Prepared by. Record and Return to:
Exhibit 10.9
Prepared by. Record and
Return to:
Xxxxxx
Xxxxxx, Esquire
Fox
Rothschild, LLP
000 Xxxxx
Xxxxx, Xxxxxxxx #0
Xxxxxxxxxxxxx,
Xxx Xxxxxx 00000
Parcel Id
Nos.: Al, X0X, X0X, X0X0, X0X0 XXX X0X0
XXXXXXXX AND SECURITY
AGREEMENT
THIS
MORTGAGE AND SECURITY AGREEMENT ("Mortgage") is made on September 19,
2007, between DIRT MOTOR SPORTS, INC. d/b/a WORLD RACING GROUP, INC.,
with an address of 0000 Xxxx Xxxxx Xxxxxxxxx, Xxxxx X, Xxxxxxx, Xxxxx Xxxxxxxx
00000 (the "Mortgagor") and NORTH SOUND LEGACY INTERNATIONAL, LTD, NORTH SOUND
LEGACY INSTITUTIONAL FUND LLC, VICIS CAPITAL MASTER FUND, L.P., X.X. XXXXXXXXX,
TOWBDSf CAPITAL PARTNERS I, L.P., BASSO FUND LTDy BASSO MULTI-STRATEGY HOLDING
FUND LTD., XXXXXXXX INVESTMENT MASTER FUND LTD., TRELLUS PARTNERS, LP, TRELLUS
PARTNERS II, LP, TRELLUS OFFSHORE FUND LIMITED, TRELLUS SMALL CAP OPPORTUNITY
FUND, LP, TRELLUS SMALL CAP OPPORTUNITY OFFSHORE FUND LIMITED, and IROQUOIS
MASTER FUND LTD, with an address of c/x Xxxxxxx Hill Partners, 000 Xxxxxxx
Xxxxxx, 0xx Xxxxx,
Xxx Xxxx, XX 00000 (collectively, the "Mortgagee").
WHEREAS,
Mortgagor has borrowed certain funds from the Mortgagee pursuant to the Note
Purchase Agreement dated as of the date hereof (the "Note Purchase Agreement";
capitalized terms used herein and not defined herein have the meanings set forth
in the Note Purchase Agreement) as evidenced by the Notes in the aggregate
principal sum of FIFTEEN MILLION DOLLARS ($15,000,000) (collectively, the
"Loan") upon such terms and conditions as therein provided;
WHEREAS,
Mortgagor and Mortgagee agree and acknowledge that the total value of the
Mortgaged Property (as hereinafter defined) is equal to THREE MILLION DOLLARS
($3,000,000) and that the amount secured by this Mortgage is hereby limited to
said amount.
The
Mortgagor has agreed to enter into this mortgage (the "Mortgage") to grant to
Mortgagee a mortgage lien on and security interest in and to the Mortgaged
Property (as hereinafter defined) as security for the payment and performance of
all Obligations (as hereinafter defined) of the Mortgagor to the Mortgagee
hereunder and under the Note Purchase Agreement, the Notes and the other
Transaction Documents (collectively, the "Loan Documents"), and intending to be
legally bound, Mortgagor does hereby grant, sell, bargain, mortgage, assign,
transfer, pledge and convey to the Mortgagee, and does hereby grant a security
interest (the "Security Interest") to ..the Mortgagee in Mortgagor's right,
title, and interest in and to the following described p^perty, whether now owned
or hereafter acquired (collectively, the "Mortgaged Property"):
a. all of
the tract or parcel of land and premises known described in Exhibit "A" attached
hereto and made a part of hereof;
-1-
Lernerville
Speedway:
Mailing
Address: 000 Xxxxx Xxxx Xxxx, Xxxxxx, XX 00000 Total of 109.126
acres.
All those
certain pieces or parcels of land comprising the Lemerville Speedway Property,
individually known as Tax Parcels Al, A1B, A1F, A1F1, A1F2 and A1F3 of Tax Map
1F75, situate in Winfield Township and Buffalo Township, Xxxxxx County,
Commonwealth of Pennsylvania, the overall boundary of said parcels being more
fully bounded and described as follows:
Beginning
at a point in the centerline of North Pike Road (S.R.0356) where said line is
intersected by the southerly line of land now or formerly of Sarver Development,
L.L.C. (as recorded at instrument # 2003 09110041415); thence, away from said
road and along said line of Sarver Development, LX.C.:;Sf&9°
30' 00" E, 259.35 feet to a point; thence, along the easterly line of said
Sarver property and properties now or formerly of Xxxxx and Xxxxxxx
Xxxxx,
Xxxxx Xxxxxx,
and Xxxxx X. and Xxxx X. Rrumpe and an apparent 20
foot right of way, N 00° 53' 33" E, 829.13 feet to a point; thence, along the
southerly line of land now or formerly of Xxxxx X. arid Xxxxxxx Xxxxxxx, the
southerly line of Xxxxxxxx Xxxxx, 00 feet wide, land now or formerly of F.
Xxxxxxxxx XxXxxxxxxx, Xxxxx and Xxxxxxx XxXxxxxxxx, along the southerly line of
a 20 foot right of way as called for in D.B.V. 978, Page 85 and southerly line
of other land of Xxxxxxx X. and Xxxxx Xxxxxxxx, S 89° 37' 43" E, 1983.17 feet to
a point in the center of the former Pennsylvania Railroad right of way, (now a
"rails to trails" path); thence along said former railroad right of way
centerline S 39° 13' 38" E, 210.75 feet to a point of tangency; thence by same
in a southerly direction by a curve to the right having a radius of 859.02 feet,
an arc distance of 705.47 feet to a point at or near the center of a stream;
thence, away from former railroad right of way and along or near said center of
stream the following bearings and distances:
S50° 30'
00" W, 109.83 feet; S 33° 30' 00" W, 240.90 feet; S 17° 15'00" W, 242.55 feet;
S10°51' 11"E, 144.33 feet; S 22° 30' 00" W, 469.42 feet; S23°30' 00" E, 346.50
feet; S29° 00' 00" E, 179.85 feet;
To a
point; thence, along the northerly line of land now or formerly of Community
Development Corporation of Xxxxxx County, N 89° 45' 00" W, 1,056.48 feet to a
point; thence, along the easterly line of other land now and formerly of Sarver
Development, L.L.C., N 17° 58' 00" W, 300.00 feet to a point thence, along
northerly line of same N 89° 45' 00" W, 763.95 feet to the centerline of
aforementioned North Pike Road (S.R. 0356); thence along said centerline the
following bearings and distances:
N 18° 30'
00" W, 403.72 feet;
N 22° 30'
00" W, 327.39 feet;
N 18° 15'
00" W, 330.00 feet;
N 18° 00'
00" W, 284.43 feet to the Point and Place of Beginning.
Containing
a total area of 4,753,521.75 square feet or 109.126 acres.
-2-
b. all
improvements, material, property rights and interests including but not limited
to:
i. all
buildings and other improvements now or hereafter located on the Mortgaged
Property (the "Improvements");
ii. all
streets, lanes, alleys, passages, ways, water courses, easements and
appurtenances whatsoever thereunto belonging in or in any way made appurtenant
hereafter, and the reversions and remainder, with respect thereto;
iii. all
present and future fixtures attached or to be attached to the Mortgaged
Property;
iv. all
building materials, building machinery and building equipment delivered on site
to the Mortgaged Property during the course of, or in connection with, the
construction of, or reconstruction of, or remodeling of any building and
improvements from time to time during the term of this Mortgage;
v. all
awards or payments, including interest thereon, which may be made with respect
to the Mortgaged Property, whether from the exercise of the right of eminent
domain (including any transfer made in lieu of the exercise of said right), or
for any other injury to or decrease in the value of the Mortgaged Property,
including without limitation, all awards or payments of estimated compensation,
all damages to the Premises or Improvements resulting from any taking, all
machinery and equipment dislocation expenses, all settlement amounts and
apportionment of taxes;
vi. all
insurance policies covering the Mortgaged Property and all proceeds of any
unearned premiums on any such insurance policies includmg, without limitation,
the right to receive and apply the proceeds of any insurance judgments, or
settlements made in lieu thereof, for damage to the Mortgaged
Property;
vii. all
future leases and other agreements affecting the use and occupancy of the
Mortgaged Property now or hereafter entered into, and ;all licenses, permits and
agreements with or from all boards, public utilities, agencies, departments,
governmental or otherwise, relating to or affecting the Mortgaged Property or
the use and occupancy thereof, whether heretofore or hereafter issued or
executed;
viii. all
income, rents, issues, profits, revenues, royalties, proceeds, credits, deposits
and options arising out of, under or relating to the use and operation of the
Mortgaged Property and all leases, chattels real, subleases, subtenancies,
occupancy agreements, licenses or concessions affecting the Mortgaged Property,
including, without limitation, the right, power and authority given to and
conferred upon Mortgagor under any assignment of leases to collect and apply
such income, rents, issues, profits and proceeds;
ix. all
general intangibles arising from, used or held in connection with, or relating
to the Mortgaged Property or the ownership, use, occupancy, enjoyment,
operation, management, development or improvement thereof, including, without
limitation, all governmental permits relating to construction, all subdivision
maps and applications therefor, all subdivision public reports and applications
therefor, all architectural and engineering drawings, plans and specifications,
soil tests, feasibility studies, engineering reports, environmental, building
and other permits, certificates of occupancy, construction, management and other
contracts, franchises, licenses and all names under or by which
the Mortgaged Property or any present or future improvements on the Mortgaged
Property may at any time be operated or known, and all rights to carry on
business under any such names, or any variant thereof, and all trademarks and
goodwill in; any way relating to the Mortgaged Property.
-3-
TOGETHER WITH
all substitutions therefore, all additions (including without limitation all
cash and dividends and other distributions and all rights, privileges and
options relating to, declared or granted in connection with property) and all
proceeds thereof and products of each of the foregoing in any form
whatsoever.
HABENDUM
CLAUSE
TO HAVE AND
TO HOLD all of the Mortgaged Property unto Mortgagee and its successors and
assigns, forever, upon the terms and conditions herein set forth.
AND IT IS
AGREED AND UNDERSTOOD that until an Event of Default, (as such term is defined
herein), shall have occurred and the Required Mortgagees (as hereinafter
defined) have elected to foreclose as detailed herein, Mortgagor may retain
possession of the Mortgaged Property.
COVENANTS. REPRESENTATIONS
AND WARRANTIES
IT IS
HEREBY COVENANTED by the parties hereto that the Mortgaged Property is to be
held arid applied subject to the further terms herein set forth; and Mortgagor,
for itself and its successors and Assigns, hereby covenants, agrees, represents
and warrants with and to Mortgagee as follows:
1. Title to Mortgaged
Property. Mortgagor represents, warrants, covenants and agrees Mortgagor
shall at all times remain the legal and beneficial owner of good and marketable
indefeasible title in fee simple absolute to all of the Mortgaged Property.;
Mortgagor has full power and authority to grant the Mortgaged Property as
provided in this Mortgage and will forever warrant and defend its grant made
herein against any and all claims and demands whatsoever, except as specifically
provided in this Mortgage.
2. Definition of
Obligations. This Mortgage secures the payment and performance of the
following indebtedness, liabilities and obligations (collectively referred to
herein as the "Obligations"):
a. the
Obligations of the Mortgagor set forth in the Note Purchase Agreement, the Notes
and the other Transaction Documents; and
b. all other
sums due or to become due under the Notes and this Mortgage including all
extensions, renewals, modifications or reamortizations of the debt evidenced by
the Notes, all increases or additions to such debt, and all other debts,
obligations and liabilities of every kind and character of Mortgagor now or
hereafter existing in favor of Mortgagee whether such debts, obligations or
liabilities be direct or indirect, primary or secondary, joint or several, fixed
or contingent, and whether originally payable to Mortgagee or to a third party
and subsequently acquired by Mortgagee.
3. Responsibility and
Preservation of Mortgaged Property; Compliance with Laws. Mortgagor
assumes all liability and responsibility in connection #ith ail Mortgaged
Property acquired by Mortgagor arid the obligation of Mortgagor to pay all
OhUg^o^shall in no way be affected or diminished by reason of the fact that any
such Mortgaged Property may be lost, destroyed, stolen, damaged or for any
reason whatsoever unavailable to Mortgagor. Mortgagor shall keep the Mortgaged
Property protected and in good order, condition and repair at all times and
shall not: (a) commit, permit or suffer any waste, damage, disfigurement or
injury to or upon the Mortgaged Property or arty portion thereof; or (b)
demolish, destroy, or remove any buildings, fixtures, structures or improvements
thereafter erected on or annexed or affixed to the Mortgaged Property. Mortgagor
further agrees and
covenants to comply with and perform at its own expense any and all present or
future, ordinary o|||pprdinary, foreseen or unforeseen laws, regulations,
Ordinances or requirements concerning the Mortga£e'cf Property or any portion
thereof, or the use thereof, or the streets adjacent thereto, of the federal,
state or municipal governments, or of any departments, subdivisions, bureaus or
offices thereof, or of any governmental, public or quasi-public authorities now
created or hereafter created or of the National Board of Fire Underwriters, any
local Board of Fire Underwriters, or other body having similar functions, or of
any liability, fire or other insurance company having policies outstanding with
respect to the Mortgaged Property or any part thereof (including, without
limitation, all laws, regulations, ordinances and requirements relating to
environmental issues and hazardous substances) (said laws, regulations,
ordinances and requirements hereafter collectively referred to as the
"Laws").
-4-
4. Taxes. Mortgagor
shall pay, before the same becomes delinquent, all taxes, assessments and
charges of every nature (collectively, "Taxes") and by whomever assessed that
may now or hereafter be levied or assessed against, or that by reason of
nonpayment may become a lien upon, the Mortgaged Property, or any part thereof,
and, if requested by Mortgagee, Mortgagor shall, prior to the date each Tax
would become delinquent by reason of nonpayment, submit to Mortgagee official
Tax payment receipts or other evidence acceptable to Mortgagee of the due and
punctual payment thereof. Mortgagor shall not claim on demand or be entitled to
any credit on account of the Obligations for any part of the taxes paid with
respect to the Mortgaged Property or any part thereof and no deduction shall
otherwise be made or claimed from the taxable value of the Mortgaged Property,
or any part thereof, by reason of this Mortgage.
5. : Insurance. In the
event Mortf^S'xxxxx
improve the Mortgaged Property thereby constructing buildings or other
improvements thereon, then Mortgagor shall carry adequate insurance against all
liability and hazards, including without limitation, fire and casualty insurance
for the mortgaged property as are usually carried by entities engage in the same
or a similar business situated as Mortgagor. In the event of a casualty loss,
Mortgagor shall utilize the insurance proceeds to rebuild the premises or apply
the proceeds to the outstanding mortgaged sums due pursuant to the .terms of
this mortgage to Satisfy any outstanding indebtedness hereunder. The aforesaid
liability insurance shall be in an amount satisfactory to Mortgagee and shall
name Mortgagee as an additional insured.
6. Tenant's Compliance with
Laws. Mortgagor shall cause all future tenants, if any, under any leases
to comply, with all Laws affecting the Mortgaged Property.
7. Right to Inspect and
Cure. The Mortgagee shall, upon reasonable advance written notice to
Mortgagor, have the right to conduct or have conducted by its agents or
contractors, such inspections as the Mortgagee shall deem necessary or advisable
from time to time.
8. Estoppel Certificate.
Mortgagor will certify, by a writing duly acknowledged, to Mortgagee or to any
proposed assignee of this Mortgage, the amount of principal and interest then
owing on the Obligations and whether, to Mortgagor's best knowledge, any offsets
or defenses exist against the Obligations, within five (5) days after a request
ther^fo^s received by Mortgagor.
9. Prohibition on
Transfers. Mortgager" shall not at any time (i) sell, assign, transfer,
convey, lease with option of sale, or dispose of all or any part of or interest
in the Mortgaged Property, or (ii) suffer or permit transfer by operation of law
of the Mortgaged Property, or any part thereof or interest therein, without the
prior written consent thereto of Mortgagee unless the then remaining balance due
under this Mortgage and Notes is satisfied. In the event that the ownership of
the Mortgaged Property or any portion thereof becomes vested in a person other
than Mortgagor, Mortgagee may, without notice to Mortgagor, deal with such
successor or successors in interest with reference to this Mortgage, and the
indebtedness hereby secured, in the same manner as with Mortgagor, without in
any way vitiating or discharging Mortgagor's liability hereunder or upon the
indebtedness hereby secured. No sale of the Mortgaged Property shall operate to
release, discharge, modify, change or affect the original liability of Mortgagor
herein, either in whole or in part. Any violation of the foregoing limitations
shall be deemed an Event of Default hereunder.
-5-
10. Reports and Notices.
Mortgagor will furnish Mortgagee with copies of reports and notices pertaining
to the Mortgaged Property or any portion thereof, its value or its operations,
and which are submitted by Mortgagor to, or received by Mortgagor from, any
legally constituted authority having jurisdiction of operations conducted on the
Mortgaged Property, including, but without limitation, any licensing agency, of
which deal with any imposition, condemnation of all or any portion of the
Mortgaged Property or default under any mortgage or security agreement
encumbering the Mortgaged Property or any portion thereof.
11. Further Assurances.
Mortgagor wilfexecute, acknowledge and deliver, at Mortgagor's own cost and
expense, all such further acts, deeds, conveyances, assignments, notices of
assignment, transfers and assurances as Mortgagee shall form time to time
reasonably require for the better granting, bargaining, selling, assigning and
conveying to Mortgagee of the Mortgaged Property.
12. Authorization to Make
Payments. Mortgagor hereby authorizes Mortgagee or its
designee:
a. To pay
all taxes or other governmental charges, with all interest costs and charges
accruing thereon, which may at any time be or become a lien on the Mortgaged
Property, or any portion thereof;
b. To effect
any insurance required hereunder and to pay the premiums thereon; provided,
however, that none of the above provisions shall be construed as obligatory upon
Mortgagee or as making it liable for loss, damage or injury which may result
from the non-insurance of the Mortgaged Property, or any portion thereof, or
other failure;
c. To incur
or pay any claim, lien, encumbrance or other expense in protecting its rights
hereunder and the security hereby granted;
d. To do
such things as may, in the judgment of Mortgagee, be necessary or advisable in
order to perform and observe any present agreement affecting or restricting the
use of, or pertaining to, the Mortgaged Property, or any portion thereof,
including, without limitation, the making of such repairs and the taking of such
steps as Mortgagee deems reasonably necessary to prevent or cure waste and the
payment of any reasonable sums and the mcurring of reasonable expenses,
including attorneys' fees; and
e. To
appear or participate in any action or proceeding purporting to affect the
security hereof, it being understood that Mortgagee shall have no obligation,
expressed or implied, to advance any funds, incur any expense or liability, or
take any action authorized by this provision or any other provision of this
Mortgage.
13. Definition of Event of
Default. The occurrence of any one or more of the following events shall
constitute an Event of Default hereunder:
a. The
failure of Mortgagor to make any payments required under the Notes or this
Mortgage;
or
b. Mortgagor
shall fail to perform or observe any other term, covenant, warranty, obligation,
provision, representation, or agreement contained in this Mortgage or any other
Obligation;
c. Any
representation, statement, or warranty made in this Mortgage shall prove to have
been false or incorrect in any material respect when made;
-6-
e. The
holder of any lien shall commence foreclosure proceedings against the Mortgaged
Property or any part thereof;
f. Mortgagor
shall be insolvent, or shall file a voluntary petition in bankruptcy or a
Voluntary petition seeking to effect a plan or other arrangement with
creditors;
g. Mortgagor
shall be adjudicated bankrupt, or shall make an assignment for the benefit of
creditors, or shall apply for or consent to the appointment of any receiver or
trustee for itself, or for the Mortgaged Property or any part thereof, or for
all or any substantial portion of its other property, or a suit shall be
instituted against Mortgagor seeking to establish bankruptcy, insolvency,
arrangement, debt adjustment, receivership, sequestration, liquidation or
attachment of the Mortgagor, or of the Mortgaged Property or any part thereof,
or of all or any substantial portion of its other property which is not
dismissed within sixty (60) days thereafter;
h. The
Mortgaged Property' or'any part thereof is taken or damaged by eminent domain,
alteration on the grade of any street, or other injury to or decrease in the
value of the Mortgaged Property, by reason of any public of quasi-public
improvement or condemnation proceeding or any other similar manner
("Condemnation"), regarding such condemnation or proposed
condemnation;
i. The
Mortgaged Property is materially damaged by any fire or casualty not
covered
by insurance sufficient to provide for the material restoration
thereof;
j. The
occurrence of an "Event of Default" under any Loan Document.
14. Rights and Remedies on
Default.
a. Acceleration. Upon
the occurrence and during the continuance of any Event of Default, in addition
to any other rights, powers or remedies conferred herein or by operation of law,
the Required Mortgagees, in their sole judgment and discretion, may declare the
then unpaid principal balance secured by this Mortgage (the "Principal Balance"'),
the accrued interest thereon and any other accrued but unpaid portion of the
Obligations to be, and they shall thereupon forthwith become, immediately due
and payable without presentment, demand, protest or other notice of any kind,
all of which are hereby expressly waived by Mortgagor. "Required Mortgagees"
means any individual Mortgagee or group of Mortgagees where the sum of the
principal amount of the Notes then outstanding held by such Mortgagee or
Mortgagees aggregates at least sixty percent (60%) of the total principal amount
of all of the Notes then outstanding.
-7-
b. Foreclosure and Sale.
If an Event of Default shall occur and be continuing, Mortgagee shall have the
right and option to take possession of the Mortgaged Property and/or proceed
with foreclosure and to sell, to the extent and in the: manner
permitted by applicable law, all or any portion of the Mortgaged Property at one
or moresiles, as an entirety or in parcels, at such place or places, in such
manner and upon such notice as Si|yf;be required by applicable law, or, in the
absence of any such requirement, as Mortgagee may deem appropriate, and to make
conveyance to the purchaser or purchasers. Nothing contained in this Section 14(b) shall
be construed so as to limit in any way Mortgagee's rights to sell the Mortgaged
Property, or any portion thereof, by private sale if, and to the extent that,
such private sale is permitted under the laws of the applicable jurisdiction or
by public or private sale after entry of a judgment by any court of competent
jurisdiction so ordering. Mortgagor hereby irrevocably appoints Mortgagee to be
the attorney-in-fact of Mortgagor (coupled with an interest) and in the name and
on behalf of Mortgagor to execute and deliver any deeds, transfers, conveyances,
assignments, assurances and notices which Mortgagor ought to execute and
deliver, and to do and perform any other acts or things which Mortgagor ought to
do and perform under the covenants herein contained and, generally, to use the
name of Mortgagor in the exercise of any of the powers hereby conferred on
Mortgagee. At any such sale: (a) whether made under the power herein contained
of any other legal enactment, or by virtue of any judicial proceedings or any
other legal right, remedy or recourse, it shall not be necessary for Mortgagee
to have physically present, or to have constructive possession of, the Mortgaged
Property (Mortgagor hereby covenanting and agreeing to deliver to Mortgagee any
portion of the Mortgaged Property not actually or constructively possessed by
Mortgagee immediately upon demand by Mortgagee) and the title to and right of
possession of any such property shall pass to the purchaser thereof as
completely as if the same had been actually present and delivered to purchaser
at such sale; (b) each instrument of conveyance executed by Mortgagee shall
contain a general warranty of title, binding upon .Mortgagor and its successors
and assigns; (c) each and every recital contained in any instrument of con^l^e
made by Mortgagee shall conclusively establish the truth and accuracy of the
matters recited therein; including, without limitation, nonpayment and/or
nonperformance of the Obligations and advertisement and conduct of such sale in
the manner provided herein and otherwise required by applicable law; (d) any and
all prerequisites to the validity thereof shall be conclusively presumed to have
been performed; (e) the receipt of Mortgagee, or of such other Person or officer
making the sale, shall be a sufficient discharge to the purchaser for its
purchase money and neither such purchaser nor its assigns or personal
representatives shall thereafter be obligated to see to the application of such
purchase money, or be in any way answerable for any loss, misapplication or
non-application thereof; (f)to the fullest extent permitted by applicable law,
Mortgagor shall be completely and irrevocably divested of all of its right,
title, interest, estate, claim and demand whatsoever, either at law or in equity
(including any statutory or common law right of redemption, which is hereby
waived to the fullest extent permitted by applicable law), in and to the
property sold in any such event, and such sale shall be a perpetual bar, both at
law and in equity, against Mortgagor and any and all other Persons claiming by,
through or under Mortgagor; and (g) to the extent and under such circumstances
as are permitted by applicable law, Mortgagee may be a purchaser at any such
sale, and shall have the right, after paying or accounting for all costs of said
sale or sales, to credit the amount of the then unpaid Obligations to the amount
of its bid (in the order of priority set forth in Section 15 hereof) in
lieu of cash payment. Each remedy provided in this instrument is distinct from
and cumulative with all other rights and remedies provided hereunder or afforded
by applicable law or equity, and may be exercised concurrently, independently or
successively, in any order whatsoever.
c. Judicial Foreclosure.
If any Event of Default shall occur and be continuing, Mortgagee shall have the
right and power to proceed by a suit or suits in equity or at law, whether for
the specific performance of arty covenant or agreement herein contained or in
aid of the execution of any power herein granted, or for any foreclosure
hereunderjor.for the sale of the Mortgaged Property under the judgment or decree
of any court or courts 6£-co^npetent jurisdiction, or for the enforcement of any
Other appropriate legal or equitable remedy.
d. Mortgagee's Agents.
If any Event of Default shall occur and be continuing, Mortgagee may appoint or
delegate any one or more persons as agent to perform any act or acts necessary
or incident to arty sale held by Mortgagee, including the posting of notices and
the conduct of sale, but in the name and on behalf of Mortgagee.
-8-
e. Receiver. If any
Event of Default shall occur and be continuing, Mortgagee may apply for and
obtain as a matter of right and without notice to Mortgagor, which notice is
hereby expressly waived by Mortgagor, the appointment of a receiver to collect
the rents of the Mortgaged Property and to preserve the security hereof, either
before or after any foreclosure sale or the sale of the Mortgaged Property under
the order of a court or courts of competent jurisdiction or under executory or
other legal process, without regard to the value of the Mortgaged Property as
security for the amount then due to Mortgagee, or the solvency of any entity or
entities, person or persons primarily or secondarily liable for the payment of
such amounts; the rents of the Mortgaged Property, in any such event, having
heretofore been assigned to Mortgagee pursuant to this Mortgage as additional
security for the payment of the Obligations secured hereby. Any money advanced
by Mortgagee in connection with any such receivership shall be a demand
obligation (which obligation Mortgagor hereby expressly promises to pay) owing
by Mortgagor to Mortgagee and shall be subject to the provisions of Section 15 hereof.
f. Uniform Commercial Code'
Remedies. Mortgagee shall have all of the rights, remedies and recourses
with respect to the personalty and the fixtures afforded to it by the applicable
UCC, including, without limitation, the right to take possession of the
personalty and the fixtures or any part thereof, and to take such other measures
as Mortgagee may deem necessary for the care, protection and preservation of the
personalty and the fixtures, in addition to, and not in limitation of, the other
rights, remedies and recourses afforded by this Mortgage or any other Loan
Document.
g. Mortgagees Right to
Cure. Mortgagee shall provide Mortgagor with ten (10) days to cure a
monetary Event of Default. Mortgagee shall provide Mortgagor with a thirty (30)
day time period to cure a non-monetary Event of Default, which period shall
begin the date Mortgagor knows or should have known of the existence of such
Event of Default, provided, however, that if the cure of the non-monetary Event
of Default requires more than thirty (30) days, Mortgagee shall extend the cure
period to forty-five (45) days so long as Mortgagor has commenced the cure
within the thirty (30) day period, and is diligently pursuing the
same.
h. Required Consent of
Mortgagee Prior to Election of Remedies. Should an Event of Default
continue beyond any and all applicable notice, grace and cure periods as
detailed above, Mortgagor shall not proceed with any remedies detailed in this
section or otherwise available at law or in equity without first obtaining
written consent from the R|quhM Mortgagees. Upon receipt of written consent for
the Required Mortgagees, Mortgagee may pursue'.ah^and all rights detailed herein
or otherwise available at law or in equity.
15. Application of
Proceeds. After me occurrence and during the continuance of an Event of
Default, the proceeds of any sale of and any other amounts generated by the
holding, leasing, operating or other use of the Mortgaged Property shall be
applied by Mortgagee (or the receiver, if one is appointed), to the extent that
funds are so available therefrom, in accordance with the provisions of the Note
Purchase Agreement or, if not so provided, then in the following order of
priority, except to the extent otherwise required by applicable
law:
(a) first, to
the payment of the reasonable and necessary costs and expenses of taking
possession of the Mortgaged Property and of holding, using, leasing, repairing,
improving the same, including reasonable (i) receivers' fees, (ii) court costs,
(iii) attorneys' and accountants' fees, (iv) costs of advertisement and title
search fees, and (V) the
payment of any and all Impositions, liens, security interests or other rights,
titles or interests equal or superior to the lien and security interest of this
Mortgage (except those to which the Mortgaged Property has been sold subject to
and without in any way implying Mortgagee's prior consent to the creation
thereof);
-9-
(b) second,
to the payment of all amounts other than the Principal Balance and accrued but
unpaid interest which may be due to Mortgagee hereunder, under the Note Purchase
Agreement, the Notes or the other Loan Documer)t^,:t§gltbter with interest
thereon as provided herein;
(c) third, to
the payment of the Obligations in such order and manner as Mortgagee determines
in its sole discretion; and
(d) fourth,
to Mortgagor or as otherwise required by any governmental requirement. Mortgagor
shall be liable for any deficiency remaining.
16. Remedies Cumulative.
The parties agree and acknowledge that the Mortgagee shall not be permitted to
exercise any remedies under this Mortgage until such time as it obtains consent
from the Required Mortgagees as detailed above. No remedy herein conferred upon
Mortgagee is intended to be exclusive of any other remedy, but every such remedy
shall be cumulative and shall be in addition to every other remedy herein
conferred or now or hereafter existing at law or in equity or by
statute.
17. Delay Not a Waiver.
No delay or omission of Mortgagee in exercising any right or remedy arising upon
the happening of any Event of Default shall impair any right or remedy or shall
be construed to be a Waiver of any such Event of Default or an acquiescence
therein; and every right and remedy given by this Mortgage to Mortgagee may be
exercised upon consent from the Required Mortgagees as detailed above from time
to time and as often as may be deemed expedient by Required
Mortgagees.
18. Headings. The Section
and Clause headings herein are for convenience only and are not to be deemed a
part of the agreement between the parties.
19. Counterparts. This
Mortgage may be executed in any number of counterparts, each of which shall be
deemed to be an original and all of which taken together shall constitute but
one and the same instrument.
20. Severability. If any
term or provision of this Mortgage or the application thereof to any person or
circumstances shall, to any extent, be invalid or unenforceable, the remainder
of this Mortgage, of the application of such term or provision to persons or
circumstances other than those as to which it is held invalid or unenforceable,
shall not be affected thereby^aiid;each term
and provision of the Mortgage shall be Valid and be enforced to the fullest
extent permitted by law.
21. Successors and
Assigns. The word "Mortgagee" as used hefein shall be construed as
descriptive of Mortgagee named herein, its successors and assigns. The word
"Mortgagor" as used herein shall be construed as descriptive of Mortgagor named
herein and of any subsequent owner or owners of the Mortgaged Property or any
part thereof. All of the covenants and agreements of Mortgagor herein contained
shall be binding upon and assumed by the successors and assigns of
Mortgagor.
22. Release. Upon full
payment of the Obligations and all other amounts secured by this Mortgage, which
full payment is acknowledged by Mortgagee to be satisfaction in full of the Loan
secured by this Mortgage, this Mortgage shall be null and void; otherwise it
shall remain in full force and effect. In the event that this Mortgage shall,
pursuant to the terms of this Section become null and void, Mortgagee shall,
within a reasonable time after receipt of the written request of Mortgagor
therefore, at Mortgagor's sole expense, execute and deliver to Mortgagor a
satisfaction of this Mortgage in recordable form and the appropriate termination
statements as provided for and by the Uniform Commercial Code.
23. Security Agreement.
This Mortgage shall constitute a security agreement to the extent that any of
the Property constitute fixtures or other personal property, and Mortgagee shall
have all the rights of a secured party under the Uniform Commercial Code as
amended from time to time.
-10-
24. Governing Law. This
Mortgage is construed and enforced by and under the laws of the state in which
the Mortgage Property.
25. Notices. All notices,
requests, demands, directions and other communications which may or are required
to be given, served or sent by either Mortgagee or Mortgagor to the other shall
be given, served or sent by nationally recognized overnight courier or certified
mail, return receipt requested, to the address as set forth in the first
paragraph of this document unless a party notifies the other of a different
address.
26. Payment Of Costs And
Expenses. Mortgagor shall immediately reimburse the Mortgagee for all
costs and expenses which the Mortgagee may incur by reason of, or arising out
of, or in connection with: (a) any Event of Default; (b) any action or
proceeding in which the Mortgagee may appear in or commence to protect,
preserve, exercise or enforce their rights, remedies or security interests under
this Mortgage, or under any document or instrument evidencing the Obligations
secured by this Mortgage, or which otherwise relates to the Mortgaged Property,
including all appeals therefrom; (c) the performance of any act authorized or
permitted hereunder; and (d) the exercise of any other rights or
remedies under this Mortgage, or under any document or instrument evidencing the
Obligations secured by this Mortgage, or otherwise relating to the protection of
the Mortgagee's rights and interest hereunder or under any document or
instrument evidencing the Obligations secured hereby, whether or not a suit or
proceeding is instituted. Such costs and expenses shall include, without
limitation, the fees, charges and expenses of attorneys, expert witnesses, costs
and expenses of searching records, examining title and determining rights in,
title to, or the; Value of, the Mortgaged or the boundaries thereof, including
title company charges,
title insurance premiums, publication costs, and other charges
incident thereto, all
whether or not a suit or proceeding is instituted, provided that such
reimbursable costs and expenses shall not include any costs and expenses
incurred by the Mortgagees as a result of its gross negligence or willful
misconduct. Mortgagor agrees to and shall pay, immediately and without demand,
all sums so expended by the Mortgagee, together with interest from the date of
expenditure, at the highest interest rate then payable under the documents and
instruments evidencing the Obligations, all of which sums plus interest shall
constitute additional indebtedness secured by this Mortgage.
27. Amendment. Any term,
covenant, agreement or condition of this Mortgage may be amended, or compliance
therewith may be waived (either generally or in a particular instance and either
retroactively or prospectively) by one or more substantially concurrent written
instruments signed by Mortgagor and the Required Mortgagees.
28. ACKNOWLEDGEMENT OF RECEIPT
OF COPY. MORTGAGOR HEREBY DECLARES AND ACKNOWLEDGES THAT IT HAS RECEIVED,
WITHOUT CHARGE, A TRUE COPY OF THIS MORTGAGE.
29. Construction. This
Mortgage shall be interpreted and construed with the terms of the Note executed
of even date herewith.
-11-
| WITNESS: | MORTGAGOR: |
| DIRT MOTOR SPORTS, INC. | |
| By: /s/ Xxx Xxxxx | By: /s/ Xxxxx Xxxxxx |
| Name: Xxx Xxxxx | Name: Xxxxx Xxxxxx |
| Title: Executive Vice President | |
| MORTGAGEE: | |
|
IROQUOIS MASTER FUND LTD
By: /s/ Xxxxxxxx X.
Xxxxxx
Name: Xxxxxxxx X.
Xxxxxx
Title: General
Counsel
TRELLUS SMALL CAP OPPORTUNITY OFFSHORE
FUND LTD
By: /s/ Xxxx Xxxxx
Name: Xxxx Xxxxx
Title:
President
TRELLUS PARTNERS LP
By: /s/ Xxxx Xxxxx
Name: Xxxx Xxxxx
Title: President
TRELLUS
PARTNERS II LP
By: /s/ Xxxx Xxxxx
Name: Xxxx Xxxxx
Title:
President
TRELLUS OFFSHORE FUND LTD
By: /s/ Xxxx Xxxxx
Name: Xxxx Xxxxx
Title: President
TRELLUS SMALL CAP
OPPORTUNITY FUND LP
By: /s/ Xxxx Xxxxx
Name: Xxxx Xxxxx
Title:
President
|
-12-
|
XXXXXXXX INVESTMENT MASTER
FUND LTD
By: /s/ Xxxxx
Xxxxxxxxx
Name: Xxxxx
Xxxxxxxxx
Title:
President
VICIS CAPITAL MASTER FUND
L.P.
By: Vicis Capital
LLC
By: /s/ Xxxxx X.
Xxxxxx
Name: Xxxxx X.
Xxxxxx
Title: Chief Financial
Officer
BASSO MULTI-STRATEGY HOLDING
FUND LTD.
By: /s/ Xxxxxx X.
Xxxxxxx
Name: Xxxxxx X.
Xxxxxxx
Title: Authorized
Signatory
BASSO FUND LTD.
By: /s/ Xxxxxx X.
Xxxxxxx
Name: Xxxxxx X.
Xxxxxxx
Title: Authorized
Signatory
NORTH SOUND LEGACY INSTITUTIONAL
FUND LLC
By:
North Sound Capital LLC; Manager
By: /s/ Xxxxxx X.
XxXxxxx
Name: Xxxxxx X.
XxXxxxx
Title: Chief Investment
Officer
NORTH SOUND LEGACY INTERNATIONAL
LTD.
By: North Sound
Capital LLC; Investment Advisor
By: /s/ Xxxxxx X.
XxXxxxx
Name: Xxxxxx X.
XxXxxxx
Title: Chief Investment
Officer
X.X. XXXXXXXXX, TOWBIN CAPITAL
PARTNERS I, L.P.
By: /s/ Xxxxxx
Xxxx
Name: Xxxxxx Xxxx
Title: A Managing Member of the
GP
|
-00-
XXXXX XX Xxxxxxxx
XXXXXX XX Xxxxxxxxx
Xx this 19th day of September, 2007, before me the
undersigned, personally appeared Xxxxx Xxxxxx, Executive Vice President of Dirt
Motor Sports, Inc., who I am satisfied is the person who signed the foregoing
instrument, and he did acknowledge that he signed, sealed and delivered the same
as his voluntary act and deed.
/s/ Xxxxxxxx Xxxxxx
Name: Xxxxxxxx Xxxxxx
XXXXX XX Xxx Xxxx
XXXXXX XX Xxx Xxxx
Xx this 1st day of November, 2007, before me the
undersigned, personally appeared Xxxxxxxx X. Xxxxxx, who I am satisfied
is the person who signed the foregoing instrument, and he did acknowledge that
he signed, sealed and delivered the same as his voluntary act and deed.
/s/ Xxxxxxxx Xxxxx
Name: Xxxxxxxx Xxxxx
STATE OF New York
COUNTY OF New York
On this 29th day of October, 2007, before me the
undersigned, personally appeared Xxxx
Xxxxx, who I am satisfied is the person who signed the foregoing
instrument, and he did acknowledge that he signed, sealed and delivered the same
as his voluntary act and deed.
/s/ Xxxxxx Xxxxx
Name: Xxxxxx Xxxxx
STATE OF New York
COUNTY OF Nassau
On this 24th day of September , 2007, before me the
undersigned, personally appeared Xxxxx
X. Xxxxxx, who I am satisfied is the person who signed the foregoing
instrument, and he did acknowledge that he signed, sealed and delivered the same
as his voluntary act and deed.
/s/ Xxxxxxxxxxxx Xxxxxxx
Name: Xxxxxxxxxxxx Xxxxxxx
-00-
XXXXX XX
Xxxxxxxxxxx
XXXXXX XX Xxxxxxxxx
Xx this 20th day of September , 2007, before me the
undersigned, personally appeared Xxxxxx
X. Xxxxxxx, who I am satisfied is the person who signed the foregoing
instrument, and he did acknowledge that he signed, sealed and delivered the same
as his voluntary act and deed.
/s/ Xxxxx Xxxxxxxxx
Name: Xxxxx Xxxxxxxxx
STATE
OF Connecticut
COUNTY OF Fairfield
On this 24th day of September , 2007, before me the
undersigned, personally appeared Xxxxxx
X. XxXxxxx, who I am satisfied is the person who signed the foregoing
instrument, and he did acknowledge that he signed, sealed and delivered the same
as his voluntary act and deed.
/s/ Xxxxxxxxx Xxxxxx
Name: Xxxxxxxxx Xxxxxx
STATE
OF New York
COUNTY OF New York
On this 24th day of September , 2007, before me the
undersigned, personally appeared Xxxxxx
Xxxx, who I am satisfied is the person who signed the foregoing
instrument, and he did acknowledge that he signed, sealed and delivered the same
as his voluntary act and deed.
/s/ Xxxxx Xxxxxxx
Name: Xxxxx Xxxxxxx
-15-
CERTIFICATE OF RESIDENCE
I certify that the address of the Mortgagee named in this Mortgage is:
000 Xxxxxxxxx Xxx, XX, XX 00000
By: /s/ Xxxxxxxx X. Xxxxxx
Name:
Xxxxxxxx X. Xxxxxx
Title:
General Counsel
000 Xxxxxxx Xxx, 0xx, Xxx Xxxx, XX 00000
By: /s/ Xxxx Xxxxx
Name: Xxxx Xxxxx
Title: President
c/x Xxxxxxxx Capital, LLC, 000 X 00xx Xx, XX,
XX, 00000
By: /s/ Xxxxx Xxxxxxxxx
Name: Xxxxx Xxxxxxxxx
Title: President
000 X 00xx Xx, Xxxxx 00 Xxxxx 000, Xxx Xxxx,
XX
By: /s/ Xxxx Xxxxx
Name: Xxxx Xxxxx
Title: Member
c/o Basso Capital Management, 0000 X Xxxx Xx,
Xxxxxxxx, XX 00000
By: /s/ Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title: Authorized Signatory
c/o North Sound Capital LLC, 00 Xxxxxxxxx Xxxx,
Xxxxxxxxx, XX 00000
By: /s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: General
Counsel
000 Xxxxxxx Xxx, Xxx Xxxx, XX 00000
By: /s/ Xxxxxx Xxxx
Name: Xxxxxx Xxxx
Title: A Managing Member of the
GP
-00-
Xxxxxxxxxx
Xxxxxxxx:
Mailing
Address: 000 Xxxxx Xxxx Xxxx, Xxxxxx, XX 00000 Total of 109.126
acres.
All those
certain pieces or parcels of land comprising the Lemerville Speedway Property,
individually known as Tax Parcels Al, A1B, A1F, A1F1, A1F2 and A1F3 of Tax Map
1F75, situate in Winfield Township and Buffalo Township, Xxxxxx County,
Commonwealth of Pennsylvania, the overall boundary of said parcels being more
fully bounded and described as follows:
Beginning
at a point in the centerline of North Pike Road (S.R..0356) where said line is
intersected
by the southerly line of land now or formerly of Sarver Development, L.L.C.
(as
recorded at instrument # 2003 09110041615); thence, away from said road and
along said line
of Sarver Development, L.L.C. S 89° 30' 00" E, 259.35 feet to a point; thence,
along the
easterly line of said Sarver property and properties now or formerly of Xxxxx
and
Xxxxxxx Xxxxx, Xxxxx Xxxxxx, and Xxxxx X. and Xxxx X. Xxxxxx and an apparent 20
foot
right of way, N 00° 53' 33" E, 829.13 feet to a point; thence, along the
southerly line of land
now or formerly of Xxxxx X. and Xxxxxxx Xxxxxxx, the southerly line of Franklin
rive, 16
feet wide, land now or formerly of F. Xxxxxxxxx XxXxxxxxxx, Xxxxx and Xxxxxxx
XxXxxxxxxx,
along the southerly line of a 20 foot right of way as called for in D.B.V.
978, Page
85 and southerly line of other land of Xxxxxxx X. and Xxxxx Xxxxxxxx, S 89°
37>
43» e,
1983.17 feet to a point in the center of the former Pennsylvania Railroad right
of way,
(now a "rails to trails" path); thence along said former railroad right of way
centerline
S 39° 13' 38" E, 210.75 feet to a point of tangency; thence by same in a
southerly
direction by a curve to the right having a radius of 859.02 feet, an arc
distance of 705.47
feet to a point at or near the centef of a stream; thence, away from former
railroad
right of way and along or nea* s|:M:;center
of stream the following bearings and distances: '
'
S50° 30'
00" W, 109.83 feet; S 33° 30' 00" W, 240.90 feet; S 17° 15' 00" W, 242.55 feet;
S 10° 51' 11" E, 144.33 feet; S 22° 30'00" W, 469.42 feet; S 23° 30' 00" E,
346.50 feet; S 29° 00' 00" E, 179.85 feet;
To a
point; thence, along the northerly line of land now or formerly of Community
Development Corporation of Xxxxxx County, N 89° 45' 00" W, 1,056.48 feet to a
point; thence, along the easterly line of other land now and formerly of Sarver
Development, L.L.C, N 17° 58' 00" W, 300.00 feet to a point thence, along
northerly line of same N 89° 45' 00" W, 763.95 feet to the centerline of
aforementioned North Pike Road (S.R. 0356); thence along said centerline the
following bearings and distances:
N 18° 30'
00" W, 403.72
feet;
N 22° 30'
00" W, 327.39 feet; N 18° 15' 00" W, 330.00 feet;
N 18° 00'
00" W, 284.43 feet to the Point and Place of Beginning.
Containing
a total area of 4,753,521.75 square feet or 109.126
acres.
