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HomeMy WebLinkAbout973190This instrument prepared by and •-ret urn original Mortgage -to-- (see p Winston Strawn LLP 214 North Tryon Street, 22n Floor Charlotte, North Carolina 28202 Attention: Timothy R. Hicks, Esquire THIS INSTRUMENT IS TO BE INDEXED AS BOTH A MORTGAGE AND A FIXTURE FILING CI THIS INSTRUMENT SECURES A LINE OF CREDIT IUC htglobg a STATE OF WYOMING COUNTY OF LINCOLN MORTGAGE, ASSIGNMENT OF LEASES AND RENTS, SECURITY AGREEMENT AND FIXTURE FILING THIS MORTGAGE, ASSIGNMENT OF LEASES AND RENTS, SECURITY AGREEMENT AND FIXTURE FILING (as amended, restated, replaced, renewed, extended, supplemented or otherwise modified from time to time, this "Mortgage made as of the 28` day of February, 2011, from PILOT TRAVEL CENTERS LLC, a Delaware limited liability company (the "Mortgagor as mortgagor, grantor, debtor and borrower, whose address is 5508 Lonas Road, Knoxville, Tennessee 37909, Attention: Kristin K. Seabrook, Esq., General Counsel, in favor of BANK OF AMERICA, N.A., a national banking association, in its capacity as Administrative Agent under the Credit Agreement referred to below, as mortgagee, beneficiary, secured party and lender, for the benefit of the Secured Parties (as defined in the Credit Agreement) (in such capacity, the "Mortgagee whose address is 231 South LaSalle Street, Mail Code: IL1- 231- 10 -41, Chicago, Illinois 60697, Attention: Anne M. Zeschke. This Mortgage secures: STATEMENT OF PURPOSE Reference is hereby made to that certain Amended and Restated Credit Agreement dated as of June 30, 2010 (as further amended, restated, replaced, renewed, extended, supplemented or otherwise modified from time to time, the "Credit Agreement by and among the Mortgagor, as borrower, the domestic subsidiaries of the Mortgagor, as guarantors, Bank of America, N.A., in its capacity as administrative agent for the benefit of the Lenders (as hereinafter defined) (in such capacity, the "Administrative Agent in its capacity as swingline lender, and in its capacity as issuing lender, and the banks and other financial institutions who are or may become party thereto, as lenders (the "Lenders (i) all "Credit Party Obligations" under and as defined in the Credit Agreement (all such obligations being hereinafter referred to as the "Credit Agreement. Obligations and (ii) the payment by the Mortgagor of all other sums, with interest thereon, advanced by the Mortgagee to protect the security of this Mortgage (together with the Credit Agreement Obligations, the "Secured Obligations RECEIVED 9/10/2013 at 2:34 PM RECEIVING 973190 BOOK: 820 PAGE: 99 JEANNE WAGNER LINCOLN COUNTY CLERK, KEMMERER, WY 0099 0100 Defined terms used herein, as indicated by the initial capitalization thereof, shall have the meanings ascribed to such terms in the Credit Agreement, or other applicable Credit Document (as defined in the Credit Agreement), unless otherwise provided herein. A condition to the continued extension by the Administrative Agent and the Lenders of certain of the revolving credit facilities provided for in the Credit Agreement and the initial extension by the Administrative Agent and the Lenders of certain of the term loan credit facilities provided for in the Credit Agreement is the execution and delivery by the Mortgagor of this Mortgage, and the grant by the Mortgagor of the Lien and security interest created pursuant hereto, in favor of the Administrative Agent, for its own benefit and for the benefit of the other Secured Parties, as security for the Secured Obligations. The Mortgagor currently receives and will receive a direct benefit from the credit facilities extended under the Credit Agreement, and therefore the Mortgagor has agreed to execute and deliver this Mortgage, and to grant the Lien and security interest created pursuant hereto, in favor of the Administrative Agent, for its own benefit and for the benefit of the other Secured Parties, as security for the Secured Obligations. NOW, THEREFORE, for and in consideration of the sum of Ten Dollars ($10.00), and other good and valuable consideration, the receipt and sufficiency whereof are hereby acknowledged, and in order to secure (a) the Secured Obligations and the repayment of the Secured Obligations, with interest thereon, and all renewals, extensions and modifications thereof; (b) the repayment of any future advances, with interest thereon, made by the Secured Parties or any of them to or for the benefit of the Mortgagor pursuant to Section 1.3 hereof; (c) the payment of all other sums, with interest thereon, advanced in accordance herewith to protect the security of this instrument; and (d) the performance of the covenants and agreements of the Mortgagor contained herein, in the Credit Agreement and in the other Credit Documents, and in consideration of the Lenders' continuing agreements under the Credit Agreement to extend the credit facilities provided for therein to the Mortgagor, the Mortgagor by these presents does hereby (i) give, grant, bargain, sell, alienate, remise, warrant, convey, mortgage, release, confirm, assign, transfer and set over unto the Mortgagee and its successors and assigns, for the benefit of the Secured Parties, all of the Mortgagor's right, title and interest in and to the "Land" (as defined below) and the "Improvements" (as defined below) (the Land and the Improvements, collectively, the "Premises as described below and any real or mixed property referred to below, and (ii) convey and grant a security interest unto the Mortgagee, for the benefit of the Secured Parties, in all of the Mortgagor's right, title and interest in and to the "Equipment the "Proceeds" and any other personal property referred to below. This Mortgage shall secure a maximum aggregate principal amount under the Credit Documents of Four Billion Twenty -Two Million Five Hundred Thousand and No /100 Dollars ($4,022,500,000.00) at any one time. The property and rights (collectively, the "Property subject to this Mortgage are all of the Mortgagor's right, title and interest in and to the following: A. all of the right, title and interest of the Mortgagor in and to the real estate, as more specifically described in Exhibit A attached hereto, together with all of the Mortgagor's rights, title and interest under all easements, rights of way, restrictive covenants, parking agreements, encroachment agreements, licenses, streets, alleys, passages, walkways, strips of land, sewer rights, waters, water courses, water privileges, tenements, hereditaments and other appurtenances and rights, including, but not limited to, air rights, surface rights and subsurface rights relating or appertaining to such real estate (collectively, the "Land B. all of the right, title and interest of the Mortgagor in and to all facilities, buildings, structures, fixtures, improvements and parking areas now or hereafter located on the Land and all replacements thereof and additions thereto (collectively, the "Improvements without limiting the foregoing, the term "Improvements" shall include: all buildings, components of buildings, roads, streets, curbs, gutters, sidewalks and pedestrian ways; all storm drainage, water systems, sewer systems, electrical 2 3 0101 systems, gas systems and other utilities equipment; and all improvements relating to easements appurtenant to the Land and landscaping, whether or not located on the Land, which are necessary or appropriate to fully benefit and serve the Improvements located on the Land; C. all chattels, machinery, fixtures, equipment, furnishings, goods, construction materials and articles of personal property now or hereafter attached to, incorporated in, or located on the Premises or on appurtenant easements and used or usable in connection with any present or future construction, operation or letting of the Property or the activities at any time conducted therein or thereon which are owned by the Mortgagor (collectively, the "Equipment including, but not limited to, any and all types of apparatus, machinery and equipment, heating, venting and air conditioning, lighting, laundry, incinerating and power equipment and machinery, plumbing, refrigerating, trash compacting, cleaning, cooking, smoke detection, fire prevention and fire extinguishing systems, security and access control apparatus, communications apparatus (including antennas, satellite dishes and systems, telecommunications systems, equipment, facilities and devices, televisions and television systems, audio and video systems, equipment, facilities and devices, and computer systems and fixtures and appurtenances thereto), sprinkler systems, gas and electric fixtures, awnings, shades, screens, window shades and blinds, storm doors and windows, appliances, cabinets, ducts and compressors, water heaters, water closets, sinks, dishwashers, disposals, washers, dryers, radiators, ranges, paneling, office equipment and other furnishings, fitness and exercise equipment, rugs, carpets, curtain rods, draperies and linens, mirrors, elevators, escalators, pumps, motors, boilers, engines, conduits, dynamos, refrigerators, freezers, incinerators, trash receptacles, trees, plants, flowers, shrubbery, and all other machinery, equipment, appliances, fittings, furniture, furnishings, chattels and articles of personalty of every kind and nature used in the operation of the Improvements and structures now or hereafter situated on and constituting part of the Property or on appurtenant easements, together with any and all replacements thereof and additions thereto; D. to the extent assignable, all of the right, title and interest of the Mortgagor in and to any unearned insurance premiums and any insurance proceeds realized from or as a result of the Mortgagor's ownership or operation of the Property and any and all awards, including interest thereon, heretofore and hereafter made to the Mortgagor for any taking by eminent domain, or by any proceeding or purchase in lieu thereof, of the whole or any part of the Property, including any awards for changes of grade of streets, which awards are hereby assigned to the Mortgagee (for the benefit of the Secured Parties), who is hereby authorized to collect and receive the proceeds of such awards and to give proper receipts and acquittances therefor and to apply the same to the Secured Obligations, to the extent hereinafter provided (all of the foregoing being referred to herein as the "Proceeds E. to the extent assignable, all of the right, title and interest of the Mortgagor in and to all existing and future leases, subleases, tenancies, licenses, occupancy agreements and other agreements for the use and occupancy of all or any portion of the Property, and any and all extensions, renewals and modifications thereof, whether written or oral and whether for a definite term or month to month, including without limitation (i) any and all cash or securities deposited thereunder to secure performance by the lessees of their obligations thereunder, (ii) the right to receive and collect all rents thereunder, (iii) any options or rights of first refusal thereunder, and (iv) any and all guarantees of the lessee's obligations thereunder (collectively, the "Leases F. all of the right, title and interest of the Mortgagor in and to all earnings, revenues, rents, issues, profits, receipts, reserves, avails, general intangibles, choses in action, proceeds and other income of and from the Property or any portion thereof including, without limitation, all rents and receipts (including, without limitation, minimum rents, additional rents, percentage rents, parking, maintenance and deficiency rents) from, or proceeds payable under or related to, the Leases (together with the items described in Clauses G, H and I below, collectively, the "Rents 0 102 G. to the extent assignable, all of the right, title and interest of the Mortgagor in and to all awards and payments of any kind derived from or relating to any Lease, including, without limitation: (i) claims for the recovery of damages to the Property by proceeds of any policy of insurance or otherwise, or for the abatement of any nuisance existing thereon; (ii) claims for damages resulting from acts of insolvency or bankruptcy or otherwise; (iii) lump sum payments for the cancellation or termination of any Lease, the waiver of any term thereof, or the exercise of any right of first refusal or option to purchase; and (iv) the return of any insurance premiums or ad valorem tax payments made in advance and subsequently refunded; H. to the extent assignable, all of the right, title and interest of the Mortgagor in and to the proceeds of any rental or loss of rents insurance carried by the Mortgagor on the Property; I. to the extent assignable, all of the right, title and interest of the Mortgagor in and to all security deposits and escrow accounts made by any tenant or subtenant under any Lease; J. to the extent assignable, all architectural, engineering and similar plans, specifications, drawings, renderings, profiles, studies, shop drawings, reports, plats, permits, surveys and similar documents relating to the Property; all sewer taps, permits and allocations; and all agreements for utilities, bonds, sureties and the like, relating to the Property or appurtenant facilities erected or to be erected upon or about the Property; K. to the extent assignable, all warranties and guarantees of contractors or subcontractors or of suppliers or manufacturers of equipment or other property incorporated into the Improvements or used with or otherwise constituting part of the fixtures therein; and L. all the property of every kind and description, whether real, personal or mixed, which at any time hereafter, by indenture or indentures supplemental hereto, and by other instruments of transfer, may be expressly conveyed, mortgaged or pledged, delivered, assigned or transferred to the Mortgagee, for the benefit of the Secured Parties, by or on behalf of the Mortgagor, as and for additional or substitute security for the Secured Obligations. TO HAVE AND TO HOLD the Property hereby conveyed or mentioned and intended so to be, unto the Mortgagee, to its own use, forever. This Mortgage is given for the following purposes: (a) to secure the payment of the Secured Obligations, together with interest thereon, due or to become due, which have been advanced by the Secured Parties (or any of them) or which the Secured Parties (or any of them) have agreed to advance pursuant to the Credit Documents; (b) to secure all sums advanced by the Secured Parties (or any of them) to the Mortgagor or expended by the Secured Parties (or any of them) for the Mortgagor's account relating to the Secured Obligations, including but not limited to advances for taxes and insurance, or for the Mortgagor's benefit pursuant to the terms of this Mortgage or any of the other Credit Documents; (c) to secure any and all other obligations or sums due from the Mortgagor pursuant to, and the faithful performance by the Mortgagor of all terms and conditions contained in, this Mortgage and the other Credit Documents hereinafter, together with any and all extensions, modifications and /or renewals of any of the Credit Documents; 4 (d) to secure the payment of all court costs, expenses and costs of whatever kind incident to the collection of any indebtedness secured hereby and the enforcement or protection of the Lien of this conveyance, including reasonable attorney's fees, whether at trial, on appeal or in any bankruptcy proceedings; and (e) to secure any other Secured Obligations not otherwise set forth in (a) -(d) above. 0103 Should the Secured Obligations (other than (a) contingent indemnity obligations not yet due, (b) the obligations owing but not yet due to any Hedging Agreement Provider and (c) the obligations owing but not yet due in connection with any Specified Cash Management Agreement) be indefeasibly paid and performed in full when due and the Commitments terminated, and if the Mortgagor shall keep, perform and observe each of the covenants, agreements and provisions in this Mortgage to be kept, performed and observed by the Mortgagor, then, at such time, this Mortgage and the estate and rights hereby granted shall terminate and be of no further force and effect and the Lien created by this Mortgage shall be released, any and all costs associated with such release to be borne by the Mortgagor. This Mortgage secures, inter alia, present and future advances made by the Secured Parties pursuant to the Credit Documents. The priority of such future advances shall relate back to the date of this Mortgage, or to the earliest later date as required by any Requirement of Law. This Mortgage also secures advances made by the Mortgagee with respect to the Property for the payment of taxes, assessments, maintenance charges, and insurance premiums, costs incurred by the Mortgagee for the protection of the Property or the Lien of this Mortgage, and expenses incurred by the Mortgagee by reason of the occurrence of an Event of Default and the priority of such advances, costs and expenses shall also relate back to the date of this Mortgage, or to such later date as required by any Requirement of Law. ARTICLE I REPRESENTATIONS, WARRANTIES AND COVENANTS OF MORTGAGOR The Mortgagor represents, warrants, and covenants with the Mortgagee and other Secured Parties as follows: SECTION 1.1 Payment and Performance of Secured Obligations. The Mortgagor will pay and perform, or cause to be paid and performed, when due the Secured Obligations. SECTION 1.2 Priority of Lien. This Mortgage is and, prior to the performance and indefeasible payment in full of the Secured Obligations and termination of the Commitments shall remain, a first Lien on all of the Property, subject only to Liens permitted pursuant to the terms of the Credit Agreement. The Mortgagor shall pay or cause to be discharged within ten (10) days after they shall be payable, or shall make adequate provisions for the satisfaction or discharge of, all lawful claims and demands of mechanics, laborers and materialmen (including the posting of a bond sufficient to satisfy or discharge such claims) which, if unpaid, might be a Lien or charge on the Property (or any part thereof) or the income therefrom; provided, that the Mortgagor may contest any such claims or demands in good faith so long as adequate reserves are maintained with respect thereto in accordance with GAAP. Nothing herein contained shall require the Mortgagor to pay any claims for labor, materials or services provided solely for the benefit of any landlord or any other tenant. SECTION 1.3 Future Advances. This Mortgage is given to secure not only existing obligations, but also future advances. It is understood and agreed that this Mortgage covers, inter alia, present and future advances made by the Mortgagee or other Secured Parties or any of them to or for the 5 SECTION 1.5 Insurance. 6 0104 benefit of the Mortgagor pursuant to the Credit Agreement or any other applicable documentation governing or creating a Secured Obligation, and that the Lien of such future advances shall relate back to the date of this Mortgage. At no time shall the aggregate principal amount of the indebtedness under the Credit Documents secured by this Mortgage, not including loans advanced hereunder to protect the security of this Mortgage, exceed Four Billion Twenty -Two Million Five Hundred Thousand and No /100 Dollars ($4,022,500,000.00). In addition, this Mortgage secures, and the Secured Obligations include, the unpaid balances of any advances made with respect to the Property for the payment of taxes, assessments, maintenance charges, insurance premiums or costs incurred for the protection of the Property or the Lien of this Mortgage (including expenses referred to in Section 1.4 below) and expenses incurred by the Mortgagee by reason of default by the Mortgagor under this Mortgage or any other Credit Document. SECTION 1.4 Expenses. If any action or proceeding is commenced to which the Mortgagee or the other Secured Parties (or any of them) become or are made a party arising out of or in connection with any of the Credit Documents, or in which it becomes necessary to enforce, defend or uphold the Lien of this Mortgage, all court costs and litigation costs (including, without limitation, reasonable attorneys' fees and expenses) (collectively "Expenses incurred by the Mortgagee and the other Secured Parties shall be paid by the Mortgagor, and any such sum shall be a Lien on the Property, prior to any right, or title to, interest in, or claim upon the Property attaching or accruing subsequent to the Lien of this Mortgage, and shall be deemed to be secured by this Mortgage. In any action or proceeding to foreclose the Lien of this Mortgage or to recover, collect or compel the performance of the Secured Obligations, the provisions of any Requirement of Law respecting the recovery of costs, disbursements and allowances shall prevail unaffected by this covenant. (a) The Mortgagor will maintain, or cause to be maintained, in full force and effect all insurance coverage and policies required to be maintained under the terms of the Credit Agreement, the Security Documents or any other Credit Document and as set forth herein. Insurance coverage shall include: (i) insurance against loss or damage to the Property by fire, windstorm, tornado and hail and against loss or damage by such other, further and additional risks as may be now or hereafter embraced by an "all risk" form insurance policy with Extended Coverage Endorsement and replacement cost broad form fire and collapse insurance on the Property with a company or companies approved by the Mortgagee and with coverages and in form, content and amount reasonably acceptable to the Mortgagee. Such policy shall also extend coverage for acts of vandalism and malicious mischief, without co- insurance, in an amount equal to 100% of the replacement cost of the Improvements. For buildings equipped with automatic sprinkler systems designed to discharge an extinguishing agent, including, but not limited to, water, chemicals or gas, such policy shall include sprinkler leakage as a covered cause of loss; (ii) for buildings equipped with boilers, heating and ventilating systems, refrigeration equipment, air conditioning units, pumps, compressors, motors, blowers, generators, transformers and other types of heavy equipment, the Mortgagee shall require Boiler and Machinery Insurance to cover the sudden and accidental breakdown of such equipment; (iii) if any Improvements (now or hereafter existing) on the Land are or will be located in an area identified by the U.S. Department of Housing and Urban Development or Federal Emergency Management Agency as an area having "special 0.05 flood hazards the Mortgagor shall also furnish flood insurance in the amount which is the lesser of (A) the maximum amount of the Secured Obligations for the purposes of this Mortgage, or (B) the maximum limit of coverage available under the National Flood Insurance Act of 1968, the Flood Disaster Protection Act of 1973, and the Housing and Community Development Acts of 1974 and 1977, all as amended; (iv) such worker's compensation insurance as is required by any Requirement of Law; (v) rental loss insurance or loss of business income insurance in an amount sufficient to compensate for all rents or income, if any, at the Property and real estate taxes and insurance premiums for a period of at least six (6) months; (vi) single limit comprehensive general public liability insurance against claims for bodily injury, death or property affording protection in respect of injury or death to any person or damage to property of any one owner, and in respect of injury or death to more than one person or damage to property of more than one owner arising from any one accident or occurrence, each to the limit required by the Mortgagee; and (vii) such other insurance on the Property or on any replacements or substitutions thereof or additions thereto as may from time to time be required by the Mortgagee against other insurable hazards or casualties which at the time are commonly insured against in the case of property similarly situated, including, without limitation, Sinkhole, Mine Subsidence and Earthquake insurance, due regard being given to the height and type of buildings, their construction, location, use and occupancy. (b) During the term of the Credit Agreement, the premium on each insurance policy described above shall be paid on or prior to the date when due and the policy term renewed annually in the same form and with at least the same coverage as the preceding year, with the Mortgagee to receive notice of renewal at least thirty (30) days prior to expiration. Further, no such policy shall be subject to cancellation, nonrenewal or reduction of coverage unless the insurer has given the Mortgagee at least thirty (30) days' prior written notice of such action. All policies described herein must be issued by insurance companies and agencies licensed by the Insurance Commission (or comparable agency) of the state in which the Property is located (the "State to conduct business in the State and approved by the Mortgagee. The Mortgagee shall have the right to approve each and every insurance carrier and policy, such approval not to be unreasonably withheld. (c) All policies shall include a standard, non contributory mortgagee clause naming the Mortgagee and /or the Secured Parties (as may be required) as additional insured under all liability insurance policies, as first mortgagee on all property insurance policies and as the loss payee on all loss of rents insurance policies. All policies shall be in form and content as approved by the Mortgagee. SECTION 1.6 Removal of Improvements. No Improvements shall be removed, demolished or materially altered without the Mortgagee's prior written consent, which shall not be unreasonably withheld. SECTION 1.7 Security Interest. The Mortgagor shall promptly cause to be prepared and filed (as directed by the Mortgagee) any and all documents, including UCC Financing Statements (the "Financing Statements pursuant to the Uniform Commercial Code of the State as now enacted and 7 0106 subsequently amended from time to time (the "Code and /or pursuant to the Uniform Commercial Code of the state in which the Mortgagor is organized, as may be necessary, or as the Mortgagee may reasonably request, to preserve and maintain the first lien priority of the interest created hereby on all fixtures and personal property constituting part of the Property. Such Financing Statements shall be filed in such places as the Mortgagee reasonably determines. The Mortgagor hereby authorizes and empowers the Mortgagee to prepare and file, on the Mortgagor's behalf, all Financing Statements and refilings and continuations thereof as the Mortgagee deems reasonably necessary or advisable to perfect, preserve and protect the Mortgagee's and Secured Parties' interest in such fixtures and personal property, and the Mortgagor hereby irrevocably appoints the Mortgagee as the Mortgagor's agent and attorney -in -fact (such appointment being coupled with an interest) so to do. This Mortgage is deemed a "Security Agreement" (as defined in the Code) and, with respect to the personal property encumbered by this Mortgage, the remedies for any violation of the covenants, terms and conditions and agreements contained in the Credit Documents shall be as prescribed (i) in this Mortgage (the Mortgagor agreeing that all such personal property may be sold by the Mortgagee as part of any sale under any foreclosure sale provided for in Section 4.1 hereof) or under any other Credit Document, (ii) by any Requirement of Law or (iii) by the Code, all at the Mortgagee's sole election. SECTION 1.8 Sale; Liens; Subdivision. Except as may be permitted under the Credit Agreement or any other Credit Document, the Mortgagor shall not, directly or indirectly, sell, transfer, convey, lease or further encumber or mortgage, whether voluntary, involuntary or by operation of law, or suffer or permit the same, all or any part of the Property or any interest therein or in the Mortgagor; provided, that in the event any such sale, transfer, conveyance, lease or encumbrance is permitted and shall occur, the proceeds relating to or arising therefrom shall be applied to the Secured Obligations to the extent required by, and in the manner set forth in, the Credit Agreement. SECTION 1.9 Eminent Domain. The Mortgagee is hereby authorized and empowered to settle, adjust or compromise any and all claims and rights arising from any eminent domain or condemnation action relating to part or all of the Property (or any interest therein) and to collect and receive the proceeds relating to or arising therefrom (collectively, the "Condemnation Proceeds Each entity which may hereafter exercise a power of eminent domain or condemnation with respect to part or all of the Property is hereby authorized and directed to pay Condemnation Proceeds directly to the Mortgagee, for the benefit of the Secured Parties, instead of to the Mortgagor and the Mortgagee jointly. In the event any entity which may hereafter exercise a power of eminent domain or condemnation with respect to part or all of the Property fails to disburse Condemnation Proceeds directly and solely to the Mortgagee but disburses such Condemnation Proceeds instead either solely to the Mortgagor or to the Mortgagor and the Mortgagee jointly, the Mortgagor agrees to (i) hold such Condemnation Proceeds in trust for the Mortgagee and (ii) immediately endorse and transfer such Condemnation Proceeds to the Mortgagee. Upon the failure of the Mortgagor to immediately endorse and transfer such Condemnation Proceeds as aforesaid, the Mortgagee may execute such endorsements or transfers for and in the name of the Mortgagor, and the Mortgagor hereby irrevocably appoints the Mortgagee as the Mortgagor's agent and attorney -in -fact (such appointment being coupled with an interest) so to do. The Condemnation Proceeds shall be applied to the Secured Obligations to the extent required by, and in the manner set forth in, the Credit Agreement. SECTION 1.10 Insurance Proceeds. The Mortgagee is hereby authorized and empowered to settle, adjust or compromise any claims or rights under any insurance policies maintained pursuant to this Mortgage, the Credit Agreement or any other Credit Document and to collect and receive the proceeds from any such policy or policies (collectively, the "Insurance Proceeds Each insurance company is hereby authorized and directed to pay all Insurance Proceeds directly to the Mortgagee, for the benefit of the Secured Parties, instead of to the Mortgagor and the Mortgagee jointly. In the event any insurance company fails to disburse Insurance Proceeds directly and solely to the Mortgagee but disburses 8 0107 such Insurance Proceeds instead either solely to the Mortgagor or to the Mortgagor and the Mortgagee jointly, the Mortgagor agrees to (i) hold such Insurance Proceeds in trust for the Mortgagee and (ii) immediately endorse and transfer such Insurance Proceeds to the Mortgagee. Upon the failure of the Mortgagor to endorse and transfer such Insurance Proceeds as aforesaid, the Mortgagee may execute such endorsements or transfers for and in the name of the Mortgagor, and the Mortgagor hereby irrevocably appoints the Mortgagee as the Mortgagor's agent and attorney -in -fact (such appointment being coupled with an interest) so to do. The Insurance Proceeds shall be applied to the Secured Obligations to the extent required by, and in the manner set forth in, the Credit Agreement. ARTICLE II POSSESSION AND ADMINISTRATION OF THE PROPERTY SECTION 2.1 Impositions. (a) The Mortgagor will pay or cause to be paid in a timely manner all taxes, assessments and other charges now or hereafter levied against the Property, or any part thereof, and also any and all license fees or similar charges which may be imposed by the municipality in which the Premises are situated for the use of walks, areas, air space, parking areas and other space or facilities beyond the lot line and on or abutting the public sidewalks in front of or adjoining the Premises, together with any penalties or interest on any of the foregoing; and in the case of default in the payment thereof, the Mortgagee may (but shall not be obligated to) pay the same and the Mortgagor will repay or cause to be repaid such sum, and such sum shall be added to the indebtedness secured by this Mortgage. (b) The Mortgagor will not claim any deduction from the taxable value of the Property because of this Mortgage. The Mortgagor will not claim any credit on or make any deduction from the interest or principal of the Secured Obligations by reason of the payment of any taxes levied or to be levied on the Property, or any part thereof, during the continuance of the Lien of this Mortgage. SECTION 2.2 Warranty of Title. The Mortgagor warrants that the Mortgagor is indefeasibly seized of the Property in fee simple absolute, free and clear from all encumbrances (subject only to Liens permitted pursuant to the terms of the Credit Agreement), and that the Mortgagor has full power and lawful authority to convey and encumber the same; that the Mortgagor shall and will make, execute, acknowledge and deliver all such further or other deeds, instruments or assurances as may at any time hereafter be reasonably desired or required by the Mortgagee to more fully and effectually convey the Property for the purposes aforesaid; and that the Mortgagor will warrant and defend the Property against all persons whomsoever, except for claims arising pursuant to Liens permitted pursuant to the terms of the Credit Agreement. SECTION 2.3 Waste. The Mortgagor will cause the Improvements now or hereafter constructed on, and constituting part of, the Property to be protected and to be kept in good order and repair and will not commit or suffer any waste, deterioration or impairment of the Property whereby the value of the Property might be materially impaired. In the event that such waste, deterioration or impairment of the Property shall occur, which such waste, deterioration or impairment is not promptly cured by the Mortgagor, the Mortgagee may (but shall not be obligated to) take such action as may be necessary to remedy such condition and the Mortgagor shall repay or cause to be repaid all costs and expenses associated with such remedy and such sum shall be added to the Secured Obligations. 9 0108 SECTION 2.4 Inspection. The Mortgagee and any persons authorized by the Mortgagee shall have the right to enter and inspect the Property at all reasonable times and upon reasonable prior notice to the Mortgagor; provided that, upon the occurrence and during the continuance of an Event of Default, the Mortgagee may do any of the foregoing at any time without advance notice. SECTION 2.5 Compliance with Governmental Authorities. The Mortgagor will comply with or cause to be complied with in all material respects, all statutes, ordinances and requirements of any Governmental Authority relating to the Property. The Mortgagor will not initiate, join in, or consent to any change in any private restrictive covenant, zoning ordinance or other public or private restrictions, limiting or defining the uses which may be made of the Premises, or any part thereof, without the prior written consent of the Mortgagee, which shall not be unreasonably withheld. ARTICLE III ASSIGNMENT OF LEASES AND RENTS SECTION 3.1 Assignment. The Mortgagor hereby assigns to the Mortgagee, for its own benefit and for the benefit of the other Secured Parties, all Rents and all of the Mortgagor's rights in and under all Leases. So long as no Event of Default has occurred, the Mortgagor shall have a license (which license shall terminate automatically and without further notice upon the occurrence of an Event of Default) to collect, but not prior to accrual, the Rents under the Leases and, where applicable, subleases, such Rents to be held in trust for the Mortgagee and to otherwise deal with all Leases as permitted by this Mortgage. Each month, provided no Event of Default has occurred, the Mortgagor may retain such Rents as were collected that month and held in trust for the Mortgagee. Upon the revocation of such license, all Rents shall be paid directly to the Mortgagee and not through the Mortgagor, all without the necessity of any further action by the Mortgagee, including, without limitation, any action to obtain possession of the Land, Improvements or any other portion of the Property or any action for the appointment of a receiver. The Mortgagor hereby authorizes and directs the tenants under the Leases to pay Rents to the Mortgagee upon written demand by the Mortgagee, without further consent of the Mortgagor, without any obligation of such tenants to determine whether an Event of Default has in fact occurred and regardless of whether the Mortgagee has taken possession of any portion of the Property, and the tenants may rely upon any written statement delivered by the Mortgagee to the tenants. Any such payments to the Mortgagee shall constitute payments to the Mortgagor under the Leases. The curing of an Event of Default, unless any other Event of Default also then exists, shall entitle the Mortgagor to recover its aforesaid license to do any such things which the Mortgagor might otherwise do with respect to the Property and the Leases thereon and to again collect such Rents. The powers and rights granted in this paragraph shall be in addition to the other remedies herein provided for upon the occurrence of an Event of Default and may be exercised independently of or concurrently with any of said remedies. Nothing in the foregoing shall be construed to impose any obligation upon the Mortgagee to exercise any power or right granted in this Section 3.1 or to assume any liability under any Lease of any part of the Property and no liability shall attach to the Mortgagee for failure or inability to collect any Rents under any such Lease. The assignment contained in this Section 3.1 shall become null and void upon the release of this Mortgage. SECTION 3.2 Covenants, Representations and Warranties Concerning Leases and Rents. The Mortgagor covenants, represents and warrants that: (a) the Mortgagor has good title to, and is the owner of the entire landlord's interest in, the Leases and Rents hereby assigned and authority to assign them; (b) all Leases are valid and enforceable, and in full force and effect, and are unmodified except as stated therein; (c) neither the Mortgagor nor any tenant in the Property is in default under its Lease (and no event has occurred which with the passage of time or notice or both would result in a default under its Lease) or is the subject of any bankruptcy, insolvency or similar proceeding; (d) unless otherwise stated 10 01©9 in a Permitted Lien, no Rents or Leases have been or will be assigned, mortgaged, pledged or otherwise encumbered and no other Person has or will acquire any right, title or interest in such Rents or Leases; (e) no Rents have been waived, released, discounted, set off or compromised; (f) except as stated in the Leases, the Mortgagor has not received any funds or deposits from any tenant for which credit has not already been made on account of accrued Rents; (g) the Mortgagor shall perform all of its obligations under the Leases and enforce the tenants' obligations under the Leases to the extent enforcement is prudent under the circumstances; (h) the Mortgagor will not, without the prior written consent of the Mortgagee, enter into any Lease after the date hereof, or waive, release, discount, set off, compromise, reduce or defer any Rents, receive or collect Rents more than one (1) month in advance, grant any rent -free period to any tenant, reduce any Lease term or waive, release or otherwise modify any other material obligation under any Lease, renew or extend any Lease except in accordance with a right of the tenant thereto in such Lease, approve or consent to an assignment of a Lease or a subletting of any part of the premises covered by a Lease, or settle or compromise any claim against a tenant under a Lease in bankruptcy or otherwise; (i) the Mortgagor will not, without the prior written consent of the Mortgagee, which shall not be unreasonably withheld, terminate or consent to the cancellation or surrender of any Lease having an unexpired term of one (1) year or more; (j) the Mortgagor shall give prompt notice to the Mortgagee, as soon as the Mortgagor first obtains notice, of any claim, or the commencement of any action, by any tenant or subtenant under or with respect to a Lease regarding any claimed damage, default, diminution of or offset against Rents, cancellation of the Lease, or constructive eviction, and the Mortgagor shall defend, at the Mortgagor's expense, any proceeding pertaining to any Lease, including, if the Mortgagee so requests, any such proceeding to which the Mortgagee is a party; (k) the Mortgagor shall as often as requested by the Mortgagee, within thirty (30) days of each request, deliver to the Mortgagee a complete rent roll of the Property in such detail as the Mortgagee may require and financial statements of the tenants, subtenants and guarantors under the Leases to the extent available to the Mortgagor, and deliver to such of the tenants and others obligated under the Leases specified by the Mortgagee written notice of the assignment in Section 3.1 hereof in form and content satisfactory to the Mortgagee; (1) promptly upon request by the Mortgagee, the Mortgagor shall deliver to the Mortgagee executed originals of all Leases and copies of all records relating thereto; and (m) there shall be no merger of the leasehold estates created by the Leases with the fee estate of the Land without the prior written consent of the Mortgagee. SECTION 3.3 Estoppel Certificates. All future Leases and extensions or renewals of existing Leases shall require the tenant to execute and deliver to the Mortgagee an estoppel certificate in form and substance acceptable to the Mortgagee within thirty (30) days after notice from the Mortgagee. SECTION 3.4 No Liability of the Mortgagee. The Mortgagee's acceptance of this assignment shall not be deemed to constitute the Mortgagee a "mortgagee in possession," or similar term, nor obligate the Mortgagee to appear in or defend any proceeding relating to any Lease or to the Property, or to take any action hereunder, expend any money, incur any expenses, or perform any obligation or liability under any Lease, or assume any obligation for any deposit delivered to the Mortgagor by any tenant and not as such delivered to and accepted by the Mortgagee. The Mortgagee shall not be liable for any injury or damage to person or property in or about the Property, or for the Mortgagee's failure to collect or to exercise diligence in collecting Rents, but shall be accountable only for Rents that it shall actually receive. Neither the assignment of Leases and Rents nor enforcement of the Mortgagee's rights regarding Leases and Rents (including collection of Rents) nor possession of the Property by the Mortgagee nor the Mortgagee's consent to or approval of any Lease (nor all of the same), shall render the Mortgagee liable on any obligation under or with respect to any Lease or constitute affirmation of, or any subordination to, any Lease, occupancy, use or option. If the Mortgagee seeks or obtains any judicial relief regarding Rents or Leases, the same shall in no way prevent the concurrent or subsequent employment of any other appropriate rights or remedies nor shall 11 same constitute an election of judicial relief for any foreclosure or any other purpose. The Mortgagee neither has nor assumes any obligations as lessor or landlord with respect to any Lease. The rights of the Mortgagee under this Article III shall be cumulative of all other rights of the Mortgagee under the Credit Documents or otherwise. ARTICLE IV REMEDIES 0110 SECTION 4.1 Remedies. In addition to, and without limitation of, remedies set forth in this Mortgage, the Credit Agreement, the other Credit Documents and any Requirement of Law, upon the occurrence of an Event of Default, and at any time thereafter during the continuance of such Event of Default, to the extent permitted by any Requirement of Law, the Mortgagee may, and upon the request of the Required Lenders shall, exercise any or all of the following remedies: (a) the Mortgagee may enter into and upon all or any part of the Property and may exclude the Mortgagor and its agents and servants wholly therefrom, and having and holding the same may use, operate, develop, manage and control the Property, or any part thereof, and conduct the business of the Mortgagor (including, without limitation, exercising any and all rights of the Mortgagor under the Leases and any other applicable lease with respect to the Property), either personally, or by the Mortgagee's agents, attorneys, receivers or trustees, in such manner as the Mortgagee may deem to be to the Mortgagee's best advantage. To the extent permitted by any Requirement of Law, the Mortgagee shall be entitled to collect and receive all Rents, for the benefit of the Secured Parties or to otherwise exercise all of the Mortgagor's rights with respect to the Rents after deducting all associated expenses, and all necessary repairs, maintenance, renewals, replacements, alterations, additions, betterments and improvements, and all payments which may be made for taxes, assessments, insurance and other charges creating Liens on the Property, or any part thereof, as well as reasonable compensation for their own services and for the services of their counsel, agents, clerks, servants and other employees by them properly engaged and employed, provided no compensation shall be paid to any employee, agent or clerk of the Mortgagee above the level of property manager employed in connection with the exercise of the Mortgagee's rights under this Section 4.1(a). (b) the Mortgagee shall apply the balance of the money derived from the operation and management of the Property and business in the manner set forth in Section 4.4 below. (c) the Mortgagee may bring an appropriate action to recover any sums required to be paid by the Mortgagor under the terms of the Credit Documents, as they become due, without regard to whether or not the principal indebtedness or any other sums evidenced by the Credit Documents and secured by this Mortgage shall be due, and without prejudice to the right of the Mortgagee thereafter to bring an action of foreclosure, or any other action, for any Event of Default existing at the time the earlier action was commenced. (d) the Mortgagee may declare the Secured Obligations, or any of them, to be immediately due and payable, and unless same are paid or performed on demand, the Mortgagee may resort to any and all remedies provided in any Credit Document or by law and in equity. (e) the Mortgagee may foreclose the Lien of this Mortgage in any manner now or hereafter provided by the laws of the State, and in connection with (but not as a requirement of) any such foreclosure, the Mortgagee may sell the Property (or any part thereof designated by the Mortgagee) at public outcry to the highest bidder for cash in front of the courthouse door in the 12 0111 county where the Property is located, either in person or by auctioneer, after having first given notice of the time, place and terms of sale by publication once a week for three (3) successive weeks prior to said sale in some newspaper published in said county, and, upon payment of the purchase money, the Mortgagee or any person conducting the sale for the Mortgagee is authorized to execute to the purchaser at said sale a deed to the Property so purchased. The Mortgagee may bid at said sale and purchase said Property, or any part thereof, if the highest bidder therefor, and apply all or any part of the Secured Obligations secured hereby as a credit against the purchase price. (f) the Mortgagee may exercise any or all of the remedies available to a secured party under the Code, including, but not limited to, selling, leasing or otherwise disposing of any fixtures and personal property which is encumbered hereby at public sale, with or without having such fixtures or personal property at the place of sale, and upon such terms and in such manner as the Mortgagee may determine. The Mortgagee and the Secured Parties, or any of them, may be a purchaser at any such public sale of such fixtures or personal property. (g) the Mortgagee may proceed to protect and enforce the Mortgagee's and Secured Parties' rights under this Mortgage and any other Credit Document by a suit or suits in equity or at law, whether for the specific performance of any covenant or agreement, assistance in connection with the execution of any power granted herein or other appropriate legal or equitable remedy. (h) the Mortgagee may apply to an appropriate court for the appointment of a receiver of the Rents of the Property, and the Mortgagee shall be entitled to the appointment of such a receiver as a matter of right without consideration of the value of the Property as security for the amounts due the Mortgagee and the other Secured Parties or the solvency of any person or entity liable for the payment of such amounts. In the event the Property, or any portion thereof, is sold pursuant to any writ of execution on a judgment obtained by virtue of any Credit Document, including pursuant to a power of sale granted by statute or by this Mortgage or under a judicial proceeding, or pursuant to any other judicial proceedings under any Credit Document, the Property may be sold as a whole or as separate parcels and in such manner or order as the Mortgagee in its reasonable discretion may elect. In case the Mortgagee shall have proceeded to enforce any right, power or remedy under this Mortgage by foreclosure, entry, sale or otherwise, and such proceedings shall have been discontinued or abandoned for any reason, or shall have been determined adversely to the Mortgagee, then in every such case, the Mortgagor and the Mortgagee shall be restored to their former positions and rights hereunder, and all rights, powers and remedies of the Mortgagee shall continue as if no such proceedings had occurred. To the extent permitted by any Requirement of Law, any judicial sale or sales made under or by virtue of this Mortgage (including pursuant to a power of sale granted by statute or by this Mortgage or under a judicial proceeding), shall operate to divest all right, title, interest, claim and demand whatsoever, either at law or in equity, of the Mortgagor in and with respect to the Property sold and shall be a perpetual bar, both at law and in equity, against the Mortgagor, its successors and assigns, and against any and all persons claiming the Property, or any part thereof, through or under the Mortgagor. SECTION 4.2 Remedies Not Exclusive. The Mortgagee shall be entitled to enforce payment and performance of the applicable Secured Obligations secured hereby and to exercise all rights and powers under this Mortgage, or any laws now or hereafter enforced, notwithstanding that some of the 13 0112 applicable Secured Obligations may now or hereafter be otherwise secured. Neither the acceptance of this Mortgage nor its enforcement, shall prejudice or in any manner affect the Mortgagee's right to realize upon or enforce any other security now or hereafter held by the Mortgagee or by the Secured Parties or any of them, it being agreed that the Mortgagee shall be entitled to enforce this Mortgage and any other security now or hereafter held by the Mortgagee and the Secured Parties or any of them in such order and manner as they or any of them may in their absolute discretion determine. No remedy herein conferred upon or reserved to the Mortgagee is intended to be exclusive of any other remedy in this Mortgage, in the other Credit Documents, or by any Requirement of Law provided to the Mortgagee or any other Secured Party or to preclude any other remedy in this Mortgage, in the other Credit Documents, or by any Requirement of Law provided or permitted to the Mortgagee or any other Secured Party, but each such remedy shall be cumulative and shall be in addition to every other remedy given in this Mortgage, in the other Credit Documents, or now or hereafter existing at law or in equity. Every power or remedy given by any of the Credit Documents to the Mortgagee or any Secured Party, as applicable, or to which any of them may be otherwise entitled, may be exercised concurrently or independently from time to time and as often as may be deemed expedient by the Mortgagee or such Secured Party, as applicable. SECTION 4.3 Powers and Rights Not Waived. Any failure by the Mortgagee or the Secured Parties to insist upon the strict performance by the Mortgagor of any of the terms and provisions hereof shall not be deemed to be a waiver of any of the terms and provisions hereof, and the Mortgagee and the Secured Parties, notwithstanding any such failure, shall have the right thereafter to insist upon the strict performance by the Mortgagor of any and all of the terms and provisions of this Mortgage to be performed by the Mortgagor. Neither the Mortgagor nor any other Person now or hereafter obligated for the payment of the whole or any part of the sums now or hereafter secured by this Mortgage shall be relieved of such obligation by reason of the failure of the Mortgagee or the Secured Parties to comply with any request of the Mortgagor, or of any other Person so obligated, to take action to foreclose this Mortgage or otherwise enforce any of the provisions of this Mortgage or any obligations secured by this Mortgage, or by reason of the release, regardless of consideration, of the whole or any part of the security held for the indebtedness secured by this Mortgage, or by reason of any agreement or stipulation between any subsequent owner or owners of the Property and the. Mortgagee extending the time of payment or modifying the terms of the Secured Obligations (provided that such modifications shall not increase the principal amount of the Secured Obligations or the interest rate, except with respect to default interest rate provisions) or of this Mortgage without first having obtained the consent of the Mortgagor or such other Person, and in the latter event, the Mortgagor and all such other Persons shall continue to be liable to make such payments according to the terms of any such agreement of extension or modification unless expressly discharged in writing by the Mortgagee. Regardless of consideration, the. Mortgagee may, or at the request of the Required Lenders shall, release the obligation of any party at any time liable for any of the Secured Obligations without in any way impairing or affecting the Lien hereof, and the Mortgagee and the Secured Parties may resort for the payment of the Secured Obligations to any other security therefor held by the Mortgagee and the Secured Parties in such order and manner as they may elect. SECTION 4.4 Application of Proceeds. If an Event of Default shall have occurred and be continuing and the Mortgagee shall have exercised any of its rights or remedies with respect to the Property pursuant to this Article IV, the Mortgagee shall apply the proceeds resulting from the exercise of such rights or remedies (after deducting all reasonable costs and expenses of every kind incurred in connection therewith or incidental to the care or safekeeping of any of the Property or in any way relating to the Property or the rights or remedies of the Mortgagee and the other Secured Parties hereunder, including, without limitation, reasonable attorneys' fees and disbursements) as follows: FIRST, to the payment of all costs and expenses incurred by the Mortgagee in connection with such exercise of rights and remedies in connection with this Mortgage, the Credit Agreement, any other Credit Document, or any of the Secured Obligations, including all court 14 SECTION 5.1 ARTICLE V MORTGAGEE Appointment of Mortgagee as Attorney -In -Fact. 15 O 13 costs and the fees and expenses of its agents and legal counsel and trustees, the repayment of all advances made by the Mortgagee under this Mortgage, the Credit Agreement or any other Credit Document and any other costs or expenses incurred in connection with the exercise of any right or remedy hereunder or under the Credit Agreement or any other Credit Document; SECOND, to the payment in full of the Secured Obligations, to be distributed by the Administrative Agent to the Secured Parties as required pursuant to the terms of the Credit Agreement; and THIRD, upon the indefeasible payment in full of the Secured Obligations, to the Mortgagor or to whomsoever (if such Person is not the Mortgagor) may be lawfully entitled to receive the same or as a court of competent jurisdiction may otherwise direct. The Mortgagee shall have absolute discretion as to the time of application of any such proceeds, moneys or balances in accordance with this Mortgage. Upon any sale of Property by the Mortgagee (including pursuant to a power of sale granted by statute or by this Mortgage or under a judicial proceeding), the receipt by the Mortgagee or by the officer making the sale shall be a sufficient discharge to the purchaser or purchasers of the Property so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid over to the Mortgagee or such officer or be answerable in any way for the misapplication thereof. Only after (i) the payment by the Mortgagee of any other amount required by any Requirement of Law, including, without limitation, Section 9 -610 and Section 9 -615 of the Code and (ii) the indefeasible payment in full of the Secured Obligations and the termination of the Commitments, shall the Mortgagee account for the surplus, if any, to the Mortgagor, or to whomsoever may be lawfully entitled to receive the same (if such Person is not the Mortgagor). (a) The Mortgagor hereby irrevocably constitutes and appoints each of the Mortgagee and any officer or agent thereof, with full power of substitution, as its true and lawful attorney -in -fact with full irrevocable power and authority in the place and stead of the Mortgagor or and in the name of the Mortgagor or in its own name, for the purpose of carrying out the terms of this Mortgage, effective upon the occurrence of an Event of Default, to take any and all appropriate action and to execute any and all documents and instruments which may be necessary or desirable to accomplish the purposes of this Mortgage, and, without limiting the generality of the foregoing, the Mortgagor hereby gives the Mortgagee the power and right, on behalf of the Mortgagor, without notice to or assent by the Mortgagor, to do any or all of the following upon the occurrence and during the continuation of an Event of Default: (i) pay or discharge taxes and Liens levied or placed on or threatened against the Property, effect any repairs or any insurance called for by the terms of this Mortgage and pay all or any part of the premiums therefor and the costs thereof; (ii) execute, in connection with any sale provided for in this Mortgage, any endorsements, assignments or other instruments of conveyance or transfer with respect to the Property; 0114 (iii) to do all things, after an Event of Default, which the Mortgagor might otherwise do with respect to the Property and the Leases thereon, including, without limitation, (A) collecting Rents with or without suit and applying the same, less expenses of collection, to any of the obligations secured hereunder or to expenses of operating and maintaining the Property (including reasonable reserves for anticipated expenses), at the option of the Mortgagee, all in such manner as may be determined by the Mortgagee, or at the option of the Mortgagee, holding the same as security for the payment of the Secured Obligations, (B) leasing, in the name of the Mortgagor, the whole or any part of the Property which may become vacant, and (C) employing agents therefor and paying such agents reasonable compensation for their services; and (iv) (A) commence and prosecute any suits, actions or proceedings at law or in equity in any court of competent jurisdiction to foreclose upon the Property or any portion thereof and to enforce any other right in respect of the Property; (B) defend any suit, action or proceeding brought against the Mortgagor with respect to the Property; (C) settle, compromise or adjust any such suit, action or proceeding and, in connection therewith, give such discharges or releases as the Mortgagee may deem appropriate; and (D) generally, sell, transfer, pledge and make any agreement with respect to or otherwise deal with any of the Property as fully and completely as though the Mortgagee was the absolute owner thereof for all purposes, and do, at the Mortgagee's option and the Mortgagor's expense, at any time, or from time to time, all acts and things which the Mortgagee deems necessary to protect, preserve or realize upon the Property and the Mortgagee's and the Secured Parties' Lien therein and to effect the intent of this Mortgage, all as fully and effectively as the Mortgagor might do. (b) If the Mortgagor fails to perform or comply with any of its agreements contained herein, the Mortgagee, at its option, but without any obligation so to do, may perform or comply, or otherwise cause performance or compliance, with such agreement in accordance with the provisions of Section 5.1(a) above. (c) The expenses of the Mortgagee incurred in connection with actions taken pursuant to the terns of this Mortgage, together with interest thereon at a rate per annum equal to the highest rate per annum at which interest would then be payable on any category of past due Loans under the Credit Agreement, from the date of payment by the Mortgagee to the date reimbursed by the Mortgagor, shall be payable by the Mortgagor to the Mortgagee on demand. (d) The Mortgagor hereby ratifies all that said attorneys shall lawfully do or cause to be done by virtue hereof in accordance with Section 5.1(a) above. All powers, authorizations and agencies contained in this Mortgage are coupled with an interest and are irrevocable until this Mortgage is terminated and the Lien created hereby is released. SECTION 5.2 Duty of Mortgagee. The sole duty of the Mortgagee with respect to the custody, safekeeping and physical preservation of the Property, under Section 9 -207 of the Code or otherwise, shall be to deal with it in the same manner as the Mortgagee deals with similar property for its own account. Neither the Mortgagee, any other Secured Party nor any of their respective officers, directors, employees or agents shall be liable for failure to demand, collect or realize upon any of the Property or for any delay in doing so or shall be under any obligation to sell or otherwise dispose of any Property upon the request of the Mortgagor or any other Person or to take any other action whatsoever with regard to the Property or any part thereof. The powers conferred on the Mortgagee and the other Secured Parties hereunder are solely to protect the interests of the Mortgagee and the other Secured Parties in the Property and shall not impose any duty upon the Mortgagee or any other Secured Party to exercise any such powers. The Mortgagee and the other Secured Parties shall be accountable only for amounts that they actually receive as a result of the exercise of such powers, and neither they nor any of 16 their officers, directors, employees or agents, shall be responsible to the Mortgagor for any act or failure to act hereunder, except for their own gross negligence or willful misconduct. SECTION 5.3 Authority of Mortgagee. The Mortgagor acknowledges that the rights and responsibilities of the Mortgagee under this Mortgage with respect to any action taken by the Mortgagee or the exercise or non exercise by the Mortgagee of any request, judgment or other right or remedy provided for herein or resulting or arising out of this Mortgage shall, as between the Mortgagee and the Mortgagor, be conclusively presumed to be an action taken as agent for the Secured Parties with full and valid authority so to act or refrain from acting, and the Mortgagor shall not be under any obligation, or entitlement to make any inquiry respecting such authority. SECTION 5.4 Limitations on Responsibility of the Mortgagee. 0 11 5 (a) The Mortgagee shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Mortgage or any other Credit Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any Default or Event of Default or (iv) the validity, enforceability, effectiveness or genuineness of this Mortgage, any other Credit Document, or any other agreement, instrument or document. (b) The Mortgagee makes no representation as to the value or condition of the Property or any part thereof, as to the title of the Mortgagor to the Property, as to the security afforded by this Mortgage or as to the validity, execution, enforceability, legality or sufficiency of this Mortgage, and the Mortgagee shall incur no liability or responsibility in respect of any such matters. The Mortgagee shall not be responsible for insuring the Property, for the payment of taxes, charges, assessments or Liens upon the Property or otherwise for the maintenance of the Property, except as provided in the immediately following sentence when the Mortgagee has possession or control of the Property. Except as otherwise provided herein, the Mortgagee shall have no duty to the Mortgagor, the other Secured Parties or to any other holders of the Secured Obligations as to any Property in its possession or control, or in the possession or control of any agent or nominee of the Mortgagee, or any income thereon or as to the preservation of rights against prior parties or any other rights pertaining thereto, except the duty to accord such Property the same care that it normally accords to its own assets and the duty to account for moneys received by it. Neither the Mortgagee, any Secured Party nor any of their respective officers, directors, employees or agents shall be liable for failure to demand, collect or realize upon any of the Property or for any delay in doing so or shall be under any obligation to sell or otherwise dispose of any Property upon the request of the Mortgagor or any other Person or to take any other action whatsoever with regard to the Property or any part thereof. The powers conferred on the Mortgagee and the Secured Parties hereunder are solely to protect the Mortgagee's and the Secured Parties' interests in the Property and shall not impose any duty upon the Mortgagee or any Secured Party to exercise any such powers. The Mortgagee and the Secured Parties shall be accountable only for amounts that they actually receive as a result of the exercise of such powers, and neither they nor any of their officers, directors, employees or agents shall be responsible to the Mortgagor for any act or failure to act hereunder, except for their own gross negligence or willful misconduct. (c) Neither the Mortgagee nor any officer, agent or representative thereof shall be personally liable for any action taken or omitted to be taken by any such person in connection with this Mortgage except for such person's own gross negligence or willful misconduct (it being 17 0: 16 understood that any action taken in accordance with the terms of this Mortgage by the Mortgagee or any such officer, agent or representative at the direction or instruction of any Secured Party (or not taken, in the absence of any such directions or instructions) shall not constitute gross negligence or willful misconduct). (d) The Mortgagee may execute any of the powers granted under this Mortgage and perform any duty hereunder either directly or by or through agents or attorneys -in -fact, and shall not be responsible for the negligence or misconduct of any agents or attorneys -in -fact selected by it without gross negligence or willful misconduct. (e) The Mortgagee shall not be subject to any fiduciary or other implied duties, regardless of whether a Default or an Event of Default has occurred and is continuing. (f) The Mortgagee shall have no duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the other Credit Documents that the Mortgagee is required to exercise as directed in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be expressly provided for herein or in the other Credit Documents); provided that the Mortgagee shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Mortgagee to liability or that is contrary to any Credit Document or any Requirement of Law. (g) The Mortgagee shall not, except as expressly set forth herein and in the other Credit Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Mortgagor or any of its Subsidiaries or Affiliates that is communicated to or obtained by the Person serving as the Mortgagee or any of its Affiliates in any capacity. (h) The Mortgagee shall not be deemed to have knowledge of any Default or Event of Default unless and until notice describing such Default or Event of Default is given to the Mortgagee by an authorized officer of the Mortgagor. SECTION 5.5 Reliance by Mortgagee. The Mortgagee shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person. The Mortgagee also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person, and shall not incur any liability for relying thereon. The Mortgagee may consult with legal counsel (who may be counsel for the Mortgagor), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. SECTION 5.6 Resignation and Removal of the Mortgagee. The Mortgagee may at any time give notice of its resignation to the Secured Parties and the Mortgagor. Upon receipt of any such notice of resignation, the Required Lenders shall have the right, in consultation with the Mortgagor, to appoint a successor, which shall be a bank with an office in the United States, or an Affiliate of any such bank with an office in the United States. If no such successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within thirty (30) days after the retiring Mortgagee gives notice of its resignation, then the retiring Mortgagee may on behalf of the Secured Parties, appoint a successor Mortgagee meeting the qualifications set forth above; provided that if the Mortgagee shall notify the Mortgagor and the Secured Parties that no qualifying Person has accepted such appointment, then such resignation shall nonetheless become effective in accordance with such notice and 18 ARTICLE VI MISCELLANEOUS 0117 (a) the retiring Mortgagee shall be discharged from its duties and obligations hereunder and under the other Credit Documents (except that in the case that title to the Property is held by the Mortgagee on behalf of the Secured Parties, the retiring Mortgagee shall continue to hold such title to such Property until such time as a successor Mortgagee is appointed) and (b) all payments, communications and determinations provided to be made by, to or through the Mortgagee shall instead be made by or to each Secured Party directly, until such time as the Required Lenders appoint a successor Mortgagee as provided for above in this paragraph. Upon the acceptance of a successor's appointment as Mortgagee hereunder, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring (or retired) Mortgagee, and the retiring Mortgagee shall be discharged from all of its duties and obligations hereunder (if not already discharged therefrom as provided above in this paragraph). The fees payable by the Mortgagor to a successor Mortgagee shall be the same as those payable to its predecessor unless otherwise agreed between the Mortgagor and such successor. After the retiring Mortgagee's resignation hereunder and under the other Credit Documents, the provisions of this Article V and Sections 1.4 and 6_4 shall continue in effect for the benefit of such retiring Mortgagee, its sub agents and their respective officers, employees and agents in respect of any actions taken or omitted to be taken by any of them while the retiring Mortgagee was acting as Mortgagee. SECTION 6.1 Notices. Any notice, demand or other communication which, by any provision of this Mortgage, is required or permitted to be given or served by or to the Mortgagee, the Secured Parties or the Mortgagor shall be conclusively deemed to have been properly given or served by the sending party and to be effective if made in a manner which complies with the Credit Agreement, in the case of the Mortgagee, at its address as set forth in the Credit Agreement (or such other address as specified in a written notice given by the Mortgagee to the Mortgagor in accordance with the Credit Agreement). SECTION 6.2 Severability. To the extent any provision of this Mortgage may be deemed invalid or unenforceable under any Requirement of Law, such provision shall be deemed void and inoperative and shall not form part of this Mortgage, but the remainder of this Mortgage shall remain in full force and effect. The parties hereto specifically declare that they would have entered into this Mortgage if any such void provisions had been omitted herefrom. SECTION 6.3 Governing Law. This Mortgage shall be deemed to be a contract entered into pursuant to the laws of the state of New York and shall in all respects be governed by, construed and enforced in accordance with the laws of the state of New York; provided, however, that with respect to the creation, perfection, priority and enforcement of the Lien or interest of this Mortgage, the laws of the State shall apply. Each of the parties hereto agrees that Sections 5 -1401 and 5 -1402 of the General Obligations Law of the State of New York shall apply to this Mortgage. SECTION 6.4 Stamp Tax Indemnity. Except as may be prohibited by any Requirement of Law, if at any time the United States of America, any state thereof or any governmental subdivision of such state having jurisdiction, shall require revenue, excise or documentary stamps to be affixed to this Mortgage, or other tax to be paid on or in connection therewith, the Mortgagor will promptly pay the same with any interest or penalties imposed in connection therewith. SECTION 6.5 Credit Agreement. In the event there is a conflict or inconsistency between this Mortgage and the Credit Agreement, the terms of the Credit Agreement shall control; provided that any provision of this Mortgage or any other Credit Document which imposes additional 19 018 burdens on the Mortgagor or its Subsidiaries or further restricts the rights of the Mortgagor or its Subsidiaries or gives the Administrative Agent or the Lenders additional rights shall not be deemed to be in conflict or inconsistent with this Mortgage or the Credit Agreement and shall be given full force and effect. SECTION 6.6 Waiver of Jury Trial. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY ANY REQUIREMENT OF LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS MORTGAGE, ANY OTHER CREDIT DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS MORTGAGE AND THE OTHER CREDIT DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 6.6. SECTION 6.7 Redemption. The Mortgagor, for itself and all persons receiving title from the Mortgagor, waives all rights of redemption to which the Mortgagor and those persons would otherwise be entitled if this Mortgage is at any time foreclosed. SECTION 6.8 Fixture Filings. In addition to all of its other rights under this Mortgage and otherwise, the Mortgagee and the Secured Parties shall have all of the rights of a secured party under the Code or under the Uniform Commercial Code in force from time to time in any other state to the extent the same is a Requirement of Law. This Mortgage shall be effective as a financing statement filed as a fixture filing with respect to all fixtures included within the Property and is to be filed for record in the real estate records of each county where any part of the Property (including such fixtures) is situated. This Mortgage shall also be effective as a financing statement with respect to any other Property as to which a security interest may be perfected by the filing of a financing statement and may be filed as such in any appropriate filing or recording office. The respective mailing addresses of the Mortgagor and the Mortgagee are set forth in the opening paragraph of this Mortgage. A carbon, photographic or other reproduction of this Mortgage or any other financing statement relating to this Mortgage shall be sufficient as a financing statement for any of the purposes referred to in this Section 6.8. The Mortgagor hereby irrevocably authorizes the Mortgagee at any time and from time to time to file any initial financing statements, amendments thereto and continuation statements as authorized by any Requirement of Law, to establish or maintain the validity, perfection and priority of the security interests granted in this Mortgage. SECTION 6.9 Release of Mortgage. (a) At such time as the Secured Obligations (other than obligations relating to Hedging Agreements, Specified Cash Management Agreements and other contingent indemnification obligations not then due) shall have been paid in full in cash and the Commitments have been terminated, the Property shall be released from the Lien created by this Mortgage, and this Mortgage and all obligations (other than those expressly stated to survive such termination) of the Mortgagee and the Mortgagor hereunder shall terminate, all without delivery of any instrument or performance of any act by any party, and all rights to the Property shall revert to the Mortgagor. (b) If any of the Property shall be sold, transferred or otherwise disposed of by the Mortgagor in a transaction permitted by the Credit Agreement, then the Mortgagee, at the request and sole expense 20 of the Mortgagor, shall execute and deliver to the Mortgagor all releases or other documents reasonably necessary or desirable for the release of the Liens created hereby on such Property; or if all the equity interests of the Mortgagor shall be sold, transferred or otherwise disposed of in a transaction permitted by the Credit Agreement, then, at the request of the Mortgagor, and at the expense of the Mortgagor, the Mortgagor shall be released from its obligations hereunder; provided, that in each case the Mortgagor shall have delivered to the Mortgagee, at least ten (10) Business Days prior to the date of the proposed release, a written request for release identifying the Mortgagor or the relevant Property or portion thereof (as applicable) and the terms of the sale or other disposition in reasonable detail, including the price thereof and any expenses in connection therewith, together with a certification by the Mortgagor demonstrating to the satisfaction of the Mortgagee that such transaction is in compliance with the Credit Agreement and the other Credit Documents. (c) No Secured Party or Affiliate of a Secured Party that obtains the benefits of the Property by virtue of the provisions of this Mortgage shall have any right to notice of any action or to consent to, direct or object to any action under this Section 6.9 other than in its capacity as a Secured Party and, in such case, only to the extent expressly provided in the Credit Documents. Notwithstanding any other provision of this Section 6.9 to the contrary, the Mortgagee shall not be required to verify the payment of, or that other satisfactory arrangements have been made with respect to, Secured Obligations arising under any Hedging Agreement or Specified Cash Management Agreement unless the Mortgagee has received written notice of such Secured Obligations, together with such supporting documentation as the Mortgagee may request, from the applicable Secured Party or Affiliate of a Secured Party, as the case may be. SECTION 6.10 Modification to Amend Legal Description or to Comply With State Laws. The Mortgagor hereby agrees that (i) in the event that the commitment for the title policy to be delivered to the Mortgagee pursuant to the terms of the Credit Agreement, and /or the survey to be delivered to the Mortgagee pursuant to the terms of the Credit Agreement, cover and insure a description of the Land which differs from the description contained on Exhibit A hereto, or (ii) in the event that, either prior to or following the recordation of this Mortgage, the laws of the State have been amended in a manner which would cause this Mortgage or any provision thereof to be unenforceable in any respect which would materially impair the Mortgagee's rights and/or remedies hereunder, then the Mortgagor shall execute and deliver, in each case at the Mortgagor's expense, such modification to this Mortgage as may be reasonably required by the Mortgagee and in form and content satisfactory to the Mortgagee, as may be necessary to amend Exhibit A hereto so that the description of the Land contained herein conforms to the description of the Land covered and insured by and under such title commitment or policy and survey, or to cause this Mortgage to be wholly enforceable under State law. SECTION 6.11 Successors and Assigns. This Mortgage shall inure to the benefit of and be binding upon the Mortgagor and the Mortgagee and their respective heirs, executors, legal representatives, successors, successors -in- title, and assigns. Whenever a reference is made in this Mortgage to "Mortgagor" or "Mortgagee," such reference shall be deemed to include a reference to the heirs, executors, legal representatives, successors, successors -in -title and assigns of the Mortgagor or the Mortgagee, as the case may be, but shall not imply any permission to make or permit any transfer which is otherwise prohibited. ARTICLE VII STATE SPECIFIC PROVISIONS Notwithstanding anything to the contrary which may be contained in this Mortgage, the following terms and provisions are hereby incorporated in this Mortgage and, to the extent such terms and 21 0119 provisions contradict those terms and provisions contained elsewhere in this Mortgage, the terms and provisions of this Article VII shall govern: None. [Remainder of Page Intentionally Left Blank] 22 0120 IN WITNESS WHEREOF, the Mortgagor has caused this Mortgage to be executed, sealed and delivered by its duly authorized representative, all as of the day and year first above written. STATE OF 7 COUNTY OF ,eNox [Official Seal] STATE =Ue TEN OF �;n. N ESS� Cu NO P CO 00 /1111110 MORTGAGOR: PILOT TRAVEL CENTERS LLC, a Delaware limited liability company By: Name. Title: Mitchell D. teen Sr. VP cF Personally appeared before me, a notary public, N %TZN zc_O- the C— of PILOT TRAVEL CENTERS LLC, a Delaware limited liability company, who acknowledged that s /he, being duly authorized, signed and delivered the foregoing instrument, as ge. V/ Cf-� of such limited liability company on the day and year therein mentioned. Given under my hand this the oc9 day of A.D. 20 1/: Notary Public Print Name: e !,n °s 7 Commission Expires: la 4" A'r \cf. First American Title Insurance Company Attn: Katherine Hahm 30 N. LaSalle St, Suite 2700 Chicago, IL 60602 0121 Property located in Lincoln County, WY FLYING J COKEVILLE TRACT To -wit: EXHIBIT A TO MORTGAGE, ASSIGNMENT OF LEASES AND RENTS, AND SECURITY AGREEMENT 01 That part of Tract No. 89 (SE' /4 of Section 5 original survey) of T24N, R119W, within the Town of Cokeville, Lincoln County, Wyoming, and part of that tract of Record in the Office of the Clerk of Lincoln County in Book 25 of Deeds on Page 563 and part of the Highway Addition to said Town, it being the intent to more correctly describe those tracts of Record in said Office in Book 384 of Photostatic Records on Page 300 -301, and in Book 337 of Photostatic Records on Page 296, as follows: BEGINNING at the northeast post of that tract of land of record in the Office of the Clerk of Lincoln County in Book 26 of Deeds on Page 505, S03 32' -42 "W, 1149.12 feet from the east one quarter corner of Section 5 T24N, R119W Resurvey found as described in the Corner Record filed in said Office; thence N89 08' -22 "W, 397.56 feet along the north line of said tract along a chain Link fence to a post for the northwest corner; thence S11 36' -28 "E, 181.06 feet along the west line of said tract along a chain link fence to a point on the north right -of -way line of State Highway 232; thence N89 06' -28 "W, 59.87 feet along said right -of -way line to a point for the southeast corner of that tract of land of record in said Office in Book 273 of Photostatic Records on Page 278; thence N04 18' -43 "W, 92.29 feet along the east line of said tract along a pole fence to a fence post for its northeast corner; thence N89 19' -00 "W, 50.30 feet along the north line of said tract along a pole fence to a point for the east corner of that tract of land of record in said Office in Book 337 of Photostatic Records on Page 296; thence S89 39' -39 "W, 158.93 feet along the north line and along a pole fence in part and the north line of a log shed to a fence corner; thence S08 18' -46 "E, 89.46 feet along a pole fence to a point on the north right -of -way line of State Highway 232; thence N89 06' -28 "W, 95.29 feet along said north right -of -way line to the point of intersection with the easterly right -of -way line of State Highway 30; thence N11 31' -58 "W, 360.67 feet along said easterly right -of -way line to a P -K Nail; thence continuing N11°-31'-58"W, 51.21 feet to a point; thence N78 28' -02 "E, 50.00 feet to a point; thence N11°-31'-58"W, 140.82 feet to a point; 0123 thence N59 11' -31 "E, 229.92 feet along a fence and the south line of that tract of record in Book 393 of Photostatic Records on Page 812 to a point; thence continuing along said fence and south line, N60 10' -43 "E, 133.76 feet to a point; thence continuing along said fence and south line, N61 43' -22 "E, 251.14 feet to a point; thence continuing along said fence and the south line of lands of record in Book 127 of Photostatic Records on Page 209, N61°-42'-54"E, 476.52 feet to a point; thence S64°-24'-21"E, 269.89 feet along said fence and south line to a point on the westerly right -of -way line of State Highway 232; thence southwesterly, 310.61 feet along said right -of -way line being the arc of a circular curve to the left through a central angle of 25 55' -06" with radius of 686.65 feet record with a measured chord of S11 31'-05"W, 308.48 feet to a marker for Station P. C. 21 +47.1; thence S01°-27'-46"E, 253.46 feet along said line to Station P.T. 18 +93.6; thence Southerly, 359.81 feet along said line being the arc of a circular curve to the left through a central angle of 03 34' -00" with radius of 5780.11 feet record with a measured chord of S03 18' -27 "E, 359.24 feet to a marker for Station P.C. 15 +36.9; thence S05 05' -44 "E, 175.35 feet along said line to a marker for Station P.T. 13 +61.7; thence Southwesterly, 527.77 feet along said line being the arc of a circular curve to the right through a central angle of 84 08' -07" with radius of 359.41 feet record with a measured chord of S37 03' -13 "W, 481.59 feet to a marker for Station 7 +60; thence S11°-41'-54"E, 19.05 feet along said line to a point; thence Southwesterly, 6.23 feet along said line being the are of a circular curve to the right through a central angle of 00 56' -36" with radius of 378.41 feet record with a measured chord of S79 38' -51 "W, 6.28 feet to a point; thence N00 32' -15 "E, 30.85 feet to a post, N65 27' -33 "W, 78.46 feet from the southeast corner of the NE' SE' /4 of said Section 5 found as described in the Corner Record filed in said Office; thence continuing N00 32' -15 "E, 139.51 feet along a chain link fence to the POST OF BEGINNING; ENCOMPASSING an area of 32.57 acres, more or less; SUBJECT to an easement of record in said Office in Book 394 of Photostatic Records on Page 441 for a water line of the Town of Cokeville across the foregoing tract; each point marked by a 5/8" x 24" steel reinforcing rod with aluminum cap inscribed, "SURVEYOR SCHERBEL LTD. PLS164 BIG PINEY WY" and appropriate details; each post marked by a 2 ins, steel post eight feet high set in concrete; each marker is a 6x6 ins. concrete post with brass marker inscribed, "STATE HIGHWAY DEPT FAP NO. Sta. El R.O.W. MARKER" and appropriate details; the base bearing for this survey is the east line of the south one -half of said Section 5 as N00 03' -00 "E; AND BEING the same property conveyed to CFJ Properties, a Utah partnership from V. Vernon Bailey and Cindy Bailey, husband and wife by Warranty Deed dated August 24, 1998 and recorded September 04, 1998 in Deed Book 16, Page 817; AND FURTHER CONVEYED to Flying J, Inc., and CFJ Properties from Raymond S. Petersen and Sons, Inc. and Thompson Land and Livestock Company by Quit Claim Deed dated July 19, 1998 and recorded October 01, 1998 in Deed Book 418, Page 688. Tax Parcel No. 12- 2419- 05 -4 -00- 001.00 0 124