Exhibit 45.4(H)




 





EXHIBIT H


 


MORTGAGE, ASSIGNMENT OF LEASES AND RENTS,

SECURITY AGREEMENT AND FIXTURE FILING


 


BY


 


JALOU OF LAROSE, LLC


 


Mortgagor,


 


TO


 


WELLS FARGO BANK, NATIONAL ASSOCIATION,


 


as Trustee,


 


Mortgagee


 


Securing Principal Indebtedness of $148,000,000


 


Dated as of February 28, 2006


 


 


Relating to Premises located in:


 


Lafourche Parish, Louisiana




 





 


 


After recording, please return to:


 


Hahn Loeser & Parks LLP


3300 B.P. Tower


200 Public Square


Cleveland, Ohio 44256


Attn: Stanley R. Gorom III, Esq.


 


 






 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  PREAMBLE

  	
   

  	
  1

  
	
   

  	
   

  	
   

  
	
  RECITALS

  	
   

  	
  1

  
	
   

  	
   

  	
   

  
	
  AGREEMENT

  	
   

  	
  2

  
	
   

  	
   

  	
   

  
	
  ARTICLE I

  
	
   

  	
   

  	
   

  
	
  DEFINITIONS AND
  INTERPRETATION

  
	
   

  	
   

  
	
  SECTION 1.1

  	
  Definitions

  	
  2

  
	
  SECTION 1.2

  	
  Interpretation

  	
  7

  
	
  SECTION 1.3

  	
  Resolution of Drafting
  Ambiguities

  	
  7

  
	
   

  	
   

  	
   

  
	
  ARTICLE II

  
	
   

  	
   

  	
   

  
	
  GRANTS AND SECURED
  OBLIGATIONS

  
	
   

  	
   

  
	
  SECTION 2.1

  	
  Grant of Mortgaged
  Property

  	
  8

  
	
  SECTION 2.2

  	
  Assignment of Leases
  and Rents

  	
  8

  
	
  SECTION 2.3

  	
  Secured Obligations

  	
  9

  
	
  SECTION 2.4

  	
  Future Advances

  	
  9

  
	
  SECTION 2.5

  	
  No Release

  	
  9

  
	
   

  	
   

  	
   

  
	
  ARTICLE III

  
	
   

  	
   

  	
   

  
	
  REPRESENTATIONS AND
  WARRANTIES OF MORTGAGOR

  
	
   

  	
   

  
	
  SECTION 3.1

  	
  Authority and Validity

  	
  10

  
	
  SECTION 3.2

  	
  Warranty of Title

  	
  10

  
	
  SECTION 3.3

  	
  Condition of Mortgaged
  Property

  	
  10

  
	
  SECTION 3.4

  	
  Leases

  	
  12

  
	
  SECTION 3.5

  	
  Insurance

  	
  12

  
	
  SECTION 3.6

  	
  Charges

  	
  12

  
	
  SECTION 3.7

  	
  Environmental

  	
  13

  
	
  SECTION 3.8

  	
  No Conflicts, Consents,
  etc

  	
  13

  
	
  SECTION 3.9

  	
  Benefit to the
  Mortgagor

  	
  14

  
	
   

  	
   

  	
   

  



 


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  ARTICLE IV

  
	
   

  	
   

  	
   

  
	
  CERTAIN COVENANTS OF
  MORTGAGOR

  
	
   

  	
   

  
	
  SECTION 4.1

  	
  Preservation of
  Corporate Existence

  	
  14

  
	
  SECTION 4.2

  	
  Title

  	
  14

  
	
  SECTION 4.3

  	
  Maintenance and Use of
  Mortgaged Property; Alterations

  	
  15

  
	
  SECTION 4.4

  	
  Notices Regarding
  Certain Defaults

  	
  15

  
	
  SECTION 4.5

  	
  Access to Mortgaged
  Property, Books and Records; Other Information

  	
  16

  
	
  SECTION 4.6

  	
  Limitation on Liens;
  Transfer Restrictions

  	
  16

  
	
  SECTION 4.7

  	
  Environmental

  	
  16

  
	
  SECTION 4.8

  	
  Estoppel Certificates

  	
  17

  
	
   

  	
   

  	
   

  
	
  ARTICLE V

  
	
   

  	
   

  	
   

  
	
  LEASES

  
	
   

  	
   

  	
   

  
	
  SECTION 5.1

  	
  Mortgagor’s Affirmative
  Covenants with Respect to Leases

  	
  17

  
	
  SECTION 5.2

  	
  Mortgagor’s Negative
  Covenants with Respect to Leases

  	
  18

  
	
  SECTION 5.3

  	
  Additional Requirements
  with Respect to New Leases

  	
  18

  
	
   

  	
   

  	
   

  
	
  ARTICLE VI

  
	
   

  	
   

  	
   

  
	
  CONCERNING ASSIGNMENT
  OF LEASES AND RENTS

  
	
   

  	
   

  
	
  SECTION 6.1

  	
  Present Assignment;
  License to the Mortgagor

  	
  19

  
	
  SECTION 6.2

  	
  Collection of Rents by
  the Mortgagee

  	
  19

  
	
  SECTION 6.3

  	
  No Release

  	
  19

  
	
  SECTION 6.4

  	
  Irrevocable Interest

  	
  20

  
	
  SECTION 6.5

  	
  Amendment to Leases

  	
  20

  
	
   

  	
   

  	
   

  
	
  ARTICLE VII

  
	
   

  	
   

  	
   

  
	
  TAXES AND CERTAIN
  STATUTORY LIENS

  
	
   

  	
   

  
	
  SECTION 7.1

  	
  Payment of Charges

  	
  20

  
	
  SECTION 7.2

  	
  Escrow of Taxes

  	
  20

  
	
  SECTION 7.3

  	
  Certain Statutory Liens

  	
  20

  
	
  SECTION 7.4

  	
  Stamp and Other Taxes

  	
  20

  
	
  SECTION 7.5

  	
  Certain Tax Law Changes

  	
  21

  
	
  SECTION 7.6

  	
  Proceeds of Tax Claim

  	
  21

  
	
   

  	
   

  	
   

  
	
  ARTICLE VIII

  
	
   

  	
   

  	
   

  
	
  INSURANCE

  
	
   

  	
   

  
	
  SECTION 8.1

  	
  Required Insurance
  Policies and Coverages

  	
  21

  
	
  SECTION 8.2

  	
  Delivery After Foreclosure

  	
  21

  



 


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  ARTICLE IX

  
	
   

  	
   

  	
   

  
	
  CONTESTING OF PAYMENTS

  
	
   

  	
   

  
	
  SECTION 9.1

  	
  Contesting of Taxes and
  Certain Statutory Liens

  	
  21

  
	
  SECTION 9.2

  	
  Contesting of Insurance

  	
  21

  
	
   

  	
   

  	
   

  
	
  ARTICLE X

  
	
   

  	
   

  	
   

  
	
  DESTRUCTION,
  CONDEMNATION AND RESTORATION

  
	
   

  	
   

  
	
  SECTION 10.1

  	
  Destruction

  	
  22

  
	
  SECTION 10.2

  	
  Condemnation

  	
  22

  
	
   

  	
   

  	
   

  
	
  ARTICLE XI

  
	
   

  	
   

  	
   

  
	
  EVENTS OF DEFAULT AND
  REMEDIES

  
	
   

  	
   

  
	
  SECTION 11.1

  	
  Events of Default

  	
  22

  
	
  SECTION 11.2

  	
  Remedies in Case of an
  Event of Default

  	
  22

  
	
  SECTION 11.3

  	
  Sale of Mortgaged Property
  if Event of Default Occurs; Proceeds of Sale

  	
  23

  
	
  SECTION 11.4

  	
  Additional Remedies in
  Case of an Event of Default

  	
  24

  
	
  SECTION 11.5

  	
  Legal Proceedings After
  an Event of Default

  	
  25

  
	
  SECTION 11.6

  	
  Remedies Not Exclusive

  	
  25

  
	
  SECTION 11.7

  	
  Special Louisiana
  Provisions

  	
  26

  
	
   

  	
   

  	
   

  
	
  ARTICLE XII

  
	
   

  	
   

  	
   

  
	
  SECURITY AGREEMENT AND
  FIXTURE FILING

  
	
   

  	
   

  
	
  SECTION 12.1

  	
  Security Agreement

  	
  27

  
	
  SECTION 12.2

  	
  Fixture Filing

  	
  28

  
	
   

  	
   

  	
   

  
	
  ARTICLE XIII

  
	
   

  	
   

  	
   

  
	
  FURTHER ASSURANCES

  
	
   

  	
   

  
	
  SECTION 13.1

  	
  Recording Documentation
  To Assure Security

  	
  28

  
	
  SECTION 13.2

  	
  Further Acts

  	
  29

  
	
  SECTION 13.3

  	
  Additional Security

  	
  29

  



 


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  ARTICLE XIV

  
	
   

  	
   

  	
   

  
	
  MISCELLANEOUS

  
	
   

  	
   

  
	
  SECTION 14.1

  	
  Covenants To Run with
  the Land

  	
  29

  
	
  SECTION 14.2

  	
  No Merger

  	
  29

  
	
  SECTION 14.3

  	
  Concerning Mortgagee

  	
  30

  
	
  SECTION 14.4

  	
  Mortgagee May Perform;
  Mortgagee Appointed Attorney-in-Fact

  	
  30

  
	
  SECTION 14.5

  	
  Expenses

  	
  31

  
	
  SECTION 14.6

  	
  Indemnity

  	
  31

  
	
  SECTION 14.7

  	
  Continuing Security
  Interest; Assignment

  	
  32

  
	
  SECTION 14.8

  	
  Termination; Release

  	
  32

  
	
  SECTION 14.9

  	
  Modification in Writing

  	
  32

  
	
  SECTION 14.10

  	
  Notices

  	
  32

  
	
  SECTION 14.11

  	
  GOVERNING LAW; SERVICE
  OF PROCESS; WAIVER OF JURY TRIAL

  	
  32

  
	
  SECTION 14.12

  	
  Severability of
  Provisions

  	
  33

  
	
  SECTION 14.13

  	
  Limitation on Interest
  Payable

  	
  33

  
	
  SECTION 14.14

  	
  Business Days

  	
  33

  
	
  SECTION 14.15

  	
  Relationship

  	
  33

  
	
  SECTION 14.16

  	
  Waiver of Stay

  	
  33

  
	
  SECTION 14.17

  	
  No Credit for Payment
  of Taxes or Impositions

  	
  34

  
	
  SECTION 14.18

  	
  No Claims Against the
  Mortgagee

  	
  34

  
	
  SECTION 14.19

  	
  Obligations Absolute

  	
  34

  
	
  SECTION 14.20

  	
  Last Dollars Secured

  	
  35

  
	
   

  	
   

  	
   

  
	
  SIGNATURE AND
  ACKNOWLEDGMENT

  	
   

  
	
   

  	
   

  
	
  SCHEDULE A

  	
  Legal
  Description

  	
   

  
	
  SCHEDULE B

  	
  Prior Liens

  	
   

  
	
  SCHEDULE C

  	
  Leases Affecting
  the Mortgaged Property

  	
   

  
	
   

  	
   

  	
   

  
	
  EXHIBIT 1

  	
  Form of
  Subordination, Non-Disturbance 

  and Attornment Agreement

  	
   

  



 


iv

















 


MORTGAGE, ASSIGNMENT OF LEASES AND RENTS, SECURITY

AGREEMENT AND FIXTURE FILING


 


MORTGAGE,
ASSIGNMENT OF LEASES AND RENTS, SECURITY AGREEMENT AND FIXTURE FILING (as
amended, amended and restated, supplemented or otherwise modified from time to
time, the “Mortgage”), dated as of February 28, 2006 (“Effective
Date”), made by JALOU OF LAROSE, LLC, a Louisiana limited liability
company, having an office at 11825 Highway 308, Lockport, Louisiana 70374, as
mortgagor, assignor and debtor (in such capacities and together with any
successors in such capacities, the “Mortgagor”), in favor of WELLS FARGO
BANK, NATIONAL ASSOCIATION, a national banking association having an office
at  213 Court Street, Suite 703,
Middletown, CT 06457, in its capacity as trustee pursuant to the Indenture (as
hereinafter defined), as mortgagee, assignee and secured party (in such capacities
and together with any successors in such capacities, the “Mortgagee”).


 


R E C I T A L S :


 


A. Gameco, Inc. n/k/a Jacobs Entertainment, Inc.
(the “Issuer”), certain of its Subsidiaries (as hereinafter defined),
the Mortgagor and the Mortgagee have, in connection with the execution and
delivery of this Mortgage, entered into that certain Indenture, dated as of February 8,
2002, as supplemented by the First Supplemental Indenture, dated as of February 22,
2002, the Second Supplemental Indenture, dated as of June 14, 2002, the
Third Supplemental Indenture, dated as of June 4, 2003, the Fourth
Supplemental Indenture, dated as of March 2, 2005, the Fifth Supplemental
Indenture, dated as of March 2, 2005 hereof the Sixth Supplemental
Indenture, dated as of December 21, 2005, and the Seventh Supplemental
Indenture, dated as of even date herewith (collectively, as amended, amended
and restated, supplemented, or otherwise modified from time to time, the “Indenture”),
pursuant to which the Issuer has issued, from time to time, its 117/8%
Senior Secured Notes due 2009 (the “Senior Secured Notes”) in the
aggregate principal amount of $148,000,000. It is contemplated that the Issuer
may, after the date hereof, issue Additional Notes (as defined in the
Indenture) and Exchange Notes (as defined in the Indenture); the Exchange
Notes, together with the Additional Notes and the Senior Secured Notes, the “Notes”),
in each case, pursuant to the provisions of the Indenture.


 


B. The Issuer owns, directly or through its
Subsidiaries, all of the issued and outstanding shares of the Mortgagor.


 


C. The Mortgagor has, pursuant to the Indenture, among
other things, unconditionally guaranteed (the “Guarantee”) the
obligations of the Issuer under the Indenture and the Notes.


 


D. The Mortgagor will receive substantial benefits
from the execution and delivery of, and the performance of the obligations
under, the Indenture and the Notes, and is therefore willing to enter into this
Mortgage.


 


E. The Mortgagor is or will be the legal owner of the
Mortgaged Property (as hereinafter defined).


 


F. This Mortgage is given by the Mortgagor in favor of
the Mortgagee for its benefit and for the benefit of the Holders of the Notes
(collectively, the “Secured Parties”) to secure the payment and performance
of all of the Secured Obligations (as hereinafter defined).


 


1

















 


A  G  R  E  E
M  E  N  T:


 


NOW THEREFORE, in consideration of the foregoing
premises and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the Mortgagor hereby covenants and agrees
with the Mortgagee as follows:


 


ARTICLE I


 


DEFINITIONS
AND INTERPRETATION


 


SECTION 1.1  Definitions.
Capitalized terms used but not otherwise defined herein shall have the meanings
assigned to such terms in the Indenture. The following terms used in this
Mortgage shall have the following meanings:


 


“ACM” shall have the meaning assigned to such term in Section 4.7(ii) hereof.


 


“Affiliate” shall have the meaning assigned to such term in the
Indenture.


 


“Alteration” shall mean any and all alterations, installations,
improvements, additions, modifications or changes of a structural nature of or
to the Premises.


 


“Business Day” shall have the meaning assigned to such term in
the Indenture.


 


“Charges” shall mean any and all real estate, property and other
taxes, assessments and special assessments, levies, fees, all water and sewer
rents and charges and all other governmental charges or Liens imposed upon or
assessed against, and all claims (including, without limitation, landlords’,
carriers’, mechanics’, workmen’s, repairmen’s, laborers’, materialmen’s,
suppliers’ and warehousemen’s Liens and other claims arising by operation of
law) against, all or any portion of the Mortgaged Property.


 


“Collateral Account” shall have the meaning assigned to such
term in the Indenture.


 


“Collateral Documents” shall have the meaning assigned to such
term in the Indenture.


 


“Contested Liens” shall mean, collectively, any Liens incurred
in respect of any Charges to the extent that the amounts owing in respect
thereof are not yet delinquent or are being contested and otherwise comply with
the provisions of Section 9.1 hereof.


 


“Contracts” shall mean, collectively, any and all right, title
and interest of the Mortgagor in and to any and all contracts, instruments,
documents and other general intangibles, whether now existing or hereafter
arising or entered into, relating to the Mortgaged Property (including, without
limitation, all reciprocal easements and/or operating agreements, covenants,
conditions and restrictions and similar agreements affecting all or any portion
of the Mortgaged Property and any and all present or future options to sell or
lease the Mortgaged Property or any interest therein) and all reserves,
deferred payments, deposits or other security or advance payments (including,
without limitation, those made by or on behalf of the Mortgagor to others with
respect to (i) utility service regarding the Mortgaged Property, (ii) cleaning,
maintenance, repair or similar services regarding the Mortgaged Property, (iii) refuse
removal or sewage service regarding the Mortgaged Property, (iv) rentals
of equipment, if any, used in the operation by or on behalf of Mortgagor
regarding the Mortgaged Property, and/or (v) parking or similar services
or rights regarding the Mortgaged Property), refunds,


 


2

















 


liens, security interests, guarantees, remedies and
claims of every kind, nature or character relating thereto.


 


“Default Rate” shall mean the rate per annum equal to the
highest rate then payable under the Indenture.


 


“Destruction” shall mean any and all damage to, or loss or
destruction of, the Premises or any part thereof.


 


“Environmental Law” shall mean any applicable federal, state,
local or municipal statute, law, rule, regulation, ordinance, code, policy or rule of
common law and any judicial or administrative interpretation thereof, including
any judicial or administrative order, consent decree or judgment binding on the
Mortgagor, relating to pollution or protection of the environment, or health or
safety including, without limitation, any relating to the release or threatened
release of any Hazardous Materials.


 


“Event of Default” shall have the meaning assigned to such term
in the Indenture.


 


“Fixture” shall mean all machinery, apparatus, equipment,
fittings, fixtures, improvements and articles of personal property of every
kind, description and nature whatsoever now or hereafter attached or affixed to
the Land or any other Improvement or used in connection with the use and
enjoyment of the Land or any other Improvement or the maintenance or preservation
thereof, which by the nature of their location thereon or attachment thereto
are fixtures under the UCC or any other applicable law including, without
limitation, all utility systems, fire sprinkler and security systems, drainage
facilities, lighting facilities, all water, sanitary and storm sewer, drainage,
electricity, steam, gas, telephone and other utility equipment and facilities,
pipes, fittings and other items of every kind and description now or hereafter
attached to or located on the Land which by the nature of their location
thereon or attachment thereto are real property under applicable law, HVAC
equipment, boilers, electronic data processing, telecommunications or computer
equipment, refrigeration, electronic monitoring, water or lighting systems,
power, sanitation, waste removal, elevators, maintenance or other systems or
equipment and all additions thereto and betterments, renewals, substitutions
and replacements thereof.


 


“Governmental Authority” shall mean any
federal, state, local, foreign or other governmental, quasi-governmental or
administrative (including self-regulatory) body, instrumentality, department,
agency, authority, board, bureau, commission, office of any nature whatsoever
or other subdivision thereof, or any court, tribunal, administrative hearing
body, arbitration panel or other similar dispute-resolving body, whether now or
hereafter in existence, or any officer or official thereof, having jurisdiction
over the Mortgagor or the Mortgaged Property or any portion thereof.


 


“Guarantee” shall have the meaning assigned to
such term in Recital C hereof.


 


“Guarantors” shall have the meaning assigned to
such term in the Indenture.


 


“Hazardous Materials” shall mean any substance,
chemical, material, pollutant, waste, contaminant or constituent, which is
subject to regulation under or could give rise to liability under any Environmental
Law.


 


“Holder” shall have the meaning assigned to
such term in the Indenture.


 


“Improvements” shall mean all buildings,
structures and other improvements of every kind or description and any and all
Alterations now or hereafter located, attached or erected on the Land including,


 


3

















 


without limitation, (i) all Fixtures, (ii) all
attachments, railroad tracks, foundations, sidewalks, drives, roads, curbs,
streets, ways, alleys, passages, passageways, sewer rights, parking areas,
driveways, fences and walls and (iii) all materials now or hereafter
located on the Land intended for the construction, reconstruction, repair,
replacement, alteration, addition or improvement of or to such buildings,
Fixtures, structures and improvements, all of which materials shall be deemed
to be part of the Improvements immediately upon delivery thereof on the
Land and to be part of the Improvements immediately upon their incorporation
therein.


 


“Indemnified Liabilities” shall have the
meaning assigned to such term in Section 14.6(i) hereof.


 


“Indemnitees” shall have the meaning assigned
to such term in Section 14.6(i) hereof.


 


“Indenture” shall have the meaning assigned to
such term in Recital A hereof.


 


“Insurance Policies” means the insurance
policies and coverages required to be maintained by the Mortgagor with respect
to the Mortgaged Property pursuant to Section 4.19(b) of the
Indenture and all renewals and extensions thereof.


 


“Insurance Requirements” means, collectively,
all provisions of the Insurance Policies, all requirements of the issuer of any
of the Insurance Policies and all orders, rules, regulations and any other
requirements of the National Board of Fire Underwriters (or any other body
exercising similar functions) binding upon the Mortgagor and applicable to the
Mortgaged Property or any use or condition thereof.


 


“Issuer” shall have the meaning assigned to such
term in Recital A hereof.


 


“Land” shall mean those certain tracts or
parcels of land described in Schedule A annexed to this Mortgage,
together with all of the Mortgagor’s reversionary rights therein and all of the
Mortgagor’s rights in and to any and all easements, rights-of-way, strips and
gores of land, drives, roads, curbs, streets, ways, alleys, passages, passage
ways, sewer rights, waters, water courses, water rights, mineral, gas and oil
rights, and all power, air, light and other rights, estates, titles, interests,
privileges, liberties, servitudes, licenses, tenements, hereditaments and
appurtenances whatsoever, in any way belonging, relating or appertaining
thereto, or any part thereof, or which hereafter shall in any way belong,
relate or be appurtenant thereto.


 


“Landlord” shall mean any landlord, lessor,
franchisor, licensor or grantor, as applicable.


 


“Leases” shall mean, collectively, any and all
right, title and interests of the Mortgagor, as Landlord, in all leases and
subleases of space, tenancies, franchise agreements, licenses, occupancy,
rental, access or concession agreements and any other agreements pursuant to
which any Person is granted a possessory interest in or right to use or occupy
all or any portion of the Mortgaged Property (including, without limitation,
all of the Mortgagor’s rights to enforce all such leases, subleases, tenancies
or other agreements and to receive and enforce any rights that the Mortgagor may have
to collect Rents thereunder), in each case whether now existing or hereafter
entered into, whether or not of record, relating in any manner to the Premises
or the use or occupancy thereof and any and all amendments, modifications,
supplements, replacements, extensions, renewals and/or guarantees, if any
thereof, whether now in effect or hereafter coming into effect.


 


“Lien” shall have the meaning assigned to such
term in the Indenture.


 


“Mortgage” shall have the meaning assigned to
such term in the Preamble hereof.


 


“Mortgaged Property” shall have the meaning
assigned to such term in Section 2.1 hereof.


 


4

















 


“Mortgagee” shall have the meaning assigned to
such term in the Preamble hereof.


 


“Mortgagor” shall have the meaning assigned to
such term in the Preamble hereof.


 


“Mortgagor’s Interest” shall have the meaning
assigned to such term in Section 2.2 hereof.


 


“Net Loss Proceeds” shall have the meaning
assigned to such term in the Indenture.


 


“Notes” shall have the meaning assigned to such
term in Recital A hereof.


 


“Officers’ Certificate” shall have the meaning
assigned to such term in the Indenture.


 


“Permit” shall mean any and all permits,
certificates, approvals, authorizations, consents, licenses, variances,
franchises or other instruments, however characterized, of any Governmental
Authority (or any Person acting on behalf of a Governmental Authority) now or
hereafter acquired or held, together with all amendments, modifications,
extensions, renewals and replacements of any thereof issued or in any way
furnished in connection with the Mortgaged Property including, without
limitation, building permits, certificates of occupancy, environmental
certificates, industrial permits or licenses and certificates of operation.


 


“Permitted Collateral Liens” shall have the
meaning assigned to such term in Section 4.6 hereof.


 


“Permitted Liens” shall have the meaning
assigned to such term in the Indenture.


 


“Person” shall have the meaning assigned to
such term in the Indenture.


 


“Premises” shall mean, collectively, the Land
and the Improvements.


 


“Prior Liens” shall mean, collectively, the
Liens identified in Schedule B annexed to this Mortgage.


 


“Proceeds” shall mean, collectively, any and
all cash proceeds and noncash proceeds derived or to be derived from the
Mortgaged Property and shall include, without limitation, all (i) proceeds
of the sale, transfer or conveyance of the Mortgaged Property or the
conversion, voluntary or involuntary, of any of the Mortgaged Property or any
portion thereof into cash or liquidated claims, (ii) proceeds of any
insurance (except payments made to a Person, other than the Issuer or any
Subsidiary thereof, that is not a party to this Mortgage), indemnity, warranty,
guaranty or claim payable to the Mortgagee or to the Mortgagor from time to
time with respect to any of the Mortgaged Property including, without
limitation, all Net Loss Proceeds relating thereto, (iii) payments (in any
form whatsoever) made or due and payable to the Mortgagor from time to
time in connection with any requisition, confiscation, condemnation, seizure or
forfeiture of all or any portion of the Mortgaged Property by any Governmental
Authority (or any Person acting on behalf of a Governmental Authority)
including, without limitation, all Net Loss Awards relating thereto, (iv) products
of the Mortgaged Property, (v) other amounts from time to time paid or
payable under or in connection with any of the Mortgaged Property including,
without limitation, refunds of real estate taxes and assessments, including
interest thereon and any unearned insurance premiums relating thereto and (vi) the
right to enforce any and all rights that the Mortgagor has or may have to
collect all such proceeds, including, without limitation, the Mortgagor’s
rights to commence any and all appropriate collection or enforcement actions
incident thereto.


 


“Property Material Adverse Effect” shall mean,
as of any date of determination and whether individually or in the aggregate (a) any
event, circumstance, occurrence or condition which has caused or resulted


 


5

















 


in (or would reasonably be expected to cause or result
in) a material adverse effect on the business or operations as presently
conducted at the Mortgaged Property; (b) any event, circumstance,
occurrence or condition which has caused or resulted in (or would reasonably be
expected to cause or result in) a material adverse effect on the value or
utility of the Mortgaged Property; and (c) any event, circumstance,
occurrence or condition which has caused or resulted in (or would reasonably be
expected to cause or result in) a material adverse effect on the legality,
priority or enforceability of the Lien created by this Mortgage or the rights
and remedies of the Mortgagee hereunder.


 


“Prudent Operator” shall mean the standard of
care taken by a prudent operator of property similar in use and configuration
to the Premises and located in the locality where the Premises are located.


 


“Records” shall mean, collectively, any and all
right, title and interest of the Mortgagor in and to any and all drawings,
plans, specifications, file materials, operating and maintenance records,
catalogues, tenant lists, correspondence, advertising materials, operating
manuals, warranties, guarantees, appraisals, studies and data relating to the
Mortgaged Property or the construction of any Alteration or the maintenance of
any Permit.


 


“Rents” shall mean, collectively, any and all
rents, additional rents, royalties, issues, cash, guaranties, letters of
credit, bonds, sureties or security deposited under any Lease to secure
performance of the Tenant’s obligations thereunder, revenues, earnings,
profits, bonuses and income, advance rental payments, payments incident to
assignment, sublease or surrender of a Lease, claims for forfeited deposits and
claims for damages, now due or hereafter to become due, with respect to any
Lease, any indemnification against, or reimbursement for, sums paid and costs
and expenses incurred by the Mortgagor under any Lease or otherwise, and any
award in the event of the bankruptcy of any Tenant under or guarantor of a
Lease.


 


“Requirements of Law” shall mean, collectively,
any and all requirements of any Governmental Authority including, without
limitation, any and all orders, decrees, determinations, laws, treaties, ordinances,
rules, regulations or similar statutes or case law.


 


“Secured Obligations” shall mean all
obligations (whether or not constituting future advances, obligatory or
otherwise) of the Issuer and any and all of the Guarantors from time to time arising
under or in respect of this Mortgage, the Indenture, the Notes and the other
Collateral Documents (including, without limitation, the obligations to pay
principal, interest and all other charges, fees, expenses, commissions,
reimbursements, premiums, indemnities and other payments related to or in
respect of the obligations contained in this Mortgage, the Indenture, the Notes
and the other Collateral Documents), in each case whether (i) such obligations
are direct or indirect, secured or unsecured, joint or several, absolute or
contingent, due or to become due whether at stated maturity, by acceleration or
otherwise, (ii) arising in the regular course of business or otherwise, (iii) for
payment or performance and/or (iv) now existing or hereafter arising
(including, without limitation, interest and other obligations arising or
accruing after the commencement of any bankruptcy, insolvency, reorganization
or similar proceeding with respect to the Issuer, any Guarantor or any other
Person, or which would have arisen or accrued but for the commencement of such
proceeding, even if such obligation or the claim therefor is not enforceable or
allowable in such proceeding).


 


“Secured Parties” shall have the meaning
assigned to such term in Recital F hereof.


 


“Senior Secured Notes” shall have the meaning
assigned to such term in Recital A hereof.


 


“Subordination Agreement” shall mean a
subordination, nondisturbance and attornment agreement substantially in the form of
Exhibit 1 annexed to this Mortgage.


 


6

















 


“Subsidiaries” shall have the meaning assigned
to such term in the Indenture.


 


“Taking” shall mean any taking of the Mortgaged
Property or any part thereof, in or by condemnation or other eminent
domain proceedings pursuant to any law, general or special, or by reason of the
temporary requisition of the use or occupancy of the Mortgaged Property or any part thereof,
by any Governmental Authority, civil or military.


 


“Tax Escrow Fund” shall have the meaning
assigned to such term in Section 7.2 hereof.


 


“Tenant” shall mean any tenant, subtenant,
lessee, sublessee, franchisee, licensee, grantee or obligee, as applicable.


 


“UCC” shall mean the Uniform Commercial
Code as in effect on the date hereof in the jurisdiction in which the Premises
are located; provided, however, that if by reason of mandatory
provisions of law, the perfection or the effect of perfection or non-perfection
of the security interest in any item or portion of the Mortgaged Property is
governed by the Uniform Commercial Code as in effect in a jurisdiction
other than the jurisdiction in which the Premises are located, “UCC” shall mean
the Uniform Commercial Code as in effect in such other jurisdiction for
purposes of the provisions hereof relating to such perfection or effect of perfection
or non-perfection.


 


SECTION 1.2  Interpretation.
In this Mortgage, unless otherwise specified, (i) singular words include
the plural and plural words include the singular, (ii) words importing any
gender include the other gender, (iii) references to any Person include
such Person’s successors and assigns and in the case of an individual, the word
“successors” includes such Person’s heirs, devisees, legatees, executors,
administrators and personal representatives, (iv) references to any
statute or other law include all applicable rules, regulations and orders
adopted or made thereunder and all statutes or other laws amending,
consolidating or replacing the statute or law referred to, (v) the words “consent,”
“approve” and “agree,” and derivations thereof or words of similar import, mean
the prior written consent, approval or agreement of the Person in question not
to be unreasonably withheld, (vi) the words “include” and “including,” and
words of similar import, shall be deemed to be followed by the words “without
limitation,” (vii) the words “hereto,” “herein,” “hereof” and “hereunder,”
and words of similar import, refer to this Mortgage in its entirety, (viii) references
to Articles, Sections, Schedules, Exhibits, subsections, paragraphs and clauses
are to the Articles, Sections, Schedules, Exhibits, subsections, paragraphs and
clauses hereof, (ix) the Schedules and Exhibits to this Mortgage, in each
case as amended, amended and restated, supplemented or otherwise modified from
time to time in accordance with the provisions hereof, are incorporated herein
by reference, (x) the titles and headings of Articles, Sections, Schedules,
Exhibits, subsections, paragraphs and clauses are inserted as a matter of
convenience only and shall not affect the constructions of any provisions
hereof and (xi) all obligations of the Mortgagor hereunder shall be satisfied
by the Mortgagor at the Mortgagor’s sole cost and expense.


 


SECTION 1.3  Resolution
of Drafting Ambiguities. The Mortgagor acknowledges and agrees that it was
represented by counsel in connection with the execution and delivery hereof,
that it and its counsel reviewed and participated in the preparation and
negotiation hereof and that any rule of construction to the effect that ambiguities
are to be resolved against the drafting party (i.e., Mortgagee) shall
not be employed in the interpretation hereof.


 


7

















 


ARTICLE II


 


GRANTS
AND SECURED OBLIGATIONS


 


SECTION 2.1  Grant
of Mortgaged Property. The Mortgagor hereby grants, mortgages, bargains,
sells, assigns and conveys to the Mortgagee (for its benefit and for the
benefit of the other Secured Parties), and hereby grants to the Mortgagee (for
its benefit and for the benefit of the other Secured Parties), a security
interest in and upon all of the Mortgagor’s estate, right, title and interest
in, to and under the following property, whether now owned or held or hereafter
acquired from time to time (collectively, the “Mortgaged Property”):


 


(i)                           Land;


 


(ii)                        Improvements;


 


(iii)                     Leases;


 


(iv)                    Rents;


 


(v)                       Permits;


 


(vi)                    Contracts;


 


(vii)                 Records; and


 


(viii)              Proceeds.


 


Notwithstanding the foregoing provisions of this Section 2.1,
Mortgaged Property shall not include a grant of any of the Mortgagor’s right,
title or interest in (i) any Contract to which the Mortgagor is a party or
any of its rights or interests thereunder (other than (x) the right to receive
any payment of money (including without limitation accounts, general
intangibles and payment intangibles (each as defined in the UCC) or any other
rights referred to in Sections 9-406(f), 9-407(a) or 9-408(a) of the
UCC and (y) any proceeds, substitutions or replacements thereof) to the extent,
but only to the extent, that such a grant would, under the terms of such
Contract, result in a breach or termination of the terms of, or constitute a
default under or termination of such Contract and (ii) any Permit to the
extent, but only to the extent that, such grant shall constitute or result in
abandonment, invalidation or rendering unenforceable any right, title or
interest of the Mortgagor therein; provided, however, that at
such time as any Contract or Permit described in clauses (i) and (ii) of
this sentence is no longer subject to such restriction, such applicable
Contract or Permit shall (without any act or delivery by any Person) constitute
Mortgaged Property hereunder.


 


TO HAVE AND TO HOLD the Mortgaged Property, together
with all estate, right, title and interest of the Mortgagor and anyone claiming
by, through or under the Mortgagor in and to the Mortgaged Property and all
rights and appurtenances relating thereto, unto the Mortgagee, its successors
and assigns, for the purpose of securing the payment and performance in full of
all the Secured Obligations.


 


SECTION 2.2  Collateral
Assignment and Pledge of Mortgagor’s Interest as Additional Security. As
additional collateral security for the prompt and punctual payment and
satisfaction of the Secured Obligations, and all additional advances that the
Mortgagee may make on the Mortgagor’s behalf pursuant to this Mortgage,
together with interest thereon as provided herein, the Mortgagor hereby
assigns, pledges and grants to the Mortgagee (for its benefit and for the
benefit of the other Secured Parties), a continuing security interest in and to
all of the


 


8

















 


Mortgagor’s estate, right, title, interest, claim and
demand, as Landlord, under any and all of the Leases including, without
limitation, the following (such assigned rights, the “Mortgagor’s Interest”):


 


(i)                                     the
immediate and continuing right to receive and collect Rents payable by the
Tenants pursuant to the Leases;


 


(ii)                                  all
claims, rights, powers, privileges and remedies of the Mortgagor, whether
provided for in the Leases or arising by statute or at law or in equity or
otherwise, consequent on any failure on the part of the Tenants to perform or
comply with any term of the Leases including damages or other amounts payable
to the Mortgagor as a result of such failure;


 


(iii)                               all
rights to take all actions upon the happening of a default under the Leases as
shall be permitted by the Leases or by law including, without limitation, the
commencement, conduct and consummation of proceeding at law or in equity; and


 


(iv)                              the
full power and authority, in the name of the Mortgagor or otherwise, to
enforce, collect, receive and receipt for any and all of the foregoing and to
take all other actions whatsoever which the Mortgagor, as Landlord, is or may be
entitled to take under the Leases.


 


SECTION 2.3  Secured
Obligations. This Mortgage secures, and the Mortgaged Property is
collateral security for, the payment and performance in full when due of the
Secured Obligations.


 


SECTION 2.4  Mortgage
Securing Future Indebtedness. This Mortgage has been executed by Mortgagor
pursuant to Article 3298 of the Louisiana Civil Code for the purpose of
securing the Mortgagor’s indebtedness (including, without limitation, the
Secured Obligations) that may now be existing or that may arise in
the future as provided herein and in the Indenture, with the preferences and
priorities provided under applicable Louisiana law. This Mortgage shall be
further entitled to the preferences and priorities as provided under the
Louisiana Private Works Act (La. R.S. 9:4801, et seq.). However, nothing under
this Mortgage shall be construed as limiting the duration of this Mortgage or
the purpose or purposes for which the Mortgagor’s indebtedness (including,
without limitation, the Secured Obligations) may be requested or extended.
The Mortgagor’s additional indebtedness will automatically be secured by this
Mortgage without the necessity that the Mortgagor agrees or consents to such a
result at the time additional indebtedness is made and that the note or notes
evidencing such additional indebtedness reference the fact that such notes are
secured by this Mortgage. The Mortgagor understands that the Mortgagor may not
subsequently have a change of mind and insist that the Mortgagor’s additional
indebtedness not be secured by this Mortgage unless the Mortgagee specifically
agrees to such a request in writing.


 


SECTION 2.5  No
Release. Nothing set forth in this Mortgage shall relieve the Mortgagor
from the performance of any term, covenant, condition or agreement on the
Mortgagor’s part to be performed or observed under or in respect of any of
the Mortgaged Property or from any liability to any Person under or in respect
of any of the Mortgaged Property or shall impose any obligation on the
Mortgagee or any other Secured Party to perform or observe any such term,
covenant, condition or agreement on the Mortgagor’s part to be so
performed or observed or shall impose any liability on the Mortgagee or any
other Secured Party for any act or omission on the part of the Mortgagor
relating thereto or for any breach of any representation or warranty on the part of
the Mortgagor contained in this Mortgage, the Indenture, the Notes or the
Collateral Documents, or under or in respect of the Mortgaged Property or made
in connection herewith or therewith. The obligations of the Mortgagor contained
in this Section 2.5 shall survive the termination hereof and the
discharge of the Mortgagor’s other obligations under this Mortgage and the
Indenture, the Notes and the Collateral Documents.


 


9

















 


ARTICLE III


 


REPRESENTATIONS
AND WARRANTIES OF MORTGAGOR


 


SECTION 3.1  Authority
and Validity.


 


The Mortgagor represents and warrants that as of the
date hereof:


 


(i)                                     it
is duly organized or formed, validly existing and, if applicable, in good
standing under the laws of the jurisdiction of its organization;


 


(ii)                                  it
is duly qualified to transact business and is in good standing in the state in
which the Mortgaged Property is located;


 


(iii)                               it
has full corporate or other organizational power and lawful authority to
execute and deliver this Mortgage and to mortgage and grant a Lien on and
security interest in the Mortgaged Property and otherwise assign the Mortgagor’s
Interest and otherwise perform its obligations as contemplated herein, and
all corporate and governmental actions, consents, authorizations and approvals
necessary or required therefor have been duly and effectively taken or
obtained; and


 


(iv)                              this
Mortgage is a legal, valid and binding obligation of the Mortgagor, enforceable
against the Mortgagor in accordance with its terms, except as enforceability may be
limited by applicable bankruptcy, insolvency or similar laws affecting the
enforcement of creditors’ rights generally or by equitable principles relating
to enforceability.


 


SECTION 3.2  Warranty
of Title. The Mortgagor represents and warrants that:


 


(i)                                     it
has good fee simple title to the Premises and the Landlord’s interest and
estate under or in respect of the Leases and good title to the interest it
purports to own or hold in and to each of the Permits, the Contracts and the
Records, in each case subject to no Liens, except for Permitted Collateral
Liens;


 


(ii)                                  it
has good title to the interest it purports to own or hold in and to all rights
and appurtenances to or that constitute a portion of the Mortgaged Property,
except for Permitted Collateral Liens;


 


(iii)                               it
is in compliance with each term, condition and provision of any obligation of
the Mortgagor which is secured by the Mortgaged Property or the noncompliance
with which would result in a Property Material Adverse Effect; and


 


(iv)                              this
Mortgage creates and constitutes a valid and enforceable first priority Lien on
the Mortgaged Property subject to Permitted Collateral Liens, and, to the
extent any of the Mortgaged Property shall consist of Fixtures, a first
priority security interest in the Fixtures, which first priority Lien and first
priority security interest are subject only to Permitted Collateral Liens.


 


SECTION 3.3  Condition
of Mortgaged Property. The Mortgagor represents and warrants that:


 


(i)                                     there
has been issued or timely applied for and there remains in full force and
effect subject to no revocation, suspension, forfeiture or modification, each
and every Permit necessary for the present use, operation and occupancy of the
Premises by the Mortgagor and its Tenants and the conduct


 


10

















 


of their respective businesses and all required
zoning, building code, land use, environmental and other similar Permits,
except where the failure to be so issued and to be in full force and effect
would not result in a Property Material Adverse Effect;


 


(ii)                                  the
Premises and the present and contemplated use and occupancy thereof comply with
all applicable zoning ordinances, building codes, land use laws, setback or
other development and/or use requirements of Governmental Authorities except
where such noncompliance would not result in a Property Material Adverse
Effect;


 


(iii)                               the
Premises are served by all utilities (including, without limitation, water and
sewer systems) necessary for the present use thereof, and all utility services
are provided by public or private utilities and the Premises have accepted or
are equipped to accept such utility services and the Mortgagor has not received
notice of termination of such utility service, except where the failure to be
so served would not result in a Property Material Adverse Effect;


 


(iv)                              the
Mortgagor has access to the Premises from roads sufficient to allow the
Mortgagor and its Tenants and invitees to conduct their respective businesses
at the Premises in accordance with sound commercial practices and the Mortgagor
has not received notice of termination of such access, except where the failure
to have such access would not result in a Property Material Adverse Effect;


 


(v)                                 the
Mortgagor has not received notice of any Taking or the commencement or pendency
of any action or proceeding therefor, other than such Takings as would not result
in a Property Material Adverse Effect;


 


(vi)                              there
has not occurred any Destruction of the Premises or any portion thereof as a
result of any fire or other casualty that, as of the date hereof, has not been
repaired in all material respects, other than such Destruction as would not
have a Property Material Adverse Effect;


 


(vii)                           there
are no disputes regarding boundary lines, location, encroachments or possession
of any portions of the Mortgaged Property and no state of facts exists which
could give rise to any such claim other than such disputes as would not result
in a Property Material Adverse Effect;


 


(viii)                        all liquid
and solid waste disposal, septic and sewer systems located on the Premises are
in a good and safe condition and repair and in compliance with all Requirements
of Law, except where the failure to so comply would not result in a Property
Material Adverse Effect;


 


(ix)                                no
portion of the Premises is located in an area identified by the Federal
Emergency Management Agency or any successor thereto as an area having special
flood hazards pursuant to the Flood Insurance Acts or, if any portion of the
Premises is located within such area, the Mortgagor has obtained the insurance
prescribed in Article VIII hereof;


 


(x)                                   the
Premises are assessed for real estate tax purposes as one or more wholly
independent tax lot or lots, separate from any adjoining land or improvements
not constituting a portion of such lot or lots, and no other land or
improvements are assessed and taxed together with the Premises or any portion
thereof, other than such cases where the failure to be so assessed would not
result in a Property Material Adverse Effect; and


 


(xi)                                there
are no options or rights of first refusal to purchase or acquire all or any
portion of the Mortgaged Property, other than such options or rights of first
refusal as would not result in a Property Material Adverse Effect.


 


11

















 


SECTION 3.4  Leases.
The Mortgagor represents and warrants that as of the date hereof:


 


(i)                                     the
Leases identified in Schedule C attached hereto are the only Leases in
existence on the date hereof relating to the Premises;


 


(ii)                                  true
copies of such Leases have been previously delivered to the Mortgagee and there
are no agreements with any Tenant under such Leases other than those agreements
expressly set forth therein;


 


(iii)                               the
Mortgagor is the sole owner of all of the Mortgagor’s Interest in such Leases;


 


(iv)                              each
of such Leases is in full force and effect, constitutes a legal, valid and
binding obligation of the Mortgagor and the applicable Tenant thereunder, and
is enforceable against the Mortgagor and such Tenant in accordance with its
terms, except as enforceability may be limited by applicable bankruptcy,
insolvency or similar laws affecting the enforcement of creditors’ rights
generally or by equitable principles relating to enforceability;


 


(v)                                 there
is no default under any of such Leases and there is existing no condition which
with the giving of notice or passage of time or both would cause a default
thereunder;


 


(vi)                              all
Rents due under such Leases have been paid in full;


 


(vii)                           none of
the Rents reserved under such Leases have been assigned or otherwise pledged or
hypothecated except in favor of the Mortgagee pursuant to the provisions
hereof;


 


(viii)                        none of
the Rents (other than any security deposit collected in accordance with the
provisions of the applicable Lease) have been collected for more than one (1) month
in advance;


 


(ix)                                there
exist no offsets or defenses to the payment of any portion of the Rents and the
Mortgagor owes no monetary obligation to any Tenant under any such Lease;


 


(x)                                   the
Mortgagor has received no notice from any Tenant challenging the validity or
enforceability of any such Lease;


 


(xi)                                no
such Lease contains any option to purchase, right of first refusal to purchase,
right of first refusal to relet, or any other similar provision; and


 


(xii)                             each
such Lease is subordinate to this Mortgage either pursuant to its terms or
pursuant to a recordable Subordination Agreement.


 


SECTION 3.5  Insurance.
The Mortgagor represents and warrants that, except where the failure of clauses
(i), (ii) or (iii) hereof to be true would not have a Property
Material Adverse Effect, (i) the Premises and the use, occupancy and
operation thereof comply with all Insurance Requirements and there exists no
default under any Insurance Requirement, (ii) all premiums due and payable
with respect to the Insurance Policies have been paid, (iii) all Insurance
Policies are in full force and effect and the Mortgagor has not received notice
of violation or cancellation thereof and (iv) all insurance certificates
required pursuant to the Indenture have been delivered to the Mortgagee.


 


SECTION 3.6  Charges.
The Mortgagor represents and warrants that all Charges imposed upon or assessed
against the Mortgaged Property have been paid and discharged except to the
extent such


 


12

















 


Charges constitute a Lien not yet due and payable or
to the extent such Charges are being contested in accordance with Section 9.1
hereof.


 


SECTION 3.7  Environmental.
The Mortgagor represents and warrants that:


 


(i)                                     it
has obtained all Permits which are necessary with respect to the ownership and
operation of its business and the Mortgaged Property under any and all
applicable Environmental Laws and is in compliance with all terms and
conditions thereof, except where the failure so to obtain or to be in
compliance would not result in a Property Material Adverse Effect;


 


(ii)                                  it
is in compliance with any and all applicable Environmental Laws including,
without limitation, all other limitations, restrictions, conditions, standards,
prohibitions, requirements, obligations, schedules and timetables contained in
the Environmental Laws, except where the failure so to be in compliance would
not result in a Property Material Adverse Effect;


 


(iii)                               there
is no civil, criminal or administrative action, suit, demand, claim, hearing,
notice of violation, investigation, proceeding, notice of demand letter pending
or threatened against it or any Affiliate under the Environmental Laws which
would result in a fine, penalty or other cost or expense other than such
instances that would not result in a Property Material Adverse Effect; and


 


(iv)                              there
are no past or present events, conditions, circumstances, activities,
practices, incidents, actions or plans which may interfere with or prevent
compliance with the Environmental Laws, or which may give rise to any
common law or legal liability including, without limitation, liability under
the Comprehensive Environmental Response, Compensation and Liability Act of
1980, as amended, or any other Environmental Law or related common law theory
or otherwise form the basis of any claim, action, demand, suit,
proceeding, hearing or notice of violation, study or investigation, based on or
related to the manufacture, processing, distribution, use, generation,
treatment, storage, disposal, transport or handling, or the emission,
discharge, release or threatened release into the environment, of any Hazardous
Materials which would result in a fine, penalty or other cost or expense other
than such instances that would not result in a Property Material Adverse
Effect.


 


SECTION 3.8  No
Conflicts, Consents, etc. Neither the execution and delivery hereof by the
Mortgagor nor the consummation of the transactions herein contemplated nor the
fulfillment of the terms hereof (i) violates the terms of any agreement,
indenture, mortgage, deed of trust, equipment lease, instrument or other
document to which the Mortgagor is a party, or by which it may be bound or
to which any of its properties or assets may be subject, (ii) conflicts
with any Requirement of Law applicable to the Mortgagor or its property or (iii) results
in or requires the creation or imposition of any Lien (other than the Lien
contemplated hereby) upon or with respect to any of the Mortgaged Property, except
where such violation, conflict, creation or imposition would not have a
Property Material Adverse Effect. No consent of any party (including, without
limitation, equityholders or creditors of the Mortgagor) and no consent,
authorization, approval, license or other action by, and no notice to or filing
with, any Governmental Authority or regulatory body or other Person (other than
with respect to any required Permits) is required for (i) the granting of
a mortgage Lien on and security interest in the Mortgaged Property by the
Mortgagor granted by it pursuant to this Mortgage or for the execution,
delivery or performance hereof by the Mortgagor except for the filing of this
Mortgage and the other filings contemplated hereby or (ii) the exercise by
the Mortgagee of the remedies in respect of the Mortgaged Property pursuant to
this Mortgage other than those required by law in connection with the exercise
of the applicable remedy.


 


13

















 


SECTION 3.9  Benefit
to the Mortgagor. The Mortgagor represents and warrants that it will
receive substantial benefit as a result of the execution, delivery, and
performance of the Indenture, the Notes and the Collateral Documents.


 


ARTICLE IV


 


CERTAIN
COVENANTS OF MORTGAGOR


 


SECTION 4.1  Preservation
of Corporate Existence. The Mortgagor shall:


 


(i)                                     preserve
and maintain in full force and effect its existence and good standing under the
laws of the jurisdiction of its organization;


 


(ii)                                  preserve
and maintain in full force and effect its qualification to transact business
and good standing in the state in which the Mortgaged Property is located; and


 


(iii)                               preserve
and maintain in full force and effect all consents, authorizations and
approvals necessary or required of any Governmental Authority or any other
Person relating to the execution, delivery and performance hereof, except where
the failure to do so would not result in a Property Material Adverse Effect.


 


SECTION 4.2  Title.
The Mortgagor shall:


 


(i)                                     (A) keep
in effect all material rights and appurtenances to or that constitute a part of
the Mortgaged Property and (B) protect, preserve and defend its interest
in the Mortgaged Property and title thereto, except against Permitted Collateral
Liens (other than the Lien created by this Mortgage);


 


(ii)                                  (A) comply,
in all material respects, with each of the terms, conditions and provisions of
any obligation of the Mortgagor which is secured by the Mortgaged Property,
except where the failure to so comply would not result in a Property Material
Adverse Effect, or the noncompliance with which may result in the
imposition of a Lien on the Mortgaged Property, (B) forever warrant and
defend to the Mortgagee the Lien and security interests created and evidenced
hereby and the validity and priority hereof in any action or proceeding against
the claims of any and all Persons whomsoever affecting or purporting to affect
the Mortgaged Property or any of the rights of the Mortgagee hereunder, except
against Permitted Collateral Liens (other than the Lien of this Mortgage), and (C) maintain
a valid and enforceable first priority Lien, except for Permitted Collateral
Liens (other than the Lien of this Mortgage) on the Mortgaged Property and, to
the extent any of the Mortgaged Property shall consist of Fixtures, a first
priority security interest in the Mortgaged Property, which first priority Lien
and security interest shall be subject only to Permitted Collateral Liens; and


 


(iii)                               immediately
upon obtaining knowledge of the pendency of any proceedings for the eviction of
the Mortgagor from the Mortgaged Property or any part thereof by paramount
title or otherwise questioning the Mortgagor’s right, title and interest in, to
and under the Mortgaged Property as warranted in this Mortgage, or of any
condition that could give rise to any such proceedings, notify the Mortgagee
thereof. The Mortgagee may participate in such proceedings and the
Mortgagor will deliver or cause to be delivered to the Mortgagee all
instruments requested by the Mortgagee to permit such participation. In any
such proceedings, the Mortgagee may be represented by counsel reasonably
satisfactory to the Mortgagee at the reasonable expense of the Mortgagor. If,
upon the resolution of


 


14

















 


such proceedings, the Mortgagor shall suffer a loss of the Mortgaged
Property or any part thereof or interest therein and title insurance
proceeds shall be payable in connection therewith, such proceeds are hereby
assigned to and shall be paid to the Mortgagee for deposit into the Collateral
Account and shall be applied in the manner applicable to Net Loss Proceeds in
accordance with the provisions of Sections 4.16, 10.05(c) and 11.02 of the
Indenture.


 


SECTION 4.3  Maintenance
and Use of Mortgaged Property; Alterations.


 


(i)                                     Maintenance.
The Mortgagor shall cause the representations and warranties set forth in Section 3.3
hereof to continue to be true in each and every respect and shall pay or cause
to be paid when due all Charges, costs and expenses relating thereto, other
than such Charges being contested in accordance with Section 9.1
hereof.


 


(ii)                                  Maintenance
of Premises. The Mortgagor shall not commit or suffer any waste on the
Premises. The Mortgagor shall, at all times, maintain the Premises in good
working order, condition and repair, reasonable wear and tear excepted, and
shall use commercially reasonable efforts to make or cause to be made all
repairs, structural or nonstructural, which are necessary or appropriate in the
conduct of the Mortgagor’s business. The Mortgagor shall not, except as
permitted in Section 4.3(iii) hereof, alter the occupancy or use
of all or any portion of the Premises without the prior written consent of the
Mortgagee, which consent shall not be unreasonably withheld. Except to the
extent permitted pursuant to the provisions of Section 4.3(iii) hereof,
the Mortgagor shall not remove, demolish or alter the structural character of
any Improvement now or hereafter erected upon all or any portion of the
Premises, or permit any such removal, demolition or alteration, without the
prior written consent of the Mortgagee, which consent shall not be unreasonably
withheld.


 


(iii)                               Alterations.
The Mortgagor shall not, without the prior written consent of the Mortgagee,
which consent shall not be unreasonably withheld, make any Alteration to the
Premises except as permitted by Sections 10.04 and 10.06 of the Indenture. Whether
or not the making of any Alteration shall require the consent of the Mortgagee
pursuant to the immediately preceding sentence, the Mortgagor shall (A) complete
each Alteration promptly, in a good and workmanlike manner and in compliance,
in all material respects, with all applicable local laws, ordinances and
requirements and (B) pay when due all claims for labor performed and
materials furnished in connection with such Alteration, unless contested in
accordance with the provisions of Article IX hereof.


 


(iv)                              Permits.
The Mortgagor shall maintain, or cause to be maintained, in full force and
effect all Permits contemplated by and subject to Section 3.3(i) hereof.
Unless and to the extent contested by the Mortgagor in accordance with the
provisions of Article IX hereof, the Mortgagor shall comply, in all
material respects, with all requirements set forth in the Permits and all
Requirements of Law applicable to all or any portion of the Mortgaged Property
or the condition, use or occupancy of all or any portion thereof or any
recorded deed of restriction, declaration, covenant running with the land or
otherwise, now or hereafter in force, subject to the provisions of Section 3.3
hereof.


 


(v)                                 Zoning.
The Mortgagor shall not initiate, join in, or consent to any change in the
zoning or any other permitted use classification of the Premises without the
prior written consent of the Mortgagee, which consent shall not be unreasonably
withheld.


 


SECTION 4.4  Notices
Regarding Certain Defaults. The Mortgagor shall, promptly upon receipt of
any written notice regarding (i) any default by the Mortgagor relating to
the Mortgaged Property or any portion thereof or (ii) the failure to
discharge any of Mortgagor’s obligations with respect to the Mortgaged Property
or any portion thereof described herein, furnish a copy of such notice to the
Mortgagee.


 


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SECTION 4.5  Access
to Mortgaged Property, Books and Records; Other Information. Upon request to
the Mortgagor, the Mortgagee, its agents, accountants and attorneys shall have
full and free access to visit and inspect, as applicable, during normal
business hours and such other reasonable time as may be requested by the
Mortgagee, all of the Mortgaged Property including, without limitation, all of
the books, correspondence and records of the Mortgagor relating thereto. The
Mortgagee and its representatives may examine the same, take extracts
therefrom and make photocopies thereof. The Mortgagor shall, at any and all
times, within a reasonable time after written request by the Mortgagee, furnish
or cause to be furnished to the Mortgagee, in such manner and in such detail as
may be reasonably requested by the Mortgagee, additional information with
respect to the Mortgaged Property.


 


SECTION 4.6  Limitation
on Liens; Transfer Restrictions. The Mortgagor may not, without the
prior written consent of the Mortgagee, further mortgage, encumber, hypothecate,
sell, convey or assign all or any part of the Mortgaged Property or suffer
or allow any of the foregoing to occur by operation of law or otherwise; provided,
however, that the Mortgagor shall have the right to (1) sell,
convey or assign all or any portion of the Mortgaged Property in accordance
with the provisions of the Indenture and (2) suffer to exist the following
Liens in respect of the Mortgaged Property: (i) Prior Liens (but not
extensions, amendments, supplements or replacements of Prior Liens unless (A) extended,
amended, supplemented or replaced in a manner permitted by the Indenture or (B) consented
to by the Mortgagee which consent shall not be unreasonably withheld), (ii) the
Lien and security interest created by this Mortgage or any other Collateral
Document, (iii) Contested Liens, (iv) Liens described in clause (9) of
the definition of Permitted Liens (provided, however, that such
Liens shall not extend to or cover any Mortgaged Property other than equipment
subject to Capital Leases Obligations or Purchase Money Obligations incurred in
accordance with the provisions of the Indenture) or clause (4) of the
definition of Permitted Liens, and (v) Leases to the extent permitted
pursuant to the provisions of Article V hereof (the Liens described
in clauses (i) through (v) of this sentence, collectively, “Permitted
Collateral Liens”).


 


SECTION 4.7  Environmental.


 


(i)                                     Hazardous
Materials. Except where the failure to do so would not result in a Property
Material Adverse Effect, the Mortgagor shall (A) comply with any and all
present and future Environmental Laws applicable to the Mortgaged Property, (B) not
release, store, treat, handle, generate, discharge or dispose of any Hazardous
Materials at, on, under or from the Mortgaged Property in violation of or in a
manner that could result in any material liability under any present and future
Environmental Law and (C) take all necessary steps to initiate and
expeditiously complete all remedial, corrective and other action to eliminate
any such effect. In the event the Mortgagor fails to comply with the covenants
in the preceding sentence, the Mortgagee may, in addition to any other remedies
set forth herein, as agent for the Mortgagor and at the Mortgagor’s sole cost
and expense, cause any remediation, removal or response action relating to
Hazardous Materials required by applicable Environmental Laws to be taken and
the Mortgagor shall provide to the Mortgagee and its agents and employees
access to the Mortgaged Property for such purpose. Any reasonable costs or
expenses incurred by the Mortgagee for such purpose shall be immediately due
and payable by the Mortgagor and shall bear interest at the Default Rate. The
Mortgagee shall have the right at any time when an Event of Default shall have
occurred and be continuing and at such other times when a potential violation
of any present or future Environmental Law exists which in the Mortgagee’s
reasonable judgment could result in any material liability or obligation under
such Environmental Law, at the sole cost and expense of the Mortgagor, to
conduct an environmental audit of the Mortgaged Property by such persons or
firms appointed by the Mortgagee, and the Mortgagor shall cooperate in all
respects in the conduct of such environmental audit, including, without
limitation, by providing access to the Mortgaged Property and to all records
relating thereto. To the extent that any such environmental audit identifies
conditions which in the Mortgagee’s reasonable judgment would result in any
material liability or obligation under any present or future Environmental Law,
the Mortgagor agrees to expeditiously correct any such violation or respond to
conditions giving rise to such liability or obligations in a


 


16

















 


manner which complies in all material respects with
the Environmental Laws and mitigates associated health and environmental risks.
The Mortgagor shall indemnify and hold the Mortgagee and each of the other
Secured Parties harmless from and against all loss, cost, damage or reasonable
expense (including, without limitation, reasonable attorneys’ and consultants’
fees and disbursements) that the Mortgagee or any other Secured Party may sustain
by reason of the assertion against the Mortgagee or any Secured Party by any
party of any claim relating to such Hazardous Materials on, under or from the
Mortgaged Property or actions taken with respect thereto as authorized
hereunder, except to the extent arising from the gross negligence or willful
misconduct of the Mortgagee or any other Secured Party. The foregoing indemnification
shall survive repayment of all Secured Obligations and any release or
assignment hereof; and


 


(ii)                                  Asbestos.
The Mortgagor shall not install nor permit to be installed in or removed from
the Mortgaged Property, asbestos or any asbestos-containing material
(collectively, “ACM”) except in compliance, in all material respects,
with all applicable Environmental Laws, and with respect to any ACM currently
present in the Mortgaged Property, the Mortgagor shall promptly either (A) remove
any ACM which such Environmental Laws require to be removed or (B) otherwise
comply, in all material respects, with such Environmental Laws with respect to
such ACM, all at the Mortgagor’s sole cost and expense. If the Mortgagor shall
fail so to remove any ACM or otherwise comply, in all material respects, with
such laws or regulations, the Mortgagee may, in addition to any other remedies
set forth herein, take reasonable or necessary steps to eliminate any ACM from
the Mortgaged Property or otherwise comply, in all material respects, with
applicable law, regulations or orders and the Mortgagor shall provide to the
Mortgagee and its agents and employees access to the Mortgaged Property for
such purpose. Any reasonable costs or expenses incurred by the Mortgagee for
such purpose shall be immediately due and payable by the Mortgagor and bear
interest at the Default Rate. The Mortgagor shall indemnify and hold the
Mortgagee and the other Secured Parties harmless from and against all loss,
cost, damage and expense (including, without limitation, reasonable attorneys’
and consultants’ fees and disbursements) that the Mortgagee or the other
Secured Parties may sustain, as a result of the presence of any ACM and
any removal thereof or compliance with all applicable Environmental Laws, except
to the extent arising from the gross negligence or willful misconduct of the
Mortgagee or any other Secured Party. The foregoing indemnification shall
survive repayment of all Secured Obligations and any release or assignment
hereof.


 


SECTION 4.8  Estoppel
Certificates. The Mortgagor shall, from time to time, upon thirty (30) days’
prior written reasonable request of the Mortgagee, execute, acknowledge and
deliver to the Mortgagee an Officers’ Certificate stating that this Mortgage,
the Indenture, the Notes and the Collateral Documents are unmodified and in
full force and effect (or, if there have been modifications, that this
Mortgage, the Indenture, the Notes and the Collateral Documents, as applicable,
is or are in full force and effect as modified and setting forth such
modifications) and stating the date to which principal and interest have been
paid on the Notes.


 


ARTICLE V


 


LEASES


 


SECTION 5.1  Mortgagor’s
Affirmative Covenants with Respect to Leases. With respect to each Lease,
the Mortgagor shall:


 


(i)                                     observe
and perform, in all material respects, all the obligations imposed upon the
Landlord under such Lease;


 


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(ii)                                  promptly
send copies to the Mortgagee of all notices of default which the Mortgagor
shall send or receive thereunder; and


 


(iii)                               enforce
all of the terms, covenants and conditions contained in such Lease upon the part of
the Tenant thereunder to be observed or performed to the extent it would be
commercially reasonable to do so.


 


SECTION 5.2  Mortgagor’s
Negative Covenants with Respect to Leases. With respect to each Lease, the
Mortgagor shall not, without the prior written consent of the Mortgagee, which
consent shall not be unreasonably withheld:


 


(i)                                     receive
or collect, or permit the receipt or collection of, any Rent under such Lease
more than one (1) month in advance of the respective period in respect of
which such Rent is to accrue, except:


 


(A)                              in connection with the
execution and delivery of such Lease (or of any amendment to such Lease), Rent
thereunder may be collected and received in advance in an amount not in
excess of one (1) month’s Rent;


 


(B)                                the amount held by
Landlord as a reasonable security deposit thereunder; and


 


(C)                                any amount received and
collected for escalation and other charges in accordance with the terms of such
Lease;


 


(ii)                                  assign,
transfer or hypothecate (other than to the Mortgagee hereunder) any Rent under
such Lease whether then due or to accrue in the future or the interest of the
Mortgagor as Landlord under such Lease;


 


(iii)                               enter
into any amendment or modification of such Lease which would materially
decrease the unexpired term thereof or decrease the amount of the Rents payable
thereunder or materially impair the value or utility of the Mortgaged Property
or the security provided by this Mortgage;


 


(iv)                              terminate
(whether by exercising any contractual right of the Mortgagor to recapture
leased space or otherwise) or permit the termination of such Lease or accept
surrender of all or any portion of the space demised under such Lease prior to
the end of the term thereof or accept assignment of such Lease to the Mortgagor
unless:


 


(A)                              the Tenant under such
Lease has not paid the equivalent of two (2) months’ Rent and the
Mortgagor has made reasonable efforts to collect such Rent; and


 


(B)                                it would be
commercially reasonable to terminate such Lease; or


 


(v)                                 waive,
excuse, condone or in any manner discharge or release any Tenants of or from
the material obligations of such Tenants under their respective Leases or
guarantors of Tenants from any material obligations under any guarantees of the
Leases except as the same would be done by a Prudent Operator with due regard
for the security afforded the Mortgagee thereby.


 


SECTION 5.3  Additional
Requirements with Respect to New Leases. In addition to the requirements of
Sections 5.1 and 5.2 hereof, the Mortgagor shall not enter into
any Lease after the date hereof


 


18

















 


unless the Tenant under such Lease has entered into a
Subordination Agreement and has otherwise complied with the provisions of Section 10.06
of the Indenture.


 


ARTICLE VI


 


CONCERNING
ASSIGNMENT OF LEASES AND RENTS


 


SECTION 6.1  Present
Assignment; License to the Mortgagor. Section 2.2 of this Mortgage
constitutes a present, absolute, effective, irrevocable and complete assignment
by the Mortgagor to the Mortgagee of the Leases and Rents and the right,
subject to applicable law, to collect all sums payable to the Mortgagor
thereunder and apply the same as the Mortgagee may, in its sole discretion,
determine to be appropriate (including the payment of reasonable costs and
expenses in connection with the maintenance, operation, improvement, insurance,
taxes and upkeep of the Mortgaged Property), which is not conditioned upon the
Mortgagee being in possession of the Premises. The Mortgagee hereby grants to
the Mortgagor, however, a license to collect and apply the Rents and to enforce
the obligations of Tenants under the Leases. Immediately upon the occurrence of
and during the continuance of any Event of Default or a Default, the license
granted in the immediately preceding sentence shall cease and terminate, with
or without any notice, action or proceeding or the intervention of a receiver
appointed by a court.


 


SECTION 6.2  Collection
of Rents by the Mortgagee.


 


(i)                                     From
and after the occurrence and during the continuance of an Event of Default or a
Default, any Rents receivable by the Mortgagee hereunder, after payment of all
proper costs and expenses as Mortgagee may, in its sole discretion, determine
to be appropriate (including the payment of reasonable costs and expenses in
connection with the maintenance, operation, improvement, insurance, taxes and
upkeep of the Mortgaged Property), shall be applied to the Secured Obligations
or, at the option of the Mortgagee, shall be held by the Mortgagee as
additional collateral to secure the performance by the Mortgagor of the Secured
Obligations. The Mortgagee shall be accountable to the Mortgagor only for Rents
actually received by the Mortgagee. The collection of such Rents and the
application thereof shall not cure or waive any Event of Default or a Default
or waive, modify or affect notice of Event of Default or a Default or
invalidate any act done pursuant to such notice.


 


(ii)                                  The
Mortgagor hereby irrevocably authorizes and directs Tenant under each Lease to
rely upon and comply with any and all notices or demands from the Mortgagee for
payment of Rents to the Mortgagee and the Mortgagor shall have no claim against
Tenant for Rents paid by Tenant to the Mortgagee pursuant to such notice or
demand.


 


SECTION 6.3  No
Release. Neither this Mortgage nor any action or inaction on the part of
the Mortgagee shall release any Tenant under any Lease, any guarantor of any
Lease or the Mortgagor from any of their respective obligations under such
Leases or constitute an assumption of any such obligation on the part of
the Mortgagee. No action or failure to act on the part of the Mortgagor
shall adversely affect or limit the rights of the Mortgagee under this Mortgage
or, through this Mortgage, under such Leases. Nothing contained herein shall
operate or be construed to (i) obligate the Mortgagee to perform any
of the terms, covenants or conditions contained in any Lease or otherwise to
impose any obligation upon the Mortgagee with respect to such Lease (including,
without limitation, any obligation arising out of any covenant of quiet
enjoyment contained in such Lease in the event that Tenant under such Lease
shall have been joined as a party defendant in any action by which the estate
of such Tenant shall be terminated) or (ii) place upon the Mortgagee any
obligation for the operation, control, care, management or repair of the
Premises.


 


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SECTION 6.4  Irrevocable
Interest. All rights, powers and privileges of the Mortgagee herein set
forth are coupled with an interest and are irrevocable, subject to the terms
and conditions hereof, and the Mortgagor shall not take any action under the
Leases or otherwise which is inconsistent with this Mortgage or any of the
terms hereof and any such action inconsistent herewith or therewith shall be
void.


 


SECTION 6.5  Amendment
to Leases. Each Lease, including, without limitation, all amendments,
modifications, supplements, replacements, extensions and renewals thereof,
shall continue to be subject to the provisions hereof without the necessity of
any further act by any of the parties hereto.


 


ARTICLE VII


 


TAXES
AND CERTAIN STATUTORY LIENS


 


SECTION 7.1  Payment
of Charges. Unless and to the extent contested by the Mortgagor in
accordance with the provisions of Article IX hereof, the Mortgagor
shall pay and discharge, or cause to be paid and discharged, from time to time
when the same shall become due (or within any applicable grace period) , all
Charges subject to this Article VII. The Mortgagor shall, upon the
Mortgagee’s request, deliver to the Mortgagee receipts evidencing the payment
of all such Charges.


 


SECTION 7.2  Escrow
of Taxes. From and after the occurrence and during the continuance of an
Event of Default or a Default, at the option and upon the request of the
Mortgagee, the Mortgagor shall deposit with the Mortgagee in an account
maintained by the Mortgagee (the “Tax Escrow Fund”), on the first day of
each month, an amount estimated by the Mortgagee to be equal to one-twelfth of
the annual real property taxes and other annual Charges required to be
discharged by the Mortgagor under Section 7.1 hereof. Such amounts
shall be held by the Mortgagee without interest to the Mortgagor and applied to
the payment of the obligations in respect of which such amounts were deposited,
in such priority as the Mortgagee shall determine, on or before the respective
dates on which such obligations or any part thereof would become
delinquent. Nothing contained in this Article VII shall (i) affect
any right or remedy of the Mortgagee under any provision hereof or of any
statute or rule of law to pay any such amount as provided above from its
own funds and to add the amount so paid, together with interest at the Default
Rate during such time that any amount remains outstanding, to the Secured
Obligations or (ii) relieve the Mortgagor of its obligations to make or
provide for the payment of the annual real property taxes and other annual
Charges required to be discharged by the Mortgagor under Section 7.1
hereof.


 


SECTION 7.3  Certain
Statutory Liens. Unless and to the extent contested by the Mortgagor in
accordance with the provisions of Article IX hereof, the Mortgagor
shall timely pay, or cause to be paid, all lawful claims and demands of
mechanics, materialmen, laborers, government agencies administering worker’s
compensation insurance, old age pensions and social security benefits and all
other claims, judgments, demands or amounts of any nature which, if unpaid,
would result in, or permit the creation of, a Lien on the Mortgaged Property or
any part thereof, or which would result in forfeiture of all or any part of
the Mortgaged Property.


 


SECTION 7.4  Stamp
and Other Taxes. Unless and to the extent contested by the Mortgagor in
accordance with the provisions of Article IX hereof, the Mortgagor
shall pay any United States documentary stamp taxes, with interest and fines
and penalties, and any mortgage recording taxes, with interest and fines and
penalties, that may hereafter be levied, imposed or assessed under or upon
or by reason hereof or the Secured Obligations or any instrument or transaction
affecting or relating to either thereof and in default thereof the Mortgagee may advance
the same and the amount so advanced shall be payable by the Mortgagor to the
Mortgagee in accordance with the provisions of Section 14.5 hereof.


 


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SECTION 7.5  Certain
Tax Law Changes. In the event of the passage after the date hereof of any
law deducting from the value of real property, for the purpose of taxation,
amounts in respect of any Lien thereon or changing in any way the laws for the
taxation of mortgages or debts secured by mortgages for state or local purposes
or the manner of the collection of any Charges, and imposing any Charges,
either directly or indirectly, on this Mortgage, the Indenture or any other
Collateral Document, the Mortgagor shall promptly pay to the Mortgagee such
amount or amounts as may be necessary from time to time to pay any such
Charges.


 


SECTION 7.6  Proceeds
of Tax Claim. In the event that the proceeds of any tax claim are paid
after the Mortgagee has exercised its right to foreclose the Lien hereof, such
proceeds shall be paid to the Mortgagee to satisfy any deficiency remaining
after such foreclosure. The Mortgagee shall retain its interest in the proceeds
of any tax claim during any redemption period. The amount of any such proceeds
in excess of any deficiency claim of the Mortgagee shall in a prompt manner be
released to the Mortgagor.


 


ARTICLE VIII


 


INSURANCE


 


SECTION 8.1  Required
Insurance Policies and Coverages. The Mortgagor shall maintain in respect
of the Premises the insurance policies and coverages required under Section 4.19(b) of
the Indenture.


 


SECTION 8.2  Delivery
After Foreclosure. In the event that the proceeds of any insurance claim
are paid after the Mortgagee has exercised its right to foreclose the Lien
hereof, such proceeds shall be paid to the Mortgagee to satisfy any deficiency
remaining after such foreclosure. Mortgagee shall retain its interest in the
Insurance Policies required to be maintained pursuant to this Mortgage during
any redemption period. The amount of any such proceeds in excess of any
deficiency claim of the Mortgagee shall be released to the Mortgagor.


 


ARTICLE IX


 


CONTESTING
OF PAYMENTS


 


SECTION 9.1  Contesting
of Taxes and Certain Statutory Liens. The Mortgagor may at its own
expense contest the validity, amount or applicability of any Charges as long as
the contest thereof shall be conducted in accordance with, and permitted
pursuant to the provisions of, the Indenture. Notwithstanding the foregoing
provisions of this Section 9.1, (i) no contest of any such
obligations may be pursued by the Mortgagor (A) if such contest would
expose the Mortgagee or any Holder to any possible criminal liability or (B) unless
the Mortgagor shall have furnished a bond or other security therefor reasonably
satisfactory to the Mortgagee or such Holder, as the case may be, including
for any additional civil liability for failure to comply with such obligations
and (ii) if at any time payment or performance of any obligation contested
by the Mortgagor pursuant to this Section 9.1 shall become
necessary to prevent the imminent imposition of remedies because of
non-payment, the Mortgagor shall pay or perform the same in sufficient
time to prevent the imposition of remedies in respect of such default or
prospective default.


 


SECTION 9.2  Contesting
of Insurance. The Mortgagor shall not take any action that would reasonably
be expected to cause the termination, revocation or denial of any insurance
coverage required to be maintained under this Mortgage or that would be the
basis for a defense to any claim under any Insurance Policy maintained in
respect of the Premises and the Mortgagor shall otherwise comply in all
respects with all Insurance Requirements in respect of the Premises; provided,
however, that the Mortgagor may, at its own expense


 


21

















 


and after written notice to the Mortgagee, (i) contest
the applicability or enforceability of any such Insurance Requirements by
appropriate legal proceedings, prosecution of which does not constitute a basis
for cancellation or revocation of any insurance coverage required under Article VIII
hereof or (ii) cause the Insurance Policy containing any such Insurance
Requirement to be replaced by a new policy complying with the provisions of Article VIII
hereof.


 


ARTICLE X


 


DESTRUCTION,
CONDEMNATION AND RESTORATION


 


SECTION 10.1  Destruction.
If there shall occur any Destruction, individually or in the aggregate, in
excess of $100,000, the Mortgagor shall promptly send to the Mortgagee a
written notice setting forth the nature and extent of such Destruction. The
proceeds of any insurance payable in respect of such Destruction are hereby assigned
and shall be paid to the Mortgagee. The Net Loss Proceeds arising out of such
Destruction, shall be applied in accordance with the provisions of Sections
4.16, 10.05(c) and 11.02 of the Indenture.


 


SECTION 10.2  Condemnation.
If there shall occur any Taking or the commencement of any proceeding thereof,
the Mortgagor shall immediately notify the Mortgagee upon receiving notice of
such Taking or commencement of proceedings therefor. The Mortgagee may, at its
option, participate in any proceedings or negotiations which might result in
any Taking, and the Mortgagor shall deliver or cause to be delivered to the
Mortgagee all instruments requested by it to permit such participation. The
Mortgagee may be represented by counsel reasonably satisfactory to it at
the reasonable expense of the Mortgagor in connection with any such participation.
The Mortgagor shall pay all reasonable fees, costs and expenses incurred by the
Mortgagee in connection with any Taking and in seeking and obtaining any award
or payment on account thereof. Any proceeds, award or payment in respect of any
Taking are hereby assigned and shall be paid to the Mortgagee. The Mortgagor
shall take all steps necessary to notify the condemning authority of such
assignment. The Net Loss Proceeds arising out of such Taking shall be applied
in accordance with the provisions of Sections 4.16, 10.05(c) and 11.02 of
the Indenture.


 


ARTICLE XI


 


EVENTS
OF DEFAULT AND REMEDIES


 


SECTION 11.1  Events
of Default. It shall be an Event of Default hereunder if there shall have
occurred and be continuing an Event of Default under the Indenture.


 


SECTION 11.2  Remedies
in Case of an Event of Default. If any Event of Default shall have occurred
and be continuing, the Mortgagee may at its option, in addition to any
other action permitted under this Mortgage or the Indenture or by law, statute
or in equity, take one or more of the following actions to the greatest extent
permitted by local law:


 


(i)                                     by
written notice to the Issuer and the Mortgagor, declare the entire unpaid
amount of the Secured Obligations to be due and payable immediately;


 


(ii)                                  personally,
or by its agents or attorneys, (A) enter into and upon and take possession
of all or any part of the Premises together with the books, records and
accounts of the Mortgagor relating thereto and, exclude the Mortgagor, its
agents and servants wholly therefrom, (B) use, operate, manage


 


22

















 


and control the Premises and conduct the business thereof, (C) maintain
and restore the Premises, (D) make all necessary or proper repairs,
renewals and replacements and such useful Alterations thereto and thereon as
the Mortgagee may deem advisable, (E) manage, lease and operate the
Premises and carry on the business thereof and exercise all rights and powers
of the Mortgagor with respect thereto either in the name of the Mortgagor or
otherwise or (F) collect and receive all Rents. The Mortgagee shall be
under no liability for or by reason of any such taking of possession, entry,
removal or holding, operation or management except that any amounts so received
by the Mortgagee shall be applied in accordance with the provisions of the
Indenture;


 


(iii)                               with
or without entry, personally or by its agents or attorneys, (A) sell the
Mortgaged Property and all estate, right, title and interest, claim and demand
therein at one or more sales in one or more parcels, in accordance with the
provisions of Section 11.3 or (B) institute and prosecute
proceedings for the complete or partial foreclosure of the Lien and security
interests created and evidenced hereby; or


 


(iv)                              take
such steps to protect and enforce its rights whether by action, suit or
proceeding at law or in equity for the specific performance of any covenant,
condition or agreement in the Indenture, the Notes and the Collateral
Documents, or in aid of the execution of any power granted in this Mortgage, or
for any foreclosure hereunder, or for the enforcement of any other appropriate
legal or equitable remedy or otherwise as the Mortgagee shall elect.


 


SECTION 11.3  Sale
of Mortgaged Property if Event of Default Occurs; Proceeds of Sale.


 


(i)                                     If
any Event of Default shall have occurred and be continuing, the Mortgagee may institute
an action to foreclose this Mortgage or take such other action as may be
permitted and available to the Mortgagee at law or in equity for the
enforcement of the Indenture and the Notes and realization on the Mortgaged
Property and proceeds thereon through power of sale or to final judgment and
execution thereof for the Secured Obligations, and in furtherance thereof the
Mortgagee may sell the Mortgaged Property at one or more sales, as an
entirety or in parcels, at such time and place, upon such terms and after such
notice thereof as may be required or permitted by law or statute or in
equity. The Mortgagee may execute and deliver to the purchaser at such
sale a conveyance of the Mortgaged Property in fee simple and an assignment or
conveyance of all the Mortgagor’s Interest in the Leases and the Mortgaged
Property, each of which conveyances and assignments shall contain recitals as
to the Event of Default upon which the execution of the power of sale herein
granted depends, and the Mortgagor hereby constitutes and appoints the
Mortgagee the true and lawful attorney in fact of the Mortgagor to make any
such recitals, sale, assignment and conveyance, and all of the acts of the
Mortgagee as such attorney in fact are hereby ratified and confirmed. The
Mortgagor agrees that such recitals shall be binding and conclusive upon the
Mortgagor and that any assignment or conveyance to be made by the Mortgagee
shall divest the Mortgagor of all right, title, interest, equity and right of
redemption, including any statutory redemption, in and to the Mortgaged Property.
The power and agency hereby granted are coupled with an interest and are
irrevocable by death or dissolution, or otherwise, and are in addition to any
and all other remedies which the Mortgagee may have hereunder, at law or
in equity. So long as the Secured Obligations, or any part thereof, remain
unpaid, the Mortgagor agrees that possession of the Mortgaged Property by the
Mortgagor, or any person claiming under the Mortgagor, shall be as tenant, and,
in case of a sale under power or upon foreclosure as provided in this Mortgage,
the Mortgagor and any person in possession under the Mortgagor, as to whose
interest such sale was not made subject, shall, at the option of the purchaser
at such sale, then become and be tenants holding over, and shall forthwith
deliver possession to such purchaser, or be summarily dispossessed in
accordance with the laws applicable to tenants holding over. In case of any
sale under this Mortgage by virtue of the exercise of the powers herein
granted, or pursuant to any order in any judicial proceeding or otherwise, the
Mortgaged Property may be sold as an entirety or in separate parcels in
such manner or order as the Mortgagee in its sole discretion may elect. One
or more exercises of powers


 


23

















 


herein
granted shall not extinguish or exhaust such powers, until the entire Mortgaged
Property is sold or all amounts secured hereby are paid in full.


 


(ii)                                  In
the event of any sale made under or by virtue of this Article XI,
the entire principal of, and interest in respect of the Secured Obligations, if
not previously due and payable, shall, at the option of the Mortgagee,
immediately become due and payable, anything in this Mortgage to the contrary
notwithstanding.


 


(iii)                               The
proceeds of any sale made under or by virtue of this Article XI,
together with any other sums which then may be held by the Mortgagee under
this Mortgage, whether under the provisions of this Article XI or
otherwise, shall be applied in accordance with the provisions of the Indenture;


 


(iv)                              The
Mortgagee may bid for and acquire the Mortgaged Property or any part thereof
at any sale made under or by virtue of this Article XI and, in lieu
of paying cash therefor, may make settlement for the purchase price by
crediting against the purchase price the unpaid amounts (whether or not then
due and owing) in respect of the Secured Obligations, after deducting from the
sales price the expense of the sale and the reasonable costs of the action or
proceedings and any other sums that the Mortgagee is authorized to deduct under
this Mortgage.


 


(v)                                 The
Mortgagee may adjourn from time to time any sale by it to be made under or
by virtue hereof by announcement at the time and place appointed for such sale
or for such adjourned sale or sales, and, the Mortgagee, without further notice
or publication, may make such sale at the time and place to which the same
shall be so adjourned.


 


(vi)                              If
the Premises is comprised of more than one parcel of land, the Mortgagee may take
any of the actions authorized by this Section 11.3 in respect of
any or a number of individual parcels.


 


SECTION 11.4  Additional
Remedies in Case of an Event of Default.


 


(i)                                     The
Mortgagee shall be entitled to recover judgment as aforesaid either before,
after or during the pendency of any proceedings for the enforcement of the
provisions hereof, and the right of the Mortgagee to recover such judgment
shall not be affected by any entry or sale hereunder, or by the exercise of any
other right, power or remedy for the enforcement of the provisions hereof, or
the foreclosure of, or absolute conveyance pursuant to, this Mortgage. In case
of proceedings against the Mortgagor in insolvency or bankruptcy or any
proceedings for its reorganization or involving the liquidation of its assets,
the Mortgagee shall be entitled to prove the whole amount of principal and
interest and other payments, charges and costs due in respect of the Secured
Obligations to the full amount thereof without deducting therefrom any proceeds
obtained from the sale of the whole or any part of the Mortgaged Property;
provided, however, that in no case shall the Mortgagee receive a
greater amount than the aggregate of such principal, interest and such other
payments, charges and costs (with interest at the Default Rate) from the
proceeds of the sale of the Mortgaged Property and the distribution from the estate
of the Mortgagor.


 


(ii)                                  Any
recovery of any judgment by the Mortgagee and any levy of any execution under
any judgment upon the Mortgaged Property shall not affect in any manner or to
any extent the Lien and security interests created and evidenced hereby upon
the Mortgaged Property or any part thereof, or any conveyances, powers,
rights and remedies of the Mortgagee hereunder, but such conveyances, powers,
rights and remedies shall continue unimpaired as before.


 


(iii)                               Any
monies collected by the Mortgagee under this Section 11.4 shall be
applied in accordance with the provisions of Section 11.3(iii).


 


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SECTION 11.5  Legal
Proceedings After an Event of Default.


 


(i)                                     After
the occurrence and during the continuance of any Event of Default and
immediately upon the commencement of any action, suit or legal proceedings to
obtain judgment for the Secured Obligations or any part thereof, or of any
proceedings to foreclose the Lien and security interest created and evidenced
hereby or otherwise enforce the provisions hereof or of any other proceedings
in aid of the enforcement hereof, the Mortgagor shall enter its voluntary
appearance in such action, suit or proceeding.


 


(ii)                                  Upon
the occurrence and during the continuance of an Event of Default, the Mortgagee
shall be entitled forthwith as a matter of right, concurrently or independently
of any other right or remedy hereunder either before or after declaring the Secured
Obligations or any part thereof to be due and payable, to the appointment
of a receiver without giving notice to any party and without regard to the
adequacy or inadequacy of any security for the Secured Obligations or the
solvency or insolvency of any person or entity then legally or equitably liable
for the Secured Obligations or any portion thereof. The Mortgagor hereby
consents to the appointment of such receiver. Notwithstanding the appointment
of any receiver, the Mortgagee shall be entitled as pledgee to the possession
and control of any cash, deposits or instruments at the time held by or payable
or deliverable under the terms of the Indenture to the Mortgagee.


 


(iii)                               The
Mortgagor shall not (A) at any time insist upon, or plead, or in any
manner whatsoever claim or take any benefit or advantage of any stay or
extension or moratorium law, any exemption from execution or sale of the
Mortgaged Property or any part thereof, wherever enacted, now or at any
time hereafter in force, which may affect the covenants and terms of
performance hereof, (B) claim, take or insist on any benefit or advantage
of any law now or hereafter in force providing for the valuation or appraisal
of the Mortgaged Property, or any part thereof, prior to any sale or sales
of the Mortgaged Property which may be made pursuant to this Mortgage, or
pursuant to any decree, judgment or order of any court of competent
jurisdiction or (C) after any such sale or sales, claim or exercise any
right under any statute heretofore or hereafter enacted to redeem the property
so sold or any part thereof. To the extent permitted by applicable law,
the Mortgagor hereby expressly (A) waives all benefit or advantage of any
such law or laws, including, without limitation, any statute of limitations
applicable to this Mortgage, (B) waives all rights to have the Mortgaged
Property marshalled on any foreclosure of this Mortgage, (C) waives any
and all rights to trial by jury in any action or proceeding related to the
enforcement hereof, (D) waives any objection which it may now or
hereafter have to the laying of venue of any action, suit or proceeding brought
in connection with this Mortgage and further waives and agrees not to plead
that any such action, suit or proceeding brought in any such court has been
brought in an inconvenient forum and (E) covenants not to hinder, delay or
impede the execution of any power granted or delegated to the Mortgagee by this
Mortgage but to suffer and permit the execution of every such power as though
no such law or laws had been made or enacted. The Mortgagee shall not be liable
for any incorrect or improper payment made pursuant to this Article XI
in the absence of gross negligence or willful misconduct.


 


SECTION 11.6  Remedies
Not Exclusive. No remedy conferred upon or reserved to the Mortgagee by
this Mortgage is intended to be exclusive of any other remedy or remedies, and
each and every such remedy shall be cumulative and shall be in addition to
every other remedy given under this Mortgage or now or hereafter existing at
law or in equity. Any delay or omission of the Mortgagee to exercise any right
or power accruing on any Event of Default shall not impair any such right or
power and shall not be construed to be a waiver of or acquiescence in any such
Event of Default. Every power and remedy given by this Mortgage may be
exercised from time to time concurrently or independently, when and as often as
may be deemed expedient by the Mortgagee in such order and manner as the
Mortgagee, in its sole discretion, may elect. If the Mortgagee accepts any
monies required to be paid by the Mortgagor under this Mortgage after the same
become due, such acceptance shall not constitute a waiver of the right either
to require prompt payment, when due, of all other sums secured by this Mortgage
or to declare an Event of Default with regard to subsequent


 


25

















 


defaults. If the Mortgagee accepts any monies required
to be paid by the Mortgagor under this Mortgage in an amount less than the sum
then due, such acceptance shall be deemed an acceptance on account only and on
the condition that it shall not constitute a waiver of the obligation of the
Mortgagor to pay the entire sum then due, and the Mortgagor’s failure to pay
the entire sum then due shall be and continue to be a default hereunder notwithstanding
acceptance of such amount on account.


 


SECTION 11.7  Special
Louisiana Provisions.


 


(i)                                     Without
limiting the generality of the foregoing, should one or more Events of Default
occur or exist and be continuing under this Mortgage, as provided above, the
Mortgagee, at its option, may exercise any one or more of the following
rights and remedies, in addition to any other rights and remedies provided by
law and under this Mortgage to the greatest extent permitted by applicable
Louisiana law. Nothing contained herein shall be construed as constituting the
Mortgagee as mortgagee in possession in absence of the actual taking of possession
of the Premises by the Mortgagee.


 


(ii)                                  The
Mortgagee shall have the right, at its sole option, to accelerate the maturity
and demand immediate payment in full of any and all of the Secured Obligations.
The Mortgagee shall then have the right to commence appropriate foreclosure
proceedings against the Mortgaged Property and against the Mortgagor’s rights
as provided in this Mortgage.


 


(iii)                               In the event that the
Mortgagee elects to commence appropriate Louisiana foreclosure proceedings
under this Mortgage, the Mortgagee may cause the Mortgaged Property, or
any part or parts thereof, to be immediately seized and sold, whether in
term of court or in vacation, under ordinary or executory process, in
accordance with applicable Louisiana law, to the highest bidder for cash, with
or without appraisement, and without the necessity of making additional demand
upon or notifying the Mortgagor or placing the Mortgagor in default, all of
which are expressly waived.


 


(iv)                              For
purposes of foreclosure under Louisiana executory process procedures, the
Mortgagor confesses judgment and acknowledges to be indebted to the Mortgagee,
up to the full amount of the indebtedness in principal, interest, costs,
expenses, reasonable attorney’s fees and other fees and charges and amounts
contemplated hereunder. The Mortgagor further confesses judgment and
acknowledges to be indebted unto and in favor of the Mortgagee in the amount of
all future advances that the Mortgagee may make on the Mortgagor’s behalf
pursuant to this Mortgage, together with interest thereon. To the extent
permitted under applicable Louisiana law, the Mortgagor additionally waives:  (1) the benefit of appraisal as provided
in Articles 2332, 2336, 2723, and 2724 of the Louisiana Code of Civil
Procedure, and all other laws with regard to appraisal upon judicial sale; (2) the
demand and three (3) days’ delay provided under Articles 22639 and 2721 of
the Louisiana Code of Civil Procedure; (3) the notice of seizure as
provided under Articles 2293 and 2721 of the Louisiana Code of Civil Procedure;
(4) the three (3) days’ delay provided under Articles 2331, 2722 and
2723 of the Louisiana Code of Civil Procedure and all other Articles not
specifically mentioned above. The Mortgagor further agrees that any declaration
of fact made by authentic act before a Notary Public and two witnesses, by a
Person declaring that such facts are within his or her knowledge, shall
constitute authentic evidence of such facts for purposes of foreclosure under
applicable Louisiana law and for purposes of La. R.S. 9:3504(D)(6) and La.
R.S. 10:9-508, to the extent applicable.


 


(v)                                 Should
any or all of the Mortgaged Property be seized as an incident to an action for
the recognition or enforcement of this Mortgage, by executory process,
sequestration, attachment, writ of fieri facias or otherwise, the Mortgagor
hereby agrees that the court issuing any such order shall, if requested by the
Mortgagee, appoint the Mortgagee, or any agent designated by the Mortgagee or
any Person named by the Mortgagee at the time such seizure is requested, or any
time thereafter, as Keeper of the Mortgaged Property as provided under La. R.S.
9:5136, et seq. Such a Keeper shall be entitled to reasonable compensation. The


 


26

















 


Mortgagor
agrees to pay the reasonable fees of such Keeper which compensation to the
Keeper shall also be secured by this Mortgage in the form of any future
advances as provided in this Mortgage.


 


(vi)                              Should
it become necessary for the Mortgagee to foreclose under this Mortgage, all
declarations of fact, which are made under an authentic act before a Notary
Public in the presence of two witnesses, by a person declaring such facts to
lie within his or her knowledge, shall constitute authentic evidence for purposes
of executory process and also for purposes of La. R.S. 9:3509.1, La. R.S.
9:3504(D)(6) and La. R.S. 10:9-508, where applicable.


 


(vii)                           Should one or more Events of
Default occur or exist under this Mortgage, the Mortgagee shall have the
additional right, at its sole option, to separately sell the aforesaid rights,
or any part of parts thereof, at private or public compensation, or on
credit, or for future delivery, without the assumption of any credit risk. The
sale of the aforesaid rights may be without appraisement, the benefit of
which is also expressly waived by the Mortgagor. The Mortgagee may exercise
any other remedies with regard to the Mortgagor’s rights as may be authorized
under the Louisiana Commercial Laws (La. R.S. 10:9-101, et seq.).


 


(viii)                        To the extent provided by law,
and in the event of foreclosure under this Mortgage, or other transfer of title
or assignment of the Mortgaged Property, or any part or parts thereof, in
lieu of payment of the Secured Obligations, whether in whole or in part, all
policies of insurance and other rights applicable to the foreclosed Mortgaged
Property upon transfer of the Mortgaged Property shall automatically inure to
the benefit of and shall pass to the purchaser(s) or transferee(s) thereof,
subject to the rights of the purchaser(s) or transferee(s) to reject such
insurance coverage and/or rights at its or their sole option and election.


 


(ix)                                The
Mortgagee may, in addition to or in lieu of the foregoing remedies, in the
Mortgagee’s sole discretion, commence an appropriate action against the
Mortgagor seeking specific performance of any covenant contained in this Mortgage
or in aid of the execution or enforcement of any power in this Mortgage
granted.


 


(x)                                   Except
as may be prohibited by applicable law, all of the Mortgagee’s rights and
remedies, whether evidenced by this Mortgage or by any other writing, shall be
cumulative and may be exercised singularly or concurrently. Election by
the Mortgagee to pursue any remedy shall not exclude pursuit of any other
remedy, and an election to make expenditures or to take action to perform an
obligation of the Mortgagor under this Mortgage, after the Mortgagor’s failure
to perform shall not affect the Mortgagee’s right to declare a default and
exercise its remedies. Nothing under this Mortgage or otherwise shall be
construed so as to limit or restrict the rights and remedies available to the
Mortgagee following an Event of Default, or in any way to limit or restrict the
rights and abilities of the Mortgagee to proceed directly against Mortgagor
and/or against any other co-maker, guarantor, surety or endorser of the Secured
Obligations, and/or to proceed against any other collateral directly or
indirectly securing the Secured Obligations.


 


ARTICLE XII


 


SECURITY
AGREEMENT AND FIXTURE FILING


 


SECTION 12.1  Security
Agreement.


 


(i) This Mortgage shall constitute a Security Agreement as defined
in the Louisiana Commercial Laws, La. R.S. § 10:101 et seg., and shall
create and evidence a security interest in all the equipment and in all the
other items of Mortgaged Property in which a security interest may be
granted pursuant to the Louisiana Commercial Laws (collectively, “Personal
Property”).


 


27

















 


(ii) The remedies for any violation of the covenants, terms and
conditions of the agreements herein contained shall be as prescribed herein or
by general Louisiana law or, as to such part of the security which is also
reflected in any financing statement filed to perfect the security interest
herein created, by the specific statutory provisions now or hereinafter enacted
and specified in the Louisiana Commercial Laws, all at Mortgagee’s sole
election. The mention in any financing statement of (1) the rights in or
the proceeds of any fire or hazard insurance policy, or (2) any award in
eminent domain proceedings for a taking or for loss of value, or (3) Mortgagor’s
interest as lessor in any present or future lease or rights to income growing
out of the use or occupancy of the Mortgaged Property whether pursuant to lease
or otherwise, shall never be construed as in any way altering any of the rights
of Mortgagee under this Mortgage or impugning the priority of the Mortgagee’s
lien granted hereby or by any other recorded document. Rather, such mention in
the financing statement is declared to be for the protection of the Mortgagee
in the event any court or judge shall at any time hold with respect to (1), (2) and
(3) above, that notice of Mortgagee’s priority of interest to be effective
against a particular class of persons, including, but not limited to, the
Federal Government and any subdivisions or entity of the Federal Government,
must be filed with the clerk of court of any parish (or St. Landry Parish
Recorder of Mortgages) pursuant to Section 9-401 of the Louisiana
Commercial Laws.


 


SECTION 12.2  Fixture
Filing. From the date of its recording, this Mortgage shall be effective as
a fixture financing statement with respect to all goods constituting part of
the Mortgaged Property which are to become fixtures related to the Land. For
this purpose, the following information is set forth:


 


(a) Name and Address of Debtor:


 


Jalou
of Larose, LLC


11825
Highway 308


Lockport,
Louisiana 70374


 


and


 


(b) Name and Address of Secured Party:


 


Wells
Fargo Bank, National Association

Corporate Trust Services 

213 Court Street, Suite 703

Middletown, Connecticut 06457


 


(c) This document covers goods which are to become fixtures. All items
that are fixtures on the date of this Mortgage shall be subject to the mortgage
Lien granted hereunder.


 


ARTICLE XIII


 


FURTHER
ASSURANCES


 


SECTION 13.1  Recording
Documentation To Assure Security. The Mortgagor shall, forthwith after the
execution and delivery hereof and thereafter, from time to time, cause this
Mortgage and any financing statement, continuation statement or similar
instrument relating to any thereof or to any property intended to be subject to
the Lien hereof to be filed, registered and recorded in such manner and in such
places as may be required by any present or future law in order to publish
notice of and fully to protect the validity and priority thereof or the Lien
hereof purported to be created upon the Mortgaged Property and the interest and
rights of the Mortgagee therein. The Mortgagor shall pay or cause to be paid
all taxes and fees incident to


 


28

















 


such filing, registration and recording, and all
reasonable expenses incident to the preparation, execution and acknowledgment
thereof, and of any instrument of further assurance, and all Federal or state
stamp taxes or other taxes, duties and charges arising out of or in connection
with the execution and delivery of such instruments.


 


SECTION 13.2  Further
Acts. The Mortgagor shall, at the sole cost and expense of the Mortgagor,
do, execute, acknowledge and deliver all and every such further acts, deeds,
conveyances, mortgages, assignments, notices of assignment, transfers,
financing statements, continuation statements, instruments and assurances as
the Mortgagee shall from time to time reasonably request, which may be
necessary in the judgment of the Mortgagee from time to time to assure,
perfect, convey, assign, mortgage, transfer and confirm unto the Mortgagee, the
property and rights hereby conveyed or assigned or which the Mortgagor may be
or may hereafter become bound to convey or assign to the Mortgagee or for
carrying out the intention or facilitating the performance of the terms hereof
or the filing, registering or recording hereof. Without limiting the generality
of the foregoing, in the event that the Mortgagee desires to exercise any
remedies, consensual rights or attorney-in-fact powers set forth in this
Mortgage and determines it necessary to obtain any approvals or consents of any
Governmental Authority or any other Person therefor, then, upon the reasonable
request of the Mortgagee, the Mortgagor agrees to use its reasonable efforts to
assist and aid the Mortgagee to obtain as soon as practicable any necessary
approvals or consents for the exercise of any such remedies, rights and powers.
In the event the Mortgagor shall fail (i) within ten (10) Business
Days after demand, to execute or take any action required to be executed or
taken by the Mortgagor under this Section 13.2 to the extent same
is necessary to maintain perfection of the Lien granted to Mortgagee hereunder
or (ii) such failure shall constitute an Event of Default, to execute or
take any action required to be executed or taken by the Mortgagor under this Section 13.2
(other than the type described in clause (i) of this sentence) then, in
each of the cases described in clauses (i) and (ii) of this sentence,
the Mortgagee may execute or take the same as the attorney-in-fact for the
Mortgagor, such power of attorney being coupled with an interest and is
irrevocable.


 


SECTION 13.3  Additional
Security. Without notice to or consent of the Mortgagor and without
impairment of the Lien and rights created by this Mortgage, the Mortgagee may accept
(but the Mortgagor shall not be obligated to furnish) from the Mortgagor or
from any other Person, additional security for the Secured Obligations. Neither
the giving hereof nor the acceptance of any such additional security shall
prevent the Mortgagee from resorting, first, to such additional security, and,
second, to the security created by this Mortgage without affecting the
Mortgagee’s Lien and rights under this Mortgage.


 


ARTICLE XIV


 


MISCELLANEOUS


 


SECTION 14.1  Covenants
To Run with the Land. All of the grants, covenants, terms, provisions and
conditions in this Mortgage shall run with the Land and shall apply to, and
bind the successors and assigns of, the Mortgagor. If there shall be more than
one mortgagor with respect to the Mortgaged Property, the covenants and
warranties hereof shall be joint and several.


 


SECTION 14.2  No
Merger. The rights and estate created by this Mortgage shall not, under any
circumstances, be held to have merged into any other estate or interest now
owned or hereafter acquired by the Mortgagee unless the Mortgagee shall have
consented to such merger in writing, such consent not to be unreasonably
withheld.


 


29

















 


SECTION 14.3  Concerning
Mortgagee.


 


(i)                                     The
Mortgagee has been appointed as trustee pursuant to the Indenture. The actions
of the Mortgagee hereunder are subject to the provisions of the Indenture. The
Mortgagee shall have the right hereunder to make demands, to give notices, to
exercise or refrain from exercising any rights, and to take or refrain from
taking action (including, without limitation, the release or substitution of
the Mortgaged Property), in accordance with this Mortgage and the Indenture. The
Mortgagee may employ agents and attorneys-in-fact in connection herewith
and shall not be liable for the negligence or misconduct of any such agents or
attorneys-in-fact selected by it in good faith. The Mortgagee may resign
and a successor Mortgagee may be appointed in the manner provided in the
Indenture. Upon the acceptance of any appointment as the Mortgagee by a
successor Mortgagee, that successor Mortgagee shall thereupon succeed to and
become vested with all the rights, powers, privileges and duties of the
retiring Mortgagee under this Mortgage, and the retiring Mortgagee shall
thereupon be discharged from its duties and obligations under this Mortgage. After
any retiring Mortgagee’s resignation, the provisions hereof shall inure to its
benefit as to any actions taken or omitted to be taken by it under this
Mortgage while it was the Mortgagee.


 


(ii)                                  The
Mortgagee shall be deemed to have exercised reasonable care in the custody and
preservation of the Mortgaged Property in its possession if such Mortgaged
Property is accorded treatment substantially equivalent to that which the
Mortgagee, in its individual capacity, accords its own property consisting of
similar instruments or interests, it being understood that neither the Mortgagee
nor any of the Secured Parties shall have responsibility for taking any
necessary steps to preserve rights against any Person with respect to any Mortgaged
Property.


 


(iii)                               The
Mortgagee shall be entitled to rely upon any written notice, statement, certificate,
order or other document or any telephone message believed by it to be genuine
and correct and to have been signed, sent or made by the proper person, and,
with respect to all matters pertaining to this Mortgage and its duties hereunder,
upon advice of counsel selected by it.


 


(iv)                              If
any portion of the Mortgaged Property also constitutes collateral granted to
the Mortgagee under any other deed of trust, mortgage, security agreement,
pledge or instrument of any type, in the event of any conflict between the
provisions hereof and the provisions of such other deed of trust, mortgage,
security agreement, pledge or instrument of any type in respect of such
collateral, the Mortgagee, in its sole discretion, shall select which provision
or provisions shall control.


 


SECTION 14.4  Mortgagee
May Perform; Mortgagee Appointed Attorney-in-Fact. If the Mortgagor
shall fail to perform any covenants contained in this Mortgage, subject to
any applicable grace periods or contest rights permitted pursuant to Article IX
hereof or as otherwise permitted by any Collateral Document (including, without
limitation, the Mortgagor’s covenants to (i) pay the premiums in respect
of all required insurance policies hereunder, (ii) pay Charges, (iii) make
repairs, (iv) discharge Liens or (v) pay or perform any
obligations of the Mortgagor under any Mortgaged Property) or if any warranty
on the part of the Mortgagor contained herein shall be breached, the
Mortgagee may (but shall not be obligated to) do the same or cause it to
be done or remedy any such breach, and may expend funds for such purpose; provided,
however, that the Mortgagee shall in no event be bound to inquire into
the validity of any tax, Lien, imposition or other obligation which the
Mortgagor fails to pay or perform as and when required hereby and which
the Mortgagor does not contest in accordance with the provisions of Article IX
hereof. Any and all amounts reasonably so expended by the Mortgagee shall be
paid by the Mortgagor in accordance with the provisions of Section 14.5
hereof. Neither the provisions of this Section 14.4 nor any action
taken by the Mortgagee pursuant to the provisions of this Section 14.4
shall prevent any such failure to observe any covenant contained in this
Mortgage nor any breach of warranty from constituting an Event of Default. Upon
the occurrence and during the continuance of an Event of Default the Mortgagor
hereby appoints the Mortgagee its attorney-in-fact, with full


 


30

















 


authority in the place and stead of the Mortgagor and
in the name of the Mortgagor to take any action and to execute any instrument
consistent with the terms hereof and the other Collateral Documents which the
Mortgagee may deem necessary or advisable to accomplish the purposes
hereof. The foregoing grant of authority is a power of attorney coupled with an
interest and such appointment shall be irrevocable for the term hereof. The
Mortgagor hereby ratifies all that such attorney shall lawfully do or cause to
be done by virtue hereof.


 


SECTION 14.5  Expenses  The Mortgagor will upon demand pay to the
Mortgagee the amount of any and all reasonable costs and expenses, including
the reasonable fees and expenses of its counsel and the reasonable fees and
expenses of any experts and agents which the Mortgagee may incur in
connection with (i) any action, suit or other proceeding affecting the Mortgaged
Property or any part thereof commenced, in which action, suit or
proceeding the Mortgagee is made a party or participates or in which the right
to use the Mortgaged Property or any part thereof is threatened, or in
which it becomes necessary in the judgment of the Mortgagee to defend or uphold
the Lien hereof (including, without limitation, any action, suit or proceeding
to establish or uphold the compliance of the Mortgaged Property with any
Requirements of Law), (ii) the collection of the Secured Obligations, (iii) the
enforcement and administration hereof, (iv) the custody or preservation
of, or the sale of, collection from, or other realization upon, any of the
Mortgaged Property, (v) the exercise or enforcement of any of the rights
of the Mortgagee or any Secured Party hereunder or (vi) the failure by the
Mortgagor to perform or observe any of the provisions hereof. All amounts
expended by the Mortgagee and payable by the Mortgagor under this Section 14.5
shall be due upon demand therefor (together with interest thereon accruing at
the Default Rate during the period from and including the date on which such
funds were so expended to the date of repayment) and shall be part of the
Secured Obligations. The Mortgagor’s obligations under this Section 14.5
shall survive the termination hereof and the discharge of the Mortgagor’s other
obligations under this Mortgage.


 


SECTION 14.6  Indemnity.


 


(i)                                     The
Mortgagor agrees to indemnify, pay and hold harmless the Mortgagee and each of
the other Secured Parties and the officers, directors, employees, agents and
Affiliates of the Mortgagee and each of the other Secured Parties
(collectively, the “Indemnitees”) from and against any and all other
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, claims, costs (including, without limitation, settlement costs),
expenses or disbursements of any kind or nature whatsoever (including, without
limitation, the reasonable fees and disbursements of counsel for such
Indemnitees in connection with any investigative, administrative or judicial proceeding,
commenced or threatened, whether or not such Indemnitee shall be designated a
party thereto), which may be imposed on, incurred by or asserted against
that Indemnitee, in any manner relating to or arising out hereof, the Indenture,
the Notes, any other Collateral Document or any other document evidencing the
Secured Obligations (including, without limitation, any misrepresentation by
the Mortgagor in this Mortgage, the Indenture, the Notes, any other Collateral
Document or any other document evidencing the Secured Obligations (the “Indemnified
Liabilities”); provided, however, that the Mortgagor shall
have no obligation to an Indemnitee hereunder with respect to Indemnified
Liabilities to the extent it has been determined by a final decision (after all
appeals and the expiration of time to appeal) by a court of competent
jurisdiction that such Indemnified Liabilities arose from the gross negligence
or willful misconduct of that Indemnitee. To the extent that the undertaking to
indemnify, pay and hold harmless set forth in the preceding sentence may be
unenforceable because it is violative of any law or public policy, the
Mortgagor shall contribute the maximum portion which it is permitted to pay and
satisfy under applicable law, to the payment and satisfaction of all Indemnified
Liabilities incurred by the Indemnitees or any of them.


 


(ii)                                  Survival.
The obligations of the Mortgagor contained in this Section 14.6
shall survive the termination hereof and the discharge of the Mortgagor’s other
obligations under this Mortgage, the Indenture and the other Collateral
Documents.


 


31

















 


(iii)                               Reimbursement.
Any amount paid by any Indemnitee as to which such Indemnitee has the right to
reimbursement shall constitute Secured Obligations secured by the Mortgaged
Property.


 


SECTION 14.7  Continuing
Security Interest; Assignment. This Mortgage shall create a continuing Lien
on and security interest in the Mortgaged Property and shall (i) be
binding upon the Mortgagor, its respective successors and assigns and (ii) inure,
together with the rights and remedies of the Mortgagee hereunder, to the
benefit of the Mortgagee and the other Secured Parties and each of their
respective successors, transferees and assigns. No other Persons (including,
without limitation, any other creditor of Mortgagor) shall have any interest
herein or any right or benefit with respect hereto. Without limiting the
generality of the foregoing clause (ii), any Holder of the Notes may assign
or otherwise transfer any indebtedness held by it that is secured by this
Mortgage to any other Person, and such other Person shall thereupon become
vested with all the benefits in respect thereof granted to such Holder, herein
or otherwise, subject however, to the provisions of the Indenture.


 


SECTION 14.8  Termination;
Release. The Mortgaged Property shall be released from the Lien of this
Mortgage in accordance with the provisions of Article 10 of the
Indenture.


 


SECTION 14.9  Modification
in Writing. No amendment, modification, supplement, termination or waiver
of or to any provision hereof, nor consent to any departure by the Mortgagor
therefrom, shall be effective unless the same shall be done in accordance with
the terms of the Indenture and unless in writing and signed by the Mortgagee
and Mortgagor. Any amendment, modification or supplement of or to any provision
hereof, any waiver of any provision hereof and any consent to any departure by
the Mortgagor from the terms of any provision hereof shall be effective only in
the specific instance and for the specific purpose for which made or given. Except
where notice is specifically required by this Mortgage or any other Collateral
Document, no notice to or demand on the Mortgagor in any case shall entitle the
Mortgagor to any other or further notice or demand in similar or other
circumstances.


 


SECTION 14.10  Notices.
Unless otherwise provided herein or in the Indenture, any notice or other
communication herein required or permitted to be given shall be given in the
manner and become effective as set forth in the Indenture, if to the Mortgagor,
addressed to it at the address of the Issuer set forth in the Indenture, and as
to the Mortgagee, addressed to it at its address set forth in the Indenture, or
in each case at such other address as shall be designated by such party in a
written notice to the other party complying as to delivery with the terms of
this Section 14.10.


 


SECTION 14.11  GOVERNING
LAW; SERVICE OF PROCESS; WAIVER OF JURY TRIAL. THIS MORTGAGE SHALL BE
GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS
OF THE STATE IN WHICH THE PREMISES ARE LOCATED, WITHOUT REGARD TO PRINCIPLES OF
CONFLICTS OF LAWS, EXCEPT TO THE EXTENT THAT THE VALIDITY OR PERFECTION OF THE
SECURITY INTEREST HEREUNDER, OR REMEDIES HEREUNDER, IN RESPECT OF ANY
PARTICULAR ITEM OR TYPE OF MORTGAGED PROPERTY ARE GOVERNED BY THE LAWS OF A
JURISDICTION OTHER THAN SUCH STATE. THE MORTGAGOR AGREES THAT SERVICE OF
PROCESS IN ANY PROCEEDING MAY BE EFFECTED BY MAILING A COPY THEREOF BY
REGISTERED OR CERTIFIED MAIL (OR ANY SUBSTANTIALLY SIMILAR FORM OF MAIL),
POSTAGE PREPAID, TO THE ISSUER AT ITS ADDRESS SET FORTH IN THE INDENTURE OR AT
SUCH OTHER ADDRESS OF WHICH THE MORTGAGEE SHALL HAVE BEEN NOTIFIED PURSUANT
THERETO. IF ANY AGENT APPOINTED BY THE MORTGAGOR REFUSES TO ACCEPT SERVICE, THE
MORTGAGOR HEREBY AGREES THAT SERVICE UPON IT BY MAIL SHALL CONSTITUTE
SUFFICIENT NOTICE. NOTHING HEREIN SHALL AFFECT THE RIGHT TO SERVE PROCESS IN
ANY OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT THE RIGHT OF THE MORTGAGEE TO
BRING


 


32

















 


PROCEEDINGS AGAINST THE MORTGAGOR IN THE COURTS OF ANY
OTHER JURISDICTION. THE MORTGAGOR HEREBY IRREVOCABLY WAIVES ALL RIGHT TO A
TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.


 


SECTION 14.12  Severability
of Provisions. Any provision hereof which is prohibited or unenforceable in
any jurisdiction shall, as to such jurisdiction, be ineffective to the extent
of such prohibition or unenforceability without invalidating the remaining
provisions hereof or affecting the validity or enforceability of such provision
in any other jurisdiction.


 


SECTION 14.13  Limitation
on Interest Payable. It is the intention of the parties to conform strictly
to the usury laws, whether state or Federal, that are applicable to the
transaction of which this Mortgage is a part. All agreements between the
Mortgagor and the Mortgagee, whether now existing or hereafter arising and
whether oral or written, are hereby expressly limited so that in no contingency
or event whatsoever shall the amount paid or agreed to be paid by the Mortgagor
for the use, forbearance or detention of the money to be loaned or advanced
under the Indenture or any related document or for the payment or performance
of any covenant or obligation contained herein or in the Indenture or any
related document exceed the maximum amount permissible under applicable Federal
or state usury laws. If under any circumstances whatsoever fulfillment of any
such provision, at the time performance of such provision shall be due, shall
involve exceeding the limit of validity prescribed by law, then the obligation
to be fulfilled shall be reduced to the limit of such validity. If under any
circumstances the Mortgagor shall have paid an amount deemed interest by
applicable law, which would exceed the highest lawful rate, such amount that
would be excessive interest under applicable usury laws shall be applied to the
reduction of the principal amount owing in respect of the Secured Obligations
and not to the payment of interest, or if such excessive interest exceeds the
unpaid balance of principal and any other amounts due hereunder, the excess
shall be refunded to the Mortgagor. All sums paid or agreed to be paid for the
use, forbearance or detention of the principal under any extension of credit by
the Mortgagee shall, to the extent permitted by applicable law, and to the
extent necessary to preclude exceeding the limit of validity prescribed by law,
be amortized, prorated, allocated and spread from the date hereof until payment
in full of the Secured Obligations so that the actual rate of interest on
account of such principal amounts is uniform throughout the term hereof.


 


SECTION 14.14  Business
Days. In the event any time period or any date provided in this Mortgage
ends or falls on a day other than a Business Day, then such time period shall
be deemed to end and such date shall be deemed to fall on the next succeeding
Business Day, and performance herein may be made on such Business Day,
with the same force and effect as if made on such other day.


 


SECTION 14.15  Relationship.
The relationship of the Mortgagee to the Mortgagor hereunder is strictly and
solely that of lender and borrower and mortgagor and mortgagee and nothing contained
in the Indenture, the Notes, this Mortgage or any other document or instrument
now existing and delivered in connection therewith or otherwise in connection
with the Secured Obligations is intended to create, or shall in any event or
under any circumstance be construed as creating a partnership, joint venture,
tenancy-in-common, joint tenancy or other relationship of any nature whatsoever
between the Mortgagee and the Mortgagor other than as lender and borrower and
mortgagor and mortgagee.


 


SECTION 14.16  Waiver
of Stay.


 


(i)                                     The
Mortgagor agrees that in the event that the Mortgagor or any property or assets
of the Mortgagor shall hereafter become the subject of a voluntary or
involuntary proceeding under the Bankruptcy Code or the Mortgagor shall otherwise
be a party to any Federal or state bankruptcy, insolvency, moratorium or
similar proceeding to which the provisions relating to the automatic stay under
Section 362 of the


 


33

















 


Bankruptcy Code or any similar provision in any such
law is applicable, then, in any such case, whether or not the Mortgagee has
commenced foreclosure proceedings under this Mortgage, the Mortgagee shall be
entitled to relief from any such automatic stay as it relates to the exercise
of any of the rights and remedies (including, without limitation, any
foreclosure proceedings) available to the Mortgagee as provided in this
Mortgage, in any other Collateral Document or any other document evidencing the
Secured Obligations.


 


(ii)                                  The
Mortgagee shall have the right to petition or move any court having
jurisdiction over any proceeding described in Section 14.16(i) hereof
for the purposes provided therein, and the Mortgagor agrees (i) not to
oppose any such petition or motion and (ii) at the Mortgagor’s sole cost
and expense, to assist and cooperate with the Mortgagee, as may be
requested by the Mortgagee from time to time, in obtaining any relief requested
by the Mortgagee, including, without limitation, by filing any such petitions,
supplemental petitions, requests for relief, documents, instruments or other
items from time to time requested by the Mortgagee or any such court.


 


SECTION 14.17  No
Credit for Payment of Taxes or Impositions. The Mortgagor shall not be
entitled to any credit against the principal, premium, if any, or interest
payable under the Indenture or the Notes, and the Mortgagor shall not be
entitled to any credit against any other sums which may become payable
under the terms thereof or hereof, by reason of the payment of any Charge on
the Mortgaged Property or any part thereof.


 


SECTION 14.18  No
Claims Against the Mortgagee. Nothing contained in this Mortgage shall
constitute any consent or request by the Mortgagee, express or implied, for the
performance of any labor or services or the furnishing of any materials or
other property in respect of the Premises or any part thereof, nor as
giving the Mortgagor any right, power or authority to contract for or permit
the performance of any labor or services or the furnishing of any materials or
other property in such fashion as would permit the making of any claim against
the Mortgagee in respect thereof or any claim that any Lien based on the
performance of such labor or services or the furnishing of any such materials
or other property is prior to the Lien hereof.


 


SECTION 14.19  Obligations
Absolute. All obligations of the Mortgagor hereunder shall be absolute and
unconditional irrespective of:


 


(i)                                     any
bankruptcy, insolvency, reorganization, arrangement, readjustment, composition,
liquidation or the like of the Mortgagor, the Issuer or any other Guarantor;


 


(ii)                                  any
lack of validity or enforceability of the Indenture, the Notes or any other
agreement or instrument relating thereto;


 


(iii)                               any
change in the time, manner or place of payment of, or in any other term of, all
or any of the Secured Obligations, or any other amendment or waiver of or any
consent to any departure from the Indenture, the Notes or any other agreement
or instrument relating thereto;


 


(iv)                              any
exchange, release or non-perfection of any other collateral, or any release or
amendment or waiver of or consent to any departure from any guarantee, for all
or any of the Secured Obligations;


 


(v)                                 any
exercise or non-exercise, or any waiver of any right, remedy, power or
privilege under or in respect hereof, the Indenture, the Notes or any agreement
or instrument relating thereto except as specifically set forth in a waiver
granted pursuant to the provisions of Section 14.9 hereof; or


 


34

















 


(vi)                              any
other circumstances which might otherwise constitute a defense available to, or
a discharge of, the Mortgagor.


 


SECTION 14.20  Last
Dollars Secured. This Mortgage secures only a portion of the Indebtedness
owing or which may become owing by the Mortgagor. The parties agree that
any payments or repayments of such Indebtedness by the Mortgagor shall be and
be deemed to be applied first to the portion of the Indebtedness that is not
secured hereby, it being the parties’ intent that the portion of the Indebtedness
last remaining unpaid shall be secured hereby.


 


[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]


 


35

















 


THUS
DONE AND PASSED, on the day, month and year first written above, effective as
of the Effective Date, in the State and Parish aforesaid, by the undersigned
Mortgagor in the presence of the undersigned Notary and the undersigned
competent witnesses, who hereunto sign their names with Mortgagor after reading
of the whole.


 


 


	
  WITNESSES:

  	
  MORTGAGOR:

  
	
   

  	
   

  
	
   

  	
  JALOU OF LAROSE,
  LLC,

  
	
   

  	
  a Louisiana
  Limited Liability Company

  
	
   

  	
   

  
	
   

  	
   

  
	
  /s/ Casey LeGrand

  	
   

  	
  By:

  	
   

  	
  /s/ Stan W.
  Guidroz

  	
   

  
	
  Printed Name:
  Casey LeGrand

  	
   

  	
   

  	
  Stan W. Guidroz

  
	
   

  	
   

  	
  Authorized
  Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
  /s/ Scott Zeringne

  	
   

  	
   

  
	
  Printed Name: Scott
  Zeringne

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ Audrey F. Searles

  	
   

  	
   

  
	
  Notary
  Public

  
									



 


36

















 


Schedule A


 


Legal Description


 


TWO CERTAIN TRACTS OR PARCELS OF LAND, together with
all of the rights, ways, privileges, servitudes, appurtenances and advantages
thereunto belonging or in anywise appertaining, situated in Section 104,
T-17-S, R-20-E, Lafourche Parish, Louisiana, in that subdivision known as
ALARIO-CHRISTEN SUBDIVISION, and being designated as LOT 1 AND LOT 2A on a map
prepared by Larry J. Piccola, PLS, dated November 9, 1999, a copy of which
is on file and of record under Entry #862647 of the official records of said
Parish, said lots having such size, shape and dimensions as are shown on said
map of record as aforesaid.


 

















 


Schedule B


 


Prior Liens


 


1.               Real
Estate Taxes, not yet due and payable


 


2.               A
12 foot servitude along the south sideline of the subject property, as shown on
the subdivision map


 


3.               Right
of Way Permit to Louisiana Power & Lighting, of record in Entry 175895
of the official records of Lafourche Parish, Louisiana


 


4.               Right
of Way to Entergy Louisiana, Inc., of record in Entry No. 866886 of
the official records of Lafourche Parish, Louisiana


 


5.               Right
of Way to Standard Oil Company of Louisiana of record in Entry No. 61122
of the official records of Lafourche Parish, Louisiana


 


6.               Zoning
and building ordinances and regulations, to the extent they constitute
Permitted Liens of the type described in clause (4) of the definition
thereof.


 

















 


Schedule C


 


Leases Affecting the Mortgaged Property


 


None


 

















 


Exhibit 1


 


FORM OF SUBORDINATION, NON-DISTURBANCE

AND ATTORNMENT AGREEMENT


 


THIS SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT
AGREEMENT (the “Agreement”) is made and entered into as of the
       day of
             ,
         by and between
                                                          ,
as trustee, having an office at
                              
(in such capacity, “Trustee”), and
                                           ,
having an office at                                                  
(“Tenant”).


 


R E C I T A L S:


 


A. Tenant is the tenant under a certain lease dated
                        ,
            
between
                                                                  ,
as landlord (“Landlord”), and Tenant, as tenant (as amended through the date
hereof, the “Lease”), pursuant to which Tenant leased a portion (the “Leased
Premises”) of the property known as
                                                        ,
located
at                                                        ,
as more particularly described in Schedule A attached hereto (the “Property”).


 


B. Landlord has or will grant a mortgage lien on and
security interest in the Property to Trustee (for its benefit and for the benefit
of the holders of certain senior secured notes and notes issued in exchange
therefor pursuant to that certain indenture dated as of
[               
     , 2002]) pursuant to one or more mortgages, deeds
of trust, deeds to secure debt or similar security instruments (collectively,
the “Security Instruments”).


 


C. Tenant has agreed to subordinate the Lease to the
Security Instruments and to the lien thereof and Trustee has agreed not to
disturb Tenant’s possessory rights in the Leased Premises under the Lease on
the terms and conditions hereinafter set forth.


 


A  G  R  E  E
M  E  N  T:


 


NOW, THEREFORE, the parties hereto mutually agree as
follows:


 


1. Subordination. Notwithstanding anything to
the contrary set forth in the Lease, the Lease and the leasehold estate created
thereby and all of Tenant’s rights thereunder are and shall at all times be
subject and subordinate in all respects to the Security Instruments and the
lien thereof, and to all rights of Trustee thereunder, and to any and all
advances to be made thereunder, and to all renewals, modifications,
consolidations, replacements and extensions thereof.


 


2. Nondisturbance. So long as Tenant complies with the
provisions of this Agreement, pays all rents and other charges as specified in
the Lease and is not otherwise in default (beyond applicable notice and cure
periods) of any of its obligations and covenants pursuant to the Lease, Trustee
agrees for itself and its successors in interest and for any other person
acquiring title to the Property through a foreclosure (an “Acquiring Party”),
that Tenant’s possession of the Leased Premises as described in the Lease will
not be disturbed during the term of the Lease by reason of a foreclosure. For
purposes of this Agreement, a “foreclosure” shall include (but not be limited
to) a sheriff’s or trustee’s sale under the power of sale contained in the
Security Instruments, the termination of any superior lease of the Property and
any other transfer of the Landlord’s interest in the Property under peril of
foreclosure, including, without limitation to the generality of the foregoing,
an assignment or sale in lieu of foreclosure.


 


1

















 


3. Attornment. Tenant agrees to attorn to, accept and recognize
any Acquiring Party as the landlord under the Lease pursuant to the provisions
expressly set forth therein for the then remaining balance of the term of the
Lease, and any extensions thereof as made pursuant to the Lease. The foregoing
provision shall be self-operative and shall not require the execution of any
further instrument or agreement by Tenant as a condition to its effectiveness.


 


4. No Liability. Notwithstanding anything to the contrary
contained herein or in the Lease, it is specifically understood and agreed that
neither the Trustee, any receiver nor any Acquiring Party shall be:


 


(a)  liable for any act, omission, negligence or default of any
prior landlord (including Landlord); or


 


(b)  liable for any failure of any prior landlord (including
Landlord) to construct any improvements or bound by any covenant to construct
any improvement either at the commencement of the term of the Lease or upon any
renewal or extension thereof or upon the addition of additional space pursuant
to any expansion right contained in the Lease; or


 


(c)  subject to any offsets, credits, claims or defenses which
Tenant might have against any prior landlord (including Landlord); or


 


(d)  bound by any rent or additional rent which is payable on a
monthly basis and which Tenant might have paid for more than one (1) month
in advance to any prior landlord (including Landlord) or by any security
deposit or other prepaid charge which Tenant might have paid in advance to any
prior landlord (including Landlord); or


 


(e)  liable to Tenant hereunder or under the terms of the Lease
beyond its interest in the Property; or


 


(f)  bound by any assignment, subletting, renewal, extension or
any other agreement or modification of the Lease made without the written
consent of Trustee; or


 


(g)  bound by any consensual or negotiated surrender, cancellation
or termination of the Lease, in whole or in part, agreed upon between Landlord
and Tenant unless effected unilaterally by Tenant pursuant to the express terms
of the Lease.


 


Notwithstanding the foregoing, Tenant reserves its
right to any and all claims or causes of action (i) against such prior
landlord for prior losses or damages and (ii) against the successor
landlord for all losses or damages arising from and after the date that such
successor landlord takes title to the Property.


 


5. Certain Acknowledgments and Agreements by Tenant. (a) Tenant
has notice that the Lease and the rents and all other sums due thereunder have
been assigned to Trustee as security for the notes secured by the Security
Instruments. In the event Trustee notifies Tenant of the occurrence of a
default under the Security Instruments and demands that Tenant pay its rents
and all other sums due or to become due under the Lease directly to Trustee,
Tenant shall honor such demand and pay its rent and all other sums due under
the Lease directly to Trustee or as otherwise authorized in writing by Trustee.
Landlord irrevocably authorizes Tenant to make the foregoing payments to
Trustee upon such notice and demand.


 


(b)  Tenant shall send a copy of any and all
notices or statements under the Lease to Trustee at the same time such notices
or statements are sent to Landlord.


 


2

















 


(c)  This Agreement satisfies any and all
conditions or requirements in the Lease relating to the granting of a
non-disturbance agreement.


 


6. Trustee to Receive Default Notices. Tenant shall notify
Trustee of any default by Landlord under the Lease which would entitle Tenant
to cancel the Lease, and agrees that, notwithstanding any provisions of the
Lease to the contrary, no notice of cancellation thereof shall be effective
unless Trustee shall have received notice of default giving rise to such
cancellation and shall have failed within sixty (60) days after receipt of such
notice to cure such default or, if such default cannot be cured within sixty
(60) days, shall have failed within sixty (60) days after receipt of such
notice to commence and thereafter diligently pursue any action necessary to
cure such default.


 


7. Estoppel. Tenant hereby certifies and represents to Trustee
that as of the date of this Agreement:


 


(a)  the Lease is in full force and effect;


 


(b)  all requirements for the commencement and validity of the
Lease have been satisfied and there are no unfulfilled conditions to Tenant’s
obligations under the Lease;


 


(c)  Tenant is not in default under the Lease and has not received
any uncured notice of any default by Tenant under the Lease; to the best of
Tenant’s knowledge, Landlord is not in default under the Lease; no act, event
or condition has occurred which with notice or the lapse of time, or both,
would constitute a default by Tenant or Landlord under the Lease; no claim by
Tenant of any nature exists against Landlord under the Lease; and all
obligations of Landlord have been fully performed;


 


(d)  there are no defenses, counterclaims or setoffs against rents
or charges due or which may become due under the Lease;


 


(e)  none of the rent which Tenant is required to pay under the
Lease has been prepaid, or will in the future be prepaid, more than one (1) month
in advance;


 


(f)  Tenant has no right or option contained in the Lease or in
any other document to purchase all or any portion of the Leased Premises;


 


(g)  the Lease has not been modified or amended and constitutes
the entire agreement between Landlord and Tenant relating to the Leased
Premises;


 


(h)  Tenant has not assigned, mortgaged, sublet, encumbered,
conveyed or otherwise transferred any or all of its interest under the Lease;
and


 


(i)  Tenant has full authority to enter into this Agreement, which
has been duly authorized by all necessary action.


 


8. Notices. All notices or other written communications
hereunder shall be deemed to have been properly given (i) upon delivery,
if delivered in person with receipt acknowledged by the recipient thereof, (ii) one
(1) Business Day (hereinafter defined) after having been deposited for
overnight delivery with any reputable overnight courier service, or (iii) three
(3) Business Days after having been deposited in any post office or mail
depository regularly maintained by the United States Postal Service and sent by
registered or certified mail, postage prepaid, return receipt requested,
addressed to the receiving party at its address set forth


 


3

















 


above or addressed as such party may from time to
time designate by written notice to the other parties. For purposes of this Section 8,
the term “Business Day” shall mean any day other than Saturday, Sunday or any
other day on which banks are required or authorized to close in New York, New
York. Either party by notice to the other may designate additional or
different addresses for subsequent notices or communications.


 


9. Successors. The obligations and rights of the parties pursuant
to this Agreement shall bind and inure to the benefit of the successors,
assigns, heirs and legal representatives of the respective parties; provided,
however, that in the event of the assignment or transfer of the interest
of Trustee, all obligations and liabilities of Trustee under this Agreement
shall terminate, and thereupon all such obligations and liabilities shall be
the responsibility of the party to whom Trustee’s interest is assigned or
transferred; and provided, further, that the interest of Tenant
under this Agreement may not be assigned or transferred without the prior
written consent of Trustee. In addition, Tenant acknowledges that all
references herein to Landlord shall mean the owner of the landlord’s interest
in the Lease, even if said owner shall be different from the Landlord named in
the Recitals.


 


10. Duplicate Original; Counterparts. This Agreement may be
executed in any number of duplicate originals and each duplicate original shall
be deemed to be an original. This Agreement may be executed in several
counterparts, each of which counterparts shall be deemed an original instrument
and all of which together shall constitute a single Agreement.


 


11. Limitation of Trustee’s Liability. (a)  Trustee
shall have no obligations nor incur any liability with respect to any
warranties of any nature whatsoever, whether pursuant to the Lease or
otherwise, including, without limitation, any warranties respecting use,
compliance with zoning, Landlord’s title, Landlord’s authority, habitability,
fitness for purpose or possession.


 


(b)  In the event that Trustee shall acquire
title to the Leased Premises or the Property, Trustee shall have no obligation,
nor incur any liability, beyond Trustee’s then equity interest, if any, in the
Leased Premises, and Tenant shall look exclusively to such equity interest of
Trustee, if any, in the Leased Premises for the payment and discharge of any
obligations imposed upon Trustee hereunder or under the Lease, and Trustee is
hereby released and relieved of any other obligations hereunder and under the
Lease.


 


12. Modification in Writing. This Agreement may not be
modified except by an agreement in writing signed by the parties hereto or
their respective successors in interest.


 


13. Lien of Security Instruments. Nothing contained in this
Agreement shall in any way impair or affect the lien created by the Security
Instruments or the provisions thereof.


 


14. Compliance with Lease. Tenant agrees that in the event there
is any inconsistency between the terms and provisions hereof and the terms and
provisions of the Lease, the terms and provisions hereof shall be controlling.


 


15. Governing Law; Severability. This Agreement shall be
governed by the laws of the State of
[           ]. If any
term of this Agreement or the application thereof to any person or
circumstances shall to any extent be invalid or unenforceable, the remainder of
this Agreement or the application of such terms to any person or circumstances
other than those as to which it is invalid or unenforceable shall not be
affected thereby, and each term of this Agreement shall be valid and
enforceable to the fullest extent permitted by law.


 


16. Further Actions. Tenant agrees at its own expense to execute
and deliver, at any time and from time to time upon the request of Trustee or
any Acquiring Party, such documents and instruments (in recordable


 


4

















 


form, if requested) as may be necessary or
appropriate, in the opinion of Trustee or any Acquiring Party, to fully implement
or to further evidence the understandings and agreements contained in this
Agreement. Moreover, Tenant hereby irrevocably appoints and constitutes Trustee
or any Acquiring Party as its true and lawful attorney-in-fact to execute and
deliver any such documents or instruments which may be necessary or
appropriate, in the opinion of Trustee or any Acquiring Party, to implement or
further evidence such understandings and agreements and which Tenant, after
thirty (30) days’ notice from Trustee or any Acquiring Party, has failed to
execute and deliver.


 


IN WITNESS WHEREOF, Trustee and Tenant have duly
executed this Agreement as of the date first above written.


 


____________________________________________, 

as Trustee


 


 


	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


____________________________________________, 

as Tenant


 


 


	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


The undersigned, as the Landlord named in the
Recitals, having duly executed this Agreement as of the date first written
above, and as mortgagor, pledgor, assignor or debtor under the Security Instruments,
hereby accepts and agrees for itself and its successors and assigns, (i) to
be bound by the provisions of Section 5 hereof, (ii) that nothing
contained in the foregoing Agreement (x) shall in any way be deemed to
constitute a waiver by Trustee of any of its rights or remedies under the
Security Instruments or (y) shall in any way be deemed to release Landlord
from its obligations to comply with the terms, provisions, conditions,
covenants and agreements set forth in the Security Instruments and (iii) that
the provisions of the Security Instruments remain in full force and effect and
must be complied with by Landlord.


 


_______________________________, a

_______________________________


 


 


	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


5

















 


ACKNOWLEDGMENT


 


State of                        )


)  ss.:


County of                    )


 

















 


SCHEDULE A to EXHIBIT 1


 


Description of Real Property