Exhibit 4.37
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ASSIGNMENT
OF
LEASES AND RENTS
XXXXX PLAZA 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 10th day of December, 1997, by XXXXX PLAZA 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 Plaza Hotel and Casino 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
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
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due of all of the Guarantors' obligations under the Guarantee and the payment
and performance when 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 PLAZA 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
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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, Xxxxxxxxxx, XX 00000; that he is
Vice President of Xxxxx Atlantic City Corporation, which is a general partner
of XXXXX PLAZA 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
[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
[SEAL]
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