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Exhibit 4.48
[LOUISIANA]
MORTGAGE, ASSIGNMENT OF LEASES AND RENTS,
BY
JALOU EUNICE, LLC
Mortgagor,
TO
WELLS FARGO BANK, NATIONAL ASSOCIATION,
as Trustee,
Mortgagee
Securing Principal Indebtedness of $148,000,000
Dated as of March 2, 2005
Relating to Premises located in:
St. Landry Parish, Louisiana
After recording, please return to:
Milbank, Tweed, Hadley & McCloy, LLP
TABLE OF CONTENTS
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MORTGAGE, ASSIGNMENT OF LEASES AND
RENTS, SECURITY
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 March , 2005, made by JALOU EUNICE, LLC, a Louisiana limited liability company having an office at 3747 Highway 190, Eunice, Louisiana 70535, as mortgagor, assignor and debtor (in such capacities and together with any successors in such capacities, the “ Mortgagor ”), in favor of WELLS FARGO BANK, NATIONAL ASSOCIATION, a national banking association having an office at 213 Court Street, Suite 703, Middletown, CT 06457, in its capacity as trustee pursuant to the Indenture (as hereinafter defined), as mortgagee, assignee and secured party (in such capacities and together with any successors in such capacities, the “ Mortgagee ”).
R E C I T A L S :
A. Gameco, Inc. n/k/a Jacobs Entertainment, Inc. (the “ Issuer ”), certain of its Subsidiaries (as hereinafter defined), the Mortgagor and the Mortgagee have, in connection with the execution and delivery of this Mortgage, entered into that certain Indenture, dated as of February 8, 2002, as supplemented by the First Supplemental Indenture, dated as of February 22, 2002, the Second Supplemental Indenture, dated as of June 14, 2002, the Third Supplemental Indenture, dated as of June 4, 2003, the Fourth Supplemental Indenture, dated as of the date hereof, and the Fifth Supplemental Indenture, dated as of the date hereof (collectively, as amended, amended and restated, supplemented, or otherwise modified from time to time, the “ Indenture ”), pursuant to which the Issuer has issued, from time to time, its 11 7 / 8 % Senior Secured Notes due 2009 (the “ Senior Secured Notes ”) in the aggregate principal amount of $148,000,000. It is contemplated that the Issuer may, after the date hereof, issue Additional Notes (as defined in the Indenture) and Exchange Notes (as defined in the Indenture); the Exchange Notes, together with the Additional Notes and the Senior Secured Notes, the “ Notes ”), in each case, pursuant to the provisions of the Indenture.B. The Issuer owns, directly or through its Subsidiaries, all of the issued and outstanding shares of the Mortgagor.C. The Mortgagor has, pursuant to the Indenture, among other things, unconditionally guaranteed (the “ Guarantee ”) the obligations of the Issuer under the Indenture and the Notes.D. The Mortgagor will receive substantial benefits from the execution and delivery of, and the performance of the obligations under, the Indenture and the Notes, and is therefore willing to enter into this Mortgage.E. The Mortgagor is or will be the legal owner of the Mortgaged Property (as hereinafter defined).F. This Mortgage is given by the Mortgagor in favor of the Mortgagee for its benefit and for the benefit of the Holders of the Notes (collectively, the “ Secured Parties ”) to secure the payment and performance of all of the Secured Obligations (as hereinafter defined).
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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 IDEFINITIONS AND INTERPRETATIONSECTION 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,
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repair or similar services regarding the Mortgaged Property, (iii) refuse removal or sewage service regarding the Mortgaged Property, (iv) rentals of equipment, if any, used in the operation by or on behalf of Mortgagor regarding the Mortgaged Property, and/or (v) parking or similar services or rights regarding the Mortgaged Property), refunds, liens, security interests, guarantees, remedies and claims of every kind, nature or character relating thereto.
“ Default Rate ” shall mean the rate per annum equal to the highest rate then payable under the Indenture.
“ Destruction ” shall mean any and all damage to, or loss or destruction of, the Premises or any part thereof.
“ Environmental Law ” shall mean any applicable federal, state, local or municipal statute, law, rule, regulation, ordinance, code, policy or rule of common law and any judicial or administrative interpretation thereof, including any judicial or administrative order, consent decree or judgment binding on the Mortgagor, relating to pollution or protection of the environment, or health or safety including, without limitation, any relating to the release or threatened release of any Hazardous Materials.
“ Event of Default ” shall have the meaning assigned to such term in the Indenture.
“ Fixture ” shall mean all machinery, apparatus, equipment, fittings, fixtures, improvements and articles of personal property of every kind, description and nature whatsoever now or hereafter attached or affixed to the Land or any other Improvement or used in connection with the use and enjoyment of the Land or any other Improvement or the maintenance or preservation thereof, which by the nature of their location thereon or attachment thereto are fixtures under the UCC or any other applicable law including, without limitation, all utility systems, fire sprinkler and security systems, drainage facilities, lighting facilities, all water, sanitary and storm sewer, drainage, electricity, steam, gas, telephone and other utility equipment and facilities, pipes, fittings and other items of every kind and description now or hereafter attached to or located on the Land which by the nature of their location thereon or attachment thereto are real property under applicable law, HVAC equipment, boilers, electronic data processing, telecommunications or computer equipment, refrigeration, electronic monitoring, water or lighting systems, power, sanitation, waste removal, elevators, maintenance or other systems or equipment and all additions thereto and betterments, renewals, substitutions and replacements thereof.
“ Governmental Authority ” shall mean any federal, state, local, foreign or other governmental, quasi-governmental or administrative (including self-regulatory) body, instrumentality, department, agency, authority, board, bureau, commission, office of any nature whatsoever or other subdivision thereof, or any court, tribunal, administrative hearing body, arbitration panel or other similar dispute-resolving body, whether now or hereafter in existence, or any officer or official thereof, having jurisdiction over the Mortgagor or the Mortgaged Property or any portion thereof.
“ Guarantee ” shall have the meaning assigned to such term in Recital C hereof.
“ Guarantors ” shall have the meaning assigned to such term in the Indenture.
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“ Hazardous Materials ” shall mean any substance, chemical, material, pollutant, waste, contaminant or constituent, which is subject to regulation under or could give rise to liability under any Environmental Law.
“ Holder ” shall have the meaning assigned to such term in the Indenture.
“ Improvements ” shall mean all buildings, structures and other improvements of every kind or description and any and all Alterations now or hereafter located, attached or erected on the Land including, without limitation, (i) all Fixtures, (ii) all attachments, railroad tracks, foundations, sidewalks, drives, roads, curbs, streets, ways, alleys, passages, passageways, sewer rights, parking areas, driveways, fences and walls and (iii) all materials now or hereafter located on the Land intended for the construction, reconstruction, repair, replacement, alteration, addition or improvement of or to such buildings, Fixtures, structures and improvements, all of which materials shall be deemed to be part of the Improvements immediately upon delivery thereof on the Land and to be part of the Improvements immediately upon their incorporation therein.
“ Indemnified Liabilities ” shall have the meaning assigned to such term in Section 14.6(i) hereof.
“ Indemnitees ” shall have the meaning assigned to such term in Section 14.6(i) hereof.
“ Indenture ” shall have the meaning assigned to such term in Recital A hereof.
“ Insurance Policies ” means the insurance policies and coverages required to be maintained by the Mortgagor with respect to the Mortgaged Property pursuant to Section 4.19(b) of the Indenture and all renewals and extensions thereof.
“ Insurance Requirements ” means, collectively, all provisions of the Insurance Policies, all requirements of the issuer of any of the Insurance Policies and all orders, rules, regulations and any other requirements of the National Board of Fire Underwriters (or any other body exercising similar functions) binding upon the Mortgagor and applicable to the Mortgaged Property or any use or condition thereof.
“ Issuer ” shall have the meaning assigned to such term in Recital A hereof.
“ Land ” shall mean those certain tracts or parcels of land described in Schedule A annexed to this Mortgage, together with all of the Mortgagor’s reversionary rights therein and all of the Mortgagor’s rights in and to any and all easements, rights-of-way, strips and gores of land, drives, roads, curbs, streets, ways, alleys, passages, passage ways, sewer rights, waters, water courses, water rights, mineral, gas and oil rights, and all power, air, light and other rights, estates, titles, interests, privileges, liberties, servitudes, licenses, tenements, hereditaments and appurtenances whatsoever, in any way belonging, relating or appertaining thereto, or any part thereof, or which hereafter shall in any way belong, relate or be appurtenant thereto.
“ Landlord ” shall mean any landlord, lessor, franchisor, licensor or grantor, as applicable.
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“ Leases ” shall mean, collectively, any and all right, title and interests of the Mortgagor, as Landlord, in all leases and subleases of space, tenancies, franchise agreements, licenses, occupancy, rental, access or concession agreements and any other agreements pursuant to which any Person is granted a possessory interest in or right to use or occupy all or any portion of the Mortgaged Property (including, without limitation, all of the Mortgagor’s rights to enforce all such leases, subleases, tenancies or other agreements and to receive and enforce any rights that the Mortgagor may have to collect Rents thereunder), in each case whether now existing or hereafter entered into, whether or not of record, relating in any manner to the Premises or the use or occupancy thereof and any and all amendments, modifications, supplements, replacements, extensions, renewals and/or guarantees, if any thereof, whether now in effect or hereafter coming into effect.
“ Lien ” shall have the meaning assigned to such term in the Indenture.
“ Mortgage ” shall have the meaning assigned to such term in the Preamble hereof.
“ Mortgaged Property ” shall have the meaning assigned to such term in Section 2.1 hereof.
“ Mortgagee ” shall have the meaning assigned to such term in the Preamble hereof.
“ Mortgagor ” shall have the meaning assigned to such term in the Preamble hereof.
“ Mortgagor’s Interest ” shall have the meaning assigned to such term in Section 2.2 hereof.
“ Net Loss Proceeds ” shall have the meaning assigned to such term in the Indenture.
“ Notes ” shall have the meaning assigned to such term in Recital A hereof.
“ Officers’ Certificate ” shall have the meaning assigned to such term in the Indenture.
“ Permit ” shall mean any and all permits, certificates, approvals, authorizations, consents, licenses, variances, franchises or other instruments, however characterized, of any Governmental Authority (or any Person acting on behalf of a Governmental Authority) now or hereafter acquired or held, together with all amendments, modifications, extensions, renewals and replacements of any thereof issued or in any way furnished in connection with the Mortgaged Property including, without limitation, building permits, certificates of occupancy, environmental certificates, industrial permits or licenses and certificates of operation.
“ Permitted Collateral Liens ” shall have the meaning assigned to such term in Section 4.6 hereof.
“ Permitted Liens ” shall have the meaning assigned to such term in the Indenture.
“ Person ” shall have the meaning assigned to such term in the Indenture.
“ Premises ” shall mean, collectively, the Land and the Improvements.
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“ 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
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against, or reimbursement for, sums paid and costs and expenses incurred by the Mortgagor under any Lease or otherwise, and any award in the event of the bankruptcy of any Tenant under or guarantor of a Lease.
“ Requirements of Law ” shall mean, collectively, any and all requirements of any Governmental Authority including, without limitation, any and all orders, decrees, determinations, laws, treaties, ordinances, rules, regulations or similar statutes or case law.
“ Secured Obligations ” shall mean all obligations (whether or not constituting future advances, obligatory or otherwise) of the Issuer and any and all of the Guarantors from time to time arising under or in respect of this Mortgage, the Indenture, the Notes and the other Collateral Documents (including, without limitation, the obligations to pay principal, interest and all other charges, fees, expenses, commissions, reimbursements, premiums, indemnities and other payments related to or in respect of the obligations contained in this Mortgage, the Indenture, the Notes and the other Collateral Documents), in each case whether (i) such obligations are direct or indirect, secured or unsecured, joint or several, absolute or contingent, due or to become due whether at stated maturity, by acceleration or otherwise, (ii) arising in the regular course of business or otherwise, (iii) for payment or performance and/or (iv) now existing or hereafter arising (including, without limitation, interest and other obligations arising or accruing after the commencement of any bankruptcy, insolvency, reorganization or similar proceeding with respect to the Issuer, any Guarantor or any other Person, or which would have arisen or accrued but for the commencement of such proceeding, even if such obligation or the claim therefor is not enforceable or allowable in such proceeding).
“ Secured Parties ” shall have the meaning assigned to such term in Recital F hereof.
“ Senior Secured Notes ” shall have the meaning assigned to such term in Recital A hereof.
“ Subordination Agreement ” shall mean a subordination, nondisturbance and attornment agreement substantially in the form of Exhibit 1 annexed to this Mortgage.
“ Subsidiaries ” shall have the meaning assigned to such term in the Indenture.
“ Taking ” shall mean any taking of the Mortgaged Property or any part thereof, in or by condemnation or other eminent domain proceedings pursuant to any law, general or special, or by reason of the temporary requisition of the use or occupancy of the Mortgaged Property or any part thereof, by any Governmental Authority, civil or military.
“ Tax Escrow Fund ” shall have the meaning assigned to such term in Section 7.2 hereof.
“ Tenant ” shall mean any tenant, subtenant, lessee, sublessee, franchisee, licensee, grantee or obligee, as applicable.
“ UCC ” shall mean the Uniform Commercial Code as in effect on the date hereof in the jurisdiction in which the Premises are located; provided , however , that if by reason of mandatory provisions of law, the perfection or the effect of perfection or non-perfection of the security interest in any item or portion of the Mortgaged Property is governed by the Uniform Commercial Code as in effect in a jurisdiction
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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 IIGRANTS AND SECURED OBLIGATIONSSECTION 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;
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(iii) Leases;(iv) Rents;(v) Permits;(vi) Contracts;(vii) Records; and(viii) Proceeds.Notwithstanding the foregoing provisions of this Section 2.1 , Mortgaged Property shall not include a grant of any of the Mortgagor’s right, title or interest in (i) any Contract to which the Mortgagor is a party or 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;
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(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.
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ARTICLE IIIREPRESENTATIONS AND WARRANTIES OF MORTGAGORSECTION 3.1 Authority and Validity .The Mortgagor represents and warrants that as of the date hereof:(i) it is duly organized or formed, validly existing and, if applicable, in good standing under the laws of the jurisdiction of its organization;(ii) it is duly qualified to transact business and is in good standing in the state in which the Mortgaged Property is located;(iii) it has full corporate or other organizational power and lawful authority to execute and deliver this Mortgage and to mortgage and grant a Lien on and security interest in the Mortgaged Property and otherwise assign the Mortgagor’s Interest and otherwise perform its obligations as contemplated herein, and all corporate and governmental actions, consents, authorizations and approvals necessary or required therefor have been duly and effectively taken or obtained; and(iv) this Mortgage is a legal, valid and binding obligation of the Mortgagor, enforceable against the Mortgagor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency or similar laws affecting the enforcement of creditors’ rights generally or by equitable principles relating to enforceability.SECTION 3.2 Warranty of Title . The Mortgagor represents and warrants that:(i) it has good fee simple title to the Premises and the Landlord’s interest and estate under or in respect of the Leases and good title to the interest it purports to own or hold in and to each of the Permits, the Contracts and the Records, in each case subject to no Liens, except for Permitted Collateral Liens;(ii) it has good title to the interest it purports to own or hold in and to all rights and appurtenances to or that constitute a portion of the Mortgaged Property, except for Permitted Collateral Liens;(iii) it is in compliance with each term, condition and provision of any obligation of the Mortgagor which is secured by the Mortgaged Property or the noncompliance with which would result in a Property Material Adverse Effect; and(iv) this Mortgage creates and constitutes a valid and enforceable first priority Lien on the Mortgaged Property subject to Permitted Collateral Liens, and, to the extent any of the Mortgaged Property shall consist of Fixtures, a first priority security interest in the Fixtures, which first priority Lien and first priority security interest are subject only to Permitted Collateral Liens.
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SECTION 3.3 Condition of Mortgaged Property . The Mortgagor represents and warrants that:(i) there has been issued and there remains in full force and effect subject to no revocation, suspension, forfeiture or modification, each and every Permit necessary for the present use, operation and occupancy of the Premises by the Mortgagor and its Tenants and the conduct of their respective businesses and all required zoning, building code, land use, environmental and other similar Permits, except where the failure to be so issued and to be in full force and effect would not result in a Property Material Adverse Effect;(ii) the Premises and the present and contemplated use and occupancy thereof comply with all applicable zoning ordinances, building codes, land use laws, setback or other development and/or use requirements of Governmental Authorities except where such noncompliance would not result in a Property Material Adverse Effect;(iii) the Premises are served by all utilities (including, without limitation, water and sewer systems) necessary for the present use thereof, and all utility services are provided by public or private utilities and the Premises have accepted or are equipped to accept such utility services and the Mortgagor has not received notice of termination of such utility service, except where the failure to be so served would not result in a Property Material Adverse Effect;(iv) the Mortgagor has access to the Premises from roads sufficient to allow the Mortgagor and its Tenants and invitees to conduct their respective businesses at the Premises in accordance with sound commercial practices and the Mortgagor has not received notice of termination of such access, except where the failure to have such access would not result in a Property Material Adverse Effect;(v) the Mortgagor has not received notice of any Taking or the commencement or pendency of any action or proceeding therefor, other than such Takings as would not result in a Property Material Adverse Effect;(vi) there has not occurred any Destruction of the Premises or any portion thereof as a result of any fire or other casualty that, as of the date hereof, has not been repaired in all material respects, other than such Destruction as would not have a Property Material Adverse Effect;(vii) there are no disputes regarding boundary lines, location, encroachments or possession of any portions of the Mortgaged Property and no state of facts exists which could give rise to any such claim other than such disputes as would not result in a Property Material Adverse Effect;(viii) all liquid and solid waste disposal, septic and sewer systems located on the Premises are in a good and safe condition and repair and in compliance with all Requirements of Law, except where the failure to so comply would not result in a Property Material Adverse Effect;(ix) no portion of the Premises is located in an area identified by the Federal Emergency Management Agency or any successor thereto as an area having special flood hazards pursuant to
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the Flood Insurance Acts or, if any portion of the Premises is located within such area, the Mortgagor has obtained the insurance prescribed in Article VIII hereof;(x) the Premises are assessed for real estate tax purposes as one or more wholly independent tax lot or lots, separate from any adjoining land or improvements not constituting a portion of such lot or lots, and no other land or improvements are assessed and taxed together with the Premises or any portion thereof, other than such cases where the failure to be so assessed would not result in a Property Material Adverse Effect; and(xi) there are no options or rights of first refusal to purchase or acquire all or any portion of the Mortgaged Property, other than such options or rights of first refusal as would not result in a Property Material Adverse Effect.SECTION 3.4 Leases . The Mortgagor represents and warrants that as of the date hereof:(i) the Leases identified in Schedule C attached hereto are the only Leases in existence on the date hereof relating to the Premises;(ii) true copies of such Leases have been previously delivered to the Mortgagee and there are no agreements with any Tenant under such Leases other than those agreements expressly set forth therein;(iii) the Mortgagor is the sole owner of all of the Mortgagor’s Interest in such Leases;(iv) each of such Leases is in full force and effect, constitutes a legal, valid and binding obligation of the Mortgagor and the applicable Tenant thereunder, and is enforceable against the Mortgagor and such Tenant in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency or similar laws affecting the enforcement of creditors’ rights generally or by equitable principles relating to enforceability;(v) there is no default under any of such Leases and there is existing no condition which with the giving of notice or passage of time or both would cause a default thereunder;(vi) all Rents due under such Leases have been paid in full;(vii) none of the Rents reserved under such Leases have been assigned or otherwise pledged or hypothecated except in favor of the Mortgagee pursuant to the provisions hereof;(viii) none of the Rents (other than any security deposit collected in accordance with the provisions of the applicable Lease) have been collected for more than one (1) month in advance;(ix) there exist no offsets or defenses to the payment of any portion of the Rents and the Mortgagor owes no monetary obligation to any Tenant under any such Lease;(x) the Mortgagor has received no notice from any Tenant challenging the validity or enforceability of any such Lease;
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(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
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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 IVCERTAIN COVENANTS OF MORTGAGORSECTION 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
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and title thereto, except against Permitted Collateral Liens (other than the Lien created by this Mortgage);(ii) (A) comply, in all material respects, with each of the terms, conditions and provisions of any obligation of the Mortgagor which is secured by the Mortgaged Property, except where the failure to so comply would not result in a Property Material Adverse Effect, or the noncompliance with which may result in the imposition of a Lien on the Mortgaged Property, (B) forever warrant and defend to the Mortgagee the Lien and security interests created and evidenced hereby and the validity and priority hereof in any action or proceeding against the claims of any and all Persons whomsoever affecting or purporting to affect the Mortgaged Property or any of the rights of the Mortgagee hereunder, except against Permitted Collateral Liens (other than the Lien of this Mortgage), and (C) maintain a valid and enforceable first priority Lien, except for Permitted Collateral Liens (other than the Lien of this Mortgage) on the Mortgaged Property and, to the extent any of the Mortgaged Property shall consist of Fixtures, a first priority security interest in the Mortgaged Property, which first priority Lien and security interest shall be subject only to Permitted Collateral Liens; and(iii) immediately upon obtaining knowledge of the pendency of any proceedings for the eviction of the Mortgagor from the Mortgaged Property or any part thereof by paramount title or otherwise questioning the Mortgagor’s right, title and interest in, to and under the Mortgaged Property as warranted in this Mortgage, or of any condition that could give rise to any such proceedings, notify the Mortgagee thereof. The Mortgagee may participate in such proceedings and the Mortgagor will deliver or cause to be delivered to the Mortgagee all instruments requested by the Mortgagee to permit such participation. In any such proceedings, the Mortgagee may be represented by counsel reasonably satisfactory to the Mortgagee at the reasonable expense of the Mortgagor. If, upon the resolution of such proceedings, the Mortgagor shall suffer a loss of the Mortgaged Property or any part thereof or interest therein and title insurance proceeds shall be payable in connection therewith, such proceeds are hereby assigned to and shall be paid to the Mortgagee for deposit into the Collateral Account and shall be applied in the manner applicable to Net Loss Proceeds in accordance with the provisions of Sections 4.16, 10.05(c) and 11.02 of the Indenture.SECTION 4.3 Maintenance and Use of Mortgaged Property; Alterations .(i) Maintenance . The Mortgagor shall cause the representations and warranties set forth in Section 3.3 hereof to continue to be true in each and every respect and shall pay or cause to be paid when due all Charges, costs and expenses relating thereto, other than such Charges being contested in accordance with Section 9.1 hereof.(ii) Maintenance of Premises . The Mortgagor shall not commit or suffer any waste on the Premises. The Mortgagor shall, at all times, maintain the Premises in good working order, condition and repair, reasonable wear and tear excepted, and shall use commercially reasonable efforts to make or cause to be made all repairs, structural or nonstructural, which are necessary or appropriate in the conduct of the Mortgagor’s business. The Mortgagor shall not, except as permitted in Section 4.3(iii) hereof, alter the occupancy or use of all or any portion of the Premises without the prior written consent of the Mortgagee, which consent shall not be unreasonably withheld. Except to the extent permitted pursuant to the provisions of Section 4.3(iii) hereof, the Mortgagor shall not remove, demolish or alter the structural character
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of any Improvement now or hereafter erected upon all or any portion of the Premises, or permit any such removal, demolition or alteration, without the prior written consent of the Mortgagee, which consent shall not be unreasonably withheld.(iii) Alterations . The Mortgagor shall not, without the prior written consent of the Mortgagee, which consent shall not be unreasonably withheld, make any Alteration to the Premises except as permitted by Sections 10.04 and 10.06 of the Indenture. Whether or not the making of any Alteration shall require the consent of the Mortgagee pursuant to the immediately preceding sentence, the Mortgagor shall (A) complete each Alteration promptly, in a good and workmanlike manner and in compliance, in all material respects, with all applicable local laws, ordinances and requirements and (B) pay when due all claims for labor performed and materials furnished in connection with such Alteration, unless contested in accordance with the provisions of Article IX hereof.(iv) Permits . The Mortgagor shall maintain, or cause to be maintained, in full force and effect all Permits contemplated by and subject to Section 3.3(i) hereof. Unless and to the extent contested by the Mortgagor in accordance with the provisions of Article IX hereof, the Mortgagor shall comply, in all material respects, with all requirements set forth in the Permits and all Requirements of Law applicable to all or any portion of the Mortgaged Property or the condition, use or occupancy of all or any portion thereof or any recorded deed of restriction, declaration, covenant running with the land or otherwise, now or hereafter in force, subject to the provisions of Section 3.3 hereof.(v) Zoning . The Mortgagor shall not initiate, join in, or consent to any change in the zoning or any other permitted use classification of the Premises without the prior written consent of the Mortgagee, which consent shall not be unreasonably withheld.SECTION 4.4 Notices Regarding Certain Defaults . The Mortgagor shall, promptly upon receipt of any written notice regarding (i) any default by the Mortgagor relating to the Mortgaged Property or any portion thereof or (ii) the failure to discharge any of Mortgagor’s obligations with respect to the Mortgaged Property or any portion thereof described herein, furnish a copy of such notice to the Mortgagee.SECTION 4.5 Access to Mortgaged Property, Books and Records; Other Information . Upon request to the Mortgagor, the Mortgagee, its agents, accountants and attorneys shall have full and free access to visit and inspect, as applicable, during normal business hours and such other reasonable time as may be requested by the Mortgagee, all of the Mortgaged Property including, without limitation, all of the books, correspondence and records of the Mortgagor relating thereto. The Mortgagee and its representatives may examine the same, take extracts therefrom and make photocopies thereof. The Mortgagor shall, at any and all times, within a reasonable time after written request by the Mortgagee, furnish or cause to be furnished to the Mortgagee, in such manner and in such detail as may be reasonably requested by the Mortgagee, additional information with respect to the Mortgaged Property.SECTION 4.6 Limitation on Liens; Transfer Restrictions . The Mortgagor may not, without the prior written consent of the Mortgagee, further mortgage, encumber, hypothecate, sell, convey or assign all or any part of the Mortgaged Property or suffer or allow any of the foregoing to occur by operation of law or otherwise; provided , however , that the Mortgagor shall have the right to (1) sell, convey or assign all or any portion of the Mortgaged Property in accordance with the provisions of the Indenture and
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(2) suffer to exist the following Liens in respect of the Mortgaged Property: (i) Prior Liens (but not extensions, amendments, supplements or replacements of Prior Liens unless (A) extended, amended, supplemented or replaced in a manner permitted by the Indenture or (B) consented to by the Mortgagee which consent shall not be unreasonably withheld), (ii) the Lien and security interest created by this Mortgage or any other Collateral Document, (iii) Contested Liens, (iv) Liens described in clause (9) of the definition of Permitted Liens ( provided , however , that such Liens shall not extend to or cover any Mortgaged Property other than equipment subject to Capital Leases Obligations or Purchase Money Obligations incurred in accordance with the provisions of the Indenture) or clause (4) of the definition of Permitted Liens, and (v) Leases to the extent permitted pursuant to the provisions of Article V hereof (the Liens described in clauses (i) through (v) of this sentence, collectively, “ Permitted Collateral Liens ”).SECTION 4.7 Environmental .(i) Hazardous Materials . Except where the failure to do so would not result in a Property Material Adverse Effect, the Mortgagor shall (A) comply with any and all present and future Environmental Laws applicable to the Mortgaged Property, (B) not release, store, treat, handle, generate, discharge or dispose of any Hazardous Materials at, on, under or from the Mortgaged Property in violation of or in a manner that could result in any material liability under any present and future Environmental Law and (C) take all necessary steps to initiate and expeditiously complete all remedial, corrective and other action to eliminate any such effect. In the event the Mortgagor fails to comply with the covenants in the preceding sentence, the Mortgagee | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
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