REQUISITE
GOVERNMENTAL AUTHORITIES AND THIRD PARTIES SHALL HAVE APPROVED OR CONSENTED TO
THE TRANSACTIONS CONTEMPLATED HEREBY, EXCEPT FOR SUCH CONSENTS OR APPROVALS THE
ABSENCE OF WHICH COULD NOT REASONABLY BE EXPECTED TO HAVE A MATERIAL ADVERSE
EFFECT, AND THERE SHALL BE NO GOVERNMENTAL OR JUDICIAL ACTION, ACTUAL OR
THREATENED, THAT HAS OR WOULD HAVE, SINGLY OR IN THE AGGREGATE, A REASONABLE
LIKELIHOOD OF RESTRAINING, PREVENTING OR IMPOSING BURDENSOME CONDITIONS ON THE
TRANSACTIONS CONTEMPLATED HEREBY.
(K)
LITIGATION.
THERE SHALL BE NO LITIGATION, PUBLIC OR PRIVATE, OR
ADMINISTRATIVE PROCEEDINGS, GOVERNMENTAL INVESTIGATION OR OTHER LEGAL OR
REGULATORY DEVELOPMENTS, ACTUAL OR THREATENED, THAT, SINGLY OR IN THE AGGREGATE,
COULD REASONABLY BE EXPECTED TO RESULT IN A MATERIAL ADVERSE EFFECT, OR COULD
MATERIALLY AND ADVERSELY AFFECT THE ABILITY OF HOLDINGS, THE BORROWERS AND THEIR
RESPECTIVE SUBSIDIARIES TO FULLY AND TIMELY PERFORM THEIR RESPECTIVE OBLIGATIONS
UNDER THE TRANSACTION DOCUMENTS, OR THE ABILITY OF THE PARTIES TO CONSUMMATE THE
FINANCINGS OR TRANSACTIONS CONTEMPLATED HEREBY.
(L)
SOURCES AND USES.
THE SOURCES AND USES OF THE LOANS SHALL BE AS
SET FORTH IN SECTION 3.12.
116
(M)
FEES.
THE ARRANGER, ADMINISTRATIVE AGENTS AND COLLATERAL AGENTS
SHALL HAVE RECEIVED (I) ALL OF THE ACCRUED AND UNPAID FEES, INTEREST
AND OTHER
AMOUNTS WHICH ARE DUE AND PAYABLE UNDER THE ORIGINAL CREDIT AGREEMENT OR ANY
OTHER PRIOR LOAN DOCUMENT, (II) ALL FEES, INTEREST AND OTHER AMOUNTS DUE AND
PAYABLE ON OR PRIOR TO THE CLOSING DATE, INCLUDING, TO THE EXTENT INVOICED,
REIMBURSEMENT OR PAYMENT OF ALL REASONABLE OUT-OF-POCKET EXPENSES (INCLUDING THE
REASONABLE LEGAL FEES AND EXPENSES OF LATHAM & WATKINS, LLP, SPECIAL COUNSEL TO
THE APPLICABLE ADMINISTRATIVE AGENTS AND THE APPLICABLE COLLATERAL AGENTS, AND
THE REASONABLE FEES AND EXPENSES OF ANY LOCAL COUNSEL, FOREIGN COUNSEL,
APPRAISERS, CONSULTANTS AND OTHER ADVISORS) REQUIRED TO BE REIMBURSED OR PAID BY
THE BORROWERS HEREUNDER OR UNDER ANY OTHER LOAN DOCUMENT AND INCLUDING ALL FEES
AND EXPENSES DUE UNDER THAT CERTAIN LETTER AGREEMENT DATED AS OF MAY 1, 2007
AMONG BORROWERS, UBS AND UBSS RELATING TO THE INCREASE IN THE REVOLVING
COMMITMENTS AND OTHER AMENDMENTS TO THE ORIGINAL CREDIT AGREEMENT AND (III) ALL
OF THE UNPAID INTEREST ACCRUED UNDER THE ORIGINAL CREDIT AGREEMENT UP TO, BUT
EXCLUDING, THE CLOSING DATE.
(N)
SECURITY DOCUMENTS.
THE AGENTS SHALL HAVE RECEIVED (I) A
REAFFIRMATION AGREEMENT, (II) A CANADIAN REAFFIRMATION AGREEMENT, (III) ALL
NECESSARY AMENDMENTS, MODIFICATIONS AND/OR CONFIRMATIONS TO THE SECURITY
DOCUMENTS IN EFFECT ON AND AFTER THE ORIGINAL CLOSING DATE AND (IV) EVIDENCE
THAT ALL OTHER ACTIONS THAT AGENTS MAY DEEM NECESSARY OR DESIRABLE IN ORDER TO
PERFECT AND PROTECT, AND CONTINUE THE PERFECTION AND PROTECTION OF, THE FIRST
PRIORITY LIENS AND SECURITY INTERESTS CREATED UNDER THE SECURITY DOCUMENTS HAVE
BEEN TAKEN.
(O)
REAL PROPERTY REQUIREMENTS.
THE APPLICABLE COLLATERAL AGENTS
SHALL HAVE RECEIVED:
(I)
A MORTGAGE ENCUMBERING EACH MORTGAGED PROPERTY OWNED BY A US
BORROWER OR US SUBSIDIARY THAT, TOGETHER WITH ANY IMPROVEMENTS THEREON,
INDIVIDUALLY HAS A FAIR MARKET VALUE (NET OF EXISTING MORTGAGE DEBT SECURED BY
EACH SUCH PROPERTY) OF GREATER THAN $500,000, IN EACH CASE, IN FAVOR