AGENT, THE CO-COLLATERAL AGENTS, THE LENDERS AND OTHER HOLDERS OF
SECURED OBLIGATIONS, SHALL HAVE A SECURITY INTEREST IN THE COLLATERAL OF THE
TYPE AND PRIORITY DESCRIBED IN THE COLLATERAL DOCUMENTS (SUBJECT TO LIENS
EXPRESSLY PERMITTED BY SECTION 6.02 AND, SUBJECT TO THE TERMS OF THE
INTERCREDITOR AGREEMENT AND THE LIENS GRANTED UNDER THE TERM LOAN SECURITY
DOCUMENTS).
(P)
MORTGAGES, ETC.
THE COMPANY SHALL HAVE USED ITS COMMERCIALLY
REASONABLE EFFORTS TO DELIVER TO THE AGENT, WITH RESPECT TO EACH MORTGAGED
PROPERTY FOR WHICH AN EXISTING MORTGAGE HAS BEEN GRANTED (SUBJECT TO THE LIEN
PRIORITY SET FORTH IN THE INTERCREDITOR AGREEMENT), EACH OF THE FOLLOWING, IN
FORM AND SUBSTANCE REASONABLY SATISFACTORY TO THE AGENT:
(I)
EVIDENCE THAT MORTGAGE AMENDMENTS, SUPPLEMENTS AND RESTATEMENTS
(THE "MORTGAGE AMENDMENTS") WITH RESPECT TO EACH OF THE EXISTING MORTGAGES HAVE
BEEN DULY EXECUTED, ACKNOWLEDGED AND DELIVERED BY EACH PARTY THERETO TO THE
APPROPRIATE TITLE INSURANCE COMPANY AND ARE IN FORM SUITABLE FOR FILING OR
RECORDING IN ALL APPLICABLE FILING OR RECORDING OFFICES;
(II)
WITH RESPECT TO EACH EXISTING MORTGAGE, FULLY PAID TITLE
SEARCHES, MORTGAGE AMENDMENT ENDORSEMENTS AND/OR DATE-DOWN ENDORSEMENTS (IN EACH
CASE AS REASONABLY DETERMINED BY THE AGENT (WHICH DETERMINATION MAY BE BASED, IN
PART, ON THE RELATIVE COSTS TO THE COMPANY AND BENEFITS TO THE SECURED PARTIES
OF SUCH ALTERNATIVES)) OR THE SUITABLE EQUIVALENT OR OTHER FORM AVAILABLE IN
EACH APPLICABLE JURISDICTION, TO THE TITLE INSURANCE POLICIES ISSUED IN RESPECT
OF THE EXISTING MORTGAGES;
(III)
SUCH ADVICE OR OPINIONS FROM LOCAL COUNSEL RETAINED BY THE
COMPANY IN THE STATES IN WHICH THE MORTGAGED PROPERTIES FOR WHICH THE EXISTING
MORTGAGES HAVE BEEN GRANTED ARE LOCATED AS MAY BE REASONABLY REQUIRED BY THE
AGENT; AND
(IV)
EVIDENCE THAT ALL FEES, COSTS AND EXPENSES HAVE BEEN PAID IN
CONNECTION WITH THE MORTGAGE AMENDMENTS, INCLUDING FILING AND RECORDING FEES,
TITLE INSURANCE COMPANY FEES AND TITLE CHARGES.
85
(Q)
MATERIAL ADVERSE EFFECT.
NO EVENT SHALL HAVE OCCURRED SINCE
JANUARY 31, 2009 THAT HAS HAD OR COULD REASONABLY BE EXPECTED TO HAVE A MATERIAL
ADVERSE EFFECT.
(R)
CONSENTS.
ANY CONSENTS, APPROVALS, ASSIGNMENTS OR OTHER ACTIONS
UNDER THE EXISTING CREDIT AGREEMENT IN CONNECTION WITH THE EFFECTIVENESS OF THIS
AGREEMENT SHALL HAVE BEEN OBTAINED OR GIVEN AND SHALL BE IN FULL FORCE AND
EFFECT, INCLUDING (I) THE RESIGNATION OF THE EXISTING AGENT, (II) THE CONSENT OF
THE REQUIRED LENDERS AS DEFINED THEREIN (AND ANY LENDER UNDER THE EXISTING
CREDIT AGREEMENT THAT IS A PARTY HERETO HEREBY PROVIDES SUCH CONSENT BY
EXECUTION HEREOF), AND (III) THE ASSIGNMENT OR REPAYMENT IN FULL OF ALL AMOUNTS
OWING TO LENDERS UNDER THE EXISTING CREDIT AGREEMENT TO THE EXTENT NOT
CONSTITUTING AMOUNTS OR OBLIGATIONS OWING HEREUNDER.
(S)
OTHER INDEBTEDNESS.
AFTER GIVING EFFECT TO THE TRANSACTIONS AND
THE OTHER TRANSACTIONS CONTEMPLATED HEREBY, HOLDINGS, THE COMPANY AND ITS
SUBSIDIARIES SHALL NOT HAVE ANY OUTSTANDING INDEBTEDNESS OR PREFERRED STOCK
OTHER THAN (A) THE OBLIGATIONS, (B) INDEBTEDNESS UNDER THE SENIOR SECURED TERM
LOAN FACILITY, (C) THE EXISTING NOTES, (D) THE 2028 DEBENTURES AND
(E) INDEBTEDNESS SET FORTH ON SCHEDULE 6.01.
(T)
INSURANCE.
THE