Intercreditor Agreement - Deutsche Bank Trust Co. Americas, U.S. Bank NA, Trump's Castle Associates LP and Trump's Castle Funding Inc.
INTERCREDITOR AGREEMENT
among
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Administrative Agent under the Credit Agreement
U.S. BANK NATIONAL ASSOCIATION,
(f/k/a First Bank National Association)
as the Trustee under the Mortgage Note Indenture
and
U.S. BANK NATIONAL ASSOCIATION,
(f/k/a First Bank National Association)
as the Trustee under the PIK Note Indenture
and consented to by
TRUMP'S CASTLE ASSOCIATES, L.P., and
TRUMP'S CASTLE FUNDING, INC.
Dated as of June 12, 2002
Record and Return to:
John Tripodoro
Cahill Gordon & Reindel
80 Pine Street
New York, NY 10005
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INTERCREDITOR AGREEMENT
INTERCREDITOR AGREEMENT, dated as of June 12, 2002, by and among
DEUTSCHE BANK TRUST COMPANY AMERICAS, as Administrative Agent (the
"Administrative Agent") under a certain Credit Agreement dated as of the date
hereof (as the same may from time to time be amended, supplemented or otherwise
modified, the "Credit Agreement") among Trump's Castle Associates, L.P., a New
Jersey limited partnership, as Borrower (the "Partnership"), the lending
institutions (the "Lenders") listed therein, the Administrative Agent; U.S. BANK
NATIONAL ASSOCIATION (f/k/a First Bank National Association), as Trustee (the
"Mortgage Note Trustee") under a certain Mortgage Note Indenture dated as of
December 28, 1993 (as the same may from time to time be amended, supplemented or
otherwise modified, the "Mortgage Note Indenture") among Trump's Castle Funding,
Inc., a New Jersey corporation ("Funding"), as Issuer, the Partnership, as
Guarantor, and the Mortgage Note Trustee; and U.S. BANK NATIONAL ASSOCIATION
(f/k/a First Bank National Association), as Trustee (the "PIK Note Trustee")
under a certain PIK Note Indenture dated as of December 28, 1993 (as the same
may from time to time be amended, supplemented or otherwise modified, the "PIK
Note Indenture") among Funding, as Issuer, the Partnership, as Guarantor, and
the PIK Note Trustee; and consented to by Funding and the Partnership. The
Mortgage Note Trustee and the PIK Note Trustee are sometimes referred to
together as the "Subordinated Notes Trustee."
WITNESSETH:
WHEREAS, pursuant to an indenture dated as of April 17, 1998 among
Funding, as Issuer, the Partnership, as Guarantor, and U.S. Bank National
Association (the "Old Funding Senior Notes Trustee"), as Trustee, Funding issued
$62,000,000 aggregate principal amount of its 10 1/4% Senior Secured Notes due
2003 ("Old Funding Senior Notes");
WHEREAS, pursuant to an indenture dated as of April 17, 1998 among
Trump's Castle Hotel & Casino, Inc. ("TCHI"), as Issuer, the Partnership, as
Guarantor, and U.S. Bank National Association (the "Old TCHI Senior Notes
Trustee"), as Trustee, TCHI issued $5,000,000 aggregate principal amount of its
10 1/4% Senior Secured Notes due 2003 ("Old TCHI Senior Notes," together with
the Old Funding Senior Notes, the "Old Senior Notes");
WHEREAS, pursuant to the Mortgage Note Indenture, Funding issued its
11 3/4% Mortgage Notes due 2003 (the "Mortgage Notes");
WHEREAS, pursuant to the PIK Note Indenture, Funding issued its
Subordinated Pay-In-Kind Notes due 2005 (the "PIK Notes);
WHEREAS, pursuant to the Credit Agreement, the Partnership has
borrowed loans in an aggregate principal amount of $70,000,000 (the "Credit
Facility Loans");
WHEREAS, proceeds of the Credit Facility Loans are being used to
refinance and replace the Old Senior Notes and to pay fees and expenses related
thereto;
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WHEREAS, the liens and security interests previously granted to the
Old Senior Notes Trustee had been senior to the liens and security interests
granted to the Mortgage Note Trustee;
WHEREAS, Lenders of the Credit Facility Loans have conditioned the
making of such loans on the Credit Facility Loans having a first priority lien
and security interest in and upon the Trust Estate (as hereafter defined) that
is senior, and not pari passu with or subordinate to, the liens and security
interests in and upon the Trust Estate granted to the Mortgage Note Trustee;
WHEREAS, the PIK Notes were and are to remain unsecured; and
WHEREAS, the Representatives in their various capacities desire to set
forth their relative rights and obligations with respect to the Credit
Agreement, Mortgage Note Indenture and PIK Note Indenture and related matters.
NOW THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby agree as follows:
SECTION 1. Definitions.
1.1. As used in this Intercreditor Agreement and unless otherwise
expressly indicated, all capitalized words and terms not defined herein shall
have the respective meanings and be construed herein as such words or terms are
defined or construed in the Mortgage Note Indenture.
1.2. For the purposes of this Intercreditor Agreement, the following
terms shall have the following meanings.
"Credit Facility Documents" means all instruments, documents and
agreements, executed or delivered pursuant to or in connection with the Credit
Agreement and/or the Credit Facility Mortgages, as the same may from time to
time be amended, supplemented or otherwise modified.
"Credit Facility Mortgages" means any and all mortgages and other
security instruments now existing or hereafter arising granted by the
Partnership which secure, in whole or in part, directly or indirectly, through
assignment or otherwise, the Credit Facility Obligations.
"Credit Facility Obligations" means all indebtedness, obligations and
other liabilities of the Partnership to any one or more Representatives and any
and all other Persons pursuant to or arising from the Credit Agreement, the
Credit Facility Loans, the Credit Facility Mortgages and the other Credit
Facility Documents, whether direct or indirect, absolute or contingent, secured
or unsecured, due or to become due, now existing or hereafter arising,
including, without limitation, all interest, fees, charges, costs and expenses
(including, without limitation, reasonable attorneys' fees and disbursements),
for which the Partnership or any other Person is now or hereafter becomes liable
to pay to the Trustee(s) or any other Persons pursuant to any of such Credit
Facility Documents.
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"Documents" means all instruments, documents and agreements, executed
or delivered pursuant to or in connection with the Operative Documents, the
Notes, the Mortgages and/or the Guarantees, as the same may from time to time be
amended, supplemented or otherwise modified.
"Guarantees" means all guarantees now existing or hereafter arising
executed by the Partnership or Funding in favor of any Representative, as the
same may from time to time be amended, supplemented or otherwise modified.
"Mortgages" means any and all mortgages and other security instruments
now existing or hereafter arising granted by the Partnership and/or Funding
which secures, in whole or in part, directly or indirectly, through assignment
or otherwise, the Obligations, including, without limitation, any mortgage
granted by the Partnership (i) to Funding and assigned to a Representative and
(ii) to a Representative to secure any Guarantee.
"Notes" means the Credit Facility Loans, the Mortgage Notes and the
PIK Notes, as the same may from time to time be amended, supplemented or
otherwise modified.
"Obligations" means all indebtedness, obligations and other
liabilities of the Partnership and/or Funding to any one or more Representatives
and any and all other Persons pursuant to or arising from the Indentures, the
Notes, the Mortgages, the Guarantees and the other Documents (including, without
limitation, indebtedness of the Partnership to Funding and assigned to any one
or more Representatives), whether direct or indirect, absolute or contingent,
secured or unsecured, due or to become due, now existing or hereafter arising,
including, without limitation, all interest, fees, charges, costs and expenses
(including, without limitation, reasonable attorneys' fees and disbursements),
for which the Partnership, Funding or any other Person is now or hereafter
becomes liable to pay to the Representative(s) or any other Persons pursuant to
any of such Documents.
"Operative Documents" means the Credit Agreement, the Mortgage Note
Indenture and the PIK Note Indenture.
"Representative" or "Representatives" shall mean each of the
Administrative Agent, the Mortgage Note Trustee and the PIK Note Trustee and
each of their permitted successors and assigns, unless the context requires
reference to one or more but less than all of such Representatives.
"Subordinated Notes" means the Mortgage Notes and the PIK Notes, as
the same may from time to time be amended, supplemented or otherwise modified.
"Subordinated Notes Documents" means all instruments, documents and
agreements, executed or delivered pursuant to or in connection with the
Subordinated Notes Indentures, the Subordinated Notes, the Subordinated Notes
Mortgages and/or the Subordinated Notes Guarantees, as the same may from time to
time be amended, supplemented or otherwise modified.
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"Subordinated Notes Guarantees" means all guarantees now existing or
hereafter arising executed by the Partnership in favor of any Representative, as
the same may from time to time be amended, supplemented or otherwise modified.
"Subordinated Notes Indentures" means the Mortgage Note Indenture and
the PIK Note Indenture.
"Subordinated Notes Mortgages" means any and all mortgages and other
security instruments now existing or hereafter arising granted by the
Partnership and/or Funding which secure, in whole or in part, directly or
indirectly, through assignment or otherwise, the Subordinated Notes Obligations,
including, without limitation, any mortgage granted by the Partnership (i) to
Funding and assigned to a Trustee and (ii) to a Trustee to secure any
Subordinated Notes Guarantee.
"Subordinated Notes Obligations" means all indebtedness, obligations
and other liabilities of the Partnership and/or Funding to any one or more
Representatives and any and all other Persons pursuant to or arising from the
Subordinated Notes Indentures, the Subordinated Notes, the Subordinated Notes
Mortgages, the Subordinated Notes Guarantees and the other Subordinated Notes
Documents (including, without limitation, indebtedness of the Partnership to
Funding and assigned to any one or more Representatives), whether direct or
indirect, absolute or contingent, secured or unsecured, due or to become due,
now existing or hereafter arising, including, without limitation, all interest,
fees, charges, costs and expenses (including, without limitation, reasonable
attorneys' fees and disbursements), for which the Partnership, Funding or any
other Person is now or hereafter becomes liable to pay to the Representative(s)
or any other Persons pursuant to any of such Subordinated Notes Documents.
"Trust Estate" has the meaning set forth in the habendum to the
Granting Clauses of the Mortgages.
1.3. The words "hereof," "herein" and "hereunder" and words of similar
import when used in this Intercreditor Agreement shall refer to this
Intercreditor Agreement as a whole and not to any particular provision of this
Intercreditor Agreement, and section, subsection, schedule and exhibit
references are to this Intercreditor Agreement unless otherwise specified. The
terms defined in this Section and elsewhere include the plural as well as the
singular.
SECTION 2. Lien Priority and Subordination.
2.1. Lien Priority. Each Representative hereby agrees that any and all
security interests, mortgages, assignments of leases, assignments of operating
assets, other assignments, pledges and other liens, charges or encumbrances
(including, without limitation, the Subordinated Notes Mortgages and the other
recorded or filed liens in favor of the Subordinated Notes Trustee identified on
Schedule A to this Intercreditor Agreement) now existing or hereafter created or
arising in its favor in respect of any of the Subordinated Notes Obligations are
expressly subordinate, inferior and junior in priority, operation and effect to
any and all security interests, mortgages, assignments of leases, assignments of
operating assets, other assignments, pledges and other liens, charges or
encumbrances (including, without limitation, the Credit Facility Mortgages) now
existing or here-
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after created or arising in favor of the Administrative Agent in respect of the
Credit Facility Obligations, notwithstanding anything to the contrary contained
in any agreement or filing to which the Partnership, Funding or any
Representative may now or hereafter be a party, and irrespective of the time,
order or method of attachment or perfection of any security interests granted
thereby or the time or order of execution, filing or recording of any mortgages,
financing statements or other security interests, assignments, pledges and other
liens, charges or encumbrances.
Any assets (including, without limitation, any real property(ies)) of
Funding or the Partnership now or from time to time hereafter given, granted,
assigned, mortgaged, pledged or otherwise encumbered to secure the Obligations
(collectively, together with any and all proceeds or products thereof, the
"Shared Collateral") shall be subject to the priority established by this
Section 2.1, provided that (i) the Partnership Note and the Subordinated
Partnership Note (as such terms are defined in the Mortgage Note Indenture and
the PIK Note Indenture, respectively) shall not constitute Shared Collateral and
(ii) nothing in this Intercreditor Agreement is intended to provide rights in
the Shared Collateral as security for any Obligations not otherwise vested,
granted or authorized in or pursuant to the Documents applicable to such
Obligations.
2.2. Proceeds of Shared Collateral. In the event that any one or more
Representatives exercises its respective rights with respect to the Shared
Collateral pursuant to the Documents, each Representative shall apply the
proceeds from any sale or sales or other disposition(s):
(i) first, to the reasonable compensation of agents and
reasonable fees and expenses of counsel;
(ii) second, any surplus then remaining to the payment in full
of the Credit Facility Obligations in accordance with the Credit
Facility Documents;
(iii) third, any surplus then remaining to the payment of the
Subordinated Notes Obligations in accordance with the Documents; and
(iv) fourth, subject to the rights of the holder of any then
existing Lien of which any Representative has actual notice, any
surplus then remaining to the Partnership or as a court of competent
jurisdiction may otherwise direct.
Subject to the rights of the Partnership to apply insurance proceeds or eminent
domain awards to effect Restorations of the Premises, as those terms are defined
in and set forth in the Mortgages, such proceeds and awards are acknowledged to
be Shared Collateral and subject to this Section 2.2.
2.3. Payment. If at any time an Event of Default described in Section
8.01 or 8.03 of the Credit Agreement (each, a "Payment Event of Default") occurs
and is continuing, or a Administrative Agent has declared the principal balance
of the Credit Facility Loans to be due and payable in full pursuant to Section 8
of the Credit Agreement, and shall have given written notice thereof to the
Subordinated Notes Trustee, then no Subordinated Notes Trustee shall make to the
holders of the Subordinated Notes any payments or interest on or the principal
of any of the Subordinated Notes, or effect any Redemption of any of the
Subordinated Notes or make open market pur-
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chases of any of the Subordinated Notes (any such payments of interest and/or
principal and any payments to effect any Redemption or make open market
purchases being hereinafter referred to as a "Blocked Payment").
If, notwithstanding the foregoing, any payment constituting a Blocked
Payment is received by any Subordinated Notes Trustee after the occurrence and
during the continuance of a Payment Event of Default, such payment or
distribution received by any such Subordinated Notes Trustee shall be held in
trust by such Subordinated Notes Trustee for the benefit of the Administrative
Agent until such time as:
(i) such Subordinated Notes Trustee receives written notice
from the Administrative Agent that the Payment Event of Default has
been remedied or cured, in which event such Subordinated Notes Trustee
shall be entitled hereunder to distribute the amount of such Blocked
Payment to the holders of the Subordinated Notes in accordance with
the applicable Operative Document;
(ii) such Subordinated Notes Trustee receives written notices
from the Administrative Agent of the occurrence of an Event of Default
described in Section 8.05 of the Credit Agreement (a "Bankruptcy Event
of Default"), in which event such payment shall be paid to the
Administrative Agent or as a court of competent jurisdiction may
direct in a final and non-appealable order, and to the extent paid to
or for the benefit of the Administrative Agent shall be deemed for
purposes of this Intercreditor Agreement to be proceeds of Shared
Collateral; or
(iii) such Subordinated Notes Trustee receives written notice
from the Administrative Agent that the Administrative Agent has
accelerated the stated maturity of the Credit Facility Obligations
and/or is exercising any other rights or remedies with respect to any
Payment Event of Default, in which event such payment shall be paid
over to the Administrative Agent and shall be deemed for purposes of
this Intercreditor Agreement to be proceeds of Shared Collateral.
For the purposes of this Section 2.3, each Subordinated Notes Trustee shall
conclusively presume that a Payment Event of Default has occurred simultaneously
(i) with the occurrence of a default described in Section 5.1(a), (b) or (c) of
a Subordinated Notes Indenture, whether or not the Administrative Agent or any
Representative has given notice of same to Funding, the Partnership or to any
other Representative; and (ii) upon a default under Section 8.01 of the Credit
Agreement, so long as the Administrative Agent has given notice of the same to
the Subordinated Notes Trustees, whether or not the three (3) day period has
passed.
2.4. Exercise of Remedies. Nothing in this Intercreditor Agreement
shall prevent at any time any Representative from exercising or refraining in
its sole discretion from the exercise of any rights or remedies available to it
under this Intercreditor Agreement or any Documents, provided that all remedies
exercised by any Representative in respect of any Shared Collateral shall be
exercised in accordance with paragraphs 2.1, 2.2 and 2.3 of this Section 2.
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SECTION 3. Intentionally omitted.
SECTION 4. Representations and Warranties. Each Representative hereby
represents and warrants to each of the other Representatives that:
(a) Corporate Existence. The Representative of the Subordinated Notes
is a national banking association duly organized, validly existing and in good
standing under the laws of the United States. The Administrative Agent is a New
York banking corporation duly organized, validly existing and in good standing
under the laws of the State of New York.
(b) Power and Authority. The Representative has full power, authority
and legal right to execute, deliver and perform this Intercreditor Agreement.
The execution and delivery of this Intercreditor Agreement by the Representative
and the performance or observance of each of the obligations of the
Representative hereunder have been duly authorized by all necessary action on
the part of the Representative.
(c) Enforceable Obligations. This Intercreditor Agreement has been
duly executed and delivered by the Representative and constitutes a legal, valid
and binding obligation of the Representative, enforceable against it in
accordance with its terms.
(d) Consents, Approvals, Authorizations, etc. No consent, approval,
order or authorization of or registration, declaration or filing with any
Governmental Authority or any other Person is required in connection with the
valid execution and delivery by the Representative of this Intercreditor
Agreement or the carrying out or performance by the Representative of any of the
transactions required or contemplated hereby.
(e) No Legal Bar. The execution and delivery of this Intercreditor
Agreement by the Representative, and the performance by the Representative of
its obligations hereunder, will not violate any Legal Requirements affecting the
Representative.
(f) No Transfer or Subordination. The Representative has not (i)
sold, assigned or otherwise transferred, in whole or in part, any of the
Obligations, any interest therein or any collateral security or guaranty
therefor to any other Person or (ii) made, given or permitted any currently
effective subordination or postponement in respect of the Obligations or any
Shared Collateral, except as provided herein.
SECTION 5. Negative Covenants of the Subordinated Notes Trustee.
5.1. Until each of the Credit Facility Obligations are indefeasibly
paid in full, the Subordinated Notes Trustee agrees not to, directly or
indirectly:
(a) take, demand or receive from the Partnership or Funding, by
set-off, Redemption, purchase or in any other manner, any payment in respect of
the Obligations, contrary to or in violation of the terms of this Intercreditor
Agreement;
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(b) enter into any amendment or modification of, or supplement to, any
Operative Document or any other Document which would contravene the provisions
of Section 7.12 of the Credit Agreement;
(c) accept any payment or distribution made by or on behalf of the
Partnership or Funding that the Partnership or Funding is prohibited from making
under any of the Documents; or
(d) accelerate the indebtedness under its Operative Document without giving
the Administrative Agent at least two prior business days notice of such
acceleration.
SECTION 6. Waivers, etc.
6.1. Each of the Representatives hereto consents to and agrees with the
other Representatives that, without the necessity of any reservation of rights
against any other party and without notice to or further assent by any other
party, subject to the provisions of Section 2.1, 2.2 and 5.1 hereof, (a) any
demand for payment of any Obligation may be rescinded in whole or in part, and
any Obligation may be continued, and the Obligations, or the liability of
Funding, the Partnership or any other Person upon or for any part thereof, or
any collateral security or guaranty therefor or right of offset with respect
thereto, or any obligation or liability of Funding, the Partnership or any other
Person thereunder or with respect thereto may, from time to time, in whole or in
part, be renewed, extended, modified, accelerated, compromised, waived,
surrendered or released (it being acknowledged that the foregoing is subject, in
the case of any Shared Collateral, to the provisions of Section 2 hereof), and
(b) the Documents, and any other documents, instruments or agreements evidencing
or governing the terms of the Obligations or any collateral security documents
or guaranties or documents in connection therewith, may be amended, modified,
supplemented or terminated, in whole or in part, as the parties thereto may deem
advisable from time to time, except as otherwise expressly set forth therein,
and any collateral security at any time held by any Representative from the
payment of any Obligations, respectively, may be sold, exchanged, waived,
surrendered or released, in each case all without notice to or further assent by
any other party hereto, each of which will remain bound under this Intercreditor
Agreement, and all without impairing, releasing or affecting the lien priority
or other provisions herein, notwithstanding any such renewal, extension,
modification, acceleration, compromise, amendment, supplement, termination,
sale, exchange, waiver, surrender or release, subject in each case to the
provisions of this Intercreditor Agreement. The Representatives hereby waive any
and all notice of the creation, renewal, extension or accrual of any of the
Obligations and notice of or proof of reliance by the Representatives upon this
Intercreditor Agreement and the Credit Facility Obligations shall conclusively
be deemed to have been created, contracted or incurred in reliance upon this
Intercreditor Agreement.
6.2. Each Representative hereby acknowledges and confirms to each other
Representative Trustee that:
(a) No Representative has made any representations or warranties as to any
matter which may affect in any way related to the financial condition,
relationships or transactions of Funding, the Partnership or any other Person,
including, without limitation, the business, assets, li-
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abilities, type or value of any security therefor, financial condition,
management or control of Funding, the Partnership or any other Person; and
(b) Except as expressly provided herein, no Representative is obligated to
notify any other Representative or any other Person of any change in the
business, assets, liabilities, type or value of any security therefor, financial
condition, management or control of Funding, the Partnership or any other
Person; and
(c) The failure by a Representative to obtain, perfect or realize upon any
security for any of the Obligations or the indebtedness, obligations or
liabilities of any other Person, shall not release or otherwise impair any of
the obligations of the other Representatives hereunder.
SECTION 7. Term and Termination.
This Intercreditor Agreement shall constitute from and after the date
hereof a continuing agreement and shall remain in effect until the Obligations
are indefeasibly paid and performed in full without contravention of Section 2.2
or Section 5.1 hereof and the Mortgages and any other document evidencing any
mortgage, security interest or any other lien or encumbrance in favor of any
Representative which are a matter of public record. This Intercreditor
Agreement, including without limitation, the lien priority and other provisions
hereof shall remain in effect, notwithstanding any proceeding instituted by or
against the Partnership and/or Funding seeking to adjudicate it bankrupt or
insolvent, or seeking liquidation, winding up, reorganization, arrangement,
adjustment, protection, relief or composition of the Partnership and/or Funding
or its respective debts under any law related to bankruptcy, insolvency or
reorganization or relief or promotion of debts, or seeking the entry of an order
for relief or the appointment of a receiver, trustee, custodian or other similar
official for the Partnership and/or Funding or any substantial part of its
property or assets.
SECTION 8. Remedies and Cooperation.
Each Representative hereby acknowledges that the other Representatives
shall have no adequate remedy at law if a Representative violates any of the
terms or provisions hereof. In such event, each other Representative shall have
the right, in addition to any and all other rights and remedies as may be
available under applicable law, to obtain in any court of competent jurisdiction
injunctive relief to restrain any such Representative from any breach or
threatened breach of this Intercreditor Agreement or otherwise to specifically
enforce any of the terms or provisions hereof.
SECTION 9. Concerning the Representatives.
9.1. Each Representative (which, for the purposes of this Intercreditor
Agreement includes each separate trustee or administrative agent appointed with
such authority pursuant to each Operative Document) undertakes to perform such
duties and only such duties as are specifically set forth in this Intercreditor
Agreement as assigned to such Representative. No implied covenants or
obligations shall be read into this Intercreditor Agreement against any
Representative.
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9.2. In the absence of bad faith on its part, each Representative may
conclusively rely, as to the truth of the statements and the correctness of the
opinions expressed therein, upon certificates or opinions furnished to such
Representative and conforming to the requirements of this Intercreditor
Agreement; but in the case of any such certificates or opinions which by any
provision hereof are specifically required to be furnished to any
Representative, such Representative shall be under a duty to examine the same to
determine whether or not they conform to the requirements of this Intercreditor
Agreement.
9.3. Each Representative may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
coupon or other paper or document believed by it to be genuine and to have been
signed or presented by the proper party or parties.
9.4. Whenever in the administration of this Intercreditor Agreement any
Representative shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, such Representative
(unless other evidence be herein specifically prescribed) may, in the absence of
bad faith on its part, rely upon an Officers' Certificate.
9.5. Each Representative may consult with counsel, and the written advice
of such counsel or any opinion of counsel shall be full and complete,
authorization and protection in respect of any action taken, suffered or omitted
by such Representative hereunder in good faith and in reliance thereon.
9.6. No Representative shall be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture or
other paper or document.
9.7. No provision of this Intercreditor Agreement shall be construed to
relieve any Representative from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except that no
Representative shall be liable for any error of judgment made in good faith by a
responsible officer, unless it shall be proved that such Representative was
negligent in ascertaining the pertinent facts.
9.8. No provision of this Intercreditor Agreement shall require any
Representative to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in the exercise
of any of its rights or powers, if it shall have reasonable grounds for
believing that, under the terms of the applicable Operative Document or
otherwise, repayment of such funds or adequate indemnity against such risk or
liability is not reasonable assured to it.
9.9. Each Representative may execute any of its rights or powers hereunder
or perform any of its duties hereunder either directly or by or through agents
or attorneys, and such Representative shall not be responsible for any
misconduct or negligence on the part of any agent or attorney appointed with due
care by it hereunder.
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SECTION 10. Miscellaneous.
10.1. No failure to exercise, and no delay in exercising, on the part of
any party hereto from time to time of any right, power or privilege under this
Intercreditor Agreement or any documents securing and/or evidencing the
Obligations shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, power or privilege under this Intercteditor Agreement or
any other such document preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. The rights and remedies
provided in this Intercreditor Agreement and in any agreement relating to any of
the Obligations and all other agreements, instruments and documents referred to
in any of the foregoing are cumulative and shall not be exclusive of any rights
or remedies provided by law.
10.2. Each party hereto agrees to execute and deliver such further
documents and to do such other acts and things as any other party may reasonably
request in order fully to effect the purposes of this Intercreditor Agreement.
10.3. Any request, demand, authorization, direction, notice (including,
without limitation, a notice of default), consent, waiver or other document
provided or permitted by this Intercreditor Agreement to be made upon, given or
furnished to, or filed with any Representative, Funding or the Partnership shall
be deemed given when either (i) delivered by hand or by Federal Express or other
similar overnight courier or (ii) three Business Days after sending by
registered or certified mail, postage prepaid; in either case addressed as
follows:
To the Representatives (one such notice shall constitute sufficient notice
to each of the Subordinated Notes Trustees hereunder, unless the same Person is
not the Representative under each Operative Document)):
Deutsche Bank Trust Company Americas
31 West 52/nd/ Street
New York, New York 10019
Attention: George Reynolds
with a copy sent by & same method to:
Cahill Gordon & Reindel
80 Pine Street
New York, New York 10005
Attention: John A. Tripodoro
U.S. Bank National Association
U.S. Bank Trust Center
180 East Fifth Street
St. Paul, Minnesota 55101
Attention: Corporate Trust Administration
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To the Partnership:
Trump's Castle Associates, L.P.
Trump Marina Hotel Casino
Brigantine Boulevard at Huron Avenue
Atlantic City, New Jersey 08401
Attention: Chief Executive Officer
To Funding;
Trump's Castle Funding, Inc.
Trump Marina Hotel Casino
Brigantine Boulevard at Huron Avenue
Atlantic City, New Jersey 08401
Attention: Treasurer
with, in each case, a copy sent by & same method to:
Trump Hotels & Casino Resorts Holdings, L.P.
1000 Boardwalk
Atlantic City, New Jersey 08401
Attention: Robert M. Pickus
Graham, Curtin & Sheridan
4 Headquarters Plaza
Morristown, New Jersey 07962
Attention: Kenneth W. Vest
By notice given as provided above, each Representative, Funding or the
Partnership may designate additional or substitute addresses for such notices,
which, notwithstanding the provisions of clause (ii) of this Section 9.3, shall
be deemed given when received.
If any Representative commences foreclosure or other proceedings for sale
of any Shared Collateral then the foreclosing party agrees to give the other
copies of notices at the same time and by substantially the same method the
foreclosing party provides any such notice to the Partnership or Funding.
10.4. No amendment or waiver of any provision of this Intercreditor
Agreement nor consent to any departure by any party herefrom, shall in any event
be effective unless the same shall be in writing and signed by such party, and
then such waiver or consent shall be effective only in the specific instance and
for the specific purpose for which given.
10.5. This Intercreditor Agreement may be executed by the parties hereto in
any number of separate counterparts all of which taken together shall constitute
one and the same instrument.
<PAGE>
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10.6. This Intercreditor Agreement, and the rights and obligations of the
parties hereunder, shall be governed by, and construed and interpreted in
accordance with, the laws of the State of New Jersey (without giving effect to
principles of choice of law). Each Representative hereby submits itself for the
sole purpose of this Intercreditor Agreement and any controversy arising
hereunder to the nonexclusive jurisdiction of the federal and state courts
located in the State of New Jersey, and waives any objection (on the grounds of
lack of jurisdiction or forum non conveniens, or otherwise) to jurisdiction over
it by any federal or state court in the State of New Jersey.
10.7. This Intercreditor Agreement is solely for the benefit of the parties
hereto and their respective successors and assigns, and no other Person shall
have any right, benefits, priority or interest under, or because of the
existence of, this Intercreditor Agreement.
10.8. The agreements of the Representatives hereunder are made solely in
its capacity as Administrative Agent or Trustee, as the case may be, under each
of the Operative Documents, and shall bind, and inure to the benefit of, the
Lenders or the holders of the Notes, as the case may be.
10.9. Any successor Representative under any Operative Document shall be
deemed to be and shall be bound by this Intercreditor Agreement.
10.10. This Intercreditor Agreement may be executed in counterparts, each
of which together shall constitute one and the same document.
10.11. The Recitals, the definitions and the schedules hereto constitute an
integral part of this Intercreditor Agreement.
<PAGE>
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IN WITNESS WHEREOF, the parties hereto have caused this Intercreditor
Agreement to be duly executed and delivered by their proper and duly authorized
officers, as of the day and year first above written.
<TABLE>
<S> <C>
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Administrative Agent under the Credit Agreement
Witness: /s/ Nicole Servidio By: /s/ William W. Archer
------------------- ---------------------
Name: William W. Archer
Title: Managing Director
U.S. BANK NATIONAL ASSOCIATION
(f/k/a First Bank National Association),
as Trustee under the Mortgage Note Indenture
Witness: /s/ Judith Zuzek By: /s/ Richard Prokosch
---------------- --------------------
Name: Richard Prokosch
Title: Vice President
U.S. BANK NATIONAL ASSOCIATION
(f/k/a First Bank National Association),
as Trustee under the PIK Note Indenture
Witness: /s/ Judith Zuzek By: /s/ Richard Prokosch
---------------- --------------------
Name: Richard Prokosch
Title: Vice President
</TABLE>
<PAGE>
STATE OF NEW YORK )
) ss.
COUNTY OF NEW YORK )
BE IT REMEMBERED, that on this 7th day of June, 2002, before me the
subscriber, a Notary Public of the State of New York, personally appeared
William W. Archer, a Managing Director of DEUTSCHE BANK TRUST COMPANY AMERICAS,
a New York banking corporation, the Administrative Agent under a certain Credit
Agreement, who, I am satisfied, is the person who executed the within
instrument, and he acknowledged that he signed and delivered the same as such
officer on behalf of such association and that the within instrument is the
voluntary act and deed of said association made by virtue of authority of its
board of directors.
/s/ Nicole Servidio
-----------------------------------------------
Notary Public of the State of New York
[Seal]
<PAGE>
STATE OF MINNESOTA )
) ss.
COUNTY OF RAMSEY )
BE IT REMEMBERED, that on this 5th day of June, 2002, before me the
subscriber, a Notary Public of the State of Minnesota, personally appeared
Richard Prokosch, a Vice President of U.S. BANK NATIONAL ASSOCIATION (f/k/a
First Bank National Association), a national banking association, the Trustee
under a certain Mortgage Note Indenture, who, I am satisfied, is the person who
executed the within instrument, and he acknowledged that he signed and delivered
the same as such officer on behalf of such association and that the within
instrument is the voluntary act and deed of said association made by virtue of
authority of its board of directors.
/s/ Mary R. McCarthy
--------------------------------------------
Notary Public of the State of Minnesota
[Seal]
<PAGE>
STATE OF MINNESOTA )
) ss.
COUNTY OF RAMSEY )
BE IT REMEMBERED, that on this 5th day of June, 2002, before me the
subscriber, a Notary Public of the State of Minnesota, personally appeared
Richard Prokosch, a Vice President of U.S. BANK NATIONAL ASSOCIATION (f/k/a
First Bank National Association), a national banking association, the Trustee
under a certain PIK Note Indenture, who, I am satisfied, is the person who
executed the within instrument, and he acknowledged that he signed and delivered
the same as such officer on behalf of such association and that the within
instrument is the voluntary act and deed of said association made by virtue of
authority of its board of directors.
/s/ Mary R. McCarthy
-----------------------------------------------
Notary Public of the State of New Jersey
[Seal]
<PAGE>
CONSENT AND AGREEMENT
The undersigned hereby acknowledge notice of, and consent to the terms
and provisions of, the foregoing Intercreditor Agreement. The undersigned waive
notice of acceptance of this Intercreditor Agreement by any Representative and
hereby agree that:
(a) no further act or deed shall be required of the undersigned in
order to accomplish the purposes and carry out the intent of the Intercreditor
Agreement, and each of the undersigned agree not to take any action contrary to
or inconsistent with any of the terms provisions thereof;
(b) from time to time, at their own expense, the undersigned will
promptly execute and deliver all further instruments and documents, and take all
further action that may be reasonably necessary in order to accomplish the
purposes and carry out the intent of the Intercreditor Agreement; and
(c) upon the occurrence and continuation of a Payment Event of
Default, the undersigned shall not make any payment to any Subordinated Notes
Trustee which would constitute a Blocked Payment, but instead shall pay directly
to the Administrative Agent, for application on account of the Credit Facility
Obligations until the same are indefeasibly paid in full, any such payment
which, but for the provisions of the Intercreditor Agreement the undersigned
would have made to any Subordinated Notes Trustee.
The undersigned further agree that from and after the indefeasible
payment in full of the Credit Facility Obligations, and so long as the
Administrative Agent shall not incur any liability arising out of the provisions
of this paragraph, the holders of the Subordinated Notes Obligations shall, to
the extent of any Blocked Payment which was paid to the Administrative Agent in
accordance with the Intercreditor Agreement, be subrogated to the then existing
or thereafter arising rights of the holders of the Credit Facility Obligations
to receive payments or distributions of assets of the Partnership and/or Funding
made on the Credit Facility Obligations until all liabilities in respect of the
Subordinated Notes Obligations shall be paid in full; and, for the purpose of
such subrogation, no payments or distributions to the holders of the Credit
Facility Obligations of any cash, property or securities to which the holders of
the Subordinated Notes Obligations would be entitled except for the provisions
of Section 2.2 of the Intercreditor Agreement shall, and no payment over
pursuant to the provisions of said Section 2.2 to the holders of Credit Facility
Obligations by any Representative shall, as between the Partnership or Funding,
their creditors (other than the holders of the Credit Facility Obligations) and
the holders of the Obligations, be deemed to be a payment by the Partnership or
Funding to or on account of Credit Facility Obligations, it being understood
that the provisions of said Section 2.2 are and are intended solely for the
purposes of defining the relative rights of the holders of the Subordinated
Notes Obligations, on the one hand, and the holders of the Credit Facility
Obligations, on the other hand. None of such provisions shall impair, as between
the Partnership or Funding and any holder of Subordinated Notes Obligations, the
obligations of the Partnership and/or Funding, which are unconditional and
absolute, to pay to such holders of Subordinated Notes Obligations the full
amount thereof, nor shall any such provisions prevent any holder of Subordinated
Notes Obligations from exercising all rights, powers and remedies otherwise
permitted by applicable law or under the terms of the Subordinated Notes
Documents upon a default thereunder, subject to the rights
<PAGE>
-20-
under Section 2.2 of the Intercreditor Agreement of holders of the Credit
Facility Obligations. The Partnership and Funding hereby agree that, during any
period in which they are not permitted to make any payment to any Representative
by virtue of the provisions of the Intercreditor Agreement, any applicable
statute of limitations shall be tolled.
<PAGE>
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This consent shall become effective on the date hereinbelow set forth,
and shall be binding upon the undersigned and their respective successors and
assigns. Capitalized terms used in this consent and not defined herein shall
have the meaning for such terms set forth in the Intercreditor Agreement. The
miscellaneous provisions of the Intercreditor Agreement are applicable to this
consent.
TRUMP'S CASTLE ASSOCIATES, L.P.
By: Trump's Castle Hotel & Casino, Inc.,
its general partner
Witness: /s/ Sandra L. Gonzalez By: /s/ Francis X. McCarthy, Jr.
---------------------- ----------------------------
Name: Francis X. McCarthy, Jr.
Title: Executive Vice President
TRUMP'S CASTLE FUNDING, INC.
Witness: /s/ Sandra L. Gonzalez By: /s/ Francis X. McCarthy, Jr.
---------------------- ----------------------------
Name: Francis X. McCarthy, Jr.
Title: Executive Vice President
<PAGE>
STATE OF NEW JERSEY )
) ss.
COUNTY OF ATLANTIC )
BE IT REMEMBERED, that on this 6th day of June, 2002, before me the
subscriber, a Notary Public of the State of New Jersey, personally appeared
Francis X. McCarthy, Jr., the Executive Vice President of TRUMP'S CASTLE HOTEL &
CASINO, INC., the general partner of TRUMP'S CASTLE ASSOCIATES, L.P., who I am
satisfied is the person who executed the within instrument, and he acknowledged
that he signed and delivered the same as such officer on behalf of such entity
and that the within instrument is the voluntary act and deed of said company
made by virtue of authority of its board of directors.
/s/ Sherry A. Field
------------------------------------------------
Notary Public of the State of New Jersey
[Seal]
<PAGE>
STATE OF NEW JERSEY )
) ss.
COUNTY OF ATLANTIC )
BE IT REMEMBERED, that on this 6th day of June, 2002, before me the
subscriber, a Notary Public of the State of New Jersey, personally appeared
Francis X. McCarthy, Jr., the Executive Vice President of TRUMP'S CASTLE
FUNDING, INC., who I am satisfied is the person who executed the within
instrument, and he acknowledged that he signed and delivered the same as such
officer on behalf of such entity and that the within instrument is the voluntary
act and deed of said company made by virtue of authority of its board of
directors.
/s/ Sherry A. Field
-----------------------------------------------
Notary Public of the State of New Jersey
[Seal]
<PAGE>
SCHEDULE A
SUBORDINATED LIENS AND ENCUMBRANCES
1. Indenture of Mortgage and Security Agreement from Trump's Castle
Associates, a New Jersey general partnership to Trump's Castle Funding,
Inc., a New Jersey corporation, dated as of December 28, 1993, and recorded
December 29, 1993 in mortgage book 5238, page 1 ($242,141,304.00 Note
Mortgage).
Assignment Agreement from Trump's Castle Funding, Inc., a New Jersey
corporation, to First Bank National Association as Trustee, dated as of
December 28, 1993, and recorded December 29, 1993 in assignment book 651,
page 160.
Financing Statement from Trump's Castle Associates (Debtor) to Trump's
Castle Funding, Inc., assigned to First Bank National Association, filed
December 29. 1993 as #0014654.
Financing Statement from Trump's Castle Associates, L.P. (Debtor) to
Trump's Castle Funding, Inc., assigned to First Bank National Association,
filed January 31, 1997 as #0022052.
2. Indenture of Mortgage and Security Agreement from Trump's Castle
Associates, a New Jersey general partnership to First Bank National
Association as Trustee, dated as of December 28, 1993, and recorded
December 29, 1993 in mortgage book 5239, page 1 ($242,141,304.00 Guarantee
Mortgage).
Financing Statement from Trump's Castle Associates (Debtor) to First Bank
National Association as Trustee, filed December 29, 1993 as #0014657.
Financing Statement from Trump's Castle Associates, L.P. (Debtor) to First
Bank National Association, filed January 31, 1997 as #0022051.