NOT A LOAN PARTY.
In the event that any one or more Persons have not executed and delivered an
Addendum on the date scheduled to be the Closing Date (each such Person being
referred to herein as a "Non-Executing Person"), the condition referred to in
clause (i) above shall nevertheless be deemed satisfied if on such date the
Borrower and the Administrative Agent shall have designated one or more Persons
(the "Designated Lenders") to assume, in the aggregate, all of the Commitments
that would have been held by the "Non-Executing Persons" (subject to each such
Designated Lender's consent and its execution and delivery of an Addendum).
(B)
CONCURRENT TRANSACTIONS.
THE ADMINISTRATIVE
AGENT SHALL HAVE RECEIVED SATISFACTORY EVIDENCE THAT (I) THE OLD CREDIT FACILITY
SHALL HAVE BEEN TERMINATED AND ALL AMOUNTS THEREUNDER SHALL HAVE BEEN PAID IN
FULL, (II) AN AMOUNT OF PROCEEDS OF THE TERM LOANS SUFFICIENT TO REPAY THE
SENIOR NOTES IN FULL (TOGETHER WITH ALL REQUIRED PREMIUMS, PENALTIES AND FEES)
SHALL HAVE BEEN IRREVOCABLY (OTHER THAN AS TO THE RETURN OF ANY EXCESS AMOUNTS)
PLACED WITH THE TRUSTEE FOR THE HOLDERS OF THE SENIOR NOTES SOLELY FOR SUCH
PURPOSE, AND (III) NO LIENS SHALL EXIST IN FAVOR OF THE HOLDERS OF ANY
REFINANCED INDEBTEDNESS.
(C)
PRO FORMA BALANCE SHEET; FINANCIAL
STATEMENTS.
THE LENDERS SHALL HAVE RECEIVED (I) THE PRO FORMA BALANCE SHEET,
(II) AUDITED CONSOLIDATED FINANCIAL STATEMENTS OF HOLDINGS FOR THE 2004 AND 2003
FISCAL YEARS AND (III) UNAUDITED INTERIM CONSOLIDATED FINANCIAL STATEMENTS OF
HOLDINGS FOR EACH QUARTERLY PERIOD ENDED SUBSEQUENT TO THE DATE OF THE LATEST
APPLICABLE FINANCIAL STATEMENTS DELIVERED PURSUANT TO CLAUSE (II) OF THIS
PARAGRAPH AS TO WHICH SUCH FINANCIAL STATEMENTS ARE AVAILABLE, AND SUCH
FINANCIAL STATEMENTS SHALL NOT REFLECT ANY MATERIAL ADVERSE CHANGE IN THE
CONSOLIDATED FINANCIAL CONDITION OF HOLDINGS, AS REFLECTED IN THE FINANCIAL
STATEMENTS OR PROJECTIONS CONTAINED IN THE CONFIDENTIAL INFORMATION MEMORANDUM.
(D)
APPROVALS.
ALL GOVERNMENTAL AND MATERIAL
THIRD PARTY APPROVALS NECESSARY, OR IN THE DISCRETION OF THE ADMINISTRATIVE
AGENT, ADVISABLE IN CONNECTION WITH THE REFINANCING, THE CONTINUING OPERATIONS
OF THE GROUP MEMBERS AND THE TRANSACTIONS CONTEMPLATED HEREBY, AND THE CONSENT
OF EACH LANDLORD OF THE LEASED MORTGAGED PROPERTIES LISTED ON SCHEDULE 1.1(C),
SHALL HAVE BEEN OBTAINED AND BE IN FULL FORCE AND EFFECT, AND ALL APPLICABLE
WAITING PERIODS SHALL HAVE EXPIRED WITHOUT ANY ACTION BEING TAKEN OR THREATENED
BY ANY COMPETENT AUTHORITY THAT WOULD RESTRAIN, PREVENT OR OTHERWISE IMPOSE
ADVERSE CONDITIONS ON THE REFINANCING OR THE FINANCING CONTEMPLATED HEREBY.
(E)
LIEN SEARCHES.
THE ADMINISTRATIVE AGENT
SHALL HAVE RECEIVED THE RESULTS OF A RECENT LIEN SEARCH IN EACH OF THE
JURISDICTIONS WHERE THE GROUP MEMBERS ARE ORGANIZED AND WHERE ASSETS OF THE LOAN
PARTIES ARE LOCATED, AND SUCH SEARCH SHALL REVEAL NO LIENS ON ANY OF THE ASSETS
OF THE LOAN PARTIES EXCEPT FOR LIENS PERMITTED BY SECTION 8.3 OR DISCHARGED ON
OR PRIOR TO THE CLOSING DATE PURSUANT TO DOCUMENTATION REASONABLY SATISFACTORY
TO THE ADMINISTRATIVE AGENT.
(F)
FEES.
THE LENDERS AND THE AGENTS SHALL
HAVE RECEIVED ALL FEES REQUIRED TO BE