Prepared by, Record and Return To: Andrew Kaplan, Esquire Fox Rothschild, LLP
Exhibit
10.10
Prepared by, Record and Return
To:
_________________________
Xxxxxx Xxxxxx, Esquire
Fox Rothschild, LLP
000 Xxxxx Xxxxx, Xxxxxxxx
#0
Xxxxxxxxxxxxx, Xxx Xxxxxx
00000
THIS MORTGAGE AND SECURITY AGREEMENT
(“Mortgage”) is made on September 28, 2007, between DIRT MOTOR SPORTS, 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,
TOWBIN CAPITAL PARTNERS I, L.P., BASSO FUND LTD, 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 up to 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 ONE HUNDRED THOUSAND DOLLARS ($3,100,000) 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 property, 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 ;
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”);
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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;
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iii.
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all
present and future fixtures attached or to be attached to the Mortgaged
Property;
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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 including, 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.
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.
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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 and 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.
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3. Responsibility and
Preservation of Mortgaged Property; Compliance with
Laws. Mortgagor assumes all liability and responsibility in
connection with all Mortgaged Property acquired by Mortgagor and the obligation
of Mortgagor to pay all Obligations 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 any 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 or extraordinary, foreseen or unforeseen laws,
regulations, ordinances or requirements concerning the Mortgaged 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. 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 Mortgager shall 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
therefor is received by Mortgagor.
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9. Prohibition on
Transfers. Mortgagor 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.
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, or 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 will execute, 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 incurring 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.
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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;
d. Mortgagor
shall transfer all or a part of the Mortgaged Property in violation of this
Mortgage;
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 or 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.
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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 more sales, as an entirety or in parcels, at such place or places, in
such manner and upon such notice as may 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 or 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
conveyance 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 any covenant
or agreement herein contained or in aid of the execution of any power herein
granted, or for any foreclosure hereunder or for the sale of the Mortgaged
Property under the judgment or decree of any court or courts of competent
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 any sale held by Mortgagee, including
the posting of notices and the conduct of sale, but in the name and on behalf of
Mortgagee.
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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 Required Mortgagees. Upon receipt of written
consent for the Required Mortgagees, Mortgagee may pursue any and all rights
detailed herein or otherwise available at law or in equity.
15. Application of
Proceeds. After the 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);
(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 Documents, together with interest thereon
as provided herein;
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(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, or 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, and 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 herein 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.
-9-
24. Governing
Law. This Mortgage shall be governed, construed and enforced
by and under the laws of the state in which the Mortgage Property is
located.
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.
[Remainder
of Page Intentionally Left Blank]
-10-
IN WITNESS WHEREOF, Mortgagor and
Mortgagee has executed this Mortgage on the date set forth above.
|
WITNESS:
|
MORTGAGOR:
|
|
DIRT
MOTOR SPORTS, INC.
|
|
|
By:
/s/ Xxx Xxxxx
Name:
Xxx Xxxxx
|
By:
/s/ Xxxxx
Xxxxxx
Name:
Xxxxx Xxxxxx
Title:
Executive Vice President
|
|
|
|
|
WITNESS:
|
MORTGAGEE:
|
|
By:
Name:
|
By:
/s/ Xxxxx
Xxxxxxxxx
Name:
Xxxxx Xxxxxxxxx
Title:
President
|
|
WITNESS: |
IROQUOIS
MASTER FUND LTD.
|
|
By: /s/ X. Xxxxxx
Name: X. Xxxxxx
|
By: /s/
Xxxxxx Xxxxxxxxx
Name: Xxxxxx Xxxxxxxxx
Title: Authorized Signatory
|
|
WITNESS:
|
VICIS CAPITAL MASTER FUND |
| By: /s/ | By: Vicis Capital LLC |
|
WITNESS:
|
TRELLUS PARTNERS, LP |
|
By: /s/ Xxxxxxx X.
Xxxxxx
Name: Xxxxxxx X. Xxxxxx
|
By:
/s/ Xxxx
Xxxxx
Name: Xxxx Xxxxx
Title: President
|
| WITNESS: | TRELLUS PARTNERS II, LP |
|
By:
/s/ Xxxxxxx X.
Xxxxxx
Name: Xxxxxxx X. Xxxxxx
|
By:
/s/ Xxxx
Xxxxx
Name: Xxxx Xxxxx
Title: President
|
| WITNESS: | TRELLUS OFFSHORE FUND LIMITED |
|
By:
/s/ Xxxxxxx X.
Xxxxxx
Name: Xxxxxxx X.
Xxxxxx |
By:
/s/ Xxxx
Xxxxx
Name: Xxxx Xxxxx
Title:
President
|
-11-
| WITNESS: | TRELLUS SMALL CAP OPPORTUNITY FUND, LTP |
| By:
/s/ Xxxxxxx X.
Xxxxxx
Name: Xxxxxxx X. Xxxxxx
|
By:
/s/ Xxxx Xxxxx
Name: Xxxx Xxxxx
Title: President |
| WITNESS: | TRELLUS SMALL CAP OPPORTUNITY FUND LIMITED |
| By:
/s/ Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
|
By:
/s/ Xxxx Xxxxx
Name: Xxxx Xxxxx
Title: President
|
| WITNESS: | BASSO MULTI-STRATEGY HOLDING FUND LTD. |
|
By:
Name:
|
By:
/s/ Xxxxxx X.
Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title: Authorized
Signatory |
| WITNESS: | NORTH SOUND LEGACY INSTITUTIONAL FUND LLC |
| By: North Sound Capital LLC; Manager | |
|
By: /s/ Xxxxxx X. Xxxxx
Name:
Xxxxxx X. Xxxxx
Title: General
Counsel
|
By:
/s/ Xxxxxx X. XxXxxxx
Name: Xxxxxx X. XxXxxxx
Title: Chief Investment Officer
|
| WITNESS: |
NORTH
SOUND LEGACY INTERNATIONAL, LTD.
By: North Sound Capital
LLC, Investment Advisor
|
| By: /s/ Xxxxxx X. Xxxxx
Name:
Xxxxxx X. Xxxxx
Title: General
Counsel
|
By:
/s/ Xxxxxx X. XxXxxxx
Name: Xxxxxx X. XxXxxxx
Title: Chief Investment
Officer
|
| WITNESS: | X.X. Xxxxxxxxx, Towbin Capital Partners I, L.P. |
| By: /s/ Xxxx Xxxxxxxx
Name:
Xxxx Xxxxxxxx
|
By: /s/ Xxxxxx Xxxx
Name:
Xxxxxx Xxxx
Title: A
Managing Member of the GP
|
-00-
XXXXX
XX Xxxxxxxx
XXXXXX XX
Xxxxxxxxx
Xx the 19th
day of September
in the year 2007, before me, the undersigned, personally appeared Xxx
Dreery, personally known to me or proved to me on the basis of
satisfactory evidence to be the individual whose name is subscribed to the
within instrument and acknowledged to me that he executed the same in his
capacity, that by his signature on the instrument, the individual, or the person
on behalf of which the individual acted, executed the instrument, and that such
individual made such appearance before the undersigned in the State of NC
County of Cabarrus.
/s/
Xxxxxxxx Xxxxxx
Xxxxxxxx
Xxxxxx
Notary Public - State of
Oklahoma
STATE OF New
Jersey
COUNTY OF Bergen
On the 15th
day of October
in the year 2007, before me, the undersigned, personally appeared Xxxxx
Xxxxxxxxx, personally known to me or proved to me on the basis of
satisfactory evidence to be the individual whose name is subscribed to the
within instrument and acknowledged to me that he executed the same in his
capacity, that by his signature on the instrument, the individual, or the person
on behalf of which the individual acted, executed the instrument, and that such
individual made such appearance before the undersigned in the State of New
Jersey County of Bergen.
/s/
Xxxxxxx X Xxxxx
Name: Xxxxxxx Xxxx
Xxxxx
Notary Public - State of
New Jersey
XXXXX XX Xxx
Xxxx
XXXXXX XX Xxx
Xxxx
Xx the 26th
day of September
in the year 2007, before me, the undersigned, personally appeared Xxxxxx
Xxxxxxxxx, personally known to me or proved to me on the basis of
satisfactory evidence to be the individual whose name is subscribed to the
within instrument and acknowledged to me that he executed the same in his
capacity, that by his signature on the instrument, the individual, or the person
on behalf of which the individual acted, executed the instrument, and that such
individual made such appearance before the undersigned in the State of NY
County of NY.
/s/
Name:
Notary Public - State of
New York
-00-
XXXXX XX Xxx
Xxxx
XXXXXX XX Xxxxxx
Xx the 24th
day of September
in the year 2007, before me, the undersigned, personally appeared Xxxxx
X. Xxxxxx, personally known to me or proved to me on the basis of
satisfactory evidence to be the individual whose name is subscribed to the
within instrument and acknowledged to me that he executed the same in his
capacity, that by his signature on the instrument, the individual, or the person
on behalf of which the individual acted, executed the instrument, and that such
individual made such appearance before the undersigned in the State of New
York County of Nassau.
/s/
Xxxxxxxxxxxx Xxxxxxx K
Name:
Xxxxxxxxxxxx Xxxxxxx K
Notary Public - State of
New York
XXXXX XX Xxx
Xxxx
XXXXXX XX Xxx
Xxxx
Xx the 27th
day of September
in the year 2007, before me, the undersigned, personally appeared Xxxx
Xxxxx, personally known to me or proved to me on the basis of
satisfactory evidence to be the individual whose name is subscribed to the
within instrument and acknowledged to me that he executed the same in his
capacity, that by his signature on the instrument, the individual, or the person
on behalf of which the individual acted, executed the instrument, and that such
individual made such appearance before the undersigned in the State of New
York County of New York.
/s/ Xxxxxx
Xxxxx
Name: Xxxxxx
Xxxxx
Notary Public - State of
New York
XXXXX XX Xxx
Xxxx
XXXXXX XX Xxx
Xxxx
Xx the 27th
day of September
in the year 2007, before me, the undersigned, personally appeared Xxxx
Xxxxx, personally known to me or proved to me on the basis of
satisfactory evidence to be the individual whose name is subscribed to the
within instrument and acknowledged to me that he executed the same in his
capacity, that by his signature on the instrument, the individual, or the person
on behalf of which the individual acted, executed the instrument, and that such
individual made such appearance before the undersigned in the State of New
York County of New York.
/s/ Xxxxxx
Xxxxx
Name: Xxxxxx
Xxxxx
Notary Public - State of
New York
-00-
XXXXX XX Xxx
Xxxx
XXXXXX XX Xxx
Xxxx
Xx the 27th
day of September
in the year 2007, before me, the undersigned, personally appeared Xxxx
Xxxxx, personally known to me or proved to me on the basis of
satisfactory evidence to be the individual whose name is subscribed to the
within instrument and acknowledged to me that he executed the same in his
capacity, that by his signature on the instrument, the individual, or the person
on behalf of which the individual acted, executed the instrument, and that such
individual made such appearance before the undersigned in the State of New
York County of New York.
/s/ Xxxxxx
Xxxxx
Name: Xxxxxx
Xxxxx
Notary Public - State of
New York
XXXXX XX Xxx
Xxxx
XXXXXX XX Xxx
Xxxx
Xx the 27th
day of September
in the year 2007, before me, the undersigned, personally appeared Xxxx
Xxxxx, personally known to me or proved to me on the basis of
satisfactory evidence to be the individual whose name is subscribed to the
within instrument and acknowledged to me that he executed the same in his
capacity, that by his signature on the instrument, the individual, or the person
on behalf of which the individual acted, executed the instrument, and that such
individual made such appearance before the undersigned in the State of New
York County of New York.
/s/ Xxxxxx
Xxxxx
Name: Xxxxxx
Xxxxx
Notary Public - State of
New York
XXXXX XX Xxx
Xxxx
XXXXXX XX Xxx
Xxxx
Xx the 27th
day of September
in the year 2007, before me, the undersigned, personally appeared Xxxx
Xxxxx, personally known to me or proved to me on the basis of
satisfactory evidence to be the individual whose name is subscribed to the
within instrument and acknowledged to me that he executed the same in his
capacity, that by his signature on the instrument, the individual, or the person
on behalf of which the individual acted, executed the instrument, and that such
individual made such appearance before the undersigned in the State of New
York County of New York.
/s/ Xxxxxx
Xxxxx
Name: Xxxxxx
Xxxxx
Notary Public - State of
New York
-00-
XXXXX XX Xxxxxxxxxxx
XXXXXX XX Xxxxxxxxx
Xx the 24th
day of September
in the year 2007, before me, the undersigned, personally appeared Xxxxxx
X. Xxxxxxx, personally known to me or proved to me on the basis of
satisfactory evidence to be the individual whose name is subscribed to the
within instrument and acknowledged to me that he executed the same in his
capacity, that by his signature on the instrument, the individual, or the person
on behalf of which the individual acted, executed the instrument, and that such
individual made such appearance before the undersigned in the State of CT
County of Fairfield.
/s/ Xxxxx
X Xxxxxxxxx
Name: Xxxxx X
Xxxxxxxxx
Notary Public - State of
Connecticut
XXXXX XX Xxxxxxxxxxx
XXXXXX XX Xxxxxxxxx
Xx the 24th
day of September
in the year 2007, before me, the undersigned, personally appeared Xxxxxx
X. XxXxxxx, personally known to me or proved to me on the basis of
satisfactory evidence to be the individual whose name is subscribed to the
within instrument and acknowledged to me that he executed the same in his
capacity, that by his signature on the instrument, the individual, or the person
on behalf of which the individual acted, executed the instrument, and that such
individual made such appearance before the undersigned in the State of Connecticut
County of Fairfield.
/s/ Xxxxxxxxx
Xxxxxx Xxxxxx
Name:
Xxxxxxxxx Xxxxxx Xxxxxx
Notary Public - State of
Connecticut
XXXXX XX Xxxxxxxxxxx
XXXXXX XX Xxxxxxxxx
Xx the 24th
day of September
in the year 2007, before me, the undersigned, personally appeared Xxxxxx
X. XxXxxxx, personally known to me or proved to me on the basis of
satisfactory evidence to be the individual whose name is subscribed to the
within instrument and acknowledged to me that he executed the same in his
capacity, that by his signature on the instrument, the individual, or the person
on behalf of which the individual acted, executed the instrument, and that such
individual made such appearance before the undersigned in the State of Connecticut
County of Fairfield.
/s/ Xxxxxxxxx
Xxxxxx Xxxxxx
Name:
Xxxxxxxxx Xxxxxx Xxxxxx
Notary Public - State of
Connecticut
-00-
XXXXX XX Xxx
Xxxx
XXXXXX XX Xxx
Xxxx
Xx the 24th
day of September
in the year 2007, before me, the undersigned, personally appeared Xxxxxx
Xxxx, personally known to me or proved to me on the basis of satisfactory
evidence to be the individual whose name is subscribed to the within instrument
and acknowledged to me that he executed the same in his capacity, that by his
signature on the instrument, the individual, or the person on behalf of which
the individual acted, executed the instrument, and that such individual made
such appearance before the undersigned in the State of New
York County of New
York.
/s/ Xxxxx
X. Xxxxxxx
Name: Xxxxx X.
Xxxxxxx
Notary Public - State of
New York
-17-
Exhibit
“A”
Legal
Description of the Mortgaged Property
[See
Attached]
Cayuga
County Fair Speedway:
Mailing
Address: XX Xxx 000 One Speedway Drive - Xxxxxxxxx, XX 00000
Two tax
map parcels as follows:
Tax Map
00, Xxxxx 0, Xxxxxx 14.2 and Tax Map 77, Block 2, Parcel 34.
Said
property is further described as being part of Great Lot No. 54 in the Town of
Brutus, County of Cayuga, State of New York. Located on the northerly side of
XXX Xxxxx 0 l’ just east of the easterly village line of the Village of
Weedsport. Said property contains a total of 46.3 acres of land and is irregular
in shape described as follows:
Easterly
570q- along the northerly side of XXX Xxxxx 00; thence northerly 235%; thence
easterly 170%; thence southerly 235’q-to the northerly side of NYS Route 31;
thence easterly 150’:t: along the northerly side of NYS Route 31; thence
northerly 205’+; thence easterly 132’~- to the easterly boundary
line.
The
easterly boundary line is irregular and extends from the southerly boundary line
as follows:
Northerly
470%; thence easterly 300’ ; thence northerly 930’± to the northerly boundary
line; 1,240 feet, more or less, along its northerly boundary line.
The
westerly boundary line is irregular and extends from the northerly boundary line
as follows:
Southerly
300’+; thence southwesterly 120’±; thence southerly 330’-v~ thence westerly "
700% to the easterly side of Towpath Road; thence southerly 310’± along the
easterly side of Towpath Road; thence easterly 700’:t:; thence southerly 610’~-
to the southerly boundary line at the northerly side of XXX Xxxxx
00:
-18-
Rolling
Wheels Raceway Park:
Mailing
address:
Tax map
parcel: Tax Map 00, Xxxxx 0, Xxxxxx 37.13 -
Said
property is further described as being part of Great Lot No 90 in the Town of
Brutus and Great Lot No. 100 in the Town of Sennett, County of Cayuga, State of
New York. Located on the southerly side of XXX Xxxxx 0 to the easterly side of
Xxxxx Road and the northerly side of Xxxxxxxxx Road. Said property contains a
total of 86.33 acres &land(approximately 53.73 acres are located in the Town
of Brutus and 32.6 acres are located in the Town of Sennett) and is irregular in
shape~ A portion of the property is located north of a Niagra Mohawk Power
Corporation fee ownership and the balance of the property is located south of
the fee ownership.
The
portion located north of the Niagara Mohawk fee ownership has 1,186.99 feet
along its northerly boundary line fronting on the southerly side of NYS Route 5;
380 feet along its easterly boundary line; 1,200 feet along its southerly
boundary line fronting on the northerly side of the Niagara Mohawk Power
Corporation fee right of way and 135, more .or less, along its westerly boundary
line.
The
portion of the property located south of the Niagara Mohawk Power Corporation
right of way has 1,740 feet, more or less, along its northerly boundary line
fronting on the southerly side of the Niagara Mohawk Power Corporation fee right
of way; 2,070 feet, more or less, along its easterly boundary line; 1,999.6
feet, more or less,
along its
southerly boundary line fronting on the northerly side of Xxxxxxxxx
Road.
The
westerly boundary line is irregular and extends from the southerly boundary line
as follows: northerly 672.6+ along the easterly side of Xxxxx Road; thence
easterly 360’±; thence northerly.865’d= to the northerly boundary
line.
The
property has the right to cross and recross the Niagara Mohawk Power Corporation
fee ownership.
