is subject to
the satisfaction or waiver, prior to or concurrently with the making of such
extension of credit on the Restatement Date, of the following conditions
precedent:
(A)
LOAN DOCUMENTS.
ALL LEGAL MATTERS INCIDENT TO THIS AGREEMENT AND THE
OTHER LOAN DOCUMENTS SHALL BE SATISFACTORY TO THE TERM LENDERS, TO THE ISSUING
BANK AND TO THE ADMINISTRATIVE AGENT, AND THE ADMINISTRATIVE AGENT SHALL HAVE
RECEIVED (I) THIS AGREEMENT, OR, IN THE CASE OF THE TERM LENDERS, AN ADDENDUM,
EXECUTED AND DELIVERED BY EACH AGENT, HOLDINGS, THE BORROWER AND EACH PERSON
THAT IS A LENDER ON THE RESTATEMENT DATE AND (II) AN EXECUTED COUNTERPART OF
EACH OTHER LOAN DOCUMENT REQUIRED TO BE EXECUTED AND DELIVERED ON THE
RESTATEMENT DATE.
In the event that any one or more Persons have not executed and delivered an
Addendum on the date scheduled to be the Restatement Date (each such Person
being referred to herein as a "Non-Executing Person"), the condition referred to
in clause (i) above shall nevertheless be deemed satisfied if on such date the
Borrower and the Administrative Agent shall have designated one or more Persons
(the "Designated Lenders") to assume, in the aggregate, all of the Commitments
that would have been held by the "Non-Executing Persons" (subject to each such
Designated Lender's consent and its execution and delivery of an Addendum).
(B)
CONCURRENT TRANSACTIONS.
THE BORROWER SHALL HAVE DELIVERED NOTICE TO THE
ADMINISTRATIVE AGENT IN ACCORDANCE WITH THE TERMS OF SECTION 4.1 OF THE ORIGINAL
CREDIT AGREEMENT STATING (I) THE BORROWER'S INTENT TO PREPAY IN FULL THE
EXISTING TERM LOANS OUTSTANDING UNDER THE ORIGINAL CREDIT AGREEMENT, AND (II)
THAT THE RESTATEMENT DATE SHALL BE THE EFFECTIVE DATE OF SUCH PREPAYMENT.
(C)
PRO FORMA BALANCE SHEET; FINANCIAL STATEMENTS.
THE LENDERS SHALL HAVE
RECEIVED (I) THE PRO FORMA BALANCE SHEET, (II) AUDITED CONSOLIDATED FINANCIAL
STATEMENTS OF HOLDINGS FOR THE 2005, 2004 AND 2003 FISCAL YEARS AND (III)
UNAUDITED INTERIM CONSOLIDATED FINANCIAL STATEMENTS OF HOLDINGS FOR EACH
QUARTERLY PERIOD ENDED SUBSEQUENT TO THE DATE OF THE LATEST APPLICABLE FINANCIAL
STATEMENTS DELIVERED PURSUANT TO CLAUSE (II) OF THIS PARAGRAPH AS TO
56
WHICH SUCH FINANCIAL STATEMENTS ARE AVAILABLE, AND SUCH FINANCIAL STATEMENTS
SHALL NOT REFLECT ANY MATERIAL ADVERSE CHANGE IN THE CONSOLIDATED FINANCIAL
CONDITION OF HOLDINGS SINCE DECEMBER 31, 2005.
(D)
APPROVALS.
ALL GOVERNMENTAL AND MATERIAL THIRD PARTY APPROVALS NECESSARY,
OR IN THE DISCRETION OF THE ADMINISTRATIVE AGENT, ADVISABLE IN CONNECTION WITH
THE REFINANCING, THE CONTINUING OPERATIONS OF THE GROUP MEMBERS AND THE
TRANSACTIONS CONTEMPLATED HEREBY, AND THE CONSENT OF EACH LANDLORD OF THE LEASED
MORTGAGED PROPERTIES LISTED ON SCHEDULE 1.1(C), SHALL HAVE BEEN OBTAINED AND BE
IN FULL FORCE AND EFFECT, AND ALL APPLICABLE WAITING PERIODS SHALL HAVE EXPIRED
WITHOUT ANY ACTION BEING TAKEN OR THREATENED BY ANY COMPETENT AUTHORITY THAT
WOULD RESTRAIN, PREVENT OR OTHERWISE IMPOSE ADVERSE CONDITIONS ON THE
REFINANCING OR THE FINANCING CONTEMPLATED HEREBY.
(E)
LIEN SEARCHES.
THE ADMINISTRATIVE AGENT SHALL HAVE RECEIVED THE RESULTS
OF A RECENT LIEN SEARCH IN EACH OF THE JURISDICTIONS WHERE THE GROUP MEMBERS