INDENTURE OF MORTGAGE AND SECURITY AGREEMENT
(Senior Note Mortgage)
TRUMP'S CASTLE ASSOCIATES, L.P.
Mortgagor/Debtor
and
TRUMP'S CASTLE FUNDING, INC.,
Mortgagee/Secured Party
Dated as of April 17, 1998
Record and Return to:
▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
Ropes & ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
TABLE OF CONTENTS
Page
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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......19
Section 1.4. Compliance Certificates and Opinions.......................20
Section 1.5. Effect of Headings and Table of Contents...................21
Section 1.6. Successors and Assigns & Amendments........................21
Section 1.7. Separability Clause........................................21
Section 1.8. Benefits of Mortgage.......................................21
Section 1.9. Governing Law..............................................22
Section 1.10. Limitation on Liability....................................22
Section 1.11. Provisions Required by Senior Note Indenture...............22
Section 1.12. References to Mortgagee and/or to Trustee; Rights of
Trustee................................................22
Section 1.13. Mortgage Subject to Casino Control Act.....................24
Section 1.14. Discharge of Lien..........................................24
Section 1.15. General Application........................................25
Section 1.16. Senior Note Mortgage Deemed to be Security Agreement.......25
Section 1.17. No Duplication of Notices or Payments......................25
ARTICLE TWO RELEASE; SUBORDINATION........................................26
Section 2.1. Possession by Mortgagor....................................26
Section 2.2. Obsolete Property..........................................26
Section 2.3. F,F&E Financing Agreement..................................27
ARTICLE THREE REMEDIES...................................................28
Section 3.1. Events of Default..........................................28
Section 3.2. Acceleration of Maturity; Rescision and Annulment..........29
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......................................31
Section 3.8. Waiver of Appraisement and Other Laws......................31
Section 3.9. Entry......................................................31
Section 3.10. Power of Sale; Suits for Enforcement.......................32
Section 3.11. Incidents of Sale..........................................32
Section 3.12. Receiver...................................................33
Section 3.13. Suits to Protect the Trust Estate..........................34
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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...................35
Section 5.1. Payment of Principal, Premium and Interest.................35
Section 5.2. F,F&E Financing Agreements.................................35
Section 5.3. Limitations on Liens and Transfers.........................35
Section 5.4. Environmental..............................................36
Section 5.5. Warranty of Leasehold Estate and Title.....................39
Section 5.6. After-Acquired Property; Further Assurances: Recording.....41
Section 5.7. Payment of Taxes and Certain Claims; Maintenance of
Properties; Compliance with Legal Requirement and
Insurance Requirements.................................42
Section 5.8. Permitted Contests.........................................44
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......................51
Section 5.12. Leases.....................................................53
Section 5.13. Compliance Certificates....................................54
Section 5.14. To Keep Books; Inspection by Mortgagee.....................55
Section 5.15. Advances by Mortgagee......................................55
Section 5.16. Waiver of Stay, Extension or Usury Laws....................55
Section 5.17. Eminent Domain.............................................56
Section 5.18. Facility Team..............................................57
Section 5.19. Indemnification............................................61
Section 5.20. TCHI Mortgages.............................................62
SCHEDULE 1 - OWNED LAND................................................1-1
SCHEDULE 2 - LEASED LAND...............................................2-1
SCHEDULE 3 - EXISTING ENCUMBRANCES.....................................3-1
SCHEDULE 4 - FORM OF NON-DISTURBANCE AND ATTORNMENT AGREEMENT..........4-1
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INDENTURE OF MORTGAGE AND SECURITY AGREEMENT
INDENTURE OF MORTGAGE AND SECURITY AGREEMENT ("Senior 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 ▇▇▇▇▇ ▇▇▇▇▇▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ("Mortgagor"), and TRUMP'S
CASTLE FUNDING, 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 Note, in lawful
money of the United States, to be paid in accordance with the provisions thereof
(and of all modifications, extensions, and renewals thereof), all of which
provisions are hereby made an integral part hereof as though set forth at length
herein; (ii) payment of interest (including, without limitation, interest on all
overdue principal and premium, if any) becoming due under the provisions of the
Senior Partnership Note; (iii) payment by Mortgagor to Mortgagee of all sums
expended or advanced by Mortgagee pursuant to any term or provision of this
Senior Note Mortgage; (iv) performance of each covenant, term, condition and
agreement of Mortgagor herein or in the Senior Partnership Note contained; (v)
all costs and expenses, including, without limitation, reasonable counsel fees
and expenses as provided in Section 3.7 of this Mortgage, which may arise in
respect of the Senior Partnership Note and this Senior Note Mortgage or of the
obligations secured hereby; and (vi) performance and observance of all of the
provisions herein contained, Mortgagor has executed and delivered this Senior
Note Mortgage and has bargained, sold, 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 collectively
referred to as the "Premises") and all of the estate, right, title and interest
of every
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nature whatsoever of Mortgagor in and to the same and every part thereof.
Granting Clause Fifth
All of the rights of Mortgagor as lessor under the Leases in effect
on the date of execution of this Mortgage or hereafter entered into by
Mortgagor, including modifications, extensions and renewals of all of the same,
and the immediate and continuing right as security after the occurrence, and
during the continuance, of an Event of Default, to (a) make claim for, collect,
receive and receipt for (and to apply the same as provided herein) any and all
rents, fees, charges, income, revenues, issues, profits, security and other sums
of money payable or receivable thereunder or pursuant thereto, and all proceeds
thereof, whether payable as rent, insurance proceeds, condemnation awards,
security or otherwise and whether payable prior to or subsequent to the Stated
Maturity of the Senior Partnership Note, (b) receive and give notices and
consents thereunder, (c) bring actions and proceedings thereunder or for the
enforcement thereof, (d) make waivers and agreements thereunder or with respect
thereto, (e) take such action upon the happening of a default under any Lease,
including the commencement, conduct and consummation of any proceedings at law
or in equity as shall be permitted by any provision of any Lease, and (f) do any
and all things which Mortgagor or any lessor is or may become entitled to do
under the Leases; provided that, except as may be set forth to the contrary
herein, the assignment made by this Granting Clause 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 marks, logos, copyrights, warranties and other
items of intangible personal property, and any
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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 and beverage stock, bar
supplies, laundry supplies and brochures to existing purchase
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orders;
(vi) all upholstery material, carpets and rugs, beds, bureaus,
chiffoniers, 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.
Granting Clause Seventh
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(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 any
after-acquired title, franchise or license and the reversion and reversions and
remainder and remainders thereof; and
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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 Note Mortgage upon
the Trust Estate shall rank pari passu with the lien of the Senior Guarantee
Mortgage, the lien of the TCHI Note Guarantee Mortgage, the Senior Partnership
Upstream Mortgage and the lien of any other Working Capital Facility Mortgage.
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BUT IN TRUST, NEVERTHELESS, for the ratable benefit and security of
the Holders.
UPON CONDITION that, until the happening of an Event of Default,
Mortgagor shall be permitted to possess and use the Trust Estate, and to receive
and use the rents, issues, profits, revenues and other income of the Trust
Estate.
AND IT IS HEREBY COVENANTED AND DECLARED that the Trust Estate is to
be held and applied by Mortgagee, subject to the further covenants, conditions
and trusts hereinafter set forth, and Mortgagor does hereby covenant and agree
to and with Mortgagee, for the ratable benefit of the Holders, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF
GENERAL APPLICATION
Section 1.1. Definitions.
For all purposes of this Senior Note Mortgage, except as otherwise
expressly provided or unless the context otherwise requires:
(a) the terms defined in this Article One have the meanings
assigned to them in this Article One and include the plural as well as the
singular;
(b) all accounting terms not otherwise defined herein have the
meanings assigned to them, and all computations herein provided for shall be
made, in accordance with generally accepted accounting principles in effect on
the date hereof consistently applied; and
(c) the words "herein," "hereof" and "hereunder" and other words
of similar import refer to this Mortgage as a whole and not to any particular
Article, Section or other subdivision.
"Affiliate" has the meaning set forth in Section 1.1 of the Senior
Note Indenture.
"Alterations" has the meaning set forth in Section 5.11.
"Appraised Value" means the fair market value of the Casino Hotel,
and of all other property now or hereafter owned or leased by Mortgagor and
subject to the lien of this Mortgage, as determined by an independent Appraiser
on the basis of an appraisal in conformity with the criteria set forth at 12
C.F.R. ss. 564.4 or such similar published policy or regulation as from time to
time governs real estate related transactions by institutions regulated
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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 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.
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"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 Senior 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, supplemented or restated) 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 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 Mortgagor
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
-10-
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 Senior Note Indenture.
"Full Insurable Value" means the actual replacement cost (excluding
the costs of foundation, footing, excavation, paving, landscaping and other
similar, noninsurable improvements) of the insurable properties in question.
"Holder" has the meaning set forth in Section 1.1 of the Senior Note
Indenture.
"Hotel" means that portion of the Casino Hotel not included within
the Casino.
"Impositions" has the meaning set forth in Section 5.7.
"Indebtedness" has the meaning set forth in Section 1.1 of the
Senior Note Indenture.
"Independent" when used with respect to any specified Person means
such a Person who (i) is in fact independent, (ii) does not have any direct
financial interest or any material indirect financial interest in Mortgagor or
in any other obligor upon the Senior Partnership Note or in any Affiliate of
Mortgagor or of such other obligor and (iii) is not connected with Mortgagor or
such other obligor or any Affiliate of Mortgagor or such other obligor as an
officer, employee, promoter, underwriter, trustee, partner, director or person
performing similar functions. Whenever it is herein provided that any
independent Person's opinion or certificate shall be furnished to Mortgagee,
such opinion or certificate shall state that the signer has read this definition
and that the signer is Independent within the meaning thereof. A Person who is
performing or who has performed services as an independent contractor to any
specified Person shall not be considered not Independent merely by reason of the
fact that such Person is performing or has performed such services.
"Insurance Amount" has the meaning set forth in Section 5.10(a)(i).
"Insurance Requirements" means all terms of any insurance policy
covering or applicable to the Trust Estate or any part thereof, all requirements
of the issuer of any such policy, and all orders, rules, regulations and other
requirements of the National Board of Fire Underwriters (or any other body
exercising similar functions) applicable to or affecting the Trust Estate or any
part thereof or any use or condition of the Trust Estate or any part thereof
-11-
"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 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
-12-
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 B4, 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 21 1.
"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 Mortgage and the Senior Partnership Upstream Note
Mortgage.
"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.
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"Mortgagor Order" and "Mortgagor Request" mean, respectively, a
written order or request signed with a Mortgagor Signature and delivered to
Mortgagee.
"Mortgagor Signature" means the signature of the President or a Vice
President or a general partner of Mortgagor.
"Mortgagor's Certificate" means a certificate signed with a
Mortgagor Signature and delivered to Mortgagee.
"Notices" has the meaning set forth in Section 1.2.
"Operating Assets" has the meaning set forth in Granting Clause
Sixth.
"Opinion of Counsel" means a written opinion of counsel who may
(except as otherwise expressly provided in this Mortgage) be an employee of
Mortgagor or of an Affiliate of Mortgagor.
"Original Policy" means the ALTA Loan Policies of Title Insurance
issued by First American Title Insurance Company, Chicago Title Insurance
Company and Commonwealth Land Title Insurance Company, pursuant to Title
Commitment No. L980366, dated the date hereof.
"Outstanding Amount" has the meaning set forth in Section 1.1 of the
Senior Note Indenture.
"Owned Land" has the meaning set forth in Granting Clause First.
"Permits" means all licenses, franchises, authorizations, statements
of compliance, certificates of operation, certificates of occupancy. and permits
required for the lawful ownership, occupancy, operation and use of all or a
material portion of the Premises whether held by Mortgagor or any other Person
(which may be temporary or permanent) (including, without limitation, those
required for the use of the Casino Hotel as a licensed casino facility), in
accordance with all applicable Legal Requirements.
"Permitted Encumbrances" means:
(1) liens for taxes, assessments, or governmental charges not yet
due and payable, or if due and payable not delinquent, to the extent that any
fine, penalty, interest or cost may be added for nonpayment thereof;
(2) Existing Encumbrances;
(3) F,F&E Financing Agreements permitted by the Senior Note
Indenture or the TCHI
-14-
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 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).
-15-
"Restricted Encumbrances" means any Leases permitted by and made in
accordance with Section 5.12 of this Mortgage.
"Securities Act" has the meaning set forth in Section 1.1 of the
Senior Note Indenture.
"Senior Assignment Agreement" means the Senior Assignment Agreement
of even date herewith made by Mortgagee to the Trustee and acknowledged by
Mortgagor, providing for the assignment to the Trustee of the Senior Partnership
Note and this Senior Note Mortgage.
"Senior Guarantee" means the guarantee by Mortgagor of the Company's
Indenture Obligations (as defined in the Senior Note Indenture) pursuant to
Article Fourteen of the Senior Note Indenture.
"Senior Guarantee Mortgage" means the Indenture of Mortgage and
Security Agreement of even date herewith between the Trustee, as mortgagee, and
Mortgagor, as mortgagor, securing the Senior Guarantee and evidencing a lien
pari passu with the lien of this Mortgage, the lien of the TCHI Note Guarantee
Mortgage, the lien of the Senior Partnership Upstream Note 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 Note Indenture" means that certain indenture of even date
herewith between the Mortgagee, as issuer, the Mortgagor, as guarantor and the
Trustee, as trustee, relating to the Senior Notes as it may from time to time be
supplemented, modified or amended by one or more trust indentures or other
instruments supplemental thereto entered into pursuant to the applicable
provisions thereof.
"Senior Note Mortgage" means this Indenture of Mortgage and Security
Agreement, which evidences a lien pari passu with the lien of the Senior
Guarantee Mortgage, the lien of TCHI Note Guarantee Mortgage, the Senior
Partnership Upstream Note 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 Mortgagee 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 Mortgagee, a copy of which is attached to the Senior
Note Indenture, and any amendments, extensions, renewals, replacements or
restatements thereof.
-16-
"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 the 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 certain Indenture
of Mortgage and Security Agreement, dated of even date herewith, among the
Mortgagor, as mortgagor/debtor, and TCHI, as mortgagee/secured party, securing
the Senior Partnership Upstream Note and which evidences a lien pari passu with
the lien of this Mortgage. 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.
"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.
"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 Mortgages" means the TCHI Guarantee Mortgage and the Senior
Partnership Upstream Note Mortgage.
"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
-17-
TCHI, as issuer, Mortgagor as guarantor and U.S. Bank National Association, 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 U.S. Bank National Association,
as trustee, as mortgagee, and Mortgagor, as mortgagor, securing the TCHI
Guarantee and evidencing a lien pari passu with the lien of this Mortgage, the
lien of the Senior Guarantee Mortgage, the lien of the Senior Partnership
Upstream Note 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 Senior Note Indenture and any successor thereto.
"Uniform Commercial Code" means the New Jersey Uniform Commercial
Code N.J.S.A. 12A:1-101, et seq.
"Working Capital Facility" has the meaning set forth in Section 1.1
of the Senior Note Indenture.
"Working Capital Facility Mortgage" means any mortgage or other
security interest (including, without limitation, the TCHI Note Guarantee
Mortgage and the 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 Note Mortgage, the lien of the Senior Guarantee
Mortgage, the lien of the TCHI Note Guarantee Mortgage and the lien of the
Senior Partnership Upstream Note Mortgage.
Section 1.2. Notices.
(a) Any request, demand, authorization, direction, notice
(including, without limitation, a notice of default), consent, waiver or other
document provided or permitted by this Mortgage to be made upon, given or
furnished to, or filed with, Mortgagor, Mortgagee or the Trustee (collectively,
"Notices") shall be in writing and shall be deemed given either (i) when
delivered by hand (including by overnight courier) or (ii) two days after
sending by registered or certified mail, postage prepaid, addressed as follows:
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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.
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.
-19-
Section 1.3. Form and Contents of Documents Delivered to Mortgagee.
Whenever several matters are required to be certified by, or covered
by an opinion of, any specified Person, it is not necessary that all such
matters be certified by, or covered by the opinion of, only one such Person, or
that they be so certified or covered by only one document, but one such Person
may certify or give an opinion with respect to some matters and one or more
other such Persons as to other such matters in one or several documents.
Any certificate or opinion of a general partner of Mortgagor may be
based, insofar as it relates to legal matters, upon a certificate or opinion of,
or representations by, counsel, unless such general partner knows that the
certificate or opinion or representations with respect to the matters upon which
his certificate or opinion is based are erroneous. Any Opinion of Counsel may be
based, insofar as it relates to factual matters, upon a certificate or opinion
of, or representations by, a general partner of Mortgagor stating that the
information with respect to such factual matters is in the possession of
Mortgagor, unless such counsel knows that the certificate or opinion or
representations with respect to such matters are erroneous. If appropriate to
the matter being opined upon and to the extent not prohibited by the Trust
Indenture Act, conclusions stated in any Opinion of Counsel may be subject to
rights of creditors and the availability of equitable remedies.
Whenever any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Mortgage, they may, but need not, be consolidated to form
one instrument.
Whenever in this Mortgage, in connection with any application or
certificate or report to Mortgagee, it is provided that Mortgagor shall deliver
any document as a condition of the granting of such application, or as evidence
of Mortgagor's compliance with any term hereof, it is intended that the truth
and accuracy, at the time of the granting of such application or at the
effective date of such certificate or report (as the case may be), of the facts
and opinions stated in such document shall in such case be conditions precedent
to the right of Mortgagor to have such application granted or to the sufficiency
of such certificate or report.
Every application, certificate, report, affidavit, opinion, consent,
statement or other instrument required to be delivered to Mortgagee under this
Senior Note Mortgage shall be in writing and shall be prepared and delivered
without cost or expense to Mortgagee.
Section 1.4. Compliance Certificates and Opinions.
Upon any application or request by Mortgagor to Mortgagee to take
any action under any provision of this Senior Note Mortgage, Mortgagor shall
furnish to Mortgagee a Mortgagor's Certificate stating that all conditions
precedent, if any, provided for in this Senior Note Mortgage relating to the
proposed action have been complied with and an Opinion of Counsel stating that
in the opinion of such counsel all such conditions precedent, if any, have
-20-
been complied with, except that in the case of any such application or request
as to which the furnishing of such documents is specifically required by any
provision of this Senior Note Mortgage relating to such particular application
or request, no additional certificate or opinion need be furnished. Every
certificate or opinion with respect to compliance with a condition or covenant
provided for in this Senior Note Mortgage shall include:
(a) a statement that each individual signing such certificate or
opinion has read such condition or covenant and the definitions herein relating
thereto;
(b) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(c) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable him to express
an informed opinion as to whether or not such condition or covenant has been
complied with; and
(d) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 1.5. Effect of Headings and Table of Contents.
The Article and Section headings herein and in the Table of Contents
are for convenience only and shall not affect the construction hereof.
Section 1.6. Successors and Assigns & Amendments.
(a) Subject to the provisions of Sections 1.10 and 4.2 hereof and
Sections 3.11 and 8.2 of the Senior Note Indenture, and without limiting the
generality of Section 1.12 hereof, this Mortgage shall be binding upon and inure
to the benefit of the parties hereto and of the respective successors and
assigns of the parties hereto to the same effect as if each such successor or
assign were in each case named as a party to this Mortgage.
(b) This Senior Note Mortgage may not be modified, amended,
discharged, released nor any of its provisions waived except by agreement in
writing executed by Mortgagor and Mortgagee and in accordance with the
provisions of this Mortgage and the Senior Note Indenture.
Section 1.7. Separability Clause.
In case any provision in this Mortgage or the Senior Partnership
Note shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
-21-
Section 1.8. Benefits of Mortgage.
Without limiting the generality of Section 3.12, nothing in this
Mortgage or in the Senior Partnership Note, express or implied, shall give to
any Person, other than the parties hereto and their successors and assigns, any
benefit or any legal or equitable right, remedy or claim under this Mortgage.
Section 1.9. Governing Law.
This Senior 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 Note Mortgage, or any other agreement,
document, certificate, instrument or statement (oral or written) related to,
executed or to be executed, delivered or to be delivered, or made or to be made,
or any omission made or to be made, in connection with any of the foregoing or
any of the transactions contemplated in any such agreement, document,
certificate, instrument, or statement. Any agreement, document, certificate,
statement or other instrument to be executed simultaneously with, in connection
with, arising out of or relating to this Senior 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 mutandis to this Section 1.10 and, if such
language is omitted, shall be deemed to contain such language.
Section 1.11. Provisions Required by Senior Note Indenture.
Whenever the provisions of this Senior Note Mortgage and the
provisions of the Senior Note Indenture shall be inconsistent, the provisions of
the Senior Note Indenture shall govern.
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Section 1.12. References to Mortgagee and/or to Trustee; Rights of Trustee.
(a) Whenever reference is made in this Mortgage to the rights,
powers and remedies of Mortgagee or to Notices to or by Mortgagee, the same
shall apply to Trump's Castle Funding, Inc. only so long as Trump's Castle
Funding, Inc. is the holder of this Mortgage and the Senior Partnership Note.
Subsequent to the assignment thereof on the date of and pursuant to the Senior
Assignment Agreement by Trump's Castle Funding, Inc. to the Trustee (who shall
have and hold all such rights, powers and remedies on behalf of the Holders in
accordance with the terms of the Senior Note Indenture) and for so long as there
shall not have been effected a cancellation and discharge of the assignment
pursuant to Article V of the Senior Assignment Agreement, such rights, powers
and remedies of Mortgagee and any Notices to or by Mortgagee, shall apply only
to the Trustee with the same force and effect as if (i) such rights, powers and
remedies were specifically granted by this Senior Note Mortgage and the Senior
Partnership Note directly to the Trustee and (ii) the Trustee were the named
Mortgagee with respect to the giving and receiving of Notices under Section 1.2.
Upon such assignment of this Senior Note Mortgage, the Trustee shall be named in
lieu of Trump's Castle Funding, Inc., as a named insured under the policies of
insurance set forth in Section 5.10 hereof (except that with respect to the
policy described in Section 5.10(a)(iii) of this Mortgage, Trump's Castle
Funding, Inc. may, at Mortgagor's election, be named as an additional insured).
(b) So long as there shall not have been effected a cancellation
and discharge of the assignment pursuant to Article V of the Senior Assignment
Agreement, except as otherwise provided in Section 6.2 of the Senior Note
Indenture:
(1) Mortgagee may rely, and shall be protected in acting or
refraining from acting, upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed or presented
by the proper party or parties;
(2) any request or direction of Mortgagor mentioned herein
shall be sufficiently evidenced by a Mortgagor Request or Mortgagor Order;
(3) whenever in the administration of this Mortgage, Mortgagee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, Mortgagee (unless
other evidence be herein specifically prescribed) may, in the absence of
bad faith on its part, rely upon a Mortgagor's Certificate;
(4) Mortgagee may consult with counsel and any written advice
of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by Mortgagee hereunder in good faith and in reliance thereon;
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(5) Mortgagee shall be under no obligation to exercise any of
the rights or powers vested in it by this Mortgage at the request or
direction of any of the Holders pursuant to the Senior Note Indenture,
unless such Holders shall have offered to Mortgagee reasonable security or
indemnity against the costs, expenses and liabilities which might be
incurred therein or thereby in compliance with such request or direction;
(6) Mortgagee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, approval, appraisal, bond, debenture, note, coupon,
security or other paper or document but Mortgagee, in its discretion, may
make such further inquiry or investigation into such facts or matters as
it may see fit, and, if Mortgagee shall determine to make such further
inquiry or investigation, it shall be entitled (subject to the express
limitations with respect thereto contained in this Senior Note Mortgage)
to examine the books, records and premises of Mortgagor, personally or by
agent or attorney;
(7) Mortgagee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys, and Mortgagee shall not be responsible for any
misconduct or negligence on the part of any agent or attorney appointed
with due care by it hereunder;
(8) Mortgagee shall not be personally liable, in case of entry
by it upon the Trust Estate, for debts contracted or liabilities or
damages incurred in the management or operation of the Trust Estate;
(9) Mortgagor shall pay or cause to be paid to the Trustee all
compensation and other amounts provided in Section 6.6 of the Senior Note
Indenture; and
(10) no provision of this Mortgage shall require Mortgagee to
expend or risk its own funds or otherwise incur any financial liability in
the performance of its obligations hereunder, or in the exercise of any of
its rights or powers.
(c) The provisions of Section 1.12(a) shall apply to all Mortgage
Documents executed in favor of Trump's Castle Funding, Inc. The provisions of
Section 1.12(b) shall apply to all Mortgage Documents.
Section 1.13. Mortgage Subject to Casino Control Act.
Each provision of this Senior Note Mortgage is subject to and shall
be enforced in compliance with the provisions of the New Jersey Casino Control
Act.
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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 Note and the conditions
precedent for the Senior Note Indenture to cease, determine and become null and
void (except for any surviving rights of transfer or exchange of the Senior
Notes provided in Section 13.1 of the Senior Note Indenture and for the
obligation to pay the Trustee's fees and expenses provided in Section 6.6 of the
Senior Note Indenture) in accordance with Section 13.1 of the Senior Note
Indenture shall have occurred, or (b) there shall have occurred a "defeasance"
(as defined in Section 4.2 of the Senior Note Indenture) of the Senior Notes, or
(c) there shall have occurred a "covenant defeasance" (as defined in Section 4.3
of the 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.
(c) For the purposes of this Senior Note Mortgage, it is
understood that an event which does not materially diminish the value of
Mortgagee's interest in the Trust Estate shall not be deemed an "impairment of
security," as that phrase is used in this Mortgage.
Section 1.16. Senior Note Mortgage Deemed to be Security Agreement.
To the extent that the grant of a security interest in any portion
of the Trust Estate is governed by the Uniform Commercial Code, this Senior Note
Mortgage is hereby deemed to be as well a security agreement under the Uniform
Commercial Code for the purpose of creating hereby a security interest in all of
Mortgagor's right, tide 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 Note Mortgage and the Senior
Guarantee
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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 Note Mortgage, and the Senior Guarantee Mortgage, provided that such
notice, document or payment states, or is accompanied by a letter stating, that
such notice, document or payment is being delivered in satisfaction of the
terms, conditions and provisions of both this Mortgage and the Senior Guarantee
Mortgage.
ARTICLE TWO
RELEASE; SUBORDINATION
Section 2.1. Possession by Mortgagor.
So long as there shall have been no acceleration of maturity of the
Senior Partnership Note under Section 3.2, Mortgagor shall be suffered and
permitted, with power freely and without let or hindrance on the part of
Mortgagee, subject to the provisions of this Mortgage and the Senior Note
Indenture, to possess, use, manage, operate and enjoy the Trust Estate and every
part thereof and to collect, receive, use, invest and dispose of the rents,
issues, tolls, profits, revenues and other income from the Trust Estate or any
part thereof, to use, consume and dispose of any consumables, goods, wares and
merchandise in the ordinary course of business of operating the Casino Hotel and
to adjust and settle all matters relating to choses in action, leases and
contracts.
Section 2.2. Obsolete Property.
Mortgagor shall have the right, at any time and from time to time,
unless an Event of Default shall have occurred and be continuing, without any
release from or consent by Mortgagee:
(a) to sell or dispose of, free from the lien of this Mortgage,
any Tangible Personal Property which, in its reasonable opinion, may have become
obsolete or unfit for use or which is no longer necessary in the conduct of its
businesses or the operation of the Trust Estate, and no purchaser of any such
property shall be bound to inquire into any question affecting Mortgagor's right
to sell or otherwise dispose of the same free from the lien of this Mortgage;
(b) to alter, repair, replace, change the location or position of
and add to any Tangible Personal Property; provided, however, that no change
shall be made in the location of any such 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
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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 Agreement.
Notwithstanding any provision contained in this Mortgage or the
Senior Note Venture to the contrary, if Mortgagor acquires Tangible Personal
Property and/or other items constituting operating assets subject to any F,F&E
Financing Agreement, or becomes the lessee under a lease for any of the same and
if the document evidencing such F,F&E Financing Agreement prohibits subordinate
liens or the provisions of any such lease prohibits any assignment thereof by
the lessee, and if any such prohibition is customary with respect to similar
transactions of the lender or lessor (as evidenced by a Mortgagor's Certificate
delivered to Mortgagee, together with such other evidence as Mortgagee may
reasonably request), as the case may be, then the property so purchased or the
lessee's interest in the lease, as the case may be, shall be deemed to be
Excepted Property. If any such F,F&E Financing Agreement permits subordinate
liens, then Mortgagee shall execute and deliver to Mortgagor, at Mortgagor's
expense, such documents as the holder of such F,F&E Financing Agreement may
reasonably request to evidence the subordination of the lien of this Mortgage
and the Mortgage Documents to the lien of such F,F&E Financing Agreement;
provided, however, that Mortgagee shall have no obligation to execute and
deliver such documents, and the lien of this Mortgage shall not be subordinate
to any such F,F&E Financing Agreement, unless (a) such F,F&E Financing Agreement
shall contain a provision binding upon the holder of such F,F&E Financing
Agreement that (i) if the holder of such F,F&E Financing Agreement shall give to
Mortgagor any notice of default thereunder, such holder shall at the same time
and in the 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
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Mortgagor shall be deemed to have been duly given unless and until a copy
thereof has been so provided to Mortgagee, and (ii) promptly following the last
date upon which Mortgagor may cure such default, if Mortgagor shall fail to cure
such default, the holder of such F,F&E Financing Agreement shall give notice to
Mortgagee stating the manner in which Mortgagor shall have failed to cure its
said default, in which event Mortgagee shall be permitted to cure the default
and, with respect thereto, Mortgagee shall have the same amount of time, after
such notice, within which to cure the said default, as is provided for under the
provisions of such F,F&E Financing Agreement to be given to Mortgagor therefor
after notice or (b) Mortgagor delivers to Mortgagee a Mortgagor's Certificate
certifying that (i) the provision described in clause (a) is not customarily
included by the lender or lessor in its F,F&E Financing Agreements in similar
transactions and (ii) although Mortgagor has used reasonable efforts to have
included in such F,F&E Financing Agreement such a provision, Mortgagor has been
unsuccessful in obtaining such a provision.
ARTICLE THREE
REMEDIES
Section 3.1. Events of Default.
"Event of Default," whenever used herein, means any one of the
following events (including any applicable notice requirement and any period of
grace, as specified in this Section 3.1) (whatever the reason for such event and
whether it shall be voluntary or involuntary or be effected by operation of law
or pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body):
(a) default in the payment of any interest on the Senior Notes or
the Senior Partnership Note when such interest becomes due and payable and
continuance of such default for a period of 30 days; or
(b) default in the payment of all or any portion of the principal of
(or premium, if any, on) the Senior Notes or the Senior Partnership 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 Note or this Senior Note Mortgage, and the continuance of such
default for a period of 30 days after there has been given to Mortgagor a notice
specifying such default and requiring it to be remedied and stating that such
notice is a "Notice of Default" hereunder; or
(d) default in the payment or performance of any obligation under
the Senior Guarantee at the time such payment or performance is required under
Article Fourteen of the Senior Note Indenture.
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(e) default in the performance, or breach, of any covenant of
Mortgagor in this Senior Note Mortgage (other than a covenant, a default in the
performance or breach of which is elsewhere in this Section 3.1 specifically
dealt with), and continuance of such default or breach for a period of 30 days
after there has been given to Mortgagor a notice specifying such default or
breach and requiring it to be remedied and stating that such notice is a "Notice
of Default" hereunder, unless (i) the default or breach is of such a nature that
is curable but not susceptible of being cured with due diligence within such
30-day period (for reasons other than the lack of funds), (ii) Mortgagor
delivers 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 Senior
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
(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 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; or
(j) an "Event of Default," as defined in Section 3.1 of the Senior
Guarantee Mortgage, the TCHI Note Guarantee Mortgage, the Senior Partnership
Upstream Note 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; Rescision and Annulment.
If an Event of Default (other than an Event of Default specified in
Section 5.1(g) or (h) of the Senior Note Indenture) occurs and is continuing,
then, and in every such case,
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Mortgagee may declare the Outstanding Amount of the Senior Partnership Note to
be due and payable immediately, by a notice in writing to Mortgagor and upon any
such declaration such principal shall become immediately due and payable. If an
Event of Default specified in such Section 5.1(g) or (h) occurs, the Outstanding
Amount of the Senior Partnership Note shall ipso facto become due and payable
without any declaration or other act on the part of the Mortgagee.
If at any time after such declaration of acceleration has been made,
but before any judgment or decree for payment of money due on the Senior
Partnership Note has been obtained by the Mortgagee, such declaration of
acceleration and its consequences has been duly rescinded and annulled in
accordance with Section 5.2 of the Senior Note Indenture, then the declaration
of acceleration pursuant to this Section 3.2 shall automatically be rescinded
and annulled.
No such rescission and annulment shall affect any subsequent default
or impair any right consequent thereon.
Section 3.3. Application of Moneys Received by Mortgagee.
Any moneys received by Mortgagee pursuant to the provisions of this
Article Three (including moneys received by the Trustee after any action or act
by Mortgagee under Section 3.10) shall be applied by Mortgagee in accordance
with the provisions of Section 5.6 of the Senior Note Indenture.
Section 3.4. Restoration of Rights and Remedies.
If Mortgagee has instituted any proceeding to enforce any right or
remedy under this Senior Note Mortgage and such proceeding has been discontinued
or abandoned for any reason or has been determined adversely to Mortgagee, then
and in every such case Mortgagor and Mortgagee shall, subject to any
determination in such proceeding, be restored to their respective former
positions hereunder, and thereafter all rights and 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, in 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 hen
under, or otherwise, shall not prevent the concurrent assertion or employment of
any other appropriate right or remedy.
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Section 3.6. Delay or Omission Not Waiver.
No delay or omission of Mortgagee to exercise any right or remedy
accruing upon an Event of Default shall impair any such right or remedy or
constitute a waiver of any such Event of Default or an acquiescence therein.
Every right and remedy given by this Article Three or by applicable law to
Mortgagee may be exercised, from time to time, and as often as may be deemed
expedient, by Mortgagee.
Section 3.7. Undertaking for Costs.
If any action or proceeding shall be commenced (including, without
limitation, an action to foreclose this Mortgage or to collect the indebtedness
secured hereby) to which action or proceeding Mortgagee is made or becomes a
party, or in which it becomes necessary in the opinion of Mortgagee to defend or
uphold the lien of this Senior Note Mortgage, Mortgagor shall pay to Mortgagee
all expenses, including, without limitation, reasonable attorneys' fees,
disbursements and court costs incurred by Mortgagee in connection therewith,
together with interest at the rate then payable on the Senior Partnership Note,
from the date of payment less the net amount received by Mortgagee or the
Trustee, as their interests may appear under any title insurance policy, and,
until paid, all such expenses, together with interest as aforesaid, shall be
secured by the lien of this Mortgage.
Section 3.8. Waiver of Appraisement and Other Laws.
To the full extent that it may lawfully so agree, Mortgagor will not
at any time insist upon, plead, claim or take the benefit or advantage of, any
appraisement, valuation, stay, extension or redemption law now or hereafter in
force, in order to prevent or hinder the enforcement of this Mortgage or the
absolute sale of the Trust Estate, or any part thereof, or the possession
thereof by any purchaser at any sale under this Article Three; and Mortgagor,
for itself and all who may claim 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
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Default, Mortgagor, upon demand of Mortgagee, shall forthwith surrender to
Mortgagee the actual possession of, and it shall be lawful for Mortgagee by such
officers or agents as it may appoint to enter and take possession of, the Trust
Estate (and the books and papers of Mortgagor), and to hold, operate and manage
the Trust Estate (including the making of all needful repairs, and such
alterations, additions and improvements as Mortgagee shall deem wise) and to
receive the rents, issues, tolls, profits, revenues and other income thereof,
and, after deducting the costs and expenses of entering, taking possession,
holding, operating and managing the Trust Estate, as well as payments for taxes,
insurance and other proper charges upon the Trust Estate and reasonable
compensation to itself, its agents and counsel, to apply the same as provided in
Section 3.3; provided, however, that Mortgagee's rights under this Section 3.9
shall be subject to the provisions of the New Jersey Casino Control Act and
Section 3.14. Whenever all that is then due upon the Senior Partnership Note and
under any of the terms of this Mortgage shall have been paid and all defaults
hereunder shall have been cured, Mortgagee shall surrender possession to
Mortgagor.
Section 3.10. Power of Sale; Suits for Enforcement.
If an Event of Default shall occur and be continuing, Mortgagee,
with or without entry, in its discretion, may:
(a) sell, subject to any mandatory requirements of applicable law,
the Trust Estate as an entirety, or in such parcels, as Mortgagee may determine,
to the highest bidder at public auction at such place and at such time (which
sale may be adjourned by Mortgagee from time to time in its discretion by
announcement at the time and place fixed for such sale, without further notice)
and upon such terms as Mortgagee may fix and briefly specify in a notice of sale
to be published as required by law; or
(b) proceed to protect and enforce its rights under this Mortgage
by sale pursuant to judicial proceedings or by a suit, action or proceeding in
equity or at law or otherwise, whether for the specific performance of any
covenant or agreement contained in this Mortgage or in aid of the execution of
any power granted in this Mortgage or for the foreclosure of this Mortgage or
for the enforcement of any other legal, equitable or other remedy, as Mortgagee
shall deem most effectual to protect and enforce any of the rights of Mortgagee;
the failure to join tenants shall not be asserted as a defense to any
foreclosure or proceeding to enforce the rights of Mortgagee.
Section 3.11. Incidents of Sale.
Upon any sale of any of the Trust Estate, whether made under the
power of sale hereby given or pursuant to judicial proceedings, to the extent
permitted by law:
(a) the principal of and accrued interest on the Senior
Partnership Note, if not previously due, shall at once become and be immediately
due and payable;
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(b) subject to the provisions of Section 3.14 and the receipt of
any required prior approvals of the New Jersey Casino Control Commission,
Mortgagee may bid for and purchase the property offered for sale, and upon
compliance with the terms of sale may hold, retain, possess and dispose of such
property, without further accountability, and may, in paying the purchase money
therefor, deliver the Senior Partnership Note or claims for interest thereon in
lieu of cash to the amount which shall, upon distribution of the net proceeds of
such sale, be payable thereon, and the Senior Partnership Note, in case the
amounts so payable thereon shall be less than the amount due thereon, shall be
returned to Mortgagee after being appropriately stamped to show partial payment;
(c) Mortgagee may make and deliver to the purchaser or purchasers
a good and sufficient deed, ▇▇▇▇ 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;
(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 Note
or the solvency of Mortgagor, to the appointment of a receiver of
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the Trust Estate, and of the rents, issues, profits, revenues and other income
thereof; provided, however, that Mortgagee's rights under this Section 3.12
shall be subject to the provisions of the New Jersey Casino Control Act and
Section 3.14 hereof.
Section 3.13. Suits to Protect the Trust Estate.
Mortgagor hereby acknowledges the right of Mortgagee, in the name
and on behalf of Mortgagor, (a) to appear in and defend any action or proceeding
brought with respect to the Trust Estate or any part thereof and (b) upon 5
days' prior notice to Mortgagor (or such shorter period or without notice if
deemed necessary and appropriate by Mortgagee), to institute and to maintain
such proceedings as Mortgagee may deem necessary and appropriate, but in the
case of (a) and (b) only to prevent any impairment of security or any impairment
of the Trust Estate by any acts which may be unlawful or in violation of this
Mortgage and to protect Mortgagee's interests in the Trust Estate and in the
rents, issues, profits, revenues and other income arising therefrom, including
the right to institute and maintain proceedings to restrain the enforcement of
or compliance with any governmental enactment, rule or order that may be
unconstitutional or otherwise invalid, if the enforcement of or compliance with
such enactment, rule or order would impair the security hereunder or be
materially prejudicial to the interests of Mortgagee.
Section 3.14. Management of the Premises.
Without limiting the generality of any other provision of this
Article Three, following an Event of Default and the taking of possession of the
Trust Estate or any part thereof by Mortgagee and/or the appointment of a
receiver of the Trust Estate or any part thereof, Mortgagee or any such receiver
shall be authorized, in addition to the rights and powers of Mortgagee and such
receiver set forth elsewhere in this Mortgage, to take any action permitted
under Section 5.17 of the Senior Note Indenture.
ARTICLE FOUR
CONSOLIDATION, MERGER, CONVEYANCE,
TRANSFER OR LEASE
Section 4.1. Consolidation, Merger, Conveyance or Transfer only on Certain
Terms.
Mortgagor shall comply with all provisions applicable to Mortgagor
in Article Eight of the Senior Note Indenture.
Section 4.2. Successor Entity Substituted.
Upon any consolidation or merger, or any sale, assignment,
conveyance, transfer or
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disposition of the Trust Estate or any portion thereof in accordance with
Section 8.1 of the Senior Note Indenture (other than a lease), the successor
Person formed by such consolidation or into which Mortgagor is merged or the
successor Person to which such sale, assignment, conveyance, transfer or
disposition is made shall succeed to, and be substituted for, and may exercise
every right and power of Mortgagor under this Mortgage with the same effect as
if such successor had been named as Mortgagor herein; and thereafter, except in
the case of a lease, the Person named as "Mortgagor" in the first paragraph of
this instrument or any successor Person which shall theretofore have become such
in the manner prescribed in this Article shall be discharged from all
obligations and covenants under this Mortgage.
ARTICLE FIVE V.
COVENANTS AND REPRESENTATIONS OF MORTGAGOR
Section 5.1. Payment of Principal, Premium and Interest.
Mortgagor shall duly and punctually pay the principal of (and
premium, if any) and interest on the Senior Partnership Note in accordance with
the terms of the Senior Partnership Note and this Mortgage.
Section 5.2. F,F&E Financing Agreements.
Mortgagor shall comply with all of the terms and conditions set
forth in any F,F&E Financing Agreements before the expiration of any applicable
notice and cure periods contained in the F,F&E Financing Agreements.
Section 5.3. Limitations on Liens and Transfers.
(a) Mortgagor shall not create, incur, suffer or permit to be
created or incurred or to exist any mortgage, lien, charge or encumbrance on or
pledge of any of the Trust Estate, other than (i) Permitted Encumbrances, (ii) a
notice of intention filed by a mechanic, materialman or laborer under the New
Jersey mechanic's lien law, and (iii) a building contract filed by a contractor
or subcontractor under the New Jersey mechanic's lien law. Without limiting the
generality of the foregoing sentence but notwithstanding the provisions of the
foregoing sentence, Mortgagor shall not be deemed to have breached the
provisions of the foregoing sentence by virtue of the existence of a lien for
Impositions or mechanics' liens so long as Mortgagor is in good faith contesting
the validity of the same in accordance with the provisions of Section 5.8.
(b) The lien of this Senior 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 Working Capital Facility
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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 Note Mortgage over the
lien of any such Permitted Encumbrances.
(c) Except as otherwise expressly permitted under this Mortgage
and the Senior Note Indenture (including, without limitation, Article Eight of
the Senior Note Indenture), Mortgagor shall not sell, assign, lease or otherwise
transfer all or any portion of the Trust Estate or any interest therein.
Notwithstanding the foregoing, Mortgagor shall have the right, at any time and
from time to time, unless an Event of Default shall have occurred and be
continuing, without any release from or consent by Mortgagee, to grant interests
in the Owned Land in the nature of rights-of-way or easements, or other rights
or privileges in the nature of easements; provided, (i) that none of the same
will reduce or impair, in any material respect, (A) the value or usefulness of
the Trust Estate or any part thereof or (B) the normal operation of the Casino
Hotel in accordance with all Legal Requirements and all Permits, (ii) Mortgagor
has delivered to Mortgagee a Mortgagor's Certificate, dated not earlier than 10
days prior to the date of each such grant, certifying that (A) no Event of
Default has occurred and is continuing and (B) the conditions set forth in this
Section 5.3(c) for such grant have been fulfilled and (iii) Mortgagor has
delivered to Mortgagee a duplicate original of the instrument, if any, pursuant
to which such grant is to be made, and such other instruments, certificates and
opinions as Mortgagee may reasonably request. The foregoing provisions of this
Section 5.3(c) shall be self-operative and no further instrument shall be
required to evidence the consent of Mortgagee to the grant or other conveyance
of such rights-of-way or easements. Mortgagee shall, however, from time to time,
after receipt of a Mortgagor's 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
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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.llb(l). Mortgagor will not use the Premises in
the future as a "Major Facility".
(d) To the best of Mortgagor's knowledge, after due inquiry and
investigation, no lien has been attached to any revenues or any real or personal
property owned by Mortgagor or the Premises, as a result of the Chief Executive
of the New Jersey Spill Compensation Fund expending monies from said fund to pay
for "Cleanup Costs", as such term is defined in N.J.S.A. 58:10-23.11b(d),
arising from an intentional or unintentional action or omission of Mortgagor or
any previous owner and/or operator of such real property.
(e) There is no asbestos or asbestos containing material on the
Premises. To the best of Mortgagor's knowledge, there are no underground storage
tanks located at the Premises, other than those tanks previously disclosed to
Mortgagee and which are maintained in accordance with all material Legal
Requirements. Mortgagor has not installed or placed, or permitted to be
installed or placed, any underground storage tanks at or on the Premises, other
than those tanks previously disclosed to Mortgagee and which are maintained in
accordance with all material Legal Requirements. Underground storage tanks shall
have the definition as set forth in N.J.S.A. 58:10A-22(p).
(f) Mortgagor has not received a summons, citation, directive,
letter, other written communication, or, to the best of its knowledge, any oral
communication, from the New Jersey Department of Environmental Protection and
Energy or from any other person, firm or corporation concerning any intentional
or unintentional action or omission on Mortgagor's part resulting in the
releasing, spilling, leaking, pumping, pouring, emitting, emptying or dumping of
"Hazardous Substances", as such term is defined in N.J.S.A. 58:10-23.11b(k),
into the
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waters or onto the lands of the State of New Jersey, or into the waters outside
the jurisdiction of the State of New Jersey, in either case resulting in damage
to the lands, waters, fish, shellfish, wildlife, biota, air and other resources
owned, managed. held in trust or otherwise controlled by the State of New
Jersey.
(g) In connection with any purchase of the Premises or any business
or assets located thereon or any "closing, terminating or transferring
operations" of any "industrial establishment", as that term is defined in ISRA,
occurring on or after December 31, 1983, Mortgagor required that the owner and
or operator of the industrial establishment comply with the provisions of ECRA
and the owner and or operator did comply therewith.
(h) Upon the occurrence of an Event (as hereinafter defined),
Mortgagee shall have the right to have its consultants perform a comprehensive
environmental audit of the Premises. Such audit shall be conducted by an
environmental consultant chosen by Mortgagee and may include a visual survey, a
record review, an area reconnaissance assessing the presence of hazardous or
toxic waste or substances, PCBs or storage tanks at the Premises, an asbestos
survey of the Premises, which may include random sampling of the improvements
and air quality testing, and such further site assessments as Mortgagee may
reasonably require due to the results obtained from the foregoing. Mortgagor
grants Mortgagee, its agents, consultants and contractors the right to enter the
Premises for the purposes of performing such studies and the cost of such
studies shall be due and payable by Mortgagor to Mortgagee upon demand and shall
be secured by the lien of this Mortgage. Mortgagee shall direct the
environmental consultant to use its best efforts not to hinder Mortgagor's or
any tenant's operations when conducting such audit, sampling or inspections. For
purposes of this paragraph, the term "Event" shall mean (i) the occurrence of
any Event of Default, (ii) the issuance of any summons, citation, directive or
similar written notice from the New Jersey Department of Environmental
Protection and Energy or from any other local, state or federal entity or from
any other person, firm or corporation concerning any alleged material violation
of any and all federal, state and local environmental legislation, rules and
regulations in effect as of the date of this Mortgage and subsequent thereto or
(iii) the initiation of any legal action, suits or other legal or administrative
proceedings relating to or in connection with any alleged violation of any and
all federal, state and local environmental legislation, rules and regulations in
effect as of the date of this Mortgage and subsequent thereto.
(i) If a lien shall be filed against the Premises by the New Jersey
Department of Environmental Protection and Energy, 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
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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 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;
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(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 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 pari passu
liens of the Senior Guarantee Mortgage, the TCHI Note Guarantee Mortgage and the
Senior Partnership Upstream Note 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
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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 Note Mortgage.
Mortgagor shall, as provided in Section 5.12, from time to time
subject to the lien of this Senior Note Mortgage its right, title and interest
under all Leases.
Mortgagor shall use reasonable efforts to insure that all Operating
Assets (other than Excepted Property) or any interest therein hereafter acquired
by Mortgagor shall be assignable to Mortgagee, and to the extent such assignment
to Mortgagee requires the consent of any governmental authority or any other
Person, Mortgagor shall use reasonable efforts to obtain such consent or a
waiver thereof.
Mortgagor shall cause this instrument and all other instruments of
further assurance, including all financing statements and continuation
statements covering security interests in personal property, to be promptly
recorded, registered and filed, and at all times to be kept recorded, registered
and filed, and shall execute and file such financing statements and cause to be
issued and filed such continuation statements, all in such manner and in such
places as may be required by law or as requested by Mortgagee to fully preserve
and protect the rights of Mortgagee as a secured party under the Uniform
Commercial Code to all property comprising the Trust Estate (to the extent a
grant of a security interest therein is governed by the Uniform Commercial Code)
and to perfect, preserve and protect the lien of this Senior Note Mortgage as a
valid direct first mortgage lien of record and a valid first priority security
interest on the Trust Estate, subject only to Permitted Encumbrances.
Mortgagor shall pay all filing or recording fees, and all expenses
incident to the execution and delivery of this Mortgage, any financing statement
or continuation statement with respect to the personal property constituting
part of the Trust Estate, and any instrument of further assurance, and all
federal, state, county and municipal stamp taxes and other taxes, duties,
imposts, assessments and charges arising out of or in connection with the
execution and delivery of the Senior Partnership Note, this Senior Note
Mortgage, any financing statement or
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continuation statement with respect to the personal property constituting part
of the Trust Estate or any instrument of further assurance.
Mortgagor shall furnish to Mortgagee promptly after the acquisition
hereafter by Mortgagor of any fee interest or leasehold interest in real
property having a fair market value exceeding $500,000 (other than Excepted
Property) (a) a mortgagee policy of title insurance on the most recent form of
American Land Title Association standard loan policy, extended coverage, which
policy shall (i) contain all such endorsements and affirmative insurance, to the
extent reasonably applicable, as is contained in the Original Policy and (ii)
evidence that title to such real property is subject to no liens or encumbrances
(other than Permitted Encumbrances) which would (A) render title unmarketable or
(B) violate any other provision of this Senior Note Mortgage or the Senior Note
Indenture, (b) an as-built survey meeting the "Minimum Standard Detail
Requirements for ALTA/ACSM Land Title Surveys", certified within 60 days prior
to the acquisition date by a surveyor licensed in the State of New Jersey using
the same form of certification as that contained in 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 Requirement and Insurance Requirements.
Mortgagor shall:
(a) subject to the provisions of Section 5.8, pay or cause to be
paid before the date on which any fine, penalty, interest or cost may be added
for nonpayment (but no later than when the same are payable by Mortgagor
pursuant to any Superior Instrument Requirement), all taxes (including, without
limitation, real estate taxes, personal or other property taxes and all sales,
value added, use and similar taxes), assessments (including, without limitation,
all assessments for public improvements or benefits, whether or not commenced or
completed prior to the date hereof and whether or not to be completed prior to
the satisfaction of this Mortgage), water, sewer or other rents, rates and
charges, excises, levies, license fees, permit fees, inspection fees and other
authorization fees and other charges, in each case whether general or special,
ordinary or extraordinary, foreseen or unforeseen, of every character
(including, without limitation, all interest, additions to tax and penalties
thereon), that may be assessed, levied, confirmed or imposed on or in respect of
or be a lien upon (i) the Trust Estate (including, without limitation, the
Leased Land) or any part thereof or any rent therefrom or any estate right or
interest therein, or (h) 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
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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 Note;
(b) except for such obsolete property as Mortgagor may dispose of or
replace pursuant to Section 2.2, maintain and keep all of Mortgagor's properties
used or useful in the conduct of Mortgagor's business, including, without
limitation, the Casino Hotel and all Tangible Personal Property, in such good
repair, working order and condition, except for reasonable wear and use, and
make or cause to be made all such needful and proper repairs, renewals and
replacements thereto consistent with the standards of first-class casino and
hotel complexes in Atlantic City, New Jersey;
(c) occupy and continuously operate the Casino Hotel and keep the
Casino Hotel supplied with Tangible Personal Property, all in a manner
consistent with the standards of first-class casino and hotel complexes in
Atlantic City, New Jersey;
(d) subject to the provisions of Section 5.8, (i) comply with all
Legal Requirements and Insurance Requirements, whether or not compliance
therewith shall require structural changes in the buildings and improvements
included in the Trust Estate or interfere with the use and enjoyment of the
Trust Estate or any part thereof, (ii) procure, maintain and comply with all
Permits required for (1) the use of the Casino as a gaming and gambling
facility, (2) the on-premises consumption of alcoholic beverages at the Casino
Hotel and (3) any other use of the Trust Estate or any part thereof then being
made, and for the proper erection, installation, operation and maintenance of
the improvements or any part thereof, (iii) comply with all obligations of
Mortgagor under, and keep in full force and effect, all easements which in any
respect inure to the benefit of, or otherwise affect, the Trust Estate or any
part thereof, if the failure to comply with the same would impair Mortgagee's
security hereunder, and (iv) without limiting the generality of clause (iii),
comply with any instruments of record at the time in force affecting the Trust
Estate or any part thereof, if the failure to comply with the same would impair
Mortgagee's security hereunder. Without limiting the generality of the
foregoing, Mortgagor represents and warrants that at the time of the execution
of this Mortgage, Mortgagor is in compliance with the requirements of clauses
(i), (ii), (iii) and (iv) above; and
(e) in the event of the passage after the date of this Mortgage of
any law of the State of New Jersey, or any other governmental entity, changing
in any way the laws now in force for the taxation of mortgages, or debts secured
thereby, for federal, state or local purposes, or
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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 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
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
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time to time included under "all-risk" policies and against loss or damage
by sprinkler leakage, water damage, collapse, malicious mischief and
explosion in respect of any steam and pressure boilers and similar
apparatus located on such insurable properties, in amounts at all times
sufficient to prevent Mortgagor from becoming a coinsurer within the terms
of the applicable policies, but in any event such insurance shall be
maintained in not less than the greatest of the following (the "Insurance
Amount"): (A) 100% of the then Full Insurable Value of such insurable
properties, determined from time to time (but not less frequently than
once in any 36 calendar months), by an Appraiser or Insurer, (B) the then
Outstanding Amount of Mortgage Debt, including the Senior Partnership
Note, or (C) the amount required to be maintained pursuant to the Superior
Instrument Requirements;
(ii) war risk insurance as and when such insurance is
obtainable from the United States of America or any agency thereof as
promptly as reasonably practicable after the same becomes so obtainable,
in an amount not less than the Insurance Amount, or, if such insurance
cannot be obtained in an amount not less than the Insurance Amount, in
such lesser amount as may then be so obtainable;
(iii) comprehensive general liability insurance, including,
without limitation, blanket contractual liability coverage, broad form
property damage, independent contractor's coverage and personal injury
coverage against any and all claims arising out of or connected with the
possession, use, leasing, operation or condition of such insurable
properties, in an amount not less than $100,000,000 combined single limit
coverage for personal injury and property damage with respect to any one
occurrence, which may be under an umbrella policy. Anything contained in
this clause (iii) to the contrary notwithstanding, the Superior Instrument
Requirements with respect to the kinds and amount of insurance described
in this clause (iii) shall be satisfied by Mortgagor;
(iv) workers' compensation insurance to the extent required by
law;
(v) business interruption insurance covering not less than 6
months of loss, provided that, at any time that Mortgagor is renewing any
policy for such insurance or 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
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(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
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
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$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 immediately prior to
the Casualty and the estimated Appraised Value immediately after the
Restoration). If Mortgagor is required to deliver such Certificates of Appraised
Value and if based on such Certificates of Appraised Value immediately after
Restoration, (i) the aggregate Outstanding Amount of Indebtedness of the
Mortgagor, 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 immediately prior to such Casualty divided by the Appraised
Value immediately prior to the Casualty multiplied by the Appraised Value
immediately after such Restoration, or (ii) applicable Legal Requirements do not
permit the Restoration of the Casino Hotel for use as a casino and hotel
complex, then, in either of such events, the proceeds of any insurance shall not
be applied to Restoration but shall instead be paid and delivered to Mortgagee
to the extent of the then Outstanding Amount of the Senior Partnership Note and
any other interest or other sums due hereunder or thereunder to be applied to
the satisfaction of this Mortgage to the extent proceeds are available for such
purpose and provided that no additional sums are due to the Trustee or the
Holders under the 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:
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(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 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
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required by Superior Instrument Requirements), by paying to Mortgagor or
the persons named in the certificate described in clause (vi) of this
Subsection (e) the respective amounts stated in such certificate from time
to time as the Restoration progresses, provided Mortgagor has complied
with the requirements of this Subsection (e) and such payment is permitted
by any applicable Superior Instrument Requirements. Mortgagor's request
shall be accompanied by (A) the certificate described in clause (vi) of
this Subsection (e) and (B) a title company or official search, or other
evidence reasonably acceptable to the Insurance Trustee, showing that
there have not been filed with respect to the Premises, any vendor's,
contractor's, mechanic's, laborer's or materialman's statutory or similar
lien which has not been discharged of record (or bonded against or secured
by other security) or any other encumbrance irrespective of its priority
(other than Permitted Encumbrances).
(vi) The certificate required by clause (v) of this Subsection
(e) shall (A) be a Mortgagor's Certificate, countersigned by the Architect
in charge of the Restoration with respect to the matters described in (1)
and (5) below, (B) be dated not more than 10 days prior to such request
and (C) set forth (in addition to any other requirements contained in any
applicable Superior Instrument Requirements) that:
(1) all of the Restoration theretofore performed is in
substantial compliance with the plans and specifications theretofore
submitted to the Insurance Trustee and in compliance with all
Superior Instrument Requirements, Legal Requirements and
Insurance Requirements;
(2) the sum then requested either has been paid by
Mortgagor or is justly due to contractors, subcontractors,
materialmen, engineers, architects or other persons who have
rendered services or furnished or contract 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
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(5) the remaining cost, as estimated by the persons
signing such certificate, of the Restoration in order to complete
the same does not exceed the net insurance proceeds remaining in the
hands of Insurance Trustee after payment of the sum requested in
such certificate or if such estimated cost does exceed such
insurance proceeds such certificate shall state the amount of any
such deficiency. If the certificate states that such deficiency will
exist, Mortgagor shall deliver the amount of such deficiency in cash
or cash equivalent to the Insurance Trustee simultaneously with the
delivery of such certificate, which amount shall be deemed insurance
proceeds for purposes of this Section 5.10(e).
(vii) If net insurance proceeds shall be insufficient to pay
the entire cost of the Restoration, then, after completion of the
Restoration, Mortgagor shall pay the deficiency. If all or any part of the
net insurance proceeds are not used for the Restoration in accordance with
this Subsection (e) (because such proceeds exceed the amount required to
complete the Restoration), then upon completion of the Restoration in
accordance with this Subsection (e), such amount not so used, if held by
the Insurance Trustee, shall be paid to Mortgagor (if permitted by
Superior Instrument Requirements).
(f) Mortgagor shall not take out separate insurance, concurrent in
form or contributing in the event of loss with that required to be maintained
pursuant to this Section 5.10, unless the same is permitted by Superior
Instrument Requirements. Mortgagor shall immediately notify Mortgagee whenever
any such separate insurance is taken out and shall promptly deliver to Mortgagee
a duplicate original of the policy of such insurance, a copy thereof certified
by the insurer or a certificate thereof. Provided that no Event of Default has
occurred and is continuing, all net business interruption insurance proceeds
shall be paid to Mortgagor, to be segregated from the other funds of Mortgagor
and held in trust by Mortgagor for the following purposes and in the following
order of priority: (i) for the payment of Impositions and amounts due under the
Facility Leases, (ii) for debt service under the Senior Partnership 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 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
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adjustment shall not be unreasonably withheld.
(h) Notwithstanding anything contained herein to the contrary, if
an Event of Default shall have occurred and be continuing, Mortgagee may, at its
option, (A) refrain from paying to Mortgagor or the Insurance Trustee any net
insurance proceeds or (B) instruct the Insurance Trustee to pay to Mortgagee any
insurance proceeds then held by the Insurance Trustee, as the case may be.
Section 5.11. Limitations on Building Demolition, Alterations, Improvements and
New Construction.
Mortgagor shall not authorize, permit or make any demolition,
alteration or improvement of any building, structure or other improvements
included in the Trust Estate or any new construction on any part of the Trust
Estate, except in conformity with and subject to the limitations hereinafter in
this Section 5.11 set forth and set forth in the Senior Note Indenture.
Unless an Event of Default shall have occurred and be continuing,
Mortgagor shall have the right at all times to make or permit such demolition,
alterations, improvements or new construction, structural or otherwise (herein
sometimes called collectively "Alterations" and each, individually, an
"Alteration"), of the Trust Estate, to be made in all cases subject to each of
the following conditions:
(a) No Alteration shall be undertaken or carried out except in
conformity with all Superior Instrument Requirements, Legal Requirements and
Insurance Requirements.
(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
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to the work to be so performed, naming Mortgagee as obligee, issued by a
responsible surety company, authorized to do business in the State of New
Jersey, in a form generally and customarily used by such surety in an amount
equal to the estimated cost of construction of the work covered by the plans and
specifications therefor, guaranteeing the performance and completion of such
construction, substantially in conformity with the said plans and specifications
and within a reasonable time, subject to delays by fire, strikes, lock-out, acts
of God, inability to obtain labor or materials, governmental restrictions, enemy
action, civil commotion or unavoidable Casualty or other similar causes beyond
the control of Mortgagor, free and clear of all liens, claims and liabilities
for the cost of such Alterations. If such surety bond or bonds shall be
unobtainable Mortgagor shall deliver to Mortgagee security by cash, letter of
credit or other guarantee, affording substantially the same protection as would
such bond or bonds.
(e) All work done in connection with any Alterations shall be done
promptly and in good and workmanlike manner. The work in connection with any
Alteration shall be prosecuted with reasonable dispatch, delays due to fire,
strikes, lock-outs, acts of God, inability to obtain labor or materials,
governmental restrictions, enemy action, civil commotion or unavoidable Casualty
or similar causes beyond the control of Mortgagor excepted.
(f) If the estimated cost of Alterations exceeds $5,000,000,
Mortgagor shall have delivered to Mortgagee (i) prior to the commencement of
such Alterations, copies of all Permits required for the commencement of such
work together with a certificate of the Architect or an Opinion of Counsel to
the effect that all Permits required for the commencement of such Alterations
have been obtained; and (ii) within a reasonable period of time after the
completion of the Alterations, copies of all Permits required in connection with
the completion thereof, together with either an Opinion of Counsel or a
certificate of the Architect that all such Permits have been so obtained by
Mortgagor and that Mortgagor has complied with all the requirements of this
Section 5.11.
(g) No Alterations of any kind shall be made which shall change
the use or reduce the size or quality of any building, structure or other
improvements in any material respect or which shall change the use of the Casino
Hotel from its use as a gaming and hotel facility.
(h) No Alterations costing in excess of $5,000,000, together with
other Alterations that constitute a single construction plan or project (whether
or not accomplished in several stages or procedures), shall be made if such
Alterations are not expected to be completed at least 120 days prior to the
Stated Maturity of the Senior Partnership Note (except if such Alterations are
required in order to comply with Legal Requirements or Superior Instrument
Requirements).
(i) Mortgagor shall maintain at all times during the performance
of Alterations, in addition to any insurance required to be maintained under
Section 5.11 hereof, appropriate workers' compensation insurance covering all
persons employed for such Alterations to the
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extent required by applicable law, and comprehensive general liability insurance
expressly covering the additional hazards due to such Alterations. Each such
policy of insurance shall comply with the provisions of Section 5.10(b), and
Mortgagor shall comply with Subsections (c), (d), (e), (f), (g) and (h) of
Section 5.10 in connection with all such insurance.
Section 5.12. Leases.
Mortgagor shall not:
(a) lease the Trust Estate substantially as an entirety to any
Person (except in accordance with the provisions of Article Eight of the Senior
Note Indenture), nor shall Mortgagor lease either the Casino Hotel or the Casino
or the Hotel or any parking facilities substantially as an entirety to any
Person;
(b) enter into any Lease, or renew, modify, extend, terminate, or
amend any Lease, except in the ordinary course of business of operating the
Casino Hotel;
(c) receive or collect, or permit the receipt or collection of, any
rental payments under any Lease more than one month in advance of the respective
periods in respect of which they are to accrue, except that, in connection with
the execution and delivery of any Lease or of any amendment to any Lease, rental
payments thereunder may be collected and received in advance in an amount not in
excess of three months' rent and/or a security deposit may be required
thereunder in an amount not exceeding one year's rent;
(d) collaterally assign, transfer or hypothecate (other than to
Mortgagee hereunder or to the holder of the Senior Guarantee Mortgage, the
holder of the TCHI Note Guarantee Mortgage or the holder of the Senior
Partnership Upstream Note 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
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(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
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.
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Promptly after Mortgagor may reasonably be deemed to have knowledge
of a default hereunder, Mortgagor shall deliver to Mortgagee a notice specifying
the nature and period of existence thereof and the action Mortgagor is taking
and proposes to take with respect thereto.
Section 5.14. To Keep Books; Inspection by Mortgagee.
Mortgagor will keep proper books of record and account, in which
full and correct entries shall be made of all dealings or transactions of or in
relation to the Senior Partnership Note and the properties, business and affairs
of Mortgagor in accordance with generally accepted accounting principles
consistently applied. Said books shall be maintained in an office located either
in Atlantic City, New Jersey or in the Borough of Manhattan, City of New York,
State of New York. Mortgagor shall at any and all times, upon request of
Mortgagee and at the expense of Mortgagor, permit Mortgagee and its
representatives to inspect the Casino Hotel and any other buildings, structures
and improvements now or hereafter located on the Land and the books of account,
records, reports and other papers of Mortgagor, and to make copies and extracts
therefrom, and will afford and procure a reasonable opportunity to make any such
inspection (provided, that any such inspection shall not unreasonably interfere
with the business operations of Mortgagor), and Mortgagor will furnish to
Mortgagee any and all information as Mortgagee may reasonably request, with
respect to the performance by Mortgagor of its covenants in this Mortgage.
Section 5.15. Advances by Mortgagee.
If Mortgagor shall fail to perform any of the covenants, terms,
provisions or conditions contained in this Mortgage and such failure shall
continue for 10 days following notice thereof given by Mortgagee (or at any
time, without notice, in case of emergency), Mortgagee may (but is not obligated
to), at any time and from time to time, take any action or make advances, to
effect performance of any such covenant, term, provision or condition on behalf
of Mortgagor; and all moneys so used, paid or advanced by Mortgagee and all
reasonable costs and expenses incurred by Mortgagee in connection therewith,
together with interest on all of the same at the rate of interest set forth in
the Senior Partnership Note, shall be immediately due and payable by Mortgagor
to Mortgagee and all such moneys, costs and expenses shall be secured by the
lien of this Mortgage prior to the Senior Partnership Note. No such advance or
payment by Mortgagee shall relieve Mortgagor from any default hereunder or
impair any right or remedy of Mortgagee.
Section 5.16. Waiver of Stay, Extension or Usury Laws.
Mortgagor covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner whatsoever claim
or take the benefit or advantage of, any usury, stay or extension law or any
other law which would prohibit or forgive Mortgagor from paying all or any
portion of the obligations secured by this Mortgage, wherever enacted, now or at
any time hereafter in force, or which may otherwise affect the
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covenants or the performance of this Mortgage; and Mortgagor (to the extent that
it may lawfully do so) hereby expressly waives all benefit or advantage of any
such law, and covenants that it shall not hinder, delay or impede the execution
of any power herein granted to Mortgagee, but shall suffer and permit the
execution of every such power as though no such law had been enacted.
Section 5.17. Eminent Domain.
(a) Mortgagor shall notify Mortgagee immediately upon obtaining
knowledge of any Taking affecting the Trust Estate or any part thereof. If the
Taking is a Taking of less than the whole or substantially all of the Premises
but (i) is estimated to result in an award of more than $10,000,000 or (ii) the
Taking will interfere with or adversely affect the operation of the Casino Hotel
(other than any portion thereof consisting solely of unimproved, paved or
unpaved surface parking) other than to a de minimis extent, then within 30 days
after such Taking, Mortgagor shall deliver to Mortgagee a certificate of an
Architect stating whether, in such Architect's opinion, applicable Legal
Requirements permit the Restoration of any buildings and improvements for the
same uses and to the same size and quality in all material respects as existed
immediately prior to the Taking (and if said certificate states that Legal
Requirements do not permit such Restoration, said certificate shall describe the
manner closest approximating such criteria to which the buildings and
improvements could be so restored and shall be accompanied by a Certificate of
Appraised Value dated not more than 10 days prior to delivery setting forth the
Appraised Value immediately prior to the Taking and the estimated Appraised
Value immediately after the permitted Restoration). If Mortgagor is required to
deliver such Certificate of Appraised value and if based on such Certificate of
Appraised Value immediately after Restoration, (i) the Outstanding Amount of
Indebtedness of the 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 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
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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 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 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 Team.
(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
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imposed upon or assumed by it as lessee under each of the Facility Leases
(including, without limitation, the covenant to pay rent and all taxes,
assessments and other charges mentioned therein) prior to the expiration of any
notice and/or cure period provided in each such Facility Lease. Upon receipt by
Mortgagee from a Lessor of any written notice of default by the lessee
thereunder, Mortgagee may rely thereon and take any action Mortgagee deems
necessary in its sole discretion to prevent or to cure any default by Mortgagor
in the performance of or compliance with any of the agreements, covenants, terms
or conditions imposed upon or assumed by Mortgagor as lessee under such Facility
Lease, even though the existence of such default or the nature thereof be
questioned or denied by Mortgagor or by any party on behalf of Mortgagor.
Without limiting the generality of Section 3.9, Mortgagor hereby expressly
grants to Mortgagee, and agrees that Mortgagee shall have, the absolute and
immediate right to enter in and upon the Premises or any part thereof to such
extent and as often as Mortgagee, in its sole discretion, deems necessary or
desirable for the purpose permitted by the immediately preceding sentence,
subject only to applicable Legal Requirements. Without limiting Mortgagor's
obligations or Mortgagee's rights set forth above or limiting Mortgagee's other
remedies under this Mortgage, Mortgagee may pay and expend such sums of money as
Mortgagee in its sole discretion deems necessary for any such purpose, and
Mortgagor hereby agrees to pay to Mortgagee immediately and without demand, all
such sums referred to above, so paid and expended by Mortgagee, together with
interest thereon from the date of each such payment at the highest rate of
interest set forth in the Senior Partnership Note. All sums so paid and expended
by Mortgagee, and the interest thereon, shall be added to and be secured by the
lien of this Mortgage.
(b) Mortgagor further covenants and agrees as follows:
(i) Mortgagor shall not surrender, terminate or cancel any
Facility Lease, and shall not without the consent of Mortgagee modify,
change, supplement, alter or amend any Facility Lease either orally or in
writing if an impairment of the security granted under this Mortgage would
result therefrom. As further security for the repayment of the
indebtedness secured hereby and for the performance of the covenants
herein and in each Facility Lease contained, Mortgagor hereby assigns to
Mortgagee all of Mortgagor's rights, privileges and prerogatives as lessee
under each Facility Lease to terminate, cancel, modify, change,
supplement, alter or amend such Facility Lease and any such termination,
cancellation, modification, change, supplement, alteration or amendment of
a Facility Lease without the prior consent thereto by Mortgagee shall be
void and of no force and effect. Unless (1) an Event of Default has
occurred and is continuing and (2) either (A) there has been an
acceleration of maturity of the Senior Partnership Note pursuant to
Section 3.2 or (B) Mortgagee exercises its rights under Section 3.9,
Mortgagee shall have no right to terminate, cancel, modify, change,
supplement, alter or amend any Facility Lease.
(ii) Solely for the benefit of Mortgagee, Trustee, the Holders
and no other person, no release or forbearance of any of Mortgagor's
obligations under any Facility
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Lease, pursuant to such Facility Lease or otherwise, shall release
Mortgagor from any of Mortgagor's other obligations under this Mortgage.
(iii) Unless Mortgagee shall otherwise expressly consent in
writing, the fee title to the Leased Facilities and Mortgagor's leasehold
estates therein shall not merge and shall always remain separate and
distinct, notwithstanding the union of said estates either in the Lessor
or in the lessee, or in a third party by purchase or otherwise.
(iv) Mortgagor shall promptly notify Mortgagee in writing of
any request made by Mortgagor, as lessee under any Facility Lease, or any
of the Lessors, for arbitration proceedings under any Facility Lease and
of the institution of any arbitration proceedings, as well as all
proceedings thereunder. Mortgagor shall promptly deliver to Mortgagee a
copy of the determination of the arbitrators in each such arbitration
proceeding. Mortgagee shall have the right to participate in such
arbitration proceedings in association with Mortgagor or on its own behalf
as an interested party.
(v) Mortgagor shall not consent to the subordination of any
Facility Lease to any mortgage, deed of trust or other lien on the fee
interest of the Lessor.
(vi) If Mortgagor acquires fee simple title or any other
estate, title or interest in any Leased Facility, Mortgagor shall promptly
notify Mortgagee of such acquisition and, on request by Mortgagee, shall
cause to be executed and recorded all such other and further assurances or
other instruments in writing as may in the opinion of Mortgagee be
required or desirable to carry out the intent and meaning of clause (x) of
Granting Clause Third.
(vii) Within 5 days after Mortgagor's receipt of any notice of
any motion, application or effort to reject any Facility Lease by any
Lessor or any trustee arising from or in connection with any case,
proceeding or other action commenced or pending by or against any Lessor
under the Code or any comparable provision contained in any present or
future federal, state, local, foreign or other statute, law, rule or
regulation ("Comparable Provision"), Mortgagor shall give notice thereof
to Mortgagee. Mortgagor hereby (A) assigns to Mortgagee any and all of
Mortgagor's rights as 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
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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 DRAFT ate on which Mortgagor shall apply to the Bankruptcy Court or
other judicial body with appropriate jurisdiction for authority to reject
such Facility Lease. Mortgagee shall have the right, but not the
obligation, to serve upon Mortgagor within such 10-day period a notice
stating that (a) Mortgagee demands that Mortgagor assume and assign such
Facility Lease to Mortgagee pursuant to Section 365 of the Code or any
Comparable Provision and (b) Mortgagee covenants to cure or provide
adequate assurance of prompt cure of all defaults and provide adequate
assurance of future performance under such Facility Lease. If Mortgagee
serves upon Mortgagor the notice described in the preceding sentence,
Mortgagor shall not seek to reject such Facility Lease and shall comply
with the demand provided for in clause (a) of the preceding sentence
within 30 days after the notice shall have been given subject to the
performance by Mortgagee of the covenant provided for in clause (b) of the
preceding sentence. The foregoing provisions of this Section 5.18(ix)
shall not apply to the extent not permitted by applicable law. Effective
upon the entry of an order for relief in respect of Mortgagor under
Chapter 7 of the Code or any Comparable Provision, Mortgagor hereby
assigns and transfers to Mortgagee a non-exclusive right to apply to the
Bankruptcy Court or other judicial body with appropriate jurisdiction for
an order extending the period during which such Facility Lease may be
rejected or assumed.
(x) Mortgagor shall promptly give to Mortgagee copies of (A)
all notices of default and (B) any other communications or notices with
respect to events that relate to the possible impairment of the security
of this Mortgage, which Mortgagor shall give or receive under any Facility
Lease and shall promptly notify Mortgagee of any default under any
Facility Lease on the part of the Lessor or Mortgagor.
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(xi) Mortgagor shall enforce with due diligence all of the
obligations of the Lessor under each Facility Lease, to the end that
Mortgagor may enjoy all of the rights and privileges granted to it under
the Facility Leases.
(xii) Mortgagor shall notify Mortgagee within 5 days after the
transfer of a fee interest in any Leased Facility or any portion thereof
to or from an Affiliate.
(xiii) No Affiliate of Mortgagor shall at any time hereafter
acquire fee title to the Leased Land or any portion thereof unless
simultaneously with such acquisition such Affiliate and Mortgagor execute
and exchange (and deliver to the Trustee an executed counterpart of) an
instrument in form and substance satisfactory to Mortgagee providing that
so long as such Affiliate owns such fee title (A) such Affiliate shall not
terminate the applicable Facility Lease for any reason whatsoever
(including, without limitation, due to the default of Mortgagor under such
Facility Lease) and (B) such Affiliate shall not accept, and, if tendered
by Mortgagor shall promptly return to Mortgagor, any payment of rent or
other charges payable under such Facility Lease in excess of the amount
required to pay the debt service and other sums payable under any mortgage
affecting such Affiliate's fee interest in the applicable Leased Facility
(and such Affiliate shall use such funds only to pay its debt service
obligations and other sums payable under such mortgage) at any time that
an Event of Default, or a Default of the types described in Section
3.1(a), (b) and (f) of this Mortgage or Section 5.1(a), (b), (f) or (g) of
the Senior Note Indenture, shall have occurred and be continuing under
this Mortgage or the Senior Note Indenture.
(c) Subject to the provisions of Subsection 5.18(b)(iii), if both
the lessor's and lessee's estates under any Facility Lease or any portion
thereof shall at any time become vested in one owner, this Mortgage and the lien
created hereby shall nevertheless not be destroyed or terminated by application
of the doctrine of merger and, in such event, Mortgagee shall continue to have
all of the rights and privileges of a first leasehold mortgagee.
(d) Mortgagor hereby acknowledges that if any Facility Lease shall
be terminated prior to the natural expiration of its term due to default by the
lessee thereunder, and if pursuant to such Facility Lease, Mortgagee or its
designee shall acquire from the Lessor a new lease of the Leased Facility or any
portion thereof, Mortgagor shall have no right, title or interest in or to such
lease or the leasehold estate created thereby, or the options therein contained.
(e) Each Facility Lease hereafter entered into or assumed by
Mortgagor as lessee or sublessee shall contain provisions (i) permitting the
assignment of the same to Mortgagee and the Trustee and permitting assignment
without the lessor's consent if this Mortgage is foreclosed; and (ii) providing
protection to Mortgagee, as leasehold mortgagee, in form reasonably satisfactory
to Mortgagee.
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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 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 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.
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Section 5.20. TCHI 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 TCHI Mortgages prior to the expiration of any notice and/or
cure period provided in each such TCHI Mortgage. If a notice of default has been
given by the holder of the TCHI 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 TCHI 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 TCHI 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 Note. All sums so paid and expended
by Mortgagee and the interest thereon, shall be added to and be secured by the
lien of this Mortgage.
(b) Mortgagor further covenants and agrees:
(i) Mortgagor shall not, without first obtaining the consent
of Mortgagee in each instance: (A) modify, replace or refinance the TCHI
Mortgages if (x) the collateral securing the lien thereof would be
increased thereby (other than after-acquired property required by the
terms of the TCHI Mortgages to be encumbered thereby) or (y) such
modification, replacement or refinancing violates any other provision of
this Senior Note Mortgage or the Senior Note Indenture or (B) acquire or
permit or suffer any Affiliate of Mortgagor to acquire the TCHI 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 TCHI
Mortgages, the notes secured thereby and any other instrument evidencing
or securing the indebtedness owing to any holder of the TCHI 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
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addressed to Mortgagee from the holder of the TCHI 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 TCHI
Mortgages and shall promptly notify Mortgagee of any default under the
TCHI 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 duty 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/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------- -------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President and Chief Executive
Officer
TRUMP'S CASTLE FUNDING, INC., a
New Jersey Corporation
Witness: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------- -------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President and Chief Executive
Officer
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STATE OF NEW YORK )
)ss.:
COUNTY OF NEW YORK )
BE IT REMEMBERED, that on this 15th day of April, 1998, before me
the subscriber, a Notary Public of the State of New York, personally appeared
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, the President and Chief Executive Officer 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 15th day of April, 1998, before me
the subscriber, a Notary Public of the State of New York, personally appeared
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, the President and Chief Executive Officer of TRUMP'S CASTLE
FUNDING, 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 Note Mortgage and hereby
subordinates the lien created by the Subordinate Associates Mortgage to this
Senior 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 Note Mortgage and hereby
subordinates the lien created by the Subordinate Mortgage to this Senior 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 cast,
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 ▇▇▇▇▇ 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 Funding, 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 a Senior TCHI 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 __________] and as it
may be hereafter amended from time to time (the "Lease") covering (the "Demised
Premises").
NOW, THEREFORE, in consideration of the mutual agreements herein
contained and other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, the parties hereto agree as follows:
1. Tenant covenants and agrees that the Lease now is and shall at
all times continue to be subject and subordinate in each and every respect to
the Mortgage. Tenant, upon request, shall execute and deliver any certificate or
other instrument which the Mortgagee may reasonably request to confirm said
subordination by Tenant.
2. Tenant certifies that the Lease is presently in full force and
effect and unmodified and no base rent payable thereunder has been paid more
than one (1) Year in advance of its due date, and that no default exists under
the Lease which has continued beyond the expiration of any applicable grace
period.
4-1
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 referred
by reason of foreclosure or other proceedings for enforcement of the Mortgage or
pursuant to a taking of a deed in lieu of foreclosure (or similar device),
Tenant shall be bound to the Successor, and, except as provided in this
Agreement, the Successor shall be bound to Tenant, under all of the terms,
covenants and conditions of the Lease for the balance of the term thereof
remaining, with the same force and effect as if the Successor were the Landlord,
and Tenant does hereby (i) agree to attorn to the Successor, including Mortgagee
if it be the Successor, as its landlord, (ii) affirm its obligations under the
Lease, and (iii) agree to make payments of all sums due under the Lease to the
Successor, said attornment, affirmation and agreement to be effective and
self-operative without the execution of any further instruments, upon the
Successor succeeding to the interest to the Landlord under the Lease. Tenant
waives the provisions of any statute or rule of law now or hereafter in effect
that may
4-2
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