in any showroom, convention
space, exhibition hall, or sports and entertainment arena of
the Casino Hotel or in any other improvements now or
hereafter located on any of the Land; and
(viii) all cars, limousines, vans, buses, trucks and
other vehicles owned or leased by Mortgagor for use in
connection with the operation of the Premises, together with
all equipment, parts and supplies used to service, repair,
maintain and equip the foregoing;
(g) all drawings, designs, plans and specifications
prepared by architects, engineers, interior designers, landscape
designers and any other professionals or consultants for the
design, development, construction and/or improvement of the
Casino Hotel, or for any other development of the Premises, as
amended from time to time;
(5)
<PAGE>
(h) any administrative and judicial proceedings initiated
by Mortgagor, or in which Mortgagor has intervened, concerning
the Premises, and agreements, if any, which are the subject
matter of such proceedings;
(i) any customer lists utilized by Mortgagor including
lists of transient guests and restaurant and bar patrons and
"high roller" lists; and
(j) all of the good will in connection with the assets
listed in this Granting Clause Sixth and in connection with the
operation of the Premises.
Except as may be set forth to the contrary herein, the
assignment made by this Granting Clause Sixth shall not impair or
diminish any right, privilege or obligation of Mortgagor with
respect to the Operating Assets, nor shall any such obligation be
imposed on Mortgagee.
Granting Clause Seventh
(a) All of Mortgagor's rights, title, interest, privileges
and franchises, if any, in and to all buildings, structures
(surface and subsurface), and other improvements of every kind
and description, including, without limitation, all pedestrian
bridges, entrance-ways, parking lots, plazas, curb-cuts,
walkways, driveways and landscaping and such fixtures as
constitute real property, now or hereafter erected or placed on
the Land or on any other land or any interest therein hereafter
acquired by Mortgagor and all of Mortgagor's rights, title,
interest, privileges and franchises in and to all fixtures and
articles of personal property now or hereafter attached to or
contained in and used in connection with such buildings and
improvements, including, without limitation, all apparatus,
furniture, furnishings, lighting equipment, electronic
billboards, machinery, motors, elevators, fittings, radiators,
cooking ranges, ice boxes, ice machines, printing presses,
mirrors, bars, mechanical refrigerators, furnaces, coal and oil
burning apparatus, wall cabinets, machinery, generators,
partitions, steam and hot water boilers, lighting and power
plants, pipes, plumbing, radiators, sinks, bath tubs, water
closets, gas and electrical fixtures, awnings, shades, screens,
blinds, dishwashers, freezers, vacuum cleaning systems, office
equipment and other furnishings, and all plumbing, heating,
lighting, cooking, laundry, ventilating, incinerating,
air-conditioning and sprinkler equipment or other fire prevention
or extinguishing apparatus and material, and fixtures and
appurtenances thereto; and all renewals or replacements thereof
or articles in substitution therefor, whether or not the same are
or shall be attached to the Land, any other land or any interest
(6)
<PAGE>
therein hereafter acquired by Mortgagor or to any such buildings
and improvements thereon, in any manner.
(b) All of Mortgagor's rights, title, interest, privileges
and franchises in and to all other property, real, personal or
mixed, of every kind and description and wheresoever situate, now
owned or which may be hereafter acquired by Mortgagor, it being
the intention hereof that all property, interests, rights,
privileges and franchises now owned by Mortgagor or acquired by
Mortgagor after the date hereof shall be as fully embraced within
and subjected to the lien hereof as if such property were
specifically described herein.
* * *
TOGETHER with all of Mortgagor's right, title and interest
in and to any and all mineral and water rights and any title or
reversion, in and to the beds of the ways, streets, avenues and
alleys adjoining the Premises to the center line thereof and in
and to all strips, gaps and gores adjoining the Premises on all
sides thereof; and
TOGETHER with any and all of Mortgagor's right, title and
interest in and to the tenements, hereditaments, easements,
appurtenances, passages, waters, water courses, riparian rights,
other rights, liberties and privileges thereof or in any way now
or hereafter appertaining to the Premises, including, without
limitation, any other claim at law or in equity as well as any
after-acquired title, franchise or license and the reversion and
reversions and remainder and remainders thereof; and
TOGETHER with any and all awards and other compensation
heretofore or hereafter to be made to the present and all
subsequent owners of the Trust Estate for any taking by eminent
domain, either permanent or temporary, of all or any part of the
Trust Estate or any easement or appurtenances thereof, including
severance and consequential damage and change in grade of
streets, all in accordance with and subject to the provisions of
the Superior Instrument Requirements and Section 5.17; and
TOGETHER with any and all proceeds of any unearned premiums
on any insurance policies described in Section 5.10, and the
right to receive and apply the proceeds of any insurance,
judgments, or settlements made in lieu thereof, for damage to the
Trust Estate or otherwise, all in accordance with and subject to
the provisions of Section 5.10 and the Superior Instrument
Requirements; and
TOGETHER with all proceeds of every kind and nature, and all
products of every kind and nature, of any of the foregoing
property, rights, title, interests, privileges, franchises and
(7)
<PAGE>
other assets described in Granting Clauses First through Seventh
or in any of the other clauses thereafter.
The foregoing shall include, whether or not specifically
identified in one or more instances, all such property, rights,
title, interests, privileges, franchises and other assets now
owned and/or hereafter existing.
EXCLUDING, with respect to all of the hereinabove granted
property, rights, title, interest, privileges and franchises
described in Granting Clauses First through Seventh or in the six
immediately preceding paragraphs, all Excepted Property now or
hereafter existing.
TO HAVE AND TO HOLD all of said Premises, Leases, Facility
Leases, Operating Assets, properties, options, credits, deposits,
rights, privileges and franchises of every kind and description,
real, personal or mixed, hereby and hereafter granted, bargained,
sold, aliened, assigned, transferred, hypothecated, pledged,
released, conveyed, mortgaged, or confirmed as aforesaid, or
intended, agreed or covenanted so to be, together with all the
appurtenances thereto appertaining (said Premises, Leases,
Facility Leases, Operating Assets, properties, options, credits,
deposits, rights, privileges and franchises, other than Excepted
Property now or hereafter existing, being herein collectively
called the "Trust Estate") unto Mortgagee and its successors and
assigns forever.
SUBJECT, HOWEVER, on the date hereof, to Existing
Encumbrances (including the Superior Mortgages) and, after the
date hereof, to Permitted Encumbrances (other than Restricted
Encumbrances).
PROVIDED, HOWEVER, that the lien of this Mortgage upon the
Trust Estate shall rank pari passu with the lien of the Guarantee
Mortgage.
BUT IN TRUST, NEVERTHELESS, for the ratable benefit and
security of the Holders.
UPON CONDITION that, until the happening of an Event of
Default, Mortgagor shall be permitted to possess and use the
Trust Estate, and to receive and use the rents, issues, profits,
revenues and other income of the Trust Estate.
AND IT IS HEREBY COVENANTED AND DECLARED that the Trust
Estate is to be held and applied by Mortgagee, subject to the
further covenants, conditions and trusts hereinafter set forth,
and Mortgagor does hereby covenant and agree to and with
Mortgagee, for the ratable benefit of the Holders, as follows:
(8)
<PAGE>
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF
GENERAL APPLICATION
Section 1.1. Definitions.
For all purposes of this Mortgage, except as otherwise
expressly provided or unless the context otherwise requires:
(a) the terms defined in this Article One have the meanings
assigned to them in this Article One and include the plural as
well as the singular;
(b) all accounting terms not otherwise defined herein have
the meanings assigned to them, and all computations herein
provided for shall be made, in accordance with generally accepted
accounting principles in effect on the date hereof consistently
applied; and
(c) the words "herein," "hereof" and "hereunder" and other
words of similar import refer to this Mortgage as a whole and not
to any particular Article, Section or other subdivision.
"Affiliate" has the meaning set forth in Section 1.1 of the
Trust Indenture.
"Alterations" has the meaning set forth in Section 5.11.
"Appraised Value" means the fair market value of the Casino
Hotel, and of all other property now or hereafter owned or leased
by Mortgagor and subject to the lien of this Mortgage, as
determined by an Independent Appraiser on the basis of an
appraisal in conformity with the criteria set forth at 12 C.F.R.
ss 564.4 or such similar published policy or regulation as from
time to time governs real estate related transactions by
institutions regulated by the Office of Thrift Supervision;
provided, that the value of the Casino Hotel and such other
property shall not include the value of (i) any furniture,
fixtures and equipment therein to the extent of the Outstanding
Amount of any Indebtedness secured by any F,F&E Financing
Agreements with respect thereto and (ii) any Excepted Property.
"Appraiser" means a "state certified appraiser" as defined
in 12 C.F.R. ss 564.2(i) who is (i) of recognized standing among
appraisers of properties similar to the Casino Hotel and (ii)
experienced in the appraisals of properties of a similar size and
scope to that of the Casino Hotel, selected by Mortgagor.
"Architect" means an Independent Person selected by
Mortgagor and licensed as an architect in the State of New
Jersey.
(9)
<PAGE>
"Assignment Agreement" means the Assignment Agreement of
even date herewith made by Trump's Castle Funding, Inc. to the
Trustee and acknowledged by Mortgagor, providing for the
assignment to the Trustee of the Note and this Mortgage.
"Casino" means that portion of the Casino Hotel used for
gaming and related activities.
"Casino Hotel" means the casino and hotel complex currently
known as the "Trump's Castle Casino Resort" in Atlantic City, New
Jersey, and ancillary structures and facilities located on the
Premises (other than the property covered by the Marina Lease)
and all furniture, fixtures and equipment at any time contained
therein in each case owned by or leased to Mortgagor.
"Casualty" means any act or occurrence of any kind or nature
which results in damage, loss or destruction to any buildings or
improvements on the Premises and/or Tangible Personal Property.
"Certificate of Appraised Value" means the certificate of an
Independent Appraiser stating the Appraised Value.
"Code" means the Federal Bankruptcy Code, Title 11 of the
United States Code, as amended.
"Company" means Trump's Castle Funding, Inc., a corporation
incorporated under the laws of the State of New Jersey, or any
other obligor on the Mortgage Notes (other than Mortgagor).
"Comparable Provision" has the meaning set forth in
Section 5.18.
"Default" means any event which is, or after notice or lapse
of time or both would be, an Event of Default. Without limiting
the generality of the previous provisions of this definition, the
term "Default" shall include the occurrence of an event as to
which a notice of default has been given to Mortgagor under any
Facility Lease by a Lessor or under any Superior Mortgage by the
holder thereof, which has not yet been cured.
"Depositary" means an Independent entity to which insurance
proceeds or condemnation awards are paid to be held in trust for
Restoration pursuant to the provisions of a Superior Mortgage.
"Event of Default" has the meaning set forth in Section 3.1.
"Excepted Property" means:
(1) the personal property owned by lessees under Leases and
the personal property of any Hotel guests;
(10)
<PAGE>
(2) trade names, intellectual property rights and other
rights and interests in and to the use of the terms "Trump's
Castle," "Trump," "Trump's Castle Casino Resort," "Donald J.
Trump," "Donald Trump" or related variations thereof;
(3) any property deemed to be Excepted Property pursuant to
the provisions of Section 2.3;
(4) counterchecks, cash and any other property to the
extent that the granting of a security interest therein is
prohibited by the New Jersey Casino Control Act, N.J.S.A. 5.12-1
et seq., and the regulations promulgated thereunder; and
(5) any property acquired pursuant to secured purchase-
money indebtedness under clause "i" of the definition of
"Permitted Indebtedness" in the Trust Indenture.
"Existing Encumbrances" means the matters set forth in
Schedule 3 hereto, including, but not limited to, the instruments
securing, evidencing or governing the Midlantic Term Loan, the
Senior Note Mortgage and the Senior Guarantee Mortgage.
"Facility Leases" means, collectively:
(1) the Marina Lease;
(2) any leases other than Capital Lease Obligations and the
Marina Lease when Mortgagor is tenant or sub-tenant; provided,
however, that the aggregate fixed rental payments paid or accrued
for any period of four consecutive fiscal quarters commencing
after the date hereof under all such leases (including payments
required to be made by the lessee in respect of taxes and
insurance, whether or not denominated as rent), shall not exceed
for such period (a) $2,000,000 or (b) $7,500,000 following the
time at which the Partnership shall have achieved EBITDA for any
period of four consecutive quarters in an amount not less than
$45.0 million; provided, further, that the Mortgagor may
designate certain such leases which are not material to the
operations of the Casino Hotel and which have aggregate fixed
rental payments (including payments required to be made by the
lessee in respect of taxes and insurance, whether or not
denominated as rent) not exceeding an aggregate of $300,000 per
year to be excluded from the leases covered by this clause (2);
and
(3) any and all modifications, extensions and renewals of
the leases described in clauses (1) and (2) above, to the extent
the same are permitted under Section 5.18.
"F,F&E Financing Agreement" has the meaning set forth in
Section 1.1 of the Trust Indenture.
(11)
<PAGE>
"Full Insurable Value" means the actual replacement cost
(excluding the costs of foundation, footing, excavation, paving,
landscaping and other similar, noninsurable improvements) of the
insurable properties in question.
"Guarantee" means the guarantee by Mortgagor of the
Company's Indenture Obligations (as defined in the Trust
Indenture) pursuant to Article Fourteen of the Trust Indenture.
"Guarantee Mortgage" means the Indenture of Mortgage and
Security Agreement of even date herewith between the Trustee, as
mortgagee, and Mortgagor, as mortgagor, which evidences a lien
pari paseu with this Note Mortgage and a true copy of which
mortgage is attached to the Trust Indenture as Exhibit D.
"Holder" has the meaning set forth in Section 1.1 of the
Trust Indenture.
"Hotel" means that portion of the Casino Hotel not included
within the Casino.
"Impositions" has the meaning set forth in Section 5.7.
"Indebtedness" has the meaning set forth in Section 1.1 of
the Trust Indenture.
"Independent" when used with respect to any specified Person
means such a Person who (i) is in fact independent, (ii) does not
have any direct financial interest or any material indirect
financial interest in Mortgagor or in any other obligor upon the
Note or in any Affiliate of Mortgagor or of such other obligor
and (iii) is not connected with Mortgagor or such other obligor
or any Affiliate of Mortgagor or such other obligor as an
officer, employee,, promoter, underwriter, trustee, partner,
director or person performing similar functions. Whenever it is
herein provided that any Independent Person's opinion or
certificate shall be furnished to Mortgagee, such Person shall be
appointed by a Mortgagor order and such opinion or certificate
shall state that the signer has read this definition and that the
signer is Independent within the meaning thereof. A Person who
is performing or who has performed services as an independent
contractor to any specified Person shall not be considered not
Independent merely by reason of the fact that such Person is
performing or has performed such services.
"Insurance Amount" has the meaning set forth in Section
5.10(a)(i).
"Insurance Requirements" means all terms of any insurance
policy covering or applicable to the Trust Estate or any part
thereof, all requirements of the issuer of any such policy, and
all orders, rules, regulations and other requirements of the
(12)
<PAGE>
National Board of Fire Underwriters (or any other body exercising
similar functions) applicable to or affecting the Trust Estate or
any part thereof or any use or condition of the Trust Estate or
any part thereof.
"Insurance Trustee" means the Trustee or, if the Trustee so
elects, any bank, trust company or insurance company with a net
worth in excess of $100,000,000, designated by the Trustee.
"Insurer" means (i) an insurance company or companies
selected by Mortgagor authorized to issue insurance in the State
of New Jersey with an A.M. Best rating level of A minus or better
and an A.M. Best financial size category of VIII or better or
(ii) Lloyds of London so long as its financial capacity is not
such that prudent owners of first-class casino and hotel
complexes in Atlantic City, New Jersey would be unwilling to
accept Lloyds of London; provided, that with respect to the
insurance required to be maintained pursuant to Section
5.10(a)(i), up to 1.0% of the total amount of such insurance in
excess of the first $10,000,000 thereof may be maintained with an
insurance company or companies not meeting the foregoing A.M.
Best rating level and/or A.M. Best financial size categories; and
provided, further, that Mortgagor shall in all events use
commercially reasonable efforts to obtain insurance issued by
insurance companies having an A.M. Best rating level of better
than A minus.
"Land" means, collectively, the Owned Land and the Leased
Land.
"Lease" means each lease or sublease (made by Mortgagor, as
lessor or sublessor, as the case may be) of any space in any
building or buildings, an interest in which building or buildings
constitutes a part of the Trust Estate, including every agreement
relating thereto or entered into in connection therewith and
every guarantee of the performance and observance of the
covenants, conditions and agreements to be performed by the
lessee or sublessee under any such lease or sublease. For
purposes hereof, the term "Lease" shall include any license
agreement, concession agreement or other occupancy agreement.
Notwithstanding the foregoing, the term "Lease" shall not include
any transient room rentals.
"Leased Facilities" means, collectively, the Leased Land and
any buildings and improvements now or hereafter located thereon.
"Leased Land" means, collectively, the Marina Lease and any
other land that is now or hereafter subject to a Facility Lease.
"Legal Requirements" means all laws, statutes, codes, acts,
ordinances, orders, judgments, decrees, injunctions, rules,
regulations, permits, licenses, authorizations, directions and
(13)
<PAGE>
requirements (including, without limitation, the New Jersey
Casino Control Act, the New Jersey Environment Cleanup
Responsibility Act and the New Jersey Spill Compensation and
Control Act of 1976) of all governments, departments,
commissions, boards, courts, authorities, agencies, officials and
officers, of governments, federal, state and municipal
(including, without limitation, the New Jersey Department of
Environmental Protection and Energy, the Atlantic City Bureau of
Investigations, the Division of Gaming Enforcement of the State
of New Jersey, and the Casino Control Commission of the State of
New Jersey), foreseen or unforeseen, ordinary or extraordinary,
which now are or at any time hereafter become applicable to the
Trust Estate or any part thereof, or any of the adjoining
sidewalks, or any use or condition of the Trust Estate or any
part thereof, including, without limitation, the use of the
Casino Hotel as a gaming or gambling facility.
"Lessors" means the lessors under the Facility Leases.
"Marina Lease" means the lease agreement made September 1,
1990 between the State of New Jersey, as Landlord, and Mortgagor,
as tenant, respecting property known as the Senator Frank S.
Farley State Marina, Atlantic City, New Jersey, being designated
as a portion of Block B-4, Lot 11 on the tax map of the City of
Atlantic City, Atlantic County, New Jersey, as more particularly
described on Schedule 2 appended hereto and made a part hereof,
together with all amendments, restatements, extensions and
renewals of said lease agreement.
"Maturity" when used with respect to any Indebtedness means
the date on which the principal (or any portion thereof) of such
Indebtedness becomes due and payable as therein or herein
provided, whether at the Stated Maturity, upon acceleration,
optional redemption, required repurchase, scheduled principal
payment or otherwise.
"Midlantic Mortgage" means the Amended and Restated
Indenture of Mortgage, dated as of May 29, 1992, from the
Mortgagor to Midlantic National Bank, the Amended and Restated
Assignment of Leases and Rents, dated as of May 29, 1992, between
the same parties, and the Amended and Restated Assignment of
Operating Assets, dated as of May 29, 1992, between the same
parties and all amendments, restatements, extensions and renewals
thereof.
"Midlantic Term Loan" has the meaning set forth in
Section 1.1 of the Trust Indenture.
"Mortgage Debt" has the meaning set forth in Section 1.1 of
the Trust Indenture.
(14)
<PAGE>
<PAGE>
"Mortgage Documents" has the meaning set forth in Section
1.1 of the Trust Indenture.
"Mortgage Notes" means the 11-3/4% Mortgage Notes due 2003
issued by the Company pursuant to the Trust Indenture.
"Mortgagee" has the meaning set forth in Section 1.12.
"Mortgagor" means the Person named as "Mortgagor" in the
first paragraph of this instrument until a successor entity shall
have become such pursuant to the applicable provisions of this
Mortgage, and thereafter, except to the extent otherwise
contemplated by Section 4.2, "Mortgagor" shall mean such
successor entity exclusively.
"Mortgagor Order" and "Mortgagor Request" mean,
respectively, a written order or request signed with a Mortgagor
Signature and delivered to Mortgagee.
"Mortgagor Signature" means the signature of the President
or a Vice President of a corporate general partner of Mortgagor
or of a general partner of Mortgagor.
"Mortgagor's Certificate" means a certificate signed with a
Mortgagor Signature and delivered to Mortgagee.
"Note" means that certain Partnership Note of even date
herewith in the original principal amount of $242,141,304 made by
Mortgagor in favor of Mortgagee, a true copy of which note is
attached to the Trust Indenture as Exhibit A, and any amendments,
extensions, renewals, replacements or restatements of the same to
the extent permitted under the Trust Indenture.
"Notices" has the meaning set forth in Section 1.2.
"Operating Assets" has the meaning set forth in Granting
Clause Sixth.
"Opinion of Counsel" means a written opinion of counsel who
may (except as otherwise expressly provided in this Mortgage) be
an employee of Mortgagor or of an Affiliate of Mortgagor.
"Original Policy" means the ALTA Loan Policies of
Title Insurance issued by First American Title Insurance Company,
Chicago Title Insurance Company and Commonwealth Land Title
Insurance Company, pursuant to Title Commitment No. F237584L,
dated the date hereof.
"Outstanding Amount" has the meaning set forth in
Section 1.1 of the Trust Indenture.
(15)
<PAGE>
<PAGE>
"Owned Land" has the meaning set forth in Granting Clause
First.
"Permits" means all licenses, franchises, authorizations,
statements of compliance, certificates of operation, certificates
of occupancy and permits required for the lawful ownership,
occupancy, operation and use of all or a material portion of the
Premises whether held by Mortgagor or any other Person (which may
be temporary or permanent) (including, without limitation, those
required for the use of the Casino Hotel as a licensed casino
facility), in accordance with all applicable Legal Requirements.
"Permitted Encumbrances" means:
(1) liens for taxes, assessments, or governmental charges
not yet due and payable, or if due and payable not
delinquent, to the extent that any fine, penalty, interest or
cost may be added for nonpayment thereof;
(2) Existing Encumbrances (including the Superior
Mortgages);
(3) F,F&E Financing Agreements permitted by the Trust
Indenture;
(4) the liens of the Mortgage Documents and any rights
granted as provided therein;
(5) the liens of the Trustee provided for in Section 6.6 of
the Trust Indenture and of the trustees under the corresponding
sections of the Senior Note Indenture and the PIK Note Indenture;
(6) any lien or encumbrance which, under the provisions of
Section 5.7, constitutes a Permitted Encumbrance;
(7) Restricted Encumbrances;
(8) Working Capital Facility Mortgage;
(9) any lien or encumbrance permitted under Section 5.3 of
this Mortgage;
(10) any lien or encumbrance securing purchase-money
indebtedness permitted by the Trust Indenture;
(11) modifications, refinancings, extensions, renewals or
replacements, in whole or in part, of the liens described in
clauses (2) through (10) of this definition to the extent
permitted by Section 5.19 hereof and the Trust Indenture; and
(12) any Facility Lease now existing or hereafter entered
into.
(16)
<PAGE>
"Person" means any individual, corporation, limited or
general partnership, joint venture, association, joint stock
company, trust, unincorporated organization or any other entity
or government or any agency or political subdivision thereof.
"PIK Note Indenture" means that certain indenture of even
date herewith among the Company, as issuer, the Mortgagor, as
guarantor, and First Bank National Association, as trustee, as it
may be amended from time to time, relating to the Company's PIK
Notes.
"PIK Notes" means the Company's 13 7/8% Pay-in-Kind Notes
due 2005.
"Premises" has the meaning set forth in Granting Clause
Fourth.
"Restoration" has the meaning set forth in Section
5.10(e)(iii).
"Restricted Encumbrances" means any Leases permitted by and
made in accordance with Section 5.12 of this Mortgage.
"Securities Act" has the meaning set forth in
Section 1.1 of the Trust Indenture.
"Senior Guarantee" means the guarantee by Mortgagor of the
Company's Indenture Obligations (as defined in the Senior Note
Indenture) pursuant to Article Fourteen of the Senior Note
Indenture.
"Senior Guarantee Mortgage" means the Indenture of Mortgage
and Security Agreement of even date herewith between the Trustee,
as mortgagee, and Mortgagor, as mortgagor, securing the guarantee
set forth in the Senior Note Indenture, and which evidences a
lien pari passu with the Senior Note Mortgage.
"Senior Indebtedness" means the Indebtedness evidenced by
the Midlantic Term Loan, the Senior Secured Notes, the Senior
Guarantee and the Working Capital Facility, and any amendments,
extensions, renewals, replacements or restatement of any of the
foregoing to the extent permitted under the Trust Indenture.
"Senior Note Indenture" means that certain indenture of even
date herewith between the Mortgagee, as issuer, the Mortgagor, as
guarantor, and First Bank National Association, as trustee,
relating to the Senior Secured Notes.
"Senior Note Mortgage" means the Indenture of Mortgage and
Security Agreement, dated as of the date hereof, between the
Company, as mortgagee, and the Partnership, as mortgagor,
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securing the Senior Partnership Note (as defined in the Trust
Indenture) and evidencing a lien pari passu with the lien of the
Senior Guarantee Mortgage.
"Senior Notes" means the 11.5% Senior Secured Notes due 2000
issued by the Mortgagee under the Senior Note Indenture.
"Settlement Costs" has the meaning set forth in
Section 5.17.
"Stated Maturity" when used with respect to any
Indebtedness, means the date specified in such Indebtedness as
the fixed date on which the principal of such Indebtedness is due
and payable.
"Superior Instrument Requirements" means the applicable
terms, conditions and provisions of any documentation which
constitutes, evidences, secures or governs any Senior
Indebtedness, together with the terms and provisions of the
Marina Lease.
"Superior Mortgages" means, collectively, the Midlantic
Mortgage, the Senior Note Mortgage, the Senior Guarantee Mortgage
and a Working Capital Facility Mortgage, if obtained, and any
amendments, extensions, renewals or restatements of the same to
the extent permitted by Section 5.19 hereof and the Trust
Indenture.
"Taking" means the acquisition or condemnation by eminent
domain of the whole or any part of the Premises, by a competent
authority, for any public or quasi-public use or purpose.
"Tangible Personal Property" has the meaning set forth
in subclause (f) of Granting Clause Sixth.
"Trust Estate" has the meaning stated in the habendum to the
Granting Clauses.
"Trust Indenture" means that certain indenture of even date
herewith among Mortgagor, as guarantor, Mortgagee, as issuer, and
First Bank National Association, as trustee, relating to the
Mortgage Notes, as it may from time to time be supplemented,
modified or amended by one or more trust indentures or other
instruments supplemental thereto entered into pursuant to the
applicable provisions thereof, a form of which (without exhibits)
is attached hereto as Exhibit A.
"Trust Indenture Act" has the meaning set forth in
Section 1.1 of the Trust Indenture.
"Trustee" means the Person named as the "Trustee" in the
first paragraph of the Trust Indenture and any successor thereto.
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"Uniform Commercial Code" means the New Jersey Uniform
Commercial Code N.J.S.A. 12A:1-101, et seq.
"Working Capital Facility" has the meaning set forth in
Section 1.1 of the Trust Indenture.
"Working Capital Facility Mortgage" means any mortgage,
assignment or other security instrument or agreement which
secures all or any portion of a Working Capital Facility, if
obtained, and which evidences a lien pari passu with the lien of
the Senior Note Mortgage.
Section 1.2. Notices.
(a) Any request, demand, authorization, direction, notice
(including, without limitation, a notice of default), consent,
waiver or other document provided or permitted by this Mortgage
to be made upon, given or furnished to, or filed with, Mortgagor,
Mortgagee or the Trustee (collectively, "Notices") shall be in
writing and shall be deemed given either (i) when delivered by
hand (including by overnight courier) or (ii) two days after
sending by registered or certified mail, postage prepaid,
addressed as follows:
To Mortgagor:
Trump's Castle Associates
Trump's Castle Casino Resort
Brigantine Boulevard and Huron Avenue
Atlantic City, New Jersey 08401
Attn: Chief Financial Officer
and
Willkie Farr & Gallagher
One Citicorp Center
153 East 53rd Street
New York, New York 10022
Attn: Thomas M. Cerabino, Esq.
To Mortgagee:
Trump's Castle Funding, Inc.
Trump's Castle Casino Resort
Brigantine Boulevard and Huron Avenue
Atlantic City, New Jersey 08401
Attn: Chief Financial Officer
and
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Willkie Farr & Gallagher
One Citicorp Center
153 East 53rd Street
New York, New York 10022
Attn: Thomas M. Cerabino, Esq.
To the Trustee:
First Bank National Association
c/o First Trust National Association
180 East Fifth Street
St. Paul, Minnesota 55101
Attn: Corporate Trust Department
(b) By Notice to Mortgagor, Mortgagee and the Trustee, any
party may designate additional or substitute addresses for
Notices which, notwithstanding Subsection (a) above, shall be
deemed given when received. So long as the Assignment Agreement
is in effect, all Notices to and from Mortgagee shall be given
solely to and by the Trustee.
Section 1.3. Form and Contents of
Documents Delivered to Mortgagee.
Whenever several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not
necessary that all such matters be certified by, or covered by
the opinion of, only one such Person, or that they be so
certified or covered by only one document, but one such Person
may certify or give an opinion with respect to some matters and
one or more other such Persons as to other such matters in one or
several documents.
Any certificate or opinion of a general partner of Mortgagor
may be based, insofar as it relates to legal matters, upon a
certificate or opinion of, or representations by, counsel, unless
such general partner knows that the certificate or opinion or
representations with respect to the matters upon which his
certificate or opinion is based are erroneous. Any Opinion of
Counsel may be based, insofar as it relates to factual matters,
upon a certificate or opinion of, or representations by, a
general partner of Mortgagor stating that the information with
respect to such factual matters is in the possession of
Mortgagor, unless such counsel knows that the certificate or
opinion or representations with respect to such matters are
erroneous. If appropriate to the matter being opined upon and to
the extent not prohibited by the Trust Indenture Act, conclusions
stated in any Opinion of Counsel may be subject to rights of
creditors and the availability of equitable remedies.
Whenever any Person is required to make, give or execute two
or more applications, requests, consents, certificates,
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statements, opinions or other instruments under this Mortgage,
they may, but need not, be consolidated to form one instrument.
Whenever in this Mortgage, in connection with any
application or certificate or report to Mortgagee, it is provided
that Mortgagor shall deliver any document as a condition of the
granting of such application, or as evidence of Mortgagor's
compliance with any term hereof, it is intended that the truth
and accuracy, at the time of the granting of such application or
at the effective date of such certificate or report (as the case
may be), of the facts and opinions stated in such document shall
in such case be conditions precedent to the right of Mortgagor to
have such application granted or to the sufficiency of such
certificate or report.
Every application, certificate, report, affidavit, opinion,
consent, statement or other instrument required to be delivered
to Mortgagee under this Mortgage or under any other Mortgage
Document shall be in writing and shall be prepared and delivered
without cost or expense to Mortgagee.
Section 1.4. Compliance Certificates and Opinions.
Upon any application or request by Mortgagor to Mortgagee to
take any action under any provision of this Mortgage, Mortgagor
shall furnish to Mortgagee a Mortgagor's Certificate stating that
all conditions precedent, if any, provided for in this Mortgage
relating to the proposed action have been complied with and an
Opinion of Counsel stating that in the opinion of such counsel
all such conditions precedent, if any, have been complied with,
except that in the case of any such application or request as to
which the furnishing of such documents is specifically required
by any provision of this Mortgage relating to such particular
application or request, no additional certificate or opinion need
be furnished. Every certificate or opinion with respect to
compliance with a condition or covenant provided for in this
Mortgage shall include:
(a) a statement that each individual signing such
certificate or opinion has read such condition or covenant and
the definitions herein relating thereto;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or
opinions contained in such certificate or opinion are based;
(c) a statement that, in the opinion of each such
individual, he has made such examination or investigation as is
necessary to enable him to express an informed opinion as to
whether or not such condition or covenant has been complied with;
and
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(d) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 1.5. Effect of Headings and Table of Contents.
The Article and Section headings herein and in the Table of
Contents are for convenience only and shall not affect the
construction hereof.
Section 1.6. Successors and Assigns; Amendments.
(a) Subject to the provisions of Sections 1.10 and 4.2
hereof and Sections 3.11 and 8.2 of the Trust Indenture, and
without limiting the generality of Section 1.12 hereof, this
Mortgage shall be binding upon and inure to the benefit of the
parties hereto and of the respective successors and assigns of
the parties hereto to the same effect as if each such successor
or assign were in each case named as a party to this Mortgage.
(b) This Mortgage may not be modified, amended, discharged,
released nor any of its provisions waived except by agreement in
writing executed by Mortgagor and Mortgagee and in accordance
with the provisions of this Mortgage and the Trust Indenture.
Section 1.7 Separability Clause.
In case any provision in this Mortgage or the Note shall be
invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way
be affected or impaired thereby.
Section 1.8. Benefits of Mortgage.
Without limiting the generality of Section 1.12, nothing in
this Mortgage or in the Note, express or implied, shall give to
any Person, other than the parties hereto and their successors
and assigns, any benefit or any legal or equitable right, remedy
or claim under this Mortgage.
Section 1.9. Governing Law.
This Mortgage shall be deemed to be a contract under the
laws of the State of New Jersey and shall be construed in
accordance with and governed by the laws of the State of New
Jersey.
Section 1.10. Limitation on Liability.
Notwithstanding anything herein or in any other agreement,
document, certificate, instrument, statement or omission referred
to below to the contrary, Mortgagor is liable hereunder only to
the extent of the assets of Mortgagor and no other person or
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entity, including, without limitation, any partner, officer,
committee or committee member of Mortgagor or any partner therein
or in any partnership Affiliate of Mortgagor, or any
incorporator, officer, director or shareholder of any corporate
partner of Mortgagor or of any corporate Affiliate of Mortgagor,
or any Affiliate or controlling person or entity of any of the
foregoing, or any agent, employee, or lender of any of the
foregoing, or any successor, personal representative, heir or
assign of any of the foregoing, in each case past, present or as
they may exist in the future, shall be liable in any respect
(including, without limitation, the breach of any representation,
warranty, covenant, agreement, condition or indemnification or
contribution undertaking contained herein or therein) under, in
connection with, arising out of or relating to this Mortgage, or
any other agreement, document, certificate, instrument or
statement (oral or written) related to, executed or to be
executed, delivered or to be delivered, or made or to be made, or
any omission made or to be made, in connection with any of the
foregoing or any of the transactions contemplated in any such
agreement, document, certificate, instrument, or statement. Any
agreement, document, certificate, statement or other instrument
to be executed simultaneously with, in connection with, arising
out of or relating to this Mortgage or any other agreement,
document, certificate, statement or instrument referred to above,
or any agreement, document, certificate, statement or instrument
contemplated hereby shall contain language mutatis mutandis to
this Section 1.10 and, if such language is omitted, shall be
deemed to contain such language.
Section 1.11. Provisions Required by Trust Indenture.
Whenever the provisions of this Mortgage and the provisions
of the Trust Indenture shall be inconsistent, the provisions of
the Trust Indenture shall govern.
Section 1.12. References to Mortgagee
and/or to Trustee; Rights of Trustee.
(a) Whenever reference is made in this Mortgage to the
rights, powers and remedies of Mortgagee or to Notices to or by
Mortgagee, the same shall apply to Trump's Castle Funding, Inc.
only so long as Trump's Castle Funding, Inc. is the holder of
this Mortgage and the Note. Subsequent to the assignment thereof
on the date of and pursuant to the Assignment Agreement by
Trump's Castle Funding, Inc. to the Trustee (who shall have and
hold all such rights, powers and remedies on behalf of the
Holders in accordance with the terms of the Trust Indenture) and
for so long as there shall not have been effected a cancellation
and discharge of the assignment pursuant to Article V of the
Assignment Agreement, such rights, powers and remedies of
Mortgagee and any Notices to or by Mortgagee, shall apply only to
the Trustee with the same force and effect as if (i) such rights,
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powers and remedies were specifically granted by this Mortgage
and the Note directly to the Trustee and (ii) the Trustee were
the named Mortgagee with respect to the giving and receiving of
Notices under Section 1.2. Upon such assignment of this
Mortgage, the Trustee shall be named in lieu of Trump's Castle
Funding, Inc., as a named insured under the policies of insurance
set forth in Section 5.10 hereof (except that with respect to the
policy described in Section 5.10(a)(iii) of this Mortgage,
Trump's Castle Funding, Inc. may, at Mortgagor's election, be
named as an additional insured).
(b) So long as there shall not have been effected a
cancellation and discharge of the assignment pursuant to Article
V of the Assignment Agreement, except as otherwise provided in
Section 6.2 of the Trust Indenture:
(1) Mortgagee may rely, and shall be protected in
acting or refraining from acting, upon any resolution,
certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note,
other evidence of indebtedness or other paper or document
believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(2) any request or direction of Mortgagor mentioned
herein shall be sufficiently evidenced by a Mortgagor
Request or Mortgagor Order;
(3) whenever in the administration of this Mortgage,
Mortgagee shall deem it desirable that a matter be proved or
established prior to taking, suffering or omitting any
action hereunder, Mortgagee (unless other evidence be herein
specifically prescribed) may, in the absence of bad faith on
its part, rely upon a Mortgagor's Certificate;
(4) Mortgagee may consult with counsel and any written
advice of such counsel or any Opinion of Counsel shall be
full and complete authorization and protection in respect of
any action taken, suffered or omitted by Mortgagee hereunder
in good faith and in reliance thereon;
(5) Mortgagee shall be under no obligation to exercise
any of the rights or powers vested in it by this Mortgage at
the request or direction of any of the Holders pursuant to
the Trust Indenture, unless such Holders shall have offered
to Mortgagee reasonable security or indemnity against the
costs, expenses and liabilities which might be incurred
therein or thereby in compliance with such request or
direction;
(6) Mortgagee shall not be bound to make any
investigation into the facts or matters stated in any
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resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order,
approval, appraisal, bond, debenture, note, coupon, security
or other paper or document but Mortgagee, in its discretion,
may make such further inquiry or investigation into such
facts or matters as it may see fit, and, if Mortgagee shall
determine to make such further inquiry or investigation, it
shall be entitled (subject to the express limitations with
respect thereto contained in this Mortgage) to examine the
books, records and premises of Mortgagor, personally or by
agent or attorney;
(7) Mortgagee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or
by or through agents or attorneys, and Mortgagee shall not
be responsible for any misconduct or negligence on the part
of any agent or attorney appointed with due care by it
hereunder;
(8) Mortgagee shall not be personally liable, in case
of entry by it upon the Trust Estate, for debts contracted
or liabilities or damages incurred in the management or
operation of the Trust Estate;
(9) Mortgagor shall pay or cause to be paid to the
Trustee all compensation and other amounts provided in
Section 6.6 of the Trust Indenture; and
(10) no provision of this Mortgage shall require
Mortgagee to expend or risk its own funds or otherwise incur
any financial liability in the performance of its
obligations hereunder, or in the exercise of any of its
rights or powers.
(c) The provisions of Section 1.12(a) shall apply to all
Mortgage Documents executed in favor of Trump's Castle Funding,
Inc. The provisions of Section 1.12(b) shall apply to all
Mortgage Documents.
Section 1.13. Mortgage Subject to Casino Control Act.
Each provision of this Mortgage is subject to and shall be
enforced in compliance with the provisions of the New Jersey
Casino Control Act.
Section 1.14. Discharge of Lien.
If (a) Mortgagor shall pay or cause to be paid, or there
shall otherwise be paid, to Mortgagee all amounts required to be
paid by Mortgagor pursuant to this Mortgage and the Note and the
conditions precedent for the Trust Indenture to cease, determine
and become null and void (except for any surviving rights of
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transfer or exchange of the Mortgage Notes provided in Section
13.1 of the Trust Indenture and for the obligation to pay the
Trustee's fees and expenses provided in Section 6.6 of the Trust
Indenture) in accordance with Section 13.1 of the Trust Indenture
shall have occurred, or (b) there shall have occurred a
"defeasance" (as defined in Section 4.2 of the Trust Indenture)
of the Mortgage Notes, or (c) there shall have occurred a
"covenant defeasance" (as defined in Section 4.3 of the Trust
Indenture), then in any such case Mortgagee shall promptly cancel
and discharge the Mortgage Documents, including, without
limitation, this Mortgage, and any financing statements filed in
connection herewith and execute and deliver to Mortgagor all such
instruments as may be necessary, required or appropriate to
evidence such discharge and satisfaction of said lien or liens.
Section 1.15. General Application.
(a) The remedies of Mortgagee upon any default by Mortgagor
in the fulfillment of any of its obligations hereunder shall be
limited in each instance by the provisions of Section 1.10,
whether or not the provisions providing for such remedies
explicitly refer to such Section.
(b) The assertion of any rights upon any Default shall be
subject in each instance to, if required, the giving of any
notice and the expiration of any grace period provided for in
Section 3.1 as a condition to such Default becoming an Event of
Default, unless the Trust Indenture Act requires otherwise, in
which case the Trust Indenture Act shall control.
(c) For the purposes of this Mortgage, it is understood
that an event which does not materially diminish the value of
Mortgagee's interest in the Trust Estate shall not be deemed an
"impairment of security," as that phrase is used in this
Mortgage.
Section 1.16. Mortgage Deemed to be Security Agreement.
To the extent that the grant of a security interest in any
portion of the Trust Estate is governed by the Uniform Commercial
Code, this Mortgage is hereby deemed to be as well a security
agreement under the Uniform Commercial Code for the purpose of
creating hereby a security interest in all of Mortgagor's right,
title and interest in and to said property, securing the
obligations secured hereby, for the benefit of Mortgagee.
Section 1.17. No Duplication of Notices or Payments.
Whenever it is provided in this Mortgage and the Guarantee
Mortgage that Mortgagor shall deliver any notice or document, or
is required to make any payment, the delivery of such notice or
document or the making of such payment shall constitute the
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delivery of such notice or document or the making of such payment
in satisfaction of the terms, conditions and provisions of both
this Mortgage and the Guarantee Mortgage, provided that such
notice, document or payment states, or is accompanied by a letter
stating, that such notice, document or payment is being delivered
in satisfaction of the terms, conditions and provisions of both
this Mortgage and the Guarantee Mortgage.
ARTICLE TWO
RELEASE; SUBORDINATION
Section 2.1. Possession by Mortgagor.
So long as there shall have been no acceleration of maturity
of the Note under Section 3.2, Mortgagor shall be suffered and
permitted, with power freely and without let or hindrance on the
part of Mortgagee, subject to the provisions of this Mortgage and
the Trust Indenture, to possess, use, manage, operate and enjoy
the Trust Estate and every part thereof and to collect, receive,
use, invest and dispose of the rents, issues, tolls, profits,
revenues and other income from the Trust Estate or any part
thereof, to use, consume and dispose of any consumables, goods,
wares and merchandise in the ordinary course of business of
operating the Casino Hotel and to adjust and settle all matters
relating to choses in action, leases and contracts.
Section 2.2. Obsolete Property.
Mortgagor shall have the right, at any time and from time to
time, unless an Event of Default shall have occurred and be
continuing, without any release from or consent by Mortgagee:
(a) to sell or dispose of, free from the lien of this
Mortgage, any Tangible Personal Property which, in its reasonable
opinion, may have become obsolete or unfit for use or which is no
longer necessary in the conduct of its businesses or the
operation of the Trust Estate, and no purchaser of any such
property shall be bound to inquire into any question affecting
Mortgagor's right to sell or otherwise dispose of the same free
from the lien of this Mortgage;
(b) to alter, repair, replace, change the location or
position of and add to any Tangible Personal Property; provided,
however, that no change shall be made in the location of any such
property subject to the lien of this Mortgage which would in any
respect impair the security of this Mortgage upon such property;
or
(c) to renew, extend, surrender, terminate, modify or amend
any leases of Tangible Personal Property, when, in Mortgagor's
reasonable opinion, it is prudent to do so.
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Mortgagor shall retain any net cash proceeds received from
the sale or disposition of any Tangible Personal Property under
Subsection (a) of this Section 2.2, in the business of operating
the Casino Hotel.
Mortgagee shall be under no responsibility or duty with
respect to the exercise of the rights of Mortgagor under this
Section 2.2 or the application of the proceeds of any sale or
disposition of any Tangible Personal Property.
Mortgagee shall, from time to time, promptly execute any
written instrument in form satisfactory to Mortgagee to confirm
the propriety of any action taken by Mortgagor under this Section
2.2, upon receipt by Mortgagee of a Mortgagor Request requesting
the same, together with a Mortgagor's Certificate stating that
the action so to be confirmed was duly taken in conformity with
this Section 2.2, and that the execution of such written
instrument is appropriate to confirm the propriety of such action
under this Section 2.2; provided, that Mortgagee shall have no
liability thereunder and all costs and expenses (including,
without limitation, reasonable attorneys' fees and disbursements)
shall be paid by Mortgagor.
Section 2.3. F,F&E Financing Agreements.
Notwithstanding any provision contained in this Mortgage or
the Trust Indenture to the contrary, if Mortgagor acquires
Tangible Personal Property and/or other items constituting
operating assets subject to any F,F&E Financing Agreement, or
becomes the lessee under a lease for any of the same and if the
document evidencing such F,F&E Financing Agreement prohibits
subordinate liens or the provisions of any such lease prohibits
any assignment thereof by the lessee, and if any such prohibition
is customary with respect to similar transactions of the lender
or lessor (as evidenced by a Mortgagor's Certificate delivered to
Mortgagee, together with such other evidence as Mortgagee may
reasonably request), as the case may be, then the property so
purchased or the lessee's interest in the lease, as the case may
be, shall be deemed to be Excepted Property. If any such F,F&E
Financing Agreement permits subordinate liens, then Mortgagee
shall execute and deliver to Mortgagor, at Mortgagor's expense,
such documents as the holder of such F,F&E Financing Agreement
may reasonably request to evidence the subordination of the lien
of this Mortgage and the Mortgage Documents to the lien of such
F,F&E Financing Agreement; provided, however, that Mortgagee
shall have no obligation to execute and deliver such documents,
and the lien of this Mortgage shall not be subordinate to any
such F,F&E Financing Agreement, unless (a) such F,F&E Financing
Agreement shall contain a provision binding upon the holder of
such F,F&E Financing Agreement that (i) if the holder of such
F,F&E Financing Agreement shall give to Mortgagor any notice of
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default thereunder, such holder shall at the same time and in the
same manner serve a copy of such notice on Mortgagee at the
address designated herein (or such other address as Mortgagee may
designate by notice given to the holder of such F,F&E Financing
Agreement in the manner provided for notices hereunder), and that
no such notice to Mortgagor shall be deemed to have been duly
given unless and until a copy thereof has been so provided to
Mortgagee, and (ii) promptly following the last date upon which
Mortgagor may cure such default, if Mortgagor shall fail to cure
such default, the holder of such F,F&E Financing Agreement shall
give notice to Mortgagee stating the manner in which Mortgagor
shall have failed to cure its said default, in which event
Mortgagee shall be permitted to cure the default and, with
respect thereto, Mortgagee shall have the same amount of time,
after such notice, within which to cure the said default, as is
provided for under the provisions of such F,F&E Financing
Agreement to be given to Mortgagor therefor after notice or (b)
Mortgagor delivers to Mortgagee a Mortgagor's Certificate
certifying that (i) the provision described in clause (a) is not
customarily included by the lender or lessor in its F,F&E
Financing Agreements in similar transactions and (ii) although
Mortgagor has used reasonable efforts to have included in such
F,F&E Financing Agreement such a provision, Mortgagor has been
unsuccessful in obtaining such a provision.
ARTICLE THREE
REMEDIES
Section 3.1. Events of Default.
"Event of Default," whenever used herein, means any one of
the following events (including any applicable notice requirement
and any period of grace, as specified in this Section 3.1)
(whatever the reason for such event and whether it shall be
voluntary or involuntary or be effected by operation of law or
pursuant to any judgment, decree or order of any court or any
order, rule or regulation of any administrative or governmental
body):
(a) default in the payment of any interest on the Note when
such interest becomes due and payable and continuance of such
default for a period of 30 days; or
(b) default in the payment of all or any portion of the
principal of (or premium, if any, on) the Note when the same
becomes due and payable at its Maturity; or
(c) default in the payment of any other sum due under the
Note or this Mortgage, and the continuance of such default for a
period of 30 days after there has been given to Mortgagor a
notice specifying such default and requiring it to be remedied
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and stating that such notice is a "Notice of Default" hereunder;
or
(d) default in the performance, or breach, of any
covenant of Mortgagor in this Mortgage (other than a covenant, a
default in the performance or breach of which is elsewhere in
this Section 3.1 specifically dealt with), and continuance of
such default or breach for a period of 30 days after there has
been given to Mortgagor a notice specifying such default or
breach and requiring it to be remedied and stating that such
notice is a "Notice of Default" hereunder, unless (i) the default
or breach is of such a nature that is curable but not susceptible
of being cured with due diligence within such 30-day period (for
reasons other than the lack of funds), (ii) Mortgagor delivers an
Mortgagor's Certificate to Mortgagee within such 30-day period
stating (A) the applicability of the provisions of clause (i) to
such default or breach, (B) Mortgagor's intention to remedy such
default or breach with reasonable diligence and (C) the steps
which Mortgagor has undertaken or intends to undertake to remedy
such default or breach and (iii) Mortgagor delivers to Mortgagee
additional Mortgagor's Certificates every 30 days thereafter
updating the information contained in the certificate described
in clause (ii), in which case such 30-day period shall be
extended for such further period of time (but in no event more
than 60 days after the last day of such 30-day period) as may
reasonably be required to cure the same, provided that Mortgagor
is then proceeding and thereafter continues to proceed to cure
the same with reasonable diligence; or
(e) an "Event of Default," as defined in Section 5.1 of the
Trust Indenture, shall occur and be continuing; or
(f) default by Mortgagor under any of the terms of any
Facility Lease which shall not be fully cured or waived prior to
the expiration of any grace period (as such grace period may be
extended) contained in such Facility Lease; or
(g) default by Mortgagor under any of the terms of any
Superior Mortgage with respect to which there is no grace period
and no notice is required to be given, or, if a grace period is
provided in such Superior Mortgage, which shall not be fully
cured or waived prior to the expiration of such grace period (as
such grace period may be extended);
(h) default in the performance, or breach, of any of the
provisions of Article Four hereof; or
(i) if any representation or warranty of Mortgagor set
forth in this Mortgage or in any notice, certificate, demand or
request delivered to Mortgagee pursuant to this Mortgage shall
prove to be incorrect in any material respect as of the time when
made.
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An Event of Default shall not be deemed to exist by reason
of any event which Mortgagor is contesting in compliance with the
provisions of Section 5.8.
Section 3.2. Acceleration of Maturity;
Recision and Annulment.
If an Event of Default (other than an Event of Default
specified in Section 5.1(f) or (g) of the Trust Indenture) occurs
and is continuing, then, and in every such case, Mortgagee may
declare the Outstanding Amount of the Note to be due and payable
immediately, by a notice in writing to Mortgagor and upon any
such declaration such principal shall become immediately due and
payable. If an Event of Default specified in such Section 5.1(f)
or (g) occurs, the Outstanding Amount of the Note shall ipso
facto become due and payable without any declaration or other act
on the part of the Mortgagee.
If at any time after such declaration of acceleration has
been made, but before any judgment or decree for payment of money
due on the Note has been obtained by the Mortgagee, such
declaration of acceleration and its consequences has been duly
rescinded and annulled in accordance with Section 5.2 of the
Trust Indenture, then the declaration of acceleration pursuant to
this Section 3.2 shall automatically be rescinded and annulled.
No such rescission and annulment shall affect any subsequent
default or impair any right consequent thereon.
Section 3.3. Application of Moneys Received by Mortgagee.
Any moneys received by Mortgagee pursuant to the provisions
of this Article Three (including moneys received by the Trustee
after any action or act by Mortgagee under Section 3.10) shall be
applied by Mortgagee in accordance with the provisions of Section
5.6 of the Trust Indenture.
Section 3.4. Restoration of Rights and Remedies.
If Mortgagee has instituted any proceeding to enforce any
right or remedy under this Mortgage and such proceeding has been
discontinued or abandoned for any reason or has been determined
adversely to Mortgagee, then and in every such case Mortgagor and
Mortgagee shall, subject to any determination in such proceeding,
be restored to their respective former positions hereunder, and
thereafter all rights and remedies of Mortgagee shall continue as
though no such proceeding had been instituted.
Section 3.5. Rights and Remedies Cumulative.
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No right or remedy herein conferred upon or reserved to
Mortgagee is intended to be exclusive of any other right or
remedy, and every right and remedy shall, to the extent permitted
by law, be cumulative and in addition to every other right and
remedy given hereunder or now or hereafter existing at law or in
equity or otherwise. The assertion or employment of any right or
remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
Section 3.6. Delay or Omission Not Waiver.
No delay or omission of Mortgagee to exercise any right or
remedy accruing upon an Event of Default shall impair any such
right or remedy or constitute a waiver of any such Event of
Default or an acquiescence therein. Every right and remedy given
by this Article Three or by applicable law to Mortgagee may be
exercised, from time to time, and as often as may be deemed
expedient, by Mortgagee.
Section 3.7. Undertaking for Costs.
If any action or proceeding shall be commenced (including,
without limitation, an action to foreclose this Mortgage or to
collect the indebtedness secured hereby) to which action or
proceeding Mortgagee is made or becomes a party, or in which it
becomes necessary in the opinion of Mortgagee to defend or uphold
the lien of this Mortgage, Mortgagor shall pay to Mortgagee all
expenses, including, without limitation, reasonable attorneys'
fees, disbursements and court costs incurred by Mortgagee in
connection therewith, together with interest at the rate then
payable on the Note, from the date of payment less the net amount
received by Mortgagee or the Trustee, as their interests may
appear under any title insurance policy, and, until paid, all
such expenses, together with interest as aforesaid, shall be
secured by the lien of this Mortgage.
Section 3.8. Waiver of Appraisement and Other Laws.
To the full extent that it may lawfully so agree, Mortgagor
will not at any time insist upon, plead, claim or take the
benefit or advantage of, any appraisement, valuation, stay,
extension or redemption law now or hereafter in force, in order
to prevent or hinder the enforcement of this Mortgage or the
absolute sale of the Trust Estate, or any part thereof, or the
possession thereof by any purchaser at any sale under this
Article Three; and Mortgagor, for itself and all who may claim
under Mortgagor, so far as Mortgagor or they now or hereafter may
lawfully do so, hereby waives the benefit of all such laws.
Mortgagor, for itself and all who may claim under Mortgagor,
waives, to the extent that Mortgagor may lawfully do so, all
right to have the property in the Trust Estate marshalled upon
any foreclosure hereof, and agrees that any court having
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jurisdiction to foreclose this Mortgage may order the sale of the
Trust Estate as an entirety.
If any law in this Section 3.8 referred to and now in force,
of which Mortgagor or its successor or successors might take
advantage despite this Section 3.8, shall hereafter be repealed
or cease to be in force, such law shall not thereafter be deemed
to constitute any part of the contract herein contained or to
preclude the application of this Section 3.8.
Section 3.9. Entry.
Mortgagor agrees that upon the occurrence, and during the
continuance, of an Event of Default, Mortgagor, upon demand of
Mortgagee, shall forthwith surrender to Mortgagee the actual
possession of, and it shall be lawful for Mortgagee by such
officers or agents as it may appoint to enter and take possession
of, the Trust Estate (and the books and papers of Mortgagor), and
to hold, operate and manage the Trust Estate (including the
making of all needful repairs, and such alterations, additions
and improvements as Mortgagee shall deem wise) and to receive the
rents, issues, tolls, profits, revenues and other income thereof,
and, after deducting the costs and expenses of entering, taking
possession, holding, operating and managing the Trust Estate, as
well as payments for taxes, insurance and other proper charges
upon the Trust Estate and reasonable compensation to itself, its
agents and counsel, to apply the same as provided in Section 3.3;
provided, however, that Mortgagee's rights under this Section 3.9
shall be subject to the provisions of the New Jersey Casino
Control Act and Section 3.14. Whenever all that is then due upon
the Note and under any of the terms of this Mortgage shall have
been paid and all defaults hereunder shall have been cured,
Mortgagee shall surrender possession to Mortgagor.
Section 3.10. Power of Sale; Suits for Enforcement.
If an Event of Default shall occur and be continuing,
Mortgagee, with or without entry, in its discretion, may:
(a) sell, subject to any mandatory requirements of
applicable law, the Trust Estate as an entirety, or in such
parcels, as Mortgagee may determine, to the highest bidder at
public auction at such place and at such time (which sale may be
adjourned by Mortgagee from time to time in its discretion by
announcement at the time and place fixed for such sale, without
further notice) and upon such terms as Mortgagee may fix and
briefly specify in a notice of sale to be published as required
by law; or
(b) proceed to protect and enforce its rights under this
Mortgage by sale pursuant to judicial proceedings or by a suit,
action or proceeding in equity or at law or otherwise, whether
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for the specific performance of any covenant or agreement
contained in this Mortgage or in aid of the execution of any
power granted in this Mortgage or for the foreclosure of this
Mortgage or for the enforcement of any other legal, equitable or
other remedy, as Mortgagee shall deem most effectual to protect
and enforce any of the rights of Mortgagee; the failure to join
tenants shall not be asserted as a defense to any foreclosure or
proceeding to enforce the rights of Mortgagee.
Section 3.11. Incidents of Sale.
Upon any sale of any of the Trust Estate, whether made under
the power of sale hereby given or pursuant to judicial
proceedings, to the extent permitted by law:
(a) the principal of and accrued interest on the Note, if
not previously due, shall at once become and be immediately due
and payable;
(b) subject to the provisions of Section 3.14 and the
receipt of any required prior approvals of the New Jersey Casino
Control Commission, Mortgagee may bid for and purchase the
property offered for sale, and upon compliance with the terms of
sale may hold, retain, possess and dispose of such property,
without further accountability, and may, in paying the purchase
money therefor, deliver the Note or claims for interest thereon
in lieu of cash to the amount which shall, upon distribution of
the net proceeds of such sale, be payable thereon, and the Note,
in case the amounts so payable thereon shall be less than the
amount due thereon, shall be returned to Mortgagee after being
appropriately stamped to show partial payment;
(c) Mortgagee may make and deliver to the purchaser or
purchasers a good and sufficient deed, bill of sale and
instrument of assignment and transfer of the property sold;
(d) Mortgagee is hereby irrevocably appointed the true and
lawful attorney of Mortgagor, in its name and stead, to make all
necessary deeds, bills of sale and instruments of assignment and
transfer of the property thus sold; and for that purpose it may
execute all necessary deeds, bills of sale and instruments of
assignment and transfer, and may substitute one or more persons,
firms or corporations with like power, Mortgagor hereby ratifying
and confirming all that its said attorney or such substitute or
substitutes shall lawfully do by virtue hereof; but if so
requested by Mortgagee or by any purchaser, Mortgagor shall
ratify and confirm any such sale or transfer by executing and
delivering to Mortgagee or to such purchaser or purchasers all
proper deeds, bills of sale, instruments of assignment and
transfer and releases as may be designated in any such request;
(34)
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(e) all right, title, interest, claim and demand
whatsoever, either at law or in equity or otherwise, of Mortgagor
of, in and to the property so sold shall be divested and such
sale shall be a perpetual bar both at law and in equity against
Mortgagor, its successors and assigns, and against any and all
persons claiming or who may claim the property sold or any part
thereof from, through or under Mortgagor, its successors and
assigns; and
(f) the receipt of Mortgagee or of the officer making such
sale shall be a sufficient discharge to the purchaser or
purchasers at such sale for his or their purchase money and such
purchaser or purchasers and his or their assigns or personal
representatives shall not, after paying such purchase money and
receiving such receipt, be obliged to see to the application of
such purchase money, or be in anywise answerable for any loss,
misapplication or non-application thereof.
Section 3.12. Receiver.
Upon the occurrence of an Event of Default and commencement
of judicial proceedings by Mortgagee to enforce any right under
this Mortgage, Mortgagee shall be entitled, as against Mortgagor,
without notice or demand and without regard to the adequacy of
the security for the Note or the solvency of Mortgagor, to the
appointment of a receiver of the Trust Estate, and of the rents,
issues, profits, revenues and other income thereof; provided,
however, that Mortgagee's rights under this Section 3.12 shall be
subject to the provisions of the New Jersey Casino Control Act
and Section 3.14 hereof.
Section 3.13. Suits to Protect the Trust Estate.
Mortgagor hereby acknowledges the right of Mortgagee, in the
name and on behalf of Mortgagor, (a) to appear in and defend any
action or proceeding brought with respect to the Trust Estate or
any part thereof and (b) upon 5 days' prior notice to Mortgagor
(or such shorter period or without notice if deemed necessary and
appropriate by Mortgagee), to institute and to maintain such
proceedings as Mortgagee may deem necessary and appropriate, but
in the case of (a) and (b) only to prevent any impairment of
security or any impairment of the Trust Estate by any acts which
may be unlawful or in violation of this Mortgage and to protect
Mortgagee's interests in the Trust Estate and in the rents,
issues, profits, revenues and other income arising therefrom,
including the right to institute and maintain proceedings to
restrain the enforcement of or compliance with any governmental
enactment, rule or order that may be unconstitutional or
otherwise invalid, if the enforcement of or compliance with such
enactment, rule or order would impair the security hereunder or
be materially prejudicial to the interests of Mortgagee.
(35)
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Section 3.14 Management of the Premises.
Without limiting the generality of any other provision of
this Article Three, following an Event of Default and the taking
of possession of the Trust Estate or any part thereof by
Mortgagee and/or the appointment of a receiver of the Trust
Estate or any part thereof, Mortgagee or any such receiver shall
be authorized, in addition to the rights and powers of Mortgagee
and such receiver set forth elsewhere in this Mortgage, to take
any action permitted under Section 5.17 of the Trust Indenture.
ARTICLE FOUR
CONSOLIDATION, MERGER, CONVEYANCE,
TRANSFER OR LEASE
Section 4.1. Consolidation, Merger, Conveyance
or Transfer only on Certain Terms.
Mortgagor shall comply with all provisions applicable to
Mortgagor in Article Eight of the Trust Indenture.
Section 4.2. Successor Entity Substituted.
Upon any consolidation or merger, or any sale, assignment,
conveyance, transfer or disposition of the Trust Estate or any
portion thereof in accordance with Section 8.1 of the Trust
Indenture (other than a lease), the successor Person formed by
such consolidation or into which Mortgagor is merged or the
successor Person to which such sale, assignment, conveyance,
transfer or disposition is made shall succeed to, and be
substituted for, and may exercise every right and power of,
Mortgagor under this Mortgage with the same effect as if such
successor had been named as Mortgagor herein; and thereafter,
except in the case of a lease, the Person named as "Mortgagor" in
the first paragraph of this instrument or any successor Person
which shall theretofore have become such in the manner prescribed
in this Article shall be discharged from all obligations and
covenants under this Mortgage.
ARTICLE FIVE
COVENANTS AND REPRESENTATIONS OF MORTGAGOR
Section 5.1. Payment of Principal, Premium and Interest.
Mortgagor shall duly and punctually pay the principal of
(and premium, if any) and interest on the Note in accordance with
the terms of the Note and this Mortgage.
(36)
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Section 5.2. F,F&E Financing Agreements.
Mortgagor shall comply with all of the terms and conditions
set forth in any F,F&E Financing Agreements before the expiration
of any applicable notice and cure periods contained in the F,F&E
Financing Agreements.
Section 5.3. Limitations on Liens and Transfers.
(a) Mortgagor shall not create, incur, suffer or permit to
be created or incurred or to exist any mortgage, lien, charge or
encumbrance on or pledge of any of the Trust Estate, other than
(i) Permitted Encumbrances, (ii) a notice of intention filed by a
mechanic, materialman or laborer under the New Jersey mechanic's
lien law, and (iii) a building contract filed by a contractor or
subcontractor under the New Jersey mechanic's lien law. Without
limiting the generality of the foregoing sentence but
notwithstanding the provisions of the foregoing sentence,
Mortgagor shall not be deemed to have breached the provisions of
the foregoing sentence by virtue of the existence of a lien for
Impositions or mechanics' liens so long as Mortgagor is in good
faith contesting the validity of the same in accordance with the
provisions of Section 5.8.
(b) The lien of this Mortgage on the date hereof shall be
subject and subordinate to the lien of any Existing Encumbrances
to the extent that each thereof encumbers Mortgagor's interest in
the Trust Estate or any part thereof. The foregoing provisions
of this Section 5.3(b) shall be self-operative and no further
instrument shall be required to give effect to such
subordination. Mortgagee shall, however, from time to time,
after receipt of a Mortgagor Request therefor (accompanied by a
Mortgagor's Certificate stating that said conditions have been
satisfied) execute instruments in form and substance reasonably
satisfactory to the holder of a particular Superior Mortgage
confirming such subordination.
(c) Except as otherwise expressly permitted under this
Mortgage and the Trust Indenture (including, without limitation,
Article Eight of the Trust Indenture), Mortgagor shall not sell,
assign, lease or otherwise transfer all or any portion of the
Trust Estate or any interest therein. Notwithstanding the
foregoing, Mortgagor shall have the right, at any time and from
time to time, unless an Event of Default shall have occurred and
be continuing, without any release from or consent by Mortgagee,
to grant interests in the Owned Land in the nature of
rights-of-way or easements, or other rights or privileges in the
nature of easements; provided, (i) that none of the same will
reduce or impair, in any material respect, (A) the value or
usefulness of the Trust Estate or any part thereof or (B) the
normal operation of the Casino Hotel in accordance with all Legal
Requirements and all Permits, (ii) Mortgagor has delivered to
(37)
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Mortgagee a Mortgagor's Certificate, dated not earlier than 10
days prior to the date of each such grant, certifying that (A) no
Event of Default has occurred and is continuing and (B) the
conditions set forth in this Section 5.3(c) for such grant have
been fulfilled and (iii) Mortgagor has delivered to Mortgagee a
duplicate original of the instrument, if any, pursuant to which
such grant is to be made, and such other instruments,
certificates and opinions as Mortgagee may reasonably request.
The foregoing provisions of this Section 5.3(c) shall be
self-operative and no further instrument shall be required to
evidence the consent of Mortgagee to the grant or other
conveyance of such rights-of-way or easements. Mortgagee shall,
however, from time to time, after receipt of a Mortgagor Request
therefor (accompanied by a Mortgagor's Certificate stating that
said conditions have been satisfied) execute instruments in form
and substance reasonably satisfactory to Mortgagee confirming the
permissibility of such grant or other conveyance.
Section 5.4. Environmental.
Without limiting the generality of any other provision of
this Mortgage, Mortgagor covenants, represents and warrants to
Mortgagee as follows:
(a) Mortgagor shall comply with any and all federal, state
and local environmental legislation, rules, and regulations in
effect as of the date of this Mortgage and subsequent thereto,
including, without limitation, the Spill Compensation and Control
Act (N.J.S.A. 58:10-23. 11 et seq.) (the"Spill Act"); the
Industrial Site Recovery Act (N.J.S.A. 13:1K-6 et seq.) ("ISRA");
the Solid Waste Management Act (N.J.S.A. 13:E-1 et seq.); the
Resource, Conservation and Recovery Act (42 U.S.C. Section 6901
et seq.) ("RCRA"); the Comprehensive Environmental Response,
Compensation and Liability Act (42 U.S.C. Section 9601 et seq.)
("CERCLA") and such other environmental legislation, rules and
regulations, as are in or may come into effect and apply to (i)
Mortgagor and/or Mortgagee with respect to the Premises or (ii)
the transactions contemplated hereby, and as to any occupants or
users of the collateral, whether as lessees, tenants, licensees
or otherwise, Mortgagor shall use its best efforts to cause same
to comply with said legislation, rules and regulations.
Mortgagor agrees to pay all costs required in connection with
compliance with the foregoing legislation, rules and regulations.
(b) Mortgagor has not used in the past, nor shall Mortgagor
use in the future, the Premises for the purpose of refining,
producing, storing, handling, transferring, processing or
transporting "Hazardous Substances", as such term is defined in
ISRA, the Spill Act, CERCLA or the regulations relating thereto,
except that Mortgagor and its subsidiaries have used, and
Mortgagor may continue in the future to use, substances in the
operation and maintenance of the Premises, including, without
(38)
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limitation, heating oil, gasoline and cleaning chemicals which
could be considered as "Hazardous Substances" under the preceding
definition.
(c) To the best of Mortgagor's knowledge, after due inquiry
and investigation, none of the real property owned, leased and/or
occupied by Mortgagor and located in the State of New Jersey,
including, without limitation, the Premises, has been or is now
being used as a "Major Facility" as such term is defined in
N.J.S.A. 58:10-23.11b(1). Mortgagor will not use the Premises in
the future as a "Major Facility".
(d) To the best of Mortgagor's knowledge, after due inquiry
and investigation, no lien has been attached to any revenues or
any real or personal property owned by Mortgagor or the Premises,
as a result of the Chief Executive of the New Jersey Spill
Compensation Fund expending monies from said fund to pay for
"Cleanup Costs", as such term is defined in N.J.S.A.
58:10-23.11b(d), arising from an intentional or unintentional
action or omission of Mortgagor or any previous owner and/or
operator of such real property.
(e) There is no asbestos or asbestos containing material on
the Premises. To the best of Mortgagor's knowledge, there are no
underground storage tanks located at the Premises, other than
those tanks previously disclosed to Mortgagee and which are
maintained in accordance with all material Legal Requirements.
Mortgagor has not installed or placed, or permitted to be
installed or placed, any underground storage tanks at or on the
Premises, other than those tanks previously disclosed to
Mortgagee and which are maintained in accordance with all
material Legal Requirements. Underground storage tanks shall
have the definition as set forth in N.J.S.A. 58:10A-22(p).
(f) Mortgagor has not received a summons, citation,
directive, letter, other written communication, or, to the best
of its knowledge, any oral communication, from the New Jersey
Department of Environmental Protection and Energy or from any
other person, firm or corporation concerning any intentional or
unintentional action or omission on Mortgagor's part resulting in
the releasing, spilling, leaking, pumping, pouring, emitting,
emptying or dumping of "Hazardous Substances", as such term is
defined in N.J.S.A. 58:10-23.11b(k), into the waters or onto the
lands of the State of New Jersey, or into the waters outside the
jurisdiction of the State of New Jersey, in either case resulting
in damage to the lands, waters, fish, shellfish, wildlife, biota,
air and other resources owned, managed, held in trust or
otherwise controlled by the State of New Jersey.
(g) In connection with any purchase of the Premises or any
business or assets located thereon or any "closing, terminating
or transferring operations" of any "industrial establishment", as
(39)
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that term is defined in ISRA, occurring on or after December 31,
1983, Mortgagor required that the owner and or operator of the
industrial establishment comply with the provisions of ECRA and
the owner and or operator did comply therewith.
(h) Upon the occurrence of an Event (as hereinafter
defined), Mortgagee shall have the right to have its consultants
perform a comprehensive environmental audit of the Premises.
Such audit shall be conducted by an environmental consultant
chosen by Mortgagee and may include a visual survey, a record
review, an area reconnaissance assessing the presence of
hazardous or toxic waste or substances, PCBs or storage tanks at
the Premises, an asbestos survey of the Premises, which may
include random sampling of the improvements and air quality
testing, and such further site assessments as Mortgagee may
reasonably require due to the results obtained from the
foregoing. Mortgagor grants Mortgagee, its agents, consultants
and contractors the right to enter the Premises for the purposes
of performing such studies and the cost of such studies shall be
due and payable by Mortgagor to Mortgagee upon demand and shall
be secured by the lien of this Mortgage. Mortgagee shall direct
the environmental consultant to use its best efforts not to
hinder Mortgagor's or any tenant's operations when conducting
such audit, sampling or inspections. For purposes of this
paragraph, the term "Event" shall mean (i) the occurrence of any
Event of Default, (ii) the issuance of any summons, citation,
directive or similar written notice from the New Jersey
Department of Environmental Protection and Energy or from any
other local, state or federal entity or from any other person,
firm or corporation concerning any alleged material violation of
any and all federal, state and local environmental legislation,
rules and regulations in effect as of the date of this Mortgage
and subsequent thereto or (iii) the initiation of any legal
action, suits or other legal or administrative proceedings
relating to or in connection with any alleged violation of any
and all federal, state and local environmental legislation, rules
and regulations in effect as of the date of this Mortgage and
subsequent thereto.
(i) If a lien shall be filed against the Premises by the
New Jersey Department of Environmental Protection and Energy,
pursuant to and in accordance with the provisions of N.J.S.A.
58:10-23.11f(f), as a result of the Chief Executive of the New
Jersey Spill Compensation Fund having expended monies from said
fund to pay for "Damages", as such term is defined in N.J.S.A.
58:10-23.11g, and/or "Cleanup and Removal-Costs", as such term is
defined in N.J.S.A. 58:10-23(b), arising from an intentional or
unintentional action or omission of Mortgagor resulting in the
releasing, spilling, pumping, pouring, emitting, emptying or
dumping of "Hazardous Substances", as such term is defined in
N.J.S.A. 58:10-23.11(b)k into waters of the State of New Jersey
or onto lands from which it might flow or drain into said waters,
(40)
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then, unless there is a good faith basis for contesting such lien
and Mortgagor is so contesting such lien in accordance with
Section 5.9, Mortgagor shall, within 30 days from the date that
Mortgagor is given notice that the lien has been placed against
the Premises or within such shorter period of time if the State
of New Jersey has commenced steps to cause the Premises to be
sold pursuant to the lien, either (i) pay the claim and remove
the lien from the Premises, or (ii) furnish (A) a bond
satisfactory to a title company selected by Mortgagee (the "Title
Insurer") in the amount of the claim out of which the lien
arises, (B) to the Trustee, a cash deposit (which may be
disbursed by the Trustee in its sole discretion) in the amount of
the claim out of which the lien arises, or (C) other security
reasonably satisfactory to Mortgagee in an amount sufficient to
discharge the claim out of which the lien arises.
(j) Mortgagor shall use its best efforts to cause
compliance by all lessees with all applicable Legal Requirements
relating to environmental protection.
(k) Mortgagor shall promptly provide Mortgagee with copies
of all notices received by or prepared by Mortgagor in connection
with ISRA, CERCLA, the Spill Act, RCRA or any other environmental
law, rule or regulation relating to the Premises. For purposes
of this paragraph, the term "notice" shall mean any summons,
citation, directive, order, claim, pleading, letter, application,
filing, report, findings, declarations or other materials
pertinent to compliance of the Trust Estate and Mortgagor with
such environmental laws, rules or regulations.
(l) If this Mortgage is foreclosed, Mortgagor shall deliver
the Premises in compliance with all applicable federal, state and
local environmental laws, ordinances, rules and regulations,
including, without limitation, ISRA.
(m) Without limiting the generality of Section 5.20,
Mortgagor agrees to defend, indemnify and save Mortgagee harmless
from and against any loss or liability, cost or expense
(including, without limitation, reasonable attorneys' fees,
consultants' fees, disbursements and court costs) arising out of,
or incurred in connection with, Mortgagor's misrepresentation, or
failure promptly (but in no event to exceed the time period
permitted by law) to comply with and perform its obligations,
under this Section 5.4. The provisions of this subsection (m)
shall survive any transfer of the Premises, including a transfer
after a foreclosure of this Mortgage.
Section 5.5. Warranty of Leasehold Estate and Title.
Mortgagor represents and warrants that as of the date
hereof:
(41)
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(a) Mortgagor is duly authorized under the laws of the
State of New Jersey and all other applicable laws to execute and
deliver the Mortgage Documents, and all partnership action on
Mortgagor's part necessary for the valid execution and delivery
of the Mortgage Documents has been duly and effectively taken;
(b) Mortgagor is the lawful owner and is lawfully seized
and possessed of the Owned Land and all buildings and
improvements thereon, free and clear of all liens, charges or
encumbrances, other than the Mortgage Documents and the Existing
Encumbrances;
(c) Mortgagor is the holder of and has good and marketable
title to the leasehold interests and leasehold estates under all
existing Facility Leases, subject to no lien, encumbrance or
charge other than the Mortgage Documents and the Existing
Encumbrances;
(d) (i) each existing Facility Lease is a valid and
subsisting demise of the respective Leased Land for the term
therein set forth, (ii) there are no defaults under any Facility
Lease by any lessor or the lessee as to which written notice has
been given to or by the lessee, (iii) Mortgagor has delivered to
Mortgagee and the Trustee a true and correct copy of each
existing Facility Lease, and all modifications, amendments and
supplements thereto, and (iv) each existing Facility Lease is in
full force and effect and has not been modified, amended or
supplemented, except as described on Schedule 3;
(e) Mortgagor has good title to the Operating Assets,
subject to no lien, encumbrance or charge, other than the
Mortgage Documents and the Existing Encumbrances;
(f) Mortgagor has good and lawful right and authority to
execute this Mortgage and to grant, bargain, sell, alien, convey,
assign, transfer, hypothecate, pledge, mortgage and confirm the
Trust Estate as provided herein (including, without limitation,
with respect to the Operating Assets and Facility Leases),
without the consent of any third party, other than governmental
authorities and certain Superior Mortgage holders and other
secured Persons but any applicable or necessary consent or
approval of any such governmental authority, Superior Mortgage
holders and other such Persons has been given or waived in
accordance with applicable law at or prior to the execution and
delivery of this Mortgage, and this Mortgage constitutes a valid
first mortgage lien and deed of trust and first priority security
interest in the Trust Estate, subject only to Existing
Encumbrances (including, without limitation, the Superior
Mortgages) and the Mortgage Documents; and
(g) (i) all amounts due under the Superior Mortgages and the
instruments secured thereby have been paid to the extent they
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were due and payable to the date hereof, and (ii) there is no
existing default under said Superior Mortgages or instruments, or
in the performance of any of the terms, covenants, conditions or
warranties therein on the part of Mortgagor to be performed and
observed thereunder as to which written notice has been given to
Mortgagor.
Mortgagor hereby does and shall forever warrant and defend
(a) the title to the Trust Estate (including, without limitation,
Mortgagor's leasehold estate under, and the lessee's interests
in, each existing Facility Lease) (subject to Permitted
Encumbrances) and (b) the priority of the lien of the Mortgage
Documents thereon (subject to Permitted Encumbrances other than
Restricted Encumbrances), against the claims and demands of all
persons whomsoever, at Mortgagor's sole cost and expense.
Section 5.6. After-Acquired Property;
Further Assurances; Recording.
All property, real, personal or mixed or any interest
therein (other than Excepted Property), of every kind and
description and wheresoever situate, which may be hereafter
acquired by Mortgagor (including, without limitation, fee title
to any Leased Land) shall immediately upon the acquisition
thereof by Mortgagor, and without any further mortgage,
conveyance or assignment, become subject to the lien of this
Mortgage as fully as though now owned by Mortgagor and covered by
the Granting Clauses. Nevertheless, Mortgagor shall do, execute,
acknowledge and deliver all and every such further acts,
conveyances, mortgages, financing statements and assurances as
Mortgagee shall require for accomplishing the express purposes of
this Mortgage.
Mortgagor shall, as provided in Section 5.12, from time to
time subject to the lien of this Mortgage its right, title and
interest under all Leases.
Mortgagor shall use reasonable efforts to insure that all
Operating Assets (other than Excepted Property) or any interest
therein hereafter acquired by Mortgagor shall be assignable to
Mortgagee, and to the extent such assignment to Mortgagee
requires the consent of any governmental authority or any other
Person, Mortgagor shall use reasonable efforts to obtain such
consent or a waiver thereof.
Mortgagor shall cause this instrument and all other
instruments of further assurance, including all financing
statements and continuation statements covering security
interests in personal property, to be promptly recorded,
registered and filed, and at all times to be kept recorded,
registered and filed, and shall execute and file such financing
statements and cause to be issued and filed such continuation
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statements, all in such manner and in such places as may be
required by law or as requested by Mortgagee to fully preserve
and protect the rights of Mortgagee as a secured party under the
Uniform Commercial Code to all property comprising the Trust
Estate (to the extent a grant of a security interest therein is
governed by the Uniform Commercial Code) and to perfect, preserve
and protect the lien of this Mortgage as a valid direct first
mortgage lien of record and a valid first priority security
interest on the Trust Estate, subject only to Permitted
Encumbrances (including, without limitation, the Superior
Mortgages).
Mortgagor shall pay all filing or recording fees, and all
expenses incident to the execution and delivery of this Mortgage,
any financing statement or continuation statement with respect to
the personal property constituting part of the Trust Estate, and
any instrument of further assurance, and all federal, state,
county and municipal stamp taxes and other taxes, duties,
imposts, assessments and charges arising out of or in connection
with the execution and delivery of the Note, this Mortgage, any
financing statement or continuation statement with respect to the
personal property constituting part of the Trust Estate or any
instrument of further assurance.
Mortgagor shall furnish to Mortgagee promptly after the
acquisition hereafter by Mortgagor of any fee interest or
leasehold interest in real property having a fair market value
exceeding $500,000 (other than Excepted Property) (a) a mortgagee
policy of title insurance on the most recent form of American
Land Title Association standard loan policy, extended coverage,
which policy shall (i) contain all such endorsements and
affirmative insurance, to the extent reasonably applicable, as is
contained in the Original Policy and (ii) evidence that title to
such real property is subject to no liens or encumbrances (other
than Permitted Encumbrances) which would (A) render title
unmarketable or (B) violate any other provision of this Mortgage
or the Trust Indenture, (b) an as-built survey meeting the
"Minimum Standard Detail Requirements for ALTA/ACSM Land Title
Surveys", certified within 60 days prior to the acquisition date
by a surveyor licensed in the State of New Jersey using the same
form of certification as that contained in the surveys of the
Premises delivered to the Trustee on the date of this Mortgage
and (c) a Mortgagor's Certificate certifying that the mortgagee
policy of title insurance and survey delivered pursuant to
clauses (a) and (b) comply, respectively, with the provisions of
such clauses (a) and (b). Upon delivery of all of the items
required under this paragraph, any liens or encumbrances on such
real property shall constitute Permitted Encumbrances hereunder.
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Section 5.7. Payment of Taxes and Certain Claims;
Maintenance of Properties; Compliance with
Legal Requirements and Insurance Requirements.
Mortgagor shall:
(a) subject to the provisions of Section 5.8, pay or cause
to be paid before the date on which any fine, penalty, interest
or cost may be added for nonpayment (but no later than when the
same are payable by Mortgagor pursuant to any Superior Instrument
Requirement), all taxes (including, without limitation, real
estate taxes, personal or other property taxes and all sales,
value added, use and similar taxes), assessments (including,
without limitation, all assessments for public improvements or
benefits, whether or not commenced or completed prior to the date
hereof and whether or not to be completed prior to the
satisfaction of this Mortgage), water, sewer or other rents,
rates and charges, excises, levies, license fees, permit fees,
inspection fees and other authorization fees and other charges,
in each case whether general or special, ordinary or
extraordinary, foreseen or unforeseen, of every character
(including, without limitation, all interest, additions to tax
and penalties thereon), that may be assessed, levied, confirmed
or imposed on or in respect of or be a lien upon (i) the Trust
Estate (including, without limitation, the Leased Land) or any
part thereof or any rent therefrom or any estate right or
interest therein, or (ii) any acquisition, occupancy, use,
leasing, or possession of or activity conducted on the real
property or any part thereof included in the Trust Estate or any
gross receipts thereof or of the rent therefrom (all of the
foregoing being referred to collectively as "Impositions").
Notwithstanding the foregoing or any other provision of this
Mortgage, Mortgagor shall not be required to pay any income,
profits or revenue tax upon the income of Mortgagee, the Trustee
or the Holders nor any franchise, excise, corporate, estate,
inheritance, succession, capital levy or transfer tax of
Mortgagee, the Trustee or the Holders nor any interest, additions
to tax or penalties in respect thereof, unless such tax is
imposed, levied or assessed in substitution for any Imposition
that Mortgagor is required to pay pursuant to this Section 5.7.
Mortgagor shall deliver to Mortgagee, at Mortgagee's request,
official receipts or other proof evidencing payments of any
Impositions in accordance with the requirements of this
Section 5.7. Mortgagor shall not be entitled to any credit for
taxes or assessments paid against the Note;
(b) except for such obsolete property as Mortgagor may
dispose of or replace pursuant to Section 2.2, maintain and keep
all of Mortgagor's properties used or useful in the conduct of
Mortgagor's business, including, without limitation, the Casino
Hotel and all Tangible Personal Property, in such good repair,
working order and condition, except for reasonable wear and use,
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and make or cause to be made all such needful and proper repairs,
renewals and replacements thereto consistent with the standards
of first-class casino and hotel complexes in Atlantic City, New
Jersey;
(c) occupy and continuously operate the Casino Hotel and
keep the Casino Hotel supplied with Tangible Personal Property,
all in a manner consistent with the standards of first-class
casino and hotel complexes in Atlantic City, New Jersey;
(d) subject to the provisions of Section 5.8, (i) comply
with all Legal Requirements and Insurance Requirements, whether
or not compliance therewith shall require structural changes in
the buildings and improvements included in the Trust Estate or
interfere with the use and enjoyment of the Trust Estate or any
part thereof, (ii) procure, maintain and comply with all Permits
required for (1) the use of the Casino as a gaming and gambling
facility, (2) the on-premises consumption of alcoholic beverages
at the Casino Hotel and (3) any other use of the Trust Estate or
any part thereof then being made, and for the proper erection,
installation, operation and maintenance of the improvements or
any part thereof, (iii) comply with all obligations of Mortgagor
under, and keep in full force and effect, all easements which in
any respect inure to the benefit of, or otherwise affect, the
Trust Estate or any part thereof, if the failure to comply with
the same would impair Mortgagee's security hereunder, and (iv)
without limiting the generality of clause (iii), comply with any
instruments of record at the time in force affecting the Trust
Estate or any part thereof, if the failure to comply with the
same would impair Mortgagee's security hereunder. Without
limiting the generality of the foregoing, Mortgagor represents
and warrants that at the time of the execution of this Mortgage,
Mortgagor is in compliance with the requirements of clauses (i),
(ii), (iii) and (iv) above; and
(e) in the event of the passage after the date of this
Mortgage of any law of the State of New Jersey, or any other
governmental entity, changing in any way the laws now in force
for the taxation of mortgages, or debts secured thereby, for
federal, state or local purposes, or the manner of the operation
of any such taxes, so as to affect the interest of Mortgagee, pay
the full amount of such new or additional taxes.
Section 5.8. Permitted Contests.
Notwithstanding anything in this Mortgage to the contrary,
Mortgagor, at Mortgagor's expense, may contest (after prior
notice to Mortgagee) by appropriate legal proceedings conducted
in good faith and with due diligence, the amount or validity or
application, in whole or in part, of any Imposition or lien
therefor or any Legal Requirement or Insurance Requirement or the
application of any instrument of record (including, without
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limitation, any Superior Instrument Requirement) affecting the
Trust Estate or any part thereof or any claims of holders of
F,F&E Financing Agreements, mechanics, materialmen, suppliers, or
vendors or lien therefor, and may withhold payment of the same
pending such proceedings if permitted by law, or make payment
under protest, or defer compliance with any such Legal
Requirement, any such Insurance Requirement or the terms of any
such instrument, and the same shall not be a Default hereunder;
provided, that (a) in the case of any Impositions or lien
therefor or any claims of mechanics, materialmen, suppliers or
vendors or lien therefor, such proceedings shall suspend the
collection thereof from each of Mortgagor, Mortgagee, the
Trustee, the Holders and the Trust Estate, (b) neither the Trust
Estate nor any interest therein would be in any significant
danger of being sold, forfeited, or lost, (c) such action will
not result in (i) the termination of any Facility Lease or (ii)
the holder of any Superior Mortgage having a right to exercise
any rights or remedies thereunder, (d) in the case of a Legal
Requirement, neither the Holders nor Mortgagee shall be in any
significant danger of any civil liability or any danger of any
criminal liability, and the failure of Mortgagor to comply with
such Legal Requirement shall not affect the continuance in good
standing of any Permit or result in the suspension, termination,
non-renewal or material adverse modification of any Permit, and
(e) in the case of an Insurance Requirement, the failure of
Mortgagor to comply therewith shall not affect the validity of
any insurance required to be maintained by Mortgagor hereunder.
Section 5.9. Mechanics' and Other Liens.
Mortgagor shall cause to be removed, either by payment, or
bonding or otherwise, all claims and demands of mechanics,
materialmen, laborers, and others which, if unpaid, might result
in, or permit the creation of, a lien on the Premises and/or
Trust Estate or any part thereof, or on the revenues, rents,
issues, income and profits arising therefrom and in general shall
do or cause to be done everything necessary so that the lien
hereof shall be fully preserved, at the cost of Mortgagor,
without expense to Mortgagee.
Section 5.10. To Insure.
(a) Mortgagor, at Mortgagor's expense, shall maintain with
Insurers:
(i) insurance with respect to Mortgagor's insurable
properties constituting a part of the Trust Estate against
loss or damage by fire, lightning, and other risks from time
to time included under "all-risk" policies and against loss
or damage by sprinkler leakage, water damage, collapse,
malicious mischief and explosion in respect of any steam and
pressure boilers and similar apparatus located on such
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insurable properties, in amounts at all times sufficient to
prevent Mortgagor from becoming a coinsurer within the terms
of the applicable policies, but in any event such insurance
shall be maintained in not less than the greatest of the
following (the "Insurance Amount"): (A) 100% of the then Full
Insurable Value of such insurable properties, determined from
time to time (but not less frequently than once in any 36
calendar months), by an Appraiser or Insurer, (B) the then
Outstanding Amount of Mortgage Debt, including the Note, or
(C) the amount required to be maintained pursuant to the
Superior Instrument Requirements;
(ii) war risk insurance as and when such insurance is
obtainable from the United States of America or any agency
thereof as promptly as reasonably practicable after the same
becomes so obtainable, in an amount not less than the
Insurance Amount, or, if such insurance cannot be obtained
in an amount not less than the Insurance Amount, in such
lesser amount as may then be so obtainable;
(iii) comprehensive general liability insurance,
including, without limitation, blanket contractual liability
coverage, broad form property damage, independent
contractor's coverage and personal injury coverage against
any and all claims arising out of or connected with the
possession, use,, leasing, operation or condition of such
insurable properties, in an amount not less than
$100,000,000 combined single limit coverage for personal
injury and property damage with respect to any one
occurrence, which may be under an umbrella policy. Anything
contained in this clause (iii) to the contrary
notwithstanding, the Superior Instrument Requirements with
respect to the kinds and amount of insurance described in
this clause (iii) shall be satisfied by Mortgagor;
(iv) workers' compensation insurance to the extent
required by law;
(v) business interruption insurance covering not less
than 6 months of loss, provided that, at any time that
Mortgagor is renewing any policy for such insurance or
taking out any new or replacement policy for such insurance
covering a period of less than 12 months, Mortgagor shall
deliver to Mortgagee an Officers' Certificate certifying
that the period of coverage to be maintained by Mortgagor
under such policy is the maximum that can be maintained at
rates determined by Mortgagor to be reasonable for such
coverage;
(vi) to the extent available, flood insurance in an
amount not less than the Insurance Amount, or, if such
insurance cannot be obtained in an amount not less than the
(48)
Insurance Amount, such lesser amount as may then be so
obtainable but in no event less than $100,000,000; and
(vii) such other insurance with respect to such
insurable properties against loss or damage of the kinds (A)
from time to time customarily insured against by persons
owning or using first-class casino and hotel complexes in
Atlantic City, New Jersey and (B) required to be maintained
pursuant to any Superior Instrument Requirements.
Notwithstanding the foregoing, to the extent not violative
of any Superior Instrument Requirements, (A) Mortgagor may
maintain a deductible with respect to the insurance policies
described in clauses (i), (ii), (vi) and (vii) in an amount not
to exceed $250,000, (B) Mortgagor may maintain a deductible with
respect to the insurance policies described in clause (iii) in an
amount not to exceed $500,000, and (C) Mortgagor may maintain a
deductible with respect to the insurance policies described in
clause (v) in an amount not to exceed $1,000,000.
(b) (i) Each policy of insurance maintained by Mortgagor
pursuant to Section 5.10(a) shall, (A) except in the case of
workers' compensation insurance, name Mortgagor as an insured and
shall name as additional insureds (1) Mortgagee and (2) to the
extent required by the Superior Instrument Requirements, the
lessors under any Facility Leases and the holders of the Superior
Mortgages, (B) provide that all insurance proceeds for losses,
except in the case of comprehensive general liability insurance
and workers' compensation insurance or as otherwise provided in
Subsections (d), (e) and (f) of this Section 5.10, be payable
solely to Mortgagee (or if such insurance proceeds are for losses
sustained solely to property covered by a Superior Mortgage, such
other party as is required to receive such proceeds under a
Superior Mortgage), (C) include effective waivers (whether under
the terms of any such policy or otherwise) by the insurer of all
claims for insurance premiums against all loss payees and named
insureds (other than Mortgagor) and all rights of subrogation
against any named insured, (D) except in the case of
comprehensive general liability and workers' compensation
insurance, provide that any losses shall be payable
notwithstanding (1) any act, failure to act, negligence of, or
violation or breach of warranties, declarations or conditions
contained in such policy by Mortgagor or Mortgagee or any other
named insured or loss payee (including, without limitation, (x)
the lessors under the Facility Leases with respect to any Leased
Facilities and (y) the holder of any Superior Mortgage with
respect to the property encumbered thereby), (2) the occupation
or use of the insurable properties for purposes more hazardous
than permitted by the terms of the policy, (3) any foreclosure or
other proceeding or notice of sale relating to the insurable
properties or (4) any change in the title to or ownership or
possession of the insurable properties, (E) contain a
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non-contributory mortgagee clause in favor of Mortgagee, and (F)
provide that if all or any part of such policy is cancelled,
terminated or expires, the insurer will forthwith give notice
thereof to each named insured and loss payee and that no
cancellation, non-renewal, reduction in amount or material change
in coverage thereof shall be effective until at least 30 days
after receipt by each named insured and loss payee of written
notice thereof.
(ii) Mortgagor may effect the insurance required under this
Section 5.10 under blanket and/or umbrella policies covering
properties owned or leased by Affiliates of Mortgagor; provided,
that (A) such policies otherwise comply with this mortgage, (B)
except with respect to flood insurance and earthquake insurance,
provide that the amount of coverage afforded thereunder with
respect to the Trust Estate shall not be reduced by claims
thereunder against such other properties and (C) in the case of
flood insurance provide that the amount of coverage afforded
thereunder with respect to the Trust Estate shall not be reduced
below $100,000,000 by reason of claims thereunder against such
other properties.
(c) Mortgagor shall deliver to Mortgagee duplicate
originals of all insurance policies that Mortgagor is required to
maintain pursuant to this Section 5.10. Mortgagee shall not be
responsible for effecting or renewing any insurance or for the
responsibility or solvency of the insurers.
(d) Mortgagor shall give written notice to Mortgagee
immediately upon obtaining knowledge of any Casualty which (i)
results in damage, loss or destruction in an amount in excess of
$5,000,000 to any buildings or improvements on the Premises
and/or any Tangible Personal Property or (ii) pursuant to any
Superior Instrument Requirement, would require the deposit of
insurance proceeds with the Depositary, or action or proceeding
with respect thereto. Whenever the Superior Instrument
Requirements require or permit the selection of the Depositary by
Mortgagor, Mortgagor shall select the Insurance Trustee as the
Depositary. Within 30 days after any Casualty which results in
any damage, loss or destruction in an amount in excess of
$10,000,000 to any buildings or improvements on the Premises
and/or any Tangible Personal Property, Mortgagor shall deliver to
Mortgagee a certificate of an Architect stating whether, in such
Architect's opinion, applicable Legal Requirements permit the
Restoration of said buildings and improvements for the same uses
and to the same size and quality in all material respects, as
existed immediately prior to the Casualty (and if said
certificate states that Legal Requirements do not permit such
Restoration, said certificate shall describe the manner closest
approximating such criteria to which the buildings and
improvements could be so restored and shall be accompanied by a
Certificate Of Appraised Value dated not more than 10 days prior
(50)
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to delivery setting forth the Appraised Value immediately prior
to the Casualty and the estimated Appraised Value immediately
after the Restoration). If Mortgagor is required to deliver such
Certificates of Appraised Value and if based on such Certificates
of Appraised Value immediately after Restoration, (i) the
aggregate Outstanding Amount of Indebtedness of the Mortgagor
immediately after such Restoration shall exceed the greater of
(A) 80% of the Appraised Value immediately after such Restoration
or (B) the quotient of the Outstanding Amount of Indebtedness of
the Mortgagor immediately prior to such Casualty divided by the
Appraised Value immediately prior to the Casualty multiplied by
the Appraised Value immediately after such Restoration, or (ii)
applicable Legal Requirements do not permit the Restoration of
the Casino Hotel for use as a casino and hotel complex, then, in
either of such events, the proceeds of any insurance shall not be
applied to Restoration but shall instead be paid and delivered to
Mortgagee to the extent of the then Outstanding Amount of the
Note and any other interest or other sums due hereunder or
thereunder to be applied to the satisfaction of this Mortgage to
the extent proceeds are available for such purpose and provided
that no additional sums are due to the Trustee or the Holders
under the Mortgage Notes or the Trust Indenture, the balance of
any net insurance proceeds shall be paid to Mortgagor.
(e) Subject to the provisions of Subsection 5.10(d), if a
Casualty occurs, the following shall apply:
(i) If the cost of Restoration is less than
$10,000,000, the net insurance proceeds shall be paid by
Mortgagee to Mortgagor (unless the Superior Instrument
Requirements provide that the same shall be paid to the
Depositary).
(ii) If the cost of Restoration is $10,000,000 or more
or if the Superior Instrument Requirements provide that the
same shall be paid to the Depositary, the net insurance
proceeds shall be paid by Mortgagee to the Insurance Trustee
(or other Depositary required by the Superior Instrument
Requirements, provided that such Depositary holds such
proceeds in trust for purposes of paying the costs of
Restoration).
(iii) Mortgagor shall commence with reasonable
promptness under the circumstances and thereafter with due
diligence proceed to perform and complete in a good and
workmanlike manner the restoration, repair, replacement or
rebuilding of the damage or destruction resulting from the
Casualty (all such restoration, repair, replacement and
rebuilding following a Casualty or a Taking are referred to
as "Restoration") in accordance with the plans and
specifications submitted to the Insurance Trustee, in
conformance with all Legal Requirements and Superior
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Instrument Requirements, and in accordance with the further
provisions of this Subsection (e), regardless of the extent
of any such Casualty and whether or not net insurance
proceeds, if any, shall be available or, if available, shall
be sufficient, for the purpose of the Restoration. All
Restoration work shall be performed in accordance with the
applicable provisions of Section 5.12 and in conformance
with all Superior Instrument Requirements, Legal
Requirements and Insurance Requirements and, prior to
commencing any Restoration, Mortgagor shall obtain all
Permits necessary in connection therewith, and shall obtain,
and keep in full force and effect until the completion of
such Restoration, such additional insurance as the Insurance
Trustee and Superior Instrument Requirements may require.
The plans and specifications for the Restoration shall be
accompanied by a Mortgagor's Certificate and an Opinion of
Counsel to the effect that upon the completion of the
Restoration pursuant to the plans and specifications, the
Premises and all buildings and improvements thereon will
comply with all Superior Instrument Requirements, Legal
Requirements and Insurance Requirements.
(iv) Any insurance proceeds which Mortgagor receives
shall be held by Mortgagor in trust for the purpose of
paying the cost of the Restoration, except as otherwise
provided herein.
(v) Any net insurance proceeds that the Insurance
Trustee holds pursuant to this Subsection (e), shall be
deposited in an interest-bearing investment reasonably
designated by Mortgagor (to the extent Mortgagor is
permitted to designate such investment under the Superior
Instrument Requirements) (and the interest thereon shall be
added to such proceeds) and shall be paid by the Insurance
Trustee to reimburse Mortgagor for, or to make payment for,
the Restoration, after the Insurance Trustee deducts
therefrom the amount of any reasonable costs and expenses
incurred in connection with the performance of its
obligations under this Section 5.10. The Insurance Trustee
shall make such payments not more frequently than once every
30 days upon the written request of Mortgagor (unless more
frequent payments are required by Superior Instrument
Requirements), by paying to Mortgagor or the persons named
in the certificate described in clause (vi) of this
Subsection (e) the respective amounts stated in such
certificate from time to time as the Restoration progresses,
provided Mortgagor has complied with the requirements of
this Subsection (e) and such payment is permitted by any
applicable Superior Instrument Requirements. Mortgagor's
request shall be accompanied by (A) the certificate
described in clause (vi) of this Subsection (e) and (B) a
title company or official search, or other evidence
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reasonably acceptable to the Insurance Trustee, showing that
there have not been filed with respect to the Premises, any
vendor's, contractor's, mechanic's, laborer's or
materialman's statutory or similar lien which has not been
discharged of record (or bonded against or secured by other
security) or any other encumbrance irrespective of its
priority (other than Permitted Encumbrances).
(vi) The certificate required by clause (v) of this
Subsection (e) shall (A) be a Mortgagor's Certificate,
countersigned by the Architect in charge of the Restoration
with respect to the matters described in (1) and (5) below,
(B) be dated not more than 10 days prior to such request and
(C) set forth (in addition to any other requirements
contained in any applicable Superior Instrument
Requirements) that:
(1) all of the Restoration theretofore performed
is in substantial compliance with the plans and
specifications theretofore submitted to the Insurance
Trustee and in compliance with all Superior Instrument
Requirements, Legal Requirements and Insurance
Requirements;
(2) the sum then requested either has been paid
by Mortgagor or is justly due to contractors,
subcontractors, materialmen, engineers, architects or
other persons who have rendered services or furnished
or contracted to deliver materials for the Restoration
therein specified, and the names and addresses of such
persons, a brief description of such services and
materials and the several amounts so paid or due to
each of said persons in respect thereof;
(3) no part of the amount requested has been or
is the basis in any previous or then pending request
for the withdrawal of net insurance proceeds, and that
the sum then requested does not exceed the value of the
services and materials described in the certificate;
(4) except for the amount, if any, stated
pursuant to subclause (2) of this clause (vi) in such
certificate to be due for services or materials, and
except for amounts in dispute and/or customary
retainages, there is no outstanding indebtedness known
to the person signing such certificate, after due
inquiry, which is then due for labor, wages, materials,
supplies or services in connection with such
Restoration; and
(5) the remaining cost, as estimated by the
persons signing such certificate, of the Restoration in
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order to complete the same does not exceed the net insurance
proceeds remaining in the hands of Insurance Trustee after
payment of the sum requested in such certificate or if such
estimated cost does exceed such insurance proceeds such
certificate shall state the amount of any such deficiency.
If the certificate states that such deficiency will exist,
Mortgagor shall deliver the amount of such deficiency in
cash or cash equivalent to the Insurance Trustee
simultaneously with the delivery of such certificate, which
amount shall be deemed insurance proceeds for purposes of
this Section 5.10(e).
(vii) If net insurance proceeds shall be insufficient
to pay the entire cost of the Restoration, then, after
completion of the Restoration, Mortgagor shall pay the
deficiency. If all or any part of the net insurance
proceeds are not used for the Restoration in accordance with
this Subsection (e) (because such proceeds exceed the amount
required to complete the Restoration), then upon completion
of the Restoration in accordance with this Subsection (e),
such amount not so used, if held by the Insurance Trustee,
shall be paid to Mortgagor (if permitted by Superior
Instrument Requirements).
(f) Mortgagor shall not take out separate insurance,
concurrent in form or contributing in the event of loss with that
required to be maintained pursuant to this Section 5.10, unless
the same is permitted by Superior Instrument Requirements.
Mortgagor shall immediately notify Mortgagee whenever any such
separate insurance is taken out and shall promptly deliver to
Mortgagee a duplicate original of the policy of such insurance, a
copy thereof certified by the insurer or a certificate thereof.
Provided that no Event of Default has occurred and is continuing,
all net business interruption insurance proceeds shall be paid to
Mortgagor, to be segregated from the other funds of Mortgagor and
held in trust by Mortgagor for the following purposes and in the
following order of priority: (i) for the payment of Impositions
and amounts due under the Facility Leases and Superior Mortgages,
(ii) for debt service for the estimated period of Restoration
(for purposes of this Subsection 5.10(f), interest and principal
payments due on any payment date under the Note will be deemed to
accrue in equal daily installments beginning the day after the
immediately preceding payment date and ending on such payment
date), and (iii) for any other expense incurred in connection
with the operation or business of the Casino Hotel.
(g) Insurance claims by reason of damage or destruction to
any portion of the Trust Estate may be adjusted by Mortgagor, but
Mortgagee shall have the right (but not the obligation) to join
Mortgagor in adjusting, and approving the adjustment of, any such
loss except in the event of a loss where the amount of insurance
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reasonably anticipated to be received with respect to such loss
is less than $5,000,000, and Mortgagor shall assist Mortgagee in
any such adjustment at the request of Mortgagee. If Mortgagee at
its election as aforesaid joins Mortgagor in any adjustment
process, then Mortgagee's approval of the adjustment shall not be
unreasonably withheld.
(h) Notwithstanding anything contained herein to the
contrary, if an Event of Default shall have occurred and be
continuing, Mortgagee may, at its option, (A) refrain from paying
to Mortgagor or the Insurance Trustee any net insurance proceeds
or (B) instruct the Insurance Trustee to pay to Mortgagee any
insurance proceeds then held by the Insurance Trustee, as the
case may be.
Section 5.11. Limitations on Building Demolition,
Alterations, Improvements and New Construction.
Mortgagor shall not authorize, permit or make any
demolition, alteration or improvement of any building, structure
or other improvements included in the Trust Estate or any new
construction on any part of the Trust Estate, except in
conformity with and subject to the limitations hereinafter in
this Section 5.11 set forth and set forth in the Trust Indenture.
Unless an Event of Default shall have occurred and be
continuing, Mortgagor shall have the right at all times to make
or permit such demolition, alterations, improvements or new
construction, structural or otherwise (herein sometimes called
collectively "Alterations" and each, individually, an
"Alteration"), of the Trust Estate, to be made in all cases
subject to each of the following conditions:
(a) No Alteration shall be undertaken or carried out except
in conformity with all Superior Instrument Requirements, Legal
Requirements and Insurance Requirements.
(b) If the estimated cost of any Alteration, together with
other Alterations that constitute a single construction plan or
project (whether or not accomplished in several stages or
procedures), exceeds $5,000,000, the building or buildings,
structures or other improvements as so improved or altered, upon
the completion of the work, shall be of a value not less than the
value of such building or buildings, structures or other
improvements immediately prior to the making of such Alteration.
(c) Any Alteration which is structural in nature or
involves an estimated cost of more than $5,000,000 shall be
conducted under the supervision of an Architect, and no such
Alteration shall be undertaken until 10 days after there shall
have been filed with Mortgagee detailed plans and specifications
and cost estimates therefor, prepared and approved in writing by
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such Architect and accompanied by a certificate of such Architect
stating that such plans and specifications conform to all
applicable provisions of this Section 5.11.
(d) No Alteration involving an estimated cost of more than
$5,000,000 shall be undertaken until Mortgagor has furnished to
Mortgagee, at Mortgagor's sole cost and expense, a surety bond or
bonds, covering performance, and labor and material payments with
respect to the work to be so performed, naming Mortgagee as
obligee, issued by a responsible surety company, authorized to do
business in the State of New Jersey, in a form generally and
customarily used by such surety in an amount equal to the
estimated cost of construction of the work covered by the plans
and specifications therefor, guaranteeing the performance and
completion of such construction, substantially in conformity with
the said plans and specifications and within a reasonable time,
subject to delays by fire, strikes, lock-out, acts of God,
inability to obtain labor or materials, governmental
restrictions, enemy action, civil commotion or unavoidable
Casualty or other similar causes beyond the control of Mortgagor,
free and clear of all liens, claims and liabilities for the cost
of such Alterations. If such surety bond or bonds shall be
unobtainable Mortgagor shall deliver to Mortgagee security by
cash, letter of credit or other guarantee, affording
substantially the same protection as would such bond or bonds.
(e) All work done in connection with any Alterations shall
be done promptly and in good and workmanlike manner. The work in
connection with any Alteration shall be prosecuted with
reasonable dispatch, delays due to fire, strikes, lock-outs, acts
of God, inability to obtain labor or materials, governmental
restrictions, enemy action, civil commotion or unavoidable
Casualty or similar causes beyond the control of Mortgagor
excepted.
(f) If the estimated cost of Alterations exceeds
$5,000,000, Mortgagor shall have delivered to Mortgagee (i) prior
to the commencement of such Alterations, copies of all Permits
required for the commencement of such work together with a
certificate of the Architect or an Opinion of Counsel to the
effect that all Permits required for the commencement of such
Alterations have been obtained; and (ii) within a reasonable
period of time after the completion of the Alterations, copies of
all Permits required in connection with the completion thereof,
together with either an Opinion of Counsel or a certificate of
the Architect that all such Permits have been so obtained by
Mortgagor and that Mortgagor has complied with all the
requirements of this Section 5.11.
(g) No Alterations of any kind shall be made which shall
change the use or reduce the size or quality of any building,
structure or other improvements in any material respect or which
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shall change the use of the Casino Hotel from its use as a gaming
and hotel facility.
(h) No Alterations costing in excess of $5,000,000,
together with other Alterations that constitute a single
construction plan or project (whether or not accomplished in
several stages or procedures), shall be made if such Alterations
are not expected to be completed at least 120 days prior to the
Stated Maturity of the Note (except if such Alterations are
required in order to comply with Legal Requirements or Superior
Instrument Requirements).
(i) Mortgagor shall maintain at all times during the
performance of Alterations, in addition to any insurance required
to be maintained under Section 5.11 hereof, appropriate workers'
compensation insurance covering all persons employed for such
Alterations to the extent required by applicable law, and
comprehensive general liability insurance expressly covering the
additional hazards due to such Alterations. Each such policy of
insurance shall comply with the provisions of Section 5.10(b),
and Mortgagor shall comply with Subsections (c), (d), (e), (f),
(g) and (h) of Section 5.10 in connection with all such
insurance.
Section 5.12. Leases.
Mortgagor shall not:
(a) lease the Trust Estate substantially as an entirety to
any Person (except in accordance with the provisions of Article
Eight of the Trust Indenture), nor shall Mortgagor lease either
the Casino Hotel or the Casino or the Hotel or any parking
facilities substantially as an entirety to any Person;
(b) enter into any Lease, or renew, modify, extend,
terminate, or amend any Lease, except in the ordinary course of
business of operating the Casino Hotel;
(c) receive or collect, or permit the receipt or collection
of, any rental payments under any Lease more than one month in
advance of the respective periods in respect of which they are to
accrue, except that, in connection with the execution and
delivery of any Lease or of any amendment to any Lease, rental
payments thereunder may be collected and received in advance in
an amount not in excess of three months' rent and/or a security
deposit may be required thereunder in an amount not exceeding one
year's rent;
(d) collaterally assign, transfer or hypothecate (other
than to Mortgagee hereunder, to the holder of the Guarantee
Mortgage or to the holder of any other Superior Mortgage, but in
each case only with respect to the property secured by such
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mortgage) (i) any rental payment under any Lease whether then due
or to accrue in the future, (ii) the interest of Mortgagor as
landlord under any Lease or (iii) the rents, issues or profits of
the Trust Estate;
(e) after the date hereof, enter into any Lease, or renew
any Lease, unless such Lease contains terms to the effect as
follows:
(i) the Lease and the rights of the tenants thereunder
shall be subject and subordinate to the rights of Mortgagee
under this Mortgage and the holders of any Superior
Mortgage,
(ii) the Lease may be assigned by the landlord
thereunder to Mortgagee, and
(iii) the rights and remedies of the tenant in respect
of any obligations of the landlord thereunder shall be
nonrecourse as to any assets of the landlord other than its
equity in the building in which the leased premises are
located or the proceeds thereof; or
(f) modify any Lease with respect to the matters described
in clauses (i) through (iii) of paragraph (e).
If Mortgagor enters into a Lease (other than with an
Affiliate of Mortgagor) for a term of not less than 3 years,
Mortgagee shall deliver a non-disturbance and attornment
agreement substantially in the form of Schedule 7 hereto,
following receipt of a certificate of a leasing broker (who is
not an Affiliate of Mortgagor or the broker involved in such
transaction) experienced with respect to leases of commercial
space in the Atlantic City area stating that the rent under the
Lease throughout the term thereof is not less than fair market
rent and the other terms of the Lease are fair and reasonable in
the commercial leasing market. Mortgagor shall, upon demand,
reimburse Mortgagee for any costs and expenses (including
reasonable attorneys' fees and disbursements) incurred by
Mortgagee in connection with the preparation, review and delivery
of such non-disturbance and attornment agreements.
Promptly after the execution and delivery hereof, Mortgagor
shall cause the lessee under each Lease now in effect, and
promptly after each Lease is executed or becomes effective after
the date of the execution and delivery hereof, Mortgagor shall
cause the lessee under each such Lease, to be duly notified in
writing (unless the substance and effect of such notice shall be
contained in such Lease) of the subjection of the owner's
interest, as lessor, in and to such Lease to the lien of this
Mortgage and of the name and address of Mortgagee. Each such
notice shall state that the lease of such lessee is a Lease as
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herein defined. If a new Mortgagee is at any time appointed
hereunder or the address of Mortgagee shall at any time be
changed, Mortgagor shall cause each lessee under each Lease to be
promptly notified in writing of the name and address of such new
Mortgagee or the new address of Mortgagee. Mortgagor shall use
reasonable efforts (but shall not be obligated to incur any
expenditure other than de minimis amounts) to obtain from each
lessee under each Lease to whom any notice is sent pursuant to
this paragraph an acknowledgment of receipt of such notice, and
Mortgagor shall promptly deliver to Mortgagee,, upon request, a
copy of each such acknowledgment of receipt which it is able to
obtain. Mortgagee shall not be responsible for securing or
causing Mortgagor to secure any such acknowledgment.
Section 5.13. Compliance Certificates.
Mortgagor shall deliver to Mortgagee, within 120 days after
the end of each fiscal year of Mortgagor, an Mortgagor's
Certificate stating that
(a) a review of the activities of Mortgagor during such
year and of performance under this Mortgage has been made under
the signer's supervision, and
(b) to the best of each signer's knowledge, based on such
review, Mortgagor has fulfilled all of Mortgagor's obligations
under this Mortgage throughout such year, or, if there has been a
default in the fulfillment of any such obligation, specifying
each such default known to him and the nature and status thereof.
Promptly after Mortgagor may reasonably be deemed to have
knowledge of a default hereunder, Mortgagor shall deliver to
Mortgagee a notice specifying the nature and period of existence
thereof and the action Mortgagor is taking and proposes to take
with respect thereto.
Section 5.14. To Keep Books; Inspection by Mortgagee.
Mortgagor will keep proper books of record and account, in
which full and correct entries shall be made of all dealings or
transactions of or in relation to the Note and the properties,
business and affairs of Mortgagor in accordance with generally
accepted accounting principles consistently applied. Said books
shall be maintained in an office located either in Atlantic City,
New Jersey or in the Borough of Manhattan, City of New York,
State of New York. Mortgagor shall at any and all times, upon
request of Mortgagee and at the expense of Mortgagor, permit
Mortgagee and its representatives to inspect the Casino Hotel and
any other buildings, structures and improvements now or hereafter
located on the Land and the books of account, records, reports
and other papers of Mortgagor, and to make copies and extracts
therefrom, and will afford and procure a reasonable opportunity
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to make any such inspection (provided, that any such inspection
shall not unreasonably interfere with the business operations of
Mortgagor), and Mortgagor will furnish to Mortgagee any and all
information as Mortgagee may reasonably request, with respect to
the performance by Mortgagor of its covenants in this Mortgage.
Section 5.15. Advances by Mortgagee.
If Mortgagor shall fail to perform any of the covenants,
terms, provisions or conditions contained in this Mortgage and
such failure shall continue for 10 days following notice thereof
given by Mortgagee (or at any time, without notice, in case of
emergency), Mortgagee may (but is not obligated to), at any time
and from time to time, take any action or make advances, to
effect performance of any such covenant, term, provision or
condition on behalf of Mortgagor; and all moneys so used, paid or
advanced by Mortgagee and all reasonable costs and expenses
incurred by Mortgagee in connection therewith, together with
interest on all of the same at the rate of interest set forth in
the Note, shall be immediately due and payable by Mortgagor to
Mortgagee and all such moneys, costs and expenses shall be
secured by the lien of this Mortgage prior to the Note. No such
advance or payment by Mortgagee shall relieve Mortgagor from any
default hereunder or impair any right or remedy of Mortgagee.
Section 5.16. Waiver of Stay, Extension or Usury Laws.
Mortgagor covenants (to the extent that it may lawfully do
so) that it will not at any time insist upon, or plead, or in any
manner whatsoever claim or take the benefit or advantage of, any
usury, stay or extension law or any other law which would
prohibit or forgive Mortgagor from paying all or any portion of
the obligations secured by this Mortgage, wherever enacted, now
or at any time hereafter in force, or which may otherwise affect
the covenants or the performance of this Mortgage; and Mortgagor
(to the extent that it may lawfully do so) hereby expressly
waives all benefit or advantage of any such law, and covenants
that it shall not hinder, delay or impede the execution of any
power herein granted to Mortgagee, but shall suffer and permit
the execution of every such power as though no such law had been
enacted.
Section 5.17. Eminent Domain.
(a) Mortgagor shall notify Mortgagee immediately upon
obtaining knowledge of any Taking affecting the Trust Estate or
any part thereof. If the Taking is a Taking of less than the
whole or substantially all of the Premises but (i) is estimated
to result in an award of more than $10,000,000 or (ii) the Taking
will interfere with or adversely affect the operation of the
Casino Hotel (other than any portion thereof consisting solely of
unimproved, paved or unpaved surface parking) other than to a de
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minimis extent, then within 30 days after such Taking, Mortgagor
shall deliver to Mortgagee a certificate of an Architect stating
whether, in such Architect's opinion, applicable Legal
Requirements permit the Restoration of any buildings and
improvements for the same uses and to the same size and quality
in all material respects as existed immediately prior to the
Taking (and if said certificate states that Legal Requirements do
not permit such Restoration, said certificate shall describe the
manner closest approximating such criteria to which the buildings
and improvements could be so restored and shall be accompanied by
a Certificate of Appraised Value dated not more than 10 days
prior to delivery setting forth the Appraised Value immediately
prior to the Taking and the estimated Appraised Value immediately
after the permitted Restoration). If Mortgagor is required to
deliver such Certificate of Appraised value and if based on such
Certificate of Appraised Value immediately after Restoration, (i)
the Outstanding Amount of Indebtedness of the Partnership
immediately after such Restoration shall exceed the greater of
(A) 80% of the Appraised Value immediately after such Restoration
or (B) the quotient of the Outstanding Amount of Indebtedness of
the Partnership immediately prior to such Taking divided by the
Appraised Value immediately prior to the Taking multiplied by the
Appraised Value immediately after such Restoration, or (ii)
applicable Legal Requirements do not permit the Restoration of
the Casino Hotel for use as a casino and hotel complex, then, in
any of such events, the Taking shall be deemed a Taking of "the
whole or substantially all of the Premises." The Taking shall be
deemed a Taking of "less than the whole or substantially all of
the Premises" if Mortgagor is not required to deliver a
Certificate Of Appraised Value or if, at the time of delivery of
such Certificate, neither of the tests set forth in clauses (i)
and (ii) is met.
(b) If at any time there shall occur a Taking of less than
the whole or substantially all of the Premises and the award or
awards resulting therefrom payable to Mortgagor (and not to any
lessor under any Facility Lease or the holder of any Superior
Mortgage) (after there shall have been first deducted the fees
and expenses incurred in connection with the termination,
settlement and collection of such award or awards, including,
without limitation, reasonable counsel fees and expenses,
hereinafter referred to as "Settlement Costs") (i) shall be less
than $10,000,000 (except to the extent that the Insurance Trustee
or a Depositary is required to hold such amount pursuant to a
Superior Instrument Requirement), the entire amount of such award
shall be paid to Mortgagor; and (ii) if such award is $10,000,000
or more, the entire amount of such award shall be paid to the
Insurance Trustee (or other Depositary required by a Superior
Mortgage, provided that such Depositary holds such award in trust
for purposes of paying the cost of Restoration). In either
event, such awards shall be applied to the cost of Restoration of
the Trust Estate as nearly as practicable to their uses, value
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and condition immediately prior to the Taking (except to the
extent otherwise provided by Superior Instrument Requirements).
Mortgagor shall promptly commence and with due diligence perform
the Restoration in accordance with clauses (iii), (iv) and (vii)
of Subsection 5.10(e) (after substituting the words "Taking" for
"Casualty" and "award" for "net insurance proceeds"), at no cost
to Mortgagee. All claims or suits arising out of any Taking may
be settled by Mortgagor, except that Mortgagee shall have the
right (but not the obligation) to participate in such claim or
suit, and to approve settlement thereof (and notwithstanding
anything in the Facility Leases to the contrary, Mortgagor shall
not agree to any settlement or compromise of the amount of any
such claim or suit, except a claim or suit where the amount
reasonably anticipated to be received by Mortgagor is less than
$5,000,000). If Mortgagee at its election as aforesaid joins
such claim or suit, Mortgagee's approval of such settlement shall
not be unreasonably withheld. The Insurance Trustee shall
promptly pay such sums as are received by it from such Taking
from time to time in accordance with the procedures set forth in
clauses (v) and (vi) of Subsection 5.10(e) (after substituting
the words "Taking" for "Casualty" and "award" for "net insurance
proceeds").
(c) If at any time there shall occur a Taking of the whole
or substantially all of the Premises, then the award payable to
Mortgagor shall not be applied to Restoration but shall instead
be paid and delivered to the Trustee (subject to the rights of
the lessors under any Facility Leases and the holders of any
Superior Mortgages) to the extent of the then Outstanding Amount
of the Note and any other interest or other sums due hereunder or
thereunder to be applied to the satisfaction of this Mortgage to
the extent proceeds are available for such purpose and provided
that no additional sums are due the Trustee or the Holders under
the Mortgage Notes or the Trust Indenture, the balance of any
award shall be paid to Mortgagor.
(d) Notwithstanding anything contained herein to the
contrary, if an Event of Default shall have occurred and is
continuing, Mortgagee may, at its option, (i) refrain from paying
to Mortgagor or the Insurance Trustee any award or (ii) instruct
the Insurance Trustee to pay to Mortgagee any award then held by
the Insurance Trustee, as the case may be.
Section 5.18. Facility Leases.
(a) Mortgagor shall do or cause to be done all things
necessary to preserve and keep unimpaired the rights of
Mortgagor, as lessee under all Facility Leases, and, to prevent
any termination, surrender, cancellation, forfeiture or
impairment of any thereof. Mortgagor shall at all times fully
perform and comply with all agreements, covenants, terms and
conditions imposed upon or assumed by it as lessee under each of
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the Facility Leases (including, without limitation, the covenant
to pay rent and all taxes, assessments and other charges
mentioned therein) prior to the expiration of any notice and/or
cure period provided in each such Facility Lease. Upon receipt
by Mortgagee from a Lessor of any written notice of default by
the lessee thereunder, Mortgagee may rely thereon and take any
action Mortgagee deems necessary in its sole discretion to
prevent or to cure any default by Mortgagor in the performance of
or compliance with any of the agreements, covenants, terms or
conditions imposed upon or assumed by Mortgagor as lessee under
such Facility Lease, even though the existence of such default or
the nature thereof be questioned or denied by Mortgagor or by any
party on behalf of Mortgagor. Without limiting the generality of
Section 3.9, Mortgagor hereby expressly grants to Mortgagee, and
agrees that Mortgagee shall have, the absolute and immediate
right to enter in and upon the Premises or any part thereof to
such extent and as often as Mortgagee, in its sole discretion,
deems necessary or desirable for the purpose permitted by the
immediately preceding sentence, subject only to applicable Legal
Requirements. Without limiting Mortgagor's obligations or
Mortgagee's rights set forth above or limiting Mortgagee's other
remedies under this Mortgage, Mortgagee may pay and expend such
sums of money as Mortgagee in its sole discretion deems necessary
for any such purpose, and Mortgagor hereby agrees to pay to
Mortgagee immediately and without demand, all such sums referred
to above, so paid and expended by Mortgagee, together with
interest thereon from the date of each such payment at the
highest rate of interest set forth in the Note. All sums so paid
and expended by Mortgagee, and the interest thereon, shall be
added to and be secured by the lien of this Mortgage.
(b) Mortgagor further covenants and agrees as follows:
(i) Mortgagor shall not surrender, terminate or cancel
any Facility Lease, and shall not without the consent of
Mortgagee modify, change, supplement, alter or amend any
Facility Lease either orally or in writing if an impairment
of the security granted under this Mortgage would result
therefrom. As further security for the repayment of the
indebtedness secured hereby and for the performance of the
covenants herein and in each Facility Lease contained,
Mortgagor hereby assigns to Mortgagee all of Mortgagor's
rights, privileges and prerogatives as lessee under each
Facility Lease to terminate, cancel, modify, change,
supplement, alter or amend such Facility Lease and any such
termination, cancellation, modification, change, supplement,
alteration or amendment of a Facility Lease without the
prior consent thereto by Mortgagee shall be void and of no
force and effect. Unless (1) an Event of Default has
occurred and is continuing and (2) either (A) there has been
an acceleration of maturity of the Note pursuant to Section
3.2 or (B) Mortgagee exercises its rights under Section 3.9,
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Mortgagee shall have no right to terminate, cancel, modify,
change, supplement, alter or amend any Facility Lease.
(ii) Solely for the benefit of Mortgagee, Trustee, the
Holders and no other person, no release or forbearance of
any of Mortgagor's obligations under any Facility Lease,
pursuant to such Facility Lease or otherwise, shall release
Mortgagor from any of Mortgagor's other obligations under
this Mortgage.
(iii) Unless Mortgagee shall otherwise expressly
consent in writing, the fee title to the Leased Facilities
and Mortgagor's leasehold estates therein shall not merge
and shall always remain separate and distinct,
notwithstanding the union of said estates either in the
Lessor or in the lessee, or in a third party by purchase or
otherwise
(iv) Mortgagor shall promptly notify Mortgagee in
writing of any request made by Mortgagor, as lessee under
any Facility Lease, or any of the Lessors, for arbitration
proceedings under any Facility Lease and of the institution
of any arbitration proceedings, as well as all proceedings
thereunder. Mortgagor shall promptly deliver to Mortgagee a
copy of the determination of the arbitrators in each such
arbitration proceeding. Mortgagee shall have the right to
participate in such arbitration proceedings in association
with Mortgagor or on its own behalf as an interested party.
(v) Mortgagor shall not consent to the subordination
of any Facility Lease to any mortgage, deed of trust or
other lien on the fee interest of the Lessor.
(vi) If Mortgagor acquires fee simple title or any
other estate, title or interest in any Leased Facility,
Mortgagor shall promptly notify Mortgagee of such
acquisition and, on request by Mortgagee, shall cause to be
executed and recorded all such other and further assurances
or other instruments in writing as may in the opinion of
Mortgagee be required or desirable to carry out the intent
and meaning of clause (x) of Granting Clause Third.
(vii) Within 5 days after Mortgagor's receipt of any
notice of any motion, application or effort to reject any
Facility Lease by any Lessor or any trustee arising from or
in connection with any case, proceeding or other action
commenced or pending by or against any Lessor under the Code
or any comparable provision contained in any present or
future federal, state, local, foreign or other statute, law,
rule or regulation ("Comparable Provision"), Mortgagor shall
give notice thereof to Mortgagee. Mortgagor hereby (A)
assigns to Mortgagee any and all of Mortgagor's rights as
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lessee under Section 365(h) of the Code or any Comparable
Provision and (B) covenants that it shall not elect to treat
any Facility Lease as terminated pursuant to Section 365(h)
of the Code or any Comparable Provision without the prior
consent of Mortgagee and (C) agrees that any such election
by Mortgagor without such consent shall be null and void.
(viii) Without limiting the generality of the
foregoing, to the extent permitted by applicable law,
Mortgagor hereby unconditionally assigns, transfers and sets
over to Mortgagee all of Mortgagor's claims and rights to
the payment of damages arising from any rejection by Lessor
of any Facility Lease under the Code or any Comparable
Provision. Mortgagee shall have the right to proceed in its
own name or in the name of Mortgagor in respect of any
claim, suit, action or proceeding relating to the rejection
of any Facility Lease, including, without limitation, the
right to file and prosecute, in cooperation with Mortgagor,
any proofs of claim, complaints, motions, applications,
notices and other documents, in any case in respect of
Lessor under the Code or any Comparable Provision. This
assignment constitutes a present, irrevocable and
unconditional assignment of the foregoing claims, rights and
remedies, and shall continue in effect until all of the
indebtedness and obligations secured by this Mortgage shall
have been satisfied and discharged in full. Any amounts
received by Mortgagee in damages arising out of the
rejection of any Facility Lease as aforesaid shall be
applied first to all reasonable costs and expenses of
Mortgagee (including, without limitation, reasonable
attorneys' fees, disbursements and court costs) incurred in
connection with the exercise of any of its rights or
remedies under this Section 5.18, and thereafter as provided
in Section 3.3.
(ix) If there shall be filed by or against Mortgagor a
petition under the Code or any Comparable Provision and
Mortgagor, as lessee under any Facility Lease, shall
determine to reject such Facility Lease, Mortgagor shall
give Mortgagee not less than 10 days' prior notice of the
date on which Mortgagor shall apply to the Bankruptcy Court
or other judicial body with appropriate jurisdiction for
authority to reject such Facility Lease. Mortgagee shall
have the right, but not the obligation, to serve upon
Mortgagor within such 10-day period a notice stating that
(a) Mortgagee demands that Mortgagor assume and assign such
Facility Lease to Mortgagee pursuant to Section 365 of the
Code or any Comparable Provision and (b) Mortgagee covenants
to cure or provide adequate assurance of prompt cure of all
defaults and provide adequate assurance of future
performance under such Facility Lease. If Mortgagee serves
upon Mortgagor the notice described in the preceding
(65)
<PAGE>
sentence, Mortgagor shall not seek to reject such Facility
Lease and shall comply with the demand provided for in
clause (a) of the preceding sentence within 30 days after
the notice shall have been given subject to the performance
by Mortgagee of the covenant provided for in clause (b) of
the preceding sentence. The foregoing provisions of this
Section 5.18(ix) shall not apply to the extent not permitted
by applicable law. Effective upon the entry of an order for
relief in respect of Mortgagor under Chapter 7 of the Code
or any Comparable Provision, Mortgagor hereby assigns and
transfers to Mortgagee a non-exclusive right to apply to the
Bankruptcy Court or other judicial body with appropriate
jurisdiction for an order extending the period during which
such Facility Lease may be rejected or assumed.
(x) Mortgagor shall promptly give to Mortgagee copies
of (A) all notices of default and (B) any other
communications or notices with respect to events that relate
to the possible impairment of the security of this Mortgage,
which Mortgagor shall give or receive under any Facility
Lease and shall promptly notify Mortgagee of any default
under any Facility Lease on the part of the Lessor or
Mortgagor.
(xi) Mortgagor shall enforce with due diligence all of
the obligations of the Lessor under each Facility Lease, to
the end that Mortgagor may enjoy all of the rights and
privileges granted to it under the Facility Leases.
(xii) Mortgagor shall notify Mortgagee within 5 days
after the transfer of a fee interest in any Leased Facility
or any portion thereof to or from an Affiliate.
(xiii) No Affiliate of Mortgagor shall at any time
hereafter acquire fee title to the Leased Land or any
portion thereof unless simultaneously with such acquisition
such Affiliate and Mortgagor execute and exchange (and
deliver to the Trustee an executed counterpart of) an
instrument in form and substance satisfactory to Mortgagee
providing that so long as such Affiliate owns such fee title
(A) such Affiliate shall not terminate the applicable
Facility Lease for any reason whatsoever (including, without
limitation, due to the default of Mortgagor under such
FacilitY Lease) and (B) such Affiliate shall not accept,
and, if tendered by Mortgagor shall promptly return to
Mortgagor, any payment of rent or other charges payable
under such Facility Lease in excess of the amount required
to pay the debt service and other sums payable under any
mortgage affecting such Affiliate's fee interest in the
applicable Leased Facility (and such Affiliate shall use
such funds only to pay its debt service obligations and
other sums payable under such mortgage) at any time that an
(66)
<PAGE>
Event of Default, or a Default of the types described in
Section 3.1(a), (b) and (f) of this Mortgage or Section
5.1(a), (b), (f) or (g) of the Trust Indenture, shall have
occurred and be continuing under this Mortgage or the Trust
Indenture.
(c) Subject to the provisions of Subsection 5.18(b)(iii),
if both the lessor's and lessee's estates under any Facility
Lease or any portion thereof shall at any time become vested in
one owner, this Mortgage and the lien created hereby shall
nevertheless not be destroyed or terminated by application of the
doctrine of merger and, in such event, Mortgagee shall continue
to have all of the rights and privileges of a first leasehold
mortgagee.
(d) Mortgagor hereby acknowledges that if any Facility
Lease shall be terminated prior to the natural expiration of its
term due to default by the lessee thereunder, and if pursuant to
such Facility Lease, Mortgagee or its designee shall acquire from
the Lessor a new lease of the Leased Facility or any portion
thereof, Mortgagor shall have no right, title or interest in or
to such lease or the leasehold estate created thereby, or the
options therein contained.
(e) Each Facility Lease hereafter entered into or assumed
by Mortgagor as lessee or sublessee shall contain provisions (i)
permitting the assignment of the same to Mortgagee and the
Trustee and permitting assignment without the lessor's consent if
this Mortgage is foreclosed; and (ii) providing protection to
Mortgagee, as leasehold mortgagee, in form reasonably
satisfactory to Mortgagee.
Section 5.19. Superior Mortgages.
(a) Mortgagor shall at all times fully perform and comply
with all agreements, covenants, terms and conditions imposed upon
or assumed by it as mortgagor under the Superior Mortgages prior
to the expiration of any notice and/or cure period provided in
each such Superior Mortgage. If a notice of default has been
given by the holder of any Superior Mortgage, Mortgagee may rely
thereon and take any action Mortgagee deems necessary in its sole
discretion to prevent or to cure any default by Mortgagor in the
performance of or compliance with any of the agreements,
covenants, terms or conditions imposed upon or assumed by
Mortgagor as mortgagor under each of the Superior Mortgages even
though the existence of such default or the nature thereof be
questioned or denied by Mortgagor or by any party on behalf of
Mortgagor. Without limiting the generality of Section 3.9,
Mortgagor hereby expressly grants to Mortgagee, and agrees that
Mortgagee shall have, the absolute and immediate right to enter
in and upon the Premises or any part thereof to such extent and
as often as Mortgagee, in its sole discretion, deems necessary or
(67)
<PAGE>
desirable for the purpose permitted by the immediately preceding
sentence, subject only to applicable Legal Requirements. Without
limiting Mortgagor's obligations or Mortgagee's rights set forth
above or limiting Mortgagee's other remedies under this Mortgage,
Mortgagee may (i) pay and expend such sums of money as Mortgagee
in its sole discretion deems necessary or desirable for any such
purpose and (ii) in its sole discretion prepay any Superior
Mortgage then in default, and Mortgagor hereby agrees to pay to
Mortgagee immediately and without demand, all such sums referred
to in (i) and (ii) above so paid and expended by Mortgagee,
together with interest thereon from the date of each such payment
at the highest rate of interest set forth in the Note. All sums
so paid and expended by Mortgagee and the interest thereon, shall
be added to and be secured by the lien of this Mortgage.
(b) Mortgagor further covenants and agrees:
(i) Mortgagor shall not, without first obtaining the
consent of Mortgagee in each instance: (A) modify, replace
or refinance any Superior Mortgage if (x) the collateral
securing the lien thereof would be increased thereby (other
than after-acquired property required by the terms of such
Superior Mortgage to be encumbered thereby) or (y) such
modification, replacement or refinancing violates any other
provision of this Mortgage or the Trust Indenture or (B)
acquire or permit or suffer any Affiliate of Mortgagor to
acquire any Superior Mortgage or any interest therein;
(ii) Mortgagor shall timely pay and perform all of the
obligations to be paid or performed by the mortgagor under
each Superior Mortgage, the note secured thereby and any
other instrument evidencing or securing the indebtedness
owing to any holder of any Superior Mortgage;
(iii) at any time and from time to time, Mortgagor
shall upon request of Mortgagee promptly use its reasonable
efforts to obtain an estoppel certificate or letter
addressed to Mortgagee from holders of the Superior
Mortgages, such certificate or letter to be in such form as
Mortgagee shall reasonably request;
(iv) Mortgagor shall promptly give to Mortgagee copies
of (A) all notices of default or (B) any other notice or
communication with respect to events which relate to the
possible impairment of the security of this Mortgage, which
Mortgagor shall give or receive under the Superior Mortgages
and shall promptly notify Mortgagee of any default under any
Superior Mortgages on the part of Mortgagor.
(68)
<PAGE>
Section 5.20. Indemnification.
Mortgagor shall protect, indemnify, hold harmless and defend
Mortgagee and its directors, officers, partners, shareholders,
agents, servants and employees from and against any and all
liabilities, obligations, claims, damages, penalties, causes of
action, costs and expenses (including, without limitation,
reasonable attorneys' fees, disbursements and court costs),
imposed upon or incurred by or asserted against Mortgagee by
reason of (a) any injury to or death of Persons or loss of or
damage to property occurring on or about the Premises or any part
thereof or the adjoining sidewalks, curbs, vaults and vault
spaces, if any, streets, alleys or ways, (b) any use, nonuse or
condition of the Premises or any part thereof or the adjoining
sidewalks, curbs, vaults and vault spaces, if any, streets,
alleys or ways, (c) any failure on the part of Mortgagor to
perform or comply with any of the terms of this Mortgage, (d)
performance of any labor or services or the furnishing of any
materials or other property in respect of the Premises or any
part thereof made or suffered to be made by or on behalf of
Mortgagor, (e) any negligence or tortious act on the part of
Mortgagor or any of its agents, contractors, lessees, licensees
or invitees, or (f) any work in connection with the Premises;
provided, that no amounts shall be payable to Mortgagee under
this Section 5.20 in respect of liabilities, obligations, claims,
damages, penalties, causes of action, costs or expenses imposed
upon or incurred by or asserted against Mortgagee to the extent
the same result from any negligence or tortious act on the part
of Mortgagee or any of its agents, contractors, lessees,
licensees or invitees. All amounts payable to Mortgagee under
this Section 5.20 shall be payable on demand; provided, that with
respect to consequential damages (other than attorneys' fees,
disbursements and court costs imposed upon or incurred by
Mortgagee in connection therewith, which shall in all events be
payable on demand), no such amounts shall be payable until, and
to the extent that, (i) there has been entered the final
determination of a court of competent jurisdiction awarding such
consequential damages to the party or parties seeking such
damages or (ii) an agreement of settlement with respect thereto
(which shall have been previously approved by Mortgagor, such
consent not to be unreasonably withheld) shall have been executed
by Mortgagee and such party or parties. Any such amounts which
are not paid within 5 days after demand therefor by Mortgagee
shall bear interest at the rate set forth in the Note from the
date of such demand and all such amounts and interest thereon
shall be secured by the lien of this Mortgage. In case any
action, suit or proceeding is brought against Mortgagee by reason
of any such occurrence, Mortgagor, upon request of Mortgagee,
shall, at Mortgagor's expense, resist and defend such action,
suit or proceeding or cause the same to be resisted or defended
by counsel designated by Mortgagor and approved by Mortgagee,
(69)
<PAGE>
which approval shall not be unreasonably withheld; provided, that
Willkie, Farr & Gallagher is hereby approved by Mortgagee.
(70)
<PAGE>
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed and attested, all as of the day and
year first above written.
TRUMP'S CASTLE ASSOCIATES
Witness: ____________________ By: _________________________
Name:
Title:
TRUMP'S CASTLE FUNDING, INC.
Witness: ____________________ By: _________________________
Name:
Title:
(71)
<PAGE>
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the ____ day of December, 1993, before me personally came
Donald J. Trump, to me known, who, being by me duly sworn, did depose
and say that he resides at 721 Fifth Avenue, New York, New York; that
he is the managing general partner of Trump's Castle Associates, the
partnership described in and which executed the above instrument; and
he acknowledged that he signed and delivered the same on behalf of
such partnership as his voluntary act and deed and as the voluntary
act and deed of such partnership, pursuant to authority of the board
of directors of said partnership, and that he received a true copy of
the within instrument on behalf of said general partnership.
_________________________
Notary Public
(NOTARY SEAL)
(72)
<PAGE>
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the ____ day of December, 1993, before me personally came
Donald J. Trump, to me known, who, being by me duly sworn, did depose
and say that he resides at 721 Fifth Avenue, New York, New York; that
he is President of Trump's Castle Funding, Inc., one of the
corporations described in and which executed the above instrument;
that he knows the corporate seal of such corporation; that the seal
affixed to said instrument is such corporate seal; that it was so
affixed pursuant to authority of the Board of Directors of such
corporation; and that he signed his name thereto pursuant to like
authority.
_________________________
Notary Public
(NOTARY SEAL)
(73)
<PAGE>
<PAGE>
SCHEDULE 1
OWNED LAND
All the real property located in the City of Atlantic City, County of
Atlantic, State of New Jersey and more particularly described as
follows:
Hotel Parcel:
All that certain real property hereinafter particularly described
situate, lying and being in the City of Atlantic City, County of
Atlantic and State of New Jersey.
BEGINNING at the point of intersection of the Northwesterly line of
Huron Avenue (100 feet wide) and the Northeasterly line of the
Atlantic - Brigantine Boulevard, said Boulevard also known as State
Highway Route 87, and extending thence
1. North 45 degrees 50' 06" West in and along the Atlantic-
Brigantine Boulevard, 56.63'; thence
2. North 19 degrees 16' 38" East, still in and along said
Boulevard, 81.94' to a point of curve; thence
3. Curving to the right in the arc of a circle having a radius
of 783.00', the arc length of 72.815' to a point of reverse curve;
thence
4. Curving to the left in the arc of a circle having a radius
of 837.00', the arc length of 77.836' to another point of reverse
curve; thence
5. Curving to the right in the arc of a circle having a radius
of 2946.00', the arc length of 1017.42' to a point; thence
6. North 44 degrees 34' 15" East, 135.02' to a point of curve;
thence
7. Curving to the right in the arc of a circle having a radius
of 2936.00', the arc length of 105.48' to a point; thence
8. South 27 degrees 28' 00" East, at right angles to Huron
Avenue 842.02' to the northwesterly line of Huron Avenue; thence
9. South 62 degrees 32' 00" West, in and along the
northwesterly line of Huron Avenue, 1229.40 feet to the point and
place of BEGINNING.
EXCEPTING THEREOUT AND THEREFROM the property which was conveyed to
the State of New Jersey by the Deed recorded in Deed Book 3980 page
180.
BEING ALSO KNOWN AND DESIGNATED as Lot 9 in Block H-19 on the Tax Map
of the City of Atlantic City.
PARKING FACILITIES PARCEL
BEGINNING Beach Thorofare at the easterly corner of the parcel of
lands containing an area of 6.199 acres more or less which was
conveyed by the West Jersey and Seashore Railroad Company to the
Press Union Publishing Company by deed dated January 9, 1940, said
beginning point being South 24 degrees 54 minutes 00 seconds West, a
distance of 100.16 feet from a monument set in the southeasterly line
of Absecon Boulevard (also known as U.S. Route 30) (190 feet wide),
and extending from said beginning point; thence,
(1) In Beach Thorofare, South 24 degrees 54 minutes 00 seconds West,
a distance of 259.81 feet to a point; thence
(2) Continuing in and along same, South 44 degrees 54 minutes 00
seconds West, a distance of 445.50 feet to a point; thence,
(3) Continuing in and along same, South 72 degrees 24 minutes 00
seconds West a distance of 224.40 feet to a point; thence
(4) Continuing in and along same, North 68 degrees 21 minutes 00
seconds West, a distance of 478.50 feet to a point; thence
(5) Continuing in and along same, North 76 degrees 06 minutes 00
seconds West, a distance of 363.00 feet to a point; thence
(6) Continuing in and along same, South 82 degrees 39 minutes 00
seconds West, a distance of 429.00 feet to a point; thence,
(7) Continuing in and along same, North 17 degrees 59 minutes 00
seconds East, a distance of 320.65 feet to a point located in
the approximate high water line of Beach Thorofare, said point
also being a corner of lands now or formerly in Daniel Adams, et
al, as recorded in Deed Book CC Page 272; thence,
(8) North 39 degrees 01 minutes 00 seconds West, leaving Beach
Thorofare, in and along the line of lands now or formerly of
Daniel Adams, et al, a distance of 1089.00 feet to a point in
the southeasterly line of lands now or formerly of Lot 307 in
Block 201 as shown on the current official tax map for the City
of Atlantic City, said point also being a corner to lands now or
formerly of Daniel Adams, et al; thence,
(9) North 57 degrees 59 minutes 00 seconds East, in and along the
said lands, a distance of 1113.19 feet to a point in the
aforesaid southwesterly line of Absecon Boulevard; thence,
(10) South 22 degrees 46 minutes 10 seconds East, in and along same,
a distance of 185.42 feet to a point of curve; thence,
(11) Southeastwardly, in and along same and in the arc of a circle
curving to the left having a radius of 1527.69 feet the arc
length of 21,390 feet to a point in the northwesterly line of
Lot 230 in said Block 201; thence,
(12) South 09 degrees 08 minutes 24 seconds East, in the
southwesterly line of Absecon Boulevard, a distance of 87.75' to
a point of curve; thence
(13) Curving to the left along the line of Absecon Boulevard, in the
arc of a circle having a radius of 332.00', the arc length of
201.61' to a point of tangent; thence
(14) South 43 degrees 56 minutes 03 seconds East, continuing in and
along the southwesterly line of Absecon Boulevard, a distance of
128.55' to a point; thence
(15) South 82 degrees 36 minutes 59 seconds East, continuing in and
along the said southwesterly line of Absecon Boulevard, a
distance of 10.00' to a point; thence
(16) Curving to the right along the line of Absecon Boulevard, in the
arc of a circle having a radius of 70.00', the arc length of
47.26' to a point of tangent; thence
(17) North 46 degrees 03 minutes 57 seconds East, along the line of
Absecon Boulevard, a distance of 20.81' to a point which is
radially distant 95.00' from the centerline of Absecon Boulevard
(190' wide) at station 335+98.63'; thence
(18) Curving to the left in the Southwesterly line of Absecon
Boulevard, in the arc of a circle having a radius of 1527.69',
the arc length of 70.33' to the northwesterly line of lot 230 in
said block 201; thence
(19) South 41 degrees 59 minutes 00 seconds West, in and along same,
a distance of 125.00' to the extreme westerly corner of said lot
230; thence
(20) Southeastwardly, in and along the southwesterly line of same,
concentric with Absecon Boulevard, in the arc of a circle
curving to the left, having a radius of 1652.69', the arc length
of 324.55' to the extreme southeasterly corner of said lot 230;
thence
(21) North 30 degrees 43 minutes 55 seconds East, in and along the
southeasterly line of same, a distance of 125.00' to a point in
the aforesaid southwesterly line of Absecon Boulevard; thence
(22) Southeastwardly, in and along same and in the arc of a circle
curving to the left, having a radius of 1527.69', the arc length
of 245.58' to a point of tangency; thence
(23) South 68 degrees 22 minutes 10 seconds East, in and along same,
a distance of 50.00' to a point in the westerly line of the
previously mentioned 6.199 acre parcel, also being the
northwesterly line of lot 150 in said block 201; thence
(24) South 21 degrees 38 minutes 00 seconds West, in and along same,
a distance of 100.00' to a corner in said lot 150; thence
(25) Continuing in and along same, north 68 degrees 22 minutes 10
seconds west, a distance of 94.75' to a corner; thence
(26) Continuing in and along same, south 27 degrees 48 minutes 00
seconds west, a distance of 89.04' to a corner; thence
(27) Continuing in and along same, south 54 degrees 39 minutes 00
seconds west, a distance of 65.88' to a corner; thence
(28) Continuing in and along same, south 71 degrees 53 minutes 00
seconds west, a distance of 201.55' to a corner; thence
(29) Continuing in and along same, south 51 degrees 29 minutes 00
seconds east, a distance of 172.09' to a corner; thence
(30) Continuing in and along same, south 25 degrees 20 minutes 00
seconds east, a distance of 216.73' to a corner; thence
(31) Continuing in and along same and crossing the aforesaid high
water line of Beach Thorofare, south 84 degrees 22 minutes 00
seconds east, a distance of 256.83 to a corner; thence
(32) Continuing in and along same, north 79 degrees 58 minutes 00
seconds east, a distance of 279.10' to a corner; thence
(33) Continuing in and along same, north 41 degrees 22 minutes 00
seconds east, a distance of 266.39 to the point and place of
BEGINNING.
IN compliance with Chapter 157, Laws of 1977 premises herein are
known as Lot 231 in Block 201 as shown on the official tax map of
Atlantic City, New Jersey.
<PAGE>
(PEDESTRIAN BRIDGE)
Air rights, rights of way and easements including the right to
construct, maintain and use a Pedestrian Bridge across Huron Avenue
connecting Property One Tract I with Property One Tract III contained
in Ordinance No. 2 of 1988 and affecting the following described
premises:
ALL that certain lot, tract, or parcel of land and premises situate,
lying, and being in the City of Atlantic City, County of Atlantic,
and State of New Jersey, bounded and described as follows:
BEGINNING at a point in the southerly line of Huron Avenue (100'
wide), said point being distant 956.00' eastwardly from the easterly
line of Maryland Avenue (65' wide), if same were extended
northwardly, and extending from said beginning point; thence
(1) North 27 degrees 28 minutes 00 seconds West, crossing Huron
Avenue, a distance of 100.00' to the northerly line of Huron
Avenue; thence
(2) North 62 degrees 32 minutes 00 seconds East, in and along the
northerly line of Huron Avenue, a distance of 30.00'; thence
(3) South 27 degrees 28 minutes 00 seconds East, crossing Huron
Avenue, a distance of 100.00' to the southerly line of Huron
Avenue; thence
(4) South 62 degrees 32 minutes 00 seconds West, in and along the
southerly line of Huron Avenue, a distance of 30.00' to the
point and place of BEGINNING.
BEING an area above the horizontal plane of Huron Avenue between the
elevation of 25.00 M.S.L. datum and 50.00 M.S.L. datum.<PAGE>
SCHEDULE 2
LEASED LAND
THE FARLEY STATE MARINA SITE
Beginning at the southeasterly corner of Maryland Avenue (68.00'
wide and Huron Avenue 100.00' wide) and extending from said beginning
point; thence
(1) South 27 degrees 28 minutes 00 seconds-East, in and along
the easterly line of Maryland Avenue, a distance of
804.15'; thence
(2) North 62 degrees 32 minutes 00 seconds East parallel with
Huron Avenue, a distance of 200.00'; thence
(3) South 27 degrees 28 minutes 00 seconds East, parallel with
Maryland Avenue, a distance of 1060.85' to a point distant
1745.00' northwardly at right angles from the northerly
line of Mediterranean Avenue (60.00' wide), said point
being in the fifth course as recited in the Riparian Grant
from the State of New Jersey to the City of Atlantic City,
dated March 15, 1920 and recorded in the clerk's office of
Atlantic County in Book 632 of Deeds, Page 117, etc.;
thence
(4) North 62 degrees 32 minutes 00 seconds East, parallel with
Huron Avenue, and in and along said aforementioned Riparian
Grant Line, a distance of 25.00'; thence
(5) North 27 degrees 28 minutes 00 seconds West, parallel with
Maryland Avenue, and in and along said aforementioned
Riparian Grant Line, a distance of 9.26'; thence
(6) North 09 degrees 01 minutes 00 seconds East, in and along
said aforementioned Riparian Grant Line, a distance of
0.04'; thence
(7) North 02 degree 18 minutes 00 seconds East, in and along
said aforementioned Riparian Grant Line, a distance of
590.00'; thence
(8) North 62 degrees 32 minutes 00 seconds East, parallel with
Huron Avenue, in and along said aforementioned Riparian
Grant Line, a distance of 160.00'; thence
(9) North 41 degrees 39 minutes 00 seconds East, in and along
said aforementioned Riparian Grant Line, a distance of
255.00'; thence
(10) North 47 degrees 34 minutes 00 seconds East, in and along
said aforementioned Riparian Grant Line, a distance of
285.00'; thence
(11) North 56 degrees 02 minutes 00 seconds East, in and along
said aforementioned Riparian Grant Line, a distance of
360.00' to a point distance 1550.00; eastwardly at right
angles from the easterly line of Maryland Avenue; thence
(12) North 27 degrees 28 minutes 00 seconds West, parallel with
Maryland Avenue, a distance of 568.21'; thence
(13) North 62 degrees 32 minutes 00 seconds East, parallel with
Huron Avenue, a distance of 200.00' to the westerly line of
Rhode Island Avenue (50.00' wide); thence
(14) North 27 degrees 28 minutes 00 seconds West in and along
the westerly line of Rhode Island Avenue, a distance of
570.00' to the southerly line of Huron Avenue; thence
(15) South 62 degrees 32 minutes 00 seconds West, in and along
the southerly line of Huron Avenue, a distance of 1750.00'
to the point and place of BEGINNING.
EXCEPTING THEREOUT AND THEREFROM the following parcel of land
described as:
MARINE POLICE BUILDING PARCEL
BEGINNING at a point in the westerly line of Rhode Island Avenue
(50.00 feet wide), said point being distant 570.00 feet south of the
southerly line of Huron Avenue (100.00 feet wide) and extending;
thence
1. South 62 degrees 32 minutes 00 seconds West, parallel with Huron
Avenue, and in and along the division line between Lot 10 and
Lot 11 in Block B-4 as shown on the current taxing plan of the
City of Atlantic City, a distance of 97.97 feet; thence
2. North 27 degrees, 28 minutes 00 West, parallel with Rhode Island
Avenue, a distance of 179.00 feet; thence
3. North 62 degrees 32 minutes 00 seconds East, parallel with Huron
Avenue, a distance of 97.97 feet to the Westerly line of Rhode
Island Avenue; thence
4. South 27 degrees 28 minutes 00 seconds East, in and along the
westerly line of Rhode Island Avenue, a distance of 179.00 feet
to the point and place of BEGINNING.
ALSO EXCEPTING THEREON AND THEREFROM such land and improvements being
referred to as the 7 berths on K dock for use of the Marina Law
Enforcement Bureau as further described in the Lease referred to in
Schedule "B" Item #2 and further shown on survey by Arthur W. Ponzio
Co. & Assoc., Inc., dated December 28, 1993 and bearing Job No.
18488.
In compliance with Chapter 157, Laws of 1977, premises herein
are known as part of Lot 11 in Block B-4 as shown on the official tax
map of Atlantic City, New Jersey.<PAGE>
SCHEDULE 3
EXISTING ENCUMBRANCES
<PAGE>
SCHEDULE 4
FORM OF NON-DISTURBANCE
AND ATTORNMENT AGREEMENT
THIS AGREEMENT, made as of the ______ day of ________
by and between
having an office at
(hereinafter called "Mortgagee") and
a having an
office at (hereinafter
called "Tenant").
W I T N E S S E T H:
WHEREAS, Mortgagee is the mortgagee under that certain
Indenture of Mortgage and Security Agreement dated December __, 1993
(said mortgage, as it may be amended, increased, renewed, modified,
consolidated, replaced, combined, substituted, severed, split, spread
or extended, being hereinafter referred to as the "Mortgage") between
Trump's Castle Funding, Inc. ("Funding") and Trump's Castle
Associates which encumbers Trump's Castle Casino Hotel and certain
other real property located in Atlantic City, New Jersey, more
particularly described in Exhibit A hereto. Funding assigned all of
its right, title and interest in the Mortgage to __________________ ,
as Trustee, pursuant to an Assignment Agreement dated December __,
1993; and
WHEREAS, Tenant has entered into a certain agreement
of lease dated [as amended by agreements dated
and ] and as it may be hereafter amended from time to
time (the "Lease") covering (the "Demised Premises").
NOW, THEREFORE, in consideration of the mutual agreements herein
contained and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree
as follows:
1. Tenant covenants and agrees that the Lease now is and shall
at all times continue to be subject and subordinate in each and every
respect to the Mortgage. Tenant, upon request, shall execute and
deliver any certificate or other instrument which the Mortgagee may
reasonably request to confirm said subordination by Tenant.
2. Tenant certifies that the Lease is presently in full force
and effect and unmodified and no base rent payable thereunder has
been paid more than one (1) Year in advance of its due date, and that
no default exists under the Lease which has continued beyond the
expiration of any applicable grace period.
3. As long as Tenant is in compliance with the terms of this
Agreement and no default exists under the Lease which has continued
beyond the expiration of any applicable grace period, Mortgagee shall
not name Tenant as a party defendant to any action for foreclosure or
other enforcement thereof (unless required by law), nor shall the
Lease be terminated by mortgagee in connection with, or by reason of,
foreclosure or other proceedings for the enforcement of the Mortgage,
or by reason of a transfer of the landlord's interest under the Lease
pursuant to the taking of a deed in lieu of foreclosure (or similar
device), nor shall Tenant's use or possession of the Demised Premises
be interfered with by Mortgagee, unless the holder of the landlord's
interest under the Lease (the "Landlord") would have had such right
if the Mortgage had not been made, except that the person acquiring,
or succeeding tothe interests of the Landlord as a result of any such
action or proceeding, and such person's successors and assigns (any
of the foregoing being hereinafter referred to as the Successor"),
shall not be:
(a) subject to any credits, offsets, defenses or claims
which Tenant might have against any prior landlord; nor
(b) bound by any base rent which Tenant might have paid for
more than the current month to any prior landlord, unless such
prepayment shall have been made with Mortgagee's prior written
consent; nor
(c) liable for any act or omission of any prior landlord;
nor
(d) bound by any covenant to undertake or complete any
improvement to the Demised Premises or the building forming a
part of the Property; nor
(e) be required to account for any security deposit other
than any security deposit actually delivered to the Successor;
nor
(f) liable for any payment to Tenant of any sums, or the
granting to Tenant of any credit, in the nature of a
contribution towards the cost of preparing, furnishing or moving
into-the Demised Premises or any portion thereof.
4. If the interest of the Landlord under the Lease shall be
transferred by reason of foreclosure or other proceedings for
enforcement of the Mortgage or pursuant to a taking of a deed in lieu
of foreclosure (or similar device), Tenant shall be bound to the
Successor, and, except as provided in this Agreement, the Successor
shall be bound to Tenant, under all of the terms, covenants and
conditions of the Lease for the balance of the term thereof
remaining, with the same force and effect as if the Successor were
the Landlord, and Tenant does hereby (i) agree to attorn to the
Successor, including Mortgagee if it be the Successor, as its
landlord, (ii) affirm its obligations under the Lease, and (iii)
agree to make payments of all sums due under the Lease to the
Successor, said attornment, affirmation and agreement to be effective
and self-operative without the execution of any further instruments,
upon the Successor succeeding to the interest to the Landlord under
the Lease. Tenant waives the provisions of any statute or rule of
law now or hereafter in effect that may give or purport to give it
any right or election to terminate or otherwise adversely affect the
Lease or the obligations of Tenant thereunder by reason of any
foreclosure or similar proceeding.
5. This Agreement may not be modified except by an agreement
in writing signed by the parties or their respective successors in
interest. This Agreement shall inure to the benefit of and be
binding upon the parties hereto, their respective heirs,
representatives, successors and assigns.
6. Nothing contained in this Agreement shall in any way impair
or affect the lien created by the Mortgage except as specifically set
forth herein.
7. The Tenant agrees that this Agreement satisfies any condition
or requirement in the Lease relating to the granting of a
non-disturbance agreement by Mortgagee. Tenant further agrees that
in the event there is any inconsistency between the terms and
provisions hereof and the terms and provisions of the Lease dealing
with non-disturbance by Mortgagee, the terms and provisions hereof
shall be controlling.
8. All notices, demands or requests made pursuant
to, under, or by virtue of this Agreement must be in writing
and mailed to the party whom the notice, demand or request is
being made by certified or registered mail, return receipt requested,
at its address set forth above. Any party may change the place that
notices and demands are to be sent by written notice delivered in
accordance with this Agreement.
9. This Agreement shall be governed by the laws of the State
of New Jersey. If any term of this Agreement or the application
thereof to any person or circumstances shall to any extent be invalid
or unenforceable, the remainder of this Agreement or the application
of such term to any person or circumstances other than those as to
which it is invalid or unenforceable shall not be affected thereby,
and each term of this Agreement shall be valid and enforceable to the
fullest extent permitted by law.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have hereunto caused this
Agreement to be duly executed as of the day and year first above
written.
MORTGAGEE
By:________________________________
TENANT
By:_________________________________
[Acknowledgments]
EXHIBIT A
FORM OF TRUST INDENTURE
INDENTURE OF MORTGAGE AND SECURITY AGREEMENT
(Guarantee Mortgage)
TRUMP'S CASTLE ASSOCIATES,
Mortgagor/Debtor
and
FIRST BANK NATIONAL ASSOCIATION,
as Trustee under the Trust Indenture, Mortgagee/Secured Party
Dated as of December 28, 1993
Record and Return to:
Robert L. Nutt, Esq.
Ropes & Gray
One International Place
Boston, Massachusetts 02110-2624
<PAGE>
TABLE OF CONTENTS
ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF GENERAL
APPLICATION . . . . . . . . . . . . . . . . . . 9
Section 1.1. Definitions. . . . . . . . . . . . . . . . 9
Section 1.2. Notices. . . . . . . . . . . . . . . . . . 19
Section 1.3. Form and Contents of
Documents Delivered to Mortgagee.. . . . . 19
Section 1.4. Compliance Certificates and Opinions.. . . 20
Section 1.5. Effect of Headings and Table of Contents . 21
Section 1.6. Successors and Assigns; Amendments . . . . 21
Section 1.7. Separability Clause. . . . . . . . . . . . 21
Section 1.8. Benefits of Mortgage.. . . . . . . . . . . 22
Section 1.9. Governing Law. . . . . . . . . . . . . . . 22
Section 1.10. Limitation on Liability. . . . . . . . . . 22
Section 1.11. Provisions Required by Trust Indenture.. . 23
Section 1.12. Rights of Trustee as Mortgagee.. . . . . . 23
Section 1.13. Mortgage Subject to Casino Control Act.. . 24
Section 1.14. Discharge of Lien. . . . . . . . . . . . . 24
Section 1.15. General Application. . . . . . . . . . . . 25
Section 1.16. Mortgage Deemed to be Security
Agreement. . . . . . . . . . . . . . . . . 25
Section 1.17. No Duplication of Notices or Payments. . . 25
ARTICLE TWO RELEASE; SUBORDINATION. . . . . . . . . . . . . 26
Section 2.1. Possession by Mortgagor. . . . . . . . . . 26
Section 2.2. Obsolete Property. . . . . . . . . . . . . 26
Section 2.3. F,F&E Financing Agreements.. . . . . . . . 27
ARTICLE THREE REMEDIES. . . . . . . . . . . . . . . . . . . . 28
Section 3.1. Events of Default. . . . . . . . . . . . . 28
Section 3.2. [Intentionally Omitted]. . . . . . . . . . 30
Section 3.3. Application of Moneys Received by
Mortgagee. . . . . . . . . . . . . . . . . 30
Section 3.4. Restoration of Rights and Remedies.. . . . 30
Section 3.5. Rights and Remedies Cumulative.. . . . . . 30
Section 3.6. Delay or Omission Not Waiver.. . . . . . . 30
Section 3.7. Undertaking for Costs. . . . . . . . . . . 30
Section 3.8. Waiver of Appraisement and Other Laws. . . 31
Section 3.9. Entry. . . . . . . . . . . . . . . . . . . 31
Section 3.10. Power of Sale; Suits for Enforcement.. . . 32
Section 3.11. Incidents of Sale. . . . . . . . . . . . . 32
Section 3.12. Receiver.. . . . . . . . . . . . . . . . . 33
Section 3.13. Suits to Protect the Trust Estate. . . . . 34
Section 3.14. Management of the Premises.. . . . . . . . 34
ARTICLE FOURCONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE 34
Section 4.1. Consolidation, Merger, Conveyance
or Transfer only on Certain Terms. . . . . 34
(i)
<PAGE>
Section 4.2. Successor Entity Substituted.. . . . . . . 34
ARTICLE FIVE COVENANTS AND REPRESENTATIONS OF MORTGAGOR. . . 35
Section 5.1. Performance of Guarantee Obligations.. . . 35
Section 5.2. F,F&E Financing Agreements.. . . . . . . . 35
Section 5.3. Limitations on Liens and Transfers.. . . . 35
Section 5.4. Environmental. . . . . . . . . . . . . . . 36
Section 5.5. Warranty of Leasehold Estate and Title . . 40
Section 5.6. After-Acquired Property;
Further Assurances; Recording. . . . . . . 41
Section 5.7. Payment of Taxes and Certain Claims;
Maintenance of Properties; Compliance with
Legal Requirements and Insurance
Requirements.. . . . . . . . . . . . . . . 43
Section 5.8. Permitted Contests . . . . . . . . . . . . 45
Section 5.9. Mechanics' and Other Liens.. . . . . . . . 45
Section 5.10. To Insure. . . . . . . . . . . . . . . . . 46
Section 5.11. Limitations on Building Demolition,
Alterations, Improvements and New
Construction.. . . . . . . . . . . . . . . 53
Section 5.12. Leases.. . . . . . . . . . . . . . . . . . 55
Section 5.13. Compliance Certificates. . . . . . . . . . 57
Section 5.14. To Keep Books; Inspection by Mortgagee . . 58
Section 5.15. Advances by Mortgagee. . . . . . . . . . . 58
Section 5.16. Waiver of Stay, Extension or Usury
Laws.. . . . . . . . . . . . . . . . . . . 58
Section 5.17. Eminent Domain.. . . . . . . . . . . . . . 59
Section 5.18. Facility Leases. . . . . . . . . . . . . . 61
Section 5.19. Superior Mortgages.. . . . . . . . . . . . 66
Section 5.20. Indemnification. . . . . . . . . . . . . . 67
SCHEDULE 1 OWNED LAND. . . . . . . . . . . . . . . . . . 1-1
SCHEDULE 2 LEASED LAND . . . . . . . . . . . . . . . . . 2-1
SCHEDULE 3 EXISTING ENCUMBRANCES . . . . . . . . . . . . 3-1
SCHEDULE 4 FORM OF NON-DISTURBANCE AND ATTORNMENT
AGREEMENT . . . . . . . . . . . . . . . . . . 4-1
EXHIBIT A FORM OF TRUST INDENTURE
(ii)
<PAGE>
INDENTURE OF MORTGAGE AND SECURITY AGREEMENT
INDENTURE OF MORTGAGE AND SECURITY AGREEMENT ("Mortgage"),
dated as of December 28, 1993, between TRUMP'S CASTLE ASSOCIATES,
a New Jersey general partnership having an office at Brigantine
Boulevard and Huron Avenue, Atlantic City, New Jersey 08401
("Mortgagor"), and FIRST BANK NATIONAL ASSOCIATION, a national
banking association, not individually but in its capacity as
Trustee under the Trust Indenture (as hereinafter defined),
having an office at 180 East Fifth Street, St. Paul, Minnesota
55101 ("Mortgagee").
Witnesseth:
In consideration of $10.00 in hand paid by Mortgagee to
Mortgagor and for other good and valuable consideration, the
receipt and sufficiency whereof is hereby acknowledged, and in
order to secure (i) the punctual payment and performance when due
of all of Mortgagor's obligations under the Guarantee; (ii) the
punctual payment and performance when due of all the Company's
and Mortgagors obligations under the Mortgage Notes and the Trust
Indenture; (iii) payment by Mortgagor to Mortgagee of all sums
expended or advanced by Mortgagee pursuant to any term or
provision of this Mortgage; (iv) performance of each covenant,
term, condition and agreement of Mortgagor herein contained; (v)
all costs and expenses, including, without limitation, reasonable
counsel fees and expenses as provided in Section 3.7 of this
Mortgage, which may arise in respect of this Mortgage or of the
obligations secured hereby; and (vi) performance and observance
of all of the provisions herein contained, Mortgagor has executed
and delivered this Mortgage and has bargained, sold, aliened,
mortgaged, pledged, released, conveyed and confirmed unto
Mortgagee and its successors hereunder and assigns forever, and
does hereby grant to Mortgagee and its successors a security
interest in and to, all of Mortgagor's right, title and interest
in, to and under all of the following described property and the
proceeds thereof:
GRANTING CLAUSES
Granting Clause First
All of the property, rights, title, interest, privileges and
franchises particularly described in annexed Schedule 1 (the
"Owned Land"), which Schedule is hereby made a part of, and
deemed to be described in, this Granting Clause as fully as if
set forth in this Granting Clause at length.
(1)
<PAGE>
Granting Clause Second
[Intentionally omitted]
Granting Clause Third
All of the property, rights, title, interest, privileges and
franchises of Mortgagor as lessee under all Facility Leases
(including, to the extent permissible to the Landlord under the
Marina Lease, the Marina Lease), together with (i) all credits,
deposits, privileges and rights of Mortgagor as lessee under the
Facility Leases, now or at any time existing, (ii) the leaseholds
and the leasehold estates created by the Facility Leases and
(iii) all of the estates, rights, titles, claims or demands
whatsoever of Mortgagor, either in law or in equity, in
possession or in expectancy, of, in and to the Facility Leases
and the Leased Facilities (including, but not limited to, the
Leased Land particularly described in annexed Schedule 2),
together with (x) any and all other, further or additional title,
estates, interests or rights which may at any time be acquired by
Mortgagor in or to the Leased Facilities or any part thereof, and
Mortgagor expressly agrees that if Mortgagor shall, at any time
prior to payment in full of all indebtedness secured hereby,
acquire fee simple title or any other greater estate to the
Leased Facilities, the lien of this Mortgage shall attach, extend
to, cover and be a lien upon such fee simple title or other
greater estate and thereupon the lien of this Mortgage, subject
to Permitted Encumbrances, shall be prior to the lien of any
mortgage or deed of trust placed on such acquired title, estate,
interest or right subsequent to the date of this Mortgage and (y)
any right to possession or statutory term of years derived from,
or incident to, the Facility Leases pursuant to Section 365(h) of
the Code or any Comparable Provision.
Granting Clause Fourth
All of the rents, issues, profits, revenues, accounts,
accounts receivable and other income and proceeds (including,
without limitation, all rents, fees, charges, accounts, issues,
profits, revenues and payments for or from (a) the use or
occupancy of the rooms and other public facilities in the Hotel
and (b) the operation of the Casino) of the property subjected or
required to be subjected to the lien of this Mortgage, including,
(2)
<PAGE>
<PAGE>
without limitation, the property described in Granting Clauses
First, Third and Seventh (said property described in Granting
Clauses First, Third and Seventh and similar other property
subjected or required to be subjected to the lien of this
Mortgage, together with all such rents, issues, profits,
revenues, accounts, accounts receivable and other income and
proceeds therefrom is hereinafter collectively referred to as the
"Premises") and all of the estate, right, title and interest of
every nature whatsoever of Mortgagor in and to the same and every
part thereof.
Granting Clause Fifth
All of the rights of Mortgagor as lessor under the Leases in
effect on the date of execution of this Mortgage or hereafter
entered into by Mortgagor, including modifications, extensions
and renewals of all of the same, and the immediate and continuing
right as security after the occurrence, and during the
continuance, of an Event of Default, to (a) make claim for,
collect, receive and receipt for (and to apply the same as
provided herein) any and all rents, fees, charges, income,
revenues, issues, profits, security and other sums of money
payable or receivable thereunder or pursuant thereto, and all
proceeds thereof, whether payable as rent, insurance proceeds,
condemnation awards, security or otherwise and whether payable
prior to or subsequent to the Stated Maturity of the Note, (b)
receive and give notices and consents thereunder, (c) bring
actions and proceedings thereunder or for the enforcement
thereof, (d) make waivers and agreements thereunder or with
respect thereto, (e) take such action upon the happening of a
default under any Lease, including the commencement, conduct and
consummation of any proceedings at law or in equity as shall be
permitted by any provision of any Lease, and (f) do any and all
things which Mortgagor or any lessor is or may become entitled to
do under the Leases; provided that, except as may be set forth to
the contrary herein, the assignment made by this Granting Clause
Fourth shall not impair or diminish any right, privilege or
obligation of Mortgagor under the Leases nor shall any such
obligation be imposed upon Mortgagee.
Granting Clause Sixth
Without limiting the generality of the provisions of
Granting Clause Fourth, all of Mortgagor's rights, title,
interest, privileges and franchises in and to the following, now
owned or hereafter acquired by Mortgagor, to the extent of
Mortgagor's interest therein and thereto and to the extent
assignable (collectively, "Operating Assets"):
(3)
<PAGE>
(a) bookings for the use of guest rooms, banquet
facilities, meeting rooms at the Casino Hotel or at any other
improvements now or hereafter located on any of the Land;
(b) all contracts respecting utility services for, and the
maintenance, operations, or equipping of, the Premises, including
guaranties and warranties relating thereto;
(c) the Permits;
(d) all contract rights, leases (whether with respect to
real property, personal property or both real and personal
property), concessions, trademarks, trade names, service marks,
logos, copyrights, warranties and other items of intangible
personal property, and any and all good will associated with the
same, relating to the ownership or operation of the Casino Hotel
or of any other improvements now or hereafter located on any of
the Land, including, without limitation, (1) employment contracts
with officers and other employees of Mortgagee, (2) telephone and
other communication numbers, (3) all software licensing
agreements as are required to operate computer software systems
at the Casino Hotel or at any other improvements now or hereafter
located on any of the Land and books and records relating to the
software programs and (4) lessee's interest under leases of
Tangible Personal Property;
(e) all contracts, purchase orders, requisitions and
agreements entered into by or on behalf of Mortgagor or which
have been assigned to Mortgagor, for the design, construction,
and furnishing of the Casino Hotel or of any other improvements
now or hereafter located on any of the Land, including, without
limitation, architect's agreements, engineering agreements,
construction contracts, consulting agreements and agreements or
purchase orders for all items of Tangible Personal Property and
payment and performance bonds in favor of Mortgagor in connection
with the Trust Estate (and all warranties and guarantees
thereunder and warranties and guarantees of any subcontractor and
bond issued in connection with the work to be performed by any
subcontractor);
(f) the following personal property (the "Tangible Personal
Property") now or hereafter acquired by Mortgagor (directly or by
way of lease) which is located on, or to be located on, or which
are in use or held in reserve storage for future use in
connection with the gaming or other operations of, the Casino
Hotel or of any other improvements now or hereafter located on
any of the Land, which is on hand or on order whether stored
on-site or off-site:
(i) all furniture, furnishings, equipment, machinery,
lighting, apparatus (both interior and exterior),
(4)
<PAGE>
appliances, fixtures and fittings and other articles of
tangible personal property;
(ii) all slot machines, electronic gaming devices,
crap tables, blackjack tables, poker tables, roulette
tables, baccarat tables, big six wheels and other gaming
tables, and all furnishings and equipment to be used in
connection with the operation thereof;
(iii) all cards, dice, gaming chips and plaques,
tokens, chip racks, dealing shoes, dice cups, dice sticks,
layouts, paddles, roulette balls and other consumable
supplies and items;
(iv) all china, glassware, linens, kitchen utensils,
silverware and uniforms;
(v) all consumable and operating supplies of every
kind and nature, including, without limitation, accounting
supplies, guest supplies, forms, printing, stationery, food
and beverage stock, bar supplies, laundry supplies and
brochures to existing purchase orders;
(vi) all upholstery material, carpets and rugs, beds,
bureaus, chiffonniers, chairs, chests, desks, bookcases,
tables, curtains, hangings, pictures, divans, couches,
ornaments, bars, bar fixtures, safes, stoves, ranges,
refrigerators, radios, televisions, clocks; electrical
equipment, lamps, mirrors, heating and lighting fixtures and
equipment, ice machines, air conditioning machines, fire
prevention and extinguishing apparatus, laundry machines,
and all similar and related articles used in bedrooms,
sitting rooms, bathrooms, boudoirs, halls, closets,
kitchens, dining rooms, offices, lobbies, basements and
cellars in the Casino Hotel and in any other improvements
now or hereafter located on any of the Land;
(vii) all sets and scenery, costumes, props and other
items of tangible personal property on hand or on order for
use in the production of shows in any showroom, convention
space, exhibition hall, or sports and entertainment arena of
the Casino Hotel or in any other improvements now or
hereafter located on any of the Land; and
(viii) all cars, limousines, vans, buses, trucks and
other vehicles owned or leased by Mortgagor for use in
connection with the operation of the Premises, together with
all equipment, parts and supplies used to service, repair,
maintain and equip the foregoing;
(g) all drawings, designs, plans and specifications
prepared by architects, engineers, interior designers, landscape
(5)
<PAGE>
designers and any other professionals or consultants for the
design, development, construction and/or improvement of the
Casino Hotel, or for any other development of the Premises, as
amended from time to time;
(h) any administrative and judicial proceedings initiated
by Mortgagor, or in which Mortgagor has intervened, concerning
the Premises, and agreements, if any, which are the subject
matter of such proceedings;
(i) any customer lists utilized by Mortgagor including
lists of transient guests and restaurant and bar patrons and
"high roller" lists; and
(j) all of the good will in connection with the assets
listed in this Granting Clause Sixth and in connection with the
operation of the Premises.
Except as may be set forth to the contrary herein, the
assignment made by this Granting Clause Sixth shall not impair or
diminish any right, privilege or obligation of Mortgagor with
respect to the Operating Assets, nor shall any such obligation be
imposed on Mortgagee.
Granting Clause Seventh
(a) All of Mortgagor's rights, title, interest, privileges
and franchises, if any, in and to all buildings, structures
(surface and subsurface), and other improvements of every kind
and description, including, without limitation, all pedestrian
bridges, entrance-ways, parking lots, plazas, curb-cuts,
walkways, driveways and landscaping and such fixtures as
constitute real property, now or hereafter erected or placed on
the Land or on any other land or any interest therein hereafter
acquired by Mortgagor and all of Mortgagor's rights, title,
interest, privileges and franchises in and to all fixtures and
articles of personal property now or hereafter attached to or
contained in and used in connection with such buildings and
improvements, including, without limitation, all apparatus,
furniture, furnishings, lighting equipment, electronic
billboards, machinery, motors, elevators, fittings, radiators,
cooking ranges, ice boxes, ice machines, printing presses,
mirrors, bars, mechanical refrigerators, furnaces, coal and oil
burning apparatus, wall cabinets, machinery, generators,
partitions, steam and hot water boilers, lighting and power
plants, pipes, plumbing, radiators, sinks, bath tubs, water
closets, gas and electrical fixtures, awnings, shades, screens,
blinds, dishwashers, freezers, vacuum cleaning systems, office
equipment and other furnishings, and all plumbing, heating,
lighting, cooking, laundry, ventilating, incinerating,
air-conditioning and sprinkler equipment or other fire prevention
(6)
<PAGE>
or extinguishing apparatus and material, and fixtures and
appurtenances thereto; and all renewals or replacements thereof
or articles in substitution therefor, whether or not the same are
or shall be attached to the Land, any other land or any interest
therein hereafter acquired by Mortgagor or to any such buildings
and improvements thereon, in any manner.
(b) All of Mortgagor's rights, title, interest, privileges
and franchises in and to all other property, real, personal or
mixed, of every kind and description and wheresoever situate, now
owned or which may be hereafter acquired by Mortgagor, it being
the intention hereof that all property, interests, rights,
privileges and franchises now owned by Mortgagor or acquired by
Mortgagor after the date hereof shall be as fully embraced within
and subjected to the lien hereof as if such property were
specifically described herein.
* * *
TOGETHER with all of Mortgagor's right, title and interest
in and to any and all mineral and water rights and any title or
reversion, in and to the beds of the ways, streets, avenues and
alleys adjoining the Premises to the center line thereof and in
and to all strips, gaps and gores adjoining the Premises on all
sides thereof; and
TOGETHER with any and all of Mortgagor's right, title and
interest in and to the tenements, hereditaments, easements,
appurtenances, passages, waters, water courses, riparian rights,
other rights, liberties and privileges thereof or in any way now
or hereafter appertaining to the Premises, including, without
limitation, any other claim at law or in equity as well as any
after-acquired title, franchise or license and the reversion and
reversions and remainder and remainders thereof; and
TOGETHER with any and all awards and other compensation
heretofore or hereafter to be made to the present and all
subsequent owners of the Trust Estate for any taking by eminent
domain, either permanent or temporary, of all or any part of the
Trust Estate or any easement or appurtenances thereof, including
severance and consequential damage and change in grade of
streets, all in accordance with and subject to the provisions of
the Superior Instrument Requirements and Section 5.17; and
TOGETHER with any and all proceeds of any unearned premiums
on any insurance policies described in Section 5.10, and the
right to receive and apply the proceeds of any insurance,
judgments, or settlements made in lieu thereof, for damage to the
Trust Estate or otherwise, all in accordance with and subject to
the provisions of Section 5.10 and the Superior Instrument
Requirements; and
(7)
<PAGE>
TOGETHER with all proceeds of every kind and nature, and all
products of every kind and nature, of any of the foregoing
property, rights, title, interests, privileges, franchises and
other assets described in Granting Clauses First through Seventh
or in any of the other clauses thereafter.
The foregoing shall include, whether or not specifically
identified in one or more instances, all such property, rights,
title, interests, privileges, franchises and other assets now
owned and/or hereafter existing.
EXCLUDING, with respect to all of the hereinabove granted
property, rights, title, interest, privileges and franchises
described in Granting Clauses First through Seventh or in the six
immediately preceding paragraphs, all Excepted Property now or
hereafter existing.
TO HAVE AND TO HOLD all of said Premises, Leases, Facility
Leases, Operating Assets, properties, options, credits, deposits,
rights, privileges and franchises of every kind and description,
real, personal or mixed, hereby and hereafter granted, bargained,
sold, aliened, assigned, transferred, hypothecated, pledged,
released, conveyed, mortgaged, or confirmed as aforesaid, or
intended, agreed or covenanted so to be, together with all the
appurtenances thereto appertaining (said Premises, Leases,
Facility Leases, Operating Assets, properties, options, credits,
deposits, rights, privileges and franchises, other than Excepted
Property now or hereafter existing, being herein collectively
called the "Trust Estate") unto Mortgagee and its successors and
assigns forever.
SUBJECT, HOWEVER, on the date hereof, to Existing
Encumbrances (including the Superior Mortgages) and, after the
date hereof, to Permitted Encumbrances (other than Restricted
Encumbrances).
PROVIDED, HOWEVER, that the lien of this Mortgage upon the
Trust Estate shall rank pari passu with the lien of the Note
Mortgage.
BUT IN TRUST, NEVERTHELESS, for the ratable benefit and
security of the Holders.
UPON CONDITION that, until the happening of an Event of
Default, Mortgagor shall be permitted to possess and use the
Trust Estate, and to receive and use the rents, issues, profits,
revenues and other income of the Trust Estate.
AND IT IS HEREBY COVENANTED AND DECLARED that the Trust
Estate is to be held and applied by Mortgagee, subject to the
further covenants, conditions and trusts hereinafter set forth,
(8)
<PAGE>
and Mortgagor does hereby covenant and agree to and with
Mortgagee, for the ratable benefit of the Holders, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF
GENERAL APPLICATION
Section 1.1. Definitions.
For all purposes of this Mortgage, except as otherwise
expressly provided or unless the context otherwise requires:
(a) the terms defined in this Article One have the meanings
assigned to them in this Article One and include the plural as
well as the singular;
(b) all accounting terms not otherwise defined herein have
the meanings assigned to them, and all computations herein
provided for shall be made, in accordance with generally accepted
accounting principles in effect on the date hereof consistently
applied; and
(c) the words "herein," "hereof" and "hereunder" and other
words of similar import refer to this Mortgage as a whole and not
to any particular Article, Section or other subdivision.
"Affiliate" has the meaning set forth in Section 1.1 of the
Trust Indenture.
"Alterations" has the meaning set forth in Section 5.11.
"Appraised Value" means the fair market value of the Casino
Hotel, and of all other property now or hereafter owned or leased
by Mortgagor and subject to the lien of this Mortgage, as
determined by an Independent Appraiser on the basis of an
appraisal in conformity with the criteria set forth at 12 C.F.R.
ss 564.4 or such similar published policy or regulation as from
time to time governs real estate related transactions by
institutions regulated by the Office of Thrift Supervision;
provided, that the value of the Casino Hotel and such other
property shall not include the value of (i) any furniture,
fixtures and equipment therein to the extent of the Outstanding
Amount of any Indebtedness secured by any F,F&E Financing
Agreements with respect thereto and (ii) any Excepted Property.
"Appraiser" means a "state certified appraiser" as defined
in 12 C.F.R. ss 564.2(i) who is (i) of recognized standing among
appraisers of properties similar to the Casino Hotel and (ii)
experienced in the appraisals of properties of a similar size and
scope to that of the Casino Hotel, selected by Mortgagor.
(9)
<PAGE>
"Architect" means an Independent Person selected by
Mortgagor and licensed as an architect in the State of New
Jersey.
"Casino" means that portion of the Casino Hotel used for
gaming and related activities.
"Casino Hotel" means the casino and hotel complex currently
known as the "Trump's Castle Casino Resort" in Atlantic City, New
Jersey, and ancillary structures and facilities located on the
Premises (other than the property covered by the Marina Lease)
and all furniture, fixtures and equipment at any time contained
therein in each case owned by or leased to Mortgagor and covered
by the lien of the Mortgage Documents.
"Casualty" means any act or occurrence of any kind or nature
which results in damage, loss or destruction to any buildings or
improvements on the Premises and/or Tangible Personal Property.
"Certificate of Appraised Value" means the certificate of an
Independent Appraiser stating the Appraised Value.
"Code" means the Federal Bankruptcy Code, Title 11 of the
United States Code, as amended.
"Company" means Trump's Castle Funding, Inc., a corporation
incorporated under the laws of the State of New Jersey, or any
other obligor on the Mortgage Notes (other than Mortgagor).
"Comparable Provision" has the meaning set forth in
Section 5.18.
"Default" means any event which is, or after notice or lapse
of time or both would be, an Event of Default. Without limiting
the generality of the previous provisions of this definition, the
term "Default" shall include the occurrence of an event as to
which a notice of default has been given to Mortgagor under any
Facility Lease by a Lessor or under any Superior Mortgage by the
holder thereof, which has not yet been cured.
"Depositary" means an Independent entity to which insurance
proceeds or condemnation awards are paid to be held in trust for
Restoration pursuant to the provisions of a Superior Mortgage.
"Event of Default" has the meaning set forth in Section 3.1.
"Excepted Property" means:
(1) the personal property owned by lessees under Leases and
the personal property of any Hotel guests;
(10)
<PAGE>
(2) trade names, intellectual property rights and other
rights and interests in and to the use of the terms "Trump's
Castle," "Trump," "Trump's Castle Casino Resort", "Donald J.
Trump," "Donald Trump" or related variations thereof;
(3) any property deemed to be Excepted Property pursuant to
the provisions of Section 2.3;
(4) counterchecks, cash and any other property to the
extent that the granting of a security interest therein is
prohibited by the New Jersey Casino Control Act, N.J.S.A. 5:12-1
et seq., and the regulations promulgated thereunder; and
(5) any property acquired pursuant to secured purchase-
money indebtedness permitted under clause "i" of the definition
of "Permitted Indebtedness" in the Trust Indenture.
"Existing Encumbrances" means the matters set forth in
Schedule 3 hereto, including, but not limited to, the instruments
securing, evidencing, or governing the Midlantic Term Loan, the
Senior Note Mortgage and the Senior Guarantee Mortgage.
"Facility Leases" means, collectively:
(1) the Marina Lease;
(2) any leases other than Capital Lease Obligations and the
Marina Lease where Mortgagor is tenant or sub-tenant; provided,
however, that the aggregate fixed rental payments paid or accrued
for any period of four consecutive fiscal quarters commencing
after the date hereof under all such leases (including payments
required to be made by the lessee in respect of taxes and
insurance, whether or not denominated as rent), shall not exceed
for such period (a) $2,000,000 or (b) $7,500,000 following the
time at which the Partnership shall have achieved EBITDA for any
period of four consecutive quarters in an amount not less than
$45.0 million; provided, further, that the Mortgagor may
designate certain such leases which are not material to the
operations of the Casino Hotel and which have aggregate fixed
rental payments (including payments required to be made by the
lessee in respect of taxes and insurance, whether or not
denominated as rent) not exceeding an aggregate of $300,000 per
year to be excluded from the leases covered by this clause (2);
and
(3) any and all modifications, extensions and renewals of
the leases described in clauses (1) and (2) above, to the extent
the same are permitted under Section 5.18.
"F,F&E Financing Agreement" has the meaning set forth in
Section 1.1 of the Trust Indenture.
(11)
<PAGE>
"Full Insurable Value" means the actual replacement cost
(excluding the costs of foundation, footing, excavation, paving,
landscaping and other similar, noninsurable improvements) of the
insurable properties in question.
"Guarantee" means the guarantee by Mortgagor of the
Company's Indenture Obligations (as defined in the Trust
Indenture) pursuant to Article Fourteen of the Trust Indenture.
"Holder" has the meaning set forth in Section 1.1 of the
Trust Indenture.
"Hotel" means that portion of the Casino Hotel not included
within the Casino.
"Impositions" has the meaning set forth in Section 5.7.
"Indebtedness" has the meaning set forth in Section 1.1 of
the Trust Indenture.
"Independent" when used with respect to any specified Person
means such a Person who (i) is in fact independent, (ii) does not
have any direct financial interest or any material indirect
financial interest in Mortgagor or in any other obligor upon the
Note or in any Affiliate of Mortgagor or of such other obligor
and (iii) is not connected with Mortgagor or such other obligor
or any Affiliate of Mortgagor or such other obligor as an
officer, employee, promoter, underwriter, trustee, partner,
director or person performing similar functions. Whenever it is
herein provided that any Independent Person's opinion or
certificate shall be furnished to Mortgagee, such Person shall be
appointed by a Mortgagor order and such opinion or certificate
shall state that the signer has read this definition and that the
signer is Independent within the meaning thereof. A Person who
is performing or who has performed services as an independent
contractor to any specified Person shall not be considered not
Independent merely by reason of the fact that such Person is
performing or has performed such services.
"Insurance Amount" has the meaning set forth in Section
5.10(a)(i).
"Insurance Requirements" means all terms of any insurance
policy covering or applicable to the Trust Estate or any part
thereof, all requirements of the issuer of any such policy, and
all orders, rules, regulations and other requirements of the
National Board of Fire Underwriters (or any other body exercising
similar functions) applicable to or affecting the Trust Estate or
any part thereof or any use or condition of the Trust Estate or
any part thereof.
(12)
<PAGE>
"Insurance Trustee" means the Trustee or, if the Trustee so
elects, any bank, trust company or insurance company with a net
worth in excess of $100,000,000, designated by the Trustee.
"Insurer" means (i) an insurance company or companies
selected by Mortgagor authorized to issue insurance in the State
of New Jersey with an A.M. Best rating level of A minus or better
and an A.M. Best financial size category of VIII or better or
(ii) Lloyds of London so long as its financial capacity is not
such that prudent owners of first-class casino and hotel
complexes in Atlantic City, New Jersey would be unwilling to
accept Lloyds of London; provided, that with respect to the
insurance required to be maintained pursuant to Section
5.10(a)(i), up to 1.0% of the total amount of such insurance in
excess of the first $10,000,000 thereof may be maintained with an
insurance company or companies not meeting the foregoing A.M.
Best rating level and/or A.M. Best financial size categories; and
provided, further, that Mortgagor shall in all events use
commercially reasonable efforts to obtain insurance issued by
insurance companies having an A.M. Best rating level of better
than A minus.
"Land" means, collectively, the Owned Land and the Leased
Land.
"Lease" means each lease or sublease (made by Mortgagor, as
lessor or sublessor, as the case may be) of any space in any
building or buildings, an interest in which building or buildings
constitutes a part of the Trust Estate, including every agreement
relating thereto or entered into in connection therewith and
every guarantee of the performance and observance of the
covenants, conditions and agreements to be performed by the
lessee or sublessee under any such lease or sublease. For
purposes hereof, the term "Lease" shall include any license
agreement, concession agreement or other occupancy agreement.
Notwithstanding the foregoing, the term "Lease" shall not include
any transient room rentals.
"Leased Facilities" means, collectively, the Leased Land and
any buildings and improvements now or hereafter located thereon.
"Leased Land" means, collectively, the Marina Lease and any
other land that is now or hereafter subject to a Facility Lease.
"Legal Requirements" means all laws, statutes, codes, acts,
ordinances, orders, judgments, decrees, injunctions, rules,
regulations, permits, licenses, authorizations, directions and
requirements (including, without limitation, the New Jersey
Casino Control Act, the New Jersey Environment Cleanup
Responsibility Act and the New Jersey Spill Compensation and
Control Act of 1976) of all governments, departments,
commissions, boards, courts, authorities, agencies, officials and
(13)
<PAGE>
officers, of governments, federal, state and municipal
(including, without limitation, the New Jersey Department of
Environmental Protection and Energy, the Atlantic City Bureau of
Investigations, the Division of Gaming Enforcement of the State
of New Jersey, and the Casino Control Commission of the State of
New Jersey), foreseen or unforeseen, ordinary or extraordinary,
which now are or at any time hereafter become applicable to the
Trust Estate or any part thereof, or any of the adjoining
sidewalks, or any use or condition of the Trust Estate or any
part thereof, including, without limitation, the use of the
Casino Hotel as a gaming or gambling facility.
"Lessors" means the lessors under the Facility Leases.
"Marina Lease" means the lease agreement made September 1,
1990 between the State of New Jersey, as Landlord, and Mortgagor,
as tenant, respecting property known as the Senator Frank S.
Farley State Marina, Atlantic City, New Jersey, being designated
as a portion of Block B-4, Lot 11 on the tax map of the City of
Atlantic City, Atlantic County, New Jersey, as more particularly
described on Schedule 2 appended hereto and made a part hereof,
together with all amendments, restatements, extensions and
renewals of said lease agreement.
"Midlantic Mortgage" means the Amended and Restated
Indenture of Mortgage, dated as of May 29, 1992, from the
Mortgagor to Midlantic National Bank, the Amended and Restated
Assignment of Leases and Rents, dated as of May 29, 1992, between
the same parties, and the Amended and Restated Assignment of
Operating Assets, dated as of May 29, 1992, between the same
parties and all amendments, restatements, extensions and renewals
thereof.
"Midlantic Term Loan" has the meaning set forth in
Section 1.1 of the Trust Indenture.
"Maturity" when used with respect to any Indebtedness means
the date on which the principal (or any portion thereof) of such
Indebtedness becomes due and payable as therein or herein
provided, whether at the Stated Maturity, upon acceleration,
optional redemption, required repurchase, scheduled principal
payment or otherwise.
"Mortgage Debt" has the meaning set forth in Section 1.1 of
the Trust Indenture.
"Mortgage Documents" has the meaning set forth in Section
1.1 of the Trust Indenture.
"Mortgage Notes" means the 11-3/4% Mortgage Notes due 2003
issued by the Company pursuant to the Trust Indenture.
(14)
<PAGE>
"Mortgagee" has the meaning set forth in the first paragraph
of this instrument and its successors.
"Mortgagor" means the Person named as "Mortgagor" in the
first paragraph of this instrument until a successor entity shall
have become such pursuant to the applicable provisions of this
Mortgage, and thereafter, except to the extent otherwise
contemplated by Section 4.2, "Mortgagor" shall mean such
successor entity exclusively.
"Mortgagor Order" and "Mortgagor Request" mean,
respectively, a written order or request signed with a Mortgagor
Signature and delivered to Mortgagee.
"Mortgagor Signature" means the signature of the President
or a Vice President of a corporate general partner of Mortgagor
or of a general partner of Mortgagor.
"Mortgagor's Certificate" means a certificate signed with a
Mortgagor Signature and delivered to Mortgagee.
"Note" means that certain Partnership Note of even date
herewith in the original principal amount of $242,141,304 made by
Mortgagor in favor of Mortgagee, a true copy of which note is
attached to the Trust Indenture as Exhibit A, and any amendments,
extensions, renewals, replacements or restatements of the same to
the extent permitted under the Trust Indenture.
"Note Mortgage" means a certain Indenture of Mortgage and
Security Agreement of even date herewith between Mortgagor, as
mortgagor, and the Company, as Mortgagee, and evidences a lien
pari passu to the Lien of this Mortgage.
"Notices" has the meaning set forth in Section 1.2.
"Operating Assets" has the meaning set forth in Granting
Clause Sixth.
"Opinion of Counsel" means a written opinion of counsel who
may (except as otherwise expressly provided in this Mortgage) be
an employee of Mortgagor or of an Affiliate of Mortgagor.
"Original Policy" means the ALTA Loan Policies of
Title Insurance issued by First American Title Insurance Company,
Chicago Title Insurance Company and Commonwealth Land Title
Insurance Company, pursuant to Title Commitment No. F237584L,
dated the date hereof.
"Outstanding Amount" has the meaning set forth in
Section 1.1 of the Trust Indenture.
(15)
<PAGE>
"Owned Land" has the meaning set forth in Granting Clause
First.
"Permits" means all licenses, franchises, authorizations,
statements of compliance, certificates of operation, certificates
of occupancy and permits required for the lawful ownership,
occupancy, operation and use of all or a material portion of the
Premises whether held by Mortgagor or any other Person (which may
be temporary or permanent) (including, without limitation, those
required for the use of the Casino Hotel as a licensed casino
facility), in accordance with all applicable Legal Requirements.
"Permitted Encumbrances" means:
(1) liens for taxes, assessments, or governmental charges
not yet due and payable, or if due and payable not
delinquent, to the extent that any fine, penalty, interest or
cost may be added for nonpayment thereof;
(2) Existing Encumbrances (including the Superior
Mortgages);
(3) F,F&E Financing Agreements permitted by the Trust
Indenture;
(4) the liens of the Mortgage Documents and any rights
granted as provided therein;
(5) the liens of the Trustee provided for in Section 6.6 of
the Trust Indenture and of the trustees under the corresponding
sections of the Senior Note Indenture and the PIK Note Indenture;
(6) any lien or encumbrance which, under the provisions of
Section 5.7, constitutes a Permitted Encumbrance;
(7) Restricted Encumbrances;
(8) Working Capital Facility Mortgage;
(9) any lien or encumbrance permitted under Section 5.3 of
this Mortgage;
(10) any lien or encumbrance securing purchase-money
indebtedness permitted by the Trust Indenture;
(11) modifications, refinancings, extensions, renewals or
replacements, in whole or in part, of the liens described in
clauses (2) through (10) of this definition to the extent
permitted by Section 5.19 hereof and the Trust Indenture; and
(12) any Facility Lease now existing or hereafter entered
into.
(16)
<PAGE>
"Person" means any individual, corporation, limited or
general partnership, joint venture, association, joint stock
company, trust, unincorporated organization or any other entity
or government or any agency or political subdivision thereof.
"PIK Note Indenture" means that certain indenture of even
date herewith among the Company, as issuer, the Mortgagor, as
guarantor, and First Bank National Association, as trustee, as it
may be amended from time to time, relating to the Company's PIK
Notes.
"PIK Notes" means the Company's 13 7/8% Pay-in-Kind Notes
due 2005.
"Premises" has the meaning set forth in Granting Clause
Fourth.
"Restoration" has the meaning set forth in Section
5.10(e)(iii).
"Restricted Encumbrances" means any Leases permitted by and
made in accordance with Section 5.12 of this Mortgage.
"Security Act" has the meaning set forth in
Section 1.1 of the Trust Indenture.
"Senior Guarantee Mortgage" means the Indenture of Mortgage
and Security Agreement, dated as of the date hereof, between the
trustee under the Senior Note Indenture, as mortgagee, and the
Partnership, as mortgagor, securing the guarantee set forth in
the Senior Note Indenture, and which evidences a lien pari passu
with the Senior Note Mortgage.
"Senior Indebtedness" means Indebtedness evidenced by the
Midlantic Term Loan, the Senior Notes, the Senior Guarantee and
the Working Capital Facility and any amendments, extensions,
renewals, replacements or restatements of any of the foregoing to
the extent permitted under the Trust Indenture.
"Senior Note Indenture" means that certain indenture of even
date herewith between the Mortgagor, as issuer, and the First
Bank National Association, as trustee, relating to the Senior
Notes.
"Senior Note Mortgage" means the Indenture of Mortgage and
Security Agreement, dated as of the date hereof, between the
Company, as mortgagee, and the Partnership, as mortgagor,
securing the Senior Partnership Note (as defined in the Trust
Indenture) and evidencing a lien pari passu with the lien of the
Senior Guarantee Mortgage.
(17)
<PAGE>
"Senior Notes" means the 11.5% Senior Secured Notes due 2000
issued by the Mortgagee under the Senior Note Indenture.
"Settlement Costs" has the meaning set forth in Section
5.17.
"Stated Maturity" when used with respect to any
Indebtedness, means the date specified in such Indebtedness as
the fixed date on which the principal of such Indebtedness is due
and payable.
"Superior Instrument Requirements" means the applicable
terms, conditions and provisions of any documentation which
constitutes, evidences, secures or governs any Senior
Indebtedness, together with the terms and provisions of the
Marina Lease.
"Superior Mortgages" means, collectively, the Midlantic
Mortgage, the Senior Note Mortgage, the Senior Guarantee
Mortgage, and a Working Capital Facility Mortgage, if obtained,
and any amendments, extensions, renewals or restatements of the
same to the extent permitted by the Trust Indenture.
"Taking" means the acquisition or condemnation by eminent
domain of the whole or any part of the Premises, by a competent
authority, for any public or quasi-public use or purpose.
"Tangible Personal Property" has the meaning set forth
in subclause (f) of Granting Clause Sixth.
"Trust Estate" has the meaning stated in the habendum to the
Granting Clauses.
"Trust Indenture" means that certain indenture of even date
herewith among Mortgagor, as guarantor, the Company, as issuer,
and the Trustee, as trustee, relating to the Mortgage Notes as it
may from time to time be supplemented, modified or amended by one
or more trust indentures or other instruments supplemental
thereto entered into pursuant to the applicable provisions
thereof, a form of which (without exhibits) is attached hereto as
Exhibit A.
"Trust Indenture Act" has the meaning set forth in
Section 1.1 of the Trust Indenture.
"Trustee" means the Person named as the "Trustee" in the
first paragraph of the Trust Indenture and any successor thereto.
"Uniform Commercial Code" means the New Jersey Uniform
Commercial Code N.J.S.A. 12A:1-101, et seq.
(18)
<PAGE>
"Working Capital Facility" has the meaning set forth in
Section 1.1 of the Trust Indenture.
"Working Capital Facility Mortgage" means any mortgage or
other security instrument or agreement which secures a Working
Capital Facility and which evidences a lien pari passu with the
lien of the Senior Note Mortgage.
Section 1.2. Notices.
(a) Any request, demand, authorization, direction, notice
(including, without limitation, a notice of default), consent,
waiver or other document provided or permitted by this Mortgage
to be made upon, given or furnished to, or filed with, Mortgagor,
Mortgagee or the Trustee (collectively, "Notices") shall be in
writing and shall be deemed given either (i) when delivered by
hand (including by overnight courier) or (ii) two days after
sending by registered or certified mail, postage prepaid,
addressed as follows:
To Mortgagor:
Trump's Castle Associates
Trump's Castle Casino Resort
Brigantine Boulevard and Huron Avenue
Atlantic City, New Jersey 08401
Attn: Chief Financial Officer
and
Willkie Farr & Gallagher
One Citicorp Center
153 East 53rd Street
New York, New York 10022
Attn: Thomas M. Cerabino, Esq.
To Mortgagee:
First Bank National Association
c/o First Trust National Association
180 East Fifth Street
St. Paul, Minnesota 55101
Attn: Corporate Trust Department
(b) By Notice to Mortgagor or Mortgagee either party may
designate additional or substitute addresses for Notices which,
notwithstanding Subsection (a) above, shall be deemed given when
received.
(19)
<PAGE>
Section 1.3. Form and Contents of
Documents Delivered to Mortgagee.
Whenever several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not
necessary that all such matters be certified by, or covered by
the opinion of, only one such Person, or that they be so
certified or covered by only one document, but one such Person
may certify or give an opinion with respect to some matters and
one or more other such Persons as to other such matters in one or
several documents.
Any certificate or opinion of a general partner of Mortgagor
may be based, insofar as it relates to legal matters, upon a
certificate or opinion of, or representations by, counsel, unless
such general partner knows that the certificate or opinion or
representations with respect to the matters upon which his
certificate or opinion is based are erroneous. Any Opinion of
Counsel may be based, insofar as it relates to factual matters,
upon a certificate or opinion of, or representations by, a
general partner of Mortgagor stating that the information with
respect to such factual matters is in the possession of
Mortgagor, unless such counsel knows that the certificate or
opinion or representations with respect to such matters are
erroneous. If appropriate to the matter being opined upon and to
the extent not prohibited by the Trust Indenture Act, conclusions
stated in any Opinion of Counsel may be subject to rights of
creditors and the availability of equitable remedies.
Whenever any Person is required to make, give or execute two
or more applications, requests, consents, certificates,
statements, opinions or other instruments under this Mortgage,
they may, but need not, be consolidated to form one instrument.
Whenever in this Mortgage, in connection with any
application or certificate or report to Mortgagee, it is provided
that Mortgagor shall deliver any document as a condition of the
granting of such application, or as evidence of Mortgagor's
compliance with any term hereof, it is intended that the truth
and accuracy, at the time of the granting of such application or
at the effective date of such certificate or report (as the case
may be), of the facts and opinions stated in such document shall
in such case be conditions precedent to the right of Mortgagor to
have such application granted or to the sufficiency of such
certificate or report.
Every application, certificate, report, affidavit, opinion,
consent, statement or other instrument required to be delivered
to Mortgagee under this Mortgage or under any other Mortgage
Document shall be in writing and shall be prepared and delivered
without cost or expense to Mortgagee.
(20)
<PAGE>
Section 1.4. Compliance Certificates and Opinions.
Upon any application or request by Mortgagor to Mortgagee to
take any action under any provision of this Mortgage, Mortgagor
shall furnish to Mortgagee a Mortgagor's Certificate stating that
all conditions precedent, if any, provided for in this Mortgage
relating to the proposed action have been complied with and an
Opinion of Counsel stating that in the opinion of such counsel
all such conditions precedent, if any, have been complied with,
except that in the case of any such application or request as to
which the furnishing of such documents is specifically required
by any provision of this Mortgage relating to such particular
application or request, no additional certificate or opinion need
be furnished. Every certificate or opinion with respect to
compliance with a condition or covenant provided for in this
Mortgage shall include:
(a) a statement that each individual signing such
certificate or opinion has read such condition or covenant and
the definitions herein relating thereto;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or
opinions contained in such certificate or opinion are based;
(c) a statement that, in the opinion of each such
individual, he has made such examination or investigation as is
necessary to enable him to express an informed opinion as to
whether or not such condition or covenant has been complied with;
and
(d) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 1.5. Effect of Headings and Table of Contents.
The Article and Section headings herein and in the Table of
Contents are for convenience only and shall not affect the
construction hereof.
Section 1.6. Successors and Assigns; Amendments.
(a) Subject to the provisions of Sections 1.10 and 4.2
hereof and Sections 3.11 and 8.2 of the Trust Indenture, this
Mortgage shall be binding upon and inure to the benefit of the
parties hereto and of the respective successors and assigns of
the parties hereto to the same effect as if each such successor
or assign were in each case named as a party to this Mortgage.
(b) This Mortgage may not be modified, amended, discharged,
released nor any of its provisions waived except by agreement in
(21)
<PAGE>
writing executed by Mortgagor and Mortgagee and in accordance
with the provisions of this Mortgage and the Trust Indenture.
Section 1.7. Separability Clause.
In case any provision in this Mortgage shall be invalid,
illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way
be affected or impaired thereby.
Section 1.8. Benefits of Mortgage.
Nothing in this Mortgage or in the Note, express or implied,
shall give to any Person, other than the parties hereto and their
successors and assigns, any benefit or any legal or equitable
right, remedy or claim under this Mortgage.
Section 1.9. Governing Law.
This Mortgage shall be deemed to be a contract under the
laws of the State of New Jersey and shall be construed in
accordance with and governed by the laws of the State of New
Jersey.
Section 1.10. Limitation on Liability.
Notwithstanding anything herein or in any other agreement,
document, certificate, instrument, statement or omission referred
to below to the contrary, Mortgagor is liable hereunder only to
the extent of the assets of Mortgagor and no other person or
entity, including, without limitation, any partner, officer,
committee or committee member of Mortgagor or any partner therein
or in any partnership Affiliate of Mortgagor, or any
incorporator, officer, director or shareholder of any corporate
partner of Mortgagor or of any corporate Affiliate of Mortgagor,
or any Affiliate or controlling person or entity of any of the
foregoing, or any agent, employee, or lender of any of the
foregoing, or any successor, personal representative, heir or
assign of any of the foregoing, in each case past, present or as
they may exist in the future, shall be liable in any respect
(including, without limitation, the breach of any representation,
warranty, covenant, agreement, condition or indemnification or
contribution undertaking contained herein or therein) under, in
connection with, arising out of or relating to this Mortgage, or
any other agreement, document, certificate, instrument or
statement (oral or written) related to, executed or to be
executed, delivered or to be delivered, or made or to be made, or
any omission made or to be made, in connection with any of the
foregoing or any of the transactions contemplated in any such
agreement, document, certificate, instrument, or statement. Any
agreement, document, certificate, statement or other instrument
to be executed simultaneously with, in connection with, arising
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out of or relating to this Mortgage or any other agreement,
document, certificate, statement or instrument referred to above,
or any agreement, document, certificate, statement or instrument
contemplated hereby shall contain language mutatis mutandis to
this Section 1.10 and, if such language is omitted, shall be
deemed to contain such language.
Section 1.11. Provisions Required by Trust Indenture.
Whenever the provisions of this Mortgage and the provisions
of the Trust Indenture shall be inconsistent, the provisions of
the Trust Indenture shall govern.
Section 1.12. Rights of Trustee as Mortgagee.
Except as otherwise provided in Section 6.2 of the Trust
Indenture:
(1) Mortgagee may rely, and shall be protected in
acting or refraining from acting, upon any resolution,
certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note,
other evidence of indebtedness or other paper or document
believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(2) any request or direction of Mortgagor mentioned
herein shall be sufficiently evidenced by a Mortgagor
Request or Mortgagor Order;
(3) whenever in the administration of this Mortgage,
Mortgagee shall deem it desirable that a matter be proved or
established prior to taking, suffering or omitting any
action hereunder, Mortgagee (unless other evidence be herein
specifically prescribed) may, in the absence of bad faith on
its part, rely upon a Mortgagor's Certificate;
(4) Mortgagee may consult with counsel and any written
advice of such counsel or any Opinion of Counsel shall be
full and complete authorization and protection in respect of
any action taken, suffered or omitted by Mortgagee hereunder
in good faith and in reliance thereon;
(5) Mortgagee shall be under no obligation to exercise
any of the rights or powers vested in it by this Mortgage at
the request or direction of any of the Holders pursuant to
the Trust Indenture, unless such Holders shall have offered
to Mortgagee reasonable security or indemnity against the
costs, expenses and liabilities which might be incurred
therein or thereby in compliance with such request or
direction;
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(6) Mortgagee shall not be bound to make any
investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order,
approval, appraisal, bond, debenture, note, coupon, security
or other paper or document but Mortgagee, in its discretion,
may make such further inquiry or investigation into such
facts or matters as it may see fit, and, if Mortgagee shall
determine to make such further inquiry or investigation, it
shall be entitled (subject to the express limitations with
respect thereto contained in this Mortgage) to examine the
books, records and premises of Mortgagor, personally or by
agent or attorney;
(7) Mortgagee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or
by or through agents or attorneys, and Mortgagee shall not
be responsible for any misconduct or negligence on the part
of any agent or attorney appointed with due care by it
hereunder;
(8) Mortgagee shall not be personally liable, in case
of entry by it upon the Trust Estate, for debts contracted
or liabilities or damages incurred in the management or
operation of the Trust Estate;
(9) Mortgagor shall pay or cause to be paid to the
Trustee all compensation and other amounts provided in
Section 6.6 of the Trust Indenture; and
(10) no provision of this Mortgage shall require
Mortgagee to expend or risk its own funds or otherwise incur
any financial liability in the performance of its
obligations hereunder, or in the exercise of any of its
rights or powers.
Section 1.13. Mortgage Subject to Casino Control Act.
Each provision of this Mortgage is subject to and shall be
enforced in compliance with the provisions of the New Jersey
Casino Control Act.
Section 1.14. Discharge of Lien.
If (a) Mortgagor shall pay or cause to be paid, or there
shall otherwise be paid, to Mortgagee all amounts required to be
paid by Mortgagor pursuant to this Mortgage, the Mortgage Notes
and the Guarantee and the conditions precedent for the Trust
Indenture to cease, determine and become null and void (except
for any surviving rights of transfer or exchange of the Mortgage
Notes provided in Section 13.1 of the Trust Indenture and for the
obligation to pay the Trustee's fees and expenses provided in
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Section 6.6 of the Trust Indenture) in accordance with Section
13.1 of the Trust Indenture shall have occurred, or (b) there
shall have occurred a "defeasance" (as defined in Section 4.2 of
the Trust Indenture) of the Mortgage Notes, or (c) there shall
have occurred a "covenant defeasance" (as defined in Section 4.3
of the Trust Indenture), then in any such case Mortgagee shall
promptly cancel and discharge the Mortgage Documents, including,
without limitation, this Mortgage, and any financing statements
filed in connection herewith and execute and deliver to Mortgagor
all such instruments as may be necessary, required or appropriate
to evidence such discharge and satisfaction of said lien or
liens.
Section 1.15. General Application.
(a) The remedies of Mortgagee upon any default by Mortgagor
in the fulfillment of any of its obligations hereunder shall be
limited in each instance by the provisions of Section 1.10,
whether or not the provisions providing for such remedies
explicitly refer to such Section.
(b) The assertion of any rights upon any Default shall be
subject in each instance to, if required, the giving of any
notice and the expiration of any grace period provided for in
Section 3.1 as a condition to such Default becoming an Event of
Default, unless the Trust Indenture Act requires otherwise, in
which case the Trust Indenture Act shall control.
(c) For the purposes of this Mortgage, it is understood
that an event which does not materially diminish the value of
Mortgagee's interest in the Trust Estate shall not be deemed an
"impairment of security," as that phrase is used in this
Mortgage.
Section 1.16. Mortgage Deemed to be Security Agreement.
To the extent that the grant of a security interest in any
portion of the Trust Estate is governed by the Uniform Commercial
Code, this Mortgage is hereby deemed to be as well a security
agreement under the Uniform Commercial Code for the purpose of
creating hereby a security interest in all of Mortgagor's right,
title and interest in and to said property, securing the
obligations secured hereby, for the benefit of Mortgagee.
Section 1.17. No Duplication of Notices or Payments.
Whenever it is provided in this Mortgage and the Note
Mortgage that Mortgagor shall deliver any notice or document, or
is required to make any payment, the delivery of such notice or
document or the making of such payment shall constitute the
delivery of such notice or document or the making of such payment
in satisfaction of the terms, conditions and provisions of both
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this Mortgage and the Note Mortgage, provided that such notice,
document or payment states, or is accompanied by a letter
stating, that such notice, document or payment is being delivered
in satisfaction of the terms, conditions and provisions of both
this Mortgage and the Note Mortgage.
ARTICLE TWO
RELEASE; SUBORDINATION
Section 2.1. Possession by Mortgagor.
So long as there shall have been no acceleration of maturity
of the Mortgage Notes, Mortgagor shall be suffered and permitted,
with power freely and without let or hindrance on the part of
Mortgagee, subject to the provisions of this Mortgage and the
Trust Indenture, to possess, use, manage, operate and enjoy the
Trust Estate and every part thereof and to collect, receive, use,
invest and dispose of the rents, issues, tolls, profits, revenues
and other income from the Trust Estate or any part thereof, to
use, consume and dispose of any consumable, goods, wares and
merchandise in the ordinary course of business of operating the
Casino Hotel and to adjust and settle all matters relating to
choses in action, leases and contracts.
Section 2.2. Obsolete Property.
Mortgagor shall have the right, at any time and from time to
time, unless an Event of Default shall have occurred and be
continuing, without any release from or consent by Mortgagee:
(a) to sell or dispose of, free from the lien of this
Mortgage, any Tangible Personal Property which, in its reasonable
opinion, may have become obsolete or unfit for use or which is no
longer necessary in the conduct of its businesses or the
operation of the Trust Estate, and no purchaser of any such
property shall be bound to inquire into any question affecting
Mortgagor's right to sell or otherwise dispose of the same free
from the lien of this Mortgage;
(b) to alter, repair, replace, change the location or
position of and add to any Tangible Personal Property; provided,
however, that no change shall be made in the location of any such
property subject to the lien of this Mortgage which would in any
respect impair the security of this Mortgage upon such property;
or
(c) to renew, extend, surrender, terminate, modify or amend
any leases of Tangible Personal Property, when, in Mortgagor's
reasonable opinion, it is prudent to do so.
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Mortgagor shall retain any net cash proceeds received from
the sale or disposition of any Tangible Personal Property under
Subsection (a) of this Section 2.2, in the business of operating
the Casino Hotel.
Mortgagee shall be under no responsibility or duty with
respect to the exercise of the rights of Mortgagor under this
Section 2.2 or the application of the proceeds of any sale or
disposition of any Tangible Personal Property.
Mortgagee shall, from time to time, promptly execute any
written instrument in form satisfactory to Mortgagee to confirm
the propriety of any action taken by Mortgagor under this Section
2.2, upon receipt by Mortgagee of a Mortgagor Request requesting
the same, together with a Mortgagor's Certificate stating that
the action so to be confirmed was duly taken in conformity with
this Section 2.2, and that the execution of such written
instrument is appropriate to confirm the propriety of such action
under this Section 2.2; provided, that Mortgagee shall have no
liability thereunder and all costs and expenses (including,
without limitation, reasonable attorneys' fees and disbursements)
shall be paid by Mortgagor.
Section 2.3. F,F&E Financing Agreements.
Notwithstanding any provision contained in this Mortgage or
the Trust Indenture to the contrary, if Mortgagor acquires
Tangible Personal Property and/or other items constituting
operating assets subject to any F,F&E Financing Agreement, or
becomes the lessee under a lease for any of the same and if the
document evidencing such F,F&E Financing Agreement prohibits
subordinate liens or the provisions of any such lease prohibits
any assignment thereof by the lessee, and if any such prohibition
is customary with respect to similar transactions of the lender
or lessor (as evidenced by a Mortgagor's Certificate delivered to
Mortgagee, together with such other evidence as Mortgagee may
reasonably request), as the case may be, then the property so
purchased or the lessee's interest in the lease, as the case may
be, shall be deemed to be Excepted Property. If any such F,F&E
Financing Agreement permits subordinate liens, then Mortgagee
shall execute and deliver to Mortgagor, at Mortgagor's expense,
such documents as the holder of such F,F&E Financing Agreement
may reasonably request to evidence the subordination of the lien
of this Mortgage and the Mortgage Documents to the lien of such
F,F&E Financing Agreement; provided, however, that Mortgagee
shall have no obligation to execute and deliver such documents,
and the lien of this Mortgage shall not be subordinate to any
such F,F&E Financing Agreement, unless (a) such F,F&E Financing
Agreement shall contain a provision binding upon the holder of
such F,F&E Financing Agreement that (i) if the holder of such
F,F&E Financing Agreement shall give to Mortgagor any notice of
default thereunder, such holder shall at the same time and in the
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same manner serve a copy of such notice on Mortgagee at the
address designated herein (or such other address as Mortgagee may
designate by notice given to the holder of such F,F&E Financing
Agreement in the manner provided for notices hereunder), and that
no such notice to Mortgagor shall be deemed to have been duly
given unless and until a copy thereof has been so provided to
Mortgagee, and (ii) promptly following the last date upon which
Mortgagor may cure such default, if Mortgagor shall fail to cure
such default, the holder of such F,F&E Financing Agreement shall
give notice to Mortgagee stating the manner in which Mortgagor
shall have failed to cure its said default, in which event
Mortgagee shall be permitted to cure the default and, with
respect thereto, Mortgagee shall have the same amount of time,
after such notice, within which to cure the said default, as is
provided for under the provisions of such F,F&E Financing
Agreement to be given to Mortgagor therefor after notice or (b)
Mortgagor delivers to Mortgagee a Mortgagor's Certificate
certifying that (i) the provision described in clause (a) is not
customarily included by the lender or lessor in its F,F&E
Financing Agreements in similar transactions and (ii) although
Mortgagor has used reasonable efforts to have included in such
F,F&E Financing Agreement such a provision, Mortgagor has been
unsuccessful in obtaining such a provision.
ARTICLE THREE
REMEDIES
Section 3.1. Events of Default.
"Event of Default," whenever used herein, means any one of
the following events (including any applicable notice requirement
and any period of grace, as specified in this Section 3.1)
(whatever the reason for such event and whether it shall be
voluntary or involuntary or be effected by operation of law or
pursuant to any judgment, decree or order of any court or any
order, rule or regulation of any administrative or governmental
body):
(a) default in the payment or performance of any obligation
under the Guarantee at the time such payment or performance is
required under Article Fourteen of the Trust Indentures; or
(b) default in the payment of any interest on the Mortgage
Notes or the Note when such interest becomes due and payable and
continuance of such default for a period of 30 days; or
(c) default in the payment of all or any portion of the
principal of (or premium, if any, on) the Mortgage Notes or the
Note when the same becomes due and payable at its Maturity; or
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(d) default in the payment of any other sum due under the
Mortgage Notes or the Note or this Mortgage, and the continuance
of such default for a period of 30 days after there has been
given to Mortgagor a notice specifying such default and requiring
it to be remedied and stating that such notice is a "Notice of
Default" hereunder; or
(e) default in the performance, or breach, of any
covenant of Mortgagor in this Mortgage (other than a covenant, a
default in the performance or breach of which is elsewhere in
this Section 3.1 specifically dealt with), and continuance of
such default or breach for a period of 30 days after there has
been given to Mortgagor a notice specifying such default or
breach and requiring it to be remedied and stating that such
notice is a "Notice of Default" hereunder, unless (i) the default
or breach is of such a nature that is curable but not susceptible
of being cured with due diligence within such 30-day period (for
reasons other than the lack of funds), (ii) Mortgagor delivers an
Mortgagor's Certificate to Mortgagee within such 30-day period
stating (A) the applicability of the provisions of clause (i) to
such default or breach, (B) Mortgagor's intention to remedy such
default or breach with reasonable diligence and (C) the steps
which Mortgagor has undertaken or intends to undertake to remedy
such default or breach and (iii) Mortgagor delivers to Mortgagee
additional Mortgagor's Certificates every 30 days thereafter
updating the information contained in the certificate described
in clause (ii), in which case such 30-day period shall be
extended for such further period of time (but in no event more
than 60 days after the last day of such 30-day period) as may
reasonably be required to cure the same, provided that Mortgagor
is then proceeding and thereafter continues to proceed to cure
the same with reasonable diligence; or
(f) an "Event of Default," as defined in Section 5.1 of the
Trust Indenture, shall occur and be continuing; or
(g) default by Mortgagor under any of the terms of any
Facility Lease which shall not be fully cured or waived prior to
the expiration of any grace period (as such grace period may be
extended) contained in such Facility Lease; or
(h) default by Mortgagor under any of the terms of any
Superior Mortgage with respect to which there is no grace period
and no notice is required to be given, or, if a grace period is
provided in such Superior Mortgage, which shall not be fully
cured or waived prior to the expiration of such grace period (as
such grace period may be extended); or
(i) default in the performance, or breach, of any of the
provisions of Article Four hereof; or
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(j) if any representation or warranty of Mortgagor set
forth in this Mortgage or in any notice, certificate, demand or
request delivered to Mortgagee pursuant to this Mortgage shall
prove to be incorrect in any material respect as of the time when
made; or
(k) an "Event of Default, as defined in Section 3.1 of the
Note Mortgage, shall occur and be continuing.
An Event of Default shall not be deemed to exist by reason
of any event which Mortgagor is contesting in compliance with the
provisions of Section 5.8.
Section 3.2. [Intentionally Omitted]
Section 3.3. Application of Moneys Received by Mortgagee.
Any moneys received by Mortgagee pursuant to the provisions
of this Article Three (including moneys received by the Trustee
after any action or act by Mortgagee under Section 3.10) shall be
applied by Mortgagee in accordance with the provisions of Section
5.6 of the Trust Indenture.
Section 3.4. Restoration of Rights and Remedies.
If Mortgagee has instituted any proceeding to enforce any
right or remedy under this Mortgage and such proceeding has been
discontinued or abandoned for any reason or has been determined
adversely to Mortgagee, then and in every such case Mortgagor and
Mortgagee shall, subject to any determination in such proceeding,
be restored to their respective former positions hereunder, and
thereafter all rights and remedies of Mortgagee shall continue as
though no such proceeding had been instituted.
Section 3.5. Rights and Remedies Cumulative.
No right or remedy herein conferred upon or reserved to
Mortgagee is intended to be exclusive of any other right or
remedy, and every right and remedy shall, to the extent permitted
by law, be cumulative and in addition to every other right and
remedy given hereunder or now or hereafter existing at law or in
equity or otherwise. The assertion or employment of any right or
remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
Section 3.6. Delay or Omission Not Waiver.
No delay or omission of Mortgagee to exercise any right or
remedy accruing upon an Event of Default shall impair any such
right or remedy or constitute a waiver of any such Event of
Default or an acquiescence therein. Every right and remedy given
by this Article Three or by applicable law to Mortgagee may be
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exercised, from time to time, and as often as may be deemed
expedient, by Mortgagee.
Section 3.7. Undertaking for Costs.
If any action or proceeding shall be commenced (including,
without limitation, an action to foreclose this Mortgage or to
collect the indebtedness secured hereby) to which action or
proceeding Mortgagee is made or becomes a party, or in which it
becomes necessary in the opinion of Mortgagee to defend or uphold
the lien of this Mortgage, Mortgagor shall pay to Mortgagee all
expenses, including, without limitation, reasonable attorneys'
fees, disbursements and court costs incurred by Mortgagee in
connection therewith, together with interest at the rate then
payable on the Note, from the date of payment less the net amount
received by Mortgagee, as its interests may appear under any
title insurance policy, and, until paid, all such expenses,
together with interest as aforesaid, shall be secured by the lien
of this Mortgage.
Section 3.8. Waiver of Appraisement and Other Laws.
To the full extent that it may lawfully so agree, Mortgagor
will not at any time insist upon, plead, claim or take the
benefit or advantage of, any appraisement, valuation, stay,
extension or redemption law now or hereafter in force, in order
to prevent or hinder the enforcement of this Mortgage or the
absolute sale of the Trust Estate, or any part thereof, or the
possession thereof by any purchaser at any sale under this
Article Three; and Mortgagor, for itself and all who may claim
under Mortgagor, so far as Mortgagor or they now or hereafter may
lawfully do so, hereby waives the benefit of all such laws.
Mortgagor, for itself and all who may claim under Mortgagor,
waives, to the extent that Mortgagor may lawfully do so, all
right to have the property in the Trust Estate marshalled upon
any foreclosure hereof, and agrees that any court having
jurisdiction to foreclose this Mortgage may order the sale of the
Trust Estate as an entirety.
If any law in this Section 3.8 referred to and now in force,
of which Mortgagor or its successor or successors might take
advantage despite this Section 3.8, shall hereafter be repealed
or cease to be in force, such law shall not thereafter be deemed
to constitute any part of the contract herein contained or to
preclude the application of this Section 3.8.
Section 3.9. Entry.
Mortgagor agrees that upon the occurrence, and during the
continuance, of an Event of Default, Mortgagor, upon demand of
Mortgagee, shall forthwith surrender to Mortgagee the actual
possession of, and it shall be lawful for Mortgagee by such
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officers or agents as it may appoint to enter and take possession
of, the Trust Estate (and the books and papers of Mortgagor), and
to hold, operate and manage the Trust Estate (including the
making of all needful repairs, and such alterations, additions
and improvements as Mortgagee shall deem wise) and to receive the
rents, issues, tolls, profits, revenues and other income thereof,
and, after deducting the costs and expenses of entering, taking
possession, holding, operating and managing the Trust Estate, as
well as payments for taxes, insurance and other proper charges
upon the Trust Estate and reasonable compensation to itself, its
agents and counsel, to apply the same as provided in Section 3.3;
provided, however, that Mortgagee's rights under this Section 3.9
shall be subject to the provisions of the New Jersey Casino
Control Act and Section 3.14. Whenever all that is then due upon
the Mortgage Notes under any of the terms of the Guarantee or
this Mortgage shall have been paid and all defaults hereunder
shall have been cured, Mortgagee shall surrender possession to
Mortgagor.
Section 3.10. Power of Sale; Suits for Enforcement.
If an Event of Default shall occur and be continuing,
Mortgagee, with or without entry, in its discretion, may:
(a) sell, subject to any mandatory requirements of
applicable law, the Trust Estate as an entirety, or in such
parcels, as Mortgagee may determine, to the highest bidder at
public auction at such place and at such time (which sale may be
adjourned by Mortgagee from time to time in its discretion by
announcement at the time and place fixed for such sale, without
further notice) and upon such terms as Mortgagee may fix and
briefly specify in a notice of sale to be published as required
by law; or
(b) proceed to protect and enforce its rights under this
Mortgage by sale pursuant to judicial proceedings or by a suit,
action or proceeding in equity or at law or otherwise, whether
for the specific performance of any covenant or agreement
contained in this Mortgage or in aid of the execution of any
power granted in this Mortgage or for the foreclosure of this
Mortgage or for the enforcement of any other legal, equitable or
other remedy, as Mortgagee shall deem most effectual to protect
and enforce any of the rights of Mortgagee; the failure to join
tenants shall not be asserted as a defense to any foreclosure or
proceeding to enforce the rights of Mortgagee.
Section 3.11. Incidents of Sale.
Upon any sale of any of the Trust Estate, whether made under
the power of sale hereby given or pursuant to judicial
proceedings, to the extent permitted by law:
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(a) subject to the provisions of Section 3.14 and the
receipt of any required prior approvals of the New Jersey Casino
Control Commission, Mortgagee may bid for and purchase the
property offered for sale, and upon compliance with the terms of
sale may hold, retain, possess and dispose of such property,
without further accountability, and may, in paying the purchase
money therefor, deliver the Mortgage Notes or claims for interest
thereon in lieu of cash to the amount which shall, upon
distribution of the net proceeds of such sale, be payable
thereon, and the Note, in case the amounts so payable thereon;
(b) Mortgagee may make and deliver to the purchaser or
purchasers a good and sufficient deed, bill of sale and
instrument of assignment and transfer of the property sold;
(c) Mortgagee is hereby irrevocably appointed the true and
lawful attorney of Mortgagor, in its name and stead, to make all
necessary deeds, bills of sale and instruments of assignment and
transfer of the property thus sold; and for that purpose it may
execute all necessary deeds, bills of sale and instruments of
assignment and transfer, and may substitute one or more persons,
firms or corporations with like power, Mortgagor hereby ratifying
and confirming all that its said attorney or such substitute or
substitutes shall lawfully do by virtue hereof; but if so
requested by Mortgagee or by any purchaser, Mortgagor shall
ratify and confirm any such sale or transfer by executing and
delivering to Mortgagee or to such purchaser or purchasers all
proper deeds, bills of sale, instruments of assignment and
transfer and releases as may be designated in any such request;
(d) all right, title, interest, claim and demand
whatsoever, either at law or in equity or otherwise, of Mortgagor
of, in and to the property so sold shall be divested and such
sale shall be a perpetual bar both at law and in equity against
Mortgagor, its successors and assigns, and against any and all
persons claiming or who may claim the property sold or any part
thereof from, through or under Mortgagor, its successors and
assigns; and
(e) the receipt of Mortgagee or of the officer making such
sale shall be a sufficient discharge to the purchaser or
purchasers at such sale for his or their purchase money and such
purchaser or purchasers and his or their assigns or personal
representatives shall not, after paying such purchase money and
receiving such receipt, be obliged to see to the application of
such purchase money, or be in anywise answerable for any loss,
misapplication or non-application thereof.
Section 3.12. Receiver.
Upon the occurrence of an Event of Default and commencement
of judicial proceedings by Mortgagee to enforce any right under
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this Mortgage, Mortgagee shall be entitled, as against Mortgagor,
without notice or demand and without regard to the adequacy of
the security for the Mortgage Notes or the Guarantee or the
solvency of Mortgagor, to the appointment of a receiver of the
Trust Estate, and of the rents, issues, profits, revenues and
other income thereof; provided, however, that Mortgagee's rights
under this Section 3.12 shall be subject to the provisions of the
New Jersey Casino Control Act and Section 3.14 hereof.
Section 3.13. Suits to Protect the Trust Estate.
Mortgagor hereby acknowledges the right of Mortgagee, in the
name and on behalf of Mortgagor, (a) to appear in and defend any
action or proceeding brought with respect to the Trust Estate or
any part thereof and (b) upon 5 days' prior notice to Mortgagor
(or such shorter period or without notice if deemed necessary and
appropriate by Mortgagee), to institute and to maintain such
proceedings as Mortgagee may deem necessary and appropriate, but
in the case of (a) and (b) only to prevent any impairment of
security or any impairment of the Trust Estate by any acts which
may be unlawful or in violation of this Mortgage and to protect
Mortgagee's interests in the Trust Estate and in the rents,
issues, profits, revenues and other income arising therefrom,
including the right to institute and maintain proceedings to
restrain the enforcement of or compliance with any governmental
enactment, rule or order that may be unconstitutional or
otherwise invalid, if the enforcement of or compliance with such
enactment, rule or order would impair the security hereunder or
be materially prejudicial to the interests of Mortgagee.
Section 3.14. Management of the Premises.
Without limiting the generality of any other provision of
this Article Three, following an Event of Default and the taking
of possession of the Trust Estate or any part thereof by
Mortgagee and/or the appointment of a receiver of the Trust
Estate or any part thereof, Mortgagee or any such receiver shall
be authorized, in addition to the rights and powers of Mortgagee
and such receiver set forth elsewhere in this Mortgage, to take
any action permitted under Section 5.17 of the Trust Indenture.
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ARTICLE FOUR
CONSOLIDATION, MERGER, CONVEYANCE,
TRANSFER OR LEASE
Section 4.1. Consolidation, Merger, Conveyance
or Transfer only on Certain Terms.
Mortgagor shall comply with all provisions applicable to
Mortgagor in Article Eight of the Trust Indenture.
Section 4.2. Successor Entity Substituted.
Upon any consolidation or merger, or any sale, assignment,
conveyance, transfer or disposition of the Trust Estate or any
portion thereof in accordance with Section 8.1 of the Trust
Indenture (other than a lease), the successor Person formed by
such consolidation or into which Mortgagor is merged or the
successor Person to which such sale, assignment, conveyance,
transfer or disposition is made shall succeed to, and be
substituted for, and may exercise every right and power of,
Mortgagor under this Mortgage with the same effect as if such
successor had been named as Mortgagor herein; and thereafter,
except in the case of a lease, the Person named as "Mortgagor" in
the first paragraph of this instrument or any successor Person
which shall theretofore have become such in the manner prescribed
in this Article shall be discharged from all obligations and
covenants under this Mortgage.
ARTICLE FIVE
COVENANTS AND REPRESENTATIONS OF MORTGAGOR
Section 5.1. Performance of Guarantee Obligations.
Mortgagor shall duly and punctually pay and perform its
obligations under the Guarantee in accordance with the terms of
the Trust Indenture (including, without limitation, Article
Fourteen thereof).
Section 5.2. F,F&E Financing Agreements.
Mortgagor shall comply with all of the terms and conditions
set forth in any F,F&E Financing Agreements before the expiration
of any applicable notice and cure periods contained in the F,F&E
Financing Agreements.
Section 5.3. Limitations on Liens and Transfers.
(a) Mortgagor shall not create, incur, suffer or permit to
be created or incurred or to exist any mortgage, lien, charge or
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encumbrance on or pledge of any of the Trust Estate, other than
(i) Permitted Encumbrances, (ii) a notice of intention filed by a
mechanic, materialman or laborer under the New Jersey mechanic's
lien law, and (iii) a building contract filed by a contractor or
subcontractor under the New Jersey mechanic's lien law. Without
limiting the generality of the foregoing sentence but
notwithstanding the provisions of the foregoing sentence,
Mortgagor shall not be deemed to have breached the provisions of
the foregoing sentence by virtue of the existence of a lien for
Impositions or mechanics' liens so long as Mortgagor is in good
faith contesting the validity of the same in accordance with the
provisions of Section 5.8.
(b) The lien of this Mortgage on the date hereof shall be
subject and subordinate to the lien of any Existing Encumbrances
to the extent that each thereof encumbers Mortgagor's interest in
the Trust Estate or any part thereof. The foregoing provisions
of this Section 5.3(b) shall be self-operative and no further
instrument shall be required to give effect to such
subordination. Mortgagee shall, however, from time to time,
after receipt of a Mortgagor Request therefor (accompanied by a
Mortgagor's Certificate stating that said conditions have been
satisfied) execute instruments in form and substance reasonably
satisfactory to the holder of a particular Superior Mortgage
confirming such subordination.
(c) Except as otherwise expressly permitted under this
Mortgage and the Trust Indenture (including, without limitation,
Article Eight of the Trust Indenture), Mortgagor shall not sell,
assign, lease or otherwise transfer all or any portion of the
Trust Estate or any interest therein. Notwithstanding the
foregoing, Mortgagor shall have the right, at any time and from
time to time, unless an Event of Default shall have occurred and
be continuing, without any release from or consent by Mortgagee,
to grant interests in the Owned Land in the nature of
rights-of-way or easements, or other rights or privileges in the
nature of easements; provided, (i) that none of the same will
reduce or impair, in any material respect, (A) the value or
usefulness of the Trust Estate or any part thereof or (B) the
normal operation of the Casino Hotel in accordance with all Legal
Requirements and all Permits, (ii) Mortgagor has delivered to
Mortgagee a Mortgagor's Certificate, dated not earlier than 10
days prior to the date of each such grant, certifying that (A) no
Event of Default has occurred and is continuing and (B) the
conditions set forth in this Section 5.3(c) for such grant have
been fulfilled and (iii) Mortgagor has delivered to Mortgagee a
duplicate original of the instrument, if any, pursuant to which
such grant is to be made, and such other instruments,
certificates and opinions as Mortgagee may reasonably request.
The foregoing provisions of this Section 5.3(c) shall be
self-operative and no further instrument shall be required to
evidence the consent of Mortgagee to the grant or other
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conveyance of such rights-of-way or easements. Mortgagee shall,
however, from time to time, after receipt of a Mortgagor Request
therefor (accompanied by a Mortgagor's Certificate stating that
said conditions have been satisfied) execute instruments in form
and substance reasonably satisfactory to Mortgagee confirming the
permissibility of such grant or other conveyance.
Section 5.4. Environmental.
Without limiting the generality of any other provision of
this Mortgage, Mortgagor covenants, represents and warrants to
Mortgagee as follows:
(a) Mortgagor shall comply with any and all federal, state
and local environmental legislation, rules, and regulations in
effect as of the date of this Mortgage and subsequent thereto,
including, without limitation, the Spill Compensation and Control
Act (N.J.S.A. 58:10-23. 11 et seq.) (the"Spill Act"); the
Industrial Site Recovery Act (N.J.S.A. 13:1K-6 et seq.) ("ISRA");
the Solid Waste Management Act (N.J.S.A. 13:E-1 et seq.); the
Resource, Conservation and Recovery Act (42 U.S.C. Section 6901
et seq.) ("RCRA"); the Comprehensive Environmental Response,
Compensation and Liability Act (42 U.S.C. Section 9601 et seq.)
("CERCLA") and such other environmental legislation, rules and
regulations, as are in or may come into effect and apply to (i)
Mortgagor and/or Mortgagee with respect to the Premises or (ii)
the transactions contemplated hereby, and as to any occupants or
users of the collateral, whether as lessees, tenants, licensees
or otherwise, Mortgagor shall use its best efforts to cause same
to comply with said legislation, rules and regulations.
Mortgagor agrees to pay all costs required in connection with
compliance with the foregoing legislation, rules and regulations.
(b) Mortgagor has not used in the past, nor shall Mortgagor
use in the future, the Premises for the purpose of refining,
producing, storing, handling, transferring, processing or
transporting "Hazardous Substances", as such term is defined in
ISRA, the Spill Act, CERCLA or the regulations relating thereto,
except that Mortgagor and its subsidiaries have used, and
Mortgagor may continue in the future to use, substances in the
operation and maintenance of the Premises, including, without
limitation, heating oil, gasoline and cleaning chemicals which
could be considered as "Hazardous Substances" under the preceding
definition.
(c) To the best of Mortgagor's knowledge, after due inquiry
and investigation, none of the real property owned, leased and/or
occupied by Mortgagor and located in the State of New Jersey,
including, without limitation, the Premises, has been or is now
being used as a "Major Facility" as such term is defined in
N.J.S.A. 58:10-23.11b(1). Mortgagor will not use the Premises in
the future as a "Major Facility".
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(d) To the best of Mortgagor's knowledge, after due inquiry
and investigation, no lien has been attached to any revenues or
any real or personal property owned by Mortgagor or the Premises,
as a result of the Chief Executive of the New Jersey Spill
Compensation Fund expending monies from said fund to pay for
"Cleanup Costs", as such term is defined in N.J.S.A.
58:10-23.11b(d), arising from an intentional or unintentional
action or omission of Mortgagor or any previous owner and/or
operator of such real property.
(e) There is no asbestos or asbestos containing material on
the Premises. To the best of Mortgagor's knowledge, there are no
underground storage tanks located at the Premises, other than
those tanks previously disclosed to Mortgagee and which are
maintained in accordance with all material Legal Requirements.
Mortgagor has not installed or placed, or permitted to be
installed or placed, any underground storage tanks at or on the
Premises, other than those tanks previously disclosed to
Mortgagee and which are maintained in accordance with all
material Legal Requirements. Underground storage tanks shall
have the definition as set forth in N.J.S.A. 58:10A-22(p).
(f) Mortgagor has not received a summons, citation,
directive, letter, other written communication, or, to the best
of its knowledge, any oral communication, from the New Jersey
Department of Environmental Protection and Energy or from any
other person, firm or corporation concerning any intentional or
unintentional action or omission on Mortgagor's part resulting in
the releasing, spilling, leaking, pumping, pouring, emitting,
emptying or dumping of "Hazardous Substances", as such term is
defined in N.J.S.A. 58:10-23.11b(k), into the waters or onto the
lands of the State of New Jersey, or into the waters outside the
jurisdiction of the State of New Jersey, in either case resulting
in damage to the lands, waters, fish, shellfish, wildlife, biota,
air and other resources owned, managed, held in trust or
otherwise controlled by the State of New Jersey.
(g) In connection with any purchase of the Premises or any
business or assets located thereon or any "closing, terminating
or transferring operations" of any "industrial establishment", as
that term is defined in ISRA, occurring on or after December 31,
1983, Mortgagor required that the owner and or operator of the
industrial establishment comply with the provisions of ECRA and
the owner and or operator did comply therewith.
(h) Upon the occurrence of an Event (as hereinafter
defined), Mortgagee shall have the right to have its consultants
perform a comprehensive environmental audit of the Premises.
Such audit shall be conducted by an environmental consultant
chosen by Mortgagee and may include a visual survey, a record
review, an area reconnaissance assessing the presence of
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hazardous or toxic waste or substances, PCBs or storage tanks at
the Premises, an asbestos survey of the Premises, which may
include random sampling of the improvements and air quality
testing, and such further site assessments as Mortgagee may
reasonably require due to the results obtained from the
foregoing. Mortgagor grants Mortgagee, its agents, consultants
and contractors the right to enter the Premises for the purposes
of performing such studies and the cost of such studies shall be
due and payable by Mortgagor to Mortgagee upon demand and shall
be secured by the lien of this Mortgage. Mortgagee shall direct
the environmental consultant to use its best efforts not to
hinder Mortgagor's or any tenant's operations when conducting
such audit, sampling or inspections. For purposes of this
paragraph, the term "Event" shall mean (i) the occurrence of any
Event of Default, (ii) the issuance of any summons, citation,
directive or similar written notice from the New Jersey
Department of Environmental Protection and Energy or from any
other local, state or federal entity or from any other person,
firm or corporation concerning any alleged material violation of
any and all federal, state and local environmental legislation,
rules and regulations in effect as of the date of this Mortgage
and subsequent thereto or (iii) the initiation of any legal
action, suits or other legal or administrative proceedings
relating to or in connection with any alleged violation of any
and all federal, state and local environmental legislation, rules
and regulations in effect as of the date of this Mortgage and
subsequent thereto.
(i) If a lien shall be filed against the Premises by the
New Jersey Department of Environmental Protection and Energy,
pursuant to and in accordance with the provisions of N.J.S.A.
58:10-23.11f(f), as a result of the Chief Executive of the New
Jersey Spill Compensation Fund having expended monies from said
fund to pay for "Damages", as such term is defined in N.J.S.A.
58:10-23.11g, and/or "Cleanup and Removal-Costs", as such term is
defined in N.J.S.A. 58:10-23(b), arising from an intentional or
unintentional action or omission of Mortgagor resulting in the
releasing, spilling, pumping, pouring, emitting, emptying or
dumping of "Hazardous Substances", as such term is defined in
N.J.S.A. 58:10-23.11(b)k into waters of the State of New Jersey
or onto lands from which it might flow or drain into said waters,
then, unless there is a good faith basis for contesting such lien
and Mortgagor is so contesting such lien in accordance with
Section 5.9, Mortgagor shall, within 30 days from the date that
Mortgagor is given notice that the lien has been placed against
the Premises or within such shorter period of time if the State
of New Jersey has commenced steps to cause the Premises to be
sold pursuant to the lien, either (i) pay the claim and remove
the lien from the Premises, or (ii) furnish (A) a bond
satisfactory to a title company selected by Mortgagee (the "Title
Insurer") in the amount of the claim out of which the lien
arises, (B) to the Trustee, a cash deposit (which may be
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disbursed by the Trustee in its sole discretion) in the amount of
the claim out of which the lien arises, or (C) other security
reasonably satisfactory to Mortgagee in an amount sufficient to
discharge the claim out of which the lien arises.
(j) Mortgagor shall use its best efforts to cause
compliance by all lessees with all applicable Legal Requirements
relating to environmental protection.
(k) Mortgagor shall promptly provide Mortgagee with copies
of all notices received by or prepared by Mortgagor in connection
with ISRA, CERCLA, the Spill Act, RCRA or any other environmental
law, rule or regulation relating to the Premises. For purposes
of this paragraph, the term "notice" shall mean any summons,
citation, directive, order, claim, pleading, letter, application,
filing, report, findings, declarations or other materials
pertinent to compliance of the Trust Estate and Mortgagor with
such environmental laws, rules or regulations.
(l) If this Mortgage is foreclosed, Mortgagor shall deliver
the Premises in compliance with all applicable federal, state and
local environmental laws, ordinances, rules and regulations,
including, without limitation, ISRA.
(m) Without limiting the generality of Section 5.20,
Mortgagor agrees to defend, indemnify and save Mortgagee harmless
from and against any loss or liability, cost or expense
(including, without limitation, reasonable attorneys' fees,
consultants' fees, disbursements and court costs) arising out of,
or incurred in connection with, Mortgagor's misrepresentation, or
failure promptly (but in no event to exceed the time period
permitted by law) to comply with and perform its obligations,
under this Section 5.4. The provisions of this subsection (m)
shall survive any transfer of the Premises, including a transfer
after a foreclosure of this Mortgage.
Section 5.5. Warranty of Leasehold Estate and Title.
Mortgagor represents and warrants that as of the date
hereof:
(a) Mortgagor is duly authorized under the laws of the
State of New Jersey and all other applicable laws to execute and
deliver this Mortgage, and all partnership action on Mortgagor's
part necessary for the valid execution and delivery of this
Mortgage has been duly and effectively taken;
(b) Mortgagor is the lawful owner and is lawfully seized
and possessed of the Owned Land and all buildings and
improvements thereon, free and clear of all liens, charges or
encumbrances, other than the Mortgage Documents and the Existing
Encumbrances;
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(c) Mortgagor is the holder of and has good and marketable
title to the leasehold interests and leasehold estates under all
existing Facility Leases, subject to no lien, encumbrance or
charge other than the Mortgage Documents and the Existing
Encumbrances;
(d) (i) each existing Facility Lease is a valid and
subsisting demise of the respective Leased Land for the term
therein set forth, (ii) there are no defaults under any Facility
Lease by any lessor or the lessee as to which written notice has
been given to or by the lessee, (iii) Mortgagor has delivered to
Mortgagee and the Trustee a true and correct copy of each
existing Facility Lease, and all modifications, amendments and
supplements thereto, and (iv) each existing Facility Lease is in
full force and effect and has not been modified, amended or
supplemented, except as described on Schedule 3;
(e) Mortgagor has good title to the Operating Assets,
subject to no lien, encumbrance or charge, other than the
Mortgage Documents and the Existing Encumbrances;
(f) Mortgagor has good and lawful right and authority to
execute this Mortgage and to grant, bargain, sell, alien, convey,
assign, transfer, hypothecate, pledge, mortgage and confirm the
Trust Estate as provided herein (including, without limitation,
with respect to the Operating Assets and Facility Leases),
without the consent of any third party, other than governmental
authorities and certain Superior Mortgage holders and other
secured Persons but any applicable or necessary consent or
approval of any such governmental authority, Superior Mortgage
holders and other such Persons has been given or waived in
accordance with applicable law at or prior to the execution and
delivery of this Mortgage, and this Mortgage constitutes a valid
first mortgage lien and deed of trust and first priority security
interest in the Trust Estate, subject only to Existing
Encumbrances (including, without limitation, the Superior
Mortgages) and the Mortgage Documents; and
(g) (i) all amounts due under the Superior Mortgages and the
instruments secured thereby have been paid to the extent they
were due and payable to the date hereof, and (ii) there is no
existing default under said Superior Mortgages or instruments, or
in the performance of any of the terms, covenants, conditions or
warranties therein on the part of Mortgagor to be performed and
observed thereunder as to which written notice has been given to
Mortgagor.
Mortgagor hereby does and shall forever warrant and defend
(a) the title to the Trust Estate (including, without limitation,
Mortgagor's leasehold estate under, and the lessee's interests
in, each existing Facility Lease) (subject to Permitted
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Encumbrances) and (b) the priority of the lien of the Mortgage
Documents thereon (subject to Permitted Encumbrances other than
Restricted Encumbrances), against the claims and demands of all
persons whomsoever, at Mortgagor's sole cost and expense.
Section 5.6. After-Acquired Property;
Further Assurances; Recording.
All property, real, personal or mixed or any interest
therein (other than Excepted Property), of every kind and
description and wheresoever situate, which may be hereafter
acquired by Mortgagor (including, without limitation, fee title
to any Leased Land) shall immediately upon the acquisition
thereof by Mortgagor, and without any further mortgage,
conveyance or assignment, become subject to the lien of this
Mortgage as fully as though now owned by Mortgagor and covered by
the Granting Clauses. Nevertheless, Mortgagor shall do, execute,
acknowledge and deliver all and every such further acts,
conveyances, mortgages, financing statements and assurances as
Mortgagee shall require for accomplishing the express purposes of
this Mortgage.
Mortgagor shall, as provided in Section 5.12, from time to
time subject to the lien of this Mortgage its right, title and
interest under all Leases.
Mortgagor shall use reasonable efforts to insure that all
Operating Assets (other than Excepted Property) or any interest
therein hereafter acquired by Mortgagor shall be assignable to
Mortgagee, and to the extent such assignment to Mortgagee
requires the consent of any governmental authority or any other
Person, Mortgagor shall use reasonable efforts to obtain such
consent or a waiver thereof.
Mortgagor shall cause this instrument and all other
instruments of further assurance, including all financing
statements and continuation statements covering security
interests in personal property, to be promptly recorded,
registered and filed, and at all times to be kept recorded,
registered and filed, and shall execute and file such financing
statements and cause to be issued and filed such continuation
statements, all in such manner and in such places as may be
required by law or as requested by Mortgagee to fully preserve
and protect the rights of Mortgagee as a secured party under the
Uniform Commercial Code to all property comprising the Trust
Estate (to the extent a grant of a security interest therein is
governed by the Uniform Commercial Code) and to perfect, preserve
and protect the lien of this Mortgage as a valid direct first
mortgage lien of record and a valid first priority security
interest on the Trust Estate, subject only to Permitted
Encumbrances (including, without limitation, the Superior
Mortgages).
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Mortgagor shall pay all filing or recording fees, and all
expenses incident to the execution and delivery of this Mortgage,
any financing statement or continuation statement with respect to
the personal property constituting part of the Trust Estate, and
any instrument of further assurance, and all federal, state,
county and municipal stamp taxes and other taxes, duties,
imposts, assessments and charges arising out of or in connection
with the execution and delivery of the Guarantee, this Mortgage,
any financing statement or continuation statement with respect to
the personal property constituting part of the Trust Estate or
any instrument of further assurance.
Mortgagor shall furnish to Mortgagee promptly after the
acquisition hereafter by Mortgagor of any fee interest or
leasehold interest in real property having a fair market value
exceeding $500,000 (other than Excepted Property), (a) a
mortgagee policy of title insurance on the most recent form of
American Land Title Association standard loan policy, extended
coverage, which policy shall (i) contain all such endorsements
and affirmative insurance, to the extent reasonably applicable,
as is contained in the Original Policy and (ii) evidence that
title to such real property is subject to no liens or
encumbrances (other than Permitted Encumbrances) which would (A)
render title unmarketable or (B) violate any other provision of
this Mortgage or the Trust Indenture, (b) an as-built survey
meeting the "Minimum Standard Detail Requirements for ALTA/ACSM
Land Title Surveys", certified within 60 days prior to the
acquisition date by a surveyor licensed in the State of New
Jersey using the same form of certification as that contained in
the surveys of the Premises delivered to the Trustee on the date
of this Mortgage and (c) a Mortgagor's Certificate certifying
that the mortgagee policy of title insurance and survey delivered
pursuant to clauses (a) and (b) comply, respectively, with the
provisions of such clauses (a) and (b). Upon delivery of all of
the items required under this paragraph, any liens or
encumbrances on such real property shall constitute Permitted
Encumbrances hereunder.
Section 5.7. Payment of Taxes and Certain Claims;
Maintenance of Properties; Compliance with
Legal Requirements and Insurance Requirements.
Mortgagor shall:
(a) subject to the provisions of Section 5.8, pay or cause
to be paid before the date on which any fine, penalty, interest
or cost may be added for nonpayment (but no later than when the
same are payable by Mortgagor pursuant to any Superior Instrument
Requirement), all taxes (including, without limitation, real
estate taxes, personal or other property taxes and all sales,
value added, use and similar taxes), assessments (including,
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without limitation, all assessments for public improvements or
benefits, whether or not commenced or completed prior to the date
hereof and whether or not to be completed prior to the
satisfaction of this Mortgage), water, sewer or other rents,
rates and charges, excises, levies, license fees, permit fees,
inspection fees and other authorization fees and other charges,
in each case whether general or special, ordinary or
extraordinary, foreseen or unforeseen, of every character
(including, without limitation, all interest, additions to tax
and penalties thereon), that may be assessed, levied, confirmed
or imposed on or in respect of or be a lien upon (i) the Trust
Estate (including, without limitation, the Leased Land) or any
part thereof or any rent therefrom or any estate right or
interest therein, or (ii) any acquisition, occupancy, use,
leasing, or possession of or activity conducted on the real
property or any part thereof included in the Trust Estate or any
gross receipts thereof or of the rent therefrom (all of the
foregoing being referred to collectively as "Impositions").
Notwithstanding the foregoing or any other provision of this
Mortgage, Mortgagor shall not be required to pay any income,
profits or revenue tax upon the income of Mortgagee, the Trustee
or the Holders nor any franchise, excise, corporate, estate,
inheritance, succession, capital levy or transfer tax of
Mortgagee, the Trustee or the Holders nor any interest, additions
to tax or penalties in respect thereof, unless such tax is
imposed, levied or assessed in substitution for any Imposition
that Mortgagor is required to pay pursuant to this Section 5.7.
Mortgagor shall deliver to Mortgagee, at Mortgagee's request,
official receipts or other proof evidencing payments of any
Impositions in accordance with the requirements of this
Section 5.7. Mortgagor shall not be entitled to any credit for
taxes or assessments paid against the Mortgage Notes;
(b) except for such obsolete property as Mortgagor may
dispose of or replace pursuant to Section 2.2, maintain and keep
all of Mortgagor's properties used or useful in the conduct of
Mortgagor's business, including, without limitation, the Casino
Hotel and all Tangible Personal Property, in such good repair,
working order and condition, except for reasonable wear and use,
and make or cause to be made all such needful and proper repairs,
renewals and replacements thereto consistent with the standards
of first-class casino and hotel complexes in Atlantic City, New
Jersey;
(c) occupy and continuously operate the Casino Hotel and
keep the Casino Hotel supplied with Tangible Personal Property,
all in a manner consistent with the standards of first-class
casino and hotel complexes in Atlantic City, New Jersey;
(d) subject to the provisions of Section 5.8, (i) comply
with all Legal Requirements and Insurance Requirements, whether
or not compliance therewith shall require structural changes in
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the buildings and improvements included in the Trust Estate or
interfere with the use and enjoyment of the Trust Estate or any
part thereof, (ii) procure, maintain and comply with all Permits
required for (1) the use of the Casino as a gaming and gambling
facility, (2) the on-premises consumption of alcoholic beverages
at the Casino Hotel and (3) any other use of the Trust Estate or
any part thereof then being made, and for the proper erection,
installation, operation and maintenance of the improvements or
any part thereof, (iii) comply with all obligations of Mortgagor
under, and keep in full force and effect, all easements which in
any respect inure to the benefit of, or otherwise affect, the
Trust Estate or any part thereof, if the failure to comply with
the same would impair Mortgagee's security hereunder, and (iv)
without limiting the generality of clause (iii), comply with any
instruments of record at the time in force affecting the Trust
Estate or any part thereof, if the failure to comply with the
same would impair Mortgagee's security hereunder. Without
limiting the generality of the foregoing, Mortgagor represents
and warrants that at the time of the execution of this Mortgage,
Mortgagor is in compliance with the requirements of clauses (i),
(ii), (iii) and (iv) above; and
(e) in the event of the passage after the date of this
Mortgage of any law of the State of New Jersey, or any other
governmental entity, changing in any way the laws now in force
for the taxation of mortgages, or debts secured thereby, for
federal, state or local purposes, or the manner of the operation
of any such taxes, so as to affect the interest of Mortgagee, pay
the full amount of such new or additional taxes.
Section 5.8. Permitted Contests.
Notwithstanding anything in this Mortgage to the contrary,
Mortgagor, at Mortgagor's expense, may contest (after prior
notice to Mortgagee) by appropriate legal proceedings conducted
in good faith and with due diligence, the amount or validity or
application, in whole or in part, of any Imposition or lien
therefor or any Legal Requirement or Insurance Requirement or the
application of any instrument of record (including, without
limitation, any Superior Instrument Requirement) affecting the
Trust Estate or any part thereof or any claims of holders of
F,F&E Financing Agreements, mechanics, materialmen, suppliers, or
vendors or lien therefor, and may withhold payment of the same
pending such proceedings if permitted by law, or make payment
under protest, or defer compliance with any such Legal
Requirement, any such Insurance Requirement or the terms of any
such instrument, and the same shall not be a Default hereunder;
provided, that (a) in the case of any Impositions or lien
therefor or any claims of mechanics, materialmen, suppliers or
vendors or lien therefor, such proceedings shall suspend the
collection thereof from each of Mortgagor, Mortgagee, the
Trustee, the Holders and the Trust Estate, (b) neither the Trust
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Estate nor any interest therein would be in any significant
danger of being sold, forfeited, or lost, (c) such action will
not result in (i) the termination of any Facility Lease or (ii)
the holder of any Superior Mortgage having a right to exercise
any rights or remedies thereunder, (d) in the case of a Legal
Requirement, neither the Holders nor Mortgagee shall be in any
significant danger of any civil liability or any danger of any
criminal liability, and the failure of Mortgagor to comply with
such Legal Requirement shall not affect the continuance in good
standing of any Permit or result in the suspension, termination,
non-renewal or material adverse modification of any Permit, and
(e) in the case of an Insurance Requirement, the failure of
Mortgagor to comply therewith shall not affect the validity of
any insurance required to be maintained by Mortgagor hereunder.
Section 5.9. Mechanics' and Other Liens.
Mortgagor shall cause to be removed, either by payment, or
bonding or otherwise, all claims and demands of mechanics,
materialmen, laborers, and others which, if unpaid, might result
in, or permit the creation of, a lien on the Premises and/or
Trust Estate or any part thereof, or on the revenues, rents,
issues, income and profits arising therefrom and in general shall
do or cause to be done everything necessary so that the lien
hereof shall be fully preserved, at the cost of Mortgagor,
without expense to Mortgagee.
Section 5.10. To Insure.
(a) Mortgagor, at Mortgagor's expense, shall maintain with
Insurers:
(i) insurance with respect to Mortgagor's insurable
properties constituting a part of the Trust Estate against
loss or damage by fire, lightning, and other risks from time
to time included under "all-risk" policies and against loss
or damage by sprinkler leakage, water damage, collapse,
malicious mischief and explosion in respect of any steam and
pressure boilers and similar apparatus located on such
insurable properties, in amounts at all times sufficient to
prevent Mortgagor from becoming a coinsurer within the terms
of the applicable policies, but in any event such insurance
shall be maintained in not less than the greatest of the
following (the "Insurance Amount"): (A) 100% of the then
Full Insurable Value of such insurable properties,
determined from time to time (but not less frequently than
once in any 36 calendar months), by an Appraiser or Insurer,
(B) the then Outstanding Amount of Mortgage Debt, including
the Note, or (C) the amount required to be maintained
pursuant to the Superior Instrument Requirements;
(46)
<PAGE>
(ii) war risk insurance as and when such insurance is
obtainable from the United States of America or any agency
thereof as promptly as reasonably practicable after the same
becomes so obtainable, in an amount not less than the
Insurance Amount, or, if such insurance cannot be obtained
in an amount not less than the Insurance Amount, in such
lesser amount as may then be so obtainable;
(iii) comprehensive general liability insurance,
including, without limitation, blanket contractual liability
coverage, broad form property damage, independent
contractor's coverage and personal injury coverage against
any and all claims arising out of or connected with the
possession, use,, leasing, operation or condition of such
insurable properties, in an amount not less than
$100,000,000 combined single limit coverage for personal
injury and property damage with respect to any one
occurrence, which may be under an umbrella policy. Anything
contained in this clause (iii) to the contrary
notwithstanding, the Superior Instrument Requirements with
respect to the kinds and amount of insurance described in
this clause (iii) shall be satisfied by Mortgagor;
(iv) workers' compensation insurance to the extent
required by law;
(v) business interruption insurance covering not less
than 6 months of loss, provided that, at any time that
Mortgagor is renewing any policy for such insurance or
taking out any new or replacement policy for such insurance
covering a period of less than 12 months, Mortgagor shall
deliver to Mortgagee an Officers' Certificate certifying
that the period of coverage to be maintained by Mortgagor
under such policy is the maximum that can be maintained at
rates determined by Mortgagor to be reasonable for such
coverage;
(vi) to the extent available, flood insurance in an
amount not less than the Insurance Amount, or, if such
insurance cannot be obtained in an amount not less than the
Insurance Amount, such lesser amount as may then be so
obtainable but in no event less than $100,000,000; and
(vii) such other insurance with respect to such
insurable properties against loss or damage of the kinds (A)
from time to time customarily insured against by persons
owning or using first-class casino and hotel complexes in
Atlantic City, New Jersey and (B) required to be maintained
pursuant to any Superior Instrument Requirements.
Notwithstanding the foregoing, to the extent not violative
of any Superior Instrument Requirements, (A) Mortgagor may
(47)
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maintain a deductible with respect to the insurance policies
described in clauses (i), (ii), (vi) and (vii) in an amount not
to exceed $250,000, (B) Mortgagor may maintain a deductible with
respect to the insurance policies described in clause (iii) in an
amount not to exceed $500,000, and (C) Mortgagor may maintain a
deductible with respect to the insurance policies described in
clause (v) in an amount not to exceed $1,000,000.
(b) (i) Each policy of insurance maintained by Mortgagor
pursuant to Section 5.10(a) shall, (A) except in the case of
workers' compensation insurance, name Mortgagor as an insured and
shall name as additional insurers (1) Mortgagee and (2) to the
extent required by the Superior Instrument Requirements, the
lessors under any Facility Leases and the holders of the Superior
Mortgages, (B) provide that all insurance proceeds for losses,
except in the case of comprehensive general liability insurance
and workers' compensation insurance or as otherwise provided in
Subsections (d), (e) and (f) of this Section 5.10, be payable
solely to Mortgagee (or if such insurance proceeds are for losses
sustained solely to property covered by a Superior Mortgage, such
other party as is required to receive such proceeds under a
Superior Mortgage), (C) include effective waivers (whether under
the terms of any such policy or otherwise) by the insurer of all
claims for insurance premiums against all loss payees and named
insurers (other than Mortgagor) and all rights of subrogation
against any named insured, (D) except in the case of
comprehensive general liability and workers' compensation
insurance, provide that any losses shall be payable
notwithstanding (1) any act, failure to act, negligence of, or
violation or breach of warranties, declarations or conditions
contained in such policy by Mortgagor or Mortgagee or any other
named insured or loss payee (including, without limitation, (x)
the lessors under the Facility Leases with respect to any Leased
Facilities and (y) the holder of any Superior Mortgage with
respect to the property encumbered thereby), (2) the occupation
or use of the insurable properties for purposes more hazardous
than permitted by the terms of the policy, (3) any foreclosure or
other proceeding or notice of sale relating to the insurable
properties or (4) any change in the title to or ownership or
possession of the insurable properties, (E) contain a
non-contributory mortgagee clause in favor of Mortgagee, and (F)
provide that if all or any part of such policy is cancelled,
terminated or expires, the insurer will forthwith give notice
thereof to each named insured and loss payee and that no
cancellation, non-renewal, reduction in amount or material change
in coverage thereof shall be effective until at least 30 days
after receipt by each named insured and loss payee of written
notice thereof.
(ii) Mortgagor may effect the insurance required under this
Section 5.10 under blanket and/or umbrella policies covering
properties owned or leased by Affiliates of Mortgagor; provided,
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that (A) such policies otherwise comply with this mortgage, (B)
except with respect to flood insurance and earthquake insurance,
provide that the amount of coverage afforded thereunder with
respect to the Trust Estate shall not be reduced by claims
thereunder against such other properties and (C) in the case of
flood insurance provide that the amount of coverage afforded
thereunder with respect to the Trust Estate shall not be reduced
below $100,000,000 by reason of claims thereunder against such
other properties.
(c) Mortgagor shall deliver to Mortgagee duplicate
originals of all insurance policies that Mortgagor is required to
maintain pursuant to this Section 5.10. Mortgagee shall not be
responsible for effecting or renewing any insurance or for the
responsibility or solvency of the insurers.
(d) Mortgagor shall give written notice to Mortgagee
immediately upon obtaining knowledge of any Casualty which (i)
results in damage, loss or destruction in an amount in excess of
$5,000,000 to any buildings or improvements on the Premises
and/or any Tangible Personal Property or (ii) pursuant to any
Superior Instrument Requirement, would require the deposit of
insurance proceeds with the Depositary, or action or proceeding
with respect thereto. Whenever the Superior Instrument
Requirements require or permit the selection of the Depositary by
Mortgagor, Mortgagor shall select the Insurance Trustee as the
Depositary. Within 30 days after any Casualty which results in
any damage, loss or destruction in an amount in excess of
$10,000,000 to any buildings or improvements on the Premises
and/or any Tangible Personal Property, Mortgagor shall deliver to
Mortgagee a certificate of an Architect stating whether, in such
Architect's opinion, applicable Legal Requirements permit the
Restoration of said buildings and improvements for the same uses
and to the same size and quality in all material respects, as
existed immediately prior to the Casualty (and if said
certificate states that Legal Requirements do not permit such
Restoration, said certificate shall describe the manner closest
approximating such criteria to which the buildings and
improvements could be so restored and shall be accompanied by a
Certificate Of Appraised Value dated not more than 10 days prior
to delivery setting forth the Appraised Value immediately prior
to the Casualty and the estimated Appraised Value immediately
after the Restoration). If Mortgagor is required to deliver such
Certificates of Appraised Value and if based on such Certificates
of Appraised Value immediately after Restoration, (i) the
aggregate Outstanding Amount of Indebtedness of the Mortgagor
immediately after such Restoration shall exceed the greater of
(A) 80% of the Appraised Value immediately after such Restoration
or (B) the quotient of the Outstanding Amount of Indebtedness of
the Mortgagor immediately prior to such Casualty divided by the
Appraised Value immediately prior to the Casualty multiplied by
the Appraised Value immediately after such Restoration, or (ii)
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applicable Legal Requirements do not permit the Restoration of
the Casino Hotel for use as a casino and hotel complex, then, in
either of such events, the proceeds of any insurance shall not be
applied to Restoration but shall instead be paid and delivered to
Mortgagee to the extent of the then Outstanding Amount of the
Note and any other interest or other sums due hereunder or
thereunder to be applied to the satisfaction of this Mortgage to
the extent proceeds are available for such purpose and provided
that no additional sums are due to the Trustee or the Holders
under the Mortgage Notes or the Trust Indenture, the balance of
any net insurance proceeds shall be paid to Mortgagor.
(e) Subject to the provisions of Subsection 5.10(d), if a
Casualty occurs, the following shall apply:
(i) If the cost of Restoration is less than
$10,000,000, the net insurance proceeds shall be paid by
Mortgagee to Mortgagor (unless the Superior Instrument
Requirements provide that the same shall be paid to the
Depositary).
(ii) If the cost of Restoration is $10,000,000 or more
or if the Superior Instrument Requirements provide that the
same shall be paid to the Depositary, the net insurance
proceeds shall be paid by Mortgagee to the Insurance Trustee
(or other Depositary required by the Superior Instrument
Requirements, provided that such Depositary holds such
proceeds in trust for purposes of paying the costs of
Restoration).
(iii) Mortgagor shall commence with reasonable
promptness under the circumstances and thereafter with due
diligence proceed to perform and complete in a good and
workmanlike manner the restoration, repair, replacement or
rebuilding of the damage or destruction resulting from the
Casualty (all such restoration, repair, replacement and
rebuilding following a Casualty or a Taking are referred to
as "Restoration") in accordance with the plans and
specifications submitted to the Insurance Trustee, in
conformance with all Legal Requirements and Superior
Instrument Requirements, and in accordance with the further
provisions of this Subsection (e), regardless of the extent
of any such Casualty and whether or not net insurance
proceeds, if any, shall be available or, if available, shall
be sufficient, for the purpose of the Restoration. All
Restoration work shall be performed in accordance with the
applicable provisions of Section 5.12 and in conformance
with all Superior Instrument Requirements, Legal
Requirements and Insurance Requirements and, prior to
commencing any Restoration, Mortgagor shall obtain all
Permits necessary in connection therewith, and shall obtain,
and keep in full force and effect until the completion of
(50)
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such Restoration, such additional insurance as the Insurance
Trustee and Superior Instrument Requirements may require.
The plans and specifications for the Restoration shall be
accompanied by a Mortgagor's Certificate and an Opinion of
Counsel to the effect that upon the completion of the
Restoration pursuant to the plans and specifications, the
Premises and all buildings and improvements thereon will
comply with all Superior Instrument Requirements, Legal
Requirements and Insurance Requirements.
(iv) Any insurance proceeds which Mortgagor receives
shall be held by Mortgagor in trust for the purpose of
paying the cost of the Restoration, except as otherwise
provided herein.
(v) Any net insurance proceeds that the Insurance
Trustee holds pursuant to this Subsection (e), shall be
deposited in an interest-bearing investment reasonably
designated by Mortgagor (to the extent Mortgagor is
permitted to designate such investment under the Superior
Instrument Requirements) (and the interest thereon shall be
added to such proceeds) and shall be paid by the Insurance
Trustee to reimburse Mortgagor for, or to make payment for,
the Restoration, after the Insurance Trustee deducts
therefrom the amount of any reasonable costs and expenses
incurred in connection with the performance of its
obligations under this Section 5.10. The Insurance Trustee
shall make such payments not more frequently than once every
30 days upon the written request of Mortgagor (unless more
frequent payments are required by Superior Instrument
Requirements), by paying to Mortgagor or the persons named
in the certificate described in clause (vi) of this
Subsection (e) the respective amounts stated in such
certificate from time to time as the Restoration progresses,
provided Mortgagor has complied with the requirements of
this Subsection (e) and such payment is permitted by any
applicable Superior Instrument Requirements. Mortgagor's
request shall be accompanied by (A) the certificate
described in clause (vi) of this Subsection (e) and (B) a
title company or official search, or other evidence
reasonably acceptable to the Insurance Trustee, showing that
there have not been filed with respect to the Premises, any
vendor's, contractor's, mechanic's, laborer's or
materialman's statutory or similar lien which has not been
discharged of record (or bonded against or secured by other
security) or any other encumbrance irrespective of its
priority (other than Permitted Encumbrances).
(vi) The certificate required by clause (v) of this
Subsection (e) shall (A) be a Mortgagor's Certificate,
countersigned by the Architect in charge of the Restoration
with respect to the matters described in (1) and (5) below,
(51)
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(B) be dated not more than 10 days prior to such request and
(C) set forth (in addition to any other requirements
contained in any applicable Superior Instrument
Requirements) that:
(1) all of the Restoration theretofore performed
is in substantial compliance with the plans and
specifications theretofore submitted to the Insurance
Trustee and in compliance with all Superior Instrument
Requirements, Legal Requirements and Insurance
Requirements;
(2) the sum then requested either has been paid
by Mortgagor or is justly due to contractors,
subcontractors, materialmen, engineers, architects or
other persons who have rendered services or furnished
or contracted to deliver materials for the Restoration
therein specified, and the names and addresses of such
persons, a brief description of such services and
materials and the several amounts so paid or due to
each of said persons in respect thereof;
(3) no part of the amount requested has been or
is the basis in any previous or then pending request
for the withdrawal of net insurance proceeds, and that
the sum then requested does not exceed the value of the
services and materials described in the certificate;
(4) except for the amount, if any, stated
pursuant to subclause (2) of this clause (vi) in such
certificate to be due for services or materials, and
except for amounts in dispute and/or customary
retainages, there is no outstanding indebtedness known
to the person signing such certificate, after due
inquiry, which is then due for labor, wages, materials,
supplies or services in connection with such
Restoration; and
(5) the remaining cost, as estimated by the
persons signing such certificate, of the Restoration in
order to complete the same does not exceed the net
insurance proceeds remaining in the hands of Insurance
Trustee after payment of the sum requested in such
certificate or if such estimated cost does exceed such
insurance proceeds such certificate shall state the
amount of any such deficiency. If the certificate
states that such deficiency will exist, Mortgagor shall
deliver the amount of such deficiency in cash or cash
equivalent to the Insurance Trustee simultaneously with
the delivery of such certificate, which amount shall be
deemed insurance proceeds for purposes of this Section
5.10(e).
(52)
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(vii) If net insurance proceeds shall be insufficient
to pay the entire cost of the Restoration, then, after
completion of the Restoration, Mortgagor shall pay the
deficiency. If all or any part of the net insurance
proceeds are not used for the Restoration in accordance with
this Subsection (e) (because such proceeds exceed the amount
required to complete the Restoration), then upon completion
of the Restoration in accordance with this Subsection (e),
such amount not so used, if held by the Insurance Trustee,
shall be paid to Mortgagor (if permitted by Superior
Instrument Requirements).
(f) Mortgagor shall not take out separate insurance,
concurrent in form or contributing in the event of loss with that
required to be maintained pursuant to this Section 5.10, unless
the same is permitted by Superior Instrument Requirements.
Mortgagor shall immediately notify Mortgagee whenever any such
separate insurance is taken out and shall promptly deliver to
Mortgagee a duplicate original of the policy of such insurance, a
copy thereof certified by the insurer or a certificate thereof.
Provided that no Event of Default has occurred and is continuing,
all net business interruption insurance proceeds shall be paid to
Mortgagor, to be segregated from the other funds of Mortgagor and
held in trust by Mortgagor for the following purposes and in the
following order of priority: (i) for the payment of Impositions
and amounts due under the Facility Leases and Superior Mortgages,
(ii) for debt service for the estimated period of Restoration
(for purposes of this Subsection 5.10(f), interest and principal
payments due on any payment date under the Note will be deemed to
accrue in equal daily installments beginning the day after the
immediately preceding payment date and ending on such payment
date), and (iii) for any other expense incurred in connection
with the operation or business of the Casino Hotel.
(g) Insurance claims by reason of damage or destruction to
any portion of the Trust Estate may be adjusted by Mortgagor, but
Mortgagee shall have the right (but not the obligation) to join
Mortgagor in adjusting, and approving the adjustment of, any such
loss except in the event of a loss where the amount of insurance
reasonably anticipated to be received with respect to such loss
is less than $5,000,000, and Mortgagor shall assist Mortgagee in
any such adjustment at the request of Mortgagee. If Mortgagee at
its election as aforesaid joins Mortgagor in any adjustment
process, then Mortgagee's approval of the adjustment shall not be
unreasonably withheld.
(h) Notwithstanding anything contained herein to the
contrary, if an Event of Default shall have occurred and be
continuing, Mortgagee may, at its option, (A) refrain from paying
to Mortgagor or the Insurance Trustee any net insurance proceeds
or (B) instruct the Insurance Trustee to pay to Mortgagee any
(53)
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insurance proceeds then held by the Insurance Trustee, as the
case may be.
Section 5.11. Limitations on Building Demolition,
Alterations, Improvements and New Construction.
Mortgagor shall not authorize, permit or make any
demolition, alteration or improvement of any building, structure
or other improvements included in the Trust Estate or any new
construction on any part of the Trust Estate, except in
conformity with and subject to the limitations hereinafter in
this Section 5.11 set forth and set forth in the Trust Indenture.
Unless an Event of Default shall have occurred and be
continuing, Mortgagor shall have the right at all times to make
or permit such demolition, alterations, improvements or new
construction, structural or otherwise (herein sometimes called
collectively "Alterations" and each, individually, an
"Alteration"), of the Trust Estate, to be made in all cases
subject to each of the following conditions:
(a) No Alteration shall be undertaken or carried out except
in conformity with all Superior Instrument Requirements, Legal
Requirements and Insurance Requirements.
(b) If the estimated cost of any Alteration, together with
other Alterations that constitute a single construction plan or
project (whether or not accomplished in several stages or
procedures), exceeds $5,000,000, the building or buildings,
structures or other improvements as so improved or altered, upon
the completion of the work, shall be of a value not less than the
value of such building or buildings, structures or other
improvements immediately prior to the making of such Alteration.
(c) Any Alteration which is structural in nature or
involves an estimated cost of more than $5,000,000 shall be
conducted under the supervision of an Architect, and no such
Alteration shall be undertaken until 10 days after there shall
have been filed with Mortgagee detailed plans and specifications
and cost estimates therefor, prepared and approved in writing by
such Architect and accompanied by a certificate of such Architect
stating that such plans and specifications conform to all
applicable provisions of this Section 5.11.
(d) No Alteration involving an estimated cost of more than
$5,000,000 shall be undertaken until Mortgagor has furnished to
Mortgagee, at Mortgagor's sole cost and expense, a surety bond or
bonds, covering performance, and labor and material payments with
respect to the work to be so performed, naming Mortgagee as
obligee, issued by a responsible surety company, authorized to do
business in the State of New Jersey, in a form generally and
customarily used by such surety in an amount equal to the
(54)
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estimated cost of construction of the work covered by the plans
and specifications therefor, guaranteeing the performance and
completion of such construction, substantially in conformity with
the said plans and specifications and within a reasonable time,
subject to delays by fire, strikes, lock-out, acts of God,
inability to obtain labor or materials, governmental
restrictions, enemy action, civil commotion or unavoidable
Casualty or other similar causes beyond the control of Mortgagor,
free and clear of all liens, claims and liabilities for the cost
of such Alterations. If such surety bond or bonds shall be
unobtainable Mortgagor shall deliver to Mortgagee security by
cash, letter of credit or other guarantee, affording
substantially the same protection as would such bond or bonds.
(e) All work done in connection with any Alterations shall
be done promptly and in good and workmanlike manner. The work in
connection with any Alteration shall be prosecuted with
reasonable dispatch, delays due to fire, strikes, lock-outs, acts
of God, inability to obtain labor or materials, governmental
restrictions, enemy action, civil commotion or unavoidable
Casualty or similar causes beyond the control of Mortgagor
excepted.
(f) If the estimated cost of Alterations exceeds
$5,000,000, Mortgagor shall have delivered to Mortgagee (i) prior
to the commencement of such Alterations, copies of all Permits
required for the commencement of such work together with a
certificate of the Architect or an Opinion of Counsel to the
effect that all Permits required for the commencement of such
Alterations have been obtained; and (ii) within a reasonable
period of time after the completion of the Alterations, copies of
all Permits required in connection with the completion thereof,
together with either an Opinion of Counsel or a certificate of
the Architect that all such Permits have been so obtained by
Mortgagor and that Mortgagor has complied with all the
requirements of this Section 5.11.
(g) No Alterations of any kind shall be made which shall
change the use or reduce the size or quality of any building,
structure or other improvements in any material respect or which
shall change the use of the Casino Hotel from its use as a gaming
and hotel facility.
(h) No Alterations costing in excess of $5,000,000,
together with other Alterations that constitute a single
construction plan or project (whether or not accomplished in
several stages or procedures), shall be made if such Alterations
are not expected to be completed at least 120 days prior to the
Stated Maturity of the Note (except if such Alterations are
required in order to comply with Legal Requirements or Superior
Instrument Requirements).
(55)
<PAGE>
(i) Mortgagor shall maintain at all times during the
performance of Alterations, in addition to any insurance required
to be maintained under Section 5.11 hereof, appropriate workers'
compensation insurance covering all persons employed for such
Alterations to the extent required by applicable law, and
comprehensive general liability insurance expressly covering the
additional hazards due to such Alterations. Each such policy of
insurance shall comply with the provisions of Section 5.10(b),
and Mortgagor shall comply with Subsections (c), (d), (e), (f),
(g) and (h) of Section 5.10 in connection with all such
insurance.
Section 5.12. Leases.
Mortgagor shall not:
(a) lease the Trust Estate substantially as an entirety to
any Person (except in accordance with the provisions of Article
Eight of the Trust Indenture), nor shall Mortgagor lease either
the Casino Hotel or the Casino or the Hotel or any parking
facilities substantially as an entirety to any Person;
(b) enter into any Lease, or renew, modify, extend,
terminate, or amend any Lease, except in the ordinary course of
business of operating the Casino Hotel;
(c) receive or collect, or permit the receipt or collection
of, any rental payments under any Lease more than one month in
advance of the respective periods in respect of which they are to
accrue, except that, in connection with the execution and
delivery of any Lease or of any amendment to any Lease, rental
payments thereunder may be collected and received in advance in
an amount not in excess of three months' rent and/or a security
deposit may be required thereunder in an amount not exceeding one
year's rent;
(d) collaterally assign, transfer or hypothecate (other
than to Mortgagee hereunder, to the holder of the Note Mortgage
or to the holder of any Superior Mortgage, but in each case only
with respect to the property secured by such mortgage) (i) any
rental payment under any Lease whether then due or to accrue in
the future, (ii) the interest of Mortgagor as landlord under any
Lease or (iii) the rents, issues or profits of the Trust Estate;
(e) after the date hereof, enter into any Lease, or renew
any Lease, unless such Lease contains terms to the effect as
follows:
(i) the Lease and the rights of the tenants thereunder
shall be subject and subordinate to the rights of Mortgagee
under this Mortgage and the holders of any Superior
Mortgage,
(56)
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(ii) the Lease may be assigned by the landlord
thereunder to Mortgagee, and
(iii) the rights and remedies of the tenant in respect
of any obligations of the landlord thereunder shall be
nonrecourse as to any assets of the landlord other than its
equity in the building in which the leased premises are
located or the proceeds thereof; or
(f) modify any Lease with respect to the matters described
in clauses (i) through (iii) of paragraph (e).
If Mortgagor enters into a Lease (other than with an
Affiliate of Mortgagor) for a term of not less than 3 years,
Mortgagee shall deliver a non-disturbance and attornment
agreement substantially in the form of Schedule 7 hereto,
following receipt of a certificate of a leasing broker (who is
not an Affiliate of Mortgagor or the broker involved in such
transaction) experienced with respect to leases of commercial
space in the Atlantic City area stating that the rent under the
Lease throughout the term thereof is not less than fair market
rent and the other terms of the Lease are fair and reasonable in
the commercial leasing market. Mortgagor shall, upon demand,
reimburse Mortgagee for any costs and expenses (including
reasonable attorneys' fees and disbursements) incurred by
Mortgagee in connection with the preparation, review and delivery
of such non-disturbance and attornment agreements.
Promptly after the execution and delivery hereof, Mortgagor
shall cause the lessee under each Lease now in effect, and
promptly after each Lease is executed or becomes effective after
the date of the execution and delivery hereof, Mortgagor shall
cause the lessee under each such Lease, to be duly notified in
writing (unless the substance and effect of such notice shall be
contained in such Lease) of the subjection of the owner's
interest, as lessor, in and to such Lease to the lien of this
Mortgage and of the name and address of Mortgagee. Each such
notice shall state that the lease of such lessee is a Lease as
herein defined. If a new Mortgagee is at any time appointed
hereunder or the address of Mortgagee shall at any time be
changed, Mortgagor shall cause each lessee under each Lease to be
promptly notified in writing of the name and address of such new
Mortgagee or the new address of Mortgagee. Mortgagor shall use
reasonable efforts (but shall not be obligated to incur any
expenditure other than de minimis amounts) to obtain from each
lessee under each Lease to whom any notice is sent pursuant to
this paragraph an acknowledgment of receipt of such notice, and
Mortgagor shall promptly deliver to Mortgagee,, upon request, a
copy of each such acknowledgment of receipt which it is able to
obtain. Mortgagee shall not be responsible for securing or
causing Mortgagor to secure any such acknowledgment.
(57)
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Section 5.13. Compliance Certificates.
Mortgagor shall deliver to Mortgagee, within 120 days after
the end of each fiscal year of Mortgagor, an Mortgagor's
Certificate stating that
(a) a review of the activities of Mortgagor during such
year and of performance under this Mortgage has been made under
the signer's supervision, and
(b) to the best of each signer's knowledge, based on such
review, Mortgagor has fulfilled all of Mortgagor's obligations
under this Mortgage throughout such year, or, if there has been a
default in the fulfillment of any such obligation, specifying
each such default known to him and the nature and status thereof.
Promptly after Mortgagor may reasonably be deemed to have
knowledge of a default hereunder, Mortgagor shall deliver to
Mortgagee a notice specifying the nature and period of existence
thereof and the action Mortgagor is taking and proposes to take
with respect thereto.
Section 5.14. To Keep Books; Inspection by Mortgagee.
Mortgagor will keep proper books of record and account, in
which full and correct entries shall be made of all dealings or
transactions of or in relation to the properties, business and
affairs of Mortgagor in accordance with generally accepted
accounting principles consistently applied. Said books shall be
maintained in an office located either in Atlantic City, New
Jersey or in the Borough of Manhattan, City of New York, State of
New York. Mortgagor shall at any and all times, upon request of
Mortgagee and at the expense of Mortgagor, permit Mortgagee and
its representatives to inspect the Casino Hotel and any other
buildings, structures and improvements now or hereafter located
on the Land and the books of account, records, reports and other
papers of Mortgagor, and to make copies and extracts therefrom,
and will afford and procure a reasonable opportunity to make any
such inspection (provided, that any such inspection shall not
unreasonably interfere with the business operations of
Mortgagor), and Mortgagor will furnish to Mortgagee any and all
information as Mortgagee may reasonably request, with respect to
the performance by Mortgagor of its covenants in this Mortgage.
Section 5.15. Advances by Mortgagee.
If Mortgagor shall fail to perform any of the covenants,
terms, provisions or conditions contained in this Mortgage and
such failure shall continue for 10 days following notice thereof
given by Mortgagee (or at any time, without notice, in case of
emergency), Mortgagee may (but is not obligated to), at any time
(58)
<PAGE>
and from time to time, take any action or make advances, to
effect performance of any such covenant, term, provision or
condition on behalf of Mortgagor; and all moneys so used, paid or
advanced by Mortgagee and all reasonable costs and expenses
incurred by Mortgagee in connection therewith, together with
interest on all of the same at the rate of interest set forth in
the Note, shall be immediately due and payable by Mortgagor to
Mortgagee and all such moneys, costs and expenses shall be
secured by the lien of this Mortgage prior to the Note. No such
advance or payment by Mortgagee shall relieve Mortgagor from any
default hereunder or impair any right or remedy of Mortgagee.
Section 5.16. Waiver of Stay, Extension or Usury Laws.
Mortgagor covenants (to the extent that it may lawfully do
so) that it will not at any time insist upon, or plead, or in any
manner whatsoever claim or take the benefit or advantage of, any
usury, stay or extension law or any other law which would
prohibit or forgive Mortgagor from paying all or any portion of
the obligations secured by this Mortgage, wherever enacted, now
or at any time hereafter in force, or which may otherwise affect
the covenants or the performance of this Mortgage; and Mortgagor
(to the extent that it may lawfully do so) hereby expressly
waives all benefit or advantage of any such law, and covenants
that it shall not hinder, delay or impede the execution of any
power herein granted to Mortgagee, but shall suffer and permit
the execution of every such power as though no such law had been
enacted.
Section 5.17. Eminent Domain.
(a) Mortgagor shall notify Mortgagee immediately upon
obtaining knowledge of any Taking affecting the Trust Estate or
any part thereof. If the Taking is a Taking of less than the
whole or substantially all of the Premises but (i) is estimated
to result in an award of more than $10,000,000 or (ii) the Taking
will interfere with or adversely affect the operation of the
Casino Hotel (other than any portion thereof consisting solely of
unimproved, paved or unpaved surface parking) other than to a de
minimis extent, then within 30 days after such Taking, Mortgagor
shall deliver to Mortgagee a certificate of an Architect stating
whether, in such Architect's opinion, applicable Legal
Requirements permit the Restoration of any buildings and
improvements for the same uses and to the same size and quality
in all material respects as existed immediately prior to the
Taking (and if said certificate states that Legal Requirements do
not permit such Restoration, said certificate shall describe the
manner closest approximating such criteria to which the buildings
and improvements could be so restored and shall be accompanied by
a Certificate of Appraised Value dated not more than 10 days
prior to delivery setting forth the Appraised Value immediately
prior to the Taking and the estimated Appraised Value immediately
(59)
<PAGE>
after the permitted Restoration). If Mortgagor is required to
deliver such Certificate of Appraised value and if based on such
Certificate of Appraised Value immediately after Restoration, (i)
the Outstanding Amount of Indebtedness of the Partnership
immediately after such Restoration shall exceed the greater of
(A) 80% of the Appraised Value immediately after such Restoration
or (B) the quotient of the Outstanding Amount of Indebtedness of
the Partnership immediately prior to such Taking divided by the
Appraised Value immediately prior to the Taking multiplied by the
Appraised Value immediately after such Restoration, or (ii)
applicable Legal Requirements do not permit the Restoration of
the Casino Hotel for use as a casino and hotel complex, then, in
any of such events, the Taking shall be deemed a Taking of "the
whole or substantially all of the Premises." The Taking shall be
deemed a Taking of "less than the whole or substantially all of
the Premises" if Mortgagor is not required to deliver a
Certificate Of Appraised Value or if, at the time of delivery of
such Certificate, neither of the tests set forth in clauses (i)
and (ii) is met.
(b) If at any time there shall occur a Taking of less than
the whole or substantially all of the Premises and the award or
awards resulting therefrom payable to Mortgagor (and not to any
lessor under any Facility Lease or the holder of any Superior
Mortgage) (after there shall have been first deducted the fees
and expenses incurred in connection with the termination,
settlement and collection of such award or awards, including,
without limitation, reasonable counsel fees and expenses,
hereinafter referred to as "Settlement Costs") (i) shall be less
than $10,000,000 (except to the extent that the Insurance Trustee
or a Depositary is required to hold such amount pursuant to a
Superior Instrument Requirement), the entire amount of such award
shall be paid to Mortgagor; and (ii) if such award is $10,000,000
or more, the entire amount of such award shall be paid to the
Insurance Trustee (or other Depositary required by a Superior
Mortgage, provided that such Depositary holds such award in trust
for purposes of paying the cost of Restoration). In either
event, such awards shall be applied to the cost of Restoration of
the Trust Estate as nearly as practicable to their uses, value
and condition immediately prior to the Taking (except to the
extent otherwise provided by Superior Instrument Requirements).
Mortgagor shall promptly commence and with due diligence perform
the Restoration in accordance with clauses (iii), (iv) and (vii)
of Subsection 5.10(e) (after substituting the words "Taking" for
"Casualty" and "award" for "net insurance proceeds"), at no cost
to Mortgagee. All claims or suits arising out of any Taking may
be settled by Mortgagor, except that Mortgagee shall have the
right (but not the obligation) to participate in such claim or
suit, and to approve settlement thereof (and notwithstanding
anything in the Facility Leases to the contrary, Mortgagor shall
not agree to any settlement or compromise of the amount of any
such claim or suit, except a claim or suit where the amount
(60)
<PAGE>
reasonably anticipated to be received by Mortgagor is less than
$5,000,000). If Mortgagee at its election as aforesaid joins
such claim or suit, Mortgagee's approval of such settlement shall
not be unreasonably withheld. The Insurance Trustee shall
promptly pay such sums as are received by it from such Taking
from time to time in accordance with the procedures set forth in
clauses (v) and (vi) of Subsection 5.10(e) (after substituting
the words "Taking" for "Casualty" and "award" for "net insurance
proceeds").
(c) If at any time there shall occur a Taking of the whole
or substantially all of the Premises, then the award payable to
Mortgagor shall not be applied to Restoration but shall instead
be paid and delivered to the Trustee (subject to the rights of
the lessors under any Facility Leases and the holders of any
Superior Mortgages) to the extent of the then Outstanding Amount
of the Note and any other interest or other sums due hereunder or
thereunder to be applied to the satisfaction of this Mortgage to
the extent proceeds are available for such purpose and provided
that no additional sums are due the Trustee or the Holders under
the Mortgage Notes or the Trust Indenture, the balance of any
award shall be paid to Mortgagor.
(d) Notwithstanding anything contained herein to the
contrary, if an Event of Default shall have occurred and is
continuing, Mortgagee may, at its option, (i) refrain from paying
to Mortgagor or the Insurance Trustee any award or (ii) instruct
the Insurance Trustee to pay to Mortgagee any award then held by
the Insurance Trustee, as the case may be.
Section 5.18. Facility Leases.
(a) Mortgagor shall do or cause to be done all things
necessary to preserve and keep unimpaired the rights of
Mortgagor, as lessee under all Facility Leases, and, to prevent
any termination, surrender, cancellation, forfeiture or
impairment of any thereof. Mortgagor shall at all times fully
perform and comply with all agreements, covenants, terms and
conditions imposed upon or assumed by it as lessee under each of
the Facility Leases (including, without limitation, the covenant
to pay rent and all taxes, assessments and other charges
mentioned therein) prior to the expiration of any notice and/or
cure period provided in each such Facility Lease. Upon receipt
by Mortgagee from a Lessor of any written notice of default by
the lessee thereunder, Mortgagee may rely thereon and take any
action Mortgagee deems necessary in its sole discretion to
prevent or to cure any default by Mortgagor in the performance of
or compliance with any of the agreements, covenants, terms or
conditions imposed upon or assumed by Mortgagor as lessee under
such Facility Lease, even though the existence of such default or
the nature thereof be questioned or denied by Mortgagor or by any
party on behalf of Mortgagor. Without limiting the generality of
(61)
<PAGE>
Section 3.9, Mortgagor hereby expressly grants to Mortgagee, and
agrees that Mortgagee shall have, the absolute and immediate
right to enter in and upon the Premises or any part thereof to
such extent and as often as Mortgagee, in its sole discretion,
deems necessary or desirable for the purpose permitted by the
immediately preceding sentence, subject only to applicable Legal
Requirements. Without limiting Mortgagor's obligations or
Mortgagee's rights set forth above or limiting Mortgagee's other
remedies under this Mortgage, Mortgagee may pay and expend such
sums of money as Mortgagee in its sole discretion deems necessary
for any such purpose, and Mortgagor hereby agrees to pay to
Mortgagee immediately and without demand, all such sums referred
to above, so paid and expended by Mortgagee, together with
interest thereon from the date of each such payment at the
highest rate of interest set forth in the Note. All sums so paid
and expended by Mortgagee, and the interest thereon, shall be
added to and be secured by the lien of this Mortgage.
(b) Mortgagor further covenants and agrees as follows:
(i) Mortgagor shall not surrender, terminate or cancel
any Facility Lease, and shall not without the consent of
Mortgagee modify, change, supplement, alter or amend any
Facility Lease either orally or in writing if an impairment
of the security granted under this Mortgage would result
therefrom. As further security for the repayment of the
indebtedness secured hereby and for the performance of the
covenants herein and in each Facility Lease contained,
Mortgagor hereby assigns to Mortgagee all of Mortgagor's
rights, privileges and prerogatives as lessee under each
Facility Lease to terminate, cancel, modify, change,
supplement, alter or amend such Facility Lease and any such
termination, cancellation, modification, change, supplement,
alteration or amendment of a Facility Lease without the
prior consent thereto by Mortgagee shall be void and of no
force and effect. Unless (1) an Event of Default has
occurred and is continuing and (2) either (A) there has been
an acceleration of maturity of the Note pursuant to Section
3.2 or (B) Mortgagee exercises its rights under Section 3.9,
Mortgagee shall have no right to terminate, cancel, modify,
change, supplement, alter or amend any Facility Lease.
(ii) Solely for the benefit of Mortgagee, Trustee, the
Holders and no other person, no release or forbearance of
any of Mortgagor's obligations under any Facility Lease,
pursuant to such Facility Lease or otherwise, shall release
Mortgagor from any of Mortgagor's other obligations under
this Mortgage.
(iii) Unless Mortgagee shall otherwise expressly
consent in writing, the fee title to the Leased Facilities
and Mortgagor's leasehold estates therein shall not merge
(62)
<PAGE>
and shall always remain separate and distinct,
notwithstanding the union of said estates either in the
Lessor or in the lessee, or in a third party by purchase or
otherwise
(iv) Mortgagor shall promptly notify Mortgagee in
writing of any request made by Mortgagor, as lessee under
any Facility Lease, or any of the Lessors, for arbitration
proceedings under any Facility Lease and of the institution
of any arbitration proceedings, as well as all proceedings
thereunder. Mortgagor shall promptly deliver to Mortgagee a
copy of the determination of the arbitrators in each such
arbitration proceeding. Mortgagee shall have the right to
participate in such arbitration proceedings in association
with Mortgagor or on its own behalf as an interested party.
(v) Mortgagor shall not consent to the subordination
of any Facility Lease to any mortgage, deed of trust or
other lien on the fee interest of the Lessor.
(vi) If Mortgagor acquires fee simple title or any
other estate, title or interest in any Leased Facility,
Mortgagor shall promptly notify Mortgagee of such
acquisition and, on request by Mortgagee, shall cause to be
executed and recorded all such other and further assurances
or other instruments in writing as may in the opinion of
Mortgagee be required or desirable to carry out the intent
and meaning of clause (x) of Granting Clause Third.
(vii) Within 5 days after Mortgagor's receipt of any
notice of any motion, application or effort to reject any
Facility Lease by any Lessor or any trustee arising from or
in connection with any case, proceeding or other action
commenced or pending by or against any Lessor under the Code
or any comparable provision contained in any present or
future federal, state, local, foreign or other statute, law,
rule or regulation ("Comparable Provision"), Mortgagor shall
give notice thereof to Mortgagee. Mortgagor hereby (A)
assigns to Mortgagee any and all of Mortgagor's rights as
lessee under Section 365(h) of the Code or any Comparable
Provision and (B) covenants that it shall not elect to treat
any Facility Lease as terminated pursuant to Section 365(h)
of the Code or any Comparable Provision without the prior
consent of Mortgagee and (C) agrees that any such election
by Mortgagor without such consent shall be null and void.
(viii) Without limiting the generality of the
foregoing, to the extent permitted by applicable law,
Mortgagor hereby unconditionally assigns, transfers and sets
over to Mortgagee all of Mortgagor's claims and rights to
the payment of damages arising from any rejection by Lessor
of any Facility Lease under the Code or any Comparable
(63)
<PAGE>
Provision. Mortgagee shall have the right to proceed in its
own name or in the name of Mortgagor in respect of any
claim, suit, action or proceeding relating to the rejection
of any Facility Lease, including, without limitation, the
right to file and prosecute, in cooperation with Mortgagor,
any proofs of claim, complaints, motions, applications,
notices and other documents, in any case in respect of
Lessor under the Code or any Comparable Provision. This
assignment constitutes a present, irrevocable and
unconditional assignment of the foregoing claims, rights and
remedies, and shall continue in effect until all of the
indebtedness and obligations secured by this Mortgage shall
have been satisfied and discharged in full. Any amounts
received by Mortgagee in damages arising out of the
rejection of any Facility Lease as aforesaid shall be
applied first to all reasonable costs and expenses of
Mortgagee (including, without limitation, reasonable
attorneys' fees, disbursements and court costs) incurred in
connection with the exercise of any of its rights or
remedies under this Section 5.18, and thereafter as provided
in Section 3.3.
(ix) If there shall be filed by or against Mortgagor a
petition under the Code or any Comparable Provision and
Mortgagor, as lessee under any Facility Lease, shall
determine to reject such Facility Lease, Mortgagor shall
give Mortgagee not less than 10 days' prior notice of the
date on which Mortgagor shall apply to the Bankruptcy Court
or other judicial body with appropriate jurisdiction for
authority to reject such Facility Lease. Mortgagee shall
have the right, but not the obligation, to serve upon
Mortgagor within such 10-day period a notice stating that
(a) Mortgagee demands that Mortgagor assume and assign such
Facility Lease to Mortgagee pursuant to Section 365 of the
Code or any Comparable Provision and (b) Mortgagee covenants
to cure or provide adequate assurance of prompt cure of all
defaults and provide adequate assurance of future
performance under such Facility Lease. If Mortgagee serves
upon Mortgagor the notice described in the preceding
sentence, Mortgagor shall not seek to reject such Facility
Lease and shall comply with the demand provided for in
clause (a) of the preceding sentence within 30 days after
the notice shall have been given subject to the performance
by Mortgagee of the covenant provided for in clause (b) of
the preceding sentence. The foregoing provisions of this
Section 5.18(ix) shall not apply to the extent not permitted
by applicable law. Effective upon the entry of an order for
relief in respect of Mortgagor under Chapter 7 of the Code
or any Comparable Provision, Mortgagor hereby assigns and
transfers to Mortgagee a non-exclusive right to apply to the
Bankruptcy Court or other judicial body with appropriate
(64)
<PAGE>
jurisdiction for an order extending the period during which
such Facility Lease may be rejected or assumed.
(x) Mortgagor shall promptly give to Mortgagee copies
of (A) all notices of default and (B) any other
communications or notices with respect to events that relate
to the possible impairment of the security of this Mortgage,
which Mortgagor shall give or receive under any Facility
Lease and shall promptly notify Mortgagee of any default
under any Facility Lease on the part of the Lessor or
Mortgagor.
(xi) Mortgagor shall enforce with due diligence all of
the obligations of the Lessor under each Facility Lease, to
the end that Mortgagor may enjoy all of the rights and
privileges granted to it under the Facility Leases.
(xii) Mortgagor shall notify Mortgagee within 5 days
after the transfer of a fee interest in any Leased Facility
or any portion thereof to or from an Affiliate.
(xiii) No Affiliate of Mortgagor shall at any time
hereafter acquire fee title to the Leased Land or any
portion thereof unless simultaneously with such acquisition
such Affiliate and Mortgagor execute and exchange (and
deliver to the Trustee an executed counterpart of) an
instrument in form and substance satisfactory to Mortgagee
providing that so long as such Affiliate owns such fee title
(A) such Affiliate shall not terminate the applicable
Facility Lease for any reason whatsoever (including, without
limitation, due to the default of Mortgagor under such
FacilitY Lease) and (B) such Affiliate shall not accept,
and, if tendered by Mortgagor shall promptly return to
Mortgagor, any payment of rent or other charges payable
under such Facility Lease in excess of the amount required
to pay the debt service and other sums payable under any
mortgage affecting such Affiliate's fee interest in the
applicable Leased Facility (and such Affiliate shall use
such funds only to pay its debt service obligations and
other sums payable under such mortgage) at any time that an
Event of Default, or a Default of the types described in
Section 3.1(a), (b) and (f) of this Mortgage or Section
5.1(a), (b), (f) or (g) of the Trust Indenture, shall have
occurred and be continuing under this Mortgage or the Trust
Indenture.
(c) Subject to the provisions of Subsection 5.18(b)(iii),
if both the lessor's and lessee's estates under any Facility
Lease or any portion thereof shall at any time become vested in
one owner, this Mortgage and the lien created hereby shall
nevertheless not be destroyed or terminated by application of the
doctrine of merger and, in such event, Mortgagee shall continue
(65)
<PAGE>
to have all of the rights and privileges of a first leasehold
mortgagee.
(d) Mortgagor hereby acknowledges that if any Facility
Lease shall be terminated prior to the natural expiration of its
term due to default by the lessee thereunder, and if pursuant to
such Facility Lease, Mortgagee or its designee shall acquire from
the Lessor a new lease of the Leased Facility or any portion
thereof, Mortgagor shall have no right, title or interest in or
to such lease or the leasehold estate created thereby, or the
options therein contained.
(e) Each Facility Lease hereafter entered into or assumed
by Mortgagor as lessee or sublessee shall contain provisions (i)
permitting the assignment of the same to Mortgagee and the
Trustee and permitting assignment without the lessor's consent if
this Mortgage is foreclosed; and (ii) providing protection to
Mortgagee, as leasehold mortgagee, in form reasonably
satisfactory to Mortgagee.
Section 5.19. Superior Mortgages.
(a) Mortgagor shall at all times fully perform and comply
with all agreements, covenants, terms and conditions imposed upon
or assumed by it as mortgagor under the Superior Mortgages prior
to the expiration of any notice and/or cure period provided in
each such Superior Mortgage. If a notice of default has been
given by the holder of any Superior Mortgage, Mortgagee may rely
thereon and take any action Mortgagee deems necessary in its sole
discretion to prevent or to cure any default by Mortgagor in the
performance of or compliance with any of the agreements,
covenants, terms or conditions imposed upon or assumed by
Mortgagor as mortgagor under each of the Superior Mortgages even
though the existence of such default or the nature thereof be
questioned or denied by Mortgagor or by any party on behalf of
Mortgagor. Without limiting the generality of Section 3.9,
Mortgagor hereby expressly grants to Mortgagee, and agrees that
Mortgagee shall have, the absolute and immediate right to enter
in and upon the Premises or any part thereof to such extent and
as often as Mortgagee, in its sole discretion, deems necessary or
desirable for the purpose permitted by the immediately preceding
sentence, subject only to applicable Legal Requirements. Without
limiting Mortgagor's obligations or Mortgagee's rights set forth
above or limiting Mortgagee's other remedies under this Mortgage,
Mortgagee may (i) pay and expend such sums of money as Mortgagee
in its sole discretion deems necessary or desirable for any such
purpose and (ii) in its sole discretion prepay any Superior
Mortgage then in default, and Mortgagor hereby agrees to pay to
Mortgagee immediately and without demand, all such sums referred
to in (i) and (ii) above so paid and expended by Mortgagee,
together with interest thereon from the date of each such payment
at the highest rate of interest set forth in the Note. All sums
(66)
<PAGE>
so paid and expended by Mortgagee and the interest thereon, shall
be added to and be secured by the lien of this Mortgage.
(b) Mortgagor further covenants and agrees:
(i) Mortgagor shall not, without first obtaining the
consent of Mortgagee in each instance: (A) modify, replace
or refinance any Superior Mortgage if (x) the collateral
securing the lien thereof would be increased thereby (other
than after-acquired property required by the terms of the
Superior Mortgage to be encumbered thereby) or (y) such
modification, replacement or refinancing violates any other
provision of this Mortgage or the Trust Indenture or (B)
acquire or permit or suffer any Affiliate of Mortgagor to
acquire any Superior Mortgage or any interest therein;
(ii) Mortgagor shall timely pay and perform all of the
obligations to be paid or performed by the mortgagor under
each Superior Mortgage, the note secured thereby and any
other instrument evidencing or securing the indebtedness
owing to any holder of any Superior Mortgage;
(iii) at any time and from time to time, Mortgagor
shall upon request of Mortgagee promptly use its reasonable
efforts to obtain an estoppel certificate or letter
addressed to Mortgagee from holders of the Superior
Mortgages, such certificate or letter to be in such form as
Mortgagee shall reasonably request;
(iv) Mortgagor shall promptly give to Mortgagee copies
of (A) all notices of default or (B) any other notice or
communication with respect to events which relate to the
possible impairment of the security of this Mortgage, which
Mortgagor shall give or receive under the Superior Mortgages
and shall promptly notify Mortgagee of any default under any
Superior Mortgages on the part of Mortgagor.
Section 5.20. Indemnification.
Mortgagor shall protect, indemnify, hold harmless and defend
Mortgagee and its directors, officers, partners, shareholders,
agents, servants and employees from and against any and all
liabilities, obligations, claims, damages, penalties, causes of
action, costs and expenses (including, without limitation,
reasonable attorneys' fees, disbursements and court costs),
imposed upon or incurred by or asserted against Mortgagee by
reason of (a) any injury to or death of Persons or loss of or
damage to property occurring on or about the Premises or any part
thereof or the adjoining sidewalks, curbs, vaults and vault
spaces, if any, streets, alleys or ways, (b) any use, nonuse or
condition of the Premises or any part thereof or the adjoining
sidewalks, curbs, vaults and vault spaces, if any, streets,
(67)
<PAGE>
alleys or ways, (c) any failure on the part of Mortgagor to
perform or comply with any of the terms of this Mortgage, (d)
performance of any labor or services or the furnishing of any
materials or other property in respect of the Premises or any
part thereof made or suffered to be made by or on behalf of
Mortgagor, (e) any negligence or tortious act on the part of
Mortgagor or any of its agents, contractors, lessees, licensees
or invitees, or (f) any work in connection with the Premises;
provided, that no amounts shall be payable to Mortgagee under
this Section 5.20 in respect of liabilities, obligations, claims,
damages, penalties, causes of action, costs or expenses imposed
upon or incurred by or asserted against Mortgagee to the extent
the same result from any negligence or tortious act on the part
of Mortgagee or any of its agents, contractors, lessees,
licensees or invitees. All amounts payable to Mortgagee under
this Section 5.20 shall be payable on demand; provided, that with
respect to consequential damages (other than attorneys' fees,
disbursements and court costs imposed upon or incurred by
Mortgagee in connection therewith, which shall in all events be
payable on demand), no such amounts shall be payable until, and
to the extent that, (i) there has been entered the final
determination of a court of competent jurisdiction awarding such
consequential damages to the party or parties seeking such
damages or (ii) an agreement of settlement with respect thereto
(which shall have been previously approved by Mortgagor, such
consent not to be unreasonably withheld) shall have been executed
by Mortgagee and such party or parties. Any such amounts which
are not paid within 5 days after demand therefor by Mortgagee
shall bear interest at the rate set forth in the Note from the
date of such demand and all such amounts and interest thereon
shall be secured by the lien of this Mortgage. In case any
action, suit or proceeding is brought against Mortgagee by reason
of any such occurrence, Mortgagor, upon request of Mortgagee,
shall, at Mortgagor's expense, resist and defend such action,
suit or proceeding or cause the same to be resisted or defended
by counsel designated by Mortgagor and approved by Mortgagee,
which approval shall not be unreasonably withheld; provided, that
Willkie, Farr & Gallagher is hereby approved by Mortgagee.
(68)
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed and attested, all as of the day and
year first above written.
TRUMP'S CASTLE ASSOCIATES
Witness: ____________________ By: _________________________
Name: Donald J. Trump
Title: General Partner
FIRST BANK NATIONAL ASSOCIATION
Witness: ____________________ By: _________________________
Name:
Title:
(69)
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
BE IT REMEMBERED, that on December __, 1993, before me, the
subscriber, a Notary Public of the State of New York, personally
appeared Donald J. Trump, to me known, who, being by me duly sworn
did depose and say that he resides at 721 Fifth Avenue, New York, New
York; that he is managing general partner of TRUMP'S CASTLE
ASSOCIATES, the partnership described in and which executed the above
instrument, and he acknowledged that he signed and delivered the same
on behalf of such partnership as his voluntary act and deed and as
the voluntary act and deed of said partnership, pursuant to authority
of the board of directors of said partnership, and that he received a
true copy of the within instrument on behalf of said general
partnership.
_________________________
Notary Public
(NOTARY SEAL)
(70)
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the _____ day of December, 1993, before me, personally came
Frank P. Leslie, to me known, who, being by me duly sworn did depose
and say that he is Assistant Vice President of First Bank National
Association, the national banking association described in and which
executed the above instrument; that he knows the corporate seal of
such corporation; that the seal affixed to said instrument is such
corporate seal; that it was so affixed pursuant to authority of the
Board of Directors of such corporation; and that he signed his name
thereto pursuant to like authority.
_________________________
Notary Public
(NOTARY SEAL)
(71)
<PAGE>
ASSIGNMENT AGREEMENT
dated as of December 28, 1993
by
TRUMP'S CASTLE FUNDING, INC.,
a New Jersey corporation, as Assignor
to
FIRST BANK NATIONAL ASSOCIATION,
as Trustee of the Mortgage Note Indenture, as Assignee
Prepared by_________________________
John A. Ritsher, Esq.
Ropes & Gray
One International Place
Boston, Massachusetts 02110
(617) 951-7000
<PAGE>
<PAGE>
ASSIGNMENT AGREEMENT
This ASSIGNMENT AGREEMENT (the "Assignment") dated as of
December 28, 1993 from TRUMP'S CASTLE FUNDING, INC., a New Jersey
corporation ("Assignor"), to FIRST BANK NATIONAL ASSOCIATION, a
national banking association, as Trustee under the Indenture, as
defined below ("Assignee") and as successor trustee to First
Fidelity Bank, National Association.
W I T N E S S E T H:
WHEREAS, Assignor, a wholly-owned subsidiary of Trump's
Castle Associates, a New Jersey general partnership (the
"Partnership"), functions as the Partnership's financing vehicle
for advancing to the Partnership the proceeds of various issues
of Assignor's debt securities against receipt of the
Partnership's promissory notes, secured by a mortgage upon the
Partnership's assets; and
WHEREAS, pursuant to a recapitalization of Assignor
consummated on the date hereof, certain of Assignor's outstanding
9 .5% Mortgage Bonds due 1998 were exchanged for (i) $251,025,000
aggregate principal amount of Assignor's 11 3/4% Mortgage Notes
due 2003 (the "Mortgage Notes"), issued pursuant to an Indenture
of even date herewith entered into by the Assignor, as issuer,
the Partnership, as guarantor, and the Assignee, as Indenture
Trustee (the "Mortgage Note Indenture") (the recipients of the
Mortgage Notes being referred to as the "Holders") and (ii)
$38,742,609 aggregate principal amount of Assignor's Increasing
Rate Subordinated Pay-in-Kind Notes due 2005 (the "PIK Notes"),
issued, together with approximately $11,756,867 aggregate
principal amount of PIK Notes provided as certain merger
consideration, pursuant to a separate indenture (the "PIK Note
Indenture"), and concurrently therewith the Partnership in
exchange for the surrender of its then outstanding Amended and
Restated Partnership Note, dated May 29,1992, issued to the
Assignor two new notes, each dated concurrently herewith, in the
principal amounts of $242,141,304 Million (the "Partnership
Note"), and $50,499,476 Million (the "Subordinated Partnership
Note"), respectively, and terminated all instruments securing
said surrendered 1992 note. The Partnership Note is secured by
an Indenture of Mortgage and Security Agreement, dated as of
December 28, 1993, from the Partnership to the Assignor (the
"Note Mortgage"), covering substantially all the Partnership's
assets; and
WHEREAS, pursuant to the provisions of the recapitalization
and in order to secure the payment of the Mortgage Notes and all
other payments due to the holders thereof or the Trustee under
the Mortgage Note Indenture, the Assignor desires to enter into
this Assignment Agreement for the purpose of assigning to the
(1)
<PAGE>
Trustee all of its right, title and interest in and to
substantially all its assets, including the Partnership Note, and
the Note Mortgage (but excluding the Subordinated Partnership
Note); and
WHEREAS, certain terms defined in the Mortgage Note
Indenture are used herein with the meanings there provided.
NOW, THEREFORE, THIS ASSIGNMENT
FURTHER WITNESSETH:
Assignor, for good and valuable consideration, the receipt
of which is hereby acknowledged, does hereby sell, assign and
transfer unto Assignee and unto its successors and to its assigns
forever, for its benefit and for the benefit of the Holders, and
does hereby grant to Assignee a security interest in and to all
of Assignor's estate, right, title and interest in, to and under
any and all of the following described property, rights and
interests (collectively, the "Assigned Properties"), but
expressly excluding the Subordinated Partnership Note:
GRANTING CLAUSE FIRST
All right, title and interest of Assignor in and to the
Partnership Note, including all renewals, extensions and
modifications of the same, and, without limiting the generality
of the foregoing, the present, continuing and future right to
make claim for, collect or cause to be collected, receive or
cause to be received directly from the Partnership thereunder,
all payments of principal, interest and other sums of money
payable thereunder.
GRANTING CLAUSE SECOND
All right, title and interest of Assignor in and to the Note
Mortgage, including all extensions, renewals and modifications of
the same.
TO HAVE AND TO HOLD all of said properties, rights and
interests unto Assignee and its successors and assigns forever.
THIS ASSIGNMENT FURTHER WITNESSETH, that Assignor hereby
agrees and covenants with Assignee as follows:
ARTICLE I
PARTICULAR COVENANTS OF ASSIGNOR
Section 1.01. Performance of Covenants. Assignor
represents, warrants and covenants that it is duly authorized to
enter into this Assignment, and to grant and convey a lien on and
security interest in the Assigned Properties to Assignee in the
(2)
<PAGE>
manner and to the extent herein set forth and that all action on
its part required for the execution and delivery of this
Assignment has been duly and effectively taken.
Section 1.02. Further Action Required.
(a) Assignor covenants that it will, from time to time,
execute and deliver such further instruments and take such
further actions as may be reasonably required to carry out the
purposes of this Assignment.
(b) Assignor hereby appoints Assignee as its lawful
attorney-in-fact (such power being coupled with an interest) in
the name of Assignor or Assignee or both to execute any
instruments or to take any actions to enforce all rights, powers
and remedies of Assignor under or pursuant to the Assigned
Properties.
(c) Nothing contained herein shall limit the rights of
Assignee contained in the Note Mortgage or the Mortgage Note
Indenture.
ARTICLE II
OBLIGATIONS OF ASSIGNEE
Section 2.01. Continuing Obligations.
(a) Assignee shall have no obligation, duty or liability
with respect to the Assigned Properties or any of them (other
than those specifically assumed in its capacity as Trustee
pursuant to the Mortgage Note Indenture).
(b) Assignor shall at all times remain liable to observe and
perform all of its covenants and obligations, if any, under the
Assigned Properties, and does hereby agree to indemnify and hold
harmless Assignee, its successors and assigns, from any
liability, loss, damage or expense it or they may incur under the
Assigned Properties or by reason of this Assignment.
ARTICLE III
PAYMENTS
Section 3.01. Payments. All Revenues (as hereinafter
defined) due and to become due under or pursuant to the Assigned
Properties shall be paid by the Partnership directly to Assignee
at the address set forth in Section 6.02 hereof.
Section 3.02. Acknowledgment. The Partnership hereby joins
in the execution of this Assignment to acknowledge (i) the
(3)
<PAGE>
assignment by Assignor to Assignee of Assignor's right, title and
interest in, to and under the Assigned Properties, (ii) the
Partnership's agreement to make payment of all Revenues under the
Assigned Properties directly to Assignee at the address set forth
in this Assignment, and (iii) the right of Assignee to exercise
or enforce in its own name, in the name of Assignor, or both, all
of the rights, powers and remedies of Assignor in, to and under
the Assigned Properties.
Section 3.03. Revenues. As used herein, the term
"Revenues" shall mean (a) all amounts paid or payable by the
Partnership under the Partnership Note, the Mortgage Note
Indenture, or the Note Mortgage, and (b) the net proceeds
realized upon or as a result of the enforcement of any mortgage
lien or security interest granted under the Assigned Properties
or this Assignment or upon or as a result of the exercise of any
right or remedy under the Assigned Properties or this Assignment.
Section 3.04. Confirmation. Assignor hereby agrees, and
the Partnership hereby acknowledges, that the Partnership may
rely exclusively on Assignee's directive that Assignee is
entitled to take action under this Assignment.
ARTICLE IV
DEFAULT PROVISIONS AND REMEDIES
Section 4.01. Enforcements of Remedies.
(a) Upon the occurrence and continuance of any Event of
Default (as such term is defined in the Mortgage Note Indenture;
each an "Event of Default"), Assignee may (upon the direction of
the Holders or, if the rights of the Holders would be prejudiced
by any delay in taking such action, without the direction of the
Holders), at its option, (i) proceed directly to protect and
enforce its rights and the rights of any Holders under this
Assignment or pursuant to the Assigned Properties, or any one of
them, by such suits, actions or special proceedings in equity or
at law, or by proceedings in the office of any board or officer
having jurisdiction, either for the specific performance of any
covenant or agreement contained herein, or in the Assigned
Properties, or any of them, or in aid of execution of any power
granted herein or pursuant to the Assigned Properties, or any one
of them, or for the enforcement of any proper legal or equitable
remedy, including, without limitation, foreclosure of the Note
Mortgage and/or the sale of the collateral or any part thereof
secured thereby at such foreclosure sale, subject to statutory
and other legal requirements, as Assignee shall deem most
effective to protect and enforce such rights, and Assignor hereby
appoints Assignee as its lawful attorney-in-fact (such power
being coupled with an interest) in the name of Assignor or
Assignee or both to effectuate such foreclosure and/or sale of
(4)
<PAGE>
such collateral or part thereof; or (ii) instruct, direct and
cause Assignor to effectuate the foregoing on behalf of and for
the benefit of Assignee and the Holders, it being further
understood that the Partnership joins in the execution of this
Assignment in order to acknowledge its agreement to promptly and
duly execute and deliver any and all documents and take any and
all actions required by Assignee in order to permit Assignee to
foreclose and/or sell such collateral or part thereof, and obtain
the benefits of this Assignment, as aforesaid.
(b) Upon the occurrence and continuance of any such Event of
Default, Assignee shall (upon the direction of the Holders or, if
the rights of the Holders would be prejudiced by any delay in
taking such action, without the direction of the Holders) be
entitled to sue for, enforce payment of and receive any and all
amounts then and at any time remaining due from Assignor or the
Partnership for principal and interest on the Partnership Note,
or other sums due under the Note Mortgage or the Mortgage Note
Indenture, as the case may be, or otherwise under any of the
provisions of the Assigned Properties, or any of them, in any of
such events with interest on overdue payments of such principal,
as set forth in the Partnership Note, from the date of such Event
of Default to the date of such payment, together with any and all
fees, costs and expenses of collection (including reasonable
attorneys' fees and court costs), subject to statutory and other
legal requirements.
(c) Regardless of the occurrence of an Event of Default,
Assignee may institute and maintain or cause in the name of
Assignor or Assignee or both to be instituted and maintained such
suits and proceedings as Assignee may be advised by its counsel
shall be necessary and appropriate to prevent any impairment of
the Assigned Properties, or any of them, and to protect its
interests in the Assigned Properties, and in the rents, issues,
rights, revenues and other income arising therefrom, including
power to institute and maintain proceedings to restrain the
enforcement or compliance with any governmental enactment, rule
or order that may be unconstitutional or otherwise invalid, if
the enforcement of or compliance with such enactment, rule or
order would impair the security hereunder or would be materially
prejudicial to the interest of the Assignee.
(d) Nothing contained in this Article IV is intended to
grant Assignee any greater remedies and rights than those allowed
to Assignor in the respective Assigned Properties. In the event
or any conflict between the remedies and rights contained in any
of the Assigned Properties and the remedies and rights contained
in this Article IV, the remedies and rights set forth in the
applicable Assigned Property shall govern.
(5)
<PAGE>
ARTICLE V
DISCHARGE OF ASSIGNMENT
Section 5.01. Discharge of Assignment. If Assignor shall
pay or cause to be paid, or there shall otherwise be paid, to
Assignee and/or the Holders, all amounts required to be paid by
Assignor pursuant to the Mortgage Note Indenture and the Mortgage
Notes, and the conditions precedent for the Mortgage Note
Indenture to cease, determine and become null and void (except
for any surviving rights of transfer or exchange of the Mortgage
Notes and any right to receive payments of principal and interest
as provided in Article Thirteen or Section 10.3 of the Mortgage
Note Indenture) in accordance with Article Thirteen of the
Mortgage Note Indenture, Assignee shall promptly cancel and
discharge of record this Assignment and any financing statements
filed in connection herewith and execute and deliver to Assignor
and to the Partnership all such instruments as may be appropriate
to evidence such discharge and satisfaction of any lien or liens,
and Assignee shall pay over or deliver to Assignor all other
moneys and securities held by it pursuant to this Assignment,
which are not required for the payment of (a) principal and
redemption price, if applicable, of and interest on, the Mortgage
Notes and (b) and all other amounts required to be paid by
Assignor pursuant to the Mortgage Note Indenture and the Mortgage
Notes.
ARTICLE VI
MISCELLANEOUS PROVISIONS
Section 6.01. Binding Successors and Assigns. All of the
covenants, stipulations, obligations and agreements contained
in this Assignment shall be binding upon and inure to the benefit
of Assignor, Assignee and the Partnership and their respective
successors and assigns.
Section 6.02. Notices.
Any request, notice, demand, authorization, direction,
request or other instrument authorized or required by this
Assignment to be given to or filed with Assignor, Assignee, or
the Partnership (collectively "Notices") shall be deemed given
when either (i) delivered by hand (including by overnight
courier) or (ii) two days after sending by registered or
certified mail, postage prepaid, addressed as follows:
(6)
<PAGE>
(i) To Assignee:
First Bank National Association
c/o First Trust National Association
180 East Fifth Street
St. Paul, Minnesota 55010
Attention: Corporate Trust and Agency Group
(ii) To Assignor:
Trump's Castle Funding, Inc.
Trump Castle Casino Resort
Brigantine Boulevard at Huron Avenue
Atlantic City, New Jersey 08401
Attention: Chief Executive Officer
and
The Trump Organization, Inc.
725 Fifth Avenue
New York, New York 10022
Attention: Donald J. Trump
(iii) To the Partnership:
Trump's Castle Associates
Trump Castle Casino Resort
Brigantine Boulevard at Huron Avenue
Atlantic City, New Jersey 08401
Attention: Chief Executive Officer
and
The Trump Organization, Inc.
725 Fifth Avenue
New York, New York 10022
Attention: Donald J. Trump
and
Willkie Farr & Gallagher
One Citicorp Center
153 East 53rd Street
New York, New York 10022
Attention: Thomas M. Cerabino, Esq.
(7)
<PAGE>
(b) By Notice to the Partnership, Assignor and or Assignee,
given as provided above, any party may designate additional or
substitute addresses for Notices, which shall, notwithstanding
Subsection (a) above, be deemed given when received.
Section 6.04. Partial Invalidity. In case any one or more
of the provisions of this Assignment shall for any reason be held
to be illegal or invalid, such illegality or invalidity shall not
affect any other provision of this Assignment, but this
Assignment shall be construed and enforced at the time as if such
illegal or invalid provisions had not been contained herein or
therein, nor shall such illegality or invalidity or any
application thereof affect any legal and valid application herein
or thereof from time to time.
Section 6.05. Applicable Law. This Assignment shall be
governed by and construed under the internal laws of the State of
New Jersey, without giving effect to the principles of conflicts
of law.
Section 6.06. No Amendments. For so long as the Mortgage
Notes shall remain outstanding, this Assignment may not be
modified, amended or terminated except in accordance with the
provisions of the Mortgage Note Indenture or the Assigned
Properties.
Section 6.07. Casino Control Act. Each of the provisions
of this Assignment is subject to and shall be enforced in
compliance with the provisions of the New Jersey Casino Control
Act.
Section 6.08. Limitation on Liability. Notwithstanding
anything herein or any other agreement, document, certificate,
instrument, statement or omission referred to below to the
contrary, the Partnership and the Assignor are liable hereunder
only to the extent of the assets of the Partnership and the
interest of the Assignor in the Assigned Properties which are
secured by the Partnership's assets and no other person or
entity, including, but not limited to, any partner, officer,
representative, committee or committee member of the Partnership
or any partner therein or of any Affiliate (as defined in the
Indenture) of the Partnership or any incorporator, officer,
director or shareholder of the Assignor, of any corporate partner
of the Partnership, or of any corporate Affiliate of the
Partnership, or any Affiliate or controlling person or entity of
any of the foregoing, or any agent, employee or lender of any of
the foregoing or any successor, personal representative, heir or
assign of any of the foregoing, in each case past, present or as
they may exist in the future, shall be liable in any respect
(including without limitation for the breach of any
representation, warranty, covenant, agreement, condition or
indemnification or contribution undertaking contained herein or
therein) under, in connection with, arising out of or relating to
(8)
<PAGE>
this Assignment, or any other agreement, document, certificate,
instrument or statement (oral or written) related to, executed or
to be executed, delivered or to be delivered, or made or to be
made, or any omission made or to be made, in connection with any
of the foregoing or any of the transactions contemplated in any
such agreement, document, certificate, instrument or statement.
Any agreement, document, certificate, statement or other
instrument to be executed simultaneously with, in connection
with, arising out of or relating to this Assignment or any other
agreement, document, certificate, statement or instrument
referred to above, or any agreement, document, certificate,
statement or instrument contemplated hereby shall contain
language mutatis mutandis to this paragraph and, if such language
is omitted, shall be deemed to contain such language.
6.09. Indemnification. Assignor agrees to indemnify
Assignee for, and to hold it harmless against, any loss,
liability or expense incurred without negligence or bad faith
on its part, arising out of or in connection with the
acceptance or administration of this Assignment, including the
costs and expenses of defending itself against any claim, or with
the exercise or performance of any of its powers or duties
hereunder.
IN WITNESS WHEREOF, Assignor, Assignee, and the Partnership
have executed this Assignment as of the date first above written.
TRUMP'S CASTLE FUNDING, INC.
Attest:_____________________ By: _________________________
Secretary Title: President
TRUMP'S CASTLE ASSOCIATES,
a New Jersey general partnership
Attest:_____________________ By: _________________________
Secretary Title: General Partner
FIRST BANK NATIONAL ASSOCIATION,
as Trustee under the Mortgage
Note Indenture
Attest:_____________________ By: _________________________
Assistant Secretary Title:
(9)
<PAGE>
<PAGE>
STATE OF NEW YORK ss.:
COUNTY OF NEW YORK
BE IT REMEMBERED, that on _____________, 1993, before me,
the subscriber, personally appeared DONALD J. TRUMP, the Managing
Partner of TRUMP'S CASTLE ASSOCIATES, a New Jersey general
partnership, who, I am satisfied, is the person who has signed
the within instrument on behalf of such general partnership, and
I having first made known to him the contents thereof he
thereupon acknowledged that he signed and delivered the said
instrument in his capacity as such Managing Partner aforesaid,
and that the within instrument is the voluntary act and deed of
said general partnership.
______________________________
Notary Public
(10)
<PAGE>
<PAGE>
STATE OF NEW YORK ss.:
COUNTY OF NEW YORK
. BE IT REMEMBERED, that on ______________, 1993, before me,
the subscriber, personally appeared DONALD J. TRUMP, the
President of TRUMP'S CASTLE FUNDING, INC., the corporation named
in the within document, who, I am satisfied, is the person who
has signed the within instrument; and I having first made known
to him the contents thereof he acknowledged that he signed,
sealed with the corporate seal and delivered the said instrument
as such officer aforesaid; that the within instrument is the
voluntary act and deed of the corporation, made by virtue of
authority from its Board of Directors.
______________________________
Notary Public
(11)
<PAGE>
<PAGE>
STATE OF NEW YORK ss.:
COUNTY OF NEW YORK
BE IT REMEMBERED, that on _______, 1993, before me, the
subscriber, personally appeared Frank P. Leslie, an Assistant
Vice President of FIRST BANK NATIONAL ASSOCIATION, the
corporation named in the within document, who, I am satisfied, is
the person who has signed the within instrument; and I having
first made known to him the contents thereof he acknowledged that
he signed, sealed with the corporate seal and delivered the said
instrument as such officer aforesaid; that the within instrument
is the voluntary act and deed of the corporation, made by virtue
of authority from its Board of Directors.
_________________________
Notary Public
(12)
<PAGE>
PARTNERSHIP NOTE
$242,141,304 December 28, 1993
FOR VALUE RECEIVED, TRUMP'S CASTLE ASSOCIATES, a general
partnership existing under the laws of the State of New Jersey
(the "Partnership"), hereby promises to pay to the order of
TRUMP'S CASTLE FUNDING, INC., a corporation duly organized and
existing under the laws of the State of New Jersey ("TCFI", such
corporation and any subsequent holder of this Note being herein
referred to as the "Payee"), having its principal office at
Trump's Castle Casino Resort, Brigantine Boulevard at Huron
Avenue, Atlantic City, New Jersey 08401, on November 15, 2003,
or, if earlier, any other Maturity Date (as such term is defined
in the Indenture hereinafter referred to) of the Mortgage Notes
(as hereinafter defined), a principal sum equal to the aggregate
principal amount of TCFI's 11 3/4% Mortgage Notes due 2003 (the
"Mortgage Notes") issued by TCFI pursuant to that certain
Indenture dated as of the date hereof (the "Indenture"), among
TCFI, as Issuer, the Partnership, as Guarantor, and First Bank
National Association, a national banking association, as Trustee
(such national banking association, and any successor pursuant to
the terms of the Indenture, being referred to as the "Trustee"),
Outstanding on such Maturity Date and to pay interest on the
unpaid balance hereof at the rate of 11 3/4% per annum from the
date hereof to such Maturity Date in semiannual installments of
interest on each May 15 and November 15 (each an "Interest
Payment Date"), commencing on May 15, 1994; provided, however,
that if, as of a date prior to November 15, 1998, TCFI shall have
defeased or redeemed all the then Outstanding PIK Notes (as
defined in the Indenture) through the application of the proceeds
of one or more Equity Offerings (as defined in the Indenture) or
of internally generated funds and not through the incurrence of
additional indebtedness, then on and after the first day of the
calendar month next commencing after such date the aforesaid
interest rate of 11 3/4% per annum shall be reduced to 11 1/2%
per annum. The principal amount of this Note as of the date
hereof is $242,141,304.
Payments of principal and interest on this Note shall be
made at the address of the Payee set forth above, or at such
other address as the Payee may from time to time designate in
writing. Interest will be computed on the basis of a 360-day
year of twelve 30-day months. Principal and interest shall be
paid in money of the United States that at the time of payment is
legal tender for public and private debts.
(1)
<PAGE>
Payment of the principal of, premium, if any, and interest
on this Note is subordinated to the prior payment of the
principal of, premium, if any, and interest on the Senior
Partnership Note.
All terms in this Note defined in the Indenture shall have
the same meaning herein as therein, unless the context requires
otherwise.
1. (a) This Note shall be prepaid (or, as described below
shall be deemed to have been prepaid) (i) in connection with any
mandatory redemption or optional redemption or the defeasance or
the covenant defeasance of the Mortgage Notes or (ii) in
connection with the purchase or other acquisition by the
Partnership or TCFI of any Mortgage Notes and the surrender of
such Mortgage Notes to the Trustee for cancellation in accordance
with the provisions of the Indenture (it being expressly
understood that the same Mortgage Note shall reduce the principal
amount of this Note only once).
(b)(i) Each prepayment in respect of any redemption of
Mortgage Notes (A) shall be made at the time that payment in
respect of such redemption is required to be made to the Paying
Agent under the Indenture and (B) shall be in an amount equal to
the aggregate amount paid to holders of Mortgage Notes on account
of the redemption thereof.
(ii) A prepayment in respect to a defeasance or covenant
defeasance of the Mortgage Notes (A) shall be deemed to have been
made at the time that payment in respect of such defeasance or
covenant defeasance is made to the Trustee in accordance with
Article Four of the Indenture and (B) shall be deemed to have
been made in an amount equal to the entire outstanding
indebtedness represented by this Note and, upon such prepayment,
this Note shall be deemed to have been cancelled.
(iii) Each prepayment in respect of any purchase or other
acquisition by the Partnership or TCFI of Mortgage Notes and
surrender of such Mortgage Notes to the Trustee for cancellation
(A) shall be deemed to have been made at the time of surrender of
the Mortgage Notes for cancellation and (B) shall be deemed to
have been made in an amount equal to the entire outstanding
indebtedness represented by the Mortgage Notes surrendered for
cancellation.
2. Except as set forth in paragraph 1 above, this Note may
not be prepaid, in whole or in part.
3. The Partnership shall pay interest on overdue principal
in accordance with the provisions of the Indenture.
(2)
<PAGE>
4. This Note is secured by an Indenture of Mortgage and
Security Agreement made by the Partnership to TCFI, dated as of
the date hereof, (the "Note Mortgage") on property described in
the Note Mortgage (the "Property").
5. If (i) the Partnership defaults in the payment of
interest hereunder when the same becomes due and payable and the
default continues for a period of thirty (30) days; (ii) the
Partnership defaults in the payment of the principal hereunder or
any part thereof when the same becomes due and payable, at
Maturity; (iii) there shall occur any other Event of Default
under the Note Mortgage or any other Mortgage Document; or (iv)
there shall occur any Event of Default under the Indenture, then
on the happening of any such event, the Payee may declare the
entire outstanding principal amount of this Note and all accrued
and unpaid interest thereon and all sums due under this Note and
the Note Mortgage to become immediately due and payable.
6. The Partnership hereby waives presentment and demand for
payment, notice of dishonor, protest and notice of protest of
this Note and agrees to pay all costs of collection when
incurred, including reasonable attorneys' fees, which costs may
be added to the amount due under this Note and be receivable
therewith, and to perform and comply with each of the terms,
covenants and provisions contained in this Note and the Note
Mortgage on the part of the Partnership to be observed or
performed. Except as expressly provided herein, no release of
any security for the principal sum due under this Note or
extension of time for payment of this Note, or any installment
hereof, and no alteration, amendment or waiver of any provision
of this Note or the Note Mortgage shall release, discharge,
modify, change or affect the liability of the Partnership under
this Note or the Note Mortgage.
7. The Partnership covenants (to the extent that it may
lawfully do so) that it will not at any time insist upon, or
plead, or in any manner whatsoever claim or take the benefit or
advantage of, any usury, stay or extension law or any other law
which would prohibit or forgive the Partnership from paying all
or any portion of the interest on this Note, wherever enacted,
now or at any time hereafter in force, or which may otherwise
affect the covenants or the performance of this Note or the Note
Mortgage; and the Partnership (to the extent that it may lawfully
do so) hereby expressly waives all benefit or advantage of any
such law, and covenants that it will not hinder, delay or impede
the execution of any power herein granted to the Payee, but will
suffer and permit the execution of every such power as though no
such law had been enacted.
8. The terms of this Note shall be governed by and
construed under the internal laws of the State of New Jersey,
without giving effect to principles of conflicts of law.
(3)
<PAGE>
9. This Note may not be changed or terminated orally, but
only by an agreement in writing signed by the party against whom
enforcement of such change or termination is sought.
10. The Partnership shall not claim any credit or deduction
from the interest or principal due hereunder by reason of payment
of any tax assessed upon the Property.
11. Whenever the provisions of this Note and the provisions
of the Indenture shall be inconsistent, the provisions of the
Indenture shall govern.
12. This Note is subject to and shall be enforced in
compliance with the provisions of the New Jersey Casino Control
Act.
13. Notwithstanding anything herein or in any other
agreement, document, certificate, instrument, statement or
omission referred to below to the contrary, the Partnership is
liable hereunder only to the extent of the assets of the
Partnership and no other person or entity, including, but not
limited to, any partner, officer, representative, committee or
committee member of the Partnership or any partner therein or of
any Affiliate of the Partnership, or any incorporator, officer,
director or shareholder of any corporate partner of the
Partnership or of any corporate Affiliate of the Partnership, or
any Affiliate or controlling person or entity of any of the
foregoing, or any agent, employee, or lender of any of the
foregoing, or any successor, personal representative, heir or
assign of any of the foregoing, in each case past, present or as
they may exist in the future, shall be liable in any respect
(including without limitation for the breach of any
representation, warranty, covenant, agreement, condition or
indemnification or contribution undertaking contained herein or
therein) under, in connection with, arising out of or relating to
this Note, or any other agreement, document, certificate,
instrument or statement (oral or written) related to, executed or
to be executed, delivered or to be delivered, or made or to be
made, or any omission made or to be made, in connection with any
of the foregoing or any of the transactions contemplated in any
such agreement, document, certificate, instrument or statement.
Any agreement, document, certificate, statement or other
instrument to be executed simultaneously with, in connection
with, arising out of or relating to this Note, the Note Mortgage,
the Indenture, the Mortgage Notes or any other agreement,
document, certificate, statement or instrument referred to above,
or any agreement, document, certificate, statement or instrument
contemplated hereby shall contain language mutatis mutandis to
this paragraph and, if such language is omitted, shall be deemed
to contain such language.
(4)
<PAGE>
14. Whenever used herein, the singular number shall include
the plural, the plural the singular, and the words "Payee" and
"Partnership" shall include their respective successors and
assigns.
IN WITNESS WHEREOF, the Partnership has duly executed this
Note as of the day and year first above written.
TRUMP'S CASTLE ASSOCIATES,
a New Jersey general
partnership
Attest:____________________ BY: _______________________________
Secretary Donald J. Trump,
its Managing Partner
(5)
<PAGE>
<PAGE>
STATE OF NEW YORK )
ss.:
COUNTY OF NEW YORK )
BE IT REMEMBERED, that on ____________, 1993, before me, the
subscriber, personally appeared DONALD J. TRUMP, the Managing
Partner of TRUMP'S CASTLE ASSOCIATES, a New Jersey general
partnership, who, I am satisfied, is the person who has signed
the within instrument on behalf of such general partnership, and
I having first made known to him the contents thereof he
thereupon acknowledged that he signed and delivered the said
instrument in his capacity as such Partner aforesaid, and that
the within instrument is the voluntary act and deed of said
general partnership.
_______________________________
Notary Public
(6)
<PAGE>
TRUMP'S CASTLE FUNDING, INC., as Issuer
FIRST BANK NATIONAL ASSOCIATION, as Trustee
and
TRUMP'S CASTLE ASSOCIATES, as Guarantor
____________________
INDENTURE
Dated as of December 28, 1993
____________________
up to $50,499,476
Increasing Rate Subordinated Pay-in-Kind Notes due 2005
<PAGE>
TABLE OF CONTENTS
PAGE
ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF GENERAL
APPLICATION . . . . . . . . . . . . . . . . . . 1
Section 1.1. Definitions. . . . . . . . . . . . . . . . 1
Acquired Indebtedness. . . . . . . . . . . . . . . . 2
Adjusted Consolidated Interest Expense . . . . . . . 2
Adjusted Consolidated Net Income (Loss). . . . . . . 2
Affiliate. . . . . . . . . . . . . . . . . . . . . . 3
Appraised Value. . . . . . . . . . . . . . . . . . . 3
Average Life to Stated Maturity. . . . . . . . . . . 3
Bankruptcy Law . . . . . . . . . . . . . . . . . . . 3
Board of Directors . . . . . . . . . . . . . . . . . 4
Board Resolution . . . . . . . . . . . . . . . . . . 4
Business Day . . . . . . . . . . . . . . . . . . . . 4
Cage Cash. . . . . . . . . . . . . . . . . . . . . . 4
Capital Lease Obligation . . . . . . . . . . . . . . 4
Capital Stock. . . . . . . . . . . . . . . . . . . . 4
Casino Hotel . . . . . . . . . . . . . . . . . . . . 4
CCC. . . . . . . . . . . . . . . . . . . . . . . . . 4
Certificate of Appraised Value . . . . . . . . . . . 4
Change of Control. . . . . . . . . . . . . . . . . . 4
Code . . . . . . . . . . . . . . . . . . . . . . . . 5
Collateral . . . . . . . . . . . . . . . . . . . . . 5
Company. . . . . . . . . . . . . . . . . . . . . . . 5
Company Request or Company Order . . . . . . . . . . 5
Consolidated Fixed Charge Coverage Ratio . . . . . . 5
Consolidated Income Tax Expense. . . . . . . . . . . 5
Consolidated Net Worth . . . . . . . . . . . . . . . 5
Consolidation. . . . . . . . . . . . . . . . . . . . 5
Corporate Trust Office . . . . . . . . . . . . . . . 6
CRDA . . . . . . . . . . . . . . . . . . . . . . . . 6
Default. . . . . . . . . . . . . . . . . . . . . . . 6
EBITDA . . . . . . . . . . . . . . . . . . . . . . . 6
Equity Interest. . . . . . . . . . . . . . . . . . . 6
Equity Offering. . . . . . . . . . . . . . . . . . . 6
Event of Default . . . . . . . . . . . . . . . . . . 6
Excess Available Cash. . . . . . . . . . . . . . . . 6
Exchange Act . . . . . . . . . . . . . . . . . . . . 6
F,F&E Financing Agreement. . . . . . . . . . . . . . 6
Fair Market Value. . . . . . . . . . . . . . . . . . 6
Gaming Authority . . . . . . . . . . . . . . . . . . 7
Generally Accepted Accounting Principles or GAAP . . 7
Guaranteed Debt. . . . . . . . . . . . . . . . . . . 7
Holder . . . . . . . . . . . . . . . . . . . . . . . 8
** Note: This table of contents shall not, for any
purpose, be deemed to be a part of this Indenture.
(i)
<PAGE>
Indebtedness . . . . . . . . . . . . . . . . . . . . 8
Indenture. . . . . . . . . . . . . . . . . . . . . . 9
Indenture Obligations. . . . . . . . . . . . . . . . 9
Interest Payment Date. . . . . . . . . . . . . . . . 9
Investments. . . . . . . . . . . . . . . . . . . . . 9
Legal Requirements . . . . . . . . . . . . . . . . . 9
Lien . . . . . . . . . . . . . . . . . . . . . . . . 10
Litigation Warrants. . . . . . . . . . . . . . . . . 10
Marina Lease . . . . . . . . . . . . . . . . . . . . 10
Maturity . . . . . . . . . . . . . . . . . . . . . . 10
Midlantic Term Loan. . . . . . . . . . . . . . . . . 10
Mortgage Debt. . . . . . . . . . . . . . . . . . . . 10
Mortgage Documents . . . . . . . . . . . . . . . . . 10
Mortgage Note Indenture. . . . . . . . . . . . . . . 11
Mortgage Notes . . . . . . . . . . . . . . . . . . . 11
NASDAQ . . . . . . . . . . . . . . . . . . . . . . . 11
Net Cash Proceeds. . . . . . . . . . . . . . . . . . 11
NJDGE. . . . . . . . . . . . . . . . . . . . . . . . 11
Note Mortgage. . . . . . . . . . . . . . . . . . . . 11
Noteholder Representative. . . . . . . . . . . . . . 11
Officers' Certificate. . . . . . . . . . . . . . . . 11
Opinion of Counsel . . . . . . . . . . . . . . . . . 11
Outstanding. . . . . . . . . . . . . . . . . . . . . 11
Outstanding Amount . . . . . . . . . . . . . . . . . 12
Pari Passu Indebtedness. . . . . . . . . . . . . . . 12
Partnership. . . . . . . . . . . . . . . . . . . . . 12
Partnership Agreement. . . . . . . . . . . . . . . . 13
Partnership Note . . . . . . . . . . . . . . . . . . 13
Paying Agent . . . . . . . . . . . . . . . . . . . . 13
Permit . . . . . . . . . . . . . . . . . . . . . . . 13
Permitted Holder . . . . . . . . . . . . . . . . . . 13
Permitted Indebtedness . . . . . . . . . . . . . . . 13
Permitted Investment . . . . . . . . . . . . . . . . 15
Permitted Leases . . . . . . . . . . . . . . . . . . 15
Permitted Liens. . . . . . . . . . . . . . . . . . . 15
Person . . . . . . . . . . . . . . . . . . . . . . . 16
PIK Note Register. . . . . . . . . . . . . . . . . . 16
PIK Notes. . . . . . . . . . . . . . . . . . . . . . 16
Pledge Agreement . . . . . . . . . . . . . . . . . . 16
Predecessor PIK Note . . . . . . . . . . . . . . . . 16
Preferred Stock. . . . . . . . . . . . . . . . . . . 16
Prospectus . . . . . . . . . . . . . . . . . . . . . 16
Public Offering. . . . . . . . . . . . . . . . . . . 17
Qualified Capital Stock. . . . . . . . . . . . . . . 17
Qualified Equity Interest. . . . . . . . . . . . . . 17
Redeemable Capital Stock . . . . . . . . . . . . . . 17
Redeemable Equity Interest . . . . . . . . . . . . . 17
Redemption Date. . . . . . . . . . . . . . . . . . . 17
Redemption Price . . . . . . . . . . . . . . . . . . 17
Regular Record Date. . . . . . . . . . . . . . . . . 17
Responsible Officer. . . . . . . . . . . . . . . . . 18
SEC. . . . . . . . . . . . . . . . . . . . . . . . . 18
(ii)
<PAGE>
Securities Act . . . . . . . . . . . . . . . . . . . 18
Senior Indebtedness. . . . . . . . . . . . . . . . . 18
Senior Note Documents. . . . . . . . . . . . . . . . 18
Senior Note Indenture. . . . . . . . . . . . . . . . 18
Senior Note Mortgage . . . . . . . . . . . . . . . . 18
Senior Notes . . . . . . . . . . . . . . . . . . . . 19
Senior Partnership Note. . . . . . . . . . . . . . . 19
Services Agreement . . . . . . . . . . . . . . . . . 19
Services Fee . . . . . . . . . . . . . . . . . . . . 19
Special Record Date. . . . . . . . . . . . . . . . . 19
Stated Maturity. . . . . . . . . . . . . . . . . . . 19
Subordinated Guarantee . . . . . . . . . . . . . . . 19
Subordinated Indebtedness. . . . . . . . . . . . . . 19
Subordinated Partnership Note. . . . . . . . . . . . 19
Subsidiary . . . . . . . . . . . . . . . . . . . . . 19
Temporary Cash Investments . . . . . . . . . . . . . 19
Total Taking or Casualty . . . . . . . . . . . . . . 20
Trump's Priority Interest. . . . . . . . . . . . . . 20
Trust Indenture Act. . . . . . . . . . . . . . . . . 20
Trustee. . . . . . . . . . . . . . . . . . . . . . . 20
Voting Stock . . . . . . . . . . . . . . . . . . . . 20
Wholly-owned Subsidiary. . . . . . . . . . . . . . . 20
Working Capital Facility . . . . . . . . . . . . . . 20
Section 1.2. Other Definitions. . . . . . . . . . . . . 21
Section 1.3. Compliance Certificates and Opinions . . . 21
Section 1.4. Form of Documents Delivered to Trustee . . 22
Section 1.5. Acts of Holders. . . . . . . . . . . . . . 23
Section 1.6. Notices, etc., to Trustee, the Company,
the CCC and the NJDGE. . . . . . . . . . . 23
Section 1.7. Notice to Holders; Waiver. . . . . . . . . 24
Section 1.8. Conflict with Trust Indenture Act. . . . . 25
Section 1.9. Effect of Headings and Table of
Contents . . . . . . . . . . . . . . . . . 25
Section 1.10. Successors and Assigns . . . . . . . . . . 25
Section 1.11. Separability Clause. . . . . . . . . . . . 25
Section 1.12. Benefits of Indenture. . . . . . . . . . . 25
Section 1.13. GOVERNING LAW. . . . . . . . . . . . . . . 25
Section 1.14. Casino Control Act . . . . . . . . . . . . 26
Section 1.15. Legal Holidays . . . . . . . . . . . . . . 26
Section 1.16. Schedules. . . . . . . . . . . . . . . . . 26
Section 1.17. Counterparts . . . . . . . . . . . . . . . 26
ARTICLE TWO FORM OF PIK NOTES . . . . . . . . . . . . . . . 26
Section 2.1. Forms Generally. . . . . . . . . . . . . . 26
Section 2.2. Form of Face of the PIK Notes. . . . . . . 27
Section 2.3. Form of Reverse of PIK Notes . . . . . . . 29
Section 2.4. Form of Trustee's Certificate of
Authentication . . . . . . . . . . . . . . 34
Section 2.5. Form of Subordinated Guarantee.. . . . . . 35
ARTICLE THREE THE PIK NOTES . . . . . . . . . . . . . . . . . 35
Section 3.1. Title and Terms. . . . . . . . . . . . . . 35
(iii)
<PAGE>
Section 3.2. Denominations. . . . . . . . . . . . . . . 36
Section 3.3. Execution, Authentication, Delivery and
Dating . . . . . . . . . . . . . . . . . . 36
Section 3.4. Temporary PIK Notes. . . . . . . . . . . . 38
Section 3.5. Registration, Registration of Transfer
and Exchange . . . . . . . . . . . . . . . 38
Section 3.6. Mutilated, Destroyed, Lost and Stolen
PIK Notes. . . . . . . . . . . . . . . . . 40
Section 3.7. Payment of Interest; Interest Rights
Preserved. . . . . . . . . . . . . . . . . 40
Section 3.8. Persons Deemed Owners. . . . . . . . . . . 43
Section 3.9. Cancellation . . . . . . . . . . . . . . . 43
Section 3.10. Computation of Interest. . . . . . . . . . 43
Section 3.11. Non-recourse . . . . . . . . . . . . . . . 43
ARTICLE FOUR DEFEASANCE AND COVENANT DEFEASANCE. . . . . . . 44
Section 4.1. Option to Effect Defeasance or Covenant
Defeasance . . . . . . . . . . . . . . . . 44
Section 4.2. Defeasance and Discharge . . . . . . . . . 45
Section 4.3. Covenant Defeasance. . . . . . . . . . . . 45
Section 4.4. Conditions to Defeasance or Covenant
Defeasance . . . . . . . . . . . . . . . . 46
Section 4.5. Deposited Money and U.S. Government
Obligations to be Held in Trust; Other
Miscellaneous Provisions . . . . . . . . . 48
Section 4.6. Reinstatement. . . . . . . . . . . . . . . 49
ARTICLE FIVE REMEDIES. . . . . . . . . . . . . . . . . . . . 49
Section 5.1. Events of Default. . . . . . . . . . . . . 49
Section 5.2. Acceleration of Maturity; Rescission and
Annulment. . . . . . . . . . . . . . . . . 51
Section 5.3. Collection of Indebtedness and Suits for
Enforcement by Trustee . . . . . . . . . . 53
Section 5.4. Trustee May File Proofs of Claim . . . . . 54
Section 5.5. Trustee May Enforce Claims Without
Possession of PIK Notes. . . . . . . . . . 55
Section 5.6. Application of Money Collected . . . . . . 55
Section 5.7. Limitation on Suits. . . . . . . . . . . . 55
Section 5.8. Unconditional Right of Holders to
Receive Principal, Premium and Interest. . 56
Section 5.9. Restoration of Rights and Remedies . . . . 56
Section 5.10. Rights and Remedies Cumulative . . . . . . 57
Section 5.11. Delay or Omission Not Waiver . . . . . . . 57
Section 5.12. Control by Holders . . . . . . . . . . . . 57
Section 5.13. Waiver of Past Defaults. . . . . . . . . . 57
Section 5.14. Undertaking for Costs. . . . . . . . . . . 58
Section 5.15. Waiver of Stay, Extension or Usury Laws. . 58
Section 5.16. Unconditional Right of Holders to
Institute Certain Suits. . . . . . . . . . 59
ARTICLE SIX THE TRUSTEE . . . . . . . . . . . . . . . . . . 60
(iv)
<PAGE>
Section 6.1.Duties of Trustee and Notice of Defaults. . . 60
Section 6.2. Certain Rights of Trustee. . . . . . . . . 61
Section 6.3. Trustee Not Responsible for Recitals,
Dispositions of PIK Notes or Application
of Proceeds Thereof. . . . . . . . . . . . 63
Section 6.4. Trustee and Agents May Hold PIK Notes;
Collections; Etc . . . . . . . . . . . . . 63
Section 6.5. Money Held in Trust. . . . . . . . . . . . 63
Section 6.6. Compensation and Indemnification of
Trustee and Its Prior Claim. . . . . . . . 64
Section 6.7. Disqualification; Conflicting Interests. . 65
Section 6.8. Corporate Trustee Required; Eligibility. . 65
Section 6.9. Resignation and Removal; Appointment of
Successor Trustee. . . . . . . . . . . . . 65
Section 6.10. Acceptance of Appointment by Successor . . 67
Section 6.11. Merger, Consolidation or Succession to
Business . . . . . . . . . . . . . . . . . 68
ARTICLE SEVEN HOLDERS' LISTS AND REPORTS BY TRUSTEE AND THE
COMPANY . . . . . . . . . . . . . . . . . . . . 69
Section 7.1. The Company to Furnish Trustee Names and
Addresses of Holders . . . . . . . . . . . 69
Section 7.2. Disclosure of Names and Addresses of
Holders. . . . . . . . . . . . . . . . . . 69
Section 7.3. Reports by Trustee . . . . . . . . . . . . 69
Section 7.4. Reports by the Company . . . . . . . . . . 71
ARTICLE EIGHT CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER
OR LEASE. . . . . . . . . . . . . . . . . . . . 71
Section 8.1. The Company or the Partnership May
Consolidate, Merge, Etc., Only on
Certain Terms. . . . . . . . . . . . . . . 71
Section 8.2. Successor Substituted. . . . . . . . . . . 74
ARTICLE NINE SUPPLEMENTAL INDENTURES . . . . . . . . . . . . 75
Section 9.1. Supplemental Indentures and Agreements
without Consent of Holders . . . . . . . . 75
Section 9.2. Supplemental Indentures and Agreements
with Consent of Holders. . . . . . . . . . 76
Section 9.3. Execution of Supplemental Indentures and
Agreements . . . . . . . . . . . . . . . . 77
Section 9.4. Effect of Supplemental Indentures. . . . . 78
Section 9.5. Conformity with Trust Indenture Act. . . . 78
Section 9.6. Reference in PIK Notes to Supplemental
Indentures . . . . . . . . . . . . . . . . 78
Section 9.7. Record Date. . . . . . . . . . . . . . . . 78
ARTICLE TEN COVENANTS . . . . . . . . . . . . . . . . . . . 79
Section 10.1. Payment of Principal, Premium and
Interest . . . . . . . . . . . . . . . . . 79
Section 10.2. Maintenance of Office or Agency. . . . . . 79
(v)
<PAGE>
Section 10.3. Money for PIK Note Payments to be Held in
Trust. . . . . . . . . . . . . . . . . . . 79
Section 10.4. Corporate and Partnership Existence. . . . 81
Section 10.5. Payment of Taxes and Other Claims. . . . . 81
Section 10.6. Maintenance of Properties. . . . . . . . . 82
Section 10.7. Limitation on Partnership Indebtedness . . 82
Section 10.8. Limitation on Liens. . . . . . . . . . . . 83
Section 10.9. Limitation on Restricted Payments. . . . . 83
Section 10.10. Limitation on Partnership Leases . . . . . 87
Section 10.11. Limitation on Preferred Stock of
Subsidiaries and Subsidiary
Distributions. . . . . . . . . . . . . . . 87
Section 10.12. Limitation on Payment Restrictions
Affecting Subsidiaries . . . . . . . . . . 87
Section 10.13. Purchase of PIK Notes upon Change of
Control. . . . . . . . . . . . . . . . . . 88
Section 10.14. Limitations on Transactions with
Affiliates . . . . . . . . . . . . . . . . 90
Section 10.15. Restriction on Transfer of Assets. . . . . 91
Section 10.16. Limitation on Activities . . . . . . . . . 91
Section 10.17. Restriction on Payment of Services Fee . . 92
Section 10.18. Provision of Financial Statements. . . . . 92
Section 10.19. Statement by Officers as to Default. . . . 92
Section 10.20. Waiver of Certain Covenants. . . . . . . . 93
Section 10.21. Redemption of Certain Gaming Chips . . . . 93
ARTICLE ELEVEN REDEMPTION OF PIK NOTES . . . . . . . . . . . . 94
Section 11.1. Right of Redemption. . . . . . . . . . . . 94
Section 11.2. Applicability of Article . . . . . . . . . 94
Section 11.3. Election to Redeem; Notice to Trustee. . . 94
Section 11.4. Selection by Trustee of PIK Notes to Be
Redeemed . . . . . . . . . . . . . . . . . 94
Section 11.5. Notice of Redemption . . . . . . . . . . . 95
Section 11.6. Deposit of Redemption Price. . . . . . . . 96
Section 11.7. PIK Notes Payable on Redemption Date . . . 96
Section 11.8. PIK Notes Redeemed in Part . . . . . . . . 97
Section 11.9. PIK Notes Redeemed Pursuant to Casino
Control Act. . . . . . . . . . . . . . . . 97
Section 11.10. PIK Notes Redeemed Pursuant to a Total
Taking or Casualty . . . . . . . . . . . . 97
Section 11.11. Redemption of PIK Notes in the Event of
an Equity Offering . . . . . . . . . . . . 97
ARTICLE TWELVE COLLATERAL PROVISIONS . . . . . . . . . . . . . 98
Section 12.1. Pledge Agreement . . . . . . . . . . . . . 98
Section 12.2. Recording, Opinion of Counsel, Etc . . . . 99
Section 12.3. Release of Collateral. . . . . . . . . . .100
Section 12.4. Trust Indenture Act Requirements . . . . .100
Section 12.5. Suits to Protect the Collateral. . . . . .100
Section 12.6. Determinations Relating to Collateral. . .101
Section 12.7. Impairment of Security Interest. . . . . .101
(vi)
<PAGE>
Section 12.8. Release upon Termination of the
Company's Obligations. . . . . . . . . . .101
Section 12.9. Authorization of Receipt of Funds by the
Trustee Under the Pledge Agreement . . . .102
ARTICLE THIRTEEN SATISFACTION AND DISCHARGE . . . . . . . .102
Section 13.1. Satisfaction and Discharge of Indenture. .102
Section 13.2. Application of Trust Money . . . . . . . .103
ARTICLE FOURTEENTH SUBORDINATED GUARANTEE . . . . . . . . . .104
Section 14.1. Subordinated Partnership Guarantee . . . .104
Section 14.2. Continuing Guarantee; No Right of
Set-Off; Independent Obligation. . . . . .104
Section 14.3. Subordinated Guarantee Absolute. . . . . .105
Section 14.4. Right to Demand Full Performance . . . . .107
Section 14.5. Waivers. . . . . . . . . . . . . . . . . .108
Section 14.6. The Partnership Remains Obligated in
Event the Company Is No Longer Obligated
to Discharge Indenture Obligations . . . .108
Section 14.7. Waiver of Rights . . . . . . . . . . . . .109
Section 14.8. Subordinated Guarantee Is in Addition to
Other Security . . . . . . . . . . . . . .109
Section 14.9. Release of Security Interests. . . . . . .109
Section 14.10. No Bar to Further Actions. . . . . . . . .110
Section 14.11. Failure to Exercise Rights Shall Not
Operate As a Waiver; No Suspension of
Remedies . . . . . . . . . . . . . . . . .110
Section 14.12. Successors and Assigns . . . . . . . . . .110
Section 14.13. Release of Subordinated Guarantee. . . . .110
Section 14.14. Execution of Subordinated Guarantee. . . .111
ARTICLE FIFTEENTH HOLDERS' MEETINGS . . . . . . . . . . . .111
Section 15.1. Holders' Meetings Called by Trustee. . . .111
Section 15.2. Holders' Meetings Called by the Company
or Holders . . . . . . . . . . . . . . . .112
Section 15.3. Attendance and Voting. . . . . . . . . . .112
Section 15.4. Conduct of Meetings; Adjournment . . . . .112
Section 15.6. Manner of Voting . . . . . . . . . . . . .113
Exhibit A - Form of Subordinated Partnership Note
Exhibit B - Form of Pledge Agreement
Schedule I - Permitted Indebtedness of Partnership
Schedule II - Permitted Investments<PAGE>
(vii)
<PAGE>
Reconciliation and tie between Trust
Indenture Act of 1939
and Indenture, dated as of December 28, 1993
Trust Indenture Indenture
Act Section Section
ss 310(a)(1) . . . . . . . . . . . 6.8
(a)(2) . . . . . . . . . . . 6.8
(b) . . . . . . . . . . . 6.7, 6.9
ss 312(a) . . . . . . . . . . . 7.1
(c) . . . . . . . . . . . 7.2
ss 314(a) . . . . . . . . . . . 7.4
(a)(4) . . . . . . . . . . . 10.19
(b) . . . . . . . . . . . 12.2
(c)(1) . . . . . . . . . . . 1.3
( c)(2) . . . . . . . . . . . 1.3
(e) . . . . . . . . . . . 1.3
ss 315(b) . . . . . . . . . . . 6.1
ss 316(a)(last
sentence) . . . . . . . . . . . 1.1 ("Outstanding")
(a)(1)(A) . . . . . . . . . . . 5.2, 5.12
(a)(1)(B) . . . . . . . . . . . 5.13
(b) . . . . . . . . . . . 5.8
(c) . . . . . . . . . . . 9.7
ss 317(a)(1) . . . . . . . . . . . 5.3
(a)(2) . . . . . . . . . . . 5.4
ss 318(a) . . . . . . . . . . . 1.8
_________________________
Note: This reconciliation and tie shall not, for any purpose,
be deemed to be a part of the Indenture.
(viii)
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INDENTURE, dated as of December 28, 1993, among TRUMP's
CASTLE FUNDING, INC., a New Jersey corporation (the "Company"),
as issuer, and FIRST BANK NATIONAL ASSOCIATION, a national
banking association ("Trustee"), as trustee and TRUMP'S CASTLE
ASSOCIATES, a New Jersey general partnership, as guarantor
("Partnership" or "Guarantor").
RECITALS OF THE COMPANY
The Company has duly authorized the creation of an issue of
Increasing Rate Subordinated Pay-in-Kind Notes due 2005 (the "PIK
Notes"), of substantially the tenor and amount hereinafter set
forth, and to provide therefor the Company has duly authorized
the execution and delivery of this Indenture.
The Partnership has duly authorized the issuance of a
subordinated guarantee (the "Subordinated Guarantee") of the PIK
Notes, of substantially the terms hereinafter set forth, and to
provide therefore the Partnership has authorized the execution
and delivery of this Indenture and the Subordinated Guarantee.
This Indenture is subject to, and shall be governed by, the
provisions of the Trust Indenture Act that are required to be
part of and to govern indentures qualified under the Trust
Indenture Act.
All acts and things necessary have been done to make (i) the
PIK Notes, when executed by the Company and authenticated and
delivered hereunder and duly issued by the Company, the valid
obligations of the Company and (ii) this Indenture a valid
agreement of the Company in accordance with the terms of this
Indenture.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of
the PIK Notes by the Holders thereof, it is mutually covenanted
and agreed, for the equal and proportionate benefit of all
Holders of the PIK Notes, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.1. Definitions.
For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires:
(1)
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(a) the terms defined in this Article have the meanings
assigned to them in this Article, and include the plural as well
as the singular;
(b) all other terms used herein which are defined in the
Trust Indenture Act, either directly or by reference therein,
have the meanings assigned to them therein;
(c) all accounting terms not otherwise defined herein have
the meanings assigned to them in accordance with GAAP;
(d) the words "herein," "hereof" and "hereunder" and other
words of similar import refer to this Indenture as a whole and
not to any particular Article, Section or other subdivision;
(e) "or" is not exclusive; and
(f) all references to $ or dollars shall refer to the
lawful currency of the United States of America.
Certain Definitions
"Acquired Indebtedness" means Indebtedness of a Person
(a) existing at the time such Person becomes a Subsidiary or
(b) assumed in connection with the acquisition of assets from
such Person, in each case, other than Indebtedness incurred in
connection with, or in contemplation of, such Person becoming a
Subsidiary or such acquisition. Acquired Indebtedness shall be
deemed to be incurred on the date of the related acquisition of
assets from any Person or the date the acquired Person becomes a
Subsidiary.
"Adjusted Consolidated Interest Expense" means, without
duplication, for any period, the sum of (a) the interest expense
of the Partnership and its Consolidated Subsidiaries for such
period, on a Consolidated basis, including, without limitation,
(i) amortization of debt discount, (ii) the net cost under
interest rate contracts (including amortization of discounts),
(iii) the interest portion of any deferred payment obligation and
(iv) accrued interest plus (b) the interest component of the
Capital Lease obligations paid, accrued and/or scheduled to be
paid, or accrued by the Partnership and its Consolidated
subsidiaries during such period, in each case as determined in
accordance with GAAP consistently applied.
"Adjusted Consolidated Net Income (Loss)" means, for any
period, the Consolidated net income (or loss) of the Partnership
and its Consolidated Subsidiaries for such period as determined
in accordance with GAAP consistently applied, adjusted, to the
extent included in calculating such net income (loss), by
excluding (a) all extraordinary gains or losses (less all fees
and expenses relating thereto), (b) the portion of net income (or
(2)
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loss) of the Partnership and its Consolidated subsidiaries
allocable to minority interests in unconsolidated Persons to the
extent that cash dividends or distributions have not actually
been received by the Partnership or one of its Consolidated
Subsidiaries, (c) net income (or loss) of any Person combined
with the Partnership or any of the Subsidiaries on a "pooling of
interests" basis attributable to any period prior to the date of
combination, (d) any gain or loss, net of taxes, realized upon
the termination of any employee pension benefit plan, (e) net
gains or losses (less all fees and expenses relating thereto) in
respect of dispositions of assets other than in the ordinary
course of business, or (f) the net income of any Subsidiary to
the extent that the declaration of dividends or similar
distributions by that Subsidiary of that income is not at the
time permitted, directly or indirectly, by operation of the terms
of its charter or any agreement, instrument, judgment, decree,
order, statute, rule or governmental regulation applicable to
that Subsidiary or its shareholders.
"Affiliate" means, with respect to any specified Person,
(a) any other Person directly or indirectly controlling or
controlled by or under direct or indirect common control with
such specified Person or (b) any other Person that owns, directly
or indirectly, 5% or more of such Person's Capital Stock or
Equity Interest or any officer or director of any such Person or
other Person or with respect to any natural Person, any person
having a relationship with such Person by blood, marriage or
adoption not more remote than first cousin. For the purposes of
this definition, "control" when used with respect to any
specified Person means the power to direct the management and
policies of such Person directly or indirectly, whether through
ownership of voting securities, by contract or otherwise; and the
terms "controlling" and "controlled" have meanings correlative to
the foregoing.
"Appraised Value" shall have the meaning set forth in
Section 1.1 of the Note Mortgage.
"Average Life to Stated Maturity" means, as of the date of
determination with respect to any Indebtedness, the quotient
obtained by dividing (a) the sum of the products of (i) the
number of years from the date of determination to the date or
dates of each successive scheduled principal payment of such
Indebtedness multiplied by (ii) the amount of each such principal
payment by (b) the sum of all such principal payments.
"Bankruptcy Law" means Title 11, United States Code, as
amended, or any similar United States federal or state law
relating to bankruptcy, insolvency, receivership, winding-up,
liquidation, reorganization or relief of debtors or any amendment
to, succession to or change in any such law.
(3)
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"Board of Directors" means, with respect to the Company, the
board of directors of the Company or, with respect to the
Partnership, the board of partner representatives, or any duly
authorized committee of any such board.
"Board Resolution" means a copy of a resolution certified by
the Secretary or an Assistant Secretary of the Company or the
Partnership, as the case may be, to have been duly adopted by the
Board of Directors and to be in full force and effect on the date
of such certification, and delivered to the Trustee.
"Business Day" means each Monday, Tuesday, Wednesday,
Thursday and Friday which is not a day on which banking
institutions in The City of New York are authorized or obligated
by law or executive order to close.
"Cage Cash" means the sum of $5,000,000 retained for daily
operations of the Casino.
"Capital Lease Obligation" of any Person means any
obligation of such Person and its subsidiaries on a Consolidated
basis under any capital lease of real or personal property which,
in accordance with GAAP, has been recorded as a capitalized lease
obligation.
"Capital Stock" of any Person means any and all shares,
interests, participations or other equivalents (however
designated) of such Person's capital stock.
"Casino Hotel" means the casino and hotel complex currently
known as the "Trump's Castle Casino Resort" in Atlantic City, New
Jersey and ancillary structures, marina, and other facilities and
all furniture, fixtures and equipment at any time contained
therein, in each case owned by or leased to the Partnership.
"CCC" means the New Jersey Casino Control Commission or any
successor entity thereto.
"Certificate of Appraised Value" shall have the meaning set
forth in Section 1.1 of the Note Mortgage.
"Change of Control" means an event as a result of which
(a) the Permitted Holder does not have the right or ability by
voting power, contract or otherwise to elect or designate for
election a majority of the Board of Directors of the Company or
to control the management of the Partnership; or (b) the Company
or the Partnership is liquidated or dissolved or adopts a plan of
liquidation or dissolution; provided, however, a Change of
Control shall not be deemed to occur as a result of one or more
Public Offerings so long as (i) the Permitted Holder continues to
own beneficially 20% or more of the voting equity securities of
the entity which conducted the Public Offering and (ii) no other
(4)
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holder beneficially owns a greater percentage of such voting
securities of such entity than the Permitted Holder.
"Code" means the Internal Revenue Code of 1986, as amended.
"Collateral" means, collectively, the Subordinated
Partnership Note and all other property and assets that are from
time to time subject to the Pledge Agreement.
"Company" means Trump's Castle Funding, Inc., a corporation
incorporated under the laws of the State of New Jersey, and its
successors or assigns.
"Company Request or Company Order" means a written request
or order signed in the name of the Company by any one of its
Chairman of the Board, its Vice Chairman, its President or a Vice
President, and by any one of its Treasurer, an Assistant
Treasurer, its Secretary or an Assistant Secretary, and delivered
to the Trustee.
"Consolidated Fixed Charge Coverage Ratio" means for any
period the ratio of (a) the sum of Adjusted Consolidated Net
Income, Adjusted Consolidated Interest Expense and Consolidated
Income Tax Expense, plus, without duplication, all depreciation,
amortization and all other non-cash charges (excluding any such
non-cash charges constituting an extraordinary item of loss or
any non-cash charge which requires an accrual of or a reserve for
cash charges for any future period) in each case, for such
period, of the Partnership and its Consolidated Subsidiaries on a
Consolidated basis, all determined in accordance with GAAP
consistently applied, to (b) Adjusted Consolidated Interest
Expense for such period.
"Consolidated Income Tax Expense" means for any period the
provision for federal, state, local and foreign income taxes of
the Partnership and its Consolidated Subsidiaries for such period
as determined in accordance with GAAP consistently applied.
"Consolidated Net Worth" of any Person means the
Consolidated stockholders' equity (excluding Redeemable Capital
Stock or Redeemable Equity Interests) of such Person and its
Consolidated subsidiaries, as determined in accordance with GAAP
consistently applied.
"Consolidation" means, with respect to any Person, the
consolidation of the accounts of such Person and each of its
subsidiaries if and to the extent the accounts of such Person and
each of its subsidiaries would normally be consolidated with
those of such Person, all in accordance with GAAP consistently
applied. The term "Consolidated" shall have a similar meaning.
(5)
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"Corporate Trust Office" means the office of the Trustee, or
its agent, at which at any particular time its corporate trust
business shall be administered, which office at the date of
execution of this Indenture is located at 180 East Fifth Street,
St. Paul, Minnesota 55101.
"CRDA" means the Casino Reinvestment Development Authority
or any successor entity thereto.
"Default" means any event which is, or after notice or
passage of time or both would be, an Event of Default.
"EBITDA" means, for the relevant accounting period, an
amount equal to the sum of (i) the net income (or loss) of the
Partnership for such period determined in accordance with
generally accepted accounting principles, consistently applied,
excluding any extraordinary, unusual or non-recurring gains
(including without limitation those gains arising from
dispositions of assets or from the purchase, redemption or
discharge of any indebtedness), and excluding any extraordinary,
unusual or non-recurring losses arising from (A) transactions or
events approved by not less than two of the Noteholder
Representatives (so long as such approval includes an explicit
finding that any such losses arising from such transaction or
event are to be so excluded pursuant to this clause (A)) or (B)
the purchase, redemption or discharge of any indebtedness in
respect of the Mortgage Notes or PIK Notes, plus (ii) all amounts
deducted in computing such net income (or loss) in respect of
interest (including the imputed interest portions of rentals
under Capitalized Leases), depreciation, amortization and taxes
based upon or measured by income, plus (iii) other non-cash
charges arising from market value adjustments and adjustments
pertaining to contributions of deposits in each case in respect
of CRDA Bonds.
"Equity Interest" of any Person means any shares, interests,
participations or other equivalents (however designated) of such
Person in equity.
"Equity Offering" has the meaning specified in Section
11.11.
"Event of Default" has the meaning specified in Article
Five.
"Excess Available Cash" shall be calculated semi-annually on
June 30 and December 31 and means the sum of the Partnership's
cash and cash equivalents as shown on its balance sheet at such
date less the sum of (1) the Partnership's Cage Cash, (2) the
Partnership's working capital reserve of $10 million less the
amount, if any, available to the Partnership under the Working
Capital Facility, (3) the aggregate amount required to meet the
(6)
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cash interest payments due on all Permitted Indebtedness on the
respective next interest payment dates and the sinking fund
payment on the Senior Notes due during the succeeding six month
period, (4) distributions to be made during the succeeding six
month period in respect of taxes as contemplated by clause (c) of
Section 10.9(b)(ix) hereof, and (5) amounts required to meet the
Partnership's Capital Expenditures (as defined in the Partnership
Agreement), CRDA bond payments and other fixed charges during the
succeeding six month period.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"F,F&E Financing Agreement" means an agreement which creates
a Lien upon any after-acquired Tangible Personal Property (as
defined in the Note Mortgage) and/or other items constituting
Operating Assets (as defined in the Note Mortgage), which are
financed, purchased or leased by the Partnership.
"Fair Market Value" means, with respect to any asset or
property, the sale value that would be obtained in an
arm's-length transaction between an informed and willing seller
under no compulsion to sell and an informed and willing buyer
under no compulsion to buy and, with respect to any PIK Notes
redeemed under Section 11.9, means (a) the last sales price
regular way on the last trading day prior to the date of
determination of such value on the largest national securities
exchange (or, if said security is not listed on a national
securities exchange, on the National Market System of the
National Association of Securities Dealers, Inc. Automated
Quotation System ("NASDAQ")) on which such PIK Notes shall have
traded on such trading day, or (b) if no such sales of such PIK
Notes occurred on such trading day, the mean between the "bid"
and "asked" prices on such national securities exchange or as
quoted on the National Market System of NASDAQ, as the case may
be, on such last trading day, or (c) if the PIK Notes are not
listed or quoted on any national securities exchange or the
National Market System of NASDAQ, the average of the closing bid
and asked prices on such day in the over-the-counter market as
reported by NASDAQ or, if bid and asked prices for the PIK Notes
have not been reported through NASDAQ, the average of the bid and
asked prices on such day as furnished by any New York Stock
Exchange member firm regularly making a market in the PIK Notes,
selected for such purpose by the Company, or (d) if none of
clauses (a) through (c) are applicable, the fair market value of
such PIK Notes as of the date of determination as determined in
such manner as shall be satisfactory to the Company, which shall
be entitled to rely for such purpose on the advice of any firm of
investment bankers or securities dealers having familiarity with
the PIK Notes.
(7)
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"Gaming Authority" means the CCC, the NJDGE or any other
governmental agency which regulates gaming in a jurisdiction in
which the Partnership conducts gaming activities.
"Generally Accepted Accounting Principles or GAAP" means
generally accepted accounting principles in the United States,
consistently applied, which are in effect on the date of this
Indenture.
"Guaranteed Debt" of any Person means, without duplication,
all Indebtedness of any other Person referred to in the
definition of Indebtedness contained in this section guaranteed
directly or indirectly in any manner by such Person, or in effect
guaranteed directly or indirectly by such Person through an
agreement (a) to pay or purchase such Indebtedness or to advance
or supply funds for the payment or purchase of such Indebtedness,
(b) to purchase, sell or lease (as lessee or lessor) property, or
to purchase or sell services, primarily for the purpose of
enabling the debtor to make payment of such Indebtedness or to
assure the holder of such Indebtedness against loss, (c) to
supply funds to, or in any other manner invest in, the debtor
(including any agreement to pay for property or services without
requiring that such property be received or such services be
rendered), (d) to maintain working capital or equity capital of
the debtor, or otherwise to maintain the net worth, solvency or
other financial condition of the debtor or (e) otherwise to
assure a creditor against loss; provided that the term
"guarantee" shall not include endorsements for collection or
deposit, in either case in the ordinary course of business;
provided, further, that the obligations of the Partnership
pursuant to the Services Agreement as in effect on the date of
this Indenture shall not be deemed to be Guaranteed Debt of the
Partnership.
"Holder" means a Person in whose name a PIK Note is
registered in the PIK Note Register.
"Indebtedness" means, with respect to any Person, without
duplication, (a) all indebtedness of such Person for borrowed
money or for the deferred purchase price of property or services,
excluding any trade payables and other accrued current
liabilities arising in the ordinary course of business, but
including, without limitation, all obligations, contingent or
otherwise, of such Person in connection with any letters of
credit issued under letter of credit facilities, acceptance
facilities or other similar facilities and in connection with any
agreement to purchase, redeem, exchange, convert or otherwise
acquire for value any Capital Stock or Equity Interest of such
Person, or any warrants, rights or options to acquire such
Capital Stock or Equity Interest, now or hereafter outstanding,
(b) all obligations of such Person evidenced by bonds, notes,
debentures or other similar instruments, (c) every obligation of
(8)
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such Person issued or contracted for as payment in consideration
of the purchase by such Person or an Affiliate of such Person of
the Capital Stock or Equity Interest or substantially all of the
assets of another Person or in consideration for the merger or
consolidation with respect to which such Person or an Affiliate
of such Person was a party, (d) all indebtedness created or
arising under any conditional sale or other title retention
agreement with respect to property acquired by such Person (even
if the rights and remedies of the seller or lender under such
agreement in the event of default are limited to repossession or
sale of such property), but excluding trade payables and other
accrued current liabilities arising in the ordinary course of
business, (e) all obligations under interest rate contracts of
such Person, (f) all Capital Lease Obligations of such Person,
(g) all Indebtedness referred to in clauses (a) through (f) above
of other Persons and all dividends of other Persons, the payment
of which are secured by (or for which the holder of such
Indebtedness has an existing right, contingent or otherwise, to
be secured by) any Lien upon or in property (including, without
limitation, accounts and contract rights) owned by such Person,
even though such Person has not assumed or become liable for the
payment of such Indebtedness, (h) all Guaranteed Debt of such
Person, (i) all Redeemable Capital Stock or Redeemable Equity
Interests valued at the greater of its voluntary or involuntary
maximum fixed repurchase price plus accrued and unpaid dividends,
and (j) any amendment, supplement, modification, deferral,
renewal, extension or refunding of any liability of the types
referred to in clauses (a) through (i) above. For purposes
hereof, the "maximum fixed repurchase price" of any Redeemable
Capital Stock or Redeemable Equity Interest which does not have a
fixed repurchase price shall be calculated in accordance with the
terms of such Redeemable Capital Stock or Redeemable Equity
Interest as if such Redeemable Capital Stock or Redeemable Equity
Interest were purchased on any date on which Indebtedness shall
be required to be determined pursuant to this Indenture, and if
such price is based upon, or measured by, the Fair Market Value
of such Redeemable Capital Stock or Redeemable Equity Interest,
such Fair Market Value to be determined in good faith by the
board of directors of the issuer (or managing general partner of
the issuer) of such Redeemable Capital Stock or Redeemable Equity
Interest.
"Indenture" means this instrument as originally executed and
as it may from time to time be supplemented or amended by one or
more indentures supplemental hereto entered into pursuant to the
applicable provisions hereof.
"Indenture Obligations" means the obligations of the Company
and any other obligor under this Indenture or under the PIK Notes
to pay principal of, premium, if any, and interest when due and
payable, and all other amounts due or to become due under or in
connection with this Indenture, the PIK Notes and the performance
(9)
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of all other obligations to the Trustee and the Holders under
this Indenture, the PIK Notes and the Pledge Agreement, according
to the terms thereof.
"Interest Payment Date" means the Stated Maturity of an
installment of interest on the PIK Notes.
"Investments" means, with respect to any Person, directly or
indirectly, any advance, loan or other extension of credit or
capital contribution to (by means of any transfer of cash or
other property to others or any payment for property or services
for the account or use of others), or any purchase or other
acquisition by such Person of any Capital Stock, Equity Interest,
bonds, notes, debentures or other securities or assets issued or
owned by, any other Person.
"Legal Requirements" means all laws, statutes, codes,, acts,
ordinances, orders, judgments, decrees, injunctions, rules,
regulations, permits, licenses, authorizations, directions and
requirements (including, without limitation, the New Jersey
Casino Control Act, the New Jersey Environment Cleanup
Responsibility Act and the New Jersey Spill Compensation and
Control Act of 1976) of all governments, departments,
commissions, boards, courts, authorities, agencies, officials and
officers, of governments, federal, state and municipal
(including, without limitation, the New Jersey Department of
Environmental Protection and Energy, the Atlantic City Bureau of
Investigations, the NJDGE, and the CCC), foreseen or unforeseen,
ordinary or extraordinary, which now are or at any time hereafter
become applicable to the Casino Hotel or any part thereof, of any
of the adjoining sidewalks, or any use or condition of the Casino
Hotel or any part thereof, including, without limitation, the use
of the Casino Hotel as a gaming or gambling facility.
"Lien" means any mortgage, charge, pledge, lien (statutory
or otherwise), privilege, security interest, hypothecation or
other encumbrance upon or with respect to any property of any
kind, real or personal, movable or immovable, now owned or
hereafter acquired.
"Litigation Warrants" means warrants to be issued by Trump's
Castle Hotel & Casino, Inc. for additional equity securities
representing a 0.5% common equity interest in the Partnership
pursuant to the terms of a settlement agreement arising out of
certain securities litigation.
"Marina Lease" means the lease agreement made September 1,
1990 between the State of New Jersey, as Landlord, and the
Partnership, as tenant, respecting property known as the Senator
Frank S. Farley State Marina, Atlantic City, New Jersey, being
designated as a portion of Bloc B-4, Lot 11 on the tax map of the
(10)
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City of Atlantic City, Atlantic County, New Jersey, together with
all amendments, restatements, extensions and renewals thereof.
"Maturity" when used with respect to any PIK Note means the
date on which the principal of such PIK Note becomes due and
payable as therein provided or as provided in this Indenture,
whether at Stated Maturity, Change of Control Purchase Date, or
the redemption date and whether by declaration of acceleration,
Change of Control Offer, call for redemption or otherwise.
"Midlantic Term Loan" means the secured indebtedness in a
principal amount not to exceed $38,000,000 evidenced by the
Amended and Restated Credit Agreement, dated as of May 29, 1992,
between the Company, the Partnership and Midlantic National Bank,
together with all amendments, restatements, extensions and
renewals thereof.
"Mortgage Debt" means any Indebtedness secured by Liens
(other than involuntary Liens) on any portion of the Casino
Hotel.
"Mortgage Documents" has the meaning specified in Section
1.1 of the Mortgage Note Indenture.
"Mortgage Note Indenture" means that certain Indenture among
the Company, as issuer, First Bank National Association, as
trustee, and the Partnership, as guarantor, dated as of the date
hereof, relating to the Mortgage Notes, as it may from time to
time be supplemented or amended by one or more indentures
supplemental thereto.
"Mortgage Notes" means the 11-3/4% Mortgage Notes due 2003
issued by the Company pursuant to the Mortgage Note Indenture, in
aggregate principal amount not to exceed $242,141,304.
"NASDAQ" is defined under the definition of "Fair Market
Value."
"Net Cash Proceeds" of an issuance means the cash proceeds
of such issuance, net of attorney's fees, accountant's fees,
brokerage, consultant, underwriting and other fees and expenses
actually incurred in connection with such issuance, sale,
conversion or exchange and net of taxes paid or payable as a
result thereof.
"NJDGE" means the New Jersey Division of Gaming Enforcement
or any successor entity thereto.
"Note Mortgage" means the Indenture of Mortgage and Security
Agreement, dated as of the date hereof, between the Company, as
mortgagee, and the Partnership, as mortgagor, securing the
Partnership Note.
(11)
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"Noteholder Representative" shall have the meaning set forth
in the Partnership Agreement.
"Officers' Certificate" means a certificate signed by the
President or a Vice President, and by the Treasurer, Assistant
Treasurer, Secretary or an Assistant Secretary, of the Company or
the Partnership and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who
may be counsel for the Company or the Trustee.
"Outstanding" when used with respect to PIK Notes means, as
of the date of determination, all PIK Notes theretofore
authenticated and delivered under this Indenture, except:
(a) PIK Notes theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(b) PIK Notes, or portions thereof, for whose payment or
redemption money in the necessary amount has been theretofore
deposited with the Trustee or any Paying Agent (other than the
Company) in trust or set aside and segregated in trust by the
Company (if the Company shall act as its own Paying Agent) for
the Holders of such PIK Notes; provided that if such PIK Notes
are to be redeemed, notice of such redemption has been duly given
pursuant to this Indenture or provision therefor satisfactory to
the Trustee has been made; and PIK Notes, except to the extent
provided in Sections 4.2 and 4.3, with respect to which the
Company has effected defeasance or covenant defeasance as
provided in Article Four; and
(c) PIK Notes in exchange for or in lieu of which other PIK
Notes have been authenticated and delivered pursuant to this
Indenture, other than any such PIK Notes in respect of which
there shall have been presented to the Trustee proof satisfactory
to it that such PIK Notes are held by a bona fide purchaser in
whose hands the PIK Notes are valid obligations of the Company;
provided, however, that in determining whether the Holders of the
requisite principal amount of Outstanding PIK Notes have given
any request, demand, authorization, direction, notice, consent or
waiver hereunder, PIK Notes owned by the Company or any other
obligor upon the PIK Notes or any Affiliate of the Company or
such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee
shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only PIK
Notes which the Trustee knows to be so owned shall be so
disregarded. PIK Notes so owned which have been pledged in good
faith may be regarded as Outstanding if the pledgee establishes
to the satisfaction of the Trustee the pledgor's right so to act
(12)
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with respect to such PIK Notes and that the pledgee is not the
Company, the Partnership, or any other obligor upon the PIK Notes
or any Affiliate of the Company, the Partnership, or such other
obligor. Secondary PIK Notes shall be deemed Outstanding
commencing as of the Interest Payment Date with respect to which
they are authenticated and delivered in lieu of cash interest.
"Outstanding Amount" of any Indebtedness at any time means
the principal amount outstanding of such Indebtedness at such
time, unless such Indebtedness was issued at a discount, in which
case the "Outstanding Amount" of such Indebtedness means the
original issue price of such Indebtedness plus the accretion to
such time of the original issue discount, determined in
accordance with Generally Accepted Accounting Principles.
"Pari Passu Indebtedness" means any Indebtedness of the
Partnership that is pari passu in right of payment to the
Subordinated Guarantee.
"Partnership" means Trump's Castle Associates, a New Jersey
general partnership, and any successor Person to Trump's Castle
Associates in accordance with Article Eight hereof.
"Partnership Agreement" means the Partnership's Amended and
Restated Partnership Agreement, dated as of May 29, 1992, as in
effect on the date of this Indenture as it may be amended and
restated by the Second Amended and Restated Partnership Agreement
of the Partnership, in the form filed as an Exhibit to the
registration statement of which the Prospectus is a part, as
amended from time to time in accordance with the terms hereof and
thereof.
"Partnership Note" means the note dated as of the date
hereof in the principal amount of $242,141,304 made by the
Partnership in favor of the Company, securing the Mortgage Notes.
"Paying Agent" means any Person authorized by the Company to
pay the principal, premium, if any, or interest on any PIK Notes
on behalf of the Company.
"Permit" means any license, franchise, authorization,
statement of compliance, certificate of operation, certificate of
occupancy and permit required for the lawful ownership,
occupancy, operation and use of all or a material portion of the
Casino Hotel whether held by the Partnership or any other Person
(which may be temporary or permanent) (including, without
limitation, those required for the use of the Casino Hotel as a
licensed casino facility), in accordance with all applicable
Legal Requirements.
"Permitted Holder" means Donald J. Trump and any corporation
or other entity that is controlled by Donald J. Trump.
(13)
<PAGE>
"Permitted Indebtedness" means the following:
(a) Indebtedness of the Partnership and the Company
pursuant to the Midlantic Term Loan;
(b) Indebtedness of the Company and the Partnership
pursuant to the Senior Note Documents;
(c) Indebtedness of the Partnership pursuant to a Working
Capital Facility;
(d) Indebtedness of the Partnership and the Company
pursuant to this Indenture and the Pledge Agreement;
(e) Indebtedness of the Partnership and the Company
pursuant to the Mortgage Note Indenture and the Mortgage
Documents;
(f) Indebtedness of the Partnership and the Company
outstanding on the date of this Indenture and listed on
Schedule I hereto;
(g) Indebtedness of the Partnership or any Wholly-owned
Subsidiary to any one or the other of them;
(h) Indebtedness of the Partnership or any Subsidiary
represented by F,F&E Financing Agreements, provided, however,
that the aggregate principal amount of Indebtedness permitted by
this clause (h) shall not exceed at any one time outstanding (i)
$2,000,000 or (ii) $25,000,000 following the times at which the
Partnership shall have achieved an EBITDA for any period of four
consecutive quarters in an amount not less than $45,000,000;
(i) Indebtedness in respect of Capital Lease Obligations or
secured purchase money security interests of the Partnership or
any Subsidiary, in either case not created by an F,F&E Financing
Agreement, and the renewal, extension or refunding of such
Indebtedness in an amount not to exceed the amount thereof
remaining unpaid immediately prior to such renewal, extension or
refunding; provided, however, that the aggregate principal amount
of all such Capitalized Lease Obligations permitted by this
clause (h) shall not exceed at any one time outstanding (i)
$10,000,000 or (ii) $15,000,000 following the time at which the
Partnership shall have achieved EBITDA for any period of four
consecutive fiscal quarters in an amount not less than
$60,000,000 and provided, further, that the aggregate principal
amount of all such Indebtedness secured by purchase money
security interests shall not exceed at any one time outstanding
$10,000,000;
(14)
<PAGE>
(j) any renewals, extensions, substitutions, refundings,
refinancings or replacements of any Indebtedness described in
clauses (a) through (i) of this definition of "Permitted
Indebtedness," including any successive renewals, extensions,
substitutions, refundings, refinancings or replacements so long
as the aggregate principal amount of Indebtedness represented
thereby does not exceed the principal amount of such Indebtedness
being renewed, extended, substituted, refunded, refinanced or
replaced (or, if such Indebtedness provides for an amount less
than the principal amount thereof to be due and payable upon a
declaration of acceleration thereof, such lesser amount as of the
date of determination) plus accrued interest thereon, plus, in
the case of refinancings, the amount of any premium or other
payment required to be paid under the terms of the instrument
governing such Indebtedness or the amount of any premium
reasonably determined by the Partnership as necessary to
accomplish such refinancing by means of a tender offer or
privately negotiated purchase and, in each case, actually paid,
plus the amount of expenses of the Partnership incurred in
connection with such refinancing and such renewal, extension,
substitution, refinancing or replacement does not reduce the
Average Life to Stated Maturity or the final Stated Maturity of
such Indebtedness; and
(k) Indebtedness of the Company and the Partnership with
respect to the Company's 9.5% Mortgage Bonds due August 15, 1998
until the defeasance thereof has been consummated in connection
with the recapitalization of the Company of which the issuance of
the PIK Notes is an integral part.
"Permitted Investment" means (a) Investments in any of the
Senior Notes, PIK Notes or the Mortgage Notes; (b) Temporary Cash
Investments; (c) intercompany notes to the extent permitted under
the definition of "Permitted Indebtedness"; and (d) any
Investments in existence on the date of this Indenture and listed
on Schedule II to this Indenture.
"Permitted Leases" means the following:
(i) the Marina Lease;
(ii) any Capital Lease Obligation permitted by clause (i)
of the definition of "Permitted Indebtedness"; and
(iii) Leases other than Capital Lease Obligations and the
Marina Lease; provided, however, that the aggregate fixed rental
payments paid or accrued for any period of four consecutive
fiscal quarters commencing after the date hereof under all such
leases (including payments required to be made by the lessee in
respect of taxes and insurance, whether or not denominated as
rent), shall not exceed for such period (a) $2,000,000 or (b)
$7,500,000 following the time at which the Partnership shall have
(15)
<PAGE>
achieved EBITDA for any period of four consecutive fiscal
quarters in an amount not less than $45,000,000.
"Permitted Liens" means:
(a) any Lien existing as of the date of this Indenture
under the Midlantic Term Loan, the Senior Note Mortgage, the
Senior Guarantee Mortgage, the Mortgage Documents (including,
without limitation, "Permitted Encumbrances" and "Restricted
Encumbrances", both as defined in the Note Mortgage), the Pledge
Agreement, "Permitted Encumbrances" hereafter arising and
permitted under the Mortgage Documents, and any Lien hereafter
arising under a Working Capital Facility;
(b) Capital Lease Obligations and purchase money liens
included in Permitted Indebtedness;
(c) the Lien in favor of the Trustee pursuant to
Section 6.6 of this Indenture, the Lien in favor of the trustee
pursuant to Section 6.6 of the Mortgage Note Indenture and the
Lien in favor of the trustee pursuant to Section 6.6 of the
Senior Note Indenture;
(d) any Lien arising by reason of (i) any judgment, decree
or order of any court, so long as such Lien is adequately bonded
and any appropriate legal proceedings which may have been duly
initiated for the review of such judgment, decree or order shall
not have been finally terminated or the period within which such
proceedings may be initiated shall not have expired;
(ii) security for payment of workmen's compensation or other
insurance; (iii) good faith deposits in connection with tenders,
leases, contracts (other than contracts for the payment of
money); and (iv) deposits to secure public or statutory
obligations, or in lieu of surety or appeal bonds; and
(e) any Lien arising by reason of any renewal, extension,
substitution, refunding, refinancing or replacement of any
Indebtedness permitted by clause (j) of the definition of
Permitted Indebtedness.
"Person" means any individual, corporation, limited or
general partnership, joint venture, association, joint stock
company, trust, unincorporated organization or government or any
agency or political subdivision thereof.
"PIK Note Register" and "PIK Note Registrar" have the
respective meanings specified in Section 3.5.
"PIK Notes" has the meaning specified in the first recital
of this Indenture and shall include any Secondary PIK Notes.
(16)
<PAGE>
"Pledge Agreement" means the Pledge Agreement by the Company
in favor of and for the benefit of the Trustee, as trustee, the
form of which is attached hereto as Exhibit B, providing for the
assignment of the Subordinated Partnership Note to the Trustee by
the Company and the acknowledgement thereof by the Partnership.
"Predecessor PIK Note" of any particular PIK Note means
every previous PIK Note evidencing all or a portion of the same
debt as that evidenced by such particular PIK Note; and, for the
purposes of this definition, any PIK Note authenticated and
delivered under Section 3.6 in exchange for a mutilated PIK Note
or in lieu of a lost, destroyed or stolen PIK Note shall be
deemed to evidence the same debt as the mutilated, lost,
destroyed or stolen PIK Note.
"Preferred Stock" means, with respect to any Person, any and
all shares, interests, participations or other equivalents
(however designated) of such Person's preferred or preference
stock whether now outstanding, or issued after the date of this
Indenture, and including, without limitation, all classes and
series of preferred or preference stock.
"Prospectus" means the Prospectus, dated November 22, 1993,
relating to the PIK Notes and the Subordinated Guarantee in the
form in which it was first filed with the SEC pursuant to Rule
424(b) under the Securities Act of 1933, as amended, or, if no
such filing is required, in the form included in the Registration
Statement on Form S-4 filed with the SEC with respect to the PIK
Notes and the Subordinated Guarantee upon the date of its
effectiveness.
"Public Offering" shall mean a registered public offering of
a direct or indirect equity interest in the Partnership.
"Qualified Capital Stock" of any Person means any and all
Capital Stock of such Person other than Redeemable Capital Stock.
"Qualified Equity Interest" of any Person means any Equity
Interests of such Person other than Redeemable Equity Interests.
"Redeemable Capital Stock" means any Capital Stock that,
either by its terms, by the terms of any security into which it
is convertible or exchangeable or otherwise, is or upon the
happening of an event (other than the disqualification of the
holder thereof by the CCC) or passage of time would be, required
to be redeemed prior to any Stated Maturity of the principal of
the PIK Notes or is redeemable at the option of the holder
thereof at any time prior to any such Stated Maturity, or is
convertible into or exchangeable for debt securities at any time
prior to any such Stated Maturity at the option of the holder
thereof.
(17)
<PAGE>
"Redeemable Equity Interest" means any Equity Interest that,
either by its terms, by the terms of any security into which it
is convertible or exchangeable or otherwise, is or upon the
happening of an event (other than the disqualification of the
holder thereof by the CCC) or passage of time would be, required
to be redeemed prior to any Stated Maturity of the principal of
the PIK Notes or is redeemable at the option of the holder
thereof at any time prior to any such Stated Maturity, or is
convertible into or exchangeable for debt securities at any time
prior to any such Stated Maturity at the option of the holder
thereof.
"Redemption Date" when used with respect to any PIK Note to
be redeemed means the date fixed for such redemption by or
pursuant to this Indenture.
"Redemption Price" when used with respect to any PIK Note to
be redeemed means the price at which it is to be redeemed
pursuant to this Indenture.
"Regular Record Date" for the interest payable on any
Interest Payment Date means May 1 or November 1 (whether or not a
Business Day) next preceding such Interest Payment Date.
"Responsible Officer" when used with respect to the Trustee
means any officer assigned to the Corporate Trust Office or any
agent of the Trustee appointed hereunder, including any vice
president, assistant vice president, assistant secretary, or any
other officer or assistant officer of the Trustee or the agent of
the Trustee appointed hereunder to whom any corporate trust
matter is referred because of his or her knowledge of and
familiarity with the particular subject.
"SEC" means the Securities and Exchange Commission, as from
time to time constituted, created under the Exchange Act, or if
at any time after the execution of this Indenture such SEC is not
existing and performing the duties now assigned to it under the
Trust Indenture Act, then the body performing such duties at such
time.
"Secondary PIK Notes" has the meaning specified in Section
3.7.
"Securities Act" means the Securities Act of 1933, as
amended.
"Senior Assignment Agreement" means the Senior Assignment
Agreement dated as of even date herewith between the Company and
the trustee under the Senior Note Indenture, providing for the
assignment of the Senior Partnership Note and the Senior Note
Mortgage to said trustee, and acknowledgement thereof by the
Partnership.
(18)
<PAGE>
"Senior Guarantee Mortgage" means the Indenture of Mortgage
and Security Agreement, dated as of the date hereof, between the
trustee of the Senior Note Indenture, as mortgagee, and the
Partnership, as mortgagor, securing the Senior Guarantee (set
forth in the Senior Note Indenture).
"Senior Indebtedness" means (a) the Midlantic Term Loan;
(b) Indebtedness evidenced by the Senior Note Documents; (c)
Indebtedness evidenced by the Working Capital Facility, if
obtained; (d) Indebtedness evidenced by the Mortgage Documents;
and any renewals, extensions, substitutions, refundings,
refinancings or replacements thereof.
"Senior Note Documents" means the Senior Note Indenture, the
Senior Partnership Note, the Senior Guarantee, the Senior Note
Mortgage, the Senior Assignment Agreement, the Senior Guarantee
Mortgage and any other security document executed and delivered
pursuant to or in connection with the foregoing, as each may be
amended, renewed, extended, substituted, refinanced, restructured
or otherwise modified.
"Senior Note Indenture" means that certain indenture, dated
of even date herewith, among the Company, as issuer, the
Partnership, as guarantor, and First Bank National Association,
as trustee, relating to the Company's Senior Notes, as it may
from time to time be supplemented or amended by one or more
indentures supplemental thereto.
"Senior Note Mortgage" means the Indenture of Mortgage and
Security Agreement, dated as of the date hereof, between the
Company, as mortgagee, and the Partnership, as mortgagor,
securing the Senior Partnership Note.
"Senior Notes" means the Partnership's 11 1/2% Senior
Secured Notes due 2000.
"Senior Partnership Note" means the Note dated as of the
date hereof in the principal amount of $27,000,000 made by the
Partnership in favor of the Company, evidencing the proceeds of
the Senior Notes, and pledged to the Trustee.
"Services Agreement" means that certain services agreement,
dated of even date herewith, between the Partnership and TC/GP,
Inc. relating to the provision of advertising and other
consulting services to be provided to the Partnership.
"Services Fee" means, for any period, the amount of the fee
payable by the Partnership under the Services Agreement for such
period.
(19)
<PAGE>
"Special Record Date" for the payment of any Defaulted
Interest means a date fixed by the Trustee pursuant to Section
3.7.
"Stated Maturity" when used with respect to any Indebtedness
or any installment of interest thereon means the dates specified
in such Indebtedness as the fixed date on which the principal of
such Indebtedness or such installment of interest is due and
payable.
"Subordinated Guarantee" means the subordinated guarantee by
the Partnership of the Company's Indenture Obligations pursuant
to the subordinated guarantee included in this Indenture.
"Subordinated Indebtedness" means indebtedness that is
subordinated in right of payment to the Subordinated Guarantee.
"Subordinated Partnership Note" means the Subordinated
Partnership Note dated as of the date hereof in the principal
amount of up to $50,499,476 made by the Partnership in favor of
the Company, a copy of which is attached as Exhibit A.
"Subsidiary" means any Person a majority of the equity
ownership or the Voting Stock of which is at the time owned,
directly or indirectly, by the Partnership or by one or more
other Subsidiaries, or by the Partnership and one or more other
Subsidiaries.
"Temporary Cash Investments" means (a) any evidence of
Indebtedness, maturing not more than one year after the date of
acquisition, issued by the United States of America, or an
instrumentality or agency thereof and guaranteed fully as to
principal, premium, if any, and interest by the United States of
America, (b) any certificate of deposit, maturing not more than
one year after the date of acquisition, issued by, or time
deposit of, a commercial banking institution that is a member of
the Federal Reserve System and that has combined capital and
surplus and undivided profits of not less than $300,000,000,
whose debt has a rating, at the time as of which any investment
therein is made, of "P-l" (or higher) according to Moody's
Investors Service, Inc. or any successor rating agency, or "A-1"
(or higher) according to Standard & Poor's Corporation or any
successor rating agency, (c) commercial paper, maturing not more
than one year after the date of acquisition, issued by a
corporation (other than an Affiliate or subsidiary of the
Company) organized and existing under the laws of the United
States of America with a rating, at the time as of which any
investment therein is made, of "P-l" (or higher) according to
Moody's Investors Service, Inc. or any successor rating agency,
or "A-1" (or higher) according to Standard & Poor's Corporation
or any successor rating agency, and (d) any money market deposit
(20)
<PAGE>
accounts issued or offered by a domestic commercial bank having
capital and surplus in excess of $300,000,000.
"Total Taking or Casualty" has the meaning specified in
Section 1.1 of the Mortgage Note Indenture.
"Trump's Priority Interest" means, at any date, an amount
equal to $15.0 million, less certain cash distributions made
thereon pursuant to the Partnership Agreement.
"Trust Indenture Act" means the Trust Indenture Act of 1939,
as amended.
"Trustee" means the Person named as the "Trustee" in the
first paragraph of this instrument, until a successor trustee
shall have become such pursuant to the applicable provisions of
this Indenture, and thereafter "Trustee" shall mean such
successor trustee.
"Voting Stock" means stock of the class or classes pursuant
to which the holders thereof have the general voting power under
ordinary circumstances to elect at least a majority of the board
of directors, managers or trustees of a corporation (irrespective
of whether or not at the time stock of any other class or classes
shall have or might have voting power by reason of the happening
of any contingency).
"Wholly-owned Subsidiary" means a Subsidiary all the Capital
Stock of which is owned by the Partnership or another Wholly-
owned Subsidiary.
"Working Capital Facility" means one or more lending
agreements between the Partnership and responsible financing
sources, pursuant to which the Partnership may incur Indebtedness
to meet its working capital requirements in an aggregate
principal amount at any one time outstanding not to exceed
$10,000,000.
Section 1.2. Other Definitions.
Defined in
Term Section
"Act" 1.5
"Change of Control Offer" 10.13
"Change of Control Purchase Date" 10.13
"Change of Control Purchase Price" 10.13
"covenant defeasance" 4.3
"Defaulted Interest" 3.7
"defeasance" 4.2
"Defeased PIK Notes" 4.1
"Equity Offering" 11.11
(21)
<PAGE>
"Fractional Secondary PIK Note" 3.7
"incorporated provision" 1.8
"Required Filing Dates" 10.18
"Restricted Payments" 10.9
"Secondary PIK Notes" 3.7
"Surviving Entity" 8.1
"U.S. Government Obligations" 4.4
Section 1.3. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee
to take any action under any provision of this Indenture, the
Company and any other obligor on the PIK Notes shall furnish to
the Trustee an Officers' Certificate stating that all conditions
precedent, if any, provided for in this Indenture (including any
covenant compliance with which constitutes a condition precedent)
relating to the proposed action have been complied with, and an
Opinion of Counsel to the effect that in the opinion of such
counsel all such conditions precedent, if any, have been complied
with, except that, in the case of any such application or request
as to which the furnishing of any certificates and/or opinions is
specifically required by any provision of this Indenture relating
to such particular application or request, no additional
certificate or opinion need be furnished.
Every Officers' Certificate or Opinion of Counsel with
respect to compliance with a condition or covenant provided for in
this Indenture shall include:
(a) a statement to the effect that each individual or firm
signing such certificate or opinion has read such covenant or
condition and the definitions herein relating thereto;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(c) a statement to the effect that, in the opinion of each
such individual or firm, he or it has made such examination or
investigation as is necessary to enable him or it to express an
informed opinion as to whether or not such covenant or condition
has been complied with; and
(d) a statement as to whether, in the opinion of each such
individual or such firm, such condition or covenant has been
complied with.
Section 1.4. Form of Documents Delivered to Trustee.
In any case where several matters are required to be
certified by, or covered by an opinion of, any specified Person,
it is not necessary that all such matters be certified by, or
(22)
<PAGE>
covered by the opinion of, only one such Person, or that they be
so certified or covered by only one document, but one such Person
may certify or give an opinion with respect to some matters and
one or more other such Persons as to other matters, and any such
Person may certify or give an opinion as to such matters in one or
several documents.
Any certificate or opinion of an officer of the Company or
any other obligor of the PIK Notes may be based, insofar as it
relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the
exercise of reasonable care should know, that the certificate or
opinion or representations with respect to the matters upon which
his certificate or opinion is based are erroneous. Any
certificate or opinion of such an officer or of counsel may be
based, insofar as it relates to factual matters, upon a
certificate or opinion of, or representations by, an officer or
officers of the Company or such obligor of the PIK Notes with
respect to such factual matters and which contains a statement to
the effect that the information with respect to such factual
matters is in the possession of the Company or such obligor of the
PIK Notes, unless such officer or counsel knows, or in the
exercise of reasonable care should know, that the certificate or
opinion or representations with respect to such matters are
erroneous. Opinions of Counsel required to be delivered to the
Trustee may have qualifications customary for opinions of the type
required and counsel delivering such Opinions of Counsel may rely
on certificates of the Company or government or other officials
customary for opinions of the type required, including
certificates certifying as to matters of fact, including
assertions as to compliance with various financial covenants.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates,
statements, opinions or other instruments under this Indenture,
they may, but need not, be consolidated and form one instrument.
Section 1.5. Acts of Holders.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be
given or taken by Holders may be embodied in and evidenced by one
or more instruments of substantially similar tenor signed by such
Holders in person or by an agent duly appointed in writing; and,
except as herein otherwise expressly provided, such action shall
become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the
Company. Such instrument or instruments (and the action embodied
therein and evidenced thereby) are herein sometimes referred to as
the "Act" of the Holders signing such instrument or instruments.
Proof of execution of any such instrument or of a writing
appointing any such agent shall be sufficient for any purpose of
(23)
<PAGE>
this Indenture and conclusive in favor of the Trustee and the
Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved in any reasonable manner
which the Trustee deems sufficient.
(c) The ownership of the PIK Notes shall be proved by the
PIK Notes Register.
(d) Any request, demand, authorization, direction, notice,
consent, waiver or other action by the Holder of any PIK Note
shall bind every future Holder of the PIK Notes or the Holder of
every security issued upon the transfer thereof or in exchange
therefor or in lieu thereof, in respect of anything done, suffered
or omitted to be done by the Trustee, any Paying Agent or the
Company in reliance thereon, whether or not notation of such
action is made upon such PIK Note.
Section 1.6. Notices, etc., to Trustee, the Company, the CCC
and the NJDGE.
Any request, demand, authorization, direction, notice,
consent, waiver or Act of the Holders or other document provided
or permitted by this Indenture to be made upon, given or furnished
to, or filed with:
(a) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if made, given, furnished or filed, in
writing, to or with the Trustee at 180 East Fifth Street, St.
Paul, Minnesota 55101, Attention: Corporate Trust Department, or
at any other address previously furnished in writing to the
Holders or the Company by the Trustee;
(b) the Company shall be sufficient for every purpose
(except as provided in Section 5.1(c) hereunder) if in writing and
mailed, first-class postage prepaid or delivered by recognized
overnight courier, to the Company addressed to it at Brigantine
Boulevard and Huron Avenue, Atlantic City, New Jersey 08401,
Attention: Chief Financial Officer, or at any other address
previously furnished in writing to the Trustee by the Company;
(c) the CCC shall be sufficient for every purpose hereunder
(unless otherwise herein expressly provided) if made, given,
furnished or filed, in writing, to or with the CCC at Tennessee
Avenue and The Boardwalk, Arcade Building, Atlantic City, New
Jersey 08401; or
(d) the NJDGE shall be sufficient for every purpose
(24)
<PAGE>
hereunder (unless otherwise herein expressly provided) if made,
given, furnished or filed, in writing or with the NJDGE at Hughes
Justice Complex, CN-047, Trenton, New Jersey 08625.
Section 1.7. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any
event, such notice shall be sufficiently given (unless otherwise
herein expressly provided) if in writing and mailed, first-class
postage prepaid, to each Holder affected by such event, at his
address as it appears in the PIK Note Register, not later than the
latest date, and not earlier than the earliest date, prescribed
for the giving of such notice. In any case where notice to
Holders is given by mail, neither the failure to mail such notice,
nor any defect in any notice so mailed, to any particular Holder
shall affect the sufficiency of such notice with respect to other
Holders. Any notice when mailed to a Holder in the aforesaid
manner shall be conclusively deemed to have been received by such
Holder whether or not actually received by such Holder. Where
this Indenture provides for notice in any manner, such notice may
be waived in writing by the Person entitled to receive such
notice, either before or after the event, and such waiver shall be
the equivalent of such notice. Waivers of notice by Holders shall
be filed with the Trustee, but such filing shall not be a
condition precedent to the validity of any action taken in
reliance upon such waiver.
In case by reason of the suspension of regular mail service
or by reason of any other cause, it shall be impracticable to mail
notice of any event as required by any provision of this
Indenture, then any method of giving such notice as shall be
reasonably satisfactory to the Trustee shall be deemed to be a
sufficient giving of such notice.
Section 1.8. Conflict with Trust Indenture Act.
If and to the extent that any provision of this Indenture
limits, qualifies or conflicts with the duties imposed by Sections
3.10 to 3.18, inclusive, of the Trust Indenture Act, or conflicts
with any provision (an "incorporated provision") required by or
deemed to be included in this Indenture by operation of such
Sections of the Trust Indenture Act, such imposed duties or
incorporated provision shall control. If any provision of this
Indenture modifies or excludes any provision of the Trust
Indenture Act that may be so modified or excluded, the latter
provision shall be deemed to apply to this Indenture as so
modified or excluded, as the case may be.
(25)
<PAGE>
Section 1.9. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of
Contents are for convenience only and shall not affect the
construction hereof.
Section 1.10. Successors and Assigns.
All covenants and agreements in this Indenture by the Company
shall bind its successors and assigns, whether so expressed or
not.
Section 1.11. Separability Clause.
In case any provision in this Indenture or in the PIK Notes
shall be invalid, illegal or unenforceable, the validity, legality
and enforceability of the remaining provisions shall not in any
way be affected or impaired thereby.
Section 1.12. Benefits of Indenture.
Nothing in this Indenture or in the PIK Notes, express or
implied, shall give to any Person (other than the parties hereto
and their successors hereunder, any Paying Agent and the Holders)
any benefit or any legal or equitable right, remedy or claim under
this Indenture.
Section 1.13. GOVERNING LAW.
THIS INDENTURE AND THE PIK NOTES SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK
(WITHOUT GIVING EFFECT TO THE CONFLICT OF LAWS PRINCIPLES
THEREOF).
Section 1.14. Casino Control Act.
Each of the provisions of this Indenture is subject to and
shall be enforced in compliance with the provisions of the New
Jersey Casino Control Act, unless such provisions are in conflict
with the Trust Indenture Act in which case the Trust Indenture Act
shall control.
Section 1.15. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date
or Stated Maturity of any PIK Note shall not be a Business Day,
then (notwithstanding any other provision of this Indenture or of
the PIK Notes) payment of interest or principal or, premium, if
any, need not be made on such date, but may be made on the next
succeeding Business Day with the same force and effect as if made
on the Interest Payment Date or Redemption Date, or at the Stated
Maturity and no interest shall accrue with respect to such payment
(26)
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for the period from and after such Interest Payment Date,
Redemption Date or Stated Maturity, as the case may be, to the
next succeeding Business Day.
Section 1.16. Schedules.
All schedules attached hereto are by this reference made a
part hereof with the same effect as if herein set forth in full.
Section 1.17. Counterparts.
This Indenture may be executed in any number of counterparts,
each of which shall be original; but such counterparts shall
together constitute but one and the same instrument.
ARTICLE TWO
FORM OF PIK NOTES
Section 2.1. Forms Generally.
The PIK Notes, including Secondary PIK Notes, and the
Trustee's certificate of authentication shall be in substantially
the forms set forth in this Article, with such appropriate
insertions, omissions, substitutions and other variations as are
required or permitted by this Indenture and may have such letters,
numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with the
rules of any securities exchange, any organizational document or
governing instrument or any applicable law, including the federal
securities laws, or as may, consistently herewith, be determined
by the officers executing such PIK Notes, as evidenced by their
execution of the PIK Notes. Any portion of the text of any PIK
Note may be set forth on the reverse thereof, with an appropriate
reference thereto on the face of the PIK Notes.
The definitive PIK Notes shall be printed, lithographed or
engraved or produced by any combination of these methods or may be
produced in any other manner permitted by the rules of any
securities exchange on which the PIK Notes may be listed, all as
determined by the officers executing such securities, as evidenced
by their execution of such PIK Notes.
Section 2.2. Form of Face of the PIK Notes.
The form of the face of the PIK Notes shall be substantially
as follows:
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TRUMP'S CASTLE FUNDING, INC.
_________________________
INCREASING RATE SUBORDINATED PAY-IN-KIND NOTE DUE 2005
No.________ $_________________
TRUMP'S CASTLE FUNDING, INC., a New Jersey corporation
(herein called "the Company," which term includes any successor
Person under the Indenture hereinafter referred to),
for value received, hereby promises to pay to ________________ or
registered assigns, the principal sum of ________________________
United States dollars on November 15, 2005, at the office or
agency of the Company referred to below, and to pay interest
thereon from December 28, 1993 or from the most recent Interest
Payment Date to which interest has been paid or duly provided for,
semiannually on May 15 and November 15 in each year, commencing
May 15, 1994, at the rate of 7% per annum through September 30,
1994 and thereafter at the rate of 13-7/8% per annum in cash in
United States dollars until the principal hereof is paid or duly
provided for; provided that on or prior to November 15, 2003, the
Company, at its option, may elect, by giving the Holder of this
PIK Note and the Trustee notice of such election not less than 5
days or more than 45 days prior to the record date for the related
Interest Payment Date, to pay such interest through the issuance
of additional PIK Notes ("Secondary PIK Notes") in an aggregate
principal amount equal to the amount of interest (rounded to the
nearest whole cent) that would be payable with respect to this PIK
Note if such interest were paid in cash; provided, further, that
interest payable on any date on or after the Maturity of any PIK
Note shall be payable solely in cash.
On each such Interest Payment Date when the Company elects to
issue Secondary PIK Notes, the Trustee shall, upon the Company's
Order, authenticate and deliver Secondary PIK Notes for original
issuance to the Holder of this PIK Note on the relevant record
date, as shown by the records of the PIK Note Register, in the
aggregate principal amount required to pay such interest; provided,
however, that in lieu of the issuance of any Secondary PIK Note as
set forth above the principal amount of which would be less than $1
("Fractional Secondary PIK Note"), the Company shall, in its sole
discretion, either (1) issue a Secondary PIK Note for such
Fractional Secondary PIK Notes or (2) pay (on the Interest Payment
Date) each such Holder, with respect to any Fractional Secondary
PIK Note that such Holder would otherwise be entitled to receive,
an amount in cash equal to such Fractional Secondary PIK Note.
Each issuance of Secondary PIK Notes shall be made as nearly as
possible pro rata with respect to Outstanding PIK Notes. Any
Secondary PIK Notes so issued shall be dated the applicable
Interest Payment Date, shall bear interest from and after such
(28)
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date, shall mature on November 15, 2005 and shall be governed by,
and subject to the terms, provisions and conditions of, such
Indenture and shall have the same rights and benefits as this PIK
Note.
The interest so payable, and punctually paid or duly provided
for, on any Interest Payment Date will, as provided in such
Indenture, be paid to the Person in whose name this PIK Note (or
one or more Predecessor PIK Notes) is registered at the close of
business on the Regular Record Date for such interest, which shall
be May 1 or November 1 (whether or not a Business Day), as the
case may be, next preceding such Interest Payment Date. Any such
interest not so paid, or duly provided for, and interest on such
defaulted interest at the interest rate borne by the PIK Notes, to
the extent lawful, shall forthwith cease to be payable to the
Holder on such Regular Record Date, and may be paid to the Person
in whose name this PIK Note (or one or more Predecessor PIK Notes)
is registered at the close of business on a Special Record Date
for the payment of such defaulted interest to be fixed by the
Trustee, notice whereof shall be given to Holders of PIK Notes not
less than ten days prior to such Special Record Date, or may be
paid at any time in any other lawful manner not inconsistent with
the requirements of any securities exchange on which the PIK Notes
may be listed, and upon such notice as may be required by such
exchange, all as more fully provided in said Indenture.
Payment of the principal of, premium, if any, and interest on
this PIK Note will be made at the office or agency of the Company
maintained for that purpose in The City of New York, or at such
other office or agency of the Company as may be maintained for
such purpose, in such coin or currency of the United States of
America as at the time of payment is legal tender for payment of
public and private debts; provided, however, that payment of
interest may be made at the option of the Company by check (or
delivery of Secondary PIK Notes, if applicable) mailed to the
address of the Person entitled thereto as such address shall
appear on the PIK Notes Register. Interest shall be computed on
the basis of a 360-day year of twelve 30-day months.
Reference is hereby made to the further provisions of this
PIK Note set forth on the reverse hereof, which further provisions
shall for all purposes have the same effect as if set forth at
this place.
Unless the certificate of authentication hereon has been duly
executed by the Trustee or by the authenticating agent appointed
as provided in the Indenture by manual signature this PIK Note
shall not be entitled to any benefit under the Indenture, or be
valid or obligatory for any purpose.
(29)
<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument to
be duly executed by the manual or facsimile signature of its duly
authorized officers and the corporate seal to be affixed or
reproduced hereon.
Dated: ____________________ TRUMP'S CASTLE FUNDING, INC.
By_________________________
Name:
Attest: Title:
[SEAL]
_________________________
Section 2.3. Form of Reverse of PIK Notes.
The form of the reverse of the PIK Notes shall be
substantially as follows:
This PIK Note is one of a duly authorized issue of PIK Notes
of the Company designated as its Increasing Rate Subordinated
Pay-in-Kind Notes due 2005 (herein called the "PIK Notes"),
limited (except as otherwise provided in the Indenture referred to
below) in aggregate principal amount to $____________ plus the
aggregate outstanding principal amount of Secondary PIK Notes,
which may be issued under an indenture (herein called the
"Indenture") dated as of December 28, 1993, between the Company,
as issuer, the Partnership, as guarantor, and First Bank National
Association, a national banking association, as trustee (herein
called the "Trustee," which term includes any successor trustee
under the Indenture), to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of
the respective rights, limitations of rights, duties, obligations
and immunities thereunder of the Company, the Trustee and other
obligors thereunder and the Holders of the PIK Notes, and of the
terms upon which the PIK Notes are, and are to be, authenticated
and delivered.
If the Company is served with notice of the disqualification
of any Holder under N.J.S.A. ss 5:12-105(d) by the CCC, such Holder
will be prohibited under N.J.S.A. ss 5:12-105(e) from (a) receiving
interest on the PIK Notes held by such Holder, (b) exercising
directly or through any trustee or nominee, any right conferred on
such PIK Notes and (c) receiving any remuneration in any form from
any company licensed by the CCC (including the Company and the
Trustee) for services rendered or otherwise.
The Indenture contains provisions for defeasance at any time
of (a) the entire indebtedness on this PIK Note and (b) certain
restrictive covenants and related Defaults and Events of Default,
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in each case upon compliance with certain conditions set forth
therein.
The PIK Notes are subject to redemption, in whole or in part,
at any time, upon not less than 30 nor more than 60 days' prior
notice by first-class mail, at the election of the Company, in
amounts of $1 or an integral multiple thereof at 100% of principal
amount, together with accrued and unpaid interest, if any, through
the Redemption Date, all as provided in the Indenture. If less
than all of the PIK Notes are to be redeemed, the Trustee shall
select the PIK Notes or portions thereof to be redeemed pro rata
or by lot.
In the event of a Total Taking or Casualty, the Company or
the Partnership shall, subject to the right of the holders of
Senior Indebtedness, within 60 days after receipt of any
condemnation or insurance proceeds but within one year after the
occurrence of such Total Taking or Casualty, redeem the PIK Notes
at 100% of the principal amount thereof, in each case, together
with accrued and unpaid interest through the Redemption Date, all
as provided in the Indenture.
In the event of a sale of any direct or indirect Equity
Interests in the Partnership (an "Equity Offering"), the Company
and the Partnership shall use 35% of the net proceeds of the
Equity Offering within 30 days of the receipt of the proceeds
thereof to redeem PIK Notes, at 100% of the principal amount
thereof, together with accrued and unpaid interest through the
redemption date all as provided in the Indenture.
The PIK Notes are not entitled to the benefit of any sinking
fund.
Notwithstanding the foregoing, each Holder by accepting a PIK
Note agrees that if the CCC does not waive the qualification
requirement as to the Holder (whether the record owner or
beneficial owner) of this PIK Note and requires that the Holder be
qualified under the New Jersey Casino Control Act, then, in such
event, the Holder must qualify under such Act. If the Holder does
not so qualify, the Holder must dispose of its interest in this
PIK Note, within 30 days (or within such earlier date as the CCC
may require) after the Company's receipt of notice of such
finding, or the Company may redeem this PIK Note at the lower of
the Outstanding Amount and the Fair Market Value of this PIK Note,
without premium, all as provided in the Indenture.
In the case of any redemption of PIK Notes, interest
installments whose Stated Maturity is on or prior to the
Redemption Date will be payable to the Holders of such PIK Notes,
or one or more Predecessor PIK Notes, of record at the close of
business on the relevant Record Date referred to on the face
hereof. PIK Notes (or portions thereof) for whose redemption and
(31)
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payment provision is made in accordance with the Indenture shall
cease to bear interest from and after the date fixed for
redemption.
In the event of redemption of this PIK Note in part only, a
new PIK Note or PIK Notes for the unredeemed portion hereof shall
be issued in the name of the Holder hereof upon the cancellation
hereof.
If an Event of Default shall occur and be continuing, there
may be declared due and payable in the manner and with the effect
provided in the Indenture the principal of this PIK Note, plus all
accrued and unpaid interest to and including the date the PIK
Notes are paid.
In order to secure the due and punctual payment of the
principal of, premium, if any, and interest on the PIK Notes and
all other amounts payable by the Company under the Indenture and
the PIK Notes when and as the same shall be due and payable,
whether at maturity or otherwise, according to the terms of the
PIK Notes and the Indenture, the Company has granted to the
Holders of the PIK Notes a security interest in the Collateral
pursuant to the Pledge Agreement.
If a Change of Control occurs at any time, each Holder shall
have the right to require that the Company repurchase such
Holder's PIK Notes in whole or in part in integral multiples of $1
(and any Secondary PIK Notes in face amount less than $1) at a
purchase price in cash in an amount equal to 101% of the principal
amount thereof, plus accrued and unpaid interest (including any
Defaulted Interest), if any, to the date of purchase.
The Indenture permits, with certain exceptions as therein
provided, amendments and modifications of the rights and
obligations of the Company and the rights of the Holders under the
Indenture and the Pledge Agreement at any time by the Company and
the Trustee with the consent of the Holders of not less than a
majority in aggregate principal amount of the PIK Notes at the
time outstanding. The Indenture also contains provisions
permitting the Holders of specified percentages in aggregate
principal amount of the PIK Notes at the time Outstanding, on
behalf of the Holders of all the PIK Notes, to waive compliance by
the Company with certain provisions of the Indenture and certain
past Defaults under the Indenture and their consequences. Any
such consent or waiver by or on behalf of the Holder of this PIK
Note shall be conclusive and binding upon such Holder and upon all
future Holders of this PIK Note and of any PIK Note issued upon
the registration of transfer hereof or in exchange hereof or in
lieu hereof whether or not notation of such consent or waiver is
made upon this PIK Note.
(32)
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No reference herein to the Indenture and no provision of this
PIK Note or of the Indenture shall alter or impair the obligation
of the Company or any other obligor under the PIK Notes (in the
event any such obligor is obligated to make payments in respect of
the PIK Notes), which is absolute and unconditional, to pay the
principal of, premium, if any, and interest on this PIK Note at
the times, place, and rate, and in the coin or currency, herein
prescribed.
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this PIK Note is
registrable on the PIK Note Register of the Company, upon
surrender of this PIK Note for registration of transfer at the
office or agency of the Company maintained for such purpose in The
City of New York or at such other office or agency of the Company
as may be maintained for such purpose, duly endorsed by, or
accompanied by a written instrument of transfer in form
satisfactory to the Company and the PIK Note Registrar duly
executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new PIK Notes, of authorized
denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees.
The PIK Notes are issuable only in registered form without
coupons in denominations of $1 and any integral multiple thereof;
provided that Secondary PIK Notes may be issued in fractional
denominations as provided in the Indenture. As provided in the
Indenture and subject to certain limitations therein set forth,
such PIK Notes are exchangeable for a like aggregate principal
amount of PIK Notes of a different authorized denomination, as
requested by the Holder surrendering the same.
No service charge shall be made for any registration of
transfer or exchange or redemption of PIK Notes, but the Company
may require payment of a sum sufficient to cover any tax or other
governmental charge payable in connection therewith.
Prior to and at the time of due presentment of this security
for registration of transfer, the Company, the Trustee and any
agent of the Company or the Trustee may treat the Person in whose
name this PIK Note is registered as the owner hereof for all
purposes, whether or not this PIK Note is overdue, and neither the
Company, the Trustee nor any agent shall be affected by notice to
the contrary.
Notwithstanding anything herein or in any other agreement,
document, certificate, instrument, statement or omission referred
to below to the contrary, the Company and the Partnership are
liable hereunder only to the extent of the assets of the Company
and the Partnership and no other person or entity, including, but
not limited to, any incorporator, officer, committee or committee
member of the Company, or any Affiliate or controlling Person or
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entity of any of the foregoing, or any agent, employee or lender
of any of the foregoing, or any successor, personal
representative, heir or assign of any of the foregoing, in each
case past, present, or as they may exist in the future, shall be
liable in any respect (including without limitation the breach of
any representation, warranty, covenant, agreement, condition or
indemnification or contribution undertaking contained herein or
therein) under, in connection with, arising out of, or relating to
this PIK Note, the Indenture, the Pledge Agreement or any other
agreement, document, certificate, instrument or statement (oral or
written) related to, executed or to be executed, delivered or to
be delivered, or made or to be made, or any omission made or to be
made, in connection with any of the foregoing or any of the
transactions contemplated in any such agreement, document,
certificate, instrument or statement.
Upon any consolidation or merger, or any sale, assignment,
conveyance, transfer or disposition of all or substantially all of
the properties and assets of the Company in accordance with the
Indenture, subject to the terms and conditions of the Indenture,
the successor Person to such transaction shall become the obligor
on this PIK Note and the Pledge Agreement and the Company shall be
discharged from all obligations and covenants under this PIK Note,
the Pledge Agreement and the Indenture.
All terms used in this PIK Note which are defined in the
Indenture and not otherwise defined herein shall have the meanings
assigned to them in the Indenture.
Section 2.4. Form of Trustee's Certificate of
Authentication.
The form of the Trustee's Certificate of Authentication shall
be substantially as follows:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
This is one of the PIK Notes referred to in the within-
mentioned Indenture.
FIRST BANK NATIONAL ASSOCIATION,
As Trustee
Dated__________________ By____________________________
Authorized Signatory
(34)
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Section 2.5. Form of Subordinated Guarantee.
The form of the Subordinated Guarantee shall be set forth on
the Mortgage Notes substantially as follows:
SUBORDINATED GUARANTEE BY
TRUMP'S CASTLE ASSOCIATES
For value received, Trump's Castle Associates, a New Jersey
general partnership, hereby unconditionally guarantees to the
Holder of this PIK Note the payment of principal of, premium, if
any, and interest on this PIK Note in the amounts and at the time
when due and interest on the overdue principal and interest, if
any, of this PIK Note, if lawful, and the payment or performance
of all other obligations of the Company under the Indenture or the
PIK Notes, to the Holder of this PIK Note and the Trustee, all in
accordance with and subject to the terms and limitations of this
PIK Note and Article Fourteen of the Indenture. This Guarantee is
subordinated to certain superior obligations of the Partnership as
more fully set forth in Article Fourteen of the Indenture and is
without recourse to the partners of the Partnership and will not
become effective until the Trustee duly executes the certificate
of authentication on this PIK Note.
Dated:_____________________ TRUMP'S CASTLE ASSOCIATES
Attest:____________________ By____________________________
Authorized Signature General Partner
(SEAL)
ARTICLE THREE
THE PIK NOTES
Section 3.1. Title and Terms.
The aggregate principal amount of PIK Notes which may be
authenticated and delivered under this Indenture is limited to
$52,066,127 in principal amount of PIK Notes plus the aggregate
principal amount of Secondary PIK Notes issued hereunder, except
for PIK Notes authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other PIK Notes
pursuant to Section 3.3, 3.4, 3.5, 3.6, 9.6, 10.13 or 11.8.
The PIK Notes shall be known and designated as the Increasing
Rate Subordinated Pay-in-Kind Notes due 2005 of the Company. The
Stated Maturity of the PIK Notes shall be November 15, 2005, and
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the PIK Notes shall bear interest at the rate of 7% per annum
through September 30, 1994 and thereafter at the rate of 13-7/8%
per annum, from December 28, 1993 or from the most recent Interest
Payment Date to which interest has been paid, as the case may be,
payable on May 15, 1994 and semiannually thereafter on May 15 and
November 15, in each year, until the principal thereof is paid or
duly provided for, in the manner set forth in the form of the PIK
Note and in Section 3.7. Interest on any overdue principal,
interest (to the extent lawful) or premium, if any, shall be
payable on demand.
The principal of, premium, if any, and interest on PIK Notes
shall be payable at the office or agency of the Company maintained
for such purpose in The City of New York, or at such other office
or agency of the Company as may be maintained for such purpose;
provided, however, that at the option of the Company interest may
be paid by check (or delivery of Secondary PIK Notes, if
applicable) mailed to addresses of the Persons entitled thereto as
such addresses shall appear on the PIK Notes Register.
The PIK Notes shall be redeemable as provided in Article
Eleven.
At the election of the Company, the entire indebtedness on
the PIK Notes or certain of the Company's obligations and
covenants and certain Events of Default thereunder may be defeased
as provided in Article Four.
If the Company is served with notice of the disqualification
of any Holder under N.J.S.A. ss 5:12-105(d) by the CCC, such Holder
will be prohibited under N.J.S.A. ss 5:12-105(e) from (a) receiving
interest on the PIK Notes held by such Holder, (b) exercising
directly or through any trustee or nominee, any right conferred on
such PIK Notes and (c) receiving any remuneration in any form from
any company licensed by the CCC (including the Company and the
Trustee) for services rendered or otherwise.
Section 3.2. Denominations.
The PIK Notes shall be issuable only in registered form
without coupons and only in denominations of $1 and any integral
multiple thereof; provided that Secondary PIK Notes may be issued
in fractional denominations as provided herein.
Section 3.3. Execution, Authentication, Delivery and Dating.
The PIK Notes shall be executed on behalf of the Company by
its Chairman of the Board of Directors, Vice Chairman, its
President or a Vice President under the Company's corporate seal
reproduced thereon attested by its Secretary or one of its
Assistant Secretaries. The signature of any of these officers on
the PIK Notes may be manual or facsimile.
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PIK Notes bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the
Company shall bind the Company, notwithstanding that such
individuals or any of them have ceased to hold such offices prior
to the authentication and delivery of such PIK Notes or did not
hold such offices on the date of such PIK Notes.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver PIK Notes,
including Secondary PIK Notes as set forth in Section 3.7,
executed by the Company to the Trustee for authentication,
together with a Company Order for the authentication and delivery
of such PIK Notes; and the Trustee in accordance with such Company
Order shall authenticate and deliver such PIK Notes as provided in
this Indenture and not otherwise.
Each PIK Note shall be dated the date of its authentication
(except as may be otherwise provided herein with respect to
Secondary PIK Notes).
No PIK Note shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there
appears on such PIK Note a certificate of authentication
substantially in the form provided for herein duly executed by the
Trustee by manual signature of an authorized officer, and such
certificate upon any PIK Note shall be conclusive evidence, and
the only evidence, that such PIK Note has been duly authenticated
and delivered hereunder.
In case the Company, pursuant to Article Eight, shall be
consolidated, merged with or into any other Person or shall sell,
convey, assign, transfer or lease substantially all of its
properties and assets to any Person, and the successor Person
resulting from such consolidation, or surviving such merger, or
into which the Company shall have been consolidated or merged, or
the Person which shall have received a conveyance, transfer or
lease as aforesaid, shall have executed an indenture supplemental
hereto with the Trustee pursuant to Article Eight, any of the PIK
Notes authenticated or delivered prior to such consolidation,
merger, conveyance, transfer or lease may, from time to time, at
the request of the successor Person, be exchanged for other PIK
Notes executed in the name of the successor Person with such
changes in phraseology and form as may be appropriate, but
otherwise in substance of like tenor as the PIK Notes surrendered
for such exchange and of like principal amount; and the Trustee,
upon Company Request of the successor Person, shall authenticate
and deliver PIK Notes as specified in such request for the purpose
of such exchange. If PIK Notes shall at any time be authenticated
and delivered in any new name of a successor Person pursuant to
this Section in exchange or substitution for or upon registration
of transfer of any PIK Notes, such successor Person, at the option
of the Holders but without expense to them, shall provide for the
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exchange of all PIK Notes at the time Outstanding for PIK Notes
authenticated and delivered in such new name.
The Trustee may appoint an authenticating agent acceptable to
the Company to authenticate PIK Notes on behalf of the Trustee.
Unless limited by the terms of such appointment, an authenticating
agent may authenticate PIK Notes whenever the Trustee may do so
except upon original issuance. Each reference in this Indenture
to authentication by the Trustee includes authentication by such
agent. An authenticating agent has the same rights as any PIK
Notes Registrar or Paying Agent to deal with the Company and its
Affiliates.
Section 3.4. Temporary PIK Notes.
Pending the preparation of definitive PIK Notes, the Company
may execute, and upon Company Order the Trustee shall authenticate
and deliver, temporary PIK Notes which are printed, lithographed,
typewritten, mimeographed or otherwise produced, in any authorized
denomination, substantially of the tenor of the definitive PIK
Notes in lieu of which they are issued and with such appropriate
insertions, omissions, substitutions and other variations as the
officers executing such PIK Notes may determine, as conclusively
evidenced by their execution of such PIK Notes.
If temporary PIK Notes are issued, the Company will cause
definitive PIK Notes to be prepared without unreasonable delay.
After the preparation of definitive PIK Notes, the temporary PIK
Notes shall be exchangeable for definitive PIK Notes upon
surrender of the temporary PIK Notes at the office or agency of
the Company designated for such purpose pursuant to Section 10.2,
without charge to the Holder. Upon surrender for cancellation of
any one or more temporary PIK Notes the Company shall execute and
the Trustee shall authenticate and deliver in exchange therefor a
like principal amount of definitive PIK Notes of authorized
denominations. Until so exchanged the temporary PIK Notes shall
in all respects be entitled to the same benefits under this
Indenture as definitive PIK Notes.
Section 3.5. Registration, Registration of Transfer and
Exchange.
The Company shall cause to be kept at the Corporate Trust
Office of the Trustee, or such other office as the Trustee may
designate, a register (the register maintained in such office and
in any other office or agency designated pursuant to Section 10.2
being herein sometimes referred to as the "PIK Note Register") in
which, subject to such reasonable regulations as the PIK Note
Registrar may prescribe, the Company shall provide for the
registration of PIK Notes and of transfers of PIK Notes. The
Trustee is hereby initially appointed "PIK Note Registrar" for the
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purpose of registering PIK Notes and transfers of PIK Notes as
herein provided.
Upon surrender for registration of transfer of any PIK Note
in certificated form at the office or agency of the Company
designated pursuant to Section 10.2, the Company shall execute,
and the Trustee shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new PIK Notes of
any authorized denomination or denominations, of a like aggregate
principal amount.
At the option of the Company, PIK Notes may be exchanged for
other PIK Notes of any authorized denomination or denominations,
of a like aggregate principal amount, upon surrender of the PIK
Notes to be exchanged at such office or agency. Whenever any such
PIK Notes are so surrendered for exchange, the Company shall
execute, and the Trustee shall authenticate and deliver, the PIK
Notes which the Holder making the exchange is entitled to receive.
All PIK Notes issued upon any registration of transfer or
exchange of PIK Notes shall be the valid obligations of the
Company, evidencing the same Indebtedness, and entitled to the
same benefits under this Indenture, as the PIK Notes surrendered
upon such registration of transfer or exchange.
Every PIK Note presented or surrendered for registration of
transfer, or for exchange or redemption shall (if so required by
the Company or the Trustee) be duly endorsed, or be accompanied by
a written instrument of transfer in form satisfactory to the
Company and the PIK Note Registrar, duly executed by the Holder
thereof or his attorney duly authorized in writing.
No service charge shall be made to a Holder for any
registration of transfer or exchange or redemption of PIK Notes,
but the Company may require payment of a sum sufficient to pay all
documentary, stamp or similar issue or transfer taxes or other
governmental charges that may be imposed in connection with any
registration of transfer or exchange of PIK Notes, other than
exchanges pursuant to Section 3.3, 3.4, 9.6, 10.13 or 11.8 not
involving any transfer.
The Company shall not be required (a) to issue, register the
transfer of or exchange any PIK Note during a period beginning at
the opening of business 15 days before the mailing of a notice of
redemption of the PIK Notes selected for redemption under Section
11.4 and ending at the close of business on the day of such
mailing, or (b) to register the transfer of or exchange any PIK
Note so selected for redemption in whole or in part, except the
unredeemed portion of securities being redeemed in part.
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Section 3.6. Mutilated, Destroyed, Lost and Stolen PIK
Notes.
If (a) any mutilated PIK Note is surrendered to the Trustee,
or (b) the Company and the Trustee receive evidence to their
satisfaction of the destruction, loss or theft of any PIK Note,
and there is delivered to the Company and the Trustee, such
security or indemnity, in each case, as may be required by them to
save each of them harmless, then, in the absence of notice to the
Company or the Trustee that such PIK Note has been acquired by a
bona fide purchaser, the Company shall execute and upon its
written request the Trustee shall authenticate and deliver, in
exchange for any such mutilated PIK Note or in lieu of any such
destroyed, lost or stolen PIK Note, a replacement PIK Note of like
tenor and principal amount, bearing a number not contemporaneously
Outstanding.
In case any such mutilated, destroyed, lost or stolen PIK
Note has become or is about to become due and payable,
the Company in its discretion may, instead of issuing a
replacement PIK Note, pay such PIK Note.
Upon the issuance of any replacement PIK Notes under this
Section, the Company may require the payment of a sum sufficient
to pay all documentary, stamp or similar issue or transfer taxes
or other governmental charges that may be imposed in relation
thereto and any other expenses (including the fees and expenses of
the Trustee) connected therewith.
Every replacement PIK Note issued pursuant to this Section in
lieu of any destroyed, lost or stolen PIK Note shall constitute an
original additional contractual obligation of the Company and any
other obligor under the PIK Notes, whether or not the destroyed,
lost or stolen PIK Note shall be at any time enforceable by
anyone, and shall be entitled to all benefits of this Indenture
equally and proportionately with any and all other PIK Notes duly
issued hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with
respect to the replacement or payment of mutilated, destroyed,
lost or stolen PIK Notes.
Section 3.7. Payment of Interest; Interest Rights Preserved.
On each Interest Payment Date on or prior to November 15,
2003, the Company may, at its option, in lieu of the payment of
interest in cash on such PIK Note, elect, by giving the Holder of
such PIK Note and the Trustee notice of such election not less
than 5 days or more than 45 days prior to the record date from the
related Interest Payment Date, to pay interest on such PIK Note
through the issuance of additional PIK Notes ("Secondary PIK
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Notes") in an aggregate principal amount equal to the amount of
interest (rounded to the nearest whole cent) that would be payable
with respect to such PIK Note if such interest were paid in cash;
provided that interest payable on any date on or after the
Maturity of any PIK Note shall be payable solely in cash.
On each such Interest Payment Date, the Trustee shall, upon
Company Order, authenticate and deliver Secondary PIK Notes for
original issuance to each holder of PIK Notes on the relevant
record date, as shown by the records of the PIK Note Register, in
the aggregate principal amount required to pay such interest;
provided, however, that, in lieu of the issuance of any Secondary
PIK Notes as set forth above the principal amount of which would
be less than $1, the Company shall issue a Secondary PIK Note
rounded to the nearest whole dollar. Any Secondary PIK Notes so
issued shall be dated the applicable Interest Payment Date, shall
bear interest from and after such date, shall mature on November
15, 2005, and shall be governed by, and subject to the terms,
provisions and conditions of, this Indenture and shall have the
same rights and benefits as PIK Notes previously issued.
The Company shall have the right to aggregate amounts of
interest payable in the form of Secondary PIK Notes to a Holder of
Outstanding PIK Notes and issue to such Holder a single Secondary
PIK Note in payment thereof.
Interest on any PIK Note which is payable, and is punctually
paid or duly provided for, on any Interest Payment Date shall be
paid to the Person in whose name that PIK Note (or one or more
Predecessor PIK Notes) is registered at the close of business on
the Regular Record Date for such interest.
Any interest on any PIK Note which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date
and interest on such defaulted interest at the then applicable
interest rate borne by the PIK Notes, to the extent lawful (such
defaulted interest and interest thereon herein collectively called
"Defaulted Interest") shall forthwith cease to be payable to the
Holder on the Regular Record Date; and such Defaulted Interest may
be paid by the Company, at its election in each case, as provided
in subsection (a) or (b) below:
(a) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the PIK Notes (or their
respective Predecessor PIK Notes) are registered at the close of
business on a Special Record Date for the payment of such
Defaulted Interest, which shall be fixed in the following manner.
The Company shall notify the Trustee in writing of the amount of
Defaulted Interest proposed to be paid on each PIK Note and the
date of the proposed payment, and at the same time the Company
shall deposit with the Trustee an amount of money or, if
applicable, Secondary PIK Notes equal to the aggregate amount
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proposed to be paid in respect of such Defaulted interest or shall
make arrangements satisfactory to the Trustee for such deposit
prior to the date of the proposed payment, such money or Secondary
PIK Notes when deposited to be held in trust for the benefit of
the Persons entitled to such Defaulted Interest as in this
Subsection provided. Thereupon the Trustee shall fix a Special
Record Date for the payment of such Defaulted Interest which shall
be not more than 15 days and not less than 10 days prior to the
date of the proposed payment and not less than 10 days after the
receipt by the Trustee of the notice of the proposed payment. The
Trustee shall promptly notify the Company in writing of such
Special Record Date. In the name and at the expense of the
Company, the Trustee shall cause notice of the proposed payment of
such Defaulted Interest and the Special Record Date therefor to be
mailed, first-class postage prepaid, to each Holder at his address
as it appears in the PIK Note Register, not less than 10 days
prior to such Special Record Date. Notice of the proposed payment
of such Defaulted Interest and the Special Record Date therefor
having been so mailed, such Defaulted Interest shall be paid to
the Persons in whose names the securities (or their respective
Predecessor PIK Notes) are registered on such Special Record Date
and shall no longer be payable pursuant to the following
Subsection (b).
(b) The Company may make payment to the Persons in whose
name the PIK Notes are registered at the close of business on the
Special Record Date of any Defaulted Interest in any other lawful
manner not inconsistent with the requirements of any securities
exchange on which the PIK Notes may be listed, and upon such
notice as may be required by such exchange, unless, after written
notice given by the Company to the Trustee of the proposed payment
pursuant to this Subsection, such manner of payment shall not be
deemed practicable by the Trustee (acting reasonably). The
Trustee shall give prompt written notice to the Company of any
such determination.
Subject to the foregoing provisions of this Section, each PIK
Note delivered under this Indenture upon registration of transfer
of or in exchange for or in lieu of any other PIK Note shall carry
the rights to interest accrued and unpaid, and to accrue, which
were carried by such other PIK Note.
Section 3.8. Persons Deemed Owners.
Prior to and at the time of due presentment for registration
of transfer, the Company, the Trustee and any agent of the Company
or the Trustee may treat the Person in whose name any PIK Note is
registered as the owner of such PIK Note for the purpose of
receiving payment of principal of, premium, if any, and (subject
to Section 3.7) interest on such PIK Note and for all other
purposes whatsoever, whether or not such PIK Note is overdue, and
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neither the Company, the Trustee nor any agent of the Company or
the Trustee shall be affected by notice to the contrary.
Section 3.9. Cancellation.
All PIK Notes surrendered for payment, purchase, redemption
or registration of transfer or exchange shall be delivered to the
Trustee and, if not already cancelled, shall be promptly cancelled
by it. The Company may at any time deliver to the Trustee for
cancellation any PIK Notes previously authenticated and delivered
hereunder which the Company may have acquired in any manner
whatsoever, and all PIK Notes so delivered shall be promptly
cancelled by the Trustee. No PIK Notes shall be authenticated in
lieu of or in exchange for any PIK Notes cancelled as provided in
this Section, except as expressly permitted by this Indenture.
All cancelled PIK Notes held by the Trustee shall be destroyed and
certification of their destruction delivered to the Company unless
by a Company Order the Company shall direct that the cancelled PIK
Notes be returned to it. The Trustee shall provide the Company a
list of all PIK Notes that have been cancelled from time to time
as requested by the Company.
Section 3.10. Computation of Interest.
Interest on the PIK Notes shall be computed on the basis of a
360-day year of twelve 30-day months.
Section 3.11. Non-recourse.
Notwithstanding anything herein or in any other agreement,
document, certificate, instrument, statement or omission referred
to below to the contrary, the Company and the Partnership are
liable hereunder only to the extent of the assets of the Company
and the Partnership and no other person or entity, including, but
not limited to, any incorporator, officer, committee or committee
member of the Company or of any Affiliate of the Company
(including the Partnership), or any Affiliate or controlling
Person or entity of any of the foregoing, or any agent, employee
or lender of any of the foregoing, or any successor, personal
representative, heir or assign of any of the foregoing, in each
case past, present, or as they may exist in the future, shall be
liable in any respect (including without limitation the breach of
any representation, warranty, covenant, agreement, condition or
indemnification or contribution undertaking contained herein or
therein) under, in connection with, arising out of, or relating to
this Indenture or any other agreement, document, certificate,
instrument or statement (oral or written) related to, executed or
to be executed, delivered or to be delivered, or made or to be
made, or any omission made or to be made, in connection with any
of the foregoing or any of the transactions contemplated in any
such agreement, document, certificate, instrument or statement.
Notwithstanding the foregoing, the Holders preserve any personal
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claims they may have for fraud, liabilities under the Securities
Act, and other liabilities that cannot be waived under applicable
federal and state laws in connection with the purchase of the PIK
Notes; provided, however, that such conduct shall not constitute
an Event of Default under this Indenture, the PIK Notes or the
Pledge Agreement or any document executed in conjunction therewith
or otherwise related thereto. Any agreement, document,
certificate, statement or other instrument to be executed
simultaneously with, in connection with, arising out of or
relating to this Indenture, the PIK Notes, the Pledge Agreement or
any other agreement, document, certificate, statement or
instrument referred to above, or any agreement, document,
certificate, statement or instrument contemplated hereby shall
contain language mutatis mutandis to this paragraph and, if such
language is omitted, shall be deemed to contain such language.
ARTICLE FOUR
DEFEASANCE AND COVENANT DEFEASANCE
Section 4.1. Option to Effect Defeasance or Covenant
Defeasance.
The Company or the Partnership may, at their option, by Board
Resolution, at any time, with respect to the PIK Notes, elect to
have either Section 4.2 or Section 4.3 be applied to all of the
Outstanding PIK Notes (the "Defeased PIK Notes"), upon compliance
with the conditions set forth below in this Article Four.
Section 4.2. Defeasance and Discharge.
Upon the Company's or the Partnership's exercise under
Section 4.1 of the option applicable to this Section 4.2, each of
the Company, the Partnership and any other obligor under the PIK
Notes shall be deemed to have been discharged from its obligations
with respect to the Defeased PIK Notes on the date the conditions
set forth below are satisfied (hereinafter, "defeasance"). For
this purpose, such defeasance means that the Company and the
Partnership shall be deemed to have paid and discharged the entire
indebtedness represented by the Defeased PIK Notes, which shall
thereafter be deemed to be "Outstanding" only for the purposes of
Section 4.5 and the other Sections of this Indenture referred to
in (a) and (b) below, and to have satisfied all their other
obligations under such PIK Notes and this Indenture insofar as
such PIK Notes are concerned (and the Trustee, at the expense of
the Company, and, upon written request of the Company, shall
execute proper instruments acknowledging the same), except for the
following which shall survive until otherwise terminated or
discharged hereunder: (a) the rights of Holders of Defeased PIK
Notes to receive solely from the trust fund described in Section
4.4 and as more fully set forth in such Section, payments in
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respect of the principal of, premium, if any, and interest on such
PIK Notes when such payments are due, (b) the Company's or the
Partnership's obligations with respect to such Defeased PIK Notes
under Sections 3.4, 3.5, 3.6, 10.2 and 10.3, (c) the rights,
powers, trusts, duties, indemnities and immunities of the Trustee
hereunder and (d) this Article Four. Subject to compliance with
this Article Four, the Company and the Partnership may exercise
their option under this Section 4.2 notwithstanding the prior
exercise of its option under Section 4.3 with respect to the PIK
Notes.
Section 4.3. Covenant Defeasance.
Upon the Company's and the Partnership's exercise under
Section 4.1 of the option applicable to this Section 4.3, each of
the Company, the Partnership and any other obligor under the PIK
Notes shall be released from its obligations, if any, under any
covenant or provision contained in Sections 8.1(a)(ii), (iii)(B),
(iv) and (v)(B), 8.1(b)(ii), (iv), (v) and (vii)(B), 10.5 through
10.17, 10.19 and 10.21 and Article Twelve, with respect to the
Defeased PIK Notes on and after the date the conditions set forth
below are satisfied (hereinafter, "covenant defeasance"), and the
Defeased PIK Notes shall thereafter be deemed to be not
"Outstanding" for the purposes of any direction, waiver, consent
or declaration or Act of Holders (and the consequences of any
thereof) in connection with such covenants, but shall continue to
be deemed "Outstanding" for all other purposes hereunder. For
this purpose, such covenant defeasance means that, with respect to
the Defeased PIK Notes, the Company and the Partnership and any
such obligor may omit to comply with and shall have no liability
in respect of any term, condition or limitation set forth in any
such Section or Article, whether directly or indirectly, by reason
of any reference elsewhere herein or in such Defeased PIK Notes or
in the Pledge Agreement or other documents to any such Section or
Article or by reason of any reference in any such Section or
Article to any other provision herein or in any other document and
such omission to comply shall not constitute a Default or an Event
of Default under Sections 5.1(d), but, except as specified above
and in the following sentence, the remainder of this Indenture and
such Defeased PIK Notes shall be unaffected thereby. Upon any
covenant defeasance, the events set forth in Sections 5.1(d), (e),
(h), (i) and (j) shall not constitute Defaults or Events of
Defaults hereunder and any cross-reference in the Pledge Agreement
to a Default or Event of Default under this Indenture shall not be
deemed to include such Defaults or Events of Default.
Section 4.4. Conditions to Defeasance or Covenant
Defeasance.
The following shall be the conditions to application of
either Section 4.2 or Section 4.3 to the Defeased PIK Notes:
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(1) the Company and the Partnership shall irrevocably have
deposited or caused to be deposited with the Trustee (or another
trustee satisfying the requirements of Section 6.8 who shall agree
to comply with the provisions of this Article Four applicable to
it) as trust funds in trust for the purpose of making the
following payments, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of such PIK Notes,
(a) money in an amount, or (b) U.S. Government Obligations which
through the scheduled payment of principal and interest in respect
thereof in accordance with their terms will provide, not later
than one day before the due date of any payment, money in an
amount, or (c) a combination thereof, sufficient, in the opinion
of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the
Trustee, to pay and discharge and which shall be applied by the
Trustee (or other qualifying trustee) to pay and discharge, (i)
the principal of, premium, if any, and interest on the Defeased
PIK Notes on the Stated Maturity of such principal or installment
of principal or interest and (ii) any payments applicable to the
Outstanding PIK Notes on the day on which such payments are due
and payable in accordance with the terms of this Indenture and of
such PIK Notes; provided that the Trustee shall have been
irrevocably instructed to apply such money or the proceeds of such
U.S. Government Obligations to said payments with respect to the
PIK Notes. For this purpose, "U.S. Government Obligations" means
securities that are (i) direct obligations of the United States of
America for the timely payment of which its full faith and credit
is pledged or (ii) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the
United States of America the timely payment of which is
unconditionally guaranteed as a full faith and credit obligation
by the United States of America, which, in either case, are not
callable or redeemable at the option of the issuer thereof, and
shall also include a depository receipt issued by a bank (as
defined in Section 3(a)(2) of the Securities Act), as custodian
with respect to any such U.S. Government Obligation or a specific
payment of principal of or interest on any such U.S. Government
Obligation held by such custodian for the account of the holder of
such depository receipt, provided that (except as required by law)
such custodian is not authorized to make any deduction from the
amount payable to the holder of such depository receipt from any
amount received by the custodian in respect of the U.S Government
Obligation or the specific payment of principal of or interest on
the U.S. Government obligation evidenced by such depository
receipt.
(2) No Default or Event of Default shall have occurred and
be continuing on the date of such deposit or, insofar as
subsections 5.1(f) and (g) are concerned, at any time during tho
period ending on the 121st day after the date of such deposit (it
being understood that this condition shall not be deemed satisfied
until the expiration of such period).
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(3) Such defeasance or covenant defeasance shall not cause
the Trustee for the PIK Notes to have a conflicting interest in
violation of Section 6.7 and for purposes of the Trust Indenture
Act with respect to any securities of the Company or any other
obligor under the PIK Notes.
(4) Such defeasance or covenant defeasance shall not result
in a breach or violation of, or constitute a default or event of
default under, this Indenture or any other material agreement or
instrument to which the Company, the Partnership or any other
obligor under the PIK Notes is a party or by which it is bound.
(5) In the case of an election under Section 4.2, the
Company and the Partnership shall have delivered to the Trustee an
Opinion of Counsel stating that (x) the Company has received from,
or there has been published by, the Internal Revenue Service a
ruling or (y) since the date hereof, there has been a change in
the applicable Federal income tax law, in either case to the
effect that, and based thereon such opinion shall confirm that,
the Holders of the Outstanding PIK Notes will not recognize
income, gain or loss for Federal income tax purposes as a result
of such defeasance and will be subject to United States Federal
income tax on the same amounts, in the same manner and at the same
times as would have been the case if such defeasance had not
occurred.
(6) In the case of an election under Section 4.3, the
Company shall have delivered to the Trustee an Opinion of Counsel
to the effect that the Holders of the Outstanding securities will
not recognize income, gain or loss for United States Federal
income tax purposes as a result of such covenant defeasance and
will be subject to Federal income tax on the same amounts, in the
same manner and at the same times as would have been the case if
such covenant defeasance had not occurred.
(7) The Company shall have delivered to the Trustee an
Officers' Certificate stating that the deposit made by the Company
pursuant to their election under Section 4.2 or 4.3 was not made
by the Company with the intent of preferring the Holders over the
other creditors of the Company with the intent of defeating,
hindering, delaying or defrauding creditors of the Company or
others.
(8) The Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that
all conditions precedent (other than conditions requiring the
passage of time) provided for relating to either the defeasance
under Section 4.2 or the covenant defeasance under Section 4.3 (as
the case may be) have been complied with as contemplated by this
Section 4.4. Opinions required to be delivered under this Section
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may have qualifications customary for opinions of the type
required.
Section 4.5. Deposited Money and U.S. Government Obligations
to be Held in Trust; Other Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section
10.3, all money and U.S. Government Obligations (including the
proceeds thereof) deposited with the Trustee (or other qualifying
trustee--collectively for purposes of this Section 4.5, the
"Trustee") pursuant to Section 4.4 in respect of the Defeased PIK
Notes shall be held in trust and applied by the Trustee, in
accordance with the provisions of such PIK Notes and this
Indenture, to the payment, either directly or through any Paying
Agent (including the Company acting as its own Paying Agent) as
the Trustee may determine, to the Holders of such PIK Notes of all
sums due and to become due thereon in respect of principal,
premium, if any, and interest, but such money need not be
segregated from other funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against the U.S.
Government Obligations deposited pursuant to Section 4.4 or the
principal and interest received in respect thereof other than any
such tax, fee or other charge which by law is for the account of
the Holders of the Defeased PIK Notes.
Anything in this Article Four to the contrary notwithstanding,
the Trustee shall deliver or pay to the Company from time to time
upon Company Request any money or U.S. Government Obligations held
by it as provided in Section 4.4 which, in the opinion of a
nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the
Trustee, are in excess of the amount thereof which would then be
required to be deposited to effect an equivalent defeasance or
covenant defeasance.
Section 4.6. Reinstatement.
If the Trustee or Paying Agent is unable to apply any money
or U.S. Government obligations in accordance with Section 4.2 or
4.3, as the case may be, by reason of any order or judgment of any
court or governmental authority enjoining, restraining or
otherwise prohibiting such application, then the Company's
obligations under this Indenture and the PIK Notes shall be
revived and reinstated as though no deposit had occurred pursuant
to Section 4.2 or 4.3, as the case may be, until such time as the
Trustee or Paying Agent is permitted to apply all such money or
U.S. Government Obligations in accordance with Section 4.2 or 4.3,
as the case may be; provided, however, that if the Company makes
any payment of principal, premium, if any, or interest on any PIK
Note following the reinstatement of its obligations, the Company
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shall be subrogated to the rights of the Holders of such PIK Notes
to receive such payment from the money held by the Trustee or
Paying Agent.
ARTICLE FIVE
REMEDIES
Section 5.1. Events of Default.
"Event of Default", wherever used herein, means any one of
the following events (whatever the reason for such Event of
Default and whether it shall be voluntary or involuntary or be
effected by operation of law or pursuant to any judgment, decree
or order of any court or any order, rule or regulation of any
administrative or governmental body):
(a) default in the payment of any interest (including any
Defaulted Interest) on any of the PIK Notes when the same becomes
due and payable and the default continues for a period of 30 days;
(b) default in the payment of the principal of (or premium,
if any, on) any of the PIK Notes when the same becomes due and
payable at its Stated Maturity, upon acceleration, optional
redemption, required repurchase, scheduled principal payment or
otherwise;
(c)(i) default in the performance, or breach, of any
covenant of the Company under the PIK Notes, this Indenture or the
Pledge Agreement (other than a default in the performance, or
breach, of a Covenant that is specifically dealt with elsewhere in
this Section 5.1) that continues for 30 days after written notice
has been given, by registered or certified mail, (x) to the
Company by the Trustee or (y) to the Company and the Trustee by
Holders of at least 25% of the aggregate principal amount of
Outstanding PIK Notes, specifying such default and requiring that
it be remedied; (ii) default in the performance or breach of the
provisions of Article Eight hereof; (iii) the Company shall have
failed to make or consummate a Change of Control Offer in
accordance with Section 10.13 hereof; or (iv) the Company or the
Partnership shall have failed to make or consummate a required
purchase of Mortgage Notes or PIK Notes in accordance with Section
10.9;
(d)(i) any Indebtedness of the Company, the Partnership or
any of the Subsidiaries for borrowed money having an outstanding
principal amount of $10,000,000 in the aggregate or any Mortgage
Debt (other than F,F&E Financing Agreements) of the Company, the
Partnership or any of the Subsidiaries, whether such Indebtedness
or Mortgage Debt now exists or shall hereafter be created,
becomes, whether by declaration or otherwise, due and payable
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prior to its stated maturity or (ii) a default in any payment when
due at final maturity of any such Indebtedness or Mortgage Debt;
(e) one or more judgments, orders or decrees for the payment
of money in excess of $10,000,000, either individually or in the
aggregate, shall be rendered against the Company, the Partnership
or any of the Subsidiaries or any of their respective properties
and shall not be discharged and either (i) an enforcement
proceeding shall have been commenced by any creditor upon such
judgment, order or decree or (ii) there shall be any period of 60
days, during which a stay of enforcement of such judgment or
order, by reason of a pending appeal or otherwise, shall not be in
effect;
(f) there shall have been the entry by a court having
jurisdiction in the premises of (i) a decree or order for relief
in respect of the Company, the Partnership or any of the
Subsidiaries in an involuntary case or proceeding under any
applicable Bankruptcy Law or (ii) a decree or order adjudging the
Company, the Partnership or any of the Subsidiaries bankrupt or
insolvent, or seeking reorganization, arrangement, adjustment or
composition of or in respect of the Company, the Partnership or
any of the Subsidiaries under any applicable federal or state law,
or appointing a custodian, receiver, liquidator, assignee,
trustee, sequestrator (or other similar official) of the Company,
the Partnership or any of the Subsidiaries or of any substantial
part of their property, or ordering the winding-up or liquidation
of their affairs, and the continuance of any such decree or order
for relief or any such other decree or order unstayed and in
effect for a period of 60 consecutive days;
(g)(i) the Company, the Partnership or any of the
Subsidiaries commences a voluntary case or proceeding under any
applicable Bankruptcy Law or any other case or proceeding to be
adjudicated bankrupt or insolvent, or (ii) the Company, the
Partnership or any of the Subsidiaries consents to the entry of a
decree or order for relief in respect of the Company, the
Partnership or such Subsidiary in an involuntary case or
proceeding under any applicable Bankruptcy Law or to the
commencement of any bankruptcy or insolvency case or proceeding
against it, or (iii) the Company, the Partnership or any of the
Subsidiaries files a petition or answer or consent seeking
reorganization or relief under any applicable federal or state
law, or the Company, the Partnership or any of the Subsidiaries
consents to (1) the filing of such petition or the appointment of
or taking possession by a custodian, receiver, liquidator,
assignee, trustee, sequestrator or similar official of the
Company, the Partnership or such Subsidiary or of any substantial
part of its property, (2) the making by it of an assignment for
the benefit of creditors or (3) the admission by it in writing of
its inability to pay its debts generally as they become due, or
(iv) the taking of corporate or partnership action by the Company,
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the Partnership or any of the Subsidiaries in furtherance of any
such action in this paragraph (g);
(h) the revocation, suspension or involuntary loss of any
Permit which results in the cessation of a substantial portion of
the operations of the Casino Hotel for a period of more than 90
consecutive days;
(i) the Subordinated Partnership Note and/or the Pledge
Agreement shall for any reason cease to be in full force and
effect or enforceable in accordance with its terms;
(j) an "Event of Default" under the Pledge Agreement shall
have occurred and be continuing; or
(k) an entity, which at the time, directly or indirectly,
holds general partnership interests in both of Trump Plaza
Associates and Trump Taj Mahal Associates, which general
partnership interests had previously been held by Donald J. Trump
and his Affiliates, sells through an initial public distribution
its equity securities without having first acquired all the direct
and indirect general partnership interests in the Partnership held
by Donald J. Trump as of the date of this Indenture.
Section 5.2. Acceleration of Maturity; Rescission and
Annulment.
If an Event of Default (other than an Event of Default
specified in Section 5.1(f) or (g)) occurs and is continuing, then
and in every such case the Trustee or the Holders of not less than
25% in aggregate principal amount of the PIK Notes outstanding
may, and the Trustee upon the request of the Holders of not less
than 25% in aggregate principal amount of the PIK Notes
outstanding shall, declare the principal of all the PIK Notes, to
be due and payable immediately in an amount equal to the principal
amount of the PIK Notes, together with accrued and unpaid interest
to the date the PIK Notes become due and payable, by a notice in
writing to the Company (and to the Trustee, if given by the
Holders) unless on or prior to such amounts having become due and
payable the Company shall have discharged or paid in full the
Indebtedness, if any, that is the subject of such Event of Default
and shall have given written notice of such cure to the Trustee
(which notice in the case of an Event of Default specified in
Section 5.1(d) shall be countersigned by the holders of the
Indebtedness that is the subject of such Event of Default or by a
trustee, fiduciary or agent for such holders). If an Event of
Default specified in Section 5.1(f) or (g) occurs and is
continuing, then the principal of all the PIK Notes, shall ipso
facto become and be immediately due and payable without any
declaration or other act on the part of the Trustee or any Holder.
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At any time after such declaration of acceleration has been
made and before a judgment or decree for payment of the money due
has been obtained by the Trustee as hereinafter in this Article
provided, the Holders of a majority in aggregate principal amount
of the PIK Notes Outstanding, by written notice to the Company and
the Trustee, may rescind and annul such declaration and its
consequences if:
(a) the Company has paid or deposited with the Trustee a sum
sufficient to pay:
(i) all amounts due the Trustee under Section 6.6 and
the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel,
(ii) all overdue interest on all such PIK Notes,
(iii) the principal of and premium, if any, on any PIK
Notes which have become due otherwise than by such
declaration of acceleration and interest thereon at the rate
borne by the PIK Notes, and
(iv) to the extent that payment of such interest is
lawful, interest upon overdue interest at the rate borne by
such PIK Notes; and
(b) all Events of Default, other than the non-payment of
principal of PIK Notes which have become due solely by such
declaration of acceleration, have been cured or waived as provided
in Section 5.13.
No such rescission shall affect any subsequent default or
impair any right consequent thereon provided in Section 5.13.
Section 5.3. Collection of Indebtedness and Suits for
Enforcement by Trustee.
The Company covenants that if
(a) default is made in the payment of any interest on any
PIK Note when such interest becomes due and payable and such
default continues for a period of 30 days, or
(b) default is made in the payment of the principal of or
premium, if any, on any PIK Note at the Stated Maturity thereof,
the Company and the Partnership will, upon demand of the Trustee,
pay to it, for the benefit of the Holders of such PIK Notes, the
whole amount then due and payable on such PIK Notes for principal
and premium, if any, and interest, with interest upon the overdue
principal and premium, if any, and, to the extent that payment of
such interest shall be legally enforceable, upon overdue
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installments of interest, at the rate borne by the PIK Notes; and,
in addition thereto, such further amount as shall be sufficient to
cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel.
If the Company or the Partnership fails to pay such amounts
forthwith upon such demand, the Trustee, in its own name and as
trustee of an express trust, may institute a judicial proceeding
for the collection of the sums so due and unpaid and may prosecute
such proceeding to judgment or final decree, and may enforce the
same against the Company or any other obligor upon the PIK Notes
and collect the moneys adjudged or decreed to be payable in the
manner provided by law out of the property of the Company or any
other obligor upon the PIK Notes, wherever situated.
If an Event of Default occurs and is continuing, the Trustee
may in its discretion proceed to protect and enforce its rights
and the rights of the Holders under this Indenture or the Pledge
Agreement (subject to the terms thereof) by such appropriate
private or judicial proceedings as the Trustee shall deem most
effectual to protect and enforce such rights, including, without
limitation, any rights or powers conferred on the Trustee pursuant
to the Pledge Agreement, or (ii) to proceed to protect and enforce
the rights of the Trustee and the Holders of PIK Notes under the
Pledge Agreement by such appropriate private or judicial
proceedings as the Trustee shall deem most effectual to protect
and enforce any such rights, whether for the specific enforcement
of any covenant or agreement in the Pledge Agreement or in aid of
the exercise of any power granted therein, or to enforce any other
proper remedy including, without limitation, appointment of a
receiver for the Collateral and foreclosure, realization and sale
of the Collateral pursuant to the terms of the Pledge Agreement.
The Trustee shall be entitled to sue and recover judgment as
aforesaid or to sue to enforce any Lien under the Pledge
Agreement, in either case, either before, after or during the
pendency of any other proceeding for the enforcement of any Lien
under the Pledge Agreement, and the right of the Trustee to
recover such judgment shall not be affected by any sale under the
Pledge Agreement or by the exercise of any right, power or remedy
for the enforcement of the provisions of the Pledge Agreement, or
the foreclosure or enforcement of any Lien of the Pledge
Agreement. No recovery of any such judgment upon any property of
the Company shall affect or impair the Lien on the Collateral or
any rights, powers or remedies of the Trustee or the Holders.
Section 5.4. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment,
composition or other judicial proceeding relative to the Company,
the Partnership or any other obligor upon the PIK Notes or the
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property of the Company, the Partnership or such other obligor,
the Trustee (irrespective of whether the principal of the PIK
Notes shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the Trustee
shall have made any demand on the Company for the payment of
overdue principal or interest) shall be entitled and empowered, by
intervention in such proceeding or otherwise:
(a) to file and prove a claim for the whole amount of
principal, and premium, if any, and interest owing and unpaid in
respect of the PIK Notes and to file such other papers or
documents as may be necessary or advisable in order to have the
claims of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel) and of the Holders allowed in such
judicial proceeding; and
(b) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the
same;
and any custodian, in any such judicial proceeding is hereby
authorized by each Holder to make such payments to the Trustee
and, in the event that the Trustee shall consent to the making of
such payments directly to the Holders, to pay the Trustee any
amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel,
and any other amounts due the Trustee under Section 6.6.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of
any Holder any plan of reorganization, arrangement, adjustment or
composition affecting the PIK Notes or the rights of any Holder
thereof, or to authorize the Trustee to vote in respect of the
claim of any Holder in any such proceeding.
Section 5.5. Trustee May Enforce Claims Without Possession
of PIK Notes.
All rights of action and claims under this Indenture or the
PIK Notes may be prosecuted and enforced by the Trustee without
the possession of any of the PIK Notes or the production thereof
in any proceeding relating thereto, and any such proceeding
instituted by the Trustee shall be brought in its own name and as
trustee of an express trust, and any recovery of judgment shall,
after provision for the payment of the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents
and counsel, be for the ratable benefit of the Holders of the PIK
Notes in respect of which such judgment has been recovered.
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Section 5.6. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article
shall be applied, subject to applicable law, in the following
order, at the date or dates fixed by the Trustee and, in case of
the distribution of such money on account of principal, premium,
if any, or interest, upon presentation of the PIK Notes and the
notation thereon of the payment if only partially paid and upon
surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 6.6;
SECOND: To the payment of the amounts then due and unpaid
upon the PIK Notes for principal, premium, if any, and interest,
in respect of which or for the benefit of which such money has
been collected, ratably, without preference or priority of any
kind, according to the amounts due and payable on such PIK Notes
for principal, premium, if any, and interest; and
THIRD: The balance, if any, to the Person or Persons entitled
thereto, including the Company.
Section 5.7. Limitation on Suits.
No Holder of any PIK Notes shall have any right to institute
any proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or trustee, or for
any other remedy hereunder, unless
(a) such Holder has previously given written notice to the
Trustee of a continuing Event of Default;
(b) the Holders of not less than 25% in principal amount of
the outstanding securities shall have made written request to the
Trustee to institute proceedings in respect of such Event of
Default in its own name as Trustee hereunder;
(c) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities
to be incurred in compliance with such request;
(d) the Trustee for 60 days after its receipt of such
notice, request and offer of indemnity has failed to institute any
such proceeding; and
(e) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the Holders
of a majority in principal amount of the Outstanding PIK Notes;
it being understood and intended that no one or more Holders shall
have any right in any manner whatever by virtue of, or by availing
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of, any provision of this Indenture or the Pledge Agreement to
affect, disturb or prejudice the rights of any other Holders, or
to obtain or to seek to obtain priority or preference over any
other Holders or to enforce any right under this Indenture, except
in the manner provided in this Indenture or the Pledge Agreement,
and for the equal and ratable benefit of all of the Holders.
Section 5.8. Unconditional Right of Holders to Receive
Principal, Premium and Interest.
Notwithstanding any other provision in this Indenture, the
Holder of any PIK Note shall have the right on the terms stated
herein, which is absolute and unconditional, to receive payment of
the principal of, premium, if any, and (subject to Sections 3.1
and 3.7) interest on such PIK Note on the respective Stated
Maturities expressed in such PIK Note (or, in the case of
redemption, on the Redemption Date) and to institute suit for the
enforcement of any such payment, and such rights shall not be
impaired without the consent of such Holder.
Section 5.9. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture or the Pledge
Agreement and such proceeding has been discontinued or abandoned
for any reason, or has been determined adversely to the Trustee or
to such Holder, then and in every such case the Company, any other
obligor under the PIK Notes, the Trustee and the Holders shall,
subject to any determination in such proceeding, be restored
severally and respectively to their former positions hereunder,
and thereafter all rights and remedies of the Trustee and the
Holders shall continue as though no such proceeding had been
instituted.
Section 5.10. Rights and Remedies Cumulative.
Except as provided in Section 3.6, no right or remedy herein
conferred upon or reserved to the Trustee or to the Holders is
intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given
hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
Section 5.11. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any
PIK Note to exercise any right or remedy accruing upon any Event
of Default shall impair any such right or remedy or constitute a
waiver of any such Event of Default or an acquiescence therein.
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Every right and remedy given by this Article or by law to the
Trustee or to the Holders may be exercised from time to time, and
as often as may be deemed expedient, by the Trustee or by the
Holders, as the case may be.
Section 5.12. Control by Holders.
The Holders of a majority in principal amount of the
Outstanding PIK Notes shall have the right to direct the time,
method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power
conferred on the Trustee hereunder or under the Pledge Agreement,
provided that
(a) such direction shall not be in conflict with any rule of
law or with this Indenture or the Pledge Agreement or expose the
Trustee to personal liability; and
(b) the Trustee may take any other action deemed proper by
the Trustee which is not inconsistent with such direction.
Section 5.13. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount
of the Outstanding PIK Notes may on behalf of the Holders of all
the PIK Notes waive any past Default hereunder and its
consequences, except a Default
(a) in the payment of the principal of, premium, if any, or
interest on any security, or
(b) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of
the Holder of each Outstanding PIK Note affected.
Upon any such waiver, such Default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have
been cured, for every purpose of this Indenture; but no such
waiver shall extend to any subsequent or other default or impair
any right consequent thereon.
Section 5.14. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any
PIK Note by his acceptance thereof shall be deemed to have agreed,
that any court may in its discretion require, in any suit for the
enforcement of any right or remedy under this Indenture or the
Pledge Agreement, or in any suit against the Trustee for any
action taken, suffered or omitted by it as Trustee, the filing by
any party litigant in such suit of an undertaking to pay the costs
of such suit, and that such court may in its discretion assess
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reasonable costs, including reasonable attorneys' fees, against
any party litigant in such suit, having due regard to the merits
and good faith of the claims or defenses made by such party
litigant; but the provisions of this Section shall not apply to
any suit instituted by the Trustee, to any suit instituted by any
Holder, or group of Holders, holding in the aggregate more than
10% in principal amount of the outstanding PIK Notes, or to any
suit instituted by any Holder for the enforcement of the payment
of the principal of, premium, if any, or interest on any PIK Note
on or after the respective Stated Maturities expressed in such PIK
Notes (or, in the case of redemption, on or after the Redemption
Date).
Section 5.15. Waiver of Stay, Extension or Usury Laws.
Each of the Company, the Partnership and any other obligor
under the PIK Notes covenants (to the extent that it may lawfully
do so) that it will not at any time insist upon, or plead, or in
any manner whatsoever claim or take the benefit or advantage of,
any stay or extension law or any usury or other law wherever
enacted, now or at any time hereafter in force, which would
prohibit or forgive the Company, the Partnership or any such
obligor from paying all or any portion of the principal of,
premium, if any, or interest on the PIK Notes contemplated herein
or in the PIK Notes or which may affect the covenants or the
performance of this Indenture; and each of the Company, the
Partnership and any such obligor (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage
of any such law, and covenants that it will not hinder, delay or
impede the execution of any power herein granted to the Trustee,
but will suffer and permit the execution of every such power as
though no such law had been enacted.
Section 5.16. Unconditional Right of Holders to Institute
Certain Suits.
Notwithstanding any other provision in this Indenture and any
other provision of any PIK Note, the right of any Holder of any
PIK Note to receive payment of the principal of, premium, if any,
and interest on such PIK Note on or after the respective due dates
expressed in such PIK Note, or to institute suit for the
enforcement of any such payment on or after such respective dates,
shall not be impaired or affected without the consent of such
Holder.
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ARTICLE SIX
THE TRUSTEE
Section 6.1. Duties of Trustee and Notice of Defaults.
(a) Except during the continuance of an Event of Default,
(1) the Trustee undertakes to perform such duties and
only such duties as are specifically set forth in this
Indenture and the Pledge Agreement, and no implied covenants
or obligations shall be read into this Indenture against the
Trustee; and
(2) in the absence of bad faith on its part, the
Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed
therein, upon certificates or opinions furnished to the
Trustee and conforming to the requirements of this Indenture
or the Pledge Agreement; but in the case of any such
certificates or opinions which by any provision hereof are
specifically required to be furnished to the Trustee, the
Trustee shall be under a duty to examine the same to
determine whether or not they conform to the requirements of
this Indenture and the Pledge Agreement.
(b) In case an Event of Default has occurred and is
continuing, the Trustee shall exercise such of the rights and
powers vested in it by this Indenture, and use the same degree of
care and skill in their exercise, as a prudent person would
exercise or use under the circumstances in the conduct of such
person's own affairs.
(c) No provision of this Indenture shall be construed to
relieve the Trustee from liability for its own negligent action,
its own negligent failure to act, or its own willful misconduct,
except that
(1) this Subsection (c) shall not be construed to limit
the effect of Subsection (a) of this Section 6.1;
(2) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless
it shall be proved that the Trustee was negligent in
ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of a majority in
aggregate principal amount of the Outstanding PIK Notes
relating to the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or
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exercising any trust or power conferred upon the Trustee
under this Indenture; and
(4) no provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur
any financial liability in the performance of any of its
duties hereunder, or in the exercise of any of its rights or
powers, if it shall have reasonable ground for believing that
repayment of such funds or adequate indemnity against such
risk or liability is not reasonably assured to it.
(d) Whether or not therein expressly so provided, every
provision of this Indenture relating to the conduct or affecting
the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section 6.1.
(e) Within 30 days after the occurrence of any Default, the
Trustee shall transmit by mail to all Holders, as their names and
addresses appear in the PIK Note Register, notice of such Default
hereunder known to the Trustee, unless such Default shall have
been cured or waived; provided, however, that, except in the case
of a Default in the payment of the principal of, premium, if any,
or interest on any PIK Note, the Trustee shall be protected in
withholding such notice if and so long as a trust committee of
responsible officers of the Trustee in good faith determines that
the withholding of such notice is in the interest of the Holders;
and provided, further, that in the case of any Default of the
character specified in Section 5.1(c) no such notice to Holders
shall be given until at least 15 days after the occurrence
thereof. The Trustee shall not be deemed to have knowledge of any
Default (other than a Default under Section 5.1(a) or (b)
hereunder) unless and until the Trustee shall have received notice
of such Default.
Section 6.2. Certain Rights of Trustee.
Subject to the provisions of Trust Indenture Act Section 315:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence
of indebtedness or other paper or document believed by it to be
genuine and to have been signed or presented by the proper party
or parties;
(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company
Order and any resolution of the Board of Directors may be
sufficiently evidenced by a Board Resolution;
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(c) the Trustee may consult with counsel and any advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance
thereon in accordance with such advice or Opinion of Counsel;
(d) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the
request or direction of any of the Holders pursuant to this
Indenture, unless such Holders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred therein or thereby in
compliance with such request or direction;
(e) the Trustee shall not be liable for any action taken or
omitted by it in good faith and believed by it to be authorized or
within the discretion, rights or powers conferred upon it by this
Indenture other than any liabilities arising out of the negligence
of the Trustee;
(f) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request,
direction, consent, order, approval, appraisal, bond, debenture,
note, coupon, security or other paper or document unless requested
in writing so to do by the Holders of not less than a majority in
aggregate principal amount of the PIK Notes then Outstanding;
provided that, if the payment within a reasonable time to the
Trustee of the costs, expenses or liabilities likely to be
incurred by it in the making of such investigation is, in the
opinion of the Trustee, not reasonably assured to the Trustee by
the security afforded to it by the terms of this Indenture, the
Trustee may require reasonable indemnity against such expenses or
liabilities as a condition to proceeding; the reasonable expenses
of every such investigation shall be paid by the Partnership or,
if paid by the Trustee or any predecessor Trustee, shall be repaid
by the Partnership upon demand; provided, further, the Trustee in
its discretion may make such further inquiry or investigation into
such facts or matters as it may deem fit, and, if the Trustee
shall determine to make such further inquiry or investigation, it
shall be entitled to examine the books, records and premises of
the Partnership, personally or by agent or attorney;
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be
responsible for any misconduct or negligence on the part of any
agent or attorney appointed with due care by it hereunder;
(h) no provision of this Indenture shall require the Trustee
to expend or risk its own funds or otherwise incur any financial
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liability in the performance of any of its duties hereunder, or in
the exercise of any of its rights or powers;
(i) the Trustee undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture, and
no implied covenants or obligations shall be read into this
Indenture against the Trustee; and
(j) in addition to and not in limitation of its other powers
hereunder, the Trustee shall have such power and authority as may
be necessary to enter into and accept delivery of any document as
may be necessary to effect on behalf of the Holders of the PIK
Notes the subordination of the indebtedness and Liens in respect
of the PIK Notes to the Midlantic Term Loan and the Working
Capital Facility and the Liens securing the same, and upon written
request of the Company, the Trustee shall enter into such
agreements on behalf of the Holders.
Section 6.3. Trustee Not Responsible for Recitals,
Dispositions of PIK Notes or Application of Proceeds Thereof.
The recitals contained herein and in the PIK Notes, except
the Trustee's certificates of authentication, shall be taken as
the statements of the Company, and the Trustee assumes no
responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this
Indenture or of the PIK Notes, except that the Trustee represents
that it is duly authorized to execute and deliver this Indenture,
authenticate the PIK Notes and perform its obligations hereunder
and that the statements made by it in a Statement of Eligibility
and Qualification on Form T-1 to be supplied to the Company will
be true and accurate subject to the qualifications set forth
therein. The Trustee shall not be accountable for the use or
application by the Company of PIK Notes or the proceeds thereof.
Section 6.4. Trustee and Agents May Hold PIK Notes;
Collections; Etc.
The Trustee, any Paying Agent, PIK Notes Registrar or any
other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of PIK Notes, with the
same rights it would have if it were not the Trustee, Paying
Agent, PIK Notes Registrar or such other agent and, subject to
Trust Indenture Act Sections 310 and 311, may otherwise deal with
the Company and receive, collect, hold and retain collections from
the Company with the same rights it would have if it were not the
Trustee, Paying Agent, PIK Notes Registrar or such other agent.
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Section 6.5. Money Held in Trust.
All moneys received by the Trustee shall, until used or
applied as herein provided, be held in trust for the purposes for
which they were received, but need not be segregated from other
funds except to the extent required by mandatory provisions of
law. Neither the Trustee nor any agent of the Company or the
Trustee shall be under any liability for interest on any moneys
received by it hereunder.
Section 6.6. Compensation and Indemnification of Trustee and
Its Prior Claim.
The Company and the Partnership covenant and agree to pay to
the Trustee from time to time, and the Trustee shall be entitled
to, reasonable compensation for all services rendered by it
hereunder (which shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust) and
the Partnership covenants and agrees to pay or reimburse the
Trustee and each predecessor Trustee upon its request for all
reasonable expenses, disbursements and advances incurred or made
by or on behalf of it in accordance with any of the provisions of
this Indenture (including the reasonable compensation and the
expenses and disbursements of its counsel and of all agents and
other persons not regularly in its employ) except any such
expense, disbursement or advance as may arise from its negligence
or bad faith. The Company and the Partnership also covenant to
indemnify the Trustee and each predecessor Trustee for, and to
hold it harmless against, any loss, liability, tax, assessment or
other governmental charge (other than taxes applicable to the
Trustee's compensation hereunder) or expense incurred without
negligence or bad faith on its part, arising out of or in
connection with the acceptance or administration of this Indenture
or the trusts hereunder and its duties hereunder including
enforcement of this Section 6.6 and also including any liability
which the Trustee may incur as a result of failure to withhold,
pay or report any tax, assessment or other governmental charge,
and the costs and expenses of defending itself against or
investigating any claim of liability in the premises. The
obligations of the Company and the Partnership under this Section
to compensate and indemnify the Trustee and each predecessor
Trustee and to pay or reimburse the Trustee and each predecessor
Trustee for expenses, disbursements and advances shall constitute
an additional obligation hereunder and shall survive the
satisfaction and discharge of this Indenture.
To secure the Company's payment obligations in this Section
6.6, the Trustee shall have a Lien prior to the PIK Notes on all
money and property held or collected by the Trustee or any
receiver Trustee, assignee, liquidator, sequestrator, custodian or
similar officer in Trustee's stead except such money or property
held in trust to pay principal of (or premium, if any) and
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interest on particular PIK Notes. Such Lien shall survive
satisfaction and discharge of this Indenture, and will be an
additional obligation of the Company hereunder.
Section 6.7. Disqualification; Conflicting Interests.
(a) If the Trustee has or acquires any conflicting interest,
as defined in Section 310(b) of the Trust Indenture Act, it shall,
within ninety days after ascertaining that it has such conflicting
interest, either eliminate such conflicting interest or resign in
the manner and with the effect set forth in Section 6.9(b).
(b) In the event that the Trustee shall fail to comply with
the provisions of the preceding subsection (a) of this Section,
the Trustee shall, within ten days after the expiration of such
ninety day period, transmit notice of such failure to the Holders,
in the manner and to the extent provided in Section 7.3 with
respect to reports.
Section 6.8. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall
be a corporation organized and doing business under the laws of
the United States of America or any state or territory or District
of Columbia, authorized under such laws to exercise corporate
trust powers, having a combined capital and surplus of at least
$100,000,000, subject to suspension or examination by federal,
state, territorial or District of Columbia supervising or
examining authority, and having a Corporate Trust Office in The
City of New York to the extent there is such an institution
eligible and willing to serve. If such corporation publishes
reports of condition at least annually, pursuant to law or the
requirements of such supervisory or examining authority, then for
the purposes of this Section, the combined capital and surplus of
such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so
published. If at any time the Trustee shall cease to be eligible
in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereinafter
specified in this Article.
Section 6.9. Resignation and Removal; Appointment of
Successor Trustee.
(a) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article shall
become effective until the acceptance of appointment by the
successor Trustee under Section 6.10.
(b) The Trustee, or any trustee or trustees hereafter
appointed, may at any time resign by giving written notice thereof
to the Company. Upon receiving such notice of resignation, the
(64)
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Company shall promptly appoint a successor trustee by written
instrument executed by authority of the Board of Directors of the
Company, a copy of which shall be delivered to the resigning
Trustee and a copy to the successor trustee. If an instrument of
acceptance by a successor Trustee shall not have been delivered to
the Trustee within 30 days after the giving of such notice of
resignation, the resigning Trustee may, or any Holder who has been
a bona fide Holder of a PIK Note for at least six months may, on
behalf of himself and all others similarly situated, petition any
court of competent jurisdiction for the appointment of a successor
Trustee. Such court may thereupon, after such notice, if any, as
it may deem proper, appoint a successor trustee.
(c) The Trustee may be removed at any time by an Act
of the Holders of a majority in principal amount of the
Outstanding PIK Notes, delivered to the Trustee and to the
Company.
(d) If at any time:
(1) the Trustee shall fail to comply with the
provisions of Section 6.7 after written request therefor by
the Company or by any Holder who has been a bona fide Holder
of a PIK Note for at least six months, or
(2) the Trustee shall cease to be eligible under
Section 6.8 and shall fail to resign after written request
therefor by the Company or by any such Holder, or
(3) the Trustee shall become incapable of acting or
shall be adjudged a bankrupt or insolvent, or a receiver of
the Trustee or of its property shall be appointed or any
public officer shall take charge or control of the Trustee or
of its property or affairs for the purpose of rehabilitation,
conservation or liquidation, or
(4) the CCC determines that the Trustee is required to
be licensed or found qualified or suitable and the Trustee
does not become so licensed or found qualified or suitable
within such period as may be prescribed by the CCC,
then, in any such case, (i) the Company by a Board Resolution may
remove the Trustee, or (ii) subject to Section 5.14, any Holder of
a PIK Note who has been a bona fide Holder of a PIK Note for at
least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction
for the removal of the Trustee and the appointment of a successor
Trustee. Such court may thereupon, after such notice, if any, as
it may deem proper and prescribe, remove the Trustee and appoint a
successor trustee.
(65)
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(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of
Trustee for any cause, the Company, by a Board Resolution shall
promptly, upon approval of the CCC, appoint a successor Trustee
which Trustee shall be licensed or found qualified or suitable
under the New Jersey Casino Control Act. If, within one year
after such resignation, removal or incapability, or the occurrence
of such vacancy, a successor Trustee shall be appointed by Act of
the Holders of a majority in principal amount of the Outstanding
PIK Notes delivered to the Company, upon approval by the CCC, and
the retiring Trustee, the successor Trustee so appointed shall,
forthwith upon its acceptance of such appointment, become the
successor Trustee and supersede the successor Trustee appointed by
the Company. If no successor Trustee shall have been so appointed
by the Company or the Holders of the PIK Notes and accepted
appointment in the manner hereinafter provided, the Holder of any
PIK Note who has been a bona fide Holder for at least six months
may, subject to Section 5.14, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction
for the appointment of a successor Trustee.
(f) the Company shall give notice of each resignation and
each removal of the Trustee and each appointment of a successor
Trustee by mailing written notice of such event by first-class
mail, postage prepaid, to the Holders of securities as their names
and addresses appear in the PIK Notes Register. Each notice shall
include the name of the successor Trustee and the address of its
Corporate Trust Office.
Section 6.10. Acceptance of Appointment by Successor.
Every successor Trustee appointed hereunder shall execute,
acknowledge and deliver to the Company and to the retiring Trustee
an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become
effective and such successor Trustee, without any further act,
deed or conveyance, shall become vested with all the rights,
powers, trusts and duties of the retiring Trustee as if originally
named as Trustee hereunder; but, nevertheless, on the written
request of the Company or the successor Trustee, upon payment of
its charges then unpaid, such retiring Trustee shall pay over to
the successor Trustee all moneys at the time held by it hereunder
and shall execute and deliver an instrument transferring to such
successor Trustee all such rights, powers, duties and obligations.
Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Trustee all such
rights and powers. Any Trustee ceasing to act shall,
nevertheless, retain a prior claim upon all property or funds held
or collected by such Trustee to secure any amounts then due it
pursuant to the provisions of Section 6.6.
(66)
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No successor Trustee with respect to the PIK Notes shall
accept appointment as provided in this Section 6.10 unless at the
time of such acceptance such successor Trustee shall be eligible
to act as Trustee under the provisions of Trust Indenture Section
310(a) and shall have a combined capital and surplus of at least
$100,000,000 and have a Corporate Trust Office in The City of New
York.
Upon acceptance of appointment by any successor Trustee as
provided in this Section 6.10, the Company shall give notice
thereof to the Holders of the PIK Notes, by mailing such notice to
such Holders at their addresses as they shall appear on the PIK
Note Register. If the acceptance of appointment is substantially
contemporaneous with the resignation, then the notice called for
by the preceding sentence may be combined with the notice called
for by Section 6.9. If the Company fails to give such notice
within 10 days after acceptance of appointment by the successor
Trustee, the successor Trustee shall cause such notice to be given
at the expense of the Company.
Section 6.11. Merger, Consolidation or Succession to
Business.
Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which
the Trustee shall be a party, or any corporation succeeding to all
or substantially all of the corporate trust business of the
Trustee, shall be the successor of the Trustee hereunder, provided
such corporation shall be eligible under Trust Indenture Act
Section 310(a) and shall have a combined capital and surplus of at
least $100,000,000 and have a Corporate Trust Office in the City
of New York, without the execution or filing of any paper or any
further act on the part of any of the parties hereto.
In case at the time such successor to the Trustee shall
succeed to the trusts created by this Indenture any of the PIK
Notes shall have been authenticated but not delivered, any such
successor to the Trustee may adopt the certificate of
authentication of any predecessor Trustee and deliver such PIK
Notes so authenticated; and, in case at that time any of the PIK
Notes shall not have been authenticated, any successor to the
Trustee may authenticate such PIK Notes either in the name of any
predecessor hereunder or in the name of the successor Trustee; and
in all such cases such certificate shall have the full force which
it is anywhere in the PIK Notes or in this Indenture provided that
the certificate of the Trustee shall have; provided that the right
to adopt the certificate of authentication of any predecessor
Trustee or to authenticate PIK Notes in the name of any
predecessor Trustee shall apply only to its successor or
successors by merger, conversion or consolidation.
(67)
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ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND THE COMPANY
Section 7.1. The Company to Furnish Trustee Names and
Addresses of Holders.
The Company will furnish or cause to be furnished to the
Trustee:
(a) semiannually, not more than 10 days after each Regular
Record Date, a list, in such form as the Trustee may reasonably
require, of the names and addresses of the Holders as of such
Regular Record Date; and
(b) at such other times as the Trustee may request in
writing, within 30 days after receipt by the Company of any such
request, a list of similar form and content as of a date not more
than 15 days prior to the time such list is furnished;
provided, however, that if and so long as the Trustee shall be the
PIK Note Registrar, no such list need be furnished pursuant to
clause (a) or (b) of this Section 7.1.
Section 7.2. Disclosure of Names and Addresses of Holders.
Every Holder of PIK Notes, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company
nor the Trustee shall be held accountable by reason of the
disclosure of any information as to the names and addresses of the
Holders in accordance with the New Jersey Casino Control Act or
Trust Indenture Act Section 312, regardless of the source from
which such information was derived, and that the Trustee shall not
be held accountable by reason of mailing any material pursuant to
a request made under Trust Indenture Act Section 312.
Section 7.3. Reports by Trustee.
(a) Within 60 days after May 15 of each year commencing with
May 15, 1994, the Trustee shall transmit by mail to all Holders,
as their names and addresses appear in the PIK Note Register, as
provided in Trust Indenture Act Section 313(c), a brief report
dated as of such May 15 in accordance with and to the extent
required by Trust Indenture Act Section 313(a).
(b) The Trustee will provide the CCC and the Director of the
NJDGE with:
(1) copies of all notices, reports and other written
communications which the Trustee gives to Holders;
(68)
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(2) a list of Holders promptly after the original
issuance of the PIK Notes and a list of Holders eight months
and two months prior to the expiration date of each
then-current gaming Permit held by the Partnership;
(3) notice of any Event of Default under this Indenture
or of any event, occurrence or condition which, with the
giving of notice or lapse of time or both would constitute an
Event of Default, any acceleration of the Indebtedness
evidenced or secured hereby, the institution of any legal
actions or proceedings before any court or governmental
authority in respect of this Indenture or the Pledge
Agreement and any rescission, annulment or waiver in respect
of an Event of Default;
(4) notice of the removal or resignation of the Trustee
within five Business Days thereof;
(5) notice of any transfer or assignment of rights
under this Indenture (but not in respect of the PIK Notes) or
the Pledge Agreement within five Business Days thereof; and
(6) a copy of any amendment to the PIK Notes, this
Indenture or the Pledge Agreement within five Business Days
of the effectiveness thereof.
The notice specified in clause (3) above shall be in writing and,
except as set forth below, shall be given within five Business
Days after the Trustee has transmitted the notice required by
Section 6.1. In the case of any notice in respect of any Event of
Default, such notice shall be accompanied by a copy of any notice
from the Holders, or a representative thereof or the Trustee, to
the defaulting Person and, if accompanied by any such notice to
the defaulting Person, shall be given simultaneously with the
giving of any such notice to the defaulting Person. In the case
of any legal actions or proceedings, such notice shall be
accompanied by a copy of the complaint or other initial pleading
or document.
The Trustee shall in accordance with the limitations set
forth herein cooperate with the CCC and the Director of NJDGE in
order to provide the CCC and said Director with information and
documentation relevant to compliance with clause (3) above and as
otherwise required by the New Jersey Casino Control Act.
The Company will cause the Partnership to advise the Trustee
of the expiration date of the then-current gaming Permit held by
the Partnership at least 90 days prior to the expiration thereof
and the Trustee until so advised may assume that such Permit has
not expired.
(69)
<PAGE>
Section 7.4. Reports by the Company.
The Company will:
(a) file with the Trustee, in accordance with Section 10.18
hereof within 15 days after the Company is required to file the
same with the SEC, copies of the annual reports and of the
information, documents and other reports (or copies of such
portions of any of the foregoing as the SEC may from time to time
by rules and regulations prescribe) which the Company may be
required to file with the SEC pursuant to Section 13 or Section
15(d) of the Exchange Act; or, if the Company is not required to
file information, documents or reports pursuant to either of said
Sections, then it shall file with the Trustee and the SEC, in
accordance with rules and regulations prescribed from time to time
by the SEC, such of the supplementary and periodic information,
documents and reports which may be required pursuant to Section 13
of the Exchange Act in respect of a security listed and registered
on a national securities exchange as may be prescribed from time
to time in such rules and regulations;
(b) file with the Trustee and the SEC, in accordance with
the rules and regulations prescribed from time to time by the SEC,
such additional information, documents and reports with respect to
compliance by the Company with the conditions and covenants of
this Indenture as may be required from time to time by such rules
and regulations; and
(c) transmit by mail to all Holders, as their names and
addresses appear in the PIK Notes Register, within 30 days after
the filing thereof with the Trustee, in the manner and to the
extent provided in Trust Indenture Act Section 313(c), such
summaries of any information, documents and reports required to by
filed by the Company pursuant to Subsections (a) and (b) of this
Section as may be required by rules and regulations prescribed
from time to time by the SEC.
ARTICLE EIGHT
CONSOLIDATION, MERGER,
CONVEYANCE, TRANSFER OR LEASE
Section 8.1. The Company or the Partnership May Consolidate,
Merge, Etc., Only on Certain Terms.
(a) The Partnership shall not consolidate with, merge with
or into any other Person or sell, assign, convey, transfer, lease
or otherwise dispose of all or substantially all of its properties
and assets (as an entirety or substantially as an entirety in one
transaction or series of related transactions) to any other Person
or group of affiliated Persons or permit any of the Subsidiaries
(70)
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to enter into any such transaction or transactions if such
transaction or transactions, in the aggregate, would result in a
transfer of all or substantially all of the assets of the
Partnership and the Subsidiaries on a consolidated basis to any
other Person or group of affiliated Persons, unless:
(i) either (a) the Partnership shall be the continuing
Person, or (b) the Person (if other than the Partnership)
formed by such consolidation or into which the Partnership is
merged or the Person which acquires by conveyance, transfer,
lease or disposition the properties and assets of the
Partnership (the "Surviving Entity") shall be a corporation
or partnership duly organized and validly existing under the
laws of the United States of America, any state thereof or
the District of Columbia and shall, in either case, expressly
assume, by an indenture supplemental to this Indenture,
executed and delivered to the Trustee, in form satisfactory
to the Trustee, the Subordinated Guarantee and the
performance and observance of every covenant of this
Indenture and the Pledge Agreement Documents on the part of
the Partnership to be performed or observed and this
Indenture and the Pledge Agreement shall remain in full force
and effect;
(ii) immediately after giving effect to such
transaction on a pro forma basis (and treating any
Indebtedness not previously an obligation of the Partnership
or a Subsidiary which becomes the obligation of the
Partnership or any of its Subsidiaries in connection with or
as a result of such transaction as having been incurred at
the time of such transaction), the Consolidated Net Worth of
the Partnership (or the Surviving Entity if the Partnership
is not the continuing obligor under this Indenture) is at
least equal to the Consolidated Net Worth of the Partnership
immediately prior to such transaction or series of
transactions;
(iii) immediately before and immediately after giving
effect to such transaction on a pro forma basis (and treating
any Indebtedness not previously an obligation of the
Partnership or a Subsidiary which becomes the obligation of
the Partnership or any of its Subsidiaries in connection with
or as a result of such transaction as having been incurred at
the time of such transaction), (A) no Default or Event of
Default, shall have occurred and be continuing and (B) the
Partnership (or the Surviving Entity if the Partnership is
not the continuing obligor under this Indenture) after giving
effect to such transaction, could incur $1.00 of additional
Indebtedness (other than Permitted Indebtedness), under the
provisions of Section 10.7;
(71)
<PAGE>
(iv) immediately after such transaction, the
Partnership or the Surviving Entity holds all Permits
required for operation of the business of, and such entity is
controlled by a Person or entity (or has retained a Person or
entity which is) experienced in, operating casino hotels or
otherwise holds all Permits (including from the CCC) to
operate its business; and
(v) in connection with any consolidation, merger,
transfer or lease contemplated hereby, the Partnership shall
deliver, or cause to be delivered, to the Trustee, in the
form and substance reasonably satisfactory to the Trustee, an
Officers' Certificate and an Opinion of Counsel, each stating
that such consolidation, merger, transfer or lease and the
supplemental indenture in respect thereto comply with the
provisions described herein and that (A) all conditions
precedent herein provided for relating to such transaction
have been complied with and (B) the transaction shall not
impair the Lien of the Pledge Agreement, this Indenture and
the PIK Notes and the rights and powers of the Trustee and
Holders thereunder.
(b) The Company shall not consolidate with, merge with or
into any other Person or sell, assign, convey, transfer, lease or
otherwise dispose of all or substantially all of its properties
and assets (as an entirety or substantially as an entirety in one
transaction or series of related transactions) to any other Person
or group of affiliated Persons, unless:
(i) either (1) the Company shall be the continuing
Person, or (2) the Person (if other than the Company) formed
by such consolidation or into which the Company is merged or
the Person which acquires by conveyance, transfer, lease or
disposition the properties and assets of the Company (the
"Surviving Entity") shall be a corporation or partnership
duly organized and validly existing under the laws of the
United States of America, any state thereof or the District
of Columbia and shall, in either case, expressly assume, by
an indenture supplemental to this Indenture, executed and
delivered to the Trustee, in form satisfactory to the
Trustee, all the obligations of the Company under the PIK
Notes, this Indenture and the Pledge Agreement;
(ii) immediately before and immediately after giving
effect to such transaction on a pro forma basis, no Default
or Event of Default shall have occurred and be continuing;
(iii) immediately after giving effect to such transaction
on a pro forma basis (and treating any Indebtedness not
previously an obligation of the Partnership or a Subsidiary
which becomes the obligation of the Partnership or any
Subsidiary in connection with or as a result of such
(72)
<PAGE>
transaction as having been incurred at the time of such
transaction), the Consolidated Net Worth of the Company (or the
Surviving Entity if the Company is not the continuing obligor
under this Indenture) is at least equal to the Consolidated Net
Worth of the Company immediately prior to such transaction or
series of transactions;
(iv) immediately before and immediately after giving
effect to such transaction on a pro forma basis (and treating
any Indebtedness not previously an obligation of the
Partnership or a Subsidiary which becomes the obligation of
the Partnership or any of its Subsidiaries in connection with
or as a result of such transaction as having been incurred at
the time of such transaction), the Partnership or its
successor, after giving effect to such transaction, could
incur at least $1.00 of additional Indebtedness (other than
Permitted Indebtedness), under the provisions of Section
10.7;
(v) immediately after such transaction, the Company or
the Surviving Entity holds all Permits required for operation
of the business of the Company and immediately after such
transaction, the Partnership or its successor holds all
Permits required for operation of the business of, and such
entity is controlled by a Person or entity (or has retained a
Person or entity which is) experienced in, operating casino
hotels or otherwise holds all Permits (including from the
CCC) to operate its business; and
(vi) in connection with any lease contemplated hereby,
the Company shall deliver, or cause to be delivered, to the
Trustee, in the form and substance reasonably satisfactory to
the Trustee, an Officers' Certificate and an Opinion of
Counsel, each stating that such consolidation, merger,
transfer or lease and the supplemental indenture in respect
thereto comply with the provisions described herein and that
(A) all conditions precedent herein provided for relating to
such transaction have been complied with and (B) the
transaction shall not impair the Lien of the Pledge
Agreement, this Indenture and the PIK Notes and the rights
and powers of the Trustee and Holders thereunder.
Section 8.2. Successor Substituted.
Upon any consolidation or merger, or any sale, assignment,
conveyance, transfer or disposition of all or substantially all of
the properties and assets of the Company or the Partnership in
accordance with Section 8.1 (other than a lease), the successor
Person formed by such consolidation or into which the Company or
the Partnership, as the case may be, is merged or the successor
Person to which such sale, assignment, conveyance, transfer or
disposition is made shall succeed to, and be substituted for, and
(73)
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may exercise every right and power of, the Company or the
Partnership, as the case may be, under this Indenture and/or the
Subordinated Guarantee, as the case may be, and the Pledge
Agreement, with the same effect as if such successor had been
named as the Company or the Partnership, as the case may be,
herein; and thereafter, except in the case of a lease, the Company
shall be discharged from all obligations and covenants under this
Indenture, the PIK Notes and the Pledge Agreement and/or the
Subordinated Guarantee, as the case may be.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 9.1. Supplemental Indentures and Agreements without
Consent of Holders.
Without the consent of any Holders, the Company when
authorized by a Board Resolution, and the Trustee, at any time and
from time to time, may enter into one or more indentures
supplemental hereto or agreements or other instruments with
respect to any Collateral or the Pledge Agreement, in form and
substance satisfactory to the Trustee, for any of the following
purposes:
(a) to evidence the succession of another Person to the
Company, and the assumption by any such successor of the covenants
of the Company herein, in the PIK Notes and in the Pledge
Agreement;
(b) to add to the covenants of the Company for the benefit
of the Holders, or to surrender any right or power herein
conferred upon the Company, as applicable, herein, in the PIK
Notes or in the Pledge Agreement;
(c) to cure any ambiguity, to correct or supplement any
provision herein which may be defective or inconsistent with any
other provision herein or in the Pledge Agreement, or to clarify
any other provisions with respect to matters or questions arising
under this Indenture, the PIK Notes or the Pledge Agreement;
provided that, in each case, such provisions shall not adversely
affect the interests of the Holders;
(d) to comply with the requirements of the SEC in order to
effect or maintain the qualification of this Indenture under the
Trust Indenture Act, as contemplated by Section 9.5 or otherwise;
(e) to add a guarantor of the Indenture Obligations;
(f) to evidence and provide the acceptance of the
appointment of a successor Trustee hereunder; or
(74)
<PAGE>
(g) to mortgage, pledge, hypothecate or grant a security
interest in favor of the Trustee for the benefit of the Holders as
security for the payment and performance of the Indenture
Obligations, in any property or assets, including any which are
required to be mortgaged, pledged or hypothecated, or in which a
security interest is required to be granted to the Trustee
pursuant to this Indenture, the Pledge Agreement or otherwise; and
(h) to effect the subordination described in Section 6.2(j)
hereof.
The terms of any document entered into pursuant to this
Section shall be subject to prior approval, if required, of the
CCC and the NJDGE.
Section 9.2. Supplemental Indentures and Agreements with
Consent of Holders.
With the consent of the Holders of not less than a majority
in aggregate principal amount of the Outstanding PIK Notes, by Act
of said Holders delivered to the Company and the Trustee, the
Company when authorized by a Board Resolution, and the Trustee may
enter into an indenture or indentures supplemental hereto or
agreements or other instruments with respect to the Collateral or
the Pledge Agreement in form and substance satisfactory to the
Trustee for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture
or of modifying in any manner the rights of the Holders under this
Indenture, the PIK Notes or the Pledge Agreement; provided,
however, that no such supplemental indenture, agreement or
instrument shall, without the consent of the Holder of each
Outstanding PIK Note affected thereby:
(a) change the Stated Maturity of the principal of, or any
installment of interest on, any PIK Note or reduce the principal
amount thereof or the rate of interest thereon or any premium
payable upon the redemption thereof, or change the coin or
currency in which any PIK Note or any premium or the interest
thereon is payable, or impair the right to institute suit for the
enforcement of any such payment after the Stated Maturity thereof
(or, in the case of redemption, on or after the Redemption Date);
(b) modify the obligation of the Company and the Partnership
to make and consummate the Change of Control Offer under Section
10.13 (or modify any of the provisions or definitions with respect
thereto in a manner which adversely affects the rights of the
Holders);
(c) reduce the percentage in principal amount of the
Outstanding PIK Notes, the consent of whose Holders is required
for any such supplemental indenture or amendment to the Pledge
(75)
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Agreement or the consent of whose Holders is required for any
waiver (of compliance with certain provisions of this Indenture or
certain Defaults hereunder and their consequences) provided for in
this Indenture or with respect to the Subordinated Guarantee or
the Pledge Agreement;
(d) modify any of the provisions of this Section or Sections
5.13 and 10.20, except to increase any such percentage or to
provide that certain other provisions of this Indenture cannot be
modified or waived without the consent of the Holder of each PIK
Note affected thereby; or
(e) except as otherwise permitted by Article Eight, consent
to the assignment or transfer by the Company of any of its rights
and obligations under this Indenture or the Pledge Agreement; or
to the release of any Collateral from the Lien created by the
Pledge Agreement except in accordance with this Indenture and the
Pledge Agreement.
Upon the written request of the Company and the Partnership
accompanied by a copy of a Board Resolution authorizing the
execution of any such supplemental indenture, and upon the filing
with the Trustee of evidence of the consent of Holders as
aforesaid, the Trustee shall join with the Company and the
Partnership and any other obligor under the PIK Notes in the
execution of such supplemental indenture.
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed
supplemental indenture, but it shall be sufficient if such Act
shall approve the substance thereof.
The terms of any document entered into pursuant to this
Section shall be subject to prior approval, if required, of the
CCC and the NJDGE.
Section 9.3. Execution of Supplemental Indentures and
Agreements.
In executing, or accepting the additional trusts created by,
any supplemental indenture, agreement or instrument permitted by
this Article or the modifications thereby of the trusts created by
this Indenture, the Trustee shall be entitled to receive, and
shall be fully protected in relying upon, an Opinion of Counsel
and an Officers' Certificate stating that the execution of such
supplemental indenture, agreement or instrument is authorized or
permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture,
agreement or instrument which affects the Trustee's own rights,
duties or immunities under this Indenture, the Pledge Agreement or
otherwise.
(76)
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Section 9.4. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this
Article, this Indenture shall be modified in accordance therewith,
and such supplemental indenture shall form a part of this
Indenture for all purposes; and every Holder of PIK Notes
theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
Section 9.5. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this
Article shall conform to the requirements of the Trust Indenture
Act as then in effect.
Section 9.6. Reference in PIK Notes to Supplemental
Indentures.
PIK Notes authenticated and delivered after the execution of
any supplemental indenture pursuant to this Article may, and
shall, if required by the Trustee, bear a notation in form
approved by the Trustee as to any matter provided for in such
supplemental indenture. If the Company shall so determine, new
PIK Notes so modified as to conform, in the opinion of the Trustee
and the Board of Directors, to any such supplemental indenture may
be prepared and executed by the Company and any other obligor upon
the PIK Notes and authenticated and delivered by the Trustee in
exchange for Outstanding PIK Notes.
Section 9.7. Record Date.
The Company may, but shall not be obligated to, fix a record
date for the purpose of determining the Holders entitled to
consent to any supplemental indenture, agreement or instrument or
any waiver, and shall promptly notify the Trustee of any such
record date. If a record date is fixed those Persons who were
Holders at such record date (or their duly designated proxies),
and only those Persons, shall be entitled to consent to such
supplemental indenture, agreement or instrument or waiver or to
revoke any consent previously given, whether or not such Persons
continue to be Holders after such record date. The record date
shall be a date no more than 30 days prior to the first
solicitation of Holders generally in connection therewith and no
later than the date such solicitation is completed. No such
consent shall be valid or effective for more than 90 days after
such record date.
(77)
<PAGE>
ARTICLE TEN
COVENANTS
Section 10.1. Payment of Principal, Premium and Interest.
The Company will duly and punctually pay the principal of,
premium, if any, and interest on the PIK Notes in accordance with
the terms of the PIK Notes and this Indenture.
Section 10.2. Maintenance of Office or Agency.
The Company will maintain in The City of New York, an office
or agency where securities may be presented or surrendered for
payment, where PIK Notes may be surrendered for registration of
transfer or exchange and where notices and demands to or upon the
Company in respect of the PIK Notes and this Indenture may be
served. The office of the Trustee at its Corporate Trust Office
shall be such office or agency of the Company, unless the Company
shall designate and maintain some other office or agency for one
or more of such purposes. The Company will give prompt written
notice to the Trustee of any change in the location of any such
office or agency. If at any time the Company shall fail to
maintain any such required office or agency or shall fail to
furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the
Corporate Trust Office, and the Company hereby appoints the
Trustee as its agent to receive all such presentations,
surrenders, notices and demands.
The Company may from time to time designate one or more other
offices or agencies (in or outside of The City of New York) where
the PIK Notes may be presented or surrendered for any or all such
purposes, and may from time to time rescind such designation;
provided, however, that no such designation or rescission shall in
any manner relieve the Company of its obligation to maintain an
office or agency in The City of New York for such purposes. The
Company will give prompt written notice to the Trustee of any such
designation or rescission and any change in the location of any
such office or agency.
Section 10.3. Money for PIK Note Payments to be Held in
Trust.
If the Company shall at any time act as its own Paying Agent,
it will, on or before each due date of the principal of, premium,
if any, or interest on any of the PIK Notes, segregate and hold in
trust for the benefit of the Holders entitled thereto a sum
sufficient to pay the principal, premium, if any, or interest so
becoming due until such sums shall be paid to such Persons or
otherwise disposed of as herein provided, and will promptly notify
the Trustee of its action or failure so to act.
(78)
<PAGE>
If the Company is not acting as Paying Agent, the Company
will, on or before each due date of the principal of, premium, if
any, or interest on, any PIK Notes, deposit with a Paying Agent a
sum in same day funds sufficient to pay the principal, premium, if
any, or interest so becoming due, such sum to be held in trust for
the benefit of the Persons entitled to such principal, premium or
interest, and (unless such Paying Agent is the Trustee) the
Company will promptly notify the Trustee of such action or any
failure so to act.
If the Company is not acting as Paying Agent, the Company
will cause each Paying Agent other than the Trustee to execute and
deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee, subject to the provisions of this
Section, that such Paying Agent will:
(a) hold all sums held by it for the payment of the
principal of, premium, if any, or interest on the PIK Notes in
trust for the benefit of the Persons entitled thereto until such
sums shall be paid to such Persons or otherwise disposed of as
herein provided;
(b) give the Trustee notice of any Default by the Company
(or any other obligor upon the PIK Notes) in the making of any
payment of principal, premium, if any, or interest;
(c) at any time during the continuance of any such Default,
upon the written request of the Trustee, forthwith pay to the
Trustee all sums so held in trust by such Paying Agent; and
(d) acknowledge, accept and agree to comply in all aspects
with the provisions of this Indenture relating to the duties,
rights and disabilities of such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other
purpose, pay, or by Company Order direct any Paying Agent to pay,
to the Trustee all sums held in trust by the Company or such
Paying Agent, such sums to be held by the Trustee upon the same
trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to
the Trustee, such Paying Agent shall be released from all further
liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or
then held by the Company, in trust for the payment of the
principal of, premium, if any, or interest on any PIK Note and
remaining unclaimed for two years after such principal (and
premium, if any) or interest has become due and payable shall (if
held by the Trustee or any Paying Agent) be paid to the Company on
Company Request, and shall be discharged from such trust; and the
(79)
<PAGE>
Holder of such PIK Note shall thereafter, as an unsecured general
creditor, look only to the Company for payment thereof, and all
liability of the Trustee or such Paying Agent with respect to such
trust money, and all liability of the Company as trustee thereof,
shall thereupon cease; provided, however, that the Trustee or such
Paying Agent, before being required to make any such repayment,
may at the expense of the Company cause to be published once, in
The New York Times and The Wall Street Journal (national edition),
notice that such money remains unclaimed and that, after a date
specified therein, which shall not be less than 30 days from the
date of such notification or publication, any unclaimed balance of
such money then remaining will be repaid to the Company.
Section 10.4. Corporate and Partnership Existence.
Subject to Article Eight, the Company and the Partnership
will do or cause to be done all things necessary to preserve and
keep in full force and effect the respective corporate and
partnership existence, rights (charter and statutory) and
franchises of the Company and the Partnership; provided, however,
that the Company and the Partnership shall not be required to
preserve any such right or franchise if the Board of Directors of
the Company shall determine that the preservation thereof is no
longer desirable in the conduct of the business of the Company and
the Partnership and that the loss thereof is not disadvantageous
in any material respect to the Holders.
Section 10.5. Payment of Taxes and Other Claims.
The Company and the Partnership will, and will cause the
Subsidiaries to, pay or discharge or cause to be paid or
discharged, before any fine, penalty, interest or cost may be
added for nonpayment, (a) all taxes, assessments and governmental
charges levied or imposed upon the Company, the Partnership or any
Subsidiary or upon the income, profits or property of the Company,
the Partnership or any Subsidiary and (b) all lawful claims for
labor, materials and supplies, which, if unpaid might by law
become a lien upon the property of the Company, the Partnership or
any Subsidiary; provided, however, that neither the Company, the
Partnership, nor any Subsidiary shall be required to pay or
discharge or cause to be paid or discharged any such tax,
assessment, charge or claim whose amount, applicability or
validity is being contested in good faith by appropriate
proceedings properly instituted and diligently conducted and in
respect of which appropriate reserves (in the good faith judgment
of management of the Company or the Partnership) are being
maintained in accordance with Generally Accepted Accounting
Principles consistently applied.
(80)
<PAGE>
Section 10.6. Maintenance of Properties.
The Company and the Partnership will, and will cause the
Subsidiaries to, cause all properties owned by the Company, the
Partnership or any Subsidiary or used or held for use in the
conduct of the Company's or the Partnership's business or the
business of any Subsidiary to be maintained and kept in good
condition, repair and working order (excepting reasonable wear and
tear) and supplied with all necessary equipment and will cause to
be made all necessary repairs, renewals, replacements, betterments
and improvements thereof, all as in the judgment of the Company or
the Partnership may be necessary so that the business carried on
in connection therewith may be properly and advantageously
conducted at all times; provided, however, that nothing in this
Section shall prevent the Company or the Partnership from
discontinuing or allowing the discontinuance of the maintenance of
any of such properties if such discontinuance is, in the judgment
of the Company or the Partnership, desirable in the conduct of
their respective businesses or the business of any Subsidiary and
not disadvantageous in any material respect to the Holders.
Section 10.7. Limitation on Partnership Indebtedness.
The Partnership will not, and will not permit any of the
Subsidiaries to, create, incur, assume, or directly or indirectly
guarantee or in any other manner become directly or indirectly
liable for the payment of, any Indebtedness (including any
Acquired Indebtedness, but excluding Permitted Indebtedness)
unless, in the case of Indebtedness of the Partnership and
Acquired Indebtedness, (a) the Partnership's Consolidated Fixed
Charge Coverage Ratio for the four full fiscal quarters
immediately preceding such event, taken as one period (and after
giving pro forma effect to: (i) the incurrence of such
Indebtedness and (if applicable) the application of the net
proceeds therefrom, including to refinance other Indebtedness, as
if such Indebtedness were incurred and the application of such
proceeds occurred at the beginning of such four-quarter period;
(ii) the incurrence, repayment or retirement of any other
Indebtedness by the Partnership or the Subsidiaries since the
first day of such four-quarter period as if such Indebtedness were
incurred, repaid or retired at the beginning of such four-quarter
period (except that, in making such computation, the amount of
Indebtedness under any revolving credit facility shall be computed
based upon the average daily balance of such Indebtedness during
such four-quarter period); and (iii) the acquisition (whether by
purchase, merger or otherwise) or disposition (whether by sale,
merger or otherwise) of any company, entity or business acquired
or disposed of by the Partnership or the Subsidiaries, as the case
may be, since the first day of such four-quarter period, as if
such acquisition or disposition occurred at the beginning of such
four-quarter period), would have been at least equal to the ratios
(81)
<PAGE>
set forth below for any such four-quarter period ending during the
fiscal years indicated below:
Fiscal Year Ratio
1993 and 1994 1.50 to 1
1995 and thereafter 1.75 to 1
and (b) except in the case of Permitted Indebtedness, Acquired
Indebtedness or Pari Passu Indebtedness, such Indebtedness
created, incurred, assumed or guaranteed pursuant to this Section
(i) has an Average Life to Stated Maturity that exceeds the
Average Life to Stated Maturity of the PIK Notes and (ii) has a
Stated Maturity for its final scheduled principal payment later
than the Stated Maturity for the final scheduled principal payment
of the PIK Notes and (c) if such Indebtedness created, incurred,
assumed or guaranteed pursuant to this Section is Pari Passu
Indebtedness which is not Permitted Indebtedness or Acquired
Indebtedness, such Indebtedness shall have (i) an Average Life to
Stated Maturity no shorter than the remaining Average Life to
Stated Maturity of the PIK Notes and (ii) a Stated Maturity for
its final scheduled principal payment that is not earlier than the
Stated Maturity for the final scheduled principal payment of the
PIK Notes.
Section 10.8. Limitation on Liens.
Neither the Company nor the Partnership will, nor will any
Subsidiary be permitted to, create, incur, assume or suffer to
exist any Liens upon any of their respective assets, except for
(a) the Lien of the Pledge Agreement and (b) Permitted Liens.
Section 10.9. Limitation on Restricted Payments.
(a) Neither the Company nor the Partnership, nor will any
Subsidiary be permitted to, directly or indirectly:
(i) declare or pay any dividend or make any
distribution on the Company's Capital Stock or the
Partnership's Equity Interests, as the case may be (other
than dividends or distributions payable in the Company's
Qualified Capital Stock or the Partnership's Qualified Equity
Interests or in options, warrants or other rights to purchase
such Qualified Capital Stock or Qualified Equity Interests);
(ii) purchase, redeem or otherwise acquire or retire
for value any such Capital Stock or Equity Interests, or any
options, warrants or other rights to acquire such Capital
Stock or Equity Interests;
(iii) make any principal payment on or redeem,
repurchase, defease or otherwise acquire or retire for value
(82)
<PAGE>
prior to any scheduled principal payment, scheduled sinking fund
payment or maturity, any Pari Passu Indebtedness (other than
Permitted Indebtedness) or Subordinated Indebtedness of the
Partnership; or
(iv) incur, create, assume or suffer to exist any
guarantee (other than guarantees existing on the date of this
Indenture and any renewals, extensions, substitutions,
refinancings or replacements of such guarantees) of
Indebtedness of any Affiliate of the Partnership or the
Company;
(the foregoing actions set forth in clauses (i) through (iv) being
referred to as "Restricted Payments"), except that the Partnership
may apply up to 50% of its Excess Available Cash to make a
Restricted Payment after December 31, 1993 if: at the time of such
Restricted Payment and after giving effect thereto, (1) no Default
or Event of Default shall have occurred and be continuing; (2) the
Partnership's Consolidated Fixed Charge Coverage Ratio for the
four full fiscal quarters immediately preceding the Restricted
Payment, taken as one period (after giving pro forma effect to the
Restricted Payment and (if applicable) the application of the net
proceeds therefrom and any events set forth in clauses (a)(ii) and
(a)(iii) under Section 10.7) would have been at least equal to
1.75 to 1; and (3) prior to making such Restricted Payment, the
Company or the Partnership shall have used an amount equal to such
Restricted Payment to purchase either Mortgage Notes or PIK Notes
on the open market pursuant to a tender offer.
(b) Notwithstanding the foregoing, and so long as there is
no Default or Event of Default continuing, the foregoing
provisions will not prohibit:
(i) payments made pursuant to the terms of the
Services Agreement as in effect of the date hereof;
(ii) distributions on the Trump Priority Interest to
the extent permitted under the Partnership Agreement as in
effect on the date hereof;
(iii) payment of an annual bonus to Donald J. Trump
that has been approved by a majority of the Noteholder
Representatives;
(iv) dividend payments within 60 days after declaration
if such payments would comply with the foregoing provision;
(v) the repurchase, redemption or other acquisition or
retirement of any shares of any class of Capital Stock of the
Company or Equity Interest of the Partnership in exchange for
(including any such exchange pursuant to the exercise of a
conversion right or privilege in connection with which cash
(83)
<PAGE>
is paid in lieu of the issuance of fractional shares, interests or
scrip), or out of the Net Cash Proceeds of a substantially
concurrent issue and sale (other than to a Subsidiary) of, other
shares of Capital Stock of the Company or Equity Interests of the
Partnership, as the case may be (other than Redeemable Capital
Stock or Redeemable Equity Interests, as the case may be);
(vi) (I) the redemption, repayment, defeasance,
repurchase or other acquisition or retirement for value of
any Subordinated Indebtedness or Pari Passu Indebtedness of
the Partnership or the Company (other than Redeemable Equity
Interests) in exchange for or out of the net cash proceeds of
a substantially concurrent issue and sale of (A) new
Indebtedness of the Partnership or the Company or (B) Equity
Interests of the Partnership (other than Redeemable Equity
Interests) or Capital Stock of the Company (other than
Redeemable Capital Stock), provided that, with respect to
clause (A), (1) the aggregate principal amount of any such
new Indebtedness does not exceed the aggregate principal
amount of such Subordinated or Pari Passu Indebtedness (or,
if such Subordinated or Pari Passu Indebtedness provides for
an amount less than the principal amount thereof to be due
and payable upon a declaration of acceleration thereof, then
such lesser amount as of the date of determination) plus
accrued interest thereon, plus the amount of any premium or
other payment required to be paid under the terms of the
instrument governing such Subordinated or Pari Passu
Indebtedness or the amount of any premium reasonably
determined by the Partnership as necessary to accomplish such
refinancing by means of a tender offer or privately
negotiated purchase and, in each case, actually paid, plus
the amount of expenses of the Partnership incurred in
connection with such refinancing, (2) if the Indebtedness so
redeemed, repaid, defeased, repurchased, acquired or retired
is Subordinated Indebtedness, any such new Indebtedness (x)
has an Average Life to Stated Maturity that exceeds the
Average Life to Stated Maturity of the PIK Notes and a Stated
Maturity for its final scheduled principal payment that is
not earlier than the final Stated Maturity of the PIK Notes
and (y) is expressly subordinated in right of payment to the
Subordinated Guarantee at least to the same extent as the
Subordinated Indebtedness to be redeemed, repaid, defeased,
repurchased, acquired or retired and (3) if the Indebtedness
so redeemed, repaid, defeased, repurchased, acquired or
retired is Pari Passu Indebtedness, any such new Indebtedness
has an Average Life to Stated Maturity that is not less than
the Average Life to Stated Maturity of such Indebtedness and
a Stated Maturity that is not earlier than the final Stated
Maturity of such Indebtedness; or (II) the redemption,
repayment, defeasance, repurchase or other acquisition or
retirement for value of any Redeemable Equity Interests of
(84)
<PAGE>
the Partnership through the issuance of new shares of Redeemable
Equity Interests of the Partnership, provided that any such new
Redeemable Equity Interests (1) do not have a maturity or are
otherwise redeemable at the option of the holder prior to the
Stated Maturity of the PIK Notes and (2) are expressly
subordinated in right of payment to the Subordinated Guarantee at
least to the same extent as Redeemable Equity Interests to be
redeemed, substituted, repurchased or otherwise acquired or
retired for value;
(vii) the redemption of any share of any class of
Capital Stock of the Company, any Equity Interest of the
Partnership or Indebtedness of the Partnership or the
Company, if (A) the holder thereof delivers an Opinion of
Counsel to the Trustee that failure to so redeem would
subject the holder thereof to an adverse action by a Gaming
Authority (or, if applicable, a failure to act by a Gaming
Authority that is adverse to the holder) and (B) the Board of
the Partnership determines (as evidenced by a Board
Resolution delivered to the Trustee) that such adverse action
(or, if applicable, such failure to act) would be likely to
have a material adverse effect on such holder;
(viii) distributions or intercompany loans to the
Company by the Partnership to pay any tax liability of the
Company resulting from any distribution or intercompany loan;
(ix) distributions or intercompany loans by the
Partnership, pursuant to the Partnership Agreement as in
effect on the date of this Indenture, to pay (a) reasonable
general and administrative expenses, including directors'
fees and premiums for directors' and officers' liability
insurance of any corporate partner and (b) to make
indemnification payments as required by the Certificate of
Incorporation of TC/GP, Inc. or the Company or the
Partnership Agreement, each as in effect on the date of this
Indenture; and (c) to make distributions by the Partnership,
pursuant to the Partnership Agreement, to Partners in amounts
in respect of any tax year of the Partnership which do not
exceed the Partners' tax liability in respect of the
Partnership's income for such year computed as if the
Partners were each taxpayers deriving items of income, gain,
loss or deduction only from the Partnership for such year and
by applying the sum of the higher of (x) the highest federal
income tax rate imposed on individuals for such year or (y)
the highest federal income tax rate imposed on corporations
for such year, plus (z) in either case, eight percent (8%) as
the rate applicable to such year's results;
(x) guarantees by the Partnership of Indebtedness of
any special purpose financing Affiliates of the Partnership,
if the incurrence of such guarantee is made in accordance
(85)
<PAGE>
with Section 10.7 hereof and the net proceeds of any such
Indebtedness are provided to the Partnership;
(xi) distribution by the Partnership to Trump of the
Common Stock of TC/GP as contemplated by the Prospectus; and
(xii) the purchase, redemption or other acquisition of
securities representing an aggregate of 0.5% common equity
interest in the Partnership pursuant to the terms of the
Litigation Warrants and any distribution or advance by the
Partnership to TC/GP, Inc., as the survivor of the merger of
Trump's Castle Holding, Inc. with TC/GP, Inc. to fund the
payment of statutory appraisal rights perfected in connection
with such merger.
Section 10.10. Limitation on Partnership Leases.
The Partnership will not, and will not permit any
Subsidiaries to, lease as tenant or subtenant any real or personal
property (except Permitted Leases), unless the Partnership's
Consolidated Fixed Charge Coverage Ratio for the four full fiscal
quarters immediately preceding such event, taken as one period
(and after giving pro forma effect to any such lease as if the
lease was entered into at the beginning of such four-quarter
period and any events set forth in clauses (ii) and (iii) of
Section 10.7), would have been at least equal to the ratios set
forth below for any such four-quarter period ending during the
fiscal years indicated below:
Fiscal Year Ratio
1993 and 1994 1.50 to 1
1995 and thereafter 1.75 to 1.
In giving effect to the lease as of such four full fiscal
quarters, it will be assumed that the rent for such prior four
fiscal quarters was the greater of (i) the average rent over the
term of such lease and (ii) rent payable for the first four fiscal
quarters.
Section 10.11. Limitation on Preferred Stock of Subsidiaries
and Subsidiary Distributions.
(a) The Partnership will not permit any of the Subsidiaries
to, directly or indirectly, issue or sell any Preferred Stock
(except to the Partnership or a Wholly-owned Subsidiary thereof).
(b) The Partnership will not permit any of the Subsidiaries
to, directly or indirectly, (i) declare or pay any dividend or
make any distribution on the Capital Stock of such Subsidiary or
to the holders of such Subsidiary's Capital Stock (other than
dividends or distributions payable in Capital Stock of such
Subsidiary) or (ii) purchase, redeem or otherwise acquire or
retire for value any such Capital Stock; provided that this
covenant shall not prevent the payment by any Subsidiary of
dividends or other distributions to the Partnership or a
Wholly-owned Subsidiary or the redemption or repurchase by any
Subsidiary of any of its Capital Stock owned by the Partnership or
a Wholly-owned Subsidiary.
(86)
<PAGE>
Section 10.12. Limitation on Payment Restrictions Affecting
Subsidiaries.
The Partnership will not, nor will any of the Subsidiaries be
permitted to, create or otherwise cause or suffer to exist or
become effective any consensual encumbrance or restriction of any
kind on the ability of the Partnership or such Subsidiary to (a)
pay dividends or make any other distributions on the Equity
Interest of the Partnership or the Capital Stock of such
Subsidiary or pay any Indebtedness owed to the Partnership or any
other Subsidiary, (b) make any loans or advances to the
Partnership or any other Subsidiary or (c) transfer any of its
property or assets to the Partnership or any other Wholly-owned
Subsidiary, except (i) any restrictions, with respect to a
Subsidiary that is not a Subsidiary on the date of this Indenture,
in existence at the time such Person becomes a Subsidiary of the
Partnership (but not created in contemplation of such Person
becoming a Subsidiary), (ii) any restrictions with respect to a
Subsidiary imposed pursuant to an agreement which has been entered
into for the sale or disposition of all or substantially all of
the Capital Stock or assets of such Subsidiary, (iii) any
encumbrance or restriction pursuant to an agreement in effect at
or entered into on the date of this Indenture and (iv) any
restrictions existing under any agreement which refinances or
replaces the agreements containing the restrictions in clauses
(i), (ii) and (iii), provided that the terms and conditions of any
such agreement are no less favorable to holders of the PIK Notes
than those under or pursuant to the agreement evidencing the
Indebtedness refinanced.
Section 10.13. Purchase of PIK Notes upon Change of Control.
(a) If a Change of Control shall occur at any time, then
each Holder shall have the right to require that the Company or
the Partnership repurchase such Holder's PIK Notes in whole or in
part in integral multiples of $1 (and any Secondary PIK Notes in
face amount less than $1), at a purchase price (the "Change of
Control Purchase Price") in cash in an amount equal to 101% of the
principal amount thereof, plus accrued and unpaid interest
(including any Defaulted Interest), if any, to the date of
purchase, pursuant to the offer described in the following
paragraph (the "Change of Control Offer") and the other procedures
set forth in this section.
(b) Within 30 days following any Change of Control, the
Company or the Partnership shall send by first-class mail, postage
prepaid, to the Trustee and to each Holder, at his address
appearing in the PIK Note Register, a notice stating:
(87)
<PAGE>
(1) that a Change of Control has occurred and that
such Holder has the right to require the Company to
repurchase such Holder's PIK Notes at the Change of
Control Purchase Price;
(2) the circumstances and relevant facts regarding
such Change of Control (including but not limited to
information with respect to pro forma historical income,
cash flow and capitalization after giving effect to such
Change of Control);
(3) the purchase date (the "Change of Control
Purchase Date") which shall be a Business Day no earlier
than 45 days nor later than 60 days from the date such
notice is mailed (subject to applicable law);
(4) the Change of Control Purchase Price;
(5) that any PIK Notes not tendered will
continue to accrue interest;
(6) that, unless the Company or the Partnership
defaults in payment of the Change of Control Purchase
Price, any PIK Notes accepted for payment pursuant to
the Change of Control offer shall cease to accrue
interest after the Change of Control Purchase Date; and
(7) the instructions such Holder must follow in
order to have its PIK Notes repurchased (and the
instructions it must follow to withdraw its election to
have such PIK Notes repurchased) in accordance with
paragraph (c) of this Section.
Notwithstanding the foregoing, within 20 days following any Change
of Control, the Company shall notify the Trustee that a Change of
Control has occurred.
(c) Holders electing to have PIK Notes purchased will be
required to surrender such PIK Notes to the Paying Agent at the
address specified in the notice at least two Business Days prior
to the Change of Control Purchase Date. Subject to applicable
law, Holders will be entitled to withdraw their election if the
Paying Agent receives, not later than two Business Days prior to
the Change of Control Purchase Date, a telegram, telex, facsimile
transmission or letter setting forth the name of the Holder, the
principal amount and serial numbers of the PIK Notes delivered for
purchase by the Holder as to which its election is to be withdrawn
and a statement that such Holder is withdrawing his election to
have such PIK Notes purchased. Holders whose securities are
purchased only in part will be issued new PIK Notes equal in
(88)
<PAGE>
principal amount to the unpurchased portion of the PIK Notes
surrendered.
(d) Not later than the Change of Control Purchase Date, the
Company or the Partnership, as the case may be, shall (i) accept
(89)
<PAGE>
for payment PIK Notes or portions thereof tendered pursuant to the
Change of Control Offer, (ii) deposit with the Paying Agent money
sufficient, in immediately available funds by 12:00 noon (New York
City Time), to pay the purchase price of all PIK Notes or portions
thereof so tendered and (iii) deliver to the Paying Agent an
Officers' Certificate stating the PIK Notes or portions thereof
accepted for payment by the Company or the Partnership. The
Paying Agent shall promptly mail or release to Holders of PIK
Notes so accepted payment in an amount equal to the Change of
Control Purchase Price of the PIK Notes purchased from each such
Holder, and the Company shall execute and the Trustee shall
promptly authenticate and mail or release to such Holders a new
PIK Note equal in principal amount to any unpurchased portion of
the PIK Note surrendered. The Company or the Partnership will
publicly announce the results of the Change of Control Offer on
the Change of Control Purchase Date. For purposes of this Section
10.13, the Company shall choose a Paying Agent which shall not be
the Company.
(e) The Company and the Partnership will not, and will not
permit any Subsidiary to, create or permit to exist or become
effective any restriction (other than restrictions existing under
Indebtedness as in effect on the date of this Indenture) that
would materially impair the ability of the Company or the
Partnership to make a Change of Control Offer to purchase the PIK
Notes or, if such Change of Control Offer is made, to pay for the
PIK Notes tendered for purchase.
Section 10.14. Limitations on Transactions with Affiliates.
The Company and the Partnership will not, and will not permit
any of the Subsidiaries to, directly or indirectly, enter into or
suffer to exist any transaction or series of related transactions
(including, without limitation, the sale, purchase, exchange or
lease of assets, property or services) with any Affiliate of the
Company or the Partnership (other than a Wholly-owned Subsidiary)
unless (a) such transaction or series of related transactions is
on terms that are no less favorable to the Company, the
Partnership or such Subsidiary, as the case may be, than would be
available at the time of such transaction or transactions in a
comparable transaction in arm's-length dealings with an
unaffiliated third party and, with respect to a transaction or
series of related transactions involving aggregate payments equal
to or greater than $5,000,000, such transaction or series of
related transactions is approved by a majority of the Noteholder
Representatives and (b) the Company or the Partnership, as the
case may be, delivers an Officers' Certificate to the Trustee certifying that
such transaction or transactions comply with
clause (a) above. The foregoing restriction will not apply to (1)
operations under the Services Agreement as in effect on the date
of this Indenture, (2) the payment of compensation to the senior
executive officers of the Partnership (excluding Donald J. Trump)
which has been approved by a majority of the Noteholder
Representatives, (3) the payment of an annual bonus to Donald J.
Trump which has been approved by a majority of the Noteholder
Representatives, (4) the payment of director fees (other than to
Donald J. Trump) not in excess of those in effect as of the date
of this Indenture, (5) payments made pursuant to the Partnership
Agreement as in effect on the date of this Indenture, and (6)
payments pursuant to the Senior Partnership Note, the Partnership
Note or the Subordinated Partnership Note, and (7) Restricted
Payments otherwise permitted by the provisions of Section 10.9.
Section 10.15. Restriction on Transfer of Assets.
The Partnership will not sell, convey, transfer, lease or
otherwise dispose of its assets or property to any of the
Subsidiaries.
Section 10.16. Limitation on Activities.
Neither the Partnership nor any of the Subsidiaries will
engage in any business or investment activities other than those
necessary or appropriate for, incident to, in connection with or
arising out of, developing, financing, owning and operating the
Casino Hotel.
The Partnership will not, and will not permit any Subsidiary
to, make any investment other than a Permitted Investment.
The Company will not conduct any business (including having
any subsidiary) whatsoever, other than (i) to collect the amounts
due and owing under the Senior Partnership Note, the Partnership
Note and the Subordinated Partnership Note, (ii) to preserve its
rights under the Senior Partnership Note, the Partnership Note,
the Subordinated Partnership Note and the Note Mortgage and (iii)
to do or cause to be done all things necessary or appropriate to
protect the property included in the Liens of the Senior Note
Documents, the Mortgage Documents and the Pledge Agreement and any
further security and to preserve its rights therein and otherwise
to comply with its obligations under the Senior Note Indenture,
the Senior Notes, this Indenture, the PIK Notes, the Mortgage Note
Indenture and the Mortgage Notes.
The Company will not incur or otherwise become liable for any
Indebtedness (other than (v) Indebtedness with respect to the
Midlantic Term Loan, (w) the Senior Notes and any renewal,
extension, substitution, refunding, refinancing or replacement
thereof in accordance with the Senior Note Indenture, (x) the
Mortgage Notes and any renewal, extension, substitution,
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refunding, refinancing or replacement thereof in accordance with
the Mortgage Note Indenture, (y) the PIK Notes including any PIK
Notes issued as payment of interest, and any renewal, extension,
substitution, refunding, refinancing or replacement thereof in
accordance with this Indenture and (z) any intercompany loan from
the Partnership) or issue any Preferred Stock.
Section 10.17. Restriction on Payment of Services Fee.
The Company and the Partnership will not, and will not permit
any of the Subsidiaries to, pay any Services Fee under the
Services Agreement or to pay or reimburse any expenses relating
thereto if a Default or Event of Default has occurred and is
continuing. The terms of the Services Agreement cannot be amended
to increase the amounts to be paid thereunder in the aggregate or
on any particular date, or in any other manner which would be
adverse to the Company or the Partnership, and the Company will
not permit the Partnership and the Subsidiaries to enter into any
management or consulting agreement with any Affiliate relating to
the Casino Hotel other than the Services Agreement.
Section 10.18. Provision of Financial Statements.
Whether or not the Company or the Partnership is subject to
Section 13(a) or 15(d) of the Exchange Act, the Company and the
Partnership will, to the extent permitted under the Exchange Act,
file with the SEC the annual reports, quarterly reports and other
documents which the Company or the Partnership would have been
required to file with the SEC pursuant to such Section 13(a) or
15(d) if the Company or the Partnership were so subject, such
documents to be filed with the SEC on or prior to the respective
dates (the "Required Filing Dates") by which the Company or the
Partnership would have been required so to file such documents if
the Company or the Partnership were so subject. the Company will
and will cause the Partnership to in any event (x) within 15 days
of each Required Filing Date (i) transmit by mail to all Holders,
as their names and addresses appear in the PIK Note Register,
without cost to such Holders and (ii) file with the Trustee copies
of the annual reports, quarterly reports and other documents which
the Company or the Partnership would have been required to file
with the SEC pursuant to Section 13(a) or 15(d) of the Exchange
Act if the Company or the Partnership were subject to such
Sections and (y) if filing such documents by the Company or the
Partnership with the SEC is not permitted under the Exchange Act,
promptly upon written request, supply copies of such documents to
any prospective holder of the PIK Notes at the Company's cost.
Section 10.19. Statement by Officers as to Default.
(a) The Company will deliver to the Trustee, on or before a
date not more than 60 days after the end of each fiscal quarter
and not more than 120 days after the end of each fiscal year of
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the Company ending after the date hereof, a written statement
signed by the President or a Vice President, and by the Treasurer,
an Assistant Treasurer, the Comptroller, an Assistant Comptroller,
the Secretary or an Assistant Secretary of the Company, and in any
event at least one person signing such certificate shall be the
principal executive officer, principal financial officer or
principal accounting officer of the Company, setting forth the
Consolidated Net Worth of the Partnership as of the end of such
fiscal quarter and stating whether or not, after a review under
each signer's supervision of the activities of the Company during
such year and of the Company's performance under this Indenture,
to the best knowledge, based on such review, of the signers
thereof, the Company has fulfilled all its obligations under this
Indenture throughout such year, and, if there has been a Default
specifying each Default and the nature and status thereof.
(b) When any Default or Event of Default has occurred and is
continuing, or if the Trustee or any Holder or the trustee for or
the holder of any other evidence of Indebtedness of the Company,
the Company, the Partnership or any Subsidiary gives any notice or
takes any other action with respect to a claimed default (other
than with respect to Indebtedness (other than any Mortgage Debt)
in the principal amount of less than $10,000,000), the Company
shall deliver to the Trustee by registered or certified mail or by
telegram, telex or facsimile transmission followed by hard copy an
Officers' Certificate specifying such event, notice or other
action within five Business Days of its occurrence.
Section 10.20. Waiver of Certain Covenants.
The Company and the Partnership may omit in any particular
instance to comply with any covenant or condition set forth in
Sections 8.1(a)(ii) and (iii)(B) or Sections 10.5 through 10.12,
Sections 10.14 through 10.17, 10.19 and 10.21 if, before or after
the time for such compliance, the Holders of not less than a
majority in aggregate principal amount of the PIK Notes at the
time outstanding shall, by Act of such Holders, waive such
compliance in such instance with such covenant or condition, but
no such waiver shall extend to or affect such covenant or
condition except to the extent so expressly waived, and, until
such waiver shall become effective, the obligations of the Company
and the duties of the Trustee in respect of any such covenant or
condition shall remain in full force and effect.
Section 10.21. Redemption of Certain Gaming Chips.
Neither the Partnership nor the Company shall redeem any of
the casino table games gaming chips issued to Fred C. Trump in the
amount of $3,500,000 in December, 1990 (of which $2,500,000
remains outstanding on the date hereof), except as provided below
in this Section 10.21:
(92)
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(a) so long as there shall exist no event of Default
under Sections 5.01(a), 5.01(b) or 5.01(c), the Partnership
or the Company may redeem up to an aggregate of $1,000,000 of
such chips during the last four calendar months of 1993;
(b) so long as there shall exist no such Event of
Default, the Partnership or the Company may redeem all such
chips at any time after the Issuer shall have achieved EBITDA
for any period of four consecutive fiscal quarters in an
amount not less than $45,000,000; and
(c) so long as there shall exist no Event of Default,
the Partnership or the Company may redeem all such chips at
any time if approved by the unanimous consent of the
Noteholder Representatives.
Such redemptions shall be made without interest.
ARTICLE ELEVEN
REDEMPTION OF PIK NOTES
Section 11.1. Right of Redemption.
Except as otherwise provided in Sections 11.9, the PIK Notes
may be redeemed at the election of the Company, as a whole or from
time to time in part, at 100% of the principal amount thereof,
subject to the conditions in the form of PIK Note, together with
accrued and unpaid interest (including Defaulted Interest) to the
Redemption Date.
Section 11.2. Applicability of Article.
Redemption of PIK Notes at the election of the Company or the
Partnership or otherwise, as permitted or required by any
provision of this Indenture, shall be made in accordance with such
provision and this Article.
Section 11.3. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any PIK Notes pursuant
to Section 11.1 shall be evidenced by a Board Resolution and an
Officers' Certificate. In case of any redemption at the election
of the Company or Partnership or in accordance with Section 11.10
hereof, the Company or Partnership shall, at least 30 days prior
to the Redemption Date fixed by the Company or Partnership (unless
a shorter notice period shall be satisfactory to the Trustee),
notify the Trustee in writing of such Redemption Date and of the
principal amount of PIK Notes to be redeemed.
(93)
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Section 11.4. Selection by Trustee of PIK Notes to Be
Redeemed.
If less than all the PIK Notes are to be redeemed, the
particular PIK Notes or portions thereof to be redeemed shall be
selected not more than 60 days prior to the Redemption Date by the
Trustee, from the Outstanding PIK Notes not previously called for
redemption pro rata or by lot, and the amounts to be redeemed may
be equal to $1 or any integral multiple thereof and may include
Fractional Secondary PIK Notes.
The Trustee shall promptly notify the Company, the
Partnership and the PIK Note Registrar in writing of the PIK Notes
selected for redemption and, in the case of any PIK Notes selected
for partial redemption, the principal amount thereof to be
redeemed.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to redemption of PIK
Notes shall relate, in the case of any PIK Note redeemed or to be
redeemed only in part, to the portion of the principal amount of
such PIK Note which has been or is to be redeemed.
Section 11.5. Notice of Redemption.
Notice of redemption shall be given by first-class mail,
postage prepaid, mailed not less than 30 nor more than 60 days
prior to the Redemption Date, and, in the case of PIK Notes issued
after such notice of redemption is sent, that are subject to
redemption, immediately upon issuance of such PIK Notes, to each
Holder of PIK Notes to be redeemed, at his address appearing in
the PIK Note Register.
All notices of redemption shall state:
(a) the Redemption Date;
(b) the Redemption Price;
(c) if less than all Outstanding PIK Notes are to be
redeemed, the identification of the particular PIK Notes to be
redeemed;
(d) in the case of a PIK Note to be redeemed in part, the
principal amount of such PIK Note to be redeemed and that after
the Redemption Date upon surrender of such PIK Note, a new PIK
Note or PIK Notes in the aggregate principal amount equal to the
unredeemed portion thereof will be issued;
(e) that PIK Notes called for redemption must be surrendered
to the Paying Agent to collect the Redemption Price;
(94)
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(f) that on the Redemption Date the Redemption Price will
become due and payable upon each such PIK Note or portion thereof,
and that (unless the Company or the Partnership shall default in
payment of the Redemption Price) interest thereon shall cease to
accrue on and after said date;
(g) the place or places where such PIK Notes are to be
surrendered for payment of the Redemption Price;
(h) the CUSIP number, if any, relating to such PIK Notes;
and
(i) if applicable, that such redemption is a result of the
sale of Equity Interests or Capital Stock as set forth in Section
11.10.
Notice of redemption of PIK Notes to be redeemed at the
election of the Company or the Partnership shall be given by the
Company or, at the Company's written request, by the Trustee, in
the name and at the expense of the Company.
The notice if mailed in the manner herein provided shall be
conclusively presumed to have been given, whether or not the
Holder receives such notice. In any case, failure to give such
notice by mail or any defect in the notice to the Holder of any
PIK Note designated for redemption as a whole or in part shall not
affect the validity of the proceedings for the redemption of any
other PIK Note.
Section 11.6. Deposit of Redemption Price.
On or prior to any Redemption Date, the Company or the
Partnership shall deposit with the Trustee or with a Paying Agent
(or, if the Company or the Partnership is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 10.3) an
amount of money in same day funds sufficient to pay the Redemption
Price of, and (except if the Redemption Date shall be an Interest
Payment Date) accrued interest on, all the PIK Notes or portions
thereof which are to be redeemed on that date.
Section 11.7. PIK Notes Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the PIK
Notes so to be redeemed shall, on the Redemption Date, become due
and payable at the Redemption Price therein specified and from and
after such date (unless the Company or the Partnership shall
default in the payment of the Redemption Price and accrued
interest) such PIK Notes shall cease to bear interest. Upon
surrender of any such PIK Note for redemption in accordance with
said notice, such PIK Note shall be paid by the Company or the
Partnership at the Redemption Price together with accrued and
unpaid interest (including Defaulted Interest) to the Redemption
Date; provided, however, that installments of interest whose
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Stated Maturity is on or prior to the Redemption Date shall be
payable to the Holders of such PIK Notes, or one or more
Predecessor PIK Notes, registered as such on the relevant Regular
Record Dates according to the terms and the provisions of Section
3.7.
If any PIK Note called for redemption shall not be so paid
upon surrender thereof for redemption, the principal and premium,
if any, shall, until paid, bear interest from the Redemption Date
at the rate borne by such PIK Note.
Section 11.8. PIK Notes Redeemed in Part.
Any PIK Note which is to be redeemed only in part shall be
surrendered to the Paying Agent at the office or agency maintained
for such purpose pursuant to Section 10.2 (with, if the Company,
the Partnership, the PIK Notes Registrar or the Trustee so
requires, due endorsement by, or a written instrument of transfer
in form satisfactory to the Company, the Partnership, the PIK Note
Registrar or the Trustee duly executed by, the Holder thereof or
such Holder's attorney duly authorized in writing), and the
Company shall execute, and the Trustee shall authenticate and
deliver to the Holder of such PIK Note without service charge, a
new PIK Note or PIK Notes, of any authorized denomination as
requested by such Holder in aggregate principal amount equal to,
and in exchange for, the unredeemed portion of the principal of
the PIK Note so surrendered that is not redeemed.
Section 11.9. PIK Notes Redeemed Pursuant to Casino Control
Act.
Notwithstanding the provisions of this Article Eleven, if the
CCC does not waive the qualification requirements as to any Holder
(whether the record owner or beneficial owner) and requires that
such Holder be qualified under the New Jersey Casino Control Act,
then, in such event, such Holder must qualify under such Act. If
a Holder does not so qualify, the Holder must dispose of its
interest in the PIK Notes, within 30 days after the Company's
receipt of notice of such finding (or within such earlier date as
the CCC may require), or the Company may redeem such PIK Notes at
the lower of the Outstanding Amount and the Fair Market Value (as
certified to the Trustee) of such PIK Notes.
Section 11.10. PIK Notes Redeemed Pursuant to a Total
Taking or Casualty.
In the event of a Total Taking or Casualty, the Company or
the Partnership shall, subject to the rights of holders of the
Senior Indebtedness, within 60 days after receipt of any
condemnation or insurance proceeds but within one year after the
occurrence of such Total Taking or Casualty, redeem the PIK Notes
at 100% of the principal amount thereof, in each case, together
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with accrued and unpaid interest through the Redemption Date, in
accordance with this Article Eleven.
Section 11.11. Redemption of PIK Notes in the Event of an
Equity Offering.
In the event of any sale by the Partnership of an Equity
Interest in the Partnership or by a Specified Holder (as defined
below) of a direct or indirect Equity Interest in the Partnership
(any of the foregoing, an "Equity Offering"), the Partnership or
the Company shall, within 30 days after the receipt of the
proceeds thereof, use 35% of the net proceeds of such Equity
Offering to redeem Outstanding PIK Notes, at 100% of their
principal amount, together with accrued and unpaid interest to the
Redemption Date; provided, however, that the foregoing shall not
apply to (i) any sale of any direct or indirect Equity Interest in
the Partnership pursuant to any stock option plan, restricted
stock award or similar equity-based compensation plan or
arrangement applicable, directly or indirectly, to the Partnership
or (ii) any sale by any holder of Litigation Warrants or any
Equity Interest in the Partnership acquired pursuant to the
exercise thereof. The term "Specified Holder" shall mean (A) an
entity, the primary assets of which (determined as a majority of
its assets as shown on such entity's consolidated balance sheet)
at such time are Equity Interests or Capital Stock in (1) the
Partnership or (2) the Partnership and either or both of Trump Taj
Mahal Associates and Trump Plaza Associates (and shall exclude any
entity which acquired an Equity Interest in the Partnership
through a public offering) or (B) Donald J. Trump or any entity
owned, directly or indirectly, by Donald J. Trump if, after giving
effect to such sale Donald J. Trump would own beneficially
directly or indirectly at least 50% of the outstanding Equity
Interests or Capital Stock in the Partnership.
In addition, in the event of an Equity Offering, the Company
may redeem all the Outstanding PIK Notes at the applicable
Redemption Prices for mandatory redemptions specified in the form
of PIK Note, in each case, together with accrued and unpaid
interest through the Redemption Date.
ARTICLE TWELVE
COLLATERAL PROVISIONS
Section 12.1. Pledge Agreement.
(a) In order to secure the due and punctual payment of the
Indenture Obligations, the Company, the Partnership and the
Trustee have entered into or will enter into, as the case may be,
the Pledge Agreement to create the security interest thereunder
and for related matters. The Company and the Partnership covenant
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and agree that they have full right, power and lawful authority to
assign, pledge, transfer and grant a security interest in the
property constituting the Collateral, in the manner and form done
in the Pledge Agreement or intended to be done, and that (a) each
will forever warrant and defend the title to the same against the
claims of all Persons whatsoever in each case free and clear of
all Liens whatsoever (other than Permitted Liens), (b) each will
execute, acknowledge and deliver to the Trustee such further
assignments, transfers, assurances or other instruments as the
Trustee may reasonably require or request and (c) each will do or
cause to be done all such acts and things as may be necessary or
proper, or as may be reasonably required by the Trustee, to assure
and confirm to the Trustee its interest in the Collateral, or any
part thereof, as from time to time constituted, and the right,
title and interest in and to the Pledge Agreement so as to render
the same available for the security and benefit of this Indenture
and of the PIK Notes.
(b) Each Holder, by accepting a PIK Note, consents and
agrees to all of the terms and provisions of the Pledge Agreement,
as the same may be amended from time to time pursuant to the
provisions of the Pledge Agreement and this Indenture, and
authorizes and directs the Trustee to enter into the Pledge
Agreement and to perform its obligations and exercise its rights
thereunder in accordance therewith; provided, however, that if any
provision of the Pledge Agreement limits, qualifies, or conflicts
with the duties imposed by the provisions of the Trust Indenture
Act, the Trust Indenture Act controls.
(c) As amongst the Holders, the Collateral as now or
hereafter constituted shall be held for the equal and ratable
benefit of the Holders without preference, priority or distinction
of any thereof over any other by reason of difference in time of
issuance, sale or otherwise, as security for the Indenture
Obligations.
Section 12.2. Recording, Opinion of Counsel, Etc.
The Company and the Partnership will cause, at their own
expense, this Indenture, the PIK Notes, the Pledge Agreement, and
all amendments or supplements thereto, to be registered, recorded
and filed and/or re-recorded and/or re-filed and/or renewed in
such manner and in such place or places, if any, as may be
required by law in order fully to preserve and protect the Lien of
the Pledge Agreement and all parts of the Collateral and to
effectuate and preserve the security of the Holders and all rights
of the Trustee.
(98)
<PAGE>
The Company and the Partnership shall furnish to the Trustee:
(a) promptly after the execution and delivery of this
Indenture and the Pledge Agreement or other instrument of further
assurance, an Opinion of Counsel stating that, in the opinion of
such Counsel, the Pledge Agreement and other instruments of
further assurance have been properly recorded, endorsed,
registered and filed, so as to make effective the Lien intended to
be created thereby, and reciting the details of such action or
stating that, in the opinion of such Counsel, no such action is
necessary to make such Lien effective; and
(b) within 60 days after November 30 in each year beginning
with the year 1994, an Opinion of Counsel, dated as of such date,
either stating that, in the opinion of such Counsel, such action
has been taken with respect to the recording, registering, filing,
re-recording, re-registering and re-filing of this Indenture and
the Pledge Agreement, financing statements, supplemental
indentures, continuation statements or other instruments of
further assurance as is necessary to maintain the Lien of the
Pledge Agreement, and reciting the details of such action, or
stating that, in the opinion of counsel, no such action prior to
November 30 of the subsequent year is necessary to maintain such
Lien.
The Trustee shall hold in its possession the Pledge
Agreement, except as it from time to time may be required for
actions, suits or proceedings relating to the Pledge Agreement or
for the purpose of enforcing or realizing upon any right or value
thereby represented. The Trustee may, from time to time, in its
sole discretion, for the purpose of convenient location of the
Pledge Agreement, appoint one or more agents to hold physical
custody, for the account of the Trustee, of the Pledge Agreement.
Section 12.3. Release of Collateral.
To the extent applicable, the Company, the Partnership and
each other obligor on the PIK Notes shall cause Trust Indenture
Act ss 314(d) relating to the release of property or securities
from the Lien of the Pledge Agreement to be complied with.
Section 12.4. Trust Indenture Act Requirements.
The release of any Collateral from the terms of the Pledge
Agreement or the release of, in whole or in part, the Lien created
by the Pledge Agreement, will not be deemed to impair the security
interests thereunder in contravention of the provisions of this
Indenture if and to the extent the Collateral or Lien is released
pursuant to, and in accordance with, the Pledge Agreement and
pursuant to, and in accordance with, the terms hereof. As set
forth in Section 12.3, to the extent applicable, without
limitation, the Company, the Partnership and each other obligor on
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the PIK Notes shall cause Trust Indenture Act ss 314(d) relating to
the release of property or securities from the Lien of the Pledge
Agreement to be complied with. Any certificate or opinion
required by Trust Indenture Act ss 314(d) may be made by two
officers of the Company, except in cases which Trust Indenture Act
ss 314(d) requires that such certificate or opinion be made by an
independent Person.
Section 12.5. Suits to Protect the Collateral.
Subject to the provisions of the Pledge Agreement, (i) the
Trustee may, in its sole discretion and without the consent of the
Holders, take all actions it deems necessary or appropriate in
order to (a) enforce any of the terms of the Pledge Agreement and
(b) collect and receive any and all amounts payable in respect of
the obligations of the Company and (ii) the Trustee shall have
power to institute and to maintain such suits and proceedings as
it may deem expedient to prevent any impairment of the Collateral
by any acts which may be unlawful or in violation of the Pledge
Agreement or this Indenture, including such suits and proceedings
as the Trustee may deem expedient to preserve or protect its
interests and the interests of the Holders in the Collateral and
in the principal, interest, issues, profits, rents, revenues and
other income arising therefrom (including power to institute and
maintain suits or proceedings to restrain the enforcement of or
compliance with any legislative or other governmental enactment,
rule or order that may be unconstitutional or otherwise invalid if
the enforcement of, or compliance with, such enactment, rule or
order would impair the security interests or be prejudicial to the
interests of the Holders or the Trustee).
Section 12.6. Determinations Relating to Collateral.
In the event (i) the Trustee shall receive any written
request from the Company or the Partnership under Pledge Agreement
for consent or approval with respect to any matter or thing
relating to any Collateral or the Company's or the Partnership's
obligations with respect thereto or (ii) there shall be due to or
from the Trustee under the provisions of the Pledge Agreement any
material performance or the delivery of any material instrument or
(iii) the Trustee shall become aware of any nonperformance by the
Company of any covenant or any breach of any representation or
warranty of the Company set forth in the Pledge Agreement, then,
in each such event, the Trustee shall be entitled to hire experts,
consultants, agents and attorneys to advise the Trustee on the
manner in which the Trustee should respond to such request or
render any requested performance or respond to such nonperformance
or breach. The Trustee shall be fully protected in the taking of
any action recommended or approved by any such expert, consultant,
agent or attorney or agreed to by the Holders of a majority in
principal amount of the Outstanding securities pursuant to Section
5.12.
(100)
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Section 12.7. Impairment of Security Interest.
The Company and the Partnership will not, and will not permit
any Subsidiary to, take or omit to take any action which
reasonably might or would have the result of affecting or
impairing the security interests with respect to the Collateral in
contravention of this Indenture, and the Company shall not grant
to, or suffer to exist in favor of, any Person any interest
whatsoever in the Collateral except as permitted by the Pledge
Agreement or this Indenture. The Company and the Partnership will
not enter into any agreement or instrument that by its terms
expressly requires that the proceeds received from the sale of any
Collateral be applied to repay, redeem or otherwise retire any
Indebtedness of any Person other than as set forth in Article
Twelve hereof and in the Pledge Agreement.
Section 12.8. Release upon Termination of the Company's
Obligations.
(a) In the event that the Company delivers an Officers'
Certificate certifying that all of the Indenture Obligations have
been indefeasibly satisfied and discharged by complying with the
provisions of Article Thirteen or Sections 4.2 or 4.3, the Trustee
shall deliver to the Company at the Company's expense a notice
stating that the Trustee, subject to Section 4.6, on behalf of the
Holders, disclaims and gives up any and all rights it has in or to
the Collateral, and any rights it has under the Pledge Agreement,
and on demand of and at the expense of the Company or the
Partnership, the Trustee shall also execute and deliver proper
instruments acknowledging the satisfaction and discharge of this
Indenture and the Pledge Agreement and, upon and after the receipt
by the Company of such notice, the Trustee shall not be deemed to
hold the security interests in the Collateral for the benefit of
the Holders and shall deliver to the Company any Collateral in its
possession.
(b) Any release of any portion of the Collateral made
strictly in compliance with the provisions of this section 12.8
shall not be deemed to impair the security interests in the
Collateral created by the Pledge Agreement in contravention of the
provisions of this Indenture.
Section 12.9. Authorization of Receipt of Funds by the
Trustee Under the Pledge Agreement.
The Trustee is authorized to receive any funds for the
benefit of Holders of the PIK Notes distributed under the Pledge
Agreement, and to make further distributions of such funds to the
Holders according to the provisions of this Indenture.
(101)
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ARTICLE THIRTEEN
SATISFACTION AND DISCHARGE
Section 13.1. Satisfaction and Discharge of Indenture.
This Indenture shall cease to be of further effect (except as
to surviving rights of registration of transfer or exchange of PIK
Notes herein expressly provided for) and the Trustee, on demand of
and at the expense of the Company or the Partnership, shall
execute and deliver proper instruments acknowledging satisfaction
and discharge of this Indenture and the Pledge Agreement, when
(a) either
(1) all PIK Notes theretofore authenticated and
delivered (other than (i) PIK Notes which have been
destroyed, lost or stolen and which have been replaced or
paid as provided in Section 3.6 and (ii) PIK Notes for whose
payment funds have theretofore been deposited in trust or
segregated and held in trust by the Company and thereafter
repaid to the Company or discharged from such trust, as
provided in Section 10.3) have been delivered to the Trustee
for cancellation; or
(2) all such PIK Notes not theretofore delivered to the
Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated
Maturity within one year, or
(iii) are to be called for redemption within one
year under arrangements satisfactory to the Trustee for
the giving of notice of redemption by the Trustee in the
name, and at the expense, of the Company and the
Partnership,
and the Company, or the Partnership, in the case of subclause
(2)(i), (ii) or (iii) above, has irrevocably deposited or
caused to be deposited with the Trustee as trust funds in
trust an amount in cash in U.S. Dollars or U.S. Government
Obligations sufficient to pay and discharge the entire
Indebtedness on such PIK Notes not theretofore delivered to
the Trustee for cancellation, including principal of,
premium, if any, and accrued interest on such PIK Notes, at
such Stated Maturity or Redemption Date;
(b) the Company and the Partnership have paid or caused to
be paid all other sums payable hereunder by the Company or the
Partnership; and
(102)
<PAGE>
(c) the Company and the Partnership has delivered to the
Trustee an Officers' Certificate and an Opinion of Counsel each
stating that (i) all conditions precedent herein provided for
relating to the satisfaction and discharge of this Indenture have
been complied with and (ii) such satisfaction and discharge will
not result in a breach or violation of, or constitute a default
under, this Indenture or any other material agreement or
instrument to which the Company or the Partnership is a party or
by which it is bound.
Notwithstanding the satisfaction and discharge of this Indenture,
the obligations of the Company and the Partnership to the Trustee
under Section 6.6 and, if money shall have been deposited with the
Trustee pursuant to subclause (2) of Subsection (a) of this
Section, the obligations of the Trustee under Section 4.2 and the
last paragraph of Section 10.3 shall survive.
Section 13.2. Application of Trust Money.
Subject to the provisions of the last paragraph of Section
10.3, all funds deposited with the Trustee pursuant to Section
13.1 Shall be held in trust and applied by it, in accordance with
the provisions of the PIK Notes and this Indenture, to the
payment, either directly or through any Paying Agent (including
the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal of,
premium, if any, and interest on the PIK Notes for whose payment
such funds have been deposited with the Trustee.
ARTICLE FOURTEENTH
SUBORDINATED GUARANTEE
Section 14.1. Subordinated Partnership Guarantee.
For value received, the Partnership in accordance with this
Article Fourteen and, subject to Section 3.11 hereof and the next
succeeding sentence, hereby absolutely, unconditionally and
irrevocably guarantees to the Trustee and the Holders, as if the
Partnership were the principal debtor, the punctual payment and
performance when due of all Indenture Obligations (which for
purposes of this Subordinated Guarantee shall also be deemed to
include all commissions, fees, charges, costs and other expenses
(including reasonable legal fees and disbursements of one counsel)
arising out of or incurred by the Trustee or the Holders in
connection with the enforcement of this Guarantee). The
Partnership liability hereunder is subordinated to the Senior
Indebtedness.
(103)
<PAGE>
Section 14.2. Continuing Guarantee; No Right of Set-Off;
Independent Obligation.
(a) This Subordinated Guarantee shall be a continuing
guarantee of the payment and performance of all Indenture
Obligations and shall remain in full force and effect until the
payment in full of all of the Indenture Obligations and shall
apply to and secure any ultimate balance due or remaining unpaid
to the Trustee or the Holders; and this Subordinated Guarantee
shall not be considered as wholly or partially satisfied by the
payment or liquidation at any time or from time to time of any sum
of money for the time being due or remaining unpaid to the Trustee
or the Holders. The Partnership covenants and agrees to comply
with all obligations, covenants, agreements and provisions
applicable to it in this Indenture including those set forth in
Article Eight. Without limiting the generality of the foregoing,
the Partnership's liability shall extend to all amounts which
constitute part of the Indenture Obligations and would be owed by
the Company under this Indenture and the PIK Notes but for the
fact that they are unenforceable, reduced, limited, impaired,
suspended or not allowable due to the existence of a bankruptcy,
reorganization or similar proceeding involving the Company.
(b) The Partnership hereby guarantees that the Indenture
Obligations will be paid to the Trustee without set-off or
counterclaim or other reduction whatsoever (whether for taxes,
withholding or otherwise) in lawful currency of the United States
of America.
(c) The Partnership guarantees that the Indenture
obligations shall be paid strictly in accordance with their terms
regardless of any law, regulation or order now or hereafter in
effect in any jurisdiction affecting any of such terms or the
rights of the Holders of the PIK Notes.
(d) The Partnership's liability to pay or perform or cause
the performance of the Indenture Obligations under this
Subordinated Guarantee shall arise forthwith after demand for
payment or performance by the Trustee has been given to the
Partnership in the manner prescribed in Section 1.6 hereof.
(e) Except as provided herein, the provisions of this
Article Fourteen cover all agreements between the parties hereto
relative to this Guarantee and none of the parties shall be bound
by any representation, warranty or promise made by any Person
relative thereto which is not embodied herein; and it is
specifically acknowledged and agreed that this Guarantee has been
delivered by the Partnership free of any conditions whatsoever and
that no representations, warranties or promises have been made to
the Partnership affecting its liabilities hereunder, and that the
Trustee shall not be bound by any representations, warranties or
(104)
<PAGE>
promises now or at any time hereafter made by the Company to the
Partnership.
Section 14.3. Subordinated Guarantee Absolute.
The obligations of the Partnership hereunder are independent
of the obligations of the Company under the PIK Notes and this
Indenture and a separate action or actions may be brought and
prosecuted against the Partnership whether or not an action or
proceeding is brought against the Company and whether or not the
Company is joined in any such action or proceeding. The liability
of the Partnership hereunder is irrevocable, absolute and
unconditional (except as provided in Section 14.1 above) and (to
the extent permitted by law) the liability and obligations of the
Partnership hereunder shall not be released, discharged,
mitigated, waived, impaired or affected in whole or in part by:
(a) any defect or lack of validity or enforceability in
respect of any indebtedness or other obligation of the
Company or any other Person under this Indenture or the
PIK Notes, or any agreement or instrument relating to
any of the foregoing;
(b) any grants of time, renewals, extensions, indulgences,
releases, discharges or modifications which the Trustee
or the Holders may extend to, or make with, the Company,
the Partnership or any other Person, or any change in
the time, manner or place of payment of, or in any other
term of, all or any of the Indenture Obligations, or any
other amendment or waiver of, or any consent to or
departure from, this Indenture or the PIK Notes,
including any increase or decrease in the Indenture
Obligations;
(c) the taking of security from the Company, the Partnership
or any other Person, and the release, discharge or
alteration of, or other dealing with, such security;
(d) the occurrence of any change in the laws, rules,
regulations or ordinances of any jurisdiction by any
present or future action of any governmental authority
or court amending, varying, reducing or otherwise
affecting, or purporting to amend, vary, reduce or
otherwise affect, any of the Indenture Obligations and
the obligations of the Partnership hereunder;
(e) the abstention from taking security from the Company,
the Partnership or any other Person or from perfecting,
continuing to keep perfected or taking advantage of any
Lien of the Pledge Agreement;
(105)
<PAGE>
(f) any loss, diminution of value or lack of enforceability
of any PIK Note received from the Company, the
Partnership or any other Person, and including any other
guarantees received by the Trustee;
(g) any other dealings with the Company, the Partnership or
any other Person, or with any PIK Note;
(h) the Trustee's or the Holder's acceptance of compositions
from the Company or the Partnership;
(i) the application by the Holders or the Trustee of all
monies at any time and from time to time received from
the Company, the Partnership or any other Person on
account of any indebtedness and liabilities owing by the
Company or the Partnership to the Trustee or the
Holders, in such manner as the Trustee or the Holders
deems best and the changing of such application in whole
or in part and at any time or from time to time, or any
manner of application of collateral, or proceeds
thereof, to all or any of the Indenture Obligations, or
the manner of sale of any Collateral;
(j) the release or discharge of the Company or the
Partnership or of any other guarantor of the PIK Notes
or of any Person liable directly as surety or otherwise
by operation of law or otherwise for the PIK Notes,
other than an express release in writing given by the
Trustee, on behalf of the Holders, of the liability and
obligations of the Partnership hereunder;
(k) any change in the name, business, capital structure or
governing instrument of the Company or the Partnership
or any refinancing or restructuring of any of the
Indenture Obligations;
(l) the sale of the Company's or the Partnership's business
or any part thereof;
(m) any merger or consolidation, arrangement or
reorganization of the Company, the Partnership, any
Person resulting from the merger or consolidation of the
Company or the Partnership with any other Person or any
other successor to such Person or merged or consolidated
Person or any other change in the corporate existence,
structure or ownership of the Company or the
Partnership;
(n) the insolvency, bankruptcy, liquidation, winding-up,
dissolution, receivership or distribution of the assets
of the Company or its assets or any resulting discharge
of any obligations of the Company (whether voluntary or
(106)
<PAGE>
involuntary) or of the Partnership of the loss of corporate
existence;
(o) any arrangement or plan of reorganization affecting the
Company or the Partnership;
(p) any other circumstance (including any statute of
limitations) that might otherwise constitute a defense
available to, or discharge of, the Company or the
Partnership; or
(q) any modification, compromise, settlement or release by
the Trustee, or by operation of law or otherwise, of the
Indenture Obligations or the liability of the Company or
any other obligor under the PIK Notes, or of any
Collateral, in whole or in part, and any refusal of
payment by the Trustee, in whole or in part, from any
other obligor or other guarantor in connection with any
of the Indenture obligations, whether or not with notice
to, or further assent by, or any reservation of rights
against, the Partnership.
Section 14.4. Right to Demand Full Performance.
In the event of any demand for payment or performance by the
Trustee from the Partnership hereunder, the Trustee or the Holders
shall have the right to demand its full claim and to receive all
dividends or other payments in respect thereof until the Indenture
Obligations have been paid in full, and the Partnership shall
continue to be liable hereunder for any balance which may be owing
to the Trustee or the Holders by the Company under this Indenture
and the PIK Notes. The retention by the Trustee or the Holders of
any PIK Note, prior to the realization by the Trustee or the
Holders of its rights to such PIK Note upon foreclosure thereon,
shall not, as between the Trustee and the Partnership, be
considered as a purchase of such PIK Note, or as payment,
satisfaction or reduction of the Indenture Obligations due to the
Trustee or the Holders by the Company or any part thereof.
Section 14.5. Waivers.
(a) The Partnership hereby expressly waives (to the extent
permitted by law) notice of the acceptance of this Subordinated
Guarantee and notice of the existence, renewal, extension or the
non-performance, non-payment, or non-observance on the part of the
Company of any of the terms, covenants, conditions and provisions
of this Indenture or the PIK Notes or any other notice whatsoever
to or upon the Company or the Partnership with respect to the
Indenture Obligations. The Partnership hereby acknowledges
communication to it of the terms of this Indenture and the PIK
Notes and all of the provisions therein contained and consents to
and approves the same. The Partnership hereby expressly waives
(107)
<PAGE>
(to the extent permitted by law) diligence, presentment, protest
and demand for payment.
(b) Without prejudice to any of the rights or recourses
which the Trustee or the Holders may have against the Company, the
Partnership hereby expressly waives (to the extent permitted by
law) any right to require the Trustee or the Holders to:
(i) initiate or exhaust any rights, remedies or
recourse against the Company, the Partnership
or any other Person;
(ii) value, realize upon, or dispose of any PIK
Note of the Company or any other Person held
by the Trustee or the Holders; or
(iii) initiate or exhaust any other remedy which the
Trustee or the Holders may have in law or
equity;
before requiring or becoming entitled to demand payment from the
Partnership under this Guarantee.
Section 14.6. The Partnership Remains Obligated in Event the
Company Is No Longer Obligated to Discharge Indenture Obligations.
It is the express intention of the Trustee and the
Partnership that if for any reason the Company has no legal
existence, is or becomes under no legal obligation to discharge
the Indenture Obligations owing to the Trustee or the Holders by
the Company or if any of the Indenture Obligations owing by the
Company to the Trustee or the Holders becomes irrevocable from the
Company by operation of law or for any reason whatsoever, this
Guarantee and the covenants, agreements and obligations of the
Partnership contained in this Article Fourteen shall nevertheless
be binding upon the Partnership, as principal debtor, until such
time as all such Indenture Obligations have been paid in full to
the Trustee and all Indenture Obligations owing to the Trustee or
the Holders by the Company have been discharged, or such earlier
time as Section 4.2 shall apply to the PIK Notes and the
Partnership shall be responsible for the payment thereof to the
Trustee or the Holders upon demand.
Section 14.7. Waiver of Rights.
The Partnership agrees (to the extent permitted by law) that
it hereby waives and will not in any manner whatsoever claim or
take the benefit or advantage of, any rights of reimbursement,
exoneration, contribution, indemnity or subrogation (whether
contractual, under Section 509 of Title Eleven of the United
States Code, under common law or otherwise) or any similar rights
or "claims" (as such term is defined under Title Eleven of the
(108)
<PAGE>
United States Code), against the Company or any Subsidiary arising
from the existence of, or performance by, the Partnership under
this Subordinated Guarantee.
Section 14.8. Subordinated Guarantee Is in Addition to Other
Security.
This Subordinated Guarantee shall be in addition to and not
in substitution for any other guarantees or other security which
the Trustee may now or hereafter hold in respect of the Indenture
Obligations owing to the Trustee or the Holders by the Company and
(except as may be required by law) the Trustee shall be under no
obligation to marshal in favor of the Partnership any other
guarantees or other security or any moneys or other assets which
the Trustee may be entitled to receive or upon which the Trustee
or the Holders may have a claim.
Section 14.9. Release of Security Interests.
Without limiting the generality of the foregoing and except
as otherwise provided in this Indenture, the Partnership hereby
consents and agrees, to the fullest extent permitted by applicable
law, that the rights of the Trustee hereunder, and the liability
of the Partnership hereunder, shall not be affected by any and all
releases for any purpose of Collateral, if any, from the Liens and
security interests hereafter created by any mortgage documents and
that this Subordinated Guarantee shall continue to be effective or
be reinstated, as the case may be, if at any time any payment of
any of the Indenture Obligations is rescinded or must otherwise be
returned by the Trustee upon the insolvency, bankruptcy or
reorganization of the Company or otherwise, all as though such
payment had not been made.
Section 14.10. No Bar to Further Actions.
Except as provided by law, no action or proceeding brought or
instituted under Article Fourteen and this Subordinated Guarantee
and no recovery or judgment in pursuance thereof shall be a bar or
defense (other than a defense of payment) to any further action or
proceeding which may be brought under Article Fourteen and this
Subordinated Guarantee by reason of any further default or
defaults under Article Fourteen and this Guarantee or in the
payment of any of the Indenture Obligations owing by the Company.
Section 14.11. Failure to Exercise Rights Shall Not Operate
As a Waiver; No Suspension of Remedies.
(a) No failure to exercise and no delay in exercising, on
the part of the Trustee or the Holders, any right, power,
privilege or remedy under this Article Fourteen and this
Subordinated Guarantee shall operate as a waiver thereof, nor any
single or partial exercise of any right, power, privilege or
(109)
<PAGE>
remedy preclude any other or further exercise thereof, or the
exercise of any other rights, powers, privileges or remedies. The
rights and remedies herein provided for are cumulative and not
exclusive of any rights or remedies provided in law or equity.
(b) Nothing contained in this Article Fourteen shall limit
the right of the Trustee or the Holders to take any action to
accelerate the maturity of the PIK Notes pursuant to Article Five
or to pursue any rights or remedies hereunder or under applicable
law.
Section 14.12. Successors and Assigns.
All terms, agreements and conditions of this Article Fourteen
shall extend to and be binding upon the Partnership and its
successors and permitted assigns and shall enure to the benefit of
and may be enforced by the Trustee and its successors and assigns;
provided, however, that the Partnership may not assign any of its
rights or obligations hereunder other than in accordance with
Article Eight.
(110)
<PAGE>
Section 14.13. Release of Subordinated Guarantee.
Concurrently with the payment in full of all of the Indenture
Obligations, the Partnership shall be released from and relieved
of its obligations under this Article Fourteen. Upon the delivery
by the Company to the Trustee of an Officers' Certificate and, if
requested by the Trustee, an Opinion of Counsel to the effect that
the transaction giving rise to the release of this Subordinated
Guarantee was made by the Company in accordance with the
provisions of this Indenture and the PIK Notes, the Trustee shall
execute any documents reasonably required in order to evidence the
release of the Partnership from its obligations under this
Subordianted Guarantee and the Pledge Agreement. If any of the
Indenture Obligations are revived and reinstated after the
termination of this Subordinated Guarantee, then all of the
obligations of the Partnership under this Subordinated Guarantee
shall be revived and reinstated as if this Subordinated Guarantee
had not been terminated until such time as the Indenture
Obligations are paid in full, and the Partnership shall enter into
an amendment to this Subordinated Guarantee, reasonably
satisfactory to the Trustee, evidencing such revival and
reinstatement.
This Subordinated Guarantee shall terminate upon a merger or
consolidation of the Partnership with the Company, in accordance
with Article Eight.
Section 14.14. Execution of Subordinated Guarantee.
To evidence the Subordinated Guarantee, the Partnership
hereby agrees to execute a guarantee substantially in the form set
forth in Section 2.5, to be endorsed on each PIK Note
authenticated and delivered by the Trustee and that this Indenture
shall be executed on behalf of the Partnership by one of its
general partners or one of its Vice Presidents. The signature of
any of these representatives on the PIK Notes may be manual or
facsimile.
If an officer whose signature is on this Indenture no longer
holds that office at the time the Trustee authenticates a PIK Note
on which this Subordinated Guarantee is endorsed, such
Subordinated Guarantee shall be valid nevertheless.
ARTICLE FIFTEENTH
HOLDERS' MEETINGS
Section 15.1. Holders' Meetings Called by Trustee.
The Trustee may at any time call a meeting of Holders to take
any action authorized to be taken by or behalf of the Holders of
any specified percentage in aggregate principal amount of the PIK
Notes under any provision of this Indenture or under applicable
law, to be held at such time and at such place in the City of New
York, or such other place as the Trustee shall determine.
Published Notice of every meeting of Holders, setting forth the
time and the place of such meeting and in general terms the action
proposed to be taken at such meeting, shall be given in each city
in which the principal of any of the PIK Notes, shall be payable,
or, if all the PIK Notes Outstanding shall be registered PIK
Notes, such notice shall be sufficiently given if mailed first
class, postage prepaid, and certified or registered if the Company
so elects, to each registered Holder of the PIK Notes at the last
address of such Holder appearing on the PIK Note Register, such
publication or mailing, as the case may be, to be made not less
than 30 nor more than 180 days prior to the date fixed for the
meeting.
Section 15.2. Holders' Meetings Called by the Company or
Holders.
In case at any time the Company by a Board Resolution, or the
Holders of at least 10% in aggregate principal amount of the PIK
Notes affected by the business to be submitted to the meeting at
the time outstanding, shall, by written request setting forth in
reasonable detail the action proposed to be taken at the meeting,
have requested the Trustee to call a meeting of the Holders to
take any action authorized to be taken hereunder and the Trustee
(111)
<PAGE>
shall not have made the first publication or a mailing of the
notice of such meeting within 20 days after receipt of such
request, then the Company or the Holders in the amount specified
may determine the time and place in the City of New York, or such
other place for such meeting and may call such meeting by
publishing or mailing notice thereof as provided in Section 15.1.
Section 15.3. Attendance and Voting.
To be entitled to vote at any meeting of Holders a person
must (a) be a registered Holder of one or more PIK Notes or (b) be
a person appointed by an instrument in writing as proxy by a
Holder of one or more PIK Notes. The only persons who shall be
entitled to be present or to speak at any meeting of Holders shall
be the persons entitled to vote at such meeting and their counsel,
representatives of the Trustee and its counsel and representatives
of the Company and its counsel.
Section 15.4. Conduct of Meetings; Adjournment.
Notwithstanding any other provisions of this Indenture, the
Trustee may make such reasonable regulations as it may deem
advisable for any meeting of Holders in regard to the appointment
and duties of inspectors of votes, the submission and examination
of proxies, certificates and other evidence of the right to vote,
and such other matters concerning the conduct of the meeting as it
shall think fit.
The Trustee shall, by an instrument in writing, appoint a
temporary chairman of the meeting, unless the meeting shall have
been called by the Company or by Holders as provided in Section
15.2, in which case the Company or the Holders calling the
meeting, as the case may be, shall in like manner appoint a
temporary chairman. A permanent chairman and a permanent
secretary of the meeting shall be elected by vote of the Holders
of a majority in principal amount of the PIK Notes represented at
the meeting and entitled to vote.
At any meeting each Holder or proxy shall be entitled to one
vote for each $1,000 principal amount of PIK Notes held or
represented by him; provided, however, that no vote shall be cast
or counted at any meeting in respect of any PIK Note ruled by the
chairman of the meeting to be not Outstanding. The chairman of
the meeting shall have no right to vote other than by virtue of
PIK Notes held by him or instruments in writing as aforesaid duly
designating him as the person to vote on behalf of other Holders.
Any meeting of Holders duly called pursuant to the provisions of
Section 15.1 or 15.2 may be adjourned from time to time by the
Holders of a majority in principal amount of the PIK Notes
represented at the meeting and entitled to vote whether or not a
quorum is present, and the meeting may be held as so adjourned
without further notice.
(112)
<PAGE>
At any meeting of Holders, the presence of persons holding or
representing PIK Notes in an aggregate principal amount sufficient
to take action on the business for the transaction of which such
meeting was called shall constitute a quorum.
Section 15.6. Manner of Voting.
The vote upon any resolution submitted to any meeting of
Holders shall be by written ballots on which shall be subscribed
the signatures of the Holder or proxies and the serial numbers of
the PIK Notes held or represented by them. The permanent chairman
of the meeting shall appoint two inspectors of votes who shall
count all votes cast at the meeting for or against any resolution
and who shall make and file with the secretary of the meeting
their verified written reports in duplicate of all votes cast at
the meeting. A record in duplicate of the proceedings of each
meeting of Holders shall be prepared by the secretary of the
meeting and there shall be attached to said record of the original
reports of the inspectors of votes on any vote by ballot taken
thereat and affidavits by one or more persons having knowledge of
the facts setting forth a copy of the notice of the meeting and
showing that said notice was published or mailed as provided in
section 15.1. The record shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting
and one of the duplicates shall be delivered to the Company and
the other to the Trustee to be preserved by the Trustee, the
latter to have attached thereto or be accompanied by the ballots
voted at the meeting.
Any record so signed and verified shall be conclusive
evidence of the matters therein stated.
* * * * * *
(113)
<PAGE>
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, and their respective corporate
seals to be hereunto affixed and attested, all as of the day and
year first above written.
TRUMP'S CASTLE FUNDING, INC.
as Issuer
By______________________________
Name:
Title:
Attest:_______________________
Name:
Title: [SEAL]
FIRST BANK NATIONAL ASSOCIATION,
as Trustee
By______________________________
Name:
Title:
[SEAL]
TRUMP'S CASTLE ASSOCIATES,
as Guarantor
By______________________________
General Partner
(114)
<PAGE>
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the ____ day of December, 1993, before me personally came
Donald J. Trump, to me known, who, being by me duly sworn, did
depose and say that he resides at 721 Fifth Avenue, New York, New
York; that he is President of Trump's Castle Funding, Inc., one of
the corporations described in and which executed the above
instrument; that he knows the corporate seal of such corporation;
that the seal affixed to said instrument is such corporate seal;
that it was so affixed pursuant to authority of the Board of
Directors of such corporation; and that he signed his name thereto
pursuant to like authority.
(NOTARIAL SEAL)
_________________________________
(115)
<PAGE>
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the ____ day of December, 1993, before me personally came
Donald J. Trump, to me known, who, being by me duly sworn, did
depose and say that he resides at 721 Fifth Avenue, New York, New
York; that he is the managing general partner of Trump's Castle
Associates, the partnership described in and which executed the
above instrument; and he acknowledged that he signed and delivered
the same on behalf of such partnership as his voluntary act and
deed and as the voluntary act and deed of such partnership,
pursuant to authority of the board of directors of said
partnership, and that he received a true copy of the within
instrument on behalf of said general partnership.
(NOTARIAL SEAL)
_________________________________
(116)
<PAGE>
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the _______ day of December, 1993, before me personally
came Frank P. Leslie, to me known, who, being by me duly sworn,
did depose and say that he is an Assistant Vice President of First
Bank National Association, the corporation described in and which
executed the above instrument; that he knows the corporate seal of
such corporation; that the seal affixed to said instrument is such
corporate seal; that it was so affixed pursuant to authority of
the board of directors of such corporation; and that he signed his
name thereto pursuant to like authority.
(NOTARIAL SEAL)
_________________________________
(117)
<PAGE>
<PAGE>
Schedule I
Existing Indebtedness
<PAGE>
Schedule II
Existing Loans, Advances and Investments
<PAGE>
Schedule III
Existing Leases
A. GROUND LEASES
Schedule IV
Existing Liens
PLEDGE AGREEMENT
dated as of December 28, 1993
by
TRUMP'S CASTLE FUNDING, INC.,
a New Jersey corporation, as Pledgor
to
FIRST BANK NATIONAL ASSOCIATION,
as Trustee under the PIK Note Indenture, as Pledgee
Prepared by_________________________
John A. Ritsher, Esq.
Ropes & Gray
One International Place
Boston, Massachusetts 02110
(617) 951-7000
<PAGE>
PLEDGE AGREEMENT
This PLEDGE AGREEMENT (the "Pledge") dated as of December
28, 1993 from TRUMP'S CASTLE FUNDING, INC., a New Jersey
corporation ("Pledgor"), to FIRST BANK NATIONAL ASSOCIATION, a
national banking association, as Trustee under the Indenture, as
defined below ("Pledgee") and as successor trustee to First
Fidelity Bank, National Association.
W I T N E S S E T H:
WHEREAS, Pledgor, a wholly-owned subsidiary of Trump's
Castle Associates, a New Jersey general partnership (the
"Partnership"), functions as the Partnership's financing vehicle
by advancing to the Partnership the proceeds of various issues of
Pledgor's debt securities against receipt of the Partnership's
promissory notes; and
WHEREAS, pursuant to a recapitalization of Pledgor
consummated on December 28, 1993, the outstanding 9.5 Mortgage
Bonds due 1998 of Pledgor were exchanged for (i) $242,141,304
aggregate principal amount of Pledgor's 11 3/4% Mortgage Notes
due 2003 (the "Mortgage Notes"), issued pursuant to an Indenture
of even date herewith entered into by the Pledgor, as issuer, the
Partnership, as guarantor, and the Pledgee, as Indenture Trustee
(the "Mortgage Note Indenture") and (ii) up to $50,499,476
aggregate principal amount of Pledgor's Increasing Rate
Subordinated Pay-in-Kind Notes due 2005 (the "PIK Notes") (the
recipients of the PIK Notes being referred to herein as the
"Holders"), issued pursuant to a separate indenture (the "PIK
Note Indenture"), and concurrently therewith the Partnership in
exchange for the surrender of its prior promissory notes issued
to the Pledgor two new notes, each dated concurrently herewith,
in the principal amounts of $242,141,304 (the "Partnership
Note"), and $50,499,476 (the "Subordinated Partnership Note"),
respectively, the Subordinated Partnership Note, and terminated
the Old Mortgage Documents; and
WHEREAS, pursuant to the provisions of the recapitalization
and in order to secure the payment of the PIK Notes and all other
payments due to the Holders thereof or the Trustee under the PIK
Note Indenture, the Pledgor desires to enter into this Pledge
Agreement for the purpose of assigning to the Trustee all of its
right, title and interest in and to the Subordinated Partnership
Note; and
WHEREAS, certain terms defined in the PIK Note Indenture are
used herein with the meanings there provided.
(1)
<PAGE>
NOW, THEREFORE, THIS PLEDGE
FURTHER WITNESSETH:
Pledgor, for good and valuable consideration, the receipt of
which is hereby acknowledged, does hereby sell, assign and
transfer unto Pledgee and unto its successors and to its assigns
forever, for its benefit and for the benefit of the Holders, and
does hereby grant to Pledgee a security interest in and to all of
Pledgor's estate, right, title and interest in, to and under any
and all of the following described property, rights and interests
(collectively, the "Pledged Collateral"):
GRANTING CLAUSE FIRST
All right, title and interest of Pledgor in and to the
Subordinated Partnership Note, including all renewals, extensions
and modifications of the same, and, without limiting the
generality of the foregoing, the present, continuing and future
right to make claim for, collect or cause to be collected,
receive or cause to be received directly from the Partnership
thereunder, all payments of principal, interest and other sums of
money payable thereunder.
TO HAVE AND TO HOLD all of said properties, rights and
interests unto Pledgee and its successors and assigns forever.
THIS Pledge FURTHER WITNESSETH, that Pledgor hereby agrees
and covenants with Pledgee as follows:
ARTICLE I
PARTICULAR COVENANTS OF PLEDGOR
Section 1.01. Performance of Covenants. Pledgor
represents, warrants and covenants that it is duly authorized to
enter into this Pledge, and to grant and convey a lien on and
security interest in the Pledged Collateral to Pledgee in the
manner and to the extent herein set forth and that all action on
its part required for the execution and delivery of this Pledge
has been duly and effectively taken.
Section 1.02. Further Action Required.
(a) Pledgor covenants that it will, from time to time,
execute and deliver such further instruments and take such
further actions as may be required to carry out the purposes of
this Pledge.
(b) Pledgor hereby appoints Pledgee as its lawful attorney-
in-fact (such power being coupled with an interest) in the name
of Pledgor or Pledgee or both to execute any instruments or to
(2)
<PAGE>
take any actions to enforce all rights, powers and remedies of
Pledgor under or pursuant to the Pledged Collateral.
(c) Nothing contained herein shall limit the rights of
Pledgee contained in the PIK Note Indenture.
ARTICLE II
OBLIGATIONS OF PLEDGEE
Section 2.01. Continuing Obligations.
(a) Pledgee shall have no obligation, duty or liability with
respect to the Pledged Collateral or any of them (other than
those specifically assumed in its capacity as Trustee pursuant to
the PIK Note Indenture).
(b) Pledgor shall at all times remain liable to observe and
perform all of its covenants and obligations, if any, under the
Pledged Collateral, and does hereby agree to indemnify and hold
harmless Pledgee, its successors and assigns, from any liability,
loss, damage or expense it or they may incur under the Pledged
Collateral or by reason of this Pledge.
ARTICLE III
PAYMENTS
Section 3.01. Payments. All Revenues (as hereinafter
defined) due and to become due under or pursuant to the Pledged
Collateral shall be paid by the Partnership directly to Pledgee
at the address set forth in Section 6.02 hereof.
Section 3.02. Acknowledgment. The Partnership hereby joins
in the execution of this Pledge to acknowledge (i) the assignment
by Pledgor to Pledgee of Pledgor's right, title and interest in,
to and under the Pledged Collateral, (ii) the Partnership's
agreement to make payment of all Revenues under the Pledged
Collateral directly to Pledgee at the address set forth in this
Pledge, and (iii) the right of Pledgee to exercise or enforce in
its own name, in the name of Pledgor, or both, all of the rights,
powers and remedies of Pledgor in, to and under the Pledged
Collateral.
Section 3.03. Revenues. As used herein, the term
"Revenues" shall mean (a) all amounts paid or payable by the
Partnership under the Subordinated Partnership Note, and (b) the
net proceeds realized upon or as a result of the enforcement of
the security interest granted in the Pledged Collateral or under
(3)
<PAGE>
this Pledge or upon or as a result of the exercise of any right
or remedy under this Pledge.
Section 3.04. Confirmation. Pledgor hereby agrees, and the
Partnership hereby acknowledges, that the Partnership may rely
exclusively on Pledgee's directive that Pledgee is entitled to
take action under this Pledge.
ARTICLE IV
DEFAULT PROVISIONS AND REMEDIES
Section 4.01. Enforcements of Remedies.
(a) Upon the occurrence and continuance of any Event of
Default (as such term is defined in the PIK Note Indenture; each
an "Event of Default"), Pledgee may (upon the direction of the
Holders or, if the rights of the Holders would be prejudiced by
any delay in taking such action, without the direction of the
Holders), at its option, (i) proceed directly to protect and
enforce its rights and the rights of any Holders under this
Pledge or pursuant to the Pledged Collateral by such suits,
actions or special proceedings in equity or at law, or by
proceedings in the office of any board or officer having
jurisdiction, either for the specific performance of any covenant
or agreement contained herein, or in the Pledged Collateral or in
aid of execution of any power granted herein or pursuant to the
Pledged Collateral or for the enforcement of any proper legal or
equitable remedy, subject to statutory and other legal
requirements, as Pledgee shall deem most effective to protect and
enforce such rights, and Pledgor hereby appoints Pledgee as its
lawful attorney-in-fact (such power being coupled with an
interest) in the name of Pledgor or Pledgee or both to effectuate
such remedies; or (ii) instruct, direct and cause Pledgor to
effectuate the foregoing on behalf of and for the benefit of
Pledgee and the Holders, it being further understood that the
Partnership joins in the execution of this Pledge in order to
acknowledge its agreement to promptly and duly execute and
deliver any and all documents and take any and all actions
required by Pledgee in order to permit Pledgee to obtain the
benefits of this Pledge, as aforesaid.
(b) Upon the occurrence and continuance of any such Event of
Default, Pledgee shall (upon the direction of the Holders or, if
the rights of the Holders would be prejudiced by any delay in
taking such action, without the direction of the Holders) be
entitled to sue for, enforce payment of and receive any and all
amounts then and at any time remaining due from Pledgor or the
Partnership for principal and interest on the Subordinated
Partnership Note, with interest on overdue payments of such
principal, as set forth in the Subordinated Partnership Note,
(4)
<PAGE>
from the date of such Event of Default to the date of such
payment, together with any and all fees, costs and expenses of
collection (including reasonable attorneys' fees and court
costs), subject to statutory and other legal requirements.
(c) Regardless of the occurrence of an Event of Default,
Pledgee may institute and maintain or cause in the name of
Pledgor or Pledgee or both to be instituted and maintained such
suits and proceedings as Pledgee may be advised by its counsel
shall be necessary and appropriate to prevent any impairment of
the Pledged Collateral, or any of them, and to protect its
interests in the Pledged Collateral, and in the revenues and
other income arising therefrom, including power to institute and
maintain proceedings to restrain the enforcement or compliance
with any governmental enactment, rule or order that may be
unconstitutional or otherwise invalid, if the enforcement of or
compliance with such enactment, rule or order would impair the
security hereunder or would be materially prejudicial to the
interest of the Pledgee.
(d) Nothing contained in this Article IV is intended to
grant Pledgee any greater remedies and rights than those allowed
to Pledgor in the Pledged Collateral. In the event or any
conflict between the remedies and rights contained in any of the
Pledged Collateral and the remedies and rights contained in this
Article IV, the remedies and rights set forth in the applicable
Assigned Property shall govern.
ARTICLE V
DISCHARGE OF PLEDGE
Section 5.01. Discharge of Pledge. If Pledgor shall pay or
cause to be paid, or there shall otherwise be paid, to Pledgee
and/or the Holders, all amounts required to be paid by Pledgor
pursuant to the PIK Note Indenture and the PIK Notes, and the
conditions precedent for the PIK Note Indenture to cease,
determine and become null and void (except for any surviving
rights of transfer or exchange of the PIK Notes and any right to
receive payments of principal and interest as provided in Article
Thirteen or Section 10.3 of the PIK Note Indenture) in accordance
with Section 5.01 of the PIK Note Indenture, Pledgee shall
promptly cancel and discharge of record this Pledge and any
financing statements filed in connection herewith and execute and
deliver to Pledgor and to the Partnership all such instruments as
may be appropriate to evidence such discharge and satisfaction of
any lien or liens, and Pledgee shall pay over or deliver to
Pledgor all other moneys and securities held by it pursuant to
this Pledge, which are not required for the payment of (a)
principal and redemption price, if applicable, of and interest
on, the PIK Notes and (b) and all other amounts required to be
(5)
<PAGE>
paid by Pledgor pursuant to the PIK Note Indenture and the PIK
Notes.
ARTICLE VI
MISCELLANEOUS PROVISIONS
Section 6.01. Binding Successors and Assigns. All of the
covenants, stipulations, obligations and agreements contained
in this Pledge shall be binding upon and inure to the benefit of
Pledgor, Pledgee and the Partnership and their respective
successors and assigns.
Section 6.02. Notices.
Any request, notice, demand, authorization, direction,
request or other instrument authorized or required by this Pledge
to be given to or filed with Pledgor, Pledgee, or the Partnership
(collectively "Notices") shall be deemed given when either (i)
delivered by hand (including by overnight courier) or (ii) two
days after sending by registered or certified mail, postage
prepaid, addressed as follows:
(i) To Pledgee:
First Bank National Association
c/o First Trust National Association
180 East Fifth Street
St. Paul, Minnesota 55010
Attention: Corporate Trust and Agency Group
(ii) To Pledgor:
Trump's Castle Funding, Inc.
Trump Castle Casino Resort by the Bay
Brigantine Boulevard at Huron Avenue
Atlantic City, New Jersey 08401
Attention: Chief Executive Officer
and
The Trump Organization, Inc.
725 Fifth Avenue
New York, New York 10022
Attention: Donald J. Trump
(6)
<PAGE>
(iii) To the Partnership:
Trump's Castle Associates
Trump Castle Casino Resort by the Bay
Brigantine Boulevard at Huron Avenue
Atlantic City, New Jersey 08401
Attention: Chief Executive Officer
and
The Trump Organization, Inc.
725 Fifth Avenue
New York, New York 10022
Attention: Donald J. Trump
and
Willkie Farr & Gallagher
One Citicorp Center
153 East 53rd Street
New York, New York 10022
Attention: Thomas M. Cerabino, Esq.
(b) By Notice to the Partnership, Pledgor and or Pledgee,
given as provided above, any party may designate additional or
substitute addresses for Notices, which shall, notwithstanding
Subsection (a) above, be deemed given when received.
Section 6.04. Partial Invalidity. In case any one or more
of the provisions of this Pledge shall for any reason be held to
be illegal or invalid, such illegality or invalidity shall not
affect any other provision of this Pledge, but this Pledge shall
be construed and enforced at the time as if such illegal or
invalid provisions had not been contained herein or therein, nor
shall such illegality or invalidity or any application thereof
affect any legal and valid application herein or thereof from
time to time.
Section 6.05. Applicable Law. This Pledge shall be
governed by and construed under the internal laws of the State of
New Jersey, without giving effect to the principles of conflicts
of law.
Section 6.06. No Amendments. For so long as the PIK Notes
shall remain outstanding, this Pledge Agreement may not be
modified, amended or terminated except in accordance with the
provisions of the PIK Note Indenture.
(7)
<PAGE>
Section 6.07. Casino Control Act. Each of the provisions
of this Pledge is subject to and shall be enforced in compliance
with the provisions of the New Jersey Casino Control Act.
Section 6.08. Limitation on Liability. Notwithstanding
anything herein or any other agreement, document, certificate,
instrument, statement or omission referred to below to the
contrary, the Partnership and the Pledgor are liable hereunder
only to the extent of the assets of the Partnership and the
interest of the Pledgor in the Pledged Collateral which are
secured by the Partnership's assets and no other person or
entity, including, but not limited to, any partner, officer,
representative, committee or committee member of the Partnership
or any partner therein or of any Affiliate (as defined in the
Indenture) of the Partnership or any incorporator, officer,
director or shareholder of the Pledgor, of any corporate partner
of the Partnership, or of any corporate Affiliate of the
Partnership, or any Affiliate or controlling person or entity of
any of the foregoing, or any agent, employee or lender of any of
the foregoing or any successor, personal representative, heir or
assign of any of the foregoing, in each case past, present or as
they may exist in the future, shall be liable in any respect
(including without limitation for the breach of any
representation, warranty, covenant, agreement, condition or
indemnification or contribution undertaking contained herein or
therein) under, in connection with, arising out of or relating to
this Pledge, or any other agreement, document, certificate,
instrument or statement (oral or written) related to, executed or
to be executed, delivered or to be delivered, or made or to be
made, or any omission made or to be made, in connection with any
of the foregoing or any of the transactions contemplated in any
such agreement, document, certificate, instrument or statement.
Any agreement, document, certificate, statement or other
instrument to be executed simultaneously with, in connection
with, arising out of or relating to this Pledge or any other
agreement, document, certificate, statement or instrument
referred to above, or any agreement, document, certificate,
statement or instrument contemplated hereby shall contain
language mutatis mutandis to this paragraph and, if such language
is omitted, shall be deemed to contain such language.
6.09. Indemnification. Pledgor agrees to indemnify
Pledgee for, and to hold it harmless against, any loss,
liability or expense incurred without negligence or bad faith
on its part, arising out of or in connection with the
acceptance or administration of this Pledge, including the costs
and expenses of defending itself against any claim, or with the
exercise or performance of any of its powers or duties hereunder.
(8)
<PAGE>
<PAGE>
IN WITNESS WHEREOF, Pledgor, Pledgee, and the Partnership
have executed this Pledge as of the date first above written.
TRUMP'S CASTLE FUNDING, INC.
Attest:_____________________ By: _________________________
Secretary Donald J. Trump, President
TRUMP'S CASTLE ASSOCIATES,
a New Jersey general partnership
Attest:_____________________ By: _________________________
Secretary Donald J. Trump,
its Managing Partner
FIRST BANK NATIONAL ASSOCIATION,
as Trustee under the PIK Note
Indenture
Attest:_____________________ By: _________________________
Assistant Secretary Title:
(9)
<PAGE>
<PAGE>
STATE OF NEW YORK ss.:
COUNTY OF NEW YORK
BE IT REMEMBERED, that on _____________, 1993, before me,
the subscriber, personally appeared DONALD J. TRUMP, the Managing
Partner of TRUMP'S CASTLE ASSOCIATES, a New Jersey general
partnership, who, I am satisfied, is the person who has signed
the within instrument on behalf of such general partnership, and
I having first made known to him the contents thereof he
thereupon acknowledged that he signed and delivered the said
instrument in his capacity as such Managing Partner aforesaid,
and that the within instrument is the voluntary act and deed of
said general partnership.
______________________________
Notary Public
(11)
<PAGE>
STATE OF NEW YORK ss.:
COUNTY OF NEW YORK
BE IT REMEMBERED, that on ______________, 1993, before me,
the subscriber, personally appeared DONALD J. TRUMP, the
President of TRUMP'S CASTLE FUNDING, INC., the corporation named
in the within document, who, I am satisfied, is the person who
has signed the within instrument; and I having first made known
to him the contents thereof he acknowledged that he signed,
sealed with the corporate seal and delivered the said instrument
as such officer aforesaid; that the within instrument is the
voluntary act and deed of the corporation, made by virtue of
authority from its Board of Directors.
______________________________
Notary Public
(10)
<PAGE>
<PAGE>
STATE OF NEW YORK ss.:
COUNTY OF NEW YORK
BE IT REMEMBERED, that on December___, 1993, before me, the
subscriber, personally appeared Frank P. Leslie, an Assistant
Vice President of FIRST BANK NATIONAL ASSOCIATION, the
corporation named in the within document, who, I am satisfied, is
the person who has signed the within instrument; and I having
first made known to him the contents thereof he acknowledged that
he signed, sealed with the corporate seal and delivered the said
instrument as such officer aforesaid; that the within instrument
is the voluntary act and deed of the corporation, made by virtue
of authority from its Board of Directors.
_________________________
Notary Public
(12)
<PAGE>
SUBORDINATED PARTNERSHIP NOTE
$50,499,476 December 28, 1993
FOR VALUE RECEIVED, TRUMP'S CASTLE ASSOCIATES, a general
partnership existing under the laws of the State of New Jersey
(the "Partnership"), hereby promises to pay to the order of
TRUMP'S CASTLE FUNDING, INC., a corporation duly organized and
existing under the laws of the State of New Jersey ("TCFI", such
corporation and any subsequent holder of this Note being herein
referred to as the "Payee"), having its principal office at
Trump's Castle Casino Resort, Brigantine Boulevard at Huron
Avenue, Atlantic City, New Jersey 08401, on NOvember 15, 2005,
or, if earlier, any other Maturity Date (as such term is defined
in the Indenture hereinafter referred to) of the PIK Notes (as
hereinafter defined), a principal sum equal to the aggregate
principal amount of TCFI's Increasing Rate Subordinated Pay-in-
Kind Notes due 2005 (the "PIK Notes") issued by TCFI pursuant to
that certain Indenture dated as of the date hereof (the
"Indenture"), among TCFI, as Issuer, the Partnership, as
Guarantor, and First Bank National Association, a national
banking association, as Trustee (such national banking
association, and any successor pursuant to the terms of the
Indenture, being referred to as the "Trustee"), Outstanding on
such Maturity Date and to pay interest on the unpaid balance
hereof at the rate of 7% per annum from the date hereof through
September 30, 1994 and thereafter at the rate of 13 7/8% per
annum to such Maturity Date in semiannual installments of
interest on each May 15 and November 15 (each an "Interest
Payment Date"), commencing on May 15, 1994, in an amount in cash
equal to the amount of interest payable on the PIK Notes, if any,
which TCFI elects to pay in cash pursuant to Section 3.7 of the
Indenture. All obligations of the Partnership under this Note
are expressly subordinated to the prior satisfaction in full of
the Partnership's obligations under the Senior Partnership Note
and the Partnership Note.
The principal amount of this Note as of the date hereof is
$50,499,476 and shall hereafter be automatically increased from
time to time by amounts equal to the aggregate principal amount
of any additional PIK Notes which TCFI may at any time elect to
issue in lieu of the payment in cash of interest on the then
Outstanding PIK Notes pursuant to Section 3.7 of the Indenture.
Payments of principal and interest on this Note shall be
made at the address of the Payee set forth above, or at such
(1)
<PAGE>
other address as the Payee may from time to time designate in
writing. Interest will be computed on the basis of a 360-day
year of twelve 30-day months. Principal and interest shall be
paid in money of the United States that at the time of payment is
legal tender for public and private debts.
All terms in this Note defined in the Indenture shall have
the same meaning herein as therein, unless the context requires
otherwise.
1. This Note shall be prepaid (or, as described below,
shall be deemed to have been prepaid) (i) in connection with any
mandatory redemption or optional redemption or the defeasance or
the covenant defeasance of the PIK Notes or (ii) in connection
with the purchase or other acquisition by the Partnership or TCFI
of any PIK Notes and the surrender of such PIK Notes to the
Trustee for cancellation in accordance with the provisions of the
Indenture (it being expressly understood that the same PIK Note
shall reduce the principal amount of this Note only once).
(b)(i) Each prepayment in respect of any redemption of PIK
Notes (A) shall be made at the time that payment in respect of
such redemption is required to be made to the Paying Agent under
the Indenture and (B) shall be in an amount equal to the
aggregate amount paid to holders of PIK Notes on account of the
redemption thereof.
(ii) A prepayment in respect to a defeasance or covenant
defeasance of the PIK Notes (A) shall be deemed to have been made
at the time that payment in respect of such defeasance or
covenant defeasance is made to the Trustee in accordance with
Article Four of the Indenture and (B) shall be deemed to have
been made in an amount equal to the entire outstanding
indebtedness represented by this Note and, upon such prepayment,
this Note shall be deemed to have been cancelled.
(iii) Each prepayment in respect of any purchase or other
acquisition by the Partnership or TCFI of PIK Notes and surrender
of such PIK Notes to the Trustee for cancellation (A) shall be
deemed to have been made at the time of surrender of the PIK
Notes for cancellation and (B) shall be deemed to have been made
in an amount equal to the entire outstanding indebtedness
represented by the PIK Notes surrendered for cancellation.
2. Except as set forth in paragraph 1 above, this Note may
not be prepaid, in whole or in part.
3. The Partnership shall pay interest on overdue principal
in accordance with the provisions of the Indenture.
4. If (i) the Partnership defaults in the payment of
interest hereunder when the same becomes due and payable and the
(2)
<PAGE>
default continues for a period of thirty (30) days; (ii) the
Partnership defaults in the payment of the principal hereunder or
any part thereof when the same becomes due and payable, at
Maturity; or (iii) there shall occur any Event of Default under
the Indenture, then on the happening of any such event, the Payee
may declare the entire outstanding principal amount of this Note
and all accrued and unpaid interest thereon and all sums due
under this Note to become immediately due and payable.
5. The Partnership hereby waives presentment and demand for
payment, notice of dishonor, protest and notice of protest of
this Note and agrees to pay all costs of collection when
incurred, including reasonable attorneys' fees, which costs may
be added to the amount due under this Note and be receivable
therewith, and to perform and comply with each of the terms,
covenants and provisions contained in this Note on the part of
the Partnership to be observed or performed. Except as expressly
provided herein, no release of any security for the principal sum
due under this Note or extension of time for payment of this
Note, or any installment hereof, and no alteration, amendment or
waiver of any provision of this Note shall release, discharge,
modify, change or affect the liability of the Partnership under
this Note.
6. The Partnership covenants (to the extent that it may
lawfully do so) that it will not at any time insist upon, or
plead, or in any manner whatsoever claim or take the benefit or
advantage of, any usury, stay or extension law or any other law
which would prohibit or forgive the Partnership from paying all
or any portion of the interest on this Note, wherever enacted,
now or at any time hereafter in force, or which may otherwise
affect the covenants or the performance of this Note; and the
Partnership (to the extent that it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law, and
covenants that it will not hinder, delay or impede the execution
of any power herein granted to the Payee, but will suffer and
permit the execution of every such power as though no such law
had been enacted.
7. The terms of this Note shall be governed by and
construed under the internal laws of the State of New Jersey,
without giving effect to principles of conflicts of law.
8. This Note may not be changed or terminated orally, but
only by an agreement in writing signed by the party against whom
enforcement of such change or termination is sought.
9. Whenever the provisions of this Note and the provisions
of the Indenture shall be inconsistent, the provisions of the
Indenture shall govern.
(3)
<PAGE>
10. This Note is subject to and shall be enforced in
compliance with the provisions of the New Jersey Casino Control
Act.
11. Notwithstanding anything herein or in any other
agreement, document, certificate, instrument, statement or
omission referred to below to the contrary, the Partnership is
liable hereunder only to the extent of the assets of the
Partnership and no other person or entity, including, but not
limited to, any partner, officer, representative, committee or
committee member of the Partnership or any partner therein or of
any Affiliate of the Partnership, or any incorporator, officer,
director or shareholder of any corporate partner of the
Partnership or of any corporate Affiliate of the Partnership, or
any Affiliate or controlling person or entity of any of the
foregoing, or any agent, employee, or lender of any of the
foregoing, or any successor, personal representative, heir or
assign of any of the foregoing, in each case past, present or as
they may exist in the future, shall be liable in any respect
(including without limitation for the breach of any
representation, warranty, covenant, agreement, condition or
indemnification or contribution undertaking contained herein or
therein) under, in connection with, arising out of or relating to
this Note, or any other agreement, document, certificate,
instrument or statement (oral or written) related to, executed or
to be executed, delivered or to be delivered, or made or to be
made, or any omission made or to be made, in connection with any
of the foregoing or any of the transactions contemplated in any
such agreement, document, certificate, instrument or statement.
Any agreement, document, certificate, statement or other
instrument to be executed simultaneously with, in connection
with, arising out of or relating to this Note, the Indenture or
any other agreement, document, certificate, statement or
instrument referred to above, or any agreement, document,
certificate, statement or instrument contemplated hereby shall
contain language mutatis mutandis to this paragraph and, if such
language is omitted, shall be deemed to contain such language.
12. Whenever used herein, the singular number shall include
the plural, the plural the singular, and the words "Payee" and
"Partnership" shall include their respective successors and
assigns.
(4)
<PAGE>
IN WITNESS WHEREOF, the Partnership has duly executed this
Note as of the day and year first above written.
TRUMP'S CASTLE ASSOCIATES,
a New Jersey general
partnership
Attest:____________________ BY: _______________________________
Secretary Donald J. Trump,
its Managing Partner
(5)
<PAGE>
<PAGE>
STATE OF NEW YORK )
ss.:
COUNTY OF NEW YORK )
BE IT REMEMBERED, that on ____________, 1993, before me, the
subscriber, personally appeared DONALD J. TRUMP, the Managing
Partner of TRUMP'S CASTLE ASSOCIATES, a New Jersey general
partnership, who, I am satisfied, is the person who has signed
the within instrument on behalf of such general partnership, and
I having first made known to him the contents thereof he
thereupon acknowledged that he signed and delivered the said
instrument in his capacity as such Partner aforesaid, and that
the within instrument is the voluntary act and deed of said
general partnership.
_______________________________
Notary Public
(6)
<PAGE>
_________________________________________________________________
NOTE PURCHASE AGREEMENT
_________________________________________________________________
$[27,000,000]
11 1/2% Series A Senior Secured Notes Due 2000
of
TRUMP'S CASTLE FUNDING, INC.
Guaranteed by
TRUMP'S CASTLE ASSOCIATES
________________________________________________________________
December 28, 1993
________________________________________________________________
<PAGE>
Table of Contents
PAGE
SECTION 1. DEFINITIONS. . . . . . . . . . . . . . . . . . . . 2
SECTION 2. PURCHASE AND SALE OF SENIOR . . . . . . . . . . . 7
2.1. Issuance of Senior Notes and Senior Guarantee. . . . 7
2.2. Sale and Purchase of the Senior Notes; the
Closing. . . . . . . . . . . . . . . . . . . . . . . 7
2.2.1. Sale and Purchase. . . . . . . . . . . . . . 7
2.2.2. Closing. . . . . . . . . . . . . . . . . . . 8
2.3. Each Fund's Representations. . . . . . . . . . . . . 8
2.3.1. Authorization and Authority. . . . . . . . . 8
2.3.2. Investment Intent; Transfer of Senior
Notes . . . . . . . . . . . . . . . . . . . . . 8
2.3.3. ERISA. . . . . . . . . . . . . . . . . . . . 9
2.3.4. Registered Investment Company. . . . . . . . 9
2.4. Failure to Deliver . . . . . . . . . . . . . . . . . 9
2.4.1. No Closing . . . . . . . . . . . . . . . . . 9
2.4.2. Failure to Notify. . . . . . . . . . . . . . 10
2.5. Expenses . . . . . . . . . . . . . . . . . . . . . . 10
2.6. Indemnification. . . . . . . . . . . . . . . . . . . 11
2.6.1. Scope of Indemnification . . . . . . . . . . 11
2.6.2. Indemnification Procedures . . . . . . . . . 12
2.7. Contribution . . . . . . . . . . . . . . . . . . . . 13
2.7.1. Indemnification Provisions Unenforceable . . 13
2.7.2. No Pro Rata Allocation . . . . . . . . . . . 14
2.7.3. Survival of Obligations. . . . . . . . . . . 14
2.8. Further Actions. . . . . . . . . . . . . . . . . . . 14
SECTION 3. CLOSING CONDITIONS . . . . . . . . . . . . . . . . 15
3.1. Conditions to the Funds' Obligations . . . . . . . . 15
3.1.1. Opinion of Counsel . . . . . . . . . . . . . 15
3.1.2. Officers' Certificates . . . . . . . . . . . 15
3.1.3. Issue of Senior Notes. . . . . . . . . . . . 15
3.1.4. Representations and Warranties True; No
Event
of Default. . . . . . . . . . . . . . . . . . . . 15
3.1.5. Compliance with Agreements . . . . . . . . . 16
3.1.6. Your Purchase Permitted by Applicable
Laws; Legal
Investment. . . . . . . . . . . . . . . . . . . . 16
3.1.7. The Indenture, the Registration Rights
Agreement and the Security
Documentation . . . . . . . . . . . . 16
3.1.8. Recapitalization Transactions. . . . . . . . 16
3.1.9. Consents and Permits . . . . . . . . . . . . 16
3.1.10. Proceedings Satisfactory. . . . . . . . . . 17
3.1.11. No Material Adverse Change. . . . . . . . . 17
3.1.12. No Material Judgment or Order . . . . . . . 17
(i)
<PAGE>
3.1.13. Payment of Fees . . . . . . . . . . . . . . 17
3.2. Conditions to the Obligations of Funding . . . . . . 17
3.2.1. Sale of Senior Notes . . . . . . . . . . . . 18
3.2.2. Funds' Representations and Warranties. . . . 18
3.2.3. No Material Judgment or Order. . . . . . . . 18
3.2.4. The Sale by Funding Permitted by
Applicable Laws . . . . . . . . . . . . . . . . 18
3.2.5. Consents and Permits . . . . . . . . . . . . 18
SECTION 4. THE FUNDS' SPECIAL RIGHTS. . . . . . . . . . . . . 19
4.1. Delivery Expenses. . . . . . . . . . . . . . . . . . 19
4.2. Issue Taxes. . . . . . . . . . . . . . . . . . . . . 19
4.3. Direct Payment . . . . . . . . . . . . . . . . . . . 19
4.4. Inspection . . . . . . . . . . . . . . . . . . . . . 20
4.5. Financial Statements . . . . . . . . . . . . . . . . 20
4.5.1. Delivery . . . . . . . . . . . . . . . . . . 20
4.5.2. Disclosure; Officer's Certificate. . . . . . 20
4.5.3. Additional Information . . . . . . . . . . . 21
4.6. ERISA Compliance . . . . . . . . . . . . . . . . . . 21
4.7. No Bond Necessary. . . . . . . . . . . . . . . . . . 21
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 5. REPRESENTATIONS AND WARRANTIES . . . . . . . . . . 22
5.1. Organization, Standing and Qualification . . . . . . 22
5.1.1. Organization; Standing . . . . . . . . . . . 22
5.1.2. Authority. . . . . . . . . . . . . . . . . . 22
5.2. Authorization of Agreement and Other Documents. . . . . . 22
5.3. No Violation . . . . . . . . . . . . . . . . . . . . 23
5.3.1. Existing Violations. . . . . . . . . . . . . 23
5.3.2. Execution of Agreement . . . . . . . . . . . 23
5.4. Use of Proceeds. . . . . . . . . . . . . . . . . . . 24
5.5. No Default . . . . . . . . . . . . . . . . . . . . . 24
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
5.6. Full Disclosure. . . . . . . . . . . . . . . . . . . 24
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
5.7. ERISA. . . . . . . . . . . . . . . . . . . . . . . . 24
5.8. Compliance with Laws . . . . . . . . . . . . . . . . 25
5.9. Consents . . . . . . . . . . . . . . . . . . . . . . 25
5.10. No Violation of Regulations of Board of Governors
of
Federal Reserve System . . . . . . . . . . . . . . . . . 26
5.11. Private Offering. . . . . . . . . . . . . . . . . . 26
5.11.1. Sale Exempt . . . . . . . . . . . . . . . . 26
5.11.2. No General Solicitation . . . . . . . . . . 26
5.12. Governmental Regulations. . . . . . . . . . . . . . 27
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
5.13. Survival of Indemnification and Contribution and
Representations and Warranties . . . . . . . . . . . . . 27
(ii)
<PAGE>
SECTION 6. MISCELLANEOUS. . . . . . . . . . . . . . . . . . . 27
6.1. Notices. . . . . . . . . . . . . . . . . . . . . . . 27
6.2. Successors and Assigns . . . . . . . . . . . . . . . 28
6.3. Amendment and Waiver . . . . . . . . . . . . . . . . 28
6.4. Counterparts . . . . . . . . . . . . . . . . . . . . 28
6.5. Headings . . . . . . . . . . . . . . . . . . . . . . 29
6.6. Governing Law. . . . . . . . . . . . . . . . . . . . 29
6.7. Entire Agreement . . . . . . . . . . . . . . . . . . 29
6.8. Severability . . . . . . . . . . . . . . . . . . . . 29
Exhibit A
Form of Senior Note Indenture
Exhibit B
Form of Registration Rights Agreement
Exhibit C
Form of Indenture of Mortgage and Security Agreement
(Senior Note Mortgage)
Exhibit D
Form of Indenture of Mortgage and Security Agent
(Senior Guarantee Mortgage)
Exhibit E
Form of Opinion of Willkie Farr & Gallagher
-iii-
<PAGE>
TRUMP'S CASTLE FUNDING, INC.
TRUMP'S CASTLE ASSOCIATES
Brigantine Boulevard and Huron Avenue
Atlantic City, New Jersey 08401
As of December 28, 1993
PUTNAM PREMIER INCOME TRUST
PUTNAM MASTER INCOME TRUST
PUTNAM CAPITAL MANAGER TRUST
- PCM HIGH YIELD FUND
PUTNAM MASTER INTERMEDIATE INCOME TRUST
PUTNAM DIVERSIFIED INCOME TRUST
PUTNAM MANAGED HIGH YIELD TRUST
PUTNAM CAPITAL MANAGER TRUST
- PCM DIVERSIFIED INCOME FUND
PUTNAM HIGH YIELD ADVANTAGE FUND
FUTNAM HIGH YIELD TRUST
PUTNAM HIGH INCOME CONVERTIBLE AND BOND FUND
c/o Putnam Investment Management
One Post Office Square
Boston, Massachusetts 02110
Re: 11.5% Series A Senior Notes due 2000
Ladies and Gentlemen:
Each of Trump's Castle Funding, Inc., a New Jersey
corporation ("Funding"), and Trump's Castle Associates, a New
Jersey general partnership (the "Partnership"), hereby agrees
with each of you (each of you individually being hereinafter
referred to as a "Fund", and all of you collectively as the
"Funds") as follows:
SECTION 1. DEFINITIONS
As used in this Agreement, the following terms shall have
the following meanings:
"accumulated funding deficiency" shall have the meaning
specified in Section 4.6 hereof.
"Affiliate" means, with respect to any specified Person, any
other Person directly or indirectly controlling or controlled by
or under direct or indirect common control with such specified
(2)
<PAGE>
Person. For the purposes of this definition, "control", when
used with respect to any Person, means the power to direct the
management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract
or otherwise; and the terms "controlling" and "controlled" have
meanings correlative to the foregoing.
"Agreement" means this Note Purchase Agreement, as the same
may be amended, supplemented or modified from time to time in
accordance with the terms hereof.
"Applicable Law" means any Federal, state, local or foreign
statute, law, ordinance, governmental rule or regulation or any
judgment, decree, rule or order of any court or governmental
agency or authority applicable to the Partnership or any of its
Subsidiaries or any of their respective properties, assets or
operations.
"Business Day" means a day that is not a Saturday, a Sunday
or a day on which banking institutions in either the State of New
Jersey or the State of New York are not required to be open.
"Charter Documents" means the Articles or Certificate of
Incorporation and By-Laws, partnership agreement or similar
organizational documents, as amended to the Closing Date, of the
applicable Person.
"Closing" shall have the meaning specified in Section 2.2.2
hereof.
"Closing Date" shall have the meaning specified in Section
2.2.2 hereof.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commission" means the Securities and Exchange Commission.
"complete withdrawal" shall have the meaning specified in
Section 4.6 hereof.
"Default" means any event, act or condition that is, or
after notice or passage of time or both would constitute, an
Event of Default.
"disqualified person" shall have the meaning specified in
Section 2.3.3 hereof.
"Documents" means all documents delivered in connection with
the transactions contemplated by this Agreement, including
without limitation, the Senior Notes, the Senior Note Indenture,
the Registration Rights Agreement, Senior Partnership Note and
the Security Documentation, collectively, or each of such
(3)
<PAGE>
documents singularly, and any documents or instruments
contemplated by or executed in connection with any of them or any
of the transactions contemplated hereby or thereby.
"employee benefit plan" shall have the meaning specified in
Section 2.3.3 hereof.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended.
"ERISA Affiliate" shall have the meaning specified in
Section 4.6 hereof.
"Event of Default" means any event defined as an Event of
Default in the Senior Note Indenture.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated by the
Commission thereunder.
"Funding" means Trump's Castle Funding, Inc., a New Jersey
corporation, and any successor thereto.
"Indemnified Parties" shall have the meaning specified in
Section 2.6.1 hereof.
"Lien" shall have the meaning specified in the Senior Note
Indenture.
"Losses" shall have the meaning specified in Section 2.6.1
hereof.
"Material Adverse Effect" means a material adverse effect on
the properties, business, operations, earnings, assets,
liabilities or financial condition of the Partnership and
Funding, taken as a whole, or on the ability of the Partnership
or Funding to perform their respective obligations under this
Agreement, the Senior Notes or any of the other Documents.
"Multiemployer Plan" shall have the meaning specified in
Section 4.6 hereof.
"partial withdrawal" shall have the meaning specified in
Section 4.6 hereof.
"Partnership" means Trump's Castle Associates, a New Jersey
general partnership, and any successor thereto.
"party in interest" shall have the meaning specified in
Section 2.3.3 hereof.
(4)
<PAGE>
"Permitted Investments" shall have the meaning specified in
the Senior Note Indenture.
"Person" means any individual, partnership, corporation,
limited liability company, joint venture, association,
joint-stock company, trust, unincorporated organization,
government or agency or political subdivision thereof, or other
entity.
"Privately Outstanding Notes" means the Senior Notes upon
the original issuance thereof and at all times subsequent thereto
until, in the case of any Senior Note, (i) the registered
exchange offer provided for in Section 2 of the Registration
Rights Agreement shall have been consummated and such Senior Note
shall have been resold by the Fund which purchased such Senior
Note, (ii) the sale or other public distribution of such Senior
Note shall have been registered pursuant to the Securities Act
and such Senior Note shall have been disposed of by the Fund
which purchased such Senior Note in accordance with such
registration, or (iii) such Senior Note shall have been resold by
the Fund pursuant to Rule 144, Rule 144A or other resale
exemption from the registration requirements of the Securities
Act.
"Proceeding" means an action, claim, suit or proceeding
(including, without limitation, an investigation or partial
proceeding, such as a deposition), whether commenced or to the
knowledge of Funding or the Partnership, as the case may be,
threatened.
"prohibited transaction" shall have the meaning specified in
Section 4.6 hereof.
"qualified trust" shall have the meaning specified in
Section 2.3.3 hereof.
"Recapitalization Transactions" means the transactions by
which the recapitalization of the Partnership and Funding will be
effected as described in the Registration Statement.
"Registration Rights Agreement" means the Registration
Rights Agreement of even date herewith by and among Funding, the
Partnership and the Funds, relating to the registration of the
Senior Notes pursuant to the Securities Act and in substantially
the form of Exhibit B hereto.
"Registration Statement" means the registration statement of
Funding and the Partnership, on Form S-4 filed with the
Commission on August 27, 1993 (Registration No. 33-68038), and
all amendments and supplements thereto, including post-effective
amendments, in each case including the prospectus contained
(5)
<PAGE>
therein, all exhibits thereto and all material incorporated by
reference therein.
"reportable event" shall have the meaning specified in
Section 4.6 hereof.
"Rule 144" means Rule 144 as promulgated by the Commission
pursuant to the Securities Act, and any successor rule or
regulation thereto.
"Rule 144A" means Rule 144A as promulgated by the Commission
pursuant to the Securities Act, and any successor rule or
regulation thereto.
"Scheduled Closing Date" shall have the meaning specified in
Section 2.4.2.
"Securities Act" means the Securities Act of 1933, as
amended, and the rules and regulations promulgated by the
Commission pursuant thereto.
"Security Documentation" means the Indenture of Mortgage and
Security Agreement (Senior Note Mortgage) of even date herewith
by and between the Partnership, as mortgagor and debtor, and
Funding, as mortgagee and secured party, the Indenture of
Mortgage and Security Agreement (Senior Guarantee Mortgage) of
even date herewith by and between the Partnership, as mortgagor
and debtor, and the Trustee, as mortgagee and secured party, in
substantially the forms of Exhibits C and D hereto, respectively,
and the other agreements and documents entered into or delivered
in connection therewith.
"Subsidiary" means, with respect to any Person, (i) a
corporation a majority of whose capital stock with voting power,
under ordinary circumstances, to elect directors is owned,
directly or indirectly, by such Person or by one or more other
Subsidiaries of such Person, or by such Person and one or more
Subsidiaries thereof or (ii) any other Person (other than a
corporation) in which such Person, or one or more other
Subsidiaries of such Person or such Person and one or more other
Subsidiaries thereof, directly or indirectly, has at least a
majority ownership and power to direct the policies, management
and affairs thereof.
"Senior Notes" shall have the meaning specified in Section
2.1.1 hereof.
"Senior Note Indenture" means the Indenture, dated as of the
date hereof, by and between Funding, as the issuer, the
Partnership, as the guarantor, and the Trustee, as trustee, in
substantially the form of Exhibit A hereto, as the same may be
amended from time to time, in accordance with the terms thereof.
(6)
<PAGE>
"Senior Partnership Note" means the Note dated as of the
date hereof in the principal amount of $27,000,000 made by the
Partnership in favor of Funding.
"Trustee" shall mean First Bank National Association.
SECTION 2. PURCHASE AND SALE OF SENIOR NOTES
2.1. Issuance of Senior Notes and Senior Guarantee
2.1.1. Issuance of the Senior Notes.
Funding has taken all necessary corporate action to
authorize the issuance and sale of up to $37,000,000 aggregate
original principal amount of its 11.5% Series A Senior Secured
Notes Due 2000 (the "Senior Notes") and to make the Senior Notes
the enforceable obligations they purport to be. The Senior Notes
will be issued in denominations of $1,000,000 and any integral
multiple of $1,000,000 thereof, will otherwise be substantially
in the form of Senior Note included in Article II of the Senior
Note Indenture.
2.1.2. Issuance of the Senior Guarantee.
The Partnership has taken all necessary partnership action
to authorize the issuance of its unconditional guarantee of
payment of the Senior Notes as set forth in the Senior Note
Indenture, the issuance of the Senior Partnership Note and the
execution and delivery of the Security Documentation to which it
is a party and to make each of its guarantee of the Senior Notes,
the Senior Partnership Note and the Security Documentation to
which it is a party the enforceable obligation it purports to be.
2.2. Sale and Purchase of the Senior Notes; the Closing
2.2.1. Sale and Purchase
Subject to the terms and conditions set forth herein,
Funding hereby agrees to sell to each Fund the aggregate
principal amount of Senior Notes set forth opposite the name of
such Fund on the execution page hereof for such Fund. All of the
Senior Notes shall be sold at a price equal to 100% of the
original principal amount thereof.
In reliance upon the representations and warranties of
Funding and the Partnership contained herein, in the other
Documents and in the Registration Statement, and subject to the
terms and conditions set forth herein and therein, each Fund<PAGE>
(7)
<PAGE>
hereby agrees, severally and not jointly, to purchase the Senior
Notes to be purchased by such Fund at the purchase price set
forth in this Section. Each Fund shall, severally and not
jointly, be liable for only the purchase of that portion of such
Senior Notes indicated on the execution page hereof for such
Fund.
2.2.2. Closing
The sale and purchase of the Senior Notes shall take place
at a closing (the "Closing") at the offices of Wilkie Farr &
Gallagher, 153 East 53rd Street, New York, New York 10022,
commencing at 9:30 A.M., New York time, on December 28, 1993, or
such other place, Business Day (not in any event later than
December 31, 1993) and time as may be agreed upon by the Funds
and Funding (such time and date being referred to as the "Closing
Date"). At the Closing, Funding will deliver to each of the
Funds one or more Senior Notes in the aggregate principal amount
or amounts to be purchased by such Fund, registered in its name
or in the name(s) of such nominee(s) or designee(s) as such Fund
may request, against payment of the purchase price therefor by
Federal funds bank wire transfer of same day funds to such bank
account as Funding shall designate at least two Business Days
prior to the Closing Date.
2.3. Each Fund's Representations
2.3.1. Authorization and Authority.
Each Fund represents to Funding and the Partnership that
such Fund has taken all necessary action to authorize the
execution and delivery of this Agreement and the Registration
Rights Agreement and to make each of this Agreement and the
Registration Rights Agreement the enforceable obligation it
purports to be.
2.3.2. Investment Intent; Transfer of Senior Notes.
Each Fund represents to Funding and the Partnership that
such Fund is purchasing the Senior Notes being purchased by such
Fund hereunder for its own account, and with no intention of
distributing or reselling such Senior Notes or any part thereof
in any transaction that would violate the securities laws of the
United States of America or any state thereof.
If any Fund desires to offer, sell or otherwise transfer,
pledge or hypothecate all or any part of the Senior Notes (other
than pursuant to an effective registration statement under the
Securities Act or pursuant to Rule 144 or Rule 144A) such Fund
shall deliver to Funding a written opinion of Ropes & Gray or
other counsel, reasonably satisfactory in form and substance to
Funding, that there is available therefor an exemption from the
(8)
<PAGE>
registration requirements of the Securities Act. Upon original
issuance thereof, and until such time as no longer required by
law, each of the Senior Notes originally issued (and all Senior
Notes issued in exchange therefor or substitution thereof) shall
bear a legend in substantially the form set forth in Section 2.2
of the Senior Note Indenture.
At such time that any such legend is no longer required by
law to be borne by a Senior Note, Funding shall, at the request
of the holder thereof, cause such legend to be removed or replace
such certificate with an unlegended security.
2.3.3. ERISA.
Each Fund represents to Funding and the Partnership that
either (i) no part of the funds to be used to purchase the Senior
Notes to be purchased by such Fund constitutes assets allocated
to any qualified trust that contains the assets of any employee
benefit plan with respect to which Funding or the Partnership is
a party in interest or disqualified person or (ii) the use of
such assets would not constitute a non-exempt prohibited
transaction. The representations made by each Fund in the
preceding clauses are made solely in reliance upon its review of
the list (a copy of which is set forth as Schedule 2.3.3 hereto),
previously furnished to the Funds by Funding, which identifies
the qualified trusts that contain assets of any employee benefit
plans with respect to which Funding or the Partnership is a party
in interest or a disqualified person. The terms "employee
benefit plan" and "party in interest" shall have the meanings
assigned to such terms in Section 3 of ERISA, the term
"disqualified person" shall have the meaning assigned to such
term in section 4975 of the Code, and the term "qualified trust"
shall mean any trust qualified under section 401(a) of the Code
in which is held the assets of any employee benefit plan.
2.3.4. Registered Investment Company.
Each Fund represents to Funding and the Partnership that it
is registered as an investment company under the Investment
Company Act of 1940, as amended.
2.4. Failure to Deliver
2.4.1. No Closing.
Notwithstanding anything to the contrary contained in this
Agreement, this Agreement may be terminated and the transactions
contemplated hereby may be abandoned at any time prior to the
Closing:
(i) By the mutual consent of all of the parties;
(9)
<PAGE>
(ii) By the Funds at any time in the event of a breach
or default by either Funding or the Partnership in the
observance or in the timely performance of any of its
obligations hereunder which is not waived by the Funds and
which remains uncured for fifteen (15) days after receipt of
notice in writing of such breach or default;
(iii) By Funding at any time in the event of a breach
or default by any Fund in the observance or in the timely
performance of any of its obligations hereunder which is not
waived by Funding and remains uncured for fifteen (15) days
after receipt of notice in writing of such breach or
default; or
(iv) If the Closing shall not have occurred on or
before December 31, 1993, at anytime thereafter by the Funds
or Funding.
No termination under this section shall be effective unless and
until the terminating party gives written notice of such
termination to the other party.
2.4.2. Failure to Notify.
If the Closing shall not actually occur on any date on which
the Closing is scheduled to occur (the "Scheduled Closing Date")
(other than by reason of the failure of one or more of the Funds
to purchase Senior Notes duly tendered), and Funding shall have
failed to notify Ropes & Gray prior to 12:00 p.m., New York time,
on such Scheduled Closing Date that such Closing has been
postponed, Funding shall pay to each Fund by wire transfer of
immediately available funds to the bank account designated by
such Fund (as compensation for its loss of funds and
administrative costs) an amount equal to interest on the
aggregate purchase price for the Senior Notes to have been
purchased by such Fund on such Scheduled Closing Date, at the
effective rate of interest equal to 11.5% per annum, less the
overnight Federal funds rate, for each day from and including
such Scheduled Closing Date to and including the earlier of the
date on which such Closing actually occurs or the date on which
the amount to be paid by such Fund as the purchase price of such
Senior Notes is available to such Fund for reinvestment,
provided, that Funding shall pay to such Fund in any case not
less than one day's interest at such specified rate.
2.5. Expenses
Whether or not the Senior Notes are sold, Funding shall pay
all reasonable expenses relating to this Agreement and the other
Documents, including, but not limited to:
(10)
<PAGE>
(a) the cost of printing, reproducing and filing this
Agreement, the other Documents and any other documents
contemplated hereby or thereby;
(b) the reasonable fees and charges and disbursements of
Ropes & Gray, the Funds' special counsel, or such other counsel
as the Funds may employ on their behalf with the consent of
Funding;
(c) the cost of delivering to your home office or the
office of your designee the Senior Notes purchased by the Funds
at the Closing upon the issuance thereof;
(d) all expenses, including reasonable attorneys' fees,
relating to any amendment to, or modification of, or any waiver,
or consent or preservation of rights under, this Agreement or any
of the Documents;
(e) all other expenses, including reasonable attorneys'
fees, incurred by Funding in connection with the transactions
contemplated by this Agreement and the other Documents; and
(f) all fees and expenses (including reasonable fees and
expenses of counsel) in connection with any registration or
qualification of the Senior Notes for offer and sale hereunder
under the securities or "blue sky" laws of any jurisdiction
requiring such registration or qualification or in connection
with obtaining any exemptions from such requirements.
2.6. Indemnification
2.6.1. Scope of Indemnification.
In addition to all other sums due hereunder or provided for
in this Agreement or any of the other Documents and any and all
obligations of Funding and the Partnership to indemnify the Funds
hereunder or under any of the other Documents, Funding and the
Partnership, jointly and severally, shall, without limitation as
to time, indemnify and hold harmless each Fund, its Affiliates,
and the employees, officers, directors, trustees, and agents of
each Fund and its Affiliates, including attorneys and consultants
(individually, an "Indemnified Party" and collectively, the
"Indemnified Parties"), to the fullest extent lawful, from and
against any and all losses, claims, damages, liabilities, costs
(including, without limitation, reasonable costs of preparation
and reasonable attorneys' fees) and expenses, including expenses
of investigation (collectively, "Losses"), incurred by any
Indemnified Party, as a consequence of any claim by or obligation
to a third party which arises out of or in connection with this
Agreement or the other Documents or the transactions contemplated
hereby or thereby (or any other document or instrument executed
herewith or pursuant hereto or thereto), whether or not the
(11)
<PAGE>
transactions contemplated by this Agreement or such other
Documents are consummated and whether or not any Indemnified
Party is a formal party to any Proceeding; provided, however,
that neither Funding nor the Partnership shall be liable to any
Indemnified Party for any Losses (i) resulting from a violation
by such Indemnified Party of a legal restriction on its
investment powers, or (ii) to the extent that it shall be finally
determined by a court of competent jurisdiction (which
determination is not subject to appeal or review) that such
Losses arose primarily out of the gross negligence or willful
misconduct of such Indemnified Party. Subject to the
reimbursement obligation set forth in the last sentence of
Section 2.6.2 hereof, each of Funding and the Partnership agrees
promptly to reimburse any Indemnified Party for all such Losses
as they are incurred and disclosed to Funding and the Partnership
in writing by such Indemnified Party. The obligations of each of
Funding and the Partnership to each Indemnified Party hereunder
shall be separate obligations, and the liability of each of
Funding and the Partnership to any Indemnified Party hereunder
shall not be extinguished solely because any other Indemnified
Party is not entitled to indemnity hereunder.
2.6.2. Indemnification Procedures.
If any proceeding shall be brought or asserted against any
Indemnified Party in respect of which indemnity may be sought
from Funding or the Partnership hereunder, such Indemnified Party
promptly shall notify Funding and the Partnership in writing, and
either Funding or the Partnership, or both, shall assume the
defense thereof, including the employment of counsel reasonably
satisfactory to the Indemnified Party and the payment of all
reasonable fees and expenses incurred in connection with the
defense thereof; provided, that the failure of any Indemnified
Party to give such notice shall not relieve either Funding or the
Partnership of its obligations pursuant to this Agreement, except
to the extent that it shall be finally determined by a court of
competent jurisdiction (which determination is not subject to
appeal or review) that such failure shall have materially
prejudiced Funding or the Partnership, as indemnitor.
Any such Indemnified Party shall have the right to employ
separate counsel in any such action, claim or proceeding and to
participate in the defense thereof, but the fees and expenses of
such counsel shall be at the expense of such Indemnified Party
unless: (1) Funding or the Partnership has agreed to pay such
fees and expenses; or (2) Funding or the Partnership has failed
promptly to assume the defense of such action, claim or
proceeding and to employ counsel reasonably satisfactory to such
Indemnified Party in any such action, claim or proceeding; or (3)
the named parties to any such action, claim or proceeding
(including any impleaded parties) include both such Indemnified
Party and Funding or the Partnership, and such Indemnified Party
(12)
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shall have been advised by counsel that a conflict of interest
may exist if the same counsel represents such Indemnified Party
and Funding or the Partnership (and in the case of any of (1),
(2) or (3), if such Indemnified Party notifies Funding and the
Partnership in writing that it elects to employ separate counsel
at the expense of Funding and the Partnership, Funding and the
Partnership shall not have the right to assume the defense
thereof and the reasonable fees and expenses of such counsel
shall be at the expense of Funding and the Partnership);
provided, however, that, so long as no conflict of interest
exists between any Indemnified Party and any other Indemnified
Party, Funding and the Partnership shall not be obligated to pay
the fees and expenses of more than one separate lead counsel (and
one local counsel) for all Indemnified Parties. Funding and the
Partnership shall have the right to employ separate counsel in,
and to participate in the defense of, any action or proceeding
with respect to which it has no right to assume the defense, but
the fees and expenses of such counsel shall be at the expense of
Funding and the Partnership. No Indemnified Party will be
subject to any liability for any settlement made without its
consent (but such consent will not be unreasonably withheld).
Neither Funding nor the Partnership shall consent to the entry of
any judgment or enter into any settlement that does not include
as an unconditional term thereof the giving by the claimant or
plaintiff to the Indemnified Party of a release, in form and
substance satisfactory to the Indemnified Party, from all
liability in respect of such action, claim or proceeding for
which such Indemnified Party would be entitled to indemnification
hereunder (whether or not any Indemnified Party is a party
thereto). All fees and expenses of the Indemnified Party
(including reasonable fees and expenses to the extent incurred in
connection with investigating or preparing to defend such action
or proceeding in a manner not inconsistent with this Section 2.6)
shall be paid to the Indemnified Party, as incurred, upon written
notice thereof to Funding or the Partnership; provided, that
Funding or the Partnership may require such Indemnified Party to
undertake to reimburse all such fees and expenses to the extent
it is finally judicially determined by a court of competent
jurisdiction (which determination is not subject to appeal or
review) that such Indemnified Party is not entitled to
indemnification hereunder.
2.7. Contribution
2.7.1. Indemnification Provisions Unenforceable.
If a claim by an Indemnified Party for indemnification under
Section 2.6 hereof is found unenforceable in a final judgment by
a court of competent jurisdiction (not subject to further appeal
or review) even though the express provisions hereof provide for
indemnification in such case, then Funding and the Partnership,
jointly and severally, in lieu of indemnifying such Indemnified
(13)
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Party, shall contribute to the amount paid or payable by such
Indemnified Party as a result of such Losses in such proportion
as is appropriate to reflect the relative fault of Funding or the
Partnership, on the one hand, and such Indemnified Party, on the
other hand, in connection with the actions, statements or
omissions that resulted in such Losses as well as any other
relevant equitable considerations. The relative fault of Funding
or the Partnership, on the one hand, and any Indemnified Party,
on the other hand, shall be determined by reference to, among
other things, whether any action in question, including any
untrue or alleged untrue statement of a material fact or omission
or alleged omission to state a material fact, has been taken by,
or relates to information supplied by, Funding or the
Partnership, on the one hand, or such Indemnified Party, on the
other hand, and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent any such
action, statement or omission. The amount paid or payable by a
party as a result of any Losses shall be deemed to include any
legal or other fees or expenses incurred by such party in
connection with any proceeding.
2.7.2. No Pro Rata Allocation.
The parties hereto agree that it would not be just and
equitable if contribution pursuant to this Section 2.7 were
determined by pro rata allocation or by any other method of
allocation that does not account for the equitable considerations
referred to in Section 2.7.1 hereof. Notwithstanding the
provisions of this Section 2.7, no Indemnified Party shall be
required to contribute any amount in excess of the amount by
which the price at which the Senior Notes sold by such
Indemnified Party and distributed to the public exceeds the
amount of any damages that such Indemnified Party has otherwise
been required to pay by reason of such statement or omission. No
Person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to
contribution from any Person who is not guilty of such fraudulent
misrepresentation.
2.7.3. Survival of Obligations.
The obligations of Funding and the Partnership under Section
2.6 and this Section 2.7 shall survive the payment or prepayment
of the Senior Notes, at maturity, upon redemption or otherwise,
any transfer of the Senior Notes by the Funds, and any
termination of this Agreement or the other Documents.
2.8. Further Actions
During the period from the date hereof to the Closing Date,
Funding and the Partnership shall take all actions reasonably
necessary or appropriate to cause its representations and
(14)
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warranties contained in Section 5 hereof to be true and correct
in all material respects as of the Closing Date, after giving
effect to the transactions contemplated by this Agreement, as if
made on and as of such date.
SECTION 3. CLOSING CONDITIONS
3.1. Conditions to the Funds' Obligations
Each Fund's obligation to purchase and pay for the Senior
Notes to be purchased by it at the Closing shall be subject to
the satisfaction of the following conditions on or prior to the
Closing Date:
3.1.1. Opinion of Counsel
The Funds shall have received a favorable opinion, dated the
Closing Date and addressed to the Funds, from Willkie Farr &
Gallagher, counsel to Funding and the Partnership, substantially
in the form set forth in Exhibit E hereto.
3.1.2. Officers' Certificates
(a) The Funds shall have received a certificate or
certificates, dated the Closing Date and signed by the Chief
Executive Officer or the Chief Financial Officer of Funding
certifying (i) that the conditions set forth in Sections 3.1.3
through 3.1.5, 3.1.8, 3.1.9, 3.1.11 and 3.1.12 hereof have been
satisfied on and as of such date and (ii) as to such other
matters as any Fund may reasonably request.
(b) The Funds shall have received a certificate, dated the
Closing Date and signed by the Secretary of Funding, certifying
such matters as the Funds may reasonably request.
3.1.3. Issue of Senior Notes
Simultaneously with the sale to each Fund of the Senior
Notes to be purchased by it at the Closing, Funding shall have
issued and delivered and received payment for the Senior Notes to
be purchased by the other Funds hereunder.
3.1.4. Representations and Warranties True; No Event
of Default
The representations and warranties of Funding and the
Partnership contained herein and in each of the other Documents
shall be true and correct in all material respects at and as of
the Closing Date, after giving effect to the transactions
contemplated by this Agreement, the Registration Statement and
the other Documents, as if made on and as of such date. There
shall exist at and as of the Closing Date (after giving effect to
(15)
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the transactions contemplated by this Agreement, the Registration
Statement and the other Documents) no Default or Event of
Default.
3.1.5. Compliance with Agreements
Funding and the Partnership shall have performed and
complied in all material respects with all agreements, covenants
and conditions contained in this Agreement and in the other
Documents that are required to be performed or complied with by
Funding and the Partnership on or before the Closing Date.
3.1.6. Your Purchase Permitted by Applicable Laws; Legal
Investment
Each Fund's purchase of and payment for the Senior Notes to
be purchased by it (a) shall not be prohibited by any applicable
law or governmental regulation, release, interpretation or
opinion (including, without limitation, Regulations G, T, U and X
of the Board of Governors of the Federal Reserve System), (b)
shall not subject any Fund to any penalty or other materially
onerous condition under or pursuant to any applicable law or
governmental regulation (other than the New Jersey Casino Control
Act), and (c) shall be permitted by the laws and regulations of
the jurisdictions to which you are subject. Funding shall have
delivered to each Fund factual certificates or other evidence as
each Fund shall reasonably request, in form and substance
reasonably satisfactory to such Fund, to enable such Fund to
establish compliance with this condition.
3.1.7 The Indenture, the Registration Rights Agreement and
the Security Documentation
(a) Funding, the Partnership and the Trustee shall have
duly entered into the Senior Note Indenture, and the Fund's
counsel shall have received counterparts, conformed as executed,
of the Senior Note Indenture.
(b) Funding and the Partnership shall have duly executed
and delivered to the Funds the Registration Rights Agreement.
(c) Each of Funding and the Partnership shall have duly
executed and delivered to the Trustee the Security Documentation
and each of the other Documents to which it is a party and shall
have taken such action to perfect the security interests granted
in the Security Documents as the Funds shall have requested.
3.1.8. Recapitalization Transactions.
The Recapitalization Transactions shall have been
consummated substantially on the terms set forth in the
Registration Statement.
(16)
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3.1.9. Consents and Permits
Funding and the Partnership shall have received all
consents, permits and other authorizations, and made all such
filings and declarations, as may be required pursuant to any
Applicable Law, for consummation of the transactions contemplated
by this Agreement and the other Documents, including the issuance
and sale of the Senior Notes to the Funds, and pursuant to all
other agreements, orders and decrees to which any of them is a
party or to which any of them is subject, in connection with the
transactions to be consummated on or prior to the Closing Date
contemplated by this Agreement and the other Documents.
3.1.10. Proceedings Satisfactory
All corporate proceedings taken in connection with the sale
of the Senior Notes and all documents relating thereto, shall be
reasonably satisfactory in form and substance to the Funds. The
Funds and Ropes & Gray shall have received copies of such
documents as they may reasonably request in connection with the
Closing, or as a basis for the Closing opinions, all in form and
substance reasonably satisfactory to the Funds and their special
counsel. Each Document shall be reasonably satisfactory in form
and substance to the Funds.
3.1.11. No Material Adverse Change
Since June 30, 1993, there shall not have occurred any
material adverse change in the operations, business, properties,
prospects, condition (financial or otherwise) or results of
operations of Funding and the Partnership, taken as a whole.
There shall have been no material adverse change in the
Partnership's ability to operate the Trump's Castle Casino Resort
as described in the Registration Statement.
3.1.12. No Material Judgment or Order
There shall not be on the Closing Date any judgment or order
of a court of competent jurisdiction or any ruling of any agency
of the Federal, state or local government that, in the reasonable
judgment of the Funds or the Funds' special counsel, would
prohibit the sale or issuance of the Senior Notes hereunder or
subject Funding, the Partnership or any Fund to any material
penalty if the Senior Notes were to be issued and sold hereunder.
3.1.13. Payment of Fees. Funding shall have paid to each
Fund (a) a funding fee in an amount equal to 1/2 of 1% of the
original principal amount of the Senior Notes issued to such Fund
and (b) an availability fee in an amount equal to 1.5% of the
original principal amount of the Senior Notes purchased by such
Fund.
(17)
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3.2. Conditions to the Obligations of Funding
The obligations of Funding to sell the Senior Notes to be
delivered to the Funds at the Closing shall be subject to the
satisfaction of the following conditions:
3.2.1. Sale of Senior Notes
The Funds shall have delivered payment to Funding, in
respect of the several purchases of the Senior Notes, in an
original aggregate amount of $27,000,000 (less fees and
expenses).
3.2.2. Funds' Representations and Warranties
Each Fund's payment of the purchase price for the Senior
Notes purchased by it at the Closing shall constitute a
certification by such Fund that all of its representations and
warranties made herein and in the other Documents shall be true
and correct in all material respects at and as of the Closing
Date, after giving effect to the transactions contemplated by
this Agreement and the other Documents, as if made at and as of
such date.
3.2.3. No Material Judgment or Order
There shall not be on the Closing Date any judgment or order
of a court of competent jurisdiction or any ruling of any agency
of the Federal, state or local government that, in the reasonable
judgment of Funding or the Partnership, would prohibit the sale
or issuance of the Senior Notes hereunder or subject Funding or
the Partnership to any material penalty if the Senior Notes were
to be issued and sold hereunder.
3.2.4. The Sale by Funding Permitted by Applicable Laws
The sale by Funding and the Funds' payment for the Senior
Notes to be purchased by the Funds (a) shall not be prohibited by
any applicable law or governmental regulation, release,
interpretation or opinion (including, without limitation,
Regulation G, T, U or X of the Board of Governors of the Federal
Reserve System), (b) shall not subject Funding or the Partnership
to any penalty under or pursuant to any applicable law or
governmental regulation, and (c) shall be permitted by the laws
and regulations of the jurisdictions to which Funding or the
Partnership are subject.
3.2.5. Consents and Permits
Each Fund shall have received all consents, permits and
other authorizations, and made all such filings and declarations,
as may be required pursuant to any law, statute, regulation or
(18)
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rule (Federal, state, local and foreign), contemplated by this
Agreement and the other Documents, including the purchase of the
Senior Notes by such Fund and the consummation of the
Recapitalization Transactions, and pursuant to all other
agreements, orders and decrees to which such Fund is a party or
to which such Fund is subject, in connection with the
transactions to be consummated on or prior to the Closing Date
contemplated by this Agreement and the other Documents.
SECTION 4. THE FUNDS' SPECIAL RIGHTS. The provisions of this
Section 4 shall apply with respect to each Privately Outstanding
Note and shall remain in effect so long as any of the Senior
Notes are Privately Outstanding Notes.
4.1. Delivery Expenses
If a holder of a Privately Outstanding Note surrenders such
Senior Note to Funding or the Trustee for substitution,
replacement or exchange, Funding will pay the cost of delivering
to and from such holder's home office (or to and from the office
of such holder's designee(s)) and the office of Funding or the
Trustee, as the case may be, insured to such holder's
satisfaction, the surrendered Senior Note and each Senior Note
issued in substitution, replacement or exchange therefor.
4.2. Issue Taxes
Funding shall pay all stamp, transfer and other similar
taxes and governmental fees in connection with (a) the issuance,
sale, delivery or transfer by Funding of the Privately
Outstanding Notes, (b) the execution and delivery of the
Documents, (c) any modification of the Documents and (d) the
consummation of an Exchange Offer as defined in the Indenture.
Funding will hold each holder of Privately Outstanding Notes
harmless, without limitation as to time, against any and all
liabilities with respect to all such taxes and fees. The
obligations of Funding under this Section 4.2 shall survive the
payment or prepayment of the Senior Notes, at maturity, upon
redemption or otherwise, any transfer of the Senior Notes by the
holder thereof, and the termination of this Agreement.
4.3. Direct Payment
Funding shall instruct the Trustee to pay or cause to be
paid all interest payments with respect to any Privately
Outstanding Note (without any presentment of such Note and
without any notation of such payment being made thereon) by
crediting such amount, before 12:00 Noon, New York time, on the
date such amount is payable, by Federal funds bank wire transfer
in same day available funds, to the registered holder's account
in any bank in the United States of America as may be designated
by such holder or such nominee(s), as the case may be, not less
(19)
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than two Business Days prior to such payment. The initial bank
account for this purpose is set forth on the signature page
hereof. Each Fund shall be responsible for advising Funding of
any changes in its designated bank account, and Funding shall not
have any responsibility for delays in transfers because of any
registered holder's failure to advise Funding of any such change.
Each Fund agrees, before any sale, transfer or other disposition
of any Note that is a Privately Outstanding Note, to make a
notation thereon, or submit the same to the Trustee under the
Indenture for notation thereon, of the date to which interest has
been paid thereon and the amount of all redemption payments
previously made in respect thereof.
4.4. Inspection
Funding and the Partnership will permit any person
designated by any of the holders of record of the Privately
Outstanding Notes in writing and reasonably acceptable to Funding
or the Partnership, at such designating holder's expense, upon
reasonable notice during normal business hours, to visit and
inspect any of the properties (subject to reasonable security
procedures customarily required by Funding or the Partnership),
the corporate books or financial records of Funding, the
Partnership and its Subsidiaries, and to discuss their affairs,
finances and accounts with the principal officers of Funding or
the Partnership and its Subsidiaries and (with notice to the
Partnership) their independent public accountants, all at such
reasonable times and as often as such holder may reasonably
request. Each such holder agrees that any information obtained
by it as a result of such visits, inspections and discussions or
pursuant to this Agreement shall be confidential and shall be
kept confidential by such holder, unless (i) disclosure of such
information is required by law or by court or administrative
order, provided that prior to disclosing any confidential
information pursuant to this clause, such holder agrees to
provide notice to Funding or the Partnership and to reasonably
cooperate with Funding or the Partnership in any contest of such
disclosure, (ii) such information becomes available to the public
other than as a result of a disclosure or failure to safeguard by
such holder, or (iii) such information becomes available to such
holder from a source, other than Funding or the Partnership,
which source such holder reasonably believes is not subject to a
confidentiality agreement which prohibited such disclosure.
4.5. Financial Statements
4.5.1. Delivery
Funding will deliver or cause the Trustee to deliver to each
holder of Privately Outstanding Notes the financial statements
and other information described by Section 10.18 of the Senior
Note Indenture in the time periods and manner prescribed therein.
(20)
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4.5.2. Disclosure; Officer's Certificate
Each financial statement of Funding or the Partnership
delivered pursuant to this Section 4.5 shall disclose the amount
available for Restricted Payments (as defined in the Indenture)
pursuant to Section 10.9 of the Indenture, and shall be
accompanied by a certificate of an officer of the Company stating
that (x) such officer does not have knowledge of the existence
during or at the end of such accounting period of any condition
or event that constitutes an Event of Default or Default, or (y)
if such condition or event existed or then currently exists,
specifying the nature and period of existence thereof and what
action Funding or the Partnership has taken, is taking, or
proposes to take in connection therewith.
4.5.3. Additional Information
Funding or the Partnership shall, from time to time, deliver
such additional information regarding the financial position or
business of Funding or the Partnership as the holders of a
majority of the outstanding principal amount of the Privately
Outstanding Notes may reasonably request, subject in each case to
the confidentiality provisions set forth in Section 4.4 hereof.
4.6. ERISA Compliance
Promptly upon becoming aware of any (i) "reportable event"
(as defined in section 4043(b) of ERISA) for which the giving of
notice to the Pension Benefit Guaranty Corporation has not been
waived, (ii) "complete withdrawal" or "partial withdrawal"
(within the meaning of sections 4203 and 4205 of ERISA) from a
"Multiemployer Plan" (as defined in section 3(37) of ERISA),
(iii) "prohibited transaction" (as defined in section 406 of
ERISA or section 4975 of the Code), (iv) "accumulated funding
deficiency" (as defined in section 412 of the Code), (v) lien
(within the meaning of section 412(n) of the Code or section
302(f) of ERISA), or (vi) requirement to provide security under
section 401(a)(29) of the Code or section 307 of ERISA in
connection with any "employee benefit plan" maintained or
contributed to by the Partnership or, with respect to clauses
(i), (ii), (iv) or (v), any of its "controlled group" (as defined
in section 4001(a)(14) of ERISA for purposes of clause (i) and
(ii) and section 414(b),(c),(m) or (o) of the Code for purposes
of clauses (iv) and (v), and hereinafter referred to as "ERISA
Affiliates") or any trust created thereunder, that may reasonably
be expected to, singly or in the aggregate, result in a liability
that could have a Material Adverse Effect, the Partnership shall
furnish to each holder of Privately Outstanding Notes a written
notice specifying the nature thereof and what action the
Partnership, the Internal Revenue Service, the Pension Benefit
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Guaranty Corporation or any other relevant party is taking or
proposes to take with respect thereto.
4.7. No Bond Necessary
No holder of Privately Outstanding Notes shall be required
to post any bond (but such holder may be required to enter into
an indemnity agreement, at Funding's request, reasonably
satisfactory to Funding and the Trustee) if such holder certifies
that a Privately Outstanding Note has been lost, destroyed or
wrongfully taken and demands that Funding issue and the Trustee
authenticates a replacement Note.
SECTION 5. REPRESENTATIONS AND WARRANTIES
Each of Funding and the Partnership represents and warrants
to each of the Funds as follows:
5.1. Organization, Standing and Qualification
5.1.1. Organization; Standing
Funding is a corporation duly organized and validly existing
under the laws of the State of New Jersey. Funding has all
requisite power and authority to carry on its business as now
conducted and as proposed to be conducted.
The Partnership is a general partnership existing under the
laws of the State of New Jersey. The Partnership has all
requisite power and authority to own or lease, and operate its
properties and assets, and to carry on its business as now
conducted and as proposed to be conducted; and is duly qualified
or licensed to do business and is in good standing in all
jurisdictions in which it owns or leases property or in which the
conduct of its business requires it so to qualify or be licensed,
except where the failure so to qualify would not, singly or in
the aggregate, have a Material Adverse Effect.
5.1.2. Authority
Each of Funding and the Partnership has all requisite power
and authority to enter into and perform all of its respective
obligations under this Agreement and the other Documents to which
it is a party, to issue, sell, and deliver the Senior Notes, and
to carry out the transactions contemplated by this Agreement, the
Registration Statement or any other Document.
5.2. Authorization of Agreement and Other Documents
Each of Funding and the Partnership has taken all action
necessary to authorize it to enter into and perform its
obligations under each of this Agreement and the other Documents
(22)
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to which it is a party and to consummate the transactions
contemplated hereby and thereby (including, without limitation,
the issuance and sale of the Senior Notes). This Agreement is,
and, as of the Closing Date and each of the Documents to which
Funding or the Partnership is a party will be, a legal, valid and
binding obligation of Funding or the Partnership, as the case may
be, enforceable against Funding or the Partnership in accordance
with its terms, except as such enforcement may be subject to (i)
applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and similar laws now or hereafter
affecting creditors' rights and remedies generally and (ii)
general principles of equity (regardless of whether such
enforcement is sought in a proceeding in equity or at law) and
(iii) the New Jersey Casino Control Act and the regulations
promulgated thereunder.
5.3. No Violation
5.3.1. Existing Violations
Neither Funding nor the Partnership is (i) in violation of
its respective Charter Documents or (ii) in default in the
performance of any obligation, agreement or condition contained
in any bond, debenture, note or any other evidence of
indebtedness or in any indenture, mortgage, deed of trust or any
other agreement or instrument to which any of them is a party
other than such defaults that could not, singly or in the
aggregate, reasonably be expected to result in a Material Adverse
Effect. There exists no condition that, with the passage of time
or otherwise, would constitute a violation of such Charter
Documents or a default under any such document or instrument or
result in the imposition of any penalty or the acceleration of
any indebtedness or other obligation other than such defaults
that would not, singly or in the aggregate, result in a Material
Adverse Effect.
5.3.2. Execution of Agreement
Neither the execution or delivery by Funding or the
Partnership of this Agreement or the other Documents to which it
is a party, the issuance, sale or delivery of the Senior Notes,
the performance by Funding or the Partnership of its obligations
pursuant to this Agreement and the other Documents, nor the
consummation of the transactions contemplated hereby or thereby
will conflict with, violate, constitute a breach of or a default
(with the passage of time or otherwise) under, require the
consent of any Person (other than consents already obtained)
under, result in the imposition of any penalty, or result in the
imposition of a Lien (other than pursuant to the Security
Documentation and Liens permitted under the Senior Note
Indenture) on any properties of Funding or the Partnership or an
acceleration of indebtedness or other obligation pursuant to, (i)
(23)
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the Charter Documents of Funding or the Partnership, (ii) any
bond, debenture, note or any other evidence of indebtedness or
any indenture, mortgage, deed of trust or any other agreement or
instrument to which Funding or the Partnership is a party or by
which it is bound or to which any of its property or assets is
subject, or (iii) any Applicable Law, except in any case where
such violation, default, breach or conflict, or the absence of
such consent or the creation of such Lien, would not, singly or
in the aggregate, result in a Material Adverse Effect.
5.4. Use of Proceeds
The proceeds from the sale of the Senior Notes shall be used
by Funding or the Partnership (i) to fund the optional redemption
at 75% of the principal amount thereof of the 9.5% Mortgage Bonds
due 1998 of Funding that remain outstanding after the
consummation of Exchange Offer which is a part of the
Recapitalization Transactions, (ii) to pay all or a portion of
the transaction costs incurred by Funding and the Partnership in
consummating the Recapitalization Transactions, (iii) to repay in
full, with accrued but unpaid interest, the $7,000,000 Midlantic
Grid Note dated May 29, 1992, and (iv) to fund an amount,
estimated at the Closing Date, sufficient to meet any obligations
arising our of statutory appraisal rights of holders of not more
than 5% of the outstanding common stock of TC/GP, Inc. arising
out of the Recapitalization Transactions.
5.5. No Default
Were the Senior Note Indenture, the Registration Rights
Agreement and the Security Documentation in effect as of the date
hereof, after giving effect to the transactions contemplated
hereby and the Recapitalization Transactions, including
application of proceeds from the sale of the Senior Notes, there
would be no Default, Event of Default thereunder or breach
thereof.
5.6. Full Disclosure
The Registration Statement, including the financial
statements included therein, complies with all applicable
provisions of the Securities Act in all material respects and
contains all statements required to be stated therein in
accordance with the Securities Act. None of the Registration
Statement, this Agreement or any of the other Documents
contained, as of its respective date, or would now contain were
the information contained therein made available to you as of the
date of this Agreement, any untrue statement of a material fact
or as of such date omitted, or now omits, to state a material
fact necessary to make the statements contained herein or
therein, when taken as a whole in light of the circumstances
under which they were made, not misleading.
(24)
<PAGE>
5.7. ERISA
The execution and delivery of this Agreement, the other
Documents and the sale of the Senior Notes to be purchased by the
Funds do not involve any "prohibited transaction" by Funding or
the Partnership. Neither Funding nor the Partnership is a "party
in interest" or a "disqualified person" with respect to a
qualified trust except as to those employee benefit plans set
forth on Schedule 2.3.3. No condition exists or event or
transaction has occurred in connection with any "employee benefit
plan" maintained or contributed to by Funding or the Partnership
or any of their ERISA Affiliates (any plan being herein referred
to as the "Pension Plan") that could result in Funding the
Partnership or any such ERISA Affiliate incurring any liability,
fine or penalty which would, singly or in the aggregate, have a
Material Adverse Effect. With respect to any Pension Plan, other
than a Multiemployer Plan, that is subject to Title IV of ERISA,
(a) the fair market value of the assets of such Pension Plan
equals or exceeds (and will equal or exceed immediately
subsequent to the consummation of the transactions contemplated
hereby) the present value of the liabilities of such Pension Plan
(as determined in accordance with the actuarial methods and
assumptions set forth in the latest actuarial report for such
Pension Plan), except where the failure so to equal or exceed
would not, singly or in the aggregate, have a Material Adverse
(25)
<PAGE>
Effect and (b) there exists (and will exist immediately
subsequent to the consummation of the transactions contemplated
hereby) no accumulated funding deficiency.
The representation of Funding and the Partnership in the
first sentence of the preceding paragraph is made in reliance
upon, and is subject to, the accuracy of each Fund's
representations in section 2.3.3 hereof.
5.8. Compliance with Laws
Neither Funding nor the Partnership is in violation of any
Applicable Law, except such violations as may not, singly or in
the aggregate, have a Material Adverse Effect. Each of Funding
and the Partnership has obtained and holds all licenses, permits,
franchises and other governmental authorizations necessary to the
ownership or operation of its properties or the conduct of its
business as currently conducted, except such failures as would
not, singly or in the aggregate, have a Material Adverse Effect.
5.9. Consents
No consent, approval or authorization of, or filing,
registration or qualification with, any Person or any
governmental or regulatory authority or body is required in
connection with or as a condition to the execution and delivery
of this Agreement or any of the other Documents or the
consummation of transactions contemplated hereby or thereby
(including, without limitation, the offer, issuance, sale or
delivery of the Senior Notes at the Closing), except for such
(i) consents, approvals, authorizations, filings, registrations
or qualifications as have been made or obtained on or before the
Closing Date (and copies of which will be delivered to the Funds
upon their request) or are not required to be made or obtained
prior to the Closing Date and (ii) the filing of mortgages,
financing statements and any other security documents pursuant to
the Security Documentation, and except to the extent that the
failure to obtain any such consents, approvals, authorizations or
qualifications or to make any such filings or registrations could
not, singly or in the aggregate, have a Material Adverse Effect.
5.10. No Violation of Regulations of Board of Governors of
Federal Reserve System
None of the transactions contemplated by this Agreement
(including, without limitation, the use of the proceeds from the
sale of the Senior Notes) shall violate or result in a violation
by Funding or the Partnership of Section 7 of the Exchange Act
including, without limitation, Regulations G, T, U and X of the
Board of Governors of the Federal Reserve System. No part of the
proceeds of the sale of the Senior Notes will be used directly or
indirectly for the purpose of purchasing or carrying any margin
securities within the meaning of Regulation G.
5.11. Private Offering
5.11.1. Sale Exempt
Assuming the correctness of the representations made by the
Funds in Section 2.3 hereof, the sale of the Senior Notes
hereunder is exempt from the registration and prospectus delivery
requirements of the Securities Act and it is not necessary in
connection with the sale of the Senior Notes to the Funds in
accordance herewith to qualify the Indenture under the Trust
Indenture Act of 1939, as amended.
5.11.2. No General Solicitation
In the case of each offer or sale of the Senior Notes, no
form of general solicitation or general advertising was used by
Funding or the Partnership or any of their officers, directors or
employees including, but not limited to, advertisements,
(26)
<PAGE>
articles, notices or other communications published in any
newspaper, magazine or similar medium or broadcast over
television or radio, or any seminar or meeting whose attendees
had been invited by any general solicitation or general
advertising. No offers were made by Funding or the Partnership
or any of their officers, directors or employees other than to
persons whom the offeror reasonably believed to be accredited
investors or sophisticated purchasers as those terms have been
construed under Section 4(2) of the Securities Act. The Funds
are the sole purchasers of the Senior Notes. No securities of
the same class as any of the Senior Notes have been issued and
sold by the Company within the six-month period immediately prior
to the date hereof. Each of Funding and the Partnership agrees
that neither it nor anyone acting on its behalf, will offer any
Senior Notes so as to bring the issuance and sale of any of the
Senior Notes within the provisions of Section 5 of the Securities
Act nor offer any similar securities for issuance or sale to, or
solicit any offer to acquire any of the same from, or otherwise
approach or negotiate with respect thereto with anyone if the
sale of any of the Senior Notes and any such securities could be
integrated as a single offering for purposes of the Securities
Act.
5.12. Governmental Regulations
Except for the required approval of the Recapitalization
Transactions and the issuance and sale of the Senior Notes by the
New Jersey Casino Control Commission, which approval has been
obtained, neither Funding nor the Partnership is subject to
regulation, or will become subject to regulation upon the
consummation of the transactions contemplated by this Agreement
or any of the other Documents, under the Investment Company Act
of 1940, as amended, or any Federal or state statute or
regulation limiting its ability to incur or assume indebtedness
for borrowed money or consummate the transactions contemplated
hereby.
5.13. Survival of Indemnification and Contribution and
Representations and Warranties
All of the representations and warranties of Funding and the
Partnership in this Agreement, the Registration Statement and the
other Documents and in any other document, financial statement or
other instrument or certificate delivered to the Funds by or on
behalf of Funding or the Partnership in connection with this
Agreement and the Documents and the transactions contemplated
hereby and thereby shall be deemed to constitute representations
and warranties hereunder and shall be true in all material
respects at and as of the Closing Date, after giving effect to
the transactions contemplated hereby.
(27)
<PAGE>
All of the obligations to indemnify the Funds and contribute
to the Funds' losses contained in this Agreement and the other
Documents and in any other document, financial statement or other
instrument or certificate delivered to the Fund by or on behalf
of Funding or the Partnership in connection with this Agreement
and the Documents and the transactions contemplated hereby and
thereby and all of the representations and warranties of Funding
or the Partnership shall survive the execution and delivery of
this Agreement and the other Documents, any investigation by the
Funds and the issuance of the Senior Notes.
SECTION 6. MISCELLANEOUS
6.1. Notices
All notices and other communications provided for or
permitted under this Agreement shall be made in writing by hand--
delivery, next-day air courier, certified first-class mail,
return receipt requested, telex, or facsimile:
(a) if to any Fund, at its address set forth on the
signature page for such Fund, with a copy to Ropes & Gray, One
International Place, Boston, Massachusetts 02110, Attention:
Robert L. Nutt, Esq; and
(b) if to Funding or the Partnership, at its address set
forth on the first page of this Agreement, with a copy to Willkie
Farr & Gallagher, One Citicorp Center, 153 East 53rd Street, New
York, New York 10022, Attention: Thomas M. Cerabino, Esq.
All such notices and communications shall be deemed to have
been duly given: when delivered by hand, if personally delivered;
one business day after being timely delivered to a next-day air
courier; five business days after being deposited in the mail,
postage prepaid, if mailed; when answered back if telexed; and
when receipt is acknowledged by the recipient's telecopier
machine, if telecopied.
6.2. Successors and Assigns
This Agreement shall inure to the benefit of and be binding
upon the successors and assigns of each of the parties, and to
the extent set forth in Sections 2.6 and 2.7 hereof, the
Indemnified Parties and their respective heirs, personal
representatives, successors and assigns, and no other persons
shall acquire or have any right under or by virtue of this
Agreement.
6.3. Amendment and Waiver
Prior to the Closing Date, this Agreement and the other
Documents may be amended, modified or supplemented, and waivers
or consents to departures from the provisions hereof may be
given, provided that the same are in writing and signed by you
and the Partnership. Thereafter, this Agreement may only be
(28)
<PAGE>
amended, and such waivers be given, with the consent of the
holders of a majority of the then outstanding aggregate principal
amount of the Senior Notes (other than Senior Notes owned or
acquired by Funding, the Partnership or any of their Affiliates).
6.4. Counterparts
This Agreement may be executed in any number of counterparts
and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of
which taken together shall constitute one and the same agreement.
6.5. Headings
The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the
meaning hereof.
6.6. Governing Law
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO
CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW YORK,
WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW. EACH OF
FUNDING AND THE PARTNERSHIP HEREBY IRREVOCABLY SUBMITS TO THE
JURISDICTION OF ANY NEW YORK STATE COURT SITTING IN THE BOROUGH
OF MANHATTAN, CITY OF NEW YORK, OR ANY FEDERAL COURT SITTING IN
THE BOROUGH OF MANHATTAN, CITY OF NEW YORK IN RESPECT OF ANY
SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT, AND IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF
ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE JURISDICTION OF
THE AFORESAID COURTS. NOTHING HEREIN SHALL AFFECT THE RIGHT OF
ANY FUND TO SERVE PROCESS IN ANY MANNER PERMITTED BY LAW OR TO
COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST FUNDING
OR THE PARTNERSHIP IN ANY OTHER JURISDICTION.
6.7. Entire Agreement
This Agreement, together with the other Documents and the
Senior Notes, are intended by the parties as a final expression
of their agreement and intended to be a complete and exclusive
statement of the agreement and understanding of the parties
hereto in respect of the subject matter contained herein and
therein. There are no restrictions, promises, warranties or
undertakings, other than those set forth or referred to herein
and therein. This Agreement, together with the other Documents
and the Senior Notes, supersedes all prior agreements and
understandings between the parties with respect to such subject
matter.
(29)
<PAGE>
<PAGE>
6.8. Severability
If any term, provision, covenant or restriction of this
Agreement is held by a court of competent jurisdiction to be
invalid, illegal, void or unenforceable, the remainder of the
terms, provisions, covenants and restrictions set forth herein
shall remain in full force and effect and shall in no way be
affected, impaired or invalidated, and the parties hereto shall
use their best efforts to find and employ an alternative means to
achieve the same or substantially the same result as that
contemplated by such term, provision, covenant or restriction.
It is hereby stipulated and declared to be the intention of the
parties that they would have executed the remaining terms,
provisions, covenants and restrictions without including any of
such that may be hereafter declared invalid, illegal, void or
unenforceable.
If this Agreement is satisfactory to each of the Funds,
please so indicate by signing the acceptance on a counterpart of
this Agreement and return such counterpart to Funding whereupon
this Agreement will become binding between us in accordance with
its terms.
Very truly yours,
TRUMP'S CASTLE FUNDING, INC.
By:_____________________________
Name:
Title:
TRUMP'S CASTLE ASSOCIATES
By:_____________________________
Name:
General Partner
(30)
<PAGE>
<PAGE>
PURCHASE AGREEMENT SIGNATURE
EACH Fund EXECUTING THIS SIGNATURE PAGE ON BEHALF OF ONE OR MORE
MANAGED ACCOUNTS SHOULD PROVIDE THE NAME OF, AND THE REQUESTED
INFORMATION WITH RESPECT TO, EACH
MANAGED ACCOUNT.
Accepted and Agreed as of [This is a model. A
the date first above written separate signature
signature page must be
____________________________ prepared for each
Name of Fund Fund.]
By:_________________________
Name:
Title:
Address: c/o Putnam Investments
One Post Office Square
Boston, MA 02109
Telephone: (617) 292-1458
Telecopy: (617) 292-1625
Telex:
Nominee (name in which the Senior Notes Mail Payment Notices to:
are to be registered, if different
than name of Fund): Bankers Trust Company :
Private Placement
P.O. Box 998 :
Bowling Green Station :
New York, New York 10274
Muico & Co. (096120)
Tax I.D. Number: 13-6355402
Designated Physical Delivery
Bank: Bankers Trust Company
Address:P.O. Box 704, Bankers Trust Company
Church Street Station Mutual Funds
New York, New York 10015 14 Wall Street, 5th Floor
ABA No.: 021001033 New York, New York 10005
Account
No.: 99089454
Attention: Steve Bolinger
Aggregate principal amount
of Senior Notes of the Company to
be purchased by you: $_________________<PAGE>
The foregoing Note Purchase Agreement relating to the 11 1/2%
Senior Secured Notes Due 2000 of Trump's Castle Funding, Inc. is
herby accepted and agreed to this 28th day of December, 1993
PUTNAM PREMIER INCOME TRUST $____________
PUTNAM MASTER INCOME TRUST $____________
PUTNAM CAPITAL MANAGER TRUST
- PCM HIGH YIELD FUND $____________
PUTNAM MASTER INTERMEDIATE
INCOME TRUST $____________
PUTNAM DIVERSIFIED INCOME TRUST $____________
PUTNAM MANAGED HIGH YIELD TRUST $____________
PUTNAM CAPITAL MANAGER TRUST
- PCM DIVERSIFIED INCOME FUND $____________
PUTNAM HIGH YIELD ADVANTAGE FUND $____________
PUTNAM HIGH YIELD TRUST $____________
PUTNAM HIGH INCOME CONVERTIBLE
AND BOND FUND $____________
By___________________________
Name: John R. Verani
Title: Vice President
(32)
Exhibit A
Form of Senior Note Indenture
<PAGE>
Exhibit B
Form of Registration Rights Agreement
<PAGE>
Exhibit C
Form of Indenture of Mortgage and Security Agreement
(Senior Note Mortgage)<PAGE>
Exhibit D
Form of Indenture of Mortgage and Security Agreement
(Senior Guarantee Mortgage)
<PAGE>
Exhibit E
Form of Opinion of Willkie Farr & Gallagher
<PAGE>
Schedule 2.3.3
Benefit Plans
PLEDGE AGREEMENT
dated as of December 28, 1993
by
TRUMP'S CASTLE FUNDING, INC.,
a New Jersey corporation, as Pledgor
to
FIRST BANK NATIONAL ASSOCIATION,
as Trustee under the PIK Note Indenture, as Pledgee
Prepared by_________________________
John A. Ritsher, Esq.
Ropes & Gray
One International Place
Boston, Massachusetts 02110
(617) 951-7000
<PAGE>
PLEDGE AGREEMENT
This PLEDGE AGREEMENT (the "Pledge") dated as of December
28, 1993 from TRUMP'S CASTLE FUNDING, INC., a New Jersey
corporation ("Pledgor"), to FIRST BANK NATIONAL ASSOCIATION, a
national banking association, as Trustee under the Indenture, as
defined below ("Pledgee") and as successor trustee to First
Fidelity Bank, National Association.
W I T N E S S E T H:
WHEREAS, Pledgor, a wholly-owned subsidiary of Trump's
Castle Associates, a New Jersey general partnership (the
"Partnership"), functions as the Partnership's financing vehicle
by advancing to the Partnership the proceeds of various issues of
Pledgor's debt securities against receipt of the Partnership's
promissory notes; and
WHEREAS, pursuant to a recapitalization of Pledgor
consummated on December 28, 1993, the outstanding 9.5% Mortgage
Bonds due 1998 of Pledgor were exchanged for (i) $242,141,304
aggregate principal amount of Pledgor's 11 3/4% Mortgage Notes
due 2003 (the "Mortgage Notes"), issued pursuant to an Indenture
of even date herewith entered into by the Pledgor, as issuer, the
Partnership, as guarantor, and the Pledgee, as Indenture Trustee
(the "Mortgage Note Indenture") and (ii) up to $50,499,476
aggregate principal amount of Pledgor's Increasing Rate
Subordinated Pay-in-Kind Notes due 2005 (the "PIK Notes") (the
recipients of the PIK Notes being referred to herein as the
"Holders"), issued pursuant to a separate indenture (the "PIK
Note Indenture"), and concurrently therewith the Partnership in
exchange for the surrender of its prior promissory notes issued
to the Pledgor two new notes, each dated concurrently herewith,
in the principal amounts of $242,141,304 (the "Partnership
Note"), and $50,499,476 (the "Subordinated Partnership Note"),
respectively, the Subordinated Partnership Note, and terminated
the Old Mortgage Documents; and
WHEREAS, pursuant to the provisions of the recapitalization
and in order to secure the payment of the PIK Notes and all other
payments due to the Holders thereof or the Trustee under the PIK
Note Indenture, the Pledgor desires to enter into this Pledge
Agreement for the purpose of assigning to the Trustee all of its
right, title and interest in and to the Subordinated Partnership
Note; and
WHEREAS, certain terms defined in the PIK Note Indenture are
used herein with the meanings there provided.
(1)
<PAGE>
NOW, THEREFORE, THIS PLEDGE
FURTHER WITNESSETH:
Pledgor, for good and valuable consideration, the receipt of
which is hereby acknowledged, does hereby sell, assign and
transfer unto Pledgee and unto its successors and to its assigns
forever, for its benefit and for the benefit of the Holders, and
does hereby grant to Pledgee a security interest in and to all of
Pledgor's estate, right, title and interest in, to and under any
and all of the following described property, rights and interests
(collectively, the "Pledged Collateral"):
GRANTING CLAUSE FIRST
All right, title and interest of Pledgor in and to the
Subordinated Partnership Note, including all renewals, extensions
and modifications of the same, and, without limiting the
generality of the foregoing, the present, continuing and future
right to make claim for, collect or cause to be collected,
receive or cause to be received directly from the Partnership
thereunder, all payments of principal, interest and other sums of
money payable thereunder.
TO HAVE AND TO HOLD all of said properties, rights and
interests unto Pledgee and its successors and assigns forever.
THIS Pledge FURTHER WITNESSETH, that Pledgor hereby agrees
and covenants with Pledgee as follows:
ARTICLE I
PARTICULAR COVENANTS OF PLEDGOR
Section 1.01. Performance of Covenants. Pledgor
represents, warrants and covenants that it is duly authorized to
enter into this Pledge, and to grant and convey a lien on and
security interest in the Pledged Collateral to Pledgee in the
manner and to the extent herein set forth and that all action on
its part required for the execution and delivery of this Pledge
has been duly and effectively taken.
Section 1.02. Further Action Required.
(a) Pledgor covenants that it will, from time to time,
execute and deliver such further instruments and take such
further actions as may be required to carry out the purposes of
this Pledge.
(b) Pledgor hereby appoints Pledgee as its lawful attorney-
in-fact (such power being coupled with an interest) in the name
of Pledgor or Pledgee or both to execute any instruments or to
(2)
<PAGE>
take any actions to enforce all rights, powers and remedies of
Pledgor under or pursuant to the Pledged Collateral.
(c) Nothing contained herein shall limit the rights of
Pledgee contained in the PIK Note Indenture.
ARTICLE II
OBLIGATIONS OF PLEDGEE
Section 2.01. Continuing Obligations.
(a) Pledgee shall have no obligation, duty or liability with
respect to the Pledged Collateral or any of them (other than
those specifically assumed in its capacity as Trustee pursuant to
the PIK Note Indenture).
(b) Pledgor shall at all times remain liable to observe and
perform all of its covenants and obligations, if any, under the
Pledged Collateral, and does hereby agree to indemnify and hold
harmless Pledgee, its successors and assigns, from any liability,
loss, damage or expense it or they may incur under the Pledged
Collateral or by reason of this Pledge.
ARTICLE III
PAYMENTS
Section 3.01. Payments. All Revenues (as hereinafter
defined) due and to become due under or pursuant to the Pledged
Collateral shall be paid by the Partnership directly to Pledgee
at the address set forth in Section 6.02 hereof.
Section 3.02. Acknowledgment. The Partnership hereby joins
in the execution of this Pledge to acknowledge (i) the assignment
by Pledgor to Pledgee of Pledgor's right, title and interest in,
to and under the Pledged Collateral, (ii) the Partnership's
agreement to make payment of all Revenues under the Pledged
Collateral directly to Pledgee at the address set forth in this
Pledge, and (iii) the right of Pledgee to exercise or enforce in
its own name, in the name of Pledgor, or both, all of the rights,
powers and remedies of Pledgor in, to and under the Pledged
Collateral.
Section 3.03. Revenues. As used herein, the term
"Revenues" shall mean (a) all amounts paid or payable by the
Partnership under the Subordinated Partnership Note, and (b) the
net proceeds realized upon or as a result of the enforcement of
the security interest granted in the Pledged Collateral or under
(3)
<PAGE>
this Pledge or upon or as a result of the exercise of any right
or remedy under this Pledge.
Section 3.04. Confirmation. Pledgor hereby agrees, and the
Partnership hereby acknowledges, that the Partnership may rely
exclusively on Pledgee's directive that Pledgee is entitled to
take action under this Pledge.
ARTICLE IV
DEFAULT PROVISIONS AND REMEDIES
Section 4.01. Enforcements of Remedies.
(a) Upon the occurrence and continuance of any Event of
Default (as such term is defined in the PIK Note Indenture; each
an "Event of Default"), Pledgee may (upon the direction of the
Holders or, if the rights of the Holders would be prejudiced by
any delay in taking such action, without the direction of the
Holders), at its option, (i) proceed directly to protect and
enforce its rights and the rights of any Holders under this
Pledge or pursuant to the Pledged Collateral by such suits,
actions or special proceedings in equity or at law, or by
proceedings in the office of any board or officer having
jurisdiction, either for the specific performance of any covenant
or agreement contained herein, or in the Pledged Collateral or in
aid of execution of any power granted herein or pursuant to the
Pledged Collateral or for the enforcement of any proper legal or
equitable remedy, subject to statutory and other legal
requirements, as Pledgee shall deem most effective to protect and
enforce such rights, and Pledgor hereby appoints Pledgee as its
lawful attorney-in-fact (such power being coupled with an
interest) in the name of Pledgor or Pledgee or both to effectuate
such remedies; or (ii) instruct, direct and cause Pledgor to
effectuate the foregoing on behalf of and for the benefit of
Pledgee and the Holders, it being further understood that the
Partnership joins in the execution of this Pledge in order to
acknowledge its agreement to promptly and duly execute and
deliver any and all documents and take any and all actions
required by Pledgee in order to permit Pledgee to obtain the
benefits of this Pledge, as aforesaid.
(b) Upon the occurrence and continuance of any such Event of
Default, Pledgee shall (upon the direction of the Holders or, if
the rights of the Holders would be prejudiced by any delay in
taking such action, without the direction of the Holders) be
entitled to sue for, enforce payment of and receive any and all
amounts then and at any time remaining due from Pledgor or the
Partnership for principal and interest on the Subordinated
Partnership Note, with interest on overdue payments of such
principal, as set forth in the Subordinated Partnership Note,
(4)
<PAGE>
from the date of such Event of Default to the date of such
payment, together with any and all fees, costs and expenses of
collection (including reasonable attorneys' fees and court
costs), subject to statutory and other legal requirements.
(c) Regardless of the occurrence of an Event of Default,
Pledgee may institute and maintain or cause in the name of
Pledgor or Pledgee or both to be instituted and maintained such
suits and proceedings as Pledgee may be advised by its counsel
shall be necessary and appropriate to prevent any impairment of
the Pledged Collateral, or any of them, and to protect its
interests in the Pledged Collateral, and in the revenues and
other income arising therefrom, including power to institute and
maintain proceedings to restrain the enforcement or compliance
with any governmental enactment, rule or order that may be
unconstitutional or otherwise invalid, if the enforcement of or
compliance with such enactment, rule or order would impair the
security hereunder or would be materially prejudicial to the
interest of the Pledgee.
(d) Nothing contained in this Article IV is intended to
grant Pledgee any greater remedies and rights than those allowed
to Pledgor in the Pledged Collateral. In the event or any
conflict between the remedies and rights contained in any of the
Pledged Collateral and the remedies and rights contained in this
Article IV, the remedies and rights set forth in the applicable
Assigned Property shall govern.
ARTICLE V
DISCHARGE OF PLEDGE
Section 5.01. Discharge of Pledge. If Pledgor shall pay or
cause to be paid, or there shall otherwise be paid, to Pledgee
and/or the Holders, all amounts required to be paid by Pledgor
pursuant to the PIK Note Indenture and the PIK Notes, and the
conditions precedent for the PIK Note Indenture to cease,
determine and become null and void (except for any surviving
rights of transfer or exchange of the PIK Notes and any right to
receive payments of principal and interest as provided in Article
Thirteen or Section 10.3 of the PIK Note Indenture) in accordance
with Section 5.01 of the PIK Note Indenture, Pledgee shall
promptly cancel and discharge of record this Pledge and any
financing statements filed in connection herewith and execute and
deliver to Pledgor and to the Partnership all such instruments as
may be appropriate to evidence such discharge and satisfaction of
any lien or liens, and Pledgee shall pay over or deliver to
Pledgor all other moneys and securities held by it pursuant to
this Pledge, which are not required for the payment of (a)
principal and redemption price, if applicable, of and interest
on, the PIK Notes and (b) and all other amounts required to be
(5)
<PAGE>
paid by Pledgor pursuant to the PIK Note Indenture and the PIK
Notes.
ARTICLE VI
MISCELLANEOUS PROVISIONS
Section 6.01. Binding Successors and Assigns. All of the
covenants, stipulations, obligations and agreements contained
in this Pledge shall be binding upon and inure to the benefit of
Pledgor, Pledgee and the Partnership and their respective
successors and assigns.
Section 6.02. Notices.
Any request, notice, demand, authorization, direction,
request or other instrument authorized or required by this Pledge
to be given to or filed with Pledgor, Pledgee, or the Partnership
(collectively "Notices") shall be deemed given when either (i)
delivered by hand (including by overnight courier) or (ii) two
days after sending by registered or certified mail, postage
prepaid, addressed as follows:
(i) To Pledgee:
First Bank National Association
c/o First Trust National Association
180 East Fifth Street
St. Paul, Minnesota 55010
Attention: Corporate Trust and Agency Group
(ii) To Pledgor:
Trump's Castle Funding, Inc.
Trump Castle Casino Resort by the Bay
Brigantine Boulevard at Huron Avenue
Atlantic City, New Jersey 08401
Attention: Chief Executive Officer
and
The Trump Organization, Inc.
725 Fifth Avenue
New York, New York 10022
Attention: Donald J. Trump
(6)
<PAGE>
(iii) To the Partnership:
Trump's Castle Associates
Trump Castle Casino Resort by the Bay
Brigantine Boulevard at Huron Avenue
Atlantic City, New Jersey 08401
Attention: Chief Executive Officer
and
The Trump Organization, Inc.
725 Fifth Avenue
New York, New York 10022
Attention: Donald J. Trump
and
Willkie Farr & Gallagher
One Citicorp Center
153 East 53rd Street
New York, New York 10022
Attention: Thomas M. Cerabino, Esq.
(b) By Notice to the Partnership, Pledgor and or Pledgee,
given as provided above, any party may designate additional or
substitute addresses for Notices, which shall, notwithstanding
Subsection (a) above, be deemed given when received.
Section 6.04. Partial Invalidity. In case any one or more
of the provisions of this Pledge shall for any reason be held to
be illegal or invalid, such illegality or invalidity shall not
affect any other provision of this Pledge, but this Pledge shall
be construed and enforced at the time as if such illegal or
invalid provisions had not been contained herein or therein, nor
shall such illegality or invalidity or any application thereof
affect any legal and valid application herein or thereof from
time to time.
Section 6.05. Applicable Law. This Pledge shall be
governed by and construed under the internal laws of the State of
New Jersey, without giving effect to the principles of conflicts
of law.
Section 6.06. No Amendments. For so long as the PIK Notes
shall remain outstanding, this Pledge Agreement may not be
modified, amended or terminated except in accordance with the
provisions of the PIK Note Indenture.
(7)
<PAGE>
Section 6.07. Casino Control Act. Each of the provisions
of this Pledge is subject to and shall be enforced in compliance
with the provisions of the New Jersey Casino Control Act.
Section 6.08. Limitation on Liability. Notwithstanding
anything herein or any other agreement, document, certificate,
instrument, statement or omission referred to below to the
contrary, the Partnership and the Pledgor are liable hereunder
only to the extent of the assets of the Partnership and the
interest of the Pledgor in the Pledged Collateral which are
secured by the Partnership's assets and no other person or
entity, including, but not limited to, any partner, officer,
representative, committee or committee member of the Partnership
or any partner therein or of any Affiliate (as defined in the
Indenture) of the Partnership or any incorporator, officer,
director or shareholder of the Pledgor, of any corporate partner
of the Partnership, or of any corporate Affiliate of the
Partnership, or any Affiliate or controlling person or entity of
any of the foregoing, or any agent, employee or lender of any of
the foregoing or any successor, personal representative, heir or
assign of any of the foregoing, in each case past, present or as
they may exist in the future, shall be liable in any respect
(including without limitation for the breach of any
representation, warranty, covenant, agreement, condition or
indemnification or contribution undertaking contained herein or
therein) under, in connection with, arising out of or relating to
this Pledge, or any other agreement, document, certificate,
instrument or statement (oral or written) related to, executed or
to be executed, delivered or to be delivered, or made or to be
made, or any omission made or to be made, in connection with any
of the foregoing or any of the transactions contemplated in any
such agreement, document, certificate, instrument or statement.
Any agreement, document, certificate, statement or other
instrument to be executed simultaneously with, in connection
with, arising out of or relating to this Pledge or any other
agreement, document, certificate, statement or instrument
referred to above, or any agreement, document, certificate,
statement or instrument contemplated hereby shall contain
language mutatis mutandis to this paragraph and, if such language
is omitted, shall be deemed to contain such language.
6.09. Indemnification. Pledgor agrees to indemnify
Pledgee for, and to hold it harmless against, any loss,
liability or expense incurred without negligence or bad faith
on its part, arising out of or in connection with the
acceptance or administration of this Pledge, including the costs
and expenses of defending itself against any claim, or with the
exercise or performance of any of its powers or duties hereunder.
(8)
<PAGE>
<PAGE>
IN WITNESS WHEREOF, Pledgor, Pledgee, and the Partnership
have executed this Pledge as of the date first above written.
TRUMP'S CASTLE FUNDING, INC.
Attest:_____________________ By: _________________________
Secretary Donald J. Trump, President
TRUMP'S CASTLE ASSOCIATES,
a New Jersey general partnership
Attest:_____________________ By: _________________________
Secretary Donald J. Trump,
its Managing Partner
FIRST BANK NATIONAL ASSOCIATION,
as Trustee under the PIK Note
Indenture
Attest:_____________________ By: _________________________
Assistant Secretary Title:
(9)
<PAGE>
<PAGE>
STATE OF NEW YORK ss.:
COUNTY OF NEW YORK
BE IT REMEMBERED, that on _____________, 1993, before me,
the subscriber, personally appeared DONALD J. TRUMP, the Managing
Partner of TRUMP'S CASTLE ASSOCIATES, a New Jersey general
partnership, who, I am satisfied, is the person who has signed
the within instrument on behalf of such general partnership, and
I having first made known to him the contents thereof he
thereupon acknowledged that he signed and delivered the said
instrument in his capacity as such Managing Partner aforesaid,
and that the within instrument is the voluntary act and deed of
said general partnership.
______________________________
Notary Public
(11)
<PAGE>
STATE OF NEW YORK ss.:
COUNTY OF NEW YORK
BE IT REMEMBERED, that on ______________, 1993, before me,
the subscriber, personally appeared DONALD J. TRUMP, the
President of TRUMP'S CASTLE FUNDING, INC., the corporation named
in the within document, who, I am satisfied, is the person who
has signed the within instrument; and I having first made known
to him the contents thereof he acknowledged that he signed,
sealed with the corporate seal and delivered the said instrument
as such officer aforesaid; that the within instrument is the
voluntary act and deed of the corporation, made by virtue of
authority from its Board of Directors.
______________________________
Notary Public
(10)
<PAGE>
<PAGE>
STATE OF NEW YORK ss.:
COUNTY OF NEW YORK
BE IT REMEMBERED, that on December___, 1993, before me, the
subscriber, personally appeared Frank P. Leslie, an Assistant
Vice President of FIRST BANK NATIONAL ASSOCIATION, the
corporation named in the within document, who, I am satisfied, is
the person who has signed the within instrument; and I having
first made known to him the contents thereof he acknowledged that
he signed, sealed with the corporate seal and delivered the said
instrument as such officer aforesaid; that the within instrument
is the voluntary act and deed of the corporation, made by virtue
of authority from its Board of Directors.
_________________________
Notary Public
(12)
<PAGE>
TRUMP'S CASTLE FUNDING, INC., as Issuer
FIRST BANK NATIONAL ASSOCIATION, as Trustee
TRUMP'S CASTLE ASSOCIATES, as Guarantor
_________________
INDENTURE
Dated as of December 28, 1993
_________________
$27,000,000
11-1/2% Senior Secured Notes due 2000
<PAGE>
<PAGE>
TABLE OF CONTENTS
PAGE
RECITALS OF THE ISSUER AND THE PARTNERSHIP . . . . . . . . . . 1
ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF GENERAL
APPLICATION . . . . . . . . . . . . . . . . . . 2
Section 1.1. Definitions. . . . . . . . . . . . . . 2
Acquired Indebtedness . . . . . . . . . . . . . 2
Adjusted Consolidated Interest Expense. . . . . 2
Adjusted Consolidated Net Income (Loss) . . . . 3
Affiliate . . . . . . . . . . . . . . . . . . . 3
Appraised Value . . . . . . . . . . . . . . . . 3
Average Life to Stated Maturity . . . . . . . . 3
Bankruptcy Law. . . . . . . . . . . . . . . . . 4
Board of Directors. . . . . . . . . . . . . . . 4
Board Resolution. . . . . . . . . . . . . . . . 4
Business Day. . . . . . . . . . . . . . . . . . 4
Cage Cash . . . . . . . . . . . . . . . . . . . 4
Capital Lease Obligation. . . . . . . . . . . . 4
Capital Stock . . . . . . . . . . . . . . . . . 4
Casino - Hotel. . . . . . . . . . . . . . . . . 4
Casualty. . . . . . . . . . . . . . . . . . . . 4
CCC . . . . . . . . . . . . . . . . . . . . . . 5
Certificate of Appraised Value. . . . . . . . . 5
Change of Control . . . . . . . . . . . . . . . 5
Code. . . . . . . . . . . . . . . . . . . . . . 5
Collateral. . . . . . . . . . . . . . . . . . . 5
Consolidated Fixed Charge Coverage Ratio. . . . 5
Consolidated Income Tax Expense . . . . . . . . 5
Consolidated Net Worth. . . . . . . . . . . . . 5
Consolidation . . . . . . . . . . . . . . . . . 5
Corporate Trust Office. . . . . . . . . . . . . 6
CRDA. . . . . . . . . . . . . . . . . . . . . . 6
Default . . . . . . . . . . . . . . . . . . . . 6
EBITDA. . . . . . . . . . . . . . . . . . . . . 6
Equity Interest . . . . . . . . . . . . . . . . 6
Equity Offering . . . . . . . . . . . . . . . . 6
Event of Default. . . . . . . . . . . . . . . . 6
Excess Available Cash . . . . . . . . . . . . . 6
Exchange Act. . . . . . . . . . . . . . . . . . 6
F,F&E Financing Agreement . . . . . . . . . . . 6
Fair Market Value . . . . . . . . . . . . . . . 7
Gaming Authority. . . . . . . . . . . . . . . . 7
Generally Accepted Accounting Principles or
GAAP. . . . . . . . . . . . . . . . . . . . . . 7
Guaranteed Debt . . . . . . . . . . . . . . . . 7
Holder. . . . . . . . . . . . . . . . . . . . . 8
Indebtedness. . . . . . . . . . . . . . . . . . 8
Indenture . . . . . . . . . . . . . . . . . . . 9
Indenture Obligations . . . . . . . . . . . . . 9
Interest Payment Date . . . . . . . . . . . . . 9
(I)
<PAGE>
Investments . . . . . . . . . . . . . . . . . . 9
Issuer. . . . . . . . . . . . . . . . . . . . . 9
Issuer Request. . . . . . . . . . . . . . . . . 10
Issuer Order. . . . . . . . . . . . . . . . . . 10
Legal Requirements. . . . . . . . . . . . . . . 10
Lien. . . . . . . . . . . . . . . . . . . . . . 10
Litigation Warrants . . . . . . . . . . . . . . 10
Marina Lease. . . . . . . . . . . . . . . . . . 10
Maturity. . . . . . . . . . . . . . . . . . . . 10
Midlantic Term Loan . . . . . . . . . . . . . . 10
Mortgage Debt . . . . . . . . . . . . . . . . . 10
Mortgage Notes. . . . . . . . . . . . . . . . . 11
NASDAQ. . . . . . . . . . . . . . . . . . . . . 11
Net Cash Proceeds . . . . . . . . . . . . . . . 11
NJDGE . . . . . . . . . . . . . . . . . . . . . 11
Noteholder Representatives. . . . . . . . . . . 11
Officers' Certificate . . . . . . . . . . . . . 11
Opinion of Counsel. . . . . . . . . . . . . . . 11
Outstanding . . . . . . . . . . . . . . . . . . 11
Outstanding Amount. . . . . . . . . . . . . . . 12
Pari Passu Indebtedness . . . . . . . . . . . . 12
Partnership . . . . . . . . . . . . . . . . . . 12
Partnership Agreement . . . . . . . . . . . . . 12
Partnership Note. . . . . . . . . . . . . . . . 13
Paying Agent. . . . . . . . . . . . . . . . . . 13
Permit. . . . . . . . . . . . . . . . . . . . . 13
Permitted Holder. . . . . . . . . . . . . . . . 13
Permitted Indebtedness. . . . . . . . . . . . . 13
Permitted Investment. . . . . . . . . . . . . . 14
Permitted Leases. . . . . . . . . . . . . . . . 15
Person. . . . . . . . . . . . . . . . . . . . . 16
PIK Notes . . . . . . . . . . . . . . . . . . . 16
Predecessor Senior Note . . . . . . . . . . . . 16
Preferred Stock . . . . . . . . . . . . . . . . 16
Public Offering . . . . . . . . . . . . . . . . 16
Qualified Capital Stock . . . . . . . . . . . . 16
Qualified Equity Interest . . . . . . . . . . . 17
Redeemable Capital Stock. . . . . . . . . . . . 17
Redeemable Equity Interest. . . . . . . . . . . 17
Redemption Date . . . . . . . . . . . . . . . . 17
Redemption Price. . . . . . . . . . . . . . . . 17
Regular Record Date . . . . . . . . . . . . . . 17
Responsible Officer . . . . . . . . . . . . . . 17
Restoration . . . . . . . . . . . . . . . . . . 17
SEC . . . . . . . . . . . . . . . . . . . . . . 17
Securities Act. . . . . . . . . . . . . . . . . 18
Senior Assignment Agreement . . . . . . . . . . 18
Senior Guarantee. . . . . . . . . . . . . . . . 18
Senior Guarantee Mortgage . . . . . . . . . . . 18
Senior Indebtedness . . . . . . . . . . . . . . 18
Senior Note Indenture . . . . . . . . . . . . . 18
Senior Note Mortgage. . . . . . . . . . . . . . 18
(II)
<PAGE>
Senior Note Register. . . . . . . . . . . . . . 18
Senior Notes. . . . . . . . . . . . . . . . . . 19
Senior Partnership Note . . . . . . . . . . . . 19
Series A Notes and Series B Notes . . . . . . . 19
Services Agreement. . . . . . . . . . . . . . . 19
Services Fee. . . . . . . . . . . . . . . . . . 19
Special Record Date . . . . . . . . . . . . . . 19
Stated Maturity . . . . . . . . . . . . . . . . 19
Subordinated Indebtedness . . . . . . . . . . . 19
Subsidiary. . . . . . . . . . . . . . . . . . . 19
Taking. . . . . . . . . . . . . . . . . . . . . 19
Temporary Cash Investments. . . . . . . . . . . 19
Total Taking or Casualty. . . . . . . . . . . . 20
Trust Indenture Act . . . . . . . . . . . . . . 20
Trustee . . . . . . . . . . . . . . . . . . . . 20
Voting Stock. . . . . . . . . . . . . . . . . . 20
Wholly-owned Subsidiary . . . . . . . . . . . . 20
Working Capital Facility. . . . . . . . . . . . 20
Section 1.2. Other Definitions.. . . . . . . . . . 21
Section 1.3. Compliance Certificates and
Opinions. . . . . . . . . . . . . . . 21
Section 1.4. Form of Documents Delivered to
Trustee . . . . . . . . . . . . . . . 22
Section 1.5. Acts of Holders . . . . . . . . . . . 23
Section 1.6. Notices, etc., to Trustee, the
Issuer, the Partnership, the CCC and
the NJDG. . . . . . . . . . . . . . . 23
Section 1.7. Notice to Holders; Waiver . . . . . . 24
Section 1.8. Conflict with Trust Indenture Act.. . 25
Section 1.9. Effect of Headings and Table of
Contents. . . . . . . . . . . . . . . 25
Section 1.10. Successors and Assigns. . . . . . . . 25
Section 1.11. Separability Clause . . . . . . . . . 25
Section 1.12. Benefits of Indenture . . . . . . . . 25
Section 1.13. GOVERNING LAW . . . . . . . . . . . . 25
Section 1.14. Casino Control Act. . . . . . . . . . 25
Section 1.15. Legal Holidays. . . . . . . . . . . . 26
Section 1.16. Schedules.. . . . . . . . . . . . . . 26
Section 1.17. Counterparts. . . . . . . . . . . . . 26
ARTICLE TWO FORM OF SENIOR NOTES. . . . . . . . . . . . . . 26
Section 2.1 Forms Generally . . . . . . . . . . . 26
Section 2.2. Form of Face of the Senior Notes. . . 27
Section 2.3. Form of Reverse of the Senior
Notes.. . . . . . . . . . . . . . . . 30
Section 2.4. Form of Trustee's Certificate of
Authentication. . . . . . . . . . . . 35
Section 2.5 Form of Senior Guarantee. . . . . . . 35
ARTICLE THREE THE SENIOR NOTES. . . . . . . . . . . . . . . . 36
Section 3.1. Title and Terms . . . . . . . . . . . 36
Section 3.2. Denominations . . . . . . . . . . . . 38
(iii)
<PAGE>
Section 3.3. Execution, Authentication, Delivery
and Dating. . . . . . . . . . . . . . 38
Section 3.4. Temporary Securities. . . . . . . . . 39
Section 3.5. Registration, Registration of
Transfer and Exchange . . . . . . . . 40
Section 3.6. Mutilated, Destroyed, Lost and
Stolen Senior Notes . . . . . . . . . 42
Section 3.7. Payment of Interest . . . . . . . . . 43
Section 3.8. Persons Deemed Owners . . . . . . . . 44
Section 3.9. Cancellation. . . . . . . . . . . . . 44
Section 3.10. Computation of Interest . . . . . . . 45
Section 3.11. Non-recourse. . . . . . . . . . . . . 45
ARTICLE FOUR DEFEASANCE AND COVENANT DEFEASANCE. . . . . . . 46
Section 4.1. Option to Effect Defeasance or
Covenant Defeasance . . . . . . . . . 46
Section 4.2. Defeasance and Discharge. . . . . . . 46
Section 4.3. Covenant Defeasance . . . . . . . . . 46
Section 4.4. Conditions to Defeasance or Covenant
Defeasance. . . . . . . . . . . . . . 47
Section 4.5. Deposited Money and U.S. Government
Obligations to be Held in Trust;
Other Miscellaneous Provisions. . . . 49
Section 4.6. Reinstatement . . . . . . . . . . . . 50
ARTICLE FIVE REMEDIES. . . . . . . . . . . . . . . . . . . . 50
Section 5.1. Events of Default . . . . . . . . . . 50
Section 5.2. Acceleration of Maturity; Rescission
and Annulment . . . . . . . . . . . . 53
Section 5.3. Collection of Indebtedness and Suits
for Enforcement by Trustee. . . . . . 54
Section 5.4. Trustee May File Proofs of Claim. . . 55
Section 5.5. Trustee May Enforce Claims Without
Possession of the Senior Notes. . . . 56
Section 5.6. Application of Money Collected. . . . 56
Section 5.7. Limitation on Suits . . . . . . . . . 57
Section 5.8. Unconditional Right of Holders to
Receive Principal, Premium and
Interest. . . . . . . . . . . . . . . 58
Section 5.9. Restoration of Rights and Remedies. . 58
Section 5.10. Rights and Remedies Cumulative. . . . 58
Section 5.11. Delay or Omission Not Waiver. . . . . 58
Section 5.12. Control by Holders. . . . . . . . . . 59
Section 5.13. Waiver of Past Defaults . . . . . . . 59
Section 5.14. Undertaking for Costs . . . . . . . . 59
Section 5.15. Waiver of Stay, Extension or Usury
Laws. . . . . . . . . . . . . . . . . 60
Section 5.16. Unconditional Right of Holders to
Institute Certain Suits . . . . . . . 60
Section 5.17. Management of Casino-Hotel. . . . . . 60
(iv)
<PAGE>
ARTICLE SIX THE TRUSTEE . . . . . . . . . . . . . . . . . . 62
Section 6.1. Duties of Trustee and Notice of
Defaults. . . . . . . . . . . . . . . 62
Section 6.2. Certain Rights of Trustee . . . . . . 64
Section 6.3. Trustee Not Responsible for
Recitals, Dispositions of Senior
Notes or Application of Proceeds
Thereof . . . . . . . . . . . . . . . 65
Section 6.4. Trustee and Agents May Hold Senior
Notes; Collections; Etc . . . . . . . 66
Section 6.5. Money Held in Trust . . . . . . . . . 66
Section 6.6. Compensation and Indemnification of
Trustee and Its Prior Claim . . . . . 66
Section 6.7. Conflicting Interests . . . . . . . . 67
Section 6.8. Corporate Trustee Required;
Eligibility . . . . . . . . . . . . . 68
Section 6.9. Resignation and Removal; Appointment
of Successor Trustee. . . . . . . . . 68
Section 6.10. Acceptance of Appointment by
Successor . . . . . . . . . . . . . . 70
Section 6.11. Merger, Consolidation or Succession
to Business . . . . . . . . . . . . . 71
ARTICLE SEVEN HOLDERS' LISTS AND REPORTS BY TRUSTEE AND
ISSUER. . . . . . . . . . . . . . . . . . . . . 71
Section 7.1. Issuer to Furnish Trustee Names and
Addresses of Holders. . . . . . . . . 71
Section 7.2. Disclosure of Names and Addresses of
Holders . . . . . . . . . . . . . . . 72
Section 7.3. Reports by Trustee. . . . . . . . . . 72
Section 7.4. Reports by the Issuer . . . . . . . . 73
ARTICLE EIGHT CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR
LEASE . . . . . . . . . . . . . . . . . . . . . 74
Section 8.1. The Issuer or the Partnership May
Consolidate, Merge, etc., Only on
Certain Terms . . . . . . . . . . . . 74
Section 8.2. Successor Substituted . . . . . . . . 77
ARTICLE NINE SUPPLEMENTAL INDENTURES . . . . . . . . . . . . 78
Section 9.1. Supplemental Indentures and
Agreements without Consent of
Holders . . . . . . . . . . . . . . . 78
Section 9.2. Supplemental Indentures and
Agreements with Consent of Holders. . 79
Section 9.3. Execution of Supplemental Indentures
and Agreements. . . . . . . . . . . . 80
Section 9.4. Effect of Supplemental Indentures . . 80
Section 9.5. Conformity with Trust Indenture Act . 81
Section 9.6. Reference in Senior Notes to
Supplemental Indentures . . . . . . . 81
Section 9.7. Record Date . . . . . . . . . . . . . 81
(v)
<PAGE>
ARTICLE TEN COVENANTS . . . . . . . . . . . . . . . . . . . 82
Section 10.1. Payment of Principal, Premium and
Interest. . . . . . . . . . . . . . . 82
Section 10.2. Maintenance of Office or Agency . . . 82
Section 10.3. Money for Senior Note Payments to be
Held in Trust . . . . . . . . . . . . 82
Section 10.4. Issuer's and Partnership's
Existence . . . . . . . . . . . . . . 84
Section 10.5. Payment of Taxes and Other Claims . . 84
Section 10.6. Maintenance of Properties . . . . . . 85
Section 10.7. Limitation on Partnership
Indebtedness. . . . . . . . . . . . . 85
Section 10.8. Limitation on Liens . . . . . . . . . 86
Section 10.9. Limitation on Restricted Payments . . 86
Section 10.10. Limitation on Partnership Leases. . . 90
Section 10.11. Limitation on Preferred Stock of
Subsidiaries and Subsidiary
Distributions . . . . . . . . . . . . 90
Section 10.12. Limitation on Payment Restrictions
Affecting Subsidiaries. . . . . . . . 91
Section 10.13. Purchase of Senior Notes upon Change
of Control. . . . . . . . . . . . . . 91
Section 10.14. Limitations on Transactions with
Affiliates. . . . . . . . . . . . . . 93
Section 10.15. Restriction on Transfer of Assets . . 94
Section 10.16. Limitation on Activities and
Investments . . . . . . . . . . . . . 94
Section 10.17. Restriction on Payment of Services
Fee . . . . . . . . . . . . . . . . . 95
Section 10.18. Provision of Financial Statements . . 95
Section 10.19. Statement by Officers as to Default . 96
Section 10.20. Waiver of Certain Covenants . . . . . 97
Section 10.21. Redemption of Certain Gaming Chips. . 97
ARTICLE ELEVEN REDEMPTION OF SENIOR NOTES. . . . . . . . . . . 98
Section 11.1. Senior Notes Redeemed Pursuant to
Casino Control Act. . . . . . . . . . 98
Section 11.2. Sinking Fund. . . . . . . . . . . . . 98
Section 11.3. Senior Notes Redeemed Pursuant to a
Total Taking or Casualty. . . . . . . 99
Section 11.4. Applicability of Article. . . . . . . 99
Section 11.5. Notice to Trustee . . . . . . . . . . 99
Section 11.6. Selection by Trustee of Senior Notes
to Be Redeemed. . . . . . . . . . . . 99
Section 11.7. Notice of Redemption. . . . . . . . . 100
Section 11.8. Deposit of Redemption Price . . . . . 101
Section 11.9. Senior Notes Payable on Redemption
Date. . . . . . . . . . . . . . . . . 101
Section 11.10. Senior Notes Redeemed in Part . . . . 101
(vi)
<PAGE>
ARTICLE TWELVE SENIOR NOTE MORTGAGE DOCUMENTS. . . . . . . . . 102
Section 12.1. Senior Note Mortgage Documents. . . . 102
Section 12.2. Recording, Opinion of Counsel, Etc. . 103
Section 12.3. Release of Collateral . . . . . . . . 104
Section 12.4. Trust Indenture Act Requirements. . . 104
Section 12.5. Disposition of Certain Collateral
without Requesting Release. . . . . . 104
Section 12.6. Suits to Protect the Collateral . . . 105
Section 12.7. Determinations Relating to
Collateral. . . . . . . . . . . . . . 106
Section 12.8. Impairment of Security Interest . . . 106
Section 12.9. Release Upon Termination of the
Issuer's Obligations. . . . . . . . . 107
Section 12.10. Authorization of Receipt of Funds by
the Trustee Under the Senior Note
Mortgage Documents. . . . . . . . . . 107
ARTICLE THIRTEEN SATISFACTION AND DISCHARGE . . . . . . . . 107
Section 13.1. Satisfaction and Discharge of
Indenture . . . . . . . . . . . . . . 107
Section 13.2. Application of Trust Money. . . . . . 109
ARTICLE FOURTEEN SENIOR GUARANTEE . . . . . . . . . . . . . 109
Section 14.1. Partnership Senior Guarantee. . . . . 109
Section 14.2. Continuing Guarantee; No Right of
Set-Off; Independent Obligation . . . 109
Section 14.3. Guarantee Absolute. . . . . . . . . . 110
Section 14.4. Right to Demand Full Performance. . . 113
Section 14.5. Waivers . . . . . . . . . . . . . . . 113
Section 14.6. The Partnership Remains Obligated in
Event the Issuer Is No Longer
Obligated to Discharge Indenture
Obligations . . . . . . . . . . . . . 114
Section 14.7. Waiver of Rights. . . . . . . . . . . 114
Section 14.8. Senior Guarantee Is in Addition to
Other Security. . . . . . . . . . . . 114
Section 14.9. Release of Security Interests . . . . 115
Section 14.10. No Bar to Further Actions . . . . . . 115
Section 14.11. Failure to Exercise Rights Shall Not
Operate As a Waiver; No Suspension
of Remedies . . . . . . . . . . . . . 115
Section 14.12. Successors and Assigns. . . . . . . . 115
Section 14.13. Release of Senior Guarantee . . . . . 116
Section 14.14. Execution of Senior Guarantee . . . . 116
EXHIBIT A Form of Senior Partnership Note
EXHIBIT B Form of Senior Note Mortgage
EXHIBIT C Form of Senior Assignment Agreement
EXHIBIT D Form of Senior Guarantee Mortgage
(vii)
<PAGE>
SCHEDULE I Permitted Indebtedness
SCHEDULE II Permitted Investments
(viii)
<PAGE>
<PAGE>
Reconciliation and tie between Trust
Indenture Act of 1939
and Indenture, dated as of December 28, 1993
Trust Indenture Indenture
Act Section Section
ss 310(a)(1) . . . . . . . . . . . . 6.8
(a)(2) . . . . . . . . . . . . 6.8
(b) . . . . . . . . . . . . 6.7, 6.9
ss 312(a) . . . . . . . . . . . . 7.1
(c) . . . . . . . . . . . . 7.2
ss 314(a) . . . . . . . . . . . . 7.4
(a)(4) . . . . . . . . . . . . 10.19
(b) . . . . . . . . . . . . 12.2
(c)(1) . . . . . . . . . . . . 1.3
(c)(2) . . . . . . . . . . . . 1.3
(e) . . . . . . . . . . . . 1.3
ss 315(b) . . . . . . . . . . . . 6.1
ss 316(a)(last
sentence)
(a)(1)(A) . . . . . . . . . . . . 1.1 ("Outstanding")
(a)(1)(A) . . . . . . . . . . . . 5.2, 5.12
(a)(1)(B) . . . . . . . . . . . . 5.13
(b) . . . . . . . . . . . . 5.8
(c) . . . . . . . . . . . . 9.7
ss 317(a)(1) . . . . . . . . . . . . 5.3
(a)(2) . . . . . . . . . . . . 5.4
ss 318(a) . . . . . . . . . . . . 1.8
_____________________
Note: This reconciliation and tie shall not, for any purpose,
be deemed to be a part of the Indenture.
(ix)
<PAGE>
<PAGE>
INDENTURE, dated as of December 28, 1993, among TRUMP'S
CASTLE FUNDING, INC., a New Jersey corporation (the "Issuer"), as
issuer, FIRST BANK NATIONAL ASSOCIATION, a national banking
association ("Trustee"), as trustee, and TRUMP'S CASTLE
ASSOCIATES, a New Jersey general partnership (the "Partnership" or
"Guarantor"), as guarantor.
RECITALS OF THE ISSUER AND THE PARTNERSHIP
The Issuer has duly authorized the creation of an issue of up
to $[37],000,000 aggregate principal amount of its (a) 11 1/2%
Series A Senior Secured Notes due 2000 (the "Series A Notes") and
(b) its 11 1/2% Series B Senior Secured Notes due 2000 (the
"Series B Notes" and collectively with the Series A Notes (the
"Senior Notes") of substantially the tenor and amount hereinafter
set forth, and to provide therefor the Issuer has duly authorized
the execution and delivery of this Indenture.
The Partnership has duly authorized the issuance of a
guarantee of the Senior Notes (the "Senior Guarantee"), of
substantially the tenor hereinafter set forth, and to provide
therefor the Partnership has duly authorized the execution and
delivery of this Indenture and the Senior Guarantee.
This Indenture is subject to, and shall be governed by, the
provisions of the Trust Indenture Act of 1939, as amended, that
are required to be part of and to govern indentures qualified
under such Trust Indenture Act.
All acts and things necessary have been done to make (i) the
Senior Notes, when executed by the Issuer and authenticated and
delivered hereunder and duly issued by the Issuer, the valid
obligations of the Issuer, (ii) the Senior Guarantee, when
executed by the Partnership and delivered hereunder, the valid
obligation of the Partnership and (iii) this Indenture a valid
agreement of the Issuer and the Partnership in accordance with its
terms.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of
the Senior Notes by the Holders thereof, it is mutually covenanted
and agreed, for the equal and proportionate benefit of all Holders
of the Senior Notes, as follows:
(1)
<PAGE>
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.1. Definitions.
For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings
assigned to them in this Article, and include the plural as well
as the singular;
(b) all other terms used herein which are defined in the
Trust Indenture Act, either directly or by reference therein, have
the meanings assigned to them therein;
(c) all accounting terms not otherwise defined herein have
the meanings assigned to them in accordance with GAAP;
(d) the words "herein," "hereof" and "hereunder" and other
words of similar import refer to this Indenture as a whole and not
to any particular Article, Section or other subdivision;
(e) "or" is not exclusive; and
(f) all references to $ or dollars shall refer to the
lawful currency of the United States of America.
Certain Definitions
"Acquired Indebtedness" means Indebtedness of a Person (a)
existing at the time such Person becomes a Subsidiary or (b)
assumed in connection with the acquisition of assets from such
Person, in each case, other than Indebtedness incurred in
connection with, or in contemplation of, such Person becoming a
Subsidiary or such acquisition. Acquired Indebtedness shall be
deemed to be incurred on the date of the related acquisition of
assets from any Person or the date the acquired Person becomes a
Subsidiary.
"Adjusted Consolidated Interest Expense" means, without
duplication, for any period, the sum of (a) the interest expense
of the Partnership and its Consolidated Subsidiaries for such
period, on a Consolidated basis, including, without limitation,
(i) amortization of debt discount, (ii) the net cost under
interest rate contracts (including amortization of discounts),
(iii) the interest portion of any deferred payment obligation and
(iv) accrued interest plus (b) the interest component of the
Capital Lease Obligations paid, accrued and/or scheduled to be
paid, or accrued by the Partnership and its Consolidated
(2)
<PAGE>
Subsidiaries during such period, in each case as determined in
accordance with GAAP consistently applied.
"Adjusted Consolidated Net Income (Loss)" means, for any
period, the Consolidated net income (or loss) of the Partnership
and its Consolidated Subsidiaries for such period as determined in
accordance with GAAP consistently applied, adjusted, to the extent
included in calculating such net income (loss), by excluding (a)
all extraordinary gains or losses (less all fees and expenses
relating thereto), (b) the portion of net income (or loss) of the
Partnership and its Consolidated Subsidiaries allocable to
minority interests in unconsolidated Persons to the extent that
cash dividends or distributions have not actually been received by
the Partnership or one of its Consolidated Subsidiaries, (c) net
income (or loss) of any Person combined with the Partnership or
any of the Subsidiaries on a "pooling of interests" basis
attributable to any period prior to the date of combination, (d)
any gain or loss, net of taxes, realized upon the termination of
any employee pension benefit plan, (e) net gains or losses (less
all fees and expenses relating thereto) in respect of dispositions
of assets other than in the ordinary course of business, or (f)
the net income of any Subsidiary to the extent that the
declaration of dividends or similar distributions by that
Subsidiary of that income is not at the time permitted, directly
or indirectly, by operation of the terms of its charter or any
agreement, instrument, judgment, decree, order, statute, rule or
governmental regulation applicable to that Subsidiary or its
shareholders.
"Affiliate" means, with respect to any specified Person, (a)
any other Person directly or indirectly controlling or controlled
by or under direct or indirect common control with such specified
Person or (b) any other Person that owns, directly or indirectly,
5% or more of such Person's Capital Stock or Equity Interest or
any officer or director of any such Person or other Person or with
respect to any natural Person, any person having a relationship
with such Person by blood, marriage or adoption not more remote
than first cousin. For the purposes of this definition, "control"
when used with respect to any specified Person means the power to
direct the management and policies of such Person directly or
indirectly, whether through ownership of voting securities, by
contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Appraised Value" shall have the meaning set forth in
Section 1 of the Senior Note Mortgage.
"Average Life to Stated Maturity" means, as of the date of
determination with respect to any Indebtedness, the quotient
obtained by dividing (a) the sum of the products of (i) the number
of years from the date of determination to the date or dates of
each successive scheduled principal payment of such Indebtedness
(3)
<PAGE>
multiplied by (ii) the amount of each such principal payment by
(b) the sum of all such principal payments.
"Bankruptcy Law" means Title 11, United States Code, as
amended, or any similar United States federal or state law
relating to bankruptcy, insolvency, receivership, winding-up,
liquidation, reorganization or relief of debtors or any amendment
to, succession to or change in any such law.
"Board of Directors" means, with respect to the Issuer, the
board of directors of the Issuer or, with respect to the
Partnership, the board of partner representatives, or any duly
authorized committee of any such board.
"Board Resolution" means a copy of a resolution certified by
the Secretary or an Assistant Secretary of the Issuer or the
Partnership, as the case may be, to have been duly adopted by the
Board of Directors and to be in full force and effect on the date
of such certification, and delivered to the Trustee.
"Business Day" means each Monday, Tuesday, Wednesday,
Thursday and Friday which is not a day on which banking
institutions in The City of New York are authorized or obligated
by law or executive order to close.
"Cage Cash" means the sum of $5,000,000 retained for daily
operations of the Casino.
"Capital Lease Obligation" of any Person means any obligation
of such Person and its subsidiaries on a Consolidated basis under
any capital lease of real or personal property which, in
accordance with GAAP, has been recorded as a capitalized lease
obligation.
"Capital Stock" of any Person means any and all shares,
interests, participations or other equivalents (however
designated) of such Person's capital stock.
"Casino - Hotel" means the casino and hotel complex currently
known as the "Trump's Castle Casino Resort" in Atlantic City, New
Jersey and ancillary structures, marina and other facilities and
all furniture, fixtures and equipment at any time contained
therein, in each case owned by or leased to the Partnership and
covered by the lien of the Senior Note Mortgage.
"Casualty" means any act or occurrence of any kind or nature
which results in damage, loss or destruction to any buildings or
improvements on the Premises and/or Tangible Personal Property (as
such terms are defined in Section 1.1 of the Senior Note
Mortgage).
(4)
<PAGE>
"CCC" means the New Jersey Casino Control Commission or any
successor entity thereto.
"Certificate of Appraised Value" shall have the meaning set
forth in Section 1.1 of the Senior Note Mortgage.
"Change of Control" means an event as a result of which (a)
the Permitted Holder does not have the right or ability by voting
power, contract or otherwise to elect or designate for election a
majority of the Board of Partner Representatives of the
Partnership or to control the management of the Partnership; or
(b) the Partnership is liquidated or dissolved or adopts a plan of
liquidation or dissolution, provided, however, a Change of Control
shall not be deemed to occur as a result of one or more Public
Offerings so long as (i) the Permitted Holder continues to own
beneficially 20% or more of the voting equity securities of the
entity which conducted the Public Offering and (ii) no other
holder beneficially owns a greater percentage and voting
securities of such entity than the Permitted Holder.
"Code" means the Internal Revenue Code of 1986, as amended.
"Collateral" means, collectively, all of the property and
assets that are from time to time subject to the Lien of the
Senior Note Mortgage.
"Consolidated Fixed Charge Coverage Ratio" means for any
period the ratio of (a) the sum of Adjusted Consolidated Net
Income, Adjusted Consolidated Interest Expense and Consolidated
Income Tax Expense, plus, without duplication, all depreciation,
amortization and all other non-cash charges (excluding any such
non-cash charges constituting an extraordinary item of loss or any
non-cash charge which requires an accrual of or a reserve for cash
charges for any future period) in each case, for such period, of
the Partnership and its Consolidated Subsidiaries on a
Consolidated basis, all determined in accordance with GAAP
consistently applied to (b) Adjusted Consolidated Interest Expense
for such period.
"Consolidated Income Tax Expense" means for any period the
provision for federal, state, local and foreign income taxes of
the Partnership and its Consolidated Subsidiaries for such period
as determined in accordance with GAAP consistently applied.
"Consolidated Net Worth" of any Person means the Consolidated
stockholders' equity (excluding Redeemable Capital Stock or
Redeemable Equity Interests) of such Person and its Consolidated
subsidiaries, as determined in accordance with GAAP consistently
applied.
"Consolidation" means, with respect to any Person, the
consolidation of the accounts of such Person and each of its
(5)
<PAGE>
subsidiaries if and to the extent the accounts of such Person and
each of its subsidiaries would normally be consolidated with those
of such Person, all in accordance with GAAP consistently applied.
The term "Consolidated" shall have a similar meaning.
"Corporate Trust Office" means the office of the Trustee, or
its agent, at which at any particular time its corporate trust
business shall be administered, which office at the date of
execution of this Indenture is located at 180 East Fifth Street,
St. Paul, Minnesota 55101.
"CRDA" means the Casino Reinvestment Development Authority or
any successor entity thereto.
"Default" means any event which is, or after notice or
passage of time or both would be, an Event of Default.
"EBITDA" means, for the relevant accounting period, an amount
equal to the sum of (i) the net income (or loss) of the
Partnership for such period determined in accordance with
generally accepted accounting principles, consistently applied,
excluding any extraordinary, unusual or non-recurring gains
(including without limitation those gains arising from
dispositions of assets or from the purchase, redemption or
discharge of any indebtedness), and excluding any extraordinary,
unusual or non-recurring losses arising from (A) transactions or
events approved by not less than two of the Noteholder
Representatives (so long as such approval includes an explicit
finding that any such losses arising from such transaction or
event are to be so excluded pursuant to this clause (A)) or (B)
the purchase, redemption or discharge of any indebtedness in
respect of the Mortgage Notes or PIK Notes, plus (ii) all amounts
deducted in computing such net income (or loss) in respect of
interest (including the imputed interest portions of rentals under
Capitalized Leases), depreciation, amortization and taxes based
upon or measured by income, plus (iii) other non-cash charges
arising from market value adjustments and adjustments pertaining
to contributions of deposits in each case in respect of CRDA
Bonds.
"Equity Interest" of any Person means any shares, interests,
participations or other equivalents (however designated) of such
Person in equity.
"Equity Offering" has the meaning specified in Section 11.11
of the PIK Note Indenture.
"Event of Default" has the meaning specified in Article Five.
"Excess Available Cash" shall be calculated semi-annually on
June 30 and December 31 and means the sum of the Partnership's
cash and cash equivalents as shown on its balance sheet at such
(6)
<PAGE>
date less the sum of (1) the Partnership's Cage Cash, (2) the
Partnership's working capital reserve of $10 million less the
amount, if any, available to the Partnership under the Working
Capital Facility, (3) the aggregate amount required to meet the
cash interest payments due on all Permitted Indebtedness on the
next respective interest payment dates and any sinking fund
payment on the Senior Notes due during the succeeding six month
period, (4) distributions to be made during the succeeding six
month period in respect of taxes as contemplated by clause (c) of
Section 10.9(b)(ix) hereof, and (5) the cash amounts required to
meet the Partnership's Capital Expenditures (as defined in the
Partnership Agreement), CRDA bond payments and other fixed charges
projected during the succeeding six month period.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"F,F&E Financing Agreement" means an agreement which creates
a Lien upon any after-acquired Tangible Personal Property (as
defined in the Senior Note Mortgage) and/or other items
constituting Operating Assets (as defined in the Senior Note
Mortgage), which are financed, purchased or leased by the
Partnership.
"Fair Market Value" means, with respect to any asset or
property, the sale value that would be obtained in an arm's-length
transaction between an informed and willing seller under no
compulsion to sell and an informed and willing buyer under no
compulsion to buy and, with respect to any Senior Notes redeemed
under Section 11.1, means (a) the last sales price regular way on
the last trading day prior to the date of determination of such
value on the largest national securities exchange (or, if said
security is not listed on a national securities exchange, on the
National Market System of the National Association of Securities
Dealers, Inc. Automated Quotation System ("NASDAQ")) on which such
Senior Notes shall have traded on such trading day, or (b) if no
such sales of such Senior Notes occurred on such trading day, the
mean between the "bid" and "asked" prices on such national
securities exchange or as quoted on the National Market System of
NASDAQ, as the case may be, on such last trading day, or (c) if
the Senior Notes are not listed or quoted on any national
securities exchange or the National Market System of NASDAQ, the
average of the closing bid and asked prices on such day in the
over-the-counter market as reported by NASDAQ or, if bid and asked
prices for the Senior Notes have not been reported through NASDAQ,
the average of the bid and asked prices on such day as furnished
by any New York Stock Exchange member firm regularly making a
market in the Senior Notes, selected for such purpose by the
Issuer, or (d) if none of clauses (a) through (c) are applicable,
the fair market value of such Senior Notes as of the date of
determination as determined in such manner as shall be
satisfactory to the Issuer, which shall be entitled to rely for
(7)
<PAGE>
such purpose on the advice of any firm of investment bankers or
securities dealers having familiarity with the Senior Notes.
"Gaming Authority" means the CCC, the NJDGE or any other
governmental agency which regulates gaming in a jurisdiction in
which the Partnership conducts gaming activities.
"Generally Accepted Accounting Principles" or "GAAP" means
generally accepted accounting principles in the United States,
consistently applied, which are in effect on the date of this
Indenture.
"Guaranteed Debt" of any Person means, without duplication,
all Indebtedness of any other Person referred to in the definition
of Indebtedness contained in this section guaranteed directly or
indirectly in any manner by such Person, or in effect guaranteed
directly or indirectly by such Person through an agreement (a) to
pay or purchase such Indebtedness or to advance or supply funds
for the payment or purchase of such Indebtedness, (b) to purchase,
sell or lease (as lessee or lessor) property, or to purchase or
sell services, primarily for the purpose of enabling the debtor to
make payment of such Indebtedness or to assure the holder of such
Indebtedness against loss, (c) to supply funds to, or in any other
manner invest in, the debtor (including any agreement to pay for
property or services without requiring that such property be
received or such services be rendered), (d) to maintain working
capital or equity capital of the debtor, or otherwise to maintain
the net worth, solvency or other financial condition of the debtor
or (e) otherwise to assure a creditor against loss; provided that
the term "guarantee" shall not include endorsements for collection
or deposit, in either case in the ordinary course of business;
provided further, that the obligations of the Partnership pursuant
to the Services Agreement as in effect on the date of this
Indenture shall not be deemed to be Guaranteed Debt of the
Partnership.
"Holder" means a Person in whose name a Senior Note is
registered in the Senior Note Register.
"Indebtedness" means, with respect to any Person, without
duplication, (a) all indebtedness of such Person for borrowed
money or for the deferred purchase price of property or services,
excluding any trade payables and other accrued current liabilities
arising in the ordinary course of business, but including, without
limitation, all obligations, contingent or otherwise, of such
Person in connection with any letters of credit issued under
letter of credit facilities, acceptance facilities or other
similar facilities and in connection with any agreement to
purchase, redeem, exchange, convert or otherwise acquire for value
any Capital Stock or Equity Interest of such Person, or any
warrants, rights or options to acquire such Capital Stock or
Equity Interest, now or hereafter outstanding, (b) all obligations
(8)
<PAGE>
of such Person evidenced by bonds, notes, debentures or other
similar instruments, (c) every obligation of such Person issued or
contracted for as payment in consideration of the purchase by such
Person or an Affiliate of such Person of the Capital Stock or
Equity Interest or substantially all of the assets of another
Person or in consideration for the merger or consolidation with
respect to which such Person or an Affiliate of such Person was a
party, (d) all indebtedness created or arising under any
conditional sale or other title retention agreement with respect
to property acquired by such Person (even if the rights and
remedies of the seller or lender under such agreement in the event
of default are limited to repossession or sale of such property),
but excluding trade payables and other accrued current liabilities
arising in the ordinary course of business, (e) all obligations
under interest rate contracts of such Person, (f) all Capital
Lease Obligations of such Person, (g) all Indebtedness referred to
in clauses (a) through (f) above of other Persons and all
dividends of other Persons, the payment of which are secured by
(or for which the holder of such Indebtedness has an existing
right, contingent or otherwise, to be secured by) any Lien upon or
in property (including, without limitation, accounts and contract
rights) owned by such Person, even though such Person has not
assumed or become liable for the payment of such Indebtedness,
(h) all Guaranteed Debt of such Person, (i) all Redeemable Capital
Stock or Redeemable Equity Interests valued at the greater of its
voluntary or involuntary maximum fixed repurchase price plus
accrued and unpaid dividends, and (j) any amendment, supplement,
modification, deferral, renewal, extension or refunding of any
liability of the types referred to in clauses (a) through (i)
above. For purposes hereof, the "maximum fixed repurchase price"
of any Redeemable Capital Stock or Redeemable Equity Interest
which does not have a fixed repurchase price shall be calculated
in accordance with the terms of such Redeemable Capital Stock or
Redeemable Equity Interest as if such Redeemable Capital Stock or
Redeemable Equity Interest were purchased on any date on which
Indebtedness shall be required to be determined pursuant to this
Indenture, and if such price is based upon, or measured by, the
Fair Market Value of such Redeemable Capital Stock or Redeemable
Equity Interest, such Fair Market Value to be determined in good
faith by the board of directors of the issuer (or managing general
partner of the issuer) of such Redeemable Capital Stock or
Redeemable Equity Interest.
"Indenture" means this instrument as originally executed and
as it may from time to time be supplemented or amended by one or
more indentures supplemental hereto entered into pursuant to the
applicable provisions hereof.
"Indenture Obligations" means the obligations of the Issuer,
the Partnership and any other obligor under this Indenture or
under the Senior Notes, to pay principal of, premium, if any, and
interest when due and payable, and all other amounts due or to
(9)
<PAGE>
become due under or in connection with this Indenture, the Senior
Notes and the performance of all other obligations to the Trustee
and the Holders under this Indenture, the Senior Notes and the
Senior Note Mortgage, according to the terms thereof.
"Interest Payment Date" means the Stated Maturity of an
installment of interest on the Senior Notes.
"Investments" means, with respect to any Person, directly or
indirectly, any advance, loan or other extension of credit or
capital contribution to (by means of any transfer of cash or other
property to others or any payment for property or services for the
account or use of others), or any purchase or other acquisition by
such Person of any Capital Stock, Equity Interest, bonds, notes,
debentures or other securities or assets issued or owned by, any
other Person.
"Issuer" means Trump's Castle Funding, Inc., a corporation
incorporated under the laws of the State of New Jersey or any
other obligor on the Senior Notes (other than the Partnership),
including any successor Person to Trump's Castle Funding, Inc. in
accordance with Article Eight hereof.
"Issuer Request" or "Issuer Order" means a written request or
order signed in the name of the Issuer by any one of its Chairman
of the Board, its Vice Chairman, its President or a Vice
President, and by any one of its Treasurer, an Assistant
Treasurer, its Secretary or an Assistant Secretary, and delivered
to the Trustee.
"Legal Requirements" has the meaning set forth in Section 1.1
of the Senior Note Mortgage.
"Lien" means any mortgage, charge, pledge, lien (statutory or
otherwise), privilege, security interest, hypothecation or other
encumbrance upon or with respect to any property of any kind, real
or personal, movable or immovable, now owned or hereafter
acquired.
"Litigation Warrants" means warrants to be issued by Trump's
Castle Hotel & Casino, Inc. for additional equity securities
representing a 0.5% common equity interest in the Partnership
pursuant to the terms of a settlement agreement arising out of
certain securities litigation.
"Marina Lease" means the lease agreement made September 1,
1990 between the State of New Jersey, as Landlord, and the
Partnership, as tenant, respecting property known as the Senator
Frank S. Farley State Marina, Atlantic City, New Jersey, being
designated as a portion of Block B-4, Lot 11 on the tax map of the
City of Atlantic City, Atlantic County, New Jersey, together with
all amendments, restatements, extensions and renewals thereof.
(10)
<PAGE>
"Maturity" when used with respect to any Senior Note means
the date on which the principal of such Senior Note becomes due
and payable as therein provided or as provided in this Indenture,
whether at Stated Maturity, Change of Control Purchase Date or the
Redemption Date and whether by declaration of acceleration, Change
of Control Offer, call for redemption or otherwise.
"Midlantic Term Loan" means the secured indebtedness in a
principal amount not to exceed $38,000,000 evidenced by the
Amended Term Loan Agreement, dated as of May 29, 1992, between the
Company, the Partnership and Midlantic National Bank, together
with all amendments, restatements, extensions and renewals
thereof.
"Mortgage Debt" means any Indebtedness secured by Liens
(other than involuntary Liens) on any portion of the Collateral.
"Mortgage Notes" means the 11-3/4% Mortgage Notes due 2003
issued by the Issuer.
"Mortgage Note Indenture" means that certain indenture among
the Issuer, as issuer, the Partnership, as guarantor, and First
Bank National Association, as trustee, dated as of the date
hereof, relating to the Issuer's 11 3/4% Mortgage Notes due 2003
as it may from time to time be supplemented or amended by one or
more indentures supplemental thereto.
"NASDAQ" is defined under the definition of "Fair Market
Value."
"Net Cash Proceeds" of an issuance means the cash proceeds of
such issuance, net of attorney's fees, accountant's fees,
brokerage, consultant, underwriting and other fees and expenses
actually incurred in connection with such issuance, sale,
conversion or exchange and net of taxes paid or payable as a
result thereof.
"NJDGE" means the New Jersey Division of Gaming Enforcement
or any successor entity thereto.
"Noteholder Representatives" shall have the meaning set forth
in the Partnership Agreement.
"Officers' Certificate" means a certificate signed by a
general partner or the President or a Vice President, and by the
Treasurer, Assistant Treasurer, Secretary or an Assistant
Secretary, of the Issuer or the Partnership and delivered to the
Trustee.
"Opinion of Counsel" means a written opinion of counsel, who
may be counsel for the Issuer or the Trustee.
(11)
<PAGE>
"Outstanding" when used with respect to Senior Notes means,
as of the date of determination, all Senior Notes theretofore
authenticated and delivered under this Indenture, except:
(a) Senior Notes theretofore cancelled by the Trustee
or delivered to the Trustee for cancellation;
(b) Senior Notes, or portions thereof, for whose
payment or redemption money in the necessary amount has been
theretofore deposited with the Trustee or any Paying Agent
(other than the Issuer) in trust or set aside and segregated
in trust by the Issuer (if the Issuer shall act as its own
Paying Agent) for the Holders of such Senior Notes; provided
that if such Senior Notes are to be redeemed, notice of such
redemption has been duly given pursuant to this Indenture or
provision therefor satisfactory to the Trustee has been made;
and Senior Notes, except to the extent provided in Sections
4.2 and 4.3, with respect to which the Issuer has effected
defeasance or covenant defeasance as provided in Article
Four; and
(c) Senior Notes in exchange for or in lieu of which
other Senior Notes have been authenticated and delivered
pursuant to this Indenture, other than any such Senior Notes
in respect of which there shall have been presented to the
Trustee proof satisfactory to it that such Senior Notes are
held by a bona fide purchaser in whose hands the Senior Notes
are valid obligations of the Issuer;
provided, however, that in determining whether the Holders of
the requisite principal amount of Outstanding Senior Notes
have given any request, demand, authorization, direction,
notice, consent or waiver hereunder, Senior Notes owned by
the Issuer, the Partnership, or any other obligor upon the
Senior Notes or any Affiliate of the Issuer, the Partnership,
any guarantor or such other obligor shall be disregarded and
deemed not to be Outstanding, except that, in determining
whether the Trustee shall be protected in relying upon any
such request, demand, authorization, direction, notice,
consent or waiver, only Senior Notes which the Trustee knows
to be so owned shall be so disregarded. Senior Notes so
owned which have been pledged in good faith may be regarded
as Outstanding if the pledgee establishes to the satisfaction
of the Trustee the pledgor's right so to act with respect to
such Senior Notes and that the pledgee is not the Issuer, the
Partnership or any other obligor upon the Senior Notes or any
Affiliate of the Issuer, the Partnership or such other
obligor.
"Outstanding Amount" of any Indebtedness at any time means
the principal amount outstanding of such Indebtedness at such
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time, unless such Indebtedness was issued at a discount, in which
case the "Outstanding Amount" of such Indebtedness means the
original issue price of such Indebtedness plus the accretion to
such time of the original issue discount, determined in accordance
with Generally Accepted Accounting Principles.
"Pari Passu Indebtedness" means any Indebtedness of the
Partnership that is Pari Passu in right of payment to the Senior
Guarantee.
"Partnership" means Trump's Castle Associates, a New Jersey
general partnership, and any successor Person to Trump's Castle
Associates in accordance with Article Eight hereof.
"Partnership Agreement" means the Partnership's Amended and
Restated Partnership Agreement dated as of May 29, 1992 as in
effect on the date of this Indenture, as it may be amended and
restated by the Second Amended and Restated Partnership Agreement
of the Partnership filed as an exhibit to the Registration
Statement of which the Prospectus is a part, as amended from time
to time in accordance with the terms hereof and thereof.
"Partnership Note" means the Partnership Note dated as of the
date hereof in the principal amount of $242,141,304 made by the
Partnership in favor of the Issuer, evidencing the proceeds of the
Mortgage Notes.
"Paying Agent" means any Person authorized by the Issuer to
pay the principal, premium, if any, or interest on any Senior
Notes on behalf of the Issuer.
"Permit" means any license, franchise, authorization,
statement of compliance, certificate of operation, certificate of
occupancy and permit required for the lawful ownership, occupancy,
operation and use of all or a material portion of the Collateral
whether held by the Partnership or any other Person (which may be
temporary or permanent) (including, without limitation, those
required for the use of the Casino Hotel as a licensed casino
facility), in accordance with all applicable Legal Requirements.
"Permitted Holder" means Donald J. Trump and any corporation
or other entity that is controlled by Donald J. Trump.
"Permitted Indebtedness" means the following:
(a) Indebtedness of the Partnership and the Issuer pursuant
to the Midlantic Term Loan;
(b) Indebtedness of the Partnership and the Issuer pursuant
to this Indenture and the Senior Note Mortgage Documents;
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(c) Indebtedness of the Partnership pursuant to a Working
Capital Facility;
(d) Indebtedness of the Partnership and the Issuer pursuant
to the Mortgage Note Indenture and the Mortgage Documents (as
defined in the Mortgage Note Indenture);
(e) Indebtedness of the Partnership and the Issuer pursuant
to the PIK Note Indenture and the Pledge Agreement (as defined in
the PIK Note Indenture);
(f) Indebtedness of the Partnership outstanding on
the date of this Indenture and listed on Schedule I hereto;
(g) Indebtedness of the Partnership or any
Wholly-owned Subsidiary to any one or the other of them;
(h) Indebtedness of the Partnership or any Subsidiary
represented by F,F&E Financing Agreements; provided, however, that
the aggregate principal amount of Indebtedness permitted by this
clause (h) shall not exceed at any one time outstanding (i)
$2,000,000 or (ii) $25,000,000 following the time at which the
Partnership shall have achieved EBITDA for any period of four
consecutive fiscal quarters in an amount not less than
$45,000,000.
(i) Indebtedness in respect of Capital Lease Obligations or
secured purchase money security interests of the Partnership or
any Subsidiary, in either case not created by an F, F&E Financing
Agreement; provided, however, that the aggregate principal amount
of all such Capital Lease Obligations permitted by this clause (i)
shall not exceed at any one time outstanding (i) $10,000,000 or
(ii) $15,000,000 following the time at which the Partnership shall
have achieved EBITDA for any period of four consecutive fiscal
quarters in an amount not less than $60,000,000 and provided,
further, that the aggregate principal amount of all such
Indebtedness secured by purchase money security interests shall
not exceed at any one time outstanding $10,000,000;
(j) any renewals, extensions, substitutions, refundings,
refinancings or replacements of any Indebtedness described in
clauses (a) through (i) of this definition of "Permitted
Indebtedness," including any successive renewals, extensions,
substitutions, refundings, refinancings or replacements so long as
the aggregate principal amount of Indebtedness represented thereby
does not exceed the principal amount of such Indebtedness being
renewed, extended, substituted, refunded, refinanced or replaced
(or, if such Indebtedness provides for an amount less than the
principal amount thereof to be due and payable upon a declaration
of acceleration thereof, such lesser amount as of the date of
determination) plus accrued interest thereon, plus, in the case of
refinancings, the amount of any premium or other payment required
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to be paid under the terms of the instrument governing such
Indebtedness or the amount of any premium reasonably determined by
the Partnership as necessary to accomplish such refinancing by
means of a tender offer or privately negotiated purchase and, in
each case, actually paid, plus the amount of expenses of the
Partnership incurred in connection with such refinancing and such
renewal, extension, substitution, refinancing or replacement does
not reduce the Average Life to Stated Maturity or the final Stated
Maturity of such Indebtedness; and
(k) Indebtedness of the Issuer and the Partnership with
respect to the Issuer's 9.5% Mortgage Bonds due August 15, 1998
until the defeasance thereof has been consummated in connection
with the recapitalization of the Issuer of which the issuance of
the Senior Notes is an integral part.
"Permitted Investment" means (a) Investments in any of the
Senior Notes, Mortgage Notes or PIK Notes; (b) Temporary Cash
Investments; (c) intercompany notes to the extent permitted under
the definition of "Permitted Indebtedness"; and (d) any
Investments in existence on the date of this Indenture and listed
on Schedule II to this Indenture.
"Permitted Leases" means the following:
(i) the Marina Lease;
(ii) any Capital Lease Obligation permitted by clause (i) of
the definition of "Permitted Indebtedness"; and
(iii) Leases other than Capital Lease Obligations and the
Marina Lease; provided, however, that the aggregate fixed rental
payments paid or accrued for any period of four consecutive fiscal
quarters commencing after the date hereof under all such leases
(including payments required to be made by the Lessee in respect
of taxes and insurance, whether or not denominated as rent), shall
not exceed for such period (a) $2,000,000 or (b) $7,500,000
following the times at which the Partnership shall have achieved
EBITDA for any period of four consecutive fiscal quarters in an
amount not less than $45,000,000.
"Permitted Liens" means:
(a) any Lien existing as of the date of this Indenture under
the Midlantic Term Loan, the Senior Note Mortgage, the Senior
Guarantee Mortgage, the Mortgage Documents (including, without
limitation, "Permitted Encumbrances" and "Restricted
Encumbrances", both as defined in the Note Mortgage), and the
Pledge Agreement, "Permitted Encumbrances" hereafter arising and
permitted under the Mortgage Documents, and any Lien hereafter
arising under a Working Capital Facility;
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(b) Capital Lease Obligations and purchase money liens
included in Permitted Indebtedness;
(c) the Lien in favor of the Trustee pursuant to
Section 6.6 of this Indenture and the Lien in favor of the trustee
pursuant to Section 6.6 of the Mortgage Note Indenture, and the
Lien in favor of the trustee pursuant to Section 6.6 of the PIK
Note Indenture;
(d) any Lien arising by reason of (i) any judgment,
decree or order of any court, so long as such Lien is adequately
bonded and any appropriate legal proceedings which may have been
duly initiated for the review of such judgment, decree or order
shall not have been finally terminated or the period within which
such proceedings may be initiated shall not have expired; (ii)
security for payment of workmen's compensation or other insurance;
(iii) good faith deposits in connection with tenders, leases,
contracts (other than contracts for the payment of money); and
(iv) deposits to secure public or statutory obligations, or in
lieu of surety or appeal bonds; and
(e) any Lien arising by reason of any renewal, extension,
substitution, refunding, refinancing or replacement of any
Indebtedness permitted by clause (j) of the definition of
Permitted Indebtedness.
"Person" means any individual, corporation, limited or
general partnership, joint venture, association, joint stock
company, trust, unincorporated organization or government or any
agency or political subdivision thereof.
"PIK Note Indenture" means that certain indenture among the
Issuer, as issuer, the Partnership, as guarantor, and First Bank
National Association, as trustee, dated as of the date hereof,
relating to the Issuer's PIK Notes as it may from time to time be
supplemented or amended by one or more indentures supplemental
thereto.
"PIK Notes" means the Subordinated Pay-in-Kind Notes due 2005
issued by the Issuer in an initial aggregate principal amount of
$52,066,000 plus the aggregate principal amount of PIK Notes
issued as payment of interest thereon.
"Predecessor Senior Note" of any particular Senior Note means
every previous Senior Note evidencing all or a portion of the same
debt as that evidenced by such particular Senior Note; and, for
the purposes of this definition, any Senior Note authenticated and
delivered under Section 3.6 in exchange for a mutilated Senior
Note or in lieu of a lost, destroyed or stolen Senior Note shall
be deemed to evidence the same debt as the mutilated, lost,
destroyed or stolen Senior Note.
(16)
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"Preferred Stock" means, with respect to any Person, any and
all shares, interests, participations or other equivalents
(however designated) of such Person's preferred or preference
stock whether now outstanding, or issued after the date of this
Indenture, and including, without limitation, all classes and
series of preferred or preference stock.
"Public Offering" shall mean a registered public offering of
a direct or indirect equity interest in the Issuer.
"Qualified Capital Stock" of any Person means any and all
Capital Stock of such Person other than Redeemable Capital Stock.
"Qualified Equity Interest" of any Person means any Equity
Interests of such Person other than Redeemable Equity Interests.
"Redeemable Capital Stock" means any Capital Stock that,
either by its terms, by the terms of any security into which it is
convertible or exchangeable or otherwise, is or upon the happening
of an event (other than the disqualification of the holder thereof
by the CCC) or passage of time would be, required to be redeemed
prior to any Stated Maturity of the principal of the Senior Notes
or is redeemable at the option of the holder thereof at any time
prior to any such Stated Maturity, or is convertible into or
exchangeable for debt securities at any time prior to any such
Stated Maturity at the option of the holder thereof.
"Redeemable Equity Interest" means any Equity Interest that,
either by its terms, by the terms of any security into which it is
convertible or exchangeable or otherwise, is or upon the happening
of an event (other than the disqualification of the holder thereof
by the CCC) or passage of time would be, required to be redeemed
prior to any Stated Maturity of the principal of the Senior Notes
or is redeemable at the option of the holder thereof at any time
prior to any such Stated Maturity, or is convertible into or
exchangeable for debt securities at any time prior to any such
Stated Maturity at the option of the holder thereof.
"Redemption Date" when used with respect to any Senior Note
to be redeemed means the date fixed for such redemption by or
pursuant to this Indenture.
"Redemption Price" when used with respect to any Senior Note
to be redeemed means the price at which it is to be redeemed
pursuant to this Indenture.
"Registrable Series A Notes" means the Series A Notes upon
original issuance thereof, and at all times subsequent thereto,
until, in the case of any such Series A Note, (A) a Registration
Statement with respect to such Series A Note has been declared
effective under the Securities Act and such Series A Note has been
disposed of in accordance with such Registration Statement; (B)
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such Series A Note is distributed to the public pursuant to Rule
144 (or any successor provisions) promulgated under the Securities
Act; (C) such Series A Note has been otherwise transferred and new
certificates for them not bearing a legend restricting further
transfer shall have been delivered by the Issuer; or (D) such
Series A Note ceases to be outstanding.
"Registration Rights Agreement" means the registration rights
agreement of even date herewith between the Issuer and certain
original purchasers of the Series A Notes.
"Regular Record Date" for the interest payable on any
Interest Payment Date means May 1 or November 1 (whether or not a
Business Day) next preceding such Interest Payment Date.
"Responsible Officer" when used with respect to the Trustee
means any officer assigned to the Corporate Trust Office or any
agent of the Trustee appointed hereunder, including any vice
president, assistant vice president, assistant secretary, or any
other officer or assistant officer of the Trustee or the agent of
the Trustee appointed hereunder to whom any corporate trust matter
is referred because of his or her knowledge of and familiarity
with the particular subject.
"Restoration" shall have the meaning set forth in Section 1.1
of the Senior Note Mortgage.
"SEC" means the Securities and Exchange Commission, as from
time to time constituted, created under the Exchange Act, or if at
any time after the execution of this Indenture such SEC is not
existing and performing the duties now assigned to it under the
Trust Indenture Act, then the body performing such duties at such
time.
"Securities Act" means the Securities Act of 1933, as
amended.
"Senior Assignment Agreement" means the Senior Assignment
Agreement between the Issuer and the Trustee dated as of the date
hereof, the form of which is attached hereto as Exhibit C,
providing for the assignment of the Senior Partnership Note and
the Senior Note Mortgage to the Trustee by the Issuer and
acknowledgement thereof by the Guarantor.
"Senior Guarantee", means the guarantee by the Partnership of
the Issuer's obligations under the Senior Note Indenture pursuant
to the guarantee included herein.
"Senior Guarantee Mortgage", means the Indenture of Mortgage
and Security Agreement, dated as of the date hereof, between the
trustee under the Senior Note Indenture, as mortgagee, and the
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Partnership, as mortgagor, a copy of which is attached hereto as
Exhibit D.
"Senior Indebtedness" means the Midlantic Term Loan.
"Senior Note Indenture", means this indenture, relating to
the Issuer's Senior Notes.
"Senior Note Mortgage", means the Indenture of Mortgage and
Security Agreement, dated as of the date hereof, between the
Issuer, as mortgagee, and the Partnership, as mortgagor, a copy of
which is attached hereto as Exhibit B, securing the Senior
Partnership Note.
"Senior Note Mortgage Documents" means (i) the Senior
Partnership Note, (ii) the Senior Guarantee, (iii) the Senior Note
Mortgage, (iv) the Senior Guarantee Mortgage, (v) the Senior
Assignment, and (vi) any other security document to which the
Partnership, the Issuer or the Trustee is a party which is
executed and delivered pursuant to or in connection with the
foregoing documents, as each may be amended, unsecured, extended,
substituted, refinanced, replaced, extended or otherwise modified
from time to time in accordance with the provisions of this Senior
Note Indenture and the Senior Note Mortgage Documents.
"Senior Note Register" and "Senior Note Registrar" have the
respective meanings specified in Section 3.5.
"Senior Notes", means the Issuer's 11.5% Senior Secured Notes
due 2000.
"Senior Partnership Note" means the Note dated as of the date
hereof in the principal amount of $27,000,000 made by the
partnership in favor of the Issuer, evidencing the proceeds of the
Senior Notes, and pledged to the Trustee.
"Series A Notes" and "Series B Notes", have the meanings
specified in the first recital of this Indenture.
"Services Agreement" means that certain services agreement,
dated of even date herewith, between the Partnership and TC/GP,
Inc. relating to the provision of advertising and other consulting
services to the Partnership.
"Services Fee" means, for any period, the amount of the fee
payable by the Partnership under the Services Agreement for such
period.
"Special Record Date" for the payment of any Defaulted
Interest means a date fixed by the Trustee pursuant to
Section 3.7.
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"Stated Maturity" when used with respect to any Indebtedness
or any installment of interest thereon means the dates specified
in such Indebtedness as the fixed date on which the principal of
such Indebtedness or such installment of interest is due and
payable.
"Subordinated Indebtedness" means Indebtedness of the
Partnership subordinated in right of payment to the Senior
Guarantee.
"Subsidiary" means any Person a majority of the equity
ownership or the Voting Stock of which is at the time owned,
directly or indirectly, by the Partnership or by one or more other
Subsidiaries, or by the Partnership and one or more other
Subsidiaries.
"Taking" means the acquisition or condemnation by eminent
domain of the whole or any part of the Premises (as such term is
defined in Section 1.1 of the Senior Note Mortgage), by a
competent authority, for any public or quasi-public use or
purpose.
"Temporary Cash Investments" means (a) any evidence of
Indebtedness, maturing not more than one year after the date of
acquisition, issued by the United States of America, or an
instrumentality or agency thereof and guaranteed fully as to
principal, premium, if any, and interest by the United States of
America, (b) any certificate of deposit, maturing not more than
one year after the date of acquisition, issued by, or time deposit
of, a commercial banking institution that is a member of the
Federal Reserve System and that has combined capital and surplus
and undivided profits of not less than $300,000,000, whose debt
has a rating, at the time as of which any investment therein is
made, of "P-1" (or higher) according to Moody's Investors Service,
Inc. or any successor rating agency, or "A-1" (or higher)
according to Standard & Poor's Corporation or any successor rating
agency, (c) commercial paper, maturing not more than one year
after the date of acquisition, issued by a corporation (other than
an Affiliate or subsidiary of the Partnership) organized and
existing under the laws of the United States of America with a
rating, at the time as of which any investment therein is made, of
"P-1" (or higher) according to Moody's Investors Service, Inc. or
any successor rating agency, or "A-1" (or higher) according to
Standard & Poor's Corporation or any successor rating agency, and
(d) any money market deposit accounts issued or offered by a
domestic commercial bank having capital and surplus in excess of
$300,000,000.
"Total Taking or Casualty" means a Taking or Casualty with
respect to which, pursuant to the provisions of the Senior Note
Mortgage, any proceeds resulting from such Taking or Casualty are
(20)
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to be used to pay amounts due under the Senior Notes and the
Senior Note Mortgage and not for purposes of Restoration.
"Trust Indenture Act" means the Trust Indenture Act of 1939,
as amended.
"Trustee" means the Person named as the "Trustee" in the
first paragraph of this instrument, until a successor trustee
shall have become such pursuant to the applicable provisions of
this Indenture, and thereafter "Trustee" shall mean such successor
trustee.
"Voting Stock" means stock of the class or classes pursuant
to which the holders thereof have the general voting power under
ordinary circumstances to elect at least a majority of the board
of directors, managers or trustees of a corporation (irrespective
of whether or not at the time stock of any other class or classes
shall have or might have voting power by reason of the happening
of any contingency).
"Wholly-owned Subsidiary" means a Subsidiary all the
Capital Stock of which is owned by the Partnership or by one or
more Wholly-owned Subsidiaries or by the Partnership and one or
more Wholly-owned Subsidiaries; provided, however, that the Issuer
shall not be considered a Wholly-owned Subsidiary of the
Guarantor.
"Working Capital Facility" means one or more lending
agreements between the Partnership and responsible financing
sources, pursuant to which the Partnership may incur Indebtedness
to meet its working capital requirements in an aggregate principal
amount at any one time outstanding not to exceed $10,000,000.
Section 1.2. Other Definitions.
Defined in
Term Section
"Act" 1.5(a)
"Change of Control Offer"" 10.13
"Change of Control Purchase Date" 10.13
"Change of Control Purchase Price" 10.13
"covenant defeasance" 4.3
"Defaulted Interest" 3.7
"defeasance" 4.2
"Defeased Senior Notes" 4.1
"incorporated provision" 1.8
"Restricted Payment" 10.9
"Sinking Fund Payment Date" 11.2
"Surviving Entity" 8.1
"U.S. Government Obligations" 4.4
(21)
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Section 1.3. Compliance Certificates and Opinions.
Upon any application or request by the Issuer or the
Partnership to the Trustee to take any action under any provision
of this Indenture, the Issuer, the Partnership and any other
obligor on the Senior Notes shall furnish to the Trustee an
Officers' Certificate stating that all conditions precedent, if
any, provided for in this Indenture (including any covenant
compliance with which constitutes a condition precedent) relating
to the proposed action have been complied with, and an Opinion of
Counsel to the effect that in the opinion of such counsel all such
conditions precedent, if any, have been complied with, except
that, in the case of any such application or request as to which
the furnishing of any certificates and/or opinions is specifically
required by any provision of this Indenture relating to such
particular application or request, no additional certificate or
opinion need be furnished.
Every Officers' Certificate or Opinion of Counsel with
respect to compliance with a condition or covenant provided for in
this Indenture shall include:
(a) a statement to the effect that each individual or firm
signing such certificate or opinion has read such covenant or
condition and the definitions herein relating thereto;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(c) a statement to the effect that, in the opinion of each
such individual or firm, he or it has made such examination or
investigation as is necessary to enable him or it to express an
informed opinion as to whether or not such covenant or condition
has been complied with; and
(d) a statement as to whether, in the opinion of each such
individual or such firm, such condition or covenant has been
complied with.
Section 1.4. Form of Documents Delivered to Trustee.
In any case where several matters are required to be
certified by, or covered by an opinion of, any specified Person,
it is not necessary that all such matters be certified by, or
covered by the opinion of, only one such Person, or that they be
so certified or covered by only one document, but one such Person
may certify or give an opinion with respect to some matters and
one or more other such Persons as to other matters, and any such
Person may certify or give an opinion as to such matters in one or
several documents.
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Any certificate or opinion of an officer of the Issuer, the
Partnership or any other obligor of the Senior Notes may be based,
insofar as it relates to legal matters, upon a certificate or
opinion of, or representations by, counsel, unless such officer
knows, or in the exercise of reasonable care should know, that the
certificate or opinion or representations with respect to the
matters upon which his certificate or opinion is based are
erroneous. Any certificate or opinion of such an officer or of
counsel may be based, insofar as it relates to factual matters,
upon a certificate or opinion of, or representations by, an
officer or officers of the Issuer, the Partnership or other
obligor of the Senior Notes with respect to such factual matters
and which contains a statement to the effect that the information
with respect to such factual matters is in the possession of the
Issuer, the Partnership, or other obligor of the Senior Notes,
unless such officer or counsel knows, or in the exercise of
reasonable care should know, that the certificate or opinion or
representations with respect to such matters are erroneous.
Opinions of Counsel required to be delivered to the Trustee may
have qualifications customary for opinions of the type required
and counsel delivering such opinions of Counsel may rely on
certificates of the Issuer, the Partnership or government or other
officials customary for opinions of the type required, including
certificates certifying as to matters of fact, including
assertions as to compliance with various financial covenants.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates,
statements, opinions or other instruments under this Indenture,
they may, but need not, be consolidated and form one instrument.
Section 1.5. Acts of Holders.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be
given or taken by Holders may be embodied in and evidenced by one
or more instruments of substantially similar tenor signed by such
Holders in person or by an agent duly appointed in writing; and,
except as herein otherwise expressly provided, such action shall
become effective when such instrument or instruments are delivered
to the Trustee and, where it is herein expressly required, to the
Issuer. Such instrument or instruments (and the action embodied
therein and evidenced thereby) are herein sometimes referred to as
the "Act" of the Holders signing such instrument or instruments.
Proof of execution of any such instrument or of a writing
appointing any such agent shall be sufficient for any purpose of
this Indenture and conclusive in favor of the Trustee and the
Issuer, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved in any reasonable manner
which the Trustee deems sufficient.
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(c) The ownership of the Senior Notes shall be proved by the
Senior Note Register.
(d) Any request, demand, authorization, direction, notice,
consent, waiver or other action by the Holder of any Senior Note
shall bind every future Holder of the Senior Notes or the Holder
of every Senior Note issued upon the transfer thereof or in
exchange therefor or in lieu thereof, in respect of anything done,
suffered or omitted to be done by the Trustee, any Paying Agent or
the Issuer in reliance thereon, whether or not notation of such
action is made upon such Senior Note.
Section 1.6. Notices, etc., to Trustee, the Issuer, the
Partnership, the CCC and the NJDGE.
Any request, demand, authorization, direction, notice,
consent, waiver or Act of the Holders or other document provided
or permitted by this Indenture to be made upon, given or furnished
to, or filed with:
(a) the Trustee by any Holder or by the Issuer or the
Partnership shall be sufficient for every purpose hereunder
(unless otherwise herein expressly provided) if made, given,
furnished or filed, in writing, to or with the Trustee at 180 East
Fifth Street, St. Paul, Minnesota 55101, Attention: Corporate
Trust Department, or at any other address previously furnished in
writing to the Holders, the Issuer or the Partnership by the
Trustee;
(b) the Issuer or the Partnership shall be sufficient for
every purpose (except as provided in Section 5.1(c) hereunder) if
in writing and mailed, first-class postage prepaid or delivered by
recognized overnight courier, to the Issuer or the Partnership
addressed to it at Brigantine Boulevard and Huron Avenue, Atlantic
City, New Jersey 08401, Attention: Chief Financial Officer, or at
any other address previously furnished in writing to the Trustee
by the Issuer or the Partnership, as the case may be;
(c) the CCC shall be sufficient for every purpose hereunder
(unless otherwise herein expressly provided) if made, given,
furnished or filed, in writing, to or with the CCC at Tennessee
Avenue and The Boardwalk, Arcade Building, Atlantic City, New
Jersey 08401; or
(d) the NJDGE shall be sufficient for every purpose
hereunder (unless otherwise herein expressly provided) if made,
given, furnished or filed, in writing to or with the NJDGE at
Hughes Justice Complex, CN-047, Trenton, New Jersey 08625.
(24)
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Section 1.7. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any
event, such notice shall be sufficiently given (unless otherwise
herein expressly provided) if in writing and mailed, first-class
postage prepaid, to each Holder affected by such event, at his
address as it appears in the Senior Note Register, not later than
the latest date, and not earlier than the earliest date,
prescribed for the giving of such notice. In any case where
notice to Holders is given by mail, neither the failure to mail
such notice, nor any defect in any notice so mailed, to any
particular Holder shall affect the sufficiency of such notice with
respect to other Holders. Any notice when mailed to a Holder in
the aforesaid manner shall be conclusively deemed to have been
received by such Holder whether or not actually received by such
Holder. Where this Indenture provides for notice in any manner,
such notice may be waived in writing by the Person entitled to
receive such notice, either before or after the event, and such
waiver shall be the equivalent of such notice. Waivers of notice
by Holders shall be filed with the Trustee, but such filing shall
not be a condition precedent to the validity of any action taken
in reliance upon such waiver.
In case by reason of the suspension of regular mail service
or by reason of any other cause, it shall be impracticable to mail
notice of any event as required by any provision of this
Indenture, then any method of giving such notice as shall be
reasonably satisfactory to the Trustee shall be deemed to be a
sufficient giving of such notice.
Section 1.8. Conflict with Trust Indenture Act.
If and to the extent that any provision of this Indenture
limits, qualifies or conflicts with the duties imposed by
Sections 3.10 to 3.18, inclusive, of the Trust Indenture Act, or
conflicts with any provision (an "incorporated provision")
required by or deemed to be included in this Indenture by
operation of such Sections of the Trust Indenture Act, such
imposed duties or incorporated provision shall control. If any
provision of this Indenture modifies or excludes any provision of
the Trust Indenture Act that may be so modified or excluded, the
latter provision shall be deemed to apply to this Indenture as so
modified or excluded, as the case may be.
Section 1.9. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of
Contents are for convenience only and shall not affect the
construction hereof.
(25)
<PAGE>
Section 1.10. Successors and Assigns.
All covenants and agreements in this Indenture by the Issuer
and the Partnership shall bind their successors and assigns,
whether so expressed or not.
Section 1.11. Separability Clause.
In case any provision in this Indenture or in the Senior
Notes shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not
in any way be affected or impaired thereby.
Section 1.12. Benefits of Indenture.
Nothing in this Indenture or in the Senior Notes, express or
implied, shall give to any Person (other than the parties hereto
and their successors hereunder, any Paying Agent and the Holders)
any benefit or any legal or equitable right, remedy or claim under
this Indenture.
Section 1.13. GOVERNING LAW.
THIS INDENTURE, THE SENIOR NOTES AND THE SENIOR GUARANTEE
SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS
OF THE STATE OF NEW YORK (WITHOUT GIVING EFFECT TO THE CONFLICT OF
LAWS PRINCIPLES THEREOF).
Section 1.14. Casino Control Act.
Each of the provisions of this Indenture is subject to and
shall be enforced in compliance with the provisions of the New
Jersey Casino Control Act, unless such provisions are in conflict
with the Trust Indenture Act in which case the Trust Indenture Act
shall control.
Section 1.15. Legal Holidays.
In any case where any Interest Payment Date, Redemption
Date or Stated Maturity of any Senior Note shall not be a Business
Day, then (notwithstanding any other provision of this Indenture
or of the Senior Notes) payment of interest or principal or,
premium, if any, need not be made on such date, but may be made on
the next succeeding Business Day with the same force and effect as
if made on the Interest Payment Date or Redemption Date, or at the
Stated Maturity and no interest shall accrue with respect to such
payment for the period from and after such Interest Payment Date,
Redemption Date or Stated Maturity, as the case may be, to the
next succeeding Business Day.
Section 1.16. Schedules.
(26)
<PAGE>
All schedules attached hereto are by this reference made a
part hereof with the same effect as if herein set forth in full.
Section 1.17. Counterparts.
This Indenture may be executed in any number of counterparts,
each of which shall be an original; but such counterparts shall
together constitute but one and the same instrument.
ARTICLE TWO
FORM OF SENIOR NOTES
Section 2.1. Forms Generally.
The Senior Notes and the Trustee's certificate of
authentication shall be in substantially the forms set forth in
this Article, with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by
this Indenture and may have such letters, numbers or other marks
of identification and such legends or endorsements placed thereon
as may be required to comply with the rules of any securities
exchange, any organizational document or governing instrument or
any applicable law, including the federal securities laws, or as
may, consistently herewith, be determined by the officers
executing such Senior Notes, as evidenced by their execution of
the Senior Notes. Any portion of the text of any Senior Note may
be set forth on the reverse thereof, with an appropriate reference
thereto on the face of the Senior Note.
The definitive Senior Notes shall be printed, lithographed or
engraved or produced by any combination of these methods or may be
produced in any other manner permitted by the rules of any
securities exchange on which the Senior Notes may be listed, all
as determined by the officers executing such Senior Notes, as
evidenced by their execution of such Senior Notes.
Section 2.2. Form of Face of the Senior Notes.
The form of the face of the Senior Notes shall be
substantially as follows:
TRUMP'S CASTLE FUNDING, INC.
[If Series A Notes, then insert --
THIS SECURITY (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A
TRANSACTION EXEMPT FROM REGISTRATION UNDER THE SECURITIES ACT OF
1933, AS AMENDED, AND MAY NOT BE SOLD OR OTHERWISE TRANSFERRED IN
THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION
(27)
<PAGE>
THEREFROM AND IN ANY EVENT MAY BE SOLD OR OTHERWISE TRANSFERRED
ONLY IN ACCORDANCE WITH THE INDENTURE, COPIES OF WHICH ARE
AVAILABLE FOR INSPECTION AT THE CORPORATE TRUST OFFICE OF THE
TRUSTEE. THE EXEMPTION PROVIDED BY RULE 144A UNDER THE SECURITIES
ACT MAY BE AVAILABLE TO PERMIT SALE OR TRANSFER OF THIS SECURITY
TO QUALIFIED INSTITUTIONAL BUYERS (WITHIN THE MEANING OF
RULE 144A) WITHOUT REGISTRATION.
EACH HOLDER OF THIS SECURITY REPRESENTS TO THE ISSUER THAT
(A) SUCH HOLDER WILL NOT SELL OR OTHERWISE TRANSFER THIS SECURITY
(WITHOUT CONSENT OF THE ISSUER) PRIOR TO THREE YEARS FROM THE
LATER OF 28, 1993 OR THE DATE ON WHICH THIS SECURITY WAS LAST HELD
BY AN AFFILIATE OF THE ISSUER OTHER THAN (I) TO A QUALIFIED
INSTITUTIONAL BUYER IN A TRANSACTION COMPLYING WITH RULE 144A,
(II) TO A NON-U.S. PERSON IN A TRANSACTION COMPLYING WITH
REGULATION S UNDER THE SECURITIES ACT, (III) FOLLOWING TWO YEARS
FROM SUCH TIME, IN A TRANSACTION COMPLYING WITH RULE 144 UNDER THE
SECURITIES ACT OR (IV) PURSUANT TO ANOTHER AVAILABLE EXEMPTION
FROM REGISTRATION UNDER THE SECURITIES ACT (IT BEING UNDERSTOOD
THAT AS A CONDITION TO THE REGISTRATION OF TRANSFER OF ANY
SECURITIES, THE ISSUER OR THE TRUSTEE MAY IN CIRCUMSTANCES EITHER
OR THEM BELIEVES APPROPRIATE, REQUIRE EVIDENCE AS TO COMPLIANCE
WITH ANY SUCH EXEMPTION) AND THAT (B) THE HOLDER WILL, AND EACH
SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER OF THIS
SECURITY FROM IT OF THE RESALE RESTRICTIONS REFERRED TO IN (A)
ABOVE.]
[If Series A Notes, then insert -- 11 1/2% Series A Senior
Secured Note due 2000]
[If Series B Notes, then insert -- 11 1/2% Senior Secured
Note due 2000]
No. $
TRUMP'S CASTLE FUNDING, INC., a New Jersey corporation
(herein called the "Issuer," which term includes any successor
Person under the Indenture hereinafter referred to), for value
received, hereby promises to pay to or
registered assigns, the principal sum of
United States dollars on November 15, 2000 at the office or agency
of the Issuer referred to below, and to pay interest thereon from
the 15th day of May or November, as the case may be, next
preceding the date hereof (or from the date hereof if such date be
either of said dates) to which interest hereon has been paid or
duly provided for, or from December __, 1993 if the date hereof is
prior to May 15, 1994, at the rate of 11 1/2% per annum,
semiannually on May 15 and November 15 in each year, commencing
May 15, 1994 in United States dollars, until the principal hereof
is paid or duly provided for.
(28)
<PAGE>
Notwithstanding the foregoing, if prior to November 15, 1998
the Issuer delivers to the Trustee (i) an Officers' Certificate
stating that the Issuer or the Partnership has defeased or
redeemed all the then Outstanding PIK Notes with the proceeds of
one or more Equity Offerings together with internally generated
funds and not through the incurrence of any additional
Indebtedness, and (ii) a certificate from the trustee under the
PIK Note Indenture confirming that all the then Outstanding PIK
Notes have been defeased or redeemed, then on and after the first
day of the calendar month next commencing after the date on which
such delivery is made the aforesaid applicable interest rate on
the Senior Notes shall be reduced by 0.25% per annum until the
Senior Notes have been paid in full.
So long as this Senior Note constitutes a Registrable Series
A Note (as defined in the Indenture), the Holder hereof is
entitled to certain liquidated damages provided for in Section 4
of the Registration Rights Agreement in the event, as more fully
described therein, that, and so long as, the Issuer fails to
timely implement its commitment to register the Senior Notes under
the Securities Act (as defined in the Indenture).
The interest so payable, and punctually paid or duly provided
for, on any Interest Payment Date will, as provided in such
Indenture, be paid to the Person in whose name this Senior Note
(or one or more Predecessor Senior Notes) is registered at the
close of business on the Regular Record Date for such interest,
which shall be May 1 or November 1 (whether or not a Business
Day), as the case may be, next preceding such Interest Payment
Date. Any such interest not so paid, or duly provided for, and
interest on such defaulted interest at the interest rate borne by
the Senior Notes, to the extent lawful, shall forthwith cease to
be payable to the Holder on such Regular Record Date, and may be
paid to the Person in whose name this Senior Note (or one or more
Predecessor Senior Notes) is registered at the close of business
on a Special Record Date for the payment of such defaulted
interest to be fixed by the Trustee, notice whereof shall be given
to Holders of Senior Notes not less than ten days prior to such
Special Record Date, or may be paid at any time in any other
lawful manner not inconsistent with the requirements of any
securities exchange on which the Senior Notes may be listed, and
upon such notice as may be required by such exchange, all as more
fully provided in said Indenture.
Payment of the principal of, premium, if any, and interest on
this Senior Note will be made at the office or agency of the
Issuer maintained for that purpose in The City of New York, or at
such other office or agency of the Issuer as may be maintained for
such purpose, in such coin or currency of the United States of
America as at the time of payment is legal tender for payment of
public and private debts; provided, however, that payment of
(29)
<PAGE>
interest may be made at the option of the Issuer by check mailed
to the address of the Person entitled thereto as such address
shall appear on the Senior Note Register. Interest shall be
computed on the basis of a 360-day year of twelve 30-day months.
This Senior Note is one of the Senior Notes issued and to be
issued from time to time under and in accordance with, the
Indenture, all equally secured by an assignment to the Trustee by
the Issuer of a promissory note made by Trump's Castle Associates,
and of an Indenture of Mortgage and Security Agreement, dated as
of even date with the Indenture referred to herein, (hereinafter
as amended and supplemented the "Senior Note Mortgage"), to which
Senior Note Mortgage reference is made for a description of the
property mortgaged and pledged, the return and extent of the
security, and the other provisions thereof.
Reference is hereby made to the further provisions of this
Senior Note set forth on the reverse hereof, which further
provisions shall for all purposes have the same effect as if set
forth at this place.
Unless the certificate of authentication hereon has been duly
executed by the Trustee or by the authenticating agent appointed
as provided in the Indenture by manual signature, this Senior Note
shall not be entitled to any benefit under the Indenture, or be
valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this
instrument to be duly executed by the manual or facsimile
signature of its authorized officers and its corporate seal to be
affixed or reproduced hereon.
Dated: TRUMP'S CASTLE FUNDING, INC.
By
Name:
Attest: Title:
(SEAL]
Section 2.3. Form of Reverse of the Senior Notes.
The form of the reverse of the Senior Notes shall be
substantially as follows:
This Senior Note is one of a duly authorized issue of Senior
Notes of the Issuer designated as its [If Series A Notes, then
insert - 11 1/2% Series A Senior Secured Notes due 2000 (the
"Series A Notes")] [If Series B Notes, then insert - 11 1/2%
(30)
<PAGE>
Senior Secured Notes due 2000 (the "Series B Notes")] issued under
an Indenture, dated as of December 28, 1993 (herein called the
"Indenture") between the Issuer, First Bank National Association,
a national banking association, as trustee (herein called the
"Trustee," which term includes any successor trustee under the
Indenture) and Trump's Castle Associates, a New Jersey general
partnership (the "Partnership"), as guarantor [If Series A Notes,
then insert - , together with the 11 1/2% Senior Secured Notes due
2000 of the Issuer (the "Series B Notes", and collectively with
the Series A Notes, the "Senior Notes")] ][If Series B Notes, then
insert - , together with the 11 1/2% Series A Senior Secured Notes
due 2000 of the Issuer (the "Series A Notes," and collectively
with the Series B Notes, the "Senior Notes")]. The Senior Notes
are limited in aggregate principal amount of up to $27,000,000.
Reference is hereby made to the Indenture and all indentures
supplemental thereto for a statement of the respective rights,
limitations of rights, duties, obligations and immunities
thereunder of the Issuer, the Trustee, the Partnership, other
obligors thereunder and the Holders of the Senior Notes, and of
the terms upon which the Senior Notes are, and are to be,
authenticated and delivered.
If the Issuer or the Partnership is served with notice of the
disqualification of any Holder under N.J.S.A. ss 5:12-105(d) by the
CCC, such Holder will be prohibited under N.J.S.A. ss 5:12-105(e)
from (a) receiving interest on the Senior Notes held by such
Holder, (b) exercising directly or through any trustee or nominee,
any right conferred on such Senior Notes and (c) receiving any
remuneration in any form from any company licensed by the CCC
(including the Issuer, the Partnership and the Trustee) for
services rendered or otherwise.
The Indenture contains provisions for defeasance at any time
of (a) the entire indebtedness on this Senior Note and (b) certain
restrictive covenants and related Defaults and Events of Default,
in each case upon compliance with certain conditions set forth
therein.
A sinking fund for the Senior Notes has been established
pursuant to the Indenture, to the provisions of which this Senior
Note is subject and to the benefit of which it is entitled as more
fully provided in said Indenture. Pursuant to the sinking fund
provision, the Issuer will on June 1, 1998 and June 1, 1999 redeem
at a redemption price equal to the principal amount thereof plus
accrued but unpaid interest, $4,050,000 in principal amount of the
Senior Notes. The sinking fund obligation will be reduced, at the
option of the Issuer or the Partnership, by an amount equal to the
aggregate principal amount of Senior Notes acquired by the
Partnership or the Issuer and surrendered to the Trustee for
cancellation and by the aggregate principal amount of Senior Notes
redeemed or called for redemption otherwise than through the
(31)
<PAGE>
operation of the sinking fund that have not previously been so
credited for such purpose by the Trustee.
In the event of a Total Taking or Casualty, the Issuer or the
Partnership shall, within 60 days after receipt of any
condemnation or insurance proceeds, but in all events within one
year after the occurrence of such Total Taking or Casualty, redeem
the Senior Notes at 100% of the principal amount thereof, in each
case, together with accrued and unpaid interest through the
Redemption Date, all as provided in the Indenture.
Notwithstanding the foregoing, each Holder by accepting a
Senior Note agrees that if the CCC does not waive the
qualification requirement as to the Holder (whether the record
owner or beneficial owner) of this Senior Note and requires that
the Holder be qualified under the New Jersey Casino Control Act,
then, in such event, the Holder must qualify under such Act. If
the Holder does not so qualify, the Holder must dispose of its
interest in this Senior Note, within 30 days (or within such
earlier date as the CCC may require) after the Issuer's receipt of
notice of such finding, or the Issuer may redeem this Senior Note
at the lower of the Outstanding Amount and the Fair Market Value
of this Senior Note, without premium, all as provided in the
Indenture.
In the case of any redemption of Senior Notes, interest
installments whose Stated Maturity is on or prior to the
Redemption Date will be payable to the Holders of such Senior
Notes (or one or more Predecessor Senior Notes), of record at the
close of business on the relevant Record Date referred to on the
face hereof. Senior Notes (or portions thereof) for whose
redemption and payment provision is made in accordance with the
Indenture shall cease to bear interest from and after the date
fixed for redemption.
In the event of redemption of this Senior Note in part only,
a new Senior Note or Senior Notes for the unredeemed portion
hereof shall be issued in the name of the Holder hereof upon the
cancellation hereof.
If an Event of Default shall occur and be continuing, there
may be declared due and payable in the manner and with the effect
provided in the Indenture the principal of this Senior Note, plus
all accrued and unpaid interest to and including the date this
Senior Note is paid.
If a Change of Control occurs at any time, each Holder shall
have the right to require that the Issuer repurchase such Holder's
Senior Notes in whole or in part in integral multiples of $1,000
at a purchase price in cash in an amount equal to 101% of the
principal amount thereof plus accrued and unpaid interest
(32)
<PAGE>
(including any Defaulted Interest), if any, to the date of
purchase.
The Indenture permits, with certain exceptions as therein
provided, amendments and modifications of the rights and
obligations of the Issuer and the Partnership and the rights of
the Holders under the Indenture and the Senior Note Mortgage
Documents at any time by the Issuer, the Partnership, and the
Trustee with the consent of the Holders of not less than a
majority in aggregate principal amount of the Senior Notes at the
time Outstanding. The Indenture also contains provisions
permitting the Holders of specified percentages in aggregate
principal amount of the Senior Notes at the time Outstanding, on
behalf of the Holders of all the Senior Notes, to waive compliance
by the Issuer or the Partnership with certain provisions of the
Indenture and certain past Defaults under the Indenture and their
consequences. Any such consent or waiver by or on behalf of the
Holder of this Senior Note shall be conclusive and binding upon
such Holder and upon all future Holders of this Senior Note and of
any Senior Note issued upon the registration of transfer hereof or
in exchange hereof or in lieu hereof whether or not notation of
such consent or waiver is made upon this Senior Note.
No reference herein to the Indenture or to the Senior Note
Mortgage Documents and no provision of this Senior Note or of the
Indenture or of the Senior Note Mortgage Documents shall alter or
impair the obligation of the Issuer, the Partnership or any other
obligor under the Senior Notes (in the event the Partnership or
any such obligor is obligated to make payments in respect of the
Senior Notes), which is absolute and unconditional, to pay the
principal of, premium, if any, and interest on this Senior Note at
the times, place, and rate, and in the coin or currency, herein
prescribed.
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this Senior Note is
registrable on the Senior Note Register of the Issuer, upon
surrender of this Senior Note for registration of transfer at the
office or agency of the Issuer maintained for such purpose in The
City of New York or at such other office or agency of the Issuer
as may be maintained for such purpose, duly endorsed by, or
accompanied by a written instrument of transfer in form
satisfactory to the Issuer and the Senior Note Registrar duly
executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Senior Notes, of authorized
denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees.
The Senior Notes are issuable only in registered form without
coupons in denominations of $1,000 and any integral multiple
thereof. As provided in the Indenture and subject to certain
limitations therein set forth, such Senior Notes are exchangeable
(33)
<PAGE>
for a like aggregate principal amount of Senior Notes of a
different authorized denomination, as requested by the Holder
surrendering the same.
No service charge shall be made for any registration of
transfer or exchange or redemption of Senior Notes, but the Issuer
may require payment of a sum sufficient to cover any tax or other
governmental charge payable in connection therewith.
Prior to and at the time of due presentment of this Senior
Note for registration of transfer, the Issuer, the Trustee and any
agent of the Issuer or the Trustee may treat the Person in whose
name this Senior Note is registered as the owner hereof for all
purposes, whether or not this Senior Note is overdue, and neither
the Issuer, the Trustee nor any agent shall be affected by notice
to the contrary.
Notwithstanding anything herein (including the Senior
Guarantee) or in any other agreement, document, certificate,
instrument, statement or omission referred to below to the
contrary, the Partnership and the Issuer are liable hereunder only
to the extent of the assets of the Partnership and the Issuer and
no other person or entity, including, but not limited to, any
partner, officer, committee or committee member of the Partnership
or any partner therein or of any Affiliate of the Partnership, or
any incorporator, officer, director or shareholder of the Issuer,
or any Affiliate or controlling Person or entity of any of the
foregoing, or any agent, employee or lender of any of the
foregoing, or any successor, personal representative, heir or
assign of any of the foregoing, in each case past, present, or as
they may exist in the future, shall be liable in any respect
(including without limitation the breach of any representation,
warranty, covenant, agreement, condition or indemnification or
contribution undertaking contained herein or therein) under, in
connection with, arising out of, or relating to this Senior Note,
the Indenture, the Senior Note Mortgage Documents or any other
agreement, document, certificate, instrument or statement (oral or
written) related to, executed or to be executed, delivered or to
be delivered, or made or to be made, or any omission made or to be
made, in connection with any of the foregoing or any of the
transactions contemplated in any such agreement, document,
certificate, instrument or statement.
Upon any consolidation or merger, or any sale, assignment,
conveyance, transfer or disposition of all or substantially all of
the properties and assets of the Issuer or the Partnership in
accordance with the Indenture, subject to the terms and conditions
of the Indenture, the successor Person to such transaction shall
become the obligor or guarantor on this Senior Note and the Senior
Note Mortgage Documents and the Issuer or Partnership, as the case
may be, shall be discharged from all obligations and covenants
(34)
<PAGE>
under this Senior Note, the Senior Note Mortgage Documents and the
Indenture.
All terms used in this Senior Note which are defined in the
Indenture and not otherwise defined herein shall have the meanings
assigned to them in the Indenture.
Section 2.4. Form of Trustee's Certificate of
Authentication.
The form of certificate of authentication shall be
substantially as follows:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
This is one of the Senior Notes referred to in the
within-mentioned Indenture.
FIRST BANK NATIONAL ASSOCIATION,
As Trustee
Dated:__________________ By
Authorized Signatory
Section 2.5. Form of Senior Guarantee.
The form of Senior Guarantee shall be set forth on the Senior
Notes substantially as follows:
SENIOR GUARANTEE BY
TRUMP'S CASTLE ASSOCIATES
For value received, Trump's Castle Associates, a New Jersey
general partnership, hereby unconditionally guarantees to the
Holder of this Senior Note the payment of principal of, premium,
if any, and interest on this Senior Note in the amounts and at the
time when due and interest on the overdue principal and interest,
if any, of this Senior Note, if lawful, and the payment or
performance of all other obligations of the Issuer under the
Indenture or the Senior Notes, to the Holder of this Senior Note
and the Trustee, all in accordance with and subject to the terms
and limitations of this Senior Note and Article Fourteen of the
Indenture. This Senior Guarantee is secured by a certain
Indenture of Mortgage and Security Agreement, dated of even date
with the Indenture referred to in this Senior Note, between
Trump's Castle Associates, as mortgagor, and First Bank National
Association, Trustee, as mortgagee, to which reference is hereby
made for a full statement of its terms and conditions. This
(35)
<PAGE>
Senior Guarantee is without recourse to the partners of the
Partnership and will not become effective until the Trustee duly
executes the certificate of authentication on this Senior Note.
Dated:__________________________ TRUMP'S CASTLE ASSOCIATES
Attest:_________________________ By_________________________
Authorized Signature General Partner
(SEAL)
ARTICLE THREE
THE SENIOR NOTES
Section 3.1. Title and Terms.
The aggregate principal amount of Senior Notes which may be
authenticated and delivered under this Indenture is limited to
$[30-40],000,000, except for Senior Notes authenticated and
delivered upon registration of transfer of, or in exchange for, or
in lieu of, other Senior Notes pursuant to Section 3.3, 3.4, 3.5,
3.6, 9.6 or 10.13. The Senior Notes are being issued in two
series, the Series A Notes and the Series B Notes.
The Series A Notes are initially being issued pursuant to an
exemption from registration under the Securities Act. After the
initial issuance date of the Series A Notes, Series B Notes will
be issued in exchange for an equal principal amount of outstanding
Series A Notes (i) pursuant to the Registered Exchange Offer (as
defined in the Registration Rights Agreement), (ii) if a
registration statement covering the resale of Series B Notes has
been declared effective, in which case the Series A Notes will be
exchanged for Series B Notes immediately prior to the disposition
of Series B Notes pursuant to the registration statement, (iii) at
the request of the Holder of the Series A Notes, immediately prior
to the disposition of such Senior Notes pursuant to Rule 144, if
the Holder of the Series A Notes delivers to the Trustee an
Opinion of Counsel stating that as a result of such disposition
the Senior Notes being disposed of will no longer be Restricted
Securities or (iv) if the Holder of the Series A Notes delivers to
the Trustee an Opinion of Counsel stating that the Series A Notes
are no longer Restricted Securities.
Upon any such exchange the Series A Notes shall be cancelled
in accordance with Section 3.9 and shall no longer be deemed
Outstanding for any purpose. Subject to Section 3.6 hereof, in no
event shall the aggregate principal amount of both of the Series A
Notes and Series B Notes Outstanding exceed $27,000,000.
(36)
<PAGE>
The Series A Notes shall be known and designated as the "11
1/2% Series A Senior Secured Notes due 2000" of the Issuer and the
Series B Notes shall be known and designated as the "11 1/2%
Series B Senior Secured Notes due 2000" of the Issuer. The Senior
Notes shall be known and designated as the "11-1/2% Senior Secured
Notes due 2000" of the Issuer. The Stated Maturity of the Senior
Notes shall be November 15, 2000. The Senior Notes, shall bear
interest on the principal amount thereof at the rate of 11 1/2%
per annum (subject, in the case of the Series A Notes, to certain
liquidation damages provided for in the Registration Rights
Agreement), payable semiannually on May 15 and November 15 in each
year, commencing May 15, 1994, until the principal thereof is paid
or duly provided for. Interest on any overdue principal, interest
(to the extent lawful) or premium, if any, shall be payable on
demand.
The principal of, premium, if any, and interest on Senior
Notes shall be payable at the office or agency of the Issuer
maintained for such purpose in The City of New York, or at such
other office or agency of the Issuer as may be maintained for such
purpose; provided, however, that at the option of the Issuer
interest may be paid by check mailed to addresses of the Persons
entitled thereto as such addresses shall appear on the Senior Note
Register.
The Senior Notes shall be redeemable as provided in Article
Eleven.
At the election of the Issuer and the Partnership, the entire
indebtedness on the Senior Notes or certain of the Issuer's or the
Partnership's obligations and covenants and certain Events of
Default thereunder may be defeased as provided in Article Four.
The Senior Notes shall be secured as provided in Article
Twelve.
If the Issuer or the Partnership is served with notice of the
disqualification of any Holder under N.J.S.A. ss5:12-105(d) by the
CCC, such Holder will be prohibited under N.J.S.A. ss 5:12-105(e)
from (a) receiving interest on the Senior Notes held by such
Holder, (b) exercising directly or through any trustee or nominee,
any right conferred on such Senior Notes and (c) receiving any
remuneration in any form from any company licensed by the CCC
(including the Issuer, the Partnership and the Trustee) for
services rendered or otherwise.
Section 3.2. Denominations.
The Senior Notes shall be issuable only in registered form
without coupons and only in denominations of $1,000 and in
integral multiples thereof.
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Section 3.3. Execution, Authentication, Delivery and Dating.
The Senior Notes shall be executed on behalf of the Issuer by
its Chairman of the Board of Directors, Vice Chairman, its
President or one of its Vice Presidents, under its corporate seal
reproduced thereon attested by its Secretary or one of its
Assistant Secretaries. The signature of any of these officers on
the Senior Notes may be manual or facsimile.
Senior Notes bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Issuer
shall bind the Issuer, notwithstanding that such individuals or
any of them have ceased to hold such offices prior to the
authentication and delivery of such Senior Notes or did not hold
such offices on the date of such Senior Notes.
At any time and from time to time after the execution and
delivery of this Indenture, the Issuer may deliver Senior Notes
executed by the Issuer to the Trustee for authentication, together
with an Issuer Order for the authentication and delivery of such
Senior Notes; and the Trustee in accordance with such Issuer Order
shall authenticate and deliver such Senior Notes as provided in
this Indenture and not otherwise.
Each Senior Note shall be dated the date of its
authentication.
No Senior Note shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there
appears on such Senior Note a certificate of authentication
substantially in the form provided for herein duly executed by the
Trustee by manual signature of an authorized officer, and such
certificate upon any Senior Note shall be conclusive evidence, and
the only evidence, that such Senior Note has been duly
authenticated and delivered hereunder.
In case the Issuer or the Partnership, pursuant to Article
Eight, shall be consolidated, merged with or into any other Person
or shall sell, convey, assign, transfer or lease substantially all
of its properties and assets to any Person, and the successor
Person resulting from such consolidation, or surviving such
merger, or into which the Issuer or the Partnership shall have
been consolidated or merged, or the Person which shall have
received a conveyance, transfer or lease as aforesaid, shall have
executed an indenture supplemental hereto with the Trustee
pursuant to Article Eight, any of the Senior Notes authenticated
or delivered prior to such consolidation, merger, conveyance,
transfer or lease may, from time to time, at the request of the
successor Person, be exchanged for other Senior Notes executed in
the name of the successor Person with such changes in phraseology
and form as may be appropriate, but otherwise in substance of like
tenor as the Senior Notes surrendered for such exchange and of
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like principal amount; and the Trustee, upon the request of the
successor Person, shall authenticate and deliver Senior Notes as
specified in such Request for the purpose of such exchange. If
Senior Notes shall at any time be authenticated and delivered in
any new name of a successor Person pursuant to this Section in
exchange or substitution for or upon registration of transfer of
any Senior Notes, such successor Person, at the option of the
Holders but without expense to them, shall provide for the
exchange of all Senior Notes at the time Outstanding for Senior
Notes authenticated and delivered in such new name.
The Trustee may appoint an authenticating agent
acceptable to the Issuer to authenticate Senior Notes on behalf of
the Trustee. Unless limited by the terms of such appointment, an
authenticating agent may authenticate Senior Notes whenever the
Trustee may do so except upon original issuance. Each reference
in this Indenture to authentication by the Trustee includes
authentication by such agent. An authenticating agent has the
same rights as any Senior Note Registrar or Paying Agent to deal
with the Issuer and its Affiliates.
Section 3.4. Temporary Securities.
Pending the preparation of definitive Senior Notes, the
Issuer may execute, and upon order of the Issuer the Trustee shall
authenticate and deliver, temporary Senior Notes which are
printed, lithographed, typewritten, mimeographed or otherwise
produced, in any authorized denomination, substantially of the
tenor of the definitive Senior Notes in lieu of which they are
issued and with such appropriate insertions, omissions,
substitutions and other variations as the officers executing such
Senior Notes may determine, as conclusively evidenced by their
execution of such temporary Senior Notes.
If temporary Senior Notes are issued, the Issuer will cause
definitive Senior Notes to be prepared without unreasonable delay.
After the preparation of definitive Senior Notes, the temporary
Senior Notes shall be exchangeable for definitive Senior Notes
upon surrender of the temporary Senior Notes at the office or
agency of the Issuer designated for such purpose pursuant to
Section 10.2, without charge to the Holder. Upon surrender for
cancellation of any one or more temporary Senior Notes the Issuer
shall execute and the Trustee shall authenticate and deliver in
exchange therefor a like principal amount of definitive Senior
Notes of authorized denominations. Until so exchanged the
temporary Senior Notes shall in all respects be entitled to the
same benefits under this Indenture as definitive Senior Notes.
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Section 3.5. Registration, Registration of Transfer and
Exchange.
The Issuer shall cause to be kept at the Corporate Trust
Office of the Trustee, or such other office as the Trustee may
designate, a register (the register maintained in such office and
in any other office or agency designated pursuant to Section 10.2
being herein sometimes referred to as the "Senior Note Register")
in which, subject to such reasonable regulations as the Senior
Note Registrar may prescribe, the Issuer shall provide for the
registration of Senior Notes and of transfers of Senior Notes.
The Trustee is hereby initially appointed "Senior Note Registrar"
for the purpose of registering Senior Notes and transfers of
Senior Notes as herein provided.
Upon surrender for registration of transfer of any Senior
Note in certificated form at the office or agency of the Issuer
designated pursuant to Section 10.2, the Issuer shall execute, and
the Trustee shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Senior Notes
of any authorized denomination or denominations, of a like
aggregate principal amount.
At the option of the Holder, Senior Notes may be exchanged
for other Senior Notes of any authorized denomination or
denominations, of a like aggregate principal amount, upon
surrender of the Senior Notes to be exchanged at such office or
agency. Whenever any such Senior Notes are so surrendered for
exchange, the Issuer shall execute, and the Trustee shall
authenticate and deliver, the Senior Notes which the Holder making
the exchange is entitled to receive.
All Senior Notes issued upon any registration of transfer or
exchange of Senior Notes shall be the valid obligations of the
Issuer, evidencing the same Indebtedness, and entitled to the same
benefits under this Indenture, as the Senior Notes surrendered
upon such registration of transfer or exchange.
Every Senior Note presented or surrendered for registration
of transfer, or for exchange or redemption shall (if so required
by the Issuer or the Trustee) be duly endorsed, or be accompanied
by a written instrument of transfer in form satisfactory to the
Issuer and the Senior Note Registrar, duly executed by the Holder
thereof or his attorney duly authorized in writing.
No service charge shall be made to a Holder for any
registration of transfer or exchange or redemption of Senior
Notes, but the Issuer may require payment of a sum sufficient to
pay all documentary, stamp or similar issue or transfer taxes or
other governmental charges that may be imposed in connection with
any registration of transfer or exchange of Senior Notes, other
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than exchanges pursuant to Section 3.3, 3.4, 9.6, 10.13, or 11.10
not involving any transfer.
The Issuer shall not be required (a) to issue, register the
transfer of or exchange any Senior Note during a period beginning
at the opening of business 15 days before the mailing of a notice
of redemption of the Senior Notes selected for redemption under
Section 11.6 and ending at the close of business on the day of
such mailing, or (b) to register the transfer of or exchange any
Senior Note so selected for redemption in whole or in part, except
the unredeemed portion of Senior Notes being redeemed in part.
All Series A Notes issued hereunder shall bear the following
legend:
THIS SECURITY (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A
TRANSACTION EXEMPT FROM REGISTRATION UNDER THE SECURITIES ACT OF
1933, AS AMENDED, AND MAY NOT BE SOLD OR OTHERWISE TRANSFERRED IN
THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION
THEREFROM AND IN ANY EVENT MAY BE SOLD OR OTHERWISE TRANSFERRED
ONLY IN ACCORDANCE WITH THE INDENTURE, COPIES OF WHICH ARE
AVAILABLE FOR INSPECTION AT THE CORPORATE TRUST OFFICE OF THE
TRUSTEE. THE EXEMPTION PROVIDED BY RULE 144A UNDER THE SECURITIES
ACT MAY BE AVAILABLE TO PERMIT SALE OR TRANSFER OF THIS SECURITY
TO QUALIFIED INSTITUTIONAL BUYERS (WITHIN THE MEANING OF
RULE 144A) WITH REGISTRATION.
EACH HOLDER OF THIS SECURITY REPRESENTS TO THE ISSUER THAT
(A) SUCH HOLDER WILL NOT SELL OR OTHERWISE TRANSFER THIS SECURITY
(WITHOUT CONSENT OF THIS ISSUER) PRIOR TO THREE YEARS FROM THE
LATER OF DECEMBER 28, 1993 OR THE DATE ON WHICH THIS SECURITY WAS
LAST HELD BY AN AFFILIATE OF THE ISSUER OTHER THAN (I) TO A
QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION COMPLYING WITH
RULE 144A, (II) TO A NON-U.S. PERSON IN A TRANSACTION COMPLYING
WITH REGULATION S UNDER THE SECURITIES ACT, (III) FOLLOWING TWO
YEARS FROM SUCH TIME, IN A TRANSACTION COMPLYING WITH RULE 144
UNDER THE SECURITIES ACT OR (IV) PURSUANT TO ANOTHER AVAILABLE
EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT (IT BEING
UNDERSTOOD THAT AS A CONDITION TO THE REGISTRATION OF TRANSFER OF
ANY SECURITIES, THE ISSUER OR THE TRUSTEE MAY IN CIRCUMSTANCES
EITHER OR THEM BELIEVES APPROPRIATE, REQUIRE EVIDENCE AS TO
COMPLIANCE WITH ANY SUCH EXEMPTION) AND THAT (B) THE HOLDER WILL,
AND EACH SUBSEQUENT HOLDER IS REQUIRED TO NOTIFY ANY PURCHASER OF
THIS SECURITY FROM IT OR THE RESALE RESTRICTIONS REFERRED TO IN
(A) ABOVE.
Each certificate evidencing a Series A Note (and all Senior
Notes issued in exchange therefor or substitution thereof), until
such time as the same is no longer a Series A Note, shall bear a
legend in substantially the form set forth on the Forms of Face of
Security set forth in Section 2.2 hereof. Prior to any transfer
or exchange of a legended Series A Note for a Series B Note, the
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Issuer shall deliver an Officer's Certificate to the Trustee
directing it to transfer or exchange such Security for another or
unlegended Note.
Section 3.6. Mutilated, Destroyed, Lost and Stolen Senior
Notes.
If (a) any mutilated Senior Note is surrendered to the
Trustee, or (b) the Issuer and the Trustee receive evidence to
their satisfaction of the destruction, loss or theft of any Senior
Note, and there is delivered to the Issuer and the Trustee, such
security or indemnity, in each case, as may be required by them to
save each of them harmless, then, in the absence of notice to the
Issuer or the Trustee that such Senior Note has been acquired by a
bona fide purchaser, the Issuer shall execute and upon its written
request the Trustee shall authenticate and deliver, in exchange
for any such mutilated Senior Note or in lieu of any such
destroyed, lost or stolen Senior Note, a replacement Senior Note
of like tenor and principal amount, bearing a number not
contemporaneously Outstanding.
In case any such mutilated, destroyed, lost or stolen Senior
Note has become or is about to become due and payable, the Issuer
in its discretion may, instead of issuing a replacement Senior
Note, pay such Senior Note.
Upon the issuance of any replacement Senior Notes under this
Section, the Issuer may require the payment of a sum sufficient to
pay all documentary, stamp or similar issue or transfer taxes or
other governmental charges that may be imposed in relation thereto
and any other expenses (including the fees and expenses of the
Trustee) connected therewith.
Every replacement Senior Note issued pursuant to this
Section in lieu of any destroyed, lost or stolen Senior Note shall
constitute an original additional contractual obligation of the
Issuer, the Partnership and any other obligor under the Senior
Notes, whether or not the destroyed, lost or stolen Senior Note
shall be at any time enforceable by anyone, and shall be entitled
to all benefits of this Indenture equally and proportionately with
any and all other Senior Notes duly issued hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with
respect to the replacement or payment of mutilated, destroyed,
lost or stolen Senior Notes.
Section 3.7. Payment of Interest.
Interest on any Senior Note which is payable, and is
punctually paid or duly provided for, on any Interest Payment Date
shall be paid to the Person in whose name that Senior Note (or one
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or more Predecessor Senior Notes) is registered at the close of
business on the Regular Record Date for such interest.
Any interest on any Senior Note which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date
and interest on such defaulted interest at the then applicable
interest rate borne by the Senior Notes, to the extent lawful
(such defaulted interest and interest thereon herein collectively
called "Defaulted Interest") shall forthwith cease to be payable
to the Holder on the Regular Record Date; and such Defaulted
Interest may be paid by the Issuer, at its election in each case,
as provided in Subsection (a) or (b) below:
(a) The Issuer may elect to make payment of any Defaulted
Interest to the Persons in whose names the Senior Notes (or their
respective Predecessor Senior Notes) are registered at the close
of business on a Special Record Date for the payment of such
Defaulted Interest, which shall be fixed in the following manner.
The Issuer shall notify the Trustee in writing of the amount of
Defaulted Interest proposed to be paid on each Senior Note and the
date of the proposed payment, and at the same time the Issuer
shall deposit with the Trustee an amount of money equal to the
aggregate amount proposed to be paid in respect of such Defaulted
Interest or shall make arrangements satisfactory to the Trustee
for such deposit prior to the date of the proposed payment, such
money when deposited to be held in trust for the benefit of the
Persons entitled to such Defaulted Interest as in this Subsection
provided. Thereupon the Trustee shall fix a Special Record Date
for the payment of such Defaulted Interest which shall be not more
than 15 days and not less than 10 days prior to the date of the
proposed payment and not less than 10 days after the receipt by
the Trustee of the notice of the proposed payment. The Trustee
shall promptly notify the Issuer in writing of such Special Record
Date. In the name and at the expense of the Issuer, the Trustee
shall cause notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor to be mailed,
first-class postage prepaid, to each Holder at his address as it
appears in the Senior Note Register, not less than 10 days prior
to such Special Record Date. Notice of the proposed payment of
such Defaulted Interest and the Special Record Date therefor
having been so mailed, such Defaulted Interest shall be paid to
the Persons in whose names the Senior Notes (or their respective
Predecessor Senior Notes) are registered on such Special Record
Date and shall no longer be payable pursuant to the following
Subsection (b).
(b) The Issuer may make payment to the Persons in whose name
the Senior Notes are registered at the close of business on the
Special Record Date of any Defaulted Interest in any other lawful
manner not inconsistent with the requirements of any securities
exchange on which the Senior Notes may be listed, and upon such
notice as may be required by such exchange, unless, after written
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notice given by the Issuer to the Trustee of the proposed payment
pursuant to this Subsection, such manner of payment shall not be
deemed practicable by the Trustee (acting reasonably). The
Trustee shall give prompt written notice to the Issuer of any such
determination.
Subject to the foregoing provisions of this Section, each
Senior Note delivered under this Indenture upon registration of
transfer of or in exchange for or in lieu of any other Senior Note
shall carry the rights to interest accrued and unpaid, and to
accrue, which were carried by such other Senior Note.
Section 3.8. Persons Deemed Owners.
Prior to and at the time of due presentment for registration
of transfer, the Issuer, the Trustee and any agent of the Issuer
or the Trustee may treat the Person in whose name any Senior Note
is registered as the owner of such Senior Note for the purpose of
receiving payment of principal of, premium, if any, and (subject
to Section 3.7) interest on such Senior Note and for all other
purposes whatsoever, whether or not such Senior Note is overdue,
and neither the Issuer, the Trustee nor any agent of the Issuer or
the Trustee shall be affected by notice to the contrary.
Section 3.9. Cancellation.
All Senior Notes surrendered for payment, purchase,
redemption or registration of transfer or exchange shall be
delivered to the Trustee and, if not already cancelled, shall be
promptly cancelled by it. The Issuer and the Partnership may at
any time deliver to the Trustee for cancellation any Senior Notes
previously authenticated and delivered hereunder which the Issuer
or the Partnership may have acquired in any manner whatsoever, and
all Senior Notes so delivered shall be promptly cancelled by the
Trustee. No Senior Notes shall be authenticated in lieu of or in
exchange for any Senior Notes cancelled as provided in this
Section, except as expressly permitted by this Indenture. All
cancelled Senior Notes held by the Trustee shall be destroyed and
certification of their destruction delivered to the Issuer unless
by an Issuer Order the Issuer shall direct that the cancelled
Senior Notes be returned to it. The Trustee shall provide the
Issuer a list of all Senior Notes that have been cancelled from
time to time as requested by the Issuer.
Section 3.10. Computation of Interest.
Interest on the Senior Notes shall be computed on the basis
of a 360-day year of twelve 30-day months.
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Section 3.11. Non-recourse.
Notwithstanding anything herein (including the Senior
Guarantee) or in any other agreement, document, certificate,
instrument, statement or omission referred to below to the
contrary, the Issuer and the Partnership are liable hereunder and
under the Senior Notes only to the extent of the assets of the
Issuer and the Partnership and the interest of the Issuer in the
Senior Notes and no other person or entity, including, but not
limited to, any partner, officer, committee or committee member of
the Partnership or any partner therein or of any Affiliate of the
Partnership, or any incorporator, officer, director or shareholder
of the Issuer, or any Affiliate or controlling Person or entity of
any of the foregoing, or any agent, employee or lender of any of
the foregoing, or any successor, personal representative, heir or
assign of any of the foregoing, in each case past, present, or as
they may exist in the future, shall be liable in any respect
(including without limitation the breach of any representation,
warranty, covenant, agreement, condition or indemnification or
contribution undertaking contained herein or therein) under, in
connection with, arising out of, or relating to this Indenture or
any other agreement, document, certificate, instrument or
statement (oral or written) related to, executed or to be
executed, delivered or to be delivered, or made or to be made, or
any omission made or to be made, in connection with any of the
foregoing or any of the transactions contemplated in any such
agreement, document, certificate, instrument or statement.
Notwithstanding the foregoing, the Holders preserve any personal
claims they may have for fraud, liabilities under the Securities
Act, and other liabilities that cannot be waived under applicable
federal and state laws in connection with the purchase of the
Senior Notes; provided, however, that such conduct shall not
constitute an Event of Default under this Indenture, the Senior
Notes or the Senior Note Mortgage or any document executed in
conjunction therewith or otherwise related thereto. Any
agreement, document, certificate, statement or other instrument to
be executed simultaneously with, in connection with, arising out
of or relating to this Indenture, the Senior Notes or any other
agreement, document, certificate, statement or instrument referred
to above, or any agreement, document, certificate, statement or
instrument contemplated hereby shall contain language mutatis
mutandis to this paragraph and, if such language is omitted, shall
be deemed to contain such language.
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ARTICLE FOUR
DEFEASANCE AND COVENANT DEFEASANCE
Section 4.1. Option to Effect Defeasance or Covenant
Defeasance.
The Issuer or the Partnership may, at their option, by Board
Resolution, at any time, with respect to the Senior Notes, elect
to have either Section 4.2 or Section 4.3 be applied to all of the
Outstanding Senior Notes (the "Defeased Senior Notes"), upon
compliance with the conditions set forth below in this Article
Four.
Section 4.2. Defeasance and Discharge.
Upon the Issuer's or the Partnership's exercise under
Section 4.1 of the option applicable to this Section 4.2, each of
the Issuer, the Partnership and any other obligor under the Senior
Notes shall be deemed to have been discharged from its obligations
with respect to the Defeased Senior Notes on the date the
conditions set forth below are satisfied (hereinafter,
"defeasance"). For this purpose, such defeasance means that the
Issuer and the Partnership shall be deemed to have paid and
discharged the entire indebtedness represented by the Defeased
Senior Notes, which shall thereafter be deemed to be "Outstanding"
only for the purposes of Section 4.5 and the other Sections of
this Indenture referred to in (a) and (b) below, and to have
satisfied all their other obligations under such Senior Notes and
this Indenture insofar as such Senior Notes are concerned (and the
Trustee, at the expense of the Issuer, and, upon written request
of the Issuer, shall execute proper instruments acknowledging the
same), except for the following which shall survive until
otherwise terminated or discharged hereunder: (a) the rights of
Holders of Defeased Senior Notes to receive solely from the trust
fund described in Section 4.4 and as more fully set forth in such
Section, payments in respect of the principal of, premium, if any,
and interest on such Senior Notes when such payments are due, (b)
the Issuer's obligations with respect to such Defeased Senior
Notes under Sections 3.4, 3.5, 3.6, 10.2 and 10.3, (c) the rights,
powers, trusts, duties, indemnities and immunities of the Trustee
hereunder and (d) this Article Four. Subject to compliance with
this Article Four, the Issuer and the Partnership may exercise
their option under this Section 4.2 notwithstanding the prior
exercise of their option under Section 4.3 with respect to the
Senior Notes.
Section 4.3. Covenant Defeasance.
Upon the Issuer's or the Partnership's exercise under
Section 4.1 of the option applicable to this Section 4.3, each of
the Issuer, the Partnership and any other obligor under the Senior
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Notes shall be released from its obligations under any covenant or
provision contained in Sections 8.1(a)(ii), (iii)(B), and (v)(B),
8(b)(ii), (iv), (v) and (vii)(B), 10.5 through 10.17, 10.19 and
10.21, and Article Twelve shall not apply with respect to the
Defeased Senior Notes on and after the date the conditions set
forth below are satisfied (hereinafter, "covenant defeasance"),
and the Defeased Senior Notes shall thereafter be deemed to be not
"Outstanding" for the purposes of any direction, waiver, consent
or declaration or Act of Holders (and the consequences of any
thereof) in connection with such covenants, but shall continue to
be deemed "Outstanding" for all other purposes hereunder. For
this purpose, such covenant defeasance means that, with respect to
the Defeased Senior Notes, the Issuer, the Partnership and any
such obligor may omit to comply with and shall have no liability
in respect of any term, condition or limitation set forth in any
such Section or Article, whether directly or indirectly, by reason
of any reference elsewhere herein, in such Defeased Senior Notes
or in the Senior Note Mortgage Documents or other documents to any
such Section or Article or by reason of any reference in any such
Section or Article to any other provision herein or in any other
document and such omission to comply shall not constitute a
Default or an Event of Default under Section 5.1(d) but, except as
specified above and in the following sentence, the remainder of
this Indenture and such Defeased Senior Notes shall be unaffected
thereby. Upon any covenant defeasance, the events set forth in
Sections 5.1(e), (f), (j) and (l) shall not constitute Defaults or
Events of Default hereunder and any cross-reference in the Senior
Note Mortgage to a Default or Event of Default under this
Indenture shall not be deemed to include such Defaults or Events
of Default.
Section 4.4. Conditions to Defeasance or Covenant
Defeasance.
The following shall be the conditions to application of
either Section 4.2 or Section 4.3 to the Defeased Senior Notes:
(1) The Issuer or the Partnership shall irrevocably have
deposited or caused to be deposited with the Trustee (or another
trustee satisfying the requirements of Section 6.8 who shall agree
to comply with the provisions of this Article Four applicable to
it) as trust funds in trust for the purpose of making the
following payments, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of such Senior
Notes, (a) money in an amount, or (b) U.S. Government Obligations
which through the scheduled payment of principal and interest in
respect thereof in accordance with their terms will provide, not
later than one day before the due date of any payment, money in an
amount, or (c) a combination thereof, sufficient, in the opinion
of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the
Trustee, to pay and discharge and which shall be applied by the
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Trustee (or other qualifying trustee) to pay and discharge, (i)
the principal of, premium, if any, and interest on the Defeased
Senior Notes on the Stated Maturity of such principal or
installment of principal or interest and (ii) any mandatory
payments applicable to the Outstanding Senior Notes on the day on
which such payments are due and payable in accordance with the
terms of this Indenture and of such Senior Notes; provided, that
the Trustee (or other qualifying trustee) shall have been
irrevocably instructed to apply such money or the proceeds of such
U.S. Government Obligations to said payments with respect to the
Senior Notes. For this purpose, "U.S. Government Obligations"
means securities that are (i) direct obligations of the United
States of America for the timely payment of which its full faith
and credit is pledged or (ii) obligations of a Person controlled
or supervised by and acting as an agency or instrumentality of the
United States of America the timely payment of which is
unconditionally guaranteed as a full faith and credit obligation
by the United States of America, which, in either case, are not
callable or redeemable at the option of the issuer thereof, and
shall also include a depository receipt issued by a bank (as
defined in Section 3(a)(2) of the Securities Act), as custodian
with respect to any such obligation or a specific payment of
principal of or interest on any such obligation held by such
custodian for the account of the holder of such depository
receipt, provided, that (except as required by law) such custodian
is not authorized to make any deduction from the amount payable to
the holder of such depository receipt from any amount received by
the custodian in respect of the U.S Government Obligation or the
specific payment of principal of or interest on the U.S.
Government Obligation evidenced by such depository receipt.
(2) No Default or Event of Default shall have occurred and
be continuing on the date of such deposit or, insofar as
subsections 5.1(h) and (i) are concerned, at any time during the
period ending on the 91st day after the date of such deposit (it
being understood that this condition shall not be deemed satisfied
until the expiration of such period).
(3) Such defeasance or covenant defeasance shall not cause
the Trustee for the Senior Notes to have a conflicting interest in
violation of Section 6.7 and for purposes of the Trust Indenture
Act with respect to any securities of the Issuer or any other
obligor under the Senior Notes.
(4) Such defeasance or covenant defeasance shall not result
in a breach or violation of, or constitute a default or event of
default under, this Indenture or any other material agreement or
instrument to which the Issuer, the Partnership or any other
obligor under the Senior Notes is a party or by which it is bound.
(5) In the case of an election under Section 4.2, the Issuer
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shall have delivered to the Trustee an Opinion of Counsel stating
that (x) the Issuer or the Partnership, as the case may be, has
received from, or there has been published by, the Internal
Revenue Service a ruling or (y) since the date hereof, there has
been a change in the applicable Federal income tax law, in either
case to the effect that, and based thereon such opinion shall
confirm that, the Holders of the Outstanding Senior Notes will not
recognize income, gain or loss for Federal income tax purposes as
a result of such defeasance and will be subject to Federal income
tax on the same amounts, in the same manner and at the same times
as would have been the case if such defeasance had not occurred.
(6) In the case of an election under Section 4.3, the Issuer
or the Partnership, as the case may be, shall have delivered to
the Trustee an Opinion of Counsel to the effect that the Holders
of the Outstanding Senior Notes will not recognize income, gain or
loss for Federal income tax purposes as a result of such covenant
defeasance and will be subject to Federal income tax on the same
amounts, in the same manner and at the same times as would have
been the case if such covenant defeasance had not occurred.
(7) The Issuer or the Partnership, as the case may be, shall
have delivered to the Trustee an Officers' Certificate stating
that the deposit made by the Issuer or the Partnership, as the
case may be, pursuant to its election under Section 4.2 or 4.3 was
not made by the Issuer or the Partnership, as the case may be,
with the intent of preferring the Holders over the other creditors
of the Issuer or the Partnership with the intent of defeating,
hindering, delaying or defrauding creditors of the Issuer or the
Partnership, as the case may be, or others.
(8) The Issuer or the Partnership, as the case may be, shall
have delivered to the Trustee an Officers' Certificate and an
Opinion of Counsel, each stating that all conditions precedent
(other than conditions requiring the passage of time) provided for
relating to either the defeasance under Section 4.2 or the
covenant defeasance under Section 4.3 (as the case may be) have
been complied with as contemplated by this Section 4.4. Opinions
required to be delivered under this Section may have
qualifications customary for opinions of the type required.
Section 4.5. Deposited Money and U.S. Government Obligations
to be Held in Trust; Other Miscellaneous Provisions.
Subject to the provisions of the last paragraph of
Section 10.3, all money and U.S. Government Obligations (including
the proceeds thereof) deposited with the Trustee (or other
qualifying trustee--collectively for purposes of this Section 4.5,
the "Trustee") pursuant to Section 4.4 in respect of the Defeased
Senior Notes shall be held in trust and applied by the Trustee, in
accordance with the provisions of such Senior Notes and this
Indenture, to the payment, either directly or through any Paying
Agent (including the Issuer acting as its own Paying Agent) as the
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Trustee may determine, to the Holders of such Defeased Senior
Notes of all sums due and to become due thereon in respect of
principal, premium, if any, and interest, but such money need not
be segregated from other funds except to the extent required by
law.
The Issuer shall pay and indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against the U.S.
Government Obligations deposited pursuant to Section 4.4 or the
principal and interest received in respect thereof other than any
such tax, fee or other charge which by law is for the account of
the Holders of the Defeased Senior Notes.
Anything in this Article Four to the contrary
notwithstanding, the Trustee shall deliver or pay to the Issuer
from time to time upon Issuer Request any money or U.S. Government
Obligations held by it as provided in Section 4.4 which, in the
opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered
to the Trustee, are in excess of the amount thereof which would
then be required to be deposited to effect an equivalent
defeasance or covenant defeasance.
Section 4.6. Reinstatement.
If the Trustee or Paying Agent is unable to apply any money
or U.S. Government Obligations in accordance with Section 4.2 or
4.3, as the case may be, by reason of any order or judgment of any
court or governmental authority enjoining, restraining or
otherwise prohibiting such application, then the Issuer's and the
Partnership's obligations under this Indenture and the Senior
Notes shall be revived and reinstated as though no deposit had
occurred pursuant to Section 4.2 or 4.3, as the case may be, until
such time as the Trustee or Paying Agent is permitted to apply all
such money or U.S. Government Obligations in accordance with
Section 4.2 or 4.3, as the case may be; provided, however, that if
the Issuer makes any payment of principal, premium, if any, or
interest on any Senior Note following the reinstatement of its
obligations, the Issuer shall be subrogated to the rights of the
Holders of such Senior Notes to receive such payment from the
money held by the Trustee or Paying Agent.
ARTICLE FIVE
REMEDIES
Section 5.1. Events of Default.
"Event of Default", wherever used herein, means any one of
the following events (whatever the reason for such Event of
Default and whether it shall be occasioned by the provisions of
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Article Twelve or be voluntary or involuntary or be effected by
operation of law or pursuant to any judgment, decree or order of
any court or any order, rule or regulation of any administrative
or governmental body):
(a) default in the payment of any interest (including any
Defaulted Interest) on any of the Senior Notes when the same
becomes due and payable and the default continues for a period of
30 days;
(b) default in the payment of any Sinking Fund Payment on
any of the Senior Notes when the same becomes due and payable and
the default continues for a period of 10 days;
(c) default in the payment of the principal of (or premium,
if any, on) any of the Senior Notes when the same becomes due and
payable at its Stated Maturity, upon acceleration, optional
redemption, required repurchase, scheduled principal payment or
otherwise;
(d)(i) default in the performance, or breach, of any
covenant of the Issuer or the Partnership under the Senior Notes,
the Senior Guarantee or this Indenture (other than a default in
the performance, or breach, of a covenant that is specifically
dealt with elsewhere in this Section 5.1) that continues for 30
days after written notice has been given, by registered or
certified mail, (x) to the Issuer by the Trustee or (y) to the
Issuer and the Trustee by Holders of at least 25% of the aggregate
principal amount of Outstanding Senior Notes, specifying such
default and requiring that it be remedied; (ii) default in the
performance or breach of the provisions of Article Eight hereof;
(iii) the Issuer or the Partnership shall have failed to make or
consummate a Change of Control Offer in accordance with
Section 10.13 hereof; or (iv) the Issuer or the Partnership shall
have failed to make or consummate a required purchase of Mortgage
Notes or PIK Notes in accordance with Section 10.9;
(e)(i) so long as there are only Registrable Series A Notes
outstanding hereunder, default by the Partnership, the Issuer or
any of the Subsidiaries in the payment, when due (whether at
maturity, required prepayment, acceleration, demand or otherwise)
of any Indebtedness in an aggregate principal amount in excess of
$10,000,000 or any interest or premium thereon and such failure
shall continue after the applicable grace period, if any,
specified in the agreement or instrument relating to such
Indebtedness or any such Indebtedness shall be declared to be due
and payable or required to be prepaid (other than by a regularly
scheduled required prepayment) prior to the stated maturity
thereof; and (ii) on and after the date on which any of the events
referred to in clauses (A), (B) or (C) of the definition of
Registrable Series A Notes has occurred, the Partnership, the
Issuer or any of the Subsidiaries shall fail to perform or observe
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any term, covenant or agreement on its part to be performed or
observed under any agreement or instrument evidencing or securing
or relating to any Indebtedness in an aggregate principal amount
in excess of $10,000,000 when required to be performed or
observed, if the effect of such failure is to accelerate, or to
permit the holder or holders of such Indebtedness to accelerate,
the maturity of such Indebtedness;
(f) one or more judgments, orders or decrees for the payment
of money in excess of $10,000,000, either individually or in the
aggregate, shall be rendered against the Issuer, the Partnership
or any of the Subsidiaries or any of their respective properties
and shall not be discharged and either (i) an enforcement
proceeding shall have been commenced by any creditor upon such
judgment, order or decree or (ii) there shall be any period of 60
days, during which a stay of enforcement of such judgment or
order, by reason of a pending appeal or otherwise, shall not be in
effect;
(g) an "Event of Default" under any Indebtedness secured by
a Lien on any of the property or assets of the Issuer or any of
the Subsidiaries having a book value in excess of $500,000, which
Lien is senior to the Lien on such property or assets which
secures the Senior Notes;
(h) there shall have been the entry by a court having
jurisdiction in the premises of (i) a decree or order for relief
in respect of the Issuer, the Partnership or any of the
Subsidiaries in an involuntary case or proceeding under any
applicable Bankruptcy Law or (ii) a decree or order adjudging the
Issuer, the Partnership or any of the Subsidiaries bankrupt or
insolvent, or seeking reorganization, arrangement, adjustment or
composition of or in respect of the Issuer, the Partnership or any
of the Subsidiaries under any applicable federal or state law, or
appointing a custodian, receiver, liquidator, assignee, trustee,
sequestrator (or other similar official) of the Issuer, the
Partnership or any of the Subsidiaries or of any substantial part
of its property, or ordering the winding-up or liquidation of its
affairs, and the continuance of any such decree or order for
relief or any such other decree or order unstayed and in effect
for a period of 60 consecutive days;
(i)(i) the Issuer, the Partnership or any of the Subsidiaries
commences a voluntary case or proceeding under any applicable
Bankruptcy Law or any other case or proceeding to be adjudicated
bankrupt or insolvent, or (ii) the Issuer, the Partnership or any
of the Subsidiaries consents to the entry of a decree or order for
relief in respect of the Issuer or such Subsidiary in an
involuntary case or proceeding under any applicable Bankruptcy Law
or to the commencement of any bankruptcy or insolvency case or
proceeding against it, or (iii) the Issuer, the Partnership or any
of the Subsidiaries files a petition or answer or consent seeking
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reorganization or relief under any applicable federal or state
law, or the Issuer, the Partnership or any of the Subsidiaries
consents to (1) the filing of such petition or the appointment of
or taking possession by a custodian, receiver, liquidator,
assignee, trustee, sequestrator or similar official of the Issuer,
the Partnership or such Subsidiary or of any substantial part of
its property, (2) the making by it of an assignment for the
benefit of creditors or (3) the admission by it in writing of its
inability to pay its debts generally as they become due, or (iv)
the taking of corporate or partnership action by the Issuer, the
Partnership or any of the Subsidiaries in furtherance of any such
action in this paragraph (i);
(j) the revocation, suspension or involuntary loss of any
Permit which results in the cessation of a substantial portion of
the operations of the Casino-Hotel for a period of more than 90
consecutive days;
(k) the Senior Guarantee, the Senior Guarantee Mortgage, or
the Senior Note Mortgage shall for any reason cease to be in full
force and effect or enforceable in accordance with its terms;
(l) an "Event of Default" under the Senior Note Mortgage,
the Mortgage Note Indenture or the PIK Note Indenture, shall have
occurred and is continuing; and
(m) an entity, which at the time, directly or indirectly,
holds general partnership interests in both of Trump Plaza
Associates and Trump Taj Mahal Associates, which general
partnership interests had previously been held by Donald J. Trump
and his Affiliates, sells through an initial public distribution
its equity securities without having first acquired all the direct
and indirect general partnership interests in the Partnership held
by Donald J. Trump as of the date of this Indenture.
Section 5.2. Acceleration of Maturity; Rescission and
Annulment.
If an Event of Default (other than an Event of Default
specified in Section 5.1(h) or (i)) occurs and is continuing, then
and in every such case the Trustee or the Holders of not less than
25% in aggregate principal amount of the Outstanding Senior Notes
may, and the Trustee upon the request of the Holders of not less
than 25% in aggregate principal amount of the Outstanding Senior
Notes shall, declare the principal of all the Senior Notes to be
due and payable immediately in an amount equal to the principal
amount of the Senior Notes, together with accrued and unpaid
interest to the date the Senior Notes become due and payable, by a
notice in writing to the Issuer (and to the Trustee, if given by
the Holders) unless on or prior to such amounts having become due
and payable the Issuer shall have discharged or paid in full the
Indebtedness, if any, that is the subject of such Event of Default
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and shall have given written notice of such cure to the Trustee
(which notice in the case of an Event of Default specified in
Section 5.1(e) shall be countersigned by the holders of the
Indebtedness that is the subject of such Event of Default or by a
trustee, fiduciary or agent for such Holders). If an Event of
Default specified in Section 5.1(h) or (i) occurs and is
continuing, then the principal of all the Senior Notes shall ipso
facto become and be immediately due and payable without any
declaration or other act on the part of the Trustee or any Holder.
At any time after such declaration of acceleration has been
made and before a judgment or decree for payment of the money due
has been obtained by the Trustee as hereinafter in this Article
provided, the Holders of a majority in aggregate principal amount
of the Outstanding Senior Notes, by written notice to the Issuer
and the Trustee, may rescind and annul such declaration and its
consequences if:
(a) the Issuer has paid or deposited with the Trustee a sum
sufficient to pay
(i) all amounts due the Trustee under Section 6.6
and the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel,
(ii) all overdue interest on all such Senior
Notes,
(iii) the principal of and premium, if any, on any
Senior Notes which have become due otherwise than by
such declaration of acceleration and interest thereon at
the rate borne by the Senior Notes, and
(iv) to the extent that payment of such interest
is lawful, interest upon overdue interest at the rate
borne by such Senior Notes; and
(b) all Events of Default, other than the non-payment of
principal of Senior Notes which have become due solely by such
declaration of acceleration, have been cured or waived as provided
in Section 5.13.
No such rescission shall affect any subsequent default or
impair any right consequent thereon as provided in Section 5.13.
Section 5.3. Collection of Indebtedness and Suits for
Enforcement by Trustee.
The Issuer and the Partnership covenants that if
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(a) default is made in the payment of any interest on any
Senior Note when such interest becomes due and payable and such
default continues for a period of 30 days, or
(b) default is made in the payment of the principal of or
premium, if any, on any Senior Note at the Stated Maturity
thereof,
the Issuer and the Partnership will, upon demand of the Trustee,
pay to it, for the benefit of the Holders of such Senior Notes,
the whole amount then due and payable on such Senior Notes for
principal and premium, if any, and interest, with interest upon
the overdue principal and premium, if any, and, to the extent that
payment of such interest shall be legally enforceable, upon
overdue installments of interest, at the rate borne by the Senior
Notes; and, in addition thereto, such further amount as shall be
sufficient to cover the costs and expenses of collection,
including the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel.
If the Issuer or the Partnership, as the case may be, fails
to pay such amounts forthwith upon such demand, the Trustee, in
its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and
unpaid and may prosecute such proceeding to judgment or final
decree, and may enforce the same against the Issuer, the
Partnership or any other obligor upon the Senior Notes and collect
the moneys adjudged or decreed to be payable in the manner
provided by law out of the property of the Issuer, the Partnership
or any other obligor upon the Senior Notes, wherever situated.
If an Event of Default occurs and is continuing, the Trustee
may in its discretion (i) proceed to protect and enforce its
rights and the rights of the Holders under this Indenture, the
Senior Guarantee or the Senior Note Mortgage (subject to the terms
thereof) by such appropriate private or judicial proceedings as
the Trustee shall deem most effectual to protect and enforce such
rights, including, without limitation, any rights or powers
conferred on the Trustee pursuant to the Senior Note Mortgage and
seeking recourse against the Partnership pursuant to the terms of
the Senior Guarantee, or (ii) to proceed to protect and enforce
the rights of the Trustee and the Holders of Senior Notes under
the Senior Note Mortgage by such appropriate private or judicial
proceedings as the Trustee shall deem most effectual to protect
and enforce any such rights, whether for the specific enforcement
of any covenant or agreement in the Senior Note Mortgage or in aid
of the exercise of any power granted therein, or to enforce any
other proper remedy, including, without limitation, seeking
recourse against the Partnership pursuant to the terms of the
Senior Guarantee, appointment of a receiver for the Collateral and
foreclosure, realization and sale of the Collateral pursuant to
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the terms of the Senior Note Mortgage. The Trustee shall be
entitled to sue and recover judgment as aforesaid or to sue to
enforce any Lien under the Senior Note Mortgage, in either case,
either before, after or during the pendency of any other
proceeding for the enforcement of any Lien under the Senior Note
Mortgage, and the right of the Trustee to recover such judgment
shall not be affected by any sale under the Senior Note Mortgage
or by the exercise of any right, power or remedy for the
enforcement of the provisions of the Senior Note Mortgage, or the
foreclosure or enforcement of any Lien of the Senior Note
Mortgage. No recovery of any such judgment upon any property of
the Issuer or the Partnership shall affect or impair the Lien on
the Collateral or any rights, powers or remedies of the Trustee or
the Holders.
Section 5.4. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment,
composition or other judicial proceeding relative to the Issuer,
the Partnership or any other obligor upon the Senior Notes or the
property of the Issuer, the Partnership or such other obligor, the
Trustee (irrespective of whether the principal of the Senior Notes
shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the Trustee
shall have made any demand on the Issuer for the payment of
overdue principal or interest) shall be entitled and empowered, by
intervention in such proceeding or otherwise:
(a) to file and prove a claim for the whole amount of
principal, and premium, if any, and interest owing and unpaid in
respect of the Senior Notes and to file such other papers or
documents as may be necessary or advisable in order to have the
claims of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel) and of the Holders allowed in such
judicial proceeding; and
(b) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the
same;
and any custodian, in any such judicial proceeding is hereby
authorized by each Holder to make such payments to the Trustee
and, in the event that the Trustee shall consent to the making of
such payments directly to the Holders, to pay the Trustee any
amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel,
and any other amounts due the Trustee under Section 6.6.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of
any Holder any plan of reorganization, arrangement, adjustment or
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composition affecting the Senior Notes or the rights of any Holder
thereof, or to authorize the Trustee to vote in respect of the
claim of any Holder in any such proceeding.
Section 5.5. Trustee May Enforce Claims Without Possession
of the Senior Notes.
All rights of action and claims under this Indenture or the
Senior Notes may be prosecuted and enforced by the Trustee without
the possession of any of the Senior Notes or the production
thereof in any proceeding relating thereto, and any such
proceeding instituted by the Trustee shall be brought in its own
name and as trustee of an express trust, and any recovery of
judgment shall, after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, be for the ratable benefit of the Holders
of the Senior Notes in respect of which such judgment has been
recovered.
Section 5.6. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article
shall be applied, subject to applicable law, in the following
order, at the date or dates fixed by the Trustee and, in case of
the distribution of such money on account of principal, premium,
if any, or interest, upon presentation of the Senior Notes and the
notation thereon of the payment if only partially paid and upon
surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 6.6;
SECOND: To the payment of the amounts then due and unpaid
upon the Senior Notes for principal, premium, if any, and
interest, in respect of which or for the benefit of which such
money has been collected, ratably, without preference or priority
of any kind, according to the amounts due and payable on such
Senior Notes for principal, premium, if any, and interest; and
THIRD: The balance, if any, to the Person or Persons entitled
thereto, including the Issuer.
Section 5.7. Limitation on Suits.
No Holder of any Senior Notes shall have any right to
institute any proceeding, judicial or otherwise, with respect to
this Indenture, or for the appointment of a receiver or trustee,
or for any other remedy hereunder, unless
(a) such Holder has previously given written notice to the
Trustee of a continuing Event of Default;
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(b) the Holders of not less than 25% in principal amount of
the Outstanding Senior Notes shall have made written request to
the Trustee to institute proceedings in respect of such Event of
Default in its own name as Trustee hereunder;
(c) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities
to be incurred in compliance with such request;
(d) the Trustee for 60 days after its receipt of such
notice, request and offer of indemnity has failed to institute any
such proceeding; and
(e) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the Holders
of a majority in principal amount of the Outstanding Senior Notes;
it being understood and intended that no one or more Holders shall
have any right in any manner whatever by virtue of, or by availing
of, any provision of this Indenture or the Senior Note Mortgage or
the Senior Guarantee to affect, disturb or prejudice the rights of
any other Holders, or to obtain or to seek to obtain priority or
preference over any other Holders or to enforce any right under
this Indenture, except in the manner provided in this Indenture,
the Senior Guarantee or the Senior Note Mortgage and for the equal
and ratable benefit of all of the Holders.
Section 5.8. Unconditional Right of Holders to Receive
Principal, Premium and Interest.
Notwithstanding any other provision in this Indenture, the
Holder of any Senior Note shall have the right on the terms stated
herein, which is absolute and unconditional, to receive payment of
the principal of, premium, if any, and (subject to Sections 3.1
and 3.7) interest on such Senior Note on the respective Stated
Maturities expressed in such Senior Note (or, in the case of
redemption, on the Redemption Date) and to institute suit for the
enforcement of any such payment, and such rights shall not be
impaired without the consent of such Holder.
Section 5.9. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture, the Senior
Guarantee or the Senior Note Mortgage and such proceeding has been
discontinued or abandoned for any reason, or has been determined
adversely to the Trustee or to such Holder, then and in every such
case the Issuer, the Partnership any other obligor under the
Senior Notes, the Trustee and the Holders shall, subject to any
determination in such proceeding, be restored severally and
respectively to their former positions hereunder, and thereafter
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all rights and remedies of the Trustee and the Holders shall
continue as though no such proceeding had been instituted.
Section 5.10. Rights and Remedies Cumulative.
Except as provided in Section 3.6, no right or remedy herein
conferred upon or reserved to the Trustee or to the Holders is
intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given
hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
Section 5.11. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any
Senior Note to exercise any right or remedy accruing upon any
Event of Default shall impair any such right or remedy or
constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this
Article or by law to the Trustee or to the Holders may be
exercised from time to time, and as often as may be deemed
expedient, by the Trustee or by the Holders, as the case may be.
Section 5.12. Control by Holders.
The Holders of a majority in principal amount of the
outstanding Senior Notes shall have the right to direct the time,
method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power
conferred on the Trustee hereunder or under the Senior Note
Mortgage, provided that
(a) such direction shall not be in conflict with any rule of
law or with this Indenture, the Senior Guarantee Mortgage or the
Senior Note Mortgage or expose the Trustee to personal liability;
and
(b) the Trustee may take any other action deemed proper by
the Trustee which is not inconsistent with such direction.
Section 5.13. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount
of the Outstanding Senior Notes may on behalf of the Holders of
all the Senior Notes waive any past Default hereunder and its
consequences, except a Default:
(a) in the payment of the principal of, premium, if any, or
interest on any Senior Note, or
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(b) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of
the Holder of each Outstanding Senior Note affected.
Upon any such waiver, such Default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have
been cured, for every purpose of this Indenture; but no such
waiver shall extend to any subsequent or other default or impair
any right consequent thereon.
Section 5.14. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any
Senior Note by his acceptance thereof shall be deemed to have
agreed, that any court may in its discretion require, in any suit
for the enforcement of any right or remedy under this Indenture or
the Senior Note Mortgage Documents, or in any suit against the
Trustee for any action taken, suffered or omitted by it as
Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court may
in its discretion assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in such suit, having
due regard to the merits and good faith of the claims or defenses
made by such party litigant; but the provisions of this
Section shall not apply to any suit instituted by the Trustee, to
any suit instituted by any Holder, or group of Holders, holding in
the aggregate more than 10% in principal amount of the Outstanding
Senior Notes, or to any suit instituted by any Holder for the
enforcement of the payment of the principal of, premium, if any,
or interest on any Senior Note on or after the respective Stated
Maturities expressed in such Senior Note (or, in the case of
redemption, on or after the Redemption Date).
Section 5.15. Waiver of Stay, Extension or Usury Laws.
Each of the Issuer, the Partnership and any other obligor
under the Senior Notes covenants (to the extent that it may
lawfully do so) that it will not at any time insist upon, or
plead, or in any manner whatsoever claim or take the benefit or
advantage of, any stay or extension law or any usury or other law
wherever enacted, now or at any time hereafter in force, which
would prohibit or forgive the Issuer, the Partnership or any such
obligor from paying all or any portion of the principal of,
premium, if any, or interest on the Senior Notes contemplated
herein or in the Senior Notes or which may affect the covenants or
the performance of this Indenture; and each of the Issuer, the
Partnership and any such obligor (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage
of any such law, and covenants that it will not hinder, delay or
impede the execution of any power herein granted to the Trustee,
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but will suffer and permit the execution of every such power as
though no such law had been enacted.
Section 5.16. Unconditional Right of Holders to Institute
Certain Suits.
Notwithstanding any other provision in this Indenture and any
other provision of any Senior Note, the right of any Holder of any
Senior Note to receive payment of the principal of, premium, if
any, and interest on such Senior Note on or after the respective
due dates expressed in such Senior Note, or to institute suit for
the enforcement of any such payment on or after such respective
dates, shall not be impaired or affected without the consent of
such Holder.
Section 5.17. Management of Casino-Hotel.
Notwithstanding any provision of this Article Five to the
contrary,
(a) following an Event of Default under the Senior Note
Mortgage and the exercise by the Trustee of any of its rights
under Section 3.9 thereof or other taking of possession of the
Collateral by the Trustee, the Trustee shall be authorized, in
addition to the rights and powers of the Trustee set forth
elsewhere in this Indenture and the Senior Note Mortgage, to
retain one or more experienced operators of hotels and/or casinos
to manage the Casino-Hotel on behalf of the Holders, provided that
any such operator shall have all necessary legal qualifications,
including all Permits, to manage the Casino-Hotel; and
(b) no Holder shall have any right to take possession of,
operate or manage all or any portion of, the Casino-Hotel,
individually or as a member of a group, unless such Holder shall
have all necessary legal qualifications, including all Permits, to
do so and shall otherwise be qualified to be retained to manage
the Casino-Hotel under Subsection (a) of this Section 5.17.
ARTICLE SIX
THE TRUSTEE
Section 6.1. Duties of Trustee and Notice of Defaults.
(a) Except during the continuance of an Event of Default,
(1) the Trustee undertakes to perform such duties and
only such duties as are specifically set forth in this
Indenture, the Senior Note Mortgage and the Senior Guarantee
Mortgage, and no implied covenants or obligations shall be
read into this Indenture against the Trustee; and
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(2) in the absence of bad faith on its part, the
Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed
therein, upon certificates therein, upon certificates or
opinions furnished to the Trustee and conforming to the
requirements to this Indenture or the Senior Note Mortgage or
the Senior Guarantee Mortgage; but in the case of any such
certificates or opinions which by any provision hereof are
specifically required to be furnished to the Trustee, the
Trustee shall be under a duty to examine the same to
determine whether or not they conform to the requirements of
this Indenture, the Senior Note Mortgage and the Senior
Guarantee Mortgage.
(b) In case of an Event of Default has occurred and is
continuing, the Trustee shall exercise such of the rights and
powers vested in it by this Indenture, and use the same degree of
care and skill in their exercise, as a prudent person would
exercise or use under the circumstances in the conduct of such
person's own affairs.
(c) No provision of this Indenture shall be construed to
relieve the Trustee from liability for its own negligent action,
its own negligent failure to act, or its own willful misconduct,
except that
(1) this Subsection (c) shall not be construed to limit
the effect of Subsection (a) of this Section 6.1;
(2) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless
it shall be proved that the Trustee was negligent in
ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of a majority in
aggregate principal amount of the Outstanding Senior Notes
relating to the time, method and place of conducting any
proceeding for any remedy available to Trustee, or exercising
any trust or power conferred upon the Trustee, under this
Indenture; and
(4) no provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur
any financial liability in the performance of any of its
duties hereunder, or in the exercise of any of its rights or
powers, if it shall have reasonable grounds for believing
that repayment of such funds or adequate indemnity against
such risk or liability is not reasonably assured to it.
(62)
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(d) Whether or not therein expressly so provided, every
provision of this Indenture relating to the conduct or affecting
the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section 6.1.
(e) Within 30 days after the occurrence of any Default, the
Trustee shall transmit by mail to all Holders, as their names and
addresses appear in the Senior Note Register, notice of such
Default hereunder known to the Trustee, unless such Default shall
have been cured or waived; provided, however, that, except in the
case of a Default in the payment of the principal of, premium, if
any, or interest on any Senior Note, the Trustee shall be
protected in withholding such notice if and so long as a trust
committee of Responsible Officers of the Trustee in good faith
determines that the withholding of such notice is in the interest
of the Holders; and provided, further, that in the case of any
Default of the character specified in Section 5.1(d) no such
notice to Holders shall be given until at least 15 days after the
occurrence thereof. The Trustee shall not be deemed to have
knowledge of any Default (other than a Default under
Section 5.1(a), (b) or (c) hereunder) unless and until the Trustee
shall have received notice of such Default.
Section 6.2. Certain Rights of Trustee.
Subject to the provisions of Section 315 of the Trust
Indenture Act:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence
of indebtedness or other paper or document believed by it to be
genuine and to have been signed or presented by the proper party
or parties;
(b) any request or direction of the Issuer mentioned herein
shall be sufficiently evidenced by an Issuer Request or Issuer
Order and any resolution of the Board of Directors may be
sufficiently evidenced by a Board Resolution;
(c) the Trustee may consult with counsel and any
advice of such counsel or any Opinion of Counsel shall be full
and complete authorization and protection in respect of any action
taken, suffered or omitted by it hereunder in good faith and in
reliance thereon in accordance with such advice or Opinion of
Counsel;
(d) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the
request or direction of any of the Holders pursuant to this
Indenture, unless such Holders shall have offered to the Trustee
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reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred therein or thereby in
compliance with such request or direction;
(e) the Trustee shall not be liable for any action taken or
omitted by it in good faith and believed by it to be authorized or
within the discretion, rights or powers conferred upon it by this
Indenture other than any liabilities arising out of the negligence
of the Trustee;
(f) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request,
direction, consent, order, approval, appraisal, bond, debenture,
note, coupon, security or other paper or document unless requested
in writing so to do by the Holders of not less than a majority in
aggregate principal amount of the Senior Notes then Outstanding;
provided that, if the payment within a reasonable time to the
Trustee of the costs, expenses or liabilities likely to be
incurred by it in the making of such investigation is, in the
opinion of the Trustee, not reasonably assured to the Trustee by
the security afforded to it by the terms of this Indenture, the
Trustee may require reasonable indemnity against such expenses or
liabilities as a condition to proceeding; the reasonable expenses
of every such investigation shall be paid by the Partnership or,
if paid by the Trustee or any predecessor Trustee, shall be repaid
by the Partnership upon demand; provided, further, the Trustee in
its discretion may make such further inquiry or investigation into
such facts or matters as it may deem fit, and, if the Trustee
shall determine to make such further inquiry or investigation, it
shall be entitled to examine the books, records and premises of
the Partnership, personally or by agent or attorney;
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be
responsible for any misconduct or negligence on the part of any
agent or attorney appointed with due care by it hereunder;
(h) no provision of this Indenture shall require the Trustee
to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in
the exercise of any of its rights or powers;
(i) the Trustee undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture, and
no implied covenants or obligations shall be read into this
Indenture against the Trustee; and
(j) in addition to and not in limitation of its other powers
hereunder, the Trustee shall have such power and authority as may
be necessary to enter into and accept delivery of any document as
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may be necessary to effect on behalf of the Holders of the Senior
Notes (1) the pari passu nature of the indebtedness and Liens in
respect of the Senior Notes to the Working Capital Facility and
the Liens securing the same, and (2) the subordination of the
indebtedness and Liens in respect of the Senior Notes to the
Midlantic Term Loan and the Liens securing the same, and upon
written request of the Company, the Trustee shall enter into such
agreements on behalf of the Holders.
Section 6.3. Trustee Not Responsible for Recitals,
Dispositions of Senior Notes or Application of Proceeds Thereof.
The recitals contained herein and in the Senior Notes, except
the Trustee's certificates of authentication, shall be taken as
the statements of the Issuer, and the Trustee assumes no
responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this
Indenture or of the Senior Notes, except that the Trustee
represents that it is duly authorized to execute and deliver this
Indenture, authenticate the Senior Notes and perform its
obligations hereunder and that the statements made by it in a
Statement of Eligibility and Qualification on Form T-1 to be
supplied to the Issuer will be true and accurate subject to the
qualifications set forth therein. The Trustee shall not be
accountable for the use or application by the Issuer of Senior
Notes or the proceeds thereof.
Section 6.4. Trustee and Agents May Hold Senior Notes;
Collections; Etc.
The Trustee, any Paying Agent, Senior Note Registrar or any
other agent of the Issuer, in its individual or any other
capacity, may become the owner or pledgee of Senior Notes, with
the same rights it would have if it were not the Trustee, Paying
Agent, Senior Note Registrar or such other agent and, subject to
Sections 310 and 311 of the Trust Indenture Act, may otherwise
deal with the Issuer and receive, collect, hold and retain
collections from the Issuer with the same rights it would have if
it were not the Trustee, Paying Agent, Senior Note Registrar or
such other agent.
Section 6.5. Money Held in Trust.
All moneys received by the Trustee shall, until used or
applied as herein provided, be held in trust for the purposes for
which they were received, but need not be segregated from other
funds except to the extent required by mandatory provisions of
law. Neither the Trustee nor any agent of the Issuer or the
Trustee shall be under any liability for interest on any moneys
received by it hereunder.
(65)
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Section 6.6. Compensation and Indemnification of Trustee and
Its Prior Claim.
The Issuer and the Partnership covenant and agree to pay to
the Trustee from time to time, and the Trustee shall be entitled
to, reasonable compensation for all services rendered by it
hereunder (which shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust) and
the Partnership covenants and agrees to pay or reimburse the
Trustee and each predecessor Trustee upon its request for all
reasonable expenses, disbursements and advances incurred or made
by or on behalf of it in accordance with any of the provisions of
this Indenture (including the reasonable compensation and the
expenses and disbursements of its counsel and of all agents and
other persons not regularly in its employ), except any such
expense, disbursement or advance as may arise from such Trustee's
negligence or bad faith. The Issuer and the Partnership also
covenant to indemnify the Trustee and each predecessor Trustee
for, and to hold it harmless against, any loss, liability, tax,
assessment or other governmental charge (other than taxes
applicable to the Trustee's compensation hereunder) or expense
incurred without negligence or bad faith on its part, arising out
of or in connection with the acceptance or administration of this
Indenture or the trusts hereunder and its duties hereunder
including enforcement of this Section 6.6 and also including any
liability which the Trustee may incur as a result of failure to
withhold, pay or report any tax, assessment or other governmental
charge, and the costs and expenses of defending itself against or
investigating any claim of liability in the premises. The
obligations of the Issuer and the Partnership under this
Section to compensate and indemnify the Trustee and each
predecessor Trustee and to pay or reimburse the Trustee and each
predecessor Trustee for expenses, disbursements and advances shall
constitute an additional obligation hereunder and shall survive
the satisfaction and discharge of this Indenture.
To secure the Issuer's and the Partnership's payment
obligations in this Section 6.6, the Trustee shall have a Lien
prior to the Senior Notes on all money and property held or
collected by the Trustee or any receiver Trustee, assignee,
liquidator, sequestrator, custodian or similar officer in
Trustee's stead except such money or property held in trust to pay
principal of (or premium, if any) and interest on particular
Senior Notes. Such Lien shall survive satisfaction and discharge
of this Indenture, and will be an additional obligation of the
Partnership hereunder.
(66)
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Section 6.7. Conflicting Interests.
(a) If the Trustee has or acquires any conflicting interest,
as defined in Section 310(b) of the Trust Indenture Act, it shall,
within ninety days after ascertaining that it has such conflicting
interest, either eliminate such conflicting interest or resign in
the manner and with the effect set forth in Section 6.9(b).
(b) In the event that the Trustee shall fail to comply with
the provisions of the preceding subsection (a) of this Section,
the Trustee shall, within ten days after the expiration of such
ninety day period, transmit notice of such failure to the Holders,
in the manner and to the extent provided in Section 7.3 with
respect to reports.
Section 6.8. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall
be a corporation organized and doing business under the laws of
the United States of America or of any state or territory or
District of Columbia, authorized under such laws to exercise
corporate trust powers, having a combined capital and surplus of
at least $100,000,000, subject to supervision or examination by
federal, state, territorial or District of Columbia supervising or
examining authority, and having a Corporate Trust Office in The
City of New York to the extent there is such an institution
eligible and willing to serve. If such corporation publishes
reports of condition at least annually, pursuant to law or to the
requirements of such supervising or examining authority, then for
the purposes of this Section, the combined capital and surplus of
such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so
published. If at any time the Trustee shall cease to be eligible
in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereinafter
specified in this Article.
Section 6.9. Resignation and Removal; Appointment of
Successor Trustee.
(a) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article shall
become effective until the acceptance of appointment by the
successor Trustee under Section 6.10.
(b) The Trustee, or any trustee or trustees hereafter
appointed, may at any time resign by giving written notice thereof
to the Issuer. Upon receiving such notice of resignation, the
Issuer shall promptly appoint a successor trustee by written
instrument executed by authority of the Board of Directors of the
Issuer, a copy of which shall be delivered to the resigning
Trustee and a copy to the successor trustee. If an instrument of
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acceptance by a successor Trustee shall not have been delivered to
the Trustee within 30 days after the giving of such notice of
resignation, the resigning Trustee may, or any Holder who has been
a bona fide Holder of a Senior Note for at least six months may,
on behalf of himself and all others similarly situated, petition
any court of competent jurisdiction for the appointment of a
successor Trustee. Such court may thereupon, after such notice,
if any, as it may deem proper, appoint a successor trustee.
(c) The Trustee may be removed at any time by an Act of the
Holders of a majority in principal amount of the then Outstanding
Senior Notes, delivered to the Trustee and to the Issuer.
(d) If at any time:
(1) the Trustee shall fail to comply with the
provisions of Section 6.7 after written request therefor by
the Issuer or by any Holder who has been a bona fide Holder
of a Senior Note for at least six months, or
(2) the Trustee shall cease to be eligible under
Section 6.8 hereof and shall fail to resign after written
request therefor by the Issuer or by any such Holder, or
(3) the Trustee shall become incapable of acting or
shall be adjudged a bankrupt or insolvent, or a receiver of
the Trustee or of its property shall be appointed or any
public officer shall take charge or control of the Trustee or
of its property or affairs for the purpose of rehabilitation,
conservation or liquidation, or
(4) the CCC determines that the Trustee is required to
be licensed or found qualified or suitable and the Trustee
does not become so licensed or found qualified or suitable
within such period as may be prescribed by the CCC,
then, in any such case, (i) the Issuer by a Board Resolution may
remove the Trustee, or (ii) subject to Section 5.14 hereof, the
Holder of any Senior Note who has been a bona fide Holder of a
Senior Note for at least six months may, on behalf of himself and
all others similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of
a successor Trustee. Such court may thereupon, after such notice,
if any, as it may deem proper and prescribe, remove the Trustee
and appoint a successor trustee.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of
Trustee for any cause, the Issuer, by a Board Resolution, shall
promptly, upon approval of the CCC, appoint a successor Trustee
which Trustee shall be licensed or found qualified or suitable
under the New Jersey Casino Control Act. If, within one year
(68)
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after such resignation, removal or incapability, or the occurrence
of such vacancy, a successor Trustee shall be appointed by Act of
the Holders of a majority in principal amount of the Outstanding
Senior Notes delivered to the Issuer, upon approval by the CCC and
the retiring Trustee, the successor Trustee so appointed shall,
forthwith upon its acceptance of such appointment, become the
successor Trustee and supersede the successor Trustee appointed by
the Issuer. If no successor Trustee shall have been so appointed
by the Issuer or the Holders of the Senior Notes and accepted
appointment in the manner hereinafter provided, the Holder of any
Senior Note who has been a bona fide Holder for at least six
months may, subject to Section 5.14 hereof, on behalf of himself
and all others similarly situated, petition any court of competent
jurisdiction for the appointment of a successor Trustee.
(f) The Issuer shall give notice of each resignation and
each removal of the Trustee and each appointment of a successor
Trustee by mailing written notice of such event by first-class
mail, postage prepaid, to the Holders of Senior Notes as their
names and addresses appear in the Senior Note Register. Each
notice shall include the name of the successor Trustee and the
address of its Corporate Trust Office.
Section 6.10. Acceptance of Appointment by Successor.
Every successor Trustee appointed hereunder shall execute,
acknowledge and deliver to the Issuer and to the retiring Trustee
an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become
effective and such successor Trustee, without any further act,
deed or conveyance, shall become vested with all the rights,
powers, trusts and duties of the retiring Trustee as if originally
named as Trustee hereunder; but, nevertheless, on the written
request of the Issuer or the successor Trustee, upon payment of
its charges then unpaid, such retiring Trustee shall pay over to
the successor Trustee all moneys at the time held by it hereunder
and shall execute and deliver an instrument transferring to such
successor Trustee all such rights, powers, duties and obligations.
Upon request of any such successor Trustee, the Issuer shall
execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Trustee all such
rights and powers. Any Trustee ceasing to act shall,
nevertheless, retain a prior claim upon all property or funds held
or collected by such Trustee to secure any amounts then due it
pursuant to the provisions of Section 6.6.
No successor Trustee with respect to the Senior Notes shall
accept appointment as provided in this Section 6.10 unless at the
time of such acceptance such successor Trustee shall be eligible
to act as Trustee under the provisions of Section 310(a) of the
Trust Indenture Act and shall have a combined capital and surplus
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of at least $100,000,000 and have a Corporate Trust Office in The
City of New York.
Upon acceptance of appointment by any successor Trustee as
provided in this Section 6.10, the Issuer shall give notice
thereof to the Holders of the Senior Notes, by mailing such notice
to such Holders at their addresses as they shall appear on the
Senior Note Register. If the acceptance of appointment is
substantially contemporaneous with the resignation, then the
notice called for by the preceding sentence may be combined with
the notice called for by Section 6.9. If the Issuer fails to give
such notice within 10 days after acceptance of appointment by the
successor Trustee, the successor Trustee shall cause such notice
to be given at the expense of the Issuer.
Section 6.11. Merger, Consolidation or Succession to
Business.
Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which
the Trustee shall be a party, or any corporation succeeding to all
or substantially all of the corporate trust business of the
Trustee, shall be the successor of the Trustee hereunder, provided
such corporation shall be eligible under Section 310(a) of the
Trust Indenture Act and shall have a combined capital and surplus
of at least $100,000,000 and have a Corporate Trust Office in the
City of New York, without the execution or filing of any paper or
any further act on the part of any of the parties hereto.
In case at the time such successor to the Trustee shall
succeed to the trusts created by this Indenture any of the Senior
Notes shall have been authenticated but not delivered, any such
successor to the Trustee may adopt the certificate of
authentication of any predecessor Trustee and deliver such Senior
Notes so authenticated; and, in case at that time any of the
Senior Notes shall not have been authenticated, any successor to
the Trustee may authenticate such Senior Notes either in the name
of any predecessor hereunder or in the name of the successor
Trustee; and in all such cases such certificate shall have the
full force which it is anywhere in the Senior Notes or in this
Indenture provided that the certificate of the Trustee shall have;
provided that the right to adopt the certificate of authentication
of any predecessor Trustee or to authenticate Senior Notes in the
name of any predecessor Trustee shall apply only to its successor
or successors by merger, conversion or consolidation.
(70)
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ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND ISSUER
Section 7.1. Issuer to Furnish Trustee Names and Addresses
of Holders.
The Issuer will furnish or cause to be furnished to the
Trustee:
(a) semiannually, not more than 10 days after each Regular
Record Date, a list, in such form as the Trustee may reasonably
require, of the names and addresses of the Holders as of such
Regular Record Date; and
(b) at such other times as the Trustee may request in
writing, within 30 days after receipt by the Issuer of any such
request, a list of similar form and content as of a date not more
than 15 days prior to the time such list is furnished;
provided, however, that if and so long as the Trustee shall be the
Senior Note Registrar, no such list need be furnished pursuant to
clause (a) or (b) of this Section 7.1.
Section 7.2. Disclosure of Names and Addresses of Holders.
Every Holder of Senior Notes, by receiving and holding the
same, agrees with the Issuer and the Trustee that neither the
Issuer nor the Trustee shall be held accountable by reason of the
disclosure of any information as to the names and addresses of the
Holders in accordance with the New Jersey Casino Control Act or
Section 312 of the Trust Indenture Act, regardless of the source
from which such information was derived, and that the Trustee
shall not be held accountable by reason of mailing any material
pursuant to a request made under Section 312 of the Trust
Indenture Act.
Section 7.3. Reports by Trustee.
(a) Within 60 days after May 15 of each year commencing with
May 15, 1994, the Trustee shall transmit by mail to all Holders,
as their names and addresses appear in the Senior Note Register,
as provided in Section 313(c) of the Trust Indenture Act, a brief
report dated as of such May 15 in accordance with and to the
extent required by Section 313(a) of the Trust Indenture Act.
(b) The Trustee will provide the CCC and the Director of the
NJDGE with:
(1) copies of all notices, reports and other written
communications which the Trustee gives to Holders;
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(2) a list of Holders promptly after the original
issuance of the Senior Notes and a list of Holders eight
months and two months prior to the expiration date of each
then-current gaming Permit held by the Partnership;
(3) notice of any Event of Default under this Indenture
or of any event, occurrence or condition which, with the
giving of notice or lapse of time or both would constitute an
Event of Default, any acceleration of the Indebtedness
evidenced or secured hereby, the institution of any legal
actions or proceedings before any court or governmental
authority in respect of this Indenture or the Senior Note
Mortgage, the entering into or taking possession of any
property constituting the Collateral and any rescission,
annulment or waiver in respect of an Event of Default;
(4) notice of the removal or resignation of the Trustee
within five Business Days thereof;
(5) notice of any transfer or assignment of rights
under this Indenture (but not in respect of the Senior Notes)
or the Senior Note Mortgage within five Business Days
thereof; and
(6) a copy of any amendment to the Senior Notes, this
Indenture (including the Senior Guarantee) or the Senior Note
Mortgage within five Business Days of the effectiveness
thereof.
The notice specified in clause (3) above shall be in writing and,
except as set forth below, shall be given within five Business
Days after the Trustee has transmitted the notice required by
Section 6.1. In the case of any notice in respect of any Event of
Default, such notice shall be accompanied by a copy of any notice
from the Holders, or a representative thereof or the Trustee, to
the defaulting Person and, if accompanied by any such notice to
the defaulting Person, shall be given simultaneously with the
giving of any such notice to the defaulting Person. In the case
of any legal actions or proceedings, such notice shall be
accompanied by a copy of the complaint or other initial pleading
or document.
The Trustee shall in accordance with the limitations set
forth herein cooperate with the CCC and the Director of NJDGE in
order to provide the CCC and said Director with information and
documentation relevant to compliance with clause (3) above and as
otherwise required by the New Jersey Casino Control Act.
The Partnership will advise the Trustee of the expiration
date of the then-current gaming Permit held by the Partnership at
least 90 days prior to the expiration thereof and the Trustee
until so advised may assume that such Permit has not expired.
(72)
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Section 7.4. Reports by the Issuer and the Partnership.
The Issuer and the Partnership shall:
(a) file with the Trustee, in accordance with Section 10.18
hereof within 15 days after the Issuer or the Partnership, as the
case may be, is required to file the same with the SEC, copies of
the annual reports and of the information, documents and other
reports (or copies of such portions of any of the foregoing as the
SEC may from time to time by rules and regulations prescribe)
which the Issuer or the Partnership, as the case may be, may be
required to file with the SEC pursuant to Section 13 or Section
15(d) of the Exchange Act; or, if the Issuer or the Partnership,
as the case may be, is not required to file information, documents
or reports pursuant to either of said Sections, then it shall file
with the Trustee and the SEC, in accordance with rules and
regulations prescribed from time to time by the SEC, such of the
supplementary and periodic information, documents and reports
which may be required pursuant to Section 13 of the Exchange Act
in respect of a security listed and registered on a national
securities exchange as may be prescribed from time to time in such
rules and regulations;
(b) file with the Trustee and the SEC, in accordance with
the rules and regulations prescribed from time to time by the SEC,
such additional information, documents and reports with respect to
compliance by the Issuer or the Partnership, as the case may be,
with the conditions and covenants of this Indenture as may be
required from time to time by such rules and regulations; and
(c) transmit by mail to all Holders, as their names and
addresses appear in the Senior Note Register, within 30 days after
the filing thereof with the Trustee, in the manner and to the
extent provided in Section 313(c) of the Trust Indenture Act, such
summaries of any information, documents and reports required to be
filed by the Issuer pursuant to Subsections (a) and (b) of this
Section as may be required by rules and regulations prescribed
from time to time by the SEC.
ARTICLE EIGHT
CONSOLIDATION, MERGER,
CONVEYANCE, TRANSFER OR LEASE
Section 8.1. The Issuer or the Partnership May Consolidate,
Merge, etc., Only on Certain Terms.
(a) The Partnership shall not consolidate with, merge with
or into any other Person or sell, assign, convey, transfer, lease
or otherwise dispose of all or substantially all of its properties
(73)
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and assets (as an entirety or substantially as an entirety in one
transaction or series of related transactions) to any other Person
or group of affiliated Persons or permit any of the Subsidiaries
to enter into any such transaction or transactions if such
transaction or transactions, in the aggregate, would result in a
transfer of all or substantially all of the assets of the
Partnership and the Subsidiaries on a consolidated basis to any
other Person or group of affiliated Persons, unless:
(i) either (a) the Partnership shall be the continuing
Person, or (b) the Person (if other than the Partnership)
formed by such consolidation or into which the Partnership is
merged or the Person which acquires by conveyance, transfer,
lease or disposition the properties and assets of the
Partnership (the "Surviving Entity") shall be a corporation
or partnership duly organized and validly existing under the
laws of the United States of America, any state thereof or
the District of Columbia and shall, in either case, expressly
assume, by an indenture supplemental to this Indenture,
executed and delivered to the Trustee, in form satisfactory
to the Trustee, the Senior Guarantee and the performance and
observance of every covenant of this Indenture and the Senior
Note Mortgage on the part of the Partnership to be performed
or observed and this Indenture and the Senior Note Mortgage
shall remain in full force and effect;
(ii) immediately after giving effect to such
transaction on a pro forma basis (and treating any
Indebtedness not previously an obligation of the Partnership
or a Subsidiary which becomes the obligation of the
Partnership or any of its Subsidiaries in connection with or
as a result of such transaction as having been incurred at
the time of such transaction), the Consolidated Net Worth of
the Partnership (or the Surviving Entity if the Partnership
is not the continuing obligor under this Indenture) is at
least equal to the Consolidated Net Worth of the Partnership
immediately prior to such transaction or series of
transactions;
(iii) immediately before and immediately after giving
effect to such transaction on a pro forma basis (and treating
any Indebtedness not previously an obligation of the
Partnership or a Subsidiary which becomes the obligation of
the Partnership or any of its Subsidiaries in connection with
or as a result of such transaction as having been incurred at
the time of such transaction), (A) no Default or Event of
Default, shall have occurred and be continuing and (B) the
Partnership (or the Surviving Entity if the Partnership is
not the continuing obligor under this Indenture) after giving
effect to such transaction, could incur $1.00 of additional
Indebtedness (other than Permitted Indebtedness), under the
provisions of Section 10.7;
(74)
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(iv) immediately after such transaction, the
Partnership or the Surviving Entity holds all Permits
required for operation of the business of, and such entity is
controlled by a Person or entity (or has retained a Person or
entity which is) experienced in, operating casino hotels or
otherwise holds all Permits (including from the CCC) to
operate its business; and
(v) in connection with any consolidation, merger,
transfer or lease contemplated hereby, the Partnership shall
deliver, or cause to be delivered, to the Trustee, in the
form and substance reasonably satisfactory to the Trustee, an
Officers' Certificate and an Opinion of Counsel, each stating
that such consolidation, merger, transfer or lease and the
supplemental indenture in respect thereto comply with the
provisions described herein and that (A) all conditions
precedent herein provided for relating to such transaction
have been complied with and (B) the transaction shall not
impair the Lien of the Senior Note Mortgage, this Indenture
and the Senior Notes and the rights and powers of the Trustee
and Holders thereunder.
(b) The Issuer shall not consolidate with or merge with or
into any other Person or sell, assign, convey, transfer, lease or
otherwise dispose of all or substantially all of its properties
and assets (as an entirety in one transaction or series of related
transactions) to any other Person or group of affiliated Persons
unless:
(i) either (1) the Issuer shall be the continuing
corporation or (2) the Person (if other than the Issuer)
formed by such consolidation, or into which the Issuer is
merged or the Person which acquires by sale, assignment,
conveyance, transfer, lease or disposition the properties and
assets of the Issuer (the "Surviving Entity") shall be a
corporation, partnership or trust organized and validly
existing under the laws of the United States of America, any
state thereof or the District of Columbia and shall, in
either case, expressly assume by an indenture supplemental
hereto, executed and delivered to the Trustee, in form
satisfactory to the Trustee, all the obligations of the
Issuer under the Senior Notes, this Indenture and the Senior
Note Mortgage;
(ii) immediately before and immediately after giving
effect to such transaction on a pro forma basis, no Default
or Event of Default shall have occurred and be continuing;
(iii) the Partnership shall have by supplemental
indenture confirmed that its obligations under the Guarantee
(75)
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and the Senior Note Mortgage shall apply to such Person's
obligations under this Indenture and the Senior Notes;
(iv) immediately after giving effect to such transaction
on a pro forma basis (and treating any Indebtedness not
previously an obligation of the Partnership or a Subsidiary
which becomes the obligation of the Partnership or any
Subsidiary in connection with or as a result of such
transaction as having been incurred at the time or such
transaction), the Consolidated Net Worth of the Issuer (or
the Surviving Entity if the Issuer is not the continuing
obligor under this Indenture) is at least equal to the
Consolidated Net Worth of the Issuer immediately prior to
such transaction or series of transactions;
(v) immediately before and immediately after giving
effect to such transaction on a pro forma basis (and treating
any Indebtedness not previously an obligation of the
Partnership or a Subsidiary which becomes the obligation of
the Partnership or any of its Subsidiaries in connection with
or as a result of such transaction as having been incurred at
the time of such transaction), the Partnership or its
successor, after giving effect to such transaction, could
incur at least $1.00 of additional Indebtedness (other than
Permitted Indebtedness), under the provisions of
Section 10.7;
(vi) immediately after such transaction, the Issuer or
the Surviving Entity holds all Permits required for the
operation of the business of the Issuer and immediately after
such transaction, the Partnership or its successor holds all
permits required for operation of the business of, and such
entity is controlled by a Person or entity (or has retained a
Person or entity which is) experienced in, operating casino
hotels or otherwise holds all Permits (including from the
CCC) to operate its business; and
(vii) the Issuer shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating
that such consolidation, merger, sale, assignment,
conveyance, transfer, lease or disposition and such
supplemental indenture comply with this Indenture, and that
(A) all conditions precedent herein relating to such
transaction have been complied with and (B) the transaction
shall not impair the lien and security of the Senior Note
Mortgage, this Indenture and the Senior Notes and the rights
and powers of the Trustee and Holders thereunder.
(76)
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Section 8.2. Successor Substituted.
Upon any consolidation or merger, or any sale, assignment,
conveyance, transfer or disposition of all or substantially all of
the properties and assets of the Issuer or the Partnership in
accordance with Section 8.1 (other than a lease), the successor
Person formed by such consolidation or into which the Issuer or
the Partnership, as the case may be, is merged or the successor
Person to which such sale, assignment, conveyance, transfer or
disposition is made shall succeed to, and be substituted for, and
may exercise every right and power of, the Issuer or the
Partnership, as the case may be, under this Indenture and/or the
Guarantee, as the case may be, and the Senior Note Mortgage with
the same effect as if such successor had been named as the Issuer
or the Partnership, as the case may be, herein and/or the
Guarantee, as the case may be; and thereafter, except in the case
of a lease, the Issuer or the Partnership, as the case may be,
shall be discharged from all obligations and covenants under this
Indenture, the Senior Notes and the Senior Note Mortgage
Documents, as the case may be.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 9.1. Supplemental Indentures and Agreements without
Consent of Holders.
Without the consent of any Holders, the Issuer and the
Partnership when authorized by a Board Resolution, and the
Trustee, at any time and from time to time, may enter into one or
more indentures supplemental hereto or agreements or other
instruments with respect to any Collateral, the Senior Guarantee,
the Senior Guarantee Mortgage, or the Senior Note Mortgage, in
form and substance satisfactory to the Trustee, for any of the
following purposes:
(a) to evidence the succession of another Person to the
Issuer or the Partnership and the assumption by any such successor
of the covenants of the Issuer or the Partnership herein and in
the Senior Notes, in the Senior Guarantee, the Senior Guarantee
Mortgage, and in the Senior Note Mortgage;
(b) to add to the covenants of the Issuer or the Partnership
for the benefit of the Holders, or to surrender any right or power
herein conferred upon the Issuer or the Partnership, as
applicable, herein or in the Senior Note Mortgage or the Senior
Guarantee;
(c) to cure any ambiguity, to correct or supplement any
provision herein which may be defective or inconsistent with any
(77)
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other provision herein, the Senior Note Mortgage Documents or the
Senior Guarantee, or to clarify any other provisions with respect
to matters or questions arising under this Indenture, the Senior
Note Mortgage Documents or the Senior Guarantee; provided that, in
each case, such provisions shall not adversely affect the
interests of the Holders;
(d) to comply with the requirements of the SEC in order to
effect or maintain the qualification of this Indenture under the
Trust Indenture Act, as contemplated by Section 9.5 or otherwise;
(e) to add a guarantor of the Indenture Obligations;
(f) to evidence and provide the acceptance of the
appointment of a successor Trustee hereunder;
(g) to mortgage, pledge, hypothecate or grant a security
interest in favor of the Trustee for the benefit of the Holders as
additional security for the payment and performance of the
Indenture Obligations, in any property or assets, including any
which are required to be mortgaged, pledged or hypothecated, or in
which a security interest is required to be granted to the Trustee
pursuant to this Indenture or the Senior Note Mortgage or
otherwise; or
(h) to enter into the agreements described in Section 6.2(j)
hereof.
The terms of any document entered into pursuant to this
Section shall be subject to prior approval, if required, of the
CCC and the NJDGE.
Section 9.2. Supplemental Indentures and Agreements with
Consent of Holders.
With the consent of the Holders of not less than a majority
in aggregate principal amount of the Outstanding Senior Notes, by
Act of said Holders delivered to the Issuer, the Partnership and
the Trustee, the Issuer and the Partnership when authorized by
Board Resolutions, and the Trustee may enter into an indenture or
indentures supplemental hereto or agreements or other instruments
with respect to the Collateral, the Senior Note Mortgage or the
Senior Guarantee in form and substance satisfactory to the Trustee
for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of this Indenture or
of modifying in any manner the rights of the Holders under this
Indenture, the Senior Notes, the Senior Guarantee, the Senior
Guarantee Mortgage, or the Senior Note Mortgage; provided,
however, that no such supplemental indenture, agreement or
instrument shall, without the consent of the Holder of each
Outstanding Senior Note affected thereby:
(78)
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(a) change the Stated Maturity of the principal of, or any
installment of interest on, any Senior Note or reduce the
principal amount thereof or the rate of interest thereon or any
premium payable upon the redemption thereof, or change the coin or
currency in which any Senior Note or any premium or the interest
thereon is payable, or impair the right to institute suit for the
enforcement of any such payment after the Stated Maturity thereof
(or, in the case of redemption, on or after the Redemption Date);
(b) modify the obligation of the Issuer and the Partnership
to make and consummate the Change of Control Offer under
Section 10.13 (or modify any of the provisions or definitions with
respect thereto in a manner which adversely affects the rights of
Holders);
(c) reduce the percentage in principal amount of the
Outstanding Senior Notes, the consent of whose Holders is required
for any such supplemental indenture or amendment to the Senior
Note Mortgage Documents, or the consent of whose Holders is
required for any waiver (of compliance with certain provisions of
this Indenture or certain Defaults hereunder and their
consequences) provided for in this Indenture, or with respect to
the Senior Guarantee or the Senior Note Mortgage Documents;
(d) modify any of the provisions of this Section or
Section 5.13 and 10.20, except to increase any such percentage or
to provide that certain other provisions of this Indenture or the
Senior Note Mortgage Documents cannot be modified or waived
without the consent of the Holder of each Senior Note affected
thereby; or
(e) except as otherwise permitted by Article Eight, consent
to the assignment or transfer by the Issuer or the Partnership of
any of its rights and obligations under this Indenture; or to the
release of any Collateral from the Liens created by the Senior
Note Mortgage Documents except in accordance with this Indenture
and the Senior Note Mortgage Documents.
Upon the written request of the Issuer and the Partnership
accompanied by a copy of a Board Resolution authorizing the
execution of any such supplemental indenture, and upon the filing
with the Trustee of evidence of the consent of Holders as
aforesaid, the Trustee shall join with the Issuer, the Partnership
and any other obligor under the Senior Notes in the execution of
such supplemental indenture.
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed
supplemental indenture, but it shall be sufficient if such Act
shall approve the substance thereof.
(79)
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The terms of any document entered into pursuant to this
Section shall be subject to prior approval, if required, of the
CCC and the NJDGE.
Section 9.3. Execution of Supplemental Indentures and
Agreements.
In executing, or accepting the additional trusts created by,
any supplemental indenture, agreement or instrument permitted by
this Article or the modifications thereby of the trusts created by
this Indenture, the Trustee shall be entitled to receive, and
shall be fully protected in relying upon, an Opinion of Counsel
and an Officers' Certificate stating that the execution of such
supplemental indenture, agreement or instrument is authorized or
permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture,
agreement or instrument which affects the Trustee's own rights,
duties or immunities under this Indenture, the Senior Guarantee,
the Senior Note Mortgage Documents or otherwise.
Section 9.4. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this
Article, this Indenture shall be modified in accordance therewith,
and such supplemental indenture shall form a part of this
Indenture for all purposes; and every Holder of Senior Notes
theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
Section 9.5. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this
Article shall conform to the requirements of the Trust Indenture
Act as then in effect.
Section 9.6. Reference in Senior Notes to Supplemental
Indentures.
Senior Notes authenticated and delivered after the execution
of any supplemental indenture pursuant to this Article may, and
shall if required by the Trustee, bear a notation in form approved
by the Trustee as to any matter provided for in such supplemental
indenture. If the Issuer shall so determine, new Senior Notes so
modified as to conform, in the opinion of the Trustee and the
Board of Directors, to any such supplemental indenture may be
prepared and executed by the Issuer, the Partnership and any other
obligor upon the Senior Notes and authenticated and delivered by
the Trustee in exchange for Outstanding Senior Notes.
(80)
<PAGE>
Section 9.7. Record Date.
The Issuer may, but shall not be obligated to, fix a record
date for the purpose of determining the Holders entitled to
consent to any supplemental indenture, agreement or instrument or
any waiver, and shall promptly notify the Trustee of any such
record date. If a record date is fixed those Persons who were
Holders at such record date (or their duly designated proxies),
and only those Persons, shall be entitled to consent to such
supplemental indenture, agreement or instrument or waiver or to
revoke any consent previously given, whether or not such Persons
continue to be Holders after such record date. The record date
shall be a date no more than 30 days prior to the first
solicitation of Holders generally in connection therewith and no
later than the date such solicitation is completed. No such
consent shall be valid or effective for more than 90 days after
such record date.
ARTICLE TEN
COVENANTS
Section 10.1. Payment of Principal, Premium and Interest.
The Issuer will duly and punctually pay the principal of,
premium, if any, and interest on the Senior Notes in accordance
with the terms of the Senior Notes and this Indenture.
Section 10.2. Maintenance of Office or Agency.
The Issuer will maintain in The City of New York, an office
or agency where Senior Notes may be presented or surrendered for
payment, where Senior Notes may be surrendered for registration of
transfer or exchange and where notices and demands to or upon the
Issuer in respect of the Senior Notes and this Indenture may be
served. The office of the Trustee at its Corporate Trust Office
shall be such office or agency of the Issuer, unless the Issuer
shall designate and maintain some other office or agency for one
or more of such purposes. The Issuer will give prompt written
notice to the Trustee of any change in the location of any such
office or agency. If at any time the Issuer shall fail to
maintain any such required office or agency or shall fail to
furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the
Corporate Trust Office, and the Issuer hereby appoints the Trustee
as its agent to receive all such presentations, surrenders,
notices and demands.
The Issuer may from time to time designate one or more other
offices or agencies (in or outside of The City of New York) where
the Senior Notes may be presented or surrendered for any or all
(81)
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such purposes, and may from time to time rescind such designation;
provided, however, that no such designation or rescission shall in
any manner relieve the Issuer of its obligation to maintain an
office or agency in The City of New York for such purposes. The
Issuer will give prompt written notice to the Trustee of any such
designation or rescission and any change in the location of any
such office or agency.
Section 10.3. Money for Senior Note Payments to be Held in
Trust.
If the Issuer shall at any time act as its own Paying Agent,
it will, on or before each due date of the principal of, premium,
if any, or interest on any of the Senior Notes, segregate and hold
in trust for the benefit of the Holders entitled thereto a sum
sufficient to pay the principal, premium, if any, or interest so
becoming due until such sums shall be paid to such Persons or
otherwise disposed of as herein provided, and will promptly notify
the Trustee of its action or failure so to act.
If the Issuer is not acting as Paying Agent, the Issuer will,
on or before each due date of the principal of, premium, if any,
or interest on, any Senior Notes, deposit with a Paying Agent a
sum in same day funds sufficient to pay the principal, premium, if
any, or interest so becoming due, such sum to be held in trust for
the benefit of the Persons entitled to such principal, premium or
interest, and (unless such Paying Agent is the Trustee) the Issuer
will promptly notify the Trustee of such action or any failure so
to act.
If the Issuer is not acting as Paying Agent, the Issuer will
cause each Paying Agent other than the Trustee to execute and
deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee, subject to the provisions of this
Section, that such Paying Agent will:
(a) hold all sums held by it for the payment of the
principal of, premium, if any, or interest on the Senior Notes in
trust for the benefit of the Persons entitled thereto until such
sums shall be paid to such Persons or otherwise disposed of as
herein provided;
(b) give the Trustee notice of any Default by the Issuer or
the Partnership (or any other obligor upon the Senior Notes) in
the making of any deposit of principal, premium, if any, or
interest;
(c) at any time during the continuance of any such default,
upon the written request of the Trustee, forthwith pay to the
Trustee all sums so held in trust by such Paying Agent; and
(82)
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(d) acknowledge, accept and agree to comply in all aspects
with the provisions of this Indenture relating to the duties,
rights and disabilities of such Paying Agent.
The Issuer may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other
purpose, pay, or by Issuer Order direct any Paying Agent to pay,
to the Trustee all sums held in trust by the Issuer or such Paying
Agent, as the case may be, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by
the Issuer or such Paying Agent; and, upon such payment by any
Paying Agent to the Trustee, such Paying Agent shall be released
from all further liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or
then held by the Issuer, in trust for the payment of the principal
of, premium, if any, or interest on any Senior Note and remaining
unclaimed for two years after such principal (and premium, if any)
or interest has become due and payable shall (if held by the
Trustee or any Paying Agent) be paid to the Issuer on Issuer
Request, and shall be discharged from such trust; and the Holder
of such Senior Note shall thereafter, as an unsecured general
creditor, look only to the Issuer for payment thereof, and all
liability of the Trustee or such Paying Agent with respect to such
trust money, and all liability of the Issuer as trustee thereof,
shall thereupon cease; provided, however, that the Trustee or such
Paying Agent, before being required to make any such repayment,
may at the expense of the Issuer cause to be published once, in
The New York Times and The Wall Street Journal (national edition),
notice that such money remains unclaimed and that, after a date
specified therein, which shall not be less than 30 days from the
date of such notification or publication, any unclaimed balance of
such money then remaining will be repaid to the Issuer.
Section 10.4. Issuer's and Partnership's Existence.
Subject to Article Eight, the Issuer and the Partnership will
do or cause to be done all things necessary to preserve and keep
in full force and effect the respective corporate or partnership
existence, rights (charter and statutory) and franchises of the
Issuer and the Partnership; provided, however, that the Issuer and
the Partnership shall not be required to preserve any such right
or franchise if the Board of Directors of the Issuer shall
determine that the preservation thereof is no longer desirable in
the conduct of the business of the Issuer and the Partnership and
that the loss thereof is not disadvantageous in any material
respect to the Holders.
(83)
<PAGE>
Section 10.5. Payment of Taxes and Other Claims.
The Issuer and the Partnership each will, and will cause the
Subsidiaries to, pay or discharge or cause to be paid or
discharged, before any fine, penalty, interest or cost may be
added for nonpayment, (a) all taxes, assessments and governmental
charges levied or imposed upon the Issuer, the Partnership or any
Subsidiary or upon the income, profits or property of the Issuer,
the Partnership or any Subsidiary and (b) all lawful claims for
labor, materials and supplies, which, if unpaid, might by law
become a lien upon the property of the Issuer, the Partnership or
any Subsidiary and shall otherwise comply with the Senior Note
Mortgage; provided, however, that neither the Issuer, the
Partnership nor any Subsidiary shall be required to pay or
discharge or cause to be paid or discharged any such tax,
assessment, charge or claim whose amount, applicability or
validity is being contested in good faith by appropriate
proceedings properly instituted and diligently conducted and in
respect of which appropriate reserves (in the good faith judgment
of management of the Issuer or the Partnership) are being
maintained in accordance with Generally Accepted Accounting
Principles consistently applied.
Section 10.6. Maintenance of Properties.
The Issuer and the Partnership will, and will cause the
Subsidiaries to, cause all properties owned by the Issuer, the
Partnership or any Subsidiary or used or held for use in the
conduct of the Issuer's or the Partnership's business or the
business of any Subsidiary to be maintained and kept in good
condition, repair and working order (excepting reasonable wear and
tear) and supplied with all necessary equipment and will cause to
be made all necessary repairs, renewals, replacements, betterments
and improvements thereof, all as in the judgment of the Issuer or
the Partnership may be necessary so that the business carried on
in connection therewith may be properly and advantageously
conducted at all times; provided, however, that nothing in this
Section shall prevent the Issuer or the Partnership from
discontinuing or allowing the discontinuance of the maintenance of
any of such properties if such discontinuance is, in the judgment
of the Issuer or the Partnership, desirable in the conduct of
their respective businesses or the business of any Subsidiary and
not disadvantageous in any material respect to the Holders.
Nothing in this Section 10.6 shall diminish the obligations of the
Issuer or the Partnership with respect to the Collateral as set
forth in the Senior Note Mortgage.
Section 10.7. Limitation on Partnership Indebtedness.
The Partnership will not, and will not permit any of the
Subsidiaries to, create, incur, assume, or directly or indirectly
guarantee or in any other manner become directly or indirectly
(84)
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liable for the payment of, any Indebtedness (including any
Acquired Indebtedness, but excluding Permitted Indebtedness)
unless, in the case of Indebtedness of the Partnership and
Acquired Indebtedness, (a) the Partnership's Consolidated Fixed
Charge Coverage Ratio for the four full fiscal quarters
immediately preceding such event, taken as one period (and after
giving pro forma effect to: (i) the incurrence of such
Indebtedness and (if applicable) the application of the net
proceeds therefrom, including to refinance other Indebtedness, as
if such Indebtedness were incurred and the application of such
proceeds occurred at the beginning of such four-quarter period;
(ii) the incurrence, repayment or retirement of any other
Indebtedness by the Partnership or the Subsidiaries since the
first day of such four-quarter period as if such Indebtedness were
incurred, repaid or retired at the beginning of such four-quarter
period (except that, in making such computation, the amount of
Indebtedness under any revolving credit facility shall be computed
based upon the average daily balance of such Indebtedness during
such four-quarter period); and (iii) the acquisition (whether by
purchase, merger or otherwise) or disposition (whether by sale,
merger or otherwise) of any company, entity or business acquired
or disposed of by the Partnership or the Subsidiaries, as the case
may be, since the first day of such four-quarter period, as if
such acquisition or disposition occurred at the beginning of such
four-quarter period), would have been at least equal to the ratios
set forth below for any such four-quarter period ending during the
fiscal years indicated below:
Fiscal Year Ratio
1993 and 1994 1.50 to 1
1995 and thereafter 1.75 to 1
and (b) except in the case of Permitted Indebtedness, Acquired
Indebtedness or Pari Passu Indebtedness, such Indebtedness
created, incurred, assumed or guaranteed pursuant to this
Section (i) has an Average Life to Stated Maturity that exceeds
the remaining Average Life to Stated Maturity of the Senior Notes
and (ii) has a Stated Maturity for its final scheduled principal
payment later than the Stated Maturity for the final scheduled
principal payment of the Senior Notes and (c) if such Indebtedness
created, incurred, assumed or guaranteed pursuant to this
Section is Pari Passu Indebtedness which is not Permitted
Indebtedness or Acquired Indebtedness, such Indebtedness shall
have (i) an Average Life to Stated Maturity no shorter than the
remaining Average Life to Stated Maturity of the Senior Notes and
(ii) a Stated Maturity for its final scheduled principal payment
that is not earlier than the Stated Maturity for the final
scheduled principal payment of the Senior Notes.
(85)
<PAGE>
Section 10.8. Limitation on Liens.
Neither the Issuer nor the Partnership will, nor will any
Subsidiary be permitted to, create, incur, assume or suffer to
exist any Liens upon any of their respective assets, except for
the Lien of the Senior Note Mortgage Documents and Permitted
Liens.
Section 10.9. Limitation on Restricted Payments.
(a) Neither the Issuer nor the Partnership will, nor will
any Subsidiary be permitted to, directly or indirectly:
(i) declare or make any distribution on the Issuer's
Capital Stock or the Partnership's Equity Interests, as the
case may be, (other than distributions payable in the
Issuer's Qualified Capital Stock or the Partnership's
Qualified Equity Interests or in options, warrants or other
rights to purchase such Qualified Capital Stock or Qualified
Equity Interests);
(ii) purchase, redeem or otherwise acquire or retire
for value any such Capital Stock or Equity Interests, or any
options, warrants or other rights to acquire such Capital
Stock or Equity Interests;
(iii) make any principal payment on or redeem,
repurchase, defease or otherwise acquire or retire for value
prior to any scheduled principal payment, scheduled sinking
fund payment or maturity, any Pari Passu Indebtedness (other
than Permitted Indebtedness) or Subordinated Indebtedness of
the Partnership other than pursuant to clause (a)(3) below;
or
(iv) incur, create, assume or suffer to exist any
guarantee (other than guarantees existing on the date of this
Indenture and any renewals, extensions, substitutions,
refinancings or replacements of such guarantees) of
Indebtedness of any Affiliate of the Partnership or the
Issuer;
(the foregoing actions set forth in clauses (i) through (iv) being
referred to as "Restricted Payments"), except that the Partnership
may apply up to 50% of its Excess Available Cash to make a
Restricted Payment if: at the time of such Restricted Payment and
after giving effect thereto, (1) no Default or Event of Default
shall have occurred and be continuing; (2) the Partnership's
Consolidated Fixed Charge Coverage Ratio for the four full fiscal
quarters immediately preceding the Restricted Payment, taken as
one period (after giving pro forma effect to the Restricted
Payment and (if applicable) the application of the net proceeds
therefrom and any events set forth in clauses (a)(ii) and (a)(iii)
(86)
<PAGE>
under Section 10.7) would have been at least equal to 1.75 to 1;
and (3) prior to making such Restricted Payment, the Issuer or the
Partnership shall have used an amount equal to such Restricted
Payment to purchase either Mortgage Notes or PIK Notes on the open
market or pursuant to a tender offer which purchase shall not be
deemed to be a Restricted Payment.
(b) Notwithstanding the foregoing, and so long as there is
no Default or Event of Default continuing, the foregoing
provisions will not prohibit:
(i) payments made pursuant to the terms of the Services
Agreement as in effect on the date hereof;
(ii) distributions on the Trump Priority Interest to
the extent permitted under the Amended Partnership Agreement
as in effect on the date hereof;
(iii) payment of an annual bonus to Donald J. Trump
that has been approved by a majority of the Noteholder
Representatives;
(iv) dividend payments within 60 days after declaration
if such payments would comply with the foregoing provision;
(v) the repurchase, redemption or other acquisition or
retirement of any shares of any class of Capital Stock of the
Issuer or Equity Interest of the Partnership in exchange for
(including any such exchange pursuant to the exercise of a
conversion right or privilege in connection with which cash
is paid in lieu of the issuance of fractional shares,
interests or scrip), or out of the Net Cash Proceeds of a
substantially concurrent issue and sale (other than to a
Subsidiary) of, other shares of Capital Stock of the Issuer
or Equity Interests of the Partnership, as the case may be
(other than Redeemable Capital Stock or Redeemable Equity
Interests, as the case may be);
(vi) (I) the redemption, repayment, defeasance,
repurchase or other acquisition or retirement for value of
any Subordinated Indebtedness or Pari Passu Indebtedness of
the Partnership (other than Redeemable Equity Interests) in
exchange for or out of the net cash proceeds of a
substantially current issue and sale of (A) new Indebtedness
of the Issuer or (B) Equity Interests of the Partnership
(other than Redeemable Equity Interests) or Capital Stock of
the Issuer (other than Redeemable Capital Stock), provided
that, with respect to clause (A), (1) the aggregate principal
amount of any such new Indebtedness does not exceed the
aggregate principal amount of such Subordinated or Pari Passu
Indebtedness (or, if such Subordinated or Pari Passu
Indebtedness provides for an amount less than the principal
(87)
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amount thereof to be due and payable upon a declaration of
acceleration thereof, then such lesser amount as of the date
of determination) plus accrued interest thereon plus the
amount of any premium or other payment required to be paid
under the terms of the instrument governing such Subordinated
or Pari Passu Indebtedness or the amount of any premium
reasonably determined by the Partnership as necessary to
accomplish such refinancing by means of a tender offer or
privately negotiated purchase and, in each case, actually
paid, plus the amount of expenses of the Partnership incurred
in connection with such refinancing, (2) if the Indebtedness
so redeemed, repaid, defeased, repurchased, acquired or
retired is Subordinated Indebtedness, any such new
Indebtedness (x) has an Average Life to Stated Maturity that
exceeds the Average Life to Stated Maturity of the Senior
Notes and a Stated Maturity that is not earlier than the
final Stated Maturity of the Senior Notes and (y) is
expressly subordinated in right of payment to the Senior
Guarantee at least to the same extent as the Subordinated
Indebtedness to be redeemed, repaid, defeased, repurchased,
acquired or retired and (3) if the Indebtedness so redeemed,
repaid, defeased, repurchased, acquired or retired is Pari
Passu Indebtedness, any such new Indebtedness has an Average
Life to Stated Maturity that is not less than the Average
Life to Stated Maturity of such Indebtedness and a Stated
Maturity that is not earlier than the final Stated Maturity
of such Indebtedness; or (II) the redemption, repayment,
defeasance, repurchase or other acquisition or retirement for
value of any Redeemable Equity Interests of the Partnership
through the issuance of new shares of Redeemable Equity
Interests of the Partnership, provided that any such new
Redeemable Equity Interests (1) do not have a maturity or are
otherwise redeemable at the option of the holder prior to the
Stated Maturity of the Senior Notes and (2) are expressly
subordinated in right of payment to the Senior Guarantee at
least to the same extent as Redeemable Equity Interests to be
redeemed, repurchased or otherwise acquired or retired for
value;
(vii) the redemption of any share of any class of
Capital Stock of the Issuer or any Equity Interest of the
Partnership or Indebtedness of the Partnership or the
Company, if (A) the holder thereof delivers an Opinion of
Counsel to the Trustee that failure to so redeem would
subject the holder thereof to an adverse action by a Gaming
Authority (or, if applicable, a failure to act by a Gaming
Authority that is adverse to the holder) and (B) the Board of
Directors of the Partnership determines (as evidenced by a
Board Resolution delivered to the Trustee) that such adverse
action (or, if applicable, such failure to act) would be
likely to have a material adverse effect on such holder;
(88)
<PAGE>
(viii) (A) distributions or intercompany loans to the
Issuer by the Partnership to pay interest in cash on the
Outstanding Mortgage Notes in accordance with the terms
thereof, (B) distributions or intercompany loans of up to 50%
of the Partnership's Excess Available Cash to the Issuer by
the Partnership to purchase, redeem or otherwise acquire
Outstanding PIK Notes in accordance with the terms thereof,
provided that the Partnership's Consolidated Fixed Charge
Coverage Ratio for the four full fiscal quarters immediately
preceding the Restricted Payment, taken as one period (after
giving pro forma effect to the Restricted Payment and (if
applicable) the application of the net proceeds therefrom and
any events set forth in clauses (a)(ii) and (a)(iii) of
Section 10.7 above) would have been at least equal to 1.50 to
1, (C) distributions or intercompany loans to the Issuer by
the Partnership to pay interest in cash on the Outstanding
PIK Notes in accordance with the terms thereof, provided that
the condition described in Clause (a) in Section 10.7 is at
that time satisfied and (D) distributions or intercompany
loans to the Issuer by the Partnership to pay any tax
liability of the Issuer resulting from any distribution or
intercompany loan made in compliance with (A), (B) or (C)
above;
(ix) distributions or intercompany loans by the
Partnership, pursuant to the Partnership Agreement as in
effect on the date of this Indenture, to pay (a) reasonable
general and administrative expenses, including directors'
fees and premiums for directors' and officers' liability
insurance of any corporate partners and (b) to make
indemnification payments as required by the Certificate of
Incorporation of the Issuer or TC/GP, Inc. or the Partnership
Agreement, each as in effect on the date hereof; and (c) to
make distributions by the Partnership, pursuant to the
Partnership Agreement, to Partners in amounts in respect of
any tax year of the Partnership which do not exceed the
Partners' tax liability in respect of the Partnership's
income for such year computed as if the Partners were each
taxpayers deriving items of income, gain, loss or deduction
only from thte Partnership for such year and by applying the
sum of the higher of (x) the highest federal income tax rate
imposed on individuals for such year or (y) the highest
federal income tax rate imposed on corporations for such
year, plus (z) in either case, eight percent (8%) as the rate
applicable to such year's results;
(x) guarantees by the Partnership of Indebtedness of
any special purpose financing Affiliate of the Partnership,
if the incurrence of such guarantee is made in accordance
with Section 10.7 hereof and the net proceeds of any such
Indebtedness are provided to the Partnership; and
(89)
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(xi) distribution by the Partnership to Trump of the
Common Stock of TC/GP as contemplated in the Prospectus; and
(xii) the purchase, redemption or other acquisition of
securities representing an aggregate of 0.5% common equity
interest in the Partnership pursuant to the terms of the
Litigation Warrants and any distribution or advance by the
Partnership to TC/GP, Inc., as the survivor of the merger of
Trump's Castle Holding, Inc. with Tc/GP, Inc. to fund the
payment of statutory appraisal rights perfected in connection
with such merger.
Section 10.10. Limitation on Partnership Leases.
The Partnership will not, and will not permit any of the
Subsidiaries to, lease as tenant or subtenant real or personal
property (except Permitted Leases), unless the Partnership's
Consolidated Fixed Charge Coverage Ratio for the four full fiscal
quarters immediately preceding such event, taken as one period
(and after giving pro forma effect to any such lease as if such
lease was entered into at the beginning of such four-quarter
period and any events set forth in clauses (a)(ii) and (a)(iii) of
Section 10.7), would have been at least equal to the ratios set
forth below for any such four-quarter period ending during the
fiscal years indicated below:
Fiscal Year Ratio
1993 and 1994 1.50 to 1
1995 and thereafter 1.75 to 1.
In giving effect to the lease as of such four full fiscal
quarters, it will be assumed that the rent for such prior four
fiscal quarters was the greater of the (i) average rent over the
term of such lease and (ii) rent payable for the first four fiscal
quarters.
Section 10.11. Limitation on Preferred Stock of Subsidiaries
and Subsidiary Distributions.
(a) The Partnership will not permit any of the Subsidiaries
to, directly or indirectly, issue or sell any Preferred Stock
(except to the Partnership or a Wholly-owned Subsidiary thereof).
(b) The Partnership will not permit any of the Subsidiaries
to, directly or indirectly, (i) declare or pay any dividend or
make any distribution on the Capital Stock of such Subsidiary or
to the holders of such Subsidiary's Capital Stock (other than
dividends or distributions payable in Capital Stock of such
Subsidiary) or (ii) purchase, redeem or otherwise acquire or
retire for value any such Capital Stock; provided that this
covenant shall not prevent the payment by any Subsidiary of
dividends or other distributions to the Partnership or a
Wholly-owned Subsidiary or the redemption or repurchase by any
Subsidiary of any of its Capital Stock owned by the Partnership or
a Wholly-owned Subsidiary.
(90)
<PAGE>
Section 10.12. Limitation on Payment Restrictions Affecting
Subsidiaries.
The Partnership will not, nor will any of the Subsidiaries be
permitted to, create or otherwise cause or suffer to exist or
become effective any consensual encumbrance or restriction of any
kind on the ability of the Partnership or such Subsidiary to (a)
pay dividends or make any other distributions on the Partnership's
Equity Interests or such Subsidiary's Capital Stock or pay any
Indebtedness owed to the Partnership or any other Subsidiary, (b)
make any loans or advances to the Partnership or any other
Subsidiary or (c) transfer any of its property or assets to the
Partnership or any other Wholly-owned Subsidiary, except (i) any
restrictions, with respect to a Subsidiary that is not a
Subsidiary on the date of this Indenture, in existence at the time
such Person becomes a Subsidiary of the Partnership (but not
created in contemplation of such Person becoming a Subsidiary),
(ii) any restrictions with respect to a Subsidiary imposed
pursuant to an agreement which has been entered into for the sale
or disposition of all or substantially all of the Capital Stock or
assets of such Subsidiary, (iii) any encumbrance or restriction
pursuant to an agreement in effect at or entered into on the date
of this Indenture, and (iv) any restrictions existing under any
agreement which refinances or replaces the agreements containing
the restrictions in clauses (i), (ii) and (iii), provided that the
terms and conditions of any such agreement are no less favorable
to holders of the Senior Notes than those under or pursuant to the
agreement evidencing the Indebtedness refinanced.
Section 10.13. Purchase of Senior Notes upon Change of
Control.
(a) If a Change of Control shall occur at any time, then
each Holder shall have the right to require that the Issuer or the
Partnership repurchase such Holder's Senior Notes in whole or in
part in integral multiples of $1,000, at a purchase price (the
"Change of Control Purchase Price") in cash in an amount equal to
101% of the principal amount thereof, plus accrued and unpaid
interest (including any Defaulted Interest), if any, to the date
of purchase, pursuant to the offer described in the following
paragraph (the "Change of Control Offer") and the other procedures
set forth in this Section.
(b) Within 30 days following any Change of Control, the
Issuer or the Partnership shall send by first-class mail, postage
prepaid, to the Trustee and to each Holder, at his address
appearing in the Senior Note Register, a notice stating:
(1) that a Change of Control has occurred and that such
Holder has the right to require the Issuer or the Partnership
(91)
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to repurchase such Holder's Senior Notes at the Change of
Control Purchase Price;
(2) the circumstances and relevant facts regarding such
Change of Control (including but not limited to information
with respect to pro forma historical income, cash flow and
capitalization after giving effect to such Change of
Control);
(3) the purchase date (the "Change of Control Purchase
Date") which shall be a Business Day no earlier than 45 days
nor later than 60 days from the date such notice is mailed
(subject to applicable law);
(4) the Change of Control Purchase Price;
(5) that any Senior Note not tendered will continue to
accrue interest;
(6) that, unless the Issuer or the Partnership defaults
in payment of the Change of Control Purchase Price, any
Senior Notes accepted for payment pursuant to the Change of
Control Offer shall cease to accrue interest after the Change
of Control Purchase Date; and
(7) the instructions such Holder must follow in order
to have its Senior Notes repurchased (and the instructions it
must follow to withdraw its election to have such Senior
Notes repurchased) in accordance with paragraph (c) of this
Section.
Notwithstanding the foregoing, within 20 days following any Change
of Control, the Issuer shall notify the Trustee that a Change of
Control has occurred.
(c) Holders electing to have Senior Notes purchased will be
required to surrender such Senior Notes to the Paying Agent at the
address specified in the notice at least two Business Days prior
to the Change of Control Purchase Date. Subject to applicable
law, Holders will be entitled to withdraw their election if the
Paying Agent receives, not later than two Business Days prior to
the Change of Control Purchase Date, a telegram, telex, facsimile
transmission or letter setting forth the name of the Holder, the
principal amount and serial numbers of the Senior Notes delivered
for purchase by the Holder as to which its election is to be
withdrawn and a statement that such Holder is withdrawing his
election to have such Senior Notes purchased. Holders whose
Senior Notes are purchased only in part will be issued new Senior
Notes equal in principal amount to the unpurchased portion of the
Senior Notes surrendered.
(92)
<PAGE>
(d) Not later than the Change of Control Purchase Date, the
Issuer or the Partnership, as the case may be, shall (i) accept
for payment Senior Notes or portions thereof tendered pursuant to
the Change of Control Offer, (ii) deposit with the Paying Agent
money sufficient, in immediately available funds by 12:00 noon
(New York City Time), to pay the purchase price of all Senior
Notes or portions thereof so tendered and (iii) deliver to the
Paying Agent an Officers' Certificate stating the Senior Notes or
portions thereof accepted for payment by the Issuer or the
Partnership. The Paying Agent shall promptly mail or release to
Holders of Senior Notes so accepted payment in an amount equal to
the Change of Control Purchase Price of the Senior Notes purchased
from each such Holder, and the Issuer shall execute and the
Trustee shall promptly authenticate and mail or release to such
Holders a new Senior Note equal in principal amount to any
unpurchased portion of the Senior Note surrendered. The Issuer or
the Partnership, as the case may be, will publicly announce the
results of the Change of Control Offer on the Change in Control
Purchase Date. For purposes of this Section 10.13, the Issuer
shall choose a Paying Agent which shall not be the Issuer or the
Partnership.
(e) The Issuer and the Partnership will not, and will not
permit any Subsidiary to, create or permit to exist or become
effective any restriction (other than restrictions existing under
Indebtedness as in effect on the date of this Indenture) that
would materially impair the ability of the Issuer or the
Partnership to make a Change of Control Offer to purchase the
Senior Notes or, if such Change of Control offer is made, to pay
for the Senior Notes tendered for purchase.
Section 10.14. Limitations on Transactions with Affiliates.
Neither the nor the Partnership Issuer will, nor will any of
the Subsidiaries be permitted to, directly or indirectly, enter
into or suffer to exist any transaction or series of related
transactions (including, without limitation, the sale, purchase,
exchange or lease of assets, property or services) with any
Affiliate of the Issuer or the Partnership (other than a
Wholly-owned Subsidiary) unless (a) such transaction or series of
related transactions is on terms that are no less favorable to the
Issuer, the Partnership or such Subsidiary, as the case may be,
than would be available at the time of such transaction or
transactions in a comparable transaction in arm's-length dealings
with an unaffiliated third party and with respect to a transaction
or series of related transactions involving aggregate payments
equal to or greater than $5,000,000, such transaction or series of
related transactions is approved by a majority of the Noteholder
Representatives and (b) the Issuer or the Partnership, as the case
may be, delivers an Officers' Certificate to the Trustee
certifying that such transaction or transactions comply with
clause (a) above. The foregoing restriction will not apply to (1)
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the operations under the Services Agreement as in effect on the
date of this Indenture, (2) the payment of compensation to the
senior executive officers of the Issuer (excluding Donald J.
Trump) which has been approved by a majority of the Noteholder
Representatives, (3) the payment of an annual bonus to Donald J.
Trump which has been approved by a majority of the Noteholder
Representatives, (4) the payment of director fees (other than to
Donald J. Trump) not in excess of those in effect as of the date
of this Indenture, (5) payments made pursuant to the Partnership
Agreement as in effect on the date of this Indenture, (6) payments
pursuant to the Senior Partnership Note or with respect to any
Subordinated Indebtedness, and (7) Restricted Payments otherwise
permitted pursuant to the provisions of Section 10.9.
Section 10.15. Restriction on Transfer of Assets.
The Partnership will not sell, convey, transfer, lease or
otherwise dispose of its assets or property to any of the
Subsidiaries.
Section 10.16. Limitation on Activities and Investments.
Neither the Partnership nor any of the Subsidiaries will
engage in any business or investment activities other than those
necessary or appropriate for, incident to, in connection with or
arising out of, developing, financing, owning and operating the
Casino-Hotel.
The Partnership will not, and will not permit any Subsidiary
to, make any investment other than a Permitted Investment.
The Issuer will not conduct any business (including having
any Subsidiary) whatsoever, other than (i) to collect the amounts
due and owing under the Senior Partnership Note and any
Subordinated Indebtedness, (ii) to preserve its rights under the
Senior Partnership Note, the Partnership Note and any Subordinated
Indebtedness and (iii) to do or cause to be done all things
necessary or appropriate to protect the property included in the
Lien of the Senior Note Mortgage and any further security and to
preserve its rights therein and otherwise to comply with its
obligations under this Indenture, the Senior Notes, the Mortgage
Notes, the Mortgage Note Indenture, the PIK Note Indenture and the
PIK Notes.
The Issuer will not incur or otherwise become liable for any
Indebtedness (other than (v) Indebtedness with respect to the
Midlantic Term Loan, (w) the Senior Notes and renewal, extension,
substitution, refunding, refinancing or replacement thereof in
accordance with this Indenture, (x) the Mortgage Notes and any
renewal, extension, substitution, refunding, refinancing, or
replacement thereof in accordance with this Indenture and the
Mortgage Note Indenture (y) the PIK Notes including any PIK Notes
issued as payment of interest, and any renewal, extension,<PAGE>
(94)
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substitution, refunding, refinancing or replacement thereof in
accordance with the PIK Note Indenture, and (z) any intercompany
loan from the Partnership) nor issue any Preferred Stock.
Section 10.17. Restriction on Payment of Services Fee.
The Issuer and the Partnership will not, and will not permit
the Subsidiaries to, pay any Services Fee under the Services
Agreement or to pay or reimburse any expenses relating thereto if
a Default or Event of Default has occurred and is continuing. The
terms of the Services Agreement cannot be amended to increase the
amounts to be paid thereunder in the aggregate or on any
particular date, or in any other manner which would be adverse to
the Partnership, and the Partnership will not, and will not permit
the Subsidiaries to, enter into any management or consulting
agreement with any Affiliate relating to the Casino Hotel other
than the Services Agreement.
Section 10.18. Provision of Financial Statements.
Whether or not the Issuer or the Partnership is subject to
Section 13(a) or 15(d) of the Exchange Act, the Issuer and the
Partnership will, to the extent permitted under the Exchange Act,
file with the SEC the annual reports, quarterly reports and other
documents which the Issuer or the Partnership would have been
required to file with the SEC pursuant to such Section 13(a) or
15(d) if the Issuer or the Partnership were so subject, such
documents to be filed with the SEC on or prior to the respective
dates (the "Required Filing Dates") by which the Issuer or the
Partnership would have been required so to file such documents if
the Issuer or the Partnership were so subject. The Issuer or the
Partnership will also in any event (x) within 15 days of each
Required Filing Date (i) transmit by mail to all Holders, as their
names and addresses appear in the Senior Note Register, without
cost to such Holders and (ii) file with the Trustee copies of the
annual reports, quarterly reports and other documents which the
Issuer or the Partnership would have been required to file with
the SEC pursuant to Section 13(a) or 15(d) of the Exchange Act if
the Issuer or the Partnership were subject to such Sections and
(y) if filing such documents by the Issuer or the Partnership with
the SEC is not permitted under the Exchange Act, promptly upon
written request, supply copies of such documents to a prospective
holder of the Senior Notes at the Issuer's cost.
Section 10.19. Statement by Officers as to Default.
(a) The Issuer will deliver to the Trustee, on or before a
date not more than 60 days after the end of each fiscal quarter
and not more than 120 days after the end of each fiscal year of
the Issuer ending after the date hereof, a written statement
signed by the President or a Vice President, and by the Treasurer,
an Assistant Treasurer, the Comptroller, an Assistant Comptroller,
(95)
<PAGE>
the Secretary or an Assistant Secretary of the Issuer, and in any
event at least one person signing such certificate shall be the
principal executive officer, principal financial officer or
principal accounting officer of the Issuer, setting forth the
Consolidated Net Worth of the Issuer as of the end of such fiscal
quarter and stating whether or not, after a review under each
signer's supervision of the activities of the Issuer during such
year and of the Issuer's performance under this Indenture, to the
best knowledge, based on such review, of the signers thereof, the
Issuer has fulfilled all its obligations under this Indenture
throughout such year, and, if there has been a Default specifying
each Default and the nature and status thereof.
(b) When any Default or Event of Default has occurred and is
continuing, or if the Trustee or any Holder or the trustee for or
the holder of any other evidence of Indebtedness of the Issuer or
any Subsidiary gives any notice or takes any other action with
respect to a claimed default (other than with respect to
Indebtedness (other than any Mortgage Debt) in the principal
amount of less than $10,000,000), the Issuer shall deliver to the
Trustee by registered or certified mail or by telegram, telex or
facsimile transmission followed by hard copy an Officers'
Certificate specifying such event, notice or other action within
five Business Days of its occurrence.
Section 10.20. Waiver of Certain Covenants.
The Issuer and the Partnership may omit in any particular
instance to comply with any covenant or condition set forth in
Sections 8.1(a)(ii) and (iii)(B) or Sections 10.5 through 10.12,
Sections 10.14, 10.15, 10.17, 10.19 and 10.21, if, before or after
the time for such compliance, the Holders of not less than a
majority in aggregate principal amount of the then Outstanding
Senior Notes shall, by Act of such Holders, waive such compliance
in such instance with such covenant or condition, but no such
waiver shall extend to or affect such covenant or condition except
to the extent so expressly waived, and, until such waiver shall
become effective, the obligations of the Company and the
Partnership and the duties of the Trustee in respect of any such
covenant or condition shall remain in full force and effect.
Section 10.21. Redemption of Certain Gaming Chips.
Neither the Issuer nor the Partnership nor any Subsidiary
shall redeem any of the casino table games gaming chips issued to
Fred C. Trump in the amount of $3,500,000 in December, 1990, (of
which $2,500,000 remains on the date hereof) except as provided
below in this Section 10.20:
(a) so long as there shall exist no Event of Default
under Sections 5.01(a), 5.01(b) or 5.01(c), the Issuer or the
<PAGE>
(96)
<PAGE>
Partnership may redeem up to an aggregate of $1,000,000 of such
chips during the last four calendar months of 1993;
(b) so long as there shall exist no such Event of
Default, the Issuer or the Partnership may redeem all such
chips at any time after the Issuer shall have achieved EBITDA
for any period of four consecutive fiscal quarters in an
amount not less than $45,000,000; and
(c) so long as there shall exist no Event of Default,
the Issuer or the Partnership may redeem all such chips at
any time if approved by a unanimous vote of the Board of
Partner Representatives of the Issuer with the unanimous
consent of the Bondholder Representatives.
Such redemptions shall be made without interest.
ARTICLE ELEVEN
REDEMPTION OF SENIOR NOTES
Section 11.1. Senior Notes Redeemed Pursuant to Casino
Control Act.
Notwithstanding any provisions of this Article Eleven to the
contrary, if the CCC does not waive the qualification requirements
as to any Holder (whether the record owner or beneficial owner)
and requires that such Holder be qualified under the New Jersey
Casino Control Act, then, in such event, such Holder must qualify
under such Act. If such Holder does not so qualify, such Holder
must dispose of its interest in the Senior Notes, within 30 days
after the Partnership's receipt of notice of such finding (or
within such earlier date as the CCC may require), or the Issuer or
the Partnership may redeem such Senior Notes at the lower of the
Outstanding Amount and the Fair Market Value (as certified to the
Trustee) of such Senior Notes.
Section 11.2. Sinking Fund.
The Senior Notes shall be redeemed in part on June 1, 1998
and June 1, 1999 (each a "Sinking Fund Payment Date") through the
operation of the sinking fund as set forth in this Section 11.2 at
the Sinking Fund Redemption Price. For purposes of this
Section 11.2, "Sinking Fund Redemption Price" shall mean 100% of
the principal amount of the Senior Notes to be redeemed plus
interest accrued and unpaid thereon to the date fixed for
redemption. So long as any Senior Notes remain outstanding and
unpaid, the Issuer or the Partnership will pay to the Trustee in
cash the amount of $4,050,000 on or before the May 31 prior to
each Sinking Fund Payment Date. The obligation of the Issuer or
the Partnership to make payments to the Trustee pursuant to the
immediately preceding sentence of this Section 11.2 shall be<PAGE>
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reduced, at the option of the Issuer or the Partnership, by an
amount equal to the aggregate principal amount of Senior Notes
acquired by the Partnership or the Issuer and surrendered to the
Trustee for cancellation and by the aggregate principal amount of
Senior Notes redeemed or called for redemption otherwise than
through the operation of the sinking fund that have not previously
been so credited for such purpose by the Trustee.
The Issuer's or the Partnership's sinking fund payment shall
be applied by the Trustee on the next Sinking Fund Payment Date to
the redemption of Senior Notes at the Sinking fund Redemption
Price. The Trustee shall select, in the manner provided in
Section 11.6, for redemption on each Sinking Fund Payment Date a
sufficient principal amount of Senior Notes to absorb said cash,
as nearly as may be, and shall, at the expense and in the name of
the Issuer or the Partnership, thereupon cause notice of
redemption of the Senior Notes to be given in substantially the
manner and with the effect therein provided or the redemption of
Senior Notes.
Section 11.3. Senior Notes Redeemed Pursuant to a Total
Taking or Casualty.
In the event of a Total Taking or Casualty, the Issuer or the
Partnership shall, within 60 days after receipt of any
condemnation or insurance proceeds but within one year after the
occurrence of such Total Taking or Casualty, redeem the Senior
Notes at 100% of the principal amount thereof, in each case,
together with accrued and unpaid interest through the Redemption
Date, in accordance with this Article Eleven.
Section 11.4. Applicability of Article.
Redemption of Senior Notes as required by any provision of
this Indenture, shall be made in accordance with such provision
and this Article.
Section 11.5. Notice to Trustee.
In case of any redemption in accordance with Sections 11.1,
11.2 or 11.3 hereof, the Issuer or the Partnership, as the case
may be, shall, at least 60 days prior to the Redemption Date fixed
by the Issuer or the Partnership (unless a shorter notice period
shall be satisfactory to the Trustee) notify the Trustee in
writing of such Redemption Date and of the principal amount of
Senior Notes to be redeemed.
(98)
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Section 11.6. Selection by Trustee of Senior Notes to Be
Redeemed.
If less than all the Senior Notes are to be redeemed, the
particular Senior Notes or portions thereof to be redeemed shall
be selected not more than 60 days prior to the Redemption Date by
the Trustee, from the Outstanding Senior Notes not previously
called for redemption pro rata, by lot or by any other method as
the Trustee shall deem fair and reasonable, and the amounts to be
redeemed may be equal to $1,000 or any integral multiple thereof.
The Trustee shall promptly notify the Issuer, the Partnership
and the Senior Note Registrar in writing of the Senior Notes
selected for redemption and, in the case of any Senior Notes
selected for partial redemption, the principal amount thereof to
be redeemed.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to redemption of
Senior Notes shall relate, in the case of any Senior Note redeemed
or to be redeemed only in part, to the portion of the principal
amount of such Senior Note which has been or is to be redeemed.
Section 11.7. Notice of Redemption.
Notice of redemption shall be given by first-class mail,
postage prepaid, mailed not less than 30 nor more than 60 days
prior to the Redemption Date, to each Holder of Senior Notes to be
redeemed, at his address appearing in the Senior Note Register.
All notices of redemption shall state:
(a) the Redemption Date;
(b) the Redemption Price;
(c) if less than all outstanding Senior Notes are to be
redeemed, the identification of the particular Senior Notes to be
redeemed;
(d) in the case of a Senior Note to be redeemed in part, the
principal amount of such Senior Note to be redeemed and that after
the Redemption Date upon surrender of such Senior Note, new Senior
Note or Senior Notes in the aggregate principal amount equal to
the unredeemed portion thereof will be issued;
(e) that Senior Notes called for redemption must be
surrendered to the Paying Agent to collect payment of the
Redemption Price;
(f) that on the Redemption Date the Redemption Price will
become due and payable upon each such Senior Note or portion
(99)
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thereof, and that (unless the Issuer or the Partnership shall
default in payment of the Redemption Price) interest thereon shall
cease to accrue on and after said date;
(g) the place or places where such Senior Notes are to be
surrendered for payment of the Redemption Price;
(h) the CUSIP number, if any, relating to such Senior Notes;
and
(i) if applicable, that such redemption is a result of a
Total Taking or Casualty.
Notice of redemption of Senior Notes to be redeemed shall be
given by the Issuer or, at the Issuer's written request, by the
Trustee in the name and at the expense of the Issuer.
The notice if mailed in the manner herein provided shall be
conclusively presumed to have been given, whether or not the
Holder receives such notice. In any case, failure to give such
notice by mail or any defect in the notice to the Holder of any
Senior Note designated for redemption as a whole or in part shall
not affect the validity of the proceedings for the redemption of
any other Senior Note.
Section 11.8. Deposit of Redemption Price.
On or prior to any Redemption Date, the Issuer or the
Partnership shall deposit with the Trustee or with a Paying Agent
(or, if the Issuer or the Partnership is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 10.3) an
amount of money in same day funds sufficient to pay the Redemption
Price of, and (except if the Redemption Date shall be an Interest
Payment Date) accrued interest on, all the Senior Notes or
portions thereof which are to be redeemed on that date.
Section 11.9. Senior Notes Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the
Senior Notes so to be redeemed shall, on the Redemption Date,
become due and payable at the Redemption Price therein specified
and from and after such date (unless the Issuer or the Partnership
shall default in the payment of the Redemption Price and accrued
interest) such Senior Notes shall cease to bear interest. Upon
surrender of any such Senior Note for redemption in accordance
with said notice, such Senior Note shall be paid by the Issuer or
the Partnership, as the case may be, at the Redemption Price
together with accrued and unpaid interest (including Defaulted
Interest) to the Redemption Date; provided, however, that
installments of interest whose Stated Maturity is on or prior to
the Redemption Date shall be payable to the Holders of such Senior
Notes, or one or more Predecessor Senior Notes, registered as such
(100)
<PAGE>
on the relevant Regular Record Dates according to the terms and
the provisions of Section 3.7.
If any Senior Note called for redemption shall not be so paid
upon surrender thereof for redemption, the principal and premium,
if any, shall, until paid, bear interest from the Redemption Date
at the rate borne by such Senior Note.
Section 11.10. Senior Notes Redeemed in Part.
Any Senior Note which is to be redeemed only in part shall be
surrendered to the Paying Agent at the office or agency maintained
for such purpose pursuant to Section 10.2 (with, if the Issuer,
the Partnership, the Senior Note Registrar or the Trustee so
requires, due endorsement by, or a written instrument of transfer
in form satisfactory to the Issuer, the Partnership, the Senior
Note Registrar or the Trustee duly executed by, the Holder thereof
or such Holder's attorney duly authorized in writing), and the
Issuer shall execute, and the Trustee shall authenticate and
deliver to the Holder of such Senior Note without service charge,
a new Senior Note or Senior Notes, of any authorized denomination
as requested by such Holder in aggregate principal amount equal
to, and in exchange for, the unredeemed portion of the principal
of the Senior Note so surrendered that is not redeemed.
ARTICLE TWELVE
SENIOR NOTE MORTGAGE DOCUMENTS
Section 12.1. Senior Note Mortgage Documents.
(a) In order to secure the due and punctual payment of the
Indenture Obligations, the Issuer, the Partnership and the Trustee
have entered into the Senior Note Mortgage Documents dated of even
date herewith to create the security interests thereunder and for
related matters. The Issuer and the Partnership covenant and
agree that they have full right, power and lawful authority to
grant, bargain, sell, release, convey, hypothecate, assign,
mortgage, pledge, transfer, confirm and grant a security interest
in the property constituting the Collateral, in the manner and
form done in the Senior Note Mortgage Documents or intended to be
done, and that (a) each will forever warrant and defend the title
to the same against the claims of all Persons whatsoever in each
case free and clear of all Liens whatsoever, except Permitted
Liens, (b) each will execute, acknowledge and deliver to the
Trustee such further assignments, transfers, assurances or other
instruments as the Trustee may reasonably require or request, and
(c) each will do or cause to be done all such acts and things as
may be necessary or proper, or as may be reasonably required by
the Trustee, to assure and confirm to the Trustee its interest in
the Collateral, or any part thereof, as from time to time
(101)
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constituted, and the right, title and interest in and to the
Senior Note Mortgage Documents so as to render the same available
for the security and benefit of this Indenture and of the Senior
Notes.
(b) Each Holder, by accepting a Senior Note, consents and
agrees to all of the terms and provisions of the Senior Note
Mortgage Documents, as the same may be amended from time to time
pursuant to the provisions of the Senior Note Mortgage Documents
and this Indenture, and authorizes and directs the Trustee to
enter into the Senior Note Mortgage Documents to which it is a
party and to perform its obligations and exercise its rights
thereunder in accordance therewith; provided, however, that if any
provision of the Senior Note Mortgage Documents limits, qualifies,
or conflicts with the duties imposed by the provisions of the
Trust Indenture Act, the Trust Indenture Act controls.
(c) As amongst the Holders, the Collateral as now or
hereafter constituted shall be held for the equal and ratable
benefit of the Holders without preference, priority or distinction
of any thereof over any other by reason of difference in time of
issuance, sale or otherwise, as security for the Indenture
Obligations.
Section 12.2. Recording, Opinion of Counsel, Etc.
The Issuer and the Partnership will cause, at their own
expense, this Indenture, the Senior Notes, the Senior Note
Mortgage Documents, and all amendments or supplements thereto, to
be registered, recorded and filed and/or re-recorded and/or
re-filed and/or renewed in such manner and in such place or
places, if any, as may be required by law in order fully to
preserve and protect the Liens of the Senior Note Mortgage
Documents and all parts of the Collateral and to effectuate and
preserve the security of the Holders and all rights of the
Trustee.
The Issuer and the Partnership shall furnish to the Trustee:
(a) promptly after the execution and delivery of this
Indenture and each of the Senior Note Mortgage Documents or other
instrument of further assurance, an Opinion of Counsel stating
that, in the opinion of such Counsel, the Senior Note Mortgage
Documents and other instruments of further assurance have been
properly recorded, endorsed, registered and filed, so as to make
effective the Lien intended to be created thereby, and reciting
the details of such action or stating that, in the opinion of such
Counsel, no such action is necessary to make such Liens effective;
and
(b) within 60 days after November 30 in each year beginning
with the year 1994, an Opinion of Counsel, dated as of such date,
(102)
<PAGE>
either stating that, in the opinion of such Counsel, such action
has been taken with respect to the recording, registering, filing,
re-recording, re-registering and re-filing of this Indenture and
the Senior Note Mortgage Documents, financing statements,
supplemental indentures, continuation statements or other
instruments of further assurance as is necessary to maintain the
Lien of the Senior Note Mortgage Documents and reciting the
details of such action, or stating that, in the opinion of
counsel, no such action prior to November 30 of the subsequent
year is necessary to maintain such Lien.
The Trustee shall hold in its possession the Senior Note
Mortgage Documents, except as it from time to time may be required
for actions, suits or proceedings relating to the Senior Note
Mortgage Documents or for the purpose of enforcing or realizing
upon any right or value thereby represented. The Trustee may,
from time to time, in its sole discretion, for the purpose of
convenient location of the Senior Note Mortgage Documents, appoint
one or more agents to hold physical custody, for the account of
the Trustee, of the Senior Note Mortgage Documents.
Section 12.3. Release of Collateral.
To the extent applicable, the Issuer, the Partnership and
each other obligor on the Senior Notes shall cause ss 314(d) of the
Trust Indenture Act relating to the release of property or
securities from the Liens of the Senior Note Mortgage Documents to
be complied with.
Section 12.4. Trust Indenture Act Requirements.
The release of any Collateral from the terms of the Senior
Note Mortgage Documents or the release, in whole or in part, of
the Liens created by any of the Senior Note Mortgage Documents,
will not be deemed to impair the security interests thereunder in
contravention of the provisions of this Indenture if and to the
extent the Collateral or Liens are released pursuant to, and in
accordance with, the applicable Senior Note Mortgage Documents and
pursuant to, and in accordance with, the terms hereof. As set
forth in Section 12.3, to the extent applicable, without
limitation, the Issuer, the Partnership and each other obligor on
the Senior Notes shall cause ss 314(d) of the Trust Indenture Act
relating to the release of property or securities from the Liens
of the Senior Note Mortgage Documents to be complied with. Any
certificate or opinion required by ss 314(d) of the Trust Indenture
Act may be made by two officers of the company, except in cases in
which ss 314(d) of the Trust Indenture Act requires that such
certificate or opinion be made by an independent Person.
(103)
<PAGE>
Section 12.5. Disposition of Certain Collateral without
Requesting Release.
(a) Notwithstanding the provisions of Sections 12.3 and 12.4
hereof, the Partnership may, pursuant to and in accordance with
the Senior Note Mortgage Documents and this Indenture, without
requesting the release or consent of the Trustee:
(i) sell or dispose of, free from the Lien of the
Senior Note Mortgage Documents, any Tangible Personal
Property which, in its reasonable opinion, may have become
obsolete or unfit for use or which is no longer necessary in
the conduct of its businesses or the operation of the
Collateral or the disposal of cash free from the Lien of the
Senior Note Mortgage Documents in the ordinary course of
business;
(ii) alter, repair, replace, change the location or
position of and add to any Tangible Personal Property;
(iii) renew, extend, surrender, terminate, modify or
amend any leases of Tangible Personal Property, when, in its
reasonable opinion, it is prudent to do so; and
(iv) enter into all non-material title encumbrances
described within the definition of "Permitted Encumbrances"
under the Senior Note Mortgage, and including without
limitation those transactions described in Section 5.3 of the
Senior Note Mortgage.
(b) Notwithstanding the provisions of Subsection (a) above,
(x) the Partnership shall not dispose of or transfer (by lease,
assignment, sale or otherwise), or pledge, mortgage or otherwise
encumber (other than Permitted Liens), Collateral pursuant to the
provisions of Section 12.5(a) with a fair value to the obligor
equal to 10% or more of the aggregate fair value of all Collateral
then existing (as determined in the good faith judgment of the
Issuer or the Partnership and, if required by the Trust Indenture
Act, an independent appraiser), in any transaction or any series
of related transactions without complying with Sections 12.3 and
12.4; and (y) the right of the Partnership to rely upon the
provisions of Section 12.5(a) from the date of this Indenture to
December 31, 1993 and for each semiannual period thereafter shall
be conditioned upon the Partnership delivering to the Trustee, on
or before February 28, 1994 and thereafter within 60 days
following each February 28 and August 31, an Officers' Certificate
to the effect that all of such dispositions by the Partnership
(104)
<PAGE>
during such semiannual period (other than those such dispositions,
collections or payments wherein the Partnership has complied with
Sections 12.3 and 12.4) were in the ordinary course of the
Partnership's business and that the proceeds therefrom were used
by the Partnership in connection with its business.
(c) Any disposition of Collateral made in compliance with
the provisions of this Section 12.5 shall be deemed not to impair
the Liens of the Senior Note Mortgage Documents in contravention
of the provisions of this Indenture.
(d) Upon receipt of an Issuer Request, the Trustee shall
execute and deliver, within five business days from the receipt of
the Issuer Request, any instrument deemed by the Partnership to be
necessary or appropriate to dispose of portions of the Collateral
pursuant to this Section 12.5 if the provisions of this
Section 12.5 have been complied with.
Section 12.6. Suits to Protect the Collateral.
Subject to the provisions of the Senior Note Mortgage
Documents, (i) the Trustee may, in its sole discretion and without
the consent of the Holders, take all actions it deems necessary or
appropriate in order to (a) enforce any of the terms of the Senior
Note Mortgage Documents and (b) collect and receive any and all
amounts payable in respect of the obligations of the Issuer and
the Partnership and (ii) the Trustee shall have power to institute
and to maintain such suits and proceedings as it may deem
expedient to prevent any impairment of the Collateral by any acts
which may be unlawful or in violation of the Senior Note Mortgage
Documents or this Indenture, including such suits and proceedings
as the Trustee may deem expedient to preserve or protect its
interests and the interests of the Holders in the Collateral and
in the principal, interest, issues, profits, rents, revenues and
other income arising therefrom (including power to institute and
maintain suits or proceedings to restrain the enforcement of or
compliance with any legislative or other governmental enactment,
rule or order that may be unconstitutional or otherwise invalid if
the enforcement of, or compliance with, such enactment, rule or
order would impair the security interests or be prejudicial to the
interests of the Holders or the Trustee).
Section 12.7. Determinations Relating to Collateral.
In the event (i) the Trustee shall receive any written
request from the Issuer or the Partnership under any Senior Note
Mortgage Documents for consent or approval with respect to any
matter or thing relating to any Collateral or the Issuer's or the
Partnership's obligations with respect thereto or (ii) there shall
be due to or from the Trustee under the provisions of the Senior
Note Mortgage Documents any material performance or the delivery
of any material instrument or (iii) the Trustee shall become aware
of any nonperformance by the Issuer or the Partnership of any
covenant or any breach of any representation or warranty of the
Issuer or the Partnership set forth in the Senior Note Mortgage
Documents, then, in each such event, the Trustee shall be entitled
to hire experts, consultants, agents and attorneys to advise the
(105)
<PAGE>
Trustee on the manner in which the Trustee should respond to such
request or render any requested performance or respond to such
nonperformance or breach. The Trustee shall be fully protected in
the taking of any action recommended or approved by any such
expert, consultant, agent or attorney or agreed to by the Holders
of a majority in principal amount of the Outstanding Senior Notes
pursuant to Section 5.12.
Section 12.8. Impairment of Security Interest.
The Issuer and the Partnership will not, and will not permit
any Subsidiary to, take or omit to take any action which
reasonably might or would have the result of affecting or
impairing the security interests with respect to the Collateral in
contravention of this Indenture, and the Issuer and the
Partnership shall not (and shall cause the Subsidiaries not to)
grant to, or suffer to exist in favor of, any Person any interest
whatsoever in the Collateral except as permitted by the Senior
Note Mortgage Documents or this Indenture. The Issuer and the
Partnership will not, and will not permit any Subsidiary to, enter
into any agreement or instrument that by its terms expressly
requires that the proceeds received from the sale of any
Collateral be applied to repay, redeem or otherwise retire any
Indebtedness of any Person other than as set forth in this Article
Twelve and in the Senior Note Mortgage Documents.
Section 12.9. Release Upon Termination of the Issuer's
Obligations.
(a) In the event that the Issuer delivers an Officers'
Certificate certifying that all of the Indenture Obligations have
been indefeasibly satisfied and discharged by complying with the
provisions of Article Thirteen or Sections 4.2 or 4.3, the Trustee
shall deliver to the Issuer at the Issuer's expense a notice
stating that, subject to Section 4.6, the Trustee, on behalf of
the Holders, disclaims and gives up any and all rights it has in
or to the Collateral, and any rights it has under the Senior Note
Mortgage Documents, and on demand of and at the expense of the
Issuer or the Partnership, the Trustee shall also execute and
deliver proper instruments acknowledging the satisfaction and
discharge of this Indenture and all Senior Note Mortgage Documents
and, upon and after the receipt by the Issuer of such notice, the
Trustee shall not be deemed to hold the security interests in the
Collateral for the benefit of the Holders and shall deliver to the
Issuer any Collateral in its possession.
(b) Any release of any portion of the Collateral made
strictly in compliance with the provisions of this Section 12.9
shall not be deemed to impair the security interests in the
Collateral created by the Senior Note Mortgage Documents in
contravention of the provisions of this Indenture.
(106)
<PAGE>
Section 12.10. Authorization of Receipt of Funds by the
Trustee Under the Senior Note Mortgage Documents.
The Trustee is authorized to receive any funds for the
benefit of Holders of Senior Notes distributed under the Senior
Note Mortgage Documents, and to make further distributions of such
funds to the Holders according to the provisions of this
Indenture.
ARTICLE THIRTEEN
SATISFACTION AND DISCHARGE
Section 13.1. Satisfaction and Discharge of Indenture.
This Indenture shall cease to be of further effect (except as
to surviving rights of registration of transfer or exchange of
Senior Notes herein expressly provided for) and the Trustee, on
demand of and at the expense of the Issuer or the Partnership,
shall execute and deliver proper instruments acknowledging
satisfaction and discharge of this Indenture and all Senior Note
Mortgage Documents, when
(a) either
(1) all Senior Notes theretofore authenticated and
delivered (other than (i) Senior Notes which have been
destroyed, lost or stolen and which have been replaced or
paid as provided in Section 3.6 and (ii) Senior Notes for
whose payment funds have theretofore been deposited in trust
or segregated and held in trust by the Issuer and thereafter
repaid to the Issuer or discharged from such trust, as
provided in Section 10.3) have been delivered to the Trustee
for cancellation; or
(2) all such Senior Notes not theretofore delivered to
the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated
Maturity within one year, or
(iii) are to be called for redemption within one
year under arrangements satisfactory to the Trustee for
the giving of notice of redemption by the Trustee in the
name, and at the expense, of the Issuer and the
Partnership,
and the Issuer or the Partnership, in the case of (2)(i),
(ii) or (iii) above, has irrevocably deposited or caused to
(107)
<PAGE>
be deposited with the Trustee as trust funds in trust an
amount in cash in lawful currency of the United States of
America or U.S. Government Obligations sufficient to pay and
discharge the entire Indebtedness on such Senior Notes not
theretofore delivered to the Trustee for cancellation,
including principal of, premium, if any, and accrued interest
on such Senior Notes, at such Stated Maturity or Redemption
Date;
(b) the Issuer and the Partnership have paid or caused to be
paid all other sums payable hereunder by the Issuer or the
Partnership; and
(c) the Issuer and the Partnership have delivered to the
Trustee an Officers' Certificate and an opinion of Counsel each
stating that (i) all conditions precedent herein provided for
relating to the satisfaction and discharge of this Indenture have
been complied with and (ii) such satisfaction and discharge will
not result in a breach or violation of, or constitute a default
under, this Indenture or any other material agreement or
instrument to which the Issuer or the Partnership is a party or by
which the Issuer or the Partnership is bound.
Notwithstanding the satisfaction and discharge of this Indenture,
the obligations of the Issuer and the Partnership to the Trustee
under Section 6.6 and, if money shall have been deposited with the
Trustee pursuant to subclause (2) of Subsection (a) of this
Section, the obligations of the Trustee under Section 4.2 and the
last paragraph of Section 10.3 shall survive.
Section 13.2. Application of Trust Money.
Subject to the provisions of the last paragraph of
Section 10.3, all funds deposited with the Trustee pursuant to
Section 13.1 shall be held in trust and applied by it, in
accordance with the provisions of the Senior Notes and this
Indenture, to the payment, either directly or through any Paying
Agent (including the Issuer acting as its own Paying Agent) as the
Trustee may determine, to the Persons entitled thereto, of the
principal of, premium, if any, and interest on the Senior Notes
for whose payment such funds have been deposited with the Trustee.
ARTICLE FOURTEEN
SENIOR GUARANTEE
Section 14.1. Partnership Senior Guarantee.
For value received, the Partnership in accordance with this
Article Fourteen and, subject to Section 3.11 hereof, hereby
absolutely, unconditionally and irrevocably guarantees to the
(108)
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Trustee and the Holders, as if the Partnership were the principal
debtor, the punctual payment and performance when due of all
Indenture Obligations (which for purposes of this Senior Guarantee
shall also be deemed to include all commissions, fees, charges,
costs and other expenses (including reasonable legal fees and
disbursements of one counsel) arising out of or incurred by the
Trustee or the Holders in connection with the enforcement of this
Senior Guarantee).
Section 14.2. Continuing Guarantee; No Right of Set-Off;
Independent Obligation.
(a) This Senior Guarantee shall be a continuing guarantee of
the payment and performance of all Indenture Obligations and shall
remain in full force and effect until the payment in full of all
of the Indenture Obligations and shall apply to and secure any
ultimate balance due or remaining unpaid to the Trustee or the
Holders; and this Senior Guarantee shall not be considered as
wholly or partially satisfied by the payment or liquidation at any
time or from time to time of any sum of money for the time being
due or remaining unpaid to the Trustee or the Holders. The
Partnership covenants and agrees to comply with all obligations,
covenants, agreements and provisions applicable to it in this
Indenture including those set forth in Article Eight. Without
limiting the generality of the foregoing, the Partnership's
liability shall extend to all amounts which constitute part of the
Indenture Obligations and would be owed by the Issuer under this
Indenture and the Senior Notes but for the fact that they are
unenforceable, reduced, limited, impaired, suspended or not
allowable due to the existence of a bankruptcy, reorganization or
similar proceeding involving the Issuer.
(b) The Partnership hereby guarantees that the Indenture
Obligations will be paid to the Trustee without set-off or
counterclaim or other reduction whatsoever (whether for taxes,
withholding or otherwise) in lawful currency of the United States
of America.
(c) The Partnership guarantees that the Indenture
Obligations shall be paid strictly in accordance with their terms
regardless of any law, regulation or order now or hereafter in
effect in any jurisdiction affecting any of such terms or the
rights of the Holders of the Senior Notes.
(d) The Partnership's liability to pay or perform or cause
the performance of the Indenture Obligations under this Senior
Guarantee shall arise forthwith after demand for payment or
performance by the Trustee has been given to the Partnership in
the manner prescribed in Section 1.6 hereof.
(e) Except as provided herein, the provisions of this
Article Fourteen cover all agreements between the parties hereto
(109)
<PAGE>
relative to this Senior Guarantee and none of the parties shall be
bound by any representation, warranty or promise made by any
Person relative thereto which is not embodied herein; and it is
specifically acknowledged and agreed that this Senior Guarantee
has been delivered by the Partnership free of any conditions
whatsoever and that no representations, warranties or promises
have been made to the Partnership affecting its liabilities
hereunder, and that the Trustee shall not be bound by any
representations, warranties or promises now or at any time
hereafter made by the Issuer to the Partnership.
Section 14.3. Guarantee Absolute.
The obligations of the Partnership hereunder are independent
of the obligations of the Issuer under the Senior Notes and this
Indenture and a separate action or actions may be brought and
prosecuted against the Partnership whether or not an action or
proceeding is brought against the Issuer and whether or not the
Issuer is joined in any such action or proceeding. The liability
of the Partnership hereunder is irrevocable, absolute and
unconditional and (to the extent permitted by law) the liability
and obligations of the Partnership hereunder shall not be
released, discharged, mitigated, waived, impaired or affected in
whole or in part by:
(a) any defect or lack of validity or enforceability in
respect of any indebtedness or other obligation of the
Issuer or any other Person under this Indenture or the
Senior Notes, or any agreement or instrument relating to
any of the foregoing;
(b) any grants of time, renewals, extensions, indulgences,
releases, discharges or modifications which the Trustee
or the Holders may extend to, or make with, the Issuer,
the Partnership or any other Person, or any change in
the time, manner or place of payment of, or in any other
term of, all or any of the Indenture Obligations, or any
other amendment or waiver of, or any consent to or
departure from, this Indenture or the Senior Notes,
including any increase or decrease in the Indenture
Obligations;
(c) the taking of security from the Issuer, the Partnership
or any other Person, and the release, discharge or
alteration of, or other dealing with, such security;
(d) the occurrence of any change in the laws, rules,
regulations or ordinances of any jurisdiction by any
present or future action of any governmental authority
or court amending, varying, reducing or otherwise
affecting, or purporting to amend, vary, reduce or
(110
<PAGE>
otherwise affect, any of the Indenture Obligations and
the obligations of the Partnership hereunder;
(e) the abstention from taking security from the Issuer, the
Partnership or any other Person or from perfecting,
continuing to keep perfected or taking advantage of any
Lien of the Senior Note Mortgage;
(f) any loss, diminution of value or lack of enforceability
of any Senior Note received from the Issuer, the
Partnership or any other Person, and including any other
guarantees received by the Trustee;
(g) any other dealings with the Issuer, the Partnership or
any other Person, or with any Senior Note;
(h) the Trustee's or the Holder's acceptance of compositions
from the Issuer or the Partnership;
(i) the application by the Holders or the Trustee of all
monies at any time and from time to time received from
the Issuer, the Partnership or any other Person on
account of any indebtedness and liabilities owing by the
Issuer or the Partnership to the Trustee or the Holders,
in such manner as the Trustee or the Holders deems best
and the changing of such application in whole or in part
and at any time or from time to time, or any manner of
application of collateral, or proceeds thereof, to all
or any of the Indenture Obligations, or the manner of
sale of any Collateral;
(j) the release or discharge of the Issuer or the
Partnership or of any other guarantor of the Senior
Notes or of any Person liable directly as surety or
otherwise by operation of law or otherwise for the
Senior Notes, other than an express release in writing
given by the Trustee, on behalf of the Holders, of the
liability and obligations of the Partnership hereunder;
(k) any change in the name, business, capital structure or
governing instrument of the Issuer or the Partnership or
any refinancing or restructuring of any of the Indenture
Obligations;
(l) the sale of the Issuer's or the Partnership's business
or any part thereof;
(m) any merger or consolidation, arrangement or
reorganization of the Issuer, the Partnership, any
Person resulting from the merger or consolidation of the
Issuer or the Partnership with any other Person or any
other successor to such Person or merged or consolidated
(111)
<PAGE>
Person or any other change in the corporate existence,
structure or ownership of the Issuer or the Partnership;
(n) the insolvency, bankruptcy, liquidation, winding-up,
dissolution, receivership or distribution of the assets
of the Issuer or its assets or any resulting discharge
of any obligations of the Issuer (whether voluntary or
involuntary) or of the Partnership of the loss of
corporate existence;
(p) any arrangement or plan of reorganization affecting the
Issuer or the Partnership;
(q) any other circumstance (including any statute of
limitations) that might otherwise constitute a defense
available to, or discharge of, the Issuer or the
Partnership; or
(r) any modification, compromise, settlement or release by
the Trustee, or by operation of law or otherwise, of the
Indenture Obligations or the liability of the Issuer or
any other obligor under the Senior Notes, or of any
Collateral, in whole or in part, and any refusal of
payment by the Trustee, in whole or in part, from any
other obligor or other guarantor in connection with any
of the Indenture Obligations, whether or not with notice
to, or further assent by, or any reservation of rights
against, the Partnership.
Section 14.4. Right to Demand Full Performance.
In the event of any demand for payment or performance by the
Trustee from the Partnership hereunder, the Trustee or the Holders
shall have the right to demand its full claim and to receive all
dividends or other payments in respect thereof until the Indenture
Obligations have been paid in full, and the Partnership shall
continue to be liable hereunder for any balance which may be owing
to the Trustee or the Holders by the Issuer under this Indenture
and the Senior Notes. The retention by the Trustee or the Holders
of any Senior Note, prior to the realization by the Trustee or the
Holders of its rights to such Senior Note upon foreclosure
thereon, shall not, as between the Trustee and the Partnership, be
considered as a purchase of such Senior Note, or as payment,
satisfaction or reduction of the Indenture Obligations due to the
Trustee or the Holders by the Issuer or any part thereof.
Section 14.5. Waivers.
(a) The Partnership hereby expressly waives (to the extent
permitted by law) notice of the acceptance of this Senior
Guarantee and notice of the existence, renewal, extension or the
non-performance, non-payment, or non-observance on the part of the
(112)
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Issuer of any of the terms, covenants, conditions and provisions
of this Indenture or the Senior Notes or any other notice
whatsoever to or upon the Issuer or the Partnership with respect
to the Indenture Obligations. The Partnership hereby acknowledges
communication to it of the terms of this Indenture and the Senior
Notes and all of the provisions therein contained and consents to
and approves the same. The Partnership hereby expressly waives
(to the extent permitted by law) diligence, presentment, protest
and demand for payment.
(b) Without prejudice to any of the rights or recourses
which the Trustee or the Holders may have against the Issuer, the
Partnership hereby expressly waives (to the extent permitted by
law) any right to require the Trustee or the Holders to:
(i) initiate or exhaust any rights, remedies or
recourse against the Issuer, the Partnership
or any other Person;
(ii) value, realize upon, or dispose of any Senior
Note of the Issuer or any other Person held by
the Trustee or the Holders; or
(iii) initiate or exhaust any other remedy which the
Trustee or the Holders may have in law or
equity;
before requiring or becoming entitled to demand payment from the
Partnership under this Guarantee.
Section 14.6. The Partnership Remains Obligated in Event the
Issuer Is No Longer Obligated to Discharge Indenture Obligations.
It is the express intention of the Trustee and the
Partnership that if for any reason the Issuer has no legal
existence, is or becomes under no legal obligation to discharge
the Indenture Obligations owing to the Trustee or the Holders by
the Issuer or if any of the Indenture Obligations owing by the
Issuer to the Trustee or the Holders becomes irrevocable from the
Issuer by operation of law or for any reason whatsoever, this
Senior Guarantee and the covenants, agreements and obligations of
the Partnership contained in this Article Fourteen shall
nevertheless be binding upon the Partnership, as principal debtor,
until such time as all such Indenture Obligations have been paid
in full to the Trustee and all Indenture Obligations owing to the
Trustee or the Holders by the Issuer have been discharged, or such
earlier time as Section 4.2 shall apply to the Senior Notes and
the Partnership shall be responsible for the payment thereof to
the Trustee or the Holders upon demand.
(113)
<PAGE>
Section 14.7. Waiver of Rights.
The Partnership agrees (to the extent permitted by law) that
it hereby waives and will not in any manner whatsoever claim or
take the benefit or advantage of, any rights of reimbursement,
exoneration, contribution, indemnity or subrogation (whether
contractual, under Section 509 of Title Eleven of the United
States Code, under common law or otherwise) or any similar rights
or "claims" (as such term is defined under Title Eleven of the
United States Code), against the Issuer or any Subsidiary arising
from the existence of, or performance by, the Partnership under
this Senior Guarantee.
Section 14.8. Senior Guarantee Is in Addition to Other
Security.
This Senior Guarantee shall be in addition to and not in
substitution for any other guarantees or other security which the
Trustee may now or hereafter hold in respect of the Indenture
Obligations owing to the Trustee or the Holders by the Issuer and
(except as may be required by law) the Trustee shall be under no
obligation to marshal in favor of the Partnership any other
guarantees or other security or any moneys or other assets which
the Trustee may be entitled to receive or upon which the Trustee
or the Holders may have a claim.
Section 14.8. Release of Security Interests.
Without limiting the generality of the foregoing and except
as otherwise provided in this Indenture, the Partnership hereby
consents and agrees, to the fullest extent permitted by applicable
law, that the rights of the Trustee hereunder, and the liability
of the Partnership hereunder, shall not be affected by any and all
releases for any purpose of any Collateral, if any, from the Liens
and security interests created by the Senior Note Mortgage and
that this Senior Guarantee shall continue to be effective or be
reinstated, as the case may be, if at any time any payment of any
of the Indenture Obligations is rescinded or must otherwise be
returned by the Trustee upon the insolvency, bankruptcy or
reorganization of the Issuer or otherwise, all as though such
payment had not been made.
Section 14.10. No Bar to Further Actions.
Except as provided by law, no action or proceeding brought or
instituted under Article Fourteen and this Senior Guarantee and no
recovery or judgment in pursuance thereof shall be a bar or
defense (other than a defense of payment) to any further action or
proceeding which may be brought under Article Fourteen and this
Senior Guarantee by reason of any further default or defaults
under Article Fourteen and this Senior Guarantee or in the payment
of any of the Indenture Obligations owing by the Issuer.
(114)
<PAGE>
Section 14.11. Failure to Exercise Rights Shall Not Operate
As a Waiver; No Suspension of Remedies.
(a) No failure to exercise and no delay in exercising, on
the part of the Trustee or the Holders, any right, power,
privilege or remedy under this Article Fourteen and this Senior
Guarantee shall operate as a waiver thereof, nor any single or
partial exercise of any right, power, privilege or remedy preclude
any other or further exercise thereof, or the exercise of any
other rights, powers, privileges or remedies. The rights and
remedies herein provided for are cumulative and not exclusive of
any rights or remedies provided in law or equity.
(b) Nothing contained in this Article Fourteen shall limit
the right of the Trustee or the Holders to take any action to
accelerate the maturity of the Senior Notes pursuant to Article
Five or to pursue any rights or remedies hereunder or under
applicable law.
Section 14.12. Successors and Assigns.
All terms, agreements and conditions of this Article Fourteen
shall extend to and be binding upon the Partnership and its
successors and permitted assigns and shall enure to the benefit of
and may be enforced by the Trustee and its successors and assigns;
provided, however, that the Partnership may not assign any of its
rights or obligations hereunder other than in accordance with
Article Eight.
Section 14.13. Release of Senior Guarantee.
Concurrently with the payment in full of all of the Indenture
Obligations, the Partnership shall be released from and relieved
of its obligations under this Article Fourteen. Upon the delivery
by the Issuer to the Trustee of an Officers' Certificate and, if
requested by the Trustee, an Opinion of Counsel to the effect that
the transaction giving rise to the release of this Senior
Guarantee was made by the Issuer in accordance with the provisions
of this Indenture and the Senior Notes, the Trustee shall execute
any documents reasonably required in order to evidence the release
of the Partnership from its obligations under this Senior
Guarantee and the Senior Note Mortgage Documents if any of the
Indenture Obligations are revived and reinstated after the
termination of this Senior Guarantee, then all of the obligations
of the Partnership under this Senior Guarantee shall be revived
and reinstated as if this Senior Guarantee had not been terminated
until such time as the Indenture Obligations are paid in full, and
the Partnership shall enter into an amendment to this Senior
Guarantee, reasonably satisfactory to the Trustee, evidencing such
revival and reinstatement.
(115)
<PAGE>
This Senior Guarantee shall terminate upon a merger or
consolidation of the Partnership with the Issuer, in accordance
with Article Eight.
Section 14.14. Execution of Senior Guarantee.
To evidence the Senior Guarantee, the Partnership hereby
agrees to execute a guarantee substantially in the form set forth
in Section 2.5, to be endorsed on each Senior Note authenticated
and delivered by the Trustee and that this Indenture shall be
executed on behalf of the Partnership by one of its general
partners or its President or one of its Vice Presidents. The
signature of any of these officers on the Senior Notes may be
manual or facsimile.
If an officer whose signature is on this Indenture no longer
holds that office at the time the Trustee authenticates a Senior
Note on which this Senior Guarantee is endorsed, such Senior
Guarantee shall be valid nevertheless.
* * * * * *
(116)
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, and their respective corporate
seals to be hereunto affixed and attested, all as of the day and
year first above written.
TRUMP'S CASTLE FUNDING, INC.,
as Issuer
By_________________________
Title:
Attest:____________________
Title:
TRUMP'S CASTLE ASSOCIATES,
as Guarantor
By_________________________
General Partner
Attest:____________________
Title:
FIRST BANK NATIONAL ASSOCIATION,
as Trustee
By_________________________
Title:
Attest: ____________________
Title:<PAGE>
(118)
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the ______ day of December, 1993, before me personally
came Donald J. Trump, to me known, who, being by me duly sworn,
did depose and say that he resides at 721 Fifth Avenue, New York,
New York; that he is President of Trump's Castle Funding, Inc.,
one of the corporations described in and which executed the above
instrument; that he knows the corporate seal of such corporation;
that the seal affixed to said instrument is such corporate seal;
that it was so affixed pursuant to authority of the Board of
Directors of such corporation; and that he signed his name thereto
pursuant to like authority.
(NOTARIAL SEAL)
______________________________
(119)
<PAGE>
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the ______ day of December, 1993, before me personally
came Donald J. Trump, to me known, who, being by me duly sworn,
did depose and say that he resides at 721 Fifth Avenue, New York,
New York; that he is the managing general partner of Trump's
Castle Associates, the partnership described in and which executed
the above instrument; and he acknowledged that he signed and
delivered the same on behalf of such partnership as his voluntary
act and deed and as the voluntary act and deed of such
partnership, pursuant to authority of the board of directors of
said partnership, and that he received a true copy of the within
instrument on behalf of said general partnership.
(NOTARIAL SEAL)
______________________________
(120)
PAGE
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the _______ day of December, 1993, before me personally
came Donald J. Trump, to me known, who, being by me duly sworn,
did depose and say that he resides at 721 Fifth Avenue, New York,
New York; that he is the managing general partner of Trump's
Castle Associates, the partnership described in and which executed
the above instrument; and he acknowledged that he signed and
delivered the same on behalf of such partnership as his voluntary
act and deed and as the voluntary act and deed of such
partnership, pursuant to authority of the board of directors of
said partnership, and that he received a true copy of the within
instrument on behalf of said general partnership;
______________________________
Notary Public
(NOTARY SEAL)
(121)
<PAGE>
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the ______ day of December, 1993, before me personally
came Frank P. Leslie, to me known, who, being by me duly sworn,
did depose and say that he is an Assistant Vice President of First
Bank National Association, one of the corporations described in
and which executed the above instrument; that he knows the
corporate seal of such corporation; that the seal affixed to said
instrument is such corporate seal; that it was so affixed pursuant
to authority of the board of directors of such corporation; and
that he signed his name thereto pursuant to like authority.
(NOTARIAL SEAL)
______________________________
(122)
<PAGE>
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
BE IT REMEMBERED, that on December 27, 1993, before me, the
subscriber, personally appeared Frank P. Leslie, the Assistant
vice president of FIRST BANK NATIONAL ASSOCIATION, the natinal
banking assocition named in the within document, who, I am
satisfied, is the person who has signed the within instrument; and
I having first made nkown to him the contents thereof he
acknowledged thathe signed sealed, with the corporate seal and
delivered the said instrument as such officer aforesaid; that the
within instrument is the voluntary act and deed of said national
banking association, made by virtue of authority from its Board of
Directors.
(NOTARIAL SEAL)
______________________________
(123)
<PAGE>
<PAGE>
_________________________________________________________________
NOTE PURCHASE AGREEMENT
_________________________________________________________________
$[27,000,000]
11 1/2% Series A Senior Secured Notes Due 2000
of
TRUMP'S CASTLE FUNDING, INC.
Guaranteed by
TRUMP'S CASTLE ASSOCIATES
________________________________________________________________
December 28, 1993
________________________________________________________________
<PAGE>
Table of Contents
PAGE
SECTION 1. DEFINITIONS. . . . . . . . . . . . . . . . . . . . 2
SECTION 2. PURCHASE AND SALE OF SENIOR . . . . . . . . . . . 7
2.1. Issuance of Senior Notes and Senior Guarantee. . . . 7
2.2. Sale and Purchase of the Senior Notes; the Closing . 7
2.2.1. Sale and Purchase. . . . . . . . . . . . . . 7
2.2.2. Closing. . . . . . . . . . . . . . . . . . . 8
2.3. Each Fund's Representations. . . . . . . . . . . . . 8
2.3.1. Authorization and Authority. . . . . . . . . 8
2.3.2. Investment Intent; Transfer of Senior
Notes . . . . . . . . . . . . . . . . . . . . . 8
2.3.3. ERISA. . . . . . . . . . . . . . . . . . . . 9
2.3.4. Registered Investment Company. . . . . . . . 9
2.4. Failure to Deliver . . . . . . . . . . . . . . . . . 9
2.4.1. No Closing . . . . . . . . . . . . . . . . . 9
2.4.2. Failure to Notify. . . . . . . . . . . . . . 10
2.5. Expenses . . . . . . . . . . . . . . . . . . . . . . 10
2.6. Indemnification. . . . . . . . . . . . . . . . . . . 11
2.6.1. Scope of Indemnification . . . . . . . . . . 11
2.6.2. Indemnification Procedures . . . . . . . . . 12
2.7. Contribution . . . . . . . . . . . . . . . . . . . . 13
2.7.1. Indemnification Provisions Unenforceable . . 13
2.7.2. No Pro Rata Allocation . . . . . . . . . . . 14
2.7.3. Survival of Obligations. . . . . . . . . . . 14
2.8. Further Actions. . . . . . . . . . . . . . . . . . . 14
SECTION 3. CLOSING CONDITIONS . . . . . . . . . . . . . . . . 15
3.1. Conditions to the Funds' Obligations . . . . . . . . 15
3.1.1. Opinion of Counsel . . . . . . . . . . . . . 15
3.1.2. Officers' Certificates . . . . . . . . . . . 15
3.1.3. Issue of Senior Notes. . . . . . . . . . . . 15
3.1.4. Representations and Warranties True; No
Event
of Default. . . . . . . . . . . . . . . . . . . . 15
3.1.5. Compliance with Agreements . . . . . . . . . 16
3.1.6. Your Purchase Permitted by Applicable Laws;
Legal
Investment. . . . . . . . . . . . . . . . . . . . 16
3.1.7. The Indenture, the Registration Rights
Agreement and the Security
Documentation . . . . . . . . . . . . 16
3.1.8. Recapitalization Transactions. . . . . . . . 16
3.1.9. Consents and Permits . . . . . . . . . . . . 16
3.1.10. Proceedings Satisfactory. . . . . . . . . . 17
3.1.11. No Material Adverse Change. . . . . . . . . 17
3.1.12. No Material Judgment or Order . . . . . . . 17
(i)
<PAGE>
3.1.13. Payment of Fees . . . . . . . . . . . . . . 17
3.2. Conditions to the Obligations of Funding . . . . . . 17
3.2.1. Sale of Senior Notes . . . . . . . . . . . . 18
3.2.2. Funds' Representations and Warranties. . . . 18
3.2.3. No Material Judgment or Order. . . . . . . . 18
3.2.4. The Sale by Funding Permitted by Applicable
Laws. . . . . . . . . . . . . . . . . . . . . . 18
3.2.5. Consents and Permits . . . . . . . . . . . . 18
SECTION 4. THE FUNDS' SPECIAL RIGHTS. . . . . . . . . . . . . 19
4.1. Delivery Expenses. . . . . . . . . . . . . . . . . . 19
4.2. Issue Taxes. . . . . . . . . . . . . . . . . . . . . 19
4.3. Direct Payment . . . . . . . . . . . . . . . . . . . 19
4.4. Inspection . . . . . . . . . . . . . . . . . . . . . 20
4.5. Financial Statements . . . . . . . . . . . . . . . . 20
4.5.1. Delivery . . . . . . . . . . . . . . . . . . 20
4.5.2. Disclosure; Officer's Certificate. . . . . . 20
4.5.3. Additional Information . . . . . . . . . . . 21
4.6. ERISA Compliance . . . . . . . . . . . . . . . . . . 21
4.7. No Bond Necessary. . . . . . . . . . . . . . . . . . 21
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 5. REPRESENTATIONS AND WARRANTIES . . . . . . . . . . 22
5.1. Organization, Standing and Qualification . . . . . . 22
5.1.1. Organization; Standing . . . . . . . . . . . 22
5.1.2. Authority. . . . . . . . . . . . . . . . . . 22
5.2. Authorization of Agreement and Other Documents. . . . . . 22
5.3. No Violation . . . . . . . . . . . . . . . . . . . . 23
5.3.1. Existing Violations. . . . . . . . . . . . . 23
5.3.2. Execution of Agreement . . . . . . . . . . . 23
5.4. Use of Proceeds. . . . . . . . . . . . . . . . . . . 24
5.5. No Default . . . . . . . . . . . . . . . . . . . . . 24
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
5.6. Full Disclosure. . . . . . . . . . . . . . . . . . . 24
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
5.7. ERISA. . . . . . . . . . . . . . . . . . . . . . . . 24
5.8. Compliance with Laws . . . . . . . . . . . . . . . . 25
5.9. Consents . . . . . . . . . . . . . . . . . . . . . . 25
5.10. No Violation of Regulations of Board of Governors
of
Federal Reserve System . . . . . . . . . . . . . . . . . 26
5.11. Private Offering. . . . . . . . . . . . . . . . . . 26
5.11.1. Sale Exempt . . . . . . . . . . . . . . . . 26
5.11.2. No General Solicitation . . . . . . . . . . 26
5.12. Governmental Regulations. . . . . . . . . . . . . . 27
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
5.13. Survival of Indemnification and Contribution and
Representations and Warranties . . . . . . . . . . . . . 27
(ii)
<PAGE>
SECTION 6. MISCELLANEOUS. . . . . . . . . . . . . . . . . . . 27
6.1. Notices. . . . . . . . . . . . . . . . . . . . . . . 27
6.2. Successors and Assigns . . . . . . . . . . . . . . . 28
6.3. Amendment and Waiver . . . . . . . . . . . . . . . . 28
6.4. Counterparts . . . . . . . . . . . . . . . . . . . . 28
6.5. Headings . . . . . . . . . . . . . . . . . . . . . . 29
6.6. Governing Law. . . . . . . . . . . . . . . . . . . . 29
6.7. Entire Agreement . . . . . . . . . . . . . . . . . . 29
6.8. Severability . . . . . . . . . . . . . . . . . . . . 29
Exhibit A
Form of Senior Note Indenture
Exhibit B
Form of Registration Rights Agreement
Exhibit C
Form of Indenture of Mortgage and Security Agreement
(Senior Note Mortgage)
Exhibit D
Form of Indenture of Mortgage and Security Agent
(Senior Guarantee Mortgage)
Exhibit E
Form of Opinion of Willkie Farr & Gallagher
-iii-
<PAGE>
TRUMP'S CASTLE FUNDING, INC.
TRUMP'S CASTLE ASSOCIATES
Brigantine Boulevard and Huron Avenue
Atlantic City, New Jersey 08401
As of December 28, 1993
PUTNAM PREMIER INCOME TRUST
PUTNAM MASTER INCOME TRUST
PUTNAM CAPITAL MANAGER TRUST
- PCM HIGH YIELD FUND
PUTNAM MASTER INTERMEDIATE INCOME TRUST
PUTNAM DIVERSIFIED INCOME TRUST
PUTNAM MANAGED HIGH YIELD TRUST
PUTNAM CAPITAL MANAGER TRUST
- PCM DIVERSIFIED INCOME FUND
PUTNAM HIGH YIELD ADVANTAGE FUND
FUTNAM HIGH YIELD TRUST
PUTNAM HIGH INCOME CONVERTIBLE AND BOND FUND
c/o Putnam Investment Management
One Post Office Square
Boston, Massachusetts 02110
Re: 11.5% Series A Senior Notes due 2000
Ladies and Gentlemen:
Each of Trump's Castle Funding, Inc., a New Jersey
corporation ("Funding"), and Trump's Castle Associates, a New
Jersey general partnership (the "Partnership"), hereby agrees with
each of you (each of you individually being hereinafter referred
to as a "Fund", and all of you collectively as the "Funds") as
follows:
SECTION 1. DEFINITIONS
As used in this Agreement, the following terms shall have the
following meanings:
"accumulated funding deficiency" shall have the meaning
specified in Section 4.6 hereof.
"Affiliate" means, with respect to any specified Person, any
other Person directly or indirectly controlling or controlled by
or under direct or indirect common control with such specified
(2)
<PAGE>
Person. For the purposes of this definition, "control", when used
with respect to any Person, means the power to direct the
management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have
meanings correlative to the foregoing.
"Agreement" means this Note Purchase Agreement, as the same
may be amended, supplemented or modified from time to time in
accordance with the terms hereof.
"Applicable Law" means any Federal, state, local or foreign
statute, law, ordinance, governmental rule or regulation or any
judgment, decree, rule or order of any court or governmental
agency or authority applicable to the Partnership or any of its
Subsidiaries or any of their respective properties, assets or
operations.
"Business Day" means a day that is not a Saturday, a Sunday
or a day on which banking institutions in either the State of New
Jersey or the State of New York are not required to be open.
"Charter Documents" means the Articles or Certificate of
Incorporation and By-Laws, partnership agreement or similar
organizational documents, as amended to the Closing Date, of the
applicable Person.
"Closing" shall have the meaning specified in Section 2.2.2
hereof.
"Closing Date" shall have the meaning specified in Section
2.2.2 hereof.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commission" means the Securities and Exchange Commission.
"complete withdrawal" shall have the meaning specified in
Section 4.6 hereof.
"Default" means any event, act or condition that is, or after
notice or passage of time or both would constitute, an Event of
Default.
"disqualified person" shall have the meaning specified in
Section 2.3.3 hereof.
"Documents" means all documents delivered in connection with
the transactions contemplated by this Agreement, including without
limitation, the Senior Notes, the Senior Note Indenture, the
Registration Rights Agreement, Senior Partnership Note and the
Security Documentation, collectively, or each of such
(3)
<PAGE>
documents singularly, and any documents or instruments
contemplated by or executed in connection with any of them or any
of the transactions contemplated hereby or thereby.
"employee benefit plan" shall have the meaning specified in
Section 2.3.3 hereof.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended.
"ERISA Affiliate" shall have the meaning specified in Section
4.6 hereof.
"Event of Default" means any event defined as an Event of
Default in the Senior Note Indenture.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated by the
Commission thereunder.
"Funding" means Trump's Castle Funding, Inc., a New Jersey
corporation, and any successor thereto.
"Indemnified Parties" shall have the meaning specified in
Section 2.6.1 hereof.
"Lien" shall have the meaning specified in the Senior Note
Indenture.
"Losses" shall have the meaning specified in Section 2.6.1
hereof.
"Material Adverse Effect" means a material adverse effect on
the properties, business, operations, earnings, assets,
liabilities or financial condition of the Partnership and Funding,
taken as a whole, or on the ability of the Partnership or Funding
to perform their respective obligations under this Agreement, the
Senior Notes or any of the other Documents.
"Multiemployer Plan" shall have the meaning specified in
Section 4.6 hereof.
"partial withdrawal" shall have the meaning specified in
Section 4.6 hereof.
"Partnership" means Trump's Castle Associates, a New Jersey
general partnership, and any successor thereto.
"party in interest" shall have the meaning specified in
Section 2.3.3 hereof.
(4)
<PAGE>
"Permitted Investments" shall have the meaning specified in
the Senior Note Indenture.
"Person" means any individual, partnership, corporation,
limited liability company, joint venture, association, joint-stock
company, trust, unincorporated organization, government or agency
or political subdivision thereof, or other entity.
"Privately Outstanding Notes" means the Senior Notes upon the
original issuance thereof and at all times subsequent thereto
until, in the case of any Senior Note, (i) the registered exchange
offer provided for in Section 2 of the Registration Rights
Agreement shall have been consummated and such Senior Note shall
have been resold by the Fund which purchased such Senior Note,
(ii) the sale or other public distribution of such Senior Note
shall have been registered pursuant to the Securities Act and such
Senior Note shall have been disposed of by the Fund which
purchased such Senior Note in accordance with such registration,
or (iii) such Senior Note shall have been resold by the Fund
pursuant to Rule 144, Rule 144A or other resale exemption from the
registration requirements of the Securities Act.
"Proceeding" means an action, claim, suit or proceeding
(including, without limitation, an investigation or partial
proceeding, such as a deposition), whether commenced or to the
knowledge of Funding or the Partnership, as the case may be,
threatened.
"prohibited transaction" shall have the meaning specified in
Section 4.6 hereof.
"qualified trust" shall have the meaning specified in Section
2.3.3 hereof.
"Recapitalization Transactions" means the transactions by
which the recapitalization of the Partnership and Funding will be
effected as described in the Registration Statement.
"Registration Rights Agreement" means the Registration Rights
Agreement of even date herewith by and among Funding, the
Partnership and the Funds, relating to the registration of the
Senior Notes pursuant to the Securities Act and in substantially
the form of Exhibit B hereto.
"Registration Statement" means the registration statement of
Funding and the Partnership, on Form S-4 filed with the Commission
on August 27, 1993 (Registration No. 33-68038), and all amendments
and supplements thereto, including post-effective amendments, in
each case including the prospectus contained
(5)
<PAGE>
therein, all exhibits thereto and all material incorporated by
reference therein.
"reportable event" shall have the meaning specified in
Section 4.6 hereof.
"Rule 144" means Rule 144 as promulgated by the Commission
pursuant to the Securities Act, and any successor rule or
regulation thereto.
"Rule 144A" means Rule 144A as promulgated by the Commission
pursuant to the Securities Act, and any successor rule or
regulation thereto.
"Scheduled Closing Date" shall have the meaning specified in
Section 2.4.2.
"Securities Act" means the Securities Act of 1933, as
amended, and the rules and regulations promulgated by the
Commission pursuant thereto.
"Security Documentation" means the Indenture of Mortgage and
Security Agreement (Senior Note Mortgage) of even date herewith by
and between the Partnership, as mortgagor and debtor, and Funding,
as mortgagee and secured party, the Indenture of Mortgage and
Security Agreement (Senior Guarantee Mortgage) of even date
herewith by and between the Partnership, as mortgagor and debtor,
and the Trustee, as mortgagee and secured party, in substantially
the forms of Exhibits C and D hereto, respectively, and the other
agreements and documents entered into or delivered in connection
therewith.
"Subsidiary" means, with respect to any Person, (i) a
corporation a majority of whose capital stock with voting power,
under ordinary circumstances, to elect directors is owned,
directly or indirectly, by such Person or by one or more other
Subsidiaries of such Person, or by such Person and one or more
Subsidiaries thereof or (ii) any other Person (other than a
corporation) in which such Person, or one or more other
Subsidiaries of such Person or such Person and one or more other
Subsidiaries thereof, directly or indirectly, has at least a
majority ownership and power to direct the policies, management
and affairs thereof.
"Senior Notes" shall have the meaning specified in Section
2.1.1 hereof.
"Senior Note Indenture" means the Indenture, dated as of the
date hereof, by and between Funding, as the issuer, the
Partnership, as the guarantor, and the Trustee, as trustee, in
substantially the form of Exhibit A hereto, as the same may be
amended from time to time, in accordance with the terms thereof.
(6)
<PAGE>
"Senior Partnership Note" means the Note dated as of the date
hereof in the principal amount of $27,000,000 made by the
Partnership in favor of Funding.
"Trustee" shall mean First Bank National Association.
SECTION 2. PURCHASE AND SALE OF SENIOR NOTES
2.1. Issuance of Senior Notes and Senior Guarantee
2.1.1. Issuance of the Senior Notes.
Funding has taken all necessary corporate action to authorize
the issuance and sale of up to $37,000,000 aggregate original
principal amount of its 11.5% Series A Senior Secured Notes Due
2000 (the "Senior Notes") and to make the Senior Notes the
enforceable obligations they purport to be. The Senior Notes will
be issued in denominations of $1,000,000 and any integral multiple
of $1,000,000 thereof, will otherwise be substantially in the form
of Senior Note included in Article II of the Senior Note
Indenture.
2.1.2. Issuance of the Senior Guarantee.
The Partnership has taken all necessary partnership action to
authorize the issuance of its unconditional guarantee of payment
of the Senior Notes as set forth in the Senior Note Indenture, the
issuance of the Senior Partnership Note and the execution and
delivery of the Security Documentation to which it is a party and
to make each of its guarantee of the Senior Notes, the Senior
Partnership Note and the Security Documentation to which it is a
party the enforceable obligation it purports to be.
2.2. Sale and Purchase of the Senior Notes; the Closing
2.2.1. Sale and Purchase
Subject to the terms and conditions set forth herein, Funding
hereby agrees to sell to each Fund the aggregate principal amount
of Senior Notes set forth opposite the name of such Fund on the
execution page hereof for such Fund. All of the Senior Notes
shall be sold at a price equal to 100% of the original principal
amount thereof.
In reliance upon the representations and warranties of
Funding and the Partnership contained herein, in the other
Documents and in the Registration Statement, and subject to the
terms and conditions set forth herein and therein, each Fund<PAGE>
(7)
<PAGE>
hereby agrees, severally and not jointly, to purchase the Senior
Notes to be purchased by such Fund at the purchase price set forth
in this Section. Each Fund shall, severally and not jointly, be
liable for only the purchase of that portion of such Senior Notes
indicated on the execution page hereof for such Fund.
2.2.2. Closing
The sale and purchase of the Senior Notes shall take place at
a closing (the "Closing") at the offices of Wilkie Farr &
Gallagher, 153 East 53rd Street, New York, New York 10022,
commencing at 9:30 A.M., New York time, on December 28, 1993, or
such other place, Business Day (not in any event later than
December 31, 1993) and time as may be agreed upon by the Funds and
Funding (such time and date being referred to as the "Closing
Date"). At the Closing, Funding will deliver to each of the Funds
one or more Senior Notes in the aggregate principal amount or
amounts to be purchased by such Fund, registered in its name or in
the name(s) of such nominee(s) or designee(s) as such Fund may
request, against payment of the purchase price therefor by Federal
funds bank wire transfer of same day funds to such bank account as
Funding shall designate at least two Business Days prior to the
Closing Date.
2.3. Each Fund's Representations
2.3.1. Authorization and Authority.
Each Fund represents to Funding and the Partnership that such
Fund has taken all necessary action to authorize the execution and
delivery of this Agreement and the Registration Rights Agreement
and to make each of this Agreement and the Registration Rights
Agreement the enforceable obligation it purports to be.
2.3.2. Investment Intent; Transfer of Senior Notes.
Each Fund represents to Funding and the Partnership that such
Fund is purchasing the Senior Notes being purchased by such Fund
hereunder for its own account, and with no intention of
distributing or reselling such Senior Notes or any part thereof in
any transaction that would violate the securities laws of the
United States of America or any state thereof.
If any Fund desires to offer, sell or otherwise transfer,
pledge or hypothecate all or any part of the Senior Notes (other
than pursuant to an effective registration statement under the
Securities Act or pursuant to Rule 144 or Rule 144A) such Fund
shall deliver to Funding a written opinion of Ropes & Gray or
other counsel, reasonably satisfactory in form and substance to
Funding, that there is available therefor an exemption from the
(8)
<PAGE>
registration requirements of the Securities Act. Upon original
issuance thereof, and until such time as no longer required by
law, each of the Senior Notes originally issued (and all Senior
Notes issued in exchange therefor or substitution thereof) shall
bear a legend in substantially the form set forth in Section 2.2
of the Senior Note Indenture.
At such time that any such legend is no longer required by
law to be borne by a Senior Note, Funding shall, at the request of
the holder thereof, cause such legend to be removed or replace
such certificate with an unlegended security.
2.3.3. ERISA.
Each Fund represents to Funding and the Partnership that
either (i) no part of the funds to be used to purchase the Senior
Notes to be purchased by such Fund constitutes assets allocated to
any qualified trust that contains the assets of any employee
benefit plan with respect to which Funding or the Partnership is a
party in interest or disqualified person or (ii) the use of such
assets would not constitute a non-exempt prohibited transaction.
The representations made by each Fund in the preceding clauses are
made solely in reliance upon its review of the list (a copy of
which is set forth as Schedule 2.3.3 hereto), previously furnished
to the Funds by Funding, which identifies the qualified trusts
that contain assets of any employee benefit plans with respect to
which Funding or the Partnership is a party in interest or a
disqualified person. The terms "employee benefit plan" and "party
in interest" shall have the meanings assigned to such terms in
Section 3 of ERISA, the term "disqualified person" shall have the
meaning assigned to such term in section 4975 of the Code, and the
term "qualified trust" shall mean any trust qualified under
section 401(a) of the Code in which is held the assets of any
employee benefit plan.
2.3.4. Registered Investment Company.
Each Fund represents to Funding and the Partnership that it
is registered as an investment company under the Investment
Company Act of 1940, as amended.
2.4. Failure to Deliver
2.4.1. No Closing.
Notwithstanding anything to the contrary contained in this
Agreement, this Agreement may be terminated and the transactions
contemplated hereby may be abandoned at any time prior to the
Closing:
(i) By the mutual consent of all of the parties;
(9)
<PAGE>
(ii) By the Funds at any time in the event of a breach
or default by either Funding or the Partnership in the
observance or in the timely performance of any of its
obligations hereunder which is not waived by the Funds and
which remains uncured for fifteen (15) days after receipt of
notice in writing of such breach or default;
(iii) By Funding at any time in the event of a breach
or default by any Fund in the observance or in the timely
performance of any of its obligations hereunder which is not
waived by Funding and remains uncured for fifteen (15) days
after receipt of notice in writing of such breach or default;
or
(iv) If the Closing shall not have occurred on or
before December 31, 1993, at anytime thereafter by the Funds
or Funding.
No termination under this section shall be effective unless and
until the terminating party gives written notice of such
termination to the other party.
2.4.2. Failure to Notify.
If the Closing shall not actually occur on any date on which
the Closing is scheduled to occur (the "Scheduled Closing Date")
(other than by reason of the failure of one or more of the Funds
to purchase Senior Notes duly tendered), and Funding shall have
failed to notify Ropes & Gray prior to 12:00 p.m., New York time,
on such Scheduled Closing Date that such Closing has been
postponed, Funding shall pay to each Fund by wire transfer of
immediately available funds to the bank account designated by such
Fund (as compensation for its loss of funds and administrative
costs) an amount equal to interest on the aggregate purchase price
for the Senior Notes to have been purchased by such Fund on such
Scheduled Closing Date, at the effective rate of interest equal to
11.5% per annum, less the overnight Federal funds rate, for each
day from and including such Scheduled Closing Date to and
including the earlier of the date on which such Closing actually
occurs or the date on which the amount to be paid by such Fund as
the purchase price of such Senior Notes is available to such Fund
for reinvestment, provided, that Funding shall pay to such Fund in
any case not less than one day's interest at such specified rate.
2.5. Expenses
Whether or not the Senior Notes are sold, Funding shall pay
all reasonable expenses relating to this Agreement and the other
Documents, including, but not limited to:
(10)
<PAGE>
(a) the cost of printing, reproducing and filing this
Agreement, the other Documents and any other documents
contemplated hereby or thereby;
(b) the reasonable fees and charges and disbursements of
Ropes & Gray, the Funds' special counsel, or such other counsel as
the Funds may employ on their behalf with the consent of Funding;
(c) the cost of delivering to your home office or the office
of your designee the Senior Notes purchased by the Funds at the
Closing upon the issuance thereof;
(d) all expenses, including reasonable attorneys' fees,
relating to any amendment to, or modification of, or any waiver,
or consent or preservation of rights under, this Agreement or any
of the Documents;
(e) all other expenses, including reasonable attorneys'
fees, incurred by Funding in connection with the transactions
contemplated by this Agreement and the other Documents; and
(f) all fees and expenses (including reasonable fees and
expenses of counsel) in connection with any registration or
qualification of the Senior Notes for offer and sale hereunder
under the securities or "blue sky" laws of any jurisdiction
requiring such registration or qualification or in connection with
obtaining any exemptions from such requirements.
2.6. Indemnification
2.6.1. Scope of Indemnification.
In addition to all other sums due hereunder or provided for
in this Agreement or any of the other Documents and any and all
obligations of Funding and the Partnership to indemnify the Funds
hereunder or under any of the other Documents, Funding and the
Partnership, jointly and severally, shall, without limitation as
to time, indemnify and hold harmless each Fund, its Affiliates,
and the employees, officers, directors, trustees, and agents of
each Fund and its Affiliates, including attorneys and consultants
(individually, an "Indemnified Party" and collectively, the
"Indemnified Parties"), to the fullest extent lawful, from and
against any and all losses, claims, damages, liabilities, costs
(including, without limitation, reasonable costs of preparation
and reasonable attorneys' fees) and expenses, including expenses
of investigation (collectively, "Losses"), incurred by any
Indemnified Party, as a consequence of any claim by or obligation
to a third party which arises out of or in connection with this
Agreement or the other Documents or the transactions contemplated
hereby or thereby (or any other document or instrument executed
herewith or pursuant hereto or thereto), whether or not the
(11)
<PAGE>
transactions contemplated by this Agreement or such other
Documents are consummated and whether or not any Indemnified Party
is a formal party to any Proceeding; provided, however, that
neither Funding nor the Partnership shall be liable to any
Indemnified Party for any Losses (i) resulting from a violation by
such Indemnified Party of a legal restriction on its investment
powers, or (ii) to the extent that it shall be finally determined
by a court of competent jurisdiction (which determination is not
subject to appeal or review) that such Losses arose primarily out
of the gross negligence or willful misconduct of such Indemnified
Party. Subject to the reimbursement obligation set forth in the
last sentence of Section 2.6.2 hereof, each of Funding and the
Partnership agrees promptly to reimburse any Indemnified Party for
all such Losses as they are incurred and disclosed to Funding and
the Partnership in writing by such Indemnified Party. The
obligations of each of Funding and the Partnership to each
Indemnified Party hereunder shall be separate obligations, and the
liability of each of Funding and the Partnership to any
Indemnified Party hereunder shall not be extinguished solely
because any other Indemnified Party is not entitled to indemnity
hereunder.
2.6.2. Indemnification Procedures.
If any proceeding shall be brought or asserted against any
Indemnified Party in respect of which indemnity may be sought from
Funding or the Partnership hereunder, such Indemnified Party
promptly shall notify Funding and the Partnership in writing, and
either Funding or the Partnership, or both, shall assume the
defense thereof, including the employment of counsel reasonably
satisfactory to the Indemnified Party and the payment of all
reasonable fees and expenses incurred in connection with the
defense thereof; provided, that the failure of any Indemnified
Party to give such notice shall not relieve either Funding or the
Partnership of its obligations pursuant to this Agreement, except
to the extent that it shall be finally determined by a court of
competent jurisdiction (which determination is not subject to
appeal or review) that such failure shall have materially
prejudiced Funding or the Partnership, as indemnitor.
Any such Indemnified Party shall have the right to employ
separate counsel in any such action, claim or proceeding and to
participate in the defense thereof, but the fees and expenses of
such counsel shall be at the expense of such Indemnified Party
unless: (1) Funding or the Partnership has agreed to pay such fees
and expenses; or (2) Funding or the Partnership has failed
promptly to assume the defense of such action, claim or proceeding
and to employ counsel reasonably satisfactory to such Indemnified
Party in any such action, claim or proceeding; or (3) the named
parties to any such action, claim or proceeding (including any
impleaded parties) include both such Indemnified Party and Funding
or the Partnership, and such Indemnified Party
(12)
<PAGE>
shall have been advised by counsel that a conflict of interest may
exist if the same counsel represents such Indemnified Party and
Funding or the Partnership (and in the case of any of (1), (2) or
(3), if such Indemnified Party notifies Funding and the
Partnership in writing that it elects to employ separate counsel
at the expense of Funding and the Partnership, Funding and the
Partnership shall not have the right to assume the defense thereof
and the reasonable fees and expenses of such counsel shall be at
the expense of Funding and the Partnership); provided, however,
that, so long as no conflict of interest exists between any
Indemnified Party and any other Indemnified Party, Funding and the
Partnership shall not be obligated to pay the fees and expenses of
more than one separate lead counsel (and one local counsel) for
all Indemnified Parties. Funding and the Partnership shall have
the right to employ separate counsel in, and to participate in the
defense of, any action or proceeding with respect to which it has
no right to assume the defense, but the fees and expenses of such
counsel shall be at the expense of Funding and the Partnership.
No Indemnified Party will be subject to any liability for any
settlement made without its consent (but such consent will not be
unreasonably withheld). Neither Funding nor the Partnership shall
consent to the entry of any judgment or enter into any settlement
that does not include as an unconditional term thereof the giving
by the claimant or plaintiff to the Indemnified Party of a
release, in form and substance satisfactory to the Indemnified
Party, from all liability in respect of such action, claim or
proceeding for which such Indemnified Party would be entitled to
indemnification hereunder (whether or not any Indemnified Party is
a party thereto). All fees and expenses of the Indemnified Party
(including reasonable fees and expenses to the extent incurred in
connection with investigating or preparing to defend such action
or proceeding in a manner not inconsistent with this Section 2.6)
shall be paid to the Indemnified Party, as incurred, upon written
notice thereof to Funding or the Partnership; provided, that
Funding or the Partnership may require such Indemnified Party to
undertake to reimburse all such fees and expenses to the extent it
is finally judicially determined by a court of competent
jurisdiction (which determination is not subject to appeal or
review) that such Indemnified Party is not entitled to
indemnification hereunder.
2.7. Contribution
2.7.1. Indemnification Provisions Unenforceable.
If a claim by an Indemnified Party for indemnification under
Section 2.6 hereof is found unenforceable in a final judgment by a
court of competent jurisdiction (not subject to further appeal or
review) even though the express provisions hereof provide for
indemnification in such case, then Funding and the Partnership,
jointly and severally, in lieu of indemnifying such Indemnified
(13)
<PAGE>
Party, shall contribute to the amount paid or payable by such
Indemnified Party as a result of such Losses in such proportion as
is appropriate to reflect the relative fault of Funding or the
Partnership, on the one hand, and such Indemnified Party, on the
other hand, in connection with the actions, statements or
omissions that resulted in such Losses as well as any other
relevant equitable considerations. The relative fault of Funding
or the Partnership, on the one hand, and any Indemnified Party, on
the other hand, shall be determined by reference to, among other
things, whether any action in question, including any untrue or
alleged untrue statement of a material fact or omission or alleged
omission to state a material fact, has been taken by, or relates
to information supplied by, Funding or the Partnership, on the one
hand, or such Indemnified Party, on the other hand, and the
parties' relative intent, knowledge, access to information and
opportunity to correct or prevent any such action, statement or
omission. The amount paid or payable by a party as a result of
any Losses shall be deemed to include any legal or other fees or
expenses incurred by such party in connection with any proceeding.
2.7.2. No Pro Rata Allocation.
The parties hereto agree that it would not be just and
equitable if contribution pursuant to this Section 2.7 were
determined by pro rata allocation or by any other method of
allocation that does not account for the equitable considerations
referred to in Section 2.7.1 hereof. Notwithstanding the
provisions of this Section 2.7, no Indemnified Party shall be
required to contribute any amount in excess of the amount by which
the price at which the Senior Notes sold by such Indemnified Party
and distributed to the public exceeds the amount of any damages
that such Indemnified Party has otherwise been required to pay by
reason of such statement or omission. No Person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f)
of the Securities Act) shall be entitled to contribution from any
Person who is not guilty of such fraudulent misrepresentation.
2.7.3. Survival of Obligations.
The obligations of Funding and the Partnership under Section
2.6 and this Section 2.7 shall survive the payment or prepayment
of the Senior Notes, at maturity, upon redemption or otherwise,
any transfer of the Senior Notes by the Funds, and any termination
of this Agreement or the other Documents.
2.8. Further Actions
During the period from the date hereof to the Closing Date,
Funding and the Partnership shall take all actions reasonably
necessary or appropriate to cause its representations and
(14)
<PAGE>
warranties contained in Section 5 hereof to be true and correct in
all material respects as of the Closing Date, after giving effect
to the transactions contemplated by this Agreement, as if made on
and as of such date.
SECTION 3. CLOSING CONDITIONS
3.1. Conditions to the Funds' Obligations
Each Fund's obligation to purchase and pay for the Senior
Notes to be purchased by it at the Closing shall be subject to the
satisfaction of the following conditions on or prior to the
Closing Date:
3.1.1. Opinion of Counsel
The Funds shall have received a favorable opinion, dated the
Closing Date and addressed to the Funds, from Willkie Farr &
Gallagher, counsel to Funding and the Partnership, substantially
in the form set forth in Exhibit E hereto.
3.1.2. Officers' Certificates
(a) The Funds shall have received a certificate or
certificates, dated the Closing Date and signed by the Chief
Executive Officer or the Chief Financial Officer of Funding
certifying (i) that the conditions set forth in Sections 3.1.3
through 3.1.5, 3.1.8, 3.1.9, 3.1.11 and 3.1.12 hereof have been
satisfied on and as of such date and (ii) as to such other matters
as any Fund may reasonably request.
(b) The Funds shall have received a certificate, dated the
Closing Date and signed by the Secretary of Funding, certifying
such matters as the Funds may reasonably request.
3.1.3. Issue of Senior Notes
Simultaneously with the sale to each Fund of the Senior Notes
to be purchased by it at the Closing, Funding shall have issued
and delivered and received payment for the Senior Notes to be
purchased by the other Funds hereunder.
3.1.4. Representations and Warranties True; No Event
of Default
The representations and warranties of Funding and the
Partnership contained herein and in each of the other Documents
shall be true and correct in all material respects at and as of
the Closing Date, after giving effect to the transactions
contemplated by this Agreement, the Registration Statement and the
other Documents, as if made on and as of such date. There shall
exist at and as of the Closing Date (after giving effect to
(15)
<PAGE>
the transactions contemplated by this Agreement, the Registration
Statement and the other Documents) no Default or Event of Default.
3.1.5. Compliance with Agreements
Funding and the Partnership shall have performed and complied
in all material respects with all agreements, covenants and
conditions contained in this Agreement and in the other Documents
that are required to be performed or complied with by Funding and
the Partnership on or before the Closing Date.
3.1.6. Your Purchase Permitted by Applicable Laws; Legal
Investment
Each Fund's purchase of and payment for the Senior Notes to
be purchased by it (a) shall not be prohibited by any applicable
law or governmental regulation, release, interpretation or opinion
(including, without limitation, Regulations G, T, U and X of the
Board of Governors of the Federal Reserve System), (b) shall not
subject any Fund to any penalty or other materially onerous
condition under or pursuant to any applicable law or governmental
regulation (other than the New Jersey Casino Control Act), and (c)
shall be permitted by the laws and regulations of the
jurisdictions to which you are subject. Funding shall have
delivered to each Fund factual certificates or other evidence as
each Fund shall reasonably request, in form and substance
reasonably satisfactory to such Fund, to enable such Fund to
establish compliance with this condition.
3.1.7 The Indenture, the Registration Rights Agreement and
the Security Documentation
(a) Funding, the Partnership and the Trustee shall have duly
entered into the Senior Note Indenture, and the Fund's counsel
shall have received counterparts, conformed as executed, of the
Senior Note Indenture.
(b) Funding and the Partnership shall have duly executed and
delivered to the Funds the Registration Rights Agreement.
(c) Each of Funding and the Partnership shall have duly
executed and delivered to the Trustee the Security Documentation
and each of the other Documents to which it is a party and shall
have taken such action to perfect the security interests granted
in the Security Documents as the Funds shall have requested.
3.1.8. Recapitalization Transactions.
The Recapitalization Transactions shall have been consummated
substantially on the terms set forth in the Registration
Statement.
(16)
<PAGE>
3.1.9. Consents and Permits
Funding and the Partnership shall have received all consents,
permits and other authorizations, and made all such filings and
declarations, as may be required pursuant to any Applicable Law,
for consummation of the transactions contemplated by this
Agreement and the other Documents, including the issuance and sale
of the Senior Notes to the Funds, and pursuant to all other
agreements, orders and decrees to which any of them is a party or
to which any of them is subject, in connection with the
transactions to be consummated on or prior to the Closing Date
contemplated by this Agreement and the other Documents.
3.1.10. Proceedings Satisfactory
All corporate proceedings taken in connection with the sale
of the Senior Notes and all documents relating thereto, shall be
reasonably satisfactory in form and substance to the Funds. The
Funds and Ropes & Gray shall have received copies of such
documents as they may reasonably request in connection with the
Closing, or as a basis for the Closing opinions, all in form and
substance reasonably satisfactory to the Funds and their special
counsel. Each Document shall be reasonably satisfactory in form
and substance to the Funds.
3.1.11. No Material Adverse Change
Since June 30, 1993, there shall not have occurred any
material adverse change in the operations, business, properties,
prospects, condition (financial or otherwise) or results of
operations of Funding and the Partnership, taken as a whole.
There shall have been no material adverse change in the
Partnership's ability to operate the Trump's Castle Casino Resort
as described in the Registration Statement.
3.1.12. No Material Judgment or Order
There shall not be on the Closing Date any judgment or order
of a court of competent jurisdiction or any ruling of any agency
of the Federal, state or local government that, in the reasonable
judgment of the Funds or the Funds' special counsel, would
prohibit the sale or issuance of the Senior Notes hereunder or
subject Funding, the Partnership or any Fund to any material
penalty if the Senior Notes were to be issued and sold hereunder.
3.1.13. Payment of Fees. Funding shall have paid to each
Fund (a) a funding fee in an amount equal to 1/2 of 1% of the
original principal amount of the Senior Notes issued to such Fund
and (b) an availability fee in an amount equal to 1.5% of the
original principal amount of the Senior Notes purchased by such
Fund.
(17)
<PAGE>
3.2. Conditions to the Obligations of Funding
The obligations of Funding to sell the Senior Notes to be
delivered to the Funds at the Closing shall be subject to the
satisfaction of the following conditions:
3.2.1. Sale of Senior Notes
The Funds shall have delivered payment to Funding, in respect
of the several purchases of the Senior Notes, in an original
aggregate amount of $27,000,000 (less fees and expenses).
3.2.2. Funds' Representations and Warranties
Each Fund's payment of the purchase price for the Senior
Notes purchased by it at the Closing shall constitute a
certification by such Fund that all of its representations and
warranties made herein and in the other Documents shall be true
and correct in all material respects at and as of the Closing
Date, after giving effect to the transactions contemplated by this
Agreement and the other Documents, as if made at and as of such
date.
3.2.3. No Material Judgment or Order
There shall not be on the Closing Date any judgment or order
of a court of competent jurisdiction or any ruling of any agency
of the Federal, state or local government that, in the reasonable
judgment of Funding or the Partnership, would prohibit the sale or
issuance of the Senior Notes hereunder or subject Funding or the
Partnership to any material penalty if the Senior Notes were to be
issued and sold hereunder.
3.2.4. The Sale by Funding Permitted by Applicable Laws
The sale by Funding and the Funds' payment for the Senior
Notes to be purchased by the Funds (a) shall not be prohibited by
any applicable law or governmental regulation, release,
interpretation or opinion (including, without limitation,
Regulation G, T, U or X of the Board of Governors of the Federal
Reserve System), (b) shall not subject Funding or the Partnership
to any penalty under or pursuant to any applicable law or
governmental regulation, and (c) shall be permitted by the laws
and regulations of the jurisdictions to which Funding or the
Partnership are subject.
3.2.5. Consents and Permits
Each Fund shall have received all consents, permits and other
authorizations, and made all such filings and declarations, as may
be required pursuant to any law, statute, regulation or
(18)
<PAGE>
rule (Federal, state, local and foreign), contemplated by this
Agreement and the other Documents, including the purchase of the
Senior Notes by such Fund and the consummation of the
Recapitalization Transactions, and pursuant to all other
agreements, orders and decrees to which such Fund is a party or to
which such Fund is subject, in connection with the transactions to
be consummated on or prior to the Closing Date contemplated by
this Agreement and the other Documents.
SECTION 4. THE FUNDS' SPECIAL RIGHTS. The provisions of this
Section 4 shall apply with respect to each Privately Outstanding
Note and shall remain in effect so long as any of the Senior Notes
are Privately Outstanding Notes.
4.1. Delivery Expenses
If a holder of a Privately Outstanding Note surrenders such
Senior Note to Funding or the Trustee for substitution,
replacement or exchange, Funding will pay the cost of delivering
to and from such holder's home office (or to and from the office
of such holder's designee(s)) and the office of Funding or the
Trustee, as the case may be, insured to such holder's
satisfaction, the surrendered Senior Note and each Senior Note
issued in substitution, replacement or exchange therefor.
4.2. Issue Taxes
Funding shall pay all stamp, transfer and other similar taxes
and governmental fees in connection with (a) the issuance, sale,
delivery or transfer by Funding of the Privately Outstanding
Notes, (b) the execution and delivery of the Documents, (c) any
modification of the Documents and (d) the consummation of an
Exchange Offer as defined in the Indenture. Funding will hold
each holder of Privately Outstanding Notes harmless, without
limitation as to time, against any and all liabilities with
respect to all such taxes and fees. The obligations of Funding
under this Section 4.2 shall survive the payment or prepayment of
the Senior Notes, at maturity, upon redemption or otherwise, any
transfer of the Senior Notes by the holder thereof, and the
termination of this Agreement.
4.3. Direct Payment
Funding shall instruct the Trustee to pay or cause to be paid
all interest payments with respect to any Privately Outstanding
Note (without any presentment of such Note and without any
notation of such payment being made thereon) by crediting such
amount, before 12:00 Noon, New York time, on the date such amount
is payable, by Federal funds bank wire transfer in same day
available funds, to the registered holder's account in any bank in
the United States of America as may be designated by such holder
or such nominee(s), as the case may be, not less
(19)
<PAGE>
than two Business Days prior to such payment. The initial bank
account for this purpose is set forth on the signature page
hereof. Each Fund shall be responsible for advising Funding of
any changes in its designated bank account, and Funding shall not
have any responsibility for delays in transfers because of any
registered holder's failure to advise Funding of any such change.
Each Fund agrees, before any sale, transfer or other disposition
of any Note that is a Privately Outstanding Note, to make a
notation thereon, or submit the same to the Trustee under the
Indenture for notation thereon, of the date to which interest has
been paid thereon and the amount of all redemption payments
previously made in respect thereof.
4.4. Inspection
Funding and the Partnership will permit any person designated
by any of the holders of record of the Privately Outstanding Notes
in writing and reasonably acceptable to Funding or the
Partnership, at such designating holder's expense, upon reasonable
notice during normal business hours, to visit and inspect any of
the properties (subject to reasonable security procedures
customarily required by Funding or the Partnership), the corporate
books or financial records of Funding, the Partnership and its
Subsidiaries, and to discuss their affairs, finances and accounts
with the principal officers of Funding or the Partnership and its
Subsidiaries and (with notice to the Partnership) their
independent public accountants, all at such reasonable times and
as often as such holder may reasonably request. Each such holder
agrees that any information obtained by it as a result of such
visits, inspections and discussions or pursuant to this Agreement
shall be confidential and shall be kept confidential by such
holder, unless (i) disclosure of such information is required by
law or by court or administrative order, provided that prior to
disclosing any confidential information pursuant to this clause,
such holder agrees to provide notice to Funding or the Partnership
and to reasonably cooperate with Funding or the Partnership in any
contest of such disclosure, (ii) such information becomes
available to the public other than as a result of a disclosure or
failure to safeguard by such holder, or (iii) such information
becomes available to such holder from a source, other than Funding
or the Partnership, which source such holder reasonably believes
is not subject to a confidentiality agreement which prohibited
such disclosure.
4.5. Financial Statements
4.5.1. Delivery
Funding will deliver or cause the Trustee to deliver to each
holder of Privately Outstanding Notes the financial statements and
other information described by Section 10.18 of the Senior Note
Indenture in the time periods and manner prescribed therein.
(20)
<PAGE>
4.5.2. Disclosure; Officer's Certificate
Each financial statement of Funding or the Partnership
delivered pursuant to this Section 4.5 shall disclose the amount
available for Restricted Payments (as defined in the Indenture)
pursuant to Section 10.9 of the Indenture, and shall be
accompanied by a certificate of an officer of the Company stating
that (x) such officer does not have knowledge of the existence
during or at the end of such accounting period of any condition or
event that constitutes an Event of Default or Default, or (y) if
such condition or event existed or then currently exists,
specifying the nature and period of existence thereof and what
action Funding or the Partnership has taken, is taking, or
proposes to take in connection therewith.
4.5.3. Additional Information
Funding or the Partnership shall, from time to time, deliver
such additional information regarding the financial position or
business of Funding or the Partnership as the holders of a
majority of the outstanding principal amount of the Privately
Outstanding Notes may reasonably request, subject in each case to
the confidentiality provisions set forth in Section 4.4 hereof.
4.6. ERISA Compliance
Promptly upon becoming aware of any (i) "reportable event"
(as defined in section 4043(b) of ERISA) for which the giving of
notice to the Pension Benefit Guaranty Corporation has not been
waived, (ii) "complete withdrawal" or "partial withdrawal" (within
the meaning of sections 4203 and 4205 of ERISA) from a
"Multiemployer Plan" (as defined in section 3(37) of ERISA), (iii)
"prohibited transaction" (as defined in section 406 of ERISA or
section 4975 of the Code), (iv) "accumulated funding deficiency"
(as defined in section 412 of the Code), (v) lien (within the
meaning of section 412(n) of the Code or section 302(f) of ERISA),
or (vi) requirement to provide security under section 401(a)(29)
of the Code or section 307 of ERISA in connection with any
"employee benefit plan" maintained or contributed to by the
Partnership or, with respect to clauses (i), (ii), (iv) or (v),
any of its "controlled group" (as defined in section 4001(a)(14)
of ERISA for purposes of clause (i) and (ii) and section
414(b),(c),(m) or (o) of the Code for purposes of clauses (iv) and
(v), and hereinafter referred to as "ERISA Affiliates") or any
trust created thereunder, that may reasonably be expected to,
singly or in the aggregate, result in a liability that could have
a Material Adverse Effect, the Partnership shall furnish to each
holder of Privately Outstanding Notes a written notice specifying
the nature thereof and what action the Partnership, the Internal
Revenue Service, the Pension Benefit
(21)
<PAGE>
Guaranty Corporation or any other relevant party is taking or
proposes to take with respect thereto.
4.7. No Bond Necessary
No holder of Privately Outstanding Notes shall be required to
post any bond (but such holder may be required to enter into an
indemnity agreement, at Funding's request, reasonably satisfactory
to Funding and the Trustee) if such holder certifies that a
Privately Outstanding Note has been lost, destroyed or wrongfully
taken and demands that Funding issue and the Trustee authenticates
a replacement Note.
SECTION 5. REPRESENTATIONS AND WARRANTIES
Each of Funding and the Partnership represents and warrants
to each of the Funds as follows:
5.1. Organization, Standing and Qualification
5.1.1. Organization; Standing
Funding is a corporation duly organized and validly existing
under the laws of the State of New Jersey. Funding has all
requisite power and authority to carry on its business as now
conducted and as proposed to be conducted.
The Partnership is a general partnership existing under the
laws of the State of New Jersey. The Partnership has all
requisite power and authority to own or lease, and operate its
properties and assets, and to carry on its business as now
conducted and as proposed to be conducted; and is duly qualified
or licensed to do business and is in good standing in all
jurisdictions in which it owns or leases property or in which the
conduct of its business requires it so to qualify or be licensed,
except where the failure so to qualify would not, singly or in the
aggregate, have a Material Adverse Effect.
5.1.2. Authority
Each of Funding and the Partnership has all requisite power
and authority to enter into and perform all of its respective
obligations under this Agreement and the other Documents to which
it is a party, to issue, sell, and deliver the Senior Notes, and
to carry out the transactions contemplated by this Agreement, the
Registration Statement or any other Document.
5.2. Authorization of Agreement and Other Documents
Each of Funding and the Partnership has taken all action
necessary to authorize it to enter into and perform its
obligations under each of this Agreement and the other Documents
(22)
<PAGE>
to which it is a party and to consummate the transactions
contemplated hereby and thereby (including, without limitation,
the issuance and sale of the Senior Notes). This Agreement is,
and, as of the Closing Date and each of the Documents to which
Funding or the Partnership is a party will be, a legal, valid and
binding obligation of Funding or the Partnership, as the case may
be, enforceable against Funding or the Partnership in accordance
with its terms, except as such enforcement may be subject to (i)
applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and similar laws now or hereafter
affecting creditors' rights and remedies generally and (ii)
general principles of equity (regardless of whether such
enforcement is sought in a proceeding in equity or at law) and
(iii) the New Jersey Casino Control Act and the regulations
promulgated thereunder.
5.3. No Violation
5.3.1. Existing Violations
Neither Funding nor the Partnership is (i) in violation of
its respective Charter Documents or (ii) in default in the
performance of any obligation, agreement or condition contained in
any bond, debenture, note or any other evidence of indebtedness or
in any indenture, mortgage, deed of trust or any other agreement
or instrument to which any of them is a party other than such
defaults that could not, singly or in the aggregate, reasonably be
expected to result in a Material Adverse Effect. There exists no
condition that, with the passage of time or otherwise, would
constitute a violation of such Charter Documents or a default
under any such document or instrument or result in the imposition
of any penalty or the acceleration of any indebtedness or other
obligation other than such defaults that would not, singly or in
the aggregate, result in a Material Adverse Effect.
5.3.2. Execution of Agreement
Neither the execution or delivery by Funding or the
Partnership of this Agreement or the other Documents to which it
is a party, the issuance, sale or delivery of the Senior Notes,
the performance by Funding or the Partnership of its obligations
pursuant to this Agreement and the other Documents, nor the
consummation of the transactions contemplated hereby or thereby
will conflict with, violate, constitute a breach of or a default
(with the passage of time or otherwise) under, require the consent
of any Person (other than consents already obtained) under, result
in the imposition of any penalty, or result in the imposition of a
Lien (other than pursuant to the Security Documentation and Liens
permitted under the Senior Note Indenture) on any properties of
Funding or the Partnership or an acceleration of indebtedness or
other obligation pursuant to, (i)
(23)
<PAGE>
the Charter Documents of Funding or the Partnership, (ii) any
bond, debenture, note or any other evidence of indebtedness or any
indenture, mortgage, deed of trust or any other agreement or
instrument to which Funding or the Partnership is a party or by
which it is bound or to which any of its property or assets is
subject, or (iii) any Applicable Law, except in any case where
such violation, default, breach or conflict, or the absence of
such consent or the creation of such Lien, would not, singly or in
the aggregate, result in a Material Adverse Effect.
5.4. Use of Proceeds
The proceeds from the sale of the Senior Notes shall be used
by Funding or the Partnership (i) to fund the optional redemption
at 75% of the principal amount thereof of the 9.5% Mortgage Bonds
due 1998 of Funding that remain outstanding after the consummation
of Exchange Offer which is a part of the Recapitalization
Transactions, (ii) to pay all or a portion of the transaction
costs incurred by Funding and the Partnership in consummating the
Recapitalization Transactions, (iii) to repay in full, with
accrued but unpaid interest, the $7,000,000 Midlantic Grid Note
dated May 29, 1992, and (iv) to fund an amount, estimated at the
Closing Date, sufficient to meet any obligations arising our of
statutory appraisal rights of holders of not more than 5% of the
outstanding common stock of TC/GP, Inc. arising out of the
Recapitalization Transactions.
5.5. No Default
Were the Senior Note Indenture, the Registration Rights
Agreement and the Security Documentation in effect as of the date
hereof, after giving effect to the transactions contemplated
hereby and the Recapitalization Transactions, including
application of proceeds from the sale of the Senior Notes, there
would be no Default, Event of Default thereunder or breach
thereof.
5.6. Full Disclosure
The Registration Statement, including the financial
statements included therein, complies with all applicable
provisions of the Securities Act in all material respects and
contains all statements required to be stated therein in
accordance with the Securities Act. None of the Registration
Statement, this Agreement or any of the other Documents contained,
as of its respective date, or would now contain were the
information contained therein made available to you as of the date
of this Agreement, any untrue statement of a material fact or as
of such date omitted, or now omits, to state a material fact
necessary to make the statements contained herein or therein, when
taken as a whole in light of the circumstances under which they
were made, not misleading.
(24)
<PAGE>
5.7. ERISA
The execution and delivery of this Agreement, the other
Documents and the sale of the Senior Notes to be purchased by the
Funds do not involve any "prohibited transaction" by Funding or
the Partnership. Neither Funding nor the Partnership is a "party
in interest" or a "disqualified person" with respect to a
qualified trust except as to those employee benefit plans set
forth on Schedule 2.3.3. No condition exists or event or
transaction has occurred in connection with any "employee benefit
plan" maintained or contributed to by Funding or the Partnership
or any of their ERISA Affiliates (any plan being herein referred
to as the "Pension Plan") that could result in Funding the
Partnership or any such ERISA Affiliate incurring any liability,
fine or penalty which would, singly or in the aggregate, have a
Material Adverse Effect. With respect to any Pension Plan, other
than a Multiemployer Plan, that is subject to Title IV of ERISA,
(a) the fair market value of the assets of such Pension Plan
equals or exceeds (and will equal or exceed immediately subsequent
to the consummation of the transactions contemplated hereby) the
present value of the liabilities of such Pension Plan (as
determined in accordance with the actuarial methods and
assumptions set forth in the latest actuarial report for such
Pension Plan), except where the failure so to equal or exceed
would not, singly or in the aggregate, have a Material Adverse
(25)
<PAGE>
Effect and (b) there exists (and will exist immediately subsequent
to the consummation of the transactions contemplated hereby) no
accumulated funding deficiency.
The representation of Funding and the Partnership in the
first sentence of the preceding paragraph is made in reliance
upon, and is subject to, the accuracy of each Fund's
representations in section 2.3.3 hereof.
5.8. Compliance with Laws
Neither Funding nor the Partnership is in violation of any
Applicable Law, except such violations as may not, singly or in
the aggregate, have a Material Adverse Effect. Each of Funding
and the Partnership has obtained and holds all licenses, permits,
franchises and other governmental authorizations necessary to the
ownership or operation of its properties or the conduct of its
business as currently conducted, except such failures as would
not, singly or in the aggregate, have a Material Adverse Effect.
5.9. Consents
No consent, approval or authorization of, or filing,
registration or qualification with, any Person or any governmental
or regulatory authority or body is required in connection with or
as a condition to the execution and delivery of this Agreement or
any of the other Documents or the consummation of transactions
contemplated hereby or thereby (including, without limitation, the
offer, issuance, sale or delivery of the Senior Notes at the
Closing), except for such (i) consents, approvals, authorizations,
filings, registrations or qualifications as have been made or
obtained on or before the Closing Date (and copies of which will
be delivered to the Funds upon their request) or are not required
to be made or obtained prior to the Closing Date and (ii) the
filing of mortgages, financing statements and any other security
documents pursuant to the Security Documentation, and except to
the extent that the failure to obtain any such consents,
approvals, authorizations or qualifications or to make any such
filings or registrations could not, singly or in the aggregate,
have a Material Adverse Effect.
5.10. No Violation of Regulations of Board of Governors of
Federal Reserve System
None of the transactions contemplated by this Agreement
(including, without limitation, the use of the proceeds from the
sale of the Senior Notes) shall violate or result in a violation
by Funding or the Partnership of Section 7 of the Exchange Act
including, without limitation, Regulations G, T, U and X of the
Board of Governors of the Federal Reserve System. No part of the
proceeds of the sale of the Senior Notes will be used directly or
indirectly for the purpose of purchasing or carrying any margin
securities within the meaning of Regulation G.
5.11. Private Offering
5.11.1. Sale Exempt
Assuming the correctness of the representations made by the
Funds in Section 2.3 hereof, the sale of the Senior Notes
hereunder is exempt from the registration and prospectus delivery
requirements of the Securities Act and it is not necessary in
connection with the sale of the Senior Notes to the Funds in
accordance herewith to qualify the Indenture under the Trust
Indenture Act of 1939, as amended.
5.11.2. No General Solicitation
In the case of each offer or sale of the Senior Notes, no
form of general solicitation or general advertising was used by
Funding or the Partnership or any of their officers, directors or
employees including, but not limited to, advertisements,
(26)
<PAGE>
articles, notices or other communications published in any
newspaper, magazine or similar medium or broadcast over television
or radio, or any seminar or meeting whose attendees had been
invited by any general solicitation or general advertising. No
offers were made by Funding or the Partnership or any of their
officers, directors or employees other than to persons whom the
offeror reasonably believed to be accredited investors or
sophisticated purchasers as those terms have been construed under
Section 4(2) of the Securities Act. The Funds are the sole
purchasers of the Senior Notes. No securities of the same class
as any of the Senior Notes have been issued and sold by the
Company within the six-month period immediately prior to the date
hereof. Each of Funding and the Partnership agrees that neither
it nor anyone acting on its behalf, will offer any Senior Notes so
as to bring the issuance and sale of any of the Senior Notes
within the provisions of Section 5 of the Securities Act nor offer
any similar securities for issuance or sale to, or solicit any
offer to acquire any of the same from, or otherwise approach or
negotiate with respect thereto with anyone if the sale of any of
the Senior Notes and any such securities could be integrated as a
single offering for purposes of the Securities Act.
5.12. Governmental Regulations
Except for the required approval of the Recapitalization
Transactions and the issuance and sale of the Senior Notes by the
New Jersey Casino Control Commission, which approval has been
obtained, neither Funding nor the Partnership is subject to
regulation, or will become subject to regulation upon the
consummation of the transactions contemplated by this Agreement
or any of the other Documents, under the Investment Company Act of
1940, as amended, or any Federal or state statute or regulation
limiting its ability to incur or assume indebtedness for borrowed
money or consummate the transactions contemplated hereby.
5.13. Survival of Indemnification and Contribution and
Representations and Warranties
All of the representations and warranties of Funding and the
Partnership in this Agreement, the Registration Statement and the
other Documents and in any other document, financial statement or
other instrument or certificate delivered to the Funds by or on
behalf of Funding or the Partnership in connection with this
Agreement and the Documents and the transactions contemplated
hereby and thereby shall be deemed to constitute representations
and warranties hereunder and shall be true in all material
respects at and as of the Closing Date, after giving effect to the
transactions contemplated hereby.
(27)
<PAGE>
All of the obligations to indemnify the Funds and contribute
to the Funds' losses contained in this Agreement and the other
Documents and in any other document, financial statement or other
instrument or certificate delivered to the Fund by or on behalf of
Funding or the Partnership in connection with this Agreement and
the Documents and the transactions contemplated hereby and thereby
and all of the representations and warranties of Funding or the
Partnership shall survive the execution and delivery of this
Agreement and the other Documents, any investigation by the Funds
and the issuance of the Senior Notes.
SECTION 6. MISCELLANEOUS
6.1. Notices
All notices and other communications provided for or
permitted under this Agreement shall be made in writing by hand--
delivery, next-day air courier, certified first-class mail, return
receipt requested, telex, or facsimile:
(a) if to any Fund, at its address set forth on the signature
page for such Fund, with a copy to Ropes & Gray, One International
Place, Boston, Massachusetts 02110, Attention: Robert L. Nutt,
Esq; and
(b) if to Funding or the Partnership, at its address set
forth on the first page of this Agreement, with a copy to Willkie
Farr & Gallagher, One Citicorp Center, 153 East 53rd Street, New
York, New York 10022, Attention: Thomas M. Cerabino, Esq.
All such notices and communications shall be deemed to have
been duly given: when delivered by hand, if personally delivered;
one business day after being timely delivered to a next-day air
courier; five business days after being deposited in the mail,
postage prepaid, if mailed; when answered back if telexed; and
when receipt is acknowledged by the recipient's telecopier
machine, if telecopied.
6.2. Successors and Assigns
This Agreement shall inure to the benefit of and be binding
upon the successors and assigns of each of the parties, and to the
extent set forth in Sections 2.6 and 2.7 hereof, the Indemnified
Parties and their respective heirs, personal representatives,
successors and assigns, and no other persons shall acquire or have
any right under or by virtue of this Agreement.
6.3. Amendment and Waiver
Prior to the Closing Date, this Agreement and the other
Documents may be amended, modified or supplemented, and waivers or
consents to departures from the provisions hereof may be given,
provided that the same are in writing and signed by you and the
Partnership. Thereafter, this Agreement may only be
(28)
<PAGE>
amended, and such waivers be given, with the consent of the
holders of a majority of the then outstanding aggregate principal
amount of the Senior Notes (other than Senior Notes owned or
acquired by Funding, the Partnership or any of their Affiliates).
6.4. Counterparts
This Agreement may be executed in any number of counterparts
and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of
which taken together shall constitute one and the same agreement.
6.5. Headings
The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning
hereof.
6.6. Governing Law
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO
CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT
REGARD TO PRINCIPLES OF CONFLICTS OF LAW. EACH OF FUNDING AND THE
PARTNERSHIP HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY
NEW YORK STATE COURT SITTING IN THE BOROUGH OF MANHATTAN, CITY OF
NEW YORK, OR ANY FEDERAL COURT SITTING IN THE BOROUGH OF
MANHATTAN, CITY OF NEW YORK IN RESPECT OF ANY SUIT, ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, AND
IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY,
GENERALLY AND UNCONDITIONALLY, THE JURISDICTION OF THE AFORESAID
COURTS. NOTHING HEREIN SHALL AFFECT THE RIGHT OF ANY FUND TO
SERVE PROCESS IN ANY MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL
PROCEEDINGS OR OTHERWISE PROCEED AGAINST FUNDING OR THE
PARTNERSHIP IN ANY OTHER JURISDICTION.
6.7. Entire Agreement
This Agreement, together with the other Documents and the
Senior Notes, are intended by the parties as a final expression of
their agreement and intended to be a complete and exclusive
statement of the agreement and understanding of the parties hereto
in respect of the subject matter contained herein and therein.
There are no restrictions, promises, warranties or undertakings,
other than those set forth or referred to herein and therein.
This Agreement, together with the other Documents and the Senior
Notes, supersedes all prior agreements and understandings between
the parties with respect to such subject matter.
(29)
<PAGE>
<PAGE>
6.8. Severability
If any term, provision, covenant or restriction of this
Agreement is held by a court of competent jurisdiction to be
invalid, illegal, void or unenforceable, the remainder of the
terms, provisions, covenants and restrictions set forth herein
shall remain in full force and effect and shall in no way be
affected, impaired or invalidated, and the parties hereto shall
use their best efforts to find and employ an alternative means to
achieve the same or substantially the same result as that
contemplated by such term, provision, covenant or restriction. It
is hereby stipulated and declared to be the intention of the
parties that they would have executed the remaining terms,
provisions, covenants and restrictions without including any of
such that may be hereafter declared invalid, illegal, void or
unenforceable.
If this Agreement is satisfactory to each of the Funds,
please so indicate by signing the acceptance on a counterpart of
this Agreement and return such counterpart to Funding whereupon
this Agreement will become binding between us in accordance with
its terms.
Very truly yours,
TRUMP'S CASTLE FUNDING, INC.
By:_____________________________
Name:
Title:
TRUMP'S CASTLE ASSOCIATES
By:_____________________________
Name:
General Partner
(30)
<PAGE>
<PAGE>
PURCHASE AGREEMENT SIGNATURE
EACH Fund EXECUTING THIS SIGNATURE PAGE ON BEHALF OF ONE OR MORE
MANAGED ACCOUNTS SHOULD PROVIDE THE NAME OF, AND THE REQUESTED
INFORMATION WITH RESPECT TO, EACH
MANAGED ACCOUNT.
Accepted and Agreed as of [This is a model. A
the date first above written separate signature
signature page must be
____________________________ prepared for each
Name of Fund Fund.]
By:_________________________
Name:
Title:
Address: c/o Putnam Investments
One Post Office Square
Boston, MA 02109
Telephone: (617) 292-1458
Telecopy: (617) 292-1625
Telex:
Nominee (name in which the Senior Notes Mail Payment Notices to:
are to be registered, if different
than name of Fund): Bankers Trust Company :
Private Placement
P.O. Box 998 :
Bowling Green Station :
New York, New York 10274
Muico & Co. (096120)
Tax I.D. Number: 13-6355402
Designated Physical Delivery
Bank: Bankers Trust Company
Address:P.O. Box 704, Bankers Trust Company
Church Street Station Mutual Funds
New York, New York 10015 14 Wall Street, 5th Floor
ABA No.: 021001033 New York, New York 10005
Account
No.: 99089454
Attention: Steve Bolinger
Aggregate principal amount
of Senior Notes of the Company to
be purchased by you: $_________________<PAGE>
The foregoing Note Purchase Agreement relating to the 11 1/2%
Senior Secured Notes Due 2000 of Trump's Castle Funding, Inc. is
herby accepted and agreed to this 28th day of December, 1993
PUTNAM PREMIER INCOME TRUST $____________
PUTNAM MASTER INCOME TRUST $____________
PUTNAM CAPITAL MANAGER TRUST
- PCM HIGH YIELD FUND $____________
PUTNAM MASTER INTERMEDIATE
INCOME TRUST $____________
PUTNAM DIVERSIFIED INCOME TRUST $____________
PUTNAM MANAGED HIGH YIELD TRUST $____________
PUTNAM CAPITAL MANAGER TRUST
- PCM DIVERSIFIED INCOME FUND $____________
PUTNAM HIGH YIELD ADVANTAGE FUND $____________
PUTNAM HIGH YIELD TRUST $____________
PUTNAM HIGH INCOME CONVERTIBLE
AND BOND FUND $____________
By___________________________
Name: John R. Verani
Title: Vice President
(32)
Exhibit A
Form of Senior Note Indenture
<PAGE>
Exhibit B
Form of Registration Rights Agreement
<PAGE>
Exhibit C
Form of Indenture of Mortgage and Security Agreement
(Senior Note Mortgage)<PAGE>
Exhibit D
Form of Indenture of Mortgage and Security Agreement
(Senior Guarantee Mortgage)
<PAGE>
Exhibit E
Form of Opinion of Willkie Farr & Gallagher
<PAGE>
Schedule 2.3.3
Benefit Plans
PLEDGE AGREEMENT
dated as of December 28, 1993
by
TRUMP'S CASTLE FUNDING, INC.,
a New Jersey corporation, as Pledgor
to
FIRST BANK NATIONAL ASSOCIATION,
as Trustee under the PIK Note Indenture, as Pledgee
Prepared by_________________________
John A. Ritsher, Esq.
Ropes & Gray
One International Place
Boston, Massachusetts 02110
(617) 951-7000
<PAGE>
PLEDGE AGREEMENT
This PLEDGE AGREEMENT (the "Pledge") dated as of December 28,
1993 from TRUMP'S CASTLE FUNDING, INC., a New Jersey corporation
("Pledgor"), to FIRST BANK NATIONAL ASSOCIATION, a national
banking association, as Trustee under the Indenture, as defined
below ("Pledgee") and as successor trustee to First Fidelity Bank,
National Association.
W I T N E S S E T H:
WHEREAS, Pledgor, a wholly-owned subsidiary of Trump's Castle
Associates, a New Jersey general partnership (the "Partnership"),
functions as the Partnership's financing vehicle by advancing to
the Partnership the proceeds of various issues of Pledgor's debt
securities against receipt of the Partnership's promissory notes;
and
WHEREAS, pursuant to a recapitalization of Pledgor
consummated on December 28, 1993, the outstanding 9.5% Mortgage
Bonds due 1998 of Pledgor were exchanged for (i) $242,141,304
aggregate principal amount of Pledgor's 11 3/4% Mortgage Notes due
2003 (the "Mortgage Notes"), issued pursuant to an Indenture of
even date herewith entered into by the Pledgor, as issuer, the
Partnership, as guarantor, and the Pledgee, as Indenture Trustee
(the "Mortgage Note Indenture") and (ii) up to $50,499,476
aggregate principal amount of Pledgor's Increasing Rate
Subordinated Pay-in-Kind Notes due 2005 (the "PIK Notes") (the
recipients of the PIK Notes being referred to herein as the
"Holders"), issued pursuant to a separate indenture (the "PIK Note
Indenture"), and concurrently therewith the Partnership in
exchange for the surrender of its prior promissory notes issued to
the Pledgor two new notes, each dated concurrently herewith, in
the principal amounts of $242,141,304 (the "Partnership Note"),
and $50,499,476 (the "Subordinated Partnership Note"),
respectively, the Subordinated Partnership Note, and terminated
the Old Mortgage Documents; and
WHEREAS, pursuant to the provisions of the recapitalization
and in order to secure the payment of the PIK Notes and all other
payments due to the Holders thereof or the Trustee under the PIK
Note Indenture, the Pledgor desires to enter into this Pledge
Agreement for the purpose of assigning to the Trustee all of its
right, title and interest in and to the Subordinated Partnership
Note; and
WHEREAS, certain terms defined in the PIK Note Indenture are
used herein with the meanings there provided.
(1)
<PAGE>
NOW, THEREFORE, THIS PLEDGE
FURTHER WITNESSETH:
Pledgor, for good and valuable consideration, the receipt of
which is hereby acknowledged, does hereby sell, assign and
transfer unto Pledgee and unto its successors and to its assigns
forever, for its benefit and for the benefit of the Holders, and
does hereby grant to Pledgee a security interest in and to all of
Pledgor's estate, right, title and interest in, to and under any
and all of the following described property, rights and interests
(collectively, the "Pledged Collateral"):
GRANTING CLAUSE FIRST
All right, title and interest of Pledgor in and to the
Subordinated Partnership Note, including all renewals, extensions
and modifications of the same, and, without limiting the
generality of the foregoing, the present, continuing and future
right to make claim for, collect or cause to be collected, receive
or cause to be received directly from the Partnership thereunder,
all payments of principal, interest and other sums of money
payable thereunder.
TO HAVE AND TO HOLD all of said properties, rights and
interests unto Pledgee and its successors and assigns forever.
THIS Pledge FURTHER WITNESSETH, that Pledgor hereby agrees
and covenants with Pledgee as follows:
ARTICLE I
PARTICULAR COVENANTS OF PLEDGOR
Section 1.01. Performance of Covenants. Pledgor represents,
warrants and covenants that it is duly authorized to enter into
this Pledge, and to grant and convey a lien on and security
interest in the Pledged Collateral to Pledgee in the manner and to
the extent herein set forth and that all action on its part
required for the execution and delivery of this Pledge has been
duly and effectively taken.
Section 1.02. Further Action Required.
(a) Pledgor covenants that it will, from time to time,
execute and deliver such further instruments and take such further
actions as may be required to carry out the purposes of this
Pledge.
(b) Pledgor hereby appoints Pledgee as its lawful attorney-
in-fact (such power being coupled with an interest) in the name of
Pledgor or Pledgee or both to execute any instruments or to
(2)
<PAGE>
take any actions to enforce all rights, powers and remedies of
Pledgor under or pursuant to the Pledged Collateral.
(c) Nothing contained herein shall limit the rights of
Pledgee contained in the PIK Note Indenture.
ARTICLE II
OBLIGATIONS OF PLEDGEE
Section 2.01. Continuing Obligations.
(a) Pledgee shall have no obligation, duty or liability with
respect to the Pledged Collateral or any of them (other than those
specifically assumed in its capacity as Trustee pursuant to the
PIK Note Indenture).
(b) Pledgor shall at all times remain liable to observe and
perform all of its covenants and obligations, if any, under the
Pledged Collateral, and does hereby agree to indemnify and hold
harmless Pledgee, its successors and assigns, from any liability,
loss, damage or expense it or they may incur under the Pledged
Collateral or by reason of this Pledge.
ARTICLE III
PAYMENTS
Section 3.01. Payments. All Revenues (as hereinafter
defined) due and to become due under or pursuant to the Pledged
Collateral shall be paid by the Partnership directly to Pledgee at
the address set forth in Section 6.02 hereof.
Section 3.02. Acknowledgment. The Partnership hereby joins
in the execution of this Pledge to acknowledge (i) the assignment
by Pledgor to Pledgee of Pledgor's right, title and interest in,
to and under the Pledged Collateral, (ii) the Partnership's
agreement to make payment of all Revenues under the Pledged
Collateral directly to Pledgee at the address set forth in this
Pledge, and (iii) the right of Pledgee to exercise or enforce in
its own name, in the name of Pledgor, or both, all of the rights,
powers and remedies of Pledgor in, to and under the Pledged
Collateral.
Section 3.03. Revenues. As used herein, the term "Revenues"
shall mean (a) all amounts paid or payable by the Partnership
under the Subordinated Partnership Note, and (b) the net proceeds
realized upon or as a result of the enforcement of the security
interest granted in the Pledged Collateral or under
(3)
<PAGE>
this Pledge or upon or as a result of the exercise of any right or
remedy under this Pledge.
Section 3.04. Confirmation. Pledgor hereby agrees, and the
Partnership hereby acknowledges, that the Partnership may rely
exclusively on Pledgee's directive that Pledgee is entitled to
take action under this Pledge.
ARTICLE IV
DEFAULT PROVISIONS AND REMEDIES
Section 4.01. Enforcements of Remedies.
(a) Upon the occurrence and continuance of any Event of
Default (as such term is defined in the PIK Note Indenture; each
an "Event of Default"), Pledgee may (upon the direction of the
Holders or, if the rights of the Holders would be prejudiced by
any delay in taking such action, without the direction of the
Holders), at its option, (i) proceed directly to protect and
enforce its rights and the rights of any Holders under this Pledge
or pursuant to the Pledged Collateral by such suits, actions or
special proceedings in equity or at law, or by proceedings in the
office of any board or officer having jurisdiction, either for the
specific performance of any covenant or agreement contained
herein, or in the Pledged Collateral or in aid of execution of any
power granted herein or pursuant to the Pledged Collateral or for
the enforcement of any proper legal or equitable remedy, subject
to statutory and other legal requirements, as Pledgee shall deem
most effective to protect and enforce such rights, and Pledgor
hereby appoints Pledgee as its lawful attorney-in-fact (such power
being coupled with an interest) in the name of Pledgor or Pledgee
or both to effectuate such remedies; or (ii) instruct, direct and
cause Pledgor to effectuate the foregoing on behalf of and for the
benefit of Pledgee and the Holders, it being further understood
that the Partnership joins in the execution of this Pledge in
order to acknowledge its agreement to promptly and duly execute
and deliver any and all documents and take any and all actions
required by Pledgee in order to permit Pledgee to obtain the
benefits of this Pledge, as aforesaid.
(b) Upon the occurrence and continuance of any such Event of
Default, Pledgee shall (upon the direction of the Holders or, if
the rights of the Holders would be prejudiced by any delay in
taking such action, without the direction of the Holders) be
entitled to sue for, enforce payment of and receive any and all
amounts then and at any time remaining due from Pledgor or the
Partnership for principal and interest on the Subordinated
Partnership Note, with interest on overdue payments of such
principal, as set forth in the Subordinated Partnership Note,
(4)
<PAGE>
from the date of such Event of Default to the date of such
payment, together with any and all fees, costs and expenses of
collection (including reasonable attorneys' fees and court costs),
subject to statutory and other legal requirements.
(c) Regardless of the occurrence of an Event of Default,
Pledgee may institute and maintain or cause in the name of Pledgor
or Pledgee or both to be instituted and maintained such suits and
proceedings as Pledgee may be advised by its counsel shall be
necessary and appropriate to prevent any impairment of the Pledged
Collateral, or any of them, and to protect its interests in the
Pledged Collateral, and in the revenues and other income arising
therefrom, including power to institute and maintain proceedings
to restrain the enforcement or compliance with any governmental
enactment, rule or order that may be unconstitutional or otherwise
invalid, if the enforcement of or compliance with such enactment,
rule or order would impair the security hereunder or would be
materially prejudicial to the interest of the Pledgee.
(d) Nothing contained in this Article IV is intended to grant
Pledgee any greater remedies and rights than those allowed to
Pledgor in the Pledged Collateral. In the event or any conflict
between the remedies and rights contained in any of the Pledged
Collateral and the remedies and rights contained in this Article
IV, the remedies and rights set forth in the applicable Assigned
Property shall govern.
ARTICLE V
DISCHARGE OF PLEDGE
Section 5.01. Discharge of Pledge. If Pledgor shall pay or
cause to be paid, or there shall otherwise be paid, to Pledgee
and/or the Holders, all amounts required to be paid by Pledgor
pursuant to the PIK Note Indenture and the PIK Notes, and the
conditions precedent for the PIK Note Indenture to cease,
determine and become null and void (except for any surviving
rights of transfer or exchange of the PIK Notes and any right to
receive payments of principal and interest as provided in Article
Thirteen or Section 10.3 of the PIK Note Indenture) in accordance
with Section 5.01 of the PIK Note Indenture, Pledgee shall
promptly cancel and discharge of record this Pledge and any
financing statements filed in connection herewith and execute and
deliver to Pledgor and to the Partnership all such instruments as
may be appropriate to evidence such discharge and satisfaction of
any lien or liens, and Pledgee shall pay over or deliver to
Pledgor all other moneys and securities held by it pursuant to
this Pledge, which are not required for the payment of (a)
principal and redemption price, if applicable, of and interest on,
the PIK Notes and (b) and all other amounts required to be
(5)
<PAGE>
paid by Pledgor pursuant to the PIK Note Indenture and the PIK
Notes.
ARTICLE VI
MISCELLANEOUS PROVISIONS
Section 6.01. Binding Successors and Assigns. All of the
covenants, stipulations, obligations and agreements contained
in this Pledge shall be binding upon and inure to the benefit of
Pledgor, Pledgee and the Partnership and their respective
successors and assigns.
Section 6.02. Notices.
Any request, notice, demand, authorization, direction,
request or other instrument authorized or required by this Pledge
to be given to or filed with Pledgor, Pledgee, or the Partnership
(collectively "Notices") shall be deemed given when either (i)
delivered by hand (including by overnight courier) or (ii) two
days after sending by registered or certified mail, postage
prepaid, addressed as follows:
(i) To Pledgee:
First Bank National Association
c/o First Trust National Association
180 East Fifth Street
St. Paul, Minnesota 55010
Attention: Corporate Trust and Agency Group
(ii) To Pledgor:
Trump's Castle Funding, Inc.
Trump Castle Casino Resort by the Bay
Brigantine Boulevard at Huron Avenue
Atlantic City, New Jersey 08401
Attention: Chief Executive Officer
and
The Trump Organization, Inc.
725 Fifth Avenue
New York, New York 10022
Attention: Donald J. Trump
(6)
<PAGE>
(iii) To the Partnership:
Trump's Castle Associates
Trump Castle Casino Resort by the Bay
Brigantine Boulevard at Huron Avenue
Atlantic City, New Jersey 08401
Attention: Chief Executive Officer
and
The Trump Organization, Inc.
725 Fifth Avenue
New York, New York 10022
Attention: Donald J. Trump
and
Willkie Farr & Gallagher
One Citicorp Center
153 East 53rd Street
New York, New York 10022
Attention: Thomas M. Cerabino, Esq.
(b) By Notice to the Partnership, Pledgor and or Pledgee,
given as provided above, any party may designate additional or
substitute addresses for Notices, which shall, notwithstanding
Subsection (a) above, be deemed given when received.
Section 6.04. Partial Invalidity. In case any one or more
of the provisions of this Pledge shall for any reason be held to
be illegal or invalid, such illegality or invalidity shall not
affect any other provision of this Pledge, but this Pledge shall
be construed and enforced at the time as if such illegal or
invalid provisions had not been contained herein or therein, nor
shall such illegality or invalidity or any application thereof
affect any legal and valid application herein or thereof from time
to time.
Section 6.05. Applicable Law. This Pledge shall be governed
by and construed under the internal laws of the State of New
Jersey, without giving effect to the principles of conflicts of
law.
Section 6.06. No Amendments. For so long as the PIK Notes
shall remain outstanding, this Pledge Agreement may not be
modified, amended or terminated except in accordance with the
provisions of the PIK Note Indenture.
(7)
<PAGE>
Section 6.07. Casino Control Act. Each of the provisions of
this Pledge is subject to and shall be enforced in compliance with
the provisions of the New Jersey Casino Control Act.
Section 6.08. Limitation on Liability. Notwithstanding
anything herein or any other agreement, document, certificate,
instrument, statement or omission referred to below to the
contrary, the Partnership and the Pledgor are liable hereunder
only to the extent of the assets of the Partnership and the
interest of the Pledgor in the Pledged Collateral which are
secured by the Partnership's assets and no other person or entity,
including, but not limited to, any partner, officer,
representative, committee or committee member of the Partnership
or any partner therein or of any Affiliate (as defined in the
Indenture) of the Partnership or any incorporator, officer,
director or shareholder of the Pledgor, of any corporate partner
of the Partnership, or of any corporate Affiliate of the
Partnership, or any Affiliate or controlling person or entity of
any of the foregoing, or any agent, employee or lender of any of
the foregoing or any successor, personal representative, heir or
assign of any of the foregoing, in each case past, present or as
they may exist in the future, shall be liable in any respect
(including without limitation for the breach of any
representation, warranty, covenant, agreement, condition or
indemnification or contribution undertaking contained herein or
therein) under, in connection with, arising out of or relating to
this Pledge, or any other agreement, document, certificate,
instrument or statement (oral or written) related to, executed or
to be executed, delivered or to be delivered, or made or to be
made, or any omission made or to be made, in connection with any
of the foregoing or any of the transactions contemplated in any
such agreement, document, certificate, instrument or statement.
Any agreement, document, certificate, statement or other
instrument to be executed simultaneously with, in connection with,
arising out of or relating to this Pledge or any other agreement,
document, certificate, statement or instrument referred to above,
or any agreement, document, certificate, statement or instrument
contemplated hereby shall contain language mutatis mutandis to
this paragraph and, if such language is omitted, shall be deemed
to contain such language.
6.09. Indemnification. Pledgor agrees to indemnify
Pledgee for, and to hold it harmless against, any loss,
liability or expense incurred without negligence or bad faith
on its part, arising out of or in connection with the
acceptance or administration of this Pledge, including the costs
and expenses of defending itself against any claim, or with the
exercise or performance of any of its powers or duties hereunder.
(8)
<PAGE>
<PAGE>
IN WITNESS WHEREOF, Pledgor, Pledgee, and the Partnership
have executed this Pledge as of the date first above written.
TRUMP'S CASTLE FUNDING, INC.
Attest:_____________________ By: _________________________
Secretary Donald J. Trump, President
TRUMP'S CASTLE ASSOCIATES,
a New Jersey general partnership
Attest:_____________________ By: _________________________
Secretary Donald J. Trump,
its Managing Partner
FIRST BANK NATIONAL ASSOCIATION,
as Trustee under the PIK Note
Indenture
Attest:_____________________ By: _________________________
Assistant Secretary Title:
(9)
<PAGE>
<PAGE>
STATE OF NEW YORK ss.:
COUNTY OF NEW YORK
BE IT REMEMBERED, that on _____________, 1993, before me, the
subscriber, personally appeared DONALD J. TRUMP, the Managing
Partner of TRUMP'S CASTLE ASSOCIATES, a New Jersey general
partnership, who, I am satisfied, is the person who has signed the
within instrument on behalf of such general partnership, and I
having first made known to him the contents thereof he thereupon
acknowledged that he signed and delivered the said instrument in
his capacity as such Managing Partner aforesaid, and that the
within instrument is the voluntary act and deed of said general
partnership.
______________________________
Notary Public
(11)
<PAGE>
STATE OF NEW YORK ss.:
COUNTY OF NEW YORK
BE IT REMEMBERED, that on ______________, 1993, before me,
the subscriber, personally appeared DONALD J. TRUMP, the President
of TRUMP'S CASTLE FUNDING, INC., the corporation named in the
within document, who, I am satisfied, is the person who has signed
the within instrument; and I having first made known to him the
contents thereof he acknowledged that he signed, sealed with the
corporate seal and delivered the said instrument as such officer
aforesaid; that the within instrument is the voluntary act and
deed of the corporation, made by virtue of authority from its
Board of Directors.
______________________________
Notary Public
(10)
<PAGE>
<PAGE>
STATE OF NEW YORK ss.:
COUNTY OF NEW YORK
BE IT REMEMBERED, that on December___, 1993, before me, the
subscriber, personally appeared Frank P. Leslie, an Assistant Vice
President of FIRST BANK NATIONAL ASSOCIATION, the corporation
named in the within document, who, I am satisfied, is the person
who has signed the within instrument; and I having first made
known to him the contents thereof he acknowledged that he signed,
sealed with the corporate seal and delivered the said instrument
as such officer aforesaid; that the within instrument is the
voluntary act and deed of the corporation, made by virtue of
authority from its Board of Directors.
_________________________
Notary Public
(12)
<PAGE>
Exhibit B to
Senior Note Indenture
INDENTURE OF MORTGAGE AND SECURITY AGREEMENT
(Senior Note Mortgage)
TRUMP'S CASTLE ASSOCIATES,
Mortgagor/Debtor
and
TRUMP'S CASTLE FUNDING, INC.,
Mortgagee/Secured Party
Dated as of December 28, 1993
Record and Return to:
Robert L. Nutt, Esq.
Ropes & Gray
One International Place
Boston, Massachusetts 02110-2624
<PAGE>
<PAGE>
TABLE OF CONTENTS
ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF
GENERAL APPLICATION. . . . . . . . . . . . . . . . . . . . . . 9
Section 1.1. Definitions. . . . . . . . . . . . . . . . 9
Section 1.2. Notices. . . . . . . . . . . . . . . . . . 19
Section 1.3. Form and Contents of
Documents Delivered to Mortgagee. . . . . . . . 20
Section 1.4. Compliance Certificates and Opinions.. . . 21
Section 1.5. Effect of Headings and Table of
Contents.. . . . . . . . . . . . . . . . . . . . . . 22
Section 1.6. Successors and Assigns; Amendments.. . . . 22
Section 1.7. Separability Clause. . . . . . . . . . . . 22
Section 1.8. Benefits of Mortgage.. . . . . . . . . . . 22
Section 1.9. Governing Law. . . . . . . . . . . . . . . 22
Section 1.10. Limitation on Liability. . . . . . . . . . 22
Section 1.11. Provisions Required by Senior Note
Indenture. . . . . . . . . . . . . . . . . . . . . . 23
Section 1.12. References to Mortgagee
and/or to Trustee; Rights of Trustee. . . . . . 23
Section 1.13. Mortgage Subject to Casino Control Act.. . 25
Section 1.14. Discharge of Lien. . . . . . . . . . . . . 25
Section 1.15. General Application. . . . . . . . . . . . 26
Section 1.16. Senior Note Mortgage Deemed to be
Security Agreement.. . . . . . . . . . . . . . . . . 26
Section 1.17. No Duplication of Notices or Payments. . . 26
ARTICLE TWO RELEASE; SUBORDINATION . . . . . . . . . . . . . . 27
Section 2.1. Possession by Mortgagor. . . . . . . . . . 27
Section 2.2. Obsolete Property. . . . . . . . . . . . . 27
Section 2.3. F,F&E Financing Agreements.. . . . . . . . 28
ARTICLE THREE REMEDIES . . . . . . . . . . . . . . . . . . . . 29
Section 3.1. Events of Default. . . . . . . . . . . . . 29
Section 3.2. Acceleration of Maturity;
Recision and Annulment. . . . . . . . . . . . . 31
Section 3.3. Application of Moneys Received by
Mortgagee. . . . . . . . . . . . . . . . . . . . . . 31
Section 3.4. Restoration of Rights and Remedies.. . . . 31
Section 3.5. Rights and Remedies Cumulative.. . . . . . 31
Section 3.6. Delay or Omission Not Waiver.. . . . . . . 32
Section 3.7. Undertaking for Costs. . . . . . . . . . . 32
Section 3.8. Waiver of Appraisement and Other Laws. . . 32
Section 3.9. Entry. . . . . . . . . . . . . . . . . . . 33
Section 3.10. Power of Sale; Suits for Enforcement.. . . 33
Section 3.11. Incidents of Sale. . . . . . . . . . . . . 34
Section 3.12. Receiver.. . . . . . . . . . . . . . . . . 35
Section 3.13. Suits to Protect the Trust Estate. . . . . 35
Section 3.14. Management of the Premises.. . . . . . . . 36
(i)
<PAGE>
ARTICLE FOUR CONSOLIDATION, MERGER, CONVEYANCE,
TRANSFER OR LEASE. . . . . . . . . . . . . . . . . . . . . . . 36
Section 4.1. Consolidation, Merger, Conveyance
or Transfer only on Certain Terms.. . . . . . . 36
Section 4.2. Successor Entity Substituted.. . . . . . . 36
ARTICLE FIVE COVENANTS AND REPRESENTATIONS OF MORTGAGOR . . . 36
Section 5.1. Payment of Principal, Premium and
Interest.. . . . . . . . . . . . . . . . . . . . . . 36
Section 5.2. F,F&E Financing Agreements.. . . . . . . . 37
Section 5.3. Limitations on Liens and Transfers.. . . . 37
Section 5.4. Environmental. . . . . . . . . . . . . . . 38
Section 5.5. Warranty of Leasehold Estate and Title . . 42
Section 5.6. After-Acquired Property;
Further Assurances; Recording.. . . . . . . . . 43
Section 5.7. Payment of Taxes and Certain Claims;
Maintenance of Properties; Compliance with
Legal Requirements and Insurance Requirements.. 45
Section 5.8. Permitted Contests . . . . . . . . . . . . 46
Section 5.9. Mechanics' and Other Liens.. . . . . . . . 47
Section 5.10. To Insure. . . . . . . . . . . . . . . . . 47
Section 5.11. Limitations on Building Demolition,
Alterations, Improvements and New Construction. 55
Section 5.12. Leases.. . . . . . . . . . . . . . . . . . 57
Section 5.13. Compliance Certificates. . . . . . . . . . 59
Section 5.14. To Keep Books; Inspection by Mortgagee . . 59
Section 5.15. Advances by Mortgagee. . . . . . . . . . . 60
Section 5.16. Waiver of Stay, Extension or Usury
Laws.. . . . . . . . . . . . . . . . . . . . . . . . 60
Section 5.17. Eminent Domain.. . . . . . . . . . . . . . 60
Section 5.18. Facility Leases. . . . . . . . . . . . . . 63
Section 5.19. Superior Mortgage. . . . . . . . . . . . . 67
Section 5.20. Indemnification. . . . . . . . . . . . . . 69
SCHEDULE 1 OWNED LAND. . . . . . . . . . . . . . . . . . . . 1-1
SCHEDULE 2 LEASED LAND . . . . . . . . . . . . . . . . . . . 2-1
SCHEDULE 3 EXISTING ENCUMBRANCES . . . . . . . . . . . . . . 3-1
SCHEDULE 4 FORM OF NON-DISTURBANCE AND ATTORNMENT AGREEMENT. 4-1
(ii)
<PAGE>
<PAGE>
INDENTURE OF MORTGAGE AND SECURITY AGREEMENT
INDENTURE OF MORTGAGE AND SECURITY AGREEMENT ("Senior Note
Mortgage" or "Mortgage"), dated as of December 28, 1993, between
TRUMP'S CASTLE ASSOCIATES, a New Jersey general partnership
having an office at Brigantine Boulevard and Huron Avenue,
Atlantic City, New Jersey 08401 ("Mortgagor"), and TRUMP'S CASTLE
FUNDING, INC., a New Jersey corporation having an office at
Brigantine Boulevard and Huron Avenue, Atlantic City, New Jersey
08401 ("Mortgagee").
Witnesseth:
In consideration of $10.00 in hand paid by Mortgagee to
Mortgagor and for other good and valuable consideration, the
receipt and sufficiency whereof is hereby acknowledged, and in
order to secure (i) the payment of the principal amount (and
premium, if any) of the Senior Partnership Note, in lawful money
of the United States, to be paid in accordance with the
provisions thereof (and of all modifications, extensions, and
renewals thereof), all of which provisions are hereby made an
integral part hereof as though set forth at length herein; (ii)
payment of interest (including, without limitation, interest on
all overdue principal and premium, if any) becoming due under the
provisions of the Senior Partnership Note; (iii) payment by
Mortgagor to Mortgagee of all sums expended or advanced by
Mortgagee pursuant to any term or provision of this Senior Note
Mortgage; (iv) performance of each covenant, term, condition and
agreement of Mortgagor herein or in the Senior Partnership Note
contained; (v) all costs and expenses, including, without
limitation, reasonable counsel fees and expenses as provided in
Section 3.7 of this Mortgage, which may arise in respect of the
Senior Partnership Note and this Senior Note Mortgage or of the
obligations secured hereby; and (vi) performance and observance
of all of the provisions herein contained, Mortgagor has executed
and delivered this Senior Note Mortgage and has bargained, sold,
aliened, mortgaged, pledged, released, conveyed and confirmed
unto Mortgagee and its successors hereunder and assigns forever,
and does hereby grant to Mortgagee and its successors a security
interest in and to, all of Mortgagor's right, title and interest
in, to and under all of the following described property and the
proceeds thereof:
(1)
<PAGE>
GRANTING CLAUSES
Granting Clause First
All of the property, rights, title, interest, privileges and
franchises particularly described in annexed Schedule 1 (the
"Owned Land"), which Schedule is hereby made a part of, and
deemed to be described in, this Granting Clause as fully as if
set forth in this Granting Clause at length.
Granting Clause Second
[Intentionally omitted]
Granting Clause Third
All of the property, rights, title, interest, privileges and
franchises of Mortgagor as lessee under all Facility Leases
(including, to the extent permissible to the Landlord under the
Marina Lease, the Marina Lease), together with (i) all credits,
deposits, privileges and rights of Mortgagor as lessee under the
Facility Leases, now or at any time existing, (ii) the leaseholds
and the leasehold estates created by the Facility Leases and
(iii) all of the estates, rights, titles, claims or demands
whatsoever of Mortgagor, either in law or in equity, in
possession or in expectancy, of, in and to the Facility Leases
and the Leased Facilities (including, but not limited to, the
Leased Land particularly described in annexed Schedule 2),
together with (x) any and all other, further or additional title,
estates, interests or rights which may at any time be acquired by
Mortgagor in or to the Leased Facilities or any part thereof, and
Mortgagor expressly agrees that if Mortgagor shall, at any time
prior to payment in full of all indebtedness secured hereby,
acquire fee simple title or any other greater estate to the
Leased Facilities, the lien of this Mortgage, subject to
Permitted Encumbrances, shall attach, extend to, cover and be a
lien upon such fee simple title or other greater estate and
thereupon the lien of this Mortgage, subject to Permitted
Encumbrances, shall be prior to the lien of any mortgage or deed
of trust placed on such acquired title, estate, interest or right
subsequent to the date of this Mortgage and (y) any right to
possession or statutory term of years derived from, or incident
to, the Facility Leases pursuant to Section 365(h) of the Code or
any Comparable Provision.
(2)
<PAGE>
Granting Clause Fourth
All of the rents, issues, profits, revenues, accounts,
accounts receivable and other income and proceeds (including,
without limitation, all rents, fees, charges, accounts, issues,
profits, revenues and payments for or from (a) the use or
occupancy of the rooms and other public facilities in the Hotel
and (b) the operation of the Casino) of the property subjected or
required to be subjected to the lien of this Mortgage, including,
without limitation, the property described in Granting Clauses
First, Third and Seventh (said property described in Granting
Clauses First, Third and Seventh and similar other property
subjected or required to be subjected to the lien of this
Mortgage, together with all such rents, issues, profits,
revenues, accounts, accounts receivable and other income and
proceeds therefrom is hereinafter collectively referred to as the
"Premises") and all of the estate, right, title and interest of
every nature whatsoever of Mortgagor in and to the same and every
part thereof.
Granting Clause Fifth
All of the rights of Mortgagor as lessor under the Leases in
effect on the date of execution of this Mortgage or hereafter
entered into by Mortgagor, including modifications, extensions
and renewals of all of the same, and the immediate and continuing
right as security after the occurrence, and during the
continuance, of an Event of Default, to (a) make claim for,
collect, receive and receipt for (and to apply the same as
provided herein) any and all rents, fees, charges, income,
revenues, issues, profits, security and other sums of money
payable or receivable thereunder or pursuant thereto, and all
proceeds thereof, whether payable as rent, insurance proceeds,
condemnation awards, security or otherwise and whether payable
prior to or subsequent to the Stated Maturity of the Senior
Partnership Note, (b) receive and give notices and consents
thereunder, (c) bring actions and proceedings thereunder or for
the enforcement thereof, (d) make waivers and agreements
thereunder or with respect thereto, (e) take such action upon the
happening of a default under any Lease, including the
commencement, conduct and consummation of any proceedings at law
or in equity as shall be permitted by any provision of any Lease,
and (f) do any and all things which Mortgagor or any lessor is or
may become entitled to do under the Leases; provided that, except
as may be set forth to the contrary herein, the assignment made
by this Granting Clause Fourth shall not impair or diminish any
right, privilege or obligation of Mortgagor under the Leases nor
shall any such obligation be imposed upon Mortgagee.
(3)
<PAGE>
Granting Clause Sixth
Without limiting the generality of the provisions of
Granting Clause Fourth, all of Mortgagor's rights, title,
interest, privileges and franchises in and to the following, now
owned or hereafter acquired by Mortgagor, to the extent of
Mortgagor's interest therein and thereto and to the extent
assignable (collectively, "Operating Assets"):
(a) bookings for the use of guest rooms, banquet
facilities, meeting rooms at the Casino Hotel or at any other
improvements now or hereafter located on any of the Land;
(b) all contracts respecting utility services for, and the
maintenance, operations, or equipping of, the Premises, including
guaranties and warranties relating thereto;
(c) the Permits;
(d) all contract rights, leases (whether with respect to
real property, personal property or both real and personal
property), concessions, trademarks, trade names, service marks,
logos, copyrights, warranties and other items of intangible
personal property, and any and all good will associated with the
same, relating to the ownership or operation of the Casino Hotel
or of any other improvements now or hereafter located on any of
the Land, including, without limitation, (1) employment contracts
with officers and other employees of Mortgagee, (2) telephone and
other communication numbers, (3) all software licensing
agreements as are required to operate computer software systems
at the Casino Hotel or at any other improvements now or hereafter
located on any of the Land and books and records relating to the
software programs and (4) lessee's interest under leases of
Tangible Personal Property;
(e) all contracts, purchase orders, requisitions and
agreements entered into by or on behalf of Mortgagor or which
have been assigned to Mortgagor, for the design, construction,
and furnishing of the Casino Hotel or of any other improvements
now or hereafter located on any of the Land, including, without
limitation, architect's agreements, engineering agreements,
construction contracts, consulting agreements and agreements or
purchase orders for all items of Tangible Personal Property and
payment and performance bonds in favor of Mortgagor in connection
with the Trust Estate (and all warranties and guarantees
thereunder and warranties and guarantees of any subcontractor and
bond issued in connection with the work to be performed by any
subcontractor);
(f) the following personal property (the "Tangible Personal
Property") now or hereafter acquired by Mortgagor (directly or by
(4)
<PAGE>
way of lease) which is located on, or to be located on, or which
are in use or held in reserve storage for future use in
connection with the gaming or other operations of, the Casino
Hotel or of any other improvements now or hereafter located on
any of the Land, which is on hand or on order whether stored
on-site or off-site:
(i) all furniture, furnishings, equipment, machinery,
lighting, apparatus (both interior and exterior),
appliances, fixtures and fittings and other articles of
tangible personal property;
(ii) all slot machines, electronic gaming devices,
crap tables, blackjack tables, poker tables, roulette
tables, baccarat tables, big six wheels and other gaming
tables, and all furnishings and equipment to be used in
connection with the operation thereof;
(iii) all cards, dice, gaming chips and plaques,
tokens, chip racks, dealing shoes, dice cups, dice sticks,
layouts, paddles, roulette balls and other consumable
supplies and items;
(iv) all china, glassware, linens, kitchen utensils,
silverware and uniforms;
(v) all consumables and operating supplies of every
kind and nature, including, without limitation, accounting
supplies, guest supplies, forms, printing, stationery, food
and beverage stock, bar supplies, laundry supplies and
brochures to existing purchase orders;
(vi) all upholstery material, carpets and rugs, beds,
bureaus, chiffonniers, chairs, chests, desks, bookcases,
tables, curtains, hangings, pictures, divans, couches,
ornaments, bars, bar fixtures, safes, stoves, ranges,
refrigerators, radios, televisions, clocks; electrical
equipment, lamps, mirrors, heating and lighting fixtures and
equipment, ice machines, air conditioning machines, fire
prevention and extinguishing apparatus, laundry machines,
and all similar and related articles used in bedrooms,
sitting rooms, bathrooms, boudoirs, halls, closets,
kitchens, dining rooms, offices, lobbies, basements and
cellars in the Casino Hotel and in any other improvements
now or hereafter located on any of the Land;
(vii) all sets and scenery, costumes, props and other
items of tangible personal property on hand or on order for
use in the production of shows in any showroom, convention
space, exhibition hall, or sports and entertainment arena of
the Casino Hotel or in any other improvements now or
hereafter located on any of the Land; and
(5)
<PAGE>
(viii) all cars, limousines, vans, buses, trucks and
other vehicles owned or leased by Mortgagor for use in
connection with the operation of the Premises, together with
all equipment, parts and supplies used to service, repair,
maintain and equip the foregoing;
(g) all drawings, designs, plans and specifications
prepared by architects, engineers, interior designers, landscape
designers and any other professionals or consultants for the
design, development, construction and/or improvement of the
Casino Hotel, or for any other development of the Premises, as
amended from time to time;
(h) any administrative and judicial proceedings initiated
by Mortgagor, or in which Mortgagor has intervened, concerning
the Premises, and agreements, if any, which are the subject
matter of such proceedings;
(i) any customer lists utilized by Mortgagor including
lists of transient guests and restaurant and bar patrons and
"high roller" lists; and
(j) all of the good will in connection with the assets
listed in this Granting Clause Sixth and in connection with the
operation of the Premises.
Except as may be set forth to the contrary herein, the
assignment made by this Granting Clause Sixth shall not impair or
diminish any right, privilege or obligation of Mortgagor with
respect to the Operating Assets, nor shall any such obligation be
imposed on Mortgagee.
Granting Clause Seventh
(a) All of Mortgagor's rights, title, interest, privileges
and franchises, if any, in and to all buildings, structures
(surface and subsurface), and other improvements of every kind
and description, including, without limitation, all pedestrian
bridges, entrance-ways, parking lots, plazas, curb-cuts,
walkways, driveways and landscaping and such fixtures as
constitute real property, now or hereafter erected or placed on
the Land or on any other land or any interest therein hereafter
acquired by Mortgagor and all of Mortgagor's rights, title,
interest, privileges and franchises in and to all fixtures and
articles of personal property now or hereafter attached to or
contained in and used in connection with such buildings and
improvements, including, without limitation, all apparatus,
furniture, furnishings, lighting equipment, electronic
billboards, machinery, motors, elevators, fittings, radiators,
cooking ranges, ice boxes, ice machines, printing presses,
(6)
<PAGE>
mirrors, bars, mechanical refrigerators, furnaces, coal and oil
burning apparatus, wall cabinets, machinery, generators,
partitions, steam and hot water boilers, lighting and power
plants, pipes, plumbing, radiators, sinks, bath tubs, water
closets, gas and electrical fixtures, awnings, shades, screens,
blinds, dishwashers, freezers, vacuum cleaning systems, office
equipment and other furnishings, and all plumbing, heating,
lighting, cooking, laundry, ventilating, incinerating,
air-conditioning and sprinkler equipment or other fire prevention
or extinguishing apparatus and material, and fixtures and
appurtenances thereto; and all renewals or replacements thereof
or articles in substitution therefor, whether or not the same are
or shall be attached to the Land, any other land or any interest
therein hereafter acquired by Mortgagor or to any such buildings
and improvements thereon, in any manner.
(b) All of Mortgagor's rights, title, interest, privileges
and franchises in and to all other property, real, personal or
mixed (other than Excepted Property), of every kind and
description and wheresoever situate, now owned or which may be
hereafter acquired by Mortgagor, it being the intention hereof
that all property, interests, rights, privileges and franchises
now owned by Mortgagor or acquired by Mortgagor after the date
hereof (other than Excepted Property) shall be as fully embraced
within and subjected to the lien hereof as if such property were
specifically described herein.
* * *
TOGETHER with all of Mortgagor's right, title and interest
in and to any and all mineral and water rights and any title or
reversion, in and to the beds of the ways, streets, avenues and
alleys adjoining the Premises to the center line thereof and in
and to all strips, gaps and gores adjoining the Premises on all
sides thereof; and
TOGETHER with any and all of Mortgagor's right, title and
interest in and to the tenements, hereditaments, easements,
appurtenances, passages, waters, water courses, riparian rights,
other rights, liberties and privileges thereof or in any way now
or hereafter appertaining to the Premises, including, without
limitation, any other claim at law or in equity as well as any
after-acquired title, franchise or license and the reversion and
reversions and remainder and remainders thereof; and
TOGETHER with any and all awards and other compensation
heretofore or hereafter to be made to the present and all
subsequent owners of the Trust Estate for any taking by eminent
domain, either permanent or temporary, of all or any part of the
Trust Estate or any easement or appurtenances thereof, including
severance and consequential damage and change in grade of
(7)
<PAGE>
streets, all in accordance with and subject to the provisions of
the Superior Instrument Requirements and Section 5.17; and
TOGETHER with any and all proceeds of any unearned premiums
on any insurance policies described in Section 5.10, and the
right to receive and apply the proceeds of any insurance,
judgments, or settlements made in lieu thereof, for damage to the
Trust Estate or otherwise, all in accordance with and subject to
the provisions of Section 5.10 and the Superior Instrument
Requirements; and
TOGETHER with all proceeds of every kind and nature, and all
products of every kind and nature, of any of the foregoing
property, rights, title, interests, privileges, franchises and
other assets described in Granting Clauses First through Seventh
or in any of the other clauses thereafter.
The foregoing shall include, whether or not specifically
identified in one or more instances, all such property, rights,
title, interests, privileges, franchises and other assets now
owned and/or hereafter existing.
EXCLUDING, with respect to all of the hereinabove granted
property, rights, title, interest, privileges and franchises
described in Granting Clauses First through Seventh or in the six
immediately preceding paragraphs, all Excepted Property now or
hereafter existing.
TO HAVE AND TO HOLD all of said Premises, Leases, Facility
Leases, Operating Assets, properties, options, credits, deposits,
rights, privileges and franchises of every kind and description,
real, personal or mixed, hereby and hereafter granted, bargained,
sold, aliened, assigned, transferred, hypothecated, pledged,
released, conveyed, mortgaged, or confirmed as aforesaid, or
intended, agreed or covenanted so to be, together with all the
appurtenances thereto appertaining (said Premises, Leases,
Facility Leases, Operating Assets, properties, options, credits,
deposits, rights, privileges and franchises, other than Excepted
Property now or hereafter existing, being herein collectively
called the "Trust Estate") unto Mortgagee and its successors and
assigns forever.
SUBJECT, HOWEVER, on the date hereof, to the Midlantic
Mortgage and Existing Encumbrances (including the Superior
Mortgages) and, after the date hereof, to Permitted Encumbrances
(other than Restricted Encumbrances).
PROVIDED, FURTHER, that the lien of this Senior Note
Mortgage upon the Trust Estate shall rank pari passu with the
lien of the Senior Guarantee Mortgage.
(8)
<PAGE>
BUT IN TRUST, NEVERTHELESS, for the ratable benefit and
security of the Holders.
UPON CONDITION that, until the happening of an Event of
Default, Mortgagor shall be permitted to possess and use the
Trust Estate, and to receive and use the rents, issues, profits,
revenues and other income of the Trust Estate.
AND IT IS HEREBY COVENANTED AND DECLARED that the Trust
Estate is to be held and applied by Mortgagee, subject to the
further covenants, conditions and trusts hereinafter set forth,
and Mortgagor does hereby covenant and agree to and with
Mortgagee, for the ratable benefit of the Holders, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF
GENERAL APPLICATION
Section 1.1. Definitions.
For all purposes of this Senior Note Mortgage, except as
otherwise expressly provided or unless the context otherwise
requires:
(a) the terms defined in this Article One have the meanings
assigned to them in this Article One and include the plural as
well as the singular;
(b) all accounting terms not otherwise defined herein have
the meanings assigned to them, and all computations herein
provided for shall be made, in accordance with generally accepted
accounting principles in effect on the date hereof consistently
applied; and
(c) the words "herein," "hereof" and "hereunder" and other
words of similar import refer to this Mortgage as a whole and not
to any particular Article, Section or other subdivision.
"Affiliate" has the meaning set forth in Section 1.1 of the
Senior Note Indenture.
"Alterations" has the meaning set forth in Section 5.11.
"Appraised Value" means the fair market value of the Casino
Hotel, and of all other property now or hereafter owned or leased
by Mortgagor and subject to the lien of this Mortgage, as
determined by an Independent Appraiser on the basis of an
appraisal in conformity with the criteria set forth at 12 C.F.R.
ss 564.4 or such similar published policy or regulation as from
time to time governs real estate related transactions by
(9)
<PAGE>
institutions regulated by the Office of Thrift Supervision;
provided, that the value of the Casino Hotel and such other
property shall not include the value of (i) any furniture,
fixtures and equipment therein to the extent of the Outstanding
Amount of any Indebtedness secured by any F,F&E Financing
Agreements with respect thereto and (ii) any Excepted Property.
"Appraiser" means a "state certified appraiser" as defined
in 12 C.F.R. ss 564.2(i) who is (i) of recognized standing among
appraisers of properties similar to the Casino Hotel and (ii)
experienced in the appraisals of properties of a similar size and
scope to that of the Casino Hotel, selected by Mortgagor.
"Architect" means an Independent Person selected by
Mortgagor and licensed as an architect in the State of New
Jersey.
"Casino" means that portion of the Casino Hotel used for
gaming and related activities.
"Casino Hotel" means the casino and hotel complex currently
known as the "Trump's Castle Casino Resort" in Atlantic City, New
Jersey, and ancillary structures and facilities located on the
Premises (other than the property covered by the Marina Lease)
and all furniture, fixtures and equipment at any time contained
therein in each case owned by or leased to Mortgagor.
"Casualty" means any act or occurrence of any kind or nature
which results in damage, loss or destruction to any buildings or
improvements on the Premises and/or Tangible Personal Property.
"Certificate of Appraised Value" means the certificate of an
Independent Appraiser stating the Appraised Value.
"Code" means the Federal Bankruptcy Code, Title 11 of the
United States Code, as amended.
"Company" means Trump's Castle Funding, Inc., a corporation
incorporated under the laws of the State of New Jersey, or any
other obligor on the Senior Secured Notes (other than Mortgagor).
"Comparable Provision" has the meaning set forth in
Section 5.18.
"Default" means any event which is, or after notice or lapse
of time or both would be, an Event of Default. Without limiting
the generality of the previous provisions of this definition, the
term "Default" shall include the occurrence of an event as to
which a notice of default has been given to Mortgagor under any
Facility Lease by a Lessor or under the Superior Mortgage by the
holder thereof, which has not yet been cured.
(10)
<PAGE>
"Depositary" means an Independent entity to which insurance
proceeds or condemnation awards are paid to be held in trust for
Restoration pursuant to the provisions of a Superior Mortgage.
"Event of Default" has the meaning set forth in Section 3.1.
"Excepted Property" means:
(1) the personal property owned by lessees under Leases and
the personal property of any Hotel guests;
(2) trade names, intellectual property rights and other
rights and interests in and to the use of the terms "Trump's
Castle," "Trump," "Trump's Castle Casino Resort", "Donald J.
Trump," "Donald Trump" or related variations thereof;
(3) any property deemed to be Excepted Property pursuant to
the provisions of Section 2.3;
(4) counterchecks, cash and any other property to the
extent that the granting of a security interest therein is
prohibited by the New Jersey Casino Control Act and the
regulations promulgated thereunder; and
(5) any property acquired pursuant to secured purchase-
money indebtedness permitted under clause "i" of the definition
of "Permitted Indebtedness" in the Senior Note Indenture.
"Existing Encumbrances" means the matters set forth in
Schedule 3 hereto, including, but not limited to, the instruments
securing, evidencing, or governing the Midlantic Term Loan.
"Facility Leases" means, collectively:
(1) the Marina Lease;
(2) any leases other than Capital Lease Obligations and the
Marina Lease where Mortgagor is tenant or sub-tenant; provided,
however, that the aggregate fixed rental payments paid or accrued
for any period of four consecutive fiscal quarters commencing
after the date hereof under all such leases (including payments
required to be made by the lessee in respect of taxes and
insurance, whether or not denominated as rent), shall not exceed
for such period (a) $2,000,000 or (b) $7,500,000 following the
time at which the Partnership shall have achieved EBITDA for any
period of four consecutive quarters in an amount not less than
$45.0 million; provided, further, that the Mortgagor may
designate certain such leases which are not material to the
operations of the Casino Hotel and which have aggregate fixed
rental payments (including payments required to be made by the
lessee in respect of taxes and insurance, whether or not
denominated as rent) not exceeding an aggregate of $300,000 per
(11)
<PAGE>
year to be excluded from the leases covered by this clause (2);
and
(3) any and all modifications, extensions and renewals of
the leases described in clauses (1) and (2) above, to the extent
the same are permitted under Section 5.18.
"F,F&E Financing Agreement" has the meaning set forth in
Section 1.1 of the Senior Note Indenture.
"Full Insurable Value" means the actual replacement cost
(excluding the costs of foundation, footing, excavation, paving,
landscaping and other similar, noninsurable improvements) of the
insurable properties in question.
"Holder" has the meaning set forth in Section 1.1 of the
Senior Note Indenture.
"Hotel" means that portion of the Casino Hotel not included
within the Casino.
"Impositions" has the meaning set forth in Section 5.7.
"Indebtedness" has the meaning set forth in Section 1.1 of
the Senior Note Indenture.
"Independent" when used with respect to any specified Person
means such a Person who (i) is in fact independent, (ii) does not
have any direct financial interest or any material indirect
financial interest in Mortgagor or in any other obligor upon the
Senior Partnership Note or in any Affiliate of Mortgagor or of
such other obligor and (iii) is not connected with Mortgagor or
such other obligor or any Affiliate of Mortgagor or such other
obligor as an officer, employee,, promoter, underwriter, trustee,
partner, director or person performing similar functions.
Whenever it is herein provided that any Independent Person's
opinion or certificate shall be furnished to Mortgagee, such
Person shall be appointed by a Mortgagor order and such opinion
or certificate shall state that the signer has read this
definition and that the signer is Independent within the meaning
thereof. A Person who is performing or who has performed
services as an independent contractor to any specified Person
shall not be considered not Independent merely by reason of the
fact that such Person is performing or has performed such
services.
"Insurance Amount" has the meaning set forth in Section
5.10(a)(i).
"Insurance Requirements" means all terms of any insurance
policy covering or applicable to the Trust Estate or any part
thereof, all requirements of the issuer of any such policy, and
(12)
<PAGE>
all orders, rules, regulations and other requirements of the
National Board of Fire Underwriters (or any other body exercising
similar functions) applicable to or affecting the Trust Estate or
any part thereof or any use or condition of the Trust Estate or
any part thereof.
"Insurance Trustee" means the Trustee or, if the Trustee so
elects, any bank, trust company or insurance company with a net
worth in excess of $100,000,000, designated by the Trustee.
"Insurer" means (i) an insurance company or companies
selected by Mortgagor authorized to issue insurance in the State
of New Jersey with an A.M. Best rating level of A minus or better
and an A.M. Best financial size category of VIII or better or
(ii) Lloyds of London so long as its financial capacity is not
such that prudent owners of first-class casino and hotel
complexes in Atlantic City, New Jersey would be unwilling to
accept Lloyds of London; provided, that with respect to the
insurance required to be maintained pursuant to Section
5.10(a)(i), up to 1.0% of the total amount of such insurance in
excess of the first $10,000,000 thereof may be maintained with an
insurance company or companies not meeting the foregoing A.M.
Best rating level and/or A.M. Best financial size categories; and
provided, further, that Mortgagor shall in all events use
commercially reasonable efforts to obtain insurance issued by
insurance companies having an A.M. Best rating level of better
than A minus.
"Land" means, collectively, the Owned Land and the Leased
Land.
"Lease" means each lease or sublease (made by Mortgagor, as
lessor or sublessor, as the case may be) of any space in any
building or buildings, an interest in which building or buildings
constitutes a part of the Trust Estate, including every agreement
relating thereto or entered into in connection therewith and
every guarantee of the performance and observance of the
covenants, conditions and agreements to be performed by the
lessee or sublessee under any such lease or sublease. For
purposes hereof, the term "Lease" shall include any license
agreement, concession agreement or other occupancy agreement.
Notwithstanding the foregoing, the term "Lease" shall not include
any transient room rentals.
"Leased Facilities" means, collectively, the Leased Land and
any buildings and improvements now or hereafter located thereon.
"Leased Land" means, collectively, the Marina Lease and any
other land that is now or hereafter subject to a Facility Lease.
"Legal Requirements" means all laws, statutes, codes, acts,
ordinances, orders, judgments, decrees, injunctions, rules,
(13)
<PAGE>
regulations, permits, licenses, authorizations, directions and
requirements (including, without limitation, the New Jersey
Casino Control Act, the New Jersey Environment Cleanup
Responsibility Act and the New Jersey Spill Compensation and
Control Act of 1976) of all governments, departments,
commissions, boards, courts, authorities, agencies, officials and
officers, of governments, federal, state and municipal
(including, without limitation, the New Jersey Department of
Environmental Protection and Energy, the Atlantic City Bureau of
Investigations, the Division of Gaming Enforcement of the State
of New Jersey, and the Casino Control Commission of the State of
New Jersey), foreseen or unforeseen, ordinary or extraordinary,
which now are or at any time hereafter become applicable to the
Trust Estate or any part thereof, or any of the adjoining
sidewalks, or any use or condition of the Trust Estate or any
part thereof, including, without limitation, the use of the
Casino Hotel as a gaming or gambling facility.
"Lessors" means the lessors under the Facility Leases.
"Marina Lease" means the lease agreement made September 1,
1990 between the State of New Jersey, as Landlord, and Mortgagor,
as tenant, respecting property known as the Senator Frank S.
Farley State Marina, Atlantic City, New Jersey, being designated
as a portion of Block B-4, Lot 11 on the tax map of the City of
Atlantic City, Atlantic County, New Jersey, as more particularly
described on Schedule A appended hereto and made a part hereof,
together with all amendments, restatements, extensions and
renewals of said lease agreement.
"Maturity" when used with respect to any Indebtedness means
the date on which the principal (or any portion thereof) of such
Indebtedness becomes due and payable as therein or herein
provided, whether at the Stated Maturity, upon acceleration,
optional redemption, required repurchase, scheduled principal
payment or otherwise.
"Midlantic Mortgage" means the Amended and Restated
Indenture of Mortgage, dated as of May 29, 1992, from the
Mortgagor to Midlantic National Bank, the Amended and Restated
Assignment of Leases and Rents, dated as of May 29, 1992, between
the same parties, and the Amended and Restated Assignment of
Operating Assets, dated as of May 29, 1992, between the same
parties and all amendments, restatements, extensions and renewals
thereof.
"Midlantic Term Loan" has the meaning set forth in
Section 1.1 of the Mortgage Note Indenture.
"Mortgage Documents" has the meaning set forth in
Section 1.1 of the Mortgage Note Indenture, except that the term
(14)
<PAGE>
"Mortgage Documents" shall not include the Pledge Agreement (as
defined in said Section 1.1).
"Mortgage Note Indenture" means that certain indenture of
even date herewith among the Company, as issuer, the Mortgagor,
as guarantor, and First Bank National Association, as trustee, as
it may be amended from time to time, relating to the Company's
Mortgage Notes.
"Mortgage Notes" means the 11-3/4% Mortgage Notes due 2003
issued by the Company pursuant to the Mortgage Note Indenture.
"Mortgagee" has the meaning set forth in Section 1.12.
"Mortgagor" means the Person named as "Mortgagor" in the
first paragraph of this instrument until a successor entity shall
have become such pursuant to the applicable provisions of this
Mortgage, and thereafter, except to the extent otherwise
contemplated by Section 4.2, "Mortgagor" shall mean such
successor entity exclusively.
"Mortgagor Order" and "Mortgagor Request" mean,
respectively, a written order or request signed with a Mortgagor
Signature and delivered to Mortgagee.
"Mortgagor Signature" means the signature of the President
or a Vice President or a general partner of Mortgagor.
"Mortgagor's Certificate" means a certificate signed with a
Mortgagor Signature and delivered to Mortgagee.
"Notices" has the meaning set forth in Section 1.2.
"Operating Assets" has the meaning set forth in Granting
Clause Sixth.
"Opinion of Counsel" means a written opinion of counsel who
may (except as otherwise expressly provided in this Mortgage) be
an employee of Mortgagor or of an Affiliate of Mortgagor.
"Original Policy" means the ALTA Loan Policies of
Title Insurance issued by First American Title Insurance Company,
Chicago Title Insurance Company and Commonwealth Land Title
Insurance Company, pursuant to Title Commitment. No. F237584L,
dated the date hereof.
"Outstanding Amount" has the meaning set forth in
Section 1.1 of the Senior Note Indenture.
"Owned Land" has the meaning set forth in Granting Clause
First.
(15)
<PAGE>
"Permits" means all licenses, franchises, authorizations,
statements of compliance, certificates of operation, certificates
of occupancy and permits required for the lawful ownership,
occupancy, operation and use of all or a material portion of the
Premises whether held by Mortgagor or any other Person (which may
be temporary or permanent) (including, without limitation, those
required for the use of the Casino Hotel as a licensed casino
facility), in accordance with all applicable Legal Requirements.
"Permitted Encumbrances" means:
(1) liens for taxes, assessments, or governmental charges
not yet due and payable, or if due and payable not
delinquent, to the extent that any fine, penalty, interest or
cost may be added for nonpayment thereof;
(2) Existing Encumbrances (including the Midlantic
Mortgage);
(3) F,F&E Financing Agreements permitted by the Senior Note
Indenture;
(4) the liens of the Trustee provided for in Section 6.6 of
the Senior Note Indenture and of the trustees under the
corresponding sections of the Mortgage Note Indenture and the PIK
Note Indenture;
(5) any lien or encumbrance which, under the provisions of
Section 5.7, constitutes a Permitted Encumbrance;
(6) Restricted Encumbrances;
(7) Working Capital Facility Mortgage;
(8) the Liens of the Senior Note Mortgage Documents (as
defined in the Senior Notes Indenture) and the Mortgage
Documents, and any rights granted as provided therein;
(9) any lien or encumbrance permitted under Section 5.3 of
this Mortgage;
(10) any lien or encumbrance securing purchase money
indebtedness permitted by the Senior Note Indenture;
(11) modifications, refinancings, extension, renewals or
replacements, in whole or in part, of the liens described in
clauses (2) through (10) of this definition to the extent
permitted by Section 5.19 hereof and the Senior Note Indenture;
and
(12) any Facility Lease now existing or hereafter entered
into.
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"Person" means any individual, corporation, limited or
general partnership, joint venture, association, joint stock
company, trust, unincorporated organization or any other entity
or government or any agency or political subdivision thereof.
"PIK Note Indenture" means that certain indenture of even
date herewith among the Company, as issuer, the Mortgagor, as
guarantor, and First Bank National Association, as trustee, as it
may be amended from time to time, relating to the Company's PIK
Notes.
"PIK Notes" means the Company's 13 7/8% Pay-in-Kind Notes
due 2005.
"Premises" has the meaning set forth in Granting Clause
Fourth.
"Restoration" has the meaning set forth in
Section 5.10(e)(iii).
"Restricted Encumbrances" means any Leases permitted by and
made in accordance with Section 5.12 of this Mortgage.
"Securities Act" has the meaning set forth in
Section 1.1 of the Senior Note Indenture.
"Senior Assignment Agreement" means the Senior Assignment
Agreement of even date herewith made by Trump's Castle Funding,
Inc. to the Trustee and acknowledged by Mortgagor, providing for
the assignment to the Trustee of the Senior Partnership Note and
this Senior Note Mortgage.
"Senior Guarantee" means the guarantee by Mortgagor of the
Company's Indenture Obligations (as defined in the Senior
Indenture) pursuant to Article Fourteen of the Senior Indenture.
"Senior Guarantee Mortgage" means the Indenture of Mortgage
and Security Agreement of even date herewith between the Trustee,
as mortgagee, and Mortgagor, as mortgagor, securing the Senior
Guarantee and evidencing a lien pari passu with this Mortgage.
"Senior Indebtedness" means Indebtedness evidenced by the
Midlantic Term Loan, the Senior Partnership Note, the Senior
Guarantee and the Working Capital Facility and any amendments,
extensions, renewals, replacements or restatements of any of the
foregoing to the extent permitted by the Senior Note Indenture.
"Senior Note Indenture" means that certain indenture of even
date herewith between the Mortgagee, as issuer, the Mortgagor, as
guarantor, and First Bank National Association, as trustee,
relating to the Senior Notes.
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"Senior Note Mortgage" means this Indenture of Mortgage and
Security Agreement, which evidences a lien pari passu with the
Senior Guarantee Mortgage.
"Senior Notes" means the 11.5% Senior Secured Notes due 2000
issued by the Mortgagee under the Senior Note Indenture.
"Senior Partnership Note" means that certain promissory note
of even date herewith in the original principal amount of
$27,000,000 made by the Mortgagor in favor of the Mortgagee, a
copy of which is attached to the Senior Note Indenture, and any
amendments, extensions, renewals, replacements or restatements
thereof.
"Settlement Costs" has the meaning set forth in
Section 5.17.
"Stated Maturity" when used with respect to any
Indebtedness, means the date specified in such Indebtedness as
the fixed date on which the principal of such Indebtedness is due
and payable.
"Superior Instrument Requirements" means the applicable
terms, conditions and provisions of any documentation which
constitutes, evidences, secures or governs any Senior
Indebtedness, together with the terms and provisions of the
Marina Lease.
"Superior Mortgage" means the Midlantic Mortgage and any
modification, extension, renewal or restatement thereof which
complies with the provisions of Section 5.19 hereof and with the
Senior Note Indenture.
"Taking" means the acquisition or condemnation by eminent
domain of the whole or any part of the Premises, by a competent
authority, for any public or quasi-public use or purpose.
"Tangible Personal Property" has the meaning set forth
in subclause (f) of Granting Clause Sixth.
"Trust Estate" has the meaning stated in the habendum to the
Granting Clauses.
"Trust Indenture Act" has the meaning set forth in
Section 1.1 of the Trust Indenture.
"Trustee" means the Person named as the "Trustee" in the
first paragraph of the Senior Note Indenture and any successor
thereto.
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"Uniform Commercial Code" means the New Jersey Uniform
Commercial Code N.J.S.A. 12A:1-101, et seq.
"Working Capital Facility" has the meaning set forth in
Section 1.1 of the Senior Note Indenture.
"Working Capital Facility Mortgage" means any mortgage or
other security instrument or agreement which secures a Working
Capital Facility and which evidences a lien pari passu with the
lien of the Senior Note Mortgage.
Section 1.2. Notices.
(a) Any request, demand, authorization, direction, notice
(including, without limitation, a notice of default), consent,
waiver or other document provided or permitted by this Mortgage
to be made upon, given or furnished to, or filed with, Mortgagor,
Mortgagee or the Trustee (collectively, "Notices") shall be in
writing and shall be deemed given either (i) when delivered by
hand (including by overnight courier) or (ii) two days after
sending by registered or certified mail, postage prepaid,
addressed as follows:
To Mortgagor:
Trump's Castle Associates
Trump's Castle Casino Resort
Brigantine Boulevard and Huron Avenue
Atlantic City, New Jersey 08401
Attn: Chief Financial Officer
and
Willkie Farr & Gallagher
One Citicorp Center
153 East 53rd Street
New York, New York 10022
Attn: Thomas M. Cerabino, Esq.
To Mortgagee:
Trump's Castle Funding, Inc.
Trump's Castle Casino Resort
Brigantine Boulevard and Huron Avenue
Atlantic City, New Jersey 08401
Attn: Chief Financial Officer
and
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Willkie Farr & Gallagher
One Citicorp Center
153 East 53rd Street
New York, New York 10022
Attn: Thomas M. Cerabino, Esq.
To the Trustee:
First Bank National Association
c/o First Trust National Association
180 East Fifth Street
St. Paul, Minnesota 55101
Attn: Corporate Trust Department
(b) By Notice to Mortgagor, Mortgagee and the Trustee, any
party may designate additional or substitute addresses for
Notices which, notwithstanding Subsection (a) above, shall be
deemed given when received. So long as the Assignment Agreement
is in effect, all Notices to and from Mortgagee shall be given
solely to and by the Trustee.
Section 1.3. Form and Contents of
Documents Delivered to Mortgagee.
Whenever several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not
necessary that all such matters be certified by, or covered by
the opinion of, only one such Person, or that they be so
certified or covered by only one document, but one such Person
may certify or give an opinion with respect to some matters and
one or more other such Persons as to other such matters in one or
several documents.
Any certificate or opinion of a general partner of Mortgagor
may be based, insofar as it relates to legal matters, upon a
certificate or opinion of, or representations by, counsel, unless
such general partner knows that the certificate or opinion or
representations with respect to the matters upon which his
certificate or opinion is based are erroneous. Any Opinion of
Counsel may be based, insofar as it relates to factual matters,
upon a certificate or opinion of, or representations by, a
general partner of Mortgagor stating that the information with
respect to such factual matters is in the possession of
Mortgagor, unless such counsel knows that the certificate or
opinion or representations with respect to such matters are
erroneous. If appropriate to the matter being opined upon and to
the extent not prohibited by the Senior Note Indenture Act,
conclusions stated in any Opinion of Counsel may be subject to
rights of creditors and the availability of equitable remedies.
Whenever any Person is required to make, give or execute two
or more applications, requests, consents, certificates,
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statements, opinions or other instruments under this Mortgage,
they may, but need not, be consolidated to form one instrument.
Whenever in this Mortgage, in connection with any
application or certificate or report to Mortgagee, it is provided
that Mortgagor shall deliver any document as a condition of the
granting of such application, or as evidence of Mortgagor's
compliance with any term hereof, it is intended that the truth
and accuracy, at the time of the granting of such application or
at the effective date of such certificate or report (as the case
may be), of the facts and opinions stated in such document shall
in such case be conditions precedent to the right of Mortgagor to
have such application granted or to the sufficiency of such
certificate or report.
Every application, certificate, report, affidavit, opinion,
consent, statement or other instrument required to be delivered
to Mortgagee under this Senior Note Mortgage shall be in writing
and shall be prepared and delivered without cost or expense to
Mortgagee.
Section 1.4. Compliance Certificates and Opinions.
Upon any application or request by Mortgagor to Mortgagee to
take any action under any provision of this Senior Note Mortgage,
Mortgagor shall furnish to Mortgagee a Mortgagor's Certificate
stating that all conditions precedent, if any, provided for in
this Senior Note Mortgage relating to the proposed action have
been complied with and an Opinion of Counsel stating that in the
opinion of such counsel all such conditions precedent, if any,
have been complied with, except that in the case of any such
application or request as to which the furnishing of such
documents is specifically required by any provision of this
Senior Note Mortgage relating to such particular application or
request, no additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Senior Note Mortgage
shall include:
(a) a statement that each individual signing such
certificate or opinion has read such condition or covenant and
the definitions herein relating thereto;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or
opinions contained in such certificate or opinion are based;
(c) a statement that, in the opinion of each such
individual, he has made such examination or investigation as is
necessary to enable him to express an informed opinion as to
whether or not such condition or covenant has been complied with;
and
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(d) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 1.5. Effect of Headings and Table of Contents.
The Article and Section headings herein and in the Table of
Contents are for convenience only and shall not affect the
construction hereof.
Section 1.6. Successors and Assigns; Amendments.
(a) Subject to the provisions of Sections 1.10 and 4.2
hereof and Sections 3.11 and 8.2 of the Senior Note Indenture,
and without limiting the generality of Section 1.12 hereof, this
Mortgage shall be binding upon and inure to the benefit of the
parties hereto and of the respective successors and assigns of
the parties hereto to the same effect as if each such successor
or assign were in each case named as a party to this Mortgage.
(b) This Senior Partnership Note Mortgage may not be
modified, amended, discharged, released nor any of its provisions
waived except by agreement in writing executed by Mortgagor and
Mortgagee and in accordance with the provisions of this Mortgage
and the Senior Note Indenture.
Section 1.7. Separability Clause.
In case any provision in this Mortgage or the Senior
Partnership Note shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions
shall not in any way be affected or impaired thereby.
Section 1.8. Benefits of Mortgage.
Without limiting the generality of Section 1.12, nothing in
this Mortgage or in the Senior Partnership Note, express or
implied, shall give to any Person, other than the parties hereto
and their successors and assigns, any benefit or any legal or
equitable right, remedy or claim under this Mortgage.
Section 1.9. Governing Law.
This Senior Partnership Note Mortgage shall be deemed to be
a contract under the laws of the State of New Jersey and shall be
construed in accordance with and governed by the laws of the
State of New Jersey.
Section 1.10. Limitation on Liability.
Notwithstanding anything herein or in any other agreement,
document, certificate, instrument, statement or omission referred
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to below to the contrary, Mortgagor is liable hereunder only to
the extent of the assets of Mortgagor and no other person or
entity, including, without limitation, any partner, officer,
committee or committee member of Mortgagor or any partner therein
or in any partnership Affiliate of Mortgagor, or any
incorporator, officer, director or shareholder of any corporate
partner of Mortgagor or of any corporate Affiliate of Mortgagor,
or any Affiliate or controlling person or entity of any of the
foregoing, or any agent, employee, or lender of any of the
foregoing, or any successor, personal representative, heir or
assign of any of the foregoing, in each case past, present or as
they may exist in the future, shall be liable in any respect
(including, without limitation, the breach of any representation,
warranty, covenant, agreement, condition or indemnification or
contribution undertaking contained herein or therein) under, in
connection with, arising out of or relating to this Senior Note
Mortgage, or any other agreement, document, certificate,
instrument or statement (oral or written) related to, executed or
to be executed, delivered or to be delivered, or made or to be
made, or any omission made or to be made, in connection with any
of the foregoing or any of the transactions contemplated in any
such agreement, document, certificate, instrument, or statement.
Any agreement, document, certificate, statement or other
instrument to be executed simultaneously with, in connection
with, arising out of or relating to this Mortgage or any other
agreement, document, certificate, statement or instrument
referred to above, or any agreement, document, certificate,
statement or instrument contemplated hereby shall contain
language mutatis mutandis to this Section 1.10 and, if such
language is omitted, shall be deemed to contain such language.
Section 1.11. Provisions Required by Senior Note Indenture.
Whenever the provisions of this Senior Note Mortgage and the
provisions of the Senior Note Indenture shall be inconsistent,
the provisions of the Senior Note Indenture shall govern.
Section 1.12. References to Mortgagee
and/or to Trustee; Rights of Trustee.
(a) Whenever reference is made in this Mortgage to the
rights, powers and remedies of Mortgagee or to Notices to or by
Mortgagee, the same shall apply to Trump's Castle Funding, Inc.
only so long as Trump's Castle Funding, Inc. is the holder of
this Mortgage and the Senior Partnership Note. Subsequent to the
assignment thereof on the date of and pursuant to the Senior
Assignment Agreement by Trump's Castle Funding, Inc. to the
Trustee (who shall have and hold all such rights, powers and
remedies on behalf of the Holders in accordance with the terms of
the Senior Note Indenture) and for so long as there shall not
have been effected a cancellation and discharge of the assignment
pursuant to Article V of the Senior Assignment Agreement, such
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rights, powers and remedies of Mortgagee and any Notices to or by
Mortgagee, shall apply only to the Trustee with the same force
and effect as if (i) such rights, powers and remedies were
specifically granted by this Senior Note Mortgage and the Senior
Partnership Note directly to the Trustee and (ii) the Trustee
were the named Mortgagee with respect to the giving and receiving
of Notices under Section 1.2. Upon such assignment of this
Senior Note Mortgage, the Trustee shall be named in lieu of
Trump's Castle Funding, Inc., as a named insured under the
policies of insurance set forth in Section 5.10 hereof (except
that with respect to the policy described in Section 5.10(a)(iii)
of this Mortgage, Trump's Castle Funding, Inc. may, at
Mortgagor's election, be named as an additional insured).
(b) So long as there shall not have been effected a
cancellation and discharge of the assignment pursuant to Article
V of the Senior Assignment Agreement, except as otherwise
provided in Section 6.2 of the Senior Note Indenture:
(1) Mortgagee may rely, and shall be protected in
acting or refraining from acting, upon any resolution,
certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note,
other evidence of indebtedness or other paper or document
believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(2) any request or direction of Mortgagor mentioned
herein shall be sufficiently evidenced by a Mortgagor
Request or Mortgagor Order;
(3) whenever in the administration of this Mortgage,
Mortgagee shall deem it desirable that a matter be proved or
established prior to taking, suffering or omitting any
action hereunder, Mortgagee (unless other evidence be herein
specifically prescribed) may, in the absence of bad faith on
its part, rely upon a Mortgagor's Certificate;
(4) Mortgagee may consult with counsel and any written
advice of such counsel or any Opinion of Counsel shall be
full and complete authorization and protection in respect of
any action taken, suffered or omitted by Mortgagee hereunder
in good faith and in reliance thereon;
(5) Mortgagee shall be under no obligation to exercise
any of the rights or powers vested in it by this Mortgage at
the request or direction of any of the Holders pursuant to
the Senior Note Indenture, unless such Holders shall have
offered to Mortgagee reasonable security or indemnity
against the costs, expenses and liabilities which might be
incurred therein or thereby in compliance with such request
or direction;
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(6) Mortgagee shall not be bound to make any
investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order,
approval, appraisal, bond, debenture, note, coupon, security
or other paper or document but Mortgagee, in its discretion,
may make such further inquiry or investigation into such
facts or matters as it may see fit, and, if Mortgagee shall
determine to make such further inquiry or investigation, it
shall be entitled (subject to the express limitations with
respect thereto contained in this Senior Note Mortgage) to
examine the books, records and premises of Mortgagor,
personally or by agent or attorney;
(7) Mortgagee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or
by or through agents or attorneys, and Mortgagee shall not
be responsible for any misconduct or negligence on the part
of any agent or attorney appointed with due care by it
hereunder;
(8) Mortgagee shall not be personally liable, in case
of entry by it upon the Trust Estate, for debts contracted
or liabilities or damages incurred in the management or
operation of the Trust Estate;
(9) Mortgagor shall pay or cause to be paid to the
Trustee all compensation and other amounts provided in
Section 6.6 of the Senior Note Indenture; and
(10) no provision of this Mortgage shall require
Mortgagee to expend or risk its own funds or otherwise incur
any financial liability in the performance of its
obligations hereunder, or in the exercise of any of its
rights or powers.
(c) The provisions of Section 1.12(a) shall apply to all
Mortgage Documents executed in favor of Trump's Castle Funding,
Inc. The provisions of Section 1.12(b) shall apply to all
Mortgage Documents.
Section 1.13. Mortgage Subject to Casino Control Act.
Each provision of this Senior Note Mortgage is subject to
and shall be enforced in compliance with the provisions of the
New Jersey Casino Control Act.
Section 1.14. Discharge of Lien.
If (a) Mortgagor shall pay or cause to be paid, or there
shall otherwise be paid, to Mortgagee all amounts required to be
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paid by Mortgagor pursuant to this Mortgage and the Senior Note
and the conditions precedent for the Senior Note Indenture to
cease, determine and become null and void (except for any
surviving rights of transfer or exchange of the Senior Secured
Notes provided in Section 13.1 of the Senior Note Indenture and
for the obligation to pay the Trustee's fees and expenses
provided in Section 6.6 of the Senior Note Indenture) in
accordance with Section 13.1 of the Senior Note Indenture shall
have occurred, or (b) there shall have occurred a "defeasance"
(as defined in Section 4.2 of the Senior Note Indenture) of the
Mortgage Senior Secured Notes, or (c) there shall have occurred a
"covenant defeasance" (as defined in Section 4.3 of the Trust
Indenture), then in any such case Mortgagee shall promptly cancel
and discharge this Mortgage, and any financing statements filed
in connection herewith and execute and deliver to Mortgagor all
such instruments as may be necessary, required or appropriate to
evidence such discharge and satisfaction of said lien or liens.
Section 1.15. General Application.
(a) The remedies of Mortgagee upon any default by Mortgagor
in the fulfillment of any of its obligations hereunder shall be
limited in each instance by the provisions of Section 1.10,
whether or not the provisions providing for such remedies
explicitly refer to such Section.
(b) The assertion of any rights upon any Default shall be
subject in each instance to, if required, the giving of any
notice and the expiration of any grace period provided for in
Section 3.1 as a condition to such Default becoming an Event of
Default, unless the Senior Note Indenture Act requires otherwise,
in which case the Senior Note Indenture Act shall control.
(c) For the purposes of this Senior Note Mortgage, it is
understood that an event which does not materially diminish the
value of Mortgagee's interest in the Trust Estate shall not be
deemed an "impairment of security," as that phrase is used in
this Mortgage.
Section 1.16. Senior Note Mortgage Deemed to be Security
Agreement.
To the extent that the grant of a security interest in any
portion of the Trust Estate is governed by the Uniform Commercial
Code, this Senior Note Mortgage is hereby deemed to be as well a
security agreement under the Uniform Commercial Code for the
purpose of creating hereby a security interest in all of
Mortgagor's right, title and interest in and to said property,
securing the obligations secured hereby, for the benefit of
Mortgagee.
Section 1.17. No Duplication of Notices or Payments.
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Whenever it is provided in this Senior Note Mortgage and the
Senior Guarantee Mortgage that Mortgagor shall deliver any notice
or document, or is required to make any payment, the delivery of
such notice or document or the making of such payment shall
constitute the delivery of such notice or document or the making
of such payment in satisfaction of the terms, conditions and
provisions of both this Senior Note Mortgage and the Senior
Guarantee Mortgage, provided that such notice, document or
payment states, or is accompanied by a letter stating, that such
notice, document or payment is being delivered in satisfaction of
the terms, conditions and provisions of both this Mortgage and
the Guarantee Mortgage.
ARTICLE TWO
RELEASE; SUBORDINATION
Section 2.1. Possession by Mortgagor.
So long as there shall have been no acceleration of maturity
of the Senior Partnership Note under Section 3.2, Mortgagor shall
be suffered and permitted, with power freely and without let or
hindrance on the part of Mortgagee, subject to the provisions of
this Mortgage and the Senior Note Indenture, to possess, use,
manage, operate and enjoy the Trust Estate and every part thereof
and to collect, receive, use, invest and dispose of the rents,
issues, tolls, profits, revenues and other income from the Trust
Estate or any part thereof, to use, consume and dispose of any
consumables, goods, wares and merchandise in the ordinary course
of business of operating the Casino Hotel and to adjust and
settle all matters relating to choses in action, leases and
contracts.
Section 2.2. Obsolete Property.
Mortgagor shall have the right, at any time and from time to
time, unless an Event of Default shall have occurred and be
continuing, without any release from or consent by Mortgagee:
(a) to sell or dispose of, free from the lien of this
Mortgage, any Tangible Personal Property which, in its reasonable
opinion, may have become obsolete or unfit for use or which is no
longer necessary in the conduct of its businesses or the
operation of the Trust Estate, and no purchaser of any such
property shall be bound to inquire into any question affecting
Mortgagor's right to sell or otherwise dispose of the same free
from the lien of this Mortgage;
(b) to alter, repair, replace, change the location or
position of and add to any Tangible Personal Property; provided,
however, that no change shall be made in the location of any such
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property subject to the lien of this Mortgage which would in any
respect impair the security of this Mortgage upon such property;
or
(c) to renew, extend, surrender, terminate, modify or amend
any leases of Tangible Personal Property, when, in Mortgagor's
reasonable opinion, it is prudent to do so.
Mortgagor shall retain any net cash proceeds received from
the sale or disposition of any Tangible Personal Property under
Subsection (a) of this Section 2.2, in the business of operating
the Casino Hotel.
Mortgagee shall be under no responsibility or duty with
respect to the exercise of the rights of Mortgagor under this
Section 2.2 or the application of the proceeds of any sale or
disposition of any Tangible Personal Property.
Mortgagee shall, from time to time, promptly execute any
written instrument in form satisfactory to Mortgagee to confirm
the propriety of any action taken by Mortgagor under this Section
2.2, upon receipt by Mortgagee of a Mortgagor Request requesting
the same, together with a Mortgagor's Certificate stating that
the action so to be confirmed was duly taken in conformity with
this Section 2.2, and that the execution of such written
instrument is appropriate to confirm the propriety of such action
under this Section 2.2; provided, that Mortgagee shall have no
liability thereunder and all costs and expenses (including,
without limitation, reasonable attorneys' fees and disbursements)
shall be paid by Mortgagor.
Section 2.3. F,F&E Financing Agreements.
Notwithstanding any provision contained in this Mortgage or
the Senior Note Indenture to the contrary, if Mortgagor acquires
Tangible Personal Property and/or other items constituting
operating assets subject to any F,F&E Financing Agreement, or
becomes the lessee under a lease for any of the same and if the
document evidencing such F,F&E Financing Agreement prohibits
subordinate liens or the provisions of any such lease prohibits
any assignment thereof by the lessee, and if any such prohibition
is customary with respect to similar transactions of the lender
or lessor (as evidenced by a Mortgagor's Certificate delivered to
Mortgagee, together with such other evidence as Mortgagee may
reasonably request), as the case may be, then the property so
purchased or the lessee's interest in the lease, as the case may
be, shall be deemed to be Excepted Property. If any such F,F&E
Financing Agreement permits subordinate liens, then Mortgagee
shall execute and deliver to Mortgagor, at Mortgagor's expense,
such documents as the holder of such F,F&E Financing Agreement
may reasonably request to evidence the subordination of the lien
of this Mortgage and the Mortgage Documents to the lien of such
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F,F&E Financing Agreement; provided, however, that Mortgagee
shall have no obligation to execute and deliver such documents,
and the lien of this Mortgage shall not be subordinate to any
such F,F&E Financing Agreement, unless (a) such F,F&E Financing
Agreement shall contain a provision binding upon the holder of
such F,F&E Financing Agreement that (i) if the holder of such
F,F&E Financing Agreement shall give to Mortgagor any notice of
default thereunder, such holder shall at the same time and in the
same manner serve a copy of such notice on Mortgagee at the
address designated herein (or such other address as Mortgagee may
designate by notice given to the holder of such F,F&E Financing
Agreement in the manner provided for notices hereunder), and that
no such notice to Mortgagor shall be deemed to have been duly
given unless and until a copy thereof has been so provided to
Mortgagee, and (ii) promptly following the last date upon which
Mortgagor may cure such default, if Mortgagor shall fail to cure
such default, the holder of such F,F&E Financing Agreement shall
give notice to Mortgagee stating the manner in which Mortgagor
shall have failed to cure its said default, in which event
Mortgagee shall be permitted to cure the default and, with
respect thereto, Mortgagee shall have the same amount of time,
after such notice, within which to cure the said default, as is
provided for under the provisions of such F,F&E Financing
Agreement to be given to Mortgagor therefor after notice or (b)
Mortgagor delivers to Mortgagee a Mortgagor's Certificate
certifying that (i) the provision described in clause (a) is not
customarily included by the lender or lessor in its F,F&E
Financing Agreements in similar transactions and (ii) although
Mortgagor has used reasonable efforts to have included in such
F,F&E Financing Agreement such a provision, Mortgagor has been
unsuccessful in obtaining such a provision.
ARTICLE THREE
REMEDIES
Section 3.1. Events of Default.
"Event of Default," whenever used herein, means any one of
the following events (including any applicable notice requirement
and any period of grace, as specified in this Section 3.1)
(whatever the reason for such event and whether it shall be
voluntary or involuntary or be effected by operation of law or
pursuant to any judgment, decree or order of any court or any
order, rule or regulation of any administrative or governmental
body):
(a) default in the payment of any interest on the Senior
Partnership Note when such interest becomes due and payable and
continuance of such default for a period of 30 days; or
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(b) default in the payment of all or any portion of the
principal of (or premium, if any, on) the Senior Partnership Note
when the same becomes due and payable at its Maturity; or
(c) default in the payment of any other sum due under the
Senior Partnership Note or this Senior Note Mortgage, and the
continuance of such default for a period of 30 days after there
has been given to Mortgagor a notice specifying such default and
requiring it to be remedied and stating that such notice is a
"Notice of Default" hereunder; or
(d) default in the performance, or breach, of any
covenant of Mortgagor in this Senior Note Mortgage (other than a
covenant, a default in the performance or breach of which is
elsewhere in this Section 3.1 specifically dealt with), and
continuance of such default or breach for a period of 30 days
after there has been given to Mortgagor a notice specifying such
default or breach and requiring it to be remedied and stating
that such notice is a "Notice of Default" hereunder, unless (i)
the default or breach is of such a nature that is curable but not
susceptible of being cured with due diligence within such 30-day
period (for reasons other than the lack of funds), (ii) Mortgagor
delivers an Mortgagor's Certificate to Mortgagee within such
30-day period stating (A) the applicability of the provisions of
clause (i) to such default or breach, (B) Mortgagor's intention
to remedy such default or breach with reasonable diligence and
(C) the steps which Mortgagor has undertaken or intends to
undertake to remedy such default or breach and (iii) Mortgagor
delivers to Mortgagee additional Mortgagor's Certificates every
30 days thereafter updating the information contained in the
certificate described in clause (ii), in which case such 30-day
period shall be extended for such further period of time (but in
no event more than 60 days after the last day of such 30-day
period) as may reasonably be required to cure the same, provided
that Mortgagor is then proceeding and thereafter continues to
proceed to cure the same with reasonable diligence; or
(e) an "Event of Default," as defined in Section 5.1 of the
Senior Note Indenture, shall occur and be continuing; or
(f) default by the Partnership, the Issuer or any of the
Subsidiaries under any Indebtedness, whether such Indebtedness
now exists or shall hereafter be created, if such default would
permit the holders of such Indebtedness to cause, or has resulted
in, acceleration of the maturity of such Indebtedness, in an
aggregate principal amount in excess of $5,000,000;
(g) default in the performance, or breach, of any of the
provisions of Article Four hereof; or
(h) if any representation or warranty of Mortgagor set
forth in this Senior Note Mortgage or in any notice, certificate,
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demand or request delivered to Mortgagee pursuant to this
Mortgage shall prove to be incorrect in any material respect as
of the time when made.
An Event of Default shall not be deemed to exist by reason
of any event which Mortgagor is contesting in compliance with the
provisions of Section 5.8.
Section 3.2. Acceleration of Maturity;
Recision and Annulment.
If an Event of Default (other than an Event of Default
specified in Section 5.1(f) or (g) of the Senior Note Indenture)
occurs and is continuing, then, and in every such case, Mortgagee
may declare the Outstanding Amount of the Senior Partnership Note
to be due and payable immediately, by a notice in writing to
Mortgagor and upon any such declaration such principal shall
become immediately due and payable. If an Event of Default
specified in such Section 5.1(f) or (g) occurs, the Outstanding
Amount of the Senior Partnership Note shall ipso facto become due
and payable without any declaration or other act on the part of
the Mortgagee.
If at any time after such declaration of acceleration has
been made, but before any judgment or decree for payment of money
due on the Senior Partnership Note has been obtained by the
Mortgagee, such declaration of acceleration and its consequences
has been duly rescinded and annulled in accordance with Section
5.2 of the Senior Note Indenture, then the declaration of
acceleration pursuant to this Section 3.2 shall automatically be
rescinded and annulled.
No such rescission and annulment shall affect any subsequent
default or impair any right consequent thereon.
Section 3.3. Application of Moneys Received by Mortgagee.
Any moneys received by Mortgagee pursuant to the provisions
of this Article Three (including moneys received by the Trustee
after any action or act by Mortgagee under Section 3.10) shall be
applied by Mortgagee in accordance with the provisions of Section
5.6 of the Senior Note Indenture.
Section 3.4. Restoration of Rights and Remedies.
If Mortgagee has instituted any proceeding to enforce any
right or remedy under this Senior Note Mortgage and such
proceeding has been discontinued or abandoned for any reason or
has been determined adversely to Mortgagee, then and in every
such case Mortgagor and Mortgagee shall, subject to any
determination in such proceeding, be restored to their respective
former positions hereunder, and thereafter all rights and
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remedies of Mortgagee shall continue as though no such proceeding
had been instituted.
Section 3.5. Rights and Remedies Cumulative.
No right or remedy herein conferred upon or reserved to
Mortgagee is intended to be exclusive of any other right or
remedy, and every right and remedy shall, to the extent permitted
by law, be cumulative and in addition to every other right and
remedy given hereunder or now or hereafter existing at law or in
equity or otherwise. The assertion or employment of any right or
remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
Section 3.6. Delay or Omission Not Waiver.
No delay or omission of Mortgagee to exercise any right or
remedy accruing upon an Event of Default shall impair any such
right or remedy or constitute a waiver of any such Event of
Default or an acquiescence therein. Every right and remedy given
by this Article Three or by applicable law to Mortgagee may be
exercised, from time to time, and as often as may be deemed
expedient, by Mortgagee.
Section 3.7. Undertaking for Costs.
If any action or proceeding shall be commenced (including,
without limitation, an action to foreclose this Mortgage or to
collect the indebtedness secured hereby) to which action or
proceeding Mortgagee is made or becomes a party, or in which it
becomes necessary in the opinion of Mortgagee to defend or uphold
the lien of this Senior Note Mortgage, Mortgagor shall pay to
Mortgagee all expenses, including, without limitation, reasonable
attorneys' fees, disbursements and court costs incurred by
Mortgagee in connection therewith, together with interest at the
rate then payable on the Senior Partnership Note, from the date
of payment less the net amount received by Mortgagee or the
Trustee, as their interests may appear under any title insurance
policy, and, until paid, all such expenses, together with
interest as aforesaid, shall be secured by the lien of this
Mortgage.
Section 3.8. Waiver of Appraisement and Other Laws.
To the full extent that it may lawfully so agree, Mortgagor
will not at any time insist upon, plead, claim or take the
benefit or advantage of, any appraisement, valuation, stay,
extension or redemption law now or hereafter in force, in order
to prevent or hinder the enforcement of this Mortgage or the
absolute sale of the Trust Estate, or any part thereof, or the
possession thereof by any purchaser at any sale under this
Article Three; and Mortgagor, for itself and all who may claim
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under Mortgagor, so far as Mortgagor or they now or hereafter may
lawfully do so, hereby waives the benefit of all such laws.
Mortgagor, for itself and all who may claim under Mortgagor,
waives, to the extent that Mortgagor may lawfully do so, all
right to have the property in the Trust Estate marshalled upon
any foreclosure hereof, and agrees that any court having
jurisdiction to foreclose this Mortgage may order the sale of the
Trust Estate as an entirety.
If any law in this Section 3.8 referred to and now in force,
of which Mortgagor or its successor or successors might take
advantage despite this Section 3.8, shall hereafter be repealed
or cease to be in force, such law shall not thereafter be deemed
to constitute any part of the contract herein contained or to
preclude the application of this Section 3.8.
Section 3.9. Entry.
Mortgagor agrees that upon the occurrence, and during the
continuance, of an Event of Default, Mortgagor, upon demand of
Mortgagee, shall forthwith surrender to Mortgagee the actual
possession of, and it shall be lawful for Mortgagee by such
officers or agents as it may appoint to enter and take possession
of, the Trust Estate (and the books and papers of Mortgagor), and
to hold, operate and manage the Trust Estate (including the
making of all needful repairs, and such alterations, additions
and improvements as Mortgagee shall deem wise) and to receive the
rents, issues, tolls, profits, revenues and other income thereof,
and, after deducting the costs and expenses of entering, taking
possession, holding, operating and managing the Trust Estate, as
well as payments for taxes, insurance and other proper charges
upon the Trust Estate and reasonable compensation to itself, its
agents and counsel, to apply the same as provided in Section 3.3;
provided, however, that Mortgagee's rights under this Section 3.9
shall be subject to the provisions of the New Jersey Casino
Control Act and Section 3.14. Whenever all that is then due upon
the Senior Partnership Note and under any of the terms of this
Mortgage shall have been paid and all defaults hereunder shall
have been cured, Mortgagee shall surrender possession to
Mortgagor.
Section 3.10. Power of Sale; Suits for Enforcement.
If an Event of Default shall occur and be continuing,
Mortgagee, with or without entry, in its discretion, may:
(a) sell, subject to any mandatory requirements of
applicable law, the Trust Estate as an entirety, or in such
parcels, as Mortgagee may determine, to the highest bidder at
public auction at such place and at such time (which sale may be
adjourned by Mortgagee from time to time in its discretion by
announcement at the time and place fixed for such sale, without
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further notice) and upon such terms as Mortgagee may fix and
briefly specify in a notice of sale to be published as required
by law; or
(b) proceed to protect and enforce its rights under this
Mortgage by sale pursuant to judicial proceedings or by a suit,
action or proceeding in equity or at law or otherwise, whether
for the specific performance of any covenant or agreement
contained in this Mortgage or in aid of the execution of any
power granted in this Mortgage or for the foreclosure of this
Mortgage or for the enforcement of any other legal, equitable or
other remedy, as Mortgagee shall deem most effectual to protect
and enforce any of the rights of Mortgagee; the failure to join
tenants shall not be asserted as a defense to any foreclosure or
proceeding to enforce the rights of Mortgagee.
Section 3.11. Incidents of Sale.
Upon any sale of any of the Trust Estate, whether made under
the power of sale hereby given or pursuant to judicial
proceedings, to the extent permitted by law:
(a) the principal of and accrued interest on the Senior
Partnership Note, if not previously due, shall at once become and
be immediately due and payable;
(b) subject to the provisions of Section 3.14 and the
receipt of any required prior approvals of the New Jersey Casino
Control Commission, Mortgagee may bid for and purchase the
property offered for sale, and upon compliance with the terms of
sale may hold, retain, possess and dispose of such property,
without further accountability, and may, in paying the purchase
money therefor, deliver the Senior Partnership Note or claims for
interest thereon in lieu of cash to the amount which shall, upon
distribution of the net proceeds of such sale, be payable
thereon, and the Senior Partnership Note, in case the amounts so
payable thereon shall be less than the amount due thereon, shall
be returned to Mortgagee after being appropriately stamped to
show partial payment;
(c) Mortgagee may make and deliver to the purchaser or
purchasers a good and sufficient deed, bill of sale and
instrument of assignment and transfer of the property sold;
(d) Mortgagee is hereby irrevocably appointed the true and
lawful attorney of Mortgagor, in its name and stead, to make all
necessary deeds, bills of sale and instruments of assignment and
transfer of the property thus sold; and for that purpose it may
execute all necessary deeds, bills of sale and instruments of
assignment and transfer, and may substitute one or more persons,
firms or corporations with like power, Mortgagor hereby ratifying
and confirming all that its said attorney or such substitute or
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substitutes shall lawfully do by virtue hereof; but if so
requested by Mortgagee or by any purchaser, Mortgagor shall
ratify and confirm any such sale or transfer by executing and
delivering to Mortgagee or to such purchaser or purchasers all
proper deeds, bills of sale, instruments of assignment and
transfer and releases as may be designated in any such request;
(e) all right, title, interest, claim and demand
whatsoever, either at law or in equity or otherwise, of Mortgagor
of, in and to the property so sold shall be divested and such
sale shall be a perpetual bar both at law and in equity against
Mortgagor, its successors and assigns, and against any and all
persons claiming or who may claim the property sold or any part
thereof from, through or under Mortgagor, its successors and
assigns; and
(f) the receipt of Mortgagee or of the officer making such
sale shall be a sufficient discharge to the purchaser or
purchasers at such sale for his or their purchase money and such
purchaser or purchasers and his or their assigns or personal
representatives shall not, after paying such purchase money and
receiving such receipt, be obliged to see to the application of
such purchase money, or be in anywise answerable for any loss,
misapplication or non-application thereof.
Section 3.12. Receiver.
Upon the occurrence of an Event of Default and commencement
of judicial proceedings by Mortgagee to enforce any right under
this Mortgage, Mortgagee shall be entitled, as against Mortgagor,
without notice or demand and without regard to the adequacy of
the security for the Senior Partnership Note or the solvency of
Mortgagor, to the appointment of a receiver of the Trust Estate,
and of the rents, issues, profits, revenues and other income
thereof; provided, however, that Mortgagee's rights under this
Section 3.12 shall be subject to the provisions of the New Jersey
Casino Control Act and Section 3.14 hereof.
Section 3.13. Suits to Protect the Trust Estate.
Mortgagor hereby acknowledges the right of Mortgagee, in the
name and on behalf of Mortgagor, (a) to appear in and defend any
action or proceeding brought with respect to the Trust Estate or
any part thereof and (b) upon 5 days' prior notice to Mortgagor
(or such shorter period or without notice if deemed necessary and
appropriate by Mortgagee), to institute and to maintain such
proceedings as Mortgagee may deem necessary and appropriate, but
in the case of (a) and (b) only to prevent any impairment of
security or any impairment of the Trust Estate by any acts which
may be unlawful or in violation of this Mortgage and to protect
Mortgagee's interests in the Trust Estate and in the rents,
issues, profits, revenues and other income arising therefrom,
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including the right to institute and maintain proceedings to
restrain the enforcement of or compliance with any governmental
enactment, rule or order that may be unconstitutional or
otherwise invalid, if the enforcement of or compliance with such
enactment, rule or order would impair the security hereunder or
be materially prejudicial to the interests of Mortgagee.
Section 3.14. Management of the Premises.
Without limiting the generality of any other provision of
this Article Three, following an Event of Default and the taking
of possession of the Trust Estate or any part thereof by
Mortgagee and/or the appointment of a receiver of the Trust
Estate or any part thereof, Mortgagee or any such receiver shall
be authorized, in addition to the rights and powers of Mortgagee
and such receiver set forth elsewhere in this Mortgage, to take
any action permitted under Section 5.17 of the Senior Note
Indenture.
ARTICLE FOUR
CONSOLIDATION, MERGER, CONVEYANCE,
TRANSFER OR LEASE
Section 4.1. Consolidation, Merger, Conveyance
or Transfer only on Certain Terms.
Mortgagor shall comply with all provisions applicable to
Mortgagor in Article Eight of the Senior Note Indenture.
Section 4.2. Successor Entity Substituted.
Upon any consolidation or merger, or any sale, assignment,
conveyance, transfer or disposition of the Trust Estate or any
portion thereof in accordance with Section 8.1 of the Senior Note
Indenture (other than a lease), the successor Person formed by
such consolidation or into which Mortgagor is merged or the
successor Person to which such sale, assignment, conveyance,
transfer or disposition is made shall succeed to, and be
substituted for, and may exercise every right and power of,
Mortgagor under this Mortgage with the same effect as if such
successor had been named as Mortgagor herein; and thereafter,
except in the case of a lease, the Person named as "Mortgagor" in
the first paragraph of this instrument or any successor Person
which shall theretofore have become such in the manner prescribed
in this Article shall be discharged from all obligations and
covenants under this Mortgage.
ARTICLE FIVE
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COVENANTS AND REPRESENTATIONS OF MORTGAGOR
Section 5.1. Payment of Principal, Premium and Interest.
Mortgagor shall duly and punctually pay the principal of
(and premium, if any) and interest on the Senior Partnership Note
in accordance with the terms of the Senior Partnership Note and
this Mortgage.
Section 5.2. F,F&E Financing Agreements.
Mortgagor shall comply with all of the terms and conditions
set forth in any F,F&E Financing Agreements before the expiration
of any applicable notice and cure periods contained in the F,F&E
Financing Agreements.
Section 5.3. Limitations on Liens and Transfers.
(a) Mortgagor shall not create, incur, suffer or permit to
be created or incurred or to exist any mortgage, lien, charge or
encumbrance on or pledge of any of the Trust Estate, other than
(i) Permitted Encumbrances, (ii) a notice of intention filed by a
mechanic, materialman or laborer under the New Jersey mechanic's
lien law, and (iii) a building contract filed by a contractor or
subcontractor under the New Jersey mechanic's lien law. Without
limiting the generality of the foregoing sentence but
notwithstanding the provisions of the foregoing sentence,
Mortgagor shall not be deemed to have breached the provisions of
the foregoing sentence by virtue of the existence of a lien for
Impositions or mechanics' liens so long as Mortgagor is in good
faith contesting the validity of the same in accordance with the
provisions of Section 5.8.
(b) The lien of this Mortgage on the date hereof shall be
subject and subordinate to the lien of any Existing Encumbrances
to the extent that each thereof encumbers Mortgagor's interest in
the Trust Estate or any part thereof. The foregoing provisions
of this Section 5.3(b) shall be self-operative and no further
instrument shall be required to give effect to such
subordination. Mortgagee shall, however, from time to time,
after receipt of a Mortgagor Request therefor (accompanied by a
Mortgagor's Certificate stating that said conditions have been
satisfied) execute instruments in form and substance reasonably
satisfactory to the holder of a particular Superior Mortgage
confirming such subordination.
(c) Except as otherwise expressly permitted under this
Mortgage and the Senior Note Indenture (including, without
limitation, Article Eight of the Senior Note Indenture),
Mortgagor shall not sell, assign, lease or otherwise transfer all
or any portion of the Trust Estate or any interest therein.
Notwithstanding the foregoing, Mortgagor shall have the right, at
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any time and from time to time, unless an Event of Default shall
have occurred and be continuing, without any release from or
consent by Mortgagee, to grant interests in the Owned Land in the
nature of rights-of-way or easements, or other rights or
privileges in the nature of easements; provided, (i) that none of
the same will reduce or impair, in any material respect, (A) the
value or usefulness of the Trust Estate or any part thereof or
(B) the normal operation of the Casino Hotel in accordance with
all Legal Requirements and all Permits, (ii) Mortgagor has
delivered to Mortgagee a Mortgagor's Certificate, dated not
earlier than 10 days prior to the date of each such grant,
certifying that (A) no Event of Default has occurred and is
continuing and (B) the conditions set forth in this Section
5.3(c) for such grant have been fulfilled and (iii) Mortgagor has
delivered to Mortgagee a duplicate original of the instrument, if
any, pursuant to which such grant is to be made, and such other
instruments, certificates and opinions as Mortgagee may
reasonably request. The foregoing provisions of this Section
5.3(c) shall be self-operative and no further instrument shall be
required to evidence the consent of Mortgagee to the grant or
other conveyance of such rights-of-way or easements. Mortgagee
shall, however, from time to time, after receipt of a Mortgagor
Request therefor (accompanied by a Mortgagor's Certificate
stating that said conditions have been satisfied) execute
instruments in form and substance reasonably satisfactory to
Mortgagee confirming the permissibility of such grant or other
conveyance.
Section 5.4. Environmental.
Without limiting the generality of any other provision of
this Mortgage, Mortgagor covenants, represents and warrants to
Mortgagee as follows:
(a) Mortgagor shall comply with any and all federal, state
and local environmental legislation, rules, and regulations in
effect as of the date of this Mortgage and subsequent thereto,
including, without limitation, the Spill Compensation and Control
Act (N.J.S.A. 58:10-23. 11 et seq.) (the"Spill Act"); the
Industrial Site Recovery Act (N.J.S.A. 13:1K-6 et seq.) ("IRSA");
the Solid Waste Management Act (N.J.S.A. 13:E-1 et seq.); the
Resource, Conservation and Recovery Act (42 U.S.C. Section 6901
et seq.) ("RCRA"); the Comprehensive Environmental Response,
Compensation and Liability Act (42 U.S.C. Section 9601 et seq.)
("CERCLA") and such other environmental legislation, rules and
regulations, as are in or may come into effect and apply to (i)
Mortgagor and/or Mortgagee with respect to the Premises or (ii)
the transactions contemplated hereby, and as to any occupants or
users of the collateral, whether as lessees, tenants, licensees
or otherwise, Mortgagor shall use its best efforts to cause same
to comply with said legislation, rules and regulations.
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Mortgagor agrees to pay all costs required in connection with
compliance with the foregoing legislation, rules and regulations.
(b) Mortgagor has not used in the past, nor shall Mortgagor
use in the future, the Premises for the purpose of refining,
producing, storing, handling, transferring, processing or
transporting "Hazardous Substances", as such term is defined in
IRSA, the Spill Act, CERCLA or the regulations relating thereto,
except that Mortgagor and its subsidiaries have used, and
Mortgagor may continue in the future to use, substances in the
operation and maintenance of the Premises, including, without
limitation, heating oil, gasoline and cleaning chemicals which
could be considered as "Hazardous Substances" under the preceding
definition.
(c) To the best of Mortgagor's knowledge, after due inquiry
and investigation, none of the real property owned, leased and/or
occupied by Mortgagor and located in the State of New Jersey,
including, without limitation, the Premises, has been or is now
being used as a "Major Facility" as such term is defined in
N.J.S.A. 58:10-23.11b(1). Mortgagor will not use the Premises in
the future as a "Major Facility".
(d) To the best of Mortgagor's knowledge, after due inquiry
and investigation, no lien has been attached to any revenues or
any real or personal property owned by Mortgagor or the Premises,
as a result of the Chief Executive of the New Jersey Spill
Compensation Fund expending monies from said fund to pay for
"Cleanup Costs", as such term is defined in N.J.S.A.
58:10-23.11b(d), arising from an intentional or unintentional
action or omission of Mortgagor or any previous owner and/or
operator of such real property.
(e) There is no asbestos or asbestos containing material on
the Premises. To the best of Mortgagor's knowledge, there are no
underground storage tanks located at the Premises, other than
those tanks previously disclosed to Mortgagee and which are
maintained in accordance with all material Legal Requirements.
Mortgagor has not installed or placed, or permitted to be
installed or placed, any underground storage tanks at or on the
Premises, other than those tanks previously disclosed to
Mortgagee and which are maintained in accordance with all
material Legal Requirements. Underground storage tanks shall
have the definition as set forth in N.J.S.A. 58:10A-22(p).
(f) Mortgagor has not received a summons, citation,
directive, letter, other written communication, or, to the best
of its knowledge, any oral communication, from the New Jersey
Department of Environmental Protection and Energy or from any
other person, firm or corporation concerning any intentional or
unintentional action or omission on Mortgagor's part resulting in
the releasing, spilling, leaking, pumping, pouring, emitting,
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emptying or dumping of "Hazardous Substances", as such term is
defined in N.J.S.A. 58:10-23.11b(k), into the waters or onto the
lands of the State of New Jersey, or into the waters outside the
jurisdiction of the State of New Jersey, in either case resulting
in damage to the lands, waters, fish, shellfish, wildlife, biota,
air and other resources owned, managed, held in trust or
otherwise controlled by the State of New Jersey.
(g) In connection with any purchase of the Premises or any
business or assets located thereon or any "closing, terminating
or transferring operations" of any "industrial establishment", as
that term is defined in ISRA, occurring on or after December 31,
1983, Mortgagor required that the owner and or operator of the
industrial establishment comply with the provisions of ECRA and
the owner and or operator did comply therewith.
(h) Upon the occurrence of an Event (as hereinafter
defined), Mortgagee shall have the right to have its consultants
perform a comprehensive environmental audit of the Premises.
Such audit shall be conducted by an environmental consultant
chosen by Mortgagee and may include a visual survey, a record
review, an area reconnaissance assessing the presence of
hazardous or toxic waste or substances, PCBs or storage tanks at
the Premises, an asbestos survey of the Premises, which may
include random sampling of the improvements and air quality
testing, and such further site assessments as Mortgagee may
reasonably require due to the results obtained from the
foregoing. Mortgagor grants Mortgagee, its agents, consultants
and contractors the right to enter the Premises for the purposes
of performing such studies and the cost of such studies shall be
due and payable by Mortgagor to Mortgagee upon demand and shall
be secured by the lien of this Mortgage. Mortgagee shall direct
the environmental consultant to use its best efforts not to
hinder Mortgagor's or any tenant's operations when conducting
such audit, sampling or inspections. For purposes of this
paragraph, the term "Event" shall mean (i) the occurrence of any
Event of Default, (ii) the issuance of any summons, citation,
directive or similar written notice from the New Jersey
Department of Environmental Protection and Energy or from any
other local, state or federal entity or from any other person,
firm or corporation concerning any alleged material violation of
any and all federal, state and local environmental legislation,
rules and regulations in effect as of the date of this Mortgage
and subsequent thereto or (iii) the initiation of any legal
action, suits or other legal or administrative proceedings
relating to or in connection with any alleged violation of any
and all federal, state and local environmental legislation, rules
and regulations in effect as of the date of this Mortgage and
subsequent thereto.
(i) If a lien shall be filed against the Premises by the
New Jersey Department of Environmental Protection and Energy,
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pursuant to and in accordance with the provisions of N.J.S.A.
58:10-23.11f(f), as a result of the Chief Executive of the New
Jersey Spill Compensation Fund having expended monies from said
fund to pay for "Damages", as such term is defined in N.J.S.A.
58:10-23.11g, and/or "Cleanup and Removal-Costs", as such term is
defined in N.J.S.A. 58:10-23(b), arising from an intentional or
unintentional action or omission of Mortgagor resulting in the
releasing, spilling, pumping, pouring, emitting, emptying or
dumping of "Hazardous Substances", as such term is defined in
N.J.S.A. 58:10-23.11(b)k into waters of the State of New Jersey
or onto lands from which it might flow or drain into said waters,
then, unless there is a good faith basis for contesting such lien
and Mortgagor is so contesting such lien in accordance with
Section 5.9, Mortgagor shall, within 30 days from the date that
Mortgagor is given notice that the lien has been placed against
the Premises or within such shorter period of time if the State
of New Jersey has commenced steps to cause the Premises to be
sold pursuant to the lien, either (i) pay the claim and remove
the lien from the Premises, or (ii) furnish (A) a bond
satisfactory to a title company selected by Mortgagee (the "Title
Insurer") in the amount of the claim out of which the lien
arises, (B) to the Trustee, a cash deposit (which may be
disbursed by the Trustee in its sole discretion) in the amount of
the claim out of which the lien arises, or (C) other security
reasonably satisfactory to Mortgagee in an amount sufficient to
discharge the claim out of which the lien arises.
(j) Mortgagor shall use its best efforts to cause
compliance by all lessees with all applicable Legal Requirements
relating to environmental protection.
(k) Mortgagor shall promptly provide Mortgagee with copies
of all notices received by or prepared by Mortgagor in connection
with ISRA, CERCLA, the Spill Act, RCRA or any other environmental
law, rule or regulation relating to the Premises. For purposes
of this paragraph, the term "notice" shall mean any summons,
citation, directive, order, claim, pleading, letter, application,
filing, report, findings, declarations or other materials
pertinent to compliance of the Trust Estate and Mortgagor with
such environmental laws, rules or regulations.
(l) If this Mortgage is foreclosed, Mortgagor shall deliver
the Premises in compliance with all applicable federal, state and
local environmental laws, ordinances, rules and regulations,
including, without limitation, ISRA.
(m) Without limiting the generality of Section 5.20,
Mortgagor agrees to defend, indemnify and save Mortgagee harmless
from and against any loss or liability, cost or expense
(including, without limitation, reasonable attorneys' fees,
consultants' fees, disbursements and court costs) arising out of,
or incurred in connection with, Mortgagor's misrepresentation, or
(41)
<PAGE>
failure promptly (but in no event to exceed the time period
permitted by law) to comply with and perform its obligations,
under this Section 5.4. The provisions of this subsection (m)
shall survive any transfer of the Premises, including a transfer
after a foreclosure of this Mortgage.
Section 5.5. Warranty of Leasehold Estate and Title.
Mortgagor represents and warrants that as of the date
hereof:
(a) Mortgagor is duly authorized under the laws of the
State of New Jersey and all other applicable laws to execute and
deliver the Mortgage Documents, and all partnership action on
Mortgagor's part necessary for the valid execution and delivery
of the Mortgage Documents has been duly and effectively taken;
(b) Mortgagor is the lawful owner and is lawfully seized
and possessed of the Owned Land and all buildings and
improvements thereon, free and clear of all liens, charges or
encumbrances, other than the Mortgage Documents and the Existing
Encumbrances;
(c) Mortgagor is the holder of and has good and marketable
title to the leasehold interests and leasehold estates under all
existing Facility Leases, subject to no lien, encumbrance or
charge other than the Mortgage Documents and the Existing
Encumbrances;
(d) (i) each existing Facility Lease is a valid and
subsisting demise of the respective Leased Land for the term
therein set forth, (ii) there are no defaults under any Facility
Lease by any lessor or the lessee as to which written notice has
been given to or by the lessee, (iii) Mortgagor has delivered to
Mortgagee and the Trustee a true and correct copy of each
existing Facility Lease, and all modifications, amendments and
supplements thereto, and (iv) each existing Facility Lease is in
full force and effect and has not been modified, amended or
supplemented, except as described on Schedule 3;
(e) Mortgagor has good title to the Operating Assets,
subject to no lien, encumbrance or charge, other than the
Mortgage Documents and the Existing Encumbrances;
(f) Mortgagor has good and lawful right and authority to
execute this Mortgage and to grant, bargain, sell, alien, convey,
assign, transfer, hypothecate, pledge, mortgage and confirm the
Trust Estate as provided herein (including, without limitation,
with respect to the Operating Assets and Facility Leases),
without the consent of any third party, other than governmental
authorities and other secured Persons but any applicable or
necessary consent or approval of any such governmental authority
(42)
<PAGE>
and other such Persons has been given or waived in accordance
with applicable law at or prior to the execution and delivery of
this Mortgage, and this Mortgage constitutes a valid first
mortgage lien and deed of trust and first priority security
interest in the Trust Estate, subject only to Existing
Encumbrances (including, without limitation, the Superior
Mortgage); and
(g) (i) all amounts due under the Superior Mortgage and the
instruments secured thereby have been paid to the extent they
were due and payable to the date hereof, and (ii) there is no
existing default under said Superior Mortgage or instruments, or
in the performance of any of the terms, covenants, conditions or
warranties therein on the part of Mortgagor to be performed and
observed thereunder as to which written notice has been given to
Mortgagor.
Mortgagor hereby does and shall forever warrant and defend
(a) the title to the Trust Estate (including, without limitation,
Mortgagor's leasehold estate under, and the lessee's interests
in, each existing Facility Lease) (subject to Permitted
Encumbrances) and (b) the priority of the lien of this Senior
Note Mortgage thereon (subject to Permitted Encumbrances other
than Restricted Encumbrances), against the claims and demands of
all persons whomsoever, at Mortgagor's sole cost and expense.
Section 5.6. After-Acquired Property;
Further Assurances; Recording.
All property, real, personal or mixed or any interest
therein (other than Excepted Property), of every kind and
description and wheresoever situate, which may be hereafter
acquired by Mortgagor (including, without limitation, fee title
to any Leased Land) shall immediately upon the acquisition
thereof by Mortgagor, and without any further mortgage,
conveyance or assignment, become subject to the lien of this
Mortgage as fully as though now owned by Mortgagor and covered by
the Granting Clauses. Nevertheless, Mortgagor shall do, execute,
acknowledge and deliver all and every such further acts,
conveyances, mortgages, financing statements and assurances as
Mortgagee shall require for accomplishing the express purposes of
this Senior Note Mortgage.
Mortgagor shall, as provided in Section 5.12, from time to
time subject to the lien of this Senior Note Mortgage its right,
title and interest under all Leases.
Mortgagor shall use reasonable efforts to insure that all
Operating Assets (other than Excepted Property) or any interest
therein hereafter acquired by Mortgagor shall be assignable to
Mortgagee, and to the extent such assignment to Mortgagee
requires the consent of any governmental authority or any other
(43)
<PAGE>
Person, Mortgagor shall use reasonable efforts to obtain such
consent or a waiver thereof.
Mortgagor shall cause this instrument and all other
instruments of further assurance, including all financing
statements and continuation statements covering security
interests in personal property, to be promptly recorded,
registered and filed, and at all times to be kept recorded,
registered and filed, and shall execute and file such financing
statements and cause to be issued and filed such continuation
statements, all in such manner and in such places as may be
required by law or as requested by Mortgagee to fully preserve
and protect the rights of Mortgagee as a secured party under the
Uniform Commercial Code to all property comprising the Trust
Estate (to the extent a grant of a security interest therein is
governed by the Uniform Commercial Code) and to perfect, preserve
and protect the lien of this Senior Note Mortgage as a valid
direct first mortgage lien of record and a valid first priority
security interest on the Trust Estate, subject only to Permitted
Encumbrances (including, without limitation, the Superior
Mortgage).
Mortgagor shall pay all filing or recording fees, and all
expenses incident to the execution and delivery of this Mortgage,
any financing statement or continuation statement with respect to
the personal property constituting part of the Trust Estate, and
any instrument of further assurance, and all federal, state,
county and municipal stamp taxes and other taxes, duties,
imposts, assessments and charges arising out of or in connection
with the execution and delivery of the Senior Partnership Note,
this Senior Note Mortgage, any financing statement or
continuation statement with respect to the personal property
constituting part of the Trust Estate or any instrument of
further assurance.
Mortgagor shall furnish to Mortgagee promptly after the
acquisition hereafter by Mortgagor of any fee interest or
leasehold interest in real property having a fair market value
exceeding $500,000 (other than Excepted Property) (a) a mortgagee
policy of title insurance on the most recent form of American
Land Title Association standard loan policy, extended coverage,
which policy shall (i) contain all such endorsements and
affirmative insurance, to the extent reasonably applicable, as is
contained in the Original Policy and (ii) evidence that title to
such real property is subject to no liens or encumbrances (other
than Permitted Encumbrances) which would (A) render title
unmarketable or (B) violate any other provision of this Senior
Note Mortgage or the Senior Note Indenture, (b) an as-built
survey meeting the "Minimum Standard Detail Requirements for
ALTA/ACSM Land Title Surveys", certified within 60 days prior to
the acquisition date by a surveyor licensed in the State of New
Jersey using the same form of certification as that contained in
(44)
<PAGE>
the surveys of the Premises delivered to the Trustee on the date
of this Mortgage and (c) a Mortgagor's Certificate certifying
that the mortgagee policy of title insurance and survey delivered
pursuant to clauses (a) and (b) comply, respectively, with the
provisions of such clauses (a) and (b). Upon delivery of all of
the items required under this paragraph, any liens or
encumbrances on such real property shall constitute Permitted
Encumbrances hereunder.
Section 5.7. Payment of Taxes and Certain Claims;
Maintenance of Properties; Compliance with
Legal Requirements and Insurance Requirements.
Mortgagor shall:
(a) subject to the provisions of Section 5.8, pay or cause
to be paid before the date on which any fine, penalty, interest
or cost may be added for nonpayment (but no later than when the
same are payable by Mortgagor pursuant to any Superior Instrument
Requirement), all taxes (including, without limitation, real
estate taxes, personal or other property taxes and all sales,
value added, use and similar taxes), assessments (including,
without limitation, all assessments for public improvements or
benefits, whether or not commenced or completed prior to the date
hereof and whether or not to be completed prior to the
satisfaction of this Mortgage), water, sewer or other rents,
rates and charges, excises, levies, license fees, permit fees,
inspection fees and other authorization fees and other charges,
in each case whether general or special, ordinary or
extraordinary, foreseen or unforeseen, of every character
(including, without limitation, all interest, additions to tax
and penalties thereon), that may be assessed, levied, confirmed
or imposed on or in respect of or be a lien upon (i) the Trust
Estate (including, without limitation, the Leased Land) or any
part thereof or any rent therefrom or any estate right or
interest therein, or (ii) any acquisition, occupancy, use,
leasing, or possession of or activity conducted on the real
property or any part thereof included in the Trust Estate or any
gross receipts thereof or of the rent therefrom (all of the
foregoing being referred to collectively as "Impositions").
Notwithstanding the foregoing or any other provision of this
Mortgage, Mortgagor shall not be required to pay any income,
profits or revenue tax upon the income of Mortgagee, the Trustee
or the Holders nor any franchise, excise, corporate, estate,
inheritance, succession, capital levy or transfer tax of
Mortgagee, the Trustee or the Holders nor any interest, additions
to tax or penalties in respect thereof, unless such tax is
imposed, levied or assessed in substitution for any Imposition
that Mortgagor is required to pay pursuant to this Section 5.7.
Mortgagor shall deliver to Mortgagee, at Mortgagee's request,
official receipts or other proof evidencing payments of any
Impositions in accordance with the requirements of this
(45)
<PAGE>
Section 5.7. Mortgagor shall not be entitled to any credit for
taxes or assessments paid against the Senior Partnership Note;
(b) except for such obsolete property as Mortgagor may
dispose of or replace pursuant to Section 2.2, maintain and keep
all of Mortgagor's properties used or useful in the conduct of
Mortgagor's business, including, without limitation, the Casino
Hotel and all Tangible Personal Property, in such good repair,
working order and condition, except for reasonable wear and use,
and make or cause to be made all such needful and proper repairs,
renewals and replacements thereto consistent with the standards
of first-class casino and hotel complexes in Atlantic City, New
Jersey;
(c) occupy and continuously operate the Casino Hotel and
keep the Casino Hotel supplied with Tangible Personal Property,
all in a manner consistent with the standards of first-class
casino and hotel complexes in Atlantic City, New Jersey;
(d) subject to the provisions of Section 5.8, (i) comply
with all Legal Requirements and Insurance Requirements, whether
or not compliance therewith shall require structural changes in
the buildings and improvements included in the Trust Estate or
interfere with the use and enjoyment of the Trust Estate or any
part thereof, (ii) procure, maintain and comply with all Permits
required for (1) the use of the Casino as a gaming and gambling
facility, (2) the on-premises consumption of alcoholic beverages
at the Casino Hotel and (3) any other use of the Trust Estate or
any part thereof then being made, and for the proper erection,
installation, operation and maintenance of the improvements or
any part thereof, (iii) comply with all obligations of Mortgagor
under, and keep in full force and effect, all easements which in
any respect inure to the benefit of, or otherwise affect, the
Trust Estate or any part thereof, if the failure to comply with
the same would impair Mortgagee's security hereunder, and (iv)
without limiting the generality of clause (iii), comply with any
instruments of record at the time in force affecting the Trust
Estate or any part thereof, if the failure to comply with the
same would impair Mortgagee's security hereunder. Without
limiting the generality of the foregoing, Mortgagor represents
and warrants that at the time of the execution of this Mortgage,
Mortgagor is in compliance with the requirements of clauses (i),
(ii), (iii) and (iv) above; and
(e) in the event of the passage after the date of this
Mortgage of any law of the State of New Jersey, or any other
governmental entity, changing in any way the laws now in force
for the taxation of mortgages, or debts secured thereby, for
federal, state or local purposes, or the manner of the operation
of any such taxes, so as to affect the interest of Mortgagee, pay
the full amount of such new or additional taxes.
(46)
<PAGE>
Section 5.8. Permitted Contests.
Notwithstanding anything in this Senior Note Mortgage to the
contrary, Mortgagor, at Mortgagor's expense, may contest (after
prior notice to Mortgagee) by appropriate legal proceedings
conducted in good faith and with due diligence, the amount or
validity or application, in whole or in part, of any Imposition
or lien therefor or any Legal Requirement or Insurance
Requirement or the application of any instrument of record
(including, without limitation, any Superior Instrument
Requirement) affecting the Trust Estate or any part thereof or
any claims of holders of F,F&E Financing Agreements, mechanics,
materialmen, suppliers, or vendors or lien therefor, and may
withhold payment of the same pending such proceedings if
permitted by law, or make payment under protest, or defer
compliance with any such Legal Requirement, any such Insurance
Requirement or the terms of any such instrument, and the same
shall not be a Default hereunder; provided, that (a) in the case
of any Impositions or lien therefor or any claims of mechanics,
materialmen, suppliers or vendors or lien therefor, such
proceedings shall suspend the collection thereof from each of
Mortgagor, Mortgagee, the Trustee, the Holders and the Trust
Estate, (b) neither the Trust Estate nor any interest therein
would be in any significant danger of being sold, forfeited, or
lost, (c) such action will not result in (i) the termination of
any Facility Lease or (ii) the holder of any Superior Mortgage
having a right to exercise any rights or remedies thereunder, (d)
in the case of a Legal Requirement, neither the Holders nor
Mortgagee shall be in any significant danger of any civil
liability or any danger of any criminal liability, and the
failure of Mortgagor to comply with such Legal Requirement shall
not affect the continuance in good standing of any Permit or
result in the suspension, termination, non-renewal or material
adverse modification of any Permit, and (e) in the case of an
Insurance Requirement, the failure of Mortgagor to comply
therewith shall not affect the validity of any insurance required
to be maintained by Mortgagor hereunder.
Section 5.9. Mechanics' and Other Liens.
Mortgagor shall cause to be removed, either by payment, or
bonding or otherwise, all claims and demands of mechanics,
materialmen, laborers, and others which, if unpaid, might result
in, or permit the creation of, a lien on the Premises and/or
Trust Estate or any part thereof, or on the revenues, rents,
issues, income and profits arising therefrom and in general shall
do or cause to be done everything necessary so that the lien
hereof shall be fully preserved, at the cost of Mortgagor,
without expense to Mortgagee.
Section 5.10. To Insure.
(47)
<PAGE>
(a) Mortgagor, at Mortgagor's expense, shall maintain with
Insurers:
(i) insurance with respect to Mortgagor's insurable
properties constituting a part of the Trust Estate against
loss or damage by fire, lightning, and other risks from time
to time included under "all-risk" policies and against loss
or damage by sprinkler leakage, water damage, collapse,
malicious mischief and explosion in respect of any steam and
pressure boilers and similar apparatus located on such
insurable properties, in amounts at all times sufficient to
prevent Mortgagor from becoming a coinsurer within the terms
of the applicable policies, but in any event such insurance
shall be maintained in not less than the greatest of the
following (the "Insurance Amount"): (A) 100% of the then
Full Insurable Value of such insurable properties,
determined from time to time (but not less frequently than
once in any 36 calendar months), by an Appraiser or Insurer,
(B) the then Outstanding Amount of Mortgage Debt, including
the Senior Partnership Note, or (C) the amount required to
be maintained pursuant to the Superior Instrument
Requirements;
(ii) war risk insurance as and when such insurance is
obtainable from the United States of America or any agency
thereof as promptly as reasonably practicable after the same
becomes so obtainable, in an amount not less than the
Insurance Amount, or, if such insurance cannot be obtained
in an amount not less than the Insurance Amount, in such
lesser amount as may then be so obtainable;
(iii) comprehensive general liability insurance,
including, without limitation, blanket contractual liability
coverage, broad form property damage, independent
contractor's coverage and personal injury coverage against
any and all claims arising out of or connected with the
possession, use,, leasing, operation or condition of such
insurable properties, in an amount not less than
$100,000,000 combined single limit coverage for personal
injury and property damage with respect to any one
occurrence, which may be under an umbrella policy. Anything
contained in this clause (iii) to the contrary
notwithstanding, the Superior Instrument Requirements with
respect to the kinds and amount of insurance described in
this clause (iii) shall be satisfied by Mortgagor;
(iv) workers' compensation insurance to the extent
required by law;
(v) business interruption insurance covering not less
than 6 months of loss, provided that, at any time that
Mortgagor is renewing any policy for such insurance or
(48)
<PAGE>
taking out any new or replacement policy for such insurance
covering a period of less than 12 months, Mortgagor shall deliver
to Mortgagee an Officers' Certificate certifying that the period
of coverage to be maintained by Mortgagor under such policy is
the maximum that can be maintained at rates determined by
Mortgagor to be reasonable for such coverage;
(vi) to the extent available, flood insurance in an
amount not less than the Insurance Amount, or, if such
insurance cannot be obtained in an amount not less than the
Insurance Amount, such lesser amount as may then be so
obtainable but in no event less than $100,000,000; and
(vii) such other insurance with respect to such
insurable properties against loss or damage of the kinds (A)
from time to time customarily insured against by persons
owning or using first-class casino and hotel complexes in
Atlantic City, New Jersey and (B) required to be maintained
pursuant to any Superior Instrument Requirements.
Notwithstanding the foregoing, to the extent not violative
of any Superior Instrument Requirements, (A) Mortgagor may
maintain a deductible with respect to the insurance policies
described in clauses (i), (ii), (vi) and (vii) in an amount not
to exceed $250,000, (B) Mortgagor may maintain a deductible with
respect to the insurance policies described in clause (iii) in an
amount not to exceed $500,000, and (C) Mortgagor may maintain a
deductible with respect to the insurance policies described in
clause (v) in an amount not to exceed $1,000,000.
(b) (i) Each policy of insurance maintained by Mortgagor
pursuant to Section 5.10(a) shall, (A) except in the case of
workers' compensation insurance, name Mortgagor as an insured and
shall name as additional insureds (1) Mortgagee and (2) to the
extent required by the Superior Instrument Requirements, the
lessors under any Facility Leases and the holders of the Superior
Mortgages, (B) provide that all insurance proceeds for losses,
except in the case of comprehensive general liability insurance
and workers' compensation insurance or as otherwise provided in
Subsections (d), (e) and (f) of this Section 5.10, be payable
solely to Mortgagee (or if such insurance proceeds are for losses
sustained solely to property covered by a Superior Mortgage, such
other party as is required to receive such proceeds under a
Superior Mortgage), (C) include effective waivers (whether under
the terms of any such policy or otherwise) by the insurer of all
claims for insurance premiums against all loss payees and named
insureds (other than Mortgagor) and all rights of subrogation
against any named insured, (D) except in the case of
comprehensive general liability and workers' compensation
insurance, provide that any losses shall be payable
notwithstanding (1) any act, failure to act, negligence of, or
(49)
<PAGE>
violation or breach of warranties, declarations or conditions
contained in such policy by Mortgagor or Mortgagee or any other
named insured or loss payee (including, without limitation, (x)
the lessors under the Facility Leases with respect to any Leased
Facilities and (y) the holder of any Superior Mortgage with
respect to the property encumbered thereby), (2) the occupation
or use of the insurable properties for purposes more hazardous
than permitted by the terms of the policy, (3) any foreclosure or
other proceeding or notice of sale relating to the insurable
properties or (4) any change in the title to or ownership or
possession of the insurable properties, (E) contain a
non-contributory mortgagee clause in favor of Mortgagee, and (F)
provide that if all or any part of such policy is cancelled,
terminated or expires, the insurer will forthwith give notice
thereof to each named insured and loss payee and that no
cancellation, non-renewal, reduction in amount or material change
in coverage thereof shall be effective until at least 30 days
after receipt by each named insured and loss payee of written
notice thereof.
(ii) Mortgagor may effect the insurance required under this
Section 5.10 under blanket and/or umbrella policies covering
properties owned or leased by Affiliates of Mortgagor; provided,
that (A) such policies otherwise comply with this mortgage, (B)
except with respect to flood insurance and earthquake insurance,
provide that the amount of coverage afforded thereunder with
respect to the Trust Estate shall not be reduced by claims
thereunder against such other properties and (C) in the case of
flood insurance provide that the amount of coverage afforded
thereunder with respect to the Trust Estate shall not be reduced
below $100,000,000 by reason of claims thereunder against such
other properties.
(c) Mortgagor shall deliver to Mortgagee duplicate
originals of all insurance policies that Mortgagor is required to
maintain pursuant to this Section 5.10. Mortgagee shall not be
responsible for effecting or renewing any insurance or for the
responsibility or solvency of the insurers.
(d) Mortgagor shall give written notice to Mortgagee
immediately upon obtaining knowledge of any Casualty which (i)
results in damage, loss or destruction in an amount in excess of
$5,000,000 to any buildings or improvements on the Premises
and/or any Tangible Personal Property or (ii) pursuant to any
Superior Instrument Requirement, would require the deposit of
insurance proceeds with the Depositary, or action or proceeding
with respect thereto. Whenever the Superior Instrument
Requirements require or permit the selection of the Depositary by
Mortgagor, Mortgagor shall select the Insurance Trustee as the
Depositary. Within 30 days after any Casualty which results in
any damage, loss or destruction in an amount in excess of
$10,000,000 to any buildings or improvements on the Premises
(50)
<PAGE>
and/or any Tangible Personal Property, Mortgagor shall deliver to
Mortgagee a certificate of an Architect stating whether, in such
Architect's opinion, applicable Legal Requirements permit the
Restoration of said buildings and improvements for the same uses
and to the same size and quality in all material respects, as
existed immediately prior to the Casualty (and if said
certificate states that Legal Requirements do not permit such
Restoration, said certificate shall describe the manner closest
approximating such criteria to which the buildings and
improvements could be so restored and shall be accompanied by a
Certificate Of Appraised Value dated not more than 10 days prior
to delivery setting forth the Appraised Value immediately prior
to the Casualty and the estimated Appraised Value immediately
after the Restoration). If Mortgagor is required to deliver such
Certificates of Appraised Value and if based on such Certificates
of Appraised Value immediately after Restoration, (i) the
aggregate Outstanding Amount of Indebtedness of the Mortgagor
immediately after such Restoration shall exceed the greater of
(A) 80% of the Appraised Value immediately after such Restoration
or (B) the quotient of the Outstanding Amount of Indebtedness of
the Mortgagor immediately prior to such Casualty divided by the
Appraised Value immediately prior to the Casualty multiplied by
the Appraised Value immediately after such Restoration, or (ii)
applicable Legal Requirements do not permit the Restoration of
the Casino Hotel for use as a casino and hotel complex, then, in
either of such events, the proceeds of any insurance shall not be
applied to Restoration but shall instead be paid and delivered to
Mortgagee to the extent of the then Outstanding Amount of the
Senior Partnership Note and any other interest or other sums due
hereunder or thereunder to be applied to the satisfaction of this
Mortgage to the extent proceeds are available for such purpose
and provided that no additional sums are due to the Trustee or
the Holders under the Mortgage Senior Partnership Notes or the
Senior Note Indenture, the balance of any net insurance proceeds
shall be paid to Mortgagor.
(e) Subject to the provisions of Subsection 5.10(d), if a
Casualty occurs, the following shall apply:
(i) If the cost of Restoration is less than
$10,000,000, the net insurance proceeds shall be paid by
Mortgagee to Mortgagor (unless the Superior Instrument
Requirements provide that the same shall be paid to the
Depositary).
(ii) If the cost of Restoration is $10,000,000 or more
or if the Superior Instrument Requirements provide that the
same shall be paid to the Depositary, the net insurance
proceeds shall be paid by Mortgagee to the Insurance Trustee
(or other Depositary required by the Superior Instrument
Requirements, provided that such Depositary holds such
(51)
<PAGE>
proceeds in trust for purposes of paying the costs of
Restoration).
(iii) Mortgagor shall commence with reasonable
promptness under the circumstances and thereafter with due
diligence proceed to perform and complete in a good and
workmanlike manner the restoration, repair, replacement or
rebuilding of the damage or destruction resulting from the
Casualty (all such restoration, repair, replacement and
rebuilding following a Casualty or a Taking are referred to
as "Restoration") in accordance with the plans and
specifications submitted to the Insurance Trustee, in
conformance with all Legal Requirements and Superior
Instrument Requirements, and in accordance with the further
provisions of this Subsection (e), regardless of the extent
of any such Casualty and whether or not net insurance
proceeds, if any, shall be available or, if available, shall
be sufficient, for the purpose of the Restoration. All
Restoration work shall be performed in accordance with the
applicable provisions of Section 5.12 and in conformance
with all Superior Instrument Requirements, Legal
Requirements and Insurance Requirements and, prior to
commencing any Restoration, Mortgagor shall obtain all
Permits necessary in connection therewith, and shall obtain,
and keep in full force and effect until the completion of
such Restoration, such additional insurance as the Insurance
Trustee and Superior Instrument Requirements may require.
The plans and specifications for the Restoration shall be
accompanied by a Mortgagor's Certificate and an Opinion of
Counsel to the effect that upon the completion of the
Restoration pursuant to the plans and specifications, the
Premises and all buildings and improvements thereon will
comply with all Superior Instrument Requirements, Legal
Requirements and Insurance Requirements.
(iv) Any insurance proceeds which Mortgagor receives
shall be held by Mortgagor in trust for the purpose of
paying the cost of the Restoration, except as otherwise
provided herein.
(v) Any net insurance proceeds that the Insurance
Trustee holds pursuant to this Subsection (e), shall be
deposited in an interest-bearing investment reasonably
designated by Mortgagor (to the extent Mortgagor is
permitted to designate such investment under the Superior
Instrument Requirements) (and the interest thereon shall be
added to such proceeds) and shall be paid by the Insurance
Trustee to reimburse Mortgagor for, or to make payment for,
the Restoration, after the Insurance Trustee deducts
therefrom the amount of any reasonable costs and expenses
incurred in connection with the performance of its
obligations under this Section 5.10. The Insurance Trustee
(52)
<PAGE>
shall make such payments not more frequently than once every 30
days upon the written request of Mortgagor (unless more frequent
payments are required by Superior Instrument Requirements), by
paying to Mortgagor or the persons named in the certificate
described in clause (vi) of this Subsection (e) the respective
amounts stated in such certificate from time to time as the
Restoration progresses, provided Mortgagor has complied with the
requirements of this Subsection (e) and such payment is permitted
by any applicable Superior Instrument Requirements. Mortgagor's
request shall be accompanied by (A) the certificate described in
clause (vi) of this Subsection (e) and (B) a title company or
official search, or other evidence reasonably acceptable to the
Insurance Trustee, showing that there have not been filed with
respect to the Premises, any vendor's, contractor's, mechanic's,
laborer's or materialman's statutory or similar lien which has
not been discharged of record (or bonded against or secured by
other security) or any other encumbrance irrespective of its
priority (other than Permitted Encumbrances).
(vi) The certificate required by clause (v) of this
Subsection (e) shall (A) be a Mortgagor's Certificate,
countersigned by the Architect in charge of the Restoration
with respect to the matters described in (1) and (5) below,
(B) be dated not more than 10 days prior to such request and
(C) set forth (in addition to any other requirements
contained in any applicable Superior Instrument
Requirements) that:
(1) all of the Restoration theretofore performed
is in substantial compliance with the plans and
specifications theretofore submitted to the Insurance
Trustee and in compliance with all Superior Instrument
Requirements, Legal Requirements and Insurance
Requirements;
(2) the sum then requested either has been paid
by Mortgagor or is justly due to contractors,
subcontractors, materialmen, engineers, architects or
other persons who have rendered services or furnished
or contracted to deliver materials for the Restoration
therein specified, and the names and addresses of such
persons, a brief description of such services and
materials and the several amounts so paid or due to
each of said persons in respect thereof;
(3) no part of the amount requested has been or
is the basis in any previous or then pending request
for the withdrawal of net insurance proceeds, and that
the sum then requested does not exceed the value of the
services and materials described in the certificate;
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(4) except for the amount, if any, stated
pursuant to subclause (2) of this clause (vi) in such
certificate to be due for services or materials, and
except for amounts in dispute and/or customary
retainages, there is no outstanding indebtedness known
to the person signing such certificate, after due
inquiry, which is then due for labor, wages, materials,
supplies or services in connection with such
Restoration; and
(5) the remaining cost, as estimated by the
persons signing such certificate, of the Restoration in
order to complete the same does not exceed the net
insurance proceeds remaining in the hands of Insurance
Trustee after payment of the sum requested in such
certificate or if such estimated cost does exceed such
insurance proceeds such certificate shall state the
amount of any such deficiency. If the certificate
states that such deficiency will exist, Mortgagor shall
deliver the amount of such deficiency in cash or cash
equivalent to the Insurance Trustee simultaneously with
the delivery of such certificate, which amount shall be
deemed insurance proceeds for purposes of this Section
5.10(e).
(vii) If net insurance proceeds shall be insufficient
to pay the entire cost of the Restoration, then, after
completion of the Restoration, Mortgagor shall pay the
deficiency. If all or any part of the net insurance
proceeds are not used for the Restoration in accordance with
this Subsection (e) (because such proceeds exceed the amount
required to complete the Restoration), then upon completion
of the Restoration in accordance with this Subsection (e),
such amount not so used, if held by the Insurance Trustee,
shall be paid to Mortgagor (if permitted by Superior
Instrument Requirements).
(f) Mortgagor shall not take out separate insurance,
concurrent in form or contributing in the event of loss with that
required to be maintained pursuant to this Section 5.10, unless
the same is permitted by Superior Instrument Requirements.
Mortgagor shall immediately notify Mortgagee whenever any such
separate insurance is taken out and shall promptly deliver to
Mortgagee a duplicate original of the policy of such insurance, a
copy thereof certified by the insurer or a certificate thereof.
Provided that no Event of Default has occurred and is continuing,
all net business interruption insurance proceeds shall be paid to
Mortgagor, to be segregated from the other funds of Mortgagor and
held in trust by Mortgagor for the following purposes and in the
following order of priority: (i) for the payment of Impositions
and amounts due under the Facility Leases and Superior Mortgage,
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(ii) for debt service for the estimated period of Restoration
(for purposes of this Subsection 5.10(f), interest and principal
payments due on any payment date under the Senior Partnership
Note will be deemed to accrue in equal daily installments
beginning the day after the immediately preceding payment date
and ending on such payment date), and (iii) for any other expense
incurred in connection with the operation or business of the
Casino Hotel.
(g) Insurance claims by reason of damage or destruction to
any portion of the Trust Estate may be adjusted by Mortgagor, but
Mortgagee shall have the right (but not the obligation) to join
Mortgagor in adjusting, and approving the adjustment of, any such
loss except in the event of a loss where the amount of insurance
reasonably anticipated to be received with respect to such loss
is less than $5,000,000, and Mortgagor shall assist Mortgagee in
any such adjustment at the request of Mortgagee. If Mortgagee at
its election as aforesaid joins Mortgagor in any adjustment
process, then Mortgagee's approval of the adjustment shall not be
unreasonably withheld.
(h) Notwithstanding anything contained herein to the
contrary, if an Event of Default shall have occurred and be
continuing, Mortgagee may, at its option, (A) refrain from paying
to Mortgagor or the Insurance Trustee any net insurance proceeds
or (B) instruct the Insurance Trustee to pay to Mortgagee any
insurance proceeds then held by the Insurance Trustee, as the
case may be.
Section 5.11. Limitations on Building Demolition,
Alterations, Improvements and New Construction.
Mortgagor shall not authorize, permit or make any
demolition, alteration or improvement of any building, structure
or other improvements included in the Trust Estate or any new
construction on any part of the Trust Estate, except in
conformity with and subject to the limitations hereinafter in
this Section 5.11 set forth and set forth in the Senior Note
Indenture.
Unless an Event of Default shall have occurred and be
continuing, Mortgagor shall have the right at all times to make
or permit such demolition, alterations, improvements or new
construction, structural or otherwise (herein sometimes called
collectively "Alterations" and each, individually, an
"Alteration"), of the Trust Estate, to be made in all cases
subject to each of the following conditions:
(a) No Alteration shall be undertaken or carried out except
in conformity with all Superior Instrument Requirements, Legal
Requirements and Insurance Requirements.
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(b) If the estimated cost of any Alteration, together with
other Alterations that constitute a single construction plan or
project (whether or not accomplished in several stages or
procedures), exceeds $5,000,000, the building or buildings,
structures or other improvements as so improved or altered, upon
the completion of the work, shall be of a value not less than the
value of such building or buildings, structures or other
improvements immediately prior to the making of such Alteration.
(c) Any Alteration which is structural in nature or
involves an estimated cost of more than $5,000,000 shall be
conducted under the supervision of an Architect, and no such
Alteration shall be undertaken until 10 days after there shall
have been filed with Mortgagee detailed plans and specifications
and cost estimates therefor, prepared and approved in writing by
such Architect and accompanied by a certificate of such Architect
stating that such plans and specifications conform to all
applicable provisions of this Section 5.11.
(d) No Alteration involving an estimated cost of more than
$5,000,000 shall be undertaken until Mortgagor has furnished to
Mortgagee, at Mortgagor's sole cost and expense, a surety bond or
bonds, covering performance, and labor and material payments with
respect to the work to be so performed, naming Mortgagee as
obligee, issued by a responsible surety company, authorized to do
business in the State of New Jersey, in a form generally and
customarily used by such surety in an amount equal to the
estimated cost of construction of the work covered by the plans
and specifications therefor, guaranteeing the performance and
completion of such construction, substantially in conformity with
the said plans and specifications and within a reasonable time,
subject to delays by fire, strikes, lock-out, acts of God,
inability to obtain labor or materials, governmental
restrictions, enemy action, civil commotion or unavoidable
Casualty or other similar causes beyond the control of Mortgagor,
free and clear of all liens, claims and liabilities for the cost
of such Alterations. If such surety bond or bonds shall be
unobtainable Mortgagor shall deliver to Mortgagee security by
cash, letter of credit or other guarantee, affording
substantially the same protection as would such bond or bonds.
(e) All work done in connection with any Alterations shall
be done promptly and in good and workmanlike manner. The work in
connection with any Alteration shall be prosecuted with
reasonable dispatch, delays due to fire, strikes, lock-outs, acts
of God, inability to obtain labor or materials, governmental
restrictions, enemy action, civil commotion or unavoidable
Casualty or similar causes beyond the control of Mortgagor
excepted.
(f) If the estimated cost of Alterations exceeds
$5,000,000, Mortgagor shall have delivered to Mortgagee (i) prior
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to the commencement of such Alterations, copies of all Permits
required for the commencement of such work together with a
certificate of the Architect or an Opinion of Counsel to the
effect that all Permits required for the commencement of such
Alterations have been obtained; and (ii) within a reasonable
period of time after the completion of the Alterations, copies of
all Permits required in connection with the completion thereof,
together with either an Opinion of Counsel or a certificate of
the Architect that all such Permits have been so obtained by
Mortgagor and that Mortgagor has complied with all the
requirements of this Section 5.11.
(g) No Alterations of any kind shall be made which shall
change the use or reduce the size or quality of any building,
structure or other improvements in any material respect or which
shall change the use of the Casino Hotel from its use as a gaming
and hotel facility.
(h) No Alterations costing in excess of $5,000,000,
together with other Alterations that constitute a single
construction plan or project (whether or not accomplished in
several stages or procedures), shall be made if such Alterations
are not expected to be completed at least 120 days prior to the
Stated Maturity of the Senior Partnership Note (except if such
Alterations are required in order to comply with Legal
Requirements or Superior Instrument Requirements).
(i) Mortgagor shall maintain at all times during the
performance of Alterations, in addition to any insurance required
to be maintained under Section 5.11 hereof, appropriate workers'
compensation insurance covering all persons employed for such
Alterations to the extent required by applicable law, and
comprehensive general liability insurance expressly covering the
additional hazards due to such Alterations. Each such policy of
insurance shall comply with the provisions of Section 5.10(b),
and Mortgagor shall comply with Subsections (c), (d), (e), (f),
(g) and (h) of Section 5.10 in connection with all such
insurance.
Section 5.12. Leases.
Mortgagor shall not:
(a) lease the Trust Estate substantially as an entirety to
any Person (except in accordance with the provisions of Article
Eight of the Senior Note Indenture), nor shall Mortgagor lease
either the Casino Hotel or the Casino or the Hotel or any parking
facilities substantially as an entirety to any Person;
(b) enter into any Lease, or renew, modify, extend,
terminate, or amend any Lease, except in the ordinary course of
business of operating the Casino Hotel;
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(c) receive or collect, or permit the receipt or collection
of, any rental payments under any Lease more than one month in
advance of the respective periods in respect of which they are to
accrue, except that, in connection with the execution and
delivery of any Lease or of any amendment to any Lease, rental
payments thereunder may be collected and received in advance in
an amount not in excess of three months' rent and/or a security
deposit may be required thereunder in an amount not exceeding one
year's rent;
(d) collaterally assign, transfer or hypothecate (other
than to Mortgagee hereunder, to the holder of the Senior Note
Guarantee Mortgage or to the holder of the Superior Mortgage, but
in each case only with respect to the property secured by such
mortgage) (i) any rental payment under any Lease whether then due
or to accrue in the future, (ii) the interest of Mortgagor as
landlord under any Lease or (iii) the rents, issues or profits of
the Trust Estate;
(e) after the date hereof, enter into any Lease, or renew
any Lease, unless such Lease contains terms to the effect as
follows:
(i) the Lease and the rights of the tenants thereunder
shall be subject and subordinate to the rights of Mortgagee
under this Mortgage and the holders of the Superior
Mortgage,
(ii) the Lease may be assigned by the landlord
thereunder to Mortgagee, and
(iii) the rights and remedies of the tenant in respect
of any obligations of the landlord thereunder shall be
nonrecourse as to any assets of the landlord other than its
equity in the building in which the leased premises are
located or the proceeds thereof; or
(f) modify any Lease with respect to the matters described
in clauses (i) through (iii) of paragraph (e).
If Mortgagor enters into a Lease (other than with an
Affiliate of Mortgagor) for a term of not less than 3 years,
Mortgagee shall deliver a non-disturbance and attornment
agreement substantially in the form of Schedule 7 hereto,
following receipt of a certificate of a leasing broker (who is
not an Affiliate of Mortgagor or the broker involved in such
transaction) experienced with respect to leases of commercial
space in the Atlantic City area stating that the rent under the
Lease throughout the term thereof is not less than fair market
rent and the other terms of the Lease are fair and reasonable in
the commercial leasing market. Mortgagor shall, upon demand,
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reimburse Mortgagee for any costs and expenses (including
reasonable attorneys' fees and disbursements) incurred by
Mortgagee in connection with the preparation, review and delivery
of such non-disturbance and attornment agreements.
Promptly after the execution and delivery hereof, Mortgagor
shall cause the lessee under each Lease now in effect, and
promptly after each Lease is executed or becomes effective after
the date of the execution and delivery hereof, Mortgagor shall
cause the lessee under each such Lease, to be duly notified in
writing (unless the substance and effect of such notice shall be
contained in such Lease) of the subjection of the owner's
interest, as lessor, in and to such Lease to the lien of this
Mortgage and of the name and address of Mortgagee. Each such
notice shall state that the lease of such lessee is a Lease as
herein defined. If a new Mortgagee is at any time appointed
hereunder or the address of Mortgagee shall at any time be
changed, Mortgagor shall cause each lessee under each Lease to be
promptly notified in writing of the name and address of such new
Mortgagee or the new address of Mortgagee. Mortgagor shall use
reasonable efforts (but shall not be obligated to incur any
expenditure other than de minimis amounts) to obtain from each
lessee under each Lease to whom any notice is sent pursuant to
this paragraph an acknowledgment of receipt of such notice, and
Mortgagor shall promptly deliver to Mortgagee,, upon request, a
copy of each such acknowledgment of receipt which it is able to
obtain. Mortgagee shall not be responsible for securing or
causing Mortgagor to secure any such acknowledgment.
Section 5.13. Compliance Certificates.
Mortgagor shall deliver to Mortgagee, within 120 days after
the end of each fiscal year of Mortgagor, a Mortgagor's
Certificate stating that
(a) a review of the activities of Mortgagor during such
year and of performance under this Mortgage has been made under
the signer's supervision, and
(b) to the best of each signer's knowledge, based on such
review, Mortgagor has fulfilled all of Mortgagor's obligations
under this Mortgage throughout such year, or, if there has been a
default in the fulfillment of any such obligation, specifying
each such default known to him and the nature and status thereof.
Promptly after Mortgagor may reasonably be deemed to have
knowledge of a default hereunder, Mortgagor shall deliver to
Mortgagee a notice specifying the nature and period of existence
thereof and the action Mortgagor is taking and proposes to take
with respect thereto.
Section 5.14. To Keep Books; Inspection by Mortgagee.
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Mortgagor will keep proper books of record and account, in
which full and correct entries shall be made of all dealings or
transactions of or in relation to the Senior Partnership Note and
the properties, business and affairs of Mortgagor in accordance
with generally accepted accounting principles consistently
applied. Said books shall be maintained in an office located
either in Atlantic City, New Jersey or in the Borough of
Manhattan, City of New York, State of New York. Mortgagor shall
at any and all times, upon request of Mortgagee and at the
expense of Mortgagor, permit Mortgagee and its representatives to
inspect the Casino Hotel and any other buildings, structures and
improvements now or hereafter located on the Land and the books
of account, records, reports and other papers of Mortgagor, and
to make copies and extracts therefrom, and will afford and
procure a reasonable opportunity to make any such inspection
(provided, that any such inspection shall not unreasonably
interfere with the business operations of Mortgagor), and
Mortgagor will furnish to Mortgagee any and all information as
Mortgagee may reasonably request, with respect to the performance
by Mortgagor of its covenants in this Mortgage.
Section 5.15. Advances by Mortgagee.
If Mortgagor shall fail to perform any of the covenants,
terms, provisions or conditions contained in this Mortgage and
such failure shall continue for 10 days following notice thereof
given by Mortgagee (or at any time, without notice, in case of
emergency), Mortgagee may (but is not obligated to), at any time
and from time to time, take any action or make advances, to
effect performance of any such covenant, term, provision or
condition on behalf of Mortgagor; and all moneys so used, paid or
advanced by Mortgagee and all reasonable costs and expenses
incurred by Mortgagee in connection therewith, together with
interest on all of the same at the rate of interest set forth in
the Senior Partnership Note, shall be immediately due and payable
by Mortgagor to Mortgagee and all such moneys, costs and expenses
shall be secured by the lien of this Mortgage prior to the Senior
Partnership Note. No such advance or payment by Mortgagee shall
relieve Mortgagor from any default hereunder or impair any right
or remedy of Mortgagee.
Section 5.16. Waiver of Stay, Extension or Usury Laws.
Mortgagor covenants (to the extent that it may lawfully do
so) that it will not at any time insist upon, or plead, or in any
manner whatsoever claim or take the benefit or advantage of, any
usury, stay or extension law or any other law which would
prohibit or forgive Mortgagor from paying all or any portion of
the obligations secured by this Mortgage, wherever enacted, now
or at any time hereafter in force, or which may otherwise affect
the covenants or the performance of this Mortgage; and Mortgagor
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(to the extent that it may lawfully do so) hereby expressly
waives all benefit or advantage of any such law, and covenants
that it shall not hinder, delay or impede the execution of any
power herein granted to Mortgagee, but shall suffer and permit
the execution of every such power as though no such law had been
enacted.
Section 5.17. Eminent Domain.
(a) Mortgagor shall notify Mortgagee immediately upon
obtaining knowledge of any Taking affecting the Trust Estate or
any part thereof. If the Taking is a Taking of less than the
whole or substantially all of the Premises but (i) is estimated
to result in an award of more than $10,000,000 or (ii) the Taking
will interfere with or adversely affect the operation of the
Casino Hotel (other than any portion thereof consisting solely of
unimproved, paved or unpaved surface parking) other than to a de
minimis extent, then within 30 days after such Taking, Mortgagor
shall deliver to Mortgagee a certificate of an Architect stating
whether, in such Architect's opinion, applicable Legal
Requirements permit the Restoration of any buildings and
improvements for the same uses and to the same size and quality
in all material respects as existed immediately prior to the
Taking (and if said certificate states that Legal Requirements do
not permit such Restoration, said certificate shall describe the
manner closest approximating such criteria to which the buildings
and improvements could be so restored and shall be accompanied by
a Certificate of Appraised Value dated not more than 10 days
prior to delivery setting forth the Appraised Value immediately
prior to the Taking and the estimated Appraised Value immediately
after the permitted Restoration). If Mortgagor is required to
deliver such Certificate of Appraised value and if based on such
Certificate of Appraised Value immediately after Restoration, (i)
the Outstanding Amount of Indebtedness of the Partnership
immediately after such Restoration shall exceed the greater of
(A) 80% of the Appraised Value immediately after such Restoration
or (B) the quotient of the Outstanding Amount of Indebtedness of
the Partnership immediately prior to such Taking divided by the
Appraised Value immediately prior to the Taking multiplied by the
Appraised Value immediately after such Restoration, or (ii)
applicable Legal Requirements do not permit the Restoration of
the Casino Hotel for use as a casino and hotel complex, then, in
any of such events, the Taking shall be deemed a Taking of "the
whole or substantially all of the Premises." The Taking shall be
deemed a Taking of "less than the whole or substantially all of
the Premises" if Mortgagor is not required to deliver a
Certificate Of Appraised Value or if, at the time of delivery of
such Certificate, neither of the tests set forth in clauses (i)
and (ii) is met.
(b) If at any time there shall occur a Taking of less than
the whole or substantially all of the Premises and the award or
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awards resulting therefrom payable to Mortgagor (and not to any
lessor under any Facility Lease or the holder of any Superior
Mortgage) (after there shall have been first deducted the fees
and expenses incurred in connection with the termination,
settlement and collection of such award or awards, including,
without limitation, reasonable counsel fees and expenses,
hereinafter referred to as "Settlement Costs") (i) shall be less
than $10,000,000 (except to the extent that the Insurance Trustee
or a Depositary is required to hold such amount pursuant to a
Superior Instrument Requirement), the entire amount of such award
shall be paid to Mortgagor; and (ii) if such award is $10,000,000
or more, the entire amount of such award shall be paid to the
Insurance Trustee (or other Depositary required by a Superior
Mortgage, provided that such Depositary holds such award in trust
for purposes of paying the cost of Restoration). In either
event, such awards shall be applied to the cost of Restoration of
the Trust Estate as nearly as practicable to their uses, value
and condition immediately prior to the Taking (except to the
extent otherwise provided by Superior Instrument Requirements).
Mortgagor shall promptly commence and with due diligence perform
the Restoration in accordance with clauses (iii), (iv) and (vii)
of Subsection 5.10(e) (after substituting the words "Taking" for
"Casualty" and "award" for "net insurance proceeds"), at no cost
to Mortgagee. All claims or suits arising out of any Taking may
be settled by Mortgagor, except that Mortgagee shall have the
right (but not the obligation) to participate in such claim or
suit, and to approve settlement thereof (and notwithstanding
anything in the Facility Leases to the contrary, Mortgagor shall
not agree to any settlement or compromise of the amount of any
such claim or suit, except a claim or suit where the amount
reasonably anticipated to be received by Mortgagor is less than
$5,000,000). If Mortgagee at its election as aforesaid joins
such claim or suit, Mortgagee's approval of such settlement shall
not be unreasonably withheld. The Insurance Trustee shall
promptly pay such sums as are received by it from such Taking
from time to time in accordance with the procedures set forth in
clauses (v) and (vi) of Subsection 5.10(e) (after substituting
the words "Taking" for "Casualty" and "award" for "net insurance
proceeds").
(c) If at any time there shall occur a Taking of the whole
or substantially all of the Premises, then the award payable to
Mortgagor shall not be applied to Restoration but shall instead
be paid and delivered to the Trustee (subject to the rights of
the lessors under any Facility Leases and the holders of any
Superior Mortgages) to the extent of the then Outstanding Amount
of the Senior Partnership Note and any other interest or other
sums due hereunder or thereunder to be applied to the
satisfaction of this Mortgage to the extent proceeds are
available for such purpose and provided that no additional sums
are due the Trustee or the Holders under the Mortgage Senior
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Partnership Notes or the Senior Note Indenture, the balance of
any award shall be paid to Mortgagor.
(d) Notwithstanding anything contained herein to the
contrary, if an Event of Default shall have occurred and is
continuing, Mortgagee may, at its option, (i) refrain from paying
to Mortgagor or the Insurance Trustee any award or (ii) instruct
the Insurance Trustee to pay to Mortgagee any award then held by
the Insurance Trustee, as the case may be.
Section 5.18. Facility Leases.
(a) Mortgagor shall do or cause to be done all things
necessary to preserve and keep unimpaired the rights of
Mortgagor, as lessee under all Facility Leases, and, to prevent
any termination, surrender, cancellation, forfeiture or
impairment of any thereof. Mortgagor shall at all times fully
perform and comply with all agreements, covenants, terms and
conditions imposed upon or assumed by it as lessee under each of
the Facility Leases (including, without limitation, the covenant
to pay rent and all taxes, assessments and other charges
mentioned therein) prior to the expiration of any notice and/or
cure period provided in each such Facility Lease. Upon receipt
by Mortgagee from a Lessor of any written notice of default by
the lessee thereunder, Mortgagee may rely thereon and take any
action Mortgagee deems necessary in its sole discretion to
prevent or to cure any default by Mortgagor in the performance of
or compliance with any of the agreements, covenants, terms or
conditions imposed upon or assumed by Mortgagor as lessee under
such Facility Lease, even though the existence of such default or
the nature thereof be questioned or denied by Mortgagor or by any
party on behalf of Mortgagor. Without limiting the generality of
Section 3.9, Mortgagor hereby expressly grants to Mortgagee, and
agrees that Mortgagee shall have, the absolute and immediate
right to enter in and upon the Premises or any part thereof to
such extent and as often as Mortgagee, in its sole discretion,
deems necessary or desirable for the purpose permitted by the
immediately preceding sentence, subject only to applicable Legal
Requirements. Without limiting Mortgagor's obligations or
Mortgagee's rights set forth above or limiting Mortgagee's other
remedies under this Mortgage, Mortgagee may pay and expend such
sums of money as Mortgagee in its sole discretion deems necessary
for any such purpose, and Mortgagor hereby agrees to pay to
Mortgagee immediately and without demand, all such sums referred
to above, so paid and expended by Mortgagee, together with
interest thereon from the date of each such payment at the
highest rate of interest set forth in the Senior Partnership
Note. All sums so paid and expended by Mortgagee, and the
interest thereon, shall be added to and be secured by the lien of
this Mortgage.
(b) Mortgagor further covenants and agrees as follows:
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(i) Mortgagor shall not surrender, terminate or cancel
any Facility Lease, and shall not without the consent of
Mortgagee modify, change, supplement, alter or amend any
Facility Lease either orally or in writing if an impairment
of the security granted under this Mortgage would result
therefrom. As further security for the repayment of the
indebtedness secured hereby and for the performance of the
covenants herein and in each Facility Lease contained,
Mortgagor hereby assigns to Mortgagee all of Mortgagor's
rights, privileges and prerogatives as lessee under each
Facility Lease to terminate, cancel, modify, change,
supplement, alter or amend such Facility Lease and any such
termination, cancellation, modification, change, supplement,
alteration or amendment of a Facility Lease without the
prior consent thereto by Mortgagee shall be void and of no
force and effect. Unless (1) an Event of Default has
occurred and is continuing and (2) either (A) there has been
an acceleration of maturity of the Senior Partnership Note
pursuant to Section 3.2 or (B) Mortgagee exercises its
rights under Section 3.9, Mortgagee shall have no right to
terminate, cancel, modify, change, supplement, alter or
amend any Facility Lease.
(ii) Solely for the benefit of Mortgagee, Trustee, the
Holders and no other person, no release or forbearance of
any of Mortgagor's obligations under any Facility Lease,
pursuant to such Facility Lease or otherwise, shall release
Mortgagor from any of Mortgagor's other obligations under
this Mortgage.
(iii) Unless Mortgagee shall otherwise expressly
consent in writing, the fee title to the Leased Facilities
and Mortgagor's leasehold estates therein shall not merge
and shall always remain separate and distinct,
notwithstanding the union of said estates either in the
Lessor or in the lessee, or in a third party by purchase or
otherwise
(iv) Mortgagor shall promptly notify Mortgagee in
writing of any request made by Mortgagor, as lessee under
any Facility Lease, or any of the Lessors, for arbitration
proceedings under any Facility Lease and of the institution
of any arbitration proceedings, as well as all proceedings
thereunder. Mortgagor shall promptly deliver to Mortgagee a
copy of the determination of the arbitrators in each such
arbitration proceeding. Mortgagee shall have the right to
participate in such arbitration proceedings in association
with Mortgagor or on its own behalf as an interested party.
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(v) Mortgagor shall not consent to the subordination
of any Facility Lease to any mortgage, deed of trust or
other lien on the fee interest of the Lessor.
(vi) If Mortgagor acquires fee simple title or any
other estate, title or interest in any Leased Facility,
Mortgagor shall promptly notify Mortgagee of such
acquisition and, on request by Mortgagee, shall cause to be
executed and recorded all such other and further assurances
or other instruments in writing as may in the opinion of
Mortgagee be required or desirable to carry out the intent
and meaning of clause (x) of Granting Clause Third.
(vii) Within 5 days after Mortgagor's receipt of any
notice of any motion, application or effort to reject any
Facility Lease by any Lessor or any trustee arising from or
in connection with any case, proceeding or other action
commenced or pending by or against any Lessor under the Code
or any comparable provision contained in any present or
future federal, state, local, foreign or other statute, law,
rule or regulation ("Comparable Provision"), Mortgagor shall
give notice thereof to Mortgagee. Mortgagor hereby (A)
assigns to Mortgagee any and all of Mortgagor's rights as
lessee under Section 365(h) of the Code or any Comparable
Provision and (B) covenants that it shall not elect to treat
any Facility Lease as terminated pursuant to Section 365(h)
of the Code or any Comparable Provision without the prior
consent of Mortgagee and (C) agrees that any such election
by Mortgagor without such consent shall be null and void.
(viii) Without limiting the generality of the
foregoing, to the extent permitted by applicable law,
Mortgagor hereby unconditionally assigns, transfers and sets
over to Mortgagee all of Mortgagor's claims and rights to
the payment of damages arising from any rejection by Lessor
of any Facility Lease under the Code or any Comparable
Provision. Mortgagee shall have the right to proceed in its
own name or in the name of Mortgagor in respect of any
claim, suit, action or proceeding relating to the rejection
of any Facility Lease, including, without limitation, the
right to file and prosecute, in cooperation with Mortgagor,
any proofs of claim, complaints, motions, applications,
notices and other documents, in any case in respect of
Lessor under the Code or any Comparable Provision. This
assignment constitutes a present, irrevocable and
unconditional assignment of the foregoing claims, rights and
remedies, and shall continue in effect until all of the
indebtedness and obligations secured by this Mortgage shall
have been satisfied and discharged in full. Any amounts
received by Mortgagee in damages arising out of the
rejection of any Facility Lease as aforesaid shall be
applied first to all reasonable costs and expenses of
(65)
<PAGE>
Mortgagee (including, without limitation, reasonable attorneys'
fees, disbursements and court costs) incurred in connection with
the exercise of any of its rights or remedies under this Section
5.18, and thereafter as provided in Section 3.3.
(ix) If there shall be filed by or against Mortgagor a
petition under the Code or any Comparable Provision and
Mortgagor, as lessee under any Facility Lease, shall
determine to reject such Facility Lease, Mortgagor shall
give Mortgagee not less than 10 days' prior notice of the
date on which Mortgagor shall apply to the Bankruptcy Court
or other judicial body with appropriate jurisdiction for
authority to reject such Facility Lease. Mortgagee shall
have the right, but not the obligation, to serve upon
Mortgagor within such 10-day period a notice stating that
(a) Mortgagee demands that Mortgagor assume and assign such
Facility Lease to Mortgagee pursuant to Section 365 of the
Code or any Comparable Provision and (b) Mortgagee covenants
to cure or provide adequate assurance of prompt cure of all
defaults and provide adequate assurance of future
performance under such Facility Lease. If Mortgagee serves
upon Mortgagor the notice described in the preceding
sentence, Mortgagor shall not seek to reject such Facility
Lease and shall comply with the demand provided for in
clause (a) of the preceding sentence within 30 days after
the notice shall have been given subject to the performance
by Mortgagee of the covenant provided for in clause (b) of
the preceding sentence. The foregoing provisions of this
Section 5.18(ix) shall not apply to the extent not permitted
by applicable law. Effective upon the entry of an order for
relief in respect of Mortgagor under Chapter 7 of the Code
or any Comparable Provision, Mortgagor hereby assigns and
transfers to Mortgagee a non-exclusive right to apply to the
Bankruptcy Court or other judicial body with appropriate
jurisdiction for an order extending the period during which
such Facility Lease may be rejected or assumed.
(x) Mortgagor shall promptly give to Mortgagee copies
of (A) all notices of default and (B) any other
communications or notices with respect to events that relate
to the possible impairment of the security of this Mortgage,
which Mortgagor shall give or receive under any Facility
Lease and shall promptly notify Mortgagee of any default
under any Facility Lease on the part of the Lessor or
Mortgagor.
(xi) Mortgagor shall enforce with due diligence all of
the obligations of the Lessor under each Facility Lease, to
the end that Mortgagor may enjoy all of the rights and
privileges granted to it under the Facility Leases.
(66)
<PAGE>
(xii) Mortgagor shall notify Mortgagee within 5 days
after the transfer of a fee interest in any Leased Facility
or any portion thereof to or from an Affiliate.
(xiii) No Affiliate of Mortgagor shall at any time
hereafter acquire fee title to the Leased Land or any
portion thereof unless simultaneously with such acquisition
such Affiliate and Mortgagor execute and exchange (and
deliver to the Trustee an executed counterpart of) an
instrument in form and substance satisfactory to Mortgagee
providing that so long as such Affiliate owns such fee title
(A) such Affiliate shall not terminate the applicable
Facility Lease for any reason whatsoever (including, without
limitation, due to the default of Mortgagor under such
FacilitY Lease) and (B) such Affiliate shall not accept,
and, if tendered by Mortgagor shall promptly return to
Mortgagor, any payment of rent or other charges payable
under such Facility Lease in excess of the amount required
to pay the debt service and other sums payable under any
mortgage affecting such Affiliate's fee interest in the
applicable Leased Facility (and such Affiliate shall use
such funds only to pay its debt service obligations and
other sums payable under such mortgage) at any time that an
Event of Default, or a Default of the types described in
Section 3.1(a), (b) and (f) of this Mortgage or Section
5.1(a), (b), (f) or (g) of the Senior Note Indenture, shall
have occurred and be continuing under this Mortgage or the
Senior Note Indenture.
(c) Subject to the provisions of Subsection 5.18(b)(iii),
if both the lessor's and lessee's estates under any Facility
Lease or any portion thereof shall at any time become vested in
one owner, this Mortgage and the lien created hereby shall
nevertheless not be destroyed or terminated by application of the
doctrine of merger and, in such event, Mortgagee shall continue
to have all of the rights and privileges of a first leasehold
mortgagee.
(d) Mortgagor hereby acknowledges that if any Facility
Lease shall be terminated prior to the natural expiration of its
term due to default by the lessee thereunder, and if pursuant to
such Facility Lease, Mortgagee or its designee shall acquire from
the Lessor a new lease of the Leased Facility or any portion
thereof, Mortgagor shall have no right, title or interest in or
to such lease or the leasehold estate created thereby, or the
options therein contained.
(e) Each Facility Lease hereafter entered into or assumed
by Mortgagor as lessee or sublessee shall contain provisions (i)
permitting the assignment of the same to Mortgagee and the
Trustee and permitting assignment without the lessor's consent if
this Mortgage is foreclosed; and (ii) providing protection to
(67)
<PAGE>
Mortgagee, as leasehold mortgagee, in form reasonably
satisfactory to Mortgagee.
Section 5.19. Superior Mortgage.
(a) Mortgagor shall at all times fully perform and comply
with all agreements, covenants, terms and conditions imposed upon
or assumed by it as mortgagor under the Superior Mortgage prior
to the expiration of any notice and/or cure period provided in
each such Superior Mortgage. If a notice of default has been
given by the holder of the Superior Mortgage, Mortgagee may rely
thereon and take any action Mortgagee deems necessary in its sole
discretion to prevent or to cure any default by Mortgagor in the
performance of or compliance with any of the agreements,
covenants, terms or conditions imposed upon or assumed by
Mortgagor as mortgagor under the Superior Mortgage even though
the existence of such default or the nature thereof be questioned
or denied by Mortgagor or by any party on behalf of Mortgagor.
Without limiting the generality of Section 3.9, Mortgagor hereby
expressly grants to Mortgagee, and agrees that Mortgagee shall
have, the absolute and immediate right to enter in and upon the
Premises or any part thereof to such extent and as often as
Mortgagee, in its sole discretion, deems necessary or desirable
for the purpose permitted by the immediately preceding sentence,
subject only to applicable Legal Requirements. Without limiting
Mortgagor's obligations or Mortgagee's rights set forth above or
limiting Mortgagee's other remedies under this Mortgage,
Mortgagee may (i) pay and expend such sums of money as Mortgagee
in its sole discretion deems necessary or desirable for any such
purpose and (ii) in its sole discretion prepay the Superior
Mortgage then in default, and Mortgagor hereby agrees to pay to
Mortgagee immediately and without demand, all such sums referred
to in (i) and (ii) above so paid and expended by Mortgagee,
together with interest thereon from the date of each such payment
at the highest rate of interest set forth in the Senior
Partnership Note. All sums so paid and expended by Mortgagee and
the interest thereon, shall be added to and be secured by the
lien of this Mortgage.
(b) Mortgagor further covenants and agrees:
(i) Mortgagor shall not, without first obtaining the
consent of Mortgagee in each instance: (A) modify, replace
or refinance the Superior Mortgage if (x) the collateral
securing the lien thereof would be increased thereby (other
than after-acquired property required by the terms of the
Superior Mortgage to be encumbered thereby) or (y) such
modification, replacement or refinancing violates any other
provision of this Senior Note Mortgage or the Senior Note
Indenture or (B) acquire or permit or suffer any Affiliate
of Mortgagor to acquire the Superior Mortgage or any
Interest therein;
(68)
<PAGE>
(ii) Mortgagor shall timely pay and perform all of the
obligations to be paid or performed by the mortgagor under
the Superior Mortgage, the note secured thereby and any
other instrument evidencing or securing the indebtedness
owing to any holder of the Superior Mortgage;
(iii) at any time and from time to time, Mortgagor
shall upon request of Mortgagee promptly use its reasonable
efforts to obtain an estoppel certificate or letter
addressed to Mortgagee from the holder of the Superior
Mortgage, such certificate or letter to be in such form as
Mortgagee shall reasonably request;
(iv) Mortgagor shall promptly give to Mortgagee copies
of (A) all notices of default or (B) any other notice or
communication with respect to events which relate to the
possible impairment of the security of this Mortgage, which
Mortgagor shall give or receive under the Superior Mortgage
and shall promptly notify Mortgagee of any default under the
Superior Mortgage on the part of Mortgagor.
Section 5.20. Indemnification.
Mortgagor shall protect, indemnify, hold harmless and defend
Mortgagee and its directors, officers, partners, shareholders,
agents, servants and employees from and against any and all
liabilities, obligations, claims, damages, penalties, causes of
action, costs and expenses (including, without limitation,
reasonable attorneys' fees, disbursements and court costs),
imposed upon or incurred by or asserted against Mortgagee by
reason of (a) any injury to or death of Persons or loss of or
damage to property occurring on or about the Premises or any part
thereof or the adjoining sidewalks, curbs, vaults and vault
spaces, if any, streets, alleys or ways, (b) any use, nonuse or
condition of the Premises or any part thereof or the adjoining
sidewalks, curbs, vaults and vault spaces, if any, streets,
alleys or ways, (c) any failure on the part of Mortgagor to
perform or comply with any of the terms of this Mortgage, (d)
performance of any labor or services or the furnishing of any
materials or other property in respect of the Premises or any
part thereof made or suffered to be made by or on behalf of
Mortgagor, (e) any negligence or tortious act on the part of
Mortgagor or any of its agents, contractors, lessees, licensees
or invitees, or (f) any work in connection with the Premises;
provided, that no amounts shall be payable to Mortgagee under
this Section 5.20 in respect of liabilities, obligations, claims,<PAGE>
(69)
<PAGE>
damages, penalties, causes of action, costs or expenses imposed
upon or incurred by or asserted against Mortgagee to the extent
the same result from any negligence or tortious act on the part
of Mortgagee or any of its agents, contractors, lessees,
licensees or invitees. All amounts payable to Mortgagee under
this Section 5.20 shall be payable on demand; provided, that with
respect to consequential damages (other than attorneys' fees,
disbursements and court costs imposed upon or incurred by
Mortgagee in connection therewith, which shall in all events be
payable on demand), no such amounts shall be payable until, and
to the extent that, (i) there has been entered the final
determination of a court of competent jurisdiction awarding such
consequential damages to the party or parties seeking such
damages or (ii) an agreement of settlement with respect thereto
(which shall have been previously approved by Mortgagor, such
consent not to be unreasonably withheld) shall have been executed
by Mortgagee and such party or parties. Any such amounts which
are not paid within 5 days after demand therefor by Mortgagee
shall bear interest at the rate set forth in the Senior
Partnership Note from the date of such demand and all such
amounts and interest thereon shall be secured by the lien of this
Mortgage. In case any action, suit or proceeding is brought
against Mortgagee by reason of any such occurrence, Mortgagor,
upon request of Mortgagee, shall, at Mortgagor's expense, resist
and defend such action, suit or proceeding or cause the same to
be resisted or defended by counsel designated by Mortgagor and
approved by Mortgagee, which approval shall not be unreasonably
withheld; provided, that Willkie, Farr & Gallagher is hereby
approved by Mortgagee.
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed and attested, all as of the day and
year first above written.
TRUMP'S CASTLE ASSOCIATES
Witness: ____________________ By: _________________________
Name:
Title:
TRUMP'S CASTLE FUNDING, INC.
Witness: ____________________ By: _________________________
Name:
Title:
(70)
<PAGE>
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the _____ day of December, 1993, before me personally came
Donald J. Trump, to me known, who, being by me duly sworn, did depose
and say that he resides at 721 Fifth Avenue, New York, New York; that
he is President of Trump's Castle Funding, Inc., one of the
corporations described in and which executed the above instrument;
that he knows the corporate seal of such corporation; that the seal
affixed to said instrument is such corporate seal; that it was so
affixed pursuant to authority of the Board of Directors of such
corporation; and that he signed his name thereto pursuant to like
authority.
(NOTARIAL SEAL)
_________________________
(71)
<PAGE>
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the _____ day of December, 1993, before me personally came
Donald J. Trump, to me known, who, being by me duly sworn, did depose
and say that he resides at 721 Fifth Avenue, New York, New York; that
he is President of Trump's Castle Funding, Inc., one of the
corporations described in and which executed the above instrument;
that he knows the corporate seal of such corporation; that the seal
affixed to said instrument is such corporate seal; that it was so
affixed pursuant to authority of the Board of Directors of such
corporation; and that he signed his name thereto pursuant to like
authority.
(NOTARIAL SEAL)
_________________________
(72)
<PAGE>
<PAGE>
SCHEDULE 1
OWNED LAND
All the real property located in the City of Atlantic City, County of
Atlantic, State of New Jersey and more particularly described as
follows:
Hotel Parcel:
All that certain real property hereinafter particularly described
situate, lying and being in the City of Atlantic City, County of
Atlantic and State of New Jersey.
BEGINNING at the point of intersection of the Northwesterly line of
Huron Avenue (100 feet wide) and the Northeasterly line of the
Atlantic - Brigantine Boulevard, said Boulevard also known as State
Highway Route 87, and extending thence
1. North 45 degrees 50' 06" West in and along the Atlantic-
Brigantine Boulevard, 56.63'; thence
2. North 19 degrees 16' 38" East, still in and along said
Boulevard, 81.94' to a point of curve; thence
3. Curving to the right in the arc of a circle having a radius
of 783.00', the arc length of 72.815' to a point of reverse curve;
thence
4. Curving to the left in the arc of a circle having a radius
of 837.00', the arc length of 77.836' to another point of reverse
curve; thence
5. Curving to the right in the arc of a circle having a radius
of 2946.00', the arc length of 1017.42' to a point; thence
6. North 44 degrees 34' 15" East, 135.02' to a point of curve;
thence
7. Curving to the right in the arc of a circle having a radius
of 2936.00', the arc length of 105.48' to a point; thence
8. South 27 degrees 28' 00" East, at right angles to Huron
Avenue 842.02' to the northwesterly line of Huron Avenue; thence
9. South 62 degrees 32' 00" West, in and along the
northwesterly line of Huron Avenue, 1229.40 feet to the point and
place of BEGINNING.
EXCEPTING THEREOUT AND THEREFROM the property which was conveyed to
the State of New Jersey by the Deed recorded in Deed Book 3980 page
180 and in Deed Book 4031 page 299.
BEING ALSO KNOWN AND DESIGNATED as Lot 9 in Block H-19 on the Tax Map
of the City of Atlantic City.
PARKING FACILITIES PARCEL
BEGINNING at a point in Beach Thorofare at the easterly corner of the
parcel of lands containing an area of 6.199 acres more or less which
was conveyed by the West Jersey and Seashore Railroad Company to the
Press Union Publishing Company by deed dated January 9, 1940, and
recorded January 17, 1940 in Deed Book 1099 page 420, said beginning
point being South 24 degrees 54 minutes 00 seconds West, a distance
of 100.16 feet from a monument set in the southeasterly line of
Absecon Boulevard (also known as U.S. Route 30) (190 feet wide), and
extending from said beginning point; thence,
(1) In Beach Thorofare, South 24 degrees 54 minutes 00 seconds West,
a distance of 259.81 feet to a point; thence
(2) Continuing in and along same, South 44 degrees 54 minutes 00
seconds West, a distance of 445.50 feet to a point; thence,
(3) Continuing in and along same, South 72 degrees 24 minutes 00
seconds West a distance of 224.40 feet to a point; thence
(4) Continuing in and along same, North 68 degrees 21 minutes 00
seconds West, a distance of 478.50 feet to a point; thence
(5) Continuing in and along same, North 76 degrees 06 minutes 00
seconds West, a distance of 363.00 feet to a point; thence
(6) Continuing in and along same, South 82 degrees 39 minutes 00
seconds West, a distance of 429.00 feet to a point; thence,
(7) Continuing in and along same, North 17 degrees 59 minutes 20
seconds East, a distance of 320.65 feet to a point located in
the approximate high water line of Beach Thorofare, said point
also being a corner of lands now or formerly in Daniel Adams, et
al, as recorded in Deed Book CC Page 272; thence,
(8) North 39 degrees 01 minutes 00 seconds West, leaving Beach
Thorofare, in and along the line of lands now or formerly of
Daniel Adams, et al, a distance of 1089.00 feet to a point in
the southeasterly line of lands now or formerly of Lot 307 in
Block 201 as shown on the current official tax map for the City
of Atlantic City, said point also being a corner to lands now or
formerly of Daniel Adams, et al; thence,
(9) North 57 degrees 59 minutes 00 seconds East, in and along the
said lands, a distance of 1113.19 feet to a point in the
aforesaid southwesterly line of Absecon Boulevard; thence,
(10) South 22 degrees 46 minutes 10 seconds East, in and along same,
a distance of 185.42 feet to a point of curve; thence,
(11) Southeastwardly, in and along same and in the arc of a circle
curving to the left having a radius of 1527.69 feet the arc
length of 213.90 feet to a point in the northwesterly line of
Lot 230 in said Block 201; thence,
(12) South 09 degrees 08 minutes 24 seconds East, in the
southwesterly line of Absecon Boulevard, a distance of 87.75' to
a point of curve; thence
(13) Curving to the left along the line of Absecon Boulevard, in the
arc of a circle having a radius of 332.00', the arc length of
201.61' to a point of tangent; thence
(14) South 43 degrees 56 minutes 03 seconds East, continuing in and
along the southwesterly line of Absecon Boulevard, a distance of
128.55' to a point; thence
(15) South 82 degrees 36 minutes 59 seconds East, continuing in and
along the said southwesterly line of Absecon Boulevard, a
distance of 10.00' to a point; thence
(16) Curving to the right along the line of Absecon Boulevard, in the
arc of a circle having a radius of 70.00', the arc length of
47.26' to a point of tangent; thence
(17) North 46 degrees 03 minutes 57 seconds East, along the line of
Absecon Boulevard, a distance of 20.81' to a point which is
radially distant 95.00' from the centerline of Absecon Boulevard
(190' wide) at station 335+98.63'; thence
(18) Curving to the left in the Southwesterly line of Absecon
Boulevard, in the arc of a circle having a radius of 1527.69',
the arc length of 70.33' to the northwesterly line of lot 230 in
said block 201; thence
(19) South 41 degrees 59 minutes 00 seconds West, in and along same,
a distance of 125.00' to the extreme westerly corner of said lot
230; thence
(20) Southeastwardly, in and along the southwesterly line of same,
concentric with Absecon Boulevard, in the arc of a circle
curving to the left, having a radius of 1652.69', the arc length
of 324.55' to the extreme southeasterly corner of said lot 230;
thence
(21) North 30 degrees 43 minutes 55 seconds East, in and along the
southeasterly line of same, a distance of 125.00' to a point in
the aforesaid southwesterly line of Absecon Boulevard; thence
(22) Southeastwardly, in and along same and in the arc of a circle
curving to the left, having a radius of 1527.69', the arc length
of 245.58' to a point of tangency; thence
(23) South 68 degrees 22 minutes 10 seconds East, in and along same,
a distance of 50.00' to a point in the westerly line of the
previously mentioned 6.199 acre parcel, also being the
northwesterly line of lot 150 in said block 201; thence
(24) South 21 degrees 38 minutes 00 seconds West, in and along same,
a distance of 100.00' to a corner in said lot 150; thence
(25) Continuing in and along same, north 68 degrees 22 minutes 10
seconds west, a distance of 94.75' to a corner; thence
(26) Continuing in and along same, south 27 degrees 48 minutes 00
seconds west, a distance of 89.04' to a corner; thence
(27) Continuing in and along same, south 54 degrees 39 minutes 00
seconds west, a distance of 65.88' to a corner; thence
(28) Continuing in and along same, south 71 degrees 53 minutes 00
seconds west, a distance of 201.55' to a corner; thence
(29) Continuing in and along same, south 51 degrees 29 minutes 00
seconds east, a distance of 172.09' to a corner; thence
(30) Continuing in and along same, south 25 degrees 20 minutes 00
seconds east, a distance of 216.73' to a corner; thence
(31) Continuing in and along same and crossing the aforesaid high
water line of Beach Thorofare, south 84 degrees 22 minutes 00
seconds east, a distance of 256.83 to a corner; thence
(32) Continuing in and along same, north 79 degrees 58 minutes 00
seconds east, a distance of 279.10' to a corner; thence
(33) Continuing in and along same, north 41 degrees 22 minutes 00
seconds east, a distance of 266.39 to the point and place of
BEGINNING.
IN compliance with Chapter 157, Laws of 1977 premises herein are
known as Lot 231 in Block 201 as shown on the official tax map of
Atlantic City, New Jersey.
(PEDESTRIAN BRIDGE)
Air rights, rights of way and easements including the right to
construct, maintain and use a Pedestrian Bridge across Huron Avenue
connecting Property One Tract I with Property One Tract III contained
in Ordinance No. 2 of 1988 and affecting the following described
premises:
ALL that certain lot, tract, or parcel of land and premises situate,
lying, and being in the City of Atlantic City, County of Atlantic,
and State of New Jersey, bounded and described as follows:
BEGINNING at a point in the southerly line of Huron Avenue (100'
wide), said point being distant 956.00' eastwardly from the easterly
line of Maryland Avenue (65' wide), if same were extended
northwardly, and extending from said beginning point; thence
(1) North 27 degrees 28 minutes 00 seconds West, crossing Huron
Avenue, a distance of 100.00' to the northerly line of Huron
Avenue; thence
(2) North 62 degrees 32 minutes 00 seconds East, in and along the
northerly line of Huron Avenue, a distance of 30.00'; thence
(3) South 27 degrees 28 minutes 00 seconds East, crossing Huron
Avenue, a distance of 100.00' to the southerly line of Huron
Avenue; thence
(4) South 62 degrees 32 minutes 00 seconds West, in and along the
southerly line of Huron Avenue, a distance of 30.00' to the
point and place of BEGINNING.
BEING an area above the horizontal plane of Huron Avenue between the
elevation of 25.00 M.S.L. datum and 50.00 M.S.L. datum.<PAGE>
SCHEDULE 2
Leased Land
THE FARLEY STATE MARINA SITE
Beginning at the southeasterly corner of Maryland Avenue (68.00'
wide and Huron Avenue 100.00' wide) and extending from said beginning
point; thence
(1) South 27 degrees 28 minutes 00 seconds-East, in and along
the easterly line of Maryland Avenue, a distance of
804.15'; thence
(2) North 62 degrees 32 minutes 00 seconds East parallel with
Huron Avenue, a distance of 200.00'; thence
(3) South 27 degrees 28 minutes 00 seconds East, parallel with
Maryland Avenue, a distance of 1060.85' to a point distant
1745.00' northwardly at right angles from the northerly
line of Mediterranean Avenue (60.00' wide), said point
being in the fifth course as recited in the Riparian Grant
from the State of New Jersey to the City of Atlantic City,
dated March 15, 1920 and recorded in the clerk's office of
Atlantic County in Book 632 of Deeds, Page 117, etc.;
thence
(4) North 62 degrees 32 minutes 00 seconds East, parallel with
Huron Avenue, and in and along said aforementioned Riparian
Grant Line, a distance of 25.00'; thence
(5) North 27 degrees 28 minutes 00 seconds West, parallel with
Maryland Avenue, and in and along said aforementioned
Riparian Grant Line, a distance of 9.26'; thence
(6) North 09 degrees 01 minutes 00 seconds East, in and along
said aforementioned Riparian Grant Line, a distance of
0.04'; thence
(7) North 02 degrees 18 minutes 00 seconds East, in and along
said aforementioned Riparian Grant Line, a distance of
590.00'; thence
(8) North 62 degrees 32 minutes 00 seconds East, parallel with
Huron Avenue, in and along said aforementioned Riparian
Grant Line, a distance of 160.00'; thence
(9) North 41 degrees 39 minutes 00 seconds East, in and along
said aforementioned Riparian Grant Line, a distance of
255.00'; thence
(10) North 47 degrees 34 minutes 00 seconds East, in and along
said aforementioned Riparian Grant Line, a distance of
285.00'; thence
(11) North 56 degrees 02 minutes 00 seconds East, in and along
said aforementioned Riparian Grant Line, a distance of
360.80' to a point distance 1550.00' eastwardly at right
angles from the easterly line of Maryland Avenue; thence
(12) North 27 degrees 28 minutes 00 seconds West, parallel with
Maryland Avenue, a distance of 568.21'; thence
(13) North 62 degrees 32 minutes 00 seconds East, parallel with
Huron Avenue, a distance of 200.00' to the westerly line of
Rhode Island Avenue (50.00' wide); thence
(14) North 27 degrees 28 minutes 00 seconds West in and along
the westerly line of Rhode Island Avenue, a distance of
570.00' to the southerly line of Huron Avenue; thence
(15) South 62 degrees 32 minutes 00 seconds West, in and along
the southerly line of Huron Avenue, a distance of 1750.00'
to the point and place of BEGINNING.
EXCEPTING THEREOUT AND THEREFROM the following parcel of land
described as:
MARINE POLICE BUILDING PARCEL
BEGINNING at a point in the westerly line of Rhode Island Avenue
(50.00 feet wide), said point being distant 570.00 feet south of the
southerly line of Huron Avenue (100.00 feet wide) and extending;
thence
1. South 62 degrees 32 minutes 00 seconds West, parallel with Huron
Avenue, and in and along the division line between Lot 10 and
Lot 11 in Block B-4 as shown on the current taxing plan of the
City of Atlantic City, a distance of 97.97 feet; thence
2. North 27 degrees 28 minutes 00 seconds West, parallel with Rhode
Island Avenue, a distance of 179.00 feet; thence
3. North 62 degrees 32 minutes 00 seconds East, parallel with Huron
Avenue, a distance of 97.97 feet to the Westerly line of Rhode
Island Avenue; thence
4. South 27 degrees 28 minutes 00 seconds East, in and along the
westerly line of Rhode Island Avenue, a distance of 179.00 feet
to the point and place of BEGINNING.
ALSO EXCEPTING THEREON AND THEREFROM such land and improvements being
referred to as the 7 berths on K dock, for use of the Marina Law
Enforcement Bureau as further described in the Lease and further
shown on survey by Arthur W. Ponzio Co. & Assoc., Inc., dated
December 28, 1993 and bearing Job No 18488.
In compliance with Chapter 157, Laws of 1977, premises herein
are known as part of Lot 11 in Block B-4 as shown on the official tax
map of Atlantic City, New Jersey.
<PAGE>
SCHEDULE 3
Existing Encumbrances
<PAGE>
SCHEDULE 4
FORM OF NON-DISTURBANCE
AND ATTORNMENT AGREEMENT
THIS AGREEMENT, made as of the ______ day of ________
by and between
having an office at
(hereinafter called "Mortgagee") and
a having an
office at (hereinafter
called "Tenant").
W I T N E S S E T H:
WHEREAS, Mortgagee is the mortgagee under that certain
Indenture of Mortgage dated _____________ (said mortgage, as it
may be amended, increased, renewed, modified, consolidated, replaced,
combined, substituted, severed, split, spread or extended, being
hereinafter referred to as the "Mortgage") between Trump's Castle
Funding, Inc. ("Funding") and Trump's Castle Associates which
encumbers Trump's Castle Casino Hotel and certain other real property
located in Atlantic City, New Jersey, more particularly described in
Exhibit A hereto. Funding assigned all of its right, title and
interest in the Mortgage to _____________________ , as Trustee,
pursuant to an Assignment Agreement dated ______ , 1993; and
WHEREAS, Tenant has entered into a certain agreement
of lease dated [as amended by agreements dated
and ] and as it may be hereafter amended from time to
time (the "Lease") covering (the "Demised Premises").
NOW, THEREFORE, in consideration of the mutual agreements herein
contained and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree
as follows:
1. Tenant covenants and agrees that the Lease now is and shall
at all times continue to be subject and subordinate in each and every
respect to the Mortgage. Tenant, upon request, shall execute and
deliver any certificate or other instrument which the Mortgagee may
reasonably request to confirm said subordination by Tenant.
2. Tenant certifies that the Lease is presently in full force
and effect and unmodified and no base rent payable thereunder has
been paid more than one (1) Year in advance of its due date, and that
no default exists under the Lease which has continued beyond the
expiration of any applicable grace period.
3. As long as Tenant is in compliance with the terms of this
Agreement and no default exists under the Lease which has continued
beyond the expiration of any applicable grace period, Mortgagee shall
not name Tenant as a party defendant to any action for foreclosure or
other enforcement thereof (unless required by law), nor shall the
Lease be terminated by mortgagee in connection with, or by reason of,
foreclosure or other proceedings for the enforcement of the Mortgage,
or by reason of a transfer of the landlord's interest under the Lease
pursuant to the taking of a deed in lieu of foreclosure (or similar
device), nor shall Tenant's use or possession of the Demised Premises
be interfered with by Mortgagee, unless the holder of the landlord's
interest under the Lease (the "Landlord") would have had such right
if the Mortgage had not been made, except that the person acquiring,
or succeeding to the interests of the Landlord as a result of any
such action or proceeding, and such person's successors and assigns
(any of the foregoing being hereinafter referred to as the
Successor"), shall not be:
(a) subject to any credits, offsets, defenses or claims
which Tenant might have against any prior landlord; nor
(b) bound by any base rent which Tenant might have paid for
more than the current month to any prior landlord, unless such
prepayment shall have been made with Mortgagee's prior written
consent; nor
(c) liable for any act or omission of any prior landlord;
nor
(d) bound by any covenant to undertake or complete any
improvement to the Demised Premises or the building forming a
part of the Property; nor
(e) be required to account for any security deposit other
than any security deposit actually delivered to the Successor;
nor
(f) liable for any payment to Tenant of any sums, or the
granting to Tenant of any credit, in the nature of a
contribution towards the cost of preparing, furnishing or moving
into-the Demised Premises or any portion thereof.
4. If the interest of the Landlord under the Lease shall be
transferred by reason of foreclosure or other proceedings for
enforcement of the Mortgage or pursuant to a taking of a deed in lieu
of foreclosure (or similar device), Tenant shall be bound to the
Successor, and, except as provided in this Agreement, the Successor
shall be bound to Tenant, under all of the terms, covenants and
conditions of the Lease for the balance of the term thereof
remaining, with the same force and effect as if the Successor were
the Landlord, and Tenant does hereby (i) agree to attorn to the
Successor, including Mortgagee if it be the Successor, as its
landlord, (ii) affirm its obligations under the Lease, and (iii)
agree to make payments of all sums due under the Lease to the
Successor, said attornment, affirmation and agreement to be effective
and self-operative without the execution of any further instruments,
upon the Successor succeeding to the interest to the Landlord under
the Lease. Tenant waives the provisions of any statute or rule of
law now or hereafter in effect that may give or purport to give it
any right or election to terminate or otherwise adversely affect the
Lease or the obligations of Tenant thereunder by reason of any
foreclosure or similar proceeding.
5. This Agreement may not be modified except by an agreement
in writing signed by the parties or their respective successors in
interest. This Agreement shall inure to the benefit of and be
binding upon the parties hereto, their respective heirs,
representatives, successors and assigns.
6. Nothing contained in this Agreement shall in any way impair
or affect the lien created by the Mortgage except as specifically set
forth herein.
7. The Tenant agrees that this Agreement satisfies any condition
or requirement in the Lease relating to the granting of a
non-disturbance agreement by Mortgagee. Tenant further agrees that
in the event there is any inconsistency between the terms and
provisions hereof and the terms and provisions of the Lease dealing
with non-disturbance by Mortgagee, the terms and provisions hereof
shall be controlling.
8. All notices, demands or requests made pursuant
to, under, or by virtue of this Agreement must be in writing
and mailed to the party whom the notice, demand or request is
being made by certified or registered mail, return receipt requested,
at its address set forth above. Any party may change the place that
notices and demands are to be sent by written notice delivered in
accordance with this Agreement.
9. This Agreement shall be governed by the laws of the State
of New Jersey. If any term of this Agreement or the application
thereof to any person or circumstances shall to any extent be invalid
or unenforceable, the remainder of this Agreement or the application
of such term to any person or circumstances other than those as to
which it is invalid or unenforceable shall not be affected thereby,
and each term of this Agreement shall be valid and enforceable to the
fullest extent permitted by law.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have hereunto caused this
Agreement to be duly executed as of the day and year first above
written.
MORTGAGEE
By:________________________________
TENANT
By:_________________________________
[Acknowledgments]
Exhibit D to
Senior Note Indenture
INDENTURE OF MORTGAGE AND SECURITY AGREEMENT
(Senior Guarantee Mortgage)
TRUMP'S CASTLE ASSOCIATES,
Mortgagor/Debtor
and
FIRST BANK NATIONAL ASSOCIATION,
as Trustee under the Senior Note Indenture, Mortgagee/Secured
Party
Dated as of December 28, 1993
Record and Return to:
Robert L. Nutt, Esq.
Ropes & Gray
One International Place
Boston, Massachusetts 02110-2624
<PAGE>
<PAGE>
TABLE OF CONTENTS
ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF
GENERAL APPLICATION. . . . . . . . . . . . . . . . . . . . . . 8
Section 1.1. Definitions. . . . . . . . . . . . . . . . 9
Section 1.2. Notices. . . . . . . . . . . . . . . . . . 18
Section 1.3. Form and Contents of
Documents Delivered to Mortgagee. . . . . . . . 19
Section 1.4. Compliance Certificates and Opinions.. . . 20
Section 1.5. Effect of Headings and Table of
Contents.. . . . . . . . . . . . . . . . . . . . . . 21
Section 1.6. Successors and Assigns; Amendments.. . . . 21
Section 1.7. Separability Clause. . . . . . . . . . . . 21
Section 1.8. Benefits of Mortgage.. . . . . . . . . . . 21
Section 1.9. Governing Law. . . . . . . . . . . . . . . 22
Section 1.10. Limitation on Liability. . . . . . . . . . 22
Section 1.11. Provisions Required by Senior Note
Indenture. . . . . . . . . . . . . . . . . . . . . . 22
Section 1.12. Rights of Trustee as Mortgagee.. . . . . . 23
Section 1.13. Mortgage Subject to Casino Control Act.. . 24
Section 1.14. Discharge of Lien. . . . . . . . . . . . . 24
Section 1.15. General Application. . . . . . . . . . . . 25
Section 1.16. Senior Guarantee Mortgage Deemed to be
Security Agreement.. . . . . . . . . . . . . . . . . 25
Section 1.17. No Duplication of Notices or Payments. . . 25
ARTICLE TWO RELEASE; SUBORDINATION . . . . . . . . . . . . . . 26
Section 2.1. Possession by Mortgagor. . . . . . . . . . 26
Section 2.2. Obsolete Property. . . . . . . . . . . . . 26
Section 2.3. F,F&E Financing Agreements.. . . . . . . . 27
ARTICLE THREE REMEDIES . . . . . . . . . . . . . . . . . . . . 28
Section 3.1. Events of Default. . . . . . . . . . . . . 28
Section 3.2. [Intentionally Omitted] . . . . . . . . . 30
Section 3.3. Application of Moneys Received by
Mortgagee. . . . . . . . . . . . . . . . . . . . . . 30
Section 3.4. Restoration of Rights and Remedies.. . . . 30
Section 3.5. Rights and Remedies Cumulative.. . . . . . 30
Section 3.6. Delay or Omission Not Waiver.. . . . . . . 30
Section 3.7. Undertaking for Costs. . . . . . . . . . . 30
Section 3.8. Waiver of Appraisement and Other Laws. . . 31
Section 3.9. Entry. . . . . . . . . . . . . . . . . . . 31
Section 3.10. Power of Sale; Suits for Enforcement.. . . 32
Section 3.11. Incidents of Sale. . . . . . . . . . . . . 32
Section 3.12. Receiver.. . . . . . . . . . . . . . . . . 33
Section 3.13. Suits to Protect the Trust Estate. . . . . 34
Section 3.14. Management of the Premises.. . . . . . . . 34
(i)
<PAGE>
ARTICLE FOUR CONSOLIDATION, MERGER, CONVEYANCE,
TRANSFER OR LEASE. . . . . . . . . . . . . . . . . . . . . . . 35
Section 4.1. Consolidation, Merger, Conveyance
or Transfer only on Certain Terms.. . . . . . . 35
Section 4.2. Successor Entity Substituted.. . . . . . . 35
ARTICLE FIVE COVENANTS AND REPRESENTATIONS OF MORTGAGOR. . . . 35
Section 5.1. Performance of Senior Note Guarantee
Obligations. . . . . . . . . . . . . . . . . . . . . 35
Section 5.2. F,F&E Financing Agreements.. . . . . . . . 35
Section 5.3. Limitations on Liens and Transfers.. . . . 35
Section 5.4. Environmental. . . . . . . . . . . . . . . 37
Section 5.5. Warranty of Leasehold Estate and Title . . 40
Section 5.6. After-Acquired Property;
Further Assurances; Recording.. . . . . . . . . 42
Section 5.7. Payment of Taxes and Certain Claims;
Maintenance of Properties; Compliance with
Legal Requirements and Insurance Requirements.. 43
Section 5.8. Permitted Contests . . . . . . . . . . . . 45
Section 5.9. Mechanics' and Other Liens.. . . . . . . . 46
Section 5.10. To Insure. . . . . . . . . . . . . . . . . 46
Section 5.11. Limitations on Building Demolition,
Alterations, Improvements and New Construction. 54
Section 5.12. Leases.. . . . . . . . . . . . . . . . . . 56
Section 5.13. Compliance Certificates. . . . . . . . . . 58
Section 5.14. To Keep Books; Inspection by Mortgagee . . 58
Section 5.15. Advances by Mortgagee. . . . . . . . . . . 59
Section 5.16. Waiver of Stay, Extension or Usury
Laws.. . . . . . . . . . . . . . . . . . . . . . . . 59
Section 5.17. Eminent Domain.. . . . . . . . . . . . . . 59
Section 5.18. Facility Leases. . . . . . . . . . . . . . 61
Section 5.19. Superior Mortgage. . . . . . . . . . . . . 66
Section 5.20. Indemnification. . . . . . . . . . . . . . 68
SCHEDULE 1 OWNED LAND. . . . . . . . . . . . . . . . . . . . 1-1
SCHEDULE 2 LEASED LAND . . . . . . . . . . . . . . . . . . . 2-1
SCHEDULE 3 EXISTING ENCUMBRANCES . . . . . . . . . . . . . . 3-1
SCHEDULE 4 FORM OF NON-DISTURBANCE AND ATTORNMENT AGREEMENT. 4-1
(ii)
<PAGE>
<PAGE>
INDENTURE OF MORTGAGE AND SECURITY AGREEMENT
INDENTURE OF MORTGAGE AND SECURITY AGREEMENT ("Mortgage" or
"Senior Guarantee Mortgage"), dated as of December 28 , 1993,
between TRUMP'S CASTLE ASSOCIATES, a New Jersey general
partnership having an office at Brigantine Boulevard and Huron
Avenue, Atlantic City, New Jersey 08401 ("Mortgagor"), and FIRST
BANK NATIONAL ASSOCIATION, a national banking association, not
individually but in its capacity as Trustee under the Trust
Indenture (as hereinafter defined), having an office at 180 East
Fifth Street, St. Paul, Minnesota 55101 ("Mortgagee").
Witnesseth:
In consideration of $10.00 in hand paid by Mortgagee to
Mortgagor and for other good and valuable consideration, the
receipt and sufficiency whereof is hereby acknowledged, and in
order to secure (i) the punctual payment and performance when due
of all of Mortgagor's obligations under the Senior Note
Guarantee; (ii) the punctual payment and performance when due of
all the Company's and Mortgagor's obligations under the Senior
Notes and the Senior Note Indenture; (iii) payment by Mortgagor
to Mortgagee of all sums expended or advanced by Mortgagee
pursuant to any term or provision of this Senior Guarantee
Mortgage; (iv) performance of each covenant, term, condition and
agreement of Mortgagor herein contained; (v) all costs and
expenses, including, without limitation, reasonable counsel fees
and expenses as provided in Section 3.7 of this Senior Guarantee
Mortgage, which may arise in respect of this Senior Guarantee
Mortgage or of the obligations secured hereby; and (vi)
performance and observance of all of the provisions herein
contained, Mortgagor has executed and delivered this Senior
Guarantee Mortgage and has bargained, sold, aliened, mortgaged,
pledged, released, conveyed and confirmed unto Mortgagee and its
successors hereunder and assigns forever, and does hereby grant
to Mortgagee and its successors a security interest in and to,
all of Mortgagor's right, title and interest in, to and under all
of the following described property and the proceeds thereof:
GRANTING CLAUSES
Granting Clause First
All of the property, rights, title, interest, privileges and
franchises particularly described in annexed Schedule 1 (the
"Owned Land"), which Schedule is hereby made a part of, and
deemed to be described in, this Granting Clause as fully as if
set forth in this Granting Clause at length.
(1)
<PAGE>
Granting Clause Second
[Intentionally omitted]
Granting Clause Third
All of the property, rights, title, interest, privileges and
franchises of Mortgagor as lessee under all Facility Leases
(including, to the extent permissible to the Landlord under the
Marina Lease, the Marina Lease), together with (i) all credits,
deposits, privileges and rights of Mortgagor as lessee under the
Facility Leases, now or at any time existing, (ii) the leaseholds
and the leasehold estates created by the Facility Leases and
(iii) all of the estates, rights, titles, claims or demands
whatsoever of Mortgagor, either in law or in equity, in
possession or in expectancy, of, in and to the Facility Leases
and the Leased Facilities (including, but not limited to, the
Leased Land particularly described in annexed Schedule 2),
together with (x) any and all other, further or additional title,
estates, interests or rights which may at any time be acquired by
Mortgagor in or to the Leased Facilities or any part thereof, and
Mortgagor expressly agrees that if Mortgagor shall, at any time
prior to payment in full of all indebtedness secured hereby,
acquire fee simple title or any other greater estate to the
Leased Facilities, the lien of this Senior Guarantee Mortgage
shall attach, extend to, cover and be a lien upon such fee simple
title or other greater estate and thereupon the lien of this
Senior Guarantee Mortgage, subject to Permitted Encumbrances,
shall be prior to the lien of any mortgage or deed of trust
placed on such acquired title, estate, interest or right
subsequent to the date of this Senior Guarantee Mortgage and (y)
any right to possession or statutory term of years derived from,
or incident to, the Facility Leases pursuant to Section 365(h) of
the Code or any Comparable Provision.
Granting Clause Fourth
All of the rents, issues, profits, revenues, accounts,
accounts receivable and other income and proceeds (including,
without limitation, all rents, fees, charges, accounts, issues,
profits, revenues and payments for or from (a) the use or
occupancy of the rooms and other public facilities in the Hotel<PAGE>
(2)
<PAGE>
and (b) the operation of the Casino) of the property subjected or
required to be subjected to the lien of this Senior Guarantee
Mortgage, including, without limitation, the property described
in Granting Clauses First, Third and Seventh (said property
described in Granting Clauses First, Third and Seventh and
similar other property subjected or required to be subjected to
the lien of this Senior Guarantee Mortgage, together with all
such rents, issues, profits, revenues, accounts, accounts
receivable and other income and proceeds therefrom is hereinafter
collectively referred to as the "Premises") and all of the
estate, right, title and interest of every nature whatsoever of
Mortgagor in and to the same and every part thereof.
Granting Clause Fifth
All of the rights of Mortgagor as lessor under the Leases in
effect on the date of execution of this Senior Guarantee Mortgage
or hereafter entered into by Mortgagor, including modifications,
extensions and renewals of all of the same, and the immediate and
continuing right as security after the occurrence, and during the
continuance, of an Event of Default, to (a) make claim for,
collect, receive and receipt for (and to apply the same as
provided herein) any and all rents, fees, charges, income,
revenues, issues, profits, security and other sums of money
payable or receivable thereunder or pursuant thereto, and all
proceeds thereof, whether payable as rent, insurance proceeds,
condemnation awards, security or otherwise and whether payable
prior to or subsequent to the Stated Maturity of the Senior
Partnership Note, (b) receive and give notices and consents
thereunder, (c) bring actions and proceedings thereunder or for
the enforcement thereof, (d) make waivers and agreements
thereunder or with respect thereto, (e) take such action upon the
happening of a default under any Lease, including the
commencement, conduct and consummation of any proceedings at law
or in equity as shall be permitted by any provision of any Lease,
and (f) do any and all things which Mortgagor or any lessor is or
may become entitled to do under the Leases; provided that, except
as may be set forth to the contrary herein, the assignment made
by this Granting Clause Fourth shall not impair or diminish any
right, privilege or obligation of Mortgagor under the Leases nor
shall any such obligation be imposed upon Mortgagee.
Granting Clause Sixth
Without limiting the generality of the provisions of
Granting Clause Fourth, all of Mortgagor's rights, title,
interest, privileges and franchises in and to the following, now
owned or hereafter acquired by Mortgagor, to the extent of
Mortgagor's interest therein and thereto and to the extent
assignable (collectively, "Operating Assets"):
(3)
<PAGE>
(a) bookings for the use of guest rooms, banquet
facilities, meeting rooms at the Casino Hotel or at any other
improvements now or hereafter located on any of the Land;
(b) all contracts respecting utility services for, and the
maintenance, operations, or equipping of, the Premises, including
guaranties and warranties relating thereto;
(c) the Permits;
(d) all contract rights, leases (whether with respect to
real property, personal property or both real and personal
property), concessions, trademarks, trade names, service marks,
logos, copyrights, warranties and other items of intangible
personal property, and any and all good will associated with the
same, relating to the ownership or operation of the Casino Hotel
or of any other improvements now or hereafter located on any of
the Land, including, without limitation, (1) employment contracts
with officers and other employees of Mortgagee, (2) telephone and
other communication numbers, (3) all software licensing
agreements as are required to operate computer software systems
at the Casino Hotel or at any other improvements now or hereafter
located on any of the Land and books and records relating to the
software programs and (4) lessee's interest under leases of
Tangible Personal Property;
(e) all contracts, purchase orders, requisitions and
agreements entered into by or on behalf of Mortgagor or which
have been assigned to Mortgagor, for the design, construction,
and furnishing of the Casino Hotel or of any other improvements
now or hereafter located on any of the Land, including, without
limitation, architect's agreements, engineering agreements,
construction contracts, consulting agreements and agreements or
purchase orders for all items of Tangible Personal Property and
payment and performance bonds in favor of Mortgagor in connection
with the Trust Estate (and all warranties and guarantees
thereunder and warranties and guarantees of any subcontractor and
bond issued in connection with the work to be performed by any
subcontractor);
(f) the following personal property (the "Tangible Personal
Property") now or hereafter acquired by Mortgagor (directly or by
way of lease) which is located on, or to be located on, or which
are in use or held in reserve storage for future use in
connection with the gaming or other operations of, the Casino
Hotel or of any other improvements now or hereafter located on
any of the Land, which is on hand or on order whether stored
on-site or off-site:
(i) all furniture, furnishings, equipment, machinery,
lighting, apparatus (both interior and exterior),
(4)
<PAGE>
appliances, fixtures and fittings and other articles of tangible
personal property;
(ii) all slot machines, electronic gaming devices,
crap tables, blackjack tables, poker tables, roulette
tables, baccarat tables, big six wheels and other gaming
tables, and all furnishings and equipment to be used in
connection with the operation thereof;
(iii) all cards, dice, gaming chips and plaques,
tokens, chip racks, dealing shoes, dice cups, dice sticks,
layouts, paddles, roulette balls and other consumable
supplies and items;
(iv) all china, glassware, linens, kitchen utensils,
silverware and uniforms;
(v) all consumable and operating supplies of every
kind and nature, including, without limitation, accounting
supplies, guest supplies, forms, printing, stationery, food
and beverage stock, bar supplies, laundry supplies and
brochures to existing purchase orders;
(vi) all upholstery material, carpets and rugs, beds,
bureaus, chiffonniers, chairs, chests, desks, bookcases,
tables, curtains, hangings, pictures, divans, couches,
ornaments, bars, bar fixtures, safes, stoves, ranges,
refrigerators, radios, televisions, clocks; electrical
equipment, lamps, mirrors, heating and lighting fixtures and
equipment, ice machines, air conditioning machines, fire
prevention and extinguishing apparatus, laundry machines,
and all similar and related articles used in bedrooms,
sitting rooms, bathrooms, boudoirs, halls, closets,
kitchens, dining rooms, offices, lobbies, basements and
cellars in the Casino Hotel and in any other improvements
now or hereafter located on any of the Land;
(vii) all sets and scenery, costumes, props and other
items of tangible personal property on hand or on order for
use in the production of shows in any showroom, convention
space, exhibition hall, or sports and entertainment arena of
the Casino Hotel or in any other improvements now or
hereafter located on any of the Land; and
(viii) all cars, limousines, vans, buses, trucks and
other vehicles owned or leased by Mortgagor for use in
connection with the operation of the Premises, together with
all equipment, parts and supplies used to service, repair,
maintain and equip the foregoing;
(g) all drawings, designs, plans and specifications
prepared by architects, engineers, interior designers, landscape
(5)
<PAGE>
designers and any other professionals or consultants for the
design, development, construction and/or improvement of the
Casino Hotel, or for any other development of the Premises, as
amended from time to time;
(h) any administrative and judicial proceedings initiated
by Mortgagor, or in which Mortgagor has intervened, concerning
the Premises, and agreements, if any, which are the subject
matter of such proceedings;
(i) any customer lists utilized by Mortgagor including
lists of transient guests and restaurant and bar patrons and
"high roller" lists; and
(j) all of the good will in connection with the assets
listed in this Granting Clause Sixth and in connection with the
operation of the Premises.
Except as may be set forth to the contrary herein, the
assignment made by this Granting Clause Sixth shall not impair or
diminish any right, privilege or obligation of Mortgagor with
respect to the Operating Assets, nor shall any such obligation be
imposed on Mortgagee.
Granting Clause Seventh
(a) All of Mortgagor's rights, title, interest, privileges
and franchises, if any, in and to all buildings, structures
(surface and subsurface), and other improvements of every kind
and description, including, without limitation, all pedestrian
bridges, entrance-ways, parking lots, plazas, curb-cuts,
walkways, driveways and landscaping and such fixtures as
constitute real property, now or hereafter erected or placed on
the Land or on any other land or any interest therein hereafter
acquired by Mortgagor and all of Mortgagor's rights, title,
interest, privileges and franchises in and to all fixtures and
articles of personal property now or hereafter attached to or
contained in and used in connection with such buildings and
improvements, including, without limitation, all apparatus,
furniture, furnishings, lighting equipment, electronic
billboards, machinery, motors, elevators, fittings, radiators,
cooking ranges, ice boxes, ice machines, printing presses,
mirrors, bars, mechanical refrigerators, furnaces, coal and oil
burning apparatus, wall cabinets, machinery, generators,
partitions, steam and hot water boilers, lighting and power
plants, pipes, plumbing, radiators, sinks, bath tubs, water
closets, gas and electrical fixtures, awnings, shades, screens,
blinds, dishwashers, freezers, vacuum cleaning systems, office
equipment and other furnishings, and all plumbing, heating,
lighting, cooking, laundry, ventilating, incinerating,
air-conditioning and sprinkler equipment or other fire prevention
(6)
<PAGE>
or extinguishing apparatus and material, and fixtures and
appurtenances thereto; and all renewals or replacements thereof
or articles in substitution therefor, whether or not the same are
or shall be attached to the Land, any other land or any interest
therein hereafter acquired by Mortgagor or to any such buildings
and improvements thereon, in any manner.
(b) All of Mortgagor's rights, title, interest, privileges
and franchises in and to all other property, real, personal or
mixed (other than Excepted Property), of every kind and
description and wheresoever situate, now owned or which may be
hereafter acquired by Mortgagor, it being the intention hereof
that all property, interests, rights, privileges and franchises
now owned by Mortgagor or acquired by Mortgagor after the date
hereof (other than Excepted Property) shall be as fully embraced
within and subjected to the lien hereof as if such property were
specifically described herein.
* * *
TOGETHER with all of Mortgagor's right, title and interest
in and to any and all mineral and water rights and any title or
reversion, in and to the beds of the ways, streets, avenues and
alleys adjoining the Premises to the center line thereof and in
and to all strips, gaps and gores adjoining the Premises on all
sides thereof; and
TOGETHER with any and all of Mortgagor's right, title and
interest in and to the tenements, hereditaments, easements,
appurtenances, passages, waters, water courses, riparian rights,
other rights, liberties and privileges thereof or in any way now
or hereafter appertaining to the Premises, including, without
limitation, any other claim at law or in equity as well as any
after-acquired title, franchise or license and the reversion and
reversions and remainder and remainders thereof; and
TOGETHER with any and all awards and other compensation
heretofore or hereafter to be made to the present and all
subsequent owners of the Trust Estate for any taking by eminent
domain, either permanent or temporary, of all or any part of the
Trust Estate or any easement or appurtenances thereof, including
severance and consequential damage and change in grade of
streets, all in accordance with and subject to the provisions of
the Superior Instrument Requirements and Section 5.17; and
TOGETHER with any and all proceeds of any unearned premiums
on any insurance policies described in Sections 5.10, and the
right to receive and apply the proceeds of any insurance,
judgments, or settlements made in lieu thereof, for damage to the
Trust Estate or otherwise, all in accordance with and subject to
the provisions of Section 5.10 and the Superior Instrument
Requirements; and
(7)
<PAGE>
TOGETHER with all proceeds of every kind and nature, and all
products of every kind and nature, of any of the foregoing
property, rights, title, interests, privileges, franchises and
other assets described in Granting Clauses First through Seventh
or in any of the other clauses thereafter.
The foregoing shall include, whether or not specifically
identified in one or more instances, all such property, rights,
title, interests, privileges, franchises and other assets now
owned and/or hereafter existing.
EXCLUDING, with respect to all of the hereinabove granted
property, rights, title, interest, privileges and franchises
described in Granting Clauses First through Seventh or in the six
immediately preceding paragraphs, all Excepted Property now or
hereafter existing.
TO HAVE AND TO HOLD all of said Premises, Leases, Facility
Leases, Operating Assets, properties, options, credits, deposits,
rights, privileges and franchises of every kind and description,
real, personal or mixed, hereby and hereafter granted, bargained,
sold, aliened, assigned, transferred, hypothecated, pledged,
released, conveyed, mortgaged, or confirmed as aforesaid, or
intended, agreed or covenanted so to be, together with all the
appurtenances thereto appertaining (said Premises, Leases,
Facility Leases, Operating Assets, properties, options, credits,
deposits, rights, privileges and franchises, other than Excepted
Property now or hereafter existing, being herein collectively
called the "Trust Estate") unto Mortgagee and its successors and
assigns forever.
SUBJECT, HOWEVER, on the date hereof, to Existing
Encumbrances (including the Superior Mortgage) and, after the
date hereof, to Permitted Encumbrances (other than Restricted
Encumbrances).
PROVIDED, HOWEVER, that the lien of this Senior Guarantee
Mortgage upon the Trust Estate shall rank pari passu with the
lien of the Senior Note Mortgage.
BUT IN TRUST, NEVERTHELESS, for the ratable benefit and
security of the Holders.
UPON CONDITION that, until the happening of an Event of
Default, Mortgagor shall be permitted to possess and use the
Trust Estate, and to receive and use the rents, issues, profits,
revenues and other income of the Trust Estate.
AND IT IS HEREBY COVENANTED AND DECLARED that the Trust
Estate is to be held and applied by Mortgagee, subject to the
further covenants, conditions and trusts hereinafter set forth,
(8)
<PAGE>
and Mortgagor does hereby covenant and agree to and with
Mortgagee, for the ratable benefit of the Holders, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF
GENERAL APPLICATION
Section 1.1. Definitions.
For all purposes of this Senior Guarantee Mortgage, except
as otherwise expressly provided or unless the context otherwise
requires:
(a) the terms defined in this Article One have the meanings
assigned to them in this Article One and include the plural as
well as the singular;
(b) all accounting terms not otherwise defined herein have
the meanings assigned to them, and all computations herein
provided for shall be made, in accordance with generally accepted
accounting principles in effect on the date hereof consistently
applied; and
(c) the words "herein," "hereof" and "hereunder" and other
words of similar import refer to this Senior Guarantee Mortgage
as a whole and not to any particular Article, Section or other
subdivision.
"Affiliate" has the meaning set forth in Section 1.1 of the
Senior Note Indenture.
"Alterations" has the meaning set forth in Section 5.11.
"Appraised Value" means the fair market value of the Casino
Hotel, and of all other property now or hereafter owned or leased
by Mortgagor and subject to the lien of this Senior Guarantee
Mortgage, as determined by an Independent Appraiser on the basis
of an appraisal in conformity with the criteria set forth at 12
C.F.R. ss 564.4 or such similar published policy or regulation as
from time to time governs real estate related transactions by
institutions regulated by the Office of Thrift Supervision;
provided, that the value of the Casino Hotel and such other
property shall not include the value of (i) any furniture,
fixtures and equipment therein to the extent of the Outstanding
Amount of any Indebtedness secured by any F,F&E Financing
Agreements with respect thereto and (ii) any Excepted Property.
"Appraiser" means a "state certified appraiser" as defined
in 12 C.F.R. ss 564.2(i) who is (i) of recognized standing among
appraisers of properties similar to the Casino Hotel and (ii)
(9)
<PAGE>
experienced in the appraisals of properties of a similar size and
scope to that of the Casino Hotel, selected by Mortgagor.
"Architect" means an Independent Person selected by
Mortgagor and licensed as an architect in the State of New
Jersey.
"Casino" means that portion of the Casino Hotel used for
gaming and related activities.
"Casino Hotel" means the casino and hotel complex currently
known as the "Trump's Casino Castle Resort" in Atlantic City, New
Jersey, and ancillary structures and facilities located on the
Premises (other than the property covered by the Marina Lease)
and all furniture, fixtures and equipment at any time contained
therein in each case owned by or leased to Mortgagor and covered
by the lien of the Senior Note Mortgage.
"Casualty" means any act or occurrence of any kind or nature
which results in damage, loss or destruction to any buildings or
improvements on the Premises and/or Tangible Personal Property.
"Certificate of Appraised Value" means the certificate of an
Independent Appraiser stating the Appraised Value.
"Code" means the Federal Bankruptcy Code, Title 11 of the
United States Code, as amended.
"Company" means Trump's Castle Funding, Inc., a corporation
incorporated under the laws of the State of New Jersey, or any
other obligor on the Senior Notes (other than Mortgagor).
"Comparable Provision" has the meaning set forth in
Section 5.18.
"Default" means any event which is, or after notice or lapse
of time or both would be, an Event of Default. Without limiting
the generality of the previous provisions of this definition, the
term "Default" shall include the occurrence of an event as to
which a notice of default has been given to Mortgagor under any
Facility Lease by a Lessor or under the Superior Mortgage by the
holder thereof, which has not yet been cured.
"Depositary" means an Independent entity to which insurance
proceeds or condemnation awards are paid to be held in trust for
Restoration pursuant to the provisions of a Superior Mortgage.
"Event of Default" has the meaning set forth in Section 3.1.
"Excepted Property" means:
(10)
<PAGE>
(1) the personal property owned by lessees under Leases and
the personal property of any Hotel guests;
(2) trade names, intellectual property rights and other
rights and interests in and to the use of the terms "Trump's
Castle," "Trump," "Trump's Castle Casino Resort", "Donald J.
Trump," "Donald Trump" or related variations thereof; and
(3) any property deemed to be Excepted Property pursuant to
the provisions of Section 2.3;
(4) counterchecks, cash and any other property to the
extent that the granting of a security interest therein is
prohibited by the New Jersey Casino Control Act and the
regulations promulgated thereunder; and
(5) any property acquired pursuant to secured purchase -
money indebtedness permitted under clause "i" of the definition
of "Permitted Indebtedness" in the Senior Note Indenture.
"Existing Encumbrances" means the matters set forth in
Schedule 3 hereto, including, but not limited to, the instruments
securing, evidencing or governing the Midlantic Term Loan.
"Facility Leases" means, collectively:
(1) the Marina Lease;
(2) Any leases other than Capital Lease Obligations and the
Marina Leqase where the Mortgagor is tenant or sub-tenant;
provided, however, that the aggregate fixed rental payments paid
or accrued for any period of four consecutive fiscal quarters
commencing after the date hereof under all such leases (including
payments required to be made by the lessee in respect of taxes
and insurance, whether or not denomianted as rent), shall not
exceed for such period (a) $2,000,000 or (b) $7,500,000 following
the time at which the Partnership shall have achieved EBITDA for
any period of four consecutive quarters in an amount not less
than $45.0 million; provided, further, that the Mortgagor may
designate certain such leases which are not material to the
operations of the Casino Hotel and which have aggregate fixed
rental payments (including payments required to be made by the
lessee in respect of taxes and insurance, whether or not
denominated as rent) not exceeding an aggregate of $300,000 per
year to be excluded from the leases covered by this clause (2);
and
(3) any and all modifications, extensions and renewals of
the leases described in clauses (1) and (2) above, to the extent
the same are permitted under Section 5.12.
(11)
<PAGE>
"F,F&E Financing Agreement" has the meaning set forth in
Section 1.1 of the Senior Note Indenture.
"Full Insurable Value" means the actual replacement cost
(excluding the costs of foundation, footing, excavation, paving,
landscaping and other similar, noninsurable improvements) of the
insurable properties in question.
"Holder" has the meaning set forth in Section 1.1 of the
Senior Note Indenture.
"Hotel" means that portion of the Casino Hotel not included
within the Casino.
"Impositions" has the meaning set forth in Section 5.7.
"Indebtedness" has the meaning set forth in Section 1.1 of
the Senior Note Indenture.
"Independent" when used with respect to any specified Person
means such a Person who (i) is in fact independent, (ii) does not
have any direct financial interest or any material indirect
financial interest in Mortgagor or in any other obligor upon the
Senior Partnership Note or in any Affiliate of Mortgagor or of
such other obligor and (iii) is not connected with Mortgagor or
such other obligor or any Affiliate of Mortgagor or such other
obligor as an officer, employee,, promoter, underwriter, trustee,
partner, director or person performing similar functions.
Whenever it is herein provided that any Independent Person's
opinion or certificate shall be furnished to Mortgagee, such
Person shall be appointed by a Mortgagor order and such opinion
or certificate shall state that the signer has read this
definition and that the signer is Independent within the meaning
thereof. A Person who is performing or who has performed
services as an independent contractor to any specified Person
shall not be considered not Independent merely by reason of the
fact that such Person is performing or has performed such
services.
"Insurance Amount" has the meaning set forth in Section
5.10(a)(i).
"Insurance Requirements" means all terms of any insurance
policy covering or applicable to the Trust Estate or any part
thereof, all requirements of the issuer of any such policy, and
all orders, rules, regulations and other requirements of the
National Board of Fire Underwriters (or any other body exercising
similar functions) applicable to or affecting the Trust Estate or
any part thereof or any use or condition of the Trust Estate or
any part thereof.
(12)
"Insurance Trustee" means the Trustee or, if the Trustee so
elects, any bank, trust company or insurance company with a net
worth in excess of $100,000,000, designated by the Trustee.
"Insurer" means (i) an insurance company or companies
selected by Mortgagor authorized to issue insurance in the State
of New Jersey with an A.M. Best rating level of A minus or better
and an A.M. Best financial size category of VIII or better or
(ii) Lloyds of London so long as its financial capacity is not
such that prudent owners of first-class casino and hotel
complexes in Atlantic City, New Jersey would be unwilling to
accept Lloyds of London; provided, that with respect to the
insurance required to be maintained pursuant to Section
5.10(a)(i), up to 1.0% of the total amount of such insurance in
excess of the first $10,000,000 thereof may be maintained with an
insurance company or companies not meeting the foregoing A.M.
Best rating level and/or A.M. Best financial size categories; and
provided, further, that Mortgagor shall in all events use
commercially reasonable efforts to obtain insurance issued by
insurance companies having an A.M. Best rating level of better
than A minus.
"Land" means, collectively, the Owned Land and the Leased
Land.
"Lease" means each lease or sublease (made by Mortgagor, as
lessor or sublessor, as the case may be) of any space in any
building or buildings, an interest in which building or buildings
constitutes a part of the Trust Estate, including every agreement
relating thereto or entered into in connection therewith and
every guarantee of the performance and observance of the
covenants, conditions and agreements to be performed by the
lessee or sublessee under any such lease or sublease. For
purposes hereof, the term "Lease" shall include any license
agreement, concession agreement or other occupancy agreement.
Notwithstanding the foregoing, the term "Lease" shall not include
any transient room rentals.
"Leased Facilities" means, collectively, the Leased Land and
any buildings and improvements now or hereafter located thereon.
"Leased Land" means, collectively, the Marina Lease and any
other land that is now or hereafter subject to a Facility Lease.
"Legal Requirements" means all laws, statutes, codes, acts,
ordinances, orders, judgments, decrees, injunctions, rules,
regulations, permits, licenses, authorizations, directions and
requirements (including, without limitation, the New Jersey
Casino Control Act, the New Jersey Environment Cleanup
Responsibility Act and the New Jersey Spill Compensation and
Control Act of 1976) of all governments, departments,
commissions, boards, courts, authorities, agencies, officials and
(13)
<PAGE>
officers, of governments, federal, state and municipal
(including, without limitation, the New Jersey Department of
Environmental Protection and Energy, the Atlantic City Bureau of
Investigations, the Division of Gaming Enforcement of the State
of New Jersey, and the Casino Control Commission of the State of
New Jersey), foreseen or unforeseen, ordinary or extraordinary,
which now are or at any time hereafter become applicable to the
Trust Estate or any part thereof, or any of the adjoining
sidewalks, or any use or condition of the Trust Estate or any
part thereof, including, without limitation, the use of the
Casino Hotel as a gaming or gambling facility.
"Lessors" means the lessors under the Facility Leases.
"Marina Lease" means the lease agreement made September 1,
1990 between the State of New Jersey, as Landlord, and Mortgagor,
as tenant, respecting property known as the Senator Frank S.
Farley State Marina, Atlantic City, New Jersey, being designated
as a portion of Block B-4, Lot 11 on the tax map of the City of
Atlantic City, Atlantic County, New Jersey, as more particularly
described on Schedule A appended hereto and made a part hereof,
together with all amendments, restatements, extensions and
renewals of said lease agreement.
"Maturity" when used with respect to any Indebtedness means
the date on which the principal (or any portion thereof) of such
Indebtedness becomes due and payable as therein or herein
provided, whether at the Stated Maturity, upon acceleration,
optional redemption, required repurchase, scheduled principal
payment or otherwise.
"Midlantic Mortgage" means the Amended and Restated
Indenture of Mortgage, dated as of May 29, 1992, from the
Mortgagor to Midlantic National Bank, the Amended and Restated
Assignment of Leases and Rents, dated as of May 29, 1992, between
the same parties, and the Amended and Restated Assignment of
Operating Assets, dated as of May 29, 1992, between the same
parties and all amendments, restatements, extensions and renewals
thereof, which comply with the provisions of Section 5.19 hereof
and with the Senior Note Indenture.
"Midlantic Term Loan" has the meaning set forth in
Section 1.1 of the Senior Note Indenture.
"Mortgage Debt" has the meaning set forth in Section 1.1 of
the Senior Note Indenture.
"Mortgage Documents" has the meaning set forth in
Section 1.1 of the Mortgage Note Indenture.
"Mortgage Note Indenture" means that certain indenture of
even date herewith among the Company, as issuer, the Mortgagor,
(14)
<PAGE>
as guarantor, and First Bank National Association, as trustee, as
it may be amended from time to time, relating to the Company's
Mortgage Notes.
"Mortgage Notes" means the 11-3/4% Mortgage Notes due 2003
issued by the Company pursuant to the Mortgage Note Indenture.
"Mortgagee" has the meaning set forth in the first paragraph
of this instrument and its successors.
"Mortgagor" means the Person named as "Mortgagor" in the
first paragraph of this instrument until a successor entity shall
have become such pursuant to the applicable provisions of this
Senior Guarantee Mortgage, and thereafter, except to the extent
otherwise contemplated by Section 4.2, "Mortgagor" shall mean
such successor entity exclusively.
"Mortgagor Order" and "Mortgagor Request" mean,
respectively, a written order or request signed with a Mortgagor
Signature and delivered to Mortgagee.
"Mortgagor Signature" means the signature of the President
or a Vice President of a corporate general partner of Mortgagor
or of a general partner of Mortgagor.
"Mortgagor's Certificate" means a certificate signed with a
Mortgagor Signature and delivered to Mortgagee.
"Notices" has the meaning set forth in Section 1.2.
"Operating Assets" has the meaning set forth in Granting
Clause Sixth.
"Opinion of Counsel" means a written opinion of counsel who
may (except as otherwise expressly provided in this Senior
Guarantee Mortgage) be an employee of Mortgagor or of an
Affiliate of Mortgagor.
"Original Policy" means the ALTA Loan Policies of
Title Insurance issued by First American Title Insurance Company,
Chicago Title Insurance Company and Commonwealth Land Title
Insurance Company, pursuant to Title Commitment No. F237584L,
dated the date hereof.
"Outstanding Amount" has the meaning set forth in
Section 1.1 of the Senior Note Indenture.
"Owned Land" has the meaning set forth in Granting Clause
First.
"Permits" means all licenses, franchises, authorizations,
statements of compliance, certificates of operation, certificates
(15)
<PAGE>
of occupancy and permits required for the lawful ownership,
occupancy, operation and use of all or a material portion of the
Premises whether held by Mortgagor or any other Person (which may
be temporary or permanent) (including, without limitation, those
required for the use of the Casino Hotel as a licensed casino
facility), in accordance with all applicable Legal Requirements.
"Permitted Encumbrances" means:
(1) liens for taxes, assessments, or governmental charges
not yet due and payable, or if due and payable not
delinquent, to the extent that any fine, penalty, interest or
cost may be added for nonpayment thereof;
(2) Existing Encumbrances (including the Superior
Mortgage);
(3) F,F&E Financing Agreements permitted by the Senior Note
Indenture;
(4) the liens of the Senior Note Mortgage Documents and the
Mortgage Documents and any rights granted as provided therein and
the Senior Guarantee Mortgage;
(5) the lien of the Trustee provided for in Section 6.6 of
the Senior Note Indenture and of the trustees under corresponding
sections of the Mortgage Note Indenture and the PIK Note
Indenture;
(6) any lien or encumbrance which, under the provisions of
Section 5.7, constitutes a Permitted Encumbrance;
(7) Restricted Encumbrances;
(8) Working Capital Facility Mortgage;
(9) any lien or encumbrance permitted under Section 5.3 of
this Mortgage;
(10) any lien or encumbrance securing purchase money
indebtedness permitted by the Senior Note Indenture;
(11) modifications, refinancings, extension, renewals or
replacements, in whole or in part, of the liens described in
clauses (2) through (10) of this definition to the extent
permitted by Section 5.19 hereof and the Senior Note Indenture;
and
(12) any Facility Lease now existing or hereafter entered
into.
(16)
<PAGE>
"Person" means any individual, corporation, limited or
general partnership, joint venture, association, joint stock
company, trust, unincorporated organization or any other entity
or government or any agency or political subdivision thereof.
"PIK Note Indenture" means that certain indenture of even
date herewith among the Company, as issuer, the Mortgagor, as
guarantor, and First Bank National Association, as trustee, as it
may be amended from time to time, relating to the Company's PIK
Notes.
"PIK Notes" means the Company's 13 7/8% Pay-in-Kind Notes
due 2005.
"Premises" has the meaning set forth in Granting Clause
Fourth.
"Restoration" has the meaning set forth in Section
5.10(e)(iii).
"Restricted Encumbrances" means any Leases permitted by and
made in accordance with Section 5.12 of this Senior Guarantee
Mortgage.
"Security Act" has the meaning set forth in Section 1.1 of
the Senior Note Indenture.
"Senior Assignment Agreement" means the Senior Assignment
Agreement of even date herewith made by the Company, as assignor,
to the Trustee, as assignee, providing for assignment of the
Senior Partnership Note and the Senior Note Mortgage.
"Senior Guarantee" means the Senior Note Guarantee by the
Partnership of the Company's Indenture obligations (as defined in
the Senior Note Indenture) pursuant to Article Fourteen of the
Senior Note Indenture.
"Senior Guarantee Mortgage" means this Indenture of Mortgage
and Security Agreement, which evidences a lien pari passu with
the Senior Note Mortgage.
"Senior Indebtedness" means the Indebtedness evidenced by
the Midlantic Term Loan, the Senior Partnership Note, the Senior
Guarantee and a Working Capital Facility and any amendments,
extensions, renewals, replacements or restatements of any of the
foregoing to the extent permitted by the Senior Note Indenture.
"Senior Note Indenture" means that certain indenture of even
date herewith among Mortgagor, as guarantor, the Company, as
issuer, and the Trustee, as trustee, relating to the Senior Notes
as it may from time to time be supplemented, modified or amended
by one or more trust indentures or other instruments supplemental
(17)
<PAGE>
thereto entered into pursuant to the applicable provisions
thereof.
"Senior Note Mortgage" means a certain Indenture of Mortgage
and Security Agreement, dated of even date herewith, between the
Mortgagor, as mortgagor/debtor, and the Company, as
mortgagee/secured party, securing the Senior Partnership Note and
which evidences a lien pari passu with this Senior Guarantee
Mortgage.
"Senior Notes" means the 11.5% Senior Secured Notes due 2000
issued by the Mortgagee under the Senior Note Indenture.
"Senior Partnership Note" means that certain Senior
Partnership Note of even date herewith in the original principal
amount of $27,000,000 made by Mortgagor in favor of the Company,
a true copy of which note is attached to the Senior Note
Indenture as Exhibit A, and any amendments, extensions, renewals,
replacements or restatements of the same to the extent permitted
under the Senior Note Indenture.
"Settlement Costs" has the meaning set forth in
Section 5.17.
"Stated Maturity" when used with respect to any
Indebtedness, means the date specified in such Indebtedness as
the fixed date on which the principal of such Indebtedness is due
and payable.
"Superior Instrument Requirements" means the applicable
terms, conditions and provisions of any documentation which
constitutes, evidences, secures or governs any Senior
Indebtedness, together with the terms and conditions of the
Marina Lease.
"Superior Mortgage" means, collectively, the Midlantic
Mortgage.
"Taking" means the acquisition or condemnation by eminent
domain of the whole or any part of the Premises, by a competent
authority, for any public or quasi-public use or purpose.
"Tangible Personal Property" has the meaning set forth
in subclause (f) of Granting Clause Sixth.
"Trust Estate" has the meaning stated in the habendum to the
Granting Clauses.
"Trust Indenture Act" has the meaning set forth in
Section 1.1 of the Senior Note Indenture.
(18)
<PAGE>
"Trustee" means the Person named as the "Trustee" in the
first paragraph of the Senior Note Indenture and any successor
thereto,
"Uniform Commercial Code" means the New Jersey Uniform
Commercial Code N.J.S.A. 12A:1-101, et seq.
"Working Capital Facility" has the meaning set forth in
Section 1.1 of the Senior Note Indenture.
"Working Capital Facility Mortgage" any mortgage or other
security interest or agreement which secures a Working Capital
Facility and which evidences a lien pari passu with the lien of
the Senior Note Mortgage.
Section 1.2. Notices.
(a) Any request, demand, authorization, direction, notice
(including, without limitation, a notice of default), consent,
waiver or other document provided or permitted by this Senior
Guarantee Mortgage to be made upon, given or furnished to, or
filed with, Mortgagor, Mortgagee or the Trustee (collectively,
"Notices") shall be in writing and shall be deemed given either
(i) when delivered by hand (including by overnight courier) or
(ii) two days after sending by registered or certified mail,
postage prepaid, addressed as follows:
To Mortgagor:
Trump's Castle Associates
Trump's Castle Casino Resort
Brigantine Boulevard and Huron Avenue
Atlantic City, New Jersey 08401
Attn: Chief Financial Officer
and
Willkie Farr & Gallagher
One Citicorp Center
153 East 53rd Street
New York, New York 10022
Attn: Thomas M. Cerabino, Esq.
To Mortgagee:
First Bank National Association
c/o First Trust National Association
180 East Fifth Street
St. Paul, Minnesota 55101
Attn: Corporate Trust Department
(19)
<PAGE>
(b) By Notice to Mortgagor or Mortgagee either party may
designate additional or substitute addresses for Notices which,
notwithstanding Subsection (a) above, shall be deemed given when
received.
Section 1.3. Form and Contents of
Documents Delivered to Mortgagee.
Whenever several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not
necessary that all such matters be certified by, or covered by
the opinion of, only one such Person, or that they be so
certified or covered by only one document, but one such Person
may certify or give an opinion with respect to some matters and
one or more other such Persons as to other such matters in one or
several documents.
Any certificate or opinion of a general partner of Mortgagor
may be based, insofar as it relates to legal matters, upon a
certificate or opinion of, or representations by, counsel, unless
such general partner knows that the certificate or opinion or
representations with respect to the matters upon which his
certificate or opinion is based are erroneous. Any Opinion of
Counsel may be based, insofar as it relates to factual matters,
upon a certificate or opinion of, or representations by, a
general partner of Mortgagor stating that the information with
respect to such factual matters is in the possession of
Mortgagor, unless such counsel knows that the certificate or
opinion or representations with respect to such matters are
erroneous. If appropriate to the matter being opined upon and to
the extent not prohibited by the Senior Note Indenture Act,
conclusions stated in any Opinion of Counsel may be subject to
rights of creditors and the availability of equitable remedies.
Whenever any Person is required to make, give or execute two
or more applications, requests, consents, certificates,
statements, opinions or other instruments under this Senior
Guarantee Mortgage, they may, but need not, be consolidated to
form one instrument.
Whenever in this Senior Guarantee Mortgage, in connection
with any application or certificate or report to Mortgagee, it is
provided that Mortgagor shall deliver any document as a condition
of the granting of such application, or as evidence of
Mortgagor's compliance with any term hereof, it is intended that
the truth and accuracy, at the time of the granting of such
application or at the effective date of such certificate or
report (as the case may be), of the facts and opinions stated in
such document shall in such case be conditions precedent to the
right of Mortgagor to have such application granted or to the
sufficiency of such certificate or report.
(20)
<PAGE>
Every application, certificate, report, affidavit, opinion,
consent, statement or other instrument required to be delivered
to Mortgagee under this Senior Guarantee Mortgage or under any
other Mortgage Document shall be in writing and shall be prepared
and delivered without cost or expense to Mortgagee.
Section 1.4. Compliance Certificates and Opinions.
Upon any application or request by Mortgagor to Mortgagee to
take any action under any provision of this Senior Guarantee
Mortgage, Mortgagor shall furnish to Mortgagee a Mortgagor's
Certificate stating that all conditions precedent, if any,
provided for in this Senior Guarantee Mortgage relating to the
proposed action have been complied with and an Opinion of Counsel
stating that in the opinion of such counsel all such conditions
precedent, if any, have been complied with, except that in the
case of any such application or request as to which the
furnishing of such documents is specifically required by any
provision of this Senior Guarantee Mortgage relating to such
particular application or request, no additional certificate or
opinion need be furnished. Every certificate or opinion with
respect to compliance with a condition or covenant provided for
in this Senior Guarantee Mortgage shall include:
(a) a statement that each individual signing such
certificate or opinion has read such condition or covenant and
the definitions herein relating thereto;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or
opinions contained in such certificate or opinion are based;
(c) a statement that, in the opinion of each such
individual, he has made such examination or investigation as is
necessary to enable him to express an informed opinion as to
whether or not such condition or covenant has been complied with;
and
(d) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 1.5. Effect of Headings and Table of Contents.
The Article and Section headings herein and in the Table of
Contents are for convenience only and shall not affect the
construction hereof.
Section 1.6. Successors and Assigns; Amendments.
(a) Subject to the provisions of Sections 1.10 and 4.2
hereof and Sections 3.11 and 8.2 of the Senior Note Indenture,
this Senior Guarantee Mortgage shall be binding upon and inure to
(21)
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the benefit of the parties hereto and of the respective
successors and assigns of the parties hereto to the same effect
as if each such successor or assign were in each case named as a
party to this Senior Guarantee Mortgage.
(b) This Senior Guarantee Mortgage may not be modified,
amended, discharged, released nor any of its provisions waived
except by agreement in writing executed by Mortgagor and
Mortgagee and in accordance with the provisions of this Senior
Guarantee Mortgage and the Senior Note Indenture.
Section 1.7. Separability Clause.
In case any provision in this Senior Guarantee Mortgage
shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not
in any way be affected or impaired thereby.
Section 1.8. Benefits of Mortgage.
Nothing in this Senior Guarantee Mortgage or in the Senior
Partnership Note, express or implied, shall give to any Person,
other than the parties hereto and their successors and assigns,
any benefit or any legal or equitable right, remedy or claim
under this Senior Guarantee Mortgage.
Section 1.9. Governing Law.
This Senior Guarantee Mortgage shall be deemed to be a
contract under the laws of the State of New Jersey and shall be
construed in accordance with and governed by the laws of the
State of New Jersey.
Section 1.10. Limitation on Liability.
Notwithstanding anything herein or in any other agreement,
document, certificate, instrument, statement or omission referred
to below to the contrary, Mortgagor is liable hereunder only to
the extent of the assets of Mortgagor and no other person or
entity, including, without limitation, any partner, officer,
committee or committee member of Mortgagor or any partner therein
or in any partnership Affiliate of Mortgagor, or any
incorporator, officer, director or shareholder of any corporate
partner of Mortgagor or of any corporate Affiliate of Mortgagor,
or any Affiliate or controlling person or entity of any of the
foregoing, or any agent, employee, or lender of any of the
foregoing, or any successor, personal representative, heir or
assign of any of the foregoing, in each case past, present or as
they may exist in the future, shall be liable in any respect
(including, without limitation, the breach of any representation,
warranty, covenant, agreement, condition or indemnification or
contribution undertaking contained herein or therein) under, in
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connection with, arising out of or relating to this Senior
Guarantee Mortgage, or any other agreement, document,
certificate, instrument or statement (oral or written) related
to, executed or to be executed, delivered or to be delivered, or
made or to be made, or any omission made or to be made, in
connection with any of the foregoing or any of the transactions
contemplated in any such agreement, document, certificate,
instrument, or statement. Any agreement, document, certificate,
statement or other instrument to be executed simultaneously with,
in connection with, arising out of or relating to this Senior
Guarantee Mortgage or any other agreement, document, certificate,
statement or instrument referred to above, or any agreement,
document, certificate, statement or instrument contemplated
hereby shall contain language mutatis mutandis to this Section
1.10 and, if such language is omitted, shall be deemed to contain
such language.
Section 1.11. Provisions Required by Senior Note Indenture.
Whenever the provisions of this Senior Guarantee Mortgage
and the provisions of the Senior Note Indenture shall be
inconsistent, the provisions of the Senior Note Indenture shall
govern.
Section 1.12. Rights of Trustee as Mortgagee.
Except as otherwise provided in Section 6.2 of the Senior
Note Indenture:
(1) Mortgagee may rely, and shall be protected in
acting or refraining from acting, upon any resolution,
certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note,
other evidence of indebtedness or other paper or document
believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(2) any request or direction of Mortgagor mentioned
herein shall be sufficiently evidenced by a Mortgagor
Request or Mortgagor Order;
(3) whenever in the administration of this Senior
Guarantee Mortgage, Mortgagee shall deem it desirable that a
matter be proved or established prior to taking, suffering
or omitting any action hereunder, Mortgagee (unless other
evidence be herein specifically prescribed) may, in the
absence of bad faith on its part, rely upon a Mortgagor's
Certificate;
(4) Mortgagee may consult with counsel and any written
advice of such counsel or any Opinion of Counsel shall be
full and complete authorization and protection in respect of
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any action taken, suffered or omitted by Mortgagee hereunder in
good faith and in reliance thereon;
(5) Mortgagee shall be under no obligation to exercise
any of the rights or powers vested in it by this Senior
Guarantee Mortgage at the request or direction of any of the
Holders pursuant to the Senior Note Indenture, unless such
Holders shall have offered to Mortgagee reasonable security
or indemnity against the costs, expenses and liabilities
which might be incurred therein or thereby in compliance
with such request or direction;
(6) Mortgagee shall not be bound to make any
investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order,
approval, appraisal, bond, debenture, note, coupon, security
or other paper or document but Mortgagee, in its discretion,
may make such further inquiry or investigation into such
facts or matters as it may see fit, and, if Mortgagee shall
determine to make such further inquiry or investigation, it
shall be entitled (subject to the express limitations with
respect thereto contained in this Senior Guarantee Mortgage)
to examine the books, records and premises of Mortgagor,
personally or by agent or attorney;
(7) Mortgagee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or
by or through agents or attorneys, and Mortgagee shall not
be responsible for any misconduct or negligence on the part
of any agent or attorney appointed with due care by it
hereunder;
(8) Mortgagee shall not be personally liable, in case
of entry by it upon the Trust Estate, for debts contracted
or liabilities or damages incurred in the management or
operation of the Trust Estate;
(9) Mortgagor shall pay or cause to be paid to the
Trustee all compensation and other amounts provided in
Section 6.6 of the Senior Note Indenture; and
(10) no provision of this Senior Guarantee Mortgage
shall require Mortgagee to expend or risk its own funds or
otherwise incur any financial liability in the performance
of its obligations hereunder, or in the exercise of any of
its rights or powers.
Section 1.13. Mortgage Subject to Casino Control Act.
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Each provision of this Senior Guarantee Mortgage is subject
to and shall be enforced in compliance with the provisions of the
New Jersey Casino Control Act.
Section 1.14. Discharge of Lien.
If (a) Mortgagor shall pay or cause to be paid, or there
shall otherwise be paid, to Mortgagee all amounts required to be
paid by Mortgagor pursuant to this Senior Guarantee Mortgage, the
Senior Notes and the Senior Note Guarantee and the conditions
precedent for the Senior Note Indenture to cease, determine and
become null and void (except for any surviving rights of transfer
or exchange of the Senior Notes provided in Section 13.1 of the
Senior Note Indenture and for the obligation to pay the Trustee's
fees and expenses provided in Section 6.6 of the Senior Note
Indenture) in accordance with Section 13.1 of the Senior Note
Indenture shall have occurred, or (b) there shall have occurred a
"defeasance" (as defined in Section 4.2 of the Senior Note
Indenture) of the Senior Notes, or (c) there shall have occurred
a "covenant defeasance" (as defined in Section 4.3 of the Senior
Note Indenture), then in any such case Mortgagee shall promptly
cancel and discharge this Senior Guarantee Mortgage, and any
financing statements filed in connection herewith and execute and
deliver to Mortgagor all such instruments as may be necessary,
required or appropriate to evidence such discharge and
satisfaction of said lien or liens.
Section 1.15. General Application.
(a) The remedies of Mortgagee upon any default by Mortgagor
in the fulfillment of any of its obligations hereunder shall be
limited in each instance by the provisions of Section 1.10,
whether or not the provisions providing for such remedies
explicitly refer to such Section.
(b) The assertion of any rights upon any Default shall be
subject in each instance to, if required, the giving of any
notice and the expiration of any grace period provided for in
Section 3.1 as a condition to such Default becoming an Event of
Default, unless the Senior Note Indenture Act requires otherwise,
in which case the Senior Note Indenture Act shall control.
(c) For the purposes of this Senior Guarantee Mortgage, it
is understood that an event which does not materially diminish
the value of Mortgagee's interest in the Trust Estate shall not
be deemed an "impairment of security," as that phrase is used in
this Senior Guarantee Mortgage.
Section 1.16. Senior Guarantee Mortgage Deemed to be Security
Agreement.
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To the extent that the grant of a security interest in any
portion of the Trust Estate is governed by the Uniform Commercial
Code, this Senior Guarantee Mortgage is hereby deemed to be as
well a security agreement under the Uniform Commercial Code for
the purpose of creating hereby a security interest in all of
Mortgagor's right, title and interest in and to said property,
securing the obligations secured hereby, for the benefit of
Mortgagee.
Section 1.17. No Duplication of Notices or Payments.
Whenever it is provided in this Senior Guarantee Mortgage
and the Senior Note Mortgage that Mortgagor shall deliver any
notice or document, or is required to make any payment, the
delivery of such notice or document or the making of such payment
shall constitute the delivery of such notice or document or the
making of such payment in satisfaction of the terms, conditions
and provisions of both this Senior Guarantee Mortgage and the
Senior Note Mortgage, provided that such notice, document or
payment states, or is accompanied by a letter stating, that such
notice, document or payment is being delivered in satisfaction of
the terms, conditions and provisions of this Senior Guarantee
Mortgage and the Senior Note Mortgage.
ARTICLE TWO
RELEASE; SUBORDINATION
Section 2.1. Possession by Mortgagor.
So long as there shall have been no acceleration of maturity
of the Senior Notes, Mortgagor shall be suffered and permitted,
with power freely and without let or hindrance on the part of
Mortgagee, subject to the provisions of this Senior Guarantee
Mortgage and the Senior Note Indenture, to possess, use, manage,
operate and enjoy the Trust Estate and every part thereof and to
collect, receive, use, invest and dispose of the rents, issues,
tolls, profits, revenues and other income from the Trust Estate
or any part thereof, to use, consume and dispose of any
consumable, goods, wares and merchandise in the ordinary course
of business of operating the Casino Hotel and to adjust and
settle all matters relating to choses in action, leases and
contracts.
Section 2.2. Obsolete Property.
Mortgagor shall have the right, at any time and from time to
time, unless an Event of Default shall have occurred and be
continuing, without any release from or consent by Mortgagee:
(a) to sell or dispose of, free from the lien of this
Senior Guarantee Mortgage, any Tangible Personal Property which,
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in its reasonable opinion, may have become obsolete or unfit for
use or which is no longer necessary in the conduct of its
businesses or the operation of the Trust Estate, and no purchaser
of any such property shall be bound to inquire into any question
affecting Mortgagor's right to sell or otherwise dispose of the
same free from the lien of this Senior Guarantee Mortgage;
(b) to alter, repair, replace, change the location or
position of and add to any Tangible Personal Property; provided,
however, that no change shall be made in the location of any such
property subject to the lien of this Senior Guarantee Mortgage
which would in any respect impair the security of this Senior
Guarantee Mortgage upon such property; or
(c) to renew, extend, surrender, terminate, modify or amend
any leases of Tangible Personal Property, when, in Mortgagor's
reasonable opinion, it is prudent to do so.
Mortgagor shall retain any net cash proceeds received from
the sale or disposition of any Tangible Personal Property under
Subsection (a) of this Section 2.2, in the business of operating
the Casino Hotel.
Mortgagee shall be under no responsibility or duty with
respect to the exercise of the rights of Mortgagor under this
Section 2.2 or the application of the proceeds of any sale or
disposition of any Tangible Personal Property.
Mortgagee shall, from time to time, promptly execute any
written instrument in form satisfactory to Mortgagee to confirm
the propriety of any action taken by Mortgagor under this Section
2.2, upon receipt by Mortgagee of a Mortgagor Request requesting
the same, together with a Mortgagor's Certificate stating that
the action so to be confirmed was duly taken in conformity with
this Section 2.2, and that the execution of such written
instrument is appropriate to confirm the propriety of such action
under this Section 2.2; provided, that Mortgagee shall have no
liability thereunder and all costs and expenses (including,
without limitation, reasonable attorneys' fees and disbursements)
shall be paid by Mortgagor.
Section 2.3. F,F&E Financing Agreements.
Notwithstanding any provision contained in this Senior
Guarantee Mortgage or the Senior Note Indenture to the contrary,
if Mortgagor acquires Tangible Personal Property and/or other
items constituting operating assets subject to any F,F&E
Financing Agreement, or becomes the lessee under a lease for any
of the same and if the document evidencing such F,F&E Financing
Agreement prohibits subordinate liens or the provisions of any
such lease prohibits any assignment thereof by the lessee, and if
any such prohibition is customary with respect to similar
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transactions of the lender or lessor (as evidenced by a
Mortgagor's Certificate delivered to Mortgagee, together with
such other evidence as Mortgagee may reasonably request), as the
case may be, then the property so purchased or the lessee's
interest in the lease, as the case may be, shall be deemed to be
Excepted Property. If any such F,F&E Financing Agreement permits
subordinate liens, then Mortgagee shall execute and deliver to
Mortgagor, at Mortgagor's expense, such documents as the holder
of such F,F&E Financing Agreement may reasonably request to
evidence the subordination of the lien of this Senior Guarantee
Mortgage and the Mortgage Documents to the lien of such F,F&E
Financing Agreement; provided, however, that Mortgagee shall have
no obligation to execute and deliver such documents, and the lien
of this Senior Guarantee Mortgage shall not be subordinate to any
such F,F&E Financing Agreement, unless (a) such F,F&E Financing
Agreement shall contain a provision binding upon the holder of
such F,F&E Financing Agreement that (i) if the holder of such
F,F&E Financing Agreement shall give to Mortgagor any notice of
default thereunder, such holder shall at the same time and in the
same manner serve a copy of such notice on Mortgagee at the
address designated herein (or such other address as Mortgagee may
designate by notice given to the holder of such F,F&E Financing
Agreement in the manner provided for notices hereunder), and that
no such notice to Mortgagor shall be deemed to have been duly
given unless and until a copy thereof has been so provided to
Mortgagee, and (ii) promptly following the last date upon which
Mortgagor may cure such default, if Mortgagor shall fail to cure
such default, the holder of such F,F&E Financing Agreement shall
give notice to Mortgagee stating the manner in which Mortgagor
shall have failed to cure its said default, in which event
Mortgagee shall be permitted to cure the default and, with
respect thereto, Mortgagee shall have the same amount of time,
after such notice, within which to cure the said default, as is
provided for under the provisions of such F,F&E Financing
Agreement to be given to Mortgagor therefor after notice or (b)
Mortgagor delivers to Mortgagee a Mortgagor's Certificate
certifying that (i) the provision described in clause (a) is not
customarily included by the lender or lessor in its F,F&E
Financing Agreements in similar transactions and (ii) although
Mortgagor has used reasonable efforts to have included in such
F,F&E Financing Agreement such a provision, Mortgagor has been
unsuccessful in obtaining such a provision.
ARTICLE THREE
REMEDIES
Section 3.1. Events of Default.
"Event of Default," whenever used herein, means any one of
the following events (including any applicable notice requirement
and any period of grace, as specified in this Section 3.1)
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(whatever the reason for such event and whether it shall be
voluntary or involuntary or be effected by operation of law or
pursuant to any judgment, decree or order of any court or any
order, rule or regulation of any administrative or governmental
body):
(a) default in the payment of any interest on the Senior
Notes or the Senior Partnership Note when such interest becomes
due and payable and continuance of such default for a period of
30 days; or
(b) default in the payment of all or any portion of the
principal of (or premium, if any, on) the Senior Partnership Note
or the Senior Notes when the same becomes due and payable at its
Maturity; or
(c) default in the payment of any other sum due under the
Senior Partnership Note, the Senior Notes or this Senior
Guarantee Mortgage, and the continuance of such default for a
period of 30 days after there has been given to Mortgagor a
notice specifying such default and requiring it to be remedied
and stating that such notice is a "Notice of Default" hereunder;
or
(d) default in the payment or performance of any obligation
under the Senior Note Guarantee at the time such payment or
performance is required under Article Fourteen of the Senior Note
Indenture; or
(e) default in the performance, or breach, of any
covenant of Mortgagor in this Senior Guarantee Mortgage (other
than a covenant, a default in the performance or breach of which
is elsewhere in this Section 3.1 specifically dealt with), and
continuance of such default or breach for a period of 30 days
after there has been given to Mortgagor a notice specifying such
default or breach and requiring it to be remedied and stating
that such notice is a "Notice of Default" hereunder, unless (i)
the default or breach is of such a nature that is curable but not
susceptible of being cured with due diligence within such 30-day
period (for reasons other than the lack of funds), (ii) Mortgagor
delivers an Mortgagor's Certificate to Mortgagee within such
30-day period stating (A) the applicability of the provisions of
clause (i) to such default or breach, (B) Mortgagor's intention
to remedy such default or breach with reasonable diligence and
(C) the steps which Mortgagor has undertaken or intends to
undertake to remedy such default or breach and (iii) Mortgagor
delivers to Mortgagee additional Mortgagor's Certificates every
30 days thereafter updating the information contained in the
certificate described in clause (ii), in which case such 30-day
period shall be extended for such further period of time (but in
no event more than 60 days after the last day of such 30-day
period) as may reasonably be required to cure the same, provided
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that Mortgagor is then proceeding and thereafter continues to
proceed to cure the same with reasonable diligence; or
(f) an "Event of Default," as defined in Section 5.1 of the
Senior Note Indenture, shall occur and be continuing; or
(g) default by Mortgagor under any of the terms of any
Facility Lease which shall not be fully cured or waived prior to
the expiration of any grace period (as such grace period may be
extended) contained in such Facility Lease; or
(h) default in the performance, or breach, of any of the
provisions of Article Four hereof; or
(i) if any representation or warranty of Mortgagor set
forth in this Senior Guarantee Mortgage or in any notice,
certificate, demand or request delivered to Mortgagee pursuant to
this Senior Guarantee Mortgage shall prove to be incorrect in any
material respect as of the time when made; or
(j) an "Event of Default, as defined in Section 3.1 of the
Senior Partnership Note Mortgage, shall occur and be continuing.
An Event of Default shall not be deemed to exist by reason
of any event which Mortgagor is contesting in compliance with the
provisions of Section 5.8.
Section 3.2. [Intentionally Omitted]
Section 3.3. Application of Moneys Received by Mortgagee.
Any moneys received by Mortgagee pursuant to the provisions
of this Article Three (including moneys received by the Trustee
after any action or act by Mortgagee under Section 3.10) shall be
applied by Mortgagee in accordance with the provisions of
Section 5.6 of the Senior Note Indenture.
Section 3.4. Restoration of Rights and Remedies.
If Mortgagee has instituted any proceeding to enforce any
right or remedy under this Senior Guarantee Mortgage and such
proceeding has been discontinued or abandoned for any reason or
has been determined adversely to Mortgagee, then and in every
such case Mortgagor and Mortgagee shall, subject to any
determination in such proceeding, be restored to their respective
former positions hereunder, and thereafter all rights and
remedies of Mortgagee shall continue as though no such proceeding
had been instituted.
Section 3.5. Rights and Remedies Cumulative.
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No right or remedy herein conferred upon or reserved to
Mortgagee is intended to be exclusive of any other right or
remedy, and every right and remedy shall, to the extent permitted
by law, be cumulative and in addition to every other right and
remedy given hereunder or now or hereafter existing at law or in
equity or otherwise. The assertion or employment of any right or
remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
Section 3.6. Delay or Omission Not Waiver.
No delay or omission of Mortgagee to exercise any right or
remedy accruing upon an Event of Default shall impair any such
right or remedy or constitute a waiver of any such Event of
Default or an acquiescence therein. Every right and remedy given
by this Article Three or by applicable law to Mortgagee may be
exercised, from time to time, and as often as may be deemed
expedient, by Mortgagee.
Section 3.7. Undertaking for Costs.
If any action or proceeding shall be commenced (including,
without limitation, an action to foreclose this Senior Guarantee
Mortgage or to collect the indebtedness secured hereby) to which
action or proceeding Mortgagee is made or becomes a party, or in
which it becomes necessary in the opinion of Mortgagee to defend
or uphold the lien of this Senior Guarantee Mortgage, Mortgagor
shall pay to Mortgagee all expenses, including, without
limitation, reasonable attorneys' fees, disbursements and court
costs incurred by Mortgagee in connection therewith, together
with interest at the rate then payable on the Senior Partnership
Note, from the date of payment less the net amount received by
Mortgagee, as its interests may appear under any title insurance
policy, and, until paid, all such expenses, together with
interest as aforesaid, shall be secured by the lien of this
Senior Guarantee Mortgage.
Section 3.8. Waiver of Appraisement and Other Laws.
To the full extent that it may lawfully so agree, Mortgagor
will not at any time insist upon, plead, claim or take the
benefit or advantage of, any appraisement, valuation, stay,
extension or redemption law now or hereafter in force, in order
to prevent or hinder the enforcement of this Senior Guarantee
Mortgage or the absolute sale of the Trust Estate, or any part
thereof, or the possession thereof by any purchaser at any sale
under this Article Three; and Mortgagor, for itself and all who
may claim under Mortgagor, so far as Mortgagor or they now or
hereafter may lawfully do so, hereby waives the benefit of all
such laws. Mortgagor, for itself and all who may claim under
Mortgagor, waives, to the extent that Mortgagor may lawfully do
so, all right to have the property in the Trust Estate marshalled
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upon any foreclosure hereof, and agrees that any court having
jurisdiction to foreclose this Senior Guarantee Mortgage may
order the sale of the Trust Estate as an entirety.
If any law in this Section 3.8 referred to and now in force,
of which Mortgagor or its successor or successors might take
advantage despite this Section 3.8, shall hereafter be repealed
or cease to be in force, such law shall not thereafter be deemed
to constitute any part of the contract herein contained or to
preclude the application of this Section 3.8.
Section 3.9. Entry.
Mortgagor agrees that upon the occurrence, and during the
continuance, of an Event of Default, Mortgagor, upon demand of
Mortgagee, shall forthwith surrender to Mortgagee the actual
possession of, and it shall be lawful for Mortgagee by such
officers or agents as it may appoint to enter and take possession
of, the Trust Estate (and the books and papers of Mortgagor), and
to hold, operate and manage the Trust Estate (including the
making of all needful repairs, and such alterations, additions
and improvements as Mortgagee shall deem wise) and to receive the
rents, issues, tolls, profits, revenues and other income thereof,
and, after deducting the costs and expenses of entering, taking
possession, holding, operating and managing the Trust Estate, as
well as payments for taxes, insurance and other proper charges
upon the Trust Estate and reasonable compensation to itself, its
agents and counsel, to apply the same as provided in Section 3.3;
provided, however, that Mortgagee's rights under this Section 3.9
shall be subject to the provisions of the New Jersey Casino
Control Act and Section 3.14. Whenever all that is then due upon
the Senior Partnership Note and under any of the terms of the
Senior Note Guarantee or this Senior Guarantee Mortgage shall
have been paid and all defaults hereunder shall have been cured,
Mortgagee shall surrender possession to Mortgagor.
Section 3.10. Power of Sale; Suits for Enforcement.
If an Event of Default shall occur and be continuing,
Mortgagee, with or without entry, in its discretion, may:
(a) sell, subject to any mandatory requirements of
applicable law, the Trust Estate as an entirety, or in such
parcels, as Mortgagee may determine, to the highest bidder at
public auction at such place and at such time (which sale may be
adjourned by Mortgagee from time to time in its discretion by
announcement at the time and place fixed for such sale, without
further notice) and upon such terms as Mortgagee may fix and
briefly specify in a notice of sale to be published as required
by law; or
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(b) proceed to protect and enforce its rights under this
Senior Guarantee Mortgage by sale pursuant to judicial
proceedings or by a suit, action or proceeding in equity or at
law or otherwise, whether for the specific performance of any
covenant or agreement contained in this Senior Guarantee Mortgage
or in aid of the execution of any power granted in this Senior
Guarantee Mortgage or for the foreclosure of this Senior
Guarantee Mortgage or for the enforcement of any other legal,
equitable or other remedy, as Mortgagee shall deem most effectual
to protect and enforce any of the rights of Mortgagee; the
failure to join tenants shall not be asserted as a defense to any
foreclosure or proceeding to enforce the rights of Mortgagee.
Section 3.11. Incidents of Sale.
Upon any sale of any of the Trust Estate, whether made under
the power of sale hereby given or pursuant to judicial
proceedings, to the extent permitted by law:
(a) the principal of and accrued interest on the Senior
Partnership Note, if not previously due, shall at once become and
be immediately due and payable;
(b) subject to the provisions of Section 3.14 and the
receipt of any required prior approvals of the New Jersey Casino
Control Commission, Mortgagee may bid for and purchase the
property offered for sale, and upon compliance with the terms of
sale may hold, retain, possess and dispose of such property,
without further accountability, and may, in paying the purchase
money therefor, deliver the Senior Partnership Note or claims for
interest thereon in lieu of cash to the amount which shall, upon
distribution of the net proceeds of such sale, be payable
thereon, and the Senior Partnership Note, in case the amounts so
payable thereon shall be less than the amount due thereon, shall
be returned to Mortgagee after being appropriately stamped to
show the partial payment;
(c) Mortgagee may make and deliver to the purchaser or
purchasers a good and sufficient deed, bill of sale and
instrument of assignment and transfer of the property sold;
(d) Mortgagee is hereby irrevocably appointed the true and
lawful attorney of Mortgagor, in its name and stead, to make all
necessary deeds, bills of sale and instruments of assignment and
transfer of the property thus sold; and for that purpose it may
execute all necessary deeds, bills of sale and instruments of
assignment and transfer, and may substitute one or more persons,
firms or corporations with like power, Mortgagor hereby ratifying
and confirming all that its said attorney or such substitute or
substitutes shall lawfully do by virtue hereof; but if so
requested by Mortgagee or by any purchaser, Mortgagor shall
ratify and confirm any such sale or transfer by executing and
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delivering to Mortgagee or to such purchaser or purchasers all
proper deeds, bills of sale, instruments of assignment and
transfer and releases as may be designated in any such request;
(e) all right, title, interest, claim and demand
whatsoever, either at law or in equity or otherwise, of Mortgagor
of, in and to the property so sold shall be divested and such
sale shall be a perpetual bar both at law and in equity against
Mortgagor, its successors and assigns, and against any and all
persons claiming or who may claim the property sold or any part
thereof from, through or under Mortgagor, its successors and
assigns; and
(f) the receipt of Mortgagee or of the officer making such
sale shall be a sufficient discharge to the purchaser or
purchasers at such sale for his or their purchase money and such
purchaser or purchasers and his or their assigns or personal
representatives shall not, after paying such purchase money and
receiving such receipt, be obliged to see to the application of
such purchase money, or be in anywise answerable for any loss,
misapplication or non-application thereof.
Section 3.12. Receiver.
Upon the occurrence of an Event of Default and commencement
of judicial proceedings by Mortgagee to enforce any right under
this Senior Guarantee Mortgage, Mortgagee shall be entitled, as
against Mortgagor, without notice or demand and without regard to
the adequacy of the security for the Senior Partnership Note or
the Senior Note Guarantee or the solvency of Mortgagor, to the
appointment of a receiver of the Trust Estate, and of the rents,
issues, profits, revenues and other income thereof; provided,
however, that Mortgagee's rights under this Section 3.12 shall be
subject to the provisions of the New Jersey Casino Control Act
and Section 3.14 hereof.
Section 3.13. Suits to Protect the Trust Estate.
Mortgagor hereby acknowledges the right of Mortgagee, in the
name and on behalf of Mortgagor, (a) to appear in and defend any
action or proceeding brought with respect to the Trust Estate or
any part thereof and (b) upon 5 days' prior notice to Mortgagor
(or such shorter period or without notice if deemed necessary and
appropriate by Mortgagee), to institute and to maintain such
proceedings as Mortgagee may deem necessary and appropriate, but
in the case of (a) and (b) only to prevent any impairment of
security or any impairment of the Trust Estate by any acts which
may be unlawful or in violation of this Senior Guarantee Mortgage
and to protect Mortgagee's interests in the Trust Estate and in
the rents, issues, profits, revenues and other income arising
therefrom, including the right to institute and maintain
proceedings to restrain the enforcement of or compliance with any
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governmental enactment, rule or order that may be
unconstitutional or otherwise invalid, if the enforcement of or
compliance with such enactment, rule or order would impair the
security hereunder or be materially prejudicial to the interests
of Mortgagee.
Section 3.14. Management of the Premises.
Without limiting the generality of any other provision of
this Article Three, following an Event of Default and the taking
of possession of the Trust Estate or any part thereof by
Mortgagee and/or the appointment of a receiver of the Trust
Estate or any part thereof, Mortgagee or any such receiver shall
be authorized, in addition to the rights and powers of Mortgagee
and such receiver set forth elsewhere in this Senior Guarantee
Mortgage, to take any action permitted under Section 5.17 of the
Senior Note Indenture.
ARTICLE FOUR
CONSOLIDATION, MERGER, CONVEYANCE,
TRANSFER OR LEASE
Section 4.1. Consolidation, Merger, Conveyance
or Transfer only on Certain Terms.
Mortgagor shall comply with all provisions applicable to
Mortgagor in Article Eight of the Senior Note Indenture.
Section 4.2. Successor Entity Substituted.
Upon any consolidation or merger, or any sale, assignment,
conveyance, transfer or disposition of the Trust Estate or any
portion thereof in accordance with Section 8.1 of the Senior Note
Indenture (other than a lease), the successor Person formed by
such consolidation or into which Mortgagor is merged or the
successor Person to which such sale, assignment, conveyance,
transfer or disposition is made shall succeed to, and be
substituted for, and may exercise every right and power of,
Mortgagor under this Senior Guarantee Mortgage with the same
effect as if such successor had been named as Mortgagor herein;
and thereafter, except in the case of a lease, the Person named
as "Mortgagor" in the first paragraph of this instrument or any
successor Person which shall theretofore have become such in the
manner prescribed in this Article shall be discharged from all
obligations and covenants under this Senior Guarantee Mortgage.
ARTICLE FIVE
COVENANTS AND REPRESENTATIONS OF MORTGAGOR
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Section 5.1. Performance of Senior Note Guarantee Obligations.
Mortgagor shall duly and punctually pay and perform its
obligations under the Senior Note Guarantee in accordance with
the terms of the Senior Note Indenture (including, without
limitation, Article Fourteen thereof).
Section 5.2. F,F&E Financing Agreements.
Mortgagor shall comply with all of the terms and conditions
set forth in any F,F&E Financing Agreements before the expiration
of any applicable notice and cure periods contained in the F,F&E
Financing Agreements.
Section 5.3. Limitations on Liens and Transfers.
(a) Mortgagor shall not create, incur, suffer or permit to
be created or incurred or to exist any mortgage, lien, charge or
encumbrance on or pledge of any of the Trust Estate, other than
(i) Permitted Encumbrances, (ii) a notice of intention filed by a
mechanic, materialman or laborer under the New Jersey mechanic's
lien law, and (iii) a building contract filed by a contractor or
subcontractor under the New Jersey mechanic's lien law. Without
limiting the generality of the foregoing sentence but
notwithstanding the provisions of the foregoing sentence,
Mortgagor shall not be deemed to have breached the provisions of
the foregoing sentence by virtue of the existence of a lien for
Impositions or mechanics' liens so long as Mortgagor is in good
faith contesting the validity of the same in accordance with the
provisions of Section 5.8.
(b) The lien of this Senior Guarantee Mortgage on the date
hereof shall be subject and subordinate to the lien of any
Existing Encumbrances to the extent that each thereof encumbers
Mortgagor's interest in the Trust Estate or any part thereof.
The foregoing provisions of this Section 5.3(b) shall be
self-operative and no further instrument shall be required to
give effect to such subordination. Mortgagee shall, however,
from time to time, after receipt of a Mortgagor Request therefor
(accompanied by a Mortgagor's Certificate stating that said
conditions have been satisfied) execute instruments in form and
substance reasonably satisfactory to the holder of the Superior
Mortgage confirming such subordination.
(c) Except as otherwise expressly permitted under this
Senior Guarantee Mortgage and the Senior Note Indenture
(including, without limitation, Article Eight of the Senior Note
Indenture), Mortgagor shall not sell, assign, lease or otherwise
transfer all or any portion of the Trust Estate or any interest
therein. Notwithstanding the foregoing, Mortgagor shall have the
right, at any time and from time to time, unless an Event of
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Default shall have occurred and be continuing, without any
release from or consent by Mortgagee, to grant interests in the
Owned Land in the nature of rights-of-way or easements, or other
rights or privileges in the nature of easements; provided, (i)
that none of the same will reduce or impair, in any material
respect, (A) the value or usefulness of the Trust Estate or any
part thereof or (B) the normal operation of the Casino Hotel in
accordance with all Legal Requirements and all Permits, (ii)
Mortgagor has delivered to Mortgagee a Mortgagor's Certificate,
dated not earlier than 10 days prior to the date of each such
grant, certifying that (A) no Event of Default has occurred and
is continuing and (B) the conditions set forth in this Section
5.3(c) for such grant have been fulfilled and (iii) Mortgagor has
delivered to Mortgagee a duplicate original of the instrument, if
any, pursuant to which such grant is to be made, and such other
instruments, certificates and opinions as Mortgagee may
reasonably request. The foregoing provisions of this Section
5.3(c) shall be self-operative and no further instrument shall be
required to evidence the consent of Mortgagee to the grant or
other conveyance of such rights-of-way or easements. Mortgagee
shall, however, from time to time, after receipt of a Mortgagor
Request therefor (accompanied by a Mortgagor's Certificate
stating that said conditions have been satisfied) execute
instruments in form and substance reasonably satisfactory to
Mortgagee confirming the permissibility of such grant or other
conveyance.
Section 5.4. Environmental.
Without limiting the generality of any other provision of
this Senior Guarantee Mortgage, Mortgagor covenants, represents
and warrants to Mortgagee as follows:
(a) Mortgagor shall comply with any and all federal, state
and local environmental legislation, rules, and regulations in
effect as of the date of this Senior Guarantee Mortgage and
subsequent thereto, including, without limitation, the Spill
Compensation and Control Act (N.J.S.A. 58:10-23. 11 et seq.)
(the"Spill Act"); the Industrial Site Recovery Act (N.J.S.A.
13:1K-6 et seq.) ("ISRA"); the Solid Waste Management Act
(N.J.S.A. 13:E-1 et seq.); the Resource, Conservation and
Recovery Act (42 U.S.C. Section 6901 et seq.) ("RCRA"); the
Comprehensive Environmental Response, Compensation and Liability
Act (42 U.S.C. Section 9601 et seq.) ("CERCLA") and such other
environmental legislation, rules and regulations, as are in or
may come into effect and apply to (i) Mortgagor and/or Mortgagee
with respect to the Premises or (ii) the transactions
contemplated hereby, and as to any occupants or users of the
collateral, whether as lessees, tenants, licensees or otherwise,
Mortgagor shall use its best efforts to cause same to comply with
said legislation, rules and regulations. Mortgagor agrees to pay
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all costs required in connection with compliance with the
foregoing legislation, rules and regulations.
(b) Mortgagor has not used in the past, nor shall Mortgagor
use in the future, the Premises for the purpose of refining,
producing, storing, handling, transferring, processing or
transporting "Hazardous Substances", as such term is defined in
ISRA, the Spill Act, CERCLA or the regulations relating thereto,
except that Mortgagor and its subsidiaries have used, and
Mortgagor may continue in the future to use, substances in the
operation and maintenance of the Premises, including, without
limitation, heating oil, gasoline and cleaning chemicals which
could be considered as "Hazardous Substances" under the preceding
definition.
(c) To the best of Mortgagor's knowledge, after due inquiry
and investigation, none of the real property owned, leased and/or
occupied by Mortgagor and located in the State of New Jersey,
including, without limitation, the Premises, has been or is now
being used as a "Major Facility" as such term is defined in
N.J.S.A. 58:10-23.11b(1). Mortgagor will not use the Premises in
the future as a "Major Facility".
(d) To the best of Mortgagor's knowledge, after due inquiry
and investigation, no lien has been attached to any revenues or
any real or personal property owned by Mortgagor or the Premises,
as a result of the Chief Executive of the New Jersey Spill
Compensation Fund expending monies from said fund to pay for
"Cleanup Costs", as such term is defined in N.J.S.A.
58:10-23.11b(d), arising from an intentional or unintentional
action or omission of Mortgagor or any previous owner and/or
operator of such real property.
(e) There is no asbestos or asbestos containing material on
the Premises. To the best of Mortgagor's knowledge, there are no
underground storage tanks located at the Premises, other than
those tanks previously disclosed to Mortgagee and which are
maintained in accordance with all material Legal Requirements.
Mortgagor has not installed or placed, or permitted to be
installed or placed, any underground storage tanks at or on the
Premises, other than those tanks previously disclosed to
Mortgagee and which are maintained in accordance with all
material Legal Requirements. Underground storage tanks shall
have the definition as set forth in N.J.S.A. 58:10A-22(p).
(f) Mortgagor has not received a summons, citation,
directive, letter, other written communication, or, to the best
of its knowledge, any oral communication, from the New Jersey
Department of Environmental Protection and Energy or from any
other person, firm or corporation concerning any intentional or
unintentional action or omission on Mortgagor's part resulting in
the releasing, spilling, leaking, pumping, pouring, emitting,
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emptying or dumping of "Hazardous Substances", as such term is
defined in N.J.S.A. 58:10-23.11b(k), into the waters or onto the
lands of the State of New Jersey, or into the waters outside the
jurisdiction of the State of New Jersey, in either case resulting
in damage to the lands, waters, fish, shellfish, wildlife, biota,
air and other resources owned, managed, held in trust or
otherwise controlled by the State of New Jersey.
(g) In connection with any purchase of the Premises or any
business or assets located thereon or any "closing, terminating
or transferring operations" of any "industrial establishment", as
that term is defined in ISRA, occurring on or after December 31,
1983, Mortgagor required that the owner and or operator of the
industrial establishment comply with the provisions of ECRA and
the owner and or operator did comply therewith.
(h) Upon the occurrence of an Event (as hereinafter
defined), Mortgagee shall have the right to have its consultants
perform a comprehensive environmental audit of the Premises.
Such audit shall be conducted by an environmental consultant
chosen by Mortgagee and may include a visual survey, a record
review, an area reconnaissance assessing the presence of
hazardous or toxic waste or substances, PCBs or storage tanks at
the Premises, an asbestos survey of the Premises, which may
include random sampling of the improvements and air quality
testing, and such further site assessments as Mortgagee may
reasonably require due to the results obtained from the
foregoing. Mortgagor grants Mortgagee, its agents, consultants
and contractors the right to enter the Premises for the purposes
of performing such studies and the cost of such studies shall be
due and payable by Mortgagor to Mortgagee upon demand and shall
be secured by the lien of this Senior Guarantee Mortgage.
Mortgagee shall direct the environmental consultant to use its
best efforts not to hinder Mortgagor's or any tenant's operations
when conducting such audit, sampling or inspections. For
purposes of this paragraph, the term "Event" shall mean (i) the
occurrence of any Event of Default, (ii) the issuance of any
summons, citation, directive or similar written notice from the
New Jersey Department of Environmental Protection and Energy or
from any other local, state or federal entity or from any other
person, firm or corporation concerning any alleged material
violation of any and all federal, state and local environmental
legislation, rules and regulations in effect as of the date of
this Senior Guarantee Mortgage and subsequent thereto or (iii)
the initiation of any legal action, suits or other legal or
administrative proceedings relating to or in connection with any
alleged violation of any and all federal, state and local
environmental legislation, rules and regulations in effect as of
the date of this Senior Guarantee Mortgage and subsequent
thereto.
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(i) If a lien shall be filed against the Premises by the
New Jersey Department of Environmental Protection and Energy,
pursuant to and in accordance with the provisions of N.J.S.A.
58:10-23.11f(f), as a result of the Chief Executive of the New
Jersey Spill Compensation Fund having expended monies from said
fund to pay for "Damages", as such term is defined in N.J.S.A.
58:10-23.11g, and/or "Cleanup and Removal-Costs", as such term is
defined in N.J.S.A. 58:10-23(b), arising from an intentional or
unintentional action or omission of Mortgagor resulting in the
releasing, spilling, pumping, pouring, emitting, emptying or
dumping of "Hazardous Substances", as such term is defined in
N.J.S.A. 58:10-23.11(b)k into waters of the State of New Jersey
or onto lands from which it might flow or drain into said waters,
then, unless there is a good faith basis for contesting such lien
and Mortgagor is so contesting such lien in accordance with
Section 5.9, Mortgagor shall, within 30 days from the date that
Mortgagor is given notice that the lien has been placed against
the Premises or within such shorter period of time if the State
of New Jersey has commenced steps to cause the Premises to be
sold pursuant to the lien, either (i) pay the claim and remove
the lien from the Premises, or (ii) furnish (A) a bond
satisfactory to a title company selected by Mortgagee (the "Title
Insurer") in the amount of the claim out of which the lien
arises, (B) to the Trustee, a cash deposit (which may be
disbursed by the Trustee in its sole discretion) in the amount of
the claim out of which the lien arises, or (C) other security
reasonably satisfactory to Mortgagee in an amount sufficient to
discharge the claim out of which the lien arises.
(j) Mortgagor shall use its best efforts to cause
compliance by all lessees with all applicable Legal Requirements
relating to environmental protection.
(k) Mortgagor shall promptly provide Mortgagee with copies
of all notices received by or prepared by Mortgagor in connection
with ISRA, CERCLA, the Spill Act, RCRA or any other environmental
law, rule or regulation relating to the Premises. For purposes
of this paragraph, the term "notice" shall mean any summons,
citation, directive, order, claim, pleading, letter, application,
filing, report, findings, declarations or other materials
pertinent to compliance of the Trust Estate and Mortgagor with
such environmental laws, rules or regulations.
(l) If this Senior Guarantee Mortgage is foreclosed,
Mortgagor shall deliver the Premises in compliance with all
applicable federal, state and local environmental laws,
ordinances, rules and regulations, including, without limitation,
ISRA.
(m) Without limiting the generality of Section 5.20,
Mortgagor agrees to defend, indemnify and save Mortgagee harmless
from and against any loss or liability, cost or expense
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(including, without limitation, reasonable attorneys' fees,
consultants' fees, disbursements and court costs) arising out of,
or incurred in connection with, Mortgagor's misrepresentation, or
failure promptly (but in no event to exceed the time period
permitted by law) to comply with and perform its obligations,
under this Section 5.4. The provisions of this subsection (m)
shall survive any transfer of the Premises, including a transfer
after a foreclosure of this Senior Guarantee Mortgage.
Section 5.5. Warranty of Leasehold Estate and Title.
Mortgagor represents and warrants that as of the date
hereof:
(a) Mortgagor is duly authorized under the laws of the
State of New Jersey and all other applicable laws to execute and
deliver this Senior Guarantee Mortgage, and all partnership
action on Mortgagor's part necessary for the valid execution and
delivery of this Senior Guarantee Mortgage has been duly and
effectively taken;
(b) Mortgagor is the lawful owner and is lawfully seized
and possessed of the Owned Land and all buildings and
improvements thereon, free and clear of all liens, charges or
encumbrances, other than the Senior Note Mortgage and the
Existing Encumbrances;
(c) Mortgagor is the holder of and has good and marketable
title to the leasehold interests and leasehold estates under all
existing Facility Leases, subject to no lien, encumbrance or
charge other than Existing Encumbrances;
(d) (i) each existing Facility Lease is a valid and
subsisting demise of the respective Leased Land for the term
therein set forth, (ii) there are no defaults under any Facility
Lease by any lessor or the lessee as to which written notice has
been given to or by the lessee, (iii) Mortgagor has delivered to
Mortgagee and the Trustee a true and correct copy of each
existing Facility Lease, and all modifications, amendments and
supplements thereto, and (iv) each existing Facility Lease is in
full force and effect and has not been modified, amended or
supplemented, except as described on Schedule 3;
(e) Mortgagor has good title to the Operating Assets,
subject to no lien, encumbrance or charge, other than Existing
Encumbrances;
(f) Mortgagor has good and lawful right and authority to
execute this Senior Guarantee Mortgage and to grant, bargain,
sell, alien, convey, assign, transfer, hypothecate, pledge,
mortgage and confirm the Trust Estate as provided herein
(including, without limitation, with respect to the Operating
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Assets and Facility Leases), without the consent of any third
party, other than governmental authorities and other secured
Persons but any applicable or necessary consent or approval of
any such governmental authority and other such Persons has been
given or waived in accordance with applicable law at or prior to
the execution and delivery of this Senior Guarantee Mortgage, and
this Senior Guarantee Mortgage constitutes a valid first mortgage
lien and deed of trust and first priority security interest in
the Trust Estate, subject only to Existing Encumbrances
(including, without limitation, the Superior Mortgage) and the
Senior Note Mortgage; and
(g) (i) all amounts due under the Superior Mortgage and the
instruments secured thereby have been paid to the extent they
were due and payable to the date hereof, and (ii) there is no
existing default under said Superior Mortgage or instruments, or
in the performance of any of the terms, covenants, conditions or
warranties therein on the part of Mortgagor to be performed and
observed thereunder as to which written notice has been given to
Mortgagor.
Mortgagor hereby does and shall forever warrant and defend
(a) the title to the Trust Estate (including, without limitation,
Mortgagor's leasehold estate under, and the lessee's interests
in, each existing Facility Lease) (subject to Permitted
Encumbrances) and (b) the pari passu lien of the Senior Note
Mortgage thereon (subject to Permitted Encumbrances other than
Restricted Encumbrances), against the claims and demands of all
persons whomsoever, at Mortgagor's sole cost and expense.
Section 5.6. After-Acquired Property;
Further Assurances; Recording.
All property, real, personal or mixed or any interest
therein (other than Excepted Property), of every kind and
description and wheresoever situate, which may be hereafter
acquired by Mortgagor (including, without limitation, fee title
to any Leased Land) shall immediately upon the acquisition
thereof by Mortgagor, and without any further mortgage,
conveyance or assignment, become subject to the lien of this
Senior Guarantee Mortgage as fully as though now owned by
Mortgagor and covered by the Granting Clauses. Nevertheless,
Mortgagor shall do, execute, acknowledge and deliver all and
every such further acts, conveyances, mortgages, financing
statements and assurances as Mortgagee shall require for
accomplishing the express purposes of this Senior Guarantee
Mortgage.
Mortgagor shall, as provided in Section 5.12, from time to
time subject to the lien of this Senior Guarantee Mortgage its
right, title and interest under all Leases.
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Mortgagor shall use reasonable efforts to insure that all
Operating Assets (other than Excepted Property) or any interest
therein hereafter acquired by Mortgagor shall be assignable to
Mortgagee, and to the extent such assignment to Mortgagee
requires the consent of any governmental authority or any other
Person, Mortgagor shall use reasonable efforts to obtain such
consent or a waiver thereof.
Mortgagor shall cause this instrument and all other
instruments of further assurance, including all financing
statements and continuation statements covering security
interests in personal property, to be promptly recorded,
registered and filed, and at all times to be kept recorded,
registered and filed, and shall execute and file such financing
statements and cause to be issued and filed such continuation
statements, all in such manner and in such places as may be
required by law or as requested by Mortgagee to fully preserve
and protect the rights of Mortgagee as a secured party under the
Uniform Commercial Code to all property comprising the Trust
Estate (to the extent a grant of a security interest therein is
governed by the Uniform Commercial Code) and to perfect, preserve
and protect the lien of this Senior Guarantee Mortgage as a valid
direct first mortgage lien of record and a valid first priority
security interest on the Trust Estate, subject only to Permitted
Encumbrances (including, without limitation, the Superior
Mortgage).
Mortgagor shall pay all filing or recording fees, and all
expenses incident to the execution and delivery of this Senior
Guarantee Mortgage, any financing statement or continuation
statement with respect to the personal property constituting part
of the Trust Estate, and any instrument of further assurance, and
all federal, state, county and municipal stamp taxes and other
taxes, duties, imposts, assessments and charges arising out of or
in connection with the execution and delivery of the Senior
Partnership Note, this Senior Guarantee Mortgage, any financing
statement or continuation statement with respect to the personal
property constituting part of the Trust Estate or any instrument
of further assurance.
Mortgagor shall furnish to Mortgagee promptly after the
acquisition hereafter by Mortgagor of any fee interest or
leasehold interest in real property having a fair market value
exceeding $500,000 (other than Excepted Property), (a) a
mortgagee policy of title insurance on the most recent form of
American Land Title Association standard loan policy, extended
coverage, which policy shall (i) contain all such endorsements
and affirmative insurance, to the extent reasonably applicable,
as is contained in the Original Policy and (ii) evidence that
title to such real property is subject to no liens or
encumbrances (other than Permitted Encumbrances) which would (A)
render title unmarketable or (B) violate any other provision of
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this Senior Guarantee Mortgage or the Senior Note Indenture, (b)
an as-built survey meeting the "Minimum Standard Detail
Requirements for ALTA/ACSM Land Title Surveys", certified within
60 days prior to the acquisition date by a surveyor licensed in
the State of New Jersey using the same form of certification as
that contained in the surveys of the Premises delivered to the
Trustee on the date of this Senior Guarantee Mortgage and (c) a
Mortgagor's Certificate certifying that the mortgagee policy of
title insurance and survey delivered pursuant to clauses (a) and
(b) comply, respectively, with the provisions of such clauses (a)
and (b). Upon delivery of all of the items required under this
paragraph, any liens or encumbrances on such real property shall
constitute Permitted Encumbrances hereunder.
Section 5.7. Payment of Taxes and Certain Claims;
Maintenance of Properties; Compliance with
Legal Requirements and Insurance Requirements.
Mortgagor shall:
(a) subject to the provisions of Section 5.8, pay or cause
to be paid before the date on which any fine, penalty, interest
or cost may be added for nonpayment (but no later than when the
same are payable by Mortgagor pursuant to any Superior Instrument
Requirement), all taxes (including, without limitation, real
estate taxes, personal or other property taxes and all sales,
value added, use and similar taxes), assessments (including,
without limitation, all assessments for public improvements or
benefits, whether or not commenced or completed prior to the date
hereof and whether or not to be completed prior to the
satisfaction of this Senior Guarantee Mortgage), water, sewer or
other rents, rates and charges, excises, levies, license fees,
permit fees, inspection fees and other authorization fees and
other charges, in each case whether general or special, ordinary
or extraordinary, foreseen or unforeseen, of every character
(including, without limitation, all interest, additions to tax
and penalties thereon), that may be assessed, levied, confirmed
or imposed on or in respect of or be a lien upon (i) the Trust
Estate (including, without limitation, the Leased Land) or any
part thereof or any rent therefrom or any estate right or
interest therein, or (ii) any acquisition, occupancy, use,
leasing, or possession of or activity conducted on the real
property or any part thereof included in the Trust Estate or any
gross receipts thereof or of the rent therefrom (all of the
foregoing being referred to collectively as "Impositions").
Notwithstanding the foregoing or any other provision of this
Senior Guarantee Mortgage, Mortgagor shall not be required to pay
any income, profits or revenue tax upon the income of Mortgagee,
the Trustee or the Holders nor any franchise, excise, corporate,
estate, inheritance, succession, capital levy or transfer tax of
Mortgagee, the Trustee or the Holders nor any interest, additions
to tax or penalties in respect thereof, unless such tax is
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imposed, levied or assessed in substitution for any Imposition
that Mortgagor is required to pay pursuant to this Section 5.7.
Mortgagor shall deliver to Mortgagee, at Mortgagee's request,
official receipts or other proof evidencing payments of any
Impositions in accordance with the requirements of this Section
5.7. Mortgagor shall not be entitled to any credit for taxes or
assessments paid against the Senior Notes;
(b) except for such obsolete property as Mortgagor may
dispose of or replace pursuant to Section 2.2, maintain and keep
all of Mortgagor's properties used or useful in the conduct of
Mortgagor's business, including, without limitation, the Casino
Hotel and all Tangible Personal Property, in such good repair,
working order and condition, except for reasonable wear and use,
and make or cause to be made all such needful and proper repairs,
renewals and replacements thereto consistent with the standards
of first-class casino and hotel complexes in Atlantic City, New
Jersey;
(c) occupy and continuously operate the Casino Hotel and
keep the Casino Hotel supplied with Tangible Personal Property,
all in a manner consistent with the standards of first-class
casino and hotel complexes in Atlantic City, New Jersey;
(d) subject to the provisions of Section 5.8, (i) comply
with all Legal Requirements and Insurance Requirements, whether
or not compliance therewith shall require structural changes in
the buildings and improvements included in the Trust Estate or
interfere with the use and enjoyment of the Trust Estate or any
part thereof, (ii) procure, maintain and comply with all Permits
required for (1) the use of the Casino as a gaming and gambling
facility, (2) the on-premises consumption of alcoholic beverages
at the Casino Hotel and (3) any other use of the Trust Estate or
any part thereof then being made, and for the proper erection,
installation, operation and maintenance of the improvements or
any part thereof, (iii) comply with all obligations of Mortgagor
under, and keep in full force and effect, all easements which in
any respect inure to the benefit of, or otherwise affect, the
Trust Estate or any part thereof, if the failure to comply with
the same would impair Mortgagee's security hereunder, and (iv)
without limiting the generality of clause (iii), comply with any
instruments of record at the time in force affecting the Trust
Estate or any part thereof, if the failure to comply with the
same would impair Mortgagee's security hereunder. Without
limiting the generality of the foregoing, Mortgagor represents
and warrants that at the time of the execution of this Senior
Guarantee Mortgage, Mortgagor is in compliance with the
requirements of clauses (i), (ii), (iii) and (iv) above; and
(e) in the event of the passage after the date of this
Senior Guarantee Mortgage of any law of the State of New Jersey,
or any other governmental entity, changing in any way the laws
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now in force for the taxation of mortgages, or debts secured
thereby, for federal, state or local purposes, or the manner of
the operation of any such taxes, so as to affect the interest of
Mortgagee, pay the full amount of such new or additional taxes.
Section 5.8. Permitted Contests.
Notwithstanding anything in this Senior Guarantee Mortgage
to the contrary, Mortgagor, at Mortgagor's expense, may contest
(after prior notice to Mortgagee) by appropriate legal
proceedings conducted in good faith and with due diligence, the
amount or validity or application, in whole or in part, of any
Imposition or lien therefor or any Legal Requirement or Insurance
Requirement or the application of any instrument of record
(including, without limitation, any Superior Instrument
Requirement) affecting the Trust Estate or any part thereof or
any claims of holders of F,F&E Financing Agreements, mechanics,
materialmen, suppliers, or vendors or lien therefor, and may
withhold payment of the same pending such proceedings if
permitted by law, or make payment under protest, or defer
compliance with any such Legal Requirement, any such Insurance
Requirement or the terms of any such instrument, and the same
shall not be a Default hereunder; provided, that (a) in the case
of any Impositions or lien therefor or any claims of mechanics,
materialmen, suppliers or vendors or lien therefor, such
proceedings shall suspend the collection thereof from each of
Mortgagor, Mortgagee, the Trustee, the Holders and the Trust
Estate, (b) neither the Trust Estate nor any interest therein
would be in any significant danger of being sold, forfeited, or
lost, (c) such action will not result in (i) the termination of
any Facility Lease or (ii) the holder of any Superior Mortgage
having a right to exercise any rights or remedies thereunder, (d)
in the case of a Legal Requirement, neither the Holders nor
Mortgagee shall be in any significant danger of any civil
liability or any danger of any criminal liability, and the
failure of Mortgagor to comply with such Legal Requirement shall
not affect the continuance in good standing of any Permit or
result in the suspension, termination, non-renewal or material
adverse modification of any Permit, and (e) in the case of an
Insurance Requirement, the failure of Mortgagor to comply
therewith shall not affect the validity of any insurance required
to be maintained by Mortgagor hereunder.
Section 5.9. Mechanics' and Other Liens.
Mortgagor shall cause to be removed, either by payment, or
bonding or otherwise, all claims and demands of mechanics,
materialmen, laborers, and others which, if unpaid, might result
in, or permit the creation of, a lien on the Premises and/or
Trust Estate or any part thereof, or on the revenues, rents,
issues, income and profits arising therefrom and in general shall
do or cause to be done everything necessary so that the lien
(46)
<PAGE>
hereof shall be fully preserved, at the cost of Mortgagor,
without expense to Mortgagee.
Section 5.10. To Insure.
(a) Mortgagor, at Mortgagor's expense, shall maintain with
Insurers:
(i) insurance with respect to Mortgagor's insurable
properties constituting a part of the Trust Estate against
loss or damage by fire, lightning, and other risks from time
to time included under "all-risk" policies and against loss
or damage by sprinkler leakage, water damage, collapse,
malicious mischief and explosion in respect of any steam and
pressure boilers and similar apparatus located on such
insurable properties, in amounts at all times sufficient to
prevent Mortgagor from becoming a coinsurer within the terms
of the applicable policies, but in any event such insurance
shall be maintained in not less than the greatest of the
following (the "Insurance Amount"): (A) 100% of the then
Full Insurable Value of such insurable properties,
determined from time to time (but not less frequently than
once in any 36 calendar months), by an Appraiser or Insurer,
(B) the then Outstanding Amount of Mortgage Debt, including
the Senior Partnership Note, or (C) the amount required to
be maintained pursuant to the Superior Instrument
Requirements;
(ii) war risk insurance as and when such insurance is
obtainable from the United States of America or any agency
thereof as promptly as reasonably practicable after the same
becomes so obtainable, in an amount not less than the
Insurance Amount, or, if such insurance cannot be obtained
in an amount not less than the Insurance Amount, in such
lesser amount as may then be so obtainable;
(iii) comprehensive general liability insurance,
including, without limitation, blanket contractual liability
coverage, broad form property damage, independent
contractor's coverage and personal injury coverage against
any and all claims arising out of or connected with the
possession, use,, leasing, operation or condition of such
insurable properties, in an amount not less than
$100,000,000 combined single limit coverage for personal
injury and property damage with respect to any one
occurrence, which may be under an umbrella policy. Anything
contained in this clause (iii) to the contrary
notwithstanding, the Superior Instrument Requirements with
respect to the kinds and amount of insurance described in
this clause (iii) shall be satisfied by Mortgagor;
(47)
<PAGE>
(iv) workers' compensation insurance to the extent
required by law;
(v) business interruption insurance covering not less
than 6 months of loss, provided that, at any time that
Mortgagor is renewing any policy for such insurance or
taking out any new or replacement policy for such insurance
covering a period of less than 12 months, Mortgagor shall
deliver to Mortgagee an Officers' Certificate certifying
that the period of coverage to be maintained by Mortgagor
under such policy is the maximum that can be maintained at
rates determined by Mortgagor to be reasonable for such
coverage;
(vi) to the extent available, flood insurance in an
amount not less than the Insurance Amount, or, if such
insurance cannot be obtained in an amount not less than the
Insurance Amount, such lesser amount as may then be so
obtainable but in no event less than $100,000,000; and
(vii) such other insurance with respect to such
insurable properties against loss or damage of the kinds (A)
from time to time customarily insured against by persons
owning or using first-class casino and hotel complexes in
Atlantic City, New Jersey and (B) required to be maintained
pursuant to any Superior Instrument Requirements.
Notwithstanding the foregoing, to the extent not violative
of any Superior Instrument Requirements, (A) Mortgagor may
maintain a deductible with respect to the insurance policies
described in clauses (i), (ii), (vi) and (vii) in an amount not
to exceed $250,000, (B) Mortgagor may maintain a deductible with
respect to the insurance policies described in clause (iii) in an
amount not to exceed $500,000, and (C) Mortgagor may maintain a
deductible with respect to the insurance policies described in
clause (v) in an amount not to exceed $1,000,000.
(b) (i) Each policy of insurance maintained by Mortgagor
pursuant to Section 5.10(a) shall, (A) except in the case of
workers' compensation insurance, name Mortgagor as an insured and
shall name as additional insurers (1) Mortgagee and (2) to the
extent required by the Superior Instrument Requirements, the
lessors under any Facility Leases and the holders of the Superior
Mortgages, (B) provide that all insurance proceeds for losses,
except in the case of comprehensive general liability insurance
and workers' compensation insurance or as otherwise provided in
Subsections (d), (e) and (f) of this Section 5.10, be payable
solely to Mortgagee (or if such insurance proceeds are for losses
sustained solely to property covered by a Superior Mortgage, such
other party as is required to receive such proceeds under a
Superior Mortgage), (C) include effective waivers (whether under
the terms of any such policy or otherwise) by the insurer of all
(48)
<PAGE>
claims for insurance premiums against all loss payees and named
insurers (other than Mortgagor) and all rights of subrogation
against any named insured, (D) except in the case of
comprehensive general liability and workers' compensation
insurance, provide that any losses shall be payable
notwithstanding (1) any act, failure to act, negligence of, or
violation or breach of warranties, declarations or conditions
contained in such policy by Mortgagor or Mortgagee or any other
named insured or loss payee (including, without limitation, (x)
the lessors under the Facility Leases with respect to any Leased
Facilities and (y) the holder of any Superior Mortgage with
respect to the property encumbered thereby), (2) the occupation
or use of the insurable properties for purposes more hazardous
than permitted by the terms of the policy, (3) any foreclosure or
other proceeding or notice of sale relating to the insurable
properties or (4) any change in the title to or ownership or
possession of the insurable properties, (E) contain a
non-contributory mortgagee clause in favor of Mortgagee, and (F)
provide that if all or any part of such policy is cancelled,
terminated or expires, the insurer will forthwith give notice
thereof to each named insured and loss payee and that no
cancellation, non-renewal, reduction in amount or material change
in coverage thereof shall be effective until at least 30 days
after receipt by each named insured and loss payee of written
notice thereof.
(ii) Mortgagor may effect the insurance required under this
Section 5.10 under blanket and/or umbrella policies covering
properties owned or leased by Affiliates of Mortgagor; provided,
that (A) such policies otherwise comply with this Senior
Guarantee Mortgage, (B) except with respect to flood insurance
and earthquake insurance, provide that the amount of coverage
afforded thereunder with respect to the Trust Estate shall not be
reduced by claims thereunder against such other properties and
(C) in the case of flood insurance provide that the amount of
coverage afforded thereunder with respect to the Trust Estate
shall not be reduced below $100,000,000 by reason of claims
thereunder against such other properties.
(c) Mortgagor shall deliver to Mortgagee duplicate
originals of all insurance policies that Mortgagor is required to
maintain pursuant to this Section 5.10. Mortgagee shall not be
responsible for effecting or renewing any insurance or for the
responsibility or solvency of the insurers.
(d) Mortgagor shall give written notice to Mortgagee
immediately upon obtaining knowledge of any Casualty which (i)
results in damage, loss or destruction in an amount in excess of
$5,000,000 to any buildings or improvements on the Premises
and/or any Tangible Personal Property or (ii) pursuant to any
Superior Instrument Requirement, would require the deposit of
insurance proceeds with the Depositary, or action or proceeding
(49)
<PAGE>
with respect thereto. Whenever the Superior Instrument
Requirements require or permit the selection of the Depositary by
Mortgagor, Mortgagor shall select the Insurance Trustee as the
Depositary. Within 30 days after any Casualty which results in
any damage, loss or destruction in an amount in excess of
$10,000,000 to any buildings or improvements on the Premises
and/or any Tangible Personal Property, Mortgagor shall deliver to
Mortgagee a certificate of an Architect stating whether, in such
Architect's opinion, applicable Legal Requirements permit the
Restoration of said buildings and improvements for the same uses
and to the same size and quality in all material respects, as
existed immediately prior to the Casualty (and if said
certificate states that Legal Requirements do not permit such
Restoration, said certificate shall describe the manner closest
approximating such criteria to which the buildings and
improvements could be so restored and shall be accompanied by a
Certificate Of Appraised Value dated not more than 10 days prior
to delivery setting forth the Appraised Value immediately prior
to the Casualty and the estimated Appraised Value immediately
after the Restoration). If Mortgagor is required to deliver such
Certificates of Appraised Value and if based on such Certificates
of Appraised Value immediately after Restoration, (i) the
aggregate Outstanding Amount of Indebtedness of the Mortgagor
immediately after such Restoration shall exceed the greater of
(A) 80% of the Appraised Value immediately after such Restoration
or (B) the quotient of the Outstanding Amount of Indebtedness of
the Mortgagor immediately prior to such Casualty divided by the
Appraised Value immediately prior to the Casualty multiplied by
the Appraised Value immediately after such Restoration, or (ii)
applicable Legal Requirements do not permit the Restoration of
the Casino Hotel for use as a casino and hotel complex, then, in
either of such events, the proceeds of any insurance shall not be
applied to Restoration but shall instead be paid and delivered to
Mortgagee to the extent of the then Outstanding Amount of the
Senior Partnership Note and any other interest or other sums due
hereunder or thereunder to be applied to the satisfaction of this
Senior Guarantee Mortgage to the extent proceeds are available
for such purpose and provided that no additional sums are due to
the Trustee or the Holders under the Senior Notes or the Senior
Note Indenture, the balance of any net insurance proceeds shall
be paid to Mortgagor.
(e) Subject to the provisions of Subsection 5.10(d), if a
Casualty occurs, the following shall apply:
(i) If the cost of Restoration is less than
$10,000,000, the net insurance proceeds shall be paid by
Mortgagee to Mortgagor (unless the Superior Instrument
Requirements provide that the same shall be paid to the
Depositary).
(50)
<PAGE>
(ii) If the cost of Restoration is $10,000,000 or more
or if the Superior Instrument Requirements provide that the
same shall be paid to the Depositary, the net insurance
proceeds shall be paid by Mortgagee to the Insurance Trustee
(or other Depositary required by the Superior Instrument
Requirements, provided that such Depositary holds such
proceeds in trust for purposes of paying the costs of
Restoration).
(iii) Mortgagor shall commence with reasonable
promptness under the circumstances and thereafter with due
diligence proceed to perform and complete in a good and
workmanlike manner the restoration, repair, replacement or
rebuilding of the damage or destruction resulting from the
Casualty (all such restoration, repair, replacement and
rebuilding following a Casualty or a Taking are referred to
as "Restoration") in accordance with the plans and
specifications submitted to the Insurance Trustee, in
conformance with all Legal Requirements and Superior
Instrument Requirements, and in accordance with the further
provisions of this Subsection (e), regardless of the extent
of any such Casualty and whether or not net insurance
proceeds, if any, shall be available or, if available, shall
be sufficient, for the purpose of the Restoration. All
Restoration work shall be performed in accordance with the
applicable provisions of Section 5.12 and in conformance
with all Superior Instrument Requirements, Legal
Requirements and Insurance Requirements and, prior to
commencing any Restoration, Mortgagor shall obtain all
Permits necessary in connection therewith, and shall obtain,
and keep in full force and effect until the completion of
such Restoration, such additional insurance as the Insurance
Trustee and Superior Instrument Requirements may require.
The plans and specifications for the Restoration shall be
accompanied by a Mortgagor's Certificate and an Opinion of
Counsel to the effect that upon the completion of the
Restoration pursuant to the plans and specifications, the
Premises and all buildings and improvements thereon will
comply with all Superior Instrument Requirements, Legal
Requirements and Insurance Requirements.
(iv) Any insurance proceeds which Mortgagor receives
shall be held by Mortgagor in trust for the purpose of
paying the cost of the Restoration, except as otherwise
provided herein.
(v) Any net insurance proceeds that the Insurance
Trustee holds pursuant to this Subsection (e), shall be
deposited in an interest-bearing investment reasonably
designated by Mortgagor (to the extent Mortgagor is
permitted to designate such investment under the Superior
Instrument Requirements) (and the interest thereon shall be
(51)
<PAGE>
added to such proceeds) and shall be paid by the Insurance
Trustee to reimburse Mortgagor for, or to make payment for, the
Restoration, after the Insurance Trustee deducts therefrom the
amount of any reasonable costs and expenses incurred in
connection with the performance of its obligations under this
Section 5.10. The Insurance Trustee shall make such payments not
more frequently than once every 30 days upon the written request
of Mortgagor (unless more frequent payments are required by
Superior Instrument Requirements), by paying to Mortgagor or the
persons named in the certificate described in clause (vi) of this
Subsection (e) the respective amounts stated in such certificate
from time to time as the Restoration progresses, provided
Mortgagor has complied with the requirements of this Subsection
(e) and such payment is permitted by any applicable Superior
Instrument Requirements. Mortgagor's request shall be
accompanied by (A) the certificate described in clause (vi) of
this Subsection (e) and (B) a title company or official search,
or other evidence reasonably acceptable to the Insurance Trustee,
showing that there have not been filed with respect to the
Premises, any vendor's, contractor's, mechanic's, laborer's or
materialman's statutory or similar lien which has not been
discharged of record (or bonded against or secured by other
security) or any other encumbrance irrespective of its priority
(other than Permitted Encumbrances).
(vi) The certificate required by clause (v) of this
Subsection (e) shall (A) be a Mortgagor's Certificate,
countersigned by the Architect in charge of the Restoration
with respect to the matters described in (1) and (5) below,
(B) be dated not more than 10 days prior to such request and
(C) set forth (in addition to any other requirements
contained in any applicable Superior Instrument
Requirements) that:
(1) all of the Restoration theretofore performed
is in substantial compliance with the plans and
specifications theretofore submitted to the Insurance
Trustee and in compliance with all Superior Instrument
Requirements, Legal Requirements and Insurance
Requirements;
(2) the sum then requested either has been paid
by Mortgagor or is justly due to contractors,
subcontractors, materialmen, engineers, architects or
other persons who have rendered services or furnished
or contracted to deliver materials for the Restoration
therein specified, and the names and addresses of such
persons, a brief description of such services and
materials and the several amounts so paid or due to
each of said persons in respect thereof;
(52)
<PAGE>
(3) no part of the amount requested has been or
is the basis in any previous or then pending request
for the withdrawal of net insurance proceeds, and that
the sum then requested does not exceed the value of the
services and materials described in the certificate;
(4) except for the amount, if any, stated
pursuant to subclause (2) of this clause (vi) in such
certificate to be due for services or materials, and
except for amounts in dispute and/or customary
retainages, there is no outstanding indebtedness known
to the person signing such certificate, after due
inquiry, which is then due for labor, wages, materials,
supplies or services in connection with such
Restoration; and
(5) the remaining cost, as estimated by the
persons signing such certificate, of the Restoration in
order to complete the same does not exceed the net
insurance proceeds remaining in the hands of Insurance
Trustee after payment of the sum requested in such
certificate or if such estimated cost does exceed such
insurance proceeds such certificate shall state the
amount of any such deficiency. If the certificate
states that such deficiency will exist, Mortgagor shall
deliver the amount of such deficiency in cash or cash
equivalent to the Insurance Trustee simultaneously with
the delivery of such certificate, which amount shall be
deemed insurance proceeds for purposes of this Section
5.10(e).
(vii) If net insurance proceeds shall be insufficient
to pay the entire cost of the Restoration, then, after
completion of the Restoration, Mortgagor shall pay the
deficiency. If all or any part of the net insurance
proceeds are not used for the Restoration in accordance with
this Subsection (e) (because such proceeds exceed the amount
required to complete the Restoration), then upon completion
of the Restoration in accordance with this Subsection (e),
such amount not so used, if held by the Insurance Trustee,
shall be paid to Mortgagor (if permitted by Superior
Instrument Requirements).
(f) Mortgagor shall not take out separate insurance,
concurrent in form or contributing in the event of loss with that
required to be maintained pursuant to this Section 5.10, unless
the same is permitted by Superior Instrument Requirements.
Mortgagor shall immediately notify Mortgagee whenever any such
separate insurance is taken out and shall promptly deliver to
Mortgagee a duplicate original of the policy of such insurance, a
copy thereof certified by the insurer or a certificate thereof.
(53)
<PAGE>
Provided that no Event of Default has occurred and is continuing,
all net business interruption insurance proceeds shall be paid to
Mortgagor, to be segregated from the other funds of Mortgagor and
held in trust by Mortgagor for the following purposes and in the
following order of priority: (i) for the payment of Impositions
and amounts due under the Facility Leases and Superior Mortgage,
(ii) for debt service for the estimated period of Restoration
(for purposes of this Subsection 5.10(f), interest and principal
payments due on any payment date under the Senior Partnership
Note will be deemed to accrue in equal daily installments
beginning the day after the immediately preceding payment date
and ending on such payment date), and (iii) for any other expense
incurred in connection with the operation or business of the
Casino Hotel.
(g) Insurance claims by reason of damage or destruction to
any portion of the Trust Estate may be adjusted by Mortgagor, but
Mortgagee shall have the right (but not the obligation) to join
Mortgagor in adjusting, and approving the adjustment of, any such
loss except in the event of a loss where the amount of insurance
reasonably anticipated to be received with respect to such loss
is less than $5,000,000, and Mortgagor shall assist Mortgagee in
any such adjustment at the request of Mortgagee. If Mortgagee at
its election as aforesaid joins Mortgagor in any adjustment
process, then Mortgagee's approval of the adjustment shall not be
unreasonably withheld.
(h) Notwithstanding anything contained herein to the
contrary, if an Event of Default shall have occurred and be
continuing, Mortgagee may, at its option, (A) refrain from paying
to Mortgagor or the Insurance Trustee any net insurance proceeds
or (B) instruct the Insurance Trustee to pay to Mortgagee any
insurance proceeds then held by the Insurance Trustee, as the
case may be.
Section 5.11. Limitations on Building Demolition,
Alterations, Improvements and New Construction.
Mortgagor shall not authorize, permit or make any
demolition, alteration or improvement of any building, structure
or other improvements included in the Trust Estate or any new
construction on any part of the Trust Estate, except in
conformity with and subject to the limitations hereinafter in
this Section 5.11 set forth and set forth in the Senior Note
Indenture.
Unless an Event of Default shall have occurred and be
continuing, Mortgagor shall have the right at all times to make
or permit such demolition, alterations, improvements or new
construction, structural or otherwise (herein sometimes called
collectively "Alterations" and each, individually, an
(54)
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"Alteration"), of the Trust Estate, to be made in all cases
subject to each of the following conditions:
(a) No Alteration shall be undertaken or carried out except
in conformity with all Superior Instrument Requirements, Legal
Requirements and Insurance Requirements.
(b) If the estimated cost of any Alteration, together with
other Alterations that constitute a single construction plan or
project (whether or not accomplished in several stages or
procedures), exceeds $5,000,000, the building or buildings,
structures or other improvements as so improved or altered, upon
the completion of the work, shall be of a value not less than the
value of such building or buildings, structures or other
improvements immediately prior to the making of such Alteration.
(c) Any Alteration which is structural in nature or
involves an estimated cost of more than $5,000,000 shall be
conducted under the supervision of an Architect, and no such
Alteration shall be undertaken until 10 days after there shall
have been filed with Mortgagee detailed plans and specifications
and cost estimates therefor, prepared and approved in writing by
such Architect and accompanied by a certificate of such Architect
stating that such plans and specifications conform to all
applicable provisions of this Section 5.11.
(d) No Alteration involving an estimated cost of more than
$5,000,000 shall be undertaken until Mortgagor has furnished to
Mortgagee, at Mortgagor's sole cost and expense, a surety bond or
bonds, covering performance, and labor and material payments with
respect to the work to be so performed, naming Mortgagee as
obligee, issued by a responsible surety company, authorized to do
business in the State of New Jersey, in a form generally and
customarily used by such surety in an amount equal to the
estimated cost of construction of the work covered by the plans
and specifications therefor, guaranteeing the performance and
completion of such construction, substantially in conformity with
the said plans and specifications and within a reasonable time,
subject to delays by fire, strikes, lock-out, acts of God,
inability to obtain labor or materials, governmental
restrictions, enemy action, civil commotion or unavoidable
Casualty or other similar causes beyond the control of Mortgagor,
free and clear of all liens, claims and liabilities for the cost
of such Alterations. If such surety bond or bonds shall be
unobtainable Mortgagor shall deliver to Mortgagee security by
cash, letter of credit or other guarantee, affording
substantially the same protection as would such bond or bonds.
(e) All work done in connection with any Alterations shall
be done promptly and in good and workmanlike manner. The work in
connection with any Alteration shall be prosecuted with
reasonable dispatch, delays due to fire, strikes, lock-outs, acts
(55)
<PAGE>
of God, inability to obtain labor or materials, governmental
restrictions, enemy action, civil commotion or unavoidable
Casualty or similar causes beyond the control of Mortgagor
excepted.
(f) If the estimated cost of Alterations exceeds
$5,000,000, Mortgagor shall have delivered to Mortgagee (i) prior
to the commencement of such Alterations, copies of all Permits
required for the commencement of such work together with a
certificate of the Architect or an Opinion of Counsel to the
effect that all Permits required for the commencement of such
Alterations have been obtained; and (ii) within a reasonable
period of time after the completion of the Alterations, copies of
all Permits required in connection with the completion thereof,
together with either an Opinion of Counsel or a certificate of
the Architect that all such Permits have been so obtained by
Mortgagor and that Mortgagor has complied with all the
requirements of this Section 5.11.
(g) No Alterations of any kind shall be made which shall
change the use or reduce the size or quality of any building,
structure or other improvements in any material respect or which
shall change the use of the Casino Hotel from its use as a gaming
and hotel facility.
(h) No Alterations costing in excess of $5,000,000,
together with other Alterations that constitute a single
construction plan or project (whether or not accomplished in
several stages or procedures), shall be made if such Alterations
are not expected to be completed at least 120 days prior to the
Stated Maturity of the Senior Partnership Note (except if such
Alterations are required in order to comply with Legal
Requirements or Superior Instrument Requirements).
(i) Mortgagor shall maintain at all times during the
performance of Alterations, in addition to any insurance required
to be maintained under Section 5.11 hereof, appropriate workers'
compensation insurance covering all persons employed for such
Alterations to the extent required by applicable law, and
comprehensive general liability insurance expressly covering the
additional hazards due to such Alterations. Each such policy of
insurance shall comply with the provisions of Section 5.10(b),
and Mortgagor shall comply with Subsections (c), (d), (e), (f),
(g) and (h) of Section 5.10 in connection with all such
insurance.
Section 5.12. Leases.
Mortgagor shall not:
(a) lease the Trust Estate substantially as an entirety to
any Person (except in accordance with the provisions of Article
(56)
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Eight of the Senior Note Indenture), nor shall Mortgagor lease
either the Casino Hotel or the Casino or the Hotel or any parking
facilities substantially as an entirety to any Person;
(b) enter into any Lease, or renew, modify, extend,
terminate, or amend any Lease, except in the ordinary course of
business of operating the Casino Hotel;
(c) receive or collect, or permit the receipt or collection
of, any rental payments under any Lease more than one month in
advance of the respective periods in respect of which they are to
accrue, except that, in connection with the execution and
delivery of any Lease or of any amendment to any Lease, rental
payments thereunder may be collected and received in advance in
an amount not in excess of three months' rent and/or a security
deposit may be required thereunder in an amount not exceeding one
year's rent;
(d) collaterally assign, transfer or hypothecate (other
than to Mortgagee hereunder, to the holder of the Senior Note
Mortgage, or to the holder of the Superior Mortgage, but in each
case only with respect to the property secured by such mortgage)
(i) any rental payment under any Lease whether then due or to
accrue in the future, (ii) the interest of Mortgagor as landlord
under any Lease or (iii) the rents, issues or profits of the
Trust Estate;
(e) after the date hereof, enter into any Lease, or renew
any Lease, unless such Lease contains terms to the effect as
follows:
(i) the Lease and the rights of the tenants thereunder
shall be subject and subordinate to the rights of Mortgagee
under this Senior Guarantee Mortgage and the holders of the
Superior Mortgage,
(ii) the Lease may be assigned by the landlord
thereunder to Mortgagee, and
(iii) the rights and remedies of the tenant in respect
of any obligations of the landlord thereunder shall be
nonrecourse as to any assets of the landlord other than its
equity in the building in which the leased premises are
located or the proceeds thereof; or
(f) modify any Lease with respect to the matters described
in clauses (i) through (iii) of paragraph (e).
If Mortgagor enters into a Lease (other than with an
Affiliate of Mortgagor) for a term of not less than 3 years,
Mortgagee shall deliver a non-disturbance and attornment
agreement substantially in the form of Schedule 7 hereto,
(57)
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following receipt of a certificate of a leasing broker (who is
not an Affiliate of Mortgagor or the broker involved in such
transaction) experienced with respect to leases of commercial
space in the Atlantic City area stating that the rent under the
Lease throughout the term thereof is not less than fair market
rent and the other terms of the Lease are fair and reasonable in
the commercial leasing market. Mortgagor shall, upon demand,
reimburse Mortgagee for any costs and expenses (including
reasonable attorneys' fees and disbursements) incurred by
Mortgagee in connection with the preparation, review and delivery
of such non-disturbance and attornment agreements.
Promptly after the execution and delivery hereof, Mortgagor
shall cause the lessee under each Lease now in effect, and
promptly after each Lease is executed or becomes effective after
the date of the execution and delivery hereof, Mortgagor shall
cause the lessee under each such Lease, to be duly notified in
writing (unless the substance and effect of such notice shall be
contained in such Lease) of the subjection of the owner's
interest, as lessor, in and to such Lease to the lien of this
Senior Guarantee Mortgage and of the name and address of
Mortgagee. Each such notice shall state that the lease of such
lessee is a Lease as herein defined. If a new Mortgagee is at
any time appointed hereunder or the address of Mortgagee shall at
any time be changed, Mortgagor shall cause each lessee under each
Lease to be promptly notified in writing of the name and address
of such new Mortgagee or the new address of Mortgagee. Mortgagor
shall use reasonable efforts (but shall not be obligated to incur
any expenditure other than de minimis amounts) to obtain from
each lessee under each Lease to whom any notice is sent pursuant
to this paragraph an acknowledgment of receipt of such notice,
and Mortgagor shall promptly deliver to Mortgagee,, upon request,
a copy of each such acknowledgment of receipt which it is able to
obtain. Mortgagee shall not be responsible for securing or
causing Mortgagor to secure any such acknowledgment.
Section 5.13. Compliance Certificates.
Mortgagor shall deliver to Mortgagee, within 120 days after
the end of each fiscal year of Mortgagor, a Mortgagor's
Certificate stating that
(a) a review of the activities of Mortgagor during such
year and of performance under this Senior Guarantee Mortgage has
been made under the signer's supervision, and
(b) to the best of each signer's knowledge, based on such
review, Mortgagor has fulfilled all of Mortgagor's obligations
under this Senior Guarantee Mortgage throughout such year, or, if
there has been a default in the fulfillment of any such
obligation, specifying each such default known to him and the
nature and status thereof.
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Promptly after Mortgagor may reasonably be deemed to have
knowledge of a default hereunder, Mortgagor shall deliver to
Mortgagee a notice specifying the nature and period of existence
thereof and the action Mortgagor is taking and proposes to take
with respect thereto.
Section 5.14. To Keep Books; Inspection by Mortgagee.
Mortgagor will keep proper books of record and account, in
which full and correct entries shall be made of all dealings or
transactions of or in relation to the properties, business and
affairs of Mortgagor in accordance with generally accepted
accounting principles consistently applied. Said books shall be
maintained in an office located either in Atlantic City, New
Jersey or in the Borough of Manhattan, City of New York, State of
New York. Mortgagor shall at any and all times, upon request of
Mortgagee and at the expense of Mortgagor, permit Mortgagee and
its representatives to inspect the Casino Hotel and any other
buildings, structures and improvements now or hereafter located
on the Land and the books of account, records, reports and other
papers of Mortgagor, and to make copies and extracts therefrom,
and will afford and procure a reasonable opportunity to make any
such inspection (provided, that any such inspection shall not
unreasonably interfere with the business operations of
Mortgagor), and Mortgagor will furnish to Mortgagee any and all
information as Mortgagee may reasonably request, with respect to
the performance by Mortgagor of its covenants in this Senior
Guarantee Mortgage.
Section 5.15. Advances by Mortgagee.
If Mortgagor shall fail to perform any of the covenants,
terms, provisions or conditions contained in this Senior
Guarantee Mortgage and such failure shall continue for 10 days
following notice thereof given by Mortgagee (or at any time,
without notice, in case of emergency), Mortgagee may (but is not
obligated to), at any time and from time to time, take any action
or make advances, to effect performance of any such covenant,
term, provision or condition on behalf of Mortgagor; and all
moneys so used, paid or advanced by Mortgagee and all reasonable
costs and expenses incurred by Mortgagee in connection therewith,
together with interest on all of the same at the rate of interest
set forth in the Senior Partnership Note, shall be immediately
due and payable by Mortgagor to Mortgagee and all such moneys,
costs and expenses shall be secured by the lien of this Senior
Guarantee Mortgage prior to the Senior Partnership Note. No such
advance or payment by Mortgagee shall relieve Mortgagor from any
default hereunder or impair any right or remedy of Mortgagee.
Section 5.16. Waiver of Stay, Extension or Usury Laws.
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Mortgagor covenants (to the extent that it may lawfully do
so) that it will not at any time insist upon, or plead, or in any
manner whatsoever claim or take the benefit or advantage of, any
usury, stay or extension law or any other law which would
prohibit or forgive Mortgagor from paying all or any portion of
the obligations secured by this Senior Guarantee Mortgage,
wherever enacted, now or at any time hereafter in force, or which
may otherwise affect the covenants or the performance of this
Senior Guarantee Mortgage; and Mortgagor (to the extent that it
may lawfully do so) hereby expressly waives all benefit or
advantage of any such law, and covenants that it shall not
hinder, delay or impede the execution of any power herein granted
to Mortgagee, but shall suffer and permit the execution of every
such power as though no such law had been enacted.
Section 5.17. Eminent Domain.
(a) Mortgagor shall notify Mortgagee immediately upon
obtaining knowledge of any Taking affecting the Trust Estate or
any part thereof. If the Taking is a Taking of less than the
whole or substantially all of the Premises but (i) is estimated
to result in an award of more than $10,000,000 or (ii) the Taking
will interfere with or adversely affect the operation of the
Casino Hotel (other than any portion thereof consisting solely of
unimproved, paved or unpaved surface parking) other than to a de
minimis extent, then within 30 days after such Taking, Mortgagor
shall deliver to Mortgagee a certificate of an Architect stating
whether, in such Architect's opinion, applicable Legal
Requirements permit the Restoration of any buildings and
improvements for the same uses and to the same size and quality
in all material respects as existed immediately prior to the
Taking (and if said certificate states that Legal Requirements do
not permit such Restoration, said certificate shall describe the
manner closest approximating such criteria to which the buildings
and improvements could be so restored and shall be accompanied by
a Certificate of Appraised Value dated not more than 10 days
prior to delivery setting forth the Appraised Value immediately
prior to the Taking and the estimated Appraised Value immediately
after the permitted Restoration). If Mortgagor is required to
deliver such Certificate of Appraised value and if based on such
Certificate of Appraised Value immediately after Restoration, (i)
the Outstanding Amount of Indebtedness of the Partnership
immediately after such Restoration shall exceed the greater of
(A) 80% of the Appraised Value immediately after such Restoration
or (B) the quotient of the Outstanding Amount of Indebtedness of
the Partnership immediately prior to such Taking divided by the
Appraised Value immediately prior to the Taking multiplied by the
Appraised Value immediately after such Restoration, or (ii)
applicable Legal Requirements do not permit the Restoration of
the Casino Hotel for use as a casino and hotel complex, then, in
any of such events, the Taking shall be deemed a Taking of "the
whole or substantially all of the Premises." The Taking shall be
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deemed a Taking of "less than the whole or substantially all of
the Premises" if Mortgagor is not required to deliver a
Certificate Of Appraised Value or if, at the time of delivery of
such Certificate, neither of the tests set forth in clauses (i)
and (ii) is met.
(b) If at any time there shall occur a Taking of less than
the whole or substantially all of the Premises and the award or
awards resulting therefrom payable to Mortgagor (and not to any
lessor under any Facility Lease or the holder of any Superior
Mortgage) (after there shall have been first deducted the fees
and expenses incurred in connection with the termination,
settlement and collection of such award or awards, including,
without limitation, reasonable counsel fees and expenses,
hereinafter referred to as "Settlement Costs") (i) shall be less
than $10,000,000 (except to the extent that the Insurance Trustee
or a Depositary is required to hold such amount pursuant to a
Superior Instrument Requirement), the entire amount of such award
shall be paid to Mortgagor; and (ii) if such award is $10,000,000
or more, the entire amount of such award shall be paid to the
Insurance Trustee (or other Depositary required by a Superior
Mortgage, provided that such Depositary holds such award in trust
for purposes of paying the cost of Restoration). In either
event, such awards shall be applied to the cost of Restoration of
the Trust Estate as nearly as practicable to their uses, value
and condition immediately prior to the Taking (except to the
extent otherwise provided by Superior Instrument Requirements).
Mortgagor shall promptly commence and with due diligence perform
the Restoration in accordance with clauses (iii), (iv) and (vii)
of Subsection 5.10(e) (after substituting the words "Taking" for
"Casualty" and "award" for "net insurance proceeds"), at no cost
to Mortgagee. All claims or suits arising out of any Taking may
be settled by Mortgagor, except that Mortgagee shall have the
right (but not the obligation) to participate in such claim or
suit, and to approve settlement thereof (and notwithstanding
anything in the Facility Leases to the contrary, Mortgagor shall
not agree to any settlement or compromise of the amount of any
such claim or suit, except a claim or suit where the amount
reasonably anticipated to be received by Mortgagor is less than
$5,000,000). If Mortgagee at its election as aforesaid joins
such claim or suit, Mortgagee's approval of such settlement shall
not be unreasonably withheld. The Insurance Trustee shall
promptly pay such sums as are received by it from such Taking
from time to time in accordance with the procedures set forth in
clauses (v) and (vi) of Subsection 5.10(e) (after substituting
the words "Taking" for "Casualty" and "award" for "net insurance
proceeds").
(c) If at any time there shall occur a Taking of the whole
or substantially all of the Premises, then the award payable to
Mortgagor shall not be applied to Restoration but shall instead
be paid and delivered to the Trustee (subject to the rights of
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the lessors under any Facility Leases and the holders of any
Superior Mortgages) to the extent of the then Outstanding Amount
of the Senior Partnership Note and any other interest or other
sums due hereunder or thereunder to be applied to the
satisfaction of this Senior Guarantee Mortgage to the extent
proceeds are available for such purpose and provided that no
additional sums are due the Trustee or the Holders under the
Mortgage Senior Partnership Notes or the Senior Note Indenture,
the balance of any award shall be paid to Mortgagor.
(d) Notwithstanding anything contained herein to the
contrary, if an Event of Default shall have occurred and is
continuing, Mortgagee may, at its option, (i) refrain from paying
to Mortgagor or the Insurance Trustee any award or (ii) instruct
the Insurance Trustee to pay to Mortgagee any award then held by
the Insurance Trustee, as the case may be.
Section 5.18. Facility Leases.
(a) Mortgagor shall do or cause to be done all things
necessary to preserve and keep unimpaired the rights of
Mortgagor, as lessee under all Facility Leases, and, to prevent
any termination, surrender, cancellation, forfeiture or
impairment of any thereof. Mortgagor shall at all times fully
perform and comply with all agreements, covenants, terms and
conditions imposed upon or assumed by it as lessee under each of
the Facility Leases (including, without limitation, the covenant
to pay rent and all taxes, assessments and other charges
mentioned therein) prior to the expiration of any notice and/or
cure period provided in each such Facility Lease. Upon receipt
by Mortgagee from a Lessor of any written notice of default by
the lessee thereunder, Mortgagee may rely thereon and take any
action Mortgagee deems necessary in its sole discretion to
prevent or to cure any default by Mortgagor in the performance of
or compliance with any of the agreements, covenants, terms or
conditions imposed upon or assumed by Mortgagor as lessee under
such Facility Lease, even though the existence of such default or
the nature thereof be questioned or denied by Mortgagor or by any
party on behalf of Mortgagor. Without limiting the generality of
Section 3.9, Mortgagor hereby expressly grants to Mortgagee, and
agrees that Mortgagee shall have, the absolute and immediate
right to enter in and upon the Premises or any part thereof to
such extent and as often as Mortgagee, in its sole discretion,
deems necessary or desirable for the purpose permitted by the
immediately preceding sentence, subject only to applicable Legal
Requirements. Without limiting Mortgagor's obligations or
Mortgagee's rights set forth above or limiting Mortgagee's other
remedies under this Senior Guarantee Mortgage, Mortgagee may pay
and expend such sums of money as Mortgagee in its sole discretion
deems necessary for any such purpose, and Mortgagor hereby agrees
to pay to Mortgagee immediately and without demand, all such sums
referred to above, so paid and expended by Mortgagee, together
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with interest thereon from the date of each such payment at the
highest rate of interest set forth in the Senior Partnership
Note. All sums so paid and expended by Mortgagee, and the
interest thereon, shall be added to and be secured by the lien of
this Senior Guarantee Mortgage.
(b) Mortgagor further covenants and agrees as follows:
(i) Mortgagor shall not surrender, terminate or cancel
any Facility Lease, and shall not without the consent of
Mortgagee modify, change, supplement, alter or amend any
Facility Lease either orally or in writing if an impairment
of the security granted under this Senior Guarantee Mortgage
would result therefrom. As further security for the
repayment of the indebtedness secured hereby and for the
performance of the covenants herein and in each Facility
Lease contained, Mortgagor hereby assigns to Mortgagee all
of Mortgagor's rights, privileges and prerogatives as lessee
under each Facility Lease to terminate, cancel, modify,
change, supplement, alter or amend such Facility Lease and
any such termination, cancellation, modification, change,
supplement, alteration or amendment of a Facility Lease
without the prior consent thereto by Mortgagee shall be void
and of no force and effect. Unless (1) an Event of Default
has occurred and is continuing and (2) either (A) there has
been an acceleration of maturity of the Senior Partnership
Note pursuant to Section 3.2 or (B) Mortgagee exercises its
rights under Section 3.9, Mortgagee shall have no right to
terminate, cancel, modify, change, supplement, alter or
amend any Facility Lease.
(ii) Solely for the benefit of Mortgagee, Trustee, the
Holders and no other person, no release or forbearance of
any of Mortgagor's obligations under any Facility Lease,
pursuant to such Facility Lease or otherwise, shall release
Mortgagor from any of Mortgagor's other obligations under
this Senior Guarantee Mortgage.
(iii) Unless Mortgagee shall otherwise expressly
consent in writing, the fee title to the Leased Facilities
and Mortgagor's leasehold estates therein shall not merge
and shall always remain separate and distinct,
notwithstanding the union of said estates either in the
Lessor or in the lessee, or in a third party by purchase or
otherwise
(iv) Mortgagor shall promptly notify Mortgagee in
writing of any request made by Mortgagor, as lessee under
any Facility Lease, or any of the Lessors, for arbitration
proceedings under any Facility Lease and of the institution
of any arbitration proceedings, as well as all proceedings
thereunder. Mortgagor shall promptly deliver to Mortgagee a
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copy of the determination of the arbitrators in each such
arbitration proceeding. Mortgagee shall have the right to
participate in such arbitration proceedings in association with
Mortgagor or on its own behalf as an interested party.
(v) Mortgagor shall not consent to the subordination
of any Facility Lease to any mortgage, deed of trust or
other lien on the fee interest of the Lessor.
(vi) If Mortgagor acquires fee simple title or any
other estate, title or interest in any Leased Facility,
Mortgagor shall promptly notify Mortgagee of such
acquisition and, on request by Mortgagee, shall cause to be
executed and recorded all such other and further assurances
or other instruments in writing as may in the opinion of
Mortgagee be required or desirable to carry out the intent
and meaning of clause (x) of Granting Clause Third.
(vii) Within 5 days after Mortgagor's receipt of any
notice of any motion, application or effort to reject any
Facility Lease by any Lessor or any trustee arising from or
in connection with any case, proceeding or other action
commenced or pending by or against any Lessor under the Code
or any comparable provision contained in any present or
future federal, state, local, foreign or other statute, law,
rule or regulation ("Comparable Provision"), Mortgagor shall
give notice thereof to Mortgagee. Mortgagor hereby (A)
assigns to Mortgagee any and all of Mortgagor's rights as
lessee under Section 365(h) of the Code or any Comparable
Provision and (B) covenants that it shall not elect to treat
any Facility Lease as terminated pursuant to Section 365(h)
of the Code or any Comparable Provision without the prior
consent of Mortgagee and (C) agrees that any such election
by Mortgagor without such consent shall be null and void.
(viii) Without limiting the generality of the
foregoing, to the extent permitted by applicable law,
Mortgagor hereby unconditionally assigns, transfers and sets
over to Mortgagee all of Mortgagor's claims and rights to
the payment of damages arising from any rejection by Lessor
of any Facility Lease under the Code or any Comparable
Provision. Mortgagee shall have the right to proceed in its
own name or in the name of Mortgagor in respect of any
claim, suit, action or proceeding relating to the rejection
of any Facility Lease, including, without limitation, the
right to file and prosecute, in cooperation with Mortgagor,
any proofs of claim, complaints, motions, applications,
notices and other documents, in any case in respect of
Lessor under the Code or any Comparable Provision. This
assignment constitutes a present, irrevocable and
unconditional assignment of the foregoing claims, rights and
remedies, and shall continue in effect until all of the
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indebtedness and obligations secured by this Senior Guarantee
Mortgage shall have been satisfied and discharged in full. Any
amounts received by Mortgagee in damages arising out of the
rejection of any Facility Lease as aforesaid shall be applied
first to all reasonable costs and expenses of Mortgagee
(including, without limitation, reasonable attorneys' fees,
disbursements and court costs) incurred in connection with the
exercise of any of its rights or remedies under this Section
5.18, and thereafter as provided in Section 3.3.
(ix) If there shall be filed by or against Mortgagor a
petition under the Code or any Comparable Provision and
Mortgagor, as lessee under any Facility Lease, shall
determine to reject such Facility Lease, Mortgagor shall
give Mortgagee not less than 10 days' prior notice of the
date on which Mortgagor shall apply to the Bankruptcy Court
or other judicial body with appropriate jurisdiction for
authority to reject such Facility Lease. Mortgagee shall
have the right, but not the obligation, to serve upon
Mortgagor within such 10-day period a notice stating that
(a) Mortgagee demands that Mortgagor assume and assign such
Facility Lease to Mortgagee pursuant to Section 365 of the
Code or any Comparable Provision and (b) Mortgagee covenants
to cure or provide adequate assurance of prompt cure of all
defaults and provide adequate assurance of future
performance under such Facility Lease. If Mortgagee serves
upon Mortgagor the notice described in the preceding
sentence, Mortgagor shall not seek to reject such Facility
Lease and shall comply with the demand provided for in
clause (a) of the preceding sentence within 30 days after
the notice shall have been given subject to the performance
by Mortgagee of the covenant provided for in clause (b) of
the preceding sentence. The foregoing provisions of this
Section 5.18(ix) shall not apply to the extent not permitted
by applicable law. Effective upon the entry of an order for
relief in respect of Mortgagor under Chapter 7 of the Code
or any Comparable Provision, Mortgagor hereby assigns and
transfers to Mortgagee a non-exclusive right to apply to the
Bankruptcy Court or other judicial body with appropriate
jurisdiction for an order extending the period during which
such Facility Lease may be rejected or assumed.
(x) Mortgagor shall promptly give to Mortgagee copies
of (A) all notices of default and (B) any other
communications or notices with respect to events that relate
to the possible impairment of the security of this Senior
Guarantee Mortgage, which Mortgagor shall give or receive
under any Facility Lease and shall promptly notify Mortgagee
of any default under any Facility Lease on the part of the
Lessor or Mortgagor.
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(xi) Mortgagor shall enforce with due diligence all of
the obligations of the Lessor under each Facility Lease, to
the end that Mortgagor may enjoy all of the rights and
privileges granted to it under the Facility Leases.
(xii) Mortgagor shall notify Mortgagee within 5 days
after the transfer of a fee interest in any Leased Facility
or any portion thereof to or from an Affiliate.
(xiii) No Affiliate of Mortgagor shall at any time
hereafter acquire fee title to the Leased Land or any
portion thereof unless simultaneously with such acquisition
such Affiliate and Mortgagor execute and exchange (and
deliver to the Trustee an executed counterpart of) an
instrument in form and substance satisfactory to Mortgagee
providing that so long as such Affiliate owns such fee title
(A) such Affiliate shall not terminate the applicable
Facility Lease for any reason whatsoever (including, without
limitation, due to the default of Mortgagor under such
FacilitY Lease) and (B) such Affiliate shall not accept,
and, if tendered by Mortgagor shall promptly return to
Mortgagor, any payment of rent or other charges payable
under such Facility Lease in excess of the amount required
to pay the debt service and other sums payable under any
mortgage affecting such Affiliate's fee interest in the
applicable Leased Facility (and such Affiliate shall use
such funds only to pay its debt service obligations and
other sums payable under such mortgage) at any time that an
Event of Default, or a Default of the types described in
Section 3.1(a), (b) and (f) of this Senior Guarantee
Mortgage or Section 5.1(a), (b), (f) or (g) of the Senior
Note Indenture, shall have occurred and be continuing under
this Senior Guarantee Mortgage or the Senior Note Indenture.
(c) Subject to the provisions of Subsection 5.18(b)(iii),
if both the lessor's and lessee's estates under any Facility
Lease or any portion thereof shall at any time become vested in
one owner, this Senior Guarantee Mortgage and the lien created
hereby shall nevertheless not be destroyed or terminated by
application of the doctrine of merger and, in such event,
Mortgagee shall continue to have all of the rights and privileges
of a first leasehold mortgagee.
(d) Mortgagor hereby acknowledges that if any Facility
Lease shall be terminated prior to the natural expiration of its
term due to default by the lessee thereunder, and if pursuant to
such Facility Lease, Mortgagee or its designee shall acquire from
the Lessor a new lease of the Leased Facility or any portion
thereof, Mortgagor shall have no right, title or interest in or
to such lease or the leasehold estate created thereby, or the
options therein contained.
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(e) Each Facility Lease hereafter entered into or assumed
by Mortgagor as lessee or sublessee shall contain provisions (i)
permitting the assignment of the same to Mortgagee and the
Trustee and permitting assignment without the lessor's consent if
this Senior Guarantee Mortgage is foreclosed; and (ii) providing
protection to Mortgagee, as leasehold mortgagee, in form
reasonably satisfactory to Mortgagee.
Section 5.19. Superior Mortgage.
(a) Mortgagor shall at all times fully perform and comply
with all agreements, covenants, terms and conditions imposed upon
or assumed by it as mortgagor under the Superior Mortgage prior
to the expiration of any notice and/or cure period provided in
each such Superior Mortgage. If a notice of default has been
given by the holder of the Superior Mortgage, Mortgagee may rely
thereon and take any action Mortgagee deems necessary in its sole
discretion to prevent or to cure any default by Mortgagor in the
performance of or compliance with any of the agreements,
covenants, terms or conditions imposed upon or assumed by
Mortgagor as mortgagor under the Superior Mortgage even though
the existence of such default or the nature thereof be questioned
or denied by Mortgagor or by any party on behalf of Mortgagor.
Without limiting the generality of Section 3.9, Mortgagor hereby
expressly grants to Mortgagee, and agrees that Mortgagee shall
have, the absolute and immediate right to enter in and upon the
Premises or any part thereof to such extent and as often as
Mortgagee, in its sole discretion, deems necessary or desirable
for the purpose permitted by the immediately preceding sentence,
subject only to applicable Legal Requirements. Without limiting
Mortgagor's obligations or Mortgagee's rights set forth above or
limiting Mortgagee's other remedies under this Senior Guarantee
Mortgage, Mortgagee may (i) pay and expend such sums of money as
Mortgagee in its sole discretion deems necessary or desirable for
any such purpose and (ii) in its sole discretion prepay the
Superior Mortgage, then in default, and Mortgagor hereby agrees
to pay to Mortgagee immediately and without demand, all such sums
referred to in (i) and (ii) above so paid and expended by
Mortgagee, together with interest thereon from the date of each
such payment at the highest rate of interest set forth in the
Senior Partnership Note. All sums so paid and expended by
Mortgagee and the interest thereon, shall be added to and be
secured by the lien of this Senior Guarantee Mortgage.
(b) Mortgagor further covenants and agrees:
(i) Mortgagor shall not, without first obtaining the
consent of Mortgagee in each instance: (A) modify, replace
or refinance the Superior Mortgage if (x) the collateral
securing the lien thereof would be increased thereby (other
than after-acquired property required by the terms of the
Superior Mortgage to be encumbered thereby), or (y) such
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modification, replacement or refinancing violates any other
provision of this Senior Guarantee Mortgage or the Senior Note
Indenture or (B) acquire or permit or suffer any Affiliate of
Mortgagor to acquire any Superior Mortgage or any interest
therein;
(ii) Mortgagor shall timely pay and perform all of the
obligations to be paid or performed by the mortgagor under
the Superior Mortgage, the note secured thereby and any
other instrument evidencing or securing the indebtedness
owing to any holder of the Superior Mortgage;
(iii) at any time and from time to time, Mortgagor
shall upon request of Mortgagee promptly use its reasonable
efforts to obtain an estoppel certificate or letter
addressed to Mortgagee from the holder of the Superior
Mortgage, such certificate or letter to be in such form as
Mortgagee shall reasonably request;
(iv) Mortgagor shall promptly give to Mortgagee copies
of (A) all notices of default or (B) any other notice or
communication with respect to events which relate to the
possible impairment of the security of this Senior Guarantee
Mortgage, which Mortgagor shall give or receive under the
Superior Mortgage and shall promptly notify Mortgagee of any
default under the Superior Mortgage on the part of
Mortgagor.
Section 5.20. Indemnification.
Mortgagor shall protect, indemnify, hold harmless and defend
Mortgagee and its directors, officers, partners, shareholders,
agents, servants and employees from and against any and all
liabilities, obligations, claims, damages, penalties, causes of
action, costs and expenses (including, without limitation,
reasonable attorneys' fees, disbursements and court costs),
imposed upon or incurred by or asserted against Mortgagee by
reason of (a) any injury to or death of Persons or loss of or
damage to property occurring on or about the Premises or any part
thereof or the adjoining sidewalks, curbs, vaults and vault
spaces, if any, streets, alleys or ways, (b) any use, nonuse or
condition of the Premises or any part thereof or the adjoining
sidewalks, curbs, vaults and vault spaces, if any, streets,
alleys or ways, (c) any failure on the part of Mortgagor to
perform or comply with any of the terms of this Senior Guarantee
Mortgage, (d) performance of any labor or services or the
furnishing of any materials or other property in respect of the
Premises or any part thereof made or suffered to be made by or on
behalf of Mortgagor, (e) any negligence or tortious act on the
part of Mortgagor or any of its agents, contractors, lessees,
licensees or invitees, or (f) any work in connection with the
Premises; provided, that no amounts shall be payable to Mortgagee
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under this Section 5.20 in respect of liabilities, obligations,
claims, damages, penalties, causes of action, costs or expenses
imposed upon or incurred by or asserted against Mortgagee to the
extent the same result from any negligence or tortious act on the
part of Mortgagee or any of its agents, contractors, lessees,
licensees or invitees. All amounts payable to Mortgagee under
this Section 5.20 shall be payable on demand; provided, that with
respect to consequential damages (other than attorneys' fees,
disbursements and court costs imposed upon or incurred by
Mortgagee in connection therewith, which shall in all events be
payable on demand), no such amounts shall be payable until, and
to the extent that, (i) there has been entered the final
determination of a court of competent jurisdiction awarding such
consequential damages to the party or parties seeking such
damages or (ii) an agreement of settlement with respect thereto
(which shall have been previously approved by Mortgagor, such
consent not to be unreasonably withheld) shall have been executed
by Mortgagee and such party or parties. Any such amounts which
are not paid within 5 days after demand therefor by Mortgagee
shall bear interest at the rate set forth in the Senior
Partnership Note from the date of such demand and all such
amounts and interest thereon shall be secured by the lien of this
Senior Guarantee Mortgage. In case any action, suit or
proceeding is brought against Mortgagee by reason of any such
occurrence, Mortgagor, upon request of Mortgagee, shall, at
Mortgagor's expense, resist and defend such action, suit or
proceeding or cause the same to be resisted or defended by
counsel designated by Mortgagor and approved by Mortgagee, which
approval shall not be unreasonably withheld; provided, that
Willkie, Farr & Gallagher is hereby approved by Mortgagee.
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<PAGE>
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed and attested, all as of the day and
year first above written.
TRUMP'S CASTLE ASSOCIATES
Witness: ____________________ By: _________________________
Name:
Title:
FIRST BANK NATIONAL ASSOCIATION
Witness: ____________________ By: _________________________
Name:
Title:
(70)
<PAGE>
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the ___ day of December, 1993, before me personally came
Donald J. Trump, to me know, who, being by me duly sworn, did depose
and say that he resides at 721 Fifth Avenue, New York, New York; that
he is the managing general partner of Trump's Castle Associates, the
partnership described in and which executed the above instrument; and
he acknowledged that he signed and delivered the same on behalf of
such partnership as his voluntary act and deed and as the voluntary
act and deed of such partnership, pursuant to authority of the board
of directors of said partnership, and that he received a true copy of
the within instrument on behalf of said general partnership.
_________________________
Notary Public
(NOTARY SEAL)
(71)
<PAGE>
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the _____ day of December, 1993, before me, personally came
Frank P. Leslie, to me known, who, being by me duly sworn did depose
and say that he is Assistant Vice President of First Bank National
Association, the national banking association described in and which
executed the above instrument; that he knows the corporate seal of
such corporation; that the seal affixed to said instrument is such
corporate seal; that it was so affixed pursuant to authority of the
Board of Directors of such corporation; and that he signed his name
thereto pursuant to like authority.
_________________________
Notary Public
(NOTARY SEAL)
<PAGE>
(72)
<PAGE>
Exhibit B to
Senior Note Indenture
INDENTURE OF MORTGAGE AND SECURITY AGREEMENT
(Senior Note Mortgage)
TRUMP'S CASTLE ASSOCIATES,
Mortgagor/Debtor
and
TRUMP'S CASTLE FUNDING, INC.,
Mortgagee/Secured Party
Dated as of December 28, 1993
Record and Return to:
Robert L. Nutt, Esq.
Ropes & Gray
One International Place
Boston, Massachusetts 02110-2624
<PAGE>
<PAGE>
TABLE OF CONTENTS
ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF
GENERAL APPLICATION. . . . . . . . . . . . . . . . . . . . . . . . 9
Section 1.1. Definitions. . . . . . . . . . . . . . . . . . 9
Section 1.2. Notices. . . . . . . . . . . . . . . . . . . . 19
Section 1.3. Form and Contents of
Documents Delivered to Mortgagee. . . . . . . . . . 20
Section 1.4. Compliance Certificates and Opinions.. . . . . 21
Section 1.5. Effect of Headings and Table of Contents.. . . 22
Section 1.6. Successors and Assigns; Amendments.. . . . . . 22
Section 1.7. Separability Clause. . . . . . . . . . . . . . 22
Section 1.8. Benefits of Mortgage.. . . . . . . . . . . . . 22
Section 1.9. Governing Law. . . . . . . . . . . . . . . . . 22
Section 1.10. Limitation on Liability. . . . . . . . . . . . 22
Section 1.11. Provisions Required by Senior Note
Indenture. . . . . . . . . . . . . . . . . . . . . . . . 23
Section 1.12. References to Mortgagee
and/or to Trustee; Rights of Trustee. . . . . . . . 23
Section 1.13. Mortgage Subject to Casino Control Act.. . . . 25
Section 1.14. Discharge of Lien. . . . . . . . . . . . . . . 25
Section 1.15. General Application. . . . . . . . . . . . . . 26
Section 1.16. Senior Note Mortgage Deemed to be Security
Agreement. . . . . . . . . . . . . . . . . . . . . . . . 26
Section 1.17. No Duplication of Notices or Payments. . . . . 26
ARTICLE TWO RELEASE; SUBORDINATION . . . . . . . . . . . . . . . . 27
Section 2.1. Possession by Mortgagor. . . . . . . . . . . . 27
Section 2.2. Obsolete Property. . . . . . . . . . . . . . . 27
Section 2.3. F,F&E Financing Agreements.. . . . . . . . . . 28
ARTICLE THREE REMEDIES . . . . . . . . . . . . . . . . . . . . . . 29
Section 3.1. Events of Default. . . . . . . . . . . . . . . 29
Section 3.2. Acceleration of Maturity;
Recision and Annulment. . . . . . . . . . . . . . . 31
Section 3.3. Application of Moneys Received by
Mortgagee. . . . . . . . . . . . . . . . . . . . . . . . 31
Section 3.4. Restoration of Rights and Remedies.. . . . . . 31
Section 3.5. Rights and Remedies Cumulative.. . . . . . . . 31
Section 3.6. Delay or Omission Not Waiver.. . . . . . . . . 32
Section 3.7. Undertaking for Costs. . . . . . . . . . . . . 32
Section 3.8. Waiver of Appraisement and Other Laws. . . . . 32
Section 3.9. Entry. . . . . . . . . . . . . . . . . . . . . 33
Section 3.10. Power of Sale; Suits for Enforcement.. . . . . 33
Section 3.11. Incidents of Sale. . . . . . . . . . . . . . . 34
Section 3.12. Receiver.. . . . . . . . . . . . . . . . . . . 35
Section 3.13. Suits to Protect the Trust Estate. . . . . . . 35
Section 3.14. Management of the Premises.. . . . . . . . . . 36
(i)
<PAGE>
ARTICLE FOUR CONSOLIDATION, MERGER, CONVEYANCE,
TRANSFER OR LEASE. . . . . . . . . . . . . . . . . . . . . . . . . 36
Section 4.1. Consolidation, Merger, Conveyance
or Transfer only on Certain Terms.. . . . . . . . . 36
Section 4.2. Successor Entity Substituted.. . . . . . . . . 36
ARTICLE FIVE COVENANTS AND REPRESENTATIONS OF MORTGAGOR . . . . . 36
Section 5.1. Payment of Principal, Premium and Interest.. . 36
Section 5.2. F,F&E Financing Agreements.. . . . . . . . . . 37
Section 5.3. Limitations on Liens and Transfers.. . . . . . 37
Section 5.4. Environmental. . . . . . . . . . . . . . . . . 38
Section 5.5. Warranty of Leasehold Estate and Title . . . . 42
Section 5.6. After-Acquired Property;
Further Assurances; Recording.. . . . . . . . . . . 43
Section 5.7. Payment of Taxes and Certain Claims;
Maintenance of Properties; Compliance with
Legal Requirements and Insurance Requirements.. . . 45
Section 5.8. Permitted Contests . . . . . . . . . . . . . . 46
Section 5.9. Mechanics' and Other Liens.. . . . . . . . . . 47
Section 5.10. To Insure. . . . . . . . . . . . . . . . . . . 47
Section 5.11. Limitations on Building Demolition,
Alterations, Improvements and New Construction. . . 55
Section 5.12. Leases.. . . . . . . . . . . . . . . . . . . . 57
Section 5.13. Compliance Certificates. . . . . . . . . . . . 59
Section 5.14. To Keep Books; Inspection by Mortgagee . . . . 59
Section 5.15. Advances by Mortgagee. . . . . . . . . . . . . 60
Section 5.16. Waiver of Stay, Extension or Usury Laws. . . . 60
Section 5.17. Eminent Domain.. . . . . . . . . . . . . . . . 60
Section 5.18. Facility Leases. . . . . . . . . . . . . . . . 63
Section 5.19. Superior Mortgage. . . . . . . . . . . . . . . 67
Section 5.20. Indemnification. . . . . . . . . . . . . . . . 69
SCHEDULE 1 OWNED LAND. . . . . . . . . . . . . . . . . . . . . . 1-1
SCHEDULE 2 LEASED LAND . . . . . . . . . . . . . . . . . . . . . 2-1
SCHEDULE 3 EXISTING ENCUMBRANCES . . . . . . . . . . . . . . . . 3-1
SCHEDULE 4 FORM OF NON-DISTURBANCE AND ATTORNMENT AGREEMENT. . . 4-1
(ii)
<PAGE>
<PAGE>
INDENTURE OF MORTGAGE AND SECURITY AGREEMENT
INDENTURE OF MORTGAGE AND SECURITY AGREEMENT ("Senior Note
Mortgage" or "Mortgage"), dated as of December 28, 1993, between
TRUMP'S CASTLE ASSOCIATES, a New Jersey general partnership having an
office at Brigantine Boulevard and Huron Avenue, Atlantic City, New
Jersey 08401 ("Mortgagor"), and TRUMP'S CASTLE FUNDING, INC., a New
Jersey corporation having an office at Brigantine Boulevard and Huron
Avenue, Atlantic City, New Jersey 08401 ("Mortgagee").
Witnesseth:
In consideration of $10.00 in hand paid by Mortgagee to
Mortgagor and for other good and valuable consideration, the receipt
and sufficiency whereof is hereby acknowledged, and in order to
secure (i) the payment of the principal amount (and premium, if any)
of the Senior Partnership Note, in lawful money of the United States,
to be paid in accordance with the provisions thereof (and of all
modifications, extensions, and renewals thereof), all of which
provisions are hereby made an integral part hereof as though set
forth at length herein; (ii) payment of interest (including, without
limitation, interest on all overdue principal and premium, if any)
becoming due under the provisions of the Senior Partnership Note;
(iii) payment by Mortgagor to Mortgagee of all sums expended or
advanced by Mortgagee pursuant to any term or provision of this
Senior Note Mortgage; (iv) performance of each covenant, term,
condition and agreement of Mortgagor herein or in the Senior
Partnership Note contained; (v) all costs and expenses, including,
without limitation, reasonable counsel fees and expenses as provided
in Section 3.7 of this Mortgage, which may arise in respect of the
Senior Partnership Note and this Senior Note Mortgage or of the
obligations secured hereby; and (vi) performance and observance of
all of the provisions herein contained, Mortgagor has executed and
delivered this Senior Note Mortgage and has bargained, sold, aliened,
mortgaged, pledged, released, conveyed and confirmed unto Mortgagee
and its successors hereunder and assigns forever, and does hereby
grant to Mortgagee and its successors a security interest in and to,
all of Mortgagor's right, title and interest in, to and under all of
the following described property and the proceeds thereof:
(1)
<PAGE>
GRANTING CLAUSES
Granting Clause First
All of the property, rights, title, interest, privileges and
franchises particularly described in annexed Schedule 1 (the "Owned
Land"), which Schedule is hereby made a part of, and deemed to be
described in, this Granting Clause as fully as if set forth in this
Granting Clause at length.
Granting Clause Second
[Intentionally omitted]
Granting Clause Third
All of the property, rights, title, interest, privileges and
franchises of Mortgagor as lessee under all Facility Leases
(including, to the extent permissible to the Landlord under the
Marina Lease, the Marina Lease), together with (i) all credits,
deposits, privileges and rights of Mortgagor as lessee under the
Facility Leases, now or at any time existing, (ii) the leaseholds and
the leasehold estates created by the Facility Leases and (iii) all of
the estates, rights, titles, claims or demands whatsoever of
Mortgagor, either in law or in equity, in possession or in
expectancy, of, in and to the Facility Leases and the Leased
Facilities (including, but not limited to, the Leased Land
particularly described in annexed Schedule 2), together with (x) any
and all other, further or additional title, estates, interests or
rights which may at any time be acquired by Mortgagor in or to the
Leased Facilities or any part thereof, and Mortgagor expressly agrees
that if Mortgagor shall, at any time prior to payment in full of all
indebtedness secured hereby, acquire fee simple title or any other
greater estate to the Leased Facilities, the lien of this Mortgage,
subject to Permitted Encumbrances, shall attach, extend to, cover and
be a lien upon such fee simple title or other greater estate and
thereupon the lien of this Mortgage, subject to Permitted
Encumbrances, shall be prior to the lien of any mortgage or deed of
trust placed on such acquired title, estate, interest or right
subsequent to the date of this Mortgage and (y) any right to
possession or statutory term of years derived from, or incident to,
the Facility Leases pursuant to Section 365(h) of the Code or any
Comparable Provision.
(2)
<PAGE>
Granting Clause Fourth
All of the rents, issues, profits, revenues, accounts, accounts
receivable and other income and proceeds (including, without
limitation, all rents, fees, charges, accounts, issues, profits,
revenues and payments for or from (a) the use or occupancy of the
rooms and other public facilities in the Hotel and (b) the operation
of the Casino) of the property subjected or required to be subjected
to the lien of this Mortgage, including, without limitation, the
property described in Granting Clauses First, Third and Seventh (said
property described in Granting Clauses First, Third and Seventh and
similar other property subjected or required to be subjected to the
lien of this Mortgage, together with all such rents, issues, profits,
revenues, accounts, accounts receivable and other income and proceeds
therefrom is hereinafter collectively referred to as the "Premises")
and all of the estate, right, title and interest of every nature
whatsoever of Mortgagor in and to the same and every part thereof.
Granting Clause Fifth
All of the rights of Mortgagor as lessor under the Leases in
effect on the date of execution of this Mortgage or hereafter entered
into by Mortgagor, including modifications, extensions and renewals
of all of the same, and the immediate and continuing right as
security after the occurrence, and during the continuance, of an
Event of Default, to (a) make claim for, collect, receive and receipt
for (and to apply the same as provided herein) any and all rents,
fees, charges, income, revenues, issues, profits, security and other
sums of money payable or receivable thereunder or pursuant thereto,
and all proceeds thereof, whether payable as rent, insurance
proceeds, condemnation awards, security or otherwise and whether
payable prior to or subsequent to the Stated Maturity of the Senior
Partnership Note, (b) receive and give notices and consents
thereunder, (c) bring actions and proceedings thereunder or for the
enforcement thereof, (d) make waivers and agreements thereunder or
with respect thereto, (e) take such action upon the happening of a
default under any Lease, including the commencement, conduct and
consummation of any proceedings at law or in equity as shall be
permitted by any provision of any Lease, and (f) do any and all
things which Mortgagor or any lessor is or may become entitled to do
under the Leases; provided that, except as may be set forth to the
contrary herein, the assignment made by this Granting Clause Fourth
shall not impair or diminish any right, privilege or obligation of
Mortgagor under the Leases nor shall any such obligation be imposed
upon Mortgagee.
(3)
<PAGE>
Granting Clause Sixth
Without limiting the generality of the provisions of Granting
Clause Fourth, all of Mortgagor's rights, title, interest, privileges
and franchises in and to the following, now owned or hereafter
acquired by Mortgagor, to the extent of Mortgagor's interest therein
and thereto and to the extent assignable (collectively, "Operating
Assets"):
(a) bookings for the use of guest rooms, banquet facilities,
meeting rooms at the Casino Hotel or at any other improvements now or
hereafter located on any of the Land;
(b) all contracts respecting utility services for, and the
maintenance, operations, or equipping of, the Premises, including
guaranties and warranties relating thereto;
(c) the Permits;
(d) all contract rights, leases (whether with respect to real
property, personal property or both real and personal property),
concessions, trademarks, trade names, service marks, logos,
copyrights, warranties and other items of intangible personal
property, and any and all good will associated with the same,
relating to the ownership or operation of the Casino Hotel or of any
other improvements now or hereafter located on any of the Land,
including, without limitation, (1) employment contracts with officers
and other employees of Mortgagee, (2) telephone and other
communication numbers, (3) all software licensing agreements as are
required to operate computer software systems at the Casino Hotel or
at any other improvements now or hereafter located on any of the Land
and books and records relating to the software programs and (4)
lessee's interest under leases of Tangible Personal Property;
(e) all contracts, purchase orders, requisitions and agreements
entered into by or on behalf of Mortgagor or which have been assigned
to Mortgagor, for the design, construction, and furnishing of the
Casino Hotel or of any other improvements now or hereafter located on
any of the Land, including, without limitation, architect's
agreements, engineering agreements, construction contracts,
consulting agreements and agreements or purchase orders for all items
of Tangible Personal Property and payment and performance bonds in
favor of Mortgagor in connection with the Trust Estate (and all
warranties and guarantees thereunder and warranties and guarantees of
any subcontractor and bond issued in connection with the work to be
performed by any subcontractor);
(f) the following personal property (the "Tangible Personal
Property") now or hereafter acquired by Mortgagor (directly or by
(4)
<PAGE>
way of lease) which is located on, or to be located on, or which are
in use or held in reserve storage for future use in connection with
the gaming or other operations of, the Casino Hotel or of any other
improvements now or hereafter located on any of the Land, which is on
hand or on order whether stored on-site or off-site:
(i) all furniture, furnishings, equipment, machinery,
lighting, apparatus (both interior and exterior), appliances,
fixtures and fittings and other articles of tangible personal
property;
(ii) all slot machines, electronic gaming devices, crap
tables, blackjack tables, poker tables, roulette tables,
baccarat tables, big six wheels and other gaming tables, and all
furnishings and equipment to be used in connection with the
operation thereof;
(iii) all cards, dice, gaming chips and plaques, tokens,
chip racks, dealing shoes, dice cups, dice sticks, layouts,
paddles, roulette balls and other consumable supplies and items;
(iv) all china, glassware, linens, kitchen utensils,
silverware and uniforms;
(v) all consumables and operating supplies of every kind
and nature, including, without limitation, accounting supplies,
guest supplies, forms, printing, stationery, food and beverage
stock, bar supplies, laundry supplies and brochures to existing
purchase orders;
(vi) all upholstery material, carpets and rugs, beds,
bureaus, chiffonniers, chairs, chests, desks, bookcases, tables,
curtains, hangings, pictures, divans, couches, ornaments, bars,
bar fixtures, safes, stoves, ranges, refrigerators, radios,
televisions, clocks; electrical equipment, lamps, mirrors,
heating and lighting fixtures and equipment, ice machines, air
conditioning machines, fire prevention and extinguishing
apparatus, laundry machines, and all similar and related
articles used in bedrooms, sitting rooms, bathrooms, boudoirs,
halls, closets, kitchens, dining rooms, offices, lobbies,
basements and cellars in the Casino Hotel and in any other
improvements now or hereafter located on any of the Land;
(vii) all sets and scenery, costumes, props and other
items of tangible personal property on hand or on order for use
in the production of shows in any showroom, convention space,
exhibition hall, or sports and entertainment arena of the Casino
Hotel or in any other improvements now or hereafter located on
any of the Land; and
(5)
<PAGE>
(viii) all cars, limousines, vans, buses, trucks and other
vehicles owned or leased by Mortgagor for use in connection with
the operation of the Premises, together with all equipment,
parts and supplies used to service, repair, maintain and equip
the foregoing;
(g) all drawings, designs, plans and specifications prepared by
architects, engineers, interior designers, landscape designers and
any other professionals or consultants for the design, development,
construction and/or improvement of the Casino Hotel, or for any other
development of the Premises, as amended from time to time;
(h) any administrative and judicial proceedings initiated by
Mortgagor, or in which Mortgagor has intervened, concerning the
Premises, and agreements, if any, which are the subject matter of
such proceedings;
(i) any customer lists utilized by Mortgagor including lists of
transient guests and restaurant and bar patrons and "high roller"
lists; and
(j) all of the good will in connection with the assets listed
in this Granting Clause Sixth and in connection with the operation of
the Premises.
Except as may be set forth to the contrary herein, the
assignment made by this Granting Clause Sixth shall not impair or
diminish any right, privilege or obligation of Mortgagor with respect
to the Operating Assets, nor shall any such obligation be imposed on
Mortgagee.
Granting Clause Seventh
(a) All of Mortgagor's rights, title, interest, privileges and
franchises, if any, in and to all buildings, structures (surface and
subsurface), and other improvements of every kind and description,
including, without limitation, all pedestrian bridges, entrance-ways,
parking lots, plazas, curb-cuts, walkways, driveways and landscaping
and such fixtures as constitute real property, now or hereafter
erected or placed on the Land or on any other land or any interest
therein hereafter acquired by Mortgagor and all of Mortgagor's
rights, title, interest, privileges and franchises in and to all
fixtures and articles of personal property now or hereafter attached
to or contained in and used in connection with such buildings and
improvements, including, without limitation, all apparatus,
furniture, furnishings, lighting equipment, electronic billboards,
machinery, motors, elevators, fittings, radiators, cooking ranges,
ice boxes, ice machines, printing presses,
(6)
<PAGE>
mirrors, bars, mechanical refrigerators, furnaces, coal and oil
burning apparatus, wall cabinets, machinery, generators, partitions,
steam and hot water boilers, lighting and power plants, pipes,
plumbing, radiators, sinks, bath tubs, water closets, gas and
electrical fixtures, awnings, shades, screens, blinds, dishwashers,
freezers, vacuum cleaning systems, office equipment and other
furnishings, and all plumbing, heating, lighting, cooking, laundry,
ventilating, incinerating, air-conditioning and sprinkler equipment
or other fire prevention or extinguishing apparatus and material, and
fixtures and appurtenances thereto; and all renewals or replacements
thereof or articles in substitution therefor, whether or not the same
are or shall be attached to the Land, any other land or any interest
therein hereafter acquired by Mortgagor or to any such buildings and
improvements thereon, in any manner.
(b) All of Mortgagor's rights, title, interest, privileges and
franchises in and to all other property, real, personal or mixed
(other than Excepted Property), of every kind and description and
wheresoever situate, now owned or which may be hereafter acquired by
Mortgagor, it being the intention hereof that all property,
interests, rights, privileges and franchises now owned by Mortgagor
or acquired by Mortgagor after the date hereof (other than Excepted
Property) shall be as fully embraced within and subjected to the lien
hereof as if such property were specifically described herein.
* * *
TOGETHER with all of Mortgagor's right, title and interest in
and to any and all mineral and water rights and any title or
reversion, in and to the beds of the ways, streets, avenues and
alleys adjoining the Premises to the center line thereof and in and
to all strips, gaps and gores adjoining the Premises on all sides
thereof; and
TOGETHER with any and all of Mortgagor's right, title and
interest in and to the tenements, hereditaments, easements,
appurtenances, passages, waters, water courses, riparian rights,
other rights, liberties and privileges thereof or in any way now or
hereafter appertaining to the Premises, including, without
limitation, any other claim at law or in equity as well as any
after-acquired title, franchise or license and the reversion and
reversions and remainder and remainders thereof; and
TOGETHER with any and all awards and other compensation
heretofore or hereafter to be made to the present and all subsequent
owners of the Trust Estate for any taking by eminent domain, either
permanent or temporary, of all or any part of the Trust Estate or any
easement or appurtenances thereof, including severance and
consequential damage and change in grade of
(7)
<PAGE>
streets, all in accordance with and subject to the provisions of the
Superior Instrument Requirements and Section 5.17; and
TOGETHER with any and all proceeds of any unearned premiums on
any insurance policies described in Section 5.10, and the right to
receive and apply the proceeds of any insurance, judgments, or
settlements made in lieu thereof, for damage to the Trust Estate or
otherwise, all in accordance with and subject to the provisions of
Section 5.10 and the Superior Instrument Requirements; and
TOGETHER with all proceeds of every kind and nature, and all
products of every kind and nature, of any of the foregoing property,
rights, title, interests, privileges, franchises and other assets
described in Granting Clauses First through Seventh or in any of the
other clauses thereafter.
The foregoing shall include, whether or not specifically
identified in one or more instances, all such property, rights,
title, interests, privileges, franchises and other assets now owned
and/or hereafter existing.
EXCLUDING, with respect to all of the hereinabove granted
property, rights, title, interest, privileges and franchises
described in Granting Clauses First through Seventh or in the six
immediately preceding paragraphs, all Excepted Property now or
hereafter existing.
TO HAVE AND TO HOLD all of said Premises, Leases, Facility
Leases, Operating Assets, properties, options, credits, deposits,
rights, privileges and franchises of every kind and description,
real, personal or mixed, hereby and hereafter granted, bargained,
sold, aliened, assigned, transferred, hypothecated, pledged,
released, conveyed, mortgaged, or confirmed as aforesaid, or
intended, agreed or covenanted so to be, together with all the
appurtenances thereto appertaining (said Premises, Leases, Facility
Leases, Operating Assets, properties, options, credits, deposits,
rights, privileges and franchises, other than Excepted Property now
or hereafter existing, being herein collectively called the "Trust
Estate") unto Mortgagee and its successors and assigns forever.
SUBJECT, HOWEVER, on the date hereof, to the Midlantic Mortgage
and Existing Encumbrances (including the Superior Mortgages) and,
after the date hereof, to Permitted Encumbrances (other than
Restricted Encumbrances).
PROVIDED, FURTHER, that the lien of this Senior Note Mortgage
upon the Trust Estate shall rank pari passu with the lien of the
Senior Guarantee Mortgage.
(8)
<PAGE>
BUT IN TRUST, NEVERTHELESS, for the ratable benefit and security
of the Holders.
UPON CONDITION that, until the happening of an Event of Default,
Mortgagor shall be permitted to possess and use the Trust Estate, and
to receive and use the rents, issues, profits, revenues and other
income of the Trust Estate.
AND IT IS HEREBY COVENANTED AND DECLARED that the Trust Estate
is to be held and applied by Mortgagee, subject to the further
covenants, conditions and trusts hereinafter set forth, and Mortgagor
does hereby covenant and agree to and with Mortgagee, for the ratable
benefit of the Holders, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF
GENERAL APPLICATION
Section 1.1. Definitions.
For all purposes of this Senior Note Mortgage, except as
otherwise expressly provided or unless the context otherwise
requires:
(a) the terms defined in this Article One have the meanings
assigned to them in this Article One and include the plural as well
as the singular;
(b) all accounting terms not otherwise defined herein have the
meanings assigned to them, and all computations herein provided for
shall be made, in accordance with generally accepted accounting
principles in effect on the date hereof consistently applied; and
(c) the words "herein," "hereof" and "hereunder" and other
words of similar import refer to this Mortgage as a whole and not to
any particular Article, Section or other subdivision.
"Affiliate" has the meaning set forth in Section 1.1 of the
Senior Note Indenture.
"Alterations" has the meaning set forth in Section 5.11.
"Appraised Value" means the fair market value of the Casino
Hotel, and of all other property now or hereafter owned or leased by
Mortgagor and subject to the lien of this Mortgage, as determined by
an Independent Appraiser on the basis of an appraisal in conformity
with the criteria set forth at 12 C.F.R. ss 564.4 or such similar
published policy or regulation as from time to time governs real
estate related transactions by
(9)
<PAGE>
institutions regulated by the Office of Thrift Supervision; provided,
that the value of the Casino Hotel and such other property shall not
include the value of (i) any furniture, fixtures and equipment
therein to the extent of the Outstanding Amount of any Indebtedness
secured by any F,F&E Financing Agreements with respect thereto and
(ii) any Excepted Property.
"Appraiser" means a "state certified appraiser" as defined in 12
C.F.R. ss 564.2(i) who is (i) of recognized standing among appraisers
of properties similar to the Casino Hotel and (ii) experienced in the
appraisals of properties of a similar size and scope to that of the
Casino Hotel, selected by Mortgagor.
"Architect" means an Independent Person selected by Mortgagor
and licensed as an architect in the State of New Jersey.
"Casino" means that portion of the Casino Hotel used for gaming
and related activities.
"Casino Hotel" means the casino and hotel complex currently
known as the "Trump's Castle Casino Resort" in Atlantic City, New
Jersey, and ancillary structures and facilities located on the
Premises (other than the property covered by the Marina Lease) and
all furniture, fixtures and equipment at any time contained therein
in each case owned by or leased to Mortgagor.
"Casualty" means any act or occurrence of any kind or nature
which results in damage, loss or destruction to any buildings or
improvements on the Premises and/or Tangible Personal Property.
"Certificate of Appraised Value" means the certificate of an
Independent Appraiser stating the Appraised Value.
"Code" means the Federal Bankruptcy Code, Title 11 of the United
States Code, as amended.
"Company" means Trump's Castle Funding, Inc., a corporation
incorporated under the laws of the State of New Jersey, or any other
obligor on the Senior Secured Notes (other than Mortgagor).
"Comparable Provision" has the meaning set forth in
Section 5.18.
"Default" means any event which is, or after notice or lapse of
time or both would be, an Event of Default. Without limiting the
generality of the previous provisions of this definition, the term
"Default" shall include the occurrence of an event as to which a
notice of default has been given to Mortgagor under any Facility
Lease by a Lessor or under the Superior Mortgage by the holder
thereof, which has not yet been cured.
(10)
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"Depositary" means an Independent entity to which insurance
proceeds or condemnation awards are paid to be held in trust for
Restoration pursuant to the provisions of a Superior Mortgage.
"Event of Default" has the meaning set forth in Section 3.1.
"Excepted Property" means:
(1) the personal property owned by lessees under Leases and the
personal property of any Hotel guests;
(2) trade names, intellectual property rights and other rights
and interests in and to the use of the terms "Trump's Castle,"
"Trump," "Trump's Castle Casino Resort", "Donald J. Trump," "Donald
Trump" or related variations thereof;
(3) any property deemed to be Excepted Property pursuant to the
provisions of Section 2.3;
(4) counterchecks, cash and any other property to the extent
that the granting of a security interest therein is prohibited by the
New Jersey Casino Control Act and the regulations promulgated
thereunder; and
(5) any property acquired pursuant to secured purchase-money
indebtedness permitted under clause "i" of the definition of
"Permitted Indebtedness" in the Senior Note Indenture.
"Existing Encumbrances" means the matters set forth in Schedule
3 hereto, including, but not limited to, the instruments securing,
evidencing, or governing the Midlantic Term Loan.
"Facility Leases" means, collectively:
(1) the Marina Lease;
(2) any leases other than Capital Lease Obligations and the
Marina Lease where Mortgagor is tenant or sub-tenant; provided,
however, that the aggregate fixed rental payments paid or accrued for
any period of four consecutive fiscal quarters commencing after the
date hereof under all such leases (including payments required to be
made by the lessee in respect of taxes and insurance, whether or not
denominated as rent), shall not exceed for such period (a) $2,000,000
or (b) $7,500,000 following the time at which the Partnership shall
have achieved EBITDA for any period of four consecutive quarters in
an amount not less than $45.0 million; provided, further, that the
Mortgagor may designate certain such leases which are not material to
the operations of the Casino Hotel and which have aggregate fixed
rental payments (including payments required to be made by the lessee
in respect of taxes and insurance, whether or not denominated as
rent) not exceeding an aggregate of $300,000 per
(11)
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year to be excluded from the leases covered by this clause (2); and
(3) any and all modifications, extensions and renewals of the
leases described in clauses (1) and (2) above, to the extent the same
are permitted under Section 5.18.
"F,F&E Financing Agreement" has the meaning set forth in Section
1.1 of the Senior Note Indenture.
"Full Insurable Value" means the actual replacement cost
(excluding the costs of foundation, footing, excavation, paving,
landscaping and other similar, noninsurable improvements) of the
insurable properties in question.
"Holder" has the meaning set forth in Section 1.1 of the Senior
Note Indenture.
"Hotel" means that portion of the Casino Hotel not included
within the Casino.
"Impositions" has the meaning set forth in Section 5.7.
"Indebtedness" has the meaning set forth in Section 1.1 of the
Senior Note Indenture.
"Independent" when used with respect to any specified Person
means such a Person who (i) is in fact independent, (ii) does not
have any direct financial interest or any material indirect financial
interest in Mortgagor or in any other obligor upon the Senior
Partnership Note or in any Affiliate of Mortgagor or of such other
obligor and (iii) is not connected with Mortgagor or such other
obligor or any Affiliate of Mortgagor or such other obligor as an
officer, employee,, promoter, underwriter, trustee, partner, director
or person performing similar functions. Whenever it is herein
provided that any Independent Person's opinion or certificate shall
be furnished to Mortgagee, such Person shall be appointed by a
Mortgagor order and such opinion or certificate shall state that the
signer has read this definition and that the signer is Independent
within the meaning thereof. A Person who is performing or who has
performed services as an independent contractor to any specified
Person shall not be considered not Independent merely by reason of
the fact that such Person is performing or has performed such
services.
"Insurance Amount" has the meaning set forth in Section
5.10(a)(i).
"Insurance Requirements" means all terms of any insurance policy
covering or applicable to the Trust Estate or any part thereof, all
requirements of the issuer of any such policy, and
(12)
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all orders, rules, regulations and other requirements of the National
Board of Fire Underwriters (or any other body exercising similar
functions) applicable to or affecting the Trust Estate or any part
thereof or any use or condition of the Trust Estate or any part
thereof.
"Insurance Trustee" means the Trustee or, if the Trustee so
elects, any bank, trust company or insurance company with a net worth
in excess of $100,000,000, designated by the Trustee.
"Insurer" means (i) an insurance company or companies
selected by Mortgagor authorized to issue insurance in the State of
New Jersey with an A.M. Best rating level of A minus or better and an
A.M. Best financial size category of VIII or better or (ii) Lloyds of
London so long as its financial capacity is not such that prudent
owners of first-class casino and hotel complexes in Atlantic City,
New Jersey would be unwilling to accept Lloyds of London; provided,
that with respect to the insurance required to be maintained pursuant
to Section 5.10(a)(i), up to 1.0% of the total amount of such
insurance in excess of the first $10,000,000 thereof may be
maintained with an insurance company or companies not meeting the
foregoing A.M. Best rating level and/or A.M. Best financial size
categories; and provided, further, that Mortgagor shall in all events
use commercially reasonable efforts to obtain insurance issued by
insurance companies having an A.M. Best rating level of better than A
minus.
"Land" means, collectively, the Owned Land and the Leased Land.
"Lease" means each lease or sublease (made by Mortgagor, as
lessor or sublessor, as the case may be) of any space in any building
or buildings, an interest in which building or buildings constitutes
a part of the Trust Estate, including every agreement relating
thereto or entered into in connection therewith and every guarantee
of the performance and observance of the covenants, conditions and
agreements to be performed by the lessee or sublessee under any such
lease or sublease. For purposes hereof, the term "Lease" shall
include any license agreement, concession agreement or other
occupancy agreement. Notwithstanding the foregoing, the term "Lease"
shall not include any transient room rentals.
"Leased Facilities" means, collectively, the Leased Land and any
buildings and improvements now or hereafter located thereon.
"Leased Land" means, collectively, the Marina Lease and any
other land that is now or hereafter subject to a Facility Lease.
"Legal Requirements" means all laws, statutes, codes, acts,
ordinances, orders, judgments, decrees, injunctions, rules,
(13)
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regulations, permits, licenses, authorizations, directions and
requirements (including, without limitation, the New Jersey Casino
Control Act, the New Jersey Environment Cleanup Responsibility Act
and the New Jersey Spill Compensation and Control Act of 1976) of all
governments, departments, commissions, boards, courts, authorities,
agencies, officials and officers, of governments, federal, state and
municipal (including, without limitation, the New Jersey Department
of Environmental Protection and Energy, the Atlantic City Bureau of
Investigations, the Division of Gaming Enforcement of the State of
New Jersey, and the Casino Control Commission of the State of New
Jersey), foreseen or unforeseen, ordinary or extraordinary, which now
are or at any time hereafter become applicable to the Trust Estate or
any part thereof, or any of the adjoining sidewalks, or any use or
condition of the Trust Estate or any part thereof, including, without
limitation, the use of the Casino Hotel as a gaming or gambling
facility.
"Lessors" means the lessors under the Facility Leases.
"Marina Lease" means the lease agreement made September 1, 1990
between the State of New Jersey, as Landlord, and Mortgagor, as
tenant, respecting property known as the Senator Frank S. Farley
State Marina, Atlantic City, New Jersey, being designated as a
portion of Block B-4, Lot 11 on the tax map of the City of Atlantic
City, Atlantic County, New Jersey, as more particularly described on
Schedule A appended hereto and made a part hereof, together with all
amendments, restatements, extensions and renewals of said lease
agreement.
"Maturity" when used with respect to any Indebtedness means the
date on which the principal (or any portion thereof) of such
Indebtedness becomes due and payable as therein or herein provided,
whether at the Stated Maturity, upon acceleration, optional
redemption, required repurchase, scheduled principal payment or
otherwise.
"Midlantic Mortgage" means the Amended and Restated Indenture
of Mortgage, dated as of May 29, 1992, from the Mortgagor to
Midlantic National Bank, the Amended and Restated Assignment of
Leases and Rents, dated as of May 29, 1992, between the same parties,
and the Amended and Restated Assignment of Operating Assets, dated as
of May 29, 1992, between the same parties and all amendments,
restatements, extensions and renewals thereof.
"Midlantic Term Loan" has the meaning set forth in Section 1.1
of the Mortgage Note Indenture.
"Mortgage Documents" has the meaning set forth in Section 1.1 of
the Mortgage Note Indenture, except that the term
(14)
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"Mortgage Documents" shall not include the Pledge Agreement (as
defined in said Section 1.1).
"Mortgage Note Indenture" means that certain indenture of even
date herewith among the Company, as issuer, the Mortgagor, as
guarantor, and First Bank National Association, as trustee, as it may
be amended from time to time, relating to the Company's Mortgage
Notes.
"Mortgage Notes" means the 11-3/4% Mortgage Notes due 2003
issued by the Company pursuant to the Mortgage Note Indenture.
"Mortgagee" has the meaning set forth in Section 1.12.
"Mortgagor" means the Person named as "Mortgagor" in the first
paragraph of this instrument until a successor entity shall have
become such pursuant to the applicable provisions of this Mortgage,
and thereafter, except to the extent otherwise contemplated by
Section 4.2, "Mortgagor" shall mean such successor entity
exclusively.
"Mortgagor Order" and "Mortgagor Request" mean, respectively, a
written order or request signed with a Mortgagor Signature and
delivered to Mortgagee.
"Mortgagor Signature" means the signature of the President or a
Vice President or a general partner of Mortgagor.
"Mortgagor's Certificate" means a certificate signed with a
Mortgagor Signature and delivered to Mortgagee.
"Notices" has the meaning set forth in Section 1.2.
"Operating Assets" has the meaning set forth in Granting Clause
Sixth.
"Opinion of Counsel" means a written opinion of counsel who may
(except as otherwise expressly provided in this Mortgage) be an
employee of Mortgagor or of an Affiliate of Mortgagor.
"Original Policy" means the ALTA Loan Policies of
Title Insurance issued by First American Title Insurance Company,
Chicago Title Insurance Company and Commonwealth Land Title Insurance
Company, pursuant to Title Commitment. No. F237584L, dated the date
hereof.
"Outstanding Amount" has the meaning set forth in
Section 1.1 of the Senior Note Indenture.
"Owned Land" has the meaning set forth in Granting Clause First.
(15)
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"Permits" means all licenses, franchises, authorizations,
statements of compliance, certificates of operation, certificates of
occupancy and permits required for the lawful ownership, occupancy,
operation and use of all or a material portion of the Premises
whether held by Mortgagor or any other Person (which may be temporary
or permanent) (including, without limitation, those required for the
use of the Casino Hotel as a licensed casino facility), in accordance
with all applicable Legal Requirements.
"Permitted Encumbrances" means:
(1) liens for taxes, assessments, or governmental charges not
yet due and payable, or if due and payable not
delinquent, to the extent that any fine, penalty, interest or cost
may be added for nonpayment thereof;
(2) Existing Encumbrances (including the Midlantic Mortgage);
(3) F,F&E Financing Agreements permitted by the Senior Note
Indenture;
(4) the liens of the Trustee provided for in Section 6.6 of the
Senior Note Indenture and of the trustees under the corresponding
sections of the Mortgage Note Indenture and the PIK Note Indenture;
(5) any lien or encumbrance which, under the provisions of
Section 5.7, constitutes a Permitted Encumbrance;
(6) Restricted Encumbrances;
(7) Working Capital Facility Mortgage;
(8) the Liens of the Senior Note Mortgage Documents (as defined
in the Senior Notes Indenture) and the Mortgage Documents, and any
rights granted as provided therein;
(9) any lien or encumbrance permitted under Section 5.3 of this
Mortgage;
(10) any lien or encumbrance securing purchase money
indebtedness permitted by the Senior Note Indenture;
(11) modifications, refinancings, extension, renewals or
replacements, in whole or in part, of the liens described in clauses
(2) through (10) of this definition to the extent permitted by
Section 5.19 hereof and the Senior Note Indenture; and
(12) any Facility Lease now existing or hereafter entered into.
(16)
<PAGE>
"Person" means any individual, corporation, limited or general
partnership, joint venture, association, joint stock company, trust,
unincorporated organization or any other entity or government or any
agency or political subdivision thereof.
"PIK Note Indenture" means that certain indenture of even date
herewith among the Company, as issuer, the Mortgagor, as guarantor,
and First Bank National Association, as trustee, as it may be amended
from time to time, relating to the Company's PIK Notes.
"PIK Notes" means the Company's 13 7/8% Pay-in-Kind Notes due
2005.
"Premises" has the meaning set forth in Granting Clause Fourth.
"Restoration" has the meaning set forth in Section 5.10(e)(iii).
"Restricted Encumbrances" means any Leases permitted by and made
in accordance with Section 5.12 of this Mortgage.
"Securities Act" has the meaning set forth in
Section 1.1 of the Senior Note Indenture.
"Senior Assignment Agreement" means the Senior Assignment
Agreement of even date herewith made by Trump's Castle Funding, Inc.
to the Trustee and acknowledged by Mortgagor, providing for the
assignment to the Trustee of the Senior Partnership Note and this
Senior Note Mortgage.
"Senior Guarantee" means the guarantee by Mortgagor of the
Company's Indenture Obligations (as defined in the Senior Indenture)
pursuant to Article Fourteen of the Senior Indenture.
"Senior Guarantee Mortgage" means the Indenture of Mortgage and
Security Agreement of even date herewith between the Trustee, as
mortgagee, and Mortgagor, as mortgagor, securing the Senior Guarantee
and evidencing a lien pari passu with this Mortgage.
"Senior Indebtedness" means Indebtedness evidenced by the
Midlantic Term Loan, the Senior Partnership Note, the Senior
Guarantee and the Working Capital Facility and any amendments,
extensions, renewals, replacements or restatements of any of the
foregoing to the extent permitted by the Senior Note Indenture.
"Senior Note Indenture" means that certain indenture of even
date herewith between the Mortgagee, as issuer, the Mortgagor, as
guarantor, and First Bank National Association, as trustee, relating
to the Senior Notes.
(17)
<PAGE>
"Senior Note Mortgage" means this Indenture of Mortgage and
Security Agreement, which evidences a lien pari passu with the Senior
Guarantee Mortgage.
"Senior Notes" means the 11.5% Senior Secured Notes due 2000
issued by the Mortgagee under the Senior Note Indenture.
"Senior Partnership Note" means that certain promissory note of
even date herewith in the original principal amount of $27,000,000
made by the Mortgagor in favor of the Mortgagee, a copy of which is
attached to the Senior Note Indenture, and any amendments,
extensions, renewals, replacements or restatements thereof.
"Settlement Costs" has the meaning set forth in Section 5.17.
"Stated Maturity" when used with respect to any Indebtedness,
means the date specified in such Indebtedness as the fixed date on
which the principal of such Indebtedness is due and payable.
"Superior Instrument Requirements" means the applicable terms,
conditions and provisions of any documentation which constitutes,
evidences, secures or governs any Senior Indebtedness, together with
the terms and provisions of the Marina Lease.
"Superior Mortgage" means the Midlantic Mortgage and any
modification, extension, renewal or restatement thereof which
complies with the provisions of Section 5.19 hereof and with the
Senior Note Indenture.
"Taking" means the acquisition or condemnation by eminent domain
of the whole or any part of the Premises, by a competent authority,
for any public or quasi-public use or purpose.
"Tangible Personal Property" has the meaning set forth
in subclause (f) of Granting Clause Sixth.
"Trust Estate" has the meaning stated in the habendum to the
Granting Clauses.
"Trust Indenture Act" has the meaning set forth in Section 1.1
of the Trust Indenture.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of the Senior Note Indenture and any successor thereto.
(18)
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<PAGE>
"Uniform Commercial Code" means the New Jersey Uniform
Commercial Code N.J.S.A. 12A:1-101, et seq.
"Working Capital Facility" has the meaning set forth in Section
1.1 of the Senior Note Indenture.
"Working Capital Facility Mortgage" means any mortgage or other
security instrument or agreement which secures a Working Capital
Facility and which evidences a lien pari passu with the lien of the
Senior Note Mortgage.
Section 1.2. Notices.
(a) Any request, demand, authorization, direction, notice
(including, without limitation, a notice of default), consent, waiver
or other document provided or permitted by this Mortgage to be made
upon, given or furnished to, or filed with, Mortgagor, Mortgagee or
the Trustee (collectively, "Notices") shall be in writing and shall
be deemed given either (i) when delivered by hand (including by
overnight courier) or (ii) two days after sending by registered or
certified mail, postage prepaid, addressed as follows:
To Mortgagor:
Trump's Castle Associates
Trump's Castle Casino Resort
Brigantine Boulevard and Huron Avenue
Atlantic City, New Jersey 08401
Attn: Chief Financial Officer
and
Willkie Farr & Gallagher
One Citicorp Center
153 East 53rd Street
New York, New York 10022
Attn: Thomas M. Cerabino, Esq.
To Mortgagee:
Trump's Castle Funding, Inc.
Trump's Castle Casino Resort
Brigantine Boulevard and Huron Avenue
Atlantic City, New Jersey 08401
Attn: Chief Financial Officer
and
(19)
<PAGE>
Willkie Farr & Gallagher
One Citicorp Center
153 East 53rd Street
New York, New York 10022
Attn: Thomas M. Cerabino, Esq.
To the Trustee:
First Bank National Association
c/o First Trust National Association
180 East Fifth Street
St. Paul, Minnesota 55101
Attn: Corporate Trust Department
(b) By Notice to Mortgagor, Mortgagee and the Trustee, any
party may designate additional or substitute addresses for Notices
which, notwithstanding Subsection (a) above, shall be deemed given
when received. So long as the Assignment Agreement is in effect, all
Notices to and from Mortgagee shall be given solely to and by the
Trustee.
Section 1.3. Form and Contents of
Documents Delivered to Mortgagee.
Whenever several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary
that all such matters be certified by, or covered by the opinion of,
only one such Person, or that they be so certified or covered by only
one document, but one such Person may certify or give an opinion with
respect to some matters and one or more other such Persons as to
other such matters in one or several documents.
Any certificate or opinion of a general partner of Mortgagor may
be based, insofar as it relates to legal matters, upon a certificate
or opinion of, or representations by, counsel, unless such general
partner knows that the certificate or opinion or representations with
respect to the matters upon which his certificate or opinion is based
are erroneous. Any Opinion of Counsel may be based, insofar as it
relates to factual matters, upon a certificate or opinion of, or
representations by, a general partner of Mortgagor stating that the
information with respect to such factual matters is in the possession
of Mortgagor, unless such counsel knows that the certificate or
opinion or representations with respect to such matters are
erroneous. If appropriate to the matter being opined upon and to the
extent not prohibited by the Senior Note Indenture Act, conclusions
stated in any Opinion of Counsel may be subject to rights of
creditors and the availability of equitable remedies.
Whenever any Person is required to make, give or execute two or
more applications, requests, consents, certificates,
(20)
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statements, opinions or other instruments under this Mortgage, they
may, but need not, be consolidated to form one instrument.
Whenever in this Mortgage, in connection with any application or
certificate or report to Mortgagee, it is provided that Mortgagor
shall deliver any document as a condition of the granting of such
application, or as evidence of Mortgagor's compliance with any term
hereof, it is intended that the truth and accuracy, at the time of
the granting of such application or at the effective date of such
certificate or report (as the case may be), of the facts and opinions
stated in such document shall in such case be conditions precedent to
the right of Mortgagor to have such application granted or to the
sufficiency of such certificate or report.
Every application, certificate, report, affidavit, opinion,
consent, statement or other instrument required to be delivered to
Mortgagee under this Senior Note Mortgage shall be in writing and
shall be prepared and delivered without cost or expense to Mortgagee.
Section 1.4. Compliance Certificates and Opinions.
Upon any application or request by Mortgagor to Mortgagee to
take any action under any provision of this Senior Note Mortgage,
Mortgagor shall furnish to Mortgagee a Mortgagor's Certificate
stating that all conditions precedent, if any, provided for in this
Senior Note Mortgage relating to the proposed action have been
complied with and an Opinion of Counsel stating that in the opinion
of such counsel all such conditions precedent, if any, have been
complied with, except that in the case of any such application or
request as to which the furnishing of such documents is specifically
required by any provision of this Senior Note Mortgage relating to
such particular application or request, no additional certificate or
opinion need be furnished. Every certificate or opinion with respect
to compliance with a condition or covenant provided for in this
Senior Note Mortgage shall include:
(a) a statement that each individual signing such certificate
or opinion has read such condition or covenant and the definitions
herein relating thereto;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(c) a statement that, in the opinion of each such individual,
he has made such examination or investigation as is necessary to
enable him to express an informed opinion as to whether or not such
condition or covenant has been complied with; and
(21)
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(d) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 1.5. Effect of Headings and Table of Contents.
The Article and Section headings herein and in the Table of
Contents are for convenience only and shall not affect the
construction hereof.
Section 1.6. Successors and Assigns; Amendments.
(a) Subject to the provisions of Sections 1.10 and 4.2 hereof
and Sections 3.11 and 8.2 of the Senior Note Indenture, and without
limiting the generality of Section 1.12 hereof, this Mortgage shall
be binding upon and inure to the benefit of the parties hereto and of
the respective successors and assigns of the parties hereto to the
same effect as if each such successor or assign were in each case
named as a party to this Mortgage.
(b) This Senior Partnership Note Mortgage may not be modified,
amended, discharged, released nor any of its provisions waived except
by agreement in writing executed by Mortgagor and Mortgagee and in
accordance with the provisions of this Mortgage and the Senior Note
Indenture.
Section 1.7. Separability Clause.
In case any provision in this Mortgage or the Senior Partnership
Note shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
Section 1.8. Benefits of Mortgage.
Without limiting the generality of Section 1.12, nothing in this
Mortgage or in the Senior Partnership Note, express or implied, shall
give to any Person, other than the parties hereto and their
successors and assigns, any benefit or any legal or equitable right,
remedy or claim under this Mortgage.
Section 1.9. Governing Law.
This Senior Partnership Note Mortgage shall be deemed to be a
contract under the laws of the State of New Jersey and shall be
construed in accordance with and governed by the laws of the State of
New Jersey.
Section 1.10. Limitation on Liability.
Notwithstanding anything herein or in any other agreement,
document, certificate, instrument, statement or omission referred
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to below to the contrary, Mortgagor is liable hereunder only to the
extent of the assets of Mortgagor and no other person or entity,
including, without limitation, any partner, officer, committee or
committee member of Mortgagor or any partner therein or in any
partnership Affiliate of Mortgagor, or any incorporator, officer,
director or shareholder of any corporate partner of Mortgagor or of
any corporate Affiliate of Mortgagor, or any Affiliate or controlling
person or entity of any of the foregoing, or any agent, employee, or
lender of any of the foregoing, or any successor, personal
representative, heir or assign of any of the foregoing, in each case
past, present or as they may exist in the future, shall be liable in
any respect (including, without limitation, the breach of any
representation, warranty, covenant, agreement, condition or
indemnification or contribution undertaking contained herein or
therein) under, in connection with, arising out of or relating to
this Senior Note Mortgage, or any other agreement, document,
certificate, instrument or statement (oral or written) related to,
executed or to be executed, delivered or to be delivered, or made or
to be made, or any omission made or to be made, in connection with
any of the foregoing or any of the transactions contemplated in any
such agreement, document, certificate, instrument, or statement. Any
agreement, document, certificate, statement or other instrument to be
executed simultaneously with, in connection with, arising out of or
relating to this Mortgage or any other agreement, document,
certificate, statement or instrument referred to above, or any
agreement, document, certificate, statement or instrument
contemplated hereby shall contain language mutatis mutandis to this
Section 1.10 and, if such language is omitted, shall be deemed to
contain such language.
Section 1.11. Provisions Required by Senior Note Indenture.
Whenever the provisions of this Senior Note Mortgage and the
provisions of the Senior Note Indenture shall be inconsistent, the
provisions of the Senior Note Indenture shall govern.
Section 1.12. References to Mortgagee
and/or to Trustee; Rights of Trustee.
(a) Whenever reference is made in this Mortgage to the rights,
powers and remedies of Mortgagee or to Notices to or by Mortgagee,
the same shall apply to Trump's Castle Funding, Inc. only so long as
Trump's Castle Funding, Inc. is the holder of this Mortgage and the
Senior Partnership Note. Subsequent to the assignment thereof on the
date of and pursuant to the Senior Assignment Agreement by Trump's
Castle Funding, Inc. to the Trustee (who shall have and hold all such
rights, powers and remedies on behalf of the Holders in accordance
with the terms of the Senior Note Indenture) and for so long as there
shall not have been effected a cancellation and discharge of the
assignment pursuant to Article V of the Senior Assignment Agreement,
such
(23)
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rights, powers and remedies of Mortgagee and any Notices to or by
Mortgagee, shall apply only to the Trustee with the same force and
effect as if (i) such rights, powers and remedies were specifically
granted by this Senior Note Mortgage and the Senior Partnership Note
directly to the Trustee and (ii) the Trustee were the named Mortgagee
with respect to the giving and receiving of Notices under Section
1.2. Upon such assignment of this Senior Note Mortgage, the Trustee
shall be named in lieu of Trump's Castle Funding, Inc., as a named
insured under the policies of insurance set forth in Section 5.10
hereof (except that with respect to the policy described in Section
5.10(a)(iii) of this Mortgage, Trump's Castle Funding, Inc. may, at
Mortgagor's election, be named as an additional insured).
(b) So long as there shall not have been effected a
cancellation and discharge of the assignment pursuant to Article V of
the Senior Assignment Agreement, except as otherwise provided in
Section 6.2 of the Senior Note Indenture:
(1) Mortgagee may rely, and shall be protected in acting
or refraining from acting, upon any resolution, certificate,
statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence
of indebtedness or other paper or document believed by it to be
genuine and to have been signed or presented by the proper party
or parties;
(2) any request or direction of Mortgagor mentioned herein
shall be sufficiently evidenced by a Mortgagor Request or
Mortgagor Order;
(3) whenever in the administration of this Mortgage,
Mortgagee shall deem it desirable that a matter be proved or
established prior to taking, suffering or omitting any action
hereunder, Mortgagee (unless other evidence be herein
specifically prescribed) may, in the absence of bad faith on its
part, rely upon a Mortgagor's Certificate;
(4) Mortgagee may consult with counsel and any written
advice of such counsel or any Opinion of Counsel shall be full
and complete authorization and protection in respect of any
action taken, suffered or omitted by Mortgagee hereunder in good
faith and in reliance thereon;
(5) Mortgagee shall be under no obligation to exercise any
of the rights or powers vested in it by this Mortgage at the
request or direction of any of the Holders pursuant to the
Senior Note Indenture, unless such Holders shall have offered to
Mortgagee reasonable security or indemnity against the costs,
expenses and liabilities which might be incurred therein or
thereby in compliance with such request or direction;
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(6) Mortgagee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request,
direction, consent, order, approval, appraisal, bond, debenture,
note, coupon, security or other paper or document but Mortgagee,
in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit, and,
if Mortgagee shall determine to make such further inquiry or
investigation, it shall be entitled (subject to the express
limitations with respect thereto contained in this Senior Note
Mortgage) to examine the books, records and premises of
Mortgagor, personally or by agent or attorney;
(7) Mortgagee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by
or through agents or attorneys, and Mortgagee shall not be
responsible for any misconduct or negligence on the part of any
agent or attorney appointed with due care by it hereunder;
(8) Mortgagee shall not be personally liable, in case of
entry by it upon the Trust Estate, for debts contracted or
liabilities or damages incurred in the management or operation
of the Trust Estate;
(9) Mortgagor shall pay or cause to be paid to the Trustee
all compensation and other amounts provided in Section 6.6 of
the Senior Note Indenture; and
(10) no provision of this Mortgage shall require Mortgagee
to expend or risk its own funds or otherwise incur any financial
liability in the performance of its obligations hereunder, or in
the exercise of any of its rights or powers.
(c) The provisions of Section 1.12(a) shall apply to all
Mortgage Documents executed in favor of Trump's Castle Funding, Inc.
The provisions of Section 1.12(b) shall apply to all Mortgage
Documents.
Section 1.13. Mortgage Subject to Casino Control Act.
Each provision of this Senior Note Mortgage is subject to and
shall be enforced in compliance with the provisions of the New Jersey
Casino Control Act.
Section 1.14. Discharge of Lien.
If (a) Mortgagor shall pay or cause to be paid, or there shall
otherwise be paid, to Mortgagee all amounts required to be
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paid by Mortgagor pursuant to this Mortgage and the Senior Note and
the conditions precedent for the Senior Note Indenture to cease,
determine and become null and void (except for any surviving rights
of transfer or exchange of the Senior Secured Notes provided in
Section 13.1 of the Senior Note Indenture and for the obligation to
pay the Trustee's fees and expenses provided in Section 6.6 of the
Senior Note Indenture) in accordance with Section 13.1 of the Senior
Note Indenture shall have occurred, or (b) there shall have occurred
a "defeasance" (as defined in Section 4.2 of the Senior Note
Indenture) of the Mortgage Senior Secured Notes, or (c) there shall
have occurred a "covenant defeasance" (as defined in Section 4.3 of
the Trust Indenture), then in any such case Mortgagee shall promptly
cancel and discharge this Mortgage, and any financing statements
filed in connection herewith and execute and deliver to Mortgagor all
such instruments as may be necessary, required or appropriate to
evidence such discharge and satisfaction of said lien or liens.
Section 1.15. General Application.
(a) The remedies of Mortgagee upon any default by Mortgagor in
the fulfillment of any of its obligations hereunder shall be limited
in each instance by the provisions of Section 1.10, whether or not
the provisions providing for such remedies explicitly refer to such
Section.
(b) The assertion of any rights upon any Default shall be
subject in each instance to, if required, the giving of any notice
and the expiration of any grace period provided for in Section 3.1 as
a condition to such Default becoming an Event of Default, unless the
Senior Note Indenture Act requires otherwise, in which case the
Senior Note Indenture Act shall control.
(c) For the purposes of this Senior Note Mortgage, it is
understood that an event which does not materially diminish the value
of Mortgagee's interest in the Trust Estate shall not be deemed an
"impairment of security," as that phrase is used in this Mortgage.
Section 1.16. Senior Note Mortgage Deemed to be Security Agreement.
To the extent that the grant of a security interest in any
portion of the Trust Estate is governed by the Uniform Commercial
Code, this Senior Note Mortgage is hereby deemed to be as well a
security agreement under the Uniform Commercial Code for the purpose
of creating hereby a security interest in all of Mortgagor's right,
title and interest in and to said property, securing the obligations
secured hereby, for the benefit of Mortgagee.
Section 1.17. No Duplication of Notices or Payments.
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Whenever it is provided in this Senior Note Mortgage and the
Senior Guarantee Mortgage that Mortgagor shall deliver any notice or
document, or is required to make any payment, the delivery of such
notice or document or the making of such payment shall constitute the
delivery of such notice or document or the making of such payment in
satisfaction of the terms, conditions and provisions of both this
Senior Note Mortgage and the Senior Guarantee Mortgage, provided that
such notice, document or payment states, or is accompanied by a
letter stating, that such notice, document or payment is being
delivered in satisfaction of the terms, conditions and provisions of
both this Mortgage and the Guarantee Mortgage.
ARTICLE TWO
RELEASE; SUBORDINATION
Section 2.1. Possession by Mortgagor.
So long as there shall have been no acceleration of maturity of
the Senior Partnership Note under Section 3.2, Mortgagor shall be
suffered and permitted, with power freely and without let or
hindrance on the part of Mortgagee, subject to the provisions of this
Mortgage and the Senior Note Indenture, to possess, use, manage,
operate and enjoy the Trust Estate and every part thereof and to
collect, receive, use, invest and dispose of the rents, issues,
tolls, profits, revenues and other income from the Trust Estate or
any part thereof, to use, consume and dispose of any consumables,
goods, wares and merchandise in the ordinary course of business of
operating the Casino Hotel and to adjust and settle all matters
relating to choses in action, leases and contracts.
Section 2.2. Obsolete Property.
Mortgagor shall have the right, at any time and from time to
time, unless an Event of Default shall have occurred and be
continuing, without any release from or consent by Mortgagee:
(a) to sell or dispose of, free from the lien of this Mortgage,
any Tangible Personal Property which, in its reasonable opinion, may
have become obsolete or unfit for use or which is no longer necessary
in the conduct of its businesses or the operation of the Trust
Estate, and no purchaser of any such property shall be bound to
inquire into any question affecting Mortgagor's right to sell or
otherwise dispose of the same free from the lien of this Mortgage;
(b) to alter, repair, replace, change the location or position
of and add to any Tangible Personal Property; provided, however, that
no change shall be made in the location of any such
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property subject to the lien of this Mortgage which would in any
respect impair the security of this Mortgage upon such property; or
(c) to renew, extend, surrender, terminate, modify or amend any
leases of Tangible Personal Property, when, in Mortgagor's reasonable
opinion, it is prudent to do so.
Mortgagor shall retain any net cash proceeds received from the
sale or disposition of any Tangible Personal Property under
Subsection (a) of this Section 2.2, in the business of operating the
Casino Hotel.
Mortgagee shall be under no responsibility or duty with respect
to the exercise of the rights of Mortgagor under this Section 2.2 or
the application of the proceeds of any sale or disposition of any
Tangible Personal Property.
Mortgagee shall, from time to time, promptly execute any written
instrument in form satisfactory to Mortgagee to confirm the propriety
of any action taken by Mortgagor under this Section 2.2, upon receipt
by Mortgagee of a Mortgagor Request requesting the same, together
with a Mortgagor's Certificate stating that the action so to be
confirmed was duly taken in conformity with this Section 2.2, and
that the execution of such written instrument is appropriate to
confirm the propriety of such action under this Section 2.2;
provided, that Mortgagee shall have no liability thereunder and all
costs and expenses (including, without limitation, reasonable
attorneys' fees and disbursements) shall be paid by Mortgagor.
Section 2.3. F,F&E Financing Agreements.
Notwithstanding any provision contained in this Mortgage or the
Senior Note Indenture to the contrary, if Mortgagor acquires Tangible
Personal Property and/or other items constituting operating assets
subject to any F,F&E Financing Agreement, or becomes the lessee under
a lease for any of the same and if the document evidencing such F,F&E
Financing Agreement prohibits subordinate liens or the provisions of
any such lease prohibits any assignment thereof by the lessee, and if
any such prohibition is customary with respect to similar
transactions of the lender or lessor (as evidenced by a Mortgagor's
Certificate delivered to Mortgagee, together with such other evidence
as Mortgagee may reasonably request), as the case may be, then the
property so purchased or the lessee's interest in the lease, as the
case may be, shall be deemed to be Excepted Property. If any such
F,F&E Financing Agreement permits subordinate liens, then Mortgagee
shall execute and deliver to Mortgagor, at Mortgagor's expense, such
documents as the holder of such F,F&E Financing Agreement may
reasonably request to evidence the subordination of the lien of this
Mortgage and the Mortgage Documents to the lien of such
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F,F&E Financing Agreement; provided, however, that Mortgagee shall
have no obligation to execute and deliver such documents, and the
lien of this Mortgage shall not be subordinate to any such F,F&E
Financing Agreement, unless (a) such F,F&E Financing Agreement shall
contain a provision binding upon the holder of such F,F&E Financing
Agreement that (i) if the holder of such F,F&E Financing Agreement
shall give to Mortgagor any notice of default thereunder, such holder
shall at the same time and in the same manner serve a copy of such
notice on Mortgagee at the address designated herein (or such other
address as Mortgagee may designate by notice given to the holder of
such F,F&E Financing Agreement in the manner provided for notices
hereunder), and that no such notice to Mortgagor shall be deemed to
have been duly given unless and until a copy thereof has been so
provided to Mortgagee, and (ii) promptly following the last date upon
which Mortgagor may cure such default, if Mortgagor shall fail to
cure such default, the holder of such F,F&E Financing Agreement shall
give notice to Mortgagee stating the manner in which Mortgagor shall
have failed to cure its said default, in which event Mortgagee shall
be permitted to cure the default and, with respect thereto, Mortgagee
shall have the same amount of time, after such notice, within which
to cure the said default, as is provided for under the provisions of
such F,F&E Financing Agreement to be given to Mortgagor therefor
after notice or (b) Mortgagor delivers to Mortgagee a Mortgagor's
Certificate certifying that (i) the provision described in clause (a)
is not customarily included by the lender or lessor in its F,F&E
Financing Agreements in similar transactions and (ii) although
Mortgagor has used reasonable efforts to have included in such F,F&E
Financing Agreement such a provision, Mortgagor has been unsuccessful
in obtaining such a provision.
ARTICLE THREE
REMEDIES
Section 3.1. Events of Default.
"Event of Default," whenever used herein, means any one of the
following events (including any applicable notice requirement and any
period of grace, as specified in this Section 3.1) (whatever the
reason for such event and whether it shall be voluntary or
involuntary or be effected by operation of law or pursuant to any
judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body):
(a) default in the payment of any interest on the Senior
Partnership Note when such interest becomes due and payable and
continuance of such default for a period of 30 days; or
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(b) default in the payment of all or any portion of the
principal of (or premium, if any, on) the Senior Partnership Note
when the same becomes due and payable at its Maturity; or
(c) default in the payment of any other sum due under the
Senior Partnership Note or this Senior Note Mortgage, and the
continuance of such default for a period of 30 days after there has
been given to Mortgagor a notice specifying such default and
requiring it to be remedied and stating that such notice is a "Notice
of Default" hereunder; or
(d) default in the performance, or breach, of any
covenant of Mortgagor in this Senior Note Mortgage (other than a
covenant, a default in the performance or breach of which is
elsewhere in this Section 3.1 specifically dealt with), and
continuance of such default or breach for a period of 30 days after
there has been given to Mortgagor a notice specifying such default or
breach and requiring it to be remedied and stating that such notice
is a "Notice of Default" hereunder, unless (i) the default or breach
is of such a nature that is curable but not susceptible of being
cured with due diligence within such 30-day period (for reasons other
than the lack of funds), (ii) Mortgagor delivers an Mortgagor's
Certificate to Mortgagee within such 30-day period stating (A) the
applicability of the provisions of clause (i) to such default or
breach, (B) Mortgagor's intention to remedy such default or breach
with reasonable diligence and (C) the steps which Mortgagor has
undertaken or intends to undertake to remedy such default or breach
and (iii) Mortgagor delivers to Mortgagee additional Mortgagor's
Certificates every 30 days thereafter updating the information
contained in the certificate described in clause (ii), in which case
such 30-day period shall be extended for such further period of time
(but in no event more than 60 days after the last day of such 30-day
period) as may reasonably be required to cure the same, provided that
Mortgagor is then proceeding and thereafter continues to proceed to
cure the same with reasonable diligence; or
(e) an "Event of Default," as defined in Section 5.1 of the
Senior Note Indenture, shall occur and be continuing; or
(f) default by the Partnership, the Issuer or any of the
Subsidiaries under any Indebtedness, whether such Indebtedness now
exists or shall hereafter be created, if such default would permit
the holders of such Indebtedness to cause, or has resulted in,
acceleration of the maturity of such Indebtedness, in an aggregate
principal amount in excess of $5,000,000;
(g) default in the performance, or breach, of any of the
provisions of Article Four hereof; or
(h) if any representation or warranty of Mortgagor set forth in
this Senior Note Mortgage or in any notice, certificate,
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demand or request delivered to Mortgagee pursuant to this Mortgage
shall prove to be incorrect in any material respect as of the time
when made.
An Event of Default shall not be deemed to exist by reason of
any event which Mortgagor is contesting in compliance with the
provisions of Section 5.8.
Section 3.2. Acceleration of Maturity;
Recision and Annulment.
If an Event of Default (other than an Event of Default specified
in Section 5.1(f) or (g) of the Senior Note Indenture) occurs and is
continuing, then, and in every such case, Mortgagee may declare the
Outstanding Amount of the Senior Partnership Note to be due and
payable immediately, by a notice in writing to Mortgagor and upon any
such declaration such principal shall become immediately due and
payable. If an Event of Default specified in such Section 5.1(f) or
(g) occurs, the Outstanding Amount of the Senior Partnership Note
shall ipso facto become due and payable without any declaration or
other act on the part of the Mortgagee.
If at any time after such declaration of acceleration has been
made, but before any judgment or decree for payment of money due on
the Senior Partnership Note has been obtained by the Mortgagee, such
declaration of acceleration and its consequences has been duly
rescinded and annulled in accordance with Section 5.2 of the Senior
Note Indenture, then the declaration of acceleration pursuant to this
Section 3.2 shall automatically be rescinded and annulled.
No such rescission and annulment shall affect any subsequent
default or impair any right consequent thereon.
Section 3.3. Application of Moneys Received by Mortgagee.
Any moneys received by Mortgagee pursuant to the provisions of
this Article Three (including moneys received by the Trustee after
any action or act by Mortgagee under Section 3.10) shall be applied
by Mortgagee in accordance with the provisions of Section 5.6 of the
Senior Note Indenture.
Section 3.4. Restoration of Rights and Remedies.
If Mortgagee has instituted any proceeding to enforce any right
or remedy under this Senior Note Mortgage and such proceeding has
been discontinued or abandoned for any reason or has been determined
adversely to Mortgagee, then and in every such case Mortgagor and
Mortgagee shall, subject to any determination in such proceeding, be
restored to their respective former positions hereunder, and
thereafter all rights and
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remedies of Mortgagee shall continue as though no such proceeding had
been instituted.
Section 3.5. Rights and Remedies Cumulative.
No right or remedy herein conferred upon or reserved to
Mortgagee is intended to be exclusive of any other right or remedy,
and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given
hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion
or employment of any other appropriate right or remedy.
Section 3.6. Delay or Omission Not Waiver.
No delay or omission of Mortgagee to exercise any right or
remedy accruing upon an Event of Default shall impair any such right
or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this Article
Three or by applicable law to Mortgagee may be exercised, from time
to time, and as often as may be deemed expedient, by Mortgagee.
Section 3.7. Undertaking for Costs.
If any action or proceeding shall be commenced (including,
without limitation, an action to foreclose this Mortgage or to
collect the indebtedness secured hereby) to which action or
proceeding Mortgagee is made or becomes a party, or in which it
becomes necessary in the opinion of Mortgagee to defend or uphold the
lien of this Senior Note Mortgage, Mortgagor shall pay to Mortgagee
all expenses, including, without limitation, reasonable attorneys'
fees, disbursements and court costs incurred by Mortgagee in
connection therewith, together with interest at the rate then payable
on the Senior Partnership Note, from the date of payment less the net
amount received by Mortgagee or the Trustee, as their interests may
appear under any title insurance policy, and, until paid, all such
expenses, together with interest as aforesaid, shall be secured by
the lien of this Mortgage.
Section 3.8. Waiver of Appraisement and Other Laws.
To the full extent that it may lawfully so agree, Mortgagor will
not at any time insist upon, plead, claim or take the benefit or
advantage of, any appraisement, valuation, stay, extension or
redemption law now or hereafter in force, in order to prevent or
hinder the enforcement of this Mortgage or the absolute sale of the
Trust Estate, or any part thereof, or the possession thereof by any
purchaser at any sale under this Article Three; and Mortgagor, for
itself and all who may claim
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under Mortgagor, so far as Mortgagor or they now or hereafter may
lawfully do so, hereby waives the benefit of all such laws.
Mortgagor, for itself and all who may claim under Mortgagor, waives,
to the extent that Mortgagor may lawfully do so, all right to have
the property in the Trust Estate marshalled upon any foreclosure
hereof, and agrees that any court having jurisdiction to foreclose
this Mortgage may order the sale of the Trust Estate as an entirety.
If any law in this Section 3.8 referred to and now in force, of
which Mortgagor or its successor or successors might take advantage
despite this Section 3.8, shall hereafter be repealed or cease to be
in force, such law shall not thereafter be deemed to constitute any
part of the contract herein contained or to preclude the application
of this Section 3.8.
Section 3.9. Entry.
Mortgagor agrees that upon the occurrence, and during the
continuance, of an Event of Default, Mortgagor, upon demand of
Mortgagee, shall forthwith surrender to Mortgagee the actual
possession of, and it shall be lawful for Mortgagee by such officers
or agents as it may appoint to enter and take possession of, the
Trust Estate (and the books and papers of Mortgagor), and to hold,
operate and manage the Trust Estate (including the making of all
needful repairs, and such alterations, additions and improvements as
Mortgagee shall deem wise) and to receive the rents, issues, tolls,
profits, revenues and other income thereof, and, after deducting the
costs and expenses of entering, taking possession, holding, operating
and managing the Trust Estate, as well as payments for taxes,
insurance and other proper charges upon the Trust Estate and
reasonable compensation to itself, its agents and counsel, to apply
the same as provided in Section 3.3; provided, however, that
Mortgagee's rights under this Section 3.9 shall be subject to the
provisions of the New Jersey Casino Control Act and Section 3.14.
Whenever all that is then due upon the Senior Partnership Note and
under any of the terms of this Mortgage shall have been paid and all
defaults hereunder shall have been cured, Mortgagee shall surrender
possession to Mortgagor.
Section 3.10. Power of Sale; Suits for Enforcement.
If an Event of Default shall occur and be continuing, Mortgagee,
with or without entry, in its discretion, may:
(a) sell, subject to any mandatory requirements of applicable
law, the Trust Estate as an entirety, or in such parcels, as
Mortgagee may determine, to the highest bidder at public auction at
such place and at such time (which sale may be adjourned by Mortgagee
from time to time in its discretion by announcement at the time and
place fixed for such sale, without
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further notice) and upon such terms as Mortgagee may fix and briefly
specify in a notice of sale to be published as required by law; or
(b) proceed to protect and enforce its rights under this
Mortgage by sale pursuant to judicial proceedings or by a suit,
action or proceeding in equity or at law or otherwise, whether for
the specific performance of any covenant or agreement contained in
this Mortgage or in aid of the execution of any power granted in this
Mortgage or for the foreclosure of this Mortgage or for the
enforcement of any other legal, equitable or other remedy, as
Mortgagee shall deem most effectual to protect and enforce any of the
rights of Mortgagee; the failure to join tenants shall not be
asserted as a defense to any foreclosure or proceeding to enforce the
rights of Mortgagee.
Section 3.11. Incidents of Sale.
Upon any sale of any of the Trust Estate, whether made under the
power of sale hereby given or pursuant to judicial proceedings, to
the extent permitted by law:
(a) the principal of and accrued interest on the Senior
Partnership Note, if not previously due, shall at once become and be
immediately due and payable;
(b) subject to the provisions of Section 3.14 and the receipt
of any required prior approvals of the New Jersey Casino Control
Commission, Mortgagee may bid for and purchase the property offered
for sale, and upon compliance with the terms of sale may hold,
retain, possess and dispose of such property, without further
accountability, and may, in paying the purchase money therefor,
deliver the Senior Partnership Note or claims for interest thereon in
lieu of cash to the amount which shall, upon distribution of the net
proceeds of such sale, be payable thereon, and the Senior Partnership
Note, in case the amounts so payable thereon shall be less than the
amount due thereon, shall be returned to Mortgagee after being
appropriately stamped to show partial payment;
(c) Mortgagee may make and deliver to the purchaser or
purchasers a good and sufficient deed, bill of sale and instrument of
assignment and transfer of the property sold;
(d) Mortgagee is hereby irrevocably appointed the true and
lawful attorney of Mortgagor, in its name and stead, to make all
necessary deeds, bills of sale and instruments of assignment and
transfer of the property thus sold; and for that purpose it may
execute all necessary deeds, bills of sale and instruments of
assignment and transfer, and may substitute one or more persons,
firms or corporations with like power, Mortgagor hereby ratifying and
confirming all that its said attorney or such substitute or
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substitutes shall lawfully do by virtue hereof; but if so requested
by Mortgagee or by any purchaser, Mortgagor shall ratify and confirm
any such sale or transfer by executing and delivering to Mortgagee or
to such purchaser or purchasers all proper deeds, bills of sale,
instruments of assignment and transfer and releases as may be
designated in any such request;
(e) all right, title, interest, claim and demand whatsoever,
either at law or in equity or otherwise, of Mortgagor of, in and to
the property so sold shall be divested and such sale shall be a
perpetual bar both at law and in equity against Mortgagor, its
successors and assigns, and against any and all persons claiming or
who may claim the property sold or any part thereof from, through or
under Mortgagor, its successors and assigns; and
(f) the receipt of Mortgagee or of the officer making such sale
shall be a sufficient discharge to the purchaser or purchasers at
such sale for his or their purchase money and such purchaser or
purchasers and his or their assigns or personal representatives shall
not, after paying such purchase money and receiving such receipt, be
obliged to see to the application of such purchase money, or be in
anywise answerable for any loss, misapplication or non-application
thereof.
Section 3.12. Receiver.
Upon the occurrence of an Event of Default and commencement of
judicial proceedings by Mortgagee to enforce any right under this
Mortgage, Mortgagee shall be entitled, as against Mortgagor, without
notice or demand and without regard to the adequacy of the security
for the Senior Partnership Note or the solvency of Mortgagor, to the
appointment of a receiver of the Trust Estate, and of the rents,
issues, profits, revenues and other income thereof; provided,
however, that Mortgagee's rights under this Section 3.12 shall be
subject to the provisions of the New Jersey Casino Control Act and
Section 3.14 hereof.
Section 3.13. Suits to Protect the Trust Estate.
Mortgagor hereby acknowledges the right of Mortgagee, in the
name and on behalf of Mortgagor, (a) to appear in and defend any
action or proceeding brought with respect to the Trust Estate or any
part thereof and (b) upon 5 days' prior notice to Mortgagor (or such
shorter period or without notice if deemed necessary and appropriate
by Mortgagee), to institute and to maintain such proceedings as
Mortgagee may deem necessary and appropriate, but in the case of (a)
and (b) only to prevent any impairment of security or any impairment
of the Trust Estate by any acts which may be unlawful or in violation
of this Mortgage and to protect Mortgagee's interests in the Trust
Estate and in the rents, issues, profits, revenues and other income
arising therefrom,
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including the right to institute and maintain proceedings to restrain
the enforcement of or compliance with any governmental enactment,
rule or order that may be unconstitutional or otherwise invalid, if
the enforcement of or compliance with such enactment, rule or order
would impair the security hereunder or be materially prejudicial to
the interests of Mortgagee.
Section 3.14. Management of the Premises.
Without limiting the generality of any other provision of this
Article Three, following an Event of Default and the taking of
possession of the Trust Estate or any part thereof by Mortgagee
and/or the appointment of a receiver of the Trust Estate or any part
thereof, Mortgagee or any such receiver shall be authorized, in
addition to the rights and powers of Mortgagee and such receiver set
forth elsewhere in this Mortgage, to take any action permitted under
Section 5.17 of the Senior Note Indenture.
ARTICLE FOUR
CONSOLIDATION, MERGER, CONVEYANCE,
TRANSFER OR LEASE
Section 4.1. Consolidation, Merger, Conveyance
or Transfer only on Certain Terms.
Mortgagor shall comply with all provisions applicable to
Mortgagor in Article Eight of the Senior Note Indenture.
Section 4.2. Successor Entity Substituted.
Upon any consolidation or merger, or any sale, assignment,
conveyance, transfer or disposition of the Trust Estate or any
portion thereof in accordance with Section 8.1 of the Senior Note
Indenture (other than a lease), the successor Person formed by such
consolidation or into which Mortgagor is merged or the successor
Person to which such sale, assignment, conveyance, transfer or
disposition is made shall succeed to, and be substituted for, and may
exercise every right and power of, Mortgagor under this Mortgage with
the same effect as if such successor had been named as Mortgagor
herein; and thereafter, except in the case of a lease, the Person
named as "Mortgagor" in the first paragraph of this instrument or any
successor Person which shall theretofore have become such in the
manner prescribed in this Article shall be discharged from all
obligations and covenants under this Mortgage.
ARTICLE FIVE
(36)
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COVENANTS AND REPRESENTATIONS OF MORTGAGOR
Section 5.1. Payment of Principal, Premium and Interest.
Mortgagor shall duly and punctually pay the principal of (and
premium, if any) and interest on the Senior Partnership Note in
accordance with the terms of the Senior Partnership Note and this
Mortgage.
Section 5.2. F,F&E Financing Agreements.
Mortgagor shall comply with all of the terms and conditions set
forth in any F,F&E Financing Agreements before the expiration of any
applicable notice and cure periods contained in the F,F&E Financing
Agreements.
Section 5.3. Limitations on Liens and Transfers.
(a) Mortgagor shall not create, incur, suffer or permit to be
created or incurred or to exist any mortgage, lien, charge or
encumbrance on or pledge of any of the Trust Estate, other than (i)
Permitted Encumbrances, (ii) a notice of intention filed by a
mechanic, materialman or laborer under the New Jersey mechanic's lien
law, and (iii) a building contract filed by a contractor or
subcontractor under the New Jersey mechanic's lien law. Without
limiting the generality of the foregoing sentence but notwithstanding
the provisions of the foregoing sentence, Mortgagor shall not be
deemed to have breached the provisions of the foregoing sentence by
virtue of the existence of a lien for Impositions or mechanics' liens
so long as Mortgagor is in good faith contesting the validity of the
same in accordance with the provisions of Section 5.8.
(b) The lien of this Mortgage on the date hereof shall be
subject and subordinate to the lien of any Existing Encumbrances to
the extent that each thereof encumbers Mortgagor's interest in the
Trust Estate or any part thereof. The foregoing provisions of this
Section 5.3(b) shall be self-operative and no further instrument
shall be required to give effect to such subordination. Mortgagee
shall, however, from time to time, after receipt of a Mortgagor
Request therefor (accompanied by a Mortgagor's Certificate stating
that said conditions have been satisfied) execute instruments in form
and substance reasonably satisfactory to the holder of a particular
Superior Mortgage confirming such subordination.
(c) Except as otherwise expressly permitted under this Mortgage
and the Senior Note Indenture (including, without limitation, Article
Eight of the Senior Note Indenture), Mortgagor shall not sell,
assign, lease or otherwise transfer all or any portion of the Trust
Estate or any interest therein. Notwithstanding the foregoing,
Mortgagor shall have the right, at
(37)
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any time and from time to time, unless an Event of Default shall have
occurred and be continuing, without any release from or consent by
Mortgagee, to grant interests in the Owned Land in the nature of
rights-of-way or easements, or other rights or privileges in the
nature of easements; provided, (i) that none of the same will reduce
or impair, in any material respect, (A) the value or usefulness of
the Trust Estate or any part thereof or (B) the normal operation of
the Casino Hotel in accordance with all Legal Requirements and all
Permits, (ii) Mortgagor has delivered to Mortgagee a Mortgagor's
Certificate, dated not earlier than 10 days prior to the date of each
such grant, certifying that (A) no Event of Default has occurred and
is continuing and (B) the conditions set forth in this Section 5.3(c)
for such grant have been fulfilled and (iii) Mortgagor has delivered
to Mortgagee a duplicate original of the instrument, if any, pursuant
to which such grant is to be made, and such other instruments,
certificates and opinions as Mortgagee may reasonably request. The
foregoing provisions of this Section 5.3(c) shall be self-operative
and no further instrument shall be required to evidence the consent
of Mortgagee to the grant or other conveyance of such rights-of-way
or easements. Mortgagee shall, however, from time to time, after
receipt of a Mortgagor Request therefor (accompanied by a Mortgagor's
Certificate stating that said conditions have been satisfied) execute
instruments in form and substance reasonably satisfactory to
Mortgagee confirming the permissibility of such grant or other
conveyance.
Section 5.4. Environmental.
Without limiting the generality of any other provision of this
Mortgage, Mortgagor covenants, represents and warrants to Mortgagee
as follows:
(a) Mortgagor shall comply with any and all federal, state and
local environmental legislation, rules, and regulations in effect as
of the date of this Mortgage and subsequent thereto, including,
without limitation, the Spill Compensation and Control Act (N.J.S.A.
58:10-23. 11 et seq.) (the"Spill Act"); the Industrial Site Recovery
Act (N.J.S.A. 13:1K-6 et seq.) ("IRSA"); the Solid Waste Management
Act (N.J.S.A. 13:E-1 et seq.); the Resource, Conservation and
Recovery Act (42 U.S.C. Section 6901 et seq.) ("RCRA"); the
Comprehensive Environmental Response, Compensation and Liability Act
(42 U.S.C. Section 9601 et seq.) ("CERCLA") and such other
environmental legislation, rules and regulations, as are in or may
come into effect and apply to (i) Mortgagor and/or Mortgagee with
respect to the Premises or (ii) the transactions contemplated hereby,
and as to any occupants or users of the collateral, whether as
lessees, tenants, licensees or otherwise, Mortgagor shall use its
best efforts to cause same to comply with said legislation, rules and
regulations.
(38)
<PAGE>
Mortgagor agrees to pay all costs required in connection with
compliance with the foregoing legislation, rules and regulations.
(b) Mortgagor has not used in the past, nor shall Mortgagor use
in the future, the Premises for the purpose of refining, producing,
storing, handling, transferring, processing or transporting
"Hazardous Substances", as such term is defined in IRSA, the Spill
Act, CERCLA or the regulations relating thereto, except that
Mortgagor and its subsidiaries have used, and Mortgagor may continue
in the future to use, substances in the operation and maintenance of
the Premises, including, without limitation, heating oil, gasoline
and cleaning chemicals which could be considered as "Hazardous
Substances" under the preceding definition.
(c) To the best of Mortgagor's knowledge, after due inquiry and
investigation, none of the real property owned, leased and/or
occupied by Mortgagor and located in the State of New Jersey,
including, without limitation, the Premises, has been or is now being
used as a "Major Facility" as such term is defined in N.J.S.A.
58:10-23.11b(1). Mortgagor will not use the Premises in the future
as a "Major Facility".
(d) To the best of Mortgagor's knowledge, after due inquiry and
investigation, no lien has been attached to any revenues or any real
or personal property owned by Mortgagor or the Premises, as a result
of the Chief Executive of the New Jersey Spill Compensation Fund
expending monies from said fund to pay for "Cleanup Costs", as such
term is defined in N.J.S.A. 58:10-23.11b(d), arising from an
intentional or unintentional action or omission of Mortgagor or any
previous owner and/or operator of such real property.
(e) There is no asbestos or asbestos containing material on the
Premises. To the best of Mortgagor's knowledge, there are no
underground storage tanks located at the Premises, other than those
tanks previously disclosed to Mortgagee and which are maintained in
accordance with all material Legal Requirements. Mortgagor has not
installed or placed, or permitted to be installed or placed, any
underground storage tanks at or on the Premises, other than those
tanks previously disclosed to Mortgagee and which are maintained in
accordance with all material Legal Requirements. Underground storage
tanks shall have the definition as set forth in N.J.S.A.
58:10A-22(p).
(f) Mortgagor has not received a summons, citation, directive,
letter, other written communication, or, to the best of its
knowledge, any oral communication, from the New Jersey Department of
Environmental Protection and Energy or from any other person, firm or
corporation concerning any intentional or unintentional action or
omission on Mortgagor's part resulting in the releasing, spilling,
leaking, pumping, pouring, emitting,
(39)
<PAGE>
emptying or dumping of "Hazardous Substances", as such term is
defined in N.J.S.A. 58:10-23.11b(k), into the waters or onto the
lands of the State of New Jersey, or into the waters outside the
jurisdiction of the State of New Jersey, in either case resulting in
damage to the lands, waters, fish, shellfish, wildlife, biota, air
and other resources owned, managed, held in trust or otherwise
controlled by the State of New Jersey.
(g) In connection with any purchase of the Premises or any
business or assets located thereon or any "closing, terminating or
transferring operations" of any "industrial establishment", as that
term is defined in ISRA, occurring on or after December 31, 1983,
Mortgagor required that the owner and or operator of the industrial
establishment comply with the provisions of ECRA and the owner and or
operator did comply therewith.
(h) Upon the occurrence of an Event (as hereinafter defined),
Mortgagee shall have the right to have its consultants perform a
comprehensive environmental audit of the Premises. Such audit shall
be conducted by an environmental consultant chosen by Mortgagee and
may include a visual survey, a record review, an area reconnaissance
assessing the presence of hazardous or toxic waste or substances,
PCBs or storage tanks at the Premises, an asbestos survey of the
Premises, which may include random sampling of the improvements and
air quality testing, and such further site assessments as Mortgagee
may reasonably require due to the results obtained from the
foregoing. Mortgagor grants Mortgagee, its agents, consultants and
contractors the right to enter the Premises for the purposes of
performing such studies and the cost of such studies shall be due and
payable by Mortgagor to Mortgagee upon demand and shall be secured by
the lien of this Mortgage. Mortgagee shall direct the environmental
consultant to use its best efforts not to hinder Mortgagor's or any
tenant's operations when conducting such audit, sampling or
inspections. For purposes of this paragraph, the term "Event" shall
mean (i) the occurrence of any Event of Default, (ii) the issuance of
any summons, citation, directive or similar written notice from the
New Jersey Department of Environmental Protection and Energy or from
any other local, state or federal entity or from any other person,
firm or corporation concerning any alleged material violation of any
and all federal, state and local environmental legislation, rules and
regulations in effect as of the date of this Mortgage and subsequent
thereto or (iii) the initiation of any legal action, suits or other
legal or administrative proceedings relating to or in connection with
any alleged violation of any and all federal, state and local
environmental legislation, rules and regulations in effect as of the
date of this Mortgage and subsequent thereto.
(i) If a lien shall be filed against the Premises by the New
Jersey Department of Environmental Protection and Energy,
(40)
<PAGE>
pursuant to and in accordance with the provisions of N.J.S.A.
58:10-23.11f(f), as a result of the Chief Executive of the New Jersey
Spill Compensation Fund having expended monies from said fund to pay
for "Damages", as such term is defined in N.J.S.A. 58:10-23.11g,
and/or "Cleanup and Removal-Costs", as such term is defined in
N.J.S.A. 58:10-23(b), arising from an intentional or unintentional
action or omission of Mortgagor resulting in the releasing, spilling,
pumping, pouring, emitting, emptying or dumping of "Hazardous
Substances", as such term is defined in N.J.S.A. 58:10-23.11(b)k into
waters of the State of New Jersey or onto lands from which it might
flow or drain into said waters, then, unless there is a good faith
basis for contesting such lien and Mortgagor is so contesting such
lien in accordance with Section 5.9, Mortgagor shall, within 30 days
from the date that Mortgagor is given notice that the lien has been
placed against the Premises or within such shorter period of time if
the State of New Jersey has commenced steps to cause the Premises to
be sold pursuant to the lien, either (i) pay the claim and remove the
lien from the Premises, or (ii) furnish (A) a bond satisfactory to a
title company selected by Mortgagee (the "Title Insurer") in the
amount of the claim out of which the lien arises, (B) to the Trustee,
a cash deposit (which may be disbursed by the Trustee in its sole
discretion) in the amount of the claim out of which the lien arises,
or (C) other security reasonably satisfactory to Mortgagee in an
amount sufficient to discharge the claim out of which the lien
arises.
(j) Mortgagor shall use its best efforts to cause compliance by
all lessees with all applicable Legal Requirements relating to
environmental protection.
(k) Mortgagor shall promptly provide Mortgagee with copies of
all notices received by or prepared by Mortgagor in connection with
ISRA, CERCLA, the Spill Act, RCRA or any other environmental law,
rule or regulation relating to the Premises. For purposes of this
paragraph, the term "notice" shall mean any summons, citation,
directive, order, claim, pleading, letter, application, filing,
report, findings, declarations or other materials pertinent to
compliance of the Trust Estate and Mortgagor with such environmental
laws, rules or regulations.
(l) If this Mortgage is foreclosed, Mortgagor shall deliver the
Premises in compliance with all applicable federal, state and local
environmental laws, ordinances, rules and regulations, including,
without limitation, ISRA.
(m) Without limiting the generality of Section 5.20, Mortgagor
agrees to defend, indemnify and save Mortgagee harmless from and
against any loss or liability, cost or expense (including, without
limitation, reasonable attorneys' fees, consultants' fees,
disbursements and court costs) arising out of, or incurred in
connection with, Mortgagor's misrepresentation, or
(41)
<PAGE>
failure promptly (but in no event to exceed the time period permitted
by law) to comply with and perform its obligations, under this
Section 5.4. The provisions of this subsection (m) shall survive any
transfer of the Premises, including a transfer after a foreclosure of
this Mortgage.
Section 5.5. Warranty of Leasehold Estate and Title.
Mortgagor represents and warrants that as of the date hereof:
(a) Mortgagor is duly authorized under the laws of the State of
New Jersey and all other applicable laws to execute and deliver the
Mortgage Documents, and all partnership action on Mortgagor's part
necessary for the valid execution and delivery of the Mortgage
Documents has been duly and effectively taken;
(b) Mortgagor is the lawful owner and is lawfully seized and
possessed of the Owned Land and all buildings and improvements
thereon, free and clear of all liens, charges or encumbrances, other
than the Mortgage Documents and the Existing Encumbrances;
(c) Mortgagor is the holder of and has good and marketable
title to the leasehold interests and leasehold estates under all
existing Facility Leases, subject to no lien, encumbrance or charge
other than the Mortgage Documents and the Existing Encumbrances;
(d) (i) each existing Facility Lease is a valid and subsisting
demise of the respective Leased Land for the term therein set forth,
(ii) there are no defaults under any Facility Lease by any lessor or
the lessee as to which written notice has been given to or by the
lessee, (iii) Mortgagor has delivered to Mortgagee and the Trustee a
true and correct copy of each existing Facility Lease, and all
modifications, amendments and supplements thereto, and (iv) each
existing Facility Lease is in full force and effect and has not been
modified, amended or supplemented, except as described on Schedule 3;
(e) Mortgagor has good title to the Operating Assets, subject
to no lien, encumbrance or charge, other than the Mortgage Documents
and the Existing Encumbrances;
(f) Mortgagor has good and lawful right and authority to
execute this Mortgage and to grant, bargain, sell, alien, convey,
assign, transfer, hypothecate, pledge, mortgage and confirm the Trust
Estate as provided herein (including, without limitation, with
respect to the Operating Assets and Facility Leases), without the
consent of any third party, other than governmental authorities and
other secured Persons but any applicable or necessary consent or
approval of any such governmental authority
(42)
<PAGE>
and other such Persons has been given or waived in accordance with
applicable law at or prior to the execution and delivery of this
Mortgage, and this Mortgage constitutes a valid first mortgage lien
and deed of trust and first priority security interest in the Trust
Estate, subject only to Existing Encumbrances (including, without
limitation, the Superior Mortgage); and
(g) (i) all amounts due under the Superior Mortgage and the
instruments secured thereby have been paid to the extent they were
due and payable to the date hereof, and (ii) there is no existing
default under said Superior Mortgage or instruments, or in the
performance of any of the terms, covenants, conditions or warranties
therein on the part of Mortgagor to be performed and observed
thereunder as to which written notice has been given to Mortgagor.
Mortgagor hereby does and shall forever warrant and defend (a)
the title to the Trust Estate (including, without limitation,
Mortgagor's leasehold estate under, and the lessee's interests in,
each existing Facility Lease) (subject to Permitted Encumbrances) and
(b) the priority of the lien of this Senior Note Mortgage thereon
(subject to Permitted Encumbrances other than Restricted
Encumbrances), against the claims and demands of all persons
whomsoever, at Mortgagor's sole cost and expense.
Section 5.6. After-Acquired Property;
Further Assurances; Recording.
All property, real, personal or mixed or any interest therein
(other than Excepted Property), of every kind and description and
wheresoever situate, which may be hereafter acquired by Mortgagor
(including, without limitation, fee title to any Leased Land) shall
immediately upon the acquisition thereof by Mortgagor, and without
any further mortgage, conveyance or assignment, become subject to the
lien of this Mortgage as fully as though now owned by Mortgagor and
covered by the Granting Clauses. Nevertheless, Mortgagor shall do,
execute, acknowledge and deliver all and every such further acts,
conveyances, mortgages, financing statements and assurances as
Mortgagee shall require for accomplishing the express purposes of
this Senior Note Mortgage.
Mortgagor shall, as provided in Section 5.12, from time to time
subject to the lien of this Senior Note Mortgage its right, title and
interest under all Leases.
Mortgagor shall use reasonable efforts to insure that all
Operating Assets (other than Excepted Property) or any interest
therein hereafter acquired by Mortgagor shall be assignable to
Mortgagee, and to the extent such assignment to Mortgagee requires
the consent of any governmental authority or any other
(43)
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Person, Mortgagor shall use reasonable efforts to obtain such consent
or a waiver thereof.
Mortgagor shall cause this instrument and all other instruments
of further assurance, including all financing statements and
continuation statements covering security interests in personal
property, to be promptly recorded, registered and filed, and at all
times to be kept recorded, registered and filed, and shall execute
and file such financing statements and cause to be issued and filed
such continuation statements, all in such manner and in such places
as may be required by law or as requested by Mortgagee to fully
preserve and protect the rights of Mortgagee as a secured party under
the Uniform Commercial Code to all property comprising the Trust
Estate (to the extent a grant of a security interest therein is
governed by the Uniform Commercial Code) and to perfect, preserve and
protect the lien of this Senior Note Mortgage as a valid direct first
mortgage lien of record and a valid first priority security interest
on the Trust Estate, subject only to Permitted Encumbrances
(including, without limitation, the Superior Mortgage).
Mortgagor shall pay all filing or recording fees, and all
expenses incident to the execution and delivery of this Mortgage, any
financing statement or continuation statement with respect to the
personal property constituting part of the Trust Estate, and any
instrument of further assurance, and all federal, state, county and
municipal stamp taxes and other taxes, duties, imposts, assessments
and charges arising out of or in connection with the execution and
delivery of the Senior Partnership Note, this Senior Note Mortgage,
any financing statement or continuation statement with respect to the
personal property constituting part of the Trust Estate or any
instrument of further assurance.
Mortgagor shall furnish to Mortgagee promptly after the
acquisition hereafter by Mortgagor of any fee interest or leasehold
interest in real property having a fair market value exceeding
$500,000 (other than Excepted Property) (a) a mortgagee policy of
title insurance on the most recent form of American Land Title
Association standard loan policy, extended coverage, which policy
shall (i) contain all such endorsements and affirmative insurance, to
the extent reasonably applicable, as is contained in the Original
Policy and (ii) evidence that title to such real property is subject
to no liens or encumbrances (other than Permitted Encumbrances) which
would (A) render title unmarketable or (B) violate any other
provision of this Senior Note Mortgage or the Senior Note Indenture,
(b) an as-built survey meeting the "Minimum Standard Detail
Requirements for ALTA/ACSM Land Title Surveys", certified within 60
days prior to the acquisition date by a surveyor licensed in the
State of New
Jersey using the same form of certification as that contained in
(44)
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the surveys of the Premises delivered to the Trustee on the date of
this Mortgage and (c) a Mortgagor's Certificate certifying that the
mortgagee policy of title insurance and survey delivered pursuant to
clauses (a) and (b) comply, respectively, with the provisions of such
clauses (a) and (b). Upon delivery of all of the items required
under this paragraph, any liens or encumbrances on such real property
shall constitute Permitted Encumbrances hereunder.
Section 5.7. Payment of Taxes and Certain Claims;
Maintenance of Properties; Compliance with
Legal Requirements and Insurance Requirements.
Mortgagor shall:
(a) subject to the provisions of Section 5.8, pay or cause to
be paid before the date on which any fine, penalty, interest or cost
may be added for nonpayment (but no later than when the same are
payable by Mortgagor pursuant to any Superior Instrument
Requirement), all taxes (including, without limitation, real estate
taxes, personal or other property taxes and all sales, value added,
use and similar taxes), assessments (including, without limitation,
all assessments for public improvements or benefits, whether or not
commenced or completed prior to the date hereof and whether or not to
be completed prior to the satisfaction of this Mortgage), water,
sewer or other rents, rates and charges, excises, levies, license
fees, permit fees, inspection fees and other authorization fees and
other charges, in each case whether general or special, ordinary or
extraordinary, foreseen or unforeseen, of every character (including,
without limitation, all interest, additions to tax and penalties
thereon), that may be assessed, levied, confirmed or imposed on or in
respect of or be a lien upon (i) the Trust Estate (including, without
limitation, the Leased Land) or any part thereof or any rent
therefrom or any estate right or interest therein, or (ii) any
acquisition, occupancy, use, leasing, or possession of or activity
conducted on the real property or any part thereof included in the
Trust Estate or any gross receipts thereof or of the rent therefrom
(all of the foregoing being referred to collectively as
"Impositions"). Notwithstanding the foregoing or any other provision
of this Mortgage, Mortgagor shall not be required to pay any income,
profits or revenue tax upon the income of Mortgagee, the Trustee or
the Holders nor any franchise, excise, corporate, estate,
inheritance, succession, capital levy or transfer tax of Mortgagee,
the Trustee or the Holders nor any interest, additions to tax or
penalties in respect thereof, unless such tax is imposed, levied or
assessed in substitution for any Imposition that Mortgagor is
required to pay pursuant to this Section 5.7. Mortgagor shall
deliver to Mortgagee, at Mortgagee's request, official receipts or
other proof evidencing payments of any Impositions in accordance with
the requirements of this
(45)
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Section 5.7. Mortgagor shall not be entitled to any credit for taxes
or assessments paid against the Senior Partnership Note;
(b) except for such obsolete property as Mortgagor may dispose
of or replace pursuant to Section 2.2, maintain and keep all of
Mortgagor's properties used or useful in the conduct of Mortgagor's
business, including, without limitation, the Casino Hotel and all
Tangible Personal Property, in such good repair, working order and
condition, except for reasonable wear and use, and make or cause to
be made all such needful and proper repairs, renewals and
replacements thereto consistent with the standards of first-class
casino and hotel complexes in Atlantic City, New Jersey;
(c) occupy and continuously operate the Casino Hotel and keep
the Casino Hotel supplied with Tangible Personal Property, all in a
manner consistent with the standards of first-class casino and hotel
complexes in Atlantic City, New Jersey;
(d) subject to the provisions of Section 5.8, (i) comply with
all Legal Requirements and Insurance Requirements, whether or not
compliance therewith shall require structural changes in the
buildings and improvements included in the Trust Estate or interfere
with the use and enjoyment of the Trust Estate or any part thereof,
(ii) procure, maintain and comply with all Permits required for (1)
the use of the Casino as a gaming and gambling facility, (2) the
on-premises consumption of alcoholic beverages at the Casino Hotel
and (3) any other use of the Trust Estate or any part thereof then
being made, and for the proper erection, installation, operation and
maintenance of the improvements or any part thereof, (iii) comply
with all obligations of Mortgagor under, and keep in full force and
effect, all easements which in any respect inure to the benefit of,
or otherwise affect, the Trust Estate or any part thereof, if the
failure to comply with the same would impair Mortgagee's security
hereunder, and (iv) without limiting the generality of clause (iii),
comply with any instruments of record at the time in force affecting
the Trust Estate or any part thereof, if the failure to comply with
the same would impair Mortgagee's security hereunder. Without
limiting the generality of the foregoing, Mortgagor represents and
warrants that at the time of the execution of this Mortgage,
Mortgagor is in compliance with the requirements of clauses (i),
(ii), (iii) and (iv) above; and
(e) in the event of the passage after the date of this Mortgage
of any law of the State of New Jersey, or any other governmental
entity, changing in any way the laws now in force for the taxation of
mortgages, or debts secured thereby, for federal, state or local
purposes, or the manner of the operation of any such taxes, so as to
affect the interest of Mortgagee, pay the full amount of such new or
additional taxes.
(46)
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Section 5.8. Permitted Contests.
Notwithstanding anything in this Senior Note Mortgage to the
contrary, Mortgagor, at Mortgagor's expense, may contest (after prior
notice to Mortgagee) by appropriate legal proceedings conducted in
good faith and with due diligence, the amount or validity or
application, in whole or in part, of any Imposition or lien therefor
or any Legal Requirement or Insurance Requirement or the application
of any instrument of record (including, without limitation, any
Superior Instrument Requirement) affecting the Trust Estate or any
part thereof or any claims of holders of F,F&E Financing Agreements,
mechanics, materialmen, suppliers, or vendors or lien therefor, and
may withhold payment of the same pending such proceedings if
permitted by law, or make payment under protest, or defer compliance
with any such Legal Requirement, any such Insurance Requirement or
the terms of any such instrument, and the same shall not be a Default
hereunder; provided, that (a) in the case of any Impositions or lien
therefor or any claims of mechanics, materialmen, suppliers or
vendors or lien therefor, such proceedings shall suspend the
collection thereof from each of Mortgagor, Mortgagee, the Trustee,
the Holders and the Trust Estate, (b) neither the Trust Estate nor
any interest therein would be in any significant danger of being
sold, forfeited, or lost, (c) such action will not result in (i) the
termination of any Facility Lease or (ii) the holder of any Superior
Mortgage having a right to exercise any rights or remedies
thereunder, (d) in the case of a Legal Requirement, neither the
Holders nor Mortgagee shall be in any significant danger of any civil
liability or any danger of any criminal liability, and the failure of
Mortgagor to comply with such Legal Requirement shall not affect the
continuance in good standing of any Permit or result in the
suspension, termination, non-renewal or material adverse modification
of any Permit, and (e) in the case of an Insurance Requirement, the
failure of Mortgagor to comply therewith shall not affect the
validity of any insurance required to be maintained by Mortgagor
hereunder.
Section 5.9. Mechanics' and Other Liens.
Mortgagor shall cause to be removed, either by payment, or
bonding or otherwise, all claims and demands of mechanics,
materialmen, laborers, and others which, if unpaid, might result in,
or permit the creation of, a lien on the Premises and/or Trust Estate
or any part thereof, or on the revenues, rents, issues, income and
profits arising therefrom and in general shall do or cause to be done
everything necessary so that the lien hereof shall be fully
preserved, at the cost of Mortgagor, without expense to Mortgagee.
Section 5.10. To Insure.
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(a) Mortgagor, at Mortgagor's expense, shall maintain with
Insurers:
(i) insurance with respect to Mortgagor's insurable
properties constituting a part of the Trust Estate against loss
or damage by fire, lightning, and other risks from time to time
included under "all-risk" policies and against loss or damage by
sprinkler leakage, water damage, collapse, malicious mischief
and explosion in respect of any steam and pressure boilers and
similar apparatus located on such insurable properties, in
amounts at all times sufficient to prevent Mortgagor from
becoming a coinsurer within the terms of the applicable
policies, but in any event such insurance shall be maintained in
not less than the greatest of the following (the "Insurance
Amount"): (A) 100% of the then Full Insurable Value of such
insurable properties, determined from time to time (but not less
frequently than once in any 36 calendar months), by an Appraiser
or Insurer, (B) the then Outstanding Amount of Mortgage Debt,
including the Senior Partnership Note, or (C) the amount
required to be maintained pursuant to the Superior Instrument
Requirements;
(ii) war risk insurance as and when such insurance is
obtainable from the United States of America or any agency
thereof as promptly as reasonably practicable after the same
becomes so obtainable, in an amount not less than the Insurance
Amount, or, if such insurance cannot be obtained in an amount
not less than the Insurance Amount, in such lesser amount as may
then be so obtainable;
(iii) comprehensive general liability insurance,
including, without limitation, blanket contractual liability
coverage, broad form property damage, independent contractor's
coverage and personal injury coverage against any and all claims
arising out of or connected with the possession, use,, leasing,
operation or condition of such insurable properties, in an
amount not less than $100,000,000 combined single limit coverage
for personal injury and property damage with respect to any one
occurrence, which may be under an umbrella policy. Anything
contained in this clause (iii) to the contrary notwithstanding,
the Superior Instrument Requirements with respect to the kinds
and amount of insurance described in this clause (iii) shall be
satisfied by Mortgagor;
(iv) workers' compensation insurance to the extent
required by law;
(v) business interruption insurance covering not less than
6 months of loss, provided that, at any time that Mortgagor is
renewing any policy for such insurance or
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taking out any new or replacement policy for such insurance covering
a period of less than 12 months, Mortgagor shall deliver to Mortgagee
an Officers' Certificate certifying that the period of coverage to be
maintained by Mortgagor under such policy is the maximum that can be
maintained at rates determined by Mortgagor to be reasonable for such
coverage;
(vi) to the extent available, flood insurance in an amount
not less than the Insurance Amount, or, if such insurance cannot
be obtained in an amount not less than the Insurance Amount,
such lesser amount as may then be so obtainable but in no event
less than $100,000,000; and
(vii) such other insurance with respect to such insurable
properties against loss or damage of the kinds (A) from time to
time customarily insured against by persons owning or using
first-class casino and hotel complexes in Atlantic City, New
Jersey and (B) required to be maintained pursuant to any
Superior Instrument Requirements.
Notwithstanding the foregoing, to the extent not violative of
any Superior Instrument Requirements, (A) Mortgagor may maintain a
deductible with respect to the insurance policies described in
clauses (i), (ii), (vi) and (vii) in an amount not to exceed
$250,000, (B) Mortgagor may maintain a deductible with respect to the
insurance policies described in clause (iii) in an amount not to
exceed $500,000, and (C) Mortgagor may maintain a deductible with
respect to the insurance policies described in clause (v) in an
amount not to exceed $1,000,000.
(b) (i) Each policy of insurance maintained by Mortgagor
pursuant to Section 5.10(a) shall, (A) except in the case of workers'
compensation insurance, name Mortgagor as an insured and shall name
as additional insureds (1) Mortgagee and (2) to the extent required
by the Superior Instrument Requirements, the lessors under any
Facility Leases and the holders of the Superior Mortgages, (B)
provide that all insurance proceeds for losses, except in the case of
comprehensive general liability insurance and workers' compensation
insurance or as otherwise provided in Subsections (d), (e) and (f) of
this Section 5.10, be payable solely to Mortgagee (or if such
insurance proceeds are for losses sustained solely to property
covered by a Superior Mortgage, such other party as is required to
receive such proceeds under a Superior Mortgage), (C) include
effective waivers (whether under the terms of any such policy or
otherwise) by the insurer of all claims for insurance premiums
against all loss payees and named insureds (other than Mortgagor) and
all rights of subrogation against any named insured, (D) except in
the case of comprehensive general liability and workers' compensation
insurance, provide that any losses shall be payable notwithstanding
(1) any act, failure to act, negligence of, or
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violation or breach of warranties, declarations or conditions
contained in such policy by Mortgagor or Mortgagee or any other named
insured or loss payee (including, without limitation, (x) the lessors
under the Facility Leases with respect to any Leased Facilities and
(y) the holder of any Superior Mortgage with respect to the property
encumbered thereby), (2) the occupation or use of the insurable
properties for purposes more hazardous than permitted by the terms of
the policy, (3) any foreclosure or other proceeding or notice of sale
relating to the insurable properties or (4) any change in the title
to or ownership or possession of the insurable properties, (E)
contain a non-contributory mortgagee clause in favor of Mortgagee,
and (F) provide that if all or any part of such policy is cancelled,
terminated or expires, the insurer will forthwith give notice thereof
to each named insured and loss payee and that no cancellation,
non-renewal, reduction in amount or material change in coverage
thereof shall be effective until at least 30 days after receipt by
each named insured and loss payee of written notice thereof.
(ii) Mortgagor may effect the insurance required under this
Section 5.10 under blanket and/or umbrella policies covering
properties owned or leased by Affiliates of Mortgagor; provided, that
(A) such policies otherwise comply with this mortgage, (B) except
with respect to flood insurance and earthquake insurance, provide
that the amount of coverage afforded thereunder with respect to the
Trust Estate shall not be reduced by claims thereunder against such
other properties and (C) in the case of flood insurance provide that
the amount of coverage afforded thereunder with respect to the Trust
Estate shall not be reduced below $100,000,000 by reason of claims
thereunder against such other properties.
(c) Mortgagor shall deliver to Mortgagee duplicate originals of
all insurance policies that Mortgagor is required to maintain
pursuant to this Section 5.10. Mortgagee shall not be responsible
for effecting or renewing any insurance or for the responsibility or
solvency of the insurers.
(d) Mortgagor shall give written notice to Mortgagee
immediately upon obtaining knowledge of any Casualty which (i)
results in damage, loss or destruction in an amount in excess of
$5,000,000 to any buildings or improvements on the Premises and/or
any Tangible Personal Property or (ii) pursuant to any Superior
Instrument Requirement, would require the deposit of insurance
proceeds with the Depositary, or action or proceeding with respect
thereto. Whenever the Superior Instrument Requirements require or
permit the selection of the Depositary by Mortgagor, Mortgagor shall
select the Insurance Trustee as the Depositary. Within 30 days after
any Casualty which results in any damage, loss or destruction in an
amount in excess of $10,000,000 to any buildings or improvements on
the Premises
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and/or any Tangible Personal Property, Mortgagor shall deliver to
Mortgagee a certificate of an Architect stating whether, in such
Architect's opinion, applicable Legal Requirements permit the
Restoration of said buildings and improvements for the same uses and
to the same size and quality in all material respects, as existed
immediately prior to the Casualty (and if said certificate states
that Legal Requirements do not permit such Restoration, said
certificate shall describe the manner closest approximating such
criteria to which the buildings and improvements could be so restored
and shall be accompanied by a Certificate Of Appraised Value dated
not more than 10 days prior to delivery setting forth the Appraised
Value immediately prior to the Casualty and the estimated Appraised
Value immediately after the Restoration). If Mortgagor is required
to deliver such Certificates of Appraised Value and if based on such
Certificates of Appraised Value immediately after Restoration, (i)
the aggregate Outstanding Amount of Indebtedness of the Mortgagor
immediately after such Restoration shall exceed the greater of (A)
80% of the Appraised Value immediately after such Restoration or (B)
the quotient of the Outstanding Amount of Indebtedness of the
Mortgagor immediately prior to such Casualty divided by the Appraised
Value immediately prior to the Casualty multiplied by the Appraised
Value immediately after such Restoration, or (ii) applicable Legal
Requirements do not permit the Restoration of the Casino Hotel for
use as a casino and hotel complex, then, in either of such events,
the proceeds of any insurance shall not be applied to Restoration but
shall instead be paid and delivered to Mortgagee to the extent of the
then Outstanding Amount of the Senior Partnership Note and any other
interest or other sums due hereunder or thereunder to be applied to
the satisfaction of this Mortgage to the extent proceeds are
available for such purpose and provided that no additional sums are
due to the Trustee or the Holders under the Mortgage Senior
Partnership Notes or the Senior Note Indenture, the balance of any
net insurance proceeds shall be paid to Mortgagor.
(e) Subject to the provisions of Subsection 5.10(d), if a
Casualty occurs, the following shall apply:
(i) If the cost of Restoration is less than $10,000,000,
the net insurance proceeds shall be paid by Mortgagee to
Mortgagor (unless the Superior Instrument Requirements provide
that the same shall be paid to the Depositary).
(ii) If the cost of Restoration is $10,000,000 or more or
if the Superior Instrument Requirements provide that the same
shall be paid to the Depositary, the net insurance proceeds
shall be paid by Mortgagee to the Insurance Trustee (or other
Depositary required by the Superior Instrument Requirements,
provided that such Depositary holds such
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proceeds in trust for purposes of paying the costs of Restoration).
(iii) Mortgagor shall commence with reasonable promptness
under the circumstances and thereafter with due diligence
proceed to perform and complete in a good and workmanlike manner
the restoration, repair, replacement or rebuilding of the damage
or destruction resulting from the Casualty (all such
restoration, repair, replacement and rebuilding following a
Casualty or a Taking are referred to as "Restoration") in
accordance with the plans and specifications submitted to the
Insurance Trustee, in conformance with all Legal Requirements
and Superior Instrument Requirements, and in accordance with the
further provisions of this Subsection (e), regardless of the
extent of any such Casualty and whether or not net insurance
proceeds, if any, shall be available or, if available, shall be
sufficient, for the purpose of the Restoration. All Restoration
work shall be performed in accordance with the applicable
provisions of Section 5.12 and in conformance with all Superior
Instrument Requirements, Legal Requirements and Insurance
Requirements and, prior to commencing any Restoration, Mortgagor
shall obtain all Permits necessary in connection therewith, and
shall obtain, and keep in full force and effect until the
completion of such Restoration, such additional insurance as the
Insurance Trustee and Superior Instrument Requirements may
require. The plans and specifications for the Restoration shall
be accompanied by a Mortgagor's Certificate and an Opinion of
Counsel to the effect that upon the completion of the
Restoration pursuant to the plans and specifications, the
Premises and all buildings and improvements thereon will comply
with all Superior Instrument Requirements, Legal Requirements
and Insurance Requirements.
(iv) Any insurance proceeds which Mortgagor receives shall
be held by Mortgagor in trust for the purpose of paying the cost
of the Restoration, except as otherwise provided herein.
(v) Any net insurance proceeds that the Insurance Trustee
holds pursuant to this Subsection (e), shall be deposited in an
interest-bearing investment reasonably designated by Mortgagor
(to the extent Mortgagor is permitted to designate such
investment under the Superior Instrument Requirements) (and the
interest thereon shall be added to such proceeds) and shall be
paid by the Insurance Trustee to reimburse Mortgagor for, or to
make payment for, the Restoration, after the Insurance Trustee
deducts therefrom the amount of any reasonable costs and
expenses incurred in connection with the performance of its
obligations under this Section 5.10. The Insurance Trustee
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shall make such payments not more frequently than once every 30 days
upon the written request of Mortgagor (unless more frequent payments
are required by Superior Instrument Requirements), by paying to
Mortgagor or the persons named in the certificate described in clause
(vi) of this Subsection (e) the respective amounts stated in such
certificate from time to time as the Restoration progresses, provided
Mortgagor has complied with the requirements of this Subsection (e)
and such payment is permitted by any applicable Superior Instrument
Requirements. Mortgagor's request shall be accompanied by (A) the
certificate described in clause (vi) of this Subsection (e) and (B) a
title company or official search, or other evidence reasonably
acceptable to the Insurance Trustee, showing that there have not been
filed with respect to the Premises, any vendor's, contractor's,
mechanic's, laborer's or materialman's statutory or similar lien
which has not been discharged of record (or bonded against or secured
by other security) or any other encumbrance irrespective of its
priority (other than Permitted Encumbrances).
(vi) The certificate required by clause (v) of this
Subsection (e) shall (A) be a Mortgagor's Certificate,
countersigned by the Architect in charge of the Restoration with
respect to the matters described in (1) and (5) below, (B) be
dated not more than 10 days prior to such request and (C) set
forth (in addition to any other requirements contained in any
applicable Superior Instrument Requirements) that:
(1) all of the Restoration theretofore performed is
in substantial compliance with the plans and specifications
theretofore submitted to the Insurance Trustee and in
compliance with all Superior Instrument Requirements, Legal
Requirements and Insurance Requirements;
(2) the sum then requested either has been paid by
Mortgagor or is justly due to contractors, subcontractors,
materialmen, engineers, architects or other persons who
have rendered services or furnished or contracted to
deliver materials for the Restoration therein specified,
and the names and addresses of such persons, a brief
description of such services and materials and the several
amounts so paid or due to each of said persons in respect
thereof;
(3) no part of the amount requested has been or is
the basis in any previous or then pending request for the
withdrawal of net insurance proceeds, and that the sum then
requested does not exceed the value of the services and
materials described in the certificate;
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(4) except for the amount, if any, stated pursuant to
subclause (2) of this clause (vi) in such certificate to be
due for services or materials, and except for amounts in
dispute and/or customary retainages, there is no
outstanding indebtedness known to the person signing such
certificate, after due inquiry, which is then due for
labor, wages, materials, supplies or services in connection
with such Restoration; and
(5) the remaining cost, as estimated by the persons
signing such certificate, of the Restoration in order to
complete the same does not exceed the net insurance
proceeds remaining in the hands of Insurance Trustee after
payment of the sum requested in such certificate or if such
estimated cost does exceed such insurance proceeds such
certificate shall state the amount of any such deficiency.
If the certificate states that such deficiency will exist,
Mortgagor shall deliver the amount of such deficiency in
cash or cash equivalent to the Insurance Trustee
simultaneously with the delivery of such certificate, which
amount shall be deemed insurance proceeds for purposes of
this Section 5.10(e).
(vii) If net insurance proceeds shall be insufficient to
pay the entire cost of the Restoration, then, after completion
of the Restoration, Mortgagor shall pay the deficiency. If all
or any part of the net insurance proceeds are not used for the
Restoration in accordance with this Subsection (e) (because such
proceeds exceed the amount required to complete the
Restoration), then upon completion of the Restoration in
accordance with this Subsection (e), such amount not so used, if
held by the Insurance Trustee, shall be paid to Mortgagor (if
permitted by Superior Instrument Requirements).
(f) Mortgagor shall not take out separate insurance, concurrent
in form or contributing in the event of loss with that required to be
maintained pursuant to this Section 5.10, unless the same is
permitted by Superior Instrument Requirements. Mortgagor shall
immediately notify Mortgagee whenever any such separate insurance is
taken out and shall promptly deliver to Mortgagee a duplicate
original of the policy of such insurance, a copy thereof certified by
the insurer or a certificate thereof. Provided that no Event of
Default has occurred and is continuing, all net business interruption
insurance proceeds shall be paid to Mortgagor, to be segregated from
the other funds of Mortgagor and held in trust by Mortgagor for the
following purposes and in the following order of priority: (i) for
the payment of Impositions and amounts due under the Facility Leases
and Superior Mortgage, (54)
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(ii) for debt service for the estimated period of Restoration (for
purposes of this Subsection 5.10(f), interest and principal payments
due on any payment date under the Senior Partnership Note will be
deemed to accrue in equal daily installments beginning the day after
the immediately preceding payment date and ending on such payment
date), and (iii) for any other expense incurred in connection with
the operation or business of the Casino Hotel.
(g) Insurance claims by reason of damage or destruction to any
portion of the Trust Estate may be adjusted by Mortgagor, but
Mortgagee shall have the right (but not the obligation) to join
Mortgagor in adjusting, and approving the adjustment of, any such
loss except in the event of a loss where the amount of insurance
reasonably anticipated to be received with respect to such loss is
less than $5,000,000, and Mortgagor shall assist Mortgagee in any
such adjustment at the request of Mortgagee. If Mortgagee at its
election as aforesaid joins Mortgagor in any adjustment process, then
Mortgagee's approval of the adjustment shall not be unreasonably
withheld.
(h) Notwithstanding anything contained herein to the contrary,
if an Event of Default shall have occurred and be continuing,
Mortgagee may, at its option, (A) refrain from paying to Mortgagor or
the Insurance Trustee any net insurance proceeds or (B) instruct the
Insurance Trustee to pay to Mortgagee any insurance proceeds then
held by the Insurance Trustee, as the case may be.
Section 5.11. Limitations on Building Demolition,
Alterations, Improvements and New Construction.
Mortgagor shall not authorize, permit or make any demolition,
alteration or improvement of any building, structure or other
improvements included in the Trust Estate or any new construction on
any part of the Trust Estate, except in conformity with and subject
to the limitations hereinafter in this Section 5.11 set forth and set
forth in the Senior Note Indenture.
Unless an Event of Default shall have occurred and be
continuing, Mortgagor shall have the right at all times to make or
permit such demolition, alterations, improvements or new
construction, structural or otherwise (herein sometimes called
collectively "Alterations" and each, individually, an "Alteration"),
of the Trust Estate, to be made in all cases subject to each of the
following conditions:
(a) No Alteration shall be undertaken or carried out except in
conformity with all Superior Instrument Requirements, Legal
Requirements and Insurance Requirements.
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(b) If the estimated cost of any Alteration, together with
other Alterations that constitute a single construction plan or
project (whether or not accomplished in several stages or
procedures), exceeds $5,000,000, the building or buildings,
structures or other improvements as so improved or altered, upon the
completion of the work, shall be of a value not less than the value
of such building or buildings, structures or other improvements
immediately prior to the making of such Alteration.
(c) Any Alteration which is structural in nature or involves an
estimated cost of more than $5,000,000 shall be conducted under the
supervision of an Architect, and no such Alteration shall be
undertaken until 10 days after there shall have been filed with
Mortgagee detailed plans and specifications and cost estimates
therefor, prepared and approved in writing by such Architect and
accompanied by a certificate of such Architect stating that such
plans and specifications conform to all applicable provisions of this
Section 5.11.
(d) No Alteration involving an estimated cost of more than
$5,000,000 shall be undertaken until Mortgagor has furnished to
Mortgagee, at Mortgagor's sole cost and expense, a surety bond or
bonds, covering performance, and labor and material payments with
respect to the work to be so performed, naming Mortgagee as obligee,
issued by a responsible surety company, authorized to do business in
the State of New Jersey, in a form generally and customarily used by
such surety in an amount equal to the estimated cost of construction
of the work covered by the plans and specifications therefor,
guaranteeing the performance and completion of such construction,
substantially in conformity with the said plans and specifications
and within a reasonable time, subject to delays by fire, strikes,
lock-out, acts of God, inability to obtain labor or materials,
governmental restrictions, enemy action, civil commotion or
unavoidable Casualty or other similar causes beyond the control of
Mortgagor, free and clear of all liens, claims and liabilities for
the cost of such Alterations. If such surety bond or bonds shall be
unobtainable Mortgagor shall deliver to Mortgagee security by cash,
letter of credit or other guarantee, affording substantially the same
protection as would such bond or bonds.
(e) All work done in connection with any Alterations shall be
done promptly and in good and workmanlike manner. The work in
connection with any Alteration shall be prosecuted with reasonable
dispatch, delays due to fire, strikes, lock-outs, acts of God,
inability to obtain labor or materials, governmental restrictions,
enemy action, civil commotion or unavoidable Casualty or similar
causes beyond the control of Mortgagor excepted.
(f) If the estimated cost of Alterations exceeds $5,000,000,
Mortgagor shall have delivered to Mortgagee (i) prior
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to the commencement of such Alterations, copies of all Permits
required for the commencement of such work together with a
certificate of the Architect or an Opinion of Counsel to the effect
that all Permits required for the commencement of such Alterations
have been obtained; and (ii) within a reasonable period of time after
the completion of the Alterations, copies of all Permits required in
connection with the completion thereof, together with either an
Opinion of Counsel or a certificate of the Architect that all such
Permits have been so obtained by Mortgagor and that Mortgagor has
complied with all the requirements of this Section 5.11.
(g) No Alterations of any kind shall be made which shall change
the use or reduce the size or quality of any building, structure or
other improvements in any material respect or which shall change the
use of the Casino Hotel from its use as a gaming and hotel facility.
(h) No Alterations costing in excess of $5,000,000, together
with other Alterations that constitute a single construction plan or
project (whether or not accomplished in several stages or
procedures), shall be made if such Alterations are not expected to be
completed at least 120 days prior to the Stated Maturity of the
Senior Partnership Note (except if such Alterations are required in
order to comply with Legal Requirements or Superior Instrument
Requirements).
(i) Mortgagor shall maintain at all times during the
performance of Alterations, in addition to any insurance required to
be maintained under Section 5.11 hereof, appropriate workers'
compensation insurance covering all persons employed for such
Alterations to the extent required by applicable law, and
comprehensive general liability insurance expressly covering the
additional hazards due to such Alterations. Each such policy of
insurance shall comply with the provisions of Section 5.10(b), and
Mortgagor shall comply with Subsections (c), (d), (e), (f), (g) and
(h) of Section 5.10 in connection with all such insurance.
Section 5.12. Leases.
Mortgagor shall not:
(a) lease the Trust Estate substantially as an entirety to any
Person (except in accordance with the provisions of Article Eight of
the Senior Note Indenture), nor shall Mortgagor lease either the
Casino Hotel or the Casino or the Hotel or any parking facilities
substantially as an entirety to any Person;
(b) enter into any Lease, or renew, modify, extend, terminate,
or amend any Lease, except in the ordinary course of business of
operating the Casino Hotel;
(57)
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(c) receive or collect, or permit the receipt or collection of,
any rental payments under any Lease more than one month in advance of
the respective periods in respect of which they are to accrue, except
that, in connection with the execution and delivery of any Lease or
of any amendment to any Lease, rental payments thereunder may be
collected and received in advance in an amount not in excess of three
months' rent and/or a security deposit may be required thereunder in
an amount not exceeding one year's rent;
(d) collaterally assign, transfer or hypothecate (other than to
Mortgagee hereunder, to the holder of the Senior Note Guarantee
Mortgage or to the holder of the Superior Mortgage, but in each case
only with respect to the property secured by such mortgage) (i) any
rental payment under any Lease whether then due or to accrue in the
future, (ii) the interest of Mortgagor as landlord under any Lease or
(iii) the rents, issues or profits of the Trust Estate;
(e) after the date hereof, enter into any Lease, or renew any
Lease, unless such Lease contains terms to the effect as follows:
(i) the Lease and the rights of the tenants thereunder
shall be subject and subordinate to the rights of Mortgagee
under this Mortgage and the holders of the Superior Mortgage,
(ii) the Lease may be assigned by the landlord thereunder
to Mortgagee, and
(iii) the rights and remedies of the tenant in respect of
any obligations of the landlord thereunder shall be nonrecourse
as to any assets of the landlord other than its equity in the
building in which the leased premises are located or the
proceeds thereof; or
(f) modify any Lease with respect to the matters described in
clauses (i) through (iii) of paragraph (e).
If Mortgagor enters into a Lease (other than with an Affiliate
of Mortgagor) for a term of not less than 3 years, Mortgagee shall
deliver a non-disturbance and attornment agreement substantially in
the form of Schedule 7 hereto, following receipt of a certificate of
a leasing broker (who is not an Affiliate of Mortgagor or the broker
involved in such transaction) experienced with respect to leases of
commercial space in the Atlantic City area stating that the rent
under the Lease throughout the term thereof is not less than fair
market rent and the other terms of the Lease are fair and reasonable
in the commercial leasing market. Mortgagor shall, upon demand,
(58)
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reimburse Mortgagee for any costs and expenses (including reasonable
attorneys' fees and disbursements) incurred by Mortgagee in
connection with the preparation, review and delivery of such
non-disturbance and attornment agreements.
Promptly after the execution and delivery hereof, Mortgagor
shall cause the lessee under each Lease now in effect, and promptly
after each Lease is executed or becomes effective after the date of
the execution and delivery hereof, Mortgagor shall cause the lessee
under each such Lease, to be duly notified in writing (unless the
substance and effect of such notice shall be contained in such Lease)
of the subjection of the owner's interest, as lessor, in and to such
Lease to the lien of this Mortgage and of the name and address of
Mortgagee. Each such notice shall state that the lease of such
lessee is a Lease as herein defined. If a new Mortgagee is at any
time appointed hereunder or the address of Mortgagee shall at any
time be changed, Mortgagor shall cause each lessee under each Lease
to be promptly notified in writing of the name and address of such
new Mortgagee or the new address of Mortgagee. Mortgagor shall use
reasonable efforts (but shall not be obligated to incur any
expenditure other than de minimis amounts) to obtain from each lessee
under each Lease to whom any notice is sent pursuant to this
paragraph an acknowledgment of receipt of such notice, and Mortgagor
shall promptly deliver to Mortgagee,, upon request, a copy of each
such acknowledgment of receipt which it is able to obtain. Mortgagee
shall not be responsible for securing or causing Mortgagor to secure
any such acknowledgment.
Section 5.13. Compliance Certificates.
Mortgagor shall deliver to Mortgagee, within 120 days after the
end of each fiscal year of Mortgagor, a Mortgagor's Certificate
stating that
(a) a review of the activities of Mortgagor during such year
and of performance under this Mortgage has been made under the
signer's supervision, and
(b) to the best of each signer's knowledge, based on such
review, Mortgagor has fulfilled all of Mortgagor's obligations under
this Mortgage throughout such year, or, if there has been a default
in the fulfillment of any such obligation, specifying each such
default known to him and the nature and status thereof.
Promptly after Mortgagor may reasonably be deemed to have
knowledge of a default hereunder, Mortgagor shall deliver to
Mortgagee a notice specifying the nature and period of existence
thereof and the action Mortgagor is taking and proposes to take with
respect thereto.
Section 5.14. To Keep Books; Inspection by Mortgagee.
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Mortgagor will keep proper books of record and account, in which
full and correct entries shall be made of all dealings or
transactions of or in relation to the Senior Partnership Note and the
properties, business and affairs of Mortgagor in accordance with
generally accepted accounting principles consistently applied. Said
books shall be maintained in an office located either in Atlantic
City, New Jersey or in the Borough of Manhattan, City of New York,
State of New York. Mortgagor shall at any and all times, upon
request of Mortgagee and at the expense of Mortgagor, permit
Mortgagee and its representatives to inspect the Casino Hotel and any
other buildings, structures and improvements now or hereafter located
on the Land and the books of account, records, reports and other
papers of Mortgagor, and to make copies and extracts therefrom, and
will afford and procure a reasonable opportunity to make any such
inspection (provided, that any such inspection shall not unreasonably
interfere with the business operations of Mortgagor), and Mortgagor
will furnish to Mortgagee any and all information as Mortgagee may
reasonably request, with respect to the performance by Mortgagor of
its covenants in this Mortgage.
Section 5.15. Advances by Mortgagee.
If Mortgagor shall fail to perform any of the covenants, terms,
provisions or conditions contained in this Mortgage and such failure
shall continue for 10 days following notice thereof given by
Mortgagee (or at any time, without notice, in case of emergency),
Mortgagee may (but is not obligated to), at any time and from time to
time, take any action or make advances, to effect performance of any
such covenant, term, provision or condition on behalf of Mortgagor;
and all moneys so used, paid or advanced by Mortgagee and all
reasonable costs and expenses incurred by Mortgagee in connection
therewith, together with interest on all of the same at the rate of
interest set forth in the Senior Partnership Note, shall be
immediately due and payable by Mortgagor to Mortgagee and all such
moneys, costs and expenses shall be secured by the lien of this
Mortgage prior to the Senior Partnership Note. No such advance or
payment by Mortgagee shall relieve Mortgagor from any default
hereunder or impair any right or remedy of Mortgagee.
Section 5.16. Waiver of Stay, Extension or Usury Laws.
Mortgagor covenants (to the extent that it may lawfully do so)
that it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any usury, stay
or extension law or any other law which would prohibit or forgive
Mortgagor from paying all or any portion of the obligations secured
by this Mortgage, wherever enacted, now or at any time hereafter in
force, or which may otherwise affect the covenants or the performance
of this Mortgage; and Mortgagor
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<PAGE>
(to the extent that it may lawfully do so) hereby expressly waives
all benefit or advantage of any such law, and covenants that it shall
not hinder, delay or impede the execution of any power herein granted
to Mortgagee, but shall suffer and permit the execution of every such
power as though no such law had been enacted.
Section 5.17. Eminent Domain.
(a) Mortgagor shall notify Mortgagee immediately upon obtaining
knowledge of any Taking affecting the Trust Estate or any part
thereof. If the Taking is a Taking of less than the whole or
substantially all of the Premises but (i) is estimated to result in
an award of more than $10,000,000 or (ii) the Taking will interfere
with or adversely affect the operation of the Casino Hotel (other
than any portion thereof consisting solely of unimproved, paved or
unpaved surface parking) other than to a de minimis extent, then
within 30 days after such Taking, Mortgagor shall deliver to
Mortgagee a certificate of an Architect stating whether, in such
Architect's opinion, applicable Legal Requirements permit the
Restoration of any buildings and improvements for the same uses and
to the same size and quality in all material respects as existed
immediately prior to the Taking (and if said certificate states that
Legal Requirements do not permit such Restoration, said certificate
shall describe the manner closest approximating such criteria to
which the buildings and improvements could be so restored and shall
be accompanied by a Certificate of Appraised Value dated not more
than 10 days prior to delivery setting forth the Appraised Value
immediately prior to the Taking and the estimated Appraised Value
immediately after the permitted Restoration). If Mortgagor is
required to deliver such Certificate of Appraised value and if based
on such Certificate of Appraised Value immediately after Restoration,
(i) the Outstanding Amount of Indebtedness of the Partnership
immediately after such Restoration shall exceed the greater of (A)
80% of the Appraised Value immediately after such Restoration or (B)
the quotient of the Outstanding Amount of Indebtedness of the
Partnership immediately prior to such Taking divided by the Appraised
Value immediately prior to the Taking multiplied by the Appraised
Value immediately after such Restoration, or (ii) applicable Legal
Requirements do not permit the Restoration of the Casino Hotel for
use as a casino and hotel complex, then, in any of such events, the
Taking shall be deemed a Taking of "the whole or substantially all of
the Premises." The Taking shall be deemed a Taking of "less than the
whole or substantially all of the Premises" if Mortgagor is not
required to deliver a Certificate Of Appraised Value or if, at the
time of delivery of such Certificate, neither of the tests set forth
in clauses (i) and (ii) is met.
(b) If at any time there shall occur a Taking of less than the
whole or substantially all of the Premises and the award or
(61)
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awards resulting therefrom payable to Mortgagor (and not to any
lessor under any Facility Lease or the holder of any Superior
Mortgage) (after there shall have been first deducted the fees and
expenses incurred in connection with the termination, settlement and
collection of such award or awards, including, without limitation,
reasonable counsel fees and expenses, hereinafter referred to as
"Settlement Costs") (i) shall be less than $10,000,000 (except to the
extent that the Insurance Trustee or a Depositary is required to hold
such amount pursuant to a Superior Instrument Requirement), the
entire amount of such award shall be paid to Mortgagor; and (ii) if
such award is $10,000,000 or more, the entire amount of such award
shall be paid to the Insurance Trustee (or other Depositary required
by a Superior Mortgage, provided that such Depositary holds such
award in trust for purposes of paying the cost of Restoration). In
either event, such awards shall be applied to the cost of Restoration
of the Trust Estate as nearly as practicable to their uses, value and
condition immediately prior to the Taking (except to the extent
otherwise provided by Superior Instrument Requirements). Mortgagor
shall promptly commence and with due diligence perform the
Restoration in accordance with clauses (iii), (iv) and (vii) of
Subsection 5.10(e) (after substituting the words "Taking" for
"Casualty" and "award" for "net insurance proceeds"), at no cost to
Mortgagee. All claims or suits arising out of any Taking may be
settled by Mortgagor, except that Mortgagee shall have the right (but
not the obligation) to participate in such claim or suit, and to
approve settlement thereof (and notwithstanding anything in the
Facility Leases to the contrary, Mortgagor shall not agree to any
settlement or compromise of the amount of any such claim or suit,
except a claim or suit where the amount reasonably anticipated to be
received by Mortgagor is less than $5,000,000). If Mortgagee at its
election as aforesaid joins such claim or suit, Mortgagee's approval
of such settlement shall not be unreasonably withheld. The Insurance
Trustee shall promptly pay such sums as are received by it from such
Taking from time to time in accordance with the procedures set forth
in clauses (v) and (vi) of Subsection 5.10(e) (after substituting the
words "Taking" for "Casualty" and "award" for "net insurance
proceeds").
(c) If at any time there shall occur a Taking of the whole or
substantially all of the Premises, then the award payable to
Mortgagor shall not be applied to Restoration but shall instead be
paid and delivered to the Trustee (subject to the rights of the
lessors under any Facility Leases and the holders of any Superior
Mortgages) to the extent of the then Outstanding Amount of the Senior
Partnership Note and any other interest or other sums due hereunder
or thereunder to be applied to the satisfaction of this Mortgage to
the extent proceeds are available for such purpose and provided that
no additional sums are due the Trustee or the Holders under the
Mortgage Senior
(62)
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Partnership Notes or the Senior Note Indenture, the balance of any
award shall be paid to Mortgagor.
(d) Notwithstanding anything contained herein to the contrary,
if an Event of Default shall have occurred and is continuing,
Mortgagee may, at its option, (i) refrain from paying to Mortgagor or
the Insurance Trustee any award or (ii) instruct the Insurance
Trustee to pay to Mortgagee any award then held by the Insurance
Trustee, as the case may be.
Section 5.18. Facility Leases.
(a) Mortgagor shall do or cause to be done all things necessary
to preserve and keep unimpaired the rights of Mortgagor, as lessee
under all Facility Leases, and, to prevent any termination,
surrender, cancellation, forfeiture or impairment of any thereof.
Mortgagor shall at all times fully perform and comply with all
agreements, covenants, terms and conditions imposed upon or assumed
by it as lessee under each of the Facility Leases (including, without
limitation, the covenant to pay rent and all taxes, assessments and
other charges mentioned therein) prior to the expiration of any
notice and/or cure period provided in each such Facility Lease. Upon
receipt by Mortgagee from a Lessor of any written notice of default
by the lessee thereunder, Mortgagee may rely thereon and take any
action Mortgagee deems necessary in its sole discretion to prevent or
to cure any default by Mortgagor in the performance of or compliance
with any of the agreements, covenants, terms or conditions imposed
upon or assumed by Mortgagor as lessee under such Facility Lease,
even though the existence of such default or the nature thereof be
questioned or denied by Mortgagor or by any party on behalf of
Mortgagor. Without limiting the generality of Section 3.9, Mortgagor
hereby expressly grants to Mortgagee, and agrees that Mortgagee shall
have, the absolute and immediate right to enter in and upon the
Premises or any part thereof to such extent and as often as
Mortgagee, in its sole discretion, deems necessary or desirable for
the purpose permitted by the immediately preceding sentence, subject
only to applicable Legal Requirements. Without limiting Mortgagor's
obligations or Mortgagee's rights set forth above or limiting
Mortgagee's other remedies under this Mortgage, Mortgagee may pay and
expend such sums of money as Mortgagee in its sole discretion deems
necessary for any such purpose, and Mortgagor hereby agrees to pay to
Mortgagee immediately and without demand, all such sums referred to
above, so paid and expended by Mortgagee, together with interest
thereon from the date of each such payment at the highest rate of
interest set forth in the Senior Partnership Note. All sums so paid
and expended by Mortgagee, and the interest thereon, shall be added
to and be secured by the lien of this Mortgage.
(b) Mortgagor further covenants and agrees as follows:
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(i) Mortgagor shall not surrender, terminate or cancel any
Facility Lease, and shall not without the consent of Mortgagee
modify, change, supplement, alter or amend any Facility Lease
either orally or in writing if an impairment of the security
granted under this Mortgage would result therefrom. As further
security for the repayment of the indebtedness secured hereby
and for the performance of the covenants herein and in each
Facility Lease contained, Mortgagor hereby assigns to Mortgagee
all of Mortgagor's rights, privileges and prerogatives as lessee
under each Facility Lease to terminate, cancel, modify, change,
supplement, alter or amend such Facility Lease and any such
termination, cancellation, modification, change, supplement,
alteration or amendment of a Facility Lease without the prior
consent thereto by Mortgagee shall be void and of no force and
effect. Unless (1) an Event of Default has occurred and is
continuing and (2) either (A) there has been an acceleration of
maturity of the Senior Partnership Note pursuant to Section 3.2
or (B) Mortgagee exercises its rights under Section 3.9,
Mortgagee shall have no right to terminate, cancel, modify,
change, supplement, alter or amend any Facility Lease.
(ii) Solely for the benefit of Mortgagee, Trustee, the
Holders and no other person, no release or forbearance of any of
Mortgagor's obligations under any Facility Lease, pursuant to
such Facility Lease or otherwise, shall release Mortgagor from
any of Mortgagor's other obligations under this Mortgage.
(iii) Unless Mortgagee shall otherwise expressly consent
in writing, the fee title to the Leased Facilities and
Mortgagor's leasehold estates therein shall not merge and shall
always remain separate and distinct, notwithstanding the union
of said estates either in the Lessor or in the lessee, or in a
third party by purchase or otherwise
(iv) Mortgagor shall promptly notify Mortgagee in writing
of any request made by Mortgagor, as lessee under any Facility
Lease, or any of the Lessors, for arbitration proceedings under
any Facility Lease and of the institution of any arbitration
proceedings, as well as all proceedings thereunder. Mortgagor
shall promptly deliver to Mortgagee a copy of the determination
of the arbitrators in each such arbitration proceeding.
Mortgagee shall have the right to participate in such
arbitration proceedings in association with Mortgagor or on its
own behalf as an interested party.
(64)
<PAGE>
(v) Mortgagor shall not consent to the subordination of
any Facility Lease to any mortgage, deed of trust or other lien
on the fee interest of the Lessor.
(vi) If Mortgagor acquires fee simple title or any other
estate, title or interest in any Leased Facility, Mortgagor
shall promptly notify Mortgagee of such acquisition and, on
request by Mortgagee, shall cause to be executed and recorded
all such other and further assurances or other instruments in
writing as may in the opinion of Mortgagee be required or
desirable to carry out the intent and meaning of clause (x) of
Granting Clause Third.
(vii) Within 5 days after Mortgagor's receipt of any
notice of any motion, application or effort to reject any
Facility Lease by any Lessor or any trustee arising from or in
connection with any case, proceeding or other action commenced
or pending by or against any Lessor under the Code or any
comparable provision contained in any present or future federal,
state, local, foreign or other statute, law, rule or regulation
("Comparable Provision"), Mortgagor shall give notice thereof to
Mortgagee. Mortgagor hereby (A) assigns to Mortgagee any and
all of Mortgagor's rights as lessee under Section 365(h) of the
Code or any Comparable Provision and (B) covenants that it shall
not elect to treat any Facility Lease as terminated pursuant to
Section 365(h) of the Code or any Comparable Provision without
the prior consent of Mortgagee and (C) agrees that any such
election by Mortgagor without such consent shall be null and
void.
(viii) Without limiting the generality of the foregoing,
to the extent permitted by applicable law, Mortgagor hereby
unconditionally assigns, transfers and sets over to Mortgagee
all of Mortgagor's claims and rights to the payment of damages
arising from any rejection by Lessor of any Facility Lease under
the Code or any Comparable Provision. Mortgagee shall have the
right to proceed in its own name or in the name of Mortgagor in
respect of any claim, suit, action or proceeding relating to the
rejection of any Facility Lease, including, without limitation,
the right to file and prosecute, in cooperation with Mortgagor,
any proofs of claim, complaints, motions, applications, notices
and other documents, in any case in respect of Lessor under the
Code or any Comparable Provision. This assignment constitutes a
present, irrevocable and unconditional assignment of the
foregoing claims, rights and remedies, and shall continue in
effect until all of the indebtedness and obligations secured by
this Mortgage shall have been satisfied and discharged in full.
Any amounts received by Mortgagee in damages arising out of the
rejection of any Facility Lease as aforesaid shall be applied
first to all reasonable costs and expenses of
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Mortgagee (including, without limitation, reasonable attorneys' fees,
disbursements and court costs) incurred in connection with the
exercise of any of its rights or remedies under this Section 5.18,
and thereafter as provided in Section 3.3.
(ix) If there shall be filed by or against Mortgagor a
petition under the Code or any Comparable Provision and
Mortgagor, as lessee under any Facility Lease, shall determine
to reject such Facility Lease, Mortgagor shall give Mortgagee
not less than 10 days' prior notice of the date on which
Mortgagor shall apply to the Bankruptcy Court or other judicial
body with appropriate jurisdiction for authority to reject such
Facility Lease. Mortgagee shall have the right, but not the
obligation, to serve upon Mortgagor within such 10-day period a
notice stating that (a) Mortgagee demands that Mortgagor assume
and assign such Facility Lease to Mortgagee pursuant to Section
365 of the Code or any Comparable Provision and (b) Mortgagee
covenants to cure or provide adequate assurance of prompt cure
of all defaults and provide adequate assurance of future
performance under such Facility Lease. If Mortgagee serves upon
Mortgagor the notice described in the preceding sentence,
Mortgagor shall not seek to reject such Facility Lease and shall
comply with the demand provided for in clause (a) of the
preceding sentence within 30 days after the notice shall have
been given subject to the performance by Mortgagee of the
covenant provided for in clause (b) of the preceding sentence.
The foregoing provisions of this Section 5.18(ix) shall not
apply to the extent not permitted by applicable law. Effective
upon the entry of an order for relief in respect of Mortgagor
under Chapter 7 of the Code or any Comparable Provision,
Mortgagor hereby assigns and transfers to Mortgagee a
non-exclusive right to apply to the Bankruptcy Court or other
judicial body with appropriate jurisdiction for an order
extending the period during which such Facility Lease may be
rejected or assumed.
(x) Mortgagor shall promptly give to Mortgagee copies of
(A) all notices of default and (B) any other communications or
notices with respect to events that relate to the possible
impairment of the security of this Mortgage, which Mortgagor
shall give or receive under any Facility Lease and shall
promptly notify Mortgagee of any default under any Facility
Lease on the part of the Lessor or Mortgagor.
(xi) Mortgagor shall enforce with due diligence all of the
obligations of the Lessor under each Facility Lease, to the end
that Mortgagor may enjoy all of the rights and privileges
granted to it under the Facility Leases.
(66)
<PAGE>
(xii) Mortgagor shall notify Mortgagee within 5 days after
the transfer of a fee interest in any Leased Facility or any
portion thereof to or from an Affiliate.
(xiii) No Affiliate of Mortgagor shall at any time
hereafter acquire fee title to the Leased Land or any portion
thereof unless simultaneously with such acquisition such
Affiliate and Mortgagor execute and exchange (and deliver to the
Trustee an executed counterpart of) an instrument in form and
substance satisfactory to Mortgagee providing that so long as
such Affiliate owns such fee title (A) such Affiliate shall not
terminate the applicable Facility Lease for any reason
whatsoever (including, without limitation, due to the default of
Mortgagor under such FacilitY Lease) and (B) such Affiliate
shall not accept, and, if tendered by Mortgagor shall promptly
return to Mortgagor, any payment of rent or other charges
payable under such Facility Lease in excess of the amount
required to pay the debt service and other sums payable under
any mortgage affecting such Affiliate's fee interest in the
applicable Leased Facility (and such Affiliate shall use such
funds only to pay its debt service obligations and other sums
payable under such mortgage) at any time that an Event of
Default, or a Default of the types described in Section 3.1(a),
(b) and (f) of this Mortgage or Section 5.1(a), (b), (f) or (g)
of the Senior Note Indenture, shall have occurred and be
continuing under this Mortgage or the Senior Note Indenture.
(c) Subject to the provisions of Subsection 5.18(b)(iii), if
both the lessor's and lessee's estates under any Facility Lease or
any portion thereof shall at any time become vested in one owner,
this Mortgage and the lien created hereby shall nevertheless not be
destroyed or terminated by application of the doctrine of merger and,
in such event, Mortgagee shall continue to have all of the rights and
privileges of a first leasehold mortgagee.
(d) Mortgagor hereby acknowledges that if any Facility Lease
shall be terminated prior to the natural expiration of its term due
to default by the lessee thereunder, and if pursuant to such Facility
Lease, Mortgagee or its designee shall acquire from the Lessor a new
lease of the Leased Facility or any portion thereof, Mortgagor shall
have no right, title or interest in or to such lease or the leasehold
estate created thereby, or the options therein contained.
(e) Each Facility Lease hereafter entered into or assumed by
Mortgagor as lessee or sublessee shall contain provisions (i)
permitting the assignment of the same to Mortgagee and the Trustee
and permitting assignment without the lessor's consent if this
Mortgage is foreclosed; and (ii) providing protection to
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Mortgagee, as leasehold mortgagee, in form reasonably satisfactory to
Mortgagee.
Section 5.19. Superior Mortgage.
(a) Mortgagor shall at all times fully perform and comply with
all agreements, covenants, terms and conditions imposed upon or
assumed by it as mortgagor under the Superior Mortgage prior to the
expiration of any notice and/or cure period provided in each such
Superior Mortgage. If a notice of default has been given by the
holder of the Superior Mortgage, Mortgagee may rely thereon and take
any action Mortgagee deems necessary in its sole discretion to
prevent or to cure any default by Mortgagor in the performance of or
compliance with any of the agreements, covenants, terms or conditions
imposed upon or assumed by Mortgagor as mortgagor under the Superior
Mortgage even though the existence of such default or the nature
thereof be questioned or denied by Mortgagor or by any party on
behalf of Mortgagor. Without limiting the generality of Section 3.9,
Mortgagor hereby expressly grants to Mortgagee, and agrees that
Mortgagee shall have, the absolute and immediate right to enter in
and upon the Premises or any part thereof to such extent and as often
as Mortgagee, in its sole discretion, deems necessary or desirable
for the purpose permitted by the immediately preceding sentence,
subject only to applicable Legal Requirements. Without limiting
Mortgagor's obligations or Mortgagee's rights set forth above or
limiting Mortgagee's other remedies under this Mortgage, Mortgagee
may (i) pay and expend such sums of money as Mortgagee in its sole
discretion deems necessary or desirable for any such purpose and (ii)
in its sole discretion prepay the Superior Mortgage then in default,
and Mortgagor hereby agrees to pay to Mortgagee immediately and
without demand, all such sums referred to in (i) and (ii) above so
paid and expended by Mortgagee, together with interest thereon from
the date of each such payment at the highest rate of interest set
forth in the Senior Partnership Note. All sums so paid and expended
by Mortgagee and the interest thereon, shall be added to and be
secured by the lien of this Mortgage.
(b) Mortgagor further covenants and agrees:
(i) Mortgagor shall not, without first obtaining the
consent of Mortgagee in each instance: (A) modify, replace or
refinance the Superior Mortgage if (x) the collateral securing
the lien thereof would be increased thereby (other than after-
acquired property required by the terms of the Superior Mortgage
to be encumbered thereby) or (y) such modification, replacement
or refinancing violates any other provision of this Senior Note
Mortgage or the Senior Note Indenture or (B) acquire or permit
or suffer any Affiliate of Mortgagor to acquire the Superior
Mortgage or any Interest therein;
(68)
<PAGE>
(ii) Mortgagor shall timely pay and perform all of the
obligations to be paid or performed by the mortgagor under the
Superior Mortgage, the note secured thereby and any other
instrument evidencing or securing the indebtedness owing to any
holder of the Superior Mortgage;
(iii) at any time and from time to time, Mortgagor shall
upon request of Mortgagee promptly use its reasonable efforts to
obtain an estoppel certificate or letter addressed to Mortgagee
from the holder of the Superior Mortgage, such certificate or
letter to be in such form as Mortgagee shall reasonably request;
(iv) Mortgagor shall promptly give to Mortgagee copies of
(A) all notices of default or (B) any other notice or
communication with respect to events which relate to the
possible impairment of the security of this Mortgage, which
Mortgagor shall give or receive under the Superior Mortgage and
shall promptly notify Mortgagee of any default under the
Superior Mortgage on the part of Mortgagor.
Section 5.20. Indemnification.
Mortgagor shall protect, indemnify, hold harmless and defend
Mortgagee and its directors, officers, partners, shareholders,
agents, servants and employees from and against any and all
liabilities, obligations, claims, damages, penalties, causes of
action, costs and expenses (including, without limitation, reasonable
attorneys' fees, disbursements and court costs), imposed upon or
incurred by or asserted against Mortgagee by reason of (a) any injury
to or death of Persons or loss of or damage to property occurring on
or about the Premises or any part thereof or the adjoining sidewalks,
curbs, vaults and vault spaces, if any, streets, alleys or ways, (b)
any use, nonuse or condition of the Premises or any part thereof or
the adjoining sidewalks, curbs, vaults and vault spaces, if any,
streets, alleys or ways, (c) any failure on the part of Mortgagor to
perform or comply with any of the terms of this Mortgage, (d)
performance of any labor or services or the furnishing of any
materials or other property in respect of the Premises or any part
thereof made or suffered to be made by or on behalf of Mortgagor, (e)
any negligence or tortious act on the part of Mortgagor or any of its
agents, contractors, lessees, licensees or invitees, or (f) any work
in connection with the Premises; provided, that no amounts shall be
payable to Mortgagee under this Section 5.20 in respect of
liabilities, obligations, claims,<PAGE>
(69)
<PAGE>
damages, penalties, causes of action, costs or expenses imposed upon
or incurred by or asserted against Mortgagee to the extent the same
result from any negligence or tortious act on the part of Mortgagee
or any of its agents, contractors, lessees, licensees or invitees.
All amounts payable to Mortgagee under this Section 5.20 shall be
payable on demand; provided, that with respect to consequential
damages (other than attorneys' fees, disbursements and court costs
imposed upon or incurred by Mortgagee in connection therewith, which
shall in all events be payable on demand), no such amounts shall be
payable until, and to the extent that, (i) there has been entered the
final determination of a court of competent jurisdiction awarding
such consequential damages to the party or parties seeking such
damages or (ii) an agreement of settlement with respect thereto
(which shall have been previously approved by Mortgagor, such consent
not to be unreasonably withheld) shall have been executed by
Mortgagee and such party or parties. Any such amounts which are not
paid within 5 days after demand therefor by Mortgagee shall bear
interest at the rate set forth in the Senior Partnership Note from
the date of such demand and all such amounts and interest thereon
shall be secured by the lien of this Mortgage. In case any action,
suit or proceeding is brought against Mortgagee by reason of any such
occurrence, Mortgagor, upon request of Mortgagee, shall, at
Mortgagor's expense, resist and defend such action, suit or
proceeding or cause the same to be resisted or defended by counsel
designated by Mortgagor and approved by Mortgagee, which approval
shall not be unreasonably withheld; provided, that Willkie, Farr &
Gallagher is hereby approved by Mortgagee.
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed and attested, all as of the day and
year first above written.
TRUMP'S CASTLE ASSOCIATES
Witness: ____________________ By: _________________________
Name:
Title:
TRUMP'S CASTLE FUNDING, INC.
Witness: ____________________ By: _________________________
Name:
Title:
(70)
<PAGE>
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the _____ day of December, 1993, before me personally came
Donald J. Trump, to me known, who, being by me duly sworn, did depose
and say that he resides at 721 Fifth Avenue, New York, New York; that
he is President of Trump's Castle Funding, Inc., one of the
corporations described in and which executed the above instrument;
that he knows the corporate seal of such corporation; that the seal
affixed to said instrument is such corporate seal; that it was so
affixed pursuant to authority of the Board of Directors of such
corporation; and that he signed his name thereto pursuant to like
authority.
(NOTARIAL SEAL)
_________________________
(71)
<PAGE>
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the _____ day of December, 1993, before me personally came
Donald J. Trump, to me known, who, being by me duly sworn, did depose
and say that he resides at 721 Fifth Avenue, New York, New York; that
he is President of Trump's Castle Funding, Inc., one of the
corporations described in and which executed the above instrument;
that he knows the corporate seal of such corporation; that the seal
affixed to said instrument is such corporate seal; that it was so
affixed pursuant to authority of the Board of Directors of such
corporation; and that he signed his name thereto pursuant to like
authority.
(NOTARIAL SEAL)
_________________________
(72)
<PAGE>
<PAGE>
SCHEDULE 1
OWNED LAND
All the real property located in the City of Atlantic City, County of
Atlantic, State of New Jersey and more particularly described as
follows:
Hotel Parcel:
All that certain real property hereinafter particularly described
situate, lying and being in the City of Atlantic City, County of
Atlantic and State of New Jersey.
BEGINNING at the point of intersection of the Northwesterly line of
Huron Avenue (100 feet wide) and the Northeasterly line of the
Atlantic - Brigantine Boulevard, said Boulevard also known as State
Highway Route 87, and extending thence
1. North 45 degrees 50' 06" West in and along the Atlantic-
Brigantine Boulevard, 56.63'; thence
2. North 19 degrees 16' 38" East, still in and along said
Boulevard, 81.94' to a point of curve; thence
3. Curving to the right in the arc of a circle having a radius
of 783.00', the arc length of 72.815' to a point of reverse curve;
thence
4. Curving to the left in the arc of a circle having a radius
of 837.00', the arc length of 77.836' to another point of reverse
curve; thence
5. Curving to the right in the arc of a circle having a radius
of 2946.00', the arc length of 1017.42' to a point; thence
6. North 44 degrees 34' 15" East, 135.02' to a point of curve;
thence
7. Curving to the right in the arc of a circle having a radius
of 2936.00', the arc length of 105.48' to a point; thence
8. South 27 degrees 28' 00" East, at right angles to Huron
Avenue 842.02' to the northwesterly line of Huron Avenue; thence
9. South 62 degrees 32' 00" West, in and along the
northwesterly line of Huron Avenue, 1229.40 feet to the point and
place of BEGINNING.
EXCEPTING THEREOUT AND THEREFROM the property which was conveyed to
the State of New Jersey by the Deed recorded in Deed Book 3980 page
180 and in Deed Book 4031 page 299.
BEING ALSO KNOWN AND DESIGNATED as Lot 9 in Block H-19 on the Tax Map
of the City of Atlantic City.
PARKING FACILITIES PARCEL
BEGINNING at a point in Beach Thorofare at the easterly corner of the
parcel of lands containing an area of 6.199 acres more or less which
was conveyed by the West Jersey and Seashore Railroad Company to the
Press Union Publishing Company by deed dated January 9, 1940, and
recorded January 17, 1940 in Deed Book 1099 page 420, said beginning
point being South 24 degrees 54 minutes 00 seconds West, a distance
of 100.16 feet from a monument set in the southeasterly line of
Absecon Boulevard (also known as U.S. Route 30) (190 feet wide), and
extending from said beginning point; thence,
(1) In Beach Thorofare, South 24 degrees 54 minutes 00 seconds West,
a distance of 259.81 feet to a point; thence
(2) Continuing in and along same, South 44 degrees 54 minutes 00
seconds West, a distance of 445.50 feet to a point; thence,
(3) Continuing in and along same, South 72 degrees 24 minutes 00
seconds West a distance of 224.40 feet to a point; thence
(4) Continuing in and along same, North 68 degrees 21 minutes 00
seconds West, a distance of 478.50 feet to a point; thence
(5) Continuing in and along same, North 76 degrees 06 minutes 00
seconds West, a distance of 363.00 feet to a point; thence
(6) Continuing in and along same, South 82 degrees 39 minutes 00
seconds West, a distance of 429.00 feet to a point; thence,
(7) Continuing in and along same, North 17 degrees 59 minutes 20
seconds East, a distance of 320.65 feet to a point located in
the approximate high water line of Beach Thorofare, said point
also being a corner of lands now or formerly in Daniel Adams, et
al, as recorded in Deed Book CC Page 272; thence,
(8) North 39 degrees 01 minutes 00 seconds West, leaving Beach
Thorofare, in and along the line of lands now or formerly of
Daniel Adams, et al, a distance of 1089.00 feet to a point in
the southeasterly line of lands now or formerly of Lot 307 in
Block 201 as shown on the current official tax map for the City
of Atlantic City, said point also being a corner to lands now or
formerly of Daniel Adams, et al; thence,
(9) North 57 degrees 59 minutes 00 seconds East, in and along the
said lands, a distance of 1113.19 feet to a point in the
aforesaid southwesterly line of Absecon Boulevard; thence,
(10) South 22 degrees 46 minutes 10 seconds East, in and along same,
a distance of 185.42 feet to a point of curve; thence,
(11) Southeastwardly, in and along same and in the arc of a circle
curving to the left having a radius of 1527.69 feet the arc
length of 213.90 feet to a point in the northwesterly line of
Lot 230 in said Block 201; thence,
(12) South 09 degrees 08 minutes 24 seconds East, in the
southwesterly line of Absecon Boulevard, a distance of 87.75' to
a point of curve; thence
(13) Curving to the left along the line of Absecon Boulevard, in the
arc of a circle having a radius of 332.00', the arc length of
201.61' to a point of tangent; thence
(14) South 43 degrees 56 minutes 03 seconds East, continuing in and
along the southwesterly line of Absecon Boulevard, a distance of
128.55' to a point; thence
(15) South 82 degrees 36 minutes 59 seconds East, continuing in and
along the said southwesterly line of Absecon Boulevard, a
distance of 10.00' to a point; thence
(16) Curving to the right along the line of Absecon Boulevard, in the
arc of a circle having a radius of 70.00', the arc length of
47.26' to a point of tangent; thence
(17) North 46 degrees 03 minutes 57 seconds East, along the line of
Absecon Boulevard, a distance of 20.81' to a point which is
radially distant 95.00' from the centerline of Absecon Boulevard
(190' wide) at station 335+98.63'; thence
(18) Curving to the left in the Southwesterly line of Absecon
Boulevard, in the arc of a circle having a radius of 1527.69',
the arc length of 70.33' to the northwesterly line of lot 230 in
said block 201; thence
(19) South 41 degrees 59 minutes 00 seconds West, in and along same,
a distance of 125.00' to the extreme westerly corner of said lot
230; thence
(20) Southeastwardly, in and along the southwesterly line of same,
concentric with Absecon Boulevard, in the arc of a circle
curving to the left, having a radius of 1652.69', the arc length
of 324.55' to the extreme southeasterly corner of said lot 230;
thence
(21) North 30 degrees 43 minutes 55 seconds East, in and along the
southeasterly line of same, a distance of 125.00' to a point in
the aforesaid southwesterly line of Absecon Boulevard; thence
(22) Southeastwardly, in and along same and in the arc of a circle
curving to the left, having a radius of 1527.69', the arc length
of 245.58' to a point of tangency; thence
(23) South 68 degrees 22 minutes 10 seconds East, in and along same,
a distance of 50.00' to a point in the westerly line of the
previously mentioned 6.199 acre parcel, also being the
northwesterly line of lot 150 in said block 201; thence
(24) South 21 degrees 38 minutes 00 seconds West, in and along same,
a distance of 100.00' to a corner in said lot 150; thence
(25) Continuing in and along same, north 68 degrees 22 minutes 10
seconds west, a distance of 94.75' to a corner; thence
(26) Continuing in and along same, south 27 degrees 48 minutes 00
seconds west, a distance of 89.04' to a corner; thence
(27) Continuing in and along same, south 54 degrees 39 minutes 00
seconds west, a distance of 65.88' to a corner; thence
(28) Continuing in and along same, south 71 degrees 53 minutes 00
seconds west, a distance of 201.55' to a corner; thence
(29) Continuing in and along same, south 51 degrees 29 minutes 00
seconds east, a distance of 172.09' to a corner; thence
(30) Continuing in and along same, south 25 degrees 20 minutes 00
seconds east, a distance of 216.73' to a corner; thence
(31) Continuing in and along same and crossing the aforesaid high
water line of Beach Thorofare, south 84 degrees 22 minutes 00
seconds east, a distance of 256.83 to a corner; thence
(32) Continuing in and along same, north 79 degrees 58 minutes 00
seconds east, a distance of 279.10' to a corner; thence
(33) Continuing in and along same, north 41 degrees 22 minutes 00
seconds east, a distance of 266.39 to the point and place of
BEGINNING.
IN compliance with Chapter 157, Laws of 1977 premises herein are
known as Lot 231 in Block 201 as shown on the official tax map of
Atlantic City, New Jersey.
(PEDESTRIAN BRIDGE)
Air rights, rights of way and easements including the right to
construct, maintain and use a Pedestrian Bridge across Huron Avenue
connecting Property One Tract I with Property One Tract III contained
in Ordinance No. 2 of 1988 and affecting the following described
premises:
ALL that certain lot, tract, or parcel of land and premises situate,
lying, and being in the City of Atlantic City, County of Atlantic,
and State of New Jersey, bounded and described as follows:
BEGINNING at a point in the southerly line of Huron Avenue (100'
wide), said point being distant 956.00' eastwardly from the easterly
line of Maryland Avenue (65' wide), if same were extended
northwardly, and extending from said beginning point; thence
(1) North 27 degrees 28 minutes 00 seconds West, crossing Huron
Avenue, a distance of 100.00' to the northerly line of Huron
Avenue; thence
(2) North 62 degrees 32 minutes 00 seconds East, in and along the
northerly line of Huron Avenue, a distance of 30.00'; thence
(3) South 27 degrees 28 minutes 00 seconds East, crossing Huron
Avenue, a distance of 100.00' to the southerly line of Huron
Avenue; thence
(4) South 62 degrees 32 minutes 00 seconds West, in and along the
southerly line of Huron Avenue, a distance of 30.00' to the
point and place of BEGINNING.
BEING an area above the horizontal plane of Huron Avenue between the
elevation of 25.00 M.S.L. datum and 50.00 M.S.L. datum.<PAGE>
SCHEDULE 2
Leased Land
THE FARLEY STATE MARINA SITE
Beginning at the southeasterly corner of Maryland Avenue (68.00'
wide and Huron Avenue 100.00' wide) and extending from said beginning
point; thence
(1) South 27 degrees 28 minutes 00 seconds-East, in and along
the easterly line of Maryland Avenue, a distance of
804.15'; thence
(2) North 62 degrees 32 minutes 00 seconds East parallel with
Huron Avenue, a distance of 200.00'; thence
(3) South 27 degrees 28 minutes 00 seconds East, parallel with
Maryland Avenue, a distance of 1060.85' to a point distant
1745.00' northwardly at right angles from the northerly
line of Mediterranean Avenue (60.00' wide), said point
being in the fifth course as recited in the Riparian Grant
from the State of New Jersey to the City of Atlantic City,
dated March 15, 1920 and recorded in the clerk's office of
Atlantic County in Book 632 of Deeds, Page 117, etc.;
thence
(4) North 62 degrees 32 minutes 00 seconds East, parallel with
Huron Avenue, and in and along said aforementioned Riparian
Grant Line, a distance of 25.00'; thence
(5) North 27 degrees 28 minutes 00 seconds West, parallel with
Maryland Avenue, and in and along said aforementioned
Riparian Grant Line, a distance of 9.26'; thence
(6) North 09 degrees 01 minutes 00 seconds East, in and along
said aforementioned Riparian Grant Line, a distance of
0.04'; thence
(7) North 02 degrees 18 minutes 00 seconds East, in and along
said aforementioned Riparian Grant Line, a distance of
590.00'; thence
(8) North 62 degrees 32 minutes 00 seconds East, parallel with
Huron Avenue, in and along said aforementioned Riparian
Grant Line, a distance of 160.00'; thence
(9) North 41 degrees 39 minutes 00 seconds East, in and along
said aforementioned Riparian Grant Line, a distance of
255.00'; thence
(10) North 47 degrees 34 minutes 00 seconds East, in and along
said aforementioned Riparian Grant Line, a distance of
285.00'; thence
(11) North 56 degrees 02 minutes 00 seconds East, in and along
said aforementioned Riparian Grant Line, a distance of
360.80' to a point distance 1550.00' eastwardly at right
angles from the easterly line of Maryland Avenue; thence
(12) North 27 degrees 28 minutes 00 seconds West, parallel with
Maryland Avenue, a distance of 568.21'; thence
(13) North 62 degrees 32 minutes 00 seconds East, parallel with
Huron Avenue, a distance of 200.00' to the westerly line of
Rhode Island Avenue (50.00' wide); thence
(14) North 27 degrees 28 minutes 00 seconds West in and along
the westerly line of Rhode Island Avenue, a distance of
570.00' to the southerly line of Huron Avenue; thence
(15) South 62 degrees 32 minutes 00 seconds West, in and along
the southerly line of Huron Avenue, a distance of 1750.00'
to the point and place of BEGINNING.
EXCEPTING THEREOUT AND THEREFROM the following parcel of land
described as:
MARINE POLICE BUILDING PARCEL
BEGINNING at a point in the westerly line of Rhode Island Avenue
(50.00 feet wide), said point being distant 570.00 feet south of the
southerly line of Huron Avenue (100.00 feet wide) and extending;
thence
1. South 62 degrees 32 minutes 00 seconds West, parallel with Huron
Avenue, and in and along the division line between Lot 10 and
Lot 11 in Block B-4 as shown on the current taxing plan of the
City of Atlantic City, a distance of 97.97 feet; thence
2. North 27 degrees 28 minutes 00 seconds West, parallel with Rhode
Island Avenue, a distance of 179.00 feet; thence
3. North 62 degrees 32 minutes 00 seconds East, parallel with Huron
Avenue, a distance of 97.97 feet to the Westerly line of Rhode
Island Avenue; thence
4. South 27 degrees 28 minutes 00 seconds East, in and along the
westerly line of Rhode Island Avenue, a distance of 179.00 feet
to the point and place of BEGINNING.
ALSO EXCEPTING THEREON AND THEREFROM such land and improvements being
referred to as the 7 berths on K dock, for use of the Marina Law
Enforcement Bureau as further described in the Lease and further
shown on survey by Arthur W. Ponzio Co. & Assoc., Inc., dated
December 28, 1993 and bearing Job No 18488.
In compliance with Chapter 157, Laws of 1977, premises herein
are known as part of Lot 11 in Block B-4 as shown on the official tax
map of Atlantic City, New Jersey.
<PAGE>
SCHEDULE 3
Existing Encumbrances
<PAGE>
SCHEDULE 4
FORM OF NON-DISTURBANCE
AND ATTORNMENT AGREEMENT
THIS AGREEMENT, made as of the ______ day of ________
by and between
having an office at
(hereinafter called "Mortgagee") and
a having an
office at (hereinafter
called "Tenant").
W I T N E S S E T H:
WHEREAS, Mortgagee is the mortgagee under that certain
Indenture of Mortgage dated _____________ (said mortgage, as it
may be amended, increased, renewed, modified, consolidated, replaced,
combined, substituted, severed, split, spread or extended, being
hereinafter referred to as the "Mortgage") between Trump's Castle
Funding, Inc. ("Funding") and Trump's Castle Associates which
encumbers Trump's Castle Casino Hotel and certain other real property
located in Atlantic City, New Jersey, more particularly described in
Exhibit A hereto. Funding assigned all of its right, title and
interest in the Mortgage to _____________________ , as Trustee,
pursuant to an Assignment Agreement dated ______ , 1993; and
WHEREAS, Tenant has entered into a certain agreement
of lease dated [as amended by agreements dated
and ] and as it may be hereafter amended from time to
time (the "Lease") covering (the "Demised Premises").
NOW, THEREFORE, in consideration of the mutual agreements herein
contained and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree
as follows:
1. Tenant covenants and agrees that the Lease now is and shall
at all times continue to be subject and subordinate in each and every
respect to the Mortgage. Tenant, upon request, shall execute and
deliver any certificate or other instrument which the Mortgagee may
reasonably request to confirm said subordination by Tenant.
2. Tenant certifies that the Lease is presently in full force
and effect and unmodified and no base rent payable thereunder has
been paid more than one (1) Year in advance of its due date, and that
no default exists under the Lease which has continued beyond the
expiration of any applicable grace period.
3. As long as Tenant is in compliance with the terms of this
Agreement and no default exists under the Lease which has continued
beyond the expiration of any applicable grace period, Mortgagee shall
not name Tenant as a party defendant to any action for foreclosure or
other enforcement thereof (unless required by law), nor shall the
Lease be terminated by mortgagee in connection with, or by reason of,
foreclosure or other proceedings for the enforcement of the Mortgage,
or by reason of a transfer of the landlord's interest under the Lease
pursuant to the taking of a deed in lieu of foreclosure (or similar
device), nor shall Tenant's use or possession of the Demised Premises
be interfered with by Mortgagee, unless the holder of the landlord's
interest under the Lease (the "Landlord") would have had such right
if the Mortgage had not been made, except that the person acquiring,
or succeeding to the interests of the Landlord as a result of any
such action or proceeding, and such person's successors and assigns
(any of the foregoing being hereinafter referred to as the
Successor"), shall not be:
(a) subject to any credits, offsets, defenses or claims
which Tenant might have against any prior landlord; nor
(b) bound by any base rent which Tenant might have paid for
more than the current month to any prior landlord, unless such
prepayment shall have been made with Mortgagee's prior written
consent; nor
(c) liable for any act or omission of any prior landlord;
nor
(d) bound by any covenant to undertake or complete any
improvement to the Demised Premises or the building forming a
part of the Property; nor
(e) be required to account for any security deposit other
than any security deposit actually delivered to the Successor;
nor
(f) liable for any payment to Tenant of any sums, or the
granting to Tenant of any credit, in the nature of a
contribution towards the cost of preparing, furnishing or moving
into-the Demised Premises or any portion thereof.
4. If the interest of the Landlord under the Lease shall be
transferred by reason of foreclosure or other proceedings for
enforcement of the Mortgage or pursuant to a taking of a deed in lieu
of foreclosure (or similar device), Tenant shall be bound to the
Successor, and, except as provided in this Agreement, the Successor
shall be bound to Tenant, under all of the terms, covenants and
conditions of the Lease for the balance of the term thereof
remaining, with the same force and effect as if the Successor were
the Landlord, and Tenant does hereby (i) agree to attorn to the
Successor, including Mortgagee if it be the Successor, as its
landlord, (ii) affirm its obligations under the Lease, and (iii)
agree to make payments of all sums due under the Lease to the
Successor, said attornment, affirmation and agreement to be effective
and self-operative without the execution of any further instruments,
upon the Successor succeeding to the interest to the Landlord under
the Lease. Tenant waives the provisions of any statute or rule of
law now or hereafter in effect that may give or purport to give it
any right or election to terminate or otherwise adversely affect the
Lease or the obligations of Tenant thereunder by reason of any
foreclosure or similar proceeding.
5. This Agreement may not be modified except by an agreement
in writing signed by the parties or their respective successors in
interest. This Agreement shall inure to the benefit of and be
binding upon the parties hereto, their respective heirs,
representatives, successors and assigns.
6. Nothing contained in this Agreement shall in any way impair
or affect the lien created by the Mortgage except as specifically set
forth herein.
7. The Tenant agrees that this Agreement satisfies any condition
or requirement in the Lease relating to the granting of a
non-disturbance agreement by Mortgagee. Tenant further agrees that
in the event there is any inconsistency between the terms and
provisions hereof and the terms and provisions of the Lease dealing
with non-disturbance by Mortgagee, the terms and provisions hereof
shall be controlling.
8. All notices, demands or requests made pursuant
to, under, or by virtue of this Agreement must be in writing
and mailed to the party whom the notice, demand or request is
being made by certified or registered mail, return receipt requested,
at its address set forth above. Any party may change the place that
notices and demands are to be sent by written notice delivered in
accordance with this Agreement.
9. This Agreement shall be governed by the laws of the State
of New Jersey. If any term of this Agreement or the application
thereof to any person or circumstances shall to any extent be invalid
or unenforceable, the remainder of this Agreement or the application
of such term to any person or circumstances other than those as to
which it is invalid or unenforceable shall not be affected thereby,
and each term of this Agreement shall be valid and enforceable to the
fullest extent permitted by law.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have hereunto caused this
Agreement to be duly executed as of the day and year first above
written.
MORTGAGEE
By:________________________________
TENANT
By:_________________________________
[Acknowledgments]
SENIOR ASSIGNMENT AGREEMENT
dated as of December 28, 1993
by
TRUMP'S CASTLE FUNDING, INC.,
a New Jersey corporation, as Assignor
to
FIRST BANK NATIONAL ASSOCIATION,
as Trustee of the Senior Note Indenture, as Assignee
Prepared by_________________________
John A. Ritsher, Esq.
Ropes & Gray
One International Place
Boston, Massachusetts 02110
(617) 951-7000
<PAGE>
SENIOR ASSIGNMENT AGREEMENT
This ASSIGNMENT AGREEMENT (the "Assignment") dated as of
December 28, 1993 from TRUMP'S CASTLE FUNDING, INC., a New Jersey
corporation ("Assignor"), to FIRST BANK NATIONAL ASSOCIATION, a
national banking association, as Trustee under the Indenture, as
defined below ("Assignee") and as successor trustee to First
Fidelity Bank, National Association.
W I T N E S S E T H:
WHEREAS, Assignor, a wholly-owned subsidiary of Trump's
Castle Associates, a New Jersey general partnership (the
"Partnership"), functions as the Partnership's financing vehicle
for advancing to the Partnership the proceeds of various issues
of Assignor's debt securities against receipt of the
Partnership's promissory notes, secured by a mortgage upon the
Partnership's assets; and
WHEREAS, in the hereof, Assignor has issued and sold $27
million principal amount of its 11 1/2% Senior Secured Notes due
2000, pursuant to the provisions of an Indenture of even date
herewith entered into among the Assignor, as issuer, Trump's
Castle Associates (the "Partnership"), as guarantor, and First
Bank National Association, as Trustee, and has loaned said
proceeds to the Partnership, its parent, in exchange for the
Partnership's Senior Partnership Note on the principal amount of
$27 million which is secured by an Indenture of Mortgage and
Security Agreement (the "Senior Note Mortgage") dated of even
date herewith, between the Partnership, as mortgagor, and the
Assignor, as mortgagee; and
WHEREAS, certain terms defined in the Senior Note Indenture
are used herein with the meanings there provided.
NOW, THEREFORE, THIS ASSIGNMENT
FURTHER WITNESSETH:
Assignor, for good and valuable consideration, the receipt
of which is hereby acknowledged, does hereby sell, assign and
transfer unto Assignee and unto its successors and to its assigns
forever, for its benefit and for the benefit of the Holders, and
does hereby grant to Assignee a security interest in and to all
of Assignor's estate, right, title and interest in, to and under
any and all of the following described property, rights and
interests (collectively, the "Assigned Properties"), but
expressly excluding the Subordinated Partnership Note:
(1)
<PAGE>
GRANTING CLAUSE FIRST
All right, title and interest of Assignor in and to the
Senior Partnership Note, including all renewals, extensions and
modifications of the same, and, without limiting the generality
of the foregoing, the present, continuing and future right to
make claim for, collect or cause to be collected, receive or
cause to be received directly from the Partnership thereunder,
all payments of principal, interest and other sums of money
payable thereunder.
GRANTING CLAUSE SECOND
All right, title and interest of Assignor in and to the
Senior Note Mortgage, including all extensions, renewals and
modifications of the same.
TO HAVE AND TO HOLD all of said properties, rights and
interests unto Assignee and its successors and assigns forever.
THIS ASSIGNMENT FURTHER WITNESSETH, that Assignor hereby
agrees and covenants with Assignee as follows:
ARTICLE I
PARTICULAR COVENANTS OF ASSIGNOR
Section 1.01. Performance of Covenants. Assignor
represents, warrants and covenants that it is duly authorized to
enter into this Assignment, and to grant and convey a lien on and
security interest in the Assigned Properties to Assignee in the
manner and to the extent herein set forth and that all action on
its part required for the execution and delivery of this
Assignment has been duly and effectively taken.
Section 1.02. Further Action Required.
(a) Assignor covenants that it will, from time to time,
execute and deliver such further instruments and take such
further actions as may be reasonably required to carry out the
purposes of this Assignment.
(b) Assignor hereby appoints Assignee as its lawful
attorney-in-fact (such power being coupled with an interest) in
the name of Assignor or Assignee or both to execute any
instruments or to take any actions to enforce all rights, powers
and remedies of Assignor under or pursuant to the Assigned
Properties.
(c) Nothing contained herein shall limit the rights of
Assignee contained in the Note Mortgage or the Mortgage Note
Indenture.
(2)
<PAGE>
ARTICLE II
OBLIGATIONS OF ASSIGNEE
Section 2.01. Continuing Obligations.
(a) Assignee shall have no obligation, duty or liability
with respect to the Assigned Properties or any of them (other
than those specifically assumed in its capacity as Trustee
pursuant to the Senior Note Indenture).
(b) Assignor shall at all times remain liable to observe and
perform all of its covenants and obligations, if any, under the
Assigned Properties, and does hereby agree to indemnify and hold
harmless Assignee, its successors and assigns, from any
liability, loss, damage or expense it or they may incur under the
Assigned Properties or by reason of this Assignment.
ARTICLE III
PAYMENTS
Section 3.01. Payments. All Revenues (as hereinafter
defined) due and to become due under or pursuant to the Assigned
Properties shall be paid by the Partnership directly to Assignee
at the address set forth in Section 6.02 hereof.
Section 3.02. Acknowledgment. The Partnership hereby joins
in the execution of this Assignment to acknowledge (i) the
assignment by Assignor to Assignee of Assignor's right, title and
interest in, to and under the Assigned Properties, (ii) the
Partnership's agreement to make payment of all Revenues under the
Assigned Properties directly to Assignee at the address set forth
in this Assignment, and (iii) the right of Assignee to exercise
or enforce in its own name, in the name of Assignor, or both, all
of the rights, powers and remedies of Assignor in, to and under
the Assigned Properties.
Section 3.03. Revenues. As used herein, the term
"Revenues" shall mean (a) all amounts paid or payable by the
Partnership under the Senior Partnership Note, the Senior Note
Indenture, or the Senior Note Mortgage, and (b) the net proceeds
realized upon or as a result of the enforcement of any mortgage
lien or security interest granted under the Assigned Properties
or this Assignment or upon or as a result of the exercise of any
right or remedy under the Assigned Properties or this Assignment.
Section 3.04. Confirmation. Assignor hereby agrees, and
the Partnership hereby acknowledges, that the Partnership may
(3)
<PAGE>
rely exclusively on Assignee's directive that Assignee is
entitled to take action under this Assignment.
ARTICLE IV
DEFAULT PROVISIONS AND REMEDIES
Section 4.01. Enforcements of Remedies.
(a) Upon the occurrence and continuance of any Event of
Default (as such term is defined in the Mortgage Note Indenture;
each an "Event of Default"), Assignee may (upon the direction of
the Holders or, if the rights of the Holders would be prejudiced
by any delay in taking such action, without the direction of the
Holders), at its option, (i) proceed directly to protect and
enforce its rights and the rights of any Holders under this
Assignment or pursuant to the Assigned Properties, or any one of
them, by such suits, actions or special proceedings in equity or
at law, or by proceedings in the office of any board or officer
having jurisdiction, either for the specific performance of any
covenant or agreement contained herein, or in the Assigned
Properties, or any of them, or in aid of execution of any power
granted herein or pursuant to the Assigned Properties, or any one
of them, or for the enforcement of any proper legal or equitable
remedy, including, without limitation, foreclosure of the Senior
Note Mortgage and/or the sale of the collateral or any part
thereof secured thereby at such foreclosure sale, subject to
statutory and other legal requirements, as Assignee shall deem
most effective to protect and enforce such rights, and Assignor
hereby appoints Assignee as its lawful attorney-in-fact (such
power being coupled with an interest) in the name of Assignor or
Assignee or both to effectuate such foreclosure and/or sale of
such collateral or part thereof; or (ii) instruct, direct and
cause Assignor to effectuate the foregoing on behalf of and for
the benefit of Assignee and the Holders, it being further
understood that the Partnership joins in the execution of this
Assignment in order to acknowledge its agreement to promptly and
duly execute and deliver any and all documents and take any and
all actions required by Assignee in order to permit Assignee to
foreclose and/or sell such collateral or part thereof, and obtain
the benefits of this Assignment, as aforesaid.
(b) Upon the occurrence and continuance of any such Event of
Default, Assignee shall (upon the direction of the Holders or, if
the rights of the Holders would be prejudiced by any delay in
taking such action, without the direction of the Holders) be
entitled to sue for, enforce payment of and receive any and all
amounts then and at any time remaining due from Assignor or the
Partnership for principal and interest on the Senior Partnership
Note, or other sums due under the Senior Note Mortgage or the
Senior Note Indenture, as the case may be, or otherwise under any
(4)
<PAGE>
of the provisions of the Assigned Properties, or any of them, in
any of such events with interest on overdue payments of such
principal, as set forth in the Senior Partnership Note, from the
date of such Event of Default to the date of such payment,
together with any and all fees, costs and expenses of collection
(including reasonable attorneys' fees and court costs), subject
to statutory and other legal requirements.
(c) Regardless of the occurrence of an Event of Default,
Assignee may institute and maintain or cause in the name of
Assignor or Assignee or both to be instituted and maintained such
suits and proceedings as Assignee may be advised by its counsel
shall be necessary and appropriate to prevent any impairment of
the Assigned Properties, or any of them, and to protect its
interests in the Assigned Properties, and in the rents, issues,
rights, revenues and other income arising therefrom, including
power to institute and maintain proceedings to restrain the
enforcement or compliance with any governmental enactment, rule
or order that may be unconstitutional or otherwise invalid, if
the enforcement of or compliance with such enactment, rule or
order would impair the security hereunder or would be materially
prejudicial to the interest of the Assignee.
(d) Nothing contained in this Article IV is intended to
grant Assignee any greater remedies and rights than those allowed
to Assignor in the respective Assigned Properties. In the event
or any conflict between the remedies and rights contained in any
of the Assigned Properties and the remedies and rights contained
in this Article IV, the remedies and rights set forth in the
applicable Assigned Property shall govern.
ARTICLE V
DISCHARGE OF ASSIGNMENT
Section 5.01. Discharge of Assignment. If Assignor shall
pay or cause to be paid, or there shall otherwise be paid, to
Assignee and/or the Holders, all amounts required to be paid by
Assignor pursuant to the Senior Note Indenture and the Senior
Notes, and the conditions precedent for the Senior Note Indenture
to cease, determine and become null and void (except for any
surviving rights of transfer or exchange of the Senior Notes and
any right to receive payments of principal and interest as
provided in Article Thirteen or Section 10.3 of the Senior Note
Indenture) in accordance with Article Thirteen of the Senior Note
Indenture, Assignee shall promptly cancel and discharge of record
this Assignment and any financing statements filed in connection
herewith and execute and deliver to Assignor and to the
Partnership all such instruments as may be appropriate to
evidence such discharge and satisfaction of any lien or liens,
and Assignee shall pay over or deliver to Assignor all other
(5)
<PAGE>
moneys and securities held by it pursuant to this Assignment,
which are not required for the payment of (a) principal and
redemption price, if applicable, of and interest on, the Senior
Notes and (b) and all other amounts required to be paid by
Assignor pursuant to the Senior Note Indenture and the Senior
Notes.
ARTICLE VI
MISCELLANEOUS PROVISIONS
Section 6.01. Binding Successors and Assigns. All of the
covenants, stipulations, obligations and agreements contained
in this Assignment shall be binding upon and inure to the benefit
of Assignor, Assignee and the Partnership and their respective
successors and assigns.
Section 6.02. Notices.
Any request, notice, demand, authorization, direction,
request or other instrument authorized or required by this
Assignment to be given to or filed with Assignor, Assignee, or
the Partnership (collectively "Notices") shall be deemed given
when either (i) delivered by hand (including by overnight
courier) or (ii) two days after sending by registered or
certified mail, postage prepaid, addressed as follows:
(i) To Assignee:
First Bank National Association
c/o First Trust National Association
180 East Fifth Street
St. Paul, Minnesota 55010
Attention: Corporate Trust and Agency Group
(ii) To Assignor:
Trump's Castle Funding, Inc.
Trump Castle Casino Resort
Brigantine Boulevard at Huron Avenue
Atlantic City, New Jersey 08401
Attention: Chief Executive Officer
and
(6)
<PAGE>
The Trump Organization, Inc.
725 Fifth Avenue
New York, New York 10022
Attention: Donald J. Trump
(iii) To the Partnership:
Trump's Castle Associates
Trump Castle Casino Resort by the Bay
Brigantine Boulevard at Huron Avenue
Atlantic City, New Jersey 08401
Attention: Chief Executive Officer
and
The Trump Organization, Inc.
725 Fifth Avenue
New York, New York 10022
Attention: Donald J. Trump
and
Willkie Farr & Gallagher
One Citicorp Center
153 East 53rd Street
New York, New York 10022
Attention: Thomas M. Cerabino, Esq.
(b) By Notice to the Partnership, Assignor and or Assignee,
given as provided above, any party may designate additional or
substitute addresses for Notices, which shall, notwithstanding
Subsection (a) above, be deemed given when received.
Section 6.04. Partial Invalidity. In case any one or more
of the provisions of this Assignment shall for any reason be held
to be illegal or invalid, such illegality or invalidity shall not
affect any other provision of this Assignment, but this
Assignment shall be construed and enforced at the time as if such
illegal or invalid provisions had not been contained herein or
therein, nor shall such illegality or invalidity or any
application thereof affect any legal and valid application herein
or thereof from time to time.
Section 6.05. Applicable Law. This Assignment shall be
governed by and construed under the internal laws of the State of
New Jersey, without giving effect to the principles of conflicts
of law.
(7)
<PAGE>
Section 6.06. No Amendments. For so long as the Senior
Notes shall remain outstanding, this Assignment may not be
modified, amended or terminated except in accordance with the
provisions of the Senior Note Indenture or the Assigned
Properties.
Section 6.07. Casino Control Act. Each of the provisions
of this Assignment is subject to and shall be enforced in
compliance with the provisions of the New Jersey Casino Control
Act.
Section 6.08. Limitation on Liability. Notwithstanding
anything herein or any other agreement, document, certificate,
instrument, statement or omission referred to below to the
contrary, the Partnership and the Assignor are liable hereunder
only to the extent of the assets of the Partnership and the
interest of the Assignor in the Assigned Properties which are
secured by the Partnership's assets and no other person or
entity, including, but not limited to, any partner, officer,
representative, committee or committee member of the Partnership
or any partner therein or of any Affiliate (as defined in the
Indenture) of the Partnership or any incorporator, officer,
director or shareholder of the Assignor, of any corporate partner
of the Partnership, or of any corporate Affiliate of the
Partnership, or any Affiliate or controlling person or entity of
any of the foregoing, or any agent, employee or lender of any of
the foregoing or any successor, personal representative, heir or
assign of any of the foregoing, in each case past, present or as
they may exist in the future, shall be liable in any respect
(including without limitation for the breach of any
representation, warranty, covenant, agreement, condition or
indemnification or contribution undertaking contained herein or
therein) under, in connection with, arising out of or relating to
this Assignment, or any other agreement, document, certificate,
instrument or statement (oral or written) related to, executed or
to be executed, delivered or to be delivered, or made or to be
made, or any omission made or to be made, in connection with any
of the foregoing or any of the transactions contemplated in any
such agreement, document, certificate, instrument or statement.
Any agreement, document, certificate, statement or other
instrument to be executed simultaneously with, in connection
with, arising out of or relating to this Assignment or any other
agreement, document, certificate, statement or instrument
referred to above, or any agreement, document, certificate,
statement or instrument contemplated hereby shall contain
language mutatis mutandis to this paragraph and, if such language
is omitted, shall be deemed to contain such language.
6.09. Indemnification. Assignor agrees to indemnify
Assignee for, and to hold it harmless against, any loss,
liability or expense incurred without negligence or bad faith
on its part, arising out of or in connection with the
(8)
<PAGE>
acceptance or administration of this Assignment, including the
costs and expenses of defending itself against any claim, or with
the exercise or performance of any of its powers or duties
hereunder.
IN WITNESS WHEREOF, Assignor, Assignee, and the Partnership
have executed this Assignment as of the date first above written.
TRUMP'S CASTLE FUNDING, INC.
Attest:_____________________ By: _________________________
Secretary Donald J. Trump, President
TRUMP'S CASTLE ASSOCIATES,
a New Jersey general partnership
Attest:_____________________ By: _________________________
Secretary Donald J. Trump,
its Managing Partner
FIRST BANK NATIONAL ASSOCIATION,
as Trustee under the Senior
Note Indenture
Attest:_____________________ By: _________________________
Assistant Secretary Title:
(9)
<PAGE>
<PAGE>
STATE OF NEW YORK ss.:
COUNTY OF NEW YORK
BE IT REMEMBERED, that on December___, 1993, before me, the
subscriber, personally appeared DONALD J. TRUMP, the Managing
Partner of TRUMP'S CASTLE ASSOCIATES, a New Jersey general
partnership, who, I am satisfied, is the person who has signed
the within instrument on behalf of such general partnership, and
I having first made known to him the contents thereof he
thereupon acknowledged that he signed and delivered the said
instrument in his capacity as such Managing Partner aforesaid,
and that the within instrument is the voluntary act and deed of
said general partnership.
______________________________
Notary Public
(10)
<PAGE>
<PAGE>
STATE OF NEW YORK ss.:
COUNTY OF NEW YORK
BE IT REMEMBERED, that on December____, 1993, before me, the
subscriber, personally appeared DONALD J. TRUMP, the President of
TRUMP'S CASTLE FUNDING, INC., the corporation named in the within
document, who, I am satisfied, is the person who has signed the
within instrument; and I having first made known to him the
contents thereof he acknowledged that he signed, sealed with the
corporate seal and delivered the said instrument as such officer
aforesaid; that the within instrument is the voluntary act and
deed of the corporation, made by virtue of authority from its
Board of Directors.
______________________________
Notary Public
(11)
<PAGE>
<PAGE>
STATE OF NEW YORK ss.:
COUNTY OF NEW YORK
BE IT REMEMBERED, that on _______, 1993, before me, the
subscriber, personally appeared Frank P. Leslie, an Assistant
Vice President of FIRST BANK NATIONAL ASSOCIATION, the
corporation named in the within document, who, I am satisfied, is
the person who has signed the within instrument; and I having
first made known to him the contents thereof he acknowledged that
he signed, sealed with the corporate seal and delivered the said
instrument as such officer aforesaid; that the within instrument
is the voluntary act and deed of the corporation, made by virtue
of authority from its Board of Directors.
_________________________
Notary Public
(12)
<PAGE>
STATE OF NEW YORK ss.:
COUNTY OF NEW YORK
On the 21st day of December, ___, 1993, before me personally
came Donald J. Trump, to me known, who, being by me duly sworn,
did depose and say that he resides at 721 Fifth Avenue, New York,
New York; that he is Managing General Partner and the Chairman of
the Board of Partner Representatives of Trump's Castle
Associates, the partnership Representatives of Trump's Castle
Associates, the partnership described in and which executed the
above instrument; and he acknowledged that he signed and
delivered the same on behalf of such partnership as his voluntary
act and deed and as the voluntary act and deed of such
partnership, pursuant to authority of the board of directors of
said partnership, and that he received a true copy of the within
instrument on behalf of said general partnership.
______________________________
Notary Public
(13)
<PAGE>
Exhibit D to
Senior Note Indenture
INDENTURE OF MORTGAGE AND SECURITY AGREEMENT
(Senior Guarantee Mortgage)
TRUMP'S CASTLE ASSOCIATES,
Mortgagor/Debtor
and
FIRST BANK NATIONAL ASSOCIATION,
as Trustee under the Senior Note Indenture, Mortgagee/Secured
Party
Dated as of December 28, 1993
Record and Return to:
Robert L. Nutt, Esq.
Ropes & Gray
One International Place
Boston, Massachusetts 02110-2624
<PAGE>
<PAGE>
TABLE OF CONTENTS
ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF
GENERAL APPLICATION. . . . . . . . . . . . . . . . . . . . . . 8
Section 1.1. Definitions. . . . . . . . . . . . . . . . 9
Section 1.2. Notices. . . . . . . . . . . . . . . . . . 18
Section 1.3. Form and Contents of
Documents Delivered to Mortgagee. . . . . . . . 19
Section 1.4. Compliance Certificates and Opinions.. . . 20
Section 1.5. Effect of Headings and Table of
Contents.. . . . . . . . . . . . . . . . . . . . . . 21
Section 1.6. Successors and Assigns; Amendments.. . . . 21
Section 1.7. Separability Clause. . . . . . . . . . . . 21
Section 1.8. Benefits of Mortgage.. . . . . . . . . . . 21
Section 1.9. Governing Law. . . . . . . . . . . . . . . 22
Section 1.10. Limitation on Liability. . . . . . . . . . 22
Section 1.11. Provisions Required by Senior Note
Indenture. . . . . . . . . . . . . . . . . . . . . . 22
Section 1.12. Rights of Trustee as Mortgagee.. . . . . . 23
Section 1.13. Mortgage Subject to Casino Control Act.. . 24
Section 1.14. Discharge of Lien. . . . . . . . . . . . . 24
Section 1.15. General Application. . . . . . . . . . . . 25
Section 1.16. Senior Guarantee Mortgage Deemed to be
Security Agreement.. . . . . . . . . . . . . . . . . 25
Section 1.17. No Duplication of Notices or Payments. . . 25
ARTICLE TWO RELEASE; SUBORDINATION . . . . . . . . . . . . . . 26
Section 2.1. Possession by Mortgagor. . . . . . . . . . 26
Section 2.2. Obsolete Property. . . . . . . . . . . . . 26
Section 2.3. F,F&E Financing Agreements.. . . . . . . . 27
ARTICLE THREE REMEDIES . . . . . . . . . . . . . . . . . . . . 28
Section 3.1. Events of Default. . . . . . . . . . . . . 28
Section 3.2. [Intentionally Omitted] . . . . . . . . . 30
Section 3.3. Application of Moneys Received by
Mortgagee. . . . . . . . . . . . . . . . . . . . . . 30
Section 3.4. Restoration of Rights and Remedies.. . . . 30
Section 3.5. Rights and Remedies Cumulative.. . . . . . 30
Section 3.6. Delay or Omission Not Waiver.. . . . . . . 30
Section 3.7. Undertaking for Costs. . . . . . . . . . . 30
Section 3.8. Waiver of Appraisement and Other Laws. . . 31
Section 3.9. Entry. . . . . . . . . . . . . . . . . . . 31
Section 3.10. Power of Sale; Suits for Enforcement.. . . 32
Section 3.11. Incidents of Sale. . . . . . . . . . . . . 32
Section 3.12. Receiver.. . . . . . . . . . . . . . . . . 33
Section 3.13. Suits to Protect the Trust Estate. . . . . 34
Section 3.14. Management of the Premises.. . . . . . . . 34
(i)
<PAGE>
ARTICLE FOUR CONSOLIDATION, MERGER, CONVEYANCE,
TRANSFER OR LEASE. . . . . . . . . . . . . . . . . . . . . . . 35
Section 4.1. Consolidation, Merger, Conveyance
or Transfer only on Certain Terms.. . . . . . . 35
Section 4.2. Successor Entity Substituted.. . . . . . . 35
ARTICLE FIVE COVENANTS AND REPRESENTATIONS OF MORTGAGOR. . . . 35
Section 5.1. Performance of Senior Note Guarantee
Obligations. . . . . . . . . . . . . . . . . . . . . 35
Section 5.2. F,F&E Financing Agreements.. . . . . . . . 35
Section 5.3. Limitations on Liens and Transfers.. . . . 35
Section 5.4. Environmental. . . . . . . . . . . . . . . 37
Section 5.5. Warranty of Leasehold Estate and Title . . 40
Section 5.6. After-Acquired Property;
Further Assurances; Recording.. . . . . . . . . 42
Section 5.7. Payment of Taxes and Certain Claims;
Maintenance of Properties; Compliance with
Legal Requirements and Insurance Requirements.. 43
Section 5.8. Permitted Contests . . . . . . . . . . . . 45
Section 5.9. Mechanics' and Other Liens.. . . . . . . . 46
Section 5.10. To Insure. . . . . . . . . . . . . . . . . 46
Section 5.11. Limitations on Building Demolition,
Alterations, Improvements and New Construction. 54
Section 5.12. Leases.. . . . . . . . . . . . . . . . . . 56
Section 5.13. Compliance Certificates. . . . . . . . . . 58
Section 5.14. To Keep Books; Inspection by Mortgagee . . 58
Section 5.15. Advances by Mortgagee. . . . . . . . . . . 59
Section 5.16. Waiver of Stay, Extension or Usury
Laws.. . . . . . . . . . . . . . . . . . . . . . . . 59
Section 5.17. Eminent Domain.. . . . . . . . . . . . . . 59
Section 5.18. Facility Leases. . . . . . . . . . . . . . 61
Section 5.19. Superior Mortgage. . . . . . . . . . . . . 66
Section 5.20. Indemnification. . . . . . . . . . . . . . 68
SCHEDULE 1 OWNED LAND. . . . . . . . . . . . . . . . . . . . 1-1
SCHEDULE 2 LEASED LAND . . . . . . . . . . . . . . . . . . . 2-1
SCHEDULE 3 EXISTING ENCUMBRANCES . . . . . . . . . . . . . . 3-1
SCHEDULE 4 FORM OF NON-DISTURBANCE AND ATTORNMENT AGREEMENT. 4-1
(ii)
<PAGE>
<PAGE>
INDENTURE OF MORTGAGE AND SECURITY AGREEMENT
INDENTURE OF MORTGAGE AND SECURITY AGREEMENT ("Mortgage" or
"Senior Guarantee Mortgage"), dated as of December 28 , 1993,
between TRUMP'S CASTLE ASSOCIATES, a New Jersey general
partnership having an office at Brigantine Boulevard and Huron
Avenue, Atlantic City, New Jersey 08401 ("Mortgagor"), and FIRST
BANK NATIONAL ASSOCIATION, a national banking association, not
individually but in its capacity as Trustee under the Trust
Indenture (as hereinafter defined), having an office at 180 East
Fifth Street, St. Paul, Minnesota 55101 ("Mortgagee").
Witnesseth:
In consideration of $10.00 in hand paid by Mortgagee to
Mortgagor and for other good and valuable consideration, the
receipt and sufficiency whereof is hereby acknowledged, and in
order to secure (i) the punctual payment and performance when due
of all of Mortgagor's obligations under the Senior Note
Guarantee; (ii) the punctual payment and performance when due of
all the Company's and Mortgagor's obligations under the Senior
Notes and the Senior Note Indenture; (iii) payment by Mortgagor
to Mortgagee of all sums expended or advanced by Mortgagee
pursuant to any term or provision of this Senior Guarantee
Mortgage; (iv) performance of each covenant, term, condition and
agreement of Mortgagor herein contained; (v) all costs and
expenses, including, without limitation, reasonable counsel fees
and expenses as provided in Section 3.7 of this Senior Guarantee
Mortgage, which may arise in respect of this Senior Guarantee
Mortgage or of the obligations secured hereby; and (vi)
performance and observance of all of the provisions herein
contained, Mortgagor has executed and delivered this Senior
Guarantee Mortgage and has bargained, sold, aliened, mortgaged,
pledged, released, conveyed and confirmed unto Mortgagee and its
successors hereunder and assigns forever, and does hereby grant
to Mortgagee and its successors a security interest in and to,
all of Mortgagor's right, title and interest in, to and under all
of the following described property and the proceeds thereof:
GRANTING CLAUSES
Granting Clause First
All of the property, rights, title, interest, privileges and
franchises particularly described in annexed Schedule 1 (the
"Owned Land"), which Schedule is hereby made a part of, and
deemed to be described in, this Granting Clause as fully as if
set forth in this Granting Clause at length.
(1)
<PAGE>
Granting Clause Second
[Intentionally omitted]
Granting Clause Third
All of the property, rights, title, interest, privileges and
franchises of Mortgagor as lessee under all Facility Leases
(including, to the extent permissible to the Landlord under the
Marina Lease, the Marina Lease), together with (i) all credits,
deposits, privileges and rights of Mortgagor as lessee under the
Facility Leases, now or at any time existing, (ii) the leaseholds
and the leasehold estates created by the Facility Leases and
(iii) all of the estates, rights, titles, claims or demands
whatsoever of Mortgagor, either in law or in equity, in
possession or in expectancy, of, in and to the Facility Leases
and the Leased Facilities (including, but not limited to, the
Leased Land particularly described in annexed Schedule 2),
together with (x) any and all other, further or additional title,
estates, interests or rights which may at any time be acquired by
Mortgagor in or to the Leased Facilities or any part thereof, and
Mortgagor expressly agrees that if Mortgagor shall, at any time
prior to payment in full of all indebtedness secured hereby,
acquire fee simple title or any other greater estate to the
Leased Facilities, the lien of this Senior Guarantee Mortgage
shall attach, extend to, cover and be a lien upon such fee simple
title or other greater estate and thereupon the lien of this
Senior Guarantee Mortgage, subject to Permitted Encumbrances,
shall be prior to the lien of any mortgage or deed of trust
placed on such acquired title, estate, interest or right
subsequent to the date of this Senior Guarantee Mortgage and (y)
any right to possession or statutory term of years derived from,
or incident to, the Facility Leases pursuant to Section 365(h) of
the Code or any Comparable Provision.
Granting Clause Fourth
All of the rents, issues, profits, revenues, accounts,
accounts receivable and other income and proceeds (including,
without limitation, all rents, fees, charges, accounts, issues,
profits, revenues and payments for or from (a) the use or
occupancy of the rooms and other public facilities in the Hotel<PAGE>
(2)
<PAGE>
and (b) the operation of the Casino) of the property subjected or
required to be subjected to the lien of this Senior Guarantee
Mortgage, including, without limitation, the property described
in Granting Clauses First, Third and Seventh (said property
described in Granting Clauses First, Third and Seventh and
similar other property subjected or required to be subjected to
the lien of this Senior Guarantee Mortgage, together with all
such rents, issues, profits, revenues, accounts, accounts
receivable and other income and proceeds therefrom is hereinafter
collectively referred to as the "Premises") and all of the
estate, right, title and interest of every nature whatsoever of
Mortgagor in and to the same and every part thereof.
Granting Clause Fifth
All of the rights of Mortgagor as lessor under the Leases in
effect on the date of execution of this Senior Guarantee Mortgage
or hereafter entered into by Mortgagor, including modifications,
extensions and renewals of all of the same, and the immediate and
continuing right as security after the occurrence, and during the
continuance, of an Event of Default, to (a) make claim for,
collect, receive and receipt for (and to apply the same as
provided herein) any and all rents, fees, charges, income,
revenues, issues, profits, security and other sums of money
payable or receivable thereunder or pursuant thereto, and all
proceeds thereof, whether payable as rent, insurance proceeds,
condemnation awards, security or otherwise and whether payable
prior to or subsequent to the Stated Maturity of the Senior
Partnership Note, (b) receive and give notices and consents
thereunder, (c) bring actions and proceedings thereunder or for
the enforcement thereof, (d) make waivers and agreements
thereunder or with respect thereto, (e) take such action upon the
happening of a default under any Lease, including the
commencement, conduct and consummation of any proceedings at law
or in equity as shall be permitted by any provision of any Lease,
and (f) do any and all things which Mortgagor or any lessor is or
may become entitled to do under the Leases; provided that, except
as may be set forth to the contrary herein, the assignment made
by this Granting Clause Fourth shall not impair or diminish any
right, privilege or obligation of Mortgagor under the Leases nor
shall any such obligation be imposed upon Mortgagee.
Granting Clause Sixth
Without limiting the generality of the provisions of
Granting Clause Fourth, all of Mortgagor's rights, title,
interest, privileges and franchises in and to the following, now
owned or hereafter acquired by Mortgagor, to the extent of
Mortgagor's interest therein and thereto and to the extent
assignable (collectively, "Operating Assets"):
(3)
<PAGE>
(a) bookings for the use of guest rooms, banquet
facilities, meeting rooms at the Casino Hotel or at any other
improvements now or hereafter located on any of the Land;
(b) all contracts respecting utility services for, and the
maintenance, operations, or equipping of, the Premises, including
guaranties and warranties relating thereto;
(c) the Permits;
(d) all contract rights, leases (whether with respect to
real property, personal property or both real and personal
property), concessions, trademarks, trade names, service marks,
logos, copyrights, warranties and other items of intangible
personal property, and any and all good will associated with the
same, relating to the ownership or operation of the Casino Hotel
or of any other improvements now or hereafter located on any of
the Land, including, without limitation, (1) employment contracts
with officers and other employees of Mortgagee, (2) telephone and
other communication numbers, (3) all software licensing
agreements as are required to operate computer software systems
at the Casino Hotel or at any other improvements now or hereafter
located on any of the Land and books and records relating to the
software programs and (4) lessee's interest under leases of
Tangible Personal Property;
(e) all contracts, purchase orders, requisitions and
agreements entered into by or on behalf of Mortgagor or which
have been assigned to Mortgagor, for the design, construction,
and furnishing of the Casino Hotel or of any other improvements
now or hereafter located on any of the Land, including, without
limitation, architect's agreements, engineering agreements,
construction contracts, consulting agreements and agreements or
purchase orders for all items of Tangible Personal Property and
payment and performance bonds in favor of Mortgagor in connection
with the Trust Estate (and all warranties and guarantees
thereunder and warranties and guarantees of any subcontractor and
bond issued in connection with the work to be performed by any
subcontractor);
(f) the following personal property (the "Tangible Personal
Property") now or hereafter acquired by Mortgagor (directly or by
way of lease) which is located on, or to be located on, or which
are in use or held in reserve storage for future use in
connection with the gaming or other operations of, the Casino
Hotel or of any other improvements now or hereafter located on
any of the Land, which is on hand or on order whether stored
on-site or off-site:
(i) all furniture, furnishings, equipment, machinery,
lighting, apparatus (both interior and exterior),
(4)
<PAGE>
appliances, fixtures and fittings and other articles of tangible
personal property;
(ii) all slot machines, electronic gaming devices,
crap tables, blackjack tables, poker tables, roulette
tables, baccarat tables, big six wheels and other gaming
tables, and all furnishings and equipment to be used in
connection with the operation thereof;
(iii) all cards, dice, gaming chips and plaques,
tokens, chip racks, dealing shoes, dice cups, dice sticks,
layouts, paddles, roulette balls and other consumable
supplies and items;
(iv) all china, glassware, linens, kitchen utensils,
silverware and uniforms;
(v) all consumable and operating supplies of every
kind and nature, including, without limitation, accounting
supplies, guest supplies, forms, printing, stationery, food
and beverage stock, bar supplies, laundry supplies and
brochures to existing purchase orders;
(vi) all upholstery material, carpets and rugs, beds,
bureaus, chiffonniers, chairs, chests, desks, bookcases,
tables, curtains, hangings, pictures, divans, couches,
ornaments, bars, bar fixtures, safes, stoves, ranges,
refrigerators, radios, televisions, clocks; electrical
equipment, lamps, mirrors, heating and lighting fixtures and
equipment, ice machines, air conditioning machines, fire
prevention and extinguishing apparatus, laundry machines,
and all similar and related articles used in bedrooms,
sitting rooms, bathrooms, boudoirs, halls, closets,
kitchens, dining rooms, offices, lobbies, basements and
cellars in the Casino Hotel and in any other improvements
now or hereafter located on any of the Land;
(vii) all sets and scenery, costumes, props and other
items of tangible personal property on hand or on order for
use in the production of shows in any showroom, convention
space, exhibition hall, or sports and entertainment arena of
the Casino Hotel or in any other improvements now or
hereafter located on any of the Land; and
(viii) all cars, limousines, vans, buses, trucks and
other vehicles owned or leased by Mortgagor for use in
connection with the operation of the Premises, together with
all equipment, parts and supplies used to service, repair,
maintain and equip the foregoing;
(g) all drawings, designs, plans and specifications
prepared by architects, engineers, interior designers, landscape
(5)
<PAGE>
designers and any other professionals or consultants for the
design, development, construction and/or improvement of the
Casino Hotel, or for any other development of the Premises, as
amended from time to time;
(h) any administrative and judicial proceedings initiated
by Mortgagor, or in which Mortgagor has intervened, concerning
the Premises, and agreements, if any, which are the subject
matter of such proceedings;
(i) any customer lists utilized by Mortgagor including
lists of transient guests and restaurant and bar patrons and
"high roller" lists; and
(j) all of the good will in connection with the assets
listed in this Granting Clause Sixth and in connection with the
operation of the Premises.
Except as may be set forth to the contrary herein, the
assignment made by this Granting Clause Sixth shall not impair or
diminish any right, privilege or obligation of Mortgagor with
respect to the Operating Assets, nor shall any such obligation be
imposed on Mortgagee.
Granting Clause Seventh
(a) All of Mortgagor's rights, title, interest, privileges
and franchises, if any, in and to all buildings, structures
(surface and subsurface), and other improvements of every kind
and description, including, without limitation, all pedestrian
bridges, entrance-ways, parking lots, plazas, curb-cuts,
walkways, driveways and landscaping and such fixtures as
constitute real property, now or hereafter erected or placed on
the Land or on any other land or any interest therein hereafter
acquired by Mortgagor and all of Mortgagor's rights, title,
interest, privileges and franchises in and to all fixtures and
articles of personal property now or hereafter attached to or
contained in and used in connection with such buildings and
improvements, including, without limitation, all apparatus,
furniture, furnishings, lighting equipment, electronic
billboards, machinery, motors, elevators, fittings, radiators,
cooking ranges, ice boxes, ice machines, printing presses,
mirrors, bars, mechanical refrigerators, furnaces, coal and oil
burning apparatus, wall cabinets, machinery, generators,
partitions, steam and hot water boilers, lighting and power
plants, pipes, plumbing, radiators, sinks, bath tubs, water
closets, gas and electrical fixtures, awnings, shades, screens,
blinds, dishwashers, freezers, vacuum cleaning systems, office
equipment and other furnishings, and all plumbing, heating,
lighting, cooking, laundry, ventilating, incinerating,
air-conditioning and sprinkler equipment or other fire prevention
(6)
<PAGE>
or extinguishing apparatus and material, and fixtures and
appurtenances thereto; and all renewals or replacements thereof
or articles in substitution therefor, whether or not the same are
or shall be attached to the Land, any other land or any interest
therein hereafter acquired by Mortgagor or to any such buildings
and improvements thereon, in any manner.
(b) All of Mortgagor's rights, title, interest, privileges
and franchises in and to all other property, real, personal or
mixed (other than Excepted Property), of every kind and
description and wheresoever situate, now owned or which may be
hereafter acquired by Mortgagor, it being the intention hereof
that all property, interests, rights, privileges and franchises
now owned by Mortgagor or acquired by Mortgagor after the date
hereof (other than Excepted Property) shall be as fully embraced
within and subjected to the lien hereof as if such property were
specifically described herein.
* * *
TOGETHER with all of Mortgagor's right, title and interest
in and to any and all mineral and water rights and any title or
reversion, in and to the beds of the ways, streets, avenues and
alleys adjoining the Premises to the center line thereof and in
and to all strips, gaps and gores adjoining the Premises on all
sides thereof; and
TOGETHER with any and all of Mortgagor's right, title and
interest in and to the tenements, hereditaments, easements,
appurtenances, passages, waters, water courses, riparian rights,
other rights, liberties and privileges thereof or in any way now
or hereafter appertaining to the Premises, including, without
limitation, any other claim at law or in equity as well as any
after-acquired title, franchise or license and the reversion and
reversions and remainder and remainders thereof; and
TOGETHER with any and all awards and other compensation
heretofore or hereafter to be made to the present and all
subsequent owners of the Trust Estate for any taking by eminent
domain, either permanent or temporary, of all or any part of the
Trust Estate or any easement or appurtenances thereof, including
severance and consequential damage and change in grade of
streets, all in accordance with and subject to the provisions of
the Superior Instrument Requirements and Section 5.17; and
TOGETHER with any and all proceeds of any unearned premiums
on any insurance policies described in Sections 5.10, and the
right to receive and apply the proceeds of any insurance,
judgments, or settlements made in lieu thereof, for damage to the
Trust Estate or otherwise, all in accordance with and subject to
the provisions of Section 5.10 and the Superior Instrument
Requirements; and
(7)
<PAGE>
TOGETHER with all proceeds of every kind and nature, and all
products of every kind and nature, of any of the foregoing
property, rights, title, interests, privileges, franchises and
other assets described in Granting Clauses First through Seventh
or in any of the other clauses thereafter.
The foregoing shall include, whether or not specifically
identified in one or more instances, all such property, rights,
title, interests, privileges, franchises and other assets now
owned and/or hereafter existing.
EXCLUDING, with respect to all of the hereinabove granted
property, rights, title, interest, privileges and franchises
described in Granting Clauses First through Seventh or in the six
immediately preceding paragraphs, all Excepted Property now or
hereafter existing.
TO HAVE AND TO HOLD all of said Premises, Leases, Facility
Leases, Operating Assets, properties, options, credits, deposits,
rights, privileges and franchises of every kind and description,
real, personal or mixed, hereby and hereafter granted, bargained,
sold, aliened, assigned, transferred, hypothecated, pledged,
released, conveyed, mortgaged, or confirmed as aforesaid, or
intended, agreed or covenanted so to be, together with all the
appurtenances thereto appertaining (said Premises, Leases,
Facility Leases, Operating Assets, properties, options, credits,
deposits, rights, privileges and franchises, other than Excepted
Property now or hereafter existing, being herein collectively
called the "Trust Estate") unto Mortgagee and its successors and
assigns forever.
SUBJECT, HOWEVER, on the date hereof, to Existing
Encumbrances (including the Superior Mortgage) and, after the
date hereof, to Permitted Encumbrances (other than Restricted
Encumbrances).
PROVIDED, HOWEVER, that the lien of this Senior Guarantee
Mortgage upon the Trust Estate shall rank pari passu with the
lien of the Senior Note Mortgage.
BUT IN TRUST, NEVERTHELESS, for the ratable benefit and
security of the Holders.
UPON CONDITION that, until the happening of an Event of
Default, Mortgagor shall be permitted to possess and use the
Trust Estate, and to receive and use the rents, issues, profits,
revenues and other income of the Trust Estate.
AND IT IS HEREBY COVENANTED AND DECLARED that the Trust
Estate is to be held and applied by Mortgagee, subject to the
further covenants, conditions and trusts hereinafter set forth,
(8)
<PAGE>
and Mortgagor does hereby covenant and agree to and with
Mortgagee, for the ratable benefit of the Holders, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF
GENERAL APPLICATION
Section 1.1. Definitions.
For all purposes of this Senior Guarantee Mortgage, except
as otherwise expressly provided or unless the context otherwise
requires:
(a) the terms defined in this Article One have the meanings
assigned to them in this Article One and include the plural as
well as the singular;
(b) all accounting terms not otherwise defined herein have
the meanings assigned to them, and all computations herein
provided for shall be made, in accordance with generally accepted
accounting principles in effect on the date hereof consistently
applied; and
(c) the words "herein," "hereof" and "hereunder" and other
words of similar import refer to this Senior Guarantee Mortgage
as a whole and not to any particular Article, Section or other
subdivision.
"Affiliate" has the meaning set forth in Section 1.1 of the
Senior Note Indenture.
"Alterations" has the meaning set forth in Section 5.11.
"Appraised Value" means the fair market value of the Casino
Hotel, and of all other property now or hereafter owned or leased
by Mortgagor and subject to the lien of this Senior Guarantee
Mortgage, as determined by an Independent Appraiser on the basis
of an appraisal in conformity with the criteria set forth at 12
C.F.R. ss 564.4 or such similar published policy or regulation as
from time to time governs real estate related transactions by
institutions regulated by the Office of Thrift Supervision;
provided, that the value of the Casino Hotel and such other
property shall not include the value of (i) any furniture,
fixtures and equipment therein to the extent of the Outstanding
Amount of any Indebtedness secured by any F,F&E Financing
Agreements with respect thereto and (ii) any Excepted Property.
"Appraiser" means a "state certified appraiser" as defined
in 12 C.F.R. ss 564.2(i) who is (i) of recognized standing among
appraisers of properties similar to the Casino Hotel and (ii)
(9)
<PAGE>
experienced in the appraisals of properties of a similar size and
scope to that of the Casino Hotel, selected by Mortgagor.
"Architect" means an Independent Person selected by
Mortgagor and licensed as an architect in the State of New
Jersey.
"Casino" means that portion of the Casino Hotel used for
gaming and related activities.
"Casino Hotel" means the casino and hotel complex currently
known as the "Trump's Casino Castle Resort" in Atlantic City, New
Jersey, and ancillary structures and facilities located on the
Premises (other than the property covered by the Marina Lease)
and all furniture, fixtures and equipment at any time contained
therein in each case owned by or leased to Mortgagor and covered
by the lien of the Senior Note Mortgage.
"Casualty" means any act or occurrence of any kind or nature
which results in damage, loss or destruction to any buildings or
improvements on the Premises and/or Tangible Personal Property.
"Certificate of Appraised Value" means the certificate of an
Independent Appraiser stating the Appraised Value.
"Code" means the Federal Bankruptcy Code, Title 11 of the
United States Code, as amended.
"Company" means Trump's Castle Funding, Inc., a corporation
incorporated under the laws of the State of New Jersey, or any
other obligor on the Senior Notes (other than Mortgagor).
"Comparable Provision" has the meaning set forth in
Section 5.18.
"Default" means any event which is, or after notice or lapse
of time or both would be, an Event of Default. Without limiting
the generality of the previous provisions of this definition, the
term "Default" shall include the occurrence of an event as to
which a notice of default has been given to Mortgagor under any
Facility Lease by a Lessor or under the Superior Mortgage by the
holder thereof, which has not yet been cured.
"Depositary" means an Independent entity to which insurance
proceeds or condemnation awards are paid to be held in trust for
Restoration pursuant to the provisions of a Superior Mortgage.
"Event of Default" has the meaning set forth in Section 3.1.
"Excepted Property" means:
(10)
<PAGE>
(1) the personal property owned by lessees under Leases and
the personal property of any Hotel guests;
(2) trade names, intellectual property rights and other
rights and interests in and to the use of the terms "Trump's
Castle," "Trump," "Trump's Castle Casino Resort", "Donald J.
Trump," "Donald Trump" or related variations thereof; and
(3) any property deemed to be Excepted Property pursuant to
the provisions of Section 2.3;
(4) counterchecks, cash and any other property to the
extent that the granting of a security interest therein is
prohibited by the New Jersey Casino Control Act and the
regulations promulgated thereunder; and
(5) any property acquired pursuant to secured purchase -
money indebtedness permitted under clause "i" of the definition
of "Permitted Indebtedness" in the Senior Note Indenture.
"Existing Encumbrances" means the matters set forth in
Schedule 3 hereto, including, but not limited to, the instruments
securing, evidencing or governing the Midlantic Term Loan.
"Facility Leases" means, collectively:
(1) the Marina Lease;
(2) Any leases other than Capital Lease Obligations and the
Marina Leqase where the Mortgagor is tenant or sub-tenant;
provided, however, that the aggregate fixed rental payments paid
or accrued for any period of four consecutive fiscal quarters
commencing after the date hereof under all such leases (including
payments required to be made by the lessee in respect of taxes
and insurance, whether or not denomianted as rent), shall not
exceed for such period (a) $2,000,000 or (b) $7,500,000 following
the time at which the Partnership shall have achieved EBITDA for
any period of four consecutive quarters in an amount not less
than $45.0 million; provided, further, that the Mortgagor may
designate certain such leases which are not material to the
operations of the Casino Hotel and which have aggregate fixed
rental payments (including payments required to be made by the
lessee in respect of taxes and insurance, whether or not
denominated as rent) not exceeding an aggregate of $300,000 per
year to be excluded from the leases covered by this clause (2);
and
(3) any and all modifications, extensions and renewals of
the leases described in clauses (1) and (2) above, to the extent
the same are permitted under Section 5.12.
(11)
<PAGE>
"F,F&E Financing Agreement" has the meaning set forth in
Section 1.1 of the Senior Note Indenture.
"Full Insurable Value" means the actual replacement cost
(excluding the costs of foundation, footing, excavation, paving,
landscaping and other similar, noninsurable improvements) of the
insurable properties in question.
"Holder" has the meaning set forth in Section 1.1 of the
Senior Note Indenture.
"Hotel" means that portion of the Casino Hotel not included
within the Casino.
"Impositions" has the meaning set forth in Section 5.7.
"Indebtedness" has the meaning set forth in Section 1.1 of
the Senior Note Indenture.
"Independent" when used with respect to any specified Person
means such a Person who (i) is in fact independent, (ii) does not
have any direct financial interest or any material indirect
financial interest in Mortgagor or in any other obligor upon the
Senior Partnership Note or in any Affiliate of Mortgagor or of
such other obligor and (iii) is not connected with Mortgagor or
such other obligor or any Affiliate of Mortgagor or such other
obligor as an officer, employee,, promoter, underwriter, trustee,
partner, director or person performing similar functions.
Whenever it is herein provided that any Independent Person's
opinion or certificate shall be furnished to Mortgagee, such
Person shall be appointed by a Mortgagor order and such opinion
or certificate shall state that the signer has read this
definition and that the signer is Independent within the meaning
thereof. A Person who is performing or who has performed
services as an independent contractor to any specified Person
shall not be considered not Independent merely by reason of the
fact that such Person is performing or has performed such
services.
"Insurance Amount" has the meaning set forth in Section
5.10(a)(i).
"Insurance Requirements" means all terms of any insurance
policy covering or applicable to the Trust Estate or any part
thereof, all requirements of the issuer of any such policy, and
all orders, rules, regulations and other requirements of the
National Board of Fire Underwriters (or any other body exercising
similar functions) applicable to or affecting the Trust Estate or
any part thereof or any use or condition of the Trust Estate or
any part thereof.
(12)
"Insurance Trustee" means the Trustee or, if the Trustee so
elects, any bank, trust company or insurance company with a net
worth in excess of $100,000,000, designated by the Trustee.
"Insurer" means (i) an insurance company or companies
selected by Mortgagor authorized to issue insurance in the State
of New Jersey with an A.M. Best rating level of A minus or better
and an A.M. Best financial size category of VIII or better or
(ii) Lloyds of London so long as its financial capacity is not
such that prudent owners of first-class casino and hotel
complexes in Atlantic City, New Jersey would be unwilling to
accept Lloyds of London; provided, that with respect to the
insurance required to be maintained pursuant to Section
5.10(a)(i), up to 1.0% of the total amount of such insurance in
excess of the first $10,000,000 thereof may be maintained with an
insurance company or companies not meeting the foregoing A.M.
Best rating level and/or A.M. Best financial size categories; and
provided, further, that Mortgagor shall in all events use
commercially reasonable efforts to obtain insurance issued by
insurance companies having an A.M. Best rating level of better
than A minus.
"Land" means, collectively, the Owned Land and the Leased
Land.
"Lease" means each lease or sublease (made by Mortgagor, as
lessor or sublessor, as the case may be) of any space in any
building or buildings, an interest in which building or buildings
constitutes a part of the Trust Estate, including every agreement
relating thereto or entered into in connection therewith and
every guarantee of the performance and observance of the
covenants, conditions and agreements to be performed by the
lessee or sublessee under any such lease or sublease. For
purposes hereof, the term "Lease" shall include any license
agreement, concession agreement or other occupancy agreement.
Notwithstanding the foregoing, the term "Lease" shall not include
any transient room rentals.
"Leased Facilities" means, collectively, the Leased Land and
any buildings and improvements now or hereafter located thereon.
"Leased Land" means, collectively, the Marina Lease and any
other land that is now or hereafter subject to a Facility Lease.
"Legal Requirements" means all laws, statutes, codes, acts,
ordinances, orders, judgments, decrees, injunctions, rules,
regulations, permits, licenses, authorizations, directions and
requirements (including, without limitation, the New Jersey
Casino Control Act, the New Jersey Environment Cleanup
Responsibility Act and the New Jersey Spill Compensation and
Control Act of 1976) of all governments, departments,
commissions, boards, courts, authorities, agencies, officials and
(13)
<PAGE>
officers, of governments, federal, state and municipal
(including, without limitation, the New Jersey Department of
Environmental Protection and Energy, the Atlantic City Bureau of
Investigations, the Division of Gaming Enforcement of the State
of New Jersey, and the Casino Control Commission of the State of
New Jersey), foreseen or unforeseen, ordinary or extraordinary,
which now are or at any time hereafter become applicable to the
Trust Estate or any part thereof, or any of the adjoining
sidewalks, or any use or condition of the Trust Estate or any
part thereof, including, without limitation, the use of the
Casino Hotel as a gaming or gambling facility.
"Lessors" means the lessors under the Facility Leases.
"Marina Lease" means the lease agreement made September 1,
1990 between the State of New Jersey, as Landlord, and Mortgagor,
as tenant, respecting property known as the Senator Frank S.
Farley State Marina, Atlantic City, New Jersey, being designated
as a portion of Block B-4, Lot 11 on the tax map of the City of
Atlantic City, Atlantic County, New Jersey, as more particularly
described on Schedule A appended hereto and made a part hereof,
together with all amendments, restatements, extensions and
renewals of said lease agreement.
"Maturity" when used with respect to any Indebtedness means
the date on which the principal (or any portion thereof) of such
Indebtedness becomes due and payable as therein or herein
provided, whether at the Stated Maturity, upon acceleration,
optional redemption, required repurchase, scheduled principal
payment or otherwise.
"Midlantic Mortgage" means the Amended and Restated
Indenture of Mortgage, dated as of May 29, 1992, from the
Mortgagor to Midlantic National Bank, the Amended and Restated
Assignment of Leases and Rents, dated as of May 29, 1992, between
the same parties, and the Amended and Restated Assignment of
Operating Assets, dated as of May 29, 1992, between the same
parties and all amendments, restatements, extensions and renewals
thereof, which comply with the provisions of Section 5.19 hereof
and with the Senior Note Indenture.
"Midlantic Term Loan" has the meaning set forth in
Section 1.1 of the Senior Note Indenture.
"Mortgage Debt" has the meaning set forth in Section 1.1 of
the Senior Note Indenture.
"Mortgage Documents" has the meaning set forth in
Section 1.1 of the Mortgage Note Indenture.
"Mortgage Note Indenture" means that certain indenture of
even date herewith among the Company, as issuer, the Mortgagor,
(14)
<PAGE>
as guarantor, and First Bank National Association, as trustee, as
it may be amended from time to time, relating to the Company's
Mortgage Notes.
"Mortgage Notes" means the 11-3/4% Mortgage Notes due 2003
issued by the Company pursuant to the Mortgage Note Indenture.
"Mortgagee" has the meaning set forth in the first paragraph
of this instrument and its successors.
"Mortgagor" means the Person named as "Mortgagor" in the
first paragraph of this instrument until a successor entity shall
have become such pursuant to the applicable provisions of this
Senior Guarantee Mortgage, and thereafter, except to the extent
otherwise contemplated by Section 4.2, "Mortgagor" shall mean
such successor entity exclusively.
"Mortgagor Order" and "Mortgagor Request" mean,
respectively, a written order or request signed with a Mortgagor
Signature and delivered to Mortgagee.
"Mortgagor Signature" means the signature of the President
or a Vice President of a corporate general partner of Mortgagor
or of a general partner of Mortgagor.
"Mortgagor's Certificate" means a certificate signed with a
Mortgagor Signature and delivered to Mortgagee.
"Notices" has the meaning set forth in Section 1.2.
"Operating Assets" has the meaning set forth in Granting
Clause Sixth.
"Opinion of Counsel" means a written opinion of counsel who
may (except as otherwise expressly provided in this Senior
Guarantee Mortgage) be an employee of Mortgagor or of an
Affiliate of Mortgagor.
"Original Policy" means the ALTA Loan Policies of
Title Insurance issued by First American Title Insurance Company,
Chicago Title Insurance Company and Commonwealth Land Title
Insurance Company, pursuant to Title Commitment No. F237584L,
dated the date hereof.
"Outstanding Amount" has the meaning set forth in
Section 1.1 of the Senior Note Indenture.
"Owned Land" has the meaning set forth in Granting Clause
First.
"Permits" means all licenses, franchises, authorizations,
statements of compliance, certificates of operation, certificates
(15)
<PAGE>
of occupancy and permits required for the lawful ownership,
occupancy, operation and use of all or a material portion of the
Premises whether held by Mortgagor or any other Person (which may
be temporary or permanent) (including, without limitation, those
required for the use of the Casino Hotel as a licensed casino
facility), in accordance with all applicable Legal Requirements.
"Permitted Encumbrances" means:
(1) liens for taxes, assessments, or governmental charges
not yet due and payable, or if due and payable not
delinquent, to the extent that any fine, penalty, interest or
cost may be added for nonpayment thereof;
(2) Existing Encumbrances (including the Superior
Mortgage);
(3) F,F&E Financing Agreements permitted by the Senior Note
Indenture;
(4) the liens of the Senior Note Mortgage Documents and the
Mortgage Documents and any rights granted as provided therein and
the Senior Guarantee Mortgage;
(5) the lien of the Trustee provided for in Section 6.6 of
the Senior Note Indenture and of the trustees under corresponding
sections of the Mortgage Note Indenture and the PIK Note
Indenture;
(6) any lien or encumbrance which, under the provisions of
Section 5.7, constitutes a Permitted Encumbrance;
(7) Restricted Encumbrances;
(8) Working Capital Facility Mortgage;
(9) any lien or encumbrance permitted under Section 5.3 of
this Mortgage;
(10) any lien or encumbrance securing purchase money
indebtedness permitted by the Senior Note Indenture;
(11) modifications, refinancings, extension, renewals or
replacements, in whole or in part, of the liens described in
clauses (2) through (10) of this definition to the extent
permitted by Section 5.19 hereof and the Senior Note Indenture;
and
(12) any Facility Lease now existing or hereafter entered
into.
(16)
<PAGE>
"Person" means any individual, corporation, limited or
general partnership, joint venture, association, joint stock
company, trust, unincorporated organization or any other entity
or government or any agency or political subdivision thereof.
"PIK Note Indenture" means that certain indenture of even
date herewith among the Company, as issuer, the Mortgagor, as
guarantor, and First Bank National Association, as trustee, as it
may be amended from time to time, relating to the Company's PIK
Notes.
"PIK Notes" means the Company's 13 7/8% Pay-in-Kind Notes
due 2005.
"Premises" has the meaning set forth in Granting Clause
Fourth.
"Restoration" has the meaning set forth in Section
5.10(e)(iii).
"Restricted Encumbrances" means any Leases permitted by and
made in accordance with Section 5.12 of this Senior Guarantee
Mortgage.
"Security Act" has the meaning set forth in Section 1.1 of
the Senior Note Indenture.
"Senior Assignment Agreement" means the Senior Assignment
Agreement of even date herewith made by the Company, as assignor,
to the Trustee, as assignee, providing for assignment of the
Senior Partnership Note and the Senior Note Mortgage.
"Senior Guarantee" means the Senior Note Guarantee by the
Partnership of the Company's Indenture obligations (as defined in
the Senior Note Indenture) pursuant to Article Fourteen of the
Senior Note Indenture.
"Senior Guarantee Mortgage" means this Indenture of Mortgage
and Security Agreement, which evidences a lien pari passu with
the Senior Note Mortgage.
"Senior Indebtedness" means the Indebtedness evidenced by
the Midlantic Term Loan, the Senior Partnership Note, the Senior
Guarantee and a Working Capital Facility and any amendments,
extensions, renewals, replacements or restatements of any of the
foregoing to the extent permitted by the Senior Note Indenture.
"Senior Note Indenture" means that certain indenture of even
date herewith among Mortgagor, as guarantor, the Company, as
issuer, and the Trustee, as trustee, relating to the Senior Notes
as it may from time to time be supplemented, modified or amended
by one or more trust indentures or other instruments supplemental
(17)
<PAGE>
thereto entered into pursuant to the applicable provisions
thereof.
"Senior Note Mortgage" means a certain Indenture of Mortgage
and Security Agreement, dated of even date herewith, between the
Mortgagor, as mortgagor/debtor, and the Company, as
mortgagee/secured party, securing the Senior Partnership Note and
which evidences a lien pari passu with this Senior Guarantee
Mortgage.
"Senior Notes" means the 11.5% Senior Secured Notes due 2000
issued by the Mortgagee under the Senior Note Indenture.
"Senior Partnership Note" means that certain Senior
Partnership Note of even date herewith in the original principal
amount of $27,000,000 made by Mortgagor in favor of the Company,
a true copy of which note is attached to the Senior Note
Indenture as Exhibit A, and any amendments, extensions, renewals,
replacements or restatements of the same to the extent permitted
under the Senior Note Indenture.
"Settlement Costs" has the meaning set forth in
Section 5.17.
"Stated Maturity" when used with respect to any
Indebtedness, means the date specified in such Indebtedness as
the fixed date on which the principal of such Indebtedness is due
and payable.
"Superior Instrument Requirements" means the applicable
terms, conditions and provisions of any documentation which
constitutes, evidences, secures or governs any Senior
Indebtedness, together with the terms and conditions of the
Marina Lease.
"Superior Mortgage" means, collectively, the Midlantic
Mortgage.
"Taking" means the acquisition or condemnation by eminent
domain of the whole or any part of the Premises, by a competent
authority, for any public or quasi-public use or purpose.
"Tangible Personal Property" has the meaning set forth
in subclause (f) of Granting Clause Sixth.
"Trust Estate" has the meaning stated in the habendum to the
Granting Clauses.
"Trust Indenture Act" has the meaning set forth in
Section 1.1 of the Senior Note Indenture.
(18)
<PAGE>
"Trustee" means the Person named as the "Trustee" in the
first paragraph of the Senior Note Indenture and any successor
thereto,
"Uniform Commercial Code" means the New Jersey Uniform
Commercial Code N.J.S.A. 12A:1-101, et seq.
"Working Capital Facility" has the meaning set forth in
Section 1.1 of the Senior Note Indenture.
"Working Capital Facility Mortgage" any mortgage or other
security interest or agreement which secures a Working Capital
Facility and which evidences a lien pari passu with the lien of
the Senior Note Mortgage.
Section 1.2. Notices.
(a) Any request, demand, authorization, direction, notice
(including, without limitation, a notice of default), consent,
waiver or other document provided or permitted by this Senior
Guarantee Mortgage to be made upon, given or furnished to, or
filed with, Mortgagor, Mortgagee or the Trustee (collectively,
"Notices") shall be in writing and shall be deemed given either
(i) when delivered by hand (including by overnight courier) or
(ii) two days after sending by registered or certified mail,
postage prepaid, addressed as follows:
To Mortgagor:
Trump's Castle Associates
Trump's Castle Casino Resort
Brigantine Boulevard and Huron Avenue
Atlantic City, New Jersey 08401
Attn: Chief Financial Officer
and
Willkie Farr & Gallagher
One Citicorp Center
153 East 53rd Street
New York, New York 10022
Attn: Thomas M. Cerabino, Esq.
To Mortgagee:
First Bank National Association
c/o First Trust National Association
180 East Fifth Street
St. Paul, Minnesota 55101
Attn: Corporate Trust Department
(19)
<PAGE>
(b) By Notice to Mortgagor or Mortgagee either party may
designate additional or substitute addresses for Notices which,
notwithstanding Subsection (a) above, shall be deemed given when
received.
Section 1.3. Form and Contents of
Documents Delivered to Mortgagee.
Whenever several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not
necessary that all such matters be certified by, or covered by
the opinion of, only one such Person, or that they be so
certified or covered by only one document, but one such Person
may certify or give an opinion with respect to some matters and
one or more other such Persons as to other such matters in one or
several documents.
Any certificate or opinion of a general partner of Mortgagor
may be based, insofar as it relates to legal matters, upon a
certificate or opinion of, or representations by, counsel, unless
such general partner knows that the certificate or opinion or
representations with respect to the matters upon which his
certificate or opinion is based are erroneous. Any Opinion of
Counsel may be based, insofar as it relates to factual matters,
upon a certificate or opinion of, or representations by, a
general partner of Mortgagor stating that the information with
respect to such factual matters is in the possession of
Mortgagor, unless such counsel knows that the certificate or
opinion or representations with respect to such matters are
erroneous. If appropriate to the matter being opined upon and to
the extent not prohibited by the Senior Note Indenture Act,
conclusions stated in any Opinion of Counsel may be subject to
rights of creditors and the availability of equitable remedies.
Whenever any Person is required to make, give or execute two
or more applications, requests, consents, certificates,
statements, opinions or other instruments under this Senior
Guarantee Mortgage, they may, but need not, be consolidated to
form one instrument.
Whenever in this Senior Guarantee Mortgage, in connection
with any application or certificate or report to Mortgagee, it is
provided that Mortgagor shall deliver any document as a condition
of the granting of such application, or as evidence of
Mortgagor's compliance with any term hereof, it is intended that
the truth and accuracy, at the time of the granting of such
application or at the effective date of such certificate or
report (as the case may be), of the facts and opinions stated in
such document shall in such case be conditions precedent to the
right of Mortgagor to have such application granted or to the
sufficiency of such certificate or report.
(20)
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Every application, certificate, report, affidavit, opinion,
consent, statement or other instrument required to be delivered
to Mortgagee under this Senior Guarantee Mortgage or under any
other Mortgage Document shall be in writing and shall be prepared
and delivered without cost or expense to Mortgagee.
Section 1.4. Compliance Certificates and Opinions.
Upon any application or request by Mortgagor to Mortgagee to
take any action under any provision of this Senior Guarantee
Mortgage, Mortgagor shall furnish to Mortgagee a Mortgagor's
Certificate stating that all conditions precedent, if any,
provided for in this Senior Guarantee Mortgage relating to the
proposed action have been complied with and an Opinion of Counsel
stating that in the opinion of such counsel all such conditions
precedent, if any, have been complied with, except that in the
case of any such application or request as to which the
furnishing of such documents is specifically required by any
provision of this Senior Guarantee Mortgage relating to such
particular application or request, no additional certificate or
opinion need be furnished. Every certificate or opinion with
respect to compliance with a condition or covenant provided for
in this Senior Guarantee Mortgage shall include:
(a) a statement that each individual signing such
certificate or opinion has read such condition or covenant and
the definitions herein relating thereto;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or
opinions contained in such certificate or opinion are based;
(c) a statement that, in the opinion of each such
individual, he has made such examination or investigation as is
necessary to enable him to express an informed opinion as to
whether or not such condition or covenant has been complied with;
and
(d) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 1.5. Effect of Headings and Table of Contents.
The Article and Section headings herein and in the Table of
Contents are for convenience only and shall not affect the
construction hereof.
Section 1.6. Successors and Assigns; Amendments.
(a) Subject to the provisions of Sections 1.10 and 4.2
hereof and Sections 3.11 and 8.2 of the Senior Note Indenture,
this Senior Guarantee Mortgage shall be binding upon and inure to
(21)
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the benefit of the parties hereto and of the respective
successors and assigns of the parties hereto to the same effect
as if each such successor or assign were in each case named as a
party to this Senior Guarantee Mortgage.
(b) This Senior Guarantee Mortgage may not be modified,
amended, discharged, released nor any of its provisions waived
except by agreement in writing executed by Mortgagor and
Mortgagee and in accordance with the provisions of this Senior
Guarantee Mortgage and the Senior Note Indenture.
Section 1.7. Separability Clause.
In case any provision in this Senior Guarantee Mortgage
shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not
in any way be affected or impaired thereby.
Section 1.8. Benefits of Mortgage.
Nothing in this Senior Guarantee Mortgage or in the Senior
Partnership Note, express or implied, shall give to any Person,
other than the parties hereto and their successors and assigns,
any benefit or any legal or equitable right, remedy or claim
under this Senior Guarantee Mortgage.
Section 1.9. Governing Law.
This Senior Guarantee Mortgage shall be deemed to be a
contract under the laws of the State of New Jersey and shall be
construed in accordance with and governed by the laws of the
State of New Jersey.
Section 1.10. Limitation on Liability.
Notwithstanding anything herein or in any other agreement,
document, certificate, instrument, statement or omission referred
to below to the contrary, Mortgagor is liable hereunder only to
the extent of the assets of Mortgagor and no other person or
entity, including, without limitation, any partner, officer,
committee or committee member of Mortgagor or any partner therein
or in any partnership Affiliate of Mortgagor, or any
incorporator, officer, director or shareholder of any corporate
partner of Mortgagor or of any corporate Affiliate of Mortgagor,
or any Affiliate or controlling person or entity of any of the
foregoing, or any agent, employee, or lender of any of the
foregoing, or any successor, personal representative, heir or
assign of any of the foregoing, in each case past, present or as
they may exist in the future, shall be liable in any respect
(including, without limitation, the breach of any representation,
warranty, covenant, agreement, condition or indemnification or
contribution undertaking contained herein or therein) under, in
(22)
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connection with, arising out of or relating to this Senior
Guarantee Mortgage, or any other agreement, document,
certificate, instrument or statement (oral or written) related
to, executed or to be executed, delivered or to be delivered, or
made or to be made, or any omission made or to be made, in
connection with any of the foregoing or any of the transactions
contemplated in any such agreement, document, certificate,
instrument, or statement. Any agreement, document, certificate,
statement or other instrument to be executed simultaneously with,
in connection with, arising out of or relating to this Senior
Guarantee Mortgage or any other agreement, document, certificate,
statement or instrument referred to above, or any agreement,
document, certificate, statement or instrument contemplated
hereby shall contain language mutatis mutandis to this Section
1.10 and, if such language is omitted, shall be deemed to contain
such language.
Section 1.11. Provisions Required by Senior Note Indenture.
Whenever the provisions of this Senior Guarantee Mortgage
and the provisions of the Senior Note Indenture shall be
inconsistent, the provisions of the Senior Note Indenture shall
govern.
Section 1.12. Rights of Trustee as Mortgagee.
Except as otherwise provided in Section 6.2 of the Senior
Note Indenture:
(1) Mortgagee may rely, and shall be protected in
acting or refraining from acting, upon any resolution,
certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note,
other evidence of indebtedness or other paper or document
believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(2) any request or direction of Mortgagor mentioned
herein shall be sufficiently evidenced by a Mortgagor
Request or Mortgagor Order;
(3) whenever in the administration of this Senior
Guarantee Mortgage, Mortgagee shall deem it desirable that a
matter be proved or established prior to taking, suffering
or omitting any action hereunder, Mortgagee (unless other
evidence be herein specifically prescribed) may, in the
absence of bad faith on its part, rely upon a Mortgagor's
Certificate;
(4) Mortgagee may consult with counsel and any written
advice of such counsel or any Opinion of Counsel shall be
full and complete authorization and protection in respect of
(23)
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any action taken, suffered or omitted by Mortgagee hereunder in
good faith and in reliance thereon;
(5) Mortgagee shall be under no obligation to exercise
any of the rights or powers vested in it by this Senior
Guarantee Mortgage at the request or direction of any of the
Holders pursuant to the Senior Note Indenture, unless such
Holders shall have offered to Mortgagee reasonable security
or indemnity against the costs, expenses and liabilities
which might be incurred therein or thereby in compliance
with such request or direction;
(6) Mortgagee shall not be bound to make any
investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order,
approval, appraisal, bond, debenture, note, coupon, security
or other paper or document but Mortgagee, in its discretion,
may make such further inquiry or investigation into such
facts or matters as it may see fit, and, if Mortgagee shall
determine to make such further inquiry or investigation, it
shall be entitled (subject to the express limitations with
respect thereto contained in this Senior Guarantee Mortgage)
to examine the books, records and premises of Mortgagor,
personally or by agent or attorney;
(7) Mortgagee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or
by or through agents or attorneys, and Mortgagee shall not
be responsible for any misconduct or negligence on the part
of any agent or attorney appointed with due care by it
hereunder;
(8) Mortgagee shall not be personally liable, in case
of entry by it upon the Trust Estate, for debts contracted
or liabilities or damages incurred in the management or
operation of the Trust Estate;
(9) Mortgagor shall pay or cause to be paid to the
Trustee all compensation and other amounts provided in
Section 6.6 of the Senior Note Indenture; and
(10) no provision of this Senior Guarantee Mortgage
shall require Mortgagee to expend or risk its own funds or
otherwise incur any financial liability in the performance
of its obligations hereunder, or in the exercise of any of
its rights or powers.
Section 1.13. Mortgage Subject to Casino Control Act.
(24)
<PAGE>
Each provision of this Senior Guarantee Mortgage is subject
to and shall be enforced in compliance with the provisions of the
New Jersey Casino Control Act.
Section 1.14. Discharge of Lien.
If (a) Mortgagor shall pay or cause to be paid, or there
shall otherwise be paid, to Mortgagee all amounts required to be
paid by Mortgagor pursuant to this Senior Guarantee Mortgage, the
Senior Notes and the Senior Note Guarantee and the conditions
precedent for the Senior Note Indenture to cease, determine and
become null and void (except for any surviving rights of transfer
or exchange of the Senior Notes provided in Section 13.1 of the
Senior Note Indenture and for the obligation to pay the Trustee's
fees and expenses provided in Section 6.6 of the Senior Note
Indenture) in accordance with Section 13.1 of the Senior Note
Indenture shall have occurred, or (b) there shall have occurred a
"defeasance" (as defined in Section 4.2 of the Senior Note
Indenture) of the Senior Notes, or (c) there shall have occurred
a "covenant defeasance" (as defined in Section 4.3 of the Senior
Note Indenture), then in any such case Mortgagee shall promptly
cancel and discharge this Senior Guarantee Mortgage, and any
financing statements filed in connection herewith and execute and
deliver to Mortgagor all such instruments as may be necessary,
required or appropriate to evidence such discharge and
satisfaction of said lien or liens.
Section 1.15. General Application.
(a) The remedies of Mortgagee upon any default by Mortgagor
in the fulfillment of any of its obligations hereunder shall be
limited in each instance by the provisions of Section 1.10,
whether or not the provisions providing for such remedies
explicitly refer to such Section.
(b) The assertion of any rights upon any Default shall be
subject in each instance to, if required, the giving of any
notice and the expiration of any grace period provided for in
Section 3.1 as a condition to such Default becoming an Event of
Default, unless the Senior Note Indenture Act requires otherwise,
in which case the Senior Note Indenture Act shall control.
(c) For the purposes of this Senior Guarantee Mortgage, it
is understood that an event which does not materially diminish
the value of Mortgagee's interest in the Trust Estate shall not
be deemed an "impairment of security," as that phrase is used in
this Senior Guarantee Mortgage.
Section 1.16. Senior Guarantee Mortgage Deemed to be Security
Agreement.
(25)
<PAGE>
To the extent that the grant of a security interest in any
portion of the Trust Estate is governed by the Uniform Commercial
Code, this Senior Guarantee Mortgage is hereby deemed to be as
well a security agreement under the Uniform Commercial Code for
the purpose of creating hereby a security interest in all of
Mortgagor's right, title and interest in and to said property,
securing the obligations secured hereby, for the benefit of
Mortgagee.
Section 1.17. No Duplication of Notices or Payments.
Whenever it is provided in this Senior Guarantee Mortgage
and the Senior Note Mortgage that Mortgagor shall deliver any
notice or document, or is required to make any payment, the
delivery of such notice or document or the making of such payment
shall constitute the delivery of such notice or document or the
making of such payment in satisfaction of the terms, conditions
and provisions of both this Senior Guarantee Mortgage and the
Senior Note Mortgage, provided that such notice, document or
payment states, or is accompanied by a letter stating, that such
notice, document or payment is being delivered in satisfaction of
the terms, conditions and provisions of this Senior Guarantee
Mortgage and the Senior Note Mortgage.
ARTICLE TWO
RELEASE; SUBORDINATION
Section 2.1. Possession by Mortgagor.
So long as there shall have been no acceleration of maturity
of the Senior Notes, Mortgagor shall be suffered and permitted,
with power freely and without let or hindrance on the part of
Mortgagee, subject to the provisions of this Senior Guarantee
Mortgage and the Senior Note Indenture, to possess, use, manage,
operate and enjoy the Trust Estate and every part thereof and to
collect, receive, use, invest and dispose of the rents, issues,
tolls, profits, revenues and other income from the Trust Estate
or any part thereof, to use, consume and dispose of any
consumable, goods, wares and merchandise in the ordinary course
of business of operating the Casino Hotel and to adjust and
settle all matters relating to choses in action, leases and
contracts.
Section 2.2. Obsolete Property.
Mortgagor shall have the right, at any time and from time to
time, unless an Event of Default shall have occurred and be
continuing, without any release from or consent by Mortgagee:
(a) to sell or dispose of, free from the lien of this
Senior Guarantee Mortgage, any Tangible Personal Property which,
(26)
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in its reasonable opinion, may have become obsolete or unfit for
use or which is no longer necessary in the conduct of its
businesses or the operation of the Trust Estate, and no purchaser
of any such property shall be bound to inquire into any question
affecting Mortgagor's right to sell or otherwise dispose of the
same free from the lien of this Senior Guarantee Mortgage;
(b) to alter, repair, replace, change the location or
position of and add to any Tangible Personal Property; provided,
however, that no change shall be made in the location of any such
property subject to the lien of this Senior Guarantee Mortgage
which would in any respect impair the security of this Senior
Guarantee Mortgage upon such property; or
(c) to renew, extend, surrender, terminate, modify or amend
any leases of Tangible Personal Property, when, in Mortgagor's
reasonable opinion, it is prudent to do so.
Mortgagor shall retain any net cash proceeds received from
the sale or disposition of any Tangible Personal Property under
Subsection (a) of this Section 2.2, in the business of operating
the Casino Hotel.
Mortgagee shall be under no responsibility or duty with
respect to the exercise of the rights of Mortgagor under this
Section 2.2 or the application of the proceeds of any sale or
disposition of any Tangible Personal Property.
Mortgagee shall, from time to time, promptly execute any
written instrument in form satisfactory to Mortgagee to confirm
the propriety of any action taken by Mortgagor under this Section
2.2, upon receipt by Mortgagee of a Mortgagor Request requesting
the same, together with a Mortgagor's Certificate stating that
the action so to be confirmed was duly taken in conformity with
this Section 2.2, and that the execution of such written
instrument is appropriate to confirm the propriety of such action
under this Section 2.2; provided, that Mortgagee shall have no
liability thereunder and all costs and expenses (including,
without limitation, reasonable attorneys' fees and disbursements)
shall be paid by Mortgagor.
Section 2.3. F,F&E Financing Agreements.
Notwithstanding any provision contained in this Senior
Guarantee Mortgage or the Senior Note Indenture to the contrary,
if Mortgagor acquires Tangible Personal Property and/or other
items constituting operating assets subject to any F,F&E
Financing Agreement, or becomes the lessee under a lease for any
of the same and if the document evidencing such F,F&E Financing
Agreement prohibits subordinate liens or the provisions of any
such lease prohibits any assignment thereof by the lessee, and if
any such prohibition is customary with respect to similar
(27)
<PAGE>
transactions of the lender or lessor (as evidenced by a
Mortgagor's Certificate delivered to Mortgagee, together with
such other evidence as Mortgagee may reasonably request), as the
case may be, then the property so purchased or the lessee's
interest in the lease, as the case may be, shall be deemed to be
Excepted Property. If any such F,F&E Financing Agreement permits
subordinate liens, then Mortgagee shall execute and deliver to
Mortgagor, at Mortgagor's expense, such documents as the holder
of such F,F&E Financing Agreement may reasonably request to
evidence the subordination of the lien of this Senior Guarantee
Mortgage and the Mortgage Documents to the lien of such F,F&E
Financing Agreement; provided, however, that Mortgagee shall have
no obligation to execute and deliver such documents, and the lien
of this Senior Guarantee Mortgage shall not be subordinate to any
such F,F&E Financing Agreement, unless (a) such F,F&E Financing
Agreement shall contain a provision binding upon the holder of
such F,F&E Financing Agreement that (i) if the holder of such
F,F&E Financing Agreement shall give to Mortgagor any notice of
default thereunder, such holder shall at the same time and in the
same manner serve a copy of such notice on Mortgagee at the
address designated herein (or such other address as Mortgagee may
designate by notice given to the holder of such F,F&E Financing
Agreement in the manner provided for notices hereunder), and that
no such notice to Mortgagor shall be deemed to have been duly
given unless and until a copy thereof has been so provided to
Mortgagee, and (ii) promptly following the last date upon which
Mortgagor may cure such default, if Mortgagor shall fail to cure
such default, the holder of such F,F&E Financing Agreement shall
give notice to Mortgagee stating the manner in which Mortgagor
shall have failed to cure its said default, in which event
Mortgagee shall be permitted to cure the default and, with
respect thereto, Mortgagee shall have the same amount of time,
after such notice, within which to cure the said default, as is
provided for under the provisions of such F,F&E Financing
Agreement to be given to Mortgagor therefor after notice or (b)
Mortgagor delivers to Mortgagee a Mortgagor's Certificate
certifying that (i) the provision described in clause (a) is not
customarily included by the lender or lessor in its F,F&E
Financing Agreements in similar transactions and (ii) although
Mortgagor has used reasonable efforts to have included in such
F,F&E Financing Agreement such a provision, Mortgagor has been
unsuccessful in obtaining such a provision.
ARTICLE THREE
REMEDIES
Section 3.1. Events of Default.
"Event of Default," whenever used herein, means any one of
the following events (including any applicable notice requirement
and any period of grace, as specified in this Section 3.1)
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(whatever the reason for such event and whether it shall be
voluntary or involuntary or be effected by operation of law or
pursuant to any judgment, decree or order of any court or any
order, rule or regulation of any administrative or governmental
body):
(a) default in the payment of any interest on the Senior
Notes or the Senior Partnership Note when such interest becomes
due and payable and continuance of such default for a period of
30 days; or
(b) default in the payment of all or any portion of the
principal of (or premium, if any, on) the Senior Partnership Note
or the Senior Notes when the same becomes due and payable at its
Maturity; or
(c) default in the payment of any other sum due under the
Senior Partnership Note, the Senior Notes or this Senior
Guarantee Mortgage, and the continuance of such default for a
period of 30 days after there has been given to Mortgagor a
notice specifying such default and requiring it to be remedied
and stating that such notice is a "Notice of Default" hereunder;
or
(d) default in the payment or performance of any obligation
under the Senior Note Guarantee at the time such payment or
performance is required under Article Fourteen of the Senior Note
Indenture; or
(e) default in the performance, or breach, of any
covenant of Mortgagor in this Senior Guarantee Mortgage (other
than a covenant, a default in the performance or breach of which
is elsewhere in this Section 3.1 specifically dealt with), and
continuance of such default or breach for a period of 30 days
after there has been given to Mortgagor a notice specifying such
default or breach and requiring it to be remedied and stating
that such notice is a "Notice of Default" hereunder, unless (i)
the default or breach is of such a nature that is curable but not
susceptible of being cured with due diligence within such 30-day
period (for reasons other than the lack of funds), (ii) Mortgagor
delivers an Mortgagor's Certificate to Mortgagee within such
30-day period stating (A) the applicability of the provisions of
clause (i) to such default or breach, (B) Mortgagor's intention
to remedy such default or breach with reasonable diligence and
(C) the steps which Mortgagor has undertaken or intends to
undertake to remedy such default or breach and (iii) Mortgagor
delivers to Mortgagee additional Mortgagor's Certificates every
30 days thereafter updating the information contained in the
certificate described in clause (ii), in which case such 30-day
period shall be extended for such further period of time (but in
no event more than 60 days after the last day of such 30-day
period) as may reasonably be required to cure the same, provided
(29)
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that Mortgagor is then proceeding and thereafter continues to
proceed to cure the same with reasonable diligence; or
(f) an "Event of Default," as defined in Section 5.1 of the
Senior Note Indenture, shall occur and be continuing; or
(g) default by Mortgagor under any of the terms of any
Facility Lease which shall not be fully cured or waived prior to
the expiration of any grace period (as such grace period may be
extended) contained in such Facility Lease; or
(h) default in the performance, or breach, of any of the
provisions of Article Four hereof; or
(i) if any representation or warranty of Mortgagor set
forth in this Senior Guarantee Mortgage or in any notice,
certificate, demand or request delivered to Mortgagee pursuant to
this Senior Guarantee Mortgage shall prove to be incorrect in any
material respect as of the time when made; or
(j) an "Event of Default, as defined in Section 3.1 of the
Senior Partnership Note Mortgage, shall occur and be continuing.
An Event of Default shall not be deemed to exist by reason
of any event which Mortgagor is contesting in compliance with the
provisions of Section 5.8.
Section 3.2. [Intentionally Omitted]
Section 3.3. Application of Moneys Received by Mortgagee.
Any moneys received by Mortgagee pursuant to the provisions
of this Article Three (including moneys received by the Trustee
after any action or act by Mortgagee under Section 3.10) shall be
applied by Mortgagee in accordance with the provisions of
Section 5.6 of the Senior Note Indenture.
Section 3.4. Restoration of Rights and Remedies.
If Mortgagee has instituted any proceeding to enforce any
right or remedy under this Senior Guarantee Mortgage and such
proceeding has been discontinued or abandoned for any reason or
has been determined adversely to Mortgagee, then and in every
such case Mortgagor and Mortgagee shall, subject to any
determination in such proceeding, be restored to their respective
former positions hereunder, and thereafter all rights and
remedies of Mortgagee shall continue as though no such proceeding
had been instituted.
Section 3.5. Rights and Remedies Cumulative.
(30)
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No right or remedy herein conferred upon or reserved to
Mortgagee is intended to be exclusive of any other right or
remedy, and every right and remedy shall, to the extent permitted
by law, be cumulative and in addition to every other right and
remedy given hereunder or now or hereafter existing at law or in
equity or otherwise. The assertion or employment of any right or
remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
Section 3.6. Delay or Omission Not Waiver.
No delay or omission of Mortgagee to exercise any right or
remedy accruing upon an Event of Default shall impair any such
right or remedy or constitute a waiver of any such Event of
Default or an acquiescence therein. Every right and remedy given
by this Article Three or by applicable law to Mortgagee may be
exercised, from time to time, and as often as may be deemed
expedient, by Mortgagee.
Section 3.7. Undertaking for Costs.
If any action or proceeding shall be commenced (including,
without limitation, an action to foreclose this Senior Guarantee
Mortgage or to collect the indebtedness secured hereby) to which
action or proceeding Mortgagee is made or becomes a party, or in
which it becomes necessary in the opinion of Mortgagee to defend
or uphold the lien of this Senior Guarantee Mortgage, Mortgagor
shall pay to Mortgagee all expenses, including, without
limitation, reasonable attorneys' fees, disbursements and court
costs incurred by Mortgagee in connection therewith, together
with interest at the rate then payable on the Senior Partnership
Note, from the date of payment less the net amount received by
Mortgagee, as its interests may appear under any title insurance
policy, and, until paid, all such expenses, together with
interest as aforesaid, shall be secured by the lien of this
Senior Guarantee Mortgage.
Section 3.8. Waiver of Appraisement and Other Laws.
To the full extent that it may lawfully so agree, Mortgagor
will not at any time insist upon, plead, claim or take the
benefit or advantage of, any appraisement, valuation, stay,
extension or redemption law now or hereafter in force, in order
to prevent or hinder the enforcement of this Senior Guarantee
Mortgage or the absolute sale of the Trust Estate, or any part
thereof, or the possession thereof by any purchaser at any sale
under this Article Three; and Mortgagor, for itself and all who
may claim under Mortgagor, so far as Mortgagor or they now or
hereafter may lawfully do so, hereby waives the benefit of all
such laws. Mortgagor, for itself and all who may claim under
Mortgagor, waives, to the extent that Mortgagor may lawfully do
so, all right to have the property in the Trust Estate marshalled
(31)
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upon any foreclosure hereof, and agrees that any court having
jurisdiction to foreclose this Senior Guarantee Mortgage may
order the sale of the Trust Estate as an entirety.
If any law in this Section 3.8 referred to and now in force,
of which Mortgagor or its successor or successors might take
advantage despite this Section 3.8, shall hereafter be repealed
or cease to be in force, such law shall not thereafter be deemed
to constitute any part of the contract herein contained or to
preclude the application of this Section 3.8.
Section 3.9. Entry.
Mortgagor agrees that upon the occurrence, and during the
continuance, of an Event of Default, Mortgagor, upon demand of
Mortgagee, shall forthwith surrender to Mortgagee the actual
possession of, and it shall be lawful for Mortgagee by such
officers or agents as it may appoint to enter and take possession
of, the Trust Estate (and the books and papers of Mortgagor), and
to hold, operate and manage the Trust Estate (including the
making of all needful repairs, and such alterations, additions
and improvements as Mortgagee shall deem wise) and to receive the
rents, issues, tolls, profits, revenues and other income thereof,
and, after deducting the costs and expenses of entering, taking
possession, holding, operating and managing the Trust Estate, as
well as payments for taxes, insurance and other proper charges
upon the Trust Estate and reasonable compensation to itself, its
agents and counsel, to apply the same as provided in Section 3.3;
provided, however, that Mortgagee's rights under this Section 3.9
shall be subject to the provisions of the New Jersey Casino
Control Act and Section 3.14. Whenever all that is then due upon
the Senior Partnership Note and under any of the terms of the
Senior Note Guarantee or this Senior Guarantee Mortgage shall
have been paid and all defaults hereunder shall have been cured,
Mortgagee shall surrender possession to Mortgagor.
Section 3.10. Power of Sale; Suits for Enforcement.
If an Event of Default shall occur and be continuing,
Mortgagee, with or without entry, in its discretion, may:
(a) sell, subject to any mandatory requirements of
applicable law, the Trust Estate as an entirety, or in such
parcels, as Mortgagee may determine, to the highest bidder at
public auction at such place and at such time (which sale may be
adjourned by Mortgagee from time to time in its discretion by
announcement at the time and place fixed for such sale, without
further notice) and upon such terms as Mortgagee may fix and
briefly specify in a notice of sale to be published as required
by law; or
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(b) proceed to protect and enforce its rights under this
Senior Guarantee Mortgage by sale pursuant to judicial
proceedings or by a suit, action or proceeding in equity or at
law or otherwise, whether for the specific performance of any
covenant or agreement contained in this Senior Guarantee Mortgage
or in aid of the execution of any power granted in this Senior
Guarantee Mortgage or for the foreclosure of this Senior
Guarantee Mortgage or for the enforcement of any other legal,
equitable or other remedy, as Mortgagee shall deem most effectual
to protect and enforce any of the rights of Mortgagee; the
failure to join tenants shall not be asserted as a defense to any
foreclosure or proceeding to enforce the rights of Mortgagee.
Section 3.11. Incidents of Sale.
Upon any sale of any of the Trust Estate, whether made under
the power of sale hereby given or pursuant to judicial
proceedings, to the extent permitted by law:
(a) the principal of and accrued interest on the Senior
Partnership Note, if not previously due, shall at once become and
be immediately due and payable;
(b) subject to the provisions of Section 3.14 and the
receipt of any required prior approvals of the New Jersey Casino
Control Commission, Mortgagee may bid for and purchase the
property offered for sale, and upon compliance with the terms of
sale may hold, retain, possess and dispose of such property,
without further accountability, and may, in paying the purchase
money therefor, deliver the Senior Partnership Note or claims for
interest thereon in lieu of cash to the amount which shall, upon
distribution of the net proceeds of such sale, be payable
thereon, and the Senior Partnership Note, in case the amounts so
payable thereon shall be less than the amount due thereon, shall
be returned to Mortgagee after being appropriately stamped to
show the partial payment;
(c) Mortgagee may make and deliver to the purchaser or
purchasers a good and sufficient deed, bill of sale and
instrument of assignment and transfer of the property sold;
(d) Mortgagee is hereby irrevocably appointed the true and
lawful attorney of Mortgagor, in its name and stead, to make all
necessary deeds, bills of sale and instruments of assignment and
transfer of the property thus sold; and for that purpose it may
execute all necessary deeds, bills of sale and instruments of
assignment and transfer, and may substitute one or more persons,
firms or corporations with like power, Mortgagor hereby ratifying
and confirming all that its said attorney or such substitute or
substitutes shall lawfully do by virtue hereof; but if so
requested by Mortgagee or by any purchaser, Mortgagor shall
ratify and confirm any such sale or transfer by executing and
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delivering to Mortgagee or to such purchaser or purchasers all
proper deeds, bills of sale, instruments of assignment and
transfer and releases as may be designated in any such request;
(e) all right, title, interest, claim and demand
whatsoever, either at law or in equity or otherwise, of Mortgagor
of, in and to the property so sold shall be divested and such
sale shall be a perpetual bar both at law and in equity against
Mortgagor, its successors and assigns, and against any and all
persons claiming or who may claim the property sold or any part
thereof from, through or under Mortgagor, its successors and
assigns; and
(f) the receipt of Mortgagee or of the officer making such
sale shall be a sufficient discharge to the purchaser or
purchasers at such sale for his or their purchase money and such
purchaser or purchasers and his or their assigns or personal
representatives shall not, after paying such purchase money and
receiving such receipt, be obliged to see to the application of
such purchase money, or be in anywise answerable for any loss,
misapplication or non-application thereof.
Section 3.12. Receiver.
Upon the occurrence of an Event of Default and commencement
of judicial proceedings by Mortgagee to enforce any right under
this Senior Guarantee Mortgage, Mortgagee shall be entitled, as
against Mortgagor, without notice or demand and without regard to
the adequacy of the security for the Senior Partnership Note or
the Senior Note Guarantee or the solvency of Mortgagor, to the
appointment of a receiver of the Trust Estate, and of the rents,
issues, profits, revenues and other income thereof; provided,
however, that Mortgagee's rights under this Section 3.12 shall be
subject to the provisions of the New Jersey Casino Control Act
and Section 3.14 hereof.
Section 3.13. Suits to Protect the Trust Estate.
Mortgagor hereby acknowledges the right of Mortgagee, in the
name and on behalf of Mortgagor, (a) to appear in and defend any
action or proceeding brought with respect to the Trust Estate or
any part thereof and (b) upon 5 days' prior notice to Mortgagor
(or such shorter period or without notice if deemed necessary and
appropriate by Mortgagee), to institute and to maintain such
proceedings as Mortgagee may deem necessary and appropriate, but
in the case of (a) and (b) only to prevent any impairment of
security or any impairment of the Trust Estate by any acts which
may be unlawful or in violation of this Senior Guarantee Mortgage
and to protect Mortgagee's interests in the Trust Estate and in
the rents, issues, profits, revenues and other income arising
therefrom, including the right to institute and maintain
proceedings to restrain the enforcement of or compliance with any
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governmental enactment, rule or order that may be
unconstitutional or otherwise invalid, if the enforcement of or
compliance with such enactment, rule or order would impair the
security hereunder or be materially prejudicial to the interests
of Mortgagee.
Section 3.14. Management of the Premises.
Without limiting the generality of any other provision of
this Article Three, following an Event of Default and the taking
of possession of the Trust Estate or any part thereof by
Mortgagee and/or the appointment of a receiver of the Trust
Estate or any part thereof, Mortgagee or any such receiver shall
be authorized, in addition to the rights and powers of Mortgagee
and such receiver set forth elsewhere in this Senior Guarantee
Mortgage, to take any action permitted under Section 5.17 of the
Senior Note Indenture.
ARTICLE FOUR
CONSOLIDATION, MERGER, CONVEYANCE,
TRANSFER OR LEASE
Section 4.1. Consolidation, Merger, Conveyance
or Transfer only on Certain Terms.
Mortgagor shall comply with all provisions applicable to
Mortgagor in Article Eight of the Senior Note Indenture.
Section 4.2. Successor Entity Substituted.
Upon any consolidation or merger, or any sale, assignment,
conveyance, transfer or disposition of the Trust Estate or any
portion thereof in accordance with Section 8.1 of the Senior Note
Indenture (other than a lease), the successor Person formed by
such consolidation or into which Mortgagor is merged or the
successor Person to which such sale, assignment, conveyance,
transfer or disposition is made shall succeed to, and be
substituted for, and may exercise every right and power of,
Mortgagor under this Senior Guarantee Mortgage with the same
effect as if such successor had been named as Mortgagor herein;
and thereafter, except in the case of a lease, the Person named
as "Mortgagor" in the first paragraph of this instrument or any
successor Person which shall theretofore have become such in the
manner prescribed in this Article shall be discharged from all
obligations and covenants under this Senior Guarantee Mortgage.
ARTICLE FIVE
COVENANTS AND REPRESENTATIONS OF MORTGAGOR
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Section 5.1. Performance of Senior Note Guarantee Obligations.
Mortgagor shall duly and punctually pay and perform its
obligations under the Senior Note Guarantee in accordance with
the terms of the Senior Note Indenture (including, without
limitation, Article Fourteen thereof).
Section 5.2. F,F&E Financing Agreements.
Mortgagor shall comply with all of the terms and conditions
set forth in any F,F&E Financing Agreements before the expiration
of any applicable notice and cure periods contained in the F,F&E
Financing Agreements.
Section 5.3. Limitations on Liens and Transfers.
(a) Mortgagor shall not create, incur, suffer or permit to
be created or incurred or to exist any mortgage, lien, charge or
encumbrance on or pledge of any of the Trust Estate, other than
(i) Permitted Encumbrances, (ii) a notice of intention filed by a
mechanic, materialman or laborer under the New Jersey mechanic's
lien law, and (iii) a building contract filed by a contractor or
subcontractor under the New Jersey mechanic's lien law. Without
limiting the generality of the foregoing sentence but
notwithstanding the provisions of the foregoing sentence,
Mortgagor shall not be deemed to have breached the provisions of
the foregoing sentence by virtue of the existence of a lien for
Impositions or mechanics' liens so long as Mortgagor is in good
faith contesting the validity of the same in accordance with the
provisions of Section 5.8.
(b) The lien of this Senior Guarantee Mortgage on the date
hereof shall be subject and subordinate to the lien of any
Existing Encumbrances to the extent that each thereof encumbers
Mortgagor's interest in the Trust Estate or any part thereof.
The foregoing provisions of this Section 5.3(b) shall be
self-operative and no further instrument shall be required to
give effect to such subordination. Mortgagee shall, however,
from time to time, after receipt of a Mortgagor Request therefor
(accompanied by a Mortgagor's Certificate stating that said
conditions have been satisfied) execute instruments in form and
substance reasonably satisfactory to the holder of the Superior
Mortgage confirming such subordination.
(c) Except as otherwise expressly permitted under this
Senior Guarantee Mortgage and the Senior Note Indenture
(including, without limitation, Article Eight of the Senior Note
Indenture), Mortgagor shall not sell, assign, lease or otherwise
transfer all or any portion of the Trust Estate or any interest
therein. Notwithstanding the foregoing, Mortgagor shall have the
right, at any time and from time to time, unless an Event of
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Default shall have occurred and be continuing, without any
release from or consent by Mortgagee, to grant interests in the
Owned Land in the nature of rights-of-way or easements, or other
rights or privileges in the nature of easements; provided, (i)
that none of the same will reduce or impair, in any material
respect, (A) the value or usefulness of the Trust Estate or any
part thereof or (B) the normal operation of the Casino Hotel in
accordance with all Legal Requirements and all Permits, (ii)
Mortgagor has delivered to Mortgagee a Mortgagor's Certificate,
dated not earlier than 10 days prior to the date of each such
grant, certifying that (A) no Event of Default has occurred and
is continuing and (B) the conditions set forth in this Section
5.3(c) for such grant have been fulfilled and (iii) Mortgagor has
delivered to Mortgagee a duplicate original of the instrument, if
any, pursuant to which such grant is to be made, and such other
instruments, certificates and opinions as Mortgagee may
reasonably request. The foregoing provisions of this Section
5.3(c) shall be self-operative and no further instrument shall be
required to evidence the consent of Mortgagee to the grant or
other conveyance of such rights-of-way or easements. Mortgagee
shall, however, from time to time, after receipt of a Mortgagor
Request therefor (accompanied by a Mortgagor's Certificate
stating that said conditions have been satisfied) execute
instruments in form and substance reasonably satisfactory to
Mortgagee confirming the permissibility of such grant or other
conveyance.
Section 5.4. Environmental.
Without limiting the generality of any other provision of
this Senior Guarantee Mortgage, Mortgagor covenants, represents
and warrants to Mortgagee as follows:
(a) Mortgagor shall comply with any and all federal, state
and local environmental legislation, rules, and regulations in
effect as of the date of this Senior Guarantee Mortgage and
subsequent thereto, including, without limitation, the Spill
Compensation and Control Act (N.J.S.A. 58:10-23. 11 et seq.)
(the"Spill Act"); the Industrial Site Recovery Act (N.J.S.A.
13:1K-6 et seq.) ("ISRA"); the Solid Waste Management Act
(N.J.S.A. 13:E-1 et seq.); the Resource, Conservation and
Recovery Act (42 U.S.C. Section 6901 et seq.) ("RCRA"); the
Comprehensive Environmental Response, Compensation and Liability
Act (42 U.S.C. Section 9601 et seq.) ("CERCLA") and such other
environmental legislation, rules and regulations, as are in or
may come into effect and apply to (i) Mortgagor and/or Mortgagee
with respect to the Premises or (ii) the transactions
contemplated hereby, and as to any occupants or users of the
collateral, whether as lessees, tenants, licensees or otherwise,
Mortgagor shall use its best efforts to cause same to comply with
said legislation, rules and regulations. Mortgagor agrees to pay
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all costs required in connection with compliance with the
foregoing legislation, rules and regulations.
(b) Mortgagor has not used in the past, nor shall Mortgagor
use in the future, the Premises for the purpose of refining,
producing, storing, handling, transferring, processing or
transporting "Hazardous Substances", as such term is defined in
ISRA, the Spill Act, CERCLA or the regulations relating thereto,
except that Mortgagor and its subsidiaries have used, and
Mortgagor may continue in the future to use, substances in the
operation and maintenance of the Premises, including, without
limitation, heating oil, gasoline and cleaning chemicals which
could be considered as "Hazardous Substances" under the preceding
definition.
(c) To the best of Mortgagor's knowledge, after due inquiry
and investigation, none of the real property owned, leased and/or
occupied by Mortgagor and located in the State of New Jersey,
including, without limitation, the Premises, has been or is now
being used as a "Major Facility" as such term is defined in
N.J.S.A. 58:10-23.11b(1). Mortgagor will not use the Premises in
the future as a "Major Facility".
(d) To the best of Mortgagor's knowledge, after due inquiry
and investigation, no lien has been attached to any revenues or
any real or personal property owned by Mortgagor or the Premises,
as a result of the Chief Executive of the New Jersey Spill
Compensation Fund expending monies from said fund to pay for
"Cleanup Costs", as such term is defined in N.J.S.A.
58:10-23.11b(d), arising from an intentional or unintentional
action or omission of Mortgagor or any previous owner and/or
operator of such real property.
(e) There is no asbestos or asbestos containing material on
the Premises. To the best of Mortgagor's knowledge, there are no
underground storage tanks located at the Premises, other than
those tanks previously disclosed to Mortgagee and which are
maintained in accordance with all material Legal Requirements.
Mortgagor has not installed or placed, or permitted to be
installed or placed, any underground storage tanks at or on the
Premises, other than those tanks previously disclosed to
Mortgagee and which are maintained in accordance with all
material Legal Requirements. Underground storage tanks shall
have the definition as set forth in N.J.S.A. 58:10A-22(p).
(f) Mortgagor has not received a summons, citation,
directive, letter, other written communication, or, to the best
of its knowledge, any oral communication, from the New Jersey
Department of Environmental Protection and Energy or from any
other person, firm or corporation concerning any intentional or
unintentional action or omission on Mortgagor's part resulting in
the releasing, spilling, leaking, pumping, pouring, emitting,
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emptying or dumping of "Hazardous Substances", as such term is
defined in N.J.S.A. 58:10-23.11b(k), into the waters or onto the
lands of the State of New Jersey, or into the waters outside the
jurisdiction of the State of New Jersey, in either case resulting
in damage to the lands, waters, fish, shellfish, wildlife, biota,
air and other resources owned, managed, held in trust or
otherwise controlled by the State of New Jersey.
(g) In connection with any purchase of the Premises or any
business or assets located thereon or any "closing, terminating
or transferring operations" of any "industrial establishment", as
that term is defined in ISRA, occurring on or after December 31,
1983, Mortgagor required that the owner and or operator of the
industrial establishment comply with the provisions of ECRA and
the owner and or operator did comply therewith.
(h) Upon the occurrence of an Event (as hereinafter
defined), Mortgagee shall have the right to have its consultants
perform a comprehensive environmental audit of the Premises.
Such audit shall be conducted by an environmental consultant
chosen by Mortgagee and may include a visual survey, a record
review, an area reconnaissance assessing the presence of
hazardous or toxic waste or substances, PCBs or storage tanks at
the Premises, an asbestos survey of the Premises, which may
include random sampling of the improvements and air quality
testing, and such further site assessments as Mortgagee may
reasonably require due to the results obtained from the
foregoing. Mortgagor grants Mortgagee, its agents, consultants
and contractors the right to enter the Premises for the purposes
of performing such studies and the cost of such studies shall be
due and payable by Mortgagor to Mortgagee upon demand and shall
be secured by the lien of this Senior Guarantee Mortgage.
Mortgagee shall direct the environmental consultant to use its
best efforts not to hinder Mortgagor's or any tenant's operations
when conducting such audit, sampling or inspections. For
purposes of this paragraph, the term "Event" shall mean (i) the
occurrence of any Event of Default, (ii) the issuance of any
summons, citation, directive or similar written notice from the
New Jersey Department of Environmental Protection and Energy or
from any other local, state or federal entity or from any other
person, firm or corporation concerning any alleged material
violation of any and all federal, state and local environmental
legislation, rules and regulations in effect as of the date of
this Senior Guarantee Mortgage and subsequent thereto or (iii)
the initiation of any legal action, suits or other legal or
administrative proceedings relating to or in connection with any
alleged violation of any and all federal, state and local
environmental legislation, rules and regulations in effect as of
the date of this Senior Guarantee Mortgage and subsequent
thereto.
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(i) If a lien shall be filed against the Premises by the
New Jersey Department of Environmental Protection and Energy,
pursuant to and in accordance with the provisions of N.J.S.A.
58:10-23.11f(f), as a result of the Chief Executive of the New
Jersey Spill Compensation Fund having expended monies from said
fund to pay for "Damages", as such term is defined in N.J.S.A.
58:10-23.11g, and/or "Cleanup and Removal-Costs", as such term is
defined in N.J.S.A. 58:10-23(b), arising from an intentional or
unintentional action or omission of Mortgagor resulting in the
releasing, spilling, pumping, pouring, emitting, emptying or
dumping of "Hazardous Substances", as such term is defined in
N.J.S.A. 58:10-23.11(b)k into waters of the State of New Jersey
or onto lands from which it might flow or drain into said waters,
then, unless there is a good faith basis for contesting such lien
and Mortgagor is so contesting such lien in accordance with
Section 5.9, Mortgagor shall, within 30 days from the date that
Mortgagor is given notice that the lien has been placed against
the Premises or within such shorter period of time if the State
of New Jersey has commenced steps to cause the Premises to be
sold pursuant to the lien, either (i) pay the claim and remove
the lien from the Premises, or (ii) furnish (A) a bond
satisfactory to a title company selected by Mortgagee (the "Title
Insurer") in the amount of the claim out of which the lien
arises, (B) to the Trustee, a cash deposit (which may be
disbursed by the Trustee in its sole discretion) in the amount of
the claim out of which the lien arises, or (C) other security
reasonably satisfactory to Mortgagee in an amount sufficient to
discharge the claim out of which the lien arises.
(j) Mortgagor shall use its best efforts to cause
compliance by all lessees with all applicable Legal Requirements
relating to environmental protection.
(k) Mortgagor shall promptly provide Mortgagee with copies
of all notices received by or prepared by Mortgagor in connection
with ISRA, CERCLA, the Spill Act, RCRA or any other environmental
law, rule or regulation relating to the Premises. For purposes
of this paragraph, the term "notice" shall mean any summons,
citation, directive, order, claim, pleading, letter, application,
filing, report, findings, declarations or other materials
pertinent to compliance of the Trust Estate and Mortgagor with
such environmental laws, rules or regulations.
(l) If this Senior Guarantee Mortgage is foreclosed,
Mortgagor shall deliver the Premises in compliance with all
applicable federal, state and local environmental laws,
ordinances, rules and regulations, including, without limitation,
ISRA.
(m) Without limiting the generality of Section 5.20,
Mortgagor agrees to defend, indemnify and save Mortgagee harmless
from and against any loss or liability, cost or expense
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(including, without limitation, reasonable attorneys' fees,
consultants' fees, disbursements and court costs) arising out of,
or incurred in connection with, Mortgagor's misrepresentation, or
failure promptly (but in no event to exceed the time period
permitted by law) to comply with and perform its obligations,
under this Section 5.4. The provisions of this subsection (m)
shall survive any transfer of the Premises, including a transfer
after a foreclosure of this Senior Guarantee Mortgage.
Section 5.5. Warranty of Leasehold Estate and Title.
Mortgagor represents and warrants that as of the date
hereof:
(a) Mortgagor is duly authorized under the laws of the
State of New Jersey and all other applicable laws to execute and
deliver this Senior Guarantee Mortgage, and all partnership
action on Mortgagor's part necessary for the valid execution and
delivery of this Senior Guarantee Mortgage has been duly and
effectively taken;
(b) Mortgagor is the lawful owner and is lawfully seized
and possessed of the Owned Land and all buildings and
improvements thereon, free and clear of all liens, charges or
encumbrances, other than the Senior Note Mortgage and the
Existing Encumbrances;
(c) Mortgagor is the holder of and has good and marketable
title to the leasehold interests and leasehold estates under all
existing Facility Leases, subject to no lien, encumbrance or
charge other than Existing Encumbrances;
(d) (i) each existing Facility Lease is a valid and
subsisting demise of the respective Leased Land for the term
therein set forth, (ii) there are no defaults under any Facility
Lease by any lessor or the lessee as to which written notice has
been given to or by the lessee, (iii) Mortgagor has delivered to
Mortgagee and the Trustee a true and correct copy of each
existing Facility Lease, and all modifications, amendments and
supplements thereto, and (iv) each existing Facility Lease is in
full force and effect and has not been modified, amended or
supplemented, except as described on Schedule 3;
(e) Mortgagor has good title to the Operating Assets,
subject to no lien, encumbrance or charge, other than Existing
Encumbrances;
(f) Mortgagor has good and lawful right and authority to
execute this Senior Guarantee Mortgage and to grant, bargain,
sell, alien, convey, assign, transfer, hypothecate, pledge,
mortgage and confirm the Trust Estate as provided herein
(including, without limitation, with respect to the Operating
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Assets and Facility Leases), without the consent of any third
party, other than governmental authorities and other secured
Persons but any applicable or necessary consent or approval of
any such governmental authority and other such Persons has been
given or waived in accordance with applicable law at or prior to
the execution and delivery of this Senior Guarantee Mortgage, and
this Senior Guarantee Mortgage constitutes a valid first mortgage
lien and deed of trust and first priority security interest in
the Trust Estate, subject only to Existing Encumbrances
(including, without limitation, the Superior Mortgage) and the
Senior Note Mortgage; and
(g) (i) all amounts due under the Superior Mortgage and the
instruments secured thereby have been paid to the extent they
were due and payable to the date hereof, and (ii) there is no
existing default under said Superior Mortgage or instruments, or
in the performance of any of the terms, covenants, conditions or
warranties therein on the part of Mortgagor to be performed and
observed thereunder as to which written notice has been given to
Mortgagor.
Mortgagor hereby does and shall forever warrant and defend
(a) the title to the Trust Estate (including, without limitation,
Mortgagor's leasehold estate under, and the lessee's interests
in, each existing Facility Lease) (subject to Permitted
Encumbrances) and (b) the pari passu lien of the Senior Note
Mortgage thereon (subject to Permitted Encumbrances other than
Restricted Encumbrances), against the claims and demands of all
persons whomsoever, at Mortgagor's sole cost and expense.
Section 5.6. After-Acquired Property;
Further Assurances; Recording.
All property, real, personal or mixed or any interest
therein (other than Excepted Property), of every kind and
description and wheresoever situate, which may be hereafter
acquired by Mortgagor (including, without limitation, fee title
to any Leased Land) shall immediately upon the acquisition
thereof by Mortgagor, and without any further mortgage,
conveyance or assignment, become subject to the lien of this
Senior Guarantee Mortgage as fully as though now owned by
Mortgagor and covered by the Granting Clauses. Nevertheless,
Mortgagor shall do, execute, acknowledge and deliver all and
every such further acts, conveyances, mortgages, financing
statements and assurances as Mortgagee shall require for
accomplishing the express purposes of this Senior Guarantee
Mortgage.
Mortgagor shall, as provided in Section 5.12, from time to
time subject to the lien of this Senior Guarantee Mortgage its
right, title and interest under all Leases.
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Mortgagor shall use reasonable efforts to insure that all
Operating Assets (other than Excepted Property) or any interest
therein hereafter acquired by Mortgagor shall be assignable to
Mortgagee, and to the extent such assignment to Mortgagee
requires the consent of any governmental authority or any other
Person, Mortgagor shall use reasonable efforts to obtain such
consent or a waiver thereof.
Mortgagor shall cause this instrument and all other
instruments of further assurance, including all financing
statements and continuation statements covering security
interests in personal property, to be promptly recorded,
registered and filed, and at all times to be kept recorded,
registered and filed, and shall execute and file such financing
statements and cause to be issued and filed such continuation
statements, all in such manner and in such places as may be
required by law or as requested by Mortgagee to fully preserve
and protect the rights of Mortgagee as a secured party under the
Uniform Commercial Code to all property comprising the Trust
Estate (to the extent a grant of a security interest therein is
governed by the Uniform Commercial Code) and to perfect, preserve
and protect the lien of this Senior Guarantee Mortgage as a valid
direct first mortgage lien of record and a valid first priority
security interest on the Trust Estate, subject only to Permitted
Encumbrances (including, without limitation, the Superior
Mortgage).
Mortgagor shall pay all filing or recording fees, and all
expenses incident to the execution and delivery of this Senior
Guarantee Mortgage, any financing statement or continuation
statement with respect to the personal property constituting part
of the Trust Estate, and any instrument of further assurance, and
all federal, state, county and municipal stamp taxes and other
taxes, duties, imposts, assessments and charges arising out of or
in connection with the execution and delivery of the Senior
Partnership Note, this Senior Guarantee Mortgage, any financing
statement or continuation statement with respect to the personal
property constituting part of the Trust Estate or any instrument
of further assurance.
Mortgagor shall furnish to Mortgagee promptly after the
acquisition hereafter by Mortgagor of any fee interest or
leasehold interest in real property having a fair market value
exceeding $500,000 (other than Excepted Property), (a) a
mortgagee policy of title insurance on the most recent form of
American Land Title Association standard loan policy, extended
coverage, which policy shall (i) contain all such endorsements
and affirmative insurance, to the extent reasonably applicable,
as is contained in the Original Policy and (ii) evidence that
title to such real property is subject to no liens or
encumbrances (other than Permitted Encumbrances) which would (A)
render title unmarketable or (B) violate any other provision of
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this Senior Guarantee Mortgage or the Senior Note Indenture, (b)
an as-built survey meeting the "Minimum Standard Detail
Requirements for ALTA/ACSM Land Title Surveys", certified within
60 days prior to the acquisition date by a surveyor licensed in
the State of New Jersey using the same form of certification as
that contained in the surveys of the Premises delivered to the
Trustee on the date of this Senior Guarantee Mortgage and (c) a
Mortgagor's Certificate certifying that the mortgagee policy of
title insurance and survey delivered pursuant to clauses (a) and
(b) comply, respectively, with the provisions of such clauses (a)
and (b). Upon delivery of all of the items required under this
paragraph, any liens or encumbrances on such real property shall
constitute Permitted Encumbrances hereunder.
Section 5.7. Payment of Taxes and Certain Claims;
Maintenance of Properties; Compliance with
Legal Requirements and Insurance Requirements.
Mortgagor shall:
(a) subject to the provisions of Section 5.8, pay or cause
to be paid before the date on which any fine, penalty, interest
or cost may be added for nonpayment (but no later than when the
same are payable by Mortgagor pursuant to any Superior Instrument
Requirement), all taxes (including, without limitation, real
estate taxes, personal or other property taxes and all sales,
value added, use and similar taxes), assessments (including,
without limitation, all assessments for public improvements or
benefits, whether or not commenced or completed prior to the date
hereof and whether or not to be completed prior to the
satisfaction of this Senior Guarantee Mortgage), water, sewer or
other rents, rates and charges, excises, levies, license fees,
permit fees, inspection fees and other authorization fees and
other charges, in each case whether general or special, ordinary
or extraordinary, foreseen or unforeseen, of every character
(including, without limitation, all interest, additions to tax
and penalties thereon), that may be assessed, levied, confirmed
or imposed on or in respect of or be a lien upon (i) the Trust
Estate (including, without limitation, the Leased Land) or any
part thereof or any rent therefrom or any estate right or
interest therein, or (ii) any acquisition, occupancy, use,
leasing, or possession of or activity conducted on the real
property or any part thereof included in the Trust Estate or any
gross receipts thereof or of the rent therefrom (all of the
foregoing being referred to collectively as "Impositions").
Notwithstanding the foregoing or any other provision of this
Senior Guarantee Mortgage, Mortgagor shall not be required to pay
any income, profits or revenue tax upon the income of Mortgagee,
the Trustee or the Holders nor any franchise, excise, corporate,
estate, inheritance, succession, capital levy or transfer tax of
Mortgagee, the Trustee or the Holders nor any interest, additions
to tax or penalties in respect thereof, unless such tax is
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imposed, levied or assessed in substitution for any Imposition
that Mortgagor is required to pay pursuant to this Section 5.7.
Mortgagor shall deliver to Mortgagee, at Mortgagee's request,
official receipts or other proof evidencing payments of any
Impositions in accordance with the requirements of this Section
5.7. Mortgagor shall not be entitled to any credit for taxes or
assessments paid against the Senior Notes;
(b) except for such obsolete property as Mortgagor may
dispose of or replace pursuant to Section 2.2, maintain and keep
all of Mortgagor's properties used or useful in the conduct of
Mortgagor's business, including, without limitation, the Casino
Hotel and all Tangible Personal Property, in such good repair,
working order and condition, except for reasonable wear and use,
and make or cause to be made all such needful and proper repairs,
renewals and replacements thereto consistent with the standards
of first-class casino and hotel complexes in Atlantic City, New
Jersey;
(c) occupy and continuously operate the Casino Hotel and
keep the Casino Hotel supplied with Tangible Personal Property,
all in a manner consistent with the standards of first-class
casino and hotel complexes in Atlantic City, New Jersey;
(d) subject to the provisions of Section 5.8, (i) comply
with all Legal Requirements and Insurance Requirements, whether
or not compliance therewith shall require structural changes in
the buildings and improvements included in the Trust Estate or
interfere with the use and enjoyment of the Trust Estate or any
part thereof, (ii) procure, maintain and comply with all Permits
required for (1) the use of the Casino as a gaming and gambling
facility, (2) the on-premises consumption of alcoholic beverages
at the Casino Hotel and (3) any other use of the Trust Estate or
any part thereof then being made, and for the proper erection,
installation, operation and maintenance of the improvements or
any part thereof, (iii) comply with all obligations of Mortgagor
under, and keep in full force and effect, all easements which in
any respect inure to the benefit of, or otherwise affect, the
Trust Estate or any part thereof, if the failure to comply with
the same would impair Mortgagee's security hereunder, and (iv)
without limiting the generality of clause (iii), comply with any
instruments of record at the time in force affecting the Trust
Estate or any part thereof, if the failure to comply with the
same would impair Mortgagee's security hereunder. Without
limiting the generality of the foregoing, Mortgagor represents
and warrants that at the time of the execution of this Senior
Guarantee Mortgage, Mortgagor is in compliance with the
requirements of clauses (i), (ii), (iii) and (iv) above; and
(e) in the event of the passage after the date of this
Senior Guarantee Mortgage of any law of the State of New Jersey,
or any other governmental entity, changing in any way the laws
(45)
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now in force for the taxation of mortgages, or debts secured
thereby, for federal, state or local purposes, or the manner of
the operation of any such taxes, so as to affect the interest of
Mortgagee, pay the full amount of such new or additional taxes.
Section 5.8. Permitted Contests.
Notwithstanding anything in this Senior Guarantee Mortgage
to the contrary, Mortgagor, at Mortgagor's expense, may contest
(after prior notice to Mortgagee) by appropriate legal
proceedings conducted in good faith and with due diligence, the
amount or validity or application, in whole or in part, of any
Imposition or lien therefor or any Legal Requirement or Insurance
Requirement or the application of any instrument of record
(including, without limitation, any Superior Instrument
Requirement) affecting the Trust Estate or any part thereof or
any claims of holders of F,F&E Financing Agreements, mechanics,
materialmen, suppliers, or vendors or lien therefor, and may
withhold payment of the same pending such proceedings if
permitted by law, or make payment under protest, or defer
compliance with any such Legal Requirement, any such Insurance
Requirement or the terms of any such instrument, and the same
shall not be a Default hereunder; provided, that (a) in the case
of any Impositions or lien therefor or any claims of mechanics,
materialmen, suppliers or vendors or lien therefor, such
proceedings shall suspend the collection thereof from each of
Mortgagor, Mortgagee, the Trustee, the Holders and the Trust
Estate, (b) neither the Trust Estate nor any interest therein
would be in any significant danger of being sold, forfeited, or
lost, (c) such action will not result in (i) the termination of
any Facility Lease or (ii) the holder of any Superior Mortgage
having a right to exercise any rights or remedies thereunder, (d)
in the case of a Legal Requirement, neither the Holders nor
Mortgagee shall be in any significant danger of any civil
liability or any danger of any criminal liability, and the
failure of Mortgagor to comply with such Legal Requirement shall
not affect the continuance in good standing of any Permit or
result in the suspension, termination, non-renewal or material
adverse modification of any Permit, and (e) in the case of an
Insurance Requirement, the failure of Mortgagor to comply
therewith shall not affect the validity of any insurance required
to be maintained by Mortgagor hereunder.
Section 5.9. Mechanics' and Other Liens.
Mortgagor shall cause to be removed, either by payment, or
bonding or otherwise, all claims and demands of mechanics,
materialmen, laborers, and others which, if unpaid, might result
in, or permit the creation of, a lien on the Premises and/or
Trust Estate or any part thereof, or on the revenues, rents,
issues, income and profits arising therefrom and in general shall
do or cause to be done everything necessary so that the lien
(46)
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hereof shall be fully preserved, at the cost of Mortgagor,
without expense to Mortgagee.
Section 5.10. To Insure.
(a) Mortgagor, at Mortgagor's expense, shall maintain with
Insurers:
(i) insurance with respect to Mortgagor's insurable
properties constituting a part of the Trust Estate against
loss or damage by fire, lightning, and other risks from time
to time included under "all-risk" policies and against loss
or damage by sprinkler leakage, water damage, collapse,
malicious mischief and explosion in respect of any steam and
pressure boilers and similar apparatus located on such
insurable properties, in amounts at all times sufficient to
prevent Mortgagor from becoming a coinsurer within the terms
of the applicable policies, but in any event such insurance
shall be maintained in not less than the greatest of the
following (the "Insurance Amount"): (A) 100% of the then
Full Insurable Value of such insurable properties,
determined from time to time (but not less frequently than
once in any 36 calendar months), by an Appraiser or Insurer,
(B) the then Outstanding Amount of Mortgage Debt, including
the Senior Partnership Note, or (C) the amount required to
be maintained pursuant to the Superior Instrument
Requirements;
(ii) war risk insurance as and when such insurance is
obtainable from the United States of America or any agency
thereof as promptly as reasonably practicable after the same
becomes so obtainable, in an amount not less than the
Insurance Amount, or, if such insurance cannot be obtained
in an amount not less than the Insurance Amount, in such
lesser amount as may then be so obtainable;
(iii) comprehensive general liability insurance,
including, without limitation, blanket contractual liability
coverage, broad form property damage, independent
contractor's coverage and personal injury coverage against
any and all claims arising out of or connected with the
possession, use,, leasing, operation or condition of such
insurable properties, in an amount not less than
$100,000,000 combined single limit coverage for personal
injury and property damage with respect to any one
occurrence, which may be under an umbrella policy. Anything
contained in this clause (iii) to the contrary
notwithstanding, the Superior Instrument Requirements with
respect to the kinds and amount of insurance described in
this clause (iii) shall be satisfied by Mortgagor;
(47)
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(iv) workers' compensation insurance to the extent
required by law;
(v) business interruption insurance covering not less
than 6 months of loss, provided that, at any time that
Mortgagor is renewing any policy for such insurance or
taking out any new or replacement policy for such insurance
covering a period of less than 12 months, Mortgagor shall
deliver to Mortgagee an Officers' Certificate certifying
that the period of coverage to be maintained by Mortgagor
under such policy is the maximum that can be maintained at
rates determined by Mortgagor to be reasonable for such
coverage;
(vi) to the extent available, flood insurance in an
amount not less than the Insurance Amount, or, if such
insurance cannot be obtained in an amount not less than the
Insurance Amount, such lesser amount as may then be so
obtainable but in no event less than $100,000,000; and
(vii) such other insurance with respect to such
insurable properties against loss or damage of the kinds (A)
from time to time customarily insured against by persons
owning or using first-class casino and hotel complexes in
Atlantic City, New Jersey and (B) required to be maintained
pursuant to any Superior Instrument Requirements.
Notwithstanding the foregoing, to the extent not violative
of any Superior Instrument Requirements, (A) Mortgagor may
maintain a deductible with respect to the insurance policies
described in clauses (i), (ii), (vi) and (vii) in an amount not
to exceed $250,000, (B) Mortgagor may maintain a deductible with
respect to the insurance policies described in clause (iii) in an
amount not to exceed $500,000, and (C) Mortgagor may maintain a
deductible with respect to the insurance policies described in
clause (v) in an amount not to exceed $1,000,000.
(b) (i) Each policy of insurance maintained by Mortgagor
pursuant to Section 5.10(a) shall, (A) except in the case of
workers' compensation insurance, name Mortgagor as an insured and
shall name as additional insurers (1) Mortgagee and (2) to the
extent required by the Superior Instrument Requirements, the
lessors under any Facility Leases and the holders of the Superior
Mortgages, (B) provide that all insurance proceeds for losses,
except in the case of comprehensive general liability insurance
and workers' compensation insurance or as otherwise provided in
Subsections (d), (e) and (f) of this Section 5.10, be payable
solely to Mortgagee (or if such insurance proceeds are for losses
sustained solely to property covered by a Superior Mortgage, such
other party as is required to receive such proceeds under a
Superior Mortgage), (C) include effective waivers (whether under
the terms of any such policy or otherwise) by the insurer of all
(48)
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claims for insurance premiums against all loss payees and named
insurers (other than Mortgagor) and all rights of subrogation
against any named insured, (D) except in the case of
comprehensive general liability and workers' compensation
insurance, provide that any losses shall be payable
notwithstanding (1) any act, failure to act, negligence of, or
violation or breach of warranties, declarations or conditions
contained in such policy by Mortgagor or Mortgagee or any other
named insured or loss payee (including, without limitation, (x)
the lessors under the Facility Leases with respect to any Leased
Facilities and (y) the holder of any Superior Mortgage with
respect to the property encumbered thereby), (2) the occupation
or use of the insurable properties for purposes more hazardous
than permitted by the terms of the policy, (3) any foreclosure or
other proceeding or notice of sale relating to the insurable
properties or (4) any change in the title to or ownership or
possession of the insurable properties, (E) contain a
non-contributory mortgagee clause in favor of Mortgagee, and (F)
provide that if all or any part of such policy is cancelled,
terminated or expires, the insurer will forthwith give notice
thereof to each named insured and loss payee and that no
cancellation, non-renewal, reduction in amount or material change
in coverage thereof shall be effective until at least 30 days
after receipt by each named insured and loss payee of written
notice thereof.
(ii) Mortgagor may effect the insurance required under this
Section 5.10 under blanket and/or umbrella policies covering
properties owned or leased by Affiliates of Mortgagor; provided,
that (A) such policies otherwise comply with this Senior
Guarantee Mortgage, (B) except with respect to flood insurance
and earthquake insurance, provide that the amount of coverage
afforded thereunder with respect to the Trust Estate shall not be
reduced by claims thereunder against such other properties and
(C) in the case of flood insurance provide that the amount of
coverage afforded thereunder with respect to the Trust Estate
shall not be reduced below $100,000,000 by reason of claims
thereunder against such other properties.
(c) Mortgagor shall deliver to Mortgagee duplicate
originals of all insurance policies that Mortgagor is required to
maintain pursuant to this Section 5.10. Mortgagee shall not be
responsible for effecting or renewing any insurance or for the
responsibility or solvency of the insurers.
(d) Mortgagor shall give written notice to Mortgagee
immediately upon obtaining knowledge of any Casualty which (i)
results in damage, loss or destruction in an amount in excess of
$5,000,000 to any buildings or improvements on the Premises
and/or any Tangible Personal Property or (ii) pursuant to any
Superior Instrument Requirement, would require the deposit of
insurance proceeds with the Depositary, or action or proceeding
(49)
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with respect thereto. Whenever the Superior Instrument
Requirements require or permit the selection of the Depositary by
Mortgagor, Mortgagor shall select the Insurance Trustee as the
Depositary. Within 30 days after any Casualty which results in
any damage, loss or destruction in an amount in excess of
$10,000,000 to any buildings or improvements on the Premises
and/or any Tangible Personal Property, Mortgagor shall deliver to
Mortgagee a certificate of an Architect stating whether, in such
Architect's opinion, applicable Legal Requirements permit the
Restoration of said buildings and improvements for the same uses
and to the same size and quality in all material respects, as
existed immediately prior to the Casualty (and if said
certificate states that Legal Requirements do not permit such
Restoration, said certificate shall describe the manner closest
approximating such criteria to which the buildings and
improvements could be so restored and shall be accompanied by a
Certificate Of Appraised Value dated not more than 10 days prior
to delivery setting forth the Appraised Value immediately prior
to the Casualty and the estimated Appraised Value immediately
after the Restoration). If Mortgagor is required to deliver such
Certificates of Appraised Value and if based on such Certificates
of Appraised Value immediately after Restoration, (i) the
aggregate Outstanding Amount of Indebtedness of the Mortgagor
immediately after such Restoration shall exceed the greater of
(A) 80% of the Appraised Value immediately after such Restoration
or (B) the quotient of the Outstanding Amount of Indebtedness of
the Mortgagor immediately prior to such Casualty divided by the
Appraised Value immediately prior to the Casualty multiplied by
the Appraised Value immediately after such Restoration, or (ii)
applicable Legal Requirements do not permit the Restoration of
the Casino Hotel for use as a casino and hotel complex, then, in
either of such events, the proceeds of any insurance shall not be
applied to Restoration but shall instead be paid and delivered to
Mortgagee to the extent of the then Outstanding Amount of the
Senior Partnership Note and any other interest or other sums due
hereunder or thereunder to be applied to the satisfaction of this
Senior Guarantee Mortgage to the extent proceeds are available
for such purpose and provided that no additional sums are due to
the Trustee or the Holders under the Senior Notes or the Senior
Note Indenture, the balance of any net insurance proceeds shall
be paid to Mortgagor.
(e) Subject to the provisions of Subsection 5.10(d), if a
Casualty occurs, the following shall apply:
(i) If the cost of Restoration is less than
$10,000,000, the net insurance proceeds shall be paid by
Mortgagee to Mortgagor (unless the Superior Instrument
Requirements provide that the same shall be paid to the
Depositary).
(50)
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(ii) If the cost of Restoration is $10,000,000 or more
or if the Superior Instrument Requirements provide that the
same shall be paid to the Depositary, the net insurance
proceeds shall be paid by Mortgagee to the Insurance Trustee
(or other Depositary required by the Superior Instrument
Requirements, provided that such Depositary holds such
proceeds in trust for purposes of paying the costs of
Restoration).
(iii) Mortgagor shall commence with reasonable
promptness under the circumstances and thereafter with due
diligence proceed to perform and complete in a good and
workmanlike manner the restoration, repair, replacement or
rebuilding of the damage or destruction resulting from the
Casualty (all such restoration, repair, replacement and
rebuilding following a Casualty or a Taking are referred to
as "Restoration") in accordance with the plans and
specifications submitted to the Insurance Trustee, in
conformance with all Legal Requirements and Superior
Instrument Requirements, and in accordance with the further
provisions of this Subsection (e), regardless of the extent
of any such Casualty and whether or not net insurance
proceeds, if any, shall be available or, if available, shall
be sufficient, for the purpose of the Restoration. All
Restoration work shall be performed in accordance with the
applicable provisions of Section 5.12 and in conformance
with all Superior Instrument Requirements, Legal
Requirements and Insurance Requirements and, prior to
commencing any Restoration, Mortgagor shall obtain all
Permits necessary in connection therewith, and shall obtain,
and keep in full force and effect until the completion of
such Restoration, such additional insurance as the Insurance
Trustee and Superior Instrument Requirements may require.
The plans and specifications for the Restoration shall be
accompanied by a Mortgagor's Certificate and an Opinion of
Counsel to the effect that upon the completion of the
Restoration pursuant to the plans and specifications, the
Premises and all buildings and improvements thereon will
comply with all Superior Instrument Requirements, Legal
Requirements and Insurance Requirements.
(iv) Any insurance proceeds which Mortgagor receives
shall be held by Mortgagor in trust for the purpose of
paying the cost of the Restoration, except as otherwise
provided herein.
(v) Any net insurance proceeds that the Insurance
Trustee holds pursuant to this Subsection (e), shall be
deposited in an interest-bearing investment reasonably
designated by Mortgagor (to the extent Mortgagor is
permitted to designate such investment under the Superior
Instrument Requirements) (and the interest thereon shall be
(51)
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added to such proceeds) and shall be paid by the Insurance
Trustee to reimburse Mortgagor for, or to make payment for, the
Restoration, after the Insurance Trustee deducts therefrom the
amount of any reasonable costs and expenses incurred in
connection with the performance of its obligations under this
Section 5.10. The Insurance Trustee shall make such payments not
more frequently than once every 30 days upon the written request
of Mortgagor (unless more frequent payments are required by
Superior Instrument Requirements), by paying to Mortgagor or the
persons named in the certificate described in clause (vi) of this
Subsection (e) the respective amounts stated in such certificate
from time to time as the Restoration progresses, provided
Mortgagor has complied with the requirements of this Subsection
(e) and such payment is permitted by any applicable Superior
Instrument Requirements. Mortgagor's request shall be
accompanied by (A) the certificate described in clause (vi) of
this Subsection (e) and (B) a title company or official search,
or other evidence reasonably acceptable to the Insurance Trustee,
showing that there have not been filed with respect to the
Premises, any vendor's, contractor's, mechanic's, laborer's or
materialman's statutory or similar lien which has not been
discharged of record (or bonded against or secured by other
security) or any other encumbrance irrespective of its priority
(other than Permitted Encumbrances).
(vi) The certificate required by clause (v) of this
Subsection (e) shall (A) be a Mortgagor's Certificate,
countersigned by the Architect in charge of the Restoration
with respect to the matters described in (1) and (5) below,
(B) be dated not more than 10 days prior to such request and
(C) set forth (in addition to any other requirements
contained in any applicable Superior Instrument
Requirements) that:
(1) all of the Restoration theretofore performed
is in substantial compliance with the plans and
specifications theretofore submitted to the Insurance
Trustee and in compliance with all Superior Instrument
Requirements, Legal Requirements and Insurance
Requirements;
(2) the sum then requested either has been paid
by Mortgagor or is justly due to contractors,
subcontractors, materialmen, engineers, architects or
other persons who have rendered services or furnished
or contracted to deliver materials for the Restoration
therein specified, and the names and addresses of such
persons, a brief description of such services and
materials and the several amounts so paid or due to
each of said persons in respect thereof;
(52)
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(3) no part of the amount requested has been or
is the basis in any previous or then pending request
for the withdrawal of net insurance proceeds, and that
the sum then requested does not exceed the value of the
services and materials described in the certificate;
(4) except for the amount, if any, stated
pursuant to subclause (2) of this clause (vi) in such
certificate to be due for services or materials, and
except for amounts in dispute and/or customary
retainages, there is no outstanding indebtedness known
to the person signing such certificate, after due
inquiry, which is then due for labor, wages, materials,
supplies or services in connection with such
Restoration; and
(5) the remaining cost, as estimated by the
persons signing such certificate, of the Restoration in
order to complete the same does not exceed the net
insurance proceeds remaining in the hands of Insurance
Trustee after payment of the sum requested in such
certificate or if such estimated cost does exceed such
insurance proceeds such certificate shall state the
amount of any such deficiency. If the certificate
states that such deficiency will exist, Mortgagor shall
deliver the amount of such deficiency in cash or cash
equivalent to the Insurance Trustee simultaneously with
the delivery of such certificate, which amount shall be
deemed insurance proceeds for purposes of this Section
5.10(e).
(vii) If net insurance proceeds shall be insufficient
to pay the entire cost of the Restoration, then, after
completion of the Restoration, Mortgagor shall pay the
deficiency. If all or any part of the net insurance
proceeds are not used for the Restoration in accordance with
this Subsection (e) (because such proceeds exceed the amount
required to complete the Restoration), then upon completion
of the Restoration in accordance with this Subsection (e),
such amount not so used, if held by the Insurance Trustee,
shall be paid to Mortgagor (if permitted by Superior
Instrument Requirements).
(f) Mortgagor shall not take out separate insurance,
concurrent in form or contributing in the event of loss with that
required to be maintained pursuant to this Section 5.10, unless
the same is permitted by Superior Instrument Requirements.
Mortgagor shall immediately notify Mortgagee whenever any such
separate insurance is taken out and shall promptly deliver to
Mortgagee a duplicate original of the policy of such insurance, a
copy thereof certified by the insurer or a certificate thereof.
(53)
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Provided that no Event of Default has occurred and is continuing,
all net business interruption insurance proceeds shall be paid to
Mortgagor, to be segregated from the other funds of Mortgagor and
held in trust by Mortgagor for the following purposes and in the
following order of priority: (i) for the payment of Impositions
and amounts due under the Facility Leases and Superior Mortgage,
(ii) for debt service for the estimated period of Restoration
(for purposes of this Subsection 5.10(f), interest and principal
payments due on any payment date under the Senior Partnership
Note will be deemed to accrue in equal daily installments
beginning the day after the immediately preceding payment date
and ending on such payment date), and (iii) for any other expense
incurred in connection with the operation or business of the
Casino Hotel.
(g) Insurance claims by reason of damage or destruction to
any portion of the Trust Estate may be adjusted by Mortgagor, but
Mortgagee shall have the right (but not the obligation) to join
Mortgagor in adjusting, and approving the adjustment of, any such
loss except in the event of a loss where the amount of insurance
reasonably anticipated to be received with respect to such loss
is less than $5,000,000, and Mortgagor shall assist Mortgagee in
any such adjustment at the request of Mortgagee. If Mortgagee at
its election as aforesaid joins Mortgagor in any adjustment
process, then Mortgagee's approval of the adjustment shall not be
unreasonably withheld.
(h) Notwithstanding anything contained herein to the
contrary, if an Event of Default shall have occurred and be
continuing, Mortgagee may, at its option, (A) refrain from paying
to Mortgagor or the Insurance Trustee any net insurance proceeds
or (B) instruct the Insurance Trustee to pay to Mortgagee any
insurance proceeds then held by the Insurance Trustee, as the
case may be.
Section 5.11. Limitations on Building Demolition,
Alterations, Improvements and New Construction.
Mortgagor shall not authorize, permit or make any
demolition, alteration or improvement of any building, structure
or other improvements included in the Trust Estate or any new
construction on any part of the Trust Estate, except in
conformity with and subject to the limitations hereinafter in
this Section 5.11 set forth and set forth in the Senior Note
Indenture.
Unless an Event of Default shall have occurred and be
continuing, Mortgagor shall have the right at all times to make
or permit such demolition, alterations, improvements or new
construction, structural or otherwise (herein sometimes called
collectively "Alterations" and each, individually, an
(54)
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"Alteration"), of the Trust Estate, to be made in all cases
subject to each of the following conditions:
(a) No Alteration shall be undertaken or carried out except
in conformity with all Superior Instrument Requirements, Legal
Requirements and Insurance Requirements.
(b) If the estimated cost of any Alteration, together with
other Alterations that constitute a single construction plan or
project (whether or not accomplished in several stages or
procedures), exceeds $5,000,000, the building or buildings,
structures or other improvements as so improved or altered, upon
the completion of the work, shall be of a value not less than the
value of such building or buildings, structures or other
improvements immediately prior to the making of such Alteration.
(c) Any Alteration which is structural in nature or
involves an estimated cost of more than $5,000,000 shall be
conducted under the supervision of an Architect, and no such
Alteration shall be undertaken until 10 days after there shall
have been filed with Mortgagee detailed plans and specifications
and cost estimates therefor, prepared and approved in writing by
such Architect and accompanied by a certificate of such Architect
stating that such plans and specifications conform to all
applicable provisions of this Section 5.11.
(d) No Alteration involving an estimated cost of more than
$5,000,000 shall be undertaken until Mortgagor has furnished to
Mortgagee, at Mortgagor's sole cost and expense, a surety bond or
bonds, covering performance, and labor and material payments with
respect to the work to be so performed, naming Mortgagee as
obligee, issued by a responsible surety company, authorized to do
business in the State of New Jersey, in a form generally and
customarily used by such surety in an amount equal to the
estimated cost of construction of the work covered by the plans
and specifications therefor, guaranteeing the performance and
completion of such construction, substantially in conformity with
the said plans and specifications and within a reasonable time,
subject to delays by fire, strikes, lock-out, acts of God,
inability to obtain labor or materials, governmental
restrictions, enemy action, civil commotion or unavoidable
Casualty or other similar causes beyond the control of Mortgagor,
free and clear of all liens, claims and liabilities for the cost
of such Alterations. If such surety bond or bonds shall be
unobtainable Mortgagor shall deliver to Mortgagee security by
cash, letter of credit or other guarantee, affording
substantially the same protection as would such bond or bonds.
(e) All work done in connection with any Alterations shall
be done promptly and in good and workmanlike manner. The work in
connection with any Alteration shall be prosecuted with
reasonable dispatch, delays due to fire, strikes, lock-outs, acts
(55)
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of God, inability to obtain labor or materials, governmental
restrictions, enemy action, civil commotion or unavoidable
Casualty or similar causes beyond the control of Mortgagor
excepted.
(f) If the estimated cost of Alterations exceeds
$5,000,000, Mortgagor shall have delivered to Mortgagee (i) prior
to the commencement of such Alterations, copies of all Permits
required for the commencement of such work together with a
certificate of the Architect or an Opinion of Counsel to the
effect that all Permits required for the commencement of such
Alterations have been obtained; and (ii) within a reasonable
period of time after the completion of the Alterations, copies of
all Permits required in connection with the completion thereof,
together with either an Opinion of Counsel or a certificate of
the Architect that all such Permits have been so obtained by
Mortgagor and that Mortgagor has complied with all the
requirements of this Section 5.11.
(g) No Alterations of any kind shall be made which shall
change the use or reduce the size or quality of any building,
structure or other improvements in any material respect or which
shall change the use of the Casino Hotel from its use as a gaming
and hotel facility.
(h) No Alterations costing in excess of $5,000,000,
together with other Alterations that constitute a single
construction plan or project (whether or not accomplished in
several stages or procedures), shall be made if such Alterations
are not expected to be completed at least 120 days prior to the
Stated Maturity of the Senior Partnership Note (except if such
Alterations are required in order to comply with Legal
Requirements or Superior Instrument Requirements).
(i) Mortgagor shall maintain at all times during the
performance of Alterations, in addition to any insurance required
to be maintained under Section 5.11 hereof, appropriate workers'
compensation insurance covering all persons employed for such
Alterations to the extent required by applicable law, and
comprehensive general liability insurance expressly covering the
additional hazards due to such Alterations. Each such policy of
insurance shall comply with the provisions of Section 5.10(b),
and Mortgagor shall comply with Subsections (c), (d), (e), (f),
(g) and (h) of Section 5.10 in connection with all such
insurance.
Section 5.12. Leases.
Mortgagor shall not:
(a) lease the Trust Estate substantially as an entirety to
any Person (except in accordance with the provisions of Article
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Eight of the Senior Note Indenture), nor shall Mortgagor lease
either the Casino Hotel or the Casino or the Hotel or any parking
facilities substantially as an entirety to any Person;
(b) enter into any Lease, or renew, modify, extend,
terminate, or amend any Lease, except in the ordinary course of
business of operating the Casino Hotel;
(c) receive or collect, or permit the receipt or collection
of, any rental payments under any Lease more than one month in
advance of the respective periods in respect of which they are to
accrue, except that, in connection with the execution and
delivery of any Lease or of any amendment to any Lease, rental
payments thereunder may be collected and received in advance in
an amount not in excess of three months' rent and/or a security
deposit may be required thereunder in an amount not exceeding one
year's rent;
(d) collaterally assign, transfer or hypothecate (other
than to Mortgagee hereunder, to the holder of the Senior Note
Mortgage, or to the holder of the Superior Mortgage, but in each
case only with respect to the property secured by such mortgage)
(i) any rental payment under any Lease whether then due or to
accrue in the future, (ii) the interest of Mortgagor as landlord
under any Lease or (iii) the rents, issues or profits of the
Trust Estate;
(e) after the date hereof, enter into any Lease, or renew
any Lease, unless such Lease contains terms to the effect as
follows:
(i) the Lease and the rights of the tenants thereunder
shall be subject and subordinate to the rights of Mortgagee
under this Senior Guarantee Mortgage and the holders of the
Superior Mortgage,
(ii) the Lease may be assigned by the landlord
thereunder to Mortgagee, and
(iii) the rights and remedies of the tenant in respect
of any obligations of the landlord thereunder shall be
nonrecourse as to any assets of the landlord other than its
equity in the building in which the leased premises are
located or the proceeds thereof; or
(f) modify any Lease with respect to the matters described
in clauses (i) through (iii) of paragraph (e).
If Mortgagor enters into a Lease (other than with an
Affiliate of Mortgagor) for a term of not less than 3 years,
Mortgagee shall deliver a non-disturbance and attornment
agreement substantially in the form of Schedule 7 hereto,
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following receipt of a certificate of a leasing broker (who is
not an Affiliate of Mortgagor or the broker involved in such
transaction) experienced with respect to leases of commercial
space in the Atlantic City area stating that the rent under the
Lease throughout the term thereof is not less than fair market
rent and the other terms of the Lease are fair and reasonable in
the commercial leasing market. Mortgagor shall, upon demand,
reimburse Mortgagee for any costs and expenses (including
reasonable attorneys' fees and disbursements) incurred by
Mortgagee in connection with the preparation, review and delivery
of such non-disturbance and attornment agreements.
Promptly after the execution and delivery hereof, Mortgagor
shall cause the lessee under each Lease now in effect, and
promptly after each Lease is executed or becomes effective after
the date of the execution and delivery hereof, Mortgagor shall
cause the lessee under each such Lease, to be duly notified in
writing (unless the substance and effect of such notice shall be
contained in such Lease) of the subjection of the owner's
interest, as lessor, in and to such Lease to the lien of this
Senior Guarantee Mortgage and of the name and address of
Mortgagee. Each such notice shall state that the lease of such
lessee is a Lease as herein defined. If a new Mortgagee is at
any time appointed hereunder or the address of Mortgagee shall at
any time be changed, Mortgagor shall cause each lessee under each
Lease to be promptly notified in writing of the name and address
of such new Mortgagee or the new address of Mortgagee. Mortgagor
shall use reasonable efforts (but shall not be obligated to incur
any expenditure other than de minimis amounts) to obtain from
each lessee under each Lease to whom any notice is sent pursuant
to this paragraph an acknowledgment of receipt of such notice,
and Mortgagor shall promptly deliver to Mortgagee,, upon request,
a copy of each such acknowledgment of receipt which it is able to
obtain. Mortgagee shall not be responsible for securing or
causing Mortgagor to secure any such acknowledgment.
Section 5.13. Compliance Certificates.
Mortgagor shall deliver to Mortgagee, within 120 days after
the end of each fiscal year of Mortgagor, a Mortgagor's
Certificate stating that
(a) a review of the activities of Mortgagor during such
year and of performance under this Senior Guarantee Mortgage has
been made under the signer's supervision, and
(b) to the best of each signer's knowledge, based on such
review, Mortgagor has fulfilled all of Mortgagor's obligations
under this Senior Guarantee Mortgage throughout such year, or, if
there has been a default in the fulfillment of any such
obligation, specifying each such default known to him and the
nature and status thereof.
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Promptly after Mortgagor may reasonably be deemed to have
knowledge of a default hereunder, Mortgagor shall deliver to
Mortgagee a notice specifying the nature and period of existence
thereof and the action Mortgagor is taking and proposes to take
with respect thereto.
Section 5.14. To Keep Books; Inspection by Mortgagee.
Mortgagor will keep proper books of record and account, in
which full and correct entries shall be made of all dealings or
transactions of or in relation to the properties, business and
affairs of Mortgagor in accordance with generally accepted
accounting principles consistently applied. Said books shall be
maintained in an office located either in Atlantic City, New
Jersey or in the Borough of Manhattan, City of New York, State of
New York. Mortgagor shall at any and all times, upon request of
Mortgagee and at the expense of Mortgagor, permit Mortgagee and
its representatives to inspect the Casino Hotel and any other
buildings, structures and improvements now or hereafter located
on the Land and the books of account, records, reports and other
papers of Mortgagor, and to make copies and extracts therefrom,
and will afford and procure a reasonable opportunity to make any
such inspection (provided, that any such inspection shall not
unreasonably interfere with the business operations of
Mortgagor), and Mortgagor will furnish to Mortgagee any and all
information as Mortgagee may reasonably request, with respect to
the performance by Mortgagor of its covenants in this Senior
Guarantee Mortgage.
Section 5.15. Advances by Mortgagee.
If Mortgagor shall fail to perform any of the covenants,
terms, provisions or conditions contained in this Senior
Guarantee Mortgage and such failure shall continue for 10 days
following notice thereof given by Mortgagee (or at any time,
without notice, in case of emergency), Mortgagee may (but is not
obligated to), at any time and from time to time, take any action
or make advances, to effect performance of any such covenant,
term, provision or condition on behalf of Mortgagor; and all
moneys so used, paid or advanced by Mortgagee and all reasonable
costs and expenses incurred by Mortgagee in connection therewith,
together with interest on all of the same at the rate of interest
set forth in the Senior Partnership Note, shall be immediately
due and payable by Mortgagor to Mortgagee and all such moneys,
costs and expenses shall be secured by the lien of this Senior
Guarantee Mortgage prior to the Senior Partnership Note. No such
advance or payment by Mortgagee shall relieve Mortgagor from any
default hereunder or impair any right or remedy of Mortgagee.
Section 5.16. Waiver of Stay, Extension or Usury Laws.
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Mortgagor covenants (to the extent that it may lawfully do
so) that it will not at any time insist upon, or plead, or in any
manner whatsoever claim or take the benefit or advantage of, any
usury, stay or extension law or any other law which would
prohibit or forgive Mortgagor from paying all or any portion of
the obligations secured by this Senior Guarantee Mortgage,
wherever enacted, now or at any time hereafter in force, or which
may otherwise affect the covenants or the performance of this
Senior Guarantee Mortgage; and Mortgagor (to the extent that it
may lawfully do so) hereby expressly waives all benefit or
advantage of any such law, and covenants that it shall not
hinder, delay or impede the execution of any power herein granted
to Mortgagee, but shall suffer and permit the execution of every
such power as though no such law had been enacted.
Section 5.17. Eminent Domain.
(a) Mortgagor shall notify Mortgagee immediately upon
obtaining knowledge of any Taking affecting the Trust Estate or
any part thereof. If the Taking is a Taking of less than the
whole or substantially all of the Premises but (i) is estimated
to result in an award of more than $10,000,000 or (ii) the Taking
will interfere with or adversely affect the operation of the
Casino Hotel (other than any portion thereof consisting solely of
unimproved, paved or unpaved surface parking) other than to a de
minimis extent, then within 30 days after such Taking, Mortgagor
shall deliver to Mortgagee a certificate of an Architect stating
whether, in such Architect's opinion, applicable Legal
Requirements permit the Restoration of any buildings and
improvements for the same uses and to the same size and quality
in all material respects as existed immediately prior to the
Taking (and if said certificate states that Legal Requirements do
not permit such Restoration, said certificate shall describe the
manner closest approximating such criteria to which the buildings
and improvements could be so restored and shall be accompanied by
a Certificate of Appraised Value dated not more than 10 days
prior to delivery setting forth the Appraised Value immediately
prior to the Taking and the estimated Appraised Value immediately
after the permitted Restoration). If Mortgagor is required to
deliver such Certificate of Appraised value and if based on such
Certificate of Appraised Value immediately after Restoration, (i)
the Outstanding Amount of Indebtedness of the Partnership
immediately after such Restoration shall exceed the greater of
(A) 80% of the Appraised Value immediately after such Restoration
or (B) the quotient of the Outstanding Amount of Indebtedness of
the Partnership immediately prior to such Taking divided by the
Appraised Value immediately prior to the Taking multiplied by the
Appraised Value immediately after such Restoration, or (ii)
applicable Legal Requirements do not permit the Restoration of
the Casino Hotel for use as a casino and hotel complex, then, in
any of such events, the Taking shall be deemed a Taking of "the
whole or substantially all of the Premises." The Taking shall be
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deemed a Taking of "less than the whole or substantially all of
the Premises" if Mortgagor is not required to deliver a
Certificate Of Appraised Value or if, at the time of delivery of
such Certificate, neither of the tests set forth in clauses (i)
and (ii) is met.
(b) If at any time there shall occur a Taking of less than
the whole or substantially all of the Premises and the award or
awards resulting therefrom payable to Mortgagor (and not to any
lessor under any Facility Lease or the holder of any Superior
Mortgage) (after there shall have been first deducted the fees
and expenses incurred in connection with the termination,
settlement and collection of such award or awards, including,
without limitation, reasonable counsel fees and expenses,
hereinafter referred to as "Settlement Costs") (i) shall be less
than $10,000,000 (except to the extent that the Insurance Trustee
or a Depositary is required to hold such amount pursuant to a
Superior Instrument Requirement), the entire amount of such award
shall be paid to Mortgagor; and (ii) if such award is $10,000,000
or more, the entire amount of such award shall be paid to the
Insurance Trustee (or other Depositary required by a Superior
Mortgage, provided that such Depositary holds such award in trust
for purposes of paying the cost of Restoration). In either
event, such awards shall be applied to the cost of Restoration of
the Trust Estate as nearly as practicable to their uses, value
and condition immediately prior to the Taking (except to the
extent otherwise provided by Superior Instrument Requirements).
Mortgagor shall promptly commence and with due diligence perform
the Restoration in accordance with clauses (iii), (iv) and (vii)
of Subsection 5.10(e) (after substituting the words "Taking" for
"Casualty" and "award" for "net insurance proceeds"), at no cost
to Mortgagee. All claims or suits arising out of any Taking may
be settled by Mortgagor, except that Mortgagee shall have the
right (but not the obligation) to participate in such claim or
suit, and to approve settlement thereof (and notwithstanding
anything in the Facility Leases to the contrary, Mortgagor shall
not agree to any settlement or compromise of the amount of any
such claim or suit, except a claim or suit where the amount
reasonably anticipated to be received by Mortgagor is less than
$5,000,000). If Mortgagee at its election as aforesaid joins
such claim or suit, Mortgagee's approval of such settlement shall
not be unreasonably withheld. The Insurance Trustee shall
promptly pay such sums as are received by it from such Taking
from time to time in accordance with the procedures set forth in
clauses (v) and (vi) of Subsection 5.10(e) (after substituting
the words "Taking" for "Casualty" and "award" for "net insurance
proceeds").
(c) If at any time there shall occur a Taking of the whole
or substantially all of the Premises, then the award payable to
Mortgagor shall not be applied to Restoration but shall instead
be paid and delivered to the Trustee (subject to the rights of
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the lessors under any Facility Leases and the holders of any
Superior Mortgages) to the extent of the then Outstanding Amount
of the Senior Partnership Note and any other interest or other
sums due hereunder or thereunder to be applied to the
satisfaction of this Senior Guarantee Mortgage to the extent
proceeds are available for such purpose and provided that no
additional sums are due the Trustee or the Holders under the
Mortgage Senior Partnership Notes or the Senior Note Indenture,
the balance of any award shall be paid to Mortgagor.
(d) Notwithstanding anything contained herein to the
contrary, if an Event of Default shall have occurred and is
continuing, Mortgagee may, at its option, (i) refrain from paying
to Mortgagor or the Insurance Trustee any award or (ii) instruct
the Insurance Trustee to pay to Mortgagee any award then held by
the Insurance Trustee, as the case may be.
Section 5.18. Facility Leases.
(a) Mortgagor shall do or cause to be done all things
necessary to preserve and keep unimpaired the rights of
Mortgagor, as lessee under all Facility Leases, and, to prevent
any termination, surrender, cancellation, forfeiture or
impairment of any thereof. Mortgagor shall at all times fully
perform and comply with all agreements, covenants, terms and
conditions imposed upon or assumed by it as lessee under each of
the Facility Leases (including, without limitation, the covenant
to pay rent and all taxes, assessments and other charges
mentioned therein) prior to the expiration of any notice and/or
cure period provided in each such Facility Lease. Upon receipt
by Mortgagee from a Lessor of any written notice of default by
the lessee thereunder, Mortgagee may rely thereon and take any
action Mortgagee deems necessary in its sole discretion to
prevent or to cure any default by Mortgagor in the performance of
or compliance with any of the agreements, covenants, terms or
conditions imposed upon or assumed by Mortgagor as lessee under
such Facility Lease, even though the existence of such default or
the nature thereof be questioned or denied by Mortgagor or by any
party on behalf of Mortgagor. Without limiting the generality of
Section 3.9, Mortgagor hereby expressly grants to Mortgagee, and
agrees that Mortgagee shall have, the absolute and immediate
right to enter in and upon the Premises or any part thereof to
such extent and as often as Mortgagee, in its sole discretion,
deems necessary or desirable for the purpose permitted by the
immediately preceding sentence, subject only to applicable Legal
Requirements. Without limiting Mortgagor's obligations or
Mortgagee's rights set forth above or limiting Mortgagee's other
remedies under this Senior Guarantee Mortgage, Mortgagee may pay
and expend such sums of money as Mortgagee in its sole discretion
deems necessary for any such purpose, and Mortgagor hereby agrees
to pay to Mortgagee immediately and without demand, all such sums
referred to above, so paid and expended by Mortgagee, together
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with interest thereon from the date of each such payment at the
highest rate of interest set forth in the Senior Partnership
Note. All sums so paid and expended by Mortgagee, and the
interest thereon, shall be added to and be secured by the lien of
this Senior Guarantee Mortgage.
(b) Mortgagor further covenants and agrees as follows:
(i) Mortgagor shall not surrender, terminate or cancel
any Facility Lease, and shall not without the consent of
Mortgagee modify, change, supplement, alter or amend any
Facility Lease either orally or in writing if an impairment
of the security granted under this Senior Guarantee Mortgage
would result therefrom. As further security for the
repayment of the indebtedness secured hereby and for the
performance of the covenants herein and in each Facility
Lease contained, Mortgagor hereby assigns to Mortgagee all
of Mortgagor's rights, privileges and prerogatives as lessee
under each Facility Lease to terminate, cancel, modify,
change, supplement, alter or amend such Facility Lease and
any such termination, cancellation, modification, change,
supplement, alteration or amendment of a Facility Lease
without the prior consent thereto by Mortgagee shall be void
and of no force and effect. Unless (1) an Event of Default
has occurred and is continuing and (2) either (A) there has
been an acceleration of maturity of the Senior Partnership
Note pursuant to Section 3.2 or (B) Mortgagee exercises its
rights under Section 3.9, Mortgagee shall have no right to
terminate, cancel, modify, change, supplement, alter or
amend any Facility Lease.
(ii) Solely for the benefit of Mortgagee, Trustee, the
Holders and no other person, no release or forbearance of
any of Mortgagor's obligations under any Facility Lease,
pursuant to such Facility Lease or otherwise, shall release
Mortgagor from any of Mortgagor's other obligations under
this Senior Guarantee Mortgage.
(iii) Unless Mortgagee shall otherwise expressly
consent in writing, the fee title to the Leased Facilities
and Mortgagor's leasehold estates therein shall not merge
and shall always remain separate and distinct,
notwithstanding the union of said estates either in the
Lessor or in the lessee, or in a third party by purchase or
otherwise
(iv) Mortgagor shall promptly notify Mortgagee in
writing of any request made by Mortgagor, as lessee under
any Facility Lease, or any of the Lessors, for arbitration
proceedings under any Facility Lease and of the institution
of any arbitration proceedings, as well as all proceedings
thereunder. Mortgagor shall promptly deliver to Mortgagee a
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copy of the determination of the arbitrators in each such
arbitration proceeding. Mortgagee shall have the right to
participate in such arbitration proceedings in association with
Mortgagor or on its own behalf as an interested party.
(v) Mortgagor shall not consent to the subordination
of any Facility Lease to any mortgage, deed of trust or
other lien on the fee interest of the Lessor.
(vi) If Mortgagor acquires fee simple title or any
other estate, title or interest in any Leased Facility,
Mortgagor shall promptly notify Mortgagee of such
acquisition and, on request by Mortgagee, shall cause to be
executed and recorded all such other and further assurances
or other instruments in writing as may in the opinion of
Mortgagee be required or desirable to carry out the intent
and meaning of clause (x) of Granting Clause Third.
(vii) Within 5 days after Mortgagor's receipt of any
notice of any motion, application or effort to reject any
Facility Lease by any Lessor or any trustee arising from or
in connection with any case, proceeding or other action
commenced or pending by or against any Lessor under the Code
or any comparable provision contained in any present or
future federal, state, local, foreign or other statute, law,
rule or regulation ("Comparable Provision"), Mortgagor shall
give notice thereof to Mortgagee. Mortgagor hereby (A)
assigns to Mortgagee any and all of Mortgagor's rights as
lessee under Section 365(h) of the Code or any Comparable
Provision and (B) covenants that it shall not elect to treat
any Facility Lease as terminated pursuant to Section 365(h)
of the Code or any Comparable Provision without the prior
consent of Mortgagee and (C) agrees that any such election
by Mortgagor without such consent shall be null and void.
(viii) Without limiting the generality of the
foregoing, to the extent permitted by applicable law,
Mortgagor hereby unconditionally assigns, transfers and sets
over to Mortgagee all of Mortgagor's claims and rights to
the payment of damages arising from any rejection by Lessor
of any Facility Lease under the Code or any Comparable
Provision. Mortgagee shall have the right to proceed in its
own name or in the name of Mortgagor in respect of any
claim, suit, action or proceeding relating to the rejection
of any Facility Lease, including, without limitation, the
right to file and prosecute, in cooperation with Mortgagor,
any proofs of claim, complaints, motions, applications,
notices and other documents, in any case in respect of
Lessor under the Code or any Comparable Provision. This
assignment constitutes a present, irrevocable and
unconditional assignment of the foregoing claims, rights and
remedies, and shall continue in effect until all of the
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indebtedness and obligations secured by this Senior Guarantee
Mortgage shall have been satisfied and discharged in full. Any
amounts received by Mortgagee in damages arising out of the
rejection of any Facility Lease as aforesaid shall be applied
first to all reasonable costs and expenses of Mortgagee
(including, without limitation, reasonable attorneys' fees,
disbursements and court costs) incurred in connection with the
exercise of any of its rights or remedies under this Section
5.18, and thereafter as provided in Section 3.3.
(ix) If there shall be filed by or against Mortgagor a
petition under the Code or any Comparable Provision and
Mortgagor, as lessee under any Facility Lease, shall
determine to reject such Facility Lease, Mortgagor shall
give Mortgagee not less than 10 days' prior notice of the
date on which Mortgagor shall apply to the Bankruptcy Court
or other judicial body with appropriate jurisdiction for
authority to reject such Facility Lease. Mortgagee shall
have the right, but not the obligation, to serve upon
Mortgagor within such 10-day period a notice stating that
(a) Mortgagee demands that Mortgagor assume and assign such
Facility Lease to Mortgagee pursuant to Section 365 of the
Code or any Comparable Provision and (b) Mortgagee covenants
to cure or provide adequate assurance of prompt cure of all
defaults and provide adequate assurance of future
performance under such Facility Lease. If Mortgagee serves
upon Mortgagor the notice described in the preceding
sentence, Mortgagor shall not seek to reject such Facility
Lease and shall comply with the demand provided for in
clause (a) of the preceding sentence within 30 days after
the notice shall have been given subject to the performance
by Mortgagee of the covenant provided for in clause (b) of
the preceding sentence. The foregoing provisions of this
Section 5.18(ix) shall not apply to the extent not permitted
by applicable law. Effective upon the entry of an order for
relief in respect of Mortgagor under Chapter 7 of the Code
or any Comparable Provision, Mortgagor hereby assigns and
transfers to Mortgagee a non-exclusive right to apply to the
Bankruptcy Court or other judicial body with appropriate
jurisdiction for an order extending the period during which
such Facility Lease may be rejected or assumed.
(x) Mortgagor shall promptly give to Mortgagee copies
of (A) all notices of default and (B) any other
communications or notices with respect to events that relate
to the possible impairment of the security of this Senior
Guarantee Mortgage, which Mortgagor shall give or receive
under any Facility Lease and shall promptly notify Mortgagee
of any default under any Facility Lease on the part of the
Lessor or Mortgagor.
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(xi) Mortgagor shall enforce with due diligence all of
the obligations of the Lessor under each Facility Lease, to
the end that Mortgagor may enjoy all of the rights and
privileges granted to it under the Facility Leases.
(xii) Mortgagor shall notify Mortgagee within 5 days
after the transfer of a fee interest in any Leased Facility
or any portion thereof to or from an Affiliate.
(xiii) No Affiliate of Mortgagor shall at any time
hereafter acquire fee title to the Leased Land or any
portion thereof unless simultaneously with such acquisition
such Affiliate and Mortgagor execute and exchange (and
deliver to the Trustee an executed counterpart of) an
instrument in form and substance satisfactory to Mortgagee
providing that so long as such Affiliate owns such fee title
(A) such Affiliate shall not terminate the applicable
Facility Lease for any reason whatsoever (including, without
limitation, due to the default of Mortgagor under such
FacilitY Lease) and (B) such Affiliate shall not accept,
and, if tendered by Mortgagor shall promptly return to
Mortgagor, any payment of rent or other charges payable
under such Facility Lease in excess of the amount required
to pay the debt service and other sums payable under any
mortgage affecting such Affiliate's fee interest in the
applicable Leased Facility (and such Affiliate shall use
such funds only to pay its debt service obligations and
other sums payable under such mortgage) at any time that an
Event of Default, or a Default of the types described in
Section 3.1(a), (b) and (f) of this Senior Guarantee
Mortgage or Section 5.1(a), (b), (f) or (g) of the Senior
Note Indenture, shall have occurred and be continuing under
this Senior Guarantee Mortgage or the Senior Note Indenture.
(c) Subject to the provisions of Subsection 5.18(b)(iii),
if both the lessor's and lessee's estates under any Facility
Lease or any portion thereof shall at any time become vested in
one owner, this Senior Guarantee Mortgage and the lien created
hereby shall nevertheless not be destroyed or terminated by
application of the doctrine of merger and, in such event,
Mortgagee shall continue to have all of the rights and privileges
of a first leasehold mortgagee.
(d) Mortgagor hereby acknowledges that if any Facility
Lease shall be terminated prior to the natural expiration of its
term due to default by the lessee thereunder, and if pursuant to
such Facility Lease, Mortgagee or its designee shall acquire from
the Lessor a new lease of the Leased Facility or any portion
thereof, Mortgagor shall have no right, title or interest in or
to such lease or the leasehold estate created thereby, or the
options therein contained.
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(e) Each Facility Lease hereafter entered into or assumed
by Mortgagor as lessee or sublessee shall contain provisions (i)
permitting the assignment of the same to Mortgagee and the
Trustee and permitting assignment without the lessor's consent if
this Senior Guarantee Mortgage is foreclosed; and (ii) providing
protection to Mortgagee, as leasehold mortgagee, in form
reasonably satisfactory to Mortgagee.
Section 5.19. Superior Mortgage.
(a) Mortgagor shall at all times fully perform and comply
with all agreements, covenants, terms and conditions imposed upon
or assumed by it as mortgagor under the Superior Mortgage prior
to the expiration of any notice and/or cure period provided in
each such Superior Mortgage. If a notice of default has been
given by the holder of the Superior Mortgage, Mortgagee may rely
thereon and take any action Mortgagee deems necessary in its sole
discretion to prevent or to cure any default by Mortgagor in the
performance of or compliance with any of the agreements,
covenants, terms or conditions imposed upon or assumed by
Mortgagor as mortgagor under the Superior Mortgage even though
the existence of such default or the nature thereof be questioned
or denied by Mortgagor or by any party on behalf of Mortgagor.
Without limiting the generality of Section 3.9, Mortgagor hereby
expressly grants to Mortgagee, and agrees that Mortgagee shall
have, the absolute and immediate right to enter in and upon the
Premises or any part thereof to such extent and as often as
Mortgagee, in its sole discretion, deems necessary or desirable
for the purpose permitted by the immediately preceding sentence,
subject only to applicable Legal Requirements. Without limiting
Mortgagor's obligations or Mortgagee's rights set forth above or
limiting Mortgagee's other remedies under this Senior Guarantee
Mortgage, Mortgagee may (i) pay and expend such sums of money as
Mortgagee in its sole discretion deems necessary or desirable for
any such purpose and (ii) in its sole discretion prepay the
Superior Mortgage, then in default, and Mortgagor hereby agrees
to pay to Mortgagee immediately and without demand, all such sums
referred to in (i) and (ii) above so paid and expended by
Mortgagee, together with interest thereon from the date of each
such payment at the highest rate of interest set forth in the
Senior Partnership Note. All sums so paid and expended by
Mortgagee and the interest thereon, shall be added to and be
secured by the lien of this Senior Guarantee Mortgage.
(b) Mortgagor further covenants and agrees:
(i) Mortgagor shall not, without first obtaining the
consent of Mortgagee in each instance: (A) modify, replace
or refinance the Superior Mortgage if (x) the collateral
securing the lien thereof would be increased thereby (other
than after-acquired property required by the terms of the
Superior Mortgage to be encumbered thereby), or (y) such
(67)
<PAGE>
modification, replacement or refinancing violates any other
provision of this Senior Guarantee Mortgage or the Senior Note
Indenture or (B) acquire or permit or suffer any Affiliate of
Mortgagor to acquire any Superior Mortgage or any interest
therein;
(ii) Mortgagor shall timely pay and perform all of the
obligations to be paid or performed by the mortgagor under
the Superior Mortgage, the note secured thereby and any
other instrument evidencing or securing the indebtedness
owing to any holder of the Superior Mortgage;
(iii) at any time and from time to time, Mortgagor
shall upon request of Mortgagee promptly use its reasonable
efforts to obtain an estoppel certificate or letter
addressed to Mortgagee from the holder of the Superior
Mortgage, such certificate or letter to be in such form as
Mortgagee shall reasonably request;
(iv) Mortgagor shall promptly give to Mortgagee copies
of (A) all notices of default or (B) any other notice or
communication with respect to events which relate to the
possible impairment of the security of this Senior Guarantee
Mortgage, which Mortgagor shall give or receive under the
Superior Mortgage and shall promptly notify Mortgagee of any
default under the Superior Mortgage on the part of
Mortgagor.
Section 5.20. Indemnification.
Mortgagor shall protect, indemnify, hold harmless and defend
Mortgagee and its directors, officers, partners, shareholders,
agents, servants and employees from and against any and all
liabilities, obligations, claims, damages, penalties, causes of
action, costs and expenses (including, without limitation,
reasonable attorneys' fees, disbursements and court costs),
imposed upon or incurred by or asserted against Mortgagee by
reason of (a) any injury to or death of Persons or loss of or
damage to property occurring on or about the Premises or any part
thereof or the adjoining sidewalks, curbs, vaults and vault
spaces, if any, streets, alleys or ways, (b) any use, nonuse or
condition of the Premises or any part thereof or the adjoining
sidewalks, curbs, vaults and vault spaces, if any, streets,
alleys or ways, (c) any failure on the part of Mortgagor to
perform or comply with any of the terms of this Senior Guarantee
Mortgage, (d) performance of any labor or services or the
furnishing of any materials or other property in respect of the
Premises or any part thereof made or suffered to be made by or on
behalf of Mortgagor, (e) any negligence or tortious act on the
part of Mortgagor or any of its agents, contractors, lessees,
licensees or invitees, or (f) any work in connection with the
Premises; provided, that no amounts shall be payable to Mortgagee
(68)
<PAGE>
under this Section 5.20 in respect of liabilities, obligations,
claims, damages, penalties, causes of action, costs or expenses
imposed upon or incurred by or asserted against Mortgagee to the
extent the same result from any negligence or tortious act on the
part of Mortgagee or any of its agents, contractors, lessees,
licensees or invitees. All amounts payable to Mortgagee under
this Section 5.20 shall be payable on demand; provided, that with
respect to consequential damages (other than attorneys' fees,
disbursements and court costs imposed upon or incurred by
Mortgagee in connection therewith, which shall in all events be
payable on demand), no such amounts shall be payable until, and
to the extent that, (i) there has been entered the final
determination of a court of competent jurisdiction awarding such
consequential damages to the party or parties seeking such
damages or (ii) an agreement of settlement with respect thereto
(which shall have been previously approved by Mortgagor, such
consent not to be unreasonably withheld) shall have been executed
by Mortgagee and such party or parties. Any such amounts which
are not paid within 5 days after demand therefor by Mortgagee
shall bear interest at the rate set forth in the Senior
Partnership Note from the date of such demand and all such
amounts and interest thereon shall be secured by the lien of this
Senior Guarantee Mortgage. In case any action, suit or
proceeding is brought against Mortgagee by reason of any such
occurrence, Mortgagor, upon request of Mortgagee, shall, at
Mortgagor's expense, resist and defend such action, suit or
proceeding or cause the same to be resisted or defended by
counsel designated by Mortgagor and approved by Mortgagee, which
approval shall not be unreasonably withheld; provided, that
Willkie, Farr & Gallagher is hereby approved by Mortgagee.
(69)
<PAGE>
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed and attested, all as of the day and
year first above written.
TRUMP'S CASTLE ASSOCIATES
Witness: ____________________ By: _________________________
Name:
Title:
FIRST BANK NATIONAL ASSOCIATION
Witness: ____________________ By: _________________________
Name:
Title:
(70)
<PAGE>
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the ___ day of December, 1993, before me personally came
Donald J. Trump, to me know, who, being by me duly sworn, did depose
and say that he resides at 721 Fifth Avenue, New York, New York; that
he is the managing general partner of Trump's Castle Associates, the
partnership described in and which executed the above instrument; and
he acknowledged that he signed and delivered the same on behalf of
such partnership as his voluntary act and deed and as the voluntary
act and deed of such partnership, pursuant to authority of the board
of directors of said partnership, and that he received a true copy of
the within instrument on behalf of said general partnership.
_________________________
Notary Public
(NOTARY SEAL)
(71)
<PAGE>
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the _____ day of December, 1993, before me, personally came
Frank P. Leslie, to me known, who, being by me duly sworn did depose
and say that he is Assistant Vice President of First Bank National
Association, the national banking association described in and which
executed the above instrument; that he knows the corporate seal of
such corporation; that the seal affixed to said instrument is such
corporate seal; that it was so affixed pursuant to authority of the
Board of Directors of such corporation; and that he signed his name
thereto pursuant to like authority.
_________________________
Notary Public
(NOTARY SEAL)
<PAGE>
(72)
<PAGE>
Exhibit B to
Senior Note Indenture
INDENTURE OF MORTGAGE AND SECURITY AGREEMENT
(Senior Note Mortgage)
TRUMP'S CASTLE ASSOCIATES,
Mortgagor/Debtor
and
TRUMP'S CASTLE FUNDING, INC.,
Mortgagee/Secured Party
Dated as of December 28, 1993
Record and Return to:
Robert L. Nutt, Esq.
Ropes & Gray
One International Place
Boston, Massachusetts 02110-2624
<PAGE>
<PAGE>
TABLE OF CONTENTS
ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF
GENERAL APPLICATION. . . . . . . . . . . . . . . . . . . . . . . . 9
Section 1.1. Definitions. . . . . . . . . . . . . . . . . . 9
Section 1.2. Notices. . . . . . . . . . . . . . . . . . . . 19
Section 1.3. Form and Contents of
Documents Delivered to Mortgagee. . . . . . . . . . 20
Section 1.4. Compliance Certificates and Opinions.. . . . . 21
Section 1.5. Effect of Headings and Table of Contents.. . . 22
Section 1.6. Successors and Assigns; Amendments.. . . . . . 22
Section 1.7. Separability Clause. . . . . . . . . . . . . . 22
Section 1.8. Benefits of Mortgage.. . . . . . . . . . . . . 22
Section 1.9. Governing Law. . . . . . . . . . . . . . . . . 22
Section 1.10. Limitation on Liability. . . . . . . . . . . . 22
Section 1.11. Provisions Required by Senior Note
Indenture. . . . . . . . . . . . . . . . . . . . . . . . 23
Section 1.12. References to Mortgagee
and/or to Trustee; Rights of Trustee. . . . . . . . 23
Section 1.13. Mortgage Subject to Casino Control Act.. . . . 25
Section 1.14. Discharge of Lien. . . . . . . . . . . . . . . 25
Section 1.15. General Application. . . . . . . . . . . . . . 26
Section 1.16. Senior Note Mortgage Deemed to be Security
Agreement. . . . . . . . . . . . . . . . . . . . . . . . 26
Section 1.17. No Duplication of Notices or Payments. . . . . 26
ARTICLE TWO RELEASE; SUBORDINATION . . . . . . . . . . . . . . . . 27
Section 2.1. Possession by Mortgagor. . . . . . . . . . . . 27
Section 2.2. Obsolete Property. . . . . . . . . . . . . . . 27
Section 2.3. F,F&E Financing Agreements.. . . . . . . . . . 28
ARTICLE THREE REMEDIES . . . . . . . . . . . . . . . . . . . . . . 29
Section 3.1. Events of Default. . . . . . . . . . . . . . . 29
Section 3.2. Acceleration of Maturity;
Recision and Annulment. . . . . . . . . . . . . . . 31
Section 3.3. Application of Moneys Received by
Mortgagee. . . . . . . . . . . . . . . . . . . . . . . . 31
Section 3.4. Restoration of Rights and Remedies.. . . . . . 31
Section 3.5. Rights and Remedies Cumulative.. . . . . . . . 31
Section 3.6. Delay or Omission Not Waiver.. . . . . . . . . 32
Section 3.7. Undertaking for Costs. . . . . . . . . . . . . 32
Section 3.8. Waiver of Appraisement and Other Laws. . . . . 32
Section 3.9. Entry. . . . . . . . . . . . . . . . . . . . . 33
Section 3.10. Power of Sale; Suits for Enforcement.. . . . . 33
Section 3.11. Incidents of Sale. . . . . . . . . . . . . . . 34
Section 3.12. Receiver.. . . . . . . . . . . . . . . . . . . 35
Section 3.13. Suits to Protect the Trust Estate. . . . . . . 35
Section 3.14. Management of the Premises.. . . . . . . . . . 36
(i)
<PAGE>
ARTICLE FOUR CONSOLIDATION, MERGER, CONVEYANCE,
TRANSFER OR LEASE. . . . . . . . . . . . . . . . . . . . . . . . . 36
Section 4.1. Consolidation, Merger, Conveyance
or Transfer only on Certain Terms.. . . . . . . . . 36
Section 4.2. Successor Entity Substituted.. . . . . . . . . 36
ARTICLE FIVE COVENANTS AND REPRESENTATIONS OF MORTGAGOR . . . . . 36
Section 5.1. Payment of Principal, Premium and Interest.. . 36
Section 5.2. F,F&E Financing Agreements.. . . . . . . . . . 37
Section 5.3. Limitations on Liens and Transfers.. . . . . . 37
Section 5.4. Environmental. . . . . . . . . . . . . . . . . 38
Section 5.5. Warranty of Leasehold Estate and Title . . . . 42
Section 5.6. After-Acquired Property;
Further Assurances; Recording.. . . . . . . . . . . 43
Section 5.7. Payment of Taxes and Certain Claims;
Maintenance of Properties; Compliance with
Legal Requirements and Insurance Requirements.. . . 45
Section 5.8. Permitted Contests . . . . . . . . . . . . . . 46
Section 5.9. Mechanics' and Other Liens.. . . . . . . . . . 47
Section 5.10. To Insure. . . . . . . . . . . . . . . . . . . 47
Section 5.11. Limitations on Building Demolition,
Alterations, Improvements and New Construction. . . 55
Section 5.12. Leases.. . . . . . . . . . . . . . . . . . . . 57
Section 5.13. Compliance Certificates. . . . . . . . . . . . 59
Section 5.14. To Keep Books; Inspection by Mortgagee . . . . 59
Section 5.15. Advances by Mortgagee. . . . . . . . . . . . . 60
Section 5.16. Waiver of Stay, Extension or Usury Laws. . . . 60
Section 5.17. Eminent Domain.. . . . . . . . . . . . . . . . 60
Section 5.18. Facility Leases. . . . . . . . . . . . . . . . 63
Section 5.19. Superior Mortgage. . . . . . . . . . . . . . . 67
Section 5.20. Indemnification. . . . . . . . . . . . . . . . 69
SCHEDULE 1 OWNED LAND. . . . . . . . . . . . . . . . . . . . . . 1-1
SCHEDULE 2 LEASED LAND . . . . . . . . . . . . . . . . . . . . . 2-1
SCHEDULE 3 EXISTING ENCUMBRANCES . . . . . . . . . . . . . . . . 3-1
SCHEDULE 4 FORM OF NON-DISTURBANCE AND ATTORNMENT AGREEMENT. . . 4-1
(ii)
<PAGE>
<PAGE>
INDENTURE OF MORTGAGE AND SECURITY AGREEMENT
INDENTURE OF MORTGAGE AND SECURITY AGREEMENT ("Senior Note
Mortgage" or "Mortgage"), dated as of December 28, 1993, between
TRUMP'S CASTLE ASSOCIATES, a New Jersey general partnership having an
office at Brigantine Boulevard and Huron Avenue, Atlantic City, New
Jersey 08401 ("Mortgagor"), and TRUMP'S CASTLE FUNDING, INC., a New
Jersey corporation having an office at Brigantine Boulevard and Huron
Avenue, Atlantic City, New Jersey 08401 ("Mortgagee").
Witnesseth:
In consideration of $10.00 in hand paid by Mortgagee to
Mortgagor and for other good and valuable consideration, the receipt
and sufficiency whereof is hereby acknowledged, and in order to
secure (i) the payment of the principal amount (and premium, if any)
of the Senior Partnership Note, in lawful money of the United States,
to be paid in accordance with the provisions thereof (and of all
modifications, extensions, and renewals thereof), all of which
provisions are hereby made an integral part hereof as though set
forth at length herein; (ii) payment of interest (including, without
limitation, interest on all overdue principal and premium, if any)
becoming due under the provisions of the Senior Partnership Note;
(iii) payment by Mortgagor to Mortgagee of all sums expended or
advanced by Mortgagee pursuant to any term or provision of this
Senior Note Mortgage; (iv) performance of each covenant, term,
condition and agreement of Mortgagor herein or in the Senior
Partnership Note contained; (v) all costs and expenses, including,
without limitation, reasonable counsel fees and expenses as provided
in Section 3.7 of this Mortgage, which may arise in respect of the
Senior Partnership Note and this Senior Note Mortgage or of the
obligations secured hereby; and (vi) performance and observance of
all of the provisions herein contained, Mortgagor has executed and
delivered this Senior Note Mortgage and has bargained, sold, aliened,
mortgaged, pledged, released, conveyed and confirmed unto Mortgagee
and its successors hereunder and assigns forever, and does hereby
grant to Mortgagee and its successors a security interest in and to,
all of Mortgagor's right, title and interest in, to and under all of
the following described property and the proceeds thereof:
(1)
<PAGE>
GRANTING CLAUSES
Granting Clause First
All of the property, rights, title, interest, privileges and
franchises particularly described in annexed Schedule 1 (the "Owned
Land"), which Schedule is hereby made a part of, and deemed to be
described in, this Granting Clause as fully as if set forth in this
Granting Clause at length.
Granting Clause Second
[Intentionally omitted]
Granting Clause Third
All of the property, rights, title, interest, privileges and
franchises of Mortgagor as lessee under all Facility Leases
(including, to the extent permissible to the Landlord under the
Marina Lease, the Marina Lease), together with (i) all credits,
deposits, privileges and rights of Mortgagor as lessee under the
Facility Leases, now or at any time existing, (ii) the leaseholds and
the leasehold estates created by the Facility Leases and (iii) all of
the estates, rights, titles, claims or demands whatsoever of
Mortgagor, either in law or in equity, in possession or in
expectancy, of, in and to the Facility Leases and the Leased
Facilities (including, but not limited to, the Leased Land
particularly described in annexed Schedule 2), together with (x) any
and all other, further or additional title, estates, interests or
rights which may at any time be acquired by Mortgagor in or to the
Leased Facilities or any part thereof, and Mortgagor expressly agrees
that if Mortgagor shall, at any time prior to payment in full of all
indebtedness secured hereby, acquire fee simple title or any other
greater estate to the Leased Facilities, the lien of this Mortgage,
subject to Permitted Encumbrances, shall attach, extend to, cover and
be a lien upon such fee simple title or other greater estate and
thereupon the lien of this Mortgage, subject to Permitted
Encumbrances, shall be prior to the lien of any mortgage or deed of
trust placed on such acquired title, estate, interest or right
subsequent to the date of this Mortgage and (y) any right to
possession or statutory term of years derived from, or incident to,
the Facility Leases pursuant to Section 365(h) of the Code or any
Comparable Provision.
(2)
<PAGE>
Granting Clause Fourth
All of the rents, issues, profits, revenues, accounts, accounts
receivable and other income and proceeds (including, without
limitation, all rents, fees, charges, accounts, issues, profits,
revenues and payments for or from (a) the use or occupancy of the
rooms and other public facilities in the Hotel and (b) the operation
of the Casino) of the property subjected or required to be subjected
to the lien of this Mortgage, including, without limitation, the
property described in Granting Clauses First, Third and Seventh (said
property described in Granting Clauses First, Third and Seventh and
similar other property subjected or required to be subjected to the
lien of this Mortgage, together with all such rents, issues, profits,
revenues, accounts, accounts receivable and other income and proceeds
therefrom is hereinafter collectively referred to as the "Premises")
and all of the estate, right, title and interest of every nature
whatsoever of Mortgagor in and to the same and every part thereof.
Granting Clause Fifth
All of the rights of Mortgagor as lessor under the Leases in
effect on the date of execution of this Mortgage or hereafter entered
into by Mortgagor, including modifications, extensions and renewals
of all of the same, and the immediate and continuing right as
security after the occurrence, and during the continuance, of an
Event of Default, to (a) make claim for, collect, receive and receipt
for (and to apply the same as provided herein) any and all rents,
fees, charges, income, revenues, issues, profits, security and other
sums of money payable or receivable thereunder or pursuant thereto,
and all proceeds thereof, whether payable as rent, insurance
proceeds, condemnation awards, security or otherwise and whether
payable prior to or subsequent to the Stated Maturity of the Senior
Partnership Note, (b) receive and give notices and consents
thereunder, (c) bring actions and proceedings thereunder or for the
enforcement thereof, (d) make waivers and agreements thereunder or
with respect thereto, (e) take such action upon the happening of a
default under any Lease, including the commencement, conduct and
consummation of any proceedings at law or in equity as shall be
permitted by any provision of any Lease, and (f) do any and all
things which Mortgagor or any lessor is or may become entitled to do
under the Leases; provided that, except as may be set forth to the
contrary herein, the assignment made by this Granting Clause Fourth
shall not impair or diminish any right, privilege or obligation of
Mortgagor under the Leases nor shall any such obligation be imposed
upon Mortgagee.
(3)
<PAGE>
Granting Clause Sixth
Without limiting the generality of the provisions of Granting
Clause Fourth, all of Mortgagor's rights, title, interest, privileges
and franchises in and to the following, now owned or hereafter
acquired by Mortgagor, to the extent of Mortgagor's interest therein
and thereto and to the extent assignable (collectively, "Operating
Assets"):
(a) bookings for the use of guest rooms, banquet facilities,
meeting rooms at the Casino Hotel or at any other improvements now or
hereafter located on any of the Land;
(b) all contracts respecting utility services for, and the
maintenance, operations, or equipping of, the Premises, including
guaranties and warranties relating thereto;
(c) the Permits;
(d) all contract rights, leases (whether with respect to real
property, personal property or both real and personal property),
concessions, trademarks, trade names, service marks, logos,
copyrights, warranties and other items of intangible personal
property, and any and all good will associated with the same,
relating to the ownership or operation of the Casino Hotel or of any
other improvements now or hereafter located on any of the Land,
including, without limitation, (1) employment contracts with officers
and other employees of Mortgagee, (2) telephone and other
communication numbers, (3) all software licensing agreements as are
required to operate computer software systems at the Casino Hotel or
at any other improvements now or hereafter located on any of the Land
and books and records relating to the software programs and (4)
lessee's interest under leases of Tangible Personal Property;
(e) all contracts, purchase orders, requisitions and agreements
entered into by or on behalf of Mortgagor or which have been assigned
to Mortgagor, for the design, construction, and furnishing of the
Casino Hotel or of any other improvements now or hereafter located on
any of the Land, including, without limitation, architect's
agreements, engineering agreements, construction contracts,
consulting agreements and agreements or purchase orders for all items
of Tangible Personal Property and payment and performance bonds in
favor of Mortgagor in connection with the Trust Estate (and all
warranties and guarantees thereunder and warranties and guarantees of
any subcontractor and bond issued in connection with the work to be
performed by any subcontractor);
(f) the following personal property (the "Tangible Personal
Property") now or hereafter acquired by Mortgagor (directly or by
(4)
<PAGE>
way of lease) which is located on, or to be located on, or which are
in use or held in reserve storage for future use in connection with
the gaming or other operations of, the Casino Hotel or of any other
improvements now or hereafter located on any of the Land, which is on
hand or on order whether stored on-site or off-site:
(i) all furniture, furnishings, equipment, machinery,
lighting, apparatus (both interior and exterior), appliances,
fixtures and fittings and other articles of tangible personal
property;
(ii) all slot machines, electronic gaming devices, crap
tables, blackjack tables, poker tables, roulette tables,
baccarat tables, big six wheels and other gaming tables, and all
furnishings and equipment to be used in connection with the
operation thereof;
(iii) all cards, dice, gaming chips and plaques, tokens,
chip racks, dealing shoes, dice cups, dice sticks, layouts,
paddles, roulette balls and other consumable supplies and items;
(iv) all china, glassware, linens, kitchen utensils,
silverware and uniforms;
(v) all consumables and operating supplies of every kind
and nature, including, without limitation, accounting supplies,
guest supplies, forms, printing, stationery, food and beverage
stock, bar supplies, laundry supplies and brochures to existing
purchase orders;
(vi) all upholstery material, carpets and rugs, beds,
bureaus, chiffonniers, chairs, chests, desks, bookcases, tables,
curtains, hangings, pictures, divans, couches, ornaments, bars,
bar fixtures, safes, stoves, ranges, refrigerators, radios,
televisions, clocks; electrical equipment, lamps, mirrors,
heating and lighting fixtures and equipment, ice machines, air
conditioning machines, fire prevention and extinguishing
apparatus, laundry machines, and all similar and related
articles used in bedrooms, sitting rooms, bathrooms, boudoirs,
halls, closets, kitchens, dining rooms, offices, lobbies,
basements and cellars in the Casino Hotel and in any other
improvements now or hereafter located on any of the Land;
(vii) all sets and scenery, costumes, props and other
items of tangible personal property on hand or on order for use
in the production of shows in any showroom, convention space,
exhibition hall, or sports and entertainment arena of the Casino
Hotel or in any other improvements now or hereafter located on
any of the Land; and
(5)
<PAGE>
(viii) all cars, limousines, vans, buses, trucks and other
vehicles owned or leased by Mortgagor for use in connection with
the operation of the Premises, together with all equipment,
parts and supplies used to service, repair, maintain and equip
the foregoing;
(g) all drawings, designs, plans and specifications prepared by
architects, engineers, interior designers, landscape designers and
any other professionals or consultants for the design, development,
construction and/or improvement of the Casino Hotel, or for any other
development of the Premises, as amended from time to time;
(h) any administrative and judicial proceedings initiated by
Mortgagor, or in which Mortgagor has intervened, concerning the
Premises, and agreements, if any, which are the subject matter of
such proceedings;
(i) any customer lists utilized by Mortgagor including lists of
transient guests and restaurant and bar patrons and "high roller"
lists; and
(j) all of the good will in connection with the assets listed
in this Granting Clause Sixth and in connection with the operation of
the Premises.
Except as may be set forth to the contrary herein, the
assignment made by this Granting Clause Sixth shall not impair or
diminish any right, privilege or obligation of Mortgagor with respect
to the Operating Assets, nor shall any such obligation be imposed on
Mortgagee.
Granting Clause Seventh
(a) All of Mortgagor's rights, title, interest, privileges and
franchises, if any, in and to all buildings, structures (surface and
subsurface), and other improvements of every kind and description,
including, without limitation, all pedestrian bridges, entrance-ways,
parking lots, plazas, curb-cuts, walkways, driveways and landscaping
and such fixtures as constitute real property, now or hereafter
erected or placed on the Land or on any other land or any interest
therein hereafter acquired by Mortgagor and all of Mortgagor's
rights, title, interest, privileges and franchises in and to all
fixtures and articles of personal property now or hereafter attached
to or contained in and used in connection with such buildings and
improvements, including, without limitation, all apparatus,
furniture, furnishings, lighting equipment, electronic billboards,
machinery, motors, elevators, fittings, radiators, cooking ranges,
ice boxes, ice machines, printing presses,
(6)
<PAGE>
mirrors, bars, mechanical refrigerators, furnaces, coal and oil
burning apparatus, wall cabinets, machinery, generators, partitions,
steam and hot water boilers, lighting and power plants, pipes,
plumbing, radiators, sinks, bath tubs, water closets, gas and
electrical fixtures, awnings, shades, screens, blinds, dishwashers,
freezers, vacuum cleaning systems, office equipment and other
furnishings, and all plumbing, heating, lighting, cooking, laundry,
ventilating, incinerating, air-conditioning and sprinkler equipment
or other fire prevention or extinguishing apparatus and material, and
fixtures and appurtenances thereto; and all renewals or replacements
thereof or articles in substitution therefor, whether or not the same
are or shall be attached to the Land, any other land or any interest
therein hereafter acquired by Mortgagor or to any such buildings and
improvements thereon, in any manner.
(b) All of Mortgagor's rights, title, interest, privileges and
franchises in and to all other property, real, personal or mixed
(other than Excepted Property), of every kind and description and
wheresoever situate, now owned or which may be hereafter acquired by
Mortgagor, it being the intention hereof that all property,
interests, rights, privileges and franchises now owned by Mortgagor
or acquired by Mortgagor after the date hereof (other than Excepted
Property) shall be as fully embraced within and subjected to the lien
hereof as if such property were specifically described herein.
* * *
TOGETHER with all of Mortgagor's right, title and interest in
and to any and all mineral and water rights and any title or
reversion, in and to the beds of the ways, streets, avenues and
alleys adjoining the Premises to the center line thereof and in and
to all strips, gaps and gores adjoining the Premises on all sides
thereof; and
TOGETHER with any and all of Mortgagor's right, title and
interest in and to the tenements, hereditaments, easements,
appurtenances, passages, waters, water courses, riparian rights,
other rights, liberties and privileges thereof or in any way now or
hereafter appertaining to the Premises, including, without
limitation, any other claim at law or in equity as well as any
after-acquired title, franchise or license and the reversion and
reversions and remainder and remainders thereof; and
TOGETHER with any and all awards and other compensation
heretofore or hereafter to be made to the present and all subsequent
owners of the Trust Estate for any taking by eminent domain, either
permanent or temporary, of all or any part of the Trust Estate or any
easement or appurtenances thereof, including severance and
consequential damage and change in grade of
(7)
<PAGE>
streets, all in accordance with and subject to the provisions of the
Superior Instrument Requirements and Section 5.17; and
TOGETHER with any and all proceeds of any unearned premiums on
any insurance policies described in Section 5.10, and the right to
receive and apply the proceeds of any insurance, judgments, or
settlements made in lieu thereof, for damage to the Trust Estate or
otherwise, all in accordance with and subject to the provisions of
Section 5.10 and the Superior Instrument Requirements; and
TOGETHER with all proceeds of every kind and nature, and all
products of every kind and nature, of any of the foregoing property,
rights, title, interests, privileges, franchises and other assets
described in Granting Clauses First through Seventh or in any of the
other clauses thereafter.
The foregoing shall include, whether or not specifically
identified in one or more instances, all such property, rights,
title, interests, privileges, franchises and other assets now owned
and/or hereafter existing.
EXCLUDING, with respect to all of the hereinabove granted
property, rights, title, interest, privileges and franchises
described in Granting Clauses First through Seventh or in the six
immediately preceding paragraphs, all Excepted Property now or
hereafter existing.
TO HAVE AND TO HOLD all of said Premises, Leases, Facility
Leases, Operating Assets, properties, options, credits, deposits,
rights, privileges and franchises of every kind and description,
real, personal or mixed, hereby and hereafter granted, bargained,
sold, aliened, assigned, transferred, hypothecated, pledged,
released, conveyed, mortgaged, or confirmed as aforesaid, or
intended, agreed or covenanted so to be, together with all the
appurtenances thereto appertaining (said Premises, Leases, Facility
Leases, Operating Assets, properties, options, credits, deposits,
rights, privileges and franchises, other than Excepted Property now
or hereafter existing, being herein collectively called the "Trust
Estate") unto Mortgagee and its successors and assigns forever.
SUBJECT, HOWEVER, on the date hereof, to the Midlantic Mortgage
and Existing Encumbrances (including the Superior Mortgages) and,
after the date hereof, to Permitted Encumbrances (other than
Restricted Encumbrances).
PROVIDED, FURTHER, that the lien of this Senior Note Mortgage
upon the Trust Estate shall rank pari passu with the lien of the
Senior Guarantee Mortgage.
(8)
<PAGE>
BUT IN TRUST, NEVERTHELESS, for the ratable benefit and security
of the Holders.
UPON CONDITION that, until the happening of an Event of Default,
Mortgagor shall be permitted to possess and use the Trust Estate, and
to receive and use the rents, issues, profits, revenues and other
income of the Trust Estate.
AND IT IS HEREBY COVENANTED AND DECLARED that the Trust Estate
is to be held and applied by Mortgagee, subject to the further
covenants, conditions and trusts hereinafter set forth, and Mortgagor
does hereby covenant and agree to and with Mortgagee, for the ratable
benefit of the Holders, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF
GENERAL APPLICATION
Section 1.1. Definitions.
For all purposes of this Senior Note Mortgage, except as
otherwise expressly provided or unless the context otherwise
requires:
(a) the terms defined in this Article One have the meanings
assigned to them in this Article One and include the plural as well
as the singular;
(b) all accounting terms not otherwise defined herein have the
meanings assigned to them, and all computations herein provided for
shall be made, in accordance with generally accepted accounting
principles in effect on the date hereof consistently applied; and
(c) the words "herein," "hereof" and "hereunder" and other
words of similar import refer to this Mortgage as a whole and not to
any particular Article, Section or other subdivision.
"Affiliate" has the meaning set forth in Section 1.1 of the
Senior Note Indenture.
"Alterations" has the meaning set forth in Section 5.11.
"Appraised Value" means the fair market value of the Casino
Hotel, and of all other property now or hereafter owned or leased by
Mortgagor and subject to the lien of this Mortgage, as determined by
an Independent Appraiser on the basis of an appraisal in conformity
with the criteria set forth at 12 C.F.R. ss 564.4 or such similar
published policy or regulation as from time to time governs real
estate related transactions by
(9)
<PAGE>
institutions regulated by the Office of Thrift Supervision; provided,
that the value of the Casino Hotel and such other property shall not
include the value of (i) any furniture, fixtures and equipment
therein to the extent of the Outstanding Amount of any Indebtedness
secured by any F,F&E Financing Agreements with respect thereto and
(ii) any Excepted Property.
"Appraiser" means a "state certified appraiser" as defined in 12
C.F.R. ss 564.2(i) who is (i) of recognized standing among appraisers
of properties similar to the Casino Hotel and (ii) experienced in the
appraisals of properties of a similar size and scope to that of the
Casino Hotel, selected by Mortgagor.
"Architect" means an Independent Person selected by Mortgagor
and licensed as an architect in the State of New Jersey.
"Casino" means that portion of the Casino Hotel used for gaming
and related activities.
"Casino Hotel" means the casino and hotel complex currently
known as the "Trump's Castle Casino Resort" in Atlantic City, New
Jersey, and ancillary structures and facilities located on the
Premises (other than the property covered by the Marina Lease) and
all furniture, fixtures and equipment at any time contained therein
in each case owned by or leased to Mortgagor.
"Casualty" means any act or occurrence of any kind or nature
which results in damage, loss or destruction to any buildings or
improvements on the Premises and/or Tangible Personal Property.
"Certificate of Appraised Value" means the certificate of an
Independent Appraiser stating the Appraised Value.
"Code" means the Federal Bankruptcy Code, Title 11 of the United
States Code, as amended.
"Company" means Trump's Castle Funding, Inc., a corporation
incorporated under the laws of the State of New Jersey, or any other
obligor on the Senior Secured Notes (other than Mortgagor).
"Comparable Provision" has the meaning set forth in
Section 5.18.
"Default" means any event which is, or after notice or lapse of
time or both would be, an Event of Default. Without limiting the
generality of the previous provisions of this definition, the term
"Default" shall include the occurrence of an event as to which a
notice of default has been given to Mortgagor under any Facility
Lease by a Lessor or under the Superior Mortgage by the holder
thereof, which has not yet been cured.
(10)
<PAGE>
"Depositary" means an Independent entity to which insurance
proceeds or condemnation awards are paid to be held in trust for
Restoration pursuant to the provisions of a Superior Mortgage.
"Event of Default" has the meaning set forth in Section 3.1.
"Excepted Property" means:
(1) the personal property owned by lessees under Leases and the
personal property of any Hotel guests;
(2) trade names, intellectual property rights and other rights
and interests in and to the use of the terms "Trump's Castle,"
"Trump," "Trump's Castle Casino Resort", "Donald J. Trump," "Donald
Trump" or related variations thereof;
(3) any property deemed to be Excepted Property pursuant to the
provisions of Section 2.3;
(4) counterchecks, cash and any other property to the extent
that the granting of a security interest therein is prohibited by the
New Jersey Casino Control Act and the regulations promulgated
thereunder; and
(5) any property acquired pursuant to secured purchase-money
indebtedness permitted under clause "i" of the definition of
"Permitted Indebtedness" in the Senior Note Indenture.
"Existing Encumbrances" means the matters set forth in Schedule
3 hereto, including, but not limited to, the instruments securing,
evidencing, or governing the Midlantic Term Loan.
"Facility Leases" means, collectively:
(1) the Marina Lease;
(2) any leases other than Capital Lease Obligations and the
Marina Lease where Mortgagor is tenant or sub-tenant; provided,
however, that the aggregate fixed rental payments paid or accrued for
any period of four consecutive fiscal quarters commencing after the
date hereof under all such leases (including payments required to be
made by the lessee in respect of taxes and insurance, whether or not
denominated as rent), shall not exceed for such period (a) $2,000,000
or (b) $7,500,000 following the time at which the Partnership shall
have achieved EBITDA for any period of four consecutive quarters in
an amount not less than $45.0 million; provided, further, that the
Mortgagor may designate certain such leases which are not material to
the operations of the Casino Hotel and which have aggregate fixed
rental payments (including payments required to be made by the lessee
in respect of taxes and insurance, whether or not denominated as
rent) not exceeding an aggregate of $300,000 per
(11)
<PAGE>
year to be excluded from the leases covered by this clause (2); and
(3) any and all modifications, extensions and renewals of the
leases described in clauses (1) and (2) above, to the extent the same
are permitted under Section 5.18.
"F,F&E Financing Agreement" has the meaning set forth in Section
1.1 of the Senior Note Indenture.
"Full Insurable Value" means the actual replacement cost
(excluding the costs of foundation, footing, excavation, paving,
landscaping and other similar, noninsurable improvements) of the
insurable properties in question.
"Holder" has the meaning set forth in Section 1.1 of the Senior
Note Indenture.
"Hotel" means that portion of the Casino Hotel not included
within the Casino.
"Impositions" has the meaning set forth in Section 5.7.
"Indebtedness" has the meaning set forth in Section 1.1 of the
Senior Note Indenture.
"Independent" when used with respect to any specified Person
means such a Person who (i) is in fact independent, (ii) does not
have any direct financial interest or any material indirect financial
interest in Mortgagor or in any other obligor upon the Senior
Partnership Note or in any Affiliate of Mortgagor or of such other
obligor and (iii) is not connected with Mortgagor or such other
obligor or any Affiliate of Mortgagor or such other obligor as an
officer, employee,, promoter, underwriter, trustee, partner, director
or person performing similar functions. Whenever it is herein
provided that any Independent Person's opinion or certificate shall
be furnished to Mortgagee, such Person shall be appointed by a
Mortgagor order and such opinion or certificate shall state that the
signer has read this definition and that the signer is Independent
within the meaning thereof. A Person who is performing or who has
performed services as an independent contractor to any specified
Person shall not be considered not Independent merely by reason of
the fact that such Person is performing or has performed such
services.
"Insurance Amount" has the meaning set forth in Section
5.10(a)(i).
"Insurance Requirements" means all terms of any insurance policy
covering or applicable to the Trust Estate or any part thereof, all
requirements of the issuer of any such policy, and
(12)
<PAGE>
all orders, rules, regulations and other requirements of the National
Board of Fire Underwriters (or any other body exercising similar
functions) applicable to or affecting the Trust Estate or any part
thereof or any use or condition of the Trust Estate or any part
thereof.
"Insurance Trustee" means the Trustee or, if the Trustee so
elects, any bank, trust company or insurance company with a net worth
in excess of $100,000,000, designated by the Trustee.
"Insurer" means (i) an insurance company or companies
selected by Mortgagor authorized to issue insurance in the State of
New Jersey with an A.M. Best rating level of A minus or better and an
A.M. Best financial size category of VIII or better or (ii) Lloyds of
London so long as its financial capacity is not such that prudent
owners of first-class casino and hotel complexes in Atlantic City,
New Jersey would be unwilling to accept Lloyds of London; provided,
that with respect to the insurance required to be maintained pursuant
to Section 5.10(a)(i), up to 1.0% of the total amount of such
insurance in excess of the first $10,000,000 thereof may be
maintained with an insurance company or companies not meeting the
foregoing A.M. Best rating level and/or A.M. Best financial size
categories; and provided, further, that Mortgagor shall in all events
use commercially reasonable efforts to obtain insurance issued by
insurance companies having an A.M. Best rating level of better than A
minus.
"Land" means, collectively, the Owned Land and the Leased Land.
"Lease" means each lease or sublease (made by Mortgagor, as
lessor or sublessor, as the case may be) of any space in any building
or buildings, an interest in which building or buildings constitutes
a part of the Trust Estate, including every agreement relating
thereto or entered into in connection therewith and every guarantee
of the performance and observance of the covenants, conditions and
agreements to be performed by the lessee or sublessee under any such
lease or sublease. For purposes hereof, the term "Lease" shall
include any license agreement, concession agreement or other
occupancy agreement. Notwithstanding the foregoing, the term "Lease"
shall not include any transient room rentals.
"Leased Facilities" means, collectively, the Leased Land and any
buildings and improvements now or hereafter located thereon.
"Leased Land" means, collectively, the Marina Lease and any
other land that is now or hereafter subject to a Facility Lease.
"Legal Requirements" means all laws, statutes, codes, acts,
ordinances, orders, judgments, decrees, injunctions, rules,
(13)
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regulations, permits, licenses, authorizations, directions and
requirements (including, without limitation, the New Jersey Casino
Control Act, the New Jersey Environment Cleanup Responsibility Act
and the New Jersey Spill Compensation and Control Act of 1976) of all
governments, departments, commissions, boards, courts, authorities,
agencies, officials and officers, of governments, federal, state and
municipal (including, without limitation, the New Jersey Department
of Environmental Protection and Energy, the Atlantic City Bureau of
Investigations, the Division of Gaming Enforcement of the State of
New Jersey, and the Casino Control Commission of the State of New
Jersey), foreseen or unforeseen, ordinary or extraordinary, which now
are or at any time hereafter become applicable to the Trust Estate or
any part thereof, or any of the adjoining sidewalks, or any use or
condition of the Trust Estate or any part thereof, including, without
limitation, the use of the Casino Hotel as a gaming or gambling
facility.
"Lessors" means the lessors under the Facility Leases.
"Marina Lease" means the lease agreement made September 1, 1990
between the State of New Jersey, as Landlord, and Mortgagor, as
tenant, respecting property known as the Senator Frank S. Farley
State Marina, Atlantic City, New Jersey, being designated as a
portion of Block B-4, Lot 11 on the tax map of the City of Atlantic
City, Atlantic County, New Jersey, as more particularly described on
Schedule A appended hereto and made a part hereof, together with all
amendments, restatements, extensions and renewals of said lease
agreement.
"Maturity" when used with respect to any Indebtedness means the
date on which the principal (or any portion thereof) of such
Indebtedness becomes due and payable as therein or herein provided,
whether at the Stated Maturity, upon acceleration, optional
redemption, required repurchase, scheduled principal payment or
otherwise.
"Midlantic Mortgage" means the Amended and Restated Indenture
of Mortgage, dated as of May 29, 1992, from the Mortgagor to
Midlantic National Bank, the Amended and Restated Assignment of
Leases and Rents, dated as of May 29, 1992, between the same parties,
and the Amended and Restated Assignment of Operating Assets, dated as
of May 29, 1992, between the same parties and all amendments,
restatements, extensions and renewals thereof.
"Midlantic Term Loan" has the meaning set forth in Section 1.1
of the Mortgage Note Indenture.
"Mortgage Documents" has the meaning set forth in Section 1.1 of
the Mortgage Note Indenture, except that the term
(14)
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"Mortgage Documents" shall not include the Pledge Agreement (as
defined in said Section 1.1).
"Mortgage Note Indenture" means that certain indenture of even
date herewith among the Company, as issuer, the Mortgagor, as
guarantor, and First Bank National Association, as trustee, as it may
be amended from time to time, relating to the Company's Mortgage
Notes.
"Mortgage Notes" means the 11-3/4% Mortgage Notes due 2003
issued by the Company pursuant to the Mortgage Note Indenture.
"Mortgagee" has the meaning set forth in Section 1.12.
"Mortgagor" means the Person named as "Mortgagor" in the first
paragraph of this instrument until a successor entity shall have
become such pursuant to the applicable provisions of this Mortgage,
and thereafter, except to the extent otherwise contemplated by
Section 4.2, "Mortgagor" shall mean such successor entity
exclusively.
"Mortgagor Order" and "Mortgagor Request" mean, respectively, a
written order or request signed with a Mortgagor Signature and
delivered to Mortgagee.
"Mortgagor Signature" means the signature of the President or a
Vice President or a general partner of Mortgagor.
"Mortgagor's Certificate" means a certificate signed with a
Mortgagor Signature and delivered to Mortgagee.
"Notices" has the meaning set forth in Section 1.2.
"Operating Assets" has the meaning set forth in Granting Clause
Sixth.
"Opinion of Counsel" means a written opinion of counsel who may
(except as otherwise expressly provided in this Mortgage) be an
employee of Mortgagor or of an Affiliate of Mortgagor.
"Original Policy" means the ALTA Loan Policies of
Title Insurance issued by First American Title Insurance Company,
Chicago Title Insurance Company and Commonwealth Land Title Insurance
Company, pursuant to Title Commitment. No. F237584L, dated the date
hereof.
"Outstanding Amount" has the meaning set forth in
Section 1.1 of the Senior Note Indenture.
"Owned Land" has the meaning set forth in Granting Clause First.
(15)
<PAGE>
"Permits" means all licenses, franchises, authorizations,
statements of compliance, certificates of operation, certificates of
occupancy and permits required for the lawful ownership, occupancy,
operation and use of all or a material portion of the Premises
whether held by Mortgagor or any other Person (which may be temporary
or permanent) (including, without limitation, those required for the
use of the Casino Hotel as a licensed casino facility), in accordance
with all applicable Legal Requirements.
"Permitted Encumbrances" means:
(1) liens for taxes, assessments, or governmental charges not
yet due and payable, or if due and payable not
delinquent, to the extent that any fine, penalty, interest or cost
may be added for nonpayment thereof;
(2) Existing Encumbrances (including the Midlantic Mortgage);
(3) F,F&E Financing Agreements permitted by the Senior Note
Indenture;
(4) the liens of the Trustee provided for in Section 6.6 of the
Senior Note Indenture and of the trustees under the corresponding
sections of the Mortgage Note Indenture and the PIK Note Indenture;
(5) any lien or encumbrance which, under the provisions of
Section 5.7, constitutes a Permitted Encumbrance;
(6) Restricted Encumbrances;
(7) Working Capital Facility Mortgage;
(8) the Liens of the Senior Note Mortgage Documents (as defined
in the Senior Notes Indenture) and the Mortgage Documents, and any
rights granted as provided therein;
(9) any lien or encumbrance permitted under Section 5.3 of this
Mortgage;
(10) any lien or encumbrance securing purchase money
indebtedness permitted by the Senior Note Indenture;
(11) modifications, refinancings, extension, renewals or
replacements, in whole or in part, of the liens described in clauses
(2) through (10) of this definition to the extent permitted by
Section 5.19 hereof and the Senior Note Indenture; and
(12) any Facility Lease now existing or hereafter entered into.
(16)
<PAGE>
"Person" means any individual, corporation, limited or general
partnership, joint venture, association, joint stock company, trust,
unincorporated organization or any other entity or government or any
agency or political subdivision thereof.
"PIK Note Indenture" means that certain indenture of even date
herewith among the Company, as issuer, the Mortgagor, as guarantor,
and First Bank National Association, as trustee, as it may be amended
from time to time, relating to the Company's PIK Notes.
"PIK Notes" means the Company's 13 7/8% Pay-in-Kind Notes due
2005.
"Premises" has the meaning set forth in Granting Clause Fourth.
"Restoration" has the meaning set forth in Section 5.10(e)(iii).
"Restricted Encumbrances" means any Leases permitted by and made
in accordance with Section 5.12 of this Mortgage.
"Securities Act" has the meaning set forth in
Section 1.1 of the Senior Note Indenture.
"Senior Assignment Agreement" means the Senior Assignment
Agreement of even date herewith made by Trump's Castle Funding, Inc.
to the Trustee and acknowledged by Mortgagor, providing for the
assignment to the Trustee of the Senior Partnership Note and this
Senior Note Mortgage.
"Senior Guarantee" means the guarantee by Mortgagor of the
Company's Indenture Obligations (as defined in the Senior Indenture)
pursuant to Article Fourteen of the Senior Indenture.
"Senior Guarantee Mortgage" means the Indenture of Mortgage and
Security Agreement of even date herewith between the Trustee, as
mortgagee, and Mortgagor, as mortgagor, securing the Senior Guarantee
and evidencing a lien pari passu with this Mortgage.
"Senior Indebtedness" means Indebtedness evidenced by the
Midlantic Term Loan, the Senior Partnership Note, the Senior
Guarantee and the Working Capital Facility and any amendments,
extensions, renewals, replacements or restatements of any of the
foregoing to the extent permitted by the Senior Note Indenture.
"Senior Note Indenture" means that certain indenture of even
date herewith between the Mortgagee, as issuer, the Mortgagor, as
guarantor, and First Bank National Association, as trustee, relating
to the Senior Notes.
(17)
<PAGE>
"Senior Note Mortgage" means this Indenture of Mortgage and
Security Agreement, which evidences a lien pari passu with the Senior
Guarantee Mortgage.
"Senior Notes" means the 11.5% Senior Secured Notes due 2000
issued by the Mortgagee under the Senior Note Indenture.
"Senior Partnership Note" means that certain promissory note of
even date herewith in the original principal amount of $27,000,000
made by the Mortgagor in favor of the Mortgagee, a copy of which is
attached to the Senior Note Indenture, and any amendments,
extensions, renewals, replacements or restatements thereof.
"Settlement Costs" has the meaning set forth in Section 5.17.
"Stated Maturity" when used with respect to any Indebtedness,
means the date specified in such Indebtedness as the fixed date on
which the principal of such Indebtedness is due and payable.
"Superior Instrument Requirements" means the applicable terms,
conditions and provisions of any documentation which constitutes,
evidences, secures or governs any Senior Indebtedness, together with
the terms and provisions of the Marina Lease.
"Superior Mortgage" means the Midlantic Mortgage and any
modification, extension, renewal or restatement thereof which
complies with the provisions of Section 5.19 hereof and with the
Senior Note Indenture.
"Taking" means the acquisition or condemnation by eminent domain
of the whole or any part of the Premises, by a competent authority,
for any public or quasi-public use or purpose.
"Tangible Personal Property" has the meaning set forth
in subclause (f) of Granting Clause Sixth.
"Trust Estate" has the meaning stated in the habendum to the
Granting Clauses.
"Trust Indenture Act" has the meaning set forth in Section 1.1
of the Trust Indenture.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of the Senior Note Indenture and any successor thereto.
(18)
<PAGE>
<PAGE>
"Uniform Commercial Code" means the New Jersey Uniform
Commercial Code N.J.S.A. 12A:1-101, et seq.
"Working Capital Facility" has the meaning set forth in Section
1.1 of the Senior Note Indenture.
"Working Capital Facility Mortgage" means any mortgage or other
security instrument or agreement which secures a Working Capital
Facility and which evidences a lien pari passu with the lien of the
Senior Note Mortgage.
Section 1.2. Notices.
(a) Any request, demand, authorization, direction, notice
(including, without limitation, a notice of default), consent, waiver
or other document provided or permitted by this Mortgage to be made
upon, given or furnished to, or filed with, Mortgagor, Mortgagee or
the Trustee (collectively, "Notices") shall be in writing and shall
be deemed given either (i) when delivered by hand (including by
overnight courier) or (ii) two days after sending by registered or
certified mail, postage prepaid, addressed as follows:
To Mortgagor:
Trump's Castle Associates
Trump's Castle Casino Resort
Brigantine Boulevard and Huron Avenue
Atlantic City, New Jersey 08401
Attn: Chief Financial Officer
and
Willkie Farr & Gallagher
One Citicorp Center
153 East 53rd Street
New York, New York 10022
Attn: Thomas M. Cerabino, Esq.
To Mortgagee:
Trump's Castle Funding, Inc.
Trump's Castle Casino Resort
Brigantine Boulevard and Huron Avenue
Atlantic City, New Jersey 08401
Attn: Chief Financial Officer
and
(19)
<PAGE>
Willkie Farr & Gallagher
One Citicorp Center
153 East 53rd Street
New York, New York 10022
Attn: Thomas M. Cerabino, Esq.
To the Trustee:
First Bank National Association
c/o First Trust National Association
180 East Fifth Street
St. Paul, Minnesota 55101
Attn: Corporate Trust Department
(b) By Notice to Mortgagor, Mortgagee and the Trustee, any
party may designate additional or substitute addresses for Notices
which, notwithstanding Subsection (a) above, shall be deemed given
when received. So long as the Assignment Agreement is in effect, all
Notices to and from Mortgagee shall be given solely to and by the
Trustee.
Section 1.3. Form and Contents of
Documents Delivered to Mortgagee.
Whenever several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary
that all such matters be certified by, or covered by the opinion of,
only one such Person, or that they be so certified or covered by only
one document, but one such Person may certify or give an opinion with
respect to some matters and one or more other such Persons as to
other such matters in one or several documents.
Any certificate or opinion of a general partner of Mortgagor may
be based, insofar as it relates to legal matters, upon a certificate
or opinion of, or representations by, counsel, unless such general
partner knows that the certificate or opinion or representations with
respect to the matters upon which his certificate or opinion is based
are erroneous. Any Opinion of Counsel may be based, insofar as it
relates to factual matters, upon a certificate or opinion of, or
representations by, a general partner of Mortgagor stating that the
information with respect to such factual matters is in the possession
of Mortgagor, unless such counsel knows that the certificate or
opinion or representations with respect to such matters are
erroneous. If appropriate to the matter being opined upon and to the
extent not prohibited by the Senior Note Indenture Act, conclusions
stated in any Opinion of Counsel may be subject to rights of
creditors and the availability of equitable remedies.
Whenever any Person is required to make, give or execute two or
more applications, requests, consents, certificates,
(20)
<PAGE>
statements, opinions or other instruments under this Mortgage, they
may, but need not, be consolidated to form one instrument.
Whenever in this Mortgage, in connection with any application or
certificate or report to Mortgagee, it is provided that Mortgagor
shall deliver any document as a condition of the granting of such
application, or as evidence of Mortgagor's compliance with any term
hereof, it is intended that the truth and accuracy, at the time of
the granting of such application or at the effective date of such
certificate or report (as the case may be), of the facts and opinions
stated in such document shall in such case be conditions precedent to
the right of Mortgagor to have such application granted or to the
sufficiency of such certificate or report.
Every application, certificate, report, affidavit, opinion,
consent, statement or other instrument required to be delivered to
Mortgagee under this Senior Note Mortgage shall be in writing and
shall be prepared and delivered without cost or expense to Mortgagee.
Section 1.4. Compliance Certificates and Opinions.
Upon any application or request by Mortgagor to Mortgagee to
take any action under any provision of this Senior Note Mortgage,
Mortgagor shall furnish to Mortgagee a Mortgagor's Certificate
stating that all conditions precedent, if any, provided for in this
Senior Note Mortgage relating to the proposed action have been
complied with and an Opinion of Counsel stating that in the opinion
of such counsel all such conditions precedent, if any, have been
complied with, except that in the case of any such application or
request as to which the furnishing of such documents is specifically
required by any provision of this Senior Note Mortgage relating to
such particular application or request, no additional certificate or
opinion need be furnished. Every certificate or opinion with respect
to compliance with a condition or covenant provided for in this
Senior Note Mortgage shall include:
(a) a statement that each individual signing such certificate
or opinion has read such condition or covenant and the definitions
herein relating thereto;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(c) a statement that, in the opinion of each such individual,
he has made such examination or investigation as is necessary to
enable him to express an informed opinion as to whether or not such
condition or covenant has been complied with; and
(21)
<PAGE>
(d) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 1.5. Effect of Headings and Table of Contents.
The Article and Section headings herein and in the Table of
Contents are for convenience only and shall not affect the
construction hereof.
Section 1.6. Successors and Assigns; Amendments.
(a) Subject to the provisions of Sections 1.10 and 4.2 hereof
and Sections 3.11 and 8.2 of the Senior Note Indenture, and without
limiting the generality of Section 1.12 hereof, this Mortgage shall
be binding upon and inure to the benefit of the parties hereto and of
the respective successors and assigns of the parties hereto to the
same effect as if each such successor or assign were in each case
named as a party to this Mortgage.
(b) This Senior Partnership Note Mortgage may not be modified,
amended, discharged, released nor any of its provisions waived except
by agreement in writing executed by Mortgagor and Mortgagee and in
accordance with the provisions of this Mortgage and the Senior Note
Indenture.
Section 1.7. Separability Clause.
In case any provision in this Mortgage or the Senior Partnership
Note shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
Section 1.8. Benefits of Mortgage.
Without limiting the generality of Section 1.12, nothing in this
Mortgage or in the Senior Partnership Note, express or implied, shall
give to any Person, other than the parties hereto and their
successors and assigns, any benefit or any legal or equitable right,
remedy or claim under this Mortgage.
Section 1.9. Governing Law.
This Senior Partnership Note Mortgage shall be deemed to be a
contract under the laws of the State of New Jersey and shall be
construed in accordance with and governed by the laws of the State of
New Jersey.
Section 1.10. Limitation on Liability.
Notwithstanding anything herein or in any other agreement,
document, certificate, instrument, statement or omission referred
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to below to the contrary, Mortgagor is liable hereunder only to the
extent of the assets of Mortgagor and no other person or entity,
including, without limitation, any partner, officer, committee or
committee member of Mortgagor or any partner therein or in any
partnership Affiliate of Mortgagor, or any incorporator, officer,
director or shareholder of any corporate partner of Mortgagor or of
any corporate Affiliate of Mortgagor, or any Affiliate or controlling
person or entity of any of the foregoing, or any agent, employee, or
lender of any of the foregoing, or any successor, personal
representative, heir or assign of any of the foregoing, in each case
past, present or as they may exist in the future, shall be liable in
any respect (including, without limitation, the breach of any
representation, warranty, covenant, agreement, condition or
indemnification or contribution undertaking contained herein or
therein) under, in connection with, arising out of or relating to
this Senior Note Mortgage, or any other agreement, document,
certificate, instrument or statement (oral or written) related to,
executed or to be executed, delivered or to be delivered, or made or
to be made, or any omission made or to be made, in connection with
any of the foregoing or any of the transactions contemplated in any
such agreement, document, certificate, instrument, or statement. Any
agreement, document, certificate, statement or other instrument to be
executed simultaneously with, in connection with, arising out of or
relating to this Mortgage or any other agreement, document,
certificate, statement or instrument referred to above, or any
agreement, document, certificate, statement or instrument
contemplated hereby shall contain language mutatis mutandis to this
Section 1.10 and, if such language is omitted, shall be deemed to
contain such language.
Section 1.11. Provisions Required by Senior Note Indenture.
Whenever the provisions of this Senior Note Mortgage and the
provisions of the Senior Note Indenture shall be inconsistent, the
provisions of the Senior Note Indenture shall govern.
Section 1.12. References to Mortgagee
and/or to Trustee; Rights of Trustee.
(a) Whenever reference is made in this Mortgage to the rights,
powers and remedies of Mortgagee or to Notices to or by Mortgagee,
the same shall apply to Trump's Castle Funding, Inc. only so long as
Trump's Castle Funding, Inc. is the holder of this Mortgage and the
Senior Partnership Note. Subsequent to the assignment thereof on the
date of and pursuant to the Senior Assignment Agreement by Trump's
Castle Funding, Inc. to the Trustee (who shall have and hold all such
rights, powers and remedies on behalf of the Holders in accordance
with the terms of the Senior Note Indenture) and for so long as there
shall not have been effected a cancellation and discharge of the
assignment pursuant to Article V of the Senior Assignment Agreement,
such
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rights, powers and remedies of Mortgagee and any Notices to or by
Mortgagee, shall apply only to the Trustee with the same force and
effect as if (i) such rights, powers and remedies were specifically
granted by this Senior Note Mortgage and the Senior Partnership Note
directly to the Trustee and (ii) the Trustee were the named Mortgagee
with respect to the giving and receiving of Notices under Section
1.2. Upon such assignment of this Senior Note Mortgage, the Trustee
shall be named in lieu of Trump's Castle Funding, Inc., as a named
insured under the policies of insurance set forth in Section 5.10
hereof (except that with respect to the policy described in Section
5.10(a)(iii) of this Mortgage, Trump's Castle Funding, Inc. may, at
Mortgagor's election, be named as an additional insured).
(b) So long as there shall not have been effected a
cancellation and discharge of the assignment pursuant to Article V of
the Senior Assignment Agreement, except as otherwise provided in
Section 6.2 of the Senior Note Indenture:
(1) Mortgagee may rely, and shall be protected in acting
or refraining from acting, upon any resolution, certificate,
statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence
of indebtedness or other paper or document believed by it to be
genuine and to have been signed or presented by the proper party
or parties;
(2) any request or direction of Mortgagor mentioned herein
shall be sufficiently evidenced by a Mortgagor Request or
Mortgagor Order;
(3) whenever in the administration of this Mortgage,
Mortgagee shall deem it desirable that a matter be proved or
established prior to taking, suffering or omitting any action
hereunder, Mortgagee (unless other evidence be herein
specifically prescribed) may, in the absence of bad faith on its
part, rely upon a Mortgagor's Certificate;
(4) Mortgagee may consult with counsel and any written
advice of such counsel or any Opinion of Counsel shall be full
and complete authorization and protection in respect of any
action taken, suffered or omitted by Mortgagee hereunder in good
faith and in reliance thereon;
(5) Mortgagee shall be under no obligation to exercise any
of the rights or powers vested in it by this Mortgage at the
request or direction of any of the Holders pursuant to the
Senior Note Indenture, unless such Holders shall have offered to
Mortgagee reasonable security or indemnity against the costs,
expenses and liabilities which might be incurred therein or
thereby in compliance with such request or direction;
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(6) Mortgagee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request,
direction, consent, order, approval, appraisal, bond, debenture,
note, coupon, security or other paper or document but Mortgagee,
in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit, and,
if Mortgagee shall determine to make such further inquiry or
investigation, it shall be entitled (subject to the express
limitations with respect thereto contained in this Senior Note
Mortgage) to examine the books, records and premises of
Mortgagor, personally or by agent or attorney;
(7) Mortgagee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by
or through agents or attorneys, and Mortgagee shall not be
responsible for any misconduct or negligence on the part of any
agent or attorney appointed with due care by it hereunder;
(8) Mortgagee shall not be personally liable, in case of
entry by it upon the Trust Estate, for debts contracted or
liabilities or damages incurred in the management or operation
of the Trust Estate;
(9) Mortgagor shall pay or cause to be paid to the Trustee
all compensation and other amounts provided in Section 6.6 of
the Senior Note Indenture; and
(10) no provision of this Mortgage shall require Mortgagee
to expend or risk its own funds or otherwise incur any financial
liability in the performance of its obligations hereunder, or in
the exercise of any of its rights or powers.
(c) The provisions of Section 1.12(a) shall apply to all
Mortgage Documents executed in favor of Trump's Castle Funding, Inc.
The provisions of Section 1.12(b) shall apply to all Mortgage
Documents.
Section 1.13. Mortgage Subject to Casino Control Act.
Each provision of this Senior Note Mortgage is subject to and
shall be enforced in compliance with the provisions of the New Jersey
Casino Control Act.
Section 1.14. Discharge of Lien.
If (a) Mortgagor shall pay or cause to be paid, or there shall
otherwise be paid, to Mortgagee all amounts required to be
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paid by Mortgagor pursuant to this Mortgage and the Senior Note and
the conditions precedent for the Senior Note Indenture to cease,
determine and become null and void (except for any surviving rights
of transfer or exchange of the Senior Secured Notes provided in
Section 13.1 of the Senior Note Indenture and for the obligation to
pay the Trustee's fees and expenses provided in Section 6.6 of the
Senior Note Indenture) in accordance with Section 13.1 of the Senior
Note Indenture shall have occurred, or (b) there shall have occurred
a "defeasance" (as defined in Section 4.2 of the Senior Note
Indenture) of the Mortgage Senior Secured Notes, or (c) there shall
have occurred a "covenant defeasance" (as defined in Section 4.3 of
the Trust Indenture), then in any such case Mortgagee shall promptly
cancel and discharge this Mortgage, and any financing statements
filed in connection herewith and execute and deliver to Mortgagor all
such instruments as may be necessary, required or appropriate to
evidence such discharge and satisfaction of said lien or liens.
Section 1.15. General Application.
(a) The remedies of Mortgagee upon any default by Mortgagor in
the fulfillment of any of its obligations hereunder shall be limited
in each instance by the provisions of Section 1.10, whether or not
the provisions providing for such remedies explicitly refer to such
Section.
(b) The assertion of any rights upon any Default shall be
subject in each instance to, if required, the giving of any notice
and the expiration of any grace period provided for in Section 3.1 as
a condition to such Default becoming an Event of Default, unless the
Senior Note Indenture Act requires otherwise, in which case the
Senior Note Indenture Act shall control.
(c) For the purposes of this Senior Note Mortgage, it is
understood that an event which does not materially diminish the value
of Mortgagee's interest in the Trust Estate shall not be deemed an
"impairment of security," as that phrase is used in this Mortgage.
Section 1.16. Senior Note Mortgage Deemed to be Security Agreement.
To the extent that the grant of a security interest in any
portion of the Trust Estate is governed by the Uniform Commercial
Code, this Senior Note Mortgage is hereby deemed to be as well a
security agreement under the Uniform Commercial Code for the purpose
of creating hereby a security interest in all of Mortgagor's right,
title and interest in and to said property, securing the obligations
secured hereby, for the benefit of Mortgagee.
Section 1.17. No Duplication of Notices or Payments.
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Whenever it is provided in this Senior Note Mortgage and the
Senior Guarantee Mortgage that Mortgagor shall deliver any notice or
document, or is required to make any payment, the delivery of such
notice or document or the making of such payment shall constitute the
delivery of such notice or document or the making of such payment in
satisfaction of the terms, conditions and provisions of both this
Senior Note Mortgage and the Senior Guarantee Mortgage, provided that
such notice, document or payment states, or is accompanied by a
letter stating, that such notice, document or payment is being
delivered in satisfaction of the terms, conditions and provisions of
both this Mortgage and the Guarantee Mortgage.
ARTICLE TWO
RELEASE; SUBORDINATION
Section 2.1. Possession by Mortgagor.
So long as there shall have been no acceleration of maturity of
the Senior Partnership Note under Section 3.2, Mortgagor shall be
suffered and permitted, with power freely and without let or
hindrance on the part of Mortgagee, subject to the provisions of this
Mortgage and the Senior Note Indenture, to possess, use, manage,
operate and enjoy the Trust Estate and every part thereof and to
collect, receive, use, invest and dispose of the rents, issues,
tolls, profits, revenues and other income from the Trust Estate or
any part thereof, to use, consume and dispose of any consumables,
goods, wares and merchandise in the ordinary course of business of
operating the Casino Hotel and to adjust and settle all matters
relating to choses in action, leases and contracts.
Section 2.2. Obsolete Property.
Mortgagor shall have the right, at any time and from time to
time, unless an Event of Default shall have occurred and be
continuing, without any release from or consent by Mortgagee:
(a) to sell or dispose of, free from the lien of this Mortgage,
any Tangible Personal Property which, in its reasonable opinion, may
have become obsolete or unfit for use or which is no longer necessary
in the conduct of its businesses or the operation of the Trust
Estate, and no purchaser of any such property shall be bound to
inquire into any question affecting Mortgagor's right to sell or
otherwise dispose of the same free from the lien of this Mortgage;
(b) to alter, repair, replace, change the location or position
of and add to any Tangible Personal Property; provided, however, that
no change shall be made in the location of any such
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property subject to the lien of this Mortgage which would in any
respect impair the security of this Mortgage upon such property; or
(c) to renew, extend, surrender, terminate, modify or amend any
leases of Tangible Personal Property, when, in Mortgagor's reasonable
opinion, it is prudent to do so.
Mortgagor shall retain any net cash proceeds received from the
sale or disposition of any Tangible Personal Property under
Subsection (a) of this Section 2.2, in the business of operating the
Casino Hotel.
Mortgagee shall be under no responsibility or duty with respect
to the exercise of the rights of Mortgagor under this Section 2.2 or
the application of the proceeds of any sale or disposition of any
Tangible Personal Property.
Mortgagee shall, from time to time, promptly execute any written
instrument in form satisfactory to Mortgagee to confirm the propriety
of any action taken by Mortgagor under this Section 2.2, upon receipt
by Mortgagee of a Mortgagor Request requesting the same, together
with a Mortgagor's Certificate stating that the action so to be
confirmed was duly taken in conformity with this Section 2.2, and
that the execution of such written instrument is appropriate to
confirm the propriety of such action under this Section 2.2;
provided, that Mortgagee shall have no liability thereunder and all
costs and expenses (including, without limitation, reasonable
attorneys' fees and disbursements) shall be paid by Mortgagor.
Section 2.3. F,F&E Financing Agreements.
Notwithstanding any provision contained in this Mortgage or the
Senior Note Indenture to the contrary, if Mortgagor acquires Tangible
Personal Property and/or other items constituting operating assets
subject to any F,F&E Financing Agreement, or becomes the lessee under
a lease for any of the same and if the document evidencing such F,F&E
Financing Agreement prohibits subordinate liens or the provisions of
any such lease prohibits any assignment thereof by the lessee, and if
any such prohibition is customary with respect to similar
transactions of the lender or lessor (as evidenced by a Mortgagor's
Certificate delivered to Mortgagee, together with such other evidence
as Mortgagee may reasonably request), as the case may be, then the
property so purchased or the lessee's interest in the lease, as the
case may be, shall be deemed to be Excepted Property. If any such
F,F&E Financing Agreement permits subordinate liens, then Mortgagee
shall execute and deliver to Mortgagor, at Mortgagor's expense, such
documents as the holder of such F,F&E Financing Agreement may
reasonably request to evidence the subordination of the lien of this
Mortgage and the Mortgage Documents to the lien of such
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F,F&E Financing Agreement; provided, however, that Mortgagee shall
have no obligation to execute and deliver such documents, and the
lien of this Mortgage shall not be subordinate to any such F,F&E
Financing Agreement, unless (a) such F,F&E Financing Agreement shall
contain a provision binding upon the holder of such F,F&E Financing
Agreement that (i) if the holder of such F,F&E Financing Agreement
shall give to Mortgagor any notice of default thereunder, such holder
shall at the same time and in the same manner serve a copy of such
notice on Mortgagee at the address designated herein (or such other
address as Mortgagee may designate by notice given to the holder of
such F,F&E Financing Agreement in the manner provided for notices
hereunder), and that no such notice to Mortgagor shall be deemed to
have been duly given unless and until a copy thereof has been so
provided to Mortgagee, and (ii) promptly following the last date upon
which Mortgagor may cure such default, if Mortgagor shall fail to
cure such default, the holder of such F,F&E Financing Agreement shall
give notice to Mortgagee stating the manner in which Mortgagor shall
have failed to cure its said default, in which event Mortgagee shall
be permitted to cure the default and, with respect thereto, Mortgagee
shall have the same amount of time, after such notice, within which
to cure the said default, as is provided for under the provisions of
such F,F&E Financing Agreement to be given to Mortgagor therefor
after notice or (b) Mortgagor delivers to Mortgagee a Mortgagor's
Certificate certifying that (i) the provision described in clause (a)
is not customarily included by the lender or lessor in its F,F&E
Financing Agreements in similar transactions and (ii) although
Mortgagor has used reasonable efforts to have included in such F,F&E
Financing Agreement such a provision, Mortgagor has been unsuccessful
in obtaining such a provision.
ARTICLE THREE
REMEDIES
Section 3.1. Events of Default.
"Event of Default," whenever used herein, means any one of the
following events (including any applicable notice requirement and any
period of grace, as specified in this Section 3.1) (whatever the
reason for such event and whether it shall be voluntary or
involuntary or be effected by operation of law or pursuant to any
judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body):
(a) default in the payment of any interest on the Senior
Partnership Note when such interest becomes due and payable and
continuance of such default for a period of 30 days; or
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(b) default in the payment of all or any portion of the
principal of (or premium, if any, on) the Senior Partnership Note
when the same becomes due and payable at its Maturity; or
(c) default in the payment of any other sum due under the
Senior Partnership Note or this Senior Note Mortgage, and the
continuance of such default for a period of 30 days after there has
been given to Mortgagor a notice specifying such default and
requiring it to be remedied and stating that such notice is a "Notice
of Default" hereunder; or
(d) default in the performance, or breach, of any
covenant of Mortgagor in this Senior Note Mortgage (other than a
covenant, a default in the performance or breach of which is
elsewhere in this Section 3.1 specifically dealt with), and
continuance of such default or breach for a period of 30 days after
there has been given to Mortgagor a notice specifying such default or
breach and requiring it to be remedied and stating that such notice
is a "Notice of Default" hereunder, unless (i) the default or breach
is of such a nature that is curable but not susceptible of being
cured with due diligence within such 30-day period (for reasons other
than the lack of funds), (ii) Mortgagor delivers an Mortgagor's
Certificate to Mortgagee within such 30-day period stating (A) the
applicability of the provisions of clause (i) to such default or
breach, (B) Mortgagor's intention to remedy such default or breach
with reasonable diligence and (C) the steps which Mortgagor has
undertaken or intends to undertake to remedy such default or breach
and (iii) Mortgagor delivers to Mortgagee additional Mortgagor's
Certificates every 30 days thereafter updating the information
contained in the certificate described in clause (ii), in which case
such 30-day period shall be extended for such further period of time
(but in no event more than 60 days after the last day of such 30-day
period) as may reasonably be required to cure the same, provided that
Mortgagor is then proceeding and thereafter continues to proceed to
cure the same with reasonable diligence; or
(e) an "Event of Default," as defined in Section 5.1 of the
Senior Note Indenture, shall occur and be continuing; or
(f) default by the Partnership, the Issuer or any of the
Subsidiaries under any Indebtedness, whether such Indebtedness now
exists or shall hereafter be created, if such default would permit
the holders of such Indebtedness to cause, or has resulted in,
acceleration of the maturity of such Indebtedness, in an aggregate
principal amount in excess of $5,000,000;
(g) default in the performance, or breach, of any of the
provisions of Article Four hereof; or
(h) if any representation or warranty of Mortgagor set forth in
this Senior Note Mortgage or in any notice, certificate,
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demand or request delivered to Mortgagee pursuant to this Mortgage
shall prove to be incorrect in any material respect as of the time
when made.
An Event of Default shall not be deemed to exist by reason of
any event which Mortgagor is contesting in compliance with the
provisions of Section 5.8.
Section 3.2. Acceleration of Maturity;
Recision and Annulment.
If an Event of Default (other than an Event of Default specified
in Section 5.1(f) or (g) of the Senior Note Indenture) occurs and is
continuing, then, and in every such case, Mortgagee may declare the
Outstanding Amount of the Senior Partnership Note to be due and
payable immediately, by a notice in writing to Mortgagor and upon any
such declaration such principal shall become immediately due and
payable. If an Event of Default specified in such Section 5.1(f) or
(g) occurs, the Outstanding Amount of the Senior Partnership Note
shall ipso facto become due and payable without any declaration or
other act on the part of the Mortgagee.
If at any time after such declaration of acceleration has been
made, but before any judgment or decree for payment of money due on
the Senior Partnership Note has been obtained by the Mortgagee, such
declaration of acceleration and its consequences has been duly
rescinded and annulled in accordance with Section 5.2 of the Senior
Note Indenture, then the declaration of acceleration pursuant to this
Section 3.2 shall automatically be rescinded and annulled.
No such rescission and annulment shall affect any subsequent
default or impair any right consequent thereon.
Section 3.3. Application of Moneys Received by Mortgagee.
Any moneys received by Mortgagee pursuant to the provisions of
this Article Three (including moneys received by the Trustee after
any action or act by Mortgagee under Section 3.10) shall be applied
by Mortgagee in accordance with the provisions of Section 5.6 of the
Senior Note Indenture.
Section 3.4. Restoration of Rights and Remedies.
If Mortgagee has instituted any proceeding to enforce any right
or remedy under this Senior Note Mortgage and such proceeding has
been discontinued or abandoned for any reason or has been determined
adversely to Mortgagee, then and in every such case Mortgagor and
Mortgagee shall, subject to any determination in such proceeding, be
restored to their respective former positions hereunder, and
thereafter all rights and
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remedies of Mortgagee shall continue as though no such proceeding had
been instituted.
Section 3.5. Rights and Remedies Cumulative.
No right or remedy herein conferred upon or reserved to
Mortgagee is intended to be exclusive of any other right or remedy,
and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given
hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion
or employment of any other appropriate right or remedy.
Section 3.6. Delay or Omission Not Waiver.
No delay or omission of Mortgagee to exercise any right or
remedy accruing upon an Event of Default shall impair any such right
or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this Article
Three or by applicable law to Mortgagee may be exercised, from time
to time, and as often as may be deemed expedient, by Mortgagee.
Section 3.7. Undertaking for Costs.
If any action or proceeding shall be commenced (including,
without limitation, an action to foreclose this Mortgage or to
collect the indebtedness secured hereby) to which action or
proceeding Mortgagee is made or becomes a party, or in which it
becomes necessary in the opinion of Mortgagee to defend or uphold the
lien of this Senior Note Mortgage, Mortgagor shall pay to Mortgagee
all expenses, including, without limitation, reasonable attorneys'
fees, disbursements and court costs incurred by Mortgagee in
connection therewith, together with interest at the rate then payable
on the Senior Partnership Note, from the date of payment less the net
amount received by Mortgagee or the Trustee, as their interests may
appear under any title insurance policy, and, until paid, all such
expenses, together with interest as aforesaid, shall be secured by
the lien of this Mortgage.
Section 3.8. Waiver of Appraisement and Other Laws.
To the full extent that it may lawfully so agree, Mortgagor will
not at any time insist upon, plead, claim or take the benefit or
advantage of, any appraisement, valuation, stay, extension or
redemption law now or hereafter in force, in order to prevent or
hinder the enforcement of this Mortgage or the absolute sale of the
Trust Estate, or any part thereof, or the possession thereof by any
purchaser at any sale under this Article Three; and Mortgagor, for
itself and all who may claim
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under Mortgagor, so far as Mortgagor or they now or hereafter may
lawfully do so, hereby waives the benefit of all such laws.
Mortgagor, for itself and all who may claim under Mortgagor, waives,
to the extent that Mortgagor may lawfully do so, all right to have
the property in the Trust Estate marshalled upon any foreclosure
hereof, and agrees that any court having jurisdiction to foreclose
this Mortgage may order the sale of the Trust Estate as an entirety.
If any law in this Section 3.8 referred to and now in force, of
which Mortgagor or its successor or successors might take advantage
despite this Section 3.8, shall hereafter be repealed or cease to be
in force, such law shall not thereafter be deemed to constitute any
part of the contract herein contained or to preclude the application
of this Section 3.8.
Section 3.9. Entry.
Mortgagor agrees that upon the occurrence, and during the
continuance, of an Event of Default, Mortgagor, upon demand of
Mortgagee, shall forthwith surrender to Mortgagee the actual
possession of, and it shall be lawful for Mortgagee by such officers
or agents as it may appoint to enter and take possession of, the
Trust Estate (and the books and papers of Mortgagor), and to hold,
operate and manage the Trust Estate (including the making of all
needful repairs, and such alterations, additions and improvements as
Mortgagee shall deem wise) and to receive the rents, issues, tolls,
profits, revenues and other income thereof, and, after deducting the
costs and expenses of entering, taking possession, holding, operating
and managing the Trust Estate, as well as payments for taxes,
insurance and other proper charges upon the Trust Estate and
reasonable compensation to itself, its agents and counsel, to apply
the same as provided in Section 3.3; provided, however, that
Mortgagee's rights under this Section 3.9 shall be subject to the
provisions of the New Jersey Casino Control Act and Section 3.14.
Whenever all that is then due upon the Senior Partnership Note and
under any of the terms of this Mortgage shall have been paid and all
defaults hereunder shall have been cured, Mortgagee shall surrender
possession to Mortgagor.
Section 3.10. Power of Sale; Suits for Enforcement.
If an Event of Default shall occur and be continuing, Mortgagee,
with or without entry, in its discretion, may:
(a) sell, subject to any mandatory requirements of applicable
law, the Trust Estate as an entirety, or in such parcels, as
Mortgagee may determine, to the highest bidder at public auction at
such place and at such time (which sale may be adjourned by Mortgagee
from time to time in its discretion by announcement at the time and
place fixed for such sale, without
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further notice) and upon such terms as Mortgagee may fix and briefly
specify in a notice of sale to be published as required by law; or
(b) proceed to protect and enforce its rights under this
Mortgage by sale pursuant to judicial proceedings or by a suit,
action or proceeding in equity or at law or otherwise, whether for
the specific performance of any covenant or agreement contained in
this Mortgage or in aid of the execution of any power granted in this
Mortgage or for the foreclosure of this Mortgage or for the
enforcement of any other legal, equitable or other remedy, as
Mortgagee shall deem most effectual to protect and enforce any of the
rights of Mortgagee; the failure to join tenants shall not be
asserted as a defense to any foreclosure or proceeding to enforce the
rights of Mortgagee.
Section 3.11. Incidents of Sale.
Upon any sale of any of the Trust Estate, whether made under the
power of sale hereby given or pursuant to judicial proceedings, to
the extent permitted by law:
(a) the principal of and accrued interest on the Senior
Partnership Note, if not previously due, shall at once become and be
immediately due and payable;
(b) subject to the provisions of Section 3.14 and the receipt
of any required prior approvals of the New Jersey Casino Control
Commission, Mortgagee may bid for and purchase the property offered
for sale, and upon compliance with the terms of sale may hold,
retain, possess and dispose of such property, without further
accountability, and may, in paying the purchase money therefor,
deliver the Senior Partnership Note or claims for interest thereon in
lieu of cash to the amount which shall, upon distribution of the net
proceeds of such sale, be payable thereon, and the Senior Partnership
Note, in case the amounts so payable thereon shall be less than the
amount due thereon, shall be returned to Mortgagee after being
appropriately stamped to show partial payment;
(c) Mortgagee may make and deliver to the purchaser or
purchasers a good and sufficient deed, bill of sale and instrument of
assignment and transfer of the property sold;
(d) Mortgagee is hereby irrevocably appointed the true and
lawful attorney of Mortgagor, in its name and stead, to make all
necessary deeds, bills of sale and instruments of assignment and
transfer of the property thus sold; and for that purpose it may
execute all necessary deeds, bills of sale and instruments of
assignment and transfer, and may substitute one or more persons,
firms or corporations with like power, Mortgagor hereby ratifying and
confirming all that its said attorney or such substitute or
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substitutes shall lawfully do by virtue hereof; but if so requested
by Mortgagee or by any purchaser, Mortgagor shall ratify and confirm
any such sale or transfer by executing and delivering to Mortgagee or
to such purchaser or purchasers all proper deeds, bills of sale,
instruments of assignment and transfer and releases as may be
designated in any such request;
(e) all right, title, interest, claim and demand whatsoever,
either at law or in equity or otherwise, of Mortgagor of, in and to
the property so sold shall be divested and such sale shall be a
perpetual bar both at law and in equity against Mortgagor, its
successors and assigns, and against any and all persons claiming or
who may claim the property sold or any part thereof from, through or
under Mortgagor, its successors and assigns; and
(f) the receipt of Mortgagee or of the officer making such sale
shall be a sufficient discharge to the purchaser or purchasers at
such sale for his or their purchase money and such purchaser or
purchasers and his or their assigns or personal representatives shall
not, after paying such purchase money and receiving such receipt, be
obliged to see to the application of such purchase money, or be in
anywise answerable for any loss, misapplication or non-application
thereof.
Section 3.12. Receiver.
Upon the occurrence of an Event of Default and commencement of
judicial proceedings by Mortgagee to enforce any right under this
Mortgage, Mortgagee shall be entitled, as against Mortgagor, without
notice or demand and without regard to the adequacy of the security
for the Senior Partnership Note or the solvency of Mortgagor, to the
appointment of a receiver of the Trust Estate, and of the rents,
issues, profits, revenues and other income thereof; provided,
however, that Mortgagee's rights under this Section 3.12 shall be
subject to the provisions of the New Jersey Casino Control Act and
Section 3.14 hereof.
Section 3.13. Suits to Protect the Trust Estate.
Mortgagor hereby acknowledges the right of Mortgagee, in the
name and on behalf of Mortgagor, (a) to appear in and defend any
action or proceeding brought with respect to the Trust Estate or any
part thereof and (b) upon 5 days' prior notice to Mortgagor (or such
shorter period or without notice if deemed necessary and appropriate
by Mortgagee), to institute and to maintain such proceedings as
Mortgagee may deem necessary and appropriate, but in the case of (a)
and (b) only to prevent any impairment of security or any impairment
of the Trust Estate by any acts which may be unlawful or in violation
of this Mortgage and to protect Mortgagee's interests in the Trust
Estate and in the rents, issues, profits, revenues and other income
arising therefrom,
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including the right to institute and maintain proceedings to restrain
the enforcement of or compliance with any governmental enactment,
rule or order that may be unconstitutional or otherwise invalid, if
the enforcement of or compliance with such enactment, rule or order
would impair the security hereunder or be materially prejudicial to
the interests of Mortgagee.
Section 3.14. Management of the Premises.
Without limiting the generality of any other provision of this
Article Three, following an Event of Default and the taking of
possession of the Trust Estate or any part thereof by Mortgagee
and/or the appointment of a receiver of the Trust Estate or any part
thereof, Mortgagee or any such receiver shall be authorized, in
addition to the rights and powers of Mortgagee and such receiver set
forth elsewhere in this Mortgage, to take any action permitted under
Section 5.17 of the Senior Note Indenture.
ARTICLE FOUR
CONSOLIDATION, MERGER, CONVEYANCE,
TRANSFER OR LEASE
Section 4.1. Consolidation, Merger, Conveyance
or Transfer only on Certain Terms.
Mortgagor shall comply with all provisions applicable to
Mortgagor in Article Eight of the Senior Note Indenture.
Section 4.2. Successor Entity Substituted.
Upon any consolidation or merger, or any sale, assignment,
conveyance, transfer or disposition of the Trust Estate or any
portion thereof in accordance with Section 8.1 of the Senior Note
Indenture (other than a lease), the successor Person formed by such
consolidation or into which Mortgagor is merged or the successor
Person to which such sale, assignment, conveyance, transfer or
disposition is made shall succeed to, and be substituted for, and may
exercise every right and power of, Mortgagor under this Mortgage with
the same effect as if such successor had been named as Mortgagor
herein; and thereafter, except in the case of a lease, the Person
named as "Mortgagor" in the first paragraph of this instrument or any
successor Person which shall theretofore have become such in the
manner prescribed in this Article shall be discharged from all
obligations and covenants under this Mortgage.
ARTICLE FIVE
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COVENANTS AND REPRESENTATIONS OF MORTGAGOR
Section 5.1. Payment of Principal, Premium and Interest.
Mortgagor shall duly and punctually pay the principal of (and
premium, if any) and interest on the Senior Partnership Note in
accordance with the terms of the Senior Partnership Note and this
Mortgage.
Section 5.2. F,F&E Financing Agreements.
Mortgagor shall comply with all of the terms and conditions set
forth in any F,F&E Financing Agreements before the expiration of any
applicable notice and cure periods contained in the F,F&E Financing
Agreements.
Section 5.3. Limitations on Liens and Transfers.
(a) Mortgagor shall not create, incur, suffer or permit to be
created or incurred or to exist any mortgage, lien, charge or
encumbrance on or pledge of any of the Trust Estate, other than (i)
Permitted Encumbrances, (ii) a notice of intention filed by a
mechanic, materialman or laborer under the New Jersey mechanic's lien
law, and (iii) a building contract filed by a contractor or
subcontractor under the New Jersey mechanic's lien law. Without
limiting the generality of the foregoing sentence but notwithstanding
the provisions of the foregoing sentence, Mortgagor shall not be
deemed to have breached the provisions of the foregoing sentence by
virtue of the existence of a lien for Impositions or mechanics' liens
so long as Mortgagor is in good faith contesting the validity of the
same in accordance with the provisions of Section 5.8.
(b) The lien of this Mortgage on the date hereof shall be
subject and subordinate to the lien of any Existing Encumbrances to
the extent that each thereof encumbers Mortgagor's interest in the
Trust Estate or any part thereof. The foregoing provisions of this
Section 5.3(b) shall be self-operative and no further instrument
shall be required to give effect to such subordination. Mortgagee
shall, however, from time to time, after receipt of a Mortgagor
Request therefor (accompanied by a Mortgagor's Certificate stating
that said conditions have been satisfied) execute instruments in form
and substance reasonably satisfactory to the holder of a particular
Superior Mortgage confirming such subordination.
(c) Except as otherwise expressly permitted under this Mortgage
and the Senior Note Indenture (including, without limitation, Article
Eight of the Senior Note Indenture), Mortgagor shall not sell,
assign, lease or otherwise transfer all or any portion of the Trust
Estate or any interest therein. Notwithstanding the foregoing,
Mortgagor shall have the right, at
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any time and from time to time, unless an Event of Default shall have
occurred and be continuing, without any release from or consent by
Mortgagee, to grant interests in the Owned Land in the nature of
rights-of-way or easements, or other rights or privileges in the
nature of easements; provided, (i) that none of the same will reduce
or impair, in any material respect, (A) the value or usefulness of
the Trust Estate or any part thereof or (B) the normal operation of
the Casino Hotel in accordance with all Legal Requirements and all
Permits, (ii) Mortgagor has delivered to Mortgagee a Mortgagor's
Certificate, dated not earlier than 10 days prior to the date of each
such grant, certifying that (A) no Event of Default has occurred and
is continuing and (B) the conditions set forth in this Section 5.3(c)
for such grant have been fulfilled and (iii) Mortgagor has delivered
to Mortgagee a duplicate original of the instrument, if any, pursuant
to which such grant is to be made, and such other instruments,
certificates and opinions as Mortgagee may reasonably request. The
foregoing provisions of this Section 5.3(c) shall be self-operative
and no further instrument shall be required to evidence the consent
of Mortgagee to the grant or other conveyance of such rights-of-way
or easements. Mortgagee shall, however, from time to time, after
receipt of a Mortgagor Request therefor (accompanied by a Mortgagor's
Certificate stating that said conditions have been satisfied) execute
instruments in form and substance reasonably satisfactory to
Mortgagee confirming the permissibility of such grant or other
conveyance.
Section 5.4. Environmental.
Without limiting the generality of any other provision of this
Mortgage, Mortgagor covenants, represents and warrants to Mortgagee
as follows:
(a) Mortgagor shall comply with any and all federal, state and
local environmental legislation, rules, and regulations in effect as
of the date of this Mortgage and subsequent thereto, including,
without limitation, the Spill Compensation and Control Act (N.J.S.A.
58:10-23. 11 et seq.) (the"Spill Act"); the Industrial Site Recovery
Act (N.J.S.A. 13:1K-6 et seq.) ("IRSA"); the Solid Waste Management
Act (N.J.S.A. 13:E-1 et seq.); the Resource, Conservation and
Recovery Act (42 U.S.C. Section 6901 et seq.) ("RCRA"); the
Comprehensive Environmental Response, Compensation and Liability Act
(42 U.S.C. Section 9601 et seq.) ("CERCLA") and such other
environmental legislation, rules and regulations, as are in or may
come into effect and apply to (i) Mortgagor and/or Mortgagee with
respect to the Premises or (ii) the transactions contemplated hereby,
and as to any occupants or users of the collateral, whether as
lessees, tenants, licensees or otherwise, Mortgagor shall use its
best efforts to cause same to comply with said legislation, rules and
regulations.
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Mortgagor agrees to pay all costs required in connection with
compliance with the foregoing legislation, rules and regulations.
(b) Mortgagor has not used in the past, nor shall Mortgagor use
in the future, the Premises for the purpose of refining, producing,
storing, handling, transferring, processing or transporting
"Hazardous Substances", as such term is defined in IRSA, the Spill
Act, CERCLA or the regulations relating thereto, except that
Mortgagor and its subsidiaries have used, and Mortgagor may continue
in the future to use, substances in the operation and maintenance of
the Premises, including, without limitation, heating oil, gasoline
and cleaning chemicals which could be considered as "Hazardous
Substances" under the preceding definition.
(c) To the best of Mortgagor's knowledge, after due inquiry and
investigation, none of the real property owned, leased and/or
occupied by Mortgagor and located in the State of New Jersey,
including, without limitation, the Premises, has been or is now being
used as a "Major Facility" as such term is defined in N.J.S.A.
58:10-23.11b(1). Mortgagor will not use the Premises in the future
as a "Major Facility".
(d) To the best of Mortgagor's knowledge, after due inquiry and
investigation, no lien has been attached to any revenues or any real
or personal property owned by Mortgagor or the Premises, as a result
of the Chief Executive of the New Jersey Spill Compensation Fund
expending monies from said fund to pay for "Cleanup Costs", as such
term is defined in N.J.S.A. 58:10-23.11b(d), arising from an
intentional or unintentional action or omission of Mortgagor or any
previous owner and/or operator of such real property.
(e) There is no asbestos or asbestos containing material on the
Premises. To the best of Mortgagor's knowledge, there are no
underground storage tanks located at the Premises, other than those
tanks previously disclosed to Mortgagee and which are maintained in
accordance with all material Legal Requirements. Mortgagor has not
installed or placed, or permitted to be installed or placed, any
underground storage tanks at or on the Premises, other than those
tanks previously disclosed to Mortgagee and which are maintained in
accordance with all material Legal Requirements. Underground storage
tanks shall have the definition as set forth in N.J.S.A.
58:10A-22(p).
(f) Mortgagor has not received a summons, citation, directive,
letter, other written communication, or, to the best of its
knowledge, any oral communication, from the New Jersey Department of
Environmental Protection and Energy or from any other person, firm or
corporation concerning any intentional or unintentional action or
omission on Mortgagor's part resulting in the releasing, spilling,
leaking, pumping, pouring, emitting,
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emptying or dumping of "Hazardous Substances", as such term is
defined in N.J.S.A. 58:10-23.11b(k), into the waters or onto the
lands of the State of New Jersey, or into the waters outside the
jurisdiction of the State of New Jersey, in either case resulting in
damage to the lands, waters, fish, shellfish, wildlife, biota, air
and other resources owned, managed, held in trust or otherwise
controlled by the State of New Jersey.
(g) In connection with any purchase of the Premises or any
business or assets located thereon or any "closing, terminating or
transferring operations" of any "industrial establishment", as that
term is defined in ISRA, occurring on or after December 31, 1983,
Mortgagor required that the owner and or operator of the industrial
establishment comply with the provisions of ECRA and the owner and or
operator did comply therewith.
(h) Upon the occurrence of an Event (as hereinafter defined),
Mortgagee shall have the right to have its consultants perform a
comprehensive environmental audit of the Premises. Such audit shall
be conducted by an environmental consultant chosen by Mortgagee and
may include a visual survey, a record review, an area reconnaissance
assessing the presence of hazardous or toxic waste or substances,
PCBs or storage tanks at the Premises, an asbestos survey of the
Premises, which may include random sampling of the improvements and
air quality testing, and such further site assessments as Mortgagee
may reasonably require due to the results obtained from the
foregoing. Mortgagor grants Mortgagee, its agents, consultants and
contractors the right to enter the Premises for the purposes of
performing such studies and the cost of such studies shall be due and
payable by Mortgagor to Mortgagee upon demand and shall be secured by
the lien of this Mortgage. Mortgagee shall direct the environmental
consultant to use its best efforts not to hinder Mortgagor's or any
tenant's operations when conducting such audit, sampling or
inspections. For purposes of this paragraph, the term "Event" shall
mean (i) the occurrence of any Event of Default, (ii) the issuance of
any summons, citation, directive or similar written notice from the
New Jersey Department of Environmental Protection and Energy or from
any other local, state or federal entity or from any other person,
firm or corporation concerning any alleged material violation of any
and all federal, state and local environmental legislation, rules and
regulations in effect as of the date of this Mortgage and subsequent
thereto or (iii) the initiation of any legal action, suits or other
legal or administrative proceedings relating to or in connection with
any alleged violation of any and all federal, state and local
environmental legislation, rules and regulations in effect as of the
date of this Mortgage and subsequent thereto.
(i) If a lien shall be filed against the Premises by the New
Jersey Department of Environmental Protection and Energy,
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pursuant to and in accordance with the provisions of N.J.S.A.
58:10-23.11f(f), as a result of the Chief Executive of the New Jersey
Spill Compensation Fund having expended monies from said fund to pay
for "Damages", as such term is defined in N.J.S.A. 58:10-23.11g,
and/or "Cleanup and Removal-Costs", as such term is defined in
N.J.S.A. 58:10-23(b), arising from an intentional or unintentional
action or omission of Mortgagor resulting in the releasing, spilling,
pumping, pouring, emitting, emptying or dumping of "Hazardous
Substances", as such term is defined in N.J.S.A. 58:10-23.11(b)k into
waters of the State of New Jersey or onto lands from which it might
flow or drain into said waters, then, unless there is a good faith
basis for contesting such lien and Mortgagor is so contesting such
lien in accordance with Section 5.9, Mortgagor shall, within 30 days
from the date that Mortgagor is given notice that the lien has been
placed against the Premises or within such shorter period of time if
the State of New Jersey has commenced steps to cause the Premises to
be sold pursuant to the lien, either (i) pay the claim and remove the
lien from the Premises, or (ii) furnish (A) a bond satisfactory to a
title company selected by Mortgagee (the "Title Insurer") in the
amount of the claim out of which the lien arises, (B) to the Trustee,
a cash deposit (which may be disbursed by the Trustee in its sole
discretion) in the amount of the claim out of which the lien arises,
or (C) other security reasonably satisfactory to Mortgagee in an
amount sufficient to discharge the claim out of which the lien
arises.
(j) Mortgagor shall use its best efforts to cause compliance by
all lessees with all applicable Legal Requirements relating to
environmental protection.
(k) Mortgagor shall promptly provide Mortgagee with copies of
all notices received by or prepared by Mortgagor in connection with
ISRA, CERCLA, the Spill Act, RCRA or any other environmental law,
rule or regulation relating to the Premises. For purposes of this
paragraph, the term "notice" shall mean any summons, citation,
directive, order, claim, pleading, letter, application, filing,
report, findings, declarations or other materials pertinent to
compliance of the Trust Estate and Mortgagor with such environmental
laws, rules or regulations.
(l) If this Mortgage is foreclosed, Mortgagor shall deliver the
Premises in compliance with all applicable federal, state and local
environmental laws, ordinances, rules and regulations, including,
without limitation, ISRA.
(m) Without limiting the generality of Section 5.20, Mortgagor
agrees to defend, indemnify and save Mortgagee harmless from and
against any loss or liability, cost or expense (including, without
limitation, reasonable attorneys' fees, consultants' fees,
disbursements and court costs) arising out of, or incurred in
connection with, Mortgagor's misrepresentation, or
(41)
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failure promptly (but in no event to exceed the time period permitted
by law) to comply with and perform its obligations, under this
Section 5.4. The provisions of this subsection (m) shall survive any
transfer of the Premises, including a transfer after a foreclosure of
this Mortgage.
Section 5.5. Warranty of Leasehold Estate and Title.
Mortgagor represents and warrants that as of the date hereof:
(a) Mortgagor is duly authorized under the laws of the State of
New Jersey and all other applicable laws to execute and deliver the
Mortgage Documents, and all partnership action on Mortgagor's part
necessary for the valid execution and delivery of the Mortgage
Documents has been duly and effectively taken;
(b) Mortgagor is the lawful owner and is lawfully seized and
possessed of the Owned Land and all buildings and improvements
thereon, free and clear of all liens, charges or encumbrances, other
than the Mortgage Documents and the Existing Encumbrances;
(c) Mortgagor is the holder of and has good and marketable
title to the leasehold interests and leasehold estates under all
existing Facility Leases, subject to no lien, encumbrance or charge
other than the Mortgage Documents and the Existing Encumbrances;
(d) (i) each existing Facility Lease is a valid and subsisting
demise of the respective Leased Land for the term therein set forth,
(ii) there are no defaults under any Facility Lease by any lessor or
the lessee as to which written notice has been given to or by the
lessee, (iii) Mortgagor has delivered to Mortgagee and the Trustee a
true and correct copy of each existing Facility Lease, and all
modifications, amendments and supplements thereto, and (iv) each
existing Facility Lease is in full force and effect and has not been
modified, amended or supplemented, except as described on Schedule 3;
(e) Mortgagor has good title to the Operating Assets, subject
to no lien, encumbrance or charge, other than the Mortgage Documents
and the Existing Encumbrances;
(f) Mortgagor has good and lawful right and authority to
execute this Mortgage and to grant, bargain, sell, alien, convey,
assign, transfer, hypothecate, pledge, mortgage and confirm the Trust
Estate as provided herein (including, without limitation, with
respect to the Operating Assets and Facility Leases), without the
consent of any third party, other than governmental authorities and
other secured Persons but any applicable or necessary consent or
approval of any such governmental authority
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and other such Persons has been given or waived in accordance with
applicable law at or prior to the execution and delivery of this
Mortgage, and this Mortgage constitutes a valid first mortgage lien
and deed of trust and first priority security interest in the Trust
Estate, subject only to Existing Encumbrances (including, without
limitation, the Superior Mortgage); and
(g) (i) all amounts due under the Superior Mortgage and the
instruments secured thereby have been paid to the extent they were
due and payable to the date hereof, and (ii) there is no existing
default under said Superior Mortgage or instruments, or in the
performance of any of the terms, covenants, conditions or warranties
therein on the part of Mortgagor to be performed and observed
thereunder as to which written notice has been given to Mortgagor.
Mortgagor hereby does and shall forever warrant and defend (a)
the title to the Trust Estate (including, without limitation,
Mortgagor's leasehold estate under, and the lessee's interests in,
each existing Facility Lease) (subject to Permitted Encumbrances) and
(b) the priority of the lien of this Senior Note Mortgage thereon
(subject to Permitted Encumbrances other than Restricted
Encumbrances), against the claims and demands of all persons
whomsoever, at Mortgagor's sole cost and expense.
Section 5.6. After-Acquired Property;
Further Assurances; Recording.
All property, real, personal or mixed or any interest therein
(other than Excepted Property), of every kind and description and
wheresoever situate, which may be hereafter acquired by Mortgagor
(including, without limitation, fee title to any Leased Land) shall
immediately upon the acquisition thereof by Mortgagor, and without
any further mortgage, conveyance or assignment, become subject to the
lien of this Mortgage as fully as though now owned by Mortgagor and
covered by the Granting Clauses. Nevertheless, Mortgagor shall do,
execute, acknowledge and deliver all and every such further acts,
conveyances, mortgages, financing statements and assurances as
Mortgagee shall require for accomplishing the express purposes of
this Senior Note Mortgage.
Mortgagor shall, as provided in Section 5.12, from time to time
subject to the lien of this Senior Note Mortgage its right, title and
interest under all Leases.
Mortgagor shall use reasonable efforts to insure that all
Operating Assets (other than Excepted Property) or any interest
therein hereafter acquired by Mortgagor shall be assignable to
Mortgagee, and to the extent such assignment to Mortgagee requires
the consent of any governmental authority or any other
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Person, Mortgagor shall use reasonable efforts to obtain such consent
or a waiver thereof.
Mortgagor shall cause this instrument and all other instruments
of further assurance, including all financing statements and
continuation statements covering security interests in personal
property, to be promptly recorded, registered and filed, and at all
times to be kept recorded, registered and filed, and shall execute
and file such financing statements and cause to be issued and filed
such continuation statements, all in such manner and in such places
as may be required by law or as requested by Mortgagee to fully
preserve and protect the rights of Mortgagee as a secured party under
the Uniform Commercial Code to all property comprising the Trust
Estate (to the extent a grant of a security interest therein is
governed by the Uniform Commercial Code) and to perfect, preserve and
protect the lien of this Senior Note Mortgage as a valid direct first
mortgage lien of record and a valid first priority security interest
on the Trust Estate, subject only to Permitted Encumbrances
(including, without limitation, the Superior Mortgage).
Mortgagor shall pay all filing or recording fees, and all
expenses incident to the execution and delivery of this Mortgage, any
financing statement or continuation statement with respect to the
personal property constituting part of the Trust Estate, and any
instrument of further assurance, and all federal, state, county and
municipal stamp taxes and other taxes, duties, imposts, assessments
and charges arising out of or in connection with the execution and
delivery of the Senior Partnership Note, this Senior Note Mortgage,
any financing statement or continuation statement with respect to the
personal property constituting part of the Trust Estate or any
instrument of further assurance.
Mortgagor shall furnish to Mortgagee promptly after the
acquisition hereafter by Mortgagor of any fee interest or leasehold
interest in real property having a fair market value exceeding
$500,000 (other than Excepted Property) (a) a mortgagee policy of
title insurance on the most recent form of American Land Title
Association standard loan policy, extended coverage, which policy
shall (i) contain all such endorsements and affirmative insurance, to
the extent reasonably applicable, as is contained in the Original
Policy and (ii) evidence that title to such real property is subject
to no liens or encumbrances (other than Permitted Encumbrances) which
would (A) render title unmarketable or (B) violate any other
provision of this Senior Note Mortgage or the Senior Note Indenture,
(b) an as-built survey meeting the "Minimum Standard Detail
Requirements for ALTA/ACSM Land Title Surveys", certified within 60
days prior to the acquisition date by a surveyor licensed in the
State of New
Jersey using the same form of certification as that contained in
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the surveys of the Premises delivered to the Trustee on the date of
this Mortgage and (c) a Mortgagor's Certificate certifying that the
mortgagee policy of title insurance and survey delivered pursuant to
clauses (a) and (b) comply, respectively, with the provisions of such
clauses (a) and (b). Upon delivery of all of the items required
under this paragraph, any liens or encumbrances on such real property
shall constitute Permitted Encumbrances hereunder.
Section 5.7. Payment of Taxes and Certain Claims;
Maintenance of Properties; Compliance with
Legal Requirements and Insurance Requirements.
Mortgagor shall:
(a) subject to the provisions of Section 5.8, pay or cause to
be paid before the date on which any fine, penalty, interest or cost
may be added for nonpayment (but no later than when the same are
payable by Mortgagor pursuant to any Superior Instrument
Requirement), all taxes (including, without limitation, real estate
taxes, personal or other property taxes and all sales, value added,
use and similar taxes), assessments (including, without limitation,
all assessments for public improvements or benefits, whether or not
commenced or completed prior to the date hereof and whether or not to
be completed prior to the satisfaction of this Mortgage), water,
sewer or other rents, rates and charges, excises, levies, license
fees, permit fees, inspection fees and other authorization fees and
other charges, in each case whether general or special, ordinary or
extraordinary, foreseen or unforeseen, of every character (including,
without limitation, all interest, additions to tax and penalties
thereon), that may be assessed, levied, confirmed or imposed on or in
respect of or be a lien upon (i) the Trust Estate (including, without
limitation, the Leased Land) or any part thereof or any rent
therefrom or any estate right or interest therein, or (ii) any
acquisition, occupancy, use, leasing, or possession of or activity
conducted on the real property or any part thereof included in the
Trust Estate or any gross receipts thereof or of the rent therefrom
(all of the foregoing being referred to collectively as
"Impositions"). Notwithstanding the foregoing or any other provision
of this Mortgage, Mortgagor shall not be required to pay any income,
profits or revenue tax upon the income of Mortgagee, the Trustee or
the Holders nor any franchise, excise, corporate, estate,
inheritance, succession, capital levy or transfer tax of Mortgagee,
the Trustee or the Holders nor any interest, additions to tax or
penalties in respect thereof, unless such tax is imposed, levied or
assessed in substitution for any Imposition that Mortgagor is
required to pay pursuant to this Section 5.7. Mortgagor shall
deliver to Mortgagee, at Mortgagee's request, official receipts or
other proof evidencing payments of any Impositions in accordance with
the requirements of this
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Section 5.7. Mortgagor shall not be entitled to any credit for taxes
or assessments paid against the Senior Partnership Note;
(b) except for such obsolete property as Mortgagor may dispose
of or replace pursuant to Section 2.2, maintain and keep all of
Mortgagor's properties used or useful in the conduct of Mortgagor's
business, including, without limitation, the Casino Hotel and all
Tangible Personal Property, in such good repair, working order and
condition, except for reasonable wear and use, and make or cause to
be made all such needful and proper repairs, renewals and
replacements thereto consistent with the standards of first-class
casino and hotel complexes in Atlantic City, New Jersey;
(c) occupy and continuously operate the Casino Hotel and keep
the Casino Hotel supplied with Tangible Personal Property, all in a
manner consistent with the standards of first-class casino and hotel
complexes in Atlantic City, New Jersey;
(d) subject to the provisions of Section 5.8, (i) comply with
all Legal Requirements and Insurance Requirements, whether or not
compliance therewith shall require structural changes in the
buildings and improvements included in the Trust Estate or interfere
with the use and enjoyment of the Trust Estate or any part thereof,
(ii) procure, maintain and comply with all Permits required for (1)
the use of the Casino as a gaming and gambling facility, (2) the
on-premises consumption of alcoholic beverages at the Casino Hotel
and (3) any other use of the Trust Estate or any part thereof then
being made, and for the proper erection, installation, operation and
maintenance of the improvements or any part thereof, (iii) comply
with all obligations of Mortgagor under, and keep in full force and
effect, all easements which in any respect inure to the benefit of,
or otherwise affect, the Trust Estate or any part thereof, if the
failure to comply with the same would impair Mortgagee's security
hereunder, and (iv) without limiting the generality of clause (iii),
comply with any instruments of record at the time in force affecting
the Trust Estate or any part thereof, if the failure to comply with
the same would impair Mortgagee's security hereunder. Without
limiting the generality of the foregoing, Mortgagor represents and
warrants that at the time of the execution of this Mortgage,
Mortgagor is in compliance with the requirements of clauses (i),
(ii), (iii) and (iv) above; and
(e) in the event of the passage after the date of this Mortgage
of any law of the State of New Jersey, or any other governmental
entity, changing in any way the laws now in force for the taxation of
mortgages, or debts secured thereby, for federal, state or local
purposes, or the manner of the operation of any such taxes, so as to
affect the interest of Mortgagee, pay the full amount of such new or
additional taxes.
(46)
<PAGE>
Section 5.8. Permitted Contests.
Notwithstanding anything in this Senior Note Mortgage to the
contrary, Mortgagor, at Mortgagor's expense, may contest (after prior
notice to Mortgagee) by appropriate legal proceedings conducted in
good faith and with due diligence, the amount or validity or
application, in whole or in part, of any Imposition or lien therefor
or any Legal Requirement or Insurance Requirement or the application
of any instrument of record (including, without limitation, any
Superior Instrument Requirement) affecting the Trust Estate or any
part thereof or any claims of holders of F,F&E Financing Agreements,
mechanics, materialmen, suppliers, or vendors or lien therefor, and
may withhold payment of the same pending such proceedings if
permitted by law, or make payment under protest, or defer compliance
with any such Legal Requirement, any such Insurance Requirement or
the terms of any such instrument, and the same shall not be a Default
hereunder; provided, that (a) in the case of any Impositions or lien
therefor or any claims of mechanics, materialmen, suppliers or
vendors or lien therefor, such proceedings shall suspend the
collection thereof from each of Mortgagor, Mortgagee, the Trustee,
the Holders and the Trust Estate, (b) neither the Trust Estate nor
any interest therein would be in any significant danger of being
sold, forfeited, or lost, (c) such action will not result in (i) the
termination of any Facility Lease or (ii) the holder of any Superior
Mortgage having a right to exercise any rights or remedies
thereunder, (d) in the case of a Legal Requirement, neither the
Holders nor Mortgagee shall be in any significant danger of any civil
liability or any danger of any criminal liability, and the failure of
Mortgagor to comply with such Legal Requirement shall not affect the
continuance in good standing of any Permit or result in the
suspension, termination, non-renewal or material adverse modification
of any Permit, and (e) in the case of an Insurance Requirement, the
failure of Mortgagor to comply therewith shall not affect the
validity of any insurance required to be maintained by Mortgagor
hereunder.
Section 5.9. Mechanics' and Other Liens.
Mortgagor shall cause to be removed, either by payment, or
bonding or otherwise, all claims and demands of mechanics,
materialmen, laborers, and others which, if unpaid, might result in,
or permit the creation of, a lien on the Premises and/or Trust Estate
or any part thereof, or on the revenues, rents, issues, income and
profits arising therefrom and in general shall do or cause to be done
everything necessary so that the lien hereof shall be fully
preserved, at the cost of Mortgagor, without expense to Mortgagee.
Section 5.10. To Insure.
(47)
<PAGE>
(a) Mortgagor, at Mortgagor's expense, shall maintain with
Insurers:
(i) insurance with respect to Mortgagor's insurable
properties constituting a part of the Trust Estate against loss
or damage by fire, lightning, and other risks from time to time
included under "all-risk" policies and against loss or damage by
sprinkler leakage, water damage, collapse, malicious mischief
and explosion in respect of any steam and pressure boilers and
similar apparatus located on such insurable properties, in
amounts at all times sufficient to prevent Mortgagor from
becoming a coinsurer within the terms of the applicable
policies, but in any event such insurance shall be maintained in
not less than the greatest of the following (the "Insurance
Amount"): (A) 100% of the then Full Insurable Value of such
insurable properties, determined from time to time (but not less
frequently than once in any 36 calendar months), by an Appraiser
or Insurer, (B) the then Outstanding Amount of Mortgage Debt,
including the Senior Partnership Note, or (C) the amount
required to be maintained pursuant to the Superior Instrument
Requirements;
(ii) war risk insurance as and when such insurance is
obtainable from the United States of America or any agency
thereof as promptly as reasonably practicable after the same
becomes so obtainable, in an amount not less than the Insurance
Amount, or, if such insurance cannot be obtained in an amount
not less than the Insurance Amount, in such lesser amount as may
then be so obtainable;
(iii) comprehensive general liability insurance,
including, without limitation, blanket contractual liability
coverage, broad form property damage, independent contractor's
coverage and personal injury coverage against any and all claims
arising out of or connected with the possession, use,, leasing,
operation or condition of such insurable properties, in an
amount not less than $100,000,000 combined single limit coverage
for personal injury and property damage with respect to any one
occurrence, which may be under an umbrella policy. Anything
contained in this clause (iii) to the contrary notwithstanding,
the Superior Instrument Requirements with respect to the kinds
and amount of insurance described in this clause (iii) shall be
satisfied by Mortgagor;
(iv) workers' compensation insurance to the extent
required by law;
(v) business interruption insurance covering not less than
6 months of loss, provided that, at any time that Mortgagor is
renewing any policy for such insurance or
(48)
<PAGE>
taking out any new or replacement policy for such insurance covering
a period of less than 12 months, Mortgagor shall deliver to Mortgagee
an Officers' Certificate certifying that the period of coverage to be
maintained by Mortgagor under such policy is the maximum that can be
maintained at rates determined by Mortgagor to be reasonable for such
coverage;
(vi) to the extent available, flood insurance in an amount
not less than the Insurance Amount, or, if such insurance cannot
be obtained in an amount not less than the Insurance Amount,
such lesser amount as may then be so obtainable but in no event
less than $100,000,000; and
(vii) such other insurance with respect to such insurable
properties against loss or damage of the kinds (A) from time to
time customarily insured against by persons owning or using
first-class casino and hotel complexes in Atlantic City, New
Jersey and (B) required to be maintained pursuant to any
Superior Instrument Requirements.
Notwithstanding the foregoing, to the extent not violative of
any Superior Instrument Requirements, (A) Mortgagor may maintain a
deductible with respect to the insurance policies described in
clauses (i), (ii), (vi) and (vii) in an amount not to exceed
$250,000, (B) Mortgagor may maintain a deductible with respect to the
insurance policies described in clause (iii) in an amount not to
exceed $500,000, and (C) Mortgagor may maintain a deductible with
respect to the insurance policies described in clause (v) in an
amount not to exceed $1,000,000.
(b) (i) Each policy of insurance maintained by Mortgagor
pursuant to Section 5.10(a) shall, (A) except in the case of workers'
compensation insurance, name Mortgagor as an insured and shall name
as additional insureds (1) Mortgagee and (2) to the extent required
by the Superior Instrument Requirements, the lessors under any
Facility Leases and the holders of the Superior Mortgages, (B)
provide that all insurance proceeds for losses, except in the case of
comprehensive general liability insurance and workers' compensation
insurance or as otherwise provided in Subsections (d), (e) and (f) of
this Section 5.10, be payable solely to Mortgagee (or if such
insurance proceeds are for losses sustained solely to property
covered by a Superior Mortgage, such other party as is required to
receive such proceeds under a Superior Mortgage), (C) include
effective waivers (whether under the terms of any such policy or
otherwise) by the insurer of all claims for insurance premiums
against all loss payees and named insureds (other than Mortgagor) and
all rights of subrogation against any named insured, (D) except in
the case of comprehensive general liability and workers' compensation
insurance, provide that any losses shall be payable notwithstanding
(1) any act, failure to act, negligence of, or
(49)
<PAGE>
violation or breach of warranties, declarations or conditions
contained in such policy by Mortgagor or Mortgagee or any other named
insured or loss payee (including, without limitation, (x) the lessors
under the Facility Leases with respect to any Leased Facilities and
(y) the holder of any Superior Mortgage with respect to the property
encumbered thereby), (2) the occupation or use of the insurable
properties for purposes more hazardous than permitted by the terms of
the policy, (3) any foreclosure or other proceeding or notice of sale
relating to the insurable properties or (4) any change in the title
to or ownership or possession of the insurable properties, (E)
contain a non-contributory mortgagee clause in favor of Mortgagee,
and (F) provide that if all or any part of such policy is cancelled,
terminated or expires, the insurer will forthwith give notice thereof
to each named insured and loss payee and that no cancellation,
non-renewal, reduction in amount or material change in coverage
thereof shall be effective until at least 30 days after receipt by
each named insured and loss payee of written notice thereof.
(ii) Mortgagor may effect the insurance required under this
Section 5.10 under blanket and/or umbrella policies covering
properties owned or leased by Affiliates of Mortgagor; provided, that
(A) such policies otherwise comply with this mortgage, (B) except
with respect to flood insurance and earthquake insurance, provide
that the amount of coverage afforded thereunder with respect to the
Trust Estate shall not be reduced by claims thereunder against such
other properties and (C) in the case of flood insurance provide that
the amount of coverage afforded thereunder with respect to the Trust
Estate shall not be reduced below $100,000,000 by reason of claims
thereunder against such other properties.
(c) Mortgagor shall deliver to Mortgagee duplicate originals of
all insurance policies that Mortgagor is required to maintain
pursuant to this Section 5.10. Mortgagee shall not be responsible
for effecting or renewing any insurance or for the responsibility or
solvency of the insurers.
(d) Mortgagor shall give written notice to Mortgagee
immediately upon obtaining knowledge of any Casualty which (i)
results in damage, loss or destruction in an amount in excess of
$5,000,000 to any buildings or improvements on the Premises and/or
any Tangible Personal Property or (ii) pursuant to any Superior
Instrument Requirement, would require the deposit of insurance
proceeds with the Depositary, or action or proceeding with respect
thereto. Whenever the Superior Instrument Requirements require or
permit the selection of the Depositary by Mortgagor, Mortgagor shall
select the Insurance Trustee as the Depositary. Within 30 days after
any Casualty which results in any damage, loss or destruction in an
amount in excess of $10,000,000 to any buildings or improvements on
the Premises
(50)
<PAGE>
and/or any Tangible Personal Property, Mortgagor shall deliver to
Mortgagee a certificate of an Architect stating whether, in such
Architect's opinion, applicable Legal Requirements permit the
Restoration of said buildings and improvements for the same uses and
to the same size and quality in all material respects, as existed
immediately prior to the Casualty (and if said certificate states
that Legal Requirements do not permit such Restoration, said
certificate shall describe the manner closest approximating such
criteria to which the buildings and improvements could be so restored
and shall be accompanied by a Certificate Of Appraised Value dated
not more than 10 days prior to delivery setting forth the Appraised
Value immediately prior to the Casualty and the estimated Appraised
Value immediately after the Restoration). If Mortgagor is required
to deliver such Certificates of Appraised Value and if based on such
Certificates of Appraised Value immediately after Restoration, (i)
the aggregate Outstanding Amount of Indebtedness of the Mortgagor
immediately after such Restoration shall exceed the greater of (A)
80% of the Appraised Value immediately after such Restoration or (B)
the quotient of the Outstanding Amount of Indebtedness of the
Mortgagor immediately prior to such Casualty divided by the Appraised
Value immediately prior to the Casualty multiplied by the Appraised
Value immediately after such Restoration, or (ii) applicable Legal
Requirements do not permit the Restoration of the Casino Hotel for
use as a casino and hotel complex, then, in either of such events,
the proceeds of any insurance shall not be applied to Restoration but
shall instead be paid and delivered to Mortgagee to the extent of the
then Outstanding Amount of the Senior Partnership Note and any other
interest or other sums due hereunder or thereunder to be applied to
the satisfaction of this Mortgage to the extent proceeds are
available for such purpose and provided that no additional sums are
due to the Trustee or the Holders under the Mortgage Senior
Partnership Notes or the Senior Note Indenture, the balance of any
net insurance proceeds shall be paid to Mortgagor.
(e) Subject to the provisions of Subsection 5.10(d), if a
Casualty occurs, the following shall apply:
(i) If the cost of Restoration is less than $10,000,000,
the net insurance proceeds shall be paid by Mortgagee to
Mortgagor (unless the Superior Instrument Requirements provide
that the same shall be paid to the Depositary).
(ii) If the cost of Restoration is $10,000,000 or more or
if the Superior Instrument Requirements provide that the same
shall be paid to the Depositary, the net insurance proceeds
shall be paid by Mortgagee to the Insurance Trustee (or other
Depositary required by the Superior Instrument Requirements,
provided that such Depositary holds such
(51)
<PAGE>
proceeds in trust for purposes of paying the costs of Restoration).
(iii) Mortgagor shall commence with reasonable promptness
under the circumstances and thereafter with due diligence
proceed to perform and complete in a good and workmanlike manner
the restoration, repair, replacement or rebuilding of the damage
or destruction resulting from the Casualty (all such
restoration, repair, replacement and rebuilding following a
Casualty or a Taking are referred to as "Restoration") in
accordance with the plans and specifications submitted to the
Insurance Trustee, in conformance with all Legal Requirements
and Superior Instrument Requirements, and in accordance with the
further provisions of this Subsection (e), regardless of the
extent of any such Casualty and whether or not net insurance
proceeds, if any, shall be available or, if available, shall be
sufficient, for the purpose of the Restoration. All Restoration
work shall be performed in accordance with the applicable
provisions of Section 5.12 and in conformance with all Superior
Instrument Requirements, Legal Requirements and Insurance
Requirements and, prior to commencing any Restoration, Mortgagor
shall obtain all Permits necessary in connection therewith, and
shall obtain, and keep in full force and effect until the
completion of such Restoration, such additional insurance as the
Insurance Trustee and Superior Instrument Requirements may
require. The plans and specifications for the Restoration shall
be accompanied by a Mortgagor's Certificate and an Opinion of
Counsel to the effect that upon the completion of the
Restoration pursuant to the plans and specifications, the
Premises and all buildings and improvements thereon will comply
with all Superior Instrument Requirements, Legal Requirements
and Insurance Requirements.
(iv) Any insurance proceeds which Mortgagor receives shall
be held by Mortgagor in trust for the purpose of paying the cost
of the Restoration, except as otherwise provided herein.
(v) Any net insurance proceeds that the Insurance Trustee
holds pursuant to this Subsection (e), shall be deposited in an
interest-bearing investment reasonably designated by Mortgagor
(to the extent Mortgagor is permitted to designate such
investment under the Superior Instrument Requirements) (and the
interest thereon shall be added to such proceeds) and shall be
paid by the Insurance Trustee to reimburse Mortgagor for, or to
make payment for, the Restoration, after the Insurance Trustee
deducts therefrom the amount of any reasonable costs and
expenses incurred in connection with the performance of its
obligations under this Section 5.10. The Insurance Trustee
(52)
<PAGE>
shall make such payments not more frequently than once every 30 days
upon the written request of Mortgagor (unless more frequent payments
are required by Superior Instrument Requirements), by paying to
Mortgagor or the persons named in the certificate described in clause
(vi) of this Subsection (e) the respective amounts stated in such
certificate from time to time as the Restoration progresses, provided
Mortgagor has complied with the requirements of this Subsection (e)
and such payment is permitted by any applicable Superior Instrument
Requirements. Mortgagor's request shall be accompanied by (A) the
certificate described in clause (vi) of this Subsection (e) and (B) a
title company or official search, or other evidence reasonably
acceptable to the Insurance Trustee, showing that there have not been
filed with respect to the Premises, any vendor's, contractor's,
mechanic's, laborer's or materialman's statutory or similar lien
which has not been discharged of record (or bonded against or secured
by other security) or any other encumbrance irrespective of its
priority (other than Permitted Encumbrances).
(vi) The certificate required by clause (v) of this
Subsection (e) shall (A) be a Mortgagor's Certificate,
countersigned by the Architect in charge of the Restoration with
respect to the matters described in (1) and (5) below, (B) be
dated not more than 10 days prior to such request and (C) set
forth (in addition to any other requirements contained in any
applicable Superior Instrument Requirements) that:
(1) all of the Restoration theretofore performed is
in substantial compliance with the plans and specifications
theretofore submitted to the Insurance Trustee and in
compliance with all Superior Instrument Requirements, Legal
Requirements and Insurance Requirements;
(2) the sum then requested either has been paid by
Mortgagor or is justly due to contractors, subcontractors,
materialmen, engineers, architects or other persons who
have rendered services or furnished or contracted to
deliver materials for the Restoration therein specified,
and the names and addresses of such persons, a brief
description of such services and materials and the several
amounts so paid or due to each of said persons in respect
thereof;
(3) no part of the amount requested has been or is
the basis in any previous or then pending request for the
withdrawal of net insurance proceeds, and that the sum then
requested does not exceed the value of the services and
materials described in the certificate;
(53)
<PAGE>
(4) except for the amount, if any, stated pursuant to
subclause (2) of this clause (vi) in such certificate to be
due for services or materials, and except for amounts in
dispute and/or customary retainages, there is no
outstanding indebtedness known to the person signing such
certificate, after due inquiry, which is then due for
labor, wages, materials, supplies or services in connection
with such Restoration; and
(5) the remaining cost, as estimated by the persons
signing such certificate, of the Restoration in order to
complete the same does not exceed the net insurance
proceeds remaining in the hands of Insurance Trustee after
payment of the sum requested in such certificate or if such
estimated cost does exceed such insurance proceeds such
certificate shall state the amount of any such deficiency.
If the certificate states that such deficiency will exist,
Mortgagor shall deliver the amount of such deficiency in
cash or cash equivalent to the Insurance Trustee
simultaneously with the delivery of such certificate, which
amount shall be deemed insurance proceeds for purposes of
this Section 5.10(e).
(vii) If net insurance proceeds shall be insufficient to
pay the entire cost of the Restoration, then, after completion
of the Restoration, Mortgagor shall pay the deficiency. If all
or any part of the net insurance proceeds are not used for the
Restoration in accordance with this Subsection (e) (because such
proceeds exceed the amount required to complete the
Restoration), then upon completion of the Restoration in
accordance with this Subsection (e), such amount not so used, if
held by the Insurance Trustee, shall be paid to Mortgagor (if
permitted by Superior Instrument Requirements).
(f) Mortgagor shall not take out separate insurance, concurrent
in form or contributing in the event of loss with that required to be
maintained pursuant to this Section 5.10, unless the same is
permitted by Superior Instrument Requirements. Mortgagor shall
immediately notify Mortgagee whenever any such separate insurance is
taken out and shall promptly deliver to Mortgagee a duplicate
original of the policy of such insurance, a copy thereof certified by
the insurer or a certificate thereof. Provided that no Event of
Default has occurred and is continuing, all net business interruption
insurance proceeds shall be paid to Mortgagor, to be segregated from
the other funds of Mortgagor and held in trust by Mortgagor for the
following purposes and in the following order of priority: (i) for
the payment of Impositions and amounts due under the Facility Leases
and Superior Mortgage, (54)
<PAGE>
(ii) for debt service for the estimated period of Restoration (for
purposes of this Subsection 5.10(f), interest and principal payments
due on any payment date under the Senior Partnership Note will be
deemed to accrue in equal daily installments beginning the day after
the immediately preceding payment date and ending on such payment
date), and (iii) for any other expense incurred in connection with
the operation or business of the Casino Hotel.
(g) Insurance claims by reason of damage or destruction to any
portion of the Trust Estate may be adjusted by Mortgagor, but
Mortgagee shall have the right (but not the obligation) to join
Mortgagor in adjusting, and approving the adjustment of, any such
loss except in the event of a loss where the amount of insurance
reasonably anticipated to be received with respect to such loss is
less than $5,000,000, and Mortgagor shall assist Mortgagee in any
such adjustment at the request of Mortgagee. If Mortgagee at its
election as aforesaid joins Mortgagor in any adjustment process, then
Mortgagee's approval of the adjustment shall not be unreasonably
withheld.
(h) Notwithstanding anything contained herein to the contrary,
if an Event of Default shall have occurred and be continuing,
Mortgagee may, at its option, (A) refrain from paying to Mortgagor or
the Insurance Trustee any net insurance proceeds or (B) instruct the
Insurance Trustee to pay to Mortgagee any insurance proceeds then
held by the Insurance Trustee, as the case may be.
Section 5.11. Limitations on Building Demolition,
Alterations, Improvements and New Construction.
Mortgagor shall not authorize, permit or make any demolition,
alteration or improvement of any building, structure or other
improvements included in the Trust Estate or any new construction on
any part of the Trust Estate, except in conformity with and subject
to the limitations hereinafter in this Section 5.11 set forth and set
forth in the Senior Note Indenture.
Unless an Event of Default shall have occurred and be
continuing, Mortgagor shall have the right at all times to make or
permit such demolition, alterations, improvements or new
construction, structural or otherwise (herein sometimes called
collectively "Alterations" and each, individually, an "Alteration"),
of the Trust Estate, to be made in all cases subject to each of the
following conditions:
(a) No Alteration shall be undertaken or carried out except in
conformity with all Superior Instrument Requirements, Legal
Requirements and Insurance Requirements.
(55)
<PAGE>
(b) If the estimated cost of any Alteration, together with
other Alterations that constitute a single construction plan or
project (whether or not accomplished in several stages or
procedures), exceeds $5,000,000, the building or buildings,
structures or other improvements as so improved or altered, upon the
completion of the work, shall be of a value not less than the value
of such building or buildings, structures or other improvements
immediately prior to the making of such Alteration.
(c) Any Alteration which is structural in nature or involves an
estimated cost of more than $5,000,000 shall be conducted under the
supervision of an Architect, and no such Alteration shall be
undertaken until 10 days after there shall have been filed with
Mortgagee detailed plans and specifications and cost estimates
therefor, prepared and approved in writing by such Architect and
accompanied by a certificate of such Architect stating that such
plans and specifications conform to all applicable provisions of this
Section 5.11.
(d) No Alteration involving an estimated cost of more than
$5,000,000 shall be undertaken until Mortgagor has furnished to
Mortgagee, at Mortgagor's sole cost and expense, a surety bond or
bonds, covering performance, and labor and material payments with
respect to the work to be so performed, naming Mortgagee as obligee,
issued by a responsible surety company, authorized to do business in
the State of New Jersey, in a form generally and customarily used by
such surety in an amount equal to the estimated cost of construction
of the work covered by the plans and specifications therefor,
guaranteeing the performance and completion of such construction,
substantially in conformity with the said plans and specifications
and within a reasonable time, subject to delays by fire, strikes,
lock-out, acts of God, inability to obtain labor or materials,
governmental restrictions, enemy action, civil commotion or
unavoidable Casualty or other similar causes beyond the control of
Mortgagor, free and clear of all liens, claims and liabilities for
the cost of such Alterations. If such surety bond or bonds shall be
unobtainable Mortgagor shall deliver to Mortgagee security by cash,
letter of credit or other guarantee, affording substantially the same
protection as would such bond or bonds.
(e) All work done in connection with any Alterations shall be
done promptly and in good and workmanlike manner. The work in
connection with any Alteration shall be prosecuted with reasonable
dispatch, delays due to fire, strikes, lock-outs, acts of God,
inability to obtain labor or materials, governmental restrictions,
enemy action, civil commotion or unavoidable Casualty or similar
causes beyond the control of Mortgagor excepted.
(f) If the estimated cost of Alterations exceeds $5,000,000,
Mortgagor shall have delivered to Mortgagee (i) prior
(56)
<PAGE>
to the commencement of such Alterations, copies of all Permits
required for the commencement of such work together with a
certificate of the Architect or an Opinion of Counsel to the effect
that all Permits required for the commencement of such Alterations
have been obtained; and (ii) within a reasonable period of time after
the completion of the Alterations, copies of all Permits required in
connection with the completion thereof, together with either an
Opinion of Counsel or a certificate of the Architect that all such
Permits have been so obtained by Mortgagor and that Mortgagor has
complied with all the requirements of this Section 5.11.
(g) No Alterations of any kind shall be made which shall change
the use or reduce the size or quality of any building, structure or
other improvements in any material respect or which shall change the
use of the Casino Hotel from its use as a gaming and hotel facility.
(h) No Alterations costing in excess of $5,000,000, together
with other Alterations that constitute a single construction plan or
project (whether or not accomplished in several stages or
procedures), shall be made if such Alterations are not expected to be
completed at least 120 days prior to the Stated Maturity of the
Senior Partnership Note (except if such Alterations are required in
order to comply with Legal Requirements or Superior Instrument
Requirements).
(i) Mortgagor shall maintain at all times during the
performance of Alterations, in addition to any insurance required to
be maintained under Section 5.11 hereof, appropriate workers'
compensation insurance covering all persons employed for such
Alterations to the extent required by applicable law, and
comprehensive general liability insurance expressly covering the
additional hazards due to such Alterations. Each such policy of
insurance shall comply with the provisions of Section 5.10(b), and
Mortgagor shall comply with Subsections (c), (d), (e), (f), (g) and
(h) of Section 5.10 in connection with all such insurance.
Section 5.12. Leases.
Mortgagor shall not:
(a) lease the Trust Estate substantially as an entirety to any
Person (except in accordance with the provisions of Article Eight of
the Senior Note Indenture), nor shall Mortgagor lease either the
Casino Hotel or the Casino or the Hotel or any parking facilities
substantially as an entirety to any Person;
(b) enter into any Lease, or renew, modify, extend, terminate,
or amend any Lease, except in the ordinary course of business of
operating the Casino Hotel;
(57)
<PAGE>
(c) receive or collect, or permit the receipt or collection of,
any rental payments under any Lease more than one month in advance of
the respective periods in respect of which they are to accrue, except
that, in connection with the execution and delivery of any Lease or
of any amendment to any Lease, rental payments thereunder may be
collected and received in advance in an amount not in excess of three
months' rent and/or a security deposit may be required thereunder in
an amount not exceeding one year's rent;
(d) collaterally assign, transfer or hypothecate (other than to
Mortgagee hereunder, to the holder of the Senior Note Guarantee
Mortgage or to the holder of the Superior Mortgage, but in each case
only with respect to the property secured by such mortgage) (i) any
rental payment under any Lease whether then due or to accrue in the
future, (ii) the interest of Mortgagor as landlord under any Lease or
(iii) the rents, issues or profits of the Trust Estate;
(e) after the date hereof, enter into any Lease, or renew any
Lease, unless such Lease contains terms to the effect as follows:
(i) the Lease and the rights of the tenants thereunder
shall be subject and subordinate to the rights of Mortgagee
under this Mortgage and the holders of the Superior Mortgage,
(ii) the Lease may be assigned by the landlord thereunder
to Mortgagee, and
(iii) the rights and remedies of the tenant in respect of
any obligations of the landlord thereunder shall be nonrecourse
as to any assets of the landlord other than its equity in the
building in which the leased premises are located or the
proceeds thereof; or
(f) modify any Lease with respect to the matters described in
clauses (i) through (iii) of paragraph (e).
If Mortgagor enters into a Lease (other than with an Affiliate
of Mortgagor) for a term of not less than 3 years, Mortgagee shall
deliver a non-disturbance and attornment agreement substantially in
the form of Schedule 7 hereto, following receipt of a certificate of
a leasing broker (who is not an Affiliate of Mortgagor or the broker
involved in such transaction) experienced with respect to leases of
commercial space in the Atlantic City area stating that the rent
under the Lease throughout the term thereof is not less than fair
market rent and the other terms of the Lease are fair and reasonable
in the commercial leasing market. Mortgagor shall, upon demand,
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reimburse Mortgagee for any costs and expenses (including reasonable
attorneys' fees and disbursements) incurred by Mortgagee in
connection with the preparation, review and delivery of such
non-disturbance and attornment agreements.
Promptly after the execution and delivery hereof, Mortgagor
shall cause the lessee under each Lease now in effect, and promptly
after each Lease is executed or becomes effective after the date of
the execution and delivery hereof, Mortgagor shall cause the lessee
under each such Lease, to be duly notified in writing (unless the
substance and effect of such notice shall be contained in such Lease)
of the subjection of the owner's interest, as lessor, in and to such
Lease to the lien of this Mortgage and of the name and address of
Mortgagee. Each such notice shall state that the lease of such
lessee is a Lease as herein defined. If a new Mortgagee is at any
time appointed hereunder or the address of Mortgagee shall at any
time be changed, Mortgagor shall cause each lessee under each Lease
to be promptly notified in writing of the name and address of such
new Mortgagee or the new address of Mortgagee. Mortgagor shall use
reasonable efforts (but shall not be obligated to incur any
expenditure other than de minimis amounts) to obtain from each lessee
under each Lease to whom any notice is sent pursuant to this
paragraph an acknowledgment of receipt of such notice, and Mortgagor
shall promptly deliver to Mortgagee,, upon request, a copy of each
such acknowledgment of receipt which it is able to obtain. Mortgagee
shall not be responsible for securing or causing Mortgagor to secure
any such acknowledgment.
Section 5.13. Compliance Certificates.
Mortgagor shall deliver to Mortgagee, within 120 days after the
end of each fiscal year of Mortgagor, a Mortgagor's Certificate
stating that
(a) a review of the activities of Mortgagor during such year
and of performance under this Mortgage has been made under the
signer's supervision, and
(b) to the best of each signer's knowledge, based on such
review, Mortgagor has fulfilled all of Mortgagor's obligations under
this Mortgage throughout such year, or, if there has been a default
in the fulfillment of any such obligation, specifying each such
default known to him and the nature and status thereof.
Promptly after Mortgagor may reasonably be deemed to have
knowledge of a default hereunder, Mortgagor shall deliver to
Mortgagee a notice specifying the nature and period of existence
thereof and the action Mortgagor is taking and proposes to take with
respect thereto.
Section 5.14. To Keep Books; Inspection by Mortgagee.
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Mortgagor will keep proper books of record and account, in which
full and correct entries shall be made of all dealings or
transactions of or in relation to the Senior Partnership Note and the
properties, business and affairs of Mortgagor in accordance with
generally accepted accounting principles consistently applied. Said
books shall be maintained in an office located either in Atlantic
City, New Jersey or in the Borough of Manhattan, City of New York,
State of New York. Mortgagor shall at any and all times, upon
request of Mortgagee and at the expense of Mortgagor, permit
Mortgagee and its representatives to inspect the Casino Hotel and any
other buildings, structures and improvements now or hereafter located
on the Land and the books of account, records, reports and other
papers of Mortgagor, and to make copies and extracts therefrom, and
will afford and procure a reasonable opportunity to make any such
inspection (provided, that any such inspection shall not unreasonably
interfere with the business operations of Mortgagor), and Mortgagor
will furnish to Mortgagee any and all information as Mortgagee may
reasonably request, with respect to the performance by Mortgagor of
its covenants in this Mortgage.
Section 5.15. Advances by Mortgagee.
If Mortgagor shall fail to perform any of the covenants, terms,
provisions or conditions contained in this Mortgage and such failure
shall continue for 10 days following notice thereof given by
Mortgagee (or at any time, without notice, in case of emergency),
Mortgagee may (but is not obligated to), at any time and from time to
time, take any action or make advances, to effect performance of any
such covenant, term, provision or condition on behalf of Mortgagor;
and all moneys so used, paid or advanced by Mortgagee and all
reasonable costs and expenses incurred by Mortgagee in connection
therewith, together with interest on all of the same at the rate of
interest set forth in the Senior Partnership Note, shall be
immediately due and payable by Mortgagor to Mortgagee and all such
moneys, costs and expenses shall be secured by the lien of this
Mortgage prior to the Senior Partnership Note. No such advance or
payment by Mortgagee shall relieve Mortgagor from any default
hereunder or impair any right or remedy of Mortgagee.
Section 5.16. Waiver of Stay, Extension or Usury Laws.
Mortgagor covenants (to the extent that it may lawfully do so)
that it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any usury, stay
or extension law or any other law which would prohibit or forgive
Mortgagor from paying all or any portion of the obligations secured
by this Mortgage, wherever enacted, now or at any time hereafter in
force, or which may otherwise affect the covenants or the performance
of this Mortgage; and Mortgagor
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(to the extent that it may lawfully do so) hereby expressly waives
all benefit or advantage of any such law, and covenants that it shall
not hinder, delay or impede the execution of any power herein granted
to Mortgagee, but shall suffer and permit the execution of every such
power as though no such law had been enacted.
Section 5.17. Eminent Domain.
(a) Mortgagor shall notify Mortgagee immediately upon obtaining
knowledge of any Taking affecting the Trust Estate or any part
thereof. If the Taking is a Taking of less than the whole or
substantially all of the Premises but (i) is estimated to result in
an award of more than $10,000,000 or (ii) the Taking will interfere
with or adversely affect the operation of the Casino Hotel (other
than any portion thereof consisting solely of unimproved, paved or
unpaved surface parking) other than to a de minimis extent, then
within 30 days after such Taking, Mortgagor shall deliver to
Mortgagee a certificate of an Architect stating whether, in such
Architect's opinion, applicable Legal Requirements permit the
Restoration of any buildings and improvements for the same uses and
to the same size and quality in all material respects as existed
immediately prior to the Taking (and if said certificate states that
Legal Requirements do not permit such Restoration, said certificate
shall describe the manner closest approximating such criteria to
which the buildings and improvements could be so restored and shall
be accompanied by a Certificate of Appraised Value dated not more
than 10 days prior to delivery setting forth the Appraised Value
immediately prior to the Taking and the estimated Appraised Value
immediately after the permitted Restoration). If Mortgagor is
required to deliver such Certificate of Appraised value and if based
on such Certificate of Appraised Value immediately after Restoration,
(i) the Outstanding Amount of Indebtedness of the Partnership
immediately after such Restoration shall exceed the greater of (A)
80% of the Appraised Value immediately after such Restoration or (B)
the quotient of the Outstanding Amount of Indebtedness of the
Partnership immediately prior to such Taking divided by the Appraised
Value immediately prior to the Taking multiplied by the Appraised
Value immediately after such Restoration, or (ii) applicable Legal
Requirements do not permit the Restoration of the Casino Hotel for
use as a casino and hotel complex, then, in any of such events, the
Taking shall be deemed a Taking of "the whole or substantially all of
the Premises." The Taking shall be deemed a Taking of "less than the
whole or substantially all of the Premises" if Mortgagor is not
required to deliver a Certificate Of Appraised Value or if, at the
time of delivery of such Certificate, neither of the tests set forth
in clauses (i) and (ii) is met.
(b) If at any time there shall occur a Taking of less than the
whole or substantially all of the Premises and the award or
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awards resulting therefrom payable to Mortgagor (and not to any
lessor under any Facility Lease or the holder of any Superior
Mortgage) (after there shall have been first deducted the fees and
expenses incurred in connection with the termination, settlement and
collection of such award or awards, including, without limitation,
reasonable counsel fees and expenses, hereinafter referred to as
"Settlement Costs") (i) shall be less than $10,000,000 (except to the
extent that the Insurance Trustee or a Depositary is required to hold
such amount pursuant to a Superior Instrument Requirement), the
entire amount of such award shall be paid to Mortgagor; and (ii) if
such award is $10,000,000 or more, the entire amount of such award
shall be paid to the Insurance Trustee (or other Depositary required
by a Superior Mortgage, provided that such Depositary holds such
award in trust for purposes of paying the cost of Restoration). In
either event, such awards shall be applied to the cost of Restoration
of the Trust Estate as nearly as practicable to their uses, value and
condition immediately prior to the Taking (except to the extent
otherwise provided by Superior Instrument Requirements). Mortgagor
shall promptly commence and with due diligence perform the
Restoration in accordance with clauses (iii), (iv) and (vii) of
Subsection 5.10(e) (after substituting the words "Taking" for
"Casualty" and "award" for "net insurance proceeds"), at no cost to
Mortgagee. All claims or suits arising out of any Taking may be
settled by Mortgagor, except that Mortgagee shall have the right (but
not the obligation) to participate in such claim or suit, and to
approve settlement thereof (and notwithstanding anything in the
Facility Leases to the contrary, Mortgagor shall not agree to any
settlement or compromise of the amount of any such claim or suit,
except a claim or suit where the amount reasonably anticipated to be
received by Mortgagor is less than $5,000,000). If Mortgagee at its
election as aforesaid joins such claim or suit, Mortgagee's approval
of such settlement shall not be unreasonably withheld. The Insurance
Trustee shall promptly pay such sums as are received by it from such
Taking from time to time in accordance with the procedures set forth
in clauses (v) and (vi) of Subsection 5.10(e) (after substituting the
words "Taking" for "Casualty" and "award" for "net insurance
proceeds").
(c) If at any time there shall occur a Taking of the whole or
substantially all of the Premises, then the award payable to
Mortgagor shall not be applied to Restoration but shall instead be
paid and delivered to the Trustee (subject to the rights of the
lessors under any Facility Leases and the holders of any Superior
Mortgages) to the extent of the then Outstanding Amount of the Senior
Partnership Note and any other interest or other sums due hereunder
or thereunder to be applied to the satisfaction of this Mortgage to
the extent proceeds are available for such purpose and provided that
no additional sums are due the Trustee or the Holders under the
Mortgage Senior
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Partnership Notes or the Senior Note Indenture, the balance of any
award shall be paid to Mortgagor.
(d) Notwithstanding anything contained herein to the contrary,
if an Event of Default shall have occurred and is continuing,
Mortgagee may, at its option, (i) refrain from paying to Mortgagor or
the Insurance Trustee any award or (ii) instruct the Insurance
Trustee to pay to Mortgagee any award then held by the Insurance
Trustee, as the case may be.
Section 5.18. Facility Leases.
(a) Mortgagor shall do or cause to be done all things necessary
to preserve and keep unimpaired the rights of Mortgagor, as lessee
under all Facility Leases, and, to prevent any termination,
surrender, cancellation, forfeiture or impairment of any thereof.
Mortgagor shall at all times fully perform and comply with all
agreements, covenants, terms and conditions imposed upon or assumed
by it as lessee under each of the Facility Leases (including, without
limitation, the covenant to pay rent and all taxes, assessments and
other charges mentioned therein) prior to the expiration of any
notice and/or cure period provided in each such Facility Lease. Upon
receipt by Mortgagee from a Lessor of any written notice of default
by the lessee thereunder, Mortgagee may rely thereon and take any
action Mortgagee deems necessary in its sole discretion to prevent or
to cure any default by Mortgagor in the performance of or compliance
with any of the agreements, covenants, terms or conditions imposed
upon or assumed by Mortgagor as lessee under such Facility Lease,
even though the existence of such default or the nature thereof be
questioned or denied by Mortgagor or by any party on behalf of
Mortgagor. Without limiting the generality of Section 3.9, Mortgagor
hereby expressly grants to Mortgagee, and agrees that Mortgagee shall
have, the absolute and immediate right to enter in and upon the
Premises or any part thereof to such extent and as often as
Mortgagee, in its sole discretion, deems necessary or desirable for
the purpose permitted by the immediately preceding sentence, subject
only to applicable Legal Requirements. Without limiting Mortgagor's
obligations or Mortgagee's rights set forth above or limiting
Mortgagee's other remedies under this Mortgage, Mortgagee may pay and
expend such sums of money as Mortgagee in its sole discretion deems
necessary for any such purpose, and Mortgagor hereby agrees to pay to
Mortgagee immediately and without demand, all such sums referred to
above, so paid and expended by Mortgagee, together with interest
thereon from the date of each such payment at the highest rate of
interest set forth in the Senior Partnership Note. All sums so paid
and expended by Mortgagee, and the interest thereon, shall be added
to and be secured by the lien of this Mortgage.
(b) Mortgagor further covenants and agrees as follows:
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(i) Mortgagor shall not surrender, terminate or cancel any
Facility Lease, and shall not without the consent of Mortgagee
modify, change, supplement, alter or amend any Facility Lease
either orally or in writing if an impairment of the security
granted under this Mortgage would result therefrom. As further
security for the repayment of the indebtedness secured hereby
and for the performance of the covenants herein and in each
Facility Lease contained, Mortgagor hereby assigns to Mortgagee
all of Mortgagor's rights, privileges and prerogatives as lessee
under each Facility Lease to terminate, cancel, modify, change,
supplement, alter or amend such Facility Lease and any such
termination, cancellation, modification, change, supplement,
alteration or amendment of a Facility Lease without the prior
consent thereto by Mortgagee shall be void and of no force and
effect. Unless (1) an Event of Default has occurred and is
continuing and (2) either (A) there has been an acceleration of
maturity of the Senior Partnership Note pursuant to Section 3.2
or (B) Mortgagee exercises its rights under Section 3.9,
Mortgagee shall have no right to terminate, cancel, modify,
change, supplement, alter or amend any Facility Lease.
(ii) Solely for the benefit of Mortgagee, Trustee, the
Holders and no other person, no release or forbearance of any of
Mortgagor's obligations under any Facility Lease, pursuant to
such Facility Lease or otherwise, shall release Mortgagor from
any of Mortgagor's other obligations under this Mortgage.
(iii) Unless Mortgagee shall otherwise expressly consent
in writing, the fee title to the Leased Facilities and
Mortgagor's leasehold estates therein shall not merge and shall
always remain separate and distinct, notwithstanding the union
of said estates either in the Lessor or in the lessee, or in a
third party by purchase or otherwise
(iv) Mortgagor shall promptly notify Mortgagee in writing
of any request made by Mortgagor, as lessee under any Facility
Lease, or any of the Lessors, for arbitration proceedings under
any Facility Lease and of the institution of any arbitration
proceedings, as well as all proceedings thereunder. Mortgagor
shall promptly deliver to Mortgagee a copy of the determination
of the arbitrators in each such arbitration proceeding.
Mortgagee shall have the right to participate in such
arbitration proceedings in association with Mortgagor or on its
own behalf as an interested party.
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(v) Mortgagor shall not consent to the subordination of
any Facility Lease to any mortgage, deed of trust or other lien
on the fee interest of the Lessor.
(vi) If Mortgagor acquires fee simple title or any other
estate, title or interest in any Leased Facility, Mortgagor
shall promptly notify Mortgagee of such acquisition and, on
request by Mortgagee, shall cause to be executed and recorded
all such other and further assurances or other instruments in
writing as may in the opinion of Mortgagee be required or
desirable to carry out the intent and meaning of clause (x) of
Granting Clause Third.
(vii) Within 5 days after Mortgagor's receipt of any
notice of any motion, application or effort to reject any
Facility Lease by any Lessor or any trustee arising from or in
connection with any case, proceeding or other action commenced
or pending by or against any Lessor under the Code or any
comparable provision contained in any present or future federal,
state, local, foreign or other statute, law, rule or regulation
("Comparable Provision"), Mortgagor shall give notice thereof to
Mortgagee. Mortgagor hereby (A) assigns to Mortgagee any and
all of Mortgagor's rights as lessee under Section 365(h) of the
Code or any Comparable Provision and (B) covenants that it shall
not elect to treat any Facility Lease as terminated pursuant to
Section 365(h) of the Code or any Comparable Provision without
the prior consent of Mortgagee and (C) agrees that any such
election by Mortgagor without such consent shall be null and
void.
(viii) Without limiting the generality of the foregoing,
to the extent permitted by applicable law, Mortgagor hereby
unconditionally assigns, transfers and sets over to Mortgagee
all of Mortgagor's claims and rights to the payment of damages
arising from any rejection by Lessor of any Facility Lease under
the Code or any Comparable Provision. Mortgagee shall have the
right to proceed in its own name or in the name of Mortgagor in
respect of any claim, suit, action or proceeding relating to the
rejection of any Facility Lease, including, without limitation,
the right to file and prosecute, in cooperation with Mortgagor,
any proofs of claim, complaints, motions, applications, notices
and other documents, in any case in respect of Lessor under the
Code or any Comparable Provision. This assignment constitutes a
present, irrevocable and unconditional assignment of the
foregoing claims, rights and remedies, and shall continue in
effect until all of the indebtedness and obligations secured by
this Mortgage shall have been satisfied and discharged in full.
Any amounts received by Mortgagee in damages arising out of the
rejection of any Facility Lease as aforesaid shall be applied
first to all reasonable costs and expenses of
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Mortgagee (including, without limitation, reasonable attorneys' fees,
disbursements and court costs) incurred in connection with the
exercise of any of its rights or remedies under this Section 5.18,
and thereafter as provided in Section 3.3.
(ix) If there shall be filed by or against Mortgagor a
petition under the Code or any Comparable Provision and
Mortgagor, as lessee under any Facility Lease, shall determine
to reject such Facility Lease, Mortgagor shall give Mortgagee
not less than 10 days' prior notice of the date on which
Mortgagor shall apply to the Bankruptcy Court or other judicial
body with appropriate jurisdiction for authority to reject such
Facility Lease. Mortgagee shall have the right, but not the
obligation, to serve upon Mortgagor within such 10-day period a
notice stating that (a) Mortgagee demands that Mortgagor assume
and assign such Facility Lease to Mortgagee pursuant to Section
365 of the Code or any Comparable Provision and (b) Mortgagee
covenants to cure or provide adequate assurance of prompt cure
of all defaults and provide adequate assurance of future
performance under such Facility Lease. If Mortgagee serves upon
Mortgagor the notice described in the preceding sentence,
Mortgagor shall not seek to reject such Facility Lease and shall
comply with the demand provided for in clause (a) of the
preceding sentence within 30 days after the notice shall have
been given subject to the performance by Mortgagee of the
covenant provided for in clause (b) of the preceding sentence.
The foregoing provisions of this Section 5.18(ix) shall not
apply to the extent not permitted by applicable law. Effective
upon the entry of an order for relief in respect of Mortgagor
under Chapter 7 of the Code or any Comparable Provision,
Mortgagor hereby assigns and transfers to Mortgagee a
non-exclusive right to apply to the Bankruptcy Court or other
judicial body with appropriate jurisdiction for an order
extending the period during which such Facility Lease may be
rejected or assumed.
(x) Mortgagor shall promptly give to Mortgagee copies of
(A) all notices of default and (B) any other communications or
notices with respect to events that relate to the possible
impairment of the security of this Mortgage, which Mortgagor
shall give or receive under any Facility Lease and shall
promptly notify Mortgagee of any default under any Facility
Lease on the part of the Lessor or Mortgagor.
(xi) Mortgagor shall enforce with due diligence all of the
obligations of the Lessor under each Facility Lease, to the end
that Mortgagor may enjoy all of the rights and privileges
granted to it under the Facility Leases.
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(xii) Mortgagor shall notify Mortgagee within 5 days after
the transfer of a fee interest in any Leased Facility or any
portion thereof to or from an Affiliate.
(xiii) No Affiliate of Mortgagor shall at any time
hereafter acquire fee title to the Leased Land or any portion
thereof unless simultaneously with such acquisition such
Affiliate and Mortgagor execute and exchange (and deliver to the
Trustee an executed counterpart of) an instrument in form and
substance satisfactory to Mortgagee providing that so long as
such Affiliate owns such fee title (A) such Affiliate shall not
terminate the applicable Facility Lease for any reason
whatsoever (including, without limitation, due to the default of
Mortgagor under such FacilitY Lease) and (B) such Affiliate
shall not accept, and, if tendered by Mortgagor shall promptly
return to Mortgagor, any payment of rent or other charges
payable under such Facility Lease in excess of the amount
required to pay the debt service and other sums payable under
any mortgage affecting such Affiliate's fee interest in the
applicable Leased Facility (and such Affiliate shall use such
funds only to pay its debt service obligations and other sums
payable under such mortgage) at any time that an Event of
Default, or a Default of the types described in Section 3.1(a),
(b) and (f) of this Mortgage or Section 5.1(a), (b), (f) or (g)
of the Senior Note Indenture, shall have occurred and be
continuing under this Mortgage or the Senior Note Indenture.
(c) Subject to the provisions of Subsection 5.18(b)(iii), if
both the lessor's and lessee's estates under any Facility Lease or
any portion thereof shall at any time become vested in one owner,
this Mortgage and the lien created hereby shall nevertheless not be
destroyed or terminated by application of the doctrine of merger and,
in such event, Mortgagee shall continue to have all of the rights and
privileges of a first leasehold mortgagee.
(d) Mortgagor hereby acknowledges that if any Facility Lease
shall be terminated prior to the natural expiration of its term due
to default by the lessee thereunder, and if pursuant to such Facility
Lease, Mortgagee or its designee shall acquire from the Lessor a new
lease of the Leased Facility or any portion thereof, Mortgagor shall
have no right, title or interest in or to such lease or the leasehold
estate created thereby, or the options therein contained.
(e) Each Facility Lease hereafter entered into or assumed by
Mortgagor as lessee or sublessee shall contain provisions (i)
permitting the assignment of the same to Mortgagee and the Trustee
and permitting assignment without the lessor's consent if this
Mortgage is foreclosed; and (ii) providing protection to
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Mortgagee, as leasehold mortgagee, in form reasonably satisfactory to
Mortgagee.
Section 5.19. Superior Mortgage.
(a) Mortgagor shall at all times fully perform and comply with
all agreements, covenants, terms and conditions imposed upon or
assumed by it as mortgagor under the Superior Mortgage prior to the
expiration of any notice and/or cure period provided in each such
Superior Mortgage. If a notice of default has been given by the
holder of the Superior Mortgage, Mortgagee may rely thereon and take
any action Mortgagee deems necessary in its sole discretion to
prevent or to cure any default by Mortgagor in the performance of or
compliance with any of the agreements, covenants, terms or conditions
imposed upon or assumed by Mortgagor as mortgagor under the Superior
Mortgage even though the existence of such default or the nature
thereof be questioned or denied by Mortgagor or by any party on
behalf of Mortgagor. Without limiting the generality of Section 3.9,
Mortgagor hereby expressly grants to Mortgagee, and agrees that
Mortgagee shall have, the absolute and immediate right to enter in
and upon the Premises or any part thereof to such extent and as often
as Mortgagee, in its sole discretion, deems necessary or desirable
for the purpose permitted by the immediately preceding sentence,
subject only to applicable Legal Requirements. Without limiting
Mortgagor's obligations or Mortgagee's rights set forth above or
limiting Mortgagee's other remedies under this Mortgage, Mortgagee
may (i) pay and expend such sums of money as Mortgagee in its sole
discretion deems necessary or desirable for any such purpose and (ii)
in its sole discretion prepay the Superior Mortgage then in default,
and Mortgagor hereby agrees to pay to Mortgagee immediately and
without demand, all such sums referred to in (i) and (ii) above so
paid and expended by Mortgagee, together with interest thereon from
the date of each such payment at the highest rate of interest set
forth in the Senior Partnership Note. All sums so paid and expended
by Mortgagee and the interest thereon, shall be added to and be
secured by the lien of this Mortgage.
(b) Mortgagor further covenants and agrees:
(i) Mortgagor shall not, without first obtaining the
consent of Mortgagee in each instance: (A) modify, replace or
refinance the Superior Mortgage if (x) the collateral securing
the lien thereof would be increased thereby (other than after-
acquired property required by the terms of the Superior Mortgage
to be encumbered thereby) or (y) such modification, replacement
or refinancing violates any other provision of this Senior Note
Mortgage or the Senior Note Indenture or (B) acquire or permit
or suffer any Affiliate of Mortgagor to acquire the Superior
Mortgage or any Interest therein;
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(ii) Mortgagor shall timely pay and perform all of the
obligations to be paid or performed by the mortgagor under the
Superior Mortgage, the note secured thereby and any other
instrument evidencing or securing the indebtedness owing to any
holder of the Superior Mortgage;
(iii) at any time and from time to time, Mortgagor shall
upon request of Mortgagee promptly use its reasonable efforts to
obtain an estoppel certificate or letter addressed to Mortgagee
from the holder of the Superior Mortgage, such certificate or
letter to be in such form as Mortgagee shall reasonably request;
(iv) Mortgagor shall promptly give to Mortgagee copies of
(A) all notices of default or (B) any other notice or
communication with respect to events which relate to the
possible impairment of the security of this Mortgage, which
Mortgagor shall give or receive under the Superior Mortgage and
shall promptly notify Mortgagee of any default under the
Superior Mortgage on the part of Mortgagor.
Section 5.20. Indemnification.
Mortgagor shall protect, indemnify, hold harmless and defend
Mortgagee and its directors, officers, partners, shareholders,
agents, servants and employees from and against any and all
liabilities, obligations, claims, damages, penalties, causes of
action, costs and expenses (including, without limitation, reasonable
attorneys' fees, disbursements and court costs), imposed upon or
incurred by or asserted against Mortgagee by reason of (a) any injury
to or death of Persons or loss of or damage to property occurring on
or about the Premises or any part thereof or the adjoining sidewalks,
curbs, vaults and vault spaces, if any, streets, alleys or ways, (b)
any use, nonuse or condition of the Premises or any part thereof or
the adjoining sidewalks, curbs, vaults and vault spaces, if any,
streets, alleys or ways, (c) any failure on the part of Mortgagor to
perform or comply with any of the terms of this Mortgage, (d)
performance of any labor or services or the furnishing of any
materials or other property in respect of the Premises or any part
thereof made or suffered to be made by or on behalf of Mortgagor, (e)
any negligence or tortious act on the part of Mortgagor or any of its
agents, contractors, lessees, licensees or invitees, or (f) any work
in connection with the Premises; provided, that no amounts shall be
payable to Mortgagee under this Section 5.20 in respect of
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damages, penalties, causes of action, costs or expenses imposed upon
or incurred by or asserted against Mortgagee to the extent the same
result from any negligence or tortious act on the part of Mortgagee
or any of its agents, contractors, lessees, licensees or invitees.
All amounts payable to Mortgagee under this Section 5.20 shall be
payable on demand; provided, that with respect to consequential
damages (other than attorneys' fees, disbursements and court costs
imposed upon or incurred by Mortgagee in connection therewith, which
shall in all events be payable on demand), no such amounts shall be
payable until, and to the extent that, (i) there has been entered the
final determination of a court of competent jurisdiction awarding
such consequential damages to the party or parties seeking such
damages or (ii) an agreement of settlement with respect thereto
(which shall have been previously approved by Mortgagor, such consent
not to be unreasonably withheld) shall have been executed by
Mortgagee and such party or parties. Any such amounts which are not
paid within 5 days after demand therefor by Mortgagee shall bear
interest at the rate set forth in the Senior Partnership Note from
the date of such demand and all such amounts and interest thereon
shall be secured by the lien of this Mortgage. In case any action,
suit or proceeding is brought against Mortgagee by reason of any such
occurrence, Mortgagor, upon request of Mortgagee, shall, at
Mortgagor's expense, resist and defend such action, suit or
proceeding or cause the same to be resisted or defended by counsel
designated by Mortgagor and approved by Mortgagee, which approval
shall not be unreasonably withheld; provided, that Willkie, Farr &
Gallagher is hereby approved by Mortgagee.
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed and attested, all as of the day and
year first above written.
TRUMP'S CASTLE ASSOCIATES
Witness: ____________________ By: _________________________
Name:
Title:
TRUMP'S CASTLE FUNDING, INC.
Witness: ____________________ By: _________________________
Name:
Title:
(70)
<PAGE>
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the _____ day of December, 1993, before me personally came
Donald J. Trump, to me known, who, being by me duly sworn, did depose
and say that he resides at 721 Fifth Avenue, New York, New York; that
he is President of Trump's Castle Funding, Inc., one of the
corporations described in and which executed the above instrument;
that he knows the corporate seal of such corporation; that the seal
affixed to said instrument is such corporate seal; that it was so
affixed pursuant to authority of the Board of Directors of such
corporation; and that he signed his name thereto pursuant to like
authority.
(NOTARIAL SEAL)
_________________________
(71)
<PAGE>
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the _____ day of December, 1993, before me personally came
Donald J. Trump, to me known, who, being by me duly sworn, did depose
and say that he resides at 721 Fifth Avenue, New York, New York; that
he is President of Trump's Castle Funding, Inc., one of the
corporations described in and which executed the above instrument;
that he knows the corporate seal of such corporation; that the seal
affixed to said instrument is such corporate seal; that it was so
affixed pursuant to authority of the Board of Directors of such
corporation; and that he signed his name thereto pursuant to like
authority.
(NOTARIAL SEAL)
_________________________
(72)
<PAGE>
<PAGE>
SCHEDULE 1
OWNED LAND
All the real property located in the City of Atlantic City, County of
Atlantic, State of New Jersey and more particularly described as
follows:
Hotel Parcel:
All that certain real property hereinafter particularly described
situate, lying and being in the City of Atlantic City, County of
Atlantic and State of New Jersey.
BEGINNING at the point of intersection of the Northwesterly line of
Huron Avenue (100 feet wide) and the Northeasterly line of the
Atlantic - Brigantine Boulevard, said Boulevard also known as State
Highway Route 87, and extending thence
1. North 45 degrees 50' 06" West in and along the Atlantic-
Brigantine Boulevard, 56.63'; thence
2. North 19 degrees 16' 38" East, still in and along said
Boulevard, 81.94' to a point of curve; thence
3. Curving to the right in the arc of a circle having a radius
of 783.00', the arc length of 72.815' to a point of reverse curve;
thence
4. Curving to the left in the arc of a circle having a radius
of 837.00', the arc length of 77.836' to another point of reverse
curve; thence
5. Curving to the right in the arc of a circle having a radius
of 2946.00', the arc length of 1017.42' to a point; thence
6. North 44 degrees 34' 15" East, 135.02' to a point of curve;
thence
7. Curving to the right in the arc of a circle having a radius
of 2936.00', the arc length of 105.48' to a point; thence
8. South 27 degrees 28' 00" East, at right angles to Huron
Avenue 842.02' to the northwesterly line of Huron Avenue; thence
9. South 62 degrees 32' 00" West, in and along the
northwesterly line of Huron Avenue, 1229.40 feet to the point and
place of BEGINNING.
EXCEPTING THEREOUT AND THEREFROM the property which was conveyed to
the State of New Jersey by the Deed recorded in Deed Book 3980 page
180 and in Deed Book 4031 page 299.
BEING ALSO KNOWN AND DESIGNATED as Lot 9 in Block H-19 on the Tax Map
of the City of Atlantic City.
PARKING FACILITIES PARCEL
BEGINNING at a point in Beach Thorofare at the easterly corner of the
parcel of lands containing an area of 6.199 acres more or less which
was conveyed by the West Jersey and Seashore Railroad Company to the
Press Union Publishing Company by deed dated January 9, 1940, and
recorded January 17, 1940 in Deed Book 1099 page 420, said beginning
point being South 24 degrees 54 minutes 00 seconds West, a distance
of 100.16 feet from a monument set in the southeasterly line of
Absecon Boulevard (also known as U.S. Route 30) (190 feet wide), and
extending from said beginning point; thence,
(1) In Beach Thorofare, South 24 degrees 54 minutes 00 seconds West,
a distance of 259.81 feet to a point; thence
(2) Continuing in and along same, South 44 degrees 54 minutes 00
seconds West, a distance of 445.50 feet to a point; thence,
(3) Continuing in and along same, South 72 degrees 24 minutes 00
seconds West a distance of 224.40 feet to a point; thence
(4) Continuing in and along same, North 68 degrees 21 minutes 00
seconds West, a distance of 478.50 feet to a point; thence
(5) Continuing in and along same, North 76 degrees 06 minutes 00
seconds West, a distance of 363.00 feet to a point; thence
(6) Continuing in and along same, South 82 degrees 39 minutes 00
seconds West, a distance of 429.00 feet to a point; thence,
(7) Continuing in and along same, North 17 degrees 59 minutes 20
seconds East, a distance of 320.65 feet to a point located in
the approximate high water line of Beach Thorofare, said point
also being a corner of lands now or formerly in Daniel Adams, et
al, as recorded in Deed Book CC Page 272; thence,
(8) North 39 degrees 01 minutes 00 seconds West, leaving Beach
Thorofare, in and along the line of lands now or formerly of
Daniel Adams, et al, a distance of 1089.00 feet to a point in
the southeasterly line of lands now or formerly of Lot 307 in
Block 201 as shown on the current official tax map for the City
of Atlantic City, said point also being a corner to lands now or
formerly of Daniel Adams, et al; thence,
(9) North 57 degrees 59 minutes 00 seconds East, in and along the
said lands, a distance of 1113.19 feet to a point in the
aforesaid southwesterly line of Absecon Boulevard; thence,
(10) South 22 degrees 46 minutes 10 seconds East, in and along same,
a distance of 185.42 feet to a point of curve; thence,
(11) Southeastwardly, in and along same and in the arc of a circle
curving to the left having a radius of 1527.69 feet the arc
length of 213.90 feet to a point in the northwesterly line of
Lot 230 in said Block 201; thence,
(12) South 09 degrees 08 minutes 24 seconds East, in the
southwesterly line of Absecon Boulevard, a distance of 87.75' to
a point of curve; thence
(13) Curving to the left along the line of Absecon Boulevard, in the
arc of a circle having a radius of 332.00', the arc length of
201.61' to a point of tangent; thence
(14) South 43 degrees 56 minutes 03 seconds East, continuing in and
along the southwesterly line of Absecon Boulevard, a distance of
128.55' to a point; thence
(15) South 82 degrees 36 minutes 59 seconds East, continuing in and
along the said southwesterly line of Absecon Boulevard, a
distance of 10.00' to a point; thence
(16) Curving to the right along the line of Absecon Boulevard, in the
arc of a circle having a radius of 70.00', the arc length of
47.26' to a point of tangent; thence
(17) North 46 degrees 03 minutes 57 seconds East, along the line of
Absecon Boulevard, a distance of 20.81' to a point which is
radially distant 95.00' from the centerline of Absecon Boulevard
(190' wide) at station 335+98.63'; thence
(18) Curving to the left in the Southwesterly line of Absecon
Boulevard, in the arc of a circle having a radius of 1527.69',
the arc length of 70.33' to the northwesterly line of lot 230 in
said block 201; thence
(19) South 41 degrees 59 minutes 00 seconds West, in and along same,
a distance of 125.00' to the extreme westerly corner of said lot
230; thence
(20) Southeastwardly, in and along the southwesterly line of same,
concentric with Absecon Boulevard, in the arc of a circle
curving to the left, having a radius of 1652.69', the arc length
of 324.55' to the extreme southeasterly corner of said lot 230;
thence
(21) North 30 degrees 43 minutes 55 seconds East, in and along the
southeasterly line of same, a distance of 125.00' to a point in
the aforesaid southwesterly line of Absecon Boulevard; thence
(22) Southeastwardly, in and along same and in the arc of a circle
curving to the left, having a radius of 1527.69', the arc length
of 245.58' to a point of tangency; thence
(23) South 68 degrees 22 minutes 10 seconds East, in and along same,
a distance of 50.00' to a point in the westerly line of the
previously mentioned 6.199 acre parcel, also being the
northwesterly line of lot 150 in said block 201; thence
(24) South 21 degrees 38 minutes 00 seconds West, in and along same,
a distance of 100.00' to a corner in said lot 150; thence
(25) Continuing in and along same, north 68 degrees 22 minutes 10
seconds west, a distance of 94.75' to a corner; thence
(26) Continuing in and along same, south 27 degrees 48 minutes 00
seconds west, a distance of 89.04' to a corner; thence
(27) Continuing in and along same, south 54 degrees 39 minutes 00
seconds west, a distance of 65.88' to a corner; thence
(28) Continuing in and along same, south 71 degrees 53 minutes 00
seconds west, a distance of 201.55' to a corner; thence
(29) Continuing in and along same, south 51 degrees 29 minutes 00
seconds east, a distance of 172.09' to a corner; thence
(30) Continuing in and along same, south 25 degrees 20 minutes 00
seconds east, a distance of 216.73' to a corner; thence
(31) Continuing in and along same and crossing the aforesaid high
water line of Beach Thorofare, south 84 degrees 22 minutes 00
seconds east, a distance of 256.83 to a corner; thence
(32) Continuing in and along same, north 79 degrees 58 minutes 00
seconds east, a distance of 279.10' to a corner; thence
(33) Continuing in and along same, north 41 degrees 22 minutes 00
seconds east, a distance of 266.39 to the point and place of
BEGINNING.
IN compliance with Chapter 157, Laws of 1977 premises herein are
known as Lot 231 in Block 201 as shown on the official tax map of
Atlantic City, New Jersey.
(PEDESTRIAN BRIDGE)
Air rights, rights of way and easements including the right to
construct, maintain and use a Pedestrian Bridge across Huron Avenue
connecting Property One Tract I with Property One Tract III contained
in Ordinance No. 2 of 1988 and affecting the following described
premises:
ALL that certain lot, tract, or parcel of land and premises situate,
lying, and being in the City of Atlantic City, County of Atlantic,
and State of New Jersey, bounded and described as follows:
BEGINNING at a point in the southerly line of Huron Avenue (100'
wide), said point being distant 956.00' eastwardly from the easterly
line of Maryland Avenue (65' wide), if same were extended
northwardly, and extending from said beginning point; thence
(1) North 27 degrees 28 minutes 00 seconds West, crossing Huron
Avenue, a distance of 100.00' to the northerly line of Huron
Avenue; thence
(2) North 62 degrees 32 minutes 00 seconds East, in and along the
northerly line of Huron Avenue, a distance of 30.00'; thence
(3) South 27 degrees 28 minutes 00 seconds East, crossing Huron
Avenue, a distance of 100.00' to the southerly line of Huron
Avenue; thence
(4) South 62 degrees 32 minutes 00 seconds West, in and along the
southerly line of Huron Avenue, a distance of 30.00' to the
point and place of BEGINNING.
BEING an area above the horizontal plane of Huron Avenue between the
elevation of 25.00 M.S.L. datum and 50.00 M.S.L. datum.<PAGE>
SCHEDULE 2
Leased Land
THE FARLEY STATE MARINA SITE
Beginning at the southeasterly corner of Maryland Avenue (68.00'
wide and Huron Avenue 100.00' wide) and extending from said beginning
point; thence
(1) South 27 degrees 28 minutes 00 seconds-East, in and along
the easterly line of Maryland Avenue, a distance of
804.15'; thence
(2) North 62 degrees 32 minutes 00 seconds East parallel with
Huron Avenue, a distance of 200.00'; thence
(3) South 27 degrees 28 minutes 00 seconds East, parallel with
Maryland Avenue, a distance of 1060.85' to a point distant
1745.00' northwardly at right angles from the northerly
line of Mediterranean Avenue (60.00' wide), said point
being in the fifth course as recited in the Riparian Grant
from the State of New Jersey to the City of Atlantic City,
dated March 15, 1920 and recorded in the clerk's office of
Atlantic County in Book 632 of Deeds, Page 117, etc.;
thence
(4) North 62 degrees 32 minutes 00 seconds East, parallel with
Huron Avenue, and in and along said aforementioned Riparian
Grant Line, a distance of 25.00'; thence
(5) North 27 degrees 28 minutes 00 seconds West, parallel with
Maryland Avenue, and in and along said aforementioned
Riparian Grant Line, a distance of 9.26'; thence
(6) North 09 degrees 01 minutes 00 seconds East, in and along
said aforementioned Riparian Grant Line, a distance of
0.04'; thence
(7) North 02 degrees 18 minutes 00 seconds East, in and along
said aforementioned Riparian Grant Line, a distance of
590.00'; thence
(8) North 62 degrees 32 minutes 00 seconds East, parallel with
Huron Avenue, in and along said aforementioned Riparian
Grant Line, a distance of 160.00'; thence
(9) North 41 degrees 39 minutes 00 seconds East, in and along
said aforementioned Riparian Grant Line, a distance of
255.00'; thence
(10) North 47 degrees 34 minutes 00 seconds East, in and along
said aforementioned Riparian Grant Line, a distance of
285.00'; thence
(11) North 56 degrees 02 minutes 00 seconds East, in and along
said aforementioned Riparian Grant Line, a distance of
360.80' to a point distance 1550.00' eastwardly at right
angles from the easterly line of Maryland Avenue; thence
(12) North 27 degrees 28 minutes 00 seconds West, parallel with
Maryland Avenue, a distance of 568.21'; thence
(13) North 62 degrees 32 minutes 00 seconds East, parallel with
Huron Avenue, a distance of 200.00' to the westerly line of
Rhode Island Avenue (50.00' wide); thence
(14) North 27 degrees 28 minutes 00 seconds West in and along
the westerly line of Rhode Island Avenue, a distance of
570.00' to the southerly line of Huron Avenue; thence
(15) South 62 degrees 32 minutes 00 seconds West, in and along
the southerly line of Huron Avenue, a distance of 1750.00'
to the point and place of BEGINNING.
EXCEPTING THEREOUT AND THEREFROM the following parcel of land
described as:
MARINE POLICE BUILDING PARCEL
BEGINNING at a point in the westerly line of Rhode Island Avenue
(50.00 feet wide), said point being distant 570.00 feet south of the
southerly line of Huron Avenue (100.00 feet wide) and extending;
thence
1. South 62 degrees 32 minutes 00 seconds West, parallel with Huron
Avenue, and in and along the division line between Lot 10 and
Lot 11 in Block B-4 as shown on the current taxing plan of the
City of Atlantic City, a distance of 97.97 feet; thence
2. North 27 degrees 28 minutes 00 seconds West, parallel with Rhode
Island Avenue, a distance of 179.00 feet; thence
3. North 62 degrees 32 minutes 00 seconds East, parallel with Huron
Avenue, a distance of 97.97 feet to the Westerly line of Rhode
Island Avenue; thence
4. South 27 degrees 28 minutes 00 seconds East, in and along the
westerly line of Rhode Island Avenue, a distance of 179.00 feet
to the point and place of BEGINNING.
ALSO EXCEPTING THEREON AND THEREFROM such land and improvements being
referred to as the 7 berths on K dock, for use of the Marina Law
Enforcement Bureau as further described in the Lease and further
shown on survey by Arthur W. Ponzio Co. & Assoc., Inc., dated
December 28, 1993 and bearing Job No 18488.
In compliance with Chapter 157, Laws of 1977, premises herein
are known as part of Lot 11 in Block B-4 as shown on the official tax
map of Atlantic City, New Jersey.
<PAGE>
SCHEDULE 3
Existing Encumbrances
<PAGE>
SCHEDULE 4
FORM OF NON-DISTURBANCE
AND ATTORNMENT AGREEMENT
THIS AGREEMENT, made as of the ______ day of ________
by and between
having an office at
(hereinafter called "Mortgagee") and
a having an
office at (hereinafter
called "Tenant").
W I T N E S S E T H:
WHEREAS, Mortgagee is the mortgagee under that certain
Indenture of Mortgage dated _____________ (said mortgage, as it
may be amended, increased, renewed, modified, consolidated, replaced,
combined, substituted, severed, split, spread or extended, being
hereinafter referred to as the "Mortgage") between Trump's Castle
Funding, Inc. ("Funding") and Trump's Castle Associates which
encumbers Trump's Castle Casino Hotel and certain other real property
located in Atlantic City, New Jersey, more particularly described in
Exhibit A hereto. Funding assigned all of its right, title and
interest in the Mortgage to _____________________ , as Trustee,
pursuant to an Assignment Agreement dated ______ , 1993; and
WHEREAS, Tenant has entered into a certain agreement
of lease dated [as amended by agreements dated
and ] and as it may be hereafter amended from time to
time (the "Lease") covering (the "Demised Premises").
NOW, THEREFORE, in consideration of the mutual agreements herein
contained and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree
as follows:
1. Tenant covenants and agrees that the Lease now is and shall
at all times continue to be subject and subordinate in each and every
respect to the Mortgage. Tenant, upon request, shall execute and
deliver any certificate or other instrument which the Mortgagee may
reasonably request to confirm said subordination by Tenant.
2. Tenant certifies that the Lease is presently in full force
and effect and unmodified and no base rent payable thereunder has
been paid more than one (1) Year in advance of its due date, and that
no default exists under the Lease which has continued beyond the
expiration of any applicable grace period.
3. As long as Tenant is in compliance with the terms of this
Agreement and no default exists under the Lease which has continued
beyond the expiration of any applicable grace period, Mortgagee shall
not name Tenant as a party defendant to any action for foreclosure or
other enforcement thereof (unless required by law), nor shall the
Lease be terminated by mortgagee in connection with, or by reason of,
foreclosure or other proceedings for the enforcement of the Mortgage,
or by reason of a transfer of the landlord's interest under the Lease
pursuant to the taking of a deed in lieu of foreclosure (or similar
device), nor shall Tenant's use or possession of the Demised Premises
be interfered with by Mortgagee, unless the holder of the landlord's
interest under the Lease (the "Landlord") would have had such right
if the Mortgage had not been made, except that the person acquiring,
or succeeding to the interests of the Landlord as a result of any
such action or proceeding, and such person's successors and assigns
(any of the foregoing being hereinafter referred to as the
Successor"), shall not be:
(a) subject to any credits, offsets, defenses or claims
which Tenant might have against any prior landlord; nor
(b) bound by any base rent which Tenant might have paid for
more than the current month to any prior landlord, unless such
prepayment shall have been made with Mortgagee's prior written
consent; nor
(c) liable for any act or omission of any prior landlord;
nor
(d) bound by any covenant to undertake or complete any
improvement to the Demised Premises or the building forming a
part of the Property; nor
(e) be required to account for any security deposit other
than any security deposit actually delivered to the Successor;
nor
(f) liable for any payment to Tenant of any sums, or the
granting to Tenant of any credit, in the nature of a
contribution towards the cost of preparing, furnishing or moving
into-the Demised Premises or any portion thereof.
4. If the interest of the Landlord under the Lease shall be
transferred by reason of foreclosure or other proceedings for
enforcement of the Mortgage or pursuant to a taking of a deed in lieu
of foreclosure (or similar device), Tenant shall be bound to the
Successor, and, except as provided in this Agreement, the Successor
shall be bound to Tenant, under all of the terms, covenants and
conditions of the Lease for the balance of the term thereof
remaining, with the same force and effect as if the Successor were
the Landlord, and Tenant does hereby (i) agree to attorn to the
Successor, including Mortgagee if it be the Successor, as its
landlord, (ii) affirm its obligations under the Lease, and (iii)
agree to make payments of all sums due under the Lease to the
Successor, said attornment, affirmation and agreement to be effective
and self-operative without the execution of any further instruments,
upon the Successor succeeding to the interest to the Landlord under
the Lease. Tenant waives the provisions of any statute or rule of
law now or hereafter in effect that may give or purport to give it
any right or election to terminate or otherwise adversely affect the
Lease or the obligations of Tenant thereunder by reason of any
foreclosure or similar proceeding.
5. This Agreement may not be modified except by an agreement
in writing signed by the parties or their respective successors in
interest. This Agreement shall inure to the benefit of and be
binding upon the parties hereto, their respective heirs,
representatives, successors and assigns.
6. Nothing contained in this Agreement shall in any way impair
or affect the lien created by the Mortgage except as specifically set
forth herein.
7. The Tenant agrees that this Agreement satisfies any condition
or requirement in the Lease relating to the granting of a
non-disturbance agreement by Mortgagee. Tenant further agrees that
in the event there is any inconsistency between the terms and
provisions hereof and the terms and provisions of the Lease dealing
with non-disturbance by Mortgagee, the terms and provisions hereof
shall be controlling.
8. All notices, demands or requests made pursuant
to, under, or by virtue of this Agreement must be in writing
and mailed to the party whom the notice, demand or request is
being made by certified or registered mail, return receipt requested,
at its address set forth above. Any party may change the place that
notices and demands are to be sent by written notice delivered in
accordance with this Agreement.
9. This Agreement shall be governed by the laws of the State
of New Jersey. If any term of this Agreement or the application
thereof to any person or circumstances shall to any extent be invalid
or unenforceable, the remainder of this Agreement or the application
of such term to any person or circumstances other than those as to
which it is invalid or unenforceable shall not be affected thereby,
and each term of this Agreement shall be valid and enforceable to the
fullest extent permitted by law.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have hereunto caused this
Agreement to be duly executed as of the day and year first above
written.
MORTGAGEE
By:________________________________
TENANT
By:_________________________________
[Acknowledgments]
SENIOR PARTNERSHIP NOTE
$27,000,000 December 28, 1993
FOR VALUE RECEIVED, TRUMP'S CASTLE ASSOCIATES, a general
partnership existing under the laws of the State of New Jersey
(the "Partnership"), hereby promises to pay to the order of
TRUMP'S CASTLE FUNDING, INC., a corporation duly organized and
existing under the laws of the State of New Jersey ("TCFI", such
corporation and any subsequent holder of this Note being herein
referred to as the "Payee"), having its principal office at
Trump's Castle Casino Resort, Brigantine Boulevard at Huron
Avenue, Atlantic City, New Jersey 08401, on November 15, 2000,
or, if earlier, any other Maturity Date (as such term is defined
in the Indenture hereinafter referred to) of the Senior Notes (as
hereinafter defined), a principal sum equal to the aggregate
principal amount of TCFI's 11.5% Senior Secured Notes due 2000
(the "Senior Notes") issued by TCFI pursuant to that certain
Indenture dated as of the date hereof (the "Indenture"), among
TCFI, as Issuer, the Partnership, as Guarantor, and First Bank
National Association, a national banking association, as Trustee
(such national banking association, and any successor pursuant to
the terms of the Indenture, being referred to as the "Trustee"),
Outstanding on such Maturity Date and to pay interest on the
unpaid balance hereof at the rate of 11.5% per annum from the
date hereof to such Maturity Date in semiannual installments of
interest on each May 15 and November 15 (each an "Interest
Payment Date"), commencing on May 15, 1994; provided, however,
if, as of a date prior to November 15, 1998, TCFI shall have
defeased or redeemed all the then Outstanding PIK Notes (as
defined in the Indenture) through the application of the proceeds
of one or more Equity Offerings (as defined in the Indenture) or
of internally generated funds and not through the incurrence of
additional indebtedness, then on and after the first day of the
calendar month next commencing after such date the aforesaid
interest rate of 11 1/2% per annum shall be reduced to 11 1/4%
per annum. The principal amount of this Note as of the date
hereof is $27,000,000.
Payments of principal and interest on this Note shall be
made at the address of the Payee set forth above, or at such
other address as the Payee may from time to time designate in
writing. Interest will be computed on the basis of a 360-day
year of twelve 30-day months. Principal and interest shall be
(1)
<PAGE>
paid in money of the United States that at the time of payment is
legal tender for public and private debts.
All terms in this Note defined in the Indenture shall have
the same meaning herein as therein, unless the context requires
otherwise.
1. (a) This Note shall be prepaid (or, as described below,
shall be deemed to have been prepaid) (i) in connection with any
mandatory redemption or optional redemption or the defeasance or
the covenant defeasance of the Senior Notes or (ii) in connection
with the purchase or other acquisition by the Partnership or TCFI
of any Senior Notes and the surrender of such Senior Notes to the
Trustee for cancellation in accordance with the provisions of the
Indenture (it being expressly understood that the same Senior
Note shall reduce the principal amount of this Note only once).
(b)(i) Each prepayment in respect of any redemption of
Senior Notes (A) shall be made at the time that payment in
respect of such redemption is required to be made to the Paying
Agent under the Indenture and (B) shall be in an amount equal to
the aggregate amount paid to holders of Senior Notes on account
of the redemption thereof.
(ii) A prepayment in respect to a defeasance or covenant
defeasance of the Senior Notes (A) shall be deemed to have been
made at the time that payment in respect of such defeasance or
covenant defeasance is made to the Trustee in accordance with
Article Four of the Indenture and (B) shall be deemed to have
been made in an amount equal to the entire outstanding
indebtedness represented by this Note and, upon such prepayment,
this Note shall be deemed to have been cancelled.
(iii) Each prepayment in respect of any purchase or other
acquisition by the Partnership or TCFI of Senior Notes and
surrender of such Senior Notes to the Trustee for cancellation
(A) shall be deemed to have been made at the time of surrender of
the Senior Notes for cancellation and (B) shall be deemed to have
been made in an amount equal to the entire outstanding
indebtedness represented by the Senior Notes surrendered for
cancellation.
2. Except as set forth in paragraph 1 above, this Note may
not be prepaid, in whole or in part.
3. The Partnership shall pay interest on overdue principal
in accordance with the provisions of the Indenture.
4. This Note is secured by an Indenture of Mortgage and
Security Agreement made by the Partnership, as mortgagor, to
TCFI, as mortgagee, dated as of the date hereof (the "Senior Note
(2)
<PAGE>
Mortgage") on property described in the Senior Note Mortgage (the
"Property").
5. If (i) the Partnership defaults in the payment of
interest hereunder when the same becomes due and payable and the
default continues for a period of thirty (30) days; (ii) the
Partnership defaults in the payment of the principal hereunder or
any part thereof when the same becomes due and payable, at
Maturity; (iii) there shall occur any other Event of Default
under the Senior Note Mortgage; or (iv) there shall occur any
Event of Default under the Indenture, then on the happening of
any such event, the Payee may declare the entire outstanding
principal amount of this Note and all accrued and unpaid interest
thereon and all sums due under this Note and the Senior Note
Mortgage to become immediately due and payable.
6. The Partnership hereby waives presentment and demand for
payment, notice of dishonor, protest and notice of protest of
this Note and agrees to pay all costs of collection when
incurred, including reasonable attorneys' fees, which costs may
be added to the amount due under this Note and be receivable
therewith, and to perform and comply with each of the terms,
covenants and provisions contained in this Note and the Senior
Note Mortgage on the part of the Partnership to be observed or
performed. Except as expressly provided herein, no release of
any security for the principal sum due under this Note or
extension of time for payment of this Note, or any installment
hereof, and no alteration, amendment or waiver of any provision
of this Note or the Senior Note Mortgage shall release,
discharge, modify, change or affect the liability of the
Partnership under this Senior Note or the Senior Note Mortgage.
7. The Partnership covenants (to the extent that it may
lawfully do so) that it will not at any time insist upon, or
plead, or in any manner whatsoever claim or take the benefit or
advantage of, any usury, stay or extension law or any other law
which would prohibit or forgive the Partnership from paying all
or any portion of the interest on this Note, wherever enacted,
now or at any time hereafter in force, or which may otherwise
affect the covenants or the performance of this Note or the
Senior Note Mortgage; and the Partnership (to the extent that it
may lawfully do so) hereby expressly waives all benefit or
advantage of any such law, and covenants that it will not hinder,
delay or impede the execution of any power herein granted to the
Payee, but will suffer and permit the execution of every such
power as though no such law had been enacted.
8. The terms of this Note shall be governed by and
construed under the internal laws of the State of New Jersey,
without giving effect to principles of conflicts of law.
(3)
<PAGE>
9. This Note may not be changed or terminated orally, but
only by an agreement in writing signed by the party against whom
enforcement of such change or termination is sought.
10. The Partnership shall not claim any credit or deduction
from the interest or principal due hereunder by reason of payment
of any tax assessed upon the Property.
11. Whenever the provisions of this Note and the provisions
of the Indenture shall be inconsistent, the provisions of the
Indenture shall govern.
12. This Note is subject to and shall be enforced in
compliance with the provisions of the New Jersey Casino Control
Act.
13. Notwithstanding anything herein or in any other
agreement, document, certificate, instrument, statement or
omission referred to below to the contrary, the Partnership is
liable hereunder only to the extent of the assets of the
Partnership and no other person or entity, including, but not
limited to, any partner, officer, representative, committee or
committee member of the Partnership or any partner therein or of
any Affiliate of the Partnership, or any incorporator, officer,
director or shareholder of any corporate partner of the
Partnership or of any corporate Affiliate of the Partnership, or
any Affiliate or controlling person or entity of any of the
foregoing, or any agent, employee, or lender of any of the
foregoing, or any successor, personal representative, heir or
assign of any of the foregoing, in each case past, present or as
they may exist in the future, shall be liable in any respect
(including without limitation for the breach of any
representation, warranty, covenant, agreement, condition or
indemnification or contribution undertaking contained herein or
therein) under, in connection with, arising out of or relating to
this Note, or any other agreement, document, certificate,
instrument or statement (oral or written) related to, executed or
to be executed, delivered or to be delivered, or made or to be
made, or any omission made or to be made, in connection with any
of the foregoing or any of the transactions contemplated in any
such agreement, document, certificate, instrument or statement.
Any agreement, document, certificate, statement or other
instrument to be executed simultaneously with, in connection
with, arising out of or relating to this Note, the Senior Note
Mortgage, the Indenture, the Senior Notes or any other agreement,
document, certificate, statement or instrument referred to above,
or any agreement, document, certificate, statement or instrument
contemplated hereby shall contain language mutatis mutandis to
this paragraph and, if such language is omitted, shall be deemed
to contain such language.
(4)
<PAGE>
14. Whenever used herein, the singular number shall include
the plural, the plural the singular, and the words "Payee" and
"Partnership" shall include their respective successors and
assigns.
IN WITNESS WHEREOF, the Partnership has duly executed this
Note as of the day and year first above written.
TRUMP'S CASTLE ASSOCIATES,
a New Jersey general
partnership
Attest:____________________ BY: _______________________________
Secretary Donald J. Trump,
its Managing Partner
(5)
<PAGE>
<PAGE>
STATE OF NEW YORK )
ss.:
COUNTY OF NEW YORK )
BE IT REMEMBERED, that on ____________, 1993, before me, the
subscriber, personally appeared DONALD J. TRUMP, the Managing
Partner of TRUMP'S CASTLE ASSOCIATES, a New Jersey general
partnership, who, I am satisfied, is the person who has signed
the within instrument on behalf of such general partnership, and
I having first made known to him the contents thereof he
thereupon acknowledged that he signed and delivered the said
instrument in his capacity as such Partner aforesaid, and that
the within instrument is the voluntary act and deed of said
general partnership.
_______________________________
Notary Public
(6)
<PAGE>
SENIOR ASSIGNMENT AGREEMENT
dated as of December 28, 1993
by
TRUMP'S CASTLE FUNDING, INC.,
a New Jersey corporation, as Assignor
to
FIRST BANK NATIONAL ASSOCIATION,
as Trustee of the Senior Note Indenture, as Assignee
Prepared by_________________________
John A. Ritsher, Esq.
Ropes & Gray
One International Place
Boston, Massachusetts 02110
(617) 951-7000
<PAGE>
SENIOR ASSIGNMENT AGREEMENT
This ASSIGNMENT AGREEMENT (the "Assignment") dated as of
December 28, 1993 from TRUMP'S CASTLE FUNDING, INC., a New Jersey
corporation ("Assignor"), to FIRST BANK NATIONAL ASSOCIATION, a
national banking association, as Trustee under the Indenture, as
defined below ("Assignee") and as successor trustee to First
Fidelity Bank, National Association.
W I T N E S S E T H:
WHEREAS, Assignor, a wholly-owned subsidiary of Trump's
Castle Associates, a New Jersey general partnership (the
"Partnership"), functions as the Partnership's financing vehicle
for advancing to the Partnership the proceeds of various issues
of Assignor's debt securities against receipt of the
Partnership's promissory notes, secured by a mortgage upon the
Partnership's assets; and
WHEREAS, in the hereof, Assignor has issued and sold $27
million principal amount of its 11 1/2% Senior Secured Notes due
2000, pursuant to the provisions of an Indenture of even date
herewith entered into among the Assignor, as issuer, Trump's
Castle Associates (the "Partnership"), as guarantor, and First
Bank National Association, as Trustee, and has loaned said
proceeds to the Partnership, its parent, in exchange for the
Partnership's Senior Partnership Note on the principal amount of
$27 million which is secured by an Indenture of Mortgage and
Security Agreement (the "Senior Note Mortgage") dated of even
date herewith, between the Partnership, as mortgagor, and the
Assignor, as mortgagee; and
WHEREAS, certain terms defined in the Senior Note Indenture
are used herein with the meanings there provided.
NOW, THEREFORE, THIS ASSIGNMENT
FURTHER WITNESSETH:
Assignor, for good and valuable consideration, the receipt
of which is hereby acknowledged, does hereby sell, assign and
transfer unto Assignee and unto its successors and to its assigns
forever, for its benefit and for the benefit of the Holders, and
does hereby grant to Assignee a security interest in and to all
of Assignor's estate, right, title and interest in, to and under
any and all of the following described property, rights and
interests (collectively, the "Assigned Properties"), but
expressly excluding the Subordinated Partnership Note:
(1)
<PAGE>
GRANTING CLAUSE FIRST
All right, title and interest of Assignor in and to the
Senior Partnership Note, including all renewals, extensions and
modifications of the same, and, without limiting the generality
of the foregoing, the present, continuing and future right to
make claim for, collect or cause to be collected, receive or
cause to be received directly from the Partnership thereunder,
all payments of principal, interest and other sums of money
payable thereunder.
GRANTING CLAUSE SECOND
All right, title and interest of Assignor in and to the
Senior Note Mortgage, including all extensions, renewals and
modifications of the same.
TO HAVE AND TO HOLD all of said properties, rights and
interests unto Assignee and its successors and assigns forever.
THIS ASSIGNMENT FURTHER WITNESSETH, that Assignor hereby
agrees and covenants with Assignee as follows:
ARTICLE I
PARTICULAR COVENANTS OF ASSIGNOR
Section 1.01. Performance of Covenants. Assignor
represents, warrants and covenants that it is duly authorized to
enter into this Assignment, and to grant and convey a lien on and
security interest in the Assigned Properties to Assignee in the
manner and to the extent herein set forth and that all action on
its part required for the execution and delivery of this
Assignment has been duly and effectively taken.
Section 1.02. Further Action Required.
(a) Assignor covenants that it will, from time to time,
execute and deliver such further instruments and take such
further actions as may be reasonably required to carry out the
purposes of this Assignment.
(b) Assignor hereby appoints Assignee as its lawful
attorney-in-fact (such power being coupled with an interest) in
the name of Assignor or Assignee or both to execute any
instruments or to take any actions to enforce all rights, powers
and remedies of Assignor under or pursuant to the Assigned
Properties.
(c) Nothing contained herein shall limit the rights of
Assignee contained in the Note Mortgage or the Mortgage Note
Indenture.
(2)
<PAGE>
ARTICLE II
OBLIGATIONS OF ASSIGNEE
Section 2.01. Continuing Obligations.
(a) Assignee shall have no obligation, duty or liability
with respect to the Assigned Properties or any of them (other
than those specifically assumed in its capacity as Trustee
pursuant to the Senior Note Indenture).
(b) Assignor shall at all times remain liable to observe and
perform all of its covenants and obligations, if any, under the
Assigned Properties, and does hereby agree to indemnify and hold
harmless Assignee, its successors and assigns, from any
liability, loss, damage or expense it or they may incur under the
Assigned Properties or by reason of this Assignment.
ARTICLE III
PAYMENTS
Section 3.01. Payments. All Revenues (as hereinafter
defined) due and to become due under or pursuant to the Assigned
Properties shall be paid by the Partnership directly to Assignee
at the address set forth in Section 6.02 hereof.
Section 3.02. Acknowledgment. The Partnership hereby joins
in the execution of this Assignment to acknowledge (i) the
assignment by Assignor to Assignee of Assignor's right, title and
interest in, to and under the Assigned Properties, (ii) the
Partnership's agreement to make payment of all Revenues under the
Assigned Properties directly to Assignee at the address set forth
in this Assignment, and (iii) the right of Assignee to exercise
or enforce in its own name, in the name of Assignor, or both, all
of the rights, powers and remedies of Assignor in, to and under
the Assigned Properties.
Section 3.03. Revenues. As used herein, the term
"Revenues" shall mean (a) all amounts paid or payable by the
Partnership under the Senior Partnership Note, the Senior Note
Indenture, or the Senior Note Mortgage, and (b) the net proceeds
realized upon or as a result of the enforcement of any mortgage
lien or security interest granted under the Assigned Properties
or this Assignment or upon or as a result of the exercise of any
right or remedy under the Assigned Properties or this Assignment.
Section 3.04. Confirmation. Assignor hereby agrees, and
the Partnership hereby acknowledges, that the Partnership may
(3)
<PAGE>
rely exclusively on Assignee's directive that Assignee is
entitled to take action under this Assignment.
ARTICLE IV
DEFAULT PROVISIONS AND REMEDIES
Section 4.01. Enforcements of Remedies.
(a) Upon the occurrence and continuance of any Event of
Default (as such term is defined in the Mortgage Note Indenture;
each an "Event of Default"), Assignee may (upon the direction of
the Holders or, if the rights of the Holders would be prejudiced
by any delay in taking such action, without the direction of the
Holders), at its option, (i) proceed directly to protect and
enforce its rights and the rights of any Holders under this
Assignment or pursuant to the Assigned Properties, or any one of
them, by such suits, actions or special proceedings in equity or
at law, or by proceedings in the office of any board or officer
having jurisdiction, either for the specific performance of any
covenant or agreement contained herein, or in the Assigned
Properties, or any of them, or in aid of execution of any power
granted herein or pursuant to the Assigned Properties, or any one
of them, or for the enforcement of any proper legal or equitable
remedy, including, without limitation, foreclosure of the Senior
Note Mortgage and/or the sale of the collateral or any part
thereof secured thereby at such foreclosure sale, subject to
statutory and other legal requirements, as Assignee shall deem
most effective to protect and enforce such rights, and Assignor
hereby appoints Assignee as its lawful attorney-in-fact (such
power being coupled with an interest) in the name of Assignor or
Assignee or both to effectuate such foreclosure and/or sale of
such collateral or part thereof; or (ii) instruct, direct and
cause Assignor to effectuate the foregoing on behalf of and for
the benefit of Assignee and the Holders, it being further
understood that the Partnership joins in the execution of this
Assignment in order to acknowledge its agreement to promptly and
duly execute and deliver any and all documents and take any and
all actions required by Assignee in order to permit Assignee to
foreclose and/or sell such collateral or part thereof, and obtain
the benefits of this Assignment, as aforesaid.
(b) Upon the occurrence and continuance of any such Event of
Default, Assignee shall (upon the direction of the Holders or, if
the rights of the Holders would be prejudiced by any delay in
taking such action, without the direction of the Holders) be
entitled to sue for, enforce payment of and receive any and all
amounts then and at any time remaining due from Assignor or the
Partnership for principal and interest on the Senior Partnership
Note, or other sums due under the Senior Note Mortgage or the
Senior Note Indenture, as the case may be, or otherwise under any
(4)
<PAGE>
of the provisions of the Assigned Properties, or any of them, in
any of such events with interest on overdue payments of such
principal, as set forth in the Senior Partnership Note, from the
date of such Event of Default to the date of such payment,
together with any and all fees, costs and expenses of collection
(including reasonable attorneys' fees and court costs), subject
to statutory and other legal requirements.
(c) Regardless of the occurrence of an Event of Default,
Assignee may institute and maintain or cause in the name of
Assignor or Assignee or both to be instituted and maintained such
suits and proceedings as Assignee may be advised by its counsel
shall be necessary and appropriate to prevent any impairment of
the Assigned Properties, or any of them, and to protect its
interests in the Assigned Properties, and in the rents, issues,
rights, revenues and other income arising therefrom, including
power to institute and maintain proceedings to restrain the
enforcement or compliance with any governmental enactment, rule
or order that may be unconstitutional or otherwise invalid, if
the enforcement of or compliance with such enactment, rule or
order would impair the security hereunder or would be materially
prejudicial to the interest of the Assignee.
(d) Nothing contained in this Article IV is intended to
grant Assignee any greater remedies and rights than those allowed
to Assignor in the respective Assigned Properties. In the event
or any conflict between the remedies and rights contained in any
of the Assigned Properties and the remedies and rights contained
in this Article IV, the remedies and rights set forth in the
applicable Assigned Property shall govern.
ARTICLE V
DISCHARGE OF ASSIGNMENT
Section 5.01. Discharge of Assignment. If Assignor shall
pay or cause to be paid, or there shall otherwise be paid, to
Assignee and/or the Holders, all amounts required to be paid by
Assignor pursuant to the Senior Note Indenture and the Senior
Notes, and the conditions precedent for the Senior Note Indenture
to cease, determine and become null and void (except for any
surviving rights of transfer or exchange of the Senior Notes and
any right to receive payments of principal and interest as
provided in Article Thirteen or Section 10.3 of the Senior Note
Indenture) in accordance with Article Thirteen of the Senior Note
Indenture, Assignee shall promptly cancel and discharge of record
this Assignment and any financing statements filed in connection
herewith and execute and deliver to Assignor and to the
Partnership all such instruments as may be appropriate to
evidence such discharge and satisfaction of any lien or liens,
and Assignee shall pay over or deliver to Assignor all other
(5)
<PAGE>
moneys and securities held by it pursuant to this Assignment,
which are not required for the payment of (a) principal and
redemption price, if applicable, of and interest on, the Senior
Notes and (b) and all other amounts required to be paid by
Assignor pursuant to the Senior Note Indenture and the Senior
Notes.
ARTICLE VI
MISCELLANEOUS PROVISIONS
Section 6.01. Binding Successors and Assigns. All of the
covenants, stipulations, obligations and agreements contained
in this Assignment shall be binding upon and inure to the benefit
of Assignor, Assignee and the Partnership and their respective
successors and assigns.
Section 6.02. Notices.
Any request, notice, demand, authorization, direction,
request or other instrument authorized or required by this
Assignment to be given to or filed with Assignor, Assignee, or
the Partnership (collectively "Notices") shall be deemed given
when either (i) delivered by hand (including by overnight
courier) or (ii) two days after sending by registered or
certified mail, postage prepaid, addressed as follows:
(i) To Assignee:
First Bank National Association
c/o First Trust National Association
180 East Fifth Street
St. Paul, Minnesota 55010
Attention: Corporate Trust and Agency Group
(ii) To Assignor:
Trump's Castle Funding, Inc.
Trump Castle Casino Resort
Brigantine Boulevard at Huron Avenue
Atlantic City, New Jersey 08401
Attention: Chief Executive Officer
and
(6)
<PAGE>
The Trump Organization, Inc.
725 Fifth Avenue
New York, New York 10022
Attention: Donald J. Trump
(iii) To the Partnership:
Trump's Castle Associates
Trump Castle Casino Resort by the Bay
Brigantine Boulevard at Huron Avenue
Atlantic City, New Jersey 08401
Attention: Chief Executive Officer
and
The Trump Organization, Inc.
725 Fifth Avenue
New York, New York 10022
Attention: Donald J. Trump
and
Willkie Farr & Gallagher
One Citicorp Center
153 East 53rd Street
New York, New York 10022
Attention: Thomas M. Cerabino, Esq.
(b) By Notice to the Partnership, Assignor and or Assignee,
given as provided above, any party may designate additional or
substitute addresses for Notices, which shall, notwithstanding
Subsection (a) above, be deemed given when received.
Section 6.04. Partial Invalidity. In case any one or more
of the provisions of this Assignment shall for any reason be held
to be illegal or invalid, such illegality or invalidity shall not
affect any other provision of this Assignment, but this
Assignment shall be construed and enforced at the time as if such
illegal or invalid provisions had not been contained herein or
therein, nor shall such illegality or invalidity or any
application thereof affect any legal and valid application herein
or thereof from time to time.
Section 6.05. Applicable Law. This Assignment shall be
governed by and construed under the internal laws of the State of
New Jersey, without giving effect to the principles of conflicts
of law.
(7)
<PAGE>
Section 6.06. No Amendments. For so long as the Senior
Notes shall remain outstanding, this Assignment may not be
modified, amended or terminated except in accordance with the
provisions of the Senior Note Indenture or the Assigned
Properties.
Section 6.07. Casino Control Act. Each of the provisions
of this Assignment is subject to and shall be enforced in
compliance with the provisions of the New Jersey Casino Control
Act.
Section 6.08. Limitation on Liability. Notwithstanding
anything herein or any other agreement, document, certificate,
instrument, statement or omission referred to below to the
contrary, the Partnership and the Assignor are liable hereunder
only to the extent of the assets of the Partnership and the
interest of the Assignor in the Assigned Properties which are
secured by the Partnership's assets and no other person or
entity, including, but not limited to, any partner, officer,
representative, committee or committee member of the Partnership
or any partner therein or of any Affiliate (as defined in the
Indenture) of the Partnership or any incorporator, officer,
director or shareholder of the Assignor, of any corporate partner
of the Partnership, or of any corporate Affiliate of the
Partnership, or any Affiliate or controlling person or entity of
any of the foregoing, or any agent, employee or lender of any of
the foregoing or any successor, personal representative, heir or
assign of any of the foregoing, in each case past, present or as
they may exist in the future, shall be liable in any respect
(including without limitation for the breach of any
representation, warranty, covenant, agreement, condition or
indemnification or contribution undertaking contained herein or
therein) under, in connection with, arising out of or relating to
this Assignment, or any other agreement, document, certificate,
instrument or statement (oral or written) related to, executed or
to be executed, delivered or to be delivered, or made or to be
made, or any omission made or to be made, in connection with any
of the foregoing or any of the transactions contemplated in any
such agreement, document, certificate, instrument or statement.
Any agreement, document, certificate, statement or other
instrument to be executed simultaneously with, in connection
with, arising out of or relating to this Assignment or any other
agreement, document, certificate, statement or instrument
referred to above, or any agreement, document, certificate,
statement or instrument contemplated hereby shall contain
language mutatis mutandis to this paragraph and, if such language
is omitted, shall be deemed to contain such language.
6.09. Indemnification. Assignor agrees to indemnify
Assignee for, and to hold it harmless against, any loss,
liability or expense incurred without negligence or bad faith
on its part, arising out of or in connection with the
(8)
<PAGE>
acceptance or administration of this Assignment, including the
costs and expenses of defending itself against any claim, or with
the exercise or performance of any of its powers or duties
hereunder.
IN WITNESS WHEREOF, Assignor, Assignee, and the Partnership
have executed this Assignment as of the date first above written.
TRUMP'S CASTLE FUNDING, INC.
Attest:_____________________ By: _________________________
Secretary Donald J. Trump, President
TRUMP'S CASTLE ASSOCIATES,
a New Jersey general partnership
Attest:_____________________ By: _________________________
Secretary Donald J. Trump,
its Managing Partner
FIRST BANK NATIONAL ASSOCIATION,
as Trustee under the Senior
Note Indenture
Attest:_____________________ By: _________________________
Assistant Secretary Title:
(9)
<PAGE>
<PAGE>
STATE OF NEW YORK ss.:
COUNTY OF NEW YORK
BE IT REMEMBERED, that on December___, 1993, before me, the
subscriber, personally appeared DONALD J. TRUMP, the Managing
Partner of TRUMP'S CASTLE ASSOCIATES, a New Jersey general
partnership, who, I am satisfied, is the person who has signed
the within instrument on behalf of such general partnership, and
I having first made known to him the contents thereof he
thereupon acknowledged that he signed and delivered the said
instrument in his capacity as such Managing Partner aforesaid,
and that the within instrument is the voluntary act and deed of
said general partnership.
______________________________
Notary Public
(10)
<PAGE>
<PAGE>
STATE OF NEW YORK ss.:
COUNTY OF NEW YORK
BE IT REMEMBERED, that on December____, 1993, before me, the
subscriber, personally appeared DONALD J. TRUMP, the President of
TRUMP'S CASTLE FUNDING, INC., the corporation named in the within
document, who, I am satisfied, is the person who has signed the
within instrument; and I having first made known to him the
contents thereof he acknowledged that he signed, sealed with the
corporate seal and delivered the said instrument as such officer
aforesaid; that the within instrument is the voluntary act and
deed of the corporation, made by virtue of authority from its
Board of Directors.
______________________________
Notary Public
(11)
<PAGE>
<PAGE>
STATE OF NEW YORK ss.:
COUNTY OF NEW YORK
BE IT REMEMBERED, that on _______, 1993, before me, the
subscriber, personally appeared Frank P. Leslie, an Assistant
Vice President of FIRST BANK NATIONAL ASSOCIATION, the
corporation named in the within document, who, I am satisfied, is
the person who has signed the within instrument; and I having
first made known to him the contents thereof he acknowledged that
he signed, sealed with the corporate seal and delivered the said
instrument as such officer aforesaid; that the within instrument
is the voluntary act and deed of the corporation, made by virtue
of authority from its Board of Directors.
_________________________
Notary Public
(12)
<PAGE>
STATE OF NEW YORK ss.:
COUNTY OF NEW YORK
On the 21st day of December, ___, 1993, before me personally
came Donald J. Trump, to me known, who, being by me duly sworn,
did depose and say that he resides at 721 Fifth Avenue, New York,
New York; that he is Managing General Partner and the Chairman of
the Board of Partner Representatives of Trump's Castle
Associates, the partnership Representatives of Trump's Castle
Associates, the partnership described in and which executed the
above instrument; and he acknowledged that he signed and
delivered the same on behalf of such partnership as his voluntary
act and deed and as the voluntary act and deed of such
partnership, pursuant to authority of the board of directors of
said partnership, and that he received a true copy of the within
instrument on behalf of said general partnership.
______________________________
Notary Public
(13)
<PAGE>
Exhibit D to
Senior Note Indenture
INDENTURE OF MORTGAGE AND SECURITY AGREEMENT
(Senior Guarantee Mortgage)
TRUMP'S CASTLE ASSOCIATES,
Mortgagor/Debtor
and
FIRST BANK NATIONAL ASSOCIATION,
as Trustee under the Senior Note Indenture, Mortgagee/Secured
Party
Dated as of December 28, 1993
Record and Return to:
Robert L. Nutt, Esq.
Ropes & Gray
One International Place
Boston, Massachusetts 02110-2624
<PAGE>
<PAGE>
TABLE OF CONTENTS
ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF
GENERAL APPLICATION. . . . . . . . . . . . . . . . . . . . . . 8
Section 1.1. Definitions. . . . . . . . . . . . . . . . 9
Section 1.2. Notices. . . . . . . . . . . . . . . . . . 18
Section 1.3. Form and Contents of
Documents Delivered to Mortgagee. . . . . . . . 19
Section 1.4. Compliance Certificates and Opinions.. . . 20
Section 1.5. Effect of Headings and Table of
Contents.. . . . . . . . . . . . . . . . . . . . . . 21
Section 1.6. Successors and Assigns; Amendments.. . . . 21
Section 1.7. Separability Clause. . . . . . . . . . . . 21
Section 1.8. Benefits of Mortgage.. . . . . . . . . . . 21
Section 1.9. Governing Law. . . . . . . . . . . . . . . 22
Section 1.10. Limitation on Liability. . . . . . . . . . 22
Section 1.11. Provisions Required by Senior Note
Indenture. . . . . . . . . . . . . . . . . . . . . . 22
Section 1.12. Rights of Trustee as Mortgagee.. . . . . . 23
Section 1.13. Mortgage Subject to Casino Control Act.. . 24
Section 1.14. Discharge of Lien. . . . . . . . . . . . . 24
Section 1.15. General Application. . . . . . . . . . . . 25
Section 1.16. Senior Guarantee Mortgage Deemed to be
Security Agreement.. . . . . . . . . . . . . . . . . 25
Section 1.17. No Duplication of Notices or Payments. . . 25
ARTICLE TWO RELEASE; SUBORDINATION . . . . . . . . . . . . . . 26
Section 2.1. Possession by Mortgagor. . . . . . . . . . 26
Section 2.2. Obsolete Property. . . . . . . . . . . . . 26
Section 2.3. F,F&E Financing Agreements.. . . . . . . . 27
ARTICLE THREE REMEDIES . . . . . . . . . . . . . . . . . . . . 28
Section 3.1. Events of Default. . . . . . . . . . . . . 28
Section 3.2. [Intentionally Omitted] . . . . . . . . . 30
Section 3.3. Application of Moneys Received by
Mortgagee. . . . . . . . . . . . . . . . . . . . . . 30
Section 3.4. Restoration of Rights and Remedies.. . . . 30
Section 3.5. Rights and Remedies Cumulative.. . . . . . 30
Section 3.6. Delay or Omission Not Waiver.. . . . . . . 30
Section 3.7. Undertaking for Costs. . . . . . . . . . . 30
Section 3.8. Waiver of Appraisement and Other Laws. . . 31
Section 3.9. Entry. . . . . . . . . . . . . . . . . . . 31
Section 3.10. Power of Sale; Suits for Enforcement.. . . 32
Section 3.11. Incidents of Sale. . . . . . . . . . . . . 32
Section 3.12. Receiver.. . . . . . . . . . . . . . . . . 33
Section 3.13. Suits to Protect the Trust Estate. . . . . 34
Section 3.14. Management of the Premises.. . . . . . . . 34
(i)
<PAGE>
ARTICLE FOUR CONSOLIDATION, MERGER, CONVEYANCE,
TRANSFER OR LEASE. . . . . . . . . . . . . . . . . . . . . . . 35
Section 4.1. Consolidation, Merger, Conveyance
or Transfer only on Certain Terms.. . . . . . . 35
Section 4.2. Successor Entity Substituted.. . . . . . . 35
ARTICLE FIVE COVENANTS AND REPRESENTATIONS OF MORTGAGOR. . . . 35
Section 5.1. Performance of Senior Note Guarantee
Obligations. . . . . . . . . . . . . . . . . . . . . 35
Section 5.2. F,F&E Financing Agreements.. . . . . . . . 35
Section 5.3. Limitations on Liens and Transfers.. . . . 35
Section 5.4. Environmental. . . . . . . . . . . . . . . 37
Section 5.5. Warranty of Leasehold Estate and Title . . 40
Section 5.6. After-Acquired Property;
Further Assurances; Recording.. . . . . . . . . 42
Section 5.7. Payment of Taxes and Certain Claims;
Maintenance of Properties; Compliance with
Legal Requirements and Insurance Requirements.. 43
Section 5.8. Permitted Contests . . . . . . . . . . . . 45
Section 5.9. Mechanics' and Other Liens.. . . . . . . . 46
Section 5.10. To Insure. . . . . . . . . . . . . . . . . 46
Section 5.11. Limitations on Building Demolition,
Alterations, Improvements and New Construction. 54
Section 5.12. Leases.. . . . . . . . . . . . . . . . . . 56
Section 5.13. Compliance Certificates. . . . . . . . . . 58
Section 5.14. To Keep Books; Inspection by Mortgagee . . 58
Section 5.15. Advances by Mortgagee. . . . . . . . . . . 59
Section 5.16. Waiver of Stay, Extension or Usury
Laws.. . . . . . . . . . . . . . . . . . . . . . . . 59
Section 5.17. Eminent Domain.. . . . . . . . . . . . . . 59
Section 5.18. Facility Leases. . . . . . . . . . . . . . 61
Section 5.19. Superior Mortgage. . . . . . . . . . . . . 66
Section 5.20. Indemnification. . . . . . . . . . . . . . 68
SCHEDULE 1 OWNED LAND. . . . . . . . . . . . . . . . . . . . 1-1
SCHEDULE 2 LEASED LAND . . . . . . . . . . . . . . . . . . . 2-1
SCHEDULE 3 EXISTING ENCUMBRANCES . . . . . . . . . . . . . . 3-1
SCHEDULE 4 FORM OF NON-DISTURBANCE AND ATTORNMENT AGREEMENT. 4-1
(ii)
<PAGE>
<PAGE>
INDENTURE OF MORTGAGE AND SECURITY AGREEMENT
INDENTURE OF MORTGAGE AND SECURITY AGREEMENT ("Mortgage" or
"Senior Guarantee Mortgage"), dated as of December 28 , 1993,
between TRUMP'S CASTLE ASSOCIATES, a New Jersey general
partnership having an office at Brigantine Boulevard and Huron
Avenue, Atlantic City, New Jersey 08401 ("Mortgagor"), and FIRST
BANK NATIONAL ASSOCIATION, a national banking association, not
individually but in its capacity as Trustee under the Trust
Indenture (as hereinafter defined), having an office at 180 East
Fifth Street, St. Paul, Minnesota 55101 ("Mortgagee").
Witnesseth:
In consideration of $10.00 in hand paid by Mortgagee to
Mortgagor and for other good and valuable consideration, the
receipt and sufficiency whereof is hereby acknowledged, and in
order to secure (i) the punctual payment and performance when due
of all of Mortgagor's obligations under the Senior Note
Guarantee; (ii) the punctual payment and performance when due of
all the Company's and Mortgagor's obligations under the Senior
Notes and the Senior Note Indenture; (iii) payment by Mortgagor
to Mortgagee of all sums expended or advanced by Mortgagee
pursuant to any term or provision of this Senior Guarantee
Mortgage; (iv) performance of each covenant, term, condition and
agreement of Mortgagor herein contained; (v) all costs and
expenses, including, without limitation, reasonable counsel fees
and expenses as provided in Section 3.7 of this Senior Guarantee
Mortgage, which may arise in respect of this Senior Guarantee
Mortgage or of the obligations secured hereby; and (vi)
performance and observance of all of the provisions herein
contained, Mortgagor has executed and delivered this Senior
Guarantee Mortgage and has bargained, sold, aliened, mortgaged,
pledged, released, conveyed and confirmed unto Mortgagee and its
successors hereunder and assigns forever, and does hereby grant
to Mortgagee and its successors a security interest in and to,
all of Mortgagor's right, title and interest in, to and under all
of the following described property and the proceeds thereof:
GRANTING CLAUSES
Granting Clause First
All of the property, rights, title, interest, privileges and
franchises particularly described in annexed Schedule 1 (the
"Owned Land"), which Schedule is hereby made a part of, and
deemed to be described in, this Granting Clause as fully as if
set forth in this Granting Clause at length.
(1)
<PAGE>
Granting Clause Second
[Intentionally omitted]
Granting Clause Third
All of the property, rights, title, interest, privileges and
franchises of Mortgagor as lessee under all Facility Leases
(including, to the extent permissible to the Landlord under the
Marina Lease, the Marina Lease), together with (i) all credits,
deposits, privileges and rights of Mortgagor as lessee under the
Facility Leases, now or at any time existing, (ii) the leaseholds
and the leasehold estates created by the Facility Leases and
(iii) all of the estates, rights, titles, claims or demands
whatsoever of Mortgagor, either in law or in equity, in
possession or in expectancy, of, in and to the Facility Leases
and the Leased Facilities (including, but not limited to, the
Leased Land particularly described in annexed Schedule 2),
together with (x) any and all other, further or additional title,
estates, interests or rights which may at any time be acquired by
Mortgagor in or to the Leased Facilities or any part thereof, and
Mortgagor expressly agrees that if Mortgagor shall, at any time
prior to payment in full of all indebtedness secured hereby,
acquire fee simple title or any other greater estate to the
Leased Facilities, the lien of this Senior Guarantee Mortgage
shall attach, extend to, cover and be a lien upon such fee simple
title or other greater estate and thereupon the lien of this
Senior Guarantee Mortgage, subject to Permitted Encumbrances,
shall be prior to the lien of any mortgage or deed of trust
placed on such acquired title, estate, interest or right
subsequent to the date of this Senior Guarantee Mortgage and (y)
any right to possession or statutory term of years derived from,
or incident to, the Facility Leases pursuant to Section 365(h) of
the Code or any Comparable Provision.
Granting Clause Fourth
All of the rents, issues, profits, revenues, accounts,
accounts receivable and other income and proceeds (including,
without limitation, all rents, fees, charges, accounts, issues,
profits, revenues and payments for or from (a) the use or
occupancy of the rooms and other public facilities in the Hotel<PAGE>
(2)
<PAGE>
and (b) the operation of the Casino) of the property subjected or
required to be subjected to the lien of this Senior Guarantee
Mortgage, including, without limitation, the property described
in Granting Clauses First, Third and Seventh (said property
described in Granting Clauses First, Third and Seventh and
similar other property subjected or required to be subjected to
the lien of this Senior Guarantee Mortgage, together with all
such rents, issues, profits, revenues, accounts, accounts
receivable and other income and proceeds therefrom is hereinafter
collectively referred to as the "Premises") and all of the
estate, right, title and interest of every nature whatsoever of
Mortgagor in and to the same and every part thereof.
Granting Clause Fifth
All of the rights of Mortgagor as lessor under the Leases in
effect on the date of execution of this Senior Guarantee Mortgage
or hereafter entered into by Mortgagor, including modifications,
extensions and renewals of all of the same, and the immediate and
continuing right as security after the occurrence, and during the
continuance, of an Event of Default, to (a) make claim for,
collect, receive and receipt for (and to apply the same as
provided herein) any and all rents, fees, charges, income,
revenues, issues, profits, security and other sums of money
payable or receivable thereunder or pursuant thereto, and all
proceeds thereof, whether payable as rent, insurance proceeds,
condemnation awards, security or otherwise and whether payable
prior to or subsequent to the Stated Maturity of the Senior
Partnership Note, (b) receive and give notices and consents
thereunder, (c) bring actions and proceedings thereunder or for
the enforcement thereof, (d) make waivers and agreements
thereunder or with respect thereto, (e) take such action upon the
happening of a default under any Lease, including the
commencement, conduct and consummation of any proceedings at law
or in equity as shall be permitted by any provision of any Lease,
and (f) do any and all things which Mortgagor or any lessor is or
may become entitled to do under the Leases; provided that, except
as may be set forth to the contrary herein, the assignment made
by this Granting Clause Fourth shall not impair or diminish any
right, privilege or obligation of Mortgagor under the Leases nor
shall any such obligation be imposed upon Mortgagee.
Granting Clause Sixth
Without limiting the generality of the provisions of
Granting Clause Fourth, all of Mortgagor's rights, title,
interest, privileges and franchises in and to the following, now
owned or hereafter acquired by Mortgagor, to the extent of
Mortgagor's interest therein and thereto and to the extent
assignable (collectively, "Operating Assets"):
(3)
<PAGE>
(a) bookings for the use of guest rooms, banquet
facilities, meeting rooms at the Casino Hotel or at any other
improvements now or hereafter located on any of the Land;
(b) all contracts respecting utility services for, and the
maintenance, operations, or equipping of, the Premises, including
guaranties and warranties relating thereto;
(c) the Permits;
(d) all contract rights, leases (whether with respect to
real property, personal property or both real and personal
property), concessions, trademarks, trade names, service marks,
logos, copyrights, warranties and other items of intangible
personal property, and any and all good will associated with the
same, relating to the ownership or operation of the Casino Hotel
or of any other improvements now or hereafter located on any of
the Land, including, without limitation, (1) employment contracts
with officers and other employees of Mortgagee, (2) telephone and
other communication numbers, (3) all software licensing
agreements as are required to operate computer software systems
at the Casino Hotel or at any other improvements now or hereafter
located on any of the Land and books and records relating to the
software programs and (4) lessee's interest under leases of
Tangible Personal Property;
(e) all contracts, purchase orders, requisitions and
agreements entered into by or on behalf of Mortgagor or which
have been assigned to Mortgagor, for the design, construction,
and furnishing of the Casino Hotel or of any other improvements
now or hereafter located on any of the Land, including, without
limitation, architect's agreements, engineering agreements,
construction contracts, consulting agreements and agreements or
purchase orders for all items of Tangible Personal Property and
payment and performance bonds in favor of Mortgagor in connection
with the Trust Estate (and all warranties and guarantees
thereunder and warranties and guarantees of any subcontractor and
bond issued in connection with the work to be performed by any
subcontractor);
(f) the following personal property (the "Tangible Personal
Property") now or hereafter acquired by Mortgagor (directly or by
way of lease) which is located on, or to be located on, or which
are in use or held in reserve storage for future use in
connection with the gaming or other operations of, the Casino
Hotel or of any other improvements now or hereafter located on
any of the Land, which is on hand or on order whether stored
on-site or off-site:
(i) all furniture, furnishings, equipment, machinery,
lighting, apparatus (both interior and exterior),
(4)
<PAGE>
appliances, fixtures and fittings and other articles of tangible
personal property;
(ii) all slot machines, electronic gaming devices,
crap tables, blackjack tables, poker tables, roulette
tables, baccarat tables, big six wheels and other gaming
tables, and all furnishings and equipment to be used in
connection with the operation thereof;
(iii) all cards, dice, gaming chips and plaques,
tokens, chip racks, dealing shoes, dice cups, dice sticks,
layouts, paddles, roulette balls and other consumable
supplies and items;
(iv) all china, glassware, linens, kitchen utensils,
silverware and uniforms;
(v) all consumable and operating supplies of every
kind and nature, including, without limitation, accounting
supplies, guest supplies, forms, printing, stationery, food
and beverage stock, bar supplies, laundry supplies and
brochures to existing purchase orders;
(vi) all upholstery material, carpets and rugs, beds,
bureaus, chiffonniers, chairs, chests, desks, bookcases,
tables, curtains, hangings, pictures, divans, couches,
ornaments, bars, bar fixtures, safes, stoves, ranges,
refrigerators, radios, televisions, clocks; electrical
equipment, lamps, mirrors, heating and lighting fixtures and
equipment, ice machines, air conditioning machines, fire
prevention and extinguishing apparatus, laundry machines,
and all similar and related articles used in bedrooms,
sitting rooms, bathrooms, boudoirs, halls, closets,
kitchens, dining rooms, offices, lobbies, basements and
cellars in the Casino Hotel and in any other improvements
now or hereafter located on any of the Land;
(vii) all sets and scenery, costumes, props and other
items of tangible personal property on hand or on order for
use in the production of shows in any showroom, convention
space, exhibition hall, or sports and entertainment arena of
the Casino Hotel or in any other improvements now or
hereafter located on any of the Land; and
(viii) all cars, limousines, vans, buses, trucks and
other vehicles owned or leased by Mortgagor for use in
connection with the operation of the Premises, together with
all equipment, parts and supplies used to service, repair,
maintain and equip the foregoing;
(g) all drawings, designs, plans and specifications
prepared by architects, engineers, interior designers, landscape
(5)
<PAGE>
designers and any other professionals or consultants for the
design, development, construction and/or improvement of the
Casino Hotel, or for any other development of the Premises, as
amended from time to time;
(h) any administrative and judicial proceedings initiated
by Mortgagor, or in which Mortgagor has intervened, concerning
the Premises, and agreements, if any, which are the subject
matter of such proceedings;
(i) any customer lists utilized by Mortgagor including
lists of transient guests and restaurant and bar patrons and
"high roller" lists; and
(j) all of the good will in connection with the assets
listed in this Granting Clause Sixth and in connection with the
operation of the Premises.
Except as may be set forth to the contrary herein, the
assignment made by this Granting Clause Sixth shall not impair or
diminish any right, privilege or obligation of Mortgagor with
respect to the Operating Assets, nor shall any such obligation be
imposed on Mortgagee.
Granting Clause Seventh
(a) All of Mortgagor's rights, title, interest, privileges
and franchises, if any, in and to all buildings, structures
(surface and subsurface), and other improvements of every kind
and description, including, without limitation, all pedestrian
bridges, entrance-ways, parking lots, plazas, curb-cuts,
walkways, driveways and landscaping and such fixtures as
constitute real property, now or hereafter erected or placed on
the Land or on any other land or any interest therein hereafter
acquired by Mortgagor and all of Mortgagor's rights, title,
interest, privileges and franchises in and to all fixtures and
articles of personal property now or hereafter attached to or
contained in and used in connection with such buildings and
improvements, including, without limitation, all apparatus,
furniture, furnishings, lighting equipment, electronic
billboards, machinery, motors, elevators, fittings, radiators,
cooking ranges, ice boxes, ice machines, printing presses,
mirrors, bars, mechanical refrigerators, furnaces, coal and oil
burning apparatus, wall cabinets, machinery, generators,
partitions, steam and hot water boilers, lighting and power
plants, pipes, plumbing, radiators, sinks, bath tubs, water
closets, gas and electrical fixtures, awnings, shades, screens,
blinds, dishwashers, freezers, vacuum cleaning systems, office
equipment and other furnishings, and all plumbing, heating,
lighting, cooking, laundry, ventilating, incinerating,
air-conditioning and sprinkler equipment or other fire prevention
(6)
<PAGE>
or extinguishing apparatus and material, and fixtures and
appurtenances thereto; and all renewals or replacements thereof
or articles in substitution therefor, whether or not the same are
or shall be attached to the Land, any other land or any interest
therein hereafter acquired by Mortgagor or to any such buildings
and improvements thereon, in any manner.
(b) All of Mortgagor's rights, title, interest, privileges
and franchises in and to all other property, real, personal or
mixed (other than Excepted Property), of every kind and
description and wheresoever situate, now owned or which may be
hereafter acquired by Mortgagor, it being the intention hereof
that all property, interests, rights, privileges and franchises
now owned by Mortgagor or acquired by Mortgagor after the date
hereof (other than Excepted Property) shall be as fully embraced
within and subjected to the lien hereof as if such property were
specifically described herein.
* * *
TOGETHER with all of Mortgagor's right, title and interest
in and to any and all mineral and water rights and any title or
reversion, in and to the beds of the ways, streets, avenues and
alleys adjoining the Premises to the center line thereof and in
and to all strips, gaps and gores adjoining the Premises on all
sides thereof; and
TOGETHER with any and all of Mortgagor's right, title and
interest in and to the tenements, hereditaments, easements,
appurtenances, passages, waters, water courses, riparian rights,
other rights, liberties and privileges thereof or in any way now
or hereafter appertaining to the Premises, including, without
limitation, any other claim at law or in equity as well as any
after-acquired title, franchise or license and the reversion and
reversions and remainder and remainders thereof; and
TOGETHER with any and all awards and other compensation
heretofore or hereafter to be made to the present and all
subsequent owners of the Trust Estate for any taking by eminent
domain, either permanent or temporary, of all or any part of the
Trust Estate or any easement or appurtenances thereof, including
severance and consequential damage and change in grade of
streets, all in accordance with and subject to the provisions of
the Superior Instrument Requirements and Section 5.17; and
TOGETHER with any and all proceeds of any unearned premiums
on any insurance policies described in Sections 5.10, and the
right to receive and apply the proceeds of any insurance,
judgments, or settlements made in lieu thereof, for damage to the
Trust Estate or otherwise, all in accordance with and subject to
the provisions of Section 5.10 and the Superior Instrument
Requirements; and
(7)
<PAGE>
TOGETHER with all proceeds of every kind and nature, and all
products of every kind and nature, of any of the foregoing
property, rights, title, interests, privileges, franchises and
other assets described in Granting Clauses First through Seventh
or in any of the other clauses thereafter.
The foregoing shall include, whether or not specifically
identified in one or more instances, all such property, rights,
title, interests, privileges, franchises and other assets now
owned and/or hereafter existing.
EXCLUDING, with respect to all of the hereinabove granted
property, rights, title, interest, privileges and franchises
described in Granting Clauses First through Seventh or in the six
immediately preceding paragraphs, all Excepted Property now or
hereafter existing.
TO HAVE AND TO HOLD all of said Premises, Leases, Facility
Leases, Operating Assets, properties, options, credits, deposits,
rights, privileges and franchises of every kind and description,
real, personal or mixed, hereby and hereafter granted, bargained,
sold, aliened, assigned, transferred, hypothecated, pledged,
released, conveyed, mortgaged, or confirmed as aforesaid, or
intended, agreed or covenanted so to be, together with all the
appurtenances thereto appertaining (said Premises, Leases,
Facility Leases, Operating Assets, properties, options, credits,
deposits, rights, privileges and franchises, other than Excepted
Property now or hereafter existing, being herein collectively
called the "Trust Estate") unto Mortgagee and its successors and
assigns forever.
SUBJECT, HOWEVER, on the date hereof, to Existing
Encumbrances (including the Superior Mortgage) and, after the
date hereof, to Permitted Encumbrances (other than Restricted
Encumbrances).
PROVIDED, HOWEVER, that the lien of this Senior Guarantee
Mortgage upon the Trust Estate shall rank pari passu with the
lien of the Senior Note Mortgage.
BUT IN TRUST, NEVERTHELESS, for the ratable benefit and
security of the Holders.
UPON CONDITION that, until the happening of an Event of
Default, Mortgagor shall be permitted to possess and use the
Trust Estate, and to receive and use the rents, issues, profits,
revenues and other income of the Trust Estate.
AND IT IS HEREBY COVENANTED AND DECLARED that the Trust
Estate is to be held and applied by Mortgagee, subject to the
further covenants, conditions and trusts hereinafter set forth,
(8)
<PAGE>
and Mortgagor does hereby covenant and agree to and with
Mortgagee, for the ratable benefit of the Holders, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF
GENERAL APPLICATION
Section 1.1. Definitions.
For all purposes of this Senior Guarantee Mortgage, except
as otherwise expressly provided or unless the context otherwise
requires:
(a) the terms defined in this Article One have the meanings
assigned to them in this Article One and include the plural as
well as the singular;
(b) all accounting terms not otherwise defined herein have
the meanings assigned to them, and all computations herein
provided for shall be made, in accordance with generally accepted
accounting principles in effect on the date hereof consistently
applied; and
(c) the words "herein," "hereof" and "hereunder" and other
words of similar import refer to this Senior Guarantee Mortgage
as a whole and not to any particular Article, Section or other
subdivision.
"Affiliate" has the meaning set forth in Section 1.1 of the
Senior Note Indenture.
"Alterations" has the meaning set forth in Section 5.11.
"Appraised Value" means the fair market value of the Casino
Hotel, and of all other property now or hereafter owned or leased
by Mortgagor and subject to the lien of this Senior Guarantee
Mortgage, as determined by an Independent Appraiser on the basis
of an appraisal in conformity with the criteria set forth at 12
C.F.R. ss 564.4 or such similar published policy or regulation as
from time to time governs real estate related transactions by
institutions regulated by the Office of Thrift Supervision;
provided, that the value of the Casino Hotel and such other
property shall not include the value of (i) any furniture,
fixtures and equipment therein to the extent of the Outstanding
Amount of any Indebtedness secured by any F,F&E Financing
Agreements with respect thereto and (ii) any Excepted Property.
"Appraiser" means a "state certified appraiser" as defined
in 12 C.F.R. ss 564.2(i) who is (i) of recognized standing among
appraisers of properties similar to the Casino Hotel and (ii)
(9)
<PAGE>
experienced in the appraisals of properties of a similar size and
scope to that of the Casino Hotel, selected by Mortgagor.
"Architect" means an Independent Person selected by
Mortgagor and licensed as an architect in the State of New
Jersey.
"Casino" means that portion of the Casino Hotel used for
gaming and related activities.
"Casino Hotel" means the casino and hotel complex currently
known as the "Trump's Casino Castle Resort" in Atlantic City, New
Jersey, and ancillary structures and facilities located on the
Premises (other than the property covered by the Marina Lease)
and all furniture, fixtures and equipment at any time contained
therein in each case owned by or leased to Mortgagor and covered
by the lien of the Senior Note Mortgage.
"Casualty" means any act or occurrence of any kind or nature
which results in damage, loss or destruction to any buildings or
improvements on the Premises and/or Tangible Personal Property.
"Certificate of Appraised Value" means the certificate of an
Independent Appraiser stating the Appraised Value.
"Code" means the Federal Bankruptcy Code, Title 11 of the
United States Code, as amended.
"Company" means Trump's Castle Funding, Inc., a corporation
incorporated under the laws of the State of New Jersey, or any
other obligor on the Senior Notes (other than Mortgagor).
"Comparable Provision" has the meaning set forth in
Section 5.18.
"Default" means any event which is, or after notice or lapse
of time or both would be, an Event of Default. Without limiting
the generality of the previous provisions of this definition, the
term "Default" shall include the occurrence of an event as to
which a notice of default has been given to Mortgagor under any
Facility Lease by a Lessor or under the Superior Mortgage by the
holder thereof, which has not yet been cured.
"Depositary" means an Independent entity to which insurance
proceeds or condemnation awards are paid to be held in trust for
Restoration pursuant to the provisions of a Superior Mortgage.
"Event of Default" has the meaning set forth in Section 3.1.
"Excepted Property" means:
(10)
<PAGE>
(1) the personal property owned by lessees under Leases and
the personal property of any Hotel guests;
(2) trade names, intellectual property rights and other
rights and interests in and to the use of the terms "Trump's
Castle," "Trump," "Trump's Castle Casino Resort", "Donald J.
Trump," "Donald Trump" or related variations thereof; and
(3) any property deemed to be Excepted Property pursuant to
the provisions of Section 2.3;
(4) counterchecks, cash and any other property to the
extent that the granting of a security interest therein is
prohibited by the New Jersey Casino Control Act and the
regulations promulgated thereunder; and
(5) any property acquired pursuant to secured purchase -
money indebtedness permitted under clause "i" of the definition
of "Permitted Indebtedness" in the Senior Note Indenture.
"Existing Encumbrances" means the matters set forth in
Schedule 3 hereto, including, but not limited to, the instruments
securing, evidencing or governing the Midlantic Term Loan.
"Facility Leases" means, collectively:
(1) the Marina Lease;
(2) Any leases other than Capital Lease Obligations and the
Marina Leqase where the Mortgagor is tenant or sub-tenant;
provided, however, that the aggregate fixed rental payments paid
or accrued for any period of four consecutive fiscal quarters
commencing after the date hereof under all such leases (including
payments required to be made by the lessee in respect of taxes
and insurance, whether or not denomianted as rent), shall not
exceed for such period (a) $2,000,000 or (b) $7,500,000 following
the time at which the Partnership shall have achieved EBITDA for
any period of four consecutive quarters in an amount not less
than $45.0 million; provided, further, that the Mortgagor may
designate certain such leases which are not material to the
operations of the Casino Hotel and which have aggregate fixed
rental payments (including payments required to be made by the
lessee in respect of taxes and insurance, whether or not
denominated as rent) not exceeding an aggregate of $300,000 per
year to be excluded from the leases covered by this clause (2);
and
(3) any and all modifications, extensions and renewals of
the leases described in clauses (1) and (2) above, to the extent
the same are permitted under Section 5.12.
(11)
<PAGE>
"F,F&E Financing Agreement" has the meaning set forth in
Section 1.1 of the Senior Note Indenture.
"Full Insurable Value" means the actual replacement cost
(excluding the costs of foundation, footing, excavation, paving,
landscaping and other similar, noninsurable improvements) of the
insurable properties in question.
"Holder" has the meaning set forth in Section 1.1 of the
Senior Note Indenture.
"Hotel" means that portion of the Casino Hotel not included
within the Casino.
"Impositions" has the meaning set forth in Section 5.7.
"Indebtedness" has the meaning set forth in Section 1.1 of
the Senior Note Indenture.
"Independent" when used with respect to any specified Person
means such a Person who (i) is in fact independent, (ii) does not
have any direct financial interest or any material indirect
financial interest in Mortgagor or in any other obligor upon the
Senior Partnership Note or in any Affiliate of Mortgagor or of
such other obligor and (iii) is not connected with Mortgagor or
such other obligor or any Affiliate of Mortgagor or such other
obligor as an officer, employee,, promoter, underwriter, trustee,
partner, director or person performing similar functions.
Whenever it is herein provided that any Independent Person's
opinion or certificate shall be furnished to Mortgagee, such
Person shall be appointed by a Mortgagor order and such opinion
or certificate shall state that the signer has read this
definition and that the signer is Independent within the meaning
thereof. A Person who is performing or who has performed
services as an independent contractor to any specified Person
shall not be considered not Independent merely by reason of the
fact that such Person is performing or has performed such
services.
"Insurance Amount" has the meaning set forth in Section
5.10(a)(i).
"Insurance Requirements" means all terms of any insurance
policy covering or applicable to the Trust Estate or any part
thereof, all requirements of the issuer of any such policy, and
all orders, rules, regulations and other requirements of the
National Board of Fire Underwriters (or any other body exercising
similar functions) applicable to or affecting the Trust Estate or
any part thereof or any use or condition of the Trust Estate or
any part thereof.
(12)
"Insurance Trustee" means the Trustee or, if the Trustee so
elects, any bank, trust company or insurance company with a net
worth in excess of $100,000,000, designated by the Trustee.
"Insurer" means (i) an insurance company or companies
selected by Mortgagor authorized to issue insurance in the State
of New Jersey with an A.M. Best rating level of A minus or better
and an A.M. Best financial size category of VIII or better or
(ii) Lloyds of London so long as its financial capacity is not
such that prudent owners of first-class casino and hotel
complexes in Atlantic City, New Jersey would be unwilling to
accept Lloyds of London; provided, that with respect to the
insurance required to be maintained pursuant to Section
5.10(a)(i), up to 1.0% of the total amount of such insurance in
excess of the first $10,000,000 thereof may be maintained with an
insurance company or companies not meeting the foregoing A.M.
Best rating level and/or A.M. Best financial size categories; and
provided, further, that Mortgagor shall in all events use
commercially reasonable efforts to obtain insurance issued by
insurance companies having an A.M. Best rating level of better
than A minus.
"Land" means, collectively, the Owned Land and the Leased
Land.
"Lease" means each lease or sublease (made by Mortgagor, as
lessor or sublessor, as the case may be) of any space in any
building or buildings, an interest in which building or buildings
constitutes a part of the Trust Estate, including every agreement
relating thereto or entered into in connection therewith and
every guarantee of the performance and observance of the
covenants, conditions and agreements to be performed by the
lessee or sublessee under any such lease or sublease. For
purposes hereof, the term "Lease" shall include any license
agreement, concession agreement or other occupancy agreement.
Notwithstanding the foregoing, the term "Lease" shall not include
any transient room rentals.
"Leased Facilities" means, collectively, the Leased Land and
any buildings and improvements now or hereafter located thereon.
"Leased Land" means, collectively, the Marina Lease and any
other land that is now or hereafter subject to a Facility Lease.
"Legal Requirements" means all laws, statutes, codes, acts,
ordinances, orders, judgments, decrees, injunctions, rules,
regulations, permits, licenses, authorizations, directions and
requirements (including, without limitation, the New Jersey
Casino Control Act, the New Jersey Environment Cleanup
Responsibility Act and the New Jersey Spill Compensation and
Control Act of 1976) of all governments, departments,
commissions, boards, courts, authorities, agencies, officials and
(13)
<PAGE>
officers, of governments, federal, state and municipal
(including, without limitation, the New Jersey Department of
Environmental Protection and Energy, the Atlantic City Bureau of
Investigations, the Division of Gaming Enforcement of the State
of New Jersey, and the Casino Control Commission of the State of
New Jersey), foreseen or unforeseen, ordinary or extraordinary,
which now are or at any time hereafter become applicable to the
Trust Estate or any part thereof, or any of the adjoining
sidewalks, or any use or condition of the Trust Estate or any
part thereof, including, without limitation, the use of the
Casino Hotel as a gaming or gambling facility.
"Lessors" means the lessors under the Facility Leases.
"Marina Lease" means the lease agreement made September 1,
1990 between the State of New Jersey, as Landlord, and Mortgagor,
as tenant, respecting property known as the Senator Frank S.
Farley State Marina, Atlantic City, New Jersey, being designated
as a portion of Block B-4, Lot 11 on the tax map of the City of
Atlantic City, Atlantic County, New Jersey, as more particularly
described on Schedule A appended hereto and made a part hereof,
together with all amendments, restatements, extensions and
renewals of said lease agreement.
"Maturity" when used with respect to any Indebtedness means
the date on which the principal (or any portion thereof) of such
Indebtedness becomes due and payable as therein or herein
provided, whether at the Stated Maturity, upon acceleration,
optional redemption, required repurchase, scheduled principal
payment or otherwise.
"Midlantic Mortgage" means the Amended and Restated
Indenture of Mortgage, dated as of May 29, 1992, from the
Mortgagor to Midlantic National Bank, the Amended and Restated
Assignment of Leases and Rents, dated as of May 29, 1992, between
the same parties, and the Amended and Restated Assignment of
Operating Assets, dated as of May 29, 1992, between the same
parties and all amendments, restatements, extensions and renewals
thereof, which comply with the provisions of Section 5.19 hereof
and with the Senior Note Indenture.
"Midlantic Term Loan" has the meaning set forth in
Section 1.1 of the Senior Note Indenture.
"Mortgage Debt" has the meaning set forth in Section 1.1 of
the Senior Note Indenture.
"Mortgage Documents" has the meaning set forth in
Section 1.1 of the Mortgage Note Indenture.
"Mortgage Note Indenture" means that certain indenture of
even date herewith among the Company, as issuer, the Mortgagor,
(14)
<PAGE>
as guarantor, and First Bank National Association, as trustee, as
it may be amended from time to time, relating to the Company's
Mortgage Notes.
"Mortgage Notes" means the 11-3/4% Mortgage Notes due 2003
issued by the Company pursuant to the Mortgage Note Indenture.
"Mortgagee" has the meaning set forth in the first paragraph
of this instrument and its successors.
"Mortgagor" means the Person named as "Mortgagor" in the
first paragraph of this instrument until a successor entity shall
have become such pursuant to the applicable provisions of this
Senior Guarantee Mortgage, and thereafter, except to the extent
otherwise contemplated by Section 4.2, "Mortgagor" shall mean
such successor entity exclusively.
"Mortgagor Order" and "Mortgagor Request" mean,
respectively, a written order or request signed with a Mortgagor
Signature and delivered to Mortgagee.
"Mortgagor Signature" means the signature of the President
or a Vice President of a corporate general partner of Mortgagor
or of a general partner of Mortgagor.
"Mortgagor's Certificate" means a certificate signed with a
Mortgagor Signature and delivered to Mortgagee.
"Notices" has the meaning set forth in Section 1.2.
"Operating Assets" has the meaning set forth in Granting
Clause Sixth.
"Opinion of Counsel" means a written opinion of counsel who
may (except as otherwise expressly provided in this Senior
Guarantee Mortgage) be an employee of Mortgagor or of an
Affiliate of Mortgagor.
"Original Policy" means the ALTA Loan Policies of
Title Insurance issued by First American Title Insurance Company,
Chicago Title Insurance Company and Commonwealth Land Title
Insurance Company, pursuant to Title Commitment No. F237584L,
dated the date hereof.
"Outstanding Amount" has the meaning set forth in
Section 1.1 of the Senior Note Indenture.
"Owned Land" has the meaning set forth in Granting Clause
First.
"Permits" means all licenses, franchises, authorizations,
statements of compliance, certificates of operation, certificates
(15)
<PAGE>
of occupancy and permits required for the lawful ownership,
occupancy, operation and use of all or a material portion of the
Premises whether held by Mortgagor or any other Person (which may
be temporary or permanent) (including, without limitation, those
required for the use of the Casino Hotel as a licensed casino
facility), in accordance with all applicable Legal Requirements.
"Permitted Encumbrances" means:
(1) liens for taxes, assessments, or governmental charges
not yet due and payable, or if due and payable not
delinquent, to the extent that any fine, penalty, interest or
cost may be added for nonpayment thereof;
(2) Existing Encumbrances (including the Superior
Mortgage);
(3) F,F&E Financing Agreements permitted by the Senior Note
Indenture;
(4) the liens of the Senior Note Mortgage Documents and the
Mortgage Documents and any rights granted as provided therein and
the Senior Guarantee Mortgage;
(5) the lien of the Trustee provided for in Section 6.6 of
the Senior Note Indenture and of the trustees under corresponding
sections of the Mortgage Note Indenture and the PIK Note
Indenture;
(6) any lien or encumbrance which, under the provisions of
Section 5.7, constitutes a Permitted Encumbrance;
(7) Restricted Encumbrances;
(8) Working Capital Facility Mortgage;
(9) any lien or encumbrance permitted under Section 5.3 of
this Mortgage;
(10) any lien or encumbrance securing purchase money
indebtedness permitted by the Senior Note Indenture;
(11) modifications, refinancings, extension, renewals or
replacements, in whole or in part, of the liens described in
clauses (2) through (10) of this definition to the extent
permitted by Section 5.19 hereof and the Senior Note Indenture;
and
(12) any Facility Lease now existing or hereafter entered
into.
(16)
<PAGE>
"Person" means any individual, corporation, limited or
general partnership, joint venture, association, joint stock
company, trust, unincorporated organization or any other entity
or government or any agency or political subdivision thereof.
"PIK Note Indenture" means that certain indenture of even
date herewith among the Company, as issuer, the Mortgagor, as
guarantor, and First Bank National Association, as trustee, as it
may be amended from time to time, relating to the Company's PIK
Notes.
"PIK Notes" means the Company's 13 7/8% Pay-in-Kind Notes
due 2005.
"Premises" has the meaning set forth in Granting Clause
Fourth.
"Restoration" has the meaning set forth in Section
5.10(e)(iii).
"Restricted Encumbrances" means any Leases permitted by and
made in accordance with Section 5.12 of this Senior Guarantee
Mortgage.
"Security Act" has the meaning set forth in Section 1.1 of
the Senior Note Indenture.
"Senior Assignment Agreement" means the Senior Assignment
Agreement of even date herewith made by the Company, as assignor,
to the Trustee, as assignee, providing for assignment of the
Senior Partnership Note and the Senior Note Mortgage.
"Senior Guarantee" means the Senior Note Guarantee by the
Partnership of the Company's Indenture obligations (as defined in
the Senior Note Indenture) pursuant to Article Fourteen of the
Senior Note Indenture.
"Senior Guarantee Mortgage" means this Indenture of Mortgage
and Security Agreement, which evidences a lien pari passu with
the Senior Note Mortgage.
"Senior Indebtedness" means the Indebtedness evidenced by
the Midlantic Term Loan, the Senior Partnership Note, the Senior
Guarantee and a Working Capital Facility and any amendments,
extensions, renewals, replacements or restatements of any of the
foregoing to the extent permitted by the Senior Note Indenture.
"Senior Note Indenture" means that certain indenture of even
date herewith among Mortgagor, as guarantor, the Company, as
issuer, and the Trustee, as trustee, relating to the Senior Notes
as it may from time to time be supplemented, modified or amended
by one or more trust indentures or other instruments supplemental
(17)
<PAGE>
thereto entered into pursuant to the applicable provisions
thereof.
"Senior Note Mortgage" means a certain Indenture of Mortgage
and Security Agreement, dated of even date herewith, between the
Mortgagor, as mortgagor/debtor, and the Company, as
mortgagee/secured party, securing the Senior Partnership Note and
which evidences a lien pari passu with this Senior Guarantee
Mortgage.
"Senior Notes" means the 11.5% Senior Secured Notes due 2000
issued by the Mortgagee under the Senior Note Indenture.
"Senior Partnership Note" means that certain Senior
Partnership Note of even date herewith in the original principal
amount of $27,000,000 made by Mortgagor in favor of the Company,
a true copy of which note is attached to the Senior Note
Indenture as Exhibit A, and any amendments, extensions, renewals,
replacements or restatements of the same to the extent permitted
under the Senior Note Indenture.
"Settlement Costs" has the meaning set forth in
Section 5.17.
"Stated Maturity" when used with respect to any
Indebtedness, means the date specified in such Indebtedness as
the fixed date on which the principal of such Indebtedness is due
and payable.
"Superior Instrument Requirements" means the applicable
terms, conditions and provisions of any documentation which
constitutes, evidences, secures or governs any Senior
Indebtedness, together with the terms and conditions of the
Marina Lease.
"Superior Mortgage" means, collectively, the Midlantic
Mortgage.
"Taking" means the acquisition or condemnation by eminent
domain of the whole or any part of the Premises, by a competent
authority, for any public or quasi-public use or purpose.
"Tangible Personal Property" has the meaning set forth
in subclause (f) of Granting Clause Sixth.
"Trust Estate" has the meaning stated in the habendum to the
Granting Clauses.
"Trust Indenture Act" has the meaning set forth in
Section 1.1 of the Senior Note Indenture.
(18)
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"Trustee" means the Person named as the "Trustee" in the
first paragraph of the Senior Note Indenture and any successor
thereto,
"Uniform Commercial Code" means the New Jersey Uniform
Commercial Code N.J.S.A. 12A:1-101, et seq.
"Working Capital Facility" has the meaning set forth in
Section 1.1 of the Senior Note Indenture.
"Working Capital Facility Mortgage" any mortgage or other
security interest or agreement which secures a Working Capital
Facility and which evidences a lien pari passu with the lien of
the Senior Note Mortgage.
Section 1.2. Notices.
(a) Any request, demand, authorization, direction, notice
(including, without limitation, a notice of default), consent,
waiver or other document provided or permitted by this Senior
Guarantee Mortgage to be made upon, given or furnished to, or
filed with, Mortgagor, Mortgagee or the Trustee (collectively,
"Notices") shall be in writing and shall be deemed given either
(i) when delivered by hand (including by overnight courier) or
(ii) two days after sending by registered or certified mail,
postage prepaid, addressed as follows:
To Mortgagor:
Trump's Castle Associates
Trump's Castle Casino Resort
Brigantine Boulevard and Huron Avenue
Atlantic City, New Jersey 08401
Attn: Chief Financial Officer
and
Willkie Farr & Gallagher
One Citicorp Center
153 East 53rd Street
New York, New York 10022
Attn: Thomas M. Cerabino, Esq.
To Mortgagee:
First Bank National Association
c/o First Trust National Association
180 East Fifth Street
St. Paul, Minnesota 55101
Attn: Corporate Trust Department
(19)
<PAGE>
(b) By Notice to Mortgagor or Mortgagee either party may
designate additional or substitute addresses for Notices which,
notwithstanding Subsection (a) above, shall be deemed given when
received.
Section 1.3. Form and Contents of
Documents Delivered to Mortgagee.
Whenever several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not
necessary that all such matters be certified by, or covered by
the opinion of, only one such Person, or that they be so
certified or covered by only one document, but one such Person
may certify or give an opinion with respect to some matters and
one or more other such Persons as to other such matters in one or
several documents.
Any certificate or opinion of a general partner of Mortgagor
may be based, insofar as it relates to legal matters, upon a
certificate or opinion of, or representations by, counsel, unless
such general partner knows that the certificate or opinion or
representations with respect to the matters upon which his
certificate or opinion is based are erroneous. Any Opinion of
Counsel may be based, insofar as it relates to factual matters,
upon a certificate or opinion of, or representations by, a
general partner of Mortgagor stating that the information with
respect to such factual matters is in the possession of
Mortgagor, unless such counsel knows that the certificate or
opinion or representations with respect to such matters are
erroneous. If appropriate to the matter being opined upon and to
the extent not prohibited by the Senior Note Indenture Act,
conclusions stated in any Opinion of Counsel may be subject to
rights of creditors and the availability of equitable remedies.
Whenever any Person is required to make, give or execute two
or more applications, requests, consents, certificates,
statements, opinions or other instruments under this Senior
Guarantee Mortgage, they may, but need not, be consolidated to
form one instrument.
Whenever in this Senior Guarantee Mortgage, in connection
with any application or certificate or report to Mortgagee, it is
provided that Mortgagor shall deliver any document as a condition
of the granting of such application, or as evidence of
Mortgagor's compliance with any term hereof, it is intended that
the truth and accuracy, at the time of the granting of such
application or at the effective date of such certificate or
report (as the case may be), of the facts and opinions stated in
such document shall in such case be conditions precedent to the
right of Mortgagor to have such application granted or to the
sufficiency of such certificate or report.
(20)
<PAGE>
Every application, certificate, report, affidavit, opinion,
consent, statement or other instrument required to be delivered
to Mortgagee under this Senior Guarantee Mortgage or under any
other Mortgage Document shall be in writing and shall be prepared
and delivered without cost or expense to Mortgagee.
Section 1.4. Compliance Certificates and Opinions.
Upon any application or request by Mortgagor to Mortgagee to
take any action under any provision of this Senior Guarantee
Mortgage, Mortgagor shall furnish to Mortgagee a Mortgagor's
Certificate stating that all conditions precedent, if any,
provided for in this Senior Guarantee Mortgage relating to the
proposed action have been complied with and an Opinion of Counsel
stating that in the opinion of such counsel all such conditions
precedent, if any, have been complied with, except that in the
case of any such application or request as to which the
furnishing of such documents is specifically required by any
provision of this Senior Guarantee Mortgage relating to such
particular application or request, no additional certificate or
opinion need be furnished. Every certificate or opinion with
respect to compliance with a condition or covenant provided for
in this Senior Guarantee Mortgage shall include:
(a) a statement that each individual signing such
certificate or opinion has read such condition or covenant and
the definitions herein relating thereto;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or
opinions contained in such certificate or opinion are based;
(c) a statement that, in the opinion of each such
individual, he has made such examination or investigation as is
necessary to enable him to express an informed opinion as to
whether or not such condition or covenant has been complied with;
and
(d) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 1.5. Effect of Headings and Table of Contents.
The Article and Section headings herein and in the Table of
Contents are for convenience only and shall not affect the
construction hereof.
Section 1.6. Successors and Assigns; Amendments.
(a) Subject to the provisions of Sections 1.10 and 4.2
hereof and Sections 3.11 and 8.2 of the Senior Note Indenture,
this Senior Guarantee Mortgage shall be binding upon and inure to
(21)
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the benefit of the parties hereto and of the respective
successors and assigns of the parties hereto to the same effect
as if each such successor or assign were in each case named as a
party to this Senior Guarantee Mortgage.
(b) This Senior Guarantee Mortgage may not be modified,
amended, discharged, released nor any of its provisions waived
except by agreement in writing executed by Mortgagor and
Mortgagee and in accordance with the provisions of this Senior
Guarantee Mortgage and the Senior Note Indenture.
Section 1.7. Separability Clause.
In case any provision in this Senior Guarantee Mortgage
shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not
in any way be affected or impaired thereby.
Section 1.8. Benefits of Mortgage.
Nothing in this Senior Guarantee Mortgage or in the Senior
Partnership Note, express or implied, shall give to any Person,
other than the parties hereto and their successors and assigns,
any benefit or any legal or equitable right, remedy or claim
under this Senior Guarantee Mortgage.
Section 1.9. Governing Law.
This Senior Guarantee Mortgage shall be deemed to be a
contract under the laws of the State of New Jersey and shall be
construed in accordance with and governed by the laws of the
State of New Jersey.
Section 1.10. Limitation on Liability.
Notwithstanding anything herein or in any other agreement,
document, certificate, instrument, statement or omission referred
to below to the contrary, Mortgagor is liable hereunder only to
the extent of the assets of Mortgagor and no other person or
entity, including, without limitation, any partner, officer,
committee or committee member of Mortgagor or any partner therein
or in any partnership Affiliate of Mortgagor, or any
incorporator, officer, director or shareholder of any corporate
partner of Mortgagor or of any corporate Affiliate of Mortgagor,
or any Affiliate or controlling person or entity of any of the
foregoing, or any agent, employee, or lender of any of the
foregoing, or any successor, personal representative, heir or
assign of any of the foregoing, in each case past, present or as
they may exist in the future, shall be liable in any respect
(including, without limitation, the breach of any representation,
warranty, covenant, agreement, condition or indemnification or
contribution undertaking contained herein or therein) under, in
(22)
<PAGE>
connection with, arising out of or relating to this Senior
Guarantee Mortgage, or any other agreement, document,
certificate, instrument or statement (oral or written) related
to, executed or to be executed, delivered or to be delivered, or
made or to be made, or any omission made or to be made, in
connection with any of the foregoing or any of the transactions
contemplated in any such agreement, document, certificate,
instrument, or statement. Any agreement, document, certificate,
statement or other instrument to be executed simultaneously with,
in connection with, arising out of or relating to this Senior
Guarantee Mortgage or any other agreement, document, certificate,
statement or instrument referred to above, or any agreement,
document, certificate, statement or instrument contemplated
hereby shall contain language mutatis mutandis to this Section
1.10 and, if such language is omitted, shall be deemed to contain
such language.
Section 1.11. Provisions Required by Senior Note Indenture.
Whenever the provisions of this Senior Guarantee Mortgage
and the provisions of the Senior Note Indenture shall be
inconsistent, the provisions of the Senior Note Indenture shall
govern.
Section 1.12. Rights of Trustee as Mortgagee.
Except as otherwise provided in Section 6.2 of the Senior
Note Indenture:
(1) Mortgagee may rely, and shall be protected in
acting or refraining from acting, upon any resolution,
certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note,
other evidence of indebtedness or other paper or document
believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(2) any request or direction of Mortgagor mentioned
herein shall be sufficiently evidenced by a Mortgagor
Request or Mortgagor Order;
(3) whenever in the administration of this Senior
Guarantee Mortgage, Mortgagee shall deem it desirable that a
matter be proved or established prior to taking, suffering
or omitting any action hereunder, Mortgagee (unless other
evidence be herein specifically prescribed) may, in the
absence of bad faith on its part, rely upon a Mortgagor's
Certificate;
(4) Mortgagee may consult with counsel and any written
advice of such counsel or any Opinion of Counsel shall be
full and complete authorization and protection in respect of
(23)
<PAGE>
any action taken, suffered or omitted by Mortgagee hereunder in
good faith and in reliance thereon;
(5) Mortgagee shall be under no obligation to exercise
any of the rights or powers vested in it by this Senior
Guarantee Mortgage at the request or direction of any of the
Holders pursuant to the Senior Note Indenture, unless such
Holders shall have offered to Mortgagee reasonable security
or indemnity against the costs, expenses and liabilities
which might be incurred therein or thereby in compliance
with such request or direction;
(6) Mortgagee shall not be bound to make any
investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order,
approval, appraisal, bond, debenture, note, coupon, security
or other paper or document but Mortgagee, in its discretion,
may make such further inquiry or investigation into such
facts or matters as it may see fit, and, if Mortgagee shall
determine to make such further inquiry or investigation, it
shall be entitled (subject to the express limitations with
respect thereto contained in this Senior Guarantee Mortgage)
to examine the books, records and premises of Mortgagor,
personally or by agent or attorney;
(7) Mortgagee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or
by or through agents or attorneys, and Mortgagee shall not
be responsible for any misconduct or negligence on the part
of any agent or attorney appointed with due care by it
hereunder;
(8) Mortgagee shall not be personally liable, in case
of entry by it upon the Trust Estate, for debts contracted
or liabilities or damages incurred in the management or
operation of the Trust Estate;
(9) Mortgagor shall pay or cause to be paid to the
Trustee all compensation and other amounts provided in
Section 6.6 of the Senior Note Indenture; and
(10) no provision of this Senior Guarantee Mortgage
shall require Mortgagee to expend or risk its own funds or
otherwise incur any financial liability in the performance
of its obligations hereunder, or in the exercise of any of
its rights or powers.
Section 1.13. Mortgage Subject to Casino Control Act.
(24)
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Each provision of this Senior Guarantee Mortgage is subject
to and shall be enforced in compliance with the provisions of the
New Jersey Casino Control Act.
Section 1.14. Discharge of Lien.
If (a) Mortgagor shall pay or cause to be paid, or there
shall otherwise be paid, to Mortgagee all amounts required to be
paid by Mortgagor pursuant to this Senior Guarantee Mortgage, the
Senior Notes and the Senior Note Guarantee and the conditions
precedent for the Senior Note Indenture to cease, determine and
become null and void (except for any surviving rights of transfer
or exchange of the Senior Notes provided in Section 13.1 of the
Senior Note Indenture and for the obligation to pay the Trustee's
fees and expenses provided in Section 6.6 of the Senior Note
Indenture) in accordance with Section 13.1 of the Senior Note
Indenture shall have occurred, or (b) there shall have occurred a
"defeasance" (as defined in Section 4.2 of the Senior Note
Indenture) of the Senior Notes, or (c) there shall have occurred
a "covenant defeasance" (as defined in Section 4.3 of the Senior
Note Indenture), then in any such case Mortgagee shall promptly
cancel and discharge this Senior Guarantee Mortgage, and any
financing statements filed in connection herewith and execute and
deliver to Mortgagor all such instruments as may be necessary,
required or appropriate to evidence such discharge and
satisfaction of said lien or liens.
Section 1.15. General Application.
(a) The remedies of Mortgagee upon any default by Mortgagor
in the fulfillment of any of its obligations hereunder shall be
limited in each instance by the provisions of Section 1.10,
whether or not the provisions providing for such remedies
explicitly refer to such Section.
(b) The assertion of any rights upon any Default shall be
subject in each instance to, if required, the giving of any
notice and the expiration of any grace period provided for in
Section 3.1 as a condition to such Default becoming an Event of
Default, unless the Senior Note Indenture Act requires otherwise,
in which case the Senior Note Indenture Act shall control.
(c) For the purposes of this Senior Guarantee Mortgage, it
is understood that an event which does not materially diminish
the value of Mortgagee's interest in the Trust Estate shall not
be deemed an "impairment of security," as that phrase is used in
this Senior Guarantee Mortgage.
Section 1.16. Senior Guarantee Mortgage Deemed to be Security
Agreement.
(25)
<PAGE>
To the extent that the grant of a security interest in any
portion of the Trust Estate is governed by the Uniform Commercial
Code, this Senior Guarantee Mortgage is hereby deemed to be as
well a security agreement under the Uniform Commercial Code for
the purpose of creating hereby a security interest in all of
Mortgagor's right, title and interest in and to said property,
securing the obligations secured hereby, for the benefit of
Mortgagee.
Section 1.17. No Duplication of Notices or Payments.
Whenever it is provided in this Senior Guarantee Mortgage
and the Senior Note Mortgage that Mortgagor shall deliver any
notice or document, or is required to make any payment, the
delivery of such notice or document or the making of such payment
shall constitute the delivery of such notice or document or the
making of such payment in satisfaction of the terms, conditions
and provisions of both this Senior Guarantee Mortgage and the
Senior Note Mortgage, provided that such notice, document or
payment states, or is accompanied by a letter stating, that such
notice, document or payment is being delivered in satisfaction of
the terms, conditions and provisions of this Senior Guarantee
Mortgage and the Senior Note Mortgage.
ARTICLE TWO
RELEASE; SUBORDINATION
Section 2.1. Possession by Mortgagor.
So long as there shall have been no acceleration of maturity
of the Senior Notes, Mortgagor shall be suffered and permitted,
with power freely and without let or hindrance on the part of
Mortgagee, subject to the provisions of this Senior Guarantee
Mortgage and the Senior Note Indenture, to possess, use, manage,
operate and enjoy the Trust Estate and every part thereof and to
collect, receive, use, invest and dispose of the rents, issues,
tolls, profits, revenues and other income from the Trust Estate
or any part thereof, to use, consume and dispose of any
consumable, goods, wares and merchandise in the ordinary course
of business of operating the Casino Hotel and to adjust and
settle all matters relating to choses in action, leases and
contracts.
Section 2.2. Obsolete Property.
Mortgagor shall have the right, at any time and from time to
time, unless an Event of Default shall have occurred and be
continuing, without any release from or consent by Mortgagee:
(a) to sell or dispose of, free from the lien of this
Senior Guarantee Mortgage, any Tangible Personal Property which,
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in its reasonable opinion, may have become obsolete or unfit for
use or which is no longer necessary in the conduct of its
businesses or the operation of the Trust Estate, and no purchaser
of any such property shall be bound to inquire into any question
affecting Mortgagor's right to sell or otherwise dispose of the
same free from the lien of this Senior Guarantee Mortgage;
(b) to alter, repair, replace, change the location or
position of and add to any Tangible Personal Property; provided,
however, that no change shall be made in the location of any such
property subject to the lien of this Senior Guarantee Mortgage
which would in any respect impair the security of this Senior
Guarantee Mortgage upon such property; or
(c) to renew, extend, surrender, terminate, modify or amend
any leases of Tangible Personal Property, when, in Mortgagor's
reasonable opinion, it is prudent to do so.
Mortgagor shall retain any net cash proceeds received from
the sale or disposition of any Tangible Personal Property under
Subsection (a) of this Section 2.2, in the business of operating
the Casino Hotel.
Mortgagee shall be under no responsibility or duty with
respect to the exercise of the rights of Mortgagor under this
Section 2.2 or the application of the proceeds of any sale or
disposition of any Tangible Personal Property.
Mortgagee shall, from time to time, promptly execute any
written instrument in form satisfactory to Mortgagee to confirm
the propriety of any action taken by Mortgagor under this Section
2.2, upon receipt by Mortgagee of a Mortgagor Request requesting
the same, together with a Mortgagor's Certificate stating that
the action so to be confirmed was duly taken in conformity with
this Section 2.2, and that the execution of such written
instrument is appropriate to confirm the propriety of such action
under this Section 2.2; provided, that Mortgagee shall have no
liability thereunder and all costs and expenses (including,
without limitation, reasonable attorneys' fees and disbursements)
shall be paid by Mortgagor.
Section 2.3. F,F&E Financing Agreements.
Notwithstanding any provision contained in this Senior
Guarantee Mortgage or the Senior Note Indenture to the contrary,
if Mortgagor acquires Tangible Personal Property and/or other
items constituting operating assets subject to any F,F&E
Financing Agreement, or becomes the lessee under a lease for any
of the same and if the document evidencing such F,F&E Financing
Agreement prohibits subordinate liens or the provisions of any
such lease prohibits any assignment thereof by the lessee, and if
any such prohibition is customary with respect to similar
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transactions of the lender or lessor (as evidenced by a
Mortgagor's Certificate delivered to Mortgagee, together with
such other evidence as Mortgagee may reasonably request), as the
case may be, then the property so purchased or the lessee's
interest in the lease, as the case may be, shall be deemed to be
Excepted Property. If any such F,F&E Financing Agreement permits
subordinate liens, then Mortgagee shall execute and deliver to
Mortgagor, at Mortgagor's expense, such documents as the holder
of such F,F&E Financing Agreement may reasonably request to
evidence the subordination of the lien of this Senior Guarantee
Mortgage and the Mortgage Documents to the lien of such F,F&E
Financing Agreement; provided, however, that Mortgagee shall have
no obligation to execute and deliver such documents, and the lien
of this Senior Guarantee Mortgage shall not be subordinate to any
such F,F&E Financing Agreement, unless (a) such F,F&E Financing
Agreement shall contain a provision binding upon the holder of
such F,F&E Financing Agreement that (i) if the holder of such
F,F&E Financing Agreement shall give to Mortgagor any notice of
default thereunder, such holder shall at the same time and in the
same manner serve a copy of such notice on Mortgagee at the
address designated herein (or such other address as Mortgagee may
designate by notice given to the holder of such F,F&E Financing
Agreement in the manner provided for notices hereunder), and that
no such notice to Mortgagor shall be deemed to have been duly
given unless and until a copy thereof has been so provided to
Mortgagee, and (ii) promptly following the last date upon which
Mortgagor may cure such default, if Mortgagor shall fail to cure
such default, the holder of such F,F&E Financing Agreement shall
give notice to Mortgagee stating the manner in which Mortgagor
shall have failed to cure its said default, in which event
Mortgagee shall be permitted to cure the default and, with
respect thereto, Mortgagee shall have the same amount of time,
after such notice, within which to cure the said default, as is
provided for under the provisions of such F,F&E Financing
Agreement to be given to Mortgagor therefor after notice or (b)
Mortgagor delivers to Mortgagee a Mortgagor's Certificate
certifying that (i) the provision described in clause (a) is not
customarily included by the lender or lessor in its F,F&E
Financing Agreements in similar transactions and (ii) although
Mortgagor has used reasonable efforts to have included in such
F,F&E Financing Agreement such a provision, Mortgagor has been
unsuccessful in obtaining such a provision.
ARTICLE THREE
REMEDIES
Section 3.1. Events of Default.
"Event of Default," whenever used herein, means any one of
the following events (including any applicable notice requirement
and any period of grace, as specified in this Section 3.1)
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(whatever the reason for such event and whether it shall be
voluntary or involuntary or be effected by operation of law or
pursuant to any judgment, decree or order of any court or any
order, rule or regulation of any administrative or governmental
body):
(a) default in the payment of any interest on the Senior
Notes or the Senior Partnership Note when such interest becomes
due and payable and continuance of such default for a period of
30 days; or
(b) default in the payment of all or any portion of the
principal of (or premium, if any, on) the Senior Partnership Note
or the Senior Notes when the same becomes due and payable at its
Maturity; or
(c) default in the payment of any other sum due under the
Senior Partnership Note, the Senior Notes or this Senior
Guarantee Mortgage, and the continuance of such default for a
period of 30 days after there has been given to Mortgagor a
notice specifying such default and requiring it to be remedied
and stating that such notice is a "Notice of Default" hereunder;
or
(d) default in the payment or performance of any obligation
under the Senior Note Guarantee at the time such payment or
performance is required under Article Fourteen of the Senior Note
Indenture; or
(e) default in the performance, or breach, of any
covenant of Mortgagor in this Senior Guarantee Mortgage (other
than a covenant, a default in the performance or breach of which
is elsewhere in this Section 3.1 specifically dealt with), and
continuance of such default or breach for a period of 30 days
after there has been given to Mortgagor a notice specifying such
default or breach and requiring it to be remedied and stating
that such notice is a "Notice of Default" hereunder, unless (i)
the default or breach is of such a nature that is curable but not
susceptible of being cured with due diligence within such 30-day
period (for reasons other than the lack of funds), (ii) Mortgagor
delivers an Mortgagor's Certificate to Mortgagee within such
30-day period stating (A) the applicability of the provisions of
clause (i) to such default or breach, (B) Mortgagor's intention
to remedy such default or breach with reasonable diligence and
(C) the steps which Mortgagor has undertaken or intends to
undertake to remedy such default or breach and (iii) Mortgagor
delivers to Mortgagee additional Mortgagor's Certificates every
30 days thereafter updating the information contained in the
certificate described in clause (ii), in which case such 30-day
period shall be extended for such further period of time (but in
no event more than 60 days after the last day of such 30-day
period) as may reasonably be required to cure the same, provided
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that Mortgagor is then proceeding and thereafter continues to
proceed to cure the same with reasonable diligence; or
(f) an "Event of Default," as defined in Section 5.1 of the
Senior Note Indenture, shall occur and be continuing; or
(g) default by Mortgagor under any of the terms of any
Facility Lease which shall not be fully cured or waived prior to
the expiration of any grace period (as such grace period may be
extended) contained in such Facility Lease; or
(h) default in the performance, or breach, of any of the
provisions of Article Four hereof; or
(i) if any representation or warranty of Mortgagor set
forth in this Senior Guarantee Mortgage or in any notice,
certificate, demand or request delivered to Mortgagee pursuant to
this Senior Guarantee Mortgage shall prove to be incorrect in any
material respect as of the time when made; or
(j) an "Event of Default, as defined in Section 3.1 of the
Senior Partnership Note Mortgage, shall occur and be continuing.
An Event of Default shall not be deemed to exist by reason
of any event which Mortgagor is contesting in compliance with the
provisions of Section 5.8.
Section 3.2. [Intentionally Omitted]
Section 3.3. Application of Moneys Received by Mortgagee.
Any moneys received by Mortgagee pursuant to the provisions
of this Article Three (including moneys received by the Trustee
after any action or act by Mortgagee under Section 3.10) shall be
applied by Mortgagee in accordance with the provisions of
Section 5.6 of the Senior Note Indenture.
Section 3.4. Restoration of Rights and Remedies.
If Mortgagee has instituted any proceeding to enforce any
right or remedy under this Senior Guarantee Mortgage and such
proceeding has been discontinued or abandoned for any reason or
has been determined adversely to Mortgagee, then and in every
such case Mortgagor and Mortgagee shall, subject to any
determination in such proceeding, be restored to their respective
former positions hereunder, and thereafter all rights and
remedies of Mortgagee shall continue as though no such proceeding
had been instituted.
Section 3.5. Rights and Remedies Cumulative.
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No right or remedy herein conferred upon or reserved to
Mortgagee is intended to be exclusive of any other right or
remedy, and every right and remedy shall, to the extent permitted
by law, be cumulative and in addition to every other right and
remedy given hereunder or now or hereafter existing at law or in
equity or otherwise. The assertion or employment of any right or
remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
Section 3.6. Delay or Omission Not Waiver.
No delay or omission of Mortgagee to exercise any right or
remedy accruing upon an Event of Default shall impair any such
right or remedy or constitute a waiver of any such Event of
Default or an acquiescence therein. Every right and remedy given
by this Article Three or by applicable law to Mortgagee may be
exercised, from time to time, and as often as may be deemed
expedient, by Mortgagee.
Section 3.7. Undertaking for Costs.
If any action or proceeding shall be commenced (including,
without limitation, an action to foreclose this Senior Guarantee
Mortgage or to collect the indebtedness secured hereby) to which
action or proceeding Mortgagee is made or becomes a party, or in
which it becomes necessary in the opinion of Mortgagee to defend
or uphold the lien of this Senior Guarantee Mortgage, Mortgagor
shall pay to Mortgagee all expenses, including, without
limitation, reasonable attorneys' fees, disbursements and court
costs incurred by Mortgagee in connection therewith, together
with interest at the rate then payable on the Senior Partnership
Note, from the date of payment less the net amount received by
Mortgagee, as its interests may appear under any title insurance
policy, and, until paid, all such expenses, together with
interest as aforesaid, shall be secured by the lien of this
Senior Guarantee Mortgage.
Section 3.8. Waiver of Appraisement and Other Laws.
To the full extent that it may lawfully so agree, Mortgagor
will not at any time insist upon, plead, claim or take the
benefit or advantage of, any appraisement, valuation, stay,
extension or redemption law now or hereafter in force, in order
to prevent or hinder the enforcement of this Senior Guarantee
Mortgage or the absolute sale of the Trust Estate, or any part
thereof, or the possession thereof by any purchaser at any sale
under this Article Three; and Mortgagor, for itself and all who
may claim under Mortgagor, so far as Mortgagor or they now or
hereafter may lawfully do so, hereby waives the benefit of all
such laws. Mortgagor, for itself and all who may claim under
Mortgagor, waives, to the extent that Mortgagor may lawfully do
so, all right to have the property in the Trust Estate marshalled
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upon any foreclosure hereof, and agrees that any court having
jurisdiction to foreclose this Senior Guarantee Mortgage may
order the sale of the Trust Estate as an entirety.
If any law in this Section 3.8 referred to and now in force,
of which Mortgagor or its successor or successors might take
advantage despite this Section 3.8, shall hereafter be repealed
or cease to be in force, such law shall not thereafter be deemed
to constitute any part of the contract herein contained or to
preclude the application of this Section 3.8.
Section 3.9. Entry.
Mortgagor agrees that upon the occurrence, and during the
continuance, of an Event of Default, Mortgagor, upon demand of
Mortgagee, shall forthwith surrender to Mortgagee the actual
possession of, and it shall be lawful for Mortgagee by such
officers or agents as it may appoint to enter and take possession
of, the Trust Estate (and the books and papers of Mortgagor), and
to hold, operate and manage the Trust Estate (including the
making of all needful repairs, and such alterations, additions
and improvements as Mortgagee shall deem wise) and to receive the
rents, issues, tolls, profits, revenues and other income thereof,
and, after deducting the costs and expenses of entering, taking
possession, holding, operating and managing the Trust Estate, as
well as payments for taxes, insurance and other proper charges
upon the Trust Estate and reasonable compensation to itself, its
agents and counsel, to apply the same as provided in Section 3.3;
provided, however, that Mortgagee's rights under this Section 3.9
shall be subject to the provisions of the New Jersey Casino
Control Act and Section 3.14. Whenever all that is then due upon
the Senior Partnership Note and under any of the terms of the
Senior Note Guarantee or this Senior Guarantee Mortgage shall
have been paid and all defaults hereunder shall have been cured,
Mortgagee shall surrender possession to Mortgagor.
Section 3.10. Power of Sale; Suits for Enforcement.
If an Event of Default shall occur and be continuing,
Mortgagee, with or without entry, in its discretion, may:
(a) sell, subject to any mandatory requirements of
applicable law, the Trust Estate as an entirety, or in such
parcels, as Mortgagee may determine, to the highest bidder at
public auction at such place and at such time (which sale may be
adjourned by Mortgagee from time to time in its discretion by
announcement at the time and place fixed for such sale, without
further notice) and upon such terms as Mortgagee may fix and
briefly specify in a notice of sale to be published as required
by law; or
(32)
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(b) proceed to protect and enforce its rights under this
Senior Guarantee Mortgage by sale pursuant to judicial
proceedings or by a suit, action or proceeding in equity or at
law or otherwise, whether for the specific performance of any
covenant or agreement contained in this Senior Guarantee Mortgage
or in aid of the execution of any power granted in this Senior
Guarantee Mortgage or for the foreclosure of this Senior
Guarantee Mortgage or for the enforcement of any other legal,
equitable or other remedy, as Mortgagee shall deem most effectual
to protect and enforce any of the rights of Mortgagee; the
failure to join tenants shall not be asserted as a defense to any
foreclosure or proceeding to enforce the rights of Mortgagee.
Section 3.11. Incidents of Sale.
Upon any sale of any of the Trust Estate, whether made under
the power of sale hereby given or pursuant to judicial
proceedings, to the extent permitted by law:
(a) the principal of and accrued interest on the Senior
Partnership Note, if not previously due, shall at once become and
be immediately due and payable;
(b) subject to the provisions of Section 3.14 and the
receipt of any required prior approvals of the New Jersey Casino
Control Commission, Mortgagee may bid for and purchase the
property offered for sale, and upon compliance with the terms of
sale may hold, retain, possess and dispose of such property,
without further accountability, and may, in paying the purchase
money therefor, deliver the Senior Partnership Note or claims for
interest thereon in lieu of cash to the amount which shall, upon
distribution of the net proceeds of such sale, be payable
thereon, and the Senior Partnership Note, in case the amounts so
payable thereon shall be less than the amount due thereon, shall
be returned to Mortgagee after being appropriately stamped to
show the partial payment;
(c) Mortgagee may make and deliver to the purchaser or
purchasers a good and sufficient deed, bill of sale and
instrument of assignment and transfer of the property sold;
(d) Mortgagee is hereby irrevocably appointed the true and
lawful attorney of Mortgagor, in its name and stead, to make all
necessary deeds, bills of sale and instruments of assignment and
transfer of the property thus sold; and for that purpose it may
execute all necessary deeds, bills of sale and instruments of
assignment and transfer, and may substitute one or more persons,
firms or corporations with like power, Mortgagor hereby ratifying
and confirming all that its said attorney or such substitute or
substitutes shall lawfully do by virtue hereof; but if so
requested by Mortgagee or by any purchaser, Mortgagor shall
ratify and confirm any such sale or transfer by executing and
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delivering to Mortgagee or to such purchaser or purchasers all
proper deeds, bills of sale, instruments of assignment and
transfer and releases as may be designated in any such request;
(e) all right, title, interest, claim and demand
whatsoever, either at law or in equity or otherwise, of Mortgagor
of, in and to the property so sold shall be divested and such
sale shall be a perpetual bar both at law and in equity against
Mortgagor, its successors and assigns, and against any and all
persons claiming or who may claim the property sold or any part
thereof from, through or under Mortgagor, its successors and
assigns; and
(f) the receipt of Mortgagee or of the officer making such
sale shall be a sufficient discharge to the purchaser or
purchasers at such sale for his or their purchase money and such
purchaser or purchasers and his or their assigns or personal
representatives shall not, after paying such purchase money and
receiving such receipt, be obliged to see to the application of
such purchase money, or be in anywise answerable for any loss,
misapplication or non-application thereof.
Section 3.12. Receiver.
Upon the occurrence of an Event of Default and commencement
of judicial proceedings by Mortgagee to enforce any right under
this Senior Guarantee Mortgage, Mortgagee shall be entitled, as
against Mortgagor, without notice or demand and without regard to
the adequacy of the security for the Senior Partnership Note or
the Senior Note Guarantee or the solvency of Mortgagor, to the
appointment of a receiver of the Trust Estate, and of the rents,
issues, profits, revenues and other income thereof; provided,
however, that Mortgagee's rights under this Section 3.12 shall be
subject to the provisions of the New Jersey Casino Control Act
and Section 3.14 hereof.
Section 3.13. Suits to Protect the Trust Estate.
Mortgagor hereby acknowledges the right of Mortgagee, in the
name and on behalf of Mortgagor, (a) to appear in and defend any
action or proceeding brought with respect to the Trust Estate or
any part thereof and (b) upon 5 days' prior notice to Mortgagor
(or such shorter period or without notice if deemed necessary and
appropriate by Mortgagee), to institute and to maintain such
proceedings as Mortgagee may deem necessary and appropriate, but
in the case of (a) and (b) only to prevent any impairment of
security or any impairment of the Trust Estate by any acts which
may be unlawful or in violation of this Senior Guarantee Mortgage
and to protect Mortgagee's interests in the Trust Estate and in
the rents, issues, profits, revenues and other income arising
therefrom, including the right to institute and maintain
proceedings to restrain the enforcement of or compliance with any
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governmental enactment, rule or order that may be
unconstitutional or otherwise invalid, if the enforcement of or
compliance with such enactment, rule or order would impair the
security hereunder or be materially prejudicial to the interests
of Mortgagee.
Section 3.14. Management of the Premises.
Without limiting the generality of any other provision of
this Article Three, following an Event of Default and the taking
of possession of the Trust Estate or any part thereof by
Mortgagee and/or the appointment of a receiver of the Trust
Estate or any part thereof, Mortgagee or any such receiver shall
be authorized, in addition to the rights and powers of Mortgagee
and such receiver set forth elsewhere in this Senior Guarantee
Mortgage, to take any action permitted under Section 5.17 of the
Senior Note Indenture.
ARTICLE FOUR
CONSOLIDATION, MERGER, CONVEYANCE,
TRANSFER OR LEASE
Section 4.1. Consolidation, Merger, Conveyance
or Transfer only on Certain Terms.
Mortgagor shall comply with all provisions applicable to
Mortgagor in Article Eight of the Senior Note Indenture.
Section 4.2. Successor Entity Substituted.
Upon any consolidation or merger, or any sale, assignment,
conveyance, transfer or disposition of the Trust Estate or any
portion thereof in accordance with Section 8.1 of the Senior Note
Indenture (other than a lease), the successor Person formed by
such consolidation or into which Mortgagor is merged or the
successor Person to which such sale, assignment, conveyance,
transfer or disposition is made shall succeed to, and be
substituted for, and may exercise every right and power of,
Mortgagor under this Senior Guarantee Mortgage with the same
effect as if such successor had been named as Mortgagor herein;
and thereafter, except in the case of a lease, the Person named
as "Mortgagor" in the first paragraph of this instrument or any
successor Person which shall theretofore have become such in the
manner prescribed in this Article shall be discharged from all
obligations and covenants under this Senior Guarantee Mortgage.
ARTICLE FIVE
COVENANTS AND REPRESENTATIONS OF MORTGAGOR
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Section 5.1. Performance of Senior Note Guarantee Obligations.
Mortgagor shall duly and punctually pay and perform its
obligations under the Senior Note Guarantee in accordance with
the terms of the Senior Note Indenture (including, without
limitation, Article Fourteen thereof).
Section 5.2. F,F&E Financing Agreements.
Mortgagor shall comply with all of the terms and conditions
set forth in any F,F&E Financing Agreements before the expiration
of any applicable notice and cure periods contained in the F,F&E
Financing Agreements.
Section 5.3. Limitations on Liens and Transfers.
(a) Mortgagor shall not create, incur, suffer or permit to
be created or incurred or to exist any mortgage, lien, charge or
encumbrance on or pledge of any of the Trust Estate, other than
(i) Permitted Encumbrances, (ii) a notice of intention filed by a
mechanic, materialman or laborer under the New Jersey mechanic's
lien law, and (iii) a building contract filed by a contractor or
subcontractor under the New Jersey mechanic's lien law. Without
limiting the generality of the foregoing sentence but
notwithstanding the provisions of the foregoing sentence,
Mortgagor shall not be deemed to have breached the provisions of
the foregoing sentence by virtue of the existence of a lien for
Impositions or mechanics' liens so long as Mortgagor is in good
faith contesting the validity of the same in accordance with the
provisions of Section 5.8.
(b) The lien of this Senior Guarantee Mortgage on the date
hereof shall be subject and subordinate to the lien of any
Existing Encumbrances to the extent that each thereof encumbers
Mortgagor's interest in the Trust Estate or any part thereof.
The foregoing provisions of this Section 5.3(b) shall be
self-operative and no further instrument shall be required to
give effect to such subordination. Mortgagee shall, however,
from time to time, after receipt of a Mortgagor Request therefor
(accompanied by a Mortgagor's Certificate stating that said
conditions have been satisfied) execute instruments in form and
substance reasonably satisfactory to the holder of the Superior
Mortgage confirming such subordination.
(c) Except as otherwise expressly permitted under this
Senior Guarantee Mortgage and the Senior Note Indenture
(including, without limitation, Article Eight of the Senior Note
Indenture), Mortgagor shall not sell, assign, lease or otherwise
transfer all or any portion of the Trust Estate or any interest
therein. Notwithstanding the foregoing, Mortgagor shall have the
right, at any time and from time to time, unless an Event of
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Default shall have occurred and be continuing, without any
release from or consent by Mortgagee, to grant interests in the
Owned Land in the nature of rights-of-way or easements, or other
rights or privileges in the nature of easements; provided, (i)
that none of the same will reduce or impair, in any material
respect, (A) the value or usefulness of the Trust Estate or any
part thereof or (B) the normal operation of the Casino Hotel in
accordance with all Legal Requirements and all Permits, (ii)
Mortgagor has delivered to Mortgagee a Mortgagor's Certificate,
dated not earlier than 10 days prior to the date of each such
grant, certifying that (A) no Event of Default has occurred and
is continuing and (B) the conditions set forth in this Section
5.3(c) for such grant have been fulfilled and (iii) Mortgagor has
delivered to Mortgagee a duplicate original of the instrument, if
any, pursuant to which such grant is to be made, and such other
instruments, certificates and opinions as Mortgagee may
reasonably request. The foregoing provisions of this Section
5.3(c) shall be self-operative and no further instrument shall be
required to evidence the consent of Mortgagee to the grant or
other conveyance of such rights-of-way or easements. Mortgagee
shall, however, from time to time, after receipt of a Mortgagor
Request therefor (accompanied by a Mortgagor's Certificate
stating that said conditions have been satisfied) execute
instruments in form and substance reasonably satisfactory to
Mortgagee confirming the permissibility of such grant or other
conveyance.
Section 5.4. Environmental.
Without limiting the generality of any other provision of
this Senior Guarantee Mortgage, Mortgagor covenants, represents
and warrants to Mortgagee as follows:
(a) Mortgagor shall comply with any and all federal, state
and local environmental legislation, rules, and regulations in
effect as of the date of this Senior Guarantee Mortgage and
subsequent thereto, including, without limitation, the Spill
Compensation and Control Act (N.J.S.A. 58:10-23. 11 et seq.)
(the"Spill Act"); the Industrial Site Recovery Act (N.J.S.A.
13:1K-6 et seq.) ("ISRA"); the Solid Waste Management Act
(N.J.S.A. 13:E-1 et seq.); the Resource, Conservation and
Recovery Act (42 U.S.C. Section 6901 et seq.) ("RCRA"); the
Comprehensive Environmental Response, Compensation and Liability
Act (42 U.S.C. Section 9601 et seq.) ("CERCLA") and such other
environmental legislation, rules and regulations, as are in or
may come into effect and apply to (i) Mortgagor and/or Mortgagee
with respect to the Premises or (ii) the transactions
contemplated hereby, and as to any occupants or users of the
collateral, whether as lessees, tenants, licensees or otherwise,
Mortgagor shall use its best efforts to cause same to comply with
said legislation, rules and regulations. Mortgagor agrees to pay
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all costs required in connection with compliance with the
foregoing legislation, rules and regulations.
(b) Mortgagor has not used in the past, nor shall Mortgagor
use in the future, the Premises for the purpose of refining,
producing, storing, handling, transferring, processing or
transporting "Hazardous Substances", as such term is defined in
ISRA, the Spill Act, CERCLA or the regulations relating thereto,
except that Mortgagor and its subsidiaries have used, and
Mortgagor may continue in the future to use, substances in the
operation and maintenance of the Premises, including, without
limitation, heating oil, gasoline and cleaning chemicals which
could be considered as "Hazardous Substances" under the preceding
definition.
(c) To the best of Mortgagor's knowledge, after due inquiry
and investigation, none of the real property owned, leased and/or
occupied by Mortgagor and located in the State of New Jersey,
including, without limitation, the Premises, has been or is now
being used as a "Major Facility" as such term is defined in
N.J.S.A. 58:10-23.11b(1). Mortgagor will not use the Premises in
the future as a "Major Facility".
(d) To the best of Mortgagor's knowledge, after due inquiry
and investigation, no lien has been attached to any revenues or
any real or personal property owned by Mortgagor or the Premises,
as a result of the Chief Executive of the New Jersey Spill
Compensation Fund expending monies from said fund to pay for
"Cleanup Costs", as such term is defined in N.J.S.A.
58:10-23.11b(d), arising from an intentional or unintentional
action or omission of Mortgagor or any previous owner and/or
operator of such real property.
(e) There is no asbestos or asbestos containing material on
the Premises. To the best of Mortgagor's knowledge, there are no
underground storage tanks located at the Premises, other than
those tanks previously disclosed to Mortgagee and which are
maintained in accordance with all material Legal Requirements.
Mortgagor has not installed or placed, or permitted to be
installed or placed, any underground storage tanks at or on the
Premises, other than those tanks previously disclosed to
Mortgagee and which are maintained in accordance with all
material Legal Requirements. Underground storage tanks shall
have the definition as set forth in N.J.S.A. 58:10A-22(p).
(f) Mortgagor has not received a summons, citation,
directive, letter, other written communication, or, to the best
of its knowledge, any oral communication, from the New Jersey
Department of Environmental Protection and Energy or from any
other person, firm or corporation concerning any intentional or
unintentional action or omission on Mortgagor's part resulting in
the releasing, spilling, leaking, pumping, pouring, emitting,
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emptying or dumping of "Hazardous Substances", as such term is
defined in N.J.S.A. 58:10-23.11b(k), into the waters or onto the
lands of the State of New Jersey, or into the waters outside the
jurisdiction of the State of New Jersey, in either case resulting
in damage to the lands, waters, fish, shellfish, wildlife, biota,
air and other resources owned, managed, held in trust or
otherwise controlled by the State of New Jersey.
(g) In connection with any purchase of the Premises or any
business or assets located thereon or any "closing, terminating
or transferring operations" of any "industrial establishment", as
that term is defined in ISRA, occurring on or after December 31,
1983, Mortgagor required that the owner and or operator of the
industrial establishment comply with the provisions of ECRA and
the owner and or operator did comply therewith.
(h) Upon the occurrence of an Event (as hereinafter
defined), Mortgagee shall have the right to have its consultants
perform a comprehensive environmental audit of the Premises.
Such audit shall be conducted by an environmental consultant
chosen by Mortgagee and may include a visual survey, a record
review, an area reconnaissance assessing the presence of
hazardous or toxic waste or substances, PCBs or storage tanks at
the Premises, an asbestos survey of the Premises, which may
include random sampling of the improvements and air quality
testing, and such further site assessments as Mortgagee may
reasonably require due to the results obtained from the
foregoing. Mortgagor grants Mortgagee, its agents, consultants
and contractors the right to enter the Premises for the purposes
of performing such studies and the cost of such studies shall be
due and payable by Mortgagor to Mortgagee upon demand and shall
be secured by the lien of this Senior Guarantee Mortgage.
Mortgagee shall direct the environmental consultant to use its
best efforts not to hinder Mortgagor's or any tenant's operations
when conducting such audit, sampling or inspections. For
purposes of this paragraph, the term "Event" shall mean (i) the
occurrence of any Event of Default, (ii) the issuance of any
summons, citation, directive or similar written notice from the
New Jersey Department of Environmental Protection and Energy or
from any other local, state or federal entity or from any other
person, firm or corporation concerning any alleged material
violation of any and all federal, state and local environmental
legislation, rules and regulations in effect as of the date of
this Senior Guarantee Mortgage and subsequent thereto or (iii)
the initiation of any legal action, suits or other legal or
administrative proceedings relating to or in connection with any
alleged violation of any and all federal, state and local
environmental legislation, rules and regulations in effect as of
the date of this Senior Guarantee Mortgage and subsequent
thereto.
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(i) If a lien shall be filed against the Premises by the
New Jersey Department of Environmental Protection and Energy,
pursuant to and in accordance with the provisions of N.J.S.A.
58:10-23.11f(f), as a result of the Chief Executive of the New
Jersey Spill Compensation Fund having expended monies from said
fund to pay for "Damages", as such term is defined in N.J.S.A.
58:10-23.11g, and/or "Cleanup and Removal-Costs", as such term is
defined in N.J.S.A. 58:10-23(b), arising from an intentional or
unintentional action or omission of Mortgagor resulting in the
releasing, spilling, pumping, pouring, emitting, emptying or
dumping of "Hazardous Substances", as such term is defined in
N.J.S.A. 58:10-23.11(b)k into waters of the State of New Jersey
or onto lands from which it might flow or drain into said waters,
then, unless there is a good faith basis for contesting such lien
and Mortgagor is so contesting such lien in accordance with
Section 5.9, Mortgagor shall, within 30 days from the date that
Mortgagor is given notice that the lien has been placed against
the Premises or within such shorter period of time if the State
of New Jersey has commenced steps to cause the Premises to be
sold pursuant to the lien, either (i) pay the claim and remove
the lien from the Premises, or (ii) furnish (A) a bond
satisfactory to a title company selected by Mortgagee (the "Title
Insurer") in the amount of the claim out of which the lien
arises, (B) to the Trustee, a cash deposit (which may be
disbursed by the Trustee in its sole discretion) in the amount of
the claim out of which the lien arises, or (C) other security
reasonably satisfactory to Mortgagee in an amount sufficient to
discharge the claim out of which the lien arises.
(j) Mortgagor shall use its best efforts to cause
compliance by all lessees with all applicable Legal Requirements
relating to environmental protection.
(k) Mortgagor shall promptly provide Mortgagee with copies
of all notices received by or prepared by Mortgagor in connection
with ISRA, CERCLA, the Spill Act, RCRA or any other environmental
law, rule or regulation relating to the Premises. For purposes
of this paragraph, the term "notice" shall mean any summons,
citation, directive, order, claim, pleading, letter, application,
filing, report, findings, declarations or other materials
pertinent to compliance of the Trust Estate and Mortgagor with
such environmental laws, rules or regulations.
(l) If this Senior Guarantee Mortgage is foreclosed,
Mortgagor shall deliver the Premises in compliance with all
applicable federal, state and local environmental laws,
ordinances, rules and regulations, including, without limitation,
ISRA.
(m) Without limiting the generality of Section 5.20,
Mortgagor agrees to defend, indemnify and save Mortgagee harmless
from and against any loss or liability, cost or expense
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(including, without limitation, reasonable attorneys' fees,
consultants' fees, disbursements and court costs) arising out of,
or incurred in connection with, Mortgagor's misrepresentation, or
failure promptly (but in no event to exceed the time period
permitted by law) to comply with and perform its obligations,
under this Section 5.4. The provisions of this subsection (m)
shall survive any transfer of the Premises, including a transfer
after a foreclosure of this Senior Guarantee Mortgage.
Section 5.5. Warranty of Leasehold Estate and Title.
Mortgagor represents and warrants that as of the date
hereof:
(a) Mortgagor is duly authorized under the laws of the
State of New Jersey and all other applicable laws to execute and
deliver this Senior Guarantee Mortgage, and all partnership
action on Mortgagor's part necessary for the valid execution and
delivery of this Senior Guarantee Mortgage has been duly and
effectively taken;
(b) Mortgagor is the lawful owner and is lawfully seized
and possessed of the Owned Land and all buildings and
improvements thereon, free and clear of all liens, charges or
encumbrances, other than the Senior Note Mortgage and the
Existing Encumbrances;
(c) Mortgagor is the holder of and has good and marketable
title to the leasehold interests and leasehold estates under all
existing Facility Leases, subject to no lien, encumbrance or
charge other than Existing Encumbrances;
(d) (i) each existing Facility Lease is a valid and
subsisting demise of the respective Leased Land for the term
therein set forth, (ii) there are no defaults under any Facility
Lease by any lessor or the lessee as to which written notice has
been given to or by the lessee, (iii) Mortgagor has delivered to
Mortgagee and the Trustee a true and correct copy of each
existing Facility Lease, and all modifications, amendments and
supplements thereto, and (iv) each existing Facility Lease is in
full force and effect and has not been modified, amended or
supplemented, except as described on Schedule 3;
(e) Mortgagor has good title to the Operating Assets,
subject to no lien, encumbrance or charge, other than Existing
Encumbrances;
(f) Mortgagor has good and lawful right and authority to
execute this Senior Guarantee Mortgage and to grant, bargain,
sell, alien, convey, assign, transfer, hypothecate, pledge,
mortgage and confirm the Trust Estate as provided herein
(including, without limitation, with respect to the Operating
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Assets and Facility Leases), without the consent of any third
party, other than governmental authorities and other secured
Persons but any applicable or necessary consent or approval of
any such governmental authority and other such Persons has been
given or waived in accordance with applicable law at or prior to
the execution and delivery of this Senior Guarantee Mortgage, and
this Senior Guarantee Mortgage constitutes a valid first mortgage
lien and deed of trust and first priority security interest in
the Trust Estate, subject only to Existing Encumbrances
(including, without limitation, the Superior Mortgage) and the
Senior Note Mortgage; and
(g) (i) all amounts due under the Superior Mortgage and the
instruments secured thereby have been paid to the extent they
were due and payable to the date hereof, and (ii) there is no
existing default under said Superior Mortgage or instruments, or
in the performance of any of the terms, covenants, conditions or
warranties therein on the part of Mortgagor to be performed and
observed thereunder as to which written notice has been given to
Mortgagor.
Mortgagor hereby does and shall forever warrant and defend
(a) the title to the Trust Estate (including, without limitation,
Mortgagor's leasehold estate under, and the lessee's interests
in, each existing Facility Lease) (subject to Permitted
Encumbrances) and (b) the pari passu lien of the Senior Note
Mortgage thereon (subject to Permitted Encumbrances other than
Restricted Encumbrances), against the claims and demands of all
persons whomsoever, at Mortgagor's sole cost and expense.
Section 5.6. After-Acquired Property;
Further Assurances; Recording.
All property, real, personal or mixed or any interest
therein (other than Excepted Property), of every kind and
description and wheresoever situate, which may be hereafter
acquired by Mortgagor (including, without limitation, fee title
to any Leased Land) shall immediately upon the acquisition
thereof by Mortgagor, and without any further mortgage,
conveyance or assignment, become subject to the lien of this
Senior Guarantee Mortgage as fully as though now owned by
Mortgagor and covered by the Granting Clauses. Nevertheless,
Mortgagor shall do, execute, acknowledge and deliver all and
every such further acts, conveyances, mortgages, financing
statements and assurances as Mortgagee shall require for
accomplishing the express purposes of this Senior Guarantee
Mortgage.
Mortgagor shall, as provided in Section 5.12, from time to
time subject to the lien of this Senior Guarantee Mortgage its
right, title and interest under all Leases.
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Mortgagor shall use reasonable efforts to insure that all
Operating Assets (other than Excepted Property) or any interest
therein hereafter acquired by Mortgagor shall be assignable to
Mortgagee, and to the extent such assignment to Mortgagee
requires the consent of any governmental authority or any other
Person, Mortgagor shall use reasonable efforts to obtain such
consent or a waiver thereof.
Mortgagor shall cause this instrument and all other
instruments of further assurance, including all financing
statements and continuation statements covering security
interests in personal property, to be promptly recorded,
registered and filed, and at all times to be kept recorded,
registered and filed, and shall execute and file such financing
statements and cause to be issued and filed such continuation
statements, all in such manner and in such places as may be
required by law or as requested by Mortgagee to fully preserve
and protect the rights of Mortgagee as a secured party under the
Uniform Commercial Code to all property comprising the Trust
Estate (to the extent a grant of a security interest therein is
governed by the Uniform Commercial Code) and to perfect, preserve
and protect the lien of this Senior Guarantee Mortgage as a valid
direct first mortgage lien of record and a valid first priority
security interest on the Trust Estate, subject only to Permitted
Encumbrances (including, without limitation, the Superior
Mortgage).
Mortgagor shall pay all filing or recording fees, and all
expenses incident to the execution and delivery of this Senior
Guarantee Mortgage, any financing statement or continuation
statement with respect to the personal property constituting part
of the Trust Estate, and any instrument of further assurance, and
all federal, state, county and municipal stamp taxes and other
taxes, duties, imposts, assessments and charges arising out of or
in connection with the execution and delivery of the Senior
Partnership Note, this Senior Guarantee Mortgage, any financing
statement or continuation statement with respect to the personal
property constituting part of the Trust Estate or any instrument
of further assurance.
Mortgagor shall furnish to Mortgagee promptly after the
acquisition hereafter by Mortgagor of any fee interest or
leasehold interest in real property having a fair market value
exceeding $500,000 (other than Excepted Property), (a) a
mortgagee policy of title insurance on the most recent form of
American Land Title Association standard loan policy, extended
coverage, which policy shall (i) contain all such endorsements
and affirmative insurance, to the extent reasonably applicable,
as is contained in the Original Policy and (ii) evidence that
title to such real property is subject to no liens or
encumbrances (other than Permitted Encumbrances) which would (A)
render title unmarketable or (B) violate any other provision of
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this Senior Guarantee Mortgage or the Senior Note Indenture, (b)
an as-built survey meeting the "Minimum Standard Detail
Requirements for ALTA/ACSM Land Title Surveys", certified within
60 days prior to the acquisition date by a surveyor licensed in
the State of New Jersey using the same form of certification as
that contained in the surveys of the Premises delivered to the
Trustee on the date of this Senior Guarantee Mortgage and (c) a
Mortgagor's Certificate certifying that the mortgagee policy of
title insurance and survey delivered pursuant to clauses (a) and
(b) comply, respectively, with the provisions of such clauses (a)
and (b). Upon delivery of all of the items required under this
paragraph, any liens or encumbrances on such real property shall
constitute Permitted Encumbrances hereunder.
Section 5.7. Payment of Taxes and Certain Claims;
Maintenance of Properties; Compliance with
Legal Requirements and Insurance Requirements.
Mortgagor shall:
(a) subject to the provisions of Section 5.8, pay or cause
to be paid before the date on which any fine, penalty, interest
or cost may be added for nonpayment (but no later than when the
same are payable by Mortgagor pursuant to any Superior Instrument
Requirement), all taxes (including, without limitation, real
estate taxes, personal or other property taxes and all sales,
value added, use and similar taxes), assessments (including,
without limitation, all assessments for public improvements or
benefits, whether or not commenced or completed prior to the date
hereof and whether or not to be completed prior to the
satisfaction of this Senior Guarantee Mortgage), water, sewer or
other rents, rates and charges, excises, levies, license fees,
permit fees, inspection fees and other authorization fees and
other charges, in each case whether general or special, ordinary
or extraordinary, foreseen or unforeseen, of every character
(including, without limitation, all interest, additions to tax
and penalties thereon), that may be assessed, levied, confirmed
or imposed on or in respect of or be a lien upon (i) the Trust
Estate (including, without limitation, the Leased Land) or any
part thereof or any rent therefrom or any estate right or
interest therein, or (ii) any acquisition, occupancy, use,
leasing, or possession of or activity conducted on the real
property or any part thereof included in the Trust Estate or any
gross receipts thereof or of the rent therefrom (all of the
foregoing being referred to collectively as "Impositions").
Notwithstanding the foregoing or any other provision of this
Senior Guarantee Mortgage, Mortgagor shall not be required to pay
any income, profits or revenue tax upon the income of Mortgagee,
the Trustee or the Holders nor any franchise, excise, corporate,
estate, inheritance, succession, capital levy or transfer tax of
Mortgagee, the Trustee or the Holders nor any interest, additions
to tax or penalties in respect thereof, unless such tax is
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imposed, levied or assessed in substitution for any Imposition
that Mortgagor is required to pay pursuant to this Section 5.7.
Mortgagor shall deliver to Mortgagee, at Mortgagee's request,
official receipts or other proof evidencing payments of any
Impositions in accordance with the requirements of this Section
5.7. Mortgagor shall not be entitled to any credit for taxes or
assessments paid against the Senior Notes;
(b) except for such obsolete property as Mortgagor may
dispose of or replace pursuant to Section 2.2, maintain and keep
all of Mortgagor's properties used or useful in the conduct of
Mortgagor's business, including, without limitation, the Casino
Hotel and all Tangible Personal Property, in such good repair,
working order and condition, except for reasonable wear and use,
and make or cause to be made all such needful and proper repairs,
renewals and replacements thereto consistent with the standards
of first-class casino and hotel complexes in Atlantic City, New
Jersey;
(c) occupy and continuously operate the Casino Hotel and
keep the Casino Hotel supplied with Tangible Personal Property,
all in a manner consistent with the standards of first-class
casino and hotel complexes in Atlantic City, New Jersey;
(d) subject to the provisions of Section 5.8, (i) comply
with all Legal Requirements and Insurance Requirements, whether
or not compliance therewith shall require structural changes in
the buildings and improvements included in the Trust Estate or
interfere with the use and enjoyment of the Trust Estate or any
part thereof, (ii) procure, maintain and comply with all Permits
required for (1) the use of the Casino as a gaming and gambling
facility, (2) the on-premises consumption of alcoholic beverages
at the Casino Hotel and (3) any other use of the Trust Estate or
any part thereof then being made, and for the proper erection,
installation, operation and maintenance of the improvements or
any part thereof, (iii) comply with all obligations of Mortgagor
under, and keep in full force and effect, all easements which in
any respect inure to the benefit of, or otherwise affect, the
Trust Estate or any part thereof, if the failure to comply with
the same would impair Mortgagee's security hereunder, and (iv)
without limiting the generality of clause (iii), comply with any
instruments of record at the time in force affecting the Trust
Estate or any part thereof, if the failure to comply with the
same would impair Mortgagee's security hereunder. Without
limiting the generality of the foregoing, Mortgagor represents
and warrants that at the time of the execution of this Senior
Guarantee Mortgage, Mortgagor is in compliance with the
requirements of clauses (i), (ii), (iii) and (iv) above; and
(e) in the event of the passage after the date of this
Senior Guarantee Mortgage of any law of the State of New Jersey,
or any other governmental entity, changing in any way the laws
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now in force for the taxation of mortgages, or debts secured
thereby, for federal, state or local purposes, or the manner of
the operation of any such taxes, so as to affect the interest of
Mortgagee, pay the full amount of such new or additional taxes.
Section 5.8. Permitted Contests.
Notwithstanding anything in this Senior Guarantee Mortgage
to the contrary, Mortgagor, at Mortgagor's expense, may contest
(after prior notice to Mortgagee) by appropriate legal
proceedings conducted in good faith and with due diligence, the
amount or validity or application, in whole or in part, of any
Imposition or lien therefor or any Legal Requirement or Insurance
Requirement or the application of any instrument of record
(including, without limitation, any Superior Instrument
Requirement) affecting the Trust Estate or any part thereof or
any claims of holders of F,F&E Financing Agreements, mechanics,
materialmen, suppliers, or vendors or lien therefor, and may
withhold payment of the same pending such proceedings if
permitted by law, or make payment under protest, or defer
compliance with any such Legal Requirement, any such Insurance
Requirement or the terms of any such instrument, and the same
shall not be a Default hereunder; provided, that (a) in the case
of any Impositions or lien therefor or any claims of mechanics,
materialmen, suppliers or vendors or lien therefor, such
proceedings shall suspend the collection thereof from each of
Mortgagor, Mortgagee, the Trustee, the Holders and the Trust
Estate, (b) neither the Trust Estate nor any interest therein
would be in any significant danger of being sold, forfeited, or
lost, (c) such action will not result in (i) the termination of
any Facility Lease or (ii) the holder of any Superior Mortgage
having a right to exercise any rights or remedies thereunder, (d)
in the case of a Legal Requirement, neither the Holders nor
Mortgagee shall be in any significant danger of any civil
liability or any danger of any criminal liability, and the
failure of Mortgagor to comply with such Legal Requirement shall
not affect the continuance in good standing of any Permit or
result in the suspension, termination, non-renewal or material
adverse modification of any Permit, and (e) in the case of an
Insurance Requirement, the failure of Mortgagor to comply
therewith shall not affect the validity of any insurance required
to be maintained by Mortgagor hereunder.
Section 5.9. Mechanics' and Other Liens.
Mortgagor shall cause to be removed, either by payment, or
bonding or otherwise, all claims and demands of mechanics,
materialmen, laborers, and others which, if unpaid, might result
in, or permit the creation of, a lien on the Premises and/or
Trust Estate or any part thereof, or on the revenues, rents,
issues, income and profits arising therefrom and in general shall
do or cause to be done everything necessary so that the lien
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hereof shall be fully preserved, at the cost of Mortgagor,
without expense to Mortgagee.
Section 5.10. To Insure.
(a) Mortgagor, at Mortgagor's expense, shall maintain with
Insurers:
(i) insurance with respect to Mortgagor's insurable
properties constituting a part of the Trust Estate against
loss or damage by fire, lightning, and other risks from time
to time included under "all-risk" policies and against loss
or damage by sprinkler leakage, water damage, collapse,
malicious mischief and explosion in respect of any steam and
pressure boilers and similar apparatus located on such
insurable properties, in amounts at all times sufficient to
prevent Mortgagor from becoming a coinsurer within the terms
of the applicable policies, but in any event such insurance
shall be maintained in not less than the greatest of the
following (the "Insurance Amount"): (A) 100% of the then
Full Insurable Value of such insurable properties,
determined from time to time (but not less frequently than
once in any 36 calendar months), by an Appraiser or Insurer,
(B) the then Outstanding Amount of Mortgage Debt, including
the Senior Partnership Note, or (C) the amount required to
be maintained pursuant to the Superior Instrument
Requirements;
(ii) war risk insurance as and when such insurance is
obtainable from the United States of America or any agency
thereof as promptly as reasonably practicable after the same
becomes so obtainable, in an amount not less than the
Insurance Amount, or, if such insurance cannot be obtained
in an amount not less than the Insurance Amount, in such
lesser amount as may then be so obtainable;
(iii) comprehensive general liability insurance,
including, without limitation, blanket contractual liability
coverage, broad form property damage, independent
contractor's coverage and personal injury coverage against
any and all claims arising out of or connected with the
possession, use,, leasing, operation or condition of such
insurable properties, in an amount not less than
$100,000,000 combined single limit coverage for personal
injury and property damage with respect to any one
occurrence, which may be under an umbrella policy. Anything
contained in this clause (iii) to the contrary
notwithstanding, the Superior Instrument Requirements with
respect to the kinds and amount of insurance described in
this clause (iii) shall be satisfied by Mortgagor;
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(iv) workers' compensation insurance to the extent
required by law;
(v) business interruption insurance covering not less
than 6 months of loss, provided that, at any time that
Mortgagor is renewing any policy for such insurance or
taking out any new or replacement policy for such insurance
covering a period of less than 12 months, Mortgagor shall
deliver to Mortgagee an Officers' Certificate certifying
that the period of coverage to be maintained by Mortgagor
under such policy is the maximum that can be maintained at
rates determined by Mortgagor to be reasonable for such
coverage;
(vi) to the extent available, flood insurance in an
amount not less than the Insurance Amount, or, if such
insurance cannot be obtained in an amount not less than the
Insurance Amount, such lesser amount as may then be so
obtainable but in no event less than $100,000,000; and
(vii) such other insurance with respect to such
insurable properties against loss or damage of the kinds (A)
from time to time customarily insured against by persons
owning or using first-class casino and hotel complexes in
Atlantic City, New Jersey and (B) required to be maintained
pursuant to any Superior Instrument Requirements.
Notwithstanding the foregoing, to the extent not violative
of any Superior Instrument Requirements, (A) Mortgagor may
maintain a deductible with respect to the insurance policies
described in clauses (i), (ii), (vi) and (vii) in an amount not
to exceed $250,000, (B) Mortgagor may maintain a deductible with
respect to the insurance policies described in clause (iii) in an
amount not to exceed $500,000, and (C) Mortgagor may maintain a
deductible with respect to the insurance policies described in
clause (v) in an amount not to exceed $1,000,000.
(b) (i) Each policy of insurance maintained by Mortgagor
pursuant to Section 5.10(a) shall, (A) except in the case of
workers' compensation insurance, name Mortgagor as an insured and
shall name as additional insurers (1) Mortgagee and (2) to the
extent required by the Superior Instrument Requirements, the
lessors under any Facility Leases and the holders of the Superior
Mortgages, (B) provide that all insurance proceeds for losses,
except in the case of comprehensive general liability insurance
and workers' compensation insurance or as otherwise provided in
Subsections (d), (e) and (f) of this Section 5.10, be payable
solely to Mortgagee (or if such insurance proceeds are for losses
sustained solely to property covered by a Superior Mortgage, such
other party as is required to receive such proceeds under a
Superior Mortgage), (C) include effective waivers (whether under
the terms of any such policy or otherwise) by the insurer of all
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claims for insurance premiums against all loss payees and named
insurers (other than Mortgagor) and all rights of subrogation
against any named insured, (D) except in the case of
comprehensive general liability and workers' compensation
insurance, provide that any losses shall be payable
notwithstanding (1) any act, failure to act, negligence of, or
violation or breach of warranties, declarations or conditions
contained in such policy by Mortgagor or Mortgagee or any other
named insured or loss payee (including, without limitation, (x)
the lessors under the Facility Leases with respect to any Leased
Facilities and (y) the holder of any Superior Mortgage with
respect to the property encumbered thereby), (2) the occupation
or use of the insurable properties for purposes more hazardous
than permitted by the terms of the policy, (3) any foreclosure or
other proceeding or notice of sale relating to the insurable
properties or (4) any change in the title to or ownership or
possession of the insurable properties, (E) contain a
non-contributory mortgagee clause in favor of Mortgagee, and (F)
provide that if all or any part of such policy is cancelled,
terminated or expires, the insurer will forthwith give notice
thereof to each named insured and loss payee and that no
cancellation, non-renewal, reduction in amount or material change
in coverage thereof shall be effective until at least 30 days
after receipt by each named insured and loss payee of written
notice thereof.
(ii) Mortgagor may effect the insurance required under this
Section 5.10 under blanket and/or umbrella policies covering
properties owned or leased by Affiliates of Mortgagor; provided,
that (A) such policies otherwise comply with this Senior
Guarantee Mortgage, (B) except with respect to flood insurance
and earthquake insurance, provide that the amount of coverage
afforded thereunder with respect to the Trust Estate shall not be
reduced by claims thereunder against such other properties and
(C) in the case of flood insurance provide that the amount of
coverage afforded thereunder with respect to the Trust Estate
shall not be reduced below $100,000,000 by reason of claims
thereunder against such other properties.
(c) Mortgagor shall deliver to Mortgagee duplicate
originals of all insurance policies that Mortgagor is required to
maintain pursuant to this Section 5.10. Mortgagee shall not be
responsible for effecting or renewing any insurance or for the
responsibility or solvency of the insurers.
(d) Mortgagor shall give written notice to Mortgagee
immediately upon obtaining knowledge of any Casualty which (i)
results in damage, loss or destruction in an amount in excess of
$5,000,000 to any buildings or improvements on the Premises
and/or any Tangible Personal Property or (ii) pursuant to any
Superior Instrument Requirement, would require the deposit of
insurance proceeds with the Depositary, or action or proceeding
(49)
<PAGE>
with respect thereto. Whenever the Superior Instrument
Requirements require or permit the selection of the Depositary by
Mortgagor, Mortgagor shall select the Insurance Trustee as the
Depositary. Within 30 days after any Casualty which results in
any damage, loss or destruction in an amount in excess of
$10,000,000 to any buildings or improvements on the Premises
and/or any Tangible Personal Property, Mortgagor shall deliver to
Mortgagee a certificate of an Architect stating whether, in such
Architect's opinion, applicable Legal Requirements permit the
Restoration of said buildings and improvements for the same uses
and to the same size and quality in all material respects, as
existed immediately prior to the Casualty (and if said
certificate states that Legal Requirements do not permit such
Restoration, said certificate shall describe the manner closest
approximating such criteria to which the buildings and
improvements could be so restored and shall be accompanied by a
Certificate Of Appraised Value dated not more than 10 days prior
to delivery setting forth the Appraised Value immediately prior
to the Casualty and the estimated Appraised Value immediately
after the Restoration). If Mortgagor is required to deliver such
Certificates of Appraised Value and if based on such Certificates
of Appraised Value immediately after Restoration, (i) the
aggregate Outstanding Amount of Indebtedness of the Mortgagor
immediately after such Restoration shall exceed the greater of
(A) 80% of the Appraised Value immediately after such Restoration
or (B) the quotient of the Outstanding Amount of Indebtedness of
the Mortgagor immediately prior to such Casualty divided by the
Appraised Value immediately prior to the Casualty multiplied by
the Appraised Value immediately after such Restoration, or (ii)
applicable Legal Requirements do not permit the Restoration of
the Casino Hotel for use as a casino and hotel complex, then, in
either of such events, the proceeds of any insurance shall not be
applied to Restoration but shall instead be paid and delivered to
Mortgagee to the extent of the then Outstanding Amount of the
Senior Partnership Note and any other interest or other sums due
hereunder or thereunder to be applied to the satisfaction of this
Senior Guarantee Mortgage to the extent proceeds are available
for such purpose and provided that no additional sums are due to
the Trustee or the Holders under the Senior Notes or the Senior
Note Indenture, the balance of any net insurance proceeds shall
be paid to Mortgagor.
(e) Subject to the provisions of Subsection 5.10(d), if a
Casualty occurs, the following shall apply:
(i) If the cost of Restoration is less than
$10,000,000, the net insurance proceeds shall be paid by
Mortgagee to Mortgagor (unless the Superior Instrument
Requirements provide that the same shall be paid to the
Depositary).
(50)
<PAGE>
(ii) If the cost of Restoration is $10,000,000 or more
or if the Superior Instrument Requirements provide that the
same shall be paid to the Depositary, the net insurance
proceeds shall be paid by Mortgagee to the Insurance Trustee
(or other Depositary required by the Superior Instrument
Requirements, provided that such Depositary holds such
proceeds in trust for purposes of paying the costs of
Restoration).
(iii) Mortgagor shall commence with reasonable
promptness under the circumstances and thereafter with due
diligence proceed to perform and complete in a good and
workmanlike manner the restoration, repair, replacement or
rebuilding of the damage or destruction resulting from the
Casualty (all such restoration, repair, replacement and
rebuilding following a Casualty or a Taking are referred to
as "Restoration") in accordance with the plans and
specifications submitted to the Insurance Trustee, in
conformance with all Legal Requirements and Superior
Instrument Requirements, and in accordance with the further
provisions of this Subsection (e), regardless of the extent
of any such Casualty and whether or not net insurance
proceeds, if any, shall be available or, if available, shall
be sufficient, for the purpose of the Restoration. All
Restoration work shall be performed in accordance with the
applicable provisions of Section 5.12 and in conformance
with all Superior Instrument Requirements, Legal
Requirements and Insurance Requirements and, prior to
commencing any Restoration, Mortgagor shall obtain all
Permits necessary in connection therewith, and shall obtain,
and keep in full force and effect until the completion of
such Restoration, such additional insurance as the Insurance
Trustee and Superior Instrument Requirements may require.
The plans and specifications for the Restoration shall be
accompanied by a Mortgagor's Certificate and an Opinion of
Counsel to the effect that upon the completion of the
Restoration pursuant to the plans and specifications, the
Premises and all buildings and improvements thereon will
comply with all Superior Instrument Requirements, Legal
Requirements and Insurance Requirements.
(iv) Any insurance proceeds which Mortgagor receives
shall be held by Mortgagor in trust for the purpose of
paying the cost of the Restoration, except as otherwise
provided herein.
(v) Any net insurance proceeds that the Insurance
Trustee holds pursuant to this Subsection (e), shall be
deposited in an interest-bearing investment reasonably
designated by Mortgagor (to the extent Mortgagor is
permitted to designate such investment under the Superior
Instrument Requirements) (and the interest thereon shall be
(51)
<PAGE>
added to such proceeds) and shall be paid by the Insurance
Trustee to reimburse Mortgagor for, or to make payment for, the
Restoration, after the Insurance Trustee deducts therefrom the
amount of any reasonable costs and expenses incurred in
connection with the performance of its obligations under this
Section 5.10. The Insurance Trustee shall make such payments not
more frequently than once every 30 days upon the written request
of Mortgagor (unless more frequent payments are required by
Superior Instrument Requirements), by paying to Mortgagor or the
persons named in the certificate described in clause (vi) of this
Subsection (e) the respective amounts stated in such certificate
from time to time as the Restoration progresses, provided
Mortgagor has complied with the requirements of this Subsection
(e) and such payment is permitted by any applicable Superior
Instrument Requirements. Mortgagor's request shall be
accompanied by (A) the certificate described in clause (vi) of
this Subsection (e) and (B) a title company or official search,
or other evidence reasonably acceptable to the Insurance Trustee,
showing that there have not been filed with respect to the
Premises, any vendor's, contractor's, mechanic's, laborer's or
materialman's statutory or similar lien which has not been
discharged of record (or bonded against or secured by other
security) or any other encumbrance irrespective of its priority
(other than Permitted Encumbrances).
(vi) The certificate required by clause (v) of this
Subsection (e) shall (A) be a Mortgagor's Certificate,
countersigned by the Architect in charge of the Restoration
with respect to the matters described in (1) and (5) below,
(B) be dated not more than 10 days prior to such request and
(C) set forth (in addition to any other requirements
contained in any applicable Superior Instrument
Requirements) that:
(1) all of the Restoration theretofore performed
is in substantial compliance with the plans and
specifications theretofore submitted to the Insurance
Trustee and in compliance with all Superior Instrument
Requirements, Legal Requirements and Insurance
Requirements;
(2) the sum then requested either has been paid
by Mortgagor or is justly due to contractors,
subcontractors, materialmen, engineers, architects or
other persons who have rendered services or furnished
or contracted to deliver materials for the Restoration
therein specified, and the names and addresses of such
persons, a brief description of such services and
materials and the several amounts so paid or due to
each of said persons in respect thereof;
(52)
<PAGE>
(3) no part of the amount requested has been or
is the basis in any previous or then pending request
for the withdrawal of net insurance proceeds, and that
the sum then requested does not exceed the value of the
services and materials described in the certificate;
(4) except for the amount, if any, stated
pursuant to subclause (2) of this clause (vi) in such
certificate to be due for services or materials, and
except for amounts in dispute and/or customary
retainages, there is no outstanding indebtedness known
to the person signing such certificate, after due
inquiry, which is then due for labor, wages, materials,
supplies or services in connection with such
Restoration; and
(5) the remaining cost, as estimated by the
persons signing such certificate, of the Restoration in
order to complete the same does not exceed the net
insurance proceeds remaining in the hands of Insurance
Trustee after payment of the sum requested in such
certificate or if such estimated cost does exceed such
insurance proceeds such certificate shall state the
amount of any such deficiency. If the certificate
states that such deficiency will exist, Mortgagor shall
deliver the amount of such deficiency in cash or cash
equivalent to the Insurance Trustee simultaneously with
the delivery of such certificate, which amount shall be
deemed insurance proceeds for purposes of this Section
5.10(e).
(vii) If net insurance proceeds shall be insufficient
to pay the entire cost of the Restoration, then, after
completion of the Restoration, Mortgagor shall pay the
deficiency. If all or any part of the net insurance
proceeds are not used for the Restoration in accordance with
this Subsection (e) (because such proceeds exceed the amount
required to complete the Restoration), then upon completion
of the Restoration in accordance with this Subsection (e),
such amount not so used, if held by the Insurance Trustee,
shall be paid to Mortgagor (if permitted by Superior
Instrument Requirements).
(f) Mortgagor shall not take out separate insurance,
concurrent in form or contributing in the event of loss with that
required to be maintained pursuant to this Section 5.10, unless
the same is permitted by Superior Instrument Requirements.
Mortgagor shall immediately notify Mortgagee whenever any such
separate insurance is taken out and shall promptly deliver to
Mortgagee a duplicate original of the policy of such insurance, a
copy thereof certified by the insurer or a certificate thereof.
(53)
<PAGE>
Provided that no Event of Default has occurred and is continuing,
all net business interruption insurance proceeds shall be paid to
Mortgagor, to be segregated from the other funds of Mortgagor and
held in trust by Mortgagor for the following purposes and in the
following order of priority: (i) for the payment of Impositions
and amounts due under the Facility Leases and Superior Mortgage,
(ii) for debt service for the estimated period of Restoration
(for purposes of this Subsection 5.10(f), interest and principal
payments due on any payment date under the Senior Partnership
Note will be deemed to accrue in equal daily installments
beginning the day after the immediately preceding payment date
and ending on such payment date), and (iii) for any other expense
incurred in connection with the operation or business of the
Casino Hotel.
(g) Insurance claims by reason of damage or destruction to
any portion of the Trust Estate may be adjusted by Mortgagor, but
Mortgagee shall have the right (but not the obligation) to join
Mortgagor in adjusting, and approving the adjustment of, any such
loss except in the event of a loss where the amount of insurance
reasonably anticipated to be received with respect to such loss
is less than $5,000,000, and Mortgagor shall assist Mortgagee in
any such adjustment at the request of Mortgagee. If Mortgagee at
its election as aforesaid joins Mortgagor in any adjustment
process, then Mortgagee's approval of the adjustment shall not be
unreasonably withheld.
(h) Notwithstanding anything contained herein to the
contrary, if an Event of Default shall have occurred and be
continuing, Mortgagee may, at its option, (A) refrain from paying
to Mortgagor or the Insurance Trustee any net insurance proceeds
or (B) instruct the Insurance Trustee to pay to Mortgagee any
insurance proceeds then held by the Insurance Trustee, as the
case may be.
Section 5.11. Limitations on Building Demolition,
Alterations, Improvements and New Construction.
Mortgagor shall not authorize, permit or make any
demolition, alteration or improvement of any building, structure
or other improvements included in the Trust Estate or any new
construction on any part of the Trust Estate, except in
conformity with and subject to the limitations hereinafter in
this Section 5.11 set forth and set forth in the Senior Note
Indenture.
Unless an Event of Default shall have occurred and be
continuing, Mortgagor shall have the right at all times to make
or permit such demolition, alterations, improvements or new
construction, structural or otherwise (herein sometimes called
collectively "Alterations" and each, individually, an
(54)
<PAGE>
"Alteration"), of the Trust Estate, to be made in all cases
subject to each of the following conditions:
(a) No Alteration shall be undertaken or carried out except
in conformity with all Superior Instrument Requirements, Legal
Requirements and Insurance Requirements.
(b) If the estimated cost of any Alteration, together with
other Alterations that constitute a single construction plan or
project (whether or not accomplished in several stages or
procedures), exceeds $5,000,000, the building or buildings,
structures or other improvements as so improved or altered, upon
the completion of the work, shall be of a value not less than the
value of such building or buildings, structures or other
improvements immediately prior to the making of such Alteration.
(c) Any Alteration which is structural in nature or
involves an estimated cost of more than $5,000,000 shall be
conducted under the supervision of an Architect, and no such
Alteration shall be undertaken until 10 days after there shall
have been filed with Mortgagee detailed plans and specifications
and cost estimates therefor, prepared and approved in writing by
such Architect and accompanied by a certificate of such Architect
stating that such plans and specifications conform to all
applicable provisions of this Section 5.11.
(d) No Alteration involving an estimated cost of more than
$5,000,000 shall be undertaken until Mortgagor has furnished to
Mortgagee, at Mortgagor's sole cost and expense, a surety bond or
bonds, covering performance, and labor and material payments with
respect to the work to be so performed, naming Mortgagee as
obligee, issued by a responsible surety company, authorized to do
business in the State of New Jersey, in a form generally and
customarily used by such surety in an amount equal to the
estimated cost of construction of the work covered by the plans
and specifications therefor, guaranteeing the performance and
completion of such construction, substantially in conformity with
the said plans and specifications and within a reasonable time,
subject to delays by fire, strikes, lock-out, acts of God,
inability to obtain labor or materials, governmental
restrictions, enemy action, civil commotion or unavoidable
Casualty or other similar causes beyond the control of Mortgagor,
free and clear of all liens, claims and liabilities for the cost
of such Alterations. If such surety bond or bonds shall be
unobtainable Mortgagor shall deliver to Mortgagee security by
cash, letter of credit or other guarantee, affording
substantially the same protection as would such bond or bonds.
(e) All work done in connection with any Alterations shall
be done promptly and in good and workmanlike manner. The work in
connection with any Alteration shall be prosecuted with
reasonable dispatch, delays due to fire, strikes, lock-outs, acts
(55)
<PAGE>
of God, inability to obtain labor or materials, governmental
restrictions, enemy action, civil commotion or unavoidable
Casualty or similar causes beyond the control of Mortgagor
excepted.
(f) If the estimated cost of Alterations exceeds
$5,000,000, Mortgagor shall have delivered to Mortgagee (i) prior
to the commencement of such Alterations, copies of all Permits
required for the commencement of such work together with a
certificate of the Architect or an Opinion of Counsel to the
effect that all Permits required for the commencement of such
Alterations have been obtained; and (ii) within a reasonable
period of time after the completion of the Alterations, copies of
all Permits required in connection with the completion thereof,
together with either an Opinion of Counsel or a certificate of
the Architect that all such Permits have been so obtained by
Mortgagor and that Mortgagor has complied with all the
requirements of this Section 5.11.
(g) No Alterations of any kind shall be made which shall
change the use or reduce the size or quality of any building,
structure or other improvements in any material respect or which
shall change the use of the Casino Hotel from its use as a gaming
and hotel facility.
(h) No Alterations costing in excess of $5,000,000,
together with other Alterations that constitute a single
construction plan or project (whether or not accomplished in
several stages or procedures), shall be made if such Alterations
are not expected to be completed at least 120 days prior to the
Stated Maturity of the Senior Partnership Note (except if such
Alterations are required in order to comply with Legal
Requirements or Superior Instrument Requirements).
(i) Mortgagor shall maintain at all times during the
performance of Alterations, in addition to any insurance required
to be maintained under Section 5.11 hereof, appropriate workers'
compensation insurance covering all persons employed for such
Alterations to the extent required by applicable law, and
comprehensive general liability insurance expressly covering the
additional hazards due to such Alterations. Each such policy of
insurance shall comply with the provisions of Section 5.10(b),
and Mortgagor shall comply with Subsections (c), (d), (e), (f),
(g) and (h) of Section 5.10 in connection with all such
insurance.
Section 5.12. Leases.
Mortgagor shall not:
(a) lease the Trust Estate substantially as an entirety to
any Person (except in accordance with the provisions of Article
(56)
<PAGE>
Eight of the Senior Note Indenture), nor shall Mortgagor lease
either the Casino Hotel or the Casino or the Hotel or any parking
facilities substantially as an entirety to any Person;
(b) enter into any Lease, or renew, modify, extend,
terminate, or amend any Lease, except in the ordinary course of
business of operating the Casino Hotel;
(c) receive or collect, or permit the receipt or collection
of, any rental payments under any Lease more than one month in
advance of the respective periods in respect of which they are to
accrue, except that, in connection with the execution and
delivery of any Lease or of any amendment to any Lease, rental
payments thereunder may be collected and received in advance in
an amount not in excess of three months' rent and/or a security
deposit may be required thereunder in an amount not exceeding one
year's rent;
(d) collaterally assign, transfer or hypothecate (other
than to Mortgagee hereunder, to the holder of the Senior Note
Mortgage, or to the holder of the Superior Mortgage, but in each
case only with respect to the property secured by such mortgage)
(i) any rental payment under any Lease whether then due or to
accrue in the future, (ii) the interest of Mortgagor as landlord
under any Lease or (iii) the rents, issues or profits of the
Trust Estate;
(e) after the date hereof, enter into any Lease, or renew
any Lease, unless such Lease contains terms to the effect as
follows:
(i) the Lease and the rights of the tenants thereunder
shall be subject and subordinate to the rights of Mortgagee
under this Senior Guarantee Mortgage and the holders of the
Superior Mortgage,
(ii) the Lease may be assigned by the landlord
thereunder to Mortgagee, and
(iii) the rights and remedies of the tenant in respect
of any obligations of the landlord thereunder shall be
nonrecourse as to any assets of the landlord other than its
equity in the building in which the leased premises are
located or the proceeds thereof; or
(f) modify any Lease with respect to the matters described
in clauses (i) through (iii) of paragraph (e).
If Mortgagor enters into a Lease (other than with an
Affiliate of Mortgagor) for a term of not less than 3 years,
Mortgagee shall deliver a non-disturbance and attornment
agreement substantially in the form of Schedule 7 hereto,
(57)
<PAGE>
following receipt of a certificate of a leasing broker (who is
not an Affiliate of Mortgagor or the broker involved in such
transaction) experienced with respect to leases of commercial
space in the Atlantic City area stating that the rent under the
Lease throughout the term thereof is not less than fair market
rent and the other terms of the Lease are fair and reasonable in
the commercial leasing market. Mortgagor shall, upon demand,
reimburse Mortgagee for any costs and expenses (including
reasonable attorneys' fees and disbursements) incurred by
Mortgagee in connection with the preparation, review and delivery
of such non-disturbance and attornment agreements.
Promptly after the execution and delivery hereof, Mortgagor
shall cause the lessee under each Lease now in effect, and
promptly after each Lease is executed or becomes effective after
the date of the execution and delivery hereof, Mortgagor shall
cause the lessee under each such Lease, to be duly notified in
writing (unless the substance and effect of such notice shall be
contained in such Lease) of the subjection of the owner's
interest, as lessor, in and to such Lease to the lien of this
Senior Guarantee Mortgage and of the name and address of
Mortgagee. Each such notice shall state that the lease of such
lessee is a Lease as herein defined. If a new Mortgagee is at
any time appointed hereunder or the address of Mortgagee shall at
any time be changed, Mortgagor shall cause each lessee under each
Lease to be promptly notified in writing of the name and address
of such new Mortgagee or the new address of Mortgagee. Mortgagor
shall use reasonable efforts (but shall not be obligated to incur
any expenditure other than de minimis amounts) to obtain from
each lessee under each Lease to whom any notice is sent pursuant
to this paragraph an acknowledgment of receipt of such notice,
and Mortgagor shall promptly deliver to Mortgagee,, upon request,
a copy of each such acknowledgment of receipt which it is able to
obtain. Mortgagee shall not be responsible for securing or
causing Mortgagor to secure any such acknowledgment.
Section 5.13. Compliance Certificates.
Mortgagor shall deliver to Mortgagee, within 120 days after
the end of each fiscal year of Mortgagor, a Mortgagor's
Certificate stating that
(a) a review of the activities of Mortgagor during such
year and of performance under this Senior Guarantee Mortgage has
been made under the signer's supervision, and
(b) to the best of each signer's knowledge, based on such
review, Mortgagor has fulfilled all of Mortgagor's obligations
under this Senior Guarantee Mortgage throughout such year, or, if
there has been a default in the fulfillment of any such
obligation, specifying each such default known to him and the
nature and status thereof.
(58)
<PAGE>
Promptly after Mortgagor may reasonably be deemed to have
knowledge of a default hereunder, Mortgagor shall deliver to
Mortgagee a notice specifying the nature and period of existence
thereof and the action Mortgagor is taking and proposes to take
with respect thereto.
Section 5.14. To Keep Books; Inspection by Mortgagee.
Mortgagor will keep proper books of record and account, in
which full and correct entries shall be made of all dealings or
transactions of or in relation to the properties, business and
affairs of Mortgagor in accordance with generally accepted
accounting principles consistently applied. Said books shall be
maintained in an office located either in Atlantic City, New
Jersey or in the Borough of Manhattan, City of New York, State of
New York. Mortgagor shall at any and all times, upon request of
Mortgagee and at the expense of Mortgagor, permit Mortgagee and
its representatives to inspect the Casino Hotel and any other
buildings, structures and improvements now or hereafter located
on the Land and the books of account, records, reports and other
papers of Mortgagor, and to make copies and extracts therefrom,
and will afford and procure a reasonable opportunity to make any
such inspection (provided, that any such inspection shall not
unreasonably interfere with the business operations of
Mortgagor), and Mortgagor will furnish to Mortgagee any and all
information as Mortgagee may reasonably request, with respect to
the performance by Mortgagor of its covenants in this Senior
Guarantee Mortgage.
Section 5.15. Advances by Mortgagee.
If Mortgagor shall fail to perform any of the covenants,
terms, provisions or conditions contained in this Senior
Guarantee Mortgage and such failure shall continue for 10 days
following notice thereof given by Mortgagee (or at any time,
without notice, in case of emergency), Mortgagee may (but is not
obligated to), at any time and from time to time, take any action
or make advances, to effect performance of any such covenant,
term, provision or condition on behalf of Mortgagor; and all
moneys so used, paid or advanced by Mortgagee and all reasonable
costs and expenses incurred by Mortgagee in connection therewith,
together with interest on all of the same at the rate of interest
set forth in the Senior Partnership Note, shall be immediately
due and payable by Mortgagor to Mortgagee and all such moneys,
costs and expenses shall be secured by the lien of this Senior
Guarantee Mortgage prior to the Senior Partnership Note. No such
advance or payment by Mortgagee shall relieve Mortgagor from any
default hereunder or impair any right or remedy of Mortgagee.
Section 5.16. Waiver of Stay, Extension or Usury Laws.
(59)
<PAGE>
Mortgagor covenants (to the extent that it may lawfully do
so) that it will not at any time insist upon, or plead, or in any
manner whatsoever claim or take the benefit or advantage of, any
usury, stay or extension law or any other law which would
prohibit or forgive Mortgagor from paying all or any portion of
the obligations secured by this Senior Guarantee Mortgage,
wherever enacted, now or at any time hereafter in force, or which
may otherwise affect the covenants or the performance of this
Senior Guarantee Mortgage; and Mortgagor (to the extent that it
may lawfully do so) hereby expressly waives all benefit or
advantage of any such law, and covenants that it shall not
hinder, delay or impede the execution of any power herein granted
to Mortgagee, but shall suffer and permit the execution of every
such power as though no such law had been enacted.
Section 5.17. Eminent Domain.
(a) Mortgagor shall notify Mortgagee immediately upon
obtaining knowledge of any Taking affecting the Trust Estate or
any part thereof. If the Taking is a Taking of less than the
whole or substantially all of the Premises but (i) is estimated
to result in an award of more than $10,000,000 or (ii) the Taking
will interfere with or adversely affect the operation of the
Casino Hotel (other than any portion thereof consisting solely of
unimproved, paved or unpaved surface parking) other than to a de
minimis extent, then within 30 days after such Taking, Mortgagor
shall deliver to Mortgagee a certificate of an Architect stating
whether, in such Architect's opinion, applicable Legal
Requirements permit the Restoration of any buildings and
improvements for the same uses and to the same size and quality
in all material respects as existed immediately prior to the
Taking (and if said certificate states that Legal Requirements do
not permit such Restoration, said certificate shall describe the
manner closest approximating such criteria to which the buildings
and improvements could be so restored and shall be accompanied by
a Certificate of Appraised Value dated not more than 10 days
prior to delivery setting forth the Appraised Value immediately
prior to the Taking and the estimated Appraised Value immediately
after the permitted Restoration). If Mortgagor is required to
deliver such Certificate of Appraised value and if based on such
Certificate of Appraised Value immediately after Restoration, (i)
the Outstanding Amount of Indebtedness of the Partnership
immediately after such Restoration shall exceed the greater of
(A) 80% of the Appraised Value immediately after such Restoration
or (B) the quotient of the Outstanding Amount of Indebtedness of
the Partnership immediately prior to such Taking divided by the
Appraised Value immediately prior to the Taking multiplied by the
Appraised Value immediately after such Restoration, or (ii)
applicable Legal Requirements do not permit the Restoration of
the Casino Hotel for use as a casino and hotel complex, then, in
any of such events, the Taking shall be deemed a Taking of "the
whole or substantially all of the Premises." The Taking shall be
(60)
<PAGE>
deemed a Taking of "less than the whole or substantially all of
the Premises" if Mortgagor is not required to deliver a
Certificate Of Appraised Value or if, at the time of delivery of
such Certificate, neither of the tests set forth in clauses (i)
and (ii) is met.
(b) If at any time there shall occur a Taking of less than
the whole or substantially all of the Premises and the award or
awards resulting therefrom payable to Mortgagor (and not to any
lessor under any Facility Lease or the holder of any Superior
Mortgage) (after there shall have been first deducted the fees
and expenses incurred in connection with the termination,
settlement and collection of such award or awards, including,
without limitation, reasonable counsel fees and expenses,
hereinafter referred to as "Settlement Costs") (i) shall be less
than $10,000,000 (except to the extent that the Insurance Trustee
or a Depositary is required to hold such amount pursuant to a
Superior Instrument Requirement), the entire amount of such award
shall be paid to Mortgagor; and (ii) if such award is $10,000,000
or more, the entire amount of such award shall be paid to the
Insurance Trustee (or other Depositary required by a Superior
Mortgage, provided that such Depositary holds such award in trust
for purposes of paying the cost of Restoration). In either
event, such awards shall be applied to the cost of Restoration of
the Trust Estate as nearly as practicable to their uses, value
and condition immediately prior to the Taking (except to the
extent otherwise provided by Superior Instrument Requirements).
Mortgagor shall promptly commence and with due diligence perform
the Restoration in accordance with clauses (iii), (iv) and (vii)
of Subsection 5.10(e) (after substituting the words "Taking" for
"Casualty" and "award" for "net insurance proceeds"), at no cost
to Mortgagee. All claims or suits arising out of any Taking may
be settled by Mortgagor, except that Mortgagee shall have the
right (but not the obligation) to participate in such claim or
suit, and to approve settlement thereof (and notwithstanding
anything in the Facility Leases to the contrary, Mortgagor shall
not agree to any settlement or compromise of the amount of any
such claim or suit, except a claim or suit where the amount
reasonably anticipated to be received by Mortgagor is less than
$5,000,000). If Mortgagee at its election as aforesaid joins
such claim or suit, Mortgagee's approval of such settlement shall
not be unreasonably withheld. The Insurance Trustee shall
promptly pay such sums as are received by it from such Taking
from time to time in accordance with the procedures set forth in
clauses (v) and (vi) of Subsection 5.10(e) (after substituting
the words "Taking" for "Casualty" and "award" for "net insurance
proceeds").
(c) If at any time there shall occur a Taking of the whole
or substantially all of the Premises, then the award payable to
Mortgagor shall not be applied to Restoration but shall instead
be paid and delivered to the Trustee (subject to the rights of
(61)
<PAGE>
the lessors under any Facility Leases and the holders of any
Superior Mortgages) to the extent of the then Outstanding Amount
of the Senior Partnership Note and any other interest or other
sums due hereunder or thereunder to be applied to the
satisfaction of this Senior Guarantee Mortgage to the extent
proceeds are available for such purpose and provided that no
additional sums are due the Trustee or the Holders under the
Mortgage Senior Partnership Notes or the Senior Note Indenture,
the balance of any award shall be paid to Mortgagor.
(d) Notwithstanding anything contained herein to the
contrary, if an Event of Default shall have occurred and is
continuing, Mortgagee may, at its option, (i) refrain from paying
to Mortgagor or the Insurance Trustee any award or (ii) instruct
the Insurance Trustee to pay to Mortgagee any award then held by
the Insurance Trustee, as the case may be.
Section 5.18. Facility Leases.
(a) Mortgagor shall do or cause to be done all things
necessary to preserve and keep unimpaired the rights of
Mortgagor, as lessee under all Facility Leases, and, to prevent
any termination, surrender, cancellation, forfeiture or
impairment of any thereof. Mortgagor shall at all times fully
perform and comply with all agreements, covenants, terms and
conditions imposed upon or assumed by it as lessee under each of
the Facility Leases (including, without limitation, the covenant
to pay rent and all taxes, assessments and other charges
mentioned therein) prior to the expiration of any notice and/or
cure period provided in each such Facility Lease. Upon receipt
by Mortgagee from a Lessor of any written notice of default by
the lessee thereunder, Mortgagee may rely thereon and take any
action Mortgagee deems necessary in its sole discretion to
prevent or to cure any default by Mortgagor in the performance of
or compliance with any of the agreements, covenants, terms or
conditions imposed upon or assumed by Mortgagor as lessee under
such Facility Lease, even though the existence of such default or
the nature thereof be questioned or denied by Mortgagor or by any
party on behalf of Mortgagor. Without limiting the generality of
Section 3.9, Mortgagor hereby expressly grants to Mortgagee, and
agrees that Mortgagee shall have, the absolute and immediate
right to enter in and upon the Premises or any part thereof to
such extent and as often as Mortgagee, in its sole discretion,
deems necessary or desirable for the purpose permitted by the
immediately preceding sentence, subject only to applicable Legal
Requirements. Without limiting Mortgagor's obligations or
Mortgagee's rights set forth above or limiting Mortgagee's other
remedies under this Senior Guarantee Mortgage, Mortgagee may pay
and expend such sums of money as Mortgagee in its sole discretion
deems necessary for any such purpose, and Mortgagor hereby agrees
to pay to Mortgagee immediately and without demand, all such sums
referred to above, so paid and expended by Mortgagee, together
(62)
<PAGE>
with interest thereon from the date of each such payment at the
highest rate of interest set forth in the Senior Partnership
Note. All sums so paid and expended by Mortgagee, and the
interest thereon, shall be added to and be secured by the lien of
this Senior Guarantee Mortgage.
(b) Mortgagor further covenants and agrees as follows:
(i) Mortgagor shall not surrender, terminate or cancel
any Facility Lease, and shall not without the consent of
Mortgagee modify, change, supplement, alter or amend any
Facility Lease either orally or in writing if an impairment
of the security granted under this Senior Guarantee Mortgage
would result therefrom. As further security for the
repayment of the indebtedness secured hereby and for the
performance of the covenants herein and in each Facility
Lease contained, Mortgagor hereby assigns to Mortgagee all
of Mortgagor's rights, privileges and prerogatives as lessee
under each Facility Lease to terminate, cancel, modify,
change, supplement, alter or amend such Facility Lease and
any such termination, cancellation, modification, change,
supplement, alteration or amendment of a Facility Lease
without the prior consent thereto by Mortgagee shall be void
and of no force and effect. Unless (1) an Event of Default
has occurred and is continuing and (2) either (A) there has
been an acceleration of maturity of the Senior Partnership
Note pursuant to Section 3.2 or (B) Mortgagee exercises its
rights under Section 3.9, Mortgagee shall have no right to
terminate, cancel, modify, change, supplement, alter or
amend any Facility Lease.
(ii) Solely for the benefit of Mortgagee, Trustee, the
Holders and no other person, no release or forbearance of
any of Mortgagor's obligations under any Facility Lease,
pursuant to such Facility Lease or otherwise, shall release
Mortgagor from any of Mortgagor's other obligations under
this Senior Guarantee Mortgage.
(iii) Unless Mortgagee shall otherwise expressly
consent in writing, the fee title to the Leased Facilities
and Mortgagor's leasehold estates therein shall not merge
and shall always remain separate and distinct,
notwithstanding the union of said estates either in the
Lessor or in the lessee, or in a third party by purchase or
otherwise
(iv) Mortgagor shall promptly notify Mortgagee in
writing of any request made by Mortgagor, as lessee under
any Facility Lease, or any of the Lessors, for arbitration
proceedings under any Facility Lease and of the institution
of any arbitration proceedings, as well as all proceedings
thereunder. Mortgagor shall promptly deliver to Mortgagee a
(63)
<PAGE>
copy of the determination of the arbitrators in each such
arbitration proceeding. Mortgagee shall have the right to
participate in such arbitration proceedings in association with
Mortgagor or on its own behalf as an interested party.
(v) Mortgagor shall not consent to the subordination
of any Facility Lease to any mortgage, deed of trust or
other lien on the fee interest of the Lessor.
(vi) If Mortgagor acquires fee simple title or any
other estate, title or interest in any Leased Facility,
Mortgagor shall promptly notify Mortgagee of such
acquisition and, on request by Mortgagee, shall cause to be
executed and recorded all such other and further assurances
or other instruments in writing as may in the opinion of
Mortgagee be required or desirable to carry out the intent
and meaning of clause (x) of Granting Clause Third.
(vii) Within 5 days after Mortgagor's receipt of any
notice of any motion, application or effort to reject any
Facility Lease by any Lessor or any trustee arising from or
in connection with any case, proceeding or other action
commenced or pending by or against any Lessor under the Code
or any comparable provision contained in any present or
future federal, state, local, foreign or other statute, law,
rule or regulation ("Comparable Provision"), Mortgagor shall
give notice thereof to Mortgagee. Mortgagor hereby (A)
assigns to Mortgagee any and all of Mortgagor's rights as
lessee under Section 365(h) of the Code or any Comparable
Provision and (B) covenants that it shall not elect to treat
any Facility Lease as terminated pursuant to Section 365(h)
of the Code or any Comparable Provision without the prior
consent of Mortgagee and (C) agrees that any such election
by Mortgagor without such consent shall be null and void.
(viii) Without limiting the generality of the
foregoing, to the extent permitted by applicable law,
Mortgagor hereby unconditionally assigns, transfers and sets
over to Mortgagee all of Mortgagor's claims and rights to
the payment of damages arising from any rejection by Lessor
of any Facility Lease under the Code or any Comparable
Provision. Mortgagee shall have the right to proceed in its
own name or in the name of Mortgagor in respect of any
claim, suit, action or proceeding relating to the rejection
of any Facility Lease, including, without limitation, the
right to file and prosecute, in cooperation with Mortgagor,
any proofs of claim, complaints, motions, applications,
notices and other documents, in any case in respect of
Lessor under the Code or any Comparable Provision. This
assignment constitutes a present, irrevocable and
unconditional assignment of the foregoing claims, rights and
remedies, and shall continue in effect until all of the
(64)
<PAGE>
indebtedness and obligations secured by this Senior Guarantee
Mortgage shall have been satisfied and discharged in full. Any
amounts received by Mortgagee in damages arising out of the
rejection of any Facility Lease as aforesaid shall be applied
first to all reasonable costs and expenses of Mortgagee
(including, without limitation, reasonable attorneys' fees,
disbursements and court costs) incurred in connection with the
exercise of any of its rights or remedies under this Section
5.18, and thereafter as provided in Section 3.3.
(ix) If there shall be filed by or against Mortgagor a
petition under the Code or any Comparable Provision and
Mortgagor, as lessee under any Facility Lease, shall
determine to reject such Facility Lease, Mortgagor shall
give Mortgagee not less than 10 days' prior notice of the
date on which Mortgagor shall apply to the Bankruptcy Court
or other judicial body with appropriate jurisdiction for
authority to reject such Facility Lease. Mortgagee shall
have the right, but not the obligation, to serve upon
Mortgagor within such 10-day period a notice stating that
(a) Mortgagee demands that Mortgagor assume and assign such
Facility Lease to Mortgagee pursuant to Section 365 of the
Code or any Comparable Provision and (b) Mortgagee covenants
to cure or provide adequate assurance of prompt cure of all
defaults and provide adequate assurance of future
performance under such Facility Lease. If Mortgagee serves
upon Mortgagor the notice described in the preceding
sentence, Mortgagor shall not seek to reject such Facility
Lease and shall comply with the demand provided for in
clause (a) of the preceding sentence within 30 days after
the notice shall have been given subject to the performance
by Mortgagee of the covenant provided for in clause (b) of
the preceding sentence. The foregoing provisions of this
Section 5.18(ix) shall not apply to the extent not permitted
by applicable law. Effective upon the entry of an order for
relief in respect of Mortgagor under Chapter 7 of the Code
or any Comparable Provision, Mortgagor hereby assigns and
transfers to Mortgagee a non-exclusive right to apply to the
Bankruptcy Court or other judicial body with appropriate
jurisdiction for an order extending the period during which
such Facility Lease may be rejected or assumed.
(x) Mortgagor shall promptly give to Mortgagee copies
of (A) all notices of default and (B) any other
communications or notices with respect to events that relate
to the possible impairment of the security of this Senior
Guarantee Mortgage, which Mortgagor shall give or receive
under any Facility Lease and shall promptly notify Mortgagee
of any default under any Facility Lease on the part of the
Lessor or Mortgagor.
(65)
<PAGE>
(xi) Mortgagor shall enforce with due diligence all of
the obligations of the Lessor under each Facility Lease, to
the end that Mortgagor may enjoy all of the rights and
privileges granted to it under the Facility Leases.
(xii) Mortgagor shall notify Mortgagee within 5 days
after the transfer of a fee interest in any Leased Facility
or any portion thereof to or from an Affiliate.
(xiii) No Affiliate of Mortgagor shall at any time
hereafter acquire fee title to the Leased Land or any
portion thereof unless simultaneously with such acquisition
such Affiliate and Mortgagor execute and exchange (and
deliver to the Trustee an executed counterpart of) an
instrument in form and substance satisfactory to Mortgagee
providing that so long as such Affiliate owns such fee title
(A) such Affiliate shall not terminate the applicable
Facility Lease for any reason whatsoever (including, without
limitation, due to the default of Mortgagor under such
FacilitY Lease) and (B) such Affiliate shall not accept,
and, if tendered by Mortgagor shall promptly return to
Mortgagor, any payment of rent or other charges payable
under such Facility Lease in excess of the amount required
to pay the debt service and other sums payable under any
mortgage affecting such Affiliate's fee interest in the
applicable Leased Facility (and such Affiliate shall use
such funds only to pay its debt service obligations and
other sums payable under such mortgage) at any time that an
Event of Default, or a Default of the types described in
Section 3.1(a), (b) and (f) of this Senior Guarantee
Mortgage or Section 5.1(a), (b), (f) or (g) of the Senior
Note Indenture, shall have occurred and be continuing under
this Senior Guarantee Mortgage or the Senior Note Indenture.
(c) Subject to the provisions of Subsection 5.18(b)(iii),
if both the lessor's and lessee's estates under any Facility
Lease or any portion thereof shall at any time become vested in
one owner, this Senior Guarantee Mortgage and the lien created
hereby shall nevertheless not be destroyed or terminated by
application of the doctrine of merger and, in such event,
Mortgagee shall continue to have all of the rights and privileges
of a first leasehold mortgagee.
(d) Mortgagor hereby acknowledges that if any Facility
Lease shall be terminated prior to the natural expiration of its
term due to default by the lessee thereunder, and if pursuant to
such Facility Lease, Mortgagee or its designee shall acquire from
the Lessor a new lease of the Leased Facility or any portion
thereof, Mortgagor shall have no right, title or interest in or
to such lease or the leasehold estate created thereby, or the
options therein contained.
(66)
<PAGE>
(e) Each Facility Lease hereafter entered into or assumed
by Mortgagor as lessee or sublessee shall contain provisions (i)
permitting the assignment of the same to Mortgagee and the
Trustee and permitting assignment without the lessor's consent if
this Senior Guarantee Mortgage is foreclosed; and (ii) providing
protection to Mortgagee, as leasehold mortgagee, in form
reasonably satisfactory to Mortgagee.
Section 5.19. Superior Mortgage.
(a) Mortgagor shall at all times fully perform and comply
with all agreements, covenants, terms and conditions imposed upon
or assumed by it as mortgagor under the Superior Mortgage prior
to the expiration of any notice and/or cure period provided in
each such Superior Mortgage. If a notice of default has been
given by the holder of the Superior Mortgage, Mortgagee may rely
thereon and take any action Mortgagee deems necessary in its sole
discretion to prevent or to cure any default by Mortgagor in the
performance of or compliance with any of the agreements,
covenants, terms or conditions imposed upon or assumed by
Mortgagor as mortgagor under the Superior Mortgage even though
the existence of such default or the nature thereof be questioned
or denied by Mortgagor or by any party on behalf of Mortgagor.
Without limiting the generality of Section 3.9, Mortgagor hereby
expressly grants to Mortgagee, and agrees that Mortgagee shall
have, the absolute and immediate right to enter in and upon the
Premises or any part thereof to such extent and as often as
Mortgagee, in its sole discretion, deems necessary or desirable
for the purpose permitted by the immediately preceding sentence,
subject only to applicable Legal Requirements. Without limiting
Mortgagor's obligations or Mortgagee's rights set forth above or
limiting Mortgagee's other remedies under this Senior Guarantee
Mortgage, Mortgagee may (i) pay and expend such sums of money as
Mortgagee in its sole discretion deems necessary or desirable for
any such purpose and (ii) in its sole discretion prepay the
Superior Mortgage, then in default, and Mortgagor hereby agrees
to pay to Mortgagee immediately and without demand, all such sums
referred to in (i) and (ii) above so paid and expended by
Mortgagee, together with interest thereon from the date of each
such payment at the highest rate of interest set forth in the
Senior Partnership Note. All sums so paid and expended by
Mortgagee and the interest thereon, shall be added to and be
secured by the lien of this Senior Guarantee Mortgage.
(b) Mortgagor further covenants and agrees:
(i) Mortgagor shall not, without first obtaining the
consent of Mortgagee in each instance: (A) modify, replace
or refinance the Superior Mortgage if (x) the collateral
securing the lien thereof would be increased thereby (other
than after-acquired property required by the terms of the
Superior Mortgage to be encumbered thereby), or (y) such
(67)
<PAGE>
modification, replacement or refinancing violates any other
provision of this Senior Guarantee Mortgage or the Senior Note
Indenture or (B) acquire or permit or suffer any Affiliate of
Mortgagor to acquire any Superior Mortgage or any interest
therein;
(ii) Mortgagor shall timely pay and perform all of the
obligations to be paid or performed by the mortgagor under
the Superior Mortgage, the note secured thereby and any
other instrument evidencing or securing the indebtedness
owing to any holder of the Superior Mortgage;
(iii) at any time and from time to time, Mortgagor
shall upon request of Mortgagee promptly use its reasonable
efforts to obtain an estoppel certificate or letter
addressed to Mortgagee from the holder of the Superior
Mortgage, such certificate or letter to be in such form as
Mortgagee shall reasonably request;
(iv) Mortgagor shall promptly give to Mortgagee copies
of (A) all notices of default or (B) any other notice or
communication with respect to events which relate to the
possible impairment of the security of this Senior Guarantee
Mortgage, which Mortgagor shall give or receive under the
Superior Mortgage and shall promptly notify Mortgagee of any
default under the Superior Mortgage on the part of
Mortgagor.
Section 5.20. Indemnification.
Mortgagor shall protect, indemnify, hold harmless and defend
Mortgagee and its directors, officers, partners, shareholders,
agents, servants and employees from and against any and all
liabilities, obligations, claims, damages, penalties, causes of
action, costs and expenses (including, without limitation,
reasonable attorneys' fees, disbursements and court costs),
imposed upon or incurred by or asserted against Mortgagee by
reason of (a) any injury to or death of Persons or loss of or
damage to property occurring on or about the Premises or any part
thereof or the adjoining sidewalks, curbs, vaults and vault
spaces, if any, streets, alleys or ways, (b) any use, nonuse or
condition of the Premises or any part thereof or the adjoining
sidewalks, curbs, vaults and vault spaces, if any, streets,
alleys or ways, (c) any failure on the part of Mortgagor to
perform or comply with any of the terms of this Senior Guarantee
Mortgage, (d) performance of any labor or services or the
furnishing of any materials or other property in respect of the
Premises or any part thereof made or suffered to be made by or on
behalf of Mortgagor, (e) any negligence or tortious act on the
part of Mortgagor or any of its agents, contractors, lessees,
licensees or invitees, or (f) any work in connection with the
Premises; provided, that no amounts shall be payable to Mortgagee
(68)
<PAGE>
under this Section 5.20 in respect of liabilities, obligations,
claims, damages, penalties, causes of action, costs or expenses
imposed upon or incurred by or asserted against Mortgagee to the
extent the same result from any negligence or tortious act on the
part of Mortgagee or any of its agents, contractors, lessees,
licensees or invitees. All amounts payable to Mortgagee under
this Section 5.20 shall be payable on demand; provided, that with
respect to consequential damages (other than attorneys' fees,
disbursements and court costs imposed upon or incurred by
Mortgagee in connection therewith, which shall in all events be
payable on demand), no such amounts shall be payable until, and
to the extent that, (i) there has been entered the final
determination of a court of competent jurisdiction awarding such
consequential damages to the party or parties seeking such
damages or (ii) an agreement of settlement with respect thereto
(which shall have been previously approved by Mortgagor, such
consent not to be unreasonably withheld) shall have been executed
by Mortgagee and such party or parties. Any such amounts which
are not paid within 5 days after demand therefor by Mortgagee
shall bear interest at the rate set forth in the Senior
Partnership Note from the date of such demand and all such
amounts and interest thereon shall be secured by the lien of this
Senior Guarantee Mortgage. In case any action, suit or
proceeding is brought against Mortgagee by reason of any such
occurrence, Mortgagor, upon request of Mortgagee, shall, at
Mortgagor's expense, resist and defend such action, suit or
proceeding or cause the same to be resisted or defended by
counsel designated by Mortgagor and approved by Mortgagee, which
approval shall not be unreasonably withheld; provided, that
Willkie, Farr & Gallagher is hereby approved by Mortgagee.
(69)
<PAGE>
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed and attested, all as of the day and
year first above written.
TRUMP'S CASTLE ASSOCIATES
Witness: ____________________ By: _________________________
Name:
Title:
FIRST BANK NATIONAL ASSOCIATION
Witness: ____________________ By: _________________________
Name:
Title:
(70)
<PAGE>
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the ___ day of December, 1993, before me personally came
Donald J. Trump, to me know, who, being by me duly sworn, did depose
and say that he resides at 721 Fifth Avenue, New York, New York; that
he is the managing general partner of Trump's Castle Associates, the
partnership described in and which executed the above instrument; and
he acknowledged that he signed and delivered the same on behalf of
such partnership as his voluntary act and deed and as the voluntary
act and deed of such partnership, pursuant to authority of the board
of directors of said partnership, and that he received a true copy of
the within instrument on behalf of said general partnership.
_________________________
Notary Public
(NOTARY SEAL)
(71)
<PAGE>
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the _____ day of December, 1993, before me, personally came
Frank P. Leslie, to me known, who, being by me duly sworn did depose
and say that he is Assistant Vice President of First Bank National
Association, the national banking association described in and which
executed the above instrument; that he knows the corporate seal of
such corporation; that the seal affixed to said instrument is such
corporate seal; that it was so affixed pursuant to authority of the
Board of Directors of such corporation; and that he signed his name
thereto pursuant to like authority.
_________________________
Notary Public
(NOTARY SEAL)
<PAGE>
(72)
<PAGE>
Exhibit B to
Senior Note Indenture
INDENTURE OF MORTGAGE AND SECURITY AGREEMENT
(Senior Note Mortgage)
TRUMP'S CASTLE ASSOCIATES,
Mortgagor/Debtor
and
TRUMP'S CASTLE FUNDING, INC.,
Mortgagee/Secured Party
Dated as of December 28, 1993
Record and Return to:
Robert L. Nutt, Esq.
Ropes & Gray
One International Place
Boston, Massachusetts 02110-2624
<PAGE>
<PAGE>
TABLE OF CONTENTS
ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF
GENERAL APPLICATION. . . . . . . . . . . . . . . . . . . . . . . . 9
Section 1.1. Definitions. . . . . . . . . . . . . . . . . . 9
Section 1.2. Notices. . . . . . . . . . . . . . . . . . . . 19
Section 1.3. Form and Contents of
Documents Delivered to Mortgagee. . . . . . . . . . 20
Section 1.4. Compliance Certificates and Opinions.. . . . . 21
Section 1.5. Effect of Headings and Table of Contents.. . . 22
Section 1.6. Successors and Assigns; Amendments.. . . . . . 22
Section 1.7. Separability Clause. . . . . . . . . . . . . . 22
Section 1.8. Benefits of Mortgage.. . . . . . . . . . . . . 22
Section 1.9. Governing Law. . . . . . . . . . . . . . . . . 22
Section 1.10. Limitation on Liability. . . . . . . . . . . . 22
Section 1.11. Provisions Required by Senior Note
Indenture. . . . . . . . . . . . . . . . . . . . . . . . 23
Section 1.12. References to Mortgagee
and/or to Trustee; Rights of Trustee. . . . . . . . 23
Section 1.13. Mortgage Subject to Casino Control Act.. . . . 25
Section 1.14. Discharge of Lien. . . . . . . . . . . . . . . 25
Section 1.15. General Application. . . . . . . . . . . . . . 26
Section 1.16. Senior Note Mortgage Deemed to be Security
Agreement. . . . . . . . . . . . . . . . . . . . . . . . 26
Section 1.17. No Duplication of Notices or Payments. . . . . 26
ARTICLE TWO RELEASE; SUBORDINATION . . . . . . . . . . . . . . . . 27
Section 2.1. Possession by Mortgagor. . . . . . . . . . . . 27
Section 2.2. Obsolete Property. . . . . . . . . . . . . . . 27
Section 2.3. F,F&E Financing Agreements.. . . . . . . . . . 28
ARTICLE THREE REMEDIES . . . . . . . . . . . . . . . . . . . . . . 29
Section 3.1. Events of Default. . . . . . . . . . . . . . . 29
Section 3.2. Acceleration of Maturity;
Recision and Annulment. . . . . . . . . . . . . . . 31
Section 3.3. Application of Moneys Received by
Mortgagee. . . . . . . . . . . . . . . . . . . . . . . . 31
Section 3.4. Restoration of Rights and Remedies.. . . . . . 31
Section 3.5. Rights and Remedies Cumulative.. . . . . . . . 31
Section 3.6. Delay or Omission Not Waiver.. . . . . . . . . 32
Section 3.7. Undertaking for Costs. . . . . . . . . . . . . 32
Section 3.8. Waiver of Appraisement and Other Laws. . . . . 32
Section 3.9. Entry. . . . . . . . . . . . . . . . . . . . . 33
Section 3.10. Power of Sale; Suits for Enforcement.. . . . . 33
Section 3.11. Incidents of Sale. . . . . . . . . . . . . . . 34
Section 3.12. Receiver.. . . . . . . . . . . . . . . . . . . 35
Section 3.13. Suits to Protect the Trust Estate. . . . . . . 35
Section 3.14. Management of the Premises.. . . . . . . . . . 36
(i)
<PAGE>
ARTICLE FOUR CONSOLIDATION, MERGER, CONVEYANCE,
TRANSFER OR LEASE. . . . . . . . . . . . . . . . . . . . . . . . . 36
Section 4.1. Consolidation, Merger, Conveyance
or Transfer only on Certain Terms.. . . . . . . . . 36
Section 4.2. Successor Entity Substituted.. . . . . . . . . 36
ARTICLE FIVE COVENANTS AND REPRESENTATIONS OF MORTGAGOR . . . . . 36
Section 5.1. Payment of Principal, Premium and Interest.. . 36
Section 5.2. F,F&E Financing Agreements.. . . . . . . . . . 37
Section 5.3. Limitations on Liens and Transfers.. . . . . . 37
Section 5.4. Environmental. . . . . . . . . . . . . . . . . 38
Section 5.5. Warranty of Leasehold Estate and Title . . . . 42
Section 5.6. After-Acquired Property;
Further Assurances; Recording.. . . . . . . . . . . 43
Section 5.7. Payment of Taxes and Certain Claims;
Maintenance of Properties; Compliance with
Legal Requirements and Insurance Requirements.. . . 45
Section 5.8. Permitted Contests . . . . . . . . . . . . . . 46
Section 5.9. Mechanics' and Other Liens.. . . . . . . . . . 47
Section 5.10. To Insure. . . . . . . . . . . . . . . . . . . 47
Section 5.11. Limitations on Building Demolition,
Alterations, Improvements and New Construction. . . 55
Section 5.12. Leases.. . . . . . . . . . . . . . . . . . . . 57
Section 5.13. Compliance Certificates. . . . . . . . . . . . 59
Section 5.14. To Keep Books; Inspection by Mortgagee . . . . 59
Section 5.15. Advances by Mortgagee. . . . . . . . . . . . . 60
Section 5.16. Waiver of Stay, Extension or Usury Laws. . . . 60
Section 5.17. Eminent Domain.. . . . . . . . . . . . . . . . 60
Section 5.18. Facility Leases. . . . . . . . . . . . . . . . 63
Section 5.19. Superior Mortgage. . . . . . . . . . . . . . . 67
Section 5.20. Indemnification. . . . . . . . . . . . . . . . 69
SCHEDULE 1 OWNED LAND. . . . . . . . . . . . . . . . . . . . . . 1-1
SCHEDULE 2 LEASED LAND . . . . . . . . . . . . . . . . . . . . . 2-1
SCHEDULE 3 EXISTING ENCUMBRANCES . . . . . . . . . . . . . . . . 3-1
SCHEDULE 4 FORM OF NON-DISTURBANCE AND ATTORNMENT AGREEMENT. . . 4-1
(ii)
<PAGE>
<PAGE>
INDENTURE OF MORTGAGE AND SECURITY AGREEMENT
INDENTURE OF MORTGAGE AND SECURITY AGREEMENT ("Senior Note
Mortgage" or "Mortgage"), dated as of December 28, 1993, between
TRUMP'S CASTLE ASSOCIATES, a New Jersey general partnership having an
office at Brigantine Boulevard and Huron Avenue, Atlantic City, New
Jersey 08401 ("Mortgagor"), and TRUMP'S CASTLE FUNDING, INC., a New
Jersey corporation having an office at Brigantine Boulevard and Huron
Avenue, Atlantic City, New Jersey 08401 ("Mortgagee").
Witnesseth:
In consideration of $10.00 in hand paid by Mortgagee to
Mortgagor and for other good and valuable consideration, the receipt
and sufficiency whereof is hereby acknowledged, and in order to
secure (i) the payment of the principal amount (and premium, if any)
of the Senior Partnership Note, in lawful money of the United States,
to be paid in accordance with the provisions thereof (and of all
modifications, extensions, and renewals thereof), all of which
provisions are hereby made an integral part hereof as though set
forth at length herein; (ii) payment of interest (including, without
limitation, interest on all overdue principal and premium, if any)
becoming due under the provisions of the Senior Partnership Note;
(iii) payment by Mortgagor to Mortgagee of all sums expended or
advanced by Mortgagee pursuant to any term or provision of this
Senior Note Mortgage; (iv) performance of each covenant, term,
condition and agreement of Mortgagor herein or in the Senior
Partnership Note contained; (v) all costs and expenses, including,
without limitation, reasonable counsel fees and expenses as provided
in Section 3.7 of this Mortgage, which may arise in respect of the
Senior Partnership Note and this Senior Note Mortgage or of the
obligations secured hereby; and (vi) performance and observance of
all of the provisions herein contained, Mortgagor has executed and
delivered this Senior Note Mortgage and has bargained, sold, aliened,
mortgaged, pledged, released, conveyed and confirmed unto Mortgagee
and its successors hereunder and assigns forever, and does hereby
grant to Mortgagee and its successors a security interest in and to,
all of Mortgagor's right, title and interest in, to and under all of
the following described property and the proceeds thereof:
(1)
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GRANTING CLAUSES
Granting Clause First
All of the property, rights, title, interest, privileges and
franchises particularly described in annexed Schedule 1 (the "Owned
Land"), which Schedule is hereby made a part of, and deemed to be
described in, this Granting Clause as fully as if set forth in this
Granting Clause at length.
Granting Clause Second
[Intentionally omitted]
Granting Clause Third
All of the property, rights, title, interest, privileges and
franchises of Mortgagor as lessee under all Facility Leases
(including, to the extent permissible to the Landlord under the
Marina Lease, the Marina Lease), together with (i) all credits,
deposits, privileges and rights of Mortgagor as lessee under the
Facility Leases, now or at any time existing, (ii) the leaseholds and
the leasehold estates created by the Facility Leases and (iii) all of
the estates, rights, titles, claims or demands whatsoever of
Mortgagor, either in law or in equity, in possession or in
expectancy, of, in and to the Facility Leases and the Leased
Facilities (including, but not limited to, the Leased Land
particularly described in annexed Schedule 2), together with (x) any
and all other, further or additional title, estates, interests or
rights which may at any time be acquired by Mortgagor in or to the
Leased Facilities or any part thereof, and Mortgagor expressly agrees
that if Mortgagor shall, at any time prior to payment in full of all
indebtedness secured hereby, acquire fee simple title or any other
greater estate to the Leased Facilities, the lien of this Mortgage,
subject to Permitted Encumbrances, shall attach, extend to, cover and
be a lien upon such fee simple title or other greater estate and
thereupon the lien of this Mortgage, subject to Permitted
Encumbrances, shall be prior to the lien of any mortgage or deed of
trust placed on such acquired title, estate, interest or right
subsequent to the date of this Mortgage and (y) any right to
possession or statutory term of years derived from, or incident to,
the Facility Leases pursuant to Section 365(h) of the Code or any
Comparable Provision.
(2)
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Granting Clause Fourth
All of the rents, issues, profits, revenues, accounts, accounts
receivable and other income and proceeds (including, without
limitation, all rents, fees, charges, accounts, issues, profits,
revenues and payments for or from (a) the use or occupancy of the
rooms and other public facilities in the Hotel and (b) the operation
of the Casino) of the property subjected or required to be subjected
to the lien of this Mortgage, including, without limitation, the
property described in Granting Clauses First, Third and Seventh (said
property described in Granting Clauses First, Third and Seventh and
similar other property subjected or required to be subjected to the
lien of this Mortgage, together with all such rents, issues, profits,
revenues, accounts, accounts receivable and other income and proceeds
therefrom is hereinafter collectively referred to as the "Premises")
and all of the estate, right, title and interest of every nature
whatsoever of Mortgagor in and to the same and every part thereof.
Granting Clause Fifth
All of the rights of Mortgagor as lessor under the Leases in
effect on the date of execution of this Mortgage or hereafter entered
into by Mortgagor, including modifications, extensions and renewals
of all of the same, and the immediate and continuing right as
security after the occurrence, and during the continuance, of an
Event of Default, to (a) make claim for, collect, receive and receipt
for (and to apply the same as provided herein) any and all rents,
fees, charges, income, revenues, issues, profits, security and other
sums of money payable or receivable thereunder or pursuant thereto,
and all proceeds thereof, whether payable as rent, insurance
proceeds, condemnation awards, security or otherwise and whether
payable prior to or subsequent to the Stated Maturity of the Senior
Partnership Note, (b) receive and give notices and consents
thereunder, (c) bring actions and proceedings thereunder or for the
enforcement thereof, (d) make waivers and agreements thereunder or
with respect thereto, (e) take such action upon the happening of a
default under any Lease, including the commencement, conduct and
consummation of any proceedings at law or in equity as shall be
permitted by any provision of any Lease, and (f) do any and all
things which Mortgagor or any lessor is or may become entitled to do
under the Leases; provided that, except as may be set forth to the
contrary herein, the assignment made by this Granting Clause Fourth
shall not impair or diminish any right, privilege or obligation of
Mortgagor under the Leases nor shall any such obligation be imposed
upon Mortgagee.
(3)
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Granting Clause Sixth
Without limiting the generality of the provisions of Granting
Clause Fourth, all of Mortgagor's rights, title, interest, privileges
and franchises in and to the following, now owned or hereafter
acquired by Mortgagor, to the extent of Mortgagor's interest therein
and thereto and to the extent assignable (collectively, "Operating
Assets"):
(a) bookings for the use of guest rooms, banquet facilities,
meeting rooms at the Casino Hotel or at any other improvements now or
hereafter located on any of the Land;
(b) all contracts respecting utility services for, and the
maintenance, operations, or equipping of, the Premises, including
guaranties and warranties relating thereto;
(c) the Permits;
(d) all contract rights, leases (whether with respect to real
property, personal property or both real and personal property),
concessions, trademarks, trade names, service marks, logos,
copyrights, warranties and other items of intangible personal
property, and any and all good will associated with the same,
relating to the ownership or operation of the Casino Hotel or of any
other improvements now or hereafter located on any of the Land,
including, without limitation, (1) employment contracts with officers
and other employees of Mortgagee, (2) telephone and other
communication numbers, (3) all software licensing agreements as are
required to operate computer software systems at the Casino Hotel or
at any other improvements now or hereafter located on any of the Land
and books and records relating to the software programs and (4)
lessee's interest under leases of Tangible Personal Property;
(e) all contracts, purchase orders, requisitions and agreements
entered into by or on behalf of Mortgagor or which have been assigned
to Mortgagor, for the design, construction, and furnishing of the
Casino Hotel or of any other improvements now or hereafter located on
any of the Land, including, without limitation, architect's
agreements, engineering agreements, construction contracts,
consulting agreements and agreements or purchase orders for all items
of Tangible Personal Property and payment and performance bonds in
favor of Mortgagor in connection with the Trust Estate (and all
warranties and guarantees thereunder and warranties and guarantees of
any subcontractor and bond issued in connection with the work to be
performed by any subcontractor);
(f) the following personal property (the "Tangible Personal
Property") now or hereafter acquired by Mortgagor (directly or by
(4)
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way of lease) which is located on, or to be located on, or which are
in use or held in reserve storage for future use in connection with
the gaming or other operations of, the Casino Hotel or of any other
improvements now or hereafter located on any of the Land, which is on
hand or on order whether stored on-site or off-site:
(i) all furniture, furnishings, equipment, machinery,
lighting, apparatus (both interior and exterior), appliances,
fixtures and fittings and other articles of tangible personal
property;
(ii) all slot machines, electronic gaming devices, crap
tables, blackjack tables, poker tables, roulette tables,
baccarat tables, big six wheels and other gaming tables, and all
furnishings and equipment to be used in connection with the
operation thereof;
(iii) all cards, dice, gaming chips and plaques, tokens,
chip racks, dealing shoes, dice cups, dice sticks, layouts,
paddles, roulette balls and other consumable supplies and items;
(iv) all china, glassware, linens, kitchen utensils,
silverware and uniforms;
(v) all consumables and operating supplies of every kind
and nature, including, without limitation, accounting supplies,
guest supplies, forms, printing, stationery, food and beverage
stock, bar supplies, laundry supplies and brochures to existing
purchase orders;
(vi) all upholstery material, carpets and rugs, beds,
bureaus, chiffonniers, chairs, chests, desks, bookcases, tables,
curtains, hangings, pictures, divans, couches, ornaments, bars,
bar fixtures, safes, stoves, ranges, refrigerators, radios,
televisions, clocks; electrical equipment, lamps, mirrors,
heating and lighting fixtures and equipment, ice machines, air
conditioning machines, fire prevention and extinguishing
apparatus, laundry machines, and all similar and related
articles used in bedrooms, sitting rooms, bathrooms, boudoirs,
halls, closets, kitchens, dining rooms, offices, lobbies,
basements and cellars in the Casino Hotel and in any other
improvements now or hereafter located on any of the Land;
(vii) all sets and scenery, costumes, props and other
items of tangible personal property on hand or on order for use
in the production of shows in any showroom, convention space,
exhibition hall, or sports and entertainment arena of the Casino
Hotel or in any other improvements now or hereafter located on
any of the Land; and
(5)
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(viii) all cars, limousines, vans, buses, trucks and other
vehicles owned or leased by Mortgagor for use in connection with
the operation of the Premises, together with all equipment,
parts and supplies used to service, repair, maintain and equip
the foregoing;
(g) all drawings, designs, plans and specifications prepared by
architects, engineers, interior designers, landscape designers and
any other professionals or consultants for the design, development,
construction and/or improvement of the Casino Hotel, or for any other
development of the Premises, as amended from time to time;
(h) any administrative and judicial proceedings initiated by
Mortgagor, or in which Mortgagor has intervened, concerning the
Premises, and agreements, if any, which are the subject matter of
such proceedings;
(i) any customer lists utilized by Mortgagor including lists of
transient guests and restaurant and bar patrons and "high roller"
lists; and
(j) all of the good will in connection with the assets listed
in this Granting Clause Sixth and in connection with the operation of
the Premises.
Except as may be set forth to the contrary herein, the
assignment made by this Granting Clause Sixth shall not impair or
diminish any right, privilege or obligation of Mortgagor with respect
to the Operating Assets, nor shall any such obligation be imposed on
Mortgagee.
Granting Clause Seventh
(a) All of Mortgagor's rights, title, interest, privileges and
franchises, if any, in and to all buildings, structures (surface and
subsurface), and other improvements of every kind and description,
including, without limitation, all pedestrian bridges, entrance-ways,
parking lots, plazas, curb-cuts, walkways, driveways and landscaping
and such fixtures as constitute real property, now or hereafter
erected or placed on the Land or on any other land or any interest
therein hereafter acquired by Mortgagor and all of Mortgagor's
rights, title, interest, privileges and franchises in and to all
fixtures and articles of personal property now or hereafter attached
to or contained in and used in connection with such buildings and
improvements, including, without limitation, all apparatus,
furniture, furnishings, lighting equipment, electronic billboards,
machinery, motors, elevators, fittings, radiators, cooking ranges,
ice boxes, ice machines, printing presses,
(6)
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mirrors, bars, mechanical refrigerators, furnaces, coal and oil
burning apparatus, wall cabinets, machinery, generators, partitions,
steam and hot water boilers, lighting and power plants, pipes,
plumbing, radiators, sinks, bath tubs, water closets, gas and
electrical fixtures, awnings, shades, screens, blinds, dishwashers,
freezers, vacuum cleaning systems, office equipment and other
furnishings, and all plumbing, heating, lighting, cooking, laundry,
ventilating, incinerating, air-conditioning and sprinkler equipment
or other fire prevention or extinguishing apparatus and material, and
fixtures and appurtenances thereto; and all renewals or replacements
thereof or articles in substitution therefor, whether or not the same
are or shall be attached to the Land, any other land or any interest
therein hereafter acquired by Mortgagor or to any such buildings and
improvements thereon, in any manner.
(b) All of Mortgagor's rights, title, interest, privileges and
franchises in and to all other property, real, personal or mixed
(other than Excepted Property), of every kind and description and
wheresoever situate, now owned or which may be hereafter acquired by
Mortgagor, it being the intention hereof that all property,
interests, rights, privileges and franchises now owned by Mortgagor
or acquired by Mortgagor after the date hereof (other than Excepted
Property) shall be as fully embraced within and subjected to the lien
hereof as if such property were specifically described herein.
* * *
TOGETHER with all of Mortgagor's right, title and interest in
and to any and all mineral and water rights and any title or
reversion, in and to the beds of the ways, streets, avenues and
alleys adjoining the Premises to the center line thereof and in and
to all strips, gaps and gores adjoining the Premises on all sides
thereof; and
TOGETHER with any and all of Mortgagor's right, title and
interest in and to the tenements, hereditaments, easements,
appurtenances, passages, waters, water courses, riparian rights,
other rights, liberties and privileges thereof or in any way now or
hereafter appertaining to the Premises, including, without
limitation, any other claim at law or in equity as well as any
after-acquired title, franchise or license and the reversion and
reversions and remainder and remainders thereof; and
TOGETHER with any and all awards and other compensation
heretofore or hereafter to be made to the present and all subsequent
owners of the Trust Estate for any taking by eminent domain, either
permanent or temporary, of all or any part of the Trust Estate or any
easement or appurtenances thereof, including severance and
consequential damage and change in grade of
(7)
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streets, all in accordance with and subject to the provisions of the
Superior Instrument Requirements and Section 5.17; and
TOGETHER with any and all proceeds of any unearned premiums on
any insurance policies described in Section 5.10, and the right to
receive and apply the proceeds of any insurance, judgments, or
settlements made in lieu thereof, for damage to the Trust Estate or
otherwise, all in accordance with and subject to the provisions of
Section 5.10 and the Superior Instrument Requirements; and
TOGETHER with all proceeds of every kind and nature, and all
products of every kind and nature, of any of the foregoing property,
rights, title, interests, privileges, franchises and other assets
described in Granting Clauses First through Seventh or in any of the
other clauses thereafter.
The foregoing shall include, whether or not specifically
identified in one or more instances, all such property, rights,
title, interests, privileges, franchises and other assets now owned
and/or hereafter existing.
EXCLUDING, with respect to all of the hereinabove granted
property, rights, title, interest, privileges and franchises
described in Granting Clauses First through Seventh or in the six
immediately preceding paragraphs, all Excepted Property now or
hereafter existing.
TO HAVE AND TO HOLD all of said Premises, Leases, Facility
Leases, Operating Assets, properties, options, credits, deposits,
rights, privileges and franchises of every kind and description,
real, personal or mixed, hereby and hereafter granted, bargained,
sold, aliened, assigned, transferred, hypothecated, pledged,
released, conveyed, mortgaged, or confirmed as aforesaid, or
intended, agreed or covenanted so to be, together with all the
appurtenances thereto appertaining (said Premises, Leases, Facility
Leases, Operating Assets, properties, options, credits, deposits,
rights, privileges and franchises, other than Excepted Property now
or hereafter existing, being herein collectively called the "Trust
Estate") unto Mortgagee and its successors and assigns forever.
SUBJECT, HOWEVER, on the date hereof, to the Midlantic Mortgage
and Existing Encumbrances (including the Superior Mortgages) and,
after the date hereof, to Permitted Encumbrances (other than
Restricted Encumbrances).
PROVIDED, FURTHER, that the lien of this Senior Note Mortgage
upon the Trust Estate shall rank pari passu with the lien of the
Senior Guarantee Mortgage.
(8)
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BUT IN TRUST, NEVERTHELESS, for the ratable benefit and security
of the Holders.
UPON CONDITION that, until the happening of an Event of Default,
Mortgagor shall be permitted to possess and use the Trust Estate, and
to receive and use the rents, issues, profits, revenues and other
income of the Trust Estate.
AND IT IS HEREBY COVENANTED AND DECLARED that the Trust Estate
is to be held and applied by Mortgagee, subject to the further
covenants, conditions and trusts hereinafter set forth, and Mortgagor
does hereby covenant and agree to and with Mortgagee, for the ratable
benefit of the Holders, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF
GENERAL APPLICATION
Section 1.1. Definitions.
For all purposes of this Senior Note Mortgage, except as
otherwise expressly provided or unless the context otherwise
requires:
(a) the terms defined in this Article One have the meanings
assigned to them in this Article One and include the plural as well
as the singular;
(b) all accounting terms not otherwise defined herein have the
meanings assigned to them, and all computations herein provided for
shall be made, in accordance with generally accepted accounting
principles in effect on the date hereof consistently applied; and
(c) the words "herein," "hereof" and "hereunder" and other
words of similar import refer to this Mortgage as a whole and not to
any particular Article, Section or other subdivision.
"Affiliate" has the meaning set forth in Section 1.1 of the
Senior Note Indenture.
"Alterations" has the meaning set forth in Section 5.11.
"Appraised Value" means the fair market value of the Casino
Hotel, and of all other property now or hereafter owned or leased by
Mortgagor and subject to the lien of this Mortgage, as determined by
an Independent Appraiser on the basis of an appraisal in conformity
with the criteria set forth at 12 C.F.R. ss 564.4 or such similar
published policy or regulation as from time to time governs real
estate related transactions by
(9)
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institutions regulated by the Office of Thrift Supervision; provided,
that the value of the Casino Hotel and such other property shall not
include the value of (i) any furniture, fixtures and equipment
therein to the extent of the Outstanding Amount of any Indebtedness
secured by any F,F&E Financing Agreements with respect thereto and
(ii) any Excepted Property.
"Appraiser" means a "state certified appraiser" as defined in 12
C.F.R. ss 564.2(i) who is (i) of recognized standing among appraisers
of properties similar to the Casino Hotel and (ii) experienced in the
appraisals of properties of a similar size and scope to that of the
Casino Hotel, selected by Mortgagor.
"Architect" means an Independent Person selected by Mortgagor
and licensed as an architect in the State of New Jersey.
"Casino" means that portion of the Casino Hotel used for gaming
and related activities.
"Casino Hotel" means the casino and hotel complex currently
known as the "Trump's Castle Casino Resort" in Atlantic City, New
Jersey, and ancillary structures and facilities located on the
Premises (other than the property covered by the Marina Lease) and
all furniture, fixtures and equipment at any time contained therein
in each case owned by or leased to Mortgagor.
"Casualty" means any act or occurrence of any kind or nature
which results in damage, loss or destruction to any buildings or
improvements on the Premises and/or Tangible Personal Property.
"Certificate of Appraised Value" means the certificate of an
Independent Appraiser stating the Appraised Value.
"Code" means the Federal Bankruptcy Code, Title 11 of the United
States Code, as amended.
"Company" means Trump's Castle Funding, Inc., a corporation
incorporated under the laws of the State of New Jersey, or any other
obligor on the Senior Secured Notes (other than Mortgagor).
"Comparable Provision" has the meaning set forth in
Section 5.18.
"Default" means any event which is, or after notice or lapse of
time or both would be, an Event of Default. Without limiting the
generality of the previous provisions of this definition, the term
"Default" shall include the occurrence of an event as to which a
notice of default has been given to Mortgagor under any Facility
Lease by a Lessor or under the Superior Mortgage by the holder
thereof, which has not yet been cured.
(10)
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"Depositary" means an Independent entity to which insurance
proceeds or condemnation awards are paid to be held in trust for
Restoration pursuant to the provisions of a Superior Mortgage.
"Event of Default" has the meaning set forth in Section 3.1.
"Excepted Property" means:
(1) the personal property owned by lessees under Leases and the
personal property of any Hotel guests;
(2) trade names, intellectual property rights and other rights
and interests in and to the use of the terms "Trump's Castle,"
"Trump," "Trump's Castle Casino Resort", "Donald J. Trump," "Donald
Trump" or related variations thereof;
(3) any property deemed to be Excepted Property pursuant to the
provisions of Section 2.3;
(4) counterchecks, cash and any other property to the extent
that the granting of a security interest therein is prohibited by the
New Jersey Casino Control Act and the regulations promulgated
thereunder; and
(5) any property acquired pursuant to secured purchase-money
indebtedness permitted under clause "i" of the definition of
"Permitted Indebtedness" in the Senior Note Indenture.
"Existing Encumbrances" means the matters set forth in Schedule
3 hereto, including, but not limited to, the instruments securing,
evidencing, or governing the Midlantic Term Loan.
"Facility Leases" means, collectively:
(1) the Marina Lease;
(2) any leases other than Capital Lease Obligations and the
Marina Lease where Mortgagor is tenant or sub-tenant; provided,
however, that the aggregate fixed rental payments paid or accrued for
any period of four consecutive fiscal quarters commencing after the
date hereof under all such leases (including payments required to be
made by the lessee in respect of taxes and insurance, whether or not
denominated as rent), shall not exceed for such period (a) $2,000,000
or (b) $7,500,000 following the time at which the Partnership shall
have achieved EBITDA for any period of four consecutive quarters in
an amount not less than $45.0 million; provided, further, that the
Mortgagor may designate certain such leases which are not material to
the operations of the Casino Hotel and which have aggregate fixed
rental payments (including payments required to be made by the lessee
in respect of taxes and insurance, whether or not denominated as
rent) not exceeding an aggregate of $300,000 per
(11)
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year to be excluded from the leases covered by this clause (2); and
(3) any and all modifications, extensions and renewals of the
leases described in clauses (1) and (2) above, to the extent the same
are permitted under Section 5.18.
"F,F&E Financing Agreement" has the meaning set forth in Section
1.1 of the Senior Note Indenture.
"Full Insurable Value" means the actual replacement cost
(excluding the costs of foundation, footing, excavation, paving,
landscaping and other similar, noninsurable improvements) of the
insurable properties in question.
"Holder" has the meaning set forth in Section 1.1 of the Senior
Note Indenture.
"Hotel" means that portion of the Casino Hotel not included
within the Casino.
"Impositions" has the meaning set forth in Section 5.7.
"Indebtedness" has the meaning set forth in Section 1.1 of the
Senior Note Indenture.
"Independent" when used with respect to any specified Person
means such a Person who (i) is in fact independent, (ii) does not
have any direct financial interest or any material indirect financial
interest in Mortgagor or in any other obligor upon the Senior
Partnership Note or in any Affiliate of Mortgagor or of such other
obligor and (iii) is not connected with Mortgagor or such other
obligor or any Affiliate of Mortgagor or such other obligor as an
officer, employee,, promoter, underwriter, trustee, partner, director
or person performing similar functions. Whenever it is herein
provided that any Independent Person's opinion or certificate shall
be furnished to Mortgagee, such Person shall be appointed by a
Mortgagor order and such opinion or certificate shall state that the
signer has read this definition and that the signer is Independent
within the meaning thereof. A Person who is performing or who has
performed services as an independent contractor to any specified
Person shall not be considered not Independent merely by reason of
the fact that such Person is performing or has performed such
services.
"Insurance Amount" has the meaning set forth in Section
5.10(a)(i).
"Insurance Requirements" means all terms of any insurance policy
covering or applicable to the Trust Estate or any part thereof, all
requirements of the issuer of any such policy, and
(12)
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all orders, rules, regulations and other requirements of the National
Board of Fire Underwriters (or any other body exercising similar
functions) applicable to or affecting the Trust Estate or any part
thereof or any use or condition of the Trust Estate or any part
thereof.
"Insurance Trustee" means the Trustee or, if the Trustee so
elects, any bank, trust company or insurance company with a net worth
in excess of $100,000,000, designated by the Trustee.
"Insurer" means (i) an insurance company or companies
selected by Mortgagor authorized to issue insurance in the State of
New Jersey with an A.M. Best rating level of A minus or better and an
A.M. Best financial size category of VIII or better or (ii) Lloyds of
London so long as its financial capacity is not such that prudent
owners of first-class casino and hotel complexes in Atlantic City,
New Jersey would be unwilling to accept Lloyds of London; provided,
that with respect to the insurance required to be maintained pursuant
to Section 5.10(a)(i), up to 1.0% of the total amount of such
insurance in excess of the first $10,000,000 thereof may be
maintained with an insurance company or companies not meeting the
foregoing A.M. Best rating level and/or A.M. Best financial size
categories; and provided, further, that Mortgagor shall in all events
use commercially reasonable efforts to obtain insurance issued by
insurance companies having an A.M. Best rating level of better than A
minus.
"Land" means, collectively, the Owned Land and the Leased Land.
"Lease" means each lease or sublease (made by Mortgagor, as
lessor or sublessor, as the case may be) of any space in any building
or buildings, an interest in which building or buildings constitutes
a part of the Trust Estate, including every agreement relating
thereto or entered into in connection therewith and every guarantee
of the performance and observance of the covenants, conditions and
agreements to be performed by the lessee or sublessee under any such
lease or sublease. For purposes hereof, the term "Lease" shall
include any license agreement, concession agreement or other
occupancy agreement. Notwithstanding the foregoing, the term "Lease"
shall not include any transient room rentals.
"Leased Facilities" means, collectively, the Leased Land and any
buildings and improvements now or hereafter located thereon.
"Leased Land" means, collectively, the Marina Lease and any
other land that is now or hereafter subject to a Facility Lease.
"Legal Requirements" means all laws, statutes, codes, acts,
ordinances, orders, judgments, decrees, injunctions, rules,
(13)
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regulations, permits, licenses, authorizations, directions and
requirements (including, without limitation, the New Jersey Casino
Control Act, the New Jersey Environment Cleanup Responsibility Act
and the New Jersey Spill Compensation and Control Act of 1976) of all
governments, departments, commissions, boards, courts, authorities,
agencies, officials and officers, of governments, federal, state and
municipal (including, without limitation, the New Jersey Department
of Environmental Protection and Energy, the Atlantic City Bureau of
Investigations, the Division of Gaming Enforcement of the State of
New Jersey, and the Casino Control Commission of the State of New
Jersey), foreseen or unforeseen, ordinary or extraordinary, which now
are or at any time hereafter become applicable to the Trust Estate or
any part thereof, or any of the adjoining sidewalks, or any use or
condition of the Trust Estate or any part thereof, including, without
limitation, the use of the Casino Hotel as a gaming or gambling
facility.
"Lessors" means the lessors under the Facility Leases.
"Marina Lease" means the lease agreement made September 1, 1990
between the State of New Jersey, as Landlord, and Mortgagor, as
tenant, respecting property known as the Senator Frank S. Farley
State Marina, Atlantic City, New Jersey, being designated as a
portion of Block B-4, Lot 11 on the tax map of the City of Atlantic
City, Atlantic County, New Jersey, as more particularly described on
Schedule A appended hereto and made a part hereof, together with all
amendments, restatements, extensions and renewals of said lease
agreement.
"Maturity" when used with respect to any Indebtedness means the
date on which the principal (or any portion thereof) of such
Indebtedness becomes due and payable as therein or herein provided,
whether at the Stated Maturity, upon acceleration, optional
redemption, required repurchase, scheduled principal payment or
otherwise.
"Midlantic Mortgage" means the Amended and Restated Indenture
of Mortgage, dated as of May 29, 1992, from the Mortgagor to
Midlantic National Bank, the Amended and Restated Assignment of
Leases and Rents, dated as of May 29, 1992, between the same parties,
and the Amended and Restated Assignment of Operating Assets, dated as
of May 29, 1992, between the same parties and all amendments,
restatements, extensions and renewals thereof.
"Midlantic Term Loan" has the meaning set forth in Section 1.1
of the Mortgage Note Indenture.
"Mortgage Documents" has the meaning set forth in Section 1.1 of
the Mortgage Note Indenture, except that the term
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"Mortgage Documents" shall not include the Pledge Agreement (as
defined in said Section 1.1).
"Mortgage Note Indenture" means that certain indenture of even
date herewith among the Company, as issuer, the Mortgagor, as
guarantor, and First Bank National Association, as trustee, as it may
be amended from time to time, relating to the Company's Mortgage
Notes.
"Mortgage Notes" means the 11-3/4% Mortgage Notes due 2003
issued by the Company pursuant to the Mortgage Note Indenture.
"Mortgagee" has the meaning set forth in Section 1.12.
"Mortgagor" means the Person named as "Mortgagor" in the first
paragraph of this instrument until a successor entity shall have
become such pursuant to the applicable provisions of this Mortgage,
and thereafter, except to the extent otherwise contemplated by
Section 4.2, "Mortgagor" shall mean such successor entity
exclusively.
"Mortgagor Order" and "Mortgagor Request" mean, respectively, a
written order or request signed with a Mortgagor Signature and
delivered to Mortgagee.
"Mortgagor Signature" means the signature of the President or a
Vice President or a general partner of Mortgagor.
"Mortgagor's Certificate" means a certificate signed with a
Mortgagor Signature and delivered to Mortgagee.
"Notices" has the meaning set forth in Section 1.2.
"Operating Assets" has the meaning set forth in Granting Clause
Sixth.
"Opinion of Counsel" means a written opinion of counsel who may
(except as otherwise expressly provided in this Mortgage) be an
employee of Mortgagor or of an Affiliate of Mortgagor.
"Original Policy" means the ALTA Loan Policies of
Title Insurance issued by First American Title Insurance Company,
Chicago Title Insurance Company and Commonwealth Land Title Insurance
Company, pursuant to Title Commitment. No. F237584L, dated the date
hereof.
"Outstanding Amount" has the meaning set forth in
Section 1.1 of the Senior Note Indenture.
"Owned Land" has the meaning set forth in Granting Clause First.
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"Permits" means all licenses, franchises, authorizations,
statements of compliance, certificates of operation, certificates of
occupancy and permits required for the lawful ownership, occupancy,
operation and use of all or a material portion of the Premises
whether held by Mortgagor or any other Person (which may be temporary
or permanent) (including, without limitation, those required for the
use of the Casino Hotel as a licensed casino facility), in accordance
with all applicable Legal Requirements.
"Permitted Encumbrances" means:
(1) liens for taxes, assessments, or governmental charges not
yet due and payable, or if due and payable not
delinquent, to the extent that any fine, penalty, interest or cost
may be added for nonpayment thereof;
(2) Existing Encumbrances (including the Midlantic Mortgage);
(3) F,F&E Financing Agreements permitted by the Senior Note
Indenture;
(4) the liens of the Trustee provided for in Section 6.6 of the
Senior Note Indenture and of the trustees under the corresponding
sections of the Mortgage Note Indenture and the PIK Note Indenture;
(5) any lien or encumbrance which, under the provisions of
Section 5.7, constitutes a Permitted Encumbrance;
(6) Restricted Encumbrances;
(7) Working Capital Facility Mortgage;
(8) the Liens of the Senior Note Mortgage Documents (as defined
in the Senior Notes Indenture) and the Mortgage Documents, and any
rights granted as provided therein;
(9) any lien or encumbrance permitted under Section 5.3 of this
Mortgage;
(10) any lien or encumbrance securing purchase money
indebtedness permitted by the Senior Note Indenture;
(11) modifications, refinancings, extension, renewals or
replacements, in whole or in part, of the liens described in clauses
(2) through (10) of this definition to the extent permitted by
Section 5.19 hereof and the Senior Note Indenture; and
(12) any Facility Lease now existing or hereafter entered into.
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"Person" means any individual, corporation, limited or general
partnership, joint venture, association, joint stock company, trust,
unincorporated organization or any other entity or government or any
agency or political subdivision thereof.
"PIK Note Indenture" means that certain indenture of even date
herewith among the Company, as issuer, the Mortgagor, as guarantor,
and First Bank National Association, as trustee, as it may be amended
from time to time, relating to the Company's PIK Notes.
"PIK Notes" means the Company's 13 7/8% Pay-in-Kind Notes due
2005.
"Premises" has the meaning set forth in Granting Clause Fourth.
"Restoration" has the meaning set forth in Section 5.10(e)(iii).
"Restricted Encumbrances" means any Leases permitted by and made
in accordance with Section 5.12 of this Mortgage.
"Securities Act" has the meaning set forth in
Section 1.1 of the Senior Note Indenture.
"Senior Assignment Agreement" means the Senior Assignment
Agreement of even date herewith made by Trump's Castle Funding, Inc.
to the Trustee and acknowledged by Mortgagor, providing for the
assignment to the Trustee of the Senior Partnership Note and this
Senior Note Mortgage.
"Senior Guarantee" means the guarantee by Mortgagor of the
Company's Indenture Obligations (as defined in the Senior Indenture)
pursuant to Article Fourteen of the Senior Indenture.
"Senior Guarantee Mortgage" means the Indenture of Mortgage and
Security Agreement of even date herewith between the Trustee, as
mortgagee, and Mortgagor, as mortgagor, securing the Senior Guarantee
and evidencing a lien pari passu with this Mortgage.
"Senior Indebtedness" means Indebtedness evidenced by the
Midlantic Term Loan, the Senior Partnership Note, the Senior
Guarantee and the Working Capital Facility and any amendments,
extensions, renewals, replacements or restatements of any of the
foregoing to the extent permitted by the Senior Note Indenture.
"Senior Note Indenture" means that certain indenture of even
date herewith between the Mortgagee, as issuer, the Mortgagor, as
guarantor, and First Bank National Association, as trustee, relating
to the Senior Notes.
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"Senior Note Mortgage" means this Indenture of Mortgage and
Security Agreement, which evidences a lien pari passu with the Senior
Guarantee Mortgage.
"Senior Notes" means the 11.5% Senior Secured Notes due 2000
issued by the Mortgagee under the Senior Note Indenture.
"Senior Partnership Note" means that certain promissory note of
even date herewith in the original principal amount of $27,000,000
made by the Mortgagor in favor of the Mortgagee, a copy of which is
attached to the Senior Note Indenture, and any amendments,
extensions, renewals, replacements or restatements thereof.
"Settlement Costs" has the meaning set forth in Section 5.17.
"Stated Maturity" when used with respect to any Indebtedness,
means the date specified in such Indebtedness as the fixed date on
which the principal of such Indebtedness is due and payable.
"Superior Instrument Requirements" means the applicable terms,
conditions and provisions of any documentation which constitutes,
evidences, secures or governs any Senior Indebtedness, together with
the terms and provisions of the Marina Lease.
"Superior Mortgage" means the Midlantic Mortgage and any
modification, extension, renewal or restatement thereof which
complies with the provisions of Section 5.19 hereof and with the
Senior Note Indenture.
"Taking" means the acquisition or condemnation by eminent domain
of the whole or any part of the Premises, by a competent authority,
for any public or quasi-public use or purpose.
"Tangible Personal Property" has the meaning set forth
in subclause (f) of Granting Clause Sixth.
"Trust Estate" has the meaning stated in the habendum to the
Granting Clauses.
"Trust Indenture Act" has the meaning set forth in Section 1.1
of the Trust Indenture.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of the Senior Note Indenture and any successor thereto.
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"Uniform Commercial Code" means the New Jersey Uniform
Commercial Code N.J.S.A. 12A:1-101, et seq.
"Working Capital Facility" has the meaning set forth in Section
1.1 of the Senior Note Indenture.
"Working Capital Facility Mortgage" means any mortgage or other
security instrument or agreement which secures a Working Capital
Facility and which evidences a lien pari passu with the lien of the
Senior Note Mortgage.
Section 1.2. Notices.
(a) Any request, demand, authorization, direction, notice
(including, without limitation, a notice of default), consent, waiver
or other document provided or permitted by this Mortgage to be made
upon, given or furnished to, or filed with, Mortgagor, Mortgagee or
the Trustee (collectively, "Notices") shall be in writing and shall
be deemed given either (i) when delivered by hand (including by
overnight courier) or (ii) two days after sending by registered or
certified mail, postage prepaid, addressed as follows:
To Mortgagor:
Trump's Castle Associates
Trump's Castle Casino Resort
Brigantine Boulevard and Huron Avenue
Atlantic City, New Jersey 08401
Attn: Chief Financial Officer
and
Willkie Farr & Gallagher
One Citicorp Center
153 East 53rd Street
New York, New York 10022
Attn: Thomas M. Cerabino, Esq.
To Mortgagee:
Trump's Castle Funding, Inc.
Trump's Castle Casino Resort
Brigantine Boulevard and Huron Avenue
Atlantic City, New Jersey 08401
Attn: Chief Financial Officer
and
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Willkie Farr & Gallagher
One Citicorp Center
153 East 53rd Street
New York, New York 10022
Attn: Thomas M. Cerabino, Esq.
To the Trustee:
First Bank National Association
c/o First Trust National Association
180 East Fifth Street
St. Paul, Minnesota 55101
Attn: Corporate Trust Department
(b) By Notice to Mortgagor, Mortgagee and the Trustee, any
party may designate additional or substitute addresses for Notices
which, notwithstanding Subsection (a) above, shall be deemed given
when received. So long as the Assignment Agreement is in effect, all
Notices to and from Mortgagee shall be given solely to and by the
Trustee.
Section 1.3. Form and Contents of
Documents Delivered to Mortgagee.
Whenever several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary
that all such matters be certified by, or covered by the opinion of,
only one such Person, or that they be so certified or covered by only
one document, but one such Person may certify or give an opinion with
respect to some matters and one or more other such Persons as to
other such matters in one or several documents.
Any certificate or opinion of a general partner of Mortgagor may
be based, insofar as it relates to legal matters, upon a certificate
or opinion of, or representations by, counsel, unless such general
partner knows that the certificate or opinion or representations with
respect to the matters upon which his certificate or opinion is based
are erroneous. Any Opinion of Counsel may be based, insofar as it
relates to factual matters, upon a certificate or opinion of, or
representations by, a general partner of Mortgagor stating that the
information with respect to such factual matters is in the possession
of Mortgagor, unless such counsel knows that the certificate or
opinion or representations with respect to such matters are
erroneous. If appropriate to the matter being opined upon and to the
extent not prohibited by the Senior Note Indenture Act, conclusions
stated in any Opinion of Counsel may be subject to rights of
creditors and the availability of equitable remedies.
Whenever any Person is required to make, give or execute two or
more applications, requests, consents, certificates,
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statements, opinions or other instruments under this Mortgage, they
may, but need not, be consolidated to form one instrument.
Whenever in this Mortgage, in connection with any application or
certificate or report to Mortgagee, it is provided that Mortgagor
shall deliver any document as a condition of the granting of such
application, or as evidence of Mortgagor's compliance with any term
hereof, it is intended that the truth and accuracy, at the time of
the granting of such application or at the effective date of such
certificate or report (as the case may be), of the facts and opinions
stated in such document shall in such case be conditions precedent to
the right of Mortgagor to have such application granted or to the
sufficiency of such certificate or report.
Every application, certificate, report, affidavit, opinion,
consent, statement or other instrument required to be delivered to
Mortgagee under this Senior Note Mortgage shall be in writing and
shall be prepared and delivered without cost or expense to Mortgagee.
Section 1.4. Compliance Certificates and Opinions.
Upon any application or request by Mortgagor to Mortgagee to
take any action under any provision of this Senior Note Mortgage,
Mortgagor shall furnish to Mortgagee a Mortgagor's Certificate
stating that all conditions precedent, if any, provided for in this
Senior Note Mortgage relating to the proposed action have been
complied with and an Opinion of Counsel stating that in the opinion
of such counsel all such conditions precedent, if any, have been
complied with, except that in the case of any such application or
request as to which the furnishing of such documents is specifically
required by any provision of this Senior Note Mortgage relating to
such particular application or request, no additional certificate or
opinion need be furnished. Every certificate or opinion with respect
to compliance with a condition or covenant provided for in this
Senior Note Mortgage shall include:
(a) a statement that each individual signing such certificate
or opinion has read such condition or covenant and the definitions
herein relating thereto;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(c) a statement that, in the opinion of each such individual,
he has made such examination or investigation as is necessary to
enable him to express an informed opinion as to whether or not such
condition or covenant has been complied with; and
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(d) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 1.5. Effect of Headings and Table of Contents.
The Article and Section headings herein and in the Table of
Contents are for convenience only and shall not affect the
construction hereof.
Section 1.6. Successors and Assigns; Amendments.
(a) Subject to the provisions of Sections 1.10 and 4.2 hereof
and Sections 3.11 and 8.2 of the Senior Note Indenture, and without
limiting the generality of Section 1.12 hereof, this Mortgage shall
be binding upon and inure to the benefit of the parties hereto and of
the respective successors and assigns of the parties hereto to the
same effect as if each such successor or assign were in each case
named as a party to this Mortgage.
(b) This Senior Partnership Note Mortgage may not be modified,
amended, discharged, released nor any of its provisions waived except
by agreement in writing executed by Mortgagor and Mortgagee and in
accordance with the provisions of this Mortgage and the Senior Note
Indenture.
Section 1.7. Separability Clause.
In case any provision in this Mortgage or the Senior Partnership
Note shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
Section 1.8. Benefits of Mortgage.
Without limiting the generality of Section 1.12, nothing in this
Mortgage or in the Senior Partnership Note, express or implied, shall
give to any Person, other than the parties hereto and their
successors and assigns, any benefit or any legal or equitable right,
remedy or claim under this Mortgage.
Section 1.9. Governing Law.
This Senior Partnership Note Mortgage shall be deemed to be a
contract under the laws of the State of New Jersey and shall be
construed in accordance with and governed by the laws of the State of
New Jersey.
Section 1.10. Limitation on Liability.
Notwithstanding anything herein or in any other agreement,
document, certificate, instrument, statement or omission referred
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to below to the contrary, Mortgagor is liable hereunder only to the
extent of the assets of Mortgagor and no other person or entity,
including, without limitation, any partner, officer, committee or
committee member of Mortgagor or any partner therein or in any
partnership Affiliate of Mortgagor, or any incorporator, officer,
director or shareholder of any corporate partner of Mortgagor or of
any corporate Affiliate of Mortgagor, or any Affiliate or controlling
person or entity of any of the foregoing, or any agent, employee, or
lender of any of the foregoing, or any successor, personal
representative, heir or assign of any of the foregoing, in each case
past, present or as they may exist in the future, shall be liable in
any respect (including, without limitation, the breach of any
representation, warranty, covenant, agreement, condition or
indemnification or contribution undertaking contained herein or
therein) under, in connection with, arising out of or relating to
this Senior Note Mortgage, or any other agreement, document,
certificate, instrument or statement (oral or written) related to,
executed or to be executed, delivered or to be delivered, or made or
to be made, or any omission made or to be made, in connection with
any of the foregoing or any of the transactions contemplated in any
such agreement, document, certificate, instrument, or statement. Any
agreement, document, certificate, statement or other instrument to be
executed simultaneously with, in connection with, arising out of or
relating to this Mortgage or any other agreement, document,
certificate, statement or instrument referred to above, or any
agreement, document, certificate, statement or instrument
contemplated hereby shall contain language mutatis mutandis to this
Section 1.10 and, if such language is omitted, shall be deemed to
contain such language.
Section 1.11. Provisions Required by Senior Note Indenture.
Whenever the provisions of this Senior Note Mortgage and the
provisions of the Senior Note Indenture shall be inconsistent, the
provisions of the Senior Note Indenture shall govern.
Section 1.12. References to Mortgagee
and/or to Trustee; Rights of Trustee.
(a) Whenever reference is made in this Mortgage to the rights,
powers and remedies of Mortgagee or to Notices to or by Mortgagee,
the same shall apply to Trump's Castle Funding, Inc. only so long as
Trump's Castle Funding, Inc. is the holder of this Mortgage and the
Senior Partnership Note. Subsequent to the assignment thereof on the
date of and pursuant to the Senior Assignment Agreement by Trump's
Castle Funding, Inc. to the Trustee (who shall have and hold all such
rights, powers and remedies on behalf of the Holders in accordance
with the terms of the Senior Note Indenture) and for so long as there
shall not have been effected a cancellation and discharge of the
assignment pursuant to Article V of the Senior Assignment Agreement,
such
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rights, powers and remedies of Mortgagee and any Notices to or by
Mortgagee, shall apply only to the Trustee with the same force and
effect as if (i) such rights, powers and remedies were specifically
granted by this Senior Note Mortgage and the Senior Partnership Note
directly to the Trustee and (ii) the Trustee were the named Mortgagee
with respect to the giving and receiving of Notices under Section
1.2. Upon such assignment of this Senior Note Mortgage, the Trustee
shall be named in lieu of Trump's Castle Funding, Inc., as a named
insured under the policies of insurance set forth in Section 5.10
hereof (except that with respect to the policy described in Section
5.10(a)(iii) of this Mortgage, Trump's Castle Funding, Inc. may, at
Mortgagor's election, be named as an additional insured).
(b) So long as there shall not have been effected a
cancellation and discharge of the assignment pursuant to Article V of
the Senior Assignment Agreement, except as otherwise provided in
Section 6.2 of the Senior Note Indenture:
(1) Mortgagee may rely, and shall be protected in acting
or refraining from acting, upon any resolution, certificate,
statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence
of indebtedness or other paper or document believed by it to be
genuine and to have been signed or presented by the proper party
or parties;
(2) any request or direction of Mortgagor mentioned herein
shall be sufficiently evidenced by a Mortgagor Request or
Mortgagor Order;
(3) whenever in the administration of this Mortgage,
Mortgagee shall deem it desirable that a matter be proved or
established prior to taking, suffering or omitting any action
hereunder, Mortgagee (unless other evidence be herein
specifically prescribed) may, in the absence of bad faith on its
part, rely upon a Mortgagor's Certificate;
(4) Mortgagee may consult with counsel and any written
advice of such counsel or any Opinion of Counsel shall be full
and complete authorization and protection in respect of any
action taken, suffered or omitted by Mortgagee hereunder in good
faith and in reliance thereon;
(5) Mortgagee shall be under no obligation to exercise any
of the rights or powers vested in it by this Mortgage at the
request or direction of any of the Holders pursuant to the
Senior Note Indenture, unless such Holders shall have offered to
Mortgagee reasonable security or indemnity against the costs,
expenses and liabilities which might be incurred therein or
thereby in compliance with such request or direction;
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(6) Mortgagee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request,
direction, consent, order, approval, appraisal, bond, debenture,
note, coupon, security or other paper or document but Mortgagee,
in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit, and,
if Mortgagee shall determine to make such further inquiry or
investigation, it shall be entitled (subject to the express
limitations with respect thereto contained in this Senior Note
Mortgage) to examine the books, records and premises of
Mortgagor, personally or by agent or attorney;
(7) Mortgagee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by
or through agents or attorneys, and Mortgagee shall not be
responsible for any misconduct or negligence on the part of any
agent or attorney appointed with due care by it hereunder;
(8) Mortgagee shall not be personally liable, in case of
entry by it upon the Trust Estate, for debts contracted or
liabilities or damages incurred in the management or operation
of the Trust Estate;
(9) Mortgagor shall pay or cause to be paid to the Trustee
all compensation and other amounts provided in Section 6.6 of
the Senior Note Indenture; and
(10) no provision of this Mortgage shall require Mortgagee
to expend or risk its own funds or otherwise incur any financial
liability in the performance of its obligations hereunder, or in
the exercise of any of its rights or powers.
(c) The provisions of Section 1.12(a) shall apply to all
Mortgage Documents executed in favor of Trump's Castle Funding, Inc.
The provisions of Section 1.12(b) shall apply to all Mortgage
Documents.
Section 1.13. Mortgage Subject to Casino Control Act.
Each provision of this Senior Note Mortgage is subject to and
shall be enforced in compliance with the provisions of the New Jersey
Casino Control Act.
Section 1.14. Discharge of Lien.
If (a) Mortgagor shall pay or cause to be paid, or there shall
otherwise be paid, to Mortgagee all amounts required to be
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paid by Mortgagor pursuant to this Mortgage and the Senior Note and
the conditions precedent for the Senior Note Indenture to cease,
determine and become null and void (except for any surviving rights
of transfer or exchange of the Senior Secured Notes provided in
Section 13.1 of the Senior Note Indenture and for the obligation to
pay the Trustee's fees and expenses provided in Section 6.6 of the
Senior Note Indenture) in accordance with Section 13.1 of the Senior
Note Indenture shall have occurred, or (b) there shall have occurred
a "defeasance" (as defined in Section 4.2 of the Senior Note
Indenture) of the Mortgage Senior Secured Notes, or (c) there shall
have occurred a "covenant defeasance" (as defined in Section 4.3 of
the Trust Indenture), then in any such case Mortgagee shall promptly
cancel and discharge this Mortgage, and any financing statements
filed in connection herewith and execute and deliver to Mortgagor all
such instruments as may be necessary, required or appropriate to
evidence such discharge and satisfaction of said lien or liens.
Section 1.15. General Application.
(a) The remedies of Mortgagee upon any default by Mortgagor in
the fulfillment of any of its obligations hereunder shall be limited
in each instance by the provisions of Section 1.10, whether or not
the provisions providing for such remedies explicitly refer to such
Section.
(b) The assertion of any rights upon any Default shall be
subject in each instance to, if required, the giving of any notice
and the expiration of any grace period provided for in Section 3.1 as
a condition to such Default becoming an Event of Default, unless the
Senior Note Indenture Act requires otherwise, in which case the
Senior Note Indenture Act shall control.
(c) For the purposes of this Senior Note Mortgage, it is
understood that an event which does not materially diminish the value
of Mortgagee's interest in the Trust Estate shall not be deemed an
"impairment of security," as that phrase is used in this Mortgage.
Section 1.16. Senior Note Mortgage Deemed to be Security Agreement.
To the extent that the grant of a security interest in any
portion of the Trust Estate is governed by the Uniform Commercial
Code, this Senior Note Mortgage is hereby deemed to be as well a
security agreement under the Uniform Commercial Code for the purpose
of creating hereby a security interest in all of Mortgagor's right,
title and interest in and to said property, securing the obligations
secured hereby, for the benefit of Mortgagee.
Section 1.17. No Duplication of Notices or Payments.
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Whenever it is provided in this Senior Note Mortgage and the
Senior Guarantee Mortgage that Mortgagor shall deliver any notice or
document, or is required to make any payment, the delivery of such
notice or document or the making of such payment shall constitute the
delivery of such notice or document or the making of such payment in
satisfaction of the terms, conditions and provisions of both this
Senior Note Mortgage and the Senior Guarantee Mortgage, provided that
such notice, document or payment states, or is accompanied by a
letter stating, that such notice, document or payment is being
delivered in satisfaction of the terms, conditions and provisions of
both this Mortgage and the Guarantee Mortgage.
ARTICLE TWO
RELEASE; SUBORDINATION
Section 2.1. Possession by Mortgagor.
So long as there shall have been no acceleration of maturity of
the Senior Partnership Note under Section 3.2, Mortgagor shall be
suffered and permitted, with power freely and without let or
hindrance on the part of Mortgagee, subject to the provisions of this
Mortgage and the Senior Note Indenture, to possess, use, manage,
operate and enjoy the Trust Estate and every part thereof and to
collect, receive, use, invest and dispose of the rents, issues,
tolls, profits, revenues and other income from the Trust Estate or
any part thereof, to use, consume and dispose of any consumables,
goods, wares and merchandise in the ordinary course of business of
operating the Casino Hotel and to adjust and settle all matters
relating to choses in action, leases and contracts.
Section 2.2. Obsolete Property.
Mortgagor shall have the right, at any time and from time to
time, unless an Event of Default shall have occurred and be
continuing, without any release from or consent by Mortgagee:
(a) to sell or dispose of, free from the lien of this Mortgage,
any Tangible Personal Property which, in its reasonable opinion, may
have become obsolete or unfit for use or which is no longer necessary
in the conduct of its businesses or the operation of the Trust
Estate, and no purchaser of any such property shall be bound to
inquire into any question affecting Mortgagor's right to sell or
otherwise dispose of the same free from the lien of this Mortgage;
(b) to alter, repair, replace, change the location or position
of and add to any Tangible Personal Property; provided, however, that
no change shall be made in the location of any such
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property subject to the lien of this Mortgage which would in any
respect impair the security of this Mortgage upon such property; or
(c) to renew, extend, surrender, terminate, modify or amend any
leases of Tangible Personal Property, when, in Mortgagor's reasonable
opinion, it is prudent to do so.
Mortgagor shall retain any net cash proceeds received from the
sale or disposition of any Tangible Personal Property under
Subsection (a) of this Section 2.2, in the business of operating the
Casino Hotel.
Mortgagee shall be under no responsibility or duty with respect
to the exercise of the rights of Mortgagor under this Section 2.2 or
the application of the proceeds of any sale or disposition of any
Tangible Personal Property.
Mortgagee shall, from time to time, promptly execute any written
instrument in form satisfactory to Mortgagee to confirm the propriety
of any action taken by Mortgagor under this Section 2.2, upon receipt
by Mortgagee of a Mortgagor Request requesting the same, together
with a Mortgagor's Certificate stating that the action so to be
confirmed was duly taken in conformity with this Section 2.2, and
that the execution of such written instrument is appropriate to
confirm the propriety of such action under this Section 2.2;
provided, that Mortgagee shall have no liability thereunder and all
costs and expenses (including, without limitation, reasonable
attorneys' fees and disbursements) shall be paid by Mortgagor.
Section 2.3. F,F&E Financing Agreements.
Notwithstanding any provision contained in this Mortgage or the
Senior Note Indenture to the contrary, if Mortgagor acquires Tangible
Personal Property and/or other items constituting operating assets
subject to any F,F&E Financing Agreement, or becomes the lessee under
a lease for any of the same and if the document evidencing such F,F&E
Financing Agreement prohibits subordinate liens or the provisions of
any such lease prohibits any assignment thereof by the lessee, and if
any such prohibition is customary with respect to similar
transactions of the lender or lessor (as evidenced by a Mortgagor's
Certificate delivered to Mortgagee, together with such other evidence
as Mortgagee may reasonably request), as the case may be, then the
property so purchased or the lessee's interest in the lease, as the
case may be, shall be deemed to be Excepted Property. If any such
F,F&E Financing Agreement permits subordinate liens, then Mortgagee
shall execute and deliver to Mortgagor, at Mortgagor's expense, such
documents as the holder of such F,F&E Financing Agreement may
reasonably request to evidence the subordination of the lien of this
Mortgage and the Mortgage Documents to the lien of such
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F,F&E Financing Agreement; provided, however, that Mortgagee shall
have no obligation to execute and deliver such documents, and the
lien of this Mortgage shall not be subordinate to any such F,F&E
Financing Agreement, unless (a) such F,F&E Financing Agreement shall
contain a provision binding upon the holder of such F,F&E Financing
Agreement that (i) if the holder of such F,F&E Financing Agreement
shall give to Mortgagor any notice of default thereunder, such holder
shall at the same time and in the same manner serve a copy of such
notice on Mortgagee at the address designated herein (or such other
address as Mortgagee may designate by notice given to the holder of
such F,F&E Financing Agreement in the manner provided for notices
hereunder), and that no such notice to Mortgagor shall be deemed to
have been duly given unless and until a copy thereof has been so
provided to Mortgagee, and (ii) promptly following the last date upon
which Mortgagor may cure such default, if Mortgagor shall fail to
cure such default, the holder of such F,F&E Financing Agreement shall
give notice to Mortgagee stating the manner in which Mortgagor shall
have failed to cure its said default, in which event Mortgagee shall
be permitted to cure the default and, with respect thereto, Mortgagee
shall have the same amount of time, after such notice, within which
to cure the said default, as is provided for under the provisions of
such F,F&E Financing Agreement to be given to Mortgagor therefor
after notice or (b) Mortgagor delivers to Mortgagee a Mortgagor's
Certificate certifying that (i) the provision described in clause (a)
is not customarily included by the lender or lessor in its F,F&E
Financing Agreements in similar transactions and (ii) although
Mortgagor has used reasonable efforts to have included in such F,F&E
Financing Agreement such a provision, Mortgagor has been unsuccessful
in obtaining such a provision.
ARTICLE THREE
REMEDIES
Section 3.1. Events of Default.
"Event of Default," whenever used herein, means any one of the
following events (including any applicable notice requirement and any
period of grace, as specified in this Section 3.1) (whatever the
reason for such event and whether it shall be voluntary or
involuntary or be effected by operation of law or pursuant to any
judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body):
(a) default in the payment of any interest on the Senior
Partnership Note when such interest becomes due and payable and
continuance of such default for a period of 30 days; or
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(b) default in the payment of all or any portion of the
principal of (or premium, if any, on) the Senior Partnership Note
when the same becomes due and payable at its Maturity; or
(c) default in the payment of any other sum due under the
Senior Partnership Note or this Senior Note Mortgage, and the
continuance of such default for a period of 30 days after there has
been given to Mortgagor a notice specifying such default and
requiring it to be remedied and stating that such notice is a "Notice
of Default" hereunder; or
(d) default in the performance, or breach, of any
covenant of Mortgagor in this Senior Note Mortgage (other than a
covenant, a default in the performance or breach of which is
elsewhere in this Section 3.1 specifically dealt with), and
continuance of such default or breach for a period of 30 days after
there has been given to Mortgagor a notice specifying such default or
breach and requiring it to be remedied and stating that such notice
is a "Notice of Default" hereunder, unless (i) the default or breach
is of such a nature that is curable but not susceptible of being
cured with due diligence within such 30-day period (for reasons other
than the lack of funds), (ii) Mortgagor delivers an Mortgagor's
Certificate to Mortgagee within such 30-day period stating (A) the
applicability of the provisions of clause (i) to such default or
breach, (B) Mortgagor's intention to remedy such default or breach
with reasonable diligence and (C) the steps which Mortgagor has
undertaken or intends to undertake to remedy such default or breach
and (iii) Mortgagor delivers to Mortgagee additional Mortgagor's
Certificates every 30 days thereafter updating the information
contained in the certificate described in clause (ii), in which case
such 30-day period shall be extended for such further period of time
(but in no event more than 60 days after the last day of such 30-day
period) as may reasonably be required to cure the same, provided that
Mortgagor is then proceeding and thereafter continues to proceed to
cure the same with reasonable diligence; or
(e) an "Event of Default," as defined in Section 5.1 of the
Senior Note Indenture, shall occur and be continuing; or
(f) default by the Partnership, the Issuer or any of the
Subsidiaries under any Indebtedness, whether such Indebtedness now
exists or shall hereafter be created, if such default would permit
the holders of such Indebtedness to cause, or has resulted in,
acceleration of the maturity of such Indebtedness, in an aggregate
principal amount in excess of $5,000,000;
(g) default in the performance, or breach, of any of the
provisions of Article Four hereof; or
(h) if any representation or warranty of Mortgagor set forth in
this Senior Note Mortgage or in any notice, certificate,
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demand or request delivered to Mortgagee pursuant to this Mortgage
shall prove to be incorrect in any material respect as of the time
when made.
An Event of Default shall not be deemed to exist by reason of
any event which Mortgagor is contesting in compliance with the
provisions of Section 5.8.
Section 3.2. Acceleration of Maturity;
Recision and Annulment.
If an Event of Default (other than an Event of Default specified
in Section 5.1(f) or (g) of the Senior Note Indenture) occurs and is
continuing, then, and in every such case, Mortgagee may declare the
Outstanding Amount of the Senior Partnership Note to be due and
payable immediately, by a notice in writing to Mortgagor and upon any
such declaration such principal shall become immediately due and
payable. If an Event of Default specified in such Section 5.1(f) or
(g) occurs, the Outstanding Amount of the Senior Partnership Note
shall ipso facto become due and payable without any declaration or
other act on the part of the Mortgagee.
If at any time after such declaration of acceleration has been
made, but before any judgment or decree for payment of money due on
the Senior Partnership Note has been obtained by the Mortgagee, such
declaration of acceleration and its consequences has been duly
rescinded and annulled in accordance with Section 5.2 of the Senior
Note Indenture, then the declaration of acceleration pursuant to this
Section 3.2 shall automatically be rescinded and annulled.
No such rescission and annulment shall affect any subsequent
default or impair any right consequent thereon.
Section 3.3. Application of Moneys Received by Mortgagee.
Any moneys received by Mortgagee pursuant to the provisions of
this Article Three (including moneys received by the Trustee after
any action or act by Mortgagee under Section 3.10) shall be applied
by Mortgagee in accordance with the provisions of Section 5.6 of the
Senior Note Indenture.
Section 3.4. Restoration of Rights and Remedies.
If Mortgagee has instituted any proceeding to enforce any right
or remedy under this Senior Note Mortgage and such proceeding has
been discontinued or abandoned for any reason or has been determined
adversely to Mortgagee, then and in every such case Mortgagor and
Mortgagee shall, subject to any determination in such proceeding, be
restored to their respective former positions hereunder, and
thereafter all rights and
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remedies of Mortgagee shall continue as though no such proceeding had
been instituted.
Section 3.5. Rights and Remedies Cumulative.
No right or remedy herein conferred upon or reserved to
Mortgagee is intended to be exclusive of any other right or remedy,
and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given
hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion
or employment of any other appropriate right or remedy.
Section 3.6. Delay or Omission Not Waiver.
No delay or omission of Mortgagee to exercise any right or
remedy accruing upon an Event of Default shall impair any such right
or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this Article
Three or by applicable law to Mortgagee may be exercised, from time
to time, and as often as may be deemed expedient, by Mortgagee.
Section 3.7. Undertaking for Costs.
If any action or proceeding shall be commenced (including,
without limitation, an action to foreclose this Mortgage or to
collect the indebtedness secured hereby) to which action or
proceeding Mortgagee is made or becomes a party, or in which it
becomes necessary in the opinion of Mortgagee to defend or uphold the
lien of this Senior Note Mortgage, Mortgagor shall pay to Mortgagee
all expenses, including, without limitation, reasonable attorneys'
fees, disbursements and court costs incurred by Mortgagee in
connection therewith, together with interest at the rate then payable
on the Senior Partnership Note, from the date of payment less the net
amount received by Mortgagee or the Trustee, as their interests may
appear under any title insurance policy, and, until paid, all such
expenses, together with interest as aforesaid, shall be secured by
the lien of this Mortgage.
Section 3.8. Waiver of Appraisement and Other Laws.
To the full extent that it may lawfully so agree, Mortgagor will
not at any time insist upon, plead, claim or take the benefit or
advantage of, any appraisement, valuation, stay, extension or
redemption law now or hereafter in force, in order to prevent or
hinder the enforcement of this Mortgage or the absolute sale of the
Trust Estate, or any part thereof, or the possession thereof by any
purchaser at any sale under this Article Three; and Mortgagor, for
itself and all who may claim
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under Mortgagor, so far as Mortgagor or they now or hereafter may
lawfully do so, hereby waives the benefit of all such laws.
Mortgagor, for itself and all who may claim under Mortgagor, waives,
to the extent that Mortgagor may lawfully do so, all right to have
the property in the Trust Estate marshalled upon any foreclosure
hereof, and agrees that any court having jurisdiction to foreclose
this Mortgage may order the sale of the Trust Estate as an entirety.
If any law in this Section 3.8 referred to and now in force, of
which Mortgagor or its successor or successors might take advantage
despite this Section 3.8, shall hereafter be repealed or cease to be
in force, such law shall not thereafter be deemed to constitute any
part of the contract herein contained or to preclude the application
of this Section 3.8.
Section 3.9. Entry.
Mortgagor agrees that upon the occurrence, and during the
continuance, of an Event of Default, Mortgagor, upon demand of
Mortgagee, shall forthwith surrender to Mortgagee the actual
possession of, and it shall be lawful for Mortgagee by such officers
or agents as it may appoint to enter and take possession of, the
Trust Estate (and the books and papers of Mortgagor), and to hold,
operate and manage the Trust Estate (including the making of all
needful repairs, and such alterations, additions and improvements as
Mortgagee shall deem wise) and to receive the rents, issues, tolls,
profits, revenues and other income thereof, and, after deducting the
costs and expenses of entering, taking possession, holding, operating
and managing the Trust Estate, as well as payments for taxes,
insurance and other proper charges upon the Trust Estate and
reasonable compensation to itself, its agents and counsel, to apply
the same as provided in Section 3.3; provided, however, that
Mortgagee's rights under this Section 3.9 shall be subject to the
provisions of the New Jersey Casino Control Act and Section 3.14.
Whenever all that is then due upon the Senior Partnership Note and
under any of the terms of this Mortgage shall have been paid and all
defaults hereunder shall have been cured, Mortgagee shall surrender
possession to Mortgagor.
Section 3.10. Power of Sale; Suits for Enforcement.
If an Event of Default shall occur and be continuing, Mortgagee,
with or without entry, in its discretion, may:
(a) sell, subject to any mandatory requirements of applicable
law, the Trust Estate as an entirety, or in such parcels, as
Mortgagee may determine, to the highest bidder at public auction at
such place and at such time (which sale may be adjourned by Mortgagee
from time to time in its discretion by announcement at the time and
place fixed for such sale, without
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further notice) and upon such terms as Mortgagee may fix and briefly
specify in a notice of sale to be published as required by law; or
(b) proceed to protect and enforce its rights under this
Mortgage by sale pursuant to judicial proceedings or by a suit,
action or proceeding in equity or at law or otherwise, whether for
the specific performance of any covenant or agreement contained in
this Mortgage or in aid of the execution of any power granted in this
Mortgage or for the foreclosure of this Mortgage or for the
enforcement of any other legal, equitable or other remedy, as
Mortgagee shall deem most effectual to protect and enforce any of the
rights of Mortgagee; the failure to join tenants shall not be
asserted as a defense to any foreclosure or proceeding to enforce the
rights of Mortgagee.
Section 3.11. Incidents of Sale.
Upon any sale of any of the Trust Estate, whether made under the
power of sale hereby given or pursuant to judicial proceedings, to
the extent permitted by law:
(a) the principal of and accrued interest on the Senior
Partnership Note, if not previously due, shall at once become and be
immediately due and payable;
(b) subject to the provisions of Section 3.14 and the receipt
of any required prior approvals of the New Jersey Casino Control
Commission, Mortgagee may bid for and purchase the property offered
for sale, and upon compliance with the terms of sale may hold,
retain, possess and dispose of such property, without further
accountability, and may, in paying the purchase money therefor,
deliver the Senior Partnership Note or claims for interest thereon in
lieu of cash to the amount which shall, upon distribution of the net
proceeds of such sale, be payable thereon, and the Senior Partnership
Note, in case the amounts so payable thereon shall be less than the
amount due thereon, shall be returned to Mortgagee after being
appropriately stamped to show partial payment;
(c) Mortgagee may make and deliver to the purchaser or
purchasers a good and sufficient deed, bill of sale and instrument of
assignment and transfer of the property sold;
(d) Mortgagee is hereby irrevocably appointed the true and
lawful attorney of Mortgagor, in its name and stead, to make all
necessary deeds, bills of sale and instruments of assignment and
transfer of the property thus sold; and for that purpose it may
execute all necessary deeds, bills of sale and instruments of
assignment and transfer, and may substitute one or more persons,
firms or corporations with like power, Mortgagor hereby ratifying and
confirming all that its said attorney or such substitute or
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substitutes shall lawfully do by virtue hereof; but if so requested
by Mortgagee or by any purchaser, Mortgagor shall ratify and confirm
any such sale or transfer by executing and delivering to Mortgagee or
to such purchaser or purchasers all proper deeds, bills of sale,
instruments of assignment and transfer and releases as may be
designated in any such request;
(e) all right, title, interest, claim and demand whatsoever,
either at law or in equity or otherwise, of Mortgagor of, in and to
the property so sold shall be divested and such sale shall be a
perpetual bar both at law and in equity against Mortgagor, its
successors and assigns, and against any and all persons claiming or
who may claim the property sold or any part thereof from, through or
under Mortgagor, its successors and assigns; and
(f) the receipt of Mortgagee or of the officer making such sale
shall be a sufficient discharge to the purchaser or purchasers at
such sale for his or their purchase money and such purchaser or
purchasers and his or their assigns or personal representatives shall
not, after paying such purchase money and receiving such receipt, be
obliged to see to the application of such purchase money, or be in
anywise answerable for any loss, misapplication or non-application
thereof.
Section 3.12. Receiver.
Upon the occurrence of an Event of Default and commencement of
judicial proceedings by Mortgagee to enforce any right under this
Mortgage, Mortgagee shall be entitled, as against Mortgagor, without
notice or demand and without regard to the adequacy of the security
for the Senior Partnership Note or the solvency of Mortgagor, to the
appointment of a receiver of the Trust Estate, and of the rents,
issues, profits, revenues and other income thereof; provided,
however, that Mortgagee's rights under this Section 3.12 shall be
subject to the provisions of the New Jersey Casino Control Act and
Section 3.14 hereof.
Section 3.13. Suits to Protect the Trust Estate.
Mortgagor hereby acknowledges the right of Mortgagee, in the
name and on behalf of Mortgagor, (a) to appear in and defend any
action or proceeding brought with respect to the Trust Estate or any
part thereof and (b) upon 5 days' prior notice to Mortgagor (or such
shorter period or without notice if deemed necessary and appropriate
by Mortgagee), to institute and to maintain such proceedings as
Mortgagee may deem necessary and appropriate, but in the case of (a)
and (b) only to prevent any impairment of security or any impairment
of the Trust Estate by any acts which may be unlawful or in violation
of this Mortgage and to protect Mortgagee's interests in the Trust
Estate and in the rents, issues, profits, revenues and other income
arising therefrom,
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including the right to institute and maintain proceedings to restrain
the enforcement of or compliance with any governmental enactment,
rule or order that may be unconstitutional or otherwise invalid, if
the enforcement of or compliance with such enactment, rule or order
would impair the security hereunder or be materially prejudicial to
the interests of Mortgagee.
Section 3.14. Management of the Premises.
Without limiting the generality of any other provision of this
Article Three, following an Event of Default and the taking of
possession of the Trust Estate or any part thereof by Mortgagee
and/or the appointment of a receiver of the Trust Estate or any part
thereof, Mortgagee or any such receiver shall be authorized, in
addition to the rights and powers of Mortgagee and such receiver set
forth elsewhere in this Mortgage, to take any action permitted under
Section 5.17 of the Senior Note Indenture.
ARTICLE FOUR
CONSOLIDATION, MERGER, CONVEYANCE,
TRANSFER OR LEASE
Section 4.1. Consolidation, Merger, Conveyance
or Transfer only on Certain Terms.
Mortgagor shall comply with all provisions applicable to
Mortgagor in Article Eight of the Senior Note Indenture.
Section 4.2. Successor Entity Substituted.
Upon any consolidation or merger, or any sale, assignment,
conveyance, transfer or disposition of the Trust Estate or any
portion thereof in accordance with Section 8.1 of the Senior Note
Indenture (other than a lease), the successor Person formed by such
consolidation or into which Mortgagor is merged or the successor
Person to which such sale, assignment, conveyance, transfer or
disposition is made shall succeed to, and be substituted for, and may
exercise every right and power of, Mortgagor under this Mortgage with
the same effect as if such successor had been named as Mortgagor
herein; and thereafter, except in the case of a lease, the Person
named as "Mortgagor" in the first paragraph of this instrument or any
successor Person which shall theretofore have become such in the
manner prescribed in this Article shall be discharged from all
obligations and covenants under this Mortgage.
ARTICLE FIVE
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COVENANTS AND REPRESENTATIONS OF MORTGAGOR
Section 5.1. Payment of Principal, Premium and Interest.
Mortgagor shall duly and punctually pay the principal of (and
premium, if any) and interest on the Senior Partnership Note in
accordance with the terms of the Senior Partnership Note and this
Mortgage.
Section 5.2. F,F&E Financing Agreements.
Mortgagor shall comply with all of the terms and conditions set
forth in any F,F&E Financing Agreements before the expiration of any
applicable notice and cure periods contained in the F,F&E Financing
Agreements.
Section 5.3. Limitations on Liens and Transfers.
(a) Mortgagor shall not create, incur, suffer or permit to be
created or incurred or to exist any mortgage, lien, charge or
encumbrance on or pledge of any of the Trust Estate, other than (i)
Permitted Encumbrances, (ii) a notice of intention filed by a
mechanic, materialman or laborer under the New Jersey mechanic's lien
law, and (iii) a building contract filed by a contractor or
subcontractor under the New Jersey mechanic's lien law. Without
limiting the generality of the foregoing sentence but notwithstanding
the provisions of the foregoing sentence, Mortgagor shall not be
deemed to have breached the provisions of the foregoing sentence by
virtue of the existence of a lien for Impositions or mechanics' liens
so long as Mortgagor is in good faith contesting the validity of the
same in accordance with the provisions of Section 5.8.
(b) The lien of this Mortgage on the date hereof shall be
subject and subordinate to the lien of any Existing Encumbrances to
the extent that each thereof encumbers Mortgagor's interest in the
Trust Estate or any part thereof. The foregoing provisions of this
Section 5.3(b) shall be self-operative and no further instrument
shall be required to give effect to such subordination. Mortgagee
shall, however, from time to time, after receipt of a Mortgagor
Request therefor (accompanied by a Mortgagor's Certificate stating
that said conditions have been satisfied) execute instruments in form
and substance reasonably satisfactory to the holder of a particular
Superior Mortgage confirming such subordination.
(c) Except as otherwise expressly permitted under this Mortgage
and the Senior Note Indenture (including, without limitation, Article
Eight of the Senior Note Indenture), Mortgagor shall not sell,
assign, lease or otherwise transfer all or any portion of the Trust
Estate or any interest therein. Notwithstanding the foregoing,
Mortgagor shall have the right, at
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any time and from time to time, unless an Event of Default shall have
occurred and be continuing, without any release from or consent by
Mortgagee, to grant interests in the Owned Land in the nature of
rights-of-way or easements, or other rights or privileges in the
nature of easements; provided, (i) that none of the same will reduce
or impair, in any material respect, (A) the value or usefulness of
the Trust Estate or any part thereof or (B) the normal operation of
the Casino Hotel in accordance with all Legal Requirements and all
Permits, (ii) Mortgagor has delivered to Mortgagee a Mortgagor's
Certificate, dated not earlier than 10 days prior to the date of each
such grant, certifying that (A) no Event of Default has occurred and
is continuing and (B) the conditions set forth in this Section 5.3(c)
for such grant have been fulfilled and (iii) Mortgagor has delivered
to Mortgagee a duplicate original of the instrument, if any, pursuant
to which such grant is to be made, and such other instruments,
certificates and opinions as Mortgagee may reasonably request. The
foregoing provisions of this Section 5.3(c) shall be self-operative
and no further instrument shall be required to evidence the consent
of Mortgagee to the grant or other conveyance of such rights-of-way
or easements. Mortgagee shall, however, from time to time, after
receipt of a Mortgagor Request therefor (accompanied by a Mortgagor's
Certificate stating that said conditions have been satisfied) execute
instruments in form and substance reasonably satisfactory to
Mortgagee confirming the permissibility of such grant or other
conveyance.
Section 5.4. Environmental.
Without limiting the generality of any other provision of this
Mortgage, Mortgagor covenants, represents and warrants to Mortgagee
as follows:
(a) Mortgagor shall comply with any and all federal, state and
local environmental legislation, rules, and regulations in effect as
of the date of this Mortgage and subsequent thereto, including,
without limitation, the Spill Compensation and Control Act (N.J.S.A.
58:10-23. 11 et seq.) (the"Spill Act"); the Industrial Site Recovery
Act (N.J.S.A. 13:1K-6 et seq.) ("IRSA"); the Solid Waste Management
Act (N.J.S.A. 13:E-1 et seq.); the Resource, Conservation and
Recovery Act (42 U.S.C. Section 6901 et seq.) ("RCRA"); the
Comprehensive Environmental Response, Compensation and Liability Act
(42 U.S.C. Section 9601 et seq.) ("CERCLA") and such other
environmental legislation, rules and regulations, as are in or may
come into effect and apply to (i) Mortgagor and/or Mortgagee with
respect to the Premises or (ii) the transactions contemplated hereby,
and as to any occupants or users of the collateral, whether as
lessees, tenants, licensees or otherwise, Mortgagor shall use its
best efforts to cause same to comply with said legislation, rules and
regulations.
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Mortgagor agrees to pay all costs required in connection with
compliance with the foregoing legislation, rules and regulations.
(b) Mortgagor has not used in the past, nor shall Mortgagor use
in the future, the Premises for the purpose of refining, producing,
storing, handling, transferring, processing or transporting
"Hazardous Substances", as such term is defined in IRSA, the Spill
Act, CERCLA or the regulations relating thereto, except that
Mortgagor and its subsidiaries have used, and Mortgagor may continue
in the future to use, substances in the operation and maintenance of
the Premises, including, without limitation, heating oil, gasoline
and cleaning chemicals which could be considered as "Hazardous
Substances" under the preceding definition.
(c) To the best of Mortgagor's knowledge, after due inquiry and
investigation, none of the real property owned, leased and/or
occupied by Mortgagor and located in the State of New Jersey,
including, without limitation, the Premises, has been or is now being
used as a "Major Facility" as such term is defined in N.J.S.A.
58:10-23.11b(1). Mortgagor will not use the Premises in the future
as a "Major Facility".
(d) To the best of Mortgagor's knowledge, after due inquiry and
investigation, no lien has been attached to any revenues or any real
or personal property owned by Mortgagor or the Premises, as a result
of the Chief Executive of the New Jersey Spill Compensation Fund
expending monies from said fund to pay for "Cleanup Costs", as such
term is defined in N.J.S.A. 58:10-23.11b(d), arising from an
intentional or unintentional action or omission of Mortgagor or any
previous owner and/or operator of such real property.
(e) There is no asbestos or asbestos containing material on the
Premises. To the best of Mortgagor's knowledge, there are no
underground storage tanks located at the Premises, other than those
tanks previously disclosed to Mortgagee and which are maintained in
accordance with all material Legal Requirements. Mortgagor has not
installed or placed, or permitted to be installed or placed, any
underground storage tanks at or on the Premises, other than those
tanks previously disclosed to Mortgagee and which are maintained in
accordance with all material Legal Requirements. Underground storage
tanks shall have the definition as set forth in N.J.S.A.
58:10A-22(p).
(f) Mortgagor has not received a summons, citation, directive,
letter, other written communication, or, to the best of its
knowledge, any oral communication, from the New Jersey Department of
Environmental Protection and Energy or from any other person, firm or
corporation concerning any intentional or unintentional action or
omission on Mortgagor's part resulting in the releasing, spilling,
leaking, pumping, pouring, emitting,
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emptying or dumping of "Hazardous Substances", as such term is
defined in N.J.S.A. 58:10-23.11b(k), into the waters or onto the
lands of the State of New Jersey, or into the waters outside the
jurisdiction of the State of New Jersey, in either case resulting in
damage to the lands, waters, fish, shellfish, wildlife, biota, air
and other resources owned, managed, held in trust or otherwise
controlled by the State of New Jersey.
(g) In connection with any purchase of the Premises or any
business or assets located thereon or any "closing, terminating or
transferring operations" of any "industrial establishment", as that
term is defined in ISRA, occurring on or after December 31, 1983,
Mortgagor required that the owner and or operator of the industrial
establishment comply with the provisions of ECRA and the owner and or
operator did comply therewith.
(h) Upon the occurrence of an Event (as hereinafter defined),
Mortgagee shall have the right to have its consultants perform a
comprehensive environmental audit of the Premises. Such audit shall
be conducted by an environmental consultant chosen by Mortgagee and
may include a visual survey, a record review, an area reconnaissance
assessing the presence of hazardous or toxic waste or substances,
PCBs or storage tanks at the Premises, an asbestos survey of the
Premises, which may include random sampling of the improvements and
air quality testing, and such further site assessments as Mortgagee
may reasonably require due to the results obtained from the
foregoing. Mortgagor grants Mortgagee, its agents, consultants and
contractors the right to enter the Premises for the purposes of
performing such studies and the cost of such studies shall be due and
payable by Mortgagor to Mortgagee upon demand and shall be secured by
the lien of this Mortgage. Mortgagee shall direct the environmental
consultant to use its best efforts not to hinder Mortgagor's or any
tenant's operations when conducting such audit, sampling or
inspections. For purposes of this paragraph, the term "Event" shall
mean (i) the occurrence of any Event of Default, (ii) the issuance of
any summons, citation, directive or similar written notice from the
New Jersey Department of Environmental Protection and Energy or from
any other local, state or federal entity or from any other person,
firm or corporation concerning any alleged material violation of any
and all federal, state and local environmental legislation, rules and
regulations in effect as of the date of this Mortgage and subsequent
thereto or (iii) the initiation of any legal action, suits or other
legal or administrative proceedings relating to or in connection with
any alleged violation of any and all federal, state and local
environmental legislation, rules and regulations in effect as of the
date of this Mortgage and subsequent thereto.
(i) If a lien shall be filed against the Premises by the New
Jersey Department of Environmental Protection and Energy,
(40)
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pursuant to and in accordance with the provisions of N.J.S.A.
58:10-23.11f(f), as a result of the Chief Executive of the New Jersey
Spill Compensation Fund having expended monies from said fund to pay
for "Damages", as such term is defined in N.J.S.A. 58:10-23.11g,
and/or "Cleanup and Removal-Costs", as such term is defined in
N.J.S.A. 58:10-23(b), arising from an intentional or unintentional
action or omission of Mortgagor resulting in the releasing, spilling,
pumping, pouring, emitting, emptying or dumping of "Hazardous
Substances", as such term is defined in N.J.S.A. 58:10-23.11(b)k into
waters of the State of New Jersey or onto lands from which it might
flow or drain into said waters, then, unless there is a good faith
basis for contesting such lien and Mortgagor is so contesting such
lien in accordance with Section 5.9, Mortgagor shall, within 30 days
from the date that Mortgagor is given notice that the lien has been
placed against the Premises or within such shorter period of time if
the State of New Jersey has commenced steps to cause the Premises to
be sold pursuant to the lien, either (i) pay the claim and remove the
lien from the Premises, or (ii) furnish (A) a bond satisfactory to a
title company selected by Mortgagee (the "Title Insurer") in the
amount of the claim out of which the lien arises, (B) to the Trustee,
a cash deposit (which may be disbursed by the Trustee in its sole
discretion) in the amount of the claim out of which the lien arises,
or (C) other security reasonably satisfactory to Mortgagee in an
amount sufficient to discharge the claim out of which the lien
arises.
(j) Mortgagor shall use its best efforts to cause compliance by
all lessees with all applicable Legal Requirements relating to
environmental protection.
(k) Mortgagor shall promptly provide Mortgagee with copies of
all notices received by or prepared by Mortgagor in connection with
ISRA, CERCLA, the Spill Act, RCRA or any other environmental law,
rule or regulation relating to the Premises. For purposes of this
paragraph, the term "notice" shall mean any summons, citation,
directive, order, claim, pleading, letter, application, filing,
report, findings, declarations or other materials pertinent to
compliance of the Trust Estate and Mortgagor with such environmental
laws, rules or regulations.
(l) If this Mortgage is foreclosed, Mortgagor shall deliver the
Premises in compliance with all applicable federal, state and local
environmental laws, ordinances, rules and regulations, including,
without limitation, ISRA.
(m) Without limiting the generality of Section 5.20, Mortgagor
agrees to defend, indemnify and save Mortgagee harmless from and
against any loss or liability, cost or expense (including, without
limitation, reasonable attorneys' fees, consultants' fees,
disbursements and court costs) arising out of, or incurred in
connection with, Mortgagor's misrepresentation, or
(41)
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failure promptly (but in no event to exceed the time period permitted
by law) to comply with and perform its obligations, under this
Section 5.4. The provisions of this subsection (m) shall survive any
transfer of the Premises, including a transfer after a foreclosure of
this Mortgage.
Section 5.5. Warranty of Leasehold Estate and Title.
Mortgagor represents and warrants that as of the date hereof:
(a) Mortgagor is duly authorized under the laws of the State of
New Jersey and all other applicable laws to execute and deliver the
Mortgage Documents, and all partnership action on Mortgagor's part
necessary for the valid execution and delivery of the Mortgage
Documents has been duly and effectively taken;
(b) Mortgagor is the lawful owner and is lawfully seized and
possessed of the Owned Land and all buildings and improvements
thereon, free and clear of all liens, charges or encumbrances, other
than the Mortgage Documents and the Existing Encumbrances;
(c) Mortgagor is the holder of and has good and marketable
title to the leasehold interests and leasehold estates under all
existing Facility Leases, subject to no lien, encumbrance or charge
other than the Mortgage Documents and the Existing Encumbrances;
(d) (i) each existing Facility Lease is a valid and subsisting
demise of the respective Leased Land for the term therein set forth,
(ii) there are no defaults under any Facility Lease by any lessor or
the lessee as to which written notice has been given to or by the
lessee, (iii) Mortgagor has delivered to Mortgagee and the Trustee a
true and correct copy of each existing Facility Lease, and all
modifications, amendments and supplements thereto, and (iv) each
existing Facility Lease is in full force and effect and has not been
modified, amended or supplemented, except as described on Schedule 3;
(e) Mortgagor has good title to the Operating Assets, subject
to no lien, encumbrance or charge, other than the Mortgage Documents
and the Existing Encumbrances;
(f) Mortgagor has good and lawful right and authority to
execute this Mortgage and to grant, bargain, sell, alien, convey,
assign, transfer, hypothecate, pledge, mortgage and confirm the Trust
Estate as provided herein (including, without limitation, with
respect to the Operating Assets and Facility Leases), without the
consent of any third party, other than governmental authorities and
other secured Persons but any applicable or necessary consent or
approval of any such governmental authority
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and other such Persons has been given or waived in accordance with
applicable law at or prior to the execution and delivery of this
Mortgage, and this Mortgage constitutes a valid first mortgage lien
and deed of trust and first priority security interest in the Trust
Estate, subject only to Existing Encumbrances (including, without
limitation, the Superior Mortgage); and
(g) (i) all amounts due under the Superior Mortgage and the
instruments secured thereby have been paid to the extent they were
due and payable to the date hereof, and (ii) there is no existing
default under said Superior Mortgage or instruments, or in the
performance of any of the terms, covenants, conditions or warranties
therein on the part of Mortgagor to be performed and observed
thereunder as to which written notice has been given to Mortgagor.
Mortgagor hereby does and shall forever warrant and defend (a)
the title to the Trust Estate (including, without limitation,
Mortgagor's leasehold estate under, and the lessee's interests in,
each existing Facility Lease) (subject to Permitted Encumbrances) and
(b) the priority of the lien of this Senior Note Mortgage thereon
(subject to Permitted Encumbrances other than Restricted
Encumbrances), against the claims and demands of all persons
whomsoever, at Mortgagor's sole cost and expense.
Section 5.6. After-Acquired Property;
Further Assurances; Recording.
All property, real, personal or mixed or any interest therein
(other than Excepted Property), of every kind and description and
wheresoever situate, which may be hereafter acquired by Mortgagor
(including, without limitation, fee title to any Leased Land) shall
immediately upon the acquisition thereof by Mortgagor, and without
any further mortgage, conveyance or assignment, become subject to the
lien of this Mortgage as fully as though now owned by Mortgagor and
covered by the Granting Clauses. Nevertheless, Mortgagor shall do,
execute, acknowledge and deliver all and every such further acts,
conveyances, mortgages, financing statements and assurances as
Mortgagee shall require for accomplishing the express purposes of
this Senior Note Mortgage.
Mortgagor shall, as provided in Section 5.12, from time to time
subject to the lien of this Senior Note Mortgage its right, title and
interest under all Leases.
Mortgagor shall use reasonable efforts to insure that all
Operating Assets (other than Excepted Property) or any interest
therein hereafter acquired by Mortgagor shall be assignable to
Mortgagee, and to the extent such assignment to Mortgagee requires
the consent of any governmental authority or any other
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Person, Mortgagor shall use reasonable efforts to obtain such consent
or a waiver thereof.
Mortgagor shall cause this instrument and all other instruments
of further assurance, including all financing statements and
continuation statements covering security interests in personal
property, to be promptly recorded, registered and filed, and at all
times to be kept recorded, registered and filed, and shall execute
and file such financing statements and cause to be issued and filed
such continuation statements, all in such manner and in such places
as may be required by law or as requested by Mortgagee to fully
preserve and protect the rights of Mortgagee as a secured party under
the Uniform Commercial Code to all property comprising the Trust
Estate (to the extent a grant of a security interest therein is
governed by the Uniform Commercial Code) and to perfect, preserve and
protect the lien of this Senior Note Mortgage as a valid direct first
mortgage lien of record and a valid first priority security interest
on the Trust Estate, subject only to Permitted Encumbrances
(including, without limitation, the Superior Mortgage).
Mortgagor shall pay all filing or recording fees, and all
expenses incident to the execution and delivery of this Mortgage, any
financing statement or continuation statement with respect to the
personal property constituting part of the Trust Estate, and any
instrument of further assurance, and all federal, state, county and
municipal stamp taxes and other taxes, duties, imposts, assessments
and charges arising out of or in connection with the execution and
delivery of the Senior Partnership Note, this Senior Note Mortgage,
any financing statement or continuation statement with respect to the
personal property constituting part of the Trust Estate or any
instrument of further assurance.
Mortgagor shall furnish to Mortgagee promptly after the
acquisition hereafter by Mortgagor of any fee interest or leasehold
interest in real property having a fair market value exceeding
$500,000 (other than Excepted Property) (a) a mortgagee policy of
title insurance on the most recent form of American Land Title
Association standard loan policy, extended coverage, which policy
shall (i) contain all such endorsements and affirmative insurance, to
the extent reasonably applicable, as is contained in the Original
Policy and (ii) evidence that title to such real property is subject
to no liens or encumbrances (other than Permitted Encumbrances) which
would (A) render title unmarketable or (B) violate any other
provision of this Senior Note Mortgage or the Senior Note Indenture,
(b) an as-built survey meeting the "Minimum Standard Detail
Requirements for ALTA/ACSM Land Title Surveys", certified within 60
days prior to the acquisition date by a surveyor licensed in the
State of New
Jersey using the same form of certification as that contained in
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the surveys of the Premises delivered to the Trustee on the date of
this Mortgage and (c) a Mortgagor's Certificate certifying that the
mortgagee policy of title insurance and survey delivered pursuant to
clauses (a) and (b) comply, respectively, with the provisions of such
clauses (a) and (b). Upon delivery of all of the items required
under this paragraph, any liens or encumbrances on such real property
shall constitute Permitted Encumbrances hereunder.
Section 5.7. Payment of Taxes and Certain Claims;
Maintenance of Properties; Compliance with
Legal Requirements and Insurance Requirements.
Mortgagor shall:
(a) subject to the provisions of Section 5.8, pay or cause to
be paid before the date on which any fine, penalty, interest or cost
may be added for nonpayment (but no later than when the same are
payable by Mortgagor pursuant to any Superior Instrument
Requirement), all taxes (including, without limitation, real estate
taxes, personal or other property taxes and all sales, value added,
use and similar taxes), assessments (including, without limitation,
all assessments for public improvements or benefits, whether or not
commenced or completed prior to the date hereof and whether or not to
be completed prior to the satisfaction of this Mortgage), water,
sewer or other rents, rates and charges, excises, levies, license
fees, permit fees, inspection fees and other authorization fees and
other charges, in each case whether general or special, ordinary or
extraordinary, foreseen or unforeseen, of every character (including,
without limitation, all interest, additions to tax and penalties
thereon), that may be assessed, levied, confirmed or imposed on or in
respect of or be a lien upon (i) the Trust Estate (including, without
limitation, the Leased Land) or any part thereof or any rent
therefrom or any estate right or interest therein, or (ii) any
acquisition, occupancy, use, leasing, or possession of or activity
conducted on the real property or any part thereof included in the
Trust Estate or any gross receipts thereof or of the rent therefrom
(all of the foregoing being referred to collectively as
"Impositions"). Notwithstanding the foregoing or any other provision
of this Mortgage, Mortgagor shall not be required to pay any income,
profits or revenue tax upon the income of Mortgagee, the Trustee or
the Holders nor any franchise, excise, corporate, estate,
inheritance, succession, capital levy or transfer tax of Mortgagee,
the Trustee or the Holders nor any interest, additions to tax or
penalties in respect thereof, unless such tax is imposed, levied or
assessed in substitution for any Imposition that Mortgagor is
required to pay pursuant to this Section 5.7. Mortgagor shall
deliver to Mortgagee, at Mortgagee's request, official receipts or
other proof evidencing payments of any Impositions in accordance with
the requirements of this
(45)
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Section 5.7. Mortgagor shall not be entitled to any credit for taxes
or assessments paid against the Senior Partnership Note;
(b) except for such obsolete property as Mortgagor may dispose
of or replace pursuant to Section 2.2, maintain and keep all of
Mortgagor's properties used or useful in the conduct of Mortgagor's
business, including, without limitation, the Casino Hotel and all
Tangible Personal Property, in such good repair, working order and
condition, except for reasonable wear and use, and make or cause to
be made all such needful and proper repairs, renewals and
replacements thereto consistent with the standards of first-class
casino and hotel complexes in Atlantic City, New Jersey;
(c) occupy and continuously operate the Casino Hotel and keep
the Casino Hotel supplied with Tangible Personal Property, all in a
manner consistent with the standards of first-class casino and hotel
complexes in Atlantic City, New Jersey;
(d) subject to the provisions of Section 5.8, (i) comply with
all Legal Requirements and Insurance Requirements, whether or not
compliance therewith shall require structural changes in the
buildings and improvements included in the Trust Estate or interfere
with the use and enjoyment of the Trust Estate or any part thereof,
(ii) procure, maintain and comply with all Permits required for (1)
the use of the Casino as a gaming and gambling facility, (2) the
on-premises consumption of alcoholic beverages at the Casino Hotel
and (3) any other use of the Trust Estate or any part thereof then
being made, and for the proper erection, installation, operation and
maintenance of the improvements or any part thereof, (iii) comply
with all obligations of Mortgagor under, and keep in full force and
effect, all easements which in any respect inure to the benefit of,
or otherwise affect, the Trust Estate or any part thereof, if the
failure to comply with the same would impair Mortgagee's security
hereunder, and (iv) without limiting the generality of clause (iii),
comply with any instruments of record at the time in force affecting
the Trust Estate or any part thereof, if the failure to comply with
the same would impair Mortgagee's security hereunder. Without
limiting the generality of the foregoing, Mortgagor represents and
warrants that at the time of the execution of this Mortgage,
Mortgagor is in compliance with the requirements of clauses (i),
(ii), (iii) and (iv) above; and
(e) in the event of the passage after the date of this Mortgage
of any law of the State of New Jersey, or any other governmental
entity, changing in any way the laws now in force for the taxation of
mortgages, or debts secured thereby, for federal, state or local
purposes, or the manner of the operation of any such taxes, so as to
affect the interest of Mortgagee, pay the full amount of such new or
additional taxes.
(46)
<PAGE>
Section 5.8. Permitted Contests.
Notwithstanding anything in this Senior Note Mortgage to the
contrary, Mortgagor, at Mortgagor's expense, may contest (after prior
notice to Mortgagee) by appropriate legal proceedings conducted in
good faith and with due diligence, the amount or validity or
application, in whole or in part, of any Imposition or lien therefor
or any Legal Requirement or Insurance Requirement or the application
of any instrument of record (including, without limitation, any
Superior Instrument Requirement) affecting the Trust Estate or any
part thereof or any claims of holders of F,F&E Financing Agreements,
mechanics, materialmen, suppliers, or vendors or lien therefor, and
may withhold payment of the same pending such proceedings if
permitted by law, or make payment under protest, or defer compliance
with any such Legal Requirement, any such Insurance Requirement or
the terms of any such instrument, and the same shall not be a Default
hereunder; provided, that (a) in the case of any Impositions or lien
therefor or any claims of mechanics, materialmen, suppliers or
vendors or lien therefor, such proceedings shall suspend the
collection thereof from each of Mortgagor, Mortgagee, the Trustee,
the Holders and the Trust Estate, (b) neither the Trust Estate nor
any interest therein would be in any significant danger of being
sold, forfeited, or lost, (c) such action will not result in (i) the
termination of any Facility Lease or (ii) the holder of any Superior
Mortgage having a right to exercise any rights or remedies
thereunder, (d) in the case of a Legal Requirement, neither the
Holders nor Mortgagee shall be in any significant danger of any civil
liability or any danger of any criminal liability, and the failure of
Mortgagor to comply with such Legal Requirement shall not affect the
continuance in good standing of any Permit or result in the
suspension, termination, non-renewal or material adverse modification
of any Permit, and (e) in the case of an Insurance Requirement, the
failure of Mortgagor to comply therewith shall not affect the
validity of any insurance required to be maintained by Mortgagor
hereunder.
Section 5.9. Mechanics' and Other Liens.
Mortgagor shall cause to be removed, either by payment, or
bonding or otherwise, all claims and demands of mechanics,
materialmen, laborers, and others which, if unpaid, might result in,
or permit the creation of, a lien on the Premises and/or Trust Estate
or any part thereof, or on the revenues, rents, issues, income and
profits arising therefrom and in general shall do or cause to be done
everything necessary so that the lien hereof shall be fully
preserved, at the cost of Mortgagor, without expense to Mortgagee.
Section 5.10. To Insure.
(47)
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(a) Mortgagor, at Mortgagor's expense, shall maintain with
Insurers:
(i) insurance with respect to Mortgagor's insurable
properties constituting a part of the Trust Estate against loss
or damage by fire, lightning, and other risks from time to time
included under "all-risk" policies and against loss or damage by
sprinkler leakage, water damage, collapse, malicious mischief
and explosion in respect of any steam and pressure boilers and
similar apparatus located on such insurable properties, in
amounts at all times sufficient to prevent Mortgagor from
becoming a coinsurer within the terms of the applicable
policies, but in any event such insurance shall be maintained in
not less than the greatest of the following (the "Insurance
Amount"): (A) 100% of the then Full Insurable Value of such
insurable properties, determined from time to time (but not less
frequently than once in any 36 calendar months), by an Appraiser
or Insurer, (B) the then Outstanding Amount of Mortgage Debt,
including the Senior Partnership Note, or (C) the amount
required to be maintained pursuant to the Superior Instrument
Requirements;
(ii) war risk insurance as and when such insurance is
obtainable from the United States of America or any agency
thereof as promptly as reasonably practicable after the same
becomes so obtainable, in an amount not less than the Insurance
Amount, or, if such insurance cannot be obtained in an amount
not less than the Insurance Amount, in such lesser amount as may
then be so obtainable;
(iii) comprehensive general liability insurance,
including, without limitation, blanket contractual liability
coverage, broad form property damage, independent contractor's
coverage and personal injury coverage against any and all claims
arising out of or connected with the possession, use,, leasing,
operation or condition of such insurable properties, in an
amount not less than $100,000,000 combined single limit coverage
for personal injury and property damage with respect to any one
occurrence, which may be under an umbrella policy. Anything
contained in this clause (iii) to the contrary notwithstanding,
the Superior Instrument Requirements with respect to the kinds
and amount of insurance described in this clause (iii) shall be
satisfied by Mortgagor;
(iv) workers' compensation insurance to the extent
required by law;
(v) business interruption insurance covering not less than
6 months of loss, provided that, at any time that Mortgagor is
renewing any policy for such insurance or
(48)
<PAGE>
taking out any new or replacement policy for such insurance covering
a period of less than 12 months, Mortgagor shall deliver to Mortgagee
an Officers' Certificate certifying that the period of coverage to be
maintained by Mortgagor under such policy is the maximum that can be
maintained at rates determined by Mortgagor to be reasonable for such
coverage;
(vi) to the extent available, flood insurance in an amount
not less than the Insurance Amount, or, if such insurance cannot
be obtained in an amount not less than the Insurance Amount,
such lesser amount as may then be so obtainable but in no event
less than $100,000,000; and
(vii) such other insurance with respect to such insurable
properties against loss or damage of the kinds (A) from time to
time customarily insured against by persons owning or using
first-class casino and hotel complexes in Atlantic City, New
Jersey and (B) required to be maintained pursuant to any
Superior Instrument Requirements.
Notwithstanding the foregoing, to the extent not violative of
any Superior Instrument Requirements, (A) Mortgagor may maintain a
deductible with respect to the insurance policies described in
clauses (i), (ii), (vi) and (vii) in an amount not to exceed
$250,000, (B) Mortgagor may maintain a deductible with respect to the
insurance policies described in clause (iii) in an amount not to
exceed $500,000, and (C) Mortgagor may maintain a deductible with
respect to the insurance policies described in clause (v) in an
amount not to exceed $1,000,000.
(b) (i) Each policy of insurance maintained by Mortgagor
pursuant to Section 5.10(a) shall, (A) except in the case of workers'
compensation insurance, name Mortgagor as an insured and shall name
as additional insureds (1) Mortgagee and (2) to the extent required
by the Superior Instrument Requirements, the lessors under any
Facility Leases and the holders of the Superior Mortgages, (B)
provide that all insurance proceeds for losses, except in the case of
comprehensive general liability insurance and workers' compensation
insurance or as otherwise provided in Subsections (d), (e) and (f) of
this Section 5.10, be payable solely to Mortgagee (or if such
insurance proceeds are for losses sustained solely to property
covered by a Superior Mortgage, such other party as is required to
receive such proceeds under a Superior Mortgage), (C) include
effective waivers (whether under the terms of any such policy or
otherwise) by the insurer of all claims for insurance premiums
against all loss payees and named insureds (other than Mortgagor) and
all rights of subrogation against any named insured, (D) except in
the case of comprehensive general liability and workers' compensation
insurance, provide that any losses shall be payable notwithstanding
(1) any act, failure to act, negligence of, or
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<PAGE>
violation or breach of warranties, declarations or conditions
contained in such policy by Mortgagor or Mortgagee or any other named
insured or loss payee (including, without limitation, (x) the lessors
under the Facility Leases with respect to any Leased Facilities and
(y) the holder of any Superior Mortgage with respect to the property
encumbered thereby), (2) the occupation or use of the insurable
properties for purposes more hazardous than permitted by the terms of
the policy, (3) any foreclosure or other proceeding or notice of sale
relating to the insurable properties or (4) any change in the title
to or ownership or possession of the insurable properties, (E)
contain a non-contributory mortgagee clause in favor of Mortgagee,
and (F) provide that if all or any part of such policy is cancelled,
terminated or expires, the insurer will forthwith give notice thereof
to each named insured and loss payee and that no cancellation,
non-renewal, reduction in amount or material change in coverage
thereof shall be effective until at least 30 days after receipt by
each named insured and loss payee of written notice thereof.
(ii) Mortgagor may effect the insurance required under this
Section 5.10 under blanket and/or umbrella policies covering
properties owned or leased by Affiliates of Mortgagor; provided, that
(A) such policies otherwise comply with this mortgage, (B) except
with respect to flood insurance and earthquake insurance, provide
that the amount of coverage afforded thereunder with respect to the
Trust Estate shall not be reduced by claims thereunder against such
other properties and (C) in the case of flood insurance provide that
the amount of coverage afforded thereunder with respect to the Trust
Estate shall not be reduced below $100,000,000 by reason of claims
thereunder against such other properties.
(c) Mortgagor shall deliver to Mortgagee duplicate originals of
all insurance policies that Mortgagor is required to maintain
pursuant to this Section 5.10. Mortgagee shall not be responsible
for effecting or renewing any insurance or for the responsibility or
solvency of the insurers.
(d) Mortgagor shall give written notice to Mortgagee
immediately upon obtaining knowledge of any Casualty which (i)
results in damage, loss or destruction in an amount in excess of
$5,000,000 to any buildings or improvements on the Premises and/or
any Tangible Personal Property or (ii) pursuant to any Superior
Instrument Requirement, would require the deposit of insurance
proceeds with the Depositary, or action or proceeding with respect
thereto. Whenever the Superior Instrument Requirements require or
permit the selection of the Depositary by Mortgagor, Mortgagor shall
select the Insurance Trustee as the Depositary. Within 30 days after
any Casualty which results in any damage, loss or destruction in an
amount in excess of $10,000,000 to any buildings or improvements on
the Premises
(50)
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and/or any Tangible Personal Property, Mortgagor shall deliver to
Mortgagee a certificate of an Architect stating whether, in such
Architect's opinion, applicable Legal Requirements permit the
Restoration of said buildings and improvements for the same uses and
to the same size and quality in all material respects, as existed
immediately prior to the Casualty (and if said certificate states
that Legal Requirements do not permit such Restoration, said
certificate shall describe the manner closest approximating such
criteria to which the buildings and improvements could be so restored
and shall be accompanied by a Certificate Of Appraised Value dated
not more than 10 days prior to delivery setting forth the Appraised
Value immediately prior to the Casualty and the estimated Appraised
Value immediately after the Restoration). If Mortgagor is required
to deliver such Certificates of Appraised Value and if based on such
Certificates of Appraised Value immediately after Restoration, (i)
the aggregate Outstanding Amount of Indebtedness of the Mortgagor
immediately after such Restoration shall exceed the greater of (A)
80% of the Appraised Value immediately after such Restoration or (B)
the quotient of the Outstanding Amount of Indebtedness of the
Mortgagor immediately prior to such Casualty divided by the Appraised
Value immediately prior to the Casualty multiplied by the Appraised
Value immediately after such Restoration, or (ii) applicable Legal
Requirements do not permit the Restoration of the Casino Hotel for
use as a casino and hotel complex, then, in either of such events,
the proceeds of any insurance shall not be applied to Restoration but
shall instead be paid and delivered to Mortgagee to the extent of the
then Outstanding Amount of the Senior Partnership Note and any other
interest or other sums due hereunder or thereunder to be applied to
the satisfaction of this Mortgage to the extent proceeds are
available for such purpose and provided that no additional sums are
due to the Trustee or the Holders under the Mortgage Senior
Partnership Notes or the Senior Note Indenture, the balance of any
net insurance proceeds shall be paid to Mortgagor.
(e) Subject to the provisions of Subsection 5.10(d), if a
Casualty occurs, the following shall apply:
(i) If the cost of Restoration is less than $10,000,000,
the net insurance proceeds shall be paid by Mortgagee to
Mortgagor (unless the Superior Instrument Requirements provide
that the same shall be paid to the Depositary).
(ii) If the cost of Restoration is $10,000,000 or more or
if the Superior Instrument Requirements provide that the same
shall be paid to the Depositary, the net insurance proceeds
shall be paid by Mortgagee to the Insurance Trustee (or other
Depositary required by the Superior Instrument Requirements,
provided that such Depositary holds such
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proceeds in trust for purposes of paying the costs of Restoration).
(iii) Mortgagor shall commence with reasonable promptness
under the circumstances and thereafter with due diligence
proceed to perform and complete in a good and workmanlike manner
the restoration, repair, replacement or rebuilding of the damage
or destruction resulting from the Casualty (all such
restoration, repair, replacement and rebuilding following a
Casualty or a Taking are referred to as "Restoration") in
accordance with the plans and specifications submitted to the
Insurance Trustee, in conformance with all Legal Requirements
and Superior Instrument Requirements, and in accordance with the
further provisions of this Subsection (e), regardless of the
extent of any such Casualty and whether or not net insurance
proceeds, if any, shall be available or, if available, shall be
sufficient, for the purpose of the Restoration. All Restoration
work shall be performed in accordance with the applicable
provisions of Section 5.12 and in conformance with all Superior
Instrument Requirements, Legal Requirements and Insurance
Requirements and, prior to commencing any Restoration, Mortgagor
shall obtain all Permits necessary in connection therewith, and
shall obtain, and keep in full force and effect until the
completion of such Restoration, such additional insurance as the
Insurance Trustee and Superior Instrument Requirements may
require. The plans and specifications for the Restoration shall
be accompanied by a Mortgagor's Certificate and an Opinion of
Counsel to the effect that upon the completion of the
Restoration pursuant to the plans and specifications, the
Premises and all buildings and improvements thereon will comply
with all Superior Instrument Requirements, Legal Requirements
and Insurance Requirements.
(iv) Any insurance proceeds which Mortgagor receives shall
be held by Mortgagor in trust for the purpose of paying the cost
of the Restoration, except as otherwise provided herein.
(v) Any net insurance proceeds that the Insurance Trustee
holds pursuant to this Subsection (e), shall be deposited in an
interest-bearing investment reasonably designated by Mortgagor
(to the extent Mortgagor is permitted to designate such
investment under the Superior Instrument Requirements) (and the
interest thereon shall be added to such proceeds) and shall be
paid by the Insurance Trustee to reimburse Mortgagor for, or to
make payment for, the Restoration, after the Insurance Trustee
deducts therefrom the amount of any reasonable costs and
expenses incurred in connection with the performance of its
obligations under this Section 5.10. The Insurance Trustee
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shall make such payments not more frequently than once every 30 days
upon the written request of Mortgagor (unless more frequent payments
are required by Superior Instrument Requirements), by paying to
Mortgagor or the persons named in the certificate described in clause
(vi) of this Subsection (e) the respective amounts stated in such
certificate from time to time as the Restoration progresses, provided
Mortgagor has complied with the requirements of this Subsection (e)
and such payment is permitted by any applicable Superior Instrument
Requirements. Mortgagor's request shall be accompanied by (A) the
certificate described in clause (vi) of this Subsection (e) and (B) a
title company or official search, or other evidence reasonably
acceptable to the Insurance Trustee, showing that there have not been
filed with respect to the Premises, any vendor's, contractor's,
mechanic's, laborer's or materialman's statutory or similar lien
which has not been discharged of record (or bonded against or secured
by other security) or any other encumbrance irrespective of its
priority (other than Permitted Encumbrances).
(vi) The certificate required by clause (v) of this
Subsection (e) shall (A) be a Mortgagor's Certificate,
countersigned by the Architect in charge of the Restoration with
respect to the matters described in (1) and (5) below, (B) be
dated not more than 10 days prior to such request and (C) set
forth (in addition to any other requirements contained in any
applicable Superior Instrument Requirements) that:
(1) all of the Restoration theretofore performed is
in substantial compliance with the plans and specifications
theretofore submitted to the Insurance Trustee and in
compliance with all Superior Instrument Requirements, Legal
Requirements and Insurance Requirements;
(2) the sum then requested either has been paid by
Mortgagor or is justly due to contractors, subcontractors,
materialmen, engineers, architects or other persons who
have rendered services or furnished or contracted to
deliver materials for the Restoration therein specified,
and the names and addresses of such persons, a brief
description of such services and materials and the several
amounts so paid or due to each of said persons in respect
thereof;
(3) no part of the amount requested has been or is
the basis in any previous or then pending request for the
withdrawal of net insurance proceeds, and that the sum then
requested does not exceed the value of the services and
materials described in the certificate;
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(4) except for the amount, if any, stated pursuant to
subclause (2) of this clause (vi) in such certificate to be
due for services or materials, and except for amounts in
dispute and/or customary retainages, there is no
outstanding indebtedness known to the person signing such
certificate, after due inquiry, which is then due for
labor, wages, materials, supplies or services in connection
with such Restoration; and
(5) the remaining cost, as estimated by the persons
signing such certificate, of the Restoration in order to
complete the same does not exceed the net insurance
proceeds remaining in the hands of Insurance Trustee after
payment of the sum requested in such certificate or if such
estimated cost does exceed such insurance proceeds such
certificate shall state the amount of any such deficiency.
If the certificate states that such deficiency will exist,
Mortgagor shall deliver the amount of such deficiency in
cash or cash equivalent to the Insurance Trustee
simultaneously with the delivery of such certificate, which
amount shall be deemed insurance proceeds for purposes of
this Section 5.10(e).
(vii) If net insurance proceeds shall be insufficient to
pay the entire cost of the Restoration, then, after completion
of the Restoration, Mortgagor shall pay the deficiency. If all
or any part of the net insurance proceeds are not used for the
Restoration in accordance with this Subsection (e) (because such
proceeds exceed the amount required to complete the
Restoration), then upon completion of the Restoration in
accordance with this Subsection (e), such amount not so used, if
held by the Insurance Trustee, shall be paid to Mortgagor (if
permitted by Superior Instrument Requirements).
(f) Mortgagor shall not take out separate insurance, concurrent
in form or contributing in the event of loss with that required to be
maintained pursuant to this Section 5.10, unless the same is
permitted by Superior Instrument Requirements. Mortgagor shall
immediately notify Mortgagee whenever any such separate insurance is
taken out and shall promptly deliver to Mortgagee a duplicate
original of the policy of such insurance, a copy thereof certified by
the insurer or a certificate thereof. Provided that no Event of
Default has occurred and is continuing, all net business interruption
insurance proceeds shall be paid to Mortgagor, to be segregated from
the other funds of Mortgagor and held in trust by Mortgagor for the
following purposes and in the following order of priority: (i) for
the payment of Impositions and amounts due under the Facility Leases
and Superior Mortgage, (54)
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(ii) for debt service for the estimated period of Restoration (for
purposes of this Subsection 5.10(f), interest and principal payments
due on any payment date under the Senior Partnership Note will be
deemed to accrue in equal daily installments beginning the day after
the immediately preceding payment date and ending on such payment
date), and (iii) for any other expense incurred in connection with
the operation or business of the Casino Hotel.
(g) Insurance claims by reason of damage or destruction to any
portion of the Trust Estate may be adjusted by Mortgagor, but
Mortgagee shall have the right (but not the obligation) to join
Mortgagor in adjusting, and approving the adjustment of, any such
loss except in the event of a loss where the amount of insurance
reasonably anticipated to be received with respect to such loss is
less than $5,000,000, and Mortgagor shall assist Mortgagee in any
such adjustment at the request of Mortgagee. If Mortgagee at its
election as aforesaid joins Mortgagor in any adjustment process, then
Mortgagee's approval of the adjustment shall not be unreasonably
withheld.
(h) Notwithstanding anything contained herein to the contrary,
if an Event of Default shall have occurred and be continuing,
Mortgagee may, at its option, (A) refrain from paying to Mortgagor or
the Insurance Trustee any net insurance proceeds or (B) instruct the
Insurance Trustee to pay to Mortgagee any insurance proceeds then
held by the Insurance Trustee, as the case may be.
Section 5.11. Limitations on Building Demolition,
Alterations, Improvements and New Construction.
Mortgagor shall not authorize, permit or make any demolition,
alteration or improvement of any building, structure or other
improvements included in the Trust Estate or any new construction on
any part of the Trust Estate, except in conformity with and subject
to the limitations hereinafter in this Section 5.11 set forth and set
forth in the Senior Note Indenture.
Unless an Event of Default shall have occurred and be
continuing, Mortgagor shall have the right at all times to make or
permit such demolition, alterations, improvements or new
construction, structural or otherwise (herein sometimes called
collectively "Alterations" and each, individually, an "Alteration"),
of the Trust Estate, to be made in all cases subject to each of the
following conditions:
(a) No Alteration shall be undertaken or carried out except in
conformity with all Superior Instrument Requirements, Legal
Requirements and Insurance Requirements.
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(b) If the estimated cost of any Alteration, together with
other Alterations that constitute a single construction plan or
project (whether or not accomplished in several stages or
procedures), exceeds $5,000,000, the building or buildings,
structures or other improvements as so improved or altered, upon the
completion of the work, shall be of a value not less than the value
of such building or buildings, structures or other improvements
immediately prior to the making of such Alteration.
(c) Any Alteration which is structural in nature or involves an
estimated cost of more than $5,000,000 shall be conducted under the
supervision of an Architect, and no such Alteration shall be
undertaken until 10 days after there shall have been filed with
Mortgagee detailed plans and specifications and cost estimates
therefor, prepared and approved in writing by such Architect and
accompanied by a certificate of such Architect stating that such
plans and specifications conform to all applicable provisions of this
Section 5.11.
(d) No Alteration involving an estimated cost of more than
$5,000,000 shall be undertaken until Mortgagor has furnished to
Mortgagee, at Mortgagor's sole cost and expense, a surety bond or
bonds, covering performance, and labor and material payments with
respect to the work to be so performed, naming Mortgagee as obligee,
issued by a responsible surety company, authorized to do business in
the State of New Jersey, in a form generally and customarily used by
such surety in an amount equal to the estimated cost of construction
of the work covered by the plans and specifications therefor,
guaranteeing the performance and completion of such construction,
substantially in conformity with the said plans and specifications
and within a reasonable time, subject to delays by fire, strikes,
lock-out, acts of God, inability to obtain labor or materials,
governmental restrictions, enemy action, civil commotion or
unavoidable Casualty or other similar causes beyond the control of
Mortgagor, free and clear of all liens, claims and liabilities for
the cost of such Alterations. If such surety bond or bonds shall be
unobtainable Mortgagor shall deliver to Mortgagee security by cash,
letter of credit or other guarantee, affording substantially the same
protection as would such bond or bonds.
(e) All work done in connection with any Alterations shall be
done promptly and in good and workmanlike manner. The work in
connection with any Alteration shall be prosecuted with reasonable
dispatch, delays due to fire, strikes, lock-outs, acts of God,
inability to obtain labor or materials, governmental restrictions,
enemy action, civil commotion or unavoidable Casualty or similar
causes beyond the control of Mortgagor excepted.
(f) If the estimated cost of Alterations exceeds $5,000,000,
Mortgagor shall have delivered to Mortgagee (i) prior
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to the commencement of such Alterations, copies of all Permits
required for the commencement of such work together with a
certificate of the Architect or an Opinion of Counsel to the effect
that all Permits required for the commencement of such Alterations
have been obtained; and (ii) within a reasonable period of time after
the completion of the Alterations, copies of all Permits required in
connection with the completion thereof, together with either an
Opinion of Counsel or a certificate of the Architect that all such
Permits have been so obtained by Mortgagor and that Mortgagor has
complied with all the requirements of this Section 5.11.
(g) No Alterations of any kind shall be made which shall change
the use or reduce the size or quality of any building, structure or
other improvements in any material respect or which shall change the
use of the Casino Hotel from its use as a gaming and hotel facility.
(h) No Alterations costing in excess of $5,000,000, together
with other Alterations that constitute a single construction plan or
project (whether or not accomplished in several stages or
procedures), shall be made if such Alterations are not expected to be
completed at least 120 days prior to the Stated Maturity of the
Senior Partnership Note (except if such Alterations are required in
order to comply with Legal Requirements or Superior Instrument
Requirements).
(i) Mortgagor shall maintain at all times during the
performance of Alterations, in addition to any insurance required to
be maintained under Section 5.11 hereof, appropriate workers'
compensation insurance covering all persons employed for such
Alterations to the extent required by applicable law, and
comprehensive general liability insurance expressly covering the
additional hazards due to such Alterations. Each such policy of
insurance shall comply with the provisions of Section 5.10(b), and
Mortgagor shall comply with Subsections (c), (d), (e), (f), (g) and
(h) of Section 5.10 in connection with all such insurance.
Section 5.12. Leases.
Mortgagor shall not:
(a) lease the Trust Estate substantially as an entirety to any
Person (except in accordance with the provisions of Article Eight of
the Senior Note Indenture), nor shall Mortgagor lease either the
Casino Hotel or the Casino or the Hotel or any parking facilities
substantially as an entirety to any Person;
(b) enter into any Lease, or renew, modify, extend, terminate,
or amend any Lease, except in the ordinary course of business of
operating the Casino Hotel;
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(c) receive or collect, or permit the receipt or collection of,
any rental payments under any Lease more than one month in advance of
the respective periods in respect of which they are to accrue, except
that, in connection with the execution and delivery of any Lease or
of any amendment to any Lease, rental payments thereunder may be
collected and received in advance in an amount not in excess of three
months' rent and/or a security deposit may be required thereunder in
an amount not exceeding one year's rent;
(d) collaterally assign, transfer or hypothecate (other than to
Mortgagee hereunder, to the holder of the Senior Note Guarantee
Mortgage or to the holder of the Superior Mortgage, but in each case
only with respect to the property secured by such mortgage) (i) any
rental payment under any Lease whether then due or to accrue in the
future, (ii) the interest of Mortgagor as landlord under any Lease or
(iii) the rents, issues or profits of the Trust Estate;
(e) after the date hereof, enter into any Lease, or renew any
Lease, unless such Lease contains terms to the effect as follows:
(i) the Lease and the rights of the tenants thereunder
shall be subject and subordinate to the rights of Mortgagee
under this Mortgage and the holders of the Superior Mortgage,
(ii) the Lease may be assigned by the landlord thereunder
to Mortgagee, and
(iii) the rights and remedies of the tenant in respect of
any obligations of the landlord thereunder shall be nonrecourse
as to any assets of the landlord other than its equity in the
building in which the leased premises are located or the
proceeds thereof; or
(f) modify any Lease with respect to the matters described in
clauses (i) through (iii) of paragraph (e).
If Mortgagor enters into a Lease (other than with an Affiliate
of Mortgagor) for a term of not less than 3 years, Mortgagee shall
deliver a non-disturbance and attornment agreement substantially in
the form of Schedule 7 hereto, following receipt of a certificate of
a leasing broker (who is not an Affiliate of Mortgagor or the broker
involved in such transaction) experienced with respect to leases of
commercial space in the Atlantic City area stating that the rent
under the Lease throughout the term thereof is not less than fair
market rent and the other terms of the Lease are fair and reasonable
in the commercial leasing market. Mortgagor shall, upon demand,
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reimburse Mortgagee for any costs and expenses (including reasonable
attorneys' fees and disbursements) incurred by Mortgagee in
connection with the preparation, review and delivery of such
non-disturbance and attornment agreements.
Promptly after the execution and delivery hereof, Mortgagor
shall cause the lessee under each Lease now in effect, and promptly
after each Lease is executed or becomes effective after the date of
the execution and delivery hereof, Mortgagor shall cause the lessee
under each such Lease, to be duly notified in writing (unless the
substance and effect of such notice shall be contained in such Lease)
of the subjection of the owner's interest, as lessor, in and to such
Lease to the lien of this Mortgage and of the name and address of
Mortgagee. Each such notice shall state that the lease of such
lessee is a Lease as herein defined. If a new Mortgagee is at any
time appointed hereunder or the address of Mortgagee shall at any
time be changed, Mortgagor shall cause each lessee under each Lease
to be promptly notified in writing of the name and address of such
new Mortgagee or the new address of Mortgagee. Mortgagor shall use
reasonable efforts (but shall not be obligated to incur any
expenditure other than de minimis amounts) to obtain from each lessee
under each Lease to whom any notice is sent pursuant to this
paragraph an acknowledgment of receipt of such notice, and Mortgagor
shall promptly deliver to Mortgagee,, upon request, a copy of each
such acknowledgment of receipt which it is able to obtain. Mortgagee
shall not be responsible for securing or causing Mortgagor to secure
any such acknowledgment.
Section 5.13. Compliance Certificates.
Mortgagor shall deliver to Mortgagee, within 120 days after the
end of each fiscal year of Mortgagor, a Mortgagor's Certificate
stating that
(a) a review of the activities of Mortgagor during such year
and of performance under this Mortgage has been made under the
signer's supervision, and
(b) to the best of each signer's knowledge, based on such
review, Mortgagor has fulfilled all of Mortgagor's obligations under
this Mortgage throughout such year, or, if there has been a default
in the fulfillment of any such obligation, specifying each such
default known to him and the nature and status thereof.
Promptly after Mortgagor may reasonably be deemed to have
knowledge of a default hereunder, Mortgagor shall deliver to
Mortgagee a notice specifying the nature and period of existence
thereof and the action Mortgagor is taking and proposes to take with
respect thereto.
Section 5.14. To Keep Books; Inspection by Mortgagee.
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Mortgagor will keep proper books of record and account, in which
full and correct entries shall be made of all dealings or
transactions of or in relation to the Senior Partnership Note and the
properties, business and affairs of Mortgagor in accordance with
generally accepted accounting principles consistently applied. Said
books shall be maintained in an office located either in Atlantic
City, New Jersey or in the Borough of Manhattan, City of New York,
State of New York. Mortgagor shall at any and all times, upon
request of Mortgagee and at the expense of Mortgagor, permit
Mortgagee and its representatives to inspect the Casino Hotel and any
other buildings, structures and improvements now or hereafter located
on the Land and the books of account, records, reports and other
papers of Mortgagor, and to make copies and extracts therefrom, and
will afford and procure a reasonable opportunity to make any such
inspection (provided, that any such inspection shall not unreasonably
interfere with the business operations of Mortgagor), and Mortgagor
will furnish to Mortgagee any and all information as Mortgagee may
reasonably request, with respect to the performance by Mortgagor of
its covenants in this Mortgage.
Section 5.15. Advances by Mortgagee.
If Mortgagor shall fail to perform any of the covenants, terms,
provisions or conditions contained in this Mortgage and such failure
shall continue for 10 days following notice thereof given by
Mortgagee (or at any time, without notice, in case of emergency),
Mortgagee may (but is not obligated to), at any time and from time to
time, take any action or make advances, to effect performance of any
such covenant, term, provision or condition on behalf of Mortgagor;
and all moneys so used, paid or advanced by Mortgagee and all
reasonable costs and expenses incurred by Mortgagee in connection
therewith, together with interest on all of the same at the rate of
interest set forth in the Senior Partnership Note, shall be
immediately due and payable by Mortgagor to Mortgagee and all such
moneys, costs and expenses shall be secured by the lien of this
Mortgage prior to the Senior Partnership Note. No such advance or
payment by Mortgagee shall relieve Mortgagor from any default
hereunder or impair any right or remedy of Mortgagee.
Section 5.16. Waiver of Stay, Extension or Usury Laws.
Mortgagor covenants (to the extent that it may lawfully do so)
that it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any usury, stay
or extension law or any other law which would prohibit or forgive
Mortgagor from paying all or any portion of the obligations secured
by this Mortgage, wherever enacted, now or at any time hereafter in
force, or which may otherwise affect the covenants or the performance
of this Mortgage; and Mortgagor
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(to the extent that it may lawfully do so) hereby expressly waives
all benefit or advantage of any such law, and covenants that it shall
not hinder, delay or impede the execution of any power herein granted
to Mortgagee, but shall suffer and permit the execution of every such
power as though no such law had been enacted.
Section 5.17. Eminent Domain.
(a) Mortgagor shall notify Mortgagee immediately upon obtaining
knowledge of any Taking affecting the Trust Estate or any part
thereof. If the Taking is a Taking of less than the whole or
substantially all of the Premises but (i) is estimated to result in
an award of more than $10,000,000 or (ii) the Taking will interfere
with or adversely affect the operation of the Casino Hotel (other
than any portion thereof consisting solely of unimproved, paved or
unpaved surface parking) other than to a de minimis extent, then
within 30 days after such Taking, Mortgagor shall deliver to
Mortgagee a certificate of an Architect stating whether, in such
Architect's opinion, applicable Legal Requirements permit the
Restoration of any buildings and improvements for the same uses and
to the same size and quality in all material respects as existed
immediately prior to the Taking (and if said certificate states that
Legal Requirements do not permit such Restoration, said certificate
shall describe the manner closest approximating such criteria to
which the buildings and improvements could be so restored and shall
be accompanied by a Certificate of Appraised Value dated not more
than 10 days prior to delivery setting forth the Appraised Value
immediately prior to the Taking and the estimated Appraised Value
immediately after the permitted Restoration). If Mortgagor is
required to deliver such Certificate of Appraised value and if based
on such Certificate of Appraised Value immediately after Restoration,
(i) the Outstanding Amount of Indebtedness of the Partnership
immediately after such Restoration shall exceed the greater of (A)
80% of the Appraised Value immediately after such Restoration or (B)
the quotient of the Outstanding Amount of Indebtedness of the
Partnership immediately prior to such Taking divided by the Appraised
Value immediately prior to the Taking multiplied by the Appraised
Value immediately after such Restoration, or (ii) applicable Legal
Requirements do not permit the Restoration of the Casino Hotel for
use as a casino and hotel complex, then, in any of such events, the
Taking shall be deemed a Taking of "the whole or substantially all of
the Premises." The Taking shall be deemed a Taking of "less than the
whole or substantially all of the Premises" if Mortgagor is not
required to deliver a Certificate Of Appraised Value or if, at the
time of delivery of such Certificate, neither of the tests set forth
in clauses (i) and (ii) is met.
(b) If at any time there shall occur a Taking of less than the
whole or substantially all of the Premises and the award or
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awards resulting therefrom payable to Mortgagor (and not to any
lessor under any Facility Lease or the holder of any Superior
Mortgage) (after there shall have been first deducted the fees and
expenses incurred in connection with the termination, settlement and
collection of such award or awards, including, without limitation,
reasonable counsel fees and expenses, hereinafter referred to as
"Settlement Costs") (i) shall be less than $10,000,000 (except to the
extent that the Insurance Trustee or a Depositary is required to hold
such amount pursuant to a Superior Instrument Requirement), the
entire amount of such award shall be paid to Mortgagor; and (ii) if
such award is $10,000,000 or more, the entire amount of such award
shall be paid to the Insurance Trustee (or other Depositary required
by a Superior Mortgage, provided that such Depositary holds such
award in trust for purposes of paying the cost of Restoration). In
either event, such awards shall be applied to the cost of Restoration
of the Trust Estate as nearly as practicable to their uses, value and
condition immediately prior to the Taking (except to the extent
otherwise provided by Superior Instrument Requirements). Mortgagor
shall promptly commence and with due diligence perform the
Restoration in accordance with clauses (iii), (iv) and (vii) of
Subsection 5.10(e) (after substituting the words "Taking" for
"Casualty" and "award" for "net insurance proceeds"), at no cost to
Mortgagee. All claims or suits arising out of any Taking may be
settled by Mortgagor, except that Mortgagee shall have the right (but
not the obligation) to participate in such claim or suit, and to
approve settlement thereof (and notwithstanding anything in the
Facility Leases to the contrary, Mortgagor shall not agree to any
settlement or compromise of the amount of any such claim or suit,
except a claim or suit where the amount reasonably anticipated to be
received by Mortgagor is less than $5,000,000). If Mortgagee at its
election as aforesaid joins such claim or suit, Mortgagee's approval
of such settlement shall not be unreasonably withheld. The Insurance
Trustee shall promptly pay such sums as are received by it from such
Taking from time to time in accordance with the procedures set forth
in clauses (v) and (vi) of Subsection 5.10(e) (after substituting the
words "Taking" for "Casualty" and "award" for "net insurance
proceeds").
(c) If at any time there shall occur a Taking of the whole or
substantially all of the Premises, then the award payable to
Mortgagor shall not be applied to Restoration but shall instead be
paid and delivered to the Trustee (subject to the rights of the
lessors under any Facility Leases and the holders of any Superior
Mortgages) to the extent of the then Outstanding Amount of the Senior
Partnership Note and any other interest or other sums due hereunder
or thereunder to be applied to the satisfaction of this Mortgage to
the extent proceeds are available for such purpose and provided that
no additional sums are due the Trustee or the Holders under the
Mortgage Senior
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Partnership Notes or the Senior Note Indenture, the balance of any
award shall be paid to Mortgagor.
(d) Notwithstanding anything contained herein to the contrary,
if an Event of Default shall have occurred and is continuing,
Mortgagee may, at its option, (i) refrain from paying to Mortgagor or
the Insurance Trustee any award or (ii) instruct the Insurance
Trustee to pay to Mortgagee any award then held by the Insurance
Trustee, as the case may be.
Section 5.18. Facility Leases.
(a) Mortgagor shall do or cause to be done all things necessary
to preserve and keep unimpaired the rights of Mortgagor, as lessee
under all Facility Leases, and, to prevent any termination,
surrender, cancellation, forfeiture or impairment of any thereof.
Mortgagor shall at all times fully perform and comply with all
agreements, covenants, terms and conditions imposed upon or assumed
by it as lessee under each of the Facility Leases (including, without
limitation, the covenant to pay rent and all taxes, assessments and
other charges mentioned therein) prior to the expiration of any
notice and/or cure period provided in each such Facility Lease. Upon
receipt by Mortgagee from a Lessor of any written notice of default
by the lessee thereunder, Mortgagee may rely thereon and take any
action Mortgagee deems necessary in its sole discretion to prevent or
to cure any default by Mortgagor in the performance of or compliance
with any of the agreements, covenants, terms or conditions imposed
upon or assumed by Mortgagor as lessee under such Facility Lease,
even though the existence of such default or the nature thereof be
questioned or denied by Mortgagor or by any party on behalf of
Mortgagor. Without limiting the generality of Section 3.9, Mortgagor
hereby expressly grants to Mortgagee, and agrees that Mortgagee shall
have, the absolute and immediate right to enter in and upon the
Premises or any part thereof to such extent and as often as
Mortgagee, in its sole discretion, deems necessary or desirable for
the purpose permitted by the immediately preceding sentence, subject
only to applicable Legal Requirements. Without limiting Mortgagor's
obligations or Mortgagee's rights set forth above or limiting
Mortgagee's other remedies under this Mortgage, Mortgagee may pay and
expend such sums of money as Mortgagee in its sole discretion deems
necessary for any such purpose, and Mortgagor hereby agrees to pay to
Mortgagee immediately and without demand, all such sums referred to
above, so paid and expended by Mortgagee, together with interest
thereon from the date of each such payment at the highest rate of
interest set forth in the Senior Partnership Note. All sums so paid
and expended by Mortgagee, and the interest thereon, shall be added
to and be secured by the lien of this Mortgage.
(b) Mortgagor further covenants and agrees as follows:
(63)
<PAGE>
(i) Mortgagor shall not surrender, terminate or cancel any
Facility Lease, and shall not without the consent of Mortgagee
modify, change, supplement, alter or amend any Facility Lease
either orally or in writing if an impairment of the security
granted under this Mortgage would result therefrom. As further
security for the repayment of the indebtedness secured hereby
and for the performance of the covenants herein and in each
Facility Lease contained, Mortgagor hereby assigns to Mortgagee
all of Mortgagor's rights, privileges and prerogatives as lessee
under each Facility Lease to terminate, cancel, modify, change,
supplement, alter or amend such Facility Lease and any such
termination, cancellation, modification, change, supplement,
alteration or amendment of a Facility Lease without the prior
consent thereto by Mortgagee shall be void and of no force and
effect. Unless (1) an Event of Default has occurred and is
continuing and (2) either (A) there has been an acceleration of
maturity of the Senior Partnership Note pursuant to Section 3.2
or (B) Mortgagee exercises its rights under Section 3.9,
Mortgagee shall have no right to terminate, cancel, modify,
change, supplement, alter or amend any Facility Lease.
(ii) Solely for the benefit of Mortgagee, Trustee, the
Holders and no other person, no release or forbearance of any of
Mortgagor's obligations under any Facility Lease, pursuant to
such Facility Lease or otherwise, shall release Mortgagor from
any of Mortgagor's other obligations under this Mortgage.
(iii) Unless Mortgagee shall otherwise expressly consent
in writing, the fee title to the Leased Facilities and
Mortgagor's leasehold estates therein shall not merge and shall
always remain separate and distinct, notwithstanding the union
of said estates either in the Lessor or in the lessee, or in a
third party by purchase or otherwise
(iv) Mortgagor shall promptly notify Mortgagee in writing
of any request made by Mortgagor, as lessee under any Facility
Lease, or any of the Lessors, for arbitration proceedings under
any Facility Lease and of the institution of any arbitration
proceedings, as well as all proceedings thereunder. Mortgagor
shall promptly deliver to Mortgagee a copy of the determination
of the arbitrators in each such arbitration proceeding.
Mortgagee shall have the right to participate in such
arbitration proceedings in association with Mortgagor or on its
own behalf as an interested party.
(64)
<PAGE>
(v) Mortgagor shall not consent to the subordination of
any Facility Lease to any mortgage, deed of trust or other lien
on the fee interest of the Lessor.
(vi) If Mortgagor acquires fee simple title or any other
estate, title or interest in any Leased Facility, Mortgagor
shall promptly notify Mortgagee of such acquisition and, on
request by Mortgagee, shall cause to be executed and recorded
all such other and further assurances or other instruments in
writing as may in the opinion of Mortgagee be required or
desirable to carry out the intent and meaning of clause (x) of
Granting Clause Third.
(vii) Within 5 days after Mortgagor's receipt of any
notice of any motion, application or effort to reject any
Facility Lease by any Lessor or any trustee arising from or in
connection with any case, proceeding or other action commenced
or pending by or against any Lessor under the Code or any
comparable provision contained in any present or future federal,
state, local, foreign or other statute, law, rule or regulation
("Comparable Provision"), Mortgagor shall give notice thereof to
Mortgagee. Mortgagor hereby (A) assigns to Mortgagee any and
all of Mortgagor's rights as lessee under Section 365(h) of the
Code or any Comparable Provision and (B) covenants that it shall
not elect to treat any Facility Lease as terminated pursuant to
Section 365(h) of the Code or any Comparable Provision without
the prior consent of Mortgagee and (C) agrees that any such
election by Mortgagor without such consent shall be null and
void.
(viii) Without limiting the generality of the foregoing,
to the extent permitted by applicable law, Mortgagor hereby
unconditionally assigns, transfers and sets over to Mortgagee
all of Mortgagor's claims and rights to the payment of damages
arising from any rejection by Lessor of any Facility Lease under
the Code or any Comparable Provision. Mortgagee shall have the
right to proceed in its own name or in the name of Mortgagor in
respect of any claim, suit, action or proceeding relating to the
rejection of any Facility Lease, including, without limitation,
the right to file and prosecute, in cooperation with Mortgagor,
any proofs of claim, complaints, motions, applications, notices
and other documents, in any case in respect of Lessor under the
Code or any Comparable Provision. This assignment constitutes a
present, irrevocable and unconditional assignment of the
foregoing claims, rights and remedies, and shall continue in
effect until all of the indebtedness and obligations secured by
this Mortgage shall have been satisfied and discharged in full.
Any amounts received by Mortgagee in damages arising out of the
rejection of any Facility Lease as aforesaid shall be applied
first to all reasonable costs and expenses of
(65)
<PAGE>
Mortgagee (including, without limitation, reasonable attorneys' fees,
disbursements and court costs) incurred in connection with the
exercise of any of its rights or remedies under this Section 5.18,
and thereafter as provided in Section 3.3.
(ix) If there shall be filed by or against Mortgagor a
petition under the Code or any Comparable Provision and
Mortgagor, as lessee under any Facility Lease, shall determine
to reject such Facility Lease, Mortgagor shall give Mortgagee
not less than 10 days' prior notice of the date on which
Mortgagor shall apply to the Bankruptcy Court or other judicial
body with appropriate jurisdiction for authority to reject such
Facility Lease. Mortgagee shall have the right, but not the
obligation, to serve upon Mortgagor within such 10-day period a
notice stating that (a) Mortgagee demands that Mortgagor assume
and assign such Facility Lease to Mortgagee pursuant to Section
365 of the Code or any Comparable Provision and (b) Mortgagee
covenants to cure or provide adequate assurance of prompt cure
of all defaults and provide adequate assurance of future
performance under such Facility Lease. If Mortgagee serves upon
Mortgagor the notice described in the preceding sentence,
Mortgagor shall not seek to reject such Facility Lease and shall
comply with the demand provided for in clause (a) of the
preceding sentence within 30 days after the notice shall have
been given subject to the performance by Mortgagee of the
covenant provided for in clause (b) of the preceding sentence.
The foregoing provisions of this Section 5.18(ix) shall not
apply to the extent not permitted by applicable law. Effective
upon the entry of an order for relief in respect of Mortgagor
under Chapter 7 of the Code or any Comparable Provision,
Mortgagor hereby assigns and transfers to Mortgagee a
non-exclusive right to apply to the Bankruptcy Court or other
judicial body with appropriate jurisdiction for an order
extending the period during which such Facility Lease may be
rejected or assumed.
(x) Mortgagor shall promptly give to Mortgagee copies of
(A) all notices of default and (B) any other communications or
notices with respect to events that relate to the possible
impairment of the security of this Mortgage, which Mortgagor
shall give or receive under any Facility Lease and shall
promptly notify Mortgagee of any default under any Facility
Lease on the part of the Lessor or Mortgagor.
(xi) Mortgagor shall enforce with due diligence all of the
obligations of the Lessor under each Facility Lease, to the end
that Mortgagor may enjoy all of the rights and privileges
granted to it under the Facility Leases.
(66)
<PAGE>
(xii) Mortgagor shall notify Mortgagee within 5 days after
the transfer of a fee interest in any Leased Facility or any
portion thereof to or from an Affiliate.
(xiii) No Affiliate of Mortgagor shall at any time
hereafter acquire fee title to the Leased Land or any portion
thereof unless simultaneously with such acquisition such
Affiliate and Mortgagor execute and exchange (and deliver to the
Trustee an executed counterpart of) an instrument in form and
substance satisfactory to Mortgagee providing that so long as
such Affiliate owns such fee title (A) such Affiliate shall not
terminate the applicable Facility Lease for any reason
whatsoever (including, without limitation, due to the default of
Mortgagor under such FacilitY Lease) and (B) such Affiliate
shall not accept, and, if tendered by Mortgagor shall promptly
return to Mortgagor, any payment of rent or other charges
payable under such Facility Lease in excess of the amount
required to pay the debt service and other sums payable under
any mortgage affecting such Affiliate's fee interest in the
applicable Leased Facility (and such Affiliate shall use such
funds only to pay its debt service obligations and other sums
payable under such mortgage) at any time that an Event of
Default, or a Default of the types described in Section 3.1(a),
(b) and (f) of this Mortgage or Section 5.1(a), (b), (f) or (g)
of the Senior Note Indenture, shall have occurred and be
continuing under this Mortgage or the Senior Note Indenture.
(c) Subject to the provisions of Subsection 5.18(b)(iii), if
both the lessor's and lessee's estates under any Facility Lease or
any portion thereof shall at any time become vested in one owner,
this Mortgage and the lien created hereby shall nevertheless not be
destroyed or terminated by application of the doctrine of merger and,
in such event, Mortgagee shall continue to have all of the rights and
privileges of a first leasehold mortgagee.
(d) Mortgagor hereby acknowledges that if any Facility Lease
shall be terminated prior to the natural expiration of its term due
to default by the lessee thereunder, and if pursuant to such Facility
Lease, Mortgagee or its designee shall acquire from the Lessor a new
lease of the Leased Facility or any portion thereof, Mortgagor shall
have no right, title or interest in or to such lease or the leasehold
estate created thereby, or the options therein contained.
(e) Each Facility Lease hereafter entered into or assumed by
Mortgagor as lessee or sublessee shall contain provisions (i)
permitting the assignment of the same to Mortgagee and the Trustee
and permitting assignment without the lessor's consent if this
Mortgage is foreclosed; and (ii) providing protection to
(67)
<PAGE>
Mortgagee, as leasehold mortgagee, in form reasonably satisfactory to
Mortgagee.
Section 5.19. Superior Mortgage.
(a) Mortgagor shall at all times fully perform and comply with
all agreements, covenants, terms and conditions imposed upon or
assumed by it as mortgagor under the Superior Mortgage prior to the
expiration of any notice and/or cure period provided in each such
Superior Mortgage. If a notice of default has been given by the
holder of the Superior Mortgage, Mortgagee may rely thereon and take
any action Mortgagee deems necessary in its sole discretion to
prevent or to cure any default by Mortgagor in the performance of or
compliance with any of the agreements, covenants, terms or conditions
imposed upon or assumed by Mortgagor as mortgagor under the Superior
Mortgage even though the existence of such default or the nature
thereof be questioned or denied by Mortgagor or by any party on
behalf of Mortgagor. Without limiting the generality of Section 3.9,
Mortgagor hereby expressly grants to Mortgagee, and agrees that
Mortgagee shall have, the absolute and immediate right to enter in
and upon the Premises or any part thereof to such extent and as often
as Mortgagee, in its sole discretion, deems necessary or desirable
for the purpose permitted by the immediately preceding sentence,
subject only to applicable Legal Requirements. Without limiting
Mortgagor's obligations or Mortgagee's rights set forth above or
limiting Mortgagee's other remedies under this Mortgage, Mortgagee
may (i) pay and expend such sums of money as Mortgagee in its sole
discretion deems necessary or desirable for any such purpose and (ii)
in its sole discretion prepay the Superior Mortgage then in default,
and Mortgagor hereby agrees to pay to Mortgagee immediately and
without demand, all such sums referred to in (i) and (ii) above so
paid and expended by Mortgagee, together with interest thereon from
the date of each such payment at the highest rate of interest set
forth in the Senior Partnership Note. All sums so paid and expended
by Mortgagee and the interest thereon, shall be added to and be
secured by the lien of this Mortgage.
(b) Mortgagor further covenants and agrees:
(i) Mortgagor shall not, without first obtaining the
consent of Mortgagee in each instance: (A) modify, replace or
refinance the Superior Mortgage if (x) the collateral securing
the lien thereof would be increased thereby (other than after-
acquired property required by the terms of the Superior Mortgage
to be encumbered thereby) or (y) such modification, replacement
or refinancing violates any other provision of this Senior Note
Mortgage or the Senior Note Indenture or (B) acquire or permit
or suffer any Affiliate of Mortgagor to acquire the Superior
Mortgage or any Interest therein;
(68)
<PAGE>
(ii) Mortgagor shall timely pay and perform all of the
obligations to be paid or performed by the mortgagor under the
Superior Mortgage, the note secured thereby and any other
instrument evidencing or securing the indebtedness owing to any
holder of the Superior Mortgage;
(iii) at any time and from time to time, Mortgagor shall
upon request of Mortgagee promptly use its reasonable efforts to
obtain an estoppel certificate or letter addressed to Mortgagee
from the holder of the Superior Mortgage, such certificate or
letter to be in such form as Mortgagee shall reasonably request;
(iv) Mortgagor shall promptly give to Mortgagee copies of
(A) all notices of default or (B) any other notice or
communication with respect to events which relate to the
possible impairment of the security of this Mortgage, which
Mortgagor shall give or receive under the Superior Mortgage and
shall promptly notify Mortgagee of any default under the
Superior Mortgage on the part of Mortgagor.
Section 5.20. Indemnification.
Mortgagor shall protect, indemnify, hold harmless and defend
Mortgagee and its directors, officers, partners, shareholders,
agents, servants and employees from and against any and all
liabilities, obligations, claims, damages, penalties, causes of
action, costs and expenses (including, without limitation, reasonable
attorneys' fees, disbursements and court costs), imposed upon or
incurred by or asserted against Mortgagee by reason of (a) any injury
to or death of Persons or loss of or damage to property occurring on
or about the Premises or any part thereof or the adjoining sidewalks,
curbs, vaults and vault spaces, if any, streets, alleys or ways, (b)
any use, nonuse or condition of the Premises or any part thereof or
the adjoining sidewalks, curbs, vaults and vault spaces, if any,
streets, alleys or ways, (c) any failure on the part of Mortgagor to
perform or comply with any of the terms of this Mortgage, (d)
performance of any labor or services or the furnishing of any
materials or other property in respect of the Premises or any part
thereof made or suffered to be made by or on behalf of Mortgagor, (e)
any negligence or tortious act on the part of Mortgagor or any of its
agents, contractors, lessees, licensees or invitees, or (f) any work
in connection with the Premises; provided, that no amounts shall be
payable to Mortgagee under this Section 5.20 in respect of
liabilities, obligations, claims,<PAGE>
(69)
<PAGE>
damages, penalties, causes of action, costs or expenses imposed upon
or incurred by or asserted against Mortgagee to the extent the same
result from any negligence or tortious act on the part of Mortgagee
or any of its agents, contractors, lessees, licensees or invitees.
All amounts payable to Mortgagee under this Section 5.20 shall be
payable on demand; provided, that with respect to consequential
damages (other than attorneys' fees, disbursements and court costs
imposed upon or incurred by Mortgagee in connection therewith, which
shall in all events be payable on demand), no such amounts shall be
payable until, and to the extent that, (i) there has been entered the
final determination of a court of competent jurisdiction awarding
such consequential damages to the party or parties seeking such
damages or (ii) an agreement of settlement with respect thereto
(which shall have been previously approved by Mortgagor, such consent
not to be unreasonably withheld) shall have been executed by
Mortgagee and such party or parties. Any such amounts which are not
paid within 5 days after demand therefor by Mortgagee shall bear
interest at the rate set forth in the Senior Partnership Note from
the date of such demand and all such amounts and interest thereon
shall be secured by the lien of this Mortgage. In case any action,
suit or proceeding is brought against Mortgagee by reason of any such
occurrence, Mortgagor, upon request of Mortgagee, shall, at
Mortgagor's expense, resist and defend such action, suit or
proceeding or cause the same to be resisted or defended by counsel
designated by Mortgagor and approved by Mortgagee, which approval
shall not be unreasonably withheld; provided, that Willkie, Farr &
Gallagher is hereby approved by Mortgagee.
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed and attested, all as of the day and
year first above written.
TRUMP'S CASTLE ASSOCIATES
Witness: ____________________ By: _________________________
Name:
Title:
TRUMP'S CASTLE FUNDING, INC.
Witness: ____________________ By: _________________________
Name:
Title:
(70)
<PAGE>
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the _____ day of December, 1993, before me personally came
Donald J. Trump, to me known, who, being by me duly sworn, did depose
and say that he resides at 721 Fifth Avenue, New York, New York; that
he is President of Trump's Castle Funding, Inc., one of the
corporations described in and which executed the above instrument;
that he knows the corporate seal of such corporation; that the seal
affixed to said instrument is such corporate seal; that it was so
affixed pursuant to authority of the Board of Directors of such
corporation; and that he signed his name thereto pursuant to like
authority.
(NOTARIAL SEAL)
_________________________
(71)
<PAGE>
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the _____ day of December, 1993, before me personally came
Donald J. Trump, to me known, who, being by me duly sworn, did depose
and say that he resides at 721 Fifth Avenue, New York, New York; that
he is President of Trump's Castle Funding, Inc., one of the
corporations described in and which executed the above instrument;
that he knows the corporate seal of such corporation; that the seal
affixed to said instrument is such corporate seal; that it was so
affixed pursuant to authority of the Board of Directors of such
corporation; and that he signed his name thereto pursuant to like
authority.
(NOTARIAL SEAL)
_________________________
(72)
<PAGE>
<PAGE>
SCHEDULE 1
OWNED LAND
All the real property located in the City of Atlantic City, County of
Atlantic, State of New Jersey and more particularly described as
follows:
Hotel Parcel:
All that certain real property hereinafter particularly described
situate, lying and being in the City of Atlantic City, County of
Atlantic and State of New Jersey.
BEGINNING at the point of intersection of the Northwesterly line of
Huron Avenue (100 feet wide) and the Northeasterly line of the
Atlantic - Brigantine Boulevard, said Boulevard also known as State
Highway Route 87, and extending thence
1. North 45 degrees 50' 06" West in and along the Atlantic-
Brigantine Boulevard, 56.63'; thence
2. North 19 degrees 16' 38" East, still in and along said
Boulevard, 81.94' to a point of curve; thence
3. Curving to the right in the arc of a circle having a radius
of 783.00', the arc length of 72.815' to a point of reverse curve;
thence
4. Curving to the left in the arc of a circle having a radius
of 837.00', the arc length of 77.836' to another point of reverse
curve; thence
5. Curving to the right in the arc of a circle having a radius
of 2946.00', the arc length of 1017.42' to a point; thence
6. North 44 degrees 34' 15" East, 135.02' to a point of curve;
thence
7. Curving to the right in the arc of a circle having a radius
of 2936.00', the arc length of 105.48' to a point; thence
8. South 27 degrees 28' 00" East, at right angles to Huron
Avenue 842.02' to the northwesterly line of Huron Avenue; thence
9. South 62 degrees 32' 00" West, in and along the
northwesterly line of Huron Avenue, 1229.40 feet to the point and
place of BEGINNING.
EXCEPTING THEREOUT AND THEREFROM the property which was conveyed to
the State of New Jersey by the Deed recorded in Deed Book 3980 page
180 and in Deed Book 4031 page 299.
BEING ALSO KNOWN AND DESIGNATED as Lot 9 in Block H-19 on the Tax Map
of the City of Atlantic City.
PARKING FACILITIES PARCEL
BEGINNING at a point in Beach Thorofare at the easterly corner of the
parcel of lands containing an area of 6.199 acres more or less which
was conveyed by the West Jersey and Seashore Railroad Company to the
Press Union Publishing Company by deed dated January 9, 1940, and
recorded January 17, 1940 in Deed Book 1099 page 420, said beginning
point being South 24 degrees 54 minutes 00 seconds West, a distance
of 100.16 feet from a monument set in the southeasterly line of
Absecon Boulevard (also known as U.S. Route 30) (190 feet wide), and
extending from said beginning point; thence,
(1) In Beach Thorofare, South 24 degrees 54 minutes 00 seconds West,
a distance of 259.81 feet to a point; thence
(2) Continuing in and along same, South 44 degrees 54 minutes 00
seconds West, a distance of 445.50 feet to a point; thence,
(3) Continuing in and along same, South 72 degrees 24 minutes 00
seconds West a distance of 224.40 feet to a point; thence
(4) Continuing in and along same, North 68 degrees 21 minutes 00
seconds West, a distance of 478.50 feet to a point; thence
(5) Continuing in and along same, North 76 degrees 06 minutes 00
seconds West, a distance of 363.00 feet to a point; thence
(6) Continuing in and along same, South 82 degrees 39 minutes 00
seconds West, a distance of 429.00 feet to a point; thence,
(7) Continuing in and along same, North 17 degrees 59 minutes 20
seconds East, a distance of 320.65 feet to a point located in
the approximate high water line of Beach Thorofare, said point
also being a corner of lands now or formerly in Daniel Adams, et
al, as recorded in Deed Book CC Page 272; thence,
(8) North 39 degrees 01 minutes 00 seconds West, leaving Beach
Thorofare, in and along the line of lands now or formerly of
Daniel Adams, et al, a distance of 1089.00 feet to a point in
the southeasterly line of lands now or formerly of Lot 307 in
Block 201 as shown on the current official tax map for the City
of Atlantic City, said point also being a corner to lands now or
formerly of Daniel Adams, et al; thence,
(9) North 57 degrees 59 minutes 00 seconds East, in and along the
said lands, a distance of 1113.19 feet to a point in the
aforesaid southwesterly line of Absecon Boulevard; thence,
(10) South 22 degrees 46 minutes 10 seconds East, in and along same,
a distance of 185.42 feet to a point of curve; thence,
(11) Southeastwardly, in and along same and in the arc of a circle
curving to the left having a radius of 1527.69 feet the arc
length of 213.90 feet to a point in the northwesterly line of
Lot 230 in said Block 201; thence,
(12) South 09 degrees 08 minutes 24 seconds East, in the
southwesterly line of Absecon Boulevard, a distance of 87.75' to
a point of curve; thence
(13) Curving to the left along the line of Absecon Boulevard, in the
arc of a circle having a radius of 332.00', the arc length of
201.61' to a point of tangent; thence
(14) South 43 degrees 56 minutes 03 seconds East, continuing in and
along the southwesterly line of Absecon Boulevard, a distance of
128.55' to a point; thence
(15) South 82 degrees 36 minutes 59 seconds East, continuing in and
along the said southwesterly line of Absecon Boulevard, a
distance of 10.00' to a point; thence
(16) Curving to the right along the line of Absecon Boulevard, in the
arc of a circle having a radius of 70.00', the arc length of
47.26' to a point of tangent; thence
(17) North 46 degrees 03 minutes 57 seconds East, along the line of
Absecon Boulevard, a distance of 20.81' to a point which is
radially distant 95.00' from the centerline of Absecon Boulevard
(190' wide) at station 335+98.63'; thence
(18) Curving to the left in the Southwesterly line of Absecon
Boulevard, in the arc of a circle having a radius of 1527.69',
the arc length of 70.33' to the northwesterly line of lot 230 in
said block 201; thence
(19) South 41 degrees 59 minutes 00 seconds West, in and along same,
a distance of 125.00' to the extreme westerly corner of said lot
230; thence
(20) Southeastwardly, in and along the southwesterly line of same,
concentric with Absecon Boulevard, in the arc of a circle
curving to the left, having a radius of 1652.69', the arc length
of 324.55' to the extreme southeasterly corner of said lot 230;
thence
(21) North 30 degrees 43 minutes 55 seconds East, in and along the
southeasterly line of same, a distance of 125.00' to a point in
the aforesaid southwesterly line of Absecon Boulevard; thence
(22) Southeastwardly, in and along same and in the arc of a circle
curving to the left, having a radius of 1527.69', the arc length
of 245.58' to a point of tangency; thence
(23) South 68 degrees 22 minutes 10 seconds East, in and along same,
a distance of 50.00' to a point in the westerly line of the
previously mentioned 6.199 acre parcel, also being the
northwesterly line of lot 150 in said block 201; thence
(24) South 21 degrees 38 minutes 00 seconds West, in and along same,
a distance of 100.00' to a corner in said lot 150; thence
(25) Continuing in and along same, north 68 degrees 22 minutes 10
seconds west, a distance of 94.75' to a corner; thence
(26) Continuing in and along same, south 27 degrees 48 minutes 00
seconds west, a distance of 89.04' to a corner; thence
(27) Continuing in and along same, south 54 degrees 39 minutes 00
seconds west, a distance of 65.88' to a corner; thence
(28) Continuing in and along same, south 71 degrees 53 minutes 00
seconds west, a distance of 201.55' to a corner; thence
(29) Continuing in and along same, south 51 degrees 29 minutes 00
seconds east, a distance of 172.09' to a corner; thence
(30) Continuing in and along same, south 25 degrees 20 minutes 00
seconds east, a distance of 216.73' to a corner; thence
(31) Continuing in and along same and crossing the aforesaid high
water line of Beach Thorofare, south 84 degrees 22 minutes 00
seconds east, a distance of 256.83 to a corner; thence
(32) Continuing in and along same, north 79 degrees 58 minutes 00
seconds east, a distance of 279.10' to a corner; thence
(33) Continuing in and along same, north 41 degrees 22 minutes 00
seconds east, a distance of 266.39 to the point and place of
BEGINNING.
IN compliance with Chapter 157, Laws of 1977 premises herein are
known as Lot 231 in Block 201 as shown on the official tax map of
Atlantic City, New Jersey.
(PEDESTRIAN BRIDGE)
Air rights, rights of way and easements including the right to
construct, maintain and use a Pedestrian Bridge across Huron Avenue
connecting Property One Tract I with Property One Tract III contained
in Ordinance No. 2 of 1988 and affecting the following described
premises:
ALL that certain lot, tract, or parcel of land and premises situate,
lying, and being in the City of Atlantic City, County of Atlantic,
and State of New Jersey, bounded and described as follows:
BEGINNING at a point in the southerly line of Huron Avenue (100'
wide), said point being distant 956.00' eastwardly from the easterly
line of Maryland Avenue (65' wide), if same were extended
northwardly, and extending from said beginning point; thence
(1) North 27 degrees 28 minutes 00 seconds West, crossing Huron
Avenue, a distance of 100.00' to the northerly line of Huron
Avenue; thence
(2) North 62 degrees 32 minutes 00 seconds East, in and along the
northerly line of Huron Avenue, a distance of 30.00'; thence
(3) South 27 degrees 28 minutes 00 seconds East, crossing Huron
Avenue, a distance of 100.00' to the southerly line of Huron
Avenue; thence
(4) South 62 degrees 32 minutes 00 seconds West, in and along the
southerly line of Huron Avenue, a distance of 30.00' to the
point and place of BEGINNING.
BEING an area above the horizontal plane of Huron Avenue between the
elevation of 25.00 M.S.L. datum and 50.00 M.S.L. datum.<PAGE>
SCHEDULE 2
Leased Land
THE FARLEY STATE MARINA SITE
Beginning at the southeasterly corner of Maryland Avenue (68.00'
wide and Huron Avenue 100.00' wide) and extending from said beginning
point; thence
(1) South 27 degrees 28 minutes 00 seconds-East, in and along
the easterly line of Maryland Avenue, a distance of
804.15'; thence
(2) North 62 degrees 32 minutes 00 seconds East parallel with
Huron Avenue, a distance of 200.00'; thence
(3) South 27 degrees 28 minutes 00 seconds East, parallel with
Maryland Avenue, a distance of 1060.85' to a point distant
1745.00' northwardly at right angles from the northerly
line of Mediterranean Avenue (60.00' wide), said point
being in the fifth course as recited in the Riparian Grant
from the State of New Jersey to the City of Atlantic City,
dated March 15, 1920 and recorded in the clerk's office of
Atlantic County in Book 632 of Deeds, Page 117, etc.;
thence
(4) North 62 degrees 32 minutes 00 seconds East, parallel with
Huron Avenue, and in and along said aforementioned Riparian
Grant Line, a distance of 25.00'; thence
(5) North 27 degrees 28 minutes 00 seconds West, parallel with
Maryland Avenue, and in and along said aforementioned
Riparian Grant Line, a distance of 9.26'; thence
(6) North 09 degrees 01 minutes 00 seconds East, in and along
said aforementioned Riparian Grant Line, a distance of
0.04'; thence
(7) North 02 degrees 18 minutes 00 seconds East, in and along
said aforementioned Riparian Grant Line, a distance of
590.00'; thence
(8) North 62 degrees 32 minutes 00 seconds East, parallel with
Huron Avenue, in and along said aforementioned Riparian
Grant Line, a distance of 160.00'; thence
(9) North 41 degrees 39 minutes 00 seconds East, in and along
said aforementioned Riparian Grant Line, a distance of
255.00'; thence
(10) North 47 degrees 34 minutes 00 seconds East, in and along
said aforementioned Riparian Grant Line, a distance of
285.00'; thence
(11) North 56 degrees 02 minutes 00 seconds East, in and along
said aforementioned Riparian Grant Line, a distance of
360.80' to a point distance 1550.00' eastwardly at right
angles from the easterly line of Maryland Avenue; thence
(12) North 27 degrees 28 minutes 00 seconds West, parallel with
Maryland Avenue, a distance of 568.21'; thence
(13) North 62 degrees 32 minutes 00 seconds East, parallel with
Huron Avenue, a distance of 200.00' to the westerly line of
Rhode Island Avenue (50.00' wide); thence
(14) North 27 degrees 28 minutes 00 seconds West in and along
the westerly line of Rhode Island Avenue, a distance of
570.00' to the southerly line of Huron Avenue; thence
(15) South 62 degrees 32 minutes 00 seconds West, in and along
the southerly line of Huron Avenue, a distance of 1750.00'
to the point and place of BEGINNING.
EXCEPTING THEREOUT AND THEREFROM the following parcel of land
described as:
MARINE POLICE BUILDING PARCEL
BEGINNING at a point in the westerly line of Rhode Island Avenue
(50.00 feet wide), said point being distant 570.00 feet south of the
southerly line of Huron Avenue (100.00 feet wide) and extending;
thence
1. South 62 degrees 32 minutes 00 seconds West, parallel with Huron
Avenue, and in and along the division line between Lot 10 and
Lot 11 in Block B-4 as shown on the current taxing plan of the
City of Atlantic City, a distance of 97.97 feet; thence
2. North 27 degrees 28 minutes 00 seconds West, parallel with Rhode
Island Avenue, a distance of 179.00 feet; thence
3. North 62 degrees 32 minutes 00 seconds East, parallel with Huron
Avenue, a distance of 97.97 feet to the Westerly line of Rhode
Island Avenue; thence
4. South 27 degrees 28 minutes 00 seconds East, in and along the
westerly line of Rhode Island Avenue, a distance of 179.00 feet
to the point and place of BEGINNING.
ALSO EXCEPTING THEREON AND THEREFROM such land and improvements being
referred to as the 7 berths on K dock, for use of the Marina Law
Enforcement Bureau as further described in the Lease and further
shown on survey by Arthur W. Ponzio Co. & Assoc., Inc., dated
December 28, 1993 and bearing Job No 18488.
In compliance with Chapter 157, Laws of 1977, premises herein
are known as part of Lot 11 in Block B-4 as shown on the official tax
map of Atlantic City, New Jersey.
<PAGE>
SCHEDULE 3
Existing Encumbrances
<PAGE>
SCHEDULE 4
FORM OF NON-DISTURBANCE
AND ATTORNMENT AGREEMENT
THIS AGREEMENT, made as of the ______ day of ________
by and between
having an office at
(hereinafter called "Mortgagee") and
a having an
office at (hereinafter
called "Tenant").
W I T N E S S E T H:
WHEREAS, Mortgagee is the mortgagee under that certain
Indenture of Mortgage dated _____________ (said mortgage, as it
may be amended, increased, renewed, modified, consolidated, replaced,
combined, substituted, severed, split, spread or extended, being
hereinafter referred to as the "Mortgage") between Trump's Castle
Funding, Inc. ("Funding") and Trump's Castle Associates which
encumbers Trump's Castle Casino Hotel and certain other real property
located in Atlantic City, New Jersey, more particularly described in
Exhibit A hereto. Funding assigned all of its right, title and
interest in the Mortgage to _____________________ , as Trustee,
pursuant to an Assignment Agreement dated ______ , 1993; and
WHEREAS, Tenant has entered into a certain agreement
of lease dated [as amended by agreements dated
and ] and as it may be hereafter amended from time to
time (the "Lease") covering (the "Demised Premises").
NOW, THEREFORE, in consideration of the mutual agreements herein
contained and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree
as follows:
1. Tenant covenants and agrees that the Lease now is and shall
at all times continue to be subject and subordinate in each and every
respect to the Mortgage. Tenant, upon request, shall execute and
deliver any certificate or other instrument which the Mortgagee may
reasonably request to confirm said subordination by Tenant.
2. Tenant certifies that the Lease is presently in full force
and effect and unmodified and no base rent payable thereunder has
been paid more than one (1) Year in advance of its due date, and that
no default exists under the Lease which has continued beyond the
expiration of any applicable grace period.
3. As long as Tenant is in compliance with the terms of this
Agreement and no default exists under the Lease which has continued
beyond the expiration of any applicable grace period, Mortgagee shall
not name Tenant as a party defendant to any action for foreclosure or
other enforcement thereof (unless required by law), nor shall the
Lease be terminated by mortgagee in connection with, or by reason of,
foreclosure or other proceedings for the enforcement of the Mortgage,
or by reason of a transfer of the landlord's interest under the Lease
pursuant to the taking of a deed in lieu of foreclosure (or similar
device), nor shall Tenant's use or possession of the Demised Premises
be interfered with by Mortgagee, unless the holder of the landlord's
interest under the Lease (the "Landlord") would have had such right
if the Mortgage had not been made, except that the person acquiring,
or succeeding to the interests of the Landlord as a result of any
such action or proceeding, and such person's successors and assigns
(any of the foregoing being hereinafter referred to as the
Successor"), shall not be:
(a) subject to any credits, offsets, defenses or claims
which Tenant might have against any prior landlord; nor
(b) bound by any base rent which Tenant might have paid for
more than the current month to any prior landlord, unless such
prepayment shall have been made with Mortgagee's prior written
consent; nor
(c) liable for any act or omission of any prior landlord;
nor
(d) bound by any covenant to undertake or complete any
improvement to the Demised Premises or the building forming a
part of the Property; nor
(e) be required to account for any security deposit other
than any security deposit actually delivered to the Successor;
nor
(f) liable for any payment to Tenant of any sums, or the
granting to Tenant of any credit, in the nature of a
contribution towards the cost of preparing, furnishing or moving
into-the Demised Premises or any portion thereof.
4. If the interest of the Landlord under the Lease shall be
transferred by reason of foreclosure or other proceedings for
enforcement of the Mortgage or pursuant to a taking of a deed in lieu
of foreclosure (or similar device), Tenant shall be bound to the
Successor, and, except as provided in this Agreement, the Successor
shall be bound to Tenant, under all of the terms, covenants and
conditions of the Lease for the balance of the term thereof
remaining, with the same force and effect as if the Successor were
the Landlord, and Tenant does hereby (i) agree to attorn to the
Successor, including Mortgagee if it be the Successor, as its
landlord, (ii) affirm its obligations under the Lease, and (iii)
agree to make payments of all sums due under the Lease to the
Successor, said attornment, affirmation and agreement to be effective
and self-operative without the execution of any further instruments,
upon the Successor succeeding to the interest to the Landlord under
the Lease. Tenant waives the provisions of any statute or rule of
law now or hereafter in effect that may give or purport to give it
any right or election to terminate or otherwise adversely affect the
Lease or the obligations of Tenant thereunder by reason of any
foreclosure or similar proceeding.
5. This Agreement may not be modified except by an agreement
in writing signed by the parties or their respective successors in
interest. This Agreement shall inure to the benefit of and be
binding upon the parties hereto, their respective heirs,
representatives, successors and assigns.
6. Nothing contained in this Agreement shall in any way impair
or affect the lien created by the Mortgage except as specifically set
forth herein.
7. The Tenant agrees that this Agreement satisfies any condition
or requirement in the Lease relating to the granting of a
non-disturbance agreement by Mortgagee. Tenant further agrees that
in the event there is any inconsistency between the terms and
provisions hereof and the terms and provisions of the Lease dealing
with non-disturbance by Mortgagee, the terms and provisions hereof
shall be controlling.
8. All notices, demands or requests made pursuant
to, under, or by virtue of this Agreement must be in writing
and mailed to the party whom the notice, demand or request is
being made by certified or registered mail, return receipt requested,
at its address set forth above. Any party may change the place that
notices and demands are to be sent by written notice delivered in
accordance with this Agreement.
9. This Agreement shall be governed by the laws of the State
of New Jersey. If any term of this Agreement or the application
thereof to any person or circumstances shall to any extent be invalid
or unenforceable, the remainder of this Agreement or the application
of such term to any person or circumstances other than those as to
which it is invalid or unenforceable shall not be affected thereby,
and each term of this Agreement shall be valid and enforceable to the
fullest extent permitted by law.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have hereunto caused this
Agreement to be duly executed as of the day and year first above
written.
MORTGAGEE
By:________________________________
TENANT
By:_________________________________
[Acknowledgments]
Exhibit B to
Note Purchase Agreement
_________________________________________________________________
REGISTRATION RIGHTS AGREEMENT
Dated as of December 28, 1993
by and among
TRUMP'S CASTLE FUNDING, INC.
TRUMP'S CASTLE ASSOCIATES
and
PUTNAM PREMIER INCOME TRUST
PUTNAM MASTER INCOME TRUST
PUTNAM CAPITAL MANAGER TRUST
- PCM HIGH YIELD FUND
PUTNAM MASTER INTERMEDIATE INCOME TRUST
PUTNAM MANAGED HIGH YIELD TRUST
PUTNAM CAPITAL MANAGER TRUST
- PCM DIVERSIFIED INCOME FUND
PUTNAM HIGH YIELD ADVANTAGE FUND
PUTNAM HIGH YIELD TRUST
PUTNAM HIGH INCOME CONVERTIBLE AND BOND FUND
11.5 Series A Senior Notes Due 2000
_________________________________________________________________
<PAGE>
<PAGE>
TABLE OF CONTENTS
Page
1. Definitions. . . . . . . . . . . . . . . . . . . . . . . . 1
2. Registered Exchange Offer. . . . . . . . . . . . . . . . . 6
3. Shelf Registration . . . . . . . . . . . . . . . . . . . . 7
(a) Initial Shelf Registration. . . . . . . . . . . 7
(b) Subsequent Shelf Registrations. . . . . . . . . 8
(c) Supplements and Amendments . . . . . . . . . . 8
(d) Required Subsequent Registration . . . . . . . 9
(i) Required Subsequent Registration . . . . 9
(ii) Expenses . . . . . . . . . . . . . . . . 9
(iii) Priority in Required Registrations . . . 10
4. Liquidated Damages . . . . . . . . . . . . . . . . . . . . 10
5. Hold-Back Agreements . . . . . . . . . . . . . . . . . . . 12
(a) Restrictions on Public Sale by Holders. . . . . 12
(b) Restrictions on Public Sale by the Company. . . 12
6. Registration Procedures. . . . . . . . . . . . . . . . . . 12
7. Indemnification; Contribution. . . . . . . . . . . . . . . 19
(a) Indemnification by the Company. . . . . . . . . 19
(b) Indemnification by Holders, Underwriters, Etc . 21
(c) Conduct of Indemnification Proceedings. . . . . 21
(d) Contribution. . . . . . . . . . . . . . . . . . 22
8. Rule 144 and Rule 144A . . . . . . . . . . . . . . . . . . 23
9. Miscellaneous. . . . . . . . . . . . . . . . . . . . . . . 24
(a) No Inconsistent Agreements. . . . . . . . . . . 24
(b) Amendments and Waivers. . . . . . . . . . . . . 24
(c) Notices . . . . . . . . . . . . . . . . . . . . 24
(d) Successors and Assigns. . . . . . . . . . . . . 25
(e) Counterparts. . . . . . . . . . . . . . . . . . 25
(f) Headings. . . . . . . . . . . . . . . . . . . . 25
(g) Governing Law . . . . . . . . . . . . . . . . . 25
(h) Severability. . . . . . . . . . . . . . . . . . 26
(i) Specific Performance. . . . . . . . . . . . . . 26
(j) Entire Agreement. . . . . . . . . . . . . . . . 26
(k) Securities Held by the Company or Its
Respective Affiliates . . . . . . . . . . . . . 26
(i)
<PAGE>
<PAGE>
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is
made and entered into as of December __, 1993, by and among
Trump's Castle Funding, Inc., a New Jersey corporation (the
"Company"), Trump's Castle Associates, a New Jersey general
partnership (the "Guarantor"), and the purchasers whose
signatures appear on the execution page hereof (herein referred
to collectively as the "Purchasers" and each individually as a
"Purchaser").
This Agreement is made pursuant to the Note Purchase
Agreement of even date herewith among the Company, the Guarantor
and the Purchasers (the "Purchase Agreement") which provides for
the sale to the Purchasers of the Company's 11.5% Series A Senior
Notes Due 2000, in an aggregate principal amount of [insert
amount issued, not to exceed $37,000,000] unconditionally
guaranteed by the Guarantor. In order to induce the Purchasers
to enter into the Purchase Agreement, the Company and the
Guarantor have agreed to provide the Purchasers with the regis-
tration and other rights set forth in this Agreement. The exe-
cution of this Agreement is a condition to the Purchasers'
obligation to purchase the Notes under the Purchase Agreement.
In consideration of the foregoing, the parties hereto agree
as follows:
1. Definitions.
As used in this Agreement, the following capitalized terms
shall have the meanings indicated below:
"Affiliate" shall have the meaning specified in the
Indenture.
"Closing Date" shall have the meaning specified in the
Purchase Agreement.
"Company" shall have the meaning specified in the preamble
to this Agreement and shall include the Company's successors.
"Consummate" means, with respect to a Registered Exchange
Offer hereunder, (a) the filing and causing to become effective
under the Securities Act of a Registration Statement covering the
Registered Exchange Offer, (b) the maintenance of such
Registration Statement continuously effective for the period
required by Section 2 hereof, and (c) the delivery by the Company
to the Registrar under the Indenture of Series B Notes in the
same aggregate principal amount as the aggregate principal amount
of Series A Notes tendered by Holders pursuant to such Registered
Exchange Offer.
(1)
<PAGE>
"Effectiveness Date" means June 24, 1994, provided that if a
Shelf Notice is given fewer than 30 days prior to the
Effectiveness Date, then the Effectiveness Date shall be 90 days
after the date of receipt of such notice.
"Event Date" shall have the meaning specified in Section
4(a) of this Agreement.
"Exchange Registration Statement" means the registration
statement registering the Registered Exchange Offer.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time.
"Filing Date" means March 28, 1994; provided that if a Shelf
Notice is given fewer than 30 days prior to the Filing Date, the
Filing Date shall be 30 days after the date of receipt of such
notice.
"Guarantee" means the Guarantor's senior guarantee of
payment in respect of the Notes set forth in Article 14 of the
Indenture.
"Guarantor" shall have the meaning specified in the preamble
to this Agreement and shall include the Guarantor's successors.
"Holder" shall mean any holder of Registrable Series A Notes
or Series B Notes.
"Initial Shelf Registration" shall have the meaning
specified in Section 3(a) hereof.
"Indenture" means the Indenture dated as of the date hereof
by and among the Company, the Guarantor, and First Bank National
Association, as trustee, governing the Series A Notes and the
Series B Notes, as the same may be amended and supplemented from
time to time in accordance with the terms thereof.
"Majority Holders" means Holders representing a majority of
the aggregate principal amount of outstanding Registrable Series
A Notes.
"NASD" means the National Association of Securities
Dealers, Inc.
"Notes" means the Series A Notes and the Series B Notes and
any other debt securities issued in exchange or substitution for
the Series A Notes or the Series B Notes.<PAGE>
(2)
<PAGE>
"Person" means any individual, corporation, limited or
general partnership, joint venture, association, joint stock
company, limited liability company, trust, or unincorporated
organization, or a government or agency or political subdivision
thereof.
"Prospectus" shall mean the prospectus included in a
Registration Statement, including any Prospectus subject to
completion, and any such Prospectus as amended or supplemented by
any prospectus supplement with respect to the terms of the
offering of any portion of (a) the Registrable Series A Notes or
(b) the Series B Notes pursuant to a Registered Exchange Offer,
and, in each case, by all other amendments and supplements to
such Prospectus, including post-effective amendments and all
materials incorporated by reference therein.
"Purchase Agreement" shall have the meaning specified
in the preamble of this Agreement.
"Purchasers" shall have the meaning specified in the
preamble of this Agreement.
"Registered Exchange Offer" means the registration by the
Company and the Guarantor under the Securities Act of all the
Series B Notes and the Guarantee thereof pursuant to a
Registration Statement under which the Company offers each Holder
eligible to participate in such exchange offer the opportunity to
exchange all outstanding Registrable Series A Notes held by such
Holder for Series B Notes in an aggregate principal amount equal
to the aggregate principal amount of Registrable Series A Notes
held by such Holder.
"Registrable Series A Notes" means the Series A Notes upon
original issuance thereof, and at all times subsequent thereto,
until, in the case of any such Series A Note, (i) a Registration
Statement with respect to such Series A Note has been declared
effective under the Securities Act and such Series A Note has
been disposed of in accordance with such Registration Statement;
(ii) such Series A Note is distributed to the public pursuant to
Rule 144 (or any successor provisions) promulgated under the
Securities Act; (iii) such Series A Note has been otherwise
transferred and new certificates for them not bearing a legend
restricting further transfer shall have been delivered by the
Company; or (iv) such Series A Note ceases to be outstanding.
"Registration Expenses" means any and all expenses incident
to performance of or compliance with this Agreement, including
without limitation: (i) all SEC, stock exchange or NASD
registration and filing fees, including, if applicable, the fees
and expenses of any "qualified independent underwriter" (and its
counsel) that is required to be retained in accordance with the
(3)
<PAGE>
rules and regulations of the NASD, (ii) all fees and expenses
incurred in connection with compliance with state securities or
blue sky laws and compliance with the rules of the NASD
(including reasonable fees and disbursements of counsel in
connection with the NASD and Blue Sky qualification of any of the
Registrable Series A Notes and the preparation of a Blue Sky
memorandum), (iii) all expenses of any Persons in preparing or
assisting in preparing, word processing, printing and
distributing any Registration Statement, any Prospectus, any
amendments or supplements thereto, any underwriting agreements,
transmittal letters, securities sales agreements, Note certifi-
cates and other documents relating to the performance of and
compliance with this Agreement, (iv) all fees and expenses
incurred in connection with the listing, if any, of any of the
Registrable Series A Notes on any securities exchange or
exchanges pursuant to Section 6 hereof, (v) the fees and
disbursements of counsel for the Company and of the independent
public accountants of the Company and its Subsidiaries, including
the expenses of any special audits or "cold comfort" letters
required by or incident to such performance and compliance, (vi)
the reasonable fees and disbursements of special counsel
representing the Holders (the "special counsel") that is
reasonably acceptable to the Company, (vii) the fees and expenses
of the Trustee, and any escrow agent or custodian, and (viii) any
fees and disbursements of the Underwriters customarily required
to be paid by issuers or sellers of securities and the reasonable
fees and expenses of any special experts retained by the Company
in connection with any Registration Statement, but excluding
underwriting discounts and commissions and transfer taxes, if
any, relating to the sale or disposition of Registrable Series A
Notes by a Holder. In connection with any Registration Statement
hereunder, the Company shall reimburse the Holders of the
Registrable Series A Notes being registered in such registration
for the reasonable fees and disbursements of special counsel
chosen by the Majority Holders.
"Registration Statement" means any registration statement of
the Company and the Guarantor on an appropriate form pursuant to
the Securities Act which covers any of the Registrable Series A
Notes or the Series B Notes, as the case may be, and all
amendments and supplements to any such Registration Statement,
including post-effective amendments, in each case including the
Prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.
"Required Registration" shall have the meaning specified in
Section 3(d) of this Agreement.
(4)
<PAGE>
"Required Registration Date" shall have the meaning
specified in Section 3(d) of this Agreement.
"Required Registration Statement" means a Registration
Statement which covers any of the Registrable Series A Notes
pursuant to the provisions of Section 3(d) of this Agreement.
"SEC" means the Securities and Exchange Commission.
"Securities" means the Series A Notes and the Series B
Notes.
"Section 3(d) Notice" shall have the meaning specified in
Section 3(d) of this Agreement.
"Securities Act" means the Securities Act of 1933, as
amended from time to time.
"Series A Notes" means the Company's 11.5% Series A Senior
Secured Notes due 2000, sold pursuant to the Purchase Agreement
and issued in accordance with the Indenture in an original aggre-
gate principal amount of $27,000,000.
"Series B Notes" means the Company's 11.5% Series B Senior
Secured Notes due 2000, issued in accordance with the Indenture.
"Shelf Effectiveness Period" shall have the meaning
specified in Section 3(a) of this Agreement.
"Shelf Notice" shall have the meaning specified in Section
2(e) of this Agreement.
"Shelf Registration" shall have the meaning specified in
section 3(b) of this Agreement.
"Shelf Registration Statement" shall have the meaning
specified in Section 3(a) of this Agreement.
"Subsequent Shelf Registration" shall have the meaning
specified in Section 3(b) of this Agreement.
"TIA" shall have the meaning specified in Section 6(p) of
this Agreement.
"Trustee" means First Bank National Association, as trustee
under the Indenture.
"Underwritten Offering" means a sale of securities of the
Company to an Underwriter or Underwriters for reoffering to the
public.
"Weekly Liquidated Damages Amount" shall have the meaning
specified in Section 4(a) of this Agreement.
(5)
<PAGE>
2. Registered Exchange Offer.
(a) Each of the Company and the Guarantor shall cause to be
filed, as soon as reasonably practicable after the Closing Date
but in no event later than the Filing Date, a Registration
Statement with respect to the Registered Exchange Offer and shall
use its reasonable best efforts to cause (A) such Registration
Statement to be declared effective on or prior to the
Effectiveness Date and (B) Series B Notes to be delivered to the
Registrar under the Indenture for delivery to all Holders who
have tendered Registrable Series A Notes pursuant to the
Registered Exchange Offer.
(b) The Company shall deliver written notice that a
Registration Statement filed in connection with a Registered
Exchange Offer is effective to each Holder promptly after
receiving notice of effectiveness from the SEC. The Company
shall not permit any securities other than the Series B Notes to
be included in such Registration Statement. The Company and the
Guarantor shall keep the Registration Statement relating to the
Registered Exchange Offer continuously effective for a period of
not less than the period required under applicable federal and
state securities laws; provided, however, that the Registered
Exchange Offer shall remain open and the Registration Statement
relating to the Registered Exchange Offer shall remain
continuously effective, for a period of at least 20 consecutive
Business Days. The Company and the Guarantor shall supplement or
amend the Registration Statement filed in respect of the
Registered Exchange Offer to the extent required by applicable
law, rules or regulations, or by the instructions applicable to
the registration form used by the Company and the Guarantor for
such Registration Statement.
(c) Each Holder who participates in the Registered Exchange
Offer will be deemed to represent that at the time of the
Consummation of the Registered Exchange Offer (i) such Holder
will not be an Affiliate of the Company, (ii) any Series B Notes
received by such Holder will be acquired in the ordinary course
of its business, and (iii) such Holder will have no agreement or
understanding with any person to participate in the distribution
within the meaning of the Securities Act or the resale of the
Series B Notes received by such Holder in violation of the
Securities Act or the Exchange Act. Upon the consummation of the
Registered Exchange Offer in accordance with this Section 2 and
the delivery of the Series B Notes such that they are freely
tradeable by the Holders thereof under state and Federal
securities laws, the provisions of this Agreement shall continue
to apply mutatis mutandis, provided that (i) solely with respect
to Registrable Series A Notes the Company and the Guarantor may
omit to comply with such of the procedures set forth in Section 6
hereof as are required to be complied with only in connection
(6)
<PAGE>
with a Shelf Registration or as would not adversely affect the
interests of the Purchasers of Registrable Series A Notes under
this Agreement, and (ii) neither the Company nor the Guarantor
shall have any further obligation to register Registerable Series
A Notes pursuant to Section 3 of this Agreement.
(d) Expenses. The Company and the Guarantor shall pay all
Registration Expenses in connection with the Registered Exchange
Offer.
(e) If (1) prior to the Consummation of the Registered
Exchange Offer, the Company or the Majority Holders reasonably
determine in good faith that (i) the Series B Notes received by
such Holders of Registrable Series A Notes in the Registered
Exchange Offer would not, upon receipt, be tradeable by each such
Holder (other than a Holder which is an Affiliate of the Company)
without restriction under the Securities Act and the Exchange Act
and without material restrictions under the blue sky or
securities laws of substantially all of the states of the United
States of America, or (ii) the Consummation of a Registered
Exchange Offer would have a material adverse effect on the
Holders of Registrable Series A Notes, taken as a whole, or (iii)
after conferring with counsel, the SEC would not permit
Consummation of the Registered Exchange Offer prior to the
Effectiveness Date or (2) the Registered Exchange Offer is
commenced but not consummated within 120 days after commencement
thereof for any reason, then the Company and the Guarantor shall
promptly deliver to the Holders and to the Trustee notice thereof
(the "Shelf Notice") and withdraw the Registered Exchange Offer
and shall thereafter file a Shelf Registration pursuant to
Section 3.
3. Shelf Registration.
If a Shelf Notice is delivered as provided in Section 2(e)
hereof, then:
(a) Initial Shelf Registration. The Company and the
Guarantor shall file a "shelf" Registration Statement for an
offering to be made on a continuous basis pursuant to Rule 415
under the Securities Act (as such Rule may be amended from time
to time, or any similar rule or regulation adopted by the SEC)
covering all of the Registrable Series A Notes prior to the
Filing Date the "Initial Shelf Registration"). If the Company
and the Guarantor shall not yet have filed a Registration
Statement for a Registered Exchange Offer, the Company and the
Guarantor shall use their respective best efforts to file with
the SEC the Initial Shelf Registration on or prior to the Filing
Date. The Company and the Guarantor shall not permit any
securities other than the Registrable Series A Notes to be
included in the Initial Shelf Registration or any Subsequent
(7)
<PAGE>
Shelf Registration. The Company and the Guarantor shall use
their respective best efforts to cause the Initial Shelf
Registration to be declared effective under the Securities Act on
or prior to the Effectiveness Date and to keep the Initial Shelf
Registration continuously effective until the date which is 24
months from the date upon which the Shelf Registration is
declared effective (the "Shelf Effectiveness Period") or, if
earlier, until all of the Registrable Series A Notes covered by
the Shelf Registration Statement have been sold pursuant to the
Shelf Registration Statement.
(b) Subsequent Shelf Registrations. If the Initial Shelf
Registration or any Subsequent Shelf Registration (as defined
below) ceases to be effective for any reason at any time during
the Shelf Effectiveness Period (other than because of the sale of
all of the securities registered thereunder), the Company and the
Guarantor shall use their respective best efforts to obtain the
prompt withdrawal of any order suspending the effectiveness
thereof, and in any event shall within 45 days of such cessation
of effectiveness amend the Shelf Registration in a manner
reasonably expected to obtain the withdrawal of the order
suspending the effectiveness thereof, or file an additional
"shelf" Registration Statement pursuant to Rule 415 covering all
of the Registrable Series A Notes (a "Subsequent Shelf
Registration"). If a Subsequent Shelf Registration is filed, the
Company and the Guarantor shall use their respective best efforts
to cause the Subsequent Shelf Registration to be declared
effective as soon as practicable after such filing and to keep
such Registration Statement continuously effective for a period
equal to the number of days in the Shelf Effectiveness Period
less the aggregate number of days during which the Initial Shelf
Registration or any Subsequent Shelf Registration was previously
continuously effective. As used herein the term "Shelf
Registration" means the Initial Shelf Registration Statement and
any Subsequent Shelf Registration.
(c) Supplements and Amendments. The Company and the
Guarantor shall promptly supplement and amend the Shelf
Registration if required by the rules, regulations or
instructions applicable to the registration form used for such
Shelf Registration, if required by the Securities Act, or if
requested by the holders of a majority in aggregate principal
amount of the Registerable Series A Notes covered by such
Registration Statement or by any underwriter of such Registrable
Series A Notes.
(8)
<PAGE>
(d) Required Subsequent Registration.
(i) Required Subsequent Registration. If, after the
termination of the Shelf Effectiveness Period, for any reason
Rule 144(k) or any successor rule under the Securities Act shall
not be available to permit the resale of the Registrable Series A
Notes by any Holder without registration under the Securities
Act, then, within 90 days after termination of the Shelf
Effectiveness Period (the "Required Registration Date"), the
Company and the Guarantor will give written notice (a "Section
3(d) Notice") to all Holders of Registrable Series A Notes of its
intention to effect the registration under the Securities Act of
any Registrable Series A Notes which Holders wish to have so
registered (a "Required Registration"). The Section 3(d) Notice
shall specify the procedures which a Holder shall follow to
request inclusion of the Holder's Registrable Series A Notes.
For a period of 30 calendar days after the date the Section 3(d)
Notice is given, Holders shall have the right to request in
writing that the Company and the Guarantor include such Holders'
Registrable Series A Notes in the Required Registration
Statement. If the Majority Holders have requested inclusion of
such Holders' Registerable Series A Notes in a registration
statement, then not later than 90 calendar days after giving the
Section 3(d) Notice, the Company and the Guarantor shall file a
Required Registration Statement covering all of the Registrable
Series A Notes requested by the Holders thereof to be included
therein and to have such Required Registration Statement declared
effective as promptly as practicable (but in no event later than
180 calendar days after the giving of the request by the Holders
described above) and to keep such Required Registration Statement
continuously effective for a period of at least 180 calendar days
following the date on which such Required Registration Statement
is declared effective or, if earlier, until all of the
Registrable Series A Notes covered by such Required Registration
Statement have been sold pursuant thereto. In lieu of filing the
Required Registration Statement, the Company and the Guarantor
may, in their sole discretion and if permitted by applicable law,
keep a Shelf Registration continuously effective for an
additional period of at least 180 calendar days after termination
of the Shelf Effectiveness Period or, if earlier, until all of
the Registrable Series A Notes which would otherwise have been
covered by such Required Registration Statement have been sold
pursuant to such Shelf Registration Statement.
(ii) Expenses. The Company and the Guarantor shall
pay all Registration Expenses in connection with the Required
Registration. Each Holder requesting a Required Registration
pursuant to Section 3(d)(i) of this Agreement shall pay all
underwriting discounts and commissions and transfer taxes, if
any, relating to the sale or disposition of such Holders'
(9)
<PAGE>
Registrable Series A Notes pursuant to such Required
Registration.
(iii) Priority in Required Registrations. If a
Required Registration involves an Underwritten offering of the
securities so being registered, which securities are to be dis-
tributed on a firm commitment basis by or through one or more
Underwriters of recognized standing pursuant to underwriting
terms appropriate for such transaction, and the sole or managing
Underwriter, as the case may be, of such Underwritten Offering
shall advise the Company and the Guarantor in writing (with a
copy to each Holder requesting registration) that, in its
opinion, the amount of securities requested to be included in
such Required Registration exceeds the amount which can be sold
in (or during the time of) such offering within a price range
acceptable to the Holders who have requested that their
Registrable Series A Notes be included in such registration, then
the amount of Registrable Series A Notes to be offered for the
accounts of Holders thereof shall be reduced pro rata based upon
the relative aggregate amount of gross proceeds to be received by
such Holders in the offering to the extent necessary to reduce
the total amount of securities to be included in such offering to
the amount that the Company is so advised can be sold in (or
during the time of) such offering.
4. Liquidated Damages.
(a) The Company, the Guarantor and the Purchasers agree
that the Holders of Registrable Series A Notes will suffer
damages if the Company and the Guarantor fail to fulfill their
obligations under Section 2 or Section 3 hereof and that it would
not be feasible to ascertain the extent of such damages with
precision. Accordingly, if (i) the Exchange Registration
Statement and/or the Initial Shelf Registration has not been
filed on or prior to the Filing Date, (ii) the Initial Shelf
Registration has not become effective and/or the Registered
Exchange Offer has not been consummated on or prior to the Shelf
Effectiveness Date, (iii) prior to the end of the Shelf
Effectiveness Period, the SEC shall have issued a stop order
suspending the effectiveness of the Initial Shelf Registration or
any Subsequent Shelf Registration or (iv) a notice under Section
6(e)(vi) hereof is effective or required to be effective at a
time when the aggregate number of days for which all such notices
issued or required to be issued pursuant to Section 6(e)(vi)
hereof have been, or were required to be, in effect exceeds 60
days, whether or not consecutive (the Filing Date in the case of
clause (i), the Effectiveness Date in the case of clause (ii),
the date on which the Registration Statement ceases to be
effective in the case of clause (iii), and the date on which the
60-day limit is exceeded in the case of clause (iv), each being
referred to herein as an "Event Date"), then the Company and the
(10)
<PAGE>
Guarantor, jointly and severally, agree to pay, or cause to be
paid, in addition to amounts otherwise due under the Indenture
and the Registrable Series A Notes, as liquidated damages, and
not as a penalty, to each Holder of Registrable Series A Notes,
an additional amount (the "Weekly Liquidated Damages Amount")
equal to (a) for each weekly period (or part thereof) from and
including the Event Date, $[insert equivalent of 1/4 of 1%
increase in per annum rate] per week per $1,000 principal amount
of Registrable Series A Notes held by such Holder, and (b)
beginning the 61st day after the Event Date, the Weekly
Liquidated Damages Amount shall be increased by an additional
$[insert equivalent of 1/4 of 1% increase in per annum rate] per
week (or part thereof) per $1,000 principal amount of Registrable
Series A Notes held by such Holder; provided that such liquidated
damages will, in each case, cease to accrue on the date on which
(x) the Exchange Registration Statement or the Initial Shelf
Registration, as the case may be, is filed or the Initial Shelf
Registration or the Registered Exchange Offer, as the case may
be, is declared effective, with respect to liquidated damages for
failure to be filed by the Filing Date or declared effective by
the Effectiveness Date, as the case may be, (y) the applicable
Shelf Registration is no longer subject to an order suspending
the effectiveness thereof or a new Subsequent Shelf Registration
is declared effective, with respect to liquidated damages for the
failure to remain effective or (z) a notice issued, or required
to be issued, pursuant to Section 6(e)(vi) is no longer effective
or required to be effective, with respect to liquidated damages
payable pursuant to clause (iv) above.
(b) The Company and the Guarantor shall notify the Trustee
within five Business Days after each and every Event Date. The
Company and the Guarantor, jointly and severally, shall pay the
liquidated damages due on the Registrable Securities by
depositing with the Trustee, in trust, for the benefit of the
Holders thereof, on or before the applicable semi-annual interest
payment date, immediately available funds in sums sufficient to
pay the liquidated damages then due to Holders of Registrable
Securities with respect to which the Trustee serves. The
liquidated damages amount due shall be payable on each interest
payment date to the record Holder of Registrable Series A Notes
entitled to receive the interest payment to be made on such date
as set forth in the Indenture. Each obligation to pay liquidated
damages shall be deemed to accrue on the applicable Event Date.
The parties hereto agree that the liquidated damages provided for
in this Section 4 constitute a reasonable estimate of the damages
that may be incurred by Holders of Registrable Series A Notes by
reason of the failure of a Shelf Registration an/or exchange
Offer to be filed or declared effective, or a Shelf Registration
to remain effective, as the case may be in accordance with this
Section 4.
(11)
<PAGE>
5. Hold-Back Agreements.
(a) Restrictions on Public Sale by Holders. Each Holder
whose Registrable Series A Notes are covered by a Registration
Statement filed pursuant to Section 2 or 3 hereof agrees not to
effect any public sale or distribution of any securities of the
Company or the Guarantor of the same or similar class or classes
as the securities included in the Registration Statement or any
securities convertible into or exchangeable or exercisable for
such securities, including a sale pursuant to Rule 144 or Rule
144A under the Securities Act, during the 15-day period prior to,
and during the 90-day period beginning on, the effective date of
such Registration Statement (except pursuant to such Registration
Statement) if and to the extent requested in writing (with
reasonable prior notice) by the Company and the Guarantor, in the
case of a public offering that is not an Underwritten Offering,
or by the sole or managing Underwriter, in the case of an
Underwritten Offering.
(b) Restrictions on Public Sale by the Company. The
Company and the Guarantor agree not to effect any public sale or
distribution of any securities which are the same as or
substantially similar to those Registrable Series A Notes being
registered pursuant to a Registration Statement filed pursuant to
Section 3 hereof, including a sale pursuant to Regulation D under
the Securities Act, or any securities convertible into or
exchangeable or exercisable for such securities during the 15-day
period prior to, and during the 90-day period beginning on, the
effective date of such Registration Statement (except pursuant to
such Registration Statement on Form S-4 or any successor to such
Form).
6. Registration Procedures.
Whenever any Registrable Series A Notes are to be registered
pursuant to Sections 2 or 3 of this Agreement, the Company and
the Guarantor shall use their reasonable best efforts to effect
or cause to be effected such registration in a manner which will
permit the exchange or sale of such Registrable Series A Notes by
the Holders thereof in accordance with their intended method or
methods of distribution, and the Company and the Guarantor shall
(to the extent applicable), as expeditiously as possible:
(a) prepare and file a Registration Statement with the SEC
and cause each such Registration Statement to become and remain
effective, within the applicable time periods specified herein,
which Registration Statement (x) shall be on an appropriate
registration form under the Securities Act, selected by the
Company and shall be reasonably acceptable to the special counsel
for the Holders, (y) shall be available for the sale or exchange
(12)
<PAGE>
of the Registrable Series A Notes in accordance with the intended
method or methods of distribution by the selling or exchanging
Holders thereof, and (z) shall comply as to form in all material
respects with the requirements of the applicable form under the
Securities Act and include all financial statements required by
the SEC to be filed therewith;
(b) prepare and file with the SEC such amendments and
post-effective amendments to each such Registration Statement as
may be necessary to keep such Registration Statement effective
for the applicable time period hereunder; cause each related
Prospectus to be supplemented by any required prospectus
supplement, and as so supplemented to be filed pursuant to Rule
424 (or any similar provision then in force) under the Securities
Act; and comply with the provisions of the Securities Act, the
Exchange Act and the rules and regulations promulgated thereunder
with respect to the disposition of all securities covered by each
Registration Statement during the applicable period in accordance
with the intended method or methods of distribution by the
selling holders thereof;
(c) if a Registration Statement is filed pursuant to
Section 3, furnish to each Holder and to each Underwriter of an
Underwritten offering of Registrable Series A Notes, if any,
without charge, as many copies of each Prospectus, including each
Prospectus subject to completion, and any amendment or supplement
thereto and such other documents as such Holder or Underwriter
may reasonably request, in order to facilitate the public sale or
other disposition of the Registrable Series A Notes; the Company
and the Guarantor consent to the use of the Prospectus, including
each Prospectus subject to completion, by each Holder and each
Underwriter of an Underwritten Offering of Registrable Series A
Notes, if any, in connection with the offering and sale of the
Registrable Series A Notes covered by such Prospectus or
Prospectus subject to completion;
(d) on or prior to the date on which such Registration
Statement is declared effective, register or qualify, and
cooperate with each Holder of Registrable Series A Notes covered
by such Registration Statement, each Underwriter, if any, and
their respective counsel in registering or qualifying the
Registrable Series A Notes under all applicable state securities
or "blue sky" laws of such jurisdictions as each such
Underwriter, if any, or any such Holder shall reasonably request
in writing, keep each such registration or qualification
effective during the period such Registration Statement is
required to be kept effective and do any and all other acts and
things which may be reasonably necessary or advisable to enable
such Underwriter, if any, and such Holders to consummate the
disposition in each such jurisdiction of Registrable Series A
Notes covered by such Registration Statement;
(13)
<PAGE>
(e) notify each Holder of Registrable Series A Notes
covered by such Registration Statement, each Underwriter, if any,
and their respective counsel promptly, and confirm such notice in
writing (i) when such Registration Statement has become effective
and when any post-effective amendments and supplements thereto
become effective or any supplement to the Prospectus or amendment
Prospectus shall have been filed, (ii) of the issuance by the SEC
or any state securities authority of any stop order suspending
the effectiveness of such Registration Statement or preventing or
prohibiting the use of any Prospectus (including any Prospectus
subject to completion) or the initiation of any proceedings for
any such purpose, (iii) of the receipt of comments from the SEC
with respect to such Registration Statement, (iv) if, between the
effective date of such Registration Statement and the closing of
any sale of securities covered thereby, the representations and
warranties of the Company or the Guarantor contained in the
underwriting agreement or other agreement contemplated by
Section 6(k) hereof, if any, relating to the offering cease to be
true and correct in all material respects, (v) if the Company or
the Guarantor receives any notification with respect to the
suspension of the qualification of the Registrable Series A Notes
for sale in any jurisdiction or the initiation of any proceeding
for such purpose, and (vi) of the happening of any event during
the period such Registration Statement is effective as a result
of which such Registration Statement or the related Prospectus
contains any untrue statement of a material fact or omits to
state any material fact required to be stated therein or neces-
sary to make the statements therein not misleading or, in the
Company's or the Guarantor's reasonable determination, a
post-effective amendment to such Registration Statement would be
appropriate;
(f) furnish special counsel for the Holders of Registrable
Series A Notes covered by such Registration Statement and each
Underwriter, if any, with copies of any request by the SEC or any
state securities authority for amendments or supplements to such
Registration Statement or any Prospectus or for additional
information;
(g) make every reasonable effort to prevent the issuance of
any order suspending the effectiveness of a Registration
Statement or of any order preventing or suspending the use of a
Prospectus or suspending the qualification (or exemption from
qualification) of any of the Registrable Series A Notes for sale
in any jurisdiction, and, if any such order is issued, to obtain
promptly the withdrawal of any such order;
(h) upon request, furnish to the Underwriter or managing
Underwriter of any Underwritten Offering of Registrable Series A
Notes, if any, without charge, with at least one signed copy of
(14)
<PAGE>
each Registration Statement and any post-effective amendment
thereto, including financial statements and schedules, all
documents incorporated therein by reference and all
exhibits; and furnish to each Holder, without charge, one
conformed copy of each Registration Statement and any post-
effective amendment thereto, including financial statements and
schedules, (but not including documents incorporated therein by
reference or exhibits thereto, unless requested);
(i) if a Registration Statement is filed pursuant to
Section 3, cooperate with the selling Holders and the Underwriter
or managing Underwriter of an Underwritten Offering of
Registrable Series A Notes, if any, to facilitate the timely
preparation and delivery of certificates (not bearing any
restrictive legends) representing Registrable Series A Notes to
be sold; and issue such Registrable Series A Notes to be sold in
such denominations (consistent with the provisions of the
Indenture) and registered in such names as the selling Holders or
the Underwriter or managing Underwriter of an underwritten
offering of Registrable Series A Notes, if any, may reasonably
request at least three business days prior to any sale of
Registrable Series A Notes;
(j) upon the occurrence of any event contemplated by
Section 6(e)(vi) hereof, prepare a supplement or post-effective
amendment to a Registration Statement or the related Prospectus
or any document incorporated therein by reference or file any
other required document so that, as thereafter delivered to the
purchasers of the Registrable Series A Notes, such Registration
Statement will not contain any untrue statement of a material
fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, not
misleading and in the Company's reasonable determination a
post-effective amendment to such Registration Statement is no
longer appropriate;
(k) if a Registration Statement is filed pursuant to
Section 3, enter into customary agreements (including
underwriting agreements) and take all other customary and
appropriate actions in order to expedite or facilitate the dis-
position of such Registrable Series A Notes and in such
connection whether or not an underwriting agreement is entered
into and whether or not the registration is an Underwritten
offering:
(1) to the extent the Company or the Guarantor is
able, make such representations and warranties to the
Holders and the Underwriters, if any, in form, substance and
scope as are customarily made by issuers to underwriters in
similar primary underwritten offerings and covering matters
(15)
<PAGE>
including, but not limited to, those set forth in the Purchase
Agreement;
(2) obtain opinions of counsel to the Company and the
Guarantor and updates thereof (which counsel and opinions
(in form, scope and substance) shall be reasonably
satisfactory to the managing Underwriters, if any, and the
special counsel for the Holders of the Registrable Series A
Notes being sold) addressed to each selling Holder and the
Underwriters, if any, covering the matters customarily
covered in opinions requested in similar sales of securities
or underwritten offerings and such other matters as may be
reasonably requested by such Holders and Underwriters;
(3) obtain "cold comfort" letters and updates thereof
from the independent certified public accountants of the
Company and each of its Subsidiaries addressed to the
selling Holders of Registrable Series A Notes and the
Underwriters, if any, such letters to be in customary form
and covering matters of the type customarily covered in
"cold comfort" letters to underwriters in connection with
primary underwritten offerings;
(4) enter into a securities sales agreement with the
Holders relating to such registration and providing for,
among other things, the appointment of the Underwriter as
agent for the selling Holders for the purpose of soliciting
purchases of Registrable Series A Notes, which agreement
shall be customary in form, substance and scope and shall
contain customary representations, warranties and covenants;
(5) if an underwriting agreement is entered into,
cause the same to set forth indemnification provisions and
procedures substantially equivalent to the indemnification
provisions and procedures set forth in Section 7 hereof with
respect to all parties to be indemnified pursuant to said
Section; and
(6) deliver such other documents and certificates as
may be reasonably requested by the Holders of a majority in
principal amount of the Registrable Series A Notes being
sold and the managing Underwriters, if any.
The above shall be done at (i) the effectiveness of such Regis-
tration Statement (and each post-effective amendment thereto) and
(ii) each closing under any underwriting or similar agreement as
and to the extent required thereunder;
(l) make available for inspection by representatives of the
Holders of the Registrable Series A Notes and any Underwriters
participating in any disposition pursuant to a Registration
(16)
<PAGE>
Statement, and any special counsel or accountant retained by such
Holders or Underwriters, at the offices where normally kept
during normal business hours, all financial and other records,
pertinent corporate documents and properties of the Company and
its Subsidiaries, and cause its officers, directors and employees
to supply all information reasonably requested by any such
representative, Underwriter, special counsel or accountant in
connection with a Registration Statement; provided, however, that
such records, documents or information which the Company
determines, in good faith, to be confidential and notifies such
representatives, Underwriters, special counsel or accountants in
writing are confidential shall not be disclosed by the
representatives, Underwriters, special counsel or accountants
unless (i) the disclosure of such records, documents or
information is necessary to avoid or correct a misstatement or
omission in a Registration Statement, (ii) the release of such
records, documents or information is ordered pursuant to a
subpoena or other order from a court of competent jurisdiction,
or (iii) such records, documents or information have been
generally made available to the public other than as a result of
a disclosure or failure to safeguard by such person;
(m) (i) a reasonable time prior to the filing of any
Registration Statement, any Prospectus, any amendment to a
Registration Statement or amendment or supplement to a Prospec-
tus, provide copies of such document to the Holders, to the
special counsel on behalf of the Holders and to the Underwriter
or Underwriters of an Underwritten offering of Registrable Series
A Notes, if any, make such changes in any such document prior to
the filing thereof as the special counsel to the Holders or the
Underwriter or Underwriters, may reasonably request and not file
any such document in a form to which the Holders, or any
Underwriter shall reasonably object, and make such of the
representatives of the Company available for discussion of such
document as shall be reasonably requested by the Holders, or any
Underwriter;
(ii) a reasonable time prior to the filing of any
document which is to be incorporated by reference into a Regis-
tration Statement or a Prospectus, provide copies of such docu-
ment to special counsel for the Holders, and make such changes in
such document prior to the filing thereof as such counsel or
counsel for any Underwriter shall reasonably request; and make
such of the representatives of the Company as shall be reasonably
requested by such special counsel available for discussion of
such document;
(n) take all steps reasonably necessary to cause all Series
B Notes or Registrable Series A Notes covered by a Registration
Statement to be listed on the American Stock Exchange;
(17)
<PAGE>
(o) provide a CUSIP number for all Registrable Series A
Notes, not later than the effective date of a Registration
Statement;
(p) cause the Indenture to be qualified under the Trust
Indenture Act of 1939, as amended from time to time (the "TIA"),
in connection with the registration of the Registrable Series A
Notes, cooperate with the Trustee under the Indenture and the
holders of the Securities to effect such changes to the Indenture
as may be required for the Indenture to be so qualified in
accordance with the terms of the TIA and execute, and cause the
Trustee to execute, all documents as may be required to effect
such changes, and all other forms and documents required to be
filed with the SEC to enable the Indenture to be so qualified in
a timely manner;
(q) comply with all applicable rules and regulations of the
SEC and make available to its security holders, as soon as
reasonably practicable an earnings statement covering at least 12
months which shall satisfy the provisions of Section 11(a) of the
Securities Act and Rule 158 thereunder;
(r) if a registration statement is filed pursuant to
Section 3, file and keep continuously effective a "market making
prospectus" with respect to the outstanding Securities and
deliver to the Underwriter such number of copies of such
prospectus as the Underwriter may reasonably request in the
course of its market making activities with respect to the
Securities; and
(s) cooperate and assist in any filings required to be made
with the NASD and in the performance of any due diligence
investigation by any Underwriter (including any "qualified
independent Underwriter" that is required to be retained in
accordance with the rules and regulations of the NASD).
Each selling Holder of Registrable Series A Notes as to
which any registration is being effected pursuant to this
Agreement agrees, as a condition to the registration obligations
of the Company and the Guarantor provided herein, to furnish to
the Company and the Guarantor such information regarding the
proposed distribution by such Holder as the Company and the
Guarantor may from time to time reasonably request in writing.
Each Holder agrees that, upon receipt of any notice from the
Company of the happening of any event of the kind described in
Section 6(e)(vi) hereof, such Holder will forthwith discontinue
disposition of Registrable Series A Notes pursuant to a
Registration Statement until such Holder's receipt of the copies
of the supplemented or amended Prospectus contemplated by Section
6(j) hereof, and, if so directed by the Company or the Guarantor
(18)
<PAGE>
such Holder will deliver to the Company (at the expense of the
Company), all copies in its possession, other than permanent file
copies then in such Holder's possession, of the Prospectus
covering such Registrable Series A Notes current at the time of
receipt of such notice. If the Company or the Guarantor shall
give any such notice to suspend the disposition of Registrable
Series A Notes pursuant to a Registration Statement, the Company
and the Guarantor shall extend the period during which the
Registration Statement shall be maintained effective pursuant to
this Agreement by the number of days in the period from and
including the date of the giving of such notice to and including
the date when the Holders shall have received copies of the
supplemented or amended Prospectus necessary to resume such
dispositions.
In connection with the filing of a Registration Statement
under this Agreement, the Company or the Guarantor may elect to
have all Registrable Series A Notes or all Series B Notes, as the
case may be, in definitive form or book-entry form, and each
Holder will be required to convert its Security into a definitive
form Security or a book-entry form Security, as the case may be,
in accordance with the provisions set forth in the Indenture.
7. Indemnification; Contribution.
(a) Indemnification by the Company. The Company and the
Guarantor, jointly and severally, shall without limitation as to
time indemnify and hold harmless each Holder and each of their
respective Affiliates (including any director, officer, trustee,
employee agent or attorney of such Holder or Person, if any, who
controls any Holder within the meaning of Section 15 of the
Securities Act and any director, officer, trustee, employee,
agent or attorney for such controlling person) (each an
"Indemnified Party"):
(i) against any and all loss, claim, damage, liability
and expense whatsoever, as incurred, arising out of or based
upon any untrue statement or alleged untrue statement of a
material fact contained in any Registration Statement (or
any amendment thereto), or arising out of or based upon any
omission or alleged omission of a material fact required to
be stated therein or necessary to make the statements
therein not misleading or arising out of or based upon any
untrue statement or alleged untrue statement of a material
fact contained in any Prospectus or including any Prospectus
subject to completion (or any amendment or supplement
thereto), or arising out of or based upon any omission or
alleged omission of a material fact necessary in order to
make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(19)
<PAGE>
(ii) against any and all loss, liability, claim, dam-
age and expense whatsoever, as incurred, to the extent of
the aggregate amount paid in settlement of any litigation,
or investigation or proceeding by any governmental agency or
body, commenced or threatened, or of any claim whatsoever
based upon any such untrue statement or omission, or any
such alleged untrue statement or omission, if such
settlement is effected with the written consent of the
Company; and
(iii) against any and all expense whatsoever, as
incurred (including, subject to the provisions of Section
7(c) below, reasonable fees and disbursements of counsel),
reasonably incurred in investigating, preparing or defending
against any litigation, or investigation or proceeding by
any governmental agency or body, commenced or threatened, in
each case whether or not a party, or any claim whatsoever
based upon any such untrue statement or omission, or any
such alleged untrue statement or omission, to the extent
that any such expense is not paid under subparagraph (i) or
(ii) above;
provided, however, that the Company and the Guarantor shall not
be liable in any such case to any Indemnified Party to the extent
that any such loss, claim, damage, liability or expense arises
out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission in a Prospectus subject
to completion, if (A) such untrue statement or alleged untrue
statement, omission or alleged omission is corrected in an
amendment or supplement to such Prospectus; (B) the Company or
the Guarantor had furnished such Indemnified Party with the
number of copies of such amended or supplemented Prospectus
requested by such Indemnified Party a reasonable period of time
prior to such sale; and (C) thereafter such Indemnified Party
fails to deliver such Prospectus as so amended or supplemented
prior to or concurrently with the sale by such Indemnified Party
of the Registrable Series A Notes to the Person asserting such
loss, claim, damage, liability or expense; and provided, further,
that this indemnity agreement does not apply to any Indemnified
Party with respect to any loss, liability, claim, damage or
expense to the extent arising out of any untrue statement or
omission or alleged untrue statement or omission contained in any
Registration Statement (or any amendment thereto) or Prospectus
(or any amendment or supplement thereto) made in reliance upon
and in conformity with written information furnished to the
Company or the Guarantor by such Indemnified Party expressly for
use in such Registration Statement (or such amendment thereto) or
such Prospectus (or such amendment or supplement thereto).
(b) Indemnification by Holders, Underwriters, Etc. (i) In
connection with any Registration Statement in which a Holder is
(20)
<PAGE>
participating, such Holder severally agrees to indemnify and hold
harmless the Company, the Guarantor and the other selling
Holders, and each of their respective Affiliates (including any
director, officer, trustee, employee, agent, attorney or Person,
if any, who controls the Company, the Guarantor or any other
selling Holder within the meaning of Section 15 of the Securities
Act), against any and all loss, liability, claim, damage and
expense described in the indemnity contained in Section 7(a)
hereof; provided however, that any settlement of the type
described in Section 7(a)(ii) is effected with the written
consent of such Holder, as incurred, but only with respect to
untrue statements or omissions, or alleged untrue statements or
omissions, made in a Registration Statement (or any amendment
thereto) or any Prospectus (or any amendment or supplement
thereto) in reliance upon and in conformity with written
information furnished to the Company or the Guarantor by such
selling Holder expressly for use in such Registration Statement
(or any amendment thereto) or such Prospectus (or any amendment
or supplement thereto); and provided further, however, that an
indemnifying Holder shall not be required to provide
indemnification in any amount in excess of the amount by which
(A) the total price at which the Registrable Series A Notes sold
by such indemnifying Holder and its affiliated indemnifying
Holders and distributed to the public were offered to the public
exceeds (B) the amount of any damages which such indemnifying
Holder has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged
omission.
(ii) The Company and the Guarantor shall be entitled
to receive indemnities from underwriters, selling brokers, dealer
managers and similar securities industry professionals
participating in the distribution, to the same extent as provided
above with respect to information so furnished in writing by such
Persons specifically for inclusion in any Prospectus or
Registration Statement.
(c) Conduct of Indemnification Proceedings. Each
indemnified party or parties under this Section 7 shall give
reasonably prompt notice to each indemnifying party or parties of
any action or proceeding commenced against it or them in respect
of which indemnity may be sought hereunder, but failure to so
notify an indemnifying party or parties shall not relieve it or
them from any liability which it or they may have under this
indemnity agreement, except to the extent that the indemnifying
party or parties have been prejudiced materially by such failure.
If the indemnifying party or parties so elect, within a
reasonable time after receipt of such notice, the indemnifying
party or parties may assume the defense of such action or
proceeding at such indemnifying party's or parties' expense with
counsel chosen by the indemnifying party or parties and approved
(21)
<PAGE>
by the indemnified parties defendant in such action or
proceeding, which approval shall not be unreasonably withheld;
provided, however, that if such indemnified party or parties
reasonably determine that a conflict of interest exists where it
is advisable for such indemnified party or parties to be
represented by separate counsel or that, upon advice of counsel,
there may be legal defenses available to them which are different
from or in addition to those available to the indemnifying party,
then the indemnifying party or parties shall not be entitled to
assume such defense and the indemnified party or parties shall be
entitled to separate counsel at the indemnifying party's or
parties' expense. If an indemnifying party is not so entitled to
assume the defense of such action or does not assume such
defense, after having received the notice referred to in the
first sentence of this paragraph, the indemnifying party will pay
the reasonable fees and expenses of one lead counsel and one
local counsel for the indemnified party or parties. In such
event, however, no indemnifying party or parties will be liable
under this Section 7 for any settlement effected without the
written consent of such indemnifying party or parties (which
shall not be unreasonably withheld) unless a complete release of
such indemnifying party or parties is obtained as part of such
settlement. If an indemnifying party is entitled to assume, and
promptly assumes, the defense of such action or proceeding in
accordance with this Section 7(c), such indemnifying party shall
not be liable for any fees and expenses of counsel for the
indemnified parties incurred thereafter in connection with such
action or proceeding.
(d) Contribution. (i) If the indemnification provided for
in this Section 7 is held to be unenforceable although applicable
in accordance with its terms in respect of any losses, claims,
damages, liabilities or expenses suffered by an indemnified party
referred to therein, then each applicable indemnifying party, in
lieu of indemnifying such indemnified party, shall contribute to
the amount paid or payable by such indemnified party as a result
of such losses, claims, damages, liabilities or expenses in such
proportion as is appropriate to reflect the relative fault of the
Company and the Guarantor on the one hand and of the selling
Holders (including, in each case, that of their officers,
directors, employees and agents) on the other in connection with
the statements or omissions which resulted in such losses,
claims, damages, liabilities or expenses, as well as any other
relevant equitable considerations. The relative fault of the
Company on the one hand and of the selling Holders (including, in
each case, that of their officers, directors, employees and
agents) on the other shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Company or
the Guarantor, on the one hand, or by or on behalf of the selling
(22)
<PAGE>
Holders, on the other, and the parties' relative intent,
knowledge, access to information and opportunity to correct or
prevent such statement or omission. The amount paid or payable
by a party as a result of the losses, claims, damages,
liabilities and expenses referred to above shall be deemed to
include, subject to the limitations set forth in Section 7(c),
any legal or other fees or expenses reasonably incurred by such
party in connection with investigating or defending any action or
claim.
(ii) The Company, the Guarantor and each Holder of
Registrable Series A Notes agree that it would not be just and
equitable if contribution pursuant to this Section 7(d) were
determined by pro rata allocation or by any other method of
allocation which does not take account of the equitable consid-
erations referred to in paragraph (i) above. Notwithstanding the
provisions of this Section 7(d), in the case of distributions to
the public an indemnifying Holder shall not be required to
contribute any amount in excess of the amount by which the total
price at which the Registrable Series A Notes sold by such
indemnifying Holder or its affiliated indemnifying Holders and
distributed to the public were offered to the public exceeds the
amount of any damages which such indemnifying Holder has
otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No
Person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to
contribution from any Person who was not guilty of such
fraudulent misrepresentation.
8. Rule 144 and Rule 144A.
For so long as the Company is subject to the reporting
requirements of Section 13 or 15 of the Exchange Act, each of the
Company and the Guarantor covenants that it will file the reports
required to be filed by it under the Securities Act and Section
13(a) or 15(e) of the Exchange Act and the rules and regulations
adopted by the SEC thereunder, that if it ceases to be so
required to file such reports, it will upon the request of any
Holder (i) make publicly available such information as is
necessary to permit sales pursuant to Rule 144 under the
Securities Act, (ii) deliver such information to a prospective
purchaser as is necessary to permit sales pursuant to Rule 144A
under the Securities Act and it will take such further action as
any Holder may reasonably request, and (iii) take such further
action that is reasonable in the circumstances, in each case, to
the extent required from time to time to enable such Holder to
sell its Registrable Series A Notes without registration under
the Securities Act within the limitation of the exemptions
provided by (a) Rule 144 under the Securities Act, as such Rule
may be amended from time to time, (b) Rule 144A under the
(23)
<PAGE>
Securities Act, as such Rule may be amended from time to time, or
(c) any similar rules or regulations hereafter adopted by the
SEC. Upon the request of any Holder, the Company and the
Guarantor will deliver to such Holder a written statement as to
whether it has complied with such requirements. Notwithstanding
the foregoing, nothing in this Section 9 shall be deemed to
require the Company to register any Securities under the Exchange
Act.
9. Miscellaneous.
(a) No Inconsistent Agreements. Neither the Company nor
the has entered into nor will the Company or the Guarantor on or
after the date of this Agreement enter into any agreement which
is inconsistent with the rights granted to the Holders in this
Agreement or otherwise conflicts with the provisions hereof.
Neither Company nor the Guarantor has not entered or will enter
into any other agreement with respect to its securities granting
any piggy-back registration rights with respect to a Registration
Statement.
(b) Amendments and Waivers. The provisions of this
Agreement, including the provisions of this sentence, may not be
amended, modified or supplemented, and waivers or consents to
departures from the provisions hereof may not be given unless the
Company has obtained the written consent of the Majority Holders;
provided, however, that no amendment, modification or supplement
or waiver or consent to the departure with respect to the
provisions of Section 7 hereof shall be effective as against any
Holder unless consented to in writing by such Holder.
(c) Notices. All notices and other communications provided
for or permitted hereunder shall be made in writing by hand
delivery, registered first-class mail, telex, telecopier, or any
courier guaranteeing overnight delivery (i) if to a Holder, at
the most current address given by such Holder to the Company by
means of a notice given in accordance with the provisions of this
Section 9(c), which address initially is, with respect to each
Purchaser, the address set forth next to such Purchaser's name on
the signature pages of the Purchase Agreement, with a copy to
Ropes & Gray, One International Place, Boston, Massachusetts
02110, Attention: Robert L. Nutt, Esq., or (ii) if to the
Company, at Brigantine Boulevard and Huron Avenue, Atlantic City,
New Jersey 08401, Attention: Thomas P. Venier, or such other
address, notice of which is given in accordance with the
provisions of this Section 9(c), with a copy to Willkie Farr &
Gallagher, One Citicorp Center, 153 East 53rd Street, New York,
New York 10022, Attention: Thomas M. Cerabino, Esq.
All such notices and communications shall be deemed to have
been duly given: at the time delivered by hand, if personally
(24)
<PAGE>
delivered; five business days after being deposited in the mail,
postage prepaid, if mailed; when answered back, if telexed; when
receipt is acknowledged, if telecopied; and on the next business
day if timely delivered to an air courier guaranteeing overnight
delivery.
Copies of all such notices, demands or other communications
shall be concurrently delivered by the Person giving the same to
the Trustee at the address specified in the Indenture.
(d) Successors and Assigns. This Agreement shall inure to
the benefit of and be binding upon the successors, assigns and
transferees of each of the parties, including, without limitation
and without the need for an express assignment, subsequent
Holders. If any successor, assignee or transferee of any Holder
shall acquire Registrable Series A Notes, in any manner, whether
by operation of law or otherwise, such Registrable Series A Notes
shall be held subject to all of the terms of this Agreement, and
by taking and holding such Registrable Series A Notes such Person
shall be conclusively deemed to have agreed to be bound by and to
perform all of the terms and provisions of this Agreement and
such Person shall be entitled to receive the benefits hereof.
(e) Counterparts. This Agreement may be executed in any
number of counterparts, each of which, when so executed and
delivered, shall be deemed to be an original, but all of which
counterparts, taken together, shall constitute one and the same
instrument.
(f) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise
affect the meaning hereof.
(g) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK,
AS APPLIED TO CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF
NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW. EACH
OF THE COMPANY AND THE GUARANTOR HEREBY IRREVOCABLY SUBMITS TO
THE JURISDICTION OF ANY NEW YORK STATE COURT SITTING IN THE
BOROUGH OF MANHATTAN, CITY OF NEW YORK, OR ANY FEDERAL COURT
SITTING IN THE BOROUGH OF MANHATTAN, CITY OF NEW YORK IN RESPECT
OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO
THIS AGREEMENT, AND IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT
OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE JURISDICTION
OF THE AFORESAID COURTS. NOTHING HEREIN SHALL AFFECT THE RIGHT
OF ANY PERSON TO SERVE PROCESS IN ANY MANNER PERMITTED BY LAW OR
TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST THE
COMPANY AND THE GUARANTOR IN ANY OTHER JURISDICTION.
(h) Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any
(25)
<PAGE>
circumstance, is held to be invalid, illegal or unenforceable,
the validity, legality and enforceability of any such provisions
in every other respect and of the remaining provisions contained
herein shall not be affected or impaired thereby.
(i) Specific Performance. The parties hereto acknowledge
that there would be no adequate remedy at law if any party fails
to perform any of its obligations hereunder, and accordingly
agree that each party, in addition to any other remedy to which
it may be entitled at law or in equity, shall be entitled to
compel specific performance of the obligations of any other party
under this Agreement in accordance with the terms and conditions
of this Agreement in any court of the United States or any State
thereof having jurisdiction.
(j) Entire Agreement. This Agreement is intended by the
parties as a final expression of their agreement and intended to
be a complete and exclusive statement of the agreement and
understanding of the parties hereto in respect of the subject
matter contained herein. There are no restrictions, promises,
warranties or undertakings other than those set forth or referred
to herein, with respect to the registration rights granted by the
Company with respect to the Securities sold pursuant to the
Purchase Agreement. This Agreement supersedes all prior
agreements and understandings between the parties with respect to
such subject matter.
(k) Securities Held by the Company or Its Respective
Affiliates. Whenever the consent or approval of Holders of a
specified percentage of Registrable Series A Notes is required
hereunder, Registrable Series A Notes held by the Company or its
respective Affiliates (other than any Holders that are deemed to
be such Affiliates solely by reason of their holdings of such
Registrable Series A Notes) shall not be counted in determining
whether such consent or approval was given by the Holders of such
required percentage. <PAGE>
(26)
<PAGE>
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first written above.
TRUMP'S CASTLE ASSOCIATES
By:_____________________________
Name:
a General Partner
TRUMP'S CASTLE FUNDING, INC.
By:
Name:
Title:
PUTNAM PREMIER INCOME TRUST
PUTNAM MASTER INCOME TRUST
PUTNAM CAPITAL MANAGER TRUST
- PCM HIGH YIELD FUND
PUTNAM MASTER INTERMEDIATE INCOME TRUST
PUTNAM DIVERSIFIED INCOME TRUST
PUTNAM MANAGED HIGH YIELD TRUST
PUTNAM CAPITAL MANAGER TRUST
- PCM DIVERSIFIED INCOME FUND
PUTNAM HIGH YIELD ADVANTAGE FUND
PUTNAM HIGH YIELD TRUST
PUTNAM HIGH INCOME CONVERTIBLE AND
BOND FUND
By
Name:
Title:
(27)
<PAGE>
AMENDED & RESTATED NOMINEE AGREEMENT
This agreement is made this ____ day of December, 1993,
between Trump's Castle Funding, Inc. (the "Nominee"), a New
Jersey corporation, and Trump's Castle Associates (the "Debtor"),
a New Jersey partnership composed of Donald J. Trump (as 49.995%
General Partner), TC/GP, Inc. ("TC/GP"), a Delaware corporation
(as 49.995% General Partner) and Trump's Castle Hotel & Casino,
Inc. ("TCHI"), a New Jersey corporation (as .01% General
Partner), under the Amended and Restated Agreement of
Partnership, dated as of May 29, 1992, between TCHI, TC/GP and
Donald J. Trump.
WHEREAS, Debtor expects to cause Nominee to issue its
new 11-1/2% Senior Secured Notes, due 2000 in the principal
amount of up to $37,000,000, its new 11-3/4% Mortgage Notes due
2003 in the principal amount of up to $251,932,874 and its new
Increasing Rate Subordinated Pay-In-Kind Notes due 2005 in the
principal amount of up to $52,065,166 (together, the "Nominee
Bonds") pursuant to the terms of the Senior Note Indenture, the
Mortgage Note Indenture and the PIK Note Indenture to be entered
into among the Debtor, the Nominee and First Bank National
Association (the "Trustee"), substantially in the forms annexed
hereto as Exhibit A, Exhibit B and Exhibit C, (i) in exchange for
the bonds issued by Nominee pursuant to the Indenture dated May
29, 1992 by and among the Debtor, the Nominee and the Trustee
(the "Old Bonds"), (ii) in exchange for common stock of TC/GP
held by the holders of the Old Bonds and (iii) to use the
proceeds therefrom to redeem the unexchanged Old Bonds;
WHEREAS, the Nominee issued the Old Bonds at the
direction of and as nominee for the Debtor pursuant to the
Nominee Agreement, dated as of March 24, 1992, by and between
Nominee and Debtor, and the Nominee and the Debtor wish to
confirm and continue such relationship and the functions of each
of them;
WHEREAS, the Debtor has expressed its desire that such
Nominee Bonds be issued by the Nominee for the purpose, among
other things, of increasing the participation of institutional
lenders in funding such bond issue;
WHEREAS, the Debtor will, simultaneously with the
issuance of the Nominee Bonds, issue to the Nominee new debt
obligations ("Debtor Bonds") having identical principal amounts
and bearing substantially identical terms as the Nominee Bonds in
substitution and exchange for the debt obligation of the Debtor
currently held by the Nominee having an identical principal
amount and bearing substantially identical terms as the Old
Bonds;
(1)
<PAGE>
WHEREAS, the Nominee has not advanced, will not advance
and will not be required to advance any of the funds necessary to
acquire, hold, make payments of interest and repay the principal
amount at maturity or otherwise on or in respect of such Nominee
Bonds except to the extent of Debtor's payments on the Debtor
Bonds to Nominee;
WHEREAS, the Nominee Bonds will be secured by an
assignment by the Nominee to the Trustee of the Debtor Bonds and
will be guaranteed by the Debtor; and
WHEREAS, the Nominee is solely engaged in the business
of holding and issuing partnership debt exclusively as a nominal
debtor, lender and issuer and not as a true debtor, lender or
issuer on its own behalf.
NOW, THEREFORE, the parties hereto covenant and agree
as follows:
(1) The Nominee shall hold title to the Debtor Bonds
solely as a nominal bondholder without any beneficial right to,
ownership of, or interest in the Debtor Bonds or the income
therefrom and shall assign such Debtor Bonds to the Trustee to
secure the Nominee Bonds.
(2) The Nominee shall be the nominal debtor on the
Nominee Bonds, and such Nominee Bonds shall be issued in
principal amounts and payment terms which are identical to the
Debtor Bonds and such Nominee Bonds will be issued solely in the
Nominee's capacity as a nominal issuer and debtor without any
liability for payments of principal or interest thereon except to
the extent of payments received by the Nominee from Debtor with
respect to the Debtor Bonds.
(3) The Debtor and its successors and assigns will pay
the Nominee a fee of $100 per year for acting as a nominal
debtor, lender and issuer, plus such additional fees as may be
required from time to time for the purpose of reimbursing Nominee
for expenses incurred that relate to the Debtor Bonds and the
associated Nominee Bonds.
(4) The Debtor shall pay any and all costs of the
Nominee relating to its role as a nominal debtor, lender and
issuer on behalf of the Debtor.
(5) The Nominee shall fully disclose to all interested
parties that it acts exclusively as a nominal debtor, lender and
issuer for the Debtor and that the Debtor is the true and
ultimate debtor and issuer.
(2)
<PAGE>
(6) All expenses for the Nominee's acquisition of the
Debtor Bonds and the Nominee's issuance of the Nominee Bonds
shall be paid exclusively by the Debtor.
(7) The Nominee and Debtor hereby confirm and continue
their relationship as nominal and true debtor, respectively, and
agree that the Nominee shall act in respect of any matters not
described above only as directed by the Debtor.
(3)
<PAGE>
<PAGE>
IN WITNESS WHEREOF, the undersigned have executed this
Amended and Restated Nominee Agreement on the day first written
above.
TRUMP'S CASTLE FUNDING, INC.
By:____________________________
John P. Burke
Vice-President
TRUMP'S CASTLE ASSOCIATES
By:____________________________
Roger P. Wagner
President
(4)
<PAGE>
AMENDMENT TO INDENTURE
Dated as of December 28, 1993
among
TRUMP'S CASTLE FUNDING, INC.
TRUMP'S CASTLE ASSOCIATES
and
FIRST BANK NATIONAL ASSOCIATION
THIS AMENDMENT TO INDENTURE dated as of the 28th day of
December, 1993 (this "Amendment"), by and among TRUMP'S CASTLE
FUNDING, INC., a New Jersey corporation ("TCFI"), TRUMP'S CASTLE
ASSOCIATES, a New Jersey general partnership (the "Guarantor"),
and FIRST BANK NATIONAL ASSOCIATION, a national banking
association organized and existing under the laws of the United
States (the "Trustee"), amends the Amended and Restated
Indenture, dated as of May 29, 1992 (the "Indenture") by and
among TCFI, the Guarantor and the Trustee (all capitalized terms
being used herein as defined in the Indenture, unless the context
requires otherwise).
WHEREAS, TCFI and the Guarantor have proposed to the
Trustee that the Indenture be amended to modify the minimum
period of notice to the Trustee prior to the Redemption of Bonds
from 45 days prior to the Redemption Date to two business days
prior to such date and to modify the minimum period of notice to
the Bondholders prior to the Redemption Date from 30 days prior
to the Redemption Date to two business days prior to such date;
and
WHEREAS, consent to such amendment by the holders of
not less than 66-2/3% in Outstanding Amount of the Bonds at the
time Outstanding has been duly received and evidenced pursuant to
Section 11.02 of the Indenture; and
WHEREAS, the execution of this Amendment has been duly
authorized by the Board of Directors of TCFI and the Board of
Partner Representatives of the Guarantor, including, pursuant to
Section 11.07 of the Indenture, all of the TC/GP Representatives,
and all things necessary to make this Amendment a valid, binding
and legal instrument according to its terms have been done and
performed.
NOW, THEREFORE, THIS AMENDMENT WITNESSETH: That, for
and in consideration of the premises and of the mutual covenants
herein contained, the consents of certain Bondholders to the
modifications and alterations hereinafter set forth, and for
(1)
<PAGE>
other valuable consideration, the receipt whereof is hereby
acknowledged, and in order to provide for the modification and
amendment of the Indenture as hereinafter set forth, TCFI and the
Guarantor hereby covenant and agree with the Trustee, for the
equal and proportionate benefit of those who hold Bonds now
Outstanding and who shall hereafter hold Bonds, as follows:
SECTION I. Amendments.
1. Section 13.02 of the Indenture entitled "Election
to Redeem; Notice to Trustee" shall be, and it hereby is, amended
and restated to read in its entirety as follows:
Section 13.02. Election to Redeem; Notice to
Trustee.
The election of TCFI to redeem the Bonds in
accordance with Section 13.01 shall be
evidenced by a Board Resolution and a TCFI
Order to the Trustee. TCFI shall, at least
two business days prior to the Redemption
Date fixed by TCFI, furnish the Trustee with
an Officers Certificate stating such
Redemption Date.
2. The first paragraph of Section 13.03 of the
Indenture entitled "Notice of Redemption" shall be, and it hereby
is, amended and restated to read in its entirety as follows:
Notice of redemption shall be given by TCFI
or, at TCFI's request, by the Trustee in the
name and at the expense of TCFI by first-
class mail, postage prepaid, mailed not less
than two nor more than 60 business days prior
to the Redemption Date, to each Holder of
Bonds, at his address appearing in the Bond
Register.
SECTION 2. Effect of the Amendment.
The Indenture is and is deemed to be modified and altered in
accordance herewith, and the respective rights, limitations of
rights, obligations, duties and immunities under the Indenture of
TCFI, the Guarantor and Bondholders shall hereafter be
determined, exercised and enforced under the Indenture subject in
all respects to the modifications and alterations and assumptions
and substitution herein contained, and all the terms and
conditions hereof are, and are deemed to be, part of the terms
and conditions of the Indenture for any and all purposes.
(2)
<PAGE>
SECTION 3. Responsibility for Recitals, Etc.
The recitals herein shall be taken as the statements of TCFI, and
the Guarantor, and the Trustee assumes no responsibility for the
correctness thereof. The Trustee makes no representations as to
the validity or sufficiency of this Amendment.
SECTION 4. Governing Law. The Amendment shall be
deemed to be a contract made under the laws of the State of New
York and for all purposes shall be construed in accordance with
the laws of said State.
SECTION 5. Each of the provisions of this Amendment is
subject to and shall be enforced in compliance with the
provisions of the New Jersey Casino Control Act and the
regulations promulgated thereunder, unless such provisions are in
conflict with the Trust Indenture Act, in which case the Trust
Indenture Act shall control.
(3)
<PAGE>
<PAGE>
SECTION 6. Execution and Counterparts.
This Amendment may be executed in any number of counterparts,
each of which shall be an original, but such counterparts shall
together constitute but one and the same instrument.
TRUMP'S CASTLE FUNDING, INC.
Attest:_____________________ By:_________________________
Donald J. Trump
President
TRUMP'S CASTLE ASSOCIATES
Attest:_____________________ By:________________________
Donald J. Trump
Its Managing Director
FIRST BANK NATIONAL
ASSOCIATION
As Trustee
Attest:_____________________ By:_______________________
(4)
<PAGE>
<PAGE>
STATE OF NEW YORK ss.:
COUNTY OF NEW YORK
BE IT REMEMBERED, that on _____________, 1993, before me,
the subscriber, personally appeared DONALD J. TRUMP, the
President of TRUMP'S CASTLE FUNDING, INC., the corporation named
in the within document, who, I am satisfied, is the person who
has signed the within instrument; and I having first made known
to him the contents thereof he acknowledged that he signed,
sealed with the corporate seal and delivered the said instrument
as such officer aforesaid; that the within instrument is the
voluntary act and deed of the corporation, made by virtue of
authority from its Board of Directors.
Notary Public
(5)
<PAGE>
<PAGE>
STATE OF NEW YORK ss.:
COUNTY OF NEW YORK
BE IT REMEMBERED, that on _____________, 1993, before me,
the subscriber, personally appeared DONALD J. TRUMP, the Managing
Partner of TRUMP'S CASTLE ASSOCIATES, a New Jersey general
partnership, who, I am satisfied, is the person who has signed
the within instrument on behalf of such general partnership, and
I having first made known to him the contents thereof he
thereupon acknowledged that he signed and delivered the said
instrument in his capacity as such Managing Partner aforesaid,
and that the within instrument is the voluntary act and deed of
said general partnership.
Notary Public
(6)
<PAGE>
<PAGE>
STATE OF ss.:
COUNTY OF
BE IT REMEMBERED, that on _____________, 1993, before me,
the subscriber, personally appeared Frank P. Leslie, the
Assistant V.P. of FIRST BANK NATIONAL ASSOCIATION, the national
banking association named in the within document, who, I am
satisfied, is the person who has signed the within instrument;
and I having first made known to him the contents thereof he
acknowledge that he signed, sealed, with the corporate seal and
delivered the said instrument as such officer aforesaid; that the
within instrument is the voluntary act and deed of said national
banking association, made by virtue of authority from its Board
of Directors.
Notary Public
(7)
<PAGE>
