Exhibit 4.13
================================================================================
MORTGAGE, ASSIGNMENT OF LEASES AND RENTS,
SECURITY AGREEMENT AND FIXTURE FILING
BY
WINNER'S CHOICE CASINO, INC.,
Mortgagor,
TO
WELLS FARGO BANK MINNESOTA, NATIONAL ASSOCIATION,
as Trustee,
Mortgagee
Securing Principal Indebtedness of $125,000,000
Dated as of February 22, 2002
Relating to Premises in:
Calcasieu Parish, Louisiana
================================================================================
After recording, please return to:
Athy A. Mobilia, Esq.
Cahill Gordon & Reindel
80 Pine Street
New York, NY 10005
--------------------
TABLE OF CONTENTS
Page
----
PREAMBLE ...................................................................................... 1
RECITALS ...................................................................................... 1
AGREEMENT ..................................................................................... 2
ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.1 Definitions ................................................................... 2
SECTION 1.2 Interpretation ................................................................ 8
SECTION 1.3 Resolution of Drafting Ambiguities ............................................ 8
ARTICLE II
GRANTS AND SECURED OBLIGATIONS
SECTION 2.1 Grant of Mortgaged Property ................................................... 8
SECTION 2.2 Assignment of Leases and Rents ................................................ 9
SECTION 2.3 Secured Obligations ........................................................... 10
SECTION 2.4 Future Advances ............................................................... 10
SECTION 2.5 No Release .................................................................... 10
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF MORTGAGOR
SECTION 3.1 Authority and Validity ........................................................ 10
SECTION 3.2 Warranty of Title ............................................................. 11
SECTION 3.3 Condition of Mortgaged Property ............................................... 11
SECTION 3.4 Leases ........................................................................ 13
SECTION 3.5 Insurance ..................................................................... 13
SECTION 3.6 Charges ....................................................................... 14
SECTION 3.7 Environmental ................................................................. 14
SECTION 3.8 No Conflicts, Consents, etc ................................................... 14
SECTION 3.9 Benefit to the Mortgagor ...................................................... 15
-i-
Page
----
ARTICLE IV
CERTAIN COVENANTS OF MORTGAGOR
SECTION 4.1 Preservation of Corporate Existence ........................................... 15
SECTION 4.2 Title ......................................................................... 15
SECTION 4.3 Maintenance and Use of Mortgaged Property; Alterations ........................ 16
SECTION 4.4 Notices Regarding Certain Defaults ............................................ 17
SECTION 4.5 Access to Mortgaged Property, Books and Records; Other Information ............ 17
SECTION 4.6 Limitation on Liens; Transfer Restrictions .................................... 17
SECTION 4.7 Environmental ................................................................. 17
SECTION 4.8 Estoppel Certificates ......................................................... 19
ARTICLE V
LEASES
SECTION 5.1 Mortgagor's Affirmative Covenants with Respect to Leases ...................... 19
SECTION 5.2 Mortgagor's Negative Covenants with Respect to Leases ......................... 19
SECTION 5.3 Additional Requirements with Respect to New Leases ............................ 20
ARTICLE VI
CONCERNING ASSIGNMENT OF LEASES AND RENTS
SECTION 6.1 Present Assignment; License to the Mortgagor .................................. 20
SECTION 6.2 Collection of Rents by the Mortgagee .......................................... 20
SECTION 6.3 No Release .................................................................... 21
SECTION 6.4 Irrevocable Interest .......................................................... 21
SECTION 6.5 Amendment to Leases ........................................................... 21
ARTICLE VII
TAXES AND CERTAIN STATUTORY LIENS
SECTION 7.1 Payment of Charges ............................................................ 21
SECTION 7.2 Escrow of Taxes ............................................................... 22
SECTION 7.3 Certain Statutory Liens ....................................................... 22
SECTION 7.4 Stamp and Other Taxes ......................................................... 22
SECTION 7.5 Certain Tax Law Changes ....................................................... 22
SECTION 7.6 Proceeds of Tax Claim ......................................................... 22
ARTICLE VIII
INSURANCE
SECTION 8.1 Required Insurance Policies and Coverages ..................................... 23
-ii-
Page
----
SECTION 8.2 Delivery After Foreclosure .................................................... 23
ARTICLE IX
CONTESTING OF PAYMENTS
SECTION 9.1 Contesting of Taxes and Certain Statutory Liens ............................... 23
SECTION 9.2 Contesting of Insurance ....................................................... 23
ARTICLE X
DESTRUCTION, CONDEMNATION AND RESTORATION
SECTION 10.1 Destruction ................................................................... 24
SECTION 10.2 Condemnation .................................................................. 24
ARTICLE XI
EVENTS OF DEFAULT AND REMEDIES
SECTION 11.1 Events of Default ............................................................. 24
SECTION 11.2 Remedies in Case of an Event of Default ....................................... 24
SECTION 11.3 Sale of Mortgaged Property if Event of Default Occurs; Proceeds of Sale ....... 25
SECTION 11.4 Additional Remedies in Case of an Event of Default ............................ 26
SECTION 11.5 Legal Proceedings After an Event of Default ................................... 27
SECTION 11.6 Remedies Not Exclusive ........................................................ 27
ARTICLE XII
SECURITY AGREEMENT AND FIXTURE FILING
SECTION 12.1 Security Agreement ............................................................ 30
SECTION 12.2 Fixture Filing ................................................................ 31
ARTICLE XIII
FURTHER ASSURANCES
SECTION 13.1 Recording Documentation To Assure Security .................................... 31
SECTION 13.2 Further Acts .................................................................. 31
SECTION 13.3 Additional Security ........................................................... 32
-iii-
Page
----
ARTICLE XIV
MISCELLANEOUS
SECTION 14.1 Covenants To Run with the Land ................................................ 32
SECTION 14.2 No Merger ..................................................................... 32
SECTION 14.3 Concerning Mortgagee .......................................................... 32
SECTION 14.4 Mortgagee May Perform; Mortgagee Appointed Attorney-in-Fact ................... 33
SECTION 14.5 Expenses ...................................................................... 33
SECTION 14.6 Indemnity ..................................................................... 34
SECTION 14.7 Continuing Security Interest; Assignment ...................................... 34
SECTION 14.8 Termination; Release .......................................................... 34
SECTION 14.9 Modification in Writing ....................................................... 35
SECTION 14.10 Notices ....................................................................... 35
SECTION 14.11 GOVERNING LAW; SERVICE OF PROCESS; WAIVER OF JURY TRIAL ....................... 35
SECTION 14.12 Severability of Provisions .................................................... 35
SECTION 14.13 Limitation on Interest Payable ................................................ 35
SECTION 14.14 Business Days ................................................................. 36
SECTION 14.15 Relationship .................................................................. 36
SECTION 14.16 Waiver of Stay ................................................................ 36
SECTION 14.17 No Credit for Payment of Taxes or Impositions ................................. 37
SECTION 14.18 No Claims Against the Mortgagee ............................................... 37
SECTION 14.19 Obligations Absolute .......................................................... 37
SECTION 14.20 Last Dollars Secured .......................................................... 37
SIGNATURE AND ACKNOWLEDGMENT
SCHEDULE A Legal Description
SCHEDULE B Prior Liens
SCHEDULE C Leases Affecting the Mortgaged Property
EXHIBIT 1 Form of Subordination, Non-Disturbance and Attornment Agreement
-iv-
MORTGAGE, ASSIGNMENT OF LEASES AND RENTS, SECURITY
AGREEMENT AND FIXTURE FILING
MORTGAGE, ASSIGNMENT OF LEASES AND RENTS, SECURITY AGREEMENT AND FIXTURE FILING
(as amended, amended and restated, supplemented, or otherwise modified from time
to time, the "Mortgage"), dated as of February 22, 2002, made by WINNER'S CHOICE
--------
CASINO, INC., a Louisiana corporation having an office at 2650 Highway 108,
Sulphur, Louisiana 70663, as mortgagor, assignor and debtor (in such capacities
and together with any successors in such capacities, the "Mortgagor"), in favor
---------
of WELLS FARGO BANK MINNESOTA, NATIONAL ASSOCIATION, a national banking
association having an office at 213 Court Street, Suite 902, Middletown, CT
06457, in its capacity as collateral agent and trustee pursuant to the Indenture
(as hereinafter defined), as mortgagee, assignee and secured party (in such
capacities and together with any successors in such capacities, the
"Mortgagee").
---------
R E C I T A L S:
- - - - - - - -
A. Gameco, Inc. (the "Issuer"), certain of its Subsidiaries (as
------
hereinafter defined), the Mortgagor and the Mortgagee have, in connection with
the execution and delivery of this Mortgage, entered into that certain
indenture, dated as of February 8, 2002 (as amended, amended and restated,
supplemented, or otherwise modified from time to time, the "Indenture"),
---------
pursuant to which the Issuer has issued its 117/8% senior secured notes due 2009
(the "Senior Secured Notes") in the aggregate principal amount of $125,000,000.
--------------------
It is contemplated that the Issuer may, after the date hereof, issue Additional
Notes (as defined in the Indenture) and Exchange Notes (as defined in the
Indenture); the Exchange Notes, together with the Additional Notes and the
Senior Secured Notes, the "Notes"), in each case, pursuant to the provisions of
-----
the Indenture.
B. The Issuer owns, directly or through its Subsidiaries, all of the
issued and outstanding shares of the Mortgagor.
C. The Mortgagor has, pursuant the Indenture, among other things,
unconditionally guaranteed (the "Guarantee") the obligations of the Issuer under
---------
the Indenture and the Notes.
D. The Mortgagor will receive substantial benefits from the execution
and delivery of, and the performance of the obligations under, the Indenture and
the Notes, and is therefore willing to enter into this Mortgage.
E. The Mortgagor is or will be the legal owner of the Mortgaged
Property (as hereinafter defined).
F. This Mortgage is given by the Mortgagor in favor of the Mortgagee
for its benefit and for the benefit of the Holders of the Notes (collectively,
the "Secured Parties") to secure the payment and performance of all of the
---------------
Secured Obligations (as hereinafter defined).
A G R E E M E N T:
- - - - - - - - -
NOW THEREFORE, in consideration of the foregoing premises and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Mortgagor hereby covenants and agrees with the Mortgagee as
follows:
ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.1 Definitions. Capitalized terms used but not otherwise
-----------
defined herein shall have the meanings assigned to such terms in the Indenture.
The following terms used in this Mortgage shall have the following meanings:
"ACM" shall have the meaning assigned to such term in Section 4.7(ii)
--- ---------------
hereof.
"Affiliate" shall have the meaning assigned to such term in the
---------
Indenture.
"Alteration" shall mean any and all alterations, installations,
----------
improvements, additions, modifications or changes of a structural nature of or
to the Premises.
"Business Day" shall have the meaning assigned to such term in the
------------
Indenture.
"Charges" shall mean any and all real estate, property and other
-------
taxes, assessments and special assessments, levies, fees, all water and sewer
rents and charges and all other governmental charges or Liens imposed upon or
assessed against, and all claims (including, without limitation, landlords',
carriers', mechanics', workmen's, repairmen's, laborers', materialmen's,
suppliers' and warehousemen's Liens and other claims arising by operation of
law) against, all or any portion of the Mortgaged Property.
"Collateral Account" shall have the meaning assigned to such term in
------------------
the Indenture.
"Collateral Documents" shall have the meaning assigned to such term in
--------------------
the Indenture.
"Contested Liens" shall mean, collectively, any Liens incurred in
---------------
respect of any Charges to the extent that the amounts owing in respect thereof
are not yet delinquent or are being contested and otherwise comply with the
provisions of Section 9.1 hereof.
-----------
"Contracts" shall mean, collectively, any and all right, title and
---------
interest of the Mortgagor in and to any and all contracts, instruments,
documents and other general intangibles, whether now existing or hereafter
arising or entered into, relating to the Mortgaged Property (including, without
limitation, all reciprocal easements and/or operating agreements, covenants,
conditions and restrictions and similar agreements affecting all or any portion
of the Mortgaged Property and any and all present or future options to sell or
lease the Mortgaged Property or any interest therein) and all reserves, deferred
payments, deposits or other security or advance payments (including, without
limitation, those made by or on behalf of the Mortgagor to others with respect
to (i) utility service regarding the Mortgaged Property, (ii) cleaning,
maintenance, repair or similar services regarding the Mortgaged Property, (iii)
refuse removal or sewage
service regarding the Mortgaged Property, (iv) rentals of equipment, if any,
used in the operation by or on behalf of Mortgagor regarding the Mortgaged
Property, and/or (v) parking or similar services or rights regarding the
Mortgaged Property), refunds, liens, security interests, guarantees, remedies
and claims of every kind, nature or character relating thereto.
"Default Rate" shall mean the rate per annum equal to the highest rate
------------
then payable under the Indenture.
"Destruction" shall mean any and all damage to, or loss or destruction
-----------
of, the Premises or any part thereof.
"Environmental Law" shall mean any applicable federal, state, local or
-----------------
municipal statute, law, rule, regulation, ordinance, code, policy or rule of
common law and any judicial or administrative interpretation thereof, including
any judicial or administrative order, consent decree or judgment binding on the
Mortgagor, relating to pollution or protection of the environment, or health or
safety including, without limitation, any relating to the release or threatened
release of any Hazardous Materials.
"Event of Default" shall have the meaning assigned to such term in the
----------------
Indenture.
"Fixture" shall mean all machinery, apparatus, equipment, fittings,
-------
fixtures, improvements and articles of personal property of every kind,
description and nature whatsoever now or hereafter attached or affixed to the
Land or any other Improvement or used in connection with the use and enjoyment
of the Land or any other Improvement or the maintenance or preservation thereof,
which by the nature of their location thereon or attachment thereto are fixtures
under the UCC or any other applicable law including, without limitation, all
utility systems, fire sprinkler and security systems, drainage facilities,
lighting facilities, all water, sanitary and storm sewer, drainage, electricity,
steam, gas, telephone and other utility equipment and facilities, pipes,
fittings and other items of every kind and description now or hereafter attached
to or located on the Land which by the nature of their location thereon or
attachment thereto are real property under applicable law, HVAC equipment,
boilers, electronic data processing, telecommunications or computer equipment,
refrigeration, electronic monitoring, water or lighting systems, power,
sanitation, waste removal, elevators, maintenance or other systems or equipment
and all additions thereto and betterments, renewals, substitutions and
replacements thereof.
"GAAP" shall have the meaning assigned to such term in the Indenture.
----
"Governmental Authority" shall mean any federal, state, local, foreign
----------------------
or other governmental, quasi-governmental or administrative (including
self-regulatory) body, instrumentality, department, agency, authority, board,
bureau, commission, office of any nature whatsoever or other subdivision
thereof, or any court, tribunal, administrative hearing body, arbitration panel
or other similar dispute-resolving body, whether now or hereafter in existence,
or any officer or official thereof, having jurisdiction over the Mortgagor or
the Mortgaged Property or any portion thereof.
"Guarantee" shall have the meaning assigned to such term in Recital C
--------- ---------
hereof.
"Guarantors" shall have the meaning assigned to such term in the
----------
Indenture.
"Hazardous Materials" shall mean any substance, chemical, material,
-------------------
pollutant, waste, contaminant or constituent, which is subject to regulation
under or could give rise to liability under any Environmental Law.
"Holder" shall have the meaning assigned to such term in the
------
Indenture.
"Improvements" shall mean all buildings, structures and other
------------
improvements of every kind or description and any and all Alterations now or
hereafter located, attached or erected on the Land including, without limitation
(i) all Fixtures, (ii) all attachments, railroad tracks, foundations, sidewalks,
drives, roads, curbs, streets, ways, alleys, passages, passageways, sewer
rights, parking areas, driveways, fences and walls and (iii) all materials now
or hereafter located on the Land intended for the construction, reconstruction,
repair, replacement, alteration, addition or improvement of or to such
buildings, Fixtures, structures and improvements, all of which materials shall
be deemed to be part of the Improvements immediately upon delivery thereof on
the Land and to be part of the improvements immediately upon their incorporation
therein.
"Indemnified Liabilities" shall have the meaning assigned to such term
-----------------------
in Section 14.6(i) hereof.
---------------
"Indemnitees" shall have the meaning assigned to such term in Section
----------- -------
14.6(i) hereof.
- -------
"Indenture" shall have the meaning assigned to such term in Recital A
--------- ---------
hereof.
"Insurance Policies" means the insurance policies and coverages
------------------
required to be maintained by the Mortgagor with respect to the Mortgaged
Property pursuant to Section 4.19(b) of the Indenture and all renewals and
extensions thereof.
"Insurance Requirements" means, collectively, all provisions of the
----------------------
Insurance Policies, all requirements of the issuer of any of the Insurance
Policies and all orders, rules, regulations and any other requirements of the
National Board of Fire Underwriters (or any other body exercising similar
functions) binding upon the Mortgagor and applicable to the Mortgaged Property
or any use or condition thereof.
"Issuer" shall have the meaning assigned to such term in Recital A
------ ---------
hereof.
"Land" shall mean those certain tracts or parcels of land described in
----
Schedule A annexed to this Mortgage, together with all of the Mortgagor's
- ----------
reversionary rights therein and all of the Mortgagor's rights in and to any and
all easements, rights-of-way, strips and gores of land, waters, water courses,
water rights, mineral, gas and oil rights and all power, air, light and other
rights, estates, titles, interests, privileges, liberties, servitudes, licenses,
tenements, hereditaments and appurtenances whatsoever, in any way belonging,
relating or appertaining thereto, or any part thereof, or which hereafter shall
in any way belong, relate or be appurtenant thereto.
"Landlord" shall mean any landlord, lessor, franchisor, licensor or
--------
grantor, as applicable.
"Leases" shall mean, collectively, any and all right, title and
------
interests of the Mortgagor, as Landlord, in all leases and subleases of space,
tenancies, franchise agreements, licenses, occupancy, rental, access or
concession agreements and any other agreements pursuant to which any Person is
granted a pos-
sessory interest in or right to use or occupy all or any portion of the
Mortgaged Property (including, without limitation, all of the Mortgagor's rights
to enforce all such leases, subleases, tenancies or other agreements and to
receive and enforce any rights that the Mortgagor may have to collect Rents
thereunder), in each case whether now existing or hereafter entered into,
whether or not of record, relating in any manner to the Premises or the use or
occupancy thereof and any and all amendments, modifications, supplements,
replacements, extensions, renewals and/or guarantees, if any thereof, whether
now in effect or hereafter coming into effect.
"Lien" shall have the meaning assigned to such term in the Indenture.
----
"Mortgage" shall have the meaning assigned to such term in the
--------
Preamble hereof.
"Mortgaged Property" shall have the meaning assigned to such term in
------------------
Section 2.1 hereof.
- -----------
"Mortgagee" shall have the meaning assigned to such term in the
---------
Preamble hereof.
"Mortgagor" shall have the meaning assigned to such term in the
---------
Preamble hereof.
"Mortgagor's Interest" shall have the meaning assigned to such term in
--------------------
Section 2.2 hereof.
- -----------
"Net Loss Proceeds" shall have the meaning assigned to such term in
-----------------
the Indenture.
"Net Proceeds" shall have the meaning assigned to such term in the
------------
Indenture.
"Notes" shall have the meaning assigned to such term in Recital A
-----
hereof.
"Officers' Certificate" shall have the meaning assigned to such term
---------------------
in the Indenture.
"Permit" shall mean any and all permits, certificates, approvals,
------
authorizations, consents, licenses, variances, franchises or other instruments,
however characterized, of any Governmental Authority (or any Person acting on
behalf of a Governmental Authority) now or hereafter acquired or held, together
with all amendments, modifications, extensions, renewals and replacements of any
thereof issued or in any way furnished in connection with the Mortgaged Property
including, without limitation, building permits, certificates of occupancy,
environmental certificates, industrial permits or licenses and certificates of
operation.
"Permitted Collateral Liens" shall have the meaning assigned to such
--------------------------
term in Section 4.6 hereof.
-----------
"Permitted Liens" shall have the meaning assigned to such term in the
---------------
Indenture.
"Person" shall have the meaning assigned to such term in the
------
Indenture.
"Premises" shall mean, collectively, the Land and the Improvements.
--------
"Prior Liens" shall mean, collectively, the Liens identified in
-----------
Schedule B annexed to this Mortgage.
- ----------
"Proceeds" shall mean, collectively, any and all cash proceeds and
--------
noncash proceeds derived or to be derived from the Mortgaged Property and shall
include, without limitation, all (i) proceeds of the sale, transfer or
conveyance of the Mortgaged Property or the conversion, voluntary or
involuntary, of any of the Mortgaged Property or any portion thereof into cash
or liquidated claims, (ii) proceeds of any insurance (except payments made to a
Person, other than the Issuer or any Subsidiary thereof, that is not a party to
this Mortgage), indemnity, warranty, guaranty or claim payable to the Mortgagee
or to the Mortgagor from time to time with respect to any of the Mortgaged
Property including, without limitation, all Net Loss Proceeds relating thereto,
(iii) payments (in any form whatsoever) made or due and payable to the Mortgagor
from time to time in connection with any requisition, confiscation,
condemnation, seizure or forfeiture of all or any portion of the Mortgaged
Property by any Governmental Authority (or any Person acting on behalf of a
Governmental Authority) including, without limitation, all Net Loss Awards
relating thereto, (iv) products of the Mortgaged Property, (v) other amounts
from time to time paid or payable under or in connection with any of the
Mortgaged Property including, without limitation, refunds of real estate taxes
and assessments, including interest thereon and any unearned insurance premiums
relating thereto and (vi) the right to enforce any and all rights that the
Mortgagor has or may have to collect all such proceeds, including, without
limitation, the Mortgagor's rights to commence any and all appropriate
collection or enforcement actions incident thereto.
"Property Material Adverse Effect" shall mean, as of any date of
--------------------------------
determination and whether individually or in the aggregate (a) any event,
circumstance, occurrence or condition which has caused or resulted in (or would
reasonably be expected to cause or result in) a material adverse effect on the
business or operations as presently conducted at the Mortgaged Property; (b) any
event, circumstance, occurrence or condition which has caused or resulted in (or
would reasonably be expected to cause or result in) a material adverse effect on
the value or utility of the Mortgaged Property; and (c) any event, circumstance,
occurrence or condition which has caused or resulted in (or would reasonably be
expected to cause or result in) a material adverse effect on the legality,
priority or enforceability of the Lien created by this Mortgage or the rights
and remedies of the Mortgagee hereunder.
"Prudent Operator" shall mean the standard of care taken by a prudent
----------------
operator of property similar in use and configuration to the Premises and
located in the locality where the Premises are located.
"Records" shall mean, collectively, any and all right, title and
-------
interest of the Mortgagor in and to any and all drawings, plans, specifications,
file materials, operating and maintenance records, catalogues, tenant lists,
correspondence, advertising materials, operating manuals, warranties,
guarantees, appraisals, studies and data relating to the Mortgaged Property or
the construction of any Alteration or the maintenance of any Permit.
"Rents" shall mean, collectively, any and all rents, additional rents,
-----
royalties, issues, cash, guaranties, letters of credit, bonds, sureties or
security deposited under any Lease to secure performance of the Tenant's
obligations thereunder, revenues, earnings, profits, bonuses and income, advance
rental payments, payments incident to assignment, sublease or surrender of a
Lease, claims for forfeited deposits and claims for damages, now due or
hereafter to become due, with respect to any Lease, any indemnification against,
or reimbursement for, sums paid and costs and expenses incurred by the Mortgagor
under any Lease or otherwise, and any award in the event of the bankruptcy of
any Tenant under or guarantor of a Lease.
"Requirements of Law" shall mean, collectively, any and all
-------------------
requirements of any Governmental Authority including, without limitation, any
and all orders, decrees, determinations, laws, treaties, ordinances, rules,
regulations or similar statutes or case law.
"Secured Obligations" shall mean all obligations (whether or not
-------------------
constituting future advances, obligatory or otherwise) of the Issuer and any and
all of the Guarantors from time to time arising under or in respect of this
Mortgage, the Indenture, the Notes and the other Collateral Documents
(including, without limitation, the obligations to pay principal, interest and
all other charges, fees, expenses, commissions, reimbursements, premiums,
indemnities and other payments related to or in respect of the obligations
contained in this Mortgage, the Indenture, the Notes and the other Collateral
Documents), in each case whether (i) such obligations are direct or indirect,
secured or unsecured, joint or several, absolute or contingent, due or to become
due whether at stated maturity, by acceleration or otherwise, (ii) arising in
the regular course of business or otherwise, (iii) for payment or performance
and/or (iv) now existing or hereafter arising (including, without limitation,
interest and other obligations arising or accruing after the commencement of any
bankruptcy, insolvency, reorganization or similar proceeding with respect to the
Issuer, any Guarantor or any other Person, or which would have arisen or accrued
but for the commencement of such proceeding, even if such obligation or the
claim therefor is not enforceable or allowable in such proceeding).
"Secured Parties" shall have the meaning assigned to such term in
---------------
Recital F hereof.
- ---------
"Senior Secured Notes" shall have the meaning assigned to such term in
--------------------
Recital A hereof.
- ---------
"Subordination Agreement" shall mean a subordination, nondisturbance
-----------------------
and attornment agreement substantially in the form of Exhibit 1 annexed to this
---------
Mortgage.
"Subsidiaries" shall have the meaning assigned to such term in the
------------
Indenture.
"Taking" shall mean any taking of the Mortgaged Property or any part
------
thereof, in or by condemnation or other eminent domain proceedings pursuant to
any law, general or special, or by reason of the temporary requisition of the
use or occupancy of the Mortgaged Property or any part thereof, by any
Governmental Authority, civil or military.
"Tax Escrow Fund" shall have the meaning assigned to such term in
---------------
Section 7.2 hereof.
- -----------
"Tenant" shall mean any tenant, lessee, sublessee, franchisee,
------
licensee, grantee or obligee, as applicable.
"UCC" shall mean the Uniform Commercial Code as in effect on the date
---
hereof in the jurisdiction in which the Premises are located; provided, however,
-------- -------
that if by reason of mandatory provisions of law, the perfection or the effect
of perfection or non-perfection of the security interest in any item or portion
of the Mortgaged Property is governed by the Uniform Commercial Code as in
effect in a jurisdiction other than the jurisdiction in which the Premises are
located, "UCC" shall mean the Uniform Commercial Code as in effect in such other
jurisdiction for purposes of the provisions hereof relating to such perfection
or effect of perfection or non-perfection.
SECTION 1.2 Interpretation. In this Mortgage, unless otherwise
--------------
specified, (i) singular words include the plural and plural words include the
singular, (ii) words importing any gender include the other gender, (iii)
references to any Person include such Person's successors and assigns and in the
case of an individual, the word "successors" includes such Person's heirs,
devisees, legatees, executors, administrators and personal representatives, (iv)
references to any statute or other law include all applicable rules, regulations
and orders adopted or made thereunder and all statutes or other laws amending,
consolidating or replacing the statute or law referred to, (v) the words
"consent," "approve" and "agree," and derivations thereof or words of similar
import, mean the prior written consent, approval or agreement of the Person in
question not to be unreasonably withheld, (vi) the words "include" and
"including," and words of similar import, shall be deemed to be followed by the
words "without limitation," (vii) the words "hereto," "herein," "hereof" and
"hereunder," and words of similar import, refer to this Mortgage in its
entirety, (viii) references to Articles, Sections, Schedules, Exhibits,
subsections, paragraphs and clauses are to the Articles, Sections, Schedules,
Exhibits, subsections, paragraphs and clauses hereof, (ix) the Schedules and
Exhibits to this Mortgage, in each case as amended, amended and restated,
supplemented or otherwise modified from time to time in accordance with the
provisions hereof, are incorporated herein by reference, (x) the titles and
headings of Articles, Sections, Schedules, Exhibits, subsections, paragraphs and
clauses are inserted as a matter of convenience only and shall not affect the
constructions of any provisions hereof and (xi) all obligations of the Mortgagor
hereunder shall be satisfied by the Mortgagor at the Mortgagor's sole cost and
expense.
SECTION 1.3 Resolution of Drafting Ambiguities. The Mortgagor
----------------------------------
acknowledges and agrees that it was represented by counsel in connection with
the execution and delivery hereof, that it and its counsel reviewed and
participated in the preparation and negotiation hereof and that any rule of
construction to the effect that ambiguities are to be resolved against the
drafting party (i.e., Mortgagee) shall not be employed in the interpretation
hereof.
ARTICLE II
GRANTS AND SECURED OBLIGATIONS
SECTION 2.1 Grant of Mortgaged Property. The Mortgagor hereby
---------------------------
grants, mortgages, bargains, sells, assigns and conveys to the Mortgagee (for
its benefit and for the benefit of the other Secured Parties), and hereby grants
to the Mortgagee (for its benefit and for the benefit of the other Secured
Parties), a security interest in and upon all of the Mortgagor's estate, right,
title and interest in, to and under the following property, whether now owned or
held or hereafter acquired from time to time (collectively, the "Mortgaged
---------
Property"):
- --------
(i) Land;
(ii) Improvements;
(iii) Leases;
(iv) Rents;
(v) Permits;
(vi) Contracts;
(vii) Records; and
(viii) Proceeds.
Notwithstanding the foregoing provisions of this Section 2.1,
-----------
Mortgaged Property shall not include a grant of any of the Mortgagor's right,
title or interest in (i) any Contract to which the Mortgagor is a party or any
of its rights or interests thereunder (other than (x) the right to receive any
payment of money (including without limitation accounts, general intangibles and
payment intangibles (each as defined in the UCC) or any other rights referred to
in Sections 9-406(f), 9-407(a) or 9-408(a) of the UCC and (y) any proceeds,
substitutions or replacements thereof) to the extent, but only to the extent,
that such a grant would, under the terms of such Contract, result in a breach or
termination of the terms of, or constitute a default under or termination of
such Contract and (ii) any Permit to the extent, but only to the extent that,
such grant shall constitute or result in abandonment, invalidation or rendering
unenforceable any right, title or interest of the Mortgagor therein; provided,
--------
however, that at such time as any Contract or Permit described in clauses (i)
- -------
and (ii) of this sentence is no longer subject to such restriction, such
applicable Contract or Permit shall (without any act or delivery by any Person)
constitute Mortgaged Property hereunder.
TO HAVE AND TO HOLD the Mortgaged Property, together with all estate, right,
title and interest of the Mortgagor and anyone claiming by, through or under the
Mortgagor in and to the Mortgaged Property and all rights and appurtenances
relating thereto, unto the Mortgagee, its successors and assigns, for the
purpose of securing the payment and performance in full of all the Secured
Obligations.
SECTION 2.2 Collateral Assignment and Pledge of Mortgagor's
-----------------------------------------------
Interest as Additional Security. As additional collateral security for the
- -------------------------------
prompt and punctual payment and satisfaction of the Secured Obligations, and all
additional advances that the Mortgagee may make on the Mortgagor's behalf
pursuant to this Mortgage, together with interest thereon as provided herein,
the Mortgagor hereby assigns, pledges and grants to the Mortgagee (for its
benefit and for the benefit of the other Secured Parties), a continuing security
interest in and to all of the Mortgagor's estate, right, title, interest, claim
and demand, as Landlord, under any and all of the Leases including, without
limitation, the following (such assigned rights, the "Mortgagor's Interest"):
--------------------
(i) the immediate and continuing right to receive and collect
Rents payable by the Tenants pursuant to the Leases;
(ii) all claims, rights, powers, privileges and remedies of
the Mortgagor, whether provided for in the Leases or arising by statute
or at law or in equity or otherwise, consequent on any failure on the
part of the Tenants to perform or comply with any term of the Leases
including damages or other amounts payable to the Mortgagor as a result
of such failure;
(iii) all rights to take all actions upon the happening of a
default under the Leases as shall be permitted by the Leases or by law
including, without limitation, the commencement, conduct and
consummation of proceeding at law or in equity; and
(iv) the full power and authority, in the name of the Mortgagor
or otherwise, to enforce, collect, receive and receipt for any and all
of the foregoing and to take all other actions whatsoever which the
Mortgagor, as Landlord, is or may be entitled to take under the Leases.
SECTION 2.3 Secured Obligations. This Mortgage secures, and the
-------------------
Mortgaged Property is collateral security for, the payment and performance in
full when due of the Secured Obligations.
SECTION 2.4 Mortgage Securing Future Indebtedness. This
-------------------------------------
Mortgage has been executed by Mortgagor pursuant to Article 3298 of the
Louisiana Civil Code for the purpose of securing the Mortgagor's indebtedness
(including, without limitation, the Secured Obligations) that may now be
existing or that may arise in the future as provided herein and in the
Indenture, with the preferences and priorities provided under applicable
Louisiana law. This Mortgage shall be further entitled to the preferences and
priorities as provided under the Louisiana Private Works Act (La. R.S. 9:4801,
et seq.). However, nothing under this Mortgage shall be construed as limiting
the duration of this Mortgage or the purpose or purposes for which the
Mortgagor's indebtedness (including, without limitation, the Secured
Obligations) may be requested or extended. The Mortgagor's additional
indebtedness will automatically be secured by this Mortgage without the
necessity that the Mortgagor agrees or consents to such a result at the time
additional indebtedness is made and that the note or notes evidencing such
additional indebtedness reference the fact that such notes are secured by this
Mortgage. The Mortgagor understands that the Mortgagor may not subsequently have
a change of mind and insist that the Mortgagor's additional indebtedness not be
secured by this Mortgage unless the Mortgagee specifically agrees to such a
request in writing.
SECTION 2.5 No Release. Nothing set forth in this Mortgage
----------
shall relieve the Mortgagor from the performance of any term, covenant,
condition or agreement on the Mortgagor's part to be performed or observed under
or in respect of any of the Mortgaged Property or from any liability to any
Person under or in respect of any of the Mortgaged Property or shall impose any
obligation on the Mortgagee or any other Secured Party to perform or observe any
such term, covenant, condition or agreement on the Mortgagor's part to be so
performed or observed or shall impose any liability on the Mortgagee or any
other Secured Party for any act or omission on the part of the Mortgagor
relating thereto or for any breach of any representation or warranty on the part
of the Mortgagor contained in this Mortgage, the Indenture, the Notes or the
Collateral Documents, or under or in respect of the Mortgaged Property or made
in connection herewith or therewith. The obligations of the Mortgagor contained
in this Section 2.5 shall survive the termination hereof and the discharge of
-----------
the Mortgagor's other obligations under this Mortgage and the Indenture, the
Notes and the Collateral Documents.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF MORTGAGOR
SECTION 3.1 Authority and Validity.
----------------------
The Mortgagor represents and warrants that as of the date
hereof:
(i) it is duly organized or formed, validly existing and, if
applicable, in good standing under the laws of the jurisdiction of its
organization;
(ii) it is duly qualified to transact business and is in good
standing in the state in which the Mortgaged Property is located;
(iii) it has full corporate or other organizational power and
lawful authority to execute and deliver this Mortgage and to mortgage
and grant a Lien on and security interest in the Mortgaged Property and
otherwise assign the Mortgagor's Interest and otherwise perform its
obligations as contemplated herein, and all corporate and governmental
actions, consents, authorizations and approvals necessary or required
therefor have been duly and effectively taken or obtained; and
(iv) this Mortgage is a legal, valid and binding obligation of
the Mortgagor, enforceable against the Mortgagor in accordance with its
terms, except as enforceability may be limited by applicable
bankruptcy, insolvency or similar laws affecting the enforcement of
creditors' rights generally or by equitable principles relating to
enforceability.
SECTION 3.2 Warranty of Title. The Mortgagor represents and
-----------------
warrants that:
(i) it has good fee simple title to the Premises and the
Landlord's interest and estate under or in respect of the Leases and
good title to the interest it purports to own or hold in and to each of
the Permits, the Contracts and the Records, in each case subject to no
Liens, except for Permitted Collateral Liens;
(ii) it has good title to the interest it purports to own or
hold in and to all rights and appurtenances to or that constitute a
portion of the Mortgaged Property, except for Permitted Collateral
Liens;
(iii) it is in compliance with each term, condition and
provision of any obligation of the Mortgagor which is secured by the
Mortgaged Property or the noncompliance with which would result in a
Property Material Adverse Effect; and
(iv) this Mortgage creates and constitutes a valid and
enforceable first priority Lien on the Mortgaged Property subject to
Permitted Collateral Liens, and, to the extent any of the Mortgaged
Property shall consist of Fixtures, a first priority security interest
in the Fixtures, which first priority Lien and first priority security
interest are subject only to Permitted Collateral Liens.
SECTION 3.3 Condition of Mortgaged Property. The Mortgagor
-------------------------------
represents and warrants that:
(i) there has been issued and there remains in full force and
effect subject to no revocation, suspension, forfeiture or
modification, each and every Permit necessary for the present use,
operation and occupancy of the Premises by the Mortgagor and its
Tenants and the conduct of their respective businesses and all required
zoning, building code, land use, environmental and other similar
Permits, except where the failure to be so issued and to be in full
force and effect would not result in a Property Material Adverse
Effect;
(ii) the Premises and the present and contemplated use and
occupancy thereof comply with all applicable zoning ordinances,
building codes, land use laws, set back or other development
and/or use requirements of Governmental Authorities except where such
noncompliance would not result in a Property Material Adverse Effect;
(iii) the Premises are served by all utilities (including,
without limitation, water and sewer systems) necessary for the present
use thereof, and all utility services are provided by public or private
utilities and the Premises have accepted or are equipped to accept such
utility services and the Mortgagor has not received notice of
termination of such utility service, except where the failure to be so
served would not result in a Property Material Adverse Effect;
(iv) the Mortgagor has access to the Premises from roads
sufficient to allow the Mortgagor and its Tenants and invitees to
conduct their respective businesses at the Premises in accordance with
sound commercial practices and the Mortgagor has not received notice of
termination of such access, except where the failure to have such
access would not result in a Property Material Adverse Effect;
(v) the Mortgagor has not received notice of any Taking or
the commencement or pendency of any action or proceeding therefor,
other than such Takings as would not result in a Property Material
Adverse Effect;
(vi) there has not occurred any Destruction of the Premises
or any portion thereof as a result of any fire or other casualty that,
as of the date hereof, has not been repaired in all material respects,
other than such Destruction as would not have a Property Material
Adverse Effect;
(vii) there are no disputes regarding boundary lines,
location, encroachments or possession of any portions of the Mortgaged
Property and no state of facts exists which could give rise to any such
claim other than such disputes as would not result in a Property
Material Adverse Effect;
(viii) all liquid and solid waste disposal, septic and sewer
systems located on the Premises are in a good and safe condition and
repair and in compliance with all Requirements of Law, except where the
failure to so comply would not result in a Property Material Adverse
Effect;
(ix) no portion of the Premises is located in an area
identified by the Federal Emergency Management Agency or any successor
thereto as an area having special flood hazards pursuant to the Flood
Insurance Acts or, if any portion of the Premises is located within
such area, the Mortgagor has obtained the insurance prescribed in
Article VIII hereof;
(x) the Premises are assessed for real estate tax purposes
as one or more wholly independent tax lot or lots, separate from any
adjoining land or improvements not constituting a portion of such lot
or lots, and no other land or improvements are assessed and taxed
together with the Premises or any portion thereof, other than such
cases where the failure to be so assessed would not result in a
Property Material Adverse Effect; and
(xi) there are no options or rights of first refusal to
purchase or acquire all or any portion of the Mortgaged Property, other
than such options or rights of first refusal as would not result in a
Property Material Adverse Effect.
SECTION 3.4 Leases. The Mortgagor represents and warrants that
------
as of the date hereof:
(i) the Leases identified in Schedule C attached hereto are
the only Leases in existence on the date hereof relating to the
Premises;
(ii) true copies of such Leases have been previously
delivered to the Mortgagee and there are no agreements with any Tenant
under such Leases other than those agreements expressly set forth
therein;
(iii) the Mortgagor is the sole owner of all of the
Mortgagor's Interest in such Leases;
(iv) each of such Leases is in full force and effect,
constitutes a legal, valid and binding obligation of the Mortgagor and
the applicable Tenant thereunder, and is enforceable against the
Mortgagor and such Tenant in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency or
similar laws affecting the enforcement of creditors' rights generally
or by equitable principles relating to enforceability;
(v) there is no default under any of such Leases and there
is existing no condition which with the giving of notice or passage of
time or both would cause a default thereunder;
(vi) all Rents due under such Leases have been paid in full;
(vii) none of the Rents reserved under such Leases have been
assigned or otherwise pledged or hypothecated except in favor of the
Mortgagee pursuant to the provisions hereof;
(viii) none of the Rents (other than any security deposit
collected in accordance with the provisions of the applicable Lease)
have been collected for more than one (1) month in advance;
(ix) there exists no offsets or defenses to the payment of
any portion of the Rents and the Mortgagor owes no monetary obligation
to any Tenant under any such Lease;
(x) the Mortgagor has received no notice from any Tenant
challenging the validity or enforceability of any such Lease;
(xi) no such Lease contains any option to purchase, right of
first refusal to purchase, right of first refusal to relet, or any
other similar provision; and
(xii) each such Lease is subordinate to this Mortgage either
pursuant to its terms or pursuant to a recordable Subordination
Agreement.
SECTION 3.5 Insurance. The Mortgagor represents and warrants
---------
that, except where the failure of clauses (i), (ii) or (iii) hereof to be true
would not have a Property Material Adverse Effect, (i) the Premises and the use,
occupancy and operation thereof comply with all Insurance Requirements and there
exists no default under any Insurance Requirement, (ii) all premiums due and
payable with respect to the Insurance Policies have been paid, (iii) all
Insurance Policies are in full force and effect and the Mortgagor has not
received notice of violation or cancellation thereof and (iv) all insurance
certificates required pursuant to the Indenture have been delivered to the
Mortgagee.
SECTION 3.6 Charges. The Mortgagor represents and warrants that
-------
all Charges imposed upon or assessed against the Mortgaged Property have been
paid and discharged except to the extent such Charges constitute a Lien not yet
due and payable or to the extent such Charges are being contested in accordance
with Section 9.1 hereof.
-----------
SECTION 3.7 Environmental. The Mortgagor represents and
-------------
warrants that:
(i) it has obtained all Permits which are necessary with
respect to the ownership and operation of its business and the
Mortgaged Property under any and all applicable Environmental Laws and
is in compliance with all terms and conditions thereof, except where
the failure so to obtain or to be in compliance would not result in a
Property Material Adverse Effect;
(ii) it is in compliance with any and all applicable
Environmental Laws including, without limitation, all other
limitations, restrictions, conditions, standards, prohibitions,
requirements, obligations, schedules and timetables contained in the
Environmental Laws, except where the failure so to be in compliance
would not result in a Property Material Adverse Effect;
(iii) there is no civil, criminal or administrative action,
suit, demand, claim, hearing, notice of violation, investigation,
proceeding, notice of demand letter pending or threatened against it or
any Affiliate under the Environmental Laws which would result in a
fine, penalty or other cost or expense other than such instances that
would not result in a Property Material Adverse Effect; and
(iv) there are no past or present events, conditions,
circumstances, activities, practices, incidents, actions or plans which
may interfere with or prevent compliance with the Environmental Laws,
or which may give rise to any common law or legal liability including,
without limitation, liability under the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended, or any
other Environmental Law or related common law theory or otherwise form
the basis of any claim, action, demand, suit, proceeding, hearing or
notice of violation, study or investigation, based on or related to the
manufacture, processing, distribution, use, generation, treatment,
storage, disposal, transport or handling, or the emission, discharge,
release or threatened release into the environment, of any Hazardous
Materials which would result in a fine, penalty or other cost or
expense other than such instances that would not result in a Property
Material Adverse Effect .
SECTION 3.8 No Conflicts, Consents, etc. Neither the execution
---------------------------
and delivery hereof by the Mortgagor nor the consummation of the transactions
herein contemplated nor the fulfillment of the terms hereof (i) violates the
terms of any agreement, indenture, mortgage, deed of trust, equipment lease,
instrument or other document to which the Mortgagor is a party, or by which it
may be bound or to which any of its properties or assets may be subject, (ii)
conflicts with any Requirement of Law applicable to the Mortgagor or its
property or (iii) results in or requires the creation or imposition of any Lien
(other than the Lien contemplated hereby) upon or with respect to any of the
Mortgaged Property, except where such violation, conflict, creation or
imposition would not have a Property Material Adverse Effect. No consent of any
party (including, without limitation, equityholders or creditors of the
Mortgagor) and no consent, authorization, approval, license or other action by,
and no notice to or filing with, any Governmental Authority or regulatory body
or other Person (other than with respect to any required Permits) is required
for (i) the granting of a mortgage Lien on and security interest in the
Mortgaged Property by the Mortgagor
granted by it pursuant to this Mortgage or for the execution, delivery or
performance hereof by the Mortgagor except for the filing of this Mortgage and
the other filings contemplated hereby or (ii) the exercise by the Mortgagee of
the remedies in respect of the Mortgaged Property pursuant to this Mortgage
other than those required by law in connection with the exercise of the
applicable remedy.
SECTION 3.9 Benefit to the Mortgagor. The Mortgagor represents
------------------------
and warrants that it will receive substantial benefit as a result of the
execution, delivery, and performance of the Indenture, the Notes and the
Collateral Documents.
ARTICLE IV
CERTAIN COVENANTS OF MORTGAGOR
SECTION 4.1 Preservation of Corporate Existence. The Mortgagor
-----------------------------------
shall:
(i) preserve and maintain in full force and effect its
existence and good standing under the laws of the jurisdiction of its
organization;
(ii) preserve and maintain in full force and effect its
qualification to transact business and good standing in the state in
which the Mortgaged Property is located; and
(iii) preserve and maintain in full force and effect all
consents, authorizations and approvals necessary or required of any
Governmental Authority or any other Person relating to the execution,
delivery and performance hereof, except where the failure to do so
would not result in a Property Material Adverse Effect.
SECTION 4.2 Title. The Mortgagor shall:
-----
(i) (A) keep in effect all material rights and appurtenances
to or that constitute a part of the Mortgaged Property and (B) protect,
preserve and defend its interest in the Mortgaged Property and title
thereto, except against Permitted Collateral Liens (other than the Lien
created by this Mortgage);
(ii) (A) comply, in all material respects, with each of the
terms, conditions and provisions of any obligation of the Mortgagor
which is secured by the Mortgaged Property, except where the failure to
so comply would not result in a Property Material Adverse Effect, or
the non-compliance with which may result in the imposition of a Lien on
the Mortgaged Property, (B) forever warrant and defend to the Mortgagee
the Lien and security interests created and evidenced hereby and the
validity and priority hereof in any action or proceeding against the
claims of any and all Persons whomsoever affecting or purporting to
affect the Mortgaged Property or any of the rights of the Mortgagee
hereunder, except against Permitted Collateral Liens (other than the
Lien of this Mortgage), and (C) maintain a valid and enforceable first
priority Lien, except for Permitted Collateral Liens (other than the
Lien of this Mortgage) on the Mortgaged Property and, to the extent any
of the Mortgaged Property shall consist of Fixtures, a first priority
security interest in the Mortgaged Property, which first priority Lien
and security interest shall be subject only to Permitted Collateral
Liens; and
(iii) immediately upon obtaining knowledge of the pendency of
any proceedings for the eviction of the Mortgagor from the Mortgaged
Property or any part thereof by paramount title or otherwise
questioning the Mortgagor's right, title and interest in, to and under
the Mortgaged Property as warranted in this Mortgage, or of any
condition that could give rise to any such proceedings, notify the
Mortgagee thereof. The Mortgagee may participate in such proceedings
and the Mortgagor will deliver or cause to be delivered to the
Mortgagee all instruments requested by the Mortgagee to permit such
participation. In any such proceedings, the Mortgagee may be
represented by counsel reasonably satisfactory to the Mortgagee at the
reasonable expense of the Mortgagor. If, upon the resolution of such
proceedings, the Mortgagor shall suffer a loss of the Mortgaged
Property or any part thereof or interest therein and title insurance
proceeds shall be payable in connection therewith, such proceeds are
hereby assigned to and shall be paid to the Mortgagee for deposit into
the Collateral Account and shall be applied in the manner applicable to
Net Loss Proceeds in accordance with the provisions of Sections 4.16,
11.02, and 10.05(c) of the Indenture.
SECTION 4.3 Maintenance and Use of Mortgaged Property;
------------------------------------------
Alterations.
- -----------
(i) Maintenance. The Mortgagor shall cause the
-----------
representations and warranties set forth in Section 3.3 hereof to continue to be
-----------
true in each and every respect and shall pay or cause to be paid when due all
Charges, costs and expenses relating thereto, other than such Charges being
contested in accordance with Section 9.1 hereof.
-----------
(ii) Maintenance of Premises. The Mortgagor shall not commit
-----------------------
or suffer any waste on the Premises. The Mortgagor shall, at all times, maintain
the Premises in good working order, condition and repair, reasonable wear and
tear excepted, and shall use commercially reasonable efforts to make or cause to
be made all repairs, structural or nonstructural, which are necessary or
appropriate in the conduct of the Mortgagor's business. The Mortgagor shall not,
except as permitted in Section 4.3(iii) hereof, alter the occupancy or use of
----------------
all or any portion of the Premises without the prior written consent of the
Mortgagee, which consent shall not be unreasonably withheld. Except to the
extent permitted pursuant to the provisions of Section 4.3(iii) hereof, the
----------------
Mortgagor shall not remove, demolish or alter the structural character of any
Improvement now or hereafter erected upon all or any portion of the Premises, or
permit any such removal, demolition or alteration, without the prior written
consent of the Mortgagee, which consent shall not be unreasonably withheld.
(iii) Alterations. The Mortgagor shall not, without the prior
-----------
written consent of the Mortgagee, which consent shall not be unreasonably
withheld, make any Alteration to the Premises except as permitted by Sections
10.04 and 10.06 of the Indenture. Whether or not the making of any Alteration
shall require the consent of the Mortgagee pursuant to the immediately preceding
sentence, the Mortgagor shall (A) complete each Alteration promptly, in a good
and workmanlike manner and in compliance, in all material respects, with all
applicable local laws, ordinances and requirements and (B) pay when due all
claims for labor performed and materials furnished in connection with such
Alteration, unless contested in accordance with the provisions of Article IX
----------
hereof.
(iv) Permits. The Mortgagor shall maintain, or cause to be
-------
maintained, in full force and effect all Permits contemplated by and subject to
Section 3.3(i) hereof. Unless and to the extent contested by the Mortgagor in
- --------------
accordance with the provisions of Article IX hereof, the Mortgagor shall comply,
----------
in all material respects, with all requirements set forth in the Permits and all
Requirements of Law applicable to all or any portion of the Mortgaged Property
or the condition, use or occupancy of all or any portion thereof
or any recorded deed of restriction, declaration, covenant running with the land
or otherwise, now or hereafter in force, subject to the provisions of Section
-------
3.3 hereof.
- ---
(v) Zoning. The Mortgagor shall not initiate, join in, or
------
consent to any change in the zoning or any other permitted use classification of
the Premises without the prior written consent of the Mortgagee, which consent
shall not be unreasonably withheld.
SECTION 4.4 Notices Regarding Certain Defaults. The Mortgagor
----------------------------------
shall, promptly upon receipt of any written notice regarding (i) any default by
the Mortgagor relating to the Mortgaged Property or any portion thereof or (ii)
the failure to discharge any of Mortgagor's obligations with respect to the
Mortgaged Property or any portion thereof described herein, furnish a copy of
such notice to the Mortgagee.
SECTION 4.5 Access to Mortgaged Property, Books and Records;
------------------------------------------------
Other Information. Upon request to the Mortgagor, the Mortgagee, its agents,
- -----------------
accountants and attorneys shall have full and free access to visit and inspect,
as applicable, during normal business hours and such other reasonable time as
may be requested by the Mortgagee to all of the Mortgaged Property including,
without limitation, all of the books, correspondence and records of the
Mortgagor relating thereto. The Mortgagee and its representatives may examine
the same, take extracts therefrom and make photocopies thereof. The Mortgagor
shall, at any and all times, within a reasonable time after written request by
the Mortgagee, furnish or cause to be furnished to the Mortgagee, in such manner
and in such detail as may be reasonably requested by the Mortgagee, additional
information with respect to the Mortgaged Property.
SECTION 4.6 Limitation on Liens; Transfer Restrictions. The
------------------------------------------
Mortgagor may not, without the prior written consent of the Mortgagee, further
mortgage, encumber, hypothecate, sell, convey or assign all or any part of the
Mortgaged Property or suffer or allow any of the foregoing to occur by operation
of law or otherwise; provided, however, that the Mortgagor shall have the right
-------- -------
to (1) sell, convey or assign all or any portion of the Mortgaged Property in
accordance with the provisions of the Indenture and (2) suffer to exist the
following Liens in respect of the Mortgaged Property: (i) Prior Liens (but not
extensions, amendments, supplements or replacements of Prior Liens unless (A)
extended, amended, supplemented or replaced in a manner permitted by the
Indenture or (B) consented to by the Mortgagee which consent shall not be
unreasonably withheld), (ii) the Lien and security interest created by this
Mortgage or any other Collateral Document, (iii) Contested Liens, (iv) Liens
described in clause (9) of the definition of Permitted Liens (provided, however,
-------- -------
that such Liens shall not extend to or cover any Mortgaged Property other than
equipment subject to Capital Leases, Obligations or Purchase Money Obligations
incurred in accordance with the provisions of the Indenture) or clause (4) of
the definition of Permitted Liens, and (v) Leases to the extent permitted
pursuant to the provisions of Article V hereof (the Liens described in clauses
---------
(i) through (v) of this sentence, collectively, "Permitted Collateral Liens").
--------------------------
SECTION 4.7 Environmental.
-------------
(i) Hazardous Materials. The Mortgagor shall (A) comply with
-------------------
any and all present and future Environmental Laws applicable to the Mortgaged
Property, (B) not release, store, treat, handle, generate, discharge or dispose
of any Hazardous Materials at, on, under or from the Mortgaged Property in
violation of or in a manner that could result in any material liability under
any present and future Environmental Law and (C) take all necessary steps to
initiate and expeditiously complete all remedial, corrective and other action to
eliminate any such effect. In the event the Mortgagor fails to comply with the
covenants
in the preceding sentence, the Mortgagee may, in addition to any other remedies
set forth herein, as agent for the Mortgagor and at the Mortgagor's sole cost
and expense, cause any remediation, removal or response action relating to
Hazardous Materials required by applicable Environmental Laws to be taken and
the Mortgagor shall provide to the Mortgagee and its agents and employees access
to the Mortgaged Property for such purpose. Any reasonable costs or expenses
incurred by the Mortgagee for such purpose shall be immediately due and payable
by the Mortgagor and shall bear interest at the Default Rate. The Mortgagee
shall have the right at any time when an Event of Default shall have occurred
and be continuing and at such other times when a potential violation of any
present or future Environmental Law exists which in the Mortgagee's reasonable
judgment could result in any material liability or obligation under such
Environmental Law, at the sole cost and expense of the Mortgagor, to conduct an
environmental audit of the Mortgaged Property by such persons or firms appointed
by the Mortgagee, and the Mortgagor shall cooperate in all respects in the
conduct of such environmental audit, including, without limitation, by providing
access to the Mortgaged Property and to all records relating thereto. To the
extent that any such environmental audit identifies conditions which in the
Mortgagee's reasonable judgment would result in any material liability or
obligation under any present or future Environmental Law, the Mortgagor agrees
to expeditiously correct any such violation or respond to conditions giving rise
to such liability or obligations in a manner which complies in all material
respects with the Environmental Laws and mitigates associated health and
environmental risks. The Mortgagor shall indemnify and hold the Mortgagee and
each of the other Secured Parties harmless from and against all loss, cost,
damage or reasonable expense (including, without limitation, reasonable
attorneys' and consultants' fees and disbursements) that the Mortgagee or any
other Secured Party may sustain by reason of the assertion against the Mortgagee
or any Secured Party by any party of any claim relating to such Hazardous
Materials on, under or from the Mortgaged Property or actions taken with respect
thereto as authorized hereunder, except to the extent arising from the gross
negligence or willful misconduct of the Mortgagee or any other Secured Party.
The foregoing indemnification shall survive repayment of all Secured Obligations
and any release or assignment hereof; and
(ii) Asbestos. The Mortgagor shall not install nor permit to be
--------
installed in or removed from the Mortgaged Property, asbestos or any
asbestos-containing material (collectively, "ACM") except in compliance, in all
---
material respects, with all applicable Environmental Laws, and with respect to
any ACM currently present in the Mortgaged Property, the Mortgagor shall
promptly either (A) remove any ACM which such Environmental Laws require to be
removed or (B) otherwise comply, in all material respects, with such
Environmental Laws with respect to such ACM, all at the Mortgagor's sole cost
and expense. If the Mortgagor shall fail so to remove any ACM or otherwise
comply, in all material respects, with such laws or regulations, the Mortgagee
may, in addition to any other remedies set forth herein, take reasonable or
necessary steps to eliminate any ACM from the Mortgaged Property or otherwise
comply, in all material respects, with applicable law, regulations or orders and
the Mortgagor shall provide to the Mortgagee and its agents and employees access
to the Mortgaged Property for such purpose. Any reasonable costs or expenses
incurred by the Mortgagee for such purpose shall be immediately due and payable
by the Mortgagor and bear interest at the Default Rate. The Mortgagor shall
indemnify and hold the Mortgagee and the other Secured Parties harmless from and
against all loss, cost, damage and expense (including, without limitation,
reasonable attorneys' and consultants' fees and disbursements) that the
Mortgagee or the other Secured Parties may sustain, as a result of the presence
of any ACM and any removal thereof or compliance with all applicable
Environmental Laws, except to the extent arising from the gross negligence or
willful misconduct of the Mortgagee or any other Secured Party. The foregoing
indemnification shall survive repayment of all Secured Obligations and any
release or assignment hereof.
SECTION 4.8 Estoppel Certificates. The Mortgagor shall, from
---------------------
time to time, upon thirty (30) days' prior written reasonable request of the
Mortgagee, execute, acknowledge and deliver to the Mortgagee an Officers'
Certificate stating that this Mortgage, the Indenture, the Notes and the
Collateral Documents are unmodified and in full force and effect (or, if there
have been modifications, that this Mortgage, the Indenture, the Notes and the
Collateral Documents, as applicable, is or are in full force and effect as
modified and setting forth such modifications) and stating the date to which
principal and interest have been paid on the Notes.
ARTICLE V
LEASES
SECTION 5.1 Mortgagor's Affirmative Covenants with Respect to
-------------------------------------------------
Leases. With respect to each Lease, the Mortgagor shall:
- ------
(i) observe and perform, in all material respects, all the
obligations imposed upon the Landlord under such Lease;
(ii) promptly send copies to the Mortgagee of all notices of
default which the Mortgagor shall send or receive thereunder; and
(iii) enforce all of the terms, covenants and conditions
contained in such Lease upon the part of the Tenant thereunder to be
observed or performed to the extent it would be commercially reasonable to
do so.
SECTION 5.2 Mortgagor's Negative Covenants with Respect to
----------------------------------------------
Leases. With respect to each Lease, the Mortgagor shall not, without the prior
- ------
written consent of the Mortgagee, which consent shall not be unreasonably
withheld:
(i) receive or collect, or permit the receipt or collection
of, any Rent under such Lease more than one (1) month in advance of the
respective period in respect of which such Rent is to accrue, except:
(A) in connection with the execution and delivery of such
Lease (or of any amendment to such Lease), Rent
thereunder may be collected and received in advance
in an amount not in excess of one (1) month's Rent;
(B) the amount held by Landlord as a reasonable security
deposit thereunder; and
(C) any amount received and collected for escalation and
other charges in accordance with the terms of such
Lease;
(ii) assign, transfer or hypothecate (other than to the
Mortgagee hereunder) any Rent under such Lease whether then due or to
accrue in the future or the interest of the Mortgagor as Landlord under
such Lease;
(iii) enter into any amendment or modification of such Lease
which would materially decrease the unexpired term thereof or decrease the
amount of the Rents payable thereunder or materially impair the value or
utility of the Mortgaged Property or the security provided by this
Mortgage;
(iv) terminate (whether by exercising any contractual right of
the Mortgagor to recapture leased space or otherwise) or permit the
termination of such Lease or accept surrender of all or any portion of the
space demised under such Lease prior to the end of the term thereof or
accept assignment of such Lease to the Mortgagor unless:
(A) the Tenant under such Lease has not paid the
equivalent of two (2) months' Rent and the Mortgagor
has made reasonable efforts to collect such Rent; and
(B) it would be commercially reasonable to terminate such
Lease; or
(v) waive, excuse, condone or in any manner discharge or
release any Tenants of or from the material obligations of such Tenants
under their respective Leases or guarantors of Tenants from any material
obligations under any guarantees of the Leases except as the same would be
done by a Prudent Operator with due regard for the security afforded the
Mortgagee thereby.
SECTION 5.3 Additional Requirements with Respect to New Leases.
--------------------------------------------------
In addition to the requirements of Sections 5.1 and 5.2 hereof, the Mortgagor
------------ ---
shall not enter into any Lease after the date hereof unless the Tenant under
such Lease has entered into a Subordination Agreement and has otherwise complied
with the provisions of Section 10.06 of the Indenture.
-------------
ARTICLE VI
CONCERNING ASSIGNMENT OF LEASES AND RENTS
SECTION 6.1 Present Assignment; License to the Mortgagor.
--------------------------------------------
Section 2.2 of this Mortgage constitutes a present, absolute, effective,
irrevocable and complete assignment by the Mortgagor to the Mortgagee of the
Leases and Rents and the right, subject to applicable law, to collect all sums
payable to the Mortgagor thereunder and apply the same as the Mortgagee may, in
its sole discretion, determine to be appropriate (including the payment of
reasonable costs and expenses in connection with the maintenance, operation,
improvement, insurance, taxes and upkeep of the Mortgaged Property), which is
not conditioned upon the Mortgagee being in possession of the Premises. The
Mortgagee hereby grants to the Mortgagor, however, a license to collect and
apply the Rents and to enforce the obligations of Tenants under the Leases.
Immediately upon the occurrence of and during the continuance of any Event of
Default or a Default, the license granted in the immediately preceding sentence
shall cease and terminate, with or without any notice, action or proceeding or
the intervention of a receiver appointed by a court.
SECTION 6.2 Collection of Rents by the Mortgagee.
------------------------------------
(i) From and after the occurrence and during the continuance
of an Event of Default or a Default, any Rents receivable by the Mortgagee
hereunder, after payment of all proper costs and expenses as Mortgagee may, in
its sole discretion, determine to be appropriate (including the payment of
reasonable
costs and expenses in connection with the maintenance, operation, improvement,
insurance, taxes and upkeep of the Mortgaged Property), shall be applied to the
Secured Obligations or, at the option of the Mortgagee, shall be held by the
Mortgagee as additional collateral to secure the performance by the Mortgagor of
the Secured Obligations. The Mortgagee shall be accountable to the Mortgagor
only for Rents actually received by the Mortgagee. The collection of such Rents
and the application thereof shall not cure or waive any Event of Default or a
Default or waive, modify or affect notice of Event of Default or a Default or
invalidate any act done pursuant to such notice.
(ii) The Mortgagor hereby irrevocably authorizes and directs
Tenant under each Lease to rely upon and comply with any and all notices or
demands from the Mortgagee for payment of Rents to the Mortgagee and the
Mortgagor shall have no claim against Tenant for Rents paid by Tenant to the
Mortgagee pursuant to such notice or demand.
SECTION 6.3 No Release. Neither this Mortgage nor any action or
----------
inaction on the part of the Mortgagee shall release any Tenant under any Lease,
any guarantor of any Lease or the Mortgagor from any of their respective
obligations under such Leases or constitute an assumption of any such obligation
on the part of the Mortgagee. No action or failure to act on the part of the
Mortgagor shall adversely affect or limit the rights of the Mortgagee under this
Mortgage or, through this Mortgage, under such Leases. Nothing contained herein
shall operate or be construed to (i) obligate the Mortgagee to perform any of
the terms, covenants or conditions contained in any Lease or otherwise to impose
any obligation upon the Mortgagee with respect to such Lease (including, without
limitation, any obligation arising out of any covenant of quiet enjoyment
contained in such Lease in the event that Tenant under such Lease shall have
been joined as a party defendant in any action by which the estate of such
Tenant shall be terminated) or (ii) place upon the Mortgagee any obligation for
the operation, control, care, management or repair of the Premises.
SECTION 6.4 Irrevocable Interest. All rights, powers and
--------------------
privileges of the Mortgagee herein set forth are coupled with an interest and
are irrevocable, subject to the terms and conditions hereof, and the Mortgagor
shall not take any action under the Leases or otherwise which is inconsistent
with this Mortgage or any of the terms hereof and any such action inconsistent
herewith or therewith shall be void.
SECTION 6.5 Amendment to Leases. Each Lease, including, without
-------------------
limitation, all amendments, modifications, supplements, replacements, extensions
and renewals thereof, shall continue to be subject to the provisions hereof
without the necessity of any further act by any of the parties hereto.
ARTICLE VII
TAXES AND CERTAIN STATUTORY LIENS
SECTION 7.1 Payment of Charges. Unless and to the extent
------------------
contested by the Mortgagor in accordance with the provisions of Article IX
----------
hereof, the Mortgagor shall pay and discharge, or cause to be paid and
discharged, from time to time when the same shall become due (or within any
applicable grace period) , all Charges subject to this Article VII. The
-----------
Mortgagor shall, upon the Mortgagee's request, deliver to the Mortgagee receipts
evidencing the payment of all such Charges.
SECTION 7.2 Escrow of Taxes. From and after the occurrence and
---------------
during the continuance of an Event of Default or a Default, at the option and
upon the request of the Mortgagee, the Mortgagor shall deposit with the
Mortgagee in an account maintained by the Mortgagee (the "Tax Escrow Fund"), on
---------------
the first day of each month, an amount estimated by the Mortgagee to be equal to
one-twelfth of the annual real property taxes and other annual Charges required
to be discharged by the Mortgagor under Section 7.1 hereof. Such amounts shall
-----------
be held by the Mortgagee without interest to the Mortgagor and applied to the
payment of the obligations in respect of which such amounts were deposited, in
such priority as the Mortgagee shall determine, on or before the respective
dates on which such obligations or any part thereof would become delinquent.
Nothing contained in this Article VII shall (i) affect any right or remedy of
-----------
the Mortgagee under any provision hereof or of any statute or rule of law to pay
any such amount as provided above from its own funds and to add the amount so
paid, together with interest at the Default Rate during such time that any
amount remains outstanding, to the Secured Obligations or (ii) relieve the
Mortgagor of its obligations to make or provide for the payment of the annual
real property taxes and other annual Charges required to be discharged by the
Mortgagor under Section 7.1 hereof.
-----------
SECTION 7.3 Certain Statutory Liens. Unless and to the extent
-----------------------
contested by the Mortgagor in accordance with the provisions of Article IX
----------
hereof, the Mortgagor shall timely pay, or cause to be paid, all lawful claims
and demands of mechanics, materialmen, laborers, government agencies
administering worker's compensation insurance, old age pensions and social
security benefits and all other claims, judgments, demands or amounts of any
nature which, if unpaid, would result in, or permit the creation of, a Lien on
the Mortgaged Property or any part thereof, or which would result in forfeiture
of all or any part of the Mortgaged Property.
SECTION 7.4 Stamp and Other Taxes. Unless and to the extent
---------------------
contested by the Mortgagor in accordance with the provisions of Article IX
----------
hereof, the Mortgagor shall pay any United States documentary stamp taxes, with
interest and fines and penalties, and any mortgage recording taxes, with
interest and fines and penalties, that may hereafter be levied, imposed or
assessed under or upon or by reason hereof or the Secured Obligations or any
instrument or transaction affecting or relating to either thereof and in default
thereof the Mortgagee may advance the same and the amount so advanced shall be
payable by the Mortgagor to the Mortgagee in accordance with the provisions of
Section 14.5 hereof.
- ------------
SECTION 7.5 Certain Tax Law Changes. In the event of the
-----------------------
passage after the date hereof of any law deducting from the value of real
property, for the purpose of taxation, amounts in respect of any Lien thereon or
changing in any way the laws for the taxation of mortgages or debts secured by
mortgages for state or local purposes or the manner of the collection of any
Charges, and imposing any Charges, either directly or indirectly, on this
Mortgage, the Indenture or any other Collateral Document, the Mortgagor shall
promptly pay to the Mortgagee such amount or amounts as may be necessary from
time to time to pay any such Charges.
SECTION 7.6 Proceeds of Tax Claim. In the event that the
---------------------
proceeds of any tax claim are paid after the Mortgagee has exercised its right
to foreclose the Lien hereof, such proceeds shall be paid to the Mortgagee to
satisfy any deficiency remaining after such foreclosure. The Mortgagee shall
retain its interest in the proceeds of any tax claim during any redemption
period. The amount of any such proceeds in excess of any deficiency claim of the
Mortgagee shall in a prompt manner be released to the Mortgagor.
ARTICLE VIII
INSURANCE
SECTION 8.1 Required Insurance Policies and Coverages. The
-----------------------------------------
Mortgagor shall maintain in respect of the Premises the insurance policies and
coverages required under Section 4.19(b) of the Indenture.
SECTION 8.2 Delivery After Foreclosure. In the event that the
--------------------------
proceeds of any insurance claim are paid after the Mortgagee has exercised its
right to foreclose the Lien hereof, such proceeds shall be paid to the Mortgagee
to satisfy any deficiency remaining after such foreclosure. Mortgagee shall
retain its interest in the Insurance Policies required to be maintained pursuant
to this Mortgage during any redemption period. The amount of any such proceeds
in excess of any deficiency claim of the Mortgagee shall be released to the
Mortgagor.
ARTICLE IX
CONTESTING OF PAYMENTS
SECTION 9.1 Contesting of Taxes and Certain Statutory Liens.
-----------------------------------------------
The Mortgagor may at its own expense contest the validity, amount or
applicability of any Charges as long as the contest thereof shall be conducted
in accordance with, and permitted pursuant to the provisions of, the Indenture.
Notwithstanding the foregoing provisions of this Section 9.1, (i) no contest of
-----------
any such obligations may be pursued by the Mortgagor (A) if such contest would
expose the Mortgagee or any Holder to any possible criminal liability or (B)
unless the Mortgagor shall have furnished a bond or other security therefor
reasonably satisfactory to the Mortgagee or such Holder, as the case may be, any
additional civil liability for failure to comply with such obligations and (ii)
if at any time payment or performance of any obligation contested by the
Mortgagor pursuant to this Section 9.1 shall become necessary to prevent the
-----------
imminent imposition of remedies because of non-payment, the Mortgagor shall pay
or perform the same in sufficient time to prevent the imposition of remedies in
respect of such default or prospective default.
SECTION 9.2 Contesting of Insurance. The Mortgagor shall not
-----------------------
take any action that would reasonably be expected to cause the termination,
revocation or denial of any insurance coverage required to be maintained under
this Mortgage or that would be the basis for a defense to any claim under any
Insurance Policy maintained in respect of the Premises and the Mortgagor shall
otherwise comply in all respects with all Insurance Requirements in respect of
the Premises; provided, however, that the Mortgagor may, at its own expense and
-------- -------
after written notice to the Mortgagee, (i) contest the applicability or
enforceability of any such Insurance Requirements by appropriate legal
proceedings, prosecution of which does not constitute a basis for cancellation
or revocation of any insurance coverage required under Article VIII hereof or
------------
(ii) cause the Insurance Policy containing any such Insurance Requirement to be
replaced by a new policy complying with the provisions of Article VIII hereof.
------------
ARTICLE X
DESTRUCTION, CONDEMNATION AND RESTORATION
SECTION 10.1 Destruction. If there shall occur any Destruction,
-----------
individually or in the aggregate, in excess of $100,000, the Mortgagor shall
promptly send to the Mortgagee a written notice setting forth the nature and
extent of such Destruction. The proceeds of any insurance payable in respect of
such Destruction are hereby assigned and shall be paid to the Mortgagee. The Net
Loss Proceeds arising out of such Destruction, shall be applied in accordance
with the provisions of Sections 4.16, 11.02, and 10.05(c) the Indenture.
SECTION 10.2 Condemnation. If there shall occur any Taking or
------------
the commencement of any proceeding thereof, the Mortgagor shall immediately
notify the Mortgagee upon receiving notice of such Taking or commencement of
proceedings therefor. The Mortgagee may, at its option, participate in any
proceedings or negotiations which might result in any Taking, and the Mortgagor
shall deliver or cause to be delivered to the Mortgagee all instruments
requested by it to permit such participation. The Mortgagee may be represented
by counsel reasonably satisfactory to it at the reasonable expense of the
Mortgagor in connection with any such participation. The Mortgagor shall pay all
reasonable fees, costs and expenses incurred by the Mortgagee in connection with
any Taking and in seeking and obtaining any award or payment on account thereof.
Any proceeds, award or payment in respect of any Taking are hereby assigned and
shall be paid to the Mortgagee. The Mortgagor shall take all steps necessary to
notify the condemning authority of such assignment. The Net Loss Proceeds
arising out of such Taking shall be applied in accordance with the provisions of
Sections 4.16, 11.02, and 10.05(c) the Indenture.
ARTICLE XI
EVENTS OF DEFAULT AND REMEDIES
SECTION 11.1 Events of Default. It shall be an Event of Default
-----------------
hereunder if there shall have occurred and be continuing an Event of Default
under the Indenture.
SECTION 11.2 Remedies in Case of an Event of Default. If any
---------------------------------------
Event of Default shall have occurred and be continuing, the Mortgagee may at its
option, in addition to any other action permitted under this Mortgage or the
Indenture or by law, statute or in equity, take one or more of the following
actions to the greatest extent permitted by local law:
(i) by written notice to the Issuer and the Mortgagor, declare
the entire unpaid amount of the Secured Obligations to be due and
payable immediately;
(ii) personally, or by its agents or attorneys, (A) enter into
and upon and take possession of all or any part of the Premises
together with the books, records and accounts of the Mortgagor relating
thereto and, exclude the Mortgagor, its agents and servants wholly
therefrom, (B) use, operate, manage and control the Premises and
conduct the business thereof, (C) maintain and restore the Premises,
(D) make all necessary or proper repairs, renewals and replacements and
such useful Alterations thereto and thereon as the Mortgagee may deem
advisable, (E) manage, lease and operate the Premises and carry on the
business thereof and exercise all rights and powers of the Mort
gagor with respect thereto either in the name of the Mortgagor or
otherwise or (F) collect and receive all Rents. The Mortgagee shall be
under no liability for or by reason of any such taking of possession,
entry, removal or holding, operation or management except that any
amounts so received by the Mortgagee shall be applied in accordance
with the provisions of the Indenture;
(iii) with or without entry, personally or by its agents or
attorneys, (A) sell the Mortgaged Property and all estate, right, title
and interest, claim and demand therein at one or more sales in one or
more parcels, in accordance with the provisions of Section 11.3 or (B)
------------
institute and prosecute proceedings for the complete or partial
foreclosure of the Lien and security interests created and evidenced
hereby; or
(iv) take such steps to protect and enforce its rights whether
by action, suit or proceeding at law or in equity for the specific
performance of any covenant, condition or agreement in the Indenture,
the Notes and the Collateral Documents, or in aid of the execution of
any power granted in this Mortgage, or for any foreclosure hereunder,
or for the enforcement of any other appropriate legal or equitable
remedy or otherwise as the Mortgagee shall elect.
SECTION 11.3 Sale of Mortgaged Property if Event of Default
----------------------------------------------
Occurs; Proceeds of Sale.
- ------------------------
(i) If any Event of Default shall have occurred and be
continuing, the Mortgagee may institute an action to foreclose this Mortgage or
take such other action as may be permitted and available to the Mortgagee at law
or in equity for the enforcement of the Indenture and the Notes and realization
on the Mortgaged Property and proceeds thereon through power of sale or to final
judgment and execution thereof for the Secured Obligations, and in furtherance
thereof the Mortgagee may sell the Mortgaged Property at one or more sales, as
an entirety or in parcels, at such time and place, upon such terms and after
such notice thereof as may be required or permitted by law or statute or in
equity. The Mortgagee may execute and deliver to the purchaser at such sale a
conveyance of the Mortgaged Property in fee simple and an assignment or
conveyance of all the Mortgagor's Interest in the Leases and the Mortgaged
Property, each of which conveyances and assignments shall contain recitals as to
the Event of Default upon which the execution of the power of sale herein
granted depends, and the Mortgagor hereby constitutes and appoints the Mortgagee
the true and lawful attorney in fact of the Mortgagor to make any such recitals,
sale, assignment and conveyance, and all of the acts of the Mortgagee as such
attorney in fact are hereby ratified and confirmed. The Mortgagor agrees that
such recitals shall be binding and conclusive upon the Mortgagor and that any
assignment or conveyance to be made by the Mortgagee shall divest the Mortgagor
of all right, title, interest, equity and right of redemption, including any
statutory redemption, in and to the Mortgaged Property. The power and agency
hereby granted are coupled with an interest and are irrevocable by death or
dissolution, or otherwise, and are in addition to any and all other remedies
which the Mortgagee may have hereunder, at law or in equity. So long as the
Secured Obligations, or any part thereof, remain unpaid, the Mortgagor agrees
that possession of the Mortgaged Property by the Mortgagor, or any person
claiming under the Mortgagor, shall be as tenant, and, in case of a sale under
power or upon foreclosure as provided in this Mortgage, the Mortgagor and any
person in possession under the Mortgagor, as to whose interest such sale was not
made subject, shall, at the option of the purchaser at such sale, then become
and be tenants holding over, and shall forthwith deliver possession to such
purchaser, or be summarily dispossessed in accordance with the laws applicable
to tenants holding over. In case of any sale under this Mortgage by virtue of
the exercise of the powers herein granted, or pursuant to any order in any
judicial proceeding or otherwise, the Mortgaged Property may be sold as an
entirety or in separate parcels in such manner or order as the Mortgagee in its
sole discretion may elect. One or more exercises of powers herein granted shall
not
extinguish or exhaust such powers, until the entire Mortgaged Property is sold
or all amounts secured hereby are paid in full.
(ii) In the event of any sale made under or by virtue of this
Article XI, the entire principal of, and interest in respect of the Secured
- ----------
Obligations, if not previously due and payable, shall, at the option of the
Mortgagee, immediately become due and payable, anything in this Mortgage to the
contrary notwithstanding.
(iii) The proceeds of any sale made under or by virtue of this
Article XI, together with any other sums which then may be held by the Mortgagee
- ----------
under this Mortgage, whether under the provisions of this Article XI or
----------
otherwise, shall be applied in accordance with the provisions of the Indenture;
(iv) The Mortgagee may bid for and acquire the Mortgaged
Property or any part thereof at any sale made under or by virtue of this Article
-------
XI and, in lieu of paying cash therefor, may make settlement for the purchase
- --
price by crediting against the purchase price the unpaid amounts (whether or not
then due and owing) in respect of the Secured Obligations, after deducting from
the sales price the expense of the sale and the reasonable costs of the action
or proceedings and any other sums that the Mortgagee is authorized to deduct
under this Mortgage.
(v) The Mortgagee may adjourn from time to time any sale by
it to be made under or by virtue hereof by announcement at the time and place
appointed for such sale or for such adjourned sale or sales, and, the Mortgagee,
without further notice or publication, may make such sale at the time and place
to which the same shall be so adjourned.
(vi) If the Premises is comprised of more than one parcel of
land, the Mortgagee may take any of the actions authorized by this Section 11.3
in respect of any or a number of individual parcels.
SECTION 11.4 Additional Remedies in Case of an Event of
------------------------------------------
Default.
- -------
(i) The Mortgagee shall be entitled to recover judgment as
aforesaid either before, after or during the pendency of any proceedings for the
enforcement of the provisions hereof, and the right of the Mortgagee to recover
such judgment shall not be affected by any entry or sale hereunder, or by the
exercise of any other right, power or remedy for the enforcement of the
provisions hereof, or the foreclosure of, or absolute conveyance pursuant to,
this Mortgage. In case of proceedings against the Mortgagor in insolvency or
bankruptcy or any proceedings for its reorganization or involving the
liquidation of its assets, the Mortgagee shall be entitled to prove the whole
amount of principal and interest and other payments, charges and costs due in
respect of the Secured Obligations to the full amount thereof without deducting
therefrom any proceeds obtained from the sale of the whole or any part of the
Mortgaged Property; provided, however, that in no case shall the Mortgagee
-------- -------
receive a greater amount than the aggregate of such principal, interest and such
other payments, charges and costs (with interest at the Default Rate) from the
proceeds of the sale of the Mortgaged Property and the distribution from the
estate of the Mortgagor.
(ii) Any recovery of any judgment by the Mortgagee and any
levy of any execution under any judgment upon the Mortgaged Property shall not
affect in any manner or to any extent the Lien and security interests created
and evidenced hereby upon the Mortgaged Property or any part thereof, or any
conveyances, powers, rights and remedies of the Mortgagee hereunder, but such
conveyances, powers, rights and remedies shall continue unimpaired as before.
(iii) Any monies collected by the Mortgagee under this Section
-------
11.4 shall be applied in accordance with the provisions of Section 11.3(iii).
- ---- -----------------
SECTION 11.5 Legal Proceedings After an Event of Default.
-------------------------------------------
(i) After the occurrence and during the continuance of any
Event of Default and immediately upon the commencement of any action, suit or
legal proceedings to obtain judgment for the Secured Obligations or any part
thereof, or of any proceedings to foreclose the Lien and security interest
created and evidenced hereby or otherwise enforce the provisions hereof or of
any other proceedings in aid of the enforcement hereof, the Mortgagor shall
enter its voluntary appearance in such action, suit or proceeding.
(ii) Upon the occurrence and during the continuance of an
Event of Default, the Mortgagee shall be entitled forthwith as a matter of
right, concurrently or independently of any other right or remedy hereunder
either before or after declaring the Secured Obligations or any part thereof to
be due and payable, to the appointment of a receiver without giving notice to
any party and without regard to the adequacy or inadequacy of any security for
the Secured Obligations or the solvency or insolvency of any person or entity
then legally or equitably liable for the Secured Obligations or any portion
thereof. The Mortgagor hereby consents to the appointment of such receiver.
Notwithstanding the appointment of any receiver, the Mortgagee shall be entitled
as pledgee to the possession and control of any cash, deposits or instruments at
the time held by or payable or deliverable under the terms of the Indenture to
the Mortgagee.
(iii) The Mortgagor shall not (A) at any time insist upon, or
plead, or in any manner whatsoever claim or take any benefit or advantage of any
stay or extension or moratorium law, any exemption from execution or sale of the
Mortgaged Property or any part thereof, wherever enacted, now or at any time
hereafter in force, which may affect the covenants and terms of performance
hereof, (B) claim, take or insist on any benefit or advantage of any law now or
hereafter in force providing for the valuation or appraisal of the Mortgaged
Property, or any part thereof, prior to any sale or sales of the Mortgaged
Property which may be made pursuant to this Mortgage, or pursuant to any decree,
judgment or order of any court of competent jurisdiction or (C) after any such
sale or sales, claim or exercise any right under any statute heretofore or
hereafter enacted to redeem the property so sold or any part thereof. To the
extent permitted by applicable law, the Mortgagor hereby expressly (A) waives
all benefit or advantage of any such law or laws, including, without limitation,
any statute of limitations applicable to this Mortgage, (B) waives all rights to
have the Mortgaged Property marshalled on any foreclosure of this Mortgage, (C)
waives any and all rights to trial by jury in any action or proceeding related
to the enforcement hereof, (D) waives any objection which it may now or
hereafter have to the laying of venue of any action, suit or proceeding brought
in connection with this Mortgage and further waives and agrees not to plead that
any such action, suit or proceeding brought in any such court has been brought
in an inconvenient forum and (E) covenants not to hinder, delay or impede the
execution of any power granted or delegated to the Mortgagee by this Mortgage
but to suffer and permit the execution of every such power as though no such law
or laws had been made or enacted. The Mortgagee shall not be liable for any
incorrect or improper payment made pursuant to this Article XI in the absence of
----------
gross negligence or willful misconduct.
SECTION 11.6 Remedies Not Exclusive. No remedy conferred upon
----------------------
or reserved to the Mortgagee by this Mortgage is intended to be exclusive of any
other remedy or remedies, and each and every such remedy shall be cumulative and
shall be in addition to every other remedy given under this Mortgage or now or
hereafter existing at law or in equity. Any delay or omission of the Mortgagee
to exercise any right or power accruing on any Event of Default shall not impair
any such right or power and shall
not be construed to be a waiver of or acquiescence in any such Event of Default.
Every power and remedy given by this Mortgage may be exercised from time to time
concurrently or independently, when and as often as may be deemed expedient by
the Mortgagee in such order and manner as the Mortgagee, in its sole discretion,
may elect. If the Mortgagee accepts any monies required to be paid by the
Mortgagor under this Mortgage after the same become due, such acceptance shall
not constitute a waiver of the right either to require prompt payment, when due,
of all other sums secured by this Mortgage or to declare an Event of Default
with regard to subsequent defaults. If the Mortgagee accepts any monies required
to be paid by the Mortgagor under this Mortgage in an amount less than the sum
then due, such acceptance shall be deemed an acceptance on account only and on
the condition that it shall not constitute a waiver of the obligation of the
Mortgagor to pay the entire sum then due, and the Mortgagor's failure to pay the
entire sum then due shall be and continue to be a default hereunder
notwithstanding acceptance of such amount on account.
SECTION 11.7 Special Louisiana Provisions.
----------------------------
(i) Without limiting the generality of the foregoing, should
one or more Events of Default occur or exist and be continuing under this
Mortgage, as provided above, the Mortgagee, at its option, may exercise any one
or more of this following rights and remedies, in addition to any other rights
and remedies provided by law and under this Mortgage to the greatest extent
permitted by applicable Louisiana law. Nothing contained herein shall be
construed as constituting the Mortgagee as mortgagee in possession in absence of
the actual taking of possession of the Premises by the Mortgagee.
(ii) The Mortgagee shall have the right, at its sole option, to
accelerate the maturity and demand immediate payment in full of any and all of
the Secured Obligations. The Mortgagee shall then have the right to commence
appropriate foreclosure proceedings against the Mortgaged Property and against
the Mortgagor's rights as provided in this Mortgage.
(iii) In the event that the Mortgagee elects to commence
appropriate Louisiana foreclosure proceedings under this Mortgage, the Mortgagee
may cause the Mortgaged Property, or any part or parts thereof, to be
immediately seized and sold, whether in term of court or in vacation, under
ordinary or executory process, in accordance with applicable Louisiana law, to
the highest bidder for cash, with or without appraisement, and without the
necessity of making additional demand upon or notifying the Mortgagor or placing
the Mortgagor in default, all of which are expressly waived.
(iv) For purposes of foreclosure under Louisiana executory
process procedures, the Mortgagor confesses judgment and acknowledges to be
indebted to the Mortgagee, up to the full amount of the indebtedness in
principal, interest, costs, expenses, reasonable attorney's fees and other fees
and charges and amounts contemplated hereunder. The Mortgagor further confesses
judgment and acknowledges to be indebted unto and in favor of the Mortgagee in
the amount of all future advances that the Mortgagee may make on the Mortgagor's
behalf pursuant to this Mortgage, together with interest thereon. To the extent
permitted under applicable Louisiana law, the Mortgagor additionally waives: (1)
the benefit of appraisal as provided in Articles 2332, 2336, 2723, and 2724 of
the Louisiana Code of Civil Procedure, and all other laws with regard to
appraisal upon judicial sale; (2) the demand and three (3) days' delay provided
under Articles 22639 and 2721 of the Louisiana Code of Civil Procedure; (3) the
notice of seizure as provided under Articles 2293 and 2721 of the Louisiana Code
of Civil Procedure; (4) the three (3) days' delay provided under Articles 2331,
2722 and 2723 of the Louisiana Code of Civil Procedure and all other Articles
not specifically mentioned above. The Mortgagor further agrees that any
declaration of fact made by authentic act before a Notary Public and two
witnesses, by a Person declaring that such facts are within his
or her knowledge, shall constitute authentic evidence of such facts for purposes
of foreclosure under applicable Louisiana law and for purposes of La, R.S.
9:3504(D)(6) and La. R.S. 10:9-508, to the extent applicable.
(v) Should any or all of the Mortgaged Property be seized as
an incident to an action for the recognition or enforcement of this Mortgage, by
executory process, sequestration, attachment, writ of fieri facias or otherwise,
the Mortgagor hereby agrees that the court issuing any such order shall, if
requested by the Mortgagee, appoint the Mortgagee, or any agent designated by
the Mortgagee or any Person named by the Mortgagee at the time such seizure is
requested, or any time thereafter, as Keeper of the Mortgaged Property as
provided under La. R.S. 9:5136, et seq. Such a Keeper shall be entitled to
reasonable compensation. The Mortgagor agrees to pay the reasonable fees of such
Keeper which compensation to the Keeper shall also be secured by this Mortgage
in the form of an future advances as provided in this Mortgage.
(vi) Should it become necessary for the Mortgagee to foreclose
under this Mortgage, all declarations of fact, which are made under an authentic
act before a Notary Public in the presence of two witnesses, by a person
declaring such facts to lie within his or her knowledge, shall constitute
authentic evidence for purposes of executory process and also for purposes of
La. R.S. 9:3509.1, La. R.S. 9:3504(D)(6) and La. R.S. 10:9-508, where
applicable.
(vii) Should one or more Events of Default occur or exist under
this Mortgage, the Mortgagee shall have the additional right, at its sole
option, to separately sell the aforesaid rights, or any part of parts thereof,
at private or public compensation, or on credit, or for future delivery, without
the assumption of any credit risk. The sale of the aforesaid rights may be
without appraisement, the benefit of which is also expressly waived by the
Mortgagor. The Mortgagee may exercise any other remedies with regard to the
Mortgagor's rights as may be authorized under the Louisiana Commercial Laws (La.
R.S. 10:9-101, et seq.).
(viii) To the extent provided by law, and in the event of
foreclosure under this Mortgage, or other transfer of title or assignment of the
Mortgaged Property, or any part or parts thereof, in lieu of payment of the
Secured Obligations, whether in whole or in part, all policies of insurance and
other rights applicable to the foreclosed Mortgaged Property upon transfer of
the Mortgaged Property shall automatically inure to the benefit of and shall
pass to the purchaser(s) or transferee(s) thereof, subject to the rights of the
purchaser(s) or transferee(s) to reject such insurance coverage and/or rights at
its or their sole option and election.
(ix) The Mortgagee may, in addition to or in lieu of the
foregoing remedies, in the Mortgagee's sole discretion, commence an appropriate
action against the Mortgagor seeking specific performance of any covenant
contained in this Mortgage or in aid of the execution or enforcement of any
power in this Mortgage granted.
(x) Except as may be prohibited by applicable law, all of the
Mortgagee's rights and remedies, whether evidenced by this Mortgage or by any
other writing, shall be cumulative and may be exercised singularly or
concurrently. Election by the Mortgagee to pursue any remedy shall not exclude
pursuit of any other remedy, and an election to make expenditures or to take
action to perform an obligation of the Mortgagor under this Mortgage, after the
Mortgagor's failure to perform shall not affect the Mortgagee's right to declare
a default and exercise its remedies. Nothing under this Mortgage or otherwise
shall be construed so as to limit or restrict the rights and remedies available
to the Mortgagee following an Event of
Default, or in any way to limit or restrict the rights and abilities of the
Mortgagee to proceed directly against Mortgagor and/or against any other
co-maker, guarantor, surety or endorser of the Secured Obligations, and/or to
proceed against any other collateral directly or indirectly securing the Secured
Obligations.
ARTICLE XII
SECURITY AGREEMENT AND FIXTURE FILING
SECTION 12.1 Security Agreement.
------------------
(i) This Mortgage shall constitute a Security Agreement as
defined in the Louisiana Commercial Laws, La. R.S.ss. 10:101 et seg., and shall
create and evidence a security interest in all the equipment and in all the
other items of Mortgaged Property in which a security interest may be granted
pursuant to the Louisiana Commercial Laws (collectively, "Personal Property").
(ii) The remedies for any violation of the covenants, terms and
conditions of the agreements herein contained shall be as prescribed herein or
by general Louisiana law or, as to such part of the security which is also
reflected in any Financing Statement filed to perfect the security interest
herein created, by the specific statutory provisions now or hereinafter enacted
and specified in the Louisiana Commercial Laws, all at Mortgagee's sole
election. The mention in any financing statement of (1) the rights in or the
proceeds of any fire or hazard insurance policy, or (2) any award in eminent
domain proceedings for a taking or for loss of value, or (3) Mortgagor's
interest as lessor in any present or future lease or rights to income growing
out of the use or occupancy of the Mortgaged Property whether pursuant to lease
or otherwise, shall never be construed as in any way altering any of the rights
of Mortgagee under this Mortgage or impugning the priority of the Mortgagee's
lien granted hereby or by any other recorded document. Rather, such mention in
the financing statement is declared to be for the protection of the Mortgagee in
the event any court or judge shall at any time hold with respect to (1), (2) and
(3) above, that notice of Mortgagee's priority of interest to be effective
against a particular class of persons, including, but not limited to, the
Federal Government and any subdivisions or entity of the Federal Government,
must be filed with the clerk of court of any parish (or Calcasieu Parish
Recorder of Mortgages) pursuant to Section 9-401 of the Louisi-ana Commercial
Laws.
SECTION 12.2 Fixture Filing. From the date of its recording,
--------------
this Mortgage shall be effective as a fixture financing statement with respect
to all goods constituting part of the Mortgaged Property which are to become
fixtures related to the Land. For this purpose, the following information is set
forth:
(a) Name and Address of Debtor:
Winner's Choice Casino, Inc.,
2650 Highway 108
Sulphur, Louisiana 70663
TIN 72-1227314
and
(b) Name and Address of Secured Party:
Wells Fargo Bank Minnesota, National Association
Corporate Trust Services
213 Court Street, Suite 902
Middletown, Connecticut 06457
(c) This document covers goods which are to become fixtures. All items
that are fixtures on the date of this Mortgage shall be subject to the
mortgage Lien granted hereunder.
ARTICLE XIII
FURTHER ASSURANCES
SECTION 13.1 Recording Documentation To Assure Security. The
------------------------------------------
Mortgagor shall, forthwith after the execution and delivery hereof and
thereafter, from time to time, cause this Mortgage and any financing statement,
continuation statement or similar instrument relating to any thereof or to any
property intended to be subject to the Lien hereof to be filed, registered and
recorded in such manner and in such places as may be required by any present or
future law in order to publish notice of and fully to protect the validity and
priority thereof or the Lien hereof purported to be created upon the Mortgaged
Property and the interest and rights of the Mortgagee therein. The Mortgagor
shall pay or cause to be paid all taxes and fees incident to such filing,
registration and recording, and all reasonable expenses incident to the
preparation, execution and acknowledgment thereof, and of any instrument of
further assurance, and all Federal or state stamp taxes or other taxes, duties
and charges arising out of or in connection with the execution and delivery of
such instruments.
SECTION 13.2 Further Acts. The Mortgagor shall, at the sole cost
------------
and expense of the Mortgagor, do, execute, acknowledge and deliver all and every
such further acts, deeds, conveyances, mortgages, assignments, notices of
assignment, transfers, financing statements, continuation statements,
instruments and assurances as the Mortgagee shall from time to time reasonably
request, which may be necessary in the judgment of the Mortgagee from time to
time to assure, perfect, convey, assign, mortgage, transfer and confirm unto the
Mortgagee, the property and rights hereby conveyed or assigned or which the
Mortgagor may be or may hereafter become bound to convey or assign to the
Mortgagee or for carrying out the intention or facilitating the performance of
the terms hereof or the filing, registering or recording hereof. Without
limiting the generality of the foregoing, in the event that the Mortgagee
desires to exercise any remedies, consensual rights or attorney-in-fact powers
set forth in this Mortgage and determines it necessary to obtain any approvals
or consents of any Governmental Authority or any other Person therefor, then,
upon the reasonable request of the Mortgagee, the Mortgagor agrees to use its
reasonable efforts to assist and aid the Mortgagee to obtain as soon as
practicable any necessary approvals or consents for the exercise of any such
remedies, rights and powers. In the event the Mortgagor shall fail (i) within
ten (10) Business Days after demand, to execute or take any action required to
be executed or taken by the Mortgagor under this Section 13.2 to the extent same
------------
is necessary to maintain perfection of the Lien granted to Mortgagee hereunder
or (ii) such failure shall constitute an Event of Default, to execute or take
any action required to be executed or taken by the Mortgagor under this Section
-------
13.2 (other than the type described in clause (i) of this sentence) then, in
- ----
each of the cases described in clauses (i) and (ii) of this sentence, the
Mortgagee may execute or take the same as the attorney-in-fact for the
Mortgagor, such power of attorney being coupled with an interest and is
irrevocable.
SECTION 13.3 Additional Security. Without notice to or consent
-------------------
of the Mortgagor and without impairment of the Lien and rights created by this
Mortgage, the Mortgagee may accept (but the Mortgagor shall not be obligated to
furnish) from the Mortgagor or from any other Person, additional security for
the Secured Obligations. Neither the giving hereof nor the acceptance of any
such additional security shall prevent the Mortgagee from resorting, first, to
such additional security, and, second, to the security created by this Mortgage
without affecting the Mortgagee's Lien and rights under this Mortgage.
ARTICLE XIV
MISCELLANEOUS
SECTION 14.1 Covenants To Run with the Land. All of the grants,
------------------------------
covenants, terms, provisions and conditions in this Mortgage shall run with the
Land and shall apply to, and bind the successors and assigns of, the Mortgagor.
If there shall be more than one mortgagor with respect to the Mortgaged
Property, the covenants and warranties hereof shall be joint and several.
SECTION 14.2 No Merger. The rights and estate created by this
---------
Mortgage shall not, under any circumstances, be held to have merged into any
other estate or interest now owned or hereafter acquired by the Mortgagee unless
the Mortgagee shall have consented to such merger in writing, such consent not
to be unreasonably withheld.
SECTION 14.3 Concerning Mortgagee.
--------------------
(i) The Mortgagee has been appointed as trustee pursuant to
the Indenture. The actions of the Mortgagee hereunder are subject to the
provisions of the Indenture. The Mortgagee shall have the right hereunder to
make demands, to give notices, to exercise or refrain from exercising any
rights, and to take or refrain from taking action (including, without
limitation, the release or substitution of the Mortgaged Property), in
accordance with this Mortgage and the Indenture. The Mortgagee may employ agents
and attorneys-in-fact in connection herewith and shall not be liable for the
negligence or misconduct of any such agents or attorneys-in-fact selected by it
in good faith. The Mortgagee may resign and a successor Mortgagee may be
appointed in the manner provided in the Indenture. Upon the acceptance of any
appointment as the Mortgagee by a successor Mortgagee, that successor Mortgagee
shall thereupon succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Mortgagee under this Mortgage, and the
retiring Mortgagee shall thereupon be discharged from its duties and obligations
under this Mortgage. After any retiring Mortgagee's resignation, the provisions
hereof shall inure to its benefit as to any actions taken or omitted to be taken
by it under this Mortgage while it was the Mortgagee.
(ii) The Mortgagee shall be deemed to have exercised reasonable
care in the custody and preservation of the Mortgaged Property in its possession
if such Mortgaged Property is accorded treatment substantially equivalent to
that which the Mortgagee, in its individual capacity, accords its own property
consisting of similar instruments or interests, it being understood that neither
the Mortgagee nor any of the Secured Parties shall have responsibility for
taking any necessary steps to preserve rights against any Person with respect to
any Mortgaged Property.
(iii) The Mortgagee shall be entitled to rely upon any written
notice, statement, certificate, order or other document or any telephone message
believed by it to be genuine and correct and to
have been signed, sent or made by the proper person, and, with respect to all
matters pertaining to this Mortgage and its duties hereunder, upon advice of
counsel selected by it.
(iv) If any portion of the Mortgaged Property also constitutes
collateral granted to the Mortgagee under any other deed of trust, mortgage,
security agreement, pledge or instrument of any type, in the event of any
conflict between the provisions hereof and the provisions of such other deed of
trust, mortgage, security agreement, pledge or instrument of any type in respect
of such collateral, the Mortgagee, in its sole discretion, shall select which
provision or provisions shall control.
SECTION 14.4 Mortgagee May Perform; Mortgagee Appointed
------------------------------------------
Attorney-in-Fact. If the Mortgagor shall fail to perform any covenants contained
- ----------------
in this Mortgage, subject to any applicable grace periods or contest rights
permitted pursuant to Article IX hereof or as otherwise permitted by any
----------
Collateral Document (including, without limitation, the Mortgagor's covenants to
(i) pay the premiums in respect of all required insurance policies hereunder,
(ii) pay Charges, (iii) make repairs, (iv) discharge Liens or (v) pay or perform
any obligations of the Mortgagor under any Mortgaged Property) or if any
warranty on the part of the Mortgagor contained herein shall be breached, the
Mortgagee may (but shall not be obligated to) do the same or cause it to be done
or remedy any such breach, and may expend funds for such purpose; provided,
--------
however, that the Mortgagee shall in no event be bound to inquire into the
- -------
validity of any tax, Lien, imposition or other obligation which the Mortgagor
fails to pay or perform as and when required hereby and which the Mortgagor does
not contest in accordance with the provisions of Article IX hereof. Any and all
----------
amounts reasonably so expended by the Mortgagee shall be paid by the Mortgagor
in accordance with the provisions of Section 14.5 hereof. Neither the provisions
------------
of this Section 14.4 nor any action taken by the Mortgagee pursuant to the
------------
provisions of this Section 14.4 shall prevent any such failure to observe any
------------
covenant contained in this Mortgage nor any breach of warranty from constituting
an Event of Default. Upon the occurrence and during the continuance of an Event
of Default the Mortgagor hereby appoints the Mortgagee its attorney-in-fact,
with full authority in the place and stead of the Mortgagor and in the name of
the Mortgagor to take any action and to execute any instrument consistent with
the terms hereof and the other Collateral Documents which the Mortgagee may deem
necessary or advisable to accomplish the purposes hereof. The foregoing grant of
authority is a power of attorney coupled with an interest and such appointment
shall be irrevocable for the term hereof. The Mortgagor hereby ratifies all that
such attorney shall lawfully do or cause to be done by virtue hereof.
SECTION 14.5 Expenses The Mortgagor will upon demand pay to the
--------
Mortgagee the amount of any and all reasonable costs and expenses, including the
reasonable fees and expenses of its counsel and the reasonable fees and expenses
of any experts and agents which the Mortgagee may incur in connection with (i)
any action, suit or other proceeding affecting the Mortgaged Property or any
part thereof commenced, in which action, suit or proceeding the Mortgagee is
made a party or participates or in which the right to use the Mortgaged Property
or any part thereof is threatened, or in which it becomes necessary in the
judgment of the Mortgagee to defend or uphold the Lien hereof (including,
without limitation, any action, suit or proceeding to establish or uphold the
compliance of the Mortgaged Property with any Requirements of Law), (ii) the
collection of the Secured Obligations, (iii) the enforcement and administration
hereof, (iv) the custody or preservation of, or the sale of, collection from, or
other realization upon, any of the Mortgaged Property, (v) the exercise or
enforcement of any of the rights of the Mortgagee or any Secured Party hereunder
or (vi) the failure by the Mortgagor to perform or observe any of the provisions
hereof. All amounts expended by the Mortgagee and payable by the Mortgagor under
this Section 14.5 shall be due upon demand therefor (together with interest
------------
thereon accruing at the Default Rate during the period from and including the
date on which such funds were so expended to the date of repayment) and
shall be part of the Secured Obligations. The Mortgagor's obligations under this
Section 14.5 shall survive the termination hereof and the discharge of the
- ------------
Mortgagor's other obligations under this Mortgage.
SECTION 14.6 Indemnity.
---------
(i) The Mortgagor agrees to indemnify, pay and hold harmless
the Mortgagee and each of the other Secured Parties and the officers, directors,
employees, agents and Affiliates of the Mortgagee and each of the other Secured
Parties (collectively, the "Indemnitees") from and against any and all other
-----------
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
claims, costs (including, without limitation, settlement costs), expenses or
disbursements of any kind or nature whatsoever (including, without limitation,
the reasonable fees and disbursements of counsel for such Indemnitees in
connection with any investigative, administrative or judicial proceeding,
commenced or threatened, whether or not such Indemnitee shall be designated a
party thereto), which may be imposed on, incurred by or asserted against that
Indemnitee, in any manner relating to or arising out hereof, the Indenture, the
Notes, any other Collateral Document or any other document evidencing the
Secured Obligations (including, without limitation, any misrepresentation by the
Mortgagor in this Mortgage, the Indenture, the Notes, any other Collateral
Document or any other document evidencing the Secured Obligations (the
"Indemnified Liabilities"); provided, however, that the Mortgagor shall have no
----------------------- -------- -------
obligation to an Indemnitee hereunder with respect to Indemnified Liabilities to
the extent it has been determined by a final decision (after all appeals and the
expiration of time to appeal) by a court of competent jurisdiction that such
Indemnified Liabilities arose from the gross negligence or willful misconduct of
that Indemnitee. To the extent that the undertaking to indemnify, pay and hold
harmless set forth in the preceding sentence may be unenforceable because it is
violative of any law or public policy, the Mortgagor shall contribute the
maximum portion which it is permitted to pay and satisfy under applicable law,
to the payment and satisfaction of all Indemnified Liabilities incurred by the
Indemnitees or any of them.
(ii) Survival. The obligations of the Mortgagor contained in
--------
this Section 14.6 shall survive the termination hereof and the discharge of the
------------
Mortgagor's other obligations under this Mortgage, the Indenture and the other
Collateral Documents.
(iii) Reimbursement. Any amount paid by any Indemnitee as to
-------------
which such Indemnitee has the right to reimbursement shall constitute Secured
Obligations secured by the Mortgaged Property.
SECTION 14.7 Continuing Security Interest; Assignment. This
----------------------------------------
Mortgage shall create a continuing Lien on and security interest in the
Mortgaged Property and shall (i) be binding upon the Mortgagor, its respective
successors and assigns and (ii) inure, together with the rights and remedies of
the Mortgagee hereunder, to the benefit of the Mortgagee and the other Secured
Parties and each of their respective successors, transferees and assigns. No
other Persons (including, without limitation, any other creditor of Mortgagor)
shall have any interest herein or any right or benefit with respect hereto.
Without limiting the generality of the foregoing clause (ii), any Holder of the
Notes may assign or otherwise transfer any indebtedness held by it secured by
this Mortgage to any other Person, and such other Person shall thereupon become
vested with all the benefits in respect thereof granted to such Holder, herein
or otherwise, subject however, to the provisions of the Indenture.
SECTION 14.8 Termination; Release. The Mortgaged Property shall
--------------------
be released from the Lien of this Mortgage in accordance with the provisions of
Article 10 the Indenture.
- ----------
SECTION 14.9 Modification in Writing. No amendment,
-----------------------
modification, supplement, termination or waiver of or to any provision hereof,
nor consent to any departure by the Mortgagor therefrom, shall be effective
unless the same shall be done in accordance with the terms of the Indenture and
unless in writing and signed by the Mortgagee and Mortgagor. Any amendment,
modification or supplement of or to any provision hereof, any waiver of any
provision hereof and any consent to any departure by the Mortgagor from the
terms of any provision hereof shall be effective only in the specific instance
and for the specific purpose for which made or given. Except where notice is
specifically required by this Mortgage or any other Collateral Document, no
notice to or demand on the Mortgagor in any case shall entitle the Mortgagor to
any other or further notice or demand in similar or other circumstances.
SECTION 14.10 Notices. Unless otherwise provided herein or in
-------
the Indenture, any notice or other communication herein required or permitted to
be given shall be given in the manner and become effective as set forth in the
Indenture, if to the Mortgagor, addressed to it at the address of the Issuer set
forth in the Indenture, and as to the Mortgagee, addressed to it at its address
set forth in the Indenture, or in each case at such other address as shall be
designated by such party in a written notice to the other party complying as to
delivery with the terms of this Section 14.10.
-------------
SECTION 14.11 GOVERNING LAW; SERVICE OF PROCESS; WAIVER OF JURY
-------------------------------------------------
TRIAL. THIS MORTGAGE SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED
- -----
IN ACCORDANCE WITH, THE LAWS OF THE STATE IN WHICH THE PREMISES ARE LOCATED,
WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS, EXCEPT TO THE EXTENT THAT THE
VALIDITY OR PERFECTION OF THE SECURITY INTEREST HEREUNDER, OR REMEDIES
HEREUNDER, IN RESPECT OF ANY PARTICULAR ITEM OR TYPE OF MORTGAGED PROPERTY ARE
GOVERNED BY THE LAWS OF A JURISDICTION OTHER THAN SUCH STATE. THE MORTGAGOR
AGREES THAT SERVICE OF PROCESS IN ANY PROCEEDING MAY BE EFFECTED BY MAILING A
COPY THEREOF BY REGISTERED OR CERTIFIED MAIL (OR ANY SUBSTANTIALLY SIMILAR FORM
OF MAIL), POSTAGE PREPAID, TO THE ISSUER AT ITS ADDRESS SET FORTH IN THE
INDENTURE OR AT SUCH OTHER ADDRESS OF WHICH THE MORTGAGEE SHALL HAVE BEEN
NOTIFIED PURSUANT THERETO. IF ANY AGENT APPOINTED BY THE MORTGAGOR REFUSES TO
ACCEPT SERVICE, THE MORTGAGOR HEREBY AGREES THAT SERVICE UPON IT BY MAIL SHALL
CONSTITUTE SUFFICIENT NOTICE. NOTHING HEREIN SHALL AFFECT THE RIGHT TO SERVE
PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT THE RIGHT OF THE
MORTGAGEE TO BRING PROCEEDINGS AGAINST THE MORTGAGOR IN THE COURTS OF ANY OTHER
JURISDICTION. THE MORTGAGOR HEREBY IRREVOCABLY WAIVES ALL RIGHT TO A TRIAL BY
JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO
THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
SECTION 14.12 Severability of Provisions. Any provision hereof
--------------------------
which is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof or
affecting the validity or enforceability of such provision in any other
jurisdiction.
SECTION 14.13 Limitation on Interest Payable. It is the
------------------------------
intention of the parties to conform strictly to the usury laws, whether state or
Federal, that are applicable to the transaction of which this Mortgage is a
part. All agreements between the Mortgagor and the Mortgagee, whether now
existing or hereafter arising and whether oral or written, are hereby expressly
limited so that in no contingency or event
whatsoever shall the amount paid or agreed to be paid by the Mortgagor for the
use, forbearance or detention of the money to be loaned or advanced under the
Indenture or any related document or for the payment or performance of any
covenant or obligation contained herein or in the Indenture or any related
document exceed the maximum amount permissible under applicable Federal or state
usury laws. If under any circumstances whatsoever fulfillment of any such
provision, at the time performance of such provision shall be due, shall involve
exceeding the limit of validity prescribed by law, then the obligation to be
fulfilled shall be reduced to the limit of such validity. If under any
circumstances the Mortgagor shall have paid an amount deemed interest by
applicable law, which would exceed the highest lawful rate, such amount that
would be excessive interest under applicable usury laws shall be applied to the
reduction of the principal amount owing in respect of the Secured Obligations
and not to the payment of interest, or if such excessive interest exceeds the
unpaid balance of principal and any other amounts due hereunder, the excess
shall be refunded to the Mortgagor. All sums paid or agreed to be paid for the
use, forbearance or detention of the principal under any extension of credit by
the Mortgagee shall, to the extent permitted by applicable law, and to the
extent necessary to preclude exceeding the limit of validity prescribed by law,
be amortized, prorated, allocated and spread from the date hereof until payment
in full of the Secured Obligations so that the actual rate of interest on
account of such principal amounts is uniform throughout the term hereof.
SECTION 14.14 Business Days. In the event any time period or
-------------
any date provided in this Mortgage ends or falls on a day other than a Business
Day, then such time period shall be deemed to end and such date shall be deemed
to fall on the next succeeding Business Day, and performance herein may be made
on such Business Day, with the same force and effect as if made on such other
day.
SECTION 14.15 Relationship. The relationship of the Mortgagee
------------
to the Mortgagor hereunder is strictly and solely that of lender and borrower
and mortgagor and mortgagee and nothing contained in the Indenture, the Notes,
this Mortgage or any other document or instrument now existing and delivered in
connection therewith or otherwise in connection with the Secured Obligations is
intended to create, or shall in any event or under any circumstance be construed
as creating a partnership, joint venture, tenancy-in-common, joint tenancy or
other relationship of any nature whatsoever between the Mortgagee and the
Mortgagor other than as lender and borrower and mortgagor and mortgagee.
SECTION 14.16 Waiver of Stay.
--------------
(i) The Mortgagor agrees that in the event that the Mortgagor
or any property or assets of the Mortgagor shall hereafter become the subject of
a voluntary or involuntary proceeding under the Bankruptcy Code or the Mortgagor
shall otherwise be a party to any Federal or state bankruptcy, insolvency,
moratorium or similar proceeding to which the provisions relating to the
automatic stay under Section 362 of the Bankruptcy Code or any similar provision
in any such law is applicable, then, in any such case, whether or not the
Mortgagee has commenced foreclosure proceedings under this Mortgage, the
Mortgagee shall be entitled to relief from any such automatic stay as it relates
to the exercise of any of the rights and remedies (including, without
limitation, any foreclosure proceedings) available to the Mortgagee as provided
in this Mortgage, in any other Collateral Document or any other document
evidencing the Secured Obligations.
(ii) The Mortgagee shall have the right to petition or move any
court having jurisdiction over any proceeding described in Section 14.16(i)
----------------
hereof for the purposes provided therein, and the Mortgagor agrees (i) not to
oppose any such petition or motion and (ii) at the Mortgagor's sole cost and
expense, to assist and cooperate with the Mortgagee, as may be requested by the
Mortgagee from time to time, in
obtaining any relief requested by the Mortgagee, including, without limitation,
by filing any such petitions, supplemental petitions, requests for relief,
documents, instruments or other items from time to time requested by the
Mortgagee or any such court.
SECTION 14.17 No Credit for Payment of Taxes or Impositions.
---------------------------------------------
The Mortgagor shall not be entitled to any credit against the principal,
premium, if any, or interest payable under the Indenture or the Notes, and the
Mortgagor shall not be entitled to any credit against any other sums which may
become payable under the terms thereof or hereof, by reason of the payment of
any Charge on the Mortgaged Property or any part thereof.
SECTION 14.18 No Claims Against the Mortgagee. Nothing
-------------------------------
contained in this Mortgage shall constitute any consent or request by the
Mortgagee, express or implied, for the performance of any labor or services or
the furnishing of any materials or other property in respect of the Premises or
any part thereof, nor as giving the Mortgagor any right, power or authority to
contract for or permit the performance of any labor or services or the
furnishing of any materials or other property in such fashion as would permit
the making of any claim against the Mortgagee in respect thereof or any claim
that any Lien based on the performance of such labor or services or the
furnishing of any such materials or other property is prior to the Lien hereof.
SECTION 14.19 Obligations Absolute. All obligations of the
--------------------
Mortgagor hereunder shall be absolute and unconditional irrespective of:
(i) any bankruptcy, insolvency, reorganization, arrangement,
readjustment, composition, liquidation or the like of the Mortgagor,
the Issuer or any other Guarantor;
(ii) any lack of validity or enforceability of the Indenture,
the Notes or any other agreement or instrument relating thereto;
(iii) any change in the time, manner or place of payment of, or
in any other term of, all or any of the Secured Obligations, or any
other amendment or waiver of or any consent to any departure from the
Indenture, the Notes or any other agreement or instrument relating
thereto;
(iv) any exchange, release or non-perfection of any other
collateral, or any release or amendment or waiver of or consent to any
departure from any guarantee, for all or any of the Secured
Obligations;
(v) any exercise or non-exercise, or any waiver of any right,
remedy, power or privilege under or in respect hereof, the Indenture,
the Notes or any agreement or instrument relating thereto except as
specifically set forth in a waiver granted pursuant to the provisions
of Section 14.9 hereof; or
(vi) any other circumstances which might otherwise constitute
a defense available to, or a discharge of, the Mortgagor.
SECTION 14.20 Last Dollars Secured. This Mortgage secures only
--------------------
a portion of the Indebtedness owing or which may become owing by the Mortgagor.
The parties agree that any payments or repayments of such Indebtedness by the
Mortgagor shall be and be deemed to be applied first to the portion
of the Indebtedness that is not secured hereby, it being the parties' intent
that the portion of the Indebtedness last remaining unpaid shall be secured
hereby.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
THUS DONE AND PASSED, on the day, month and year first written
above, effective as of the Effective Date, in the State and Parish aforesaid, by
the undersigned Mortgagor in the presence of the undersigned Notary and the
undersigned competent witnesses, who hereunto sign their names with Mortgagor
after reading of the whole.
WITNESSES: MORTGAGOR:
WINNER'S CHOICE CASINO, INC.,
a Louisiana corporation
/s/ Douglas A. Blackshear /s/ Ian M. Stewart
_______________________________________ By: _________________________________
Douglas A. Blackshear
Printed Name: _________________________ Ian M. Stewart
Authorized Officer
/s/ Sterling W. Dale, Jr.
_______________________________________
/s/ Sterling W. Dale, Jr.
Printed Name: _________________________
/s/ Perryann P. Whitehurst
_______________________________________
Notary Public
Schedule A
----------
Legal Description
[to come from title policy]
Schedule B
----------
Prior Liens
-----------
1. Each of the liens and other encumbrances excepted as being prior to the
Lien hereof as set forth in Schedule B to the marked title insurance
commitment issued by Lawyers Title Insurance Corporation, dated as of the
date hereof and delivered to the Trustee on the date hereof, bearing
Lawyers Title Insurance Corporation reference number W0010-001 relating to
the real property described in Schedule A attached hereto.
2. Zoning and building ordinances and regulations, to the extent they
constitute Permitted Liens of the type described in clause (4) of the
definition thereof.
Schedule C
----------
Leases Affecting the Mortgaged Property
None
Exhibit 1
---------
FORM OF SUBORDINATION, NON-DISTURBANCE
AND ATTORNMENT AGREEMENT
THIS SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT
(the "Agreement") is made and entered into as of the ____ day of _______, ____
by and between ________________________________, as trustee, having an office at
_________________ (in such capacity, "Trustee"), and _____________________,
having an office at __________________________ ("Tenant").
R E C I T A L S:
- - - - - - - -
A. Tenant is the tenant under a certain lease dated
_____________, ____ between ________________________________, as landlord
("Landlord"), and Tenant, as tenant (as amended through the date hereof, the
"Lease"), pursuant to which Tenant leased a portion (the "Leased Premises") of
the property known as _____________________________, located at
_____________________________, as more particularly described in Schedule A
----------
attached hereto (the "Property").
B. Landlord has or will grant a mortgage lien on and security
interest in the Property to Trustee (for its benefit and for the benefit of the
holders of certain senior secured notes and notes issued in exchange therefor
pursuant to that certain indenture dated as of [________ ___, 2002]) pursuant to
one or more mortgages, deeds of trust, deeds to secure debt or similar security
instruments (collectively, the "Security Instruments").
C. Tenant has agreed to subordinate the Lease to the Security
Instruments and to the lien thereof and Trustee has agreed not to disturb
Tenant's possessory rights in the Leased Premises under the Lease on the terms
and conditions hereinafter set forth.
A G R E E M E N T:
- - - - - - - - -
NOW, THEREFORE, the parties hereto mutually agree as follows:
1. Subordination. Notwithstanding anything to the contrary set
-------------
forth in the Lease, the Lease and the leasehold estate created thereby and all
of Tenant's rights thereunder are and shall at all times be subject and
subordinate in all respects to the Security Instruments and the lien thereof,
and to all rights of Trustee thereunder, and to any and all advances to be made
thereunder, and to all renewals, modifications, consolidations, replacements and
extensions thereof.
2. Nondisturbance. So long as Tenant complies with the
--------------
provisions of this Agreement, pays all rents and other charges as specified in
the Lease and is not otherwise in default (beyond applicable notice and cure
periods) of any of its obligations and covenants pursuant to the Lease, Trustee
agrees for itself and its successors in interest and for any other person
acquiring title to the Property through a foreclosure (an "Acquiring Party"),
that Tenant's possession of the Leased Premises as described in the Lease will
not be disturbed during the term of the Lease by reason of a foreclosure. For
purposes of this Agreement, a "foreclosure" shall include (but not be limited
to) a sheriff's or trustee's sale under the power of sale con-
-2-
tained in the Security Instruments, the termination of any superior lease of the
Property and any other transfer of the Landlord's interest in the Property under
peril of foreclosure, including, without limitation to the generality of the
foregoing, an assignment or sale in lieu of foreclosure.
3. Attornment. Tenant agrees to attorn to, accept and recognize
----------
any Acquiring Party as the landlord under the Lease pursuant to the provisions
expressly set forth therein for the then remaining balance of the term of the
Lease, and any extensions thereof as made pursuant to the Lease. The foregoing
provision shall be self-operative and shall not require the execution of any
further instrument or agreement by Tenant as a condition to its effectiveness.
4. No Liability. Notwithstanding anything to the contrary
------------
contained herein or in the Lease, it is specifically understood and agreed that
neither the Trustee, any receiver nor any Acquiring Party shall be:
(a) liable for any act, omission, negligence or default of any
prior landlord (including Landlord); or
(b) liable for any failure of any prior landlord (including
Landlord) to construct any improvements or bound by any covenant to
construct any improvement either at the commencement of the term of the
Lease or upon any renewal or extension thereof or upon the addition of
additional space pursuant to any expansion right contained in the
Lease; or
(c) subject to any offsets, credits, claims or defenses which
Tenant might have against any prior landlord (including Landlord); or
(d) bound by any rent or additional rent which is payable on a
monthly basis and which Tenant might have paid for more than one (1)
month in advance to any prior landlord (including Landlord) or by any
security deposit or other prepaid charge which Tenant might have paid
in advance to any prior landlord (including Landlord); or
(e) liable to Tenant hereunder or under the terms of the Lease
beyond its interest in the Property; or
(f) bound by any assignment, subletting, renewal, extension or
any other agreement or modification of the Lease made without the
written consent of Trustee; or
(g) bound by any consensual or negotiated surrender,
cancellation or termination of the Lease, in whole or in part, agreed
upon between Landlord and Tenant unless effected unilaterally by Tenant
pursuant to the express terms of the Lease.
Notwithstanding the foregoing, Tenant reserves its right to any
and all claims or causes of action (i) against such prior landlord for prior
losses or damages and (ii) against the successor landlord for all losses or
damages arising from and after the date that such successor landlord takes title
to the Property.
5. Certain Acknowledgments and Agreements by Tenant. (a) Tenant
------------------------------------------------
has notice that the Lease and the rents and all other sums due thereunder have
been assigned to Trustee as security for the notes secured by the Security
Instruments. In the event Trustee notifies Tenant of the occurrence of a de-
-3-
fault under the Security Instruments and demands that Tenant pay its rents and
all other sums due or to become due under the Lease directly to Trustee, Tenant
shall honor such demand and pay its rent and all other sums due under the Lease
directly to Trustee or as otherwise authorized in writing by Trustee. Landlord
irrevocably authorizes Tenant to make the foregoing payments to Trustee upon
such notice and demand.
(b) Tenant shall send a copy of any and all notices or
statements under the Lease to Trustee at the same time such notices or
statements are sent to Landlord.
(c) This Agreement satisfies any and all conditions or
requirements in the Lease relating to the granting of a non-disturbance
agreement.
6. Trustee to Receive Default Notices. Tenant shall notify
----------------------------------
Trustee of any default by Landlord under the Lease which would entitle Tenant to
cancel the Lease, and agrees that, notwithstanding any provisions of the Lease
to the contrary, no notice of cancellation thereof shall be effective unless
Trustee shall have received notice of default giving rise to such cancellation
and shall have failed within sixty (60) days after receipt of such notice to
cure such default or, if such default cannot be cured within sixty (60) days,
shall have failed within sixty (60) days after receipt of such notice to
commence and thereafter diligently pursue any action necessary to cure such
default.
7. Estoppel. Tenant hereby certifies and represents to Trustee
--------
that as of the date of this Agreement:
(a) the Lease is in full force and effect;
(b) all requirements for the commencement and validity of the
Lease have been satisfied and there are no unfulfilled conditions to
Tenant's obligations under the Lease;
(c) Tenant is not in default under the Lease and has not
received any uncured notice of any default by Tenant under the Lease;
to the best of Tenant's knowledge, Landlord is not in default under the
Lease; no act, event or condition has occurred which with notice or the
lapse of time, or both, would constitute a default by Tenant or
Landlord under the Lease; no claim by Tenant of any nature exists
against Landlord under the Lease; and all obligations of Landlord have
been fully performed;
(d) there are no defenses, counterclaims or setoffs against
rents or charges due or which may become due under the Lease;
(e) none of the rent which Tenant is required to pay under the
Lease has been prepaid, or will in the future be prepaid, more than one
(1) month in advance;
(f) Tenant has no right or option contained in the Lease or in
any other document to purchase all or any portion of the Leased
Premises;
(g) the Lease has not been modified or amended and constitutes
the entire agreement between Landlord and Tenant relating to the Leased
Premises;
-4-
(h) Tenant has not assigned, mortgaged, sublet, encumbered,
conveyed or otherwise transferred any or all of its interest under the
Lease; and
(i) Tenant has full authority to enter into this Agreement,
which has been duly authorized by all necessary action.
8. Notices. All notices or other written communications
-------
hereunder shall be deemed to have been properly given (i) upon delivery, if
delivered in person with receipt acknowledged by the recipient thereof, (ii) one
(1) Business Day (hereinafter defined) after having been deposited for overnight
delivery with any reputable overnight courier service, or (iii) three (3)
Business Days after having been deposited in any post office or mail depository
regularly maintained by the United States Postal Service and sent by registered
or certified mail, postage prepaid, return receipt requested, addressed to the
receiving party at its address set forth above or addressed as such party may
from time to time designate by written notice to the other parties. For purposes
of this Section 8, the term "Business Day" shall mean any day other than
---------
Saturday, Sunday or any other day on which banks are required or authorized to
close in New York, New York. Either party by notice to the other may designate
additional or different addresses for subsequent notices or communications.
9. Successors. The obligations and rights of the parties
----------
pursuant to this Agreement shall bind and inure to the benefit of the
successors, assigns, heirs and legal representatives of the respective parties;
provided, however, that in the event of the assignment or transfer of the
- -------- -------
interest of Trustee, all obligations and liabilities of Trustee under this
Agreement shall terminate, and thereupon all such obligations and liabilities
shall be the responsibility of the party to whom Trustee's interest is assigned
or transferred; and provided, further, that the interest of Tenant under this
-------- -------
Agreement may not be assigned or transferred without the prior written consent
of Trustee. In addition, Tenant acknowledges that all references herein to
Landlord shall mean the owner of the landlord's interest in the Lease, even if
said owner shall be different from the Landlord named in the Recitals.
10. Duplicate Original; Counterparts. This Agreement may be
--------------------------------
executed in any number of duplicate originals and each duplicate original shall
be deemed to be an original. This Agreement may be executed in several
counterparts, each of which counterparts shall be deemed an original instrument
and all of which together shall constitute a single Agreement.
11. Limitation of Trustee's Liability. (a) Trustee shall have
---------------------------------
no obligations nor incur any liability with respect to any warranties of any
nature whatsoever, whether pursuant to the Lease or otherwise, including,
without limitation, any warranties respecting use, compliance with zoning,
Landlord's title, Landlord's authority, habitability, fitness for purpose or
possession.
(b) In the event that Trustee shall acquire title to the Leased
Premises or the Property, Trustee shall have no obligation, nor incur any
liability, beyond Trustee's then equity interest, if any, in the Leased
Premises, and Tenant shall look exclusively to such equity interest of Trustee,
if any, in the Leased Premises for the payment and discharge of any obligations
imposed upon Trustee hereunder or under the Lease, and Trustee is hereby
released and relieved of any other obligations hereunder and under the Lease.
12. Modification in Writing. This Agreement may not be modified
-----------------------
except by an agreement in writing signed by the parties hereto or their
respective successors in interest.
-5-
13. Lien of Security Instruments. Nothing contained in this
----------------------------
Agreement shall in any way impair or affect the lien created by the Security
Instruments or the provisions thereof.
14. Compliance with Lease. Tenant agrees that in the event
---------------------
there is any inconsistency between the terms and provisions hereof and the terms
and provisions of the Lease, the terms and provisions hereof shall be
controlling.
15. Governing Law; Severability. This Agreement shall be
---------------------------
governed by the laws of the State of [ ]. If any term of this Agreement or the
application thereof to any person or circumstances shall to any extent be
invalid or unenforceable, the remainder of this Agreement or the application of
such terms to any person or circumstances other than those as to which it is
invalid or unenforceable shall not be affected thereby, and each term of this
Agreement shall be valid and enforceable to the fullest extent permitted by law.
16. Further Actions. Tenant agrees at its own expense to
---------------
execute and deliver, at any time and from time to time upon the request of
Trustee or any Acquiring Party, such documents and instruments (in recordable
form, if requested) as may be necessary or appropriate, in the opinion of
Trustee or any Acquiring Party, to fully implement or to further evidence the
understandings and agreements contained in this Agreement. Moreover, Tenant
hereby irrevocably appoints and constitutes Trustee or any Acquiring Party as
its true and lawful attorney-in-fact to execute and deliver any such documents
or instruments which may be necessary or appropriate, in the opinion of Trustee
or any Acquiring Party, to implement or further evidence such understandings and
agreements and which Tenant, after thirty (30) days' notice from Trustee or any
Acquiring Party, has failed to execute and deliver.
IN WITNESS WHEREOF, Trustee and Tenant have duly executed this
Agreement as of the date first above written.
___________________________________________,
as Trustee
By: ______________________________________
Name:
Title:
___________________________________________,
as Tenant
By: ______________________________________
Name:
Title:
The undersigned, as the Landlord named in the Recitals, having
duly executed this Agreement as of the date first written above, and as
mortgagor, pledgor, assignor or debtor under the Security Instruments, hereby
accepts and agrees for itself and its successors and assigns, (i) to be bound by
the provisions of Section 5 hereof, (ii) that nothing contained in the foregoing
Agreement (x) shall in any way be deemed to constitute a waiver by Trustee of
any of its rights or remedies under the Security Instruments or (y) shall in any
way be deemed to release Landlord from its obligations to comply with the terms,
provisions, conditions, covenants and agreements set forth in the Security
Instruments and (iii) that the provisions of the Security Instruments remain in
full force and effect and must be complied with by Landlord.
________________________________, a
________________________________
By: ______________________________________
Name:
Title:
ACKNOWLEDGMENT
State of ____________)
)ss.:
County of ___________)
[Local counsel to provide appropriate acknowledgment]
SCHEDULE A to EXHIBIT 1
-----------------------
Description of Real Property
----------------------------