SOON AS PRACTICABLE AFTER ANY PAYMENT
OF TAXES AND OTHER TAXES BY THE BORROWERS TO A GOVERNMENTAL AUTHORITY, THE
BORROWERS SHALL DELIVER TO THE ADMINISTRATIVE AGENT THE ORIGINAL OR A CERTIFIED
COPY OF A RECEIPT ISSUED BY SUCH GOVERNMENTAL AUTHORITY EVIDENCING SUCH PAYMENT,
A COPY OF THE RETURN REPORTING SUCH PAYMENT OR OTHER EVIDENCE OF SUCH PAYMENT
REASONABLY SATISFACTORY TO THE ADMINISTRATIVE AGENT.
ANY NON-U.S. LENDER OR
TREATY LENDER THAT IS ENTITLED TO AN EXEMPTION FROM OR REDUCTION OF WITHHOLDING
TAX WITH RESPECT TO PAYMENTS UNDER THIS AGREEMENT OR ANY NOTE PURSUANT TO THE
LAW OF ANY RELEVANT JURISDICTION OR ANY TREATY SHALL DELIVER TO BORROWERS (WITH
A COPY TO AGENT), AT THE TIME OR TIMES PRESCRIBED BY APPLICABLE LAW, SUCH
PROPERLY COMPLETED AND EXECUTED
24
DOCUMENTATION PRESCRIBED BY APPLICABLE LAW AS WILL PERMIT SUCH PAYMENTS TO BE
MADE WITHOUT WITHHOLDING OR AT A REDUCED RATE.
(J)
SURVIVAL.
THE AGREEMENTS IN THIS SECTION 1.9 SHALL SURVIVE THE
TERMINATION OF THIS CREDIT AGREEMENT AND THE PAYMENT OF THE BORROWERS
OBLIGATIONS.
1.10.
BORROWER REPRESENTATIVE.
EACH BORROWER HEREBY DESIGNATES VERTIS AS
ITS REPRESENTATIVE AND AGENT ON ITS BEHALF FOR THE PURPOSES OF ISSUING NOTICE OF
REVOLVING CREDIT ADVANCES, NOTICE OF ALTERNATIVE CURRENCY REVOLVING CREDIT
ADVANCES AND NOTICE OF CONVERSION/CONTINUATION, GIVING INSTRUCTIONS WITH RESPECT
TO THE DISBURSEMENT OF THE PROCEEDS OF THE LOANS, SELECTING INTEREST RATE
OPTIONS, REQUESTING LETTERS OF CREDIT, GIVING AND RECEIVING ALL OTHER NOTICES
AND CONSENTS HEREUNDER OR UNDER ANY OF THE OTHER LOAN DOCUMENTS AND TAKING ALL
OTHER ACTIONS (INCLUDING IN RESPECT OF COMPLIANCE WITH COVENANTS) ON BEHALF OF
ANY BORROWER OR BORROWERS UNDER THE LOAN DOCUMENTS.
BORROWER REPRESENTATIVE
HEREBY ACCEPTS SUCH APPOINTMENT.
AGENT AND EACH LENDER MAY REGARD ANY NOTICE OR
OTHER COMMUNICATION PURSUANT TO ANY LOAN DOCUMENT FROM BORROWER REPRESENTATIVE
AS A NOTICE OR COMMUNICATION FROM ALL BORROWERS.
EACH WARRANTY, COVENANT,
AGREEMENT AND UNDERTAKING MADE ON ITS BEHALF BY BORROWER REPRESENTATIVE SHALL BE
DEEMED FOR ALL PURPOSES TO HAVE BEEN MADE BY SUCH BORROWER AND SHALL BE BINDING
UPON AND ENFORCEABLE AGAINST SUCH BORROWER TO THE SAME EXTENT AS IT IF THE SAME
HAD BEEN MADE DIRECTLY BY SUCH BORROWER.
SECTION 2.
CONDITIONS TO LOANS
The obligations of Lenders and L/C Issuers to make Loans, including to issue or
cause to be issued Letters of Credit, are subject to satisfaction or waiver of
all of the applicable conditions set forth below.
2.1.
CONDITIONS TO INITIAL LOANS.
THE OBLIGATIONS OF LENDERS AND L/C
ISSUERS TO MAKE THE INITIAL LOANS AND TO ISSUE OR CAUSE TO BE ISSUED LETTERS OF
CREDIT ON THE CLOSING DATE ARE, IN ADDITION TO THE CONDITIONS PRECEDENT
SPECIFIED IN SECTION 2.2, SUBJECT TO:
(A)
EBITDA OF HOLDINGS AND ITS SUBSIDIARIES, ON A CONSOLIDATED BASIS,
FOR THE TRAILING TWELVE MONTH PERIOD ENDING OCTOBER 31, 2004 (ADJUSTED TO
REFLECT RESTRUCTURING CHARGES, NON-CASH NON-RECURRING CHARGES AND OTHER
ADJUSTMENTS, IF ANY, ALL AS SET FORTH IN SECTION 6.1(A) OF SCHEDULE 1 TO ANNEX
F) SHALL HAVE BEEN AT LEAST $182,000,000;
(B)
AFTER GIVING EFFECT TO THE LOANS, THE