**EXHIBIT 4.47**

 

[LOUISIANA]

 

 

MORTGAGE, ASSIGNMENT OF LEASES AND RENTS,SECURITY AGREEMENT AND FIXTURE FILING

 

BY

 

JALOU BREAUX BRIDGE, LLC

 

Mortgagor,

 

TO

 

WELLS FARGO BANK, NATIONAL ASSOCIATION,

 

as Trustee,

 

Mortgagee

 

Securing Principal Indebtedness of **$148,000,000**

 

Dated as of March 2, 2005

 

 

Relating to Premises located in:

 

St. Martin Parish, Louisiana

 

 

 

 

After recording, please return to:

 

Milbank, Tweed, Hadley & McCloy, LLP

601 South Figueroa Street, 30th Floor

Los Angeles, California 90017

Attn: Matthew S. Meza, Esq.

 

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TABLE OF CONTENTS

 
|                                         |   |                                |   |
|----------------------------------------------|--------|-------------------------------------|--------|
|                                         |   |                                |   |
| PREAMBLE                                     |   |                                |   |
|                                         |   |                                |   |
| RECITALS                                     |   |                                |   |
|                                         |   |                                |   |
| AGREEMENT                                    |   |                                |   |
|                                         |   |                                |   |
| ARTICLE I                                    |   |
|                                         |   |                                |   |
| DEFINITIONS  AND INTERPRETATION              |   |
|                                         |   |                                |   |
| SECTION 1.1                                  |   | Definitions                         |   |
| SECTION 1.2                                  |   | Interpretation                      |   |
| SECTION 1.3                                  |   | Resolution of  Drafting Ambiguities |   |
|                                         |   |                                |   |
| ARTICLE II                                   |   |
|                                         |   |                                |   |
| GRANTS AND SECURED  OBLIGATIONS              |   |
|                                         |   |                                |   |
| SECTION 2.1                                  |   | Grant of Mortgaged  Property        |   |
| SECTION 2.2                                  |   | Assignment of  Leases and Rents     |   |
| SECTION 2.3                                  |   | Secured  Obligations                |   |
| SECTION 2.4                                  |   | Future  Advances                    |   |
| SECTION 2.5                                  |   | No Release                          |   |
|                                         |   |                                |   |
| ARTICLE III                                  |   |
|                                         |   |                                |   |
| REPRESENTATIONS  AND WARRANTIES OF MORTGAGOR |   |
|                                         |   |                                |   |
| SECTION  3.1                                 |   | Authority  and Validity             |   |
| SECTION 3.2                                  |   | Warranty of  Title                  |   |
| SECTION 3.3                                  |   | Condition  of Mortgaged Property    |   |
| SECTION 3.4                                  |   | Leases                              |   |
| SECTION 3.5                                  |   | Insurance                           |   |
| SECTION 3.6                                  |   | Charges                             |   |
| SECTION 3.7                                  |   | Environmental                       |   |
| SECTION 3.8                                  |   | No Conflicts,  Consents, etc        |   |
| SECTION 3.9                                  |   | Benefit to the  Mortgagor           |   |

 

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| ARTICLE IV                                 |   |
|--------------------------------------------|--------|
|                                       |   |   |   |
| CERTAIN COVENANTS OF  MORTGAGOR            |   |
|                                       |   |   |   |
| SECTION 4.1                                |   | Preservation of  Corporate Existence |   |
| SECTION 4.2                                |   | Title |   |
| SECTION 4.3                                |   | Maintenance and Use  of Mortgaged Property; Alterations |   |
| SECTION 4.4                                |   | Notices  Regarding Certain Defaults |   |
| SECTION 4.5                                |   | Access to Mortgaged  Property, Books and Records; Other Information |   |
| SECTION  4.6                               |   | Limitation  on Liens; Transfer Restrictions |   |
| SECTION 4.7                                |   | Environmental |   |
| SECTION 4.8                                |   | Estoppel  Certificates |   |
|                                       |   |   |   |
| ARTICLE V                                  |   |
|                                       |   |   |   |
| LEASES                                     |   |
|                                       |   |   |   |
| SECTION 5.1                                |   | Mortgagor’s  Affirmative Covenants with Respect to Leases |   |
| SECTION  5.2                               |   | Mortgagor’s  Negative Covenants with Respect to Leases |   |
| SECTION  5.3                               |   | Additional  Requirements with Respect to New Leases |   |
|                                       |   |   |   |
| ARTICLE VI                                 |   |
|                                       |   |   |   |
| CONCERNING  ASSIGNMENT OF LEASES AND RENTS |   |
|                                       |   |   |   |
| SECTION  6.1                               |   | Present  Assignment; License to the Mortgagor |   |
| SECTION  6.2                               |   | Collection  of Rents by the Mortgagee |   |
| SECTION 6.3                                |   | No Release |   |
| SECTION 6.4                                |   | Irrevocable  Interest |   |
| SECTION 6.5                                |   | Amendment to  Leases |   |
|                                       |   |   |   |
| ARTICLE VII                                |   |
|                                       |   |   |   |
| TAXES  AND CERTAIN STATUTORY LIENS         |   |
|                                       |   |   |   |
| SECTION 7.1                                |   | Payment of  Charges |   |
| SECTION 7.2                                |   | Escrow of Taxes |   |
| SECTION 7.3                                |   | Certain Statutory  Liens |   |
| SECTION 7.4                                |   | Stamp and Other Taxes |   |
| SECTION 7.5                                |   | Certain Tax Law  Changes |   |
| SECTION 7.6                                |   | Proceeds of Tax  Claim |   |

 

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| ARTICLE VIII                               |   |
|--------------------------------------------|--------|
|                                       |   |   |   |
| INSURANCE                                  |   |
|                                       |   |   |   |
| SECTION 8.1                                |   | Required  Insurance Policies and Coverages |   |
| SECTION 8.2                                |   | Delivery  After Foreclosure |   |
|                                       |   |   |   |
| ARTICLE IX                                 |   |
|                                       |   |   |   |
| CONTESTING OF  PAYMENTS                    |   |
|                                       |   |   |   |
| SECTION 9.1                                |   | Contesting of Taxes and  Certain Statutory Liens |   |
| SECTION 9.2                                |   | Contesting of Insurance |   |
|                                       |   |   |   |
| ARTICLE X                                  |   |
|                                       |   |   |   |
| DESTRUCTION, CONDEMNATION AND  RESTORATION |   |
|                                       |   |   |   |
| SECTION 10.1                               |   | Destruction |   |
| SECTION 10.2                               |   | Condemnation |   |
|                                       |   |   |   |
| ARTICLE XI                                 |   |
|                                       |   |   |   |
| EVENTS OF DEFAULT AND REMEDIES             |   |
|                                       |   |   |   |
| SECTION  11.1                              |   | Events  of Default |   |
| SECTION  11.2                              |   | Remedies  in Case of an Event of Default |   |
| SECTION 11.3                               |   | Sale of Mortgaged Property if  Event of Default Occurs; Proceeds of Sale |   |
| SECTION 11.4                               |   | Additional Remedies in Case of an Event  of Default |   |
| SECTION 11.5                               |   | Legal Proceedings After an Event of  Default |   |
| SECTION  11.6                              |   | Remedies  Not Exclusive |   |
| SECTION  11.7                              |   | Special  Louisiana Provisions |   |
|                                       |   |   |   |
| ARTICLE  XII                               |   |
|                                       |   |   |   |
| SECURITY AGREEMENT AND FIXTURE  FILING     |   |
|                                       |   |   |   |
| SECTION  12.1                              |   | Security  Agreement |   |
| SECTION 12.2                               |   | Fixture Filing |   |
|                                       |   |   |   |
| ARTICLE  XIII                              |   |
|                                       |   |   |   |
| FURTHER  ASSURANCES                        |   |
|                                       |   |   |   |
| SECTION 13.1                               |   | Recording Documentation To Assure  Security |   |

 

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| SECTION  13.2                 |   | Further  Acts                                                    |   |
|-------------------------------|--------|------------------------------------------------------------------|--------|
| SECTION 13.3                  |   | Additional Security                                              |   |
|                          |   |                                                             |   |
| ARTICLE  XIV                  |   |
|                          |   |                                                             |   |
| MISCELLANEOUS                 |   |
|                          |   |                                                             |   |
| SECTION 14.1                  |   | Covenants To Run with the Land                                   |   |
| SECTION  14.2                 |   | No  Merger                                                       |   |
| SECTION  14.3                 |   | Concerning  Mortgagee                                            |   |
| SECTION 14.4                  |   | Mortgagee May Perform; Mortgagee  Appointed Attorney-in-Fact     |   |
| SECTION  14.5                 |   | Expenses                                                         |   |
| SECTION  14.6                 |   | Indemnity                                                        |   |
| SECTION 14.7                  |   | Continuing Security Interest; Assignment                         |   |
| SECTION 14.8                  |   | Termination; Release                                             |   |
| SECTION 14.9                  |   | Modification in Writing                                          |   |
| SECTION  14.10                |   | Notices                                                          |   |
| SECTION 14.11                 |   | GOVERNING LAW; SERVICE OF PROCESS;  WAIVER OF JURY TRIAL         |   |
| SECTION  14.12                |   | Severability  of Provisions                                      |   |
| SECTION 14.13                 |   | Limitation on Interest Payable                                   |   |
| SECTION 14.14                 |   | Business Days                                                    |   |
| SECTION 14.15                 |   | Relationship                                                     |   |
| SECTION 14.16                 |   | Waiver of Stay                                                   |   |
| SECTION 14.17                 |   | No Credit for Payment of Taxes or  Impositions                   |   |
| SECTION  14.18                |   | No  Claims Against the Mortgagee                                 |   |
| SECTION  14.19                |   | Obligations  Absolute                                            |   |
| SECTION  14.20                |   | Last  Dollars Secured                                            |   |
|                          |   |                                                             |   |
| 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

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MORTGAGE, ASSIGNMENT OF LEASES AND RENTS, SECURITYAGREEMENT AND FIXTURE FILING

 

MORTGAGE, ASSIGNMENT OFLEASES AND RENTS, SECURITY AGREEMENT AND FIXTURE FILING (as amended, amendedand restated, supplemented or otherwise modified from time to time, the “Mortgage”),dated as of March 2, 2005, made by JALOU BREAUX BRIDGE, LLC, a Louisianalimited liability company having an office at 1869 Mills Highway, BreauxBridge, Louisiana 70517, as mortgagor, assignor and debtor (in such capacitiesand together with any successors in such capacities, the “Mortgagor”),in favor of WELLS FARGO BANK, NATIONAL ASSOCIATION, a national bankingassociation having an office at  213Court Street, Suite 703, Middletown, CT 06457, in its capacity as trusteepursuant to the Indenture (as hereinafter defined), as mortgagee, assignee andsecured party (in such capacities and together with any successors in suchcapacities, the “Mortgagee”).

 

RECITALS :

 

###### A.  Gameco, Inc.n/k/a Jacobs Entertainment, Inc. (the “Issuer”), certain of itsSubsidiaries (as hereinafter defined), the Mortgagor and the Mortgagee have, inconnection with the execution and delivery of this Mortgage, entered into thatcertain Indenture, dated as of February 8, 2002, as supplemented by the FirstSupplemental Indenture, dated as of February 22, 2002, the Second SupplementalIndenture, dated as of June 14, 2002, the Third Supplemental Indenture, datedas of June 4, 2003, the Fourth Supplemental Indenture, dated as of the datehereof, and the Fifth Supplemental Indenture, dated as of the date hereof(collectively, as amended, amended and restated, supplemented, or otherwisemodified from time to time, the “Indenture”), pursuant to which theIssuer has issued, from time to time, its 117/8% SeniorSecured Notes due 2009 (the “Senior Secured Notes”) in the aggregateprincipal amount of $148,000,000.  It iscontemplated 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 SecuredNotes, the “Notes”), in each case, pursuant to the provisions of theIndenture.

######  

###### B.  The Issuerowns, directly or through its Subsidiaries, all of the issued and outstandingshares of the Mortgagor.

######  

###### C.  TheMortgagor has, pursuant to the Indenture, among other things, unconditionallyguaranteed (the “Guarantee”) the obligations of the Issuer under theIndenture and the Notes.

######  

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

######  

###### E.  The Mortgagoris or will be the legal owner of the Mortgaged Property (as hereinafterdefined).

######  

###### F.  ThisMortgage is given by the Mortgagor in favor of the Mortgagee for its benefitand for the benefit of the Holders of the Notes (collectively, the “SecuredParties”) to secure the payment and performance of all of the SecuredObligations (as hereinafter defined).

######  

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AGREEMENT:

 

NOW THEREFORE, in consideration of the foregoingpremises and other good and valuable consideration, the receipt and sufficiencyof which are hereby acknowledged, the Mortgagor hereby covenants and agreeswith the Mortgagee as follows:

 

# ARTICLE I

#  

# DEFINITIONSAND INTERPRETATION

#  

## SECTION 1.1  Definitions.  Capitalized terms used but not otherwisedefined herein shall have the meanings assigned to such terms in theIndenture.  The following terms used inthis Mortgage shall have the following meanings:

##  

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

 

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

 

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

 

“Business Day” shall have the meaning assignedto 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 orLiens imposed upon or assessed against, and all claims (including, withoutlimitation, landlords’, carriers’, mechanics’, workmen’s, repairmen’s, laborers’,materialmen’s, suppliers’ and warehousemen’s Liens and other claims arising byoperation of law) against, all or any portion of the Mortgaged Property.

 

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

 

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

 

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

 

“Contracts” shall mean, collectively, any andall right, title and interest of the Mortgagor in and to any and all contracts,instruments, documents and other general intangibles, whether now existing orhereafter arising or entered into, relating to the Mortgaged Property(including, without limitation, all reciprocal easements and/or operatingagreements, covenants, conditions and restrictions and similar agreementsaffecting all or any portion of the Mortgaged Property and any and all presentor future options to sell or lease the Mortgaged Property or any interesttherein) and all reserves, deferred payments, deposits or other security oradvance payments (including, without limitation, those made by or on behalf ofthe Mortgagor to others with respect to (i) utility service regarding theMortgaged Property, (ii) cleaning, maintenance,

 

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repair or similar services regarding the MortgagedProperty, (iii) refuse removal or sewage service regarding the MortgagedProperty, (iv) rentals of equipment, if any, used in the operation by or onbehalf of Mortgagor regarding the Mortgaged Property, and/or (v) parking orsimilar services or rights regarding the Mortgaged Property), refunds, liens,security interests, guarantees, remedies and claims of every kind, nature orcharacter relating thereto.

 

“Default Rate” shall mean the rate per annumequal 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 applicablefederal, state, local or municipal statute, law, rule, regulation, ordinance,code, policy or rule of common law and any judicial or administrativeinterpretation thereof, including any judicial or administrative order, consentdecree or judgment binding on the Mortgagor, relating to pollution orprotection 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 meaningassigned to such term in the Indenture.

 

“Fixture” shall mean all machinery, apparatus,equipment, fittings, fixtures, improvements and articles of personal propertyof every kind, description and nature whatsoever now or hereafter attached oraffixed to the Land or any other Improvement or used in connection with the useand enjoyment of the Land or any other Improvement or the maintenance orpreservation thereof, which by the nature of their location thereon or attachmentthereto 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 andfacilities, pipes, fittings and other items of every kind and description nowor hereafter attached to or located on the Land which by the nature of theirlocation thereon or attachment thereto are real property under applicable law,HVAC equipment, boilers, electronic data processing, telecommunications orcomputer equipment, refrigeration, electronic monitoring, water or lightingsystems, power, sanitation, waste removal, elevators, maintenance or othersystems or equipment and all additions thereto and betterments, renewals,substitutions and replacements thereof.

 

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

 

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

 

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

 

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

 

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

 

“Improvements” shall mean all buildings,structures and other improvements of every kind or description and any and allAlterations now or hereafter located, attached or erected on the Landincluding, without limitation, (i) all Fixtures, (ii) allattachments, 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 theLand 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 partof the Improvements immediately upon delivery thereof on the Land and to bepart of the Improvements immediately upon their incorporation therein.

 

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

 

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

 

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

 

“Insurance Policies” means the insurancepolicies and coverages required to be maintained by the Mortgagor with respectto the Mortgaged Property pursuant to Section 4.19(b) of the Indenture and allrenewals and extensions thereof.

 

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

 

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

 

“Land” shall mean those certain tracts orparcels of land described in Schedule A annexed to this Mortgage,together with all of the Mortgagor’s reversionary rights therein and all of theMortgagor’s rights in and to any and all easements, rights-of-way, strips andgores of land, drives, roads, curbs, streets, ways, alleys, passages, passageways, sewer rights, waters, water courses, water rights, mineral, gas and oilrights, and all power, air, light and other rights, estates, titles, interests,privileges, liberties, servitudes, licenses, tenements, hereditaments andappurtenances whatsoever, in any way belonging, relating or appertainingthereto, 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.

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

“Officers’ Certificate” shall have the meaningassigned 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 GovernmentalAuthority (or any Person acting on behalf of a Governmental Authority) now orhereafter acquired or held, together with all amendments, modifications,extensions, renewals and replacements of any thereof issued or in any wayfurnished in connection with the Mortgaged Property including, withoutlimitation, building permits, certificates of occupancy, environmentalcertificates, industrial permits or licenses and certificates of operation.

 

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

 

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

 

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

 

“Premises” shall mean, collectively, the Landand the Improvements.

 

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

 

“Proceeds” shall mean, collectively, any andall cash proceeds and noncash proceeds derived or to be derived from theMortgaged Property and shall include, without limitation, all (i) proceedsof the sale, transfer or conveyance of the Mortgaged Property or theconversion, voluntary or involuntary, of any of the Mortgaged Property or anyportion thereof into cash or liquidated claims, (ii) proceeds of any insurance(except payments made to a Person, other than the Issuer or any Subsidiarythereof, that is not a party to this Mortgage), indemnity, warranty, guarantyor claim payable to the Mortgagee or to the Mortgagor from time to time withrespect to any of the Mortgaged Property including, without limitation, all NetLoss Proceeds relating thereto, (iii) payments (in any form whatsoever)made or due and payable to the Mortgagor from time to time in connection withany requisition, confiscation, condemnation, seizure or forfeiture of all orany portion of the Mortgaged Property by any Governmental Authority (or anyPerson acting on behalf of a Governmental Authority) including, withoutlimitation, all Net Loss Awards relating thereto, (iv) products of the MortgagedProperty, (v) other amounts from time to time paid or payable under or inconnection with any of the Mortgaged Property including, without limitation,refunds of real estate taxes and assessments, including interest thereon andany unearned insurance premiums relating thereto and (vi) the right to enforceany and all rights that the Mortgagor has or may have to collect all suchproceeds, including, without limitation, the Mortgagor’s rights to commence anyand 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 orresulted in (or would reasonably be expected to cause or result in) a materialadverse effect on the business or operations as presently conducted at theMortgaged Property; (b) any event, circumstance, occurrence or condition whichhas caused or resulted in (or would reasonably be expected to cause or resultin) a material adverse effect on the value or utility of the MortgagedProperty; and (c) any event, circumstance, occurrence or condition whichhas caused or resulted in (or would reasonably be expected to cause or resultin) a material adverse effect on the legality, priority or enforceability ofthe Lien created by this Mortgage or the rights and remedies of the Mortgageehereunder.

 

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

 

 “Records”shall mean, collectively, any and all right, title and interest of theMortgagor 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 anyAlteration or the maintenance of any Permit.

 

“Rents” shall mean, collectively, any and allrents, additional rents, royalties, issues, cash, guaranties, letters ofcredit, bonds, sureties or security deposited under any Lease to secureperformance of the Tenant’s obligations thereunder, revenues, earnings,profits, bonuses and income, advance rental payments, payments incident toassignment, sublease or surrender of a Lease, claims for forfeited deposits andclaims for damages, now due or hereafter to become due, with respect to anyLease, any indemnification

 

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against, or reimbursement for, sums paid and costs andexpenses incurred by the Mortgagor under any Lease or otherwise, and any awardin 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, withoutlimitation, any and all orders, decrees, determinations, laws, treaties,ordinances, rules, regulations or similar statutes or case law.

 

“Secured Obligations” shall mean allobligations (whether or not constituting future advances, obligatory orotherwise) of the Issuer and any and all of the Guarantors from time to timearising under or in respect of this Mortgage, the Indenture, the Notes and theother Collateral Documents (including, without limitation, the obligations topay principal, interest and all other charges, fees, expenses, commissions,reimbursements, premiums, indemnities and other payments related to or inrespect of the obligations contained in this Mortgage, the Indenture, the Notesand the other Collateral Documents), in each case whether (i) such obligationsare direct or indirect, secured or unsecured, joint or several, absolute orcontingent, due or to become due whether at stated maturity, by acceleration orotherwise, (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 oraccruing after the commencement of any bankruptcy, insolvency, reorganizationor similar proceeding with respect to the Issuer, any Guarantor or any otherPerson, or which would have arisen or accrued but for the commencement of suchproceeding, even if such obligation or the claim therefor is not enforceable orallowable in such proceeding).

 

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

 

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

 

“Subordination Agreement” shall mean asubordination, nondisturbance and attornment agreement substantially in theform of Exhibit 1 annexed to this Mortgage.

 

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

 

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

 

“Tax Escrow Fund” shall have the meaningassigned 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 asin effect on the date hereof in the jurisdiction in which the Premises arelocated; provided, however, that if by reason of mandatoryprovisions of law, the perfection or the effect of perfection or non-perfectionof the security interest in any item or portion of the Mortgaged Property isgoverned by the Uniform Commercial Code as in effect in a jurisdiction

 

7

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other than the jurisdiction in which the Premises arelocated, “UCC” shall mean the Uniform Commercial Code as in effect in suchother jurisdiction for purposes of the provisions hereof relating to suchperfection 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 toany Person include such Person’s successors and assigns and in the case of anindividual, 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 otherlaws amending, consolidating or replacing the statute or law referred to, (v)the words “consent,” “approve” and “agree,” and derivations thereof or words ofsimilar import, mean the prior written consent, approval or agreement of thePerson in question not to be unreasonably withheld, (vi) the words “include”and “including,” and words of similar import, shall be deemed to be followed bythe words “without limitation,” (vii) the words “hereto,” “herein,” “hereof”and “hereunder,” and words of similar import, refer to this Mortgage in itsentirety, (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 andExhibits to this Mortgage, in each case as amended, amended and restated,supplemented or otherwise modified from time to time in accordance with theprovisions hereof, are incorporated herein by reference, (x) the titles andheadings of Articles, Sections, Schedules, Exhibits, subsections, paragraphsand clauses are inserted as a matter of convenience only and shall not affect theconstructions of any provisions hereof and (xi) all obligations of the Mortgagorhereunder shall be satisfied by the Mortgagor at the Mortgagor’s sole cost andexpense.

##  

## SECTION 1.3  Resolutionof Drafting Ambiguities.  TheMortgagor acknowledges and agrees that it was represented by counsel inconnection with the execution and delivery hereof, that it and its counselreviewed and participated in the preparation and negotiation hereof and thatany rule of construction to the effect that ambiguities are to be resolvedagainst the drafting party (i.e., Mortgagee) shall not be employed inthe interpretation hereof.

##  

# ARTICLE II

#  

# GRANTSAND SECURED OBLIGATIONS

#  

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

##  

##### (i)            Land;

#####  

##### (ii)           Improvements;

#####  

8

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##### (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 anyof its rights or interests thereunder (other than (x) the right to receive anypayment of money (including without limitation accounts, general intangiblesand payment intangibles (each as defined in the UCC) or any other rightsreferred to in Sections 9-406(f), 9-407(a) or 9-408(a) of the UCC and (y) anyproceeds, substitutions or replacements thereof) to the extent, but only to theextent, that such a grant would, under the terms of such Contract, result in abreach or termination of the terms of, or constitute a default under ortermination of such Contract and (ii) any Permit to the extent, but only to theextent that, such grant shall constitute or result in abandonment, invalidationor rendering unenforceable any right, title or interest of the Mortgagortherein; provided, however, that at such time as any Contract orPermit described in clauses (i) and (ii) of this sentence is no longer subjectto such restriction, such applicable Contract or Permit shall (without any actor delivery by any Person) constitute Mortgaged Property hereunder.

 

TO HAVE AND TO HOLD the Mortgaged Property, togetherwith all estate, right, title and interest of the Mortgagor and anyone claimingby, through or under the Mortgagor in and to the Mortgaged Property and allrights and appurtenances relating thereto, unto the Mortgagee, its successorsand assigns, for the purpose of securing the payment and performance in full ofall the Secured Obligations.

 

SECTION 2.2  Collateral Assignment andPledge of Mortgagor’s Interest as Additional Security.  As additional collateral security for theprompt and punctual payment and satisfaction of the Secured Obligations, andall additional advances that the Mortgagee may make on the Mortgagor’s behalfpursuant to this Mortgage, together with interest thereon as provided herein,the Mortgagor hereby assigns, pledges and grants to the Mortgagee (for itsbenefit and for the benefit of the other Secured Parties), a continuingsecurity interest in and to all of the Mortgagor’s estate, right, title,interest, claim and demand, as Landlord, under any and all of the Leasesincluding, without limitation, the following (such assigned rights, the “Mortgagor’sInterest”):

 

##### (i)            the immediate and continuing rightto 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 orarising by statute or at law or in equity or otherwise, consequent on anyfailure on the part of the Tenants to perform or comply with any term of theLeases including damages or other amounts payable to the Mortgagor as a resultof such failure;

#####  

9

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

#####  

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

#####  

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

##  

## SECTION 2.4  MortgageSecuring Future Indebtedness. This Mortgage has been executed by Mortgagor pursuant to Article 3298 ofthe Louisiana Civil Code for the purpose of securing the Mortgagor’sindebtedness (including, without limitation, the Secured Obligations) that maynow be existing or that may arise in the future as provided herein and in theIndenture, with the preferences and priorities provided under applicableLouisiana law.  This Mortgage shall befurther entitled to the preferences and priorities as provided under theLouisiana Private Works Act (La. R.S. 9:4801, et seq.).  However, nothing under this Mortgage shall beconstrued as limiting the duration of this Mortgage or the purpose or purposesfor which the Mortgagor’s indebtedness (including, without limitation, theSecured Obligations) may be requested or extended.  The Mortgagor’s additional indebtedness willautomatically be secured by this Mortgage without the necessity that theMortgagor agrees or consents to such a result at the time additionalindebtedness is made and that the note or notes evidencing such additionalindebtedness reference the fact that such notes are secured by thisMortgage.  The Mortgagor understands thatthe Mortgagor may not subsequently have a change of mind and insist that theMortgagor’s additional indebtedness not be secured by this Mortgage unless theMortgagee specifically agrees to such a request in writing.

##  

## SECTION 2.5  NoRelease.  Nothing set forth in thisMortgage shall relieve the Mortgagor from the performance of any term,covenant, condition or agreement on the Mortgagor’s part to be performed orobserved under or in respect of any of the Mortgaged Property or from anyliability to any Person under or in respect of any of the Mortgaged Property orshall impose any obligation on the Mortgagee or any other Secured Party toperform or observe any such term, covenant, condition or agreement on theMortgagor’s part to be so performed or observed or shall impose any liabilityon the Mortgagee or any other Secured Party for any act or omission on the partof the Mortgagor relating thereto or for any breach of any representation orwarranty on the part of the Mortgagor contained in this Mortgage, theIndenture, the Notes or the Collateral Documents, or under or in respect of theMortgaged Property or made in connection herewith or therewith.  The obligations of the Mortgagor contained inthis Section 2.5 shall survive the termination hereof and thedischarge of the Mortgagor’s other obligations under this Mortgage and theIndenture, the Notes and the Collateral Documents.

##  

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# ARTICLE III

#  

# REPRESENTATIONSAND WARRANTIES OF MORTGAGOR

#  

## SECTION 3.1  Authorityand 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 jurisdictionof its organization;

#####  

##### (ii)           it is duly qualified to transactbusiness and is in good standing in the state in which the Mortgaged Propertyis located;

#####  

##### (iii)          it has full corporate or otherorganizational power and lawful authority to execute and deliver this Mortgageand to mortgage and grant a Lien on and security interest in the MortgagedProperty and otherwise assign the Mortgagor’s Interest and otherwise performits obligations as contemplated herein, and all corporate and governmentalactions, consents, authorizations and approvals necessary or required thereforhave been duly and effectively taken or obtained; and

#####  

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

#####  

## SECTION 3.2  Warrantyof Title.  The Mortgagorrepresents and warrants that:

##  

##### (i)            it has good fee simple title to thePremises and the Landlord’s interest and estate under or in respect of theLeases and good title to the interest it purports to own or hold in and to eachof the Permits, the Contracts and the Records, in each case subject to noLiens, except for Permitted Collateral Liens;

#####  

##### (ii)           it has good title to the interest itpurports to own or hold in and to all rights and appurtenances to or thatconstitute a portion of the Mortgaged Property, except for Permitted CollateralLiens;

#####  

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

#####  

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

#####  

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## SECTION 3.3  Conditionof Mortgaged Property.  The Mortgagorrepresents and warrants that:

##  

##### (i)            there has been issued and thereremains in full force and effect subject to no revocation, suspension,forfeiture or modification, each and every Permit necessary for the presentuse, operation and occupancy of the Premises by the Mortgagor and its Tenantsand the conduct of their respective businesses and all required zoning,building code, land use, environmental and other similar Permits, except wherethe failure to be so issued and to be in full force and effect would not resultin a Property Material Adverse Effect;

#####  

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

#####  

##### (iii)          the Premises are served by allutilities (including, without limitation, water and sewer systems) necessaryfor the present use thereof, and all utility services are provided by public orprivate utilities and the Premises have accepted or are equipped to accept suchutility services and the Mortgagor has not received notice of termination ofsuch utility service, except where the failure to be so served would not resultin a Property Material Adverse Effect;

#####  

##### (iv)          the Mortgagor has access to thePremises from roads sufficient to allow the Mortgagor and its Tenants andinvitees to conduct their respective businesses at the Premises in accordancewith sound commercial practices and the Mortgagor has not received notice oftermination of such access, except where the failure to have such access wouldnot result in a Property Material Adverse Effect;

#####  

##### (v)           the Mortgagor has not received noticeof any Taking or the commencement or pendency of any action or proceedingtherefor, other than such Takings as would not result in a Property MaterialAdverse Effect;

#####  

##### (vi)          there has not occurred any Destructionof the Premises or any portion thereof as a result of any fire or othercasualty that, as of the date hereof, has not been repaired in all materialrespects, other than such Destruction as would not have a Property MaterialAdverse Effect;

#####  

##### (vii)         there are no disputes regardingboundary lines, location, encroachments or possession of any portions of theMortgaged Property and no state of facts exists which could give rise to anysuch claim other than such disputes as would not result in a Property MaterialAdverse Effect;

#####  

##### (viii)        all liquid and solid waste disposal,septic and sewer systems located on the Premises are in a good and safecondition and repair and in compliance with all Requirements of Law, exceptwhere the failure to so comply would not result in a Property Material AdverseEffect;

#####  

##### (ix)           no portion of the Premises is locatedin an area identified by the Federal Emergency Management Agency or anysuccessor thereto as an area having special flood hazards pursuant to

#####  

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##### the Flood Insurance Acts or, if any portion of the Premises is locatedwithin such area, the Mortgagor has obtained the insurance prescribed in Article VIIIhereof;

#####  

##### (x)            the Premises are assessed for realestate tax purposes as one or more wholly independent tax lot or lots, separatefrom any adjoining land or improvements not constituting a portion of such lotor lots, and no other land or improvements are assessed and taxed together withthe Premises or any portion thereof, other than such cases where the failure tobe so assessed would not result in a Property Material Adverse Effect; and

#####  

##### (xi)           there are no options or rights offirst refusal to purchase or acquire all or any portion of the MortgagedProperty, other than such options or rights of first refusal as would notresult in a Property Material Adverse Effect.

#####  

## SECTION 3.4  Leases.  The Mortgagor represents and warrants that asof the date hereof:

##  

##### (i)            the Leases identified in Schedule Cattached hereto are the only Leases in existence on the date hereof relating tothe Premises;

#####  

##### (ii)           true copies of such Leases have beenpreviously delivered to the Mortgagee and there are no agreements with anyTenant under such Leases other than those agreements expressly set forththerein;

#####  

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

#####  

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

#####  

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

#####  

##### (vi)          all Rents due under such Leases havebeen paid in full;

#####  

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

#####  

##### (viii)        none of the Rents (other than anysecurity deposit collected in accordance with the provisions of the applicableLease) have been collected for more than one (1) month in advance;

#####  

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

#####  

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

#####  

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##### (xi)           no such Lease contains any option topurchase, 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 thisMortgage either pursuant to its terms or pursuant to a recordable SubordinationAgreement.

#####  

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

##  

SECTION 3.6  Charges.  The Mortgagor represents and warrants thatall Charges imposed upon or assessed against the Mortgaged Property have beenpaid and discharged except to the extent such Charges constitute a Lien not yetdue and payable or to the extent such Charges are being contested in accordancewith Section 9.1 hereof.

 

SECTION 3.7  Environmental.  The Mortgagor represents and warrants that:

 

##### (i)            it has obtained all Permits whichare necessary with respect to the ownership and operation of its business andthe Mortgaged Property under any and all applicable Environmental Laws and isin compliance with all terms and conditions thereof, except where the failureso to obtain or to be in compliance would not result in a Property MaterialAdverse Effect;

#####  

##### (ii)           it is in compliance with any and allapplicable Environmental Laws including, without limitation, all otherlimitations, 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 PropertyMaterial Adverse Effect;

#####  

##### (iii)          there is no civil, criminal oradministrative action, suit, demand, claim, hearing, notice of violation,investigation, proceeding, notice of demand letter pending or threatenedagainst it or any Affiliate under the Environmental Laws which would result ina fine, penalty or other cost or expense other than such instances that wouldnot result in a Property Material Adverse Effect; and

#####  

##### (iv)          there are no past or present events,conditions, circumstances, activities, practices, incidents, actions or planswhich may interfere with or prevent compliance with the Environmental Laws, orwhich may give rise to any common law or legal liability including, withoutlimitation, liability under the Comprehensive Environmental Response, Compensationand Liability Act of 1980, as amended, or any other Environmental Law orrelated common law theory or otherwise form the basis of any claim, action,demand, suit, proceeding, hearing or notice of violation, study orinvestigation, based on or related to the manufacture, processing,distribution, use, generation, treatment, storage, disposal, transport orhandling, or the emission, discharge, release or threatened release into the environment,of any Hazardous Materials which would result in a fine, penalty or

#####  

14

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##### other cost or expense other than such instances thatwould not result in a Property Material Adverse Effect .

#####  

## SECTION 3.8  NoConflicts, Consents, etc. Neither the execution and delivery hereof by the Mortgagor nor theconsummation of the transactions herein contemplated nor the fulfillment of theterms hereof (i) violates the terms of any agreement, indenture, mortgage, deedof trust, equipment lease, instrument or other document to which the Mortgagoris a party, or by which it may be bound or to which any of its properties orassets may be subject, (ii) conflicts with any Requirement of Law applicable tothe Mortgagor or its property or (iii) results in or requires the creation orimposition of any Lien (other than the Lien contemplated hereby) upon or withrespect 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, withoutlimitation, equityholders or creditors of the Mortgagor) and no consent,authorization, approval, license or other action by, and no notice to or filingwith, any Governmental Authority or regulatory body or other Person (other thanwith respect to any required Permits) is required for (i) the granting ofa mortgage Lien on and security interest in the Mortgaged Property by theMortgagor granted by it pursuant to this Mortgage or for the execution,delivery or performance hereof by the Mortgagor except for the filing of thisMortgage and the other filings contemplated hereby or (ii) the exercise bythe Mortgagee of the remedies in respect of the Mortgaged Property pursuant tothis Mortgage other than those required by law in connection with the exerciseof the applicable remedy.

##  

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

 

# ARTICLE IV

#  

# CERTAIN COVENANTS OFMORTGAGOR

#  

## SECTION 4.1  Preservationof Corporate Existence.  TheMortgagor shall:

##  

##### (i)            preserve and maintain in full forceand effect its existence and good standing under the laws of the jurisdictionof its organization;

#####  

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

#####  

##### (iii)          preserve and maintain in full forceand effect all consents, authorizations and approvals necessary or required ofany Governmental Authority or any other Person relating to the execution,delivery and performance hereof, except where the failure to do so would notresult in a Property Material Adverse Effect.

#####  

## SECTION 4.2  Title.  The Mortgagor shall:

##  

##### (i)            (A) keep in effect all materialrights and appurtenances to or that constitute a part of the Mortgaged Propertyand (B) protect, preserve and defend its interest in the Mortgaged Property

#####  

15

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##### and title thereto, except against Permitted CollateralLiens (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 theMortgagor which is secured by the Mortgaged Property, except where the failureto so comply would not result in a Property Material Adverse Effect, or thenoncompliance with which may result in the imposition of a Lien on theMortgaged Property, (B) forever warrant and defend to the Mortgagee theLien and security interests created and evidenced hereby and the validity andpriority hereof in any action or proceeding against the claims of any and allPersons whomsoever affecting or purporting to affect the Mortgaged Property orany of the rights of the Mortgagee hereunder, except against PermittedCollateral Liens (other than the Lien of this Mortgage), and (C) maintaina valid and enforceable first priority Lien, except for Permitted CollateralLiens (other than the Lien of this Mortgage) on the Mortgaged Property and, tothe extent any of the Mortgaged Property shall consist of Fixtures, a firstpriority security interest in the Mortgaged Property, which first priority Lienand security interest shall be subject only to Permitted Collateral Liens; and

#####  

##### (iii)          immediately upon obtaining knowledgeof the pendency of any proceedings for the eviction of the Mortgagor from theMortgaged Property or any part thereof by paramount title or otherwisequestioning the Mortgagor’s right, title and interest in, to and under theMortgaged Property as warranted in this Mortgage, or of any condition thatcould give rise to any such proceedings, notify the Mortgagee thereof.  The Mortgagee may participate in suchproceedings and the Mortgagor will deliver or cause to be delivered to theMortgagee all instruments requested by the Mortgagee to permit suchparticipation.  In any such proceedings,the Mortgagee may be represented by counsel reasonably satisfactory to theMortgagee 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 thereofor interest therein and title insurance proceeds shall be payable in connectiontherewith, such proceeds are hereby assigned to and shall be paid to theMortgagee for deposit into the Collateral Account and shall be applied in themanner applicable to Net Loss Proceeds in accordance with the provisions ofSections 4.16, 10.05(c) and 11.02 of the Indenture.

#####  

## SECTION 4.3  Maintenanceand Use of Mortgaged Property; Alterations.

##  

##### (i)            Maintenance.  The Mortgagor shall cause the representationsand warranties set forth in Section 3.3 hereof to continue to be true ineach 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 inaccordance with Section 9.1 hereof.

#####  

##### (ii)           Maintenance of Premises.  The Mortgagor shall not commit or suffer anywaste on the Premises.  The Mortgagorshall, at all times, maintain the Premises in good working order, condition andrepair, reasonable wear and tear excepted, and shall use commerciallyreasonable efforts to make or cause to be made all repairs, structural ornonstructural, which are necessary or appropriate in the conduct of theMortgagor’s business.  The Mortgagorshall not, except as permitted in Section 4.3(iii) hereof, alter theoccupancy or use of all or any portion of the Premises without the priorwritten consent of the Mortgagee, which consent shall not be unreasonablywithheld.  Except to the extent permittedpursuant to the provisions of Section 4.3(iii) hereof, theMortgagor shall not remove, demolish or alter the structural character

#####  

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##### of any Improvement now or hereafter erected upon allor any portion of the Premises, or permit any such removal, demolition oralteration, without the prior written consent of the Mortgagee, which consentshall not be unreasonably withheld.

#####  

##### (iii)          Alterations.  The Mortgagor shall not, without the priorwritten consent of the Mortgagee, which consent shall not be unreasonablywithheld, make any Alteration to the Premises except as permitted by Sections10.04 and 10.06 of the Indenture. Whether or not the making of any Alteration shall require the consent ofthe Mortgagee pursuant to the immediately preceding sentence, the Mortgagorshall (A) complete each Alteration promptly, in a good and workmanlikemanner and in compliance, in all material respects, with all applicable locallaws, ordinances and requirements and (B) pay when due all claims forlabor performed and materials furnished in connection with such Alteration,unless contested in accordance with the provisions of Article IXhereof.

#####  

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

#####  

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

#####  

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

##  

## SECTION 4.5  Accessto 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 visitand inspect, as applicable, during normal business hours and such otherreasonable time as may be requested by the Mortgagee, all of the MortgagedProperty including, without limitation, all of the books, correspondence andrecords of the Mortgagor relating thereto. The Mortgagee and its representatives may examine the same, takeextracts therefrom and make photocopies thereof.  The Mortgagor shall, at any and all times,within a reasonable time after written request by the Mortgagee, furnish orcause to be furnished to the Mortgagee, in such manner and in such detail asmay be reasonably requested by the Mortgagee, additional information with respectto the Mortgaged Property.

##  

## SECTION 4.6  Limitationon Liens; Transfer Restrictions.  TheMortgagor may not, without the prior written consent of the Mortgagee, furthermortgage, encumber, hypothecate, sell, convey or assign all or any part of theMortgaged Property or suffer or allow any of the foregoing to occur by operationof law or otherwise; provided, however, that the Mortgagor shallhave the right to (1) sell, convey or assign all or any portion of the MortgagedProperty in accordance with the provisions of the Indenture and 

##  

17

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## (2) sufferto exist the following Liens in respect of the Mortgaged Property:(i) Prior Liens (but not extensions, amendments, supplements orreplacements of Prior Liens unless (A) extended, amended, supplemented orreplaced in a manner permitted by the Indenture or (B) consented to by theMortgagee which consent shall not be unreasonably withheld), (ii) the Lienand security interest created by this Mortgage or any other CollateralDocument, (iii) Contested Liens, (iv) Liens described in clause (9) of thedefinition of Permitted Liens (provided, however, that such Liensshall not extend to or cover any Mortgaged Property other than equipmentsubject to Capital Leases Obligations or Purchase Money Obligations incurred inaccordance with the provisions of the Indenture) or clause (4) of thedefinition of Permitted Liens, and (v) Leases to the extent permitted pursuantto 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 notresult in a Property Material Adverse Effect, the Mortgagor shall(A) comply with any and all present and future Environmental Lawsapplicable to the Mortgaged Property, (B) not release, store, treat,handle, generate, discharge or dispose of any Hazardous Materials at, on, underor from the Mortgaged Property in violation of or in a manner that could resultin any material liability under any present and future Environmental Law and(C) take all necessary steps to initiate and expeditiously complete allremedial, corrective and other action to eliminate any such effect.  In the event the Mortgagor fails to complywith the covenants in the preceding sentence, the Mortgagee may, in addition toany other remedies set forth herein, as agent for the Mortgagor and at theMortgagor’s sole cost and expense, cause any remediation, removal or responseaction relating to Hazardous Materials required by applicable EnvironmentalLaws to be taken and the Mortgagor shall provide to the Mortgagee and itsagents and employees access to the Mortgaged Property for such purpose.  Any reasonable costs or expenses incurred bythe Mortgagee for such purpose shall be immediately due and payable by theMortgagor and shall bear interest at the Default Rate. The Mortgagee shall havethe right at any time when an Event of Default shall have occurred and becontinuing and at such other times when a potential violation of any present orfuture Environmental Law exists which in the Mortgagee’s reasonable judgmentcould result in any material liability or obligation under such EnvironmentalLaw, at the sole cost and expense of the Mortgagor, to conduct an environmentalaudit of the Mortgaged Property by such persons or firms appointed by theMortgagee, and the Mortgagor shall cooperate in all respects in the conduct ofsuch environmental audit, including, without limitation, by providing access tothe Mortgaged Property and to all records relating thereto.  To the extent that any such environmentalaudit identifies conditions which in the Mortgagee’s reasonable judgment wouldresult in any material liability or obligation under any present or futureEnvironmental Law, the Mortgagor agrees to expeditiously correct any suchviolation or respond to conditions giving rise to such liability or obligationsin a manner which complies in all material respects with the Environmental Lawsand mitigates associated health and environmental risks.  The Mortgagor shall indemnify and hold theMortgagee and each of the other Secured Parties harmless from and against allloss, cost, damage or reasonable expense (including, without limitation,reasonable attorneys’ and consultants’ fees and disbursements) that theMortgagee or any other Secured Party may sustain by reason of the assertionagainst the Mortgagee or any Secured Party by any party of any claim relatingto such Hazardous Materials on, under or from the Mortgaged Property or actionstaken with respect thereto as authorized hereunder, except to the extentarising from the gross negligence or willful misconduct of the Mortgagee or anyother Secured Party.  The foregoingindemnification shall survive repayment of all Secured Obligations and anyrelease or assignment hereof; and

#####  

18

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##### (ii)           Asbestos. The Mortgagor shallnot install nor permit to be installed in or removed from the MortgagedProperty, asbestos or any asbestos-containing material (collectively, “ACM”)except in compliance, in all material respects, with all applicableEnvironmental Laws, and with respect to any ACM currently present in theMortgaged Property, the Mortgagor shall promptly either (A) remove any ACMwhich such Environmental Laws require to be removed or (B) otherwisecomply, in all material respects, with such Environmental Laws with respect tosuch ACM, all at the Mortgagor’s sole cost and expense.  If the Mortgagor shall fail so to remove anyACM or otherwise comply, in all material respects, with such laws orregulations, the Mortgagee may, in addition to any other remedies set forthherein, take reasonable or necessary steps to eliminate any ACM from theMortgaged Property or otherwise comply, in all material respects, withapplicable law, regulations or orders and the Mortgagor shall provide to theMortgagee and its agents and employees access to the Mortgaged Property forsuch purpose.  Any reasonable costs orexpenses incurred by the Mortgagee for such purpose shall be immediately dueand payable by the Mortgagor and bear interest at the Default Rate.  The Mortgagor shall indemnify and hold theMortgagee 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 otherSecured Parties may sustain, as a result of the presence of any ACM and anyremoval thereof or compliance with all applicable Environmental Laws, except tothe extent arising from the gross negligence or willful misconduct of theMortgagee or any other Secured Party. The foregoing indemnification shall survive repayment of all SecuredObligations and any release or assignment hereof.

#####  

## SECTION 4.8  EstoppelCertificates.  The Mortgagor shall,from time to time, upon thirty (30) days’ prior written reasonable request ofthe Mortgagee, execute, acknowledge and deliver to the Mortgagee an Officers’Certificate stating that this Mortgage, the Indenture, the Notes and theCollateral Documents are unmodified and in full force and effect (or, if therehave been modifications, that this Mortgage, the Indenture, the Notes and theCollateral Documents, as applicable, is or are in full force and effect asmodified and setting forth such modifications) and stating the date to whichprincipal and interest have been paid on the Notes.

##  

# ARTICLE V

#  

# LEASES

#  

## SECTION 5.1  Mortgagor’sAffirmative Covenants with Respect to Leases.  With respect to each Lease, the Mortgagorshall:

##  

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

#####  

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

#####  

##### (iii)          enforce all of the terms, covenantsand conditions contained in such Lease upon the part of the Tenant thereunderto be observed or performed to the extent it would be commercially reasonableto do so.

#####  

19

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## SECTION 5.2  Mortgagor’sNegative Covenants with Respect to Leases. With respect to each Lease, the Mortgagor shall not, without the priorwritten consent of the Mortgagee, which consent shall not be unreasonablywithheld:

##  

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

#####  

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

######  

###### (B)             the amount held by Landlord as areasonable security deposit thereunder; and

######  

###### (C)             any amount received and collected forescalation 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 thendue or to accrue in the future or the interest of the Mortgagor as Landlordunder such Lease;

#####  

##### (iii)          enter into any amendment ormodification of such Lease which would materially decrease the unexpired termthereof or decrease the amount of the Rents payable thereunder or materiallyimpair the value or utility of the Mortgaged Property or the security providedby this Mortgage;

#####  

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

#####  

###### (A)           the Tenant under such Lease has not paid theequivalent of two (2) months’ Rent and the Mortgagor has made reasonableefforts to collect such Rent; and

######  

###### (B)             it would be commercially reasonable toterminate such Lease; or

######  

##### (v)           waive, excuse, condone or in anymanner discharge or release any Tenants of or from the material obligations ofsuch Tenants under their respective Leases or guarantors of Tenants from anymaterial obligations under any guarantees of the Leases except as the samewould be done by a Prudent Operator with due regard for the security affordedthe Mortgagee thereby.

#####  

## SECTION 5.3  AdditionalRequirements with Respect to New Leases. In addition to the requirements of Sections 5.1 and 5.2hereof, the Mortgagor shall not enter into any Lease after the date hereofunless the Tenant under such Lease has entered into a Subordination Agreementand has otherwise complied with the provisions of Section 10.06 of theIndenture.

##  

20

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# ARTICLE VI

#  

# CONCERNINGASSIGNMENT OF LEASES AND RENTS

#  

## SECTION 6.1  Present Assignment; License tothe Mortgagor.  Section 2.2 of thisMortgage constitutes a present, absolute, effective, irrevocable and completeassignment by the Mortgagor to the Mortgagee of the Leases and Rents and theright, subject to applicable law, to collect all sums payable to the Mortgagorthereunder and apply the same as the Mortgagee may, in its sole discretion,determine to be appropriate (including the payment of reasonable costs andexpenses in connection with the maintenance, operation, improvement, insurance,taxes and upkeep of the Mortgaged Property), which is not conditioned upon theMortgagee being in possession of the Premises. The Mortgagee hereby grants to the Mortgagor, however, a license tocollect and apply the Rents and to enforce the obligations of Tenants under theLeases.  Immediately upon the occurrenceof and during the continuance of any Event of Default or a Default, the licensegranted in the immediately preceding sentence shall cease and terminate, withor without any notice, action or proceeding or the intervention of a receiverappointed by a court.

##  

## SECTION 6.2  Collectionof Rents by the Mortgagee.

##  

##### (i)            From and after the occurrence andduring the continuance of an Event of Default or a Default, any Rentsreceivable by the Mortgagee hereunder, after payment of all proper costs andexpenses as Mortgagee may, in its sole discretion, determine to be appropriate(including the payment of reasonable costs and expenses in connection with themaintenance, operation, improvement, insurance, taxes and upkeep of theMortgaged Property), shall be applied to the Secured Obligations or, at theoption of the Mortgagee, shall be held by the Mortgagee as additionalcollateral to secure the performance by the Mortgagor of the Secured Obligations.  The Mortgagee shall be accountable to theMortgagor only for Rents actually received by the Mortgagee.  The collection of such Rents and theapplication thereof shall not cure or waive any Event of Default or a Defaultor waive, modify or affect notice of Event of Default or a Default orinvalidate any act done pursuant to such notice.

#####  

##### (ii)           The Mortgagor hereby irrevocablyauthorizes and directs Tenant under each Lease to rely upon and comply with anyand all notices or demands from the Mortgagee for payment of Rents to theMortgagee and the Mortgagor shall have no claim against Tenant for Rents paidby Tenant to the Mortgagee pursuant to such notice or demand.

#####  

## SECTION 6.3  NoRelease.  Neither thisMortgage nor any action or inaction on the part of the Mortgagee shall releaseany Tenant under any Lease, any guarantor of any Lease or the Mortgagor fromany of their respective obligations under such Leases or constitute anassumption of any such obligation on the part of the Mortgagee.  No action or failure to act on the part ofthe Mortgagor shall adversely affect or limit the rights of the Mortgagee underthis Mortgage or, through this Mortgage, under such Leases.  Nothing contained herein shall operate or beconstrued to (i) obligate the Mortgagee to perform any of the terms,covenants or conditions contained in any Lease or otherwise to impose anyobligation upon the Mortgagee with respect to such Lease (including, withoutlimitation, any obligation arising out of any covenant of quiet enjoyment containedin such Lease in the event that Tenant under such Lease shall have been joinedas a party defendant in any action by which the estate of such Tenant shall beterminated) or (ii) place upon the Mortgagee any obligation for theoperation, control, care, management or repair of the Premises.

##  

21

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## SECTION 6.4  IrrevocableInterest.  All rights, powers andprivileges of the Mortgagee herein set forth are coupled with an interest andare irrevocable, subject to the terms and conditions hereof, and the Mortgagorshall not take any action under the Leases or otherwise which is inconsistentwith this Mortgage or any of the terms hereof and any such action inconsistentherewith or therewith shall be void.

##  

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

##  

# ARTICLE VII

#  

# TAXES AND CERTAIN STATUTORY LIENS

#  

## SECTION 7.1  Paymentof Charges.  Unless and to the extentcontested by the Mortgagor in accordance with the provisions of Article IXhereof, the Mortgagor shall pay and discharge, or cause to be paid anddischarged, from time to time when the same shall become due (or within anyapplicable grace period) , all Charges subject to this Article VII.  The Mortgagor shall, upon the Mortgagee’srequest, deliver to the Mortgagee receipts evidencing the payment of all suchCharges.

##  

## SECTION 7.2  Escrowof Taxes.  From and after theoccurrence and during the continuance of an Event of Default or a Default, atthe option and upon the request of the Mortgagee, the Mortgagor shall depositwith the Mortgagee in an account maintained by the Mortgagee (the “TaxEscrow Fund”), on the first day of each month, an amount estimated by theMortgagee to be equal to one-twelfth of the annual real property taxes andother annual Charges required to be discharged by the Mortgagor under Section 7.1hereof.  Such amounts shall be held bythe Mortgagee without interest to the Mortgagor and applied to the payment ofthe obligations in respect of which such amounts were deposited, in suchpriority as the Mortgagee shall determine, on or before the respective dates onwhich such obligations or any part thereof would become delinquent.  Nothing contained in this Article VIIshall (i) affect any right or remedy of the Mortgagee under any provisionhereof or of any statute or rule of law to pay any such amount as providedabove from its own funds and to add the amount so paid, together with interestat the Default Rate during such time that any amount remains outstanding, tothe Secured Obligations or (ii) relieve the Mortgagor of its obligationsto make or provide for the payment of the annual real property taxes and otherannual Charges required to be discharged by the Mortgagor under Section 7.1hereof.

##  

## SECTION 7.3  CertainStatutory Liens.  Unless and to theextent contested by the Mortgagor in accordance with the provisions of Article IXhereof, the Mortgagor shall timely pay, or cause to be paid, all lawful claimsand demands of mechanics, materialmen, laborers, government agenciesadministering worker’s compensation insurance, old age pensions and socialsecurity benefits and all other claims, judgments, demands or amounts of anynature which, if unpaid, would result in, or permit the creation of, a Lien onthe Mortgaged Property or any part thereof, or which would result in forfeitureof all or any part of the Mortgaged Property.

##  

## SECTION 7.4  Stampand Other Taxes.  Unless and to theextent contested by the Mortgagor in accordance with the provisions of Article IXhereof, the Mortgagor shall pay any United States documentary stamp taxes, withinterest and fines and penalties, and any mortgage recording taxes, with

##  

22

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## interestand fines and penalties, that may hereafter be levied, imposed or assessedunder or upon or by reason hereof or the Secured Obligations or any instrumentor transaction affecting or relating to either thereof and in default thereofthe Mortgagee may advance the same and the amount so advanced shall be payableby the Mortgagor to the Mortgagee in accordance with the provisions of Section 14.5hereof.

##  

## SECTION 7.5  CertainTax Law Changes.  In the event of thepassage after the date hereof of any law deducting from the value of realproperty, for the purpose of taxation, amounts in respect of any Lien thereonor changing in any way the laws for the taxation of mortgages or debts securedby mortgages for state or local purposes or the manner of the collection of anyCharges, and imposing any Charges, either directly or indirectly, on thisMortgage, the Indenture or any other Collateral Document, the Mortgagor shallpromptly pay to the Mortgagee such amount or amounts as may be necessary fromtime to time to pay any such Charges.

##  

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

 

# ARTICLE VIII

#  

# INSURANCE

#  

## SECTION 8.1  RequiredInsurance Policies and Coverages. The Mortgagor shall maintain in respect of the Premises the insurancepolicies and coverages required under Section 4.19(b) of the Indenture.

##  

## SECTION 8.2  DeliveryAfter Foreclosure.  In the event thatthe proceeds of any insurance claim are paid after the Mortgagee has exercisedits right to foreclose the Lien hereof, such proceeds shall be paid to theMortgagee to satisfy any deficiency remaining after such foreclosure.  Mortgagee shall retain its interest in theInsurance Policies required to be maintained pursuant to this Mortgage duringany redemption period. The amount of any such proceeds in excess of anydeficiency claim of the Mortgagee shall be released to the Mortgagor.

##  

# ARTICLE IX

#  

# CONTESTING OF PAYMENTS

#  

## SECTION 9.1  Contestingof Taxes and Certain Statutory Liens. The Mortgagor may at its own expense contest the validity, amount orapplicability of any Charges as long as the contest thereof shall be conductedin accordance with, and permitted pursuant to the provisions of, theIndenture.  Notwithstanding the foregoingprovisions of this Section 9.1, (i) no contest of any suchobligations may be pursued by the Mortgagor (A) if such contest would exposethe Mortgagee or any Holder to any possible criminal liability or(B) unless the Mortgagor shall have furnished a bond or other securitytherefor reasonably

##  

23

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## satisfactoryto the Mortgagee or such Holder, as the case may be, including for anyadditional civil liability for failure to comply with such obligations and(ii) if at any time payment or performance of any obligation contested bythe Mortgagor pursuant to this Section 9.1 shall become necessary toprevent the imminent imposition of remedies because of non-payment, theMortgagor shall pay or perform the same in sufficient time to prevent the impositionof remedies in respect of such default or prospective default.

##  

## SECTION 9.2  Contestingof Insurance.  The Mortgagor shallnot take any action that would reasonably be expected to cause the termination,revocation or denial of any insurance coverage required to be maintained underthis Mortgage or that would be the basis for a defense to any claim under anyInsurance Policy maintained in respect of the Premises and the Mortgagor shallotherwise comply in all respects with all Insurance Requirements in respect ofthe Premises; provided, however, that the Mortgagor may, at itsown expense and after written notice to the Mortgagee, (i) contest theapplicability or enforceability of any such Insurance Requirements byappropriate legal proceedings, prosecution of which does not constitute a basisfor cancellation or revocation of any insurance coverage required under ArticleVIII hereof or (ii) cause the Insurance Policy containing any such InsuranceRequirement to be replaced by a new policy complying with the provisions of ArticleVIII 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 shallpromptly send to the Mortgagee a written notice setting forth the nature and extentof such Destruction.  The proceeds of anyinsurance payable in respect of such Destruction are hereby assigned and shallbe paid to the Mortgagee.  The Net LossProceeds arising out of such Destruction, shall be applied in accordance withthe 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 thecommencement of any proceeding thereof, the Mortgagor shall immediately notifythe Mortgagee upon receiving notice of such Taking or commencement ofproceedings therefor.  The Mortgagee may,at its option, participate in any proceedings or negotiations which mightresult in any Taking, and the Mortgagor shall deliver or cause to be deliveredto the Mortgagee all instruments requested by it to permit suchparticipation.  The Mortgagee may berepresented by counsel reasonably satisfactory to it at the reasonable expenseof 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 andin seeking and obtaining any award or payment on account thereof.  Any proceeds, award or payment in respect ofany Taking are hereby assigned and shall be paid to the Mortgagee.  The Mortgagor shall take all steps necessaryto notify the condemning authority of such assignment.  The Net Loss Proceeds arising out of suchTaking shall be applied in accordance with the provisions of Sections 4.16, 10.05(c)and 11.02 of the Indenture.

##  

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# ARTICLE XI

#  

# EVENTS OF DEFAULT AND REMEDIES

#  

## SECTION 11.1  Eventsof Default.  It shall bean Event of Default hereunder if there shall have occurred and be continuing anEvent of Default under the Indenture.

##  

## SECTION 11.2  Remediesin Case of an Event of Default.  Ifany Event of Default shall have occurred and be continuing, the Mortgagee mayat its option, in addition to any other action permitted under this Mortgage orthe Indenture or by law, statute or in equity, take one or more of thefollowing actions to the greatest extent permitted by local law:

##  

##### (i)                                     bywritten notice to the Issuer and the Mortgagor, declare the entire unpaidamount 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 possessionof all or any part of the Premises together with the books, records andaccounts of the Mortgagor relating thereto and, exclude the Mortgagor, itsagents and servants wholly therefrom, (B) use, operate, manage and controlthe Premises and conduct the business thereof, (C) maintain and restorethe Premises, (D) make all necessary or proper repairs, renewals andreplacements and such useful Alterations thereto and thereon as the Mortgageemay deem advisable, (E) manage, lease and operate the Premises and carryon the business thereof and exercise all rights and powers of the Mortgagorwith 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 suchtaking of possession, entry, removal or holding, operation or management exceptthat any amounts so received by the Mortgagee shall be applied in accordancewith the provisions of the Indenture;

#####  

##### (iii)                               withor without entry, personally or by its agents or attorneys, (A) sell theMortgaged Property and all estate, right, title and interest, claim and demandtherein at one or more sales in one or more parcels, in accordance with theprovisions of Section 11.3 or (B) institute and prosecuteproceedings for the complete or partial foreclosure of the Lien and securityinterests created and evidenced hereby; or

#####  

##### (iv)                              takesuch steps to protect and enforce its rights whether by action, suit orproceeding at law or in equity for the specific performance of any covenant,condition or agreement in the Indenture, the Notes and the CollateralDocuments, or in aid of the execution of any power granted in this Mortgage, orfor any foreclosure hereunder, or for the enforcement of any other appropriatelegal or equitable remedy or otherwise as the Mortgagee shall elect.

#####  

## SECTION 11.3  Sale of Mortgaged Property ifEvent of Default Occurs; Proceeds of Sale.

##  

##### (i)                                     Ifany Event of Default shall have occurred and be continuing, the Mortgagee mayinstitute an action to foreclose this Mortgage or take such other action as maybe permitted and available to the Mortgagee at law or in equity for theenforcement of the Indenture and the Notes and realization on the MortgagedProperty and proceeds thereon through power of sale or to final judgment andexecution thereof for the Secured Obligations, and in furtherance thereof theMortgagee may sell the Mortgaged Property at

#####  

25

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##### one or more sales,as an entirety or in parcels, at such time and place, upon such terms and aftersuch notice thereof as may be required or permitted by law or statute or inequity.  The Mortgagee may execute and deliverto the purchaser at such sale a conveyance of the Mortgaged Property in feesimple and an assignment or conveyance of all the Mortgagor’s Interest in theLeases and the Mortgaged Property, each of which conveyances and assignmentsshall contain recitals as to the Event of Default upon which the execution ofthe power of sale herein granted depends, and the Mortgagor hereby constitutesand appoints the Mortgagee the true and lawful attorney in fact of theMortgagor to make any such recitals, sale, assignment and conveyance, and allof the acts of the Mortgagee as such attorney in fact are hereby ratified andconfirmed.  The Mortgagor agrees thatsuch recitals shall be binding and conclusive upon the Mortgagor and that anyassignment or conveyance to be made by the Mortgagee shall divest the Mortgagorof all right, title, interest, equity and right of redemption, including anystatutory redemption, in and to the Mortgaged Property.  The power and agency hereby granted arecoupled with an interest and are irrevocable by death or dissolution, orotherwise, and are in addition to any and all other remedies which theMortgagee may have hereunder, at law or in equity.  So long as the Secured Obligations, or anypart thereof, remain unpaid, the Mortgagor agrees that possession of theMortgaged Property by the Mortgagor, or any person claiming under theMortgagor, shall be as tenant, and, in case of a sale under power or uponforeclosure as provided in this Mortgage, the Mortgagor and any person inpossession under the Mortgagor, as to whose interest such sale was not madesubject, shall, at the option of the purchaser at such sale, then become and betenants holding over, and shall forthwith deliver possession to such purchaser,or be summarily dispossessed in accordance with the laws applicable to tenantsholding over.  In case of any sale underthis Mortgage by virtue of the exercise of the powers herein granted, orpursuant to any order in any judicial proceeding or otherwise, the MortgagedProperty may be sold as an entirety or in separate parcels in such manner ororder as the Mortgagee in its sole discretion may elect.  One or more exercises of powers hereingranted shall not extinguish or exhaust such powers, until the entire MortgagedProperty is sold or all amounts secured hereby are paid in full.

#####  

##### (ii)                                  Inthe 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, ifnot previously due and payable, shall, at the option of the Mortgagee, immediatelybecome due and payable, anything in this Mortgage to the contrary notwithstanding.

#####  

##### (iii)                               Theproceeds 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 thisMortgage, whether under the provisions of this Article XI orotherwise, shall be applied in accordance with the provisions of the Indenture;

#####  

##### (iv)                              TheMortgagee may bid for and acquire the Mortgaged Property or any part thereof atany sale made under or by virtue of this Article XI and, in lieu ofpaying cash therefor, may make settlement for the purchase price by creditingagainst the purchase price the unpaid amounts (whether or not then due andowing) in respect of the Secured Obligations, after deducting from the salesprice the expense of the sale and the reasonable costs of the action orproceedings and any other sums that the Mortgagee is authorized to deduct underthis Mortgage.

#####  

##### (v)                                 TheMortgagee may adjourn from time to time any sale by it to be made under or byvirtue hereof by announcement at the time and place appointed for such sale orfor such adjourned sale or sales, and, the Mortgagee, without further notice orpublication, may make such sale at the time and place to which the same shallbe so adjourned.

#####  

26

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

#####  

## SECTION 11.4  AdditionalRemedies in Case of an Event of Default.

##  

##### (i)                                     TheMortgagee shall be entitled to recover judgment as aforesaid either before,after or during the pendency of any proceedings for the enforcement of theprovisions hereof, and the right of the Mortgagee to recover such judgmentshall not be affected by any entry or sale hereunder, or by the exercise of anyother right, power or remedy for the enforcement of the provisions hereof, orthe foreclosure of, or absolute conveyance pursuant to, this Mortgage.  In case of proceedings against the Mortgagorin insolvency or bankruptcy or any proceedings for its reorganization orinvolving the liquidation of its assets, the Mortgagee shall be entitled toprove the whole amount of principal and interest and other payments, chargesand costs due in respect of the Secured Obligations to the full amount thereofwithout deducting therefrom any proceeds obtained from the sale of the whole orany part of the Mortgaged Property; provided, however, that in nocase shall the Mortgagee receive a greater amount than the aggregate of suchprincipal, interest and such other payments, charges and costs (with interestat the Default Rate) from the proceeds of the sale of the Mortgaged Propertyand the distribution from the estate of the Mortgagor.

#####  

##### (ii)                                  Anyrecovery of any judgment by the Mortgagee and any levy of any execution underany judgment upon the Mortgaged Property shall not affect in any manner or toany extent the Lien and security interests created and evidenced hereby uponthe Mortgaged Property or any part thereof, or any conveyances, powers, rightsand remedies of the Mortgagee hereunder, but such conveyances, powers, rightsand remedies shall continue unimpaired as before.

#####  

##### (iii)                               Anymonies collected by the Mortgagee under this Section 11.4 shall beapplied in accordance with the provisions of Section 11.3(iii).

#####  

## SECTION 11.5  LegalProceedings After an Event of Default.

##  

##### (i)                                     Afterthe occurrence and during the continuance of any Event of Default and immediatelyupon the commencement of any action, suit or legal proceedings to obtainjudgment for the Secured Obligations or any part thereof, or of any proceedingsto foreclose the Lien and security interest created and evidenced hereby orotherwise enforce the provisions hereof or of any other proceedings in aid ofthe enforcement hereof, the Mortgagor shall enter its voluntary appearance insuch action, suit or proceeding.

#####  

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

#####  

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##### (iii)                               TheMortgagor shall not (A) at any time insist upon, or plead, or in anymanner whatsoever claim or take any benefit or advantage of any stay orextension or moratorium law, any exemption from execution or sale of theMortgaged Property or any part thereof, wherever enacted, now or at any timehereafter 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 orhereafter in force providing for the valuation or appraisal of the MortgagedProperty, or any part thereof, prior to any sale or sales of the MortgagedProperty which may be made pursuant to this Mortgage, or pursuant to anydecree, judgment or order of any court of competent jurisdiction or(C) after any such sale or sales, claim or exercise any right under anystatute heretofore or hereafter enacted to redeem the property so sold or anypart thereof.  To the extent permitted byapplicable law, the Mortgagor hereby expressly (A) waives all benefit oradvantage of any such law or laws, including, without limitation, any statuteof limitations applicable to this Mortgage, (B) waives all rights to have theMortgaged Property marshalled on any foreclosure of this Mortgage, (C) waivesany and all rights to trial by jury in any action or proceeding related to theenforcement hereof, (D) waives any objection which it may now or hereafterhave to the laying of venue of any action, suit or proceeding brought inconnection with this Mortgage and further waives and agrees not to plead thatany such action, suit or proceeding brought in any such court has been broughtin an inconvenient forum and (E) covenants not to hinder, delay or impede theexecution of any power granted or delegated to the Mortgagee by this Mortgagebut to suffer and permit the execution of every such power as though no suchlaw or laws had been made or enacted. The Mortgagee shall not be liable for any incorrect or improper paymentmade pursuant to this Article XI in the absence of gross negligenceor willful misconduct.

#####  

## SECTION 11.6  RemediesNot Exclusive.  No remedy conferredupon or reserved to the Mortgagee by this Mortgage is intended to be exclusiveof any other remedy or remedies, and each and every such remedy shall becumulative and shall be in addition to every other remedy given under thisMortgage or now or hereafter existing at law or in equity.  Any delay or omission of the Mortgagee toexercise any right or power accruing on any Event of Default shall not impairany such right or power and shall not be construed to be a waiver of oracquiescence in any such Event of Default. Every power and remedy given by this Mortgage may be exercised from timeto time concurrently or independently, when and as often as may be deemedexpedient by the Mortgagee in such order and manner as the Mortgagee, in itssole discretion, may elect.  If theMortgagee accepts any monies required to be paid by the Mortgagor under thisMortgage after the same become due, such acceptance shall not constitute awaiver of the right either to require prompt payment, when due, of all othersums secured by this Mortgage or to declare an Event of Default with regard tosubsequent defaults.  If the Mortgageeaccepts any monies required to be paid by the Mortgagor under this Mortgage inan amount less than the sum then due, such acceptance shall be deemed an acceptanceon account only and on the condition that it shall not constitute a waiver ofthe obligation of the Mortgagor to pay the entire sum then due, and theMortgagor’s failure to pay the entire sum then due shall be and continue to bea default hereunder notwithstanding acceptance of such amount on account.

##  

## SECTION 11.7  SpecialLouisiana Provisions.

##  

##### (i)                                     Withoutlimiting the generality of the foregoing, should one or more Events of Defaultoccur or exist and be continuing under this Mortgage, as provided above, theMortgagee, at its option, may exercise any one or more of the following rightsand remedies, in addition to any other rights and remedies provided by law andunder this Mortgage to the greatest extent permitted by applicable Louisianalaw.  Nothing contained herein shall beconstrued as constituting the Mortgagee as mortgagee in possession in absenceof the actual taking of possession of the Premises by the Mortgagee.

#####  

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##### (ii)                                  TheMortgagee shall have the right, at its sole option, to accelerate the maturityand demand immediate payment in full of any and all of the SecuredObligations.  The Mortgagee shall thenhave the right to commence appropriate foreclosure proceedings against theMortgaged Property and against the Mortgagor’s rights as provided in thisMortgage.

#####  

##### (iii)                               Inthe event that the Mortgagee elects to commence appropriate Louisianaforeclosure proceedings under this Mortgage, the Mortgagee may cause theMortgaged Property, or any part or parts thereof, to be immediately seized andsold, whether in term of court or in vacation, under ordinary or executoryprocess, in accordance with applicable Louisiana law, to the highest bidder forcash, with or without appraisement, and without the necessity of makingadditional demand upon or notifying the Mortgagor or placing the Mortgagor indefault, all of which are expressly waived.

#####  

##### (iv)                              Forpurposes of foreclosure under Louisiana executory process procedures, theMortgagor 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 contemplatedhereunder.  The Mortgagor furtherconfesses judgment and acknowledges to be indebted unto and in favor of theMortgagee in the amount of all future advances that the Mortgagee may make onthe Mortgagor’s behalf pursuant to this Mortgage, together with interestthereon.  To the extent permitted underapplicable Louisiana law, the Mortgagor additionally waives:  (1) the benefit of appraisal as provided inArticles 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 demandand three (3) days’ delay provided under Articles 22639 and 2721 of theLouisiana Code of Civil Procedure; (3) the notice of seizure as provided underArticles 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 LouisianaCode of Civil Procedure and all other Articles not specifically mentionedabove.  The Mortgagor further agrees thatany declaration of fact made by authentic act before a Notary Public and twowitnesses, by a Person declaring that such facts are within his or herknowledge, shall constitute authentic evidence of such facts for purposes offoreclosure 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)                                 Shouldany or all of the Mortgaged Property be seized as an incident to an action forthe recognition or enforcement of this Mortgage, by executory process,sequestration, attachment, writ of fieri facias or otherwise, the Mortgagorhereby agrees that the court issuing any such order shall, if requested by theMortgagee, appoint the Mortgagee, or any agent designated by the Mortgagee orany Person named by the Mortgagee at the time such seizure is requested, or anytime thereafter, as Keeper of the Mortgaged Property as provided under La. R.S.9:5136, et seq.  Such a Keeper shall beentitled to reasonable compensation.  TheMortgagor agrees to pay the reasonable fees of such Keeper which compensationto the Keeper shall also be secured by this Mortgage in the form of any futureadvances as provided in this Mortgage.

#####  

##### (vi)                              Shouldit become necessary for the Mortgagee to foreclose under this Mortgage, alldeclarations of fact, which are made under an authentic act before a NotaryPublic in the presence of two witnesses, by a person declaring such facts tolie within his or her knowledge, shall constitute authentic evidence forpurposes 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)                           Shouldone or more Events of Default occur or exist under this Mortgage, the Mortgageeshall have the additional right, at its sole option, to separately sell theaforesaid rights, or any part of parts thereof, at private or publiccompensation, or on credit, or for future delivery, without the assumption ofany credit risk.  The sale of theaforesaid rights may be without appraisement, the benefit of which is alsoexpressly waived by the Mortgagor.  TheMortgagee may exercise any other remedies with regard to the Mortgagor’s rightsas may be authorized under the Louisiana Commercial Laws (La. R.S. 10:9-101, etseq.).

 

##### (viii)                        Tothe extent provided by law, and in the event of foreclosure under thisMortgage, 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 applicableto the foreclosed Mortgaged Property upon transfer of the Mortgaged Propertyshall 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) ortransferee(s) to reject such insurance coverage and/or rights at its or theirsole option and election.

#####  

##### (ix)                                TheMortgagee may, in addition to or in lieu of the foregoing remedies, in theMortgagee’s sole discretion, commence an appropriate action against theMortgagor seeking specific performance of any covenant contained in thisMortgage or in aid of the execution or enforcement of any power in thisMortgage granted.

#####  

##### (x)                                   Exceptas may be prohibited by applicable law, all of the Mortgagee’s rights andremedies, whether evidenced by this Mortgage or by any other writing, shall becumulative and may be exercised singularly or concurrently.  Election by the Mortgagee to pursue anyremedy shall not exclude pursuit of any other remedy, and an election to makeexpenditures or to take action to perform an obligation of the Mortgagor underthis Mortgage, after the Mortgagor’s failure to perform shall not affect theMortgagee’s right to declare a default and exercise its remedies.  Nothing under this Mortgage or otherwiseshall be construed so as to limit or restrict the rights and remedies availableto the Mortgagee following an Event of Default, or in any way to limit orrestrict the rights and abilities of the Mortgagee to proceed directly againstMortgagor and/or against any other co-maker, guarantor, surety or endorser ofthe Secured Obligations, and/or to proceed against any other collateraldirectly or indirectly securing the Secured Obligations.

#####  

# ARTICLE XII

#  

# SECURITY AGREEMENT AND FIXTURE FILING

#  

## SECTION 12.1  SecurityAgreement.

##  

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

##  

## (ii) The remedies for any violation of the covenants, terms andconditions of the agreements herein contained shall be as prescribed herein orby general Louisiana law or, as to such part of the

##  

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## securitywhich is also reflected in any financing statement filed to perfect thesecurity interest herein created, by the specific statutory provisions now orhereinafter enacted and specified in the Louisiana Commercial Laws, all atMortgagee’s sole election.  The mentionin any financing statement of (1) the rights in or the proceeds of any fire orhazard insurance policy, or (2) any award in eminent domain proceedings for ataking or for loss of value, or (3) Mortgagor’s interest as lessor in anypresent or future lease or rights to income growing out of the use or occupancyof the Mortgaged Property whether pursuant to lease or otherwise, shall neverbe construed as in any way altering any of the rights of Mortgagee under thisMortgage or impugning the priority of the Mortgagee’s lien granted hereby or byany other recorded document.  Rather,such mention in the financing statement is declared to be for the protection ofthe Mortgagee in the event any court or judge shall at any time hold withrespect to (1), (2) and (3) above, that notice of Mortgagee’s priority ofinterest to be effective against a particular class of persons, including, butnot limited to, the Federal Government and any subdivisions or entity of theFederal Government, must be filed with the clerk of court of any parish (or St.Martin Parish Recorder of Mortgages) pursuant to Section 9-401 of the LouisianaCommercial Laws.

##  

## SECTION 12.2  FixtureFiling.  From the date of itsrecording, this Mortgage shall be effective as a fixture financing statementwith respect to all goods constituting part of the Mortgaged Property which areto become fixtures related to the Land. For this purpose, the following information is set forth:

##  

##### (a)  Nameand Address of Debtor:

#####  

JalouBreaux Bridge, LLC

1869Mills HighwayBreaux Bridge, Louisiana 70517

 

and

 

##### (b)  Nameand Address of Secured Party:

#####  

WellsFargo Bank, National AssociationCorporate Trust Services 213 Court Street, Suite 703Middletown, Connecticut 06457

 

##### (c)  Thisdocument covers goods which are to become fixtures.  All items that are fixtures on the date ofthis Mortgage shall be subject to the mortgage Lien granted hereunder.

#####  

# ARTICLE XIII

#  

# FURTHER ASSURANCES

#  

## SECTION 13.1  RecordingDocumentation To Assure Security. The Mortgagor shall, forthwith after the execution and delivery hereofand thereafter, from time to time, cause this Mortgage and any financingstatement, continuation statement or similar instrument relating to any thereofor to any property

##  

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## intendedto be subject to the Lien hereof to be filed, registered and recorded in suchmanner and in such places as may be required by any present or future law in orderto publish notice of and fully to protect the validity and priority thereof orthe Lien hereof purported to be created upon the Mortgaged Property and theinterest and rights of the Mortgagee therein. The Mortgagor shall pay or cause to be paid all taxes and fees incidentto such filing, registration and recording, and all reasonable expensesincident to the preparation, execution and acknowledgment thereof, and of anyinstrument of further assurance, and all Federal or state stamp taxes or othertaxes, duties and charges arising out of or in connection with the executionand delivery of such instruments.

##  

## SECTION 13.2  FurtherActs.  The Mortgagor shall, at thesole cost and expense of the Mortgagor, do, execute, acknowledge and deliverall and every such further acts, deeds, conveyances, mortgages, assignments,notices of assignment, transfers, financing statements, continuationstatements, instruments and assurances as the Mortgagee shall from time to timereasonably request, which may be necessary in the judgment of the Mortgageefrom time to time to assure, perfect, convey, assign, mortgage, transfer andconfirm unto the Mortgagee, the property and rights hereby conveyed or assignedor which the Mortgagor may be or may hereafter become bound to convey or assignto the Mortgagee or for carrying out the intention or facilitating theperformance of the terms hereof or the filing, registering or recordinghereof.  Without limiting the generalityof the foregoing, in the event that the Mortgagee desires to exercise anyremedies, consensual rights or attorney-in-fact powers set forth in thisMortgage and determines it necessary to obtain any approvals or consents of anyGovernmental Authority or any other Person therefor, then, upon the reasonablerequest of the Mortgagee, the Mortgagor agrees to use its reasonable efforts toassist and aid the Mortgagee to obtain as soon as practicable any necessary approvalsor 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 anyaction required to be executed or taken by the Mortgagor under this Section13.2 to the extent same is necessary to maintain perfection of the Liengranted to Mortgagee hereunder or (ii) such failure shall constitute an Eventof Default, to execute or take any action required to be executed or taken bythe Mortgagor under this Section 13.2 (other than the type described inclause (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 asthe attorney-in-fact for the Mortgagor, such power of attorney being coupledwith an interest and is irrevocable.

##  

## SECTION 13.3  AdditionalSecurity.  Without notice to orconsent of the Mortgagor and without impairment of the Lien and rights createdby this Mortgage, the Mortgagee may accept (but the Mortgagor shall not beobligated to furnish) from the Mortgagor or from any other Person, additionalsecurity for the Secured Obligations. Neither the giving hereof nor the acceptance of any such additionalsecurity shall prevent the Mortgagee from resorting, first, to such additionalsecurity, and, second, to the security created by this Mortgage withoutaffecting the Mortgagee’s Lien and rights under this Mortgage.

##  

# ARTICLE XIV

#  

# MISCELLANEOUS

#  

## SECTION 14.1  CovenantsTo Run with the Land.  All of thegrants, covenants, terms, provisions and conditions in this Mortgage shall runwith the Land and shall apply to, and bind the successors

##  

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## andassigns of, the Mortgagor.  If thereshall be more than one mortgagor with respect to the Mortgaged Property, thecovenants and warranties hereof shall be joint and several.

##  

## SECTION 14.2  NoMerger.  The rights andestate created by this Mortgage shall not, under any circumstances, be held tohave merged into any other estate or interest now owned or hereafter acquiredby the Mortgagee unless the Mortgagee shall have consented to such merger inwriting, such consent not to be unreasonably withheld.

##  

## SECTION 14.3  ConcerningMortgagee.

##  

##### (i)                                     TheMortgagee has been appointed as trustee pursuant to the Indenture.  The actions of the Mortgagee hereunder aresubject 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 fromtaking action (including, without limitation, the release or substitution of theMortgaged Property), in accordance with this Mortgage and the Indenture.  The Mortgagee may employ agents andattorneys-in-fact in connection herewith and shall not be liable for thenegligence or misconduct of any such agents or attorneys-in-fact selected by itin good faith.  The Mortgagee may resignand a successor Mortgagee may be appointed in the manner provided in theIndenture.  Upon the acceptance of anyappointment as the Mortgagee by a successor Mortgagee, that successor Mortgageeshall thereupon succeed to and become vested with all the rights, powers,privileges and duties of the retiring Mortgagee under this Mortgage, and theretiring Mortgagee shall thereupon be discharged from its duties andobligations under this Mortgage.  Afterany retiring Mortgagee’s resignation, the provisions hereof shall inure to itsbenefit as to any actions taken or omitted to be taken by it under thisMortgage while it was the Mortgagee.

#####  

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

#####  

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

#####  

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

#####  

## SECTION 14.4  MortgageeMay Perform; Mortgagee Appointed Attorney-in-Fact.  If the Mortgagor shall fail to perform anycovenants contained in this Mortgage, subject to any applicable grace periodsor contest rights permitted pursuant to Article IX hereof or asotherwise permitted by any Collateral Document (including, without limitation,the Mortgagor’s covenants to (i) pay the premiums in respect of

##  

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## allrequired insurance policies hereunder, (ii) pay Charges, (iii) make repairs,(iv) discharge Liens or (v) pay or perform any obligations of the Mortgagorunder any Mortgaged Property) or if any warranty on the part of the Mortgagorcontained herein shall be breached, the Mortgagee may (but shall not beobligated to) do the same or cause it to be done or remedy any such breach, andmay expend funds for such purpose; provided, however, that theMortgagee 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 orperform as and when required hereby and which the Mortgagor does not contest inaccordance with the provisions of Article IX hereof.  Any and all amounts reasonably so expended bythe Mortgagee shall be paid by the Mortgagor in accordance with the provisionsof Section 14.5 hereof.  Neitherthe provisions of this Section 14.4 nor any action taken by theMortgagee pursuant to the provisions of this Section 14.4 shall preventany such failure to observe any covenant contained in this Mortgage nor anybreach of warranty from constituting an Event of Default.  Upon the occurrence and during thecontinuance of an Event of Default the Mortgagor hereby appoints the Mortgageeits attorney-in-fact, with full authority in the place and stead of theMortgagor and in the name of the Mortgagor to take any action and to executeany instrument consistent with the terms hereof and the other CollateralDocuments which the Mortgagee may deem necessary or advisable to accomplish thepurposes hereof.  The foregoing grant ofauthority is a power of attorney coupled with an interest and such appointmentshall be irrevocable for the term hereof. The Mortgagor hereby ratifies all that such attorney shall lawfully door cause to be done by virtue hereof.

##  

## SECTION 14.5  Expenses  The Mortgagor will upon demand pay to theMortgagee the amount of any and all reasonable costs and expenses, includingthe reasonable fees and expenses of its counsel and the reasonable fees andexpenses of any experts and agents which the Mortgagee may incur in connectionwith (i) any action, suit or other proceeding affecting the Mortgaged Propertyor any part thereof commenced, in which action, suit or proceeding theMortgagee is made a party or participates or in which the right to use theMortgaged Property or any part thereof is threatened, or in which it becomesnecessary in the judgment of the Mortgagee to defend or uphold the Lien hereof(including, without limitation, any action, suit or proceeding to establish oruphold the compliance of the Mortgaged Property with any Requirements of Law),(ii) the collection of the Secured Obligations, (iii) the enforcementand 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 anySecured Party hereunder or (vi) the failure by the Mortgagor to perform orobserve any of the provisions hereof. All amounts expended by the Mortgagee and payable by the Mortgagor underthis Section 14.5 shall be due upon demand therefor (together withinterest thereon accruing at the Default Rate during the period from andincluding the date on which such funds were so expended to the date ofrepayment) and shall be part of the Secured Obligations.  The Mortgagor’s obligations under this Section 14.5shall survive the termination hereof and the discharge of the Mortgagor’s otherobligations under this Mortgage.

##  

## SECTION 14.6  Indemnity.

##  

##### (i)                                     TheMortgagor agrees to indemnify, pay and hold harmless the Mortgagee and each ofthe other Secured Parties and the officers, directors, employees, agents andAffiliates 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 ordisbursements of any kind or nature whatsoever (including, without limitation,the reasonable fees and disbursements of counsel for such Indemnitees inconnection with any investigative, administrative or judicial proceeding,commenced or threatened, whether or not

#####  

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##### such Indemniteeshall be designated a party thereto), which may be imposed on, incurred by orasserted against that Indemnitee, in any manner relating to or arising outhereof, the Indenture, the Notes, any other Collateral Document or any otherdocument evidencing the Secured Obligations (including, without limitation, anymisrepresentation by the Mortgagor in this Mortgage, the Indenture, the Notes,any other Collateral Document or any other document evidencing the SecuredObligations (the “Indemnified Liabilities”); provided, however,that the Mortgagor shall have no obligation to an Indemnitee hereunder withrespect to Indemnified Liabilities to the extent it has been determined by afinal decision (after all appeals and the expiration of time to appeal) by acourt of competent jurisdiction that such Indemnified Liabilities arose fromthe gross negligence or willful misconduct of that Indemnitee.  To the extent that the undertaking toindemnify, pay and hold harmless set forth in the preceding sentence may beunenforceable because it is violative of any law or public policy, theMortgagor shall contribute the maximum portion which it is permitted to pay andsatisfy under applicable law, to the payment and satisfaction of allIndemnified Liabilities incurred by the Indemnitees or any of them.

#####  

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

#####  

##### (iii)                               Reimbursement.  Any amount paid by any Indemnitee as to whichsuch Indemnitee has the right to reimbursement shall constitute SecuredObligations secured by the Mortgaged Property.

#####  

## SECTION 14.7  ContinuingSecurity Interest; Assignment.  ThisMortgage shall create a continuing Lien on and security interest in theMortgaged Property and shall (i) be binding upon the Mortgagor, itsrespective successors and assigns and (ii) inure, together with the rightsand remedies of the Mortgagee hereunder, to the benefit of the Mortgagee andthe other Secured Parties and each of their respective successors, transfereesand assigns.  No other Persons (including,without limitation, any other creditor of Mortgagor) shall have any interestherein or any right or benefit with respect hereto.  Without limiting the generality of theforegoing clause (ii), any Holder of the Notes may assign or otherwisetransfer any indebtedness held by it that is secured by this Mortgage to anyother Person, and such other Person shall thereupon become vested with all thebenefits 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 Propertyshall be released from the Lien of this Mortgage in accordance with theprovisions of Article 10 of the Indenture.

##  

## SECTION 14.9  Modificationin 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 effectiveunless the same shall be done in accordance with the terms of the Indenture andunless in writing and signed by the Mortgagee and Mortgagor.  Any amendment, modification or supplement ofor to any provision hereof, any waiver of any provision hereof and any consentto any departure by the Mortgagor from the terms of any provision hereof shallbe effective only in the specific instance and for the specific purpose forwhich made or given.  Except where noticeis specifically required by this Mortgage or any other Collateral Document, nonotice to or demand on the Mortgagor in any case shall entitle the Mortgagor toany other or further notice or demand in similar or other circumstances.

##  

35

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

##  

## SECTION 14.11  GOVERNING LAW; SERVICE OFPROCESS; WAIVER OF JURY TRIAL.  THISMORTGAGE SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED INACCORDANCE WITH, THE LAWS OF THE STATE IN WHICH THE PREMISES ARE LOCATED,WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS, EXCEPT TO THE EXTENT THATTHE VALIDITY OR PERFECTION OF THE SECURITY INTEREST HEREUNDER, OR REMEDIESHEREUNDER, IN RESPECT OF ANY PARTICULAR ITEM OR TYPE OF MORTGAGED PROPERTY AREGOVERNED BY THE LAWS OF A JURISDICTION OTHER THAN SUCH STATE.  THE MORTGAGOR AGREES THAT SERVICE OF PROCESSIN ANY PROCEEDING MAY BE EFFECTED BY MAILING A COPY THEREOF BY REGISTERED ORCERTIFIED MAIL (OR ANY SUBSTANTIALLY SIMILAR FORM OF MAIL), POSTAGE PREPAID, TOTHE ISSUER AT ITS ADDRESS SET FORTH IN THE INDENTURE OR AT SUCH OTHER ADDRESSOF WHICH THE MORTGAGEE SHALL HAVE BEEN NOTIFIED PURSUANT THERETO.  IF ANY AGENT APPOINTED BY THE MORTGAGORREFUSES TO ACCEPT SERVICE, THE MORTGAGOR HEREBY AGREES THAT SERVICE UPON IT BYMAIL SHALL CONSTITUTE SUFFICIENT NOTICE. NOTHING HEREIN SHALL AFFECT THE RIGHT TO SERVE PROCESS IN ANY OTHERMANNER PERMITTED BY LAW OR SHALL LIMIT THE RIGHT OF THE MORTGAGEE TO BRINGPROCEEDINGS AGAINST THE MORTGAGOR IN THE COURTS OF ANY OTHER JURISDICTION.  THE MORTGAGOR HEREBY IRREVOCABLY WAIVES ALLRIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUTOF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.

##  

## SECTION 14.12  Severabilityof Provisions.  Any provision hereofwhich is prohibited or unenforceable in any jurisdiction shall, as to suchjurisdiction, be ineffective to the extent of such prohibition orunenforceability without invalidating the remaining provisions hereof oraffecting the validity or enforceability of such provision in any other jurisdiction.

##  

## SECTION 14.13  Limitationon Interest Payable.  It is theintention of the parties to conform strictly to the usury laws, whether stateor Federal, that are applicable to the transaction of which this Mortgage is apart.  All agreements between theMortgagor and the Mortgagee, whether now existing or hereafter arising andwhether oral or written, are hereby expressly limited so that in no contingencyor event whatsoever shall the amount paid or agreed to be paid by the Mortgagorfor the use, forbearance or detention of the money to be loaned or advancedunder the Indenture or any related document or for the payment or performanceof any covenant or obligation contained herein or in the Indenture or any relateddocument exceed the maximum amount permissible under applicable Federal orstate usury laws.  If under any circumstanceswhatsoever fulfillment of any such provision, at the time performance of suchprovision shall be due, shall involve exceeding the limit of validityprescribed by law, then the obligation to be fulfilled shall be reduced to thelimit of such validity.  If under anycircumstances the Mortgagor shall have paid an amount deemed interest by applicablelaw, which would exceed the highest lawful rate, such

##  

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## amountthat would be excessive interest under applicable usury laws shall be appliedto the reduction of the principal amount owing in respect of the SecuredObligations and not to the payment of interest, or if such excessive interestexceeds 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 detentionof the principal under any extension of credit by the Mortgagee shall, to theextent permitted by applicable law, and to the extent necessary to precludeexceeding the limit of validity prescribed by law, be amortized, prorated,allocated and spread from the date hereof until payment in full of the SecuredObligations so that the actual rate of interest on account of such principalamounts is uniform throughout the term hereof.

##  

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

##  

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

##  

## SECTION 14.16  Waiverof Stay.

##  

##### (i)                                     TheMortgagor agrees that in the event that the Mortgagor or any property or assetsof the Mortgagor shall hereafter become the subject of a voluntary orinvoluntary proceeding under the Bankruptcy Code or the Mortgagor shallotherwise be a party to any Federal or state bankruptcy, insolvency, moratoriumor similar proceeding to which the provisions relating to the automatic stayunder Section 362 of the Bankruptcy Code or any similar provision in any suchlaw is applicable, then, in any such case, whether or not the Mortgagee hascommenced foreclosure proceedings under this Mortgage, the Mortgagee shall beentitled to relief from any such automatic stay as it relates to the exerciseof any of the rights and remedies (including, without limitation, any foreclosureproceedings) available to the Mortgagee as provided in this Mortgage, in anyother Collateral Document or any other document evidencing the SecuredObligations.

#####  

##### (ii)                                  TheMortgagee shall have the right to petition or move any court havingjurisdiction over any proceeding described in Section 14.16(i) hereoffor the purposes provided therein, and the Mortgagor agrees (i) not to opposeany 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 theMortgagee from time to time, in obtaining any relief requested by theMortgagee, including, without limitation, by filing any such petitions,supplemental petitions, requests for relief, documents, instruments or otheritems from time to time requested by the Mortgagee or any such court.

#####  

## SECTION 14.17  NoCredit for Payment of Taxes or Impositions.  The Mortgagor shall not be entitled to anycredit against the principal, premium, if any, or interest payable under theIndenture

##  

37

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## or theNotes, and the Mortgagor shall not be entitled to any credit against any othersums which may become payable under the terms thereof or hereof, by reason ofthe payment of any Charge on the Mortgaged Property or any part thereof.

##  

## SECTION 14.18  NoClaims Against the Mortgagee. Nothing contained in this Mortgage shall constitute any consent orrequest by the Mortgagee, express or implied, for the performance of any laboror services or the furnishing of any materials or other property in respect ofthe Premises or any part thereof, nor as giving the Mortgagor any right, poweror authority to contract for or permit the performance of any labor or servicesor the furnishing of any materials or other property in such fashion as wouldpermit the making of any claim against the Mortgagee in respect thereof or anyclaim that any Lien based on the performance of such labor or services or thefurnishing of any such materials or other property is prior to the Lien hereof.

##  

## SECTION 14.19  ObligationsAbsolute.  All obligations of theMortgagor hereunder shall be absolute and unconditional irrespective of:

##  

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

#####  

##### (ii)                                  anylack of validity or enforceability of the Indenture, the Notes or any otheragreement or instrument relating thereto;

#####  

##### (iii)                               anychange in the time, manner or place of payment of, or in any other term of, allor any of the Secured Obligations, or any other amendment or waiver of or anyconsent to any departure from the Indenture, the Notes or any other agreementor instrument relating thereto;

#####  

##### (iv)                              anyexchange, release or non-perfection of any other collateral, or any release oramendment or waiver of or consent to any departure from any guarantee, for allor any of the Secured Obligations;

#####  

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

#####  

##### (vi)                              anyother circumstances which might otherwise constitute a defense available to, ora discharge of, the Mortgagor.

#####  

## SECTION 14.20  LastDollars Secured.  ThisMortgage secures only a portion of the Indebtedness owing or which may becomeowing by the Mortgagor.  The partiesagree that any payments or repayments of such Indebtedness by the Mortgagorshall be and be deemed to be applied first to the portion of the Indebtednessthat is not secured hereby, it being the parties’ intent that the portion ofthe Indebtedness last remaining unpaid shall be secured hereby.

##  

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## 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 theundersigned Mortgagor in the presence of the undersigned Notary and theundersigned competent witnesses, who hereunto sign their names with Mortgagorafter reading of the whole.

 

 
| WITNESSES:                           | MORTGAGOR:                             |                |
|--------------------------------------|----------------------------------------|---------------------|
|                                 |                                   |                |   |
|                                 | JALOU BREAUX  BRIDGE, LLC,             |                |
|                                 | a Louisiana  limited liability company |                |
|                                 |                                   |                |   |
|                                 |                                   |                |   |
| /s/ Thomas E.  Hamilton              |                                   | By:                 | /s/ Ian M.  Stewart |   |
| Printed Name:  Thomas E. Hamilton    |                                   | Ian M. Stewart      |   |
|                                 |                                   | Authorized  Officer |   |
|                                 |                                   |                |   |
| /s/ Sterling W.  Dale, Jr.           |                                   |                |   |   |
| Printed Name:  Sterling W. Dale, Jr. |                                   |                |   |

 
|   |   /s/  Perryann P. Whitehurst |   |
|--------|-----------------------------------------|--------|
|   | Notary  Public                          |   |

 

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ScheduleA

 

Legal Description

 

That certain tract of land, together with all thebuildings and improvements thereon, situated in Sections 46, 121 and 122,Township 9 South, Range 5 East in Anse La Butte, St. Martin Parish, Louisiana,containing 16.86 arpents, more or less, and bounded Northerly in part by apublic road and in part by a servitude road, Southerly by property of TonyTortoris, et al, formerly Anatole Castille, Easterly by Lot No. 5 of platattached to Act No. 89612 of the official records of St. Martin Parish,Louisiana, and Westerly by Lot 3 of said plat; said property being known anddesignated as LOT 4 as shown on said plat of survey.

 

ScheduleB

 

Prior Liens

 

1.               Eachof the liens and other encumbrances excepted as being prior to the Lien hereofas set forth in Schedule B to the marked title insurance commitment issuedby Lawyers Title Insurance Corporation, dated as of the date hereof anddelivered to the Trustee on the date hereof, bearing Lawyers Title InsuranceCorporation reference number 40889 /dd relating to the real property describedin Schedule A attached hereto.

 

2.               Zoningand building ordinances and regulations, to the extent they constitutePermitted Liens of the type described in clause (4) of the definition thereof.

 

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ScheduleC

 

Leases Affecting theMortgaged Property

 

1.                                       Thatcertain Lease by and among Jalou Breaux Bridge, LLC (as Landlord) and Geraldand Pamela Moss Arceneaux (as Tenants), of record in COB 1386, Folio 636, EntryNo. 352560 of the official records of St. Martin Parish, Louisiana

 

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Exhibit1

 

FORM OF SUBORDINATION,NON-DISTURBANCEAND ATTORNMENT AGREEMENT

 

THIS SUBORDINATION, NON-DISTURBANCE AND ATTORNMENTAGREEMENT (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”).

 

RECITALS:

 

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

 

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

 

C.  Tenant hasagreed to subordinate the Lease to the Security Instruments and to the lienthereof and Trustee has agreed not to disturb Tenant’s possessory rights in theLeased Premises under the Lease on the terms and conditions hereinafter setforth.

 

AGREEMENT:

 

NOW, THEREFORE, the parties hereto mutually agree asfollows:

 

1.  Subordination.  Notwithstanding anything to the contrary setforth in the Lease, the Lease and the leasehold estate created thereby and allof Tenant’s rights thereunder are and shall at all times be subject andsubordinate 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 madethereunder, and to all renewals, modifications, consolidations, replacementsand extensions thereof.

 

### 2.  Nondisturbance.  So long as Tenant complies with theprovisions of this Agreement, pays all rents and other charges as specified inthe Lease and is not otherwise in default (beyond applicable notice and cureperiods) of any of its obligations and covenants pursuant to the Lease, Trusteeagrees for itself and its successors in interest and for any other personacquiring title to the Property through a foreclosure (an “Acquiring Party”),that Tenant’s possession of the Leased Premises as described in the Lease willnot be disturbed during the term of the Lease by reason of a foreclosure.  For purposes of this Agreement, a

###  

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### “foreclosure”shall include (but not be limited to) a sheriff’s or trustee’s sale under thepower of sale contained in the Security Instruments, the termination of anysuperior lease of the Property and any other transfer of the Landlord’sinterest in the Property under peril of foreclosure, including, withoutlimitation to the generality of the foregoing, an assignment or sale in lieu offoreclosure.

###  

### 3.  Attornment.  Tenant agrees to attorn to, accept andrecognize any Acquiring Party as the landlord under the Lease pursuant to theprovisions expressly set forth therein for the then remaining balance of theterm of the Lease, and any extensions thereof as made pursuant to theLease.  The foregoing provision shall beself-operative and shall not require the execution of any further instrument oragreement by Tenant as a condition to its effectiveness.

###  

### 4.  No Liability.Notwithstanding anything to the contrary contained herein or in the Lease, itis specifically understood and agreed that neither the Trustee, any receivernor 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 ofany prior landlord (including Landlord) to construct any improvements or boundby any covenant to construct any improvement either at the commencement of theterm of the Lease or upon any renewal or extension thereof or upon the additionof 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 oradditional rent which is payable on a monthly basis and which Tenant might havepaid for more than one (1) month in advance to any prior landlord (includingLandlord) or by any security deposit or other prepaid charge which Tenant mighthave paid in advance to any prior landlord (including Landlord); or

 

(e)  liable to Tenant hereunderor 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 theLease made without the written consent of Trustee; or

 

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

 

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

 

2

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### 5.  Certain Acknowledgmentsand Agreements by Tenant. (a) Tenant has notice that the Lease and the rents and all othersums due thereunder have been assigned to Trustee as security for the notessecured by the Security Instruments.  Inthe event Trustee notifies Tenant of the occurrence of a default under theSecurity Instruments and demands that Tenant pay its rents and all other sumsdue or to become due under the Lease directly to Trustee, Tenant shall honorsuch demand and pay its rent and all other sums due under the Lease directly toTrustee or as otherwise authorized in writing by Trustee.  Landlord irrevocably authorizes Tenant tomake the foregoing payments to Trustee upon such notice and demand.

###  

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

 

(c)  ThisAgreement satisfies any and all conditions or requirements in the Leaserelating to the granting of a non-disturbance agreement.

 

### 6.  Trustee to Receive DefaultNotices.  Tenant shall notify Trusteeof any default by Landlord under the Lease which would entitle Tenant to cancelthe Lease, and agrees that, notwithstanding any provisions of the Lease to thecontrary, no notice of cancellation thereof shall be effective unless Trusteeshall have received notice of default giving rise to such cancellation andshall have failed within sixty (60) days after receipt of such notice to curesuch default or, if such default cannot be cured within sixty (60) days, shallhave failed within sixty (60) days after receipt of such notice to commence andthereafter diligently pursue any action necessary to cure such default.

###  

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

###  

(a)  the Lease is in full forceand effect;

 

(b)  all requirements for thecommencement and validity of the Lease have been satisfied and there are nounfulfilled conditions to Tenant’s obligations under the Lease;

 

(c)  Tenant is not in defaultunder the Lease and has not received any uncured notice of any default byTenant under the Lease; to the best of Tenant’s knowledge, Landlord is not indefault under the Lease; no act, event or condition has occurred which withnotice or the lapse of time, or both, would constitute a default by Tenant orLandlord under the Lease; no claim by Tenant of any nature exists againstLandlord 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 dueunder the Lease;

 

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

 

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

 

3

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

 

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

 

(i)  Tenant has full authority toenter into this Agreement, which has been duly authorized by all necessaryaction.

 

### 8.  Notices.  All notices or other written communicationshereunder shall be deemed to have been properly given (i) upon delivery, ifdelivered in person with receipt acknowledged by the recipient thereof, (ii)one (1) Business Day (hereinafter defined) after having been deposited forovernight delivery with any reputable overnight courier service, or (iii) three(3) Business Days after having been deposited in any post office or maildepository regularly maintained by the United States Postal Service and sent byregistered or certified mail, postage prepaid, return receipt requested,addressed to the receiving party at its address set forth above or addressed assuch party may from time to time designate by written notice to the otherparties.  For purposes of this Section8, the term “Business Day” shall mean any day other than Saturday, Sundayor any other day on which banks are required or authorized to close in NewYork, New York.  Either party by notice tothe other may designate additional or different addresses for subsequentnotices or communications.

###  

### 9.  Successors.  The obligations and rights of the partiespursuant to this Agreement shall bind and inure to the benefit of thesuccessors, assigns, heirs and legal representatives of the respective parties;provided, however, that in the event of the assignment ortransfer of the interest of Trustee, all obligations and liabilities of Trusteeunder this Agreement shall terminate, and thereupon all such obligations andliabilities shall be the responsibility of the party to whom Trustee’s interestis assigned or transferred; and provided, further, that theinterest of Tenant under this Agreement may not be assigned or transferredwithout the prior written consent of Trustee. In addition, Tenant acknowledges that all references herein to Landlordshall mean the owner of the landlord’s interest in the Lease, even if saidowner shall be different from the Landlord named in the Recitals.

###  

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

###  

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

###  

(b)  In theevent that Trustee shall acquire title to the Leased Premises or the Property,Trustee shall have no obligation, nor incur any liability, beyond Trustee’sthen equity interest, if any, in the Leased Premises, and Tenant shall lookexclusively to such equity interest of Trustee, if any, in the Leased Premisesfor the payment and discharge of any obligations imposed upon Trustee hereunderor under the Lease, and Trustee is hereby released and relieved of any otherobligations hereunder and under the Lease.

 

4

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### 12.  Modification in Writing.  This Agreement may not be modified except byan agreement in writing signed by the parties hereto or their respectivesuccessors in interest.

###  

### 13.  Lien of SecurityInstruments.  Nothing contained inthis Agreement shall in any way impair or affect the lien created by theSecurity Instruments or the provisions thereof.

###  

### 14.  Compliance with Lease.  Tenant agrees that in the event there is anyinconsistency between the terms and provisions hereof and the terms and provisionsof the Lease, the terms and provisions hereof shall be controlling.

###  

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

###  

### 16.  Further Actions.  Tenant agrees at its own expense to executeand deliver, at any time and from time to time upon the request of Trustee orany Acquiring Party, such documents and instruments (in recordable form, ifrequested) as may be necessary or appropriate, in the opinion of Trustee or anyAcquiring Party, to fully implement or to further evidence the understandingsand agreements contained in this Agreement. Moreover, Tenant hereby irrevocably appoints and constitutes Trustee orany Acquiring Party as its true and lawful attorney-in-fact to execute anddeliver any such documents or instruments which may be necessary or appropriate,in the opinion of Trustee or any Acquiring Party, to implement or further evidencesuch understandings and agreements and which Tenant, after thirty (30) days’notice from Trustee or any Acquiring Party, has failed to execute and deliver.

###  

5

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IN WITNESS WHEREOF, Trustee and Tenant have dulyexecuted 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 theRecitals, having duly executed this Agreement as of the date first writtenabove, and as mortgagor, pledgor, assignor or debtor under the SecurityInstruments, hereby accepts and agrees for itself and its successors andassigns, (i) to be bound by the provisions of Section 5 hereof,(ii) that nothing contained in the foregoing Agreement (x) shall inany way be deemed to constitute a waiver by Trustee of any of its rights orremedies under the Security Instruments or (y) shall in any way be deemedto 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 forceand effect and must be complied with by Landlord.

 
|   |   |   | , a    |
|--------|--------|--------|--------|
|   |   |   |   |
|   |   |   |
|   |   |   |   |
|   | By:    |   |   |
|   |   | Name:  |   |
|   |   | Title: |   |
|        |        |        |        |  |

 

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ACKNOWLEDGMENT

 
| State of  |   | ) |
|-----------|--------|---|
| ) ss.:    |
| County of |   | ) |
|           |        |   |  |

 

[Local counsel toprovide appropriate acknowledgment]

 

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SCHEDULE A to EXHIBIT 1

 

Description of Real Property

 

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