EXHIBIT 4.30
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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 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
____________
Dated as of April [17], 1996
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COLLATERAL AGENCY
AGREEMENT
COLLATERAL AGENCY AGREEMENT (the "Collateral Agency Agreement"),
dated as of April [17], 1996, by and among First Bank National Association in
its capacity as collateral agent hereunder (the "Collateral Agent"); First Bank
National Association (the "Trustee"), in its capacity as trustee under the
Existing Indenture (as defined herein); the other secured creditors who by act
of their representatives 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, Taj Mahal Associates, a New Jersey general
partnership, Trump Taj Mahal Corporation, a Delaware corporation, and Trump
Plaza Funding, Inc., a New Jersey 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 in the
above sentence or in Section 1 hereof shall have the meanings set forth in the
Existing Indenture.
W I T N E S S E T H:
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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, the Debtors are concurrently executing and delivering the
Collateral Documents to which they are a party to the Trustee;
WHEREAS, under the Existing Indenture the Debtors are permitted,
subject to certain conditions, to incur additional secured indebtedness or
guarantees;
WHEREAS, the parties hereto desire that the such additional secured
indebtedness of the Debtors be permitted to be secured equally and ratably with
the Existing Indenture Obligations.
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:
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Section 1. Definitions. As used herein, the following terms
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shall have the meanings set forth in this Section 1, and all other capitalized
terms not otherwise defined herein shall have the 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
$50,000,000.
"Agency Appointment Agreement" means an agreement substantially in
the form of Annex A attached hereto signed on behalf of a secured creditor by
its sole Designated Representative and accepted by the Collateral Agent.
"Cash Collateral" means Collateral consisting of cash.
"Collateral" means property that is subject to the Liens created by
the Collateral Documents.
"Collateral Documents" means the "Mortgage Documents" (as defined
in the Existing Indenture) the Security Agreement between the Debtors and the
Collateral Agent dated April 11, 1996, as it may be amended, modified or
supplemented hereafter 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 Representative" means the Trustee with respect to the
Existing Indenture and means the person who executes the Agency Appointment
Agreement with respect to each other Secured Creditor.
"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.
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"Existing Indenture Obligations" means the "Indenture Obligations"
as defined in the Existing Indenture.
"Existing Notes" means the Company's and Funding's First Mortgage
Notes due 2006 in an aggregate principal amount originally outstanding of
$1,100,000,000, issued pursuant to the Existing Indenture, including the
guarantees thereof by the Guarantors.
"Collateral Agency Agreement" means this Collateral Agency
Agreement among the Collateral Agent, the Existing Trustee, the other Secured
Creditors, the Debtors, as this Collateral Agency Agreement may be amended,
modified or supplement from time to time.
"Majority Secured Creditors" means the holders of more than 50% in
aggregate principal amount of the Existing Notes and Secured Loans Outstanding
at such time, taken as a whole.
"Obligations" means the Existing Indenture Obligations and the
Secured Obligations.
"Opinion of Counsel" means a written opinion from legal counsel who
is reasonably acceptable to the Collateral Agent.
"Required Secured Creditors" means the holders of more than 25% in
aggregate principal amount of the Existing Notes and Secured Loans Outstanding
at such time, taken as a whole.
"Satisfied" means (a) payment in full and satisfaction of all of
the relevant Obligations and (b) receipt by the relevant Secured Creditor 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) bona fide financial
projections of each of the Debtors demonstrating that the Company, Funding and
the Guarantors each is expected to remain solvent for a period of at least
ninety days after such time.
"Secured Credit Agreement" means collectively, each document
providing Indebtedness of the Debtors which Indebtedness is permitted to be
incurred under the Existing Indenture and is also permitted to be secured under
Section __ or Section __ of the Existing Indenture.
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"Secured Creditors" means the Trustee and the Designated
Representatives.
"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 Loan 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
Loan 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 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.
Section 2. Appointment. The Trustee, for the benefit of the
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holders of the Existing Notes hereby designates and appoints and the other
Secured Creditors by executing the Agency Appointment Agreement designates and
appoints the Collateral Agent, and the Collateral Agent hereby and thereby
accepts such appointment, to serve as collateral agent and representative of
the Trustee, for the benefit of the holders of the Existing Notes, as
collateral agent and representative of the other Secured Creditors which 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. 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 holder of a Secured Obligation shall by its Designated
Representatives execution of the Agency Appointment Agreement irrevocably
authorizes and directs, the Collateral Agent:
(i) to take such action on behalf of the Secured
Creditors 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
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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; and
(ii) to exercise, on behalf of the Secured Creditors,
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.
Section 3. Nature of Duties. Neither the Collateral Agent nor
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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 Creditor 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.
Section 4. Advices. The Collateral Agent shall forward
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promptly to each Secured Creditor 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 Secured Creditor, 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.
Section 5. Rights of Collateral Agent.
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(a) Right to Rely. The Collateral Agent may rely on any
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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.
(b) Attorneys/Agents. The Collateral Agent may act
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through its attorneys and agents and shall not be responsible for the
misconduct or negligence of any agent appointed with due care.
(c) Good Faith Belief in Authority, Rights or Powers.
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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.
(d) No Investigation. The Collateral Agent shall not be
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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.
(e) Obligation to Act upon Instructions. The Collateral
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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 Secured Creditors, pursuant to the provisions of any Debt
Document, unless such Secured Creditor 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 Required 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.
(f) Secured Creditors. The Collateral Agent may deem
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and treat the Trustee and the Designated Representatives as the owner of the
applicable
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Secured Obligation. 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 Loan Agreement.
No individual holder of any Obligation shall have the right to direct the
Collateral Agent to act other than through its Designated Representative.
Section 6. Compensation and Indemnification.
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(a) Compensation and Expenses. The Company agrees to
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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.
(b) Stamp and Other Taxes. The Company hereby agrees to
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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.
(c) Filing Fees, Excise Taxes, Etc. The Company hereby
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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.
(d) Indemnification of Collateral Agent. The Debtors
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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
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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.
(e) Right to Advance Costs. In the event the
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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 Secured Creditor 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.
(f) Survival of Obligations. All obligations set forth
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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.
Section 7. Resignation by or Removal of the Collateral Agent.
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(a) Resignation; Removal. The Collateral Agent may
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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 20
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.
(b) Appointment of Successor. Upon any such notice of
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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.
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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.
(c) Effectiveness of Resignation or Removal. A
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successor Collateral Agent shall deliver a written acceptance of its
appointment to the retiring Collateral Agent, the Secured Creditors 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.
(d) Consolidation, Merger, Etc. If the Collateral Agent
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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.
(e) Compensation Continuing. Any person or entity
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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.
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Section 8. Held Collateral.
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(a) Possession. Notwithstanding anything in the
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Collateral Documents to the contrary, any Collateral that comes into the
possession or control of any Secured Creditor or any Debtor (the "Held
Collateral") shall be delivered by any Secured Creditor or the Debtors to and
shall be held by the Collateral Agent in its name on behalf of the Secured
Creditors
(b) Release. In the event that any Secured Creditor
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receives a Company Request from a Debtor with respect to the release of the
Held Collateral (the maker of such Company request being referred to herein as
the "Requester"), and the Requester has fulfilled all the requirements of the
applicable Debt Document, the Collateral Agent shall deliver to each Secured
Creditor (A) a copy of such Company Request and (B) written notice (a "Held
Collateral Release Notice") stating that the Requester has requested a release
of the Held Collateral. In the event that all Secured Creditors return an
executed Held Collateral Release Notice to the Collateral Agent, the Collateral
Agent shall release the Held Collateral that is the subject of such Company
Request from the Security Interests by executing whatever documents the
Requester has provided with the Company Request and delivering the Held
Collateral to the Requester.
(c) Delivery Upon Termination. Upon termination of this
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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 shall deliver all Held Collateral, to the
persons legally entitled thereto, and thereafter to the Debtors, as their
respective interests may appear.
Section 9. Priority of Rights; Priority of Payments.
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(a) Priority. As long as all or any portion of the
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Existing Indenture Obligations and all or any portion of Secured Obligations
remains outstanding, unpaid or not Satisfied, the Trustee and each holder of
any Existing Notes and each other Secured Party 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 Creditor, be equal and ratable to the extent and in the manner provided
in paragraph (b) below. In addition, the interests of the
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Collateral Agent, the Trustee, on behalf of the holders of Existing Notes, and
the other Secured Creditors in the Collateral and the proceeds thereof shall be
as set forth in paragraph (b) below.
(b) Proceeds. Except as set forth in Section 8(e) or
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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 Representatives for the
benefit of their respective Secured Creditors, shall be applied by the
Collateral Agent in accordance with this Section 11(b):
(i) first, (A) to the payment of any and all
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amounts advanced by a Secured Creditor pursuant to Sections 5(f) and/or
6(e) of this Collateral Agreement.
(ii) second, (A) to the payment of any and all
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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);
(iii) third, (A) to the payment of any and all
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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.
(iv) fourth, any surplus then remaining, pro
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rata in accordance with the relative outstanding principal amounts of
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Existing Notes and other Secured Loans, respectively, (A) to the Trustee
for payment in accordance with the Existing Indenture to the holders of
the Existing Notes on account of any of the Existing Indenture
Obligations owed to such holders and (B) to the other Secured Creditors
in accordance with the applicable Secured Credit Agreement.
(v) fifth, if no Obligation is then due and
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owing, any surplus then remaining shall be paid to the persons legally
entitled thereto, subject, however, to Section 9-504(1)(c) of the
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applicable Uniform Commercial Code, and thereafter to the Debtors, as
their respective interests may appear;
(vi) 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 11(b), then the Debtors
shall remain liable to the persons specified therein remaining unpaid to
the extent of any such deficiency.
Section 10. Exercise of Remedies Under the Collateral
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Documents.
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(a) Secured Creditors' Duties. The Collateral Agent
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shall exercise remedies with respect to the Collateral only in accordance with
this Section 12. The Secured Creditors shall not be entitled to exercise any
remedies with respect to the Collateral.
(b) Secured Creditors' Notices. If any Secured Creditor
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has notice of a Default or an Event of Default, such Secured Creditor shall
give notice to the other Secured Creditors, the Collateral Agent and (unless
the Company provided such notice to such Secured Creditor under any Debt
Document) the Company within three Business Days after such notice of Default
or Event of Default. If holders of the Existing Notes by notice to the Company
or the Trustee, pursuant to Section [7.2] of the Existing Indenture, or if the
other Secured Creditors in accordance with the applicable Secured Credit
Agreement declare all unpaid principal and accrued interest to the date of
acceleration on the Existing Notes, 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
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Section 7.2 of the Existing Indenture or comparable provisions of any Secured
Credit Agreement, as applicable, the Secured Creditor under such Debt Document
shall give notice to the Collateral Agent and the other Secured Creditors of
such acceleration (an "Acceleration Notice") within three Business Days after
such acceleration. Upon receipt by the Collateral Agent of an Acceleration
Notice from the Majority Secured Creditors or notice of an Event of Default
from the Majority Secured Creditors, the Collateral Agent shall, within three
Business Days after receipt of such notice, 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,
unless instructed otherwise by the Required Secured Creditors. If any Default
or Event of Default which was the
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basis for the giving of 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
Secured Creditor under the applicable Debt Document to the Collateral Agent of
such cure or waiver and rescission of acceleration, if applicable.
(c) Available Remedies. The Collateral Agent shall have
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the right to exercise any remedies available pursuant to the Collateral
Documents or applicable law.
Section 11. Additional Secured Creditors
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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) such Secured Creditor irrevocably
appoints 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 Secured Creditor acknowledges the lien of 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 Secured Creditor
agrees to be bound by this Collateral Agency Agreement pursuant to an agreement
in substantially the same form contained in paragraph 3 of Annex A hereto; (iv)
the Debtors delivers 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 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), (b) the Lien of the Collateral
Agent for the benefit of the Secured Creditors continues to constitute a
perfected first priority security interest in the Collateral.
Section 12. Further Assurances. Each party hereto covenants
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to execute and deliver such further instruments and to take such further action
as the
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Collateral Agent or any Secured Creditor may at any time or times reasonably
request in order to carry out the provisions and intent of this Agreement.
Section 13. Notices. Any notices or other communications
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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 the Debtors:
c/o Trump Atlantic City Associates
Mississippi Avenue and The Boardwalk
Atlantic City, New Jersey 08401
Attn: Robert M. Pickus, Esq.
Telecopy Number: (609) 441-7926
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 Secured Creditors 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.
Any party hereto may give notice to the holders of the Existing Notes at the
addresses set forth for them in the register kept by the Registrar under the
Existing Indenture or may request that the Trustee notify the holders of the
Existing Notes at such addresses.
15
Section 14. 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 Secured
Creditor shall be liable for the failure of any other Secured Creditor 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.
Section 15. 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.
16
Section 16. 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.
Section 17. Effectiveness; Termination. This Collateral
--------------------------
Agency Agreement shall become effective on the date first written above. This
Collateral Agency Agreement shall become binding upon any Secured Creditor who
becomes a party hereto subsequent to the effectiveness of this Collateral
Agency Agreement upon execution of any agreement substantially in the form of
Annex A to this Collateral Agency Agreement by such Secured Creditor. 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 Creditor shall have
- --------
been Satisfied, such Secured Creditor shall have no further rights or
obligations hereunder, unless and until such Secured Creditor again becomes a
Secured Creditor by becoming a holder of an Obligation. 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 Secured Creditor (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.
Section 18. Amendments, Supplements and Waivers.
-----------------------------------
(a) Consent of Holders. With the written consent of the
------------------
Majority Secured Creditors, the Collateral Agent, 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 Secured
Creditors,
17
the Debtors, hereunder or thereunder; provided, however, that no such
-------- -------
supplemental agreement shall:
(i) change the respective percentages of outstanding
aggregate principal amount of Existing Notes and Secured Loans specified
in the definitions of Majority Secured Creditors or Required Secured
Creditors contained herein or otherwise entitled to take any action
hereunder, without the written consent of each Secured Creditor;
(ii) amend, modify or waive any provision of this
Section 19 without the written consent of each Secured Creditor;
(iii) amend, modify or waive any provision of Section
11 without the written consent of each Secured Creditor; or
(iv) 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 Creditors are
materially and adversely affected or (B) the holders of the Existing
Indenture Obligations or any other Secured Creditors are benefitted and
any other Secured Creditor is materially and adversely affected; without
the written consent of a majority in aggregate principal amount of the
adversely affected Obligations.
Any such supplemental agreement shall be binding upon the Company, the
Guarantors, the Collateral Agent and each Secured Creditor 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.
(b) Without Consent of Holders. Notwithstanding the
--------------------------
provisions of Section 19(a), the Collateral Agent upon approval of the Majority
Secured Creditors, the Debtors may, at any time and from time to time, without
the consent of each Secured Creditor, enter into additional agreements, in
which a security interest is granted in favor of the Collateral Agent on behalf
of the Secured Creditors, or one or more amendments or agreements supplemental
hereto or to any Collateral Document, in form satisfactory to the Collateral
Agent:
18
(i) to add to the covenants of the Debtors for the
benefit of the Secured Creditors or to surrender any right or power
herein conferred upon the Debtors;
(ii) 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;
and
(iii) to cure any ambiguity, defect or inconsistency or
to make any other change that does not adversely affect the rights of any
Secured Creditor hereunder or under any Collateral Document.
(c) 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 19(a) or (b)
shall be given by the Collateral Agent to each of the Secured Creditors.
Section 19. 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.
Section 20. 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.
19
Section 21. 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.
Section 22. 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.
20
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:
-----------------------------------
Its:
FIRST BANK NATIONAL ASSOCIATION,
as the Existing Trustee
By:
-----------------------------------
Its:
TRUMP ATLANTIC CITY ASSOCIATES,
as Company
BY: TRUMP HOTELS & CASINO RESORTS
HOLDINGS, L.P., its general partner
BY: TRUMP HOTELS & CASINO RESORTS,
INC., its general partner
By:
-----------------------------------
Its:
TRUMP ATLANTIC CITY FUNDING, INC.,
as Funding
21
By:
-----------------------------------
Its:
TRUMP PLAZA ASSOCIATES,
as Guarantor
BY: TRUMP ATLANTIC CITY ASSOCIATES,
its general partner
BY: TRUMP HOTELS & CASINO RESORTS HOLDINGS,
L.P., its general partner
BY: TRUMP HOTELS & CASINO RESORTS, INC.,
its general partner
By:
-----------------------------------
Its:
TAJ MAHAL ASSOCIATES,
as Guarantor
BY: TRUMP ATLANTIC CITY ASSOCIATES,
its general partner
BY: TRUMP HOTELS & CASINO RESORTS HOLDINGS,
L.P., its general partner
BY: TRUMP HOTELS & CASINO RESORTS, INC.,
its general partner
22
By:
-----------------------------------
Its:
TRUMP TAJ MAHAL CORPORATION,
as Guarantor
By:
-----------------------------------
Its:
TRUMP PLAZA FUNDING, INC.,
as Guarantor
By:
-----------------------------------
Its:
[ADDITIONAL GUARANTORS FROM TIME TO
TIME], as Guarantors
By:
-----------------------------------
Its:
23
ANNEX A
First Trust 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 Trust National Association, as trustee under an indenture 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.
1. The undersigned hereby appoints you as Collateral Agent to act for its
benefit and irrevocably authorizes and directs you to take all actions
described in Section 2(a) and 2(b) of the Collateral Agency Agreement.
2. The undersigned hereby agrees that its 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, be
equal and ratable with the other Secured Creditors to the extent and manner
provided in Section 11 of the Collateral Agency Agreement. The undersigned
acknowledges the Lien you [and the other Secured Creditors] hold under the
Collateral Agency Agreement on the Collateral and consents to any Permitted
Liens.
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 be deemed to
be a party signatory to the Collateral Agency Agreement.
Very truly yours,
[Secured Creditor]
24
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
Agreements) of a security interest in, or pledge or assignment of, the
Collateral (as defined in the Collateral Agency Agreements) to the Collateral
Agent for the benefit of the Secured Parties (as defined herein). As used
herein, Secured Parties shall mean the Secured Creditors identified in the
Collateral Agency Agreement and shall include, without limitation, [specify new
secured party].
25