INDENTURE OF MORTGAGE AND SECURITY AGREEMENT
TRUMP PLAZA ASSOCIATES
Mortgagor
and
FIRST BANK NATIONAL ASSOCIATION,
AS COLLATERAL AGENT
Mortgagee
Dated as of April 17, 1996
----------------------------------------------------
Record and return to:
Skadden, Arps, Slate, Meagher & Flom
919 Third Avenue
New York, New York 10022
Attention: Wallace L. Schwartz, Esq.
TABLE OF CONTENTS
Page
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF
GENERAL APPLICATION
Section 1.01. Definitions ................................................. 10
Section 1.02. Notices ..................................................... 21
Section 1.03. Form and Contents of Documents
Delivered to Mortgagee .................................... 22
Section 1.04. Compliance Certificates and Opinions ........................ 22
Section 1.05. Effect of Headings and Table of
Contents .................................................. 22
Section 1.06. Successors and Assigns; Amendments .......................... 22
Section 1.07. Separability Clause ......................................... 23
Section 1.08. Benefits of Mortgage ........................................ 23
Section 1.09. Governing Law ............................................... 23
Section 1.10. Limitation on Liability ..................................... 23
Section 1.11. Provisions Required by Trust
Indenture ................................................. 23
Section 1.12. Rights of Mortgagee ......................................... 24
Section 1.13. Mortgage Subject to Casino Control Act ...................... 25
Section 1.14. Discharge of Lien ........................................... 25
Section 1.15. General Application ......................................... 26
Section 1.16. Mortgage Deemed to be Security Agreement .................... 26
ARTICLE TWO
RELEASE; SUBORDINATION
Section 2.01. Possession by Mortgagor ..................................... 27
Section 2.02. Obsolete Property ........................................... 27
Section 2.03. F,F&E Financing Agreements .................................. 27
Section 2.04. Intentionally Omitted ....................................... 28
ARTICLE THREE
REMEDIES
Section 3.01. Events of Default ........................................... 28
Section 3.02. Application of Moneys Received by Mortgagee ................. 28
Section 3.03. Restoration of Rights and Remedies .......................... 29
Section 3.04. Rights and Remedies Cumulative .............................. 29
Section 3.05. Delay or Omission Not Waiver ................................ 29
Section 3.06. Undertaking for Costs ....................................... 29
Section 3.07. Waiver of Appraisement and Other Laws ....................... 30
Section 3.08. Entry ....................................................... 30
Section 3.09. Power of Sale; Suits for Enforcement ........................ 31
Section 3.10. Incidents of Sale ........................................... 31
Section 3.11. Receiver .................................................... 33
Section 3.12. Suits to Protect the Trust Estate ........................... 33
Section 3.13. Management of the Premises .................................. 33
ARTICLE FOUR
CONSOLIDATION, MERGER, CONVEYANCE,
TRANSFER OR LEASE
Section 4.01. Consolidation, Merger, Conveyance or
Transfer only on Certain Terms ............................. 34
ARTICLE FIVE
COVENANTS AND REPRESENTATIONS OF MORTGAGOR
Section 5.01. Performance of Obligations .................................. 34
Section 5.02. F,F&E Financing Agreements .................................. 34
Section 5.03. Limitations on Liens and Transfers .......................... 34
Section 5.04. Environmental ............................................... 36
Section 5.05. Pari Passu Liens ............................................ 40
Section 5.06. Warranty of Leasehold Estate and Title ...................... 40
Section 5.07. After-Acquired Property; Further Assurances:
Recording ................................................. 42
Section 5.08. Payment of Taxes and Certain Claims;
Maintenance of Properties;
Compliance with Legal Requirements and
Insurance Requirements .................................... 45
Section 5.09. Permitted Contests .......................................... 47
Section 5.10. Mechanics' and Other Liens .................................. 48
Section 5.11. To Insure ................................................... 48
Section 5.12. Limitations on Building Demolition,
Alterations, Improvements and New Construction ............ 51
Section 5.13. Leases ...................................................... 53
Section 5.14. Compliance Certificates ..................................... 55
Section 5.15. Intentionally Omitted ....................................... 55
Section 5.16. To Keep Books; Inspection by Mortgagee ...................... 55
Section 5.17. Advances by Mortgagee ....................................... 56
Section 5.18. Waiver of Stay, Extension or Usury Laws ..................... 56
Section 5.19. Intentionally Omitted ....................................... 57
Section 5.20. Facility Leases ............................................. 57
Section 5.21. Superior Mortgages .......................................... 63
Section 5.22. Indemnification ............................................. 65
Section 5.23. Acceptance .................................................. 66
SCHEDULES AND EXHIBITS
Schedule 1 - Owned Land
Schedule 2 - Ground Leases and Ground Lease Land
Schedule 3 - Parking Leases and Parking Lease Land
Schedule 4 - Convention Hall Easements
Schedule 5 - Form of Non-Disturbance and Attornment
Agreement
Exhibit A - Form of Trust Indenture
INDENTURE OF MORTGAGE AND SECURITY AGREEMENT
INDENTURE OF MORTGAGE AND SECURITY AGREEMENT ("Mortgage"), dated as of
April 17, 1996, between TRUMP PLAZA ASSOCIATES, a New Jersey partnership
("Mortgagor"), having an office at Mississippi Avenue and The Boardwalk,
Atlantic City, New Jersey 08401, and FIRST BANK NATIONAL ASSOCIATION, a national
banking association having an office at 180 East Fifth Street, St. Paul,
Minnesota 55101, as Collateral Agent ("Mortgagee"), on behalf of the Designated
Representatives (as hereinafter defined) for the benefit of the Secured
Beneficiaries (as hereinafter defined) under the Collateral Agency Agreement (as
hereinafter defined).
W I T N E S S E T H:
In consideration of $10.00 in hand paid by Mortgagee to Mortgagor and for
other good and valuable consideration, the receipt and sufficiency whereof is
hereby acknowledged, and in order to secure (i) the punctual payment and
performance when due of all of Guarantors' obligations under the Guarantee; (ii)
the punctual payment and performance when due of all of the Company's, the
Issuers', the Guarantors' and the Mortgagor's obligations under the Mortgage
Notes, the Trust Indenture, the Secured Loans, the Debt Documents and, to the
extent not otherwise included, any other Obligations in the initial principal
sum of $1,200,000,000 but which principal sum may be increased up to
$1,300,000,000 pursuant to the terms of the Trust Indenture and the Collateral
Agency Agreement; (iii) payment by Mortgagor to Mortgagee of all sums expended
or advanced by Mortgagee pursuant to any term or provision of this Mortgage;
(iv) performance of each covenant, term, condition and agreement of Mortgagor
herein contained; (v) all costs and expenses, including, without limitation,
reasonable counsel fees and expenses as provided in Section 3.07, which may
arise in respect of this Mortgage or of the obligations secured hereby; and (vi)
performance and observance of all of the provisions herein contained, Mortgagor
has executed and delivered this Mortgage and has bargained, sold, alienated,
mortgaged, pledged, released, conveyed and confirmed unto Mortgagee and its
successors hereunder and assigns forever, all of its right, title and interest
in, to and under all of the following described property:
GRANTING CLAUSES
Granting Clause First
All of the property, rights, title, interest, privileges and franchises
particularly described in annexed Schedule 1 (the "Owned Land") which Schedule
is hereby made a part of, and deemed to be described in, this Granting Clause as
fully as if set forth in this Granting Clause at length.
Granting Clause Second
All of the property, rights, title, interest, privileges and franchises of
Mortgagor as lessee under (a) all Facility Leases and (b) all Parking Leases,
together with (i) all credits, deposits, privileges and rights of Mortgagor as
lessee under the Facility Leases and the Parking Leases, now or at any time
existing, (ii) the leaseholds and the leasehold estates created by the Facility
Leases and the Parking Leases and (iii) all of the estates, rights, titles,
claims or demands whatsoever of Mortgagor, either in law or in equity, in
possession or in expectancy, of, in and to the Facility Leases, the Leased
Facilities, the Parking Leases and the Parking Lease Land, together with (x) any
and all other, further or additional title, estates, interests or rights which
may at any time be acquired by Mortgagor in or to the Leased Facilities or the
Parking Lease Land or any part thereof, and Mortgagor expressly agrees that if
Mortgagor shall, at any time prior to payment in full of all indebtedness
secured hereby, acquire fee simple title or any other greater estate to the
Leased Facilities (including, without limitation, to the Ground Lease Land
pursuant to Article Forty-Fourth or Fifty-Second of the Ground Leases) or the
Parking Lease Land, the Lien of this Mortgage shall attach, extend to, cover and
be a Lien upon such fee simple title or other greater estate and (y) any right
to possession or statutory term of years derived from, or incident to, the
Facility Leases or the Parking Leases pursuant to Section 365(h) of the Code or
any Comparable Provision.
Except as otherwise set forth herein and in the other Mortgage Documents,
the assignment made by this Granting Clause Second shall not impair or diminish
any right, privilege or obligation of Mortgagor with respect to the Facility
Leases or the Parking Leases, nor shall any such obligation be imposed on
Mortgagee.
Granting Clause Third
All of the rents, issues, 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 (a) the
use or
occupancy of the rooms and other public facilities in the Hotel and (b)
the operation of the Casino) of the property subjected or required to be
subjected to the Lien of this Mortgage, including, without limitation, the
property described in Granting Clauses First, Second and Sixth (said property
described in Granting Clauses First, Second and Sixth and similar other property
subjected or required to be subjected to the Lien of this Mortgage, together
with all such rents, issues, profits, revenues, accounts, accounts receivable
and other income and proceeds therefrom is hereinafter collectively referred to
as the "Premises") and all of the estate, right, title and interest of every
nature whatsoever of Mortgagor in and to the same and every part thereof.
Granting Clause Fourth
All of the rights of Mortgagor as lessor under the Leases in effect on the
date of execution of this Mortgage or hereafter entered into by Mortgagor,
including modifications, extensions and renewals of all of the same, and the
immediate and continuing right as security in accordance with the Assignment of
Leases and Rents, and, after the occurrence, and during the continuance, of an
Event of Default, to (a) make claim for, collect, receive and receipt for (and
to apply the same as provided herein) any and all rents, fees, charges, income,
revenues, issues, profits, security and other sums of money payable or
receivable thereunder or pursuant thereto, and all proceeds thereof, whether
payable as rent, insurance proceeds, condemnation awards, security or otherwise
and whether payable prior to or subsequent to the Stated Maturity of any of the
Debt Documents, (b) receive and give notices and consents thereunder, (c) bring
actions and proceedings thereunder or for the enforcement thereof, (d) make
waivers and agreements thereunder or with respect thereto, (e) take such action
upon the happening of a default under any Lease, including the commencement,
conduct and consummation of any proceedings at law or in equity as shall be
permitted by any provision of any Lease, and (f) do any and all things which
Mortgagor or any lessor is or may become entitled to do under the Leases;
provided, that, except as may be set forth to the contrary in the Assignment of
Leases and Rents, the assignment made by this Granting Clause Fourth shall not
impair or diminish any right, privilege or obligation of Mortgagor under the
Leases nor shall any such obligation be imposed upon Mortgagee.
Granting Clause Fifth
Without limiting the generality of the provisions of Granting Clause Third,
all of Mortgagor's rights, title, interest, privileges and franchises in and to
the following, now owned or hereafter acquired by Mortgagor, to the extent of
Mortgagor's interest therein and thereto and to the extent assignable
(collectively, "Operating Assets"):
bookings for the use of guest rooms, banquet facilities, meeting rooms
at the Casino Hotel or at any other improvements now or hereafter located
on any of the Land;
all contracts respecting utility services for, and the maintenance,
operations, or equipping of, the Premises, including guaranties and
warranties relating thereto;
the Permits;
all contract rights, leases (whether with respect to real property,
personal property or both real and personal property, excluding the
Facility Leases and the Parking Leases), concessions, trademarks, trade
names, service marks, logos, copyrights, warranties and other items of
intangible personal property, and any and all good will associated with the
same relating to the ownership or operation of the Casino Hotel or of any
other improvements now or hereafter located on any of the Land, including,
without limitation, (1) telephone and other communication numbers, (2) all
software licensing agreements as are required to operate computer software
systems at the Casino Hotel or at any other improvements now or hereafter
located on any of the Land and books and records relating to the software
programs and (3) lessee's interest under leases of Tangible Personal
Property;
all contracts, purchase orders, requisitions and agreements entered
into by or on behalf of Mortgagor or which have been assigned to Mortgagor,
for the design, construction, and furnishing of the Casino Hotel or of any
other improvements now or hereafter located on any of the Land, including,
without limitation, architect's agreements, engineering agreements,
construction contracts, consulting agreements and agreements or purchase
orders for all items of Tangible Personal Property and payment and
performance bonds in favor of Mortgagor in connection with the Trust Estate
(and all warranties and guarantees thereunder and warranties and guarantees
of any subcontractor and bond issued in connection with the work to be
performed by any subcontractor);
the following personal property (the "Tangible Personal Property") now
or hereafter acquired by Mortgagor (directly or by way of lease) which are
located on, or to be located on, or which are in use or held in reserve
storage for future use in connection with the gaming or other operations
of, the Casino Hotel or of any other improvements now or hereafter located
on any of the Land, which are on hand or on order whether stored on-site or
off-site:
all furniture, furnishings, equipment, machinery, apparatus,
appliances, fixtures and fittings and other articles of tangible personal
property;
all slot machines, electronic gaming devices, crap tables, blackjack
tables, roulette tables, baccarat tables, big six wheels and other gaming
tables, and all furnishings and equipment to be used in connection with the
operation thereof;
all cards, dice, gaming chips and placques, tokens, chip racks,
dealing shoes, dice cups, dice sticks, layouts, paddles, roulette balls and
other consumable supplies and items;
all china, glassware, linens, kitchen utensils, silverware and
uniforms;
all consumables and operating supplies of every kind and nature,
including, without limitation, accounting supplies, guest supplies, forms,
printing, stationery, food and beverage stock, bar supplies, laundry
supplies and brochures to existing purchase orders;
all upholstery material, carpets and rugs, beds, bureaus,
chiffonniers, chairs, chests, desks, bookcases, tables, curtains, hangings,
pictures, divans, couches, ornaments, bars, bar fixtures, safes, stoves,
ranges, refrigerators, radios, televisions, clocks, electrical equipment,
lamps, mirrors, heating and lighting fixtures and equipment, ice machines,
air conditioning machines, fire prevention and extinguishing apparatus,
laundry machines, and all similar and related articles used in bedrooms,
sitting rooms, bathrooms, boudoirs, halls, closets, kitchens, dining rooms,
offices, lobbies, basements and cellars in the Casino Hotel and in any
other improvements now or hereafter located on any of the Land;
all sets and scenery, costumes, props and other items of tangible
personal property on hand or on order for use in the production of shows in
any showroom, convention space, exhibition hall, or sports and
entertainment arena of the Casino Hotel or in any other improvements now or
hereafter located on any of the Land; and
all cars, limousines, vans, buses, trucks and other vehicles owned or
leased by Mortgagor for use in connection with the operation of the
Premises, together with all equipment, parts and supplies used to service,
repair, maintain and equip the foregoing;
all drawings, designs, plans and specifications prepared by
architects, engineers, interior designers, landscape designers and any
other professionals or consultants for the design, development,
construction and/or improvement of the Casino Hotel, or for any other
development of the Premises, as amended from time to time;
any administrative and judicial proceedings initiated by Mortgagor, or
in which Mortgagor has intervened, concerning
the Premises, and agreements, if any, which are the subject matter of such
proceedings;
any customer lists utilized by Mortgagor including lists of transient
guests and restaurant and bar patrons and "high roller" lists; and
all of the good will in connection with the assets listed in this
Granting Clause Fifth and in connection with the operation of the Premises.
Except as otherwise set forth herein and in the other Mortgage Documents,
the assignment made by this Granting Clause Fifth shall not impair or diminish
any right, privilege or obligation of Mortgagor with respect to the Operating
Assets, nor shall any such obligation be imposed on Mortgagee.
Granting Clause Sixth
All of Mortgagor's rights, title, interest, privileges and franchises in
and to all buildings, structures (surface and subsurface), and other
improvements of every kind and description, including, without limitation, all
pedestrian bridges, entrance-ways, parking lots, plazas, curb-cuts, walkways,
driveways and landscaping and such fixtures as constitute real property, now or
hereafter erected or placed on the Land or on any other land or any interest
therein hereafter acquired by Mortgagor and all of Mortgagor's rights, title,
interest, privileges and franchises in and to all fixtures and articles of
personal property now or hereafter attached to or contained in and used in
connection with such buildings and improvements, including, without limitation,
all apparatus, furniture, furnishings, machinery, motors, elevators, fittings,
radiators, cooking ranges, ice boxes, ice machines, printing presses, mirrors,
bars, mechanical refrigerators, furnaces, coal and oil burning apparatus, wall
cabinets, machinery, generators, partitions, steam and hot water boilers,
lighting and power plants, pipes, plumbing, radiators, sinks, bath tubs, water
closets, gas and electrical fixtures, awnings, shades, screens, blinds,
dishwashers, freezers, vacuum cleaning systems, office equipment and other
furnishings, and all plumbing, heating, lighting, cooking, laundry, ventilating,
incinerating, air-conditioning and sprinkler equipment or other fire prevention
or extinguishing apparatus and material, and fixtures and appurtenances thereto;
and all renewals or replacements thereof or articles in substitution therefor,
whether or not the same are or shall be attached to the Land, any other land or
any interest therein hereafter acquired by Mortgagor or to any such buildings
and improvements thereon, in any manner.
All of Mortgagor's rights, title, interest, privileges and franchises in
and to all other property, real, personal or mixed (other than Excepted
Property), of every kind and description and wheresoever situate, now owned or
which may be hereafter acquired by Mortgagor (including, without limitation, (i)
the Ground Lease Land, if Mortgagor acquires the fee simple title to the Ground
Lease Land or any part thereof whether by exercise of any or all of the options
contained in Articles Forty-Fourth and Fifty-Second of the Ground Leases or
otherwise, and/or the Parking Lease Land or any part thereof and/or any other
Leased Facilities, if Mortgagor acquires fee simple title to such Leased
Facilities or any part thereof, (ii) all air rights and rights to maintain
supporting columns, all rights to construct and maintain tunnels and bridges and
other elevated structures, all rights to create private rights of way over
streets now or hereafter owned or enjoyed by Mortgagor appurtenant to real
property, including, without limitation, those rights, if any, granted by (t)
Ordinance #68 of 1983 adopted December 20, 1983 by the City of Atlantic City,
New Jersey (the "City") (u) Ordinance #35 of 1981 adopted May 21, 1981 by the
City and recorded July 13, 1982 in Deed Book 3700 page 337, (v) Vacation
Ordinance #17 of 1982, adopted March 11, 1982 by The Board of Commissioners of
the City and recorded July 13, 1982 in Deed Book 3700 page 341, (w) Ordinance
#36 of 1982 adopted February 10, 1983 by the City, (x) deeds from the City dated
May 3, 1982 and recorded on May 7, 1982 in (A) Deed Book 3685 page 120, (B) Deed
Book 3685 page 105, (C) Deed Book 3685 page 110, (D) Deed Book 3685 page 124,
(E) Deed Book 3685 page 115 and (F) Deed Book 3685 page 128, (y) corrective
deeds from the City (A) dated June 28, 1982 and recorded July 13, 1982 in Deed
Book 3701 page 1, (B) dated June 29, 1982 and recorded July 13, 1982 in Deed
Book 3701 page 13, (C) dated June 28, 1982 and recorded July 13, 1982, in Deed
Book 3701 page 9, (D) dated June 29, 1982 and recorded July 13, 1982 in Deed
Book 3701 page 21, (E) dated June 28, 1982 and recorded July 13, 1982 in Deed
Book 3701 page 5, and (F) dated June 29, 1982 and recorded July 13, 1982 in Deed
Book 3701 page 17 and (z) easements from the City dated June 1, 1982 and
recorded June 8, 1982 in (A) Deed Book 3693 page 56, (B) Deed Book 3693 page 60
and (C) Deed Book 3693 page 64, as corrected by corrective easements dated June
29, 1982 and recorded July 13, 1982 in (A) Deed Book 3701 page 25, (B) Deed Book
3701 page 33, and (C) Deed Book 3701 page 29, and (iii) to the extent
assignable, all easements (including, without limitation, the Convention Hall
Easements), licenses, rights of way, gores of land, streets, ways, alleys,
passages, sewer rights, waters, water courses, water rights and powers, and all
estates, rights, titles, interests, privileges, franchises, liberties,
tenements, hereditaments and appurtenances of any nature whatsoever, in any way
for the benefit of, or belonging, relating or pertaining to, the Trust Estate),
it being the intention hereof that all property, interests, rights, privileges
and franchises now owned by Mortgagor or acquired by Mortgagor after the date
hereof (other than Excepted Property) shall be as fully embraced within
and subjected to the Lien hereof as if such property were specifically described
herein.
* * *
TOGETHER with all of Mortgagor's right, title and interest in and to any
and all mineral and water rights and any title or reversion, in and to the beds
of the ways, streets, avenues and alleys adjoining the Premises to the center
line thereof and in and to all strips, gaps and gores adjoining the Premises on
all sides thereof; and
TOGETHER with any and all of Mortgagor's right, title and interest in and
to the tenements, hereditaments, easements, appurtenances, passages, waters,
water courses, riparian rights, other rights, liberties and privileges thereof
or in any way now or hereafter appertaining to the Premises, including, without
limitation, any other claim at law or in equity as well as any after-acquired
title, franchise or license and the reversion and reversions and remainder and
remainders thereof; and
TOGETHER with any and all awards and other compensation heretofore or
hereafter to be made to the present and all subsequent owners of the Trust
Estate for any taking by eminent domain, either permanent or temporary, of all
or any part of the Trust Estate or any easement or appurtenances thereof,
including severance and consequential damage and change in grade of streets, all
in accordance with and subject to the provisions of the Superior Instrument
Requirements and Section 5.19; and
TOGETHER with any and all proceeds of any unearned premiums on any
insurance policies described in Sections 5.11 and 5.12, and the right to receive
and apply the proceeds of any insurance, judgments, or settlements made in lieu
thereof, for damage to the Trust Estate or otherwise, all in accordance with and
subject to the provisions of Section 5.11, Article IV of the Trust Indenture,
and the Superior Instrument Requirements.
EXCLUDING, with respect to all of the hereinabove granted property, rights,
title, interest, privileges and franchises described in Granting Clauses First
through Sixth and/or in the four immediately preceding paragraphs, all Excepted
Property now or hereafter existing.
TO HAVE AND TO HOLD all of said Premises, Leases, Facility Leases,
Operating Assets, properties, options, credits, deposits, rights, privileges and
franchises of every kind and description, real, personal or mixed, hereby and
hereafter granted, bargained, sold, alienated, assigned, transferred,
hypothecated, pledged, released, conveyed, mortgaged, or confirmed as aforesaid,
or intended, agreed or covenanted so to be, together with all the appurtenances
thereto appertaining (said Premises, Leases, Facility Leases, Operating Assets,
properties, options, credits, deposits, rights, privileges and
franchises, other than Excepted Property now or hereafter existing, being herein
collectively called the "Trust Estate") unto Mortgagee and its successors and
assigns forever.
SUBJECT, HOWEVER, to Permitted Liens (other than Restricted Encumbrances)
and Section 1.14.
BUT IN TRUST, NEVERTHELESS, for the benefit and security of the Secured
Creditors.
UPON CONDITION that, until the happening of an Event of Default, Mortgagor
shall be permitted to possess and use the Trust Estate, and to receive and use
the rents, issues, profits, revenues and other income of the Trust Estate.
AND IT IS HEREBY COVENANTED AND DECLARED that the Trust Estate is to be
held and applied by Mortgagee, subject to the further covenants, conditions and
trusts hereinafter set forth, and Mortgagor does hereby covenant and agree to
and with Mortgagee, for the benefit of the Secured Creditors, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF
GENERAL APPLICATION
Definitions.
For all purposes of this Mortgage, except as otherwise expressly provided
or unless the context otherwise requires:
the terms defined in this Article One have the meanings assigned to
them in this Article One and include the plural as well as the singular;
all accounting terms not otherwise defined herein have the meanings
assigned to them, and all computations herein provided for shall be made,
in accordance with generally accepted accounting principles in effect on
the date hereof consistently applied; and
the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Mortgage as a whole and not to any particular
Article, Section or other subdivision.
"Affiliate" has the meaning set forth in Section 1.1 of the Trust
Indenture.
"Alterations" has the meaning set forth in Section 5.12.
"Architect" means an Independent Person selected by Mortgagor and licensed
as an architect or engineer in the State of New Jersey.
"Assignment of Leases and Rents" means the Assignment of Leases and Rents
of even date herewith made by Mortgagor, as assignor, in favor of Mortgagee, as
assignee.
"Bankruptcy Law" has the meaning set forth in Section 1.1 of the Trust
Indenture.
"Casino" means that portion of the Casino Hotel used for gaming and related
activities.
"Casino Hotel" means the casino and hotel complex currently known as the
"Trump Plaza Hotel and Casino" in Atlantic City, New Jersey and ancillary
structures and facilities located on the Premises and all furniture, fixtures
and equipment at any time contained therein in each case owned by or leased to
Mortgagor and covered by the Lien of the Mortgage Documents.
"Casualty" means any act or occurrence of any kind or nature which results
in damage, loss or destruction to any buildings or improvements on the Premises
and/or Tangible Personal Property.
"Code" means the Federal Bankruptcy Code, Title 11 of the United States
Code, as amended.
"Collateral Agency Agreement" means the Collateral Agency Agreement, dated
as of the date hereof, by and among Mortgagee, Trustee, the Issuers, the
Guarantors and such other persons as may be permitted to become parties
thereunder in accordance with its terms and the terms of the Trust Indenture, as
the same may be amended from time to time in accordance with its terms.
"Company" means Trump Atlantic City Associates, a New Jersey partnership.
"Comparable Provision" has the meaning set forth in Section 5.20(b)(viii).
"Convention Hall Easements" means the easements and agreements described on
Schedule 4 attached hereto.
"Debt Documents" has the meaning set forth in Section 1 of the Collateral
Agency Agreement.
"Default" means any event which is, or after notice or lapse of time or
both would be, an Event of Default. Without limiting the generality of the
previous provisions of this definition, the term "Default" shall include the
occurrence of an event as to which a notice of default has been given to
Mortgagor under any Facility Lease by a Lessor or under any Superior Mortgage by
the holder thereof, which has not yet been cured.
"Designated Representatives" has the meaning set forth in Section 1 of the
Collateral Agency Agreement.
"Egg Harbor Mortgage" means that certain mortgage, dated October 5, 1990,
encumbering the Egg Harbor Parcel made by Mortgagor in favor of The Mutual
Benefit Life Insurance Company securing a note in the original principal amount
of $1,550,000 and recorded October 11, 1990 in Mortgage Book 4453, Page 1, and
that certain collateral assignment of leases, dated October 5, 1990, made by
Mortgagor in favor of The Mutual Benefit Life Insurance Company and recorded
October 11, 1990 in Deed Book 5142, Page 75, as assigned to MBL Life Assurance
Corporation, by assignment of mortgage, dated April 30,1994, recorded May 9,
1994 in Assignment Book 669 page 1, and any Refinancing Indebtedness thereof, to
the extent the same is permitted under the terms of the Trust Indenture and
Section 5.21(b)(i).
"Egg Harbor Parcel" means the portion of the Owned Land designated as the
"Egg Harbor Parcel" on Schedule 1.
"Event of Default" has the meaning set forth in Section 3.01.
"Excepted Property" means:
(1) the personal property owned by lessees under Leases and the
personal property of any Hotel guests;
(2) counterchecks and any other property to the extent that the
granting of a security interest therein is prohibited by the New Jersey
Casino Control Act, N.J.S.A. 5:12-1 et seq., and the regulations
promulgated thereunder;
(3) tradenames, intellectual property rights and interests in and to
the use of the terms "Trump Plaza Hotel and Casino", "Trump", "Donald J.
Trump",", "Donald Trump" or related variations thereof;
(4) all cash and Cash Equivalents (as defined in the Trust Indenture)
to the extent such cash and Cash Equivalents are not required to be pledged
to the Collateral Agent as security for the Obligations pursuant to the
terms of the Trust Indenture; and
(5) any property deemed to be Excepted Property pursuant to the
provisions of Section 2.03.
"Existing Encumbrances" means the Liens existing as of April 17, 1996 after
giving effect to the "Merger Transaction" (as such term is defined in the
Prospectus), including the Superior Mortgages.
"Facility Leases" means, collectively:
(1) the Ground Leases;
(2) the Rothenberg Lease;
(3) any other lease now existing or hereafter entered into or assumed
by Mortgagor as lessee with respect to any real property, whether it be
land, land and buildings and improvements thereon or only buildings and
improvements (excluding the Parking Leases), which is material to the
operation of the Mortgagor or which is necessary for the normal operation
of the Casino Hotel in accordance with all Legal Requirements and all
Permits; and
(4) any and all modifications, extensions and renewals of the leases
described in clauses (1) through (3) above, to the extent the same are
permitted under Section 5.20.
"F,F&E Financing Agreement" has the meaning set forth in Section 1.1 of the
Trust Indenture.
"Full Insurable Value" means the actual replacement cost (excluding the
costs of foundation, footing, excavation, paving, landscaping and other similar,
noninsurable improvements) of the insurable properties in question.
"Ground Lease Land" means the real property described in Schedule 2.
"Ground Leases" means the leases described in Schedule 2 as amended or
supplemented to the extent permitted by Section 5.20.
"Guarantee" means collectively, each guarantee made from time to time by
the Guarantors of the Issuers' Indenture Obligations (as defined in the Trust
Indenture) pursuant to Article Thirteen of the Trust Indenture.
"Guarantors" has the meaning set forth in Section 1.1 of the Trust
Indenture.
"Holder" has the meaning set forth in Section 1.1 of the Trust Indenture.
"Hotel" means that portion of the Casino Hotel not included within the
Casino.
"Impositions" has the meaning set forth in Section 5.08.
"Indebtedness" has the meaning set forth in Section 1.1 of the Trust
Indenture.
"Independent" when used with respect to any specified Person means such a
Person who (i) is in fact independent, (ii) does not have any direct financial
interest or any material indirect financial interest in Mortgagor or in any
Affiliate of Mortgagor and (iii) is not connected with Mortgagor or any
Affiliate of Mortgagor as an officer, employee, promoter, underwriter, trustee,
partner, director or person performing similar functions. Whenever it is herein
provided that any Independent Person's opinion or certificate shall be furnished
to Mortgagee, such opinion or certificate shall state that the signer has read
this definition and that the signer is Independent within the meaning thereof. A
Person who is performing or who has performed services as an independent
contractor to any specified Person shall not be considered not Independent
merely by reason of the fact that such Person is performing or has performed
such services.
"Insurance Amount" has the meaning set forth in Section 5.11(a)(i).
"Insurance Requirements" means all terms of any insurance policy covering
or applicable to the Trust Estate or
any part thereof, all requirements of the issuer of any such policy, and all
orders, rules, regulations and other requirements of the National Board of Fire
Underwriters (or any other body exercising similar functions) applicable to or
affecting the Trust Estate or any part thereof or any use or condition of the
Trust Estate or any part thereof.
"Insurer" means (i) an insurance company or companies selected by Mortgagor
authorized to issue insurance in the State of New Jersey with an A.M. Best &
Company, Inc. rating level of A minus or better and an A.M. Best & Company, Inc.
financial size category of X or better or, if such carrier is not rated by A.M.
Best & Company, Inc., having the financial stability and size deemed appropriate
by an opinion from a reputable insurance broker.
"Issuers" has the meaning set forth in Section 1.1 of the Trust Indenture.
"Land" means, collectively, the Owned Land and the Leased Land.
"Lease" means each lease or sublease (made by Mortgagor as lessor or
sublessor, as the case may be) of any space in any building or buildings, an
interest in which building or buildings constitutes a part of the Trust Estate,
including every agreement relating thereto or entered into in connection
therewith and every guarantee of the performance and observance of the
covenants, conditions and agreements to be performed by the lessee or sublessee
under any such lease or sublease. For purposes hereof, the term "Lease" shall
include any license agreement, concession agreement or other occupancy
agreement. Notwithstanding the foregoing, the term "Lease" shall not include any
transient room rentals.
"Leased Facilities" means, collectively, the Leased Land and any buildings
and improvements now or hereafter located thereon.
"Leased Land" means, collectively, the Ground Lease Land and any other land
that is now or hereafter subject to a Facility Lease.
"Legal Requirements" means all laws, statutes, codes, acts, ordinances,
orders, judgments, decrees, injunctions, rules, regulations, permits, licenses,
authorizations, directions and requirements (including, without limitation, the
New Jersey Casino Control Act, the New Jersey Industrial Site Recovery Act and
the New Jersey Spill Compensation and Control Act of 1976) of all governments,
departments, commissions, boards, courts, authorities, agencies, officials and
officers, of governments, federal, state and municipal (including, without
limitation, the New Jersey Department of Environmental Protection, the Atlantic
City Bureau of Investigations, the Division of Gaming Enforcement
of the State of New Jersey, and the Casino Control Commission of the State of
New Jersey, foreseen or unforeseen, ordinary or extraordinary, which now are or
at any time hereafter become applicable to the Trust Estate or any part thereof,
or any of the adjoining sidewalks, or any use or condition of the Trust Estate
or any part thereof, including, without limitation, the use of the Casino Hotel
as a gaming or gambling facility.
"Lessors" means the lessors under the Facility Leases.
"Lien" has the meaning set forth in Section 1.1 of the Trust Indenture.
"Material Instrument Requirements" means the applicable terms, conditions
and provisions of (i) the Ground Leases with respect to the Ground Lease Land,
(ii) the Parking Parcel Mortgage with respect to the Parking Parcel, (iii) the
Parking Leases with respect to the Parking Lease Land, (iv) the Egg Harbor
Mortgage with respect to the Egg Harbor Parcel and (v) any other Facility Lease
with respect to the portion of the Premises covered thereby.
"Maturity" when used with respect to any Indebtedness means the date on
which the principal (or any portion thereof) of such Indebtedness becomes due
and payable as therein or herein provided, whether at the Stated Maturity, upon
acceleration, optional redemption, required repurchase, scheduled principal
payment or otherwise.
"Mortgage" means this Indenture of Mortgage and Security Agreement, as
amended or supplemented from time to time in accordance with the terms hereof.
"Mortgage Documents" has the meaning set forth in Section 1.1 of the Trust
Indenture.
"Mortgage Notes" means the Issuers' First Mortgage Notes due 2006 in an
aggregate principal amount of $1,200,000,000, issued pursuant to the Trust
Indenture, including the guarantees thereof by the Guarantors.
"Mortgagee" means the Persons named as "Mortgagee" in the first paragraph
of this instrument including any successor entity which shall have become such
pursuant to the applicable provisions of the Collateral Agency Agreement and
this Mortgage.
"Mortgagor" means the Person named as "Mortgagor" in the first paragraph of
this instrument including any successor entity which shall have become such
pursuant to the applicable provisions of this Mortgage.
"Mortgagor Request" means a written request of the Mortgagor in the form of
an Officers' Certificate.
"Notices" has the meaning set forth in Section 1.02.
"Obligations" has the meaning set forth in Section 1 of the Collateral
Agency Agreement.
"Officer" has the meaning set forth in Section 1.1 of the Trust Indenture.
"Officers' Certificate" has the meaning set forth in Section 1.1 of the
Trust Indenture.
"Operating Assets" has the meaning set forth in Granting Clause Fifth.
"Opinion of Counsel" has the meaning set forth in Section 1.1 of the Trust
Indenture.
"Original Policy" means the ALTA Loan Policies of Title Insurance issued by
Commonwealth Land Title Insurance Company, First American Title Insurance Co.
and Chicago Title Insurance Company, pursuant to Commonwealth Land Title
Insurance Company Title Commitment No. F238427L and Commonwealth Land Title
Insurance Company Title Commitment No. F239636L, redated the date hereof,
insuring Mortgagee as to the Liens of this Mortgage and the Taj Mortgage in an
aggregate amount of not less than $1,200,000,000.
"Outstanding Amount" has the meaning set forth in Section 1.1 of the Trust
Indenture.
"Owned Land" has the meaning set forth in Granting Clause First.
"Parking Lease Land" means the real property described in Schedule 3.
"Parking Leases" means the leases and licenses described in Schedule 3.
"Parking Parcel" means the portion of the Owned Land designated as the
"Parking Parcel" on Schedule 1.
"Parking Parcel Mortgage" means the Mortgage made by Donald J. Trump,
nominee, to Albert Rothenberg and Robert Rothenberg, dated October 3, 1983,
securing a note in the original principal amount of $4,100,000 and recorded
October 6, 1983 in Mortgage Book 2900, page 233, encumbering portions of the
Parking Parcel, and any Refinancing Indebtedness thereof, to the extent the same
are permitted under the Trust Indenture and Section 5.21(b)(i).
"Permits" has the meaning set forth in Section 1.1 of the Trust Indenture.
"Permitted Liens" has the meaning set forth in Section 1.1 of the Trust
Indenture. All references to the subsections of the definition of Permitted
Liens shall mean the subsections of the definition of Permitted Liens as set
forth in the Trust Indenture.
"Person" means any individual, corporation, limited or general partnership,
joint venture, association, joint stock company, trust, unincorporated
organization or any other entity or government or any agency or political
subdivision thereof.
"Premises" has the meaning set forth in Granting Clause Third.
"Prospectus" has the meaning set forth in Section 1.1 of the Trust
Indenture.
"Refinancing Indebtedness" has the meaning set forth in Section 1.1 of the
Trust Indenture.
"Restricted Encumbrances" means (i) Leases which are subordinate to or
shall be subordinate to the Lien of this Mortgage pursuant to Section 5.13, (ii)
the Mortgage Documents, and any other instrument now or hereafter executed, as
additional security for the obligations secured by this Mortgage, (iii) any Lien
which pursuant to the terms of the Trust Indenture, the Collateral Agency
Agreement and the terms hereof is to be subordinate to, or pari passu with, the
Lien of this Mortgage and (iv) the leases and licenses which as of April 17,
1996 are subordinate to the Lien of this Mortgage pursuant to their terms or the
terms of any non-disturbance agreement executed in connection therewith; it
being intended that Restricted Encumbrances constitute those Permitted Liens
which are subordinate to, or pari passu with, the Lien of this Mortgage.
"Rothenberg Lease" means that certain Ground Lease, dated June 16, 1969,
recorded June 18, 1969 in Deed Book 2478 page 276, among Albert Rothenberg and
Robert Rothenberg, as lessors, and Four Seasons Motel Inc., as amended by (i)
Assignment of Lease, dated January 31, 1978, recorded February 9, 1978 in Deed
Book 3205 page 48, by Four Seasons Motel Inc. to Isadore Mokrin and Dorothy
Mokrin, (ii) Assignment of Lease, dated February 1, 1978, recorded February 9,
1978 in Deed Book 3205 page 52, by Isadore Mokrin and Dorothy Mokrin to Isadore
Mokrin and Dorothy Mokrin Partnership, (iii) Assignment of Lease, dated March
13, 1978 recorded March 21, 1978 in Deed Book 3215 page 5, by Isadore Mokrin and
Dorothy Mokrin Partnership to Boardwalk Properties Inc., (iv) Amended Lease,
dated March 9, 1979, recorded April 9, 1979 in Deed Book 3332 page 33, among
Albert Rothenberg and Robert Rothenberg, as lessors, and Boardwalk Properties
Inc., as lessee, (v) Assignment and Assumption of Tenant's Interest in Lease,
dated March 18, 1989 recorded March 20, 1989 in Deed Book 4865 page 223, by and
between Boardwalk Properties Inc. and Donald J. Trump, (vi) Assignment and
Assumption of Tenant's Interest in Lease, dated May 18, 1989 recorded June 19,
1989 in Deed Book 4921 page 183, by and between Boardwalk Properties Inc. and
Donald J. Trump, (vii) Assignment of Lease, dated June 24, 1993 recorded June
25, 1993 in Deed Book 5517 page 110, by and between Donald J. Trump to Missouri
Boardwalk, Inc. and (viii) Assignment of Lease, dated April 17, 1996, by and
between Missouri Boardwalk Inc. and Trump Plaza Associates.
"Securities Act" has the meaning set forth in Section 1.1 of the Trust
Indenture.
"Secured Beneficiaries" has the meaning set forth in Section 1 of the
Collateral Agency Agreement.
"Secured Loans" has the meaning set forth in Section 1 of the Collateral
Agency Agreement.
"Security Agreement" means the Security Agreement, dated as of the date
hereof, among the Issuers, Guarantors and Mortgagee.
"Stated Maturity" has the meaning set forth in Section 1.1 of the Trust
Indenture.
"Subsidiaries" has the meaning set forth in Section 1.1 of the Trust
Indenture.
"Superior Mortgages" means, collectively, the Parking Parcel Mortgage and
the Egg Harbor Mortgage.
"Taj Mortgage" means the Indenture of Mortgage and Security Agreement,
dated as of the date hereof, made by Trump Taj Mahal Associates for the benefit
of Mortgagee, as amended or supplemented from time to time in accordance with
the terms thereof.
"Tangible Personal Property" has the meaning set forth in Granting Clause
Fifth.
"Trust Estate" has the meaning stated in the habendum to the Granting
Clauses.
"Trust Indenture" means that certain Indenture of even date herewith among
Mortgagor, the Issuers, Guarantors and First National Bank Association, as
Trustee, as it may from time to time be supplemented, modified or amended in
accordance with its terms by one or more trust indentures or other instruments
supplemental thereto entered into pursuant to the applicable provisions thereof,
a form of which (without exhibits) is attached hereto as Exhibit A.
"Trust Indenture Act" has the meaning set forth in Section 1.1 of the Trust
Indenture.
"Trustee" means the Person named as the "Trustee" in the first paragraph of
the Trust Indenture and any successor thereto.
"TSA" means Trump Seashore Associates, a New Jersey general partnership.
"TSA Parcel" means the portion of the Ground Lease Land designated as the
"TSA Parcel" on Schedule 2.
"Uniform Commercial Code" means the New Jersey Uniform Commercial Code
N.J.S.A. 12A:1-101 et seq.
Notices.
Any request, demand, authorization, direction, notice (including, without
limitation, a notice of default), consent, waiver or other document provided or
permitted by this Mortgage to be made upon, given or furnished to, or filed
with, Mortgagor or Mortgagee (collectively, "Notices") shall be in writing and
shall be sufficiently given if made by hand delivery, by telex, by telecopier or
registered or certified mail, postage prepaid, return receipt requested,
addressed as follows:
To Mortgagor:
Trump Plaza Associates
Mississippi Avenue and The Boardwalk
Atlantic City, New Jersey 08401
Attn: Chief Financial Officer
with a copy to:
Willkie Farr & Gallagher
One Citicorp Center
153 East 53rd Street
New York, New York 10022
Attn: Jack H. Nusbaum, Esq.
To Mortgagee:
First Bank National Association
180 East Fifth Street
St. Paul, Minnesota 55101
Attn: Corporate Trust Department
Mortgagee or Mortgagor by notice in accordance with the terms hereof to the
other party may designate additional or different addresses as shall be
furnished in writing by such party. Any notice or communication to the Mortgagee
or Mortgagor shall be deemed to have been given or made as of the date so
delivered, if personally delivered; when answered back, if telexed; when receipt
is acknowledged, if telecopied; and 5 Business
Days after mailing if sent by registered or certified mail, postage prepaid
(except that a notice of change of address shall not be deemed to have been
given until actually received by the addressee).
Form and Contents of Documents Delivered to Mortgagee.
Any Officers' Certificate or Opinion of Counsel delivered to Mortgagee in
connection with this Mortgage shall be in compliance with the provisions of
Section 12.5 of the Trust Indenture.
Every application, certificate, report, affidavit, opinion, consent,
statement or other instrument required to be delivered to Mortgagee under this
Mortgage or under any other Mortgage Document shall be in writing and shall be
prepared and delivered without cost or expense to Mortgagee.
Compliance Certificates and Opinions.
Upon any application or request by Mortgagor to Mortgagee to take any
action under any provision of this Mortgage, Mortgagor shall furnish to
Mortgagee an Officers' Certificate and an Opinion of Counsel in compliance with
the provisions of Section 12.4 of the Trust Indenture.
Effect of Headings and Table of Contents.
The Article and Section headings herein and in the Table of Contents are
for convenience only and shall not affect the construction hereof.
Successors and Assigns; Amendments.
Subject to the provisions of Section 1.10 hereof and Section 6.2 of the
Trust Indenture, and without limiting the generality of Section 1.12 hereof,
this Mortgage shall be binding upon and inure to the benefit of the parties
hereto and of the respective successors and assigns of the parties hereto to the
same effect as if each such successor or assign were in each case named as a
party to this Mortgage.
This Mortgage may not be modified, amended, discharged, released nor any of
its provisions waived except by agreement in writing executed by Mortgagor and
Mortgagee and in accordance with the provisions of this Mortgage and the Trust
Indenture.
Separability Clause.
In case any provision in this Mortgage shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
Benefits of Mortgage.
Without limiting the generality of Section 1.12, nothing in this Mortgage,
express or implied, shall give to any Person, other than the parties hereto and
their successors and assigns, any benefit or any legal or equitable right,
remedy or claim under this Mortgage.
Governing Law.
This Mortgage shall be deemed to be a contract under the laws of the State
of New Jersey and shall be construed in accordance with and governed by the laws
of the State of New Jersey.
0.
1.
2.
3.
4.
5.
6.
7.
8.
Limitation on Liability.
A direct or indirect partner, director, officer, employee or stockholder,
as such, past, present or future of the Mortgagor or any successor entity shall
not have any personal liability in respect of the obligations under this
Mortgage by reason of his or its status as such partner, director, officer,
employee or stockholder except to the extent such is an Issuer or a Guarantor.
Each Holder by accepting a Security (as defined in the Trust Indenture) waives
and releases all such liability. Such waiver and release are part of the
consideration for the issuance of the Securities.
Provisions Required by Trust Indenture.
Whenever the provisions of this Mortgage and the provisions of the Trust
Indenture shall be inconsistent, the provisions of the Trust Indenture shall
govern.
Rights of Mortgagee.
Except as otherwise provided in Section 5 of the Collateral Agency
Agreement:
Mortgagee 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, note, other
evidence of indebtedness or other paper or document believed by it to be genuine
and to have been signed or presented by the proper party or parties;
any request or direction of Mortgagor mentioned herein shall be sufficiently
evidenced by a Mortgagor Request;
whenever in the administration of this Mortgage, Mortgagee shall deem it
desirable that a matter be proved or established prior to taking, suffering or
omitting any action hereunder, Mortgagee (unless other evidence be herein
specifically prescribed) may, in the absence of bad faith on its part, rely upon
an Officers' Certificate;
Mortgagee may consult with counsel and any 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 Mortgagee hereunder in
good faith and in reliance thereon;
Mortgagee shall not 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, approval, appraisal, bond,
debenture, note, coupon, security or other paper or document but Mortgagee, in
its discretion, may make such further inquiry or investigation into such facts
or matters as it may see fit, and, if Mortgagee shall determine to make such
further inquiry or investigation, it shall be entitled (subject to the express
limitations with respect thereto contained in this Mortgage) to examine the
books, records and premises of Mortgagor, personally or by agent or attorney;
Mortgagee may execute any of the trusts or powers hereunder or perform any
duties hereunder either directly or by or through agents or attorneys, and
Mortgagee shall not be responsible for any misconduct or negligence on the part
of any agent or attorney appointed with due care by it hereunder;
Mortgagee shall not be personally liable, in case of entry by it upon the
Trust Estate, for debts contracted or liabilities or damages incurred in the
management or operation of the Trust Estate; and
no provision of this Mortgage shall require Mortgagee to expend or risk its
own funds or otherwise incur any financial liability in the performance of its
obligations hereunder, or in the exercise of any of its rights or powers.
The provisions of this Section 1.12 shall apply to all Mortgage Documents.
Mortgage Subject to Casino Control Act.
Each provision of this Mortgage is subject to and shall be enforced in
compliance with the provisions of the New Jersey Casino Control Act.
Discharge of Lien.
If Mortgagor shall pay or cause to be paid, or there shall otherwise be
paid, to Mortgagee all amounts required to be paid by Mortgagor pursuant to the
this Mortgage and all Obligations pursuant to the Debt Documents, including,
without limitation, the Mortgage Notes and the Guarantee, shall have been
satisfied and (a) the conditions precedent for the Trust Indenture to cease,
determine and become null and void (except for any surviving rights of transfer
or exchange of the Mortgage Notes provided in the Trust Indenture and for the
obligation to pay the Trustee's fees and expenses provided in Section 8.7 of the
Trust Indenture) in accordance with Article Nine of the Trust Indenture shall
have occurred, or (b) there shall have occurred a Legal Defeasance (as defined
in Section 9.2 of the Trust Indenture) of the Mortgage Notes, or (c) there shall
have occurred a Covenant Defeasance (as defined in Section 9.3 of the Trust
Indenture), then in any such case Mortgagee shall promptly cancel and discharge
the Mortgage Documents, including, without limitation, this Mortgage, and any
financing statements filed in connection herewith and execute and deliver to
Mortgagor all such instruments as may be necessary, required or appropriate to
evidence such discharge and satisfaction of said Lien or Liens. In connection
with the disposition of all or any portion of the Trust Estate free and clear of
the Lien of this Mortgage in accordance with the terms of Section 4.3 of the
Trust Indenture, Mortgagee shall promptly execute and deliver to Mortgagor all
such instruments as may be necessary, required or appropriate to evidence the
release of such portion of the Trust Estate from the Lien of this Mortgage. Upon
such release, the terms, conditions and obligations hereunder shall no longer
apply to the portion of the Trust Estate so released and all defined terms
hereunder shall be deemed appropriately modified.
General Application.
The remedies of Mortgagee upon any default by Mortgagor in the fulfillment
of any of its obligations hereunder shall be limited in each instance by the
provisions of Section 1.10, whether or not the provisions providing for such
remedies explicitly refer to such Section.
The assertion of any rights upon any Default shall be subject in each
instance to, if required, the giving of any notice and the expiration of any
grace period provided for in Section 3.01 as a condition to such Default
becoming an Event of Default, unless the Trust Indenture Act requires otherwise,
in which case the Trust Indenture Act shall control.
For the purposes of this Mortgage, it is understood that an event which
does not materially diminish the value of Mortgagee's interest in the Trust
Estate shall not be deemed an "impairment of security," as that phrase is used
in this Mortgage.
Mortgage Deemed to be Security Agreement.
To the extent that the grant of a security interest in any portion of the
Trust Estate is governed by the Uniform Commercial Code, this Mortgage is hereby
deemed to be as well a security agreement under the Uniform Commercial Code for
the purpose of creating hereby a security interest in all of Mortgagor's right,
title and interest in and to said property, securing the obligations secured
hereby, for the benefit of Mortgagee.
ARTICLE TWO
RELEASE; SUBORDINATION
Possession by Mortgagor.
So long as there shall have been no acceleration of maturity of any
Indebtedness secured hereby, including, without limitation, the Mortgage Notes,
Mortgagor shall be suffered and permitted, with power freely and without let or
hindrance on the part of Mortgagee, subject to the provisions of this Mortgage
and the Trust Indenture, to possess, use, manage, operate and enjoy the Trust
Estate and every part thereof and to collect, receive, use, invest and dispose
of the rents, issues, tolls, profits, revenues and other income from the Trust
Estate or any part thereof, to use, consume and dispose of any consumables,
goods, wares and merchandise in the ordinary course of business of operating the
Casino Hotel and to adjust and settle all matters relating to choses in action,
leases and contracts.
Obsolete Property.
Mortgagor shall have the rights granted to it with respect to the
disposition of certain Tangible Personal Property secured hereby pursuant to
Section 4.3 of the Trust Indenture (but subject to all restrictions pertaining
thereto), the terms of which are incorporated herein by reference.
Mortgagee shall, from time to time, promptly execute any written instrument
in form satisfactory to Mortgagee to confirm the propriety of any action taken
by Mortgagor under this Section 2.02, upon receipt by Mortgagee of a Mortgagor
Request requesting the same, together with an Officers' Certificate stating that
the action so to be confirmed was duly taken in conformity with this Section
2.02, and that the execution of such written instrument is appropriate to
confirm the propriety of such action under this Section 2.02; provided, that
Mortgagee shall have no liability thereunder and all costs and expenses
(including, without limitation, reasonable attorneys' fees and disbursements)
shall be paid by Mortgagor.
F,F&E Financing Agreements.
Notwithstanding any provision contained in this Mortgage or the Trust
Indenture to the contrary, if Mortgagor has acquired or hereafter acquires
Tangible Personal Property and/or other items constituting operating assets
subject to any F,F&E Financing Agreement, or becomes the lessee under a lease
for any of the same and if the document evidencing such F,F&E Financing
Agreement prohibits subordinate Liens or the provisions of any such lease
prohibits any assignment thereof by the lessee, and if any such prohibition is
customary with respect to similar transactions of the lender or lessor (as
evidenced by an Officers' Certificate delivered to Mortgagee, together with such
other evidence as Mortgagee may reasonably request), as the case may be, then
the property so purchased or the lessee's interest in the lease, as the case may
be, shall be deemed to be Excepted Property. If any such F,F&E Financing
Agreement permits subordinate Liens then Mortgagee shall execute and deliver to
Mortgagor, at Mortgagor's expense, such documents as the holder of such F,F&E
Financing Agreement may reasonably request to evidence the subordination of the
Lien of this Mortgage and the Mortgage Documents to the Lien of such F,F&E
Financing Agreement.
Intentionally Omitted.
ARTICLE THREE
REMEDIES
Events of Default.
"Event of Default," whenever used herein, means an "Event of Default," as
defined in Section 7.1 of the Trust Indenture, shall occur and be continuing
(whatever the reason for such event and whether it shall be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body).
Application of Moneys Received by Mortgagee.
Any moneys received by Mortgagee pursuant to the provisions of this Article
Three (including moneys received after any action or act by Mortgagee under
Section 3.10) shall be applied by Mortgagee in accordance with the provisions of
Section 7.6 of the Trust Indenture.
Restoration of Rights and Remedies.
If Mortgagee has instituted any proceeding to enforce any right or remedy
under this Mortgage and such proceeding has been discontinued or abandoned for
any reason or has been determined adversely to Mortgagee, then and in every such
case Mortgagor and Mortgagee shall, subject to any determination in such
proceeding, be restored to their respective former positions hereunder, and
thereafter all rights and remedies of Mortgagee shall continue as though no such
proceeding had been instituted.
Rights and Remedies Cumulative.
No right or remedy herein conferred upon or reserved to Mortgagee is
intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at law
or in equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
Delay or Omission Not Waiver.
No delay or omission of Mortgagee to exercise any right or remedy accruing
upon an Event of Default shall impair any such right or remedy or constitute a
waiver of any such Event of Default or an acquiescence therein. Every right and
remedy given by this Article Three or by applicable law to Mortgagee may be
exercised, from time to time, and as often as may be deemed expedient, by
Mortgagee.
Undertaking for Costs.
If any action or proceeding shall be commenced (including, without
limitation, an action to foreclose this Mortgage or to collect the Indebtedness
or under the Guarantee secured hereby) to which action or proceeding Mortgagee
is made or becomes a party, or in which it becomes necessary in the opinion of
Mortgagee to defend or uphold the Lien of this Mortgage, then Mortgagor shall
pay to Mortgagee all expenses, including, without limitation, reasonable
attorneys, fees, disbursements and court costs incurred by Mortgagee in
connection therewith, together with interest at the rate then payable on such
Indebtedness, from the date of payment less the net amount received by
Mortgagee, as its interest may appear under any title insurance policy, and,
until paid, all such expenses, together with interest as aforesaid, shall be
secured by the Lien of this Mortgage.
Waiver of Appraisement and Other Laws.
To the full extent that it may lawfully so agree, Mortgagor will not at any
time insist upon, plead, claim or take the benefit or advantage of, any
appraisement, valuation, stay, extension or redemption law now or hereafter in
force, in order to prevent or hinder the enforcement of this Mortgage or the
absolute sale of the Trust Estate, or any part thereof, or the possession
thereof by any purchaser at any sale under this Article Three; and Mortgagor,
for itself and all who may claim under Mortgagor, so far as Mortgagor or they
now or hereafter may lawfully do so, hereby waives the benefit of all such laws.
Mortgagor, for itself and all who may claim under Mortgagor, waives, to the
extent that Mortgagor may lawfully do so, all right to have the property in the
Trust Estate marshalled upon any foreclosure hereof, and agrees that any court
having jurisdiction to foreclose this Mortgage may order the sale of the Trust
Estate as an entirety.
If any law in this Section 3.07 referred to and now in force, of which
Mortgagor or its successor or successors might take advantage despite this
Section 3.08, shall hereafter be repealed or cease to be in force, such law
shall not thereafter be deemed to constitute any part of the contract herein
contained or to preclude the application of this Section 3.07.
Entry.
Mortgagor agrees that upon the occurrence, and during the continuance, of
an Event of Default, Mortgagor, upon demand of Mortgagee, shall forthwith
surrender to Mortgagee the actual possession of, and it shall be lawful for
Mortgagee by such officers or agents as it may appoint to enter and take
possession of, the Trust Estate (and the books and papers of Mortgagor), and to
hold, operate and manage the Trust Estate (including the making of all needful
repairs, and such alterations, additions and improvements as Mortgagee shall
deem wise) and to receive the rents, issues, tolls, profits, revenues and other
income thereof, and, after deducting the costs and expenses of entering, taking
possession, holding, operating and managing the Trust Estate, as well as
payments for taxes, insurance and other proper charges upon the Trust Estate and
reasonable compensation to itself, its agents and counsel, to apply the same as
provided in Section 3.02; provided, however, that Mortgagee's rights under this
Section 3.08 shall be subject to the provisions of the New Jersey Casino Control
Act and Section 3.13. Whenever all that is then due upon the Debt Documents,
including without limitation, the Mortgage Notes and under any of the terms of
this Mortgage shall have been paid and all defaults hereunder shall have been
cured, Mortgagee shall surrender possession to Mortgagor.
Power of Sale; Suits for Enforcement.
If an Event of Default shall occur and be continuing, Mortgagee, with or
without entry, in its discretion, may:
sell, subject to any mandatory requirements of applicable law, the Trust
Estate as an entirety, or in such parcels, as Mortgagee may determine, to the
highest bidder at public auction at such place and at such time (which sale may
be adjourned by Mortgagee from time to time in its discretion by announcement at
the time and place fixed for such sale, without further notice) and upon such
terms as Mortgagee may fix and briefly specify in a notice of sale to be
published as required by law; or
proceed to protect and enforce its rights under this Mortgage by sale
pursuant to judicial proceedings or by a suit, action or proceeding in equity or
at law or otherwise, whether for the specific performance of any covenant or
agreement contained in this Mortgage or in aid of the execution of any power
granted in this Mortgage or for the foreclosure of this Mortgage or for the
enforcement of any other legal, equitable or other remedy, as Mortgagee shall
deem most effectual to protect and enforce any of the rights of Mortgagee; the
failure to join tenants shall not be asserted as a defense to any foreclosure or
proceeding to enforce the rights of Mortgagee.
Section 3.10 Incidents of Sale.
Upon any sale of any of the Trust Estate, whether made under the power of
sale hereby given or pursuant to judicial proceedings, to the extent permitted
by law:
(a) subject to the provisions of Section 3.13 and the receipt of any
required prior approvals of the New Jersey Casino Control Commission,
Mortgagee may bid for and purchase the property offered for sale, and upon
compliance with the terms of sale may hold, retain, possess and dispose of
such property, without further accountability, and may, in paying the
purchase money therefor, deliver the Mortgage Notes or any other Debt
Document or claims for interest thereon in lieu of cash to the amount which
shall, upon distribution of the net proceeds of such sale, be payable
thereon, and the Mortgage Notes or any other Debt Document, in case the
amounts so payable thereon shall be less than the amount due thereon, shall
be returned to Mortgagee after being appropriately stamped to show partial
payment;
(b) Mortgagee may make and deliver to the purchaser or purchasers a
good and sufficient deed, bill of sale and instrument of assignment and
transfer of the property sold;
(c) Mortgagee is hereby irrevocably appointed the true and lawful
attorney of Mortgagor, in its name and stead, to make all necessary deeds,
bills of sale and instruments of assignment and transfer of the property
thus sold; and for that purpose it may execute all necessary deeds, bills
of sale and instruments of assignment and transfer, and may substitute one
or more persons, firms or corporations with like power, Mortgagor hereby
ratifying and confirming all that its said attorney or such substitute or
substitutes shall lawfully do by virtue hereof; but if so requested by
Mortgagee or by any purchaser, Mortgagor shall ratify and confirm any such
sale or transfer by executing and delivering to Mortgagee or to such
purchaser or purchasers all proper deeds, bills of sale, instruments of
assignment and transfer and releases as may be designated in any such
request;
(d) all right, title, interest, claim and demand whatsoever, either at
law or in equity or otherwise, of Mortgagor of, in and to the property so
sold shall be divested and such sale shall be a perpetual bar both at law
and in equity against Mortgagor, its successors and assigns, and against
any and all persons claiming or who may claim the property sold or any part
thereof from, through or under Mortgagor, its successors and assigns; and
(e) the receipt of Mortgagee or of the officer making such sale shall
be a sufficient discharge to the purchaser or purchasers at such sale for
his or their purchase money and such purchaser or purchasers and his or
their assigns or personal representatives shall not, after paying such
purchase money and receiving such receipt, be obliged to see to the
application of such purchase money, or be in anywise answerable for any
loss, misapplication or non-application thereof.
Section 3.11. Receiver.
Upon the occurrence of an Event of Default and commencement of judicial
proceedings by Mortgagee to enforce any right under this Mortgage, Mortgagee
shall be entitled, as against Mortgagor, without notice or demand and without
regard to the adequacy of the security for the Mortgage Notes, the Guarantee or
any other Debt Document or the solvency of Mortgagor, to the appointment of a
receiver of the Trust Estate, and of the rents, issues, profits, revenues and
other income thereof; provided, however, that Mortgagee's rights under this
Section 3.11 shall be subject to the provisions of the New Jersey Casino Control
Act and Section 3.13 hereof.
Section 3.12. Suits to Protect the Trust Estate.
Mortgagor hereby acknowledges the right of Mortgagee, in the name and on
behalf of Mortgagor, (a) to appear in and defend any action or proceeding
brought with respect to the Trust Estate or any part thereof and (b) upon 5
days' prior notice to Mortgagor (or such shorter period or without notice if
deemed necessary and appropriate by Mortgagee), Mortgagee shall have power to
institute and to maintain such proceedings as Mortgagee may deem necessary and
appropriate, but in the case of (a) and (b) to prevent any impairment of
security or any impairment of the Trust Estate in all cases by any acts which
may be unlawful or in violation of this Mortgage and to protect Mortgagee's
interests in the Trust Estate and in the rents, issues, profits, revenues and
other income arising therefrom, including the right to institute and maintain
proceedings to restrain the enforcement of 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 be materially prejudicial to the interests of
Mortgagee.
Section 3.13. Management of the Premises.
Without limiting the generality of any other provision of this Article
Three, following an Event of Default and the taking of possession of the Trust
Estate or any part thereof by Mortgagee and/or the appointment of a receiver of
the Trust Estate or any part thereof, Mortgagee or any such receiver shall be
authorized, in addition to the rights and powers of Mortgagee and such receiver
set forth elsewhere in this Mortgage, to take any action permitted under Article
Seven of the Trust Indenture.
ARTICLE FOUR
CONSOLIDATION, MERGER, CONVEYANCE,
TRANSFER OR LEASE
01. Consolidation, Merger, Conveyance or Transfer only on Certain Terms.
Mortgagor shall be bound by all provisions applicable to Mortgagor in
Section 13.6 of the Trust Indenture, the terms of which are incorporated herein
by reference.
ARTICLE FIVE
COVENANTS AND REPRESENTATIONS OF MORTGAGOR
01. Performance of Obligations.
Mortgagor shall duly and punctually pay and perform the Obligations in
accordance with the terms of the Debt Documents to which it is a party
(including, without limitation, Article Thirteen of the Trust Indenture).
02. F,F&E Financing Agreements.
Mortgagor shall comply with all of the terms and conditions set forth in
any F,F&E Financing Agreements before the expiration of any applicable notice
and cure periods contained in any such F,F&E Financing Agreements.
03. Limitations on Liens and Transfers.
(a) Except as otherwise expressly permitted under this Mortgage and the
Trust Indenture (including, without limitation, Article Five of the Trust
Indenture), Mortgagor shall not create, incur, suffer or permit to be created or
incurred or to exist any Lien on all or any portion of the Trust Estate, other
than Permitted Liens.
(b) The Lien of this Mortgage shall be subject and subordinate to the Lien
of any Existing Encumbrances and the Permitted Liens described in subsections
(a) (other than with respect to Refinancing Indebtedness of the Securities (as
defined in the Trust Indenture)), (c) (but only to the extent that such F,F&E
Financing Agreement requires the Lien of this Mortgage to be subordinate
thereto), (i) and (j) (but only to the extent that such Acquired Indebtedness
(as defined in the Trust Indenture) requires the Lien of this Mortgage to be
subordinate thereto) of the definition of Permitted Lien, to the extent that
each thereof encumbers Mortgagor's interest in the Trust Estate or any part
thereof. The foregoing provisions of this Section 5.03(b) shall be
self-operative and no further instrument shall be required to give effect to
such subordination. Mortgagee shall, however, from time to time, after receipt
of a Mortgagor Request therefor (accompanied by an Officers' Certificate stating
that said conditions have been satisfied) execute instruments in form and
substance reasonably satisfactory to the holder of a particular Superior
Mortgage confirming such subordination.
(c) Mortgagor shall not sell, assign, lease or otherwise transfer all or
any portion of the Trust Estate or any interest therein (including, without
limitation, any interest in the Ground Leases) in violation of the terms of this
Mortgage or the terms of the Trust Indenture (including, without limitation,
Sections 4.3 and 13.6 of the Trust Indenture). Without limiting the generality
of the foregoing, Mortgagor shall not separate, or attempt to separate, its
ownership of its interest in the Ground Leases from the ownership of the
buildings constituting the Casino Hotel or any part thereof. Notwithstanding the
foregoing,
Mortgagor shall have the right, at any time and from time to time, unless an
Event of Default shall have occurred and be continuing, without any release from
or consent by Mortgagee, to grant Permitted Liens; provided, (i) that none of
the same will reduce or impair, in any material respect, (A) the value or
usefulness of the Trust Estate or (B) the normal operation of the Casino Hotel
in accordance with all Legal Requirements and all Permits, (ii) no Event of
Default has occurred and is continuing and (iii) Mortgagor shall promptly
deliver to Mortgagee a duplicate original of the instrument, if any, pursuant to
which such grant is to be made, and such other instruments, certificates and
opinions as Mortgagee may reasonably request. The foregoing provisions of this
Section 5.03(c) shall be self-operative and no further instrument shall be
required to evidence the consent of Mortgagee to the grant or other conveyance
of such rights-of-way or easements. Mortgagee shall, however, from time to time,
after receipt of a Mortgagor Request therefor (accompanied by an Officers'
Certificate stating that said conditions have been satisfied) execute
instruments in form and substance reasonably satisfactory to Mortgagee
confirming the permissibility of such grant or other conveyance but only with
respect to the Permitted Liens incurred after the date hereof described in
subsections (a) (but only with respect to Refinancing Indebtedness), (d), (e),
(i), (j) and (k) of the definition of Permitted Liens.
04. Environmental.
Without limiting the generality of any other provision of this Mortgage,
Mortgagor covenants, represents and warrants to Mortgagee as follows:
(a) Mortgagor shall comply with any and all federal, state and local
environmental legislation, rules, and regulations in effect as of the date of
this Mortgage and subsequent thereto, including, without limitation, the Spill
Compensation and Control Act (N.J.S.A. 58:10-23.11 et seq.) (the "Spill Act");
the Industrial Site Recovery Act (N.J.S.A. 13:lK-6 et seq.) ("ISRA"); the Solid
Waste Management Act (N.J.S.A. 13:E-1 et seq.); the Resource, Conservation and
Recovery Act (42 U.S.C. Section 6901 et seq.) ("RCRA"); the Comprehensive
Environmental Response, Compensation and Liability Act (42 U.S.C. Section 9601
et seq.) ("CERCLA"), each as amended, and such other environmental legislation,
rules and regulations, as are in or may come into effect and apply to (i)
Mortgagor and/or Mortgagee with respect to the Premises or (ii) the transactions
contemplated hereby, and as to any occupants or users of the collateral, whether
as lessees, tenants, licensees or otherwise, Mortgagor shall use its best
efforts to cause same to comply with said legislation, rules and regulations.
Mortgagor agrees to pay all costs required in connection with compliance with
the foregoing legislation, rules and regulations.
(b) Mortgagor has not used in the past, nor shall Mortgagor use in the
future, the Premises for the purpose of refining, producing, storing, handling,
transferring, processing or transporting "Hazardous Substances", as such term is
defined in ISRA, the Spill Act, CERCLA or the regulations relating thereto,
except that Mortgagor and its subsidiaries have used, and Mortgagor may continue
in the future to use, substances in the operation and maintenance of the
Premises, including, without limitation, heating oil, gasoline and cleaning
chemicals which could be considered as "Hazardous Substances" under the
preceding definition.
(c) To the best of Mortgagor's knowledge, after due inquiry and
investigation, none of the real property owned, leased and/or occupied by
Mortgagor and located in the State of New Jersey, including, without limitation,
the Premises, has been or is now being used as a "Major Facility" as such term
is defined in N.J.S.A. 58:10-23.llb(l). Mortgagor will not use the Premises in
the future as a "Major Facility".
(d) To the best of Mortgagor's knowledge, after due inquiry and
investigation, no Lien has been attached to any revenues or any real or personal
property owned by Mortgagor or the Premises, as a result of the Chief Executive
of the New Jersey Spill Compensation Fund expending monies from said fund to pay
for "Cleanup Costs", as such term is defined in N.J.S.A. 58:10-23.llb(d),
arising from an intentional or unintentional action or omission of Mortgagor or
any previous owner and/or operator of such real property.
(e) There is no asbestos or asbestos containing material on the Premises
currently owned, operated or leased by Mortgagor. To the best of Mortgagor's
knowledge, after due inquiry and investigation, there are no underground storage
tanks located at or on the Premises. Mortgagor has not installed or placed, or
permitted to be installed or placed, any underground storage tanks at or on the
Premises. Underground storage tanks shall have the definition as set forth in
N.J.S.A. 58:10A-22(p).
(f) Except as previously provided to Mortgagee, Mortgagor has not received
a summons, citation, directive, letter, other written communication, or, to the
best of its knowledge, any oral communication ("Communication"), and in any
event, no such Communication remains outstanding, from the New Jersey Department
of Environmental Protection or from any other person, firm or corporation
concerning any intentional or unintentional action or omission on Mortgagor's
part resulting in the releasing, spilling, leaking, pumping, pouring, emitting,
emptying or dumping of "Hazardous Substances", as such term is defined in
N.J.S.A. 58:10-23.llb(k), into the waters or onto the lands of the State of New
Jersey, or into the waters outside the jurisdiction of the State of New Jersey,
in either case resulting in damage to the lands, waters, fish, shellfish,
wildlife, biota,
air and other resources owned, managed, held in trust or otherwise controlled by
the State of New Jersey.
(g) In connection with any purchase of the Premises or any business or
assets located thereon or any closing, terminating or transferring of ownership
or operations of any "industrial establishment", as that term is defined in ISRA
or in the predecessor statute to ISRA, occurring on or after December 31, 1983,
Mortgagor required that the owner and or operator of the industrial
establishment comply with the provisions of ISRA or in the predecessor statute
and the owner and or operator did comply therewith.
(h) Upon the occurrence of an Event (as hereinafter defined), Mortgagee
shall have the right to have its consultants perform a comprehensive
environmental audit of the Premises. Such audit shall be conducted by an
environmental consultant chosen by Mortgagee and may include a visual survey, a
record review, an area reconnaissance assessing the presence of hazardous or
toxic waste or substances, PCBs or storage tanks at the Premises, an asbestos
survey of the Premises, which may include random sampling of the improvements
and air quality testing, and such further site assessments as Mortgagee may
reasonably require due to the results obtained from the foregoing. Mortgagor
grants Mortgagee, its agents, consultants and contractors the right to enter the
Premises as reasonable or appropriate for the circumstances for the purposes of
performing such studies and the reasonable cost of such studies shall be due and
payable by Mortgagor to Mortgagee upon demand and shall be secured by the Lien
of this Mortgage. Mortgagee shall direct the environmental consultant to use its
best efforts not to hinder Mortgagor's or any tenant's operations when
conducting such audit, sampling or inspections. For purposes of this paragraph,
the term "Event" shall mean (i) the occurrence of any Event of Default, (ii) the
issuance of any summons, citation, directive or similar written notice from the
New Jersey Department of Environmental Protection or from any other local, state
or federal entity or from any other person, firm or corporation concerning any
alleged material violation of any and all federal, state and local environmental
legislation, rules and regulations in effect as of the date of this Mortgage and
subsequent thereto or (iii) the initiation of any legal action, suits or other
legal or administrative proceedings relating to or in connection with any
alleged violation of any and all federal, state and local environmental
legislation, rules and regulations in effect as of the date of this Mortgage and
subsequent thereto. By undertaking any of the measures identified in and
pursuant to this subsection (h), Mortgagee shall not be deemed to be exercising
any control over the operations of Mortgagor or the handling of any
environmental matter or hazardous wastes or substances of Mortgagor for purposes
of incurring or being subject to liability therefor.
(i) If a Lien shall be filed against the Premises by the New Jersey
Department of Environmental Protection, pursuant to and in
accordance with the provisions of N.J.S.A. 58:10-23.llf(f), as a result of the
Chief Executive of the New Jersey Spill Compensation Fund having expended monies
from said fund to pay for "Damages", as such term is defined in N.J.S.A.
58:10-23.llg, and/or "Cleanup and Removal Costs", as such term is defined in
N.J.S.A. 58:10-23(b), arising from an intentional or unintentional action or
omission of Mortgagor resulting in the releasing, spilling, pumping, pouring,
emitting, emptying or dumping of "Hazardous Substances", as such term is defined
in N.J.S.A. 58:10-23.11(b)k into waters of the State of New Jersey or onto lands
from which it might flow or drain into said waters, then, unless there is a good
faith basis for contesting such Lien and Mortgagor is so contesting such Lien in
accordance with Section 5.09, Mortgagor shall, within 30 days from the date that
Mortgagor is given notice that the Lien has been placed against the Premises or
within such shorter period of time if the State of New Jersey has commenced
steps to cause the Premises to be sold pursuant to the Lien, either (i) pay the
claim and remove the Lien from the Premises, or (ii) furnish (A) a bond
satisfactory to a title company selected by Mortgagee (the "Title Insurer") in
the amount of the claim out of which the Lien arises, (B) to the Trustee, a cash
deposit (which may be disbursed by the Trustee in its sole discretion) in the
amount of the claim out of which the Lien arises, or (C) other security
reasonably satisfactory to Mortgagee in an amount sufficient to discharge the
claim out of which the Lien arises.
(j) Mortgagor shall use its best efforts to cause compliance by all lessees
with all applicable Legal Requirements relating to environmental protection.
(k) Mortgagor shall promptly provide Mortgagee with copies of all notices
which allege or identify any actual or potential violation or noncompliance
received by or prepared by or for Mortgagor in connection with ISRA, CERCLA, the
Spill Act, RCRA or any other environmental law, rule or regulation relating to
the Premises. For purposes of this paragraph, the term "notice" shall mean any
summons, citation, directive, order, claim, pleading, letter, application,
filing, report, findings, declarations or other materials pertinent to
compliance of the Trust Estate and Mortgagor with such environmental laws, rules
or regulations.
(l) If this Mortgage is foreclosed, Mortgagor shall deliver the Premises in
compliance with all applicable federal, state and local environmental laws,
ordinances, rules and regulations, including, without limitation, ISRA.
(m) Without limiting the generality of Section 5.22, Mortgagor agrees to
defend, indemnify and save Mortgagee harmless from and against any loss or
liability, cost or expense (including, without limitation, reasonable attorneys'
fees, consultants' fees, disbursements and court costs) arising out of, or
incurred in connection with, Mortgagor's misrepresentation, or
failure promptly (but in no event to exceed the time period permitted by law) to
comply with and perform its obligations, under this Section 5.04. The provisions
of this subsection (m) shall survive any transfer of the Premises, including a
transfer after a foreclosure of this Mortgage.
05. Pari Passu Liens.
Any Liens permitted by the terms of the Trust Indenture and the Collateral
Agency Agreement to be on a parity with the Lien of this Mortgage may be on a
parity with the Lien of this Mortgage only if such Lien and the Indebtedness, if
any, secured thereby shall in all respects be in accordance with the provisions
of the Collateral Agency Agreement and the Trust Indenture.
06. Warranty of Leasehold Estate and Title.
Mortgagor represents and warrants that as of the date hereof:
(a) Mortgagor is duly authorized under the laws of the State of New
Jersey and all other applicable laws to execute and deliver the Mortgage
Documents, and all corporate and partnership action on Mortgagor's part
necessary for the valid execution and delivery of the Mortgage Documents
has been duly and effectively taken;
(b) Mortgagor is the lawful owner and is lawfully seized and possessed
of the Owned Land and all buildings and improvements thereon, free and
clear of all Liens, charges or encumbrances, other than the Mortgage
Documents and the Existing Encumbrances;
(c) Mortgagor is the holder of and has good and marketable title to
the leasehold interests and leasehold estates under all existing Facility
Leases and the easement interests and easement estates under the Convention
Hall Easements, subject to no Lien, encumbrance or charge other than the
Mortgage Documents and the Existing Encumbrances;
(d) (i) each existing Facility Lease is a valid and subsisting demise
of the respective Leased Land for the term therein set forth, and without
limiting the generality of the foregoing, all conditions to the
effectiveness of the Ground Leases contained in Article Fifty-First of the
Ground Leases have been either waived or satisfied, (ii) there are no
defaults under any Facility Lease by any lessor or the lessee as to which
written notice has been given to or by the lessee, (iii) Mortgagor has
delivered to Mortgagee a true and correct copy of each existing Facility
Lease, and all modifications, amendments and supplements thereto, and (iv)
each existing Facility Lease is in full force and effect and has not been
modified, amended or supplemented, except as described on Schedule 2;
(e) Mortgagor has good title to the Operating Assets, subject to no
Lien, encumbrance or charge, other than the Mortgage Documents and the
Existing Encumbrances;
(f) Mortgagor has good and lawful right and authority to execute this
Mortgage and to grant, bargain, sell, alien, convey, assign, transfer,
hypothecate, pledge, mortgage and confirm the Trust Estate as provided
herein (including, without limitation, with respect to the Operating Assets
and Facility Leases), without the consent of any third party, other than
governmental authorities and certain Superior Mortgage holders and other
secured Persons but any applicable or necessary consent or approval of any
such governmental authority, Superior Mortgage holders and other such
Persons has been given or waived in accordance with applicable law at or
prior to the execution and delivery of this Mortgage, and upon the proper
recording and indexing hereof, this Mortgage constitutes a valid first
mortgage Lien and first priority security interest in the Trust Estate,
subject only to Existing Encumbrances (including, without limitation, the
Superior Mortgages); and
(g) (i) all amounts due under the Superior Mortgages and the
instruments secured thereby have been paid to the extent they were due and
payable to the date hereof, and (ii) there is no existing default under
said Superior Mortgages or instruments, or in the performance of any of the
terms, covenants, conditions or warranties therein on the part of Mortgagor
to be performed and observed thereunder as to which written notice has been
given to Mortgagor.
Mortgagor hereby does and shall forever warrant and defend (a) the title to
the Trust Estate (including, without limitation, Mortgagor's leasehold estate
under, and the lessee's interests in, each existing Facility Lease) (subject to
Permitted Liens) and (b) the priority of the Lien of the Mortgage Documents
thereon (subject to Permitted Liens other than Restricted Encumbrances), against
the claims and demands of all persons whomsoever, at Mortgagor's sole cost and
expense. No title company may rely on any of the foregoing representations or
warranties or make any claim in connection therewith by way of subrogation or
otherwise.
07. After-Acquired Property; Further Assurances; Recording.
All property, real, personal or mixed or any interest therein (other than
Excepted Property), of every kind and description and wheresoever situate, which
may be hereafter acquired by Mortgagor, the Company or any of its Subsidiaries
(including, without limitation, fee title to any Leased Land) which shall be
used or materially useful in connection with the Trust Estate or any part
thereof or shall otherwise materially relate to the operation of the Casino
Hotel or which shall be acquired by Mortgagor or the Company or any of its
Subsidiaries from proceeds due to an Event of Loss with respect to the Premises
in accordance with the provisions of Section 5.15 of the Trust Indenture, shall
immediately upon the acquisition thereof by Mortgagor, the Company or any of its
Subsidiaries, and without any further mortgage, conveyance or assignment, become
subject to the Lien of this Mortgage as fully as though now owned by Mortgagor
and covered by the Granting Clauses. Nevertheless, Mortgagor, the Company or any
of its Subsidiaries, as applicable, shall do, execute, acknowledge and deliver
all and every such further acts, conveyances, mortgages, financing statements
and assurances as Mortgagee shall require for accomplishing the express purposes
of this Mortgage and the Trust Indenture.
Mortgagor shall, as provided in Section 5.13, from time to time subject to
the Lien of this Mortgage its right, title and interest under all Leases.
Mortgagor shall use reasonable efforts to insure that all Operating Assets
or any interest therein hereafter acquired by Mortgagor, the Company or any of
its Subsidiaries shall be assignable to Mortgagee, and to the extent such
assignment to Mortgagee requires the consent of any governmental authority or
any other Person, Mortgagor shall use all reasonable efforts to obtain such
consent or a waiver thereof.
Mortgagor, the Company or any of its Subsidiaries, as applicable, shall
cause this instrument (or other appropriate instruments) and all other
instruments of further assurance, including all financing statements and
continuation statements covering security interests in personal property, to be
promptly recorded, registered and filed, and at all times to be kept recorded,
registered and filed, and shall execute and file such financing statements and
cause to be issued and filed such continuation statements, all in such manner
and in such places as may be required by law or as requested by Mortgagee to
fully preserve and protect the rights of Mortgagee as a secured party under the
Uniform Commercial Code to all property comprising the Trust Estate (to the
extent a grant of a security interest therein is governed by the Uniform
Commercial Code) and to perfect, preserve and protect the Lien of this Mortgage
as a valid first, (other than with respect to Acquired Indebtedness
permitted by the terms of Section 5.11 of the Trust Indenture) mortgage Lien of
record and a valid first (other than with respect to Acquired Indebtedness
permitted by the terms of Section 5.11 of the Trust Indenture) priority security
interest on the Trust Estate subject to Permitted Liens (including, without
limitation, the Superior Mortgages), other than Restricted Encumbrances.
Mortgagor shall pay all filing or recording fees, and all expenses incident
to the execution and delivery of this Mortgage, any financing statement or
continuation statement with respect to the personal property constituting part
of the Trust Estate, and any instrument of further assurance, and all federal,
state, county and municipal stamp taxes and other taxes, duties, imposts,
assessments and charges arising out of or in connection with the execution and
delivery of this Mortgage, any financing statement or continuation statement
with respect to the personal property constituting part of the Trust Estate or
any instrument of further assurance.
Mortgagor shall furnish to Mortgagee promptly after the acquisition
hereafter by Mortgagor, the Company or any of its Subsidiaries of any fee
interest or leasehold interest in real property (i) material to the operation of
Mortgagor, (ii) which is necessary for the normal operation of the Casino Hotel
in accordance with all Legal Requirements and all Permits or (iii) which shall
be acquired by Mortgagor or the Company or any of its Subsidiaries from proceeds
due to an Event of Loss with respect to the Premises in accordance with the
provisions of Section 5.15 of the Trust Indenture, (a) a mortgagee policy of
title insurance on the most recent form of American Land Title Association
standard loan policy, extended coverage, which policy shall (i) contain all such
endorsements and affirmative insurance, to the extent reasonably applicable and
available at the then standard published rates for the State of New Jersey (or
if there shall be no such published rates, at commercially reasonable premiums),
as is contained in the Original Policy and (ii) evidence that title to such real
property is subject to no Liens or encumbrances, other than Permitted Liens,
which would (A) render title unmarketable or (B) violate any other provision of
this Mortgage or the Trust Indenture, (b) an as-built survey meeting the
"Minimum Standard Detail Requirements for ALTA/ACSM Land Title Surveys",
certified within 60 days prior to the acquisition date by a surveyor licensed in
the State of New Jersey using the same form of certification as that contained
in the surveys of the Premises delivered to Mortgagee on the date of this
Mortgage and (c) an Officers' Certificate certifying that the mortgagee policy
of title insurance and survey delivered pursuant to clauses (a) and (b) comply,
respectively, with the provisions of such clauses (a) and (b).
Notwithstanding anything contained herein or in the Trust Indenture to the
contrary, neither Mortgagor, the Company nor any of its Subsidiaries may acquire
any property, real,
personal or mixed or any interest therein (other than Excepted Property), of
every kind and description and wheresoever situate (including, without
limitation, fee title to any Leased Land), which shall be used or materially
useful in connection with the Trust Estate or any part thereof or shall
otherwise materially relate to the operation of the Casino Hotel or which shall
be acquired by Mortgagor or the Company or any of its Subsidiaries from proceeds
due to an Event of Loss with respect to the Premises in accordance with the
provisions of Section 5.15 of the Trust Indenture, unless Mortgagor, the Company
or any of its Subsidiaries, as applicable, shall comply with the provisions of
this Section 5.07.
08. Payment of Taxes and Certain Claims; Maintenance of Properties; Compliance
with Legal Requirements. ts
Mortgagor shall:
(a) subject to the provisions of Section 5.09, pay or cause to be paid
before the date on which any fine, penalty, interest or cost may be added
for nonpayment (but no later than when the same are payable by Mortgagor
pursuant to any Superior Instrument Requirement), all taxes (including,
without limitation, real estate taxes, personal or other property taxes and
all sales, value added, use and similar taxes), assessments (including,
without limitation, all assessments for public improvements or benefits,
whether or not commenced or completed prior to the date hereof and whether
or not to be completed prior to the satisfaction of this Mortgage), water,
sewer or other rents, rates and charges, excises, levies, license fees,
permit fees, inspection fees and other authorization fees and other
charges, in each case whether general or special, ordinary or
extraordinary, foreseen or unforeseen, of every character (including,
without limitation, all interest, additions to tax and penalties thereon),
that may be assessed, levied, confirmed or imposed on or in respect of or
be a Lien upon (i) the Trust Estate (including, without limitation, the
Leased Land) or any part thereof or any rent therefrom or any estate, right
or interest therein, or (ii) any acquisition, occupancy, use, leasing, or
possession of or activity conducted on the real property or any part
thereof included in the Trust Estate or any gross receipts thereof or of
the rent therefrom (all of the foregoing being referred to collectively as
"Impositions"). Notwithstanding the foregoing or any other provision of
this Mortgage or the Trust Indenture, Mortgagor shall not be required to
pay any income, profits or revenue tax upon the income of Mortgagee or the
Holders nor any franchise, excise, corporate, estate, inheritance,
succession, capital levy or transfer tax of Mortgagee or the Holders nor
any interest, additions to tax or penalties in respect thereof, unless such
tax is imposed, levied or assessed in substitution for any Imposition that
Mortgagor is required to pay pursuant to this Section 5.08. Mortgagor shall
deliver to Mortgagee, at Mortgagee's request, official receipts or other
proof evidencing payments of any Impositions in accordance with the
requirements of this Section 5.08. Mortgagor shall not be entitled to any
credit for taxes or assessments paid against the Mortgage Notes;
(b) except for such property which Mortgagor may dispose of or replace
pursuant to Section 2.02 and the terms of the Trust Indenture, maintain and
keep all of Mortgagor's properties used or useful in the conduct of
Mortgagor's business, including, without limitation, the Casino Hotel and
all Tangible Personal Property, in such good repair, working order and
condition, except for reasonable wear and use, and shall make or cause to
be
made all such needful and proper repairs, renewals and replacements thereto
consistent with the standards of first-class casino and hotel complexes in
Atlantic City, New Jersey;
(c) occupy and continuously operate the Casino Hotel and keep the
Casino Hotel supplied with Tangible Personal Property, all in a manner
consistent with the standards of first-class casino and hotel complexes in
Atlantic City, New Jersey;
(d) subject to the provisions of Section 5.09, (i) comply with all
Legal Requirements and Insurance Requirements, whether or not compliance
therewith shall require structural changes in the buildings and
improvements included in the Trust Estate or interfere with the use and
enjoyment of the Trust Estate or any part thereof, (ii) procure, maintain
and comply with all Permits required for (1) the use of the Casino as a
gaming and gambling facility, (2) the on-premises consumption of alcoholic
beverages at the Casino Hotel and (3) any other use of the Trust Estate or
any part thereof then being made, and for the proper erection,
installation, operation and maintenance of the improvements or any part
thereof, (iii) comply with all obligations of Mortgagor under, and keep in
full force and effect, all easements which in any respect inure to the
benefit of, or otherwise affect, the Trust Estate or any part thereof, if
the failure to comply with the same would impair Mortgagee's security
hereunder, and (iv) without limiting the generality of clause (iii), comply
with any instruments of record at the time in force affecting the Trust
Estate or any part thereof, if the failure to comply with the same would
impair Mortgagee's security hereunder. Without limiting the generality of
the foregoing, Mortgagor represents and warrants that at the time of the
execution of this Mortgage, Mortgagor is in compliance with the
requirements of clauses (i), (ii), (iii) and (iv) above; and
(e) in the event of the passage after the date of this Mortgage of any
law of the State of New Jersey, or any other governmental entity, changing
in any way the laws now in force for the taxation of mortgages, or debts
secured thereby, for federal, state or local purposes, or the manner of the
operation of any such taxes, so as to affect the interest of Mortgagee, pay
the full amount of such new or additional taxes.
09. Permitted Contests.
Notwithstanding anything in this Mortgage to the contrary, Mortgagor, at
Mortgagor's expense, may contest by appropriate legal proceedings conducted in
good faith and with due diligence, the amount or validity or application, in
whole or in part, of any Imposition or Lien therefor or any Legal Requirement or
Insurance Requirement or the application of any instrument of record (including,
without limitation, any Superior Instrument Requirement) affecting the Trust
Estate or any part thereof or any claims of holders of F,F&E Financing
Agreements, mechanics, materialmen, suppliers, or vendors or Lien therefor, and
may withhold payment of the same pending such proceedings if permitted by law,
or make payment under protest, or defer compliance with any such Legal
Requirement, any such Insurance Requirement or the terms of any such instrument,
and the same shall not be a Default hereunder; provided, that (a) in the case of
any Impositions or Lien therefor or any claims of mechanics, materialmen,
suppliers or vendors or Lien therefor, such proceedings shall suspend the
collection thereof from each of Mortgagor, Mortgagee, the Holders, the Secured
Beneficiaries and the Trust Estate, (b) neither the Trust Estate nor any
interest therein would be in any significant danger of being sold, forfeited, or
lost, (c) such action will not result in (i) the termination of any Facility
Lease or (ii) the holder of any Superior Mortgage having a right to exercise any
rights or remedies thereunder, (d) in the case of a Legal Requirement, neither
the Secured Beneficiaries, including, without limitation, the Holders, nor the
Mortgagee shall be in any significant danger of any civil liability or any
danger of any criminal liability, and the failure of Mortgagor to comply with
such Legal Requirement shall not affect the continuance in good standing of any
Permit or result in the suspension, termination, non-renewal or material adverse
modification of any Permit, and (e) in the case of an Insurance Requirement, the
failure of Mortgagor to comply therewith shall not affect the validity of any
insurance required to be maintained by Mortgagor hereunder.
10. Mechanics' and Other Liens.
Mortgagor shall cause to be removed, all statutory Liens of carriers,
warehousemen, mechanics, landlords, laborers, materialmen, repairmen or other
like Liens arising by operation of law in the ordinary course of business and
consistent with industry practices and Liens on deposits made to obtain the
release of such Liens if (i) the underlying obligations are overdue for a period
of more than 60 days or (ii) such Liens are not being contested in good faith
and by appropriate proceedings by the Company or any of its Subsidiaries and
adequate reserves with respect thereto are maintained on the books of the
Company or any of its Subsidiaries, as the case may be, in accordance with GAAP
and the provisions of Section 5.09 and in general shall do or cause to be done
everything necessary so that the Lien hereof shall be fully preserved, at the
cost of Mortgagor, without expense to Mortgagee.
11. To Insure.
(a) Mortgagor, at Mortgagor's expense, shall maintain with Insurers:
(i) insurance with respect to Mortgagor's insurable properties
constituting a part of the Trust Estate against loss or damage by fire,
lightning, and other risks from time to time included under "all-risk"
policies and against loss or damage by sprinkler leakage, water damage,
collapse, malicious mischief and explosion in respect of any steam and
pressure boilers and similar apparatus located on such insurable
properties, in amounts at all times sufficient to prevent Mortgagor from
becoming a coinsurer within the terms of the applicable policies, but in
any event such insurance shall be maintained in not less than the greatest
of the following (the "Insurance Amount"): (A) 100% of the then Full
Insurable Value of such insurable properties, determined from time to time
(but not less frequently than once in any 36 calendar months), by an
Independent appraiser or Insurer, (B) the then outstanding principal amount
of Indebtedness under the Debt Documents or (C) the amount required to be
maintained pursuant to the Material Instrument Requirements;
(ii) war risk insurance as and when such insurance is obtainable from
the United States of America or any agency thereof as promptly as
reasonably practicable after the same becomes so obtainable, in an amount
not less than the Insurance Amount, or, if such insurance cannot be
obtained in an amount not less than the Insurance Amount, in such lesser
amount as may then be so obtainable;
(iii) comprehensive general liability insurance, including, without
limitation, blanket contractual liability
coverage, broad form property damage, independent contractor's coverage and
personal injury coverage against any and all claims arising out of or
connected with the possession, use,, leasing, operation or condition of
such insurable properties, in an amount not less than $100,000,000 combined
single limit coverage for personal injury and property damage with respect
to any one occurrence, which may be under an umbrella policy. Anything
contained in this clause (iii) to the contrary notwithstanding, the
Material Instrument Requirements with respect to the kinds and amount of
insurance described in this clause (iii) shall be satisfied by Mortgagor;
(iv) workers' compensation insurance to the extent required by law;
(v) business interruption insurance covering not less than 6 months of
loss;
(vi) to the extent available for a commercially reasonable premium,
flood insurance in an amount not less than the Insurance Amount, or, if
such insurance cannot be obtained in an amount not less than the Insurance
Amount, such lesser amount as may then be so obtainable but in no event
less than $100,000,000; and
(vii) such other insurance with respect to such insurable properties
against loss or damage of the kinds (A) from time to time customarily
insured against by persons owning or using first-class casino and hotel
complexes in Atlantic City, New Jersey and (B) required to be maintained
pursuant to any Material Instrument Requirements.
Notwithstanding the foregoing, to the extent not violative of any Material
Instrument Requirements, Mortgagor may maintain deductibles with respect to the
insurance policies described in clauses (i), (ii), (iii), (v), (vi) and (vii)
above in accordance with standard industry practice with respect to the
operation of a first-class casino hotel.
(b) (i) Each policy of insurance maintained by Mortgagor pursuant to
Section 5.11(a) shall, (A) except in the case of workers' compensation
insurance, name Mortgagor as an insured and shall name as additional insureds
(1) Mortgagee and (2) to the extent required by the Material Instrument
Requirements, the lessors under any Facility Leases and the holders of the
Superior Mortgages, (B) provide that all insurance proceeds for losses, except
in the case of comprehensive general liability insurance and workers'
compensation insurance, be payable solely to Mortgagee, subject to any Material
Instrument Requirements, include effective waivers (whether under the terms of
any such policy or otherwise) by the insurer of all claims for insurance
premiums against all loss payees and named insureds (other than Mortgagor) and
all rights of subrogation against any named
insured, (D) except in the case of comprehensive general liability and workers'
compensation insurance, provide that any losses shall be payable notwithstanding
(1) any act, failure to act, negligence of, or violation or breach of
warranties, declarations or conditions contained in such policy by Mortgagor or
Mortgagee or any other named insured or loss payee, (2) the occupation or use of
the insurable properties for purposes more hazardous than permitted by the terms
of the policy, (3) any foreclosure or other proceeding or notice of sale
relating to the insurable properties or (4) any change in the title to or owners
hip or possession of the insurable properties, (E) contain a non-contributory
mortgagee clause in favor of Mortgagee, and (F) provide that if all or any part
of such policy is cancelled, terminated or expires, the insurer will forthwith
give notice thereof to each named insured and loss payee and that no
cancellation, non-renewal, reduction in amount or material change in coverage
thereof shall be effective until at least 30 days after receipt by each named
insured and loss payee of written notice thereof. Mortgagor may effect the
insurance required under this Section 5.11 under blanket and/or umbrella
policies covering properties owned or leased by Affiliates of Mortgagor;
provided, that such policies otherwise comply with this Mortgage and provide
that the amount of coverage afforded thereunder with respect to the Trust Estate
shall not be reduced by claims thereunder against such other properties.
(i) Mortgagor may effect the insurance required under this Section 5.11
under blanket and/or umbrella policies covering properties owned or leased by
Affiliates of Mortgagor; provided, that (A) such policies otherwise comply with
this Mortgage, (B) except with respect to flood insurance and earthquake
insurance, provide that the amount of coverage afforded thereunder with respect
to the Trust Estate shall not be reduced by claims thereunder against such other
properties' and (C) in the case of flood insurance provide that the amount of
coverage afforded thereunder with respect to the Trust Estate shall not be
reduced below $100,000,000 by reason of claims thereunder against such other
properties.
(c) Mortgagee shall not be responsible for effecting or renewing any
insurance or for the responsibility or solvency of the insurers.
(d) Mortgagor shall not take out separate insurance, concurrent in form or
contributing in the event of loss with that required to be maintained pursuant
to this Section 5.11, unless the same is permitted by Material Instrument
Requirements.
12. Limitations on Building Demolition, Alterations, Improvements and New
Construction.
Unless an Event of Default shall have occurred and be continuing, Mortgagor
shall have the right at all times to make or permit such demolition,
alterations, improvements or new construction, structural or otherwise (herein
sometimes called collectively "Alterations" and each, individually, an
"Alteration"), of or on the Trust Estate, to be made in all cases subject to
each of the following conditions:
(a) No Alteration shall be undertaken or carried out except in
conformity with all Material Instrument Requirements, Legal Requirements
and Insurance Requirements.
(b) If any Alteration, together with other Alterations that constitute
a single construction plan or project (whether or not accomplished in
several stages or procedures) is material to the Premises taken as a whole
(a "Material Alteration"), the building or buildings, structures or other
improvements as so improved or altered, upon the completion of the work,
shall be of a value not less than the value of such building or buildings,
structures or other improvements immediately prior to the making of such
Material Alteration.
(c) Any Material Alteration shall be conducted under the supervision
of an Architect, and upon Mortgagee's request therefor, detailed plans and
specifications and cost estimates therefor, prepared and approved in
writing by such Architect and accompanied by a certificate of such
Architect stating that such plans and specifications are in compliance with
all Legal Requirements and Insurance Requirements shall be delivered to
Mortgagee.
(d) No Alteration which is material to the operation of the Company
and its Subsidiaries taken as a whole shall be undertaken until Mortgagor
has furnished to Mortgagee, at Mortgagor's sole cost and expense, a surety
bond or bonds, covering performance, and labor and material payments with
respect to the work to be so performed, naming Mortgagee as obligee, issued
by a responsible surety company, authorized to do business in the State of
New Jersey, in a form generally and customarily used by such surety in an
amount equal to the estimated cost of construction of the work covered by
the plans and specifications therefor, guaranteeing the performance and
completion of such construction, substantially in conformity with the said
plans and specifications and within a reasonable time, subject to delays by
fire, strikes, lock-out, acts of God, inability to obtain labor or
materials, governmental restrictions, enemy action, civil commotion or
unavoidable Casualty or other similar causes beyond the control of
Mortgagor, free and clear of all Liens, claims and
liabilities for the cost of such Alterations. If such surety bond or bonds
shall be unobtainable Mortgagor shall deliver to Mortgagee security by
cash, letter of credit or other guarantee, affording substantially the same
protection as would such bond or bonds. If Mortgagor shall require any
contractor performing a Material Alteration to deliver any surety bonds or
bonds, covering performance, and labor and material payments with respect
to the work to be so performed, naming Mortgagor as obligee, such bond or
bonds shall name Mortgagee as co-obligee.
(e) All work done in connection with any Alterations shall be done
promptly and in good and workmanlike manner. The work in connection with
any Alteration shall be prosecuted with reasonable dispatch, delays due to
fire, strikes, lock-outs, acts of God, inability to obtain labor or
materials, governmental restrictions, enemy action, civil commotion or
unavoidable Casualty or similar causes beyond the control of Mortgagor
excepted.
(f) No Alterations of any kind shall be made which shall change the
use of the Casino Hotel from its use as a gaming and hotel facility.
(g) Mortgagor shall maintain, or shall require its contractors to
maintain, at all times during the performance of Material Alterations, in
addition to any insurance required to be maintained under Section 5.11
hereof, appropriate workers' compensation insurance covering all persons
employed for such Material Alterations to the extent required by applicable
law, and comprehensive general liability insurance expressly covering the
additional hazards due to such Material Alterations. Each such policy of
insurance shall comply with the provisions of Section 5.11(b), and
Mortgagor shall comply with Subsections (c), (d) and (e) of Section 5.11 in
connection with all such insurance.
13. Leases.
Mortgagor shall not (except in accordance with the provisions of the Trust
Indenture):
(a) lease the Trust Estate substantially as an entirety to any Person,
nor shall Mortgagor lease either the Casino Hotel or the Casino or the
Hotel or any parking facilities located on the Parking Parcel or the
Parking Parcel substantially as an entirety to any Person;
(b) enter into any Lease, or renew, modify, extend, terminate, or
amend any Lease, except in the ordinary course of business of operating the
Casino Hotel;
(c) receive or collect, or permit the receipt or collection of, any
rental payments under any Lease more than one month in advance of the
respective periods in respect of which they are to
accrue, except that, in connection with the execution and delivery of any
Lease or of any amendment to any Lease, rental payments thereunder may be
collected and received in advance in an amount not in excess of three
months' rent and/or a security deposit may be required thereunder;
(d) collaterally assign, transfer or hypothecate (other than to
Mortgagee hereunder or to the holder of any Superior Mortgage, but in each
case only with respect to the property secured by such mortgage, and except
as permitted by the Trust Indenture) (i) any rental payment under any Lease
whether then due or to accrue in the future, (ii) the interest of Mortgagor
as landlord under any Lease or (iii) the rents, issues or profits of the
Trust Estate;
(e) after the date hereof, enter into any Lease, or renew any Lease,
unless such Lease contains terms to the effect as follows:
(i) the Lease and the rights of the tenants thereunder shall be
subject and subordinate to the rights of Mortgagee under this Mortgage
and the holders of any Superior Mortgage,
(ii) the Lease may be assigned by the landlord thereunder to
Mortgagee,
(iii) the rights and remedies of the tenant in respect of any
obligations of the landlord thereunder shall be nonrecourse as to any
assets of the landlord other than its equity in the building in which
the leased premises are located or the proceeds thereof, and
(iv) the rights of the tenant shall be subject and subordinate to
the rights of the lessee under any New Lease (as defined in Section
29.3 of the Ground Leases); or
(f) modify any Lease with respect to the matters described in clauses
(i) through (iv) of paragraph (e).
If Mortgagor enters into a Lease (other than with Affiliate of Mortgagor)
for a term of not less than 3 years, Mortgagee shall deliver a non-disturbance
and attornment agreement substantially in the form of Schedule 5 hereto,
following receipt of a Mortgagor's Request. Mortgagor shall, upon demand,
reimburse Mortgagee for any costs and expenses (including reasonable attorneys'
fees and disbursements) incurred by Mortgagee in connection with the
preparation, review and delivery of such non-disturbance and attornment
agreements. Mortgagee shall, from time to time, after receipt of a Mortgagor
Request therefor (accompanied by an Officers' Certificate stating that said
conditions have been satisfied) execute instruments in form and substance
reasonably satisfactory to Mortgagee confirming the permissability of a
modification, termination or
surrender of any Lease, other than a modification described in paragraph (f) of
this Section 5.13.
Promptly after the execution and delivery hereof, Mortgagor shall cause the
lessee under each Lease now in effect, and promptly after each Lease is executed
or becomes effective after the date of the execution and delivery hereof,
Mortgagor shall cause the lessee under each such Lease, to be duly notified in
writing (unless the substance and effect of such notice shall be contained in
such Lease) of the subjection of the owner's interest, as lessor, in and to such
Lease to the Lien of this Mortgage and of the name and address of Mortgagee.
Each such notice shall state that the lease of such lessee is a Lease as herein
defined. If a new Mortgagee is at any time appointed hereunder or the address of
Mortgagee shall at any time be changed, Mortgagor shall cause each lessee under
each Lease to be promptly notified in writing of the name and address of such
new Mortgagee or the new address of Mortgagee. Mortgagor shall use reasonable
efforts (but shall not be obligated to incur any expenditure other than de
minimis amounts) to obtain from each lessee under each Lease to whom any notice
is sent pursuant to this paragraph an acknowledgment of receipt of such notice,
and Mortgagor shall promptly deliver to Mortgagee, upon request, a copy of each
such acknowledgment of receipt which it is able to obtain. Mortgagee shall not
be responsible for securing or causing Mortgagor to secure any such
acknowledgment.
14. Compliance Certificates.
Mortgagor shall comply with the provisions of Section 5.7 of the Trust
Indenture, the terms of which are incorporated herein by reference.
15. Intentionally Omitted.
16. To Keep Books; Inspection by Mortgagee.
Mortgagor will keep proper books of record and account, in which full and
correct entries shall be made of all dealings or transactions of or in relation
to the properties, business and affairs of Mortgagor in accordance with
generally accepted accounting principles consistently applied. Said books shall
be maintained in an office located either in Atlantic City, New Jersey or in the
Borough of Manhattan, City of New York, State of New York. Mortgagor shall at
any and all times, upon request of Mortgagee and at the expense of Mortgagor,
permit Mortgagee and its representatives to inspect the Casino Hotel and any
other buildings, structures and improvements now or hereafter located on the
Land and the books of account, records, reports and other papers of Mortgagor,
and to make copies and extracts therefrom, and will afford and procure a
reasonable opportunity to make any such inspection (provided, that any such
inspection shall not unreasonably interfere with the business operations of
Mortgagor), and Mortgagor will furnish to Mortgagee any and all information as
Mortgagee may reasonably request, with respect to the performance by Mortgagor
of its covenants in this Mortgage.
17. Advances by Mortgagee.
If Mortgagor shall fail to perform any of the covenants, terms, provisions
or conditions contained in this Mortgage and such failure shall continue for 10
days following notice thereof given by Mortgagee (or at any time, without
notice, in case of emergency), Mortgagee may (but is not obligated to), at any
time and from time to time, take any action or make advances, to effect
performance of any such covenant, term, provision or condition on behalf of
Mortgagor; and all moneys so used, paid or advanced by Mortgagee and all
reasonable costs and expenses incurred by Mortgagee in connection therewith,
together with interest on all of the same at the rate of interest set forth in
the applicable Debt Documents, shall be immediately due and payable by Mortgagor
to Mortgagee and all such moneys, costs and expenses shall be secured by the
Lien of this Mortgage prior to any Indebtedness secured hereby. No such advance
or payment by Mortgagee shall relieve Mortgagor from any default hereunder or
impair any right or remedy of Mortgagee.
18. Waiver of Stay, Extension or Usury Laws.
Mortgagor covenants (to the extent that it may lawfully do so) that it will
not at any time insist upon, or plead, or in any manner whatsoever claim or take
the benefit or advantage of, any usury, stay or extension law or any other law
wherever enacted which would prohibit or forgive Mortgagor from paying all or
any portion of the Obligations secured by this Mortgage, wherever enacted, now
or at any time hereafter in force, or which may otherwise affect the covenants
or the performance of this Mortgage; and Mortgagor (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and covenants that it shall not hinder, delay or impede the execution of
any power herein granted to Mortgagee, but shall suffer and permit the execution
of every such power as though no such law had been enacted.
19. Intentionally Omitted.
20. Facility Leases.
(a) Subject to the provisions of Sections 4.3 and 5.15 of the Trust
Indenture, Mortgagor shall do or cause to be done all things necessary to
preserve and keep unimpaired the rights of Mortgagor, as lessee under all
Facility Leases, and to prevent any termination, surrender, cancellation,
forfeiture or impairment of any thereof. Mortgagor shall at all times fully
perform and comply with all agreements, covenants, terms and conditions imposed
upon or assumed by it as lessee under each of the Facility Leases (including,
without limitation, the covenant to pay rent and all taxes, assessments and
other charges mentioned therein) prior to the expiration of any notice and/or
cure period provided in each such Facility Lease. Upon receipt by Mortgagee from
a Lessor of any written notice of default by the lessee thereunder, Mortgagee
may rely thereon and take any action Mortgagee deems necessary in its sole
discretion to prevent or to cure any default by Mortgagor in the performance of
or compliance with any of the agreements, covenants, terms or conditions imposed
upon or assumed by Mortgagor as lessee under such Facility Lease, even though
the existence of such default or the nature thereof be questioned or denied by
Mortgagor or by any party on behalf of Mortgagor. Without limiting the
generality of Section 3.09, Mortgagor hereby expressly grants to Mortgagee, and
agrees that Mortgagee shall have, the absolute and immediate right to enter in
and upon the Premises or any part thereof to such extent and as often as
Mortgagee, in its sole discretion, deems necessary or desirable for the purpose
permitted by the immediately preceding sentence, subject only to applicable
Legal Requirements. Without limiting Mortgagor's obligations or Mortgagee's
rights set forth above or limiting Mortgagee's other remedies under this
Mortgage, Mortgagee may (i) pay and expend such sums of money as Mortgagee in
its sole discretion deems necessary for any such purpose, and (ii) without
limiting the provisions of (i) above, in the event of a Disqualification (as
defined in Section 52.2 of the Ground Leases), and Mortgagor's failure to
exercise the option contained in Section 52.3 of the appropriate Ground Lease
within the period of time described in Section 5.20(b)(vii), exercise said
option on behalf of Mortgagor and expend any amounts Mortgagee, in its sole
discretion, deems necessary in connection therewith, and Mortgagor hereby agrees
to pay to Mortgagee immediately and without demand, all such sums referred to in
(i) and (ii) above, so paid and expended by Mortgagee, together with interest
thereon from the date of each such payment at the highest rate of interest set
forth in the Mortgage Notes. All sums so paid and expended by Mortgagee, and the
interest thereon, shall be added to and be secured by the Lien of this Mortgage.
(b) Subject to the provisions of Sections 4.3 and 5.15 of the Trust
Indenture, Mortgagor further covenants and agrees as follows:
(i) Mortgagor shall not surrender, terminate or cancel any Ground
Lease, and shall not without the consent of Mortgagee, surrender, terminate
or cancel modify, change, supplement, alter or amend any Facility Lease,
either orally or in writing, if (x) an impairment of the security granted
under this Mortgage would result therefrom or (y) with respect to any
Ground Lease, the term of such Ground Lease would be reduced thereby or the
leasehold mortgagee protections contained therein would be reduced or
impaired thereby. Without limiting the generality of the foregoing
sentence, Mortgagor shall be permitted to amend Article Fifty-Second of the
Ground Lease of the TSA Parcel to increase the purchase price under the
option to purchase described therein from $5,000,000 to $10,000,000. As
further security for the repayment of the indebtedness secured hereby and
for the performance of the covenants herein and in each Facility Lease
contained, Mortgagor hereby assigns to Mortgagee all of Mortgagor's rights,
privileges and prerogatives as lessee under each Facility Lease to
terminate, cancel, modify, change, supplement, alter or amend such Facility
Lease (including, without limitation, under Section 20.2 of any Ground
Lease), and any such termination, cancellation, modification, change,
supplement, alteration or amendment of a Facility Lease in violation of the
terms hereof, without the prior consent thereto by Mortgagee, shall be void
and of no force and effect. Unless (1) an Event of Default has occurred and
is continuing and (2) either (A) there has been an acceleration of maturity
of any Indebtedness secured hereby or (B) Mortgagee exercises its rights
under Section 3.09, Mortgagee shall have no right to terminate, cancel,
modify, change, supplement, alter or amend any Facility Lease. Mortgagee
shall, from time to time, after receipt of a Mortgagor Request therefor
(accompanied by an Officers' Certificate stating that said conditions have
been satisfied) execute instruments in form and substance reasonably
satisfactory to Mortgagee confirming the permissabilty of the modification
of any Facility Lease described in this clause (i).
(ii) Solely for the benefit of Mortgagee, the Holders and no other
person, no release or forbearance of any of Mortgagor's obligations under
any Facility Lease, pursuant to such Facility Lease or otherwise, shall
release Mortgagor from any of Mortgagor's other obligations under this
Mortgage.
(iii) Unless Mortgagee shall otherwise expressly consent in writing,
the fee title to the Leased Facilities and Mortgagor's leasehold estates
therein shall not merge and shall always remain separate and distinct,
notwithstanding the union of said estates either in the Lessor or in the
lessee, or in a third party by purchase or otherwise.
(iv) Mortgagor shall not appoint or consent to the appointment of an
arbitrator pursuant to Article Twenty-First of the Ground Leases without
the prior consent of Mortgagee. Mortgagor shall promptly notify Mortgagee
in writing of any request made by Mortgagor, as lessee under any Facility
Lease, or any of the Lessors, for arbitration proceedings under any
Facility Lease and of the institution of any arbitration proceedings, as
well as all proceedings thereunder. Mortgagor shall promptly deliver to
Mortgagee a copy of the determination of the arbitrators in each such
arbitration proceeding. Mortgagee shall have the right to participate in
such arbitration proceedings in association with Mortgagor or on its own
behalf as an interested party.
(v) Mortgagor shall not consent to the subordination of any Facility
Lease to any mortgage, deed of trust or other Lien on the fee interest of
the Lessor.
(vi) If (A) Mortgagor exercises its option(s) under Article
Forty-Fourth or Fifty-Second of any Ground Lease to purchase any portion of
the Ground Lease Land, Mortgagor shall deliver a copy of its election to
exercise such option within 5 days after Mortgagor has delivered notice of
such election to the Lessor or (B) Mortgagor acquires fee simple title or
any other estate, title or interest in any Leased Facility (pursuant to the
options described in clause (A) or otherwise), Mortgagor shall promptly
notify Mortgagee of such acquisition and, on request by Mortgagee, shall
cause to be executed and recorded all such other and further assurances or
other instruments in writing as may in the opinion of Mortgagee be required
or desirable to carry out the intent and meaning of clause (x) of Granting
Clause Second.
(vii) In the event of any Disqualification, Mortgagor shall exercise
the option granted by Section 52.3 of the appropriate Ground Lease within
60 days after the first day on which Mortgagor may exercise said option.
(viii) Within 5 days after Mortgagor's receipt of any notice of any
motion, application or effort to reject any Facility Lease by any Lessor or
any trustee arising from or in connection with any case, proceeding or
other action commenced or pending by or against any Lessor under the Code
or any comparable provision contained in any present or future federal,
state, local, foreign or other statute, law, rule or regulation
("Comparable Provision"), Mortgagor shall give notice thereof to Mortgagee.
Mortgagor hereby (A) assigns to Mortgagee any and all of Mortgagor's rights
as lessee under Section 365(h) of the Code or any Comparable Provision and
(B) covenants that it shall not elect to treat any Facility Lease as
terminated pursuant to Section 365(h) of the Code or any Comparable
Provision without the prior
consent of Mortgagee and (C) agrees that any such election by Mortgagor
without such consent shall be null and void.
(ix) Without limiting the generality of the foregoing, to the extent
permitted by applicable law, Mortgagor hereby unconditionally assigns,
transfers and sets over to Mortgagee all of Mortgagor's claims and rights
to the payment of damages arising from any rejection by Lessor of any
Facility Lease under the Code or any Comparable Provision. Mortgagee shall
have the right to proceed in its own name or in the name of Mortgagor in
respect of any claim, suit, action or proceeding relating to the rejection
of any Facility Lease, including, without limitation, the right to file and
prosecute, in cooperation with Mortgagor, any proofs of claim, complaints,
motions, applications, notices and other documents, in any case in respect
of Lessor under the Code or any Comparable Provision. This assignment
constitutes a present, irrevocable and unconditional assignment of the
foregoing claims, rights and remedies, and shall continue in effect until
all of the indebtedness and obligations secured by this Mortgage shall have
been satisfied and discharged in full. Any amounts received by Mortgagee in
damages arising out of the rejection of any Facility Lease as aforesaid
shall be applied first to all reasonable costs and expenses of Mortgagee
(including, without limitation, reasonable attorneys' fees, disbursements
and court costs) incurred in connection with the exercise of any of its
rights or remedies under this Section 5.20, and thereafter as provided in
Section 3.03.
(x) If there shall be filed by or against Mortgagor a petition under
the Code or any Comparable Provision and Mortgagor, as lessee under any
Facility Lease, shall determine to reject such Facility Lease, Mortgagor
shall give Mortgagee not less than 10 days' prior notice of the date on
which Mortgagor shall apply to the Bankruptcy Court or other judicial body
with appropriate jurisdiction for authority to reject such Facility Lease.
Mortgagee shall have the right, but not the obligation, to serve upon
Mortgagor within such 10-day period a notice stating that (a) Mortgagee
demands that Mortgagor assume and assign such Facility Lease to Mortgagee
pursuant to Section 365 of the Code or any Comparable Provision and (b)
Mortgagee covenants to cure or provide adequate assurance of prompt cure of
all defaults and provide adequate assurance of future performance under
such Facility Lease. If Mortgagee serves upon Mortgagor the notice
described in the preceding sentence, Mortgagor shall not seek to reject
such Facility Lease and shall comply with the demand provided for in clause
(a) of the preceding sentence within 30 days after the notice shall have
been given subject to the performance by Mortgagee of the covenant provided
for in clause (b) of the preceding sentence. The foregoing provisions of
this
Section 5.20(x) shall not apply to the extent not permitted by applicable
law. Effective upon the entry of an order for relief in respect of
Mortgagor under Chapter 7 of the Code or any Comparable Provision,
Mortgagor hereby assigns and transfers to Mortgagee a non-exclusive right
to apply to the Bankruptcy Court or other judicial body with appropriate
jurisdiction for an order extending the period during which such Facility
Lease may be rejected or assumed.
(xi) Mortgagor shall promptly give to Mortgagee copies of (A) all
notices of default and (B) any other communications or notices with respect
to events that relate to the possible impairment of the security of this
Mortgage, which Mortgagor shall give or receive under any Facility Lease
and shall promptly notify Mortgagee of any default under any Facility Lease
on the part of the Lessor or Mortgagor.
(xii) Mortgagor shall enforce with due diligence all of the
obligations of the Lessor under each Facility Lease, to the end that
Mortgagor may enjoy all of the rights and privileges granted to it under
the Facility Leases.
(xiii) Mortgagor shall notify Mortgagee within 5 days after the
transfer of a fee interest in any Leased Facility or any portion thereof to
or from an Affiliate.
(xiv) The Company or any of its Subsidiaries shall not at any time
hereafter acquire fee title to the Leased Land or any portion thereof
unless simultaneously with such acquisition the Company or such Subsidiary
and Mortgagor execute and exchange (and deliver to Mortgagee an executed
counterpart of) an instrument in form and substance satisfactory to
Mortgagee providing that so long as the Company or such Subsidiary owns
such fee title (A) the Company or such Subsidiary shall not terminate the
applicable Facility Lease for any reason whatsoever (including, without
limitation, due to the default of Mortgagor under such Facility Lease) and
(B) the Company or such Subsidiary shall not accept, and, if tendered by
Mortgagor shall promptly return to Mortgagor, any payment of rent or other
charges payable under such Facility Lease in excess of the amount required
to pay the debt service and other sums payable under any mortgage affecting
the Company's or such Subsidiary's fee interest in the applicable Leased
Facility (and the Company or such Subsidiary shall use such funds only to
pay its debt service obligations and other sums payable under such
mortgage) at any time that an Event of Default shall have occurred and be
continuing under this Mortgage or the Trust Indenture.
(c) Mortgagor hereby represents and warrants that all Fixed Net Rent (as
defined in the Ground Leases), taxes and assessments, payable under the Ground
Leases have been paid to
the extent they were due and payable to the date hereof and that Mortgagor has
not received notice of its failure to pay any other amounts payable under the
Ground Leases which has not been cured.
(d) Subject to the provisions of Section 5.20(b)(iii), if both the lessor's
and lessee's estates under any Facility Lease or any portion thereof shall at
any time become vested in one owner, this Mortgage and the Lien created hereby
shall nevertheless not be destroyed or terminated by application of the doctrine
of merger and, in such event, Mortgagee shall continue to have all of the rights
and privileges of a first leasehold mortgagee.
(e) Mortgagor hereby acknowledges that if any Facility Lease shall be
terminated prior to the natural expiration of its term due to default by the
lessee thereunder, and if pursuant to such Facility Lease, Mortgagee or its
designee shall acquire from the Lessor a new lease of the Leased Facility or any
portion thereof, Mortgagor shall have no right, title or interest in or to such
lease or the leasehold estate created thereby, or the options therein contained.
(f) Each Facility Lease hereafter entered into or assumed by Mortgagor as
lessee or sublessee shall contain provisions (i) permitting the assignment of
the same to Mortgagee and permitting assignment without the lessor's consent if
this Mortgage is foreclosed; and (ii) providing protection to Mortgagee, as
leasehold mortgagee, not less favorable than the provisions contained in Article
Twenty-Ninth of the Ground Leases.
21. Superior Mortgages.
(a) Mortgagor shall at all times fully perform and comply with all
agreements, covenants, terms and conditions imposed upon or assumed by it as
mortgagor under the Superior Mortgages prior to the expiration of any notice
and/or cure period provided in each such Superior Mortgage. If a notice of
default has been given by the holder of any Superior Mortgage, Mortgagee may
rely thereon and take any action Mortgagee deems necessary in its sole
discretion to prevent or to cure any default by Mortgagor in the performance of
or compliance with any of the agreements, covenants, terms or conditions imposed
upon or assumed by Mortgagor as mortgagor under each of the Superior Mortgages
even though the existence of such default or the nature thereof be questioned or
denied by Mortgagor or by any party on behalf of Mortgagor. Without limiting the
generality of Section 3.09, Mortgagor hereby expressly grants to Mortgagee, and
agrees that Mortgagee shall have, the absolute and immediate right to enter in
and upon the Premises or any part thereof to such extent and as often as
Mortgagee, in its sole discretion, deems necessary or desirable for the purpose
permitted by the immediately preceding sentence, subject only to applicable
Legal Requirements. Without limiting Mortgagor's obligations or Mortgagee's
rights set forth above or limiting Mortgagee's other remedies under this
Mortgage, Mortgagee may (i) pay and expend such sums of money as Mortgagee in
its sole discretion deems necessary or desirable for any such purpose and (ii)
in its sole discretion prepay any Superior Mortgage, and Mortgagor hereby agrees
to pay to Mortgagee immediately and without demand, all such sums referred to in
(i) and (ii) above so paid and expended by Mortgagee, together with interest
thereon from the date of each such payment at the highest rate of interest set
forth in any outstanding Mortgage Notes. All sums so paid and expended by
Mortgagee and the interest thereon, shall be added to and be secured by the Lien
of this Mortgage.
(b) Mortgagor further covenants and agrees:
(i) Mortgagor shall not, without first obtaining the consent of
Mortgagee in each instance: (A) modify, replace or refinance any Superior
Mortgage if (x) the collateral securing the Lien thereof would be increased
thereby or (y) such modification, replacement or refinancing violates any
other provision of this Mortgage or the Trust Indenture or (B) acquire or
permit or suffer the Company or any of its Subsidiaries to acquire any
Superior Mortgage or any interest therein unless permitted by the terms of
the Trust Indenture;
(ii) Mortgagor shall timely pay and perform all of the obligations to
be paid or performed by the mortgagor under each Superior Mortgage, the
note secured thereby
and any other instrument evidencing or securing the indebtedness owing to
any holder of any Superior Mortgage;
(iii) at any time, and from time to time, Mortgagor shall upon request
of Mortgagee promptly use its reasonable efforts to obtain an estoppel
certificate or letter addressed to Mortgagee from holders of the Superior
Mortgages, such certificate or letter to be in such form as Mortgagee shall
reasonably request;
(iv) Mortgagor shall promptly give to Mortgagee copies of (A) all
notices of default or (B) any other notice or communication with respect to
events which relate to the possible impairment of the security of this
Mortgage, which Mortgagor shall give or receive under the Superior
Mortgages and shall promptly notify Mortgagee of any default under any
Superior Mortgages on the part of Mortgagor.
22. Indemnification.
Mortgagor shall reimburse Mortgagee upon request for all reasonable
disbursements, expenses and advances incurred or made by it in accordance with
the terms hereof. Such expenses shall include the reasonable compensation,
disbursements and expenses of Mortgagee's agents, accountants, experts and
counsel.
Mortgagor shall indemnify Mortgagee (in its capacity as Mortgagee) and each
of its officers, directors, attorneys-in-fact and agents for, and hold it
harmless against, any claim, demand, expense (including but not limited to
reasonable compensation, disbursements and expenses of Mortgagee's agents and
counsel), loss or liability incurred by them without negligence, bad faith or
willful misconduct on its part, arising out of or in connection with the
administration of this Mortgage and their rights or duties hereunder including
the reasonable costs and expenses of defending themselves against any claim or
liability in connection with the exercise or performance of any of its powers or
duties hereunder. Mortgagee shall notify Mortgagor promptly of any claim
asserted against the Mortgagee for which it may seek indemnity. Mortgagor shall
defend the claim and Mortgagee shall provide reasonable cooperation at
Mortgagor's expense in the defense. Mortgagee may have separate counsel and
Mortgagor shall pay the reasonable fees and expenses of such counsel; provided,
that Mortgagor will not be required to pay such fees and expenses if it assumes
Mortgagee's defense and there is no conflict of interest between Mortgagor and
Mortgagee in connection with such defense. Mortgagor need not pay for any
settlement made without its written consent. Mortgagor need not reimburse any
expense or indemnify against any loss or liability to the extent incurred by
Mortgagee through its negligence, bad faith or willful misconduct.
When Mortgagee incurs expenses or renders services after an "Event of
Default" specified in Section 7.1 (f) or (g)
of the Trust Indenture occurs, the expenses and the compensation for the
services are intended to constitute expenses of administration under any
Bankruptcy Law.
Mortgagor's obligations under this Section 5.22 shall survive the
resignation or removal of Mortgagee, the discharge of the Obligations and any
rejection or termination of this Mortgage under any Bankruptcy Law.
Section 5.23. Acceptance. By Mortgagee's acceptance of this Mortgage,
Mortgagee agrees to be bound by the terms hereof.
IN WITNESS WHEREOF, Mortgagor has caused this Mortgage to be duly executed
and attested, all as of the day and year first above written.
TRUMP PLAZA ASSOCIATES
By: Trump Atlantic City Corporation,
a general partner
Witness:________________ By: ___________________
Name:
Title:
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
BE IT REMEMBERED, that on April __, 1996, before me, the subscriber, a
Notary Public of the State of New York, personally appeared
_______________________, to me known, who, being by me duly sworn did depose and
say that he resides at _____________________________ ; that he is _____________
of Trump Atlantic City Corporation, which is a general partner of TRUMP 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.
--------------------------------
Notary Public