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SENIOR ASSIGNMENT AGREEMENT
dated as of April 17, 1998
by
TRUMP'S CASTLE FUNDING, INC.,
a New Jersey corporation, as Assignor
to
U.S. BANK NATIONAL ASSOCIATION,
as Trustee under the Senior Note Indenture, as Assignee
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Record and Return to:
Xxxxxx X. Xxxx, Esq.
Ropes & Xxxx
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
(000) 000-0000
SENIOR ASSIGNMENT AGREEMENT
This SENIOR ASSIGNMENT AGREEMENT (the "Senior Assignment") is dated as of
April 17, 1998 from TRUMP'S CASTLE FUNDING, INC., a New Jersey corporation
("Assignor"), to U.S. BANK NATIONAL ASSOCIATION, a national banking association,
as Trustee under the Senior Note Indenture, as defined below ("Assignee").
W I T N E S S E T H:
WHEREAS, Assignor, a wholly-owned subsidiary of Trump's Castle Associates,
L.P. a New Jersey limited partnership (the "Partnership"), functions as the
Partnership's financing vehicle for advancing to the Partnership the proceeds of
various issues of Assignor's debt securities against receipt of the
Partnership's promissory notes, secured by a mortgage upon the Partnership's
assets; and
WHEREAS, Assignor has issued and sold $62,000,000 aggregate principal
amount of its 10 1/4% Senior Secured Notes due 2003 (the "Senior Notes"),
pursuant to the provisions of an Indenture (the "Senior Note Indenture") of even
date herewith entered into among the Assignor, as issuer, the Partnership, as
guarantor, and Assignee, as trustee, and has loaned said proceeds to the
Partnership, its parent, in exchange for the Partnership's note in the principal
amount of $62,000,000 (the "Senior Partnership Note") which is secured by an
Indenture of Mortgage and Security Agreement (the "Senior Note Mortgage") of
even date herewith, between the Partnership, as mortgagor, and the Assignor, as
mortgagee;
WHEREAS, the Partnership and the Assignor have entered into an Assignment
of Leases and Rents and Assignment of Operating Assets of even date herewith
(the "Senior Assignment of Leases"); and
WHEREAS, certain terms defined in the Senior Note Indenture are used
herein with the meanings there provided.
NOW, THEREFORE, THIS SENIOR ASSIGNMENT
FURTHER WITNESSETH:
Assignor, for good and valuable consideration, the receipt of which is
hereby acknowledged, does hereby sell, assign and transfer unto Assignee and
unto its successors and to its assigns forever, for its benefit and for the
benefit of the Holders, and does hereby grant to Assignee a security interest in
and to all of Assignor's estate, right, title and interest in, to and under any
and all of the following described property, rights and interests (collectively,
the "Assigned Properties"):
GRANTING CLAUSE FIRST
All right, title and interest of Assignor in and to the Senior Partnership
Note, including all renewals, extensions and modifications of the same, and,
without limiting the generality of the foregoing, the present, continuing and
future right to make claim for, collect or cause to be collected, receive or
cause to be received directly from the Partnership thereunder, all payments of
principal, interest and other sums of money payable thereunder.
GRANTING CLAUSE SECOND
All right, title and interest of Assignor in and to the Senior Note
Mortgage, including all extensions, renewals and modifications of the same.
GRANTING CLAUSE THIRD
All right, title and interest of Assignor in and to the Senior Assignment
of Leases, including all extensions, renewals and modifications of the same.
TO HAVE AND TO HOLD all of said properties, rights and interests unto
Assignee and its successors and assigns forever.
THIS SENIOR ASSIGNMENT FURTHER WITNESSETH, that Assignor hereby agrees and
covenants with Assignee as follows:
ARTICLE I
PARTICULAR COVENANTS OF ASSIGNOR
Section 1.01. Performance of Covenants. Assignor represents, warrants and
covenants that it is duly authorized to enter into this Senior Assignment, and
to grant and convey a lien on and security interest in the Assigned Properties
to Assignee in the manner and to the extent herein set forth and that all action
on its part required for the execution and delivery of this Senior Assignment
has been duly and effectively taken.
Section 1.02. Further Action Required.
(a) Assignor covenants that it will, from time to time, execute and
deliver such further instruments and take such further actions as may be
reasonably required to carry out the purposes of this Senior Assignment.
(b) Assignor hereby appoints Assignee as its lawful attorney-in-fact (such
power being coupled with an interest) in the name of Assignor or Assignee or
both to execute any instruments
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or to take any actions to enforce all rights, powers and remedies of Assignor
under or pursuant to the Assigned Properties.
(c) Nothing contained herein shall limit the rights of Assignee contained
in the Mortgage Notes, the Mortgage Note Indenture, the Senior Notes, the Senior
Note Indenture, the TCHI Notes or the TCHI Note Indenture.
ARTICLE II
OBLIGATIONS OF ASSIGNEE
Section 2.01. Continuing Obligations.
(a) Assignee shall have no obligation, duty or liability with respect to
the Assigned Properties or any of them (other than those specifically assumed in
its capacity as Trustee pursuant to the Senior Note Indenture).
(b) Assignor shall at all times remain liable to observe and perform all
of its covenants and obligations, if any, under the Assigned Properties, and
does hereby agree to indemnify and hold harmless Assignee, its successors and
assigns, from any liability, loss, damage or expense it or they may incur under
the Assigned Properties or by reason of this Senior Assignment.
ARTICLE III
PAYMENTS
Section 3.01. Payments. All Revenues (as hereinafter defined) due and to
become due under or pursuant to the Assigned Properties shall be paid by the
Partnership directly to Assignee at the address set forth in Section 6.02
hereof.
Section 3.02. Acknowledgment. The Partnership hereby joins in the
execution of this Senior Assignment to acknowledge (i) the assignment by
Assignor to Assignee of Assignor's right, title and interest in, to and under
the Assigned Properties, (ii) the Partnership's agreement to make payment of all
Revenues under the Assigned Properties directly to Assignee at the address set
forth in this Senior Assignment, and (iii) the right of Assignee to exercise or
enforce in its own name, in the name of Assignor, or both, all of the rights,
powers and remedies of Assignor in, to and under the Assigned Properties.
Section 3.03. Revenues. As used herein, the term "Revenues" shall mean (a)
all amounts paid or payable by the Partnership under the Senior Partnership
Note, the Senior Note Indenture, or the Senior Note Mortgage, and (b) the net
proceeds realized upon or as a result of the
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enforcement of any mortgage lien, security interest or assignment of leases
granted or assigned under the Assigned Properties or this Senior Assignment or
upon or as a result of the exercise of any right or remedy under the Assigned
Properties or this Senior Assignment.
Section 3.04. Confirmation. Assignor hereby agrees, and the Partnership
hereby acknowledges, that the Partnership may rely exclusively on Assignee's
directive that Assignee is entitled to take action under this Senior Assignment.
ARTICLE IV
DEFAULT PROVISIONS AND REMEDIES
Section 4.01. Enforcement of Remedies.
(a) Upon the occurrence and continuance of any Event of Default (as such
term is defined in the Senior Note Indenture or the Senior Note Mortgage; each
an "Event of Default"), Assignee may (upon the direction of the Holders or, if
the rights of the Holders would be prejudiced by any delay in taking such
action, without the direction of the Holders), at its option, (i) proceed
directly to protect and enforce its rights and the rights of any Holders under
this Senior Assignment or pursuant to the Assigned Properties, or any one of
them, by such suits, actions or special proceedings in equity or at law, or by
proceedings in the office of any board or officer having jurisdiction, either
for the specific performance of any covenant or agreement contained herein, or
in the Assigned Properties, or any of them, or in aid of execution of any power
granted herein or pursuant to the Assigned Properties, or any one of them, or
for the enforcement of any proper legal or equitable remedy, including, without
limitation, foreclosure of the Senior Note Mortgage and/or the sale of the
collateral or any part thereof secured thereby at such foreclosure sale, subject
to statutory and other legal requirements, as Assignee shall deem most effective
to protect and enforce such rights, and Assignor hereby appoints Assignee as its
lawful attorney-in-fact (such power being coupled with an interest) in the name
of Assignor or Assignee or both to effectuate such foreclosure and/or sale of
such collateral or part thereof; or (ii) instruct, direct and cause Assignor to
effectuate the foregoing on behalf of and for the benefit of Assignee and the
Holders, it being further understood that the Partnership joins in the execution
of this Senior Assignment in order to acknowledge its agreement to promptly and
duly execute and deliver any and all documents and take any and all actions
required by Assignee in order to permit Assignee to foreclose and/or sell such
collateral or part thereof, and obtain the benefits of this Senior Assignment,
as aforesaid.
(b) Upon the occurrence and continuance of any such Event of Default,
Assignee shall (upon the direction of the Holders or, if the rights of the
Holders would be prejudiced by any delay in taking such action, without the
direction of the Holders) be entitled to xxx for, enforce payment of and receive
any and all amounts then and at any time remaining due from Assignor or the
Partnership for principal and interest on the Senior Partnership Note, or other
sums due under the Senior Note Mortgage or the Senior Note Indenture, as the
case may be, or otherwise
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under any of the provisions of the Assigned Properties, or any of them, in any
of such events with interest on overdue payments of such principal, as set forth
in the Senior Partnership Note, from the date of such Event of Default to the
date of such payment, together with any and all fees, costs and expenses of
collection (including reasonable attorneys' fees and court costs), subject to
statutory and other legal requirements.
(c) Regardless of the occurrence of an Event of Default, Assignee may
institute and maintain or cause in the name of Assignor or Assignee or both to
be instituted and maintained such suits and proceedings as Assignee may be
advised by its counsel shall be necessary and appropriate to prevent any
impairment of the Assigned Properties, or any of them, and to protect its
interests in the Assigned Properties, and in the rents, issues, rights, revenues
and other income arising therefrom, including power to institute and maintain
proceedings to restrain the enforcement or compliance with any governmental
enactment, rule or order that may be unconstitutional or otherwise invalid, if
the enforcement of or compliance with such enactment, rule or order would impair
the security hereunder or would be materially prejudicial to the interest of the
Assignee.
(d) Nothing contained in this Article IV is intended to grant Assignee any
greater remedies and rights than those allowed to Assignor in the respective
Assigned Properties. In the event or any conflict between the remedies and
rights contained in any of the Assigned Properties and the remedies and rights
contained in this Article IV, the remedies and rights set forth in the
applicable Assigned Property shall govern.
ARTICLE V
DISCHARGE OF SENIOR ASSIGNMENT
Section 5.01. Discharge of Senior Assignment. If Assignor shall pay or
cause to be paid, or there shall otherwise be paid, to Assignee and/or the
Holders, all amounts required to be paid by Assignor pursuant to the Senior Note
Indenture and the Senior Notes, and the conditions precedent for the Senior Note
Indenture to cease, determine and become null and void (except for any surviving
rights of transfer or exchange of the Senior Notes and any right to receive
payments of principal and interest as provided in Article Thirteen or Section
10.3 of the Senior Note Indenture) in accordance with Article Thirteen of the
Senior Note Indenture, Assignee shall promptly cancel and discharge of record
this Senior Assignment and any financing statements filed in connection herewith
and execute and deliver to Assignor and to the Partnership all such instruments
as may be appropriate to evidence such discharge and satisfaction of any lien or
liens, and Assignee shall pay over or deliver to Assignor all other moneys and
securities held by it pursuant to this Senior Assignment, which are not required
for the payment of (a) principal and redemption price, if applicable, of and
interest on, the Senior Notes and (b) and all other amounts required to be paid
by Assignor pursuant to the Senior Note Indenture and the Senior Notes.
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ARTICLE VI
MISCELLANEOUS PROVISIONS
Section 6.01. Binding Successors and Assigns. All of the covenants,
stipulations, obligations and agreements contained in this Senior Assignment
shall be binding upon and inure to the benefit of Assignor, Assignee and the
Partnership and their respective successors and assigns.
Section 6.02. Notices.
Any request, notice, demand, authorization, direction, request or other
instrument authorized or required by this Senior Assignment to be given to or
filed with Assignor, Assignee, or the Partnership (collectively "Notices") shall
be deemed given when either (i) delivered by hand (including by overnight
courier) or (ii) two days after sending by registered or certified mail, postage
prepaid, addressed as follows:
(i) To Assignee:
U.S. Bank National Association
000 Xxxx Xxxxx Xxxxxx
Xx. Xxxx, Xxxxxxxxx 00000
Attention: Corporate Trust Administration
(ii) To Assignor:
Trump's Castle Funding, Inc.
Xxxxx Xxxxxx Hotel Casino
Brigantine Boulevard at Xxxxx Xxxxxx
Xxxxxxxx Xxxx, Xxx Xxxxxx 00000
Attention: Chief Executive Officer
(iii) To the Partnership:
Trump's Castle Associates, L.P.
Xxxxx Xxxxxx Hotel Casino
Brigantine Boulevard at Xxxxx Xxxxxx
Xxxxxxxx Xxxx, Xxx Xxxxxx 00000
Attention: Chief Executive Officer
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and and after May 26, 1998:
Xxxxxxx Xxxx & Xxxxxxxxx Xxxxxxx Xxxx & Xxxxxxxxx
One Citicorp Center 000 Xxxxxxx Xxxxxx
000 Xxxx 00xx Xxxxxx Xxx Xxxx, XX 00000-0000
Xxx Xxxx, Xxx Xxxx 00000 Attn: Xxxxxx X. Xxxxxx, Esq.
Attn: Xxxxxx X. Xxxxxx, Esq.
(b) By Notice to the Partnership, Assignor and or Assignee, given as
provided above, any party may designate additional or substitute addresses for
Notices, which shall, notwithstanding Subsection (a) above, be deemed given when
received.
Section 6.04. Partial Invalidity. In case any one or more of the
provisions of this Senior Assignment shall for any reason be held to be illegal
or invalid, such illegality or invalidity shall not affect any other provision
of this Senior Assignment, but this Senior Assignment shall be construed and
enforced at the time as if such illegal or invalid provisions had not been
contained herein or therein, nor shall such illegality or invalidity or any
application thereof affect any legal and valid application herein or thereof
from time to time.
Section 6.05. Applicable Law. This Senior Assignment shall be governed by
and construed under the internal laws of the State of New Jersey, without giving
effect to the principles of conflicts of law.
Section 6.06. No Amendments. For so long as the Senior Notes shall remain
outstanding, this Senior Assignment may not be modified, amended or terminated
except in accordance with the provisions of the Senior Note Indenture or the
Assigned Properties.
Section 6.07. Casino Control Act. Each of the provisions of this Senior
Assignment is subject to and shall be enforced in compliance with the provisions
of the New Jersey Casino Control Act.
Section 6.08. Limitation on Liability. Notwithstanding anything herein or
any other agreement, document, certificate, instrument, statement or omission
referred to below to the contrary, the Partnership and the Assignor are liable
hereunder only to the extent of the assets of the Partnership and the interest
of the Assignor in the Assigned Properties which are secured by the
Partnership's assets and no other person or entity, including, but not limited
to, any partner, officer, representative, committee or committee member of the
Partnership or any partner therein or of any Affiliate (as defined in the
Indenture) of the Partnership or any incorporator, officer, director or
shareholder of the Assignor, of any corporate partner of the Partnership, or of
any corporate Affiliate of the Partnership, or any Affiliate or controlling
person or entity of any of the foregoing, or any agent, employee or lender of
any of the foregoing or any successor, personal representative, heir or assign
of any of the foregoing, in each case past, present or as they may exist in the
future, shall be liable in any respect (including without limitation for the
breach of
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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 Assignment, or any other
agreement, document, certificate, instrument or statement (oral or written)
related to, executed or to be executed, delivered or to be delivered, or made or
to be made, or any omission made or to be made, in connection with any of the
foregoing or any of the transactions contemplated in any such agreement,
document, certificate, instrument or statement. Any agreement, document,
certificate, statement or other instrument to be executed simultaneously with,
in connection with, arising out of or relating to this Senior Assignment or any
other agreement, document, certificate, statement or instrument referred to
above, or any agreement, document, certificate, statement or instrument
contemplated hereby shall contain language mutatis mutandis to this paragraph
and, if such language is omitted, shall be deemed to contain such language.
6.09. Indemnification. Assignor agrees to indemnify Assignee for, and to
hold it harmless against, any loss, liability or expense incurred without
negligence or bad faith on its part, arising out of or in connection with the
acceptance or administration of this Senior Assignment, including the costs and
expenses of defending itself against any claim, or with the exercise or
performance of any of its powers or duties hereunder.
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IN WITNESS WHEREOF, Assignor, Assignee, and the Partnership have executed
this Senior Assignment as of the date first above written.
TRUMP'S CASTLE FUNDING, INC., a New Jersey
corporation
Witness: /s/ Xxxx X. Xxxxxxx By: /s/ Xxxxxxxx X. Xxxxx
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Xxxx X. Xxxxxxx Name: Xxxxxxxx X. Xxxxx
Title: President and Chief Executive
Officer
TRUMP'S CASTLE ASSOCIATES, L.P.
a New Jersey limited partnership
By: Trump's Castle Hotel & Casino, Inc.,
its general partner
Witness: /s/ Xxxx X. Xxxxxxx By: /s/ Xxxxxxxx X. Xxxxx
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Xxxx X. Xxxxxxx Name: Xxxxxxxx X. Xxxxx
Title: President and Chief Executive
Officer
U.S. BANK NATIONAL ASSOCIATION,
as Trustee under the Senior Note Indenture
Witness: /s/ Xxxx X. Xxxxxxx By: /s/ Xxxxxxx X. Xxxxxxxx
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Xxxx X. Xxxxxxx Name: Xxxxxxx X. Xxxxxxx
Title: Assistant Vice President
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XXXXX XX XXX XXXX )
) 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 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/ Xxxxxx Xxxxxxx
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Notary Public of the State of New York
My Commission Expires:
(NOTARIAL SEAL)
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XXXXX XX XXX XXXX )
) 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 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/ Xxxxxx Xxxxxxx
-----------------------------------------
Notary Public of the State of New York
My Commission Expires:
(NOTARIAL SEAL)
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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 X. XXXXXXXX, 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/ Xxxxx X. Xxxxxxx
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Notary Public of the State of New York
My Commission Expires:
(NOTARIAL SEAL)
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