INDENTURE OF MORTGAGE AND SECURITY AGREEMENT
(Senior Partnership Upstream Note Mortgage)
TRUMP'S CASTLE ASSOCIATES, L.P.
Mortgagor/Debtor
and
TRUMP'S CASTLE HOTEL & CASINO, INC.,
Mortgagee/Secured Party
Dated as of April 17, 1998
Record and Return to:
▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
Ropes & ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
TABLE OF CONTENTS
ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF
GENERAL APPLICATION.................................................8
Section 1.1. Definitions..................................8
Section 1.2 Notices......................................18
Section 1.3. Form and Contents of Documents Delivered to
Mortgagee...................................20
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..........................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 TCHI 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..........................25
Section 1.16 Senior Partnership Upstream Note Mortgage
Deemed to be Security Agreement.............25
Section 1.17. No Duplication of Notices or Payments........26
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. Acceleration of Maturity; Recision and
Annulment...................................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.........31
Section 3.11. Incidents of Sale............................32
Section 3.12. Receiver.....................................33
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Section 3.13. Suits to Protect the Trust Estate............33
Section 3.14. Management of the Premises...................34
ARTICLE FOUR CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER
OR LEASE............................................................34
Section 4.1. Consolidation, Merger, Conveyance or
Transfer only on Certain Terms..............34
Section 4.2. Successor Entity Substituted.................34
ARTICLE FIVE COVENANTS AND REPRESENTATIONS OF MORTGAGOR..............34
Section 5.1. Payment of Principal, Premium and Interest...34
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.......39
Section 5.6. After-Acquired Property; Further
Assurances; Recording.......................40
Section 5.7. Payment of Taxes and Certain Claims;
Maintenance of Properties; Compliance
with Legal Requirements and Insurance
Requirements................................42
Section 5.8. Permitted Contests...........................43
Section 5.9. Mechanics' and Other Liens...................44
Section 5.10. To Insure....................................44
Section 5.11. Limitations on Building Demolition,
Alterations, Improvements and New
Construction................................50
Section 5.12 Leases.......................................52
Section 5.13. Compliance Certificates......................54
Section 5.14. To Keep Books; Inspection by Mortgagee.......54
Section 5.15. Advances by Mortgagee........................55
Section 5.16. Waiver of Stay, Extension or Usury Laws......55
Section 5.17. Eminent Domain...............................55
Section 5.18. Facility Leases..............................57
Section 5.19. Indemnification..............................61
Section 5.20 TCHI Mortgages...............................63
SCHEDULE 1 OWNED LAND................................................1-1
SCHEDULE 2 LEASED LAND...............................................2-1
SCHEDULE 3 EXISTING ENCUMBRANCES.....................................2-1
SCHEDULE 4 FORM OF NON-DISTURBANCE AND
ATTORNMENT AGREEMENT.................................................2-1
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INDENTURE OF MORTGAGE AND SECURITY AGREEMENT
INDENTURE OF MORTGAGE AND SECURITY AGREEMENT ("Senior Partnership Upstream
Note Mortgage" or "Mortgage"), dated as of April 17, 1998 between TRUMP'S CASTLE
ASSOCIATES, L.P. a New Jersey limited partnership having an office at Brigantine
Boulevard and Huron Avenue, Atlantic City, New Jersey 08401 ("Mortgagor"), and
TRUMP'S CASTLE HOTEL & CASINO, INC., a New Jersey corporation having an office
at ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
("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 Upstream 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 Upstream Note; (iii) payment by Mortgagor to Mortgagee of all
sums expended or advanced by Mortgagee pursuant to any term or provision of this
Senior Partnership Upstream Note Mortgage; (iv) performance of each covenant,
term, condition and agreement of Mortgagor herein or in the Senior Partnership
Upstream 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 Upstream
Note and this Senior Partnership Upstream 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 Partnership
Upstream Note Mortgage and has bargained, sold, alienated, 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.
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 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 as
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.
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
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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 Upstream 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 Fifth 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;
(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
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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 Mortgagor, (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) Mortgagor'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 is 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
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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;
(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.
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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 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 ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ 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
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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 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, alienated, 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.
PROVIDED, HOWEVER, that the lien of this Senior Partnership Upstream Note
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Mortgage upon the Trust Estate shall rank pari passu with the lien of the Senior
Note Mortgage, the lien of the Senior Guarantee Mortgage, the lien of the TCHI
Note Guarantee Mortgage and the lien of any other Working Capital Facility
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:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF
GENERAL APPLICATION
Section 1.1. Definitions.
For all purposes of this Senior Partnership Upstream 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 TCHI 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
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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.
"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
"▇▇▇▇▇ ▇▇▇▇▇▇ Hotel Casino 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
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
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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 which has not yet been cured.
"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," "▇▇▇▇▇," "▇▇▇▇▇'▇
Castle Casino Resort", "▇▇▇▇▇ ▇▇▇▇▇▇", "▇▇▇▇▇ ▇▇▇▇▇▇ Hotel Casino", "▇▇▇▇▇▇ ▇.
▇▇▇▇▇," "▇▇▇▇▇▇ ▇▇▇▇▇" 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;
(5) any property acquired pursuant to secured purchase-money indebtedness
permitted under clause "h" of the definition of "Permitted Indebtedness" in the
TCHI Note Indenture; and
(6) all equity interests in any Person now owned or hereafter acquired by
Mortgagor (including without limitation, the capital stock of the Company) which
are required to be pledged under the indenture (as the same may be amended,
modified, restated or supplemented) relating to the 15 1/2% senior secured notes
due 2005 of ▇▇▇▇▇ Hotels & Casino Resorts Holdings, L.P. and ▇▇▇▇▇ Hotels &
Casino Resorts Funding, Inc.
"Existing Encumbrances" means the matters set forth in Schedule 3 hereto.
"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
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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 TCHI 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 TCHI 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 TCHI 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 Upstream 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 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
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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.
"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 Industrial Site Recovery Act and
the New Jersey Spill Compensation and Control Act of
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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, 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 ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ State ▇▇▇▇▇▇, 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, a
memorandum of which Lease was recorded June 2, 1992 in the Atlantic County
Registry of Deeds in Book 5365, Page 211.
"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 Documents" has the meaning set forth in Section 1.1 of the
Mortgage Note Indenture.
"Mortgage Note Indenture" means that certain indenture dated as of
December 28, 1993 among the Company, as issuer, the Mortgagor, as guarantor, and
First Bank National Association (now known as U.S. 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 and assigns.
"Mortgages" mean the Senior Guarantee Mortgage, the Senior Note Mortgage,
the TCHI Note Guarantee Mortgage and the Senior Partnership Upstream Note
Mortgage.
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"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. ▇▇.
▇▇▇▇▇▇▇, dated the date hereof.
"Outstanding Amount" has the meaning set forth in Section 1.1 of the TCHI
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 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.
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"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;
(3) F,F&E Financing Agreements permitted by the Senior Note Indenture or
the TCHI Note Indenture;
(4) the liens of the Trustee provided for in Section 6.6 of the Senior
Note Indenture or the TCHI 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 (including the TCHI Note Guarantee
Mortgage and the Senior Partnership Upstream Note Mortgage);
(8) the liens of the Mortgage Documents;
(9) the liens of the Mortgages and any rights granted as provided therein;
(10) any lien or encumbrance permitted under Section 5.3 of this Mortgage;
(11) any lien or encumbrance securing purchase money indebtedness
permitted by the Senior Note Indenture and the TCHI Note Indenture;
(12) modifications, refinancings, extension, renewals or replacements, in
whole or in part, of the liens described in clauses (2) through (11) of this
definition to the extent permitted by the Senior Note Indenture and the TCHI
Note Indenture; and
(13) any Facility Lease now existing or hereafter entered into.
"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 dated as of December 28,
1993
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among the Company, as issuer, the Mortgagor, as guarantor, and First Bank
National Association (now known as U.S. 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 TCHI Note
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 U.S. Bank National Association, as
trustee, as mortgagee, and Mortgagor, as mortgagor, securing the Senior
Guarantee and evidencing a lien pari passu with the lien of this Mortgage, the
lien of the Senior Note Mortgage, the lien of the TCHI Note Guarantee Mortgage,
and the lien of any other Working Capital Facility Mortgage.
"Senior Indebtedness" means Indebtedness evidenced by the Senior
Partnership Note, the Senior Guarantee, the Senior Notes and any Working Capital
Facility (including, without limitation the TCHI Notes and the TCHI Guarantee)
and any amendments, extensions, renewals, replacements or restatements of any of
the foregoing to the extent permitted by the Senior Note Indenture and the TCHI
Note Indenture.
"Senior Mortgages" means the Senior Guarantee Mortgage and the Senior Note
Mortgage.
"Senior Note Indenture" means that certain indenture of even date herewith
between the Company, as issuer, the Mortgagor, as guarantor and U.S. Bank
National Association, 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 thereto entered into pursuant to
the applicable provisions thereof .
"Senior Note Mortgage" means the Indenture of Mortgage and Security
Agreement dated as of the date hereof between the Company, as mortgagee, and
Mortgagor, as mortgagor, which evidences a lien pari passu with the lien of this
Senior Partnership Upstream
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Note Mortgage, the lien of the Senior Guarantee Mortgage, the lien of TCHI Note
Guarantee Mortgage, and the lien of any other Working Capital Facility Mortgage.
"Senior Notes" means the 10 1/4% Senior Secured Notes due 2003 in the
original principal amount of $62,000,000 issued by the Company in the original
principal amount of $62,000,000 under the Senior Note Indenture.
"Senior Partnership Note" means that certain promissory note of even date
herewith in the original principal amount of $62,000,000 made by the Mortgagor
in favor of the Company, a copy of which is attached to the Senior Note
Indenture, and any amendments, extensions, renewals, replacements or
restatements thereof.
"Senior Partnership Upstream Note" means that certain promissory note of
even date herewith in the original principal amount of $5,000,000 made by the
Mortgagor in favor of TCHI, a copy of which is attached to the TCHI Note
Indenture, and any amendments, extensions, renewals, replacements or
restatements thereof.
"Senior Partnership Upstream Note Mortgage" means this Indenture of
Mortgage and Security Agreement, which evidences a lien pari passu with the lien
of the Senior Note Mortgage, the lien of the Senior Guarantee Mortgage, the lien
of the TCHI Note Guarantee Mortgage and the lien of any other Working Capital
Facility Mortgage.
"Senior TCHI Assignment Agreement" means the Senior TCHI Assignment
Agreement of even date herewith made by TCHI to the Trustee and acknowledged by
Mortgagor, providing for the assignment to the Trustee of the Senior Partnership
Upstream Note and this Senior Partnership Upstream Note Mortgage.
"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.
"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.
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"TCHI" means Trump's Castle Hotel & Casino, Inc., a corporation
incorporated under the laws of the State of New Jersey, or any other obligor on
the TCHI Notes (other than Mortgagor).
"TCHI Guarantee" means the guarantee by Mortgagor of TCHI's Indenture
Obligations (as defined in the TCHI Note Indenture) pursuant to Article 14 of
the TCHI Note Indenture.
"TCHI Notes" means the 10 1/4% Senior Secured Notes due 2003 in the
original principal amount of $5,000,000 issued by TCHI pursuant to the TCHI Note
Indenture.
"TCHI Note Indenture" means that certain indenture of even date herewith
among TCHI, as issuer, Mortgagor as guarantor and the Trustee, as trustee,
relating to the TCHI 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.
"TCHI Note 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 TCHI Guarantee and evidencing a lien pari
passu with the lien of this Senior Partnership Upstream Note Mortgage, the lien
of the Senior Note Mortgage, the lien of the Senior Guarantee Mortgage and the
lien of any other Working Capital Facility Mortgage.
"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 TCHI 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
TCHI Note Indenture.
"Working Capital Facility Mortgage" means any mortgage or other security
interest (including, without limitation, the TCHI Note Guarantee Mortgage and
this Senior Partnership Upstream Note Mortgage) or agreement which secures a
Working Capital Facility and which evidences a lien pari passu with the lien of
this Senior Partnership Upstream Note Mortgage, the lien of the Senior Note
Mortgage, the lien of the Senior Guarantee Mortgage, and the lien of the TCHI
Note Guarantee Mortgage.
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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, L.P.
▇▇▇▇▇ ▇▇▇▇▇▇ Hotel Casino
Brigantine Boulevard and ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Chief Financial Officer
and and after May 26, 1998:
▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇
One Citicorp Center ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
To Mortgagee:
Trump's Castle Funding, Inc.
▇▇▇▇▇ ▇▇▇▇▇▇ Hotel Casino
Brigantine Boulevard and ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Chief Financial Officer
and and after May 26, 1998
▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇
One Citicorp Center ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
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To the Trustee:
U.S. Bank National Association
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Corporate Trust Administration
(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, 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.
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Every application, certificate, report, affidavit, opinion, consent,
statement or other instrument required to be delivered to Mortgagee under this
Senior Partnership Upstream 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 Partnership Upstream Note Mortgage,
Mortgagor shall furnish to Mortgagee a Mortgagor's Certificate stating that all
conditions precedent, if any, provided for in this Senior Partnership Upstream
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 Partnership Upstream
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
Partnership Upstream 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
(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 TCHI 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
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successor or assign were in each case named as a party to this Mortgage.
(b) This Senior Partnership Upstream 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 TCHI Note Indenture.
Section 1.7. Separability Clause.
In case any provision in this Mortgage or the Senior Partnership Upstream
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 3.12, nothing in this Mortgage
or in the Senior Partnership Upstream 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 Upstream 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 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 Partnership Upstream 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
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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 Partnership Upstream Note 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 TCHI Note Indenture.
Whenever the provisions of this Senior Partnership Upstream Note Mortgage
and the provisions of the TCHI Note Indenture shall be inconsistent, the
provisions of the TCHI 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 Hotel & Casino, Inc. only so long as Trump's Castle Hotel &
Casino, Inc. is the holder of this Mortgage and the Senior Partnership Upstream
Note. Subsequent to the assignment thereof on the date of and pursuant to the
Senior TCHI Assignment Agreement by Trump's Castle Hotel & Casino, 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 TCHI 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 TCHI 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, powers and remedies were specifically granted by this Senior
Partnership Upstream Note Mortgage and the Senior Partnership Upstream 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 Partnership Upstream Note Mortgage, the Trustee shall
be named in lieu of Trump's Castle Hotel & Casino, 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 Hotel & Casino, 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 TCHI Assignment
Agreement, except as otherwise provided in Section 6.2 of the TCHI 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,
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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 TCHI 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 Partnership Upstream 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;
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(9) Mortgagor shall pay or cause to be paid to the Trustee all
compensation and other amounts provided in Section 6.6 of the TCHI 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 Hotel & Casino, 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 Partnership Upstream 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 paid by Mortgagor pursuant to
this Mortgage and the Senior Partnership Upstream Note and the conditions
precedent for the TCHI Note Indenture to cease, determine and become null and
void (except for any surviving rights of transfer or exchange of the TCHI Notes
provided in Section 13.1 of the TCHI Note Indenture and for the obligation to
pay the Trustee's fees and expenses provided in Section 6.6 of the TCHI Note
Indenture) in accordance with Section 13.1 of the TCHI Note Indenture shall have
occurred, or (b) there shall have occurred a "defeasance" (as defined in Section
4.2 of the TCHI Note Indenture) of the TCHI 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 Trust Indenture Act requires otherwise, in which
case the Trust Indenture Act shall control.
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(c) For the purposes of this Senior Partnership Upstream 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 Partnership Upstream 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 Partnership
Upstream 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.
Whenever it is provided in this Senior Partnership Upstream Note Mortgage
and the TCHI Note 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 this Senior Partnership Upstream Note Mortgage, and
the TCHI Note 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 TCHI Note 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 Upstream 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 TCHI 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.
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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.
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 TCHI 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
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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 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 TCHI Notes or the Senior
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Partnership Upstream 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 TCHI Notes or the Senior Partnership Upstream Note when
the same becomes due and payable at their Maturity; or
(c) default in the payment of any other sum due under the Senior
Partnership Upstream Note or this Senior Partnership Upstream 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 payment or performance of any obligation under the
Senior Guarantee at the time such payment or performance is required under
Article Fourteen of the TCHI Note Indenture.
(e) default in the performance, or breach, of any covenant of Mortgagor in
this Senior Partnership Upstream 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 a 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 TCHI Note
Indenture, shall occur and be continuing; or
(g) default by Mortgagor under any 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
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(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 Partnership Upstream Note 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.
(j) an "Event of Default", as defined in Section 3.1 of the Senior Note
Mortgage, the Senior Guarantee Mortgage, the TCHI Note Guarantee Mortgage or the
Mortgage Documents 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. Acceleration of Maturity; Recision and Annulment.
If an Event of Default (other than an Event of Default specified in
Section 5.1(g) or (h) of the TCHI Note Indenture) occurs and is continuing,
then, and in every such case, Mortgagee may declare the Outstanding Amount of
the Senior Partnership Upstream 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(g) or (h) occurs, the Outstanding Amount of the Senior
Partnership Upstream 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
Upstream 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 TCHI 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 TCHI Note Indenture.
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Section 3.4. Restoration of Rights and Remedies.
If Mortgagee has instituted any proceeding to enforce any right or remedy
under this Senior Partnership Upstream 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 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 Partnership Upstream 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 Upstream 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,
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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 marshaled 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
Upstream 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
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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
Upstream 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 Upstream 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 Upstream 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, ▇▇▇▇ 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;
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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 anyway 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 Upstream 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.
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
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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 TCHI 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 TCHI 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 TCHI 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
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 Upstream Note in accordance with the
terms of the Senior Partnership Upstream 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
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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 Partnership Upstream Note Mortgage on the date
hereof shall be superior, and not subordinate to the lien of any Permitted
Encumbrances (except for items 1, 2, 3, 4 and 11 contained in the definition of
Permitted Encumbrances and any other lien securing a Working Capital Facility
Mortgage to the extent that each thereof encumbers Mortgagor's interest in the
Trust Estate or any part thereof. Mortgagee shall from time to time after
receipt of a request of Mortgagee or the Trustee obtain instruments in form and
substance reasonably satisfactory to Mortgagee or the Trustee, as the case may
be, confirming the senior lien priority of this Senior Partnership Upstream Note
Mortgage over the lien of any such Permitted Encumbrances.
(c) Except as otherwise expressly permitted under this Mortgage and the
TCHI Note Indenture (including, without limitation, Article Eight of the TCHI
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 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
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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. 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
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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 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
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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 5.8, 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
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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 5.19, 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 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 Mortgages, 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 Mortgages, 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
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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 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 the
Existing Encumbrances and the pari passu liens of the Senior Note Mortgage, the
Senior Guarantee Mortgage and the TCHI Note Guarantee Mortgage;
(g)(i) all amounts due under the Mortgage Documents and the instruments
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 Mortgage Documents 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; and
(h) 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 items 1 and 3 listed on Schedule 3) and (b) the pari passu liens of
the Mortgages thereon (subject to items 1 and 3 listed on Schedule 3), 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 Partnership Upstream Note Mortgage.
Mortgagor shall, as provided in Section 5.12, from time to time subject to
the lien of this Senior Partnership Upstream 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
Person, Mortgagor shall use reasonable efforts to obtain
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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 Partnership
Upstream 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.
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 Upstream Note, this Senior
Partnership Upstream 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 Partnership Upstream Note
Mortgage or the TCHI 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 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.
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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 Senior
Partnership Upstream 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
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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 Senior Partnership Upstream 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 the termination of any Facility Lease, (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
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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 Senior Partnership Upstream 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
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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 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, (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, (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
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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, the lessors under the Facility Leases, with
respect to any Leased Facilities, (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 canceled, 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 Insurance Trustee, or action or proceeding with
respect thereto. 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
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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 the Indebtedness of
the Mortgagor, the Company or TCHI 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 the Indebtedness of
the Mortgagor, the Company or TCHI 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 Upstream 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 Senior Notes,
the Senior Note Indenture, the Senior Guarantee, the TCHI Notes, the TCHI Note
Indenture, the TCHI Guarantee, the Mortgage Notes or the Mortgage 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.
(ii) If the cost of Restoration is $10,000,000 or more, the net
insurance proceeds shall be paid by Mortgagee to the Insurance Trustee.
(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
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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 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
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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).
(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
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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, (ii) for debt service under the Senior Partnership Upstream
Note 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 Upstream 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 TCHI 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
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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 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
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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 Upstream 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 TCHI 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
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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 or to the holder of the Senior Note Mortgage, the holder of the Senior
Guarantee Mortgage, or the holder of the TCHI Note Guarantee 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,
(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, 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
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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.
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 Upstream 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
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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 Upstream 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 Upstream 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
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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 the
Indebtedness of the Mortgagor, the Company or TCHI 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, the Company or TCHI Indebtedness 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) (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 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. 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
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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) to the extent
of the then Outstanding Amount of the Senior Partnership Upstream 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 Senior Notes, the Senior Note Indenture, the Senior Guarantee,
the TCHI Notes, the TCHI Note Indenture, the TCHI Guarantee, the Mortgage Notes
or the Mortgage 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
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payment at the highest rate of interest set forth in the Senior Partnership
Upstream 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 Senior Partnership Upstream 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.
(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.
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(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 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
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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.
(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
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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 TCHI Note
Indenture, shall have occurred and be continuing under this Mortgage or
the TCHI 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 Mortgagee, as leasehold mortgagee, in form reasonably satisfactory to
Mortgagee.
Section 5.19. 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 5.19 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
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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 5.19 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 Upstream 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, ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ is hereby approved by Mortgagee.
Section 5.20 Senior 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 Senior Mortgages prior to the expiration of any notice
and/or cure period provided in each such Senior Mortgage. If a notice of default
has been given by the holder of the Senior Mortgages, 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 (or assignee of the mortgagor) under the Senior 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 the Senior Mortgages 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 Upstream Note. All sums so
paid and expended by Mortgagee and the interest thereon, shall be added to and
be
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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 Senior
Mortgages if (x) the collateral securing the lien thereof would be
increased thereby (other than after-acquired property required by the
terms of the Senior Mortgages to be encumbered thereby) or (y) such
modification, replacement or refinancing violates any other provision of
this Senior Partnership Upstream Note Mortgage or the TCHI Note Indenture
or (B) acquire or permit or suffer any Affiliate of Mortgagor to acquire
the Senior Mortgages 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 Senior Mortgages, the
notes secured thereby and any other instrument evidencing or securing the
indebtedness owing to any holder of the Senior Mortgages;
(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 Senior 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 Senior Mortgages
and shall promptly notify Mortgagee of any default under the Senior
Mortgages on the part of Mortgagor.
[Remainder of this Page Intentionally Left Blank]
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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, L.P., a
New Jersey limited partnership
By: Trump's Castle Hotel & Casino, Inc., its
general partner
Witness: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇ By: /s/ R. ▇▇▇▇▇ ▇▇▇▇▇
---------------------- -----------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇ Name: R. ▇▇▇▇▇ ▇▇▇▇▇
Title: Assistant Secretary and Vice
President
TRUMP'S CASTLE HOTEL & CASINO, INC., a New
Jersey Corporation
Witness: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇ By: /s/ R. ▇▇▇▇▇ ▇▇▇▇▇
---------------------- -----------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇ Name: R. ▇▇▇▇▇ ▇▇▇▇▇
Title: Assistant Secretary and Vice
President
-▇▇-
▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇ )
) ss.:
COUNTY OF NEW YORK )
BE IT REMEMBERED, that on this 17th day of April, 1998, before me the
subscriber, a Notary Public of the State of New York, personally appeared R.
▇▇▇▇▇ ▇▇▇▇▇, the Assistant Secretary and Vice President of TRUMP'S CASTLE HOTEL
& CASINO, INC., the general partner of TRUMP'S CASTLE ASSOCIATES, L.P., who I am
satisfied is the person who executed the within instrument and he acknowledged
that he signed and delivered the same as such officer on behalf of such entity
and that the within instrument is the voluntary act and deed of said corporation
made by virtue of the authority of its board of directors.
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------------
Notary Public of the State of New York
My Commission Expires:
(NOTARIAL SEAL)
-▇▇-
▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇ )
) ss.:
COUNTY OF NEW YORK )
BE IT REMEMBERED, that on this 17th day of April, 1998, before me the
subscriber, a Notary Public of the State of New York, personally appeared R.
▇▇▇▇▇ ▇▇▇▇▇, the Assistant Secretary and Vice President of TRUMP'S CASTLE HOTEL
& CASINO, INC., who I am satisfied is the person who executed the within
instrument and he acknowledged that he signed and delivered the same as such
officer on behalf of such entity and that the within instrument is the voluntary
act and deed of said corporation made by virtue of the authority of its board of
directors.
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------------
Notary Public of the State of New York
My Commission Expires:
(NOTARIAL SEAL)
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Consent of U.S. Bank National Association
The undersigned, being the mortgagee under that certain Indenture of Mortgage
and Security Agreement from Trump's Castle Associates to Trump's Castle Funding,
Inc. dated as of December 28, 1993 and recorded in the Atlantic County Registry
of Deeds in Mortgage Book 5238, Page 1, the mortgagee's interest in which was
assigned to First Bank National Association, now known as U.S. Bank National
Association, by a certain Senior Assignment Agreement dated as of December 28,
1993 and recorded in the Atlantic County Registry of Deeds in Assignment Book
651, Page 160 (the "Subordinate Associates Mortgage") hereby consents to and
acknowledges the provisions of the foregoing Senior Partnership Upstream Note
Mortgage and hereby subordinates the lien created by the Subordinate Associates
Mortgage to this Senior Partnership Upstream Note Mortgage.
U.S. BANK NATIONAL ASSOCIATION, a national
banking association
By: /s/ ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇
Title: Assistant Vice President
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
BE IT REMEMBERED, that on this 17th day of April, 1998, before me the
subscriber, a Notary Public of the State of New York, personally appeared
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, an Assistant Vice President of U.S. BANK NATIONAL
ASSOCIATION, a national banking association, who, I am satisfied, is the person
who executed the within instrument and he acknowledged that he signed and
delivered the same as such officer on behalf of such association and that the
within instrument is the voluntary act and deed of said association made by
virtue of the authority of its board of directors.
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------------
Notary Public of the State of New York
My Commission Expires:
(NOTARIAL SEAL)
-68-
Consent of U.S. Bank National Association
The undersigned, being the mortgagee under that certain Indenture of Mortgage
and Security Agreement from Trump's Castle Associates to First Bank National
Association, now known as U.S. Bank National Association, dated as of December
28, 1993 and recorded in the Atlantic County Registry of Deeds in Mortgage Book
5239, Page 1 (the "Subordinate Mortgage") hereby consents to and acknowledges
the provisions of the foregoing Senior Partnership Upstream Note Mortgage and
hereby subordinates the lien created by the Subordinate Mortgage to this Senior
Partnership Upstream Note Mortgage.
U.S. BANK NATIONAL ASSOCIATION, a national
banking association
By: /s/ ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇
Title: Assistant Vice President
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
BE IT REMEMBERED, that on this 17th day of April, 1998, before me the
subscriber, a Notary Public of the State of New York, personally appeared
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, an Assistant Vice President of U.S. BANK NATIONAL
ASSOCIATION, a national banking association, who, I am satisfied, is the person
who executed the within instrument and he acknowledged that he signed and
delivered the same as such officer on behalf of such association and that the
within instrument is the voluntary act and deed of said association made by
virtue of the authority of its board of directors.
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------------
Notary Public of the State of New York
My Commission Expires:
(NOTARIAL SEAL)
-69-
SCHEDULE 1
OWNED LAND
All the real property located in the City of Atlantic City, County of Atlantic,
and State of New Jersey and more particularly described as follows:
CASINO-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 ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇, and extending;
thence
1. North 45 degrees 50 minutes 06 seconds West, in and along the
Atlantic-Brigantine Boulevard, 56.63 feet; thence
2. North 19 degrees 16 minutes 38 seconds East, still in and along said
Boulevard, 81.94 feet to a point of curve; thence
3. Curving to the right in the arc of a circle having a radius of 783.00
feet, the arc length of 72.815 feet to a point of reverse curve; thence
4. Curving to the left in the arc of a circle having a radius of 837.00
feet, the arc length of 77.836 feet to another point of reverse curve; thence
5. Curving to the right in the arc of a circle having a radius of 2946.00
feet,, the arc length of 1017.42 feet to a point; thence
6. North 44 degrees 34 minutes 15 seconds East, 135.02 feet to a point of
curve; thence
7. Curving to the right in the arc of a circle having a radius of 2936.00
feet, the arc length of 105.48 feet to a point; thence
8. South 27 degrees 28 minutes 00 seconds East, at right angles to Huron
Avenue 842.02 feet to the northwesterly line of Huron Avenue; thence
9. South 62 degrees 32 minutes 00 seconds West, in and along the
northwesterly line of Huron Avenue, 1229.40 feet to the point and place of
BEGINNING.
1-1
EXCEPTING THEREOUT AND THEREFROM the property which was conveyed to the State of
New Jersey by the Deeds 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 Official 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 ▇▇▇▇▇▇ ▇▇▇▇▇, 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 ▇▇▇▇▇▇ ▇▇▇▇▇, 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
1-2
now or formerly of ▇▇▇▇▇▇ ▇▇▇▇▇, 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 feet 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 feet, the arc length of 201.61 feet 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 feet 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 feet 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 feet, the arc length of 47.26 feet 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 feet to a point which is radially distant
95.00 feet from the centerline of Absecon Boulevard (190' wide) at station
335+98.63 feet; 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 feet, the arc length of 70.33
feet 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 feet 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 feet, the arc length of 324.55 feet 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
1-3
distance of 125.00 feet 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 feet, the arc length of 245.58 feet
to a point of tangency; thence
(23) South 68 degrees 22 minutes 10 seconds East, in and along same, a distance
of 50.00 feet 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 feet 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 feet to a corner; thence
(26) Continuing in and along same, South 27 degrees 48 minutes 00 seconds West,
a distance of 89.04 feet to a corner; thence
(27) Continuing in and along same, South 54 degrees 39 minutes 00 seconds West,
a distance of 65.88 feet to a corner; thence
(28) Continuing in and along same, South 71 degrees 53 minutes 00 seconds West,
a distance of 201.55 feet to a corner; thence
(29) Continuing in and along same, South 51 degrees 29 minutes 00 seconds east,
a distance of 172.09 feet to a corner; thence
(30) Continuing in and along same, South 25 degrees 20 minutes 00 seconds east,
a distance of 216.73 feet 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 feet to a corner; thence
(32) Continuing in and along same, North 79 degrees 58 minutes 00 seconds East,
a distance of 279.10 Feet to a corner; thence
(33) Continuing in and along same, North 41 degrees 22 minutes 00 seconds east,
a distance of 266.39 feet to the point and place of BEGINNING.
BEING ALSO KNOWN AND DESIGNATED as Lot 231 in Book 201 on the Official Tax Map
of the City of Atlantic City.
1-4
(PEDESTRIAN BRIDGE)
Air rights, rights of way and easements including the right to construct,
maintain and use a Pedestrian Bridge across Huron Avenue connecting the
Casino-Hotel Parcel with the ▇▇▇▇▇▇ State Marina Site 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 feet wide), said
point being distant 956.00' eastwardly from the easterly line of Maryland Avenue
(65 feet 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 feet 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 feet; thence
(3) South 27 degrees 28 minutes 00 seconds East, crossing Huron Avenue, a
distance of 100.00 feet 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 feet 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.
1-5
SCHEDULE 2
Leased Land
THE ▇▇▇▇▇▇ STATE ▇▇▇▇▇▇ SITE
Beginning at the southeasterly corner of Maryland Avenue (68.00 feet wide
and Huron Avenue 100.00 feet 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 feet; thence
(2) North 62 degrees 32 minutes 00 seconds East, parallel with Huron
Avenue, a distance of 200.00 feet; thence
(3) South 27 degrees 28 minutes 00 seconds East, parallel with
Maryland Avenue, a distance of 1060.85 feet to a point distant
1745.00' northwardly at right angles from the northerly line of
Mediterranean Avenue (60.00 feet 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 feet; 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 feet; thence
(6) North 09 degrees 01 minutes 00 seconds East, in and along said
aforementioned Riparian Grant Line, a distance of 0.04 feet; thence
(7) North 02 degrees 18 minutes 00 seconds East, in and along said
aforementioned Riparian Grant Line, a distance of 590.00 feet;
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 feet; thence
(9) North 41 degrees 39 minutes 00 seconds East, in and along said
aforementioned Riparian Grant Line, a distance of 255.00 feet;
thence
2-1
(10) North 47 degrees 34 minutes 00 seconds East, in and along said
aforementioned Riparian Grant Line, a distance of 285.00 feet;
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
distant 1550.00 feet 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 feet; thence
(13) North 62 degrees 32 minutes 00 seconds East, parallel with
Huron Avenue, a distance of 200.00 feet to the westerly line of
Rhode Island Avenue (50.00 feet 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 feet 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 feet 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 ▇▇▇ ▇▇ ▇▇▇ ▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇ 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
2-2
the Lease referred to in a Short Form Memorandum of Lease recorded in Deed Book
5365, Page 221, and further shown on survey by ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Co. & Assoc.,
Inc., dated December 28, 1993 and bearing Job No 18488.
BEING ALSO KNOWN AND DESIGNATED as part of Lot 11 in Block B-4 as shown on the
Official Tax Map of Atlantic City, New Jersey.
2-3
SCHEDULE 3
Existing Encumbrances
1. All matters disclosed in Schedule B and D of the Pro Forma Title Insurance
Policies issued as of the date hereof by Chicago Title Insurance Company
(Numbers 31-131-107-03894 and 31-131-107-03909), First American Title Insurance
Company (Numbers 252242 and 255354) and Commonwealth Land Title Insurance
Company (Numbers L980366 and L980366A);
2. All matters disclosed in Schedule C of the Pro Forma Title Insurance Policies
issued as of the date hereof by Chicago Title Insurance Company (Numbers
31-131-107-03894 and 31-131-107-03909), First American Title Insurance Company
(Numbers 252242 and 255354) and Commonwealth Land Title Insurance Company
(Numbers L980366 and L980366A);
3. All UCC-1 Financing Statements naming Trump's Castle Associates, L.P., as
debtor, and filed prior to April 17, 1998, other than those filed in favor of
(i) Midlantic National Bank, (ii) PNC Bank, N.A., or (iii) First Bank National
Association, as Trustee, under the previously existing Senior Notes;
4. Judgment Number CV-02371-93, entered on September 18, 1997 and Judgment
Number DJ-426844-97, entered on October 20, 1997, both in favor of Amplicon,
Inc.;
5. UCC-1 Financing Statement Number 0018501, filed August 14, 1995, naming
Somerset Ice Co. Inc., as Debtor, and NatWest Bank, N.A., as Secured Party;
6. UCC-1 Financing Statement Number 0017919, filed May 19, 1995, in favor of
Madison Leasing Co., Inc., as Secured Party, and United Jersey Bank, as
Assignee;
7. UCC-1 Financing Statement Number 0017931, filed May 22, 1995, in favor of
Madison Leasing Co., Inc., as Secured Party, and NatWest, as Assignee;
8. UCC-1 Financing Statement Number 0017932 filed May 22, 1995, in favor of
Madison Leasing Co., Inc., as Secured Party, and Valley National Bank, as
Assignee;
9. UCC-1 Financing Statement Number 0017933, filed May 22, 1995, in favor of
Madison Leasing Co., Inc., as Secured Party, and Bank of New York, as Assignee;
10. Account balances due to Atlantic City Municipal Utilities Authority for the
properties through April 17, 1998.
3-1
SCHEDULE 4
FORM OF NON-DISTURBANCE
AND ATTORNMENT AGREEMENT
THIS AGREEMENT, made as of the ______ day of ________ by and between U.S.
Bank National Association (hereinafter called "Mortgagee") having an office at
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇. ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and ______________________________ a
_____________________ corporation 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 April 17, 1998 (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 Hotel & Casino, Inc. ("Funding") and Trump's Castle
Associates, L.P. (the "Partnership") which encumbers ▇▇▇▇▇ ▇▇▇▇▇▇ Hotel Casino
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 U.S. Bank National Association, as Trustee
under that certain Indenture dated as of April 17, 1998 by and between
Mortgagee, Funding and the Partnership, pursuant to an Assignment Agreement
dated as of April 17, 1998; and
WHEREAS, Tenant has entered into a certain agreement of lease dated [as
amended by agreements dated ___________________ [and amended by amendments dated
______________] 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
4-1
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
4-2
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.
4-3
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]
4-4