EXCLUSIONS OR DEFENSES, PROVIDED, HOWEVER, THAT THE AMOUNT OF SUCH
TAX SHALL NOT EXCEED THE AMOUNT OF THE PAYMENTS RECEIVED BY A CREDIT PARTY
PURSUANT TO THIS SECTION 4.04(C); (III) NOTHING IN THIS SECTION 4.04(C) SHALL
REQUIRE THE LENDER TO DISCLOSE ANY CONFIDENTIAL INFORMATION TO ANY CREDIT PARTY
(INCLUDING, WITHOUT LIMITATION, ITS TAX RETURNS); AND (IV) NO LENDER SHALL BE
REQUIRED TO PAY ANY AMOUNTS PURSUANT TO THIS SECTION 4.04(C) AT ANY TIME WHICH A
DEFAULT OR EVENT OF DEFAULT EXISTS.
SECTION 5.
CONDITIONS PRECEDENT.
5.01
CONDITIONS PRECEDENT TO THE RESTATEMENT EFFECTIVE DATE AND THE OCCURRENCE
OF CREDIT EVENTS ON SUCH DATE.
THE OCCURRENCE OF THE RESTATEMENT EFFECTIVE DATE
AND THE OBLIGATION OF EACH LENDER TO MAKE LOANS (INCLUDING BY WAY OF THE
CONVERSION OF THE EXISTING TERM LOANS AND EXISTING REVOLVING LOANS ON THE
RESTATEMENT EFFECTIVE DATE AS CONTEMPLATED IN SECTIONS 1.01(A) AND (B)), AND THE
OBLIGATION OF EACH LETTER OF CREDIT ISSUER TO ISSUE LETTERS OF CREDIT (INCLUDING
ANY EXISTING LETTERS OF CREDIT DEEMED ISSUED ON THE RESTATEMENT EFFECTIVE DATE
AS CONTEMPLATED IN SECTION 2.01(B)), ON THE RESTATEMENT EFFECTIVE DATE, IS
SUBJECT TO THE SATISFACTION OF EACH OF THE FOLLOWING CONDITIONS:
(A)
EXECUTION OF AGREEMENT; NOTES.
ON OR PRIOR
TO THE RESTATEMENT EFFECTIVE DATE, (I) THIS AGREEMENT SHALL HAVE BEEN EXECUTED
AND DELIVERED AS PROVIDED IN SECTION 12.10 AND (II) THERE SHALL HAVE BEEN
DELIVERED TO THE ADMINISTRATIVE AGENT FOR THE ACCOUNT OF EACH OF THE LENDERS
THAT HAS REQUESTED SAME AS A CONDITION TO FUNDING ITS PRO RATA SHARE OF THE
LOANS ON THE RESTATEMENT EFFECTIVE DATE, THE APPROPRIATE TERM NOTE AND/OR
REVOLVING NOTE EXECUTED BY THE BORROWER AND, IF REQUESTED BY THE SWINGLINE
LENDER, THE SWINGLINE NOTE EXECUTED BY THE BORROWER, IN EACH CASE IN THE AMOUNT,
MATURITY AND AS OTHERWISE PROVIDED HEREIN.
(B)
OPINIONS OF COUNSEL.
THE ADMINISTRATIVE
AGENT SHALL HAVE RECEIVED (I) FROM LATHAM & WATKINS, SPECIAL COUNSEL TO THE
CREDIT PARTIES, AN OPINION ADDRESSED TO THE JOINT LEAD ARRANGERS, THE
ADMINISTRATIVE AGENT, THE COLLATERAL AGENT AND EACH OF THE LENDERS AND DATED THE
RESTATEMENT EFFECTIVE DATE COVERING THE MATTERS SET FORTH IN EXHIBIT E AND
(II) FROM SUCH LOCAL COUNSEL AS MAY BE REASONABLY REQUESTED BY THE JOINT LEAD
ARRANGERS, WHICH OPINIONS
32
SHALL COVER THE PERFECTION OF SECURITY INTERESTS GRANTED PURSUANT TO THE
MORTGAGES AND THE SECURITY AGREEMENT AND SHALL BE IN FORM AND SUBSTANCE
REASONABLY SATISFACTORY TO THE JOINT LEAD ARRANGERS.
(C)
CORPORATE DOCUMENTS; PROCEEDINGS; ETC.
(I)
THE JOINT LEAD ARRANGERS SHALL HAVE RECEIVED A CERTIFICATE FROM EACH NEW
CREDIT PARTY, DATED THE RESTATEMENT EFFECTIVE DATE, SIGNED BY THE CHAIRMAN OF
THE BOARD, THE CHIEF EXECUTIVE OFFICER, THE PRESIDENT OR ANY VICE PRESIDENT OF
SUCH NEW CREDIT PARTY, AND ATTESTED TO BY THE SECRETARY OR ANY ASSISTANT
SECRETARY OF SUCH NEW CREDIT PARTY, SUBSTANTIALLY IN THE FORM OF EXHIBIT F WITH
APPROPRIATE INSERTIONS AND DELETIONS, TOGETHER WITH COPIES OF THE CERTIFICATE OR
ARTICLES OF INCORPORATION AND BY-LAWS (OR EQUIVALENT ORGANIZATIONAL DOCUMENTS),
AS APPLICABLE, OF SUCH NEW CREDIT PARTY AND THE