EXHIBIT 4.2
This Mortgage Was Prepared By
And After Recordation This Mortgage
Should Be Returned To:
Xxxx Xxxxxxxxx, Esq.
c/o Mayer, Xxxxx & Xxxxx
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
MORTGAGE, SECURITY AGREEMENT, FINANCING STATEMENT
AND ASSIGNMENT OF LEASES AND RENTS
by
GAMBLERS SUPPLY MANAGEMENT COMPANY
as Mortgagor
to
ISLE OF CAPRI CASINOS, INC.
as Mortgagee
Property Known as
The Xxxx Xxxxxxxxx Gaming Facility
__________________________
MORTGAGE, SECURITY AGREEMENT, FINANCING STATEMENT
AND ASSIGNMENT OF LEASES AND RENTS
THIS MORTGAGE, SECURITY AGREEMENT, FINANCING STATEMENT AND ASSIGNMENT OF
LEASES AND RENTS (this "MORTGAGE") entered into as of October 29, 1999 by
GAMBLERS SUPPLY MANAGEMENT COMPANY, a South Dakota corporation (hereinafter
called "MORTGAGOR"), having its principal place of business c/o Xxxx Xxxxxxxxx
Riverboat Casino, 00000 000xx Xxxxxx, Xxxxxxxxx, Xxxx, in favor of ISLE OF CAPRI
CASINOS, INC., a Delaware corporation, having an office at 000 Xxxxxxxxxx Xxxx,
Xxxxxx, Xxxxxxxxxxx 00000 (hereinafter called "MORTGAGEE"). Terms appearing in
this Mortgage with an initial capital letter that are not otherwise defined
herein, but that are defined in the Credit Agreement (defined below), shall have
the same respective meanings for purposes hereof as such terms have in the
Credit Agreement.
RECITALS
A. LOANS. Pursuant to that certain Credit Agreement dated as of
October 28, 1999 as the same may from time to time be amended, restated,
modified, supplemented or substituted from time to time, the "CREDIT
AGREEMENT"), the Mortgagee has agreed to make certain advances of credit in a
maximum principal amount not to exceed $16,300,000 from time to time to the
Mortgagor (the "LOAN").
B. NOTE. The Loan is evidenced by a certain promissory note of even date
with the Credit Agreement (together with all promissory notes given in
replacement, satisfaction or substitution thereof, and all amendments,
restatements or other modifications of any of the foregoing, the "NOTE"). The
Note and all other obligations of the Mortgagor with respect to the Credit
Agreement are secured by this Mortgage, the Ship Mortgage and the Security
Agreement of even date herewith (together with this Mortgage, the Note and the
Credit Agreement, collectively, as the same may from time to time be amended,
modified or restated, the "LOAN DOCUMENTS").
C. OBLIGATIONS; EXPENSES. This Mortgage secures the principal and
interest under the Note, all fees payable under the Credit Agreement, the
Expenses (as defined below), any additional advances made by Mortgagee in
connection with the Mortgaged Property (defined below) or the Loan, any future
advances made by the Mortgagee and all other amounts payable under the Loan
Documents (the "DEBT") and also secures both the timely payment of the Debt as
and when required and the timely performance of all other obligations and
covenants to be performed under the Loan Documents (the "OBLIGATIONS"). As used
in this Mortgage, the term "EXPENSES" means all fees and expenses incurred by
Mortgagee or that are otherwise payable in connection with the Loan or the
Mortgaged Property including reasonable attorneys' fees and expenses and any
fees and expenses relating to (i) the preparation, execution, acknowledgment,
delivery and recording or filing of the
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Loan Documents; (ii) except as otherwise provided by the Loan Documents, any
proceeding or other claim asserted against Mortgagee; (iii) except as
otherwise provided by the Loan Documents, any inspection, assessment, survey
and test permitted under the Loan Documents; (iv) any adjustment or
evaluation of insurance settlements in respect of a partial or total
destruction of the Mortgaged Property; (v) any participation in condemnation
proceedings related to the Mortgaged Property; (vi) the preservation of
Mortgagee's security and the exercise of any rights or remedies available at
law, in equity or otherwise; and (vii) the Leases (as defined below) and the
exercise of the Contract Rights (as defined below).
NOW, THEREFORE, the Mortgagor, for and in consideration of the aforesaid
Obligations and in order to secure the payment of the Obligations together with
any renewals or extensions or modifications thereof upon the same or different
terms or at the same or different rate of interest and also to secure: (i) all
future advances and readvances that may subsequently be made to Mortgagor by
Mortgagee evidenced by the aforesaid Note, or by other promissory notes, and all
renewals and extensions thereof; and (ii) all other indebtedness of Mortgagor to
Mortgagee now or hereafter existing, whether direct or indirect, the maximum
amount of all indebtedness outstanding at any one time secured hereby not to
exceed an amount equal to $16,300,000, plus interest thereon, all charges and
expenses of collection incurred by Mortgagee including court costs and
reasonable attorney's fees, has MORTGAGED, GRANTED, BARGAINED, SOLD, CONVEYED
AND RELEASED and by these presents does MORTGAGE, GRANT, BARGAIN, SELL, CONVEY
AND RELEASE unto the Mortgagee, its successors and assigns, the following
property:
All of Mortgagor's right, title and interest in and to that certain real
estate legally described in EXHIBIT A hereto (the "LAND"), together with all
after-acquired title in the Land, and together with all right, title and
interest, if any, which Mortgagor may now have or hereafter acquire in and to
all improvements, buildings and structures now or hereafter located thereon of
every nature whatsoever, is herein called the "PREMISES".
TOGETHER WITH all right, title and interest, if any, including any
after-acquired right, title and interest, and including any right of use or
occupancy, which Mortgagor may now have or hereafter acquire in and to (a)
all easements, rights of way, gores of land or any lands occupied by streets,
ways, alleys, passages, sewer rights, water courses, water rights and powers,
and public places adjoining said Land, and any other interests in property
constituting appurtenances to the Premises, or which hereafter shall in any
way belong, relate or be appurtenant thereto, and (b) all hereditaments, gas,
oil, minerals (with the right to extract, sever and remove such gas, oil and
minerals), and easements, of every nature whatsoever, located in or on the
Premises and all other rights and privileges thereunto belonging or
appertaining and all extensions, additions, improvements, betterments,
renewals, substitutions and replacements to or of any of the rights and
interests described in subparagraphs (a) and (b) above (hereinafter the
"PROPERTY RIGHTS").
TOGETHER WITH all right, title and interest, if any, including any
after-acquired right, title and interest, and including any right of use or
occupancy, which Mortgagor may now or hereafter
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acquire in and to all fixtures and appurtenances of every nature whatsoever
now or hereafter located in, on or attached to, and used or intended to be
used in connection with, or with the operation of, the Premises, including,
but not limited to (a) all apparatus, machinery and equipment of Mortgagor
(the "EQUIPMENT"); and (b) all extensions, additions, improvements,
betterments, renewals, substitutions and replacements to or of any of the
foregoing (the "FIXTURES"). It is mutually agreed, intended and declared
that the Premises and all of the Property Rights, Equipment and Fixtures
owned by Mortgagor (referred to collectively herein, together with the Land,
as the "REAL PROPERTY") shall, so far as permitted by law, be deemed for the
purpose of this Mortgage to be real estate and covered by this Mortgage.
TOGETHER WITH all the estate, right, title and interest of the Mortgagor in
and to (i) all judgments, insurance proceeds, awards of damages and settlements
resulting from condemnation proceedings or the taking of the Real Property, or
any part thereof, under the power of eminent domain or for any damage (whether
caused by such taking or otherwise) to the Real Property, or any part thereof,
or to any rights appurtenant thereto, and all proceeds of any sales or other
dispositions of the Real Property or any part thereof; and (except as otherwise
provided herein or in the Credit Agreement) the Mortgagee is hereby authorized
to collect and receive said awards and proceeds and to give proper receipts and
acquittance therefor, and to apply the same as provided in the Credit Agreement;
and (ii) all contract rights, general intangibles, actions and rights in action
relating to the Real Property including, without limitation, all rights to
insurance proceeds and unearned premiums arising from or relating to damage to
the Real Property (all of the foregoing being referred to as the "CONTRACT
RIGHTS"); and (iii) all proceeds, products, replacements, additions,
substitutions, renewals and accessions of and to the Real Property. (The rights
and interests described in this paragraph are called the "INTANGIBLES.")
TOGETHER WITH all right, title and interest, if any, including any
after-acquired right, title and interest that Mortgagor may now or hereafter
acquire in the Rents (as defined below) or the Leases.
BUT EXCLUDING any interest of the Mortgagor in any gaming license.
All of the property described above, and each item of property therein
described, not limited to but including the Mortgagor's fee simple interest in
the Land, the Premises, the Property Rights, the Fixtures, the Real Property,
the Intangibles, the Rents and the Leases, is herein referred to as the
"MORTGAGED PROPERTY."
TO HAVE AND TO HOLD all and singular the Mortgaged Property unto Mortgagee
and the successors or assigns of Mortgagee forever.
PROVIDED ALWAYS, nevertheless, and it is the true intent and meaning of
Mortgagor and the Mortgagee, that if Mortgagor pays or causes to be paid to the
Mortgagee all amounts due under the Obligations, and provided that Mortgagee is
not obligated to disburse any additional amounts
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under the loans evidenced by the Note, the estate hereby granted shall cease,
determine, and be utterly null and void; otherwise said estate shall remain
in full force and effect.
IT IS AGREED that Mortgagor shall be entitled to hold and enjoy the
Mortgaged Property so long as no Event of Default (as defined below) exists.
It is also agreed that if any of the property herein mortgaged is of a
nature so that a security interest therein can be perfected under the Uniform
Commercial Code in effect in the State of Iowa (the "CODE"), this instrument
shall constitute a security agreement, fixture filing and financing statement,
and for that purpose, the following information is set forth:
(a) In addition to the foregoing grant of mortgage, Mortgagor hereby
grants a continuing security interest to the Mortgagee in that portion of the
Mortgaged Property with respect to which the creation and perfection of a lien
is governed by the Code;
(b) The "Debtor" is the Mortgagor and "Secured Party" is the Mortgagee.
(c) Name and Address of Debtor are as set forth in the Preamble to this
document.
(d) Name and address of Secured Party are as set forth in the Preamble to
this document.
(e) DESCRIPTION OF THE TYPES OR ITEMS OF PROPERTY COVERED BY THIS
FINANCING STATEMENT: all of the Mortgaged Property described or referred to
herein in which a security interest may be perfected pursuant to the Code.
(f) DESCRIPTION OF REAL ESTATE TO WHICH COLLATERAL IS ATTACHED OR UPON
WHICH IT IS LOCATED: Described in Exhibit A.
(g) THE TAXPAYER IDENTIFICATION NUMBER OF THE DEBTOR IS: 00-0000000.
(h) Mortgagee may file this Mortgage or a reproduction thereof, in the
real estate records or other appropriate index, as a financing statement for any
of the items specified herein as part of the mortgaged property. Any
reproduction of this Mortgage or of any other security agreement or financing
statement is sufficient as a financing statement.
Mortgagor agrees to execute, deliver and file or refile any financing
statement, continuation statement, or other instruments Mortgagee may reasonably
require from time to time to perfect or renew such security interest under the
Code. To the extent permitted by law, (i) all of the Equipment and Fixtures are
or are to become fixtures on the Land and (ii) this instrument, upon recording
or registration in the real estate records of the proper office, shall
constitute a "fixture-filing" within the meaning of Sections 9-313 and 9-402 of
the Code. Subject to the terms and conditions of the Credit Agreement, the
remedies for any violation of the covenants, terms and conditions of the
agreements
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herein contained shall be as prescribed herein or by general law, or, as to
that part of the security in which a security interest may be perfected under
the Code, by the specific statutory consequences now or hereafter enacted and
specified in the Code, all at the Mortgagee's sole election.
Additionally, Mortgagor (i) does hereby pledge and assign to Mortgagee from
and after the date hereof (including any period of redemption), primarily and on
a parity with the Real Property, and not secondarily, all the rents, issues and
profits of the Real Property and all rents, issues, profits, revenues,
royalties, bonuses, rights and benefits due, payable or accruing (including all
deposits of money as advance rent, for security or as xxxxxxx money or as down
payment for the purchase of all or any part of the Real Property) (the "RENTS")
under any and all present and future leases, contracts or other agreements
relative to the ownership or occupancy of all or any portion of the Real
Property, and (ii) except to the extent such a transfer or assignment is not
permitted by the terms thereof, does hereby transfer and assign to Mortgagee all
such leases and agreements (including all Mortgagor's rights under any contracts
for the sale of any portion of the Mortgaged Property and all revenues and
royalties under any oil, gas and mineral leases relating to the Real Property)
(the "LEASES"). Mortgagee hereby grants to Mortgagor the right to collect and
use the Rents as they become due and payable under the Leases, but not more than
one (1) month in advance thereof, unless an Event of Default shall exist;
PROVIDED that the existence of such right shall not operate to subordinate this
assignment to any subsequent assignment, in whole or in part, by Mortgagor, and
any such subsequent assignment shall be subject to the rights of the Mortgagee
under this Mortgage. Mortgagor further agrees to execute and deliver such
assignments of leases or assignments of land sale contracts as Mortgagee may
from time to time request, provided that such assignments do not grant the
Mortgagee any greater rights than those rights set forth in the Loan Documents.
If an Event of Default exists (1) the Mortgagor agrees, upon demand, to deliver
to the Mortgagee all of the Leases with such additional assignments thereof as
the Mortgagee may request and agrees that the Mortgagee may assume the
management of the Real Property and collect the Rents, applying the same upon
the Obligations in the manner provided in the Credit Agreement, and (2) the
Mortgagor hereby authorizes and directs all tenants, purchasers or other persons
occupying or otherwise acquiring any interest in any part of the Real Property
to pay the Rents due under the Leases to the Mortgagee upon request of the
Mortgagee. Mortgagor hereby appoints Mortgagee as its true and lawful attorney
in fact to manage said property and collect the Rents, with full power to bring
suit for collection of the Rents and possession of the Real Property, giving and
granting unto said Mortgagee and unto its agent or attorney full power and
authority to do and perform all and every act and thing whatsoever requisite and
necessary to be done in the protection of the security hereby conveyed;
PROVIDED, HOWEVER, that (i) this power of attorney and assignment of rents shall
not be construed as an obligation upon said Mortgagee to make or cause to be
made any repairs that may be needful or necessary and (ii) Mortgagee agrees that
so long as no Event of Default exists, Mortgagee shall permit Mortgagor to
perform the aforementioned management responsibilities. Upon Mortgagee's
receipt of the Rents, at Mortgagee's option, it may use the proceeds of the
Rents to pay: (1) reasonable charges for collection thereof, costs of necessary
repairs and other costs requisite and necessary during the continuance of this
power of attorney and assignment of rents, (2) general and special taxes,
insurance premiums, and (3) any or all of the Obligations pursuant to the
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provisions of the Credit Agreement. This power of attorney and assignment of
rents shall be irrevocable until this Mortgage shall have been satisfied and
released of record and the releasing of this Mortgage shall act as a
revocation of this power of attorney and assignment of rents. Mortgagee
shall have and hereby expressly reserves the right and privilege (but assumes
no obligation) to demand, collect, xxx for, receive and recover the Rents, or
any part thereof, now existing or hereafter made, and apply the same in
accordance with the provisions of the Credit Agreement.
Nothing herein contained shall be construed as constituting the Mortgagee
a mortgagee-in-possession in the absence of the taking of actual possession of
the Mortgaged Property by the Mortgagee. Nothing contained in this Mortgage
shall be construed as imposing on Mortgagee any of the obligations of the lessor
under any Lease of the Mortgaged Property in the absence of an explicit
assumption thereof by Mortgagee. In the exercise of the powers herein granted
the Mortgagee, except as provided in the Credit Agreement, no liability shall be
asserted or enforced against the Mortgagee, all such liability being expressly
waived and released by Mortgagor except in cases of Mortgagee's gross negligence
or wilful misconduct.
Mortgagor hereby releases and waives all rights of redemption under and by
virtue of any of the laws, if any, of the State of Iowa (the "STATE"), and
Mortgagor hereby covenants, represents and warrants that, at the time of the
execution and delivery of this instrument, Mortgagor is well seised of a good
and valid fee simple interest in the Mortgaged Property and with lawful
authority to sell, assign, convey and mortgage the Mortgaged Property, and that
the title to the Mortgaged Property is free and clear of all encumbrances,
except as provided in the policy of title insurance delivered to Mortgagee in
connection with the Loan issued by Xxxxxxx Title Insurance Company, and that,
except for such encumbrances, Mortgagor will forever defend the same against all
lawful claims.
The following provisions shall also constitute an integral part of this
Mortgage:
1. PAYMENT OF TAXES. (a) Without limiting any of the provisions of the
Credit Agreement, Mortgagor agrees that, if the United States or any department,
agency or bureau thereof or if the State or any of its subdivisions having
jurisdiction shall at any time require documentary stamps to be affixed to this
Mortgage or shall levy, assess, or charge any tax, assessment or imposition upon
this Mortgage or the credit or indebtedness secured hereby or the interest of
Mortgagee in any of the Mortgaged Property or upon Mortgagee by reason of or as
holder of any of the foregoing then, Mortgagor shall pay for such documentary
stamps in the required amount and deliver them to Mortgagee or pay (or reimburse
Mortgagee for) such taxes, assessments or impositions. Mortgagor agrees to
exhibit to Mortgagee, at any time upon request, official receipts showing
payment of all taxes, assessments and charges which Mortgagor is required or
elects to pay under this paragraph. Mortgagor agrees to indemnify Mortgagee
against liability on account of such documentary stamps, taxes, assessments or
impositions, whether such liability arises before or after payment of the
Obligations and regardless of whether this Mortgage shall have been released.
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(b) Mortgagor shall pay promptly when due all taxes, assessments,
rates, dues, charges, fees, levies, fines, impositions, liabilities,
obligations, liens and encumbrances of every kind and nature whatsoever now or
hereafter imposed, levied or assessed upon or against the Mortgaged Property or
any part thereof, as well as all taxes, assessments and other governmental
charges levied and imposed by the United States of America or any state, county,
municipality or other taxing authority upon or in respect of the Mortgaged
Property or any part thereof; provided, however, that Mortgagor may in good
faith contest the validity, applicability or amount of any asserted tax,
assessment or other charge provided that such tax, assessment or other charge is
paid under protest prior to the date that such tax, assessment or other charge
becomes past due.
2. LEASES AFFECTING THE REAL PROPERTY. Mortgagor agrees faithfully to
perform all of its material obligations under all present and future Leases at
any time assigned to Mortgagee as additional security, and to refrain from any
action or inaction which would result in termination of any such Leases or in
the diminution of the value thereof or of the Rents due thereunder. All future
lessees under any Lease made after the date of recording of this Mortgage shall,
at Mortgagee's option and without any further documentation, attorn to Mortgagee
as lessor if for any reason Mortgagee becomes lessor thereunder, and, upon
demand, pay rent to Mortgagee, and Mortgagee shall not be responsible under such
Lease for matters arising prior to Mortgagee becoming lessor thereunder;
provided, however, Mortgagee shall not become lessor or obligated as lessor
under any such Leases unless or until it shall elect in writing to do so.
Mortgagee acknowledges that there are no Leases as of the date hereof.
3. USE OF THE REAL PROPERTY. Mortgagor agrees that it shall not permit
the public to use the Real Property in any manner that might tend, in
Mortgagee's reasonable judgment, to impair Mortgagor's title to such property or
any portion thereof, or to make possible any claim or claims of easement by
prescription or of implied dedication to public use.
4. COMPLIANCE WITH LAWS AND OTHER RESTRICTIONS. Mortgagor covenants and
represents that the Mortgaged Property and the use thereof presently comply in
all material respects with, and will during the full term of this Mortgage
continue to comply in all material respects with, all applicable restrictive
covenants, zoning and subdivision ordinances and building codes, licenses,
health and environmental laws and regulations and all other applicable laws,
ordinances, rules and regulations.
Mortgagor shall preserve and maintain the Mortgaged Property in good
operating condition and repair. Mortgagor shall not, without the prior written
consent of Mortgagee, which shall not unreasonably be withheld or delayed,
permit, commit or suffer any waste, impairment or deterioration of the Mortgaged
Property or of any part thereof, and will not take any action which will
increase the risk of fire or other hazard to the Mortgaged Property or to any
part thereof. No new improvements shall be constructed on the Mortgaged
Property and no part of the Mortgaged Property shall be removed, demolished or
altered in any material manner without the prior written
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consent of Mortgagee, which shall not unreasonably be withheld or delayed.
Mortgagor shall cause the Mortgaged Property to be managed at all times in
accordance with sound business practice.
5. LITIGATION INVOLVING MORTGAGED PROPERTY. Mortgagor shall promptly
notify Mortgagee of any material litigation, administrative procedure or
proposed legislative action initiated against Mortgagor or the Mortgaged
Property or in which the Mortgaged Property is directly or indirectly affected
including any proceedings which seek to (i) enforce any lien against the
Mortgaged Property, (ii) correct, change or prohibit any existing condition,
feature or use of the Mortgaged Property, (iii) condemn or demolish the
Mortgaged Property, (iv) take, by the power of eminent domain, any portion of
the Mortgaged Property or any property which would damage the Mortgaged
Property, (v) modify the zoning applicable to the Mortgaged Property, or (vi)
otherwise adversely affect the Mortgaged Property. Except in the cases of
Mortgagee's gross negligence or wilful misconduct, Mortgagor shall initiate or
appear in any legal action or other appropriate proceedings when necessary to
protect the Mortgaged Property from damage. Mortgagor shall, upon written
request of Mortgagee, represent and defend the interests of Mortgagee in any
proceedings described in this Section or, in cases where Mortgagor's appointed
counsel is determined by Mortgagee, in its sole but reasonable discretion, to be
insufficient, pay the reasonable fees and expenses of any counsel retained by
Mortgagee to represent the interest of Mortgagee in any such proceedings, in
which event such fees and expenses shall bear interest at the Post-Maturity Rate
and such fees and expenses, together with interest, shall be added to the
Obligations.
6. INDEMNIFICATION. Mortgagor shall not use or permit the use of any
part of the Real Property for an illegal purpose, including, without limitation,
the material violation of any environmental laws, statutes, codes, regulations
or practices. Without limiting, but subject to, any indemnification Mortgagor
has granted in the Credit Agreement, Mortgagor agrees to indemnify and hold
harmless Mortgagee from and against any and all losses, suits, Obligations,
fines, damages, judgments, penalties, claims, charges, costs and expenses
(including reasonable attorneys' and paralegals' fees, court costs and
disbursements) which may be imposed on, incurred or paid by or asserted against
the Real Property by reason or on account of or in connection with: (i) the
construction, reconstruction or alteration of the Real Property, (ii) any
negligence or misconduct of Mortgagor, any lessee of the Real Property, or any
of their respective agents, contractors, subcontractors, servants, employees,
licensees or invitees, (iii) any accident, injury, death or damage to any person
or property occurring in, on or about the Real Property or any street, drive,
sidewalk, curb or passageway adjacent thereto, or (iv) any other transaction
arising out of or in any way connected with the Mortgaged Property except in
cases of Mortgagee's gross negligence or wilful misconduct.
7. INSURANCE. (a) Mortgagor shall, at its sole expense, obtain for,
deliver to, assign and maintain for the benefit of Mortgagee until the
Obligations are paid in full, insurance policies as specified in the Credit
Agreement. Such insurance policies and the assignment thereof shall be
evidenced by such certificates, endorsements and copies of policies as Mortgagee
shall reasonably require.
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(b) ADJUSTMENT OF LOSS. Mortgagee is hereby authorized and
empowered, at its option, to adjust or compromise any loss under any insurance
policies covering the Mortgaged Property and to collect and receive the proceeds
from any such policy or policies. Mortgagor hereby irrevocably appoints
Mortgagee as its attorney-in-fact for the purposes set forth in the preceding
sentence, which appointment is coupled with an interest. Each insurance company
is hereby authorized and directed to make payment of 100% of all such losses
directly to Mortgagee alone. After deducting from such insurance proceeds any
expenses incurred by Mortgagee in the collection and settlement thereof,
including without limitation reasonable attorneys' and adjusters' fees and
charges, Mortgagee shall apply the net proceeds as provided in clause (d) of
this Section. Mortgagee shall not be responsible for any failure to collect any
insurance proceeds due under the terms of any policy regardless of the cause of
such failure, except in cases of Mortgagee's gross negligence or wilful
misconduct.
(c) CONDEMNATION AWARDS. Mortgagee shall be entitled to all
compensation, awards, damages, claims, rights of action and proceeds of, or
on account of, (i) any damage or taking, pursuant to the power of eminent
domain, of the Mortgaged Property or any part thereof, (ii) damage to the
Mortgaged Property by reason of the taking, pursuant to the power of eminent
domain, of other property, or (iii) the alteration of the grade of any street
or highway on or about the Mortgaged Property. Mortgagee is hereby
authorized, at its option, to commence, appear in and prosecute in its own or
Mortgagor's name any action or proceeding relating to any such compensation,
awards, damages, claims, rights of action and proceeds and to settle or
compromise any claim in connection therewith. Mortgagor hereby irrevocably
appoints Mortgagee as its attorney-in-fact for the purposes set forth in the
preceding sentence, which appointment is coupled with an interest.
Mortgagee, after deducting from such compensation, awards, damages, claims,
rights of action and proceeds all its expenses, including reasonable
attorneys' fees, may apply such net proceeds (except as otherwise provided in
clause (d) of this Section of this Mortgage) to payment of the Obligations.
Mortgagor agrees to execute such further assignments of any compensation,
awards, damages, claims, rights of action and proceeds as Mortgagee may
require, provided such assignments are consistent with the provisions of the
Loan Documents.
(d) REPAIR; PROCEEDS OF CASUALTY INSURANCE AND EMINENT DOMAIN. If
all or any part of the Mortgaged Property shall be damaged or destroyed by fire
or other casualty or shall be damaged or taken through the exercise of the power
of eminent domain or other cause described in clause (c), Mortgagor shall
promptly and with all due diligence restore and repair the Mortgaged Property
whether or not the proceeds, award or other compensation are sufficient to pay
the cost of such restoration or repair. The entire amount of such proceeds,
award or compensation shall be applied to the Obligations in such order and
manner as Mortgagee may elect, whether or not Mortgagee has declared the
Obligations to be immediately due and payable pursuant to the Credit Agreement
or the Note. Such proceeds, award or other compensation shall be made available
to Mortgagor on such terms and conditions as Mortgagee may impose for the
purpose of financing the cost of restoration or repair with any excess to be
applied to the Obligations.
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8. REMEDIES. Subject to the provisions of the Credit Agreement, upon the
occurrence of an Event of Default under the terms of the Credit Agreement
("EVENT OF DEFAULT"), in addition to any rights and remedies provided for in the
Credit Agreement, and to the extent permitted by applicable law, the following
provisions shall apply:
(a) Mortgagee may, at its option and without notice to or demand upon
Mortgagor:
(i) Declare any or all indebtedness secured by this Mortgage to
be due and payable immediately.
(ii) Bring a court action to enforce the provisions of or any of
the indebtedness or obligations secured by this Mortgage.
(iii) Foreclose this Mortgage, either by judicial or
non-judicial proceedings, at Mortgagee's option.
(iv) Exercise all rights and remedies of a secured party under
the Iowa Uniform Commercial Code.
(v) Exercise any or all of the rights and remedies provided for
herein or under any of the other Loan Documents upon the occurrence of an Event
of Default hereunder.
(vi) Exercise any other right or remedy available under law or in
equity.
(b) APPOINTMENT OF RECEIVER. Mortgagor hereby consents to and agrees
that at any time after commencement of a judicial foreclosure action, through
and including the period of redemption, the court having jurisdiction of the
case shall, at the request of Mortgagee, appoint a receiver to take possession
of the Mortgaged Property and of the rents and profits accruing therefrom, and
Mortgagor hereby waives its right to possession, statutory or otherwise.
Mortgagor agrees that this Mortgage gives to Mortgagee the right to possession
before sale and termination of the right of redemption, pledges the rents and
profits, creates in favor of Mortgagee a lien upon and interest in the right of
possession given by Iowa statutes, and upon the revenue which arises from it,
and waives the right to challenge the appointment of a receiver.
(c) APPLICATION OF SALE PROCEEDS. To the extent permitted by law,
the proceeds of any sale under this Mortgage shall be applied in the following
manner:
FIRST: To payment of the costs and expenses of the sale, including,
without limitation, reasonable attorneys' fees and disbursements, title charges,
and transfer taxes, together with interest on all advances made from date of
disbursement at the Post-Maturity Rate from time to time or at the maximum rate
permitted to be charged under applicable law, if less.
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SECOND: To payment of all sums expended by Mortgagee under the terms
of this Mortgage and not yet repaid, together with interest on such sums from
the date of disbursement at the Post-Maturity Rate.
THIRD: To payment of all other Obligations secured by this Mortgage
(including, without limitation, any applicable prepayment penalty or fee) in any
order that Mortgagee chooses.
FOURTH: The remainder, if any, to the person or persons legally
entitled to it.
(d) WAIVER OF ORDER OF SALE AND MARSHALLING. Mortgagor waives all
rights to direct the order in which any of the Mortgaged Property will be sold
in the event of any sale under this Mortgage, and also any right to have any of
the Mortgaged Property marshaled upon any sale.
(e) NON-WAIVER OF DEFAULTS. The entering upon and taking possession
of the Property, the collection of any partial payment, Rents, the proceeds of
fire and other insurance policies, or compensation or awards for any taking or
damage of the Mortgaged Property, and the application or release thereof as
herein provided, shall not cure or waive any default or notice of default
hereunder or invalidate any act done pursuant to such notice.
(f) REDEMPTION PERIOD; EXPENSES DURING REDEMPTION PERIOD.
(i) Mortgagor hereby agrees that, in the event of judicial
foreclosure of this Mortgage, the Mortgagee may, at its sole option, elect:
(1) Pursuant to Iowa Code Section 628.26 as now enacted or
hereafter modified, amended or replaced, to reduce the period of redemption
after sale and foreclosure to six months; or
(2) Pursuant to Iowa Code Section 628.27 as now enacted or
hereafter modified, amended or replaced, to reduce the period of redemption
after sale and foreclosure to 60 days; or
(3) Pursuant to Iowa Code Section 628.28 as now enacted or
hereafter modified, amended or replaced, or any other Iowa Code Section, to
reduce the period of redemption after sale and foreclosure to such time as may
then be applicable and provided by law; or
(4) Pursuant to Iowa Code Section 654.20 as now enacted or
hereafter modified, amended or replaced, to foreclose without redemption.
(ii) If the Mortgaged Property is sold at a foreclosure sale, the
purchaser may, during any redemption period allowed, make such repairs or
alterations to the Mortgaged Property as may be reasonably necessary for the
proper operation, care, preservation, protection, and
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insuring thereof. Any sums so paid, together with interest thereon from the
time of such expenditure at the rate of 18 percent per annum or the highest
rate permitted by applicable law, if less, shall be added to and become a
part of the amount required to be paid for redemption from such sale.
(g) FORECLOSURE SUBJECT TO TENANCIES. Mortgagee shall have the
right, at its option, to foreclose this Mortgage subject to the rights of any
tenant or tenants of the Mortgaged Property.
(h) REMEDIES CUMULATIVE. To the extent permitted by law, every right
and remedy provided in this Mortgage is distinct and cumulative to all other
rights or remedies under this Mortgage or afforded by law or equity or any other
agreement between Mortgagee and Mortgagor, and may be exercised concurrently,
independently, or successively, in any order whatsoever. Mortgagee may exercise
any of its rights and remedies at its option without regard to the adequacy of
its security.
(i) MORTGAGEE'S EXPENSES. Mortgagor shall pay all of Mortgagee's
reasonable expenses incurred in any effort to enforce any terms of this
Mortgage, whether or not any suit is filed, including, without limitation,
reasonable attorneys' fees and disbursements, foreclosure costs, and title
charges. All such sums, with interest thereon, shall be additional
indebtedness of Mortgagor secured by this Mortgage. Such sums shall be
immediately due and payable and shall bear interest from the date of
disbursement at the Post-Maturity Rate.
9. MORTGAGEE'S REMEDIES AGAINST MULTIPLE PARCELS. If more than one
property, lot or parcel is covered by this Mortgage, and if this Mortgage is
foreclosed upon, or judgment is entered upon any Obligations secured hereby
execution may be made upon any one or more of the properties, lots or parcels
and not upon the others, or upon all of such properties or parcels, either
together or separately, and at different times or at the same time, and
execution sales or sales by advertisement may likewise be conducted separately
or concurrently, in each case at Mortgagee's election.
10. NO MERGER. In the event of a foreclosure of this Mortgage or any
other mortgage securing the Obligations, the Obligations then due the Mortgagee
shall, at Mortgagee's option, not be merged into any decree of foreclosure
entered by the court, and Mortgagee may concurrently or subsequently seek to
pursue Mortgagee's remedies under one or more of the other Loan Documents, that
also secure said Obligations, and the validity and enforceability of the lien of
this Mortgage shall not be affected by the order in which this Mortgage may be
foreclosed (or a power of sale exercised) relative to any other proceeding
instituted with respect to any other Loan Document.
11. NOTICES. All notices and other communications provided to any party
hereto under this Mortgage shall be given in the manner provided in the Credit
Agreement and addressed or delivered to such party at its address set forth
below or at such other address as may be designated by such party in a notice to
the other parties.
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if to Mortgagor:
c/o Lady Luck Gaming Corp.
000 X. Xxxxx Xx.
Xxx Xxxxx, Xxxxxx 00000
if to Mortgagee:
Isle of Capri Casinos, Inc.
000 Xxxxxxxxxx Xxxx
Xxxxxx, Xxxxxxxxxxx 00000
Attention: Chief Executive Officer
Facsimile No.: (000) 000-0000
with a copy to:
Xxxxx, Xxxxx & Xxxxx
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxx X. Xxxxxx
Facsimile No.: (000) 000-0000
Mortgagor or Mortgagee shall, from time to time, have the right to specify as
the proper addressee and/or address for the purposes of this Mortgage any other
party or address in the United States upon giving five (5) days' written notice
thereof.
12. EXTENSION OF PAYMENTS. Mortgagor agrees that, without affecting the
liability of any person for payment of the Obligations secured hereby or
affecting the lien of this Mortgage upon the Mortgaged Property or any part
thereof (other than persons or property explicitly released as a result of the
exercise by Mortgagee of its rights and privileges hereunder), Mortgagee may at
any time and from time to time, on request of the Mortgagor, without notice to
any person liable for payment of any Obligations secured hereby, but otherwise
subject to the provisions of the Credit Agreement, extend the time, or agree to
alter or amend the terms of payment of such Obligations. Mortgagor further
agrees that any part of the security herein described may be released with or
without consideration without affecting the remainder of the Obligations or the
remainder of the security.
13. GOVERNING LAW. Mortgagor agrees that this Mortgage is to be
construed, governed and enforced in accordance with the laws of the State.
Wherever possible, each provision of this Mortgage shall be interpreted in such
manner as to be effective and valid under applicable law, but if any provision
of this Mortgage shall be prohibited by or invalid under applicable law, such
provision shall be ineffective only to the extent of such prohibition or
invalidity, without invalidating the remainder of such provision or the
remaining provisions of this Mortgage.
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14. SATISFACTION OF MORTGAGE. Upon full payment of all the Obligations,
at the time and in the manner provided in the Credit Agreement, or upon
satisfaction of the conditions set forth in the Credit Agreement for release of
the Mortgaged Property from this Mortgage, this conveyance or lien shall be null
and void and, upon demand therefor following such payment or satisfaction of the
conditions set forth in the Credit Agreement for release of the Mortgaged
Property, as the case may be, a satisfaction of mortgage or reconveyance of the
Mortgaged Property shall promptly be provided by Mortgagee to Mortgagor.
15. SUCCESSORS AND ASSIGNS INCLUDED IN PARTIES. This Mortgage shall be
binding upon the Mortgagor and upon the successors, assigns and vendees of the
Mortgagor and shall inure to the benefit of the Mortgagee's successors and
assigns; all references herein to the Mortgagor and to the Mortgagee shall be
deemed to include their respective successors and assigns. Mortgagor's
successors and assigns shall include, without limitation, a receiver, trustee or
debtor in possession of or for the Mortgagor. Wherever used, the singular
number shall include the plural, the plural shall include the singular, and the
use of any gender shall be applicable to all genders.
16. WAIVER OF APPRAISEMENT, VALUATION, STAY, EXTENSION AND REDEMPTION
LAWS. Mortgagor agrees, to the full extent permitted by law, that at all times
during the existence of an Event of Default, neither Mortgagor nor anyone
claiming through or under it shall or will set up, claim or seek to take
advantage of any appraisement, valuation, stay, or extension laws now or
hereafter in force, in order to prevent or hinder the enforcement or foreclosure
of this Mortgage or the absolute sale of the Mortgaged Property or the final and
absolute putting into possession thereof, immediately after such sale, of the
purchaser thereat; and Mortgagor, for itself and all who may at any time claim
through or under it, hereby waives, to the full extent that it may lawfully so
do, the benefit of all such laws and any and all right to have the assets
comprising the Mortgaged Property marshaled upon any foreclosure of the lien
hereof and agrees that Mortgagee or any court having jurisdiction to foreclose
such lien may sell the Mortgaged Property in part or as an entirety. To the
full extent permitted by law, Mortgagor hereby waives any and all statutory or
other rights of redemption from sale under any order or decree of foreclosure of
this Mortgage, on its own behalf and on behalf of each and every person
acquiring any interest in or title to the Mortgaged Property subsequent to the
date hereof. Mortgagor further waives, to the full extent it may lawfully do
so, all statutory or other rights in its favor, limiting concurrent actions to
foreclose this Mortgage and exercising other rights with respect to the
Obligations.
17. INTERPRETATION WITH OTHER DOCUMENTS. Notwithstanding anything in this
Mortgage to the contrary, in the event of a conflict or inconsistency between
the Mortgage and the Credit Agreement, the provisions of the Credit Agreement
shall govern.
18. FUTURE ADVANCES. This Mortgage is given for the purpose of securing
loan advances which the Mortgagee has made and may make to or for Mortgagor
pursuant and subject to the terms and provisions of the Credit Agreement. The
parties hereto intend that, in addition to any other debt or obligation secured
hereby, this Mortgage shall secure unpaid balances of loan advances made by
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the Mortgagee to the Mortgagor after this Mortgage is delivered to the office
of the County Recorder of Xxxxxxx County, Iowa, whether made pursuant to an
obligation of Mortgagee or otherwise, and in such event, such advances shall
be secured to the same extent as if such future advances were made on the
date hereof, although there may be no advance made at the time of execution
hereof and although there may be no indebtedness outstanding at the time any
advance is made. Such loan advances may or may not be evidenced by notes
executed pursuant to the Credit Agreement.
19. NO VIOLATION OF USURY LAWS. Interest, fees, and charges collected or
to be collected in connection with the indebtedness secured hereby shall not
exceed the maximum, if any, permitted by applicable law. If any such law is
interpreted so that such interest, fees, or charges would exceed any such
maximum and Mortgagor is entitled to the benefit of such law, then (a) such
interest, fees, or charges shall be reduced to the permitted maximum; and (b)
any sums already paid to Mortgagee which exceeded the permitted maximum shall be
refunded. Mortgagee may choose to make the refund either by treating the
payments, to the extent of the excess, as prepayments of principal (without
application of any prepayment fee) or by making a direct payment to the
person(s) entitled thereto. The provisions of this Section 19 shall control
over any inconsistent provision of this Mortgage, the Credit Agreement, or any
other Loan Documents. Notwithstanding any reference to the highest lawful rate,
maximum interest rate permitted to be charged by relevant law, or other like
references or terms, such references or terms shall not be construed to
establish a maximum lawful rate of interest as contemplated by Iowa Code Section
535.2 since the parties have agreed in writing to a rate of interest pursuant to
Iowa Code Section 535.2.2. There shall be no automatic reduction to the highest
lawful rate or any other like term as to any Mortgagor or other party barred by
law from availing itself in any action or proceeding of the defense of usury, or
any Mortgagor or other party barred or exempted from the operation of any law
limiting the amount of interest that may be paid for the loan or use of money,
or in the event this transaction, because of its amount or purpose or for any
other reason, is exempt from the operation of any statute limiting the amount of
interest that may be paid for the loan or use of money. Mortgagor agrees that
any late payment fee, late fee, late charge, delinquency charge, or other like
charge shall be interest for the purposes of Iowa law.
20. INVALID PROVISIONS TO AFFECT NO OTHERS. In the event that any of the
covenants, agreements, terms or provisions contained in this Mortgage shall be
invalid, illegal or unenforceable in any respect, the validity of the remaining
covenants, agreements, terms or provisions contained herein or in the Credit
Agreement shall not be in any way affected, prejudiced or disturbed thereby. In
the event that the application of any of the covenants, agreements, terms or
provisions of this Mortgage is held to be invalid, illegal or unenforceable,
those covenants, agreements, terms and provisions shall not be in any way
affected, prejudiced or disturbed when otherwise applied.
21. CHANGES. Neither this Mortgage nor any term hereof may be changed,
waived, discharged or terminated orally, or by any action or inaction, but only
by an instrument in writing signed by the party against which enforcement of the
change, waiver, discharge or termination is sought. To the extent permitted by
law, any agreement hereafter made by Mortgagor and Mortgagee
15
relating to this Mortgage shall be superior to the rights of the holder of
any intervening lien or encumbrance.
22. TIME OF ESSENCE. Time is of the essence with respect to the
provisions of this Mortgage.
23. NO STRICT CONSTRUCTION. The parties hereto have participated jointly
in the negotiation and drafting of this Mortgage. In the event an ambiguity or
question of intent or interpretation arises, this Mortgage shall be construed as
if drafted jointly by the parties hereto and no presumption or burden of proof
shall arise favoring or disfavoring any party by virtue of the authorship of any
provisions of this Mortgage.
24. STATUTORY NOTICE. IMPORTANT: READ BEFORE SIGNING. THE TERMS OF THIS
MORTGAGE SHOULD BE READ CAREFULLY BECAUSE ONLY THOSE TERMS IN WRITING ARE
ENFORCEABLE. NO OTHER TERMS OR ORAL PROMISES NOT CONTAINED IN THIS MORTGAGE MAY
BE LEGALLY ENFORCED. YOU MAY CHANGE THE TERMS OF THIS MORTGAGE ONLY BY ANOTHER
WRITTEN AGREEMENT. THIS NOTICE IS ALSO EFFECTIVE WITH RESPECT TO ALL OTHER
CREDIT AGREEMENTS BETWEEN THE PARTIES HERETO.
NOTICE: THIS MORTGAGE SECURES CREDIT IN THE AMOUNT OF $16,300,000. LOANS
AND ADVANCES UP TO THIS AMOUNT, TOGETHER WITH INTEREST, ARE SENIOR TO
INDEBTEDNESS TO OTHER CREDITORS UNDER SUBSEQUENTLY RECORDED OR FILED MORTGAGES
AND LIENS.
[Signature Page Follows]
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IN WITNESS WHEREOF, this instrument is executed as of the day and year
first above written by the person or persons identified below on behalf of
Mortgagor (and said person or persons hereby represent that they possess full
power and authority to execute this instrument).
GAMBLERS SUPPLY MANAGEMENT COMPANY, a South
Dakota corporation
By: /s/ XXXX X. XXXX
-------------------------------------
Name: Xxxx X. Xxxx
-----------------------------------
Title: Secretary
----------------------------------
STATE OF ILLINOIS )
) SS
COUNTY OF XXXX )
I, ___________________, a notary public of and for the aforesaid State and
County do hereby certify that there appeared before me
_________________________, the ____________________ of GAMBLERS SUPPLY
MANAGEMENT COMPANY, a South Dakota corporation, on behalf of said corporation as
its act and deed, for the uses and purposes therein mentioned.
_____________________________
Notary Public
SWORN TO before me this
____ day of October, 1999.
_____________________________
Notary Public for ______________
My Commission Expires:________
