Common use of Mortgages Clause in Contracts

Mortgages. The Company shall use commercially reasonable efforts to deliver to the Trustee and Collateral Agent as promptly as reasonably practicable after the Closing Time but in any event within 120 days of the Closing Time (subject to extension in the sole discretion of the Trustee), (a) (i) an amendment to each existing Mortgage (as defined in the “Description of Second Priority Notes” section of the Prospectus) (a “Mortgage Amendment”) on such Real Property (as defined in the “Description of Second Priority Notes” section of the Prospectus) currently subject to a Mortgage granted to the Collateral Agent duly executed and delivered by the record owner of such Real Property and the Collateral Agent sufficient to grant to the Collateral Agent for its benefit and the benefit of the Trustee and the holders of the Second Priority Notes a valid second priority mortgage lien on such Real Property and otherwise suitable for recording or filing, which Mortgage Amendment may be in a form consistent with such Mortgage amendments previously delivered to the Collateral Agent, and (ii) opinions and such other documents including, but not limited to, any consents, agreements and confirmations of third parties with respect to any such Mortgage Amendment, in each case to the extent and consistent in form and substance with such documents as have been previously delivered to the Collateral Agent, and (b) date-down endorsements to the title insurance policies previously delivered to the Collateral Agent (or in case of any Real Property located in Texas that is subject to a Mortgage Amendment, a title search together with a T-38 endorsement, or to the extent not available, a new title insurance policy), in each case consistent in form and substance with such documents as have been previously delivered to the Collateral Agent and/or the title insurance company (specifically excluding any new or updated survey), and paid for by the Company, issued by a nationally recognized title insurance company (which may be the same as the title insurance company or companies insuring the Mortgages in favor of the Collateral Agent) insuring the lien of each amended Mortgage, as a valid lien on such Real Property described therein, free of any other liens, except for Permitted Liens (as such term is defined in the “Description of Second Priority Notes” section of the Prospectus).

Mortgages. The Company shall use commercially reasonable efforts to deliver Furnish to the Trustee and Collateral Agent as promptly as reasonably practicable Administrative Agent, within 60 days --------- after the Closing Time but in any event within 120 days of the Closing Time (subject to extension in the sole discretion of the Trustee)Date, (a) (i) an amendment fully executed counterparts of deeds of trust, mortgages and similar documents in each case in form and substance reasonably satisfactory to each existing Mortgage (as defined the Administrative Agent and substantially in the “Description form of Second Priority Notes” section Exhibit L (each a "Mortgage" and collectively, the "Mortgages") covering all the -------- --------- Mortgaged Properties, and arrangements reasonably satisfactory to the Administrative Agent shall be in place by the 60th day after the Closing Date to provide that counterparts of such Mortgages shall be promptly recorded upon execution in all places to the extent necessary or desirable, in the reasonable judgment of the Prospectus) Administrative Agent, effectively to create a valid and enforceable first (a “Mortgage Amendment”) on such Real Property (as defined or, in the “Description of Second Priority Notes” section case of the Prospectus) currently subject to a Mortgage Mortgages granted to the Collateral Agent duly executed and delivered by the record owner Meditrust Entities, second) priority Lien, subject only to Permitted Liens, on each Mortgaged Property in favor of the Administrative Agent (or such Real Property and the Collateral Agent sufficient to grant to the Collateral Agent other trustee as may be required or desired under local law) for its benefit and the benefit of the Trustee and the holders of the Second Priority Notes a valid second priority mortgage lien on such Real Property and otherwise suitable for recording or filingLenders, which Mortgage Amendment may be in a form consistent with such Mortgage amendments previously delivered to the Collateral Agent, and (ii) opinions and such other documents including, but not limited to, any consents, agreements and confirmations of third parties with respect to any such Mortgage Amendment, in each case to the extent and consistent in form and substance with such documents as have been previously delivered to the Collateral Agent, and (b) date-down endorsements to the title insurance policies previously delivered to the Collateral Agent (or in case of any Real Property located in Texas that is subject to a Mortgage Amendment, a title search together with a T-38 endorsement, or to the extent not available, a new lender's title insurance policy), in each case consistent in form and substance with such documents as have been previously delivered to the Collateral Agent and/or the title insurance company (specifically excluding any new or updated survey), and paid for by the Company, issued by a nationally recognized title insurance company (which company, together with such endorsements, coinsurance and reinsurance as may be reasonably requested by the same Administrative Agent, in form and substance reasonably acceptable to the Administrative Agent, insuring each Mortgage as a first (or, in the title insurance company or companies insuring case of the Mortgages in favor of granted by the Collateral AgentMeditrust Entities, second) insuring lien on the lien relevant Mortgaged Property and subject only to Permitted Liens and Liens expressly agreed to by the Administrative Agent and (c) such other documents (including without limitation, ALTA/ASCM surveys of each amended MortgageMortgaged Property made in accordance with ALTA/ASCM standards, including Table A, Items Nos. 1-4 and 6-13 as a valid lien on such Real Property described therein, free of any other liens, except for Permitted Liens (updated by inspection) as such term is defined in are reasonably required by the “Description of Second Priority Notes” section of the Prospectus)Administrative Agent.

Mortgages. The Company Agent shall use commercially reasonable efforts have received from each Borrower Mortgages with respect to deliver to the Trustee and all Real Property Collateral Agent owned by such Borrower in fee simple as promptly as reasonably practicable after the Closing Time but in any event within 120 days of the Closing Time (subject Date, together with the following, each to extension be in the sole discretion of the Trustee), (a) form and substance satisfactory to Agent: (i) a mortgagee's title insurance policy (each a "Title Insurance Policy"), dated the Closing Date together with evidence that all premiums in respect of such Title Insurance Policy have been paid, which Title Insurance Policy shall (A) be in an amendment amount reasonably satisfactory to each existing Agent; (B) insure that the Mortgage insured thereunder creates a valid first Lien on the Real Property covered by such Mortgage free and clear of all Liens, defects and encumbrances (except those set forth in the Title Insurance Policy or otherwise reasonably acceptable to Lender); (C) name Agent as the insured party thereunder; (D) be in the form of ALTA Loan Policy 1970 (as defined in the “Description of Second Priority Notes” section of the Prospectusamended) (a “Mortgage Amendment”) on such Real Property (as defined in the “Description of Second Priority Notes” section of the Prospectus) currently subject to a Mortgage granted to the Collateral Agent duly executed and delivered or other form approved by the record owner of such Real Property and the Collateral Agent sufficient to grant to the Collateral Agent for its benefit and the benefit of the Trustee and the holders of the Second Priority Notes a valid second priority mortgage lien on such Real Property and otherwise suitable for recording or filing, which Mortgage Amendment may be in a form consistent with such Mortgage amendments previously delivered to the Collateral Agent, and (E) contain such endorsements and effective coverage as Agent may reasonably request; (ii) opinions and such other documents including, but not limited to, any consents, agreements and confirmations a physical survey containing maps or plats of third parties with respect to any such Mortgage Amendment, in each case to the extent and consistent in form and substance with such documents as have been previously delivered to perimeter or boundaries of the Collateral Agent, and (b) date-down endorsements to the title insurance policies previously delivered to the Collateral Agent (or in case of any Real Property located in Texas that is subject covered by the Mortgage, certified to a Mortgage Amendment, a title search together with a T-38 endorsement, or to the extent not available, a new title insurance policy), in each case consistent in form Agent and substance with such documents as have been previously delivered to the Collateral Agent and/or the title insurance company (specifically excluding any new or updated survey)insuring such Mortgage, in a manner acceptable to each of them, dated a date satisfactory to Agent and paid for by the Company, issued by a nationally recognized such title insurance company (which may be the same as the a "R.L.S."), by an independent professionally licensed land surveyor reasonably satisfactory to Agent and such title insurance company which survey shall indicate the following: (A) the locations on such site of all the buildings, structures and other improvements and the established building setback lines insofar as the foregoing affect the perimeter or companies insuring boundary of such property; (B) the Mortgages in favor lines of streets abutting the site and width thereof; (C) all access and other easements appurtenant to the site or necessary or desirable to use the site; (D) all roadways, paths, driveways, easements, encroachments and overhanging projections and similar encumbrances affecting the site, whether recorded, apparent from a physical inspection of the Collateral site or otherwise known to the surveyor, (E) any encroachments on any adjoining property by any building structures and improvements on the site, and (F) if the site is described as being on a filed map, a legend relating the survey to said map, all in form reasonably satisfactory to Agent) insuring ; together with certification from the lien of each amended MortgageR.L.S., reasonably satisfactory to Agent, as a valid lien on such to the location of the Real Property described therein, free of covered by the Mortgage in any other liens, except for Permitted Liens (as such term is defined in "special flood hazard" area within the “Description of Second Priority Notes” section meaning of the Prospectus)Federal Flood Disaster Protection Act of 1973; and (iii) opinions of local legal counsel to Borrowers in each State or other jurisdiction where the Mortgage is to be recorded, as to such Mortgage and such related matters as Agent may reasonably request.

Mortgages. The Company Issuer and the Guarantors shall use commercially reasonable efforts to deliver to the Trustee and Collateral Agent as promptly as reasonably practicable after the Closing Time Issue Date, but in any event within 120 days of the Closing Time Issue Date (subject to extension in the sole discretion of the TrusteeCollateral Agent), (aa)(i)(A) (i) an amendment counterparts of new Mortgages to be entered into with respect to each existing Mortgage (real property owned by the Issuer and any Guarantor which real property is, as defined of such date, subject to a mortgage in favor of the “Description Existing Second Priority Notes Collateral Agent, for the benefit of the holders of the Existing Second Priority Notes” section of the Prospectus) (a “Mortgage Amendment”) on such Real Property (as defined in the “Description of Second Priority Notes” section of the Prospectus) currently subject to a Mortgage granted to the Collateral Agent , duly executed and delivered by the record owner of such Real Property property and suitable for recording or filing or (B) amendments to the existing mortgages on such real property granted to the Existing Second Priority Notes Collateral Agent, duly executed and delivered by the record owner of such property and the Existing Second Priority Notes Collateral Agent and otherwise suitable for recording and filing, which amendments shall be in form and substance sufficient to grant to the Existing Second Priority Notes Collateral Agent Agent, for its benefit and for the benefit of the Trustee and the holders of the Second Priority Notes a valid second priority mortgage lien on such Real Property and otherwise suitable for recording or filing, which Mortgage Amendment may be in a form consistent with such Mortgage amendments previously delivered to the Collateral Agent, real property and (ii) opinions and such other documents including, but not limited to, any consents, agreements and confirmations of third parties with respect to any such new Mortgage Amendmentor mortgage amendment or property, in each case to the extent and consistent in form and substance with such documents as have been previously most recently delivered to the Existing Second Priority Notes Collateral Agent, ; and (bb)(i) in the case of each new Mortgage, a policy, policies or pro forma policy or policies or marked up unconditional binder(s) of title insurance, as applicable, together with such customary endorsements (including zoning endorsements where reasonably appropriate and available) and with respect to any such property located in a state in which a zoning endorsement is not available, with a zoning compliance letter (or updated letter) from the applicable municipality in a form consistent with that most recently delivered to the Existing Second Priority Notes Collateral Agent or such other form as is customary for such municipality, or a zoning report (or updated report) from a nationally recognized zoning reporting service (it being understood that (x) no new or updated surveys and no survey for any property for which a survey has not previously been delivered to the Existing Second Priority Notes Collateral Agent shall be required to be delivered in connection with the delivery of any title insurance policies and (y) the last survey or update delivered or certified to the Existing Second Priority Notes Collateral Agent shall be acceptable to the Collateral Agent together with an affidavit from the property owner (if required by the title company) stating there have been no substantial changes materially affecting the use of the property in the business since the date of such last survey or update, so long as the same is sufficient for the title insurance company to remove the so-called standard survey exception and issue all survey-related endorsements to the title insurance policies described in clause (b)(i) of this sentence (except where no survey has previously been delivered as noted above), in substantially the same manner and to substantially the same extent as the title company has previously insured such Persons), or (ii) in the case of mortgage amendments delivered pursuant to clause (a)(i)(B) of this paragraph, date-down endorsements to of the title insurance policies previously delivered to the Existing Second Priority Notes Collateral Agent (or in case respect of any Real Property located in Texas that is subject to a Mortgage Amendment, a title search together with a T-38 endorsement, or to the extent not available, a new title insurance policy)applicable property, in each case consistent in form and substance with such documents as have been previously delivered to the Collateral Agent and/or the title insurance company (specifically excluding any new or updated survey)case, and paid for by the Company, Issuer and issued by a nationally recognized title insurance company insuring the Lien of each such new Mortgage or mortgage amendment (which may be the same as the title insurance company or companies insuring the Mortgages mortgages in favor of the Existing Second Priority Notes Collateral Agent) insuring to be entered into on or after the lien of each amended Mortgage, Issue Date as a valid lien Lien on such Real Property the applicable property described therein, free of any other liens, Liens except for Permitted as not prohibited by Section 4.12 and Liens (as such term is defined in the “Description arising by operation of Second Priority Notes” section of the Prospectus)law.

Mortgages. The With respect to any real property (other than Non-Material Real Property) that is owned in fee simple by the Company shall use commercially reasonable efforts to deliver to or any Guarantor (collectively, the Trustee and Collateral Agent as promptly as reasonably practicable after “Premises”), the Closing Time but in any event Company or such Guarantor shall, within 120 90 days of the Closing Time later of (subject to extension in x) the sole discretion of Restatement Date and (y) the Trustee)acquisition thereof, as applicable: (a) (i) an amendment to each existing Mortgage (as defined in the “Description of Second Priority Notes” section of the Prospectus) (a “Mortgage Amendment”) on such Real Property (as defined in the “Description of Second Priority Notes” section of the Prospectus) currently subject to a Mortgage granted to the Collateral Agent duly executed and delivered by the record owner of such Real Property and the Collateral Agent sufficient to grant to the Collateral Agent for its benefit and the benefit of the Trustee and the holders of the Second Priority Notes a valid second priority mortgage lien on such Real Property and otherwise suitable for recording or filing, which Mortgage Amendment may be in a form consistent with such Mortgage amendments previously delivered deliver to the Collateral Agent, as mortgagee, for the benefit of the Holders, fully executed counterparts of Mortgages, duly executed by the Company or the applicable Guarantor, as the case may be, and corresponding Uniform Commercial Code (iior similar) opinions fixture filings, together with evidence of the completion (or satisfactory arrangements for the completion) of all recordings and filings of such other documents includingMortgages and corresponding Uniform Commercial Code (or similar) fixture filings as may be necessary to create a valid, but not limited toperfected first priority Lien in favor of the Collateral Agent, any consentssubject to Permitted Liens, agreements and confirmations of third parties with respect against the Premises purported to any such Mortgage Amendment, in each case to the extent and consistent in form and substance with such documents as have been previously delivered be covered thereby; (b) deliver to the Collateral Agent, and (bi) date-down endorsements to the mortgagee’s title insurance policies previously delivered to in favor of the Collateral Agent (or in case an amount equal to 100% of any Real Property located in Texas that is subject the fair market value of the Premises purported to a Mortgage Amendment, a title search together with a T-38 endorsement, or to the extent not available, a new title insurance policy), in each case consistent in form and substance with such documents as have been previously delivered to the Collateral Agent and/or the title insurance company (specifically excluding any new or updated survey), and paid for be covered by the Companyrelated Mortgages, issued by a nationally recognized title insurance company selected by the Company or the applicable Guarantor and reasonably satisfactory to the Representative and the Collateral Agent, insuring the Lien of each such Mortgage as a first priority Lien subject only to Permitted Liens, and such policies shall also include, to the extent available and issued at commercially reasonable rates, customary endorsements or such endorsements as the Collateral Agent may reasonably request (which may excluding endorsements related to mechanics lien coverage) and shall be accompanied by evidence of the same payment in full (or satisfactory arrangements for the payment in full) of all premiums thereon and (ii) such affidavits, certificates, instruments of indemnification and other items (including a so-called “gap” indemnification) in form and substance reasonably acceptable to the Company, the applicable Guarantor, the Collateral Agent and the Representative, as shall be reasonably required to induce the title insurer to issue the title insurance company or companies insuring the Mortgages in favor policies and endorsements referenced herein with respect to each of the Collateral Agent) insuring the lien of each amended Mortgage, as a valid lien on such Real Property described therein, free of any other liens, except for Permitted Liens (as such term is defined in the “Description of Second Priority Notes” section of the Prospectus).Premises;

Mortgages. The Company Issuer and the Subsidiary Guarantors shall use commercially reasonable efforts to deliver to the Trustee and the Collateral Agent as promptly as reasonably practicable after the Closing Time Issue Date, but in any event within 120 days of the Closing Time Issue Date (subject to extension in the sole discretion of the Trustee), (a) (ia)(i) an amendment to each existing Mortgage (as defined in the “Description of Second Priority Notes” section of the Prospectus) (a “Mortgage Amendment”) on such Real Property (as defined in the “Description of Second Priority Notes” section of the Prospectus) currently subject to a Mortgage granted to the Collateral Agent Agent, and that also secures the First Priority Lien Obligations (other than any Mortgage securing the First Priority Lien Obligations that is released prior to the end of such 120 day period (as may be extended)), duly executed and delivered by the record owner of such Real Property and the Collateral Agent sufficient to grant to the Collateral Agent Agent, for its benefit and the benefit of the Trustee and the holders of the Second Priority Notes Securities a valid second priority mortgage lien on such Real Property and otherwise suitable for recording or filing, filing which Mortgage Amendment may be in a form consistent with such Mortgage amendments previously delivered shall be in form and substance acceptable to the Collateral Agent, Agent and (ii) opinions and such other documents including, but not limited to, any consents, agreements and confirmations of third parties with respect to any such Mortgage Amendment, in each case to the extent and consistent in form and substance with such documents as have been previously delivered to the Collateral Agent, Agent and (b) date-down endorsements to the title insurance policies previously delivered to the Collateral Agent (or in case of any Real Property located in Texas that is subject to a Mortgage Amendment, a title search together with a T-38 endorsement, or to the extent not available, a new title insurance policy), in each case consistent in form and substance with such documents as have been previously delivered to the Collateral Agent and/or the title insurance company (specifically excluding any new or updated survey), and paid for by the Company, issued by a nationally recognized title insurance company (which may be the same as the title insurance company or companies insuring the Mortgages in favor of the Collateral Agent) insuring the lien of each amended Mortgage, as a valid lien Lien on such Real Property described thereinProperty, free of any other liensLiens, except for Permitted Liens (as such term is defined in the “Description of Second Priority Notes” section of the Prospectus)Liens.

Mortgages. The Company shall use commercially reasonable efforts to deliver to On the Trustee and Collateral Agent as promptly as reasonably practicable after Effective Date, the Closing Time but in any event within 120 days of the Closing Time (subject to extension in the sole discretion of the Trustee), (a) (i) an amendment to each existing Mortgage (as defined in the “Description of Second Priority Notes” section of the Prospectus) (a “Mortgage Amendment”) on such Real Property (as defined in the “Description of Second Priority Notes” section of the Prospectus) currently subject to a Mortgage granted to the Collateral Agent duly executed and delivered by the record owner of such Real Property and the Collateral Agent sufficient to grant to the Collateral Agent for its benefit and the benefit of the Trustee and the holders of the Second Priority Notes a valid second priority mortgage lien on such Real Property and otherwise suitable for recording or filing, which Mortgage Amendment may be in a form consistent with such Mortgage amendments previously delivered to the Collateral AgentBorrower will, and (ii) opinions and such other documents including, but not limited will cause each of its Subsidiaries to, any consents, agreements and confirmations of third parties with respect to any such Mortgage Amendment, in each case to the extent and consistent in form and substance with such documents as have been previously delivered to the Collateral Agent, and (b) date-down endorsements to the title insurance policies previously delivered deliver to the Collateral Agent (or in case i) fully executed counterparts of any Real Property located in Texas that is subject to a Mortgage Amendmentdeeds of trust, a title search together with a T-38 endorsement, or to the extent not available, a new title insurance policy), mortgages and similar documents in each case consistent in form and substance with such documents as have been previously delivered satisfactory to the Collateral Agent and/or (each a "Mortgage" and, collectively, the title insurance company (specifically excluding any new or updated survey)"Mortgages") covering all of the Mortgaged Properties, and paid for by counterparts of such Mortgages shall have been duly recorded in all places to the Companyextent necessary or, issued by in the judgment of the Collateral Agent, desirable, effectively to create a nationally recognized title insurance company (which may be the same as the title insurance company or companies insuring the Mortgages valid and enforceable first priority mortgage Lien, subject only to Permitted Encumbrances, on each such Mortgaged Property in favor of the Collateral AgentAgent (or such other trustee as may be required or desirable under local law) insuring for the lien benefit of each amended Mortgagethe Banks, as a (ii) mortgage title insurance policies issued by title insurers reasonably satisfactory to the Collateral Agent (the "Mortgage Policies") in amounts reasonably satisfactory to the Collateral Agent and assuring the Collateral Agent that the Mortgages in respect of the Mortgaged Properties are valid lien and enforceable first priority mortgage Liens on the respective Mortgaged Properties free and clear of all defects and encumbrances except Permitted Encumbrances, and such Real Property described therein, free of Mortgage Policies shall be in form and substance reasonably satisfactory to the Collateral Agent and shall include an endorsement for mechanic liens and for any other liensmatter that the Collateral Agent in its discretion may reasonably request and (iii) such opinions of counsel as the Collateral Agent may reasonably request in connection with such Mortgages, except for Permitted Liens (as such term is defined which opinions of counsel shall be in form and substance satisfactory to the “Description of Second Priority Notes” section of the Prospectus)Collateral Agent.

Mortgages. The Company shall use commercially reasonable efforts to deliver to the Trustee and Collateral Agent as promptly as reasonably practicable Promptly after the Closing Time but in acquisition of any event within 120 days of real property by any Loan Party, such Loan Party will furnish the Closing Time (subject to extension in the sole discretion of the Trustee)Agent, (a) (i) an amendment to each existing Mortgage (as defined in the “Description of Second Priority Notes” section of the Prospectus) (a “Mortgage Amendment”) on such Real Property (as defined in the “Description of Second Priority Notes” section of the Prospectus) currently subject to a Mortgage granted to the Collateral Agent duly executed and delivered by the record owner of such Real Property and the Collateral Agent sufficient to grant to the Collateral Agent for its benefit and the benefit of the Trustee and Lenders, with a Mortgage covering each parcel of real property acquired by such Loan Party (the holders “Mortgaged Property”), together with an ALTA extended coverage lender’s policy of title insurance in a policy amount equal to one hundred percent (100%) of the Second Priority Notes a valid second priority mortgage lien on greater of (x) the purchase price of such Real Property and otherwise suitable for recording acquired property (including any liabilities assumed in connection with the acquisition) or filing(y) the fair market value of such property, which Mortgage Amendment may be in a form consistent with insuring such Mortgage amendments previously delivered as a valid, enforceable first Lien on the Loan Party’s interest in the Mortgaged Property covered thereby, subject only to Permitted Liens and to such other exceptions as are reasonably satisfactory to the Collateral Agent, and (ii) opinions and such other documents including, but not limited to, any consents, agreements and confirmations of third parties together with an ALTA survey with respect to any such Mortgage Amendmenteach parcel of the Mortgaged Property acquired, in each case to the extent and consistent in form and substance with such documents as have been previously delivered reasonably satisfactory to the Collateral Agent, and legible copies of all documents affecting title, which shall show all recording information. The policy, including each of the exceptions to coverage contained therein, shall be subject to the approval of the Agent, and shall be issued by a title company acceptable to the Agent. Attached to the policy shall be any and all endorsements reasonably required by the Agent, including (a) a comprehensive endorsement (ALTA 100 or equivalent) covering restrictions and other matters, (b) date-down endorsements to the title insurance policies previously delivered to the Collateral Agent (or in case of any Real Property located in Texas that is subject to a Mortgage Amendment, a title search together with a T-38 broad form zoning endorsement, or to the extent not availablewhich specifically ensures that applicable parking requirements, a new title insurance policy)if any, in each case consistent in form and substance with such documents as have been previously delivered to the Collateral Agent and/or the title insurance company satisfied, (specifically excluding any new or updated survey), and paid for by the Company, issued by a nationally recognized title insurance company (which may be the same as the title insurance company or companies insuring the Mortgages in favor of the Collateral Agentc) insuring an endorsement ensuring that the lien of each amended Mortgage, as a Mortgage is valid lien against any applicable usury laws or other laws prohibiting the charging of interest on such Real Property described therein, free of any other liens, except for Permitted Liens (as such term is defined interest in the state(s) where such Mortgaged Property is located, (d) an endorsement ensuring that the Mortgaged Property has access to a dedicated public street, (e) a Revolving Loan endorsement (if available in such state), (f) a contiguity endorsement, (g) a survey and “Description of Second Priority Notessame as” section of endorsement and (h) an endorsement deleting the Prospectus)so-called “doing business” exclusion.

Mortgages. The Company Issuer and the Subsidiary Guarantors shall use commercially reasonable efforts to deliver to the Trustee and the Collateral Agent as promptly as reasonably practicable after the Closing Time Escrow Release Date, but in any event within 120 days of the Closing Time (subject to extension in the sole discretion of the Trustee)Escrow Release Date, (a) (ia)(i) an amendment to each existing Mortgage (as defined in the “Description of Second Priority Notes” section of the Prospectus) (a “Mortgage Amendment”) on such Real Property (as defined in the “Description of Second Priority Notes” section of the Prospectus) currently subject to a Mortgage granted to the Collateral Agent Agent, and that also secures the First Priority Lien Obligations, duly executed and delivered by the record owner of such Real Property and the Collateral Agent sufficient to grant to the Collateral Agent Agent, for its benefit and the benefit of the Trustee and the holders of the Second Priority Notes Securities a valid second priority mortgage lien on such Real Property and otherwise suitable for recording or filing, filing which Mortgage Amendment may be in a form consistent with such Mortgage amendments previously delivered shall be in form and substance acceptable to the Collateral Agent, Agent and (ii) opinions and such other documents including, but not limited to, any consents, agreements and confirmations of third parties with respect to any such Mortgage Amendment, in each case to the extent and consistent in form and substance with such documents as have been previously delivered to the Collateral Agent, Agent and (b) date-down endorsements to the title insurance policies previously delivered to the Collateral Agent (or in case of any Real Property located in Texas that is subject to a Mortgage Amendment, a title search together with a T-38 endorsement, or to the extent not available, a new title insurance policy), in each case consistent in form and substance with such documents as have been previously delivered to the Collateral Agent and/or the title insurance company (specifically excluding any new or updated survey), and paid for by the Company, issued by a nationally recognized title insurance company (which may be the same as the title insurance company or companies insuring the Mortgages in favor of the Collateral Agent) insuring the lien of each amended Mortgage, as a valid lien Lien on such Real Property to be entered into on or after the Escrow Release Date as a valid Lien on the applicable property described therein, free of any other liensLiens, except for Permitted Liens (as such term is defined in the “Description of Second Priority Notes” section of the Prospectus)Liens.

Mortgages. The Company shall will use its commercially reasonable efforts to complete or cause to be completed on or prior to the Issue Date all filings and other similar actions required or desirable on its part in connection with the creation, perfection, protection and/or reaffirmation of such security interests in favor of the Notes and the Guarantees. In the case of material real property that will secure the Notes Obligations and constitute Collateral (each, a “Mortgaged Property”), the Company or the applicable Grantor shall deliver to the Trustee and applicable Notes Collateral Agent as promptly as reasonably practicable Agent, within 180 days after the Closing Time but Issue Date (or such later date that the Company delivers executed mortgage amendments and related deliverables required pursuant to the amendment to the Credit Facilities to be entered into in any event within 120 days connection the Transactions): (A) a Mortgage on such property; (B) evidence that a counterpart of the Closing Time (Mortgage has been recorded or delivered to the appropriate title insurance company for recording promptly following the Issue Date, in the place necessary, to create a valid and enforceable first priority Lien, subject to extension the Intercreditor Agreements and Permitted Liens, in the sole discretion of the Trustee), (a) (i) an amendment to each existing Mortgage (as defined in the “Description of Second Priority Notes” section of the Prospectus) (a “Mortgage Amendment”) on such Real Property (as defined in the “Description of Second Priority Notes” section of the Prospectus) currently subject to a Mortgage granted to the Collateral Agent duly executed and delivered by the record owner favor of such Real Property and the Collateral Agent sufficient to grant to the Notes Collateral Agent for its benefit and the benefit of the Trustee and the holders of the Second Priority Notes a valid second priority mortgage lien on such Real Property and otherwise suitable for recording Indenture Secured Parties; (C) American Land Title Association or filing, which Mortgage Amendment may be in a form consistent with such Mortgage amendments previously delivered to the Collateral Agent, and (ii) opinions and such other documents including, but not limited to, any consents, agreements and confirmations of third parties with respect to any such Mortgage Amendment, in each case to the extent and consistent mortgagee’s title policy in form and substance with reasonably satisfactory to such Notes Collateral Agent; and (D) an opinion of counsel in the state in which such parcel of real property is located; provided that, the amount of debt secured by each Mortgage in any state that imposes a mortgage tax shall be reasonably limited to an amount not more than the sum of the Notes Obligations, Existing Secured Notes Obligations and outstanding Bank Indebtedness so as to avoid multiple mortgage tax assessments; provided further, documents required to be delivered under this Section 12.05 shall be deemed acceptable to the applicable Notes Collateral Agent if such documents are in the substantially same form as have been previously those documents delivered to the Credit Agreement Collateral Agent under the analogous provision of the Credit Agreement. Notwithstanding the foregoing, each Mortgage will cease to secure the Notes Obligations if the real property subject to such Mortgage no longer secures any Senior Secured Debt (other than the Notes) and the applicable Notes Collateral Agent, and (b) date-down endorsements to at the title insurance policies previously delivered to the Collateral Agent (or in case written request of any Real Property located in Texas that is subject to a Mortgage Amendment, a title search together with a T-38 endorsement, or to the extent not available, a new title insurance policy), in each case consistent in form and substance with such documents as have been previously delivered to the Collateral Agent and/or the title insurance company (specifically excluding any new or updated survey), and paid for by the Company, issued by a nationally recognized title insurance company (which may be and upon receipt of an Officers’ Certificate and an Opinion of Counsel each stating that all conditions precedent under this Indenture, the same Security Documents and the Intercreditor Agreement to the release of such Mortgages have been complied with and that it is permitted for the Notes Collateral Agent to release such Mortgages, shall take such actions as the title insurance company or companies insuring the reasonably required to release such Mortgages in favor of the Collateral Agent) insuring the lien of each amended Mortgage, as a valid lien on at such Real Property described therein, free of any other liens, except for Permitted Liens (time as such term is defined in the “Description of Second Priority Notes” section of the Prospectus)Mortgages are no longer required.

Mortgages. The Company In addition to the security interests created under Articles III and IV, the parties acknowledge that each Grantor shall use commercially reasonable efforts to deliver to the Trustee and Collateral Agent as promptly as reasonably practicable after the Closing Time hereof, but in any event within 120 days of the Closing Time date hereof (subject to extension in the sole discretion of the TrusteeCollateral Agent), (aa)(i) (i) an amendment counterparts of each Mortgage to be entered into with respect to each existing Mortgage (real property owned by each Grantor which real property is, as defined in the “Description of Second Priority Notes” section of the Prospectus) (a “Mortgage Amendment”) on such Real Property (as defined in the “Description of Second Priority Notes” section of the Prospectus) currently date, subject to a Mortgage granted to mortgage in favor of the Collateral Agent Term Loan Secured Parties and Revolving Facility Secured Parties, duly executed and delivered by the record owner of such Real Property property and the Collateral Agent sufficient to grant to the Collateral Agent for its benefit and the benefit of the Trustee and the holders of the Second Priority Notes a valid second priority mortgage lien on such Real Property and otherwise suitable for recording or filing, which Mortgage Amendment may be in a form consistent with such Mortgage amendments previously delivered to the Collateral Agent, filing and (ii) opinions and such other documents including, but not limited to, any consents, agreements and confirmations of third parties with respect to any such Mortgage Amendmentor property, in each case to the extent and consistent in form and substance with such documents as have been previously delivered to the Collateral Term Facility Administrative Agent and the Revolving Facility Administrative Agent, ; and (b) date-down endorsements to the a policy, policies or pro forma policy or policies or marked up unconditional binder(s) of title insurance policies previously delivered to the Collateral Agent (or in case of any Real Property located in Texas that is subject to a Mortgage Amendmentas applicable, a title search together with a T-38 endorsement, or to the extent not available, a new title insurance policy), in each case consistent in form and substance with such documents as have been previously delivered to the Collateral Agent and/or the title insurance company (specifically excluding any new or updated survey), and paid for by the Company, issued by a nationally recognized title insurance company insuring the Lien of each Mortgage (which may be the same as the title insurance company or companies insuring the Mortgages mortgages in favor of the Collateral AgentTerm Loan Secured Parties and Revolving Facility Secured Parties) insuring to be entered into on or after the lien of each amended Mortgage, date hereof as a valid lien Lien on such Real Property the applicable property described therein, free of any other liens, Liens except for Permitted Liens and Liens arising by operation of law, together with such customary endorsements (including zoning endorsements where reasonably appropriate and available), and with respect to any such property located in a state in which a zoning endorsement is not available, a zoning compliance letter from the applicable municipality in a form consistent with that previously delivered to the Term Facility Administrative Agent and Revolving Facility Administrative Agent or such other form as is customary for such term is defined municipality, or a zoning report from a nationally recognized zoning reporting service (it being understood that (x) no new or updated surveys and no survey for any property for which a survey has not previously been delivered to the Term Facility Administrative Agent and Revolving Facility Administrative Agent shall be required to be delivered in connection with the delivery of any title insurance policies and (y) the last survey or update delivered or certified to the Term Facility Administrative Agent and Revolving Facility Administrative Agent shall be acceptable to the Collateral Agent together with an affidavit from the property owner (if required by the title company) stating there have been no substantial changes materially affecting the use of the property in the “Description business since the date of Second Priority Notes” section such last survey or update, so long as the same is sufficient for the title insurance company to remove the so-called standard survey exception and issue all survey-related endorsements to the title insurance policies described in clause (b) of this sentence (except where no survey has previously been delivered as noted above), in substantially the Prospectussame manner and to substantially the same extent as the title company has previously insured such Persons).

Mortgages. The Company On the Effective Date, each Credit Party that owns a Real Property listed on Schedule 6.13 shall use commercially reasonable efforts have duly authorized, executed, had notarized, and delivered a Mortgage over such Real Property (or, if a Mortgage in favor of the Administrative Agent was previously recorded against such Real Property, a modification to deliver such Mortgage in form and substance reasonably acceptable to the Trustee and Collateral Administrative Agent as promptly as reasonably practicable after the Closing Time but in any event within 120 days of the Closing Time (subject to extension in the sole discretion of the Trustee), (a) (i) an amendment to each existing Mortgage (as defined in the “Description of Second Priority Notes” section of the Prospectus) (a “Mortgage AmendmentModification”)), which shall be in full force and effect, and shall have delivered evidence satisfactory to the Administrative Agent that each such Mortgage, as modified by the related Mortgage Modification, is a valid and enforceable perfected security interest in and mortgage lien on the respective Mortgaged Property in favor of the Administrative Agent (or such other trustee as may be required or desired under local law) for the benefit of the Secured Creditors, superior and prior to the rights of all third Persons (except that the security interest and mortgage lien created on such Mortgaged Property may be subject to the Permitted Encumbrances related thereto) and subject to no other Liens. In connection with the delivery of each such Mortgage or, other than with respect to clauses (ii), (iii) and (iv) below, each such Mortgage Modification, US Company will, and will cause each other Credit Party to, in each case unless waived by the Administrative Agent, deliver (i) a Mortgage Policy (or, with respect to a Mortgage Modification, mortgage modification and date down endorsements to the related Mortgage Policy) issued by a title insurer reasonably satisfactory to the Administrative Agent, in form and substance and in an amount reasonably satisfactory to the Administrative Agent, insuring that the Mortgage, as modified by the Mortgage Modification, is a valid and enforceable First Priority Lien on the respective property other than Permitted Encumbrances; and in conjunction therewith, such Credit Party shall have previously provided to the Administrative Agent and/or the title insurer issuing the Mortgage Policy or endorsements thereto a current title commitment from the title insurance company for such Real Property (as defined in the “Description together with copies of Second Priority Notes” section of the Prospectus) currently subject all underlying documents), an owner’s affidavit with respect to such Real Property, a Mortgage granted gap indemnity with respect to the Collateral Agent duly executed and delivered Mortgage Policy or endorsements to be issued by the record owner of such Real Property and the Collateral Agent sufficient to grant to the Collateral Agent for its benefit and the benefit of the Trustee and the holders of the Second Priority Notes a valid second priority mortgage lien on such Real Property and otherwise suitable for recording or filing, which Mortgage Amendment may be in a form consistent with such Mortgage amendments previously delivered to the Collateral Agenttitle insurer, and any other documentation reasonably requested or required by the title insurer to issue the Mortgage Policy or the endorsements, as applicable, (ii) opinions and such other documents includinga then current A.L.T.A. survey, but not limited to, any consents, agreements and confirmations certified to the Administrative Agent by a licensed surveyor sufficient to allow the issuer of third parties with respect the Mortgage Policy to any issue such Mortgage Amendment, in each case Policy without a standard survey exception (but permitting any matters that might be revealed by such A.L.T.A. survey to the extent and consistent such matters are reasonably satisfactory to the Administrative Agent), (iii) environmental due diligence in form and substance with such documents as have been previously delivered reasonably satisfactory to the Collateral Administrative Agent, (iv) a zoning report with respect to such Mortgaged Property from a consultant reasonably satisfactory to the Administrative Agent, confirming that such Mortgaged Property and the use and occupancy thereof is compliant (i.e., conforming or legal nonconforming with full right to rebuild after a casualty without needing to achieve current conformity) with the zoning ordinances and entitlements applicable thereto and is not in violation of the building ordinances applicable thereto, and (bv) datea completed “Life-down endorsements of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to the title insurance policies previously delivered to the Collateral Agent each Mortgaged Property (or in case of any Real Property located in Texas that is subject to a Mortgage Amendment, a title search together with a T-38 endorsement, or to notice about special flood hazard area status and flood disaster assistance duly executed by the extent not available, a new title insurance policy), in each case consistent in form and substance with such documents as have been previously delivered to the Collateral Agent and/or the title insurance company (specifically excluding any new or updated surveyapplicable Borrower), and paid for by if such Mortgaged Property, or any portion thereof, is in a flood zone, deliver evidence satisfactory to the Company, issued by a nationally recognized title Administrative Agent that the flood insurance company (which may required to be the same as the title insurance company or companies insuring the Mortgages maintained pursuant to Section 9.03 has been obtained and is in favor of the Collateral Agent) insuring the lien of each amended Mortgage, as a valid lien on such Real Property described therein, free of any other liens, except for Permitted Liens (as such term is defined in the “Description of Second Priority Notes” section of the Prospectus)effect.

Mortgages. The Company Issuer and the Subsidiary Guarantors shall use commercially reasonable efforts to deliver to the Trustee and the Collateral Agent as promptly as reasonably practicable after the Closing Time Issue Date, but in any event within 120 days of the Closing Time (subject to extension in the sole discretion of the Trustee)Issue Date, (aa)(i) (i) counterparts of each Mortgage or an amendment to each existing Mortgage (as defined in granted to the “Description of Second Priority Notes” section of the Prospectus) Collateral Agent (a “Mortgage Amendment”) on such ), as applicable, to be entered into with respect to each Real Property (as defined in that also secures the “Description of Second other First Priority Notes” section of the Prospectus) currently subject to a Mortgage granted to the Collateral Agent Lien Obligations, duly executed and delivered by the record owner of such Real Property and the Collateral Agent sufficient to grant to the Collateral Agent Agent, for its benefit and the benefit of the Trustee and the holders of the Second Priority Notes Securities a valid second first priority mortgage lien on such Real Property and otherwise suitable for recording or filing, filing which Mortgage Amendment or Mortgage Amendment, as applicable, may be in a form consistent with such Mortgage amendments mortgages securing the other First Priority Lien Obligations previously delivered and shall otherwise be in form and substance acceptable to the Collateral Agent, Agent and (ii) opinions and such other documents including, but not limited to, any consents, agreements and confirmations of third parties with respect to any such Mortgage Amendment, in each case to the extent and consistent in form and substance with such documents as have been previously delivered to the Collateral Agent, and (b) date-down endorsements to the title insurance policies previously delivered to the Collateral Agent (or in case of any Real Property located in Texas that is subject to a Mortgage Amendment, a title search together with a T-38 endorsement, or to the extent not available, a new title insurance policy)as applicable,, in each case consistent in form and substance with such documents as have been previously delivered to in connection with the Collateral Agent and/or the other First Priority Lien Obligations, and (b) title insurance company (specifically excluding any new policies or updated survey)title insurance date-down endorsements, as applicable, in each case consistent in form and substance with such title insurance policies as have been previously delivered in connection with the other First Priority Lien Obligations, and paid for by the Company, issued by a nationally recognized title insurance company (which may be the same as the title insurance company or companies insuring the Mortgages in favor of mortgages securing the Collateral Agentother First Priority Lien Obligations) insuring the lien of each amended MortgageMortgage or Mortgage Amendment, as applicable, as a valid lien first priority Lien on such Real Property to be entered into on or after the Issue Date as a valid Lien on the applicable property described therein, free of any other liensLiens, except for Permitted Liens (as Liens, together with such term customary endorsements, and with respect to any such property located in a state in which a zoning endorsement is defined not available, a zoning compliance letter from the applicable municipality in a form acceptable to the “Description of Second Priority Notes” section of the Prospectus)Collateral Agent.

Mortgages. The Company shall use commercially reasonable efforts to deliver to On the Trustee and Collateral Agent as promptly as reasonably practicable after Initial Borrowing Date, the Closing Time but in any event within 120 days of the Closing Time (subject to extension in the sole discretion of the Trustee)Borrower will, (a) (i) an amendment to each existing Mortgage (as defined in the “Description of Second Priority Notes” section of the Prospectus) (a “Mortgage Amendment”) on such Real Property (as defined in the “Description of Second Priority Notes” section of the Prospectus) currently subject to a Mortgage granted to the Collateral Agent duly executed and delivered by the record owner of such Real Property and the Collateral Agent sufficient to grant to the Collateral Agent for or will cause its benefit and the benefit of the Trustee and the holders of the Second Priority Notes a valid second priority mortgage lien on such Real Property and otherwise suitable for recording or filing, which Mortgage Amendment may be in a form consistent with such Mortgage amendments previously delivered to the Collateral Agent, and (ii) opinions and such other documents including, but not limited respective Subsidiary to, any consents, agreements and confirmations of third parties with respect to any such Mortgage Amendment, in each case to the extent and consistent in form and substance with such documents as have been previously delivered to the Collateral Agent, and (b) date-down endorsements to the title insurance policies previously delivered deliver to the Collateral Agent (or in case i) fully executed counterparts of any Real Property located in Texas that is subject to a Mortgage Amendmentdeeds of trust, a title search together with a T-38 endorsement, or to the extent not available, a new title insurance policy), mortgages and similar documents in each case consistent in form and substance with such documents as have been previously delivered satisfactory to the Collateral Agent and/or (each a "Mortgage" and, collectively, the title insurance company (specifically excluding any new or updated survey)"Mortgages") covering all of the Mortgaged Properties, and paid for by counterparts of such Mortgages shall have been duly recorded in all places to the Companyextent necessary or, issued by in the judgment of the Collateral Agent, desirable, effectively to create a nationally recognized title insurance company (which may be the same as the title insurance company or companies insuring the Mortgages valid and enforceable first priority mortgage Lien, subject only to Permitted Encumbrances, on each such Mortgaged Property in favor of the Collateral AgentAgent (or such other trustee as may be required or desirable under local law) insuring for the lien benefit of each amended Mortgagethe Banks, as a (ii) mortgage title insurance policies issued by title insurers reasonably satisfactory to the Collateral Agent (the "Mortgage Policies") in amounts reasonably satisfactory to the Collateral Agent and assuring the Collateral Agent that the Mortgages in respect of the Mortgaged Properties are valid lien and enforceable first priority mortgage Liens on the respective Mortgaged Properties free and clear of all defects and encumbrances except Permitted Encumbrances, and such Real Property described thereinMortgage Policies shall be in form and substance reasonably satisfactory to the Collateral Agent and shall include an endorsement, free of and for mechanic liens and for any other liensmanner that the Collateral Agent in its discretion may reasonably request and (iii) such opinions of counsel as the Collateral Agent may reasonably request in connection with such Mortgages, except for Permitted Liens (as such term is defined which opinions of counsel shall be in form and substance satisfactory to the “Description of Second Priority Notes” section of the Prospectus)Collateral Agent.

Mortgages. The Company shall use commercially reasonable efforts to deliver Duly executed originals of amendments to the Trustee Mortgages in form and Collateral substance satisfactory to Agent as promptly as reasonably practicable after the Closing Time but in any event within 120 days of the Closing Time (subject to extension in the sole discretion of the Trustee), together with: (a) (i) an amendment to each existing Mortgage (as defined in the “Description title insurance policy updates, current as-built surveys, zoning letters and certificates of Second Priority Notes” section of the Prospectus) (a “Mortgage Amendment”) on such Real Property (as defined in the “Description of Second Priority Notes” section of the Prospectus) currently subject to a Mortgage granted to the Collateral Agent duly executed and delivered by the record owner of such Real Property and the Collateral Agent sufficient to grant to the Collateral Agent for its benefit and the benefit of the Trustee and the holders of the Second Priority Notes a valid second priority mortgage lien on such Real Property and otherwise suitable for recording or filing, which Mortgage Amendment may be in a form consistent with such Mortgage amendments previously delivered to the Collateral Agent, and (ii) opinions and such other documents including, but not limited to, any consents, agreements and confirmations of third parties with respect to any such Mortgage Amendmentoccupancy, in each case to the extent and consistent satisfactory in form and substance with such documents as have been previously delivered to the Collateral Agent, in its sole discretion, to create a valid and enforceable first priority lien (subject to Permitted Encumbrances) on each Mortgaged Property in favor of Agent for the benefit of itself and Lenders (or in favor of such other trustee as my be required or desired under local law); (b) date-down endorsements to the title insurance policies previously delivered to the Collateral Agent (or evidence that counterparts of such amendments have been recorded in case of any Real Property located in Texas that is subject to a Mortgage Amendment, a title search together with a T-38 endorsement, or all places to the extent not availablenecessary or desireable in the judgment of Agent; and (c) an opinion of counsel in each state in which any Mortgaged Property is located in form and substance and from counsel satisfactory to Agent; U. AUDITED FINANCIALS; FINANCIAL CONDITION. Agent shall have received Borrower's audited Financial Statements for the twelve month period ended December 31, 2000 which have been certified by KMPG LLP, and the unaudited consolidated balance sheet of Borrower dated September 30, 2001. Borrower shall have provided Agent with its current operating statements, a new title insurance policy)consolidated balance sheet and statement of cash flows and Projections with respect to Borrower certified by its Chief Financial Officer, in each case consistent in form and substance satisfactory to Agent, and Agent shall be satisfied, in its sole discretion, with all of the foregoing. Agent shall have further received a certificate of the Chief Executive Officer and/or the Chief Financial Officer of Borrower or any other appropriate Person as determined by Agent, based on such documents as have been previously delivered Projections, to the Collateral Agent and/or effect that (a) Borrower will be Solvent upon the title insurance company (specifically excluding any new or updated survey), and paid for by the Company, issued by a nationally recognized title insurance company (which may be the same as the title insurance company or companies insuring the Mortgages in favor consummation of the Collateral Agenttransactions contemplated herein; (b) insuring the lien Projections are based upon estimates and assumptions stated therein, all of each amended Mortgagewhich Borrower believes to be reasonable and fair in light of current conditions and current facts known to Borrower and, as a valid lien on such Real Property described therein, free of any other liens, except for Permitted Liens (as such term is defined in the “Description of Second Priority Notes” section of the Prospectus)Closing Date, reflect Borrower's good faith and reasonable estimates of its future financial performance and of the other information projected therein for the period set forth therein; and (c) containing such other statements with respect to the solvency of Borrower and matters related thereto as Agent shall request.

Mortgages. The Company shall will use its commercially reasonable efforts to complete or cause to be completed on or prior to the Issue Date all filings and other similar actions required or desirable on its part in connection with the creation, perfection, protection and/or reaffirmation of such security interests in favor of the Notes and the Guarantees. In the case of material real property owned by the Company or a Grantor as of the Issue Date that will secure the Notes 105 Obligations and constitute Collateral (each, a “Mortgaged Property”), the Company or the applicable Grantor shall deliver to the Trustee and applicable Notes Collateral Agent as promptly as reasonably practicable Agent, within 180 days after the Closing Time but in any event within 120 days Issue Date: (A) a Mortgage on such property; (B) evidence that a counterpart of the Closing Time (Mortgage has been recorded or delivered to the appropriate title insurance company for recording promptly following the Issue Date, in the place necessary, to create a valid and enforceable first priority Lien, subject to extension the Intercreditor Agreements and Permitted Liens, in the sole discretion of the Trustee), (a) (i) an amendment to each existing Mortgage (as defined in the “Description of Second Priority Notes” section of the Prospectus) (a “Mortgage Amendment”) on such Real Property (as defined in the “Description of Second Priority Notes” section of the Prospectus) currently subject to a Mortgage granted to the Collateral Agent duly executed and delivered by the record owner favor of such Real Property and the Collateral Agent sufficient to grant to the Notes Collateral Agent for its benefit and the benefit of the Trustee and the holders of the Second Priority Notes a valid second priority mortgage lien on such Real Property and otherwise suitable for recording Indenture Secured Parties; (C) American Land Title Association or filing, which Mortgage Amendment may be in a form consistent with such Mortgage amendments previously delivered to the Collateral Agent, and (ii) opinions and such other documents including, but not limited to, any consents, agreements and confirmations of third parties with respect to any such Mortgage Amendment, in each case to the extent and consistent mortgagee’s title policy in form and substance with reasonably satisfactory to such Notes Collateral Agent; and (D) an opinion of counsel in the state in which such parcel of real property is located; provided that, the amount of debt secured by each Mortgage in any state that imposes a mortgage tax shall be reasonably limited to an amount not more than the sum of the Notes Obligations, Existing Secured Notes Obligations and outstanding Bank Indebtedness so as to avoid multiple mortgage tax assessments; provided further, documents required to be delivered under this Section 12.05 shall be deemed acceptable to the applicable Notes Collateral Agent if such documents are in the substantially same form as have been previously those documents delivered to the Credit Agreement Collateral Agent under the analogous provision of the Credit Agreement. Notwithstanding the foregoing, each Mortgage will cease to secure the Notes Obligations if the real property subject to such Mortgage no longer secures any Senior Secured Debt (other than the Notes) and the applicable Notes Collateral Agent, and (b) date-down endorsements to at the title insurance policies previously delivered to the Collateral Agent (or in case written request of any Real Property located in Texas that is subject to a Mortgage Amendment, a title search together with a T-38 endorsement, or to the extent not available, a new title insurance policy), in each case consistent in form and substance with such documents as have been previously delivered to the Collateral Agent and/or the title insurance company (specifically excluding any new or updated survey), and paid for by the Company, issued by a nationally recognized title insurance company (which may be and upon receipt of an Officers’ Certificate and an Opinion of Counsel each stating that all conditions precedent under this Indenture, the same Security Documents and the Intercreditor Agreement to the release of such Mortgages have been complied with and that it is permitted for the Notes Collateral Agent to release such Mortgages, shall take such actions as the title insurance company or companies insuring the reasonably required to release such Mortgages in favor of the Collateral Agent) insuring the lien of each amended Mortgage, as a valid lien on at such Real Property described therein, free of any other liens, except for Permitted Liens (time as such term is defined in the “Description of Second Priority Notes” section of the Prospectus)Mortgages are no longer required.

Mortgages. The Company Issuer and the Subsidiary Guarantors shall use commercially reasonable efforts to deliver to the Trustee and the Collateral Agent as promptly as reasonably practicable after the Closing Time Escrow Release Date, but in any event within 120 days of the Closing Time (subject to extension in the sole discretion of the Trustee)Escrow Release Date, (aa)(i) (i) an amendment counterparts of each Mortgage to be entered into with respect to each existing Mortgage (as defined in the “Description of Second Priority Notes” section of the Prospectus) (a “Mortgage Amendment”) on such Real Property (as defined in that also secures the “Description of Second other First Priority Notes” section of the Prospectus) currently subject to a Mortgage granted to the Collateral Agent Lien Obligations, duly executed and delivered by the record owner of such Real Property and the Collateral Agent sufficient to grant to the Collateral Agent Agent, for its benefit and the benefit of the Trustee and the holders of the Second Priority Notes Securities a valid second first priority mortgage lien on such Real Property and otherwise suitable for recording or filing, filing which Mortgage Amendment may be in a form consistent with such Mortgage amendments mortgages securing the other First Priority Lien Obligations previously delivered and shall otherwise be in form and substance acceptable to the Collateral Agent, Agent and (ii) opinions and such other documents including, but not limited to, any consents, agreements and confirmations of third parties with respect to any such Mortgage Amendment, in each case to the extent and consistent in form and substance with such documents as have been previously delivered to the Collateral Agent, and (b) date-down endorsements to the title insurance policies previously delivered to the Collateral Agent (or in case of any Real Property located in Texas that is subject to a Mortgage Amendment, a title search together with a T-38 endorsement, or to the extent not available, a new title insurance policy)Mortgage, in each case consistent in form and substance with such documents as have been previously delivered to in connection with the Collateral Agent and/or the other First Priority Lien Obligations, and (b) title insurance company (specifically excluding any new or updated survey)policies, in each case consistent in form and substance with such title insurance policies as have been previously delivered in connection with the other First Priority Lien Obligations, and paid for by the Company, issued by a nationally recognized title insurance company (which may be the same as the title insurance company or companies insuring the Mortgages in favor of mortgages securing the Collateral Agentother First Priority Lien Obligations) insuring the lien of each amended Mortgage, as a valid lien first priority Lien on such Real Property to be entered into on or after the Escrow Release Date as a valid Lien on the applicable property described therein, free of any other liensLiens, except for Permitted Liens (as Liens, together with such term customary endorsements, and with respect to any such property located in a state in which a zoning endorsement is defined not available, a zoning compliance letter from the applicable municipality in a form acceptable to the “Description of Second Priority Notes” section of the Prospectus)Collateral Agent.

Mortgages. The At all times on and after March 31, 2010, the Company shall use commercially reasonable efforts have, and shall have caused its Subsidiaries to deliver have, executed and delivered to the Trustee and Collateral Agent as promptly as reasonably practicable after and the Closing Time but in any event within 120 days holders of the Closing Time (subject to extension Notes such mortgages and leasehold mortgages in the sole discretion favor of the Trustee), (a) (i) an amendment to each existing Mortgage Collateral Agent for the benefit of the Bank and the holders of the Notes securing the Senior Indebtedness (as defined in the Intercreditor Agreement) (the “Description of Second Priority Notes” section Mortgages”), each in form and substance satisfactory to the Required Holders, on such real property owned or leased by the Company and its Subsidiaries as the Required Holders deem necessary in their sole discretion, each duly filed and recorded in all such places so as to perfect the liens intended to be created thereby, provided that the holders of the Prospectus) (a “Mortgage Amendment”) on such Real Property Notes will not require the Company to deliver or maintain any Mortgages in addition to the Mortgages then in effect to the extent that the Company has demonstrated to the holders of the Notes that the aggregate Fair Market Value of all real property subject to the Mortgages then in effect exceeds 250% of the aggregate outstanding principal amount of the Senior Indebtedness (as defined in the “Description of Second Priority Notes” section Intercreditor Agreement) plus any unused commitments under the Credit Agreement at such time. No later than September 30, 2009 the Company shall submit to each holder of the Prospectus) currently Notes a proposed list of appraisers for the real property owned or leased by the Company and its Subsidiaries. With respect to the real estate subject to a Mortgage granted each Mortgage, the Company shall have delivered to the Collateral Agent duly executed and delivered by the record owner of such Real Property and the Collateral Agent sufficient to grant to the Collateral Agent for its benefit and the benefit of the Trustee and the holders of the Second Priority Notes a valid second priority mortgage lien on such Real Property and otherwise suitable for recording Notes, at or filing, which Mortgage Amendment may be in a form consistent with before the time such Mortgage amendments previously is delivered to the Collateral Agent, and (iia) opinions and such other documents includingfrom a title company acceptable to the Required Holders, but not limited to, any consents, agreements and confirmations of third parties with respect a prepaid mortgagee title insurance policy in form acceptable to any such Mortgage Amendmentthe Required Holders, in each case an amount at least equal to the extent estimated fair market value of such real estate and consistent in form and substance with such documents as have been previously delivered to the Collateral Agentimprovements thereon, and (b) date-down endorsements to the title insurance policies previously delivered to the Collateral Agent (or in case of any Real Property located in Texas that is subject to a Mortgage Amendment, a title search together with a T-38 endorsement, or to the extent not available, a new title insurance policy), in each case consistent in form and substance with such documents as have been previously delivered to the Collateral Agent and/or the title insurance company (specifically excluding any new or updated survey), and paid for by the Company, issued by a nationally recognized title insurance company (which may be the same as the title insurance company or companies insuring the Mortgages in favor of the Collateral Agent) insuring the lien of each amended Mortgage, such mortgage with respect to such real estate as a valid valid, prior lien on such Real Property described thereinreal estate subject only to such exceptions as shall be approved by the Required Holders and containing such endorsements as may be required by the Required Holders, free (b) an ALTA/ACSM Land Title Survey with respect to such real estate, dated (or updated and recertified) as of any other liensa recent date, except for Permitted Liens (as such term is defined certified to the holders of the Notes by a land surveyor licensed in the “Description of Second Priority Notes” section jurisdiction in which such real estate is located, and satisfactory to the Required Holders, and (c) a Phase 1 environmental assessment, and such additional environmental assessments and reports as the Required Holders may request, satisfactory to the Required Holders, and each holder of the Prospectus)Notes shall be satisfied with the environmental condition of such real estate. Notwithstanding the foregoing, if the aggregate outstanding principal amount of the Notes on September 30, 2009 is equal to or less than $5,000,000, then the Company shall not be required to deliver a list of appraisers to the holders of the Notes on such date, and all the other provisions of this paragraph 5J, including without limitation the requirement to deliver Mortgages, shall be of no further force and effect.”

Mortgages. The Company In addition to the security interests created under Articles III and IV, the parties acknowledge that each Grantor shall use commercially reasonable efforts to deliver to the Trustee and Collateral Agent as promptly as reasonably practicable after the Closing Time but practicable, in any event within 120 days from the date of the Closing Time (subject to extension in the sole discretion of the Trustee)Indenture, (a) (i) an amendment counterparts of each Mortgage to be entered into with respect to each existing Mortgage (as defined in the “Description of Second Priority Notes” section of the Prospectus) (a “Mortgage Amendment”) on such Real Property (as defined identified in the “Description of Second Priority Notes” section of the Prospectus) Schedule V owned by a Grantor, which Real Property is currently subject to a Mortgage granted to in favor of the Collateral Agent secured parties under the Security Agreement, duly executed and delivered by the record owner of such Real Property property and the Collateral Agent sufficient to grant to the Collateral Agent for its benefit and the benefit of the Trustee and the holders of the Second Priority Notes a valid second priority mortgage lien on such Real Property and otherwise suitable for recording or filing, which Mortgage Amendment may be in a form consistent with such Mortgage amendments previously delivered to the Collateral Agent, and (ii) opinions filing and such other documents including, but not limited to, any consents, agreements and confirmations of third parties with respect to any such Mortgage Amendment, in each case to the extent and consistent in form and substance with such documents as have been previously delivered to the Collateral Agent, and (b) date-down endorsements to the title insurance policies previously delivered to the Collateral Agent (or in case of any Real Property located in Texas that is subject to a Mortgage Amendment, a title search together with a T-38 endorsement, or to the extent not available, a new title insurance policy)property, in each case consistent in form and substance with such documents as have been previously delivered to the Collateral Term Facility Administrative Agent and/or and the Revolving Facility Administrative Agent, and (b) a policy, policies or pro forma policy or policies or marked up unconditional binder(s) of title insurance company or foreign equivalent thereof (specifically excluding if any new or updated surveyand if available), and as applicable, paid for by the Company, issued by a nationally recognized title insurance company insuring the lien of each mortgage (which may be the same as the title insurance company or companies insuring the Mortgages in favor of the Collateral Agentsecured parties under the Security Agreement) insuring to be entered into on or after the lien of each amended Mortgage, date hereof as a valid lien on such Real Property the applicable property described therein, free of any other liens, except for Permitted Liens and liens arising by operation of law, together with such customary endorsements (including zoning endorsements where reasonably appropriate and available), and with respect to any such property located in a state in which a zoning endorsement is not available, a zoning compliance letter from the applicable municipality in a form consistent with that previously delivered to the Term Facility Administrative Agent and Revolving Facility Administrative Agent or such other form as is customary for such term is defined municipality (it being understood that (x) no new or updated surveys shall be required to be delivered in connection with the delivery of any title insurance policies and (y) the last survey or update delivered or certified to the Term Facility Administrative Agent and Revolving Facility Administrative Agent shall be acceptable to the Collateral Agent together with an affidavit from the property owner (if required by the title company) stating there have been no substantial changes materially affecting the use of the property in the “Description business since the date of Second Priority Notes” section such last survey or update, so long as the same is sufficient for the title insurance company to remove the so-called standard survey exception and issue all survey-related endorsements to the title insurance policies described in clause (b) of this sentence, in substantially the Prospectussame manner and to substantially the same extent as the title company has previously insured such persons).

Mortgages. The Company Issuer and the Subsidiary Guarantors shall use commercially reasonable efforts to deliver to the Trustee and the Collateral Agent as promptly as reasonably practicable after the Closing Time Issue Date, but in any event within 120 days of the Closing Time Issue Date (subject to extension in the sole discretion of the Trustee), (a) (ia)(i) an amendment to each existing Mortgage (as defined in the “Description of Second Priority Notes” section of the Prospectus) (a “Mortgage Amendment”) on such Real Property (subject as defined in the “Description of Second Priority Notes” section of the Prospectus) currently subject Issue Date to a Mortgage granted to the Collateral Agent Agent, duly executed and delivered by the record owner of such Real Property and the Collateral Agent sufficient to grant to the Collateral Agent Agent, for its benefit and the benefit of the Trustee and the holders of the Second Priority Notes a valid second priority mortgage lien on such Real Property and otherwise suitable for recording or filing, which Mortgage Amendment may be in a form consistent with such Mortgage amendments previously delivered to the Collateral Agent, and (ii) opinions and such other documents including, but not limited to, any consents, agreements and confirmations of third parties with respect to any such Mortgage Amendment, in each case to the extent and consistent in form and substance with such documents as have been previously delivered to the Collateral Agent, Agent and (b) date-down endorsements to the title insurance policies previously delivered to the Collateral Agent (or in case of any Real Property located in Texas that is subject to a Mortgage Amendment, a title search together with a T-38 endorsement, or to the extent not available, a new title insurance policy), in each case consistent in form and substance with such documents as have been previously delivered to the Collateral Agent and/or the title insurance company (specifically excluding any new or updated survey), and paid for by the Company, issued by a nationally recognized title insurance company (which may be the same as the title insurance company or companies insuring the Mortgages in favor of the Collateral Agent) insuring the lien of each amended Mortgage, as a valid lien on such Real Property described therein, free of any other liensLiens, except for Permitted Liens (as such term is defined in the “Description of Second Priority Notes” section of the Prospectus)Liens.

Mortgages. The Company If at any time during the period commencing on the Amendment Effective Date until the Covenant Compliance Date, any of the following events occurs: (i) the Available Liquidity shall use commercially reasonable efforts be less than $270,000,000 as reported as of the last day of any calendar month in a certificate of a Financial Officer of the Borrower delivered pursuant to Section 5.01(g), (ii) the Borrower shall fail to deliver the certificate of a Financial Officer of the Borrower pursuant to Section 5.01(g) and such failure continues for five (5) days after written notice by the Administrative Agent to the Trustee Borrower, (iii) as at the end of any fiscal quarter of the Borrower, the ratio of Combined EBITDA to Fixed Charges (the “Fixed Charge Coverage 77 Ratio”), each for the period of four consecutive fiscal quarters then ended, shall be less than 1.25 to 1.00, or (iv) the Borrower shall fail to deliver the compliance certificate as to the Fixed Charge Coverage Ratio when due under Section 5.01(d) and Collateral such failure continues for five (5) days after written notice by the Administrative Agent as promptly as reasonably practicable (the occurrence of any such event, the “Mortgage Trigger”), then the Obligations shall also be secured by Liens (subject to Permitted Encumbrances) on the Eligible Unencumbered Assets in accordance with the procedures set forth below. Within forty-five (45) days after the Closing Time but Date (or such longer period as may be necessary, in any event within 120 days the reasonable judgment of the Closing Time (subject to extension Administrative Agent, so long as the Borrower is working in the sole discretion of the Trusteegood faith), (a) (i) an amendment to each existing Mortgage (as defined in the “Description of Second Priority Notes” section of the Prospectus) (a “Mortgage Amendment”) on such Real Property (as defined in the “Description of Second Priority Notes” section of the Prospectus) currently subject to a Mortgage granted to the Collateral Agent duly executed and delivered by the record owner of such Real Property Borrower and the Collateral Agent sufficient to grant to shall prepare Mortgages on the Collateral Agent for its benefit Eligible Unencumbered Assets in form and the benefit of the Trustee and the holders of the Second Priority Notes a valid second priority mortgage lien on such Real Property and otherwise suitable for recording or filing, which Mortgage Amendment may be in a form consistent with such Mortgage amendments previously delivered substance satisfactory to the Collateral Agent, and Borrower shall (iix) opinions and confirm in writing that such other documents including, but not limited to, any consents, agreements and confirmations of third parties with respect to any such Mortgage Amendment, in each case to the extent and consistent in form and substance with such documents as Mortgages have been previously delivered approved by the Borrower for filing and recording upon the occurrence of the Mortgage Trigger in accordance herewith and (y) shall cause its applicable Subsidiaries to execute, notarize and deliver original signature pages to each of the Mortgages to the Collateral Agent, which the Collateral Agent shall hold in accordance with this Section 5.12(b), and (z) deliver the Mortgage Collateral Deliverables described in clauses (a)(ii) and (iii) of the definition thereof. If the Mortgage Trigger occurs, (a) the Collateral Agent shall be authorized to attach the signature pages and record and file the Mortgages, (b) date-down endorsements to the title insurance policies previously delivered Borrower shall pay to the Collateral Agent (or in case of any Real Property located in Texas that is subject to a Mortgage Amendment, a title search together with a T-38 endorsement, or to the extent not available, a new title insurance policy), in each case consistent in form and substance with such documents as have been previously delivered provide to the Collateral Agent and/or reasonably satisfactory evidence of the payment in full of) any and all title company service charges, record and lien search charges, filing fees and charges, mortgage recording taxes and intangible taxes incurred in connection with the Mortgages, all of which the Borrower hereby promises to pay, and (c) the Borrower shall, within thirty (30) days after the Mortgage Trigger (or such longer period as may be necessary, in the reasonable judgment of the Administrative Agent, so long as the Borrower is working in good faith), deliver (or otherwise cooperate with the Collateral Agent to obtain) the Mortgage Collateral Deliverables (if not previously delivered) with respect to the Eligible Unencumbered Assets and those items required by Section 4.01(c); provided that, except as expressly provided in the definition of Mortgage Collateral Deliverables, there shall be no requirements that the contents of such Mortgage Collateral Deliverables be acceptable to the Administrative Agent or the Lenders. The Borrower, on behalf of itself and the other Loan Parties, acknowledges and agrees that the Collateral Agent’s authorization to file and record the Mortgages shall not be subject to any condition, occurrence or consent other than the occurrence of the Mortgage Trigger, and the Borrower, on behalf of itself and the other Loan Parties, hereby irrevocably authorizes the Collateral Agent to file and record the Mortgages if the Mortgage Trigger occurs. Notwithstanding the foregoing, the Mortgages will not be filed or recorded unless and until the Collateral Agent reasonably concludes that the Lenders have completed their required due diligence in respect of the Flood Laws and a Mortgage will not be filed or recorded on any property located in a Special Flood Hazard Area as designated by the Federal Emergency Management Agency in connection with the National Flood Insurance Program, unless the Borrower has obtained flood insurance company under the National Flood Insurance Program that is satisfactory to the Administrative Agent and all of the Lenders (specifically excluding and any new or updated surveyadditional flood insurance required by the Administrative Agent). If the Mortgage Trigger occurs, the Collateral Agent shall also order Appraisals of the Eligible Unencumbered Assets on behalf of the Lenders for regulatory and informational purposes at the cost and expense of the Borrower (which the Borrower hereby agrees to pay), and paid for by the Company, issued by a nationally recognized title insurance company (which may be the same as the title insurance company or companies insuring the Mortgages in favor of Borrower and its Subsidiaries shall cooperate with the Collateral Agent) insuring the lien of each amended Mortgage, as a valid lien on ’s efforts to obtain such Real Property described therein, free of any other liens, except for Permitted Liens (as such term is defined in the “Description of Second Priority Notes” section of the Prospectus)Appraisals.

Mortgages. The Company On or prior to November 15, 2012, the Borrower shall use commercially reasonable efforts to deliver have delivered to the Trustee and Collateral Agent as promptly as reasonably practicable after the Closing Time but in any event within 120 days of the Closing Time (subject to extension in the sole discretion of the Trustee)Lender, for each Premises: (a) (i) a title policy and a lender's title insurance binder issued by an amendment insurance company authorized to each existing Mortgage (as defined transact business in the “Description of Second Priority Notes” section of state where the Prospectus) (a “Premises referred to in such Mortgage Amendment”) on such Real Property (as defined in the “Description of Second Priority Notes” section of the Prospectus) currently subject to a Mortgage granted is located and acceptable to the Collateral Agent Lender naming the Lender as insured and insuring that the applicable Mortgage creates a continuing, valid lien on the Property prior to all Liens (other than Permitted Liens), fully securing the Loans and on terms and conditions satisfactory to the Lender, (b) a Mortgage, duly executed and delivered by the record owner of such Real Property and the Collateral Agent sufficient to grant to the Collateral Agent for its benefit and the benefit of the Trustee and the holders of the Second Priority Notes a valid second priority mortgage lien on such Real Property and otherwise suitable for recording or filingBorrower, which Mortgage Amendment may be in a form consistent with such Mortgage amendments previously delivered to the Collateral Agent, and (ii) opinions and such other documents including, but not limited to, any consents, agreements and confirmations of third parties with respect to any such Mortgage Amendmenteach Premises, in each case to the extent and consistent in form and substance with such documents as have been previously delivered satisfactory to the Collateral AgentLender; (c) copies of all environmental reports with respect to the Premises, including an updated environmental report at the reasonable option of the Lender, (d) evidence that such Premises is not located in a Federally designated “special flood hazard area” or if such Premises is located in a Federally designated “special flood hazard area,” a flood insurance policy with terms and coverage satisfactory to the Lender, (e) a current legal description and updated survey of each of the Premises, certified to the Lender and the title company, (f) a certificate of insurance from an independent insurance broker confirming the insurance required to be maintained pursuant to the Mortgages, naming the Lender as mortgagee and loss payee with respect to such insurance, and (bg) date-down endorsements such other documents, promissory notes, agreements and information, including opinions of counsel, that the Lender may reasonably request. The Borrower further agrees to the pay all title insurance policies previously delivered to the Collateral Agent (or in case of any Real Property located in Texas that is subject to a Mortgage Amendmentpremiums, a title search together with a T-38 endorsement, or to the extent not available, a new title insurance policy), in each case consistent in form recording and substance with such documents as have been previously delivered to the Collateral Agent and/or the title insurance company (specifically excluding any new or updated survey), filing fees and paid for charges and other expenses incurred by the Company, issued by a nationally recognized title insurance company (which may be Lender in connection with the same as the title insurance company or companies insuring recording of the Mortgages in favor and the delivery of the Collateral Agent) insuring the lien of each amended Mortgage, as a valid lien on such Real Property described therein, free of any other liens, except for Permitted Liens (as such term is defined in the “Description of Second Priority Notes” section of the Prospectus)documents required pursuant to this Section 6.20.

Mortgages. The Company shall use commercially reasonable efforts to deliver to the Trustee and Collateral Agent as promptly as reasonably practicable after the Closing Time but in any event within 120 days Each of the Closing Time (Mortgages creates the Liens and/or assignments which it purports to create, and the Mortgages and financing statements under the UCC in respect of the Mortgages have been duly filed and recorded in such manner and in such places as are required by applicable law in order to create, preserve and protect the respective Liens thereof Amended and Restated Revolving Loan Agreement 32 on the Collateral Properties and the assignment thereunder of any leases and rents, and to perfect the security interests created thereby in all of the Collateral Properties as to which a security interest may be perfected by the filing of a financial statement under the UCC, and all taxes, fees and other governmental charges due in connection with such recordings and filings have been paid; the Mortgages constitute valid, binding and enforceable first priority mortgage Liens on the Collateral Properties constituting real property in favor of the Lender, subject only to extension Liens for real estate taxes and assessment not yet delinquent and other Liens expressly permitted by the respective Mortgages; the Mortgages create valid, binding and enforceable first priority security interests in and Liens on the Collateral Properties in the sole discretion nature of the Trustee), (a) (i) an amendment to each existing Mortgage (as defined in the “Description of Second Priority Notes” section of the Prospectus) (a “Mortgage Amendment”) on such Real Property (as defined in the “Description of Second Priority Notes” section of the Prospectus) currently subject to a Mortgage granted to the Collateral Agent duly executed fixtures and delivered personalty that can be encumbered by the record owner of such Real Property and the Collateral Agent sufficient to grant to the Collateral Agent for its benefit and the benefit of the Trustee and the holders of the Second Priority Notes a valid second priority mortgage lien on such Real Property and otherwise suitable for recording or filingMortgage and, which Mortgage Amendment may be in a form consistent with such Mortgage amendments previously delivered to the Collateral Agent, and (ii) opinions and such other documents including, but not limited to, any consents, agreements and confirmations of third parties with respect to any all Collateral Properties in the nature of personal property as to which a security interest may be perfected by the filing of a financing statement under the UCC, a perfected security interest in all such Mortgage AmendmentCollateral Properties, in each case a favor of the Lender, subject only to the extent and consistent in form and substance with such documents as have been previously delivered to the Collateral Agent, and (b) date-down endorsements to the title insurance policies previously delivered to the Collateral Agent (or in case of any Real Property located in Texas that is subject to a Mortgage Amendment, a title search together with a T-38 endorsement, or to the extent not available, a new title insurance policy), in each case consistent in form and substance with such documents as have been previously delivered to the Collateral Agent and/or the title insurance company (specifically excluding any new or updated survey), and paid for Liens expressly permitted by the Companyrespective Mortgages; and each Assignment creates a valid, issued by a nationally recognized title insurance company (which may be binding and enforceable first priority assignment of and Lien on the same as the title insurance company or companies insuring the Mortgages rents, incomes, agreements and leases referred to therein in favor of the Collateral Agent) insuring the lien of each amended Mortgage, as a valid lien on such Real Property described therein, free of any other liens, except for Permitted Liens (as such term is defined in the “Description of Second Priority Notes” section of the Prospectus)Lender.

Mortgages. The Company On the Effective Date, each Credit Party that owns a Real Property listed on Schedule 6.13 shall use commercially reasonable efforts have duly authorized, executed, had notarized, and delivered a Mortgage over such Real Property (or, if a Mortgage in favor of the Administrative Agent was previously recorded against such Real Property, a modification to deliver such Mortgage in form and substance reasonably acceptable to the Trustee and Collateral Administrative Agent as promptly as reasonably practicable after the Closing Time but in any event within 120 days of the Closing Time (subject to extension in the sole discretion of the Trustee), (a) (i) an amendment to each existing Mortgage (as defined in the “Description of Second Priority Notes” section of the Prospectus) (a “Mortgage AmendmentModification”)), which shall be in full force and effect, and shall have delivered evidence satisfactory to the Administrative Agent that each such Mortgage, as modified by the related Mortgage Modification, is a valid and enforceable perfected security interest in and mortgage lien on the respective Mortgaged Property in favor of the Administrative Agent (or such other trustee as may be required or desired under local law) for the benefit of the Secured Creditors, superior and prior to the rights of all third Persons (except that the security interest and mortgage lien created on such Mortgaged Property may be subject to the Permitted Encumbrances related thereto) and subject to no other Liens. In connection with the delivery of each such Mortgage or Mortgage Modification, US Company will, and will cause each other Credit Party to, in each case unless waived by the Administrative Agent, deliver (i) a Mortgage Policy (or, with respect to a Mortgage Modification, mortgage modification and date down endorsements to the related Mortgage Policy) issued by a title insurer reasonably satisfactory to the Administrative Agent, in form and substance and in an amount reasonably satisfactory to the Administrative Agent, insuring that the Mortgage, as modified by the Mortgage Modification, is a valid and enforceable First Priority Lien on the respective property other than Permitted Encumbrances; and in conjunction therewith, such Credit Party shall have previously provided to the Administrative Agent and/or the title insurer issuing the Mortgage Policy or endorsements thereto a current title commitment from the title insurance company for such Real Property (as defined in the “Description together with copies of Second Priority Notes” section of the Prospectus) currently subject all underlying documents), an owner’s affidavit with respect to such Real Property, a Mortgage granted gap indemnity with respect to the Collateral Agent duly executed and delivered Mortgage Policy or endorsements to be issued by the record owner of such Real Property and the Collateral Agent sufficient to grant to the Collateral Agent for its benefit and the benefit of the Trustee and the holders of the Second Priority Notes a valid second priority mortgage lien on such Real Property and otherwise suitable for recording or filing, which Mortgage Amendment may be in a form consistent with such Mortgage amendments previously delivered to the Collateral Agenttitle insurer, and any other documentation reasonably requested or required by the title insurer to issue the Mortgage Policy or the endorsements, as applicable, (ii) opinions and such other documents includinga then current A.L.T.A. survey, but not limited to, any consents, agreements and confirmations certified to the Administrative Agent by a licensed surveyor sufficient to allow the issuer of third parties with respect the Mortgage Policy to any issue such Mortgage AmendmentPolicy without a survey exception, in each case to the extent and consistent (iii) environmental due diligence in form and substance with such documents as have been previously delivered reasonably satisfactory to the Collateral Agent, Administrative Agent and (biv) datea completed “Life-down endorsements of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to the title insurance policies previously delivered to the Collateral Agent each Mortgaged Property (or in case of any Real Property located in Texas that is subject to a Mortgage Amendment, a title search together with a T-38 endorsement, or to notice about special flood hazard area status and flood disaster assistance duly executed by the extent not available, a new title insurance policy), in each case consistent in form and substance with such documents as have been previously delivered to the Collateral Agent and/or the title insurance company (specifically excluding any new or updated surveyapplicable Borrower), and paid for by if such Mortgaged Property, or any portion thereof, is in a flood zone, deliver evidence satisfactory to the Company, issued by a nationally recognized title Administrative Agent that the flood insurance company (which may required to be the same as the title insurance company or companies insuring the Mortgages maintained pursuant to Section 9.03 has been obtained and is in favor of the Collateral Agent) insuring the lien of each amended Mortgage, as a valid lien on such Real Property described therein, free of any other liens, except for Permitted Liens (as such term is defined in the “Description of Second Priority Notes” section of the Prospectus)effect.

Mortgages. The At all times on and after November 21, 2008, the Company shall use commercially reasonable efforts have, and shall have caused its Subsidiaries to deliver have, executed and delivered to the Trustee and Collateral Agent as promptly as reasonably practicable after and the Closing Time but in any event within 120 days holders of the Closing Time (subject to extension Notes such mortgages and leasehold mortgages in the sole discretion favor of the Trustee), (a) (i) an amendment to each existing Mortgage Collateral Agent for the benefit of the Bank and the holders of the Notes securing the Senior Indebtedness (as defined in the Intercreditor Agreement) (the “Description of Second Priority Notes” section Mortgages”), each in form and substance satisfactory to the Required Holders, so that substantially all (or such lesser amount as is consistent with Prudential Capital Group’s reasonable practices for similar transactions under similar circumstances) of the Prospectus) (a “Mortgage Amendment”) on such Real Property (as defined in real property owned or leased by the “Description of Second Priority Notes” section of the Prospectus) currently Company or its Subsidiaries shall be subject to a Mortgage granted Mortgage, each duly filed and recorded in all such places so as to perfect the liens intended to be created thereby. With respect to the real estate subject to each Mortgage, the Company shall have delivered to the Collateral Agent duly executed and delivered by the record owner of such Real Property and the Collateral Agent sufficient to grant to the Collateral Agent for its benefit and the benefit of the Trustee and the holders of the Second Priority Notes a valid second priority mortgage lien on such Real Property and otherwise suitable for recording Notes, at or filing, which Mortgage Amendment may be in a form consistent with before the time such Mortgage amendments previously is delivered to the Collateral Agent, and (iia) opinions and such other documents includingfrom a title company acceptable to the Required Holders, but not limited to, any consents, agreements and confirmations of third parties with respect a prepaid mortgagee title insurance policy in form acceptable to any such Mortgage Amendmentthe Required Holders, in each case an amount at least equal to the extent estimated fair market value of such real estate and consistent in form and substance with such documents as have been previously delivered to the Collateral Agentimprovements thereon, and (b) date-down endorsements to the title insurance policies previously delivered to the Collateral Agent (or in case of any Real Property located in Texas that is subject to a Mortgage Amendment, a title search together with a T-38 endorsement, or to the extent not available, a new title insurance policy), in each case consistent in form and substance with such documents as have been previously delivered to the Collateral Agent and/or the title insurance company (specifically excluding any new or updated survey), and paid for by the Company, issued by a nationally recognized title insurance company (which may be the same as the title insurance company or companies insuring the Mortgages in favor of the Collateral Agent) insuring the lien of each amended Mortgage, such mortgage with respect to such real estate as a valid valid, prior lien on such Real Property described thereinreal estate subject only to such exceptions as shall be approved by the Required Holders and containing such endorsements as may be required by the Required Holders, free (b) an ALTA/ACSM Land Title Survey with respect to such real estate, dated (or updated and recertified) as of any other liensa recent date, except for Permitted Liens (as such term is defined certified to the holders of the Notes by a land surveyor licensed in the “Description of Second Priority Notes” section jurisdiction in which such real estate is located, and satisfactory to the Required Holders, and (c) a Phase 1 environmental assessment, and such additional environmental assessments and reports as the Required Holders may request, satisfactory to the Required Holders, and each holder of the Prospectus)Notes shall be satisfied with the environmental condition of such real estate.”

Mortgages. The Company shall use commercially reasonable efforts to deliver to On the Trustee and Collateral Agent as promptly as reasonably practicable after the Closing Time but in any event within 120 days of the Closing Time (subject to extension in the sole discretion of the Trustee)Effective Date, (a) (i) an amendment to each existing Mortgage (as defined in the “Description of Second Priority Notes” section of the Prospectus) (Credit Party that owns a “Mortgage Amendment”) on such Real Property (as defined in the “Description of Second Priority Notes” section of the Prospectus) currently subject to a Mortgage granted to the Collateral Agent listed on Schedule 6.13 shall have duly authorized, executed and delivered by the record owner of a Mortgage over such Real Property Property, which shall be in full force and effect, and shall have delivered evidence satisfactory to the Administrative Agent and the Collateral Agent sufficient to grant to the Collateral Agent for its benefit and the benefit of the Trustee and the holders of the Second Priority Notes that each such Mortgage is a valid second priority and enforceable perfected security interest in and mortgage lien on such Real the respective Mortgaged Property and otherwise suitable for recording or filing, which Mortgage Amendment may be in a form consistent with such Mortgage amendments previously delivered to the Collateral Agent, and (ii) opinions and such other documents including, but not limited to, any consents, agreements and confirmations favor of third parties with respect to any such Mortgage Amendment, in each case to the extent and consistent in form and substance with such documents as have been previously delivered to the Collateral Agent, and (b) date-down endorsements to the title insurance policies previously delivered to the Collateral Agent (or in case such other trustee as may be required or desired under local law) for the benefit of any Real the Secured Creditors, superior and prior to the rights of all third Persons (except that the security interest and mortgage lien created on such Mortgaged Property located in Texas that is may be subject to a Mortgage Amendmentthe Permitted Encumbrances related thereto) and subject to no other Liens. In connection with the delivery of each such Mortgage, a title search together with a T-38 endorsementUS Company will, or to the extent not available, a new title insurance policy)and will cause each other Credit Party to, in each case consistent unless waived by the Administrative Agent, deliver (i) a Mortgage Policy issued by a title insurer reasonably satisfactory to the Administrative Agent, in form and substance with such documents as have been previously delivered and in an amount reasonably satisfactory to the Administrative Agent and Collateral Agent insuring that the Mortgage is a valid and enforceable First Priority Lien on the respective property other than Permitted Encumbrances, (ii) a then current A.L.T.A. survey, certified to the Administrative Agent and the Collateral Agent and/or the title insurance company (specifically excluding any new or updated survey), and paid for by the Company, issued by a nationally recognized title insurance company (which may be licensed surveyor sufficient to allow the same as the title insurance company or companies insuring the Mortgages in favor issuer of the Mortgage Policy to issue such Mortgage Policy without a survey exception, (iii) environmental due diligence reasonably acceptable to the Administrative Agent and Collateral Agent, in form and substance satisfactory to the Administrative Agent and Collateral Agent and (iv) insuring a customary certificate in a form reasonably acceptable to the lien of each amended MortgageAdministrative Agent indicating that the property is not in a flood zone, as or if the property is in a valid lien on such Real Property described thereinflood zone, free of any other liens, except for Permitted Liens (as such term is defined in deliver appropriate insurance reasonably acceptable to the “Description of Second Priority Notes” section of the Prospectus)Administrative Agent has not been obtained.

Mortgages. The With respect to any real property (other than Non-Material Real Property) that is owned in fee simple by the Company shall use commercially reasonable efforts to deliver to or any Guarantor (collectively, the Trustee and Collateral Agent as promptly as reasonably practicable after “Premises”), the Closing Time but in any event Company or such Guarantor shall, within 120 90 days of the Closing Time later of (subject to extension in x) the sole discretion of Restatement Date and (y) the Trustee)acquisition thereof, as applicable: (a) (i) an amendment to each existing Mortgage (as defined in the “Description of Second Priority Notes” section of the Prospectus) (a “Mortgage Amendment”) on such Real Property (as defined in the “Description of Second Priority Notes” section of the Prospectus) currently subject to a Mortgage granted to the Collateral Agent duly executed and delivered by the record owner of such Real Property and the Collateral Agent sufficient to grant to the Collateral Agent for its benefit and the benefit of the Trustee and the holders of the Second Priority Notes a valid second priority mortgage lien on such Real Property and otherwise suitable for recording or filing, which Mortgage Amendment may be in a form consistent with such Mortgage amendments previously delivered deliver to the Collateral Agent, as mortgagee, for the benefit of the Holders, fully executed counterparts of Mortgages, duly executed by the Company or the applicable Guarantor, as the case may be, and corresponding Uniform Commercial Code (iior similar) opinions fixture filings, together with evidence of the completion (or satisfactory arrangements for the completion) of all recordings and filings of such other documents includingMortgages and corresponding Uniform Commercial Code (or similar) fixture filings as may be necessary to create a valid, but not limited toperfected first priority Lien in favor of the Collateral Agent, any consentssubject to Permitted Liens, agreements and confirmations of third parties with respect against the Premises purported to any such Mortgage Amendment, in each case to the extent and consistent in form and substance with such documents as have been previously delivered be covered thereby; (b) deliver to the Collateral Agent, and (bi) date-down endorsements to the mortgagee’s title insurance policies previously delivered to in favor of the Collateral Agent (or in case an amount equal to 100% of any Real Property located in Texas that is subject the fair market value of the Premises purported to a Mortgage Amendment, a title search together with a T-38 endorsement, or to the extent not available, a new title insurance policy), in each case consistent in form and substance with such documents as have been previously delivered to the Collateral Agent and/or the title insurance company (specifically excluding any new or updated survey), and paid for be covered by the Companyrelated Mortgages, issued by a nationally recognized title insurance 58 company selected by the Company or the applicable Guarantor and reasonably satisfactory to the Representative and the Collateral Agent, insuring the Lien of each such Mortgage as a first priority Lien subject only to Permitted Liens, and such policies shall also include, to the extent available and issued at commercially reasonable rates, customary endorsements or such endorsements as the Collateral Agent may reasonably request (which may excluding endorsements related to mechanics lien coverage) and shall be accompanied by evidence of the same payment in full (or satisfactory arrangements for the payment in full) of all premiums thereon and (ii) such affidavits, certificates, instruments of indemnification and other items (including a so-called “gap” indemnification) in form and substance reasonably acceptable to the Company, the applicable Guarantor, the Collateral Agent and the Representative, as shall be reasonably required to induce the title insurer to issue the title insurance policies and endorsements referenced herein with respect to each of the Premises; (c) deliver to the Collateral Agent current and future real property surveys of such Premises in such form as shall be reasonably required by the title company to issue the so- called comprehensive and other survey related endorsements and to remove the standard survey exceptions from the title policies and endorsements contemplated above, provided, however, that a survey shall not be required to the extent that the issuer of the applicable title insurance policy provides reasonable and customary survey-related coverages (including, without limitation, survey-related endorsements) in the applicable title insurance policy based on an existing survey and/or such other documentation as may be reasonably satisfactory to the title insurer; (d) completed “Life-of-Loan” Federal Emergency Management Agency (“FEMA”) Standard Flood Hazard Determination with respect to each mortgaged Premises subject to the applicable FEMA rules and regulations, and if any such Premises is located in an area determined by FEMA to have special flood hazards, evidence of such flood insurance as may be required under applicable law, including Regulation H of the Board of Governors; (e) existing environmental assessment reports with respect to any of the Premises, to the extent available and in the possession or companies insuring reasonable control of the Mortgages Company or any Guarantor; (f) deliver Opinions of Counsel to the Collateral Agent and the Representative (in form and substance reasonably satisfactory to them) in the jurisdictions where such Premises are located that such Mortgage has been duly authorized, executed and delivered by the Company or such Guarantor, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law), constitutes a legal, valid, binding and enforceable obligation of the Company or such Guarantor and creates a valid perfected Lien in favor of the Collateral Agent, subject to Permitted Liens, against the Premises purported to be covered thereby and such other matters as the Collateral Agent and the Representative shall reasonably request; and (g) insuring such other information, documentation, and certifications as may be reasonably required by the lien of each amended MortgageCollateral Agent or the Representative or necessary in order to create valid, as a valid lien on such Real Property described therein, free of any other liens, except for Permitted perfected and subsisting Liens (as such term is defined in the “Description of Second Priority Notes” section favor of the Prospectus)Collateral Agent, subject to Permitted Liens, against the Premises covered by the Mortgages.

Mortgages. The Company Loans will be secured by the Deed of Trust executed by the Borrower in favor of the Lender creating a first priority pari passu Lien on the Las Vegas Showboat (including, without limitation, the fee and leasehold interests as well as interests in all furniture, furnishings, fixtures, equipment and other personal property, which are not subject to any Lien permitted to be granted under Section 6.05 hereof in favor of any third party lender providing financing for the acquisition or the lease thereof). The obligations of ACSI hereunder will be secured by its Mortgage and the Assignment of Leases and Rents executed by ACSI in favor of the Lender creating a first priority pari passu Lien on the Atlantic City Showboat (including, without limitation, its fee and leasehold interests as well as interests in all furniture, furnishings, fixtures, equipment and other personal property, which are not subject to any Lien permitted to be granted under Section 6.05 hereof in favor of any third party lender providing financing for the acquisition or the lease thereof). The Lender shall use commercially reasonable efforts receive evidence reasonably satisfactory to deliver it that the Borrower and ACSI have sufficient right, title and interest to mortgage the real property interests covered under the Mortgages and that all security and mortgage documents necessary to provide the Lender with valid first mortgage liens on the real property interest described in the Mortgages (in pari passu with the Trustee and Collateral Agent as promptly as reasonably practicable after the Closing Time but in any event within 120 days of the Closing Time (subject to extension in the sole discretion of the Trustee), (a) (i) an amendment to each existing Mortgage (as defined in the “Description of Second Priority Notes” section of the Prospectus) (a “Mortgage Amendment”) on such Real Property (as defined in the “Description of Second Priority Notes” section of the Prospectus) currently subject to a Mortgage granted to the Collateral Agent duly executed and delivered by the record owner of such Real Property and the Collateral Agent sufficient to grant to the Collateral Agent for its benefit and the benefit of the Trustee and the holders of the Second Priority Notes a valid second priority mortgage lien on such Real Property and otherwise suitable for recording Bonds subject to Permitted Liens) have been filed and/or recorded or filing, which Mortgage Amendment may be in a form consistent with such Mortgage amendments previously delivered to the Collateral Agent, and Lender (ii) opinions and such other documents including, but not limited to, any consents, agreements and confirmations of third parties with respect to any such Mortgage Amendment, in each case to the extent and consistent in form and substance with such documents as have been previously delivered to the Collateral Agent, and (b) date-down endorsements to the title insurance policies previously delivered to the Collateral Agent (or in case of any Real Property located in Texas that is subject to a Mortgage Amendment, a title search together with a T-38 endorsement, or to the extent not available, a new title insurance policy), in each case consistent in form and substance with such documents as have been previously delivered to the Collateral Agent and/or duly authorized agent of the title insurance company (specifically excluding any new or updated survey), and paid for by issuing the Company, issued by a nationally recognized mortgage title insurance company (which may be the same as the title insurance company or companies insuring the Mortgages policies in favor of the Collateral AgentLender) insuring in form satisfactory for filing. Lender shall have further received an assignment of rents and leases as to each of the lien of each amended Mortgage, as a valid lien on such Real Property described therein, free of any other liens, except for Permitted Liens (as such term is defined mortgaged properties in the “Description of Second Priority Notes” section of the Prospectus)form agreed to by Lender and Borrower.