PERFECTED LIEN ON,
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AND SECURITY INTEREST IN, ALL RIGHT, TITLE AND INTEREST OF THE LOAN PARTIES IN
THE MORTGAGED PROPERTIES DESCRIBED THEREIN AND THE PROCEEDS AND PRODUCTS
THEREOF, AS SECURITY FOR THE SHARING OBLIGATIONS, IN EACH CASE PRIOR AND
SUPERIOR IN RIGHT TO ANY OTHER PERSON (OTHER THAN PERSONS HOLDING LIENS OR OTHER
ENCUMBRANCES OR RIGHTS PERMITTED BY THE RELEVANT MORTGAGE);
(C)
NOTWITHSTANDING THAT THE AGGREGATE
PRINCIPAL AMOUNT OF THE LOANS HEREUNDER EXCEEDS THE AGGREGATE PRINCIPAL AMOUNT
OF "LOANS" UNDER THE EXISTING TERM LOAN AGREEMENT AND ANY OTHER CHANGES FROM THE
EXISTING TERM LOAN AGREEMENT REFLECTED HEREIN, FROM AND AFTER THE EFFECTIVE
DATE:
(I)
THIS AGREEMENT REPLACES OR REFINANCES
THE EXISTING TERM LOAN AGREEMENT AND CONSTITUTES THE "CREDIT AGREEMENT" (AS
DEFINED IN EACH OF THE SECURITY AGREEMENT, THE MORTGAGES AND THE GUARANTY) AND
THE "SECURED LIEN TERM LOAN AGREEMENT" (AS DEFINED IN THE COLLATERAL TRUST
AGREEMENT);
(II)
THE OBLIGATIONS CONSTITUTE THE "SECURED
LIEN TERM LOAN OBLIGATIONS" (AS DEFINED IN THE COLLATERAL TRUST AGREEMENT); AND
(III)
THE ADMINISTRATIVE AGENT CONSTITUTES THE
"SECOND LIEN TERM LOAN AGENT" (AS DEFINED IN THE COLLATERAL TRUST AGREEMENT) AND
THE "ADMINISTRATIVE AGENT" (AS DEFINED IN THE SECURITY AGREEMENT AND THE
GUARANTY) AND THE "COLLATERAL TRUSTEE" (AS DEFINED IN THE MORTGAGES).
ARTICLE VII
AFFIRMATIVE COVENANTS
Each Loan Party covenants and agrees with each Lender that so long as any Lender
shall have any Commitment hereunder, or any Loan or other Obligation shall
remain unpaid or unsatisfied unless the Required Lenders consent in writing,
each Loan Party shall, and shall cause each of its Restricted Subsidiaries to:
7.1
Financial Statements.
Maintain for itself
and the Restricted Subsidiaries, on a consolidated basis, a system of accounting
established and administered in accordance with GAAP and deliver to the
Administrative Agent who will make available to each Lender:
(A)
AS SOON AS AVAILABLE, NOT LATER THAN 90
DAYS AFTER THE END OF EACH FISCAL YEAR, A COPY OF THE ANNUAL AUDITED
CONSOLIDATED BALANCE SHEET OF THE BORROWER AND THE RESTRICTED SUBSIDIARIES AS AT
THE END OF SUCH YEAR, AND THE RELATED CONSOLIDATED STATEMENTS OF OPERATIONS AND
RETAINED EARNINGS, COMPREHENSIVE INCOME AND CASH FLOWS FOR SUCH YEAR, SETTING
FORTH IN EACH CASE IN COMPARATIVE FORM THE FIGURES FOR THE PREVIOUS FISCAL YEAR;
THE BORROWER'S FINANCIAL STATEMENTS SHALL BE ACCOMPANIED BY THE UNQUALIFIED
OPINION (OR, IF QUALIFIED, OF A NON-MATERIAL NATURE (E.G. FASB CHANGES OF
ACCOUNTING PRINCIPLES) OR NOTHING INDICATIVE OF GOING CONCERN OR MATERIAL
MISREPRESENTATION NATURE) AND A COPY OF THE MANAGEMENT LETTER OF DELOITTE &
TOUCHE LLP OR OTHER NATIONALLY RECOGNIZED INDEPENDENT PUBLIC ACCOUNTING FIRM
ACCEPTABLE TO THE ADMINISTRATIVE AGENT (THE
66
"INDEPENDENT AUDITOR"), WHICH REPORT SHALL STATE THAT SUCH CONSOLIDATED
FINANCIAL STATEMENTS PRESENT FAIRLY IN ALL MATERIAL RESPECTS THE CONSOLIDATED
FINANCIAL POSITION OF THE BORROWER AND THE RESTRICTED SUBSIDIARIES AT THE END OF
SUCH PERIODS AND THE RESULTS OF THEIR OPERATIONS AND THEIR CASH FLOWS FOR THE
PERIODS INDICATED IN CONFORMITY WITH GAAP; AND
(B)
AS SOON AS AVAILABLE, BUT NOT LATER THAN 60
DAYS AFTER THE