EXHIBIT 4.8(d)
AFTER RECORDING THIS
INSTRUMENT SHOULD BE
RETURNED TO:
James L. Morgan, Esq.
Henderson & Morgan, LLC
164 Hubbard Way, Suite B
Reno, NV 89502
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SENIOR MORTGAGE WITH ABSOLUTE ASSIGNMENT
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OF LEASES AND RENTS
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NOTICE: THIS MORTGAGE SECURES CREDIT IN THE INITIAL
MAXIMUM PRINCIPAL AMOUNT OF ONE HUNDRED MILLION DOLLARS
($100,000,000.00), TOGETHER WITH: (i) INTEREST ON THE
OUTSTANDING PORTION OF SAID PRINCIPAL AMOUNT; and (ii)
OTHER AMOUNTS DESCRIBED HEREIN. THE OBLIGATIONS SECURED
HEREBY INCLUDE REVOLVING CREDIT OBLIGATIONS WHICH
PERMIT BORROWING, REPAYMENT AND REBORROWING, ALL
SUBJECT TO THE TERMS AND CONDITIONS OF THE CREDIT
AGREEMENT AND THE NOTES THAT ARE REFERRED TO HEREIN.
INTEREST ON OBLIGATIONS SECURED HEREBY ACCRUES AT RATES
WHICH MAY FLUCTUATE FROM TIME TO TIME.
THE PARTIES TO THIS SENIOR MORTGAGE WITH ABSOLUTE ASSIGNMENT OF LEASES
AND RENTS, made as of June 17, 1998 (this "Mortgage"), are EMPRESS CASINO
HAMMOND CORPORATION, an Indiana corporation ("Mortgagor"), having its chief
executive office at 825 Empress Place, Hammond, Indiana 46320, and WELLS FARGO
BANK, NATIONAL ASSOCIATION, as Agent Bank on behalf of the Lenders, the
Swingline Lender and the L/C Issuer, all of which are defined and described in
the Credit Agreement referred to below ("Mortgagee"), having an office at One
East First Street, Reno, Nevada 89501.
ARTICLE 1. GRANT
1.1 GRANT. Upon the terms and conditions in this Mortgage, Mortgagor
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irrevocably grants, bargains, sells, conveys, assigns, MORTGAGES and WARRANTS to
Mortgagee, its successors and assigns, all of Mortgagor's right, title and
interest in all of the real property located in the City of Hammond, County of
Lake, State of Indiana described on Exhibit A attached hereto and made a part
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hereof (the "Land"), together with and including, without limitation:
(a) all right, title and interest of Mortgagor whether now owned
or hereafter acquired, in or to any real property lying within the
right of way of any street, open or proposed, which adjoins any of
said Land and any and all sidewalks, bridges, elevated walkways,
tunnels, alleys, strips and gores of real property adjacent to,
connecting or used in connection with any of said Land (collectively,
the "Adjacent Property");
(b) all buildings, structures and all other improvements and
fixtures that are, or that may be hereafter erected or placed on, or
in, the Land and all right, title and interest of Mortgagor which is
now owned or hereafter acquired, in or to, all buildings, structures
and all other improvements and fixtures that are, or that may be
hereafter, erected or placed on, or in, any of the Adjacent Property
(collectively, the "Improvements");
(c) all water rights and conditional water rights that are now,
or may hereafter be, appurtenant to, used in connection with or
intended for use in connection with the Land, the Adjacent Property
and/or the Improvements including, without limitation: (i) ditch,
well, pipeline, spring and reservoir rights, whether or not
adjudicated or evidenced by any well or other permit; (ii) all rights
with respect to groundwater underlying the Land or the Adjacent
Property; (iii) any permit to construct any water well, water from
which is intended to be used in connection with the Land, the Adjacent
Property; and (iv) all of Mortgagor's right, title and interest under
any decreed or pending plan of augmentation or water exchange plan
(collectively, the "Water Rights", and together with the Land, the
Adjacent Property and the Improvements, the "Real Estate");
(d) all right, title and interest of Mortgagor in, and under, all
leases, subleases, licenses, concessions, franchises and other use or
occupancy agreements now or
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hereafter relating to any of the Real Estate and all renewals,
extensions, amendments, restatements and other modifications thereof
(collectively, the "Leases") subject, however, to the absolute
assignment given to Mortgagee in Article 3 hereof entitled Assignment
of Leases and Rents, and to which Article this grant to Mortgagee is
subject and subordinate;
(e) all present and future rents, issues, products, earnings,
revenues, payments, profits, royalties and other proceeds and income
of the Real Estate, and of any activities conducted thereon or in
connection therewith, regardless of whether such proceeds or income
accrue by virtue of the Leases, or otherwise (collectively, the
"Rents") subject, however, to the absolute assignment given to
Mortgagee in Article 3 hereof entitled Assignment of Leases and Rents,
and to which Article this grant to Mortgagor is subject and
subordinate; and
(f) all and singular the tenements, easements, hereditaments and
appurtenances now, or hereafter, belonging to or in any wise
appertaining to the Real Estate and/or the Rents and the reversion and
reversions, remainder and remainders thereof and all the estate,
right, title, interest or other claim which Mortgagor now has or
hereafter may acquire of, in and to the Real Estate, the Leases, the
Rents and/or any part thereof, with the appurtenances thereto
(collectively, the "Other Interests").
The Real Estate, the Leases, the Rents and the Other Interests are hereinafter
collectively referred to as the "Property".
TO HAVE AND TO HOLD the Property, properties, rights and
privileges hereby granted or assigned, or intended so to be, unto Mortgagee, and
its successors and assigns, forever for the uses and purposes herein set forth
subject only to the ECHC Permitted Encumbrances (as defined in the Credit
Agreement).
1.2 EXCLUSIONS FROM GRANT. The terms of Section 1.1 above,
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notwithstanding, it is specifically provided that no interest in any of the
following is granted to Mortgagee hereunder:
(a) That certain Hammond Riverboat Gaming Project Development
Agreement (the "Development Agreement") which is executed under date of June 21,
1996 by and among the City of Hammond, Indiana, the City of Hammond Department
of Redevelopment and Mortgagor;
(b) That certain License Agreement which is executed under date
of June 21, 1996 by and between the Hammond Port Authority and Mortgagor, record
notice of which is granted pursuant to that certain Memorandum of License
Agreement that is recorded in the Official Records of Lake County, Indiana on
March 5, 1997 as Instrument No. 97014037;
(c) That certain Lease (the "Redevelopment Lease") which is
executed under date of June 19, 1996 by and between the City of Hammond
Department of Redevelopment and Mortgagor, record notice of which is granted
pursuant to that certain Memorandum of Lease that is recorded in the Official
Records of Lake County, Indiana on February 25, 1997 as Instrument No. 97011160;
and
(d) That certain License Agreement which is executed under date
of June 19, 1996 by and among the Department of Water Works of the City of
Hammond and Mortgagor, record notice of which is granted pursuant to that
certain Memorandum of License Agreement that is recorded in the Official Records
of Lake County, Indiana on March 5, 1997 as Instrument No. 97014038.
(e) All of Assignor's right, title and interest in and to the
Gaming License issued to Assignor by the Indiana Gaming Commission.
(f) Any Deposit Accounts established by Assignor pursuant to the
Agreement respecting the S/S Milwaukee Clipper by and between Lake Michigan
Charters, Ltd. and the Hammond Port Authority dated March 20, 1996, and/or the
Memorandum of Understanding and Consent by and between the Hammond Port
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Authority and H. Joseph Vaughn, President, DMS of Hammond, Inc. dated September
20, 1995.
(g) Any interest of Assignor in sewer capacity reservation set
forth in Quitclaim Deed, Bill of Sale and Sewer Capacity Reservation Agreement
between Assignor, Hammond Bridge and Roadworks, LLC and the Sanitary District of
the City of Hammond, Indiana, recorded February 21, 1997, in the office of the
Recorder of Lake County, Indiana as Instrument No. 97010865;
(h) Temporary Permit to Enter Upon Property dated March 8, 1996,
granted by the Elgin, Joliet and Eastern Railway Company ("EJE") to Hammond
Bridge and Roadworks, LLC, as assigned to assignor and as amended, and any
agreement entered into or to be entered into with EJE for the acquisition of
property to fulfill Assignor's commitments under the Development Agreement.
(i) Any portion of the parking garage situated on property
subject to the Redevelopment Lease, which portion is owned by Mortgagor and
which portion Mortgagor is required to convey to the City of Hammond, and/or any
of its political subdivisions.
(j) Any investment or deposits made by Assignor pursuant to an
agreement to be entered into by and between the City of Hammond and Assignor
regarding guidelines for the investment by Assignor of Three Million Five
Hundred Thousand Dollars (3,500,000.00) of the residential housing investment in
fulfillment of Assignor's obligations under Section 5.07 of the Development
Agreement.
(k) Any interest of Assignor in Hammond Residential, LLC or in
any loans made by or security interests granted to Hammond Residential, LLC in
connection with a Loan Agreement to be entered into between Hammond Residential,
LLC in connection with a Loan Agreement to be entered into between Hammond
Residential, LLC and Hammond Enterprise Development Corporation for a One
Million Five Hundred Thousand Dollar ($1,500,000.00) loan pursuant to Assignor's
obligations under Section 5.07 of the Development Agreement.
1.3 ADDRESS. The address of the Property is: Indianapolis
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Boulevard, east of Fifth Avenue and northwest of 112th Street, Hammond, Indiana.
However, neither the failure to designate an address nor any inaccuracy in the
address designated shall affect the validity or priority of the lien of this
Mortgage on the Property.
1.4 NON-AGRICULTURAL USE. Mortgagor represents and warrants to
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Mortgagee that the Property is not used principally for agricultural or farming
purposes.
1.5 ACKNOWLEDGEMENT BY PARTIES. The parties intend for this Mortgage
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to create a lien on the Property, and, as provided in Article 3 hereof entitled
Assignment of Leases and Rents, an absolute assignment of the Leases and Rents,
all in favor of Mortgagee. To the extent any of said Property, Leases and Rents
are not encumbered by a perfected lien created above, and are not absolutely
assigned by the assignment set forth in Article 3 below, it is the intention of
the parties that such Property, Leases and/or Rents shall constitute "proceeds,
product, offspring, rents or profits" (as defined in and for the purposes of
Section 552(b) of the United States Bankruptcy Code, as such section may be
modified or supplemented) of the Property and/or "fees, charges, accounts, or
other payments for the use or occupancy of rooms and other public facilities in
. . . lodging properties," as applicable (as such terms are defined in and for
the purpose of Section 552(b) of the United States Bankruptcy Code, as such
Section may be modified or supplemented).
ARTICLE 2. OBLIGATIONS SECURED
2.1 OBLIGATIONS SECURED. Mortgagor makes this Mortgage for the
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purpose of securing the following obligations (collectively, the "Secured
Obligations"):
(a) Payment when due, whether at stated maturity (which is June
18, 2003), by required prepayment, declaration, acceleration, demand or
otherwise (including payment of amounts that would become due but for the
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operation of the automatic stay under Section 362(a) of the Bankruptcy Code, 11
U.S.C. (S) 362(a)), of: (i) the principal sum which is, at any time, advanced
and unpaid under the Credit Facility (as defined in the Credit Agreement), not
to exceed One Hundred Million Dollars ($100,000,000.00) at any one time, all on
a reducing revolving line of credit basis; (ii) interest and other charges
accrued on said principal sum, or accrued on interest and other charges then
outstanding under the Credit Facility (all including, without limitation,
interest and other charges that would accrue on such obligations, but for the
filing of a petition in bankruptcy with respect to Empress Entertainment, Inc.,
a Delaware corporation, Empress Casino Joliet Corporation, an Illinois
corporation, Mortgagor (collectively, "Borrowers"), or any of them; and (iii)
any other obligations of Borrowers, or any of them, under the RLC Note referred
to below; all according to the terms of a Revolving Credit Promissory Note
executed concurrently, or substantially concurrent, herewith which is made by
Borrowers and is payable to the order of Mortgagee according to the tenor and
effect of said Revolving Credit Promissory Note, and all renewals, extensions,
amendments, restatements, replacements, substitutions and other modifications
thereof (hereinafter collectively referred to as the "RLC Note").
(b) Payment when due, whether at stated maturity, by required
prepayment, declaration, acceleration, demand or otherwise (including payment of
amounts that would become due but for the operation of the automatic stay under
Section 362(a) of the Bankruptcy Code, 11 U.S.C. (S) 362(a)), of: (i) the
principal sum which is, at any time, advanced and unpaid under the Swingline
Facility (as defined in the Credit Agreement), not to exceed Five Million
Dollars ($5,000,000.00) at any one time, all on a revolving line of credit
basis; (ii) interest and other charges accrued on said principal sum, or accrued
on interest and other charges then outstanding under the Swingline Facility (all
including, without limitation, interest and other charges that would accrue on
such obligations, but for the filing of a petition in bankruptcy with respect to
Borrowers, or any of them); and (iii) any other obligations of Borrowers, or any
of them, under the S/L Note referred to below; all according to the terms of a
Swingline Note executed concurrently, or substantially concurrent, herewith
which is made by Borrowers and is payable to the order of Mortgagee according to
the tenor and effect of said Swingline Note, and all renewals, extensions,
amendments, restatements, replacements, substitutions and other modifications
thereof (hereinafter referred to as the "S/L Note", and together with the RLC
Note, collectively referred to as the "Notes").
(c) Payment and performance of every obligation, warranty,
representation, covenant, promise and agreement of Borrowers, or any of them,
contained in that certain Certificate and Indemnification Regarding Hazardous
Substances, together with all extensions, renewals, amendments, restatements and
other modifications thereof, which is executed by Empress Entertainment, Inc.
and Mortgagor concurrently, or substantially concurrent, herewith and which is
to be executed by Empress Casino Joliet Corporation on or before July 31, 1998.
(d) Payment and performance of every obligation, covenant,
promise and agreement of Mortgagor herein contained or incorporated herein by
reference, including any sums paid or advanced by Mortgagee or any of the Banks
(which are defined below) pursuant to the terms hereof.
(e) Payment of the expenses and costs incurred or paid by
Mortgagee or any of the Banks in the preservation and enforcement of the rights
and remedies of Mortgagee and the duties and liabilities of Mortgagor hereunder,
including, but not by way of limitation, reasonable attorney's fees, court
costs, witness fees, expert witness fees, collection costs, and reasonable costs
and expenses paid by Mortgagee or any of the Banks in performing for Mortgagor's
account any obligation of said Mortgagor.
(f) Payment of any sums which may hereafter be owing by
Borrowers, or any of them, to any of the Banks or any of their affiliates, under
the terms of any interest rate swap agreement, interest rate cap agreement,
basis swap agreement, forward rate agreement, interest collar agreement or
interest floor agreement to which Borrowers, or any of them, may be a party, or
under any other agreement or arrangement to which Borrowers, or any of them, may
be a party, which in each case is designed to protect
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Borrowers, or any of them, against fluctuations in interest rates or currency
exchange rates with respect to any indebtedness secured by the Mortgage.
(g) Payment of additional sums and interest thereon which may
hereafter be loaned to Borrowers, or any of them, pursuant to the Credit
Agreement when evidenced by a promissory note or notes which recite that this
Mortgage is security therefor.
(h) Performance and payment of every obligation, warranty,
representation, covenant, agreement and promise of Borrowers, or any of them,
contained in that certain Credit Agreement (the "Original Credit Agreement")
executed concurrently, or substantially concurrent, herewith by Borrowers, the
Lenders therein named (each, together with their respective successors and
assigns, individually referred to herein as a "Lender" and collectively referred
to herein as the "Lenders"), the Swingline Lender therein named (together with
its successors and assigns, referred to herein as the "Swingline Lender"), the
L/C Issuer therein named (together with its successors and assigns, referred to
herein as the "L/C Issuer"), and Wells Fargo Bank, National Association, as
administrative and collateral agent for the Lenders, the Swingline Lender and
the L/C Issuer (referred to herein, in such capacity, together with its
successors and assigns, as the "Agent Bank" and together with the Lenders, the
Swingline Lender and the L/C Issuer, collectively referred to herein as the
"Banks"), as well as performance and payment of every obligation, warranty,
representation, covenant, agreement and promise of Borrowers, or any of them,
contained in all extensions, renewals, amendments, restatements and other
modifications of the Original Credit Agreement (with the Original Credit
Agreement, as so extended, renewed, amended, restated, substituted and/or
otherwise modified being collectively referred to herein as the "Credit
Agreement").
Pursuant to I.C. (S)32-8-11-9 this instrument secures: (i) future obligations
and advances up to the maximum amount stated herein (whether made as an
obligation, made at the option of Lenders, made after a reduction to a zero or
other balance, or made otherwise) to the same extent as if the future
obligations and advances were made on the date of execution of this mortgage;
and (ii) future modifications, extensions and renewals of any indebtedness or
obligations secured by this instrument.
2.2 OBLIGATIONS. The term "obligations" is used herein in its
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broadest and most comprehensive sense and shall be deemed to include, without
limitation, all protective advances and all sums advanced to protect the
Property or the lien of this Mortgage or otherwise disbursed or incurred under
the terms of the Loan Documents (as defined in the Credit Agreement), all
interest and charges, prepayment charges (if any), late charges and loan fees at
any time accruing or assessed on any of the Secured Obligations. All of the
Secured Obligations shall be payable without relief from valuation and
appraisement laws.
2.3 INCORPORATION. All terms of the Secured Obligations and the
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documents evidencing such obligations are incorporated herein by this reference.
All persons who may have or acquire an interest in the Property, or any portion
thereof, shall be deemed to have notice of the terms of the Secured Obligations,
which terms include without limitation, provisions which: (i) provide that the
rate of interest on one or more Secured Obligations may vary from time to time;
and (ii) permit borrowing, repayment and reborrowing.
ARTICLE 3. ASSIGNMENT OF LEASES AND RENTS
3.1 ASSIGNMENT. Mortgagor hereby irrevocably assigns to Mortgagee
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all of Mortgagor's right, title and interest in, to and under: (a) the Leases;
and (b) the Rents. This is a present and absolute assignment, not an assignment
for security purposes only, and Mortgagee's right to the Leases and Rents is not
contingent upon, and may be exercised without possession of, the Property and
without the commencement of a foreclosure action or the appointment of a
receiver or the institution of any legal proceeding of any kind whatsoever.
Furthermore, upon any Default (as defined by Article 5 below), Mortgagee shall
be entitled to receive pursuant to the foregoing assignment, and Mortgagor shall
be obligated to deliver to Mortgagee or its designee (including any receiver),
any and all Rents collected by Mortgagor which remain in the
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possession or control of Mortgagor, whether or not commingled with other funds
of Mortgagor, and whether collected by Mortgagor before or after the occurrence
of the Default.
3.2 GRANT OF LICENSE. Mortgagee confers upon Mortgagor a license
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("License") to collect and retain the Rents as they become due and payable,
until the occurrence of a Default (as hereinafter defined). Upon a Default, the
License shall be automatically revoked and Mortgagee may collect and apply the
Rents pursuant to Article 5 below, without notice and without taking possession
of the Property. Mortgagor hereby irrevocably authorizes and directs the lessees
under the Leases to rely upon and comply with any notice or demand by Mortgagee
for the payment to Mortgagee of any rental or other sums which may at any time
become due under the Leases, or for the performance of any of the lessees'
undertakings under the Leases, and the lessees shall have no right or duty to
inquire as to whether any Default has actually occurred or is then existing
hereunder. Mortgagor hereby relieves the lessees from any liability to Mortgagor
by reason of relying upon and complying with any such notice or demand by
Mortgagee.
3.3 EFFECT OF ASSIGNMENT. The foregoing irrevocable assignment shall
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not cause Mortgagee to be: (a) a mortgagee in possession; (b) responsible or
liable for the control, care, management or repair of the Property, or for
performing any of the terms, agreements, undertakings, obligations,
representations, warranties, covenants and conditions of the Leases; (c)
responsible or liable for any waste committed on the Property by the lessees
under any of the Leases or any other parties; (d) responsible or liable for any
dangerous or defective condition of the Property; or (e) responsible or liable
for any negligence in the management, upkeep, repair or control of the Property
resulting in loss or injury or death to any lessee, licensee, employee, invitee
or other person. Mortgagee shall not directly or indirectly be liable to
Mortgagor or any other person as a consequence of: (i) the exercise or failure
to exercise any of the rights, remedies or powers granted to Mortgagee
hereunder; or (ii) the failure or refusal of Mortgagee to perform or discharge
any obligation, duty or liability of Mortgagor arising under any of the Leases.
3.4 REPRESENTATIONS AND WARRANTIES. Mortgagor represents and
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warrants that: (a) to Mortgagor's knowledge, all existing Leases are in full
force and effect and are enforceable in accordance with their respective terms,
and no breach, default or event which would constitute a breach or default after
notice or the passage of time, or both, exists under any existing Leases on the
part of any party; (b) no rent or other payment under any existing Lease has
been paid by any lessee for more than one (1) month in advance; and (c) none of
the Mortgagor's interests under any of the Leases has been transferred or
assigned.
3.5 COVENANTS. Mortgagor covenants and agrees at Mortgagor's sole
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cost and expense to: (a) perform the lessor's obligations contained in the
Leases and enforce by all available remedies performance by the lessees of the
obligations of the lessees contained in the Leases; and (b) execute and record
(or cause to be executed and recorded) such additional assignments of any Lease
or specific subordinations of any Lease to this Mortgage, in form and substance
acceptable to Mortgagee, as Mortgagee may reasonably request. Mortgagor shall
not, without Mortgagee's prior written consent or as otherwise permitted by any
provision of the Credit Agreement: (i) execute any other assignment relating to
any of the Leases; or (ii) subordinate or agree to subordinate any of the Leases
to pay other mortgage or encumbrance. Any such action in violation of this
Section 3.5 shall be null and void.
ARTICLE 4. RIGHTS AND DUTIES OF THE PARTIES
4.1 LIEN AND PRIORITY. Mortgagor represents, warrants and covenants
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that this Mortgage creates a first priority mortgage lien on the Land and all of
the Property which is in addition to the Land, subject only to ECHC Permitted
Encumbrances (as defined in the Credit Agreement).
4.2 PAYMENT OF SECURED OBLIGATIONS. Mortgagor shall pay when due, or
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cause to be paid when due: (i) the principal of, and interest on, the
indebtedness evidenced by the Notes; (ii) all charges, fees and other sums as
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provided in the Loan Documents (as defined in the Credit Agreement) including,
without limitation, all reasonable costs, fees and expenses of this mortgage
incurred by Mortgagee in connection with any Default; (iii) the principal of,
and interest on, any future advances secured by this Mortgage; and (iv) the
principal of, and interest on, any other indebtedness secured by this Mortgage.
4.3 COMPLIANCE WITH LAWS. Mortgagor shall comply in all material
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respects with all applicable material existing and future laws, rules,
regulations, orders, ordinances and requirements of all Governmental Authorities
(as defined in the Credit Agreement), and with all recorded covenants and
restrictions affecting the Property.
4.4 MAINTENANCE OF PROPERTY. Except to the extent that any of the
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following would be prohibited under, or would constitute a violation of, the
terms and conditions of the Credit Agreement, Mortgagor agrees: (a) to properly
care for and keep said Property in good condition and repair; (b) not to remove,
demolish or substantially alter any material building on the Property, except
upon the prior written consent of Mortgagee; (c) to complete promptly and in a
good and workmanlike manner any building or other improvement which may be
constructed on the Property, and to pay when due all claims for labor performed
and materials furnished therefor (subject to Mortgagor's right to contest the
validity or amount of mechanic's and/or materialman's liens in accordance with
Section 5.04 of the Credit Agreement); (d) not to commit or permit any waste or
deterioration of the Property (ordinary wear and tear, casualty and condemnation
excepted); (e) not to commit, suffer or permit any act to be done, or condition
to exist, in or upon said Property in material violation of any law, covenant,
condition or restriction now, or hereafter, affecting said Property (including
any which require alteration or improvement thereof); (f) to keep and maintain
all grounds, sidewalks, roads, parking and landscaped areas situate on the
Property in good and neat order and repair; (g) not to drill or extract or enter
into any lease for the drilling for or extraction of oil, gas or other
hydrocarbon substances or any mineral of any kind or character on or from the
Property or any part thereof; (h) not to apply for, willingly suffer or permit
any subdivision, change in land use regulation, or inclusion within a general
improvement district or similar assessment mechanism, with regard to any portion
of the Property without the prior written consent of Mortgagee; and (i) except
as otherwise permitted in the Credit Agreement, to do all other acts, in a
timely and proper manner, which, from the character or use of the Property, may
be reasonably necessary to maintain and preserve its value, the specific
enumerations herein not excluding the general.
4.5 INSURANCE. During the continuance of this mortgage, Mortgagor
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shall obtain, or cause to be obtained, and shall maintain or cause to be
maintained, at all times throughout the term of the Bank Facilities, at its own
cost and expense, and shall deposit with Mortgagee, Certificates of Insurance,
each in a form and substance, and at such times, as is required under Section
5.09 of the Credit Agreement. All monies received from "All Risk" insurance
policies (including flood and earthquake policies) covering any of the Property
shall be: (i) paid directly to Mortgagee and retained by Mortgagee or released
to Mortgagor by Mortgagee; or (ii) paid directly to Mortgagor; all in accordance
with Section 8.02 of the Credit Agreement. Nothing in this Mortgage shall be
deemed to excuse Mortgagor from restoring, repairing and maintaining the
Property, as herein provided, regardless of whether or not insurance proceeds
are available for restoration, whether or not any such proceeds are sufficient
in amount, or whether or not the Property can be restored to the same condition
and character as existed prior to such damage or destruction.
4.6 TAXES AND ASSESSMENTS. Mortgagor shall pay all taxes,
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assessments and other governmental charges or levies affecting said Property, or
any part thereof, in the manner required by the Credit Agreement except such
taxes, assessments and other governmental levies as are being contested in good
faith in the manner provided by Section 4.07 or Section 5.10 of the Credit
Agreement.
4.7 LIEN CLAIMS. If any mechanic's lien or materialman's lien shall
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be recorded, filed or suffered to exist against the Property or any interest
therein by reason of any work, labor, services or materials supplied, furnished
or claimed to have been supplied and furnished in connection with any work of
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improvement upon the Property, said lien or claim shall be paid, released or
otherwise discharged of record to the extent required by, and in accordance
with, Section 5.04 of the Credit Agreement.
4.8 EASEMENTS. If an easement or other incorporeal right
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(collectively, an "Easement") constitutes any portion of the Property, Mortgagor
shall not amend, change, terminate or modify such Easement, or any right thereto
or interest therein, without the prior written consent of Mortgagee, which
consent may be withheld in Mortgagee's sole discretion, and any such amendment,
change, termination or modification without such prior written consent shall be
deemed void and of no force or effect. Mortgagor agrees to perform all
obligations and agreements with respect to said Easement and shall not take any
action or omit to take any action which would effect or permit the termination
thereof. Upon receipt of notice, or otherwise becoming aware, of any default or
purported default under any Easement, by any party thereto, Mortgagor shall
promptly notify Mortgagee in writing of such default or purported default and
shall deliver to Mortgagee copies of all notices, demands, complaints or other
communications received or given by Mortgagor with respect to any such default
or purported default.
4.9 PERFORMANCE BY MORTGAGEE. Should Mortgagor fail to make any
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payment or perform any act which it is obligated to make or perform hereunder or
under the Credit Agreement, then Mortgagee, at its election, without giving
notice to Mortgagor, or any successor in interest of Mortgagor, and without
releasing Mortgagor from any obligation hereunder, may make such payment or
perform such act and incur any liability, or expend whatever amounts, in its
discretion, it may deem necessary therefor. All sums incurred or expended by
Mortgagee, under the terms hereof, shall become due and payable by Mortgagor to
Mortgagee, on the next interest or instalment payment date under any of the
promissory notes secured hereby and shall bear interest until paid at an annual
percentage rate equal to the Default Rate expressed in the Credit Agreement. In
no event shall such payment or performance of any such act by Mortgagee be
construed as a waiver of the default occasioned by Mortgagor's failure to make
such payment(s) or perform such act(s).
4.10 ACTIONS AFFECTING PROPERTY. Mortgagor promises and agrees that
--------------------------
if, during the existence of this Mortgage, there shall be commenced or pending
any suit or action affecting said Property, or any part thereof, or the title
thereto, or if any adverse claim for or against said Property, or any part
thereof, be made or asserted, it will appear in and defend any such matter
purporting to affect the security of this Mortgage and will pay all costs and
damages arising because of such action.
4.11 EMINENT DOMAIN. Any award of damages in connection with any
--------------
condemnation or similar actions in regard to said Property, or any part thereof,
shall be: (i) paid directly to Mortgagee and shall be retained by Mortgagee or
released to Mortgagor by Mortgagee; or (ii) paid directly to Mortgagor; all in
accordance with Section 8.02 of the Credit Agreement.
4.12 SUBROGATION. To the extent that any sums advanced by Mortgagee
-----------
are used to pay any outstanding lien, charge or prior encumbrance against the
Property, such sums shall be deemed to have been advanced by Mortgagee at the
request of Mortgagor and Mortgagee shall be subrogated to any and all rights and
liens held by any owner or holder of such outstanding liens, charges and prior
encumbrances, regardless of whether said liens, charges or encumbrances are
released.
4.13 DUE ON SALE. If Mortgagor shall be voluntarily, or
-----------
involuntarily, divested of title or possession of any Property, by merger or
otherwise, or shall lease, sell, convey, further encumber or in any other manner
voluntarily or involuntarily alienate any of its interest in any of the
Property, (other than utility easements granted in the ordinary course of
business) or shall enter into an agreement to do any of the foregoing, other
than as permitted in the Credit Agreement, any indebtedness or obligation
secured hereby, irrespective of the maturity dates expressed in any notes
evidencing the same, shall at the option of Mortgagee, and upon the giving of
any notice which may be required under the Credit Agreement, immediately become
due and payable.
9
4.14 PARTIAL OR LATE PAYMENT. By accepting payment of any sum
-----------------------
secured hereby after its due date, Mortgagee does not waive its right either to
require prompt payment, when due, of all other sums so secured or to declare
default, as herein provided, for failure to so pay.
4.15 RIGHT OF MORTGAGEE TO APPEAR. If, during the existence of this
----------------------------
Mortgage, there be commenced or pending any suit or action affecting the
Property, or any part thereof, or the title thereto, or if any adverse claim for
or against the Property, or any part thereof, be made or asserted, Mortgagee
(unless such suit, action or claim is being contested in good faith by Mortgagor
and Mortgagor shall have established and maintained adequate reserves in
accordance with generally accepted accounting principles for the full payment
and satisfaction of such suit or action if determined adversely to Mortgagor),
may appear or intervene in the suit or action and retain counsel therein and
defend same, or otherwise take such action therein as they may be advised, and
may settle or compromise same or the adverse claim; and in that behalf and for
any of the purposes may pay and expend such sums of money as the Mortgagee may
deem to be necessary and Mortgagor shall reimburse Mortgagee for such sums
expended, together with accrued interest thereon, at the Default Rate which is
defined in the Credit Agreement.
4.16 EXCULPATION; INDEMNIFICATION.
----------------------------
(a) Mortgagee shall not directly or indirectly be liable to
Mortgagor or any other person as a consequence of (i) the exercise of the
rights, remedies or powers granted to Mortgagee in this Mortgage (unless the
loss is caused by the gross negligence or willful misconduct of Mortgagee); (ii)
the failure or refusal of Mortgagee to perform or discharge any obligation or
liability of Mortgagor under any agreement related to the Property or under this
Mortgage; or (iii) any loss sustained by Mortgagor or any third party resulting
from Mortgagee's failure to lease the Property, or any portion thereof, after a
Default or from any other act or omission of Mortgagee in managing the Property
after a Default (unless the loss is caused by the gross negligence or willful
misconduct of Mortgagee) and no such liability shall be asserted against or
imposed upon Mortgagee, and all such liability is hereby expressly waived and
released by Mortgagor. It is agreed by Mortgagor that the liability waived and
released by Mortgagor pursuant to the preceding sentence shall include any
liability arising from or caused by the sole, joint, active, or passive,
concurrent or contributing, negligence or fault of Mortgagee or its agents, and
even though such liability is based upon the strict liability of Mortgagee or
its agents.
(b) Mortgagor agrees to and does hereby jointly and severally
indemnify, protect, defend and save harmless Mortgagee and each of the Banks and
their respective directors, trustees, officers, employees, agents, attorneys and
shareholders (individually an "Indemnified Party" and collectively the
"Indemnified Parties") from and against any and all losses, damages, expenses or
liabilities of any kind or nature from any investigations, suits, claims,
demands or other proceedings, including reasonable counsel fees incurred in
investigating or defending such claim, suffered by any of them and caused by,
relating to, arising out of, resulting from, or in any way connected with this
Mortgage, any of the Property, or Mortgagee's exercise or enforcement of any
rights or remedies which it may have hereunder; provided, however, Mortgagor
shall not be obligated to indemnify, protect, defend or save harmless an
Indemnified Party if, and to the extent, the loss, damage, expense or liability
was caused by (a) the gross negligence or wilful misconduct of such Indemnified
Party, or (b) the breach of this Mortgage or any other Loan Document by such
Indemnified Party or the breach of any laws, rules or regulations by such
Indemnified Party (other than those breaches of laws arising from any Borrower's
default). In case any action shall be brought against any Indemnified Party
based upon any of the above and in respect to which indemnity may be sought
against Mortgagor, Mortgagee shall promptly notify Mortgagor in writing, and
Mortgagor shall assume the defense thereof, including the employment of counsel
selected by Mortgagor and reasonably satisfactory to Mortgagee, the payment of
all costs and expenses and the right to negotiate and consent to settlement.
Upon reasonable determination made by an Indemnified Party that such counsel
would have a conflict representing such Indemnified Party and Mortgagor, the
applicable Indemnified Party shall have the right to employ, at the expense of
Mortgagor, separate counsel in any such
10
action and to participate in the defense thereof. Mortgagor shall not be liable
for any settlement of any such action effected without their consent, but if
settled with Mortgagor's consent, or if there be a final judgment for the
claimant in any such action, Mortgagor agrees to indemnify, defend and save
harmless such Indemnified Parties from and against any loss or liability by
reason of such settlement or judgment. In the event that any Person is adjudged
by a court of competent jurisdiction not to have been entitled to
indemnification under this Section 4.16, it shall repay all amounts with respect
to which it has been so adjudged. If and to the extent that the indemnification
provisions contained in this Section 4.16 are unenforceable for any reason, the
Mortgagor hereby agrees to make the maximum contribution to the payment and
satisfaction of such obligations that is permissible under applicable law. The
provisions of this Section 4.16 shall survive the termination of this Mortgage
and the repayment of the Secured Obligations.
4.17 RELEASES, EXTENSIONS, MODIFICATIONS AND ADDITIONAL SECURITY.
-----------------------------------------------------------
Without notice to or the consent, approval or agreement of any persons or
entities having any interest at any time in the Property or in any manner
obligated under the Secured Obligations ("Interested Parties"), Mortgagee may,
from time to time, release any person or entity from liability for the payment
or performance of any Secured Obligation, take any action or make any agreement
extending the maturity or otherwise altering the terms or increasing the amount
of any Secured Obligation, or accept additional security or release all or a
portion of the Property and other security for the Secured Obligations. None of
the foregoing actions shall release or reduce the personal liability of any of
said Interested Parties, or release or impair the priority of the lien of this
Mortgage upon the Property.
4.18 RIGHT OF INSPECTION. Mortgagee, its agents and employees, may
-------------------
enter the Property at any reasonable time, upon reasonable advance notice, for
the purpose of inspecting the Property and ascertaining Mortgagor's compliance
with the terms hereof.
ARTICLE 5. DEFAULT PROVISIONS
5.1 DEFAULT. For all purposes hereof, the term "Default" shall mean
-------
the existence of any Event of Default as defined by Section 7.01 of the Credit
Agreement.
5.2 RIGHTS AND REMEDIES. At any time after Default, Mortgagee shall
-------------------
have all the following rights and remedies (in addition to (and without
limiting) any rights and remedies that are available hereunder, or under
applicable law):
(a) With or without notice, to declare all Secured Obligations
immediately due and payable;
(b) With or without notice, and without releasing Mortgagor
from any Secured Obligation, and without becoming a mortgagee in possession, to
cure any breach or Default of Mortgagor and, in connection therewith, to enter
upon the Property and do such acts and things as Mortgagee deems necessary or
desirable to protect the security hereof, including, without limitation: (i) to
appear in and defend any action or proceeding purporting to affect the security
of this Mortgage or the rights or powers of Mortgagee; (ii) to pay, purchase,
contest or compromise any encumbrance, charge, lien or claim of lien which, in
the sole judgment of Mortgagee, is or may be senior in priority to this
Mortgage, the judgment of Mortgagee being conclusive as between the parties
hereto; (iii) to obtain insurance; (iv) to pay any premiums or charges with
respect to insurance required to be carried under the Loan Documents; and (v) to
employ counsel, accountants, contractors and other appropriate persons;
(c) To commence and maintain an action or actions in any court
of competent jurisdiction to foreclose this Mortgage or to obtain specific
enforcement of the covenants of Mortgagor hereunder, and Mortgagor agrees that
such covenants shall be specifically enforceable by injunction or any other
appropriate equitable remedy and that for the purposes of any suit brought under
this subparagraph, Mortgagor waives the defense of laches and any applicable
statute of limitations;
11
(d) To apply to a court of competent jurisdiction for and obtain
appointment of a receiver of the Property as a matter of strict right and
without regard to the adequacy of the security for the repayment of the Secured
Obligations, the existence of a declaration that the Secured Obligations are
immediately due and payable, or the filing of a notice of default, and Mortgagor
hereby consents to such appointment;
(e) To enter upon, possess, manage and operate the Property or
any part thereof, to take and possess all documents, books, records, papers and
accounts of Mortgagor or the then owner of the Property, to make, terminate,
enforce or modify Leases of the Property upon such terms and conditions as
Mortgagee deems proper, to make repairs, alterations and improvements to the
Property as necessary, in Mortgagee's sole judgment, all to protect or enhance
the security hereof, and all to the extent permitted by applicable law;
(f) To execute a written notice of such Default and of its
election to cause the Property to be sold to satisfy the Secured Obligations (to
the extent permitted by applicable law). As a condition precedent to any such
sale, Mortgagee shall give, post and record such notices as Indiana law then
requires. When the minimum period of time required after such notices has
elapsed, Mortgagee, without notice to or demand upon Mortgagor except as
required by law, shall sell the Property at the time and place of sale fixed by
it in the notice of sale, at one or several sales, either as a whole or in
separate parcels and in such manner and order, all as Mortgagee in its sole
discretion may determine, at public auction to the highest bidder for cash, in
lawful money of the United States, payable at time of sale. Neither Mortgagor
nor any other person or entity other than Mortgagee shall have the right to
direct the order in which the Property is sold. Subject to requirements and
limits imposed by law, Mortgagee may from time to time postpone sale of all or
any portion of the Property by public announcement at such time and place of
sale. Mortgagee shall deliver to the purchaser at such sale a deed conveying the
Property or portion thereof so sold, but without any covenant or warranty,
express or implied. The recitals in the deed of any matters or facts shall be
conclusive proof of the truthfulness thereof. Any person, including Mortgagee or
Mortgagor may purchase at the sale;
(g) To resort to and realize upon the security hereunder and any
other security now or later held by Mortgagee concurrently or successively and
in one or several consolidated or independent judicial actions or lawfully taken
non-judicial proceedings, or both, and to apply the proceeds received upon the
Secured Obligations all in such order and manner as Mortgagee determines in its
sole discretion;
(h) Upon sale of the Property pursuant to the power of sale
granted herein or at any judicial or non-judicial foreclosure, Mortgagee may
credit bid (as determined by Mortgagee in its sole and absolute discretion) all
or any portion of the Secured Obligations. In determining such credit bid,
Mortgagee may, but is not obligated to, take into account all or any of the
following: (i) appraisals of the Property as such appraisals may be discounted
or adjusted by Mortgagee in its sole and absolute underwriting discretion; (ii)
expenses and costs incurred by Mortgagee with respect to the Property prior to
foreclosure; (iii) expenses and costs which Mortgagee anticipates will be
incurred with respect to the Property after foreclosure, but prior to resale,
including, without limitation, costs of structural reports and other due
diligence, costs to carry the Property prior to resale, costs of resale (e.g.
commissions, attorneys' and paralegals' fees, and taxes), costs of any hazardous
materials clean-up and monitoring, costs of deferred maintenance, repair,
refurbishment and retrofit, costs of defending or settling litigation affecting
the Property, and lost opportunity costs (if any), including the time value of
money during any anticipated holding period by Mortgagee; (iv) declining trends
in real property values generally and with respect to properties similar to the
Property; (v) anticipated discounts upon resale of the Property as a distressed
or foreclosed property; (vi) the fact of additional collateral (if any), for the
Secured Obligations; and (vii) such other factors or matters that Mortgagee (in
its sole and absolute discretion) deems appropriate. In regard to the above,
Mortgagor acknowledges and agrees that: (w) Mortgagee is not required to use any
or all of the foregoing factors to determine the amount of its credit bid; (x)
this Section does not impose upon Mortgagee any additional obligations that are
not imposed by law at the
12
time the credit bid is made; (y) the amount of Mortgagee's credit bid need not
have any relation to any loan-to-value ratios specified in the Loan Documents or
previously discussed between Mortgagor and Mortgagee; and (z) Mortgagee's credit
bid may be (at Mortgagee's sole and absolute discretion) higher or lower than
any appraised value of the Property.
(i) The rights and remedies of Mortgagee upon the occurrence of
one or more Defaults (whether such rights and remedies are conferred by statute,
by rule of law, by this Mortgage, by any Loan Document, as defined in the Credit
Agreement, or otherwise) may be exercised by Mortgagee, in the sole discretion
of Mortgagee, either alternatively, concurrently, or consecutively in any order.
The exercise by Mortgagee of any one or more of such rights and remedies shall
not be construed to be an election of remedies nor a waiver of any other rights
and remedies Mortgagee might have unless, and limited to the extent that,
Mortgagee shall so elect or so waive by an instrument in writing delivered to
Mortgagor.
5.3 APPLICATION OF PROCEEDS. All sums received by Mortgagee under
-----------------------
Section 5.2 shall be applied in payment of the Secured Obligations in the order
- -----------
set forth by Section 7.03 of the Credit Agreement; provided, however, Mortgagee
-------- -------
shall have no liability for funds not actually received by Mortgagee.
5.4 NO CURE OR WAIVER. Neither Mortgagee's nor any receiver's entry
-----------------
upon and taking possession of all or any part of the Property, nor any
collection of rents, issues, profits, insurance proceeds, condemnation proceeds
or damages, other security or proceeds of other security, or other sums, nor the
application of any collected sum to any Secured Obligation, nor the exercise or
failure to exercise of any other right or remedy by Mortgagee or any receiver
shall cure or waive any breach, Default or notice of default under this
Mortgage, or nullify the effect of any notice of default or sale (unless all
Secured Obligations then due have been paid and performed and Mortgagor has
cured all other defaults), or impair the status of the security, or prejudice
Mortgagee in the exercise of any right or remedy, or be construed as an
affirmation by Mortgagee of any tenancy, lease or option or a subordination of
the lien of this Mortgage.
5.5 PAYMENT OF COSTS, EXPENSES AND ATTORNEY'S AND PARALEGALS' FEES.
--------------------------------------------------------------
Mortgagor agrees to pay to Mortgagee immediately and upon demand all reasonable
costs and expenses incurred by Mortgagee in connection with the exercise of the
rights and remedies provided for herein and/or in any of the other Loan
Documents (including, without limitation, court costs, appraisal fees and
reasonable attorneys' and paralegals' fees, whether incurred in litigation or
not, and all whether internal costs, external costs or both) with interest from
the date such amounts are demanded hereunder until said sums have been paid, at
the Default Rate set forth by the Credit Agreement.
5.6 POWER TO FILE NOTICES AND CURE DEFAULTS. Mortgagor hereby
---------------------------------------
irrevocably appoints Mortgagee and its successors and assigns, as its attorney-
in-fact, which agency is coupled with an interest, (a) to execute and/or record
any notices of completion, cessation of labor, or any other notices that
Mortgagee deems appropriate to protect Mortgagee's interest, (b) upon the
issuance of a deed pursuant to the foreclosure of this Mortgage or power of sale
granted herein, or the delivery of a deed in lieu of foreclosure, to execute all
instruments of assignment or further assurance with respect to the Leases and
Rents in favor of the grantee of any such deed, as may be necessary or desirable
for such purpose, and (c) upon the occurrence of an event, act or omission
which, with notice or passage of time or both, would constitute a Default,
Mortgagee may perform any obligation of Mortgagor hereunder; provided, however,
-------- -------
that: (i) Mortgagee as such attorney-in-fact shall only be accountable for such
funds as are actually received by Mortgagee; and (ii) Mortgagee shall not be
liable to Mortgagor or any other person or entity for any failure to act under
this Section.
ARTICLE 6. MISCELLANEOUS PROVISIONS
6.1 ADDITIONAL PROVISIONS. The Loan Documents contain or incorporate
---------------------
by reference the entire agreement of the parties with respect to matters
contemplated herein and supersede all prior negotiations. The Loan Documents
13
grant further rights to Mortgagee and contain further agreements and affirmative
and negative covenants by Mortgagor which apply to this Mortgage and to the
Property and such further rights and agreements are incorporated herein by this
reference.
6.2 MERGER. No merger shall occur as a result of Mortgagee's
------
acquiring any other estate in, or any other lien on, the Property unless
Mortgagee consents to a merger in writing.
6.3 WAIVER OF MARSHALLING RIGHTS. Mortgagor, for itself and for all
----------------------------
parties claiming through or under Mortgagor, and for all parties who may acquire
a lien on or interest in the Property, hereby waives all rights to have the
Property and/or any other property which is now or later may be security for any
Secured Obligation ("Other Property") marshaled upon any foreclosure of this
Mortgage or on a foreclosure of any Other Property. Mortgagee shall have the
right to sell, and any court in which foreclosure proceedings may be brought
shall have the right to order a sale of, the Property and any or all of the
Other Property as a whole or in separate parcels, in any order that Mortgagee
may designate.
6.4 WAIVER OF RIGHTS OF REDEMPTION AND REINSTATEMENT. Mortgagor, for
------------------------------------------------
itself and for all parties claiming through or under Mortgagor, and for all
parties who may acquire a lien on or interest in the Property, hereby waives any
and all rights of redemption and reinstatement under law and under any order or
decree of foreclosure of this Mortgage, and all such rights of redemption and
reinstatement of Mortgagor and of all other persons, are and shall be deemed to
be hereby waived to the full extent permitted by the provisions of the
applicable law.
6.5 EXERCISE OF REMEDIES. Notwithstanding any of the terms or
--------------------
provisions contained in this Mortgage (or in any of the other Loan Documents),
if at any time after the occurrence of a Default under any of the Loan Documents
(but prior to the time (if any) that said Default has been cured to the
satisfaction of Mortgagee), Mortgagee has commenced to exercise one or more of
its remedies provided for herein (or provided in any of the other Loan Documents
or available at law or in equity), Mortgagee will not be precluded from
continuing to exercise all of its rights and remedies upon said Default
(notwithstanding the fact that Mortgagor may have cured, attempted to cure or be
in the process of curing said Default). It is the intention of the parties
hereto that (to the extent permitted by law) once Mortgagee has commenced to
exercise one or more of its rights or remedies (upon a Default), said Default
cannot be cured, unless Mortgagee expressly agrees in writing to accept said
cure and to cease the exercise of said rights and remedies.
6.6 RULES OF CONSTRUCTION. The term "Property" means all and any
---------------------
part of the Property and any interest in the Property.
6.7 SUCCESSORS IN INTEREST. The terms, covenants, and conditions
----------------------
herein contained shall be binding upon and inure to the benefit of the
successors and assigns of the parties hereto; provided, however, that this
-------- -------
section does not waive or modify any restrictions on transfer contained herein
or in any of the other Loan Documents.
6.8 GOVERNING LAW. MORTGAGOR AGREES THAT THIS MORTGAGE, THE CREDIT
-------------
AGREEMENT, THE NOTES AND ALL OTHER RELATED DOCUMENTS ARE TO BE CONSTRUED,
GOVERNED AND ENFORCED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF
INDIANA WITHOUT REGARD TO CONFLICT OF LAW PRINCIPLES.
6.9 INCORPORATION. Exhibit A is incorporated into this Mortgage by
------------- ---------
this reference.
6.10 NOTICES. All notices, reports, demands, requests and other
-------
communications authorized or required under this Mortgage to be given to
Mortgagor or Mortgagee, shall be given in the manner and to the addresses
specified in the Credit Agreement for the giving of notices. Mortgagor shall
forward to Mortgagee, without delay, any notices, letters or other
communications delivered to the Property or to Mortgagor naming Mortgagee,
"Lender" or any similar designation as addressee, or which could reasonably be
14
deemed to affect the ability of Mortgagor to perform its obligations to
Mortgagee under the Notes, the Credit Agreement or any other Loan Documents.
6.11 MAXIMUM INDEBTEDNESS; FUTURE ADVANCES. This Mortgage shall
-------------------------------------
secure not only existing indebtedness but also such future advances, whether
such advances are obligatory or to be made at the option of Mortgagee, or
otherwise, to the same extent as if such future advances were made on the date
of the execution of this Mortgage.
6.12 SEVERABILITY. If any provision or obligation under this
------------
Mortgage shall be determined by a court of competent jurisdiction to be invalid,
illegal or unenforceable, that provision shall be deemed severed from the
Mortgage and the validity, legality and enforceability of the remaining
provisions or obligations shall remain in full force as though the invalid,
illegal or unenforceable provision had never been a part of the Mortgage.
6.13 TIME. Time is of the essence of each and every term of this
----
Mortgage.
6.14 NO INTEREST IN GAMING LICENSE. The terms of this Mortgage
-----------------------------
notwithstanding, it is specifically provided that no interest is granted
hereunder in, or to, the Gaming License which was granted to Mortgagor by the
Indiana Gaming Commission (the "Gaming License") and that the Gaming License is
specifically excluded from the Property, as defined herein.
IN WITNESS WHEREOF, Mortgagor has executed this Mortgage as of the day
and year set forth above.
MORTGAGOR HEREBY DECLARES AND ACKNOWLEDGES THAT IT HAS RECEIVED,
WITHOUT CHARGE, A TRUE COPY OF THIS MORTGAGE.
"MORTGAGOR"
EMPRESS CASINO HAMMOND
CORPORATION, an
Indiana corporation
By__________________________
Name________________________
Title_______________________
15
STATE OF ___________)
) ss
COUNTY OF __________)
Before me a Notary Public in and for the State of
________________________, personally appeared ___________________, the
_____________________ of EMPRESS CASINO HAMMOND CORPORATION, an Indiana
corporation, who being first duly sworn, acknowledged the execution of the
foregoing instrument for and on behalf of said corporation.
Witness my hand and Notarial Seal this ___ day of ________, 1998.
____________________________
Notary Public
____________________________
Printed Name
I am a resident of _____________________ County, __________. Mu
commission expires: _________________________________________.
This Instrument was prepared by
James L. Morgan, Esq.
Henderson & Morgan, LLC
164 Hubbard Way, Suite B
Reno, Nevada 89502;
(702) 825-7000
16
EXHIBIT A
LEGAL DESCRIPTION
-----------------