Exhibit 10.12
THIS INSTRUMENT WAS PREPARED BY, AND WHEN RECORDED SHOULD BE RETURNED TO: Xxxxxx
X. Xxxxxxxxx, Xxxxxx & Xxxxxxx LLP, 000 Xxxxx, Xxxxx 0000, Xxx Xxxxxx, Xxxx
00000, (000) 000-0000
MORTGAGE,
LEASEHOLD MORTGAGE,
ASSIGNMENT OF RENTS,
SECURITY AGREEMENT
AND
FIXTURE FINANCING STATEMENT
FROM
PENINSULA GAMING COMPANY, LLC
TO
FIRSTAR BANK OF MINNESOTA, N.A., AS TRUSTEE
NOTICE: This Mortgage secures credit in the amount of $140,000,000. Loans and
advances up to this amount, together with interest, are senior to indebtedness
to other creditors under subsequently recorded and filed mortgages and liens.
This Mortgage contains an after-acquired property clause.
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This Mortgage (the "Shore Mortgage") is made as of July 15, 1999, by
Peninsula Gaining Company, LLC, a Delaware limited liability company (the
"Company"), in favor of Firstar Bank of Minnesota, N.A., as trustee (the
"Trustee") under the Indenture dated as of July 15, 1999 (the "Indenture") among
the Company, Peninsula Gaining Corp., a Delaware corporation, the Trustee and
certain Subsidiary Guarantors, as defined therein.
RECITALS
WHEREAS, the Company is the sole owner of (i) a fee simple interest
(the "Fee Simple Interest") for certain premises located in Dubuque County, Iowa
and more particularly described on Exhibit A attached hereto, and (ii) leasehold
interests (the "Leasehold Interests") created under leases with respect to
certain premises located in Dubuque County, Iowa and more particularly described
on Exhibit B attached hereto (collectively, the "Leases") (such Leasehold
Interests and Fee Simple Interest are hereinafter referred to as the "Real
Property"); and
WHEREAS, pursuant to the Indenture the Company has issued its
12 1/4% Senior Secured Notes due 2006 (together with any replacements thereof as
provided in the Indenture and as the same may be amended or supplemented from
time to time hereafter, the "Notes") in the initial aggregate principal amount
of $71,000,000, subject to increase as provided in the Indenture and maturing on
July 1, 2006. The Indenture provides that to secure performance by the Company
of its obligations under the Indenture, including payment of the Notes, the
Company will execute and deliver this Shore Mortgage to the Trustee. The
Indenture, this Shore Mortgage, the Security Documents (as defined in the
Indenture) and any other document referred to in or made with reference to the
Notes are hereby incorporated by reference, and are sometimes collectively
referred to as "Transaction Documents."
GRANTING CLAUSES
NOW, THEREFORE, in consideration of ten dollars and other good and
valuable consideration, the receipt of and sufficiency of which are hereby
acknowledged, and to secure
(i) the payment when due of indebtedness evidenced by the Notes in
the maximum principal sum of $140,000,000 payable to the order of the Holders,
bearing interest as set forth in the Indenture and maturing on July 1, 2006,
such date being the "Maturity Date," and any notes exchanged for the Notes or
issued in replacement of the Notes (in each case pursuant to the terms of the
Indenture), including, without limitation, all accrued and unpaid interest
thereon, and premiums and penalties, if any, thereon, including late payment
charges and Additional Interest (as defined in Section 5.2 hereof),
(ii) the payment by the Company if and when due of (a) the Change of
Control payment (as defined in Section 4.14 of the Indenture), in an amount not
to exceed such amount calculated in accordance with Section 4.14 of the
Indenture, and (b) amounts due in connection with an Excess Proceeds Offer (as
defined in Section 4.10 of the Indenture) in an amount not to
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exceed such amount calculated in accordance with Section 4.10 of the Indenture,
in either case together with interest thereon as set forth in the Indenture, and
premiums and penalties, if any, thereon, including Additional Interest,
(iii) all other sums that may or shall become due hereunder, in
connection with the Notes or under the other Transaction Documents, including
the costs and expenses of enforcing any provision of any of the foregoing
documents or any extensions or modifications of the Notes or any substitutions
therefor,
(iv) the reimbursement to the Trustee of all monies which may be
advanced as herein provided and of any and all costs and expenses (including
reasonable attorneys' fees and expenses) incurred or paid on account of any
litigation at law or in equity that may arise in respect of this Shore Mortgage
or the obligations secured hereby or the lands and premises and other property
herein mentioned or in obtaining possession of said lands and premises and other
property after any sale that may be made as hereinafter provided,
(v) the payment by the Company to the Trustee of all sums, if any,
as may be duly expended or advanced by the Trustee in the performance of any
obligation of the Company as provided hereunder,
(vi) the payment of any and all other indebtedness that this Shore
Mortgage by its terms secures and
(vii) the performance and observance of the covenants, agreements
and obligations of the Company contained herein and in the other Transaction
Documents
(all obligations and sums included in the foregoing clauses (i), (ii), (iii),
(iv), (v), (vi) and (vii) being hereinafter collectively referred to as the
"Secured Obligations"), and in order to charge with such performance and with
such payments said lands and premises and other property hereinafter described
and the rents, revenues, issues, income and profits thereof, the Company does
hereby mortgage, affect, hypothecate, to inure to the use and benefit of the
Trustee (as trustee under the Indenture), and its successors and assigns, all
right, title and interest of the Company now or hereafter owned or leased, in,
to or under, or derived from each and all of the following properties, estates,
rights, titles and interests (collectively, the "Mortgaged Property"):
(a) the Real Property and all tenements, hereditaments,
appurtenances, estates and rights in and to any of the Real Property
and all component parts of the Real Property, including without
limitation all of the Company's right, title and interest as tenant
under the Leases;
(b) all buildings, improvements and other structures now or
hereafter located on any of the Real Property (the "Improvements");
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(c) all of the Company's right, title and interest in and to
all servitudes, easements, rights-of-way, gores of land, streets,
ways, alleys, passages, sewer rights, waters, water courses, water
rights and powers, and all estates, rights, title, interests,
privileges, liberties, prescriptions, advantages and appurtenances
of any nature whatsoever, in any way belonging, relating or
pertaining to any of the Real Property or the Improvements;
(d) all of the Company's right, title and interest in and to
any right to purchase, or to use and occupy, any land adjacent to
any of the Real Property and any land lying in the bed of any
street, road or avenue, opened or proposed, in front of or adjoining
any of the Real Property;
(e) all of the Company's right, title and interest, to all
machinery, apparatus, equipment, fittings, fixtures and other
property of every kind and nature whatsoever now or hereafter
located upon any of the Real Property or the Improvements, and all
component parts of any building or other construction located on any
of the Real Property or appurtenances thereto, and used in
connection with the operation and occupancy of any of the Real
Property or the Improvements, and all building equipment, material
and supplies of any nature whatsoever now or hereafter located in or
upon any of the Real Property or the Improvements, including,
without limitation, all metals, lumber and lumber products, bricks,
stones, building blocks, sand, cement, roofing materials, paint,
doors, windows, hardware, wires, wiring and other building materials
and any building equipment, materials and supplies obtained for use
in connection with any of the Real Property or the Improvements and
all additions, replacements, modifications and alterations of any of
the foregoing, including, but without limiting the generality of the
foregoing, all heating, lighting incinerating and power equipment,
engines, pipes, tanks, motors, conduits, switchboards, plumbing,
lifting, cleaning, fire prevention, fire extinguishing,
refrigerating, ventilating and communications apparatus, air cooling
and air conditioning apparatus, elevators, ducts and compressors and
all other equipment and fixtures (collectively, the "Fixtures"). The
Company acknowledges that all Fixtures are part and parcel of the
real estate and appropriated to the use of the real estate and,
whether or not affixed or annexed to the Improvements, shall for the
purpose of this Shore Mortgage be deemed conclusively to be real
estate and mortgaged hereby;
(f) all of the Company's right, title and interest to all
plans and specifications for the Real Property and the Improvements,
all contracts with architects and engineers responsible for the
design of the Improvements, the preparation or evaluation of any of
such plans and specifications or the supervision of the construction
of any of the Improvements, all contracts to which the Company is
now or hereafter a party providing for the connection therewith or
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the furnishing or installation of any Fixtures or other personal
property in connection therewith, all contracts to which the Company
is now or hereafter a party providing for the management of the
construction of any of the Improvements, all rights of the Company
as a third party beneficiary under all contracts and subcontracts
pertaining to the Real Property or the Improvements as to which the
Company is not a party, all payment and performance bonds relating
to the Real Property or the Improvements and all other contracts and
agreements related to the design, management, construction,
equipping and development of the Real Property or the Improvements
(collectively, the "Construction Documents");
(g) all of the Company's right, title and interest to all
awards or payments, and any interest paid or payable with respect
thereto, that may be made with respect to all or any portion of the
Real Property, the Improvements or the Fixtures, whether from the
exercise of right of condemnation, eminent domain or similar
proceedings (including any transfer made in lieu of the exercise of
said right), or from any taking for public use, or for any other
injury to or decrease in the value of all or any portion of the Real
Property, the Improvements or the Fixtures, or as a result of the
exercise by any governmental authority of any right or option to
purchase any of the Real Property, all of the foregoing to be held,
applied and paid in accordance with the provisions of this Shore
Mortgage (collectively, the "Eminent Domain Awards");
(h) all of the Company's right, title and interest to all
proceeds of, and any unearned premiums on, any insurance policies
covering all or any portion of the Real Property, the Improvements
or the Rents (as hereinafter defined), including, without
limitation, the right to receive and apply the proceeds of any
insurance, judgments, or settlements made in lieu thereof, for
damage to all or any portion of the Real Property or the
Improvements and any interest actually paid with respect thereto,
all of the foregoing to be held, applied and paid in accordance with
the provisions of this Shore Mortgage (collectively, the "Insurance
Proceeds");
(i) all of the Company's right, title and interest as lessor
or landlord to all leases and other agreements affecting the use or
occupancy of any of the Real Property or the Improvements now in
effect or hereafter entered into (including, without limitation,
subleases (including subleases of the Leases, licenses, concessions,
tenancies and other occupancy agreements covering or encumbering all
or any portion of the Real Property or the Improvements), but
excluding any licenses and permits to the extent not assignable
under applicable law, including without limitation, liquor and
gaming licenses, together with any modifications, extensions or
renewals of the same (collectively, excluding the Leases, the "Space
Leases") and the rents, revenues, issues, income, products and
profits of the Real
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Property and the Improvements, including, without limitation, any
security deposits or other funds deposited with the Company pursuant
to the Space Leases (collectively, the "Rents"), together with any
guarantees of the Space Leases or Rents delivered to the Company
from time to time, and any modifications, extensions and renewals of
any such guarantees, together with the right, but not the
obligation, to exercise options, to give consents and to collect,
receive and receipt for the Rents and apply the Rents to the payment
of the Secured Obligations and to demand, xxx for and recover the
Rents (when due and payable), subject to a license in favor of the
Company in respect thereof prior to the occurrence of an Event of
Default (as defined in Section 5.1 hereof); and
(j) any and all other, further or additional rights, title,
estates and interests of the Company in and to any of the Real
Property or the Improvements or the Fixtures, and all renewals,
substitutions and replacements of and all additions and
appurtenances to any of the Real Property or the Improvements or the
Fixtures or constructed, assembled or placed on any of the Real
Property or the Improvements, and all conversions of the assemblage,
placement or conversion, as the case may be, and in each such case
without any further mortgage, conveyance, assignment or other act by
the Company, shall become subject to the lien of this Shore Mortgage
as fully and completely, and with the same effect, as though now
owned by the Company, the Company expressly agreeing that if the
Company shall at any time acquire any other right, title, estate or
interest in and to any of the Real Property, the Improvements or the
Fixtures, the lien of this Shore Mortgage shall automatically attach
to and encumber such other right, title, estate or interest as a
first lien thereon.
AND, as additional security, the Company hereby grants to the
Trustee a continuing security interest in (a) the Fixtures, (b) the Construction
Documents, (c) the Insurance Proceeds, (d) the Eminent Domain Awards, (e) the
Space Leases, (f) the Rents, (g) all proceeds of the foregoing and (h) all
proceeds of any of the Real Property and the Improvements (collectively, the
"Security Interests Property") and this Shore Mortgage shall be effective as a
security agreement pursuant to the Uniform Commercial Code as enacted and in
effect in the state in which any of the Real Property is located (the "Code").
HABENDUM
TO HAVE AND TO HOLD the Mortgaged Property, the rights and
privileges hereby conveyed or assigned, or intended so to be, unto the Trustee
(as trustee under the Indenture), its successors and assigns, forever for the
uses and purposes and subject to the terms and conditions herein set forth.
SUBJECT, HOWEVER, to Permitted Liens (as defined in the Indenture).
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PROVIDED NEVERTHELESS, should the Company pay and perform all the
Secured Obligations in accordance with the Indenture and the Security Documents,
then these presents will be of no further force and effect, and this Shore
Mortgage shall be satisfied by the Trustee, at the expense of the Company.
The Company FURTHER agrees as follows:
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ARTICLE I
COVENANTS
Section 1.1 Performance of Obligations. The Company shall pay and
perform the Secured Obligations. Time is of the essence hereof.
Section 1.2 Further Assurances. If the Trustee requests, the Company
shall sign and deliver and cause to be recorded as the Trustee shall reasonably
direct any further mortgages, instruments of further assurance, certificates and
other documents as the Trustee may consider reasonably necessary or desirable in
order to perform, perfect, continue, and preserve the obligations of the Company
under the Transaction Documents. The Company further agrees to pay to the
Trustee, upon demand, all costs and expenses incurred by the Trustee in
connection with the preparation, execution, recording, filing and refiling of
any such documents, including attorneys' fees and title opinion or title
insurance costs.
Section 1.3 Operation and Maintenance; Compliance with Laws. The
Company shall cause the Mortgaged Property to be maintained in normal working
order and condition, reasonable wear and tear excepted, and the Company shall
make all necessary repairs, renewals, replacements, additions, betterments and
improvements thereto, as shall be reasonably necessary for the proper conduct of
the business of the Company. The Company shall comply or cause compliance with
all laws, ordinances and regulations of any governmental authority with
reference to the Mortgaged Property and the manner of using or operating the
same, including any Environmental Laws or Regulations and Accessibility
Regulations, as hereafter defined, and with any restrictive covenants affecting
the title to the Mortgaged Property, and with the terms of all insurance
policies relating to the Mortgaged Property.
Section 1.4 Payment of Utilities, Impositions, Liens. The Company
shall pay or cause to be paid when due all charges or fees for utilities and
services supplied to the Mortgaged Property. The Company, at least five (5) days
before any penalty attaches thereto, shall pay and discharge, or cause to be
paid and discharged, all taxes, assessments and governmental charges or levies
(collectively, "Impositions") imposed upon or against it, its income or profits,
the Mortgaged Property or rents therefrom, or upon or against the Secured
Obligations, or upon or against the interest of the Trustee in the Mortgaged
Property or the Secured Obligations, except Impositions measured by the income
of the Trustee. The Company shall provide evidence of such payment at the
Trustee's request. This Shore Mortgage is and shall be maintained by the Company
as a valid first mortgage lien and first security interest in the Mortgaged
Property, subject only to the Permitted Liens (as defined in the Indenture) and
such other matters as may be expressly permitted under the Indenture. Except as
otherwise provided in the Indenture, the Company shall not, directly or
indirectly, create or suffer, or permit to be created or suffered, against the
Mortgaged Property or any part thereof, and the Company will promptly discharge
any Lien (as defined in the Indenture) or other Imposition that may affect the
Mortgaged Property or any part thereof, or any interest therein, except the
Permitted Liens. If any Lien not permitted hereunder is filed, the Company will
cause the same to be discharged promptly by payment or
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bonding or otherwise to the satisfaction of the Trustee and will exhibit to the
Trustee evidence of payment, discharge, bonding or other disposition
satisfactory to the Trustee.
Section 1.5 Intentionally omitted.
Section 1.6 Insurance. The Company shall maintain insurance on the
Mortgaged Property as specified in Section 4.16 of the Indenture. Such insurance
shall include, unless waived in writing by the Trustee, the following:
(a) Unless such types of insurance are no longer reasonably
commercially available, the Company shall maintain all insurance
required by the Indenture and in addition, with respect to the Real
Property and the Improvements, as follows: (i) special causes of
loss insurance (formerly known as all-risk insurance), flood and
sprinkler leakage, if applicable, in an amount sufficient to prevent
the Company from being or becoming a co-insurer within the terms of
the policy or policies providing such insurance, and in any event
for not less than the full replacement value of the Improvements and
the Fixtures, as reasonably determined by the Trustee; (ii) business
interruption insurance for loss occasioned by the perils commonly
insured in a special causes of loss policy for a period ending no
earlier than the Maturity Date and in an aggregate amount not less
than the real estate taxes, additional interest and other
assessments for the Real Property and the Improvements and all other
continuing expenses of the Mortgaged Property including, without
limitation, all payments required to be made by the Company under
the Leases; (iii) commercial general liability insurance, including
blanket contractual liability, completed operations and personal
injury coverage, with a combined single limit for any one occurrence
of at least $1,000,000 and an aggregate limit of at least
$2,000,000; (iv) worker's compensation and employer's liability
insurance, subject to statutory limits or better, in respect of any
work or other operations on, about or in connection with the Real
Property and the Improvements; and (v) such other insurance with
respect to the Real Property and the Improvements in such amounts as
the Trustee, from time to time, may reasonably request against such
other insurable hazards which are commonly insured against in
respect of property similar to the Real Property and the
Improvements (and, with respect to clause (v) only, provided that
such insurance is available at commercially reasonable rates).
(b) The insurance maintained by the Company under clauses (i),
(ii) and, if appropriate, (v) of subparagraph (a) of this Paragraph
shall bear a standard noncontributory endorsement in favor of the
Trustee. The insurance maintained by the Company under clause (iii)
and, if appropriate, (v) above shall name the Trustee as an
additional insured. All insurance maintained by the Company shall
provide that no cancellation, material change or reduction in the
coverage or amounts thereof shall be effective until at least thirty
(30) days or, in the case of
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non-payment of premiums, ten (10) days, after written notice to the
Trustee thereof.
(c) The Company shall furnish the Trustee with certificates
evidencing all such policies, endorsements and renewals and evidence
of payment of premiums therefor and, certified copies of all such
policies, endorsements and renewals certified by the insurance
carrier. In this regard, the Company further covenants and agrees
that, in any suit or action for damages arising from the alleged
negligence of the Company in which action the Trustee or any Holder
is included or made a defendant, the Company agrees to assume all of
the burden, cost and expense of the defense or settlement of such
action or claim and will pay any judgment which may be obtained
against the Trustee or any Holder.
(d) The Company shall not carry separate or additional
insurance concurrent in form or contributing, in the event of loss,
with that required hereunder unless endorsed in favor of the Trustee
as loss payee or additional insured, as applicable, and designating
that such insurance shall contain endorsements providing coverage
secondary to the insurance required to be carried hereunder. Nothing
contained herein shall prohibit the Company from holding or
obtaining an owner's policy of title insurance covering the Real
Property.
(e) Each policy of insurance required by this Shore Mortgage
(hereinafter collectively referred to as the "Policies") shall be
carried with a company which is licensed to do business in the state
in which the Real Property is located and is rated A-minus-12 or
higher by Best's Rating Guide, or an equivalent rating, with such
other publication of a similar nature as shall be in current use,
except that the Company may obtain such insurance from Lloyds of
London or from a protection and indemnity club which is comparable
in financial strength to insurance companies rated A-minus-12. All
policies of insurance placed with a mutual company shall be
nonassessable. All policies of insurance at any time carried by the
Company on the Mortgaged Property (whether carried pursuant to the
requirements of this Shore Mortgage or otherwise) shall name the
Trustee as joint payee for all payments made by such insurance
company. The Company shall pay the premiums for the Policies as the
same become due and payable. Not later than thirty (30) days prior
to the expiration date of each of the Policies, the Company will
deliver to the Trustee a renewal policy or policies (or binder(s)
evidencing-same) marked "premium paid" or accompanied by other
evidence of payment of premium satisfactory to the Trustee.
(f) In the event of any insured loss, the Company hereby
authorizes and directs any insurance company concerned to make
payment of such loss (only with respect to the insurance policies
described in subparagraphs 1.6(a)(i),
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l.6(a)(ii) (provided, however, in the case of l.6(a)(ii) only, any
such payments shall be made to the Trustee only after an Event of
Default has occurred, as defined in Section 5.1 hereof, which has
not been waived in writing by the Holders under the Indenture) and,
as applicable, 1.6(a)(v)) directly and solely to the Trustee to be
applied as hereinafter provided. The Company, acting in its
reasonable judgment, shall make any necessary proof of loss and
shall adjust and compromise all claims under all policies and shall
cause the applicable insurance company to make payment thereof as
herein provided; and the Company shall sign all receipts, vouchers,
releases and other instruments which may be reasonably necessary or
desirable in aid of such payment. The Insurance Proceeds paid to the
Trustee shall be held as trust funds, and the Trustee shall dispose
of such proceeds, as provided in Section 3.1 hereof. In the event
that any Insurance Proceeds are paid by check to the Company or to
the Company and the Trustee as joint payees, the Company agrees that
it shall endorse such check over to the Trustee.
(g) In the event that the Company fails to keep the Real
Property and the Improvements insured in compliance with this
Section, the Trustee may, but shall not be obligated to, obtain
insurance and pay the premiums therefor, and the Company shall, on
demand, reimburse the Trustee for all sums advanced and expenses
incurred in connection therewith. Such sums and expenses, together
with interest thereon at the Additional Interest Rate, shall be
deemed part of the Secured Obligations and secured by the lien of
this Shore Mortgage.
(h) Subject to the provisions of Section 3.1 hereof, nothing
contained in this Section or elsewhere in this Shore Mortgage shall
relieve the Company of its duty to maintain, repair, replace or
restore the Improvements or the Fixtures or rebuild the
Improvements, from time to time, in accordance with the applicable
provisions of the Transaction Documents, and nothing in this Section
or elsewhere in this Shore Mortgage shall relieve the Company of its
duty to pay the Secured Obligations, which shall be absolute,
regardless of the occurrence of damage to or destruction of or
condemnation of all or any portion of the Mortgaged Property.
Section 1.7 Books and Records; Financial Information. The Company
shall (i) keep complete and accurate books and records with respect to the
Mortgaged Property; (ii) permit the Trustee to inspect such books and records
during normal business hours and make copies thereof at the Trustee's expense;
and (iii) provide the Trustee such information as the Trustee may from time to
time reasonably request concerning the operations and financial affairs of the
Company and the Mortgaged Property, including, if requested, audited annual
financial statements and quarterly operating statements.
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Section 1.8 Mortgage, Sale, Lease of the Mortgaged Property.
(a) The Company will not, now or in the future, mortgage,
pledge or encumber or place any Lien or encumbrance (or permit the
same to exist) on the Mortgaged Property, or any part thereof,
without the prior written consent of the Trustee, except for
Permitted Liens.
(b) The Company shall not sell, convey, transfer or otherwise
alienate in any manner, whether directly or indirectly, any right,
title or interest in the Mortgaged Property, or any part thereof
except as expressly permitted under the Indenture, without obtaining
in each such instance the prior written consent of the Trustee.
(c) Except as otherwise expressly permitted under the
Transaction Documents or as otherwise expressly permitted hereunder,
the Company shall not, without the Trustee's prior consent, which
consent will not be unreasonably withheld, enter into any agreement
with or conveyance to any other person or entity permitting the use
of any excess development rights that might otherwise be used by the
Company in expanding, altering, reconstructing, replacing or
otherwise improving the Improvements or making any other
improvements on the Mortgaged Property, or otherwise permit or
suffer any change of the zoning of the Mortgaged Property or the use
that may be made thereof.
Section 1.9 Environmental - ADA. The Company agrees:
(a) Except for substances normally used for maintenance or
operation of the Mortgaged Property which are used, stored and
disposed of in accordance with all applicable Environmental
Regulations, The Company shall not, nor shall it permit others to,
place, store, locate, generate, produce, create, process, treat,
handle, transport, incorporate, discharge, emit, spill, release,
deposit or dispose of any Hazardous Substance in, upon, under, over
or from the Mortgaged Property. The Company shall cause all
Hazardous Substances found on or under the Mortgaged Property, which
are not permitted under the foregoing sentence, and which exist in
quantities which violate applicable Environmental Laws or
Regulations, to be properly removed therefrom and properly disposed
of at the Company's cost and expense. The Company shall not install
or permit to be installed any underground storage tank on or under
the Mortgaged Property. If the Trustee shall reasonably request, the
Company shall at its cost obtain and deliver to the Trustee an
environmental review, audit, assessment and/or report relating to
the Mortgaged Property or shall have any previously delivered
materials updated and/or amplified, by an engineer or scientist
acceptable to the Trustee.
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(b) the Company shall comply with all Accessibility
Regulations which are applicable to the Mortgaged Property. If the
Trustee shall reasonably request, the Company shall at its cost
obtain and deliver to the Trustee an Accessibility Regulation
compliance report relating to the Mortgaged Property or shall have
any previously delivered materials updated and/or amplified, by a
qualified consultant acceptable to the Trustee.
(c) the Company shall, promptly after obtaining actual
knowledge thereof, give notice to the Trustee of: (i) any activity
in violation of any applicable Environmental Laws or Regulations
relating to the Mortgaged Property, (ii) any governmental or
regulatory actions instituted or threatened under any Environmental
Laws or Regulations or any Accessibility Regulations affecting the
Mortgaged Property, (iii) all claims made or threatened by any third
party against the Mortgaged Property relating to any Hazardous
Substance or a violation of any Environmental Laws or Regulations or
any Accessibility Regulations, (iv) discovery by any the Company of
any occurrence or condition on or under the Mortgaged Property or on
or under any real property adjoining or in the vicinity of the
Mortgaged Property which could subject the Company, the Trustee or
the Mortgaged Property to a claim under any Environmental Laws or
Regulations or Accessibility Regulations. Any such notice shall
include copies of any written materials received by the Company.
(d) Any investigation, remedial or corrective action, taken
with respect to the Mortgaged Property shall be done under the
supervision of a qualified consultant, engineer or scientist
acceptable to the Trustee who shall, at the Company's cost and at
the completion of such investigation or action, provide a written
report of such investigation or action to the Trustee.
(e) If the Mortgaged Property has, or is suspected to have,
asbestos or asbestos containing materials ("ACM") which, due to its
condition, location and/or planned building renovation or
demolition, is recommended to be abated by repair, encapsulation,
removal or other action, the Company shall promptly carry out the
recommended abatement action. If the recommended abatement includes
removal of ACM, the Company shall cause the same to be removed and
disposed of offsite by a licensed and experienced asbestos removal
contractor, all in accordance with Environmental Laws or
Regulations. Upon completion of the recommended abatement action,
the Company shall deliver to the Trustee a certificate, signed by an
officer of the Company and the consultant overseeing the abatement
action, certifying to the Trustee that the work has been completed
in compliance with all applicable laws, ordinances, codes and
regulations (including without limitation those regarding
notification, removal and disposal) and that no airborne fibers
beyond permissible exposure limits remain on site. The Company shall
develop and implement an Operations and Maintenance Program (as
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contemplated by Environmental Protection Agency guidance document
entitled "Managing Asbestos In Place: A Building Owner's Guide to
Operations and Maintenance Programs for Asbestos-Containing
Materials") for managing in place any ACM in the Mortgaged Property.
The Company shall deliver a complete copy of such Operations and
Maintenance Program to the Trustee and certify to the Trustee that
such Program has been implemented.
(f) After an Event of Default, or if at any time there is a
reasonable basis to believe that a violation of Environmental Laws
or Regulations may have occurred on the Mortgaged Property, the
Trustee shall have the right, after ten (10) days' prior written
notice to the Company, to have an environmental review, audit,
assessment, testing program and/or report with respect to the
Mortgaged Property performed or prepared by an environmental
engineering firm selected by the Trustee. The Company shall
reimburse the Trustee for the cost incurred for each such action
within ten (10) days following demand therefor by the Trustee. The
amount shall accrue interest at the Additional Interest Rate (as
defined in Section 5.2) from and including the date of disbursement
by the Trustee through the date of payment by the Company.
For purposes of this Shore Mortgage, the following definitions shall apply:
"Environmental Laws or Regulations" means and includes the Federal
Comprehensive Environmental Response, Compensation and Liability Act
("CERCLA" or the Federal Superfund Act) as amended by the Superfund
Amendments and Reauthorization Act of 1986 ("XXXX"), 42 U.S.C. xx.xx. 9601
et seq.; the Federal Resource Conservation and Recovery Act of 1976
("RCRA"), 42 U.S.C. xx.xx. 6901 et seq.; Chapter 455B of the Iowa Code;
the Clean Water Act, 33 U.S.C. xx.xx. 1321 et seq.; and the Clean Air Act,
42 U.S.C. xx.xx. 7401 et seq., all as the same may be from time to time
amended, and any other federal, state, county, municipal, local or other
statute, code, law, ordinance, regulation, requirement or rule which may
relate to or deal with human health or the environment, including, without
limitation, all regulations promulgated by a regulatory body pursuant to
any such statute, code, law or ordinance.
"Hazardous Substances" means asbestos, asbestos containing
materials, urea formaldehyde, polychlorinated biphenyls, nuclear fuel or
materials, chemical waste, radioactive materials, explosives, known
carcinogens, petroleum products including but not limited to crude oil or
any fraction thereof, natural gas, natural gas liquids, gasoline or
synthetic gas, and any other waste, material, substance, pollutant or
contaminant which would subject the owner of the Mortgaged Property to any
damages, penalties, liabilities, or obligations under any applicable
Environmental Laws or Regulations.
"Accessibility Regulations" means any law ordinance or regulation
relating to accessibility of facility or property for disabled,
handicapped and/or physically challenged
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persons, including, without limitation, the Americans With Disabilities
Act of 1991, as amended.
Section 1.10 The Leases. With respect to each Lease, the Company
hereby covenants and agrees that:
(a) The Company will promptly pay when due and payable the
rentals, additional rents and other charges mentioned in and payable
under the Lease within the grace and cure periods provided in the
Lease.
(b) The Company will promptly perform and observe all of the
terms, covenants and conditions required to be performed and
observed by the Company, as lessee under the Lease, within the grace
and cure periods provided in the Lease, and will do all things
reasonably necessary to preserve and to keep unimpaired its rights
under the Lease. The Company will enforce or cause to be enforced
the obligations of the lessor under the Lease, to the end that the
Company may enjoy all of the material rights granted to it as lessee
under the Lease.
(c) The Company will promptly notify the Trustee of any
material default by the Company in the performance or observance of
any of the terms, covenants or conditions on the part of the Company
to be performed or observed under the Lease.
(d) The Company will (i) promptly notify the Trustee of the
receipt by the Company of any notice from the lessor under the Lease
of a default by the Company in the performance or observance of any
of the terms, covenants or conditions on the part of the Company to
be performed or observed under the Lease, (ii) promptly notify the
Trustee of the receipt by the Company of any notice from the lessor
under the Lease to the Company of termination of the Lease pursuant
to the provisions thereof and (iii) promptly cause a copy of each
such notice received by the Company from the lessor under the Lease
to be delivered to the Trustee.
(e) Except as otherwise expressly permitted under the
Transaction Documents or as otherwise expressly permitted hereunder,
the Company will not, without the prior consent of the Trustee (i)
terminate, cancel, modify, supplement or surrender or suffer or
permit any termination, modification or surrender of the Lease, (ii)
fail or refuse to take timely and appropriate action to renew the
Lease pursuant to the applicable provisions thereof, (iii) consent
or refuse to consent to any action taken or to be taken by the
lessor or anyone else under the Lease, the result of which would
materially diminish or impair the security of this Shore Mortgage
(as determined by the Trustee), (iv) further encumber the Leasehold
Interests, notwithstanding any such right given to the Company under
the Lease,
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or (v) subordinate or consent to the subordination of the Lease to
any mortgage on the lessor's interest in the premises demised by the
Lease.
(f) Supplementing the provisions of subparagraph (e) above, if
the Lease is rejected or disaffirmed by the lessor thereunder (or by
any receiver, trustee, custodian or other party who succeeds to the
rights of such lessor, such receiver, trustee, custodian or other
party being collectively, the "acting lessor") pursuant to any
bankruptcy, insolvency, reorganization, moratorium or similar law
(any such law hereinafter collectively referred to as a "Bankruptcy
Law"), the Company covenants that it will not elect to treat the
Lease as terminated under 11 U.S.C. ss.365(h) or any similar or
successor law or right, and hereby assigns to the Trustee the sole
and exclusive right to make or refrain from making any such
election, and the Company agrees that any such election, if made by
the Company, shall be void and of no force or effect.
(g) If the lessor or acting lessor under the Lease rejects or
disaffirms the Lease pursuant to any Bankruptcy Law and the Trustee
elects to have the Company remain in possession under any legal
right the Company may have to occupy the premises leased pursuant to
the Lease, then (i) the Company shall remain in such possession and
shall perform all acts necessary for the Company to retain its right
to remain in such possession for the unexpired term of the Lease
(including all renewals thereof) whether such acts are required
under the then existing terms and provisions of the Lease or
otherwise, and (ii) all of the terms and provisions of this Shore
Mortgage and the lien created hereby shall remain in full force and
effect and shall be extended automatically to such possession,
occupancy and interest of the Company.
(h) The Company will from time to time, after demand of the
Company, use reasonable efforts to obtain and deliver to the Trustee
a written statement from the lessor under the Lease, duly
acknowledged, and certifying to the Company and the Holders (i) that
the Lease is then in full force and effect and has not been modified
(or, if modified, setting forth all modifications), (ii) the date to
which the rent, additional rent and other charges thereunder have
been paid, (iii) whether or not, to the best knowledge of lessor
under the Lease, the Company is in default under the Lease, and, if
the Company is in default, the specific nature of all such defaults
and (iv) as to any other matters reasonably requested by the Trustee
and reasonably related to the Lease.
(i) The Company shall deliver to the Trustee an original Non
Disturbance and Attornment Agreement from the holder of any mortgage
encumbering the real property affected by the Leasehold Interest, in
a form previously agreed to by the Trustee.
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ARTICLE II
REPRESENTATIONS AND WARRANTIES
The Company makes the following representations and warranties:
Section 2.1 Existence and Powers. The Company is a limited liability
company duly created and validly existing and in good standing under the laws of
the State of Delaware. The Company has the power to own its property and to
carry on its business and to execute and perform the Transaction Documents. The
Company has obtained all licenses and permits necessary to conduct its business
in the manner presently conducted.
Section 2.2 Ownership, Liens, Compliance with Laws. The Company owns
the Mortgaged Property free from all Liens and encumbrances except for the
Permitted Liens. All applicable zoning and environmental, land use, subdivision,
building, fire, safety or health laws, ordinances and regulations affecting the
Mortgaged Property permit the current use and occupancy thereof, and the Company
has obtained all consents, permits and licenses required for such use. The
Company will comply with and satisfy all applicable formalities and provisions
of the laws and regulations of the United States of America and the laws of the
State of Iowa in order to perfect, establish and maintain this Shore Mortgage,
and any supplement or amendment hereto.
Section 2.3 Authority, Consents. The execution, delivery and
performance of the Transaction Documents have been duly authorized by all
necessary action of the Company. Except for consents and approvals previously
obtained, no consent or approval of, or exemption by, any person or entity,
governmental or private, is required to authorize the execution, delivery and
performance of the Transaction Documents or the validity thereof.
Section 2.4 Binding Agreement. The Transaction Documents are the
valid and legally binding obligations of the Company enforceable against the
Company in accordance with their respective terms, except to the extent limited
by bankruptcy, insolvency or similar laws affecting the rights of creditors
generally.
Section 2.5 No Conflict, Default. The execution, delivery and
performance by the Company of the Transaction Documents will not violate or
cause default under or permit acceleration of any agreement to which the Company
is a party or by which it or the Mortgaged Property is bound. To the Company's
knowledge, it is not in default (beyond any applicable grace period) in the
performance of any agreement, order, writ, injunction, decree or demand to which
it is a party or by which it is bound.
Section 2.6 Litigation. There is no litigation, arbitration or other
proceeding in process or to the Company's knowledge pending or threatened
against the Mortgaged Property or the Company which is reasonably likely to have
a materially adverse effect on the ability of the
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Company to fulfill its obligations under the Transaction Documents or on the
condition, financial or otherwise, of the Company's business, properties or
assets.
Section 2.7 Use. The Mortgaged Property is not homestead property
nor is it agricultural property in agricultural use.
Section 2.8 Utilities. The Mortgaged Property is serviced by all
necessary public utilities, and all such utilities are operational and have
sufficient capacity.
Section 2.9 Environmental. To the Company's knowledge:
(a) There is not located on, in, about, or under the Mortgaged
Property any Hazardous Substances except for Hazardous Substances of
the type ordinarily used, stored, or manufactured in connection with
the ownership or operation of the Mortgaged Property as it is
presently operated and such existing Hazardous Substances have been
used, stored and manufactured in compliance with all Environmental
Laws or Regulations.
(b) The Mortgaged Property is not presently used, and has not
in the past been used as a landfill, dump, disposal facility,
gasoline station or for the storage, generation, production,
manufacture, processing, treatment, disposal, handling,
transportation, or deposit of any Hazardous Substances.
(c) There has not in the past been, and no present threat now
exists of, a spill, discharge, emission or release of a Hazardous
Substance in, upon, under, over or from the Mortgaged Property or
from any other property which would have an impact on the Mortgaged
Property.
(d) There are no past or present investigations,
administrative proceedings, litigation, regulatory hearings or other
action completed, proposed, threatened or pending, alleging
noncompliance with or violation of any Environmental Laws or
Regulations respecting the Mortgaged Property, or relating to any
required environmental permits covering the Mortgaged Property.
(e) The Company has disclosed to the Trustee all reports and
investigations commissioned by the Company and relating to Hazardous
Substances and the Land and the Improvements.
(f) There are not now, nor have there ever been, any above
ground or underground storage tanks located in or under the
Mortgaged Property. There are no xxxxx on or under the Mortgaged
Property.
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Section 2.10 First Mortgage Lien. This Shore Mortgage constitutes a
valid mortgage and, upon proper recording hereof, will constitute a valid and
perfected first priority mortgage lien, and security interest in the Mortgaged
Property (subject only to the Permitted Liens and any mortgage filed pursuant to
the provisions of the Intercreditor Agreement), and there are no defenses or
offsets to the Company's obligations pursuant to this Shore Mortgage or the
other Transaction Documents, including without limitation, the Company's
applicable obligations to pay and perform the Secured Obligations.
Section 2.11 Tax Liens; Bankruptcy. There are no federal, state or
local tax claims or liens assessed or filed against the Company or the Mortgaged
Property for taxes which are due and payable, unsatisfied of record or docketed
in any court of the state in which the Real Property is located or in any other
court located in the United States, and no petition in bankruptcy has ever been
filed by the Company, or, to the Company's knowledge, against the Company, and
the Company has never made any assignment for the benefit of creditors or taken
advantage of any insolvency act or any act for the benefit of debtors.
Section 2.12 Damage; Eminent Domain Proceedings. The Mortgaged
Property has not been damaged or destroyed by fire or other casualty, and no
condemnation or eminent domain proceedings have been commenced and none are
pending with respect to the Mortgaged Property, and, to the Company's knowledge,
no such condemnation or eminent domain proceedings are about to be commenced.
Section 2.13 Leases. The Leases are now valid and subsisting leases
and are in full force and effect in accordance with the terms thereof and have
not been modified, and all of the rental, additional rental and other charges
payable under the Leases prior to the execution hereof have been paid, and all
of the material terms, conditions and agreements contained in the Leases have
been performed by the Company, and no material default exists under any of the
Leases. This Shore Mortgage is lawfully executed and delivered in conformity
with the Leases and is and will be kept a valid first priority lien on and
collateral assignment of the interest of the Company therein.
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ARTICLE III
CASUALTY - CONDEMNATION
Section 3.1 Damage or Destruction. During the period the
indebtedness remains outstanding, in the event that the Real Property, the
Improvements, or the Fixtures shall be damaged or destroyed in whole or in part,
by fire or other casualty covered by insurance, the Company shall give prompt
written notice thereof to the Trustee. At such time as such damage, destruction
or casualty shall occur, the Insurance Proceeds shall be treated as proceeds of
an Asset Sale (as defined in the Indenture) and shall be payable to the Trustee
and shall be released, applied and/or distributed in accordance with Sections
4.10 and 11.4 of the Indenture. Upon the occurrence of an Event of Default which
has not been waived in writing by the Holders in accordance with Section 6.4 of
the Indenture, the Trustee shall have the right to apply such Insurance Proceeds
in accordance with Section 6.10 of the Indenture.
Section 3.2 Condemnation.
(a) During the period the indebtedness remains outstanding, in
the event that the Mortgaged Property, or any part thereof, shall be
taken in condemnation proceedings or by exercise of the right of
eminent domain, or by conveyance in lieu of condemnation, or as a
result of the exercise by any governmental authority of any right or
option to purchase (hereinafter collectively called "Proceedings"),
the Trustee shall have the right to participate in any such
Proceedings at the Company's expense, including reasonable
attorneys' fees and disbursements, and any Eminent Domain Awards
that may be made or any proceeds thereof shall be deposited with the
Trustee and held in trust by the Trustee and distributed in the
manner herein set forth. The parties agree to execute any and all
further documents that may be required in order to facilitate
collection of any Eminent Domain Award and the making of any such
deposit.
(b) During the period the indebtedness remains outstanding, if
there occurs a Proceeding, any Eminent Domain Awards payable in
connection therewith shall be considered a Asset Sale (as defined in
the Indenture) and shall be released, applied and/or distributed in
accordance with Sections 4.10 and 11.4 of the Indenture.
(c) Upon the occurrence of an Event of Default which has not
been waived in writing by the Holders in accordance with Section 6.4
of the Indenture, the Trustee shall have the right to apply such
Eminent Domain Awards in accordance with Section 6.10 of the
Indenture.
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ARTICLE IV
LEASES AND RENTS
Section 4.1 Space Leases, Rents and Cash Collateral.
(a) As additional collateral security for payment of the
Secured Obligations, and as cumulative of any and all rights and
remedies herein provided, the Company hereby bargains, sells,
transfers, assigns and sets over to the Trustee for the benefit of
the Holders, any and all Space Leases and Rents and any and all cash
collateral to be derived from the Mortgaged Property, or the use and
occupation thereof, or under any contract or bond relating to the
construction or reconstruction of the Mortgaged Property, including
all Rents, royalties, revenues rights, deposits (including security
deposits) and benefits accruing to the Company under all Space
Leases, and the right to receive the same and apply them against the
Secured Obligations or against the Company's other obligations
hereunder or the Company's obligations under the Transaction
Documents, together with all Space Leases, contracts, bonds, leases
and other documents evidencing the same now or hereafter in effect
and all right of the Company thereunder. Nothing contained in the
preceding sentence shall be construed to bind the Trustee to the
performance of any of the provisions of any such Space Lease,
contract, bond, lease or other documents or otherwise impose any
obligation upon the Trustee, except that the Trustee shall be
accountable for any money actually received pursuant to such
assignment to the extent of its disposition thereof in a manner
inconsistent with this Shore Mortgage or the Transaction Documents.
The Company shall deliver to the Trustee upon the Trustee's request
an executed counterpart of each such Space Lease, contract, bond or
other documents. The assignment of said Space Leases, Rents, income
profits, proceeds and cash collateral, and any of the aforesaid
rights with respect thereto and to the contracts, bonds, leases and
other documents evidencing the same, is intended to be and is an
absolute present assignment from the Company to the Trustee and not
merely the passing of a security interest.
(b) So long as there shall exist no Event of Default hereunder
which has not been waived in writing by the Holders in accordance
with the Indenture, the Company shall have the right and license to
exercise all rights, options and privileges extended to the lessor
under the terms of the Space Leases, including, without limitation,
the right to collect all Rents. The Company agrees to hold the same
in trust and to use the same, first, in payment of the Secured
Obligations, second, the Taxes and insurance premiums payable
hereunder and all other charges on or against the Mortgaged Property
and, third, to the expenses of the Company's business in or on the
Mortgaged Property.
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(c) In the event of any such Event of Default which has not
been so waived, the right and license set forth in subparagraph (b)
of this Section shall be automatically revoked, and, thereafter, the
Trustee shall have the right and authority to exercise any of the
rights or remedies referred to or set forth herein. In addition,
upon such an Event of Default, the Company shall promptly pay to the
Trustee (i) all rent prepayments and security or other deposits paid
to the Company pursuant to any Space Leases and (ii) all charges for
services or facilities or for escalations which were paid pursuant
to any Space Leases to the extent allocable to any period from and
after such Event of Default and any such sums received by the
Trustee shall be applied by the Trustee in accordance with Section
6.10 of the Indenture.
(d) If the Company is not required to surrender possession of
the Mortgaged Property hereunder in the event of any such Event of
Default which has not been so waived, the Company will pay monthly
in advance to the Trustee, or to any receiver appointed to collect
same, the income, profits or proceeds received by the Company under
any of the Space Leases.
(e) The Company will upon the Trustee's request execute,
acknowledge and deliver to the Trustee, in form approved by the
Trustee, one or more general or specific assignments of the lessor's
interest under any Space Lease (which are consistent with the
foregoing provisions). The Company will, on demand, pay to the
Trustee, or reimburse the Trustee for the payment of, all costs or
expenses incurred in connection with the preparation or recording of
any such assignment.
(f) The Company will (i) perform or cause to be performed the
lessor's obligations under any Space Lease, (ii) enforce the
performance by the lessee under its respective Space Lease of all of
said lessee's material obligations thereunder and (iii) give the
Trustee prompt notice and a copy of any notice of default, event of
default, termination or cancellation sent or received by the
Company.
(g) Except to the extent expressly permitted herein or under
the other Transaction Documents, the Company will not, without the
Trustee's written consent, (i) assign, mortgage, pledge or otherwise
transfer, dispose of or encumber, whether by operation of law or
otherwise, any Space Lease or the Rents or other income thereunder
or therefrom, (ii) accept or permit the acceptance of a prepayment
of any Rents for more than one month in advance of the due dates
therefor, (iii) amend, modify or otherwise alter any Space Lease or
(iv) cancel, terminate or accept a surrender of any Space Lease.
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(h) The Company will from time to time, promptly upon the
Trustee's request, prepare and deliver to the Trustee such
information concerning the Space Leases as the Trustee shall
request.
ARTICLE V
DEFAULTS AND REMEDIES
Section 5.1 Events of Default. Each of the following shall
constitute an Event of Default hereunder:
(a) the occurrence of an "Event of Default" as defined in
Section 6.1 of the Indenture; or
(b) the failure of the Company to observe and perform any
covenant, condition or agreement on its part to be observed or
performed in this Shore Mortgage (other than an occurrence which may
sooner constitute an "Event of Default" under the Indenture)
including, without limitation, the covenants contained in Article I
herein for a period of thirty (30) days after written notice
specifying such failure and requesting that it be remedied, given to
the Company by the Trustee, unless the Trustee agrees in writing to
an extension of such time prior to its expiration.
Section 5.2 Remedies. Upon the occurrence of an Event of Default,
all Secured Obligations, at the option of the Trustee, shall be accelerated and
become immediately due and payable upon notice to the Company. The outstanding
principal amount and the interest accrued thereon of the Secured Obligations
shall be due and payable without presentment, demand or further notice of any
kind, all of which are hereby expressly waived by the Company. The Company will
pay to the Trustee the entire Secured Obligations or portions thereof, as
applicable, and to the extent permitted by law, the premiums and penalties, if
any, provided in this Shore Mortgage and each other Transaction Document, as
applicable, and such payment shall be applied in accordance with Section 6.10 of
the Indenture.
In the event of any Event of Default, whether or not an acceleration
shall occur, the Trustee shall have the right to proceed to protect and enforce
its rights by one or more of the following remedies:
(a) THE TRUSTEE SHALL HAVE THE RIGHT TO BRING SUIT either for
damages, specific performance of any agreement contained in any
Transaction Document, or for the foreclosure of this Shore Mortgage,
or for the enforcement of any other appropriate legal or equitable
remedy.
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(b) THE TRUSTEE SHALL HAVE THE RIGHT TO OBTAIN A RECEIVER at
any time after an Event of Default, whether or not an action for
foreclosure has been commenced. Any court having jurisdiction shall
at the request of the Trustee following an Event of Default appoint
a receiver to take immediate possession of the Mortgaged Property
and to rent or operate the same as he may deem best for the interest
of all parties concerned, and such receiver shall be liable to
account to the Company only for the net profits, after application
of rents, issues and profits upon the costs and expenses of the
receivership and upon the Secured Obligations.
The Trustee shall have the right, at any time to advance money to
the receiver to pay any part or all of the items which the receiver
should otherwise pay if cash were available from the Mortgaged
Property and sums so advanced, with interest ("Additional Interest")
at the per annum rate equal to the interest rate then borne by the
Notes (the "Additional Interest Rate"), shall be secured hereby, or
if advanced during the period of redemption shall be a part of the
sum required to be paid to redeem from the sale.
(c) THE TRUSTEE SHALL HAVE THE RIGHT TO COLLECT THE RENTS from
the Mortgaged Property and apply the same in the manner hereinbefore
provided with respect to a receiver. For that purpose, the Trustee
may enter and take possession of the Mortgaged Property and manage
and operate the same and take any action which, in the Trustee's
judgment, is necessary or proper to collect the Rents and to
conserve the value of the Mortgaged Property. The Trustee may also
take possession of, and for these purposes use, any and all of the
Security Interests Property. The expense (including any receiver's
fees, attorneys' fees, costs and agent's compensation) incurred
pursuant to the powers herein contained shall be secured by this
Shore Mortgage. The Trustee shall not be liable to account to the
Company for any action taken pursuant hereto other than to account
for any Rents actually received by the Trustee. Enforcement hereof
shall not cause the Trustee to be deemed a Trustee in possession
unless the Trustee elects in writing to be a Trustee in possession.
(d) THE TRUSTEE SHALL HAVE THE RIGHT TO ENTER AND TAKE
POSSESSION of the Mortgaged Property and manage and operate the same
in conformity with all applicable laws and take any action which, in
the Trustee's judgment, is necessary or proper to conserve the value
of the Mortgaged Property.
(e) THE TRUSTEE SHALL HAVE ALL OF THE RIGHTS AND REMEDIES
PROVIDED IN THE IOWA UNIFORM COMMERCIAL CODE, Iowa Code Chapter 554,
including the right to proceed under the Iowa Uniform Commercial
Code provisions governing default as to any Security Interests
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Property separately from the real estate included within the
Mortgaged Property, or to proceed as to all of the Mortgaged
Property in accordance with its rights and remedies in respect of
said real estate. If the Trustee should elect to proceed separately
as to such Security Interests Property, the Company agrees to make
such Security Interests Property available to the Trustee at a place
or places acceptable to the Trustee, and if any notification of
intended disposition of any of such Security Interests Property is
required by law, such notification shall be deemed reasonably and
properly given if given at least ten (10) days before such
disposition in the manner hereinafter provided.
(f) THE TRUSTEE SHALL HAVE THE RIGHT TO FILE PROOF OF CLAIM
and other documents as may be necessary or advisable in order to
have its claims allowed in any receivership, insolvency, bankruptcy,
reorganization, arrangement, adjustment, composition or other
judicial proceedings affecting the Company, its creditors or its
property, for the entire amount due and payable by the Company under
the Secured Obligations, this Shore Mortgage and any other
instrument securing the Secured Obligations, at the date of the
institution of such proceedings, and for any additional amounts
which may become due and payable by the Company after such date.
Each remedy herein specifically given shall be in addition to every other right
now or hereafter given or existing at law or in equity, and each and every right
may be exercised from time to time and as often and in such order as may be
deemed expedient by the Trustee and the exercise or the beginning of the
exercise of one right shall not be deemed a waiver of the right to exercise at
the same time or thereafter any other right. The Trustee shall have all rights
and remedies available under the law in effect now and/or at the time such
rights and remedies are sought to be enforced, whether or not they are available
under the law in effect on the date hereof.
Section 5.3 Expenses of Exercising Rights, Powers and Remedies. The
reasonable expense (including any receiver's fees, attorneys' fees, appraisers'
fees, environmental engineers' and/or consultants' fees, costs incurred for
documentary and expert evidence, stenographers' charges, publication costs,
costs (which may be estimated as to items to be expended after entry of the
decree of foreclosure) of procuring all abstracts of title, continuations of
abstracts of title, title searches and examinations, title insurance policies
and commitments and extensions therefor, Torrens duplicate certificates of
title, UCC and chattel lien searches, and similar data and assurances with
respect to title as the Trustee may deem reasonably necessary either to
prosecute any foreclosure action or to evidence to bidders at any sale which may
be had pursuant to any foreclosure decree the true condition of the title to or
the value of the Mortgaged Property, and agent's compensation) incurred by the
Trustee after the occurrence of any Event of Default under this Shore Mortgage
and/or in pursuing the rights, powers and remedies contained in this Shore
Mortgage shall be immediately due and payable by the Company, with interest
thereon at the Additional Interest Rate, and shall be added to the indebtedness
secured by this Shore Mortgage.
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Section 5.4 Restoration of Position. In case the Trustee shall have
proceeded to enforce any right under this Shore Mortgage by foreclosure, sale,
entry or otherwise, and such proceedings shall have been discontinued or
abandoned for any reason or shall have been determined adversely, then, and in
every such case, the Company and the Trustee shall be restored to their former
positions and rights hereunder with respect to the Mortgaged Property subject to
the lien hereof.
Section 5.5 Marshalling. The Company, for itself and on behalf of
all persons, parties and entities which may claim under the Company, hereby
waives all requirements of law relating to the marshalling of assets, if any,
which would be applicable in connection with the enforcement by the Trustee of
its remedies for an Event of Default hereunder, absent this waiver. The Trustee
shall not be required to sell or realize upon any portion of the Mortgaged
Property before selling or realizing upon any other portion thereof.
Section 5.6 Waivers. No waiver of any provision hereof shall be
implied from the conduct of the parties. Any such waiver must be in writing and
must be signed by the party against which such waiver is sought to be enforced.
The waiver or release of any breach of the provisions set forth herein to be
kept and performed shall not be a waiver or release of any preceding or
subsequent breach of the same or any other provision. No receipt of partial
payment after acceleration of any of the Secured Obligations shall waive the
acceleration. No payment by the Company or receipt by the Trustee of a lesser
amount than the full amount secured hereby shall be deemed to be other than on
account of the sums due and payable hereunder, nor shall any endorsement or
statement on any check or any letter accompanying any check or payment be deemed
an accord and satisfaction, and the Trustee may accept any check or payment
without prejudice to the Trustee's right to recover the balance of such sums or
to pursue any other remedy provided in this Shore Mortgage. The consent by the
Trustee to any matter or event requiring such consent shall not constitute a
waiver of the necessity for such consent to any subsequent matter or event.
Section 5.7 The Trustee's Right to Cure Defaults. If the Company
shall fail to comply with any of the terms hereof with respect to the procuring
of insurance, the payment of taxes, assessments and other charges, the keeping
of the Mortgaged Property in repair, the payment and satisfaction of Liens and
encumbrances against the Mortgaged Property, the payment or performance of the
Leases, the payment of any other sum or deposit required under this Shore
Mortgage, or any other term herein contained, the Trustee may make advances or
take other actions to perform the same without releasing the Company from any
Secured Obligations and may enter upon the Mortgaged Property for any such
purpose and take all such action thereon as the Trustee or any of its duly
appointed agents may deem necessary or appropriate therefor. The Company agrees
to repay upon demand all sums so advanced and all sums expended by the Trustee
in connection with such performance, including without limitation attorneys'
fees, with Additional Interest at the Additional Interest Rate from the dates
such advances are made, and all sums so advanced and/or expenses incurred, with
Additional Interest at the Additional Interest Rate, shall be secured hereby as
Secured Obligations, but no such
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advance and/or incurring of expense by the Trustee, shall be deemed to relieve
the Company from any default hereunder, or to release the Company from any
Secured Obligations. The Trustee shall not be bound to inquire into the validity
of any Imposition or lien which the Company fails to pay as and when required by
this Shore Mortgage and which the Company does not contest in strict accordance
with the terms of this Shore Mortgage.
Section 5.8 Suits and Proceedings. The Trustee shall have the power
and authority, upon prior notice to the Company to institute and maintain any
suits and proceedings as the Trustee may deem advisable to (i) prevent any
impairment of the Mortgaged Property by any acts which may be unlawful or any
violation of this Shore Mortgage, (ii) preserve or protect its interest in the
Mortgaged Property, or (iii) restrain the enforcement of or compliance with any
legislation or other governmental enactment, rule or order that may be
unconstitutional or otherwise invalid, if, in the sole opinion of the Trustee,
the enforcement of or compliance with such enactment, rule or order might impair
the security hereunder or be prejudicial to the Trustee's interest.
Section 5.9 Waiver of Redemption Rights; Alternative Foreclosure
Procedures. It is agreed that if this Shore Mortgage covers any parcel of less
than ten (10) acres of land, and in the event of the foreclosure of this Shore
Mortgage and sale of the property by sheriff's sale in such foreclosure
proceedings, the time of one (1) year for redemption from said sale provided by
the statutes of the State of Iowa with respect to such parcel shall be reduced
to six (6) months provided the Trustee in such action files an election to waive
any deficiency judgment against the Company which may arise out of the
foreclosure proceedings; all to be consistent with the provisions of Chapter 628
of the Iowa Code.
It is further agreed that the period of redemption after a
foreclosure of this Shore Mortgage shall be reduced to sixty (60) days if all of
the three following contingencies develop with respect to any parcel of real
estate included in the Mortgaged Property: (1) the real estate is less than ten
(10) acres in size; (2) the court finds affirmatively that the said real estate
has been abandoned by the owners and those persons personally liable under this
Shore Mortgage at the time of such foreclosure; and (3) the Trustee in such
action files an election to waive any deficiency judgment against the Company or
its successor in interest in such action. Entry of appearance by pleading or
docket entry by or on behalf of the Company shall create a presumption that the
property is not abandoned. Any such redemption period shall be consistent with
all of the provisions of Chapter 628 of the Code of Iowa.
This Section shall not be construed to limit or otherwise affect any
other redemption provisions contained in Chapter 628 of the Iowa Code. This
Section also shall not be construed to limit the Trustee's right to elect
foreclosure without redemption or to elect foreclosure by nonjudicial procedure
as set forth in Chapters 654 and 655A of the Iowa Code. The Company agrees that,
in the event of a foreclosure of the Mortgage, under any provision of Iowa law,
the Trustee shall be entitled to sole possession and use of the Mortgaged
Property during any redemption period.
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Section 5.10 Application of Proceeds. The proceeds from the
foreclosure, sale or lease or any recovery pursuant to Iowa Code Chapter 554 or
hereunder shall be applied to the payment of the Secured Obligations in
accordance with the Indenture if such Secured Obligations have been deemed due
and payable upon the Event of Default. Any surplus of the proceeds shall be paid
to the Company.
ARTICLE VI
MISCELLANEOUS
Section 6.1 Binding Effect; Survival; Number; Gender. This Shore
Mortgage shall be binding on and inure to the benefit of the parties hereto,
their successors and assigns. All representations and warranties contained
herein or otherwise heretofore made by the Company to the Trustee shall survive
the execution, delivery and foreclosure hereof. The singular of all terms used
herein shall include the plural, the plural shall include the singular, and the
use of any gender herein shall include all other genders, where the context so
requires or permits.
Section 6.2 Severability. The unenforceabiity or invalidity of any
provision of this Shore Mortgage as to any persons or circumstances shall not
render that provision unenforceable or invalid as to any other persons or
circumstances.
Section 6.3 Notices. All notices and demands required or permitted
to be given to or made upon any party hereto under any Transaction Document
shall be in writing and shall be personally delivered or sent by certified mail,
postage prepaid, return receipt requested or by a nationally recognized courier,
or by telecopier, and shall be deemed to be given for purposes of this Shore
Mortgage on the day that such writing is delivered or sent to the intended
recipient thereof in accordance with the provisions of this Section. Notices
shall be given to or made upon the respective parties hereto at their respective
addresses set forth below:
If to the Company:
Peninsula Gaining Company, LLC
0xx Xxxxxx Ice Harbor
X.X. Xxx 0000
Xxxxxxx, Xxxx 00000-0000
Attention: Xxxxx X. Xxx
Telephone: (000) 000-0000
Telecopier:(000) 000-0000
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If to the Trustee:
Firstar Bank of Minnesota, N.A.
000 Xxxx 0xx Xxxxxx
Xx. Xxxx, Xxxxxxxxx 00000
Attention: Corporate Trust Department
Either party may change the address for notices by a notice given not less than
five (5) business days prior to the effective date of the change.
Section 6.4 Survival of Warranties, Etc. All agreements,
representations and warranties made herein shall survive the execution and
delivery of this Shore Mortgage.
Section 6.5 Applicable Law. This Shore Mortgage shall be construed
and enforceable in accordance with, and be governed by, the internal laws of the
State of Iowa, without regard to principles of conflict of laws.
Section 6.6 Waiver of Jury Trial. EACH OF THE COMPANY AND THE
TRUSTEE, BY ITS ACCEPTANCE OF THIS SHORE MORTGAGE, IRREVOCABLY WAIVES ANY AND
ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO
THIS SHORE MORTGAGE AND ANY OF THE OTHER SECURITY DOCUMENTS OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY.
Section 6.7 Effect. This Shore Mortgage is in addition to and not in
substitution for any other guaranties, covenants, obligations or other rights
now or hereafter held by the Trustee from any other person or entity in
connection with the Secured Obligations.
Section 6.8 Assignability. The Trustee shall have the right to
assign this Shore Mortgage, in whole or in part or sell participation interests
herein, to any person obtaining an interest in the Secured Obligations.
Section 6.9 Headings. Headings of the Sections of this Shore
Mortgage are inserted for convenience only and shall not be deemed to constitute
a part hereof.
Section 6.10 Security Interest.
(a) An express security interest is hereby granted to the
Trustee in respect to any part of the Mortgaged Property which under
Iowa law might now or hereafter be construed or considered as
personal property or fixtures, or otherwise be considered collateral
subject to the Iowa Uniform Commercial Code, including without
limitation the collateral described in granting clauses (e) hereof,
and this Shore Mortgage shall constitute a security agreement in
respect thereto.
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(b) Upon the occurrence of an Event of Default hereunder in
addition to the other rights and remedies available to it, the
Trustee may exercise all other rights and remedies with respect to
such property that are available to a secured party under the Iowa
Uniform Commercial Code. The Company agrees to pay any reasonable
attorney fees and legal expenses incurred by the Trustee in
enforcing or protecting its rights under the security interest
created hereunder. In the event notice of intended disposition of
such property is required by law in any particular instance, the
Company agrees that notice given in the manner and place provided in
Section 6.3 hereunder and sent ten (10) days prior to a disposition
of collateral is commercially reasonable notification within the
meaning of the Iowa Uniform Commercial Code. Information concerning
the security interests may be obtained from the Secured Party (the
Trustee) at the address set forth in Section 6.3 hereof and the
mailing address of the Debtor (Company) is also set forth in Section
6.3 hereof.
(c) The Company warrants and agrees that no financing
statement or security agreement covering any of the Mortgaged
Property is or will be placed on file in any public office or
delivered to any secured party except pursuant hereto, except for
Permitted Encumbrances and Permitted Liens.
Section 6.11 Fixture Filing. From the date of its recording, this
Shore Mortgage shall be effective as a financing statement filed as a fixture
filing with respect to the collateral described in the Granting Clauses hereof
which are fixtures within the meaning of the Iowa Uniform Commercial Code, and
for this purpose the name and address of the Debtor is the name and address of
the Company, as set out in Section 6.3 herein, and the name and address of the
Secured Party is the name and address of the Trustee, as set out in Section 6.3
hereof. Pursuant to the provisions of Section 554.9403 subparagraph 6 of the
Iowa Code, such fixture filing remains in effect until this Shore Mortgage is
released or satisfied of record or its effectiveness otherwise terminates as to
the Land.
Section 6.12 Defined Terms. All capitalized terms used in this Shore
Mortgage and not defined herein shall have the meanings ascribed to them in the
Indenture.
Section 6.13 Discharge of Lien. In accordance with Section 11.4 of
the Indenture and upon the observance and performance of each and every covenant
and condition set forth herein and in the Indenture and the Notes, then and in
that case all property, rights and interest hereby conveyed or assigned or
pledged shall revert to the Company, and the estate, right, title and interest
of the Trustee therein shall thereupon cease, terminate and become void; and
this Shore Mortgage, and the covenants of the Company contained herein, shall be
discharged and the Trustee in such case on demand of the Company and at the
Company's cost and expense, shall execute and deliver to the Company a proper
instrument or proper instruments acknowledging the satisfaction and termination
of this Shore Mortgage, and shall convey, assign and transfer or
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cause to be conveyed, assigned or transferred, and shall deliver or cause to be
delivered, to the Mortgagor, all property, including money, then held by the
Trustee hereunder.
Section 6.14 Conflicts with Security Agreement. In the event of a
conflict between the provisions of the Security Agreement and the provisions of
this Shore Mortgage, the Shore Mortgage shall govern in all matters relating to
the validity and enforceability of the Lien created hereby on the Real Property,
the Improvements, the Fixtures, the Leases and the Rents and (except as
expressly set forth to the contrary herein or in the Security Agreement), the
Security Agreement shall govern in all other respects.
Section 6.15 Shore Mortgage Absolute. The obligations of the Company
under this Shore Mortgage are independent of the obligations of Company under
the other Transaction Documents, and a separate action or actions may be brought
and prosecuted against Company to enforce this Shore Mortgage, irrespective of
whether any action is brought against Company under such other Transaction
Documents. All rights of Trustee and the mortgage, assignment and security
interest hereunder, and all obligations of Company hereunder, shall be absolute
and unconditional, irrespective of:
(a) any lack of validity or enforceability of any other
Transaction Document or any other agreement or instrument relating
thereto;
(b) any change in the time, manner or place of payment of, or
in any other term of, all or any of the obligations of Company under
the other Transaction Documents or any other amendment or waiver of
or any consent to any departure from the other Transaction
Documents, including, without limitation, any increase in such
obligations resulting from the extension of additional credit to the
Company or otherwise;
(c) any taking, exchange, release or non-perfection of any
other collateral, or any taking, release or amendment or waiver of
or consent to departure from any guaranty, for all or any other of
the obligations of the Company under the other Transaction
Documents;
(d) any manner of application of collateral, or proceeds
thereof, to all or any of the obligations of Company under the other
Transaction Documents, or any manner of sale or other disposition of
any collateral for all or any of such obligations or any other
assets of the Company;
(e) any change, restructuring or termination of the corporate
restructure or existence of the Company; or
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(f) any other circumstance that might otherwise constitute a
defense available to, or a discharge of, the Company or a third
party the Company of a security interest or mortgage.
Section 6.16 Interaction with Indenture. All terms, covenants,
conditions, provisions and requirements of the Indenture are incorporated by
reference in this Shore Mortgage. Notwithstanding any other provision of this
Shore Mortgage, the terms and provisions of this Shore Mortgage shall be subject
and subordinate to the terms of the Indenture. To the extent that the Indenture
provides the Company with a particular cure or notice period, or establishes any
limitations or conditions on the Trustee's actions with regard to a particular
set of facts, the Company shall be entitled to the same cure periods and notice
periods, and Trustee shall be subject to the same limitations and conditions,
under this Shore Mortgage, as under the Indenture, in place of the cure periods,
notice periods, limitations and conditions provided for under this Shore
Mortgage; provided, however, that such cure periods, notice periods, limitations
and conditions shall not be cumulative as between the Indenture and this Shore
Mortgage. In the event of any conflict or inconsistency between the provisions
of this Shore Mortgage and those of the Indenture, including, without
limitation, any conflicts or inconsistencies in any definitions herein or
therein, the provisions or definitions of the Indenture shall govern.
Section 6.17 Excluded Assets. Notwithstanding anything to the
contrary contained herein, if a portion of the Mortgaged Property becomes an
Excluded Asset (as defined in the Indenture) after the Issue Date (as defined in
the Indenture), the Trustee shall, simultaneous with the granting of the
applicable Permitted Lien, without the payment of any partial release for, or
any other prepayment with respect to, the Notes, release the Lien in favor of
the Trustee in such Excluded Asset in accordance with the provisions of Section
11.4 of the Indenture. Once any Excluded Asset is released, such Excluded Asset
shall be expressly excluded from and shall no longer be deemed Mortgaged
Property under this Shore Mortgage and shall not be subject to any of the
representations, covenants or obligations under this Shore Mortgage.
Section 6.18 Indemnity. The Company hereby agrees to indemnify,
defend and hold the Trustee (and its directors, officers, agents and employees)
and each Holder harmless from and against any and all loss, liability, damage,
claim, judgment or expense (including reasonable attorneys' fees and expenses,
bond expenses, printing and automated document preparation and retention
expenses and other ordinary litigation expenses) incurred by it (or such
director, officer, agent or employee) in connection with the acceptance or
administration of the Trustee's duties under this Shore Mortgage, any action or
proceeding to foreclose this Shore Mortgage or in or to which the Trustee or any
Holder may be made a party due to the existence of this Shore Mortgage or the
other Transaction Documents or to which action or proceeding the Trustee or any
Holder may become a party for the purpose of protecting the lien of this Shore
Mortgage. All sums paid by the Trustee or any Holder to prosecute or defend the
rights herein set forth shall be deemed a part of the Secured Obligations and
shall be paid by the Company to the Trustee or such Holder within ten (10) days
after written demand, and if not paid within that period, shall accrue interest
from and including the date of disbursement or advance by the
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Trustee or such Holder to and including the date of payment by the Company at
the Additional Interest Rate.
Section 6.19. Survey. The Company covenants and agrees to obtain a
survey with respect to the Real Property, certified to Chicago Title Insurance
Company and the Trustee, within 30 days following the date of this Mortgage and
further covenants and agrees that (a) to the extent that such survey reveals
that the legal description for all or any portion of the Real Property does not
correspond to the legal description used in the Exhibits to this Mortgage, the
Company and Trustee will cooperate to amend this Mortgage to correct such legal
description, (b) to the extent that such survey reveals any encroachment by a
structure on the Real Property onto an adjoining property or any easement or
other use right on the Real Property that would interfere with the use of the
affected parcel of Real Property for its intended purpose, the Company will
promptly take the necessary steps to remedy the situation, including removing
the encroachment, obtaining a release or modification of the easement or use
right or obtaining a valid easement to maintain the encroachment, and (c) the
Company will deliver to the Trustee, within 30 days of the date of delivery of
the survey to the Trustee, an endorsement or endorsements to the title insurance
policy in favor of the Trustee, removing the survey exception from such policy
and adding to the policy any of the following provisions that were not included
in the policy delivered to the Trustee on the date of this Shore Mortgage:
access, tax parcel, contiguity, creditors rights, "same as survey", lender's
comprehensive (ALTA form 9), zoning and subdivision.
Section 6.20. Hotel Construction. The Company agrees that, prior to
the commencement of construction of a hotel on the Real Property, the Company
will deliver to the Trustee (a) a title insurance policy or commitment, which
shall not contain a survey exception and which shall be in form and substance
acceptable to the Trustee, from Chicago Title Insurance Company or another
insurance company of equal standing, showing that the City of Dubuque has
merchantable title to the parcel of the Real Property on which the hotel is to
be built, subject to a lease of such parcel to the Company for a period of not
less than 20 years, (b) a survey of the parcel, certified to the Trustee and the
title insurance company, showing the legal description thereof and the absence
of any encroachments, easements or other matters that would interfere with the
construction or operation of the hotel on such parcel, (c) a sworn estimate of
construction cost from the architect or engineer for the hotel project, and (d)
a signed loan agreement or other financing arrangements sufficient to pay for
the estimated costs of the hotel.
Section 6.21. Acquisition of Adjacent Parcel. The Company has agreed
to acquire a parcel of real estate adjacent to Parcels A and C listed in Exhibit
A hereto, upon the completion of platting of said parcel. Said parcel is to be
identified as Lot 1 in Adam's Company's Third Addition in the City of Dubuque,
Iowa, assuming the Dubuque City Counsel approves the plat in its presently
proposed form. The Company agrees that, upon completion of the acquisition of
said parcel, the Company (a) will cause said parcel to be included in the title
insurance policy for the parcels described in Exhibit A, or by a separate policy
substantially equivalent to the policy insuring the parcels in Exhibit, at the
Company's option, (b) will deliver
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to the Trustee a survey of the parcel, certified to the Trustee and the title
insurance company, showing the legal description thereof and the absence of any
encroachments, easements or other matters that would interfere with the use of
such parcel, and (c) will execute and deliver to the Trustee an amendment to
this Shore Mortgage, in form and substance acceptable to the Trustee, subjecting
to this Mortgage such additional parcel.
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IN WITNESS WHEREOF, the Company has executed this Shore Mortgage as
of the date first written above.
IMPORTANT: READ BEFORE SIGNING. THE TERMS OF THIS AGREEMENT SHOULD BE READ
CAREFULLY BECAUSE ONLY THOSE TERMS IN WRITING ARE ENFORCEABLE. NO OTHER TERMS OR
ORAL PROMISES NOT CONTAINED IN THIS WRITTEN CONTRACT MAY BE LEGALLY ENFORCED.
YOU MAY CHANGE THE TERMS OF THIS AGREEMENT ONLY BY ANOTHER WRITTEN AGREEMENT.
THIS NOTICE APPLIES TO ALL AGREEMENTS ENTERED INTO TO WHICH THE COMPANY AND THE
TRUSTEE ARE PARTIES.
PENINSULA GAMING COMPANY, LLC
By __________________________
Attest:
__________________________
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STATE OF ________________)
)ss:
COUNTY OF _______________)
On this ____ day of ________________, A.D., 19__ before me, a Notary
Public in and for the State of ________, personally appeared _________________,
to me personally known, who being by me duly sworn did say that the person is
(a) (the) _________________ of Peninsula Gaining Company, LLC, a Delaware
limited liability company, executing the foregoing instrument, that the
instrument was signed on behalf of the said limited liability company by
authority of the limited liability company and the said ______________
acknowledged the execution of said instrument to be the voluntary act and deed
of said limited liability company by it voluntarily executed.
_____________________________________
Notary Public in the State of _______
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EXHIBIT A
Legal Description of Fee Simple Interests
PARCEL A
Lot 3 of Xxxxx Company's 2nd Addition in the City of Dubuque, Dubuque
County, Iowa, according to the recorded plat thereof.
PARCEL B
Lots 7 and 8 of Ice Harbor Development, in the City of Dubuque,
Dubuque County, Iowa, according to the recorded plat thereof.
PARCEL C
Lot 1 of Xxxxx Company's lst Addition in the City of Dubuque, Dubuque
County, Iowa, according to the recorded plat thereof.
EXHIBIT B
The Leases and the Real Property
Subject to Leasehold Interests
Lots 5 and 6 of Ice Harbor Development in the City of Dubuque, Iowa.
IN WITNESS WHEREOF, the Company has executed this Shore Mortgage as of the date
first written above.
IMPORTANT: READ BEFORE SIGNING. THE TERMS OF THIS AGREEMENT SHOULD BE READ
CAREFULLY BECAUSE ONLY THOSE TERMS IN WRITING ARE ENFORCEABLE. NO OTHER TERMS OR
ORAL PROMISES NOT CONTAINED IN THIS WRITTEN CONTRACT MAY BE LEGALLY ENFORCED.
YOU MAY CHANGE THE TERMS OF THIS AGREEMENT ONLY BY ANOTHER WRITTEN AGREEMENT.
THIS NOTICE APPLIES TO ALL AGREEMENTS ENTERED INTO TO WHICH THE COMPANY AND THE
TRUSTEE ARE PARTIES.
PENINSULA GAMING COMPANY, LLC
By /s/ M. Xxxxx Xxxxxxx
--------------------------
M. Xxxxx Xxxxxxx, CEO
Attest:
/s/ Xxxxxxx X. Xxxxxx,
----------------------
Xxxxxxx X. Xxxxxx
Secretary
STATE OF CALIFORNIA )
)ss:
COUNTY OF LOS ANGELES)
On this 9th day of July, A.D., 1999 before me, a Notary Public in and for
the State of CA, personally appeared M. Xxxxx Xxxxxxx, to me personally known,
who being by me duly sworn did say that the person is the CEO of Peninsula
Gaming Company, LLC, a Delaware limited liability company, executing the
foregoing instrument, that the instrument was signed on behalf of the said
limited liability company by authority of the limited liability company and the
said CEO acknowledged the execution of said instrument to be the voluntary act
and deed of said limited liability company by it voluntarily executed.
[NOTARY SEAL] /s/ Xxxxxxxxx Xxxxxx
--------------------------------
Notary Public in the State of CA
