[LOUISIANA]


 




Exhibit 45.4(I)





 


MORTGAGE, ASSIGNMENT OF LEASES AND RENTS,

SECURITY AGREEMENT AND FIXTURE FILING


 


BY


 


FUEL STOP 36, INC.


 


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:


 


Calcasieu 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

  	
  8

  
	
  SECTION 1.3

  	
  Resolution of Drafting Ambiguities

  	
  8

  
	
   

  	
   

  	
   

  
	
  ARTICLE II

  
	
   

  	
   

  	
   

  
	
  GRANTS AND SECURED
  OBLIGATIONS

  
	
   

  	
   

  	
   

  
	
  SECTION 2.1

  	
  Grant of Mortgaged Property

  	
  8

  
	
  SECTION 2.2

  	
  Assignment of Leases and Rents

  	
  9

  
	
  SECTION 2.3

  	
  Secured Obligations

  	
  10

  
	
  SECTION 2.4

  	
  Future Advances

  	
  10

  
	
  SECTION 2.5

  	
  No Release

  	
  10

  
	
   

  	
   

  	
   

  
	
  ARTICLE III

  
	
   

  	
   

  	
   

  
	
  REPRESENTATIONS AND
  WARRANTIES OF MORTGAGOR

  
	
   

  	
   

  	
   

  
	
  SECTION 3.1

  	
  Authority and Validity

  	
  11

  
	
  SECTION 3.2

  	
  Warranty of Title

  	
  11

  
	
  SECTION 3.3

  	
  Condition of Mortgaged Property

  	
  12

  
	
  SECTION 3.4

  	
  Leases

  	
  13

  
	
  SECTION 3.5

  	
  Insurance

  	
  14

  
	
  SECTION 3.6

  	
  Charges

  	
  14

  
	
  SECTION 3.7

  	
  Environmental

  	
  14

  
	
  SECTION 3.8

  	
  No Conflicts, Consents, etc

  	
  15

  
	
  SECTION 3.9

  	
  Benefit to the Mortgagor

  	
  15

  



 


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  ARTICLE IV

  
	
   

  	
   

  	
   

  
	
  CERTAIN COVENANTS OF
  MORTGAGOR

  
	
   

  	
   

  	
   

  
	
  SECTION 4.1

  	
  Preservation of Corporate Existence

  	
  15

  
	
  SECTION 4.2

  	
  Title

  	
  15

  
	
  SECTION 4.3

  	
  Maintenance and Use of Mortgaged Property;
  Alterations

  	
  16

  
	
  SECTION 4.4

  	
  Notices Regarding Certain Defaults

  	
  17

  
	
  SECTION 4.5

  	
  Access to Mortgaged Property, Books and Records;
  Other Information

  	
  17

  
	
  SECTION 4.6

  	
  Limitation on Liens; Transfer Restrictions

  	
  17

  
	
  SECTION 4.7

  	
  Environmental

  	
  18

  
	
  SECTION 4.8

  	
  Estoppel Certificates

  	
  19

  
	
   

  	
   

  	
   

  
	
  ARTICLE V

  
	
   

  	
   

  	
   

  
	
  LEASES

  
	
   

  	
   

  	
   

  
	
  SECTION 5.1

  	
  Mortgagor’s Affirmative Covenants with Respect to
  Leases

  	
  19

  
	
  SECTION 5.2

  	
  Mortgagor’s Negative Covenants with Respect to Leases

  	
  20

  
	
  SECTION 5.3

  	
  Additional Requirements with Respect to New Leases

  	
  20

  
	
   

  	
   

  	
   

  
	
  ARTICLE VI

  
	
   

  	
   

  	
   

  
	
  CONCERNING ASSIGNMENT
  OF LEASES AND RENTS

  
	
   

  	
   

  	
   

  
	
  SECTION 6.1

  	
  Present Assignment; License to the Mortgagor

  	
  21

  
	
  SECTION 6.2

  	
  Collection of Rents by the Mortgagee

  	
  21

  
	
  SECTION 6.3

  	
  No Release

  	
  21

  
	
  SECTION 6.4

  	
  Irrevocable Interest

  	
  22

  
	
  SECTION 6.5

  	
  Amendment to Leases

  	
  22

  
	
   

  	
   

  	
   

  
	
  ARTICLE VII

  
	
   

  	
   

  	
   

  
	
  TAXES AND CERTAIN
  STATUTORY LIENS

  
	
   

  	
   

  	
   

  
	
  SECTION 7.1

  	
  Payment of Charges

  	
  22

  
	
  SECTION 7.2

  	
  Escrow of Taxes

  	
  22

  
	
  SECTION 7.3

  	
  Certain Statutory Liens

  	
  22

  
	
  SECTION 7.4

  	
  Stamp and Other Taxes

  	
  22

  
	
  SECTION 7.5

  	
  Certain Tax Law Changes

  	
  23

  
	
  SECTION 7.6

  	
  Proceeds of Tax Claim

  	
  23

  



 


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  ARTICLE VIII

  
	
   

  	
   

  	
   

  
	
  INSURANCE

  
	
   

  	
   

  	
   

  
	
  SECTION 8.1

  	
  Required Insurance Policies and Coverages

  	
  23

  
	
  SECTION 8.2

  	
  Delivery After Foreclosure

  	
  23

  
	
   

  	
   

  	
   

  
	
  ARTICLE IX

  
	
   

  	
   

  	
   

  
	
  CONTESTING OF PAYMENTS

  
	
   

  	
   

  	
   

  
	
  SECTION 9.1

  	
  Contesting of Taxes and Certain Statutory Liens

  	
  23

  
	
  SECTION 9.2

  	
  Contesting of Insurance

  	
  24

  
	
   

  	
   

  	
   

  
	
  ARTICLE X

  
	
   

  	
   

  	
   

  
	
  DESTRUCTION,
  CONDEMNATION AND RESTORATION

  
	
   

  	
   

  	
   

  
	
  SECTION 10.1

  	
  Destruction

  	
  24

  
	
  SECTION 10.2

  	
  Condemnation

  	
  24

  
	
   

  	
   

  	
   

  
	
  ARTICLE XI

  
	
   

  	
   

  	
   

  
	
  EVENTS OF DEFAULT AND
  REMEDIES

  
	
   

  	
   

  	
   

  
	
  SECTION 11.1

  	
  Events of Default

  	
  25

  
	
  SECTION 11.2

  	
  Remedies in Case of an Event of Default

  	
  25

  
	
  SECTION 11.3

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

  	
  25

  
	
  SECTION 11.4

  	
  Additional Remedies in Case of an Event of Default

  	
  27

  
	
  SECTION 11.5

  	
  Legal Proceedings After an Event of Default

  	
  27

  
	
  SECTION 11.6

  	
  Remedies Not Exclusive

  	
  28

  
	
  SECTION 11.7

  	
  Special Louisiana Provisions

  	
  28

  
	
   

  	
   

  	
   

  
	
  ARTICLE XII

  
	
   

  	
   

  	
   

  
	
  SECURITY AGREEMENT AND
  FIXTURE FILING

  
	
   

  	
   

  	
   

  
	
  SECTION 12.1

  	
  Security Agreement

  	
  30

  
	
  SECTION 12.2

  	
  Fixture Filing

  	
  31

  



 


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  ARTICLE XIII

  
	
   

  	
   

  	
   

  
	
  FURTHER ASSURANCES

  
	
   

  	
   

  	
   

  
	
  SECTION 13.1

  	
  Recording Documentation To Assure Security

  	
  31

  
	
  SECTION 13.2

  	
  Further Acts

  	
  32

  
	
  SECTION 13.3

  	
  Additional Security

  	
  32

  
	
   

  	
   

  	
   

  
	
  ARTICLE XIV

  
	
   

  	
   

  	
   

  
	
  MISCELLANEOUS

  
	
   

  	
   

  	
   

  
	
  SECTION 14.1

  	
  Covenants To Run with the Land

  	
  32

  
	
  SECTION 14.2

  	
  No Merger

  	
  33

  
	
  SECTION 14.3

  	
  Concerning Mortgagee

  	
  33

  
	
  SECTION 14.4

  	
  Mortgagee May Perform; Mortgagee Appointed
  Attorney-in-Fact

  	
  33

  
	
  SECTION 14.5

  	
  Expenses

  	
  34

  
	
  SECTION 14.6

  	
  Indemnity

  	
  34

  
	
  SECTION 14.7

  	
  Continuing Security Interest; Assignment

  	
  35

  
	
  SECTION 14.8

  	
  Termination; Release

  	
  35

  
	
  SECTION 14.9

  	
  Modification in Writing

  	
  35

  
	
  SECTION 14.10

  	
  Notices

  	
  36

  
	
  SECTION 14.11

  	
  GOVERNING LAW; SERVICE OF PROCESS; WAIVER OF JURY
  TRIAL

  	
  36

  
	
  SECTION 14.12

  	
  Severability of Provisions

  	
  36

  
	
  SECTION 14.13

  	
  Limitation on Interest Payable

  	
  36

  
	
  SECTION 14.14

  	
  Business Days

  	
  37

  
	
  SECTION 14.15

  	
  Relationship

  	
  37

  
	
  SECTION 14.16

  	
  Waiver of Stay

  	
  37

  
	
  SECTION 14.17

  	
  No Credit for Payment of Taxes or Impositions

  	
  37

  
	
  SECTION 14.18

  	
  No Claims Against the Mortgagee

  	
  38

  
	
  SECTION 14.19

  	
  Obligations Absolute

  	
  38

  
	
  SECTION 14.20

  	
  Last Dollars Secured

  	
  38

  



 


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 FUEL STOP 36, INC., a Louisiana corporation, having an
office at 108 N. Highway 397, Lake Charles, Louisiana 70616, 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).


 


1

















 


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).


 


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


 


2

















 


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, 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.


 


3

















 


“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, 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.


 


4

















 


“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.


 


“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.


 


5

















 


“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 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


 


6

















 


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.


 


“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


 


7

















 


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.


 


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;


 


8

















 


(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 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;


 


9

















 


(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.


 


10

















 


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.


 


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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 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


 


12

















 


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.


 


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;


 


13

















 


(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 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


 


14

















 


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.


 


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


 


15

















 


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 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


 


16

















 


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.


 


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


 


17

















 


(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 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


 


18

















 


(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;


 


(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.


 


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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 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.


 


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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


 


22

















 


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.


 


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


 


23

















 


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 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.


 


24

















 


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 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


 


25

















 


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 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.


 


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(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).


 


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.


 


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(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 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.


 


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(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 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.


 


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(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”).


 


(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


 


30

















 


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:


 


Fuel
Stop 36, LLC


108 N.
Highway 397


Lake
Charles, Louisiana 70616


 


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


 


31

















 


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 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


 


32

















 


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.


 


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


 


33

















 


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 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


 


34

















 


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.


 


(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.


 


35

















 


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 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


 


36

















 


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 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


 


37

















 


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


 


(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]


 


38

















 


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:

  
	
   

  	
   

  
	
   

  	
  FUEL STOP
  36, INC.

  
	
   

  	
  a Louisiana
  Corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
  /s/ Casey LeGrand

  	
   

  	
  By:

  	
     /s/
  Stan W. Guidroz

  	
   

  
	
  Printed Name:
  Casey LeGrand

  	
   

  	
  Stan W. Guidroz

  
	
   

  	
   

  	
  Authorized
  Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
  /s/ Scott T. Zeringne

  	
   

  	
   

  
	
  Printed Name:
  Scott T. Zeringne

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ Audrey F. Searles

  	
   

  
	
   

  	
  Notary
  Public

  	
   

  
							



 


39

















 


Schedule A


 


Legal Description


 


TRACT
A


 


Commencing
at the intersection of the northerly right of way line of the Southern
Pacific Railroad and the westerly right of way line of LA Highway 397 being the
Southeastern corner of Tract A and also the point of beginning; thence run
north 88 degrees 58 minutes 45 seconds West along the northerly right of way
line of Southern Pacific Railroad a distance of 199.60 feet to a point and
corner; thence run North 01 degrees 01 minutes 15 seconds East a distance of
645.00 feet to a point and corner; thence run South 88 degrees 58 minutes 45
seconds East a distance of 35.20 feet to a point and corner; thence run South
00 degrees 17 minutes 15 seconds West a distance of 119.40 feet to a point and
corner; thence run South 22 degrees 06 minutes 00 seconds East a distance of
129.50 feet to a point and corner; thence run South 59 degrees 11 minutes 48
seconds East a distance of 123.99 feet to a point and corner; thence run South
00 degrees 17 minutes 15 seconds West a distance of 344.94 feet back to the
point of beginning; containing within said bounds 2.031 acres of 88,740 square
feet more or less all shown hereon.


 


TRACT
B-2


 


Commence
at the intersection of the West right of way line of LA highway 397 and
the North right of way line of the Southern Pacific Railroad thence along the
said North right of way line 88 degrees 58 minutes 45 seconds West a distance
of 199.60 feet to the point of beginning; thence from the point of beginning
continue along the North right of way line of the Southern Pacific Railroad 88
degrees 58 minutes 45 seconds West a distance of 399.30 feet to a point and
corner; thence North 00 degrees 58 minutes 21 seconds East a distance of 260.00
feet to a point and corner; thence South 89 degrees 01 minutes 39 seconds East
a distance of 10.00 feet to a point and corner; thence North 00 degrees 58
minutes 21 seconds East a distance of 43.77 feet to a point and corner; thence
South 88 degrees 58 minutes 45 seconds West a distance of 237.25 feet to a
point and corner; thence North 01 degrees 01 minutes 15 seconds East a distance
of 341.23 feet to the South right of way line of Wright Road and corner; thence
along said South right of way line 88 degrees 58 minutes 45 seconds East a
distance of 152.30 feet to a point and corner; thence leaving said South right
of way line 01 degrees 01 minutes 15 seconds West a distance of 645.00 feet to
the point of beginning containing within said bounds 3.969 acres or 172,686
square feet more or less being more fully shown herein.


 


40

















 


Schedule B


 


Prior Liens


 


1.               Real
Estate Taxes, not yet due and payable


 


2.               Taxes
for 2005 and subsequent years, none of which are due and payable


 


3.               Right
of way in favor of Gulf States Utilities, dated January 23, 1980, recorded
in Conveyance Book 1548, Page 224


 


4.               Right
of way in favor of Gulf States Utilities Company, dated March 11, 1980,
recorded in Conveyance Book, 1551, Page 737


 


5.               Right
of way in favor of Gulf States Utilities, dated February 15, 1961, recorded
in Conveyance Book 771, Page 476, as modified by that Partial Release of
right of way dated October 4, 1989, recorded in Conveyance Book 2156, Page 77


 


6.               Right
of way in favor of Gulf States Utilities, dated August 11, 1969, recorded
in Conveyance Book 1089, Page 318


 


7.               Right
of way in favor of South Central Bell Telephone Co., dated November 22,
1977, recorded in Conveyance Book 1433, Page 741


 


8.               Right
of way in favor of Waterworks District No. 5, dated December 7, 1978,
recorded in Conveyance Book 1479, Page 614


 


9.               Right
of way in favor of Transcontinental Gas Pipeline Corporation, dated June 8,
1979, recorded in Conveyance Book 1508, Page 575


 


10.         Right
of way in favor of Transcontinental Gas Pipeline Corporation, dated June 8,
1979, recorded in Conveyance Book 1508, Page 580


 


11.         Right
of way in favor of Gulf States Utilities, dated January 4, 1990, recorded
in Conveyance Book 2175, Page 80


 


12.         Right
of way in favor of Sewer District No. 11, dated February 14, 1989,
recorded in Conveyance Book 2269, Page 30


 


13.         Right
of way in favor of Entex, dated January 22, 1992, recorded in Conveyance
Book 2285, Page 476


 


14.         Right
of way in favor of Entex, dated February 11, 1992, recorded in Conveyance
Book 2288, Page 110


 


41

















 


15.         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


 


42

















 


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.


 


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.


 


2

















 


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.


 


(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;


 


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(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 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.


 


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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 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.


 


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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:

  
					



 

















 


ACKNOWLEDGMENT


 


State of                   )


)  ss.:


County of               )


 

















 


SCHEDULE A to EXHIBIT 1


 


Description of Real Property