Common use of Certain Post Closing Covenants Clause in Contracts

Certain Post Closing Covenants. (a) On or prior to December 17, 2001, the Borrower shall cause the following requirements to be fulfilled with respect to each of the Additional Mortgaged Properties: each Credit Party owner of the Additional Mortgaged Properties shall have (i) executed and delivered to Lender a Mortgage covering all of the Additional Mortgaged Properties, in proper form for recordation in all places to the extent necessary to create a valid and enforceable first priority lien (subject to Permitted Encumbrances) on such Additional Mortgaged Properties in favor of Lender (or in favor of such other trustee as may be required or desired under local law) and otherwise in form and substance satisfactory to Lender, (ii) delivered to Lender an opinion of counsel in each state in which any of the Additional Mortgaged Properties are located regarding the Mortgages on such properties in form and substance and from counsel satisfactory to Lender, (iii) delivered to Lender commitments for title insurance coverage, and shall have purchased such coverage and delivered evidence thereof to Lender, all in form and scope satisfactory to Lender, covering all of the Additional Mortgaged Properties and (v) delivered to Lender written fair market value appraisals, in each case satisfactory in form and substance to Lender, in its sole discretion. By no later than December 21, 2001, Borrower shall have delivered to Lender evidence that counterparts of all of the Mortgages referred to in clause (i) above of this Section 5.12 (a) have been recorded in all places to the extent necessary to create a valid and enforceable first priority lien (subject to Permitted Encumbrances) on all of the Additional Mortgaged Properties owned by such Credit Party in favor of Lender (or in favor of such other trustee as may be required or desired under local law). (b) On or prior to December 21, 2001, the Borrower shall cause to be delivered to Lender in respect of such Additional Mortgaged Properties current as-built surveys, zoning letters (or zoning title endorsements) and certificates of occupancy. (D) Annex A to the Credit Agreement is hereby amended by adding the following new definition to read in its entirety as follows:

Certain Post Closing Covenants. (a) On or prior to December 17In connection with the Merger, 2001, the Borrower United shall cause OpCo to comply with the following requirements to be fulfilled with respect to each of established in the Additional Mortgaged PropertiesCódigo Fiscal de la Federación, Reglamento del Código Fiscal de la Federación, Resolución Miscelánea Fiscal and in any other applicable Mexican Tax regulation: each Credit Party owner of the Additional Mortgaged Properties shall have (i) executed OpCo shall timely file a merger notice with the Mexican Taxing Authorities (which shall be deemed to have been completed when OpCo files (1) its register in the Registro Federal de Contribuyentes and delivered to Lender a Mortgage covering all (2) the cancellation of the Additional Mortgaged Properties, in proper form for recordation in all places to the extent necessary to create a valid Registro Federal de Contribuyentes of each other ContentCo and enforceable first priority lien (subject to Permitted Encumbrances) on such Additional Mortgaged Properties in favor of Lender (or in favor of such other trustee as may be required or desired under local law) and otherwise in form and substance satisfactory to LenderMerger Sub), (ii) delivered after the Merger, OpCo shall continue to Lender an opinion of counsel engage in each state the activities in which any each other ContentCo and Merger Sub engaged in before the Merger for a minimum period of one year following the effectiveness of the Additional Mortgaged Properties are located regarding the Mortgages on such properties in form and substance and from counsel satisfactory to LenderMerger, (iii) delivered OpCo shall timely file on behalf each other ContentCo and Merger Sub with the Mexican Taxing Authorities (x) the Tax Returns and (y) the information statements required by the Mexican Tax Laws for the taxable period (or portion thereof) ending on the date of the Merger (or, if earlier, the date on which the Merger is deemed to Lender commitments occur for title insurance coverageMexican Federal income Tax purposes), which Tax Returns and information statements shall be true, correct and complete in all material respects, and (iv) OpCo shall pay the Taxes of each other ContentCo and Merger Sub for such taxable period; provided, that United’s obligations in clauses (iii) and (iv) shall be subject to paragraph (d) hereof. Torch shall, and shall have purchased cause its Subsidiaries to, provide United with such coverage cooperation, documentation and delivered evidence thereof to Lender, all in form and scope satisfactory to Lender, covering all of the Additional Mortgaged Properties and (v) delivered to Lender written fair market value appraisals, in each case satisfactory in form and substance to Lender, in its sole discretion. By no later than December 21, 2001, Borrower shall have delivered to Lender evidence that counterparts of all of the Mortgages referred to in clause (i) above of this Section 5.12 (a) have been recorded in all places to the extent necessary to create a valid and enforceable first priority lien (subject to Permitted Encumbrances) on all of the Additional Mortgaged Properties owned by such Credit Party in favor of Lender (or in favor of such other trustee information as may reasonably be required requested by United in connection with the filing requirements described in the preceding sentence, and United shall be entitled to rely on the accuracy of any such documentation or desired under local law)information provided by Torch or its Subsidiaries. (b) On In connection with the Capital Reduction and Prior Capital Reduction, United shall cause OpCo to prepare and maintain the information listed below, provided that any such information, to the extent depending on information of (or related to) the ContentCo Group or Torch (or its applicable Subsidiary) for any Pre-Closing Tax Period, shall be prepared by OpCo relying on the information and documentation provided by Torch (or its applicable Subsidiary): (i) workpapers with the calculation of the CUCA (Cuenta de Capital de Aportación), (ii) all supporting documentation required under Mexican Tax Law for the calculation of the CUCA (including: (v) documentation of shareholders meetings in which the shareholders approved capital reductions or capital increases, (w) if any capital increases were effected by a capitalization of liabilities, supporting documentation for such liabilities, (x) if the capital increases were paid in cash, bank statements showing the wire transfers, (y) if the capital increases were paid in kind, documentation establishing title to the assets contributed and (z) all accounting records reflecting any capital reductions and increases), (iii) workpapers showing the calculation of the CUFIN (Cuenta de Utilidad Fiscal N▇▇▇), and (iv) all supporting documentation required under Mexican Tax Law for the calculation of the CUFIN (including: (w) documentation of shareholders meetings in which the shareholders approved the payment of dividends, (x) any documentation showing dividends received from any Subsidiary, (y) accounting records showing any dividends paid or received and (z) bank statements showing the wire transfer of any dividends paid or received). (c) United shall not, and shall not cause or permit any of its Subsidiaries (including the ContentCo Entities) to, (i) make, change or revoke any Tax election (including any entity classification election pursuant to Treasury Regulations Section 301.7701-3) with respect to any ContentCo Entity that has retroactive effect to any Pre-Closing Tax Period (other than any entity classification election contemplated by Section 6.2), (ii) amend any material Tax Return of any ContentCo Entity that was filed prior to the Closing or (iii) except to the extent otherwise required pursuant to a “determination” (within the meaning of Section 1313(a) of the Code or any comparable provision of state, local or foreign Tax Law) or a change in applicable Law, take any material position on any material Tax Return of any ContentCo Entity for or in respect of any Pre-Closing Tax Period (or in any Tax Proceeding relating thereto) that is inconsistent with a material position taken by Torch or any of its Subsidiaries (including the ContentCo Group prior to the Closing) and of which position Torch has informed United in writing prior to taking such position, including any material position in respect of the Pre-Closing Restructuring, in the case of each of clauses (i) through (iii), if such election, amendment or position, as applicable, could, individually or in the aggregate, reasonably be expected to result in (x) a material increase in the liability of Torch or any of its Affiliates in respect of Taxes (including pursuant to this Agreement) or (y) any increase in a liability (or any decrease in an asset) taken into account in the determination of ContentCo Indebtedness or ContentCo Working Capital (as finally determined pursuant to Section 1.7). (d) Torch shall have the exclusive right to prepare any Tax Return of each ContentCo Entity for any taxable period (or portion thereof) of such ContentCo Entity ending on or prior to December 21the date of the Merger (or, 2001if earlier, the Borrower date on which the Merger is deemed to occur for Mexican Federal income Tax purposes). All such Tax Returns shall be prepared in a manner consistent with the past practices of Torch and its Subsidiaries, except to the extent otherwise required pursuant to a “determination” (within the meaning of Section 1313(a) of the Code or any comparable provision of state, local or foreign Tax Law) or a change in applicable Law. Torch shall provide United with a reasonable opportunity to review and comment on any such Tax Returns reflecting a material Tax liability reasonably in advance of the due date for filing such Tax Returns, and Torch shall consider in good faith any comments received. Torch shall timely file any such Tax Returns required to be filed on or prior to the Closing Date and shall pay any Taxes shown as due on such Tax Returns. To the extent any such Tax Returns are required to be filed by OpCo after the Closing, United shall cause OpCo to timely file such Tax Returns (to the extent timely received from Torch) and pay any Taxes shown as due on such Tax Returns (subject to reimbursement by Torch in accordance with Section 5.14). Torch shall pay (or shall cause its applicable Subsidiary to pay) any Taxes required to be delivered reflected on any U.S. federal, state or local Tax Return (including any U.S. consolidated, combined or unitary income Tax Return) that includes Torch or any of its Subsidiaries (other than ContentCo Entities), on the one hand, and any ContentCo Entity, on the other hand, and liabilities for any such U.S. federal, state or local Taxes shall not be taken into account in determining ContentCo Indebtedness or ContentCo Working Capital (in each case, as finally determined pursuant to Lender in respect of such Additional Mortgaged Properties current as-built surveys, zoning letters (or zoning title endorsements) and certificates of occupancySection 1.7). (De) Annex A In the event United elects to make an election to close the Credit Agreement taxable year of each ContentCo Entity for which such election is hereby amended available as of the end of the day on the Closing Date, in accordance with the procedures set forth in Treasury Regulations Section 1.245A-5(e)(3)(i), Torch shall provide any cooperation reasonably requested by adding the following new definition United (provided that Torch shall not be required to read in its entirety as follows:incur any unreimbursed costs).