EXHIBIT 4.8(g)
SECURITY AGREEMENT
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(ECHC)
THIS SECURITY AGREEMENT (ECHC) ("Agreement") is made and entered into
as of June 17, 1998, by and between EMPRESS CASINO HAMMOND CORPORATION, an
Indiana corporation, party of the first part (hereinafter referred to as
"Debtor") and WELLS FARGO BANK, National Association, as administrative and
collateral agent for the Lenders, the Swingline Lender and the L/C Issuer, all
of which are defined in the Credit Agreement, referred to below, party of the
second part (hereinafter referred to, in such capacity, as "Secured Party").
R E C I T A L S:
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A. Reference is made to that certain Credit Agreement (as it may
be hereafter renewed, extended, amended, restated or otherwise modified, the
"Credit Agreement") executed concurrently, or substantially concurrent, herewith
by and among Debtor, Empress Entertainment, Inc., a Delaware corporation, and
Empress Casino Joliet Corporation, an Illinois corporation (collectively,
"Borrowers"), the Lenders therein named (each, together with their respective
successors and assigns, individually being referred to herein as a "Lender" and
collectively as the "Lenders"), the Swingline Lender therein named (referred to
herein, together with its successors and assigns, as the "Swingline Lender"),
the L/C Issuer therein named (referred to herein, together with its successors
and assigns, as the "L/C Issuer"), and Agent Bank. Agent Bank, the Lenders, the
Swingline Lender and the L/C Issuer are collectively referred to herein as the
"Banks".
B. Pursuant to the Credit Agreement, and subject to the terms and
conditions specified therein, the Lenders have agreed to provide a reducing
revolving credit facility to Borrowers with an initial maximum principal amount
of One Hundred Million Dollars ($100,000,000.00) available for Borrowings
thereunder (together with all extensions, renewals, amendments, substitutions
and other modifications thereof, the "Credit Facility"), which Credit Facility
includes: (i) a subfacility for funding of Swingline Advances by the Swingline
Lender on shorter notice and in lesser amounts than would otherwise be required
for Borrowings under the Credit Facility (together with all extensions,
renewals, amendments, substitutions, and other modifications thereof, the
"Swingline Facility"); and (ii) a subfacility for the issuance of Letters of
Credit by the L/C Issuer (together with all extensions,
renewals, amendments, substitutions and other modifications thereof, the "L/C
Facility" and, together with the Credit Facility and the Swingline Facility, the
"Bank Facilities"); all as more particularly set forth by the Credit Agreement.
C. In this Agreement all capitalized words and terms not otherwise
defined herein shall have the respective meanings and be construed herein as
provided in Section 1.01 of the Credit Agreement and any reference to a
provision of the Credit Agreement shall be deemed to incorporate that provision
as a part hereof in the same manner and with the same effect as if the same were
fully set forth herein.
D. The provisions of Section 1.02 of the Credit Agreement shall be
applied to this Agreement in the same manner as applied therein to the Credit
Agreement.
E. As a condition of their entry into the Credit Agreement, and
their commitment to provide the Bank Facilities for the benefit of Borrowers
(subject to the terms of the Credit Agreement and the other Loan Documents), the
Banks have required, among other things, that Debtor grant the security
interests, and undertake the obligations, contemplated by this Agreement.
NOW, THEREFORE, in order to induce the Banks to enter into the Credit
Agreement, and to provide the Bank Facilities, and for other good and valuable
consideration, the receipt and adequacy of which hereby is acknowledged, Debtor
and Secured Party hereby agree as follows:
ARTICLE I
SECURITY INTEREST AND COLLATERAL
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Section 1.01. Creation of Security Interest.
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(a) For valuable consideration, Debtor hereby assigns,
pledges and grants to Secured Party a continuing security interest in, and lien
upon, all presently existing and hereafter acquired Collateral (as defined
below), as security for the timely payment and performance of each and every
Secured Obligation (as also defined below). This Agreement is a continuing and
irrevocable agreement and all the rights, powers, privileges and remedies
hereunder shall apply to any and all Secured Obligations, including those
arising under successive transactions which shall either continue the Secured
Obligations, increase or decrease them, or from time to time create new Secured
Obligations after all or
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any prior Secured Obligations have been satisfied, and notwithstanding the
bankruptcy of Borrower, Debtor or any other Person or any other event or
proceeding affecting any Person.
(b) The security interest which is granted hereunder is
subject to the following:
(i) the right of Debtor to sell or otherwise dispose of
Personal Property in the ordinary course of business, free and clear of the lien
hereof, provided, and to the extent, that such sale or other disposition is
permitted under the terms of the Credit Agreement; and
(ii) as to the fixtures and equipment covered hereby,
the leases and/or purchase money security interests pursuant to which Debtor has
acquired an interest in such fixtures and equipment provided, and to the extent,
that such leases and/or purchase money security interests are permitted under
the terms of the Credit Agreement.
Section 1.02. Description of Collateral. All references herein to
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the "Collateral" shall be to all right, title and interest of Debtor, whether
now owned or existing, or hereafter acquired or arising, in, to and under any of
the following (subject to the exclusions set forth by subsection (p) below):
(a) All present and future chattels, furniture, furnishings, equipment
and fixtures, all of every kind and nature, and other tangible personal
property: (i) which is used in connection with, situate in or on, or affixed
to, any portion of the real property which is particularly described by "Exhibit
A" attached hereto and incorporated by reference herein (the "Real Property");
(ii) which is used in connection with, placed on, or incorporated into any of
the Vessels which are referred to below; and/or (iv) in which Debtor otherwise
has or acquires an interest; all including, without limitation: (aa) all
furniture, furnishings, wall coverings, floor coverings, window coverings,
artwork and decorative items including, without limitation, casino, guest room,
bathroom, lobby, bar, restaurant, storage, retail, meeting, convention, leisure,
recreation, office, administrative and other furniture, furnishings, wall
coverings, floor coverings, window coverings, artwork and decorative items; (bb)
all bar and restaurant equipment and supplies, including, without limitation,
kitchen and bar appliances, pots, pans, plates, dishes, cups, glasses, serving
utensils, cooking utensils and all other equipment and supplies used in the
operation of bars and/or restaurants;
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(cc) all casino equipment and supplies including, without limitation, slot
machines, gaming tables, cards, dice, gaming chips, player tracking systems,
Gaming Devices and Related Equipment as defined in applicable Indiana gaming law
and all other equipment and supplies utilized in operation of a casino; (dd) all
cabaret, stage and entertainment equipment and supplies including, without
limitation, stage equipment, sets, spotlights, sound equipment, musical
instruments and other equipment and supplies utilized in the operation of stage
and cabaret shows and other entertainment productions; (ee) all office and
administrative equipment and supplies including, without limitation, office
appliances, filing cabinets, computers, peripheral computer equipment and other
data processing and storage equipment, stationery and other office supply items,
and other office and administrative equipment and supplies; (ff) all tools and
other maintenance and repair equipment; and (gg) all equipment and supplies
utilized in connection with any other activity engaged in by Debtor;
(b) The following vessels (collectively, the "Vessels"): (i) that
certain casino vessel named "Empress III" which is designated by U.S. Coast
Guard Official Number 1035267 and which is currently afloat on Lake Michigan at
Hammond, Indiana ("Empress III"); and (ii) any vessels which are hereafter
substituted for Empress III; and all other boats, barges and other vessels which
are now owned or hereafter acquired, regardless of whether afloat or placed on
dry land together with any and all present and future engines, boilers,
machinery, components, masts, boats, anchors, cables, chains, rigging, tackle,
apparel, furniture, capstans, outfit, tools, pumps, gear, furnishings,
appliances, fittings, spare and replacement parts, and any and all other
appurtenances to any of the Vessels whether now or hereafter acquired, and
whether on board or not on board, all accounts, earned hire, charter payments,
freight, earnings, revenues, income and profit from any of the Vessels; and all
log books, manuals, trip records, maintenance records, inspection reports,
seaworthiness certificates, and other historical records or information relating
to any of the Vessels;
(c) All present and future supplies, inventory and merchandise which
is used in connection with, or in the conduct of, the business of Debtor or in
which Debtor has or acquires an interest, including, without limitation: (i)
all present and future goods held for sale or lease or to be furnished under a
contract of service, all raw materials, work in process and finished goods, all
packing materials, supplies and containers
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relating to or used in connection with any of the foregoing, and all bills of
lading, warehouse receipts or documents of title relating to any of the
foregoing; (ii) all food stuffs, beverages, prepared food and other similar
items; and (iii) all cleaning supplies, office supplies, consumables and similar
items;
(d) All present and future goods, which are not otherwise set forth
herein, and which are used in connection with, or in the conduct of, the
business of Debtor or in which Debtor has or acquires an interest;
(e) All present and future accounts, accounts receivable, rentals,
deposits, rights to payment, instruments, documents, chattel paper, security
agreements, guaranties, undertakings, surety bonds, insurance policies and notes
and drafts which are owned, or used in connection with, or in the conduct of,
the business of Debtor, or in which Debtor has or acquires an interest, however
created or arising;
(f) All present and future contracts, or agreements and all other
present and future general intangibles which are owned, or used in connection
with, or in the conduct of, the business of Debtor, or in which Debtor has or
acquires an interest, including, without limitation: (aa) all leases and
purchase contracts for equipment, furniture and/or fixtures of any kind and
character relating to the Real Property, the Vessels and/or the businesses
conducted thereon; (bb) all goodwill, choses in action, trade secrets, customer
lists, trademarks, trade names and service marks, patents, copyrights,
technology, processes, and proprietary information which are owned, or used in
connection with, or in the conduct of, the business of Debtor, or in which
Debtor has or acquires an interest (including, without limitation, the trade
names of "Empress", "Empress Casino", "Empress River Casino" and/or any
derivation thereof including any and all state and federal registrations
thereof); and (cc) all licenses, liquor licenses and other entitlements to the
extent that a security interest may be granted therein;
(g) All present and future deposit accounts which are owned, or used
in connection with, or in the conduct of, the business of Debtor, or in which
Debtor has or acquires an interest including, without limitation, any demand,
time, savings, passbook or like account maintained with any bank, savings and
loan association, credit union or like organization, and all money, cash and
cash equivalents of Debtor, whether or not deposited in any such deposit
account;
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(h) All present and future revenues, receipts, payments and income of
any nature whatsoever, in which Debtor now owns or hereafter acquires an
interest, regardless of whether such items are derived from or received with
respect to hotel rooms, banquet facilities, convention facilities, retail
premises, bars, restaurants, casinos or any other facilities on the Real
Property and/or the Vessels and regardless of whether such items are derived
from any other source;
(i) All present and future books and records which are owned, or used
in connection with, or in the conduct of, the business of Debtor, or in which
Debtor, has or acquires an interest including, without limitation, books of
account and ledgers of every kind and nature, all electronically recorded data
relating to the business of Debtor, all receptacles and containers for such
records, and all files and correspondence;
(j) Other than with respect to Unrestricted Subsidiaries, all present
and future investment property, stocks, bonds, debentures, securities,
subscription rights, options, warrants, puts, calls, certificates, partnership
interests, joint venture interests, investments and/or brokerage accounts which
are owned, or used in connection with, or in the conduct of, the business of
Debtor, or in which Debtor has or acquires an interest and all rights,
preferences, privileges, dividends, distributions, redemption payments, or
liquidation payments with respect thereto;
(k) All right, title and interest of Debtor in and to all leases,
licenses, concessions, or similar agreements whether or not specifically herein
described which now or may hereafter pertain to the Real Property and/or the
Vessels and all amendments to the same, including, but not limited to the
following: (aa) all payments due and to become due under such agreements,
whether as rent, damages, insurance payments, condemnation awards, or otherwise;
(bb) all claims, rights, powers, privileges and remedies under such agreements;
and (cc) all rights of the Debtor under such leases to exercise any election or
option, or to give or receive any notice, consent, waiver or approval, or to
accept any surrender of the premises or any part thereof, together with full
power and authority in the name of Debtor or otherwise, to demand and receive,
enforce, collect, or receipt for any or all of the foregoing, to endorse or
execute any checks or any instruments or orders, to file any claims or to take
any action which Secured Party may deem necessary or advisable in connection
therewith;
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(l) All plans, specifications, soil reports, engineering reports,
land planning maps, surveys, and any other reports, exhibits or plans used or to
be used in connection with the construction, planning, operation or maintenance
of the Real Property and/or the Vessels, together with all amendments and
modifications thereof;
(m) All present and future accessions, appurtenances, components,
repairs, repair parts, spare parts, replacements, substitutions, additions,
issue and/or improvements to or of or with respect to any of the foregoing;
(n) All rights, remedies, powers and/or privileges of Debtor with
respect to any of the foregoing;
(o) Any and all proceeds and products of any of the foregoing,
including, without limitation, all money, accounts, general intangibles, deposit
accounts, documents, instruments, chattel paper, goods, insurance proceeds, and
any other tangible or intangible property received upon the sale or disposition
of any of the foregoing; and
(p) It is specifically provided that the following (collectively, the
"Excluded Property") is excluded from the Collateral, and that no security
interest in the Excluded Property is granted hereunder:
(i) all of Debtor's right, title and interest in, and to, 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 Debtor;
(ii) all of Debtor's right, title and interest in, and to: (aa)
that certain License Agreement (the "Port Authority License") which is executed
under date of June 21, 1996 by and between the Hammond Port Authority and
Debtor, 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; and (bb) the Improvements
which are defined by Article I of the Port Authority License;
(iii) all of Debtor's right, title and interest in, and to: (aa)
that certain Lease (the "Redevelopment Lease")
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which is executed under date of June 19, 1996 by and between the City of Hammond
Department of Redevelopment and Debtor, 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. 9701160;
and (bb) the Redevelopment Parcel and Improvements which are defined by Article
I of the Redevelopment Lease;
(iv) all of Debtor's right, title and interest in, and to, 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 Debtor, 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;
(v) all of Debtor's right, title and interest in, and to, the
Gaming License issued to Debtor by the Indiana Gaming Commission;
(vi) any Deposit Accounts established by Debtor 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
Authority and H. Joseph Vaughn, President, DMS of Hammond, Inc. dated September
20, 1995;
(vii) any interest of Debtor in sewer capacity reservation set
forth in Quitclaim Deed, Bill of Sale and Sewer Capacity Reservation Agreement
between Debtor, 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;
(viii) 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 Debtor and as amended, and any
agreement entered into or to be entered into with EJE for the acquisition of
property to fulfill Debtor's commitments under the Development Agreement;
(ix) any portion of the parking garage which is situated on
property subject to the Redevelopment Lease, which portion is owned by Assignor
and which portion Assignor is required
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to convey to the City of Hammond and/or any of its political subdivisions;
(x) any investment or deposits made by Debtor pursuant to an
agreement to be entered into by and between the City of Hammond and Debtor
regarding guidelines for the investment by Debtor of Three Million Five Hundred
Thousand Dollars ($3,500,000.00) of the residential housing investment in
fulfillment of Debtor's obligations under Section 5.07 of the Development
Agreement; and
(xi) any interest of Debtor 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 and Hammond Enterprise Development Corporation for a One
Million Five Hundred Thousand Dollar ($1,500,000.00) loan pursuant to Debtor's
obligations under Section 5.07 of the Development Agreement.
Section 1.03. Secured Obligations. This Agreement secures, and the
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Collateral is security for, the following (collectively, the "Secured
Obligations"):
(a) 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 Credit
Facility 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 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 Note dated
concurrently, or substantially concurrent, herewith which is made by Borrowers
and is payable to the order of Secured Party according to the tenor and effect
of said Revolving Credit Note, and all renewals, extensions, amendments,
restatements, replacements, substitutions and other modifications thereof
(hereinafter collectively referred to as the "RLC Note").
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(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 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 dated concurrently, or
substantially concurrent, herewith which is made by Borrowers and is payable to
the order of Secured Party 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 Debtor concurrently, or substantially concurrent, herewith and which is to
be executed by Empress Casino Joliet Corporation prior to July 31, 1998.
(d) Payment and performance of every obligation, covenant,
promise and agreement of Debtor herein contained or incorporated herein by
reference, including any sums paid or advanced by Secured Party or any of the
Banks pursuant to the terms hereof.
(e) Payment of the expenses and costs incurred or paid by Secured
Party or any of the Banks in the preservation and enforcement of the rights and
remedies of Secured Party and the duties and liabilities of Debtor hereunder,
including, but not by way of limitation, reasonable attorney's fees, court
costs, witness fees, expert witness fees, collection costs, and reasonable costs
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and expenses paid by Secured Party or any of the Banks in performing for
Debtor's account any obligation of said Debtor.
(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 Borrowers, or any of them, against
fluctuations in interest rates or currency exchange rates with respect to any
indebtedness secured by this Agreement.
(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
Agreement is security therefor.
(h) Performance and payment of every obligation, warranty,
representation, covenant, agreement and promise of Borrowers, or any of them,
which are contained in the Credit Agreement.
Section 1.04. For Security Purposes Only. The assignment, pledge,
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and grant of a security interest in Debtor's interest(s) in the Collateral,
hereunder, is for security purposes only and shall not make Secured Party
responsible for, or otherwise affect or modify, any duty, obligation or
liability of Debtor under any of the Collateral, or under any transaction
related thereto.
ARTICLE II
REPRESENTATIONS, WARRANTIES AND COVENANTS
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Section 2.01. Certain Representations and Warranties. The Debtor
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represents and warrants to Secured Party as follows:
(a) The Debtor is and will be the lawful owner of good and
marketable title to all of the Collateral, free of all liens and claims
whatsoever, other than the security interest hereunder, and no presently
effective Uniform Commercial Code Financing Statement (as defined by the
Commercial Code referred to below) covering any of the Collateral is on file in
any public office.
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(b) The execution and delivery of this Agreement and the
performance by the Debtor of its obligations hereunder have been duly authorized
by all necessary corporate action, and do not and will not contravene or
conflict with any provision of law or of the charter or bylaws of the Debtor or
of any agreement binding upon the Debtor, and this Agreement is a legal, valid
and binding obligation of the Debtor, enforceable in accordance with its terms,
except as such enforcement may be limited by bankruptcy, insolvency and other
laws of general application relating to or affecting the enforcement of
creditors' rights.
(c) This Agreement creates a first priority security interest in
the Collateral subject only to ECHC Permitted Encumbrances (as defined in the
Credit Agreement).
Section 2.02. Maintenance of Collateral. Except to the extent that
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any of the following would be prohibited under, or would constitute a violation
of, the terms and conditions of the Credit Agreement, Debtor agrees: (i) to
properly care for and keep the Collateral in good condition and repair; (ii) not
to remove, demolish or substantially alter the Vessels, except upon the prior
written consent of Secured Party; (iii) not to commit or permit any waste or
deterioration of the Collateral (ordinary wear and tear, casualty and
condemnation excepted); (iv) not to commit, suffer or permit any act to be done,
or condition to exist, in connection with any of said Collateral in material
violation of any law, covenant, condition or restriction now, or hereafter,
affecting said Collateral (v) to perform all obligations which it may have under
the Collateral; and (vi) 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 Collateral, may be reasonably necessary to maintain and preserve
its value, the specific enumerations herein not excluding the general.
Section 2.03. Insurance. During the continuance of this Agreement,
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Debtor 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 Secured Party, 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
Collateral shall be: (i) paid directly to Secured Party and retained by Secured
Party or released to Debtor by Secured Party; or (ii) paid directly to Debtor;
all in accordance with Section 8.02 of the Credit Agreement. Nothing
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contained in this Agreement shall be deemed to excuse Debtor from restoring,
repairing and maintaining the Collateral, 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 Collateral can
be restored to the same condition and character as existed prior to such damage
or destruction.
Section 2.04. Taxes and Assessments. Debtor shall pay all taxes,
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assessments and other governmental charges levies affecting the Collateral, 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.
Section 2.05. Eminent Domain. Any award of damages in connection
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with any condemnation or similar actions in regard to the Collateral, or any
part thereof, shall be: (i) paid directly to Secured Party and shall be
retained by Secured Party or released to Debtor by Secured Party; or (ii) paid
directly to Debtor; all in accordance with Section 8.02 of the Credit Agreement.
Section 2.06. Due on Sale. If Debtor shall be voluntarily, or
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involuntarily, divested of title or possession of any Collateral, 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
Collateral, 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 Secured Party, and upon the giving
of any notice which may be required under the Credit Agreement, immediately
become due and payable.
Section 2.07. Preservation of Rights. Debtor shall, at its own
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expense, protect, warrant and defend forever its rights in the Collateral, as
represented in Section 2.01 (and the rights of the Secured Party therein),
against the claims and demands of all persons whomsoever.
Section 2.08. Other Assurances. Debtor shall execute and deliver to
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Secured Party all such financing statements and
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other instruments and documents, each in a form and substance which is
satisfactory to Secured Party, and shall do and accomplish such other acts as
Secured Party may, from time to time, deem necessary or advisable to provide
further assurances of, and where applicable, to fully perfect, the rights and
security interests that are granted hereunder or to carry out or facilitate the
intended purpose of this Agreement. With respect to any Collateral consisting of
certificated securities, instruments, documents, investment property,
certificates of title or the like, as to which Secured Party's security interest
need be perfected by, or the priority thereof need be assured by, possession or
control of such Collateral, Debtor will upon demand of Secured Party deliver
possession of same in pledge to Secured Party (except to the extent that such
Collateral is not capable of being reduced to possession, in which case Debtor
shall enter into a control agreement with the custodian of such collateral
containing sufficient provisions, for the benefit of Secured Party, in order to
provide for perfection and first priority of a security interest in favor of
Secured Party with respect to such Collateral).
Section 2.09. Maintenance of Name, etc. Debtor will not change its
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name, identity or structure (collectively an "Identity Change") in any manner
which might make any financing or continuation statement filed in respect of the
Collateral seriously misleading within the meaning of Section 9-402(7) (or any
other then applicable provision) of the Uniform Commercial Code-Secured
Transactions, as enacted in the State of Indiana pursuant to IC 26-1-9 (as it
may hereafter be amended or recodified, the "Commercial Code") unless: (i) such
Identity Change is permissible under the Credit Agreement; and (ii) Debtor shall
have given the Secured Party at least thirty (30) days' prior written notice
thereof.
Section 2.10. Maintenance of Office. Debtor shall at all times
---------------------
maintain its chief executive office within the State of Indiana.
Section 2.11. Records. At its own cost and expense, Debtor shall:
-------
(i) keep and maintain satisfactory and complete records pertaining to the
Collateral in such detail, form and scope as Secured Party shall require,
consistent with Secured Party's interests hereunder; and (ii) at any time, and
from time to time, at Secured Party's request, mark the Collateral and/or
Debtor's ledger cards, books of account and other records relating to the
Collateral with appropriate notations satisfactory to Secured Party disclosing
that they are subject to Secured Party's security interests hereunder. For the
Secured Party's further security,
14
Debtor agrees that Secured Party shall have a special property interest in all
of Debtor's books and records which pertain to the Collateral (including books
and records which are maintained in a form for use by computers or data
processing machines). Upon the occurrence and during the continuation of any
Event of Default (as defined by the Credit Agreement), Debtor shall deliver and
turn over any such books and records to Secured Party or its representative at
any time upon demand of Secured Party. At any time and from time to time,
whether or not any Event of Default has occurred, but upon reasonable notice
from Secured party, Debtor shall permit any representative of Secured Party to
inspect such books and records and shall provide photocopies thereof to Secured
Party.
Section 2.12. No Negotiable Documents. Debtor shall not deposit any
-----------------------
Collateral in exchange for a negotiable Document of Title.
ARTICLE III
SECURED PARTY'S RIGHTS
----------------------
REGARDING COLLATERAL
--------------------
Section 3.01. General Rights. At any time, and from time to time,
--------------
without notice or demand (except as otherwise set forth herein), and whether or
not an Event of Default has occurred, Secured Party may take any of the
following actions to the extent that such actions may be necessary or desirable
to protect the security hereunder:
(a) Enter upon any premises on which Collateral is situated and
examine the same.
(b) At the expense of Debtor, perform any obligation of Debtor
under this Agreement or under any of the Collateral.
(c) Where applicable: (i) notify obligors on the Collateral
that the Collateral has been pledged and assigned to Secured Party; (ii) request
from obligors under the Collateral, in the name of Debtor or in the name of
Secured Party, information concerning the Collateral and the amounts owing
thereof; and (iii) cause the Collateral to be registered in the name of Secured
Party, as legal holder.
(d) Secured Party shall at all reasonable times, and on
reasonable notice, have full access to and the right to
15
audit any and all of Debtor's books and records pertaining to the Collateral,
and to confirm and verify the value of the Collateral and to do whatever else
Secured Party reasonably may deem necessary or desirable to protect its
interests.
Any of the foregoing actions which are undertaken by Secured Party shall be at
the expense of Debtor. However, Secured Party shall be under no duty or
obligation whatsoever to take any of such actions or to take any other action to
preserve, maintain or protect, the Collateral or any of it, or to preserve any
rights of or against any prior or other parties in connection with the
Collateral, to exercise any voting rights or managerial rights with respect to
any Collateral, whether or not an Event of Default shall have occurred, or to
make or give any presentments, demands for performance, notices of non-
performance, protests, notices of protests, notices of dishonor or notices of
any other nature whatsoever in connection with the Collateral or the Secured
Obligations.
Section 3.02. Collections on the Collateral.
-----------------------------
(a) Notwithstanding the security interest in the Collateral
which is granted pursuant to Section 1.01 hereof, and except as otherwise
provided hereunder or in any Loan Document, Debtor shall have the right to use
and to continue to make collections on and receive any payments which may be
made to, or for the benefit of, Debtor under any of the Collateral so long as no
Event of Default shall have occurred and be continuing.
(b) Upon the occurrence and during the continuance of an Event
of Default, at the option of Secured Party, and except as prohibited by
applicable law, Debtor's right to make collections on and receive dividends and
other proceeds of the Collateral and to use or dispose of such collections and
proceeds shall terminate, and any and all dividends, proceeds and collections,
including all partial or total prepayments, then held or thereafter received on
or on account of the Collateral will be held or received by Debtor in trust for
Secured Party and immediately delivered in kind to Secured Party.
(c) Any remittance received by Debtor from any Person shall be
presumed to relate to the Collateral and to be subject to the security interests
which are granted to Secured Party hereunder.
(d) Upon the occurrence and during the continuance of an Event
of Default, Secured Party shall have the right at all
16
times to receive, issue receipt for, endorse, assign, deposit and deliver, in
the name of Secured Party or in the name of Debtor, any and all checks, notes,
drafts and other instruments for the payment of money constituting proceeds of
or otherwise relating to the Collateral; and Debtor hereby authorizes Secured
Party to affix, by facsimile signature or otherwise, the general or special
endorsement of Debtor, in such manner as Secured Party shall deem advisable, to
any such instrument in the event the same has been delivered to or obtained by
Secured Party without appropriate endorsement, and Secured Party and any
collection bank are hereby authorized to consider such endorsement to be a
sufficient, valid and effective endorsement by Debtor, to the same extent as
though it were manually executed by the duly authorized officer of Debtor,
regardless of by whom or under what circumstances or by what authority such
facsimile signature or other endorsement actually is affixed, without duty of
inquiry or responsibility as to such matters, and Debtor hereby expressly waives
demand, presentment, protest and notice of protest or dishonor and all other
notices of every kind and nature with respect to any such instrument.
Section 3.03. Possession of Collateral by Secured Party.
-----------------------------------------
(a) All the Collateral now, heretofore or hereafter delivered to
Secured Party shall be held by Secured Party in its possession, custody and
control. Any or all of the Collateral delivered to Secured Party, which is held
in an account, may be held in an interest bearing or non-interest bearing
account, in Secured Party's sole and absolute discretion, and Secured Party may,
in its discretion, apply any such interest to payment of the Secured
Obligations. Nothing herein shall obligate Secured Party to invest any
Collateral or obtain any particular return thereon.
(b) Upon the occurrence and during the continuance of an Event
of Default, whenever any of the Collateral is in Secured Party's possession,
custody or control, Secured Party may use, operate and consume the Collateral,
whether for the purpose of preserving and/or protecting the Collateral, or for
the purpose of performing any of Debtor's obligations with respect thereto, or
otherwise. Secured Party may at any time deliver or redeliver the Collateral or
any part thereof to Debtor, and the receipt of any of the same by Debtor shall
be complete and full acquittance for the Collateral so delivered, and Secured
Party thereafter shall be discharged from any liability or responsibility
therefor.
(c) So long as Secured Party exercises reasonable care with
respect to any Collateral in its possession, custody or
17
control, Secured Party shall have no liability for any loss of or damage to such
Collateral, and in no event shall Secured Party have liability for any
diminution in value of Collateral occasioned by economic or market conditions or
events. Secured Party shall be deemed to have exercised reasonable care within
the meaning of the preceding sentence if the Collateral in the possession,
custody or control of Secured Party is accorded treatment substantially equal to
that which Secured Party accords its own property, it being understood that
Secured Party shall not have any responsibility for (a) ascertaining or taking
action with respect to calls, conversions, exchanges, maturities, tenders or
other matters relating to any Collateral, whether or not Secured Party has or is
deemed to have knowledge of such matters, or (b) taking any necessary steps to
preserve rights against any Person with respect to any Collateral.
Section 3.04. Unilateral Filings. In addition to any other actions
------------------
which Secured Party may be entitled to take hereunder, or under the Commercial
Code, Secured Party is expressly authorized to execute and file such financing
statements and continuation statements as it may deem necessary or appropriate
to evidence, maintain, perfect and/or continue the security interest(s) granted
hereunder, all without notice to, or the signature of, Debtor.
ARTICLE IV
DEFAULT
-------
Section 4.01. Remedies. Upon the occurrence and during the
--------
continuance of an Event of Default (as defined in the Credit Agreement), Secured
Party shall have, in any jurisdiction where enforcement hereof is sought: (i) in
addition to all other rights and remedies that Secured Party may have under
applicable law, in equity, under this Agreement or under any other Loan
Document; and (ii) in addition to all rights and remedies of a Secured Party
under the Commercial Code; the following rights and remedies, all of which may
be exercised with or without notice to Debtor and without affecting the
obligations of Debtor hereunder or under any other Loan Document, or the
enforceability of the liens and security interests created hereby:
(a) To foreclose the liens and security interests created
hereunder or under any other agreement relating to any Collateral by any
available judicial procedure or without judicial process;
18
(b) To enter any premises where any Collateral may be located
for the purpose of securing, protecting, inventorying, appraising, inspecting,
repairing, preserving, storing, preparing, processing, taking possession of or
removing the same;
(c) To sell, assign, lease or otherwise dispose of any
Collateral or any part thereof either at public or private sale or at any
broker's board, in lot or in bulk, for cash, on credit or otherwise, with or
without representation or warranties and upon such terms as shall be acceptable
to Secured Party;
(d) To notify obligors on the Collateral that the Collateral has
been assigned to Secured Party and that all payments thereon are to be made
directly and exclusively to Secured Party;
(e) To collect by legal proceedings or otherwise all dividends,
distributions, interest, principal or other sums now or hereafter payable upon
or on account of the Collateral;
(f) To enter into any extension, reorganization, deposit, merger
or consolidation agreement, or any other agreement relating to or affecting the
Collateral, and in connection therewith Secured Party may deposit or surrender
control of the Collateral and/or accept other property in exchange for the
Collateral;
(g) To settle, compromise or release, on terms acceptable to
Secured Party, in whole or in part, any amounts owing on the Collateral and/or
disputes with respect thereto;
(h) To amend the terms of, extend the time of payment, make
allowances and adjustments to, and issue credits in connection with, the
Collateral in the name of Secured Party or in the name of Debtor;
(i) To enforce payment and prosecute any action or proceeding
with respect to any or all of the Collateral and take or bring, in the name of
Secured Party or in the name of Debtor, any and all steps, actions, suits or
proceedings deemed by Secured Party necessary or desirable to effect collection
of or to realize upon the Collateral, including any judicial or nonjudicial
foreclosure thereof or thereon, and Debtor specifically consents to any
nonjudicial foreclosure of any or all of the Collateral or any other action
taken by Secured Party which may release any obligor from personal liability on
any of the Collateral, and Debtor waives any right not expressly provided for in
this Agreement to receive
19
notice of any public or private judicial or nonjudicial sale or foreclosure of
any security or any of the Collateral; and any money or other property received
by Secured Party in exchange for or on account of the Collateral, whether
representing collections or proceeds of Collateral (and whether resulting from
voluntary payments or foreclosure proceedings or other legal action taken by
Secured Party or Debtor) may be applied to the Secured Obligations by Secured
Party (without notice to Debtor) in such order and manner as Secured Party in
its sole discretion shall determine, unless otherwise provided by the Credit
Agreement or by any other Loan Documents;
(j) To insure, process and preserve the Collateral;
(k) To exercise all rights, remedies, powers or privileges
provided under any of the Loan Documents or the Collateral;
(l) To remove, from any premises where the same may be
located,the Collateral and any and all documents, instruments, files and
records, and any receptacles and cabinets containing the same, relating to the
Collateral, and Secured Party may, at the cost and expense of Debtor, use such
of Debtor's supplies, equipment, facilities and space at Debtor's places of
business as may be necessary or appropriate to properly administer, process,
store,control, prepare for sale or disposition and/or sell or dispose of the
Collateral or to properly administer and control the handling of collections and
realizations thereon, and Secured Party shall be deemed to have a rent-free
tenancy of any premises of Debtor for such purposes and for such periods of time
as reasonably required by Secured Party;
(m) To receive, open and dispose of all mail addressed to Debtor
and notify postal authorities to change the address for delivery thereof to such
address as Secured Party may designate; provided that Secured Party agrees that
it will promptly deliver over to Debtor such opened mail as does not relate to
the Collateral; and
(n) To exercise all other rights, powers, privileges and
remedies of an owner of the Collateral; all at Secured Party's sole option and
as Secured Party in its sole discretion may deem advisable. Debtor will, at
Secured Party's request, assemble the Collateral and make it available to
Secured Party at places which Secured Party may designate, whether at the
premises of Debtor or elsewhere, and will make available to Secured
20
Party, free of cost, all premises, equipment and facilities of Debtor for the
purpose of Secured Party's taking possession of the Collateral or storing same
or removing or putting the Collateral in salable form or selling or disposing of
same.
Section 4.02. Possession. Upon the occurrence and during the
----------
continuance of an Event of Default, Secured Party also shall have the right,
without notice or demand, either in person, by agent or by a receiver to be
appointed by a court of competent jurisdiction (and Debtor hereby expressly
consents upon the occurrence and during the continuance of an Event of Default
to the appointment of such a receiver), and without regard to the adequacy of
any security for the Secured Obligations, to take possession of the Collateral
or any part thereof and to collect and receive the rents, issues, profits,
income and proceeds thereof. Secured Party's taking possession of the
Collateral shall not cure or waive any Event of Default or notice thereof or
invalidate any act done pursuant to such notice. The rights, remedies and
powers of any receiver appointed by a court shall be as ordered by said court.
Section 4.03. Conduct of Sale.
---------------
(a) Any public or private sale or other disposition of the
Collateral may be held at any office of Secured Party, or at Debtor's place of
business, or at any other place permitted by applicable law, and without the
necessity of the Collateral being within the view of the prospective purchasers.
Secured Party may direct the order and manner of sale of the Collateral, or
portions thereof, as it in its sole and absolute discretion may determine, and
Debtor expressly waives any right to direct the order and manner of sale of any
Collateral. Secured Party or any Person on Secured Party's behalf may bid and
purchase at any such sale or other disposition. The net cash proceeds resulting
from the collection, liquidation, sale, lease or other disposition of the
Collateral shall be applied, first, to the expenses (including reasonable
attorneys' fees and disbursements) of retaking, holding, storing, processing and
preparing for sale or lease,selling, leasing, collecting, liquidating and the
like, and then to the satisfaction of the Secured Obligations in such order as
shall be determined by Secured Party in its sole and absolute discretion, all
unless otherwise provided by the Credit Agreement or any other Loan Documents.
Debtor and any other Person then obligated therefor shall pay to Secured Party
on demand any deficiency with regard thereto which may remain after such sale,
disposition, collection or liquidation of the Collateral.
21
(b) Unless the Collateral is perishable or threatens to decline
speedily in value or is of a type customarily sold on a recognized market,
Secured Party will send or otherwise make available to Debtor reasonable notice
of the time and place of any public sale thereof or of the time at, or after,
which any private sale thereof is to be made. The requirement of sending
reasonable notice conclusively shall be met if such notice is mailed, first
class mail, postage prepaid, to Debtor at its address set forth in the Credit
Agreement, or delivered or otherwise sent to Debtor, at least five (5) days
before the date of the sale. Debtor expressly waives any right to receive notice
of any public or private sale of any Collateral or other security for the
Secured Obligations except as expressly provided for in this paragraph.
(c) With respect to any Collateral consisting of securities,
partnership interests, joint venture interests, other investments or the like,
and whether or not any of such Collateral has been effectively registered under
the Securities Act of 1933 or other applicable laws, Secured Party may, in its
sole and absolute discretion, sell all or any part of such Collateral at private
sale in such manner and under such circumstances as Secured Party may deem
necessary or advisable in order that the sale may be lawfully conducted.
Without limiting the foregoing, Secured Party may (i) approach and negotiate
with a limited number of potential purchasers; and (ii) restrict the prospective
bidders or purchasers to persons who will represent and agree that they are
purchasing such Collateral for their own account for investment and not with a
view to the distribution or resale thereof. In the event that any such
Collateral is sold at private sale, Debtor agrees that if such Collateral is
sold for a price which Secured Party in good faith believes to be reasonable
under the circumstances then existing, then: (aa) the sale shall be deemed to
be commercially reasonable in all respects; (bb) the credit against the Secured
Obligations, to which Debtor may be entitled, shall not exceed the purchase
price; and (cc) Secured Party shall not incur any liability or responsibility to
Debtor in connection therewith, notwithstanding the possibility that a
substantially higher price might have been realized at a public sale. Debtor
recognizes that a ready market may not exist for such Collateral if it is not
regularly traded on a recognized securities exchange, and that a sale by Secured
Party of any such Collateral for an amount substantially less than a pro rata
share of the fair market value of the issuer's assets minus liabilities may be
commercially reasonable in view of the difficulties that may be encountered in
attempting to sell a large amount of such Collateral or Collateral that is
privately traded.
22
(d) Upon consummation of any sale of Collateral hereunder,
Secured Party shall have the right to assign, transfer and deliver to the
purchaser or purchasers thereof the Collateral so sold. Each such purchaser at
any such sale shall hold the Collateral so sold absolutely free from any claim
or right upon the part of Debtor or any other Person except a third party
lienholder permitted under the Loan Documents, and Debtor hereby waives (to the
extent permitted by applicable laws) all rights of redemption, stay and
appraisal which it now has or may at any time in the future have under any rule
of law or statute now existing or hereafter enacted. If the sale of all or any
part of the Collateral is made on credit or for future delivery, Secured Party
shall not be required to apply any portion of the sales price to the Secured
Obligations until such amount actually is received by Secured Party, and any
Collateral so sold may be retained by Secured Party until the sale price is paid
in full by the purchaser or purchasers thereof. Secured Party shall not incur
any liability in case any such purchaser or purchasers shall fail to pay for the
Collateral so sold, and, in case of any such failure, the Collateral may be sold
again.
ARTICLE V
MISCELLANEOUS
-------------
Section 5.01. Attorney-in-Fact. Debtor hereby irrevocably nominates
----------------
and appoints Secured Party as its attorney-in-fact for the following purposes:
(a) to do all acts and things which Secured Party may deem necessary or
advisable to perfect, and continue perfected, the security interests created by
this Agreement and, upon the occurrence and during the continuance of an Event
of Default, to preserve, process, develop, maintain and protect the Collateral;
(b) upon the occurrence and during the continuance of an Event of Default, to do
any and every act which Debtor is obligated to do under this Agreement, at the
expense of the Debtor, and without any obligation to do so; (c) to prepare,
sign, file and/or record, for Debtor, in the name of the Debtor, any financing
statement, application for registration, or like paper, and to take any other
action deemed by Secured Party necessary or desirable in order to perfect or
maintain perfected the security interests granted hereby; and (d) upon the
occurrence and during the continuance of an Event of Default, to execute any and
all papers and instruments and do all other things necessary or desirable to
preserve and protect the Collateral and to protect Secured Party's security
interests therein; provided, however, that Secured Party shall be under no
obligation whatsoever to take any of the foregoing actions, and, absent bad
faith or actual malice,
23
Secured Party shall have no liability or responsibility for any act taken or
omission with respect thereto. Debtor hereby consents and agrees that, where
applicable, the issuers of, the obligors on, or the parties to any of the
Collateral, shall be entitled to accept the provisions of this Agreement as
conclusive evidence of the right of Secured Party to effect any transfer or
exercise any right hereunder or with respect to any such Collateral,
notwithstanding any other notice or direction to the contrary heretofore or
hereafter given by Debtor or any other Person to such issuers, obligors or
parties.
Section 5.02. Costs and Expenses. Debtor agrees to pay to Secured
------------------
Party all costs and expenses (including, without limitation, reasonable
attorneys' fees and disbursements) incurred by Secured Party in the enforcement
or attempted enforcement of this Agreement, whether or not an action is filed in
connection therewith, and in connection with any waiver or amendment of any term
or provision hereof. All advances, charges, costs and expenses, including
reasonable attorneys' fees and disbursements, incurred or paid by Secured Party
in exercising any right, privilege, power or remedy conferred by this Agreement
(including, without limitation, the right to perform any Secured Obligation of
Debtor under the Loan Documents), or in the enforcement or attempted enforcement
thereof, shall be secured hereby and shall become a part of the Secured
Obligation and shall be paid to the Secured Party by Debtor, immediately upon
demand, together with interest thereon at the rate(s) provided for under the
Credit Agreement.
Section 5.03. Statute of Limitations and Other Laws. Until the
-------------------------------------
Secured Obligations shall have been paid and performed in full, and all
obligations of the Banks, or any of them, to advance funds under the Bank
Facilities, have been unconditionally and indefeasibly terminated and Bank
Facility Termination shall have occurred, the power of sale and all other
rights, remedies, and privileges which are granted hereunder shall continue to
exist and may be exercised by Secured Party at any time and from time to time
irrespective of the fact that any of the Secured Obligations may have become
barred by any statute of limitations. Debtor expressly waives the benefit of
any and all statutes of limitation, and any and all laws providing for exemption
of property from execution or for valuation and appraisal upon foreclosure, to
the maximum extent permitted by applicable law.
Section 5.04. Other Agreements. The rights and remedies of Secured
----------------
Party upon the occurrence and continuance of an Event of
24
Default (whether such rights and remedies are conferred by statute, by rule of
law, by this Agreement, the Loan Documents or otherwise) may be exercised by
Secured Party, in the sole discretion of Secured Party, either alternatively,
concurrently, or consecutively in any order. The exercise by Secured Party 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 which may be
available to Secured Party.
Section 5.05. Understandings With Respect to Waivers and Consents.
---------------------------------------------------
Debtor warrants and agrees that each of the waivers and consents set forth
herein are made after consultation with legal counsel and with full knowledge of
their significance and consequences, with the understanding that events giving
rise to any defense or right waived may diminish, destroy or otherwise adversely
affect rights which Debtor otherwise may have against Secured Party or others,
or with respect to the Collateral, and that, under the circumstances, the
waivers and consents herein given are reasonable and not contrary to public
policy or law. If any of the waivers or consents herein are determined to be
contrary to any applicable law or public policy, such waivers and consents shall
be effective to the maximum extent permitted by law.
Section 5.06. Release of Debtor. This Agreement and all Secured
-----------------
Obligations of Debtor hereunder shall be released when all Secured Obligations
have been paid in full in cash or otherwise performed in full and when all
obligations which the Banks, or any of them, may have to advance funds under the
Bank Facilities, have been unconditionally and indefeasibly terminated and Bank
Facility Termination shall have occurred. Upon such release of Debtor's Secured
Obligations hereunder, Secured Party shall return any pledged Collateral to
Debtor, or to the Person or Persons legally entitled thereto, and shall endorse,
execute, deliver, record and file all instruments and documents, and do all
other acts and things, reasonably required for the return of the Collateral to
Debtor, or to the Person or Persons legally entitled thereto, and to evidence or
document the release of Secured Party's interests arising under this Agreement,
all as reasonably requested by, and at the sole expense of, Debtor.
Section 5.07. Indemnity. Neither Secured Party nor any of the Banks
---------
shall be obligated to perform or discharge any obligation or duty to be
performed or discharged by Debtor with respect to the Collateral or hereunder.
Debtor hereby agrees to indemnify Secured Party and each of the Banks
(collectively, the "Indemnified Parties") for, and to save them harmless from,
any and
25
all liability arising from the Collateral or this Agreement. This Agreement
shall not place responsibility for the control, care, management, operation or
repair of the Collateral upon any of the Indemnified Parties; nor shall this
Agreement cause any of the Indemnified Parties to be responsible or liable for
any negligence in the management, operation, upkeep, repair or control of the
Collateral which results in loss, injury or death to any tenant, guest,
licensee, employee or stranger (provided that this Section 5.07 shall not act to
relieve any Indemnified Party from liability which results from such Indemnified
Party's own gross negligence or willful misconduct).
Section 5.08 Governing Law. This Agreement shall be governed by,
-------------
and shall be construed and enforced in accordance with, the internal laws of the
State of Indiana without regard to conflict of law principles.
Section 5.09. Counterparts. This Agreement may be executed in any
------------
number of separate counterparts with the same effect as if the signatures hereto
and hereby were upon the same instrument. All such counterparts shall together
constitute one and the same document.
26
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first written above.
DEBTOR: SECURED PARTY:
EMPRESS CASINO HAMMOND WELLS FARGO BANK, National Association
CORPORATION, an Indiana
corporation
By /s/ Joseph L. Brady,
-------------------------
Joseph L. Brady,
By /s/ Peter A. Ferro, Jr. Senior Vice President
-----------------------------
Name Peter A. Ferro, Jr.
----------------------------
Title Chief Executive Officer
---------------------------
STATE OF ILLINOIS )
) ss
COUNTY OF COOK )
I, the undersigned, a Notary Public in and for said County, in said
State, hereby certify that Peter A. Ferro, Jr., whose name as Chief Executive
Officer of EMPRESS CASINO HAMMOND CORPORATION, an Indiana corporation, is signed
to the foregoing instrument, and who is known to me, acknowledged before me on
this day that, being informed of the contents of the instrument, he/she, as such
officer and with full authority, executed the same voluntarily for and as the
act of said corporation.
Given under my hand and Official Seal this 17th day of June, 1998.
/s/ Gina A. Bilotto
-------------------------------
[Seal] Notary Public
My commission expires: April 24, 1999
[Notary Seal of
Gina Bilotto] GINA BILOTTO
--------------------------------
(Printed Name)
Notary Public in and for the
State of Illinois
27
STATE OF ILLINOIS )
) ss
COUNTY OF COOK )
I, the undersigned, a Notary Public in and for said County, in said
State, hereby certify that JOSEPH L. BRADY, whose name as Senior Vice President
of WELLS FARGO BANK, National Association, a national banking association, is
signed to the foregoing instrument, and who is known to me, acknowledged before
me on this day that, being informed of the contents of the instrument, he, as
such officer and with full authority, executed the same voluntarily for and as
the act of said national banking association.
Given under my hand and Official Seal this 17th day of June, 1998 .
/s/ Joanne Bruen
--------------------------------
[Seal] Notary Public
My commission expires: 10/14/00
JOANNE BRUEN
--------------------------------
(Printed Name)
Notary Public in and for the
State of Illinois
28
PARCEL 1
--------
A PART OF THE NORTHEAST QUARTER OF SECTION 1, TOWNSHIP 37 NORTH, RANGE 10 WEST
OF THE SECOND PRINCIPAL MERIDIAN LOCATED IN NORTH TOWNSHIP, LAKE COUNTY,
INDIANA, BEING BOUNDED AS FOLLOWS:
COMMENCING AT THE SOUTHEAST CORNER OF THE SOUTHEAST QUARTER OF SECTION 1,
TOWNSHIP 37 NORTH, RANGE 10 WEST OF THE SECOND PRINCIPAL MERIDIAN; THENCE NORTH
00 DEGREES 00 MINUTES 00 SECONDS (ASSUMED BEARING);
2,180.44 FEET ALONG THE EAST LINE OF SAID SECTION 1 TO ITS POINTS OF
INTERSECTION WITH THE ORIGINAL CENTERLINE OF THE 80-FOOT-WIDE RIGHT-OF-WAY OF
INDIANAPOLIS BOULEVARD; THENCE NORTH 39 DEGREES 07 MINUTES 01 SECOND WEST
2,689.03 FEET ALONG SAID ORIGINAL CENTERLINE OF THE 80-FOOT-WIDE RIGHT-OF-WAY OF
INDIANAPOLIS BOULEVARD TO ITS POINT OF INTERSECTION WITH THE CENTERLINE OF 112TH
STREET (80-FOOT-WIDE RIGHT-OF-WAY); THENCE SOUTH 50 DEGREES 52 MINUTES 59
SECONDS WEST 190.00 FEET ALONG THE CENTERLINE OF 112TH STREET; THENCE SOUTH 34
DEGREES 15 MINUTES 02 SECONDS WEST 497.85 FEET ALONG THE CENTERLINE OF 112TH
STREET; THENCE NORTH 55 DEGREES 44 MINUTES 58 SECONDS WEST 40.00 FEET
PERPENDICULAR TO THE CENTERLINE OF 112TH STREET TO THE SOUTHEASTERN CORNER OF
THE 1.419 ACRE TRACT OF LAND DESCRIBED IN THE WARRANTY DEED RECORDED AS
INSTRUMENT NO. 507068 ON DECEMBER 14, 1978, IN THE OFFICE OF THE RECORDER OF
LAKE COUNTY, INDIANA, TO A POINT ON THE BOUNDARY (TERMINUS OF THE THIRD COURSE)
OF THE 4.793 ACRE TRACT OF LAND DESCRIBED IN THE SPECIAL WARRANTY DEED RECORDED
AS INSTRUMENT NO.94021860 ON MARCH 23, 1994 IN SAID RECORDER'S OFFICE, AND TO
THE POINT OF BEGINNING OF THIS DESCRIPTION; THENCE SOUTH 34 DEGREES 15 MINUTES
02 SECONDS WEST 205.33 FEET ALONG THE NORTHWESTERN RIGHT-OF-WAY LINE OF 112TH
STREET; THENCE NORTH 89 DEGREES 51 MINUTES 46 SECONDS WEST 336.05 FEET ALONG THE
NORTHERN RIGHT-OF-WAY LINE OF 112TH STREET TO THE EASTERN RIGHT-OF-WAY LINE OF
5TH AVENUE (66-FOOT-WIDE RIGHT-OF-WAY); THENCE NORTH 00 DEGREES 04 MINUTES 19
SECONDS EAST 1,127.57 FEET ALONG THE EASTERN RIGHT-OF-WAY LINE OF 5TH AVENUE TO
A POINT BEING SOUTH 00 DEGREES 04 MINUTES 19 SECONDS WEST 120.00 FEET FROM THE
SOUTHEASTERN CORNER OF THE INTERSECTION OF 5TH AVENUE AND 110TH STREET (66-FOOT-
WIDE RIGHT-OF-WAY); THENCE SOUTH 89 DEGREES 37 MINUTES 25 SECONDS EAST 172.00
FEET; THENCE NORTH 00 DEGREES 04 MINUTES 19 SECONDS EAST 72.00 FEET; THENCE
SOUTH 89 DEGREES 37 MINUTES 25 SECONDS EAST 218.00 FEET; THENCE NORTH 00 DEGREES
04 MINUTES 19 SECONDS EAST 57.74 FEET TO THE SOUTHWESTERN RIGHT-OF-WAY LINE OF
INDIANAPOLIS BOULEVARD; THENCE SOUTH 39 DEGREES 07 MINUTES 01 SECOND EAST 180.04
FEET ALONG THE SOUTHWESTERN RIGHT-OF-WAY LINE OF INDIANAPOLIS BOULEVARD TO THE
NORTHWESTERN BOUNDARY OF SAID 4.793 ACRE TRACT OF LAND, THE NEXT SIX (6) COURSES
ARE ALONG THE BOUNDARY OF SAID 4.793 ACRE TRACT OF LAND;
1) THENCE SOUTH 50 DEGREES 43 MINUTES 23 SECONDS WEST 135.68 FEET (MEASURED,
155.27 FEET DEEDED);
EXHIBIT A, PAGE 1 OF 14
2) THENCE SOUTH 36 DEGREES 14 MINUTES 30 SECONDS WEST 136.32 FEET;
3) THENCE SOUTH 11 DEGREES 49 MINUTES 05 SECONDS WEST 132.22 FEET;
4) THENCE SOUTH 04 DEGREES 06 MINUTES 03 SECONDS EAST 125.93 FEET;
5) THENCE SOUTH 24 DEGREES 13 MINUTES 40 SECONDS EAST 122.46 FEET TO A POINT
ON A NON-TANGENT CURVE CONCAVE TO THE NORTHEAST, SAID POINT BEING SOUTH 60
DEGREES 23 MINUTES 05 SECONDS WEST 346.48 FEET FROM THE RADIUS POINT OF SAID
CURVE;
6) THENCE SOUTHEASTERLY 308.59 FEET ALONG SAID CURVE TO A POINT BEING SOUTH 09
DEGREES 21 MINUTES 21 SECONDS WEST 346.48 FEET FROM THE RADIUS POINT OF SAID
CURVE;
7) THENCE SOUTH 34 DEGREES 15 MINUTES 02 SECONDS WEST 257.63 FEET TO THE POINT
OF BEGINNING.
EXHIBIT A, PAGE 2 OF 14
LAND DESCRIPTION
Redevelopment Commission Sublease
Parcel 1A
version 1
15 MAY 96
A part of the Northwest Quarter of Section 6, Township 37 North, Range 9 West
located in North Township, Lake County, Indiana being bounded as follows:
Commencing at the Southeast Corner of the Southeast Quarter of Section 1,
Township 37 North, Range 10 West; thence North 01 degree 01 minute 03 seconds
West (assumed bearing) 4,209.68 feet along the East Line of said Section 1 and
along the West Line of Section 6, Township 37 North, Range 9 West; thence South
41 degrees 13 minutes 34 seconds East 61.96 feet; thence South 41 degrees 13
minutes 34 seconds East 90.30 feet to the point of curvature of a curve to the
left, said point of curvature being South 48 degrees 46 minutes 26 seconds West
2,814.93 feet from the radius point of said curve; thence southeasterly 229.77
feet along said curve to a point being South 44 degrees 05 minutes 50 seconds
West 2,814.93 feet from the radius point of said curve; thence North 35 degrees
17 minutes 10 seconds East 17.84 feet to the POINT OF BEGINNING of this
description; thence North 35 degrees 17 minutes 10 seconds East 813.45 feet,
thence North 79 degrees 22 minutes 58 seconds East 71.38 feet thence South 54
degrees 36 minutes 55 seconds East 100.48 feet; thence South 35 degrees 23
minutes 05 seconds West 90.00 feet; thence North 54 degrees 36 minutes 55
seconds West 110.00 feet; thence South 35 degrees 17 minutes 10 seconds West
780.38 feet; thence North 46 degrees 40 minutes 28 seconds West 40.40 feet to
the POINT OF BEGINNING containing 0.995 acres, more or less.
EXHIBIT A, PAGE 3 OF 14
LAND DESCRIPTION
Redevelopment Commission Sublease
Parcel 2
version 1
29 AUG 94
A part of the Northwest Quarter of Section 6, Township 37 North, Range 9 West,
located in North Township, Lake County, Indiana, being bounded as follows:
Commencing at he Southeast Corner of the Southeast Quarter of Section 1,
Township 37 North, Range 10 West; thence North 01 degree 01 minute 03 seconds
West (assumed bearing) 4,209.68 feet along the East Line of said Section 1 and
along the West Line of Section 6, Township 37 North, Range 9 West; thence South
41 degrees 13 minutes 34 seconds East 61.96 feet; thence South 41 degrees 13
minutes 34 seconds East 90.30 feet to the point of curvature of a curve to the
left, said point of curvature being South 48 degrees 46 minutes 26 seconds West
2,814.93 feet from the radius point of said curve; thence southeasterly 229.76
feet along said curve to a point being South 44 degrees 05 minutes 50 seconds
West 2,814.93 feet from the radius point of said curve; thence North 35 degrees
17 minutes 10 seconds East 831.29 feet; thence North 79 degrees 22 minutes 58
seconds East 71.38 feet; thence South 54 degrees 36 minutes 55 seconds East
100.48 feet to the POINT OF BEGINNING of this description; thence continuing
South 54 degrees 36 minutes 55 seconds East 146.67 feet; thence South 35 degrees
16 minutes 41 seconds West 523.46 feet; thence North 54 degrees 35 minutes 11
seconds West 236.35 feet; thence South 35 degrees 15 minutes 53 seconds West
349.92 feet; thence North 46 degrees 40 minutes 28 seconds West 20.88 feet;
thence North 35 degrees 17 minutes 10 seconds East 780.38 feet; thence South 54
degrees 36 minutes 55 seconds East 110.00 feet; thence North 35 degrees 23
minutes 05 seconds East 90.00 feet to the POINT OF BEGINNING, containing 3.024
acres, more or less.
EXHIBIT A, PAGE 4 OF 14
LAND DESCRIPTION
Redevelopment Commission Sublease
Parcel 4
version 2
28 MAY 96
A part of the Northeast Quarter of Section 1, Township 37 North, Range 10 West
and a part of Section 36, Township 38 North, Range 10 West located in North
Township, Lake County, Indiana being bounded as follows:
Commencing at the Southeast Corner of the Southeast Quarter of Section 1,
Township 37 North, Range 10 West; thence North 01 degree 01 minute 03 seconds
West (assumed bearing) 2,195.00 feet along the East Line of said Section 1 to
its point of intersection with the centerline of Indianapolis Boulevard (100
foot wide right-of-way); thence North 40 degrees 07 minutes 55 seconds West
3,007.99 feet along the centerline of Indianapolis Boulevard; thence North 49
degrees 52 minutes 05 seconds East 50.00 feet perpendicular to the centerline of
Indianapolis Boulevard to the northeastern right-of-way line of Indianapolis
Boulevard; thence North 40 degrees 07 minutes 15 seconds West 190.50 feet along
the northeastern right-of-way line of Indianapolis Boulevard; thence North 51
degrees 02 minutes 14 seconds East 290.22 feet; thence South 60 degrees 14
minutes 57 seconds East 49.35 feet; thence North 54 degrees 00 minutes 00
seconds East 528.73 feet to the point of curvature of a curve to the right, said
point of curvature being North 36 degrees 00 minutes 00 seconds West 326.48 feet
from the radius point of said curve; thence northeasterly and easterly 118.22
feet along said curve to the southwestern boundary of the 21.255 acre tract of
land described in the QUITCLAIM DEED recorded as instrument #910181 on April 17,
1991 in the office of the Recorder of Lake County, Indiana, said point being
North 15 degrees 15 minutes 10 seconds West 326.48 feet from the radius point of
said curve, the next seven (7) courses are along the boundary of said 21.255
acre tract of land; 1) thence North 41 degrees 15 minutes 08 seconds West
1,700.29 feet to the POINT OF BEGINNING of this description; 2) thence North 41
degrees 15 minutes 08 seconds West 1,539.62 feet to the point of curvature of a
curve to the right, said point of curvature being South 48 degrees 44 minutes 52
seconds West 24,828.52 feet from the radius point of said curve; 3) thence
northwesterly 281.79 feet along said curve to its point of tangency, said point
of tangency being South 49 degrees 23 minutes 53 seconds West 24,828.52 feet
from the radius point of said curve; 4) thence North 40 degrees 36 minutes 07
seconds West 1,474.75 feet to the Indiana/Illinois State Line; 5) thence North
00 degrees 52 minutes 04 seconds West 138.52 feet along the Indiana/Illinois
State Line; 6) thence South 48 degrees 50 minutes 29 seconds East 279.19 feet;
7) thence South 41 degrees 14 minutes 04 seconds East 2,051.13 feet to the
northwestern corner of the tract of land described in the QUITCLAIM DEED
recorded in Deed Record 1219, page 31 on November 5, 1962 in said Recorder's
office, said corner being on "Eggers' Fence Line"; thence South 87 degrees 40
minutes 04 seconds East 11.27 feet along the northern boundary of said tract of
land which is also along "Eggers' Fence Line"; thence South 41 degrees 12
minutes 09 seconds East 139.21 feet; thence
EXHIBIT A, PAGE 5 OF 14
South 40 degrees 14 minutes 07 seconds East 154.35 feet to a point on a
non-tangent curve concave to the southwest, said point being North 51 degrees 42
minutes 18 seconds East 1,514.88 feet from the radius point of said curve;
thence southeasterly 141.95 feet along said curve to a point being North 57
degrees 04 minutes 25 seconds East 1,514.88 feet from the radius point of said
curve; thence South 30 degrees 59 minutes 10 seconds East 154.35 feet; thence
South 30 degrees 01 minute 09 seconds East 186.88 feet; thence South 30 degrees
59 minutes 24 seconds East 155.62 feet to a point on a non-tangent curve concave
to the northeast, said point being South 57 degrees 04 minutes 25 seconds West
1,539.88 feet from the radius point of said curve; thence southeasterly 143.63
feet to a point being South 51 degrees 43 minutes 47 seconds West 1,539.88 feet
from the radius point of said curve; thence South 48 degrees 44 minutes 52
seconds West 29.89 feet to the POINT OF BEGINNING containing 9.760 acres, more
or less.
ALSO, a part of the Northeast Quarter of Section 1, Township 37 North, Range 10
West and a part of Section 36, Township 38 North, Range 10 West located in North
Township, Lake County Indiana being bounded as follows:
Commencing at the Southeast Corner of the Southeast Quarter of Section 1,
Township 37 North, Range 10 West; thence North 01 degree 01 minute 03 seconds
West (assumed bearing) 2,195.00 feet along the East Line of said Section 1 to
its point of intersection with the centerline of Indianapolis Boulevard (100
foot wide right-of-way); thence North 40 degrees 07 minutes 55 seconds West
3,007.99 feet along the centerline of Indianapolis Boulevard; thence North 49
degrees 52 minutes 05 seconds East 50.00 feet perpendicular to the centerline of
Indianapolis Boulevard to the northeastern right-of-way line of Indianapolis
Boulevard; thence North 40 degrees 07 minutes 55 seconds West 190.50 feet along
the northeastern right-of-way line of Indianapolis Boulevard; thence North 51
degrees 02 minutes 14 seconds East 290.22 feet; thence South 60 degrees 14
minutes 57 seconds East 49.35 feet; thence North 54 degrees 00 minutes 00
seconds East 528.73 feet to the point of curvature of a curve to the right (said
curve hereinafter referred to as "Curve #1), said point of curvature being North
36 degrees 00 minutes 00 seconds West 326.48 feet from the radius point of Curve
#1; thence northeasterly and easterly 176.71 feet along Curve #1 to a point
being North 04 degrees 59 minutes 19 seconds West 326.48 feet from the radius
point of Curve #1 and to the POINT OF BEGINNING of this description; thence
North 41 degrees 10 minutes 39 seconds West 1,372.17 feet to the point of
curvature of a curve to the right, said point of curvature being South 48
degrees 49 minutes 21 seconds West 474.78 feet from the radius point of said
curve; thence northwesterly 58.94 feet along said curve to its point of
tangency, said point of tangency being South 55 degrees 56 minutes 06 seconds
West 474.78 feet from the radius point of said curve; thence North 34 degrees 03
minutes 54 seconds West 45.58 feet to point of curvature of curve to the left,
said point of curvature being North 55 degrees 56 minutes 06 seconds East 729.28
feet from the radius point of said curve; thence northwesterly 90.62 feet along
said curve to its point of tangency, said point of tangency being North 48
degrees 48 minutes 55 seconds East 729.28 feet from the radius point of said
curve; thence North 41 degrees 11 minutes 05 seconds West 8.90 feet; thence
North 40 degrees 12 minutes 29 seconds West 154.34 feet to a point on a non-
EXHIBIT A, PAGE 6 OF 14
tangent curve concave to the northeast, said point being South 51 degrees 45
minutes 03 seconds West 1,500.05 feet from the radius point of said curve;
thence northwesterly 138.44 feet along said curve to a point being South 57
degrees 02 minutes 18 seconds West 1,500.05 from the radius point of said curve;
thence North 31 degrees 00 minutes 10 seconds West 154.34 feet; thence North 30
degrees 01 minute 34 seconds West 170.82 feet to the point of curvature of curve
to the right, said point of curvature being South 59 degrees 58 minutes 26
seconds West 1,420.19 feet from the radius point of said curve; thence
northwesterly and northerly 273.83 feet along said curve to its point of
tangency, said point of tangency being South 71 degrees 01 minute 16 seconds
West 1,420.19 feet from the radius point of said curve; thence North 18 degrees
58 minutes 44 seconds West 56.31 feet to a point on the northwesterly extension
of the southwestern boundary of the 16.039 acre tract of land describe in the
WARRANTY DEED recorded in Deed Record 1218, page 592 on November 9,1962 in the
office of the Recorder of Lake County, Indiana; thence South 41 degrees 14
minutes 04 seconds East 2,501.08 feet along the northwesterly extension of the
southwestern boundary of said 16.039 acre tract of land and along the
southwestern boundary of said 16.039 acre tract of land to a point being North
48 degrees 49 minutes 21 seconds East of the point of beginning; thence South 48
degrees 49 minutes 21 seconds West 193.47 feet to the POINT OF BEGINNING
containing 9.452 acres, more or less.
EXCEPTING AND EXCLUDING THE FOLLOWING FROM THE ABOVE-DESCRIBED PARCELS:
A PARCEL OF REAL ESTATE THAT IS TWO HUNDRED (200) FEET WIDE (MEASURED FROM EAST
TO WEST) AND FIFTY (50) FEET IN DEPTH (MEASURED FROM NORTH TO SOUTH) AND LOCATED
IN THE NORTHEASTERNMOST CORNER OF THE ABOVE-DESCRIBED PARCELS.
EXHIBIT A, PAGE 7 OF 14
LAND DESCRIPTION
Redevelopment Commission Sublease
Ingress & Egress Access to Parking
version 1
28 MAY 96
A part of the Northeast Quarter of Section 1, Township 37 North, Range 10 West
located in North Township, Lake County, Indiana being bounded as follows:
Commencing at the Southeast Corner of the Southeast Quarter of Section 1,
Township 37 North, Range 10 West; thence North 01 degree 01 minute 03 seconds
West (assumed bearing) 2,195.00 feet along the East Line of said Section 1 to
its point of intersection with the centerline of Indianapolis Boulevard (100
foot wide right-of-way); thence North 40 degrees 07 minutes 55 seconds West
3,007.99 feet along the centerline of Indianapolis Boulevard; thence North 49
degrees 52 minutes 05 seconds East 50.00 feet perpendicular to the centerline of
Indianapolis Boulevard to the northeastern right-of-way line of Indianapolis
Boulevard; thence North 40 degrees 07 minutes 55 seconds West 190.50 feet along
the northeastern right-of-way line of Indianapolis Boulevard; thence North 51
degrees 02 minutes 14 seconds East 290.22 feet; thence South 60 degrees 14
minutes 57 seconds East 49.35 feet; thence North 54 degrees 00 minutes 00
seconds East 528.73 feet to the point of curvature of a curve to the right, said
point of curvature being North 36 degrees 00 minutes 00 seconds West 326.48 feet
from the radius point of said curve; thence northeasterly and easterly 176.71
feet along said curve to a point being North 04 degrees 59 minutes 19 seconds
West 326.48 feet from the radius point of said curve and to the POINT OF
BEGINNING of this description; thence North 48 degrees 49 minutes 21 seconds
East 35.00 feet; thence South 41 degrees 10 minutes 39 seconds East 625.56 feet;
thence South 41 degrees 14 minutes 09 seconds East 34.87 feet to a point on a
non-tangent curve concave to the northeast (said curve hereinafter referred to
as "Curve #1"), said point of curvature being South 48 degrees 38 minutes 51
seconds West 5,682.15 feet from the radius point of said curve; thence
southeasterly 150.03 feet along Curve #1 to a point being South 47 degrees 08
minutes 05 seconds West 5,682.15 feet from the radius point of Curve #1; thence
North 48 degrees 45 minutes 56 seconds East 96.78 feet; thence South 41 degrees
14 minutes 04 seconds East 100.00 feet; thence South 48 degrees 45 minutes 56
seconds West 128.09 feet to a point on a non-tangent curve concave to the
northeast (said curve is concentric with Curve #1), said point being South 46
degrees 08 minutes 30 seconds West 5,717.15 feet from the radius point of said
curve; thence northwesterly 250.02 feet along said curve to a point being South
48 degrees 38 minutes 51 seconds West 5,717.15 feet from the radius point of
said curve; thence North 41 degrees 14 minutes 09 seconds West 34.96 feet,
thence North 41 degrees 10 minutes 39 seconds West 625.58 feet to the POINT OF
BEGINNING containing 0.950 acres, more or less.
EXHIBIT A, PAGE 8 OF 14
LAND DESCRIPTION
REDEVELOPMENT Commission Sublease
Water Department Perimeter Road
version 2
24 MAY 96
A 32.00 foot-wide strip of land being a part of the Northwest Quarter of Section
?, Township 37 North, Range 9 West located in North Township, Lake County,
?????? the centerline of which is described as follows:
Commencing at the Southeast Corner of the Southeast Quarter of Section 1,
Township 37 North, Range 10 West: thence North 01 degree 01 minute 03 seconds
West (assumed bearing) 4,091,?3 feet along the East Line of said section 1 and
along the West Line of Section 6, Township 37 North, Range 9 West to a point on
a non-Tangent curve concave to the northeast, said point being South 38 degrees
59 minutes 01 second West 1,837,02 feet from the radius point of said curve;
thence southeasterly 62.23 feet along said curve to its point of Tangency, said
point of Tangency being South ?? degrees ?? minutes 21 seconds West 1,637.02
feet from the radius point of said curve; thence South 53 degrees 11 minutes 39
seconds East 650.47 feet to the right of curvature of curve to the left, said
point of curvature being South 36 degrees 48 minutes 21 seconds West 2,864,79
feet from the radius point of said curvature; thence southeasterly 84.09 said
curve to its point of Tangency, said point of Tangency being 35 degrees 07
minutes 27 seconds West 2.884,79 feet from the radius point of said curvature;
thence South ?? degrees 52 minutes 33 seconds East ???.80 feet to the point of
curvature of a curve to the left, said point of curvature being South 35 degrees
07 minutes 27 seconds West 35.00 feet from the radius point of said curve;
thence southeasterly, easterly, northeasterly, northerly, northwesterly 142.07
feet along said curve to its Tangency, said point of Tangency being North 67
degrees 07 minutes 27 East 55.00 feet from the radius point of the curve; thence
North 22 degrees 52 minutes 33 seconds West 53.74 feet to the point of curvature
of a curve to the right, said point of curvature being South ?7 degrees 07
minutes 27 seconds West 55.00 feet from the radius point of said curve : thence
northwesterly, northerly, northeasterly 5?.62 feet along said curve to its point
of Tangency, said point of Tangency 53 degrees 53 minutes 40 seconds West 55.00
feet from the radius point of said curve; thence North 36 degrees 06 minutes 20
seconds East 15.67 feet to the POINT OF BEGINNING of this centerline
description; thence North 38 degrees 06 minutes 20 seconds East 254.84 feet to
the point of curvature of a curve left, said point of curvature being South 53
degrees 53 minutes 40 seconds East 40.00 feet from the radius point of said
curve, thence northeasterly, northerly, and northwesterly, 63.49 feet along said
curve to its point of Tangency, said point of Tangency being North 35 degrees 0?
minutes 56 seconds East 40.00 feet from the radius point of said curve, thence
North 54 degrees 50 minutes 04 seconds West 117.95 feet to the point of
curvature of a curve to the right, said point of curvature being South 35
degrees 0? minutes 56 seconds West 40.00 feet from the radius point of said
curve, thence northwesterly, northerly, and northeasterly, ?0.84 feet along said
curve to its point of Tangency, point of Tangency being North ?7 degrees 40
minutes 52 seconds West 40.00 feet from the radius point of said curve, thence
North 32 degrees 1? minutes 08 seconds East 330.?? feet to the point of
curvature of a curve to the left, said point of curvature being South 57 degrees
40 minutes 52 East 40.00 feet from the radius point of said curve: thence
northeasterly, northerly, and northwesterly, ?0.76 feet along said curve to its
point of Tangency, said point of Tangency being North 35 degrees 17 minutes 10
seconds East 40.00 feet from the radius point of said curve: thence North 54
degrees 42 minutes 50 Seconds West 227.88 feet to the TERMINUS centerline
description. Containing 0,820 acres, more or less.
CURVE ?? CURVE ?2 CURVE ??
-------- -------- --------
. - 02'10'41' . - 01'40'?4' . - 148"0000"
R - 1?37.02' R - 2864.79 R - 55.00'
T - 31.12' T - 42.05' T - 191.81'
L - 62 23' L - 84.09' L - 142.07'
C - S52'06'19'E- 62.22' C - S54'02'0?'E- 84.08' C - N51'07'27'E-105.74
CURVE ?4 CURVE ?5 CURVE ??
- --------- -------- --------
. - 58'58'33' . - ?0'??'23' . - ?7'0?'12'
R - 55 R - 40,00' R - 40.00'
T - 31.11' T - 40,??' T - 38.06'
L - 56.62' L - ?3,49' L - ?0.84'
C - N0?'3?'S3'E-54.1S' C - N09'21'52'W-57.03' C - N1?'15'28'W-S?.1S'
CURVE ?7
--------
. - 87'01'58'
R - 40.00'
T - 37.?8'
L - 60.7?'
C - N11'11'?1'W-??.0?'
EXHIBIT A, Page 9 of 14
Licensed Acess LAND DESCRIPTION
- -------------- Redemtption Commission Sublease
Premises water Department Parmeter Road
-------- version 3
05 JUN 96
A 3200 feet-wide acre of land being a part of the
Northwest Quarter of Section6.Township 37 Northg, Range
9 West located in North Twonship, Lake County, Indiana
the centerline of which is described as follows:
Commencing at the Southeast Corner of the Southeast
Quarter of Section 1, Township 37 North, Range 10 West;
thence North 01 degree 01 minute or 03 seconds West
(assumed bearing) 4,091.63 feet along East Line of said
Section 1 and along the West Line of Section 6,
Township 37 North, Range 9 West to a point on a non-
tangent curve concave to the northeast, said point
being South 38 degrees 59 minutes 01 second West
1,637.02 from the routine point of said curve thence
southeasterly 62.23 feet along said curve to its point
of tangency, said point of tangency being being South
38 degrees 45 miuntes 21 seconds West 1,637.02 feet
from the radius point of said curves; thence South 53
degree 11 minutes 39 seconds East 650.47 feet to one
point of curvature of a curve to the left, said point
of curvature being South 36 degrees 46 minutes 21
seconds West 2,864,79 feet from the radius point of
said curve; thence southeasterly 84.09 feet along said
curve to its point of tangency, said point of tangency
being South 35 degrees 07 minutes 27 seconds West
2,864.79 feet from the radius point of said curve;
thence South 54 degrees 52 minutes 33 seconds East
325.80 feet to the point of curvature of a curve to the
left and to the POINT OF BEGINNING of true description,
said point of curvature of a curve to its point of said
curves, in each southeasterly, easterly, northeasterly,
northerly, and northwesterly 142.07 feet along said
curve to its point of tangency, said point of tangency
being North 07 degrees 07 minutes 27 seconds East 15.00
feet from the radius point of said curve, thence
northeasterly, northerly, and northeasterly 53.82 feet
along said curve to its point of tangency, said point
of tangency being North 53 degrees 40 seconds West
55.00 feet from the radius point of said curve; thence
North 34 degrees 04 minutes 20 seconds East 270.31 feet
to the point of curvature of a curve left, said point
of curvature being South 53 thence northeasterly,
northerly, and northwesterly 43.49 feet along said
curve to its point of tangency, said point of tangency
being North 35 degrees 05 minuted 56 seconds East 40.00
feet from the radius point of said curves, thence North
56 50 minutes 04 seconds West 117.95 feet to the point
of curvature of a curve tot he right, said point of
curvature being South 35 degrees 05 minutes 54 seconds
West northeasterly 50.84 feet along said curve to its
point of tangency, said point of tagency being North 57
degrees 40 minutes 52 seconds West 40.00 feet from the
radius to the poing of curvature of a curve left, said
point of curvature being South thence northeasterly,
northerly and northwesterly 60.76 feet along said curve
to its point of tangency, said curve point of tangency,
said point of tangency being North 35 degrees 17
minutes 10 seconds East 40.00 feet from the radius
point of said curve; thence North 54 degrees
description, Containing 1,017 acres, more or less.
Excepting therefrom the property described on the following two
(2) pages.
CURVE 11 CURVE 12
-------- --------
? - 02'10'41' ? - 01'40'?4'
R - 1?37.02' R - ???.7?'
T - 31.12' T - 42.05'
L - 62 23' L - ?4.0?'
C - S52'06'19'E- 62.22' C - S54'02'0?'E- 84.08'
CURVE 13 CURVE 14
-------- ---------
? - 148"0000" ? - 58'??'??'
R - 55.00' R - ??.00'
T - 191.81' T - 31.11'
L - 142.07' L - 5?.?2'
C - N?1'07'27'E-105.74 C - N0?'3?'S3'E-54.1S'
CURVE 15 CURVE 16
-------- --------
? - ?0'??'23' ? - ?7'0?'12'
R - 40,00' R - 40.00'
T - 40,??' T - 38.06'
L - ?3,49' L - ?0.84'
C - N09'21'52'W-57.03' C - N1?'15'28'W-S?.1S'
CURVE 17
--------
? - 87'01'58'
R - 40.00'
T - 37.?8'
L - 60.7?'
C - N11'11'?1'W-??.0?'
EXHIBIT A, PAGE 10 OF 14
LAND DESCRIPTION
Redevelopment Commission Sublease
Water Department Perimeter Road
version 2
24 MAY 96
A 32.00 foot-wide strip of land being a part of the Northwest Quarter of Section
6, Township 37 North, Range 9 West located in North Township, Lake County,
Indiana the centerline of which is described as follows:
Commencing at the Southeast Corner of the Southeast Quarter of Section 1,
Township 37 North, Range 10 West; thence North 01 degree 01 minute 03 seconds
West (assumed bearing) 4,091.63 feet along the East Line of said Section 1 and
along the West Line of Section 6, Township 37 North, Range 9 West to a point on
a non-tangent curve concave to the northeast, said point being South 38 degrees
59 minutes 01 second West 1,637.02 feet from the radius point of said curve;
thence southeasterly 62.23 feet along said curve to its point of tangency, said
point of tangency being South 36 degrees 48 minutes 21 seconds West 1,637.02
feet from the radius point of said curve; thence South 53 degrees 11 minutes 39
seconds East 650.47 feet to the point of curvature of a curve to the left, said
point of curvature being South 36 degrees 48 minutes 21 seconds West 2,864.79
feet from the radius point of said curve; thence southeasterly 84.09 feet along
said curve to its point of tangency, said point of tangency being South 35
degrees 07 minutes 27 seconds West 2,864.79 feet from the radius point of said
curve; thence South 54 degrees 52 minutes 33 seconds East 325.80 feet to the
point of curvature of a curve to the left, said point of curvature being South
35 degrees 07 minutes 27 seconds West 55.00 feet from the radius point of said
curve; thence southeasterly, easterly, northeasterly, northerly, and
northwesterly 142.07 feet along said curve to its point of tangency, said point
of tangency being North 67 degrees 07 minutes 27 seconds East 55.00 feet from
the radius point of said curve; thence North 22 degrees 52 minutes 33 seconds
West 53.74 feet to the point of curvature of a curve to the right, said point of
curvature being South 67 degrees 07 minutes 27 seconds West 55.00 feet from the
radius point of said curve; thence northwesterly, northerly, and northeasterly
56.62 feet along said curve to its point of tangency, said point of tangency
being North 53 degrees 53 minutes 40 seconds West 55.00 feet from the radius
point of said curve; thence North 35 degrees 06 minutes 20 seconds East 15.67
feet to the POINT OF BEGINNING of this centerline description; thence North 36
degrees 06 minutes 20 seconds East 254.64 feet to the point of curvature of a
curve left, said point of curvature being South 53 degrees 53 minutes 40 seconds
East 40.00 feet from the radius point of said curve; thence northeasterly.
EXHIBIT A, PAGE 11 OF 14
northerly, and northwesterly 63.49 feet along said curve to its point of
tangency, said point of tangency being North 35 degrees 09 minutes 56 seconds
East 40.00 feet from the radius point of said curve; thence North 54 degrees 50
minutes 04 seconds West 117.95 feet to the point of curvature of a curve to the
right, said point of curvature being South 35 degrees 09 minutes 56 seconds West
40.00 feet from the radius point of said curve; thence northwesterly, northerly,
and northeasterly 60.84 feet along said curve to its point of tangency, said
point of tangency being North 57 degrees 40 minutes 52 seconds West 40.00 feet
from the radius point of said curve; thence North 32 degrees 19 minutes 08
seconds East 330.68 feet to the point of curvature of a curve to the left, said
point of curvature being South 57 degrees 40 minutes 52 seconds East 40.00 feet
from the radius point of said curve; thence northeasterly, northerly, and
northwesterly 60.76 feet along said curve to its point of tangency, said point
of tangency being North 35 degrees 17 minutes 10 seconds East 40.00 feet from
the radius point of said curve; thence North 54 degrees 42 minutes 50 Seconds
West 227.88 to the TERMINUS of this centerline description. Containing 0.820
acres, more or less.
EXHIBIT A, PAGE 12 OF 14
LAND DESCRIPTION
parking premises
Hammond Water Works
version 2
14 JUN 96
A part of the Northwest Quarter of Section 6, Township 37 North, Range 9 West
located in North Township, Lake County, Indiana being bounded as follows:
Commencing at the Southeast Corner of the Southeast Quarter of Section 1,
Township 37 North, Range 10 West, thence North 01 degree 01 minute 03 seconds
West (assumed bearing) 4,091.63 feet along the East Line of said Section 1 and
along the West Line of Section 6, Township 37 North, Range 9 West to a point on
a non-tangent curve concave to the northeast, said point being South 38 degrees
59 minutes 01 second West 1,637.02 feet from the radius point of said curve;
thence southeasterly 62.23 feet along said curve to its point of tangency, said
point of tangency being South 36 degrees 48 minutes 21 seconds West 1,637.02
feet from the radius point of said curve; thence South 53 degrees 11 minutes 39
seconds East 273.37 feet, thence North 35 degrees 17 minutes 19 seconds East
178.74 feet, thence South 54 degrees 42 minutes 50 seconds East 19.00 feet to
the POINT OF BEGINNING of this description; thence South 54 degrees 42 minutes
50 seconds East 107.00 feet; thence South 35 degrees 17 minutes 10 seconds West
78.47 feet; thence North 54 degrees 42 minutes 50 seconds West 107.00 feet
thence North 35 degrees 17 minutes 10 seconds East 78.47 feet to the POINT OF
BEGINNING containing 0.193 acres, more or less.
EXHIBIT A, PAGE 13 OF 14
LAND DESCRIPTION
landscape/???? ????????
Hammond Water Works
Version 1
? JUN 96
A ???? of the Northwest Quarter of Section 6, ???????? 17 North Range 10 West
thence,North 01 degrees 01 minute 03 seconds West (????????? bearing) 6,?16?
feet along the East Line of said Section 1 and along the West Line of Section 6,
???????? 37 North, Range ? West to a point on a non- tangency curve concave to
the northeast,said point being South 38 degrees 5? minutes 01 seconds West
1,?57.02 feet from the radius point of said curve thence southeasterly 62.??
feet along said curve to its point of tangency, said point of tangency being
South ?? degrees ?? minutes 21 seconds West 1,6?7.02 feet from the radius
point of said curve thence South ?? degrees 11 minutes 38 seconds East ?50.47
feet to the point of curvature of a curve to the left, said point of curvature
being South ?? degrees ?? minutes 2? seconds West 2.??4.79 feet from the
radius point of said curve thence southeasterly ?4.0? feet along said curve to
its point of, said point of tangency being South ?? degrees 07 minutes 27
seconds West 2,???.7? feet from the radius point of said curve thence South 54
degrees 52 minutes ?? seconds East ???.?? feet to the point of curvature of a
curve to the left, said point of curvature being South 35 degrees 07 minutes 27
seconds West 55.00 feet from the radius point of said curve thence
southeasterly,easterly, northeasterly, northerly, and northwesterly, 142.07 feet
along said curve to its point of tangency, said point of tangency being North
?7 degrees 07 minutes 27 seconds East ??.00 feet from the radius point of said
curve; thence North 22 degrees 52 minutes ?3 seconds West ?3.74 feet to the
point of curvature of a curve to the right, said point of curvature being South
?7 degrees 07 minutes 27 seconds West ??.00 feet from the radius point of said
curve; thence northwesterly, northerly, and northeasterly 56.?2 feet along said
curve to its point of tangency, said point of tangency being North 5? degrees
?? 40 seconds West 55.00 feet from the radius point of said curve: thence North
?? degrees 0? minutes 20 seconds East 270.31 feet to the point of curvature of
a curve left, said point of curvature being South 53 degrees ?? minutes 40
seconds East 40.00 feet from the radius point of said curve: thence
northeasterly, northerly and northwesterly ?1?? feet along said curve to its
point of tangency, said point of tangency being North ?? degrees 0? minutes
5? seconds East 40.00 feet from the radius point of said curve thence North 54
degrees 50 minutes 04 seconds West 117.?5 feet to the point to the point of
curvature of a curve to the right, said point of curvature being South 35
degrees 0? minutes ?? seconds West 40.00 feet from the radius point of said
curve: thence northwesterly, northerly and northeasterly ?0.84 feet along said
curve to its point tangency, said point tangency being North 5? degrees 40
minutes 52 seconds West 40.00 feet from the radius point of said curve: thence
North 32 degrees 1? minutes 0? seconds East 330.68 feet to the point of
curvature of a curve to the left, said point of curvature being South 57 degrees
40 minutes 52 seconds East 40.00 feet from the radius point of said curve:
northeasterly, northerly, and northwesterly ?0.7? feet along said curve to its
point of tangency, said point of tangency being North 3? degrees 17 minutes
10 seconds East 40.00 feet from the radius point of said curve : thence South
3? degrees 17 minutes 10 seconds West 1?.00 along radius ??? of said curve to
the POINT OF BEGINNING of the description thence South ?? degrees 17 minutes 10
seconds West 1?.00 feet along the radius ??? of said curve: thence North 54
degrees 42 minutes 50 seconds West 227.8? feet thence North ?5 degrees 1?
minutes ?7 seconds East 1?.00 feet thence South ?4 degrees 42 minutes 50
seconds East 227.8? feet to the POINT OF BEGINNING containing 0.078 acres, more
or less.
CURVE 11 CURVE 12 CURVE 13
- --------- ---------- ----------
? - 02?0'41' ? - 01'40'S?' ? - 14?00'00'
R _ 1??7.02' R - 28?4,7?' R - ??.00'
T - ??.1?' T - 42.0?' T - 1?1.?1"
L - ?2???' L - ?4.0?' L -142.0?'
C - S????????- ?????' C - ??4'02'06? ?40?' C - N51'0?'??E- 10?.74'
CURVE 14 CURVE 15 CURVE 16
- --------- ---------- ----------
? - ?8'?8'??' ? - ?0' ??'?3' ? - 87'0??2'
R - ??.00' R - 40.00' R - 40.00'
T - ?1.11' T - 40.??' T - ??.0?
L - ??.?2' L - ??.??' L - ?0.84'
C - N0?'3?'??E- 54,15' C - N0?'21' ?2'W?57.0?' C - N1?'15'?8'?-??.1S'
CURVE 17
- ---------
? - ?7'01"??'
R - 40.00'
T - 37.??'
L - ??.78'
C - N11'?1'?1'W-??.0?'
EXHIBIT A, Page 14 of 14
End of File