IN SCOPE CONCERNING ANY MORTGAGED PROPERTY THAT IS THE SUBJECT OF THE
BREACH OR NOTICE OF HOLDINGS OR ITS SUBSIDIARIES, PREPARED BY AN ENVIRONMENTAL
CONSULTING FIRM REASONABLY ACCEPTABLE TO THE ADMINISTRATIVE AGENT, INDICATING
THE PRESENCE OR RELEASE OR ABSENCE OF HAZARDOUS MATERIALS ON OR FROM ANY SUCH
MORTGAGED PROPERTY AND THE POTENTIAL COST OF ANY REMOVAL OR REMEDIAL ACTION IN
CONNECTION WITH ANY HAZARDOUS MATERIALS ON SUCH MORTGAGED PROPERTY.
IF HOLDINGS
OR THE BORROWER FAILS TO PROVIDE THE SAME AFTER THIRTY DAYS' NOTICE AND THE
EVENT OF DEFAULT IS CONTINUING, THE ADMINISTRATIVE AGENT MAY ORDER THE SAME, AND
HOLDINGS AND THE BORROWER SHALL GRANT AND HEREBY GRANT TO THE ADMINISTRATIVE
AGENT AND THE LENDERS AND THEIR AGENTS ACCESS TO SUCH MORTGAGED PROPERTY AND
SPECIFICALLY GRANTS THE ADMINISTRATIVE AGENT AND THE LENDERS AN IRREVOCABLE
NON-EXCLUSIVE LICENSE, SUBJECT TO THE RIGHTS
54
OF TENANTS, TO UNDERTAKE SUCH AN ASSESSMENT ALL AT HOLDINGS' AND THE BORROWER'S
(JOINT AND SEVERAL) REASONABLE EXPENSE, WHICH ASSESSMENTS, IF OBTAINED, WILL BE
PROVIDED TO HOLDINGS.
7.12
PERMITTED ACQUISITIONS.
(A)
SUBJECT TO THE PROVISIONS OF THIS
SECTION 7.12 AND THE REQUIREMENTS CONTAINED IN THE DEFINITION OF PERMITTED
ACQUISITION, THE BORROWER AND ITS SUBSIDIARIES MAY EFFECT PERMITTED ACQUISITIONS
IN ACCORDANCE WITH THE DEFINITION THEREOF, SO LONG AS (IN EACH CASE EXCEPT TO
THE EXTENT THE REQUIRED LENDERS OTHERWISE SPECIFICALLY AGREE IN WRITING IN THE
CASE OF A SPECIFIC PERMITTED ACQUISITION):
(I) NO DEFAULT OR EVENT OF DEFAULT
SHALL HAVE OCCURRED AND BE CONTINUING AT THE TIME OF THE CONSUMMATION OF THE
PROPOSED PERMITTED ACQUISITION OR IMMEDIATELY AFTER GIVING EFFECT THERETO;
(II) THE BORROWER SHALL HAVE GIVEN TO THE ADMINISTRATIVE AGENT AND THE LENDERS
(X) AT LEAST 5 BUSINESS DAYS' PRIOR WRITTEN NOTICE OF ANY PERMITTED ACQUISITION
(OR SUCH SHORTER PERIOD OF TIME AS MAY BE REASONABLY ACCEPTABLE TO THE
ADMINISTRATIVE AGENT), WHICH NOTICE SHALL DESCRIBE IN REASONABLE DETAIL THE
PRINCIPAL TERMS AND CONDITIONS OF SUCH PERMITTED ACQUISITION AND (Y) A COPY OF
ANY "PHASE ONE" OR "PHASE TWO" ENVIRONMENTAL ASSESSMENT THAT THE BORROWER, IN
ITS DISCRETION, OBTAINED IN CONNECTION WITH THE PROPOSED PERMITTED ACQUISITION;
(III) IN THE CASE OF A SIGNIFICANT ACQUISITION, CALCULATIONS ARE MADE BY
HOLDINGS WITH RESPECT TO THE FINANCIAL COVENANTS FOR THE TEST PERIOD MOST
RECENTLY ENDED ON A POST-TEST PERIOD PRO FORMA BASIS AS IF THE RESPECTIVE
SIGNIFICANT ACQUISITION (AS WELL AS ALL OTHER SIGNIFICANT ACQUISITIONS AND
SIGNIFICANT ASSET SALES THERETOFORE CONSUMMATED AFTER THE FIRST DAY OF SUCH TEST
PERIOD) HAD OCCURRED ON THE FIRST DAY OF' SUCH TEST PERIOD, AND SUCH
CALCULATIONS SHALL SHOW THAT SUCH FINANCIAL COVENANTS WOULD HAVE BEEN COMPLIED
WITH IF THE RESPECTIVE PERMITTED ACQUISITION HAD OCCURRED ON THE FIRST DAY OF
SUCH TEST PERIOD; (IV) ALL REPRESENTATIONS AND WARRANTIES CONTAINED HEREIN AND
IN THE OTHER CREDIT DOCUMENTS SHALL BE TRUE AND CORRECT IN ALL MATERIAL RESPECTS
WITH THE SAME EFFECT AS THOUGH SUCH REPRESENTATIONS AND WARRANTIES HAD BEEN MADE
ON AND AS OF THE DATE OF SUCH PERMITTED ACQUISITION (BOTH BEFORE AND AFTER
GIVING EFFECT THERETO), UNLESS STATED TO RELATE