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ASSIGNMENT
OF
LEASES AND RENTS
XXXXX XXX XXXXX ASSOCIATES,
as Assignor
to
U.S. BANK NATIONAL ASSOCIATION,
AS COLLATERAL AGENT,
as Assignee
Dated as of December 10, 1997
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Record and Return to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx, Esq.
ASSIGNMENT OF LEASES AND RENTS
THIS ASSIGNMENT OF LEASES AND RENTS (the "Assignment") made as of the
day of December, 1997, by XXXXX XXX XXXXX ASSOCIATES, a New Jersey general
partnership ("Assignor"), and U.S. BANK NATIONAL ASSOCIATION, a national
banking association having an office at 000 Xxxx Xxxxx Xxxxxx, Xx. Xxxx,
Xxxxxxxxx 00000, as Collateral Agent ("Assignee"), on behalf of the Designated
Representatives (as defined in the Collateral Agency Agreement) for the benefit
of the Secured Beneficiaries (as defined in the Collateral Agency Agreement)
under the Collateral Agency Agreement (as hereinafter defined).
W I T N E S S E T H:
WHEREAS, the Issuers simultaneously herewith have issued First
Mortgage Notes in the aggregate principal amount of $100,000,000 due 2006, as
more particularly described in the Mortgage (as hereinafter defined) which
Mortgage Notes were issued pursuant to those certain Trust Indentures, as more
particularly described in the Mortgage, dated as of even date herewith (the
"Trust Indenture"), among Assignor, the Issuers, Guarantors and U.S. Bank
National Association, as Trustee (the "Trustee"), as the same may be amended
from time to time in accordance with its terms;
WHEREAS, Assignor is the owner of a certain casino hotel facility (the
"Facility") known as Xxxxx Xxx Xxxxx Casino Resort located in Atlantic City,
Atlantic County, New Jersey, including the improvements now or hereafter erected
thereon, and the easements, rights and appurtenances thereunto belonging (the
real property on which the Facility is located which is more particularly
described on Schedule 1 attached hereto and all other real property owned or
leased by Assignor, and Assignor's interests in such real property together with
all buildings and improvements erected thereon are collectively referred to as
the "Property"); and
WHEREAS, the parties hereto desire that additional secured
indebtedness of the Assignor be permitted
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to be secured equally and ratably with the Obligations in accordance with the
terms of the Collateral Agency Agreement, dated as of the date hereof (the
"Collateral Agency Agreement"), by and among Assignee, Trustee, the Issuers, the
Guarantors and the other Designated Representatives (as defined in the
Collateral Agency Agreement) who become a party thereto, as the same may be
amended from time to time in accordance with its terms; and
WHEREAS, Assignor simultaneously herewith has executed and delivered
in favor of Assignee an Indenture of Mortgage and Security Agreement, dated as
of even date herewith (the "Mortgage"), between Assignor, as mortgagor and
Assignee, as mortgagee, pursuant to which Assignor has encumbered, mortgaged and
conveyed to Assignee all of Assignor's right, title and interest in and to the
Trust Estate (as defined in the Mortgage), including, without limitation, all of
Assignor's right, title and interest in and to the Property, as further security
for the performance and observance of (i) the Guarantors' obligations under the
Guarantee and (ii) the punctual payment and performance when due of all of the
Company's, the Issuers', the Guarantors' and Assignor's obligations under the
Mortgage Notes, the Trust Indenture and the Debt Documents; and
WHEREAS, Assignor is the owner, in fee simple absolute, of the Owned
Land (as defined in the Mortgage) and the holder of certain leasehold or license
estates with respect to the Leased Land (as defined in the Mortgage); and
Assignor has and may hereafter enter into leases, subleases or occupancy
agreements, as lessor or sublessor, as the case may be, concerning or affecting
the use or occupancy of Assignor's interests or estates in and to the Property
or any part thereof; and
WHEREAS, Assignee has required this Assignment to be made by Assignor
as a condition to the purchase by the Holders of the Mortgage Notes.
NOW, THEREFORE, Assignor, for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, does hereby bargain,
sell, transfer, assign, convey, set over and deliver unto Assignee as additional
security for the punctual payment and performance when due of all of the
Guarantors' obligations under the Guarantee and the payment and performance when
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due of all of the Company's, the Issuers', the Guarantors' and the Assignor's
obligations under the Mortgage Notes, the Trust Indenture and the Debt Documents
and any and all amendments, extensions and renewals thereof (subject, however,
to the rights of the holders of Superior Mortgages and other Permitted Liens (as
such terms are defined in the Mortgage)), all of the following (collectively,
the "Assigned Assets"):
(a)(i) all leases or occupancy agreements wherein Assignor is
lessor concerning or affecting the use or occupancy of the Property or
any part thereof, now existing or which may be executed at any time in
the future, and all amendments, extensions and renewals of said leases
or occupancy agreements, and any of them, all of which are
collectively called the "Leases",
(ii) all rents, fees, charges, income, revenues, issues,
profits, security and other payments which may now or hereafter be or
become due or owing under the Leases, and any of them, and any and all
payments derived from or relating to the Leases to which Assignor is
entitled, including, without limitation, (x) claims for the recovery
of damages done to the Property, (y) claims for damages resulting from
acts of insolvency or acts of bankruptcy or otherwise, and (z) lump
sum payments for the cancellation of Leases or the waiver of any
obligation or term thereof prior to the expiration date (collectively,
the "Rents"); and
(b) all of the rents, 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 (i) the use or occupancy of the
rooms and other public facilities in the Hotel (as defined in the
Mortgage) and (ii) the operation of the Casino (as defined in the
Mortgage)) of the Trust Estate (as defined in the Mortgage) and all of
the estate, right, title and interest of every nature whatsoever of
Assignor in and to
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the same and every part thereof (collectively, the "Profits").
Provided, however, that no Excepted Property (as defined in the Mortgage) is
conveyed hereby; it being intended hereby to establish a present and complete
transfer unto Assignee of all of Assignor's right, title, interest and estate in
and to the Assigned Assets, provided, however, that Assignor is hereby granted a
license by Assignee to (i) collect all of the Rents and Profits which may become
due during the life of this Assignment and (ii) enter into, renew, modify,
extend, terminate, amend, collectively assign, transfer or hypothecate any or
all of the Leases, in accordance with the provisions of Section 5.13 of the
Mortgage, each until an Event of Default under the Mortgage (an "Event of
Default") shall have occurred and Assignee shall have notified Assignor (in the
manner set forth in the Mortgage for the giving of notices) of Assignee's
election to revoke such license (a "Revocation Event"). Upon the occurrence of
an Event of Default, Assignor agrees to deposit with Assignee upon demand such
of the Leases as may from time to time be designated by Assignee.
All capitalized terms not otherwise defined herein shall have the
meaning set forth in the Mortgage.
Assignor hereby appoints Assignee the true and lawful attorney of
Assignor with full power of substitution, and with power for Assignor and in the
name of Assignor and/or in Assignor's name, place and stead, to demand, collect,
receipt and give complete acquittance for any and all Rents and Profits, and at
Assignee's discretion to file any claim or take any other action or proceeding
and make any settlement of any claims, either in Assignee's own name or in the
name of Assignor or otherwise, which Assignee may deem necessary or desirable in
order to collect and enforce the payment of any and all Rents and Profits. No
right shall be exercised by Assignee under this paragraph until a Revocation
Event has occurred. All lessees under the Leases are hereby expressly
authorized and directed, after the occurrence of a Revocation Event, to pay all
rents and other sums herein assigned to Assignee or such nominee as Assignee may
designate in writing delivered to and received by such lessees, who thereafter
are expressly relieved of
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any and all duty, liability or obligation to Assignor in respect of all
payments so made.
Assignee is hereby vested with full power to use all measures, legal
and equitable, deemed by Assignee to be necessary or proper to enforce this
Assignment and to collect the Rents and Profits. Assignee shall be under no
obligation to press any of the rights or claims assigned to Assignee hereunder,
or, prior to entering into possession and control of the Property, to perform or
carry out any of the obligations of Assignor under any of the Leases and does
not assume any of the liabilities in connection with or arising or growing out
of the covenants and agreements of Assignor in the Leases. It is further
understood that this Assignment shall not operate to place responsibility for
the control, care, management or repair of Assignor's estates or interests in
and to the Property, or parts thereof, upon Assignee, prior to entering into
possession and control of the Property, nor shall it operate to make Assignee
liable, prior to entering into possession and control of the Property, for the
carrying out of any of the terms and conditions of any of the Leases, or, prior
to entering into possession and control of the Property, for any waste to
Assignor's estates or interests in and to the Property by any lessee or
sublessee of Assignor under any leases, or by any occupant of the Property, or
by any party whatsoever or, prior to entering into possession and control of the
Property, for any dangerous or defective condition of the Property or for any
negligence in the management, upkeep, repair or control of Assignor's estates or
interests in and to the Property resulting in loss or injury or death to any
lessee, licensee, employee or any other person. No right shall be exercised by
Assignee under this paragraph until a Revocation Event has occurred.
Assignee hereby agrees to promptly remit to Assignor any amounts
collected hereunder by Assignee which are in excess of those applied to pay in
full the aforesaid liabilities and indebtedness at the time due.
Nothing herein contained is intended to limit or reduce the rights of
Assignee or the obligations of Assignor set forth in the Mortgage, but rather
all of the terms, provisions and conditions of this Assignment are in addition
to and in supplement of such rights and obligations. If any provision contained
in this Assign-
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ment is in conflict with, or inconsistent with, any provision in the
Mortgage, the provision contained in the Mortgage shall govern and control.
Upon the termination of the Debt Documents and the payment in full of
the principal sum, interest and other indebtedness secured thereby or the
defeasance of the indebtedness secured thereby in accordance with the provisions
of Article Nine of the Trust Indenture, this Assignment shall be and become null
and void, and all estate, right, title and interest of Assignee in and to the
Leases shall revert to Assignor and Assignee shall promptly cancel and discharge
of record this Assignment and any financing statement filed in connection
herewith and execute and deliver to Assignor all such instruments as may be
appropriate to evidence such discharge and satisfaction of said Assignment
(provided that Assignee shall have no liability thereunder and all costs and
expenses shall be paid by Assignor); otherwise, this Assignment shall remain in
full force and effect as herein provided, shall inure to the benefit of Assignee
and its successors and assigns and shall be binding upon Assignor, and its
successors and assigns, and any subsequent holder of Assignor's right, title,
interest and estate in and to the Property. In connection with the release of a
portion of the Trust Estate pursuant to Section 1.14 of the Mortgage, Assignee
shall promptly execute and deliver to Assignor all such instruments as may be
necessary, required or appropriate to evidence the release of such portion of
the Trust Estate from this Assignment.
Notwithstanding anything herein or in any other agreement, document,
certificate, instrument, statement or omission referred to below to the
contrary, Section 1.10 of the Mortgage is incorporated herein by reference.
This Assignment shall be governed by and construed in accordance with
the laws of the State of New Jersey, without giving effect to the principles of
conflicts of laws.
This Assignment is subject to and shall be enforced in compliance with
the provisions of the New Jersey Casino Control Act.
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IN WITNESS WHEREOF, Assignor and Assignee have caused this Assignment
to be duly executed, all as of the date first above set forth.
ASSIGNOR:
XXXXX XXX XXXXX ASSOCIATES
By: Xxxxx Atlantic City Corporation, a general partner
Witness: /s/ Xxxx X. Xxxxx By: /s/ Xxxxxxxx X. Xxxxx
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Xxxx X. Xxxxx Name: Xxxxxxxx X. Xxxxx
Title: Vice President
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ASSIGNEE:
U.S. BANK NATIONAL ASSOCIATION, AS COLLATERAL
AGENT
Witness: /s/ Xxxxx Xxxxxxx By: /s/ X. Xxxxxxxxxxxxxx
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Xxxxx Xxxxxxx Name: X. Xxxxxxxxxxxxxx
Title: Vice President
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
BE IT REMEMBERED, that on December 10, 1997, before me, the
subscriber, a Notary Public of the State of New York, personally appeared
Xxxxxxxx X. Xxxxx, to me known, who, being by me duly sworn did depose and
say that he resides at Xxx Xxxxx Xxxx Xxx, Xxxxxxxxxxx, XX 00000; that he is
Vice President of Xxxxx Atlantic City Corporation, which is a general partner of
XXXXX XXX XXXXX ASSOCIATES, the partnership described in and which executed the
above instrument, and he acknowledged that he signed and delivered the same on
behalf of such managing general partner as his voluntary act and deed and as the
voluntary act and deed of said corporation on behalf of said general
partnership, pursuant to authority of the board of directors of said
corporation.
/s/ Xxxxxx Xxxxxxx
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Notary Public
[Notarial Seal]
0
XXXXX XX XXX XXXX )
) ss.:
COUNTY OF NEW YORK )
BE IT REMEMBERED, that on December 10, 1997, before me, the
subscriber, a Notary Public of the State of New York, personally appeared
Xxxxxx X. Xxxxxxxxxxxxxx, to me known, who, being by me duly sworn did depose
and say that he resides at 000 Xxxxx Xxxx Xx., Xxxxxxxxx, XX 00000; that he is
Vice President of U.S. BANK NATIONAL ASSOCIATION, one of the corporations
described in and which executed the above instrument, and he acknowledged that
he signed and delivered the same as his voluntary act and deed and the voluntary
act and deed of said corporation pursuant to authority of its board of
directors, and that he received a true copy of the within instrument on behalf
of said corporation.
/s/ Xxxxxx Xxxxxxx
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Notary Public
[Notarial Seal]
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