EXHIBIT 4.8(k)
AFTER RECORDING THIS
INSTRUMENT SHOULD BE
RETURNED TO:
Xxxxx X. Xxxxxx, Esq.
Xxxxxxxxx & Xxxxxx, LLC
000 Xxxxxxx Xxx, Xxxxx X
Xxxx, XX 00000
____________________________________________________________
SENIOR MORTGAGE, WITH ABSOLUTE ASSIGNMENT OF LEASES AND
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RENTS, SECURITY AGREEMENT AND FIXTURE FILING
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NOTICE: THIS MORTGAGE SECURES CREDIT IN THE INITIAL MAXIMUM PRINCIPAL
AMOUNT OF ONE HUNDRED MILLION DOLLARS ($100,000,000.00), TOGETHER WITH:
(i) INTEREST ON THE OUTSTANDING PORTION OF SAID PRINCIPAL AMOUNT; and (ii)
OTHER AMOUNTS DESCRIBED HEREIN. THE OBLIGATIONS SECURED HEREBY INCLUDE
REVOLVING CREDIT OBLIGATIONS WHICH PERMIT BORROWING, REPAYMENT AND
REBORROWING, ALL SUBJECT TO THE TERMS AND CONDITIONS OF THE CREDIT
AGREEMENT AND THE NOTES THAT ARE REFERRED TO HEREIN. INTEREST ON
OBLIGATIONS SECURED HEREBY ACCRUES AT RATES WHICH MAY FLUCTUATE FROM TIME
TO TIME.
THE PARTIES TO THIS SENIOR MORTGAGE, WITH ABSOLUTE ASSIGNMENT OF LEASES AND
RENTS, SECURITY AGREEMENT AND FIXTURE FILING, made as of June 30, 1998 (this
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"Mortgage"), are EMPRESS CASINO JOLIET CORPORATION, an Illinois corporation
("Mortgagor"), having its chief executive office at 0000 Xxxxxxx Xxxxx, Xxxxxx,
Xxxxxxxx, 00000, and XXXXX FARGO BANK, NATIONAL ASSOCIATION, as Agent Bank on
behalf of the Lenders, the Swingline Lender and the L/C Issuer, all of which are
defined and described in the Credit Agreement referred to below ("Mortgagee"),
having an office at Xxx Xxxx Xxxxx Xxxxxx, Xxxx, Xxxxxx 00000.
ARTICLE 1. GRANT
1.1 GRANT. Upon the terms and conditions in this Mortgage, Mortgagor
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irrevocably grants, bargains, sells, conveys, assigns, mortgages and warrants to
Mortgagee, its successors and assigns, all of Mortgagor's right, title and
interest in all of the real property located in the City of Joliet, County of
Will, State of Illinois described on Exhibit A attached hereto and made a part
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hereof (the "Land"), together with and including, without limitation:
(a) all right, title and interest of Xxxxxxxxx whether now owned or
hereafter acquired, in or to any real property lying within the right of
way of any street, open or proposed, which adjoins any of said Land and any
and all sidewalks, bridges, elevated walkways, tunnels, alleys, strips and
gores of real property adjacent to, connecting or used in connection with
any of said Land (collectively, the "Adjacent Property");
(b) all buildings, structures and all other improvements and fixtures
that are, or that may be hereafter erected or placed on, or in, the Land
and all right, title and interest of Mortgagor which is now owned or
hereafter acquired, in or to, all buildings, structures and all other
improvements and fixtures that are, or that may be hereafter, erected or
placed on, or in, any of the Adjacent Property (collectively, the
"Improvements");
(c) the Vessels (which are defined by Article 4 below), to the extent
that such Vessels are deemed to constitute real property under applicable
law (to such extent, collectively referred to herein as, the "Vessel Real
Property Interests");
(d) all right, title and interest of Xxxxxxxxx, whether now owned or
hereafter acquired in and to all of the present and future accretions,
alluvions, avulsions, batture and other riparian rights in, to, and with
respect to, the Des Plaines River (collectively, the "Riparian Rights");
(e) all water rights and conditional water rights that are now, or may
hereafter be, appurtenant to, used in connection with or intended for use
in connection with the Land, the Adjacent Property, the Improvements, the
Vessels and/or the Riparian Rights including, without limitation: (i)
ditch, well, pipeline, spring and reservoir rights, whether or not
adjudicated or evidenced by any well or other permit; (ii) all rights with
respect to groundwater underlying the Land or the Adjacent Property; (iii)
any permit to construct any water well, water from which is intended to be
used in connection with the Land, the Adjacent Property or the Vessels; and
(iv) all of Mortgagor's right, title and interest under any decreed or
pending plan of augmentation or water exchange plan (collectively, the
"Water Rights", and together with the Land, the Adjacent Property, the
Improvements, the Vessel Real Property Interests and the Riparian Rights,
the "Real Estate");
(f) all right, title and interest of Mortgagor in, and under, all
leases, subleases, licenses, concessions, franchises and other use or
occupancy agreements now or
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hereafter relating to any of the Real Estate and all renewals, extensions,
amendments, restatements and other modifications thereof (collectively, the
"Real Property Leases") subject, however, to the absolute assignment given
to Mortgagee in Article 3 hereof entitled Assignment of Leases and
Payments, and to which Article this grant to Mortgagee is subject and
subordinate;
(g) all present and future rents, issues, products, earnings,
revenues, payments, profits, royalties and other proceeds and income of the
Real Estate, and of any activities conducted thereon or in connection
therewith, regardless of whether such proceeds or income accrue by virtue
of the Real Property Leases, or otherwise (collectively, the "Rents")
subject, however, to the absolute assignment given to Mortgagee in Article
3 hereof entitled Assignment of Leases and Payments, and to which Article
this grant to Mortgagor is subject and subordinate; and
(h) all and singular the tenements, easements, hereditaments and
appurtenances now, or hereafter, belonging to or in any wise appertaining
to the Real Estate and/or the Rents and the reversion and reversions,
remainder and remainders thereof and all the estate, right, title, interest
or other claim which Mortgagor now has or hereafter may acquire of, in and
to the Real Estate, the Real Property Leases, the Rents and/or any part
thereof, with the appurtenances thereto (collectively, the "Other
Interests").
The Real Estate, the Real Property Leases, the Rents and the Other Interests are
hereinafter collectively referred to as the "Real Property".
TO HAVE AND TO HOLD the Real Property, properties, rights and
privileges hereby conveyed or assigned, or intended so to be, unto Mortgagee,
and its successors and assigns, in fee simple forever for the uses and purposes
herein set forth subject only to the ECJC Permitted Encumbrances (as defined in
the Credit Agreement).
1.2 ADDRESS. The address of the Real Property is: 0000 Xxxxxxx Xxxxx,
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Xxxxxx, Xxxxxxxx. However, neither the failure to designate an address nor any
inaccuracy in the address designated shall affect the validity or priority of
the lien of this Mortgage on the Real Property.
1.3 NON-AGRICULTURAL USE. Mortgagor represents and warrants to Mortgagee
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that the Real Property is not used principally for agricultural or farming
purposes.
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ARTICLE 2. OBLIGATIONS SECURED
2.1 OBLIGATIONS SECURED. Mortgagor makes this Mortgage for the purpose of
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securing the following obligations (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 (as defined in the Credit Agreement), not to exceed One Hundred Million
Dollars ($100,000,000.00) at any one time, all on a reducing revolving line of
credit basis; (ii) interest and other charges accrued on said principal sum, or
accrued on interest and other charges then outstanding under the Credit Facility
(all including, without limitation, interest and other charges that would accrue
on such obligations, but for the filing of a petition in bankruptcy with respect
to Empress Entertainment, Inc., a Delaware corporation, Mortgagor, Empress
Casino Hammond Corporation, an Indiana corporation (collectively, "Borrowers"),
or any of them; and (iii) any other obligations of Borrowers, or any of them,
under the RLC Note referred to below; all according to the terms of a Revolving
Credit Promissory Note dated June 17, 1998 which is made by Xxxxxxxxx and is
payable to the order of Mortgagee according to the tenor and effect of said
Revolving Credit Promissory Note, and all renewals, extensions, amendments,
restatements, replacements, substitutions and other modifications thereof
(hereinafter collectively referred to as the "RLC Note").
(b) Payment when due, whether at stated maturity, by required
prepayment, declaration, acceleration, demand or otherwise (including payment of
amounts that would become due but for the operation of the automatic stay under
Section 362(a) of the Bankruptcy Code, 11 U.S.C. (S) 362(a)), of: (i) the
principal sum which is, at any time, advanced and unpaid under the Swingline
Facility (as defined in the Credit Agreement), not to exceed Five Million
Dollars ($5,000,000.00) at any one time, all on a revolving line of credit
basis; (ii) interest and other charges accrued on said principal sum, or accrued
on interest and other charges then outstanding under the Swingline Facility (all
including, without limitation, interest and other charges that would accrue on
such obligations, but for the filing of a petition in bankruptcy with respect to
Borrowers, or any of them); and (iii) any other obligations of Borrowers, or any
of them, under the S/L Note referred to below; all according to the terms of a
Swingline Note dated June 17, 1998 which is made by Borrowers and is payable to
the order of Mortgagee according to the tenor and effect of said Swingline Note,
and all renewals, extensions, amendments, restatements, replacements,
substitutions and other modifications
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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 Empress Casino Xxxxxxx Corporation under date of June 17, 1998 and which is
to be executed by Xxxxxxxxx on or before July 31, 1998.
(d) Payment and performance of every obligation, covenant, promise and
agreement of Mortgagor herein contained or incorporated herein by reference,
including any sums paid or advanced by Mortgagee or any of the Banks (which are
defined below) pursuant to the terms hereof.
(e) Payment of the expenses and costs incurred or paid by Mortgagee or
any of the Banks in the preservation and enforcement of the rights and remedies
of Mortgagee and the duties and liabilities of Mortgagor hereunder, including,
but not by way of limitation, reasonable attorney's fees, court costs, witness
fees, expert witness fees, collection costs, and reasonable costs and expenses
paid by Mortgagee or any of the Banks in performing for Xxxxxxxxx's account any
obligation of said Xxxxxxxxx.
(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 the Mortgage.
(g) Payment of additional sums and interest thereon which may
hereafter be loaned to Borrowers, or any of them, pursuant to the Credit
Agreement when evidenced by a promissory note or notes which recite that this
Mortgage is security therefor.
(h) Performance and payment of every obligation, warranty,
representation, covenant, agreement and promise of Borrowers, or any of them,
contained in that certain Credit Agreement (the "Original Credit Agreement")
executed under date of June 17, 1998 by Xxxxxxxxx, the Lenders therein named
(each, together with their respective successors and assigns, individually
referred to herein as a "Lender" and collectively referred to
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herein as the "Lenders"), the Swingline Lender therein named (together with its
successors and assigns, referred to herein as the "Swingline Lender"), the L/C
Issuer therein named (together with its successors and assigns, referred to
herein as the "L/C Issuer"), and Xxxxx Fargo Bank, National Association, as
administrative and collateral agent for the Lenders, the Swingline Lender and
the L/C Issuer (referred to herein, in such capacity, together with its
successors and assigns, as the "Agent Bank" and together with the Lenders, the
Swingline Lender and the L/C Issuer, collectively referred to herein as the
"Banks"), as well as performance and payment of every obligation, warranty,
representation, covenant, agreement and promise of Borrowers, or any of them,
contained in all extensions, renewals, amendments, restatements and other
modifications of the Original Credit Agreement (with the Original Credit
Agreement, as so extended, renewed, amended, restated, substituted and/or
otherwise modified being collectively referred to herein as the "Credit
Agreement").
2.2 FUTURE ADVANCES. This Mortgage is given for the purpose of securing,
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among other things, loan advances which the Mortgagee may make to or for
Mortgagor pursuant and subject to the terms and provisions of the Credit
Agreement. The parties hereto intend that, in addition to any other debt or
obligation secured hereby, this Mortgage shall secure unpaid balances of loan
advances made after this Mortgage is delivered to the Recorder of Deeds, Will
County, Illinois, whether made pursuant to an obligation of Mortgagee or
otherwise, provided that such advances are within twenty (20) years from the
date hereof and in such event, such advances shall be secured to the same extent
as if such future advances were made on the date hereof, although there may be
no advance made at the time of execution hereof and although there may be no
indebtedness outstanding at the time any advance is made. Such loan advances
may or may not be evidenced by notes executed pursuant to the Credit Agreement.
2.3 OBLIGATIONS. The term "obligation" is used herein in its broadest and
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most comprehensive sense and shall be deemed to include, without limitation, all
protective advances and all sums advanced to protect the Property or the lien of
this Mortgage or otherwise disbursed or incurred under the terms of the Loan
Documents (as defined in the Credit Agreement), together with all interest and
charges, prepayment charges (if any), late charges and loan fees at any time
accruing or assessed on any of said obligations. The principal portion of the
Secured Obligations shall not exceed an aggregate amount, at any one time
outstanding, of Two Hundred Million Dollars ($200,000,000); provided that the
foregoing limitation shall apply only to the lien upon the Real Property created
by this Mortgage, and it shall not in any manner limit, affect or impair any
grant of a security interest or other right in favor of the Mortgagee under the
provisions of: (i) this Mortgage; (ii) the Credit Agreement; or (iii) any other
security agreement at any time executed by Xxxxxxxxx.
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2.4 INCORPORATION. All terms of the Secured Obligations and the documents
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evidencing such obligations are incorporated herein by this reference. All
persons who may have or acquire an interest in the Property (which is defined by
Article 4 below), or any portion thereof, shall be deemed to have notice of the
terms of the Secured Obligations, which terms include without limitation,
provisions which: (i) provide that the rate of interest on one or more Secured
Obligations may vary from time to time; and (ii) permit borrowing, repayment and
reborrowing.
ARTICLE 3. ASSIGNMENT OF LEASES AND PAYMENTS
3.1 ASSIGNMENT. Mortgagor hereby irrevocably assigns to Mortgagee all of
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Mortgagor's right, title and interest in, to and under: (a) the Real Property
Leases and, to the extent not included within the Real Property Leases, all
leases, subleases, licenses, concessions, franchises and other use or occupancy
agreements now or hereafter relating to any of the Vessels and all renewals,
extensions, amendments, restatements and other modifications thereof (all of
which are collectively referred to herein as the "Leases"); and (b) the Rents
and, to the extent not included within the Rents, all present and future rents,
issues, products, earnings, revenues, payments, profits, royalties and other
proceeds and income of the Vessels and of any activities conducted thereon (all
of which are collectively referred to herein as the "Payments"). This is a
present and absolute assignment, not an assignment for security purposes only,
and Xxxxxxxxx's right to the Leases and Payments is not contingent upon, and may
be exercised without possession of, the Real Property or the Vessels, and
without the commencement of a foreclosure action or the appointment of a
receiver or the institution of any legal proceeding of any kind whatsoever.
Furthermore, upon any Default (as defined by Article 6 below), Mortgagee shall
be entitled to receive pursuant to the foregoing assignment, and Mortgagor shall
be obligated to deliver to Mortgagee or its designee (including any receiver),
any and all Payments collected by Mortgagor which remain in the possession or
control of Mortgagor, whether or not commingled with other funds of Mortgagor,
and whether collected by Xxxxxxxxx before or after the occurrence of the
Default.
3.2 GRANT OF LICENSE. Mortgagee confers upon Mortgagor a license
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("License") to collect and retain the Payments as they become due and payable,
until the occurrence of a Default (as hereinafter defined). Upon a Default, the
License shall be automatically revoked and Mortgagee may collect and apply the
Payments pursuant to Article 6 below, without notice and without taking
possession of the Real Property or of the Vessels. Xxxxxxxxx hereby irrevocably
authorizes and directs the lessees under the Leases to rely upon and comply with
any notice or demand by Mortgagee for the payment to Mortgagee of any rental or
other sums which may at any time become due under the Leases, or for the
performance of any of the lessees' undertakings under the Leases,
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and the lessees shall have no right or duty to inquire as to whether any Default
has actually occurred or is then existing hereunder. Mortgagor hereby relieves
the lessees from any liability to Mortgagor by reason of relying upon and
complying with any such notice or demand by Mortgagee.
3.3 EFFECT OF ASSIGNMENT. The foregoing irrevocable assign ment shall not
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cause Mortgagee to be: (a) a mortgagee in possession; (b) responsible or liable
for the control, care, management or repair of the Real Property, or the
Vessels, or for performing any of the terms, agreements, undertakings,
obligations, representations, warranties, covenants and conditions of the
Leases; (c) responsible or liable for any waste committed on the Real Property,
or the Vessels, by the lessees under any of the Leases or any other parties; (d)
responsible or liable for any dangerous or defective condition of the Real
Property or the Vessels; or (e) responsible or liable for any negligence in the
management, upkeep, repair or control of the Real Property or the Vessels
resulting in loss or injury or death to any lessee, licensee, employee, invitee
or other person. Mortgagee shall not directly or indirectly be liable to
Mortgagor or any other person as a consequence of: (i) the exercise or failure
to exercise any of the rights, remedies or powers granted to Mortgagee
hereunder; or (ii) the failure or refusal of Mortgagee to perform or discharge
any obligation, duty or liability of Mortgagor arising under any of the Leases.
3.4 REPRESENTATIONS AND WARRANTIES. Mortgagor represents and warrants
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that: (a) to Mortgagor's knowledge, all existing Leases are in full force and
effect and are enforceable in accordance with their respective terms, and no
breach, default or event which would constitute a breach or default after notice
or the passage of time, or both, exists under any existing Leases on the part of
any party; (b) no rent or other payment under any existing Lease has been paid
by any lessee for more than one (1) month in advance; and (c) none of the
Mortgagor's interests under any of the Leases has been transferred or assigned.
3.5 COVENANTS. Mortgagor covenants and agrees at Xxxxxxxxx's sole cost
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and expense to: (a) perform the lessor's obligations contained in the Leases
and enforce by all available remedies performance by the lessees of the
obligations of the lessees contained in the Leases; and (b) execute and record
(or cause to be executed and recorded) such additional assignments of any Lease
or specific subordinations of any Lease to this Mortgage, in form and substance
acceptable to Mortgagee, as Mortgagee may reasonably request. Mortgagor shall
not, without Mortgagee's prior written consent or as otherwise permitted by any
provision of the Credit Agreement: (i) execute any other assignment relating to
any of the Leases; or (ii) subordinate or agree to subordinate any of the Leases
to pay other mortgage or encumbrance. Any such action in violation of this
Section 3.5 shall be null and void.
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ARTICLE 4. SECURITY AGREEMENT
AND FIXTURE FILING
4.1 SECURITY INTEREST. Mortgagor hereby grants and assigns to Mortgagee a
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security interest, to secure payment and performance of all of the Secured
Obligations in, and to, all right, title and interest of Mortgagor which is now
owned or hereafter acquired in or to any of the following described personal
property (collectively, the "Personal Property"):
(a) All present and future chattels, furniture, furnishings,
equipment, fixtures, building materials, building contents and building
components, all of every kind and nature, and other tangible personal property:
(i) which is used in connection with, situate in or on, affixed to, or
incorporated into any portion of the Real Property; (ii) which is used in
connection with, situate in or on, affixed to, or incorporated into, any
building, structure or other improvement that is now or that may be hereafter
constructed on or under the Real Property; (iii) 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 Mortgagor otherwise has or acquires an interest; all
including, without limitation: (aa) all lumber, bricks, cement, masonry, steel,
doors, windows, fasteners, nails, bolts, scaffolding, tools, construction
supplies, construction tools and equipment and all other building materials,
supplies and equipment of any kind or nature; (bb) all air conditioning,
heating, electrical, lighting, fire fighting and fire prevention, plumbing, food
and beverage preparation, laundry, security, sound, signaling, telephone,
television, entertainment stage, window washing, irrigation, storage, shop,
landscaping, signage and other equipment and fixtures, of whatever kind or
nature, consisting of, without limitation, air conditioners, compressors, fans,
duct work, thermostats, furnaces, boilers, radiators, burners, wiring, conduits,
cables, generators, transformers, switching gear, lighting fixtures, sprinkler
systems and other fire extinguishing equipment, fire alarms and other fire
detection equipment, piping, pumps, valves, sinks, toilets, tubs, motors, carts,
elevators and other lifts, ovens, refrigerators, dishwashers and dishwashing
equipment, fabric washing and drying equipment, lock and key systems,
surveillance and entry detection systems, speakers, intercoms and public address
systems, hardware, shelving, maintenance and repair equipment and all other
similar items; (cc) 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; (dd) all hotel equipment and supplies, including without
limitation, televisions, radios, telephones, linen, bedding, amenities, carts,
recreational equipment, leisure equipment and all
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other equipment and supplies utilized in the occupation or renting of hotel
guest rooms and public areas; (ee) 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; (ff)
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 The Riverboat Gambling Act 230 ILCS
10/1 et. Seq. and all other equipment and supplies utilized in operation of a
casino; (gg) 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; (hh)
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;
(ii) all indoor and outdoor pool and recreational equipment and supplies; (jj)
all tools and other maintenance and repair equipment; (kk) all landscaping
equipment and supplies; and (ll) all equipment and supplies utilized in
connection with any other activity engaged in by Mortgagor;
(b) The following vessels (collectively, the "Vessels"): (i) that
certain casino vessel named "Empress" which is designated by U.S. Coast Guard
Official Number 984286 and which is currently afloat on the Des Plaines River at
Joliet, Illinois ("Empress"); (ii) that certain casino vessel named "Empress II"
which is designated by U.S. Coast Guard Official Number 998517 and which is also
currently afloat on the Des Plaines River at Joliet, Illinois ("Empress II");
and (iii) any vessels which are hereafter substituted for Empress or Empress II
and all other boats, barges and other vessels which are now owned or hereafter
acquired, regardless of whether afloat or placed on dry land; all 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,
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the business of Mortgagor or in which Mortgagor 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
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 hotel amenities, 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 Mortgagor or in which Mortgagor 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 Mortgagor, or in which Mortgagor 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 Mortgagor, or in which Mortgagor 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; and (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 Mortgagor, or in which
Mortgagor 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);
(g) All present and future deposit accounts which are owned, or used
in connection with, or in the conduct of, the business of Mortgagor, or in which
Mortgagor 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 Mortgagor, 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 Mortgagor 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 any of 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 Mortgagor, or in which
Mortgagor, 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 Mortgagor, 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
Mortgagor, or in which Mortgagor 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 Xxxxxxxxx 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 any of
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 Mortgagor 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 Mortgagor 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 Mortgagee may deem necessary or advisable in
connection therewith;
(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
12
Property and/or any of the Vessels, together with all amendments and
modifications thereof;
(m) The Water Rights;
(n) 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;
(o) All rights, remedies, powers and/or privileges of Mortgagor with
respect to any of the foregoing; and
(p) 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.
SUBJECT, HOWEVER, to the following:
(i) the right of Mortgagor 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 Xxxxxxxxx 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.
The Real Property and the Personal Property described hereinabove are
hereinafter collectively referred to as the "Property". The parties intend for
this Mortgage to create a lien on and security interest in the Property, and, as
provided in Article 3 hereof entitled Assignment of Leases and Payments, an
absolute assignment of the Leases and Payments, all in favor of Mortgagee. To
the extent any of said Property, Leases and Payments are not encumbered by a
perfected lien or security interest created above, and are not absolutely
assigned by the assignment set forth in Article 3 above, it is the intention of
the parties that such Property, Leases and/or Payments shall constitute
"proceeds, product, offspring, rents or profits" (as defined in and for the
purposes of Section 552(b) of the United States Bankruptcy Code, as such section
may be modified or supplemented) of the Property and/or "fees, charges,
accounts, or other payments for the use or occupancy of rooms and other public
facilities in . . . lodging properties," as applicable (as such terms are
defined in and for
13
the purpose of Section 552(b) of the United States Bankruptcy Code, as such
Section may be modified or supplemented).
4.2 FIXTURE FILING. As to all of the above described Personal Property
--------------
which is or which hereafter becomes a "fixture" under applicable law, this
Mortgage constitutes a fixture filing under the Illinois Uniform Commercial
Code, as amended or recodified from time to time ("UCC").
4.3 REPRESENTATIONS AND WARRANTIES. Mortgagor represents and warrants
------------------------------
that (subject to the ECJC Permitted Encumbrances): (a) Mortgagor has good title
to the Personal Property; and (b) Mortgagor has not previously assigned or
encumbered the Personal Property, and no financing statement covering any of the
Personal Property has been delivered to any other person or entity.
4.4 RIGHTS OF MORTGAGEE. In addition to Mortgagee's rights as a "Secured
-------------------
Party" under the UCC, Mortgagee may, but shall not be obligated to, at any time
without notice (except as provided below) and at the expense of Mortgagor: (a)
give notice to any person of Mortgagee's rights hereunder and enforce such
rights at law or in equity; (b) insure, protect, defend and preserve the
Personal Property or any rights or interests of Mortgagee therein; and (c)
inspect the Personal Property at reasonable times and upon reasonable prior
notice. Notwithstanding the above, in no event shall Mortgagee be deemed to
have accepted any property other than cash in satisfaction of any obligation of
Mortgagor to Mortgagee unless Mortgagee shall make an express written election
of said remedy under the UCC, or other applicable law.
4.5 RIGHTS OF MORTGAGEE ON DEFAULT. Upon the occurrence of a Default
------------------------------
under this Mortgage, then in addition to all of Mortgagee's rights as a "Secured
Party" under the UCC or otherwise at law:
(a) Mortgagee may (i) upon written notice, require Mortgagor to
assemble any or all of the Personal Property and make it
available to Mortgagee at the Real Property; (ii) without prior
notice (except as otherwise required by applicable law), enter
upon the Property or other place where any of the Personal
Property may be located and take possession of, and/or collect
any or all of the Personal Property, and store the same at
locations acceptable to Mortgagee at Mortgagor's expense; and/or
(iii) upon ten (10) days' prior written notice to Mortgagor
(except with respect to Personal Property which is perishable,
which threatens to decline speedily in value, or which is of a
type customarily sold on a recognized market, in which case no
such notice shall be required) sell, assign, or otherwise dispose
of, and deliver,
14
at any place or in any lawful manner, all or any part of the
Personal Property and bid and become purchaser at any such sales;
and
(b) Mortgagee may, for the account of Mortgagor and at Mortgagor's
expense: (i) upon ten (10) days' prior written notice to
Mortgagor, operate, use, consume, sell or dispose of the Personal
Property as Mortgagee reasonably deems appropriate for the
purpose of performing any or all of the Secured Obligations; (ii)
upon ten (10) days' prior written notice to Mortgagor, enter into
any agreement, compromise, or settlement, including insurance
claims, which Mortgagee may reasonably deem desirable or proper
with respect to any of the Personal Property; (iii) endorse,
collect and receive any right to payment of money owing to
Mortgagor under or from the Personal Property; and (iv) endorse
and deliver evidences of title for, and receive, enforce and
collect by legal action or otherwise, all indebtedness and
obligations now or hereafter owing to Mortgagor in connection
with or on account of any or all of the Personal Property.
4.6 POWER OF ATTORNEY. Mortgagor hereby irrevocably appoints Mortgagee as
-----------------
Mortgagor's attorney-in-fact (such agency being coupled with an interest), and
as such attorney-in-fact Mortgagee may, without the obligation to do so, in
Mortgagee's name, or in the name of Mortgagor, prepare, execute and file or
record financing statements, continuation statements, applications for
registration and like papers necessary to create, perfect or preserve any of
Mortgagee's security interests and rights in or to any of the Personal Property,
and, upon a Default hereunder, take any other action required of Mortgagor;
provided, however, that Mortgagee as such attorney-in-fact shall be accountable
-------- -------
only for such funds as are actually received by Mortgagee.
ARTICLE 5. RIGHTS AND DUTIES OF THE PARTIES
5.1 CERTAIN REPRESENTATIONS AND WARRANTIES OF MORTGAGOR. Mortgagor
---------------------------------------------------
represents, warrants and covenants that:
(a) This Mortgage creates a first priority mortgage lien and/or, to
the extent applicable, a first priority security interest on the Land and all of
the Property which is in addition to the Land, subject only to ECJC Permitted
Encumbrances (as defined in the Credit Agreement); and
(b) Neither Mortgagor, nor any Affiliate thereof (as defined in the
Credit Agreement), has any interest in any real property, not encumbered hereby,
which is utilized in any material manner in connection with the use and/or
operation of the Real
15
Property or any of the Vessels, or which is necessary and required for the use
and operation of said Real Property and/or Vessels.
5.2 PAYMENT OF SECURED OBLIGATIONS. Mortgagor shall pay when due, or
------------------------------
cause to be paid when due: (i) the principal of, and interest on, the
indebtedness evidenced by the Notes; (ii) all charges, fees and other sums as
provided in the Loan Documents (as defined in the Credit Agreement) including,
without limitation, all reasonable costs, fees and expenses of this mortgage
incurred by Mortgagee in connection with any Default; (iii) the principal of,
and interest on, any future advances secured by this Mortgage; and (iv) the
principal of, and interest on, any other indebtedness secured by this Mortgage.
5.3 COMPLIANCE WITH LAWS. Mortgagor shall comply in all material respects
--------------------
with all applicable material existing and future laws, rules, regulations,
orders, ordinances and requirements of all Governmental Authorities (as defined
in the Credit Agreement), and with all recorded covenants and restrictions
affecting the Real Property and/or Vessels.
5.4 MAINTENANCE OF PROPERTY. Except to the extent that any of the
-----------------------
following would be prohibited under, or would constitute a violation of, the
terms and conditions of the Credit Agreement, Mortgagor agrees: (a) to properly
care for and keep said Property in good condition and repair; (b) not to remove,
demolish or substantially alter any of the Vessels or any material building on
the Real Property, except upon the prior written consent of Mortgagee; (c) to
complete promptly and in a good and workmanlike manner any building or other
improvement which may be constructed on the Real Property, and to pay when due
all claims for labor performed and materials furnished therefor (subject to
Mortgagor's right to contest the validity or amount of mechanic's and/or
materialman's liens in accordance with Section 5.04 of the Credit Agreement);
(d) not to commit or permit any waste or deterioration of the Property (ordinary
wear and tear, casualty and condemnation excepted); (e) not to commit, suffer or
permit any act to be done, or condition to exist, in or upon said Property in
material violation of any law, covenant, condition or restriction now, or
hereafter, affecting said Property (including any which require alteration or
improvement thereof); (f) to keep and maintain all grounds, sidewalks, roads,
parking and landscaped areas situate on the Property in good and neat order and
repair; (g) not to drill or extract or enter into any lease for the drilling for
or extraction of oil, gas or other hydrocarbon substances or any mineral of any
kind or character on or from the Property or any part thereof; (h) not to apply
for, willingly suffer or permit any subdivision, change in zoning, change in
land use regulation, or inclusion within a general improvement district or
similar assessment mechanism, with regard to any portion of the Real Property
without the prior written consent of Mortgagee; and (i) except as otherwise
permitted in the Credit Agreement, to do all other acts, in a
16
timely and proper manner, which, from the character or use of the Property, may
be reasonably necessary to maintain and preserve its value, the specific
enumerations herein not excluding the general.
5.5 INSURANCE. During the continuance of this mortgage, Mortgagor shall
---------
obtain, or cause to be obtained, and shall maintain or cause to be maintained,
at all times throughout the term of the Bank Facilities, at its own cost and
expense, and shall deposit with Mortgagee, Certificates of Insurance, each in a
form and substance, and at such times, as is required under Section 5.09 of the
Credit Agreement (collectively, the "Insurance Coverage"). All monies received
from "All Risk" insurance policies (including flood and earthquake policies)
covering any of the Property shall be: (i) paid directly to Mortgagee and
retained by Mortgagee or released to Mortgagor by Mortgagee; or (ii) paid
directly to Mortgagor; all in accordance with Section 8.02 of the Credit
Agreement. Nothing in this Mortgage shall be deemed to excuse Mortgagor from
restoring, repairing and maintaining the Property, as herein provided,
regardless of whether or not insurance proceeds are available for restoration,
whether or not any such proceeds are sufficient in amount, or whether or not the
Property can be restored to the same condition and character as existed prior to
such damage or destruction. Without limitation of any other right or remedy
which Mortgagee may have hereunder, under the Credit Agreement, or under any
other Loan Document, it is specifically provided that if Mortgagor fails to
provide evidence of the Insurance Coverage for a period of ten(10) days
following written notice from Mortgagee to Mortgager specifying such failure,
Mortgagee may purchase the Insurance Coverage not obtained by Mortgager at
Mortgagor's expense (the "Mortgagee Insurance") to protect Mortgagee's interests
in the Property. The Mortgagee Insurance may, but need not, protect Xxxxxxxxx's
interests. The coverage that Mortgagee purchases may, or may not, pay any claim
that Xxxxxxxxx makes or any claim that is made against Mortgagor in connection
with the Property. Mortgagor may later cancel any Mortgagee Insurance, but only
after providing Mortgagee with evidence that Xxxxxxxxx has obtained the
insurance as required by the Credit Agreement. Mortgagor will be responsible
for the costs of all Mortgagee Insurance, including interest and any other
charges Mortgagee may impose in connection with the placement of the Mortgagee
Insurance, until the effective date of the cancellation or expiration of the
Mortgagee Insurance. The costs of the Mortgagee Insurance may be added to the
existing balance of the Secured Obligations. The costs of the Mortgagee
Insurance may be more than the cost of the insurance Mortgagor is able to obtain
on its own. All monies received from Mortgagee Insurance shall be: (i) paid
directly to Mortgagee and retained by Mortgagee or released to Mortgagor by
Mortgagee; or (ii) paid directly to Mortgagor; all in accordance with Section
8.02 of the Credit Agreement.
17
5.6 TAXES AND ASSESSMENTS. Mortgagor shall pay all taxes, assessments and
---------------------
other governmental charges or levies affecting said Property, or any part
thereof, in the manner required by the Credit Agreement except such taxes,
assessments and other governmental levies as are being contested in good faith
in the manner provided by Section 4.07 or Section 5.10 of the Credit Agreement.
5.7 LIEN CLAIMS. If any mechanic's lien or materialman's lien shall be
-----------
recorded, filed or suffered to exist against the Property or any interest
therein by reason of any work, labor, services or materials supplied, furnished
or claimed to have been supplied and furnished in connection with any work of
improvement upon the Property, said lien or claim shall be paid, released or
otherwise discharged of record to the extent required by, and in accordance
with, Section 5.04 of the Credit Agreement.
5.8 EASEMENTS. If an easement or other incorporeal right (collectively,
---------
an "Easement") constitutes any portion of the Real Property, Mortgagor shall not
amend, change, terminate or modify such Easement, or any right thereto or
interest therein, without the prior written consent of Mortgagee, which consent
may be withheld in Mortgagee's sole discretion, and any such amendment, change,
termination or modification without such prior written consent shall be deemed
void and of no force or effect. Xxxxxxxxx agrees to perform all obligations and
agreements with respect to said Easement and shall not take any action or omit
to take any action which would effect or permit the termination thereof. Upon
receipt of notice, or otherwise becoming aware, of any default or purported
default under any Easement, by any party thereto, Mortgagor shall promptly
notify Mortgagee in writing of such default or purported default and shall
deliver to Mortgagee copies of all notices, demands, complaints or other
communications received or given by Mortgagor with respect to any such default
or purported default.
5.9 PERFORMANCE BY MORTGAGEE. Should Mortgagor fail to make any payment
------------------------
or perform any act which would have Material Adverse Effect, then Mortgagee, at
its election, upon giving reasonable notice to Xxxxxxxxx, and without releasing
Mortgagor from any obligation hereunder, may make such payment or perform such
act and incur any liability, or expend whatever amounts, in its discretion, it
may deem necessary therefor. All sums incurred or expended by Mortgagee, under
the terms hereof, shall become due and payable by Mortgagor to Mortgagee, on the
next interest or instalment payment date under any of the promissory notes
secured hereby and shall bear interest until paid at an annual percentage rate
equal to the Default Rate expressed in the Credit Agreement. In no event shall
such payment or performance of any such act by Mortgagee be construed as a
waiver of the default occasioned by Xxxxxxxxx's failure to make such payment(s)
or perform such act(s).
18
5.10 ACTIONS AFFECTING PROPERTY. Xxxxxxxxx promises and agrees that
--------------------------
if, during the existence of this Mortgage, there shall be commenced or pending
any suit or action affecting said Property, or any part thereof, or the title
thereto, or if any adverse claim for or against said Property, or any part
thereof, be made or asserted, it will appear in and defend any such matter
purporting to affect the security of this Mortgage and will pay all costs and
damages arising because of such action.
5.11 EMINENT DOMAIN. Any award of damages in connection with any
--------------
condemnation or similar actions in regard to said Property, or any part thereof,
shall be: (i) paid directly to Mortgagee and shall be retained by Mortgagee or
released to Mortgagor by Mortgagee; or (ii) paid directly to Mortgagor; all in
accordance with Section 8.02 of the Credit Agreement.
5.12 SUBROGATION. To the extent that any sums advanced by Mortgagee are
-----------
used to pay any outstanding lien, charge or prior encumbrance against the
Property, such sums shall be deemed to have been advanced by Mortgagee at the
request of Mortgagor and Mortgagee shall be subrogated to any and all rights and
liens held by any owner or holder of such outstanding liens, charges and prior
encumbrances, regardless of whether said liens, charges or encumbrances are
released.
5.13 DUE ON SALE. If Mortgagor shall be voluntarily, or involuntarily,
-----------
divested of title or possession of any Property, by merger or otherwise, or
shall lease, sell, convey, further encumber or in any other manner voluntarily
or involuntarily alienate any of its interest in any of the Property, or shall
enter into an agreement to do any of the foregoing, other than as permitted
herein, or in the Credit Agreement, any indebtedness or obligation secured
hereby, irrespective of the maturity dates expressed in any notes evidencing the
same, shall at the option of Mortgagee, and upon the giving of any notice which
may be required under the Credit Agreement, immediately become due and payable.
5.14 PARTIAL OR LATE PAYMENT. By accepting payment of any sum secured
-----------------------
hereby after its due date, Mortgagee does not waive its right either to require
prompt payment, when due, of all other sums so secured or to declare default, as
herein provided, for failure to so pay.
5.15 RIGHT OF MORTGAGEE TO APPEAR. If, during the existence of this
----------------------------
Mortgage, there be commenced or pending any suit or action affecting the
Property, or any part thereof, or the title thereto, or if any adverse claim for
or against the Property, or any part thereof, be made or asserted, Mortgagee
(unless such suit, action or claim is being contested in good faith by Mortgagor
and Mortgagor shall have established and maintained adequate reserves in
accordance with generally accepted accounting principles for the full payment
and satisfaction of such suit or action if determined
19
adversely to Mortgagor), may appear or intervene in the suit or action and
retain counsel therein and defend same, or otherwise take such action therein as
they may be advised, and may settle or compromise same or the adverse claim; and
in that behalf and for any of the purposes may pay and expend such sums of money
as the Mortgagee may deem to be necessary and Xxxxxxxxx shall reimburse
Mortgagee for such sums expended, together with accrued interest thereon, at the
Default Rate which is defined in the Credit Agreement.
5.16 EXCULPATION; INDEMNIFICATION.
----------------------------
(a) Mortgagee shall not directly or indirectly be liable to Mortgagor
or any other person as a consequence of (i) the exercise of the rights, remedies
or powers granted to Mortgagee in this Mortgage (unless the loss is caused by
the gross negligence or willful misconduct of Mortgagee); (ii) the failure or
refusal of Mortgagee to perform or discharge any obligation or liability of
Mortgagor under any agreement related to the Real Property or under this
Mortgage; or (iii) any loss sustained by Mortgagor or any third party resulting
from Mortgagee's failure to lease the Property, or any portion thereof, after a
Default or from any other act or omission of Mortgagee in managing the Property
after a Default (unless the loss is caused by the gross negligence or willful
misconduct of Mortgagee) and no such liability shall be asserted against or
imposed upon Mortgagee, and all such liability is hereby expressly waived and
released by Mortgagor. It is agreed by Xxxxxxxxx that the liability waived and
released by Mortgagor pursuant to the preceding sentence shall include any
liability arising from or caused by the sole, joint, active, or passive,
concurrent or contributing, negligence or fault of Mortgagee or its agents, and
even though such liability is based upon the strict liability of Mortgagee or
its agents.
(b) Xxxxxxxxx agrees to and does hereby jointly and severally
indemnify, protect, defend and save harmless Mortgagee and each of the Banks and
their respective directors, trustees, officers, employees, agents, attorneys and
shareholders (individually an "Indemnified Party" and collectively the
"Indemnified Parties") from and against any and all losses, damages, expenses or
liabilities of any kind or nature from any investigations, suits, claims,
demands or other proceedings, including reasonable counsel fees incurred in
investigating or defending such claim, suffered by any of them and caused by,
relating to, arising out of, resulting from, or in any way connected with this
Mortgage, any of the Property, or Mortgagee's exercise or enforcement of any
rights or remedies which it may have hereunder; provided, however, Xxxxxxxxx
shall not be obligated to indemnify, protect, defend or save harmless an
Indemnified Party if, and to the extent, the loss, damage, expense or liability
was caused by (a) the gross negligence or wilful misconduct of such Indemnified
Party, or (b) the breach of this Mortgage or any other
20
Loan Document by such Indemnified Party or the breach of any laws, rules or
regulations by such Indemnified Party (other than those breaches of laws arising
from any Borrower's default). In case any action shall be brought against any
Indemnified Party based upon any of the above and in respect to which indemnity
may be sought against Mortgagor, Mortgagee shall promptly notify Mortgagor in
writing, and Xxxxxxxxx shall assume the defense thereof, including the
employment of counsel selected by Xxxxxxxxx and reasonably satisfactory to
Mortgagee, the payment of all costs and expenses and the right to negotiate and
consent to settlement. Upon reasonable determination made by an Indemnified
Party that such counsel would have a conflict representing such Indemnified
Party and Mortgagor, the applicable Indemnified Party shall have the right to
employ, at the expense of Mortgagor, separate counsel in any such action and to
participate in the defense thereof. Mortgagor shall not be liable for any
settlement of any such action effected without their consent, but if settled
with Xxxxxxxxx's consent, or if there be a final judgment for the claimant in
any such action, Xxxxxxxxx agrees to indemnify, defend and save harmless such
Indemnified Parties from and against any loss or liability by reason of such
settlement or judgment. In the event that any Person is adjudged by a court of
competent jurisdiction not to have been entitled to indemnification under this
Section 5.16, it shall repay all amounts with respect to which it has been so
adjudged. If and to the extent that the indemnification provisions contained in
this Section 5.16 are unenforceable for any reason, the Mortgagor hereby agrees
to make the maximum contribution to the payment and satisfaction of such
obligations that is permissible under applicable law. The provisions of this
Section 5.16 shall survive the termination of this Mortgage and the repayment of
the Secured Obligations.
5.17 RELEASES, EXTENSIONS, MODIFICATIONS AND ADDITIONAL SECURITY. Without
-----------------------------------------------------------
notice to or the consent, approval or agreement of any persons or entities
having any interest at any time in the Property or in any manner obligated under
the Secured Obligations ("Interested Parties"), Mortgagee may, from time to
time, release any person or entity from liability for the payment or performance
of any Secured Obligation, take any action or make any agreement extending the
maturity or otherwise altering the terms or increasing the amount of any Secured
Obligation, or accept additional security or release all or a portion of the
Property and other security for the Secured Obligations. None of the foregoing
actions shall release or reduce the personal liability of any of said Interested
Parties, or release or impair the priority of the lien of this Mortgage upon the
Property.
5.18 RIGHT OF INSPECTION. Mortgagee, its agents and employees, may enter
-------------------
the Real Property at any reasonable time, upon reasonable advance notice, for
the purpose of inspecting the Real Property and ascertaining Xxxxxxxxx's
compliance with the terms hereof.
21
ARTICLE 6. DEFAULT PROVISIONS
6.1 DEFAULT. For all purposes hereof, the term "Default" shall mean the
-------
existence of any Event of Default as defined by Section 7.01 of the Credit
Agreement.
6.2 RIGHTS AND REMEDIES. At any time after Default, Mortgagee shall have
-------------------
all the following rights and remedies (in addition to (and without limiting) any
rights and remedies that are available hereunder, or under applicable law):
(a) With or without notice, to declare all Secured Obligations
immediately due and payable;
(b) With or without notice, and without releasing Mortgagor from any
Secured Obligation, and without becoming a mortgagee in possession, to cure any
breach or Default of Mortgagor and, in connection therewith, to enter upon the
Real Property and do such acts and things as Mortgagee deems necessary or
desirable to protect the security hereof, including, without limitation: (i) to
appear in and defend any action or proceeding purporting to affect the security
of this Mortgage or the rights or powers of Mortgagee; (ii) to pay, purchase,
contest or compromise any encumbrance, charge, lien or claim of lien which, in
the sole judgment of Mortgagee, is or may be senior in priority to this
Mortgage, the judgment of Mortgagee being conclusive as between the parties
hereto; (iii) to obtain insurance; (iv) to pay any premiums or charges with
respect to insurance required to be carried under the Loan Documents; and (v) to
employ counsel, accountants, contractors and other appropriate persons;
(c) To commence and maintain an action or actions in any court of
competent jurisdiction to foreclose this Mortgage or to obtain specific
enforcement of the covenants of Mortgagor hereunder, and Xxxxxxxxx agrees that
such covenants shall be specifically enforceable by injunction or any other
appropriate equitable remedy and that for the purposes of any suit brought under
this subparagraph, Mortgagor waives the defense of laches and any applicable
statute of limitations;
(d) To apply to a court of competent jurisdiction for and obtain
appointment of a receiver of the Real Property as a matter of strict right and
without regard to the adequacy of the security for the repayment of the Secured
Obligations, the existence of a declaration that the Secured Obligations are
immediately due and payable, or the filing of a notice of default, and Xxxxxxxxx
hereby consents to such appointment;
(e) To enter upon, possess, manage and operate the Real Property or
any part thereof, to take and possess all documents, books, records, papers and
accounts of Mortgagor or the then owner of the Real Property, to make,
terminate, enforce or modify Leases
22
of the Real Property upon such terms and conditions as Mortgagee deems proper,
to make repairs, alterations and improvements to the Real Property as necessary,
in Mortgagee's sole judgment, all to protect or enhance the security hereof;
(f) To execute a written notice of such Default and of its election to
cause the Real Property to be sold to satisfy the Secured Obligations. As a
condition precedent to any such sale, Mortgagee shall give, post and record such
notices as Illinois law then requires. When the minimum period of time required
after such notices has elapsed, Mortgagee, without notice to or demand upon
Mortgagor except as required by law, shall sell the Real Property at the time
and place of sale fixed by it in the notice of sale, at one or several sales,
either as a whole or in separate parcels and in such manner and order, all as
Mortgagee in its sole discretion may determine, at public auction to the highest
bidder for cash, in lawful money of the United States, payable at time of sale.
Neither Mortgagor nor any other person or entity other than Mortgagee shall have
the right to direct the order in which the Real Property is sold. Subject to
requirements and limits imposed by law, Mortgagee may from time to time postpone
sale of all or any portion of the Real Property by public announcement at such
time and place of sale. Mortgagee shall deliver to the purchaser at such sale a
deed conveying the Real Property or portion thereof so sold, but without any
covenant or warranty, express or implied. The recitals in the deed of any
matters or facts shall be conclusive proof of the truthfulness thereof. Any
person, including Mortgagee or Mortgagor may purchase at the sale;
(g) To resort to and realize upon the security hereunder and any other
security now or later held by Mortgagee concurrently or successively and in one
or several consolidated or independent judicial actions or lawfully taken non-
judicial proceedings, or both, and to apply the proceeds received upon the
Secured Obligations all in such order and manner as Mortgagee determines in its
sole discretion;
(h) Upon sale of the Real Property pursuant to the power of sale
granted herein or at any judicial or non-judicial foreclosure, Mortgagee may
credit bid (as determined by Mortgagee in its sole and absolute discretion) all
or any portion of the Secured Obligations. In determining such credit bid,
Mortgagee may, but is not obligated to, take into account all or any of the
following: (i) appraisals of the Real Property as such appraisals may be
discounted or adjusted by Mortgagee in its sole and absolute underwriting
discretion; (ii) expenses and costs incurred by Mortgagee with respect to the
Real Property prior to foreclosure; (iii) expenses and costs which Mortgagee
anticipates will be incurred with respect to the Real Property after
foreclosure, but prior to resale, including, without limitation, costs of
structural reports and other due diligence, costs to carry the Real Property
prior to resale, costs of resale (e.g. commissions, attorneys' and
23
paralegals' fees, and taxes), costs of any hazardous materials clean-up and
monitoring, costs of deferred maintenance, repair, refurbishment and retrofit,
costs of defending or settling litigation affecting the Real Property, and lost
opportunity costs (if any), including the time value of money during any
anticipated holding period by Mortgagee; (iv) declining trends in real property
values generally and with respect to properties similar to the Real Property;
(v) anticipated discounts upon resale of the Real Property as a distressed or
foreclosed property; (vi) the fact of additional collateral (if any), for the
Secured Obligations; and (vii) such other factors or matters that Mortgagee (in
its sole and absolute discretion) deems appropriate. In regard to the above,
Xxxxxxxxx acknowledges and agrees that: (w) Mortgagee is not required to use any
or all of the foregoing factors to determine the amount of its credit bid; (x)
this Section does not impose upon Mortgagee any additional obligations that are
not imposed by law at the time the credit bid is made; (y) the amount of
Mortgagee's credit bid need not have any relation to any loan-to-value ratios
specified in the Loan Documents or previously discussed between Mortgagor and
Mortgagee; and (z) Mortgagee's credit bid may be (at Mortgagee's sole and
absolute discretion) higher or lower than any appraised value of the Real
Property.
(i) The rights and remedies of Mortgagee upon the occurrence of
one or more Defaults (whether such rights and remedies are conferred by statute,
by rule of law, by this Mortgage, by any Loan Document, as defined in the Credit
Agreement, or otherwise) may be exercised by Mortgagee, in the sole discretion
of Mortgagee, either alternatively, concurrently, or consecutively in any order.
The exercise by Mortgagee of any one or more of such rights and remedies shall
not be construed to be an election of remedies nor a waiver of any other rights
and remedies Mortgagee might have unless, and limited to the extent that,
Mortgagee shall so elect or so waive by an instrument in writing delivered to
Mortgagor. Without limiting the generality of the foregoing, to the extent that
this Mortgage covers both Real Property and Personal Property, Mortgagee may, in
the sole discretion of Mortgagee, either alternatively, concurrently, or
consecutively in any order:
(i) proceed as to both the Real Property and Personal
Property in accordance with Mortgagee's rights and remedies in respect of the
Real Property; or
(ii) proceed as to the Real Property in accordance with
Mortgagee's rights and remedies in respect of the Real Property and proceed as
to the Personal Property in accordance with Mortgagee's rights and remedies in
respect of the Personal Property.
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If Mortgagee should elect to proceed as to both the Real Property and Personal
Property collateral in accordance with Mortgagee's rights and remedies in
respect to the Real Property:
(i) all, or any portion of, the Real Property and all, or any
portion of, the Personal Property may be sold, in the manner and at the time(s)
and place(s) provided in this Mortgage, in one lot, or in separate lots
consisting of any combination or combinations of Real Property and Personal
Property, as the Mortgagee may elect, in the sole discretion of Mortgagee.
(ii) Xxxxxxxxx acknowledges and agrees that a disposition of the
Personal Property collateral in accordance with Mortgagee's rights and remedies
in respect of Real Property, as hereinabove provided, is a commercially
reasonable disposition of said collateral.
If Mortgagee should elect to proceed as to the Personal Property collateral in
accordance with Mortgagee's rights and remedies with respect to personal
property, Mortgagee shall have all the rights and remedies conferred on a
secured party by the UCC.
6.3 APPLICATION OF PROCEEDS. All sums received by Mortgagee under Section
----------------------- -------
6.2 or Section 4.5, shall be applied in payment of the Secured Obligations in
--- -----------
the order set forth by Section 7.03 of the Credit Agreement; provided, however,
-------- -------
Mortgagee shall have no liability for funds not actually received by Xxxxxxxxx.
6.4 NO CURE OR WAIVER. Neither Mortgagee's nor any receiver's entry upon
-----------------
and taking possession of all or any part of the Real Property, nor any
collection of rents, issues, profits, insurance proceeds, condemnation proceeds
or damages, other security or proceeds of other security, or other sums, nor the
application of any collected sum to any Secured Obligation, nor the exercise or
failure to exercise of any other right or remedy by Mortgagee or any receiver
shall cure or waive any breach, Default or notice of default under this
Mortgage, or nullify the effect of any notice of default or sale (unless all
Secured Obligations then due have been paid and performed and Mortgagor has
cured all other defaults), or impair the status of the security, or prejudice
Mortgagee in the exercise of any right or remedy, or be construed as an
affirmation by Mortgagee of any tenancy, lease or option or a subordination of
the lien of this Mortgage.
6.5 PAYMENT OF COSTS, EXPENSES AND ATTORNEY'S AND PARALEGALS' FEES.
--------------------------------------------------------------
Mortgagor agrees to pay to Mortgagee immediately and upon demand all reasonable
costs and expenses incurred by Mortgagee in connection with the exercise of the
rights and remedies provided for herein and/or in any of the other Loan
Documents (including, without limitation, court costs, appraisal fees and
reasonable attorneys' and paralegals' fees, whether incurred in litigation or
not, and all whether internal costs, external costs or both) with
25
interest from the date such amounts are demanded hereunder until said sums have
been paid, at the Default Rate set forth by the Credit Agreement.
6.6 POWER TO FILE NOTICES AND CURE DEFAULTS. Mortgagor hereby irrevocably
---------------------------------------
appoints Mortgagee and its successors and assigns, as its attorney-in-fact,
which agency is coupled with an interest, (a) to execute and/or record any
notices of completion, cessation of labor, or any other notices that Mortgagee
deems appropriate to protect Mortgagee's interest, (b) upon the issuance of a
deed pursuant to the foreclosure of this Mortgage or power of sale granted
herein, or the delivery of a deed in lieu of foreclosure, to execute all
instruments of assignment or further assurance with respect to the Leases and
Payments in favor of the grantee of any such deed, as may be necessary or
desirable for such purpose, (c) to prepare, execute and file or record financing
statements, continuation statements, applications for registration and like
papers necessary to create, perfect or preserve Mortgagee's security interests
and rights in or to any of the Personal Property and any other property or
interests securing the payment and the performance of the Secured Obligations,
and (d) upon the occurrence of an event, act or omission which, with notice or
passage of time or both, would constitute a Default, Mortgagee may perform any
obligation of Mortgagor hereunder; provided, however, that: (i) Mortgagee as
-------- -------
such attorney-in-fact shall only be accountable for such funds as are actually
received by Mortgagee; and (ii) Mortgagee shall not be liable to Mortgagor or
any other person or entity for any failure to act under this Section.
ARTICLE 7. MISCELLANEOUS PROVISIONS
7.1 ADDITIONAL PROVISIONS. The Loan Documents contain or incorporate by
---------------------
reference the entire agreement of the parties with respect to matters
contemplated herein and supersede all prior negotiations. The Loan Documents
grant further rights to Mortgagee and contain further agreements and affirmative
and negative covenants by Mortgagor which apply to this Mortgage and to the
Property and such further rights and agreements are incorporated herein by this
reference.
7.2 MERGER. No merger shall occur as a result of Mortgagee's acquiring
------
any other estate in, or any other lien on, the Property unless Mortgagee
consents to a merger in writing.
7.3 WAIVER OF MARSHALLING RIGHTS. Mortgagor, for itself and for all
----------------------------
parties claiming through or under Mortgagor, and for all parties who may acquire
a lien on or interest in the Property, hereby waives all rights to have the
Property and/or any other property which is now or later may be security for any
Secured Obligation ("Other Property") marshaled upon any foreclosure of this
Mortgage or on a foreclosure of any Other Property. Mortgagee
26
shall have the right to sell, and any court in which foreclosure proceedings may
be brought shall have the right to order a sale of, the Real Property and any or
all of the Personal Property or Other Property as a whole or in separate
parcels, in any order that Mortgagee may designate.
7.4 WAIVER OF RIGHTS OF REDEMPTION AND REINSTATEMENT. Mortgagor, for
------------------------------------------------
itself and for all parties claiming through or under Mortgagor, and for all
parties who may acquire a lien on or interest in the Property, hereby waives any
and all rights of redemption and reinstatement under law and under any order or
decree of foreclosure of this Mortgage, and all such rights of redemption and
reinstatement of Mortgagor and of all other persons, are and shall be deemed to
be hereby waived to the full extent permitted by the provisions of the
applicable law.
7.5 EXERCISE OF REMEDIES. Notwithstanding any of the terms or provisions
--------------------
contained in this Mortgage (or in any of the other Loan Documents), if at any
time after the occurrence of a Default under any of the Loan Documents (but
prior to the time (if any) that said Default has been cured to the satisfaction
of Mortgagee), Mortgagee has commenced to exercise one or more of its remedies
provided for herein (or provided in any of the other Loan Documents or available
at law or in equity), Mortgagee will not be precluded from continuing to
exercise all of its rights and remedies upon said Default (notwithstanding the
fact that Xxxxxxxxx may have cured, attempted to cure or be in the process of
curing said Default). It is the intention of the parties hereto that (to the
extent permitted by law) once Mortgagee has commenced to exercise one or more of
its rights or remedies (upon a Default), said Default cannot be cured, unless
Mortgagee expressly agrees in writing to accept said cure and to cease the
exercise of said rights and remedies.
7.6 RULES OF CONSTRUCTION. The term: (i) "Real Property" means all and
---------------------
any part of the Real Property and any interest in the Real Property; (ii)
"Personal Property" means all and any part of the Personal Property and any
interest in the Personal Property; and (iii) "Property" means all and any part
of the Property and any interest in the Property.
7.7 SUCCESSORS IN INTEREST. The terms, covenants, and conditions herein
----------------------
contained shall be binding upon and inure to the benefit of the successors and
assigns of the parties hereto; provided, however, that this section does not
-------- -------
waive or modify any restrictions on transfer contained herein or in any of the
other Loan Documents.
7.8 GOVERNING LAW. XXXXXXXXX AGREES THAT THIS MORTGAGE, THE CREDIT
-------------
AGREEMENT, THE NOTES AND ALL OTHER RELATED DOCUMENTS ARE TO BE CONSTRUED,
GOVERNED AND ENFORCED IN ACCORDANCE WITH THE INTERNAL
27
LAWS OF THE STATE OF ILLINOIS WITHOUT REGARD TO CONFLICT OF LAW PRINCIPLES.
7.9 INCORPORATION. Exhibit A is incorporated into this Mortgage by this
------------- ---------
reference.
7.10 NOTICES. All notices, reports, demands, requests and other
-------
communications authorized or required under this Mortgage to be given to
Mortgagor or Mortgagee, shall be given in the manner and to the addresses
specified in the Credit Agreement for the giving of notices. Mortgagor shall
forward to Mortgagee, without delay, any notices, letters or other
communications delivered to the Real Property or to Mortgagor naming Mortgagee,
"Lender" or any similar designation as addressee, or which could reasonably be
deemed to affect the ability of Mortgagor to perform its obligations to
Mortgagee under the Notes, the Credit Agreement or any other Loan Documents.
7.11 MAXIMUM INDEBTEDNESS; FUTURE ADVANCES. This Mortgage shall secure not
-------------------------------------
only existing indebtedness but also such future advances, whether such advances
are obligatory or to be made at the option of Mortgagee, or otherwise, to the
same extent as if such future advances were made on the date of the execution of
this Mortgage.
7.12 SEVERABILITY. If any provision or obligation under this Mortgage
------------
shall be determined by a court of competent jurisdiction to be invalid, illegal
or unenforceable, that provision shall be deemed severed from the Mortgage and
the validity, legality and enforceability of the remaining provisions or
obligations shall remain in full force as though the invalid, illegal or
unenforceable provision had never been a part of the Mortgage.
7.13 TIME. Time is of the essence of each and every term of this Mortgage.
----
7.14 NO INTEREST IN GAMING LICENSE. The terms of this Mortgage
-----------------------------
notwithstanding, it is specifically provided that no interest is granted
hereunder in, or to, the Gaming License which is granted to Mortgagor by the
Illinois Gaming Board (the "Gaming
28
License") and that the Gaming License is specifically excluded from the
Property, as defined herein.
IN WITNESS WHEREOF, Xxxxxxxxx has executed this Mortgage as of the day and
year set forth above.
XXXXXXXXX XXXXXX DECLARES AND ACKNOWLEDGES THAT IT HAS RECEIVED, WITHOUT
CHARGE, A TRUE COPY OF THIS MORTGAGE.
"MORTGAGOR"
EMPRESS CASINO JOLIET
CORPORATION, an
Illinois corporation
By /s/ Xxxx Xxxxxxxx
-------------------------
Name Xxxx Xxxxxxxx
-----------------------
Title /s/ VP/CFO
----------------------
29
STATE OF ILLINOIS )
) ss
COUNTY OF COOK )
I, the undersigned, a Notary Public in and for said County, in said State,
hereby certify that Xxxx Xxxxxxxx, whose name as Vice President - CFO of EMPRESS
CASINO JOLIET CORPORATION, an Illinois 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 30th day of June, 1998.
/s/ Xxxxxx Xxxxx
_________________________________
[Seal] Notary Public
My commission expires: 10/14/00
----------
Xxxxxx Xxxxx
_________________________________
(Printed Name)
Notary Public in and for the
State of Illinois
This instrument was prepared by Xxxxx X. Xxxxxx, Esq., Xxxxxxxxx & Xxxxxx,
LLC, 000 Xxxxxxx Xxx, Xxxxx X, Xxxx, Xxxxxx 00000; (000) 000-0000.
30
