MORTGAGE, * UNITED STATES OF AMERICA
ASSIGNMENT OF LEASES *
AND RENTS AND SECURITY * STATE OF LOUISIANA
AGREEMENT SECURING *
FUTURE ADVANCES * PARISH OF ORLEANS
*
BY *
*
C-M OF LOUISIANA, INC. *
BE IT KNOWN, that on this 11th day of May 1996, before me, the undersigned
Notary Public duly commissioned and qualified, and in the presence of the
witnesses hereinafter named and undersigned, personally came and appeared:
C-M OF LOUISIANA, INC.("MORTGAGOR") (Taxpayer I.D. No.______________), a
Louisiana corporation, represented herein by Robert A. Callaway, its
Secretary, duly authorized to appear herein by the Unanimous Written Consent
of the Sole Shareholder of Mortgagor, a multiple original of which is
attached hereto and made a part hereof, which has a mailing address of 711
Casino Magic Drive, Bay St. Louis, Mississippi 39520, who declared that
Mortgagor does by these presents declare and acknowledge an indebtedness
unto:
FIRST TRUST NATIONAL ASSOCIATION, AS INDENTURE TRUSTEE
("Mortgagee")(Taxpayer I.D. No. 41-0257700), a national association having a
place of business at 180 East Fifth Street, St. Paul, Minnesota 55101,
Attn.: Scott Strodthoff.
Recitals
A. Pursuant to that certain Indenture dated as of May 13, 1996 among
Casino Magic of Louisiana, Corp. (CASINO MAGIC LOUISIANA"), Mortgagor and
Jefferson Casino Corporation, both as Guarantors, and the Mortgagee (as
amended, amended and restated, supplemented or otherwise modified from time
to time, the "INDENTURE"), Casino Magic Louisiana issued its 11 1/2% Senior
Secured Notes due 1999 (as amended, amended and restated, supplemented or
otherwise modified from time to time, and including all 11 1/2% Senior
Secured Notes due 1999 issued in exchange or substitution therefor, the
"Notes") in the aggregate principal amount of $35 million.
B. Pursuant to Article XII of the Indenture, Mortgagor has guaranteed
(such guarantee by Mortgagor being hereinafter referred to as the
"Guarantee"), to the Noteholder(s) and to the Mortgagee, inter alia, the
Notes and the obligations of Casino Magic Louisiana under the Indenture and
the Notes.
C. Mortgagor is entering into this Mortgage, Assignment of Leases and
Rents and Security Agreement Securing Future Advances (the "Mortgage"), in
favor of Mortgagee for the benefit of the Mortgagee to secure the full and
punctual payment and performance of the Secured Obligations (as hereinafter
defined).
SECTION I - GRANTING CLAUSES
In order to secure all present and future Secured Obligations, all according
to the terms and tenor hereof, Mortgagor does by these presents specially
mortgage, affect and hypothecate, to inure to the use and benefit of
Mortgagee, the following described property (hereinafter collectively called
the "Mortgaged Property, to-wit:
(a) All those certain lots, pieces or parcels of land owned or hereafter
acquired by Mortgagor located in Bossier City, Parish of Bossier, State of
Louisiana, as more particularly described as follows, as the description of
the same may be amended, modified or supplemented from time to time, and all
and singular the reversions or remainders in and to said land and the
tenements, hereditaments, transferable development rights, servitude's,
easements (in gross and/or appurtenant), agreements, rights-of-way or use,
rights (including alley, drainage and any other rights to produce or share
in the production of anything from or attributable thereto) , privileges,
royalties and appurtenances to said land, now or hereafter belonging or in
anywise appertaining thereto, including any such right, title, interest in,
to or under any agreement or right granting, conveying or creating, for the
benefit of said land, any easement, servitude, development rights (including
"air rights"), water, water rights, riparian rights, mineral rights
(including rights in respect of oil, gas and other hydrocarbon substances),
right or license in any way affecting said land and/or other land and in, to
or under any streets, ways, alleys, vaults, gores or strips of land
adjoining said land or any parcel thereof, or in or to the air space over
said land, all rights of ingress and egress with respect to said land, and
all claims or demands of Mortgagor, either at law or in equity, in
possession or expectancy, of, in or to the same (all of the foregoing
hereinafter collectively referred to as the "Land"):
(1) TRACT "A". A TRACT OF LAND LOCATED IN SECTION 32,
T18N-R13W, BOSSIER CITY, BOSSIER PARISH, AND/OR SECTIONS 31, 32 OR 33,
T18N-R13W, CADDO PARISH, LOUISIANA. SAID TRACT BEING MORE FULLY
DESCRIBED AS FOLLOWS:
BEGINNING AT A FOUND 1/2" DIAMETER IRON ROD BEING THE SOUTHWEST CORNER OF
LOT 35, COOK SUBDIVISION, AS RECORDED IN BOOK 141, PAGE 11 OF THE CONVEYANCE
RECORDS OF BOSSIER PARISH, RUN THENCE SOUTH 65'05'05" EAST ALONG THE SOUTH
LINE OF SAID COOK SUBDIVISION A DISTANCE OF 384.69 FEET TO A FOUND 1/2"
DIAMETER IRON ROD,
THENCE RUN SOUTH 12'56'40" WEST A DISTANCE OF 150.37 FEET TO A FOUND 1/2"
DIAMETER CRIMP TOP IRON PIPE,
THENCE RUN SOUTH 60'12'49" EAST A DISTANCE OF 168.20 FEET TO A FOUND 5/8"
DIAMETER IRON ROD,
THENCE RUN SOUTH 26'06'32" WEST A DISTANCE OF 251.31 FEET TO A FOUND 1/2"
DIAMETER IRON ROD BEING ON THE NORTHERLY RIGHT-OF-WAY LINE OF WOODLAWN
STREET,
THENCE RUN NORTH 70'42'00" WEST ALONG THE NORTHERLY RIGHT-OF-WAY LINE OF
WOODLAWN STREET A DISTANCE OF 575.91 FEET TO A FOUND 1/2" DIAMETER IRON PIPE
BEING AT THE INTERSECTION OF THE NORTHERLY RIGHT OF-WAY LINE OF WOODLAWN
STREET WITH THE EASTERLY RIGHT-OF-WAY LINE OF KAYWOOD COURTS,
THENCE RUN NORTH 23'05'00" EAST ALONG THE EASTERLY RIGHT-OF-WAY LINE OF
KAYWOOD COURTS A DISTANCE OF 140.56 FEET TO A FOUND 1/2" DIAMETER IRON PIPE,
THENCE RUN NORTH 24'48'39" EAST ALONG THE EASTERLY RIGHT-OF-WAY LINE OF
KAYWOOD COURTS A DISTANCE OF 328.51 FEET TO THE POINT OF BEGINNING.
SAID TRACT CONTAINING 5.2319 ACRES.
(2) TRACT "B". A TRACT OF LAND LOCATED IN SECTION 32, T18N-R13W, BOSSIER
CITY, BOSSIER PARISH, AND/OR SECTIONS 31, 32 OR 33, T18N-R13W, CADDO PARISH,
LOUISIANA. SAID TRACT BEING MORE FULLY DESCRIBED AS FOLLOWS:
BEGINNING AT A FOUND 3/4" DIAMETER CRIMP TOP IRON PIPE BEING THE SOUTHEAST
CORNER OF LOT 8, KAYWOOD SUBDIVISION, AS RECORDED IN BOOK 339, PAGE 229 OF
THE CONVEYANCE RECORDS OF BOSSIER PARISH, RUN THENCE SOUTH 28'05'04" WEST A
DISTANCE OF 335.76 FEET TO A SET 1/2" DIAMETER IRON ROD BEING ON THE FORMER
NORTHERLY HIGH BANK OF THE RED RIVER,
THENCE RUN NORTHWESTERLY ALONG THE FORMER HIGH BANK OF THE RED RIVER A
DISTANCE OF 614.30 FEET, NORTH 55'22'23" WEST TO A FOUND 1" DIAMETER IRON
PIPE,
THENCE RUN NORTH 244849" EAST A DISTANCE OF 897.25 FEET TO A FOUND 1/2"
DIAMETER IRON ROD BEING ON THE SOUTH LINE OF LOT 34, COOK SUBDIVISION, AS
RECORDED IN BOOK 141, PAGE 11 OF THE CONVEYANCE RECORDS OF BOSSIER PARISH,
THENCE RUN SOUTH 65'02'25" EAST ALONG THE SOUTH LINE OF LOT 34, A DISTANCE
OF 9.58 FEET TO A FOUND 1/2" DIAMETER IRON ROD BEING ON THE WESTERLY RIGHT-
OF-WAY LINE OF KAYWOOD COURTS,
THENCE RUN SOUTH 24'47'37" WEST ALONG THE WESTERLY RIGHT-OF-WAY LINE OF
KAYWOOD COURTS A DISTANCE OF 329.85 FEET TO A FOUND 1/2" DIAMETER IRON PIPE,
THENCE RUN SOUTH 22'34'14" WEST ALONG THE WESTERLY RIGHT-OF-WAY LINE OF
KAYWOOD COURTS A DISTANCE OF 194.43 FEET TO A FOUND 5/8" DIAMETER IRON ROD
BEING AT THE INTERSECTION OF THE WESTERLY RIGHT-OF-WAY LINE OF KAYWOOD
COURTS WITH THE SOUTHERLY RIGHT-OF-WAY LINE OF WOODLAWN STREET,
THENCE RUN SOUTH 70'42'00" EAST ALONG THE SOUTHERLY RIGHT-OF-WAY LINE OF
WOODLAWN STREET A DISTANCE OF 5.17 FEET TO A FOUND 5/8" DIAMETER IRON ROD,
THENCE RUN SOUTH 19'1 8'00" WEST ALONG THE WEST LINE OF LOT 1, KAYWOOD
SUBDIVISION, UNIT 2, AS RECORDED IN BOOK 450, PAGE 113 OF THE CONVEYANCE
RECORDS OF BOSSIER PARISH, A DISTANCE OF 200.26 FEET TO A SET 1/2" DIAMETER
IRON ROD BEING THE SOUTHWEST CORNER OF LOT 1,
THENCE RUN SOUTH 70'42'00" EAST ALONG THE SOUTH LINE OF KAYWOOD SUBDIVISION
UNIT 2 AND KAYWOOD SUBDIVISION A DISTANCE OF 585.48 FEET TO THE POINT-OF-
BEGINNING,
AND ALL THAT LAND LYING BETWEEN THE SOUTHERLY MOST LINE OF SAID
DESCRIBED TRACT AND THE EXISTING HIGH BANK OF THE RED RIVER, AND LYING
BETWEEN THE PROJECTED LINES OF THE EASTERLY AND WESTERLY
BOUNDARIES OF SAID DESCRIBED TRACT,
SAID TOTAL TRACT CONTAINING 4.914 ACRES.
(3) TRACT "C". A TRACT OF LAND LOCATED IN SECTION 32, T18N-R13W, BOSSIER
CITY, BOSSIER PARISH, AND/OR SECTIONS 31, 32 OR 33, T18N-R13W, CADDO PARISH,
LOUISIANA, AND BEING A PORTION OF LOT 34, COOK SUBDIVISION, AS RECORDED IN
BOOK 141, PAGE 11, OF THE CONVEYANCE RECORDS OF BOSSIER PARISH. SAID TRACT
MORE FULLY DESCRIBED AS FOLLOWS:
BEGINNING AT A FOUND 1/2" DIAMETER IRON ROD BEING THE SOUTHWEST CORNER OF
LOT 34, RUN THENCE NORTH 29'35'39" EAST ALONG THE WEST LINE OF LOT 34 A
DISTANCE OF 165.24 FEET TO A FOUND 1/2" DIAMETER IRON PIPE BEING ON THE
SOUTH RIGHT-OF-WAY LINE OF INTERSTATE 20,
THENCE RUN SOUTH 82'32'09" EAST ALONG THE SOUTH RIGHT-OF-WAY LINE OF
INTERSTATE 20 A DISTANCE OF 58.03 FEET TO A FOUND 1/2" DIAMETER IRON PIPE
BEING ON THE WESTERLY RIGHT-OF-WAY LINE OF KAYWOOD COURTS,
THENCE RUN SOUTH 29'33'17" WEST ALONG THE WESTERLY RIGHT-OF-WAY LINE OF
KAYWOOD COURTS A DISTANCE OF 190.07 FEET TO A FOUND 1/2" DIAMETER IRON ROD
BEING ON THE SOUTH LINE OF LOT 34,
THENCE RUN NORTH 65'02'25" WEST ALONG THE SOUTH LINE OF LOT 34 A
DISTANCE OF 9.58 FEET TO A FOUND 1/2" DIAMETER IRON ROD,
THENCE RUN NORTH 55'34'42" WEST ALONG THE SOUTH LINE OF LOT 34 A
DISTANCE OF 44.49 FEET TO THE POINT OF BEGINNING,
SAID TRACT CONTAINING 0.22 ACRES.
(4) TRACT "D". A TRACT OF LAND LOCATED IN SECTION 32, T18N-R13W, BOSSIER
CITY, BOSSIER PARISH, AND/OR SECTIONS 31, 32 OR 33, T18N-R13W, CADDO PARISH,
LOUISIANA. SAID TRACT BEING MORE FULLY DESCRIBED AS FOLLOWS:
BEGINNING AT A FOUND 1/2" DIAMETER CRIMP TOP IRON PIPE BEING THE SOUTHWEST
CORNER OF LOT 114, RIVERSIDE SUBDIVISION AS RECORDED IN BOOK 60, PAGE 157 OF
THE CONVEYANCE RECORDS OF BOSSIER PARISH, LOUISIANA, RUN THENCE SOUTH 70-23-
37" EAST ALONG THE REAR LINE OF RIVERSIDE SUBDIVISION A DISTANCE OF 248.66
FEET TO A FOUND 1" DIAMETER IRON PIPE,
THENCE RUN SOUTH 29'01'37" WEST AND PARALLEL WITH THE EASTERLY LINE OF LOT
110 OF RIVERSIDE SUBDIVISION A DISTANCE OF 1021.25 FEET TO A FOUND 1"
DIAMETER IRON PIPE, BEING ON THE FORMER HIGH BANK OF THE RED RIVER,
THENCE RUN NORTH 62'19'02" WEST ALONG THE FORMER HIGH BANK OF THE RED RIVER
A DISTANCE OF 127.28 FEET TO A POINT, WHICH IS ON THE PROJECTION OF THE
WESTERLY LINE OF LOT 112, RIVERSIDE SUBDIVISION,
THENCE CONTINUE NORTH 64'07'56" WEST ALONG THE FORMER HIGH BANK OF THE RED
RIVER A DISTANCE OF 101.1 1 FEET TO A SET 1/2" DIAMETER IRON ROD, LOCATED ON
THE PROJECTION OF THE EASTERLY LINE OF LOT 8, KAYWOOD SUBDIVISION,
THENCE RUN NORTH 28'05'04" EAST A DISTANCE OF 335.76 FEET TO A FOUND 3/4"
DIAMETER CRIMP TOP IRON PIPE BEING THE SOUTHEAST CORNER OF LOT 8 KAYWOOD
SUBDIVISION AS RECORDED IN BOOK 339, PAGE 229 OF THE CONVEYANCE RECORDS OF
BOSSIER PARISH,
THENCE CONTINUE NORTH 28'05'04" EAST ALONG THE EASTERLY LINE OF LOT 8 A
DISTANCE OF 202.64 FEET TO A FOUND 2" DIAMETER IRON PIPE BEING THE NORTHEAST
CORNER OF LOT 8,
THENCE CONTINUE NORTH 28'05'04" EAST A DISTANCE OF 50.65 FEET TO A FOUND
1/2" DIAMETER IRON ROD,
THENCE RUN NORTH 26'06'32" EAST A DISTANCE OF 251.31 FEET TO A FOUND 5/8"
DIAMETER IRON ROD,
THENCE RUN NORTH 31'05'36" EAST A DISTANCE OF 149.25 FEET TO THE POINT OF
BEGINNING,
AND ALL THAT LAND LYING BETWEEN THE SOUTHERLY MOST LINE OF SAID DESCRIBED
TRACT AND THE EXISTING HIGH BANK OF THE RED RIVER, AND LYING BETWEEN THE
PROJECTED LINES OF THE EASTERLY AND WESTERLY BOUNDARIES OF SAID DESCRIBED
TRACT,
SAID TOTAL TRACT CONTAINING 5.753 ACRES.
(5) LOTS 1, 2 AND 4, KAYWOOD SUBDIVISION, UNIT NO. 2, A SUBDIVISION OF
BOSSIER PARISH, AND/OR CADDO PARISH, LOUISIANA AS PER PLAT RECORDED IN BOOK
450, PAGE 113 OF THE CONVEYANCE RECORDS OF BOSSIER PARISH, LOUISIANA,
(6) LOTS 6, 7 AND 8 KAYWOOD WOOD SUBDIVISION, A SUBDIVISION OF BOSSIER
PARISH, AND/OR CADDO PARISH, LOUISIANA, AS PER PLAT RECORDED IN BOOK 339,
PAGE 229 OF THE CONVEYANCE RECORDS OF BOSSIER PARISH, LOUISIANA.
(7) LOTS 110, 111 AND 112, RIVERSIDE SUBDIVISION, A
SUBDIVISION OF BOSSIER PARISH, AND/OR CADDO PARISH, LOUISIANA, AS PER
PLAT RECORDED IN BOOK 60, PAGE 157 OF THE CONVEYANCE RECORDS OF
BOSSIER PARISH, LOUISIANA, LESS A STRIP OF LAND SEVEN (7') FEET IN WIDTH
RUNNING BACK BETWEEN PARALLEL LINES ALONG THE ENTIRE EASTERLY SIDE
OF LOT 1 10.
The Land described in SUBSECTIONS I (a) (1) , (2) , (3) , (4) , (5) , (6)
AND (7) above is in accordance with the survey of Smith and Raley, Inc. ,
Consulting Engineers, made on August 23, 1991 and last revised on May 9,
1996, a copy of which is attached hereto.
Together with all the buildings and improvements situated on the above-
described Land and all appurtenances, rights, ways, privileges, servitude's,
prescriptions and advantages thereunto belonging or in anywise appertaining,
including, but without limitation, all component parts of the above-
described Land, and all component parts of any building or other
construction located on the above-described Land, now or hereafter a part of
or attached to said Land or used in connection therewith.
(b) All buildings, structures, facilities and other improvements now or
hereafter located on the Land, and all appurtenances, rights, ways,
privileges, servitude's, prescriptions and advantages thereunto belonging or
in anywise appertaining, including, but without limitation, all component
parts of the Land, and all component parts of any building or other
construction located on the Land, now or hereafter a part of or attached to
said immovable and all building material, building equipment, supplies and
fixtures of every kind and nature now or hereafter located on the Land or
attached to, contained in or used in connection with any such buildings,
structures, facilities or other improvements, and all appurtenances and
additions thereto and betterments, renewals, substitutions and replacements
thereof, owned by Mortgagor or in which Mortgagor has or shall acquire an
interest (all of the foregoing hereinafter collectively referred to as
"IMPROVEMENTS".
(c) All equipment (as defined in the Louisiana Commercial Laws, La. R.S.
10:1-101 ET SEQ. (the "UCC") now owned or hereafter acquired by the
Mortgagor or in which Mortgagor has or shall acquire an interest, wherever
situated, and now or hereafter located on, attached to, contained in or used
in connection with the properties referred to in granting clauses (a), (b),
(e) or (f) of this Section I, or placed on any part thereof, though not
attached thereto, including, but not limited to the following, to the extent
that the same are not Improvements: all machinery, apparatus, goods,
equipment, materials, fittings, fixtures, chattels and tangible personal
property and all appurtenances, accessories, parts, attachments, additions,
special tools and accessions now and hereafter affixed thereto or used in
connection therewith and betterments, renewals, substitutions and
replacements thereof and therefor, (all of the foregoing hereinafter
collectively referred to as the "IMPROVEMENTS") including all screens,
awnings, shades, blinds, curtains, draperies, carpets, rugs, furniture and
furnishings, heating, lighting, plumbing, ventilating, air conditioning,
refrigerating, incinerating and/or compacting plants, systems, fixtures and
equipment, elevators, hoists, stores, ranges, vacuum and other cleaning
systems, call systems, sprinkler systems and other fire prevention and
extinguishing apparatus and materials, motors, machinery, pipes, ducts,
conduits, dynamos, engines, compressors,, generators, boilers, stokers,
furnaces, pumps, tanks, appliances, equipment, fittings and fixtures (the
Land, the Improvements and the Equipment hereinafter collectively referred
to as the "PREMISES") . All funds, accounts, deposits, instruments,
documents, general intangibles, and notes or chattel paper arising from or
by virtue of any transactions related to the Premises; all permits,
licenses, franchises, certificates and other rights and privileges obtained
in connection with the Premises. Without limitation, Mortgagor hereby
grants to Mortgagee a security interest in and to all of Mortgagor's present
and future equipment" and general intangibles" (as defined in the UCC) in or
relating to the Premises, and Mortgagee shall have, in addition to all
rights and remedies provided herein, all of the rights and remedies of a
"secured party" under the UCC. This Mortgage constitutes and shall be
deemed to be a "security agreement" for all purposes of the UCC. If the
lien of this Mortgage is subject to a security interest covering any
property described in this granting clause (c), then all of the right, title
and interest of Mortgagor in and to any and all such property is hereby
assigned to Mortgagee, together with the benefits of all deposits and
payments now or hereafter made thereon by or on behalf of Mortgagor. It is
agreed that all Equipment is part and parcel of the Land and the
Improvements and appropriated to the use thereof and, whether affixed to the
Land and/or the Improvements or not, shall, for purposes of this Mortgage be
deemed conclusively to be real estate and mortgaged or otherwise conveyed or
encumbered hereby.
(d) All the leases, subleases, lettings and licenses and all other
contracts, bonds and agreements affecting the Premises and/or any other
property or rights conveyed or encumbered hereby, or any part thereof, now
or hereafter entered into, and all amendments, modifications, supplements,
additions, extensions and renewals thereof (all of the foregoing hereinafter
collectively called the "LEASES"), and all right, title and interest of
Mortgagor thereunder, including cash and securities deposited thereunder (as
down payments, security deposits or otherwise); the right to receive and
collect the rents, security deposits, income, proceeds, earnings, royalties,
revenues, issues and profits payable thereunder and the rights to enforce,
whether at law or in equity or by any other means, all provisions and
options thereof or thereunder (all of the foregoing hereinafter collectively
called the "RENTS"), and the right to apply the same to the payment and
performance of the Secured Obligations.
(e) Any and all moneys (other than cash received from Casino Magic Corp. as
payment for common stock with no privileges, preferences or rights to
redemption or repayment), goods, accounts, chattel paper, general
intangibles, documents, instruments, contract rights and other real and
personal property (including property exchanged therefor), of every kind and
nature, which may from time to time be subjected to the lien hereof by
Mortgagor through a supplement to this Mortgage or otherwise, or by anyone
on its behalf or with its consent, or which may come into the possession of
or be subject to the control of Mortgagee pursuant to this Mortgage, it
being the intention and agreement of Mortgagor that all property hereafter
acquired (including pursuant to any so called "tax sale" or foreclosure of
any lien) or constructed by Mortgagor with respect to the Premises shall be
subject to the lien and security interest of this Mortgage and shall
forthwith upon acquisition or construction thereof by Mortgagor and without
any act or deed by Mortgagor be subject to the lien and security interest of
this Mortgage as if such property were now owned by Mortgagor and were
specifically described in this Mortgage and conveyed or encumbered hereby or
pursuant hereto, and Mortgagee is hereby authorized to receive any and all
such property as and for additional security hereunder.
(f) All unearned premiums under insurance policies now or hereafter
obtained by Mortgagor, all proceeds (including funds, accounts, deposits,
instruments, general intangibles, notes or chattel paper) of the conversion,
voluntary or involuntary, of any of the property described in these granting
clauses into cash or other liquidated claims, including proceeds of hazard,
title and other insurance, whether attributable to the insurance loss of the
Premises or otherwise, as provided in Louisiana Revised Statutes or
otherwise, and proceeds received pursuant to any sales or rental agreements
of Mortgagor in respect of the property described in these granting clauses,
and all judgments, damages, awards, settlements and compensation (including
interest thereon) heretofore or hereafter made to the present and all
subsequent owners of the Premises and/or any other property or rights
conveyed or encumbered hereby for any injury to or decrease in the value
thereof for any reason, or by any governmental or other lawful authority for
the taking by eminent domain, condemnation or otherwise of all or any part
thereof, including awards for any change of grade of streets.
The Mortgaged Property is to remain so specially mortgaged, affected and
hypothecated unto and in favor of the Mortgagee until the full and final
payment or discharge of the Secured Obligations, and the Mortgagor is herein
and hereby bound and obligated not to sell or alienate the Mortgaged
Property to the prejudice of this act.
The maximum amount of the Secured Obligations that may be outstanding at any
time and from time to time that this Mortgage secures, including without
limitation as a mortgage, as an assignment and as a security agreement,
including all principal, interest and any expenses or advances incurred by
the Mortgagee, whether stipulated herein or otherwise, and all other amounts
included within the Secured Obligations, is fifty million ($50,000,000.00)
dollars (the "MAXIMUM Amount").
The Mortgagor acknowledges that this Mortgage secures the Secured
Obligations and advances made or incurred by the Mortgagee under or pursuant
to this Mortgage, the Indenture or otherwise, whether optional or obligatory
by the Mortgagee. This Mortgage is and shall remain effective, even though
the amount of the Secured Obligations may now be zero or may later be
reduced to zero, until all of the amounts, liabilities and obligations,
present and future, comprising the Secured Obligations have been incurred
and are extinguished. When no Secured Obligations secured by this Mortgage
exists and the Mortgagee is not bound to permit any Secured Obligations to
be incurred, this Mortgage may be terminated by the Mortgagor upon thirty
(30) days prior written notice sent by the Mortgagor to the Mortgagee in
accordance with the provisions of this Mortgage.
SECTION II - SECURITY INTEREST
(a) With respect to all personal property (both. tangible and intangible)
and any fixtures constituting a part of the Mortgaged Property, this
Mortgage shall likewise be a security agreement and a financing statement
and for valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, and for the purpose of further securing the full and
punctual payment and performance of the Secured Obligations, Mortgagor
hereby grants to Mortgagee a security interest in all of Mortgagor's rights,
titles and interests in and to the Mortgaged Property insofar as the
Mortgaged Property consists of equipment, contract rights, general
intangibles, documents, instruments, chattel paper, fixtures and any and all
other personal property of any kind or character defined in and subject to
the provisions of the UCC, including the proceeds, profits, rents, revenues
and products from any and all of such personal property. Upon the
occurrence and during the continuance of any Event of Default (as
hereinafter defined), Mortgagee is and shall be entitled to all of the
rights, powers and remedies afforded a secured party by the UCC with
reference to the personal property and fixtures in which Mortgagee has been
granted a security interest herein, or Mortgagee may proceed as to both the
real and personal property covered hereby in accordance with the rights and
remedies granted under this Mortgage in respect of the real property covered
hereby. Such rights, powers and remedies shall be cumulative and in
addition to those granted to Mortgagee under any other provision of this
Mortgage or under any other instrument executed in connection with or as
security for the Secured Obligations. A carbon or photographic or other
reproduction of this Mortgage shall be sufficient as a financing statement
covering the Mortgaged Property.
(b) Mortgagor shall, forthwith after the execution and delivery of this
mortgage and thereafter, from time to time, cause this Mortgage and any
financing statement, continuation statement or similar instrument relating
to any thereof or to any property intended to be subject to the Lien of this
Mortgage to be filed, registered and recorded in such manner and in such
places as may be required by any present or future law in order to fully
protect the validity, priority and perfection thereof or the Lien hereof
upon the Mortgaged Property and the interest and rights of Mortgagee herein
and therein. Mortgagor shall pay or cause to be paid all taxes and fees
incident to such filing, registration-ration and recording, all expenses
incident to the preparation, execution and acknowledgment thereof, and of
any instrument of further assurance, and all federal or State stamp taxes or
other taxes, duties and charges arising out of or in connection with the
execution and delivery of such instruments.
(c) Mortgagor shall, at the sole cost and expense of Mortgagor, do,
execute, acknowledge and deliver all and every such further acts, deeds,
conveyances, mortgages, assignments, notices of assignment, transfers,
financing statements, continuation statements and assurances as Mortgagee
shall from time to time reasonably request which may be necessary in the
requesting party's judgment to assure, perfect, mortgage, transfer and
confirm unto the Mortgagee the property and rights hereby mortgaged or
granted or which Mortgagor may be or may hereafter become bound to mortgage
or grant to Mortgagee or which may facilitate the performance of the terms
of this Mortgage or the filing, registering or recording of this Mortgage.
In the event Mortgagor shall fail to execute any instrument required to be
executed by Mortgagor pursuant to this SUBSECTION II (c), Mortgagee may
execute the same as the attorney in-fact for Mortgagor, such power of
attorney being coupled with an interest and irrevocable.
(d) Nothwithstanding the provisions of this Section II above, the security
interest shall not attach to property originally acquired by Casino Magic
Louisiana with Permitted FF&E financing (as defined in the Indenture).
SECTION III - SECURED OBLIGATIONS
This Mortgage is executed and delivered by Mortgagor to secure the payment
and performance of the obligations (collectively, the "Secured Obligations")
described below:
(a) Payment of and performance of any and all indebtedness, obligations and
liabilities of Mortgagor now or hereafter existing under or in respect of
the Guarantee, including, without limitation, payment of principal, premium,
if any, and interest when due and payable, and all other amounts due or to
become due under or in connection with the Indenture as in effect on the
date hereof (including, without limitation, all sums due to the Mortgagee
pursuant to Section 7.7 of the Indenture), the Notes (as defined herein and
in the Indenture) and the performance of all other obligations to the
Mortgagee and the Holders (as defined herein and in the Indenture) under the
Indenture, the Notes and the Collateral Documents (as defined in the
Indenture), according to the terms thereof;
(b) Any sums which may be advanced or paid by Mortgagee under the terms
hereof on account of the failure of Mortgagor to comply with the covenants
of Mortgagor contained herein;
(c) Payment and performance of all covenants, agreements, and obligations
of Mortgagor herein contained;
(d) all renewals, rearrangements, increases, substitutions and extensions,
and all amendments, supplements and modifications, to any of the obligations
described in the preceding clauses (a)through (c).
SECTION IV - REPRESENTATIONS, WARRANTIES AND COVENANTS
Mortgagor hereby represents, warrants and covenants as follows:
(a) GOOD TITLE; AUTHORITY AND VALIDITY. Mortgagor has good and
merchantable title to the Mortgaged Property and the landlord's interest and
estate under or in respect of the Leases, subject to the Excepted Liens, and
has, in all material respects, full corporate power and lawful authority to
mortgage, pledge and hypothecate and to grant a security interest in all of
the Mortgaged Property all in the manner and form herein provided and
without obtaining the waiver, consent or approval of any lessor, sublessor,
Governmental Authority or entity or other party whomsoever or whatsoever
which has not been obtained, except in the case of certain environmental
permits and approvals which, by their terms, are not transferable or cannot
be transferred without the prior approval of the issuing agency. The
Improvements upon the Land are all within the boundary lines of the Land or
have the benefit of valid servitude's or easements, and there are no
encroachments thereon that would materially impair the use thereof. The
Mortgaged Property is free and clear of any and all Liens or encumbrances of
any nature or kind except for the Excepted Liens and the Leases. Mortgagor
has all necessary permits, franchises, licenses, rights-of-way, servitude's
or other rights or authority needed in connection with the operation and
maintenance of the Mortgaged Property, except where the failure to have the
same would not have a Material Adverse Effect; except where such default
would not individually or in the aggregate have a Material Adverse Effect;
except as provided in the Excepted Liens, Mortgagor's grant of a Lien and
security interest in the Mortgaged Property in the manner herein provided
does not result in the creation or imposition of any other Lien or security
interest, adverse claim or option upon any of the Mortgaged Property.
Mortgagor's chief executive office and chief place of business is located at
the address set forth in Section VIII(L) of this Mortgage. Mortgagor will
not change its name, identity or corporate structure or its chief executive
office or chief place of business or its taxpayer identification number
without notifying Mortgagee at least thirty (30) days prior to the effective
date of such change.
(b) DEFENSE OF TITLE. Mortgagor will warrant and defend title to the
Mortgaged Property, subject to Excepted Liens, against the claims and
demands of all other Persons whomsoever and will maintain and preserve the
Lien created hereby so long as any of the Secured Obligations secured hereby
remains unpaid or not satisfied. Should an adverse claim be made against
the title to any material part of the Mortgaged Property, Mortgagor agrees
it will immediately notify Mortgagee in writing thereof and defend against
such adverse claim to the extent necessary to preserve Mortgagee's rights
and benefits hereunder, subject to Excepted Liens, and Mortgagor further
agrees that Mortgagee may take such other reasonable action as it deems
advisable to protect and preserve its interest in the Mortgaged Property,
and in such event Mortgagor will indemnify Mortgagee against any and all
costs, reasonable attorney's fees and other expenses which they may incur in
defending against any such adverse claim. Such obligations shall be payable
on demand and shall bear interest from the date of demand therefor until
paid at the Note Rate. Any proceeds of any policy of title insurance
maintained by Mortgagor with respect to the Mortgaged Property shall, for
the purposes of this Mortgage, be paid and applied in the same manner as
Insurance Proceeds (as hereinafter defined).
(c) FIRST LIEN. This Mortgage is, and always will be kept, a direct first
Lien and security interest upon the Mortgaged Property, subject to the
Excepted Liens, and Mortgagor will not create or suffer to be created or
permit to exist any Lien, security interest or charge prior or junior to or
on parity with the Lien and security interest of this Mortgage upon the
Mortgaged Property or any part thereof or upon the Rents therefrom, except
for the Excepted Liens.
(d) MAINTENANCE OF MORTGAGED PRO-PROPERTY. Mortgagor will at its own
expense do or cause to be done all things necessary to preserve and keep in
full repair, working order and efficiency, reasonable wear and tear
excepted, all of the Mortgaged Property, including, without limitation, all
equipment, machinery and facilities, and from time to time will make all the
needful and proper repairs, renewals and replacements so that at all times
the state and condition of the Mortgaged Property will be fully preserved
and maintained.
(e) PERFORMANCE OF CONTRACTS. Mortgagor will promptly pay and discharge
all rentals, or other payments and will perform or cause to be performed
each and every act, matter or thing required by, each and all of the
contracts, instruments or agreements executed in connection with or incident
to the ownership and operation of the Mortgaged Property and will do all
other things necessary to keep unimpaired Mortgagor's rights with respect
thereto and to prevent any forfeiture thereof or default thereunder.
Mortgagor will operate the Mortgaged Property in a good and workmanlike
manner and in accordance with the practices of the industry and in
compliance with all Governmental Requirements affecting ownership and
operation of such facilities, including without limitation, Environmental
Laws.
(f) PAYMENT BY MORTGAGEE. Mortgagor agrees that if Mortgagor fails to
perform any act or to take any action which Mortgagor is required to perform
or take hereunder or pay any money which Mortgagor is required to pay
hereunder (taking into account applicable grace or cure periods), Mortgagee
in Mortgagor's name or its own name may, but shall not be obligated to,
perform or cause to perform such act or take such action or pay such money,
and any expenses so incurred by Mortgagee and any money so paid by Mortgagee
shall be a demand obligation owing by Mortgagor to Mortgagee, and Mortgagee,
upon making such payment, shall be subrogated to all of the rights of the
Person receiving such payment. Each amount due and owing by Mortgagor to
Mortgagee pursuant to this Mortgage shall bear interest from the date of
such expenditure or payment or other occurrence which gives rise to such
amount being owed to Mortgagee until paid at the Note Rate, and all such
amounts together with such interest thereon shall be a part of the Secured
Obligations and shall be secured by this Mortgage.
(g) NAME OF MORTGAGOR. Mortgagor does not do business with respect to the
Mortgaged Property under any name other than C-M of Louisiana, Inc.
(h) OPERATION BY THIRD PARTIES. To the extent any of the Mortgaged
Property is operated by a party or parties other than Mortgagor, Mortgagor's
covenants as expressed in this SECTION IV are modified to require that
Mortgagor use its best efforts (including without limitation the reasonable
exercise of all rights and remedies as are available to Mortgagor) to obtain
compliance with such covenants by the operator or operators of the Mortgaged
Property.
(I) COMPLIANCE WITH LAWS. The Mortgaged Property complies and at all times
will comply with all local zoning, land use, setback and other development,
use and occupancy requirements of Governmental Authorities.
(i) PAYMENT OF TAXES, INSURANCE PREMIUMS, ASSESSMENTS; COMPLIANCE WITH LAW
AND INSURANCE REQUIREMENTS.
(I) Unless contested in accordance with the provisions of SUBSECTION IV
(j)(v) hereof, Mortgagor shall pay and discharge or cause to be paid and
discharged, from time to time when the same shall become due, all real
estate and other taxes, special assessments, levies, permits, inspection and
license fees, all premiums for insurance, all water and sewer rents and
charges, and all other public charges imposed upon or assessed against the
Mortgaged Property or any part thereof or upon the revenues, rents, issues,
income and profits of the Mortgaged Property, including, without limitation,
those arising in respect of the occupancy, use or possession thereof.
(ii) During the continuance of an Event of Default, Mortgagor shall deposit
with Mortgagee, on the first day of each month, an amount reasonably
estimated by Mortgagee to be equal to one-twelfth (1/12th) of the annual
taxes, assessments and other items required to be discharged by Mortgagor
under SUBSECTION IV (j)(i) and amounts reasonably estimated by Mortgagor to
be necessary to maintain the insurance coverages contemplated in SUBSECTION
IV (1) below, which estimates shall not be less than one-twelfth (1/12th) of
the annual taxes, assessments, insurance premiums and other items required
to be discharged by Mortgagor during the year immediately preceding the year
during which such Event of Default occurred. Such amounts shall be held by
Mortgagee without interest to Mortgagor and applied to the payment of each
obligation in respect of which such amounts were deposited, in such order or
priority as Mortgagee shall determine, on or before the date on which such
obligation would become delinquent. If at any time the amounts so deposited
by Mortgagor shall, in Mortgagee's judgment, be insufficient (when added to
the installments anticipated to be paid thereafter) to discharge any of such
obligations when due, Mortgagor shall, immediately upon demand, deposit with
Mortgagee such additional amounts as may be requested by Mortgagee. Nothing
contained in this SUBSECTION IV (j) shall affect any right or remedy of
Mortgagee under any provision of this Mortgage or of any statute or rule of
law to pay any such amount from its own funds (provided, however, that
Mortgagee shall not in any event be obligated to pay any of such amounts
from its own funds) and to add the amount so paid, together with interest at
the Note Rate, to the Secured Obligations, or relieve Mortgagor of its
obligations to make or provide for the payment of the annual taxes,
assessments and other charges required to be discharged by Mortgagor under
SUBSECTION IV (j)(i) . Mortgagor hereby grants to Mortgagee a security
interest in all sums held pursuant to this SUBSECTION IV (j)(ii) to secure
payment and performance of the Secured Obligations. During the continuance
of any Event of Default, Mortgagee may apply all or any part of the sums
held pursuant to this SUBSECTION IV (j)(ii) to the payment and performance
of the Secured Obligations in accordance with the provisions of the
Indenture. Mortgagor shall redeposit with Mortgagee an amount equal to all
amounts so applied as a condition to the cure, if any, of such Event of
Default, in addition to fulfillment of any other required conditions.
(iii) Unless contested in accordance with the provisions of SUBSECTION IV
(j)(v) , Mortgagor shall timely pay (or obtain a bond in the amount of) all
lawful claims and demands of mechanics, materialmen, laborers, warehousemen,
employees, suppliers, government agencies administering worker's
compensation insurance, old age pensions and social security benefits, and
all amounts owed under collective bargaining agreements and all other
claims, judgments, demands or amounts of any nature which, if unpaid or not
bonded, could result in or permit the creation of a Lien (other than an
Excepted Lien) on the Mortgaged Property or any part thereof or the Rents
arising therefrom, or which might result in forfeiture of all or any part of
the Mortgaged Property.
(iv) Mortgagor shall maintain, or cause to be maintained, in full force and
effect, all permits, certificates, authorizations, consents, approvals,
registrations, filings, licenses, franchises or other instruments now or
hereafter required by any Governmental Authority to operate or use and
occupy the Mortgaged Property and the Equipment for its intended uses
(collectively, the "Permits"; each, a "Permit"). Mortgagor represents that,
to is knowledge and subject to those requirements for notice, approval or
reissuance set forth by applicable law, none of the Permits will be subject
to cancellation, forfeiture or any limitation on the scope thereof solely by
virtue of the execution of this Mortgage or the f foreclosure of the Lien
hereof. Unless contested in accordance with the provisions of SUBSECTION IV
(j)(v), Mortgagor shall comply promptly with, or cause prompt compliance
with, all requirements set forth in the Permits and all Governmental
Requirements applicable to all or any part of the Mortgaged Property or the
condition, use or occupancy of all or any part thereof or any recorded deed
of restriction, declaration, covenant running with the land or otherwise,
now or hereafter in force. Mortgagor shall not initiate or consent to any
change in the zoning, subdivision or any other use classification of the
Land.
(v) Mortgagor may at its own expense contest the amount or applicability of
any of the obligations described in SUBSECTIONS IV (j)(i), IV(j)(iii) and IV
(j)(iv) by appropriate legal proceedings, prosecution of which operates to
prevent the collection or enforcement thereof or the sale or forfeiture of
the Mortgaged Property or any part thereof to satisfy such obligations;
PROVIDED, HOWEVER, that (A) any such contest shall be conducted in good
faith by appropriate legal proceedings promptly instituted and diligently
conducted and (B) in connection with such contest, Mortgagor shall have made
provision for the payment or performance of such contested obligation on
Mortgagor's books if and to the extent required by generally accepted
accounting principles then utilized by Mortgagor in the preparation of its
financial statements, or shall have deposited with Mortgagee a sum
sufficient to pay and discharge such obligation and Mortgagee's estimate of
all interest and penalties related thereto. Notwithstanding the foregoing
provisions of this SUBSECTION IV (j)(v), (A) no contest of any such
obligations may be pursued by Mortgagor if such contest would expose
Mortgagee or any other Secured Party to any possible criminal liability, or
any civil liability for failure to comply with such obligations and (B) if
at any time payment or performance of any obligation contested by Mortgagor
pursuant to this SUBJECTION IV (j)(v) shall become necessary to prevent the
a tax sale conveying the Mortgaged Property or any portion thereof because
of nonpayment or nonperformance, Mortgagor shall pay or perform the same in
sufficient time to prevent the tax sale.
(vi) Mortgagor shall not in its use and occupancy of the Mortgaged Property
or the Equipment (including, without limitation, in the making of any
Alteration, as hereinafter defined) take any action that would cause the
termination, revocation or denial of any insurance coverage required to be
maintained under this Mortgage or that pursuant to written notice from any
applicable insurer, would be the basis for a defense to any claim under any
insurance policy maintained in respect of the Mortgaged Property or the
Equipment and Mortgagor shall otherwise comply with the requirements of any
insurer that issues a policy of insurance in respect of the Mortgaged
Property or the Equipment.
(vii) Mortgagor shall, promptly upon receipt of any written notice
regarding any failure by Mortgagor to pay or discharge any of the
obligations described in SUBSECTION IV (j),(i),(ii), (iii) OR (vi), furnish
a copy of such notice to Mortgagee. Mortgagor shall, promptly upon receipt
of any written notice regarding any failure by mortgagor to pay or discharge
any of the obligations described in SUBSECTION IV (j) or (iv), furnish a
copy of such notice to Mortgagee.
(k) CERTAIN TAX LAW CHANGES. In the event of the passage after the date of
this Mortgage of any law deducting from the value of real property, for the
purpose of taxation, amounts in respect of any Lien thereon or changing in
any way the laws for the taxation of mortgages or debts secured by mortgages
for federal, state or local purposes or the manner of the collection of any
such taxes, and imposing a new tax, either directly or indirectly, on this
Mortgage or the interest of Mortgagee or any other Secured Party in any
Mortgaged Property (other than income, franchise or similar taxes imposed on
Mortgagee or such Secured Party), Mortgagor shall promptly pay Mortgagee or
such Secured Party such amount or amounts as may be necessary from time to
time to pay such tax and such amount shall bear interest at the Note rate
from the date due until paid in full.
1) REQUIRED INSURANCE POLICIES.
(I) Mortgagor shall maintain, or cause to be maintained, in full force and
effect the following insurance coverages, as applicable, in respect of the
Mortgaged Property and the Equipment:
(A) Physical hazard insurance on an "all risk" basis covering hazards
commonly covered by fire and extended coverage, lightning, tornado, wind
damage, civil commotion, hail, riot, strike, water damage, sprinkler
leakage, collapse and malicious mischief, in an amount equal to the full
replacement cost of the Improvements and all Equipment, with such
deductibles as would be maintained by a prudent operator of property similar
in use and configuration to the Mortgaged Property and located in the
locality where the Mortgaged Property is located. "Full replacement cost"
means the Cost of Construction to replace the Improvements and the
Equipment, exclusive of depreciation, excavation, foundation and footings,
as determined from time to time by a proper officer of Mortgagor in
consultation with its insurance company or insurance agent, as appropriate;
(B) Comprehensive general liability insurance against claims for bodily
injury, death or property damage occurring on, in or about the Mortgaged
Property and any adjoining streets, sidewalks and passageways and covering
any and all claims, including, without limitation, all legal liability,
subject to customary exclusions, to the extent insurable, imposed upon
Mortgagee or any other Secured Party and all court costs and attorneys,
fees, arising out of or connected with the possession, use, leasing,
operation or condition of the Mortgaged Property, with policy limits and
deductibles in such amounts as would be maintained by a prudent operator of
property similar in use and configuration to the Mortgaged Property and
located in the locality where the Mortgaged Property is located, but in no
event less than $10,000,000.00;
(C) Workers compensation insurance as required by the laws of the State to
protect Mortgagor against claims for injuries sustained in the course of
employment at the Mortgaged Property;
(D) Comprehensive boiler and machinery insurance to cover sudden and
accidental breakdown, including but not limited to, explosion of any boilers
and machinery located on the Mortgaged Property or comprising any Equipment,
with policy limits and deductibles in such amounts as would be maintained by
a prudent operator of property similar in use and configuration to the
Mortgaged Property and the Equipment and located in the locality where the
Mortgaged Property is located, but in no event less than $35,000,000.00;
(E) Comprehensive automobile liability insurance policy against claims for
bodily injury, death and property damage covering all owned, leased, non-
owned and hired motor vehicles, including loading and unloading in such
amounts as would be maintained by a prudent operator of property similar in
use and configuration to the Mortgaged Property and the Equipment and
located in the locality where the Mortgaged Property is located, but in no
event less than $1,000,000.00;
(F) Business interruption insurance on an annual basis in amounts not less
than (1) the projected gross profit of the Mortgaged Property during the
applicable twelve-month period or (2) the amount necessary to pay the fixed
charges and other expenses of owning, operating and maintaining the
Mortgaged Property for the same period;
(G) To the extent not otherwise covered by the insurance required under
clauses (A) and (B) of this SUBSECTION IV (1)(i), during the performance of
any alterations, renovations, repairs, restorations or construction, broad
form Builders Risk Insurance on an all risk completed value basis; and
(H) Such other insurance, against such risks and with policy limits and
deductibles in such amounts as would be maintained by a prudent operator of
property similar in use and configuration to the Mortgaged Property and
located in the locality in which the Mortgaged Property is located.
(ii) Mortgagor may maintain the coverages required by this subsection
IV(l) under blanket policies covering the Mortgaged Property and other
locations owned or operated by Mortgagor if the terms of such blanket
policies otherwise comply with the provisions of this subsection IV(l) and
contain specific coverage allocations in respect of the Mortgaged Property
determined in accordance with the provisions of this subsection IV(l). All
insurance policies in respect of the coverages required by subsections IV
(1)(i)(A) , IV(1)(i)(D), IV(1)(i)(G) and, if applicable, IV(l)(i)(H) shall
be in amounts at least sufficient to prevent coinsurance liability and all
losses thereunder shall be payable to Mortgagee, as loss payee, subject to
the terms of the Indenture, pursuant to a standard noncontributory New York
mortgage endorsement or local equivalent, and each such policy shall, to the
extent obtainable at commercially reasonable costs, (A) include effective
waivers (whether under the terms of such policy or otherwise) by the insurer
of all claims for insurance premiums against all loss payees and named
insureds other than Mortgagor and all rights of subrogation against any
named insured, and (B) provide that any losses thereunder shall be payable
notwithstanding (1) any act, failure to act, negligence of, or violation or
breach of warranties, declarations or conditions contained in such policy by
Mortgagor or Mortgagee or any other named insured or loss payee, (2) the
occupation or use of the Mortgaged Property or the Equipment for purposes
more hazardous than permitted by the terms of the policy, (3) any
foreclosure or other proceeding relating to the Mortgaged Property or the
Equipment or (4) any change in the title to or ownership or possession of
the Mortgaged Property or the Equipment; provided, however, that (with
respect to items contemplated in clauses (3) and (4) above) any notice
requirements of the applicable policies are satisfied. All insurance
policies in respect of the coverages required by subsections IV(l) ' shall
name Mortgagee as an additional insured. Each policy of insurance required
under this subsection IV(l) shall provide that (A) notices of any failure by
Mortgagor to pay any insurance premium in respect thereof, be furnished to
Mortgagee contemporaneously with any such notice given to Mortgagor and (B)
it may not be canceled or otherwise terminated without at least thirty (30)
days, prior written notice to Mortgagee and shall permit Mortgagee to pay
any premium therefor within thirty (30) days after receipt of any notice
stating that such premium has not been paid when due. The policy or
policies of such insurance or certificates of insurance evidencing the
required coverages and all renewals or extensions thereof shall be delivered
to Mortgagee upon receipt by Mortgagor. Settlement of any claim under any
of the insurance policies referred to in this subsection IV(l) (other than
the insurance contemplated in clause(C) of this subsection IV(l)(i)) shall
require the prior approval of Mortgagee and Mortgagor shall use its best
efforts to cause each such insurance policy to contain a provision to such
effect.
(iii) At least thirty (30) days prior to the expiration of any insurance
policy required by this subsection IV (1) , Mortgagor shall deliver to
Mortgagee evidence that such policy or policies shall be renewed or extended
and Mortgagor shall deliver promptly to Mortgagee after receipt thereof the
policy or policies renewing or extending such expiring policy or renewal or
extension certificates.
(iv) Mortgagor shall not purchase additional policies in respect of the
insurance coverages required to be maintained under this subsection IV(l),
unless Mortgagee is included thereon as an additional named insured and, if
applicable, with loss payable to Mortgagee under an endorsement containing
the provisions described in subsection IV(l) (ii) and the policy evidencing
such insurance otherwise complies with the requirements of ' subsection
IV(l)(ii). Mortgagor immediately shall notify Mortgagee whenever any such
separate insurance policy is obtained and promptly shall deliver to
Mortgagee the policy or certificate evidencing such insurance.
(m) Inspection. Mortgagor shall permit Mortgagee, by any of its officers,
employees, agents, accountants and attorneys, to visit and inspect the
Mortgaged Property, examine the books and records and accounts of the
Mortgagor, take copies and extracts therefrom, and discuss the affairs,
finances and accounts of the Mortgagor with the Mortgagor's officers,
accountants and auditors, all upon reasonable prior notice at such times as
may be reasonably requested by Mortgagee.
(n) Mortgagor To Maintain Improvements. Mortgagor shall not commit any
waste on the Mortgaged Property or with respect to any Equipment or make any
change in the use of the Mortgaged Property or any Equipment. Mortgagor
represents and warrants that (i) to Mortgagor's knowledge, the Mortgaged
Property is served by all electric, gas, sewer, water facilities and any
other utilities required or necessary for the current and contemplated use
thereof and any easements or servitude's necessary to the furnishing of such
utility service by Mortgagor have been obtained and duly recorded, and (ii)
Mortgagor has access to the Mortgaged Property from public roads sufficient
to allow Mortgagor and its tenants and invitees to conduct its and their
businesses at the Mortgaged Property as it is currently conducted and is
contemplated to be conducted. Mortgagor shall not alter the occupancy or
use of the Mortgaged Property without the prior written consent of
Mortgagee. No Improvements comprising a portion of the Mortgaged Property
may be demolished nor shall any Equipment be removed without the prior
written consent of Mortgagee.
(o) Leases.
(i) All of the Leases are valid and effective in accordance with their
respective terms, except that the enforcement thereof may be subject to (i)
bankruptcy, insolvency, reorganization, moratorium or other similar law
affecting or relating to enforcement of creditors' rights generally, and
(ii) general equitable principles. To
Mortgagor's knowledge, Mortgagor is not in breach of or in default (and to
Mortgagor's knowledge, no event has occurred which with due notice or lapse
of time or both, may constitute such a breach or default) under any Lease,
and no party to any Lease has given Mortgagor written notice of or made a
claim with respect to any breach or default.
(ii) Mortgagor shall manage and operate the Mortgaged Property or cause the
Mortgaged Property to be managed and operated in a reasonably prudent manner
and, except as otherwise permitted under subsection IV(p), will not enter
into any Lease (or any amendment or modification thereof) or other agreement
subsequent to the date hereof with any Person which, individually or in the
aggregate, would have a Material Adverse Effect on the value of the property
subject thereto.
(iii) Mortgagor shall not:
(A) receive or collect, or permit the receipt or collection of, any rental
or other payments under any Lease more than one (1) month in advance of the
respective period in respect of which they are to accrue, except that (a) in
connection with the execution and delivery of any Lease or of any amendment
to any Lease, rental payments thereunder may be collected and received in
advance in an amount not in excess of one (1) month' s rent and (b)
Mortgagor may receive and collect escalation and other charges in accordance
with the terms of each Lease;
(B) assign, transfer or hypothecate (other than to Mortgagee hereunder or
as otherwise permitted under subsection IV(p) of this Mortgage) any rental
or other payment under any Lease whether then due or to accrue in the
future, the interest of Mortgagor as lessor under any Lease or the rents,
issues, revenues, profits or other income of the Mortgaged Property;
(C) enter into any Lease after the date hereof that does not contain terms
to the effect as follows:
(1) such Lease and the rights of the tenant thereunder shall be subject and
subordinate to the rights of Mortgagee under and the Lien of this Mortgage;
(2) such Lease has been assigned as collateral security by Mortgagor as
landlord thereunder to Mortgagee under this Mortgage;
(3) in the case of any foreclosure hereunder, the rights and remedies of
the tenant in respect of any obligations of any successor landlord
thereunder shall be limited to the equity interest of such successor
landlord in the Mortgaged Property and any successor landlord shall not (a)
be liable for any act, omission or default of any prior landlord under the
Lease or (b) be required to make or complete any tenant improvements or
capital improvements or repair, restore, rebuild or replace the demised
premises or any part thereof in the event of damage, casualty or
condemnation or (c) be required to pay any amounts to tenant arising under
the Lease prior to such successor landlord taking possession;
(4) the tenant I s obligation to pay rent and any additional rent shall not
be subject to any abatement, deduction, counterclaim or setoff as against
Mortgagee or any purchaser upon the foreclosure of any portion of the
Mortgaged Property or the giving or granting of a deed in lieu thereof
(dation en paiement) by reason of a landlord default occurring prior to such
foreclosure, and Mortgagee or such purchaser will not be bound by any
advance payments of rent in excess of one month or any security deposits
unless such security was actually received by Mortgagee; and
(5) the tenant agrees to attorn, at the option of Mortgagee or any
purchaser of the Mortgaged Property, to the successor owner upon a
foreclosure of the Mortgaged Property or the giving or granting of a deed in
lieu thereof (dation en paiement); and
(D) terminate or permit the termination of any Lease of space, accept
surrender of all or any portion of the space demised under any Lease prior
to the end of the term thereof or accept assignment of any Lease to
Mortgagor which, individually or in the aggregate, would have a Material
Adverse-Effect or materially impair the Lien of this Mortgage therein
unless:
(1) the tenant under such Lease has not paid the equivalent of two months I
rent and Mortgagor has made reasonable efforts to collect such rent; or
(2) Mortgagor shall deliver to Mortgagee an Officer's Certificate to the
effect that Mortgagor has entered into a new Lease (or Leases) for the space
covered by the terminated or assigned Lease with a term (or terms) which
expire(s) no earlier than the date on which the terminated or assigned Lease
was to expire (excluding renewal options), and with a tenant (or tenants)
having a creditworthiness sufficient to pay the rent and other charges due
under the new Lease (or Leases), and the tenant(s) shall have commenced
paying rent, including, without limitation, all operating expenses and other
amounts payable under the new Lease (or Leases), without any abatement or
concession, in an amount at least equal to the amount which would have then
been payable under the terminated or assigned Lease.
(iv) Mortgagor timely shall perform and observe all the terms, covenants
and conditions required to be performed and observed by Mortgagor under each
Lease and will not engage in any conduct in respect of any Lease which would
have individually or in the aggregate a Material Adverse Effect or
materially impair the Lien of this Mortgage or the security interest created
hereby. Mortgagor promptly shall notify Mortgagee of the receipt of any
notice from any lessee under any Lease claiming that Mortgagor is in default
in the performance or observance of any of the terms, covenants or
conditions thereof to be performed or observed by Mortgagor and will cause a
copy of each such notice to be delivered promptly to Mortgagee.
(p) Transfer Restrictions. Mortgagor shall not, without the prior written
consent of Mortgagee, further mortgage, encumber, hypothecate, sell, convey,
assign or lease all or any part of the Mortgaged Property or suffer any of
the foregoing to occur by operation of law or otherwise (each a "Transfer"),
except in accordance with the provisions of Section 5.20 of the Indenture,
the terms of which are incorporated herein by this reference.
Notwithstanding the foregoing, the Mortgagor may grant a mortgage junior to
this Mortgage for improvements to the Mortgaged Property consistent with the
contemplated use of such property.
(q) Destruction; Condemnation.
(i) Destruction: Insurance Proceeds. If there shall occur any damage to,
or loss or destruction of, the Improvements and Equipment, or any part of
any thereof (each, a "Destruction"), Mortgagor shall promptly send to
Mortgagee a notice setting forth the nature and extent of such Destruction.
The proceeds of any insurance payable in respect of any such Destruction are
hereby assigned and shall be paid to Mortgagee to be held in the Collateral
Account. All insurance proceeds paid to Mortgagee pursuant to this
subsection, less the amount of any expenses incurred in litigating,
arbitrating, compromising or settling any claim arising out of such
Destruction (the "Insurance Proceeds"), shall constitute Trust Moneys and be
applied in accordance with the provisions of subsections IV(a)(iii),
IV(q)(iv) and IV (q)(v).
(ii) Condemnation; Assignment of Award. If there shall occur any taking of
the Mortgaged Property or any part thereof, in or by condemnation or other
eminent domain proceedings pursuant to any law, general or special, or by
reason of the temporary requisition of the use or occupancy of the Mortgaged
Property or any part thereof, by any Governmental Authority, civil or
military (each, a "Taking") , Mortgagor immediately shall notify Mortgagee
upon receiving notice of such Taking or commencement of proceedings
therefor. Mortgagee may (but shall not be obligated to) participate in any
proceedings or negotiations which might result in any Taking. Mortgagee may
be represented by counsel satisfactory to it at the expense of Mortgagor.
Mortgagor shall deliver or cause to be delivered to Mortgagee all
instruments requested by it to permit such participation. Mortgagor shall
in good faith and with due diligence file and prosecute what would otherwise
be Mortgagor's claim for any such award or payment and cause the same to be
collected and paid over to Mortgagee, and hereby irrevocably authorizes and
empowers Mortgagee, in the name of Mortgagor as its true and lawful
attorney-in-fact or otherwise to collect and to receipt for any such award
or payment, and, in the event Mortgagor fails so to act, to file and
prosecute such claim. Mortgagor shall pay all costs, fees and expenses
incurred by Mortgagee in connection with any Taking and seeking and
obtaining any award or payment on account thereof. Any proceeds, award or
payment in respect of any Taking are hereby assigned and shall be paid to
Mortgagee to be held in the Collateral Account. Mortgagor shall take all
steps necessary to notify the condemning authority of such assignment. Such
proceeds, award or payment paid to Mortgagee, less the amount of any
expenses incurred in litigating, arbitrating, compromising or settling any
claim arising out of such Taking ("Net Award") , shall constitute Trust
Moneys and be applied in accordance with the provisions of subsections
IV(q)(iii), IV(q)(iv)- and IV(q)(v).
Payment or Restoration. So long as no Event of Default shall have occurred
and be continuing, Mortgagor shall have the right, at Mortgagor's option, to
require Mortgagee to apply such Net Award or Insurance Proceeds to the
payment of the Secured Obligations, in accordance with the Indenture or to
perform a restoration (each, a "Restoration") of the affected portions of
the Mortgaged Property and the Equipment. In the event that Mortgagor
elects to make such payment, such Net Award or Insurance Proceeds shall be
delivered to Mortgagee to be held as Trust Moneys subject to withdrawal and
application by Mortgagee in accordance with the provisions of the Indenture.
In the event Mortgagor elects to perform a Restoration, Mortgagor shall give
written notice ("Restoration Election Notice") of such election to Mortgagee
within twenty (20) business days after the date that Mortgagee receives the
applicable Insurance Proceeds or Net Award, as the case may be. Mortgagor
shall, within twenty (20) business days following the date of delivery of a
Restoration Election Notice, commence and diligently continue to perform the
Restoration of that portion or portions of the Mortgaged Property and
Equipment subject to such Destruction or affected by such Taking so that,
upon the completion of the Restoration, the Mortgaged Property shall be in
the same condition and shall be of at least equal utility for its intended
purposes as the Mortgaged Property was immediately prior to such Destruction
or Taking. Mortgagor shall so complete such Restoration with its own funds
to the extent that the amount of any Net Award or Insurance Proceeds is
insufficient for such purpose. In the event Mortgagee does not receive a
Restoration Election Notice within such twenty (20) business day period,
Mortgagee shall apply such Insurance Proceeds or Net Award to the payment of
the Secured Obligations, in accordance with the provisions of the Indenture.
(iv) Restoration. In the event a Restoration is to be performed under this
subsection IV(a)(iv), Mortgagee shall not release any part of the Net Award
or the Insurance Proceeds except in accordance with the provisions of '
subsection IV (c[) (v) and Mortgagor shall, prior to commencing any work to
effect a Restoration of the Mortgaged Property and the Equipment, promptly
(but in no event later than sixty (60) days following any Destruction or
Taking) furnish to Mortgagee:
(A) complete plans and specifications (the "Plans and Specifications")
for the Restoration;
(B) an officer's certificate stating that all permits and approvals
required by law to commence work in connection with the Restoration have
been obtained;
(C) a certificate (an "Architect's Certificate") of an independent,
reputable architect or engineer acceptable to Mortgagee and licensed in the
State (1) stating that the Plans and Specifications have been reviewed and
approved by the signatory thereto, (2) containing such signatory's estimate
(an "Estimate") of the costs of completing the Restoration, and (3) upon
completion of such Restoration in accordance with the Plans and
Specifications, the utility of the Mortgaged Property and the Equipment will
be equal to or greater than the utility thereof immediately prior to the
Destruction or Taking relating to such Restoration; and
(D) if the Estimate exceeds the Insurance Proceeds or the Net Award, as
the case may be, by $5,000,000 or more, an Additional Undertaking in an
amount equal to not less than the Estimate less the amount of the Insurance
Proceeds or the Net Award, as the case may be, then held by Mortgagee for
application toward the cost of such Restoration.
Upon receipt by Mortgagee of each of the items required pursuant to clauses
(A) through (D) above, Mortgagee shall acknowledge receipt of the Plans and
Specifications. Promptly upon such acknowledgment of receipt by Mortgagee,
Mortgagor shall commence and diligently continue to perform the Restoration
substantially in accordance with such Plans and Specifications and in
material compliance with all Governmental Requirements, free and clear of
all Liens except Excepted Liens. Mortgagor shall so complete such
Restoration with its own funds to the extent that the amount of any Net
Award or Insurance Proceeds is insufficient for such purpose.
(v) Restoration Advances Following Destruction or Taking of Mortgaged
Property. In the event Mortgagor performs a Restoration of the Mortgaged
Property and Equipment as provided in subsection IV (a) (iv) , Mortgagee
shall apply any Insurance Proceeds or Net Award held by Mortgagee on account
of the Destruction or Taking to the payment of the cost of performing such
Restoration pursuant to the relevant provisions of the Indenture. In the
event there shall be any surplus after application of the Net Award or the
Insurance Proceeds to Restoration of the Mortgaged Property and the
Equipment, such surplus shall be paid by Mortgagor to the Mortgagee for
application in accordance with the Indenture; provided, however, that if an
Event of Default shall have occurred and be continuing, such surplus shall
be applied by Mortgagee to the payment of the Secured Obligations.
Notwithstanding anything to the contrary herein, if a Destruction or Taking
of all or substantially all of the Mortgaged Property occurs on a date which
is less than 12 months prior to Maturity, as such term is defined in the
Indenture, all Insurance Proceeds and Net Awards shall be applied to the
permanent repayment or prepayment of any Secured Obligations then
outstanding in accordance with the Indenture.
(r) Alterations mortgagor shall not make any material structural
addition, modification or change (each, an "Alteration") to the Mortgaged
Property or the Equipment, except as is necessary to achieve the
contemplated use of the Mortgaged Property.
(s) Hazardous Material.
(i) Mortgagor holds all Permits required to permit Mortgagor to conduct
its business in the manner now or contemplated to be conducted and none of
the Mortgagor I s operations are being conducted in a manner that violates
the terms and conditions under which any such Permit was granted, including
without limitation, under any Environmental Laws; all such Permits are valid
and in full force and effect; and to the knowledge of Mortgagor, no
suspension, cancellation, revocation or termination of any such Permit is
threatened.
(ii) There are no claims, actions, suits, proceedings or investigations
pending or to the knowledge of Mortgagor, threatened, before any
Governmental Authority or before any arbitrator brought by or against
Mortgagor or with respect to any of the Mortgaged Property the basis of
which is any Environmental Law.
(iii) Mortgagor shall (A) comply with any and all applicable present
and future Environmental Laws relating to the Mortgaged Property; (B) pay in
a timely fashion the cost of any removal, response measure or corrective
action relating to any Hazardous Materials required by any Environmental Law
or any order, regulation, consent decree or similar agreement or instrument
and keep the Mortgaged Property free of any Lien imposed pursuant to any
Environmental Law; (C) not release, discharge or dispose of any Hazardous
Materials on, under or from the Mortgaged Property in violation of any
Environmental Law; (D) apply any insurance proceeds or other sums received
by it in respect of the removal of any Hazardous Material or any other
corrective action relating to any Hazardous Material to such removal or
corrective action; and (E) not take, or fail to take any action with respect
to any Environmental Laws or in connection with any Hazardous Materials that
could reasonably be expected to result in the incurrence of any obligation
or liability of Mortgagee or any other Secured Party. In the event
Mortgagor fails to comply with the covenants in the preceding sentence,
Mortgagee may, in addition to any other remedies set forth herein, but shall
not be obligated to, as Mortgagee for and at Mortgagor's sole cost and
expense cause to be taken, any remediation, removal, response or corrective
action relating to Hazardous Materials that is required by Environmental Law
and is not being done or contested by Mortgagor. Any costs or expenses
incurred by Mortgagee for such purpose shall be immediately due and payable
by Mortgagor and shall bear interest at the Note Rate. Mortgagor shall
provide to Mortgagee and its agents and employees access to the Mortgaged
Property to take any action required by Environmental Laws, or in connection
with any Hazardous Materials, that could be expected to result in the
incurrence of any obligation or liability of Mortgagee or any other Secured
Party, if Mortgagor fails to do so and such action or removal is required
under any Environmental Laws as provided above. Upon written request by
Mortgagee, and which shall be made not more frequently than once in any six-
month period or at any time that Mortgagee is exercising its remedies under
this Mortgage, Mortgagee shall have the right, but shall not be obligated,
at the sole cost and expense of Mortgagor, to conduct an environmental audit
or review of the Mortgaged Property relating to the specific items as
required in writing or relating to- the remedy that Mortgagee is exercising
under this Mortgage by persons or firms appointed by Mortgagee, and
Mortgagor shall cooperate in all reasonable respects in the conduct of such
environmental audit or review, including, without limitation, by providing
reasonable access to the Mortgaged Property and to all records relating
thereto. Nothing contained herein shall result in Mortgagee or any other
Secured Party being deemed an "owner" or "operator" under applicable
Environmental Law.
(iv) Mortgagor may at its own expense contest the amount or
applicability of any of the obligations described in the first sentence of
subsection IV(s)(iii) by appropriate legal proceedings, prosecution of which
operates to prevent the enforcement thereof; provided, however, that (A) any
such contest shall be conducted in good faith by appropriate legal
proceedings promptly instituted and diligently conducted and (B) in
connection with such contest, Mortgagor shall have made provision for the
payment or performance of such contested obligation on Mortgagee's books if
and to the extent required by generally accepted accounting principles then
utilized by Mortgagor in the preparation of its financial statements, or
shall have deposited with Mortgagee a sum sufficient to pay and discharge
such obligation and Mortgagee's estimate of all interest and penalties
related thereto. Notwithstanding the foregoing provisions of this
subsection IV (s) (iv) , no contest of any such obligations may be pursued
by Mortgagor if such contest would expose Mortgagee or any other Secured
Party to any possible criminal liability, or any civil liability for failure
to comply with such obligations.
(t) Asbestos. Mortgagor shall not install nor permit to be installed
in the Mortgaged Property asbestos or any asbestos containing material
(collectively, "ACM") . With respect to any ACM currently present in the
Mortgaged Property, Mortgagor shall comply with all federal, state or local
laws, regulations or orders applicable to ACM located on the Mortgaged
Property, all at Mortgagor's sole cost and expense. If Mortgagor shall fail
so to comply with such laws or regulations, Mortgagee may, but shall not be
obligated to, in addition to any other remedies set forth herein, take those
steps reasonably necessary to comply with applicable law, regulations or
orders. Any costs or expenses incurred by Mortgagee for such purpose shall
be immediately due and payable by Mortgagor and bear interest at the Note
Rate. Mortgagor shall provide to Mortgagee and its agents and employees
reasonable access to the Mortgaged Property upon reasonable prior notice to
remove such ACM if Mortgagor fails to do so; provided, however, that nothing
contained herein shall obligate Mortgagee to exercise any rights under such
license. Mortgagor shall indemnify and hold the Mortgagee or any other
Secured Party harmless from and against all loss, cost, damage and expense
that Mortgagee or any other Secured Party may sustain as a result of the
presence in or on the Mortgaged Property of any ACM and any removal thereof.
(u) Books and Records; Reports. Mortgagor shall keep proper books of
record and account, which shall accurately represent the financial condition
of Mortgagor and the business affairs of Mortgagor relating to the Mortgaged
Property. Mortgagee and its authorized representatives shall have the
right, from time to time, upon reasonable prior notice to examine the books
and records of Mortgagor relating to the operation of the Mortgaged Property
at the office of Mortgagor.
(v) No Claims Against Mortgagee. Nothing contained in this Mortgage
shall constitute any consent or request by Mortgagee, express or implied,
for the performance of any labor or services or the furnishing of any
materials or other property in respect of the Mortgaged Property or any part
thereof, nor as giving Mortgagor any right, power or authority to contract
for or permit the performance of any labor or services or the furnishing of
any materials or other property in such fashion as would permit the making
of any claim against Mortgagee in respect thereof or any claim that any Lien
based on the performance of such labor or services or the furnishing of any
such materials or other property is prior to the Lien of this Mortgage.
(w) Utility Services. Mortgagor shall pay, or cause to be paid, when
due all charges for all public or private utility services, all public or
private rail and highway services, all public or private communication
services, all sprinkler systems, and all protective services, any other
services of whatever kind or nature at any time rendered to or in connection
with the Mortgaged Property or any part thereof, shall comply in all
material respects with all contracts relating to any such services, and
shall do all other things reasonably required for the maintenance and
continuance of all such services to the extent required to fulfill the
obligations set forth in subsection IV(n).
(x) Notwithstanding any provisions herein to the contrary, Mortgagor
shall retain the right, at all times prior to foreclosure [or deed-in-lieu
(dation en paiement) thereof], to exercise custody and control with respect
to actions to be taken at the Mortgaged Property relating to the
environmental condition thereof.
(y) Prohibition of Construction of Unowned Improvements. Mortgagor
shall not allow the construction of any improvements on the Land that will
not be owned by Mortgagor ("'Unowned Improvements"), unless the owner of the
Unowned Improvements shall execute a mortgage ("New Mortgage") bearing
against the Unowned Improvements to further secure the Secured Obligations.
The New Mortgage is to be: (i) in form and substance substantially similar
to this Mortgage and acceptable to Mortgagee, (ii) a first Lien upon a good
and merchantable title to the Unowned Improvements, and (iii) fully executed
and filed for registry prior to (A) the filing of the Notice of any contract
for the Unowned Improvements, as required by Louisiana Revised Statutes
9:4811, and (B) the beginning of the work for the Unowned Improvements, as
defined by Louisiana Revised Statutes 9:482OA(2).
(z) All of the representations and warranties contained in this Section
or elsewhere in this Mortgage shall be true through and until the date on
which all obligations of Mortgagor under this Mortgage and the Secured
Obligations are fully paid or satisfied, and Mortgagor shall promptly notify
Mortgagee of any event which would render any of said representations and
warranties untrue or misleading.
SECTION V - ASSIGNMENT OF LEASES, RENTS, ISSUES AND PROFITS
(a) To further secure the full and punctual payment and performance of
the Secured Obligations up to the Maximum Amount outstanding at any time and
from time to time, the Mortgagor does hereby assign and pledge unto
Mortgagee, and grant a continuing security interest in and to, subject to
the terms and conditions
hereof, all of the Mortgagor's estate, right, title and interest (the
"Mortgagor's Interest") in the Leases and Rents including, without
limitation, the following:
(i) the immediate and continuing right to receive and collect Rents
payable by all tenants or other parties pursuant to Leases;
(ii) all claims, rights, powers, privileges and remedies of Mortgagor,
whether provided for in any Lease or arising by statute or at law or in
equity or otherwise, consequent on any failure on the part of any tenant to
perform or comply with any term of any Lease;
(iii) all rights to take all actions upon the happening of a default
under any Lease as shall be permitted by such Lease or by law, including,
without limitation, the commencement, conduct and consummation of
proceedings at law or in equity; and
(iv) the full power and authority, in the name of Mortgagor or
otherwise, to enforce, collect, receive and receipt for any and all of the
foregoing and to do any and all other acts and things whatsoever which
Mortgagor or any landlord is or may be entitled to do under the Leases or by
law.
(b) Any Rents received by Mortgagee hereunder, after payment of all
proper costs and charges, shall be applied to all amounts due and owing with
respect to the Secured Obligations. Mortgagee shall be accountable to
Mortgagor only for Rents actually received by Mortgagee pursuant to this
assignment. The collection of such Rents and the application thereof shall
not cure or waive any Event of Default or waive, modify or affect notice of
an Event of Default or invalidate any act done pursuant to such notice.
(c) So long as no Event of Default shall have occurred and be
continuing, Mortgagor shall have a license to collect and apply the Rents
and to enforce the obligations of tenants under the Leases. Immediately
upon the occurrence and during the continuance of any Event of Default, the
license granted in the immediately preceding sentence shall cease and
terminate, with or without any notice, action or proceeding. Upon such
Event of Default and during the continuance thereof, Mortgagee may (but
shall not be obligated to) to the fullest extent permitted by the Leases (i)
exercise any of Mortgagor's rights under the Leases, (ii) enforce the
Leases, (iii) demand, collect, sue for, attach, levy, recover, receive,
compromise and adjust, and make, execute and deliver receipts and releases
for all Rents or other payments that may then be or may thereafter become
due, owing or payable with respect to the Leases and (iv) generally do,
execute and perform any other act, deed, matter or thing whatsoever that
ought to be done, executed and performed in and about or with respect to the
Leases, as fully as allowed or authorized by the Mortgagor's Interest.
(d) During the continuance of each and every Event of Default,
Mortgagor hereby irrevocably authorizes and directs the tenant under each
Lease to pay directly to, or as directed by, Mortgagee all Rents accruing or
due under its Lease. Mortgagor hereby authorizes the tenant under each
Lease to rely upon and comply with any notice or demand from Mortgagee for
payment of Rents to Mortgagee and Mortgagor shall have no claim against any
tenant for Rents paid by such tenant to Mortgagee pursuant to such notice or
demand.
(e) Mortgagor at its sole cost and expense shall enforce all material
provisions of the Leases in accordance with their terms. Neither this
Mortgage nor any action or inaction on the part of Mortgagee shall release
any tenant under any Lease, any guarantor of any Lease or Mortgagor from any
of their respective obligations under the Leases or constitute an assumption
of any such obligation on the part of Mortgagee. No action or failure to
act on the part of Mortgagor shall adversely affect or limit the rights of
Mortgagee under this Mortgage or, through this Mortgage, under the Leases.
(f) All rights, powers and privileges of Mortgagee herein set forth are
coupled with an interest and are irrevocable, subject to the terms and
conditions hereof, and Mortgagor shall not take any action under the Leases
or otherwise which is inconsistent with this Mortgage or any of the terms
hereof and any such action inconsistent herewith or therewith shall be void.
Mortgagor shall, from time to time, upon request of Mortgagee, execute all
instruments and further assurances and all supplemental instruments and take
all such action as Mortgagee from time to time may request in order to
perfect, preserve and protect the interests intended to be assigned to
Mortgagee hereby.
(g) Mortgagor shall not, unilaterally or by agreement, subordinate,
amend, modify, extend, discharge, terminate, surrender, waive or otherwise
change any term of any of the Leases in any manner which would violate this
Mortgage. If the Leases shall be amended as permitted hereby, they shall
continue to be subject to the provisions hereof without the necessity of any
further act by any of the parties hereto.
(h) Nothing contained herein shall operate or be construed to (I)
obligate Mortgagee to perform any of the terms, covenants or conditions
contained in the Leases or otherwise to impose any obligation upon Mortgagee
with respect to the Leases (including, without limitation, any obligation
arising out of any covenant of quiet enjoyment contained in the Leases in
the event that any tenant under a Lease shall have been joined as a party
defendant in any action by which the estate of such tenant shall be
terminated) or (ii) place upon Mortgagee any responsibility for the
operation, control, care, management or repair of any portion of the
Mortgaged Property.
(i) The assignment of Leases and Rents contained in this Section V is
made pursuant to provisions of La. R.S. 9:4401 et sea.
SECTION VI - EVENTS OF DEFAULT
(a) Events of Default. As used in this Mortgage, "Event of Default" shall
mean:
(i) The occurrence of an Event of Default under the Indenture, or
(ii) A breach or violation of the terms of this Mortgage,
or
(iii) If any representation or warranty made by the Mortgagor proves to
have been incorrect in any material respect, or
(iv) A writ or warrant of executory process, fieri facias, attachment
or any similar process being issued by any court against the Mortgaged
Property, and such writ or warrant is not released or bonded within ten (10)
days after its entry.
(b) Remedies. Upon the occurrence and during the continuance of any
Event of Default, in addition to any other rights and remedies Mortgagee may
have pursuant to this Mortgage or as provided by law, the Mortgagee may
declare the entire principal amount of the Secured Obligations then
outstanding including interest accrued thereon to be immediately due and
payable without presentment, demand, protest, notice of protest or dishonor
or other notice of default of any kind, all of which are hereby expressly
waived by the Mortgagor, and without limitation, Mortgagee may take such
action, without notice or demand, as it deems advisable and is permitted by
law to protect and enforce its rights against Mortgagor and in and to the
Mortgaged Property, including, but not limited to, the following actions,
each of which may be pursued concurrently or otherwise, at such time and in
such manner and order as Mortgagee may determine, in its sole discretion,
without impairing or otherwise affecting the other rights and remedies of
Mortgagee, except to the extent otherwise provided by law:
(i)
(A) Mortgagee shall have the right and option to proceed with
foreclosure of the Mortgaged Property in such manner as permitted or
required by applicable law relating to the sale of real estate and exercise
all rights of a secured party under the UCC whether relating to the sale of
collateral after default by a debtor, or otherwise,(as such applicable laws
and UCC now exist or as may be hereafter amended)or by any other present or
subsequent articles or enactments relating to the sale of real estate or
collateral.
(B) Mortgagor agrees to surrender possession of the hereinabove
described Mortgaged Property to the purchaser at the aforesaid sale,
immediately after such sale, in the event such possession has not previously
been surrendered by Mortgagor. The right of sale hereunder shall not be
exhausted by one or more such sales, and Mortgagee may cause to occur other
and successive sales until all of the Mortgaged Property be legally sold or
all of the Secured Obligations shall have been paid.
(ii)
(A) Upon the occurrence and during the continuance of any Event of
Default, Mortgagee shall have the right and power to proceed by a suit or
suits in equity or at law, whether for the specific performance of any
covenant or agreement herein contained or in aid of the execution of any
power herein granted, or for any foreclosure hereunder or for the sale of
the Mortgaged Property under the judgment or decree of any court or courts
of competent jurisdiction, or for the appointment of a receiver or keeper
pending any foreclosure hereunder or the sale of the Mortgaged Property
under the order of a court or courts of competent jurisdiction or under
executory or other legal process, or for the enforcement of any other
appropriate legal or equitable remedy. Any money advanced by Mortgagee in
connection with any such receivership shall be a demand obligation (which
obligation Mortgagor hereby expressly promises to pay) owing by Mortgagor to
Mortgagee and shall bear interest from the date of making such advance by
Mortgagee until paid at the Note Rate, all of which shall constitute a
portion of the Secured Obligations and shall be secured by this Mortgage and
by any other instrument securing the Secured Obligations.
(B) Mortgagor agrees to the full extent that it lawfully may, that, in
case one or more of the Events of Default shall have occurred and shall not
have been remedied, then, and in every such case, Mortgagee shall have the
right and power to enter into and upon and take possession of all or any
part of the Mortgaged Property in the possession of Mortgagor, its
successors or assigns, or its or their agents or servants, and may exclude
Mortgagor, its successors or assigns, and all persons claiming under
Mortgagor, and its or their agents or servants wholly or partly therefrom;
and, holding the same, Mortgagee may use, administer, manage, operate and
control the Mortgaged Property and conduct the business thereof to the same
extent as Mortgagor, its successors or assigns, might at the time do and may
exercise all rights and powers of Mortgagor, in the name, place and stead of
Mortgagor, or otherwise as Mortgagee shall deem best. All costs, expenses
and liabilities of every character incurred by Mortgagee in administering,
managing, operating, and controlling the Mortgaged Property shall constitute
a demand obligation (which obligation Mortgagor hereby expressly promises to
pay) owing by Mortgagor to Mortgagee and shall bear interest from date of
expenditure until paid at the Note Rate, all of which shall constitute a
portion of the Secured Obligations and shall be secured by this Mortgage and
by any other instrument securing the Secured Obligations. In connection
with any action taken by Mortgagee pursuant to this subsection (ii),
Mortgagee shall not be liable for any loss sustained by Mortgagor resulting
from any act or omission of Mortgagee in administering, managing, operating
or controlling the Mortgaged Property, including a loss arising from the
ordinary negligence of Mortgagee, unless such loss is caused by its own
gross negligence or willful misconduct and bad faith, nor shall Mortgagee be
obligated to perform or discharge any obligation, duty or liability of
Mortgagor.
(C) Mortgagor shall and does herein agree to indemnify Mortgagee for,
and to hold Mortgagee harmless from, any and all liability, loss or damage
which may or might be incurred by Mortgagee by reason of this Mortgage or
the exercise of rights or remedies hereunder, including a loss arising from
the ordinary negligence of the Mortgagee, except as such liability, loss or
damage is occasioned by the gross negligence or willful misconduct of such
party; should Mortgagee make any expenditure on account of any such
liability, loss or damage, the amount thereof, including costs, expenses and
reasonable attorneys, fees, shall be a demand obligation (which obligation
Mortgagor hereby expressly promises to pay) owing by Mortgagor to Mortgagee
and shall bear interest from the date expended until paid at the Note Rate,
shall be a part of the Secured Obligations and shall be secured by this
Mortgage and any other instrument securing the Secured Obligations.
(D) Mortgagor hereby assents to, ratifies and confirms any and all
actions of Mortgagee with respect to the Mortgaged Property taken under this
paragraph (ii).
(iii) Every right, power and remedy herein given to Mortgagee shall be
cumulative and in addition to every other right, power and remedy herein
specifically given or now or hereafter existing in equity, at law or by
statute; and each and every right, power and remedy whether specifically
herein given or otherwise existing may be exercised from time to time and so
often and in such order as may be deemed expedient by Mortgagee, and the
exercise, or the beginning of the exercise, of any such right, power or
remedy shall not be deemed a waiver of the right to exercise, at the same
time or thereafter any other right, power or remedy. No delay or omission
by Mortgagee in the exercise of any right, power or remedy shall impair any
such right, power or remedy or operate as a waiver thereof or of any other
right, power or remedy then or thereafter existing.
(iv) To the extent permitted under applicable law, Mortgagee shall have
the right (but shall not be obligated to) to become the purchaser at any
sale held by any receiver or public officer, whether by judicial procedure
or otherwise, and shall have the right (but shall not be obligated to) to
have all or any part of the Secured Obligations then owing credited against
the amount of the bid made by Mortgagee at such sale.
(v) Upon any sale, whether or by virtue of judicial proceedings or
otherwise, it shall not be necessary for any public officer acting under
execution or order of court to have physically present or constructively in
his or her possession any of the Mortgaged Property, and Mortgagor hereby
agrees to deliver all of such personal property to the purchasers at such
sale on the date of sale, and if it should be impossible or impracticable to
make actual delivery of such property, then the title and right of
possession to such property shall pass to the purchaser at such sale as
completely as if such property had been actually present and delivered.
(vi) Upon any sale, whether made or by virtue of judicial proceedings
or otherwise, the receipt of the officer making a sale under judicial
proceedings, shall be a sufficient discharge to the purchaser or purchasers
at any sale for his or her or their purchase money, and such purchaser or
purchasers, his or her or their assigns or personal representatives, shall
not,-after paying such purchase money and receiving such receipt of such
officer therefor, be obliged to see to the application of such purchase
money, or be in anywise answerable for any loss, misapplication or
nonapplication thereof.
(vii)
(A) Any sale or sales of the Mortgaged Property or any part thereof,
whether under and by virtue of judicial proceedings or otherwise, shall
operate to divest all right, title, interest, claim and demand whatsoever,
either at law or in equity, of Mortgagor of, in and to the Premises and the
Mortgaged Property sold, and shall be a perpetual bar, both at law and in
equity, against Mortgagor, its successors and assigns, and against any and
all persons claiming or who shall thereafter claim all or any of the
property sold from, through or under Mortgagor, its successors and assigns;
and Mortgagor, if requested by Mortgagee to do so, shall join in the
execution and delivery of all proper conveyances,, assignments and transfers
of the properties so sold.
(B) The proceeds of any sale of the Mortgaged Property or any part
thereof and all other moneys received by Mortgagee in any proceedings for
the enforcement hereof, whose application has not elsewhere herein been
specifically provided for, shall be applied first, to the payment of all
expenses incurred by Mortgagee incident to the enforcement of this Mortgage
or any of the Secured Obligations (including, without limiting the
generality of the foregoing, expenses of any entry or taking of possession,
of any sale, of advertisement thereof, and of conveyances, and court costs,
compensation of agents and employees and reasonable attorneys' fees), and to
the payment of all other charges, expenses, liabilities and advances
incurred or made by Mortgagee under this Mortgage; and then to the payment
of the Secured Obligations in such order and manner as is determined by
Mortgagee in its sole discretion.
(C) Mortgagee may resort to any security given by this Mortgage or to
any other security now existing or hereafter given to secure the payment of
any of the Secured Obligations secured hereby, in whole or in part, and in
such portions and in such order as may seem best to Mortgagee in its sole
discretion and any such action shall not in anywise be-considered as a
waiver of any of the rights, benefits or Liens created by this Mortgage.
(D) Mortgagor agrees, to the full extent that it may lawfully so agree,
that it will not at any time insist upon or plead or in any manner whatever
claim or take the benefit or advantage of any appraisement, valuation, stay,
extension or redemption law now or hereafter in force, in order to prevent
or hinder the enforcement or foreclosure of this Mortgage or the absolute
sale of the Mortgaged Property or the possession thereof by any purchaser at
any sale made pursuant to any provision hereof, or pursuant to the decree of
any court of competent jurisdiction; but Mortgagor, for itself and all who
may claim through or under it, so far as it or they now or hereafter
lawfully may, hereby waives the benefit of all such laws. Mortgagor, for
itself and all who may claim through or under it, waives any and all right
to have the property included in the Mortgaged Property marshaled upon any
foreclosure of the Lien hereof, and agrees that any court having
jurisdiction to foreclose such Lien may sell the Mortgaged Property as an
entirety. If any law referred to herein and now in force, of which
Mortgagor or its successor or successors might take advantage despite the
provisions hereof, shall hereafter be repealed or cease to be in force, such
law shall not thereafter be deemed to constitute any part of the contract
herein contained or to preclude the operation or application of the
provisions hereof.
(E) If the proceeds of any sale or other lawful disposition of the
Mortgaged Property by Mortgagee are insufficient to pay the Secured
Obligations, then Mortgagor shall pay or cause to be paid any deficiency.
(viii) Without in any manner limiting the generality of any of the
other provisions of this Mortgage; (A) some portions of the goods described
or to which reference is made herein are or are to become fixtures on the
Land described or to which reference is made herein; (B) the security
interests created hereby under the UCC will, to the extent not covered by
the mortgage created herein, attach to minerals including oil and gas; (C)
this Mortgage may be filed as a financing statement; and (D) Mortgagor is
the record owner of the real estate or interests in the real estate
comprised of the Mortgaged Property.
(ix) The Mortgaged Property may be sold in one or more parcels or as a
whole and in such manner and order as Mortgagee, in its sole discretion, may
determine.
(x) For purposes of Louisiana executory process, Mortgagor acknowledges
the Secured Obligations secured hereby, whether now existing or to arise
hereafter, and confesses judgment thereon if not paid when due, including,
but not limited to, principal, interest, late charges, attorneys' fees,
court costs, and any and all other sums due from Mortgagor to Mortgagee.
Upon the occurrence of an Event of Default hereunder and at any time
thereafter so long as the same shall be continuing, and in addition to all
other rights and remedies granted Mortgagee hereunder, it shall be lawful
for and Mortgagor hereby authorizes Mortgagee without making a demand or
putting Mortgagor in default, a putting in default being expressly waived,
to cause all and singular the Mortgaged Property to be seized and sold,
Mortgagor-waiving the benefit of any and all laws or parts of laws relative
to appraisement of property, seized and sold under executory process or
other legal process, and consenting that the Mortgaged Property be sold
without appraisement, either in its entirety or in lots or parcels, as
Mortgagee may determine, to the highest bidder for cash or on such other
terms as the plaintiff in such proceedings may direct. In addition,
Mortgagee shall have all of the rights and remedies available to it under
this Mortgage, as a mortgagee under Louisiana law or as a secured party
under the UCC, then in effect.
(xi) Mortgagor hereby waives in favor of the Mortgagee:
(A) the benefit of appraisement provided for in Articles 2332, 2336,
2723 and 2724 of the Louisiana Code of Civil Procedure and all other laws
conferring the same;
(B) the demand f or payment and three (3) days notice of demand for
payment as provided in Articles 2639 and 2721 of the Louisiana Code of Civil
Procedure;
(C) the notice of seizure provided by Articles 2293 and 2721 of the
Louisiana Code of Civil Procedure; and
(D) the three (3) days delay provided for in Articles 2331 and 2722 of
the Louisiana Code of Civil Procedure;
(E) the benefit of the other provisions of Articles 2331, 2722 and 2723
of the Louisiana Code of Civil Procedure, not specifically mentioned above;
and
(F) any and all exemptions of seizure or otherwise to which Mortgagor
is or may be entitled under the constitution and statutes of the State of
Louisiana insofar as the Mortgaged Property is concerned.
(xii) In the event the Mortgaged Property, or any part thereof, is
seized as an incident to an action for the recognition or enforcement of
this Mortgage by executory process, ordinary process, sequestration, writ of
fieri facias or otherwise, the Mortgagor and the Mortgagee agree that the
court issuing any such order shall, if petitioned for by Mortgagee, direct
the applicable sheriff to appoint as a keeper of the Mortgaged Property, the
Mortgagee or any agent designated by Mortgagee or any person named by
Mortgagee at the time such seizure is effected, without bond. This
designation is pursuant to Louisiana Revised Statutes 9:5136 through 5140.2,
inclusive, as the same may be amended, and the Mortgagee shall be entitled
to all the rights and benefits afforded thereunder. It is hereby agreed
that the keeper shall be entitled to receive as compensation, in excess of
its reasonable costs and expenses incurred in the administration or
preservation of the Mortgaged Property, an amount equal to 5% of the gross
revenues of the Mortgaged Property, which shall be included in the Secured
Obligations secured by this Mortgage. The designation of keeper made herein
shall not be deemed to require the Mortgagee to provoke the appointment of
such a keeper.
(xiii) Any and all declarations of facts made by authentic act before a
notary public in the presence of two witnesses by a person declaring that
such facts lie within his knowledge, shall constitute authentic evidence of
such facts for the purpose of executory process. The Mortgagor specifically
agrees that such an affidavit by a representative of the Mortgagee as to the
existence, amount, terms and maturity of the Secured Obligations and of a
default thereunder shall constitute authentic evidence of such facts for the
purpose of executory process.
Mortgagee's exercise of the foregoing remedies will not be construed to
constitute Mortgagee as a mortgagee in possession of the Mortgaged Property
nor to obligate Mortgagee to take any action or to incur expenses or perform
or discharge any obligation, duty or liability of Mortgagor under any lease,
or for the control, care, management, or repair of the Mortgaged Property;
nor will it operate to make Mortgagee responsible or liable for any waste
committed on the Mortgaged Property by any Person or for any dangerous or
defective condition of the Mortgaged Property, or for any act or omission
relating to the management, upkeep, repair, or control of the Mortgaged
Property that results in loss or injury or death to any Person.
SECTION VII - CERTAIN DEFINITIONS
As used herein, the following terms shall have the following meanings:
"Additional Undertaking" shall mean (a) cash or cash equivalents or (b)
a Surety Bond, an Additional Undertaking Guarantee or an Additional
Undertaking Letter of Credit which is provided by a Person whose long-term
unsecured debt is rated at least "AA" (or equivalent) by a nationally
recognized statistical rating agency and is otherwise satisfactory to
Mortgagee. Additional Undertakings shall be addressed directly to Mortgagee
and shall name Mortgagee as the beneficiary thereof and the party entitled
to make claims thereunder.
"Additional Undertaking Guarantee" shall mean the unconditional
guarantee of payment of any corporation or partnership organized and
existing under the laws of the United States of America or any State or the
District of Columbia or Canada or province thereof that has a long-term
unsecured debt rating satisfactory to Mortgagee at the time such guarantee
is delivered, given to Mortgagee, accompanied by an opinion of counsel to
such guarantor to the effect that such guarantee has been duly authorized,
executed and delivered by such guarantor and constitutes the legal, valid
and binding obligation of such guarantor enforceable against such guarantor
by Mortgagee in accordance with its terms, subject to customary exceptions
at the time for opinions for such instruments, together with an opinion of
counsel to the effect that, taking into account the purpose under this
Mortgage for which such guarantee will be given, such guarantee and
accompanying opinion are responsive to the requirements of this Mortgage.
"ADDITIONAL UNDERTAKING LETTER OF CREDIT" shall mean a clean, irrevocable,
unconditional letter of credit in favor of Mortgagee and entitling Mortgagee
to draw thereon in The City of New York issued by a bank satisfactory to
Mortgagee, accompanied by an opinion of counsel to such bank to the effect
that such letter of credit has been duly authorized, executed and delivered
by such bank and constitutes the legal, valid and binding obligation of such
bank enforceable against such bank by Mortgagee in accordance with its terms
subject to customary exceptions at the time for opinions for such
instruments, together with an opinion of counsel to the effect that, taking
into account the purpose under - this Mortgage for which such letter of
credit will be given, such letter of credit and accompanying opinion are
responsive to the requirements of this Mortgage.
"COLLATERAL ACCOUNT" shall have the meaning set forth in the Indenture.
"ENVIRONMENTAL LAW" or "ENVIRONMENTAL LAWS" means any and all present and
future statutes, rules, regulations, orders, administrative orders, judicial
orders, judgments, judicial decisions, decrees, laws, rulings, permits,
licenses, certificates, codes and ordinances from any and all federal,
state, parish, district, municipal, city, local and other legislative
bodies, courts, boards, agencies, administrative agencies, commissions,
bodies, councils, offices and authorities of any nature whatsoever in any
way relating to or applicable to (a) the protection of health, safety, and
the indoor and outdoor environment, (b) the conservation, management, and
use of natural resources and wildlife, (c) the protection and use of surface
water and groundwater, (d) the management, manufacture, possession,
presence, use, generation, transportation, treatment, storage, disposal,
release, threatened release, abatement, removal, remediation or handling of,
or exposure to, any Hazardous Materials (as defined herein), and (e)
pollution (including any release to air, land, surface water, and
groundwater), and includes, but is not limited to, the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980, as amended
by the Superfund Amendments and Reauthorization Act of 1986, 42 U.S.C.
559601 et seq., the Solid Waste Disposal Act, as amended by the Resources
Conservation and Recovery Act of 1976 and the Hazardous and Solid Waste
Amendments of 1984, 42 U.S.C. Sec.'s 6901 et seq., the Federal Water
Pollution Control Act, 33 U.S.C. Sec.'s 1251 et seq., the Clean Air Act, 42
U.S.C. 557401 et seq., the Toxic Substances Control Act, 15 U.S.C. 552601 et
seq., the Coastal Zone Management Act of 1972, 16 U.S.C. Sec.'s 51451, et
seq., the Endangered Species Act of 1973, 16 U.S.C. 551531, et seq., the
Coastal Wetlands Planning, Protection and Restoration Act, 16 U.S.C. Sec.'s
3951, et seq., the Hazardous Materials Transportation Act, 49 U.S.C. 551801
et seq., the Occupational Safety and Health Act of 1970, 29 U.S.C. Sec.'s
651 et seq., the Oil Pollution Act of 1990, 33 U.S.C. Sec.'s 52701 et seq.,
the Emergency Planning and Community Right-to-Know Act of 1986, 42 U.S.C.
Sec.'s 11001 et seq., the National Environmental Policy Act of 1969, 42
U.S.C. 554321 et seq., the Noise Control Act of 1972, 42 U.S.C. Sec.'s 4901,
et seq., the Safe Drinking Water Act,' 42 U.S.C. Sec.'s 5300(f) et seq., the
Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C. Sec.'s 136 et
seq., any and all similar or related state laws and regulations, including,
but not limited to, the Louisiana Environmental Quality Act, La. R.S.
Sec.'s 30:2001 et seq., the State and Local Coastal Resources Management Act
of 1978, La. R. S. Sec.'s 549:214.21 et seq., the Louisiana Coastal
Wetlands Conservation and Restoration Act, La. R.S. Sec.'s 49:214.1 et seq.,
the Louisiana Abandoned Oilfield Waste Site Law, La. R.S. Sec.'s 30:71 et
seq., the Louisiana Oilfield Site Restoration Law, La. R. S. Sec.'s 30:80
et seq., the Louisiana Hazardous Materials Transportation and Motor Carrier
Safety Act, La. R.S. Sec.'s 532:1501 et seq., the Louisiana Pesticide Law,
La. R.S. Sec.'s 3:3301 et seq., the Natural Resources and Energy Act of
1973 and the Louisiana Hazardous Liquid Pipeline Law, La. R.S. Sec.'s
30:501 et seq., the Surface Mining and Reclamation Act, La. R.S. Sec.'s
30:901 et seq., the Threatened and Endangered Species Conservation Law, La.
R.S. 5556:1901 et seq., any and all similar, implementing or successor laws,
and any and all amendments, rules, regulations orders and directives issued
thereunder or relating thereto.
"EXCEPTED-LIENS" shall mean those Liens listed on Exhibit A attached hereto.
"GOVERNMENTAL AUTHORITY" shall include the country, the state, parish, city
and political subdivisions in which any Person or such Person's Property is
located or which exercises valid jurisdiction over any such Person or such
Person's Property, and any court, agency, department, commission, board,
bureau or instrumentality of any of them including monetary authorities
which exercises valid jurisdiction over any such Person or such Person's
Property. Unless otherwise specified, all references to Governmental
Authority herein shall mean a Governmental Authority having jurisdiction
over, where applicable, Mortgagor or Mortgagee or any other Secured Party.
"GOVERNMENTAL REQUIREMENT" shall mean any law, statute, code, ordinance,
order, determination, rule, regulation, judgment, decree, injunction,
franchise, permit, certificate, license, authorization or other directive or
requirement, including, without limitation, Environmental Laws, energy
regulations and occupational safety and health standards or controls, of any
Governmental Authority.
"HAZARDOUS MATERIALS" means any and all hazardous or toxic chemicals, waste,
by-products, pollutants, contaminants, compounds, products or substances,
including, without limitation, medical waste, biological waste, asbestos
(including asbestos containing materials or substances), polychlorinated
byphonyls, petroleum (including crude oil or any fraction thereof, petroleum
derivatives, and petroleum by-products), any and all materials of any and
every kind, the exposure to, or manufacture, possession, presence, use,
generation, storage, transportation, treatment, spill, release, disposal,
abatement, clean-up, removal, remediation or handling of which, either by
itself or in combination with other materials located or expected to be on
or near the Mortgaged Property, (a) is prohibited, controlled or regulated
by any Environmental Law, (b) poses a threat or nuisance to health, safety,
welfare, the environment, or the Mortgaged property, (c) due to its
characteristics or interaction with one or more other substances, wastes,
chemicals, compounds or mixtures, damages or threatens to damage health,
safety, or the environment or is required to be remediated by any law,
including, but not limited to, Environmental Laws, (d) is hazardous, toxic,
ignitable, radioactive, corrosive, or reactive and which is regulated by any
law, including, but not limited to, Environmental Laws, (e) is regulated or
monitored by any governmental authority, or (f) is a basis for potential
liability of Mortgagor to any governmental authority or third party under
any Environmental Law or any other applicable law, rule, judgment, order or
regulation. Hazardous Materials shall include, but are not limited to,
hydrocarbons, petroleum, gasoline, crude oil and any products or byproducts
thereof.
"HOLDER" or "NOTEHOLDER" shall mean the person in whose name the Notes, or
any one of them is officially registered from time to time pursuant to the
terms of the Indenture.
"LIEN" shall mean any interest in the Mortgaged Property owed to, or a claim
by a Person, whether such interest is based on law, statute or contract, and
whether such obligation or claim is fixed or contingent, and including but
not limited to the lien or security interest arising from a mortgage,
encumbrance, pledge, security agreement, conditional sale or trust receipt
or a lease, consignment or bailment for security purposes. The term "LIEN"
shall also include reservations, exceptions, encroachments, easements,
rights of way, covenants, conditions, restrictions, leases and other title
exceptions and encumbrances affecting the Mortgaged Property.
"MATERIAL ADVERSE EFFECT" shall mean, as to any Person, asset or Property, a
material adverse effect on the business, assets, properties, condition
(financial or other), operations or results of operations of such Person,
asset or Property, which effect is not adequately and effectively insured or
indemnified against by a financially sound insurance company, and excepting
effects arising solely out of general national economic conditions and/or
effects arising solely out of matters affecting the industry in which such
Person, asset or Property conducts business a whole.
"NOTE RATE" shall mean the rate borne by the Notes, that is 11-1/2% per
annum.
"NOTEHOLDER" see "HOLDER"
"PERSON" shall mean any individual, corporation, company, voluntary
association, partnership, joint venture, trust, unincorporated organization
or government or any agency, instrumentality or political subdivision
thereof, or any other form of entity.
"PROPERTY" shall mean any interest in any kind of property or asset, whether
real, personal or mixed, or tangible or intangible.
"STATE" shall mean the state where the Land is located.
"SURETY BOND" shall mean a clean irrevocable surety bond or credit insurance
policy in favor of Mortgagee issued by an insurance company the claims
paying ability rating of which at the time such surety bond or credit
insurance policy is delivered is satisfactory to Mortgagee, accompanied by
an opinion of counsel to such insurance company to the effect that such
surety bond or credit insurance policy has been duly authorized, executed
and delivered by such insurance company and constitutes the legal, valid and
binding obligation of such insurance company enforceable against such
insurance company by Mortgagee in accordance with its terms subject to
customary exceptions at the time for opinions for such instruments, together
with an opinion of counsel to the effect that, taking into account the
purpose under this Mortgage for which such surety bond will be given, such
surety bond and accompanying opinions are responsive to the requirements of
this Mortgage.
"Trust Money" shall mean those certain proceeds set forth in subsections
IV(a)(i) and IV(a)(ii).
SECTION VIII - MISCELLANEOUS
(a) CHOICE OF LAW. The terms and provisions of this Mortgage and the
enforcement hereof shall be governed by and construed in accordance with the
laws of the State of Louisiana.
(b) SEVERABILITY. If any provision hereof is invalid or unenforceable
in any jurisdiction, the other provisions hereof shall remain in full force
and effect in such jurisdiction and the remaining provisions hereof shall-be
liberally construed in favor of Mortgagee in order to effectuate the
provisions hereof, and the invalidity or unenforceability of any provision
hereof in any jurisdiction shall not affect the validity or enforceability
of any such provision in any other jurisdiction. If any part of the Secured
Obligations cannot be lawfully secured by this Mortgage or if any part of
the Mortgaged Property cannot be lawfully subject to the Lien and security
interest hereof to the full extent of such Secured Obligations, then all
payments made shall be applied on said Secured Obligations first in
discharge of that portion thereof which is not secured by this Mortgage.
(c) CONSTRUCTION OF THIS INSTRUMENT. This instrument may be construed
as a mortgage, assignment, security agreement, fixture filing, pledge,
financing statement, hypothecation or contract, or any one or more of them,
in order fully to effectuate the Lien hereof and the purposes and agreements
herein set forth.
(d) CAPTIONS; GENDER AND NUMBER. The captions and section headings of
this Mortgage are for convenience only and are not to be used to define the
provisions hereof. The term "Mortgagee" as used herein shall mean and
include any successors to or assigns of First Trust National Association in
its capacity as Indenture Trustee under the Indenture. The terms used to
designate Mortgagee and Mortgagor shall be deemed to include the respective
heirs, legal representatives, successors and assigns of such parties. All
terms contained herein shall be construed, whenever the context of this
Mortgage so requires, so that the singular includes the plural and so that
the masculine includes the feminine.
(e) RIGHTS OF MORTGAGEE. The Lien, security interest and other
security rights of Mortgagee hereunder shall not be impaired by any
indulgence, moratorium or release granted by Mortgagee, including, but not
limited to, any renewal, extension or modification with respect to any
Secured Obligation, or any surrender, compromise, release, renewal,
extension, exchange or substitution which Mortgagee may grant in respect of
the Mortgaged Property, or any part thereof or any interest therein, or any
release or indulgence granted to any endorser, guarantor or surety of any
Secured obligation.
(f) WAIVER OF AN EVENT OF DEFAULT. Mortgagee may waive any Event of
Default without waiving any other prior or subsequent Event of Default.
Mortgagee may remedy any Event of Default without waiving the Event of
Default remedied. No single or partial exercise by Mortgagee of any right,
power or remedy hereunder shall exhaust the same or shall preclude any other
or further exercise thereof, and every such right, power or remedy hereunder
may be exercised at any time and from time to time. No modification or
waiver of any provision hereof nor consent to any departure by Mortgagor
therefrom shall in any event be effective unless the same shall be in
writing and signed by Mortgagee and then such waiver or consent shall be
effective only in the specific instances, for the purpose for which given
and to the extent therein specified. No notice to nor demand on Mortgagor
if any case shall of itself entitle Mortgagor to any other or further notice
of demand in similar or other circumstances. Acceptance by Mortgagee of any
payment in an amount less than the amount then due on any Secured
Obligations shall be deemed an acceptance on account only and shall not in
any way excuse the existence of an Event of Default hereunder.
(g) SUCCESSOR MORTGAGOR. In the event the ownership of the Mortgaged
Property or any part thereof becomes vested in a person other than
Mortgagor, Mortgagee may, without notice to Mortgagor, deal with such
successor or successors in interest with reference to this Mortgage and the
Secured Obligations in the same manner as with Mortgagor, without in any way
vitiating or discharging Mortgagor's liability hereunder or for the payment
of the Secured Obligations or performance of the obligations secured hereby.
No transfer of the Mortgaged Property, no forbearance on the part of
Mortgagee and/or any other Secured Party, and no extension of the time for
the payment of the Secured Obligations, in whole or in part, shall affect
the liability of Mortgagor or any other person hereunder or for obligations
secured hereby.
(h) LEFT BLANK INTENTIONALLY
(i) COVENANTS RUNNING WITH THE LAND. The covenants and agreements
herein contained shall constitute covenants running with the land and
interests covered or affected hereby and shall be binding upon the heirs,
legal-representatives, successors and assigns of the parties hereto.
(j) NOTICES. All notices requests, demands and other communications
provided for or permitted hereunder shall be in writing (including telex and
telecopy communications) and shall be sent by mail, telex, telecopier or
hand delivery:
If to Mortgagor, to the following address:
C-M of Louisiana, Inc.
711 Casino Magic Drive
Bay St. Louis, Mississippi 39520
Attention: Robert A. Callaway
With a copy to:
Daniel K. Rester, Esq.
Hoffman Sutterfield Ensenat
P. 0. Drawer 4407
2431 South Acadian Thruway, Suite 600
Baton Rouge, Louisiana 70821-4407
If to Mortgagee, to the following address:
First Trust National Association
180 East Fifth Street
St. Paul, Minnesota 55101
Attention: Scott Strodthoff
With a copy to:
Mark G. Rabogliatti, Esq.
Oppenheimer Wolff & Donnelly
Plaza VII
45 South Seventh Street, Suite 3400
Minneapolis, Minnesota 55402
All such notices, requests, demands and communications shall be deemed to
have been duly given or made, when delivered by hand or five (5) business
days after being deposited in the mail, postage paid, when telexed answer
back received and when telecopied, receipt acknowledged. Any party hereto
may change its address set forth in this subsection (1) by notice to the
other parties given in accordance with the provisions of this subsection
(1).
(k) MORTGAGEE'S CONSENT. Except where otherwise expressly provided
herein, in any instance hereunder where the approval, consent or the
exercise of judgment of Mortgagee is required, the granting or denial of
such approval or consent and the exercise of such judgment shall be within
the sole discretion of Mortgagee, and Mortgagee shall not, for any reason or
to any extent, be required to grant such approval or consent or exercise
such judgment in any particular manner, regardless of the reasonableness of
either the request or Mortgagee's judgment.
(l) FORECLOSURE. In the event there is a foreclosure sale hereunder,
and at the time of such sale Mortgagor or Mortgagor's successors or assigns
or any other person claiming any interest in the Mortgaged Property by,
through or under Mortgagor, are occupying or using the Mortgaged Property or
any part thereof, each and all shall immediately become the tenant of the
purchaser at such sale, which tenancy shall be a tenancy from day to day,
terminable at the will of either the landlord or tenant, at a reasonable
rental per day based upon the value of the property occupied, such rental to
be due daily to the purchaser; to the extent permitted by applicable law,
the purchaser at such sale shall, notwithstanding any language herein
apparently to the contrary, have the sole option to demand immediate
possession following the sale or to permit the occupants to remain as
tenants at will. In the event the tenant fails to surrender possession of
said property upon demand, the purchaser shall be entitled to institute and
maintain a summary action for possession of the Mortgaged Property in any
court having jurisdiction. The purchaser or purchasers at foreclosure shall
have the right to affirm or disaffirm any lease of the Mortgaged Property or
any part thereof.
(m) REIMBURSEMENT. Mortgagor shall reimburse Mortgagee, upon demand,
for all fees, including reasonable attorneys' fees, costs and expenses
incurred by Mortgagee in connection with the administration and enforcement
of this Mortgage and/or the Secured Obligations. If any action or
proceedings, including, without limitation, bankruptcy or insolvency
proceedings, is commenced to which action or proceeding Mortgagee is made a
party or in which it becomes necessary to defend or uphold the Lien or
validity of this Mortgage, Mortgagor shall, upon demand, reimburse Mortgagee
for all expenses (including, without limitation, attorneys, and agents' fees
and disbursement) incurred by Mortgagee in such action or proceedings. In
any action or proceeding to foreclose this Mortgage or to recover or collect
the Secured Obligations, the provisions of law relating to the recovery of
costs, disbursements and allowances shall prevail unaffected by this
covenant. Mortgagor's obligations under this subsection VIII (M) shall
survive the satisfaction of this Mortgage and the discharge of Mortgagor's
other obligations hereunder.
(n) WAIVER OF STAY.
(i) Mortgagor agrees that in the event that Mortgagor or any
property or assets of Mortgagor shall hereafter become subject of a
voluntary or involuntary proceeding under the Bankruptcy Code or Mortgagor
shall otherwise be a party to any federal or state bankruptcy, insolvency,
moratorium or similar proceeding to which the provisions relating to the
automatic stay under Section 362 of the Bankruptcy Code or any similar
provision in any such law is applicable, then, in any such case, whether or
not Mortgagee has commenced foreclosure proceedings under this Mortgage,
Mortgagee shall be entitled to relief from any such automatic stay as it
relates to the exercise of any of the rights and remedies (including,
without limitation, any foreclosure proceedings) available to Mortgagee as
provided in this Mortgage or in any other document evidencing or securing
the Secured Obligations.
(ii) Mortgagee shall have the right to petition or move any court
having Jurisdiction over any proceeding described in subsection VIII(n)(i)
for the purposes provided therein, and Mortgagor agrees (a) not to oppose
any such petition or motion and (b) at Mortgagor's sole cost and expense, to
assist and cooperate with Mortgagee, as may be requested by Mortgagee from
time to time, in obtaining any relief requested by Mortgagee, including,
without limitation, by filing any such petitions, supplemental petitions,
requests for relief, documents, instruments or other items from time to time
requested by Mortgagee or any such court.
(o) Waiver of Jury Trial. To the extent permitted by law, Mortgagor
hereby knowingly, voluntarily and intentionally waives any rights it may
have to a trial by jury in the respect of any litigation based hereon, or
directly or indirectly arising out of, under or in connection with, this
Mortgage or any course of conduct, course of dealing, statements (whether
verbal or written) or actions of Mortgagor or Mortgagee.
(p) LEFT BLANK INTENTIONALLY
(q) ACCEPTANCE. The acceptance of this Mortgage by Mortgagee is
presumed, and therefore this Mortgage has not been executed and need not be
executed by Mortgagee.
(r) PROVISIONS OF THE INDENTURE. Notwithstanding anything to the
contrary contained in this Mortgage, it is the understanding of the parties
hereto that any actions by Mortgagee are subject to the provisions of the
Indenture; provided that (i) the provisions of this Mortgage shall govern
and control to the extent any provision of the Indenture would negate or
adversely affect the enforceability, validity, perfection or priority of the
Lien or security interest created by this Mortgage, and (ii) the provisions
of Sections I, II, III and V hereof shall govern and control in the event of
a conflict with the Indenture.
(s) ENVIRONMENTAL INDEMNITY. The Mortgagor will defend, indemnify and
hold Mortgagee and any other Secured Party and their directors, officers,
agents and employees harmless from and against all claims, demands, causes
of action, liabilities, losses, costs and expenses (including, without
limitation, costs of suit, reasonable attorneys' fees and fees of expert
witnesses) arising from or in connection with (i) the presence in, on or
under or the removal from the Mortgaged Property of any hazardous substances
or solid wastes (as defined elsewhere in this Mortgage), or any releases or
discharges of any hazardous substances or solid wastes on, under or from
such property, (ii) any activity carried on or undertaken on or off the
Mortgaged Property, whether prior to or during the term of this Mortgage,
and whether by Mortgagor or any predecessor in title or any officers,
employees, agents, contractors or subcontractors of Mortgagor or any
predecessor in title, or any third persons at any time occupying or present
on the Mortgaged Property, in connection with the handling, use, generation,
manufacture, treatment, removal, storage, decontamination, clean-up,
transport or disposal of any hazardous substances or solid wastes at any
time located or present on or under the Mortgaged Property, (iii) the
Mortgagor exercising its rights, whether under subsections IV(s)(iii) or
IV(t), or otherwise, including, but not limited to, the taking of any
remediation, removal, response or corrective action relating to Hazardous
Materials on the Mortgaged Property or the conducting of an environmental
audit or review of the Mortgaged Property or taking steps reasonably
necessary to comply with applicable law, regulations or orders, or (iii) any
breach of any representation, warranty or covenant under the terms of this
Mortgage. The foregoing indemnity shall further apply to any residual
contamination on or under the Mortgaged Property, or affecting any natural
resources, and to any contamination of the Mortgaged Property or natural
resources arising in connection with the generation, use, handling, storage,
transport or disposal of any such hazardous substances or solid wastes, and
irrespective of whether any of such activities were or will be undertaken in
accordance with applicable laws, regulations, codes and ordinances. Without
prejudice to the survival of any other agreements of the Mortgagor
hereunder, the provisions of this Section shall survive the final payment
and performance of the Secured Obligations and the termination of this
Mortgage and shall continue thereafter in full force and effect.
(t) CONTEMPLATED USE. The use of the phrases "contemplated use" and
"contemplated to be conducted" herein refers to the plans of the Mortgagor
to construct or have constructed and operate or have operated on the
Mortgaged Property a berthing facility for vessels, a land based boarding
facility, parking lot(s), restaurant(s), hotel and entertainment complex and
ancillary activities related thereto.
(u) CERTIFICATES. The production of mortgage, conveyance, tax research
or other certificates is waived by consent, and the Mortgagor and the
Mortgagee agree to hold me, Notary, harmless for failure to procure and
attach same.
THUS DONE AND PASSED, on the date first above written, in the presence
of the undersigned competent witnesses, who hereunto sign their names with
Mortgagor and me, Notary, after due reading of the whole.
WITNESSES: C-M OF LOUISIANA, INC. MORTGAGOR
BY: /s/ ROBERT A. CALLAWAY
/s/ NAME: ROBERT A. CALLAWAY
TITLE: SECRETARY
/s/
/S/ BERNARD H. BERINS
BERNARD H. BERINS, NOTARY PUBLIC
EXHIBIT "A"
EXCEPTED LIENS
None
UNANIMOUS WRITTEN CONSENT OF THE SOLE
SHAREHOLDER OF C-M OF LOUISIANA, INC.
The undersigned, the sole shareholder of C-M of Louisiana, Inc. having
voting power on the matters set forth herein, hereby consents, pursuant to
Section 76 of the Louisiana Business Corporation Law, to the following
corporate action:
WHEREAS, this corporation is a business corporation organized under the laws
of the State of Louisiana, and under its Charter and said laws has full
power and authority to assign, transfer, sell and deliver its own property;
to borrow money and to secure payment of the same by mortgage or pledge of
its own property, or otherwise, and all prerequisite steps and proceedings,
acts and things preliminary to the adoption of these resolutions have been
taken and done in due and proper form, time and matter.
WHEREAS, on the 21st day of February, 1996 a Stock Purchase Agreement
("Stock Purchase Agreement") was entered into among Casino Magic Corp.
("Magic"), a Minnesota corporation, Jefferson Casino Corporation ("JCC"), a
Louisiana Corporation, this corporation, Capital Gaming International, Inc.
("CGII"), a New Jersey corporation and Casino Magic of Louisiana, Corp., a
Louisiana corporation ("Casino Magic Louisiana" and together with CGII,
"Sellers"), with respect to the purchase by Magic, through JCC or another of
its wholly owned subsidiaries to which the Stock Purchase Agreement is
assigned in accordance with Paragraph 9 therein, of all of the newly issued
capital stock of reorganized Casino Magic Louisiana, which owns the Crescent
City Queen riverboat, the associated Louisiana riverboat gaming license
issued by the Louisiana Department of Public Safety and Corrections,
Riverboat Gaming Enforcement Division of the Office of State Police and
certain related assets.
WHEREAS, this corporation has agreed to enter, along with others, into that
certain Indenture dated as of the 13th day of May, 1996 by and among Casino
Magic Louisiana, as issuer, the Guarantors named therein, and First Trust
National Association, as Trustee, in the amount of $35,000,000.00
("Indenture").
WHEREAS, pursuant to Article XII of the Indenture, this corporation will
guarantee (such guaranty by this corporation being hereinafter referred to
as the "Guarantee") to the Noteholder(s) (as defined in the Indenture) and
to First Trust National Association, inter alia, the Notes (as defined in
the Indenture) or the obligations of Casino Magic Louisiana under the
Indenture, the Notes, and the other Collateral Documents (as defined in the
Indenture).
WHEREAS, an affiliate of this corporation, JCC will also, pursuant to
Article XII of the Indenture, guarantee the Notes or the obligations of
Casino Magic Louisiana under the Indenture or the Notes.
WHEREAS Casino Magic Louisiana as of the time of its execution of the
Indenture will be an affiliate of this corporation.
WHEREAS, the Noteholders are not willing to enter into the Indenture without
the execution by this corporation of the Guarantee.
WHEREAS, it is in the best interest of this corporation to assist Casino
Magic Louisiana in obtaining the financial accommodation set forth in the
Indenture because this corporation will receive an advantage and benefit
arising out of the Indenture, including, but not limited to the utilization
of the Real Property (as defined below).
WHEREAS, this corporation is the owner of that certain real property more
particularly described on Exhibit "A" attached hereto and made a part hereof
(hereinafter referred to as the "Real Property").
WHEREAS, this corporation has agreed to secure the Guarantee by executing a
Mortgage, Assignment of Leases and Rents and Security Agreement Securing
Future Advances, which said mortgage is to bear against the Real Property
and other property owned by or to be owned by this corporation.
WHEREAS, this corporation has agreed to enter into that certain Pledge and
Security Agreement dated as of the 13th day of May, 1996 by and among Casino
Magic Louisiana, this corporation. JCC, and First Trust National
Association ("Pledge").
RESOLVED that this corporation does hereby confirm and ratify any and all
actions taken on its behalf by Ed Ernst, its President, in the Stock
Purchase Agreement.
RESOLVED that Robert A. Callaway, this corporation's Secretary, be and is
hereby authorized and directed on behalf of this corporation to execute the
Indenture, including the Guarantee, and the Pledge, which Indenture,
Guarantee and Pledge to be in the form, substance and content as said
officer may deem necessary or appropriate.
FURTHER RESOLVED that as collateral and security for the Guarantee, this
corporation mortgage, pledge, hypothecate, deliver or grant a security
interest in any or all of the assets and properties of this corporation of
any nature whatsoever, whether immovable or movable, corporeal or
incorporeal, both now owned and hereafter acquired, together with all
proceeds thereof, including, but not limited to the following described
property, to-wit:
1. The Real Property;
2. All buildings, structures, facilities and other improvements now or
hereafter located on the Real Property;
3. All equipment (as, defined in the Louisiana Commercial Laws LA. RS
10:1101 et seq. (the "UCC")) now owned or hereafter acquired by this
corporation;
4. All of the leases, subleases, lettings and licenses and all other
contracts, bonds and agreements affecting the Real Property, the
improvements thereon and/or any other property or rights described herein
and all of the rents deriving therefrom;
5. Any and all moneys, goods, accounts, chattel paper, general and
tangibles, documents, instruments, contract rights and other real and
personal property (including property exchanged therefor) of every kind and
nature, which may from time to time be subjected to the lien granted by this
corporation to secure the Guarantee whether through a supplement to the
mortgage to be granted or otherwise;
6. All unearned premiums under insurance policies now or hereafter
obtained by mortgagor and all proceeds for conversion, voluntary or
involuntary of any of the property described herein.
FURTHER RESOLVED that Robert A. Callaway, this corporation's Secretary, be
and is hereby authorized and directed on behalf of this corporation to
execute and deliver to First Trust National Association one (1) or more
mortgages, whether a Mortgage, Assignment of Leases and Rents and Security
Agreement Securing Future Advances, or otherwise, in conventional or
collateral form, Security Agreements, Pledge Agreements, Assignments,
Financing Statements, Agreements and Certificates, as may be now or
hereafter required by First Trust National Association from time to time to
secure all or any portion of the Guarantee, including without limitation
supplemental or additional collateral documents encumbering assets and
properties of this corporation in the future. All such Mortgages, Security
Agreements, Pledge Agreements, Assignments, Financing Statements, Agreements
and Certificates to contain such terms, covenants and conditions as may be
approved by the said officer of this corporation, said officer's execution
and delivery thereof on behalf of this corporation to be conclusive evidence
of said officer's approval.
FURTHER RESOLVED that the documents described in the above paragraphs may
contain a confession of judgment, pact de non alienando, authorization of
executory process, waiver of appraisal, consent to private sale and other
remedial clauses as determined by First Trust National Association in its
sole discretion.
FURTHER RESOLVED that Robert A. Callaway, this corporation's Secretary, is
hereby authorized to do such further acts and things and execute any and all
documents and instruments, both original and amendatory, of every kind and
character on behalf of this corporation as may be necessary or appropriate,
in said officer's judgment, from time to time to carry out the terms of the
Indenture, Guarantee, Pledge, mortgages, Security
Agreements, Pledge Agreements, Assignments, Financing Statements, Agreements
and Certificates and the purposes of these Resolutions.
FURTHER RESOLVED that this corporation does hereby ratify and confirm any
action which Robert A. Callaway, this corporation's Secretary, may take
pursuant to these Resolutions.
This Unanimous Written Consent of the Sole Shareholder is dated May 9, 1996.
CASINO MAGIC CORP.,
SOLE SHAREHOLDER
BY: /s/ ROBERT A. CALLAWAY
NAME: ROBERT A. CALLAWAY
TITLE: SECRETARY
C E R T I F I C A T E
I, the undersigned Secretary of C-M of Louisiana, Inc., certify that (1) the
subscriber to the foregoing Unanimous Written Consent constitutes the sole
shareholder of this Corporation having voting power on the matters set forth
therein, (2) the same is the only action taken with respect to the matters
referred to therein and that such resolutions were not thereafter altered,
amended or repealed; and (3) the above and foregoing resolutions are good,
valid and binding upon C-M of Louisiana, Inc.
May 11, 1996
/s/ ROBERT A. CALLAWAY
ROBERT A. CALLAWAY, Secretary
C-M of Louisiana, Inc.
EXHIBIT "A"
1. TRACT "A"
A TRACT OF LAND LOCATED IN SECTION 32, T18N-R13W, BOSSIER CITY, BOSSIER
PARISH, AND/OR SECTIONS 31,32 OR 33, Tl8N-Rl3W, CADDO PARISH, LOUISIANA.
SAID TRACT BEING MORE FULLY DESCRIBED AS FOLLOWS:
BEGINNING AT A FOUND 1/2" DIAMETER IRON ROD BEING THE SOUTHWEST CORNER
OF LOT 35, COOK SUBDIVISION, AS RECORDED IN BOOK 141, PAGE 11 OF THE
CONVEYANCE RECORDS OF BOSSIER PARISH, RUN THENCE SOUTH 65-05'05" EAST ALONG
THE SOUTH LINE OF SAID COOK SUBDIVISION A DISTANCE OF 384.69 FEET TO A FOUND
1/2" DIAMETER IRON ROD,
THENCE RUN SOUTH 12'56'40" WEST A DISTANCE OF 150.37 FEET TO A FOUND
1/2" DIAMETER CRIMP TOP IRON PIPE,
THENCE RUN SOUTH 60'12'49" EAST A DISTANCE OF 168.20 FEET TO A FOUND
5/8" DIAMETER IRON ROD,
THENCE RUN SOUTH 26'06'32" WEST A DISTANCE OF 251.31 FEET TO A FOUND
1/2" DIAMETER IRON ROD BEING ON THE NORTHERLY RIGHT-OF-WAY LINE OF WOODLAWN
STREET,
THENCE RUN NORTH 70'42'00" WEST ALONG THE NORTHERLY RIGHT-OF-WAY LINE OF
WOODLAWN STREET A DISTANCE OF 575.91 FEET TO A FOUND 1/2" DIAMETER IRON PIPE
BEING AT THE INTERSECTION OF THE NORTHERLY RIGHT-OF-WAY LINE OF WOODLAWN
STREET WITH THE EASTERLY RIGHT-OF-WAY LINE OF KAYWOOD COURTS,
THENCE RUN NORTH 23'05'00" EAST ALONG THE EASTERLY RIGHT-OF-WAY LINE OF
KAYWOOD COURTS A DISTANCE OF 140.56 FEET TO A FOUND 1/2" DIAMETER IRON PIPE,
THENCE RUN NORTH 24'48'39" EAST ALONG THE EASTERLY RIGHT-OF-WAY LINE OF
KAYWOOD COURTS A DISTANCE OF 328.51 FEET TO THE POINT OF BEGINNING.
SAID TRACT CONTAINING 5.2319 ACRES.
2. TRACT "B"
A TRACT OF LAND LOCATED IN SECTION 32, T18N-R13W, BOSSIER CITY, BOSSIER
PARISH, AND/OR SECTIONS 31, 32 OR 33, Tl8N-Rl3W, CADDO PARISH, LOUISIANA.
SAID TRACT BEING MORE FULLY DESCRIBED AS FOLLOWS:
BEGINNING AT A FOUND 3/4" DIAMETER CRIMP TOP IRON PIPE BEING THE
SOUTHEAST CORNER OF LOT 8, KAYWOOD SUBDIVISION, AS RECORDED IN BOOK 339,
PAGE 229 OF THE CONVEYANCE RECORDS OF BOSSIER PARISH, RUN THENCE SOUTH
28'05'04" WEST A DISTANCE OF 335.76 FEET TO A SET 1/2" DIAMETER IRON ROD
BEING ON THE FORMER NORTHERLY HIGH BANK OF THE RED RIVER,
THENCE RUN NORTHWESTERLY ALONG THE FORMER HIGH BANK OF THE RED RIVER A
DISTANCE OF 614.30 FEET, NORTH 55'22'23" WEST TO A FOUND 1" DIAMETER IRON
PIPE,
THENCE RUN NORTH 24'48'49" EAST A DISTANCE OF 897.25 FEET TO A FOUND
1/2" DIAMETER IRON ROD BEING ON THE SOUTH LINE OF LOT 34, COOK SUBDIVISION,
AS RECORDED IN BOOK 141, PAGE 11 OF THE CONVEYANCE RECORDS OF BOSSIER
PARISH,
THENCE RUN SOUTH 65'02'25" EAST ALONG THE SOUTH LINE OF LOT 34, A
DISTANCE OF 9.58 FEET TO A FOUND 1/2" DIAMETER IRON ROD BEING ON THE
WESTERLY RIGHT-OF-WAY LINE OF KAYWOOD COURTS,
THENCE RUN SOUTH 24'47'37" WEST ALONG THE WESTERLY RIGHT-OF-WAY LINE OF
KAYWOOD COURTS A DISTANCE OF 329.85 FEET TO A FOUND 1/2" DIAMETER IRON PIPE,
THENCE RUN SOUTH 22'34'14" WEST ALONG THE WESTERLY RIGHT-OF-WAY LINE OF
KAYWOOD COURTS A DISTANCE OF 194.43 FEET TO A FOUND 5/8" DIAMETER IRON ROD
BEING AT THE INTERSECTION OF THE WESTERLY RIGHT-OF-WAY LINE OF KAYWOOD
COURTS WITH THE SOUTHERLY RIGHT-OF-WAY LINE OF WOODLAWN STREET,
THENCE RUN SOUTH 70'42'00" EAST ALONG THE SOUTHERLY RIGHT-OF-WAY LINE OF
WOODLAWN STREET A DISTANCE OF 5.17 FEET TO A FOUND 5/8" DIAMETER IRON ROD,
THENCE RUN SOUTH 19'1 8'00" WEST ALONG THE WEST LINE OF LOT 1, KAYWOOD
SUBDIVISION, UNIT 2, AS RECORDED IN BOOK 450, PAGE 113 OF THE CONVEYANCE
RECORDS OF BOSSIER PARISH, A DISTANCE OF 200.26 FEET TO A SET 1/2" DIAMETER
IRON ROD BEING THE SOUTHWEST CORNER OF LOT 1,
THENCE RUN SOUTH 70'42'00" EAST ALONG THE SOUTH LINE OF KAYWOOD
SUBDIVISION UNIT 2 AND KAYWOOD SUBDIVISION A DISTANCE OF 585.48 FEET TO THE
POINT-OF-BEGINNING,
AND ALL THAT LAND LYING BETWEEN THE SOUTHERLY MOST LINE OF SAID
DESCRIBED TRACT AND THE EXISTING HIGH BANK OF THE RED RIVER, AND LYING
BETWEEN THE PROJECTED LINES OF THE EASTERLY AND WESTERLY BOUNDARIES OF SAID
DESCRIBED TRACT,
SAID TOTAL TRACT CONTAINING 4.914 ACRES.
3. TRACT "C"
A TRACT OF LAND LOCATED IN SECTION 32, T18N-R13W, BOSSIER CITY, BOSSIER
PARISH, AND/OR SECTIONS 31, 32 OR 33, Tl8N-Rl3W, CADDO PARISH, LOUISIANA,
AND BEING A PORTION OF LOT 34, COOK SUBDIVISION, AS RECORDED IN BOOK 141,
PAGE 11, OF THE CONVEYANCE RECORDS OF BOSSIER PARISH. SAID TRACT MORE FULLY
DESCRIBED AS FOLLOWS:
BEGINNING AT A FOUND 1/2" DIAMETER IRON ROD BEING THE SOUTHWEST CORNER
OF LOT 34, RUN THENCE NORTH 29'35'39" EAST ALONG THE WEST LINE OF LOT 34 A
DISTANCE OF 165.24 FEET TO A FOUND 1/2" DIAMETER IRON PIPE BEING ON THE
SOUTH RIGHT-OF-WAY LINE OF INTERSTATE 20,
THENCE RUN SOUTH 82'32'09" EAST ALONG THE SOUTH RIGHT-OF-WAY LINE OF
INTERSTATE 20 A DISTANCE OF 58.03 FEET TO A FOUND 1/2" DIAMETER IRON PIPE
BEING ON THE WESTERLY RIGHT-OF-WAY LINE OF KAYWOOD COURTS,
THENCE RUN SOUTH 29'33'17" WEST ALONG THE WESTERLY RIGHT-OF-WAY LINE OF
KAYWOOD COURTS A DISTANCE OF 190.07 FEET TO A FOUND 1/2" DIAMETER IRON ROD
BEING ON THE SOUTH LINE OF LOT 34,
THENCE RUN NORTH 65'02'25" WEST ALONG THE SOUTH LINE OF LOT 34 A
DISTANCE OF 9.58 FEET TO A FOUND 1/2" DIAMETER IRON ROD,
THENCE RUN NORTH 55'34'42" WEST ALONG THE SOUTH LINE OF LOT 34 A
DISTANCE OF 44.49 FEET TO THE POINT OF BEGINNING, SAID TRACT CONTAINING 0.22
ACRES.
4. TRACT "D"
A TRACT OF LAND LOCATED IN SECTION 32, T18N-R13W, BOSSIER CITY, BOSSIER
PARISH, AND/OR SECTIONS 31, 32 OR 33, Tl8N-Rl3W, CADDO PARISH, LOUISIANA.
SAID TRACT BEING MORE FULLY DESCRIBED AS FOLLOWS:
BEGINNING AT A FOUND 1/2" DIAMETER CRIMP TOP IRON PIPE BEING THE
SOUTHWEST CORNER OF LOT 114, RIVERSIDE SUBDIVISION AS RECORDED IN BOOK 60,
PAGE 157 OF THE CONVEYANCE RECORDS OF BOSSIER PARISH, LOUISIANA, RUN THENCE
SOUTH 70-23-37" EAST ALONG THE REAR LINE OF RIVERSIDE SUBDIVISION A DISTANCE
OF 248.66 FEET TO A FOUND 1" DIAMETER IRON PIPE,
THENCE RUN SOUTH 29'01'37" WEST AND PARALLEL WITH THE EASTERLY LINE OF
LOT 110 OF RIVERSIDE SUBDIVISION A DISTANCE OF 1021.25 FEET TO A FOUND 1"
DIAMETER IRON PIPE, BEING ON THE FORMER HIGH BANK OF THE RED RIVER,
THENCE RUN NORTH 62'19'02" WEST ALONG THE FORMER HIGH BANK OF THE RED
RIVER A DISTANCE OF 127.28 FEET TO A POINT, WHICH IS ON THE PROJECTION OF
THE WESTERLY LINE OF LOT 112, RIVERSIDE SUBDIVISION,
THENCE CONTINUE NORTH 64'07'56" WEST ALONG THE FORMER HIGH BANK OF THE
RED RIVER A DISTANCE OF 101.11 FEET TO A SET 1/2" DIAMETER IRON ROD, LOCATED
ON THE PROJECTION OF THE EASTERLY LINE OF LOT 8, KAYWOOD SUBDIVISION,
THENCE RUN NORTH 28'05'04" EAST A DISTANCE OF 335.76 FEET TO A FOUND
3/4" DIAMETER CRIMP TOP IRON PIPE BEING THE SOUTHEAST CORNER OF LOT 8
KAYWOOD SUBDIVISION AS RECORDED IN BOOK 339, PAGE 229 OF THE CONVEYANCE
RECORDS OF BOSSIER PARISH,
THENCE CONTINUE NORTH 28'05'04" EAST ALONG THE EASTERLY LINE OF LOT 8 A
DISTANCE OF 202.64 FEET TO A FOUND 2" DIAMETER IRON PIPE BEING THE NORTHEAST
CORNER OF LOT 8,
THENCE CONTINUE NORTH 28'05'04" EAST A DISTANCE OF 50.65 FEET TO A FOUND
1/2" DIAMETER IRON ROD,
THENCE RUN NORTH 26'06'32" EAST A DISTANCE OF 251.31 FEET TO A FOUND
5/8" DIAMETER IRON ROD,
THENCE RUN NORTH 31'05'36" EAST A DISTANCE OF 149.25 FEET TO THE POINT
OF BEGINNING,
AND ALL THAT LAND LYING BETWEEN THE SOUTHERLY MOST LINE OF SAID DESCRIBED
TRACT AND THE EXISTING HIGH BANK OF THE RED RIVER, AND LYING BETWEEN THE
PROJECTED LINES OF THE EASTERLY AND WESTERLY BOUNDARIES OF SAID DESCRIBED
TRACT,
SAID TOTAL TRACT CONTAINING 5.753 ACRES.
5. LOTS 1, 2 AND 4, KAYWOOD SUBDIVISION, UNIT NO. 2, A SUBDIVISION OF
BOSSIER PARISH, AND/OR CADDO PARISH, LOUISIANA AS PER PLAT RECORDED IN BOOK
450, PAGE 113 OF THE CONVEYANCE RECORDS OF BOSSIER PARISH, LOUISIANA.
6. LOTS 6, 7 AND 8 KAYWOOD SUBDIVISION, A SUBDIVISION OF BOSSIER PARISH,
AND/OR CADDO PARISH, LOUISIANA, AS PER PLAT RECORDED IN BOOK 339, PAGE 229
OF THE CONVEYANCE RECORDS OF BOSSIER PARISH, LOUISIANA.
7. LOTS 110, 111 AND 112, RIVERSIDE SUBDIVISION, A SUBDIVISION OF BOSSIER
PARISH, AND/OR CADDO PARISH, LOUISIANA, AS PER PLAT RECORDED IN BOOK 60,
PAGE 157 OF THE CONVEYANCE RECORDS OF BOSSIER PARISH, LOUISIANA, LESS A
STRIP OF LAND SEVEN (7') FEET IN WIDTH RUNNING BACK BETWEEN PARALLEL LINES
ALONG THE ENTIRE EASTERLY SIDE OF LOT 110.