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SENIOR TCHI ASSIGNMENT AGREEMENT
dated as of April 17, 1998
by
TRUMP'S CASTLE HOTEL & CASINO, INC.,
a New Jersey corporation, as Assignor
to
U.S. BANK NATIONAL ASSOCIATION,
as Trustee under the TCHI 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 TCHI ASSIGNMENT AGREEMENT
This SENIOR TCHI ASSIGNMENT AGREEMENT (the "Senior TCHI Assignment") is
dated as of April 17, 1998 from TRUMP'S CASTLE HOTEL & CASINO, INC., a New
Jersey corporation ("Assignor"), to U.S. BANK NATIONAL ASSOCIATION, a national
banking association, as Trustee under the TCHI Note Indenture, as defined below
("Assignee").
W I T N E S S E T H:
WHEREAS, Assignor is the general partner of Trump's Castle Associates,
L.P. a New Jersey limited partnership (the "Partnership"), and will function as
the Partnership's financing vehicle for advancing to the Partnership the
proceeds of a certain $5,000,000 Working Capital Facility against receipt of the
Partnership's promissory notes, secured by a mortgage upon the Partnership's
assets; and
WHEREAS, Assignor has issued and sold $5,000,000 aggregate principal
amount of its 10 1/4% Senior Secured Notes due 2003 (the "TCHI Notes", pursuant
to the provisions of an Indenture (the "TCHI 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 subsidiary, in exchange for the Partnership's note in the
principal amount of $5,000,000 (the "Senior Partnership Upstream Note") which is
secured by an Indenture of Mortgage and Security Agreement (the "Senior
Partnership Upstream 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 "TCHI Assignment of Leases"); and
WHEREAS, certain terms defined in the TCHI Note Indenture are used herein
with the meanings there provided.
NOW, THEREFORE, THIS TCHI 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
Upstream 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 Partnership
Upstream 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 TCHI 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 TCHI 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 TCHI 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
TCHI 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 TCHI 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 TCHI 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 TCHI 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 TCHI 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 TCHI 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
Upstream Note, the TCHI Note Indenture, or the Senior Partnership Upstream Note
Mortgage, and (b) the net proceeds realized
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upon or as a result of the enforcement of any mortgage lien, security interest
or assignment of leases granted or assigned under the Assigned Properties or
this Senior TCHI Assignment or upon or as a result of the exercise of any right
or remedy under the Assigned Properties or this Senior TCHI 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 TCHI
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 TCHI Note Indenture or the Senior Partnership Upstream
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 TCHI 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 Partnership Upstream 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 TCHI 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 TCHI 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
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or the Partnership for principal and interest on the Senior Partnership Upstream
Note, or other sums due under the Senior Partnership Upstream Note Mortgage or
the TCHI Note Indenture, as the case may be, or otherwise 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 Upstream 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 TCHI ASSIGNMENT
Section 5.01. Discharge of Senior TCHI 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 TCHI Note
Indenture and the TCHI Notes, and the conditions precedent for the TCHI Note
Indenture to cease, determine and become null and void (except for any surviving
rights of transfer or exchange of the TCHI Notes and any right to receive
payments of principal and interest as provided in Article Thirteen or Section
10.3 of the TCHI Note Indenture) in accordance with Article Thirteen of the TCHI
Note Indenture, Assignee shall promptly cancel and discharge of record this
Senior TCHI 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 TCHI Assignment, which are not
required for the payment of (a) principal and redemption price, if applicable,
of and interest on,
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the TCHI Notes and (b) and all other amounts required to be paid by Assignor
pursuant to the TCHI Note Indenture and the TCHI Notes.
ARTICLE VI
MISCELLANEOUS PROVISIONS
Section 6.01. Binding Successors and Assigns. All of the covenants,
stipulations, obligations and agreements contained in this Senior TCHI
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 TCHI 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 Hotel & Casino, 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 TCHI 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 TCHI Assignment, but this Senior TCHI 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 TCHI 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 TCHI Notes shall remain
outstanding, this Senior TCHI Assignment may not be modified, amended or
terminated except in accordance with the provisions of the TCHI Note Indenture
or the Assigned Properties.
Section 6.07. Casino Control Act. Each of the provisions of this Senior
TCHI 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
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exist in the future, shall be liable in any respect (including without
limitation for the breach of any representation, warranty, covenant, agreement,
condition or indemnification or contribution undertaking contained herein or
therein) under, in connection with, arising out of or relating to this Senior
TCHI 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 TCHI 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 TCHI 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 TCHI Assignment as of the date first above written.
TRUMP'S CASTLE HOTEL & CASINO, INC.., a New
Jersey corporation
Witness: /s/ Xxxxx Xxxxxxx By: /s/ R. Xxxxx XxXxx
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Xxxxx Xxxxxxx Name: R. Xxxxx XxXxx
Title: Vice President
TRUMP'S CASTLE ASSOCIATES, L.P.
a New Jersey limited partnership
By: Trump's Castle Hotel & Casino, Inc.,
its general partner
Witness: /s/ Xxxxx Xxxxxxx By: /s/ R. Xxxxx XxXxx
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Xxxxx Xxxxxxx Name: R. Xxxxx XxXxx
Title: Vice President
U.S. BANK NATIONAL ASSOCIATION,
as Trustee under the TCHI Note Indenture
Witness: /s/ Xxxx Xxxxxxx By: /s/ Xxxxxxx X. Xxxxxxxx
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Xxxx 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 17th day of April, 1998, before me the
subscriber, a Notary Public of the State of New York, personally appeared R.
Xxxxx XxXxx, the Vice President 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 corporation
made by virtue of the authority of its board of directors.
/s/ Xxxxxxx X. 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 17th day of April, 1998, before me the
subscriber, a Notary Public of the State of New York, personally appeared R.
Xxxxx XxXxx, the Vice President 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/ Xxxxxxx X. Xxxxxxx
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Notary Public of the State of New York
My Commission Expires:
(NOTARIAL SEAL)
-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 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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