INTERCREDITOR AGREEMENT
among
U.S. BANK NATIONAL ASSOCIATION,
as Trustee under the Funding Note Indenture
U.S. BANK NATIONAL ASSOCIATION,
as the Trustee under the TCHI Note Indenture
U.S. BANK NATIONAL ASSOCIATION,
as Trustee under the Mortgage Note Indenture
and
U.S. BANK NATIONAL ASSOCIATION,
as Trustee under the PIK Note Indenture
and consented to by
TRUMP'S CASTLE ASSOCIATES, X.X.
XXXXX'X CASTLE FUNDING, INC., and
TRUMP'S CASTLE HOTEL & CASINO, INC.
Dated as of April 17, 1998
Record and return to:
Xxxxxx Xxxx, Esq.
Ropes & Xxxx
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, XX 00000-0000
INTERCREDITOR AGREEMENT
INTERCREDITOR AGREEMENT, dated as of April 17, 1998, by and among
U.S. BANK NATIONAL ASSOCIATION as Trustee (the "Funding Note Trustee") under a
certain Funding Note Indenture dated as of the date hereof (as the same may from
time to time be amended, supplemented or otherwise modified, the "Funding Note
Indenture") among TRUMP'S CASTLE FUNDING, INC., a New Jersey corporation, as
Issuer ("Funding"), TRUMP'S CASTLE ASSOCIATES, L.P., a New Jersey limited
partnership, as Guarantor (the "Partnership"), and the Funding Note Trustee;
U.S. BANK NATIONAL ASSOCIATION as Trustee (the "TCHI Note Trustee") under a
certain TCHI Note Indenture dated as of the date hereof (as the same may from
time to time be amended, supplemented or otherwise modified, the "TCHI Note
Indenture") among TRUMP'S CASTLE HOTEL & CASINO, INC., a New Jersey corporation,
as Issuer ("TCHI"), the Partnership, as Guarantor and the TCHI Note Trustee;
U.S. BANK NATIONAL ASSOCIATION, as Trustee (the "Mortgage Note Trustee") under a
certain Mortgage Note Indenture dated as of December 28, 1993 (as the same may
from time to time be amended, supplemented or otherwise modified, the "Mortgage
Note Indenture") among Funding, as Issuer, the Partnership, as Guarantor, and
the Mortgage Note Trustee; and U.S. BANK NATIONAL ASSOCIATION, as Trustee (the
"PIK Note Trustee") under a certain PIK Note Indenture dated as of as of
December 28, 1993 (as the same may from time to time be amended, supplemented or
otherwise modified, the "PIK Note Indenture") among Funding, as Issuer, the
Partnership as Guarantor, and the PIK Note Trustee; and consented to by Funding,
TCHI and the Partnership. The Funding Note Trustee and the TCHI Note Trustee are
sometimes referred to together in this Intercreditor Agreement as the "Senior
Notes Trustee" and the Mortgage Note Trustee and the PIK Note Trustee are
sometimes referred to together as the "Subordinated Notes Trustee." U.S. Bank
National Association was previously known as First Bank National Association.
The Partnership was previously known as Trump's Castle Associates, a New Jersey
general partnership. For convenience of reference, First Bank National
Association and Trump's Castle Associates are referred to herein by the names of
their respective successor entities.
WITNESSETH:
WHEREAS, pursuant to an indenture dated as of December 28, 1993
among Funding, as Issuer, the Partnership, as Guarantor, and U.S. Bank National
Association (the "Old Senior Note's Trustee"), as Trustee, Funding issued its
11 1/2% Senior Secured Notes due 2000 ("Old Senior Notes");
WHEREAS, pursuant to the Mortgage Note Indenture, Funding issued its
11 3/4% Mortgage Notes due 2003 (the "Mortgage Notes");
WHEREAS, pursuant to the PIK Note Indenture, Funding issued its
Subordinated Pay-In-Kind Notes due 2005 (the "PIK Notes");
WHEREAS, prior to the date of this Intercreditor Agreement, Funding
and the Partnership were also indebted to Midlantic National Bank ("Midlantic"),
now PNC Bank, N.A. (together with all other obligations and liabilities of
Funding and/or the Partnership to Midlantic, its successors and assigns, the
"Midlantic Obligations"), pursuant to, inter alia, an amended and restated
credit agreement by and among Midlantic, the Partnership and Funding dated as of
December 28, 1993 (as the same may have been amended from time to time);
WHEREAS, pursuant to the Funding Note Indenture, Funding has issued
the $62,000,000 aggregate original principal amount 10 1/4% Series A Senior
Secured Notes due 2003 (together with other debt securities issued in exchange
for or substitution of such notes, the "Funding Notes");
WHEREAS, pursuant to the TCHI Note Indenture, TCHI has issued the
$5,000,000 aggregate principal amount 10 1/4% Series A Senior Secured Notes due
2003 (together with other debt securities issued in exchange for or substitution
of such notes, the "TCHI Notes") (the TCHI Notes and the Funding Notes, together
the "Senior Notes");
WHEREAS, proceeds of the Senior Notes are being used to refinance
and replace the Old Senior Notes and the Midlantic Obligations and to supply
working capital to the Partnership;
WHEREAS, the liens and security interests previously granted to
secure the Midlantic Obligations had been senior to the liens and security
interests granted to secure the then existing Indenture Obligations (as
hereafter defined);
WHEREAS, the liens and security interests previously granted to the
Old Senior Notes Trustee had been senior to the liens and security interests
granted to the Mortgage Notes Trustee;
WHEREAS, purchasers of the Senior Notes have conditioned their
acquisition of the Senior Notes on the Senior Notes having a first priority lien
and security interest in and upon the Trust Estate (as hereafter defined) that
is senior, and not pari passu with or subordinate, to the liens and security
interests in and upon the Trust Estate granted to the Mortgage Note Trustee, but
as between them, the lien and security interest of the Funding Notes and the
TCHI Notes shall be pari passu;
WHEREAS, the PIK Notes were and are to remain unsecured; and
WHEREAS, the Trustees in their various capacities desire to set
forth their relative rights and obligations with respect to the Funding Notes
Indenture, TCHI Notes Indenture, Mortgage Notes Indenture and PIK Notes
Indenture and related matters.
NOW THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby agree as follows:
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SECTION 1. Definitions.
1.1. As used in this Intercreditor Agreement and unless otherwise
expressly indicated, all capitalized words and terms not defined herein shall
have the respective meanings and be construed herein as such words or terms are
defined or construed in the Funding Note Indenture.
1.2. For the purposes of this Intercreditor Agreement, the following
terms shall have the following meanings:
"Indenture Documents" means all instruments, documents and
agreements, executed or delivered pursuant to or in connection with the
Indentures, the Indenture Notes, the Indenture Mortgages and/or the Indenture
Guarantees, as the same may from time to time be amended, supplemented or
otherwise modified.
"Indenture Guarantees" means all guaranties now existing or
hereafter arising executed by the Partnership in favor of any Trustee, as the
same may from time to time be amended, supplemented or otherwise modified.
"Indenture Mortgages" means any and all mortgages and other security
instruments now existing or hereafter arising granted by the Partnership, TCHI
and/or Funding which secures, in whole or in part, directly or indirectly,
through assignment or otherwise, the Indenture Obligations, including, without
limitation, any mortgage granted by the Partnership (i) to Funding or TCHI and
assigned to a Trustee and (ii) to a Trustee to secure any Indenture Guarantee.
"Indenture Notes" means the Funding Notes, the TCHI Notes, the
Mortgage Notes and the PIK Notes, as the same may from time to time be amended,
supplemented or otherwise modified.
"Indenture Obligations" means all indebtedness, obligations and
other liabilities of the Partnership, TCHI and/or Funding to any one or more
Trustees and any and all other Persons pursuant to or arising from the
Indentures, the Indenture Notes, the Indenture Mortgages, the Indenture
Guarantees and the other Indenture Documents (including, without limitation,
indebtedness of the Partnership to Funding or TCHI and assigned to any one or
more Trustees), whether direct or indirect, absolute or contingent, secured or
unsecured, due or to become due, now existing or hereafter arising, including,
without limitation, all interest, fees, charges, costs and expenses (including,
without limitation, reasonable attorneys' fees and disbursements), for which the
Partnership, TCHI, Funding or any other Person is now or hereafter becomes
liable to pay to the Trustee(s) or any other Persons pursuant to any of such
Indenture Documents.
"Indentures" means the Funding Note Indenture, the TCHI Note
Indenture, the Mortgage Note Indenture and the PIK Note Indenture.
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"Senior Notes Indenture Documents" means all instruments, documents
and agreements, executed or delivered pursuant to or in connection with the
Senior Notes Indentures, the Senior Notes, the Senior Notes Indenture Mortgages
and/or the Senior Notes Indenture Guarantees, as the same may from time to time
be amended, supplemented or otherwise modified.
"Senior Notes Indenture Guarantees" means all guaranties now
existing or hereafter arising executed by the Partnership in favor of any
Trustee, as the same may from time to time be amended, supplemented or otherwise
modified.
"Senior Notes Indenture Mortgages" means any and all mortgages and
other security instruments now existing or hereafter arising granted by the
Partnership, TCHI and/or Funding which secure, in whole or in part, directly or
indirectly, through assignment or otherwise, the Senior Notes Indenture
Obligations, including, without limitation, any mortgage granted by the
Partnership (i) to Funding or TCHI and assigned to a Trustee and (ii) to a
Trustee to secure any Senior Notes Indenture Guarantee.
"Senior Notes" means the Funding Notes and the TCHI Notes, as the
same may from time to time be amended, supplemented or otherwise modified.
"Senior Notes Indenture Obligations" means all indebtedness,
obligations and other liabilities of the Partnership, TCHI and/or Funding to any
one or more Trustees and any and all other Persons pursuant to or arising from
the Senior Notes Indentures, the Senior Notes, the Senior Notes Indenture
Mortgages, the Senior Notes Indenture Guarantees and the other Senior Notes
Indenture Documents (including, without limitation, indebtedness of the
Partnership to Funding or TCHI and assigned to any one or more Trustees),
whether direct or indirect, absolute or contingent, secured or unsecured, due or
to become due, now existing or hereafter arising, including, without limitation,
all interest, fees, charges, costs and expenses (including, without limitation,
reasonable attorneys' fees and disbursements), for which the Partnership, TCHI,
Funding or any other Person is now or hereafter becomes liable to pay to the
Trustee(s) or any other Persons pursuant to any of such Senior Notes Indenture
Documents.
"Senior Notes Indentures" means the Funding Note Indenture and the
TCHI Note Indenture.
"Subordinated Notes Indenture Documents" means all instruments,
documents and agreements, executed or delivered pursuant to or in connection
with the Subordinated Notes Indentures, the Subordinated Notes, the Subordinated
Notes Indenture Mortgages and/or the Subordinated Notes Indenture Guarantees, as
the same may from time to time be amended, supplemented or otherwise modified.
"Subordinated Notes Indenture Guarantees" means all guaranties now
existing or hereafter arising executed by the Partnership in favor of any
Trustee, as the same may from time to time be amended, supplemented or otherwise
modified.
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"Subordinated Notes Indenture Mortgages" means any and all mortgages
and other security instruments now existing or hereafter arising granted by the
Partnership, TCHI and/or Funding which secure, in whole or in part, directly or
indirectly, through assignment or otherwise, the Subordinated Notes Indenture
Obligations, including, without limitation, any mortgage granted by the
Partnership (i) to Funding or TCHI and assigned to a Trustee and (ii) to a
Trustee to secure any Subordinated Notes Indenture Guarantee.
"Subordinated Notes" means the Mortgage Notes and the PIK Notes, as
the same may from time to time be amended, supplemented or otherwise modified.
"Subordinated Notes Indenture Obligations" means all indebtedness,
obligations and other liabilities of the Partnership, TCHI and/or Funding to any
one or more Trustees and any and all other Persons pursuant to or arising from
the Subordinated Notes Indentures, the Subordinated Notes, the Subordinated
Notes Indenture Mortgages, the Subordinated Notes Indenture Guarantees and the
other Subordinated Notes Indenture Documents (including, without limitation,
indebtedness of the Partnership to Funding or TCHI and assigned to any one or
more Trustees), whether direct or indirect, absolute or contingent, secured or
unsecured, due or to become due, now existing or hereafter arising, including,
without limitation, all interest, fees, charges, costs and expenses (including,
without limitation, reasonable attorneys' fees and disbursements), for which the
Partnership, TCHI, Funding or any other Person is now or hereafter becomes
liable to pay to the Trustee(s) or any other Persons pursuant to any of such
Subordinated Notes Indenture Documents.
"Subordinated Notes Indentures" means the Mortgage Note Indenture
and the PIK Note Indenture.
"Trust Estate" has the meaning set forth in the habendum to the
Granting Clauses of the Indenture Mortgages.
"Trustee" or "Trustees" shall mean each of the Funding Note Trustee,
the TCHI Note Trustee, the Mortgage Note Trustee and the PIK Note Trustee and
each of their permitted successors and assigns, unless the context requires
reference to one or more but less than all of such Trustees.
1.3. The words "hereof", "herein" and "hereunder" and words of
similar import when used in this Intercreditor Agreement shall refer to this
Intercreditor Agreement as a whole and not to any particular provision of this
Intercreditor Agreement, and section, subsection, schedule and exhibit
references are to this Intercreditor Agreement unless otherwise specified. The
terms defined in this Section and elsewhere include the plural as well as the
singular.
SECTION 2. Lien Priority and Subordination.
2.1. Lien Priority. Each Trustee hereby agrees that any and all
security interests, mortgages, assignments of leases, assignments of operating
assets, other assignments,
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pledges and other liens, charges or encumbrances (including, without limitation,
the Subordinated Indenture Mortgages and the other recorded or filed liens in
favor of the Subordinated Notes Trustee identified on Schedule A to this
Intercreditor Agreement) now existing or hereafter created or arising in its
favor in respect of any of the Subordinated Notes Indenture Obligations are
expressly subordinate, inferior and junior in priority, operation and effect to
any and all security interests, mortgages, assignments of leases, assignments of
operating assets, other assignments, pledges and other liens, charges or
encumbrances (including, without limitation, the Senior Notes Indenture
Mortgages) now existing or hereafter created or arising in favor of any of the
Senior Notes Trustees in respect of the Senior Notes Indenture Obligations,
notwithstanding anything to the contrary contained in any agreement or filing to
which the Partnership, Funding, TCHI or any Trustee may now or hereafter be a
party, and irrespective of the time, order or method of attachment or perfection
of any security interests granted thereby or the time or order of execution,
filing or recording of any mortgages, financing statements or other security
interests, assignments, pledges and other liens, charges or encumbrances. Each
Senior Notes Trustee hereby agrees that any and all security interests,
mortgages, assignments of leases, assignments of operating assets, other
assignments, pledges and other liens, charges or encumbrances, including,
without limitation, the Senior Indenture Mortgages and the other recorded or
filed liens in favor of each Senior Notes Trustee now existing or hereafter
created or arising in its favor in respect of the Senior Notes Indenture
Obligations shall rank pari passu in lien, notwithstanding anything to the
contrary contained in any agreement or filing to which the Partnership, Funding,
TCHI or any Trustee may now or hereafter be a party, and irrespective of the
time, order or method of attachment or perfection of any security interests
granted thereby or the time or order of execution, filing or recording of any
mortgages, financing statements or other security interests, assignments,
pledges and other liens, charges or encumbrances. Any assets (including, without
limitation, any real property(ies)) of Funding, TCHI or the Partnership now or
from time to time hereafter given, granted, assigned, mortgaged, pledged or
otherwise encumbered to secure the Indenture Obligations (collectively, together
with any and all proceeds or products thereof, the "Shared Collateral") shall be
subject to the priority established by the Section 2.1, provided that (i) the
Senior Partnership Note, the Senior Partnership Upstream Note, the Partnership
Note and the Subordinated Partnership Note (as such terms are defined in the
Funding Note Indenture, the TCHI Note Indenture, the, Mortgage Note Indenture
and the PIK Note Indenture, respectively) shall not constitute Shared Collateral
and (ii) nothing in this Intercreditor Agreement is intended to provide rights
in the Shared Collateral as security for any Indenture Obligations not otherwise
vested, granted or authorized in or pursuant to the Indenture applicable to such
Indenture Obligations.
2.2. Proceeds of Shared Collateral. In the event that any one or
more Trustees exercises its respective rights with respect to the Shared
Collateral pursuant to the Indenture Documents, each Trustee shall apply the
proceeds from any sale or sales or other disposition(s), (i) first, to the
reasonable compensation of agents and reasonable fees and expenses of counsel,
(ii) second, any surplus then remaining to the payment in full of the Senior
Notes Indenture Obligations in accordance with the Senior Notes Indenture
Documents, (iii) third, any surplus then remaining to the payment of the
Subordinated Notes Indenture Obligations in accordance with the Indenture
Documents, and (iv) fourth, subject to the rights of the holder of any then
existing Lien of which any Trustee has actual notice, any surplus then remaining
to the
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Partnership or as a court of competent jurisdiction may otherwise direct.
Subject to the rights of the Partnership to apply insurance proceeds or eminent
domain awards to effect Restorations of the Premises, as those terms are defined
in and set forth in the Mortgages, such proceeds and awards are acknowledged to
be Shared Collateral and subject to this Section 2.2.
2.3. Payment. If at any time an Event of Default described in
Section 5.1(a), (b) or (c) of the Senior Notes Indenture (each, a "Payment Event
of Default") occurs and is continuing, or a Senior Notes Trustee has declared
the principal balance of either of the Senior Notes to be due and payable in
full pursuant to Section 5.2 of a Senior Notes Indenture, and shall have given
written notice thereof to the Subordinated Notes Trustee, then no Subordinated
Notes Trustee shall make to the holders of the Subordinated Notes any payments
or interest on or the principal of any of the Subordinated Notes, or to effect
any Redemption of any of the Subordinated Notes or to make open market purchases
of any of the Subordinated Notes (any such payments of interest and/or principal
and any payments to effect any Redemption or make open market purchases being
hereinafter referred to as a "Blocked Payment"). If, notwithstanding the
foregoing, any payment constituting a Blocked Payment is received by any
Subordinated Notes Trustee after the occurrence and during the continuance of a
Payment Event of Default, such payment or distribution received by any such
Trustee shall be held in trust by such Trustee for the benefit of the Senior
Notes Trustee until such time as (i) such Subordinated Notes Trustee receives
written notice from each Senior Notes Trustee that the Payment Event of Default
has been remedied or cured, in which event such Subordinated Notes Trustee shall
be entitled hereunder to distribute the amount of such Blocked Payment to the
holders of the Subordinated Notes in accordance with the applicable Indenture,
(ii) such Subordinated Notes Trustee receives written notices from a Senior
Notes Trustee of the occurrence of an Event of Default described in Section
5.1(h) or (i) of a Senior Notes Indenture (each a "Bankruptcy Event of
Default"), in which event such payment shall be paid to a Senior Notes Trustee
or as a court of competent jurisdiction may direct in a final and non-appealable
order, and to the extent paid to or for the benefit of a Senior Notes Trustee
shall be deemed for purposes of this Intercreditor Agreement to be proceeds of
Shared Collateral, or (iii) such Trustee receives written notice from a Senior
Notes Trustee that a Senior Notes Trustee has accelerated the stated maturity of
the Senior Notes Indenture Obligations and/or is exercising any other rights or
remedies with respect to any Payment Event of Default, in which event such
payment shall be paid over to a Senior Notes Trustee and shall be deemed for
purposes of this Intercreditor Agreement to be proceeds of Shared Collateral.
For the purposes of this Section 2.3, each Subordinated Notes Trustee shall
conclusively presume that a Payment Event of Default has occurred simultaneously
(i) with the occurrence of a default described in Section 5.1(a), (b) or (c) of
a Subordinated Notes Indenture, whether or not a Senior Notes Trustee has given
notice of same to Funding, TCHI, the Partnership or to any Trustee; and (ii)
upon a default under Section 5.1(a) of a Senior Notes Indenture, so long as a
Senior Notes Trustee has given notice of the same to the Subordinated Notes
Trustees, whether or not the thirty (30) day period has passed. The Funding
Notes and the TCHI Notes and all Senior Notes Obligations arising under or
pursuant to the Funding Notes Indenture and the TCHI Notes Indenture shall rank
pari passu in right of payment.
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2.4. Exercise of Remedies. Nothing in this Intercreditor Agreement
shall prevent at any time any Trustee from exercising or refraining in its sole
discretion from the exercise of any rights or remedies available to it under
this Intercreditor Agreement or any Indenture Documents, provided that (i) all
remedies exercised by any Trustee in respect of any Shared Collateral shall be
exercised in accordance with paragraphs 2.1, 2.2 and 2.3 of this Section 2.
SECTION 3. Intentionally omitted.
SECTION 4. Representations and Warranties. Each Trustee hereby represents and
warrants to each other of the Trustees that:
(a) Corporate Existence. The Trustee is a national banking
association duly organized, validly existing and in good standing under the laws
of the United States.
(b) Power and Authority. The Trustee has full power, authority and
legal right to execute, deliver and perform this Intercreditor Agreement. The
execution and delivery of this Intercreditor Agreement by the Trustee and the
performance or observance of each of the obligations of the Trustee hereunder
have been duly authorized by all necessary action on the part of the Trustee.
(c) Enforceable Obligations. This Intercreditor Agreement has been
duly executed and delivered by the Trustee and constitutes a legal, valid and
binding obligation of the Trustee, enforceable against it in accordance with its
terms.
(d) Consents, Approvals, Authorizations, etc. No consent, approval,
order or authorization of or registration, declaration or filing with any
Governmental Authority or any other Person is required in connection with the
valid execution and delivery by the Trustee of this Intercreditor Agreement or
the carrying out or performance by the Trustee of any of the transactions
required or contemplated hereby.
(e) No Legal Bar. The execution and delivery of this Intercreditor
Agreement by the Trustee, and the performance by the Trustee of its obligations
hereunder, will not violate any Legal Requirements affecting the Trustee.
(f) No Transfer or Subordination. The Trustee has not (i) sold,
assigned or otherwise transferred, in whole or in part, any of the Indenture
Obligations, any interest therein or any collateral security or guaranty
therefor to any other Person or (ii) made, given or permitted any currently
effective subordination or postponement in respect of the Indenture Obligations
or any Shared Collateral, except as provided herein.
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SECTION 5. Negative Covenants of the Trustees.
5.1. Until each Senior Notes Indenture Obligations are indefeasibly
paid in full, each Trustee agrees not to, directly or indirectly:
(a) take, demand or receive from the Partnership, TCHI or Funding,
by setoff, Redemption, purchase or in any other manner, any payment in respect
of the Indenture Obligations, contrary to or in violation of the terms of this
Intercreditor Agreement;
(b) enter into any amendment or modification of, or supplement to,
any Indenture or any other Indenture Document which would contravene the
provisions of Section 10.21 of the Senior Notes Indentures;
(c) accept any payment or distribution made by or on behalf of the
Partnership, TCHI or Funding that the Partnership, TCHI or Funding is prohibited
from making under any of the Indenture Documents; or
(d) accelerate the indebtedness under its Indenture without giving
each Senior Notes Trustee at least two prior business days notice of such
acceleration.
SECTION 6. Waivers, etc.
6.1. Each of the Trustees hereto consents to and agrees with the
other Trustees that, without the necessity of any reservation of rights against
any other party and without notice to or further assent by any other party,
subject to the provisions of Section 2.1, 2.2 and 5.1 hereof, (a) any demand for
payment of any Indenture Obligation may be rescinded in whole or in part, and
any Indenture Obligation may be continued, and the Indenture Obligations, or the
liability of Funding, TCHI, the Partnership or any other Person upon or for any
part thereof, or any collateral security or guaranty therefor or right of offset
with respect thereto, or any obligation or liability of Funding, TCHI the
Partnership or any other Person thereunder or with respect thereto may, from
time to time, in whole or in part, be renewed, extended, modified, accelerated,
compromised, waived, surrendered or released (it being acknowledged that the
foregoing is subject, in the case of any Shared Collateral, to the provisions of
Section 2 hereof), and (b) the Indenture Documents, and any other documents,
instruments or agreements evidencing or governing the terms of the Indenture
Obligations or any collateral security documents or guaranties or documents in
connection therewith, may be amended, modified, supplemented or terminated, in
whole or in part, as the parties thereto may deem advisable from time to time,
except as otherwise expressly set forth therein, and any collateral security at
any time held by any Trustee from the payment of any of any Indenture
Obligations, respectively, may be sold, exchanged, waived, surrendered or
released, in each case all without notice to or further assent by any other
party hereto, each of which will remain bound under this Intercreditor
Agreement, and all without impairing, releasing or affecting the lien priority
or other provisions herein, notwithstanding any such renewal, extension,
modification, acceleration, compromise, amendment, supplement, termination,
sale, exchange, waiver, surrender or release,
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subject in each case to the provisions of this Intercreditor Agreement. The
Trustees hereby waive any and all notice of the creation, renewal, extension or
accrual of any of the Indenture Obligations and notice of or proof of reliance
by the Trustees upon this Intercreditor Agreement and the Senior Notes Indenture
Obligations shall conclusively be deemed to have been created, contracted or
incurred in reliance upon this Intercreditor Agreement.
6.2. Each Trustee hereby acknowledges and confirms to each other
Trustee that:
(a) No Trustee has made any representations or warranties as to any
matter which may affect or in any way related to the financial condition,
relationships or transactions of Funding, TCHI, the Partnership or any other
Person, including, without limitation, the business, assets, liabilities, type
or value of any security therefor, financial condition, management or control of
Funding, TCHI, the Partnership or any other Person; and
(b) Except as expressly provided herein, no Trustee is obligated to
notify any other Trustee or any other Person of any change in the business,
assets, liabilities, type or value of any security therefor, financial
condition, management or control of Funding, TCHI, the Partnership or of any
other Person; and
(c) The failure by a Trustee to obtain, perfect or realize upon any
security for any of the Indenture Obligations or the indebtedness, obligations
or liabilities of any other Person, shall not release or otherwise impair any of
the obligations of the other Trustees hereunder.
SECTION 7. Term and Termination.
This Intercreditor Agreement shall constitute from and after the
date hereof a continuing agreement and shall remain in effect until the
Indenture Obligations are indefeasibly paid and performed in full without
contravention of Section 2.2 or Section 5.1 hereof and the Indenture Mortgages
and any other document evidencing any mortgage, security interest or any other
lien or encumbrance in favor of any Trustee which are a matter of public record.
This Intercreditor Agreement, including without limitation, the lien priority
and other provisions hereof shall remain in effect, notwithstanding any
proceeding instituted by or against the Partnership, TCHI and/or Funding seeking
to adjudicate it a bankrupt or insolvent, or seeking liquidation, winding up,
reorganization, arrangement, adjustment, protection, relief or composition of
the Partnership, TCHI and/or Funding or its respective debts under any law
related to bankruptcy, insolvency or reorganization or relief or protection of
debts, or seeking the entry of an order for relief or the appointment of a
receiver, trustee, custodian or other similar official for the Partnership, TCHI
and/or Funding or any substantial part of its property or assets.
SECTION 8. Remedies and Cooperation.
Each party hereby acknowledges that the other parties shall have no
adequate remedy at law if a party violates any of the terms of provisions
hereof. In such event, each other
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party shall have the right, in addition to any and all other rights and remedies
as may be available under applicable law, to obtain in any court of competent
jurisdiction injunctive relief to restrain any such party from any breach or
threatened breach of this Intercreditor Agreement or otherwise to specifically
enforce any of the terms or provisions hereof.
SECTION 9. Concerning the Trustees.
9.1. Each Trustee (which, for the purposes of this Intercreditor
Agreement includes each separate trustee appointed with such authority pursuant
to each Indenture) undertakes to perform such duties and only such duties are
specifically set forth in this Intercreditor Agreement as assigned to such
Trustee. No implied covenants or obligations shall be read into this
Intercreditor Agreement against any Trustee.
9.2. In the absence of bad faith on its part, each may conclusively
rely, as to the truth of the statements and the correctness of the opinions
expressed therein, upon certificates or opinions furnished to such Trustee and
conforming to the requirements of this Intercreditor Agreement; but in the case
of any such certificates or opinions which by any provision hereof are
specifically required to be furnished to any Trustee, such Trustee shall be
under a duty to examine the same to determine whether or not they conform to the
requirements of this Intercreditor Agreement.
9.3. Each Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
coupon or other paper or document believed by it to be genuine and to have been
signed or presented by the proper party or parties.
9.4. Whenever in the administration of this Intercreditor Agreement
any Trustee shall deem it desirable that a matter be proved or established prior
to taking, suffering or omitting any action hereunder, such Trustee (unless
other evidence be herein specifically prescribed) may, in the absence of bad
faith on its part, rely upon an Officers' Certificate.
9.5. Each Trustee may consult with counsel, and the 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 such Trustee hereunder in good faith and in reliance thereon.
9.6. No Trustee shall 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, bond, debenture or
other paper or document.
9.7. No provision of this Intercreditor Agreement shall be construed
to relieve any Trustee from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except that no Trustee
shall be liable for any error of judgment made in good
-11-
faith by a responsible officer, unless it shall be proved that such Trustee was
negligent in ascertaining the pertinent facts.
9.8. No provision of this Intercreditor Agreement shall require any
Trustee to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in the exercise
of any of its rights or powers, if it shall have reasonable grounds for
believing that, under the terms of the applicable Indenture or otherwise,
repayment of such funds or adequate indemnity against such risk or liability is
not reasonable assured to it.
9.9. Each Trustee may execute any of its rights or powers hereunder
or perform any of its duties hereunder either directly or by or through agents
or attorneys, and such Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder.
SECTION 10. Miscellaneous.
10.1. No failure to exercise, and no delay in exercising, on the
part of any party hereto from time to time of any right, power or privilege
under this Intercreditor Agreement or any documents securing and/or evidencing
the Indenture Obligations shall operate as a waiver thereof; nor shall any
single or partial exercise of any right, power or privilege under this
Intercreditor Agreement or any other such document preclude any other or further
exercise thereof or the exercise of any other right, power or privilege. The
rights and remedies provided in this Intercreditor Agreement and in any
agreement relating to any of the Indenture Obligations and all other agreements,
instruments and documents referred to in any of the foregoing are cumulative and
shall not be exclusive of any rights or remedies provided by law.
10.2. Each party hereto agrees to execute and deliver such further
documents and to do such other acts and things as any other party may reasonably
request in order fully to effect the purposes of this Intercreditor Agreement.
10.3. Any request, demand, authorization, direction, notice
(including, without limitation, a notice of default), consent, waiver or other
document provided or permitted by this Intercreditor Agreement to be made upon,
given or furnished to, or filed with any Trustee, Funding, TCHI or the
Partnership shall be deemed given when either (i) delivered by hand or by
Federal Express or other similar overnight courier or (ii) three Business Days
after sending by registered or certified mail, postage prepaid; in either case
addressed as follows:
To the Trustees (one such notice shall constitute sufficient notice
to the each of the Trustees hereunder, unless the same Person is not the Trustee
under each Indenture)):
U.S. Bank National Association
000 Xxxx Xxxxx Xxxxxx
Xx. Xxxx, Xxxxxxxxx 00000
Attention: Corporate Trust Administration
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To the Partnership and TCHI:
Trump's Castle Associates, L.P.
Xxxxx Xxxxxx Hotel Casino
Brigantine Boulevard at Xxxxx Xxxxxx
Xxxxxxxx Xxxx, Xxx Xxxxxx 00000
Attention: Chief Executive Officer
To Funding:
Trump's Castle Funding, Inc.
Xxxxx Xxxxxx Hotel Casino
Brigantine Boulevard at Xxxxx Xxxxxx
Xxxxxxxx Xxxx, Xxx Xxxxxx 00000
Attention: Treasurer
with, in each case, a copy sent by the same method
to:
Xxxxx Hotels & Casino Resorts Holdings, L.P.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx X. Xxxxx
Xxxxxxx Xxxx & Xxxxxxxxx (prior to May 26, 1998)
One Citicorp Center
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxx, Esq.
Xxxxxxx Xxxx & Xxxxxxxxx (after May 26, 1998)
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxx X. Xxxxxx, Esq.
Ropes & Xxxx
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000-0000
Attention: Xxxxxx X. Xxxx, Esq.
By notice given as provided above, each Trustee, Funding, TCHI or
the Partnership may designate additional or substitute addresses for such
notices, which, notwithstanding the provisions of clause (ii) of this Section
9.3, shall be deemed given when received.
-13-
If any Trustee commences foreclosure or other proceedings for sale
of any Shared Collateral then the foreclosing party agrees to give the other
copies of notices at the same time and by substantially the same method the
foreclosing party provides any such notice to the Partnership, TCHI or Funding.
10.4. No amendment or waiver of any provision of this Intercreditor
Agreement nor consent to any departure by any party herefrom, shall in any event
be effective unless the same shall be in writing and signed by such party, and
then such waiver or consent shall be effective only in the specific instance and
for the specific purpose for which given.
10.5. This Intercreditor Agreement may be executed by the parties
hereto in any number of separate counterparts all of which taken together shall
constitute one and the same instrument.
10.6. This Intercreditor Agreement, and the rights and obligations
of the parties hereunder, shall be governed by, and construed and interpreted in
accordance with, the laws of the State of New Jersey (without giving effect to
principles of choice of law). Each Trustee hereby submits itself for the sole
purpose of this Intercreditor Agreement and any controversy arising hereunder to
the nonexclusive jurisdiction of the federal and state courts located in the
State of New Jersey, and waives any objection (on the grounds of lack of
jurisdiction or forum non conveniences, or otherwise) to jurisdiction over it by
any federal or state court in the State of New Jersey.
10.7. This Intercreditor Agreement is solely for the benefit of the
parties hereto and their respective successors and assigns, and no other Person
shall have any right, benefit, priority or interest under, or because of the
existence of, this Intercreditor Agreement.
10.8. The agreements of the Trustees hereunder are made solely in
its capacity as Trustee under each of the Indentures, and shall bind, and inure
to the benefit of, the holders of the Notes.
10.9. Any successor Trustee under any Indenture shall be deemed to
be and shall be bound by this Intercreditor Agreement.
10.10. This Intercreditor Agreement may be executed in counterparts,
each of which together shall constitute one and the same document.
10.11. The Recitals constitute an integral part of this
Intercreditor Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this
Intercreditor Agreement to be duty executed and delivered by their proper and
duly authorized officers as of the day and year first above written.
U.S. BANK NATIONAL ASSOCIATION,
as Trustee under the Funding Note Indenture
Witness: /s/ Xxxx X. Xxxxxxx By: /s/ Xxxxxxx X. Xxxxxxxx
----------------------- ----------------------------------------
Name: Xxxx X. Xxxxxxx Xxxxxxx X. Xxxxxxxx
Assistant Vice President
U.S. BANK NATIONAL ASSOCIATION,
as Trustee under the TCHI Note Indenture
Witness: /s/ Xxxx X. Xxxxxxx By: /s/ Xxxxxxx X. Xxxxxxxx
----------------------- ----------------------------------------
Name: Xxxx X. Xxxxxxx Xxxxxxx X. Xxxxxxxx
Assistant Vice President
U.S. BANK NATIONAL ASSOCIATION,
as Trustee under the Mortgage Note
Indenture
Witness: /s/ Xxxx X. Xxxxxxx By: /s/ Xxxxxxx X. Xxxxxxxx
----------------------- ----------------------------------------
Name: Xxxx X. Xxxxxxx Xxxxxxx X. Xxxxxxxx
Assistant Vice President
U.S. BANK NATIONAL ASSOCIATION,
as Trustee under the PIK Note Indenture
Witness: /s/ Xxxx X. Xxxxxxx By: /s/ Xxxxxxx X. Xxxxxxxx
----------------------- ----------------------------------------
Name: Xxxx X. Xxxxxxx Xxxxxxx X. Xxxxxxxx
Assistant Vice President
-00-
XXXXX XX XXX XXXX )
) 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
Xxxxxxx Xxxxxxxx, an assistant vice president of U.S. BANK NATIONAL ASSOCIATION,
a national banking association, the Trustee under a certain Funding Note
Indenture, 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 authority of its
board of directors.
/s/ Xxxxx X. Xxxxxxx
--------------------------------------
Notary Public of the State of New York
[Seal]
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
Xxxxxxx Xxxxxxxx, an assistant vice president of U.S. BANK NATIONAL ASSOCIATION,
a national banking association, the Trustee under a certain TCHI Note Indenture,
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 authority of its board of directors.
/s/ Xxxxx X. Xxxxxxx
--------------------------------------
Notary Public of the State of New York
[Seal]
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
Xxxxxxx Xxxxxxxx, an assistant vice president of U.S. BANK NATIONAL ASSOCIATION,
a national banking association, the Trustee under a certain Mortgage Note
Indenture, 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 authority of its
board of directors.
/s/ Xxxxx X. Xxxxxxx
Notary Public of the State of New York
[Seal]
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
Xxxxxxx Xxxxxxxx, an assistant vice president of U.S. BANK NATIONAL ASSOCIATION,
a national banking association, the Trustee under a certain PIK Note Indenture,
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 authority of its board of directors.
/s/ Xxxxx X. Xxxxxxx
--------------------------------------
Notary Public of the State of New York
[Seal]
CONSENT AND AGREEMENT
The undersigned hereby acknowledge notice of, and consent to the terms and
provisions of, the foregoing Intercreditor Agreement. The undersigned waive
notice of acceptance of this Intercreditor Agreement by any Trustee and hereby
agree that:
(a) no further act or deed shall be required of the undersigned in order
to accomplish the purposes and carry out the intent of the Intercreditor
Agreement, and the undersigned agree not to take any action contrary to or
inconsistent with any of the terms of provisions thereof;
(b) from time to time, at their own expense, the undersigned will promptly
execute and deliver all further instruments and documents, and take all further
action that may be reasonably necessary in order to accomplish the purposes and
carry out the intent of the Intercreditor Agreement and;
(c) upon the occurrence and continuation of a Payment Event of Default,
the undersigned shall not make any payment to any Subordinated Notes Trustee
which would constitute a Blocked Payment, but instead shall pay directly to a
Senior Notes Trustee, for application on account of the Senior Notes Indenture
Obligations until the same are indefeasibly paid in full, any such payment
which, but for the provisions of the Intercreditor Agreement the undersigned
would have made to any Subordinated Notes Trustee.
The undersigned further agree that from and after the indefeasible payment
in full of the Senior Notes Indenture Obligations, and so long as the Senior
Notes Trustee shall not incur any liability arising out of the provisions of
this paragraph, the holders of the Subordinated Notes Indenture Obligations
shall, to the extent of any Blocked Payment which was paid to a Senior Notes
Trustee in accordance with the Intercreditor Agreement, be subrogated to the
then or thereafter rights of the holders of the Senior Notes Indenture
Obligations to receive payments or distributions of assets of the Partnership,
TCHI and/or Funding made on the Senior Notes Indenture Obligations until all
liabilities in respect of the Subordinated Notes Indenture Obligations shall be
paid in full; and, for the purposes of such subrogation, no payments or
distributions to the holders of the Senior Notes Indenture Obligations of any
cash, property or securities to which the holders of the Subordinated Notes
Indenture Obligations would be entitled except for the provisions of Section 2.2
of the Intercreditor Agreement shall, and no payment over pursuant to the
provisions of said Section 2.2 to the holders of Senior Notes Indenture
Obligations by any Trustee shall, as between the Partnership, TCHI or Funding,
their creditors (other than the holders of the Senior Notes Indenture
Obligations) and the holders of the Indenture Obligations, be deemed to be a
payment by the Partnership, TCHI or Funding to or on account of Senior Notes
Indenture Obligations, it being understood that the provisions of said Section
2.2 are and are intended solely for the purposes of defining the relative rights
of the holders of the Subordinated Notes Indenture Obligations, on the one hand,
and the holders of the Senior Notes Indenture Obligations, on the other hand.
None of such provisions shall impair, as between the Partnership, TCHI or
Funding and any holder of Subordinated Notes Indenture Obligations, the
obligations of the Partnership, TCHI and/or Funding, which are
-16-
unconditional and absolute, to pay to such holders of Subordinated Notes
Indenture Obligations the full amount thereof, nor shall any such provisions
prevent any holder of Subordinated Notes Indenture Obligations from exercising
all rights, powers and remedies otherwise permitted by applicable law or under
the terms of the Subordinated Notes Indenture Documents upon a default
thereunder, subject to the rights under Section 2.2 of the Intercreditor
Agreement of holders of the Senior Notes Indenture Obligations. The Partnership,
TCHI and Funding hereby agree that, during any period in which they are not
permitted to make any payment to any Trustee by virtue of the provisions of the
Intercreditor Agreement, any applicable statute of limitations shall be tolled.
This consent shall become effective on the date hereinbelow set forth, and
shall be binding upon the undersigned and their respective successors and
assigns. Capitalized terms used in this consent and not defined herein shall
have the meaning for such terms set forth in the Intercreditor Agreement. The
miscellaneous provisions of the Intercreditor Agreement are applicable to this
consent.
TRUMP'S CASTLE ASSOCIATES. L.P.
By: Trump's Castle Hotel & Casino,
Witness: Inc., its general partner
/s/ Xxxxx Xxxxxxx By: /s/ Xxxxxxxx X. Xxxxx
-------------------- ---------------------------------
Name: Xxxxx Xxxxxxx Xxxxxxxx X. Xxxxx
President and Chief Executive
Officer
Witness: TRUMP'S CASTLE FUNDING, INC.
/s/ Xxxxx Xxxxxxx By: /s/ Xxxxxxxx X. Xxxxx
-------------------- ---------------------------------
Name: Xxxxx Xxxxxxx Xxxxxxxx X. Xxxxx
President and Chief Executive
Officer
Witness: TRUMP'S CASTLE HOTEL & CASINO, INC.
/s/ Xxxxx Xxxxxxx By: /s/ Xxxxxxxx X. Xxxxx
-------------------- ---------------------------------
Name: Xxxxx Xxxxxxx Xxxxxxxx X. Xxxxx
President and Chief Executive
Officer
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
XXXXXXXX X. XXXXX, the 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 company made by
virtue of authority of its board of directors.
/s/ Xxxxxx Xxxxxxx
--------------------------------------
Notary Public of the State of New York
[Seal]
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
XXXXXXXX X. XXXXX, the 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
company made by virtue of authority of its board of directors.
/s/ Xxxxxx Xxxxxxx
--------------------------------------
Notary Public of the State of New York
[Seal]
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
XXXXXXXX X. XXXXX, the Chief Executive Officer of TRUMP'S CASTLE HOTEL & CASINO,
INC., who I am satisfied is the person who executed the within instrument, and
he acknowledged that he signed and delivered the same as such officer on behalf
of such entity and that the within instrument is the voluntary act and deed of
said company made by virtue of authority of its board of directors.
/s/ Xxxxxx Xxxxxxx
--------------------------------------
Notary Public of the State of New York
[Seal]
SCHEDULE A
SUBORDINATED LIENS AND ENCUMBRANCES
1. Indenture of Mortgage and Security Agreement from Trump's Castle
Associates, a New Jersey general partnership to Trump's Castle Funding,
Inc., a New Jersey corporation, dated as of December 28, 1993, and
recorded December 29,1993 in mortgage book 5238, page 1 ($242,141,304.00
Note Mortgage).
Assignment Agreement from Trump's Castle Funding, Inc., a New Jersey
corporation, to First Bank National Association as Trustee, dated as of
December 28, 1993, and recorded December 29, 1993 in assignment book 651,
page 160.
Financing Statement from Trump's Castle Associates (Debtor) to Trump's
Castle Funding, Inc., assigned to First Bank National Association, filed
December 29, 1993 as #0014654.
2. Indenture of Mortgage and Security Agreement from Trump's Castle
Associates, a New Jersey general partnership to First Bank National
Association as Trustee, dated as of December 28, 1993, and recorded
December 29, 1993 in mortgage book 5239, page 1 ($242,141,304.00 Guarantee
Mortgage).
Financing Statement from Trump's Castle Associates (Debtor) to First Bank
National Association as Trustee, filed December 29, 1993 as #0014657.
