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COLLATERAL AGENCY AGREEMENT
among
FIRST BANK
NATIONAL ASSOCIATION,
as Collateral Agent,
FIRST BANK
NATIONAL ASSOCIATION,
as Trustee under the Existing Indenture
referred to herein for the holders of the
First Mortgage Notes due 2006
of Trump Atlantic City Associates and
Trump Atlantic City Funding, Inc.
THE OTHER SECURED PARTIES FROM TIME TO TIME SIGNATORY HERETO and
TRUMP ATLANTIC CITY ASSOCIATES
and
TRUMP ATLANTIC CITY FUNDING, INC.,
TOGETHER WITH THE ENTITIES REQUIRED TO GUARANTEE
THE FIRST MORTGAGE NOTES REFERRED TO ABOVE
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Dated as of April 17, 1996
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COLLATERAL AGENCY
AGREEMENT
COLLATERAL AGENCY AGREEMENT (together with any amendments, replacements and
supplements hereafter entered into in accordance with the terms hereof, the
"Collateral Agency Agreement"), dated as of April 17, 1996, by and among First
Bank National Association, in its capacity as collateral agent hereunder
(including any successor collateral agent, the "Collateral Agent"); First Bank
National Association (the "Trustee"), in its capacity as trustee under the
Existing Indenture (as defined herein) for the benefit of the holders of
Existing Notes (as hereinafter defined); the other Designated Representatives
(as hereinafter defined) for the benefit of the other Secured Beneficiaries (as
hereinafter defined), which Designated Representatives by their act become
signatories hereto as set forth herein; Trump Atlantic City Associates, a New
Jersey general partnership (the "Company"); Trump Atlantic City Funding, Inc., a
Delaware corporation ("Funding" and, together with the Company, the "Issuers");
and Trump Plaza Associates, a New Jersey general partnership, Trump Taj Mahal
Associates, a New Jersey general partnership and Trump Atlantic City Corporation
(formerly known as "The Trump Taj Mahal Corporation"), a Delaware corporation
(collectively, together with such entities as may hereafter be required to
become guarantors of the Existing Indenture Obligations, the "Guarantors", and
together with the Issuers, the "Debtors"). As used herein, all capitalized terms
not otherwise defined herein shall have the respective meanings set forth in the
Existing Indenture.
W I T N E S S E T H:
WHEREAS, the Company and Funding are concurrently issuing the Existing
Notes and the Guarantors are issuing guarantees of the Existing Notes pursuant
to the Existing Indenture;
WHEREAS, each of the Debtors is concurrently executing and delivering
certain of the Collateral Documents to which it is a party to the Collateral
Agent;
WHEREAS, the parties hereto desire that certain permitted indebtedness be
secured by equal and ratable liens.
NOW THEREFORE, in consideration of the premises and other benefits, the
receipt and sufficiency of which is hereby acknowledged, the parties hereto
agree as follows:
Definitions. As used herein, the following terms shall have the meanings
set forth in this Section 1, and all other capitalized terms not otherwise
defined herein shall have the respective meanings set forth in the Existing
Indenture. All such terms shall include in the singular number the plural and in
the plural number the singular.
"Acceptable Bank" means a bank or trust company in good standing and
incorporated under the laws of the United States or any State thereof or the
District of Columbia, with its principal corporate trust office within the
United States, with capital, surplus and undistributed profits of not less than
$25,000,000.
"Agency Appointment Agreement" means an agreement substantially in the form
of Annex A attached hereto signed on behalf of a class of secured creditors by
its sole Designated Representative and accepted by the Collateral Agent.
"Collateral" means property that is subject to the Liens created by the
Collateral Documents in favor of the Collateral Agent.
"Collateral Agency Agreement" means this Collateral Agency Agreement among
the Collateral Agent, the Existing Trustee, the other Designated Representatives
and the Debtors, as this Collateral Agency Agreement may be amended, modified or
supplement from time to time in accordance with the terms hereof.
"Collateral Documents" means the "Mortgage Documents" (as defined in the
Existing Indenture) and this Collateral Agency Agreement.
"Company Request" means a written request of any of the Debtors in the form
of an Officers' Certificate delivered pursuant to the respective Debt Documents.
"Debt Documents" means the Existing Indenture and any Secured Credit
Agreements.
"Designated Representatives" means the Trustee, with respect to the
Existing Indenture, for the benefit of the Holders, and means each Person who
executes an Agency Appointment Agreement for the benefit of each other class of
Secured Beneficiaries.
"Existing Indenture" means the Indenture, dated as of April 17, 1996, among
the Debtors and the Trustee, relating to the Existing Notes, as such Indenture
may be amended, modified or supplemented from time to time in accordance with
its terms.
"Existing Indenture Obligations" means the "Indenture Obligations" as
defined in the Existing Indenture.
"Existing Notes" means the Company's and Funding's 11 1/4% First Mortgage
Notes due 2006 in an aggregate principal amount originally outstanding of
$1,200,000,000, issued pursuant to the Existing Indenture, including the
guarantees thereof by the Guarantors and Indenture Refinancings.
"Indenture Refinancings" means any full or partial refinancings,
replacements or modifications of the Existing Indenture Obligations (or an
Indenture Refinancing thereof) which are made pursuant to a Secured Credit
Agreement.
"Majority Secured Creditors" means the holders of more than 50% of the
Outstanding Amount of Existing Notes and Secured Loans at such time, taken as a
whole.
"Obligations" means the Existing Indenture Obligations and the Secured
Obligations together with any obligations of any Debtor under any Collateral
Document.
"Opinion of Counsel" means a written opinion from legal counsel who is
reasonably acceptable to the Collateral Agent.
"Outstanding Amount" of any Indebtedness at any time means the principal
amount outstanding of such Indebtedness at such time, unless such Indebtedness
was issued at a discount, in which case the "Outstanding Amount" of such
Indebtedness means the original issue price of such Indebtedness plus the
accretion to such time determined in accordance with GAAP.
"Satisfied" means (a)(i) payment in full and satisfaction of all of the
relevant Obligations or (ii) a defeasance made in accordance with Article IX of
the Existing Indenture and a comparable covenant defeasance or legal defeasance
of all other Secured Obligation made in accordance the provisions of the
applicable Secured Credit Agreement to the extent the terms thereof provide for
the release of the applicable Designated Representative's Lien in respect of the
Collateral as a result thereof, and (b) receipt by the relevant Designated
Representative of an Officers' Certificate of the Company to the effect that (i)
each of the Debtors is at the time of such payments and satisfaction solvent for
the purposes of the United States Bankruptcy Code and (ii) there exist bona fide
financial projections of each of the Debtors demonstrating that the Company,
Funding and the Guarantors each is expected to remain solvent for such purposes
for a period of at least ninety days after such time.
"Secured Beneficiary" or "Secured Beneficiaries" means each Designated
Representative, each holder of the Existing Notes and each holder of the Secured
Loans.
"Secured Credit Agreement" means collectively, each document providing for
secured Indebtedness of the Debtors which Indebtedness is permitted to be
incurred under (i) Indenture Refinancings or (ii) Section 5.11(c) (including
full or partial refinancings, modifications or replacements thereof to the
extent that such refinancings, modifications or replacements are permitted under
the Existing Indenture) or Section 5.11(e) of the Existing Indenture.
"Secured Loans" means the principal amount borrowed under any Secured
Credit Agreements.
"Secured Obligations" means the obligations of the Issuers and the
Guarantors pursuant to the Secured Credit Agreement and the Secured Loans now or
hereafter existing, to pay principal of and interest on the Secured Loans when
due and payable, whether on maturity or an interest payment date, by
acceleration, call for redemption or otherwise, and interest on the overdue
principal of, and (to the extent lawful) interest, if any, on, the Secured Loans
and all other amounts due or to become due in connection with the Secured Credit
Agreement, including any and all extensions, renewals or other modifications
thereof, in whole or in part, and the performance of all other obligations of
the Issuers and the Guarantors including all costs and expenses incurred by the
applicable Designated Representative or the holders in the collection or
enforcement of any such obligations or realization upon the security therefor.
"Security Interests" means the Liens on the Collateral created by the
Collateral Documents.
Appointment. The Trustee, for the benefit of the holders of the Existing
Notes, hereby designates and appoints, and the other Designated Representatives,
for the benefit of their respective holders of Indebtedness, by executing the
Agency Appointment Agreement, designate and appoint the Collateral Agent, and
the Collateral Agent hereby and thereby accepts each such appointment, to serve
as collateral agent and representative of the Trustee, for the benefit of the
holders of the Existing Notes, and to serve as collateral agent and
representative of the other Designated Representatives, for the benefit of the
respective Secured Beneficiaries which thereby become a party to this Collateral
Agency Agreement, in the manner and upon the terms and conditions set forth
herein and in the other Collateral Documents. The Trustee, on behalf of itself
and each Existing Note Holder, hereby irrevocably authorizes, and each Existing
Noteholder by its acceptance of an Existing Note shall irrevocably authorize and
direct, and each Designated Representative, by execution of an Agency
Appointment Agreement on behalf of itself and each holder of a Secured
Obligation, by its respective Designated Representatives' execution of the
Agency Appointment Agreement, irrevocably authorizes and directs, the Collateral
Agent and the Collateral Agent hereby agrees:
to take such action on behalf of the Secured Beneficiaries under the
provisions of this Collateral Agency Agreement and the other Collateral
Documents and to exercise such powers and to perform such duties hereunder and
under any other Collateral Document as are specifically delegated to or required
of the Collateral Agent by the terms hereof and thereof and such other powers as
are reasonably incidental thereto;
to exercise, on behalf of the Secured Beneficiaries, all remedies available
to the Collateral Agent under the Collateral Documents, including without
limitation the right to foreclose or otherwise realize upon any Collateral and
to initiate, prosecute and defend any and all legal proceedings with respect to
the Collateral against the Debtors; and
to execute, deliver and perform on behalf of the Secured Creditors and/or
the Holders of the Obligations such confirmations, subordinations, releases,
terminations, satisfactions, discharges, non-disturbance agreements and all
other agreements, instruments and acts as any of the Debtors shall be entitled
pursuant to the Collateral Documents and the Debt Documents.
Nature of Duties. Neither the Collateral Agent nor any of its officers,
directors, employees or agents shall be liable for any claims, losses, damages,
penalties, actions, judgments, suits, liabilities, obligations, costs or
expenses of any kind or nature whatsoever resulting from any action the
Collateral Agent takes or omits to take under any Collateral Document or in
connection therewith, unless caused by its or their negligence, bad faith or
willful misconduct. The Collateral Agent may perform any of its duties hereunder
by or through its agents or employees. The Collateral Agent shall have no duty
or responsibility, either initially or on a continuing basis, to provide any
Secured Beneficiary with any credit or other information with respect to the
Issuers or any Guarantor whether coming into its possession before the issuance
of the Obligations or at any time or times thereafter, except as otherwise
provided in this Collateral Agency Agreement. The Collateral Agent may accept
deposits from, lend money to, or generally engage in any kind of banking, trust
or other business with the Company or any of its Affiliates, in each case as if
it were not the Collateral Agent hereunder.
Advices. The Collateral Agent shall forward promptly to each Designated
Representative a copy of each notice, certificate, instruction or other
communication received by the Collateral Agent from the Debtors or the Secured
Creditors under this Collateral Agency Agreement, any other Collateral Document
or any of the Debt Documents (except for any which the Issuers and/or the
Guarantors shall be obligated to furnish directly to such Secured Creditor). The
Collateral Agent shall also promptly furnish to each Designated Representative,
upon its written request, such other information and documents concerning the
Collateral and the Collateral Agent's actions with respect thereto as such
Secured Creditor may reasonably request.
Rights of Collateral Agent.
) Right to Rely. The Collateral Agent may rely on any document reasonably
believed by it to be genuine and to have been signed or presented
by the proper person. Before the Collateral Agent acts or refrains from acting
it may consult with counsel and may require an Officers' Certificate or an
Opinion of Counsel, to the extent required under and in accordance with the
Existing Indenture and Secured Credit Agreements. The Collateral Agent shall not
be liable for any action it takes or omits to take in good faith in reliance on
any such Certificate or Opinion.
) Attorneys/Agents. The Collateral Agent may act through its attorneys and
agents and shall not be responsible for the misconduct or negligence of any
agent appointed with due care.
) Good Faith Belief in Authority, Rights or Powers. The Collateral Agent
shall not be liable for any action it takes or omits to take in the good faith
belief that such act or omission was authorized or within its rights or powers.
) No Investigation. The Collateral Agent shall not be bound to make any
investigation into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, notice, request, direction, consent, order,
bond, debenture or other paper or document, but the Collateral Agent, in its
discretion, may make such further inquiry or investigation into such facts or
matters as it may see fit.
) Obligation to Act upon Instructions. The Collateral Agent shall be under
no obligation to exercise any of the rights or powers vested in it by any
Collateral Document at the request, order or direction of or any of the
Designated Representatives or the Majority Secured Creditors, pursuant to the
provisions of any Debt Document, unless the Designated Representatives shall
have offered to the Collateral Agent reasonable security or indemnity against
the costs, expenses and liabilities which may be incurred therein or thereby.
Upon receipt of such reasonable security or indemnity, however, the Collateral
Agent shall act upon the instructions of the Majority Secured Creditors.
Notwithstanding the foregoing, the Collateral Agent shall not take or refrain
from taking such action if so taking or refraining from taking such action, as
the case may be, would violate applicable law or the terms of the Collateral
Documents or the Debt Documents.
) Designated Representative and Secured Beneficiaries. The Collateral Agent
may deem and treat a Designated Representative as the owner of the applicable
Obligation, other than in connection with a determination by the Majority
Secured Creditors. The rights of the individual owners of Existing Notes shall
be governed by the Existing Indenture and the rights of holders of any Secured
Obligation shall be governed by the applicable Secured Credit Agreement. No
individual holder of any Obligation shall have the right to direct the
Collateral Agent to act other than through its Designated Representative, except
in accordance with Section 10.
Compensation and Indemnification.
) Compensation and Expenses. The Company agrees to pay to the Collateral
Agent from time to time upon demand, all reasonable fees, costs and expenses of
the Collateral Agent (including, without limitation, the reasonable fees and
disbursements of counsel) (A) arising in connection with the preparation,
execution, delivery, modification and termination of each Collateral Document or
the enforcement of any of the provisions hereof or thereof, (B) incurred or
required to be advanced in connection with the sale or other disposition of any
Collateral pursuant to any Collateral Document and the preservation, protection
or defense of the Collateral Agent's rights under the Collateral Documents and
in and to the Collateral or (C) in connection with any action taken pursuant to
Section 13.
) Stamp and Other Taxes. The Company hereby agrees to indemnify the
Collateral Agent, and hold it harmless against, any present or future claim for
liability for any stamp or other similar tax and any penalties or interest with
respect thereto, which may be assessed, levied or collected by any jurisdiction
in connection with any Collateral Document or any Collateral.
) Filing Fees, Excise Taxes, Etc. The Company hereby agrees to pay or to
reimburse the Collateral Agent for any and all amounts in respect of all search,
filing, recording and registration fees, taxes, excise taxes and other similar
imposts which may be payable or determined to be payable in respect of the
execution, delivery, performance and enforcement of each Collateral Document.
) Indemnification of Collateral Agent. The Debtors shall jointly and
severally indemnify the Collateral Agent for, and hold it harmless against, any
and all claims, demands, expenses (including but not limited to reasonable
compensation, disbursements and expenses of the Collateral Agent's agents and
counsel), losses or liabilities incurred by it without negligence, bad faith or
willful misconduct on its part, in any way arising out of or in connection with
the acceptance and administration of this Collateral Agency Agreement and its
rights or duties hereunder or under any other Collateral Document. The
Collateral Agent shall notify the Company promptly of any claim asserted against
the Collateral Agent for which it may seek indemnity. The Company need not pay
for any settlement made without its written consent. The Company need not
reimburse any expense or indemnify against any loss or liability to the extent
incurred by the Collateral Agent through its negligence, bad faith or willful
misconduct. When the Collateral Agent incurs expenses or renders services after
an Event of Default specified in Section 7.1(f) of the Existing Indenture
occurs, such expenses and the compensation for such services are intended to
constitute expenses of administration under any Bankruptcy Law.
) Right to Advance Costs. In the event the Collateral Agent makes demand of
the Company for costs incurred under Section 5(a) to 5(d), inclusive, and the
Company is unable or refuses to pay such disbursement or expense of the
Collateral Agent, each Designated Representative shall have the right, but not
the obligation, to advance to the Collateral Agent amounts to pay such
disbursement or expense of the Collateral Agent.
) Survival of Obligations. All obligations set forth in this Section 6
shall survive the execution, delivery and termination of this Collateral Agency
Agreement and the other Collateral Documents and the payment of all other
Obligations.
Resignation by or Removal of the Collateral Agent.
) Resignation; Removal. The Collateral Agent may resign from the
performance of all its functions and duties hereunder and under the other
Collateral Documents at any time by giving twenty Business Days' prior written
notice to the Company and each Secured Creditor. The Majority Secured Creditors
may, at any time, and the Company may, if the Collateral Agent ceases to be an
Acceptable Bank, remove the Collateral Agent by giving twenty Business Days'
prior written notice to the Collateral Agent, the Company, the Guarantors and
the Secured Creditors. Such resignation or removal shall take effect upon the
appointment of a successor Collateral Agent pursuant to paragraph (b) or (c)
below or as otherwise provided below.
) Appointment of Successor. Upon any such notice of resignation or removal,
the Majority Secured Creditors may appoint, with the Company's consent, a
successor Collateral Agent hereunder, which shall be an Acceptable Bank. In the
event that the Majority Secured Creditors do not appoint, with the consent of
the Company, a successor Collateral Agent within fifteen days of receipt of such
notice, the Company shall appoint an Acceptable Bank as successor Collateral
Agent. If a successor Collateral Agent shall have been so appointed by the
Company, the Majority Secured Creditors may appoint a successor Collateral Agent
within one year after the Company-appointed successor Collateral Agent takes
office to replace the Collateral Agent.
) Effectiveness of Resignation or Removal. A successor Collateral Agent
shall deliver a written acceptance of its appointment to the retiring Collateral
Agent, the Designated Representatives and the Debtors. Immediately thereafter,
the retiring Collateral Agent shall transfer all property held by it as
Collateral Agent to the successor Collateral Agent, and shall execute and
deliver to the successor Collateral Agent such documents as are necessary to
perfect or maintain the Security Interests, including any documents necessary to
assign or transfer all interests of the retiring Collateral Agent in the
Collateral to the successor Collateral Agent, in the form or forms adequate for
proper filing or recording in such offices and such jurisdictions as are
necessary to put the successor Collateral Agent in the same position as was the
retiring Collateral Agent with respect to the Collateral. Thereafter, the
resignation or removal of the retiring Collateral Agent shall become effective
and the successor Collateral Agent shall have all the rights, powers and duties
of the Collateral Agent under this Collateral Agency Agreement. A successor
Collateral Agent shall give notice of its succession to the Secured Creditors
and the Debtors.
) Consolidation, Merger, Etc. If the Collateral Agent consolidates with,
merges or converts into, or transfers all or substantially all of its corporate
trust business to, another corporation, the resulting, surviving or transferee
corporation without any further act shall, if such resulting, surviving or
transferee corporation is an Acceptable Bank, be the successor Collateral Agent.
The transferring, merging or converting Collateral Agent shall have all
documents necessary to perfect or maintain the Security Interests, including any
documents necessary to assign or transfer all interests of the transferring,
merging or converting Collateral Agent in the Collateral, executed and delivered
to it in the form or forms adequate for proper filing or recording in such
offices and such jurisdictions as are necessary to put the successor Collateral
Agent in the same position as the transferring, merging or converting Collateral
Agent with respect to the Collateral.
) Compensation Continuing. Any person or entity authorized to act and
acting as Collateral Agent hereunder shall continue to be entitled to receive
fees, costs and expenses as provided in Section 6 hereof so long as such person
or entity acts as Collateral Agent hereunder.
Collateral Delivery and Release.
) Possession. Notwithstanding anything in the Collateral Documents to the
contrary, any Collateral, the establishment or perfection of a security interest
in which may occur only through possession by the secured party, that comes into
the possession or control of any Secured Beneficiary, Designated Representative
or Debtor shall be delivered by such Secured Beneficiary, Designated
Representative or Debtor to, and shall be held by the Collateral Agent in its
name on behalf of the Designated Representatives.
) Release. In the event any Debtor desires release of any item of
Collateral such Debtor shall deliver a Company Request to the Collateral Agent
(a "Release Request"). The Release Request shall include a representation by the
Debtor that it has complied with (i) the applicable requirements of Section 4.3
of the Existing Indenture and (ii) the applicable Collateral Document. Promptly
after receipt of a Release Request, the Collateral Agent shall deliver to each
Designated Representative (A) a copy of such Release Request and (B) written
notice stating that the Requester has requested a release of the subject item of
Collateral. Unless any Designated Representative demonstrates to the Collateral
Agent within five business days of such notice that such requested release would
violate the requirements of the Section 4.3 of the Existing Indenture or the
applicable Collateral Document with respect thereto, the Collateral Agent shall
release the item of Collateral that is the subject of such Release Request from
the Security Interests by executing whatever documents the Debtor has provided
with the Release Request and delivering the item of Collateral to the Debtor.
) Delivery Upon Termination. Upon termination of this Collateral Agency
Agreement, in accordance with its terms, in the case where the Collateral Agent
has not been required to exercise remedies to foreclose on the Collateral, the
Collateral Agent, at the request and sole expense of the Debtor and upon
confirmation of the Satisfaction of all Obligations by each Designated
Representative, will execute and deliver to the Debtor the proper instruments
(including UCC termination statements) acknowledging the termination of this
Security Agreement, and will duly assign, transfer and deliver to the Debtors,
without recourse, representation or warranty of any kind whatsoever, such of the
Collateral as may be in possession of the Secured Party and has not theretofore
been disposed of, applied or released.
Priority of Rights; Priority of Payments.
) Priority. As long as more than one class of Obligations remains
outstanding, unpaid or not Satisfied, the Trustee, on behalf of itself and each
holder of any Existing Notes, and the other Designated Representatives, on
behalf of the respective lenders comprising each other class of Secured
Beneficiaries, as applicable, agree that the interests of the holders of the
Existing Obligations, and the interests of the holders of the Secured
Obligations, in the Collateral, including their interests in any payments to be
made from the proceeds of any sale or other disposition thereof, shall,
irrespective of the time of perfection or creation of any security interests or
liens in the Collateral on behalf of and for the benefit of each Secured
Beneficiary, be equal and ratable to the extent and in the manner provided in
paragraph (b) below. In addition, the interests of the Collateral Agent, the
Trustee, on behalf of itself and the holders of Existing Notes, and the other
Designated Representatives, on behalf of the respective lenders comprising each
other class of Secured Beneficiaries, in the Collateral and the proceeds thereof
shall be as set forth in paragraph (b) below.
) Proceeds. Except as set forth in Section 8(e) or 10(c), the proceeds of
any sale or other disposition by the Collateral Agent or its agents or employees
of the whole or any part of the Collateral, together with any other monies held
by the Collateral Agent in the Collateral Account or otherwise held by the
Collateral Agent on behalf of the Designated Representatives for the benefit of
their respective Secured Creditors, shall be applied by the Collateral Agent in
accordance with this Section 11(b):
first, to the payment of any and all amounts advanced by a Secured Creditor
pursuant to Sections 5(f) and/or 6(e) of this Collateral Agency Agreement;
second, to the payment of any and all Obligations of the Company then due and
owing to the Collateral Agent, including without limitation any and all amounts
to compensate and indemnify the Collateral Agent pursuant to Section 6(d) and
any and all expenses and fees (including reasonable attorneys' fees);
third, to the pro rata payment of any and all (A) Existing Indenture
Obligations then due and owing to the Trustee on account of any and all expenses
and fees (including reasonable attorneys' fees) incurred by the Trustee in the
course of the performance of its duties under the Existing Indenture and (B) to
the other Designated Representatives for the payment of any or all amounts owing
to such Designated Representative on account of its fees and expenses for
serving as Designated Representative and/or administrative agent, servicer or
other person in a similar capacity under the applicable Secured Credit
Agreement, provided, however, that the aggregate amount payable under this
clause (B) shall not exceed the amount payable under the immediately preceding
clause (A) unless, at such time, the Outstanding Amount under the Existing
Indenture is less than the Outstanding Amount of Secured Obligations;
fourth, to the payment of the Obligations, pro rata in accordance with the
relative Outstanding Amounts of the applicable Obligations owed to the
respective Secured Beneficiaries;
fifth, if no Obligation is then due and owing, any surplus then remaining
shall be paid to the persons legally entitled thereto, subject, however, to
Section 9-504(1)(c) of the applicable Uniform Commercial Code, and thereafter to
the Debtors, as their respective interests may appear;
if, however, there remains any deficiency between (A) the aggregate amount of
the proceeds of the sale or other disposition of the Collateral and (B) the
aggregate sum of all Obligations referred to in subparagraphs (i) and (ii) of
this Section 19(b), then the Debtors shall remain liable to the persons
specified therein remaining unpaid to the extent of any such deficiency.
Exercise of Remedies Under the Collateral Documents.
) Secured Creditors' Duties. The Collateral Agent shall exercise remedies with
respect to the Collateral only in accordance with this Section 10. As long as
more than one class of Obligations remains outstanding, unpaid or not Satisfied,
the Designated Representatives and the Secured Beneficiaries shall not
themselves be entitled to exercise any remedies with respect to the Collateral.
) Designated Representatives' Notices. If any Designated Representative has
notice of a "default" or an "event of default", as such terms are defined in the
Existing Indenture or a Secured Credit Agreement, such Designated Representative
shall give notice (a "Default Notice"), to the Collateral Agent and (unless the
Company provided such notice to such Designated Representative under any Debt
Document) to the Company within three Business Days after it receives such
notice of "default" or "event of default". If holders of the Existing Notes by
notice to the Company or the Trustee, pursuant to the Existing Indenture, or if
the other Secured Beneficiaries in accordance with the applicable Secured Credit
Agreement, declare all unpaid principal and accrued interest to the date of
acceleration on the Existing Notes or the Secured Loans then outstanding, to be
due and payable in accordance with the applicable Debt Document, or if such
principal and interest ipso facto becomes due and payable pursuant to the
Existing Indenture or any Secured Credit Agreement, as applicable, the
applicable Designated Representative, on behalf of its respective Secured
Beneficiaries, under such Debt Document shall give notice to the Collateral
Agent and the other Designated Representatives of such acceleration (an
"Acceleration Notice"), within three Business Days after such acceleration.
Within three business days after receipt by the Collateral Agent of an
Acceleration Notice or a Default Notice from any Designated Representative, the
Collateral Agent shall provide each Designated Representative with a notice
stating that it has received an Acceleration Notice or a Default Notice, as
applicable, from a Designated Representative pursuant to Section 10(b) of this
Collateral Agency Agreement (such notice, a "Remedies Notice"). Upon receipt of
a Remedies Notice, each Designated Representative shall poll its holders in
accordance with the applicable Debt Document in order to enable the Collateral
Agent to determine the aggregate Outstanding Amount held by Secured
Beneficiaries who desire the remedies under the applicable Collateral Document
be exercised. If thereafter, the Collateral Agent shall receive notice from the
Designated Representatives indicating that a Majority of Secured Creditors are
instructing the Collateral Agent to exercise remedies under the applicable
Collateral Documents, the Collateral Agent shall, within three Business Days
after receipt of such notice, and provided that the event giving rise to the
applicable Default Notice or Acceleration Notice shall be continuing, as
provided under the applicable Debt Document, commence the taking of such actions
toward collection or enforcement of the Collateral Documents and the Collateral
(or any portion thereof), including without limitation action toward foreclosure
upon any Collateral, as the Collateral Agent deems appropriate (or as to which
it has been directed to take by the Majority Secured Creditors in accordance
with Section 5(c)), unless instructed otherwise by the Majority Secured
Creditors. Notwithstanding the foregoing, except as provided pursuant to Section
10(d), in no circumstance shall the Collateral Agent have any authority
hereunder to collect or enforce the Collateral Documents or the Collateral
without, or counter to, the instruction of the Majority Secured Creditors. If
any default or event of default which was the basis for the giving of such a
notice to the Collateral Agent shall be cured or waived, and, in the case where
there has been an acceleration, rescission of such acceleration has occurred, in
accordance with the terms of the applicable Debt Document, any direction to the
Collateral Agent to take any action in connection with such notice shall be
deemed rescinded upon notification by the Designated Representative under the
applicable Debt Document to the Collateral Agent of such cure or waiver and
rescission of acceleration, if applicable. The Collateral Agent shall not
exercise any remedies available to it except in accordance with the foregoing
provisions of this Section 10(b).
) Available Remedies. The Collateral Agent shall have the right to exercise
any remedies available pursuant to the Collateral Documents or applicable law.
) Action to Protect Collateral. Upon the occurrence of any "default" or
"event of default", as such terms are defined in the Existing Indenture or any
Secured Credit Agreement, the Collateral Agent may institute and maintain or
cause in the name of any Debtor or of the Collateral Agent or of the Designated
Representatives, or any of them, to be instituted and maintained, such suits and
proceedings as the Collateral Agent may be advised by counsel shall be necessary
or expedient to prevent any impairment of the Security Interests in
contravention of the terms of the Debt Documents. The Debtors jointly and
severally agree not to knowingly take, or permit to be taken, any action which
would impair the Collateral or the Security Interests.
Additional Secured Creditors. The Debtors may incur any or all of the
Secured Loans only upon receipt of an Officers' Certificate stating that the
following conditions are complied with: (i) the Secured Loan complies in all
respects with the definition of such term hereunder; (ii) each Secured
Beneficiary under the applicable Secured Credit Agreement appoints a
representative and such representative becomes the Designated Representative by
irrevocably appointing the Collateral Agent as its agent pursuant to an
agreement in substantially the same form contained in paragraph 1 of Annex A
hereto; (iii) the proposed Designated Representative acknowledges the Lien of
the Existing Trustee and the Collateral Agent pursuant to an agreement in
substantially the same form contained in paragraph 2 of Annex A hereto; (iv) the
proposed Designated Representative agrees to be bound by this Collateral Agency
Agreement pursuant to an agreement in substantially as contemplated by and
pursuant to paragraph 3 of Annex A hereto; (v) the Debtors deliver a Consent
Agreement substantially in the form contained in Annex B hereto; and (vi) the
Company delivers an Opinion of Counsel to the effect that (a) this Collateral
Agency Agreement continues to constitute a valid and binding obligation of each
of the Debtors, and the Consent Agreement constitutes a valid and binding
obligation of the Debtors and each is enforceable in accordance with its terms
against each of the Debtors, except to the extent that enforcement thereof may
be limited by (i) applicable bankruptcy, insolvency, reorganization, moratorium
or other similar laws affecting creditors' rights generally and (ii) general
principles of equity (whether considered in a proceeding at law or in equity),
and (b) the Lien of the Collateral Agent for the benefit of the Designated
Representative continues to constitute a perfected security interest in the
Collateral with the same priority as was in effect with respect to the
Collateral immediately prior to such Secured Loan incurrence.
Further Assurances. Each party hereto covenants to execute and deliver such
further instruments and to take such further action as the Collateral Agent may
at any time or times reasonably request in order to carry out the provisions and
intent of this Collateral Agency Agreement.
Notices. Any notices or other communications required or permitted
hereunder 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 any of the Debtors:
c/o Trump Atlantic City Associates
Mississippi Avenue and The Boardwalk
Atlantic City, New Jersey 08401
Attn: President
Telecopy Number: (609) 441-7926
with a copy to:
Willkie Farr & Gallagher
153 East 53rd Street
New York, New York 10021
Attn: Jack Nusbaum, Esq.
Telecopy Number: (212) 821-8111
To the Collateral Agent or the Existing Trustee:
c/o First Bank National Association
180 East Fifth Street
Minneapolis, Minnesota 55101
Attn: Corporate Trust Department
Telecopy Number: (612) 244-0711
To the other Designated Representatives at the address provided as
contemplated in Annex A hereto.
Any party hereto may by notice to each other party designate such
additional or different addresses as shall be furnished in writing by such
party. Any notice or communication to any party hereto 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 five
calendar days after mailing if sent by registered or certified mail (except that
a notice of change of address shall not be deemed to have been given until
actually received by the addressee). A copy of any notice given under this
Collateral Agency Agreement to any party shall also be given to each other party
hereto.
Binding Agreement; Assignment; Obligations Several. This Collateral Agency
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and permitted assigns. This Collateral Agency
Agreement may not be assigned by the Debtors; provided, however, that this
Collateral Agency Agreement shall be deemed to be automatically assigned by any
of the Debtors to any person which is a successor to any of the Debtors in
accordance with the Existing Indenture and the applicable Secured Credit
Agreement. This Collateral Agency Agreement shall be deemed to be automatically
assigned by the Collateral Agent to any person who succeeds to the Collateral
Agent in accordance with Section 7, and such assignee shall have all rights and
powers of, and act as, the Collateral Agent hereunder. This Collateral Agency
Agreement shall be deemed to be automatically assigned by the Trustee to the
person who succeeds to it in accordance with the Existing Indenture. Except as
otherwise expressly provided herein, the obligations of each of the parties
under this Collateral Agency Agreement are several and not joint, it being
expressly agreed that no Designated Representative shall be liable for the
failure of any other Designated Representative to perform its duties or
obligations hereunder. Each Holder, by its acceptance of an Existing Note,
consents to and agrees to be bound by the provisions hereof.
Governing Law. THE PARTIES HERETO EXPRESSLY ACKNOWLEDGE AND AGREE THAT, IN
ACCORDANCE WITH THE PROVISIONS OF NEW YORK GENERAL OBLIGATIONS LAW SECTION
5-1401 GOVERNING AGREEMENTS RELATING TO ANY OBLIGATION ARISING OUT OF A
TRANSACTION COVERING IN THE AGGREGATE NOT LESS THAN $250,000, THIS AGREEMENT
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK, EXCEPT TO THE EXTENT THAT THE VALIDITY OR THE PERFECTION OF ANY
SECURITY INTEREST HEREUNDER, OR REMEDIES HEREUNDER, IN RESPECT OF ANY PARTICULAR
COLLATERAL ARE GOVERNED BY THE LAWS OF A JURISDICTION OTHER THAN NEW YORK. ANY
LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT MAY BE BROUGHT IN
COURTS SITTING IN THE BOROUGH OF MANHATTAN OF THE STATE OF NEW YORK OR OF THE
UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK AND, BY EXECUTION
AND DELIVERY OF THIS AGREEMENT, EACH PARTY HERETO ACCEPTS FOR ITSELF AND IN
RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE JURISDICTION OF THE
AFORESAID COURTS.
Waiver of Jury Trial. THE PARTIES HERETO HEREBY WAIVE, TO THE FULLEST
EXTENT THEY MAY EFFECTIVELY DO SO UNDER APPLICABLE LAW, ANY RIGHT TO TRIAL BY
JURY WHICH ANY OF THEM MIGHT OTHERWISE HAVE UNDER THE CONSTITUTION OR ANY
STATUTE OF THE UNITED STATES OR OF ANY STATE IN ANY LEGAL ACTION OR PROCEEDING
BROUGHT WITH RESPECT TO, OR ARISING OUT OF, THIS AGREEMENT.
Effectiveness; Termination. This Collateral Agency Agreement shall become
effective on the date first written above. This Collateral Agency Agreement
shall become binding upon any Designated Representative and its respective
Secured Beneficiaries that become a party hereto subsequent to the effectiveness
of this Collateral Agency Agreement upon execution of an agreement substantially
in the form of Annex A to this Collateral Agency Agreement by such Designated
Representative. This Collateral Agency Agreement shall bind any Person which is
required to become a Guarantor under the Existing Indenture upon execution of
this Collateral Agency Agreement by such Person. This Collateral Agency
Agreement shall remain effective until, and terminate when, all Secured
Obligations are Satisfied; provided, that once the Obligations owed to any
Secured Beneficiary shall have been Satisfied, such Secured Beneficiary and the
applicable Designated Representative shall have no further rights or obligations
hereunder, unless and until such Secured Beneficiary and the applicable
Designated Representative again becomes a Secured Beneficiary or Designated
Representative, as the case may be, by becoming a holder of an Obligation or a
representative thereof, as the case may be. Upon termination of this Collateral
Agency Agreement, the Collateral Agent shall reassign and redeliver the
Collateral held by it, and not sold, transferred or disposed of pursuant to any
other provision of this Collateral Agency Agreement, in accordance herewith.
Such reassignment and redelivery shall be without warranty by or recourse to the
Collateral Agent, and shall be at the expense of the Company. Thereafter, the
Collateral Agent shall, at the Company's expense, deliver to the Company and
each Designated Representative (i) written acknowledgement of cancellation of
this Collateral Agency Agreement and (ii) such other documents as are reasonably
requested by the Company and adequate for proper filing or recording in such
offices and such jurisdictions as the Company reasonably deems necessary to
evidence such termination.
Amendments, Supplements and Waivers.
) Consent of Holders. With the written consent from or on behalf of the
Majority Secured Creditors, the Collateral Agent and the Debtors may, from time
to time, enter into written supplemental agreements for the purpose of amending,
modifying or waiving any provision of this Collateral Agency Agreement or
changing in any manner the rights of the Collateral Agent, the Designated
Representative, the Debtors, hereunder or thereunder; provided, however, that no
such supplemental agreement shall, without the written consent of each Secured
Beneficiary affected thereby:
change the respective percentages of outstanding aggregate principal amount of
Existing Notes and Secured Loans specified in the definition of Majority Secured
Creditors contained herein or otherwise entitled to take any action hereunder,
without the written consent of each Secured Creditor;
amend, modify or waive any provision of this Section 18 without the written
consent of each Designated Representative;
amend, modify or waive any provision of Section 11 without the written consent
of each Designated Representative; or
amend, modify or waive any provision of this Collateral Agency Agreement such
that either (a) the holders of the Existing Indenture Obligations or the other
Secured Beneficiaries are materially and adversely affected or (b) the holders
of the Existing Indenture Obligations or any other Secured Beneficiaries are
benefited and the Secured Beneficiaries represented by one or more Designated
Representatives are materially and adversely affected (without the written
consent of a majority of the Outstanding Amount of the adversely affected
Obligations).
Any such supplemental agreement shall be binding upon the Debtors, the
Collateral Agent, the Designated Representatives and each Secured Beneficiary
and their respective successors and permitted assigns. The Collateral Agent
shall not enter into any such supplemental agreement unless it shall have
received an Officers' Certificate of the Company reasonably satisfactory to the
Collateral Agent to the effect that the execution, delivery and performance of
such supplemental agreement will not result in a Default or Event of Default.
) Without Consent of Holders. Notwithstanding the provisions of Section
18(a), without having to seek or receive the approval of the Majority Secured
Creditors, the Debtors and the Collateral Agent may at any time and from time to
time, without the consent of the Designated Representatives, enter into
Collateral Documents after the date hereof, in which a Security Interest is
granted in favor of the Collateral Agent on behalf of all (but no fewer than
all) Secured Beneficiaries, or one or more amendments or agreements supplemental
hereto or to any Collateral Document, in form satisfactory to the Collateral
Agent:
to add to the covenants of the Debtors for the benefit of the Secured
Beneficiaries or to surrender any right or power herein conferred upon the
Debtors;
to mortgage, pledge, hypothecate or grant a security interest in favor of the
Collateral Agent, as additional security for the payment and performance of the
Obligations, in any property, including any which is required to be mortgaged,
pledged or hypothecated, or in which a security interest is required to be
granted, to the Collateral Agent pursuant to any Collateral Document or
otherwise;
to cure any ambiguity, defect or inconsistency or to make any other change
that does not adversely affect the rights of any Secured Beneficiary hereunder
or under any Collateral Document; and
to add to the provisions of this Agreement which may not be modified or
amended without the consent of all of the Designated Representatives.
Any such supplemental agreement shall be binding upon the Debtors, the
Collateral Agent, the Designated Representatives and each Secured Beneficiary
and their respective successors and permitted assigns. The Collateral Agent
shall not enter into any such supplemental agreement unless it shall have
received an Officers' Certificate of the Company reasonably satisfactory to the
Collateral Agent to the effect that the execution, delivery and performance of
such supplemental agreement will not result in a Default or Event of Default.
) Notice of Amendments. Notice of any amendment, modification or waiver to
any Collateral Document or of any additional or supplemental agreements entered
into in accordance with Section 18(a) or (b) shall be given by the Collateral
Agent to each of the Designated Representatives.
Inconsistent Provisions. If any provision of this Collateral Agency
Agreement shall be inconsistent with, or contrary to, any provision in any other
Collateral Document or any Debt Document, such provision of this Collateral
Agency Agreement shall be controlling, and shall supersede such inconsistent
provision to the extent necessary to give full effect to all provisions
contained in this Collateral Agency Agreement.
Severability. In the event that any provision contained in this Collateral
Agency Agreement shall for any reason be held to be illegal or invalid under the
laws of any jurisdiction, such illegality or invalidity shall in no way impair
the effectiveness of any other provision hereof or of such provision under the
laws of any other jurisdiction; provided, that in the construction and
enforcement of such provision under the laws of the jurisdiction in which such
holding of illegality or invalidity exists, and to the extent only of such
illegality or invalidity, this Collateral Agency Agreement shall be construed
and enforced as though such illegal or invalid provision had not been contained
herein.
Headings. Section headings used herein are inserted for convenience only
and shall not in any way affect the meaning or construction of any provision of
this Collateral Agency Agreement.
Counterparts. This Collateral Agency Agreement may be executed in any
number of counterparts, each of which when so executed and delivered shall be an
original, and all of which shall together constitute one and the same
instrument. A complete set of counterparts shall be lodged with the Collateral
Agent and with each Secured Creditor.
IN WITNESS WHEREOF, the Collateral Agent and the Existing Trustee, for the
benefit of the holders of the Existing Notes, the Company, Funding and the
Guarantors have caused this Agreement to be executed and delivered by their
respective officers thereunto duly authorized as of the day and year first above
written.
FIRST BANK NATIONAL ASSOCIATION,
as Collateral Agent
By:______________________________________________
Name:
Title:
FIRST BANK NATIONAL ASSOCIATION,
as the Trustee
By:______________________________________________
Name:
Title:
TRUMP ATLANTIC CITY ASSOCIATES, as Company
BY: TRUMP ATLANTIC CITY HOLDING INC.,
its general partner
By:______________________________________________
Name:
Title:
TRUMP ATLANTIC CITY FUNDING, INC., as Funding
By:_________________________________________
Name:
Title:
TRUMP PLAZA ASSOCIATES, as Guarantor
BY: TRUMP ATLANTIC CITY CORPORATION, its general partner
By:_________________________________________
Name:
Title:
TAJ MAHAL ASSOCIATES, as Guarantor
BY: TRUMP ATLANTIC CITY CORPORATION, its general partner
By:_________________________________________
Name:
Title:
TRUMP ATLANTIC CITY CORPORATION,
as Guarantor
By:_________________________________________
Name:
Title:
[EACH ADDITIONAL GUARANTOR FROM TIME TO TIME], as Guarantor
By:_________________________________________
Name:
Title:
ANNEX A
First Bank National Association, as Collateral Agent
180 East Fifth Street
St. Paul, Minnesota 55101
The undersign intends to enter into [credit agreement] with [Trump Atlantic
City Associates] [and/or] [its subsidiar[y][ies]]. Such [credit agreement]
provides that the obligations thereunder are to be secured by the collateral
which is subject to the lien you hold as collateral agent, pursuant to the
Collateral Agency Agreement originally dated April 17, 1996 (the "Collateral
Agency Agreement") by and among yourself, as collateral agent, First Bank
National Association, as trustee under an indenture originally dated April 17,
1996, and the other parties signatory thereto. Capitalized terms not otherwise
defined herein have the respective meanings ascribed to them in the Collateral
Agency Agreement. The undersigned represents and warrants that it is the
designated representative of the lenders under the [credit agreement] and that
such Secured Beneficiaries have consented to be bound by the Collateral Agency
Agreement.
1. The undersigned [, as the sole [Designated Representative] of the
lender[s] under the [credit agreement],] hereby appoint[s] you as Collateral
Agent to act for its benefit and irrevocably authorizes and directs you to take
all actions described in Section 2(a), 2(b) and 2(c) of the Collateral Agency
Agreement.
2. The undersigned [, as such [Designated Representative],] hereby agrees
that its interest as a beneficiary of your security interest in the Collateral,
including its interests in any payments to be made from the proceeds of any sale
or other disposition thereof, shall, irrespective of the time of perfection or
creation of any security interests or liens in the Collateral or the time of
appointment of you as agent for the respective Designated Representative, be
equal and ratable with the other Secured Creditors to the extent and manner
provided in Section 11 of the Collateral Agency Agreement.
3. From and after this date, the undersigned, on behalf of itself and its
successors and assigns, agrees to be bound by the terms and subject to the
conditions contained in the Collateral Agency Agreement and shall by its
signature below be deemed to be a party signatory to the Collateral Agency
Agreement.
The address for notices to the Designated Representative under the
Collateral Agency Agreement is:
Very truly yours,
[DESIGNATED REPRESENTATIVE]
ACKNOWLEDGED AND ACCEPTED BY:
First Bank National Association, as Collateral Agent
By:_________________________________________
Name:
Title:
ANNEX B
DEBTORS' CONSENT
First Trust National Association, as Collateral Agent
180 East Fifth Street
St. Paul, Minnesota 55101
Each of the Company, Funding and each Guarantor hereby consents to the
addition of __________ as a party to the Collateral Agency Agreement dated as
April 17, 1996 among _______________ and confirms the grant set forth in each of
the Collateral Documents (as defined in the Collateral Agency Agreement) of a
security interest in, or pledge or assignment of, the Collateral (as defined in
the Collateral Agency Agreement) to the Collateral Agent for the benefit of the
Designed Representatives. As used herein, Designated Representatives shall mean
the Trustee (as defined in the Collateral Agency Agreement), any other person
who prior to the date hereof became a party to the Collateral Agency Agreement
by executing an Agency Appointment Agreement (as defined in the Collateral
Agency Agreement) prior to the date hereof.
TRUMP ATLANTIC CITY ASSOCIATES,
for itself and its subsidiaries
BY: TRUMP ATLANTIC CITY HOLDING, INC., its general partner
By:_________________________________________
Name:
Title:
TRUMP ATLANTIC CITY FUNDING, INC., as Funding
By:_________________________________________
Name:
Title:
TRUMP PLAZA ASSOCIATES, as Guarantor
BY: TRUMP ATLANTIC CITY CORPORATION, its general partner
By:_________________________________________
Name:
Title:
TAJ MAHAL ASSOCIATES, as Guarantor
BY: TRUMP ATLANTIC CITY CORPORATION, its general partner
By:_________________________________________
Name:
Title:
TRUMP ATLANTIC CITY CORPORATION, as Guarantor
By:_________________________________________
Name:
Title:
[EACH ADDITIONAL GUARANTOR FROM TIME TO TIME], as Guarantor
By:_________________________________________
Name:
Title: