SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C.
FORM 10-Q
Quarterly Report Pursuant to Section 13 or 15 (d) of the Securities and
Exchange Act of 1934
For the quarterly period ended March 27, 1999. Commission file number 333-41239
------------------------------
DUANE READE INC.
(Exact name of registrant as specified in its charter)
DELAWARE 04-3164702
(State or other jurisdiction (IRS Employer Identification Number)
of incorporation or organization)
DRI I Inc.* Delaware 04-3166107
Duane Reade* New York 11-2731721
* Guarantors with respect to the Company's 9 1/4% Senior Subordinated Notes due
2008
440 Ninth Avenue
New York, New York 10001
(Address of principal executive offices (Zip Code)
(212) 273-5700
(Registrant's telephone number, including area code)
-----------------------------
Securities registered pursuant to Section 12(b) of the Act:
Name of each exchange
Title of each class on which registered
------------------- -------------------
Common Stock, $.01 par value per share New York Stock Exchange. Inc.
9 1/4% Senior Subordinated Notes due 2008 None
----------------------------
Securities registered pursuant to Section 12 (g) of the Act:
None.
Indicate by check mark whether the registrant: (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days. Yes |X| No |_|
The number of shares of the Common Stock outstanding as of May 4, 1999:
17,111,908
================================================================================
<PAGE>
INDEX
PAGE
PART I
ITEM 1. - FINANCIAL STATEMENTS (Unaudited)
Consolidated Statements of Operations (Unaudited) -
For the 13 Weeks Ended March 27, 1999 and
March 28, 1998 3
Consolidated Balance Sheets
As of March 27, 1999 (Unaudited) and December 26, 1998 4
Consolidated Statements of Cash Flows (Unaudited) -
For the 13 Weeks Ended March 27, 1999 and
March 28, 1998 5
Notes to Consolidated Financial Statements 6
ITEM 2. - MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS 9
PART II - OTHER INFORMATION 12
<PAGE>
Duane Reade Inc.
Consolidated Statements of Operations (Unaudited)
(In thousands, except per share amounts)
For the 13 Weeks Ended
------------------------
March 27, March 28,
1999 1998
--------- ---------
Net sales $ 190,364 $ 119,383
Cost of sales 144,408 90,577
--------- ---------
Gross profit 45,956 28,806
--------- ---------
Selling, general & administrative expenses 31,721 19,116
Amortization 2,286 1,416
Depreciation 2,377 1,086
Store pre-opening expenses 279 905
--------- ---------
36,663 22,523
--------- ---------
Operating income 9,293 6,283
Interest expense, net 6,780 7,238
--------- ---------
Income (loss) before income taxes 2,513 (955)
Income taxes 477 --
--------- ---------
Income (loss) before extraordinary charge 2,036 (955)
Extraordinary charge, net of income taxes of $-0- -- (23,600)
--------- ---------
Net income (loss) $ 2,036 $ (24,555)
========= =========
Per Common Share - Basic
Income (loss) before extraordinary charge $ 0.12 $ (0.07)
Extraordinary charge -- (1.70)
--------- ---------
Net income (loss) $ 0.12 $ (1.77)
========= =========
Weighted average common shares outstanding 17,088 13,839
========= =========
Per Common Share - Diluted
Income (loss) before extraordinary charge $ 0.11 $ (0.07)
Extraordinary charge -- (1.70)
--------- ---------
Net income (loss) $ 0.11 $ (1.77)
========= =========
Weighted average common shares outstanding 18,402 13,839
========= =========
See accompanying notes to consolidated financial statements.
3
<PAGE>
Duane Reade Inc.
Consolidated Balance Sheets
(In thousands, except share amounts)
<TABLE>
<CAPTION>
March 27, December 28,
1999 1998
--------- ------------
(Unaudited)
<S> <C> <C>
ASSETS
Current Assets
Cash $ 912 $ 869
Receivables 28,665 25,547
Inventories 131,781 134,313
Property held for sale 5,010 11,527
Prepaid expenses and other current assets 5,354 4,774
--------- ---------
TOTAL CURRENT ASSETS 171,722 177,030
Property and equipment, net 81,431 71,974
Goodwill, net of accumulated amortization of $23,473 and $21,954 143,427 144,946
Other assets 36,162 34,190
--------- ---------
TOTAL ASSETS $ 432,742 $ 428,140
========= =========
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities
Accounts payable $ 55,602 $ 50,028
Accrued interest 4,449 3,636
Other accrued expenses 14,732 25,677
Current portion of long-term debt 6,850 5,600
Current portion of capital leases 1,859 2,089
--------- ---------
TOTAL CURRENT LIABILITIES 83,492 87,030
Senior debt, less current portion 305,200 299,350
Capital lease obligations, less current portion 3,737 3,930
Other noncurrent liabilities 14,736 15,041
--------- ---------
TOTAL LIABILITIES 407,165 405,351
--------- ---------
Stockholders' equity
Preferred stock, $0.01 par; authorized 5,000,000 shares;
issued and outstanding: none -- --
Common stock, $0.01 par; authorized 30,000,000 shares;
issued and outstanding 17,111,908 and 16,985,557 shares 171 170
Paid-in capital 126,958 126,207
Accumulated deficit (101,552) (103,588)
--------- ---------
TOTAL STOCKHOLDERS' EQUITY 25,577 22,789
--------- ---------
TOTAL LIABILITIES AND STOCKHOLDERS' EQUITY $ 432,742 $ 428,140
========= =========
</TABLE>
See accompanying notes to consolidated financial statements.
4
<PAGE>
Duane Reade Inc.
Consolidated Statements of Cash Flows (Unaudited)
(In thousands)
<TABLE>
<CAPTION>
For the 13 Weeks Ended
------------------------
March 27, March 28,
1999 1998
--------- ---------
<S> <C> <C>
Cash flows from operating activities:
Net income (loss) $ 2,036 $ (24,555)
Adjustments to reconcile net loss to net cash
provided by operating activities:
Extraordinary charge -- 23,600
Depreciation and amortization of property and equipment 2,377 1,086
Amortization of goodwill and other intangibles 3,049 1,713
Accretion of principal of zero coupon debt -- 1,659
Other 1,074 367
Changes in operating assets and liabilities:
Receivables (3,118) (41)
Inventories 2,532 (12,927)
Accounts payable 5,574 8,017
Prepaid and accrued expenses (10,712) (3,262)
Increase in other (assets) liabilities, net (3,801) (938)
--------- ---------
NET CASH USED IN OPERATING ACTIVITIES (989) (5,281)
--------- ---------
Cash flows from investing activities:
Capital expenditures (11,834) (8,915)
Proceeds from sale of assets 6,517 --
--------- ---------
NET CASH USED IN INVESTING ACTIVITIES (5,317) (8,915)
--------- ---------
Cash flows from financing activities:
Proceeds from initial public offering, net -- 101,606
Proceeds from existing term loan 25,000 130,000
Proceeds from new senior subordinated notes -- 80,000
Repayment of old term loan -- (65,310)
Net borrowings (repayments) - old revolving credit facility -- (24,500)
Repayment of old senior subordinated notes -- (89,893)
Repayment of zero coupon debt -- (99,346)
Premiums paid on early extinguishment of debt -- (11,496)
Fees and expenses related to early extinguishment of debt -- (478)
Repayments of existing term loan (1,400) --
Net repayments - existing revolving credit facility (16,500) --
Debt issuance costs (1,080) (5,042)
Exercise of stock options 752 --
Repayments of capital lease obligations (423) (611)
--------- ---------
NET CASH PROVIDED BY FINANCING ACTIVITIES 6,349 14,930
--------- ---------
Net increase in cash 43 734
Cash at beginning of period 869 261
--------- ---------
Cash at end of period $ 912 $ 995
========= =========
</TABLE>
See accompanying notes to consolidated financial statements.
5
<PAGE>
DUANE READE INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Unaudited)
1. Basis of Presentation
The consolidated financial statements included herein reflect all adjustments
which, in the opinion of management, are necessary to present fairly the results
of operations and financial position of Duane Reade Inc. (the "Company"), and
have been prepared in accordance with the same accounting principles followed in
the presentation of the Company's annual financial statements for the year ended
December 26, 1998. The financial statements should be read in conjunction with
the Company's financial statements included in its Annual Report on Form 10K for
the year ended December 26, 1998. The results for the 13 weeks ended March 27,
1999 are not necessarily indicative of the results expected for the full year.
The Company has no assets or operations other than its investment in its
subsidiary guarantors. Accordingly, the consolidated financial statements
present the combined assets and operations of the subsidiary guarantors.
2. Net Income (Loss ) per Common Share
Net income (loss) per common share is based on the weighted average shares
outstanding during each period in accordance with the provisions of FASB
Statement No. 128 "Earnings Per Share." Basic earnings per share is computed
based on the weighted average number of common shares outstanding during the
period. Diluted earnings per share gives effect to all dilutive potential common
shares outstanding during the period. Potential common shares include shares
issuable upon exercise of the Company's stock options. Potential common shares
relating to options to purchase common stock were not included in the weighted
average number of shares for the 13 weeks ended March 28, 1998 because their
effect would have been anti-dilutive.
3. Income Taxes
Income taxes are recorded based on the estimated effective tax rate expected to
be applicable for the full fiscal year. The effective tax rate is lower than the
statutory rate, reflecting the benefit of net operating loss carryforwards.
While such carryforwards are adequate to offset all federal taxes that are
expected to be payable for the year (and therefore no tax payments are
expected), for accounting purposes, the benefit of certain carryforwards serves
to reduce goodwill, and not income tax expense, resulting in an effective rate
greater than zero.
4. Acquisition
On September 11, 1998, the Company purchased substantially all of the operating
assets (including inventory and leases) of Rock Bottom Stores, Inc., a health
and beauty aid retailer operating 38 stores primarily in the outer boroughs of
New York City (the "Rock Bottom Acquisition"). The purchase price paid was $64.9
million, subject to certain post-closing adjustments. The acquisition, accounted
for under the purchase method, was financed with additional term loans under the
Existing Credit Agreement. The purchase price was allocated to inventory ($18.2
million), property held for sale ($8.2 million), property ($14.7 million),
identifiable intangibles ($5.2 million) and goodwill ($27.8 million) net of
reserves for expenses and store closings ($9.2 million).
Ten stores acquired as part of the acquisition were designated for sale or
closure. These stores were operated for a period of time after the Rock Bottom
Acquisition. Six of these stores were sold in March 1999 at no resultant gain or
loss. One of the remaining stores has been turned back to the landlord and the
Company has been released from the lease obligations. The results of operations
from these ten stores have not been included in the Company's statement of
operations for any period. Their results have been included in goodwill. Any
gain or loss resulting from the stores' sale will be included in goodwill in the
period sold.
6
<PAGE>
DUANE READE INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Unaudited)
The operating results of the Rock Bottom stores to be retained have been
included in the consolidated statement of operations from the date of
acquisition. The unaudited pro forma results for the 13 weeks ended March 28,
1998 presented below assume the acquisition occurred as of December 28, 1997 (in
thousands, except per share amounts):
<TABLE>
<CAPTION>
For the 13 weeks ended
------------------------------
March 27, March 28,
1999 1998
------------ ------------
(Historical) (Pro Forma)
<S> <C> <C>
Net sales $190,364 $161,163
======== ========
Operating income $ 9,293 $ 8,023
======== ========
Income (loss) before extraordinary charge $ 2,036 $ (824)
Extraordinary charge, net of income taxes of $-0- -- (23,600)
-------- --------
Net income (loss) $ 2,036 $(24,424)
======== ========
Per Common Share-Basic:
Income (loss) before extraordinary charge $ 0.12 $ (0.06)
Extraordinary charge -- (1.70)
-------- --------
Net income (loss) $ 0.12 $ (1.76)
======== ========
Per Common Share-Diluted:
Income (loss) before extraordinary charge $ 0.11 $ (0.06)
Extraordinary charge -- $ (1.70)
-------- --------
Net income (loss) $ 0.11 $ (1.76)
======== ========
</TABLE>
In management's opinion, the unaudited pro forma combined results are not
necessarily indicative of the actual results that would have occurred had the
acquisition been consummated at the beginning of fiscal 1998 or of future
results of the combined operations under the ownership and management of the
Company.
5. Refinancing Plan and Initial Public Offering
In February 1998, the Company successfully completed an initial public offering
of its stock which was part of a plan to refinance all of the Company's existing
indebtedness (the "Refinancing Plan") in order to enhance the Company's
financial flexibility to pursue growth opportunities and implement capital
improvements. The Refinancing Plan resulted in a reduction in the Company's
overall indebtedness, a simplification of the Company's capital structure and
access to additional borrowings. The principal components of the Refinancing
Plan were; (i) the sale by the Company of 6.7 million shares of common stock for
net proceeds of approximately $102 million; (ii) the execution of a new secured
credit agreement (the "Existing Credit Agreement") which provides for borrowings
up to approximately $160 million ($130 million of term loans and up to $30
million of revolving loans); (iii) the issuance of $80 million aggregate
principal amount of the Company's 9 1/4% Senior Subordinated Notes due 2008 (the
"Senior Notes") for net proceeds of approximately $77 million; (iv) the
repayment of all outstanding borrowings under the Company's former credit
agreement (the "Old Credit Agreement"); (v) the redemption of the Company's
outstanding Zero Coupon Notes; and (vi) the redemption of the Company's
outstanding 12% Senior Notes due 2002. The interest rates under the Existing
Credit Agreement will be approximately the same as interest rates under the Old
Credit Agreement.
7
<PAGE>
DUANE READE INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Unaudited)
6. Extraordinary Charge
During the 13 weeks ended March 28, 1998, as a result of the completion of the
Refinancing Plan, the Company incurred a $23.6 million extraordinary charge due
to the early extinguishment of debt. The extraordinary charge included
redemption premiums on the Senior Notes and Zero Coupon Notes of approximately
$11.5 million, accelerated amortization of deferred financing costs and other
transaction expenses of approximately $8.1 million, and accelerated accretion of
Zero Coupon Notes to the indenture stated value of approximately $4.0 million.
7. Income (Loss) Per Common Share
The following table sets forth the computation of income (loss) per common share
for the periods presented (in thousands, except per share amounts):
<TABLE>
<CAPTION>
For the 13 Weeks Ended
--------------------------
March 27, March 28,
1999 1998
------- --------
<S> <C> <C>
Income (loss) before extraordinary charge $ 2,036 $ (955)
Extraordinary charge -- (23,600)
------- --------
Net income (loss) $ 2,036 $(24,555)
======= ========
Weighted average number of common shares outstanding
during the period - basic 17,088 13,839
Diluted potential securities 1,314 --
------- --------
Weighted average number of shares outstanding - diluted 18,402 13,839
======= ========
Per common share - basic
Income (loss) before extraordinary charge $ 0.12 $ (0.07)
Extraordinary charge -- (1.70)
------- --------
Net income (loss) $ 0.12 $ (1.77)
------- --------
------- --------
Per common share - diluted
Income (loss) before extraordinary charge $ 0.11 $ (0.07)
Extraordinary charge -- (1.70)
------- --------
Net income (loss) $ 0.11 $ (1.77)
======= ========
</TABLE>
8
<PAGE>
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATION
The information contained herein includes certain forward-looking statements
that involve a number of risks and uncertainties. A number of facts could cause
actual results, performance, achievements of the Company, or industry results to
be materially different from any future results, performance or achievements
expressed or implied by such forward-looking statements. These factors include,
but are not limited to, the competitive environment in the drugstore industry in
general and in the Company's specific market area; inflation, changes in costs
of goods and services; economic conditions in general and in the Company's
specific market areas; demographic changes; changes in prevailing interest rates
and the availability of and terms of financing to fund the anticipated growth of
the Company's business; liability and other claims asserted against the Company;
changes in operation strategy or development plans; the ability to attract and
retain qualified personnel; the significant indebtedness of the Company; labor
disturbance; changes in the Company's acquisition and capital expenditure plans;
and other factors referenced herein. In addition, such forward looking
statements are necessarily dependent upon assumptions, estimates and dates that
may be incorrect or imprecise and involve known and unknown risks, uncertainties
and other factors. Accordingly, any forward-looking statements included herein
do not purport to be predictions of future events or circumstances and may not
be realized. Forward-looking statements can be identified by, among other
things, the use of forward-looking terminology such as "believes," "expects, "
"may, " "will," "should," "seeks," "pro forma," "anticipates," "intends" or the
negative of any thereof or other variations thereon or comparable terminology,
or by discussion of strategy or intentions. Given these uncertainties,
prospective investors are cautioned not to place undue reliance on such
forward-looking statements. The Company disclaims any obligations to update any
such factors or to publicly announce the results of any revisions to any of the
forward-looking statements contained herein to reflect future events or
developments.
Results of Operations
The following sets forth the results of operations as a percentage of sales for
the periods indicated.
<TABLE>
<CAPTION>
For the 13 Weeks Ended
----------------------------------
March 27, 1999 March 28, 1998
-------------- --------------
<S> <C> <C>
Net sales 100.0% 100.0%
Cost of sales 75.9 75.9
----- -----
Gross profit 24.1 24.1
Selling, general and administrative expenses 16.7 16.0
Amortization 1.2 1.2
Depreciation 1.2 0.9
Store pre-opening expenses 0.1 0.7
----- -----
Operating income 4.9 5.3
Interest expense, net 3.6 6.1
----- -----
Income (loss) before income taxes 1.3 (0.8)
Income taxes 0.2 --
----- -----
Income (loss) before extraordinary charge 1.1 (0.8)
Extraordinary charge -- (19.8)
----- -----
Net income (loss) 1.1% (20.6)%
===== =====
</TABLE>
Net sales in the first quarter 1999 were $190.4 million, an increase of 59.5%
over last year's first quarter net sales of $119.4 million. The increase was
attributable to sales from the 28 former Rock Bottom stores that the Company
purchased in September 1998, increased comparable store sales of 7.1%, the
inclusion of nine stores opened during the first quarter of 1998 for the entire
period and the sales from new stores. The Company completed the conversion of
seven Rock Bottom stores and opened three stores during the first quarter of
1999 compared to nine store openings during the first quarter of 1998.
9
<PAGE>
Cost of sales as a percentage of net sales was 75.9% in both quarters resulting
in a gross profit margin of 24.1%.
Selling, general and administrative expenses were $31.7 million or 16.7% of net
sales and $19.1 million or 16.0% of net sales in the first quarter of 1999 and
1998, respectively. The percentage increase in 1999 compared to 1998 resulted
principally from higher administrative costs as well as transition costs of
approximately $600,000 incurred during the first quarter relating to the
integration of the former Rock Bottom stores.
Amortization of goodwill and other intangibles in the first quarter of 1999 and
1998 was $2.3 million and $1.4 million, respectively. The increase in
amortization resulted principally from the amortization of goodwill and
identifiable intangible assets related to the Rock Bottom stores as well as
increases in the amortization of lease acquisition and customer list costs for
pharmacy acquisitions during 1998.
The Company incurred pre-opening costs of $0.3 million during the first quarter
of 1999 related to the opening of three stores. Pre-opening costs in the first
quarter of 1998 of $0.9 million were attributable to the opening of nine stores.
Net interest expense decreased 6.3% to $6.8 million in the first quarter of 1999
from $7.2 million in the first quarter of 1998. The decrease was principally due
to the impact of debt refinancing completed during February 1998 (in connection
with the Refinancing Plan) which resulted in a reduction of certain interest
rates.
The Company anticipates that in 1999 it will begin to utilize the net tax loss
carryforward benefits it has accumulated in past years, and, therefore, began in
the first quarter of 1999 to provide for income tax expense at its anticipated
effective tax rate of 19% (See Note 3 to consolidated financial statements).
The Company's income before extraordinary charge was $2.0 million, compared to a
loss before extraordinary charge of $1.0 million in the first quarter of 1998
primarily as a result of increased sales and gross profit margin, and decreased
interest expense, partially offset by an increase in selling, general and
administrative expenses. First quarter 1998 results also included a $23.6
million extraordinary charge for costs associated with the early extinguishment
of debt as part of the Company's initial public offering and related financing.
Net income for the first quarter of 1999 was $2.0 million compared to a net loss
for the first quarter 1998 of $24.6 million.
Liquidity and Capital Resources
Working capital was $88.2 million and $90.0 million as of March 27, 1999 and
December 26 1998, respectively. The decrease is principally due to reductions in
net owned inventory and property held for sale partially offset by a decrease in
accrued expenses. The decrease in inventory reflects the liquidation of
non-compatible merchandise as a result of the conversion of the former Rock
Bottoms to the hybrid Duane Reade format. Property held for sale was reduced as
a result of the disposition, at no gain or loss, of six stores acquired from
Rock Bottom Stores, Inc. which the Company elected not to continue to operate as
well as those stores' related inventories.
The Company's EBITDA (earnings before interest, taxes, depreciation,
amortization, extraordinary charge and other non-cash charges) for the first
quarter of 1999 increased by 64% to $15.0 million from $9.2 million in first
quarter of 1998. EBITDA as a percentage of sales was 7.9% in 1999 compared to
7.7% in 1998.
For the first quarter of 1999, net cash used in operating activities was $1.0
million, compared to $5.3 million during the first quarter of 1998. The primary
reason for this use of cash was the decrease in accrued expenses of $10.7
million and expenditures relating to lease and customer list acquisitions, which
more than offset the decrease in the Company's investment in inventory.
During the first quarter of 1999, net cash used in investing activities was $5.3
million compared to $8.9 million during the first quarter of 1998. This reflects
capital expenditures in 1999 related to the conversion of former Rock Bottom
stores to the hybrid Duane Reade format, new store openings and remodeling, net
of proceeds related to the disposition of six former Rock Bottom store
locations. The Company sold the leases for the six stores for proceeds of
approximately $3.5 million and liquidated the stores' inventories for proceeds
of approximately $3.0 million.
10
<PAGE>
For the quarter ended March 27, 1999, net cash provided by financing activities
was $ 6.3 million compared to $14.9 million for the quarter ended March 28,
1998. The decrease from last year resulted from the implementation of the
Company's Refinancing Plan during the first quarter of 1998. During the quarter
ended March 27, 1999, the Company secured an additional term loan of $25
million. In addition, the Company increased its revolving credit facility from
$30 million to $40 million. This will provide the Company with additional
flexibility under the Existing Credit Agreement for the Company's working
capital requirements. At March 27, 1999, the Company had no borrowing
outstanding under the revolving credit facility.
The Company's capital requirements primarily result from opening and stocking
new stores. The Company believes that there are significant opportunities to
open additional stores, and currently plans to open approximately 30 to 40
stores during 1999 and 2000. The Company expects to spend approximately $20
million in 1999 on capital expenditures primarily for new and replacement
stores. Working capital is also required to support inventory for the Company's
existing stores. Historically, the Company has been able to lease its store
locations.
The Company records significant accounts receivable related to pharmacy sales in
connection with third party plans and these receivables are current. Prior to
September 8, 1998, the Company had a non-recourse factoring arrangement with an
independent third party, Pharmacy Fund, Inc. (the "Pharmacy Fund") under which
the Company sold it accounts receivable associated with the third party plans.
On September 8, 1998, Pharmacy Fund declared bankruptcy and no longer purchases
the Company's third party plan receivables. The Company believes that it will
not suffer any loss from the bankruptcy. The Company plans to collect its own
receivables for the foreseeable future.
The Company believes that, based on current levels of operations and anticipated
growth, cash flow from operations, together with other available sources of
funds, including borrowings under the Existing Credit Agreement, will be
adequate for at least the next two years to make required payments of principal
and interest on the Company's indebtedness, to fund anticipated capital
expenditures and working capital requirements and to comply with terms of its
debt agreements. The ability of the Company to meet its debt service obligations
and reduce its total debt will be dependent upon the future performance of the
Company and its subsidiaries which, in turn, will be subject to general
economic, financial, business, competitive, legislative, regulatory and other
conditions, many of which are beyond the Company's control. In addition, there
can be no assurance that the Company's operating results, cash flow and capital
resources will be sufficient for repayment of its indebtedness in the future.
Substantially all of the Company's borrowings under the Existing Credit
Agreement bear interest at floating rates; therefore, the Company's financial
condition will be affected by the changes in prevailing interest rates. The
Company has entered into interest rate protection agreements to minimize the
impact from a rise in interest rates.
Tax Benefits from Net Operating Losses
At December 26, 1998, the Company had net operating loss carryforwards ("NOLs")
of approximately $107 million, which are due to expire in the years 2007 through
2018. These NOLs may be used to offset future taxable income through 2018 and
thereby reduce or eliminate the Company's federal income taxes otherwise
payable. The Internal Revenue Code of 1986, as amended (the "Code"), imposes
significant limitations on the utilization of NOLs in the event of an "ownership
change," as defined in Section 382 of the Code (the "Section 382 Limitation").
The Section 382 Limitation is an annual limitation on the amount of
pre-ownership change NOLs that a corporation may use to offset its
post-ownership change income. The Section 382 Limitation is calculated by
multiplying the value of a corporation's stock immediately before an ownership
change by the long-term tax-exempt rate (as published by the Internal Revenue
Service). Generally, an ownership change occurs with respect to a corporation if
the aggregate increase in the percentage of stock ownership (by value) of that
corporation by one or more 5% shareholders (including certain groups of
shareholders who in the aggregate own at least 5% of that corporation's stock)
exceeds 50 percentage points over a three-year testing period. The
Recapitalization caused the Company to experience an ownership change. As a
result, the Company currently is subject to an annual Section 382 Limitation of
approximately $5.1 million on the amount of NOLs generated prior to the
Recapitalization that the Company may utilize to offset future taxable income.
NOLs generated by the Company since the Recapitalization (approximately
11
<PAGE>
$37 million) are not subject to the Section 382 Limitation and may be used to
offset future taxable income. There can be no assurance that any NOLs will be
able to be used by the Company to offset future taxable income or that such NOLs
will not become subject to limitation due to future ownership changes.
Year 2000 Update
The Company is implementing a program to ensure that the Company computer
systems and applications (IT Systems) and non-IT Systems will function properly
beyond 1999. This program includes inventorying year 2000 items; assigning
priorities to the identified items; assessing year 2000 compliance of items
determined to be material to the Company; remediating or preplacing material
items that are not year 2000 compliant; and determining contingency plans that
may be required.
The Company has completed inventorying and prioritizing year 2000 compliance of
its IT Systems and is commencing these phases for its non-IT Systems, which will
include surveying significant third party vendors. The Company is upgrading its
software and expects this phase to be completed by June 30, 1999.
The Company is using both internal and external resources to address year 2000
issues and believes that the cost of such modifications will approximate
$600,000. Approximately $250,000 of this includes system upgrades that had been
previously identified for operational enhancements.
Although management expects to complete the upgrading of all of its software by
mid-1999, the Company will develop a year 2000 contingency plan before mid-1999
if it appears that the Company will not achieve full year 2000 compliance.
Management regularly monitors the status of the year 2000 compliance process.
The failure to correct a material year 2000 problem could result in an
interruption in, or failure of, certain normal business activities or
operations. Such failures could materially and adversely affect the Company's
results of operations, financial condition and liquidity. No assurances,
however, can be given that the Company will be able to identify and address all
year 2000 issues due to their complexity as well as the Company's dependence on
the technical skills of employees and independent contractors and on the
representations and preparedness of third parties with which the Company does
business. Although the Company believes that its efforts are designed to
appropriately identify and address year 2000 issues that are subject to the
Company's reasonable control, there can be no assurance that year 2000 issues
will not have a material adverse effect on the Company's business, financial
condition or results of operations.
Seasonality
In general, sales of drugstore items such as prescription drugs, OTC drugs and
health and beauty care products exhibit limited seasonality in the aggregate,
but do vary by product category. Quarterly results are primarily affected by the
timing of new store openings and the sale of seasonable products. In view of the
Company's recent expansion of seasonal merchandising, the Company expects
slightly greater revenue sensitivity relating to seasonality in the future.
Recently Issued Accounting Pronouncements
FASB Statement No. 133 "Accounting for Derivative Instruments and Hedging
Activities" requires that derivative instruments such as options, forward
contracts and swaps be recorded as assets and liabilities at fair value and
provides guidance for recognition of changes in fair value depending on the
reason for holding the derivative. The Company does not presently have
significant transactions involving derivative instruments, but may do so in the
future. The Company is required to adopt Statement No. 133 for the first quarter
of 2000 and may adopt it earlier.
12
<PAGE>
Market Risk
The financial results of the Company are subject to risk from interest
rate fluctuations on debt which carries variable interest rates. Variable rate
debt outstanding (under the Existing Credit Agreement) was approximately $232
million at March 27, 1999, which is somewhat lower than the Company expects its
outstanding variable debt rate to be during the next twelve months. The
anticipated outstanding balances however, are not expected to be materially
greater than at March 27, 1999. Base on March 27, 1999 outstanding balances, a
0.50% change in interest rates would affect annual results of operations by
approximately $1.2 million. The Company also has $80 million of Senior Notes
outstanding at March 27, 1999. These notes, which bear interest at a fixed 9
1/4%, are not subject to risk from interest rate fluctuations.
The principal objective of the Company's investment management activities
is to maintain acceptable levels of interest rate and liquidity risk to
facilitate the funding needs of the Company. As part of its investment
management, the Company may use derivative financial products such as interest
rate hedges and interest rate swaps. During the quarter ended March 28, 1998,
there were no derivative positions. During the quarter ended March 27, 1999, in
connection with the Existing Credit Agreement requirements, the Company has an
interest rate protection agreement in place.
13
<PAGE>
PART II
OTHER INFORMATION
ITEM 1. Legal Proceedings
The Company is a party to certain legal actions arising in the
ordinary course of business. Based on information presently available to the
Company, the Company believes that it has adequate legal defenses or insurance
coverage for these actions and that the ultimate outcome of these actions will
not have a material adverse effect on the Company.
In addition, the Company is currently party to legal actions arising
out of disputes over the purchase price with respect to the Rock Bottom
Acquisition. The disputed amounts are not material to the Company, and the
Company believes that the ultimate outcome of these actions will not have a
material adverse effect on the Company.
ITEM 2. Changes in Securities and Use of Proceeds.
Not applicable.
ITEM 3. Defaults Upon Senior Securities
None.
ITEM 4. Submission of Matters to a Vote of Security Holders.
Not applicable.
ITEM 5. Other Information
Not applicable.
ITEM 6. Exhibits, Financial Statement Schedules, and Reports on Form
8-K
(a) The following documents are filed as a part of this report:
(i) Financial Statements
(ii) Exhibits:
3.1(i) Amended and Restated Certificate of Incorporation of the Company
(incorporated by reference to Exhibit 3.1(i) to the Company's
Registration Statement No. 333-41239 (the "Common Stock S-1")).
3.1(ii) Form of Amended and Restated Bylaws of the Company (incorporated by
reference to Exhibit 3.1(i) to the Common Stock S-1).
3.2(i) Certificate of Incorporation of DRI I Inc. (incorporated by
reference to Exhibit 3.2(i) to the S-1 Registration Statement No.
333-43313 with respect to the Company's 9 1/4% Senior Subordinated
Notes due 2008 (the "Notes S-1")).
3.2(ii) By-laws of DRI I Inc. (incorporated by reference to Exhibit 3.2(ii)
of the Notes S-1)
3.3 Second Amended and Restated Partnership Agreement of Duane Reade
(incorporated by reference to Exhibit 3.3 of the Notes S-1)
4.1 Form of Indenture (incorporated by reference to Exhibit 4.1 of the
Notes S-1)
14
<PAGE>
10.1 Duane Reade Inc. 1997 Equity Participation Plan (incorporated by
reference to Exhibit 10.1 to the Company's Form S-1 registration
Statement (File No. 333-41239), the "Common Stock S-1").
10.2 Duane Reade Inc. Holding Corp. 1992 Stock Incentive Plan
(incorporated by reference to Exhibit 10.2 to the Common Stock S-1).
10.3 Employment Agreement, dated as of October 27, 1997, between the
Company and Anthony J. Cuti (incorporated by reference to Exhibit
10.3 to the Common Stock S-1).
10.4 Employment Agreement, dated as of February 22, 1993, as amended,
between the Company and Gary Charboneau (incorporated by reference
to Exhibit 10.4 to the Common Stock S-1).
10.5 Employment Agreement, dated as of April 10, 1995, as amended,
between Duane Reade and Jerry M. Ray (incorporated by reference to
Exhibit 10.5 to the Common Stock S-1).
10.6 Employment Letter Agreement, dated as of October 9, 1996, between
Duane Reade and Joseph Lacko (incorporated by reference to Exhibit
10.6 to the Common Stock S-1).
10.7 Employment Letter Agreement, dated as of February 12, 1997, between
the Company and William Tennant (incorporated by reference to
Exhibit 10.7 to the Common Stock S-1).
10.8 Agreement, dated as of November 22, 1996 between Duane Reade and
Drug, Chemical, Cosmetic, Plastics and Affiliated Industries
Warehouse Employees Local 815 (incorporated by reference to Exhibit
10.8 to the Common Stock S-1).
10.9 Agreement, dated July 16, 1992, as amended, between Duane Reade and
Allied Trades Council (incorporated by reference to Exhibit 10.9 to
the Common Stock S-1).
10.10 Agreement, dated February 4, 1997, as amended between Duane Reade
and The Pharmacy Fund, Inc. (incorporated by reference to Exhibit
10.10 to the Common Stock S-1).
10.11 Stockholders and Registration Rights Agreement, dated as of June 18,
1997, among the Company, DLJMB Funding II, Inc., DLJ Merchant
Banking Partners II, L.P., DLJ Diversified Partners, L.P., DLJ First
ESC L.L.C., DLJ Offshore Partners, II, C.V., DLJ EAB Partners, L.P.,
UK Investment Plan 1997 Partners, Bankers Trust New York
Corporation, Conac & Co., Muico & Co., Roton & Co. , Putnam High
Yield Trust, PaineWebber Managed Investment Trust on behalf of
PaineWebber High Income Fund, USL Capital Corporation, Pearlman
Family Partners, The Marion Trust, Bruce L. Weitz, BCIP Associates,
BCIP Trust Associates, L.P., Tyler Capital Fund L.P., Tyler
International, L.P.-II, and Tyler Massachusetts, L.P. (incorporated
by reference to Exhibit 10.13 to the Common Stock S-1).
10.12* Second Amended and Restated Credit Agreement, dated as of March 17,
1999, among Duane Reade, as the Borrower, Duane Reade Inc. and DRI I
Inc., as the Parent Guarantors, Various Financial Institutions set
forth therein, as the Lenders, DLJ Capital Funding, Inc., as the
Syndication Agent for the Lenders, Fleet National Bank, as the
Administrative Agent for the Lenders and Credit Lyonnais New York
Branch, as the Documentation Agent for the Lenders.
10.13 Amended and Restated Partnership Security Agreement, dated as of
September 11, 1998, among Duane Reade Inc. and DRI I Inc. and Fleet
National Bank, as Administrative Agent (Incorporated by reference to
Exhibit 10.15 of the Company's Current Report on Form 8-K dated
September 24, 1998).
10.14 Amended and Restated Borrower Security Agreement, dated as of
September 11, 1998, between Duane Reade and Fleet National Bank as
Administrative Agent (Incorporated by reference to Exhibit 10.16 of
the Company's Current Report on Form 8-K dated September 24, 1998).
10.15 Amended and Restated Holdings Pledge Agreement, dated as of
September 11, 1998, among Duane Reade Inc. and Fleet National Bank,
as Administrative Agent (Incorporated by reference to Exhibit 10.17
of the Company's Current Report on Form 8-K dated September 24,
1998).
15
<PAGE>
10.16* Amendment Agreement to Credit Agreement, dated as of March 17, 1999,
among Duane Reade, Duane Reade Inc., DRI I Inc., various financial
institutions as Lenders, DLJ Capital Funding, Inc., as Syndication
Agent, Fleet National Bank, as Administrative Agent, and Credit
Lyonnais New York Branch, as Documentation Agent .
10.17 Promissory Note, dated as of November 9, 1998, between the Company
and Anthony J. Cuti and (incorporated by reference to Exhibit 10.17
to the Company's 1998 Annual Report on Form 10-K).
27.1* Financial Data Schedule.
* Filed herewith.
(b) Reports on Form 8-K. None.
(c) Financial Statement Schedules: None.
Schedules for which provision is made in the applicable accounting regulations
of the Commission are either not required under the related instructions, are
inapplicable or not material, or the information called for thereby is otherwise
included in the financial statements and therefore has been omitted.
16
<PAGE>
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the
Securities Exchange Act of 1934, the registrant has duly caused this report to
be signed on its behalf by the undersigned, thereunto duly authorized.
Dated: May 10, 1999
DUANE READE INC.
(Registrant)
By: /s/ William J.Tennant
------------------------------------
Name: William J. Tennant
Title: Senior Vice President and
Chief Financial Officer
Pursuant to the requirements of the Securities Exchange Act of 1934,
this report has been signed below by the following persons on behalf of the
registrant in the capacities indicated on May 10, 1999:
SIGNATURES TITLES
---------- ------
/s/ Anthony J. Cuti President and Chief Executive Officer and Director
- ----------------------- (Principal Executive Officer)
Anthony J. Cuti
/s/ William J. Tennant Senior Vice President, Chief Financial Officer
- ----------------------- (Principal Accounting and Financial Officer)
William J. Tennant
17
<PAGE>
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the
Securities Exchange Act of 1934, the registrant has duly caused this report to
be signed on its behalf by the undersigned, thereunto duly authorized.
Dated: May 10, 1999
DRI I Inc.
By: /s/ William J.Tennant
------------------------------------
Name: William J. Tennant
Title: Senior Vice President and
Chief Financial Officer
Pursuant to the requirements of the Securities Exchange Act of 1934,
this report has been signed on May 10, 1999 by:
SIGNATURES TITLES
---------- ------
/s/ Anthony J. Cuti President and Chief Executive Officer and Director
- ----------------------- (Principal Executive Officer)
Anthony J. Cuti
/s/ William J. Tennant Senior Vice President, Chief Financial Officer
- ----------------------- (Principal Accounting and Financial Officer)
William J. Tennant
18
<PAGE>
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, the registrant has duly caused this report to be signed on
its behalf by the undersigned, thereunto duly authorized.
Dated: May 10, 1999
DUANE READE INC.,
By: DRI I Inc. a general partner By: Duane Reade Inc., a general partner
By: /s/ William J. Tennant By: /s/ William J. Tennant
------------------------------- -----------------------------------
Name: William J. Tennant Name: William J. Tennant
Title: Senior Vice President and Title: Senior Vice President and
Chief Financial Officer Chief Financial Officer
Pursuant to the requirements of the Securities Exchange Act of 1934,
this report has been signed below on May 10, 1999 by the following persons in
the capacities indicated with respect to Duane Reade Inc. and DRI I Inc., the
general partners of Duane Reade, on behalf of Duane Reade (except as otherwise
indicated):
SIGNATURES TITLES
---------- ------
/s/ Anthony J. Cuti President and Chief Executive Officer and Director
- ----------------------- (Principal Executive Officer)
Anthony J. Cuti
/s/ William J. Tennant Senior Vice President, Chief Financial Officer
- ----------------------- (Principal Accounting and Financial Officer)
William J. Tennant
19
ANNEX I
U.S. $275,000,000
SECOND AMENDED AND RESTATED CREDIT AGREEMENT,
dated as of March 17, 1999
(amending and restating the Amended and Restated Credit Agreement,
dated as of September 11, 1998),
among
DUANE READE,
as the Borrower,
DUANE READE INC.
(formerly known as Duane Reade Holding Corp.)
and
DRI I INC.
(formerly known as Duane Reade Inc.),
as the Parent Guarantors,
VARIOUS FINANCIAL INSTITUTIONS,
as the Lenders,
DLJ CAPITAL FUNDING, INC.,
as the Syndication Agent for the Lenders,
FLEET NATIONAL BANK,
as the Administrative Agent for the Lenders,
and
CREDIT LYONNAIS NEW YORK BRANCH, as the Documentation
Agent for the Lenders.
LEAD ARRANGER:
DONALDSON, LUFKIN & JENRETTE SECURITIES CORPORATION
<PAGE>
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
THIS SECOND AMENDED AND RESTATED CREDIT AGREEMENT, dated as of March 17,
1999, is made among DUANE READE, a New York general partnership (the
"Borrower"), DUANE READE INC. (formerly known as Duane Reade Holding Corp.), a
Delaware corporation ("Holdings"), DRI I INC. (formerly known as Duane Reade
Inc.), a Delaware corporation ("DRI I" and, together with Holdings,
collectively, the "Parent Guarantors"), the various financial institutions as
are or may become parties hereto (collectively, the "Lenders"), DLJ CAPITAL
FUNDING, INC. ("DLJ"), as syndication agent (in such capacity, the "Syndication
Agent") for the Lenders, FLEET NATIONAL BANK ("Fleet"), as administrative agent
(in such capacity, the "Administrative Agent") for the Lenders and CREDIT
LYONNAIS NEW YORK BRANCH ("Credit Lyonnais"), as the documentation agent (in
such capacity, the "Documentation Agent") for the Lenders.
W I T N E S S E T H:
WHEREAS, pursuant to the Amended and Restated Credit Agreement, dated as
of September 11, 1998 (together with all Loan Documents (as defined therein), in
each case as amended prior to the date hereof, the "Existing Credit Agreement"),
among the Borrower, the Parent Guarantors, the various financial institutions
party thereto (collectively, the "Existing Lenders"), the Syndication Agent, the
Administrative Agent and the Documentation Agent, the Existing Lenders made and
were committed to make Credit Extensions to the Borrower on the terms and
conditions set forth therein;
WHEREAS, the Borrower and the Parent Guarantors have requested that the
Existing Credit Agreement be amended and restated in its entirety to become
effective and binding on the Borrower and the Parent Guarantors pursuant to the
terms of this Agreement and the Amendment Agreement, and the Lenders (including
the Existing Lenders) have agreed (subject to the terms of this Agreement and
the Amendment Agreement) to amend and restate the Existing Credit Agreement in
its entirety to read as set forth in this Agreement, and it has been agreed by
the parties to the Existing Credit Agreement that (a) the commitments which the
Existing Lenders have agreed to extend to the Borrower under the Existing Credit
Agreement shall be extended or advanced upon the amended and restated terms and
conditions contained in this Agreement and the Amendment Agreement, and (b) any
outstanding credit extensions made and other Obligations outstanding under the
Existing Credit Agreement shall be governed by and deemed to be outstanding
under the amended and restated terms and conditions contained in this Agreement
and the Amendment Agreement, with the intent that the terms of this Agreement
shall supersede the terms of the Existing Credit Agreement (which shall
hereafter have no further effect upon the parties thereto, other than for
accrued fees and expenses and other obligations arising under those provisions
which by their terms survive the termination of the Existing Credit
<PAGE>
Agreement); provided, that any Rate Protection Agreements (as defined in the
Existing Credit Agreement) with any one or more Existing Lenders (or their
respective Affiliates) shall continue unamended and in full force and effect;
WHEREAS, Holdings and the Borrower refinanced (the "Refinancing") their
then outstanding Indebtedness, and in connection with such Refinancing, Daboco
Inc., a New York corporation, a Wholly-owned Subsidiary of Holdings and a
general partner of the Borrower ("Daboco"), merged with and into Holdings (the
"Merger"), with Holdings being the surviving corporation of the Merger;
WHEREAS, approximately $320,550,000 was required to consummate the
Refinancing including fees and expenses related to the Original Transaction (as
defined below), which Holdings and the Borrower raised through:
(a) the issuance by Holdings of 9 1/4% senior subordinated notes due
2008 (the "Senior Subordinated Notes") for gross cash proceeds of at least
$80,000,000;
(b) the issuance and sale by Holdings of approximately 6,700,000
shares of its common stock in an initial public offering (the "IPO") for
gross cash proceeds of at least $110,550,000; and
(c) Borrowings of approximately $130,000,000 which were comprised of
(i) Existing Term A Loans in a principal amount of $50,000,000 and (ii)
Existing Term B Loans in a principal amount of $80,000,000 which loans
shall continue to remain outstanding hereunder in accordance with the
terms hereof (including such terms relating to the amortization thereof
(including Section 3.1.1));
WHEREAS, such proceeds were used:
(a) to defease and redeem Holdings' $123,368,000 aggregate principal
amount at maturity (approximately $100,100,000 Accreted Value) of then
outstanding 15% Senior Subordinated Zero Coupon Notes due 2004 (the
"Holdings Subordinated Notes");
(b) to defease and redeem the Borrower's $89,893,000 aggregate
principal amount of then outstanding 12% Senior Notes due September 15,
2002, Series B (the "Senior Notes");
(c) to refinance approximately $90,000,000 of Indebtedness then
outstanding under the Borrower's existing senior credit facilities,
evidenced by that certain credit agreement, dated as of September 30, 1997
(as amended, supplemented, amended and restated or otherwise modified
prior to the Closing Date, the "September 1997 Credit Agreement"), among
the Borrower, Holdings, Daboco, DRI I, the lenders parties thereto,
-3-
<PAGE>
DLJ, as the syndication agent, Fleet, as the administrative agent, and
Credit Lyonnais New York Branch, as the documentation agent; and
(d) to pay accrued interest, prepayment premiums and reasonable fees
and expenses associated with the Refinancing, the Merger, the issuance of
the Senior Subordinated Notes, the IPO, the financing contemplated under
the February 1998 Credit Agreement and all other transactions related
thereto (collectively, the "Original Transaction") of approximately
$32,000,000;
WHEREAS, in connection with certain purchases of inventory, the Borrower
made Borrowings of August 1998 Term C Loans on August 14, 1998 in a principal
amount of $10,000,000 which loans shall continue to remain outstanding hereunder
in accordance with the terms hereof (including such terms relating to the
amortization thereof (including Section 3.1.1));
WHEREAS, pursuant to an Asset Purchase Agreement, dated August 4, 1998
(the "Asset Purchase Agreement"), among the Borrower (as successor to Holdings
thereunder by an assignment dated as of September 10, 1998 between Holdings and
the Borrower), Rock Bottom Stores, Inc., a Delaware corporation ("Rock Bottom")
and Connrak Distributors, Inc., a Delaware corporation ("Connrak"; and, together
with Rock Bottom, the "Sellers"), the Borrower acquired (the "Rock Bottom
Acquisition"; and together with the financings contemplated hereunder and all
other transactions related thereto, collectively, the "Rock Bottom Transaction";
and together with the Original Transaction, collectively, the "Transaction")
substantially all of the assets (and certain liabilities related thereto) and
properties used by the Sellers in their retail health, beauty aid and drug store
business in various locations throughout the greater New York City area;
WHEREAS, in connection with the Rock Bottom Transaction, the Borrower made
Borrowings of September 1998 Term C Loans on September 11, 1998 in a principal
amount of $70,000,000 which loans shall continue to remain outstanding hereunder
in accordance with the terms hereof (including such terms relating to the
amortization thereof (including Section 3.1.1));
WHEREAS, in connection with the ongoing working capital and general
corporate needs of the Borrower, the Borrower desires to obtain or continue the
following financing facilities from the Lenders:
(a) an Additional Term C Loan Commitment pursuant to which
Borrowings of Additional Term C Loans will be made to the Borrower on the
Amendment Effective Date in a maximum, original principal amount of
$25,000,000 (the "New Transaction");
(b) a Revolving Loan Commitment (to include availability for
Revolving Loans, Swing Line Loans and Letters of Credit) pursuant to which
Borrowings of Revolving Loans, in a maximum aggregate outstanding
principal amount (together with the aggregate outstanding amount of all
Swing Line Loans and Letter of Credit Outstandings)
-4-
<PAGE>
not to exceed $30,000,000 are and will continue to be made to the Borrower
from time to time on and subsequent to the Amendment Effective Date but
prior to the Revolving Loan Commitment Termination Date;
(c) a Letter of Credit Commitment pursuant to which the Issuer does
and will continue to issue Letters of Credit for the account of the
Borrower from time to time on and subsequent to the Amendment Effective
Date but prior to the Revolving Loan Commitment Termination Date in a
maximum aggregate Stated Amount at any one time outstanding not to exceed
$10,000,000 (provided, that the aggregate outstanding amount of all
Revolving Loans, Swing Line Loans and Letter of Credit Outstandings at any
time shall not exceed the then existing Revolving Loan Commitment Amount);
and
(d) a Swing Line Loan Commitment pursuant to which Borrowings of
Swing Line Loans in an aggregate outstanding principal amount not to
exceed $5,000,000 were and will continue to be made to the Borrower on and
from time to time subsequent to the Amendment Effective Date but prior to
the Revolving Loan Commitment Termination Date (provided, that the
aggregate outstanding amount of all Swing Line Loans, Revolving Loans and
Letter of Credit Outstandings at any time shall not exceed the then
existing Revolving Loan Commitment Amount);
with the proceeds of the Credit Extensions to be used for the purposes set forth
in Section 7.1.9; and
WHEREAS, the Lenders and the Issuer are willing, on the terms and subject
to the conditions set forth in the Amendment Agreement (including Article III
thereof) and hereinafter set forth (including Article V), to so amend and
restate the Existing Credit Agreement and to extend the Commitments and make the
Loans described herein to the Borrower and issue (or participate in) Letters of
Credit for the account of the Borrower;
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.1. Defined Terms. The following terms (whether or not
underscored) when used in this Agreement, including its preamble and recitals,
shall, except where the context otherwise requires, have the following meanings
(such meanings to be equally applicable to the singular and plural forms
thereof):
"Accreted Value" is defined in the indenture relating to the Holdings
Subordinated Notes
-5-
<PAGE>
and entered into by and between Holdings and The Connecticut National Bank, as
trustee thereunder, as in effect on the Closing Date.
"Additional Term C Loan Commitment" is defined in Section 2.1.1.
"Additional Term C Loan Commitment Amount" means $25,000,000.
"Additional Term C Loans" is defined in Section 2.1.1.
"Additional Term C Note" means a promissory note of the Borrower payable
to the order of any Lender, in the form of Exhibit A-6 hereto (as such
promissory note may be amended, endorsed or otherwise modified from time to time
in accordance with the terms hereof and thereof), evidencing the aggregate
Indebtedness of the Borrower to such Lender resulting from outstanding
Additional Term C Loans, and also means all other promissory notes accepted from
time to time in substitution therefor or renewal thereof.
"Administrative Agent" is defined in the preamble and includes each other
Person as shall have subsequently been appointed as the successor Administrative
Agent pursuant to Section 10.4.
"Administrative Agent's Fee Letter" means the confidential fee letter,
dated as of March 17, 1999, between the Borrower and the Administrative Agent
which supersedes the confidential fee letter, dated as of September 11, 1998,
between the Borrower and the Administrative Agent.
"Affected Lender" is defined in Section 4.10.
"Affiliate" of any Person means any other Person which, directly or
indirectly, controls, is controlled by or is under common control with such
Person (excluding any trustee under, or any committee with responsibility for
administering, any Plan). A Person shall be deemed to be "controlled by" any
other Person if such other Person possesses, directly or indirectly, power (a)
to vote 10% or more of the securities (on a fully diluted basis) having ordinary
voting power for the election of directors or managing general partners, or (b)
to direct or cause the direction of the management and policies of such Person
whether by contract or otherwise.
"Agent" means, as the context may require, the Administrative Agent and/or
the Syndication Agent.
"Agreement" means, on any date, the Existing Credit Agreement as amended
and restated as of the Amendment Effective Date as the same may thereafter from
time to time be further amended, supplemented, amended and restated, or
otherwise modified and in effect on such date.
"Alternate Base Rate" means, for any day and with respect to all Base Rate
Loans, the
-6-
<PAGE>
higher of: (a) 0.50% per annum above the Federal Funds Rate most recently
determined by the Administrative Agent; and (b) the rate of interest in effect
for such day as most recently publicly announced or established by the
Administrative Agent in Boston, Massachusetts, as its "prime rate." (The "prime
rate" is a rate set by the Administrative Agent based upon various factors
including the Administrative Agent's costs and desired return, general economic
conditions and other factors, and is used as a reference point for pricing some
loans, which may be priced at, above or below such announced rate.) Any change
in the reference rate established or announced by the Administrative Agent shall
take effect at the opening of business on the day of such establishment or
announcement.
"Amendment Effective Date" means the date all closing conditions set forth
in Section 3.1 of the Amendment Agreement are satisfied.
"Amendment Agreement" means the Amendment Agreement, dated as of March 17,
1999, among the Borrower, the Parent Guarantors, the Lenders party thereto, the
Documentation Agent and the Agents.
"Amendment Effective Date Certificate" means the amendment effective date
certificate executed and delivered by Holdings pursuant to the terms of the
Amendment Agreement, substantially in the form of Exhibit D hereto.
"Applicable Commitment Fee" means, (a) for each day from September 1998
Closing Date through (but excluding) the date upon which the Compliance
Certificate for the second full Fiscal Quarter following September 1998 Closing
Date is delivered or required to be delivered by Holdings to the Administrative
Agent pursuant to clause (d) of Section 7.1.1, a fee which shall accrue at a
rate of 1/2 of 1% per annum, and (b) for each day thereafter, a fee which shall
accrue at the applicable rate per annum set forth below under the column
entitled "Applicable Commitment Fee", determined by reference to the Leverage
Ratio as in effect for the Fiscal Quarter last ended as of such time of
determination:
Applicable
Leverage Ratio Commitment Fee
-------------- --------------
greater than or equal to 3.5 0.500%
less than 3.5 0.375%
With respect to any time of determining the Applicable Commitment Fee, the
Leverage Ratio used to compute the Applicable Commitment Fee shall be equal to
the Leverage Ratio set forth in the Compliance Certificate most recently
delivered by Holdings to the Administrative Agent, as of such time of
determination pursuant to clause (d) of Section 7.1.1. Changes in the Applicable
Commitment Fee resulting from a change in the Leverage Ratio shall become
effective upon delivery by Holdings to the Administrative Agent of a new
Compliance
-7-
<PAGE>
Certificate pursuant to clause (d) of Section 7.1.1. If Holdings fails to
deliver a Compliance Certificate within the number of days required pursuant to
clause (d) of Section 7.1.1, the Applicable Commitment Fee from and including
the first day after the date on which such Compliance Certificate was required
to be delivered through (but excluding) the date Holdings actually delivers to
the Administrative Agent an appropriately completed Compliance Certificate shall
conclusively equal the highest Applicable Commitment Fee set forth above.
"Applicable Margin" means at all times during the applicable periods set
forth below,
(a) from the Amendment Effective Date through (but excluding) the
date upon which the Compliance Certificate for the second full Fiscal
Quarter following the Amendment Effective Date is delivered by Holdings to
the Administrative Agent pursuant to clause (d) of Section 7.1.1, with
respect to the unpaid principal amount of each Additional Term C Loan
maintained as a (i) Base Rate Loan, 2.25% per annum and (ii) LIBO Rate
Loan, 3.25% per annum;
(b) from October 8, 1998 through (but excluding) the date upon which
the Compliance Certificate for the second full Fiscal Quarter following
the September 1998 Closing Date is delivered by Holdings to the
Administrative Agent pursuant to clause (d) of Section 7.1.1, with respect
to the unpaid principal amount of each Existing Term C Loan maintained as
a (i) Base Rate Loan, 2.25% per annum and (ii) LIBO Rate Loan, 3.25% per
annum;
(c) from the September 1998 Closing Date through (but excluding) the
date upon which the Compliance Certificate for the second full Fiscal
Quarter following the September 1998 Closing Date is delivered by Holdings
to the Administrative Agent pursuant to clause (d) of Section 7.1.1, with
respect to the unpaid principal amount of (i) each Term B Loan maintained
as a (A) Base Rate Loan, 2.00% per annum and (B) LIBO Rate Loan, 3.00% per
annum, (ii) each Swing Line Loan (each of which shall be borrowed and
maintained only as a Base Rate Loan), 1.75% per annum, and (iii) each Term
A Loan and each Revolving Loan maintained as (A) a Base Rate Loan, 1.75%
per annum and (B) a LIBO Rate Loan, 2.75% per annum; and
(d) (i) at all times from and after the date of such delivery of the
Compliance Certificate described in clause (c) above, with respect to the
unpaid principal amount of (A) each Swing Line Loan (each of which shall
be borrowed and maintained only as a Base Rate Loan) and each Term A Loan
and each Revolving Loan maintained as a Base Rate Loan, by reference to
the Leverage Ratio and at the applicable percentage per annum set forth
below under the column entitled "Applicable Margin for Term A Loans,
Revolving Loans and Swing Line Loans maintained as Base Rate Loans"; (B)
each Term A Loan and each Revolving Loan maintained as a LIBO Rate Loan,
by reference to the Leverage Ratio and at the applicable percentage per
annum set forth below under the column entitled "Applicable Margin for
Term A Loans and Revolving Loans Maintained
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as LIBO Rate Loans"; (C) each Term B Loan maintained as a Base Rate Loan
by reference to the Leverage Ratio and at the applicable percentage per
annum set forth below under the column entitled "Applicable Margin for
Term B Loans maintained as Base Rate Loans"; (D) each Term B Loan
maintained as a LIBO Rate Loan, by reference to the Leverage Ratio and at
the applicable percentage per annum set forth below under the column
entitled "Applicable Margin for Term B Loans maintained as LIBO Rate
Loans"; (D) each Existing Term C Loan maintained as a Base Rate Loan by
reference to the Leverage Ratio and at the applicable percentage per annum
set forth below under the column entitled "Applicable Margin for Term C
Loans maintained as Base Rate Loans"; and (F) each Existing Term C Loan
maintained as a LIBO Rate Loan, by reference to the Leverage Ratio and at
the applicable percentage per annum set forth below under the column
entitled "Applicable Margin for Term C Loans maintained as LIBO Rate
Loans" and (ii) at all times from and after the date of such delivery of
the Compliance Certificate described in clause (a) above, with respect to
the unpaid principal amount of (A) each Additional Term C Loan maintained
as a Base Rate Loan by reference to the Leverage Ratio and at the
applicable percentage per annum set forth below under the column entitled
"Applicable Margin for Term C Loans maintained as Base Rate Loans"; and
(B) each Additional Term C Loan maintained as a LIBO Rate Loan, by
reference to the Leverage Ratio and at the applicable percentage per annum
set forth below under the column entitled "Applicable Margin for Term C
Loans maintained as LIBO Rate Loans":
<TABLE>
<CAPTION>
Applicable
Margin for
Term A Loans, Applicable
Revolving Loans Margin for Applicable Applicable Applicable Applicable
and Term A Loans and Margin for Margin for Margin for Term Margin for Term C
Swing Line Loans Revolving Loans Term B Loans Term B Loans C Loans Loans
maintained as maintained as maintained as maintained as maintained as maintained as
Leverage Ratio Base Rate Loans LIBO Rate Loans Base Rate Loans LIBO Rate Loans Base Rate Loans LIBO Rate Loans
-------------- --------------- --------------- --------------- --------------- --------------- ---------------
<S> <C> <C> <C> <C> <C> <C>
> 5.00 1.75% 2.75% 2.00% 3.00% 2.25% 3.25%
<=5.00 and >= 4.00 1.50% 2.50% 1.75% 2.75% 2.00% 3.00%
<=4.00 and >= 3.50 1.00% 2.00% 1.75% 2.75% 2.00% 3.00%
<=3.50 and >= 3.00 0.50% 1.50% 1.75% 2.75% 2.00% 3.00%
<=3.00 0.25% 1.25% 1.75% 2.75% 2.00% 3.00%
</TABLE>
The Leverage Ratio used to compute the Applicable Margin for Swing Line
Loans, Term A Loans, Term B Loans, Term C Loans and Revolving Loans shall
be equal to the Leverage Ratio set forth in the Compliance Certificate
most recently delivered by Holdings to the Administrative Agent pursuant
to clause (d) of Section 7.1.1. Changes in the Applicable Margin for such
Loans resulting from a change in the Leverage Ratio shall become effective
upon delivery by Holdings to the Administrative Agent of a new Compliance
Certificate pursuant to clause (d) of Section 7.1.1. If Holdings fails to
deliver a Compliance Certificate within the number of days required
pursuant to clause (d) of Section 7.1.1, the Applicable Margin for Swing
Line Loans, Term A Loans, Term B Loans, Term C Loans and Revolving Loans
from and including the first day after the date on which such Compliance
Certificate was required to be delivered through (but
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excluding) the date Holdings delivers to the Administrative Agent an
appropriately completed Compliance Certificate shall conclusively equal
the highest Applicable Margin for Swing Line Loans, Term A Loans, Term B
Loans, Term C Loans and Revolving Loans of the same type set forth above.
"Arranger" means Donaldson, Lufkin & Jenrette Securities Corporation, a
Delaware corporation.
"Asset Purchase Agreement" is defined in the seventh recital.
"Assigned Amount" is defined in Section 11.11.1.
"Assignee Lender" is defined in Section 11.11.1.
"Assignor Lender" is defined in Section 11.11.1.
"August 1998 Term C Loans" means the Term C Loans (as defined in the
February 1998 Credit Agreement) held by the Lenders under the February 1998
Credit Agreement which have been designated as August 1998 Term C Loans
hereunder pursuant to Section 2.3.3.
"August 1998 Term C Note" means a promissory note of the Borrower payable
to the order of any Lender, in the form of Exhibit A-4 hereto (as such
promissory note may be amended, endorsed or otherwise modified from time to time
in accordance with the terms hereof and thereof), evidencing the aggregate
Indebtedness of the Borrower to such Lender resulting from outstanding August
1998 Term C Loans, and also means all other promissory notes accepted from time
to time in substitution therefor or renewal thereof.
"Authorized Officer" means, relative to any Obligor, those of its officers
whose signatures and incumbency shall have been certified to the Administrative
Agent and the Lenders pursuant to Section 3.1.2 of the Amendment Agreement.
"Base Financial Statements" is defined in clause (a) of Section 3.1.6 of
the Amendment Agreement.
"Base Rate Loan" means a Loan bearing interest at a fluctuating rate
determined by reference to the Alternate Base Rate.
"Borrower" is defined in the preamble.
"Borrower Defeasement/Redemption Documents" means the notices and
documentation pursuant to which the Borrower deposited at least $99,017,468.05
in an irrevocable trust for the purpose of defeasing the Senior Notes and
concurrently issued redemption notices pursuant to
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<PAGE>
which the Borrower redeemed all such Senior Notes no later than March 16, 1998,
at a redemption price of no more than 104.5% of the principal amount thereof.
"Borrower Partnership Agreement" means the Second Amended and Restated
Agreement of Partnership of Duane Reade, dated as of September 25, 1992, between
Daboco and DRI I, as in effect on the Closing Date and as amended or otherwise
modified from time to time in accordance with the terms hereof and thereof.
"Borrower Pledge Agreement" means the Pledge Agreement, executed and
delivered by the Borrower pursuant to the September 1998 Amendment Agreement (a
conformed copy of which is attached hereto as Exhibit G-2), as amended,
supplemented, amended and restated or otherwise modified from time to time.
"Borrower Security Agreement" means the Amended and Restated Security
Agreement, executed and delivered by the Borrower pursuant to the September 1998
Amendment Agreement (a conformed copy of which is attached hereto as Exhibit
F-2), as amended, supplemented, amended and restated or otherwise modified from
time to time.
"Borrowing" means Loans of the same type and, in the case of LIBO Rate
Loans, having the same Interest Period made by the relevant Lenders on the same
Business Day and pursuant to the same Borrowing Request in accordance with
Section 2.1.
"Borrowing Request" means a loan request and certificate duly executed by
an Authorized Officer of the Borrower, substantially in the form of Exhibit B-1
hereto.
"Business Day" means any day which is neither a Saturday or Sunday nor a
legal holiday on which banks are authorized or required to be closed in New York
City or Boston, Massachusetts and, with respect to Borrowings of, interest rate
determinations with respect to, Interest Periods with respect to, payments of
principal and interest in respect of, conversions of Base Rate Loans into, and
continuations of LIBO Rate Loans as, LIBO Rate Loans, on which dealings in
Dollars are carried on in the London interbank market.
"Capital Expenditures" means, with respect to any Person, for any period,
the sum (without duplication) of (a) the aggregate amount of all expenditures of
such Person and its Subsidiaries for fixed or capital assets made during such
period which, in accordance with GAAP, would be classified as capital
expenditures, and (b) the aggregate amount of all Capitalized Lease Liabilities
incurred during such period by such Person and its Subsidiaries.
"Capital Stock" means, with respect to any Person, (a) any and all shares,
interests, participations, rights or other equivalents of or interests in
(however designated) corporate or capital stock, including shares of preferred
or preference stock of such Person, (b) all partnership interests (whether
general or limited) in such Person, (c) all membership interests or limited
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liability company interests in such Person, and (d) all other equity or
ownership interests in such Person of any other type.
"Capitalized Lease Liabilities" means (without duplication) all monetary
obligations of Holdings or any of its Subsidiaries under any leasing or similar
arrangement which, in accordance with GAAP, would be classified as capitalized
leases, and, for purposes of this Agreement and each other Loan Document, the
amount of such obligations shall be the capitalized amount thereof, determined
in accordance with GAAP, and the stated maturity thereof shall be the date of
the last payment of rent or any other amount due under such lease prior to the
first date upon which such lease may be terminated by the lessee without payment
of a penalty.
"Cash Equivalent Investment" means, at any time:
(a) any evidence of Indebtedness, maturing not more than one year
after such time, issued directly, or guaranteed, by the United States of
America or any agency thereof;
(b) commercial paper, maturing not more than nine months from the
date of issue, which is issued by (i) a corporation (other than an
Affiliate of any Obligor) organized under the laws of any state of the
United States or of the District of Columbia and rated at least A-l by S&P
or P-l by Moody's, or (ii) any Lender (or its holding company);
(c) any time deposit, certificate of deposit or banker's acceptance,
maturing not more than one year after such time, maintained with or issued
by either (i) a commercial banking institution (including U.S. branches of
foreign banking institutions) that is a member of the Federal Reserve
System and has a combined capital and surplus and undivided profits of not
less than $500,000,000, or (ii) any Lender;
(d) short-term tax-exempt securities rated not lower than MIG-1/1+
by either Moody's or S&P with provisions for liquidity or maturity
accommodations of 183 days or less;
(e) repurchase agreements which (i) are entered into with any entity
referred to in clause (b) or (c) above or any other financial institution
whose unsecured long-term debt (or the unsecured long-term debt of whose
holding company) is rated at least A- or better by S&P or Baa1 or better
by Moody's and maturing not more than one year after such time, (ii) are
secured by a fully perfected security interest in securities of the type
referred to in clauses (a) through (c) above and (iii) have a market value
at the time of such repurchase agreement is entered into of not less than
100% of the repurchase obligation of such counterparty entity with whom
such repurchase agreement has been entered into;
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<PAGE>
or
(f) shares of investment companies that are registered under the
Investment Company Act of 1940, as amended and invest solely in one or
more of the types of securities described in clauses (a) through (d)
above.
"Casualty Event" means the damage, destruction or condemnation, as the
case may be, of any property of the Borrower, any Parent Guarantor or any of
their respective Subsidiaries.
"Casualty Proceeds" means, with respect to any Casualty Event, the amount
of any insurance proceeds or condemnation awards received by the Borrower, any
Parent Guarantor or any of their respective Subsidiaries in connection
therewith, but excluding any proceeds or awards required to be paid to a
creditor (other than the Lenders) which holds a first-priority Lien permitted by
Section 7.2.3 on the property which is the subject of such Casualty Event.
"CERCLA" means the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended.
"CERCLIS" means the Comprehensive Environmental Response Compensation
Liability Information System List.
"Change in Control" means
(a) (i) the failure of Holdings or DRI I to be a general partner of
the Borrower, or (ii) the failure of Holdings or DRI I at any time to own,
free and clear of all Liens (other than the Liens granted in favor of the
Administrative Agent for the benefit of the Secured Parties under the Loan
Documents) and encumbrances, all right, title and interest in 100% of the
partnership interests of the Borrower;
(b) the failure of Holdings at any time to own, free and clear of
all Liens (other than the Liens granted in favor of the Administrative
Agent for the benefit of the Secured Parties under the Loan Documents) and
encumbrances, all right, title and interest in 100% of the Capital Stock
of DRI I on a fully diluted basis;
(c) a "person" or "group" (within the meaning of Sections 13(d) and
14(d)(2) of the Exchange Act) (other than the DLJMB Entities and their
controlled Affiliates) (i) becomes the "beneficial owner" (as defined in
Rule 13d-3 under the Exchange Act) of more than 35% of the total then
outstanding voting power of the Voting Stock of Holdings or (ii) has the
right or the ability by voting right, contract or otherwise to direct or
control, directly or indirectly, the management or policies of Holdings;
(d) during any period of twenty-four months, individuals who at the
beginning of
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<PAGE>
such period constituted the board of directors of Holdings (together with
any new directors whose election or appointment by such board of
directors, or whose nomination for election by the shareholders of
Holdings, as the case may be, was approved by a vote of 662/3% of the
directors then still in office who were either directors at the beginning
of such period or whose election or nomination for election was previously
so approved) cease for any reason to constitute a majority of the board of
directors then in office; or
(e) any "Change of Control" as such term is defined in the Senior
Subordinated Note Indenture.
"Closing Date" means February 13, 1998, the date the initial Credit
Extensions were made under the February 1998 Credit Agreement.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commitment" means, as the context may require, (a) a Lender's Additional
Term C Loan Commitment, Revolving Loan Commitment and/or Letter of Credit
Commitment and/or (b) the Swing Line Lender's Swing Line Loan Commitment.
"Commitment Amount" means, as the context may require, the Additional Term
C Loan Commitment Amount, the Revolving Loan Commitment Amount, the Letter of
Credit Commitment Amount and/or the Swing Line Loan Commitment Amount.
"Commitment Termination Event" means (a) the occurrence of any Event of
Default described in clauses (a) through (d) of Section 8.1.9, or (b) the
occurrence and continuance of any other Event of Default and either (i) the
declaration of the Loans to be due and payable pursuant to Section 8.3, or (ii)
in the absence of such declaration, the giving of notice to the Borrower by the
Administrative Agent, acting at the direction of the Required Lenders, that the
Commitments have been terminated.
"Compliance Certificate" means a certificate duly completed and executed
by the chief financial or accounting Authorized Officer of Holdings,
substantially in the form of Exhibit E hereto.
"Connrak" is defined in the seventh recital.
"Contingent Liability" means any agreement, undertaking or arrangement by
which any Person guarantees, endorses or otherwise becomes or is contingently
liable upon (by direct or indirect agreement, contingent or otherwise, to
provide funds for payment, to supply funds to, or otherwise to invest in, a
debtor, or otherwise to assure a creditor against loss) the indebtedness,
obligation or any other liability of any other Person (other than by
endorsements of instruments in the course of collection), or guarantees the
payment of dividends or other distributions upon
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<PAGE>
the shares of any other Person. The amount of any Person's obligation under any
Contingent Liability shall (subject to any limitation set forth therein) be
deemed to be the outstanding principal amount of the debt, obligation or other
liability guaranteed thereby.
"Continuation/Conversion Notice" means a notice of continuation or
conversion and certificate duly executed by an Authorized Officer of the
Borrower, substantially in the form of Exhibit C hereto.
"Controlled Group" means all members of a controlled group of corporations
and all members of a controlled group of trades or businesses (whether or not
incorporated) under common control which, together with Holdings, are treated as
a single employer under Section 414(b) or 414(c) of the Code or Section 4001 of
ERISA, or for purposes of Section 412 of the Code, Section 414(m) or Section
414(o) of the Code.
"Credit Extension" means, as the context may require, (a) the making of a
Loan by a Lender and/or (b) the issuance of any Letter of Credit, or the
extension of any Stated Expiry Date of any previously issued Letter of Credit,
by the Issuer.
"Credit Extension Request" means, as the context may require, any
Borrowing Request and/or Issuance Request.
"Credit Lyonnais" is defined in the preamble.
"Daboco" is defined in the third recital.
"Debt" means (without duplication) the aggregate amount of all
Indebtedness of Holdings and its Subsidiaries that is of the type referred to in
clauses (a), (b), (c) and (f) of the definition of "Indebtedness" and any
Contingent Liability in respect of such Indebtedness.
"Default" means any Event of Default or any condition, occurrence or event
which, after notice or lapse of time or both, would, unless cured or waived,
constitute an Event of Default.
"Defeasement/Redemption Documents" means the Holdings
Defeasement/Redemption Documents and the Borrower Defeasement/Redemption
Documents.
"Disbursement" is defined in Section 2.6.2.
"Disbursement Date" is defined in Section 2.6.2.
"Disbursement Due Date" is defined in Section 2.6.2.
"Disclosure Schedule" means the Disclosure Schedule attached hereto as
Schedule I, as it
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may be amended, supplemented or otherwise modified from time to time by the
Borrower with the written consent of the Required Lenders.
"DLJ" is defined in the preamble.
"DLJMB Entities" means DLJMB Funding II, Inc., DLJ Merchant Banking
Partners II, L.P., DLJ Merchant Banking Partners II-A, L.P., DLJ Diversified
Partners, L.P., DLJ Diversified Partners-A, L.P., DLJ First ESC L.L.C., DLJ
Offshore Partners II, C.V., DLJ EAB Partners, L.P., DLJ Millennium Partners,
L.P., DLJ Millennium-A Partners, L.P. and UK Investment Plan 1997 Partners.
"Documentation Agent" is defined in the preamble and includes each other
Person as shall have subsequently been appointed as the successor Documentation
Agent pursuant to Section 10.4.
"Dollar" and the symbol "$" mean lawful money of the United States.
"DRI I" is defined in the preamble.
"EBITDA" means, for any applicable period, the sum (without duplication)
for Holdings and its Subsidiaries on a consolidated basis of
(a) Net Income,
plus
(b) the amount deducted in determining Net Income representing
non-cash charges, including depreciation, amortization and deferred rent,
plus
(c) the amount deducted in determining Net Income representing
income taxes (whether actually paid or deferred),
plus
(d) the amount deducted in determining Net Income representing
Interest Expense,
plus
(e) the amount deducted in determining Net Income representing
extraordinary or
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<PAGE>
non-recurring expenses,
minus
(f) an amount equal to the amount of all extraordinary or
non-recurring non-cash credits included in determining Net Income.
"Environmental Laws" means all applicable federal, state or local
statutes, laws, ordinances, codes, rules and regulations (including consent
decrees and administrative orders) relating to public health and safety and
protection of the environment.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"Event of Default" is defined in Section 8.1.
"Excess Cash Flow" means, for any applicable period, the excess (if any),
of
(a) EBITDA for such applicable period;
over
(b) the sum (without duplication) (for such applicable period) of
(i) the cash portion of Interest Expense (net of interest
income) for such applicable period;
plus
(ii) scheduled payments and optional and mandatory
prepayments, to the extent actually made, of the principal amount of
the Term Loans or any other term Debt (including the principal
component of payments in respect of Capitalized Lease Liabilities
but excluding scheduled payments and optional and mandatory
prepayments of (A) Indebtedness evidenced by the Holdings
Subordinated Notes and the Senior Notes and (B) the Term Loans (as
defined in the September 1997 Credit Agreement)) and mandatory
prepayments of the principal amount of the Revolving Loans pursuant
to clause (f) of Section 3.1.1 in connection with a permanent
reduction of the Revolving Loan Commitment Amount, in each case for
such applicable period;
plus
(iii) all federal, state and foreign income taxes paid or
payable by Holdings and its Subsidiaries during such applicable
period;
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plus
(iv) Capital Expenditures of the Borrower and its Subsidiaries
actually made during such applicable period pursuant to clause (a)
of Section 7.2.7 (excluding Capital Expenditures of the Borrower and
its Subsidiaries constituting Capitalized Lease Liabilities and by
way of the incurrence of Indebtedness permitted pursuant to clause
(e) of Section 7.2.2 to a vendor of any assets permitted to be
acquired pursuant to Section 7.2.7 to finance the acquisition of
such assets);
plus
(v) Investments permitted and actually made, in cash, pursuant
to clauses (d) and (i) of Section 7.2.5 during such applicable
period;
plus
(vi) the amount of the net increase (or minus a net decrease)
of current assets, other than cash and Cash Equivalent Investments,
over current liabilities of Holdings and its Subsidiaries for such
applicable period;
minus
(vii) the amount of tax refunds received by Holdings and its
Subsidiaries during such applicable period.
"Existing Credit Agreement" is defined in the first recital.
"Existing Mortgage" means the mortgage, dated as of the Original Closing
Date and executed and delivered pursuant to Section 5.1.7 of the February 1998
Credit Agreement.
"Existing Revolving Loans" means the Revolving Loans as defined in the
September 1998 Credit Agreement.
"Existing Term A Loans" means the Term A Loans as defined in the September
1998 Credit Agreement.
"Existing Term B Loans" means the Term B Loans as defined in the September
1998 Credit Agreement.
"Existing Term C Loans" means, collectively, the August 1998 Term C Loans
and the
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September 1998 Term C Loans.
"February 1998 Credit Agreement" means the Credit Agreement, dated as of
February 13, 1998 (together with all Loan Documents (as defined therein), in
each case as amended prior to the September 1998 Closing Date), among the
Borrower, the Parent Guarantors, the various financial institutions party
thereto, the Syndication Agent, the Administrative Agent and the Documentation
Agent.
"Federal Funds Rate" means, for any period, a fluctuating interest rate
per annum equal for each day during such period to (a) the weighted average of
the rates on overnight federal funds transactions with members of the Federal
Reserve System arranged by federal funds brokers, as published for such day (or,
if such day is not a Business Day, for the next preceding Business Day) by the
Federal Reserve Bank of New York, or (b) if such rate is not so published for
any day which is a Business Day, the average of the quotations for such day on
such transactions received by the Administrative Agent from three federal funds
brokers of recognized standing selected by it.
"Fee Letter" means the confidential fee letter, dated March 17, 1999,
between the Borrower and the Syndication Agent, which fee letter supersedes the
confidential fee letter, dated September 11, 1998, between such parties.
"Fiscal Quarter" means any fiscal quarter of a Fiscal Year, which fiscal
quarters shall end on the last Saturday of each March, June, September or
December of such Fiscal Year.
"Fiscal Year" means any period of twelve consecutive months ending on the
last Saturday of December of any calendar year.
"Fixed Charge Coverage Ratio" means, at the end of any Fiscal Quarter, the
ratio computed for the period consisting of such Fiscal Quarter and each of the
three immediately prior Fiscal Quarters of
(a) EBITDA for all such Fiscal Quarters
to
(b) the sum (without duplication) of
(i) Capital Expenditures of Holdings and its Subsidiaries
actually made during all such Fiscal Quarters pursuant to clause (a)
of Section 7.2.7 (excluding Capital Expenditures of Holdings and its
Subsidiaries constituting Capitalized Lease Liabilities and by way
of the incurrence of Indebtedness permitted pursuant to clause (e)
of Section 7.2.2 to a vendor of any assets permitted to be acquired
pursuant to Section 7.2.7 to finance the acquisition of such
assets);
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<PAGE>
plus
(ii) the cash portion of Interest Expense (net of cash
interest income) for all such Fiscal Quarters;
plus
(iii) all scheduled payments of principal of the Term Loans
and other term Debt (including the principal component of payments
in respect of any Capitalized Lease Liabilities) during all such
Fiscal Quarters;
plus
(iv) all federal, state and foreign income taxes paid or
payable by Holdings and its Subsidiaries during such applicable
period;
plus
(v) Restricted Payments of the types described in clause (e)
of Section 7.2.6 made during such applicable period.
"Fleet" is defined in the preamble.
"Foreign Subsidiary" means any Subsidiary of the Borrower (a) which is
organized under the laws of any jurisdiction outside of the United States of
America, (b) which conducts the major portion of its business outside of the
United States of America and (c) all or substantially all of the property and
assets of which are located outside of the United States of America.
"F.R.S. Board" means the Board of Governors of the Federal Reserve System
or any successor thereto.
"GAAP" is defined in Section 1.4.
"Guarantees" means, as the context may require, the Parent Guaranty and/or
the Subsidiary Guaranty.
"Guarantors" means, collectively, the Parent Guarantors and the Subsidiary
Guarantors, if any.
"Hazardous Material" means
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(a) any "hazardous substance", as defined by CERCLA;
(b) any "hazardous waste", as defined by the Resource Conservation
and Recovery Act, as amended;
(c) any petroleum product; or
(d) any pollutant or contaminant or hazardous, dangerous or toxic
chemical, material or substance within the meaning of any other applicable
federal, state or local law, regulation, ordinance or requirement
(including consent decrees and administrative orders) relating to or
imposing liability or standards of conduct concerning any hazardous, toxic
or dangerous waste, substance or material, all as amended or hereafter
amended.
"Hedging Obligations" means, with respect to any Person, all liabilities
of such Person under interest rate swap agreements, interest rate cap agreements
and interest rate collar agreements, and all other agreements or arrangements
designed to protect such Person against fluctuations in interest rates or
currency exchange rates.
"herein", "hereof", "hereto", "hereunder" and similar terms contained in
this Agreement or any other Loan Document refer to this Agreement or such other
Loan Document, as the case may be, as a whole and not to any particular Section,
paragraph or provision of this Agreement or such other Loan Document.
"Holdings" is defined in the preamble.
"Holdings Defeasement/Redemption Documents" means the notices and
documentation pursuant to which Holdings deposited at least $106,427,535.00 in
an irrevocable trust for the purpose of defeasing the Holdings Subordinated
Notes and concurrently issued redemption notices pursuant to which Holdings
redeemed all such Holdings Subordinated Notes no later than March 16, 1998, at a
redemption price of no more than 107.5% of the Accreted Value thereof.
"Holdings Pledge Agreement" means the Amended and Restated Pledge
Agreement executed and delivered by Holdings pursuant to Section 3.1.7 of the
September 1998 Amendment Agreement (a conformed copy of which is attached hereto
as Exhibit G-1), as amended, supplemented, amended and restated or otherwise
modified from time to time.
"Holdings Subordinated Notes" is defined in clause (a) of the fifth
recital.
"Impermissible Qualification" means, relative to the opinion or
certification of any independent public accountant as to any financial statement
of any Obligor, any qualification or exception to such opinion or certification
(a) which is of a "going concern" or similar nature,
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(b) which relates to the limited scope of examination of matters relevant to
such financial statement, or (c) which relates to the treatment or
classification of any item in such financial statement and which, as a condition
to its removal, would require an adjustment to such item the effect of which
would be to cause such Obligor to be in default of any of its obligations under
Section 7.2.4.
"including" means including without limiting the generality of any
description preceding such term, and, for purposes of this Agreement and each
other Loan Document, the parties hereto agree that the rule of ejusdem generis
shall not be applicable to limit a general statement, which is followed by or
referable to an enumeration of specific matters, to matters similar to the
matters specifically mentioned.
"Indebtedness" of any Person means (without duplication):
(a) all obligations of such Person for borrowed money and all
obligations of such Person evidenced by bonds, debentures, notes or other
similar instruments;
(b) all obligations, contingent or otherwise, relative to the face
amount of all letters of credit, whether or not drawn, and banker's
acceptances issued for the account of such Person;
(c) all obligations of such Person as lessee under leases which have
been or should be, in accordance with GAAP, recorded as Capitalized Lease
Liabilities;
(d) all other items which, in accordance with GAAP, would be
included as liabilities on the liability side of the balance sheet of such
Person as of the date at which Indebtedness is to be determined;
(e) net liabilities of such Person under all Hedging Obligations;
(f) whether or not so included as liabilities in accordance with
GAAP, all obligations of such Person to pay the deferred purchase price of
property or services, and indebtedness (excluding prepaid interest
thereon) secured by a Lien on property owned or being purchased by such
Person (including indebtedness arising under conditional sales or other
title retention agreements), whether or not such indebtedness shall have
been assumed by such Person or is limited in recourse; provided, however,
that, to the extent such Indebtedness is limited in recourse to the assets
securing such Indebtedness, the amount of such Indebtedness shall be
limited to the fair market value of such assets;
(g) Redeemable Capital Stock; and
(h) all Contingent Liabilities of such Person in respect of any of
the foregoing.
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For all purposes of this Agreement, the Indebtedness of any Person shall include
the Indebtedness of any partnership or joint venture in which such Person is a
general partner or a joint venturer (to the extent such Person is liable for
such Indebtedness).
"Indemnified Liabilities" is defined in Section 11.4.
"Indemnified Parties" is defined in Section 11.4.
"Interest Coverage Ratio" means, at the end of any Fiscal Quarter, the
ratio computed for the period consisting of such Fiscal Quarter and each of the
three immediately prior Fiscal Quarters of:
(a) EBITDA (for all such Fiscal Quarters)
to
(b) the cash portion of Interest Expense (for all such Fiscal
Quarters).
"Interest Expense" means, for any applicable period, the aggregate
consolidated interest expense of Holdings and its Subsidiaries for such
applicable period, as determined in accordance with GAAP, including the portion
of any payments made in respect of Capitalized Lease Liabilities allocable to
interest expense.
"Interest Period" means, as to any LIBO Rate Loan, the period commencing
on the Borrowing date of such Loan or on the date on which the Loan is converted
into or continued as a LIBO Rate Loan, and ending on the date one, two, three or
six months thereafter as selected by the Borrower in its Borrowing Request or
its Conversion/Continuation Notice; provided, however that:
(a) if any Interest Period would otherwise end on a day that is not
a Business Day, that Interest Period shall be extended to the following
Business Day unless the result of such extension would be to carry such
Interest Period into another calendar month, in which event such Interest
Period shall end on the immediately preceding Business Day;
(b) any Interest Period that begins on the last Business Day of a
calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest
Period) shall end on the last Business Day of the calendar month at the
end of such Interest Period;
(c) no Interest Period for any Loan shall extend beyond the Stated
Maturity Date for such Loan;
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(d) no Interest Period applicable to a Term Loan or any portion
thereof shall extend beyond any date upon which is due any scheduled
principal payment in respect of the Term Loans unless the aggregate
principal amount of Term Loans represented by Base Rate Loans, or by LIBO
Rate Loans having Interest Periods that will expire on or before such
date, equals or exceeds the amount of such principal payment; and
(e) there shall be no more than five Interest Periods in effect at
any one time.
"Investment" means, relative to any Person, (a) any loan or advance made
by such Person to any other Person (excluding commission, travel and similar
advances to officers, directors and employees (or individuals acting in similar
capacities) made in the ordinary course of business), and (b) any ownership or
similar interest held by such Person in any other Person. The amount of any
Investment shall be the original principal or capital amount thereof less all
returns of principal or equity thereon (and without adjustment by reason of the
financial condition of such other Person) and shall, if made by the transfer or
exchange of property other than cash, be deemed to have been made in an original
principal or capital amount equal to the fair market value of such property at
the time of such transfer or exchange.
"IPO" is defined in clause (b) of the fourth recital.
"Issuance Request" means a Letter of Credit request and certificate duly
executed by an Authorized Officer of the Borrower, substantially in the form of
Exhibit B-2 hereto.
"Issuer" means Fleet, in its capacity as issuer of Letters of Credit and
any Lender as may be designated by the Borrower (and consented to by the Agents
and such Lender, such consent by the Agents not to be unreasonably withheld), in
its capacity as issuer of Letters of Credit.
"Lender Assignment Agreement" means a Lender Assignment Agreement,
substantially in the form of Exhibit J hereto.
"Lenders" is defined in the preamble.
"Letter of Credit" is defined in Section 2.1.3.
"Letter of Credit Commitment" means, with respect to the Issuer, the
Issuer's obligation to issue Letters of Credit pursuant to Section 2.1.3 and,
with respect to each of the other Lenders that has a Revolving Loan Commitment,
the obligation of each such Lender to participate in such Letters of Credit
pursuant to Section 2.6.1.
"Letter of Credit Commitment Amount" means, on any date, $10,000,000, as
such amount may be reduced from time to time pursuant to Section 2.2.
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"Letter of Credit Outstandings" means, on any date, an amount equal to the
sum of
(a) the then aggregate amount which is undrawn and available under
all issued and outstanding Letters of Credit,
plus
(b) the then aggregate amount of all unpaid and outstanding
Reimbursement Obligations in respect of such Letters of Credit.
"Leverage Ratio" means, at the end of any Fiscal Quarter, the ratio of
(a) total Debt of Holdings and its Subsidiaries on a consolidated
basis outstanding at such time;
to
(b) EBITDA for the period of four consecutive Fiscal Quarters ended
on such date.
"LIBO Rate" means, relative to any Interest Period for LIBO Rate Loans,
the interest rate per annum for deposits in Dollars, if any, for a period equal
to the relevant Interest Period which appears on Telerate Page 3750 at
approximately 11:00 a.m., London time, prior to the commencement of such
Interest Period. If such a rate does not appear on Telerate Page 3750, the LIBO
Rate shall be the rate of interest per annum determined by the Administrative
Agent to be the arithmetic mean (rounded upward to the next 1/16th of 1%) of the
rates of interest per annum at which dollar deposits in the approximate amount
of the Loan to be made or continued as, or converted into, a LIBO Rate Loan by
the Administrative Agent and having a maturity comparable to such Interest
Period would be offered to the Administrative Agent in the London interbank
market at its request at approximately 11:00 a.m., London time, two Business
Days prior to the commencement of such Interest Period.
"LIBO Rate Loan" means a Loan bearing interest, at all times during an
Interest Period applicable to such Loan, at a fixed rate of interest determined
by reference to the LIBO Rate (Reserve Adjusted).
"LIBO Rate (Reserve Adjusted)" means, relative to any Loan to be made,
continued or maintained as, or converted into, a LIBO Rate Loan for any Interest
Period, the rate of interest per annum (rounded upwards to the next 1/16th of
1%) determined by the Administrative Agent as follows:
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LIBO Rate LIBO Rate
(Reserve =
Adjusted)
------------------------------
1.00 - LIBOR Reserve Percentage
The LIBO Rate (Reserve Adjusted) for any Interest Period for LIBO Rate
Loans will be adjusted automatically as to all LIBO Rate Loans then outstanding
as of the effective date of any change in the LIBOR Reserve Percentage.
"LIBOR Office" means, relative to any Lender, the office of such Lender
designated as such on Schedule II hereto or designated in the Lender Assignment
Agreement pursuant to which such Lender became a Lender hereunder or such other
office of a Lender as shall be so designated from time to time by notice from
such Lender to the Borrower and the Administrative Agent, which shall be making
or maintaining LIBO Rate Loans of such Lender hereunder.
"LIBOR Reserve Percentage" means, relative to any Interest Period for LIBO
Rate Loans, the percentage (expressed as a decimal, rounded upward to the next
1/16th of 1%) in effect on such day (whether or not applicable to any Lender)
under regulations issued from time to time by the F.R.S. Board for determining
the maximum reserve requirement (including any emergency, supplemental or other
marginal reserve requirement) with respect to Eurocurrency funding (currently
referred to as "Eurocurrency Liabilities" in Regulation D of the F.R.S. Board).
"Lien" means any security interest, mortgage, pledge, hypothecation,
assignment, deposit arrangement, encumbrance, lien (statutory or otherwise),
charge against or interest in property, or any filing or recording of any
instrument or document in respect of the foregoing, to secure payment of a debt
or performance of an obligation or any other priority or preferential treatment
of any kind or nature whatsoever that has the practical effect of creating a
security interest in property.
"Loan" means, as the context may require, a Revolving Loan, a Term Loan
and/or a Swing Line Loan, of any type.
"Loan Document" means this Agreement, the Amendment Agreement, the Notes,
the Letters of Credit, each Rate Protection Agreement, each Borrowing Request,
each Issuance Request, the Fee Letter, each Pledge Agreement, the Subsidiary
Guaranty, each Mortgage (upon execution and delivery thereof), each Security
Agreement and each other agreement, document or instrument delivered in
connection with this Agreement or any other Loan Document, whether or not
specifically mentioned herein or therein.
"Material Adverse Effect" means (a) a material adverse effect on the
business, assets, debt service capacity, tax position, environmental liability,
financial condition, operations,
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properties or prospects of the Borrower and its Subsidiaries, taken as a whole,
or Holdings and its Subsidiaries, taken as a whole, (b) a material impairment of
the ability of the Borrower or any other Obligor to perform its respective
material obligations under the Loan Documents to which it is or will be a party,
or (c) an impairment of the validity or enforceability of, or a material
impairment of the rights, remedies or benefits available to the Issuer, the
Agents, the Documentation Agent, the Arranger or the Lenders under this
Agreement or any other Loan Document.
"Material Documents" means the Merger Documents, the Senior Subordinated
Note Documents, the Recapitalization Agreement, the Defeasement/Redemption
Documents, the Rapid Remit Program Documents, the Rock Bottom Acquisition
Documents and the Borrower Partnership Agreement, each as amended or otherwise
modified from time to time in accordance with the terms thereof and hereof.
"Merger" is defined in the third recital.
"Merger Documents" means the Agreement and Plan of Merger, dated as of
February 2, 1998, between Holdings and Daboco and the Certificate of Merger of
Daboco Inc. into Duane Reade Inc. referred to therein, in each case as in effect
on the Closing Date and as the same may be amended or otherwise modified from
time to time thereafter in accordance with the terms hereof and thereof.
"Moody's" means Moody's Investors Service, Inc.
"Mortgage" means, collectively, the Existing Mortgage and each Mortgage or
Deed of Trust executed and delivered pursuant to the terms of this Agreement
(including Section 7.1.8(b)), in form and substance reasonably satisfactory to
the Agents.
"Net Debt Proceeds" means, with respect to the incurrence, sale or
issuance by the Borrower, any Parent Guarantor or any of their respective
Subsidiaries of any Debt (other than Debt permitted by Section 7.2.2 as in
effect on the date hereof), the excess of:
(a) the gross cash proceeds received by the Borrower, any Parent
Guarantor or any of their respective Subsidiaries from such incurrence,
sale or issuance,
over
(b) all reasonable and customary underwriting commissions and legal,
investment banking, brokerage and accounting and other professional fees,
sales commissions and disbursements and all other reasonable fees,
expenses and charges, in each case actually incurred in connection with
such incurrence, sale or issuance.
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"Net Disposition Proceeds" means, with respect to any sale, transfer or
other disposition of any assets of the Borrower, any Parent Guarantor or any of
their respective Subsidiaries (other than sales permitted pursuant to clause
(a), (b) or (c) of Section 7.2.9), the excess of
(a) the gross cash proceeds received by the Borrower, any Parent
Guarantor or any of their respective Subsidiaries from any such sale,
transfer or other disposition and any cash payments received in respect of
promissory notes or other non-cash consideration delivered to the
Borrower, such Parent Guarantor or such Subsidiary in respect thereof,
less
(b) the sum (without duplication) of (i) all reasonable and
customary fees and expenses with respect to legal, investment banking,
brokerage, accounting and other professional fees, sales commissions and
disbursements and all other reasonable fees, expenses and charges, in each
case actually incurred in connection with such sale, transfer or other
disposition, (ii) all taxes and other governmental costs and expenses
actually paid or estimated by Holdings (in good faith) to be payable in
cash in connection with such sale, transfer or other disposition, and
(iii) payments made by the Borrower, any Parent Guarantor or any of their
respective Subsidiaries to retire Indebtedness (other than the Credit
Extensions) of the Borrower, such Parent Guarantor or such Subsidiary
where payment of such Indebtedness is required in connection with such
sale, transfer or other disposition;
provided, however, that if, after the payment of all taxes with respect to such
sale, transfer or other disposition, the amount of estimated taxes, if any,
pursuant to clause (b)(ii) above exceeded the tax amount actually paid in cash
in respect of such sale, transfer or other disposition, the aggregate amount of
such excess shall, at such time, constitute Net Disposition Proceeds.
"Net Equity Proceeds" means with respect to the sale or issuance by the
Borrower, any Parent Guarantor or any of their respective Subsidiaries to any
Person, whether pursuant to a public or private offering, of any of its Capital
Stock or any warrants or options with respect to its Capital Stock or the
exercise of any such warrants or options after the Closing Date (other than
pursuant to any subscription agreement, incentive plan or similar arrangement
with any officer, employee or director of the Borrower, such Parent Guarantor or
such Subsidiary), the excess of:
(a) the gross cash proceeds received by the Borrower, such Parent
Guarantor or such Subsidiary from such sale, exercise or issuance,
over
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(b) all reasonable and customary underwriting commissions and legal,
investment banking, brokerage, accounting and other professional fees,
sales commissions and disbursements and all other reasonable fees,
expenses and charges, in each case actually incurred in connection with
such sale, exercise or issuance.
"Net Income" means, for any period, the net income of Holdings and its
Subsidiaries for such period on a consolidated basis, excluding extraordinary
and non-recurring gains and extraordinary losses incurred in connection with the
Transaction.
"Net Worth" means the consolidated net worth of Holdings and its
Subsidiaries.
"New Transaction" is defined in clause (a) of the ninth recital.
"Note" means, as the context may require, a Revolving Note, a Term Note, a
Swing Line Note and/or a Registered Note.
"Obligations" means all obligations (monetary or otherwise) of the
Borrower and each other Obligor arising under or in connection with this
Agreement, any Rate Protection Agreement, the Notes, each Letter of Credit and
each other Loan Document.
"Obligor" means the Borrower or any other Person (other than any Agent,
the Documentation Agent, the Arranger, the Issuer or any Lender) obligated under
any Loan Document.
"Organic Document" means, relative to any Obligor, its partnership
agreement, its certificate of incorporation, its by-laws and all shareholder or
equity holder agreements, voting trusts and similar arrangements to which such
Obligor is a party or which is applicable to any of its Capital Stock, its
partnership agreement and all other arrangements relating to the control or
management of such entity.
"Original Transaction" is defined in clause (d) of the fifth recital.
"Paid Visit" is defined in Section 7.1.5.
"Parent Guarantors" is defined in the preamble.
"Parent Guaranty" means the Obligations of the Parent Guarantors under
Article IX.
"Participant" is defined in Section 11.11.2.
"Partnership Security Agreement" means the Amended and Restated Security
Agreement executed and delivered by an Authorized Officer of each of Holdings
and DRI I pursuant to
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Section 3.1.8 of the September 1998 Amendment Agreement (a conformed copy of
which is attached hereto as Exhibit F-1), as amended, supplemented, amended and
restated or otherwise modified from time to time.
"PBGC" means the Pension Benefit Guaranty Corporation and any successor
entity.
"Pension Plan" means a "pension plan", as such term is defined in section
3(2) of ERISA, which is subject to Title IV of ERISA (other than a multiemployer
plan as defined in section 4001(a)(3) of ERISA), and to which Holdings or any
corporation, trade or business that is, along with Holdings, a member of a
Controlled Group, has or within the prior six years has had any liability,
including any liability by reason of having been a substantial employer within
the meaning of section 4063 of ERISA at any time during the preceding five
years, or by reason of being deemed to be a contributing sponsor under section
4069 of ERISA.
"Percentage" means, relative to any Lender, the applicable percentage
relating to Term A Loans, Term B Loans, August 1998 Term C Loans, September 1998
Term C Loans, Additional Term C Loans or Revolving Loans, as the case may be, as
set forth opposite its name on Schedule II hereto under the applicable column
heading or set forth in Lender Assignment Agreement(s) under the applicable
column heading, as such percentage may be adjusted from time to time pursuant to
Lender Assignment Agreement(s) executed by such Lender and its Assignee
Lender(s) and delivered pursuant to Section 11.11. A Lender shall not have any
Commitment to make Additional Term C Loans or Revolving Loans (as the case may
be) if its percentage under the applicable column heading on Schedule II is
zero. As used herein, "Percentage" as it relates to a Lender's Percentage of
Letter of Credit Outstandings or Swing Line Loans shall be equal to such
Lender's Percentage of Revolving Loans.
"Perfection Certificate" means the Perfection Certificate executed and
delivered by an Authorized Officer of each Obligor that is a party to a Security
Agreement pursuant to Section 7.1.7, substantially in the form of Exhibit I
hereto, as amended, supplemented, amended and restated or otherwise modified
from time to time.
"Person" means any natural person, corporation, partnership, firm,
association, trust, government, governmental agency, limited liability company
or any other entity, whether acting in an individual, fiduciary or other
capacity.
"Pharmaceutical Laws" means Federal, state and local laws, rules or
regulations, codes, orders, decrees, judgments or injunctions issued,
promulgated, approved or entered, relating to dispensing, storing or
distributing prescription medicines or products, including laws, rules or
regulations relating to the qualifications of Persons employed to do the same.
"Pharmacy Fund" means Pharmacy Fund Receivables, Inc., a New York
corporation, and any successor thereto.
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"Plan" means any Pension Plan or Welfare Plan.
"Pledge Agreement" means, as the context may require, the Holdings Pledge
Agreement, the Borrower Pledge Agreement and/or the Subsidiary Pledge Agreement.
"Prescription Receivables" is defined in clause (b) of Section 7.2.9.
"Pro Forma Balance Sheets" is defined in Section 3.1.6 of the Amendment
Agreement.
"Property Waiver" means, with respect to premises leased by an Obligor, a
waiver and release in favor of the Agents for the benefit of the Lenders
relating to any liens the lessor of such premises may have with respect to the
assets of such Obligor located on or at such premises, in form and substance
reasonably satisfactory to the Agents.
"Quarterly Payment Date" means the fifteenth day of each February, May,
August and November, or, if any such day is not a Business Day, the next
succeeding Business Day.
"Rapid Remit Program" shall mean the program pursuant to which
Prescription Receivables are sold by the Borrower to Pharmacy Fund for cash
pursuant to the Rapid Remit Program Documents.
"Rapid Remit Program Documents" shall mean (a) the Purchase Agreement,
dated as of March 10, 1997, between the Borrower and Pharmacy Fund and each
other document or agreement entered into in connection therewith, in each case
as in effect on the Closing Date and as the same may be amended or otherwise
modified from time to time thereafter in accordance with the terms hereof and
thereof, and (b) each of the other documents and agreements entered into in
connection therewith after the Closing Date in form and substance satisfactory
to the Syndication Agent, and as each such other document and agreement may be
amended or otherwise modified from time to time thereafter in accordance with
the terms hereof and thereof.
"Rate Protection Agreement" means, collectively, any interest rate swap,
cap, collar or similar agreement entered into by the Borrower in respect of the
Loans pursuant to the terms of this Agreement under which the counterparty to
such agreement is (or at the time such Rate Protection Agreement was entered
into, was) a Lender or an Affiliate of a Lender.
"Real Property" means, with respect to any Person, all of the right, title
and interest of such Person in and to lands, improvements and fixtures,
including all of the rights, title and interest of such Person as Lessee or
licensee in, to and under leases or licenses of land, improvements and fixtures.
"Recapitalization Agreement" shall mean the Recapitalization Agreement,
dated as of
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June 18, 1997, among the DLJMB Entities and the stockholders parties thereto and
Holdings and each other document or agreement entered into in connection
therewith, in each case as in effect on the Closing Date and as the same may be
amended or otherwise modified from time to time thereafter in accordance with
the terms hereof and thereof.
"Redeemable Capital Stock" means, with respect to any Person, any class of
Capital Stock of such Person or any of its Subsidiaries which, either by its
terms, by the terms of any security into which it is convertible or exchangeable
or otherwise, (a) is or upon the happening of an event or passage of time would
be required to be redeemed on or prior to the first anniversary of the Stated
Maturity Date for the Term C Loans, (b) is redeemable at the option of the
holder thereof at any time prior to such anniversary or (c) is convertible into
or exchangeable for debt securities of such Person or any of its Subsidiaries at
any time prior to such anniversary; provided, however, that for purposes of
clauses (a) and (b) of this definition, any issuances of equity interests or the
right to directly or indirectly acquire any equity interests of such Person
pursuant to any director or employee stock option or similar plan of such Person
shall be deemed not to be Redeemable Capital Stock.
"Refinancing" is defined in the third recital.
"Refunded Swing Line Loans" is defined in clause (b) of Section 2.3.2.
"Register" is defined in clause (b) of Section 2.7.
"Registered Note" means a promissory note of the Borrower payable to the
order of any Lender, in the form of Exhibit A-7 hereto (as such promissory note
may be amended, endorsed or otherwise modified from time to time in accordance
with the terms hereof and thereof), evidencing the aggregate Indebtedness of the
Borrower to such Lender resulting from outstanding Term A Loans, Term B Loans,
Term C Loans, and also means all other promissory notes accepted from time to
time in substitution therefor or renewal thereof.
"Reimbursement Obligation" is defined in Section 2.6.3.
"Reinstatement Date" is defined in Section 4.1.
"Related Fund" means, with respect to any Lender that is a fund that
invests in loans, any other fund that invests in loans and is managed by the
same investment advisor or investment manager as such Lender.
"Release" means a "release", as such term is defined in CERCLA.
"Replacement Lender" is defined in Section 4.10.
"Replacement Notice" is defined in Section 4.10.
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"Required Lenders" means, at any time, Lenders holding greater than 50% of
(a) the Total Exposure Amount or (b) if the Revolving Loan Commitments shall
have been terminated or expired for purposes of acceleration pursuant to Section
8.3, the then outstanding Loans and Letter of Credit Outstandings.
"Resource Conservation and Recovery Act" means the Resource Conservation
and Recovery Act, 42 U.S.C. Section 6901, et seq., as in effect from time to
time.
"Restricted Payments" is defined in Section 7.2.6.
"Revolving Loan" is defined in clause (a) of Section 2.1.2 and shall
include the Existing Revolving Loans held by the Lenders under the Existing
Credit Agreement which have been designated as Revolving Loans hereunder
pursuant to Section 2.3.3.
"Revolving Loan Commitment" is defined in clause (a) of Section 2.1.2.
"Revolving Loan Commitment Amount" means, on any date, $40,000,000, as
such amount may be reduced from time to time pursuant to Section 2.2.
"Revolving Loan Commitment Termination Date" and "Commitment Termination
Date" mean the earliest of (a) February 15, 2004, (b) the date on which the
Revolving Loan Commitment Amount is terminated in full or reduced to zero
pursuant to Section 2.2, and (c) the date on which any Commitment Termination
Event occurs.
"Revolving Note" means a promissory note of the Borrower payable to any
Lender, substantially in the form of Exhibit A-1 hereto (as such promissory note
may be amended, endorsed or otherwise modified from time to time in accordance
with the terms hereof and thereof), evidencing the aggregate Indebtedness of the
Borrower to such Lender resulting from outstanding Revolving Loans, and also
means all other promissory notes accepted from time to time in substitution
therefor or renewal thereof.
"Rock Bottom" is defined in the seventh recital.
"Rock Bottom Acquisition" is defined in the seventh recital.
"Rock Bottom Acquisition Documents" means the Asset Purchase Agreement,
all schedules and exhibits thereto and each other agreement, document or
instrument delivered in connection therewith.
"Rock Bottom Subsidiaries" means Connrak, RB Lindenhurst Corp., a Delaware
corporation, and RB Yonkers Corp., a Delaware corporation.
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"Rock Bottom Transaction" is defined in the seventh recital.
"S&P" means Standard & Poor's Ratings Group, a division of The McGraw-Hill
Companies, Inc.
"Sale and Leaseback Transaction" is defined in Section 7.2.14.
"Secured Parties" means the Lenders, the Issuer, the Agents, the
Documentation Agent, each counterparty to a Rate Protection Agreement that is
(or at the time such Rate Protection Agreement was entered into, was) a Lender
or an Affiliate thereof and in each case, each of their respective successors,
transferees and assigns.
"Security Agreement" means, as the context may require, the Partnership
Security Agreement, the Borrower Security Agreement and/or the Subsidiary
Security Agreement.
"Sellers" is defined in the seventh recital.
"Senior Notes" is defined in clause (b) of the fifth recital.
"Senior Subordinated Note Documents" means the Senior Subordinated Note
Indenture, the Senior Subordinated Notes Guarantee and the Senior Subordinated
Notes, in each case as in effect on the Closing Date and as the same may be
amended or otherwise modified from time to time thereafter in accordance with
the terms hereof and thereof.
"Senior Subordinated Note Indenture" means that certain indenture among
Holdings and the Borrower and DRI I, as subsidiary guarantors, and State Street
Bank and Trust Company of Connecticut, N.A., as Trustee, as in effect on the
Closing Date and as the same may be amended or otherwise modified from time to
time thereafter in accordance with the terms hereof and thereof.
"Senior Subordinated Notes" is defined in clause (a) of the fourth
recital.
"Senior Subordinated Notes Guarantee" means the joint and several
guarantees of the Borrower, DRI I and each other Subsidiary of Holdings in favor
of the holders of the Senior Subordinated Notes as set forth in Article 11 of
the Senior Subordinated Note Indenture and each Subsidiary Guarantee delivered
substantially in the form of Exhibit B to such indenture and, in each case,
subject to the Subordination provisions of Article 12 of such indenture and as
in effect on the Closing Date and as the same may be amended or otherwise
modified from time to time thereafter in accordance with the terms hereof and
thereof.
"September 1997 Credit Agreement" is defined in clause (c) of the fifth
recital.
"September 1998 Amendment Agreement" means the Amendment Agreement, dated
as
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of September 11, 1998, among the Borrower, the Parent Guarantors, the financial
institutions party thereto, the Documentation Agent and the Agents.
"September 1998 Closing Date" means September 11, 1998, the date the
Borrowings of September 1998 Term C Loans were made under the Existing Credit
Agreement.
"September 1998 Term C Loans" means the Additional Term C Loans (as
defined in the Existing Credit Agreement) held by the Lenders under the Existing
Credit Agreement which have been designated as September 1998 Term C Loans
hereunder pursuant to Section 2.3.3.
"September 1998 Term C Note" means a promissory note of the Borrower
payable to the order of any Lender, in the form of Exhibit A-5 hereto (as such
promissory note may be amended, endorsed or otherwise modified from time to time
in accordance with the terms hereof and thereof), evidencing the aggregate
Indebtedness of the Borrower to such Lender resulting from outstanding September
1998 Term C Loans, and also means all other promissory notes accepted from time
to time in substitution therefor or renewal thereof.
"Solvency Certificate" means, as the context may require, a Solvency
Certificate to be executed and delivered by the chief financial or accounting
Authorized Officer of Holdings, substantially in the form of Exhibit L-1 hereto
and/or a Solvency Certificate to be executed and delivered by the chief
financial or accounting Authorized Officer of the Borrower, substantially in the
form of Exhibit L-2 hereto.
"Solvent" means, with respect to any Person and its Subsidiaries on a
particular date, that on such date (a) the fair value of the property of such
Person and its Subsidiaries on a consolidated basis is greater than the total
amount of liabilities, including contingent liabilities, of such Person and its
Subsidiaries on a consolidated basis, (b) the present fair salable value of the
assets of such Person and its Subsidiaries on a consolidated basis is not less
than the amount that will be required to pay the probable liability of such
Person and its Subsidiaries on a consolidated basis on its debts as they become
absolute and matured, (c) such Person does not intend to, and does not believe
that it or its Subsidiaries will, incur debts or liabilities beyond the ability
of such Person and its Subsidiaries to pay as such debts and liabilities mature,
and (d) such Person and its Subsidiaries on a consolidated basis is not engaged
in business or a transaction, and such Person and its Subsidiaries on a
consolidated basis is not about to engage in business or a transaction, for
which the property of such Person and its Subsidiaries on a consolidated basis
would constitute an unreasonably small capital. The amount of Contingent
Liabilities at any time shall be computed as the amount that, in light of all
the facts and circumstances existing at such time, can reasonably be expected to
become an actual or matured liability.
"Stated Amount" of each Letter of Credit means the total amount available
to be drawn under such Letter of Credit upon the issuance thereof.
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"Stated Expiry Date" is defined in Section 2.6.
"Stated Maturity Date" means (a) in the case of any Revolving Loan or any
Term A Loan, February 15, 2004, (b) in the case of any Term B Loan, February 15,
2005 and (c) in the case of any Term C Loan, February 15, 2006.
"Subsidiary" means, with respect to any Person, any corporation,
partnership or other business entity of which more than 50% of the outstanding
Capital Stock (or other ownership interest) having ordinary voting power to
elect a majority of the board of directors, managers or other voting members of
the governing body of such entity (irrespective of whether at the time Capital
Stock (or other ownership interests) of any other class or classes of such
entity shall or might have voting power upon the occurrence of any contingency)
is at the time directly or indirectly owned by such Person, by such Person and
one or more other Subsidiaries of such Person, or by one or more other
Subsidiaries of such Person.
"Subsidiary Guarantor" means any Subsidiary of the Borrower that, pursuant
to Section 7.1.7, executes and delivers a Subsidiary Guaranty or a supplement to
a Subsidiary Guaranty.
"Subsidiary Guaranty" means the Guaranty executed and delivered by an
Authorized Officer of a Subsidiary Guarantor pursuant to Section 7.1.7,
substantially in the form of Exhibit H hereto, as amended, supplemented, amended
and restated or otherwise modified from time to time.
"Subsidiary Pledge Agreement" means the Pledge Agreement executed and
delivered by an Authorized Officer of each Subsidiary of the Borrower that is
not a Foreign Subsidiary pursuant to Section 7.1.7, substantially in the form of
Exhibit G-3 hereto, as amended, supplemented, amended and restated or otherwise
modified from time to time.
"Subsidiary Security Agreement" means the Security Agreement executed and
delivered by an Authorized Officer of each Subsidiary of the Borrower that is
not a Foreign Subsidiary pursuant to Section 7.1.7, substantially in the form of
Exhibit F-3 hereto, as amended, supplemented, amended and restated or otherwise
modified from time to time.
"Subject Property" is defined Section 7.1.8.
"Swing Line Lender" means Fleet, in its capacity as Swing Line Lender
hereunder.
"Swing Line Loan" is defined in clause (b) of Section 2.1.2.
"Swing Line Loan Commitment" is defined in clause (b) of Section 2.1.2.
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"Swing Line Loan Commitment Amount" means, on any date, $5,000,000, as
such amount may be reduced from time to time pursuant to Section 2.2.
"Swing Line Note" means a promissory note of the Borrower payable to the
Swing Line Lender, in the form of Exhibit A-8 hereto (as such promissory note
may be amended, endorsed or otherwise modified from time to time), evidencing
the aggregate Indebtedness of the Borrower to the Swing Line Lender resulting
from outstanding Swing Line Loans, and also means all other promissory notes
accepted from time to time in substitution therefor or renewal thereof.
"Syndication Agent" is defined in the preamble and includes each other
Person as shall have subsequently been appointed as the successor Syndication
Agent pursuant to Section 10.4.
"Taxes" is defined in Section 4.6.
"Telerate Page 3750" means the display designated as "Page 3750" on the
Telerate Service (or such other page as may replace Page 3750 on the service or
such other service as may be nominated by the British Bankers' Association as
the information vendor for the purpose of displaying British Bankers'
Association interest settlement rates for Dollar deposits).
"Term A Loans" means the Existing Term A Loans held by the Lenders under
the Existing Credit Agreement which have been designated as Term A Loans
hereunder pursuant to Section 2.3.3.
"Term A Note" means a promissory note of the Borrower payable to the order
of any Lender, in the form of Exhibit A-2 hereto (as such promissory note may be
amended, endorsed or otherwise modified from time to time in accordance with the
terms hereof and thereof), evidencing the aggregate Indebtedness of the Borrower
to such Lender resulting from outstanding Term A Loans, and also means all other
promissory notes accepted from time to time in substitution therefor or renewal
thereof.
"Term B Loans" means the Existing Term B Loans held by the Lenders under
the Existing Credit Agreement which have been designated as Term B Loans
hereunder pursuant to Section 2.3.3.
"Term B Note" means a promissory note of the Borrower payable to the order
of any Lender, in the form of Exhibit A-3 hereto (as such promissory note may be
amended, endorsed or otherwise modified from time to time in accordance with the
terms hereof and thereof), evidencing the aggregate Indebtedness of the Borrower
to such Lender resulting from outstanding Term B Loans, and also means all other
promissory notes accepted from time to time in substitution therefor or renewal
thereof.
"Term C Loans" means, as the context may require, an Existing Term C Loan,
and/or an
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Additional Term C Loan.
"Term Loan" means, as the context may require, a Term A Loan, a Term B
Loan and/or a Term C Loan.
"Term Note" means, as the context may require, a Term A Note, a Term B
Note, an August 1998 Term C Note, a September 1998 Term C Note and/or an
Additional Term C Note.
"Total Exposure Amount" means, on any date of determination, the then
outstanding principal amount of all Term Loans, the Revolving Loan Commitment
Amount then in effect and the Additional Term C Loan Commitment Amount then in
effect.
"Tranche" means, as the context may require, the Loans constituting Term A
Loans, Term B Loans, Term C Loans, Revolving Loans and/or Swing Line Loans.
"Transaction" is defined in the seventh recital.
"type" means, relative to any Loan, the portion thereof, if any, being
maintained as a Base Rate Loan or a LIBO Rate Loan.
"UCC" means the Uniform Commercial Code as in effect from time to time in
the State of New York.
"United States" or "U.S." means the United States of America, its fifty
states and the District of Columbia.
"Valuation Amount" means, with respect to any real property, the greater
of the fair market value or the purchase price of such real property.
"Waiver" means an agreement in favor of the Agents for the benefit of the
Lenders in form and substance reasonably satisfactory to the Agents.
"Welfare Plan" means a "welfare plan", as such term is defined in section
3(1) of ERISA, and to which the Borrower has any liability.
"Wholly-owned Subsidiary" shall mean, with respect to any Person, any
Subsidiary of such Person all of the Capital Stock (and all rights and options
to purchase such Capital Stock) of which, other than directors' qualifying
shares, are owned, beneficially and of record, by such Person and/or one or more
wholly-owned Subsidiaries of such Person.
SECTION 1.2. Use of Defined Terms. Unless otherwise defined or the context
otherwise requires, terms for which meanings are provided in this Agreement
shall have such
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meanings when used in the Disclosure Schedule and in each other Loan Document,
notice and other communication delivered from time to time in connection with
this Agreement or any other Loan Document.
SECTION 1.3. Cross-References. Unless otherwise specified, references in
this Agreement and in each other Loan Document to any Article or Section are
references to such Article or Section of this Agreement or such other Loan
Document, as the case may be, and, unless otherwise specified, references in any
Article, Section or definition to any clause are references to such clause of
such Article, Section or definition.
SECTION 1.4. Accounting and Financial Determinations. (a) Unless otherwise
specified, all accounting terms used herein or in any other Loan Document shall
be interpreted, all accounting determinations and computations hereunder or
thereunder (including under Section 7.2.4) shall be made, and all financial
statements required to be delivered hereunder or thereunder shall be prepared in
accordance, and in a manner consistent, with those generally accepted accounting
principles ("GAAP"), as in effect on December 28, 1996 and as used to prepare
the audited consolidated financial statements of Holdings and its Subsidiaries
for the Fiscal Year ending on such date and, unless otherwise expressly provided
herein, shall be computed or determined on a consolidated basis and without
duplication.
(b) For purposes of calculating each of the Fixed Charge Coverage Ratio,
the Interest Coverage Ratio and the Leverage Ratio, each such ratio shall be
calculated giving pro forma effect to any acquisition, disposition, merger,
consolidation or discontinued operation (including any related financing
transaction) made by the Borrower or any of its Subsidiaries during the period
comprised of the Fiscal Quarters that are the subject of such calculation as if
such acquisition, disposition, merger, consolidation or discontinued operation
(including such related financing transaction) had been made at the beginning of
such period. Not in limitation of the immediately preceding sentence but in
furtherance thereof, for purposes of such calculation, EBITDA for such period
shall be calculated to (i) include the EBITDA (adjusted to exclude the cost of
any compensation, remuneration or other benefit paid or provided to any
employee, consultant, Affiliate or equity owner of the acquired entities to the
extent such costs are eliminated and not replaced and as determined in good
faith by the chief financial or accounting Authorized Officer of Holdings)
attributable to any business or assets acquired by the Borrower or any of its
Subsidiaries utilizing the actual revenues attributable to such business or
assets for such and the expenses that would have been attributable to such
business or assets had the Borrower acquired such business or assets at the
beginning of such period and (ii) exclude the EBITDA attributable to
discontinued operations, as determined in accordance with GAAP, and operations,
businesses and assets disposed of prior to the end of such period from such
calculation, in each case, as determined in good faith by the chief financial or
accounting Authorized Officer of Holdings.
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ARTICLE II
COMMITMENTS, BORROWING AND ISSUANCE PROCEDURES,
NOTES AND LETTERS OF CREDIT
SECTION 2.1. Commitments. On the terms and subject to the conditions of
this Agreement (including Sections 2.1.4 and 2.1.5) and the Amendment Agreement
(including Article III thereof),
(a) each Lender severally agrees to make Loans (other than Swing
Line Loans) pursuant to the Commitments and the Swing Line Lender agrees
to make Swing Line Loans pursuant to the Swing Line Loan Commitment, in
each case as described in this Section 2.1; and
(b) the Issuer agrees that it will issue Letters of Credit pursuant
to Section 2.1.3, and each other Lender that has a Revolving Loan
Commitment severally agrees that it will purchase participation interests
in such Letters of Credit pursuant to Section 2.6.1.
SECTION 2.1.1. Additional Term C Loan Commitments. Subject to compliance
by the Borrower with the terms hereof (including Section 2.1.4, and 5.2) and the
terms of the Amendment Agreement (including Article III thereof), on (but solely
on) the Amendment Effective Date each Lender that has a Percentage in excess of
zero of the Additional Term C Loan Commitment Amount will make loans (relative
to such Lender, its "Additional Term C Loans") to the Borrower equal to such
Lender's Percentage of the aggregate amount of the Borrowing or Borrowings of
Additional Term C Loans requested by the Borrower to be made on the Amendment
Effective Date (the commitment of each such Lender described in this Section
2.1.1 is herein referred to as its "Additional Term C Loan Commitment"). No
amounts paid or prepaid with respect to any Additional Term C Loans may be
reborrowed.
SECTION 2.1.2. Revolving Loan Commitment and Swing Line Loan Commitment.
Subject to compliance by the Borrower with the terms hereof (including Section
2.1.4 and 5.2) and the Amendment Agreement (including Article III thereof), from
time to time on any Business Day prior to the Revolving Loan Commitment
Termination Date,
(a) each Lender that has a Percentage in excess of zero of the
Revolving Loan Commitment Amount will make loans (relative to such Lender,
its "Revolving Loans") to the Borrower equal to such Lender's Percentage
of the aggregate amount of the Borrowing or Borrowings of Revolving Loans
requested by the Borrower to be made on such day. The Commitment of each
Lender described in this clause (a) is herein referred to as its
"Revolving Loan Commitment". On the terms and subject to the conditions
hereof, the Borrower may from time to time borrow, prepay and reborrow
Revolving Loans.
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(b) the Swing Line Lender will make loans (each a "Swing Line Loan")
to the Borrower equal to the principal amount of the Swing Line Loan
requested by the Borrower to be made on such day. The Commitment of the
Swing Line Lender described in this clause (b) is herein referred to as
its "Swing Line Loan Commitment". On the terms and subject to the
conditions hereof, the Borrower may from time to time borrow, prepay and
reborrow Swing Line Loans.
SECTION 2.1.3. Letter of Credit Commitment. Subject to compliance by the
Borrower with the terms hereof (including Section 2.1.4 and 5.2) and the
Amendment Agreement (including Article III thereof), from time to time on any
Business Day prior to the Revolving Loan Commitment Termination Date, the Issuer
will (a) issue one or more standby or commercial letters of credit (each
referred to as a "Letter of Credit") for the account of the Borrower in the
Stated Amount requested by the Borrower on such day, or (b) extend the Stated
Expiry Date of an existing standby or commercial Letter of Credit previously
issued hereunder.
SECTION 2.1.4. Lenders Not Permitted or Required to Make the Loans. No
Lender shall be permitted or required to, and the Borrower shall not request any
Lender to, make
(a) any Additional Term C Loan if, after giving effect thereto, the
aggregate original principal amount of all the Additional Term C Loans (i)
of all Lenders would exceed the Additional Term C Loan Commitment Amount,
or (ii) of such Lender would exceed such Lender's Percentage of the
Additional Term C Loan Commitment Amount; or
(b) any Revolving Loan if, after giving effect thereto, the
aggregate outstanding principal amount of all the Revolving Loans (i) of
all Lenders, together with all Letter of Credit Outstandings and the
aggregate outstanding principal amount of all Swing Line Loans, would
exceed the Revolving Loan Commitment Amount, or (ii) of such Lender (other
than the Swing Line Lender), together with its Percentage of all Letter of
Credit Outstandings, would exceed such Lender's Percentage of the
Revolving Loan Commitment Amount; or
(c) any Swing Line Loan if, after giving effect thereto, the
aggregate outstanding principal amount of all Swing Line Loans (i) would
exceed the Swing Line Loan Commitment Amount, or (ii) together with all
Letter of Credit Outstandings and the aggregate outstanding principal
amount of all Revolving Loans, would exceed the Revolving Loan Commitment
Amount.
SECTION 2.1.5. Issuer Not Permitted or Required to Issue Letters of
Credit. No Issuer shall be permitted or required to issue any Letter of Credit
if, after giving effect thereto, (a) the aggregate amount of all Letter of
Credit
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Outstandings would exceed the Letter of Credit Commitment Amount or (b) the sum
of the aggregate amount of all Letter of Credit Outstandings plus the aggregate
principal amount of all Revolving Loans and all Swing Line Loans then
outstanding would exceed the Revolving Loan Commitment Amount.
SECTION 2.2. Reduction of the Commitment Amounts. The Commitment Amounts
are subject to reductions from time to time pursuant to this Section 2.2.
SECTION 2.2.1. Optional. The Borrower may, from time to time on any
Business Day occurring after the time of the initial Credit Extension hereunder,
voluntarily reduce the Revolving Loan Commitment Amount; provided, however, that
all such reductions shall require at least three Business Days' prior notice to
the Administrative Agent and be permanent, and any partial reduction of any
Commitment Amount shall be in an aggregate amount of $5,000,000 or any larger
integral multiple of $1,000,000. Any such reduction of the Revolving Loan
Commitment Amount which reduces the Revolving Loan Commitment Amount below the
Letter of Credit Commitment Amount or the Swing Line Loan Commitment Amount
shall result in an automatic and corresponding reduction of the Letter of Credit
Commitment Amount or the Swing Line Loan Commitment Amount, as the case may be,
to an aggregate amount not in excess of the Revolving Loan Commitment Amount, as
so reduced, without any further action on the part of the Issuer or the Swing
Line Lender.
SECTION 2.2.2. Mandatory. The Revolving Loan Commitment Amount shall,
without any further action, automatically and permanently be reduced
(a) on the Revolving Loan Commitment Termination Date so that the
Revolving Loan Commitment Amount equals $0; and
(b) following the prepayment in full of the Term Loans, on the date
the Term Loans would otherwise have been required to be prepaid pursuant
to clause (b), (c), (d), (e) or (f) of Section 3.1.1, in an amount equal
to the amount by which the Term Loans would otherwise have been required
to be prepaid if any Term Loans had been outstanding. Any such reduction
of the Revolving Loan Commitment Amount which reduces the Revolving Loan
Commitment Amount below the Letter of Credit Commitment Amount or the
Swing Line Loan Commitment Amount shall result in an automatic and
corresponding permanent reduction of the Letter of Credit Commitment
Amount or the Swing Line Loan Commitment Amount, as the case may be, to an
aggregate amount not in excess of the Revolving Loan Commitment Amount, as
so reduced, without any further action on the part of the Issuer or the
Swing Line Lender.
SECTION 2.3. Borrowing Procedures and Funding Maintenance. Loans (other
than Swing Line Loans) shall be made by the Lenders in accordance with Section
2.3.1, and Swing Line Loans shall be made by the Swing Line Lender in accordance
with Section 2.3.2.
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SECTION 2.3.1. Additional Term C Loans and Revolving Loans. By delivering
a Borrowing Request to the Administrative Agent on or before 12:00 noon, New
York City time, on a Business Day, the Borrower may from time to time
irrevocably request, on not less than one Business Day's notice (in the case of
Base Rate Loans) or three Business Days' notice (in the case of LIBO Rate Loans)
nor more than five Business Days' notice (in the case of any Loans), that a
Borrowing be made, in the case of LIBO Rate Loans, in an aggregate amount of
$1,000,000 or any larger integral multiple of $500,000, and in the case of Base
Rate Loans, in an aggregate amount of $500,000 or any larger integral multiple
of $100,000, or, in either case, in the unused amount of the applicable
Commitment. No Borrowing Request shall be required, and the minimum aggregate
amounts specified under this Section 2.3.1 shall not apply, in the case of
Revolving Loans made under clause (b) of Section 2.3.2 to refund Refunded Swing
Line Loans or deemed made under Section 2.6.2 in respect of unreimbursed
Disbursements. On the terms and subject to the conditions of this Agreement,
each Borrowing shall be comprised of the type of Loans, and shall be made on the
Business Day, specified in such Borrowing Request. On or before 11:00 a.m., New
York City time, on such Business Day each Lender shall deposit with the
Administrative Agent same day funds in an amount equal to such Lender's
Percentage of the requested Borrowing. Such deposit will be made to an account
which the Administrative Agent shall specify from time to time by notice to the
Lenders. To the extent funds are received from the Lenders, the Administrative
Agent shall make such funds available to the Borrower by wire transfer to the
accounts the Borrower shall have specified in its Borrowing Request. No Lender's
obligation to make any Loan shall be affected by any other Lender's failure to
make any Loan.
SECTION 2.3.2. Swing Line Loans. (a) By telephonic notice, promptly
followed (within one Business Day) by the delivery of a confirming Borrowing
Request, to the Swing Line Lender and the Administrative Agent on or before
12:00 noon, New York City time, on the Business Day the proposed Swing Line Loan
is to be made, the Borrower may from time to time irrevocably request that a
Swing Line Loan be made by the Swing Line Lender in a minimum principal amount
of $100,000 or any larger integral multiple of $50,000. All Swing Line Loans
shall be made as Base Rate Loans and shall not be entitled to be converted into
LIBO Rate Loans. The proceeds of each Swing Line Loan shall be made available by
the Swing Line Lender, by 5:00 p.m., New York City time, on the Business Day
telephonic notice is received by it as provided in this clause (a), to the
Borrower by wire transfer to the account the Borrower shall have specified in
its notice therefor.
(b) If (i) any Swing Line Loan (A) shall be outstanding for more than four
Business Days or (B) is or will be outstanding on a date when the Borrower
requests that a Revolving Loan be made or (ii) any Default (other than a Default
of the nature set forth in Section 8.1.9) shall occur and be continuing, each
Lender with a Revolving Loan Commitment (other than the Swing Line Lender)
irrevocably agrees that it will, at the request of the Swing Line Lender and
upon notice from the Administrative Agent, make a Revolving Loan (which shall
initially be funded as a Base Rate Loan) in an amount equal to such Lender's
Percentage of the aggregate principal amount of all such Swing Line Loans then
outstanding (such outstanding Swing Line Loans
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hereinafter referred to as the "Refunded Swing Line Loans"); provided, that the
Swing Line Lender shall not request, and no Lender with a Revolving Loan
Commitment shall make, any Refunded Swing Line Loan if, after giving effect to
the making of such Refunded Swing Line Loan, the sum of all Swing Line Loans and
Revolving Loans made by such Lender, plus such Lender's Percentage of the
aggregate amount of all Letter of Credit Outstandings, would exceed such
Lender's Percentage of the then existing Revolving Loan Commitment Amount. On or
before 11:00 a.m. (New York City time) on the first Business Day following
receipt by each Lender of a request to make Revolving Loans as provided in the
preceding sentence, each such Lender with a Revolving Loan Commitment shall
deposit in an account specified by the Swing Line Lender the amount so requested
in same day funds and such funds shall be applied by the Swing Line Lender to
repay the Refunded Swing Line Loans. At the time the aforementioned Lenders make
the above referenced Revolving Loans, the Swing Line Lender shall be deemed to
have made, in consideration of the making of the Refunded Swing Line Loans, a
Revolving Loan in an amount equal to the Swing Line Lender's Percentage of the
aggregate principal amount of the Refunded Swing Line Loans. Upon the making (or
deemed making, in the case of the Swing Line Lender) of any Revolving Loans
pursuant to this clause (b), the amount so funded shall become outstanding under
such Lender's Revolving Note and shall no longer be owed under the Swing Line
Note. All interest payable with respect to any Revolving Loans made (or deemed
made, in the case of the Swing Line Lender) pursuant to this clause (b) shall be
appropriately adjusted to reflect the period of time during which the Swing Line
Lender had outstanding Swing Line Loans in respect of which such Revolving Loans
were made.
(c) If, at any time prior to the making of Revolving Loans to replace any
outstanding Swing Line Loans pursuant to clause (b) above, any Default of the
nature of the nature set forth in Section 8.1.9 shall have occurred, each Lender
with a Revolving Loan Commitment (other than the Swing Line Lender) irrevocably
agrees that it will, at the request of the Swing Line Lender and upon notice
from the Administrative Agent, purchase an undivided participation interest in
all such Swing Line Loans in an amount equal to its Percentage of the aggregate
outstanding amount of such Swing Line Loans and transfer immediately to an
account identified by the Swing Line Lender, in immediately available funds, the
amount of its participation. The Swing Line Lender will deliver to each such
Lender, promptly following receipt of such funds, a participation certificate,
dated the date of receipt of such funds and in the amount of such Lender's
participation if requested to do so by such Lender.
(d) The Borrower expressly agrees that, in respect of each Lender's funded
participation interest in any Swing Line Loan, such Lender shall be deemed to be
in privity of contract with the Borrower and have the same rights and remedies
against the Borrower under the Loan Documents as if such funded participation
interest in such Swing Line Loan were a Revolving Loan.
(e) Each Lender's obligation (in the case of Lenders with a Revolving Loan
Commitment) to make Revolving Loans or purchase participation interests in Swing
Line Loans,
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as contemplated by clause (b) or (c) above, shall be absolute and unconditional
and without recourse to the Swing Line Lender and shall not be affected by any
circumstance, including (i) any set-off, counterclaim, recoupment, defense or
other right which such Revolving Lender may have against the Swing Line Lender,
the Borrower or any other Person for any reason whatsoever; (ii) the occurrence
or continuance of a Default, an Event of Default or a Material Adverse Effect;
(iii) the acceleration or maturity of any Loans or the termination of any
Commitment after the making of any Swing Line Loan; (iv) any breach of this
Agreement or any other Loan Document by the Borrower, any other Obligor or any
Lender; or (v) any other circumstance, happening or event whatsoever, whether or
not similar to any of the foregoing.
SECTION 2.3.3. Existing Term A Loans, Existing Term B Loans, August 1998
Term C Loans and September 1998 Term C Loans. As of the Amendment Effective
Date, the Existing Term A Loans, the Existing Term B Loans, the August 1998 Term
C Loans originally made under the February 1998 Credit Agreement and continued
under the Existing Credit Agreement and the September 1998 Term C Loans
originally made under the Existing Credit Agreement shall continue to remain
outstanding hereunder as Term A Loans, Term B Loans, August 1998 Term C Loans
and September 1998 Term C Loans respectively, in each case, as if made hereunder
on the Amendment Effective Date.
SECTION 2.4. Continuation and Conversion Elections. By delivering a
Continuation/Conversion Notice to the Administrative Agent on or before 12:00
noon, New York City time, on a Business Day, the Borrower may from time to time
irrevocably elect, on not less than one Business Day's notice (in the case of a
conversion of LIBO Rate Loans to Base Rate Loans) or three Business Days' notice
(in the case of a continuation of LIBO Rate Loans or a conversion of Base Rate
Loans into LIBO Rate Loans) nor more than five Business Days' notice (in the
case of any Loans) that all, or any portion (a) in a minimum amount of
$1,000,000 or any larger integral multiple of $500,000, be, in the case of Base
Rate Loans, converted into LIBO Rate Loans or, in the case of LIBO Rate Loans,
continued as LIBO Rate Loans or (b) in a minimum amount of $500,000 or any
larger integral multiple of $100,000, be, in the case of LIBO Rate Loans,
converted into Base Rate Loans (in the absence of delivery of a
Continuation/Conversion Notice with respect to any LIBO Rate Loan at least three
Business Days before the last day of the then current Interest Period with
respect thereto, such LIBO Rate Loan shall, on such last day, automatically
convert to a Base Rate Loan); provided, however, that (x) each such conversion
or continuation shall be pro rated among the applicable outstanding Loans of the
relevant Lenders, and (y) no portion of the outstanding principal amount of any
Loans may be continued as, or be converted into, LIBO Rate Loans when any
Default or Event of Default has occurred and is continuing.
SECTION 2.5. Funding. Each Lender may, if it so elects, fulfill its
obligation to make, continue or convert LIBO Rate Loans hereunder by causing one
of its foreign branches or Affiliates (or an international banking facility
created by such Lender) to make or maintain such LIBO Rate Loan, so long as such
action does not result in increased costs to the Borrower;
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provided, however, that such LIBO Rate Loan shall nonetheless be deemed to have
been made and to be held by such Lender, and the obligation of the Borrower to
repay such LIBO Rate Loan shall nevertheless be to such Lender for the account
of such foreign branch, Affiliate or international banking facility; provided
further, however, that, except for purposes of determining whether any such
increased costs are payable by the Borrower, such Lender shall cause such
foreign branch, Affiliate or international banking facility to comply with the
applicable provisions of clause (b) of Section 4.6 with respect to such LIBO
Rate Loan. In addition, the Borrower hereby consents and agrees that, for
purposes of any determination to be made for purposes of Section 4.1, 4.2, 4.3
or 4.4, it shall be conclusively assumed that each Lender elected to fund all
LIBO Rate Loans by purchasing Dollar deposits in its LIBOR Office's interbank
Eurodollar market.
SECTION 2.6. Issuance Procedures. By delivering to the Administrative
Agent an Issuance Request on or before 12:00 noon, New York City time, on a
Business Day, the Borrower may, from time to time irrevocably request, on not
less than three nor more than ten Business Days' notice (or such shorter or
longer notice as may be acceptable to the Issuer), in the case of an initial
issuance of a Letter of Credit, and not less than three nor more than ten
Business Days' notice (unless a shorter or longer notice period is acceptable to
the Issuer) prior to the then existing Stated Expiry Date of a Letter of Credit,
in the case of a request for the extension of the Stated Expiry Date of a Letter
of Credit, that the Issuer issue, or extend the Stated Expiry Date of, as the
case may be, an irrevocable Letter of Credit on behalf of the Borrower (whether
the account party on such Letter of Credit is the Borrower or a Subsidiary of
the Borrower) in such form as may be requested by the Borrower and approved by
the Issuer, for the purposes described in Section 7.1.9; provided, however, that
no extension of the Stated Expiry Date of an outstanding Letter of Credit may
provide for a Stated Expiry Date subsequent to the earlier of (i) the Revolving
Loan Commitment Termination Date and (ii) one year from the date of such
extension. Notwithstanding anything to the contrary contained herein or in any
separate application for any Letter of Credit, the Borrower hereby acknowledges
and agrees that it shall be obligated to reimburse the Issuer upon each
Disbursement paid under a Letter of Credit, and it shall be deemed to be the
obligor for purposes of each such Letter of Credit issued hereunder (whether the
account party on such Letter of Credit is the Borrower or a Subsidiary of the
Borrower). Upon receipt of an Issuance Request, the Administrative Agent shall
promptly notify the Issuer and each Lender thereof. Each Letter of Credit shall
by its terms be stated to expire on a date (its "Stated Expiry Date") no later
than the earlier to occur of (i) the Revolving Loan Commitment Termination Date
or (ii) one year from the date of its issuance. The Issuer will make available
to the beneficiary thereof the original of each Letter of Credit which it issues
hereunder.
SECTION 2.6.1. Other Lenders' Participation. Upon the issuance of each
Letter of Credit issued by the Issuer pursuant hereto, and without further
action, each Lender (other than the Issuer) that has a Revolving Loan Commitment
shall be deemed to have irrevocably purchased from the Issuer, to the extent of
its Percentage in respect of Revolving Loans, and the
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Issuer shall be deemed to have irrevocably granted and sold to such Lender a
participation interest in such Letter of Credit (including the Contingent
Liability and any Reimbursement Obligation and all rights with respect thereto),
and such Lender shall, to the extent of its Percentage in respect of Revolving
Loans, be responsible for reimbursing promptly (and in any event within one
Business Day) the Issuer for Reimbursement Obligations which have not been
reimbursed by the Borrower in accordance with Section 2.6.3. In addition, such
Lender shall, to the extent of its Percentage in respect of Revolving Loans, be
entitled to receive a ratable portion of the Letter of Credit fees payable
pursuant to Section 3.3.3 with respect to each Letter of Credit and of interest
payable pursuant to Section 3.2 with respect to any Reimbursement Obligation. To
the extent that any Lender has reimbursed the Issuer for a Disbursement as
required by this Section, such Lender shall be entitled to receive its ratable
portion of any amounts subsequently received (from the Borrower or otherwise) in
respect of such Disbursement.
SECTION 2.6.2. Disbursements; Conversion to Revolving Loans. The Issuer
will notify the Borrower and the Administrative Agent promptly of the
presentment for payment of any drawing under any Letter of Credit issued by the
Issuer, together with notice of the date (the "Disbursement Date") such payment
shall be made (each such payment, a "Disbursement"). Subject to the terms and
provisions of such Letter of Credit and this Agreement, the Issuer shall make
such payment to the beneficiary (or its designee) of such Letter of Credit.
Prior to 12:00 noon, New York City time, on the first Business Day following the
Disbursement Date (the "Disbursement Due Date"), the Borrower will reimburse the
Administrative Agent, for the account of the Issuer, for all amounts which the
Issuer has disbursed under such Letter of Credit, together with interest thereon
at the rate per annum otherwise applicable to Revolving Loans (made as Base Rate
Loans) from and including the Disbursement Date to but excluding the
Disbursement Due Date and, thereafter (unless such Disbursement is converted
into a Revolving Loan made as a Base Rate Loan on the Disbursement Due Date), at
a rate per annum equal to the rate per annum then in effect with respect to
overdue Revolving Loans (made as Base Rate Loans) pursuant to Section 3.2.2 for
the period from the Disbursement Due Date through the date of such
reimbursement; provided, however, that, if no Default shall have then occurred
and be continuing, unless the Borrower has notified the Administrative Agent no
later than one Business Day prior to the Disbursement Due Date that it will
reimburse the Issuer for the applicable Disbursement, then the amount of the
Disbursement shall be deemed to be a Borrowing of Revolving Loans constituting
Base Rate Loans and following the giving of notice thereof by the Administrative
Agent to the Lenders, each Lender with a Revolving Loan Commitment (other than
the Issuer) will deliver to the Issuer on the Disbursement Due Date immediately
available funds in an amount equal to such Lender's Percentage of such
Borrowing. Each conversion of Disbursement amounts into Revolving Loans shall
constitute a representation and warranty by the Borrower that on the date of the
making of such Revolving Loans all of the statements set forth in Section 5.2.1
are true and correct.
SECTION 2.6.3. Reimbursement. The obligation (a "Reimbursement
Obligation") of the Borrower under Section 2.6.2 to reimburse the Issuer with
respect to each Disbursement
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(including interest thereon) not converted into a Revolving Loan made as a Base
Rate Loan pursuant to Section 2.6.2, and, upon the failure of the Borrower to
reimburse the Issuer and the giving of notice thereof by the Administrative
Agent to the Lenders, each Lender's (to the extent it has a Revolving Loan
Commitment) obligation under Section 2.6.1 to reimburse the Issuer or fund its
Percentage of any Disbursement converted into a Revolving Loan made as a Base
Rate Loan, shall be absolute and unconditional under any and all circumstances
and irrespective of any setoff, counterclaim or defense to payment which the
Borrower or such Lender, as the case may be, may have or have had against the
Issuer or any such Lender, including any defense based upon the failure of any
Disbursement to conform to the terms of the applicable Letter of Credit (if, in
the Issuer's good faith opinion, such Disbursement is determined to be
appropriate) or any non-application or misapplication by the beneficiary of the
proceeds of such Letter of Credit; provided, however, that after paying in full
its Reimbursement Obligation hereunder, nothing herein shall adversely affect
the right of the Borrower or such Lender, as the case may be, to commence any
proceeding against the Issuer for any wrongful Disbursement made by the Issuer
under a Letter of Credit as a result of acts or omissions constituting gross
negligence or willful misconduct on the part of the Issuer.
SECTION 2.6.4. Deemed Disbursements. Upon the occurrence and during the
continuation of any Event of Default of the type described in clauses (a)
through (d) of Section 8.1.9 or, with notice from the Administrative Agent
acting at the direction of the Required Lenders, upon the occurrence and during
the continuation of any other Event of Default,
(a) an amount equal to that portion of all Letter of Credit
Outstandings attributable to the then aggregate amount which is undrawn
and available under all Letters of Credit issued and outstanding shall,
without demand upon or notice to the Borrower or any other Person, be
deemed to have been paid or disbursed by the Issuer under such Letters of
Credit (notwithstanding that such amount may not in fact have been so paid
or disbursed); and
(b) upon notification by the Administrative Agent to the Borrower of
its obligations under this Section, the Borrower shall be immediately
obligated to reimburse the Issuer for the amount deemed to have been so
paid or disbursed by the Issuer.
Any amounts so payable by the Borrower pursuant to this Section shall be
deposited in cash with the Administrative Agent and held as collateral security
for the Obligations in connection with the Letters of Credit issued by the
Issuer. At such time as the Events of Default giving rise to the deemed
disbursements hereunder shall have been cured or waived, the Administrative
Agent shall return to the Borrower all amounts then on deposit with the
Administrative Agent pursuant to this Section, together with accrued interest at
the Federal Funds Rate, which have not been applied to the satisfaction of such
Obligations.
SECTION 2.6.5. Nature of Reimbursement Obligations. The Borrower and, to
the
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extent set forth in Section 2.6.1, each Lender with a Revolving Loan Commitment,
shall assume all risks of the acts, omissions or misuse of any Letter of Credit
by the beneficiary thereof. The Issuer (except to the extent of its own gross
negligence or willful misconduct) shall not be responsible for (i) the form,
validity, sufficiency, accuracy, genuineness or legal effect of any Letter of
Credit or any document submitted by any party in connection with the application
for and issuance of a Letter of Credit, even if it should in fact prove to be in
any or all respects invalid, insufficient, inaccurate, fraudulent or forged,
(ii) the form, validity, sufficiency, accuracy, genuineness or legal effect of
any instrument transferring or assigning or purporting to transfer or assign a
Letter of Credit or the rights or benefits thereunder or the proceeds thereof in
whole or in part, which may prove to be invalid or ineffective for any reason,
(iii) failure of the beneficiary to comply fully with conditions required in
order to demand payment under a Letter of Credit, (iv) errors, omissions,
interruptions or delays in transmission or delivery of any messages, by mail,
cable, telegraph, telex or otherwise, or (v) any loss or delay in the
transmission or otherwise of any document or draft required in order to make a
Disbursement under a Letter of Credit. None of the foregoing shall affect,
impair or prevent the vesting of any of the rights or powers granted to the
Issuer or any Lender with a Revolving Loan Commitment hereunder. In furtherance
and extension and not in limitation or derogation of any of the foregoing, any
action taken or omitted to be taken by the Issuer in good faith (and not
constituting gross negligence or willful misconduct) shall be binding upon the
Borrower, each Obligor and each such Lender, and shall not put the Issuer under
any resulting liability to the Borrower, any Obligor or any such Lender, as the
case may be.
SECTION 2.6.6. Indemnity. In addition to amounts payable as elsewhere
provided herein, the Borrower hereby agrees to protect, indemnify, pay and save
the Issuer harmless from and against any and all claims, demands, liabilities,
damages, losses, costs, charges and expenses (including reasonable attorneys'
fees and allocated costs of internal counsel) which the Issuer may incur or be
subject to as a consequence, direct or indirect, of (a) the issuance of the
Letters of Credit, other than as a result of the gross negligence or wilful
misconduct of the Issuer as determined by a court of competent jurisdiction, or
(b) the failure of the Issuer to honor a drawing under any Letter of Credit as a
result of any act or omission, whether rightful or wrongful, of any present or
future de jure or de facto government or governmental authority.
SECTION 2.6.7. Borrower's Guaranty of Reimbursement Obligations under
Letters of Credit Issued for the Account of its Subsidiaries. The Borrower
agrees as follows in respect of the reimbursement obligations under Letters of
Credit issued for the account of its Subsidiaries:
(a) The Borrower hereby absolutely, unconditionally and irrevocably
(i) guarantees the full and punctual payment when due, whether at
stated maturity, by required prepayment, declaration, acceleration, demand
or otherwise, of all such reimbursement obligations now or hereafter
existing, of each of its Subsidiaries (the "Account Parties") that is an
account party to a Letter of Credit which arise out of, or are
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incurred in connection with, such Letters of Credit, whether for
principal, interest, fees, expenses or otherwise (including all such
amounts which would become due but for the operation of the automatic stay
under Section 362(a) of the United States Bankruptcy Code, 11 U.S.C.
ss.362(a), and the operation of Sections 502(b) and 506(b) of the United
States Bankruptcy Code, 11 U.S.C. ss.502(b) and ss.506(b)), and
(ii) indemnifies and holds harmless each Secured Party and each
holder of a Note for any and all costs and expenses (including reasonable
attorney's fees and expenses) incurred by such Secured Party or such
holder, as the case may be, in enforcing any rights under the guaranty set
forth in this Section 2.6.7.
The guaranty set forth in this Section 2.6.7 constitutes a guaranty of payment
when due and not of collection, and the Borrower specifically agrees that it
shall not be necessary or required that any Secured Party or any holder of any
Note exercise any right, assert any claim or demand or enforce any remedy
whatsoever against any Account Party or any other Obligor (or any other Person)
before or as a condition to the obligations of the Borrower under the guaranty
set forth in this Section 2.6.7 (such obligations hereinafter referred to as the
"Guaranteed Obligations").
(b) The Borrower agrees that upon the occurrence of an Event of Default of
the nature set forth in clauses (a) through (d) of Section 8.1.9, at a time when
any of the Guaranteed Obligations of any Account Party may not then be due and
payable, then the Borrower agrees that it will pay to the Administrative Agent
for the account of the Secured Parties forthwith the full amount which would be
payable under the guaranty set forth in this Section 2.6.7 by the Borrower if
all such Guaranteed Obligations were then due and payable.
(c) The guaranty set forth in this Section 2.6.7 shall in all respects be
a continuing, absolute, unconditional and irrevocable guaranty of payment, and
shall remain in full force and effect until all Guaranteed Obligations of the
Account Parties have been paid in full in cash, all Obligations of the Borrower
and each other Obligor hereunder have been paid in full in cash, all Letters of
Credit have been terminated or expired, all Rate Protection Agreements have been
terminated or expired and all Commitments shall have terminated. The Borrower
guarantees that the Guaranteed Obligations of the Account Parties will be paid
strictly in accordance with the terms of this Agreement and each other Loan
Document under which they arise, regardless of any law, regulation or order now
or hereafter in effect in any jurisdiction affecting any of such terms or the
rights of any Secured Party or any holder of any Note with respect thereto. The
liability of the Borrower under the guaranty set forth in this Section 2.6.7
shall be absolute, unconditional and irrevocable irrespective of:
(i) any lack of validity, legality or enforceability of this
Agreement, any Note or any other Loan Document;
(ii) the failure of any Secured Party or any holder of any Note
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(A) to assert any claim or demand or to enforce any right or
remedy against any Account Party, any other Obligor or any other
Person (including any other guarantor (including the Borrower))
under the provisions of this Agreement, any Note, any other Loan
Document or otherwise, or
(B) to exercise any right or remedy against any other
guarantor (including the Borrower) of, or collateral securing, any
Guaranteed Obligations of any Account Party;
(iii) any change in the time, manner or place of payment of, or in
any other term of, all or any of the Guaranteed Obligations of any Account
Party, or any other extension, compromise or renewal of any Guaranteed
Obligation of any Account Party;
(iv) any reduction, limitation, impairment or termination of any
Guaranteed Obligations of any Account Party for any reason, including any
claim of waiver, release, surrender, alteration or compromise, and shall
not be subject to (and the Borrower hereby waives any right to or claim
of) any defense or setoff, counterclaim, recoupment or termination
whatsoever by reason of the invalidity, illegality, nongenuineness,
irregularity, compromise, unenforceability of, or any other event or
occurrence affecting, any Guaranteed Obligations of any Account Party or
otherwise;
(v) any amendment to, rescission, waiver, or other modification of,
or any consent to departure from, any of the terms of this Agreement, any
Note or any other Loan Document;
(vi) any addition, exchange, release, surrender or non-perfection of
any collateral, or any amendment to or waiver or release or addition of,
or consent to departure from, any other guaranty, held by any Secured
Party or any holder of any Note securing any of the Guaranteed Obligations
of any Account Party; or
(vii) any other circumstance which might otherwise constitute a
defense available to, or a legal or equitable discharge of, any Account
Party any surety or any guarantor.
(d) The Borrower agrees that the guaranty set forth in this Section 2.6.7
shall continue to be effective or be reinstated, as the case may be, if at any
time any payment (in whole or in part) of any of the Guaranteed Obligations is
rescinded or must otherwise be restored by any Secured Party or any holder of
any Note, upon the insolvency, bankruptcy or reorganization of any Account Party
or otherwise, all as though such payment had not been made.
(e) The Borrower hereby waives promptness, diligence, notice of acceptance
and any other notice with respect to any of the Guaranteed Obligations of any
Account Party or any other Obligor and the guaranty set forth in this Section
2.6.7 and any requirement that the
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Administrative Agent, any other Secured Party or any holder of any Note protect,
secure, perfect or insure any security interest or Lien, or any property subject
thereto, or exhaust any right or take any action against any Account Party, any
other Obligor or any other Person (including any other guarantor) or entity or
any collateral securing the Guaranteed Obligations of any Account Party.
(f) The Borrower agrees that it will not exercise any rights which it may
acquire by way of rights of subrogation under the guaranty set forth in this
Section 2.6.7, by any payment made under the guaranty set forth in this Section
2.6.7 or otherwise, until the prior payment in full in cash of all Guaranteed
Obligations of each Account Party, the prior payment in full in cash of all
Obligations of the Borrower, the termination or expiration of all Letters of
Credit, the termination or expiration of all Rate Protection Agreements and the
termination of all Commitments. Any amount paid to the Borrower on account of
any such subrogation rights prior to the payment in full in cash of all
Guaranteed Obligations of each Account Party shall be held in trust for the
benefit of the Secured Parties and each holder of a Note and shall immediately
be paid to the Administrative Agent for the benefit of the Secured Parties and
each holder of a Note and credited and applied against the Guaranteed
Obligations of each Account Party, whether matured or unmatured, in accordance
with the terms of this Agreement; provided, however, that if
(i) the Borrower has made payment to the Secured Parties and each
holder of a Note of all or any part of the Guaranteed Obligations of any
Account Party, and
(ii) all Guaranteed Obligations of each Account Party have been paid
in full in cash, all Obligations of the Borrower have been paid in full in
cash, all Letters of Credit have been terminated or expired and all
Commitments have been permanently terminated,
each Secured Party and each holder of a Note agrees that, at the Borrower's
request, the Administrative Agent, on behalf of the Secured Parties and the
holders of the Notes, will execute and deliver to the Borrower appropriate
documents (without recourse and without representation or warranty) necessary to
evidence the transfer by subrogation to the Borrower of an interest in the
Guaranteed Obligations of each Account Party resulting from such payment by the
Borrower. In furtherance of the foregoing, for so long as any Obligations
(including Guaranteed Obligations) or Commitments remain outstanding, the
Borrower shall refrain from taking any action or commencing any proceeding
against any Account Party(or its successors or assigns, whether in connection
with a bankruptcy proceeding or otherwise) to recover any amounts in the respect
of payments made under the guaranty set forth in this Section 2.6.7 to any
Secured Party or any holder of a Note.
(g) The guaranty set forth in this Section 2.6.7 shall:
(i) be binding upon the Borrower, and its successors, transferees
and assigns; and
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(ii) inure to the benefit of and be enforceable by the
Administrative Agent and each other Secured Party.
Without limiting the generality of the foregoing clause (b), any Lender may
assign or otherwise transfer (in whole or in part) any Note or Credit Extension
held by it to any other Person or entity, and such other Person or entity shall
thereupon become vested with all rights and benefits in respect thereof granted
to such Lender under any Loan Document (including the guaranty set forth in this
Section 2.6.7) or otherwise, subject, however, to any contrary provisions in
such assignment or transfer, and to the provisions of Section 11.11 and Article
X.
SECTION 2.6.8. Continued Letters of Credit. Notwithstanding anything to
the contrary herein, the Letters of Credit (as defined in the February 1998
Credit Agreement and the Existing Credit Agreement) shall be deemed to be
Letters of Credit issued hereunder by the Issuer on the Amendment Effective
Date.
SECTION 2.7. Register; Notes.
(a) Each Lender may maintain in accordance with its usual practice
an account or accounts evidencing the Indebtedness of the Borrower to such
Lender resulting from each Loan made by such Lender, including the amounts
of principal and interest payable and paid to such Lender from time to
time hereunder. In the case of a Lender that does not request, pursuant to
clause (b)(ii) below, execution and delivery of a Note evidencing the
Loans made by such Lender to the Borrower, such account or accounts shall,
to the extent not inconsistent with the notations made by the
Administrative Agent in the Register, be conclusive and binding on the
Borrower absent manifest error; provided, however, that the failure of any
Lender to maintain such account or accounts shall not limit or otherwise
affect any Obligations of the Borrower or any other Obligor.
(b)(i) The Borrower hereby designates the Administrative Agent to
serve as the Borrower's agent, solely for the purpose of this clause (b),
to maintain a register (the "Register") on which the Administrative Agent
will record each Lender's Commitment, the Loans made by each Lender and
each repayment in respect of the principal amount of the Loans of each
Lender and annexed to which the Administrative Agent shall retain a copy
of each Lender Assignment Agreement delivered to the Administrative Agent
pursuant to Section 11.11.1. Failure to make any recordation, or any error
in such recordation, shall not affect the Borrower's obligation in respect
of such Loans. The entries in the Register shall be conclusive, in the
absence of manifest error, and the Borrower, the Administrative Agent and
the Lenders shall treat each Person in whose name a Loan (and as provided
in clause (ii) the Note evidencing such Loan, if any) is registered as the
owner thereof for all purposes of this Agreement, notwithstanding notice
or any provision herein to the contrary. A Lender's Commitment and the
Loans made
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pursuant thereto may be assigned or otherwise transferred in whole or in
part only by registration of such assignment or transfer in the Register.
Any assignment or transfer of a Lender's Commitment or the Loans made
pursuant thereto shall be registered in the Register only upon delivery to
the Administrative Agent of a Lender Assignment Agreement duly executed by
the assignor thereof and the compliance by the parties thereto with the
other requirements of Section 11.11.1. No assignment or transfer of a
Lender's Commitment or the Loans made pursuant thereto shall be effective
unless such assignment or transfer shall have been recorded in the
Register by the Administrative Agent as provided in this Section.
(ii) The Borrower agrees that, upon the request to the
Administrative Agent by any Lender, the Borrower will execute and deliver
to such Lender, as applicable, a Revolving Note, a Term Note (or
Registered Note) and/or a Swing Line Note evidencing the Loans made by
such Lender. The Borrower hereby irrevocably authorizes each Lender to
make (or cause to be made) appropriate notations on the grid attached to
such Lender's Notes (or on any continuation of such grid), which
notations, if made, shall evidence, inter alia, the date of, the
outstanding principal amount of, and the interest rate and Interest Period
applicable to the Loans evidenced thereby. Such notations shall, to the
extent not inconsistent with the notations made by the Administrative
Agent in the Register, be conclusive and binding on the Borrower absent
manifest error; provided, however, that the failure of any Lender to make
any such notations shall not limit or otherwise affect any Obligations of
the Borrower or any other Obligor. The Loans evidenced by any Registered
Note and interest thereon shall at all times (including after assignment
pursuant to Section 11.11.1) be payable to the order of the payee named
therein and its registered assigns. A Registered Note and the obligation
evidenced thereby may be assigned or otherwise transferred in whole or in
part only by registration of such assignment or transfer of such
Registered Note and the obligation evidenced thereby in the Register (and
each Registered Note shall expressly so provide). Any assignment or
transfer of all or part of an obligation evidenced by a Registered Note
shall be registered in the Register only upon surrender for registration
of assignment or transfer of the Registered Note evidencing such
obligation, accompanied by a Lender Assignment Agreement duly executed by
the assignor thereof and the compliance by the parties thereto with the
other requirements of Section 11.11.1, and thereupon, if requested by the
assignee, one or more new Notes shall be issued to the designated assignee
and the old Registered Note shall be returned by the Administrative Agent
to the Borrower marked "exchanged". No assignment of a Registered Note and
the obligation evidenced thereby shall be effective unless it shall have
been recorded in the Register by the Administrative Agent as provided in
this Section.
ARTICLE III
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REPAYMENTS, PREPAYMENTS, INTEREST AND FEES
SECTION 3.1. Repayments and Prepayments; Application.
SECTION 3.1.1. Repayments and Prepayments. The Borrower shall repay in
full the unpaid principal amount of each Loan upon the Stated Maturity Date
therefor. Prior thereto, the Borrower
(a) may, from time to time on any Business Day, make a voluntary
prepayment, in whole or in part, of the outstanding principal amount of
any
(i) Loans (other than Swing Line Loans); provided, however,
that
(A) any such prepayment of the Term Loans shall be made
pro rata among the Term Loans of the same type and, if
applicable, having the same Interest Period of all Lenders
that have made such Term Loans, and any such prepayment of
Revolving Loans shall be made pro rata among the Revolving
Loans of the same type and, if applicable, having the same
Interest Period of all Lenders that have made such Revolving
Loans;
(B) the Borrower shall comply with Section 4.4 in the
event that any LIBO Rate Loan is prepaid on any day other than
the last day of the Interest Period for such Loan;
(C) all such voluntary prepayments shall require at
least one Business Day's notice in the case of Base Rate
Loans, three Business Days' notice in the case of LIBO Rate
Loans, but no more than five Business Days' notice in the case
of any Loans, in each case in writing to the Administrative
Agent; and
(D) all such voluntary partial prepayments shall be, in
the case of LIBO Rate Loans, in an aggregate amount of
$1,000,000 or any larger integral multiple of $500,000, and,
in the case of Base Rate Loans, in an aggregate amount of
$500,000 or any larger integral multiple of $100,000, or, in
either case, in the aggregate principal amount of all Loans of
the applicable Tranche and type then outstanding; or
(ii) Swing Line Loans; provided, however, that
(A) all such voluntary prepayments shall require prior
telephonic notice to the Swing Line Lender on or before 12:00
noon, New York City time, on the day of such prepayment (such
notice to be confirmed in
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writing by the Borrower within 24 hours thereafter); and
(B) all such voluntary partial prepayments shall be in
an aggregate amount of $100,000 and an integral multiple of
$50,000 or in the aggregate principal amount of all Swing Line
Loans then outstanding;
(b) shall, no later than five Business Days following the delivery
by the Borrower of its annual audited financial reports required pursuant
to clause (c) of Section 7.1.1 (beginning with the financial reports
delivered in respect of the 1998 Fiscal Year), deliver to the
Administrative Agent a calculation of the Excess Cash Flow for the Fiscal
Year last ended and, no later than five Business Days following the
delivery of such calculation, make a mandatory prepayment of the Term
Loans in an amount equal to 75% of the Excess Cash Flow (if any) for such
Fiscal Year, to be applied as set forth in Section 3.1.2;
(c) shall, not later than one Business Day following the receipt of
any Net Debt Proceeds by the Borrower, any Parent Guarantor or any of
their respective Subsidiaries, deliver to the Administrative Agent a
calculation of the amount of such Net Debt Proceeds and make a mandatory
prepayment of the Term Loans in an amount equal to 100% of such Net Debt
Proceeds to be applied as set forth in Section 3.1.2;
(d) shall, concurrently with the receipt of any Net Equity Proceeds
by the Borrower, any Parent Guarantor or any of their respective
Subsidiaries, deliver to the Administrative Agent a calculation of the
amount of such Net Equity Proceeds, and no later than five Business Days
following the delivery of such calculation, make a mandatory prepayment of
the Term Loans in an amount equal to 50% of such Net Equity Proceeds to be
applied as set forth in Section 3.1.2;
(e) shall, following the receipt by the Borrower, any Parent
Guarantor or any of their respective Subsidiaries of any Casualty Proceeds
in excess of $500,000 (individually or in the aggregate (when taken
together with Net Disposition Proceeds) over the course of a Fiscal Year),
deliver to the Administrative Agent a calculation of the amount of such
Casualty Proceeds and make a mandatory prepayment of the Term Loans in an
amount equal to 100% of such Casualty Proceeds within 60 days of the
receipt thereof to be applied as set forth in Section 3.1.2; provided,
however, that no mandatory prepayment on account of Casualty Proceeds
shall be required under this clause if the Borrower informs the Agents in
writing no later than 60 days following the occurrence of the Casualty
Event resulting in such Casualty Proceeds of its, such Parent Guarantor's
or such Subsidiary's good faith intention to apply such Casualty Proceeds
to the rebuilding or replacement of the damaged, destroyed or condemned
assets or property and the Borrower, such Parent Guarantor or such
Subsidiary in fact uses such Casualty Proceeds to rebuild or replace such
assets or property within 365 days following the receipt of such Casualty
Proceeds, with the amount of such Casualty Proceeds unused after such
365-day period being applied to the Term Loans pursuant to Section 3.1.2;
provided, further,
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however, that (i) at any time when any Default or Event of Default shall
have occurred and be continuing, all Casualty Proceeds (together with Net
Disposition Proceeds not applied as provided in clause (f) below) shall be
deposited in an account maintained with the Administrative Agent to pay
for such rebuilding or replacement whenever no Default or Event of Default
is then continuing or except as otherwise agreed to by the Agents for
disbursement at the request of the Borrower, such Parent Guarantor or such
Subsidiary, as the case may be, or (ii) if all such Casualty Proceeds
(together with Net Disposition Proceeds not applied as provided in clause
(f) below) aggregating in excess of $1,000,000 have not yet been applied
as described in the notice required above (or in accordance with clause
(f) below), all such Casualty Proceeds and Net Disposition Proceeds shall
be deposited in an account maintained with the Administrative Agent for
disbursement at the request of the Borrower, such Parent Guarantor or such
Subsidiary, as the case may be, to be used for the purpose(s) set forth in
such written notice(s);
(f) shall, following the receipt by the Borrower, any Parent
Guarantor or any of their respective Subsidiaries of any Net Disposition
Proceeds in excess of $500,000 (individually or in the aggregate (when
taken together with Casualty Proceeds) over the course of a Fiscal Year),
deliver to the Administrative Agent a calculation of the amount of such
Net Disposition Proceeds and make a mandatory prepayment of the Term Loans
in an amount equal to 100% of such Net Disposition Proceeds within one
Business Day of the receipt thereof to be applied as set forth in Section
3.1.2; provided, however, that no mandatory prepayment on account of Net
Disposition Proceeds shall be required under this clause if the Borrower
informs the Agents in writing no later than one Business Day following the
receipt of such Net Disposition Proceeds of its, such Parent Guarantor's
or such Subsidiary's good faith intention to apply such Net Disposition
Proceeds to the replacement of the sold, conveyed or transferred assets or
property and the Borrower, such Parent Guarantor or such Subsidiary in
fact uses such Net Disposition Proceeds to replace such assets or property
within 365 days following the receipt of such Net Disposition Proceeds,
with the amount of such Net Disposition Proceeds unused after such 365-day
period being applied to the Term Loans pursuant to Section 3.1.2;
provided, further, however, that (i) at any time when any Default or Event
of Default shall have occurred and be continuing, all Net Disposition
Proceeds (together with Casualty Proceeds not applied as provided in
clause (e) above) shall be deposited in an account maintained with the
Administrative Agent to pay for such replacement whenever no Default or
Event of Default is then continuing or except as otherwise agreed to by
the Agents for disbursement at the request of the Borrower, such Parent
Guarantor or such Subsidiary, as the case may be, or (ii) if all such Net
Disposition Proceeds (together with Casualty Proceeds not applied as
provided in clause (e) above) aggregating in excess of $1,000,000 have not
yet been applied as described in the notice required above (or in
accordance with clause (e) above), all such Net Disposition Proceeds and
Casualty Proceeds shall be deposited in an account maintained with the
Administrative Agent for disbursement at the request of the Borrower, such
Parent Guarantor or such Subsidiary, as
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the case may be, to be used for the purpose(s) set forth in such written
notice(s);
(g) shall, on each date when any reduction in the Revolving Loan
Commitment Amount shall become effective, make a mandatory prepayment of
Revolving Loans and Swing Line Loans and (if necessary) deposit with the
Administrative Agent cash collateral for Letter of Credit Outstandings in
an aggregate amount equal to the excess, if any, of the sum of (i) the
aggregate outstanding principal amount of all Revolving Loans and Swing
Line Loans and (ii) the aggregate amount of all Letter of Credit
Outstandings over the Revolving Loan Commitment Amount as so reduced;
(h) shall on each Quarterly Payment Date occurring during any period
set forth below, make a scheduled repayment of the outstanding principal
amount, if any, of Term A Loans in an amount equal to the amount set forth
below opposite such period (in each case as such amounts may have
otherwise been reduced pursuant to this Agreement):
Scheduled
Period Principal Repayment
------ -------------------
May 15, 1999 through
November 15, 1999 $1,000,000
February 15, 2000 through
November 15, 2000 $2,000,000
February 15, 2001 through
November 15, 2002 $2,500,000
February 15, 2003 through
November 15, 2003 $3,000,000
February 15, 2004 $5,250,000;
(i) shall on each Quarterly Payment Date occurring during any period
set forth below, make a scheduled repayment of the outstanding principal
amount, if any, of Term B Loans in an amount equal to the amount set forth
below opposite period (in each case as such amounts may have otherwise
been reduced pursuant to this Agreement):
Scheduled
Period Principal Repayment
------ -------------------
May 15, 1999 through
February 15, 2004 $200,000
May 15, 2004 through
February 15, 2005 $18,800,000;
(j) shall on each Quarterly Payment Date occurring during any period
set forth below, make a scheduled repayment of the outstanding principal
amount, if any, of
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August 1998 Term C Loans in an amount equal to the amount set forth below
opposite such period (in each case as such amounts may have otherwise been
reduced pursuant to this Agreement):
Scheduled
Period Principal Repayment
------ -------------------
May 15, 1999 through
February 15, 2005 $25,000
May 15, 2005 through
February 15, 2006 $2,337,500;
(k) shall on each Quarterly Payment Date occurring during any period
set forth below, make a scheduled repayment of the outstanding principal
amount, if any, of September 1998 Term C Loans in an amount equal to the
amount set forth below opposite such period (in each case as such amounts
may have otherwise been reduced pursuant to this Agreement):
Scheduled
Period Principal Repayment
------ -------------------
May 15, 1999 through
February 15, 2005 $175,000
May 15, 2005 through
February 15, 2006 $16,362,500;
(l) shall on each Quarterly Payment Date occurring during any period
set forth below, make a scheduled repayment of the outstanding principal
amount, if any, of Additional Term C Loans in an amount equal to the
amount set forth below opposite such period (in each case as such amounts
may have otherwise been reduced pursuant to this Agreement):
Scheduled
Period Principal Repayment
------ -------------------
May 15, 1999 through
February 15, 2005 $62,500
May 15, 2005 through
February 15, 2006 $5,875,000;
(m) shall, immediately upon the occurrence of the Stated Maturity
Date of any Loans or Obligations, whether by way of acceleration pursuant
to Section 8.2 or 8.3 or otherwise, repay all outstanding Loans and other
Obligations, unless, pursuant to Section 8.3, only a portion of all Loans
and other Obligations are so accelerated (in which case the portion so
accelerated shall be so prepaid).
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Each prepayment of any Loans made pursuant to this Section shall be
without premium or penalty, except as may be required by Section 4.4. No
prepayment of principal of any Revolving Loans or Swing Line Loans pursuant to
clause (a) of this Section 3.1.1 shall cause a reduction in the Revolving Loan
Commitment Amount or the Swing Line Loan Commitment Amount, as the case may be.
SECTION 3.1.2. Application. (a) Subject to clause (b) below, each
prepayment or repayment of principal of the Loans of any Tranche shall be
applied, to the extent of such prepayment or repayment, first, to the principal
amount thereof being maintained as Base Rate Loans, and second, to the principal
amount thereof being maintained as LIBO Rate Loans.
(b) Each prepayment of Term Loans made pursuant to clauses (a), (b), (c),
(d), (e) and (f) of Section 3.1.1 shall be applied, on a pro rata basis, to the
outstanding principal amount of all remaining Term Loans and the remaining
scheduled quarterly amortization payments in respect thereof, until all such
Term Loans have been paid in full; provided, however, that in the case of any
such prepayment of Term B Loans or Term C Loans made pursuant to clause (b),
(c), (d), (e) and (f) of Section 3.1.1, any Lender that has Term B Loans or Term
C Loans may elect not to have such Loans prepaid by delivering a notice to the
Administrative Agent at least one Business Day prior to the date that such
prepayment is to be made in which notice such Lender shall decline to have such
Loans prepaid with the amounts set forth above, in which case the amounts that
would have been applied to a prepayment of such Lender's Term B Loans or Term C
Loans shall instead be applied to a prepayment of the principal amount (if any)
of all outstanding Term A Loans until all outstanding Term A Loans have been
prepaid in full, then applied to a prepayment of the principal amount (if any)
of all outstanding Swing Line Loans until all outstanding Swing Line Loans have
been prepaid in full and then applied to a prepayment of the principal amount
(if any) of all outstanding Revolving Loans until all outstanding Revolving
Loans have been prepaid in full, with the balance (if any) being returned by the
Administrative Agent to the Borrower. No prepayment of principal of any
Revolving Loans or Swing Line Loans pursuant to the proviso of the immediately
preceding sentence shall cause a reduction in the Revolving Loan Commitment
Amount or the Swing Line Loan Commitment Amount, as the case may be.
SECTION 3.2. Interest Provisions. Interest on the outstanding principal
amount of the Loans shall accrue and be payable in accordance with this Section
3.2.
SECTION 3.2.1. Rates. Each Base Rate Loan shall accrue interest on the
unpaid principal amount thereof for each day from and including the day upon
which such Loan was made or converted to a Base Rate Loan to but excluding the
date such Loan is repaid or converted to a LIBO Rate Loan at a rate per annum
equal to the sum of the Alternate Base Rate for such day plus the Applicable
Margin for such Loan on such day. Each LIBO Rate Loan shall accrue interest on
the unpaid principal amount thereof for each day from and including the first
day of the Interest Period applicable thereto to but excluding the date such
Loan is repaid or
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converted to a Base Rate Loan at a rate per annum equal to the sum of the LIBO
Rate (Reserve Adjusted) for such Interest Period plus the Applicable Margin for
such Loan on such day.
SECTION 3.2.2. Post-Maturity Rates. After the date any principal amount of
any Loan shall have become due and payable (whether on the applicable Stated
Maturity Date, upon acceleration or otherwise), or any other monetary Obligation
(other than overdue Reimbursement Obligations which shall bear interest as
provided in Section 2.6.2) of the Borrower shall have become due and payable,
the Borrower shall pay, but only to the extent permitted by law, interest (after
as well as before judgment) on such amounts at a rate per annum equal to (a) in
the case of any overdue principal of Loans, overdue interest thereon, overdue
commitment fees or other overdue amounts in respect of Loans or other
obligations (or the related Commitments) under a particular Tranche, the rate
that would otherwise be applicable to Base Rate Loans under such Tranche
pursuant to Section 3.2.1 plus 2% and (b) in the case of other overdue monetary
Obligations, the rate that would otherwise be applicable to Revolving Loans made
as Base Rate Loans plus 2%.
SECTION 3.2.3. Payment Dates. Interest accrued on each Loan shall be
payable, without duplication:
(a) on the Stated Maturity Date therefor;
(b) on the date of any payment or prepayment, in whole or in part,
of principal outstanding on such Loan, to the extent of the unpaid
interest accrued through such date on the principal so paid or prepaid;
(c) with respect to Base Rate Loans, on each Quarterly Payment Date
occurring after the Amendment Effective Date hereunder;
(d) with respect to LIBO Rate Loans, on the last day of the
applicable Interest Period (and, if such Interest Period shall exceed
three months, at intervals of three months after the first day of such
Interest Period);
(e) with respect to the principal amount of any Base Rate Loans
converted into LIBO Rate Loans on a day when interest would not otherwise
have been payable pursuant to clause (c), on the date of such conversion;
and
(f) on that portion of any Loans the Stated Maturity Date of which
is accelerated pursuant to Section 8.2 or 8.3, immediately upon such
acceleration.
Interest accrued on Loans, Reimbursement Obligations or other monetary
Obligations arising under this Agreement or any other Loan Document after the
date such amount is due and payable (whether on the Stated Maturity Date, upon
acceleration or otherwise) shall be payable upon demand.
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SECTION 3.3. Fees. The Borrower agrees to pay the fees set forth in this
Section 3.3. All such fees shall be non-refundable.
SECTION 3.3.1. Commitment Fee. The Borrower agrees to pay to the
Administrative Agent for the account of each Lender that has a Revolving Loan
Commitment, for each day during the period (including any portion thereof when
any of the Lenders' Revolving Loan Commitments are suspended by reason of the
Borrower's inability to satisfy any condition of Article V) commencing on the
Amendment Effective Date and continuing to but excluding the Revolving Loan
Commitment Termination Date, a commitment fee on such Lender's Percentage of the
unused portion of the Revolving Loan Commitment Amount, whether or not then
available, for such day at a rate per annum equal to the Applicable Commitment
Fee for such day. Such commitment fees shall be payable by the Borrower in
arrears on each Quarterly Payment Date, commencing with the first such day
following the Amendment Effective Date, and on the Revolving Loan Commitment
Termination Date. The making of Swing Line Loans by the Swing Line Lender shall
not constitute usage under the Revolving Loan Commitment for the purpose of
calculating the commitment fees to be paid by the Borrower to the Lenders (other
than the Swing Line Lender) pursuant to this Section 3.3.1.
SECTION 3.3.2. Syndication Agent's, Administrative Agent's and Arranger's
Fees. The Borrower agrees to pay to each of the Syndication Agent, the
Administrative Agent and the Arranger for each such Person's own account, the
fees set forth in the Fee Letter and the Administrative Agent's Fee Letter in
accordance with their respective terms.
SECTION 3.3.3. Letter of Credit Fee. The Borrower agrees to pay to
(a) the Administrative Agent, for the pro rata account of the Issuer
and each other Lender that has a Revolving Loan Commitment, a Letter of
Credit fee for each day on which there shall be any Letters of Credit
outstanding in an amount equal to the product of (i) a rate per annum
equal to the then Applicable Margin for Revolving Loans maintained as LIBO
Rate Loans multiplied by (ii) the Stated Amount of each such Letter of
Credit; and
(b) the Issuer (i) a Letter of Credit fronting fee for each day on
which there shall be any Letters of Credit outstanding in an amount equal
to 0.25% per annum on the Stated Amount of each such Letter of Credit, and
(ii) from time to time promptly after demand, the normal issuance,
presentation, amendment and other processing fees, and other standard
administrative costs and charges of the Issuer relating to Letters of
Credit as from time to time in effect.
Fees payable pursuant to this Section shall be payable quarterly in arrears on
each Quarterly Payment Date and on the Revolving Loan Commitment Termination
Date.
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ARTICLE IV
CERTAIN LIBO RATE AND OTHER PROVISIONS
SECTION 4.1. LIBO Rate Lending Unlawful. If any Lender shall determine
(which determination shall, upon notice thereof to the Borrower and the Lenders,
be conclusive and binding on the Borrower) that the introduction of or any
change in or in the interpretation of any law makes it unlawful, or any central
bank or other governmental authority asserts that it is unlawful, for such
Lender to make, continue or maintain any Loan as, or to convert any Loan into, a
LIBO Rate Loan, the obligations of such Lender to make, continue, maintain or
convert any Loans as or to LIBO Rate Loans shall, upon such determination,
forthwith be suspended until such Lender shall notify the Administrative Agent
that the circumstances causing such suspension no longer exist (with the date of
such notice being the "Reinstatement Date"), and (a) all LIBO Rate Loans
previously made by such Lender shall automatically convert into Base Rate Loans
at the end of the then current Interest Periods with respect thereto or sooner,
if required by such law or assertion and (b) all Loans thereafter made by such
Lender and outstanding prior to the Reinstatement Date shall be made as Base
Rate Loans, with interest thereon being payable on the same date that interest
is payable with respect to the corresponding Borrowing of LIBO Rate Loans made
by Lenders not so affected.
SECTION 4.2. Deposits Unavailable. If the Administrative Agent shall have
determined that (a) Dollar deposits in the relevant amount and for the relevant
Interest Period are not available to the Administrative Agent in its relevant
market, or (b) by reason of circumstances affecting the Administrative Agent's
relevant market, adequate means do not exist for ascertaining the interest rate
applicable hereunder to LIBO Rate Loans, then, upon notice from the
Administrative Agent to the Borrower and the Lenders, the obligations of all
Lenders under Sections 2.3 and 2.4 to make or continue any Loans as, or to
convert any Loans into, LIBO Rate Loans shall forthwith be suspended until the
Administrative Agent shall notify the Borrower and the Lenders that the
circumstances causing such suspension no longer exist.
SECTION 4.3. Increased LIBO Rate Loan Costs, etc. The Borrower agrees to
reimburse each Lender for any increase in the cost to such Lender of, or any
reduction in the amount of any sum receivable by such Lender in respect of,
making, continuing or maintaining (or of its obligation to make, continue or
maintain) any Loans as, or of converting (or of its obligation to convert) any
Loans into, LIBO Rate Loans. Such Lender shall promptly notify the
Administrative Agent and the Borrower in writing of the occurrence of any such
event, such notice to state, in reasonable detail, the reasons therefor and the
additional amount required fully to compensate such Lender for such increased
cost or reduced amount. Such additional amounts shall be payable by the Borrower
directly to such Lender within five days of its receipt of such notice, and such
notice shall, in the absence of manifest error, be conclusive and binding on the
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Borrower.
SECTION 4.4. Funding Losses. In the event any Lender shall incur any loss
or expense (including any loss or expense incurred by reason of the liquidation
or reemployment of deposits or other funds acquired by such Lender to make,
continue or maintain any portion of the principal amount of any Loan as, or to
convert any portion of the principal amount of any Loan into, a LIBO Rate Loan)
as a result of (i) any conversion or repayment or prepayment of the principal
amount of any LIBO Rate Loans on a date other than the scheduled last day of the
Interest Period applicable thereto, whether pursuant to Section 3.1 or
otherwise, (ii) any Loans not being made as LIBO Rate Loans in accordance with
the Borrowing Request therefor, or (iii) any Loans not being continued as, or
converted into, LIBO Rate Loans in accordance with the Continuation/Conversion
Notice therefor, then, upon the written notice of such Lender to the Borrower
(with a copy to the Administrative Agent), the Borrower shall, within five days
of its receipt thereof, pay directly to such Lender such amount as will (in the
reasonable determination of such Lender) reimburse such Lender for such loss or
expense. Such written notice (which shall include calculations in reasonable
detail) shall, in the absence of manifest error, be conclusive and binding on
the Borrower.
SECTION 4.5. Increased Capital Costs. If any change in, or the
introduction, adoption, effectiveness, interpretation, reinterpretation or
phase-in of, any law or regulation, directive, guideline, decision or request
(whether or not having the force of law) of any court, central bank, regulator
or other governmental authority affects or would affect the amount of capital
required or expected to be maintained by any Lender, the Issuer or any Person
controlling such Lender or the Issuer, and such Lender or the Issuer determines
(in its sole and reasonable discretion) that the rate of return on its or such
controlling Person's capital as a consequence of its Commitments, participation
in, or the issuance or extension of, any Letter of Credit or any Loan made by
such Lender or the Issuer is reduced to a level below that which such Lender,
the Issuer or such controlling Person could have achieved but for the occurrence
of any such circumstance, then, in any such case upon notice from time to time
by such Lender or the Issuer to the Borrower, the Borrower shall immediately pay
directly to such Lender or the Issuer additional amounts sufficient to
compensate such Lender, the Issuer or such controlling Person for such reduction
in rate of return. A statement of such Lender or the Issuer as to any such
additional amount or amounts (including calculations thereof in reasonable
detail) shall, in the absence of manifest error, be conclusive and binding on
the Borrower. In determining such amount, such Lender or the Issuer may use any
method of averaging and attribution that it (in its sole and absolute
discretion) shall deem applicable.
SECTION 4.6. Taxes. (a) All payments by the Borrower of principal of, and
interest on, the Loans and all other amounts payable hereunder (including
Reimbursement Obligations, fees and expenses) shall be made free and clear of
and without deduction for any present or future income, excise, stamp or
franchise taxes
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and other taxes, fees, duties, withholdings or other charges of any nature
whatsoever imposed by any taxing authority, but excluding franchise taxes and
other taxes imposed on or measured by any Agent's, the Documentation Agent's,
the Issuer's or any Lender's net income or receipts (such non-excluded items
being called "Taxes"). In the event that any withholding or deduction from any
payment to be made by the Borrower hereunder is required in respect of any Taxes
pursuant to any applicable law, rule or regulation, then the Borrower will (i)
pay directly to the relevant taxing authority the full amount required to be so
withheld or deducted, (ii) promptly forward to the Administrative Agent an
official receipt or other documentation satisfactory to the Administrative Agent
evidencing such payment to such authority, and (iii) pay to the Administrative
Agent for the account of such Agent, the Documentation Agent, the Issuer or such
Lender such additional amount or amounts as is necessary to ensure that the net
amount actually received by such Agent, the Documentation Agent, the Issuer or
such Lender will equal the full amount such Agent, the Documentation Agent, the
Issuer or such Lender would have received had no such withholding or deduction
been required.
Moreover, if any Taxes are directly asserted against any Agent, the
Documentation Agent, the Issuer or any Lender with respect to any payment
received by such Agent, the Documentation Agent, the Issuer or such Lender
hereunder, such Agent, the Documentation Agent, the Issuer or such Lender may
pay such Taxes and the Borrower will promptly pay to such Person such additional
amounts (including any penalties, interest or expenses) as is necessary in order
that the net amount received by such Person after the payment of such taxes
(including any Taxes on such additional amount) shall equal the amount such
Person would have received had such Taxes not been asserted.
If the Borrower fails to pay any Taxes when due to the appropriate taxing
authority or fails to remit to the Administrative Agent, for the account of the
respective Lenders, the required receipts or other required documentary
evidence, the Borrower shall indemnify the Lenders for any incremental Taxes,
interest or penalties that may become payable by any Lender as a result of any
such failure. For purposes of this Section 4.6, a distribution hereunder by the
Administrative Agent or any Lender to or for the account of any Lender shall be
deemed a payment by the Borrower.
(b) Upon the request of the Borrower or the Administrative Agent, each
Lender that is organized under the laws of a jurisdiction other than the United
States shall, on or prior to the due date of any payments under this Agreement
to such Lender, provide two or more (as the Borrower or the Administrative Agent
may reasonably request) United States Internal Revenue Service Forms 4224 or
Forms 1001 or, solely if such Lender is claiming exemption from United States
withholding tax under Section 871(h) or 881(c) of the Code with respect to
payments of "portfolio interest", United States Internal Revenue Service Forms
W-8 and a certificate signed by a duly authorized officer of such Lender
representing that such Lender is not a "bank" within the meaning of Section
881(c)(3)(A) of the Code, or such other forms or documents (or successor forms
or documents), appropriately completed, as may be applicable to establish the
extent, if any, to which a payment to such Lender are exempt from withholding or
deduction of Taxes.
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SECTION 4.7. Payments, Computations, etc. Unless otherwise expressly
provided, all payments by or on behalf of the Borrower pursuant to this
Agreement, the Notes or any other Loan Document shall be made by the Borrower to
the Administrative Agent for the pro rata account of the Lenders, the
Documentation Agent, the Agents or the Arranger, as applicable, entitled to
receive such payment. All such payments required to be made to the
Administrative Agent shall be made, without setoff, deduction or counterclaim,
not later than 11:00 a.m., New York City time, on the date due, in same day or
immediately available funds, to such account as the Administrative Agent shall
specify from time to time by notice to the Borrower. Funds received after that
time shall be deemed to have been received by the Administrative Agent on the
next succeeding Business Day. The Administrative Agent shall promptly remit in
same day funds to each Lender, the Documentation Agent, each Agent or the
Arranger, as the case may be, its share, if any, of such payments received by
the Administrative Agent for the account of such Lender, the Documentation
Agent, such Agent or the Arranger, as the case may be. All interest and fees
shall be computed on the basis of the actual number of days (including the first
day but excluding the last day) occurring during the period for which such
interest or fee is payable over a year comprised of 360 days (or, in the case of
interest on a Base Rate Loan that is not calculated at the Federal Funds Rate,
365 days or, if appropriate, 366 days). Whenever any payment to be made shall
otherwise be due on a day which is not a Business Day, such payment shall
(except as otherwise required by clause (a) of the definition of the term
"Interest Period") be made on the next succeeding Business Day and such
extension of time shall be included in computing interest and fees, if any, in
connection with such payment.
SECTION 4.8. Sharing of Payments. If any Lender shall obtain any payment
or other recovery (whether voluntary, involuntary, by application of setoff or
otherwise) on account of any Loan or Reimbursement Obligations (other than
pursuant to the terms of Sections 4.3, 4.4 and 4.5) in excess of its pro rata
share of payments then or therewith obtained by all Lenders entitled thereto,
such Lender shall purchase from the other Lenders such participations in the
Credit Extensions made by them as shall be necessary to cause such purchasing
Lender to share the excess payment or other recovery ratably with each of them;
provided, however, that if all or any portion of the excess payment or other
recovery is thereafter recovered from such purchasing Lender, the purchase shall
be rescinded and each Lender which has sold a participation to the purchasing
Lender shall repay to the purchasing Lender the purchase price to the ratable
extent of such recovery together with an amount equal to such selling Lender's
ratable share (according to the proportion of (i) the amount of such selling
Lender's required repayment to the purchasing Lender in respect of such
recovery, to (ii) the total amount so recovered from the purchasing Lender) of
any interest or other amount paid or payable by the purchasing Lender in respect
of the total amount so recovered. The Borrower agrees that any Lender so
purchasing a participation from another Lender pursuant to this Section may, to
the fullest extent permitted by law, exercise all its rights of payment
(including pursuant to Section 4.9) with respect to such participation as fully
as if such Lender were the direct creditor of the Borrower in the amount of such
participation. If under any applicable bankruptcy, insolvency or other similar
law, any
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Lender receives a secured claim in lieu of a setoff to which this Section
applies, such Lender shall, to the extent practicable, exercise its rights in
respect of such secured claim in a manner consistent with the rights of the
Lenders entitled under this Section to share in the benefits of any recovery on
such secured claim.
SECTION 4.9. Setoff. Each Lender shall, upon the occurrence of any Event
of Default described in clauses (a) through (d) of Section 8.1.9 or, with the
consent of the Required Lenders, upon the occurrence of any other Event of
Default, to the fullest extent permitted by law, have the right to appropriate
and apply to the payment of the Obligations then owing to it (whether or not
then due), and (as security for such Obligations) the Borrower hereby grants to
each Lender a continuing security interest in, any and all balances, credits,
deposits, accounts or moneys of the Borrower then or thereafter maintained with
or otherwise held by such Lender; provided, however, that any such appropriation
and application shall be subject to the provisions of Section 4.8. Each Lender
agrees promptly to notify the Borrower and the Administrative Agent after any
such setoff and application made by such Lender; provided, however, that the
failure to give such notice shall not affect the validity of such setoff and
application. The rights of each Lender under this Section are in addition to
other rights and remedies (including other rights of setoff under applicable law
or otherwise) which such Lender may have.
SECTION 4.10. Replacement of Lenders. Each Lender hereby severally agrees
as set forth in this Section. If any Lender (an "Affected Lender") makes demand
upon the Borrower for (or if the Borrower is otherwise required to pay) amounts
pursuant to Section 4.3, 4.5 or 4.6 and the payment of such additional amounts
are, and are likely to continue to be, more onerous in the reasonable judgment
of the Borrower than with respect to the other Lenders, the Borrower may, within
30 days of receipt by the Borrower of such demand or notice (or the occurrence
of such other event causing the Borrower to be required to pay such
compensation), as the case may be, give notice (a "Replacement Notice") in
writing to the Agents and such Affected Lender of its intention to replace such
Affected Lender with a financial institution (a "Replacement Lender") designated
in such Replacement Notice. If the Agents shall, in the exercise of their
reasonable discretion and within 30 days of their receipt of such Replacement
Notice, notify the Borrower and such Affected Lender in writing that the
designated financial institution is satisfactory to the Agents (such consent not
being required where the Replacement Lender is already a Lender), then such
Affected Lender shall, subject to the payment of any amounts due pursuant to
Section 4.4, assign, in accordance with Section 11.11.1, all of its Commitments,
Loans, Notes and other rights and obligations under this Agreement and all other
Loan Documents (including Reimbursement Obligations, if applicable) to such
designated financial institution; provided, however, that (i) such assignment
shall be without recourse, representation or warranty and shall be on terms and
conditions reasonably satisfactory to such Affected Lender and such designated
financial institution, (ii) the purchase price paid by such designated financial
institution shall be in the amount of such Affected Lender's Loans and its
Percentage of outstanding Reimbursement Obligations, together with all accrued
and unpaid interest and fees in respect thereof, plus all other amounts
(including the amounts demanded and unreimbursed
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under Sections 4.3, 4.5 and 4.6), owing to such Affected Lender hereunder and
(iii) the Borrower shall pay to the Affected Lender and the Agents all
reasonable out-of-pocket expenses incurred by the Affected Lender and the Agents
in connection with such assignment and assumption (including the processing fees
described in Section 11.11.1). Upon the effective date of an assignment
described above, the Replacement Lender shall become a "Lender" for all purposes
under this Agreement and the other Loan Documents.
ARTICLE V
CONDITIONS TO CREDIT EXTENSIONS
SECTION 5.1. [INTENTIONALLY OMITTED].
SECTION 5.2. All Credit Extensions. The obligation of each Lender and, if
applicable, the Issuer, to make any Credit Extension shall be subject to the
satisfaction of each of the conditions precedent set forth in this Section 5.2.
SECTION 5.2.1. Compliance with Warranties, No Default, etc. Both before
and after giving effect to any Credit Extension the following statements shall
be true and correct:
(a) the representations and warranties set forth in Article VI
(excluding, however, those contained in Section 6.7) and each other Loan
Document shall, in each case, be true and correct with the same effect as
if then made (unless stated to relate solely to an earlier date, in which
case such representations and warranties shall be true and correct as of
such earlier date);
(b) except as disclosed by the Borrower or any Parent Guarantor to
the Agents, the Documentation Agent and the Lenders pursuant to Section
6.7
(i) no labor controversy, litigation, arbitration or
governmental investigation or proceeding (including any relating to
any Pharmaceutical Law) shall be pending or, to the knowledge of the
Borrower or any Parent Guarantor, threatened against the Borrower,
any Parent Guarantor or any of their respective Subsidiaries which
could reasonably be expected to have a Material Adverse Effect or
which purports to affect the legality, validity or enforceability of
this Agreement, the Notes or any other Loan Document; and
(ii) no development shall have occurred in any labor
controversy, litigation, arbitration or governmental investigation
or proceeding (including any relating to any Pharmaceutical Law)
disclosed pursuant to Section 6.7 which could reasonably be expected
to have a Material Adverse Effect; and
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(c) no Default shall have then occurred and be continuing, and
neither the Borrower, any Parent Guarantor nor any of their respective
Subsidiaries are in material violation of any law or governmental
regulation or court order or decree (including any Pharmaceutical Law).
SECTION 5.2.2. Credit Extension Request. The Agents shall have received a
Borrowing Request if Loans are being requested, or an Issuance Request if a
Letter of Credit is being requested or extended. Each of the delivery of a
Borrowing Request or Issuance Request and the acceptance by the Borrower of
proceeds of any Credit Extension shall constitute a representation and warranty
by the Borrower that on the date of such Credit Extension (both immediately
before and after giving effect thereto and the application of the proceeds
thereof) the statements made in Section 5.2.1 are true and correct.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
In order to induce the Lenders, the Documentation Agent, the Issuer and
the Agents to enter into this Agreement and to make Credit Extensions hereunder,
each of the Borrower and each Parent Guarantor represents and warrants unto the
Agents, the Documentation Agent, the Issuer and each Lender as set forth in this
Article VI.
SECTION 6.1. Organization, etc. Each of the Borrower, each Parent
Guarantor and each of their respective Subsidiaries (a) is a corporation or
partnership validly organized and existing and in good standing to the extent
required under the laws of the jurisdiction of its incorporation or formation,
is duly qualified to do business and is in good standing as a foreign
corporation or partnership to the extent required under the laws of each
jurisdiction where the nature of its business requires such qualification, and
(b) has full power and authority and holds all requisite material governmental
licenses, permits and other approvals to (i) enter into and perform its
Obligations under this Agreement, the Notes and each other Loan Document to
which it is a party and (ii) own and hold under lease its property and to
conduct its business substantially as currently conducted by it.
SECTION 6.2. Due Authorization, Non-Contravention, etc. The execution,
delivery and performance by each of the Borrower, each Parent Guarantor and each
of their respective Subsidiaries of this Agreement, the Notes and each other
Loan Document executed or to be executed by it are within the Borrower's and
each such Obligor's corporate or partnership powers, have been duly authorized
by all necessary corporate or partnership action, and do not (i) contravene the
Borrower's or any such Obligor's Organic Documents, (ii) contravene any
contractual restriction, law or governmental regulation or court decree or order
binding on or
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affecting the Borrower or any such Obligor, or (iii) result in, or require the
creation or imposition of, any Lien on any of the Borrower's or any other
Obligor's properties, except pursuant to the terms of a Loan Document.
SECTION 6.3. Government Approval, Regulation, etc. No authorization or
approval or other action by, and no notice to or filing with, any governmental
authority or regulatory body or other Person, is required for the due execution,
delivery or performance by any of the Borrower, any Parent Guarantor or any of
their respective Subsidiaries of this Agreement, the Notes or any other Loan
Document to which it is a party, except as have been duly obtained or made and
are in full force and effect. None of the Borrower, any Parent Guarantor or any
of their respective Subsidiaries is an "investment company" within the meaning
of the Investment Company Act of 1940, as amended, or a "holding company", or a
"subsidiary company" of a "holding company", or an "affiliate" of a "holding
company" or of a "subsidiary company" of a "holding company", within the meaning
of the Public Utility Holding Company Act of 1935, as amended.
SECTION 6.4. Validity, etc. This Agreement constitutes, and the Notes and
each other Loan Document executed, or to be executed, by any of the Borrower,
any Parent Guarantor or any of their respective Subsidiaries, as the case may
be, constitutes, or will on the due execution and delivery thereof constitute,
the legal, valid and binding obligations of the Borrower and such other Obligor
enforceable in accordance with their respective terms.
SECTION 6.5. Financial Information. Holdings has delivered to the Agents,
the Documentation Agent and each Lender copies of each of (a) the Base Financial
Statements and (b) the Pro Forma Balance Sheets. Each of the financial
statements described in clause (a) above has been prepared in accordance with
GAAP consistently applied and presents fairly the consolidated financial
condition of the corporations and partnerships covered thereby as at the date
thereof and the results of their operations for the periods then ended, and each
of the financial statements described in clause (b) above has been prepared on a
basis substantially consistent with the basis used to prepare the financial
statements referred to in clause (a) and includes appropriate pro forma
adjustments to give pro forma effect to the New Transaction.
SECTION 6.6. No Material Adverse Change. Except as set forth in Item 6.6
("Material Adverse Change") of the Disclosure Schedule, since December 27, 1997,
there has been no material adverse change in the business, assets, debt service
capacity, tax position, environmental liability, financial condition,
operations, properties or prospects of the Borrower and its Subsidiaries, taken
as a whole, or Holdings and its Subsidiaries, taken as a whole.
SECTION 6.7. Litigation, Labor Controversies, etc. There is no pending or,
to the knowledge of the Borrower or any Parent Guarantor, threatened litigation,
action, proceeding, labor controversy, arbitration or governmental investigation
or proceeding (including any relating to any Pharmaceutical Law) affecting the
Borrower, any Parent Guarantor or any of their respective Subsidiaries, or any
of their respective properties, businesses, assets or revenues,
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which might have a Material Adverse Effect or which purports to affect the
legality, validity or enforceability of this Agreement, the Notes or any other
Loan Document, except as disclosed in Item 6.7 ("Litigation") of the Disclosure
Schedule.
SECTION 6.8. Subsidiaries. Holdings has no direct Subsidiaries other than
DRI I and the Borrower (of which it is a general partner and directly holds a
99% general partnership interest). DRI I has no direct Subsidiaries other than
the Borrower (of which it is a general partner and holds a 1% general
partnership interest). The Borrower has no Subsidiaries, except for those
Subsidiaries which are permitted to have been acquired in accordance with
Section 7.2.5 or 7.2.8.
SECTION 6.9. Ownership of Properties. Each of the Borrower, each Parent
Guarantor and each of their respective Subsidiaries owns (except where the
failure to own such property would not reasonably be expected to have a Material
Adverse Effect) good and marketable title to all of its properties and assets,
real and personal, tangible and intangible, of any nature whatsoever (including
patents, trademarks, trade names, service marks and copyrights), free and clear
of all Liens, charges or claims (including infringement claims with respect to
patents, trademarks, copyrights and the like), except as permitted pursuant to
Section 7.2.3. All Real Property owned or leased by any of the Borrower, each
Parent Guarantor and each of their respective Subsidiaries and the nature of the
interest therein is described in Item 6.9 ("Real Property") of the Disclosure
Schedule.
SECTION 6.10. Taxes. Each of the Borrower, each Parent Guarantor and each
of their respective Subsidiaries has filed all tax returns and reports required
by law to have been filed by it and has paid all taxes and governmental charges
thereby shown to be owing, except any such taxes or charges which are being
diligently contested in good faith by appropriate proceedings and for which
adequate reserves in accordance with GAAP shall have been set aside on its
books.
SECTION 6.11. Pension and Welfare Plans. During the
twelve-consecutive-month period prior to the date of the execution and delivery
of this Agreement and prior to the Amendment Effective Date, no steps have been
taken to terminate any Pension Plan (other than pursuant to a "standard
termination" in accordance with section 4041(B) of ERISA), and no contribution
failure has occurred with respect to any Pension Plan sufficient to give rise to
a Lien under section 302(f) of ERISA. No condition exists or event or
transaction has occurred with respect to any Pension Plan which could reasonably
be expected to result in the incurrence by Holdings or any member of the
Controlled Group of any material liability, fine or penalty. Except as disclosed
in Item 6.11 ("Employee Benefit Plans") of the Disclosure Schedule, neither
Holdings nor any member of the Controlled Group has any contingent liability
with respect to any post-retirement benefit under a Welfare Plan, other than
liability for continuation coverage described in Part 6 of Title I of ERISA.
SECTION 6.12. Environmental Warranties. Except as set forth in Item 6.12
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("Environmental Matters") of the Disclosure Schedule:
(a) all facilities and property (including underlying groundwater)
owned or leased by the Borrower, any Parent Guarantor or any of their
respective Subsidiaries have been, and continue to be, owned or leased by
the Borrower, such Parent Guarantor or such Subsidiary in material
compliance with all Environmental Laws;
(b) there have been no past, and there are no pending or, to the
best of each of the Borrower's and each Parent Guarantor's knowledge after
due inquiry, threatened
(i) claims, complaints, notices or requests for information
received by the Borrower, any Parent Guarantor or any of their
respective Subsidiaries with respect to any alleged violation of any
Environmental Law, or
(ii) complaints, notices or inquiries to the Borrower, any
Parent Guarantor or any of their respective Subsidiaries regarding
potential liability under any Environmental Law;
(c) there have been no Releases of Hazardous Materials at, on or
under any property now or previously owned or leased by the Borrower, any
Parent Guarantor or any of their respective Subsidiaries that, singly or
in the aggregate, have, or could reasonably be expected to have, a
Material Adverse Effect;
(d) the Borrower, each Parent Guarantor and each of their respective
Subsidiaries have been issued and are in material compliance with all
permits, certificates, approvals, licenses and other authorizations
relating to environmental matters and necessary or desirable for their
businesses;
(e) no property now or previously owned or leased by the Borrower,
any Parent Guarantor or any of their respective Subsidiaries is listed or,
to the best of each of the Borrower's and each Parent Guarantor's
knowledge after due inquiry, proposed for listing (with respect to owned
property only) on the National Priorities List pursuant to CERCLA, on the
CERCLIS or on any similar state list of sites requiring investigation or
clean-up;
(f) there are no underground storage tanks, active or abandoned,
including petroleum storage tanks, on or under any property now or
previously owned or leased by the Borrower, any Parent Guarantor or any of
their respective Subsidiaries that, singly or in the aggregate, have, or
could reasonably be expected to have, a Material Adverse Effect;
(g) neither the Borrower, any Parent Guarantor nor any of their
respective
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Subsidiaries has directly transported or directly arranged for the
transportation of any Hazardous Material to any location which is listed
or proposed for listing on the National Priorities List pursuant to
CERCLA, on the CERCLIS or on any similar state list or which is the
subject of federal, state or local enforcement actions or other
investigations which may lead to claims against the Borrower, such Parent
Guarantor or such Subsidiary thereof for any remedial work, damage to
natural resources or personal injury, including claims under CERCLA that,
singly or in the aggregate, have, or could reasonably be expected to have,
a Material Adverse Effect;
(h) there are no polychlorinated biphenyls or friable asbestos
present at any property now or previously owned or leased by the Borrower,
any Parent Guarantor or any of their respective Subsidiaries that, singly
or in the aggregate, have, or could reasonably be expected to have, a
Material Adverse Effect; and
(i) no conditions exist at, on or under any property now or
previously owned or leased by the Borrower, any Parent Guarantor or any of
their respective Subsidiaries which, with the passage of time, or the
giving of notice or both, would give rise to liability under any
Environmental Law that could reasonably be expected to have a Material
Adverse Effect.
SECTION 6.13. Regulations U and X. Neither the Borrower, any Parent
Guarantor nor any of their respective Subsidiaries is engaged in the business of
extending credit for the purpose of purchasing or carrying margin stock, and no
proceeds of any Credit Extension will be used to acquire any "margin stock".
Terms for which meanings are provided in F.R.S. Board Regulation U or X or any
regulations substituted therefor, as from time to time in effect, are used in
this Section with such meanings.
SECTION 6.14. Accuracy of Information. All material factual information
concerning the financial condition, operations or prospects of the Borrower,
each Parent Guarantor and their respective Subsidiaries heretofore or
contemporaneously furnished by or on behalf of the Borrower, any Parent
Guarantor or any of their respective Subsidiaries in writing to the Agents, the
Documentation Agent, the Arranger, the Issuer or any Lender for purposes of or
in connection with this Agreement or any transaction contemplated hereby or with
respect to the New Transaction is, and all other such factual information
hereafter furnished by or on behalf of the Borrower, any Parent Guarantor or any
of their respective Subsidiaries to the Agents, the Documentation Agent, the
Arranger, the Issuer or any Lender will be, taken as a whole, true and accurate
in all material respects on the date as of which such information is dated or
certified and such information is not, or shall not be, taken as a whole, as the
case may be, incomplete by omitting to state any material fact necessary to make
such information not misleading at such time in light of the circumstances under
which such statements were made. Any term or provision of this Section to the
contrary notwithstanding, insofar as any of the factual information described
above includes assumptions, estimates, projections or opinions, no
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representation or warranty is made herein with respect thereto; provided,
however, that to the extent any such assumptions, estimates, projections or
opinions are based on factual matters, the Borrower and each Parent Guarantor
have reviewed such factual matters and nothing has come to the attention of any
such Person in the context of such review which would lead it to believe that
such factual matters were not or are not true and correct in all material
respects or that such factual matters omit to state any material fact necessary
to make such assumptions, estimates, projections or opinions not misleading in
any material respect.
SECTION 6.15. Solvency. The New Transaction (including, among other
things, the incurrence of the initial Credit Extension hereunder and the
execution and delivery by the Guarantors of the Guarantees) will not involve or
result in any fraudulent transfer or fraudulent conveyance under the provisions
of Section 548 of the Bankruptcy Code (11 U.S.C. ss.101 et seq., as from time to
time hereafter amended, and any successor or similar statute) or any applicable
state law respecting fraudulent transfers or fraudulent conveyances. On the
Amendment Effective Date, after giving effect to the New Transaction, Holdings
and its Subsidiaries and the Borrower and its Subsidiaries, in each case taken
as a whole, are Solvent.
SECTION 6.16. Pharmaceutical Laws. (a) The Borrower, each Parent Guarantor
and each of their respective Subsidiaries has obtained all permits, licenses and
other authorizations which are required with respect to the ownership and
operations of its business under any Pharmaceutical Law, except where the
failure to obtain such permits, licenses or other authorizations would not
reasonably be expected to have a Material Adverse Effect.
(b) The Borrower, each Parent Guarantor and each of their respective
Subsidiaries is in compliance with all terms and conditions of all such permits,
licenses, orders and authorizations, and is also in compliance with all
Pharmaceutical Laws, including all other limitations, restrictions, conditions,
standards, prohibitions, requirements, obligations, schedules and timetables
contained in the Pharmaceutical Laws, except where the failure to comply with
such terms, conditions or laws would not reasonably be expected to have a
Material Adverse Effect.
(c) Other than as set forth in Item 6.16(c) ("Pharmaceutical Liabilities")
of the Disclosure Schedule, none of the Borrower, any Parent Guarantor nor any
of their respective Subsidiaries has any liabilities, any claims against it and
presently any outstanding notices imposed or based upon any provision of any
Pharmaceutical Law, except for such liabilities, claims, citations or notices
which individually or in the aggregate would not reasonably be expected to have
a Material Adverse Effect.
SECTION 6.17. Seniority of the Obligations and Senior Debt under the
Senior Subordinated Indenture. (a) The Senior Subordinated Notes have been
issued and sold to the underwriters thereof on the Closing Date in accordance
with and pursuant to the Senior Subordinated Note Indenture and the other Senior
Subordinated Note Documents and in compliance with all laws, including the
Securities Act of 1933, as amended and all other
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applicable federal and state securities laws. The issuance of the Senior
Subordinated Notes and the execution of the Senior Subordinated Note Indenture
and the other Senior Subordinated Note Documents have been duly authorized by
all necessary corporate action on the part of Holdings, the Borrower and DRI I
and will not require any consent or approval of any governmental agency or
authority that has not been obtained prior to the Closing Date. The issuance of
the Senior Subordinated Notes and the execution of the Senior Subordinated Note
Indenture and the other Senior Subordinated Note Documents do not conflict with
(i) any material provision of any material law, (ii) the Organic Documents of
Holdings, the Borrower or DRI I, (iii) any material agreement binding upon
Holdings, the Borrower or DRI I, or (iv) any material court or administrative
order or decree applicable to Holdings, the Borrower or DRI I, and do not and
will not require, or result in, the creation or imposition of any Lien on any
asset of Holdings, the Borrower or DRI I. All representations and warranties of
Holdings, the Borrower or DRI I contained in the Senior Subordinated Note
Indenture and the other Senior Subordinated Note Documents are true and correct
in all material respects as of the Closing Date.
(b) Each Senior Subordinated Note Document (including the Senior
Subordinated Notes and the Senior Subordinated Notes Guarantee) constitutes the
legal, valid and binding obligation of each of Holdings and the Borrower, as the
case may be, enforceable against each of Holdings and the Borrower, as the case
may be, in accordance with its terms. The subordination provisions of each such
Senior Subordinated Note Document will be enforceable against the holders of the
Senior Subordinated Notes by the holder of any "Senior Debt" (as defined in the
Senior Subordinated Note Indenture). All Obligations, including those to pay
principal of and interest (including post-petition interest) on the Loans and
Reimbursement Obligations, and fees and expenses in connection therewith,
constitute "Senior Debt" (as defined in the Senior Subordinated Note Indenture)
and all such Obligations are entitled to the benefits of the subordination
created by such Senior Subordinated Note Document. Each of Holdings and the
Borrower acknowledges that the Agents, the Documentation Agent, the Issuer and
each Lender is entering into this Agreement, and is extending its Commitments,
in reliance upon the subordination provisions of such Senior Subordinated Note
Documents and this Section.
SECTION 6.18. Year 2000. Each Obligor has reviewed the areas within its
business and operations which could be adversely affected by, and has developed
or is developing a program to address on a timely basis, the "Year 2000 Problem"
(that is, the risk that computer applications used by such Obligor may be unable
to recognize and properly perform date-sensitive functions involving certain
dates prior to and any date after December 31, 1999). Based on such review and
program, each Obligor believes that the "Year 2000 Problem" could not reasonably
be expected to have a Material Adverse Effect.
ARTICLE VII
COVENANTS
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SECTION 7.1. Affirmative Covenants. Each of the Borrower and each Parent
Guarantor agrees with the Agents, the Documentation Agent, the Issuer and each
Lender that, until all Commitments have terminated, all Letters of Credit have
terminated or expired and all Obligations have been paid and performed in full,
each of the Borrower and each Parent Guarantor will perform, or cause to be
performed by their respective Subsidiaries, the obligations set forth in this
Section 7.1.
SECTION 7.1.1. Financial Information, Reports, Notices, etc. Holdings will
furnish, or will cause to be furnished, to each Lender, the Documentation Agent,
the Issuer and each Agent copies of the following financial statements, reports,
notices and information:
(a) as soon as available and in any event within 30 days after the
end of each fiscal month other than the last such month of any Fiscal
Quarter of Holdings, a consolidated balance sheet of Holdings and its
Subsidiaries as at the end of such month, together, in each case, with the
related consolidated statements of income and cash flows for such month
and for the period commencing at the end of the previous Fiscal Year and
ending with the last day of such month, certified by the chief financial
or accounting Authorized Officer of Holdings;
(b) as soon as available and in any event within 60 days after the
end of each of the first three Fiscal Quarters of each Fiscal Year of
Holdings (or, if Holdings is required to file such information on a Form
10-Q with the Securities and Exchange Commission, promptly following such
filing), a consolidated balance sheet of Holdings and its Subsidiaries as
of the end of such Fiscal Quarter, together, in each case, with the
related consolidated statements of income and cash flows for such Fiscal
Quarter and for the period commencing at the end of the previous Fiscal
Year and ending with the end of such Fiscal Quarter, certified by the
chief financial or accounting Authorized Officer of Holdings;
(c) as soon as available and in any event within 90 days after the
end of each Fiscal Year of Holdings (or, if Holdings is required to file
such information on a Form 10-K with the Securities and Exchange
Commission, promptly following such filing), a copy of the annual audit
report for such Fiscal Year for Holdings and its Subsidiaries, including
therein a consolidated balance sheet for Holdings and its Subsidiaries as
of the end of such Fiscal Year, together with the related consolidated
statements of income and cash flows for such Fiscal Year certified
(without any Impermissible Qualification) by Price Waterhouse LLP or
another nationally recognized firm of independent public accountants
acceptable to the Agents, together with a certificate from such
accountants as to whether, in making the examination necessary for the
signing of such annual report by such accountants, they have not become
aware of any Default that has occurred and is continuing or, if in the
opinion of such accounting firm such a Default has occurred and is
continuing, a statement as to the nature thereof;
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(d) together with the delivery of the financial information required
pursuant to clauses (b) and (c), a Compliance Certificate, in
substantially the form of Exhibit E, executed by the chief financial or
accounting Authorized Officer of Holdings, showing (in reasonable detail
and with appropriate calculations and computations in all respects
satisfactory to the Agents) compliance with, among other things, the
financial covenants set forth in Section 7.2.4;
(e) (i) as soon as available and in any event no later than 60 days
after the first day of each Fiscal Year of Holdings, an annual budget,
setting forth on a monthly basis and in reasonable detail for such Fiscal
Year of Holdings and its Subsidiaries containing consolidated and
consolidating projected statements of earnings and cash flow and (ii)
together with the delivery of financial statements pursuant to clause (a),
(b) or (c) above, a comparison of the current year to date financial
results (other than in respect of the balance sheets included therein)
against the budgets required to be submitted pursuant to this clause (e);
(f) as soon as possible and in any event within five Business Days
after obtaining knowledge of the occurrence of any Default, a statement of
the president, chief executive officer, treasurer, assistant treasurer,
controller or chief financial or accounting Authorized Officer of the
Borrower or Holdings setting forth details of such Default and the action
which the Borrower or Holdings, as the case may be, has taken or proposes
to take with respect thereto;
(g) as soon as possible and in any event within five Business Days
after (x) the occurrence of any material adverse development with respect
to any litigation, action, proceeding, labor controversy, arbitration or
governmental investigation or proceeding described in Section 6.7 or (y)
the commencement of any labor controversy, litigation, action, proceeding
of the type described in Section 6.7, notice thereof and of the action
which the Borrower or Holdings has taken or proposes to take with respect
thereto;
(h) promptly after the sending or filing thereof, copies of all
reports and registration statements (other than exhibits thereto and any
registration statement on Form S-8 or its equivalent) which the Borrower,
any Parent Guarantor or any of their respective Subsidiaries files with
the Securities and Exchange Commission or any national securities
exchange;
(i) as soon as practicable after the chief executive or chief
financial or accounting Authorized Officer of Holdings or the chief
executive or chief financial or accounting officer of a member of
Holdings' Controlled Group becomes aware of (i) formal steps in writing to
terminate any Pension Plan or (ii) the occurrence of any event with
respect to a Pension Plan which, in the case of (i) or (ii), could
reasonably be expected to result in a
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contribution to such Pension Plan by (or a liability to) Holdings or a
member of the Holdings' Controlled Group in excess of $1,000,000, (iii)
the failure to make a required contribution to any Pension Plan if such
failure is sufficient to give rise to a Lien under section 302(f) of
ERISA, (iv) the taking of any action with respect to a Pension Plan which
could reasonably be expected to result in the requirement that Holdings or
any of its Subsidiaries furnish a bond to the PBGC or such Pension Plan or
(v) any material increase in the contingent liability of Holdings or any
of its Subsidiaries with respect to any post-retirement Welfare Plan
benefit, notice thereof and copies of all documentation relating thereto;
(j) as soon as possible and in any event within five Business Days
after the delivery thereof, copies of all notices, agreements or documents
delivered pursuant to the Senior Subordinated Note Documents and each
other agreement for borrowed money to which any Parent Guarantor, the
Borrower or any their respective Subsidiaries is a party and with a
commitment or outstandings exceeding $3,000,000, except for such notices,
agreements or documents delivered pursuant to the terms hereof;
(k) on November 30, 2002, a certificate from an Authorized Officer
of the Borrower, dated as of such date, in which certificate such
Authorized Officer shall certify that all actions necessary for the
continued perfection of the Administrative Agent's Liens on all Collateral
(as defined in each Loan Document) for the period from the fifth
anniversary of the Closing Date until the Stated Maturity Date for Term C
Loans have been taken (including all recordings, registerings, filings,
re-recordings, re-registerings and refilings of all financing statements,
continuation statements or other instruments of further assurance as is
necessary to ensure such continued perfection); and
(l) such other information respecting the condition or operations,
financial or otherwise, of the Borrower, any Parent Guarantor or any of
their respective Subsidiaries as any Lender through any Agent may from
time to time reasonably request.
SECTION 7.1.2. Compliance with Laws, etc. Each of the Borrower and each
Parent Guarantor will, and will cause each of their respective Subsidiaries to,
comply in all material respects with all applicable laws, rules, regulations,
orders, decrees, judgments and injunctions, such compliance to include (a) the
maintenance and preservation of its corporate or partnership existence and
qualification as a foreign corporation or partnership, (b) the payment, before
the same become delinquent, of all material taxes, assessments and governmental
charges imposed upon it or upon its property except to the extent being
contested in good faith by appropriate proceedings and for which adequate
reserves in accordance with GAAP shall have been set aside on its books and (c)
compliance with all Pharmaceutical Laws.
SECTION 7.1.3. Maintenance of Properties. Each of the Borrower and each
Parent Guarantor will, and will cause each of their respective Subsidiaries to,
maintain, preserve, protect
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and keep its material properties in good repair, working order and condition
(ordinary wear and tear excepted), and make necessary and proper repairs,
renewals and replacements so that its business carried on in connection
therewith may be properly conducted at all times unless the Borrower determines
in good faith that the continued maintenance of any of such properties is no
longer economically desirable.
SECTION 7.1.4. Insurance. Each of the Borrower and each Parent Guarantor
will, and will cause each of their respective Subsidiaries to, maintain or cause
to be maintained with insurance companies rated A- or better by A.M. Best
Company insurance with respect to its properties and business against such
casualties and contingencies and of such types and in such amounts as is
customary in the case of similar businesses in similar geographic locations and
with such provisions and endorsements as the Agents may reasonably request
(provided that in no event will any deductible or self-insured retention in
respect of liability claims or in respect of casualty damage exceed, in each
such case, $500,000 per occurrence) and will, upon request of the Agents,
furnish to the Agents, the Documentation Agent and each Lender a certificate of
an Authorized Officer of the Borrower setting forth the nature and extent of all
insurance maintained by each of the Borrower, each Parent Guarantor and each of
their respective Subsidiaries in accordance with this Section. Without limiting
the foregoing, each of the Borrower and each Parent Guarantor will, and will
cause each of their respective Subsidiaries to, ensure that:
(a) Each policy for property insurance shall show the Administrative
Agent as loss payee.
(b) Each policy for liability insurance shall show the
Administrative Agent as an additional insured.
(c) With respect to each life insurance policy, the Borrower, such
Parent Guarantor or such Subsidiary, as the case may be, shall execute and
deliver to the Administrative Agent a collateral assignment, notice of
which has been acknowledged in writing by the insurer.
(d) Each insurance policy shall provide that at least 30 days' prior
written notice of cancellation or of lapse shall be given to the
Administrative Agent by the insurer.
(e) The Borrower, such Parent Guarantor or such Subsidiary, as the
case may be, shall, if so requested by the Administrative Agent, deliver
to the Administrative Agent a copy of each insurance policy.
SECTION 7.1.5. Books and Records. Each of the Borrower and each Parent
Guarantor will, and will cause each of their respective Subsidiaries to, (a)
keep books and records which accurately reflect in all material respects all of
its business affairs and transactions and (b) permit
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the Agents, the Documentation Agent, the Issuer and each Lender or any of their
respective representatives, at reasonable times and intervals, and upon
reasonable notice, (i) to visit all of its offices, (ii) to discuss its
financial matters with its officers and, after notice to the Borrower and
provision of an opportunity for the Borrower to participate in such discussion,
its independent public accountant (and each of the Borrower and each Parent
Guarantor hereby authorizes, and will cause each of their respective
Subsidiaries to authorize, such independent public accountant to discuss the
Borrower's, such Parent Guarantor's or such Subsidiary's financial matters with
the Issuer and each Lender or its representatives whether or not any
representative of the Borrower, such Parent Guarantor or such Subsidiary is
present, so long as the Borrower, such Parent Guarantor or such Subsidiary has
been afforded a reasonable opportunity to be present) and (iii) to examine, and
photocopy extracts from, any of its books or other corporate or partnership
records. The cost and expense of one such visit (the "Paid Visit") by each Agent
in each Fiscal Year shall be borne by the Borrower; provided, however, that the
cost and expenses of any visit made by such Agent after a Default or an Event of
Default has occurred and is then continuing shall be for the account of the
Borrower and shall not count as the Paid Visit made by such Agent.
SECTION 7.1.6. Environmental Covenant. Each of the Borrower and each
Parent Guarantor will, and will cause each of their respective Subsidiaries to,
(a) use and operate all of its facilities and properties in material
compliance with all Environmental Laws, keep all necessary permits,
approvals, certificates, licenses and other authorizations relating to
environmental matters in effect and remain in material compliance
therewith, and handle all Hazardous Materials in material compliance with
all applicable Environmental Laws;
(b) immediately notify the Agents and provide copies upon receipt of
all written claims, complaints, notices or inquiries relating to the
condition of its facilities and properties or compliance with
Environmental Laws; and
(c) provide such information and certifications which the Agents may
reasonably request from time to time to evidence compliance with this
Section 7.1.6.
SECTION 7.1.7. Future Subsidiaries. Each of the Borrower and each Parent
Guarantor hereby covenants and agrees that, upon any Person becoming, after the
Amendment Effective Date, a Subsidiary of the Borrower, or (in the case of
clause (b) below only) upon the Borrower or any Subsidiary acquiring additional
Capital Stock of any existing Subsidiary, the Borrower shall notify the Agents
of such acquisition, and
(a) the Borrower shall promptly cause such Subsidiary to execute and
deliver to the Administrative Agent, with counterparts for each Lender, a
Subsidiary Guaranty (or a supplement thereto in the form of the exhibit
thereto), the Subsidiary Security Agreement
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(or a supplement thereto in the form of the exhibit thereto) (and, if such
Subsidiary owns any real property, a Mortgage) and a Perfection
Certificate, together with Uniform Commercial Code financing statements
(form UCC-1) executed and delivered by the Subsidiary naming the
Subsidiary as the debtor and the Administrative Agent as the secured
party, or other similar instruments or documents, in appropriate form for
filing under the Uniform Commercial Code and any other applicable
recording statutes, in the case of real property, of all jurisdictions as
may be necessary or, in the opinion of the Administrative Agent, desirable
to perfect the security interest of the Administrative Agent pursuant to
the Subsidiary Security Agreement or a Mortgage, as the case may be; and
(b) the Borrower shall promptly deliver the Borrower Pledge
Agreement to the Agents, duly executed and delivered by an Authorized
Officer of the Borrower (unless so executed and delivered previously), and
shall promptly deliver, or cause to be delivered, the Subsidiary Pledge
Agreement to the Agents, duly executed and delivered by an Authorized
Officer of the relevant Subsidiary (unless so executed and delivered
previously), and shall promptly deliver, or cause to be delivered, to the
Administrative Agent under a Pledge Agreement (or a supplement thereto)
certificates (if any) representing all of the issued and outstanding
shares of Capital Stock of such Subsidiary owned by the Borrower or any
Subsidiary of the Borrower, as the case may be, along with undated stock
powers for such certificates, executed in blank, or, if any securities
subject thereto are uncertificated securities or are held through a
financial intermediary, confirmation and evidence satisfactory to the
Agents that appropriate book entries have been made in the relevant books
or records of a financial intermediary or the issuer of such securities,
as the case may be, or other appropriate steps shall have been taken under
applicable law resulting in the perfection of the security interest
granted in favor of the Administrative Agent pursuant to the terms of a
Pledge Agreement;
together, in each case, with such opinions, in form and substance and from
counsel satisfactory to the Agents, as the Agents may reasonably request;
provided, however, that notwithstanding the foregoing, no Foreign Subsidiary
shall be required to execute and deliver (x) a Mortgage or the Subsidiary
Security Agreement (or a supplement thereto) or (y) the Subsidiary Guaranty (or
a supplement thereto) in the event that such execution and delivery thereof
would result in a material increase in tax or similar liabilities for the
Borrower and its Subsidiaries, on a consolidated basis, nor will the Borrower or
any Subsidiary of the Borrower be required to deliver in pledge pursuant to a
Pledge Agreement in excess of 65% of the total combined voting power of all
classes of Capital Stock of a Foreign Subsidiary entitled to vote in the event
that such pledge would result in a material increase in tax or similar
liabilities for the Borrower and its Subsidiaries, on a consolidated basis.
SECTION 7.1.8. Future Leased Property and Future Acquisitions of Real
Property; Future Acquisition of Other Property. (a) Prior to entering into any
new lease of real property or renewing any existing lease of real property
following the Amendment Effective Date (including
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any lease entered into in connection with a Sale and Leaseback Transaction),
each of the Borrower and each Parent Guarantor shall, and shall cause each of
their respective Subsidiaries that is not a Foreign Subsidiary to, use its (and
their) commercially reasonable best efforts (which shall not require the
expenditure of cash or the making of any material concessions under the relevant
lease) to deliver to the Administrative Agent a Property Waiver executed by the
lessor of any real property that is to be leased by the Borrower, such Parent
Guarantor or such Subsidiary for a term in excess of one year in any state which
by statute grants such lessor a "landlord's" (or similar) Lien which is superior
to the Administrative Agent's.
(b) In the event that the Borrower, any Parent Guarantor or any of their
respective Subsidiaries that is not a Foreign Subsidiary shall acquire any real
property having a value as determined in good faith by the Agents in excess of
$1,000,000 in the aggregate, the Borrower, such Parent Guarantor or such
Subsidiary shall, promptly after such acquisition, execute a Mortgage and
provide the Agents with (i) evidence of the completion (or satisfactory
arrangements for the completion) of all recordings and filings of such Mortgage
as may be necessary or, in the reasonable opinion of the Agents, desirable
effectively to create a valid, perfected first priority Lien, subject to Liens
permitted by Section 7.2.3, against the properties purported to be covered
thereby, (ii) mortgagee's title insurance policies in favor of the
Administrative Agent for the benefit of the Secured Parties in amounts and in
form and substance and issued by insurers, reasonably satisfactory to the
Agents, with respect to the property purported to be covered by such Mortgage,
insuring that title to such property is marketable and that the interests
created by the Mortgage constitute valid first Liens thereon free and clear of
all defects and encumbrances other than as approved by the Agents, and such
policies shall also include a revolving credit endorsement and such other
endorsements as the Agents shall request and shall be accompanied by evidence of
the payment in full of all premiums thereon, and (iii) such other approvals,
opinions, or documents as the Agents may reasonably request; provided, however,
that the Borrower or any of its Subsidiaries that is not a Foreign Subsidiary
will not have to execute and deliver a Mortgage in respect of such property
under the terms of this clause (b) if (A) the Borrower or such Subsidiary
acquires such property for the purposes of entering into a Sale and Leaseback
Transaction pursuant to Section 7.2.14 (such property a "Subject Property"), (B)
such Subject Property is sold within one year of the date of its purchase, and
(C) the Valuation Amount of such Subject Property when taken together with the
Valuation Amount of each other Subject Property owned by the Borrower and its
Subsidiaries does not exceed $7,000,000 at any time.
(c) In accordance with the terms and provisions of the Security Documents,
provide the Agents with evidence of all recordings and filings as may be
necessary or, in the reasonable opinion of the Agents, desirable to create a
valid, perfected first priority Lien, subject to the Liens permitted by Section
7.2.3, against all property acquired after the Amendment Effective Date
(excluding leases of real property).
SECTION 7.1.9. Use of Proceeds, etc. The Borrower shall, and each Parent
Guarantor
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shall cause the Borrower to,
(a) apply the proceeds of (i) the Additional Term C Loans to repay
outstanding Existing Revolving Loans on the Amendment Effective Date and
(ii) the Additional Term C Loans (to the extent not applied in accordance
with clause (a)(i) above), the Revolving Loans and the Swing Line Loans,
for the general corporate purposes of (A) the Borrower and its
Subsidiaries, including working capital needs and financing for store
expansions and acquisitions and (B) Holdings, to the extent permitted
under Section 7.2.6; and
(b) use Letters of Credit only for purposes of supporting working
capital and general corporate purposes of the Borrower and its
Subsidiaries.
SECTION 7.1.10. [INTENTIONALLY OMITTED].
SECTION 7.1.11. [INTENTIONALLY OMITTED].
SECTION 7.1.12. Maintenance of Corporate Separateness. Each Parent
Guarantor will satisfy customary corporate formalities, including the
maintenance of corporate records. Each Parent Guarantor shall not make any
payment to a creditor of any other Obligor in respect of any liability of such
Obligor (other than pursuant to a Contingent Liability permitted hereunder), and
no bank account of such Parent Guarantor shall be commingled with any bank
account of any other Obligor. Any financial statements distributed to any
creditors of any Parent Guarantor shall, to the extent permitted by GAAP,
clearly establish the corporate separateness of such Parent Guarantor from each
other Obligor. Finally, each Parent Guarantor shall not take any action, or
conduct its affairs in a manner, which is likely to result in the corporate
existence of such Parent Guarantor on the one hand and of any other Obligor on
the other hand being ignored, or in the assets and liabilities of such other
Obligor being substantively consolidated with those of such Parent Guarantor in
a bankruptcy, reorganization or other insolvency proceeding.
SECTION 7.1.13. Borrower Indebtedness. Any Indebtedness of the Borrower
now or hereafter held by any Parent Guarantor or any of their respective
Subsidiaries (other than the Borrower) is hereby subordinated to the
Indebtedness of the Borrower to the Agents, the Issuer and the Lenders; and such
indebtedness of the Borrower to such Parent Guarantor or such Subsidiary, if the
Agents, after an Event of Default has occurred, so requests, shall be collected,
enforced and received by such Parent Guarantor or such Subsidiary as trustee for
the Agents, the Issuer and the Lenders and be paid over to the Administrative
Agent on behalf of the Agents, the Issuer and the Lenders on account of the
indebtedness of the Borrower to the Agents, the Issuer and the Lenders, but
without affecting or impairing in any manner the obligations of such Parent
Guarantor or such Subsidiary hereunder or under each other Loan Document to
which it is a party. Prior to the transfer by any Parent Guarantor or any their
respective Subsidiaries (other than the Borrower) of any note or negotiable
instrument evidencing any indebtedness of the Borrower to such Parent Guarantor
or such Subsidiary, such Parent Guarantor or such Subsidiary shall mark such
note or negotiable instrument with a legend that the same is subject to this
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subordination.
SECTION 7.1.14. Existing Mortgage. If the Borrower has not sold the real
property described in the Existing Mortgage by December 31, 1998, the Borrower
shall fulfill its obligations under clause (b) of Section 7.1.8 as if such real
property were acquired after the date hereof.
SECTION 7.2. Negative Covenants. Each of the Borrower and each Parent
Guarantor agrees with the Agents, the Documentation Agent, the Issuer and each
Lender that, until all Commitments have terminated, all Letters of Credit have
terminated or expired and all Obligations have been paid and performed in full,
each of the Borrower and each Parent Guarantor will perform the obligations set
forth in this Section 7.2.
SECTION 7.2.1. Business Activities. (a) The Borrower will not, and will
not permit any of its Subsidiaries to, engage in any business activity, except
business activities of the type in which the Borrower and its Subsidiaries are
engaged on the Closing Date and such activities as may be incidental, similar or
related thereto.
(b) No Parent Guarantor will engage in any business activity other than
(i) its continuing ownership of (A) in the case of Holdings, its 99% general
partnership interest in the Borrower and all the shares of Capital Stock of DRI
I and (B) in the case of DRI I, its 1% general partnership interest in the
Borrower, and (ii) its compliance with all applicable laws, rules and
regulations (including SEC reporting requirements) and the obligations
applicable to it under the Loan Documents and the Material Documents to which
such Parent Guarantor is a party. Without limiting the generality of the
immediately preceding sentence, no Parent Guarantor will take any action,
including the filing of any income tax return, that would result in the Borrower
ceasing to be treated as a partnership within meaning of Section 761(a) of the
Code for Federal income tax purposes.
SECTION 7.2.2. Indebtedness. Each of the Borrower and each Parent
Guarantor will not, and will not permit any of their respective Subsidiaries to,
create, incur, assume or suffer to exist or otherwise become or be liable in
respect of any Indebtedness, other than, without duplication, the following:
(a) Indebtedness in respect of the Credit Extensions and other
Obligations;
(b) [INTENTIONALLY OMITTED];
(c) Indebtedness identified in Item 7.2.2(c) ("Ongoing
Indebtedness") of the Disclosure Schedule;
(d) (i) Indebtedness of Holdings evidenced by the Senior
Subordinated Notes and (ii) Indebtedness of the Borrower, DRI I and each
other Subsidiary of Holdings consisting
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of Contingent Liabilities under the Senior Subordinated Notes Guarantees
in respect of the Indebtedness described in clause (d)(i);
(e) Indebtedness in an aggregate principal amount not to exceed
$15,000,000 at any time outstanding which is, or has been, incurred by the
Borrower or any of its Subsidiaries (i) to a vendor of any assets
permitted to be acquired pursuant to Section 7.2.7 to finance its
acquisition of such assets or (ii) in respect of Capitalized Lease
Liabilities to the extent permitted by Section 7.2.7;
(f) Indebtedness of the Borrower owing to any Subsidiary Guarantor;
(g) Indebtedness of Subsidiary Guarantors that are Wholly-owned
Subsidiaries of the Borrower owing to the Borrower or any other Subsidiary
Guarantor;
(h) Indebtedness of Subsidiaries of the Borrower owing to the
Borrower or a Subsidiary Guarantor to the extent permitted by clause (e)
of Section 7.2.5;
(i) Hedging Obligations of the Borrower in respect of the Loans;
(j) unsecured Indebtedness of the Borrower or any of its
Subsidiaries incurred in the ordinary course of business (including open
accounts extended by suppliers on normal trade terms in connection with
purchases of goods and services, but excluding Indebtedness incurred
through the borrowing of money or Contingent Liabilities);
(k) Indebtedness of the Borrower incurred under the Rapid Remit
Program in an aggregate amount at any time outstanding not to exceed
$5,000,000;
(l) Indebtedness which refinances Indebtedness permitted by clause
(c) and (d) above; provided, however, that after giving effect to such
refinancing, (i) the principal amount of outstanding Indebtedness is not
increased (other than in the case of a refinancing of Indebtedness
permitted by clause (d) above by the amount of reasonable fees and
expenses incurred in connection with such refinancing), (ii) neither the
tenor nor the average life thereof is reduced, (iii) the respective
obligor or obligors shall be the same on the refinancing Indebtedness as
on the Indebtedness being refinanced, (iv) the security, if any, for the
refinancing Indebtedness shall be the same as that for the Indebtedness
being refinanced (except to the extent that less security is granted to
holders of such refinancing Indebtedness), (v) the holders of such
refinancing Indebtedness are not afforded covenants, defaults, rights or
remedies more burdensome to the obligor or obligors than those contained
in the Indebtedness being refinanced and (vi) the refinancing Indebtedness
is subordinated to the same degree, if any, as the Indebtedness being
refinanced; and
(m) other unsecured Indebtedness of the Borrower and its
Subsidiaries in an
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aggregate amount at any time outstanding not to exceed $7,500,000;
provided, however, that (i) no Indebtedness otherwise permitted by clause (e) or
(m) may be incurred if, after giving effect to the incurrence thereof, any
Default shall have occurred and be continuing and (ii) no Indebtedness otherwise
permitted hereunder by any of clauses (a) through (m) may be incurred if, after
giving effect to the application thereof, there shall be a "Default" or "Event
of Default" under and as defined in the Senior Subordinated Note Indenture, as
in effect on the Closing Date.
SECTION 7.2.3. Liens. Each of the Borrower and each Parent Guarantor will
not, and will not permit any of their respective Subsidiaries to, create, incur,
assume or suffer to exist any Lien upon any of its property, revenues or assets,
whether now owned or hereafter acquired, except:
(a) Liens securing payment of the Obligations or any Hedging
Obligations owed to any Lender or any Affiliate of any Lender, granted
pursuant to any Loan Document;
(b) [INTENTIONALLY OMITTED];
(c) Liens granted prior to the Closing Date to secure payment of
Indebtedness of the type permitted and described in clause (c) of Section
7.2.2;
(d) Liens granted to secure payment of Indebtedness of the type
permitted and described in clause (e) of Section 7.2.2 and covering only
those assets acquired with the proceeds of such Indebtedness;
(e) Liens for taxes, assessments or other governmental charges or
levies not at the time delinquent or thereafter payable without penalty or
being diligently contested in good faith by appropriate proceedings and
for which adequate reserves in accordance with GAAP shall have been set
aside on its books;
(f) Liens of carriers, warehousemen, mechanics, materialmen and
landlords incurred in the ordinary course of business for sums not overdue
or being diligently contested in good faith by appropriate proceedings and
for which adequate reserves in accordance with GAAP shall have been set
aside on its books;
(g) Liens incurred in the ordinary course of business in connection
with workmen's compensation, unemployment insurance or other forms of
governmental insurance or benefits, or to secure performance of tenders,
statutory obligations, leases and contracts (other than for borrowed
money) entered into in the ordinary course of business or to secure
obligations on surety or appeal bonds;
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(h) judgment Liens in existence less than 15 days after the entry
thereof or with respect to which execution has been stayed or the payment
of which is covered in full (subject to a customary deductible) by
insurance maintained with insurance companies of the nature described in
Section 7.1.4;
(i) Liens granted by the Borrower in favor of Pharmacy Fund (A)
securing the recourse obligations owing to Pharmacy Fund pursuant to the
Rapid Remit Program for rejected or adjusted Prescription Receivables, (B)
consisting of the right of set-off granted to Pharmacy Fund in connection
with rejected or adjusted receivables, other payments owing to Pharmacy
Fund and administrative fees and expenses pursuant to the Rapid Remit
Program and (C) consisting of precautionary liens on receivables, chattel
paper, general intangibles and the proceeds thereof directly related to
the Rapid Remit Program; and
(j) Liens with respect to minor imperfections of title and
easements, rights-of-way, restrictions, reservations, permits, servitudes
and other similar encumbrances on real property and fixtures which do not
materially detract from the value or materially impair the use by the
Borrower or any of its Subsidiaries in the ordinary course of their
business of the property subject thereto.
SECTION 7.2.4. Financial Covenants. (a) Net Worth. Each of the Borrower
and each Parent Guarantor will not permit Net Worth at any time from and after
the last day of the 1998 Fiscal Year to be less than an amount equal to 50% of
the cumulative Net Income (in excess of zero) for the period from the first day
of the 1998 Fiscal Year to the end of the Fiscal Quarter most recently ended on
or prior to such date of determination.
(b) Leverage Ratio. Each of the Borrower and each Parent Guarantor will
not permit the Leverage Ratio as of the end of any Fiscal Quarter ending after
the Amendment Effective Date and occurring during any period set forth below to
be greater than the ratio set forth opposite such period:
Period Leverage Ratio
------ --------------
first Fiscal Quarter of the 1999 5.00:1
Fiscal Year through the second
Fiscal Quarter of the 1999
Fiscal Year
third Fiscal Quarter of the 1999 4.75:1
Fiscal Year
fourth Fiscal Quarter of the 1999 4.50:1
Fiscal Year
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first Fiscal Quarter of the 2000 3.25:1
Fiscal Year through the fourth
Fiscal Quarter of the 2000
Fiscal Year
first Fiscal Quarter of the 2001 3.00:1
Fiscal Year and each Fiscal
Quarter thereafter
(c) Interest Coverage Ratio. Each of the Borrower and each Parent
Guarantor will not permit the Interest Coverage Ratio as of the end of any
Fiscal Quarter ending after the Amendment Effective Date and occurring during
any period set forth below to be less than the ratio set forth opposite such
period:
Period Interest Coverage Ratio
------ -----------------------
first Fiscal Quarter of the 1999 2.10:1
Fiscal Year through the third
Fiscal Quarter of the 1999
Fiscal Year
fourth Fiscal Quarter of the 1999 2.25:1
Fiscal Year
first Fiscal Quarter of the 2000 3.00:1
Fiscal Year and each Fiscal
Quarter thereafter
(d) Fixed Charge Coverage Ratio. Each of the Borrower and each Parent
Guarantor will not permit the Fixed Charge Coverage Ratio as of the end of any
Fiscal Quarter ending after the Amendment Effective Date and occurring during
any period set forth below to be less than the ratio set forth opposite such
period:
Period Fixed Charge Coverage Ratio
------ ---------------------------
first Fiscal Quarter of the 1999 1.00:1
Fiscal Year through the fourth
Fiscal Quarter of the 1999
Fiscal Year
first Fiscal Quarter of the 2000 1.10:1
Fiscal Year and each Fiscal
Quarter thereafter
SECTION 7.2.5. Investments. Each of the Borrower and each Parent Guarantor
will not, and will not permit any of their respective Subsidiaries to, make,
incur, assume or suffer to exist any Investment in any other Person, except:
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(a) Investments existing on the Closing Date and identified in Item
7.2.5(a) ("Ongoing Investments") of the Disclosure Schedule;
(b) Cash Equivalent Investments;
(c) without duplication, Investments permitted as Indebtedness
pursuant to Section 7.2.2;
(d) without duplication, Investments permitted as Capital
Expenditures of the Borrower and its Subsidiaries pursuant to Section
7.2.7;
(e) Investments by any Parent Guarantor, the Borrower or any
Subsidiary Guarantor in the Borrower or Subsidiary Guarantors that are
Wholly-owned Subsidiaries of the Borrower;
(f) Investments to the extent the consideration received pursuant to
clause (c)(i) of Section 7.2.9 is not all cash;
(g) Investments in the form of loans to officers, directors and
employees of Holdings and its Subsidiaries for the sole purpose of
purchasing Capital Stock of Holdings (or purchases of such loans made by
others) in an aggregate amount at any time outstanding not to exceed
$3,000,000;
(h) other Investments made by the Borrower or any of its
Subsidiaries, by way of contributions to capital, the making of loans or
advances or the incurrence of Contingent Liabilities, in an aggregate
amount not to exceed
(i) to the extent such Investments are made with the Capital
Stock of Holdings, $30,000,000 since the Closing Date (such amounts
in this clause (h)(i) to be determined based on the fair market
value of such Capital Stock at the time of such Investments); and
(ii) to the extent such Investments are not made with the
Capital Stock of Holdings, $20,000,000 since the Closing Date,
which Investments shall result in the Borrower or the relevant Subsidiary
acquiring (subject to Section 7.2.1) a majority controlling interest in
the Person in which such Investment was made or increasing any such
controlling interest maintained by it in such Person; or
(i) other Investments made by the Borrower or any of its
Subsidiaries in an aggregate amount not to exceed $1,000,000 at any time
outstanding;
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provided, however, that
(j) any Investment which when made complies with the requirements of
the definition of the term "Cash Equivalent Investment" may continue to be
held notwithstanding that such Investment if made thereafter would not
comply with such requirements;
(k) no Investment otherwise permitted by clause (c) (except to the
extent permitted under Section 7.2.2), (f), (g), (h) or (i) shall be
permitted to be made if, immediately before or after giving effect
thereto, any Default shall have occurred and be continuing; and
(l) no Investment otherwise permitted by clauses (a) through (i) may
be made if, after giving effect to the application thereof, there shall be
a "Default" or "Event of Default" under and as defined in the Senior
Subordinated Note Indenture, in each case as in effect on the Closing
Date.
SECTION 7.2.6. Restricted Payments, etc. On and at all times after the
date hereof;
(a) each of the Borrower and each Parent Guarantor will not, and
will not permit any of their respective Subsidiaries to, declare, pay or
make any dividend, distribution or exchange (in cash, property or
obligations) on or in respect of any shares of any class of Capital Stock
(now or hereafter outstanding) of the Borrower or any Parent Guarantor or
on any warrants, options or other rights with respect to any shares of any
class of Capital Stock (now or hereafter outstanding) of the Borrower or
any Parent Guarantor (other than (i) dividends or distributions payable in
its common stock or warrants to purchase its common stock and (ii) splits
or reclassifications of its stock into additional or other shares of its
common stock) or apply, or permit any of its Subsidiaries to apply, any of
its funds, property or assets to the purchase, redemption, exchange,
sinking fund or other retirement of, or agree or permit any of its
Subsidiaries to purchase, redeem or exchange, any shares of any class of
Capital Stock (now or hereafter outstanding) of the Borrower or any Parent
Guarantor, warrants, options or other rights with respect to any shares of
any class of Capital Stock (now or hereafter outstanding) of the Borrower
or any Parent Guarantor;
(b) each of the Borrower and each Parent Guarantor will not, and
will not permit any of their respective Subsidiaries to, (i) make any
payment or prepayment of principal of, or make any payment of interest on,
any subordinated note (including any Senior Subordinated Note) on any day
other than the stated, scheduled date for such payment or prepayment set
forth in the documents and instruments memorializing such subordinated
note, or which would violate the subordination provisions of such
subordinated note, or (ii) redeem, purchase or defease any subordinated
note (including any Senior
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Subordinated Note) (the foregoing prohibited acts referred to in clauses
(a) and (b) above are herein collectively referred to as "Restricted
Payments");
provided, however, that
(c) notwithstanding the provisions of clause (a) above, the Borrower
shall be permitted to make Restricted Payments to DRI I (which shall in
turn utilize all of any such Restricted Payment to make Restricted
Payments to Holdings) and to Holdings to the extent necessary to enable
Holdings to pay interest on the Senior Subordinated Notes, so long as (i)
no Default or Event of Default exists or would result therefrom and (ii)
the Restricted Payments referred to below are permitted to be paid at such
time under the Senior Subordinated Note Indenture;
(d) notwithstanding the provisions of clause (a) above, the Borrower
shall be permitted to make Restricted Payments to Holdings and to DRI I
(which may in turn utilize all or part of any such Restricted Payment to
make Restricted Payments to Holdings), in each case to the extent
necessary to enable Holdings and DRI I
(i) to pay their overhead expenses to the extent permitted
under the Senior Subordinated Note Indenture as in effect on the
Closing Date; provided, that the aggregate amount of Restricted
Payments paid by the Borrower pursuant to this clause (d)(i) in any
Fiscal Year shall not exceed $2,000,000; and
(ii) to pay their respective taxes based on income and
franchise taxes and other similar licensure expenses; and
(iii) to defease and redeem the Holdings Subordinated Notes,
as contemplated by Section 7.1.9(a); and
(e) so long as (i) no Default or Event of Default shall have
occurred and be continuing on the date such Restricted Payment is declared
or to be made, nor would a Default or an Event of Default result from the
making of such Restricted Payment, (ii) after giving effect to the making
of such Restricted Payment, Holdings shall be in pro forma compliance with
the covenants set forth in Section 7.2.4 for the most recent fully ended
Fiscal Quarter preceding the date of the making of such Restricted Payment
for which the relevant financial information has been delivered pursuant
to clause (b) or (c) of Section 7.1.1, and (iii) an Authorized Officer of
Holdings shall have delivered a certificate to the Administrative Agent in
form and substance satisfactory to the Administrative Agent (including a
calculation of Holdings' compliance with the covenants set forth in
Section 7.2.4 in reasonable detail) certifying as to the accuracy of
subclauses (i) and (ii) above, the Borrower shall be permitted to make
Restricted
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Payments to Holdings and to DRI I (which shall in turn utilize all of any
such Restricted Payment to make Restricted Payments to Holdings), in each
case to the extent necessary to enable Holdings to repurchase, redeem or
otherwise acquire or retire for value any Capital Stock of Holdings held
by any member of management of Holdings or any of its Subsidiaries
pursuant to any management equity subscription agreement or stock option
agreement, in each case as in effect on the Closing Date; provided,
however, that (A) the aggregate price paid for all such repurchased,
redeemed, acquired or retired Capital Stock shall not exceed an amount
equal to $2,000,000 in any twelve month period plus (B) the aggregate cash
proceeds received by Holdings during such twelve month period from any
reissuance of Capital Stock of Holdings by Holdings to members of
management of Holdings or any of its Subsidiaries.
SECTION 7.2.7. Capital Expenditures, etc. Each of the Borrower and each
Parent Guarantor will not, and will not permit any of their respective
Subsidiaries to, make or commit to make Capital Expenditures in any Fiscal Year,
except Capital Expenditures of the Borrower and its Subsidiaries which do not
aggregate in excess of $30,000,000 in the 1998 Fiscal Year and $25,000,000 in
each Fiscal Year thereafter; provided, however, that, to the extent the amount
of Capital Expenditures permitted to be made in any Fiscal Year pursuant to this
Section exceeds the aggregate amount of Capital Expenditures actually made by
the Borrower and its Subsidiaries during such Fiscal Year, up to 50% of such
excess amount may be carried forward to (but only to) the next succeeding Fiscal
Year (any such amount to be certified by Holdings to the Agents in the
Compliance Certificate delivered for the last Fiscal Quarter of such Fiscal
Year), and any such amount carried forward to a succeeding Fiscal Year shall be
deemed to be used prior to the Borrower and its Subsidiaries using the amount of
Capital Expenditures permitted by this Section in such succeeding Fiscal Year,
without giving effect to such carry-forward; provided further, however, that the
Borrower and its Subsidiaries may make or commit to make additional Capital
Expenditures solely attributable to the Rock Bottom Acquisition in an aggregate
amount of $7,000,000 from the date hereof.
SECTION 7.2.8. Consolidation, Merger, etc. Each of the Borrower and each
Parent Guarantor will not, and will not permit any of their respective
Subsidiaries to, liquidate or dissolve, consolidate with, or merge into or with,
any other corporation, or purchase or otherwise acquire all or substantially all
of the assets of any Person (or of any division thereof) except
(a) any Subsidiary of the Borrower may liquidate or dissolve
voluntarily into, and may merge with and into, the Borrower (so long as
the Borrower is the surviving entity of such combination or merger) or any
other Subsidiary, and the assets or stock of any such Subsidiary may be
purchased or otherwise acquired by the Borrower or any other Subsidiary;
provided, that notwithstanding the above, a Subsidiary may only liquidate
or dissolve into, or merge with and into, another Subsidiary of the
Borrower if, after giving effect to such combination or merger, the
Borrower continues to own (directly or indirectly), and the Administrative
Agent continues to have pledged to it pursuant to a Pledge Agreement, a
percentage of the issued and outstanding shares of Capital Stock (on a
fully diluted basis) of the Subsidiary surviving such combination or
merger that is equal
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to or in excess of the percentage of the issued and outstanding shares of
Capital Stock (on a fully diluted basis) of the Subsidiary that does not
survive such combination or merger that was (immediately prior to the
combination or merger) owned by the Borrower or pledged to the
Administrative Agent;
(b) so long as no Default has occurred and is continuing or would
occur after giving effect thereto, the Borrower or any of its Subsidiaries
may purchase all or substantially all of the assets of any Person (or any
division thereof) not then a Subsidiary, or acquire such Person by merger,
if permitted (without duplication) pursuant to Section 7.2.7 or clause (i)
of Section 7.2.5; and
(c) so long as no Default has occurred and is continuing or would
occur after giving effect thereto, the Borrower or any of its Subsidiaries
may purchase all or substantially all of the assets of the Sellers
pursuant to the Asset Purchase Agreement.
SECTION 7.2.9. Asset Dispositions, etc. Each of the Borrower and each
Parent Guarantor will not, and will not permit any of their respective
Subsidiaries to, sell, transfer, lease, contribute or otherwise convey, or grant
options, warrants or other rights with respect to, all or any part of its
assets, whether now owned or hereafter acquired (including accounts receivable
and Capital Stock of Subsidiaries) to any Person, unless:
(a) such sale, transfer, lease, contribution or conveyance of such
assets is (i) in the ordinary course of its business (and does not
constitute a sale, transfer, lease, contribution or other conveyance of
all or a substantial part of the Borrower's and its Subsidiaries' assets,
taken as a whole) or is of obsolete or worn out property, (ii) permitted
by Section 7.2.8 or 7.2.14, or (iii) between the Borrower and one of its
Subsidiary Guarantors or between Subsidiary Guarantors of the Borrower;
(b) such sale, transfer, lease, contribution or conveyance consists
of the sale by the Borrower of third party prescription receivables
resulting from the sale of pharmaceutical products to customers covered by
third party insurance or payment programs (the "Prescription Receivables")
to Pharmacy Fund, in each case pursuant to, and in accordance with the
terms of the Rapid Remit Program Documents;
(c) such sale, transfer, lease, contribution or conveyance by (i)
the Borrower or any of its Subsidiaries constitutes (A) an Investment
permitted under Section 7.2.5 or (B) a Lien permitted under Section 7.2.3
or (ii) any Parent Guarantor constitutes an Investment permitted under
clause (b), (c) or (e) of Section 7.2.5; or
(d) (i) such sale, transfer, lease, contribution or conveyance by
the Borrower or any of its Subsidiaries of such assets is for fair market
value and the consideration consists of no less than 80% in cash (other
than assets sold, transferred, leased, contributed or conveyed in an
individual amount not to exceed $50,000 and in an aggregate amount not to
exceed $500,000 since the Closing Date), (ii) the Net Disposition Proceeds
received from such assets, together with the Net Disposition Proceeds of
all other assets sold, transferred, leased,
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contributed or conveyed pursuant to this clause (d) since the Closing
Date, does not exceed (individually or in the aggregate) $10,000,000 over
the term of this Agreement and (iii) an amount equal to the Net
Disposition Proceeds generated from such sale, transfer, lease,
contribution or conveyance is applied to prepay the Loans pursuant to the
terms of Sections 3.1.1 and 3.1.2.
SECTION 7.2.10. Modification of Certain Agreements. Without the prior
written consent of the Required Lenders, each of the Borrower and each Parent
Guarantor will not, and will not permit any of their respective Subsidiaries to,
consent to any amendment, supplement, amendment and restatement, waiver or other
modification of any of the terms or provisions contained in, or applicable to,
any Material Document or any schedules, exhibits or agreements related thereto,
in each case which does not comply with the requirements set forth in the
proviso to clause (l) of Section 7.2.2 or would adversely affect the rights or
remedies of the Lenders, or the Borrower's, such Parent Guarantor's or such
Subsidiary's ability to perform hereunder or under any Loan Document.
SECTION 7.2.11. Transactions with Affiliates. Each of the Borrower and
each Parent Guarantor will not, and will not permit any of their respective
Subsidiaries to, enter into, or cause, suffer or permit to exist any arrangement
or contract with any of its other Affiliates unless such arrangement or contract
is fair and equitable to the Borrower, such Parent Guarantor or such Subsidiary
and is an arrangement or contract of the kind which would be entered into by a
prudent Person in the position of the Borrower, such Parent Guarantor or such
Subsidiary with a Person which is not one of its Affiliates; provided, however
that the Borrower, the Parent Guarantors and their respective Subsidiaries shall
be permitted to enter into and perform their obligations under the Material
Documents to which each is a party as of the Closing Date and arrangements with
DLJ and its Affiliates for underwriting, investment banking and advisory
services on usual and customary terms.
SECTION 7.2.12. Negative Pledges, Restrictive Agreements, etc. Each of the
Borrower and each Parent Guarantor will not, and will not permit any of their
respective Subsidiaries to, enter into any agreement prohibiting
(a) the (i) creation or assumption of any Lien upon its properties,
revenues or assets, whether now owned or hereafter acquired (other than,
in the case of any assets acquired with the proceeds of any Indebtedness,
or subject to Capitalized Lease Liabilities, permitted under clause (e) of
Section 7.2.2, customary limitations and prohibitions contained in such
Indebtedness or Capitalized Lease), or (ii) ability of the Borrower, any
Parent Guarantor or any other Obligor to amend or otherwise modify this
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Agreement or any other Loan Document; or
(b) any Subsidiary from making any payments, directly or indirectly,
to the Borrower by way of dividends, advances, repayments of loans or
advances, reimbursements of management and other intercompany charges,
expenses and accruals or other returns on investments, or any other
agreement or arrangement which restricts the ability of any such
Subsidiary to make any payment, directly or indirectly, to the Borrower.
SECTION 7.2.13. Stock of Subsidiaries. Each of the Borrower and each
Parent Guarantor will not permit any Subsidiary of the Borrower to issue any
Capital Stock (whether for value or otherwise) to any Person other than the
Borrower or another Wholly-owned Subsidiary of the Borrower.
SECTION 7.2.14. Sale and Leaseback. Each of the Borrower and each Parent
Guarantor will not, and will not permit any of its Subsidiaries to, enter into
any agreement or arrangement with any other Person providing for the leasing by
the Borrower or any of its Subsidiaries of real or personal property which has
been or is to be sold or transferred by the Borrower or any of its Subsidiaries
to such other Person or to any other Person to whom funds have been or are to be
advanced by such Person on the security of such property or rental obligations
of the Borrower or any of its Subsidiaries (a "Sale and Leaseback Transaction");
provided, however, that the Borrower or any of its Subsidiaries may enter into
Sale and Leaseback Transactions so long as (a) each such Sale and Leaseback
Transaction is consummated no more than one year after the original date of
purchase of the Subject Property, (b) the Borrower or such Subsidiary receives
cash in an amount greater than or equal to the Valuation Amount of such Subject
Property concurrent with the sale thereof, (c) each lease entered into in
connection with each such Sale and Leaseback Transaction is a true operating
lease in accordance with GAAP, and (d) the proceeds of such sale under such Sale
and Leaseback Transaction are applied in accordance with the terms of clause (f)
of Section 3.1.1.
ARTICLE VIII
EVENTS OF DEFAULT
SECTION 8.1. Listing of Events of Default. Each of the following events or
occurrences described in this Section 8.1 shall constitute an "Event of
Default".
SECTION 8.1.1. Non-Payment of Obligations. (a) The Borrower shall default
in the payment or prepayment of any principal of any Loan when due or any
Reimbursement Obligations or any deposit of cash for collateral purposes
pursuant to Section 2.6.2 or Section 2.6.4, as the case may be, or (b) any
Obligor (including the Borrower) shall default (and
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such default shall continue unremedied for a period of three Business Days) in
the payment when due of any interest or commitment fee with respect to the Loans
or Commitments or of any other monetary Obligation.
SECTION 8.1.2. Breach of Warranty. Any representation or warranty of the
Borrower or any other Obligor made or deemed to be made by it hereunder or under
any other Loan Document or any other writing or certificate furnished by or on
behalf of the Borrower or any other Obligor to the Agents, the Documentation
Agent, the Issuer, the Arranger or any Lender for the purposes of or in
connection with this Agreement or any such other Loan Document (including any
certificates delivered pursuant to Article V) is or shall be incorrect when made
in any material respect.
SECTION 8.1.3. Non-Performance of Certain Covenants and Obligations. The
Borrower or any Parent Guarantor shall default in the due performance and
observance of any of its obligations under Section 7.1.4, 7.1.6(b), 7.1.9,
7.1.10, 7.1.11 or 7.2 (other than clause (a) of Section 7.2.1), or any other
Obligor shall default in the performance of any of its obligations in respect of
such Sections as such Sections are incorporated by reference or otherwise in any
Loan Document to which such Obligor is a party.
SECTION 8.1.4. Non-Performance of Other Covenants and Obligations. Any
Obligor shall default in the due performance and observance of any other
agreement contained herein or in any other Loan Document executed by it, and
such default shall continue unremedied for a period of 30 days from the earlier
of the date an Authorized Officer of such Obligor has actual knowledge thereof
and the receipt by such Obligor of written notice thereof from the
Administrative Agent.
SECTION 8.1.5. Default on Other Indebtedness. A default shall occur (i) in
the payment when due (subject to any applicable grace period), whether by
acceleration or otherwise, of any Indebtedness, other than Indebtedness
described in Section 8.1.1, of the Borrower or any of its Subsidiaries or any
other Obligor having a principal amount, individually or in the aggregate, in
excess of $3,000,000, or (ii) a default shall occur in the performance or
observance of any obligation or condition with respect to such Indebtedness if
the effect of such default is to accelerate the maturity of any such
Indebtedness or such default shall continue unremedied for any applicable period
of time sufficient to permit the holder or holders of such Indebtedness, or any
trustee or agent for such holders, to cause such Indebtedness to become due and
payable prior to its expressed maturity.
SECTION 8.1.6. Judgments. Any judgment or order for the payment of money
in excess of $3,000,000 (not covered by insurance from an insurance company
rated A- or better by A.M. Best Company that is not denying its liability with
respect thereto) shall be rendered against the Borrower or any of its
Subsidiaries or any other Obligor and remain unpaid and either (a) enforcement
proceedings shall have been commenced by any creditor upon such judgment or
order, or (b) there shall be any period of 30 consecutive days during which a
stay of enforcement
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of such judgment or order, by reason of a pending appeal or otherwise, shall not
be in effect.
SECTION 8.1.7. Pension Plans. Any of the following events shall occur with
respect to any Pension Plan (a) the institution of any steps by Holdings, any
member of its Controlled Group or any other Person to terminate a Pension Plan
if, as a result of such termination, Holdings or any such member could be
required to make a contribution to such Pension Plan, or could reasonably expect
to incur a liability or obligation to such Pension Plan, in excess of
$1,000,000, or (b) a contribution failure occurs with respect to any Pension
Plan sufficient to give rise to a Lien under section 302(f) of ERISA.
SECTION 8.1.8. Change in Control. Any Change in Control shall occur.
SECTION 8.1.9. Bankruptcy, Insolvency, etc. The Borrower or any of its
Subsidiaries or any other Obligor shall
(a) become insolvent or generally fail to pay, or admit in writing
its inability or unwillingness to pay, debts as they become due;
(b) apply for, consent to, or acquiesce in, the appointment of a
trustee, receiver, sequestrator or other custodian for the Borrower or any
of its Subsidiaries or any other Obligor or any property of any thereof,
or make a general assignment for the benefit of creditors;
(c) in the absence of such application, consent, acquiescence or
assignment, permit or suffer to exist the appointment of a trustee,
receiver, sequestrator or other custodian for the Borrower or any of its
Subsidiaries or any other Obligor or for a substantial part of the
property of any thereof, and such trustee, receiver, sequestrator or other
custodian shall not be discharged within 60 days, provided that the
Borrower, each Subsidiary and each other Obligor hereby expressly
authorizes the Agents, the Documentation Agent, the Arranger, the Issuer
and each Lender to appear in any court conducting any relevant proceeding
during such 60-day period to preserve, protect and defend their rights
under the Loan Documents;
(d) permit or suffer to exist the commencement of any bankruptcy,
reorganization, debt arrangement or other case or proceeding under any
bankruptcy or insolvency law, or any dissolution, winding up or
liquidation proceeding, in respect of the Borrower or any of its
Subsidiaries or any other Obligor, and, if any such case or proceeding is
not commenced by the Borrower or such Subsidiary or such other Obligor,
such case or proceeding shall be consented to or acquiesced in by the
Borrower or such Subsidiary or such other Obligor or shall result in the
entry of an order for relief or shall remain for 60 days undismissed,
provided that the Borrower, each Subsidiary and each other Obligor hereby
expressly authorizes the Agents, the Documentation Agent, the Arranger,
the Issuer and each Lender to appear in any court conducting any such case
or proceeding during such 60-day period to preserve, protect and defend
their rights under
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the Loan Documents; or
(e) take any action (partnership, corporate or otherwise)
authorizing, or in furtherance of, any of the foregoing.
SECTION 8.1.10. Impairment of Security, etc. Any Loan Document, or any
Lien granted thereunder, shall (except in accordance with its terms), in whole
or in part, terminate, cease to be in full force and effect or cease to be the
legally valid, binding and enforceable obligation of any Obligor party thereto;
the Borrower or any other Obligor shall, directly or indirectly, contest in any
manner the effectiveness, validity, binding nature or enforceability thereof; or
any Lien securing any Obligation shall, in whole or in part, cease to be a
perfected first priority Lien, subject only to those exceptions expressly
permitted by the Loan Documents.
SECTION 8.2. Action if Bankruptcy, etc. If any Event of Default described
in clauses (a) through (d) of Section 8.1.9 shall occur, the Commitments (if not
theretofore terminated) shall automatically terminate and the outstanding
principal amount of all outstanding Loans and all other Obligations (including
Reimbursement Obligations) shall automatically be and become immediately due and
payable, without notice or demand and the Borrower shall automatically and
immediately be obligated to deposit with the Administrative Agent cash
collateral in an amount equal to the undrawn amount of all Letters of Credit
outstanding.
SECTION 8.3. Action if Other Event of Default. If any Event of Default
(other than an Event of Default described in clauses (a), through (d) of Section
8.1.9) shall occur for any reason, whether voluntary or involuntary, and be
continuing, the Administrative Agent, upon the direction of the Required
Lenders, shall by notice to the Borrower declare all or any portion of the
outstanding principal amount of the Loans and other Obligations (including
Reimbursement Obligations) to be due and payable, require the Borrower to
provide cash collateral to be deposited with the Administrative Agent in an
amount equal to the undrawn amount of all Letters of Credit outstanding and/or
declare the Commitments (if not theretofore terminated) to be terminated,
whereupon the full unpaid amount of such Loans and other Obligations which shall
be so declared due and payable shall be and become immediately due and payable,
without further notice, demand or presentment, and/or, as the case may be, the
Commitments shall terminate and the Borrower shall deposit with the
Administrative Agent cash collateral in an amount equal to the undrawn amount of
all Letters of Credit outstanding.
ARTICLE IX
GUARANTY
SECTION 9.1. Guaranty. Each Parent Guarantor hereby jointly and severally,
absolutely, unconditionally and irrevocably
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(a) guarantees the full and punctual payment when due, whether at
stated maturity, by required prepayment, declaration, acceleration, demand
or otherwise, of all Obligations of the Borrower now or hereafter
existing, whether for principal, interest, fees, expenses or otherwise
(including all such amounts which would become due but for the operation
of the automatic stay under Section 362(a) of the United States Bankruptcy
Code, 11 U.S.C. ss.362(a), and the operation of Sections 502(b) and 506(b)
of the United States Bankruptcy Code, 11 U.S.C. ss.502(b) and ss.506(b)),
and
(b) indemnifies and holds harmless each Secured Party and each
holder of a Note for any and all costs and expenses (including reasonable
attorney's fees and expenses) incurred by such Secured Party or such
holder, as the case may be, in enforcing any rights under the guaranty set
forth in this Article IX.
The guaranty set forth in this Article IX constitutes a guaranty of payment when
due and not of collection, and each Parent Guarantor specifically agrees that it
shall not be necessary or required that any Secured Party or any holder of any
Note exercise any right, assert any claim or demand or enforce any remedy
whatsoever against the Borrower or any other Obligor (or any other Person)
before or as a condition to the obligations of each Parent Guarantor under the
guaranty set forth in this Article IX.
SECTION 9.2. Acceleration of Parent Guaranty. Each Parent Guarantor agrees
that upon the occurrence of an Event of Default of the nature set forth in
clauses (a) through (d) of Section 8.1.9, at a time when any of the Obligations
of the Borrower and each other Obligor may not then be due and payable, then
each Parent Guarantor agrees that it will pay to the Administrative Agent for
the account of the Secured Parties forthwith the full amount which would be
payable under the guaranty set forth in this Article IX by each Parent Guarantor
if all such Obligations were then due and payable.
SECTION 9.3. Guaranty Absolute, etc. The guaranty set forth in this
Article IX shall in all respects be a continuing, absolute, unconditional and
irrevocable guaranty of payment, and shall remain in full force and effect until
all Obligations of the Borrower and each other Obligor have been paid in full in
cash, all obligations of each Parent Guarantor under the guaranty set forth in
this Article IX shall have been paid in full in cash, all Letters of Credit have
been terminated or expired, all Rate Protection Agreements have been terminated
or expired and all Commitments shall have terminated. Each Parent Guarantor
guarantees that the Obligations of the Borrower will be paid strictly in
accordance with the terms of this Agreement and each other Loan Document under
which they arise, regardless of any law, regulation or order now or hereafter in
effect in any jurisdiction affecting any of such terms or the rights of any
Secured Party or any holder of any Note with respect thereto. The liability of
each Parent Guarantor under the guaranty set forth in this Article IX shall be
absolute, unconditional and irrevocable irrespective of:
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(a) any lack of validity, legality or enforceability of this
Agreement, any Note or any other Loan Document;
(b) the failure of any Secured Party or any holder of any Note
(i) to assert any claim or demand or to enforce any right or
remedy against the Borrower, any other Obligor or any other Person
(including any other guarantor (including any Parent Guarantor))
under the provisions of this Agreement, any Note, any other Loan
Document or otherwise, or
(ii) to exercise any right or remedy against any other
guarantor (including any Parent Guarantor) of, or collateral
securing, any Obligations of the Borrower;
(c) any change in the time, manner or place of payment of, or in any
other term of, all or any of the Obligations of the Borrower, or any other
extension, compromise or renewal of any Obligation of the Borrower;
(d) any reduction, limitation, impairment or termination of any
Obligations of the Borrower for any reason, including any claim of waiver,
release, surrender, alteration or compromise, and shall not be subject to
(and the each Parent Guarantor hereby waives any right to or claim of) any
defense or setoff, counterclaim, recoupment or termination whatsoever by
reason of the invalidity, illegality, nongenuineness, irregularity,
compromise, unenforceability of, or any other event or occurrence
affecting, any Obligations of the Borrower or otherwise;
(e) any amendment to, rescission, waiver, or other modification of,
or any consent to departure from, any of the terms of this Agreement, any
Note or any other Loan Document;
(f) any addition, exchange, release, surrender or non-perfection of
any collateral, or any amendment to or waiver or release or addition of,
or consent to departure from, any other guaranty, held by any Secured
Party or any holder of any Note securing any of the Obligations of the
Borrower; or
(g) any other circumstance which might otherwise constitute a
defense available to, or a legal or equitable discharge of, the Borrower,
any surety or any guarantor.
SECTION 9.4. Reinstatement, etc. Each Parent Guarantor agrees that the
guaranty set forth in this Article IX shall continue to be effective or be
reinstated, as the case may be, if at any time any payment (in whole or in part)
of any of the Obligations is rescinded or must otherwise be restored by any
Secured Party or any holder of any Note, upon the insolvency, bankruptcy or
reorganization of the Borrower or otherwise, all as though such payment had not
been made.
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SECTION 9.5. Waiver, etc. Each Parent Guarantor hereby waives promptness,
diligence, notice of acceptance and any other notice with respect to any of the
Obligations of the Borrower and the guaranty set forth in this Article IX and
any requirement that the Administrative Agent, any other Secured Party or any
holder of any Note protect, secure, perfect or insure any security interest or
Lien, or any property subject thereto, or exhaust any right or take any action
against the Borrower, any other Obligor or any other Person (including any other
guarantor) or entity or any collateral securing the Obligations of the Borrower.
SECTION 9.6. Postponement of Subrogation, etc. Each Parent Guarantor
agrees that it will not exercise any rights which it may acquire by way of
rights of subrogation under the guaranty set forth in this Article IX, by any
payment made under the guaranty set forth in this Article IX or otherwise, until
the prior payment in full in cash of all Obligations of the Borrower and each
other Obligor, the termination or expiration of all Letters of Credit, the
termination or expiration of all Rate Protection Agreements and the termination
of all Commitments. Any amount paid to any Parent Guarantor on account of any
such subrogation rights prior to the payment in full in cash of all Obligations
of the Borrower and each other Obligor shall be held in trust for the benefit of
the Secured Parties and each holder of a Note and shall immediately be paid to
the Administrative Agent for the benefit of the Secured Parties and each holder
of a Note and credited and applied against the Obligations of the Borrower and
each other Obligor, whether matured or unmatured, in accordance with the terms
of this Agreement; provided, however, that if
(a) each Guarantor has made payment to the Secured Parties and each
holder of a Note of all or any part of the Obligations of the Borrower,
and
(b) all Obligations of the Borrower and each other Obligor have been
paid in full in cash, all Letters of Credit have been terminated or
expired, all Rate Protection Agreements have been terminated or expired
and all Commitments have been permanently terminated,
each Secured Party and each holder of a Note agrees that, at any Parent
Guarantor's request, the Administrative Agent, on behalf of the Secured Parties
and the holders of the Notes, will execute and deliver to the applicable Parent
Guarantor appropriate documents (without recourse and without representation or
warranty) necessary to evidence the transfer by subrogation to such Parent
Guarantor of an interest in the Obligations of the Borrower resulting from such
payment by such Parent Guarantor. In furtherance of the foregoing, for so long
as any Obligations or Commitments remain outstanding, each Parent Guarantor
shall refrain from taking any action or commencing any proceeding against the
Borrower (or its successors or assigns, whether in connection with a bankruptcy
proceeding or otherwise) to recover any amounts in the respect of payments made
under the guaranty set forth in this Article IX to any Secured Party or any
holder of a Note.
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SECTION 9.7. Successors, Transferees and Assigns; Transfers of Notes, etc.
The guaranty set forth in this Article IX shall:
(a) be binding upon each Parent Guarantor and its successors,
transferees and assigns; and
(b) inure to the benefit of and be enforceable by the Administrative
Agent and each other Secured Party.
Without limiting the generality of the foregoing clause (b), any Lender may
assign or otherwise transfer (in whole or in part) any Note or Credit Extension
held by it to any other Person or entity, and such other Person or entity shall
thereupon become vested with all rights and benefits in respect thereof granted
to such Lender under any Loan Document (including the guaranty set forth in this
Article IX) or otherwise, subject, however, to any contrary provisions in such
assignment or transfer, and to the provisions of Section 11.11 and Article X.
ARTICLE X
THE AGENTS
SECTION 10.1. Actions. Each Lender hereby appoints DLJ as its Syndication
Agent and Fleet as its Administrative Agent under and for purposes of this
Agreement, the Notes and each other Loan Document. Each Lender authorizes the
Agents to act on behalf of such Lender under this Agreement, the Notes and each
other Loan Document and, in the absence of other written instructions from the
Required Lenders received from time to time by the Agents (with respect to which
each of the Agents agrees that it will comply, except as otherwise provided in
this Section or as otherwise advised by counsel), to exercise such powers
hereunder and thereunder as are specifically delegated to or required of the
Agents by the terms hereof and thereof, together with such powers as may be
reasonably incidental thereto. Each Lender hereby indemnifies (which indemnity
shall survive any termination of this Agreement) the Agents, ratably in
accordance with their respective Term Loans outstanding and Commitments (or, if
no Term Loans or Commitments are at the time outstanding and in effect, then
ratably in accordance with the principal amount of Term Loans held by such
Lender, and their respective Commitments as in effect in each case on the date
of the termination of this Agreement), from and against any and all liabilities,
obligations, losses, damages, claims, costs or expenses of any kind or nature
whatsoever which may at any time be imposed on, incurred by, or asserted
against, any of the Agents in any way relating to or arising out of this
Agreement, the Notes and any other Loan Document, including reasonable
attorneys' fees, and as to which any Agent is not reimbursed by the Borrower or
any other Obligor (and without limiting the obligation of the Borrower or any
other Obligor to do so); provided, however, that no Lender shall be liable for
the payment of any portion of such liabilities, obligations, losses, damages,
claims, costs or
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expenses which are determined by a court of competent jurisdiction in a final
proceeding to have resulted solely from such Agent's gross negligence or willful
misconduct. The Agents shall not be required to take any action hereunder, under
the Notes or under any other Loan Document, or to prosecute or defend any suit
in respect of this Agreement, the Notes or any other Loan Document, unless it is
indemnified hereunder to its satisfaction. If any indemnity in favor of any of
the Agents shall be or become, in such Agent's determination, inadequate, such
Agent may call for additional indemnification from the Lenders and cease to do
the acts indemnified against hereunder until such additional indemnity is given.
SECTION 10.2. Funding Reliance, etc. Unless the Administrative Agent shall
have been notified by telephone, confirmed in writing, by any Lender by 5:00
p.m., New York City time, on the day prior to a Borrowing that such Lender will
not make available the amount which would constitute its Percentage of such
Borrowing on the date specified therefor, the Administrative Agent may assume
that such Lender has made such amount available to the Administrative Agent and,
in reliance upon such assumption, make available to the Borrower a corresponding
amount. If and to the extent that such Lender shall not have made such amount
available to the Administrative Agent, such Lender severally agrees and the
Borrower agrees to repay the Administrative Agent forthwith on demand such
corresponding amount together with interest thereon, for each day from the date
the Administrative Agent made such amount available to the Borrower to the date
such amount is repaid to the Administrative Agent, at the interest rate
applicable at the time to Loans comprising such Borrowing.
SECTION 10.3. Exculpation. None of the Agents, the Swing Line Lender, the
Issuer or the Arranger nor any of their respective directors, officers,
employees or agents shall be liable to any Lender for any action taken or
omitted to be taken by it under this Agreement or any other Loan Document, or in
connection herewith or therewith, except for its own willful misconduct or gross
negligence, nor responsible for any recitals or warranties herein or therein,
nor for the effectiveness, enforceability, validity or due execution of this
Agreement or any other Loan Document, nor for the creation, perfection or
priority of any Liens purported to be created by any of the Loan Documents, or
the validity, genuineness, enforceability, existence, value or sufficiency of
any collateral security, nor to make any inquiry respecting the performance by
the Borrower of its obligations hereunder or under any other Loan Document. Any
such inquiry which may be made by any Agent, the Swing Line Lender or the Issuer
shall not obligate it to make any further inquiry or to take any action. The
Agents, the Swing Line Lender and the Issuer shall be entitled to rely upon
advice of counsel concerning legal matters and upon any notice, consent,
certificate, statement or writing which the Agents, the Swing Line Lender or the
Issuer, as applicable, believe to be genuine and to have been presented by a
proper Person.
SECTION 10.4. Successor. The Syndication Agent may resign as such upon one
Business Day's notice to the Borrower and the Administrative Agent. The
Administrative Agent may resign as such at any time upon at least 30 days' prior
notice to the Borrower and all Lenders. If the Administrative Agent at any time
shall resign, the Required Lenders may, with
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the prior consent of the Borrower (which consent shall not be unreasonably
withheld), appoint another Lender as a successor Administrative Agent which
shall thereupon become the Administrative Agent hereunder. If no successor
Administrative Agent shall have been so appointed by the Required Lenders, and
shall have accepted such appointment, within 30 days after the retiring
Administrative Agent's giving notice of resignation, then the retiring
Administrative Agent may, on behalf of the Lenders, appoint a successor
Administrative Agent, which shall be one of the Lenders or a commercial banking
institution organized under the laws of the United States or a United States
branch or agency of a commercial banking institution, and having a combined
capital and surplus of at least $500,000,000. Upon the acceptance of any
appointment as Administrative Agent hereunder by a successor Administrative
Agent, such successor Administrative Agent shall be entitled to receive from the
retiring Administrative Agent such documents of transfer and assignment as such
successor Administrative Agent may reasonably request, and shall thereupon
succeed to and become vested with all rights, powers, privileges and duties of
the retiring Administrative Agent, and the retiring Administrative Agent shall
be discharged from its duties and obligations under this Agreement. After any
retiring Administrative Agent's resignation hereunder as the Administrative
Agent, the provisions of (i) this Article X shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was the Administrative Agent
under this Agreement, and (ii) Section 11.3 and Section 11.4 shall continue to
inure to its benefit.
SECTION 10.5. Credit Extensions by each Agent. Each Agent, the Swing Line
Lender and the Issuer shall have the same rights and powers with respect to (x)
(i) in the case of the Agents and the Swing Line Lender, the Credit Extensions
made by it or any of its Affiliates and (ii) in the case of the Issuer, the
Loans made by it or any of its Affiliates, and (y) the Notes held by such Agent,
the Swing Line Lender, the Issuer or any of their respective Affiliates as any
other Lender and may exercise the same as if it were not an Agent or the Issuer.
Each Agent, the Swing Line Lender, the Issuer and each and their respective
Affiliates may accept deposits from, lend money to, and generally engage in any
kind of business with the Borrower or any Subsidiary or Affiliate of the
Borrower as if such Agent, the Swing Line Lender or Issuer were not an Agent,
the Swing Line Lender or the Issuer hereunder.
SECTION 10.6. Credit Decisions. Each Lender acknowledges that it has,
independently of each Agent, the Documentation Agent, the Arranger, the Swing
Line Lender, the Issuer and each other Lender, and based on such Lender's review
of the financial information of the Borrower, this Agreement, the other Loan
Documents (the terms and provisions of which being satisfactory to such Lender)
and such other documents, information and investigations as such Lender has
deemed appropriate, made its own credit decision to extend its Commitments. Each
Lender also acknowledges that it will, independently of each Agent, the
Documentation Agent, the Arranger, the Swing Line Lender, the Issuer and each
other Lender, and based on such other documents, information and investigations
as it shall deem appropriate at any time, continue to make its own credit
decisions as to exercising or not exercising from time to time any rights and
privileges available to it under this Agreement or any other Loan Document.
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SECTION 10.7. Copies, etc. The Administrative Agent shall give prompt
notice to each Lender and the Issuer of each notice or request required or
permitted to be given to the Administrative Agent by the Borrower pursuant to
the terms of this Agreement (unless concurrently delivered to the Lenders and
the Issuer by the Borrower). The Administrative Agent will distribute to each
Lender and the Issuer each document or instrument received for such Lender's or
the Issuers's account and copies of all other communications received by the
Administrative Agent from the Borrower for distribution to the Lenders and/or
the Issuer by the Administrative Agent in accordance with the terms of this
Agreement.
SECTION 10.8. The Swing Line Lender, the Issuer, the Documentation Agent,
the Syndication Agent and the Administrative Agent. Notwithstanding anything
else to the contrary contained in this Agreement or any other Loan Document, the
Swing Line Lender, the Issuer, the Documentation Agent and the Agents, in their
respective capacities as such, each in such capacity, shall have no duties or
responsibilities under this Agreement or any other Loan Document nor any
fiduciary relationship with any Lender, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or otherwise exist against the Swing Line Lender, the Issuer, the
Documentation Agent or any Agent, as applicable, in such capacity except as are
explicitly set forth herein or in the other Loan Documents.
ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION 11.1. Waivers, Amendments, etc. The provisions of this Agreement
and of each other Loan Document may from time to time be amended, modified or
waived, if such amendment, modification or waiver is in writing and consented to
by the Borrower and each Obligor party thereto and by the Required Lenders;
provided, however, that no such amendment, modification or waiver which would:
(a) modify any requirement hereunder that any particular action be
taken by all the Lenders or by the Required Lenders shall be effective
unless consented to by each Lender;
(b) modify this Section 11.1, or clause (a) of Section 11.10, change
the definition of "Required Lenders", increase any Commitment Amount or
the Percentage of any Lender, reduce, or extend the due date for, any fees
described in Section 3.3 (other than any fee referred to in Section
3.3.2), release any Guarantor from its obligations under any Guaranty, or
release all or substantially all of the collateral security (except in
each case as otherwise specifically provided in this Agreement, any such
Guaranty, a Security
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Agreement or a Pledge Agreement) or extend any Commitment Termination Date
shall be made without the consent of each Lender adversely affected
thereby;
(c) extend the due date for, or reduce the amount of, (i) any
scheduled repayment or prepayment of principal of or interest on any Loan
(or reduce the principal amount of or rate of interest on any Loan) or
(ii) any repayment of any Reimbursement Obligation (or reduce the amount
of or rate of interest on any Reimbursement Obligation) shall be made
without the consent of the holder of the Note evidencing such Loan or, in
the case of a Reimbursement Obligation, the Issuer owed, and those Lenders
participating in, such Reimbursement Obligation;
(d) affect adversely the interests, rights or obligations of any
Agent, the Swing Line Lender, the Issuer or the Arranger (in its capacity
as Agent, the Swing Line Lender, the Issuer or the Arranger), unless
consented to by such Agent, the Swing Line Lender, the Issuer or the
Arranger, as the case may be; or
(e) have the effect (either immediately or at some later time) of
enabling the Borrower to satisfy a condition precedent to the making of a
Revolving Loan, the Swing Line Loan or the issuance of a Letter of Credit
without the consent of Lenders holding at least 51% of the Revolving Loan
Commitments; or
(f) amend, modify or waive the provisions of clause (a)(i) of
Section 3.1.1 or clause (b) of Section 3.1.2 or effect any amendment,
modification or waiver that by its terms adversely affects the Lenders
participating in any Tranche differently from those of Lenders
participating in other Tranches, without the consent of the holders of the
Notes evidencing greater than 50% of the aggregate amount of Loans
outstanding under each Tranche affected by such modification, or, in the
case of a modification affecting the Revolving Loan Commitment Amount, the
Lenders holding greater than 50% of the Revolving Loan Commitments.
No failure or delay on the part of any Agent, the Issuer, any Lender or the
holder of any Note in exercising any power or right under this Agreement or any
other Loan Document shall operate as a waiver thereof, nor shall any single or
partial exercise of any such power or right preclude any other or further
exercise thereof or the exercise of any other power or right. No notice to or
demand on the Borrower in any case shall entitle it to any notice or demand in
similar or other circumstances. No waiver or approval by any Agent, the Issuer,
any Lender or the holder of any Note under this Agreement or any other Loan
Document shall, except as may be otherwise stated in such waiver or approval, be
applicable to subsequent transactions. No waiver or approval hereunder shall
require any similar or dissimilar waiver or approval thereafter to be granted
hereunder.
SECTION 11.2. Notices. All notices and other communications provided to
any party hereto under this Agreement or any other Loan Document shall be in
writing or by facsimile and
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addressed, delivered or transmitted to such party at its address or facsimile
number set forth on its signature page hereto or on Schedule II hereto or, in
the case of a Lender that becomes a party hereto after the date hereof, as set
forth in the Lender Assignment Agreement pursuant to which such Lender becomes a
Lender hereunder or at such other address or facsimile number as may be
designated by such party in a notice to the other parties. Any notice, if mailed
and properly addressed with postage prepaid or if properly addressed and sent by
pre-paid courier service, shall be deemed given when received; any notice, if
transmitted by facsimile, shall be deemed given when transmitted (and electronic
confirmation of receipt thereof has been received).
SECTION 11.3. Payment of Costs and Expenses. The Borrower agrees to pay on
demand all reasonable expenses of each of the Agents and the Arranger (including
the reasonable fees and out-of-pocket expenses of counsel to the Agents and the
Arranger and of local or foreign counsel, if any, who may be retained by counsel
to the Agents) in connection with
(a) the syndication by the Syndication Agent and the Arranger of the
Loans, the negotiation, preparation, execution and delivery of this
Agreement and of each other Loan Document, including schedules and
exhibits, and any amendments, waivers, consents, supplements or other
modifications to this Agreement or any other Loan Document as may from
time to time hereafter be required, whether or not the transactions
contemplated hereby are consummated;
(b) the filing, recording, refiling or rerecording of each Pledge
Agreement and each Security Agreement and/or any Uniform Commercial Code
financing statements relating thereto and all amendments, supplements and
modifications to any thereof and any and all other documents or
instruments of further assurance required to be filed or recorded or
refiled or rerecorded by the terms hereof or of such Pledge Agreement,
Security Agreement or Uniform Commercial Code financial statements; and
(c) the preparation and review of the form of any document or
instrument relevant to this Agreement or any other Loan Document.
The Borrower further agrees to pay, and to save the Agents, the Documentation
Agent, the Arranger, the Issuer and the Lenders harmless from all liability for,
any stamp or other similar taxes which may be payable in connection with the
execution or delivery of this Agreement, the Credit Extensions made hereunder or
the issuance of the Notes or Letters of Credit or any other Loan Documents. The
Borrower also agrees to reimburse each Agent, the Documentation Agent, the
Arranger, the Issuer and each Lender upon demand for all reasonable
out-of-pocket expenses (including reasonable attorneys' fees and legal expenses)
incurred by such Agent, the Documentation Agent, the Arranger, the Issuer or
such Lender in connection with (x) the negotiation of any restructuring or
"work-out", whether or not consummated, of any Obligations and (y) the
enforcement of any Obligations.
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SECTION 11.4. Indemnification. In consideration of the execution and
delivery of this Agreement by each Lender and the extension of the Commitments,
the Borrower hereby, to the fullest extent permitted under applicable law,
indemnifies, exonerates and holds each Agent, the Documentation Agent, the
Arranger, the Issuer, and each Lender and each of their respective Affiliates,
and each of their respective partners, officers, directors, trustees, employees
and agents, and each other Person controlling any of the foregoing within the
meaning of either Section 15 of the Securities Act of 1933, as amended, or
Section 20 of the Securities Exchange Act of 1934, as amended (collectively, the
"Indemnified Parties"), free and harmless from and against any and all actions,
causes of action, suits, losses, costs, liabilities and damages, and expenses
actually incurred in connection therewith (irrespective of whether any such
Indemnified Party is a party to the action for which indemnification hereunder
is sought), including reasonable attorneys' fees and disbursements
(collectively, the "Indemnified Liabilities"), incurred by the Indemnified
Parties or any of them as a result of, or arising out of, or relating to
(a) any transaction financed or to be financed in whole or in part,
directly or indirectly, with the proceeds of any Credit Extension;
(b) the entering into and performance of this Agreement and any
other Loan Document by any of the Indemnified Parties (including any
action brought by or on behalf of the Borrower as the result of any
determination by any Lender to make any Credit Extension hereunder);
(c) any investigation, litigation or proceeding related to any
acquisition or proposed acquisition by the Borrower or any of its
Subsidiaries of all or any portion of the stock or assets of any Person,
whether or not such Agent, the Documentation Agent, the Issuer, the
Arranger or such Lender is party thereto;
(d) any investigation, litigation or proceeding related to any
environmental cleanup, audit, compliance or other matter relating to the
Borrower's or any of its Subsidiaries' compliance with or liability under
Environmental Law or the Release by the Borrower or any of its
Subsidiaries of any Hazardous Material; or
(e) the presence on or under, or the escape, seepage, leakage,
spillage, discharge, emission or release from, any real property owned or
operated by the Borrower or any Subsidiary thereof of any Hazardous
Material present on or under such property in a manner giving rise to
liability at or prior to the time the Borrower or such Subsidiary owned or
operated such property (including any losses, liabilities, damages,
injuries, costs, expenses or claims asserted or arising under any
Environmental Law), regardless of whether caused by, or within the control
of, the Borrower or such Subsidiary,
except for any such Indemnified Liabilities arising for the account of a
particular Indemnified Party by reason of the relevant Indemnified Party's gross
negligence or willful misconduct. The
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Borrower and its permitted successors and assigns hereby waive, release and
agree not to make any claim, or bring any cost recovery action against, any
Agent, the Documentation Agent, the Issuer, the Arranger or any Lender under
CERCLA or any state equivalent, or any similar law now existing or hereafter
enacted, except to the extent arising out of the gross negligence or willful
misconduct of any Indemnified Party. It is expressly understood and agreed that
to the extent that any of such Persons is strictly liable under any
Environmental Laws, the Borrower's obligation to such Person under this
indemnity shall likewise be without regard to fault on the part of the Borrower,
to the extent permitted under applicable law, with respect to the violation or
condition which results in liability of such Person. If and to the extent that
the foregoing undertaking may be unenforceable for any reason, the Borrower
hereby agrees to make the maximum contribution to the payment and satisfaction
of each of the Indemnified Liabilities which is permissible under applicable
law.
SECTION 11.5. Survival. The obligations of the Borrower under Sections
2.6.7(a)(ii), 4.3, 4.4, 4.5, 4.6, 11.3 and 11.4, the obligations of each Parent
Guarantor under Section 9.1(b) and the obligations of the Lenders under Sections
4.8 and 10.1, shall in each case survive any assignment or participation
pursuant to Section 11.11, any termination of this Agreement, the payment in
full of all Obligations and the termination of all Commitments. The
representations and warranties made by the Borrower and each other Obligor in
this Agreement and in each other Loan Document shall survive the execution and
delivery of this Agreement and each such other Loan Document.
SECTION 11.6. Severability. Any provision of this Agreement or any other
Loan Document which is prohibited or unenforceable in any jurisdiction shall, as
to such provision and such jurisdiction, be ineffective to the extent of such
prohibition or unenforceability without invalidating the remaining provisions of
this Agreement or such Loan Document or affecting the validity or enforceability
of such provision in any other jurisdiction.
SECTION 11.7. Headings. The various headings of this Agreement and of each
other Loan Document are inserted for convenience only and shall not affect the
meaning or interpretation of this Agreement or such other Loan Document or any
provisions hereof or thereof.
SECTION 11.8. Execution in Counterparts, Effectiveness, etc. This
Agreement may be executed by the parties hereto in several counterparts, each of
which shall be deemed to be an original and all of which shall constitute
together but one and the same agreement.
SECTION 11.9. Governing Law; Entire Agreement. THIS AGREEMENT, THE NOTES
AND, EXCEPT TO THE EXTENT OTHERWISE EXPRESSLY PROVIDED THEREIN, EACH OTHER LOAN
DOCUMENT SHALL EACH BE DEEMED TO BE A CONTRACT MADE UNDER AND GOVERNED BY THE
INTERNAL LAWS OF THE STATE OF NEW YORK. This Agreement, the Notes and the other
Loan Documents
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constitute the entire understanding among the parties hereto with respect to the
subject matter hereof and supersede any prior agreements, written or oral, with
respect thereto.
SECTION 11.10. Successors and Assigns. This Agreement shall be binding
upon and shall inure to the benefit of the parties hereto and their respective
successors and assigns; provided, however, that (a) the Borrower may not assign
or transfer its rights or obligations hereunder without the prior written
consent of each of the Agents and all Lenders, and (b) the rights of sale,
assignment and transfer of the Lenders are subject to Section 11.11.
SECTION 11.11. Sale and Transfer of Loans and Notes; Participations in
Loans and Notes. Each Lender may assign, or sell participations in, its Loans
and Commitments to one or more other Persons, on a non pro rata basis (except as
provided below), in accordance with this Section 11.11.
SECTION 11.11.1. Assignments. Any Lender (the "Assignor Lender"),
(a) with the written consents of the Borrower, the Agents and (in
the case of any assignment of participations in Letters of Credit or
Revolving Loan Commitments) the Issuer (which consents shall not be
unreasonably delayed or withheld and which consents of the Agents and the
Issuer shall not be required in the case of assignments made by or to DLJ
or any of its Affiliates and which consent of the Borrower shall not be
required if a Default or an Event of Default shall have occurred and be
continuing), may at any time assign and delegate to one or more commercial
banks or other financial institutions or funds which are regularly engaged
in making, purchasing or investing in loans or securities, and
(b) with notice to the Borrower, the Agents, and (in the case of any
assignment of participations in Letters of Credit or Revolving Loan
Commitments) the Issuer, but without the consent of the Borrower, the
Agents or the Issuer, may assign and delegate to any of its Affiliates or
Related Funds or to any other Lender
(each Person described in either of the foregoing clauses as being the Person to
whom such assignment and delegation is to be made, being hereinafter referred to
as an "Assignee Lender"), all or any fraction of such Lender's total Loans,
participations in Letters of Credit and Letter of Credit Outstandings with
respect thereto and Commitments (which assignment and delegation shall be, as
among Revolving Loan Commitments, Revolving Loans and participations in Letters
of Credit, of a constant, and not a varying, percentage) (the "Assigned Amount")
in a minimum aggregate amount of (i) $1,000,000 in the case of an assignment to
an existing Lender or an Affiliate or Related Fund thereof and $5,000,000 in the
case of an assignment to an Assignee Lender that is not an existing Lender or an
Affiliate or Related Fund thereof or (ii) the then remaining amount of such
Lender's Loans and Commitments; provided, however, that any such Assignee Lender
will comply, if applicable, with the provisions contained in Section 4.6 and the
Borrower, each other Obligor, the Agents and the Issuer shall be entitled to
continue to deal
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<PAGE>
solely and directly with such Assignor Lender in connection with the interests
so assigned and delegated to an Assignee Lender until
(c) written notice of such assignment and delegation, together with
payment instructions, addresses and related information with respect to
such Assignee Lender, shall have been given to the Borrower and the Agents
by such Assignor Lender and such Assignee Lender;
(d) such Assignee Lender shall have executed and delivered to the
Borrower and the Agents a Lender Assignment Agreement, accepted by the
Agents;
(e) the processing fees described below shall have been paid; and
(f) the Administrative Agent shall have registered such assignment
and delegation in the Register pursuant to clause (b) of Section 2.7.
From and after the date that the Agents accept such Lender Assignment Agreement
and such assignment and delegation is registered in the Register pursuant to
clause (b) of Section 2.7, (i) the Assignee Lender thereunder shall be deemed
automatically to have become a party hereto and to the extent that rights and
obligations hereunder have been assigned and delegated to such Assignee Lender
in connection with such Lender Assignment Agreement, shall have the rights and
obligations of a Lender hereunder and under the other Loan Documents, and (ii)
the Assignor Lender, to the extent that rights and obligations hereunder have
been assigned and delegated by it in connection with such Lender Assignment
Agreement, shall be released from its obligations hereunder and under the other
Loan Documents. Subject to the provisions of Section 2.7, within ten Business
Days after its receipt of notice that the Agent has received an executed Lender
Assignment Agreement, the Borrower shall execute and deliver to the
Administrative Agent (for delivery to the relevant Assignee Lender) new Notes
evidencing such Assignee Lender's assigned Loans and Commitments and, if the
Assignor Lender has retained Loans and Commitments hereunder, replacement Notes
in the principal amount of the Loans and Commitments retained by the Assignor
Lender hereunder (such Notes to be in exchange for, but not in payment of, those
Notes then held by such Assignor Lender). Each such Note requested shall be
dated the date of the predecessor Notes, if any. The Assignor Lender shall mark
such predecessor Notes "exchanged" and deliver them to the Borrower. Unless
otherwise specified in the Lender Assignment Agreement, interest and fees in
respect of the Assigned Amount that (A) have accrued prior to the date of such
assignment shall be for the account of the Assignor Lender and (B) accrue on and
subsequent to the date of such assignment shall be for the account of the
Assignee Lender. Accrued interest and fees shall be paid at the same time or
times provided in this Agreement. Such Assignor Lender or such Assignee Lender
(unless the Assignor Lender or the Assignee Lender is DLJ or any of its
Affiliates) must also pay a processing fee to the Administrative Agent upon
delivery of any Lender Assignment Agreement in the amount of $3,500, unless such
assignment and delegation is by a Lender to its Affiliate or
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<PAGE>
Related Fund or if such assignment and delegation consists of a pledge by a
Lender to a Federal Reserve Bank (or in the case of a Lender that is an
investment fund, to the trustee under the indenture to which such fund is a
party), as provided below or is otherwise consented to by the Administrative
Agent. Any attempted assignment and delegation not made in accordance with this
Section 11.11.1 shall be null and void. Nothing contained in this Section
11.11.1 shall prevent or prohibit any Lender from pledging its rights (but not
its obligations to make Loans or participate in Letters of Credit or Letter of
Credit Outstandings) under this Agreement and/or its Loans and/or its Notes
hereunder (i) to a Federal Reserve Bank in support of borrowings made by such
Lender from such Federal Reserve Bank, or (ii) in the case of a Lender that is
an investment fund, to the trustee under the indenture to which such fund is a
party in support of its obligations to such trustee, in either case without
notice to or consent of the Borrower or the Agents; provided, however, that (A)
such Lender shall remain a "Lender" under this Agreement and shall continue to
be bound by the terms and conditions set forth in this Agreement and the other
Loan Documents, and (B) any assignment by such trustee shall be subject to the
provisions of clause (a) of this Section 11.11.1. In the event that S&P, Moody's
or Thompson's BankWatch (or InsuranceWatch Ratings Service, in the case of
Lenders that are insurance companies (or Best's Insurance Reports, if such
insurance company is not rated by Insurance Watch Ratings Service)) shall, after
the date that any Lender with a Commitment to make Revolving Loans or
participate in Letters of Credit becomes a Lender, downgrade the long-term
certificate of deposit rating or long-term senior unsecured debt rating of such
Lender, and the resulting rating shall be below BBB-, Baa3 or C (or BB, in the
case of Lender that is an insurance company (or B, in the case of an insurance
company not rated by InsuranceWatch Ratings Service)) respectively, then the
Issuer or the Borrower (with the consent of the Agents and the Issuer) shall
have the right, but not the obligation, upon notice to such Lender and the
Agents, to replace such Lender with an Assignee Lender in accordance with and
subject to the restrictions contained in this Section, and such Lender hereby
agrees to transfer and assign without recourse (in accordance with and subject
to the restrictions contained in this Section) all its interests, rights and
obligations in respect of its Revolving Loan Commitment under this Agreement to
such Assignee Lender; provided, however, that (i) no such assignment shall
conflict with any law, rule and regulation or order of any governmental
authority and (ii) such Assignee Lender shall pay to such Lender in immediately
available funds on the date of such assignment the principal of and interest and
fees (if any) accrued to the date of payment on the Loans made, and Letters of
Credit participated in, by such Lender hereunder and (iii) the Borrower shall
have paid such Lender all other amounts accrued for such Lender's account or
owed to it hereunder or under any other Loan Document.
SECTION 11.11.2. Participations. Any Lender may at any time sell to one or
more commercial banks or other financial institution (each such commercial bank
and other financial institution being herein called a "Participant")
participating interests in any of the Loans, Commitments, participations in
Letters of Credit and Letters of Credit Outstandings or other interests of such
Lender hereunder; provided, however, that
(a) no participation contemplated in this Section shall relieve such
Lender from
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<PAGE>
its Commitments or its other obligations hereunder or under any other Loan
Document;
(b) such Lender shall remain solely responsible for the performance
of its Commitments and such other obligations;
(c) the Borrower and each other Obligor, the Agents and the Issuer
shall continue to deal solely and directly with such Lender in connection
with such Lender's rights and obligations under this Agreement and each of
the other Loan Documents;
(d) no Participant, unless such Participant is an Affiliate or
Related Fund of such Lender, or is itself a Lender, shall be entitled to
require such Lender to take or refrain from taking any action hereunder or
under any other Loan Document, except that such Lender may agree with any
Participant that such Lender will not, without such Participant's consent,
agree to (i) any reduction in the interest rate or amount of fees that
such Participant is otherwise entitled to, (ii) a decrease in the
principal amount, or an extension of the final Stated Maturity Date, of
any Loan in which such Participant has purchased a participating interest
or (iii) a release of all or substantially all of the collateral security
under the Loan Documents or any Guarantor under any Guaranty, in each case
except as otherwise specifically provided in a Loan Document; and
(e) the Borrower shall not be required to pay any amount under
Sections 4.3, 4.4, 4.5, 4.6, 11.3 and 11.4 that is greater than the amount
which it would have been required to pay had no participating interest
been sold.
The Borrower acknowledges and agrees, subject to clause (e) above, that, to the
fullest extent permitted under applicable law, each Participant, for purposes of
Sections 4.3, 4.4, 4.5, 4.6, 4.8, 4.9, 11.3 and 11.4, shall be considered a
Lender.
SECTION 11.12. Other Transactions. Nothing contained herein shall preclude
any Agent, the Documentation Agent, the Issuer, the Arranger or any other Lender
from engaging in any transaction, in addition to those contemplated by this
Agreement or any other Loan Document, with the Borrower or any of its Affiliates
in which the Borrower or such Affiliate is not restricted hereby from engaging
with any other Person.
SECTION 11.13. Independence of Covenants. All covenants contained in this
Agreement and each other Loan Document shall be given independent effect such
that, in the event a particular action or condition is not permitted by any of
such covenants, the fact that it would be permitted by an exception to, or be
otherwise within the limitations of, another covenant shall not, unless
expressly so provided in such first covenant, avoid the occurrence of a Default
or an Event of Default if such action is taken or such condition exists.
SECTION 11.14. Confidentiality. The Agents, the Documentation Agent, the
Issuer, the
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<PAGE>
Arranger and the Lenders shall hold all non-public information obtained pursuant
to or in connection with this Agreement or obtained by them based on a review of
the books and records of Holdings or any of its Subsidiaries in accordance with
their customary procedures for handling confidential information of this nature,
but may make disclosure to any of their examiners, regulators (including the
National Association of Insurance Commissioners), Affiliates, outside auditors,
counsel and other professional advisors in connection with this Agreement or as
reasonably required by any potential bona fide transferee, participant or
assignee, or in connection with the exercise of remedies under a Loan Document,
or as requested by any governmental agency or representative thereof or pursuant
to legal process; provided, however, that
(a) unless specifically prohibited by applicable law or court order,
each Agent, the Documentation Agent, the Issuer, the Arranger and each
Lender shall promptly notify the Borrower of any request by any
governmental agency or representative thereof (other than any such request
in connection with an examination of the financial condition of such
Agent, the Documentation Agent, the Issuer, Arranger and Lender by such
governmental agency) for disclosure of any such non-public information
and, where practicable, prior to disclosure of such information;
(b) prior to any such disclosure pursuant to this Section 11.14,
each Agent, the Documentation Agent, the Issuer, the Arranger and each
Lender shall require any such bona fide transferee, participant and
assignee receiving a disclosure of non-public information to agree, for
the benefit of Holdings and its Subsidiaries, in writing
(i) to be bound by this Section 11.14; and
(ii) to require such Person to require any other Person to
whom such Person discloses such non-public information to be
similarly bound by this Section 11.14;
(c) disclosure may, with the consent of the Agents and the Borrower,
be made by any Lender to any direct or indirect contractual counterparties
of such Lender in swap agreements or such contractual counterparties'
professional advisors; provided that such contractual counterparty or
professional advisor agrees in writing to keep such information
confidential to the same extent required of the Lenders hereunder; and
(d) except as may be required by an order of a court of competent
jurisdiction and to the extent set forth therein, no Lender shall be
obligated or required to return any materials furnished by the Borrower or
any Subsidiary.
SECTION 11.15. Forum Selection and Consent to Jurisdiction. ANY LITIGATION
BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH,
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<PAGE>
THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF
DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF THE AGENTS, THE
DOCUMENTATION AGENT, THE ARRANGER, THE LENDERS, THE ISSUER, THE BORROWER OR ANY
PARENT GUARANTOR RELATING THERETO SHALL BE BROUGHT AND MAINTAINED EXCLUSIVELY
(TO THE EXTENT PERMITTED UNDER APPLICABLE LAW) IN THE COURTS OF THE STATE OF NEW
YORK, OR IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW
YORK, IN EACH CASE LOCATED IN NEW YORK COUNTY OF THE STATE OF NEW YORK;
PROVIDED, HOWEVER, THAT ANY SUIT SEEKING ENFORCEMENT AGAINST ANY COLLATERAL OR
OTHER PROPERTY MAY BE BROUGHT, AT THE AGENTS' OPTION, IN THE COURTS OF ANY
JURISDICTION WHERE SUCH COLLATERAL OR OTHER PROPERTY MAY BE FOUND. THE BORROWER
AND EACH PARENT GUARANTOR HEREBY EXPRESSLY AND IRREVOCABLY SUBMIT TO THE
JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK, AND OF THE UNITED STATES
DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, IN EACH CASE LOCATED IN
NEW YORK COUNTY OF THE STATE OF NEW YORK, FOR THE PURPOSE OF ANY SUCH LITIGATION
AS SET FORTH ABOVE AND IRREVOCABLY AGREES TO BE BOUND BY ANY JUDGMENT RENDERED
THEREBY IN CONNECTION WITH SUCH LITIGATION. THE BORROWER AND EACH PARENT
GUARANTOR IRREVOCABLY CONSENT TO THE SERVICE OF PROCESS BY REGISTERED MAIL,
POSTAGE PREPAID, OR BY PERSONAL SERVICE WITHIN OR WITHOUT THE STATE OF NEW YORK.
THE BORROWER AND EACH PARENT GUARANTOR HEREBY EXPRESSLY AND IRREVOCABLY WAIVE,
TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH ANY OF THEM MAY HAVE
OR HEREAFTER MAY HAVE TO THE LAYING OF VENUE OF ANY SUCH LITIGATION BROUGHT IN
ANY SUCH COURT REFERRED TO ABOVE AND ANY CLAIM THAT ANY SUCH LITIGATION HAS BEEN
BROUGHT IN AN INCONVENIENT FORUM. TO THE EXTENT THAT THE BORROWER OR ANY PARENT
GUARANTOR HAS OR HEREAFTER MAY ACQUIRE ANY IMMUNITY FROM JURISDICTION OF ANY
COURT OF FROM ANY LEGAL PROCESS (WHETHER THROUGH SERVICE OR NOTICE, ATTACHMENT
PRIOR TO JUDGMENT, ATTACHMENT IN AID OF EXECUTION OR OTHERWISE) WITH RESPECT TO
ITSELF OR ITS PROPERTY, THE BORROWER AND EACH PARENT GUARANTOR HEREBY
IRREVOCABLY WAIVE (TO THE EXTENT PERMITTED UNDER APPLICABLE LAW) SUCH IMMUNITY
IN RESPECT OF ITS OBLIGATIONS UNDER THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS.
SECTION 11.16. Waiver of Jury Trial. THE AGENTS, THE DOCUMENTATION AGENT,
THE ARRANGER, THE ISSUER, THE LENDERS, THE BORROWER AND THE PARENT GUARANTORS
HEREBY KNOWINGLY, VOLUNTARILY AND
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<PAGE>
INTENTIONALLY WAIVE ANY RIGHTS THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF
ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH,
THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF
DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF THE AGENTS, THE
DOCUMENTATION AGENT, THE ARRANGER, THE LENDERS, THE BORROWER OR THE PARENT
GUARANTORS RELATING THERETO. THE BORROWER AND THE PARENT GUARANTORS ACKNOWLEDGE
AND AGREE THAT EACH SUCH PERSON HAS RECEIVED FULL AND SUFFICIENT CONSIDERATION
FOR THIS PROVISION (AND EACH OTHER PROVISION OF EACH OTHER LOAN DOCUMENT TO
WHICH SUCH PERSON IS A PARTY) AND THAT THIS PROVISION IS A MATERIAL INDUCEMENT
FOR THE AGENTS, THE DOCUMENTATION AGENT, THE ARRANGER, THE ISSUER AND THE
LENDERS ENTERING INTO THIS AGREEMENT AND EACH SUCH OTHER LOAN DOCUMENT.
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized as of the day
and year first above written.
BORROWER:
DUANE READE
By Duane Reade Inc., a general partner
By
Title:
By DRI I Inc., a general partner
By
Title:
PARENT GUARANTORS:
DUANE READE INC.
By
Title:
DRI I INC.
By
Title:
<PAGE>
AGENTS AND LENDERS:
DLJ CAPITAL FUNDING, INC., as the
Syndication Agent and as a Lender
By
Title:
FLEET NATIONAL BANK, as the Administrative
Agent and as a Lender
By
Title:
CREDIT LYONNAIS NEW YORK BRANCH, as
the Documentation Agent and as a Lender
By
Title:
LENDERS:
SUMMIT BANK
By
Title:
BHF-BANK AKTIENGESELLSCHAFT
By
Title:
By
Title:
<PAGE>
HELLER FINANCIAL, INC.
By
Title:
ORIX USA CORPORATION
By
Title:
OSPREY INVESTMENTS PORTFOLIO
By Citibank, N.A., as Manager
By
Title:
MORGAN STANLEY DEAN WITTER PRIME
INCOME TRUST
By
Title:
VAN KAMPEN CLO I, LIMITED
By Van Kampen American Capital Management,
Inc., as Collateral Manager
By
Title:
Merrill Lynch Global Investment Series:
INCOME STRATEGIES PORTFOLIO
By Merrill Lynch Asset Management, L.P.,
as Investment Advisor
<PAGE>
By
Title:
MERRILL LYNCH DEBT STRATEGIES
PORTFOLIO
By Merrill Lynch Asset Management, L.P.,
as Investment Advisor
By
Title:
MERRILL LYNCH PRIME RATE PORTFOLIO
By Merrill Lynch Asset Management, L.P.
as Investment Advisor
By
Title:
DEBT STRATEGIES FUND, INC.
By
Title:
MERRILL LYNCH SENIOR FLOATING RATE
FUND, INC.
By
Title:
SENIOR HIGH INCOME PORTFOLIO
By
Title:
DEEPROCK & CO.
By: Eaton Vance Management, as Investment
Advisor
<PAGE>
By
Title:
SENIOR DEBT PORTFOLIO
By: Boston Management and Research, as
Investment Advisor
By
Title:
OXFORD STRATEGIC INCOME FUND
By:Eaton Vance Management, as Investment
Advisor
By
Title:
PAM CAPITAL FUNDING LP
By: Highland Capital Management, L.P., as
Collateral Manager
By
Title:
NORSE CBO, LTD.
By: Peterson Capital Management, LLC, as its
Investment Advisor
By: Peterson Capital Advisors, LLC, its
Manager and pursuant to delegated
authority
By
Title:
<PAGE>
CAPTIVA III FINANCE LTD., as advised by
Pacific Investment Management Company
By
Title:
BALANCED HIGH-YIELD FUND II LTD.,
By: BHF-Bank Aktiengesellschaft, acting
through its New York Branch, as
attorney-in-fact, as Assignee
By
Title:
GCB INVESTMENT PORTFOLIO,
By: Citibank, N.A.
By
Title:
<PAGE>
KZH PAMCO LLC
By
Title:
<PAGE>
SCHEDULE I
DISCLOSURE SCHEDULE
ITEM 6.6 Material Adverse Change
ITEM 6.7 Litigation.
Description of Proceeding Action or Claim Sought
------------------------- ----------------------
ITEM 6.9 Real Property.
ITEM 6.11 Employee Benefit Plans.
ITEM 6.12 Environmental Matters.
ITEM 6.16(c) Pharmaceutical Liabilities.
ITEM 7.2.2(c) Ongoing Indebtedness.
ITEM 7.2.5(a) Ongoing Investments.
<PAGE>
SCHEDULE II to
Credit Agreement
PERCENTAGES
<TABLE>
<CAPTION>
Revolving Loan Term A Loans Term B Loans August 1998 September 1998
Commitment Term C Loans Term C Loans
---------- ------------ ------------ ------------ ------------
<S> <C> <C> <C> <C> <C>
DLJ Capital Funding, Inc. 29.6875000000% 6.2500000000% 0% 0% 0%
Fleet National Bank 18.7500000000% 25.000000000% 0% 0% 0%
Credit Lyonnais New 14.0625000000% 18.750000000% 0% 0% 0%
York Branch
Summit Bank 14.0625000000% 18.750000000% 0% 0% 0%
BHF-Bank 11.7187500000% 15.625000000% 0% 0% 0%
Aktiengesellschaft
Heller Financial, Inc. 11.7187500000% 15.625000000% 0% 6.2500000000% 6.2500000000%
Orix USA Corporation 0% 0% 8.1250000000% 1.0156249246% 1.0156250108%
Osprey Investments Portfolio 0% 0% 5.0000000000% 0.6250000000% 0.6250000000%
Morgan Stanley Dean Witter 0% 0% 12.5000000000% 5.9249686432% 5.9249686576%
Prime Income Trust
Merrill Lynch Global Investment 0% 0% 9.3750000000% 0% 0%
Series: Income Strategies
Portfolio
Merrill Lynch Debt Strategies 0% 0% 6.2500000000% 0% 0%
Portfolio
Merrill Lynch Prime Rate 0% 0% 6.2500000000% 0% 0%
Portfolio
Debt Strategies Fund Inc. 0% 0% 3.1250000000% 0% 0%
Senior Debt Portfolio 0% 0% 14.3750000000% 0% 0%
Deeprock & Co. 0% 0% 1.2500000000% 0% 0%
Merrill Lynch Senior Floating 0% 0% 6.2500000000% 0% 0%
Rate Fund Inc.
<CAPTION>
Additional Term C
Loan Commitment
---------------
<S> <C>
DLJ Capital Funding, Inc. 100%
Fleet National Bank 0%
Credit Lyonnais New 0%
York Branch
Summit Bank 0%
BHF-Bank 0%
Aktiengesellschaft
Heller Financial, Inc. 0%
Orix USA Corporation 0%
Osprey Investments Portfolio 0%
Morgan Stanley Dean Witter 0%
Prime Income Trust
Merrill Lynch Global Investment 0%
Series: Income Strategies
Portfolio
Merrill Lynch Debt Strategies 0%
Portfolio
Merrill Lynch Prime Rate 0%
Portfolio
Debt Strategies Fund Inc. 0%
Senior Debt Portfolio 0%
Deeprock & Co. 0%
Merrill Lynch Senior Floating 0%
Rate Fund Inc.
</TABLE>
-126-
<PAGE>
<TABLE>
<S> <C> <C> <C> <C> <C>
Senior High Income Portfolio 0% 0% 3.1250000000% 0% 0%
Van Kampen CLO I Limited 0% 0% 18.7500000000% 2.3437499497% 2.3437500072%
GCB Investment Portfolio 0% 0% 0% 9.3750000000% 9.3750000000%
Norse CBO Ltd. 0% 0% 0% 10.5000000000% 10.5000000000%
Captiva III Finance Ltd. 0% 0% 0% 6.2500000000% 6.2500000000%
Chase Manhattan Bank 0% 0% 0% 6.2500000000% 6.2500000000%
Balanced High-Yield Fund II Ltd. 0% 0% 0% 12.5000000000% 12.5000000000%
Athena CDO 0% 0% 0% 5.0125313569% 5.0125313280%
KZH Pamco LLC 0% 0% 0% 14.5000000000% 14.5000000000%
Van Kampen Senior Floating 0% 0% 0% 18.7500000000% 18.7500000000%
Rate Fund
PAM Capital Funding LP 0% 0% 0% 0.7031251256% 0.7031249964%
<CAPTION>
<S> <C>
Senior High Income Portfolio 0%
Van Kampen CLO I Limited 0%
GCB Investment Portfolio 0%
Norse CBO Ltd. 0%
Captiva III Finance Ltd. 0%
Chase Manhattan Bank 0%
Balanced High-Yield Fund II Ltd. 0%
Athena CDO 0%
KZH Pamco LLC 0%
Van Kampen Senior Floating 0%
Rate Fund
PAM Capital Funding LP 0%
</TABLE>
-127-
<PAGE>
ADMINISTRATIVE INFORMATION
Notice Information
Borrower:
Duane Reade
440 Ninth Avenue
New York, New York 10001
Telecopier: 212-273-5795
Attention: Bill Tennant
Parent Guarantors:
Duane Reade Inc.
440 Ninth Avenue
New York, New York 10001
Telecopier: 212-273-5795
Attention: Bill Tennant
DRI I Inc.
440 Ninth Avenue
New York, New York 10001
Telecopier: 212-273-5795
Attention: Bill Tennant
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<PAGE>
Agents:
DLJ Capital Funding, Inc.,
as Syndication Agent
277 Park Avenue
New York, New York 10172
Telecopier: 212-892-7272
Attention: Tania Holman
Fleet National Bank,
as Administrative Agent
1 Federal Street
Boston, Massachusetts 02211
Telecopier: 617-346-4806
Attention: Eric Vander Mel
Credit Lyonnais New York Branch,
as Documentation Agent
1301 Avenue of the Americas
New York, New York 10019
Telecopier: 212-459-3176
Attention: John J. D'Angelo
-129-
<PAGE>
Lenders:
<TABLE>
<CAPTION>
Name of Lender Domestic Office LIBOR Office
- -------------- --------------- ------------
<S> <C> <C>
DLJ Capital Funding, Inc. 525 Washington Blvd. 525 Washington Blvd.
Jersey City, NJ 07310 Jersey City, NJ 07310
Telecopier: 201-610-1965 Telecopier: 201-610-1965
Attention: Ed Vowinkel Attention: Ed Vowinkel
Fleet National Bank 1 Federal Street 1 Federal Street
Boston, MA 02211 Boston, MA 02211
Telecopier: 617-346-4806 Telecopier: 617-346-4806
Attention: Eric Vander Mel Attention: Eric Vander Mel
Credit Lyonnais New York 1301 Avenue of the Americas 1301 Avenue of the Americas
Branch New York, NY 10019 New York, NY 10019
Telecopier: 212-261-3776 Telecopier: 212-261-3776
Attention: Allison L. Adams Attention: Allison L. Adams
Summit Bank 750 Walnut Ave., 3rd Floor 750 Walnut Ave., 3rd Floor
Cranford, NJ 07016 Cranford, NJ 07016
Telecopier: 908-709-6433 Telecopier: 908-709-6433
Attention: Christopher P. Attention: Christopher P.
Kleczkowski Kleczkowski
BHF-Bank NY Branch Grand Cayman Branch
Aktiengesellschaft 590 Madison Ave. c/o 590 Madison Ave.
New York, NY 10022 New York, NY 10022
Telecopier: 212-756-5536 Telecopier: 212-756-5536
Attention: Tom Scifo Attention: Tom Scifo
Heller Financial, Inc. 500 W. Monroe St. 500 W. Monroe St.
Chicago, IL 60661 Chicago, IL 60661
Telecopier: 312-441-7357 Telecopier: 312-441-7357
Attention: Linda Wolf Attention: Linda Wolf
Van Kampen CLO I Limited One Parkview Plaza One Parkview Plaza
Oakbrook Terrace, IL Oakbrook Terrace, IL
Telecopier: 630-684-6384 Telecopier: 630-684-6384
Attention: Jeffrey Maillet Attention: Jeffrey Maillet
</TABLE>
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<PAGE>
<TABLE>
<S> <C> <C>
Senior High Income c/o Merrill Lynch Asset c/o Merrill Lynch Asset
Portfolio Management Management
800 Scudders Mill Road - 800 Scudders Mill Road -
Area 1B Area 1B
Plainsboro, NJ 08536 Plainsboro, NJ 08536
Telecopier: 609-282-2769 Telecopier: 609-282-2769
Attention: Colleen Cunniffe Attention: Colleen Cunniffe
Merrill Lynch Global c/o Merrill Lynch Asset c/o Merrill Lynch Asset
Investment Series: Income Management Management
Strategies Portfolio 800 Scudders Mill Road - 800 Scudders Mill Road -
Area 1B Area 1B
Plainsboro, NJ 08536 Plainsboro, NJ 08536
Telecopier: 609-282-2769 Telecopier: 609-282-2769
Attention: Colleen Cunniffe Attention: Colleen Cunniffe
Merrill Lynch Debt c/o Merrill Lynch Asset c/o Merrill Lynch Asset
Strategies Portfolio Management Management
800 Scudders Mill Road - 800 Scudders Mill Road -
Area 1B Area 1B
Plainsboro, NJ 08536 Plainsboro, NJ 08536
Telecopier: 609-282-2769 Telecopier: 609-282-2769
Attention: Colleen Cunniffe Attention: Colleen Cunniffe
Merrill Lynch Prime Rate c/o Merrill Lynch Asset c/o Merrill Lynch Asset
Portfolio Management Management
800 Scudders Mill Road - 800 Scudders Mill Road -
Area 1B Area 1B
Plainsboro, NJ 08536 Plainsboro, NJ 08536
Telecopier: 609-282-2769 Telecopier: 609-282-2769
Attention: Colleen Cunniffe Attention: Colleen Cunniffe
Debt Strategies Fund c/o Merrill Lynch Asset c/o Merrill Lynch Asset
Management Management
800 Scudders Mill Road - 800 Scudders Mill Road -
Area 1B Area 1B
Plainsboro, NJ 08536 Plainsboro, NJ 08536
Telecopier: 609-282-2769 Telecopier: 609-282-2769
Attention: Colleen Cunniffe Attention: Colleen Cunniffe
</TABLE>
-131-
<PAGE>
<TABLE>
<S> <C> <C>
ML Senior Floating Rate c/o Merrill Lynch Asset c/o Merrill Lynch Asset
Fund Management Management
800 Scudders Mill Road - 800 Scudders Mill Road -
Area 1B Area 1B
Plainsboro, NJ 08536 Plainsboro, NJ 08536
Telecopier: 609-282-2769 Telecopier: 609-282-2769
Attention: Colleen Cunniffe Attention: Colleen Cunniffe
Morgan Stanley Dean c/o Dean Witter Intercapital c/o Dean Witter Intercapital
Witter Prime Income Trust 2 World Trade Center - 2 World Trade Center -
72nd Floor 72nd Floor
New York, NY 10048 New York, NY 10048
Telecopier: 212-392-5345 Telecopier: 212-392-5345
Attention: Kevin Egan Attention: Kevin Egan
Deeprock & Company c/o Eaton Vance Management c/o Eaton Vance Management
24 Federal Street - 6th Floor 24 Federal Street - 6th Floor
Boston, MA 02110 Boston, MA 02110
Telecopier: 617-654-9594 Telecopier: 617-654-9594
Attention: Scott Page Attention: Scott Page
Senior Debt Portfolio c/o Eaton Vance Management c/o Eaton Vance Management
24 Federal Street - 6th Floor 24 Federal Street - 6th Floor
Boston, MA 02110 Boston, MA 02110
Telecopier: 617-654-9594 Telecopier: 617-654-9594
Attention: Scott Page Attention: Scott Page
Osprey Investments c/o Citibank N.A. c/o Citibank N.A.
Portfolio 599 Lexington Ave. - 599 Lexington Ave. -
26th Floor 26th Floor
New York, NY 10043 New York, NY 10043
Telecopier: 212-793-1871 Telecopier: 212-793-1871
Attention: Hans Christenson Attention: Hans Christenson
Orix USA Corporation 1177 Avenue of the Americas, 1177 Avenue of the Americas,
10th Floor 10th Floor
New York, NY 10036 New York, NY 10036
Telcopier: 212-739-1705 Telcopier: 212-739-1705
Attention: Paula Penkal Attention: Paula Penkal
</TABLE>
<PAGE>
<TABLE>
<S> <C> <C>
PAM Capital Funding LP c/o Highland Capital Management c/o Highland Capital
L.P. Management L.P.
1150 Two Galleria Tower 1150 Two Galleria Tower
13455 Noel Road 13455 Noel Road
Telcopier: 972-233-6143 Telcopier: 972-233-6143
Attention: Davis Deadman Attention: Davis Deadman
Balanced High-Yeild Fund c/o BHF-Bank Aktiengesellschaft, c/o BHF-Bank
II LTD., NY Branch Aktiengesellschaft,
590 Madison Avenue NY Branch
New York, NY 10022 590 Madison Avenue
Telecopier: 212-756-5536 New York, NY 10022
Telecopier: 212-756-5536
Attention: Tom Scifo
Attention: Tom Scifo
GCB Investment Portfolio c/o Citibank N. A. c/o Citibank N. A.
599 Lexington Avenue 599 Lexington Avenue
26th Floor 26th Floor
New York, NY 10043 New York, NY 10043
Telecopier: 212-793-1871 Telecopier: 212-793-1871
Attention: Hans Christenson Attention: Hans Christenson
Van Kampen Senior One Parkview Plaza One Parkview Plaza
Floating Rate Fund Oakbrook Terrace, Il Oakbrook Terrace, Il
60181 60181
Telecopier: 630-684-6384 Telecopier: 630-684-6384
Attention: Jeffrey Maillet Attention: Jeffrey Maillet
Oxford Strategic Income c/o Eaton Vance Management c/o Eaton Vance Management
Fund 24 Federal Street. 6th Floor 24 Federal Street. 6th Floor
Boston, MA 02110 Boston, MA 02110
Telecopier: 617-654-9594 Telecopier: 617-654-9594
Attention: Scott Page Attention: Scott Page
KZH Pamco 450 West 33rd Street, 450 West 33rd Street,
15th Floor 15th Floor
New York, NY 10001 New York, NY 10001
Telecopier: 212-946-7776 Telecopier: 212-946-7776
Attention: Virginia Conway Attention: Virginia Conway
</TABLE>
<PAGE>
<TABLE>
<S> <C> <C>
Norse CBO, Ltd. c/o Peterson Capital Management c/o Peterson Capital
600 Atlantic Avenue Management
Boston, MA 02210-2203 600 Atlantic Avenue
Telecopier: 617-367-4826 Boston, MA 02210-2203
Telecopier: 617-367-4826
Attention: Chris Kaster
Attention: Chris Kaster
Captiva III Finance Ltd. c/o Pacific Investment c/o Pacific Investment
Management Company Management Company
840 Newport Center Drive 840 Newport Center Drive
Newport Beach, CA 92660 Newport Beach, CA 92660
Telecopier: 949-718-2623 Telecopier: 949-718-2623
Attention: Melissa Fejdasz Attention: Melissa Fejdasz
Chase Manhattan Bank 270 Park Avenue 270 Park Avenue
22nd Floor 22nd Floor
New York, NY 10017 New York, NY 10017
Telecopier: 212-270-3841 Telecopier: 212-270-3841
Attention: Anna Marie Beissel Attention: Anna Marie Beissel
</TABLE>
-135-
<PAGE>
TABLE OF CONTENTS
Section Page
- ------- ----
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
1.1. Defined Terms........................................................4
1.2. Use of Defined Terms................................................36
1.3. Cross-References....................................................36
1.4. Accounting and Financial Determinations.............................37
ARTICLE II
COMMITMENTS, BORROWING AND ISSUANCE PROCEDURES,
NOTES AND LETTERS OF CREDIT
2.1. Commitments.........................................................37
2.1.1. Additional Term C Loan Commitments..................................38
2.1.2. Revolving Loan Commitment and Swing Line Loan Commitment............38
2.1.3. Letter of Credit Commitment.........................................38
2.1.4. Lenders Not Permitted or Required to Make the Loans.................39
2.1.5. Issuer Not Permitted or Required to Issue Letters of Credit.........39
2.2. Reduction of the Commitment Amounts.................................39
2.2.1. Optional............................................................39
2.2.2. Mandatory...........................................................40
2.3. Borrowing Procedures and Funding Maintenance........................40
2.3.1. Additional Term C Loans and Revolving Loans.........................40
2.3.2. Swing Line Loans....................................................41
2.3.3. Existing Term A Loans, Existing Term B Loans, August 1998
Term C Loans and September 1998 Term C Loans.......................42
2.4. Continuation and Conversion Elections...............................43
2.5. Funding.............................................................43
2.6. Issuance Procedures.................................................43
2.6.1. Other Lenders' Participation........................................44
2.6.2. Disbursements; Conversion to Revolving Loans........................44
2.6.3. Reimbursement.......................................................45
2.6.4. Deemed Disbursements................................................45
2.6.5. Nature of Reimbursement Obligations.................................46
2.6.6. Indemnity...........................................................46
2.6.7. Borrower's Guaranty of Reimbursement Obligations under
Letters of Credit Issued for the Account of its Subsidiaries.......47
2.6.8. Continued Letters of Credit.........................................50
2.7. Register; Notes.....................................................50
ARTICLE III
REPAYMENTS, PREPAYMENTS, INTEREST AND FEES
3.1. Repayments and Prepayments; Application.............................52
<PAGE>
3.1.1. Repayments and Prepayments..........................................52
3.1.2. Application.........................................................57
3.2. Interest Provisions.................................................58
3.2.1. Rates ............................................................58
3.2.2. Post-Maturity Rates.................................................58
3.2.3. Payment Dates.......................................................58
3.3. Fees................................................................59
3.3.1. Commitment Fee......................................................59
3.3.2. Syndication Agent's, Administrative Agent's and Arranger's Fees.....59
3.3.3. Letter of Credit Fee................................................59
ARTICLE IV
CERTAIN LIBO RATE AND OTHER PROVISIONS
4.1. LIBO Rate Lending Unlawful..........................................60
4.2. Deposits Unavailable................................................60
4.3. Increased LIBO Rate Loan Costs, etc.................................60
4.4. Funding Losses......................................................61
4.5. Increased Capital Costs.............................................61
4.6. Taxes...............................................................62
4.7. Payments, Computations, etc.........................................63
4.8. Sharing of Payments.................................................63
4.9. Setoff..............................................................64
4.10. Replacement of Lenders..............................................64
ARTICLE V
CONDITIONS TO CREDIT EXTENSIONS
5.1. [INTENTIONALLY OMITTED].............................................65
5.2. All Credit Extensions...............................................65
5.2.1. Compliance with Warranties, No Default, etc.........................65
5.2.2. Credit Extension Request............................................66
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
6.1. Organization, etc...................................................66
6.2. Due Authorization, Non-Contravention, etc...........................66
6.3. Government Approval, Regulation, etc................................67
6.4. Validity, etc.......................................................67
6.5. Financial Information...............................................67
6.6. No Material Adverse Change..........................................67
6.7. Litigation, Labor Controversies, etc................................67
6.8. Subsidiaries........................................................67
6.9. Ownership of Properties.............................................68
6.10. Taxes...............................................................68
6.11. Pension and Welfare Plans...........................................68
6.12. Environmental Warranties............................................68
<PAGE>
6.13. Regulations U and X.................................................70
6.14. Accuracy of Information.............................................70
6.15. Solvency............................................................70
6.16. Pharmaceutical Laws.................................................71
6.17. Seniority of the Obligations and Senior Debt under the
Senior Subordinated Indenture......................................71
6.18. Year 2000...........................................................72
ARTICLE VII
COVENANTS
7.1. Affirmative Covenants...............................................72
7.1.1. Financial Information, Reports, Notices, etc........................72
7.1.2. Compliance with Laws, etc...........................................75
7.1.3. Maintenance of Properties...........................................75
7.1.4. Insurance...........................................................75
7.1.5. Books and Records...................................................76
7.1.6. Environmental Covenant..............................................76
7.1.7. Future Subsidiaries.................................................77
7.1.8. Future Leased Property and Future Acquisitions of Real
Property; Future Acquisition of Other Property.....................78
7.1.9. Use of Proceeds, etc................................................79
7.1.10. [INTENTIONALLY OMITTED].............................................79
7.1.11. [INTENTIONALLY OMITTED].............................................79
7.1.12. Maintenance of Corporate Separateness...............................79
7.1.13. Borrower Indebtedness...............................................80
7.1.14. Existing Mortgage...................................................80
7.2. Negative Covenants..................................................80
7.2.1. Business Activities.................................................80
7.2.2. Indebtedness........................................................81
7.2.3. Liens ............................................................82
7.2.4. Financial Covenants.................................................83
7.2.5. Investments.........................................................85
7.2.6. Restricted Payments, etc............................................86
7.2.7. Capital Expenditures, etc...........................................88
7.2.8. Consolidation, Merger, etc..........................................88
7.2.9. Asset Dispositions, etc.............................................89
7.2.10. Modification of Certain Agreements..................................90
7.2.11. Transactions with Affiliates........................................90
7.2.12. Negative Pledges, Restrictive Agreements, etc.......................90
7.2.13. Stock of Subsidiaries...............................................91
7.2.14. Sale and Leaseback..................................................91
ARTICLE VIII
EVENTS OF DEFAULT
8.1. Listing of Events of Default........................................91
<PAGE>
8.1.1. Non-Payment of Obligations..........................................92
8.1.2. Breach of Warranty..................................................92
8.1.3. Non-Performance of Certain Covenants and Obligations................92
8.1.4. Non-Performance of Other Covenants and Obligations..................92
8.1.5. Default on Other Indebtedness.......................................92
8.1.6. Judgments...........................................................92
8.1.7. Pension Plans.......................................................93
8.1.8. Change in Control...................................................93
8.1.9. Bankruptcy, Insolvency, etc.........................................93
8.1.10. Impairment of Security, etc.........................................94
8.2. Action if Bankruptcy, etc...........................................94
8.3. Action if Other Event of Default....................................94
ARTICLE IX
GUARANTY
9.1. Guaranty............................................................95
9.2. Acceleration of Parent Guaranty.....................................95
9.3. Guaranty Absolute, etc..............................................95
9.4. Reinstatement, etc..................................................96
9.5. Waiver, etc.........................................................97
9.6. Postponement of Subrogation, etc....................................97
9.7. Successors, Transferees and Assigns; Transfers of Notes, etc........98
ARTICLE X
THE AGENTS
10.1. Actions.............................................................98
10.2. Funding Reliance, etc...............................................99
10.3. Exculpation.........................................................99
10.4. Successor...........................................................99
10.5. Credit Extensions by each Agent....................................100
10.6. Credit Decisions...................................................100
10.7. Copies, etc........................................................100
10.8. The Swing Line Lender, the Issuer, the Documentation Agent,
the Syndication Agent and the Administrative Agent................101
ARTICLE XI
MISCELLANEOUS PROVISIONS
11.1. Waivers, Amendments, etc...........................................101
11.2. Notices............................................................102
11.3. Payment of Costs and Expenses......................................103
11.4. Indemnification....................................................103
11.5. Survival...........................................................105
11.6. Severability.......................................................105
11.7. Headings...........................................................105
11.8. Execution in Counterparts, Effectiveness, etc......................105
11.9. Governing Law; Entire Agreement....................................105
<PAGE>
11.10. Successors and Assigns............................................105
11.11. Sale and Transfer of Loans and Notes; Participations in
Loans and Notes .................................................106
11.11.1. Assignments.......................................................106
11.11.2. Participations....................................................108
11.12. Other Transactions................................................109
11.13. Independence of Covenants.........................................109
11.14. Confidentiality...................................................109
11.15. Forum Selection and Consent to Jurisdiction.......................110
11.16. Waiver of Jury Trial..............................................111
<PAGE>
SCHEDULE I- Disclosure Schedule
SCHEDULE II- Percentages and Administrative Information
EXHIBIT A-1 - Form of Revolving Note
EXHIBIT A-2 - Form of Term A Note
EXHIBIT A-3 - Form of Term B Note
EXHIBIT A-4 - Form of August 1998 Term C Note
EXHIBIT A-5 - Form of September 1998 Term C Note
EXHIBIT A-6 - Form of Additional Term C Note
EXHIBIT A-7 - Form of Registered Note
EXHIBIT A-8 - Form of Swing Line Note
EXHIBIT B-1 - Form of Borrowing Request
EXHIBIT B-2 - Form of Issuance Request
EXHIBIT C - Form of Continuation/Conversion Notice
EXHIBIT D - Form of Amendment Effective Date Certificate
EXHIBIT E - Form of Compliance Certificate
EXHIBIT F-1 - Conformed copy of Partnership Security Agreement
EXHIBIT F-2 - Conformed copy of Borrower Security Agreement
EXHIBIT F-3 - Form of Subsidiary Security Agreement
EXHIBIT G-1 - Conformed copy of Holdings Pledge Agreement
EXHIBIT G-2 - Conformed copy of Borrower Pledge Agreement
EXHIBIT G-3 - Form of Subsidiary Pledge Agreement
EXHIBIT H - Form of Subsidiary Guaranty
EXHIBIT I - Form of Perfection Certificate
EXHIBIT J - Form of Lender Assignment Agreement
EXHIBIT K - Form of Opinion of New York Counsel to the Obligors
EXHIBIT L-1 - Form of Holdings Solvency Certificate
EXHIBIT L-2 - Form of Borrower Solvency Certificate
<PAGE>
EXHIBIT A-1
to Second Amended and Restated
Credit Agreement
REVOLVING NOTE
$_______________ March 17, 1999
FOR VALUE RECEIVED, the undersigned, DUANE READE, a New York general
partnership (the "Borrower"), promises to pay to the order of
____________________ (the "Lender") on the Stated Maturity Date (as defined in
the Amended and Restated Credit Agreement referred to below), the principal sum
of _________________ DOLLARS ($ ________) or, if less, the aggregate unpaid
principal amount of all Revolving Loans shown on the schedule attached hereto
(and any continuation thereof) made by the Lender pursuant to that certain
Second Amended and Restated Credit Agreement, dated as of March 17, 1999,
amending and restating in its entirety that certain Amended and Restated Credit
Agreement, dated as of September 11, 1998 (as amended prior to the Amendment
Effective Date) (as so amended and restated, and together with all amendments,
supplements, restatements and other modifications, if any, from time to time
thereafter made thereto, the "Credit Agreement"), among the Borrower, each of
the Parent Guarantors named therein, the various financial institutions
(including the Lender) as are or may become parties thereto, DLJ Capital
Funding, Inc., as Syndication Agent, Fleet National Bank, as Administrative
Agent and Credit Lyonnais New York Branch, as Documentation Agent.
The Borrower also promises to pay interest on the unpaid principal amount
hereof from time to time outstanding from the date hereof until maturity
(whether by acceleration or otherwise) and, after maturity, until paid, at the
rates per annum and on the dates specified in the Credit Agreement.
Payments of both principal and interest are to be made in lawful money of
the United States of America in same day or immediately available funds to the
account designated by the Administrative Agent pursuant to the Credit Agreement.
This Note is one of the Revolving Notes referred to in, and evidences
Indebtedness incurred under, the Credit Agreement, to which reference is made
for a description of the security for this Note and for a statement of the terms
and conditions on which the Borrower is permitted and required to make
prepayments and repayments of principal of the Indebtedness evidenced by this
Note and on which such Indebtedness may be declared to be immediately due and
payable. Unless otherwise defined, terms used herein have the meanings provided
in the Credit Agreement.
<PAGE>
This Revolving Note and the other Revolving Notes shall represent an
amendment and restatement of, the Revolving Notes as defined in and issued under
the Existing Credit Agreement (herein, the "Existing Revolving Notes"), and the
Indebtedness originally evidenced by the Existing Revolving Notes which is now
evidenced by this new amended and restated Revolving Note and the other
Revolving Notes shall be a continuing Indebtedness, and nothing contained herein
or in such other Revolving Notes shall be construed to deem the Existing
Revolving Notes paid, or to release or terminate any Lien or security interest
given to secure the Existing Revolving Notes, which Liens and security interests
shall continue to secure such Indebtedness as evidenced by this Revolving Note
and such other Revolving Notes.
All parties hereto, whether as makers, endorsers, or otherwise, severally
waive presentment for payment, demand, protest and notice of dishonor.
THIS NOTE HAS BEEN DELIVERED IN NEW YORK, NEW YORK AND SHALL BE DEEMED TO
BE A CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW
YORK.
DUANE READE
By Duane Reade Inc., a
general partner
By
Title:
By DRI I Inc., a general
partner
By
Title:
-2-
<PAGE>
REVOLVING LOANS AND PRINCIPAL PAYMENTS
<TABLE>
<CAPTION>
====================================================================================================================================
Amount of Interest Amount of
Revolving Period Principal Unpaid Principal Notation
Date Loan Made (If Applicable) Repaid Balance Total Made By
- ---- ----------------- --------------- ------------------ ------------------ ----- -------
Base LIBO Base LIBO Base LIBO
Rate Rate Rate Rate Rate Rate
---- ---- ---- ---- ---- ----
====================================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
====================================================================================================================================
</TABLE>
<PAGE>
EXHIBIT A-2
to Second Amended and Restated
Credit Agreement
TERM A NOTE
$_______________ March 17, 1999
FOR VALUE RECEIVED, the undersigned, DUANE READE, a New York general
partnership (the "Borrower"), promises to pay to the order of
____________________ (the "Lender") the principal sum of _________________
DOLLARS ($ ________) or, if less, the aggregate unpaid principal amount of all
Term A Loans shown on the schedule attached hereto (and any continuation
thereof) made by the Lender pursuant to that certain Second Amended and Restated
Credit Agreement, dated as of March 17, 1999, amending and restating in its
entirety that certain Amended and Restated Credit Agreement, dated as of
September 11, 1998 (as amended prior to the Amendment Effective Date) (as so
amended and restated, and together with all amendments, supplements,
restatements and other modifications, if any, from time to time thereafter made
thereto, the "Credit Agreement"), among the Borrower, each of the Parent
Guarantors named therein, the various financial institutions (including the
Lender) as are or may become parties thereto, DLJ Capital Funding, Inc., as
Syndication Agent, Fleet National Bank, as Administrative Agent and Credit
Lyonnais New York Branch, as Documentation Agent, payable in installments as set
forth in the Credit Agreement, with a final installment (in the amount necessary
to pay in full this Note) due and payable on the Stated Maturity Date.
The Borrower also promises to pay interest on the unpaid principal amount
hereof from time to time outstanding from the date hereof until maturity
(whether by acceleration or otherwise) and, after maturity, until paid, at the
rates per annum and on the dates specified in the Credit Agreement.
Payments of both principal and interest are to be made in lawful money of
the United States of America in same day or immediately available funds to the
account designated by the Administrative Agent pursuant to the Credit Agreement.
This Note is one of the Term A Notes referred to in, and evidences
Indebtedness incurred under, the Credit Agreement, to which reference is made
for a description of the security for this Note and for a statement of the terms
and conditions on which the Borrower is permitted and required to make
prepayments and repayments of principal of the Indebtedness evidenced by this
Note and on which such Indebtedness may be declared to be immediately due and
payable. Unless otherwise defined, terms
<PAGE>
used herein have the meanings provided in the Credit Agreement.
This Term A Note and the other Term A Notes shall represent an amendment
and restatement of, the Term A Notes as defined in and issued under the Existing
Credit Agreement (herein, the "Existing Term A Notes"), and the Indebtedness
originally evidenced by the Existing Term A Notes which is now evidenced by this
new amended and restated Term A Note and the other Term A Notes shall be a
continuing Indebtedness, and nothing contained herein or in such other Term A
Notes shall be construed to deem the Existing Term A Notes paid, or to release
or terminate any Lien or security interest given to secure the Existing Term A
Notes, which Liens and security interests shall continue to secure such
Indebtedness as evidenced by this Term A Note and such other Term A Notes.
All parties hereto, whether as makers, endorsers, or otherwise, severally
waive presentment for payment, demand, protest and notice of dishonor.
THIS NOTE HAS BEEN DELIVERED IN NEW YORK, NEW YORK AND SHALL BE DEEMED TO
BE A CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW
YORK.
DUANE READE
By Duane Reade Inc., a
general partner
By
Title:
By DRI I Inc., a general
partner
By
Title:
-7-
<PAGE>
TERM A LOANS AND PRINCIPAL PAYMENTS
<TABLE>
<CAPTION>
====================================================================================================================================
Amount of Interest Amount of
Term A Period Principal Unpaid Principal Notation
Date Loan Made (If Applicable) Repaid Balance Total Made By
- ---- ----------------- --------------- ------------------ ------------------ ----- -------
Base LIBO Base LIBO Base LIBO
Rate Rate Rate Rate Rate Rate
---- ---- ---- ---- ---- ----
====================================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
====================================================================================================================================
</TABLE>
<PAGE>
EXHIBIT A-3
to Second Amended and Restated
Credit Agreement
TERM B NOTE
$_______________ March 17, 1999
FOR VALUE RECEIVED, the undersigned, DUANE READE, a New York general
partnership (the "Borrower"), promises to pay to the order of
____________________ (the "Lender") the principal sum of _________________
DOLLARS ($ ________) or, if less, the aggregate unpaid principal amount of all
Term B Loans shown on the schedule attached hereto (and any continuation
thereof) made by the Lender pursuant to that certain Second Amended and Restated
Credit Agreement, dated as of March 17, 1999, amending and restating in its
entirety that certain Amended and Restated Credit Agreement, dated as of
September 11, 1999 (as amended prior to the Amendment Effective Date) (as so
amended and restated, and together with all amendments, supplements,
restatements and other modifications, if any, from time to time thereafter made
thereto, the "Credit Agreement"), among the Borrower, each of the Parent
Guarantors named therein, the various financial institutions (including the
Lender) as are or may become parties thereto, DLJ Capital Funding, Inc., as
Syndication Agent, Fleet National Bank, as Administrative Agent and Credit
Lyonnais New York Branch, as Documentation Agent, payable in installments as set
forth in the Credit Agreement, with a final installment (in the amount necessary
to pay in full this Note) due and payable on the Stated Maturity Date.
The Borrower also promises to pay interest on the unpaid principal amount
hereof from time to time outstanding from the date hereof until maturity
(whether by acceleration or otherwise) and, after maturity, until paid, at the
rates per annum and on the dates specified in the Credit Agreement.
Payments of both principal and interest are to be made in lawful money of
the United States of America in same day or immediately available funds to the
account designated by the Administrative Agent pursuant to the Credit Agreement.
This Note is one of the Term B Notes referred to in, and evidences
Indebtedness incurred under, the Credit Agreement, to which reference is made
for a description of the security for this Note and for a statement of the terms
and conditions on which the Borrower is permitted and required to make
prepayments and repayments of principal of the Indebtedness evidenced by this
Note and on which such Indebtedness may be declared to be immediately due and
payable. Unless otherwise defined, terms used herein have the meanings provided
in the Credit Agreement.
<PAGE>
This Term B Note and the other Term B Notes shall represent an amendment
and restatement of, the Term B Notes as defined in and issued under the Existing
Credit Agreement (herein, the "Existing Term B Notes"), and the Indebtedness
originally evidenced by the Existing Term B Notes which is now evidenced by this
new amended and restated Term B Note and the other Term B Notes shall be a
continuing Indebtedness, and nothing contained herein or in such other Term B
Notes shall be construed to deem the Existing Term B Notes paid, or to release
or terminate any Lien or security interest given to secure the Existing Term B
Notes, which Liens and security interests shall continue to secure such
Indebtedness as evidenced by this Term B Note and such other Term B Notes.
All parties hereto, whether as makers, endorsers, or otherwise, severally
waive presentment for payment, demand, protest and notice of dishonor.
THIS NOTE HAS BEEN DELIVERED IN NEW YORK, NEW YORK AND SHALL BE DEEMED TO
BE A CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW
YORK.
DUANE READE
By Duane Reade Inc., a
general partner
By
Title:
By DRI I Inc., a general
partner
By
Title:
-12-
<PAGE>
TERM B LOANS AND PRINCIPAL PAYMENTS
<TABLE>
<CAPTION>
====================================================================================================================================
Amount of Interest Amount of
Term B Period Principal Unpaid Principal Notation
Date Loan Made (If Applicable) Repaid Balance Total Made By
- ---- ----------------- --------------- ------------------ ------------------ ----- -------
Base LIBO Base LIBO Base LIBO
Rate Rate Rate Rate Rate Rate
---- ---- ---- ---- ---- ----
====================================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
====================================================================================================================================
</TABLE>
<PAGE>
EXHIBIT A-4
to Second Amended and Restated
Credit Agreement
AUGUST 1998 TERM C NOTE
$_______________ March 17, 1999
FOR VALUE RECEIVED, the undersigned, DUANE READE, a New York general
partnership (the "Borrower"), promises to pay to the order of
____________________ (the "Lender") the principal sum of _________________
DOLLARS ($ ________) or, if less, the aggregate unpaid principal amount of all
Existing Term C Loans shown on the schedule attached hereto (and any
continuation thereof) made by the Lender pursuant to that certain Second Amended
and Restated Credit Agreement, dated as of March 17, 1999, amending and
restating in its entirety that certain Amended and Restated Credit Agreement,
dated as of September 11, 1998 (as amended prior to the Amendment Effective
Date) (as so amended and restated, and together with all amendments,
supplements, restatements and other modifications, if any, from time to time
thereafter made thereto, the "Credit Agreement"), among the Borrower, each of
the Parent Guarantors named therein, the various financial institutions
(including the Lender) as are or may become parties thereto, DLJ Capital
Funding, Inc., as Syndication Agent, Fleet National Bank, as Administrative
Agent and Credit Lyonnais New York Branch, as Documentation Agent, payable in
installments as set forth in the Credit Agreement, with a final installment (in
the amount necessary to pay in full this Note) due and payable on the Stated
Maturity Date.
The Borrower also promises to pay interest on the unpaid principal amount
hereof from time to time outstanding from the date hereof until maturity
(whether by acceleration or otherwise) and, after maturity, until paid, at the
rates per annum and on the dates specified in the Credit Agreement.
Payments of both principal and interest are to be made in lawful money of
the United States of America in same day or immediately available funds to the
account designated by the Administrative Agent pursuant to the Credit Agreement.
This Note is one of the August 1998 Term C Notes referred to in, and
evidences Indebtedness incurred under, the Credit Agreement, to which reference
is made for a description of the security for this Note and for a statement of
the terms and conditions on which the Borrower is permitted and required to make
prepayments and repayments of principal of the Indebtedness evidenced by this
Note and on which such Indebtedness may be declared to be immediately due and
payable. Unless otherwise defined, terms used herein have the meanings provided
in the
<PAGE>
Credit Agreement.
This August 1998 Term C Note and the other August 1998 Term C Notes shall
represent an amendment and restatement of, the Existing Term C Notes as defined
in and issued under the Existing Credit Agreement (herein, the "Original Term C
Notes"), and the Indebtedness originally evidenced by the Original Term C Notes
which is now evidenced by this new amended and restated August 1998 Term C Note
and the other August 1998 Term C Notes shall be a continuing Indebtedness, and
nothing contained herein or in such other August 1998 Term C Notes shall be
construed to deem the Original Term C Notes paid, or to release or terminate any
Lien or security interest given to secure the Original Term C Notes, which Liens
and security interests shall continue to secure such Indebtedness as evidenced
by this August 1998 Term C Note and such other August 1998 Term C Notes.
All parties hereto, whether as makers, endorsers, or otherwise, severally
waive presentment for payment, demand, protest and notice of dishonor.
THIS NOTE HAS BEEN DELIVERED IN NEW YORK, NEW YORK AND SHALL BE DEEMED TO
BE A CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW
YORK.
DUANE READE
By Duane Reade Inc., a
general partner
By
Title:
By DRI I Inc., a general
partner
By
Title:
-17-
<PAGE>
AUGUST 1998 TERM C LOANS AND PRINCIPAL PAYMENTS
<TABLE>
<CAPTION>
====================================================================================================================================
Amount of Interest Amount of
Existing Term C Period Principal Unpaid Principal Notation
Date Loan Made (If Applicable) Repaid Balance Total Made By
- ---- ----------------- --------------- ------------------ ------------------ ----- -------
Base LIBO Base LIBO Base LIBO
Rate Rate Rate Rate Rate Rate
---- ---- ---- ---- ---- ----
====================================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
====================================================================================================================================
</TABLE>
<PAGE>
EXHIBIT A-7
to Second Amended and Restated
Credit Agreement
REGISTERED NOTE
THIS REGISTERED NOTE MAY NOT BE TRANSFERRED EXCEPT IN COMPLIANCE
WITH THE TERMS AND PROVISIONS OF THE CREDIT AGREEMENT REFERRED TO
BELOW. TRANSFERS OF THIS REGISTERED NOTE MUST BE RECORDED IN THE
REGISTER MAINTAINED BY THE ADMINISTRATIVE AGENT PURSUANT TO THE
TERMS OF SUCH CREDIT AGREEMENT.
$_______________ March 17, 1999
FOR VALUE RECEIVED, the undersigned, DUANE READE, a New York general
partnership (the "Borrower"), promises to pay to the order of
____________________ (the "Lender") the principal sum of _________________
DOLLARS ($ ________) or, if less, the aggregate unpaid principal amount of all
[August 1998] [September 1998] [Additional] Term [A] [B] [C] Loans shown on the
schedule attached hereto (and any continuation thereof) made by the Lender
pursuant to that certain Second Amended and Restated Credit Agreement, dated as
of March 17, 1999, amending and restating in its entirety that certain Amended
and Restated Credit Agreement, dated as of September 11, 1998 (as amended prior
to the Amendment Effective Date) (as so amended and restated, and together with
all amendments, supplements, restatements and other modifications, if any, from
time to time thereafter made thereto, the "Credit Agreement"), among the
Borrower, each of the Parent Guarantors named therein, the various financial
institutions (including the Lender) as are or may become parties thereto, DLJ
Capital Funding, Inc., as Syndication Agent, Fleet National Bank, as
Administrative Agent and Credit Lyonnais New York Branch, as Documentation
Agent, payable in installments as set forth in the Credit Agreement, with a
final installment (in the amount necessary to pay in full this Registered Note)
due and payable on the Stated Maturity Date.
The Borrower also promises to pay interest on the unpaid principal amount
hereof from time to time outstanding from the date hereof until maturity
(whether by acceleration or otherwise) and, after maturity, until paid, at the
rates per annum and on the dates specified in the Credit Agreement.
Payments of both principal and interest are to be made in lawful money
of the United States of America in same day or immediately available funds to
the account designated by the
<PAGE>
Administrative Agent pursuant to the Credit Agreement.
This Registered Note is one of the Registered Notes referred to in, and
evidences Indebtedness incurred under, the Credit Agreement, to which reference
is made for a description of the security for this Registered Note and for a
statement of the terms and conditions on which the Borrower is permitted and
required to make prepayments and repayments of principal of the Indebtedness
evidenced by this Registered Note and on which such Indebtedness may be declared
to be immediately due and payable. Unless otherwise defined, terms used herein
have the meanings provided in the Credit Agreement.
As provided in Section 11.11.1 of the Credit Agreement, this Registered
Note and the Obligations evidenced hereby may be assigned or otherwise
transferred in whole or in part only by registration of such assignment or
transfer of this Registered Note and the Obligations evidenced hereby on the
Register described in clause (b) of Section 2.7 of the Credit Agreement. Any
assignment or transfer of all or part of such Obligations and this Registered
Note evidencing the same shall be registered on the Register only upon surrender
for registration of assignment or transfer of this Registered Note evidencing
such Obligations, duly endorsed by (or accompanied by a written instrument of
assignment or transfer duly executed by) the Registered Noteholder hereof (and
compliance with the other relevant provisions of Section 11.11.1 of the Credit
Agreement), and thereupon one or more new Registered Notes in the same aggregate
principal amount shall be issued to the designated Assignee Lender, and this
Registered Note shall be returned by the Administrative Agent to the Borrower
marked "exchanged". Prior to the due presentment for registration of assignment
or transfer of this Registered Note, the Borrower and the Agents shall treat the
Person in whose name such Obligations and this Registered Note evidencing the
same is registered as the owner thereof for the purpose of receiving all
payments thereon and for all other purposes, notwithstanding any notice to the
contrary. This Registered Note may not be exchanged for promissory notes that
are not Registered Notes.
This Registered Note and the other Registered Notes shall represent an
amendment and restatement of, the Registered Notes as defined in and issued
under the Existing Credit Agreement (herein, the "Existing Registered Notes"),
and the Indebtedness originally evidenced by the Existing Registered Notes which
is now evidenced by this new amended and restated Registered Note and the other
Registered Notes shall be a continuing Indebtedness, and nothing contained
herein or in such other Registered Notes shall be construed to deem the Existing
Registered Notes paid, or to release or terminate any Lien or security interest
given to secure the Existing Registered Notes, which Liens and security
interests shall continue to secure such Indebtedness as evidenced by this
Registered Note and such other Registered Notes.
All parties hereto, whether as makers, endorsers, or otherwise, severally
waive presentment for payment, demand, protest and notice of dishonor.
THIS NOTE HAS BEEN DELIVERED IN NEW
-22-
<PAGE>
YORK, NEW YORK AND SHALL BE DEEMED TO BE A CONTRACT MADE UNDER AND GOVERNED BY
THE INTERNAL LAWS OF THE STATE OF NEW YORK.
DUANE READE
By Duane Reade Inc., a
general partner
By
Title:
By DRI I Inc., a general
partner
By
Title:
-23-
<PAGE>
[EXISTING] [ADDITIONAL]TERM [A] [B] [C] LOANS AND PRINCIPAL PAYMENTS
<TABLE>
<CAPTION>
====================================================================================================================================
Amount of
[Existing]
[Additional] Interest Amount of
Term [A][B][C] Period Principal Unpaid Principal Notation
Date Loan Made (If Applicable) Repaid Balance Total Made By
- ---- ----------------- --------------- ------------------ ------------------ ----- -------
Base LIBO Base LIBO Base LIBO
Rate Rate Rate Rate Rate Rate
---- ---- ---- ---- ---- ----
====================================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
====================================================================================================================================
</TABLE>
<PAGE>
EXHIBIT A-8
to Second Amended and Restated
Credit Agreement
SWING LINE NOTE
$5,000,000.00 March 17, 1999
FOR VALUE RECEIVED, the undersigned, DUANE READE, a New York general
partnership (the "Borrower"), promises to pay to the order of FLEET NATIONAL
BANK (the "Swing Line Lender") on the Stated Maturity Date (as defined in the
Credit Agreement referred to below) the principal sum of FIVE MILLION DOLLARS
($5,000,000.00) or, if less, the aggregate unpaid principal amount of all Swing
Line Loans shown on the schedule attached hereto (and any continuation thereof)
made by the Swing Line Lender pursuant to that certain Second Amended and
Restated Credit Agreement, dated as of March 17, 1999, amending and restating in
its entirety that certain Amended and Restated Credit Agreement, dated as of
September 11, 1998 (as amended prior to the Amendment Effective Date) (as so
amended and restated, and together with all amendments, supplements,
restatements and other modifications, if any, from time to time thereafter made
thereto, the "Credit Agreement"), among the Borrower, each of the Parent
Guarantors named therein, the various financial institutions (including the
Swing Line Lender) as are or may become parties thereto, DLJ Capital Funding,
Inc., as Syndication Agent, Fleet National Bank, as Administrative Agent and
Credit Lyonnais New York Branch, as Documentation Agent.
The Borrower also promises to pay interest on the unpaid principal amount
hereof from time to time outstanding from the date hereof until maturity
(whether by acceleration or otherwise) and, after maturity, until paid, at the
rates per annum and on the dates specified in the Credit Agreement.
Payments of both principal and interest are to be made in lawful money of
the United States of America in same day or immediately available funds to the
account designated by the Swing Line Lender pursuant to the Credit Agreement.
This Swing Line Note is the Swing Line Note referred to in, and evidences
Indebtedness incurred under, the Credit Agreement, to which reference is made
for a description of the security for this Swing Line Note and for a statement
of the terms and conditions on which the Borrower is permitted and required to
make prepayments and repayments of principal of the Indebtedness evidenced by
this Swing Line Note and on which such Indebtedness may be declared to be
immediately due and payable.
This Swing Line Note shall represent an amendment and restatement of, the
Swing Line
<PAGE>
Notes as defined in and issued under the Existing Credit Agreement (herein, the
"Existing Swing Line Note"), and the Indebtedness originally evidenced by the
Existing Swing Line Note which is now evidenced by this new amended and restated
Swing Line Note shall be a continuing Indebtedness, and nothing contained herein
shall be construed to deem the Existing Swing Line Note paid, or to release or
terminate any Lien or security interest given to secure the Existing Swing Line
Note, which Liens and security interests shall continue to secure such
Indebtedness as evidenced by this Swing Line Note.
All parties hereto, whether as makers, endorsers, or otherwise, severally
waive presentment for payment, demand, protest and notice of dishonor.
THIS NOTE HAS BEEN DELIVERED IN NEW YORK, NEW YORK AND SHALL BE DEEMED TO
BE A CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW
YORK.
DUANE READE
By Duane Reade Inc., a
general partner
By
Title:
By DRI I Inc., a general
partner
By
Title:
-28-
<PAGE>
SWING LINE LOANS AND PRINCIPAL PAYMENTS
================================================================================
Amount of Amount of Outstanding
Swing Line Principal Principal Notation
Date Loan Made Repaid Balance Total Made By
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
================================================================================
<PAGE>
EXHIBIT B-1
to Second Amended and Restated
Credit Agreement
BORROWING REQUEST
Fleet National Bank,
as Administrative Agent
1 Federal Street
Boston, Massachusetts 02211
Attention: Eric Vander Mel
DUANE READE
Ladies and Gentlemen:
This Borrowing Request is delivered to you pursuant to Section 2.3 of the
Second Amended and Restated Credit Agreement, dated as of March 17, 1999,
amending and restating in its entirety that certain Amended and Restated Credit
Agreement, dated as of September 11, 1998 (as amended prior to the Amendment
Effective Date) (as so amended and restated, and together with all amendments,
supplements, restatements and other modifications, if any, from time to time
thereafter made thereto, the "Credit Agreement"), among Duane Reade, a New York
general partnership (the "Borrower"), each of the Parent Guarantors named
therein, the various financial institutions as are or may become parties thereto
(the "Lenders"), DLJ Capital Funding, Inc., as Syndication Agent, Fleet National
Bank, as Administrative Agent and Credit Lyonnais New York Branch, as
Documentation Agent. Unless otherwise defined herein or the context otherwise
requires, terms used herein have the meanings provided in the Credit Agreement.
The Borrower hereby requests that [a Revolving Loan] [an Additional Term C
Loan] [Swing Line Loan] be made in the aggregate principal amount of
$___________ on ______ __, ____ as a LIBO Rate Loan having an Interest Period of
[1] [2] [3] [6] months] [Base Rate Loan]*.
- --------
* Swing Line Loans may only be requested and maintained as Base Rate Loans.
<PAGE>
The Borrower hereby acknowledges that, pursuant to Section 5.2.2 of the
Credit Agreement, each of the delivery of this Borrowing Request and the
acceptance by the Borrower of the proceeds of the Loans requested hereby
constitutes a representation and warranty by the Borrower that, on the date of
the making of such Loans, and before and after giving effect thereto and to the
application of the proceeds therefrom, all statements set forth in Section 5.2.1
are true and correct in all material respects.
The Borrower agrees that if prior to the time of the Borrowing requested
hereby any matter certified to herein by it will not be true and correct at such
time as if then made, it will immediately so notify the Administrative Agent.
Except to the extent, if any, that prior to the time of the Borrowing requested
hereby the Administrative Agent shall receive written notice to the contrary
from the Borrower, each matter certified to herein shall be deemed once again to
be certified as true and correct at the date of such Borrowing as if then made.
Please wire transfer the proceeds of the Borrowing to the accounts of the
following persons at the financial institutions indicated respectively:
Person to be Paid
Amount to be ------------------------- Name, Address, etc.
Transferred Name Account No. of Transferee Lender
- ----------- ---- ----------- --------------------
$___________ ____________ ___________ ____________________
____________________
Attention: ____________________
$___________ ____________ ___________ ____________________
____________________
Attention: ____________________
Balance of The Borrower ___________ ____________________
such proceeds ____________________
Attention: ____________________
The Borrower has caused this Borrowing Request to be executed and
delivered, and the certification and warranties contained herein to be made, by
its duly Authorized Officer this ____ day of ________, ____.
DUANE READE
By Duane Reade Inc., a
general partner
By
-33-
<PAGE>
Title:
-34-
<PAGE>
EXHIBIT B-2
to Second Amended and Restated
Credit Agreement
ISSUANCE REQUEST
Fleet National Bank,
as Administrative Agent
1 Federal Street
Boston, Massachusetts 02211
Attention: Eric Vander Mel
Re: Second Amended and Restated Credit Agreement, dated as of March 17,
1999, amending and restating in its entirety that certain Amended
and Restated Credit Agreement, dated as of September 11, 1998 (as
amended prior to the Amendment Effective Date) (as so amended and
restated, and together with all amendments, supplements,
restatements and other modifications, if any, from time to time
thereafter made thereto, the "Credit Agreement"), among Duane Reade,
a New York general partnership (the "Borrower"), each of the Parent
Guarantors named therein, the various financial institutions as are
or may from time to time thereafter become parties thereto (the
"Lenders"), DLJ Capital Funding, Inc., as the Syndication Agent,
Fleet National Bank, as the Administrative Agent and Credit Lyonnais
New York Branch, as the Documentation Agent.
Ladies and Gentlemen:
This Issuance Request is delivered to you pursuant to Section 2.6 of the
Credit Agreement. Unless otherwise defined herein, terms used herein have the
meanings assigned to them in the Credit Agreement.
The Borrower hereby requests that on ________ __, ____ (the "Date of
Issuance") _______________ (the "Issuer") [issue a Letter of Credit in the
initial Stated Amount of $_______________ with a Stated Expiry Date (as defined
therein) of ________ __, ____] [extend the Stated Expiry Date (as defined under
Irrevocable Standby Letter of Credit No.__, issued on ________ __, ____, in the
initial Stated Amount of $______________) to a revised Stated Expiry Date (as
defined therein) of ________ __, ____].
<PAGE>
The beneficiary of the requested Letter of Credit will be _______________,
and such Letter of Credit will be in support of _______________________________.
The Borrower hereby acknowledges that, pursuant to Section 5.2.2 of the
Credit Agreement, each of the delivery of this Issuance Request and the
[issuance][extension] of the Letter of Credit requested hereby constitutes a
representation and warranty by the Borrower that, on such date of [issuance]
[extension] all statements set forth in Section 5.2.1 are true and correct in
all material respects.
The Borrower agrees that if, prior to the time of the [issuance]
[extension] of the Letter of Credit requested hereby, any matter certified to
herein by it will not be true and correct at such time as if then made, it will
immediately so notify the Administrative Agent. Except to the extent, if any,
that prior to the time of the issuance or extension requested hereby the
Administrative Agent shall receive written notice to the contrary from the
Borrower, each matter certified to herein shall be deemed to be certified at the
date of such issuance or extension.
IN WITNESS WHEREOF, the Borrower has caused this request to be executed
and delivered by its Authorized Officer this ____ day of ________, ____.
DUANE READE
By Duane Reade Inc., a
general partner
By
Title:
-36-
<PAGE>
EXHIBIT C
to Second Amended and Restated
Credit Agreement
CONTINUATION/CONVERSION NOTICE
Fleet National Bank,
as Administrative Agent
1 Federal Street
Boston, Massachusetts 02211
Attention: Eric Vander Mel
DUANE READE
Ladies and Gentlemen:
This Continuation/Conversion Notice is delivered to you pursuant to
Section 2.4 of that certain Second Amended and Restated Credit Agreement dated
as of March 17, 1999, amending and restating in its entirety that certain
Amended and Restated Credit Agreement, dated as of September 11, 1998 (as
amended prior to the Amendment Effective Date) (as so amended and restated, and
together with all amendments, supplements, restatements and other modifications,
if any, from time to time thereafter made thereto, the "Credit Agreement"),
among Duane Reade, a New York general partnership (the "Borrower"), each of the
Parent Guarantors named therein, the various financial institutions as are or
may become parties thereto, DLJ Capital Funding, Inc., as Syndication Agent,
Fleet National Bank, as Administrative Agent and Credit Lyonnais New York
Branch, as Documentation Agent. Unless otherwise defined herein or the context
otherwise requires, terms used herein have the meanings provided in the Credit
Agreement.
The Borrower hereby requests that on ________ __, ____ (the
"Continuation/Conversion Date"),
(1) $________ of the presently outstanding principal amount of the
[Revolving Loans] [Term A Loans] [Term B Loans] [Existing Term C Loans]
[Additional Term C Loans],
(2) all presently being maintained as [Base Rate Loans] [LIBO Rate
Loans with an Interest Period ending on the Continuation/Conversion Date],
<PAGE>
(3) be [converted into] [continued as],
(4) [LIBO Rate Loans having an Interest Period of [1] [2] [3] [6]
months] [Base Rate Loans].
The Borrower hereby:
(a) certifies and warrants that no Default has occurred and is
continuing; and
(b) agrees that if prior to the time of such continuation or
conversion any matter certified to herein by it will not be true and
correct at such time as if then made, it will immediately so notify the
Administrative Agent.
Except to the extent, if any, that prior to the time of the continuation or
conversion requested hereby the Administrative Agent shall receive written
notice to the contrary from the Borrower, each matter certified to herein shall
be deemed to be certified at the date of such continuation or conversion as if
then made.
The Borrower has caused this Continuation/Conversion Notice to be executed
and delivered, and the certification and warranties contained herein to be made,
by its Authorized Officer this ____ day of ________, ____.
DUANE READE
By Duane Reade Inc., a
general partner
By
Title:
-38-
<PAGE>
EXHIBIT J
to Second Amended and Restated
Credit Agreement
LENDER ASSIGNMENT AGREEMENT
To: Duane Reade
440 Ninth Avenue
New York, NY 10001
Attention: Bill Tennant
To: Fleet National Bank,
as Administrative Agent
1 Federal Street
Boston, MA 02211
Attention: Eric Vander Mel
To: DLJ Capital Funding, Inc.
as Syndication Agent
277 Park Avenue
New York, NY 10172
Attention: Tania Holman
DUANE READE
Ladies and Gentlemen:
We refer to clause (d) of Section 11.11.1 of the Second Amended and
Restated Credit Agreement dated as of March 17, 1999, amending and restating in
its entirety that certain Amended and Restated Credit Agreement, dated as of
September 11, 1998 (as amended prior to the Amendment Effective Date) (as so
amended and restated, and together with all amendments, supplements,
restatements and other modifications, if any, from time to time thereafter made
thereto, the "Credit Agreement"), among Duane Reade, a New York general
partnership (the
<PAGE>
"Borrower"), each of the Parent Guarantors named therein, the various financial
institutions as are or may become parties thereto (the "Lenders"), DLJ Capital
Funding, Inc., as Syndication Agent, Fleet National Bank, as Administrative
Agent and Credit Lyonnais New York Branch, as Documentation Agent. Unless
otherwise defined herein or the context otherwise requires, terms used herein
have the meanings provided in the Credit Agreement.
As of ________ __, ____ (the "Settlement Date"), ________ (the "Assignor")
hereby sells and assigns, without recourse, representation or warranty (except
as expressly set forth herein), to ________ (the "Assignee") and the Assignee
hereby purchases and assumes, the percentage of Loans and Commitments of the
Assignor (the "Assigned Share") such that after giving effect to the foregoing
assignment and delegation, the Assignor's and the Assignee's Percentages for the
purposes of the Credit Agreement will be as set forth opposite such Person's
name on Schedule I hereto.
[Add paragraph dealing with accrued interest and fees with respect to
Loans assigned.]
The Assignee hereby acknowledges and confirms that it has received a copy
of the Credit Agreement and the exhibits related thereto, together with copies
of the documents which were required to be delivered under the Credit Agreement
as a condition to the making of the Credit Extensions thereunder. The Assignee
further confirms and agrees that in becoming a Lender and in making its Loans
and Commitments under the Credit Agreement, such actions have and will be made
without recourse to, or representation or warranty by either Agent or the
Arranger.
The Assignee represents and warrants that it is legally authorized to
enter into and deliver this agreement and that this agreement constitutes, and,
upon acceptance hereof, the Credit Agreement and each other Loan Document to
which the Assignor was a party will constitute, a legal, valid and binding
obligation of the Assignee, and the Assignor confirms and agrees that it is the
legal and beneficial owner of the Assigned Share, free and clear of any adverse
claim created by it. Except as set forth in the previous sentence, the Assignor
makes no representation or warranty and assumes no responsibility with respect
to any statements, warranties or representations made pursuant to or in
connection with this agreement, or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of the Credit Agreement, any
other Loan Document or any other instrument or document furnished pursuant
hereto or thereto, including the financial condition of the Borrower or the
performance or observance by any Obligor or any Lender of any of its obligations
under the Credit Agreement, any other Loan Document or any other instrument or
document furnished pursuant hereto or thereto. The Assignee represents and
warrants and confirms that it has received copies of the most recent financial
statements delivered pursuant to [Section 3.1.10 of the Amendment Agreement]
Section 7.1.1 of the Credit Agreement and such other documents and information
as it has deemed appropriate to make its own credit analysis and decision to
enter into this agreement. In addition, the Assignee, independently and without
reliance upon the Assignor, any other Lender, either Agent or the Arranger, and
based on such documents and information as it shall deem
-40-
<PAGE>
appropriate at the time, shall continue to make its own credit decisions in
taking or not taking action under the Credit Agreement, the other Loan Documents
and the other instruments and documents delivered in connection therewith.
Except as otherwise provided in the Credit Agreement, effective as of the
date of acceptance hereof by the Administrative Agent
(a) the Assignee
(i) shall be deemed automatically to have become a party to
the Credit Agreement, have all the rights and obligations of a
"Lender" under the Credit Agreement and the other Loan Documents as
if it were an original signatory thereto to the extent specified in
the second paragraph hereof; and
(ii) agrees to be bound by the terms and conditions set forth
in the Credit Agreement and the other Loan Documents as if it were
an original signatory thereto (and expressly makes the appointment
set forth in, and agrees to the obligations imposed under, Article X
of the Credit Agreement); and
(b) the Assignor shall be released from its obligations under the
Credit Agreement and the other Loan Documents to the extent specified in
the second paragraph hereof.
The Assignor and the Assignee hereby agree that the Assignor will pay to
the Administrative Agent the processing fee referred to in Section 11.11.1 of
the Credit Agreement upon the delivery hereof.
The Assignee hereby advises each of you that set forth in Schedule I
hereto are its administrative details with respect to the assigned Loans and
Commitments and requests the Administrative Agent and the Borrower to
acknowledge receipt of this document.
The Assignee agrees to furnish the tax form required by Section 4.6 (if so
required) of the Credit Agreement no later than the date of acceptance hereof by
the Administrative Agent.
This agreement shall become effective on the date (the "Effective Date")
as of which all of the following conditions are satisfied: (i) the execution of
a counterpart hereof by each of the Assignor and the Assignee, (ii) to the
extent required under Section 11.11.1 of the Credit Agreement, the execution of
a counterpart hereof by each of the Agents, the Issuer and the Borrower, as
evidence of such Person's consent hereto, (iii) the receipt by the
Administrative Agent of the processing fee referred to in Section 11.11.1 of the
Credit Agreement and (iv) the receipt by the Administrative Agent of originals
or facsimiles of the counterparts described above and authorization of delivery
thereof.
-41-
<PAGE>
This Agreement may be executed by the Assignor and Assignee and the other
signatories hereto in separate counterparts, each of which when so executed and
delivered shall be deemed to be an original and all of which taken together
shall constitute one and the same agreement.
-42-
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this agreement to be
duly executed and delivered by their respective authorized officers.
_________________________,
as Assignor
By: ________________________________
Name:
Title:
_________________________,
as Assignee
By: ________________________________
Name:
Title:
-43-
<PAGE>
Accepted and Acknowledged
this ____ day of ________, ____
DLJ CAPITAL FUNDING, INC.,
as Syndication Agent
By: ______________________________
Name:
Title:
[FLEET NATIONAL BANK,
as Administrative Agent
By: ______________________________
Name:
Title:]
[FLEET NATIONAL BANK,
as Issuer
By: ______________________________
Name:
Title:]
[DUANE READE
By Duane Reade Inc., a general partner
By: ______________________________
Name:
Title:]
-44-
<PAGE>
SCHEDULE I
LENDER INFORMATION
<TABLE>
<CAPTION>
LENDER PERCENTAGE DOMESTIC OFFICE LIBOR OFFICE
- ------ ---------- --------------- ------------
<S> <C> <C> <C>
_______________, Revolving Loans, participations ON FILE WITH ON FILE WITH
as Assignor in Letters of Credit Outstandings, ADMINISTRATIVE ADMINISTRATIVE
and Revolving Loan Commitment __________% AGENT AGENT
Term A Loans __________%
Term B Loans __________%
Term C Loans __________%
August 1998 Term C Loans __________%
September 1998 Term C Loans __________%
Additional Term C Loans __________%
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C> <C>
_______________, Revolving Loans, participations [ADDRESS] [ADDRESS]
as Assignee in Letters of Credit Outstandings, Fax:______________ Fax:______________
and Revolving Loan Commitment __________% Attention:________ Attention:________
Term A Loans __________%
Term B Loans __________%
Term C Loans __________%
August 1998 Term C Loans __________%
September 1998 Term C Loans __________%
Additional Term C Loans __________%
</TABLE>
Wiring Instructions for the Assignee:
_______________________
_______________________
_______________________
<PAGE>
EXHIBIT A-5
to Second Amended and Restated
Credit Agreement
SEPTEMBER 1998 TERM C NOTE
$_______________ March 17, 1999
FOR VALUE RECEIVED, the undersigned, DUANE READE, a New York general
partnership (the "Borrower"), promises to pay to the order of
____________________ (the "Lender") the principal sum of _________________
DOLLARS ($ ________) or, if less, the aggregate unpaid principal amount of all
Additional Term C Loans shown on the schedule attached hereto (and any
continuation thereof) made by the Lender pursuant to that certain Second Amended
and Restated Credit Agreement, dated as of March 17, 1999, amending and
restating in its entirety that certain Amended and Restated Credit Agreement,
dated as of September 11, 1998 (as amended prior to the Amendment Effective
Date) (as so amended and restated, and together with all amendments,
supplements, restatements and other modifications, if any, from time to time
thereafter made thereto, the "Credit Agreement"), among the Borrower, each of
the Parent Guarantors named therein, the various financial institutions
(including the Lender) as are or may become parties thereto, DLJ Capital
Funding, Inc., as Syndication Agent, Fleet National Bank, as Administrative
Agent and Credit Lyonnais New York Branch, as Documentation Agent, payable in
installments as set forth in the Credit Agreement, with a final installment (in
the amount necessary to pay in full this Note) due and payable on the Stated
Maturity Date.
The Borrower also promises to pay interest on the unpaid principal amount
hereof from time to time outstanding from the date hereof until maturity
(whether by acceleration or otherwise) and, after maturity, until paid, at the
rates per annum and on the dates specified in the Credit Agreement.
Payments of both principal and interest are to be made in lawful money of
the United States of America in same day or immediately available funds to the
account designated by the Administrative Agent pursuant to the Credit Agreement.
This Note is one of the September 1998 Term C Notes referred to in, and
evidences Indebtedness incurred under, the Credit Agreement, to which reference
is made for a description of the security for this Note and for a statement of
the terms and conditions on which the Borrower is permitted and required to make
prepayments and repayments of principal of the Indebtedness evidenced by this
Note and on which such Indebtedness may be declared to be immediately due and
payable. Unless otherwise defined, terms used herein have the meanings provided
in the Credit Agreement.
<PAGE>
This September 1998 Term C Note and the other September 1998 Term C Notes
shall represent an amendment and restatement of, the Additional Term C Notes as
defined in and issued under the Existing Credit Agreement (herein, the "Original
Term C Notes"), and the Indebtedness originally evidenced by the Original Term C
Notes which is now evidenced by this new amended and restated September 1998
Term C Note and the other September 1998 Term C Notes shall be a continuing
Indebtedness, and nothing contained herein or in such other September 1998 Term
C Notes shall be construed to deem the Original Term C Notes paid, or to release
or terminate any Lien or security interest given to secure the Original Term C
Notes, which Liens and security interests shall continue to secure such
Indebtedness as evidenced by this September 1998 Term C Note and such other
September 1998 Term C Notes.
All parties hereto, whether as makers, endorsers, or otherwise, severally
waive presentment for payment, demand, protest and notice of dishonor.
<PAGE>
THIS NOTE HAS BEEN DELIVERED IN NEW YORK, NEW YORK AND SHALL BE DEEMED TO
BE A CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW
YORK.
DUANE READE
By Duane Reade Inc., a
general partner
By
Title:
By DRI I Inc., a general
partner
By
Title:
<PAGE>
ADDITIONAL TERM C LOANS AND PRINCIPAL PAYMENTS
<TABLE>
<CAPTION>
====================================================================================================================================
Amount of Interest Amount of
Additional Term C Period Principal Unpaid Principal Notation
Date Loan Made (If Applicable) Repaid Balance Total Made By
- ---- ----------------- --------------- ------------------ ------------------ ----- -------
Base LIBO Base LIBO Base LIBO
Rate Rate Rate Rate Rate Rate
---- ---- ---- ---- ---- ----
====================================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
====================================================================================================================================
</TABLE>
<PAGE>
EXHIBIT A-6
to Second Amended and Restated
Credit Agreement
ADDITIONAL TERM C NOTE
$_______________ March 17, 1999
FOR VALUE RECEIVED, the undersigned, DUANE READE, a New York general
partnership (the "Borrower"), promises to pay to the order of
____________________ (the "Lender") the principal sum of _________________
DOLLARS ($ ________) or, if less, the aggregate unpaid principal amount of all
Additional Term C Loans shown on the schedule attached hereto (and any
continuation thereof) made by the Lender pursuant to that certain Second Amended
and Restated Credit Agreement, dated as of March 17, 1999, amending and
restating in its entirety that certain Amended and Restated Credit Agreement,
dated as of September 11, 1998 (as amended prior to the Amendment Effective
Date) (as so amended and restated, and together with all amendments,
supplements, restatements and other modifications, if any, from time to time
thereafter made thereto, the "Credit Agreement"), among the Borrower, each of
the Parent Guarantors named therein, the various financial institutions
(including the Lender) as are or may become parties thereto, DLJ Capital
Funding, Inc., as Syndication Agent, Fleet National Bank, as Administrative
Agent and Credit Lyonnais New York Branch, as Documentation Agent, payable in
installments as set forth in the Credit Agreement, with a final installment (in
the amount necessary to pay in full this Note) due and payable on the Stated
Maturity Date.
The Borrower also promises to pay interest on the unpaid principal amount
hereof from time to time outstanding from the date hereof until maturity
(whether by acceleration or otherwise) and, after maturity, until paid, at the
rates per annum and on the dates specified in the Credit Agreement.
Payments of both principal and interest are to be made in lawful money of
the United States of America in same day or immediately available funds to the
account designated by the Administrative Agent pursuant to the Credit Agreement.
This Note is one of the Additional Term C Notes referred to in, and
evidences Indebtedness incurred under, the Credit Agreement, to which reference
is made for a description of the security for this Note and for a statement of
the terms and conditions on which the Borrower is permitted and required to make
prepayments and repayments of principal of the Indebtedness evidenced by this
Note and on which such Indebtedness may be declared to be immediately due and
payable. Unless otherwise defined, terms used herein have the meanings provided
in the Credit Agreement.
<PAGE>
All parties hereto, whether as makers, endorsers, or otherwise, severally
waive presentment for payment, demand, protest and notice of dishonor.
<PAGE>
THIS NOTE HAS BEEN DELIVERED IN NEW YORK, NEW YORK AND SHALL BE DEEMED TO
BE A CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW
YORK.
DUANE READE
By Duane Reade Inc., a
general partner
By
Title:
By DRI I Inc., a general
partner
By
Title:
<PAGE>
ADDITIONAL TERM C LOANS AND PRINCIPAL PAYMENTS
<TABLE>
<CAPTION>
====================================================================================================================================
Amount of Interest Amount of
Additional Term C Period Principal Unpaid Principal Notation
Date Loan Made (If Applicable) Repaid Balance Total Made By
- ---- ----------------- --------------- ------------------ ------------------ ----- -------
Base LIBO Base LIBO Base LIBO
Rate Rate Rate Rate Rate Rate
---- ---- ---- ---- ---- ----
====================================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
====================================================================================================================================
</TABLE>
<PAGE>
[EXECUTION COPY]
AMENDMENT EFFECTIVE DATE CERTIFICATE
Duane Reade Inc.
This certificate is delivered pursuant to Section 3.1.4 of the Amendment
Agreement defined in the Second Amended and Restated Credit Agreement, dated as
of March 17, 1999, amending and restating in its entirety that certain Amended
and Restated Credit Agreement, dated as of September 11, 1998 (as amended prior
to the Amendment Effective Date) (as so amended and restated or otherwise
modified, and together with all amendments, supplements, restatements and other
modifications, if any, from time to time thereafter made thereto, the "Credit
Agreement"), among Duane Reade, a New York general partnership (the "Borrower"),
each of the Parent Guarantors (including Duane Reade Inc., a Delaware
corporation ("Holdings")) named therein, the various financial institutions as
are or may become parties thereto (collectively, the "Lenders"), DLJ Capital
Funding, Inc., as Syndication Agent, Fleet National Bank, as Administrative
Agent and Credit Lyonnais New York Branch, as Documentation Agent. Unless
otherwise defined herein, terms used herein have the meanings assigned to them
in the Credit Agreement.
The undersigned hereby certifies, represents and warrants that, as of the
Amendment Effective Date:
1. Financial Information, etc. Attached hereto as Annex I are true
and complete copies of (a) the (i) audited consolidated financial
statements of (A) Holdings and its Subsidiaries and Daboco and its
Subsidiaries for the Fiscal Years ended on December 30, 1995, December 28,
1996 and December 27, 1997 and (B) Rock Bottom and its Subsidiaries for
the Fiscal Years ended on January 31, 1996, January 31, 1997 and January
31, 1998, (ii) unaudited consolidated financial statements of (A) Holdings
and its Subsidiaries and Daboco and its Subsidiaries for the Fiscal
Quarters ended on March 28, 1998, June 27, 1998, September 26, 1998 and
December 26, 1998 and (B) Rock Bottom and its Subsidiaries for the Fiscal
Quarters ended on April 30, 1998 and (iii) an unaudited consolidated
financial statement of Holdings and its Subsidiaries and Borrower and its
Subsidiaries for the fiscal month ended on January 23, 1999 (the "Base
Financial Statements"); and (b) a pro forma consolidated balance sheets of
Holdings and its Subsidiaries and the Borrower and its Subsidiaries, as at
December 26, 1998 (the "Pro Forma Balance Sheets"), certified by the chief
financial or accounting Authorized Officers of Holdings and the Borrower,
respectively, giving effect to the consummation of the New Transaction.
2. Litigation. There is no pending or threatened material
litigation, proceedings
<PAGE>
or investigations which (x) contests the consummation of the New
Transaction or the legality or validity of the Credit Agreement, any other
Loan Document or any Material Document or (y) could reasonably be expected
to have a Material Adverse Effect.
3. Material Adverse Effect. Except as set forth in Item 6.6
("Material Adverse Change") of the Disclosure Schedule, there has occurred
no material adverse change in the business, assets, debt service capacity,
tax position, environmental liability, financial condition, operations,
properties or prospects of Holdings and its Subsidiaries, taken as a
whole, since December 27, 1997.
4. Approvals. All necessary governmental, shareholders' and
third-party approvals in connection with the New Transaction, the
financing contemplated hereby, the continued operations of Holdings, DRI
I, the Borrower and each of their respective Subsidiaries and the
execution, delivery and performance of the Credit Agreement and the other
Loan Documents has been duly obtained and all applicable waiting periods
have expired without, in all such cases, any action being taken or
threatened by any competent authority that would restrain, prevent or
otherwise impose adverse conditions on the New Transaction, the financing
contemplated hereby or the continued operations of Holdings, DRI I, the
Borrower or any of their respective Subsidiaries.
5. Rock Bottom Subsidiaries. The Rock Bottom Subsidiaries have been
dissolved and attached hereto as Annex II are certificates of dissolution
that were filed with the Secretary of State of the applicable state of
incorporation of each such Rock Bottom Subsidiary confirming such
dissolution.
6. Warranties, No Default, etc. On the Amendment Effective Date,
immediately after giving effect to the New Transaction, the following
statements are true and correct:
(a) The execution, delivery and performance by each of the Borrower,
each Parent Guarantor and each of their respective Subsidiaries of this
Amendment Agreement, the Credit Agreement, the Notes and each other Loan
Document executed or to be executed by it are within the Borrower's and
each such Obligor's corporate or partnership powers, have been duly
authorized by all necessary corporate or partnership action, and do not
(i) contravene the Borrower's or any such Obligor's Organic Documents,
(ii) contravene any contractual restriction, law or governmental
regulation or court decree or order binding on or affecting the Borrower
or any such Obligor, or (iii) result in, or require the creation or
imposition of, any Lien on any of the Borrower's or any other Obligor's
properties, except pursuant to the terms of a Loan Document.
(b) No authorization or approval or other action by, and no notice
to or filing with, any governmental authority or regulatory body or other
Person, is required for the due execution, delivery or performance by any
of the Borrower, any Parent Guarantor or
-2-
<PAGE>
any of their respective Subsidiaries of this Amendment Agreement, the
Credit Agreement, the Notes, any other Loan Document to which it is a
party, except as have been duly obtained or made and are in full force and
effect.
(c) This Amendment Agreement and the Credit Agreement constitute,
and the Notes and each other Loan Document executed, or to be executed, by
any of the Borrower, any Parent Guarantor or any of their respective
Subsidiaries, as the case may be, constitutes, or will on the due
execution and delivery thereof constitute, the legal, valid and binding
obligations of the Borrower and such other Obligor enforceable in
accordance with their respective terms.
(d) After giving effect to this Amendment Agreement, neither the
amendment and restatement of the Existing Credit Agreement effected
pursuant to this Amendment Agreement nor the execution, delivery,
performance or effectiveness of this Amendment Agreement, the Credit
Agreement or any Loan Document impairs the validity, effectiveness or
priority of the Liens granted pursuant to each Pledge Agreement and each
Security Agreement (as such terms are defined in the Existing Credit
Agreement, collectively, the "Security Documents"), and such Liens
continue unimpaired with the same priority to secure repayment of all
Obligations (including any Obligations arising in connection with the
making of the Additional Term C Loan Commitments or the Additional Term C
Loans), whether heretofore or hereafter incurred. Neither the amendment
and restatement of the Existing Credit Agreement effected pursuant to this
Amendment Agreement nor the execution, delivery, performance or
effectiveness of this Amendment Agreement or the Credit Agreement requires
that any new filings be made or other action taken to perfect or to
maintain the perfection of such Liens. Under the foregoing circumstances,
the position of the Lenders with respect to such Liens, the Collateral (as
defined in the Security Documents) in which a security interest was
granted pursuant to the Security Documents, and the ability of the
Administrative Agent to realize upon such Liens pursuant to the terms of
the Security Documents have not been adversely affected in any material
respect by the amendment and restatement of the Existing Credit Agreement
effected pursuant to this Amendment Agreement or by the execution,
delivery, performance or effectiveness of this Amendment Agreement or the
Credit Agreement.
(e) Both before and immediately after giving effect to this
Amendment Agreement, no Default has (or will have) occurred and is (or
will be) continuing, and all of the statements set forth in Section 5.2.1
of the Credit Agreement are true and correct.
-3-
<PAGE>
IN WITNESS WHEREOF, the undersigned has caused this Certificate to be
executed and delivered, and the certification, representations and warranties
contained herein to be made, by its duly Authorized Officer this 17th day of
March, 1999.
DUANE READE INC.
By:
Name: William J. Tennant
Title: Senior Vice President
<PAGE>
[EXECUTION COPY]
AMENDMENT EFFECTIVE DATE CERTIFICATE
Duane Reade Inc.
This certificate is delivered pursuant to Section 3.1.4 of the Amendment
Agreement defined in the Second Amended and Restated Credit Agreement, dated as
of March 17, 1999, amending and restating in its entirety that certain Amended
and Restated Credit Agreement, dated as of September 11, 1998 (as amended prior
to the Amendment Effective Date) (as so amended and restated or otherwise
modified, and together with all amendments, supplements, restatements and other
modifications, if any, from time to time thereafter made thereto, the "Credit
Agreement"), among Duane Reade, a New York general partnership (the "Borrower"),
each of the Parent Guarantors (including Duane Reade Inc., a Delaware
corporation ("Holdings")) named therein, the various financial institutions as
are or may become parties thereto (collectively, the "Lenders"), DLJ Capital
Funding, Inc., as Syndication Agent, Fleet National Bank, as Administrative
Agent and Credit Lyonnais New York Branch, as Documentation Agent. Unless
otherwise defined herein, terms used herein have the meanings assigned to them
in the Credit Agreement.
The undersigned hereby certifies, represents and warrants that, as of the
Amendment Effective Date:
1. Financial Information, etc. Attached hereto as Annex I are true
and complete copies of (a) the (i) audited consolidated financial
statements of (A) Holdings and its Subsidiaries and Daboco and its
Subsidiaries for the Fiscal Years ended on December 30, 1995, December 28,
1996 and December 27, 1997 and (B) Rock Bottom and its Subsidiaries for
the Fiscal Years ended on January 31, 1996, January 31, 1997 and January
31, 1998, (ii) unaudited consolidated financial statements of (A) Holdings
and its Subsidiaries and Daboco and its Subsidiaries for the Fiscal
Quarters ended on March 28, 1998, June 27, 1998, September 26, 1998 and
December 26, 1998 and (B) Rock Bottom and its Subsidiaries for the Fiscal
Quarters ended on April 30, 1998 and (iii) an unaudited consolidated
financial statement of Holdings and its Subsidiaries and Borrower and its
Subsidiaries for the fiscal month ended on January 23, 1999 (the "Base
Financial Statements"); and (b) a pro forma consolidated balance sheets of
Holdings and its Subsidiaries and the Borrower and its Subsidiaries, as at
December 26, 1998 (the "Pro Forma Balance Sheets"), certified by the chief
financial or accounting Authorized Officers of Holdings and the Borrower,
respectively, giving effect to the consummation of the New Transaction.
2. Litigation. There is no pending or threatened material
litigation, proceedings
<PAGE>
or investigations which (x) contests the consummation of the New
Transaction or the legality or validity of the Credit Agreement, any other
Loan Document or any Material Document or (y) could reasonably be expected
to have a Material Adverse Effect.
3. Material Adverse Effect. Except as set forth in Item 6.6
("Material Adverse Change") of the Disclosure Schedule, there has occurred
no material adverse change in the business, assets, debt service capacity,
tax position, environmental liability, financial condition, operations,
properties or prospects of Holdings and its Subsidiaries, taken as a
whole, since December 27, 1997.
4. Approvals. All necessary governmental, shareholders' and
third-party approvals in connection with the New Transaction, the
financing contemplated hereby, the continued operations of Holdings, DRI
I, the Borrower and each of their respective Subsidiaries and the
execution, delivery and performance of the Credit Agreement and the other
Loan Documents has been duly obtained and all applicable waiting periods
have expired without, in all such cases, any action being taken or
threatened by any competent authority that would restrain, prevent or
otherwise impose adverse conditions on the New Transaction, the financing
contemplated hereby or the continued operations of Holdings, DRI I, the
Borrower or any of their respective Subsidiaries.
5. Rock Bottom Subsidiaries. The Rock Bottom Subsidiaries have been
dissolved and attached hereto as Annex II are certificates of dissolution
that were filed with the Secretary of State of the applicable state of
incorporation of each such Rock Bottom Subsidiary confirming such
dissolution.
6. Warranties, No Default, etc. On the Amendment Effective Date,
immediately after giving effect to the New Transaction, the following
statements are true and correct:
(a) The execution, delivery and performance by each of the Borrower,
each Parent Guarantor and each of their respective Subsidiaries of this
Amendment Agreement, the Credit Agreement, the Notes and each other Loan
Document executed or to be executed by it are within the Borrower's and
each such Obligor's corporate or partnership powers, have been duly
authorized by all necessary corporate or partnership action, and do not
(i) contravene the Borrower's or any such Obligor's Organic Documents,
(ii) contravene any contractual restriction, law or governmental
regulation or court decree or order binding on or affecting the Borrower
or any such Obligor, or (iii) result in, or require the creation or
imposition of, any Lien on any of the Borrower's or any other Obligor's
properties, except pursuant to the terms of a Loan Document.
(b) No authorization or approval or other action by, and no notice
to or filing with, any governmental authority or regulatory body or other
Person, is required for the due execution, delivery or performance by any
of the Borrower, any Parent Guarantor or
-2-
<PAGE>
any of their respective Subsidiaries of this Amendment Agreement, the
Credit Agreement, the Notes, any other Loan Document to which it is a
party, except as have been duly obtained or made and are in full force and
effect.
(c) This Amendment Agreement and the Credit Agreement constitute,
and the Notes and each other Loan Document executed, or to be executed, by
any of the Borrower, any Parent Guarantor or any of their respective
Subsidiaries, as the case may be, constitutes, or will on the due
execution and delivery thereof constitute, the legal, valid and binding
obligations of the Borrower and such other Obligor enforceable in
accordance with their respective terms.
(d) After giving effect to this Amendment Agreement, neither the
amendment and restatement of the Existing Credit Agreement effected
pursuant to this Amendment Agreement nor the execution, delivery,
performance or effectiveness of this Amendment Agreement, the Credit
Agreement or any Loan Document impairs the validity, effectiveness or
priority of the Liens granted pursuant to each Pledge Agreement and each
Security Agreement (as such terms are defined in the Existing Credit
Agreement, collectively, the "Security Documents"), and such Liens
continue unimpaired with the same priority to secure repayment of all
Obligations (including any Obligations arising in connection with the
making of the Additional Term C Loan Commitments or the Additional Term C
Loans), whether heretofore or hereafter incurred. Neither the amendment
and restatement of the Existing Credit Agreement effected pursuant to this
Amendment Agreement nor the execution, delivery, performance or
effectiveness of this Amendment Agreement or the Credit Agreement requires
that any new filings be made or other action taken to perfect or to
maintain the perfection of such Liens. Under the foregoing circumstances,
the position of the Lenders with respect to such Liens, the Collateral (as
defined in the Security Documents) in which a security interest was
granted pursuant to the Security Documents, and the ability of the
Administrative Agent to realize upon such Liens pursuant to the terms of
the Security Documents have not been adversely affected in any material
respect by the amendment and restatement of the Existing Credit Agreement
effected pursuant to this Amendment Agreement or by the execution,
delivery, performance or effectiveness of this Amendment Agreement or the
Credit Agreement.
(e) Both before and immediately after giving effect to this
Amendment Agreement, no Default has (or will have) occurred and is (or
will be) continuing, and all of the statements set forth in Section 5.2.1
of the Credit Agreement are true and correct.
-3-
<PAGE>
IN WITNESS WHEREOF, the undersigned has caused this Certificate to be
executed and delivered, and the certification, representations and warranties
contained herein to be made, by its duly Authorized Officer this 17th day of
March, 1999.
DUANE READE INC.
By:
Name: William J. Tennant
Title: Senior Vice President
<PAGE>
EXHIBIT E
to Second Amended and Restated
Credit Agreement
COMPLIANCE CERTIFICATE
Duane Reade Inc.
This Compliance Certificate is delivered pursuant to clause (d) of Section
7.1.1 of the Second Amended and Restated Credit Agreement, dated as of March 17,
1999, amending and restating in its entirety that certain Amended and Restated
Credit Agreement, dated as of September 11, 1998 (as amended prior to the
Amendment Effective Date) (as so amended and restated; and together with all
amendments, supplements, restatements and other modifications, if any, from time
to time thereafter made thereto, the "Credit Agreement"), among Duane Reade, a
New York general partnership (the "Borrower"), Duane Reade Inc., a Delaware
corporation ("Holdings"), DRI I Inc., a Delaware corporation ("DRI I" and,
together with Holdings, collectively, the "Parent Guarantors"), the various
financial institutions as are, or may from time to time become, parties thereto
as Lenders, DLJ Capital Funding, Inc., as Syndication Agent, Fleet National
Bank, as Administrative Agent and Credit Lyonnais New York Branch, as
Documentation Agent. Unless otherwise defined herein or the context otherwise
requires, terms used herein or in any of the attachments hereto have the
meanings provided in the Credit Agreement.
Holdings hereby certifies, represents and warrants in respect of the
period (the "Computation Period") commencing on ________ __ ____, and ending on
________ __ ____ (such latter date being the "Computation Date") that as of the
Computation Date:
(a) No Default had occurred and was continuing[, except [for
__________] [and] [as specified below]].
*[(b) The Net Worth was $____________. The minimum Net Worth
permitted pursuant to clause (a) of Section 7.2.4 of the Credit Agreement
on the Computation Date, as computed on Attachment 1 hereto, was
$____________.]
(c) The Leverage Ratio was ________, as computed on
- --------
* To be included if the Computation Date is on or after the last day of the 1998
Fiscal Year.
<PAGE>
Attachment 2 hereto. The maximum Leverage Ratio permitted pursuant to
clause (b) of Section 7.2.4 of the Credit Agreement on the Computation
Date was ________.
(d) The Interest Coverage Ratio was ________, as computed on
Attachment 3 hereto. The minimum Interest Coverage Ratio permitted
pursuant to clause (c) of Section 7.2.4 of the Credit Agreement on the
Computation Date was ________.
(e) The Fixed Charge Coverage Ratio was ________, as computed on
Attachment 4 hereto. The minimum Fixed Charge Coverage Ratio permitted
pursuant to clause (d) of Section 7.2.4 of the Credit Agreement on the
Computation Date was ________.
The Equipment and Inventory of each Grantor (as each such term is defined
in each Security Agreement) is located as indicated on Item A of Attachment 5
hereto or as set forth on the relevant Item of the relevant Security Agreement
or in a previous Compliance Certificate.
The chief executive office and principal place of business of each Parent
Guarantor, the Borrower and each of their respective Subsidiaries is located as
indicated on Item B of Attachment 5 hereto or as set forth on the relevant Item
of the relevant Security Agreement or in a previous Compliance Certificate.
None of the Parent Guarantors, the Borrower and their respective
Subsidiaries have changed their legal name, used any tradename (except as listed
in the relevant Security Agreement) or been the subject of any merger or other
corporate reorganization except (i) as indicated on Item C of Attachment 5
hereto, (ii) as set forth on the relevant Item of the relevant Security
Agreement or (iii) as set forth in a previous Compliance Certificate.
IN WITNESS WHEREOF, Holdings has caused this Compliance Certificate to be
executed and delivered, and the certification and warranties contained herein to
be made, by its chief [financial] [accounting] Authorized Officer on this ____
day of ________, ____.
DUANE READE INC.
By ____________________________
Title:
-2-
<PAGE>
Attachment 1
(to __/__/__ Compliance
Certificate)
NET WORTH
on ___________
(the "Computation Date")
Net Worth:
================================================================================
1. The cumulative Net Income (the net income of Holdings $_____________
and its Subsidiaries on a consolidated basis,
excluding extraordinary and non-recurring gains and
extraordinary losses incurred in connection with the
Transaction) for the period from the first day of the
1998 Fiscal Year to the Computation Date
================================================================================
2. MINIMUM NET WORTH: The amount which is 50% of Item 1 $_____________
================================================================================
<PAGE>
Attachment 2
(to __/__/__ Compliance
Certificate)
LEVERAGE RATIO*
on ___________
(the "Computation Date")
Leverage Ratio:
================================================================================
1. Total Debt of Holdings and its Subsidiaries on a $_____________
consolidated basis outstanding on the Computation Date
================================================================================
2. EBITDA: the sum (without duplication) of:
================================================================================
- --------
* For purposes of calculating the Leverage Ratio, the ratio shall be calculated
giving pro forma effect to any acquisition, disposition, merger, consolidation
or discontinued operation (including any related financing transaction) made by
the Borrower or any of its Subsidiaries during the period comprised of the
Fiscal Quarters that are the subject of such calculation as if such acquisition,
disposition, merger, consolidation or discontinued operation (including such
related financing transaction) had been made at the beginning of such period.
Not in limitation of the immediately preceding sentence but in furtherance
thereof, for purposes of such calculation, EBITDA for such period shall be
calculated to (i) include the EBITDA (adjusted to exclude the cost of any
compensation, remuneration or other benefit paid or provided to any employee,
consultant, Affiliate or equity owner of the acquired entities to the extent
such costs are eliminated and not replaced and as determined in good faith by
the chief financial or accounting Authorized Officer of Holdings) attributable
to any business or assets acquired by the Borrower or any of its Subsidiaries
utilizing the actual revenues attributable to such business or assets for such
and the expenses that would have been attributable to such business or assets
had the Borrower acquired such business or assets at the beginning of such
period and (ii) exclude the EBITDA attributable to discontinued operations, as
determined in accordance with GAAP, and operations, businesses and assets
disposed of prior to the end of such period from such calculation, in each case,
as determined in good faith by the signatory hereto.
<PAGE>
================================================================================
(a) Net Income (the net income of Holdings and its $_____________
Subsidiaries for the Computation Period on a
consolidated basis, excluding extraordinary and
non-recurring gains and extraordinary losses
incurred in connection with the Transaction)
================================================================================
(b) The amount deducted in determining Net Income $_____________
representing non-cash charges, including
depreciation, amortization and deferred rent
================================================================================
(c) The amount deducted in determining Net Income $_____________
representing income taxes (whether actually paid
or deferred)
================================================================================
(d) The amount deducted in determining Net Income $_____________
representing Interest Expense (the aggregate
consolidated interest expense of Holdings and
its Subsidiaries for the Computation Period, as
determined in accordance with GAAP, including
the portion of any payments made in respect of
Capitalized Lease Liabilities allocable to
interest expense)
================================================================================
(e) The amount deducted in determining Net Income $_____________
representing extraordinary or non-recurring
expenses
================================================================================
(f) The amount of all extraordinary or non-recurring $_____________
non- cash credits included in determining Net
Income
================================================================================
(g) EBITDA: The sum of Items 2(a) through 2(e) minus $_____________
Item 2(f)
================================================================================
3. LEVERAGE RATIO: ratio of Item 1 to Item 2(g) ____:1
================================================================================
<PAGE>
Attachment 3
(to __/__/__ Compliance
Certificate)
INTEREST COVERAGE RATIO*
on ___________
(the "Computation Date")
Interest Coverage Ratio:
================================================================================
1. EBITDA (see Item 2(g) of Attachment 2) $_____________
================================================================================
- --------
* For purposes of calculating the Interest Coverage Ratio, the ratio shall be
calculated giving pro forma effect to any acquisition, disposition, merger,
consolidation or discontinued operation (including any related financing
transaction) made by the Borrower or any of its Subsidiaries during the period
comprised of the Fiscal Quarters that are the subject of such calculation as if
such acquisition, disposition, merger, consolidation or discontinued operation
(including such related financing transaction) had been made at the beginning of
such period. Not in limitation of the immediately preceding sentence but in
furtherance thereof, for purposes of such calculation, EBITDA for such period
shall be calculated to (i) include the EBITDA (adjusted to exclude the cost of
any compensation, remuneration or other benefit paid or provided to any
employee, consultant, Affiliate or equity owner of the acquired entities to the
extent such costs are eliminated and not replaced and as determined in good
faith by the chief financial or accounting Authorized Officer of Holdings)
attributable to any business or assets acquired by the Borrower or any of its
Subsidiaries utilizing the actual revenues attributable to such business or
assets for such and the expenses that would have been attributable to such
business or assets had the Borrower acquired such business or assets at the
beginning of such period and (ii) exclude the EBITDA attributable to
discontinued operations, as determined in accordance with GAAP, and operations,
businesses and assets disposed of prior to the end of such period from such
calculation, in each case, as determined in good faith by the signatory hereto.
<PAGE>
================================================================================
2. The cash portion of Interest Expense (the aggregate $_____________
consolidated interest expense of Holdings and its
Subsidiaries for the Computation Period, as determined
in accordance with GAAP, including the portion of any
payments made in respect of Capitalized Lease
Liabilities allocable to interest expense) (for the
Computation Period)
================================================================================
3. INTEREST COVERAGE RATIO: ratio of Item 1 to Item 2 ____:1
================================================================================
<PAGE>
Attachment 4
(to __/__/__ Compliance
Certificate)
FIXED CHARGE COVERAGE RATIO*
on ___________
(the "Computation Date")
Fixed Charge Coverage Ratio:
================================================================================
1. EBITDA (see Item 2(g) of Attachment 2) $_____________
================================================================================
- --------
* For purposes of calculating the Fixed Charge Coverage Ratio, the ratio shall
be calculated giving pro forma effect to any acquisition, disposition, merger,
consolidation or discontinued operation (including any related financing
transaction) made by the Borrower or any of its Subsidiaries during the period
comprised of the Fiscal Quarters that are the subject of such calculation as if
such acquisition, disposition, merger, consolidation or discontinued operation
(including such related financing transaction) had been made at the beginning of
such period. Not in limitation of the immediately preceding sentence but in
furtherance thereof, for purposes of such calculation, EBITDA for such period
shall be calculated to (i) include the EBITDA (adjusted to exclude the cost of
any compensation, remuneration or other benefit paid or provided to any
employee, consultant, Affiliate or equity owner of the acquired entities to the
extent such costs are eliminated and not replaced and as determined in good
faith by the chief financial or accounting Authorized Officer of Holdings)
attributable to any business or assets acquired by the Borrower or any of its
Subsidiaries utilizing the actual revenues attributable to such business or
assets for such and the expenses that would have been attributable to such
business or assets had the Borrower acquired such business or assets at the
beginning of such period and (ii) exclude the EBITDA attributable to
discontinued operations, as determined in accordance with GAAP, and operations,
businesses and assets disposed of prior to the end of such period from such
calculation, in each case, as determined in good faith by the signatory hereto.
<PAGE>
================================================================================
2. Capital Expenditures of the Borrower and its $_____________
Subsidiaries actually made during the Computation
Period pursuant to clause (a) of Section 7.2.7 of the
Credit Agreement (excluding Capital Expenditures of
Holdings and its Subsidiaries constituting Capitalized
Lease Liabilities and by way of the incurrence of
Indebtedness permitted pursuant to clause (e) of
Section 7.2.2 of the Credit Agreement to a vendor of
any assets permitted to be acquired pursuant to
Section 7.2.7 of the Credit Agreement to finance the
acquisition of such assets)
================================================================================
3. The cash portion of Interest Expense (net of cash $_____________
interest income) for the Computation Period
================================================================================
4. All scheduled payments of principal of the Term Loans $_____________
and other term Debt (including the principal component
of payments in respect of any Capital Lease
Liabilities) during the Computation Period
================================================================================
5. All federal, state and foreign income taxes paid or $_____________
payable in cash by Holdings and its Subsidiaries
during the Computation Period
================================================================================
6. Restricted Payments of the type described in clause $_____________
(e) of Section 7.2.6 of the Credit Agreement for the
Computation Period
================================================================================
7. The sum (without duplication) of Items 2 through 6 $_____________
================================================================================
8. FIXED CHARGE COVERAGE RATIO: ratio of Item 1 to Item 7 ____:1
================================================================================
<PAGE>
Attachment 5
(to __/__/__ Compliance
Certificate)
Item A. Change of Location of Equipment
Name of Parent Guarantor,
Borrower or Subsidiary Description New Location
1.
2.
3.
Item B. Change of Location of Inventory
Name of Parent Guarantor,
Borrower or Subsidiary Description New Location
1.
2.
3.
Item C. Change of Place of Business, etc.
Name of Parent Guarantor, Borrower or Subsidiary New Address
1.
2.
3.
Item D. Change of Trade or Legal Names
Name of Parent Guarantor,
Borrower or Subsidiary New Legal Name New Trade Name
1.
2.
3.
<PAGE>
EXHIBIT F-1
[CONFORMED COPY]
AMENDED AND RESTATED PARTNERSHIP SECURITY AGREEMENT
This AMENDED AND RESTATED PARTNERSHIP SECURITY AGREEMENT (as amended,
supplemented, amended and restated or otherwise modified from time to time, this
"Security Agreement"), dated as of September 11, 1998 (amending and restating
the Partnership Security Agreement, dated as of February 13, 1998 (the "Existing
Security Agreement")), is made by each of the parties identified on the
signature pages hereto as a "Grantor" (each, individually, a "Grantor", and
collectively, the "Grantors") in favor of FLEET NATIONAL BANK, as administrative
agent (together with its successor(s) thereto, in such capacity, the
"Administrative Agent") for each of the Secured Parties.
W I T N E S S E T H:
WHEREAS, pursuant to an Amended and Restated Credit Agreement, dated as of
September 11, 1998 (amending and restating in its entirety that certain Credit
Agreement, dated as of February 13, 1998 (as amended prior to the Amendment
Effective Date, the "Existing Credit Agreement") (as so amended and restated,
and together with all amendments, supplements, restatements and other
modifications, if any, from time to time thereafter made thereto, the "Credit
Agreement"), among Duane Reade, a New York general partnership (the "Borrower"
or the "Partnership"), each of the Grantors, the various financial institutions
as are, or may from time to time become, parties thereto (each, individually, a
"Lender", and collectively, the "Lenders"), DLJ Capital Funding, Inc., as the
Syndication Agent, Fleet National Bank, as the Administrative Agent and Credit
Lyonnais New York Branch, as the Documentation Agent, the Lenders and the Issuer
have extended Commitments to make Credit Extensions to the Borrower;
WHEREAS, as a condition precedent to the making of the Credit Extensions
under the Existing Credit Agreement, each Grantor was required to execute and
deliver the Existing Security Agreement; and
WHEREAS, each Grantor has requested that the Existing Security Agreement
be amended and restated in its entirety to read as hereinafter set forth;
WHEREAS, it is in the best interests of each Grantor to execute this
Security Agreement inasmuch as such Grantor will derive substantial direct and
indirect benefits from the Credit Extensions made and maintained from time to
time to the Borrower by the Lenders and the Issuer pursuant to the Credit
Agreement;
<PAGE>
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and in order to induce the Lenders
and the Issuer to make and maintain Credit Extensions to the Borrower pursuant
to the Credit Agreement, and to induce the Secured Parties to enter into Rate
Protection Agreement(s), each Grantor agrees, for the benefit of each Secured
Party, as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. Certain Terms. The following terms (whether or not
underscored) when used in this Security Agreement, including its preamble and
recitals, shall have the following meanings (such definitions to be equally
applicable to the singular and plural forms thereof):
"Administrative Agent" is defined in the preamble.
"Borrower" is defined in the first recital.
"Collateral" is defined in Section 2.1.
"Credit Agreement" is defined in the first recital.
"Existing Credit Agreement" is defined in the first recital.
"Existing Security Agreement" is defined in the first recital.
"Grantor" and "Grantors" are defined in the preamble.
"Lender" and "Lenders" are defined in the first recital.
"Partnership" is defined in the first recital.
"Partnership Agreement" means the Borrower Partnership Agreement as
defined in the Credit Agreement.
"Secured Obligations" is defined in Section 2.2.
"Security Agreement" is defined in the preamble.
"U.C.C." means the Uniform Commercial Code, as in effect from time to time
in the State of New York.
-3-
<PAGE>
SECTION 1.2. Credit Agreement Definitions. Unless otherwise defined herein
or the context otherwise requires, terms used in this Security Agreement,
including its preamble and recitals, have the meanings provided in the Credit
Agreement.
SECTION 1.3. U.C.C. Definitions. Unless otherwise defined herein or in the
Credit Agreement or the context otherwise requires, terms for which meanings are
provided in the U.C.C. are used in this Security Agreement, including its
preamble and recitals, with such meanings.
ARTICLE II
SECURITY INTEREST
SECTION 2.1. Grant of Security. Each Grantor hereby (x) confirms the
assignments, pledges and grants that it previously made to the Administrative
Agent for its benefit and the ratable benefit of each of the Secured Parties
pursuant to the Existing Security Agreement and (y) not in limitation of such
assignments, pledges and grants but as a supplement thereto, assigns and pledges
to the Administrative Agent for its benefit and the ratable benefit of each of
the Secured Parties, and hereby grants to the Administrative Agent for its
benefit and the ratable benefit of each of the Secured Parties, a security
interest in all of the following, whether now or hereafter existing or acquired
by such Grantor (the "Collateral"):
(a) all right, title and interest of such Grantor, whether now
existing or hereafter arising or acquired, in, to and under the
Partnership Agreement, including such Grantor's rights, now existing or
hereafter arising or acquired, to receive from time to time its share of
profits, income, surplus, compensation, return of capital, distributions
and other reimbursements and payments from the Partnership (including
specific properties of the Partnership upon dissolution and otherwise and
all rights and interests as general partner to operate the Partnership);
(b) all general or limited partnership interests now owned or
hereafter acquired by such Grantor in the Partnership as a result of
exchange offers, direct investments or contributions or otherwise;
(c) such Grantor's accounts, general intangibles and other rights to
payment or reimbursement, now existing or hereafter arising or acquired,
from the Partnership, existing or arising from loans, advances or other
extensions of credit by such Grantor from time to time to or for the
account of the Partnership, or from services rendered by such Grantor from
time to time to or for the account of the Partnership; and
-4-
<PAGE>
(d) all products, offspring, rents, issues, profits, returns, income
and proceeds of and from any and all of the foregoing Collateral
(including proceeds which constitute property of the types described in
clauses (a), (b) and (c), and, to the extent not otherwise included, all
payments under insurance (whether or not the Administrative Agent is the
loss payee thereof), or any indemnity, warranty or guaranty, payable by
reason of loss or damage to or otherwise with respect to any of the
foregoing Collateral).
SECTION 2.2. Security for Obligations. This Security Agreement secures the
payment of all Obligations of the Borrower now or hereafter existing under the
Credit Agreement, the Notes and each other Loan Document to which the Borrower
is or may become a party, whether for principal, interest, costs, fees, expenses
or otherwise, and all obligations of each Grantor and each other Obligor now or
hereafter existing under this Security Agreement and each other Loan Document to
which such Grantor or such other Obligor is or may become a party (all such
obligations of the Borrower and such Grantor and such other Obligor being the
"Secured Obligations").
SECTION 2.3. Continuing Security Interest; Transfer of Notes. This
Security Agreement shall create a continuing security interest in the Collateral
and shall
(a) remain in full force and effect until payment in full in cash of
all Secured Obligations, the termination of all Letters of Credit, the
termination or expiration of all Rate Protection Agreements and the
termination of all Commitments,
(b) be binding upon each Grantor, its successors, transferees and
assigns, and
(c) inure, together with the rights and remedies of the
Administrative Agent hereunder, to the benefit of the Administrative Agent
and each other Secured Party.
Without limiting the generality of the foregoing clause (c), any Lender may
assign or otherwise transfer (in whole or in part) any Note or Credit Extension
held by it to any other Person or entity, and such other Person or entity shall
thereupon become vested with all the rights and benefits in respect thereof
granted to such Lender under any Loan Document (including this Security
Agreement) or otherwise, subject, however, to any contrary provisions in such
assignment or transfer, and to the provisions of Section 11.11 and Article X of
the Credit Agreement. Upon the payment in full in cash of all Secured
Obligations, the termination or expiration of all Letters of Credit, the
termination of all Rate Protection Agreements and the termination of all
Commitments, the security interest granted herein shall terminate and all rights
to the Collateral shall revert to such Grantor. Upon any such termination, the
Administrative Agent will, at such Grantor's sole expense, execute and deliver
to such Grantor such documents as such Grantor shall reasonably request to
evidence such termination.
SECTION 2.4. Grantors Remain Liable. Anything herein to the contrary
notwithstanding
-5-
<PAGE>
(a) each Grantor shall remain liable under the Partnership
Agreement and the contracts and agreements included in the Collateral
to the extent set forth therein, and shall perform all of its duties
and obligations under the Partnership Agreement and such contracts and
agreements to the same extent as if this Security Agreement had not
been executed,
(b) the exercise by the Administrative Agent of any of its rights
hereunder shall not release any Grantor from any of its duties or
obligations under the Partnership Agreement and any such contracts or
agreements included in the Collateral, and
(c) neither the Administrative Agent nor any other Secured Party
shall have any obligation or liability under the Partnership Agreement and
any such contracts or agreements included in the Collateral by reason of
this Security Agreement, nor shall the Administrative Agent or any other
Secured Party be obligated to perform any of the obligations or duties of
any Grantor thereunder or to take any action to collect or enforce any
claim for payment assigned hereunder.
SECTION 2.5. Security Interest Absolute. All rights of the Administrative
Agent and the security interests granted to the Administrative Agent hereunder,
and all obligations of each Grantor hereunder, shall be absolute and
unconditional, irrespective of
(a) any lack of validity or enforceability of the Credit Agreement,
any Note or any other Loan Document;
(b) the failure of any Secured Party or any holder of any Note
(i) to assert any claim or demand or to enforce any right or
remedy against the Borrower, any other Obligor or any other Person
under the provisions of the Credit Agreement, any Note, any other
Loan Document or otherwise, or
(ii) to exercise any right or remedy against any other
guarantor of, or collateral securing, any Secured Obligations;
(c) any change in the time, manner or place of payment of, or in any
other term of, all or any of the Secured Obligations or any other
extension, compromise or renewal of any Secured Obligations;
(d) any reduction, limitation, impairment or termination of any
Secured Obligations for any reason, including any claim of waiver,
release, surrender, alteration or compromise, and shall not be subject to
(and each Grantor hereby waives any right to or claim of) any defense or
setoff, counterclaim, recoupment or termination whatsoever by reason of
the invalidity, illegality, nongenuineness, irregularity, compromise,
unenforceability of, or any other event or occurrence affecting, any
Secured Obligations
-6-
<PAGE>
or otherwise;
(e) any amendment to, rescission, waiver, or other modification of,
or any consent to departure from, any of the terms of the Credit
Agreement, any Note or any other Loan Document;
(f) any addition, exchange, release, surrender or non-perfection of
any collateral (including the Collateral), or any amendment to or waiver
or release of or addition to or consent to departure from any guaranty,
for any of the Secured Obligations; or
(g) any other circumstances which might otherwise constitute a
defense available to, or a legal or equitable discharge of, the Borrower,
any other Obligor, any surety or any guarantor.
SECTION 2.6. Postponement of Subrogation, etc. Each Grantor hereby agrees
that it will not exercise any rights which it may acquire by reason of any
payment made hereunder, whether by way of subrogation, reimbursement or
otherwise, until the prior payment in full in cash of all Secured Obligations,
the termination or expiration of all Letters of Credit, the termination of all
Rate Protection Agreements and the termination of all Commitments. Any amount
paid to any Grantor on account of any payment made hereunder prior to the
payment in full in cash of all Secured Obligations shall be held in trust for
the benefit of the Secured Parties and each holder of a Note and shall
immediately be paid to the Administrative Agent for the benefit of the Secured
Parties and each holder of a Note and credited and applied against the Secured
Obligations, whether matured or unmatured, in accordance with the terms of the
Credit Agreement; provided, however, that if
(a) such Grantor has made payment to the Administrative Agent for
the benefit of the Secured Parties and each holder of a Note of all or any
part of the Secured Obligations, and
(b) all Secured Obligations have been paid in full in cash, all
Letters of Credit have been terminated or expired, all Rate Protection
Agreements have been terminated and all Commitments have been permanently
terminated,
each Secured Party and each holder of a Note agrees that, at the requesting
Grantor's request, the Administrative Agent, on behalf of the Secured Parties
and the holders of the Notes, will execute and deliver to such Grantor
appropriate documents (without recourse and without representation or warranty)
necessary to evidence the transfer by subrogation to such Grantor of an interest
in the Secured Obligations resulting from such payment by such Grantor. In
furtherance of the foregoing, for so long as any Secured Obligations,
Commitments or Letters of Credit remain outstanding or any Rate Protection
Agreement remains in full force and effect, each Grantor shall refrain from
taking any action or commencing any proceeding against the Borrower or any other
-7-
<PAGE>
Obligor (or its successors or assigns, whether in connection with a bankruptcy
proceeding or otherwise) to recover any amounts in respect of payments made
under this Security Agreement to any Secured Party or any holder of a Note.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.1. Representations and Warranties. Each Grantor represents and
warrants to each Secured Party insofar as the representations and warranties
contained herein are applicable to such Grantor and its properties, as set forth
in this Article III.
SECTION 3.2. Ownership, No Liens, etc. Such Grantor owns its Collateral
free and clear of any Lien, security interest, charge or encumbrance except for
the security interest created by this Security Agreement and except as permitted
by the Credit Agreement. No effective financing statement or other instrument
similar in effect covering all or any part of the Collateral is on file in any
recording office, except such as may have been filed in favor of the
Administrative Agent relating to this Security Agreement or as to which a duly
executed termination statement relating to such financing statement or other
similar instrument has been delivered to the Administrative Agent on the Closing
Date.
SECTION 3.3. Validity, etc. This Security Agreement creates a valid
security interest in the Collateral securing the payment of the Secured
Obligations, and upon the filing of the Uniform Commercial Code financing
statements delivered by each Grantor to the Administrative Agent with respect to
such Collateral, such security interest will be a first priority perfected
security interest. The Partnership Agreement (and all amendments thereto)
constitutes the valid, binding and enforceable obligations of each Grantor a
party thereto, sets forth the entire agreement of the parties thereto with
respect to the subject matter thereof, has not been further amended or modified
and remains in full force and effect.
SECTION 3.4. Partnership Interests, Profits. The character (general and/or
limited partner) of each Grantor's interest in the Partnership and each
Grantor's percentage interest in the Partnership's profits (with profit
interests as a general and as a limited partner separately stated) are as set
forth in Schedule I hereto, as amended, supplemented or otherwise modified from
time to time with the prior written consent of the Administrative Agent.
SECTION 3.5. Certificate. No interest of such Grantor in the Partnership
is represented by a certificate of interest or similar instrument, except such
certificates or instruments, if any, as have been delivered to the
Administrative Agent and are held in its possession (and such Grantor covenants
and agrees that any such certificates or instruments hereafter received by such
Grantor with respect to any of the Collateral will be promptly delivered to the
Administrative Agent, together with all necessary instruments or transfer or
assignment, duly executed in blank).
-8-
<PAGE>
SECTION 3.6. Interest in Partnership Agreements. Such Grantor had and
has the power and legal capacity to execute and carry out the provisions of the
Partnership Agreement. Such Grantor has substantially performed all of its
obligations to date under the Partnership Agreement and has not received notice
of the failure of any other party thereto to perform substantially its
obligations thereunder.
SECTION 3.7. Location, Records, etc. The chief executive office of such
Grantor and the office where such Grantor keeps its records concerning the
Collateral are located at the addresses specified in Schedule II hereto. During
the four months preceding the Closing Date, such Grantor has not been known by
any legal name different from the one set forth on the signature page hereto
(except as listed on the signature page hereto), nor has such Grantor been the
subject of any merger or other corporate reorganization.
SECTION 3.8. Authorization, Approval, etc. Except as have been obtained or
made and are in full force and effect (or otherwise provided for to the
satisfaction of the Agents), no authorization, approval or other action by, and
no notice to or filing with, any governmental authority or regulatory body is
required either
(a) for the grant by such Grantor of the security interest granted
hereby or for the execution, delivery and performance of this Security
Agreement by such Grantor, or
(b) for the perfection of or the exercise by the Administrative
Agent of its rights and remedies hereunder.
SECTION 3.9. Compliance with Laws. Such Grantor is in compliance with the
requirements of all applicable laws (including the provisions of the Fair Labor
Standards Act), rules, regulations and orders of every governmental authority,
the non-compliance with which could reasonably be expected to have a Material
Adverse Effect or which could reasonably be expected to materially adversely
affect the value of the Collateral or the worth of the Collateral as collateral
security.
ARTICLE IV
COVENANTS
SECTION 4.1. Certain Covenants. Each Grantor covenants and agrees that, so
long as any portion of the Secured Obligations shall remain unpaid, any Rate
Protection Agreements shall remain in full force and effect, any Letters of
Credit shall be outstanding or any Lender shall have any outstanding Commitment,
such Grantor will, unless the Required Lenders shall otherwise consent in
writing, perform, comply with and be bound by the obligations set forth in this
Article IV.
-9-
<PAGE>
SECTION 4.2. Covenants from Other Agreements. Such Grantor will take all
actions necessary to cause the Partnership to perform, comply with and be bound
by all of the agreements, covenants and obligations contained in Article VII of
the Credit Agreement and in any other Loan Document applicable to the
Partnership and its properties. Each such agreement, covenant and obligation
contained in such Article or in any other Loan Document and all other terms of
the Credit Agreement and the Loan Documents to which reference is made therein,
together with all related definitions and ancillary provisions, is hereby
incorporated into this Security Agreement by reference as though specifically
set forth in this Section, and each such agreement, covenant and obligation
shall, for purposes hereof, survive the termination of the Credit Agreement and
the Loan Documents (other than this Security Agreement).
SECTION 4.3. Maintenance of Records. Such Grantor will keep, at its
address indicated on Schedule II hereto, all of its records concerning the
Collateral, which records will be of such character as will enable the
Administrative Agent or its designees to determine at any time the status
thereof, or, upon 30 days' prior written notice to the Administrative Agent, at
such other locations in a jurisdiction where all actions necessary to (a)
perfect, preserve and protect any security interest granted or purported to be
granted hereby and (b) enable the Administrative Agent to exercise and enforce
its rights and remedies hereunder, shall have been taken. Such Grantor shall not
change its name except upon 30 days' prior written notice to the Administrative
Agent and shall hold and preserve such records concerning the Collateral and
permit representatives of the Administrative Agent at any time during normal
business hours to inspect and make abstracts from such records.
SECTION 4.4. Amendment of Partnership Agreement. Such Grantor will not
amend, supplement or otherwise modify, or permit, consent or suffer to occur any
amendment, supplement or modification of any terms or provisions contained in,
or applicable to, the Partnership Agreement, if the effect thereof is to impair,
or is in any manner adverse to, the rights or interests of any Secured Party
under the Credit Agreement or any other Loan Document, without the prior written
consent of the Administrative Agent and the Required Lenders.
SECTION 4.5. Withdraw from Partnership. No Grantor will, without the
express written consent of the Administrative Agent and the Lenders, actively
cause itself to withdraw as a general partner or limited partner, as the case
may be, of the Partnership.
SECTION 4.6. Transfers and Other Liens. Such Grantor shall not
(a) sell, assign (by operation of law or otherwise) or otherwise
dispose of any of the Collateral; or
(b) create or suffer to exist any Lien or other charge or
encumbrance upon or with respect to any of the Collateral to secure
Indebtedness of any Person or entity, except for the security interest
created by this Security Agreement and except as permitted by the
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Credit Agreement.
SECTION 4.7. Further Assurances, etc. Such Grantor agrees that, from time
to time at its own expense, such Grantor will promptly execute and deliver all
further instruments and documents, and take all further action, that may be
necessary or desirable, or that the Administrative Agent may request, in order
to perfect, preserve and protect any security interest granted or purported to
be granted hereby or to enable the Administrative Agent to exercise and enforce
its rights and remedies hereunder with respect to any Collateral. Without
limiting the generality of the foregoing, such Grantor will
(a) execute and file such financing or continuation statements, or
amendments thereto, and such other instruments or notices (including any
assignment of claim form under or pursuant to the federal assignment of
claims statute, 31 U.S.C. ss. 3726, any successor or amended version
thereof or any regulation promulgated under or pursuant to any version
thereof), as may be necessary or desirable, or as the Administrative Agent
may request, in order to perfect and preserve the security interests and
other rights granted or purported to be granted to the Administrative
Agent hereby; and
(b) furnish to the Administrative Agent, from time to time at the
Administrative Agent's request, statements and schedules further
identifying and describing the Collateral and such other reports in
connection with the Collateral as the Administrative Agent may reasonably
request, all in reasonable detail.
With respect to the foregoing and the grant of the security interest hereunder,
such Grantor hereby authorizes the Administrative Agent to file one or more
financing or continuation statements, and amendments thereto, relative to all or
any part of the Collateral without the signature of such Grantor where permitted
by law. A carbon, photographic or other reproduction of this Security Agreement
or any financing statement covering the Collateral or any part thereof shall be
sufficient as a financing statement where permitted by law.
ARTICLE V
THE ADMINISTRATIVE AGENT
SECTION 5.1. Administrative Agent Appointed Attorney-in-Fact. Each Grantor
hereby irrevocably appoints the Administrative Agent such Grantor's
attorney-in-fact, with full authority in the place and stead of such Grantor and
in the name of such Grantor or otherwise, from time to time in the
Administrative Agent's discretion, following the occurrence and continuation of
a Default of the nature set forth in Section 8.1.9 of the Credit Agreement or an
Event of Default, to take any action and to execute any instrument which the
Administrative Agent may deem necessary or advisable to accomplish the purposes
of this Security Agreement,
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including:
(a) to ask, demand, collect, sue for, recover, compromise, receive
and give acquittance and receipts for moneys due and to become due under
or in respect of any of the Collateral;
(b) to receive, endorse, and collect any drafts or other
instruments, documents and chattel paper, in connection with clause (a)
above;
(c) to file any claims or take any action or institute any
proceedings which the Administrative Agent may deem necessary or desirable
for the collection of any of the Collateral or otherwise to enforce the
rights of the Administrative Agent with respect to any of the Collateral;
and
(d) to perform the affirmative obligations of such Grantor hereunder
(including all obligations of such Grantor pursuant to Section 4.7).
Such Grantor hereby acknowledges, consents and agrees that the power of attorney
granted pursuant to this Section is irrevocable and coupled with an interest.
SECTION 5.2. Administrative Agent May Perform. If any Grantor fails to
perform any agreement contained herein, the Administrative Agent may itself
perform, or cause performance of, such agreement, and the expenses of the
Administrative Agent incurred in connection therewith shall be payable by such
Grantor pursuant to Section 6.2.
SECTION 5.3. Administrative Agent Has No Duty. In addition to, and not in
limitation of, Section 2.4, the powers conferred on the Administrative Agent
hereunder are solely to protect its interest (on behalf of the Secured Parties)
in the Collateral and shall not impose any duty on it to exercise any such
powers. Except for reasonable care of any Collateral in its possession and the
accounting for moneys actually received by it hereunder, the Administrative
Agent shall have no duty as to any Collateral or as to the taking of any
necessary steps to preserve rights against prior parties or any other rights
pertaining to any Collateral.
SECTION 5.4. Reasonable Care. The Administrative Agent is required to
exercise reasonable care in the custody and preservation of any of the
Collateral in its possession; provided, however, the Administrative Agent shall
be deemed to have exercised reasonable care in the custody and preservation of
any of the Collateral, if it takes such action for that purpose as any Grantor
reasonably requests in writing at times other than upon the occurrence and
during the continuance of any Event of Default, but failure of the
Administrative Agent to comply with any such request at any time shall not in
itself be deemed a failure to exercise reasonable care.
ARTICLE VI
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REMEDIES
SECTION 6.1. Certain Remedies. If any Event of Default shall have occurred
and be continuing:
(a) The Administrative Agent may exercise in respect of the
Collateral, in addition to other rights and remedies provided for herein
or otherwise available to it, all the rights and remedies of a secured
party on default under the U.C.C. (whether or not the U.C.C. applies to
the affected Collateral) and also may
(i) require each Grantor to, and such Grantor hereby agrees
that it will, at its expense and upon request of the Administrative
Agent forthwith, assemble all or part of the Collateral as directed
by the Administrative Agent and make it available to the
Administrative Agent at a place to be designated by the
Administrative Agent which is reasonably convenient to all parties,
and
(ii) without notice except as specified below, sell the
Collateral or any part thereof at public or private sale, at any of
the Administrative Agent's offices or elsewhere, for cash, on credit
or for future delivery, and upon such other terms as the
Administrative Agent may deem commercially reasonable. Each Grantor
agrees that, to the extent notice of sale shall be required by law,
at least ten days' prior notice to such Grantor of the time and
place of any public sale or the time after which any private sale is
to be made shall constitute reasonable notification. The
Administrative Agent shall not be obligated to make any sale of
Collateral regardless of notice of sale having been given. The
Administrative Agent may adjourn any public or private sale from
time to time by announcement at the time and place fixed therefor,
and such sale may, without further notice, be made at the time and
place to which it was so adjourned.
(b) All cash proceeds received by the Administrative Agent in
respect of any sale of, collection from, or other realization upon, all or
any part of the Collateral shall be applied by the Administrative Agent
against, all or any part of the Obligations as follows:
(i) first, to the payment of any amounts payable to the
Administrative Agent pursuant to Section 11.3 of the Credit
Agreement and Section 6.2;
(ii) second, to the equal and ratable payment of Obligations,
in accordance with each Secured Party's Obligations owing to it
under or pursuant to the Credit Agreement or any other Loan
Document, or under or pursuant to any Hedging Obligation included in
the Obligations as to each Secured Party, applied
(A) first to fees and expense reimbursements then due to
such Secured Party,
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(B) then to interest due to such Secured Party,
(C) then to pay or prepay principal of the Loans owing
to, or to reduce the "credit exposure" of, such Secured Party
under such Hedging Obligation, as the case may be, and
(D) then to pay the remaining outstanding Obligations
and cash collateralize all Letter of Credit Outstandings;
(iii) third, without duplication of any amounts paid pursuant
to clause (b)(ii) above, to the Indemnified Parties to the extent of
any amounts owing pursuant to Section 11.4 of the Credit Agreement;
and
(iv) fourth, to be held as additional collateral security
until the payment in full in cash of all of the Obligations, the
termination or expiration of all Letters of Credit, the termination
of all Rate Protection Agreements and the termination of all
Commitments, after which such remaining cash proceeds shall be paid
over to the applicable Grantor or to whomsoever may be lawfully
entitled to receive such surplus.
For purposes of this Security Agreement, the "credit exposure" at any time
of any Secured Party with respect to a Hedging Obligation to which such
Secured Party is a party shall be determined at such time in accordance
with the customary methods of calculating credit exposure under similar
arrangements by the counterparty to such arrangements, taking into account
potential interest rate movements and the respective termination
provisions and notional principal amount and term of such Hedging
Obligation.
SECTION 6.2. Indemnity and Expenses.
(a) Each Grantor jointly and severally agrees to indemnify the
Administrative Agent from and against any and all claims, losses and
liabilities arising out of or resulting from this Security Agreement
(including enforcement of this Security Agreement), except claims, losses
or liabilities resulting from the Administrative Agent's gross negligence
or wilful misconduct.
(b) Each Grantor will upon demand pay to the Administrative Agent
the amount of any and all reasonable expenses, including the reasonable
fees and disbursements of its counsel and of any experts and agents, which
the Administrative Agent may incur in connection with
(i) the administration of this Security Agreement,
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<PAGE>
(ii) the custody, preservation, use or operation of, or the
sale of, collection from, or other realization upon, any of the
Collateral,
(iii) the exercise or enforcement of any of the rights of the
Administrative Agent or the Secured Parties hereunder, and
(iv) the failure by any Grantor to perform or observe any of
the provisions hereof.
ARTICLE VII
MISCELLANEOUS PROVISIONS
SECTION 7.1. Loan Document. This Security Agreement is a Loan Document
executed pursuant to the Credit Agreement and shall (unless otherwise expressly
indicated herein) be construed, administered and applied in accordance with the
terms and provisions thereof.
SECTION 7.2. Amendments; etc. No amendment to or waiver of any provision
of this Security Agreement nor consent to any departure by any Grantor herefrom,
shall in any event be effective unless the same shall be in writing and signed
by the Administrative Agent (on behalf of the Lenders or the Required Lenders,
as the case may be) and by the Guarantor in the case of an amendment, and then
such waiver or consent shall be effective only in the specific instance and for
the specific purpose for which given.
SECTION 7.3. Addresses for Notices. All notices and other communications
provided for hereunder to any party hereto shall be in writing (including
telegraphic communication) and mailed or telecopied or delivered to such party,
addressed to such party at its address specified in the Credit Agreement. All
such notices and other communications, when mailed and properly addressed with
postage prepaid or if properly addressed and sent by pre-paid courier service,
shall be deemed given when received; any such notice or communication, if
transmitted by telecopier, shall be deemed given when transmitted and
electronically confirmed.
SECTION 7.4. Section Captions. Section captions used in this Security
Agreement are for convenience of reference only, and shall not affect the
construction of this Security Agreement.
SECTION 7.5. Severability. Wherever possible each provision of this
Security Agreement shall be interpreted in such manner as to be effective and
valid under applicable law, but if any provision of this Security Agreement
shall be prohibited by or invalid under such law, such provision shall be
ineffective to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of this
Security Agreement.
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<PAGE>
SECTION 7.6. Counterparts. This Security Agreement may be executed by the
parties hereto in several counterparts, each of which shall be deemed to be an
original and all of which shall constitute together but one and the same
agreement.
SECTION 7.7. Governing Law, Entire Agreement, etc. THIS SECURITY AGREEMENT
SHALL BE DEEMED TO BE A CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF
THE STATE OF NEW YORK, EXCEPT TO THE EXTENT THAT THE VALIDITY OR PERFECTION OF
THE SECURITY INTEREST HEREUNDER, OR REMEDIES HEREUNDER, IN RESPECT OF ANY
PARTICULAR COLLATERAL ARE GOVERNED BY THE LAWS OF A JURISDICTION OTHER THAN THE
STATE OF NEW YORK. THIS SECURITY AGREEMENT AND THE OTHER LOAN DOCUMENTS
CONSTITUTE THE ENTIRE UNDERSTANDING AMONG THE PARTIES HERETO WITH RESPECT TO THE
SUBJECT MATTER HEREOF AND THEREOF AND SUPERSEDE ANY PRIOR AGREEMENTS, WRITTEN OR
ORAL, WITH RESPECT THERETO.
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<PAGE>
IN WITNESS WHEREOF, each Grantor has caused this Security Agreement to be
duly executed and delivered by its officer thereunto duly authorized as of the
date first above written.
GRANTORS:
DUANE READE INC., a Delaware
corporation
By /s/ William J. Tennant
Name: William J. Tennant
Title: Senior Vice President
DRI I INC., a Delaware corporation
By /s/ William J. Tennant
Name: William J. Tennant
Title: Senior Vice President
FLEET NATIONAL BANK,
as Administrative Agent
By /s/ A. Glen Kewley
Name: A. Glen Kewley
Title: A.V.P.
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SCHEDULE I to
Partnership Security
Agreement
TYPE OF PERCENTAGE OF
PARTNERSHIP ALL INTERESTS
NAME OF GRANTOR INTEREST PLEDGED PLEDGED
- --------------- ---------------- -------
Duane Reade Inc. General 99%
DRI I Inc. General 1%
<PAGE>
SCHEDULE II to
Partnership Security
Agreement
Chief Executive Office
DUANE READE INC. 440 Ninth Avenue
New York, New York 10001
DRI I INC. 440 Ninth Avenue
New York, New York 10001
<PAGE>
EXHIBIT F-2
[CONFORMED COPY]
AMENDED AND RESTATED BORROWER SECURITY AGREEMENT
This AMENDED AND RESTATED BORROWER SECURITY AGREEMENT (as amended,
supplemented, amended and restated or otherwise modified from time to time, this
"Security Agreement"), dated as of September 11, 1998 (amending and restating
the Borrower Security Agreement, dated as of February 13, 1998 (the "Existing
Security Agreement")), is made by DUANE READE, a New York general partnership
(the "Grantor"), in favor of FLEET NATIONAL BANK, as administrative agent
(together with its successor(s) thereto, in such capacity the "Administrative
Agent") for each of the Secured Parties.
W I T N E S S E T H:
WHEREAS, pursuant to an Amended and Restated Credit Agreement, dated as of
September 11, 1998 (amending and restating in its entirety that certain Credit
Agreement, dated as of February 13, 1998 (as amended prior to the Amendment
Effective Date, the "Existing Credit Agreement") (as so amended and restated,
and together with all amendments, supplements, restatements and other
modifications, if any, from time to time thereafter made thereto, the "Credit
Agreement"), among the Grantor, each of the Parent Guarantors named therein, the
various financial institutions as are, or may from time to time become, parties
thereto (each individually a "Lender" and collectively the "Lenders"), DLJ
Capital Funding, Inc., as the Syndication Agent, Fleet National Bank, as the
Administrative Agent and Credit Lyonnais New York Branch, as the Documentation
Agent, the Lenders and the Issuer have extended Commitments to make Credit
Extensions to the Grantor;
WHEREAS, as a condition precedent to the making of the Credit Extensions
under the Existing Credit Agreement, the Grantor was required to execute and
deliver the Existing Security Agreement; and
WHEREAS, the Grantor has requested that the Existing Security Agreement be
amended and restated in its entirety to read as hereinafter set forth;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and in order to induce the Lenders
and the Issuer to make and maintain Credit Extensions to the Grantor pursuant to
the Credit Agreement and to induce the Secured Parties to enter into Rate
Protection Agreement(s), the Grantor agrees, for the benefit of each Secured
Party, as follows:
<PAGE>
ARTICLE I
DEFINITIONS
SECTION 1.1. Certain Terms. The following terms (whether or not
underscored) when used in this Security Agreement, including its preamble and
recitals, shall have the following meanings (such definitions to be equally
applicable to the singular and plural forms thereof):
"Administrative Agent" is defined in the preamble.
"Collateral" is defined in Section 2.1.
"Collateral Account" is defined in Section 4.3(b).
"Computer Hardware and Software Collateral" means:
(a) all computer and other electronic data processing hardware,
integrated computer systems, central processing units, memory units,
display terminals, printers, features, computer elements, card readers,
tape drives, hard and soft disk drives, cables, electrical supply
hardware, generators, power equalizers, accessories and all peripheral
devices and other related computer hardware;
(b) all software programs (including both source code, object code
and all related applications and data files), whether now owned, licensed
or leased or hereafter acquired by the Grantor, designed for use on the
computers and electronic data processing hardware described in clause (a)
above;
(c) all firmware associated therewith;
(d) all documentation (including flow charts, logic diagrams,
manuals, guides and specifications) with respect to such hardware,
software and firmware described in the preceding clauses (a) through (c);
and
(e) all rights with respect to all of the foregoing, including any
and all copyrights, licenses, options, warranties, service contracts,
program services, test rights, maintenance rights, support rights,
improvement rights, renewal rights and indemnifications and any
substitutions, replacements, additions or model conversions of any of the
foregoing.
"Copyright Collateral" means all copyrights (including all copyrights for
semiconductor chip product mask works) of the Grantor, whether statutory or
common
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law, registered or unregistered, now or hereafter in force throughout the world
including all of the Grantor's right, title and interest in and to all
copyrights registered in the United States Copyright Office or anywhere else in
the world and also including the copyrights referred to in Item A of Schedule IV
attached hereto, and all applications for registration thereof, whether pending
or in preparation, all copyright licenses, including each copyright license
referred to in Item B of Schedule IV attached hereto, the right to sue for past,
present and future infringements of any thereof, all rights corresponding
thereto throughout the world, all extensions and renewals of any thereof and all
proceeds of the foregoing, including licenses, royalties, income, payments,
claims, damages and proceeds of suit.
"Credit Agreement" is defined in the first recital.
"Equipment" is defined in clause (a) of Section 2.1.
"Existing Credit Agreement" is defined in the first recital.
"Existing Security Agreement" is defined in the preamble.
"Grantor" is defined in the preamble.
"Intellectual Property Collateral" means, collectively, the Computer
Hardware and Software Collateral, the Copyright Collateral, the Patent
Collateral, the Trademark Collateral and the Trade Secrets Collateral.
"Inventory" is defined in clause (b) of Section 2.1
"Lender" and "Lenders" are defined in the first recital.
"Patent Collateral" means:
(a) all letters patent and applications for letters patent
throughout the world, including all patent applications in preparation for
filing anywhere in the world and including each patent and patent
application referred to in Item A of Schedule II attached hereto;
(b) all reissues, divisions, continuations, continuations-in-part,
extensions, renewals and reexaminations of any of the items described in
clause (a);
(c) all patent licenses, including each patent license referred to
in Item B of Schedule II attached hereto; and
(d) all proceeds of, and rights associated with, the foregoing
(including license royalties and proceeds of infringement suits), the
right to sue third parties
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for past, present or future infringements of any patent or patent
application, including any patent or patent application referred to in
Item A of Schedule II attached hereto, and for breach or enforcement of
any patent license, including any patent license referred to in Item B of
Schedule II attached hereto, and all rights corresponding thereto
throughout the world.
"Receivables" is defined in clause (c) of Section 2.1.
"Related Contracts" is defined in clause (c) of Section 2.1.
"Security Agreement" is defined in the preamble.
"Trademark Collateral" means:
(a) all trademarks, trade names, corporate names, company names,
business names, fictitious business names, trade styles, service marks,
certification marks, collective marks, logos, other source of business
identifiers, prints and labels on which any of the foregoing have appeared
or appear, designs and general intangibles of a like nature (all of the
foregoing items in this clause (a) being collectively called a
"Trademark"), now existing anywhere in the world or hereafter adopted or
acquired, whether currently in use or not, all registrations and
recordings thereof and all applications in connection therewith, whether
pending or in preparation for filing, including registrations, recordings
and applications in the United States Patent and Trademark Office or in
any office or agency of the United States of America or any State thereof
or any foreign country, including those referred to in Item A of Schedule
III attached hereto;
(b) all Trademark licenses, including each Trademark license
referred to in Item B of Schedule III attached hereto;
(c) all reissues, extensions or renewals of any of the items
described in clauses (a) and (b);
(d) all of the goodwill of the business connected with the use of,
and symbolized by the items described in, clauses (a) and (b); and
(e) all proceeds of, and rights associated with, the foregoing,
including any claim by the Grantor against third parties for past, present
or future infringement or dilution of any Trademark, Trademark
registration or Trademark license, including any Trademark, Trademark
registration or Trademark license referred to in Item A and Item B of
Schedule III attached hereto, or for any injury to the goodwill associated
with the use of any such Trademark or for breach or enforcement of any
Trademark license.
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"Trade Secrets Collateral" means all common law and statutory trade
secrets and all other confidential or proprietary or useful information and all
know-how obtained by or used in or contemplated at any time for use in the
business of the Grantor (all of the foregoing being collectively called a "Trade
Secret"), whether or not such Trade Secret has been reduced to a writing or
other tangible form, including all documents and things embodying, incorporating
or referring in any way to such Trade Secret, all Trade Secret licenses,
including each Trade Secret license referred to in Schedule V attached hereto,
and including the right to sue for and to enjoin and to collect damages for the
actual or threatened misappropriation of any Trade Secret and for the breach or
enforcement of any such Trade Secret license.
"U.C.C." means the Uniform Commercial Code, as in effect from time to time
in the State of New York.
SECTION 1.2. Credit Agreement Definitions. Unless otherwise defined herein
or the context otherwise requires, terms used in this Security Agreement,
including its preamble and recitals, have the meanings provided in the Credit
Agreement.
SECTION 1.3. U.C.C. Definitions. Unless otherwise defined herein or in the
Credit Agreement or the context otherwise requires, terms for which meanings are
provided in the U.C.C. are used in this Security Agreement, including its
preamble and recitals, with such meanings.
ARTICLE II
SECURITY INTEREST
SECTION 2.1. Grant of Security. The Grantor hereby (x) confirms the
assignments, pledges and grants that it previously made to the Administrative
Agent for its benefit and the ratable benefit of each of the Secured Parties
pursuant to the Existing Security Agreement and (y) not in limitation of such
assignments, pledges and grants but as a supplement thereto, assigns and pledges
to the Administrative Agent for its benefit and the ratable benefit of each of
the Secured Parties, and hereby grants to the Administrative Agent for its
benefit and the ratable benefit of each of the Secured Parties, a security
interest in all of the following, whether now or hereafter existing or acquired
by the Grantor (the "Collateral"):
(a) all equipment in all of its forms of the Grantor, wherever
located, including all parts thereof and all accessions, additions,
attachments, improvements, substitutions and replacements thereto and
therefor and all accessories related thereto (any and all of the foregoing
being the "Equipment");
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<PAGE>
(b) all inventory in all of its forms of the Grantor, wherever
located, including
(i) all raw materials and work in process therefor, finished
goods thereof, and materials used or consumed in the manufacture or
production thereof,
(ii) all goods in which the Grantor has an interest in mass or
a joint or other interest or right of any kind (including goods in
which the Grantor has an interest or right as consignee), and
(iii) all goods which are returned to or repossessed by the
Grantor, and all accessions thereto, products thereof and documents
therefor (any and all such inventory, materials, goods, accessions,
products and documents being the "Inventory");
(c) all accounts, contracts, contract rights, chattel paper,
documents, instruments, and general intangibles (including tax refunds) of
the Grantor, whether or not arising out of or in connection with the sale
or lease of goods or the rendering of services, and all rights of the
Grantor now or hereafter existing in and to all security agreements,
guaranties, leases and other contracts securing or otherwise relating to
any such accounts, contracts, contract rights, chattel paper, documents,
instruments, and general intangibles (any and all such accounts,
contracts, contract rights, chattel paper, documents, instruments, and
general intangibles being the "Receivables" (provided, however, that
Receivables shall not include Prescription Receivables sold to Pharmacy
Fund pursuant to the Rapid Remit Program), and any and all such security
agreements, guaranties, leases and other contracts being the "Related
Contracts") (provided, however, that Related Contracts shall not include
the Rapid Remit Program Documents);
(d) all Intellectual Property Collateral of the Grantor;
(e) all books, records, writings, data bases, information and other
property relating to, used or useful in connection with, evidencing,
embodying, incorporating or referring to, any of the foregoing in this
Section 2.1;
(f) all of the Grantor's other property and rights of every kind and
description and interests therein; and
(g) all products, offspring, rents, issues, profits, returns, income
and proceeds of and from any and all of the foregoing Collateral
(including proceeds which constitute property of the types described in
clauses (a), (b), (c), (d), (e) and (f), proceeds deposited from time to
time in the Collateral Account and in
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any lock boxes of the Grantor, and, to the extent not otherwise included,
all payments under insurance (whether or not the Administrative Agent is
the loss payee thereof), or any indemnity, warranty or guaranty, payable
by reason of loss or damage to or otherwise with respect to any of the
foregoing Collateral).
Notwithstanding the foregoing, "Collateral" shall not include any general
intangibles or other rights arising under any contracts, instruments, licenses
or other documents as to which the grant of a security interest would constitute
a violation of a valid and enforceable restriction in favor of a third party on
such grant, unless and until any required consents shall have been obtained. The
Grantor agrees to use its commercially reasonable best efforts to obtain any
such required consent.
SECTION 2.2. Security for Obligations. This Security Agreement secures the
payment of all Obligations of the Grantor now or hereafter existing under the
Credit Agreement, the Notes and each other Loan Document to which the Grantor is
or may become a party, whether for principal, interest, costs, fees, expenses or
otherwise.
SECTION 2.3. Continuing Security Interest; Transfer of Notes. This
Security Agreement shall create a continuing security interest in the Collateral
and shall
(a) remain in full force and effect until payment in full in cash of
all Obligations, the termination or expiration of all Letters of Credit,
the termination of all Rate Protection Agreements and the termination of
all Commitments,
(b) be binding upon the Grantor, its successors, transferees and
assigns, and
(c) inure, together with the rights and remedies of the
Administrative Agent hereunder, to the benefit of the Administrative Agent
and each other Secured Party.
Without limiting the generality of the foregoing clause (c), any Lender may
assign or otherwise transfer (in whole or in part) any Note or Credit Extension
held by it to any other Person or entity, and such other Person or entity shall
thereupon become vested with all the rights and benefits in respect thereof
granted to such Lender under any Loan Document (including this Security
Agreement) or otherwise, subject, however, to any contrary provisions in such
assignment or transfer, and to the provisions of Section 11.11 and Article X of
the Credit Agreement. Upon the payment in full in cash of all Obligations, the
termination or expiration of all Letters of Credit, the termination of all Rate
Protection Agreements and the termination of all Commitments, the security
interest granted herein shall terminate and all rights to the Collateral shall
revert to the Grantor. Upon any such termination, the Administrative Agent will,
at the Grantor's sole expense, execute and deliver to the Grantor such documents
as the Grantor shall reasonably request to evidence such termination. Upon any
sale or other transfer of
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Collateral permitted by the terms of Section 7.2.9 of the Credit Agreement, the
security interest created hereunder in such Collateral (but not in the proceeds
thereof) shall be deemed to be automatically released and the Administrative
Agent will, at the Grantor's sole expense, execute and deliver to the Grantor
such documents as the Grantor shall reasonably request to evidence such release.
SECTION 2.4. Grantor Remains Liable. Anything herein to the contrary
notwithstanding
(a) the Grantor shall remain liable under the contracts and
agreements included in the Collateral to the extent set forth therein, and
shall perform all of its duties and obligations under such contracts and
agreements to the same extent as if this Security Agreement had not been
executed,
(b) the exercise by the Administrative Agent of any of its rights
hereunder shall not release the Grantor from any of its duties or
obligations under any such contracts or agreements included in the
Collateral, and
(c) neither the Administrative Agent nor any other Secured Party
shall have any obligation or liability under any such contracts or
agreements included in the Collateral by reason of this Security
Agreement, nor shall the Administrative Agent or any other Secured Party
be obligated to perform any of the obligations or duties of the Grantor
thereunder or to take any action to collect or enforce any claim for
payment assigned hereunder.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.1. Representations and Warranties. The Grantor represents and
warrants to each Secured Party as set forth in this Article III.
SECTION 3.2. Location of Collateral, etc. All of the Equipment, Inventory
and lock boxes of the Grantor are located at the places specified in Item A,
Item B and Item C, respectively, of Schedule I hereto. None of the Equipment and
Inventory has, within the four months preceding the Closing Date (if then owned
by the Grantor), been located at any place other than the places specified in
Item A and Item B, respectively, of Schedule I hereto except as set forth in a
footnote thereto. The place(s) of business and chief executive office of the
Grantor and the office(s) where the Grantor keeps its records concerning the
Receivables, and all originals of all chattel paper which evidence Receivables,
are located at the address set forth in Item D of Schedule I hereto. The Grantor
has no trade names other than those set forth in Item E of Schedule I hereto.
During the four months preceding the Closing Date, the Grantor has not been
known by any legal name different from the one set forth on the signature
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page hereto, nor has the Grantor been the subject of any merger or other
corporate reorganization, except as set forth in Item F of Schedule I hereto. If
the Collateral includes any Inventory located in the State of California, the
Grantor is not a "retail merchant" within the meaning of Section 9102 of the
Uniform Commercial Code - Secured Transactions of the State of California. All
Receivables evidenced by a promissory note or other instrument, negotiable
document or chattel paper have been duly endorsed and accompanied by duly
executed instruments of transfer or assignment, all in form and substance
satisfactory to the Administrative Agent and delivered and pledged to the
Administrative Agent pursuant to Section 4.8. The Grantor is not a party to any
Federal, state or local government contract except as set forth in Item G of
Schedule I hereto.
SECTION 3.3. Ownership, No Liens, etc. The Grantor owns its Collateral
free and clear of any Lien, security interest, charge or encumbrance except for
the security interest created by this Security Agreement and except as permitted
by the Credit Agreement. No effective financing statement or other instrument
similar in effect covering all or any part of the Collateral is on file in any
recording office, except such as may have been filed in favor of the
Administrative Agent relating to this Security Agreement or as have been filed
in connection with Liens permitted pursuant to Section 7.2.3 of the Credit
Agreement or as to which a duly executed termination statement relating to such
financing statement or other instrument has been delivered to the Administrative
Agent on the Closing Date.
SECTION 3.4. Possession and Control. The Grantor has exclusive possession
and control of its Equipment and Inventory.
SECTION 3.5. Negotiable Documents, Instruments and Chattel Paper. The
Grantor has, contemporaneously herewith, delivered to the Administrative Agent
possession of all originals of all negotiable documents, instruments and chattel
paper currently owned or held by the Grantor (duly endorsed in blank, if
requested by the Administrative Agent).
SECTION 3.6. Intellectual Property Collateral. With respect to any
Intellectual Property Collateral the loss, impairment or infringement of which
might have a Material Adverse Effect:
(a) such Intellectual Property Collateral is subsisting and has not
been adjudged invalid or unenforceable, in whole or in part;
(b) such Intellectual Property Collateral is valid and enforceable;
(c) the Grantor has made all necessary filings and recordations to
protect its interest in such Intellectual Property Collateral, including
recordations of all of its interests in the Patent Collateral and
Trademark Collateral in the United
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States Patent and Trademark Office and in corresponding offices in
countries in which the failure to so file and/or record could reasonably
be expected to have a Material Adverse Effect and its claims to the
Copyright Collateral in the United States Copyright Office and in
corresponding offices in countries in which the failure to so file and/or
record could reasonably be expected to have a Material Adverse Effect;
(d) the Grantor is the exclusive owner of the entire and
unencumbered right, title and interest in and to such Intellectual
Property Collateral and no claim has been made that the use of such
Intellectual Property Collateral does or may violate the asserted rights
of any third party; and
(e) the Grantor has performed and will continue to perform all acts
and has paid and will continue to pay all required fees and taxes to
maintain each and every such item of Intellectual Property Collateral in
full force and effect throughout the world, as applicable.
The Grantor owns directly or is entitled to use by license or otherwise, all
patents, Trademarks, Trade Secrets, copyrights, mask works, licenses,
technology, know-how, processes and rights with respect to any of the foregoing
used in, necessary for or of importance to the conduct of the Grantor's
business.
SECTION 3.7. Validity, etc. This Security Agreement creates a valid first
priority security interest in the Collateral securing the payment of the
Obligations, and
(a) in the case of Collateral comprised of certificated securities
or instruments, upon the delivery of such Collateral to the Administrative
Agent, such security interest will be a first priority perfected security
interest;
(b) in the case of Collateral comprised of uncertificated securities
with respect to which a security interest therein may not be perfected
under applicable law by the filing of a Uniform Commercial Code financing
statement, upon a "transfer" (as such term is used in Section 8-313 of the
U.C.C.) of such Collateral to the Administrative Agent, such security
interest will be a first priority perfected security interest; and
(c) in the case of all other Collateral, upon the filing of the
Uniform Commercial Code financing statements delivered by the Grantor to
the Administrative Agent with respect to such Collateral, such security
interest will be a first priority perfected security interest.
The Grantor has filed all Uniform Commercial Code financing statements referred
to above in the appropriate offices therefor (or has provided the Administrative
Agent with copies thereof suitable for filing in such offices), and has taken
all of the other actions
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referred to above necessary to create perfected, first-priority security
interests in the applicable Collateral.
SECTION 3.8. Authorization, Approval, etc. Except as have been obtained or
made and are in full force and effect (or otherwise provided for to the
satisfaction of the Agents), no authorization, approval or other action by, and
no notice to or filing with, any governmental authority or regulatory body is
required either
(a) for the grant by the Grantor of the security interest granted
hereby or for the execution, delivery and performance of this Security
Agreement by the Grantor, or
(b) for the perfection of or the exercise by the Administrative
Agent of its rights and remedies hereunder.
SECTION 3.9. Compliance with Laws. The Grantor is in compliance with the
requirements of all applicable laws (including the provisions of the Fair Labor
Standards Act), rules, regulations and orders of every governmental authority,
the non-compliance with which could reasonably be expected to have a Material
Adverse Effect or which could reasonably be expected to materially adversely
affect the value of the Collateral or the worth of the Collateral as collateral
security.
ARTICLE IV
COVENANTS
SECTION 4.1. Certain Covenants. The Grantor covenants and agrees that, so
long as any portion of the Obligations shall remain unpaid, any Letters of
Credit shall be outstanding, any Rate Protection Agreements shall remain in full
force and effect, or any Lender shall have any outstanding Commitment, the
Grantor will, unless the Required Lenders shall otherwise consent in writing,
perform, comply with and be bound by the obligations set forth in this Article
IV.
SECTION 4.2. As to Equipment and Inventory. The Grantor hereby agrees that
it shall
(a) keep all the Equipment and Inventory (other than Inventory sold
in the ordinary course of business) at the places therefor specified in
Section 3.2 or, upon 30 days' prior written notice to the Administrative
Agent, at such other places in a jurisdiction where all representations
and warranties set forth in Article III (including Section 3.7) shall be
true and correct, and all action required pursuant to the first sentence
of Section 4.8 shall have been taken with respect to the Equipment and
Inventory;
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(b) cause the Equipment to be maintained and preserved as required
by Section 7.1.3 of the Credit Agreement; and promptly furnish to the
Administrative Agent a statement respecting any loss or damage to any of
such material Equipment; and
(c) pay promptly when due all property and other material taxes,
assessments and governmental charges or levies imposed upon, and all
claims (including claims for labor, materials and supplies) against, the
Equipment and Inventory, except to the extent the validity thereof is
being contested in good faith by appropriate proceedings and for which
adequate reserves in accordance with GAAP have been set aside.
SECTION 4.3. As to Receivables.
(a) The Grantor shall keep its place(s) of business and chief
executive office and the office(s) where it keeps its records concerning
the Receivables, and all originals of all chattel paper which evidences
Receivables, located at the address(es) set forth in Item D of Schedule I
hereto, or, upon 30 days' prior written notice to the Administrative
Agent, at such other locations in a jurisdiction where all actions
required by the first sentence of Section 4.8 shall have been taken with
respect to the Receivables; not change its name except upon 30 days' prior
written notice to the Administrative Agent; hold and preserve such records
and chattel paper; and permit representatives of the Administrative Agent
at any time during normal business hours to inspect and make abstracts
from such records and chattel paper. In addition, the Grantor shall give
the Administrative Agent a supplement to Schedule I hereto on each date a
Compliance Certificate is required to be delivered to the Administrative
Agent under the Credit Agreement, which shall set forth any changes to the
information set forth in Section 3.2.
(b) Upon written notice by the Administrative Agent to the Grantor
pursuant to this Section 4.3(b), all proceeds of Collateral received by
the Grantor shall be delivered in kind to the Administrative Agent for
deposit to a deposit account (the "Collateral Account") of the Grantor
maintained with the Administrative Agent, and the Grantor shall not
commingle any such proceeds, and shall hold separate and apart from all
other property, all such proceeds in express trust for the benefit of the
Administrative Agent until delivery thereof is made to the Administrative
Agent. The Administrative Agent will not give the notice referred to in
the preceding sentence unless there shall have occurred and be continuing
a Default of the nature set forth in Section 8.1.9 of the Credit Agreement
or an Event of Default.
(c) The Administrative Agent shall have the right to apply any
amount in
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the Collateral Account to the payment of any Obligations which are due and
payable or payable upon demand, or to the payment of any Obligations at
any time that an Event of Default shall exist.
SECTION 4.4. As to Collateral.
(a) Until the occurrence and continuance of a Default of the nature
set forth in Section 8.1.9 of the Credit Agreement or an Event of Default,
and such time as the Administrative Agent shall notify the Grantor of the
revocation of such power and authority the Grantor (i) may in the ordinary
course of its business (except as otherwise permitted under the Credit
Agreement), at its own expense, sell, lease or furnish under the contracts
of service any of the Inventory normally held by the Grantor for such
purpose, and use and consume, in the ordinary course of its business
(except as otherwise permitted under the Credit Agreement), any raw
materials, work in process or materials normally held by the Grantor for
such purpose, (ii) will, at its own expense, endeavor to collect, as and
when due, all amounts due with respect to any of the Collateral, including
the taking of such action with respect to such collection as the
Administrative Agent may reasonably request following the occurrence of a
Default of the nature set forth in Section 8.1.9 of the Credit Agreement
or an Event of Default or, in the absence of such request, as the Grantor
may deem advisable, and (iii) may grant, in the ordinary course of
business (except as otherwise permitted under the Credit Agreement), to
any party obligated on any of the Collateral, any rebate, refund or
allowance to which such party may be lawfully entitled, and may accept, in
connection therewith, the return of goods, the sale or lease of which
shall have given rise to such Collateral. The Administrative Agent,
however, may, at any time following a Default of the nature set forth in
Section 8.1.9 of the Credit Agreement or an Event of Default, whether
before or after any revocation of such power and authority or the maturity
of any of the Obligations, notify any parties obligated on any of the
Collateral to make payment to the Administrative Agent of any amounts due
or to become due thereunder and enforce collection of any of the
Collateral by suit or otherwise and surrender, release, or exchange all or
any part thereof, or compromise or extend or renew for any period (whether
or not longer than the original period) any indebtedness thereunder or
evidenced thereby. Upon request of the Administrative Agent following a
Default of the nature set forth in Section 8.1.9 of the Credit Agreement
or an Event of Default, the Grantor will, at its own expense, notify any
parties obligated on any of the Collateral to make payment to the
Administrative Agent of any amounts due or to become due thereunder.
(b) Following a Default of the nature set forth in Section 8.1.9 of
the Credit Agreement or an Event of Default, the Administrative Agent is
authorized to endorse, in the name of the Grantor, any item, howsoever
received by the Administrative Agent, representing any payment on or other
proceeds of any of
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the Collateral.
SECTION 4.5. As to Intellectual Property Collateral. The Grantor covenants
and agrees to comply with the following provisions as such provisions relate to
any Intellectual Property Collateral of the Grantor:
(a) the Grantor shall not, unless the Grantor shall either (i)
reasonably and in good faith determine (and notice of such determination
shall have been delivered to the Administrative Agent) that any of the
Patent Collateral is of negligible economic value to the Grantor, or (ii)
have a valid business purpose to do otherwise, do any act, or omit to do
any act, whereby any of the Patent Collateral may lapse or become
abandoned or dedicated to the public or unenforceable.
(b) the Grantor shall not, and the Grantor shall not permit any of
its licensees to, unless the Grantor shall either (i) reasonably and in
good faith determine (and notice of such determination shall have been
delivered to the Administrative Agent) that any of the Trademark
Collateral is of negligible economic value to the Grantor, or (ii) have a
valid business purpose to do otherwise,
(i) fail to continue to use any of the Trademark Collateral in
order to maintain all of the Trademark Collateral in full force free
from any claim of abandonment for non-use,
(ii) fail to maintain as in the past the quality of products
and services offered under all of the Trademark Collateral,
(iii) fail to employ all of the Trademark Collateral
registered with any Federal or state or foreign authority with an
appropriate notice of such registration,
(iv) adopt or use any other Trademark which is confusingly
similar or a colorable imitation of any of the Trademark Collateral,
(v) use any of the Trademark Collateral registered with any
Federal or state or foreign authority except for the uses for which
registration or application for registration of all of the Trademark
Collateral has been made, and
(vi) do or permit any act or knowingly omit to do any act
whereby any of the Trademark Collateral may lapse or become invalid
or unenforceable.
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(c) the Grantor shall not, unless the Grantor shall either (i)
reasonably and in good faith determine (and notice of such determination
shall have been delivered to the Administrative Agent) that any of the
Copyright Collateral or any of the Trade Secrets Collateral is of
negligible economic value to the Grantor, or (ii) have a valid business
purpose to do otherwise, do or permit any act or knowingly omit to do any
act whereby any of the Copyright Collateral or any of the Trade Secrets
Collateral may lapse or become invalid or unenforceable or placed in the
public domain except upon expiration of the end of an unrenewable term of
a registration thereof.
(d) the Grantor shall notify the Administrative Agent immediately if
it knows, or has reason to know, that any application or registration
relating to any material item of the Intellectual Property Collateral may
become abandoned or dedicated to the public or placed in the public domain
or invalid or unenforceable, or of any adverse determination or
development (including the institution of, or any such determination or
development in, any proceeding in the United States Patent and Trademark
Office, the United States Copyright Office or any foreign counterpart
thereof or any court) regarding the Grantor's ownership of any of the
Intellectual Property Collateral, its right to register the same or to
keep and maintain and enforce the same.
(e) in no event shall the Grantor or any of its agents, employees,
designees or licensees file an application for the registration of any
Intellectual Property Collateral with the United States Patent and
Trademark Office, the United States Copyright Office or any similar office
or agency in any other country or any political subdivision thereof,
unless it promptly informs the Administrative Agent, and upon request of
the Administrative Agent, executes and delivers any and all agreements,
instruments, documents and papers as the Administrative Agent may
reasonably request to evidence the Administrative Agent's security
interest in such Intellectual Property Collateral and the goodwill and
general intangibles of the Grantor relating thereto or represented
thereby.
(f) the Grantor shall take all necessary steps, including in any
proceeding before the United States Patent and Trademark Office, the
United States Copyright Office or any similar office or agency in any
other country or any political subdivision thereof, to maintain and pursue
any application (and to obtain the relevant registration) filed with
respect to, and to maintain any registration of, the Intellectual Property
Collateral, including the filing of applications for renewal, affidavits
of use, affidavits of incontestability and opposition, interference and
cancellation proceedings and the payment of fees and taxes (except to the
extent that dedication, abandonment or invalidation is permitted under the
foregoing clauses (a), (b) and (c)).
(g) the Grantor shall, contemporaneously herewith, execute and
deliver to
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the Administrative Agent a Trademark Security Agreement in the form of
Exhibit B hereto, and shall execute and deliver to the Administrative
Agent any other document required to acknowledge or register or perfect
the Administrative Agent's interest in any part of the Intellectual
Property Collateral.
SECTION 4.6. Insurance. The Grantor will maintain or cause to be
maintained with responsible insurance companies insurance with respect to its
business and properties (including the Equipment and Inventory) against such
casualties and contingencies and of such types and in such amounts as is
required pursuant to the Credit Agreement and will, upon the request of the
Administrative Agent, furnish a certificate of a reputable insurance broker
setting forth the nature and extent of all insurance maintained by the Grantor
in accordance with this Section.
SECTION 4.7. Transfers and Other Liens. The Grantor shall not:
(a) sell, assign (by operation of law or otherwise) or otherwise
dispose of any of the Collateral, except Inventory in the ordinary course
of business or as permitted by the Credit Agreement; or
(b) create or suffer to exist any Lien or other charge or
encumbrance upon or with respect to any of the Collateral to secure
Indebtedness of any Person or entity, except for the security interest
created by this Security Agreement and except as permitted by the Credit
Agreement.
SECTION 4.8. Further Assurances, etc. The Grantor agrees that, from time
to time at its own expense, it will promptly execute and deliver all further
instruments and documents, and take all further action, that may be necessary or
desirable, or that the Administrative Agent may request, in order to perfect,
preserve and protect any security interest granted or purported to be granted
hereby or to enable the Administrative Agent to exercise and enforce its rights
and remedies hereunder with respect to any Collateral. Without limiting the
generality of the foregoing, the Grantor will
(a) mark conspicuously each document included in the Inventory, each
chattel paper included in the Receivables and each Related Contract and,
at the request of the Administrative Agent, each of its records pertaining
to the Collateral with a legend, in form and substance satisfactory to the
Administrative Agent, indicating that such document, chattel paper,
Related Contract or Collateral is subject to the security interest granted
hereby;
(b) if any Receivable shall be evidenced by a promissory note or
other instrument, negotiable document or chattel paper, deliver and pledge
to the Administrative Agent hereunder such promissory note, instrument,
negotiable document or chattel paper duly endorsed and accompanied by duly
executed instruments of transfer or assignment, all in form and substance
satisfactory to
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the Administrative Agent;
(c) execute and file such financing or continuation statements, or
amendments thereto, and such other instruments or notices (including any
assignment of claim form under or pursuant to the federal assignment of
claims statute, 31 U.S.C. ss. 3726, any successor or amended version
thereof or any regulation promulgated under or pursuant to any version
thereof), as may be necessary or desirable, or as the Administrative Agent
may request, in order to perfect and preserve the security interests and
other rights granted or purported to be granted to the Administrative
Agent hereby; and
(d) furnish to the Administrative Agent, from time to time at the
Administrative Agent's request, statements and schedules further
identifying and describing the Collateral and such other reports in
connection with the Collateral as the Administrative Agent may reasonably
request, all in reasonable detail.
With respect to the foregoing and the grant of the security interest hereunder,
the Grantor hereby authorizes the Administrative Agent to file one or more
financing or continuation statements, and amendments thereto, relative to all or
any part of the Collateral without the signature of the Grantor where permitted
by law. A carbon, photographic or other reproduction of this Security Agreement
or any financing statement covering the Collateral or any part thereof shall be
sufficient as a financing statement where permitted by law.
ARTICLE V
THE ADMINISTRATIVE AGENT
SECTION 5.1. Administrative Agent Appointed Attorney-in-Fact. The Grantor
hereby irrevocably appoints the Administrative Agent the Grantor's
attorney-in-fact, with full authority in the place and stead of the Grantor and
in the name of the Grantor or otherwise, from time to time in the Administrative
Agent's discretion, following the occurrence and continuation of a Default of
the nature set forth in Section 8.1.9 of the Credit Agreement or an Event of
Default, to take any action and to execute any instrument which the
Administrative Agent may deem necessary or advisable to accomplish the purposes
of this Security Agreement, including:
(a) to ask, demand, collect, sue for, recover, compromise, receive
and give acquittance and receipts for moneys due and to become due under
or in respect of any of the Collateral;
(b) to receive, endorse, and collect any drafts or other
instruments, documents and chattel paper, in connection with clause (a)
above;
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(c) to file any claims or take any action or institute any
proceedings which the Administrative Agent may deem necessary or desirable
for the collection of any of the Collateral or otherwise to enforce the
rights of the Administrative Agent with respect to any of the Collateral;
and
(d) to perform the affirmative obligations of the Grantor hereunder
(including all obligations of the Grantor pursuant to Section 4.8).
The Grantor hereby acknowledges, consents and agrees that the power of attorney
granted pursuant to this Section is irrevocable and coupled with an interest.
SECTION 5.2. Administrative Agent May Perform. If the Grantor fails to
perform any agreement contained herein, the Administrative Agent may itself
perform, or cause performance of, such agreement, and the expenses of the
Administrative Agent incurred in connection therewith shall be payable by the
Grantor pursuant to Section 6.2.
SECTION 5.3. Administrative Agent Has No Duty. In addition to, and not in
limitation of, Section 2.4, the powers conferred on the Administrative Agent
hereunder are solely to protect its interest (on behalf of the Secured Parties)
in the Collateral and shall not impose any duty on it to exercise any such
powers. Except for reasonable care of any Collateral in its possession and the
accounting for moneys actually received by it hereunder, the Administrative
Agent shall have no duty as to any Collateral or as to the taking of any
necessary steps to preserve rights against prior parties or any other rights
pertaining to any Collateral.
SECTION 5.4. Reasonable Care. The Administrative Agent is required to
exercise reasonable care in the custody and preservation of any of the
Collateral in its possession; provided, however, the Administrative Agent shall
be deemed to have exercised reasonable care in the custody and preservation of
any of the Collateral, if it takes such action for that purpose as the Grantor
reasonably requests in writing at times other than upon the occurrence and
during the continuance of any Event of Default, but failure of the
Administrative Agent to comply with any such request at any time shall not in
itself be deemed a failure to exercise reasonable care.
ARTICLE VI
REMEDIES
SECTION 6.1. Certain Remedies. If any Event of Default shall have occurred
and be continuing:
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(a) The Administrative Agent may exercise in respect of the
Collateral, in addition to other rights and remedies provided for herein
or otherwise available to it, all the rights and remedies of a secured
party on default under the U.C.C. (whether or not the U.C.C. applies to
the affected Collateral) and also may
(i) require the Grantor to, and the Grantor hereby agrees that
it will, at its expense and upon request of the Administrative Agent
forthwith, assemble all or part of the Collateral as directed by the
Administrative Agent and make it available to the Administrative
Agent at a place to be designated by the Administrative Agent which
is reasonably convenient to both parties, and
(ii) without notice except as specified below, sell the
Collateral or any part thereof in one or more parcels at public or
private sale, at any of the Administrative Agent's offices or
elsewhere, for cash, on credit or for future delivery, and upon such
other terms as the Administrative Agent may deem commercially
reasonable. The Grantor agrees that, to the extent notice of sale
shall be required by law, at least ten days' prior notice to the
Grantor of the time and place of any public sale or the time after
which any private sale is to be made shall constitute reasonable
notification. The Administrative Agent shall not be obligated to
make any sale of Collateral regardless of notice of sale having been
given. The Administrative Agent may adjourn any public or private
sale from time to time by announcement at the time and place fixed
therefor, and such sale may, without further notice, be made at the
time and place to which it was so adjourned.
(b) All cash proceeds received by the Administrative Agent in
respect of any sale of, collection from, or other realization upon, all or
any part of the Collateral shall be applied by the Administrative Agent
against, all or any part of the Obligations as follows:
(i) first, to the payment of any amounts payable to the
Administrative Agent pursuant to Section 11.3 of the Credit
Agreement and Section 6.2;
(ii) second, to the equal and ratable payment of Obligations,
in accordance with each Secured Party's Obligations owing to it
under or pursuant to the Credit Agreement or any other Loan
Document, or under or pursuant to any Hedging Obligation included in
the Obligations as to each Secured Party, applied
(A) first to fees and expense reimbursements then due to
such Secured Party,
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(B) then to interest due to such Secured Party,
(C) then to pay or prepay principal of the Loans owing
to, or to reduce the "credit exposure" of, such Secured Party
under such Hedging Obligation, as the case may be, and
(D) then to pay the remaining outstanding Obligations
and cash collateralize all Letter of Credit Outstandings;
(iii) third, without duplication of any amounts paid pursuant
to clause (b)(ii) above, to the Indemnified Parties to the extent of
any amounts owing pursuant to Section 11.4 of the Credit Agreement;
and
(iv) fourth, to be held as additional collateral security
until the payment in full in cash of all of the Obligations, the
termination or expiration of all Letters of Credit, the termination
of all Rate Protection Agreements and the termination of all
Commitments, after which such remaining cash proceeds shall be paid
over to the Grantor or to whomsoever may be lawfully entitled to
receive such surplus.
For purposes of this Security Agreement, the "credit exposure" at any time
of any Secured Party with respect to a Hedging Obligation to which such
Secured Party is a party shall be determined at such time in accordance
with the customary methods of calculating credit exposure under similar
arrangements by the counterparty to such arrangements, taking into account
potential interest rate movements and the respective termination
provisions and notional principal amount and term of such Hedging
Obligation.
SECTION 6.2. Indemnity and Expenses.
(a) The Grantor agrees to indemnify the Administrative Agent from
and against any and all claims, losses and liabilities arising out of or
resulting from this Security Agreement (including enforcement of this
Security Agreement), except claims, losses or liabilities resulting from
the Administrative Agent's gross negligence or wilful misconduct.
(b) The Grantor will upon demand pay to the Administrative Agent the
amount of any and all reasonable expenses, including the reasonable fees
and disbursements of its counsel and of any experts and agents, which the
Administrative Agent may incur in connection with
(i) the administration of this Security Agreement,
(ii) the custody, preservation, use or operation of, or the
sale of,
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collection from, or other realization upon, any of the Collateral,
(iii) the exercise or enforcement of any of the rights of the
Administrative Agent or the Secured Parties hereunder, and
(iv) the failure by the Grantor to perform or observe any of
the provisions hereof.
ARTICLE VII
MISCELLANEOUS PROVISIONS
SECTION 7.1. Loan Document. This Security Agreement is a Loan Document
executed pursuant to the Credit Agreement and shall (unless otherwise expressly
indicated herein) be construed, administered and applied in accordance with the
terms and provisions thereof.
SECTION 7.2. Amendments; etc. No amendment to or waiver of any provision
of this Security Agreement nor consent to any departure by the Grantor herefrom,
shall in any event be effective unless the same shall be in writing and signed
by the Administrative Agent (on behalf of the Lenders or the Required Lenders,
as the case may be), and then such waiver or consent shall be effective only in
the specific instance and for the specific purpose for which given.
SECTION 7.3. Addresses for Notices. All notices and other communications
provided for hereunder shall be in writing (including telegraphic communication)
and mailed or telecopied or delivered to either party hereto, addressed to such
party at the address of such party specified in the Credit Agreement. All such
notices and other communications, when mailed and properly addressed with
postage prepaid or if properly addressed and sent by pre-paid courier service,
shall be deemed given when received; any such notice or communication, if
transmitted by telecopier, shall be deemed given when transmitted and
electronically confirmed.
SECTION 7.4. Section Captions. Section captions used in this Security
Agreement are for convenience of reference only, and shall not affect the
construction of this Security Agreement.
SECTION 7.5. Severability. Wherever possible each provision of this
Security Agreement shall be interpreted in such manner as to be effective and
valid under applicable law, but if any provision of this Security Agreement
shall be prohibited by or invalid under such law, such provision shall be
ineffective to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of this
Security Agreement.
-21-
<PAGE>
SECTION 7.6. Counterparts. This Security Agreement may be executed by the
parties hereto in several counterparts, each of which shall be deemed an
original and all of which shall constitute together but one and the same
agreement.
SECTION 7.7. Governing Law, Entire Agreement, etc. THIS SECURITY AGREEMENT
SHALL BE DEEMED TO BE A CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF
THE STATE OF NEW YORK, EXCEPT TO THE EXTENT THAT THE VALIDITY OR PERFECTION OF
THE SECURITY INTEREST HEREUNDER, OR REMEDIES HEREUNDER, IN RESPECT OF ANY
PARTICULAR COLLATERAL ARE GOVERNED BY THE LAWS OF A JURISDICTION OTHER THAN THE
STATE OF NEW YORK. THIS SECURITY AGREEMENT AND THE OTHER LOAN DOCUMENTS
CONSTITUTE THE ENTIRE UNDERSTANDING AMONG THE PARTIES HERETO WITH RESPECT TO THE
SUBJECT MATTER HEREOF AND THEREOF AND SUPERSEDE ANY PRIOR AGREEMENTS, WRITTEN OR
ORAL, WITH RESPECT THERETO.
-22-
<PAGE>
IN WITNESS WHEREOF, the Grantor has caused this Security Agreement to be
duly executed and delivered by its officer thereunto duly authorized as of the
date first above written.
DUANE READE
By Duane Reade Inc., a
general Partner
By /s/ William J. Tennant
Name: William J. Tennant
Title: Senior Vice President
By DRI I Inc., a general partner
By /s/ William J. Tennant
Name: William J. Tennant
Title: Senior Vice President
FLEET NATIONAL BANK,
as Administrative Agent
By /s/ A. Glen Kewley
Name: A. Glen Kewley
Title: A.V.P.
-23-
<PAGE>
SCHEDULE I
to Borrower
Security Agreement
Item A. Location of Equipment
Description Location
----------- --------
1. Equipment used in connection with See Item 6.9 of Schedule I to the
the Borrower's business Credit Agreement
Item B. Location of Inventory
Description Location
----------- --------
1. Inventory held by the Borrower for See Item 6.9 of Schedule I to the
sale or other use in connection with Credit Agreement
the Borrower's business.
Item C. Location of Lock Boxes
Contact
Bank Name and Address Account Number Person
- --------------------- -------------- ------
1. None.
Item D. Place(s) of Business and Chief Executive Office
1. See Item 6.9 of Schedule I to the Credit Agreement.
Item E. Trade Names
1. Duane Reade
Item F. Merger or Other Corporate Reorganization
None.
Item G. Government Contracts
None.
<PAGE>
SCHEDULE II
to Borrower
Security Agreement
Item A. Patents
Issued Patents
(1)Country Patent No. Issue Date Inventor(s) Title
- ---------- ---------- ---------- ----------- -----
NONE
Pending Patent Applications
*Country Serial No. Filing Date Inventor(s) Title
- -------- ---------- ----------- ----------- -----
NONE
Patent Applications in Preparation
Expected
*Country Docket No. Filing Date Inventor(s) Title
- -------- ---------- ----------- ----------- -----
NONE
Item B. Patent Licenses
*Country or Effective Expiration Subject
Territory Licensor Licensee Date Date Matter
--------- -------- -------- ---- ---- ------
NONE
<PAGE>
SCHEDULE III
to Borrower
Security Agreement
Item A. Trademarks
Registered Trademarks
(2)Country Trademark Registration No. Registration Date
- ---------- --------- ---------------- -----------------
U.S. DR (stylized) 1099871 08/15/78
U.S. DUANE READE 1106451 11/21/78
U.S. DR (stylized) 1106961 11/28/78
U.S. DUANE READE 1092555 05/30/78
U.S. DR (stylized) 1099209 08/15/78
U.S. DUANE READE 1105420 11/07/78
U.S. ROCKBOTTOM 1163199 07/28/81
U.S. ROCKBOTTOM 1500884 08/18/88
U.S. RXCELLENT SERVICE and Design 1784568 07/27/93
Pending Trademark Applications
*Country Trademark Serial No. Filing Date
- -------- --------- ---------- -----------
NONE.
Trademark Applications in Preparation
Expected Products/
*Country Trademark Docket No. Filing Date Services
- -------- --------- ---------- ----------- --------
NONE.
Item B. Trademark Licenses
<PAGE>
*Country or Effective Expiration
Territory Trademark Licensor Licensee Date Date
--------- --------- -------- -------- ---- ----
NONE.
<PAGE>
SCHEDULE IV
to Borrower
Security Agreement
Item A. Copyrights/Mask Works
Registered Copyrights/Mask Works
*Country Registration No. Registration Date Author(s) Title
- -------- ---------------- ----------------- --------- -----
NONE.
Copyright/Mask Work Pending Registration Applications
*Country Serial No. Filing Date Author(s) Title
- -------- ---------- ----------- --------- -----
NONE.
Copyright/Mask Work Registration Applications in Preparation
Expected
*Country Docket No. Filing Date Author(s) Title
- -------- ---------- ----------- --------- -----
NONE.
Item B. Copyright/Mask Work Licenses
*Country or Effective Expiration Subject
Territory Licensor Licensee Date Date Matter
--------- -------- -------- ---- ---- ------
NONE.
- --------
* List items related to the United States first for ease of recordation.
List items related to other countries next, grouped by country and in
alphabetical order by country name.
<PAGE>
SCHEDULE V
to Borrower
Security Agreement
Trade Secret or Know-How Licenses
*Country or Effective Expiration Subject
Territory Licensor Licensee Date Date Matter
--------- -------- -------- ---- ---- ------
NONE.
- --------
* List items related to the United States first for ease of recordation.
List items related to other countries next, grouped by country and in
alphabetical order by country name.
<PAGE>
EXHIBIT A
to Borrower
Security Agreement
PATENT SECURITY AGREEMENT
This PATENT SECURITY AGREEMENT (this "Agreement"), dated as of __________
__, ____, is made between DUANE READE, a New York general partnership (the
"Grantor"), and FLEET NATIONAL BANK, as Administrative Agent (together with its
successor(s) thereto in such capacity, the "Administrative Agent") for each of
the Secured Parties;
W I T N E S S E T H :
WHEREAS, pursuant to an Amended and Restated Credit Agreement, dated as of
September 11, 1998 ( amending and restating in its entirety that certain Credit
Agreement dated as of February 13, 1998 (as amended prior to the Amendment
Effective Date, the "Existing Credit Agreement") (as so amended and restated,
and together with all amendments, supplements, restatements and other
modifications, if any, from time to time thereafter made thereto, the "Credit
Agreement"), among the Grantor, each of the Parent Guarantors named therein, the
various financial institutions as are, or may from time to time become, parties
thereto (each individually a "Lender" and collectively the "Lenders"), DLJ
Capital Funding, Inc., as the Syndication Agent, Fleet National Bank, as the
Administrative Agent and Credit Lyonnais New York Branch, as the Documentation
Agent, the Lenders and the Issuer have extended Commitments to make Credit
Extensions to the Grantor;
WHEREAS, in connection with the Credit Agreement, the Grantor has executed
and delivered an Amended and Restated Borrower Security Agreement, dated as of
September 11, 1998 (amending and restating in its entirety that certain Borrower
Security Agreement dated as of February 13, 1998 (as amended prior to the
Amendment Effective Date, the "Existing Security Agreement") (as so amended and
restated, and together with all amendments, supplements, restatements and other
modifications, if any, from time to time thereafter made thereto, the "Security
Agreement");
WHEREAS, as a condition precedent to the making and maintenance of the
Credit Extensions under the Credit Agreement, the Grantor is required to execute
and deliver this Agreement and to grant to the Administrative Agent a continuing
security interest in all of the Patent Collateral (as defined below) to secure
all Obligations; and
WHEREAS, the Grantor has duly authorized the execution, delivery and
<PAGE>
performance of this Agreement;
NOW, THEREFORE, for good and valuable consideration, the receipt of which
is hereby acknowledged, and in order to induce the Lenders and the Issuer to
make and maintain Credit Extensions to the Grantor pursuant to the Credit
Agreement, and to induce the Secured Parties to enter into Rate Protection
Agreements, the Grantor agrees, for the benefit of each Secured Party, as
follows:
SECTION 1. Definitions. Unless otherwise defined herein or the context
otherwise requires, terms used in this Agreement, including its preamble and
recitals, have the meanings provided (or incorporated by reference) in the
Security Agreement.
SECTION 2. Grant of Security Interest. For good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, to
secure all of the Obligations, the Grantor does hereby mortgage, pledge and
hypothecate to the Administrative Agent, and grant to the Administrative Agent a
security interest in, for its benefit and the benefit of each Secured Party, all
of the following property (the "Patent Collateral"), whether now owned or
hereafter acquired or existing by it:
(a) all letters patent and applications for letters patent
throughout the world, including all patent applications in preparation for
filing anywhere in the world and including each patent and patent
application referred to in Item A of Attachment 1 attached hereto;
(b) all reissues, divisions, continuations, continuations-in-part,
extensions, renewals and reexaminations of any of the items described in
clause (a);
(c) all patent licenses, including each patent license referred to
in Item B of Attachment 1 attached hereto; and
(d) all proceeds of, and rights associated with, the foregoing
(including license royalties and proceeds of infringement suits), the
right to sue third parties for past, present or future infringements of
any patent or patent application, including any patent or patent
application referred to in Item A of Attachment 1 attached hereto, and for
breach or enforcement of any patent license, including any patent license
referred to in Item B of Attachment 1 attached hereto, and all rights
corresponding thereto throughout the world.
SECTION 3. Security Agreement. This Agreement has been executed and
delivered by the Grantor for the purpose of registering the security interest of
the Administrative Agent in the Patent Collateral with the United States Patent
and Trademark Office and corresponding offices in other countries of the world.
The security interest granted hereby has been granted as a supplement to, and
not in limitation of, the security interest granted to the Administrative Agent
for its benefit and
-31-
<PAGE>
the benefit of each Secured Party under the Security Agreement. The Security
Agreement (and all rights and remedies of the Administrative Agent and each
Secured Party thereunder) shall remain in full force and effect in accordance
with its terms.
SECTION 4. Release of Security Interest. Upon payment in full in cash of
all Obligations, the termination or expiry of all Letters of Credit, the
termination of all Rate Protection Agreements and the termination of all
Commitments, the Administrative Agent shall, at the Grantor's expense, execute
and deliver to the Grantor all instruments and other documents as may be
necessary or proper to release the lien on and security interest in the Patent
Collateral which has been granted hereunder.
SECTION 5. Acknowledgment. The Grantor does hereby further acknowledge and
affirm that the rights and remedies of the Administrative Agent with respect to
the security interest in the Patent Collateral granted hereby are more fully set
forth in the Security Agreement, the terms and provisions of which (including
the remedies provided for therein) are incorporated by reference herein as if
fully set forth herein.
SECTION 6. Loan Document, etc. This Agreement is a Loan Document executed
pursuant to the Credit Agreement and shall (unless otherwise expressly indicated
herein) be construed, administered and applied in accordance with the terms and
provisions of the Credit Agreement.
SECTION 7. Counterparts. This Agreement may be executed by the parties
hereto in several counterparts, each of which shall be deemed to be an original
and all of which shall constitute together but one and the same agreement.
-32-
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their respective officers thereunto duly
authorized as of the day and year first above written.
DUANE READE
By Duane Reade Inc., a general
partner
By
Name:
Title:
By DRI I Inc., a general partner
By
Name:
Title:
FLEET NATIONAL BANK, as
Administrative Agent
By
Name:
Title:
-33-
<PAGE>
ATTACHMENT 1
to Borrower Patent
Security Agreement
Item A. Patents
Issued Patents
*Country Patent No. Issue Date Inventor(s) Title
- -------- ---------- ---------- ----------- -----
Pending Patent Applications
*Country Serial No. Filing Date Inventor(s) Title
- -------- ---------- ----------- ----------- -----
Patent Applications in Preparation
Expected
*Country Docket No. Filing Date Inventor(s) Title
- -------- ---------- ----------- ----------- -----
Item B. Patent Licenses
*Country or Effective Expiration Subject
Territory Licensor Licensee Date Date Matter
--------- -------- -------- ---- ---- ------
<PAGE>
EXHIBIT B
to Borrower
Security Agreement
TRADEMARK SECURITY AGREEMENT
This TRADEMARK SECURITY AGREEMENT (as amended, supplemented, amended and
restated or otherwise modified from time to time, this "Agreement"), dated as of
September 11, 1998 (amending and restating the Trademark Security Agreement,
dated as of February 13, 1998 (the "Existing Agreement")), is made between DUANE
READE, a New York general partnership (the "Grantor"), and FLEET NATIONAL BANK,
as Administrative Agent (together with its successor(s) thereto in such
capacity, the "Administrative Agent") for each of the Secured Parties;
W I T N E S S E T H :
WHEREAS, pursuant to an Amended and Restated Credit Agreement, dated as of
September 11, 1998 (amending and restating in its entirety that certain Credit
Agreement, dated as of February 13, 1998 (as amended prior to the Amendment
Effective Date, the "Existing Credit Agreement") (as so amended and restated,
and together with all amendments, supplements, restatements and other
modifications, if any, from time to time thereafter made thereto, the "Credit
Agreement"), among the Grantor, each of the Parent Guarantors named therein, the
various financial institutions as are, or may from time to time become, parties
thereto (each individually a "Lender" and collectively the "Lenders"), DLJ
Capital Funding, Inc., as the Syndication Agent, Fleet National Bank, as the
Administrative Agent and Credit Lyonnais New York Branch, as the Documentation
Agent, the Lenders and the Issuer have extended Commitments to make Credit
Extensions to the Grantor;
WHEREAS, in connection with the Credit Agreement, the Grantor has executed
and delivered an Amended and Restated Borrower Security Agreement, dated as of
September 11, 1998 (amending and restating in its entirety that certain Borrower
Security Agreement, dated as of February 13, 1998 (as amended prior to the
Amendment Effective Date, the "Existing Security Agreement") (as so amended and
restated, and together with all amendments, supplements, restatements and other
modifications, if any, from time to time thereafter made thereto, the "Security
Agreement");
WHEREAS, as a condition precedent to the making of the Credit Extensions
under the Existing Credit Agreement, the Grantor was required to execute and
deliver this Agreement and to grant to the Administrative Agent a continuing
security interest in all of the Trademark Collateral (as defined below) to
secure all Obligations; and
<PAGE>
WHEREAS, the Grantor has requested that the Existing Agreement be amended
and restated in its entirety to read as hereinafter set forth;
NOW, THEREFORE, for good and valuable consideration, the receipt of which
is hereby acknowledged, and in order to induce the Lenders and the Issuer to
make and maintain Credit Extensions to the Grantor pursuant to the Credit
Agreement, and to induce the Secured Parties to enter into Rate Protection
Agreements, the Grantor agrees, for the benefit of each Secured Party, as
follows:
SECTION 1. Definitions. Unless otherwise defined herein or the context
otherwise requires, terms used in this Agreement, including its preamble and
recitals, have the meanings provided (or incorporated by reference) in the
Security Agreement.
SECTION 2. Grant of Security Interest. For good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, to
secure all of the Obligations, the Grantor does hereby (x) confirm the mortgage,
pledge and grant that it previously made to the Administrative Agent for its
benefit and the ratable benefit of each of the Secured Parties pursuant to the
Existing Agreement and (y) not in limitation of such assignments, pledges and
grants but as a supplement thereto, assigns and pledges to the Administrative
Agent for its benefit and the ratable benefit of each of the Secured Parties,
and hereby grants to the Administrative Agent for its benefit and the ratable
benefit of each of the Secured Parties, a security interest in all of the
following property (the "Trademark Collateral"), whether now owned or hereafter
acquired or existing by it:
(a) all trademarks, trade names, corporate names, company names,
business names, fictitious business names, trade styles, service marks,
certification marks, collective marks, logos, other source of business
identifiers, prints and labels on which any of the foregoing have appeared
or appear, designs and general intangibles of a like nature (all of the
foregoing items in this clause (a) being collectively called a
"Trademark"), now existing anywhere in the world or hereafter adopted or
acquired, whether currently in use or not, all registrations and
recordings thereof and all applications in connection therewith, whether
pending or in preparation for filing, including registrations, recordings
and applications in the United States Patent and Trademark Office or in
any office or agency of the United States of America or any State thereof
or any foreign country, including those referred to in Item A of
Attachment 1 attached hereto;
(b) all Trademark licenses, including each Trademark license
referred to in Item B of Attachment 1 attached hereto;
(c) all reissues, extensions or renewals of any of the items
described in
-36-
<PAGE>
clauses (a) and (b);
(d) all of the goodwill of the business connected with the use of,
and symbolized by the items described in, clauses (a) and (b); and
(e) all proceeds of, and rights associated with, the foregoing,
including any claim by the Grantor against third parties for past, present
or future infringement or dilution of any Trademark, Trademark
registration or Trademark license, including any Trademark, Trademark
registration or Trademark license referred to in Item A and Item B of
Attachment 1 attached hereto, or for any injury to the goodwill associated
with the use of any such Trademark or for breach or enforcement of any
Trademark license.
SECTION 3. Security Agreement. This Agreement has been executed and
delivered by the Grantor for the purpose of registering the security interest of
the Administrative Agent in the Trademark Collateral with the United States
Patent and Trademark Office and corresponding offices in other countries of the
world. The security interest granted hereby has been granted as a supplement to,
and not in limitation of, the security interest granted to the Administrative
Agent for its benefit and the benefit of each Secured Party under the Security
Agreement. The Security Agreement (and all rights and remedies of the
Administrative Agent and each Secured Party thereunder) shall remain in full
force and effect in accordance with its terms.
SECTION 4. Release of Security Interest. Upon payment in full in cash of
all Obligations, the termination or expiry of all Letters of Credit, the
termination of all Rate Protection Agreements and the termination of all
Commitments, the Administrative Agent shall, at the Grantor's expense, execute
and deliver to the Grantor all instruments and other documents as may be
necessary or proper to release the lien on and security interest in the
Trademark Collateral which has been granted hereunder.
SECTION 5. Acknowledgment. The Grantor does hereby further acknowledge and
affirm that the rights and remedies of the Administrative Agent with respect to
the security interest in the Trademark Collateral granted hereby are more fully
set forth in the Security Agreement, the terms and provisions of which
(including the remedies provided for therein) are incorporated by reference
herein as if fully set forth herein.
SECTION 6. Loan Document, etc. This Agreement is a Loan Document executed
pursuant to the Credit Agreement and shall (unless otherwise expressly indicated
herein) be construed, administered and applied in accordance with the terms and
provisions of the Credit Agreement.
SECTION 7. Counterparts. This Agreement may be executed by the parties
hereto in several counterparts, each of which shall be deemed to be an original
and all
-37-
<PAGE>
of which shall constitute together but one and the same agreement.
-38-
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their respective officers thereunto duly
authorized as of the day and year first above written.
DUANE READE
By Duane Reade Inc., a general
partner
By
Name: William J. Tennant
Title: Senior Vice President
By DRI I Inc., a general partner
By
Name: William J. Tennant
Title: Senior Vice President
FLEET NATIONAL BANK,
as Administrative Agent
By
Name: A. Glen Kewley
Title: A.V.P.
-39-
<PAGE>
ATTACHMENT 1
to Borrower Trademark
Security Agreement
Item A. Trademarks
Registered Trademarks
*Country Trademark Registration No. Registration Date
- -------- --------- ---------------- -----------------
Pending Trademark Applications
*Country Trademark Serial No. Filing Date
- -------- --------- ---------- -----------
Trademark Applications in Preparation
Expected Products/
*Country Trademark Docket No. Filing Date Services
- -------- --------- ---------- ----------- --------
- --------
* List items related to the United States first for ease of recordation.
List items related to other countries next, grouped by country and in
alphabetical order by country name.
<PAGE>
Item B. Trademark Licenses
*Country or Effective Expiration
Territory Trademark Licensor Licensee Date Date
--------- --------- -------- -------- ---- ----
<PAGE>
EXHIBIT C
to Borrower
Security Agreement
COPYRIGHT SECURITY AGREEMENT
This COPYRIGHT SECURITY AGREEMENT (this "Agreement"), dated as of
__________ __, ____, is made between DUANE READE, a New York general partnership
(the "Grantor"), and FLEET NATIONAL BANK, as Administrative Agent (together with
its successor(s) thereto in such capacity, the "Administrative Agent") for each
of the Secured Parties;
W I T N E S S E T H :
WHEREAS, pursuant to an Amended and Restated Credit Agreement, dated as of
September 11, 1998 (amending and restating in its entirety that certain Credit
Agreement, dated as of February 13, 1998 (as amended prior to the Amendment
Effective Date, the "Existing Credit Agreement") (as so amended and restated,
and together with all amendments, supplements, restatements and other
modifications, if any, from time to time thereafter made thereto, the "Credit
Agreement"), among the Grantor, each of the Parent Guarantors named therein, the
various financial institutions as are, or may from time to time become, parties
thereto (each individually a "Lender" and collectively the "Lenders"), DLJ
Capital Funding, Inc., as the Syndication Agent, Fleet National Bank, as the
Administrative Agent and Credit Lyonnais New York Branch, as the Documentation
Agent, the Lenders and the Issuer have extended Commitments to make Credit
Extensions to the Grantor;
WHEREAS, in connection with the Credit Agreement, the Grantor has executed
and delivered an Amended and Restated Borrower Security Agreement, dated as of
September 11, 1998 (amending and restating in its entirety that certain Borrower
Security Agreement, dated as of February 13, 1998 (as amended prior to the
Amendment Effective Date, the "Existing Security Agreement") (as so amended and
restated, and together with all amendments, supplements, restatements and other
modifications, if any, from time to time thereafter made thereto, the "Security
Agreement");
WHEREAS, as a condition precedent to the making and maintenance of the
Credit Extensions under the Credit Agreement, the Grantor is required to execute
and deliver this Agreement and to grant to the Administrative Agent a continuing
security interest in all of the Copyright Collateral (as defined below) to
secure all Obligations; and
<PAGE>
WHEREAS, the Grantor has duly authorized the execution, delivery and
performance of this Agreement;
NOW, THEREFORE, for good and valuable consideration, the receipt of which
is hereby acknowledged, and in order to induce the Lenders and the Issuer to
make and maintain Credit Extensions to the Grantor pursuant to the Credit
Agreement, and to induce the Secured Parties to enter into Rate Protection
Agreements, the Grantor agrees, for the benefit of each Secured Party, as
follows:
SECTION 1. Definitions. Unless otherwise defined herein or the context
otherwise requires, terms used in this Agreement, including its preamble and
recitals, have the meanings provided (or incorporated by reference) in the
Security Agreement.
SECTION 2. Grant of Security Interest. For good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, to
secure all of the Obligations, the Grantor does hereby mortgage, pledge and
hypothecate to the Administrative Agent, and grant to the Administrative Agent a
security interest in, for its benefit and the benefit of each Secured Party, all
of the following property (the "Copyright Collateral"), whether now owned or
hereafter acquired or existing by it, being all copyrights (including all
copyrights for semi-conductor chip product mask works) of the Grantor, whether
statutory or common law, registered or unregistered, now or hereafter in force
throughout the world including all of the Grantor's right, title and interest in
and to all copyrights registered in the United States Copyright Office or
anywhere else in the world and also including the copyrights referred to in Item
A of Attachment 1 attached hereto, and all applications for registration
thereof, whether pending or in preparation, all copyright licenses, including
each copyright license referred to in Item B of Attachment 1 attached hereto,
the right to sue for past, present and future infringements of any thereof, all
rights corresponding thereto throughout the world, all extensions and renewals
of any thereof and all proceeds of the foregoing, including licenses, royalties,
income, payments, claims, damages and proceeds of suit.
SECTION 3. Security Agreement. This Agreement has been executed and
delivered by the Grantor for the purpose of registering the security interest of
the Administrative Agent in the Copyright Collateral with the United States
Copyright Office and corresponding offices in other countries of the world. The
security interest granted hereby has been granted as a supplement to, and not in
limitation of, the security interest granted to the Administrative Agent for its
benefit and the benefit of each Secured Party under the Security Agreement. The
Security Agreement (and all rights and remedies of the Administrative Agent and
each Secured Party thereunder) shall remain in full force and effect in
accordance with its terms.
SECTION 4. Release of Security Interest. Upon payment in full in cash of
all Obligations, the termination or expiry of all Letters of Credit, the
termination of all Rate Protection Agreements and the termination of all
Commitments, the Administrative
-43-
<PAGE>
Agent shall, at the Grantor's expense, execute and deliver to the Grantor all
instruments and other documents as may be necessary or proper to release the
lien on and security interest in the Copyright Collateral which has been granted
hereunder.
SECTION 5. Acknowledgment. The Grantor does hereby further acknowledge and
affirm that the rights and remedies of the Administrative Agent with respect to
the security interest in the Copyright Collateral granted hereby are more fully
set forth in the Security Agreement, the terms and provisions of which
(including the remedies provided for therein) are incorporated by reference
herein as if fully set forth herein.
SECTION 6. Loan Document, etc. This Agreement is a Loan Document executed
pursuant to the Credit Agreement and shall (unless otherwise expressly indicated
herein) be construed, administered and applied in accordance with the terms and
provisions of the Credit Agreement.
SECTION 7. Counterparts. This Agreement may be executed by the parties
hereto in several counterparts, each of which shall be deemed to be an original
and all of which shall constitute together but one and the same agreement.
-44-
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their respective officers thereunto duly
authorized as of the day and year first above written.
DUANE READE
By Duane Reade Inc., a general
partner
By
Name:
Title:
By DRI I Inc., a general partner
By
Name:
Title:
FLEET NATIONAL BANK, as
Administrative Agent
By
Name:
Title:
-45-
<PAGE>
ATTACHMENT 1
to Borrower Copyright
Security Agreement
Item A. Copyrights/Mask Works
Registered Copyrights/Mask Works
*Country Registration No. Registration Date Author(s) Title
- -------- ---------------- ----------------- --------- -----
Copyright/Mask Work Pending Registration Applications
*Country Serial No. Filing Date Author(s) Title
- -------- ---------- ----------- --------- -----
Copyright/Mask Work Registration Applications in Preparation
Expected
*Country Docket No. Filing Date Author(s) Title
- -------- ---------- ----------- --------- -----
- --------
* List items related to the United States first for ease of recordation.
List items related to other countries next, grouped by country and in
alphabetical order by country name.
<PAGE>
Item B. Copyright/Mask Work Licenses
*Country or Effective Expiration Subject
Territory Licensor Licensee Date Date Matter
--------- -------- -------- ---- ---- ------
- --------
* List items related to the United States first for ease of recordation.
List items related to other countries next, grouped by country and in
alphabetical order by country name.
* List items related to the United States first for ease of recordation.
List items related to other countries next, grouped by country and in
alphabetical order by country name.
<PAGE>
EXHIBIT F-3
to Second Amended and
Restated Credit Agreement
SUBSIDIARY SECURITY AGREEMENT
This SUBSIDIARY SECURITY AGREEMENT (as amended, supplemented, amended and
restated or otherwise modified from time to time, this "Security Agreement"),
dated as of ________ __, ____, is made by each Subsidiary (as defined below) of
the Borrower (as defined below) a signatory hereto, and each other Person which
may from time to time hereafter become a party hereto pursuant to Section 7.4
(each, individually, an "Additional Grantor", and collectively, the "Additional
Grantors", and together with each such Subsidiary, each, individually, a
"Grantor", and collectively, the "Grantors"), in favor of FLEET NATIONAL BANK,
as administrative agent (together with its successor(s) thereto, in such
capacity the "Administrative Agent") for each of the Secured Parties.
W I T N E S S E T H :
WHEREAS, pursuant to a Second Amended and Restated Credit Agreement, dated
as of March 17, 1999, amending and restating in its entirety that certain
Amended and Restated Credit Agreement, dated as of September 11, 1998 (as
amended prior to the Amendment Effective Date) (as so amended and restated, and
together with all amendments, supplements, restatements and other modifications,
if any, from time to time thereafter made thereto, the "Credit Agreement"),
among Duane Reade, a New York general partnership (the "Borrower"), each of the
Parent Guarantors named therein, the various financial institutions as are, or
may from time to time become, parties thereto (each, individually, a "Lender",
and collectively, the "Lenders"), DLJ Capital Funding, Inc., as Syndication
Agent, Fleet National Bank, as the Administrative Agent and Credit Lyonnais New
York Branch, as the Documentation Agent, the Lenders and the Issuer have
extended Commitments to make Credit Extensions to the Borrower;
WHEREAS, as a condition precedent to the making and maintenance of the
Credit Extensions under the Credit Agreement, each Grantor is required to
execute and deliver this Security Agreement;
WHEREAS, each Grantor is a Subsidiary of the Borrower;
WHEREAS, each Grantor has duly authorized the execution, delivery and
performance of this Security Agreement; and
WHEREAS, it is in the best interests of each Grantor to execute this
Security
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Agreement inasmuch as such Grantor will derive substantial direct and indirect
benefits from the Credit Extensions made and maintained from time to time to the
Borrower by the Lenders and the Issuer pursuant to the Credit Agreement;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and in order to induce the Lenders
and the Issuer to make and maintain Credit Extensions to the Borrower pursuant
to the Credit Agreement, and to induce the Secured Parties to enter into Rate
Protection Agreement(s), each Grantor agrees, for the benefit of each Secured
Party, as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. Certain Terms. The following terms (whether or not
underscored) when used in this Security Agreement, including its preamble and
recitals, shall have the following meanings (such definitions to be equally
applicable to the singular and plural forms thereof):
"Additional Grantor" and "Additional Grantors" are defined in the
preamble.
"Administrative Agent" is defined in the preamble.
"Borrower" is defined in the first recital.
"Collateral" is defined in Section 2.1.
"Collateral Account" is defined in Section 4.3(b).
"Computer Hardware and Software Collateral" means:
(a) all computer and other electronic data processing hardware,
integrated computer systems, central processing units, memory units,
display terminals, printers, features, computer elements, card readers,
tape drives, hard and soft disk drives, cables, electrical supply
hardware, generators, power equalizers, accessories and all peripheral
devices and other related computer hardware;
(b) all software programs (including both source code, object code
and all related applications and data files), whether now owned, licensed
or leased or hereafter acquired by any Grantor, designed for use on the
computers and electronic data processing hardware described in clause (a)
above;
(c) all firmware associated therewith;
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(d) all documentation (including flow charts, logic diagrams,
manuals, guides and specifications) with respect to such hardware,
software and firmware described in the preceding clauses (a) through (c);
and
(e) all rights with respect to all of the foregoing, including any
and all copyrights, licenses, options, warranties, service contracts,
program services, test rights, maintenance rights, support rights,
improvement rights, renewal rights and indemnifications and any
substitutions, replacements, additions or model conversions of any of the
foregoing.
"Copyright Collateral" means all copyrights (including all copyrights for
semiconductor chip product mask works) of each Grantor, whether statutory or
common law, registered or unregistered, now or hereafter in force throughout the
world including all of such Grantor's right, title and interest in and to all
copyrights registered in the United States Copyright Office or anywhere else in
the world and also including the copyrights referred to in Item A of Schedule IV
attached hereto, and all applications for registration thereof, whether pending
or in preparation, all copyright licenses, including each copyright license
referred to in Item B of Schedule IV attached hereto, the right to sue for past,
present and future infringements of any thereof, all rights corresponding
thereto throughout the world, all extensions and renewals of any thereof and all
proceeds of the foregoing, including licenses, royalties, income, payments,
claims, damages and proceeds of suit.
"Credit Agreement" is defined in the first recital.
"Equipment" is defined in clause (a) of Section 2.1.
"Existing Credit Agreement" is defined in the first recital.
"Grantor" and "Grantors" are defined in the preamble.
"Intellectual Property Collateral" means, collectively, the Computer
Hardware and Software Collateral, the Copyright Collateral, the Patent
Collateral, the Trademark Collateral and the Trade Secrets Collateral.
"Inventory" is defined in clause (b) of Section 2.1
"Lender" and "Lenders" are defined in the first recital.
"Patent Collateral" means:
(a) all letters patent and applications for letters patent
throughout the world, including all patent applications in preparation for
filing anywhere in the
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world and including each patent and patent application referred to in Item
A of Schedule II attached hereto;
(b) all reissues, divisions, continuations, continuations-in-part,
extensions, renewals and reexaminations of any of the items described in
clause (a);
(c) all patent licenses, including each patent license referred to
in Item B of Schedule II attached hereto; and
(d) all proceeds of, and rights associated with, the foregoing
(including license royalties and proceeds of infringement suits), the
right to sue third parties for past, present or future infringements of
any patent or patent application, including any patent or patent
application referred to in Item A of Schedule II attached hereto, and for
breach or enforcement of any patent license, including any patent license
referred to in Item B of Schedule II attached hereto, and all rights
corresponding thereto throughout the world.
"Receivables" is defined in clause (c) of Section 2.1.
"Related Contracts" is defined in clause (c) of Section 2.1.
"Secured Obligations" is defined in Section 2.2.
"Security Agreement" is defined in the preamble.
"Trademark Collateral" means:
(a) all trademarks, trade names, corporate names, company names,
business names, fictitious business names, trade styles, service marks,
certification marks, collective marks, logos, other source of business
identifiers, prints and labels on which any of the foregoing have appeared
or appear, designs and general intangibles of a like nature (all of the
foregoing items in this clause (a) being collectively called a
"Trademark"), now existing anywhere in the world or hereafter adopted or
acquired, whether currently in use or not, all registrations and
recordings thereof and all applications in connection therewith, whether
pending or in preparation for filing, including registrations, recordings
and applications in the United States Patent and Trademark Office or in
any office or agency of the United States of America or any State thereof
or any foreign country, including those referred to in Item A of Schedule
III attached hereto;
(b) all Trademark licenses, including each Trademark license
referred to in Item B of Schedule III attached hereto;
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(c) all reissues, extensions or renewals of any of the items
described in clauses (a) and (b);
(d) all of the goodwill of the business connected with the use of,
and symbolized by the items described in, clauses (a) and (b); and
(e) all proceeds of, and rights associated with, the foregoing,
including any claim by any Grantor against third parties for past, present
or future infringement or dilution of any Trademark, Trademark
registration or Trademark license, including any Trademark, Trademark
registration or Trademark license referred to in Item A and Item B of
Schedule III attached hereto, or for any injury to the goodwill associated
with the use of any such Trademark or for breach or enforcement of any
Trademark license.
"Trade Secrets Collateral" means all common law and statutory trade
secrets and all other confidential or proprietary or useful information and all
know-how obtained by or used in or contemplated at any time for use in the
business of any Grantor (all of the foregoing being collectively called a "Trade
Secret"), whether or not such Trade Secret has been reduced to a writing or
other tangible form, including all documents and things embodying, incorporating
or referring in any way to such Trade Secret, all Trade Secret licenses,
including each Trade Secret license referred to in Schedule V attached hereto,
and including the right to sue for and to enjoin and to collect damages for the
actual or threatened misappropriation of any Trade Secret and for the breach or
enforcement of any such Trade Secret license.
"U.C.C." means the Uniform Commercial Code, as in effect from time to time
in the State of New York.
SECTION 1.2. Credit Agreement Definitions. Unless otherwise defined herein
or the context otherwise requires, terms used in this Security Agreement,
including its preamble and recitals, have the meanings provided in the Credit
Agreement.
SECTION 1.3. U.C.C. Definitions. Unless otherwise defined herein or in the
Credit Agreement or the context otherwise requires, terms for which meanings are
provided in the U.C.C. are used in this Security Agreement, including its
preamble and recitals, with such meanings.
ARTICLE II
SECURITY INTEREST
SECTION 2.1. Grant of Security. Each Grantor hereby assigns and pledges to
the Administrative Agent for its benefit and the ratable benefit of each of the
Secured
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Parties, and hereby grants to the Administrative Agent for its benefit and the
ratable benefit of each of the Secured Parties, a security interest in all of
the following, whether now or hereafter existing or acquired by such Grantor
(the "Collateral"):
(a) all equipment in all of its forms of such Grantor, wherever
located, including all parts thereof and all accessions, additions,
attachments, improvements, substitutions and replacements thereto and
therefor and all accessories related thereto (any and all of the foregoing
being the "Equipment");
(b) all inventory in all of its forms of such Grantor, wherever
located, including
(i) all raw materials and work in process therefor, finished
goods thereof, and materials used or consumed in the manufacture or
production thereof,
(ii) all goods in which such Grantor has an interest in mass
or a joint or other interest or right of any kind (including goods
in which such Grantor has an interest or right as consignee), and
(iii) all goods which are returned to or repossessed by such
Grantor,
and all accessions thereto, products thereof and documents therefor (any
and all such inventory, materials, goods, accessions, products and
documents being the "Inventory");
(c) all accounts, contracts, contract rights, chattel paper,
documents, instruments, and general intangibles (including tax refunds) of
such Grantor, whether or not arising out of or in connection with the sale
or lease of goods or the rendering of services, and all rights of such
Grantor now or hereafter existing in and to all security agreements,
guaranties, leases and other contracts securing or otherwise relating to
any such accounts, contracts, contract rights, chattel paper, documents,
instruments, and general intangibles (any and all such accounts,
contracts, contract rights, chattel paper, documents, instruments, and
general intangibles being the "Receivables" (provided, however, that
Receivables shall not include Prescription Receivables sold to Pharmacy
Fund pursuant to the Rapid Remit Program), and any and all such security
agreements, guaranties, leases and other contracts being the "Related
Contracts") (provided, however, that Related Contracts shall not include
the Rapid Remit Program Documents);
(d) all Intellectual Property Collateral of such Grantor;
(e) all books, records, writings, data bases, information and other
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property relating to, used or useful in connection with, evidencing,
embodying, incorporating or referring to, any of the foregoing in this
Section 2.1;
(f) all of such Grantor's other property and rights of every kind
and description and interests therein; and
(g) all products, offspring, rents, issues, profits, returns, income
and proceeds of and from any and all of the foregoing Collateral
(including proceeds which constitute property of the types described in
clauses (a), (b), (c), (d), (e) and (f), proceeds deposited from time to
time in the Collateral Account and in any lock boxes of such Grantor, and,
to the extent not otherwise included, all payments under insurance
(whether or not the Administrative Agent is the loss payee thereof), or
any indemnity, warranty or guaranty, payable by reason of loss or damage
to or otherwise with respect to any of the foregoing Collateral).
Notwithstanding the foregoing, "Collateral" shall not include any general
intangibles or other rights arising under any contracts, instruments, licenses
or other documents as to which the grant of a security interest would constitute
a violation of a valid and enforceable restriction in favor of a third party on
such grant, unless and until any required consents shall have been obtained.
Each Grantor agrees to use its commercially reasonable best efforts to obtain
any such required consent.
SECTION 2.2. Security for Obligations. This Security Agreement secures the
payment of all Obligations of the Borrower now or hereafter existing under the
Credit Agreement, the Notes and each other Loan Document to which the Borrower
is or may become a party, whether for principal, interest, costs, fees, expenses
or otherwise, and all obligations of each Grantor and each other Obligor now or
hereafter existing under this Security Agreement and each other Loan Document to
which such Grantor or such other Obligor is or may become a party (all such
obligations of the Borrower and such Grantor and such other Obligor being the
"Secured Obligations").
SECTION 2.3. Continuing Security Interest; Transfer of Notes. This
Security Agreement shall create a continuing security interest in the Collateral
and shall
(a) remain in full force and effect until payment in full in cash of
all Secured Obligations, the termination or expiration of all Letters of
Credit, the termination of all Rate Protection Agreements and the
termination of all Commitments,
(b) be binding upon each Grantor, its successors, transferees and
assigns, and
(c) inure, together with the rights and remedies of the
Administrative Agent hereunder, to the benefit of the Administrative Agent
and each other
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Secured Party.
Without limiting the generality of the foregoing clause (c), any Lender may
assign or otherwise transfer (in whole or in part) any Note or Credit Extension
held by it to any other Person or entity, and such other Person or entity shall
thereupon become vested with all the rights and benefits in respect thereof
granted to such Lender under any Loan Document (including this Security
Agreement) or otherwise, subject, however, to any contrary provisions in such
assignment or transfer, and to the provisions of Section 11.11 and Article X of
the Credit Agreement. Upon the payment in full in cash of all Secured
Obligations, the termination or expiration of all Letters of Credit, the
termination of all Rate Protection Agreements and the termination of all
Commitments, the security interest granted herein shall terminate and all rights
to the Collateral shall revert to such Grantor. Upon any such termination, the
Administrative Agent will, at such Grantor's sole expense, execute and deliver
to such Grantor such documents as such Grantor shall reasonably request to
evidence such termination. Upon any sale or other transfer of Collateral
permitted by the terms of Section 7.2.9 of the Credit Agreement, the security
interest created hereunder in such Collateral (but not in the proceeds thereof)
shall be deemed to be automatically released and the Administrative Agent will,
at such Grantor's sole expense, execute and deliver to such Grantor such
documents as such Grantor shall reasonably request to evidence such release.
SECTION 2.4. Grantor Remains Liable. Anything herein to the contrary
notwithstanding
(a) each Grantor shall remain liable under the contracts and
agreements included in the Collateral to the extent set forth therein, and
shall perform all of its duties and obligations under such contracts and
agreements to the same extent as if this Security Agreement had not been
executed,
(b) the exercise by the Administrative Agent of any of its rights
hereunder shall not release any Grantor from any of its duties or
obligations under any such contracts or agreements included in the
Collateral, and
(c) neither the Administrative Agent nor any other Secured Party
shall have any obligation or liability under any such contracts or
agreements included in the Collateral by reason of this Security
Agreement, nor shall the Administrative Agent or any other Secured Party
be obligated to perform any of the obligations or duties of any Grantor
thereunder or to take any action to collect or enforce any claim for
payment assigned hereunder.
SECTION 2.5. Security Interest Absolute. All rights of the Administrative
Agent and the security interests granted to the Administrative Agent hereunder,
and all obligations of each Grantor hereunder, shall be absolute and
unconditional, irrespective of
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(a) any lack of validity or enforceability of the Credit Agreement,
any Note or any other Loan Document;
(b) the failure of any Secured Party or any holder of any Note
(i) to assert any claim or demand or to enforce any right or
remedy against the Borrower, any other Obligor or any other Person
under the provisions of the Credit Agreement, any Note, any other
Loan Document or otherwise, or
(ii) to exercise any right or remedy against any other
guarantor of, or collateral securing, any Secured Obligations;
(c) any change in the time, manner or place of payment of, or in any
other term of, all or any of the Secured Obligations or any other
extension, compromise or renewal of any Secured Obligations;
(d) any reduction, limitation, impairment or termination of any
Secured Obligations for any reason, including any claim of waiver,
release, surrender, alteration or compromise, and shall not be subject to
(and each Grantor hereby waives any right to or claim of) any defense or
setoff, counterclaim, recoupment or termination whatsoever by reason of
the invalidity, illegality, nongenuineness, irregularity, compromise,
unenforceability of, or any other event or occurrence affecting, any
Secured Obligations or otherwise;
(e) any amendment to, rescission, waiver, or other modification of,
or any consent to departure from, any of the terms of the Credit
Agreement, any Note or any other Loan Document;
(f) any addition, exchange, release, surrender or non-perfection of
any collateral (including the Collateral), or any amendment to or waiver
or release of or addition to or consent to departure from any guaranty,
for any of the Secured Obligations; or
(g) any other circumstances which might otherwise constitute a
defense available to, or a legal or equitable discharge of, the Borrower,
any other Obligor, any surety or any guarantor.
SECTION 2.6. Postponement of Subrogation, etc. Each Grantor hereby agrees
that it will not exercise any rights which it may acquire by reason of any
payment made hereunder, whether by way of subrogation, reimbursement or
otherwise, until the prior payment in full in cash of all Secured Obligations,
the termination or expiration of all Letters of Credit, the termination of all
Rate Protection Agreements and the termination
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of all Commitments. Any amount paid to any Grantor on account of any payment
made hereunder prior to the payment in full in cash of all Secured Obligations
shall be held in trust for the benefit of the Secured Parties and each holder of
a Note and shall immediately be paid to the Secured Parties and each holder of a
Note and credited and applied against the Secured Obligations, whether matured
or unmatured, in accordance with the terms of the Credit Agreement; provided,
however, that if
(a) such Grantor has made payment to the Secured Parties and each
holder of a Note of all or any part of the Secured Obligations, and
(b) all Secured Obligations have been paid in full in cash, all
Letters of Credit have been terminated or expired, all Rate Protection
Agreements have been terminated and all Commitments have been permanently
terminated,
each Secured Party and each holder of a Note agrees that, at the requesting
Grantor's request, the Secured Parties and the holders of the Notes will execute
and deliver to such Grantor appropriate documents (without recourse and without
representation or warranty) necessary to evidence the transfer by subrogation to
such Grantor of an interest in the Secured Obligations resulting from such
payment by such Grantor. In furtherance of the foregoing, for so long as any
Secured Obligations, Commitments or Letters of Credit remain outstanding or any
Rate Protection Agreement remains in full force and effect, each Grantor shall
refrain from taking any action or commencing any proceeding against the Borrower
or any other Obligor (or its successors or assigns, whether in connection with a
bankruptcy proceeding or otherwise) to recover any amounts in respect of
payments made under this Security Agreement to any Secured Party or any holder
of a Note.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.1. Representations and Warranties. Each Grantor represents and
warrants to each Secured Party insofar as the representations and warranties
contained herein are applicable to such Grantor and its properties, as set forth
in this Article III.
SECTION 3.2. Location of Collateral, etc. All of the Equipment, Inventory
and lock boxes of such Grantor is located at the places specified in Item A,
Item B and Item C, respectively, of Schedule I hereto. None of the Equipment and
Inventory has, within the four months preceding the date of this Security
Agreement (if then owned by such Grantor), been located at any place other than
the places specified in Item A and Item B, respectively, of Schedule I hereto
except as set forth in a footnote thereto. The place(s) of business and chief
executive office of such Grantor and the office(s) where
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such Grantor keeps its records concerning the Receivables, and all originals of
all chattel paper which evidence Receivables, are located at the address set
forth in Item D of Schedule I hereto. Such Grantor has no trade names other than
those set forth in Item E of Schedule I hereto. During the four months preceding
the date hereof, such Grantor has not been known by any legal name different
from the one set forth on the signature page hereto, nor has such Grantor been
the subject of any merger or other corporate reorganization, except as set forth
in Item F of Schedule I hereto. If the Collateral includes any Inventory located
in the State of California, such Grantor is not a "retail merchant" within the
meaning of Section 9102 of the Uniform Commercial Code - Secured Transactions of
the State of California. All Receivables evidenced by a promissory note or other
instrument, negotiable document or chattel paper have been duly endorsed and
accompanied by duly executed instruments of transfer or assignment, all in form
and substance satisfactory to the Administrative Agent and delivered and pledged
to the Administrative Agent pursuant to Section 4.8. Such Grantor is not a party
to any Federal, state or local government contract except as set forth in Item G
of Schedule I hereto.
SECTION 3.3. Ownership, No Liens, etc. Such Grantor owns its Collateral
free and clear of any Lien, security interest, charge or encumbrance except for
the security interest created by this Security Agreement and except as permitted
by the Credit Agreement. No effective financing statement or other instrument
similar in effect covering all or any part of the Collateral is on file in any
recording office, except such as may have been filed in favor of the
Administrative Agent relating to this Security Agreement or as have been filed
in connection with Liens permitted pursuant to Section 7.2.3 of the Credit
Agreement or as to which a duly executed termination statement relating to such
financing statement or other instrument has been delivered to the Administrative
Agent on the Closing Date.
SECTION 3.4. Possession and Control. Such Grantor has exclusive possession
and control of its Equipment and Inventory.
SECTION 3.5. Negotiable Documents, Instruments and Chattel Paper. Such
Grantor has, contemporaneously herewith, delivered to the Administrative Agent
possession of all originals of all negotiable documents, instruments and chattel
paper currently owned or held by such Grantor (duly endorsed in blank, if
requested by the Administrative Agent).
SECTION 3.6. Intellectual Property Collateral. With respect to any
Intellectual Property Collateral the loss, impairment or infringement of which
might have a Material Adverse Effect:
(a) such Intellectual Property Collateral is subsisting and has not
been adjudged invalid or unenforceable, in whole or in part;
(b) such Intellectual Property Collateral is valid and enforceable;
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(c) such Grantor has made all necessary filings and recordations to
protect its interest in such Intellectual Property Collateral, including
recordations of all of its interests in the Patent Collateral and
Trademark Collateral in the United States Patent and Trademark Office and
in corresponding offices in countries in which the failure to so file
and/or record could reasonably have a Material Adverse Effect and its
claims to the Copyright Collateral in the United States Copyright Office
and in corresponding offices in countries in which the failure to so file
and/or record could reasonably have a Material Adverse Effect;
(d) such Grantor is the exclusive owner of the entire and
unencumbered right, title and interest in and to such Intellectual
Property Collateral and no claim has been made that the use of such
Intellectual Property Collateral does or may violate the asserted rights
of any third party; and
(e) such Grantor has performed and will continue to perform all acts
and has paid and will continue to pay all required fees and taxes to
maintain each and every such item of Intellectual Property Collateral in
full force and effect throughout the world, as applicable.
Such Grantor owns directly or is entitled to use by license or otherwise, all
patents, Trademarks, Trade Secrets, copyrights, mask works, licenses,
technology, know-how, processes and rights with respect to any of the foregoing
used in, necessary for or of importance to the conduct of such Grantor's
business.
SECTION 3.7. Validity, etc. This Security Agreement creates a valid first
priority security interest in the Collateral securing the payment of the Secured
Obligations, and
(a) in the case of Collateral comprised of certificated securities
or instruments, upon the delivery of such Collateral to the Administrative
Agent, such security interest will be a first priority perfected security
interest;
(b) in the case of Collateral comprised of uncertificated securities
with respect to which a security interest therein may not be perfected
under applicable law by the filing of a Uniform Commercial Code financing
statement, upon a "transfer" (as such term is used in Section 8-313 of the
U.C.C.) of such Collateral to the Administrative Agent, such security
interest will be a first priority perfected security interest; and
(c) in the case of all other Collateral, upon the filing of the
Uniform Commercial Code financing statements delivered by the Grantor to
the Administrative Agent with respect to such Collateral, such security
interest will be a first priority perfected security interest.
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Each Grantor has filed all Uniform Commercial Code financing statements referred
to above in the appropriate offices therefor (or has provided the Administrative
Agent with copies thereof suitable for filing in such offices) and has taken all
of the other actions referred to above necessary to create perfected,
first-priority security interests in the applicable Collateral.
SECTION 3.8. Authorization, Approval, etc. Except as have been obtained or
made and are in full force and effect (or otherwise provided for to the
satisfaction of the Agents), no authorization, approval or other action by, and
no notice to or filing with, any governmental authority or regulatory body is
required either
(a) for the grant by such Grantor of the security interest granted
hereby or for the execution, delivery and performance of this Security
Agreement by such Grantor, or
(b) for the perfection of or the exercise by the Administrative
Agent of its rights and remedies hereunder.
SECTION 3.9. Compliance with Laws. Such Grantor is in compliance with the
requirements of all applicable laws (including the provisions of the Fair Labor
Standards Act), rules, regulations and orders of every governmental authority,
the non-compliance with which could reasonably be expected to have a Material
Adverse Effect or which could reasonably be expected to materially adversely
affect the value of the Collateral or the worth of the Collateral as collateral
security.
ARTICLE IV
COVENANTS
SECTION 4.1. Certain Covenants. Each Grantor covenants and agrees that, so
long as any portion of the Secured Obligations shall remain unpaid, any Rate
Protection Agreements shall remain in full force and effect, any Letters of
Credit shall be outstanding or any Lender shall have any outstanding Commitment,
such Grantor will, unless the Required Lenders shall otherwise consent in
writing, perform, comply with and be bound by the obligations set forth in this
Article IV.
SECTION 4.2. As to Equipment and Inventory. Such Grantor hereby agrees
that it shall
(a) keep all the Equipment and Inventory (other than Inventory sold
in the ordinary course of business) at the places therefor specified in
Section 3.2 or, upon 30 days' prior written notice to the Administrative
Agent, at such other places in a jurisdiction where all representations
and warranties set forth in
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Article III (including Section 3.7) shall be true and correct, and all
action required pursuant to the first sentence of Section 4.8 shall have
been taken with respect to the Equipment and Inventory;
(b) cause the Equipment to be maintained and preserved as required
by Section 7.1.3 of the Credit Agreement; and promptly furnish to the
Administrative Agent a statement respecting any loss or damage to any of
such material Equipment; and
(c) pay promptly when due all property and other material taxes,
assessments and governmental charges or levies imposed upon, and all
claims (including claims for labor, materials and supplies) against, the
Equipment and Inventory, except to the extent the validity thereof is
being contested in good faith by appropriate proceedings and for which
adequate reserves in accordance with GAAP have been set aside.
SECTION 4.3. As to Receivables.
(a) Such Grantor shall keep its place(s) of business and chief
executive office and the office(s) where it keeps its records concerning
the Receivables, and all originals of all chattel paper which evidences
Receivables, located at the address(es) set forth in Item D of Schedule I
hereto, or, upon 30 days' prior written notice to the Administrative
Agent, at such other locations in a jurisdiction where all actions
required by the first sentence of Section 4.8 shall have been taken with
respect to the Receivables; not change its name except upon 30 days' prior
written notice to the Administrative Agent; hold and preserve such records
and chattel paper; and permit representatives of the Administrative Agent
at any time during normal business hours to inspect and make abstracts
from such records and chattel paper. In addition, the Grantor shall give
the Administrative Agent a supplement to Schedule I hereto on each date a
Compliance Certificate is required to be delivered to the Administrative
Agent under the Credit Agreement, which shall set forth any changes to the
information set forth in Section 3.2.
(b) Upon written notice by the Administrative Agent to such Grantor
pursuant to this Section 4.3(b), all proceeds of Collateral received by
such Grantor shall be delivered in kind to the Administrative Agent for
deposit to a deposit account (the "Collateral Account") of such Grantor
maintained with the Administrative Agent, and such Grantor shall not
commingle any such proceeds, and shall hold separate and apart from all
other property, all such proceeds in express trust for the benefit of the
Administrative Agent until delivery thereof is made to the Administrative
Agent. The Administrative Agent will not give the notice referred to in
the preceding sentence unless there shall have occurred and be continuing
a Default of the nature set forth in Section 8.1.9 of the Credit
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<PAGE>
Agreement or an Event of Default.
(c) The Administrative Agent shall have the right to apply any
amount in the Collateral Account to the payment of any Secured Obligations
which are due and payable or payable upon demand, or to the payment of any
Secured Obligations at any time that an Event of Default shall exist.
SECTION 4.4. As to Collateral.
(a) Until the occurrence and continuance of a Default of the nature
set forth in Section 8.1.9 of the Credit Agreement or an Event of Default,
and such time as the Administrative Agent shall notify such Grantor of the
revocation of such power and authority such Grantor (i) may in the
ordinary course of its business (except as otherwise permitted under the
Credit Agreement), at its own expense, sell, lease or furnish under the
contracts of service any of the Inventory normally held by such Grantor
for such purpose, and use and consume, in the ordinary course of its
business (except as otherwise permitted under the Credit Agreement), any
raw materials, work in process or materials normally held by such Grantor
for such purpose, (ii) will, at its own expense, endeavor to collect, as
and when due, all amounts due with respect to any of the Collateral,
including the taking of such action with respect to such collection as the
Administrative Agent may reasonably request following the occurrence of a
Default of the nature set forth in Section 8.1.9 of the Credit Agreement
or an Event of Default or, in the absence of such request, as such Grantor
may deem advisable, and (iii) may grant, in the ordinary course of
business (except as otherwise permitted under the Credit Agreement), to
any party obligated on any of the Collateral, any rebate, refund or
allowance to which such party may be lawfully entitled, and may accept, in
connection therewith, the return of goods, the sale or lease of which
shall have given rise to such Collateral. The Administrative Agent,
however, may, at any time following a Default of the nature set forth in
Section 8.1.9 of the Credit Agreement or an Event of Default, whether
before or after any revocation of such power and authority or the maturity
of any of the Secured Obligations, notify any parties obligated on any of
the Collateral to make payment to the Administrative Agent of any amounts
due or to become due thereunder and enforce collection of any of the
Collateral by suit or otherwise and surrender, release, or exchange all or
any part thereof, or compromise or extend or renew for any period (whether
or not longer than the original period) any indebtedness thereunder or
evidenced thereby. Upon request of the Administrative Agent following a
Default of the nature set forth in Section 8.1.9 of the Credit Agreement
or an Event of Default, such Grantor will, at its own expense, notify any
parties obligated on any of the Collateral to make payment to the
Administrative Agent of any amounts due or to become due thereunder.
(b) Following a Default of the nature set forth in Section 8.1.9 of
the Credit
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<PAGE>
Agreement or an Event of Default, the Administrative Agent is authorized
to endorse, in the name of such Grantor, any item, howsoever received by
the Administrative Agent, representing any payment on or other proceeds of
any of the Collateral.
SECTION 4.5. As to Intellectual Property Collateral. Each Grantor
covenants and agrees to comply with the following provisions as such provisions
relate to any Intellectual Property Collateral of such Grantor:
(a) such Grantor shall not, unless such Grantor shall either (i)
reasonably and in good faith determine (and notice of such determination
shall have been delivered to the Administrative Agent) that any of the
Patent Collateral is of negligible economic value to such Grantor, or (ii)
have a valid business purpose to do otherwise, do any act, or omit to do
any act, whereby any of the Patent Collateral may lapse or become
abandoned or dedicated to the public or unenforceable.
(b) such Grantor shall not, and such Grantor shall not permit any of
its licensees to, unless such Grantor shall either (i) reasonably and in
good faith determine (and notice of such determination shall have been
delivered to the Administrative Agent) that any of the Trademark
Collateral is of negligible economic value to such Grantor, or (ii) have a
valid business purpose to do otherwise,
(i) fail to continue to use any of the Trademark Collateral in
order to maintain all of the Trademark Collateral in full force free
from any claim of abandonment for non-use,
(ii) fail to maintain as in the past the quality of products
and services offered under all of the Trademark Collateral,
(iii) fail to employ all of the Trademark Collateral
registered with any Federal or state or foreign authority with an
appropriate notice of such registration,
(iv) adopt or use any other Trademark which is confusingly
similar or a colorable imitation of any of the Trademark Collateral,
(v) use any of the Trademark Collateral registered with any
Federal or state or foreign authority except for the uses for which
registration or application for registration of all of the Trademark
Collateral has been made, and
(vi) do or permit any act or knowingly omit to do any act
whereby
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<PAGE>
any of the Trademark Collateral may lapse or become invalid or
unenforceable.
(c) such Grantor shall not, unless such Grantor shall either (i)
reasonably and in good faith determine (and notice of such determination
shall have been delivered to the Administrative Agent) that any of the
Copyright Collateral or any of the Trade Secrets Collateral is of
negligible economic value to such Grantor, or (ii) have a valid business
purpose to do otherwise, do or permit any act or knowingly omit to do any
act whereby any of the Copyright Collateral or any of the Trade Secrets
Collateral may lapse or become invalid or unenforceable or placed in the
public domain except upon expiration of the end of an unrenewable term of
a registration thereof.
(d) such Grantor shall notify the Administrative Agent immediately
if it knows, or has reason to know, that any application or registration
relating to any material item of the Intellectual Property Collateral may
become abandoned or dedicated to the public or placed in the public domain
or invalid or unenforceable, or of any adverse determination or
development (including the institution of, or any such determination or
development in, any proceeding in the United States Patent and Trademark
Office, the United States Copyright Office or any foreign counterpart
thereof or any court) regarding such Grantor's ownership of any of the
Intellectual Property Collateral, its right to register the same or to
keep and maintain and enforce the same.
(e) in no event shall such Grantor or any of its agents, employees,
designees or licensees file an application for the registration of any
Intellectual Property Collateral with the United States Patent and
Trademark Office, the United States Copyright Office or any similar office
or agency in any other country or any political subdivision thereof,
unless it promptly informs the Administrative Agent, and upon request of
the Administrative Agent, executes and delivers any and all agreements,
instruments, documents and papers as the Administrative Agent may
reasonably request to evidence the Administrative Agent's security
interest in such Intellectual Property Collateral and the goodwill and
general intangibles of such Grantor relating thereto or represented
thereby.
(f) such Grantor shall take all necessary steps, including in any
proceeding before the United States Patent and Trademark Office, the
United States Copyright Office or any similar office or agency in any
other country or any political subdivision thereof, to maintain and pursue
any application (and to obtain the relevant registration) filed with
respect to, and to maintain any registration of, the Intellectual Property
Collateral, including the filing of applications for renewal, affidavits
of use, affidavits of incontestability and opposition, interference and
cancellation proceedings and the payment of fees and taxes (except to the
extent that dedication, abandonment or invalidation is
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<PAGE>
permitted under the foregoing clauses (a), (b) and (c)).
(g) such Grantor shall, contemporaneously herewith, execute and
deliver to the Administrative Agent a Trademark Security Agreement in the
form of Exhibit B hereto, and shall execute and deliver to the
Administrative Agent any other document required to acknowledge or
register or perfect the Administrative Agent's interest in any part of the
Intellectual Property Collateral.
SECTION 4.6. Insurance. Such Grantor will maintain or cause to be
maintained with responsible insurance companies insurance with respect to its
business and properties (including the Equipment and Inventory) against such
casualties and contingencies and of such types and in such amounts as is
required pursuant to the Credit Agreement and will, upon the request of the
Administrative Agent, furnish a certificate of a reputable insurance broker
setting forth the nature and extent of all insurance maintained by such Grantor
in accordance with this Section.
SECTION 4.7. Transfers and Other Liens. Such Grantor shall not:
(a) sell, assign (by operation of law or otherwise) or otherwise
dispose of any of the Collateral, except Inventory in the ordinary course
of business or as permitted by the Credit Agreement; or
(b) create or suffer to exist any Lien or other charge or
encumbrance upon or with respect to any of the Collateral to secure
Indebtedness of any Person or entity, except for the security interest
created by this Security Agreement and except as permitted by the Credit
Agreement.
SECTION 4.8. Further Assurances, etc. Such Grantor agrees that, from time
to time at its own expense, it will promptly execute and deliver all further
instruments and documents, and take all further action, that may be necessary or
desirable, or that the Administrative Agent may request, in order to perfect,
preserve and protect any security interest granted or purported to be granted
hereby or to enable the Administrative Agent to exercise and enforce its rights
and remedies hereunder with respect to any Collateral. Without limiting the
generality of the foregoing, such Grantor will
(a) mark conspicuously each document included in the Inventory, each
chattel paper included in the Receivables and each Related Contract and,
at the request of the Administrative Agent, each of its records pertaining
to the Collateral with a legend, in form and substance satisfactory to the
Administrative Agent, indicating that such document, chattel paper,
Related Contract or Collateral is subject to the security interest granted
hereby;
(b) if any Receivable shall be evidenced by a promissory note or
other instrument, negotiable document or chattel paper, deliver and pledge
to the
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<PAGE>
Administrative Agent hereunder such promissory note, instrument,
negotiable document or chattel paper duly endorsed and accompanied by duly
executed instruments of transfer or assignment, all in form and substance
satisfactory to the Administrative Agent;
(c) execute and file such financing or continuation statements, or
amendments thereto, and such other instruments or notices (including any
assignment of claim form under or pursuant to the federal assignment of
claims statute, 31 U.S.C. ss. 3726, any successor or amended version
thereof or any regulation promulgated under or pursuant to any version
thereof), as may be necessary or desirable, or as the Administrative Agent
may request, in order to perfect and preserve the security interests and
other rights granted or purported to be granted to the Administrative
Agent hereby; and
(d) furnish to the Administrative Agent, from time to time at the
Administrative Agent's request, statements and schedules further
identifying and describing the Collateral and such other reports in
connection with the Collateral as the Administrative Agent may reasonably
request, all in reasonable detail.
With respect to the foregoing and the grant of the security interest hereunder,
such Grantor hereby authorizes the Administrative Agent to file one or more
financing or continuation statements, and amendments thereto, relative to all or
any part of the Collateral without the signature of such Grantor where permitted
by law. A carbon, photographic or other reproduction of this Security Agreement
or any financing statement covering the Collateral or any part thereof shall be
sufficient as a financing statement where permitted by law.
ARTICLE V
THE ADMINISTRATIVE AGENT
SECTION 5.1. Administrative Agent Appointed Attorney-in-Fact. Each Grantor
hereby irrevocably appoints the Administrative Agent such Grantor's
attorney-in-fact, with full authority in the place and stead of such Grantor and
in the name of such Grantor or otherwise, from time to time in the
Administrative Agent's discretion, following the occurrence and continuation of
a Default of the nature set forth in Section 8.1.9 of the Credit Agreement or an
Event of Default, to take any action and to execute any instrument which the
Administrative Agent may deem necessary or advisable to accomplish the purposes
of this Security Agreement, including:
(a) to ask, demand, collect, sue for, recover, compromise, receive
and give acquittance and receipts for moneys due and to become due under
or in respect of any of the Collateral;
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<PAGE>
(b) to receive, endorse, and collect any drafts or other
instruments, documents and chattel paper, in connection with clause (a)
above;
(c) to file any claims or take any action or institute any
proceedings which the Administrative Agent may deem necessary or desirable
for the collection of any of the Collateral or otherwise to enforce the
rights of the Administrative Agent with respect to any of the Collateral;
and
(d) to perform the affirmative obligations of such Grantor hereunder
(including all obligations of such Grantor pursuant to Section 4.8).
Such Grantor hereby acknowledges, consents and agrees that the power of
attorney granted pursuant to this Section is irrevocable and coupled with an
interest.
SECTION 5.2. Administrative Agent May Perform. If any Grantor fails to
perform any agreement contained herein, the Administrative Agent may itself
perform, or cause performance of, such agreement, and the expenses of the
Administrative Agent incurred in connection therewith shall be payable by such
Grantor pursuant to Section 6.2.
SECTION 5.3. Administrative Agent Has No Duty. In addition to, and not in
limitation of, Section 2.4, the powers conferred on the Administrative Agent
hereunder are solely to protect its interest (on behalf of the Secured Parties)
in the Collateral and shall not impose any duty on it to exercise any such
powers. Except for reasonable care of any Collateral in its possession and the
accounting for moneys actually received by it hereunder, the Administrative
Agent shall have no duty as to any Collateral or as to the taking of any
necessary steps to preserve rights against prior parties or any other rights
pertaining to any Collateral.
SECTION 5.4. Reasonable Care. The Administrative Agent is required to
exercise reasonable care in the custody and preservation of any of the
Collateral in its possession; provided, however, the Administrative Agent shall
be deemed to have exercised reasonable care in the custody and preservation of
any of the Collateral, if it takes such action for that purpose as any Grantor
reasonably requests in writing at times other than upon the occurrence and
during the continuance of any Event of Default, but failure of the
Administrative Agent to comply with any such request at any time shall not in
itself be deemed a failure to exercise reasonable care.
ARTICLE VI
REMEDIES
SECTION 6.1. Certain Remedies. If any Event of Default shall have occurred
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<PAGE>
and be continuing:
(a) The Administrative Agent may exercise in respect of the
Collateral, in addition to other rights and remedies provided for herein
or otherwise available to it, all the rights and remedies of a secured
party on default under the U.C.C. (whether or not the U.C.C. applies to
the affected Collateral) and also may
(i) require each Grantor to, and such Grantor hereby agrees
that it will, at its expense and upon request of the Administrative
Agent forthwith, assemble all or part of the Collateral as directed
by the Administrative Agent and make it available to the
Administrative Agent at a place to be designated by the
Administrative Agent which is reasonably convenient to both parties,
and
(ii) without notice except as specified below, sell the
Collateral or any part thereof in one or more parcels at public or
private sale, at any of the Administrative Agent's offices or
elsewhere, for cash, on credit or for future delivery, and upon such
other terms as the Administrative Agent may deem commercially
reasonable. Each Grantor agrees that, to the extent notice of sale
shall be required by law, at least ten days' prior notice to such
Grantor of the time and place of any public sale or the time after
which any private sale is to be made shall constitute reasonable
notification. The Administrative Agent shall not be obligated to
make any sale of Collateral regardless of notice of sale having been
given. The Administrative Agent may adjourn any public or private
sale from time to time by announcement at the time and place fixed
therefor, and such sale may, without further notice, be made at the
time and place to which it was so adjourned.
(b) All cash proceeds received by the Administrative Agent in
respect of any sale of, collection from, or other realization upon, all or
any part of the Collateral shall be applied by the Administrative Agent
against, all or any part of the Obligations as follows:
(i) first, to the payment of any amounts payable to the
Administrative Agent pursuant to Section 11.3 of the Credit
Agreement and Section 6.2;
(ii) second, to the equal and ratable payment of Obligations,
in accordance with each Secured Party's Obligations owing to it
under or pursuant to the Credit Agreement or any other Loan
Document, or under or pursuant to any Hedging Obligation included in
the Obligations as to each Secured Party, applied
(A) first to fees and expense reimbursements then due to
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<PAGE>
such Secured Party,
(B) then to interest due to such Secured Party,
(C) then to pay or prepay principal of the Loans owing
to, or to reduce the "credit exposure" of, such Secured Party
under such Hedging Obligation, as the case may be, and
(D) then to pay the remaining outstanding Obligations
and cash collateralize all Letter of Credit Outstandings;
(iii) third, without duplication of any amounts paid pursuant
to clause (b)(ii) above, to the Indemnified Parties to the extent of
any amounts owing pursuant to Section 11.4 of the Credit Agreement;
and
(iv) fourth, to be held as additional collateral security
until the payment in full in cash of all of the Obligations, the
termination or expiration of all Letters of Credit, the termination
of all Rate Protection Agreements and the termination of all
Commitments, after which such remaining cash proceeds shall be paid
over to the applicable Grantor or to whomsoever may be lawfully
entitled to receive such surplus.
For purposes of this Security Agreement, the "credit exposure" at any time
of any Secured Party with respect to a Hedging Obligation to which such
Secured Party is a party shall be determined at such time in accordance
with the customary methods of calculating credit exposure under similar
arrangements by the counterparty to such arrangements, taking into account
potential interest rate movements and the respective termination
provisions and notional principal amount and term of such Hedging
Obligation.
SECTION 6.2. Indemnity and Expenses.
(a) Each Grantor jointly and severally agrees to indemnify the
Administrative Agent from and against any and all claims, losses and
liabilities arising out of or resulting from this Security Agreement
(including enforcement of this Security Agreement), except claims, losses
or liabilities resulting from the Administrative Agent's gross negligence
or wilful misconduct.
(b) Each Grantor will upon demand pay to the Administrative Agent
the amount of any and all reasonable expenses, including the reasonable
fees and disbursements of its counsel and of any experts and agents, which
the Administrative Agent may incur in connection with
(i) the administration of this Security Agreement,
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<PAGE>
(ii) the custody, preservation, use or operation of, or the
sale of, collection from, or other realization upon, any of the
Collateral,
(iii) the exercise or enforcement of any of the rights of the
Administrative Agent or the Secured Parties hereunder, and
(iv) the failure by any Grantor to perform or observe any of
the provisions hereof.
ARTICLE VII
MISCELLANEOUS PROVISIONS
SECTION 7.1. Loan Document. This Security Agreement is a Loan Document
executed pursuant to the Credit Agreement and shall (unless otherwise expressly
indicated herein) be construed, administered and applied in accordance with the
terms and provisions thereof.
SECTION 7.2. Amendments; etc. No amendment to or waiver of any provision
of this Security Agreement nor consent to any departure by any Grantor herefrom,
shall in any event be effective unless the same shall be in writing and signed
by the Administrative Agent (on behalf of the Lenders or the Required Lenders,
as the case may be), and then such waiver or consent shall be effective only in
the specific instance and for the specific purpose for which given.
SECTION 7.3. Addresses for Notices. All notices and other communications
provided for hereunder shall be in writing (including telegraphic communication)
and, if to any Grantor, mailed or telecopied or delivered to it, addressed to it
in care of the Borrower at the address of the Borrower specified in the Credit
Agreement, if to the Administrative Agent, mailed or telecopied or delivered to
it, addressed to it at the address of the Administrative Agent specified in the
Credit Agreement. All such notices and other communications, when mailed and
properly addressed with postage prepaid or if properly addressed and sent by
pre-paid courier service, shall be deemed given when received; any such notice
or communication, if transmitted by telecopier, shall be deemed given when
transmitted and electronically confirmed.
SECTION 7.4. Additional Grantors. Upon the execution and delivery by any
other Person of an instrument in the form of Annex I hereto, such Person shall
become a "Grantor" hereunder with the same force and effect as if originally
named as a Grantor herein. The execution and delivery of any such instrument
shall not require the consent of any other Grantor hereunder. The rights and
obligations of each Grantor hereunder shall remain in full force and effect
notwithstanding the addition of any new
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<PAGE>
Grantor as a party to this Security Agreement.
SECTION 7.5. Section Captions. Section captions used in this Security
Agreement are for convenience of reference only, and shall not affect the
construction of this Security Agreement.
SECTION 7.6. Severability. Wherever possible each provision of this
Security Agreement shall be interpreted in such manner as to be effective and
valid under applicable law, but if any provision of this Security Agreement
shall be prohibited by or invalid under such law, such provision shall be
ineffective to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of this
Security Agreement.
SECTION 7.7. Counterparts. This Security Agreement may be executed by the
parties hereto in several counterparts, each of which shall be deemed an
original and all of which shall constitute together but one and the same
agreement.
SECTION 7.8. Governing Law, Entire Agreement, etc. THIS SECURITY AGREEMENT
SHALL BE DEEMED TO BE A CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF
THE STATE OF NEW YORK, EXCEPT TO THE EXTENT THAT THE VALIDITY OR PERFECTION OF
THE SECURITY INTEREST HEREUNDER, OR REMEDIES HEREUNDER, IN RESPECT OF ANY
PARTICULAR COLLATERAL ARE GOVERNED BY THE LAWS OF A JURISDICTION OTHER THAN THE
STATE OF NEW YORK. THIS SECURITY AGREEMENT AND THE OTHER LOAN DOCUMENTS
CONSTITUTE THE ENTIRE UNDERSTANDING AMONG THE PARTIES HERETO WITH RESPECT TO THE
SUBJECT MATTER HEREOF AND THEREOF AND SUPERSEDE ANY PRIOR AGREEMENTS, WRITTEN OR
ORAL, WITH RESPECT THERETO.
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<PAGE>
IN WITNESS WHEREOF, each Grantor has caused this Security Agreement to be
duly executed and delivered by its officer thereunto duly authorized as of the
date first above written.
[NAME OF GRANTOR]
By
Name:
Title:
[NAME OF GRANTOR]
By
Name:
Title:
[NAME OF GRANTOR]
By
Name:
Title:
FLEET NATIONAL BANK,
as Administrative Agent
By
Name:
Title:
<PAGE>
SCHEDULE I
to Subsidiary
Security Agreement
([NAME OF GRANTOR])
Item A. Location of Equipment
---------------------
Description Location
----------- --------
1.
2.
3.
Item B. Location of Inventory
---------------------
Description Location
----------- --------
1.
2.
3.
Item C. Location of Lock Boxes
----------------------
Contact
Bank Name and Address Account Number Person
--------------------- -------------- ------
1.
2.
3.
Item D. Place(s) of Business and Chief Executive Office
-----------------------------------------------
Item E. Trade Names
-----------
<PAGE>
Item F. Merger or Other Corporate Reorganization
----------------------------------------
Item G. Government Contracts
--------------------
<PAGE>
SCHEDULE II
to Subsidiary
Security Agreement
([NAME OF GRANTOR])
Item A. Patents
-------
Issued Patents
--------------
*Country Patent No. Issue Date Inventor(s) Title
------- ---------- ---------- ----------- -----
Pending Patent Applications
---------------------------
*Country Serial No. Filing Date Inventor(s) Title
------- ---------- ----------- ----------- -----
Patent Applications in Preparation
----------------------------------
Expected
*Country Docket No. Filing Date Inventor(s) Title
------- ---------- ----------- ----------- -----
Item B. Patent Licenses
---------------
*Country or Effective Expiration Subject
Territory Licensor Licensee Date Date Matter
--------- -------- -------- --------- ---------- -------
- --------
* List items related to the United States first for ease of recordation.
List items related to other countries next, grouped by country and in
alphabetical order by country name.
<PAGE>
SCHEDULE III
to Subsidiary
Security Agreement
([NAME OF GRANTOR])
Item A. Trademarks
----------
Registered Trademarks
---------------------
*Country Trademark Registration No. Registration Date
- -------- --------- ---------------- -----------------
Pending Trademark Applications
*Country Trademark Serial No. Filing Date
- -------- --------- ---------- -----------
Trademark Applications in Preparation
-------------------------------------
Expected Products/
*Country Trademark Docket No. Filing Date Services
------- --------- ---------- ----------- --------
- --------
* List items related to the United States first for ease of recordation.
List items related to other countries next, grouped by country and in
alphabetical order by country name.
<PAGE>
Item B. Trademark Licenses
------------------
*Country or Effective Expiration
Territory Trademark Licensor Licensee Date Date
--------- --------- -------- -------- --------- ----------
<PAGE>
SCHEDULE IV
to Subsidiary
Security Agreement
([NAME OF GRANTOR])
Item A. Copyrights/Mask Works
---------------------
Registered Copyrights/Mask Works
--------------------------------
*Country Registration No. Registration Date Author(s) Title
------- ---------------- ----------------- --------- -----
Copyright/Mask Work Pending Registration Applications
-----------------------------------------------------
*Country Serial No. Filing Date Author(s) Title
------- ---------- ----------- --------- -----
Copyright/Mask Work Registration Applications in Preparation
------------------------------------------------------------
Expected
*Country Docket No. Filing Date Author(s) Title
------- ---------- ----------- --------- -----
- --------
* List items related to the United States first for ease of recordation.
List items related to other countries next, grouped by country and in
alphabetical order by country name.
<PAGE>
Item B. Copyright/Mask Work Licenses
----------------------------
*Country or Effective Expiration Subject
Territory Licensor Licensee Date Date Matter
--------- -------- -------- --------- ---------- ------
<PAGE>
SCHEDULE V
to Subsidiary
Security Agreement
([NAME OF GRANTOR])
Trade Secret or Know-How Licenses
*Country or Effective Expiration Subject
Territory Licensor Licensee Date Date Matter
--------- -------- -------- --------- ---------- ------
- --------
* List items related to the United States first for ease of recordation.
List items related to other countries next, grouped by country and in
alphabetical order by country name.
<PAGE>
EXHIBIT A
to Subsidiary
Security Agreement
PATENT SECURITY AGREEMENT
This PATENT SECURITY AGREEMENT (this "Agreement"), dated as of __________
__, ____, is made between ___________________, a ____________ (the "Grantor"),
and FLEET NATIONAL BANK, as administrative agent (together with its successor(s)
thereto in such capacity, the "Administrative Agent") for each of the Secured
Parties;
W I T N E S S E T H :
WHEREAS, pursuant to a Second Amended and Restated Credit Agreement, dated
as of March 17, 1999, amending and restating in its entirety that certain
Amended and Restated Credit Agreement, dated as of September 11, 1998 (as
amended prior to the Amendment Effective Date) (as so amended and restated, and
together with all amendments, supplements, restatements and other modifications,
if any, from time to time thereafter made thereto, the "Credit Agreement"),
among Duane Reade, a New York general partnership (the "Borrower"), each of the
Parent Guarantors named therein, the various financial institutions as are, or
may from time to time become, parties thereto (each, individually, a "Lender",
and collectively, the "Lenders"), DLJ Capital Funding, Inc., as Syndication
Agent, Fleet National Bank, as the Administrative Agent and Credit Lyonnais New
York Branch, as the Documentation Agent, the Lenders and the Issuer have
extended Commitments to make Credit Extensions to the Borrower;
WHEREAS, in connection with the Credit Agreement, the Grantor has executed
and delivered a Subsidiary Security Agreement, dated as of ________ __, ____ (as
amended, supplemented, amended and restated or otherwise modified from time to
time, the "Security Agreement");
WHEREAS, as a condition precedent to the making and maintenance of the
Credit Extensions under the Credit Agreement, the Grantor is required to execute
and deliver this Agreement and to grant to the Administrative Agent a continuing
security interest in all of the Patent Collateral (as defined below) to secure
all Secured Obligations;
WHEREAS, each Grantor is a Subsidiary of the Borrower;
WHEREAS, the Grantor has duly authorized the execution, delivery and
<PAGE>
performance of this Agreement; and
WHEREAS, it is in the best interests of the Grantor to execute this
Security Agreement inasmuch as the Grantor will derive substantial direct and
indirect benefits from the Credit Extensions made from time to time to the
Borrower by the Lenders and the Issuers pursuant to the Credit Agreement;
NOW, THEREFORE, for good and valuable consideration, the receipt of which
is hereby acknowledged, and in order to induce the Lenders and the Issuer to
make and maintain Credit Extensions to the Borrower pursuant to the Credit
Agreement, and to induce the Secured Parties to enter into Rate Protection
Agreements, the Grantor agrees, for the benefit of each Secured Party, as
follows:
SECTION 1. Definitions. Unless otherwise defined herein or the context
otherwise requires, terms used in this Agreement, including its preamble and
recitals, have the meanings provided (or incorporated by reference) in the
Security Agreement.
SECTION 2. Grant of Security Interest. For good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, to
secure all of the Secured Obligations, the Grantor does hereby mortgage, pledge
and hypothecate to the Administrative Agent, and grant to the Administrative
Agent a security interest in, for its benefit and the benefit of each Secured
Party, all of the following property (the "Patent Collateral"), whether now
owned or hereafter acquired or existing by it:
(a) all letters patent and applications for letters patent
throughout the world, including all patent applications in preparation for
filing anywhere in the world and including each patent and patent
application referred to in Item A of Attachment 1 attached hereto;
(b) all reissues, divisions, continuations, continuations-in-part,
extensions, renewals and reexaminations of any of the items described in
clause (a);
(c) all patent licenses, including each patent license referred to
in Item B of Attachment 1 attached hereto; and
(d) all proceeds of, and rights associated with, the foregoing
(including license royalties and proceeds of infringement suits), the
right to sue third parties for past, present or future infringements of
any patent or patent application, including any patent or patent
application referred to in Item A of Attachment 1 attached hereto, and for
breach or enforcement of any patent license, including any patent license
referred to in Item B of Attachment 1 attached hereto, and all rights
corresponding thereto throughout the world.
SECTION 3. Security Agreement. This Agreement has been executed and
-36-
<PAGE>
delivered by the Grantor for the purpose of registering the security interest of
the Administrative Agent in the Patent Collateral with the United States Patent
and Trademark Office and corresponding offices in other countries of the world.
The security interest granted hereby has been granted as a supplement to, and
not in limitation of, the security interest granted to the Administrative Agent
for its benefit and the benefit of each Secured Party under the Security
Agreement. The Security Agreement (and all rights and remedies of the
Administrative Agent and each Secured Party thereunder) shall remain in full
force and effect in accordance with its terms.
SECTION 4. Release of Security Interest. Upon payment in full in cash of
all Secured Obligations, the termination or expiry of all Letters of Credit, the
termination of all Rate Protection Agreements and the termination of all
Commitments, the Administrative Agent shall, at the Grantor's expense, execute
and deliver to the Grantor all instruments and other documents as may be
necessary or proper to release the lien on and security interest in the Patent
Collateral which has been granted hereunder.
SECTION 5. Acknowledgment. The Grantor does hereby further acknowledge and
affirm that the rights and remedies of the Administrative Agent with respect to
the security interest in the Patent Collateral granted hereby are more fully set
forth in the Security Agreement, the terms and provisions of which (including
the remedies provided for therein) are incorporated by reference herein as if
fully set forth herein.
SECTION 6. Loan Document, etc. This Agreement is a Loan Document executed
pursuant to the Credit Agreement and shall (unless otherwise expressly indicated
herein) be construed, administered and applied in accordance with the terms and
provisions of the Credit Agreement.
SECTION 7. Counterparts. This Agreement may be executed by the parties
hereto in several counterparts, each of which shall be deemed to be an original
and all of which shall constitute together but one and the same agreement.
-37-
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their respective officers thereunto duly
authorized as of the day and year first above written.
[NAME OF GRANTOR]
By
Name:
Title:
FLEET NATIONAL BANK,
as Administrative Agent
By
Name:
Title:
-38-
<PAGE>
ATTACHMENT 1
to Subsidiary Patent
Security Agreement
Item A. Patents
-------
Issued Patents
--------------
**Country Patent No. Issue Date Inventor(s) Title
------- ---------- ---------- ----------- -----
Pending Patent Applications
---------------------------
*Country Serial No. Filing Date Inventor(s) Title
------- ---------- ----------- ----------- -----
Patent Applications in Preparation
----------------------------------
Expected
*Country Docket No. Filing Date Inventor(s) Title
------- ---------- ----------- ----------- -----
Item B. Patent Licenses
---------------
*Country or Effective Expiration Subject
Territory Licensor Licensee Date Date Matter
--------- -------- -------- --------- ---------- ------
- --------
* List items related to the United States first for ease of recordation.
List items related to other countries next, grouped by country and in
alphabetical order by country name.
<PAGE>
EXHIBIT B
to Subsidiary
Security Agreement
TRADEMARK SECURITY AGREEMENT
This TRADEMARK SECURITY AGREEMENT (this "Agreement"), dated as of
__________ __, ____, is made between _____________________, a ___________
__________ (the "Grantor"), and FLEET NATIONAL BANK, as administrative agent
(together with its successor(s) thereto in such capacity, the "Administrative
Agent") for each of the Secured Parties;
W I T N E S S E T H :
WHEREAS, pursuant to a Second Amended and Restated Credit Agreement, dated
as of March 17, 1999, amending and restating in its entirety that certain
Amended and Restated Credit Agreement, dated as of September 11, 1998 (as
amended prior to the Amendment Effective Date) (as so amended and restated, and
together with all amendments, supplements, restatements and other modifications,
if any, from time to time thereafter made thereto, the "Credit Agreement"),
among Duane Reade, a New York general partnership (the "Borrower"), each of the
Parent Guarantors named therein, the various financial institutions as are, or
may from time to time become, parties thereto (each, individually, a "Lender",
and collectively, the "Lenders"), DLJ Capital Funding, Inc., as Syndication
Agent, Fleet National Bank, as the Administrative Agent and Credit Lyonnais New
York Branch, as the Documentation Agent, the Lenders and the Issuer have
extended Commitments to make Credit Extensions to the Borrower;
WHEREAS, in connection with the Credit Agreement, the Grantor has executed
and delivered a Subsidiary Security Agreement, dated as of __________ __, ____
(as amended, supplemented, amended and restated or otherwise modified from time
to time, the "Security Agreement");
WHEREAS, as a condition precedent to the making and maintenance of the
Credit Extensions under the Credit Agreement, the Grantor is required to execute
and deliver this Agreement and to grant to the Administrative Agent a continuing
security interest in all of the Trademark Collateral (as defined below) to
secure all Secured Obligations;
WHEREAS, each Grantor is a Subsidiary of the Borrower;
WHEREAS, the Grantor has duly authorized the execution, delivery and
<PAGE>
performance of this Agreement; and
WHEREAS, it is in the best interests of the Grantor to execute this
Security Agreement inasmuch as the Grantor will derive substantial direct and
indirect benefits from the Credit Extensions made from time to time to the
Borrower by the Lenders and the Issuer pursuant to the Credit Agreement;
NOW, THEREFORE, for good and valuable consideration, the receipt of which
is hereby acknowledged, and in order to induce the Lenders and the Issuer to
make and maintain Credit Extensions to the Borrower pursuant to the Credit
Agreement, and to induce the Secured Parties to enter into Rate Protection
Agreements, the Grantor agrees, for the benefit of each Secured Party, as
follows:
SECTION 1. Definitions. Unless otherwise defined herein or the context
otherwise requires, terms used in this Agreement, including its preamble and
recitals, have the meanings provided (or incorporated by reference) in the
Security Agreement.
SECTION 2. Grant of Security Interest. For good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, to
secure all of the Secured Obligations, the Grantor does hereby mortgage, pledge
and hypothecate to the Administrative Agent, and grant to the Administrative
Agent a security interest in, for its benefit and the benefit of each Secured
Party, all of the following property (the "Trademark Collateral"), whether now
owned or hereafter acquired or existing by it:
(a) all trademarks, trade names, corporate names, company names,
business names, fictitious business names, trade styles, service marks,
certification marks, collective marks, logos, other source of business
identifiers, prints and labels on which any of the foregoing have appeared
or appear, designs and general intangibles of a like nature (all of the
foregoing items in this clause (a) being collectively called a
"Trademark"), now existing anywhere in the world or hereafter adopted or
acquired, whether currently in use or not, all registrations and
recordings thereof and all applications in connection therewith, whether
pending or in preparation for filing, including registrations, recordings
and applications in the United States Patent and Trademark Office or in
any office or agency of the United States of America or any State thereof
or any foreign country, including those referred to in Item A of
Attachment 1 attached hereto;
(b) all Trademark licenses, including each Trademark license
referred to in Item B of Attachment 1 attached hereto;
(c) all reissues, extensions or renewals of any of the items
described in clauses (a) and (b);
-41-
<PAGE>
(d) all of the goodwill of the business connected with the use of,
and symbolized by the items described in, clauses (a) and (b); and
(e) all proceeds of, and rights associated with, the foregoing,
including any claim by the Grantor against third parties for past, present
or future infringement or dilution of any Trademark, Trademark
registration or Trademark license, including any Trademark, Trademark
registration or Trademark license referred to in Item A and Item B of
Attachment 1 attached hereto, or for any injury to the goodwill associated
with the use of any such Trademark or for breach or enforcement of any
Trademark license.
SECTION 3. Security Agreement. This Agreement has been executed and
delivered by the Grantor for the purpose of registering the security interest of
the Administrative Agent in the Trademark Collateral with the United States
Patent and Trademark Office and corresponding offices in other countries of the
world. The security interest granted hereby has been granted as a supplement to,
and not in limitation of, the security interest granted to the Administrative
Agent for its benefit and the benefit of each Secured Party under the Security
Agreement. The Security Agreement (and all rights and remedies of the
Administrative Agent and each Secured Party thereunder) shall remain in full
force and effect in accordance with its terms.
SECTION 4. Release of Security Interest. Upon payment in full in cash of
all Secured Obligations, the termination or expiry of all Letters of Credit, the
termination of all Rate Protection Agreements and the termination of all
Commitments, the Administrative Agent shall, at the Grantor's expense, execute
and deliver to the Grantor all instruments and other documents as may be
necessary or proper to release the lien on and security interest in the
Trademark Collateral which has been granted hereunder.
SECTION 5. Acknowledgment. The Grantor does hereby further acknowledge and
affirm that the rights and remedies of the Administrative Agent with respect to
the security interest in the Trademark Collateral granted hereby are more fully
set forth in the Security Agreement, the terms and provisions of which
(including the remedies provided for therein) are incorporated by reference
herein as if fully set forth herein.
SECTION 6. Loan Document, etc. This Agreement is a Loan Document executed
pursuant to the Credit Agreement and shall (unless otherwise expressly indicated
herein) be construed, administered and applied in accordance with the terms and
provisions of the Credit Agreement.
SECTION 7. Counterparts. This Agreement may be executed by the parties
hereto in several counterparts, each of which shall be deemed to be an original
and all of which shall constitute together but one and the same agreement.
-42-
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their respective officers thereunto duly
authorized as of the day and year first above written.
[NAME OF GRANTOR]
By
Name:
Title:
FLEET NATIONAL BANK,
as Administrative Agent
By
Name:
Title:
-43-
<PAGE>
ATTACHMENT 1
to Subsidiary Trademark
Security Agreement
Item A. Trademarks
----------
Registered Trademarks
---------------------
*Country Trademark Registration No. Registration Date
------- --------- ---------------- -----------------
Pending Trademark Applications
------------------------------
*Country Trademark Serial No. Filing Date
------- --------- ---------- -----------
Trademark Applications in Preparation
-------------------------------------
Expected Products/
*Country Trademark Docket No. Filing Date Services
------- --------- ---------- ----------- --------
- --------
* List items related to the United States first for ease of recordation.
List items related to other countries next, grouped by country and in
alphabetical order by country name.
<PAGE>
Item B. Trademark Licenses
------------------
*Country or Effective Expiration
Territory Trademark Licensor Licensee Date Date
--------- --------- -------- -------- --------- ----------
<PAGE>
EXHIBIT C
to Subsidiary
Security Agreement
COPYRIGHT SECURITY AGREEMENT
This COPYRIGHT SECURITY AGREEMENT (this "Agreement"), dated as of
__________ __, ____, is made between _____________________, a __________ (the
"Grantor"), and FLEET NATIONAL BANK, as administrative agent (together with its
successor(s) thereto in such capacity, the "Administrative Agent") for each of
the Secured Parties;
W I T N E S S E T H :
WHEREAS, pursuant to a Second Amended and Restated Credit Agreement, dated
as of March 17, 1999, amending and restating in its entirety that certain
Amended and Restated Credit Agreement, dated as of September 11, 1998 (as
amended prior to the Amendment Effective Date) (as so amended and restated, and
together with all amendments, supplements, restatements and other modifications,
if any, from time to time thereafter made thereto, the "Credit Agreement"),
among Duane Reade, a New York general partnership (the "Borrower"), each of the
Parent Guarantors named therein, the various financial institutions as are, or
may from time to time become, parties thereto (each, individually, a "Lender",
and collectively, the "Lenders"), DLJ Capital Funding, Inc., as Syndication
Agent, Fleet National Bank, as the Administrative Agent and Credit Lyonnais New
York Branch, as the Documentation Agent, the Lenders and the Issuer have
extended Commitments to make Credit Extensions to the Borrower;
WHEREAS, in connection with the Credit Agreement, the Grantor has executed
and delivered a Subsidiary Security Agreement, dated as of __________ __, ____
(as amended, supplemented, amended and restated or otherwise modified from time
to time, the "Security Agreement");
WHEREAS, as a condition precedent to the making and maintenance of the
Credit Extensions under the Credit Agreement, the Grantor is required to execute
and deliver this Agreement and to grant to the Administrative Agent a continuing
security interest in all of the Copyright Collateral (as defined below) to
secure all Secured Obligations;
WHEREAS, each Grantor is a Subsidiary of the Borrower;
WHEREAS, the Grantor has duly authorized the execution, delivery and
<PAGE>
performance of this Agreement; and
WHEREAS, it is in the best interests of the Grantor to execute this
Security Agreement inasmuch as the Grantor will derive substantial direct and
indirect benefits from the Credit Extensions made from time to time to the
Borrower by the Lenders and the Issuer pursuant to the Credit Agreement;
NOW, THEREFORE, for good and valuable consideration, the receipt of which
is hereby acknowledged, and in order to induce the Lenders and the Issuer to
make and maintain Credit Extensions to the Borrower pursuant to the Credit
Agreement, and to induce the Secured Parties to enter into Rate Protection
Agreements, the Grantor agrees, for the benefit of each Secured Party, as
follows:
SECTION 1. Definitions. Unless otherwise defined herein or the context
otherwise requires, terms used in this Agreement, including its preamble and
recitals, have the meanings provided (or incorporated by reference) in the
Security Agreement.
SECTION 2. Grant of Security Interest. For good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, to
secure all of the Secured Obligations, the Grantor does hereby mortgage, pledge
and hypothecate to the Administrative Agent, and grant to the Administrative
Agent a security interest in, for its benefit and the benefit of each Secured
Party, all of the following property (the "Copyright Collateral"), whether now
owned or hereafter acquired or existing by it, being all copyrights (including
all copyrights for semi-conductor chip product mask works) of the Grantor,
whether statutory or common law, registered or unregistered, now or hereafter in
force throughout the world including all of the Grantor's right, title and
interest in and to all copyrights registered in the United States Copyright
Office or anywhere else in the world and also including the copyrights referred
to in Item A of Attachment 1 attached hereto, and all applications for
registration thereof, whether pending or in preparation, all copyright licenses,
including each copyright license referred to in Item B of Attachment 1 attached
hereto, the right to sue for past, present and future infringements of any
thereof, all rights corresponding thereto throughout the world, all extensions
and renewals of any thereof and all proceeds of the foregoing, including
licenses, royalties, income, payments, claims, damages and proceeds of suit.
SECTION 3. Security Agreement. This Agreement has been executed and
delivered by the Grantor for the purpose of registering the security interest of
the Administrative Agent in the Copyright Collateral with the United States
Copyright Office and corresponding offices in other countries of the world. The
security interest granted hereby has been granted as a supplement to, and not in
limitation of, the security interest granted to the Administrative Agent for its
benefit and the benefit of each Secured Party under the Security Agreement. The
Security Agreement (and all rights and remedies of the Administrative Agent and
each Secured Party thereunder) shall remain in full force and effect in
accordance with its terms.
-47-
<PAGE>
SECTION 4. Release of Security Interest. Upon payment in full in cash of
all Secured Obligations, the termination or expiry of all Letters of Credit, the
termination of all Rate Protection Agreements and the termination of all
Commitments, the Administrative Agent shall, at the Grantor's expense, execute
and deliver to the Grantor all instruments and other documents as may be
necessary or proper to release the lien on and security interest in the
Copyright Collateral which has been granted hereunder.
SECTION 5. Acknowledgment. The Grantor does hereby further acknowledge and
affirm that the rights and remedies of the Administrative Agent with respect to
the security interest in the Copyright Collateral granted hereby are more fully
set forth in the Security Agreement, the terms and provisions of which
(including the remedies provided for therein) are incorporated by reference
herein as if fully set forth herein.
SECTION 6. Loan Document, etc. This Agreement is a Loan Document executed
pursuant to the Credit Agreement and shall (unless otherwise expressly indicated
herein) be construed, administered and applied in accordance with the terms and
provisions of the Credit Agreement.
SECTION 7. Counterparts. This Agreement may be executed by the parties
hereto in several counterparts, each of which shall be deemed to be an original
and all of which shall constitute together but one and the same agreement.
-48-
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their respective officers thereunto duly
authorized as of the day and year first above written.
[NAME OF GRANTOR]
By
Name:
Title:
FLEET NATIONAL BANK,
as Administrative Agent
By
Name:
Title:
-49-
<PAGE>
ATTACHMENT 1
to Subsidiary Copyright
Security Agreement
Item A. Copyrights/Mask Works
---------------------
Registered Copyrights/Mask Works
--------------------------------
*Country Registration No. Registration Date Author(s) Title
------- ---------------- ----------------- --------- -----
Copyright/Mask Work Pending Registration Applications
-----------------------------------------------------
*Country Serial No. Filing Date Author(s) Title
------- ---------- ----------- --------- -----
Copyright/Mask Work Registration Applications in Preparation
------------------------------------------------------------
Expected
*Country Docket No. Filing Date Author(s) Title
------- ---------- ----------- --------- -----
- --------
* List items related to the United States first for ease of recordation.
List items related to other countries next, grouped by country and in
alphabetical order by country name.
<PAGE>
Item B. Copyright/Mask Work Licenses
----------------------------
*Country or Effective Expiration Subject
Territory Licensor Licensee Date Date Matter
--------- -------- -------- --------- ---------- ------
<PAGE>
ANNEX I
to Subsidiary Security Agreement
SUPPLEMENT TO SUBSIDIARY SECURITY AGREEMENT
This SUPPLEMENT NO. ___, dated as of ________ __, ____ (this
"Supplement"), to the Subsidiary Security Agreement, dated as of ________ __,
____ (as amended, supplemented, amended and restated or otherwise modified from
time to time, the "Security Agreement"), among the initial signatories thereto
and each other Person which from time to time thereafter became a party thereto
pursuant to Section 7.4 thereof (each, individually, a "Grantor", and,
collectively, the "Grantors"), in favor of FLEET NATIONAL BANK, as
administrative agent (together with any successor(s) thereto in such capacity,
the "Administrative Agent") for each of the Secured Parties (such and other
capitalized terms being used herein with the meanings provided, or incorporated
by reference, in the Security Agreement), is made by the undersigned.
W I T N E S S E T H:
WHEREAS, pursuant to a Second Amended and Restated Credit Agreement, dated
as of March 17, 1999, amending and restating in its entirety that certain
Amended and Restated Credit Agreement, dated as of September 11, 1998 (as
amended prior to the Amendment Effective Date) (as so amended and restated, and
together with all amendments, supplements, restatements and other modifications,
if any, from time to time thereafter made thereto, the "Credit Agreement"),
among Duane Reade, a New York general partnership (the "Borrower"), each of the
Parent Guarantors named therein, the various financial institutions as are, or
may from time to time become, parties thereto (each, individually, a "Lender",
and collectively, the "Lenders"), DLJ Capital Funding, Inc., as Syndication
Agent, Fleet National Bank, as the Administrative Agent and Credit Lyonnais New
York Branch, as the Documentation Agent, the Lenders and the Issuer have
extended Commitments to make Credit Extensions to the Borrower;
WHEREAS, as a condition precedent to the making and maintenance of the
Credit Extensions under the Credit Agreement, the undersigned is required to
execute and deliver this Supplement;
WHEREAS, the undersigned has duly authorized the execution, delivery and
performance of this Supplement and the Security Agreement;
WHEREAS, the Security Agreement provides that additional parties may
become Grantors under the Security Agreement by execution and delivery of an
<PAGE>
instrument in the form of this Supplement;
WHEREAS, pursuant to the provisions of Section 7.4 of the Security
Agreement, the undersigned is becoming an Additional Grantor under the Security
Agreement;
WHEREAS, the undersigned is a Subsidiary of the Borrower; and
WHEREAS, the undersigned desires to become a Grantor under the Security
Agreement in order to induce the Secured Parties to continue to make and
maintain Credit Extensions under the Credit Agreement as consideration therefor;
NOW, THEREFORE, the undersigned agrees, for the benefit of each Secured
Party, as follows:
SECTION 1. In accordance with the Security Agreement, the undersigned by
its signature below becomes a Grantor under the Security Agreement with the same
force and effect as if it were an original signatory thereto as a Grantor and
the undersigned hereby
(a) agrees to all the terms and provisions of the Security Agreement
applicable to it as a Grantor thereunder;
(b) assigns and pledges to the Administrative Agent for its benefit
and the ratable benefit of each of the Secured Parties, and grants to the
Administrative Agent for its benefit and the ratable benefit of each of
the Secured Parties, a security interest in all of the following, whether
now or hereafter existing or acquired by the undersigned (its
"Collateral"):
(i) all equipment in all of its forms of the undersigned,
wherever located, including all parts thereof and all accessions,
additions, attachments, improvements, substitutions and replacements
thereto and therefor and all accessories related thereto (any and
all of the foregoing being the "Equipment");
(ii) all inventory in all of its forms of the undersigned,
wherever located, including
(A) all raw materials and work in process therefor,
finished goods thereof, and materials used or consumed in the
manufacture or production thereof,
(B) all goods in which the undersigned has an interest
in mass or a joint or other interest or right of any kind
(including goods in which the undersigned has an interest or
right as consignee), and
<PAGE>
(C) all goods which are returned to or repossessed by
the undersigned,
and all accessions thereto, products thereof and documents therefor
(any and all such inventory, materials, goods, accessions, products
and documents being the "Inventory");
(iii) all accounts, contracts, contract rights, chattel paper,
documents, instruments, and general intangibles (including tax
refunds) of the undersigned, whether or not arising out of or in
connection with the sale or lease of goods or the rendering of
services, and all rights of the undersigned now or hereafter
existing in and to all security agreements, guaranties, leases and
other contracts securing or otherwise relating to any such accounts,
contracts, contract rights, chattel paper, documents, instruments,
and general intangibles (any and all such accounts, contracts,
contract rights, chattel paper, documents, instruments, and general
intangibles being the "Receivables" (provided, however, that
Receivables shall not include Prescription Receivables sold to
Pharmacy Fund pursuant to the Rapid Remit Program), and any and all
such security agreements, guaranties, leases and other contracts
being the "Related Contracts") (provided, however, that Related
Contracts shall not include the Rapid Remit Program Documents);
(iv) all Intellectual Property Collateral of the undersigned;
(v) all books, records, writings, data bases, information and
other property relating to, used or useful in connection with,
evidencing, embodying, incorporating or referring to, any of the
foregoing in this clause (b);
(vi) all of the undersigned's other property and rights of
every kind and description and interests therein; and
(vii) all products, offspring, rents, issues, profits,
returns, income and proceeds of and from any and all of the
foregoing Collateral (including proceeds which constitute property
of the types described in clauses (a), (b), (c), (d), (e) and (f),
proceeds deposited from time to time in the Collateral Account and
in any lock boxes of the undersigned, and, to the extent not
otherwise included, all payments under insurance (whether or not the
Administrative Agent is the loss payee thereof), or any indemnity,
warranty or guaranty, payable by reason of loss or damage to or
otherwise with respect to any of the foregoing Collateral);
provided, however, that "Collateral" shall not include any general
intangibles or
<PAGE>
other rights arising under any contracts, instruments, licenses or other
documents as to which the grant of a security interest would constitute a
violation of a valid and enforceable restriction in favor of a third party
on such grant, unless and until any required consents shall have been
obtained and the undersigned agrees to use its commercially reasonable
best efforts to obtain any such required consent;
(c) agrees that each of the Schedules attached hereto shall be
deemed to be a Schedule thereto; and
(d) represents and warrants that the representations and warranties
made by it as a Grantor thereunder are true and correct on and as of the
date hereof.
In furtherance of the foregoing, each reference to a "Grantor" or "Additional
Grantor" in the Security Agreement shall be deemed to include the undersigned.
SECTION 2. The undersigned hereby represents and warrants that this
Supplement has been duly authorized, executed and delivered by the undersigned
and constitutes a legal, valid and binding obligation of the undersigned,
enforceable against it in accordance with its terms.
SECTION 3. Except as expressly supplemented hereby, the Security Agreement
shall remain in full force and effect in accordance with its terms.
SECTION 4. In the event any one or more of the provisions contained in
this Supplement should be held invalid, illegal or unenforceable in any respect,
the validity, legality and enforceability of the remaining provisions contained
herein and in the Security Agreement shall not in any way be affected or
impaired.
SECTION 5. Without limiting the provisions of the Credit Agreement (or any
other Loan Document, including the Security Agreement), the undersigned agrees
to reimburse the Administrative Agent for its reasonable out-of-pocket expenses
in connection with this Supplement, including reasonable attorneys' fees and
expenses of the Administrative Agent.
SECTION 6. THIS SUPPLEMENT SHALL BE DEEMED TO BE A CONTRACT MADE UNDER AND
GOVERNED BY THE LAWS OF THE STATE OF NEW YORK. THIS SUPPLEMENT, THE SECURITY
AGREEMENT AND THE OTHER LOAN DOCUMENTS CONSTITUTE THE ENTIRE UNDERSTANDING AMONG
THE PARTIES HERETO WITH RESPECT TO THE SUBJECT MATTER HEREOF AND THEREOF AND
SUPERSEDE ANY PRIOR AGREEMENTS, WRITTEN OR ORAL, WITH RESPECT THERETO.
SECTION 7. This Supplement hereby incorporates by reference the provisions
<PAGE>
of the Security Agreement, which provisions are deemed to be a part hereof, and
this Supplement shall be deemed to be a part of the Security Agreement.
SECTION 8. This Supplement may be executed by the parties hereto in
several counterparts, each of which shall be deemed to be an original and all of
which shall constitute together but one and the same agreement.
<PAGE>
IN WITNESS WHEREOF, the undersigned has caused this Supplement to be duly
executed and delivered by its officer thereunto duly authorized as of the date
first above written.
[NAME OF ADDITIONAL GRANTOR]
By:
Name:
Title:
ACKNOWLEDGED AND ACCEPTED BY:
FLEET NATIONAL BANK, as
Administrative Agent
By:
Name:
Title:
<PAGE>
SCHEDULE I
to Supplement No. __
to Subsidiary Security Agreement
([NAME OF ADDITIONAL GRANTOR])
Item A. Location of Equipment
---------------------
Description Location
----------- --------
1.
2.
3.
Item B. Location of Inventory
---------------------
Description Location
----------- --------
1.
2.
3.
Item C. Location of Lock Boxes
----------------------
Contact
Bank Name and Address Account Number Person
--------------------- -------------- ------
1.
2.
3.
Item D. Place(s) of Business and Chief Executive Office
-----------------------------------------------
Item E. Trade Names
-----------
<PAGE>
Item F. Merger or Other Corporate Reorganization
----------------------------------------
Item G. Government Contracts
--------------------
<PAGE>
SCHEDULE II
to Supplement No. __
to Subsidiary Security Agreement
([NAME OF ADDITIONAL GRANTOR])
Item A. Patents
Issued Patents
--------------
*Country Patent No. Issue Date Inventor(s) Title
------- ---------- ---------- ----------- -----
Pending Patent Applications
---------------------------
*Country Serial No. Filing Date Inventor(s) Title
------- ---------- ----------- ----------- -----
Patent Applications in Preparation
----------------------------------
Expected
*Country Docket No. Filing Date Inventor(s) Title
------- ---------- ----------- ----------- -----
Item B. Patent Licenses
---------------
*Country or Effective Expiration Subject
Territory Licensor Licensee Date Date Matter
--------- -------- -------- --------- ---------- ------
- --------
* List items related to the United States first for ease of recordation.
List items related to other countries next, grouped by country and in
alphabetical order by country name.
<PAGE>
SCHEDULE III
to Supplement No. __
to Subsidiary Security Agreement
([NAME OF ADDITIONAL GRANTOR])
Item A. Trademarks
----------
Registered Trademarks
---------------------
*Country Trademark Registration No. Registration Date
------- --------- ---------------- -----------------
Pending Trademark Applications
------------------------------
*Country Trademark Serial No. Filing Date
------- --------- ---------- -----------
Trademark Applications in Preparation
-------------------------------------
Expected Products/
*Country Trademark Docket No. Filing Date Services
------- --------- ---------- ----------- --------
- --------
* List items related to the United States first for ease of recordation.
List items related to other countries next, grouped by country and in
alphabetical order by country name.
<PAGE>
Item B. Trademark Licenses
------------------
*Country or Effective Expiration
Territory Trademark Licensor Licensee Date Date
--------- --------- -------- -------- --------- ----------
<PAGE>
SCHEDULE IV
to Supplement No. __
to Subsidiary Security Agreement
([NAME OF ADDITIONAL GRANTOR])
Item A. Copyrights/Mask Works
---------------------
Registered Copyrights/Mask Works
--------------------------------
*Country Registration No. Registration Date Author(s) Title
------- ---------------- ----------------- --------- -----
Copyright/Mask Work Pending Registration Applications
-----------------------------------------------------
*Country Serial No. Filing Date Author(s) Title
------- ---------- ----------- --------- -----
Copyright/Mask Work Registration Applications in Preparation
------------------------------------------------------------
Expected
*Country Docket No. Filing Date Author(s) Title
------- ---------- ----------- --------- -----
- --------
* List items related to the United States first for ease of recordation.
List items related to other countries next, grouped by country and in
alphabetical order by country name.
<PAGE>
Item B. Copyright/Mask Work Licenses
----------------------------
*Country or Effective Expiration Subject
Territory Licensor Licensee Date Date Matter
--------- -------- -------- ---- ---- ------
<PAGE>
SCHEDULE V
to Supplement No. __
to Subsidiary Security Agreement
([NAME OF ADDITIONAL GRANTOR])
Trade Secret or Know-How Licenses
---------------------------------
*Country or Effective Expiration Subject
Territory Licensor Licensee Date Date Matter
--------- -------- -------- ---- ---- ------
- --------
* List items related to the United States first for ease of recordation.
List items related to other countries next, grouped by country and in
alphabetical order by country name.
<PAGE>
EXHIBIT G-1
[CONFORMED COPY]
AMENDED AND RESTATED HOLDINGS PLEDGE AGREEMENT
This AMENDED AND RESTATED HOLDINGS PLEDGE AGREEMENT (as amended,
supplemented, amended and restated or otherwise modified from time to time, this
"Pledge Agreement"), dated as of September 11, 1998 (amending and restating the
Holdings Pledge Agreement, dated as of February 13, 1998 (the "Existing Pledge
Agreement")), is made by DUANE READE INC., a Delaware corporation (the
"Pledgor"), in favor of FLEET NATIONAL BANK, as administrative agent (together
with its successor(s) thereto, in such capacity the "Administrative Agent") for
each of the Secured Parties.
W I T N E S S E T H:
WHEREAS, pursuant to that certain Amended and Restated Credit Agreement,
dated as of September 11, 1998, amending and restating in its entirety that
certain Credit Agreement, dated as of February 13, 1998 (as amended prior to the
Amendment Effective Date, the "Existing Credit Agreement") (as so amended and
restated or otherwise modified, and together with all amendments, supplements,
restatements and other modifications, if any, thereafter made thereto, the
"Credit Agreement"), among Duane Reade, a New York general partnership (the
"Borrower"), each of the Parent Guarantors named therein (including the
Pledgor), the various financial institutions as are, or may from time to time
become, parties thereto (each, individually, a "Lender", and collectively, the
"Lenders"), DLJ Capital Funding, Inc., as the Syndication Agent, Fleet National
Bank, as the Administrative Agent and Credit Lyonnais New York Branch, as the
Documentation Agent, the Lenders and the Issuer have extended Commitments to
make Credit Extensions to the Borrower;
WHEREAS, as a condition precedent to the making and maintaining of the
Credit Extensions under the Credit Agreement, the Pledgor was required to
execute and deliver the Existing Pledge Agreement;
WHEREAS, the Pledgor has requested that the Existing Pledge Agreement be
amended and restated in its entirety to read as hereinafter set forth; and
WHEREAS, it is in the best interests of the Pledgor to execute this Pledge
Agreement inasmuch as the Pledgor will derive substantial direct and indirect
benefits from the Credit Extensions made from time to time to the Borrower by
the Lenders and the Issuer pursuant to the Credit Agreement;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency
<PAGE>
of which are hereby acknowledged, and in order to induce the Lenders and the
Issuer to make and maintain Credit Extensions to the Borrower pursuant to the
Credit Agreement, and to induce Secured Parties to enter into Rate Protection
Agreement(s), the Pledgor agrees, for the benefit of each Secured Party, as
follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. Certain Terms. The following terms (whether or not
underscored) when used in this Pledge Agreement, including its preamble and
recitals, shall have the following meanings (such definitions to be equally
applicable to the singular and plural forms thereof):
"Administrative Agent" is defined in the preamble.
"Borrower" is defined in the first recital.
"Collateral" is defined in Section 2.1.
"Credit Agreement" is defined in the first recital.
"Distributions" means all stock dividends, liquidating dividends, shares
of stock resulting from (or in connection with the exercise of) stock splits,
reclassifications, warrants, options, non-cash dividends, mergers,
consolidations, and all other distributions (whether similar or dissimilar to
the foregoing) on or with respect to any Pledged Shares or other shares of
capital stock constituting Collateral, but shall not include Dividends.
"Dividends" means cash dividends and cash distributions with respect to
any Pledged Shares or other Pledged Property made in the ordinary course of
business and not a liquidating dividend.
"Lender" and "Lenders" are defined in the first recital.
"Pledge Agreement" is defined in the preamble.
"Pledged Note Issuer" means each Person identified in Item A of Attachment
1 hereto as the issuer of the Pledged Note identified opposite the name of such
Person.
"Pledged Notes" means all promissory notes of any Pledged Note Issuer in
substantially the form of Exhibit A hereto which are delivered by the Pledgor to
the
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Administrative Agent as Pledged Property hereunder, as such promissory notes, in
accordance with Section 4.6, are amended, modified or supplemented from time to
time, together with any promissory note of any Pledged Note Issuer taken in
extension or renewal thereof or substitution therefor.
"Pledged Property" means all Pledged Shares, all Pledged Notes, and all
other pledged shares of capital stock or promissory notes, all other securities,
all assignments of any amounts due or to become due, all other instruments which
are now being delivered by the Pledgor to the Administrative Agent or may from
time to time hereafter be delivered by the Pledgor to the Administrative Agent
for the purpose of pledge under this Pledge Agreement or any other Loan
Document, and all proceeds of any of the foregoing.
"Pledged Share Issuer" means each Person identified in Item B of
Attachment 1 hereto as the issuer of the Pledged Shares identified opposite the
name of such Person.
"Pledged Shares" means all shares of capital stock of any Pledged Share
Issuer which are delivered by the Pledgor to the Administrative Agent as Pledged
Property hereunder.
"Pledgor" is defined in the preamble.
"Secured Obligations" is defined in Section 2.2.
"Securities Act" is defined in Section 6.2.
"U.C.C." means the Uniform Commercial Code, as in effect from time to time
in the State of New York.
SECTION 1.2. Credit Agreement Definitions. Unless otherwise defined herein
or the context otherwise requires, terms used in this Pledge Agreement,
including its preamble and recitals, have the meanings provided in the Credit
Agreement.
SECTION 1.3. U.C.C. Definitions. Unless otherwise defined herein or in the
Credit Agreement or the context otherwise requires, terms for which meanings are
provided in the U.C.C. are used in this Pledge Agreement, including its preamble
and recitals, with such meanings.
ARTICLE II
PLEDGE
SECTION 2.1. Grant of Security Interest. The Pledgor hereby (x) confirms
the pledge, hypothecation, assignment, charge, mortgage, delivery, and transfer
to the
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<PAGE>
Administrative Agent, for its benefit and the ratable benefit of each of the
Secured Parties pursuant to the Existing Pledge Agreement and (y) not in
limitation of such pledge, hypothecation, assignment, charge, mortgage,
delivery, and transfer but as a supplement thereto, and hereby grants to the
Administrative Agent, for its benefit and the ratable benefit of the Secured
Parties, a continuing security interest in, all of the following property of the
Pledgor (the "Collateral"):
(a) all promissory notes of each Pledged Note Issuer identified in
Item A of Attachment 1 hereto;
(b) all other Pledged Notes issued from time to time;
(c) all issued and outstanding shares of capital stock of each
Pledged Share Issuer identified in Item B of Attachment 1 hereto;
(d) all other Pledged Shares issued from time to time;
(e) all other Pledged Property, whether now or hereafter delivered
to the Administrative Agent in connection with this Pledge Agreement;
(f) all Dividends, Distributions, interest, and other payments and
rights with respect to any Pledged Property; and
(g) all proceeds of any of the foregoing.
SECTION 2.2. Security for Obligations. This Pledge Agreement secures the
payment in full in cash of all Obligations of the Borrower now or hereafter
existing under the Credit Agreement, the Notes and each other Loan Document to
which the Borrower is or may become a party, whether for principal, interest,
costs, fees, expenses, or otherwise, and all obligations of the Pledgor and each
other Obligor whether now or hereafter existing under this Pledge Agreement and
each other Loan Document to which the Pledgor or such other Obligor is or may
become a party (all such obligations of the Borrower, the Pledgor and such other
Obligor being the "Secured Obligations").
SECTION 2.3. Delivery of Pledged Property. All certificates or instruments
representing or evidencing any Collateral, including all Pledged Shares and all
Pledged Notes, shall be delivered to and held by or on behalf of (and, in the
case of the Pledged Notes, endorsed to the order of) the Administrative Agent
pursuant hereto, shall be in suitable form for transfer by delivery, and shall
be accompanied by all necessary instruments of transfer or assignment, duly
executed in blank.
SECTION 2.4. Dividends on Pledged Shares and Payments on Pledged Notes. In
the event that any Dividend is to be paid on any Pledged Share or any payment of
principal or
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<PAGE>
interest is to be made on any Pledged Note at a time when no Default of the
nature referred to in Section 8.1.9 of the Credit Agreement or Event of Default
has occurred and is continuing or would result therefrom, such Dividend or
payment may be paid directly to the Pledgor. If any such Default or Event of
Default has occurred and is continuing, then any such Dividend or payment shall
be paid directly to the Administrative Agent.
SECTION 2.5. Continuing Security Interest; Transfer of Note. This Pledge
Agreement shall create a continuing security interest in the Collateral and
shall
(a) remain in full force and effect until payment in full in cash of
all Secured Obligations, the termination or expiration of all Letters of
Credit, the termination of all Rate Protection Agreements and the
termination of all Commitments,
(b) be binding upon the Pledgor and its successors, transferees and
assigns, and
(c) inure, together with the rights and remedies of the
Administrative Agent hereunder, to the benefit of the Administrative Agent
and each other Secured Party.
Without limiting the foregoing clause (c), any Lender may assign or otherwise
transfer (in whole or in part) any Note or Loan held by it to any other Person
or entity, and such other Person or entity shall thereupon become vested with
all the rights and benefits in respect thereof granted to such Lender under any
Loan Document (including this Pledge Agreement) or otherwise, subject, however,
to any contrary provisions in such assignment or transfer, and to the provisions
of Section 11.11 and Article X of the Credit Agreement. Upon (i) the sale,
transfer or other disposition of Collateral in accordance with the Credit
Agreement or (ii) the payment in full in cash of all Secured Obligations, the
termination or expiration of all Letters of Credit, the termination of all Rate
Protection Agreements and the termination of all Commitments, the security
interests granted herein shall automatically terminate with respect to (x) such
Collateral (in the case of clause (i)) or (y) all Collateral (in the case of
clause (ii)). Upon any such sale, transfer, disposition or termination, the
Administrative Agent will, at the Pledgor's sole expense, deliver to the
Pledgor, without any representations, warranties or recourse of any kind
whatsoever, all certificates and instruments representing or evidencing all
Pledged Shares and all Pledged Notes, together with all other Collateral held by
the Administrative Agent hereunder, and execute and deliver to the Pledgor such
documents as the Pledgor shall reasonably request to evidence such termination.
SECTION 2.6. Security Interest Absolute. All rights of the Administrative
Agent and the security interests granted to the Administrative Agent hereunder,
and all obligations of the Pledgor hereunder, shall be absolute and
unconditional, irrespective of
(a) any lack of validity or enforceability of the Credit Agreement,
any Note or any other Loan Document,
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<PAGE>
(b) the failure of any Secured Party or any holder of any Note
(i) to assert any claim or demand or to enforce any right or
remedy against the Borrower, any other Obligor or any other Person
under the provisions of the Credit Agreement, any Note, any other
Loan Document or otherwise, or
(ii) to exercise any right or remedy against any other
guarantor of, or collateral securing, any Secured Obligations,
(c) any change in the time, manner or place of payment of, or in any
other term of, all or any of the Secured Obligations or any other
extension, compromise or renewal of any Secured Obligation,
(d) any reduction, limitation, impairment or termination of any
Secured Obligations for any reason, including any claim of waiver,
release, surrender, alteration or compromise, and shall not be subject to
(and the Pledgor hereby waives any right to or claim of) any defense or
setoff, counterclaim, recoupment or termination whatsoever by reason of
the invalidity, illegality, nongenuineness, irregularity, compromise,
unenforceability of, or any other event or occurrence affecting, any
Secured Obligations or otherwise,
(e) any amendment to, rescission, waiver, or other modification of,
or any consent to departure from, any of the terms of the Credit
Agreement, any Note or any other Loan Document,
(f) any addition, exchange, release, surrender or non-perfection of
any collateral (including the Collateral), or any amendment to or waiver
or release of or addition to or consent to departure from any guaranty,
for any of the Secured Obligations, or
(g) any other circumstances which might otherwise constitute a
defense available to, or a legal or equitable discharge of, the Borrower,
any other Obligor, any surety or any guarantor.
SECTION 2.7. Postponement of Subrogation, etc. The Pledgor will not
exercise any rights which it may acquire by reason of any payment made
hereunder, whether by way of subrogation, reimbursement or otherwise, until the
prior payment, in full and in cash, of all Secured Obligations, the termination
or expiration of all Letters of Credit, the termination of all Rate Protection
Agreements and the termination of all Commitments. Any amount paid to the
Pledgor on account of any payment made hereunder prior to the payment in full in
cash of all Secured Obligations shall be held in trust for the benefit of the
Secured Parties and each holder of a Note and shall immediately be paid to the
Secured Parties and each holder of a
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<PAGE>
Note and credited and applied against the Secured Obligations, whether matured
or unmatured, in accordance with the terms of the Credit Agreement; provided,
however, that if
(a) the Pledgor has made payment to the Secured Parties and each
holder of a Note of all or any part of the Secured Obligations, and
(b) all Secured Obligations have been paid in full in cash, all
Letters of Credit have been terminated or expired, all Rate Protection
Agreements have been terminated and all Commitments have been permanently
terminated,
each Secured Party and each holder of a Note agrees that, at the Pledgor's
request, the Secured Parties and the holders of the Notes will execute and
deliver to the Pledgor appropriate documents (without recourse and without
representation or warranty) necessary to evidence the transfer by subrogation to
the Pledgor of an interest in the Secured Obligations resulting from such
payment by the Pledgor. In furtherance of the foregoing, for so long as any
Secured Obligations, Letters of Credit or Commitments remain outstanding or any
Rate Protection Agreement remains in full force and effect, the Pledgor shall
refrain from taking any action or commencing any proceeding against the Borrower
or any other Obligor (or its successors or assigns, whether in connection with a
bankruptcy proceeding or otherwise) to recover any amounts in respect of
payments made under this Pledge Agreement to any Secured Party or any holder of
a Note.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.1. Representations and Warranties, etc. The Pledgor represents
and warrants to each Secured Party, as at the date of each pledge and delivery
hereunder (including each pledge and delivery of Pledged Shares and each pledge
and delivery of a Pledged Note) by the Pledgor to the Administrative Agent of
any Collateral, as set forth in this Article III.
SECTION 3.2. Ownership, No Liens, etc. The Pledgor is the legal and
beneficial owner of, and has good and marketable title to (and has full right
and authority to pledge and assign) such Collateral, free and clear of all
liens, security interests, options, or other charges or encumbrances, except any
lien or security interest granted pursuant hereto in favor of the Administrative
Agent.
SECTION 3.3. Valid Security Interest. The delivery of such Collateral to
the Administrative Agent is effective to create a valid, perfected, first
priority security interest in such Collateral and all proceeds thereof, securing
the Secured Obligations. No filing or other action will be necessary to perfect
or protect such security interest.
SECTION 3.4. As to Pledged Shares. In the case of any Pledged Shares
constituting
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<PAGE>
such Collateral, all of such Pledged Shares are duly authorized and validly
issued, fully paid, and non-assessable, and constitute all of the issued and
outstanding shares of capital stock of each Pledged Share Issuer. The Pledgor
has no Subsidiaries other than the Pledged Share Issuers, except as set forth in
Item C of Attachment 1.
SECTION 3.5. As to Pledged Notes. In the case of each Pledged Note, all of
such Pledged Notes have been duly authorized, executed, endorsed, issued and
delivered, and are the legal, valid and binding obligation of the issuers
thereof, and are not in default.
SECTION 3.6. Authorization, Approval, etc. No authorization, approval, or
other action by, and no notice to or filing with, any governmental authority,
regulatory body or any other Person is required either
(a) for the pledge by the Pledgor of any Collateral pursuant to this
Pledge Agreement or for the execution, delivery, and performance of this
Pledge Agreement by the Pledgor, or
(b) for the exercise by the Administrative Agent of the voting or
other rights provided for in this Pledge Agreement, or, except with
respect to any Pledged Shares, as may be required in connection with a
disposition of such Pledged Shares by laws affecting the offering and sale
of securities generally, the remedies in respect of the Collateral
pursuant to this Pledge Agreement.
SECTION 3.7. Compliance with Laws. The Pledgor is in compliance with the
requirements of all applicable laws (including the provisions of the Fair Labor
Standards Act), rules, regulations and orders of every governmental authority,
the non-compliance with which could reasonably be expected to have a Material
Adverse Effect or which could reasonably be expected to materially adversely
affect the value of the Collateral or the worth of the Collateral as collateral
security.
ARTICLE IV
COVENANTS
SECTION 4.1. Certain Covenants. The Pledgor covenants and agrees that, so
long as any portion of the Secured Obligations shall remain unpaid, any Letters
of Credit shall be outstanding, any Rate Protection Agreement shall remain in
full force and effect or any Secured Party shall have any outstanding
Commitment, the Pledgor will, unless the Required Lenders shall otherwise
consent in writing, perform, comply with and be bound by the obligations set
forth in this Article IV.
SECTION 4.2. Protect Collateral; Further Assurances, etc. The Pledgor
agrees and
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<PAGE>
covenants that it will not sell, assign, transfer, pledge, or encumber in any
other manner the Collateral (except in favor of the Administrative Agent
hereunder). The Pledgor will warrant and defend the right and title herein
granted unto the Administrative Agent in and to the Collateral (and all right,
title, and interest represented by the Collateral) against the claims and
demands of all Persons whomsoever. The Pledgor agrees that at any time, and from
time to time, at the expense of the Pledgor, the Pledgor will promptly execute
and deliver all further instruments, and take all further action, that may be
necessary or desirable, or that the Administrative Agent may reasonably request,
in order to perfect and protect any security interest granted or purported to be
granted hereby or to enable the Administrative Agent to exercise and enforce its
rights and remedies hereunder with respect to any Collateral.
SECTION 4.3. Stock Powers, etc. The Pledgor agrees that all Pledged Shares
(and all other shares of capital stock constituting Collateral) delivered by the
Pledgor pursuant to this Pledge Agreement will be accompanied by duly executed
undated blank stock powers, or other equivalent instruments of transfer
acceptable to the Administrative Agent. The Pledgor will, from time to time upon
the request of the Administrative Agent, promptly deliver to the Administrative
Agent such stock powers, instruments, and similar documents, satisfactory in
form and substance to the Administrative Agent, with respect to the Collateral
as the Administrative Agent may reasonably request and will, from time to time
upon the request of the Administrative Agent after the occurrence of any Event
of Default, promptly transfer any Pledged Shares or other shares of common stock
constituting Collateral into the name of any nominee designated by the
Administrative Agent.
SECTION 4.4. Continuous Pledge. The Pledgor will, at all times, keep
pledged to the Administrative Agent pursuant hereto all Pledged Shares and all
other shares of capital stock constituting Collateral, all Dividends and
Distributions with respect thereto, all Pledged Notes, all interest, principal
and other proceeds received by the Administrative Agent with respect to the
Pledged Notes, and all other Collateral and other securities, instruments,
proceeds, and rights from time to time received by or distributable to the
Pledgor in respect of any Collateral and will not permit any Pledged Share
Issuer to issue any capital stock which shall not have been immediately duly
pledged hereunder on a first priority perfected basis.
SECTION 4.5. Voting Rights; Dividends, etc. The Pledgor agrees:
(a) after any Default of the nature referred to in Section 8.1.9 of
the Credit Agreement or any Event of Default shall have occurred and be
continuing, promptly upon receipt of notice thereof by the Pledgor and
without any request therefor by the Administrative Agent, to deliver
(properly endorsed where required hereby or requested by the
Administrative Agent) to the Administrative Agent all Dividends,
Distributions, all interest, all principal, all other cash payments, and
all proceeds of the Collateral, all of which shall be held by the
Administrative Agent as additional Collateral for use in accordance with
Section 6.4; and
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<PAGE>
(b) after any Event of Default shall have occurred and be continuing
and the Administrative Agent has notified the Pledgor of the
Administrative Agent's intention to exercise its voting power under this
Section 4.5(b)
(i) the Administrative Agent may exercise (to the exclusion of
the Pledgor) the voting power and all other incidental rights of
ownership with respect to any Pledged Shares or other shares of
capital stock constituting Collateral and the Pledgor hereby grants
the Administrative Agent an irrevocable proxy, exercisable under
such circumstances, to vote the Pledged Shares and such other
Collateral; and
(ii) promptly to deliver to the Administrative Agent such
additional proxies and other documents as may be necessary to allow
the Administrative Agent to exercise such voting power.
All Dividends, Distributions, interest, principal, cash payments, and proceeds
which may at any time and from time to time be held by the Pledgor but which the
Pledgor is then obligated to deliver to the Administrative Agent, shall, until
delivery to the Administrative Agent, be held by the Pledgor separate and apart
from its other property in trust for the Administrative Agent. The
Administrative Agent agrees that unless an Event of Default shall have occurred
and be continuing and the Administrative Agent shall have given the notice
referred to in Section 4.5(b), the Pledgor shall have the exclusive voting power
with respect to any shares of capital stock (including any of the Pledged
Shares) constituting Collateral and the Administrative Agent shall, upon the
written request of the Pledgor, promptly deliver such proxies and other
documents, if any, as shall be reasonably requested by the Pledgor which are
necessary to allow the Pledgor to exercise voting power with respect to any such
share of capital stock (including any of the Pledged Shares) constituting
Collateral; provided, however, that no vote shall be cast, or consent, waiver,
or ratification given, or action taken by the Pledgor that would impair any
Collateral or be inconsistent with or violate any provision of the Credit
Agreement or any other Loan Document (including this Pledge Agreement).
SECTION 4.6. Additional Undertakings. The Pledgor will not, without the
prior written consent of the Administrative Agent:
(a) enter into any agreement amending, supplementing, or waiving any
provision of any Pledged Note (including any underlying instrument
pursuant to which such Pledged Note is issued) or compromising or
releasing or extending the time for payment of any obligation of the maker
thereof; or
(b) take or omit to take any action the taking or the omission of
which would result in any impairment or alteration of any obligation of
the maker of any Pledged Note or other instrument constituting Collateral.
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<PAGE>
ARTICLE V
THE ADMINISTRATIVE AGENT
SECTION 5.1. Administrative Agent Appointed Attorney-in-Fact. The Pledgor
hereby irrevocably appoints the Administrative Agent the Pledgor's
attorney-in-fact, with full authority in the place and stead of the Pledgor and
in the name of the Pledgor or otherwise, from time to time in the Administrative
Agent's discretion, to take any action and to execute any instrument which the
Administrative Agent may deem necessary or advisable to accomplish the purposes
of this Pledge Agreement, including after the occurrence and during the
continuance of a Default of the nature referred to in Section 8.1.9 of the
Credit Agreement or an Event of Default:
(a) to ask, demand, collect, sue for, recover, compromise, receive
and give acquittance and receipts for moneys due and to become due under
or in respect of any of the Collateral;
(b) to receive, endorse, and collect any drafts or other
instruments, documents and chattel paper, in connection with clause (a)
above; and
(c) to file any claims or take any action or institute any
proceedings which the Administrative Agent may deem necessary or desirable
for the collection of any of the Collateral or otherwise to enforce the
rights of the Administrative Agent with respect to any of the Collateral.
The Pledgor hereby acknowledges, consents and agrees that the power of attorney
granted pursuant to this Section is irrevocable and coupled with an interest.
SECTION 5.2. Administrative Agent May Perform. If the Pledgor fails to
perform any agreement contained herein, the Administrative Agent may itself
perform, or cause performance of, such agreement, and the expenses of the
Administrative Agent incurred in connection therewith shall be payable by the
Pledgor pursuant to Section 6.4.
SECTION 5.3. Administrative Agent Has No Duty. The powers conferred on the
Administrative Agent hereunder are solely to protect its interest (on behalf of
the Secured Parties) in the Collateral and shall not impose any duty on it to
exercise any such powers. Except for reasonable care of any Collateral in its
possession and the accounting for moneys actually received by it hereunder, the
Administrative Agent shall have no duty as to any Collateral or responsibility
for
(a) ascertaining or taking action with respect to calls,
conversions, exchanges, maturities, tenders or other matters relative to
any Pledged Property, whether or not the Administrative Agent has or is
deemed to have knowledge of such matters, or
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(b) taking any necessary steps to preserve rights against prior
parties or any other rights pertaining to any Collateral.
SECTION 5.4. Reasonable Care. The Administrative Agent is required to
exercise reasonable care in the custody and preservation of any of the
Collateral in its possession; provided, however, the Administrative Agent shall
be deemed to have exercised reasonable care in the custody and preservation of
any of the Collateral, if it takes such action for that purpose as the Pledgor
reasonably requests in writing at times other than upon the occurrence and
during the continuance of any Event of Default, but failure of the
Administrative Agent to comply with any such request at any time shall not in
itself be deemed a failure to exercise reasonable care.
ARTICLE VI
REMEDIES
SECTION 6.1. Certain Remedies. If any Event of Default shall have occurred
and be continuing:
(a) The Administrative Agent may exercise in respect of the
Collateral, in addition to other rights and remedies provided for herein
or otherwise available to it, all the rights and remedies of a secured
party on default under the U.C.C. (whether or not the U.C.C. applies to
the affected Collateral) and also may, without notice except as specified
below, sell the Collateral or any part thereof in one or more parcels at
public or private sale, at any of the Administrative Agent's offices or
elsewhere, for cash, on credit or for future delivery, and upon such other
terms as the Administrative Agent may deem commercially reasonable. The
Pledgor agrees that, to the extent notice of sale shall be required by
law, at least ten days' prior notice to the Pledgor of the time and place
of any public sale or the time after which any private sale is to be made
shall constitute reasonable notification. The Administrative Agent shall
not be obligated to make any sale of Collateral regardless of notice of
sale having been given. The Administrative Agent may adjourn any public or
private sale from time to time by announcement at the time and place fixed
therefor, and such sale may, without further notice, be made at the time
and place to which it was so adjourned.
(b) The Administrative Agent may
(i) transfer all or any part of the Collateral into the name
of the Administrative Agent or its nominee, with or without
disclosing that such Collateral is subject to the lien and security
interest hereunder,
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<PAGE>
(ii) notify the parties obligated on any of the Collateral to
make payment to the Administrative Agent of any amount due or to
become due thereunder,
(iii) enforce collection of any of the Collateral by suit or
otherwise, and surrender, release or exchange all or any part
thereof, or compromise or extend or renew for any period (whether or
not longer than the original period) any obligations of any nature
of any party with respect thereto,
(iv) endorse any checks, drafts, or other writings in the
Pledgor's name to allow collection of the Collateral,
(v) take control of any proceeds of the Collateral, and
(vi) execute (in the name, place and stead of the Pledgor)
endorsements, assignments, stock powers and other instruments of
conveyance or transfer with respect to all or any of the Collateral.
SECTION 6.2. Securities Laws. If the Administrative Agent shall determine
to exercise its right to sell all or any of the Collateral pursuant to Section
6.1, the Pledgor agrees that, upon request of the Administrative Agent, the
Pledgor will, at its own expense:
(a) execute and deliver, and cause each issuer of the Collateral
contemplated to be sold and the directors and officers thereof to execute
and deliver, all such instruments and documents, and do or cause to be
done all such other acts and things, as may be necessary or, in the
opinion of the Administrative Agent, advisable to register such Collateral
under the provisions of the Securities Act of 1933, as from time to time
amended (the "Securities Act"), and to cause the registration statement
relating thereto to become effective and to remain effective for such
period as prospectuses are required by law to be furnished, and to make
all amendments and supplements thereto and to the related prospectus
which, in the opinion of the Administrative Agent, are necessary or
advisable, all in conformity with the requirements of the Securities Act
and the rules and regulations of the Securities and Exchange Commission
applicable thereto;
(b) use its best efforts to qualify the Collateral under the state
securities or "Blue Sky" laws and to obtain all necessary governmental
approvals for the sale of the Collateral, as requested by the
Administrative Agent;
(c) cause each such issuer to make available to its security
holders, as soon as practicable, an earnings statement that will satisfy
the provisions of Section 11(a) of the Securities Act; and
(d) do or cause to be done all such other acts and things as may be
necessary to
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<PAGE>
make such sale of the Collateral or any part thereof valid and binding and
in compliance with applicable law.
The Pledgor further acknowledges the impossibility of ascertaining the amount of
damages that would be suffered by the Administrative Agent or the Secured
Parties by reason of the failure by the Pledgor to perform any of the covenants
contained in this Section and, consequently, agrees that, if the Pledgor shall
fail to perform any of such covenants, it shall pay, as liquidated damages and
not as a penalty, an amount equal to the value (as determined by the
Administrative Agent) of the Collateral on the date the Administrative Agent
shall demand compliance with this Section.
SECTION 6.3. Compliance with Restrictions. The Pledgor agrees that in any
sale of any of the Collateral whenever an Event of Default shall have occurred
and be continuing, the Administrative Agent is hereby authorized to comply with
any limitation or restriction in connection with such sale as it may be advised
by counsel is necessary in order to avoid any violation of applicable law
(including compliance with such procedures as may restrict the number of
prospective bidders and purchasers, require that such prospective bidders and
purchasers have certain qualifications, and restrict such prospective bidders
and purchasers to persons who will represent and agree that they are purchasing
for their own account for investment and not with a view to the distribution or
resale of such Collateral), or in order to obtain any required approval of the
sale or of the purchaser by any governmental regulatory authority or official,
and the Pledgor further agrees that such compliance shall not result in such
sale being considered or deemed not to have been made in a commercially
reasonable manner, nor shall the Administrative Agent be liable nor accountable
to the Pledgor for any discount allowed by the reason of the fact that such
Collateral is sold in compliance with any such limitation or restriction.
SECTION 6.4. Application of Proceeds. All cash proceeds received by the
Administrative Agent in respect of any sale of, collection from, or other
realization upon, all or any part of the Collateral shall be applied by the
Administrative Agent against, all or any part of the Secured Obligations as
follows:
(a) first, to the payment of any amounts payable to the
Administrative Agent pursuant to Section 11.3 of the Credit Agreement and
Section 6.5;
(b) second, to the equal and ratable payment of Secured Obligations,
in accordance with each Secured Party's Secured Obligations owing to it
under or pursuant to the Credit Agreement or any other Loan Document, or
under or pursuant to any Hedging Obligation included in the Secured
Obligations as to each Secured Party, applied
(i) first to fees and expense reimbursements then due to such
Secured Party,
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<PAGE>
(ii) then to interest due to such Secured Party,
(iii) then to pay or prepay principal of the Loans owing to,
or to reduce the "credit exposure" of, such Secured Party under such
Hedging Obligation, as the case may be, and
(iv) then to pay the remaining outstanding Secured Obligations
and cash collateralize all Letter of Credit Outstandings;
(c) third, without duplication of any amounts paid pursuant to
clause (b) above, to the Indemnified Parties to the extent of any amounts
owing pursuant to Section 11.4 of the Credit Agreement; and
(d) fourth, to be held as additional collateral security until the
payment in full in cash of all of the Secured Obligations, the termination
or expiration of all Letters of Credit, the termination of all Rate
Protection Agreements and the termination of all Commitments, after which
such remaining cash proceeds shall be paid over to the Pledgor or to
whomsoever may be lawfully entitled to receive such surplus.
For purposes of this Pledge Agreement, the "credit exposure" at any time of any
Secured Party with respect to a Hedging Obligation to which such Secured Party
is a party shall be determined at such time in accordance with the customary
methods of calculating credit exposure under similar arrangements by the
counterparty to such arrangements, taking into account potential interest rate
movements and the respective termination provisions and notional principal
amount and term of such Hedging Obligation.
SECTION 6.5. Indemnity and Expenses. The Pledgor hereby indemnifies and
holds harmless the Administrative Agent from and against any and all claims,
losses, and liabilities arising out of or resulting from this Pledge Agreement
(including enforcement of this Pledge Agreement), except claims, losses, or
liabilities resulting from the Administrative Agent's gross negligence or wilful
misconduct. Upon demand, the Pledgor will pay to the Administrative Agent the
amount of any and all reasonable expenses, including the reasonable fees and
disbursements of its counsel and of any experts and agents, which the
Administrative Agent may incur in connection with:
(a) the administration of this Pledge Agreement, the Credit
Agreement and each other Loan Document;
(b) the custody, preservation, use, or operation of, or the sale of,
collection from, or other realization upon, any of the Collateral;
(c) the exercise or enforcement of any of the rights of the
Administrative Agent hereunder; or
-15-
<PAGE>
(d) the failure by the Pledgor to perform or observe any of the
provisions hereof.
ARTICLE VII
MISCELLANEOUS PROVISIONS
SECTION 7.1. Loan Document. This Pledge Agreement is a Loan Document
executed pursuant to the Credit Agreement and shall (unless otherwise expressly
indicated herein) be construed, administered and applied in accordance with the
terms and provisions thereof.
SECTION 7.2. Amendments, etc. No amendment to or waiver of any provision
of this Pledge Agreement nor consent to any departure by the Pledgor herefrom
shall in any event be effective unless the same shall be in writing and signed
by the Administrative Agent (on behalf of the Lenders or the Required Lenders,
as the case may be) and the Pledgor in the case of an amendment, and then such
waiver or consent shall be effective only in the specific instance and for the
specific purpose for which it is given.
SECTION 7.3. Protection of Collateral. The Administrative Agent may from
time to time, at its option, perform any act which the Pledgor agrees hereunder
to perform and which the Pledgor shall fail to perform after being requested in
writing so to perform (it being understood that no such request need be given
after the occurrence and during the continuance of an Event of Default) and the
Administrative Agent may from time to time take any other action which the
Administrative Agent reasonably deems necessary for the maintenance,
preservation or protection of any of the Collateral or of its security interest
therein.
SECTION 7.4. Addresses for Notices. All notices and other communications
provided for hereunder to any party hereto shall be in writing (including
telegraphic communication) and mailed or telecopied or delivered to such party,
addressed to such party at its address specified in the Credit Agreement. All
such notices and other communications, when mailed and properly addressed with
postage prepaid or if properly addressed and sent by pre-paid courier service,
shall be deemed given when received; any such notice or communication, if
transmitted by telecopier, shall be deemed given when transmitted and
electronically confirmed.
SECTION 7.5. Section Captions. Section captions used in this Pledge
Agreement are for convenience of reference only, and shall not affect the
construction of this Pledge Agreement.
SECTION 7.6. Severability. Wherever possible each provision of this Pledge
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<PAGE>
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Pledge Agreement shall be
prohibited by or invalid under such law, such provision shall be ineffective to
the extent of such prohibition or invalidity, without invalidating the remainder
of such provision or the remaining provisions of this Pledge Agreement.
SECTION 7.7. Counterparts. This Pledge Agreement may be executed by the
parties hereto in several counterparts, each of which shall be deemed to be an
original and all of which shall constitute together but one and the same
agreement.
SECTION 7.8. Governing Law, Entire Agreement, etc. THIS PLEDGE AGREEMENT
SHALL BE DEEMED TO BE A CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF
THE STATE OF NEW YORK, EXCEPT TO THE EXTENT THAT THE VALIDITY OR PERFECTION OF
THE SECURITY INTEREST HEREUNDER, OR REMEDIES HEREUNDER, IN RESPECT OF ANY
PARTICULAR COLLATERAL ARE GOVERNED BY THE LAWS OF A JURISDICTION OTHER THAN THE
STATE OF NEW YORK. THIS PLEDGE AGREEMENT AND THE OTHER LOAN DOCUMENTS CONSTITUTE
THE ENTIRE UNDERSTANDING AMONG THE PARTIES HERETO WITH RESPECT TO THE SUBJECT
MATTER HEREOF AND SUPERSEDE ANY PRIOR AGREEMENTS, WRITTEN OR ORAL, WITH RESPECT
THERETO.
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Pledge Agreement
to be duly executed and delivered by their respective officers thereunto duly
authorized as of the day and year first above written.
DUANE READE INC.
By /s/William J. Tennant
----------------------------
Name: William J. Tennant
Title: Senior Vice President
FLEET NATIONAL BANK,
as Administrative Agent
By /s/ A. Glen Kewley
----------------------------
Name: A. Glen Kewley
Title: A.V.P.
<PAGE>
EXHIBIT A
to Holdings
Pledge Agreement
PROMISSORY NOTE
$_______________ ________ __, ____
FOR VALUE RECEIVED, the undersigned, ______________, a _______________
corporation (the "Maker"), promises to pay to the order of DUANE READE INC., a
Delaware corporation (the "Payee"), in equal ________ installments, commencing
__________ __, ____ to and including __________ __, ____, the principal sum of
______________ DOLLARS ($________), representing the aggregate principal amount
of an intercompany loan made by the Payee to the Maker.
The unpaid principal amount of this promissory note (this "Note") from
time to time outstanding shall bear interest at a rate of interest equal to
____________, which the Maker represents to be a lawful and commercially
reasonable rate, payable __________, and all payments of principal of and
interest on this Note shall be payable in lawful currency of the United States
of America. All such payments shall be made by the Maker to an account
established by the Payee at _______________ and shall be recorded on the grid
attached hereto by the holder hereof (including the Administrative Agent
(hereinafter defined) as pledgee). Upon notice from the Administrative Agent
that a Default (as defined in the Amended and Restated Credit Agreement, dated
as of September 11, 1998 amending and restating in its entirety that certain
Credit Agreement, dated as of February 13, 1998 (as amended prior to the
Amendment Effective Date) (as so amended and restated or otherwise modified, and
together with all amendments, supplements, restatements and other modifications,
if any, thereafter made thereto, the "Credit Agreement"), among Duane Reade, a
New York general partnership (the "Borrower"), the Payee and the other Parent
Guarantors named therein, the various financial institutions as are, or may from
time to time become, parties thereto (each, individually, a "Lender", and
collectively, the "Lenders"), DLJ Capital Funding, Inc., as Syndication Agent,
Fleet National Bank, as the administrative agent (in such capacity, the
"Administrative Agent") and Credit Lyonnais New York Branch, as the
documentation agent (in such capacity, the "Documentation Agent") as of the
nature referred to in Section 8.1.9 of the Credit Agreement or an Event of
Default (as defined in the Credit Agreement) has occurred and is continuing
under the Credit Agreement, the Maker shall make such payments, in same day
funds, to such other account as the Administrative Agent shall direct in such
notice.
This Note is one of the Pledged Notes referred to in the Pledge Agreement.
Upon the occurrence and continuance of an Event of Default under the Credit
Agreement, and notice thereof by the Administrative Agent to the Maker, the
Administrative Agent shall have all
<PAGE>
rights of the Payee to collect and accelerate, and enforce all rights with
respect to, theIndebtedness evidenced by this Note. Unless otherwise defined
herein or the context otherwise requires, terms used herein have the meanings
provided in the Credit Agreement.
Reference is made to the Credit Agreement for a description of the Pledge
Agreement pursuant to which this Note has been pledged to the Administrative
Agent as security for the Secured Obligations outstanding from time to time
under the Credit Agreement and each other Loan Document.
In addition to, but not in limitation of, the foregoing, the Maker further
agrees to pay all expenses, including reasonable attorneys' fees and legal
expenses, incurred by the holder (including the Administrative Agent as pledgee)
of this Note endeavoring to collect any amounts payable hereunder which are not
paid when due, whether by acceleration or otherwise.
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
INTERNAL LAWS OF THE STATE OF NEW YORK.
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<PAGE>
THE MAKER HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY
RIGHTS IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED ON THIS
NOTE. THE MAKER ACKNOWLEDGES AND AGREES THAT IT HAS RECEIVED FULL AND SUFFICIENT
CONSIDERATION FOR THIS PROVISION AND THAT THIS PROVISION IS A MATERIAL
INDUCEMENT FOR THE PAYEE TO ACCEPT THIS NOTE.
[NAME OF MAKER]
By
Name:
Title:
Pay to the order of FLEET NATIONAL
BANK, as Administrative Agent
DUANE READE INC.
By
Name:
Title:
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<PAGE>
GRID
Intercompany Loans made by Duane Reade Inc. to [Name of Maker] and
payments of principal of such Loans.
================================================================================
Amount of Amount of Outstanding
Intercompany Principal Principal Notation
Date Loan Payment Balance Made By
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<PAGE>
ATTACHMENT 1
to Holdings
Pledge Agreement
DUANE READE INC.
Item A. Pledged Notes
Pledged Note Issuer Description
None.
Item B. Pledged Shares
Common Stock
------------------------------------
Pledged Share Issuer Authorized Outstanding % of Shares
Shares Shares Pledged
------ ------ -------
DRI I Inc. 1,000 1,000 100%
Item C. Additional Subsidiaries
None.
<PAGE>
EXHIBIT G-2
[CONFORMED COPY]
BORROWER PLEDGE AGREEMENT
This PLEDGE AGREEMENT (as amended, supplemented, amended and restated or
otherwise modified from time to time, this "Pledge Agreement"), dated as of
September 11, 1998, is made by DUANE READE, a New York general partnership (the
"Pledgor"), in favor of FLEET NATIONAL BANK, as administrative agent (together
with any successor(s) thereto in such capacity, the "Administrative Agent") for
each of the Secured Parties.
W I T N E S S E T H:
WHEREAS, pursuant to that certain Amended and Restated Credit Agreement,
dated as of September 11, 1998, amending and restating in its entirety that
certain Credit Agreement, dated as of February 13, 1998 (as amended prior to the
Amendment Effective Date, the "Existing Credit Agreement") (as so amended and
restated or otherwise modified, and together with all amendments, supplements,
restatements and other modifications, if any, thereafter made thereto, the
"Credit Agreement"), among the Pledgor, the Parent Guarantors named therein, the
various financial institutions as are, or may from time to time become, parties
thereto (each, individually, a "Lender", and collectively, the "Lenders"), DLJ
Capital Funding, Inc., as the Syndication Agent, Fleet National Bank, as the
Administrative Agent and Credit Lyonnais New York Branch, as the Documentation
Agent, the Lenders and the Issuer have extended Commitments to make Credit
Extensions to the Pledgor;
WHEREAS, as a condition precedent to the making and maintaining of the
Credit Extensions under the Credit Agreement, the Pledgor is required to execute
and deliver this Pledge Agreement; and
WHEREAS, the Pledgor has duly authorized the execution, delivery and
performance of this Pledge Agreement;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and in order to induce the Lenders
and the Issuer to make and maintain Credit Extensions to the Pledgor pursuant to
the Credit Agreement, and to induce the Secured Parties to enter into Rate
Protection Agreement(s), the Pledgor agrees, for the benefit of each Secured
Party, as follows:
<PAGE>
ARTICLE I
DEFINITIONS
SECTION 1.1. Certain Terms. The following terms (whether or not
underscored) when used in this Pledge Agreement, including its preamble and
recitals, shall have the following meanings (such definitions to be equally
applicable to the singular and plural forms thereof):
"Administrative Agent" is defined in the preamble.
"Collateral" is defined in Section 2.1.
"Credit Agreement" is defined in the first recital.
"Distributions" means all stock dividends, liquidating dividends, shares
of stock resulting from (or in connection with the exercise of) stock splits,
reclassifications, warrants, options, non-cash dividends, mergers,
consolidations, and all other distributions (whether similar or dissimilar to
the foregoing) on or with respect to any Pledged Shares or other shares of
capital stock constituting Collateral, but shall not include Dividends.
"Dividends" means cash dividends and cash distributions with respect to
any Pledged Shares or other Pledged Property made in the ordinary course of
business and not a liquidating dividend.
"Lender" and "Lenders" are defined in the first recital.
"Pledge Agreement" is defined in the preamble.
"Pledged Note Issuer" means each Person identified in Item A of Attachment
1 hereto as the issuer of the Pledged Note identified opposite the name of such
Person.
"Pledged Notes" means all promissory notes of any Pledged Note Issuer
substantially the form of Exhibit A hereto which are delivered by the Pledgor to
the Administrative Agent as Pledged Property hereunder, as such promissory
notes, in accordance with Section 4.6, are amended, modified or supplemented
from time to time, together with any promissory note of any Pledged Note Issuer
taken in extension or renewal thereof or substitution therefor.
"Pledged Property" means all Pledged Shares, all Pledged Notes, and all
other pledged shares of capital stock or promissory notes, all other securities,
all assignments of any amounts due or to become due, all other instruments which
are now being delivered by the Pledgor to the Administrative Agent or may from
time to time hereafter be delivered by the Pledgor to the Administrative Agent
for the purpose of pledge under this Pledge Agreement or any other
<PAGE>
Loan Document, and all proceeds of any of the foregoing.
"Pledged Share Issuer" means each Person identified in Item B of
Attachment 1 hereto as the issuer of the Pledged Shares identified opposite the
name of such Person.
"Pledged Shares" means all shares of capital stock of any Pledged Share
Issuer which are delivered by the Pledgor to the Administrative Agent as Pledged
Property hereunder.
"Pledgor" is defined in the preamble.
"Securities Act" is defined in Section 6.2.
"U.C.C." means the Uniform Commercial Code, as in effect from time to time
in the State of New York.
SECTION 1.2. Credit Agreement Definitions. Unless otherwise defined herein
or the context otherwise requires, terms used in this Pledge Agreement,
including its preamble and recitals, have the meanings provided in the Credit
Agreement.
SECTION 1.3. U.C.C. Definitions. Unless otherwise defined herein or in the
Credit Agreement or the context otherwise requires, terms for which meanings are
provided in the U.C.C. are used in this Pledge Agreement, including its preamble
and recitals, with such meanings.
ARTICLE II
PLEDGE
SECTION 2.1. Grant of Security Interest. The Pledgor hereby pledges,
hypothecates, assigns, charges, mortgages, delivers, and transfers to the
Administrative Agent, for its benefit and the ratable benefit of each of the
Secured Parties, and hereby grants to the Administrative Agent, for its benefit
and the ratable benefit of the Secured Parties, a continuing security interest
in, all of the following property (the "Collateral"):
(a) all promissory notes of each Pledged Note Issuer identified in
Item A of Attachment 1 hereto;
(b) all other Pledged Notes issued from time to time;
(c) all issued and outstanding shares of capital stock of each
Pledged Share Issuer identified in Item B of Attachment 1 hereto;
<PAGE>
(d) all other Pledged Shares issued from time to time;
(e) all other Pledged Property, whether now or hereafter delivered
to the Administrative Agent in connection with this Pledge Agreement;
(f) all Dividends, Distributions, interest, and other payments and
rights with respect to any Pledged Property; and
(g) all proceeds of any of the foregoing.
SECTION 2.2. Security for Obligations. This Pledge Agreement secures the
payment in full in cash of all Obligations of the Pledgor now or hereafter
existing under the Credit Agreement, the Notes and each other Loan Document to
which the Pledgor is or may become a party, whether for principal, interest,
costs, fees, expenses, or otherwise.
SECTION 2.3. Delivery of Pledged Property. All certificates or instruments
representing or evidencing any Collateral, including all Pledged Shares and all
Pledged Notes, shall be delivered to and held by or on behalf of (and, in the
case of the Pledged Notes, endorsed to the order of) the Administrative Agent
pursuant hereto, shall be in suitable form for transfer by delivery, and shall
be accompanied by all necessary instruments of transfer or assignment, duly
executed in blank.
SECTION 2.4. Dividends on Pledged Shares and Payments on Pledged Notes. In
the event that any Dividend is to be paid on any Pledged Share or any payment of
principal or interest is to be made on any Pledged Note at a time when no
Default of the nature referred to in Section 8.1.9 of the Credit Agreement or
Event of Default has occurred and is continuing or would result therefrom, such
Dividend or payment may be paid directly to the Pledgor. If any such Default or
Event of Default has occurred and is continuing, then any such Dividend or
payment shall be paid directly to the Administrative Agent.
SECTION 2.5. Continuing Security Interest; Transfer of Note. This Pledge
Agreement shall create a continuing security interest in the Collateral and
shall
(a) remain in full force and effect until payment in full in cash of
all Obligations, the termination or expiration of all Letters of Credit,
the termination of all Rate Protection Agreements and the termination of
all Commitments,
(b) be binding upon the Pledgor and its successors, transferees and
assigns, and
(c) inure, together with the rights and remedies of the
Administrative Agent hereunder, to the benefit of the Administrative Agent
and each other Secured Party.
Without limiting the foregoing clause (c), any Lender may assign or otherwise
transfer (in
<PAGE>
whole or in part) any Note or Loan held by it to any other Person or entity, and
such other Person or entity shall thereupon become vested with all the rights
and benefits in respect thereof granted to such Lender under any Loan Document
(including this Pledge Agreement) or otherwise, subject, however, to any
contrary provisions in such assignment or transfer, and to the provisions of
Section 11.11 and Article X of the Credit Agreement. Upon (i) the sale, transfer
or other disposition of Collateral in accordance with the Credit Agreement or
(ii) the payment in full in cash of all Obligations, the termination or
expiration of all Letters of Credit, the termination of all Rate Protection
Agreements and the termination of all Commitments, the security interests
granted herein shall automatically terminate with respect to (x) such Collateral
(in the case of clause (i)) or (y) all Collateral (in the case of clause (ii)).
Upon any such sale, transfer, disposition or termination, the Administrative
Agent will, at the Pledgor's sole expense, deliver to the Pledgor, without any
representations, warranties or recourse of any kind whatsoever, all certificates
and instruments representing or evidencing all Pledged Shares and all Pledged
Notes, together with all other Collateral held by the Administrative Agent
hereunder, and execute and deliver to the Pledgor such documents as the Pledgor
shall reasonably request to evidence such termination.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.1. Representations and Warranties, etc. The Pledgor represents
and warrants to each Secured Party, as at the date of each pledge and delivery
hereunder (including each pledge and delivery of Pledged Shares and each pledge
and delivery of a Pledged Note) by the Pledgor to the Administrative Agent of
any Collateral, as set forth in this Article III.
SECTION 3.2. Ownership, No Liens, etc. The Pledgor is the legal and
beneficial owner of, and has good and marketable title to (and has full right
and authority to pledge and assign) such Collateral, free and clear of all
liens, security interests, options, or other charges or encumbrances, except any
lien or security interest granted pursuant hereto in favor of the Administrative
Agent.
SECTION 3.3. Valid Security Interest. The delivery of such Collateral to
the Administrative Agent is effective to create a valid, perfected, first
priority security interest in such Collateral and all proceeds thereof, securing
the Obligations. No filing or other action will be necessary to perfect or
protect such security interest.
SECTION 3.4. As to Pledged Shares. In the case of any Pledged Shares
constituting such Collateral, all of such Pledged Shares are duly authorized and
validly issued, fully paid, and non-assessable, and constitute all of the issued
and outstanding shares of capital stock of each Pledged Share Issuer. The
Pledgor has no Subsidiaries other than the Pledged Share Issuers, except as set
forth in Item C of Attachment 1.
<PAGE>
SECTION 3.5. As to Pledged Notes. In the case of each Pledged Note, all of
such Pledged Notes have been duly authorized, executed, endorsed, issued and
delivered, and are the legal, valid and binding obligation of the issuers
thereof, and are not in default.
SECTION 3.6. Authorization, Approval, etc. No authorization, approval, or
other action by, and no notice to or filing with, any governmental authority,
regulatory body or any other Person is required either
(a) for the pledge by the Pledgor of any Collateral pursuant to this
Pledge Agreement or for the execution, delivery, and performance of this
Pledge Agreement by the Pledgor, or
(b) for the exercise by the Administrative Agent of the voting or
other rights provided for in this Pledge Agreement, or, except with
respect to any Pledged Shares, as may be required in connection with a
disposition of such Pledged Shares by laws affecting the offering and sale
of securities generally, the remedies in respect of the Collateral
pursuant to this Pledge Agreement.
SECTION 3.7. Compliance with Laws. The Pledgor is in compliance with the
requirements of all applicable laws (including the provisions of the Fair Labor
Standards Act), rules, regulations and orders of every governmental authority,
the non-compliance with which could reasonably be expected to have a Material
Adverse Effect or which could reasonably be expected to materially adversely
affect the value of the Collateral or the worth of the Collateral as collateral
security.
ARTICLE IV
COVENANTS
SECTION 4.1. Certain Covenants. The Pledgor covenants and agrees that, so
long as any portion of the Secured Obligations shall remain unpaid, any Letters
of Credit shall be outstanding, any Rate Protection Agreement shall remain in
full force and effect or any Secured Party shall have any outstanding
Commitment, the Pledgor will, unless the Required Lenders shall otherwise
consent in writing, perform, comply with and be bound by the obligations set
forth in this Article IV.
SECTION 4.2. Protect Collateral; Further Assurances, etc. The Pledgor
agrees and covenants that it will not sell, assign, transfer, pledge, or
encumber in any other manner the Collateral (except in favor of the
Administrative Agent hereunder). The Pledgor will warrant and defend the right
and title herein granted unto the Administrative Agent in and to the Collateral
(and all right, title, and interest represented by the Collateral) against the
claims and
<PAGE>
demands of all Persons whomsoever. The Pledgor agrees that at any time, and from
time to time, at the expense of the Pledgor, the Pledgor will promptly execute
and deliver all further instruments, and take all further action, that may be
necessary or desirable, or that the Administrative Agent may reasonably request,
in order to perfect and protect any security interest granted or purported to be
granted hereby or to enable the Administrative Agent to exercise and enforce its
rights and remedies hereunder with respect to any Collateral.
SECTION 4.3. Stock Powers, etc. The Pledgor agrees that all Pledged Shares
(and all other shares of capital stock constituting Collateral) delivered by the
Pledgor pursuant to this Pledge Agreement will be accompanied by duly executed
undated blank stock powers, or other equivalent instruments of transfer
acceptable to the Administrative Agent. The Pledgor will, from time to time upon
the request of the Administrative Agent, promptly deliver to the Administrative
Agent such stock powers, instruments, and similar documents, satisfactory in
form and substance to the Administrative Agent, with respect to the Collateral
as the Administrative Agent may reasonably request and will, from time to time
upon the request of the Administrative Agent after the occurrence of any Event
of Default, promptly transfer any Pledged Shares or other shares of common stock
constituting Collateral into the name of any nominee designated by the
Administrative Agent.
SECTION 4.4. Continuous Pledge. The Pledgor will, at all times, keep
pledged to the Administrative Agent pursuant hereto all Pledged Shares and all
other shares of capital stock constituting Collateral, all Dividends and
Distributions with respect thereto, all Pledged Notes, all interest, principal
and other proceeds received by the Administrative Agent with respect to the
Pledged Notes, and all other Collateral and other securities, instruments,
proceeds, and rights from time to time received by or distributable to the
Pledgor in respect of any Collateral and will not permit any Pledged Share
Issuer to issue any capital stock which shall not have been immediately duly
pledged hereunder on a first priority perfected basis.
SECTION 4.5. Voting Rights; Dividends, etc. The Pledgor agrees:
(a) after any Default of the nature referred to in Section 8.1.9 of
the Credit Agreement or Event of Default shall have occurred and be
continuing, promptly upon receipt of notice thereof by the Pledgor and
without any request therefor by the Administrative Agent, to deliver
(properly endorsed where required hereby or requested by the
Administrative Agent) to the Administrative Agent all Dividends,
Distributions, all interest, all principal, all other cash payments, and
all proceeds of the Collateral, all of which shall be held by the
Administrative Agent as additional Collateral for use in accordance with
Section 6.4; and
(b) after any Event of Default shall have occurred and be continuing
and the Administrative Agent has notified the Pledgor of the
Administrative Agent's intention to exercise its voting power under this
Section 4.5(b)
(i) the Administrative Agent may exercise (to the exclusion of
the
<PAGE>
Pledgor) the voting power and all other incidental rights of
ownership with respect to any Pledged Shares or other shares of
capital stock constituting Collateral and the Pledgor hereby grants
the Administrative Agent an irrevocable proxy, exercisable under
such circumstances, to vote the Pledged Shares and such other
Collateral; and
(ii) promptly to deliver to the Administrative Agent such
additional proxies and other documents as may be necessary to allow
the Administrative Agent to exercise such voting power.
All Dividends, Distributions, interest, principal, cash payments, and proceeds
which may at any time and from time to time be held by the Pledgor but which the
Pledgor is then obligated to deliver to the Administrative Agent, shall, until
delivery to the Administrative Agent, be held by the Pledgor separate and apart
from its other property in trust for the Administrative Agent. The
Administrative Agent agrees that unless an Event of Default shall have occurred
and be continuing and the Administrative Agent shall have given the notice
referred to in Section 4.5(b), the Pledgor shall have the exclusive voting power
with respect to any shares of capital stock (including any of the Pledged
Shares) constituting Collateral and the Administrative Agent shall, upon the
written request of the Pledgor, promptly deliver such proxies and other
documents, if any, as shall be reasonably requested by the Pledgor which are
necessary to allow the Pledgor to exercise voting power with respect to any such
share of capital stock (including any of the Pledged Shares) constituting
Collateral; provided, however, that no vote shall be cast, or consent, waiver,
or ratification given, or action taken by the Pledgor that would impair any
Collateral or be inconsistent with or violate any provision of the Credit
Agreement or any other Loan Document (including this Pledge Agreement).
SECTION 4.6. Additional Undertakings. The Pledgor will not, without the
prior written consent of the Administrative Agent:
(a) enter into any agreement amending, supplementing, or waiving any
provision of any Pledged Note (including any underlying instrument
pursuant to which such Pledged Note is issued) or compromising or
releasing or extending the time for payment of any obligation of the maker
thereof; or
(b) take or omit to take any action the taking or the omission of
which would result in any impairment or alteration of any obligation of
the maker of any Pledged Note or other instrument constituting Collateral.
<PAGE>
ARTICLE V
THE ADMINISTRATIVE AGENT
SECTION 5.1. Administrative Agent Appointed Attorney-in-Fact. The Pledgor
hereby irrevocably appoints the Administrative Agent the Pledgor's
attorney-in-fact, with full authority in the place and stead of the Pledgor and
in the name of the Pledgor or otherwise, from time to time in the Administrative
Agent's discretion, to take any action and to execute any instrument which the
Administrative Agent may deem necessary or advisable to accomplish the purposes
of this Pledge Agreement, including after the occurrence and continuance of a
Default of the nature referred to in Section 8.1.9 of the Credit Agreement or an
Event of Default:
(a) to ask, demand, collect, sue for, recover, compromise, receive
and give acquittance and receipts for moneys due and to become due under
or in respect of any of the Collateral;
(b) to receive, endorse, and collect any drafts or other
instruments, documents and chattel paper, in connection with clause (a)
above; and
(c) to file any claims or take any action or institute any
proceedings which the Administrative Agent may deem necessary or desirable
for the collection of any of the Collateral or otherwise to enforce the
rights of the Administrative Agent with respect to any of the Collateral.
The Pledgor hereby acknowledges, consents and agrees that the power of attorney
granted pursuant to this Section is irrevocable and coupled with an interest.
SECTION 5.2. Administrative Agent May Perform. If the Pledgor fails to
perform any agreement contained herein, the Administrative Agent may itself
perform, or cause performance of, such agreement, and the expenses of the
Administrative Agent incurred in connection therewith shall be payable by the
Pledgor pursuant to Section 6.4.
SECTION 5.3. Administrative Agent Has No Duty. The powers conferred on the
Administrative Agent hereunder are solely to protect its interest (on behalf of
the Secured Parties) in the Collateral and shall not impose any duty on it to
exercise any such powers. Except for reasonable care of any Collateral in its
possession and the accounting for moneys actually received by it hereunder, the
Administrative Agent shall have no duty as to any Collateral or responsibility
for
(a) ascertaining or taking action with respect to calls,
conversions, exchanges, maturities, tenders or other matters relative to
any Pledged Property, whether or not
<PAGE>
the Administrative Agent has or is deemed to have knowledge of such
matters, or
(b) taking any necessary steps to preserve rights against prior
parties or any other rights pertaining to any Collateral.
SECTION 5.4. Reasonable Care. The Administrative Agent is required to
exercise reasonable care in the custody and preservation of any of the
Collateral in its possession; provided, however, the Administrative Agent shall
be deemed to have exercised reasonable care in the custody and preservation of
any of the Collateral, if it takes such action for that purpose as the Pledgor
reasonably requests in writing at times other than upon the occurrence and
during the continuance of any Event of Default, but failure of the
Administrative Agent to comply with any such request at any time shall not in
itself be deemed a failure to exercise reasonable care.
ARTICLE VI
REMEDIES
SECTION 6.1. Certain Remedies. If any Event of Default shall have occurred
and be continuing:
(a) The Administrative Agent may exercise in respect of the
Collateral, in addition to other rights and remedies provided for herein
or otherwise available to it, all the rights and remedies of a secured
party on default under the U.C.C. (whether or not the U.C.C. applies to
the affected Collateral) and also may, without notice except as specified
below, sell the Collateral or any part thereof in one or more parcels at
public or private sale, at any of the Administrative Agent's offices or
elsewhere, for cash, on credit or for future delivery, and upon such other
terms as the Administrative Agent may deem commercially reasonable. The
Pledgor agrees that, to the extent notice of sale shall be required by
law, at least ten days' prior notice to the Pledgor of the time and place
of any public sale or the time after which any private sale is to be made
shall constitute reasonable notification. The Administrative Agent shall
not be obligated to make any sale of Collateral regardless of notice of
sale having been given. The Administrative Agent may adjourn any public or
private sale from time to time by announcement at the time and place fixed
therefor, and such sale may, without further notice, be made at the time
and place to which it was so adjourned.
(b) The Administrative Agent may
(i) transfer all or any part of the Collateral into the name
of the Administrative Agent or its nominee, with or without
disclosing that such Collateral is subject to the lien and security
interest hereunder,
<PAGE>
(ii) notify the parties obligated on any of the Collateral to
make payment to the Administrative Agent of any amount due or to
become due thereunder,
(iii) enforce collection of any of the Collateral by suit or
otherwise, and surrender, release or exchange all or any part
thereof, or compromise or extend or renew for any period (whether or
not longer than the original period) any obligations of any nature
of any party with respect thereto,
(iv) endorse any checks, drafts, or other writings in the
Pledgor's name to allow collection of the Collateral,
(v) take control of any proceeds of the Collateral, and
(vi) execute (in the name, place and stead of the Pledgor)
endorsements, assignments, stock powers and other instruments of
conveyance or transfer with respect to all or any of the Collateral.
SECTION 6.2. Securities Laws. If the Administrative Agent shall determine
to exercise its right to sell all or any of the Collateral pursuant to Section
6.1, the Pledgor agrees that, upon request of the Administrative Agent, the
Pledgor will, at its own expense:
(a) execute and deliver, and cause each issuer of the Collateral
contemplated to be sold and the directors and officers thereof to execute
and deliver, all such instruments and documents, and do or cause to be
done all such other acts and things, as may be necessary or, in the
opinion of the Administrative Agent, advisable to register such Collateral
under the provisions of the Securities Act of 1933, as from time to time
amended (the "Securities Act"), and to cause the registration statement
relating thereto to become effective and to remain effective for such
period as prospectuses are required by law to be furnished, and to make
all amendments and supplements thereto and to the related prospectus
which, in the opinion of the Administrative Agent, are necessary or
advisable, all in conformity with the requirements of the Securities Act
and the rules and regulations of the Securities and Exchange Commission
applicable thereto;
(b) use its best efforts to qualify the Collateral under the state
securities or "Blue Sky" laws and to obtain all necessary governmental
approvals for the sale of the Collateral, as requested by the
Administrative Agent;
(c) cause each such issuer to make available to its security
holders, as soon as practicable, an earnings statement that will satisfy
the provisions of Section 11(a) of the Securities Act; and
(d) do or cause to be done all such other acts and things as may be
necessary to
<PAGE>
make such sale of the Collateral or any part thereof valid and binding and
in compliance with applicable law.
The Pledgor further acknowledges the impossibility of ascertaining the amount of
damages that would be suffered by the Administrative Agent or the Secured
Parties by reason of the failure by the Pledgor to perform any of the covenants
contained in this Section and, consequently, agrees that, if the Pledgor shall
fail to perform any of such covenants, it shall pay, as liquidated damages and
not as a penalty, an amount equal to the value (as determined by the
Administrative Agent) of the Collateral on the date the Administrative Agent
shall demand compliance with this Section.
SECTION 6.3. Compliance with Restrictions. The Pledgor agrees that in any
sale of any of the Collateral whenever an Event of Default shall have occurred
and be continuing, the Administrative Agent is hereby authorized to comply with
any limitation or restriction in connection with such sale as it may be advised
by counsel is necessary in order to avoid any violation of applicable law
(including compliance with such procedures as may restrict the number of
prospective bidders and purchasers, require that such prospective bidders and
purchasers have certain qualifications, and restrict such prospective bidders
and purchasers to persons who will represent and agree that they are purchasing
for their own account for investment and not with a view to the distribution or
resale of such Collateral), or in order to obtain any required approval of the
sale or of the purchaser by any governmental regulatory authority or official,
and the Pledgor further agrees that such compliance shall not result in such
sale being considered or deemed not to have been made in a commercially
reasonable manner, nor shall the Administrative Agent be liable nor accountable
to the Pledgor for any discount allowed by the reason of the fact that such
Collateral is sold in compliance with any such limitation or restriction.
SECTION 6.4. Application of Proceeds. All cash proceeds received by the
Administrative Agent in respect of any sale of, collection from, or other
realization upon, all or any part of the Collateral shall be applied by the
Administrative Agent against, all or any part of the Obligations as follows:
(a) first, to the payment of any amounts payable to the
Administrative Agent pursuant to Section 11.3 of the Credit Agreement and
Section 6.5;
(b) second, to the equal and ratable payment of Obligations, in
accordance with each Secured Party's Obligations owing to it under or
pursuant to the Credit Agreement or any other Loan Document, or under or
pursuant to any Hedging Obligation included in the Obligations as to each
Secured Party, applied
(i) first to fees and expense reimbursements then due to such
Secured Party,
<PAGE>
(ii) then to interest due to such Secured Party,
(iii) then to pay or prepay principal of the Loans owing to,
or to reduce the "credit exposure" of, such Secured Party under such
Hedging Obligation, as the case may be, and
(iv) then to pay the remaining outstanding Obligations and
cash collateralize all Letter of Credit Outstandings;
(c) third, without duplication of any amounts paid pursuant to
clause (b) above, to the Indemnified Parties to the extent of any amounts
owing pursuant to Section 11.4 of the Credit Agreement; and
(d) fourth, to be held as additional collateral security until the
payment in full in cash of all of the Obligations, the termination or
expiration of all Letters of Credit, the termination of all Rate
Protection Agreements and the termination of all Commitments, after which
such remaining cash proceeds shall be paid over to the Pledgor or to
whomsoever may be lawfully entitled to receive such surplus.
For purposes of this Pledge Agreement, the "credit exposure" at any time of any
Secured Party with respect to a Hedging Obligation to which such Secured Party
is a party shall be determined at such time in accordance with the customary
methods of calculating credit exposure under similar arrangements by the
counterparty to such arrangements, taking into account potential interest rate
movements and the respective termination provisions and notional principal
amount and term of such Hedging Obligation.
SECTION 6.5. Indemnity and Expenses. The Pledgor hereby indemnifies and
holds harmless the Administrative Agent from and against any and all claims,
losses, and liabilities arising out of or resulting from this Pledge Agreement
(including enforcement of this Pledge Agreement), except claims, losses, or
liabilities resulting from the Administrative Agent's gross negligence or wilful
misconduct. Upon demand, the Pledgor will pay to the Administrative Agent the
amount of any and all reasonable expenses, including the reasonable fees and
disbursements of its counsel and of any experts and agents, which the
Administrative Agent may incur in connection with:
(a) the administration of this Pledge Agreement, the Credit
Agreement and each other Loan Document;
(b) the custody, preservation, use, or operation of, or the sale of,
collection from, or other realization upon, any of the Collateral;
(c) the exercise or enforcement of any of the rights of the
Administrative Agent hereunder; or
<PAGE>
(d) the failure by the Pledgor to perform or observe any of the
provisions hereof.
ARTICLE VII
MISCELLANEOUS PROVISIONS
SECTION 7.1. Loan Document. This Pledge Agreement is a Loan Document
executed pursuant to the Credit Agreement and shall (unless otherwise expressly
indicated herein) be construed, administered and applied in accordance with the
terms and provisions thereof.
SECTION 7.2. Amendments, etc. No amendment to or waiver of any provision
of this Pledge Agreement nor consent to any departure by the Pledgor herefrom
shall in any event be effective unless the same shall be in writing and signed
by the Administrative Agent (on behalf of the Lenders or the Required Lenders,
as the case may be) and the Pledgor in the case of an amendment, and then such
waiver or consent shall be effective only in the specific instance and for the
specific purpose for which it is given.
SECTION 7.3. Protection of Collateral. The Administrative Agent may from
time to time, at its option, perform any act which the Pledgor agrees hereunder
to perform and which the Pledgor shall fail to perform after being requested in
writing so to perform (it being understood that no such request need be given
after the occurrence and during the continuance of an Event of Default) and the
Administrative Agent may from time to time take any other action which the
Administrative Agent reasonably deems necessary for the maintenance,
preservation or protection of any of the Collateral or of its security interest
therein.
SECTION 7.4. Addresses for Notices. All notices and other communications
provided for hereunder shall be in writing (including telegraphic communication)
and mailed or telecopied or delivered to either party hereto, addressed to such
party at such party's address specified in the Credit Agreement. All such
notices and other communications, when mailed and properly addressed with
postage prepaid or if properly addressed and sent by pre-paid courier service,
shall be deemed given when received; any such notice or communication, if
transmitted by telecopier, shall be deemed given when transmitted and
electronically confirmed.
SECTION 7.5. Section Captions. Section captions used in this Pledge
Agreement are for convenience of reference only, and shall not affect the
construction of this Pledge Agreement.
SECTION 7.6. Severability. Wherever possible each provision of this Pledge
<PAGE>
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Pledge Agreement shall be
prohibited by or invalid under such law, such provision shall be ineffective to
the extent of such prohibition or invalidity, without invalidating the remainder
of such provision or the remaining provisions of this Pledge Agreement.
SECTION 7.7. Counterparts. This Pledge Agreement may be executed by the
parties hereto in several counterparts, each of which shall be deemed to be an
original and all of which shall constitute together but one and the same
agreement.
SECTION 7.8. Governing Law, Entire Agreement, etc. THIS PLEDGE AGREEMENT
SHALL BE DEEMED TO BE A CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF
THE STATE OF NEW YORK, EXCEPT TO THE EXTENT THAT THE VALIDITY OR PERFECTION OF
THE SECURITY INTEREST HEREUNDER, OR REMEDIES HEREUNDER, IN RESPECT OF ANY
PARTICULAR COLLATERAL ARE GOVERNED BY THE LAWS OF A JURISDICTION OTHER THAN THE
STATE OF NEW YORK. THIS PLEDGE AGREEMENT AND THE OTHER LOAN DOCUMENTS CONSTITUTE
THE ENTIRE UNDERSTANDING AMONG THE PARTIES HERETO WITH RESPECT TO THE SUBJECT
MATTER HEREOF AND SUPERSEDE ANY PRIOR AGREEMENTS, WRITTEN OR ORAL, WITH RESPECT
THERETO.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Pledge Agreement
to be duly executed and delivered by their respective officers thereunto duly
authorized as of the day and year first above written.
DUANE READE
By Duane Reade Inc., a general partner
By /s/ William J. Tennant
-----------------------------------
Name: William J. Tennant
Title: Senior Vice President
By DRI I Inc., a general partner
By /s/ William J. Tennant
-----------------------------------
Name: William J. Tennant
Title: Senior Vice President
FLEET NATIONAL BANK,
as Administrative Agent
By /s/ A. Glen Kewley
-----------------------------------
Name: A. Glen Kewley
Title: A.V.P.
<PAGE>
EXHIBIT A
to Borrower
Pledge Agreement
PROMISSORY NOTE
$_______________ ________ __, ____
FOR VALUE RECEIVED, the undersigned, ______________, a _______________
corporation (the "Maker"), promises to pay to the order of DUANE READE, a New
York general partnership (the "Payee"), in equal ________ installments,
commencing __________ __, ____ to and including __________ __, ____, the
principal sum ________ of DOLLARS ($________), representing the aggregate
principal amount of an intercompany loan made by the Payee to the Maker.
The unpaid principal amount of this promissory note (this "Note") from
time to time outstanding shall bear interest at a rate of interest equal to
____________, which the Maker represents to be a lawful and commercially
reasonable rate, payable __________, and all payments of principal of and
interest on this Note shall be payable in lawful currency of the United States
of America. All such payments shall be made by the Maker to an account
established by the Payee at _______________ and shall be recorded on the grid
attached hereto by the holder hereof (including the Administrative Agent as
pledgee). Upon notice from the Administrative Agent (hereinafter defined) that a
Default (as defined in the Amended and Restated Credit Agreement, dated as of
September 11, 1998 amending and restating in its entirety that certain Credit
Agreement, dated as of February 13, 1998 (as amended prior to the Amendment
Effective Date) (as so amended and restated and otherwise modified, and together
with all amendments supplements, restatements and other modifications, if any,
thereafter made thereto, or otherwise modified from time to time, the "Credit
Agreement"), among the Payee, the Parent Guarantors named therein, various
financial institutions as are, or may from time to time become, parties thereto
(each individually, a "Lender", and collectively, the "Lenders"), DLJ Capital
Funding, Inc., as Syndication Agent, Fleet National Bank, as the administrative
agent (in such capacity, the "Administrative Agent") and Credit Lyonnais New
York Branch, as the documentation agent (in such capacity, the "Documentation
Agent") as of the nature referred to in Section 8.1.9 of the Credit Agreement or
an Event of Default (as defined in the Credit Agreement) has occurred and is
continuing under the Credit Agreement, the Maker shall make such payments, in
same day funds, to such other account as the Administrative Agent shall direct
in such notice.
This Note is one of the Pledged Notes referred to in the Pledge Agreement.
Upon the occurrence and continuance of an Event of Default under the Credit
Agreement, and notice thereof by the Administrative Agent to the Maker, the
Administrative Agent shall have all rights of the Payee to collect and
accelerate, and enforce all rights with respect to, the
<PAGE>
Indebtedness evidenced by this Note. Unless otherwise defined herein or the
context otherwise requires, terms used herein have the meanings provided in the
Credit Agreement.
Reference is made to the Credit Agreement for a description of the Pledge
Agreement pursuant to which this Note has been pledged to the Administrative
Agent as security for the Obligations outstanding from time to time under the
Credit Agreement and each other Loan Document.
In addition to, but not in limitation of, the foregoing, the Maker further
agrees to pay all expenses, including reasonable attorneys' fees and legal
expenses, incurred by the holder (including the Administrative Agent as pledgee)
of this Note endeavoring to collect any amounts payable hereunder which are not
paid when due, whether by acceleration or otherwise.
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
INTERNAL LAWS OF THE STATE OF NEW YORK.
<PAGE>
THE MAKER HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY
RIGHTS IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED ON THIS
NOTE. THE MAKER ACKNOWLEDGES AND AGREES THAT IT HAS RECEIVED FULL AND SUFFICIENT
CONSIDERATION FOR THIS PROVISION AND THAT THIS PROVISION IS A MATERIAL
INDUCEMENT FOR THE PAYEE TO ACCEPT THIS NOTE.
[NAME OF MAKER]
By
Name:
Title:
Pay to the order of FLEET NATIONAL
BANK, as Administrative Agent
DUANE READE
By Duane Reade Inc., a general partner
By
Name:
Title:
By DRI I Inc., a general partner
By
Name:
Title:
<PAGE>
GRID
Intercompany Loans made by DUANE READE to [Name of Maker] and payments of
principal of such Loans.
================================================================================
Amount of Amount of Outstanding
Intercompany Principal Principal Notation
Date Loan Payment Balance Made By
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
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================================================================================
<PAGE>
ATTACHMENT 1
to Borrower
Pledge Agreement
Item A. Pledged Notes
Pledged Note Issuer Description
Item B. Pledged Shares
Common Stock
------------------------------------
Pledged Share Issuer Authorized Outstanding % of Shares
- -------------------- Shares Shares Pledged
---------- ----------- -----------
Item C. Additional Subsidiaries
<PAGE>
EXHIBIT G-2
[CONFORMED COPY]
BORROWER PLEDGE AGREEMENT
This PLEDGE AGREEMENT (as amended, supplemented, amended and restated or
otherwise modified from time to time, this "Pledge Agreement"), dated as of
September 11, 1998, is made by DUANE READE, a New York general partnership (the
"Pledgor"), in favor of FLEET NATIONAL BANK, as administrative agent (together
with any successor(s) thereto in such capacity, the "Administrative Agent") for
each of the Secured Parties.
W I T N E S S E T H:
WHEREAS, pursuant to that certain Amended and Restated Credit Agreement,
dated as of September 11, 1998, amending and restating in its entirety that
certain Credit Agreement, dated as of February 13, 1998 (as amended prior to the
Amendment Effective Date, the "Existing Credit Agreement") (as so amended and
restated or otherwise modified, and together with all amendments, supplements,
restatements and other modifications, if any, thereafter made thereto, the
"Credit Agreement"), among the Pledgor, the Parent Guarantors named therein, the
various financial institutions as are, or may from time to time become, parties
thereto (each, individually, a "Lender", and collectively, the "Lenders"), DLJ
Capital Funding, Inc., as the Syndication Agent, Fleet National Bank, as the
Administrative Agent and Credit Lyonnais New York Branch, as the Documentation
Agent, the Lenders and the Issuer have extended Commitments to make Credit
Extensions to the Pledgor;
WHEREAS, as a condition precedent to the making and maintaining of the
Credit Extensions under the Credit Agreement, the Pledgor is required to execute
and deliver this Pledge Agreement; and
WHEREAS, the Pledgor has duly authorized the execution, delivery and
performance of this Pledge Agreement;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and in order to induce the Lenders
and the Issuer to make and maintain Credit Extensions to the Pledgor pursuant to
the Credit Agreement, and to induce the Secured Parties to enter into Rate
Protection Agreement(s), the Pledgor agrees, for the benefit of each Secured
Party, as follows:
<PAGE>
ARTICLE I
DEFINITIONS
SECTION 1.1. Certain Terms. The following terms (whether or not
underscored) when used in this Pledge Agreement, including its preamble and
recitals, shall have the following meanings (such definitions to be equally
applicable to the singular and plural forms thereof):
"Administrative Agent" is defined in the preamble.
"Collateral" is defined in Section 2.1.
"Credit Agreement" is defined in the first recital.
"Distributions" means all stock dividends, liquidating dividends, shares
of stock resulting from (or in connection with the exercise of) stock splits,
reclassifications, warrants, options, non-cash dividends, mergers,
consolidations, and all other distributions (whether similar or dissimilar to
the foregoing) on or with respect to any Pledged Shares or other shares of
capital stock constituting Collateral, but shall not include Dividends.
"Dividends" means cash dividends and cash distributions with respect to
any Pledged Shares or other Pledged Property made in the ordinary course of
business and not a liquidating dividend.
"Lender" and "Lenders" are defined in the first recital.
"Pledge Agreement" is defined in the preamble.
"Pledged Note Issuer" means each Person identified in Item A of Attachment
1 hereto as the issuer of the Pledged Note identified opposite the name of such
Person.
"Pledged Notes" means all promissory notes of any Pledged Note Issuer
substantially the form of Exhibit A hereto which are delivered by the Pledgor to
the Administrative Agent as Pledged Property hereunder, as such promissory
notes, in accordance with Section 4.6, are amended, modified or supplemented
from time to time, together with any promissory note of any Pledged Note Issuer
taken in extension or renewal thereof or substitution therefor.
"Pledged Property" means all Pledged Shares, all Pledged Notes, and all
other pledged shares of capital stock or promissory notes, all other securities,
all assignments of any amounts due or to become due, all other instruments which
are now being delivered by the Pledgor to the Administrative Agent or may from
time to time hereafter be delivered by the Pledgor to the Administrative Agent
for the purpose of pledge under this Pledge Agreement or any other
<PAGE>
Loan Document, and all proceeds of any of the foregoing.
"Pledged Share Issuer" means each Person identified in Item B of
Attachment 1 hereto as the issuer of the Pledged Shares identified opposite the
name of such Person.
"Pledged Shares" means all shares of capital stock of any Pledged Share
Issuer which are delivered by the Pledgor to the Administrative Agent as Pledged
Property hereunder.
"Pledgor" is defined in the preamble.
"Securities Act" is defined in Section 6.2.
"U.C.C." means the Uniform Commercial Code, as in effect from time to time
in the State of New York.
SECTION 1.2. Credit Agreement Definitions. Unless otherwise defined herein
or the context otherwise requires, terms used in this Pledge Agreement,
including its preamble and recitals, have the meanings provided in the Credit
Agreement.
SECTION 1.3. U.C.C. Definitions. Unless otherwise defined herein or in the
Credit Agreement or the context otherwise requires, terms for which meanings are
provided in the U.C.C. are used in this Pledge Agreement, including its preamble
and recitals, with such meanings.
ARTICLE II
PLEDGE
SECTION 2.1. Grant of Security Interest. The Pledgor hereby pledges,
hypothecates, assigns, charges, mortgages, delivers, and transfers to the
Administrative Agent, for its benefit and the ratable benefit of each of the
Secured Parties, and hereby grants to the Administrative Agent, for its benefit
and the ratable benefit of the Secured Parties, a continuing security interest
in, all of the following property (the "Collateral"):
(a) all promissory notes of each Pledged Note Issuer identified in
Item A of Attachment 1 hereto;
(b) all other Pledged Notes issued from time to time;
(c) all issued and outstanding shares of capital stock of each
Pledged Share Issuer identified in Item B of Attachment 1 hereto;
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(d) all other Pledged Shares issued from time to time;
(e) all other Pledged Property, whether now or hereafter delivered
to the Administrative Agent in connection with this Pledge Agreement;
(f) all Dividends, Distributions, interest, and other payments and
rights with respect to any Pledged Property; and
(g) all proceeds of any of the foregoing.
SECTION 2.2. Security for Obligations. This Pledge Agreement secures the
payment in full in cash of all Obligations of the Pledgor now or hereafter
existing under the Credit Agreement, the Notes and each other Loan Document to
which the Pledgor is or may become a party, whether for principal, interest,
costs, fees, expenses, or otherwise.
SECTION 2.3. Delivery of Pledged Property. All certificates or instruments
representing or evidencing any Collateral, including all Pledged Shares and all
Pledged Notes, shall be delivered to and held by or on behalf of (and, in the
case of the Pledged Notes, endorsed to the order of) the Administrative Agent
pursuant hereto, shall be in suitable form for transfer by delivery, and shall
be accompanied by all necessary instruments of transfer or assignment, duly
executed in blank.
SECTION 2.4. Dividends on Pledged Shares and Payments on Pledged Notes. In
the event that any Dividend is to be paid on any Pledged Share or any payment of
principal or interest is to be made on any Pledged Note at a time when no
Default of the nature referred to in Section 8.1.9 of the Credit Agreement or
Event of Default has occurred and is continuing or would result therefrom, such
Dividend or payment may be paid directly to the Pledgor. If any such Default or
Event of Default has occurred and is continuing, then any such Dividend or
payment shall be paid directly to the Administrative Agent.
SECTION 2.5. Continuing Security Interest; Transfer of Note. This Pledge
Agreement shall create a continuing security interest in the Collateral and
shall
(a) remain in full force and effect until payment in full in cash of
all Obligations, the termination or expiration of all Letters of Credit,
the termination of all Rate Protection Agreements and the termination of
all Commitments,
(b) be binding upon the Pledgor and its successors, transferees and
assigns, and
(c) inure, together with the rights and remedies of the
Administrative Agent hereunder, to the benefit of the Administrative Agent
and each other Secured Party.
Without limiting the foregoing clause (c), any Lender may assign or otherwise
transfer (in
<PAGE>
whole or in part) any Note or Loan held by it to any other Person or entity, and
such other Person or entity shall thereupon become vested with all the rights
and benefits in respect thereof granted to such Lender under any Loan Document
(including this Pledge Agreement) or otherwise, subject, however, to any
contrary provisions in such assignment or transfer, and to the provisions of
Section 11.11 and Article X of the Credit Agreement. Upon (i) the sale, transfer
or other disposition of Collateral in accordance with the Credit Agreement or
(ii) the payment in full in cash of all Obligations, the termination or
expiration of all Letters of Credit, the termination of all Rate Protection
Agreements and the termination of all Commitments, the security interests
granted herein shall automatically terminate with respect to (x) such Collateral
(in the case of clause (i)) or (y) all Collateral (in the case of clause (ii)).
Upon any such sale, transfer, disposition or termination, the Administrative
Agent will, at the Pledgor's sole expense, deliver to the Pledgor, without any
representations, warranties or recourse of any kind whatsoever, all certificates
and instruments representing or evidencing all Pledged Shares and all Pledged
Notes, together with all other Collateral held by the Administrative Agent
hereunder, and execute and deliver to the Pledgor such documents as the Pledgor
shall reasonably request to evidence such termination.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.1. Representations and Warranties, etc. The Pledgor represents
and warrants to each Secured Party, as at the date of each pledge and delivery
hereunder (including each pledge and delivery of Pledged Shares and each pledge
and delivery of a Pledged Note) by the Pledgor to the Administrative Agent of
any Collateral, as set forth in this Article III.
SECTION 3.2. Ownership, No Liens, etc. The Pledgor is the legal and
beneficial owner of, and has good and marketable title to (and has full right
and authority to pledge and assign) such Collateral, free and clear of all
liens, security interests, options, or other charges or encumbrances, except any
lien or security interest granted pursuant hereto in favor of the Administrative
Agent.
SECTION 3.3. Valid Security Interest. The delivery of such Collateral to
the Administrative Agent is effective to create a valid, perfected, first
priority security interest in such Collateral and all proceeds thereof, securing
the Obligations. No filing or other action will be necessary to perfect or
protect such security interest.
SECTION 3.4. As to Pledged Shares. In the case of any Pledged Shares
constituting such Collateral, all of such Pledged Shares are duly authorized and
validly issued, fully paid, and non-assessable, and constitute all of the issued
and outstanding shares of capital stock of each Pledged Share Issuer. The
Pledgor has no Subsidiaries other than the Pledged Share Issuers, except as set
forth in Item C of Attachment 1.
<PAGE>
SECTION 3.5. As to Pledged Notes. In the case of each Pledged Note, all of
such Pledged Notes have been duly authorized, executed, endorsed, issued and
delivered, and are the legal, valid and binding obligation of the issuers
thereof, and are not in default.
SECTION 3.6. Authorization, Approval, etc. No authorization, approval, or
other action by, and no notice to or filing with, any governmental authority,
regulatory body or any other Person is required either
(a) for the pledge by the Pledgor of any Collateral pursuant to this
Pledge Agreement or for the execution, delivery, and performance of this
Pledge Agreement by the Pledgor, or
(b) for the exercise by the Administrative Agent of the voting or
other rights provided for in this Pledge Agreement, or, except with
respect to any Pledged Shares, as may be required in connection with a
disposition of such Pledged Shares by laws affecting the offering and sale
of securities generally, the remedies in respect of the Collateral
pursuant to this Pledge Agreement.
SECTION 3.7. Compliance with Laws. The Pledgor is in compliance with the
requirements of all applicable laws (including the provisions of the Fair Labor
Standards Act), rules, regulations and orders of every governmental authority,
the non-compliance with which could reasonably be expected to have a Material
Adverse Effect or which could reasonably be expected to materially adversely
affect the value of the Collateral or the worth of the Collateral as collateral
security.
ARTICLE IV
COVENANTS
SECTION 4.1. Certain Covenants. The Pledgor covenants and agrees that, so
long as any portion of the Secured Obligations shall remain unpaid, any Letters
of Credit shall be outstanding, any Rate Protection Agreement shall remain in
full force and effect or any Secured Party shall have any outstanding
Commitment, the Pledgor will, unless the Required Lenders shall otherwise
consent in writing, perform, comply with and be bound by the obligations set
forth in this Article IV.
SECTION 4.2. Protect Collateral; Further Assurances, etc. The Pledgor
agrees and covenants that it will not sell, assign, transfer, pledge, or
encumber in any other manner the Collateral (except in favor of the
Administrative Agent hereunder). The Pledgor will warrant and defend the right
and title herein granted unto the Administrative Agent in and to the Collateral
(and all right, title, and interest represented by the Collateral) against the
claims and
<PAGE>
demands of all Persons whomsoever. The Pledgor agrees that at any time, and from
time to time, at the expense of the Pledgor, the Pledgor will promptly execute
and deliver all further instruments, and take all further action, that may be
necessary or desirable, or that the Administrative Agent may reasonably request,
in order to perfect and protect any security interest granted or purported to be
granted hereby or to enable the Administrative Agent to exercise and enforce its
rights and remedies hereunder with respect to any Collateral.
SECTION 4.3. Stock Powers, etc. The Pledgor agrees that all Pledged Shares
(and all other shares of capital stock constituting Collateral) delivered by the
Pledgor pursuant to this Pledge Agreement will be accompanied by duly executed
undated blank stock powers, or other equivalent instruments of transfer
acceptable to the Administrative Agent. The Pledgor will, from time to time upon
the request of the Administrative Agent, promptly deliver to the Administrative
Agent such stock powers, instruments, and similar documents, satisfactory in
form and substance to the Administrative Agent, with respect to the Collateral
as the Administrative Agent may reasonably request and will, from time to time
upon the request of the Administrative Agent after the occurrence of any Event
of Default, promptly transfer any Pledged Shares or other shares of common stock
constituting Collateral into the name of any nominee designated by the
Administrative Agent.
SECTION 4.4. Continuous Pledge. The Pledgor will, at all times, keep
pledged to the Administrative Agent pursuant hereto all Pledged Shares and all
other shares of capital stock constituting Collateral, all Dividends and
Distributions with respect thereto, all Pledged Notes, all interest, principal
and other proceeds received by the Administrative Agent with respect to the
Pledged Notes, and all other Collateral and other securities, instruments,
proceeds, and rights from time to time received by or distributable to the
Pledgor in respect of any Collateral and will not permit any Pledged Share
Issuer to issue any capital stock which shall not have been immediately duly
pledged hereunder on a first priority perfected basis.
SECTION 4.5. Voting Rights; Dividends, etc. The Pledgor agrees:
(a) after any Default of the nature referred to in Section 8.1.9 of
the Credit Agreement or Event of Default shall have occurred and be
continuing, promptly upon receipt of notice thereof by the Pledgor and
without any request therefor by the Administrative Agent, to deliver
(properly endorsed where required hereby or requested by the
Administrative Agent) to the Administrative Agent all Dividends,
Distributions, all interest, all principal, all other cash payments, and
all proceeds of the Collateral, all of which shall be held by the
Administrative Agent as additional Collateral for use in accordance with
Section 6.4; and
(b) after any Event of Default shall have occurred and be continuing
and the Administrative Agent has notified the Pledgor of the
Administrative Agent's intention to exercise its voting power under this
Section 4.5(b)
(i) the Administrative Agent may exercise (to the exclusion of
the
<PAGE>
Pledgor) the voting power and all other incidental rights of
ownership with respect to any Pledged Shares or other shares of
capital stock constituting Collateral and the Pledgor hereby grants
the Administrative Agent an irrevocable proxy, exercisable under
such circumstances, to vote the Pledged Shares and such other
Collateral; and
(ii) promptly to deliver to the Administrative Agent such
additional proxies and other documents as may be necessary to allow
the Administrative Agent to exercise such voting power.
All Dividends, Distributions, interest, principal, cash payments, and proceeds
which may at any time and from time to time be held by the Pledgor but which the
Pledgor is then obligated to deliver to the Administrative Agent, shall, until
delivery to the Administrative Agent, be held by the Pledgor separate and apart
from its other property in trust for the Administrative Agent. The
Administrative Agent agrees that unless an Event of Default shall have occurred
and be continuing and the Administrative Agent shall have given the notice
referred to in Section 4.5(b), the Pledgor shall have the exclusive voting power
with respect to any shares of capital stock (including any of the Pledged
Shares) constituting Collateral and the Administrative Agent shall, upon the
written request of the Pledgor, promptly deliver such proxies and other
documents, if any, as shall be reasonably requested by the Pledgor which are
necessary to allow the Pledgor to exercise voting power with respect to any such
share of capital stock (including any of the Pledged Shares) constituting
Collateral; provided, however, that no vote shall be cast, or consent, waiver,
or ratification given, or action taken by the Pledgor that would impair any
Collateral or be inconsistent with or violate any provision of the Credit
Agreement or any other Loan Document (including this Pledge Agreement).
SECTION 4.6. Additional Undertakings. The Pledgor will not, without the
prior written consent of the Administrative Agent:
(a) enter into any agreement amending, supplementing, or waiving any
provision of any Pledged Note (including any underlying instrument
pursuant to which such Pledged Note is issued) or compromising or
releasing or extending the time for payment of any obligation of the maker
thereof; or
(b) take or omit to take any action the taking or the omission of
which would result in any impairment or alteration of any obligation of
the maker of any Pledged Note or other instrument constituting Collateral.
<PAGE>
ARTICLE V
THE ADMINISTRATIVE AGENT
SECTION 5.1. Administrative Agent Appointed Attorney-in-Fact. The Pledgor
hereby irrevocably appoints the Administrative Agent the Pledgor's
attorney-in-fact, with full authority in the place and stead of the Pledgor and
in the name of the Pledgor or otherwise, from time to time in the Administrative
Agent's discretion, to take any action and to execute any instrument which the
Administrative Agent may deem necessary or advisable to accomplish the purposes
of this Pledge Agreement, including after the occurrence and continuance of a
Default of the nature referred to in Section 8.1.9 of the Credit Agreement or an
Event of Default:
(a) to ask, demand, collect, sue for, recover, compromise, receive
and give acquittance and receipts for moneys due and to become due under
or in respect of any of the Collateral;
(b) to receive, endorse, and collect any drafts or other
instruments, documents and chattel paper, in connection with clause (a)
above; and
(c) to file any claims or take any action or institute any
proceedings which the Administrative Agent may deem necessary or desirable
for the collection of any of the Collateral or otherwise to enforce the
rights of the Administrative Agent with respect to any of the Collateral.
The Pledgor hereby acknowledges, consents and agrees that the power of attorney
granted pursuant to this Section is irrevocable and coupled with an interest.
SECTION 5.2. Administrative Agent May Perform. If the Pledgor fails to
perform any agreement contained herein, the Administrative Agent may itself
perform, or cause performance of, such agreement, and the expenses of the
Administrative Agent incurred in connection therewith shall be payable by the
Pledgor pursuant to Section 6.4.
SECTION 5.3. Administrative Agent Has No Duty. The powers conferred on the
Administrative Agent hereunder are solely to protect its interest (on behalf of
the Secured Parties) in the Collateral and shall not impose any duty on it to
exercise any such powers. Except for reasonable care of any Collateral in its
possession and the accounting for moneys actually received by it hereunder, the
Administrative Agent shall have no duty as to any Collateral or responsibility
for
(a) ascertaining or taking action with respect to calls,
conversions, exchanges, maturities, tenders or other matters relative to
any Pledged Property, whether or not
<PAGE>
the Administrative Agent has or is deemed to have knowledge of such
matters, or
(b) taking any necessary steps to preserve rights against prior
parties or any other rights pertaining to any Collateral.
SECTION 5.4. Reasonable Care. The Administrative Agent is required to
exercise reasonable care in the custody and preservation of any of the
Collateral in its possession; provided, however, the Administrative Agent shall
be deemed to have exercised reasonable care in the custody and preservation of
any of the Collateral, if it takes such action for that purpose as the Pledgor
reasonably requests in writing at times other than upon the occurrence and
during the continuance of any Event of Default, but failure of the
Administrative Agent to comply with any such request at any time shall not in
itself be deemed a failure to exercise reasonable care.
ARTICLE VI
REMEDIES
SECTION 6.1. Certain Remedies. If any Event of Default shall have occurred
and be continuing:
(a) The Administrative Agent may exercise in respect of the
Collateral, in addition to other rights and remedies provided for herein
or otherwise available to it, all the rights and remedies of a secured
party on default under the U.C.C. (whether or not the U.C.C. applies to
the affected Collateral) and also may, without notice except as specified
below, sell the Collateral or any part thereof in one or more parcels at
public or private sale, at any of the Administrative Agent's offices or
elsewhere, for cash, on credit or for future delivery, and upon such other
terms as the Administrative Agent may deem commercially reasonable. The
Pledgor agrees that, to the extent notice of sale shall be required by
law, at least ten days' prior notice to the Pledgor of the time and place
of any public sale or the time after which any private sale is to be made
shall constitute reasonable notification. The Administrative Agent shall
not be obligated to make any sale of Collateral regardless of notice of
sale having been given. The Administrative Agent may adjourn any public or
private sale from time to time by announcement at the time and place fixed
therefor, and such sale may, without further notice, be made at the time
and place to which it was so adjourned.
(b) The Administrative Agent may
(i) transfer all or any part of the Collateral into the name
of the Administrative Agent or its nominee, with or without
disclosing that such Collateral is subject to the lien and security
interest hereunder,
<PAGE>
(ii) notify the parties obligated on any of the Collateral to
make payment to the Administrative Agent of any amount due or to
become due thereunder,
(iii) enforce collection of any of the Collateral by suit or
otherwise, and surrender, release or exchange all or any part
thereof, or compromise or extend or renew for any period (whether or
not longer than the original period) any obligations of any nature
of any party with respect thereto,
(iv) endorse any checks, drafts, or other writings in the
Pledgor's name to allow collection of the Collateral,
(v) take control of any proceeds of the Collateral, and
(vi) execute (in the name, place and stead of the Pledgor)
endorsements, assignments, stock powers and other instruments of
conveyance or transfer with respect to all or any of the Collateral.
SECTION 6.2. Securities Laws. If the Administrative Agent shall determine
to exercise its right to sell all or any of the Collateral pursuant to Section
6.1, the Pledgor agrees that, upon request of the Administrative Agent, the
Pledgor will, at its own expense:
(a) execute and deliver, and cause each issuer of the Collateral
contemplated to be sold and the directors and officers thereof to execute
and deliver, all such instruments and documents, and do or cause to be
done all such other acts and things, as may be necessary or, in the
opinion of the Administrative Agent, advisable to register such Collateral
under the provisions of the Securities Act of 1933, as from time to time
amended (the "Securities Act"), and to cause the registration statement
relating thereto to become effective and to remain effective for such
period as prospectuses are required by law to be furnished, and to make
all amendments and supplements thereto and to the related prospectus
which, in the opinion of the Administrative Agent, are necessary or
advisable, all in conformity with the requirements of the Securities Act
and the rules and regulations of the Securities and Exchange Commission
applicable thereto;
(b) use its best efforts to qualify the Collateral under the state
securities or "Blue Sky" laws and to obtain all necessary governmental
approvals for the sale of the Collateral, as requested by the
Administrative Agent;
(c) cause each such issuer to make available to its security
holders, as soon as practicable, an earnings statement that will satisfy
the provisions of Section 11(a) of the Securities Act; and
(d) do or cause to be done all such other acts and things as may be
necessary to
<PAGE>
make such sale of the Collateral or any part thereof valid and binding and
in compliance with applicable law.
The Pledgor further acknowledges the impossibility of ascertaining the amount of
damages that would be suffered by the Administrative Agent or the Secured
Parties by reason of the failure by the Pledgor to perform any of the covenants
contained in this Section and, consequently, agrees that, if the Pledgor shall
fail to perform any of such covenants, it shall pay, as liquidated damages and
not as a penalty, an amount equal to the value (as determined by the
Administrative Agent) of the Collateral on the date the Administrative Agent
shall demand compliance with this Section.
SECTION 6.3. Compliance with Restrictions. The Pledgor agrees that in any
sale of any of the Collateral whenever an Event of Default shall have occurred
and be continuing, the Administrative Agent is hereby authorized to comply with
any limitation or restriction in connection with such sale as it may be advised
by counsel is necessary in order to avoid any violation of applicable law
(including compliance with such procedures as may restrict the number of
prospective bidders and purchasers, require that such prospective bidders and
purchasers have certain qualifications, and restrict such prospective bidders
and purchasers to persons who will represent and agree that they are purchasing
for their own account for investment and not with a view to the distribution or
resale of such Collateral), or in order to obtain any required approval of the
sale or of the purchaser by any governmental regulatory authority or official,
and the Pledgor further agrees that such compliance shall not result in such
sale being considered or deemed not to have been made in a commercially
reasonable manner, nor shall the Administrative Agent be liable nor accountable
to the Pledgor for any discount allowed by the reason of the fact that such
Collateral is sold in compliance with any such limitation or restriction.
SECTION 6.4. Application of Proceeds. All cash proceeds received by the
Administrative Agent in respect of any sale of, collection from, or other
realization upon, all or any part of the Collateral shall be applied by the
Administrative Agent against, all or any part of the Obligations as follows:
(a) first, to the payment of any amounts payable to the
Administrative Agent pursuant to Section 11.3 of the Credit Agreement and
Section 6.5;
(b) second, to the equal and ratable payment of Obligations, in
accordance with each Secured Party's Obligations owing to it under or
pursuant to the Credit Agreement or any other Loan Document, or under or
pursuant to any Hedging Obligation included in the Obligations as to each
Secured Party, applied
(i) first to fees and expense reimbursements then due to such
Secured Party,
<PAGE>
(ii) then to interest due to such Secured Party,
(iii) then to pay or prepay principal of the Loans owing to,
or to reduce the "credit exposure" of, such Secured Party under such
Hedging Obligation, as the case may be, and
(iv) then to pay the remaining outstanding Obligations and
cash collateralize all Letter of Credit Outstandings;
(c) third, without duplication of any amounts paid pursuant to
clause (b) above, to the Indemnified Parties to the extent of any amounts
owing pursuant to Section 11.4 of the Credit Agreement; and
(d) fourth, to be held as additional collateral security until the
payment in full in cash of all of the Obligations, the termination or
expiration of all Letters of Credit, the termination of all Rate
Protection Agreements and the termination of all Commitments, after which
such remaining cash proceeds shall be paid over to the Pledgor or to
whomsoever may be lawfully entitled to receive such surplus.
For purposes of this Pledge Agreement, the "credit exposure" at any time of any
Secured Party with respect to a Hedging Obligation to which such Secured Party
is a party shall be determined at such time in accordance with the customary
methods of calculating credit exposure under similar arrangements by the
counterparty to such arrangements, taking into account potential interest rate
movements and the respective termination provisions and notional principal
amount and term of such Hedging Obligation.
SECTION 6.5. Indemnity and Expenses. The Pledgor hereby indemnifies and
holds harmless the Administrative Agent from and against any and all claims,
losses, and liabilities arising out of or resulting from this Pledge Agreement
(including enforcement of this Pledge Agreement), except claims, losses, or
liabilities resulting from the Administrative Agent's gross negligence or wilful
misconduct. Upon demand, the Pledgor will pay to the Administrative Agent the
amount of any and all reasonable expenses, including the reasonable fees and
disbursements of its counsel and of any experts and agents, which the
Administrative Agent may incur in connection with:
(a) the administration of this Pledge Agreement, the Credit
Agreement and each other Loan Document;
(b) the custody, preservation, use, or operation of, or the sale of,
collection from, or other realization upon, any of the Collateral;
(c) the exercise or enforcement of any of the rights of the
Administrative Agent hereunder; or
<PAGE>
(d) the failure by the Pledgor to perform or observe any of the
provisions hereof.
ARTICLE VII
MISCELLANEOUS PROVISIONS
SECTION 7.1. Loan Document. This Pledge Agreement is a Loan Document
executed pursuant to the Credit Agreement and shall (unless otherwise expressly
indicated herein) be construed, administered and applied in accordance with the
terms and provisions thereof.
SECTION 7.2. Amendments, etc. No amendment to or waiver of any provision
of this Pledge Agreement nor consent to any departure by the Pledgor herefrom
shall in any event be effective unless the same shall be in writing and signed
by the Administrative Agent (on behalf of the Lenders or the Required Lenders,
as the case may be) and the Pledgor in the case of an amendment, and then such
waiver or consent shall be effective only in the specific instance and for the
specific purpose for which it is given.
SECTION 7.3. Protection of Collateral. The Administrative Agent may from
time to time, at its option, perform any act which the Pledgor agrees hereunder
to perform and which the Pledgor shall fail to perform after being requested in
writing so to perform (it being understood that no such request need be given
after the occurrence and during the continuance of an Event of Default) and the
Administrative Agent may from time to time take any other action which the
Administrative Agent reasonably deems necessary for the maintenance,
preservation or protection of any of the Collateral or of its security interest
therein.
SECTION 7.4. Addresses for Notices. All notices and other communications
provided for hereunder shall be in writing (including telegraphic communication)
and mailed or telecopied or delivered to either party hereto, addressed to such
party at such party's address specified in the Credit Agreement. All such
notices and other communications, when mailed and properly addressed with
postage prepaid or if properly addressed and sent by pre-paid courier service,
shall be deemed given when received; any such notice or communication, if
transmitted by telecopier, shall be deemed given when transmitted and
electronically confirmed.
SECTION 7.5. Section Captions. Section captions used in this Pledge
Agreement are for convenience of reference only, and shall not affect the
construction of this Pledge Agreement.
SECTION 7.6. Severability. Wherever possible each provision of this Pledge
<PAGE>
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Pledge Agreement shall be
prohibited by or invalid under such law, such provision shall be ineffective to
the extent of such prohibition or invalidity, without invalidating the remainder
of such provision or the remaining provisions of this Pledge Agreement.
SECTION 7.7. Counterparts. This Pledge Agreement may be executed by the
parties hereto in several counterparts, each of which shall be deemed to be an
original and all of which shall constitute together but one and the same
agreement.
SECTION 7.8. Governing Law, Entire Agreement, etc. THIS PLEDGE AGREEMENT
SHALL BE DEEMED TO BE A CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF
THE STATE OF NEW YORK, EXCEPT TO THE EXTENT THAT THE VALIDITY OR PERFECTION OF
THE SECURITY INTEREST HEREUNDER, OR REMEDIES HEREUNDER, IN RESPECT OF ANY
PARTICULAR COLLATERAL ARE GOVERNED BY THE LAWS OF A JURISDICTION OTHER THAN THE
STATE OF NEW YORK. THIS PLEDGE AGREEMENT AND THE OTHER LOAN DOCUMENTS CONSTITUTE
THE ENTIRE UNDERSTANDING AMONG THE PARTIES HERETO WITH RESPECT TO THE SUBJECT
MATTER HEREOF AND SUPERSEDE ANY PRIOR AGREEMENTS, WRITTEN OR ORAL, WITH RESPECT
THERETO.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Pledge Agreement
to be duly executed and delivered by their respective officers thereunto duly
authorized as of the day and year first above written.
DUANE READE
By Duane Reade Inc., a general partner
By /s/ William J. Tennant
-----------------------------------
Name: William J. Tennant
Title: Senior Vice President
By DRI I Inc., a general partner
By /s/ William J. Tennant
-----------------------------------
Name: William J. Tennant
Title: Senior Vice President
FLEET NATIONAL BANK,
as Administrative Agent
By /s/ A. Glen Kewley
-----------------------------------
Name: A. Glen Kewley
Title: A.V.P.
<PAGE>
EXHIBIT A
to Borrower
Pledge Agreement
PROMISSORY NOTE
$_______________ ________ __, ____
FOR VALUE RECEIVED, the undersigned, ______________, a _______________
corporation (the "Maker"), promises to pay to the order of DUANE READE, a New
York general partnership (the "Payee"), in equal ________ installments,
commencing __________ __, ____ to and including __________ __, ____, the
principal sum ________ of DOLLARS ($________), representing the aggregate
principal amount of an intercompany loan made by the Payee to the Maker.
The unpaid principal amount of this promissory note (this "Note") from
time to time outstanding shall bear interest at a rate of interest equal to
____________, which the Maker represents to be a lawful and commercially
reasonable rate, payable __________, and all payments of principal of and
interest on this Note shall be payable in lawful currency of the United States
of America. All such payments shall be made by the Maker to an account
established by the Payee at _______________ and shall be recorded on the grid
attached hereto by the holder hereof (including the Administrative Agent as
pledgee). Upon notice from the Administrative Agent (hereinafter defined) that a
Default (as defined in the Amended and Restated Credit Agreement, dated as of
September 11, 1998 amending and restating in its entirety that certain Credit
Agreement, dated as of February 13, 1998 (as amended prior to the Amendment
Effective Date) (as so amended and restated and otherwise modified, and together
with all amendments supplements, restatements and other modifications, if any,
thereafter made thereto, or otherwise modified from time to time, the "Credit
Agreement"), among the Payee, the Parent Guarantors named therein, various
financial institutions as are, or may from time to time become, parties thereto
(each individually, a "Lender", and collectively, the "Lenders"), DLJ Capital
Funding, Inc., as Syndication Agent, Fleet National Bank, as the administrative
agent (in such capacity, the "Administrative Agent") and Credit Lyonnais New
York Branch, as the documentation agent (in such capacity, the "Documentation
Agent") as of the nature referred to in Section 8.1.9 of the Credit Agreement or
an Event of Default (as defined in the Credit Agreement) has occurred and is
continuing under the Credit Agreement, the Maker shall make such payments, in
same day funds, to such other account as the Administrative Agent shall direct
in such notice.
This Note is one of the Pledged Notes referred to in the Pledge Agreement.
Upon the occurrence and continuance of an Event of Default under the Credit
Agreement, and notice thereof by the Administrative Agent to the Maker, the
Administrative Agent shall have all rights of the Payee to collect and
accelerate, and enforce all rights with respect to, the
<PAGE>
Indebtedness evidenced by this Note. Unless otherwise defined herein or the
context otherwise requires, terms used herein have the meanings provided in the
Credit Agreement.
Reference is made to the Credit Agreement for a description of the Pledge
Agreement pursuant to which this Note has been pledged to the Administrative
Agent as security for the Obligations outstanding from time to time under the
Credit Agreement and each other Loan Document.
In addition to, but not in limitation of, the foregoing, the Maker further
agrees to pay all expenses, including reasonable attorneys' fees and legal
expenses, incurred by the holder (including the Administrative Agent as pledgee)
of this Note endeavoring to collect any amounts payable hereunder which are not
paid when due, whether by acceleration or otherwise.
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
INTERNAL LAWS OF THE STATE OF NEW YORK.
<PAGE>
THE MAKER HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY
RIGHTS IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED ON THIS
NOTE. THE MAKER ACKNOWLEDGES AND AGREES THAT IT HAS RECEIVED FULL AND SUFFICIENT
CONSIDERATION FOR THIS PROVISION AND THAT THIS PROVISION IS A MATERIAL
INDUCEMENT FOR THE PAYEE TO ACCEPT THIS NOTE.
[NAME OF MAKER]
By
Name:
Title:
Pay to the order of FLEET NATIONAL
BANK, as Administrative Agent
DUANE READE
By Duane Reade Inc., a general partner
By
Name:
Title:
By DRI I Inc., a general partner
By
Name:
Title:
<PAGE>
GRID
Intercompany Loans made by DUANE READE to [Name of Maker] and payments of
principal of such Loans.
================================================================================
Amount of Amount of Outstanding
Intercompany Principal Principal Notation
Date Loan Payment Balance Made By
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<PAGE>
ATTACHMENT 1
to Borrower
Pledge Agreement
Item A. Pledged Notes
Pledged Note Issuer Description
Item B. Pledged Shares
Common Stock
------------------------------------
Pledged Share Issuer Authorized Outstanding % of Shares
- -------------------- Shares Shares Pledged
---------- ----------- -----------
Item C. Additional Subsidiaries
<PAGE>
EXHIBIT G-3
to Second Amended and Restated
Credit Agreement
SUBSIDIARY PLEDGE AGREEMENT
This SUBSIDIARY PLEDGE AGREEMENT (as amended, supplemented, amended and
restated or otherwise modified from time to time, this "Pledge Agreement"),
dated as of __________ __, ____, is made by each Subsidiary (as defined below)
of the Borrower (as defined below) a signatory hereto, and each other Person
which may from time to time hereafter become a party hereto pursuant to Section
7.5 (each, individually, an "Additional Pledgor", and, collectively, the
"Additional Pledgors", and, together with each such Subsidiary, each,
individually, a "Pledgor", and, collectively, the "Pledgors"), in favor of FLEET
NATIONAL BANK, as administrative agent (together with its successor(s) thereto,
in such capacity, the "Administrative Agent") for each of the Secured Parties.
W I T N E S S E T H:
WHEREAS, pursuant to that certain Second Amended and Restated Credit
Agreement, dated as of March 17, 1999, amending and restating in its entirety
that certain Amended and Restated Credit Agreement, dated as of September 11,
1998 (as amended prior to the Amendment Effective Date, the "Existing Credit
Agreement") (as so amended and restated or otherwise modified, and together with
all amendments, supplements, restatements and other modifications, if any,
thereafter made thereto, the "Credit Agreement"), among Duane Reade, a New York
general partnership (the "Borrower"), each of the Parent Guarantors named
therein, the various financial institutions as are, or may from time to time
become, parties thereto (each, individually, a "Lender", and collectively, the
"Lenders"), DLJ Capital Funding, Inc., as the Syndication Agent, Fleet National
Bank, as the Administrative Agent and Credit Lyonnais New York Branch, as the
Documentation Agent, the Lenders and the Issuer have extended Commitments to
make Credit Extensions to the Borrower;
WHEREAS, as a condition precedent to the making and maintaining of the
Credit Extensions under the Credit Agreement, each Pledgor is required to
execute and deliver this Pledge Agreement;
WHEREAS, each Pledgor has duly authorized the execution, delivery and
performance of this Pledge Agreement; and
WHEREAS, it is in the best interests of each Pledgor to execute this
Pledge Agreement inasmuch as such Pledgor will derive substantial direct and
indirect benefits from the Credit Extensions made from time to time to the
Borrower by the Lenders and the Issuer pursuant to the Credit Agreement;
-1-
<PAGE>
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and in order to induce the Lenders
and the Issuer to make and maintain Credit Extensions to the Borrower pursuant
to the Credit Agreement, and to induce Secured Parties to enter into Rate
Protection Agreement(s), each Pledgor agrees, for the benefit of each Secured
Party, as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. Certain Terms. The following terms (whether or not
underscored) when used in this Pledge Agreement, including its preamble and
recitals, shall have the following meanings (such definitions to be equally
applicable to the singular and plural forms thereof):
"Additional Pledgor" and "Additional Pledgors" are defined in the
preamble.
"Administrative Agent" is defined in the preamble.
"Borrower" is defined in the first recital.
"Collateral" is defined in Section 2.1.
"Credit Agreement" is defined in the first recital.
"Distributions" means all stock dividends, liquidating dividends, shares
of stock resulting from (or in connection with the exercise of) stock splits,
reclassifications, warrants, options, non-cash dividends, mergers,
consolidations, and all other distributions (whether similar or dissimilar to
the foregoing) on or with respect to any Pledged Shares or other shares of
capital stock constituting Collateral, but shall not include Dividends.
"Dividends" means cash dividends and cash distributions with respect to
any Pledged Shares or other Pledged Property made in the ordinary course of
business and not a liquidating dividend.
"Lender" and "Lenders" are defined in the first recital.
"Pledge Agreement" is defined in the preamble.
"Pledged Note Issuer" means each Person identified in Item A of Attachment
1 hereto as the issuer of the Pledged Note identified opposite the name of such
Person.
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<PAGE>
"Pledged Notes" means all promissory notes of any Pledged Note Issuer in
substantially the form of Exhibit A hereto which are delivered by any Pledgor to
the Administrative Agent as Pledged Property hereunder, as such promissory
notes, in accordance with Section 4.1.5, are amended, modified or supplemented
from time to time, together with any promissory note of any Pledged Note Issuer
taken in extension or renewal thereof or substitution therefor.
"Pledged Property" means all Pledged Shares, all Pledged Notes, and all
other pledged shares of capital stock or promissory notes, all other securities,
all assignments of any amounts due or to become due, all other instruments which
are now being delivered by any Pledgor to the Administrative Agent or may from
time to time hereafter be delivered by such Pledgor to the Administrative Agent
for the purpose of pledge under this Pledge Agreement or any other Loan
Document, and all proceeds of any of the foregoing.
"Pledged Share Issuer" means each Person identified in Item B of
Attachment 1 hereto as the issuer of the Pledged Shares identified opposite the
name of such Person.
"Pledged Shares" means all shares of capital stock of any Pledged Share
Issuer which are delivered by any Pledgor to the Administrative Agent as Pledged
Property hereunder.
"Pledgor" and "Pledgors" are defined in the preamble.
"Secured Obligations" is defined in Section 2.2.
"Securities Act" is defined in Section 6.2.
"U.C.C." means the Uniform Commercial Code, as in effect from time to time
in the State of New York.
SECTION 1.2. Credit Agreement Definitions. Unless otherwise defined herein
or the context otherwise requires, terms used in this Pledge Agreement,
including its preamble and recitals, have the meanings provided in the Credit
Agreement.
SECTION 1.3. U.C.C. Definitions. Unless otherwise defined herein or in the
Credit Agreement or the context otherwise requires, terms for which meanings are
provided in the U.C.C. are used in this Pledge Agreement, including its preamble
and recitals, with such meanings.
ARTICLE II
PLEDGE
-3-
<PAGE>
SECTION 2.1. Grant of Security Interest. Each Pledgor hereby pledges,
hypothecates, assigns, charges, mortgages, delivers, and transfers to the
Administrative Agent, for its benefit and the ratable benefit of each of the
Secured Parties, and hereby grants to the Administrative Agent, for its benefit
and the ratable benefit of the Secured Parties, a continuing security interest
in, all of the following property of such Pledgor (the "Collateral"):
(a) all promissory notes of each Pledged Note Issuer identified in
Item A of Attachment 1 hereto;
(b) all other Pledged Notes issued from time to time;
(c) all issued and outstanding shares of capital stock of each
Pledged Share Issuer identified in Item B of Attachment 1 hereto;
(d) all other Pledged Shares issued from time to time;
(e) all other Pledged Property, whether now or hereafter delivered
to the Administrative Agent in connection with this Pledge Agreement;
(f) all Dividends, Distributions, interest, and other payments and
rights with respect to any Pledged Property; and
(g) all proceeds of any of the foregoing.
SECTION 2.2. Security for Obligations. This Pledge Agreement secures the
payment in full in cash of all Obligations of the Borrower now or hereafter
existing under the Credit Agreement, the Notes and each other Loan Document to
which the Borrower is or may become a party, whether for principal, interest,
costs, fees, expenses, or otherwise, and all obligations of each Pledgor and
each other Obligor whether now or hereafter existing under this Pledge Agreement
and each other Loan Document to which such Pledgor or such other Obligor is or
may become a party (all such obligations of the Borrower, such Pledgor and such
other Obligor being the "Secured Obligations").
SECTION 2.3. Delivery of Pledged Property. All certificates or instruments
representing or evidencing any Collateral, including all Pledged Shares and all
Pledged Notes, shall be delivered to and held by or on behalf of (and, in the
case of the Pledged Notes, endorsed to the order of) the Administrative Agent
pursuant hereto, shall be in suitable form for transfer by delivery, and shall
be accompanied by all necessary instruments of transfer or assignment, duly
executed in blank.
SECTION 2.4. Dividends on Pledged Shares and Payments on Pledged Notes. In
the event that any Dividend is to be paid on any Pledged Share or any payment of
principal or interest is to be made on any Pledged Note at a time when no
Default of the nature referred to
-4-
<PAGE>
in Section 8.1.9 of the Credit Agreement or Event of Default has occurred and is
continuing or would result therefrom, such Dividend or payment may be paid
directly to the applicable Pledgor. If any such Default or Event of Default has
occurred and is continuing, then any such Dividend or payment shall be paid
directly to the Administrative Agent.
SECTION 2.5. Continuing Security Interest; Transfer of Note. This Pledge
Agreement shall create a continuing security interest in the Collateral and
shall
(a) remain in full force and effect until payment in full in cash of
all Secured Obligations, the termination or expiration of all Letters of
Credit, the termination of all Rate Protection Agreements and the
termination of all Commitments,
(b) be binding upon each Pledgor and its successors, transferees and
assigns, and
(c) inure, together with the rights and remedies of the
Administrative Agent hereunder, to the benefit of the Administrative Agent
and each other Secured Party.
Without limiting the foregoing clause (c), any Lender may assign or otherwise
transfer (in whole or in part) any Note or Loan held by it to any other Person
or entity, and such other Person or entity shall thereupon become vested with
all the rights and benefits in respect thereof granted to such Lender under any
Loan Document (including this Pledge Agreement) or otherwise, subject, however,
to any contrary provisions in such assignment or transfer, and to the provisions
of Section 11.11 and Article X of the Credit Agreement. Upon (i) the sale,
transfer or other disposition of Collateral in accordance with the Credit
Agreement or (ii) the payment in full in cash of all Secured Obligations, the
termination or expiration of all Letters of Credit, the termination of all Rate
Protection Agreements and the termination of all Commitments, the security
interests granted herein shall automatically terminate with respect to (x) such
Collateral (in the case of clause (i)) or (y) all Collateral (in the case of
clause (ii)). Upon any such sale, transfer, disposition or termination, the
Administrative Agent will, at such Pledgor's sole expense, deliver to such
Pledgor, without any representations, warranties or recourse of any kind
whatsoever, all certificates and instruments representing or evidencing all
Pledged Shares and all Pledged Notes, together with all other Collateral held by
the Administrative Agent hereunder, and execute and deliver to such Pledgor such
documents as such Pledgor shall reasonably request to evidence such termination.
SECTION 2.6. Security Interest Absolute. All rights of the Administrative
Agent and the security interests granted to the Administrative Agent hereunder,
and all obligations of each Pledgor hereunder, shall be absolute and
unconditional, irrespective of
(a) any lack of validity or enforceability of the Credit Agreement,
any Note or any other Loan Document,
-5-
<PAGE>
(b) the failure of any Secured Party or any holder of any Note
(i) to assert any claim or demand or to enforce any right or
remedy against the Borrower, any other Obligor or any other Person
under the provisions of the Credit Agreement, any Note, any other
Loan Document or otherwise, or
(ii) to exercise any right or remedy against any other
guarantor of, or collateral securing, any Secured Obligations,
(c) any change in the time, manner or place of payment of, or in any
other term of, all or any of the Secured Obligations or any other
extension, compromise or renewal of any Secured Obligation,
(d) any reduction, limitation, impairment or termination of any
Secured Obligations for any reason, including any claim of waiver,
release, surrender, alteration or compromise, and shall not be subject to
(and such Pledgor hereby waives any right to or claim of) any defense or
setoff, counterclaim, recoupment or termination whatsoever by reason of
the invalidity, illegality, nongenuineness, irregularity, compromise,
unenforceability of, or any other event or occurrence affecting, any
Secured Obligations or otherwise,
(e) any amendment to, rescission, waiver, or other modification of,
or any consent to departure from, any of the terms of the Credit
Agreement, any Note or any other Loan Document,
(f) any addition, exchange, release, surrender or non-perfection of
any collateral (including the Collateral), or any amendment to or waiver
or release of or addition to or consent to departure from any guaranty,
for any of the Secured Obligations, or
(g) any other circumstances which might otherwise constitute a
defense available to, or a legal or equitable discharge of, the Borrower,
any other Obligor, any surety or any guarantor.
SECTION 2.7. Postponement of Subrogation, etc. Each Pledgor will not
exercise any rights which it may acquire by reason of any payment made
hereunder, whether by way of subrogation, reimbursement or otherwise, until the
prior payment, in full and in cash, of all Secured Obligations, the termination
or expiration of all Letters of Credit, the termination of all Rate Protection
Agreements and the termination of all Commitments. Any amount paid to any
Pledgor on account of any payment made hereunder prior to the payment in full
in cash of all Secured Obligations shall be held in trust for the benefit of the
Secured Parties and each holder of a Note and shall immediately be paid to the
Secured Parties and each holder of a
-6-
<PAGE>
Note and credited and applied against the Secured Obligations, whether matured
or unmatured, in accordance with the terms of the Credit Agreement; provided,
however, that if
(a) such Pledgor has made payment to the Secured Parties and each
holder of a Note of all or any part of the Secured Obligations, and
(b) all Secured Obligations have been paid in full in cash, all
Letters of Credit have been terminated or expired, all Rate Protection
Agreements have been terminated and all Commitments have been permanently
terminated,
each Secured Party and each holder of a Note agrees that, at such Pledgor's
request, the Secured Parties and the holders of the Notes will execute and
deliver to such Pledgor appropriate documents (without recourse and without
representation or warranty) necessary to evidence the transfer by subrogation to
such Pledgor of an interest in the Secured Obligations resulting from such
payment by such Pledgor. In furtherance of the foregoing, for so long as any
Secured Obligations, Letters of Credit or Commitments remain outstanding or any
Rate Protection Agreement remains in full force and effect, such Pledgor shall
refrain from taking any action or commencing any proceeding against the Borrower
or any other Obligor (or its successors or assigns, whether in connection with a
bankruptcy proceeding or otherwise) to recover any amounts in respect of
payments made under this Pledge Agreement to any Secured Party or any holder of
a Note.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.1. Representations and Warranties, etc. Each Pledgor represents
and warrants to each Secured Party, as at the date of each pledge and delivery
hereunder (including each pledge and delivery of Pledged Shares and each pledge
and delivery of a Pledged Note) by such Pledgor to the Administrative Agent of
any Collateral, that the representations and warranties contained in Article VI
of the Credit Agreement, insofar as the representations and warranties contained
therein are applicable to such Pledgor and its properties, each such
representation and warranty set forth in such Article (insofar as applicable as
aforesaid) and all other terms of the Credit Agreement to which reference is
made therein, together with all related definitions and ancillary provisions,
being hereby incorporated into this Pledge Agreement by reference as though
specifically set forth in this Article III.
SECTION 3.1.1. Ownership, No Liens, etc. Such Pledgor is the legal and
beneficial owner of, and has good and marketable title to (and has full right
and authority to pledge and assign) such Collateral, free and clear of all
liens, security interests, options, or other charges or encumbrances, except any
lien or security interest granted pursuant hereto in favor of the Administrative
Agent.
-7-
<PAGE>
SECTION 3.1.2. Valid Security Interest. The delivery of such Collateral to
the Administrative Agent is effective to create a valid, perfected, first
priority security interest in such Collateral and all proceeds thereof, securing
the Secured Obligations. No filing or other action will be necessary to perfect
or protect such security interest.
SECTION 3.1.3. As to Pledged Shares. In the case of any Pledged Shares
constituting such Collateral, all of such Pledged Shares are duly authorized and
validly issued, fully paid, and non-assessable, and constitute all of the issued
and outstanding shares of capital stock of each Pledged Share Issuer. Such
Pledgor has no Subsidiaries other than the Pledged Share Issuers, except as set
forth in Item C of Attachment 1.
SECTION 3.1.4. As to Pledged Notes. In the case of each Pledged Note, all
of such Pledged Notes have been duly authorized, executed, endorsed, issued and
delivered, and are the legal, valid and binding obligation of the issuers
thereof, and are not in default.
SECTION 3.1.5. Authorization, Approval, etc. No authorization, approval,
or other action by, and no notice to or filing with, any governmental authority,
regulatory body or any other Person is required either
(a) for the pledge by such Pledgor of any Collateral pursuant to
this Pledge Agreement or for the execution, delivery, and performance of
this Pledge Agreement by such Pledgor, or
(b) for the exercise by the Administrative Agent of the voting or
other rights provided for in this Pledge Agreement, or, except with
respect to any Pledged Shares, as may be required in connection with a
disposition of such Pledged Shares by laws affecting the offering and sale
of securities generally, the remedies in respect of the Collateral
pursuant to this Pledge Agreement.
SECTION 3.1.6. Compliance with Laws. Such Pledgor is in compliance with
the requirements of all applicable laws (including the provisions of the Fair
Labor Standards Act), rules, regulations and orders of every governmental
authority, the non-compliance with which could reasonably be expected to have a
Material Adverse Effect or which could reasonably be expected to materially
adversely affect the value of the Collateral or the worth of the Collateral as
collateral security.
ARTICLE IV
COVENANTS
SECTION 4.1. Certain Covenants. Each Pledgor covenants and agrees that, so
long
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<PAGE>
as any portion of the Secured Obligations shall remain unpaid, any Letters of
Credit shall be outstanding, any Rate Protection Agreement shall remain in full
force and effect or any Secured Party shall have any outstanding Commitment,
such Pledgor will, unless the Required Lenders shall otherwise consent in
writing, perform, comply with and be bound by (a) all of the agreements,
covenants and obligations contained in Article VII of the Credit Agreement which
are applicable to such Pledgor or its properties, each such agreement, covenant
and obligation contained in such Article and all other terms of the Credit
Agreement to which reference is made herein, together with all related
definitions and ancillary provisions, being hereby incorporated into this Pledge
Agreement by reference as though specifically set forth in this Section and (b)
the obligations set forth in this Section.
SECTION 4.1.1. Protect Collateral; Further Assurances, etc. Such Pledgor
agrees and covenants that it will not sell, assign, transfer, pledge, or
encumber in any other manner the Collateral (except in favor of the
Administrative Agent hereunder). Such Pledgor will warrant and defend the right
and title herein granted unto the Administrative Agent in and to the Collateral
(and all right, title, and interest represented by the Collateral) against the
claims and demands of all Persons whomsoever. Such Pledgor agrees that at any
time, and from time to time, at the expense of such Pledgor, such Pledgor will
promptly execute and deliver all further instruments, and take all further
action, that may be necessary or desirable, or that the Administrative Agent may
reasonably request, in order to perfect and protect any security interest
granted or purported to be granted hereby or to enable the Administrative Agent
to exercise and enforce its rights and remedies hereunder with respect to any
Collateral.
SECTION 4.1.2. Stock Powers, etc. Such Pledgor agrees that all Pledged
Shares (and all other shares of capital stock constituting Collateral) delivered
by such Pledgor pursuant to this Pledge Agreement will be accompanied by duly
executed undated blank stock powers, or other equivalent instruments of transfer
acceptable to the Administrative Agent. Such Pledgor will, from time to time
upon the request of the Administrative Agent, promptly deliver to the
Administrative Agent such stock powers, instruments, and similar documents,
satisfactory in form and substance to the Administrative Agent, with respect to
the Collateral as the Administrative Agent may reasonably request and will, from
time to time upon the request of the Administrative Agent after the occurrence
of any Event of Default, promptly transfer any Pledged Shares or other shares of
common stock constituting Collateral into the name of any nominee designated by
the Administrative Agent.
SECTION 4.1.3. Continuous Pledge. Such Pledgor will, at all times, keep
pledged to the Administrative Agent pursuant hereto all Pledged Shares and all
other shares of capital stock constituting Collateral, all Dividends and
Distributions with respect thereto, all Pledged Notes, all interest, principal
and other proceeds received by the Administrative Agent with respect to the
Pledged Notes, and all other Collateral and other securities, instruments,
proceeds, and rights from time to time received by or distributable to such
Pledgor in respect of any Collateral and will not permit any Pledged Share
Issuer to issue any capital stock which shall not have been immediately duly
pledged hereunder on a first priority perfected basis.
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<PAGE>
SECTION 4.1.4. Voting Rights; Dividends, etc. Such Pledgor agrees:
(a) after any Default of the nature referred to in Section 8.1.9 of
the Credit Agreement or any Event of Default shall have occurred and be
continuing, promptly upon receipt of notice thereof by such Pledgor and
without any request therefor by the Administrative Agent, to deliver
(properly endorsed where required hereby or requested by the
Administrative Agent) to the Administrative Agent all Dividends,
Distributions, all interest, all principal, all other cash payments, and
all proceeds of the Collateral, all of which shall be held by the
Administrative Agent as additional Collateral for use in accordance with
Section 6.4; and
(b) after any Event of Default shall have occurred and be continuing
and the Administrative Agent has notified such Pledgor of the
Administrative Agent's intention to exercise its voting power under this
Section 4.1.4(b)
(i) the Administrative Agent may exercise (to the exclusion of
such Pledgor) the voting power and all other incidental rights of
ownership with respect to any Pledged Shares or other shares of
capital stock constituting Collateral and such Pledgor hereby grants
the Administrative Agent an irrevocable proxy, exercisable under
such circumstances, to vote the Pledged Shares and such other
Collateral; and
(ii) promptly to deliver to the Administrative Agent such
additional proxies and other documents as may be necessary to allow
the Administrative Agent to exercise such voting power.
All Dividends, Distributions, interest, principal, cash payments, and proceeds
which may at any time and from time to time be held by such Pledgor but which
such Pledgor is then obligated to deliver to the Administrative Agent, shall,
until delivery to the Administrative Agent, be held by such Pledgor separate and
apart from its other property in trust for the Administrative Agent. The
Administrative Agent agrees that unless an Event of Default shall have occurred
and be continuing and the Administrative Agent shall have given the notice
referred to in Section 4.1.4(b), such Pledgor shall have the exclusive voting
power with respect to any shares of capital stock (including any of the Pledged
Shares) constituting Collateral and the Administrative Agent shall, upon the
written request of such Pledgor, promptly deliver such proxies and other
documents, if any, as shall be reasonably requested by such Pledgor which are
necessary to allow such Pledgor to exercise voting power with respect to any
such share of capital stock (including any of the Pledged Shares) constituting
Collateral; provided, however, that no vote shall be cast, or consent, waiver,
or ratification given, or action taken by such Pledgor that would impair any
Collateral or be inconsistent with or violate any provision of the Credit
Agreement or any other Loan Document (including this Pledge Agreement).
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<PAGE>
SECTION 4.1.5. Additional Undertakings. Such Pledgor will not, without the
prior written consent of the Administrative Agent:
(a) enter into any agreement amending, supplementing, or waiving any
provision of any Pledged Note (including any underlying instrument
pursuant to which such Pledged Note is issued) or compromising or
releasing or extending the time for payment of any obligation of the maker
thereof; or
(b) take or omit to take any action the taking or the omission of
which would result in any impairment or alteration of any obligation of
the maker of any Pledged Note or other instrument constituting Collateral.
ARTICLE V
THE ADMINISTRATIVE AGENT
SECTION 5.1. Administrative Agent Appointed Attorney-in-Fact. Each Pledgor
hereby irrevocably appoints the Administrative Agent such Pledgor's
attorney-in-fact, with full authority in the place and stead of such Pledgor and
in the name of such Pledgor or otherwise, from time to time in the
Administrative Agent's discretion, to take any action and to execute any
instrument which the Administrative Agent may deem necessary or advisable to
accomplish the purposes of this Pledge Agreement, including after the occurrence
and during the continuance of a Default of the nature referred to in Section
8.1.9 of the Credit Agreement or an Event of Default:
(a) to ask, demand, collect, sue for, recover, compromise, receive
and give acquittance and receipts for moneys due and to become due under
or in respect of any of the Collateral;
(b) to receive, endorse, and collect any drafts or other
instruments, documents and chattel paper, in connection with clause (a)
above; and
(c) to file any claims or take any action or institute any
proceedings which the Administrative Agent may deem necessary or desirable
for the collection of any of the Collateral or otherwise to enforce the
rights of the Administrative Agent with respect to any of the Collateral.
Such Pledgor hereby acknowledges, consents and agrees that the power of attorney
granted pursuant to this Section is irrevocable and coupled with an interest.
SECTION 5.2. Administrative Agent May Perform. If any Pledgor fails to
perform
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<PAGE>
any agreement contained herein, the Administrative Agent may itself perform, or
cause performance of, such agreement, and the expenses of the Administrative
Agent incurred in connection therewith shall be payable by such Pledgor pursuant
to Section 6.4.
SECTION 5.3. Administrative Agent Has No Duty. The powers conferred on the
Administrative Agent hereunder are solely to protect its interest (on behalf of
the Secured Parties) in the Collateral and shall not impose any duty on it to
exercise any such powers. Except for reasonable care of any Collateral in its
possession and the accounting for moneys actually received by it hereunder, the
Administrative Agent shall have no duty as to any Collateral or responsibility
for
(a) ascertaining or taking action with respect to calls,
conversions, exchanges, maturities, tenders or other matters relative to
any Pledged Property, whether or not the Administrative Agent has or is
deemed to have knowledge of such matters, or
(b) taking any necessary steps to preserve rights against prior
parties or any other rights pertaining to any Collateral.
SECTION 5.4. Reasonable Care. The Administrative Agent is required to
exercise reasonable care in the custody and preservation of any of the
Collateral in its possession; provided, however, the Administrative Agent shall
be deemed to have exercised reasonable care in the custody and preservation of
any of the Collateral, if it takes such action for that purpose as any Pledgor
reasonably requests in writing at times other than upon the occurrence and
during the continuance of any Event of Default, but failure of the
Administrative Agent to comply with any such request at any time shall not in
itself be deemed a failure to exercise reasonable care.
ARTICLE VI
REMEDIES
SECTION 6.1. Certain Remedies. If any Event of Default shall have occurred
and be continuing:
(a) The Administrative Agent may exercise in respect of the
Collateral, in addition to other rights and remedies provided for herein
or otherwise available to it, all the rights and remedies of a secured
party on default under the U.C.C. (whether or not the U.C.C. applies to
the affected Collateral) and also may, without notice except as specified
below, sell the Collateral or any part thereof in one or more parcels at
public or private sale, at any of the Administrative Agent's offices or
elsewhere, for cash, on credit or for future delivery, and upon such other
terms as the Administrative Agent may deem commercially reasonable. Each
Pledgor agrees that, to the extent
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<PAGE>
notice of sale shall be required by law, at least ten days' prior notice
to such Pledgor of the time and place of any public sale or the time after
which any private sale is to be made shall constitute reasonable
notification. The Administrative Agent shall not be obligated to make any
sale of Collateral regardless of notice of sale having been given. The
Administrative Agent may adjourn any public or private sale from time to
time by announcement at the time and place fixed therefor, and such sale
may, without further notice, be made at the time and place to which it was
so adjourned.
(b) The Administrative Agent may
(i) transfer all or any part of the Collateral into the name
of the Administrative Agent or its nominee, with or without
disclosing that such Collateral is subject to the lien and security
interest hereunder,
(ii) notify the parties obligated on any of the Collateral to
make payment to the Administrative Agent of any amount due or to
become due thereunder,
(iii) enforce collection of any of the Collateral by suit or
otherwise, and surrender, release or exchange all or any part
thereof, or compromise or extend or renew for any period (whether or
not longer than the original period) any obligations of any nature
of any party with respect thereto,
(iv) endorse any checks, drafts, or other writings in such
Pledgor's name to allow collection of the Collateral,
(v) take control of any proceeds of the Collateral, and
(vi) execute (in the name, place and stead of such Pledgor)
endorsements, assignments, stock powers and other instruments of
conveyance or transfer with respect to all or any of the Collateral.
SECTION 6.2. Securities Laws. If the Administrative Agent shall determine
to exercise its right to sell all or any of the Collateral pursuant to Section
6.1, each Pledgor agrees that, upon request of the Administrative Agent, such
Pledgor will, at its own expense:
(a) execute and deliver, and cause each issuer of the Collateral
contemplated to be sold and the directors and officers thereof to execute
and deliver, all such instruments and documents, and do or cause to be
done all such other acts and things, as may be necessary or, in the
opinion of the Administrative Agent, advisable to register such Collateral
under the provisions of the Securities Act of 1933, as from time to time
amended (the "Securities Act"), and to cause the registration statement
relating thereto to become effective and to remain effective for such
period as prospectuses are required by law to be furnished, and to make
all amendments and supplements thereto
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<PAGE>
and to the related prospectus which, in the opinion of the Administrative
Agent, are necessary or advisable, all in conformity with the requirements
of the Securities Act and the rules and regulations of the Securities and
Exchange Commission applicable thereto;
(b) use its best efforts to qualify the Collateral under the state
securities or "Blue Sky" laws and to obtain all necessary governmental
approvals for the sale of the Collateral, as requested by the
Administrative Agent;
(c) cause each such issuer to make available to its security
holders, as soon as practicable, an earnings statement that will satisfy
the provisions of Section 11(a) of the Securities Act; and
(d) do or cause to be done all such other acts and things as may be
necessary to make such sale of the Collateral or any part thereof valid
and binding and in compliance with applicable law.
Each Pledgor further acknowledges the impossibility of ascertaining the amount
of damages that would be suffered by the Administrative Agent or the Secured
Parties by reason of the failure by any Pledgor to perform any of the covenants
contained in this Section and, consequently, agrees that, if such Pledgor shall
fail to perform any of such covenants, it shall pay, as liquidated damages and
not as a penalty, an amount equal to the value (as determined by the
Administrative Agent) of the Collateral on the date the Administrative Agent
shall demand compliance with this Section.
SECTION 6.3. Compliance with Restrictions. Each Pledgor agrees that in any
sale of any of the Collateral whenever an Event of Default shall have occurred
and be continuing, the Administrative Agent is hereby authorized to comply with
any limitation or restriction in connection with such sale as it may be advised
by counsel is necessary in order to avoid any violation of applicable law
(including compliance with such procedures as may restrict the number of
prospective bidders and purchasers, require that such prospective bidders and
purchasers have certain qualifications, and restrict such prospective bidders
and purchasers to persons who will represent and agree that they are purchasing
for their own account for investment and not with a view to the distribution or
resale of such Collateral), or in order to obtain any required approval of the
sale or of the purchaser by any governmental regulatory authority or official,
and such Pledgor further agrees that such compliance shall not result in such
sale being considered or deemed not to have been made in a commercially
reasonable manner, nor shall the Administrative Agent be liable nor accountable
to such Pledgor for any discount allowed by the reason of the fact that such
Collateral is sold in compliance with any such limitation or restriction.
SECTION 6.4. Application of Proceeds. All cash proceeds received by the
Administrative Agent in respect of any sale of, collection from, or other
realization upon, all or any part of the Collateral shall be applied by the
Administrative Agent against, all or any
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<PAGE>
part of the Secured Obligations as follows:
(a) first, to the payment of any amounts payable to the
Administrative Agent pursuant to Section 11.3 of the Credit Agreement and
Section 6.5;
(b) second, to the equal and ratable payment of Secured Obligations,
in accordance with each Secured Party's Secured Obligations owing to it
under or pursuant to the Credit Agreement or any other Loan Document, or
under or pursuant to any Hedging Obligation included in the Secured
Obligations as to each Secured Party, applied
(i) first to fees and expense reimbursements then due to such
Secured Party,
(ii) then to interest due to such Secured Party,
(iii) then to pay or prepay principal of the Loans owing to,
or to reduce the "credit exposure" of, such Secured Party under such
Hedging Obligation, as the case may be, and
(iv) then to pay the remaining outstanding Secured Obligations
and all Letter of Credit Outstandings;
(c) third, without duplication of any amounts paid pursuant to
clause (b) above, to the Indemnified Parties to the extent of any amounts
owing pursuant to Section 11.4 of the Credit Agreement; and
(d) fourth, to be held as additional collateral security until the
payment in full in cash of all of the Secured Obligations, the termination
or expiration of all Letters of Credit, the termination of all Rate
Protection Agreements and the termination of all Commitments, after which
such remaining cash proceeds shall be paid over to the Pledgor or to
whomsoever may be lawfully entitled to receive such surplus.
For purposes of this Pledge Agreement, the "credit exposure" at any time of any
Secured Party with respect to a Hedging Obligation to which such Secured Party
is a party shall be determined at such time in accordance with the customary
methods of calculating credit exposure under similar arrangements by the
counterparty to such arrangements, taking into account potential interest rate
movements and the respective termination provisions and notional principal
amount and term of such Hedging Obligation.
SECTION 6.5. Indemnity and Expenses. Each Pledgor hereby agrees to jointly
and severally indemnify and hold harmless the Administrative Agent from and
against any and all
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<PAGE>
claims, losses, and liabilities arising out of or resulting from this Pledge
Agreement (including enforcement of this Pledge Agreement), except claims,
losses, or liabilities resulting from the Administrative Agent's gross
negligence or wilful misconduct. Upon demand, such Pledgor will pay to the
Administrative Agent the amount of any and all reasonable expenses, including
the reasonable fees and disbursements of its counsel and of any experts and
agents, which the Administrative Agent may incur in connection with:
(a) the administration of this Pledge Agreement, the Credit
Agreement and each other Loan Document;
(b) the custody, preservation, use, or operation of, or the sale of,
collection from, or other realization upon, any of the Collateral;
(c) the exercise or enforcement of any of the rights of the
Administrative Agent hereunder; or
(d) the failure by such Pledgor to perform or observe any of the
provisions hereof.
ARTICLE VII
MISCELLANEOUS PROVISIONS
SECTION 7.1. Loan Document. This Pledge Agreement is a Loan Document
executed pursuant to the Credit Agreement and shall (unless otherwise expressly
indicated herein) be construed, administered and applied in accordance with the
terms and provisions thereof.
SECTION 7.2. Amendments, etc. No amendment to or waiver of any provision
of this Pledge Agreement nor consent to any departure by any Pledgor herefrom
shall in any event be effective unless the same shall be in writing and signed
by the Administrative Agent (on behalf of the Lenders or the Required Lenders,
as the case may be) and the Pledgors in the case of an amendment, and then such
waiver or consent shall be effective only in the specific instance and for the
specific purpose for which it is given.
SECTION 7.3. Protection of Collateral. The Administrative Agent may from
time to time, at its option, perform any act which each Pledgor agrees hereunder
to perform and which such Pledgor shall fail to perform after being requested in
writing so to perform (it being understood that no such request need be given
after the occurrence and during the continuance of an Event of Default) and the
Administrative Agent may from time to time take any other action which the
Administrative Agent reasonably deems necessary for the maintenance,
preservation or protection of any of the Collateral or of its security interest
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<PAGE>
therein.
SECTION 7.4. Addresses for Notices. All notices and other communications
provided for hereunder shall be in writing (including telegraphic communication)
and, if to any Pledgor, mailed or telecopied or delivered to it, addressed to it
in care of the Borrower at the address of the Borrower specified in the Credit
Agreement, if to the Administrative Agent, mailed or telecopied or delivered to
it, addressed to it at the address of the Administrative Agent specified in the
Credit Agreement. All such notices and other communications, when mailed and
properly addressed with postage prepaid or if properly addressed and sent by
pre-paid courier service, shall be deemed given when received; any such notice
or communication, if transmitted by telecopier, shall be deemed given when
transmitted and electronically confirmed.
SECTION 7.5. Additional Pledgors. Upon the execution and delivery by any
other Person of an instrument in the form of Annex I hereto, such Person shall
become a "Pledgor" hereunder with the same force and effect as if originally
named a Pledgor herein. The execution and delivery of any such instrument shall
not require the consent of any other Pledgor hereunder. The rights and
obligations of each Pledgor hereunder shall remain in full force and effect
nothwithstanding the addition of any new Pledgor as a party to this Pledge
Agreement.
SECTION 7.6. Section Captions. Section captions used in this Pledge
Agreement are for convenience of reference only, and shall not affect the
construction of this Pledge Agreement.
SECTION 7.7. Severability. Wherever possible each provision of this Pledge
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Pledge Agreement shall be
prohibited by or invalid under such law, such provision shall be ineffective to
the extent of such prohibition or invalidity, without invalidating the remainder
of such provision or the remaining provisions of this Pledge Agreement.
SECTION 7.8. Counterparts. This Pledge Agreement may be executed by the
parties hereto in several counterparts, each of which shall be deemed to be an
original and all of which shall constitute together but one and the same
agreement.
SECTION 7.9. Governing Law, Entire Agreement, etc. THIS PLEDGE AGREEMENT
SHALL BE DEEMED TO BE A CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF
THE STATE OF NEW YORK, EXCEPT TO THE EXTENT THAT THE VALIDITY OR PERFECTION OF
THE SECURITY INTEREST HEREUNDER, OR REMEDIES HEREUNDER, IN RESPECT OF ANY
PARTICULAR COLLATERAL ARE GOVERNED BY THE LAWS OF A JURISDICTION OTHER THAN THE
STATE OF NEW YORK. THIS PLEDGE
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<PAGE>
AGREEMENT AND THE OTHER LOAN DOCUMENTS CONSTITUTE THE ENTIRE UNDERSTANDING AMONG
THE PARTIES HERETO WITH RESPECT TO THE SUBJECT MATTER HEREOF AND SUPERSEDE ANY
PRIOR AGREEMENTS, WRITTEN OR ORAL, WITH RESPECT THERETO.
IN WITNESS WHEREOF, the parties hereto have caused this Pledge Agreement
to be duly executed and delivered by their respective officers thereunto duly
authorized as of the day and year first above written.
[NAME OF PLEDGOR], ___________
_________________
By
Name:
Title:
[NAME OF PLEDGOR], ___________
_________________
By
Name:
Title:
[NAME OF PLEDGOR], ___________
_________________
By
Name:
Title:
FLEET NATIONAL BANK, as
Administrative Agent
By
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<PAGE>
Name:
Title:
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<PAGE>
EXHIBIT A
to Subsidiary
Pledge Agreement
PROMISSORY NOTE
$________________ ___, _____
FOR VALUE RECEIVED, the undersigned, ______________, a _______________
corporation (the "Maker"), promises to pay to the order of ________________, a
___________ _________ (the "Payee"), in equal ________ installments, commencing
__________ __, ____ to and including __________ __, ____, the principal sum of
____________________ DOLLARS ($________), representing the aggregate principal
amount of an intercompany loan made by the Payee to the Maker.
The unpaid principal amount of this promissory note (this "Note") from
time to time outstanding shall bear interest at a rate of interest equal to
____________, which the Maker represents to be a lawful and commercially
reasonable rate, payable __________, and all payments of principal of and
interest on this Note shall be payable in lawful currency of the United States
of America. All such payments shall be made by the Maker to an account
established by the Payee at _______________ and shall be recorded on the grid
attached hereto by the holder hereof (including the Administrative Agent
(hereinafter defined) as pledgee). Upon notice from the Administrative Agent
that a Default (as defined in the Second Amended and Restated Credit Agreement,
dated as of , 1999 amending and restating in its entirety that certain Amended
and Restated Credit Agreement, dated as of September 11, 1998 (as amended prior
to the Amendment Effective Date) (as so amended and restated or otherwise
modified, and together with all amendments, supplements, restatements and other
modifications, if any, thereafter made thereto, the "Credit Agreement"), among
Duane Reade, a New York general partnership (the "Borrower"), the Parent
Guarantors named therein, the various financial institutions as are, or may from
time to time become, parties thereto (each, individually, a "Lender", and
collectively, the "Lenders"), DLJ Capital Funding, Inc., as Syndication Agent,
Fleet National Bank, as the administrative agent (in such capacity, the
"Administrative Agent") and Credit Lyonnais New York Branch, as the
documentation agent (in such capacity, the "Documentation Agent") of the nature
referred to in Section 8.1.9 of the Credit Agreement or an Event of Default (as
defined in the Credit Agreement) has occurred and is continuing under the Credit
Agreement, the Maker shall make such payments, in same day funds, to such other
account as the Administrative Agent shall direct in such notice.
This Note is one of the Pledged Notes referred to in the Pledge Agreement.
Upon the occurrence and continuance of an Event of Default under the Credit
Agreement, and notice thereof by the Administrative Agent to the Maker, the
Administrative Agent shall have all rights of the Payee to collect and
accelerate, and enforce all rights with respect to, the
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<PAGE>
Indebtedness evidenced by this Note. Unless otherwise defined herein or the
context otherwise requires, terms used herein have the meanings provided in the
Credit Agreement.
Reference is made to the Credit Agreement for a description of the Pledge
Agreement pursuant to which this Note has been pledged to the Administrative
Agent as security for the Secured Obligations outstanding from time to time
under the Credit Agreement and each other Loan Document.
In addition to, but not in limitation of, the foregoing, the Maker further
agrees to pay all expenses, including reasonable attorneys' fees and legal
expenses, incurred by the holder (including the Administrative Agent as pledgee)
of this Note endeavoring to collect any amounts payable hereunder which are not
paid when due, whether by acceleration or otherwise.
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
INTERNAL LAWS OF THE STATE OF NEW YORK.
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<PAGE>
THE MAKER HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY
RIGHTS IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED ON THIS
NOTE. THE MAKER ACKNOWLEDGES AND AGREES THAT IT HAS RECEIVED FULL AND SUFFICIENT
CONSIDERATION FOR THIS PROVISION AND THAT THIS PROVISION IS A MATERIAL
INDUCEMENT FOR THE PAYEE TO ACCEPT THIS NOTE.
[NAME OF MAKER]
By
Name:
Title:
Pay to the order of FLEET NATIONAL
BANK, as Administrative Agent
[NAME OF PAYEE]
By
Name:
Title:
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<PAGE>
GRID
Intercompany Loans made by [Name of Payee] to [Name of Maker] and payments
of principal of such Loans.
================================================================================
Amount of Amount of Outstanding
Intercompany Principal Principal Notation
Date Loan Payment Balance Made By
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
================================================================================
<PAGE>
ATTACHMENT 1
to Subsidiary
Pledge Agreement
[NAME OF PLEDGOR]
Item A. Pledged Notes
Pledged Note Issuer Description
- ------------------- -----------
Item B. Pledged Shares
Common Stock
------------------------------------
Authorized Outstanding % of Shares
Pledged Share Issuer Shares Shares Pledged
- -------------------- ------ ------ -------
Item C. Additional Subsidiaries
<PAGE>
<PAGE>
ANNEX I
to Subsidiary Pledge Agreement
FORM OF SUPPLEMENT TO SUBSIDIARY PLEDGE AGREEMENT
This SUPPLEMENT NO. ___, dated as of ________ __, ____ (this
"Supplement"), to the Subsidiary Pledge Agreement, dated as of ________ __, ____
(as amended, supplemented, amended and restated or otherwise modified from time
to time, the "Pledge Agreement"), among the initial signatories thereto and each
other Person which from time to time thereafter became a party thereto pursuant
to Section 7.5 thereof (each, individually, a "Pledgor", and, collectively, the
"Pledgors"), in favor of FLEET NATIONAL BANK, as administrative agent (together
with any successor(s) thereto in such capacity, the "Administrative Agent") for
each of the Secured Parties (as defined in the Credit Agreement referred to
below), is made by the undersigned.
W I T N E S S E T H:
WHEREAS, pursuant to that certain Second Amended and Restated Credit
Agreement, dated as of March 17, 1999, amending and restating in its entirety
that certain Amended and Restated Credit Agreement, dated as of September 11,
1998 (as amended prior to the Amendment Effective Date, the "Existing Credit
Agreement" and as so amended and restated or otherwise modified, and together
with all amendments, supplements, restatements and other modifications, if any,
thereafter made thereto, the "Credit Agreement"), among Duane Reade, a New York
general partnership (the "Borrower"), each of the Parent Guarantors named
therein, the various financial institutions as are, or may from time to time
become, parties thereto (each, individually, a "Lender", and collectively, the
"Lenders"), DLJ Capital Funding, Inc., as the Syndication Agent, Fleet National
Bank, as the Administrative Agent and Credit Lyonnais New York Branch, as the
Documentation Agent, the Lenders and the Issuer have extended Commitments to
make Credit Extensions to the Borrower;
WHEREAS, as a condition precedent to the making and maintenance of the
Credit Extensions under the Credit Agreement, the undersigned is required to
execute and deliver this Supplement;
WHEREAS, the undersigned has duly authorized the execution, delivery and
performance of this Supplement and the Pledge Agreement;
WHEREAS, capitalized terms used herein and not otherwise defined herein
shall have the meanings assigned to such terms in the Pledge Agreement;
<PAGE>
WHEREAS, the Pledge Agreement provides that additional parties may become
Pledgors under the Pledge Agreement by execution and delivery of an instrument
in the form of this Supplement;
WHEREAS, pursuant to the provisions of Section 7.5 of the Pledge
Agreement, the undersigned is becoming an Additional Pledgor under the Pledge
Agreement;
WHEREAS, the undersigned is a Subsidiary of the Borrower; and
WHEREAS, the undersigned desires to become a Pledgor under the Pledge
Agreement in order to induce the Secured Parties to continue to make and
maintain Credit Extensions under the Credit Agreement as consideration therefor;
NOW, THEREFORE, the undersigned agrees, for the benefit of each Secured
Party, as follows:
SECTION 1. In accordance with the Pledge Agreement, the undersigned by its
signature below becomes a Pledgor under the Pledge Agreement with the same force
and effect as if it were an original signatory thereto as a Pledgor and the
undersigned hereby
(a) agrees to all the terms and provisions of the Pledge Agreement
applicable to it as a Pledgor thereunder;
(b) assigns and pledges to the Administrative Agent for its benefit
and the ratable benefit of each of the Secured Parties, and grants to the
Administrative Agent for its benefit and the ratable benefit of each of
the Secured Parties, a security interest in all of the following, whether
now or hereafter existing or acquired by the undersigned (its
"Collateral"):
(i) all promissory notes of each Pledged Note Issuer
identified in Item A of Attachment 1 hereto;
(ii) all other Pledged Notes issued from time to time;
(iii) all issued and outstanding shares of capital stock of
each Pledged Share Issuer identified in Item B of Attachment 1
hereto;
(iv) all other Pledged Shares issued from time to time;
(v) all other Pledged Property, whether now or hereafter
delivered to the Administrative Agent in connection with this Pledge
Agreement;
<PAGE>
(vi) all Dividends, Distributions, interest, and other
payments and rights with respect to any Pledged Property; and
(vii) all proceeds of any of the foregoing;
(c) agrees that the Attachment attached hereto shall be deemed to be
an Attachment thereto; and
(d) represents and warrants that the representations and warranties
made by it as a Pledgor thereunder are true and correct on and as of the
date hereof.
In furtherance of the foregoing, each reference to a "Pledgor" or "Additional
Pledgor" in the Security Agreement shall be deemed to include the undersigned.
SECTION 2. The undersigned hereby represents and warrants that this
Supplement has been duly authorized, executed and delivered by the undersigned
and constitutes a legal, valid and binding obligation of the undersigned,
enforceable against it in accordance with its terms.
SECTION 3. Except as expressly supplemented hereby, the Pledge Agreement
shall remain in full force and effect in accordance with its terms.
SECTION 4. In the event any one or more of the provisions contained in
this Supplement should be held invalid, illegal or unenforceable in any respect,
the validity, legality and enforceability of the remaining provisions contained
herein and in the Pledge Agreement shall not in any way be affected or impaired.
SECTION 5. Without limiting the provisions of the Credit Agreement (or any
other Loan Document, including the Pledge Agreement), the undersigned agrees to
reimburse the Administrative Agent for its reasonable out-of-pocket expenses in
connection with this Supplement, including reasonable attorneys' fees and
expenses of the Administrative Agent.
SECTION 6. THIS SUPPLEMENT SHALL BE DEEMED TO BE A CONTRACT MADE UNDER AND
GOVERNED BY THE LAWS OF THE STATE OF NEW YORK. THIS SUPPLEMENT, THE PLEDGE
AGREEMENT AND THE OTHER LOAN DOCUMENTS CONSTITUTE THE ENTIRE UNDERSTANDING AMONG
THE PARTIES HERETO WITH RESPECT TO THE SUBJECT MATTER HEREOF AND THEREOF AND
SUPERSEDE ANY PRIOR AGREEMENTS, WRITTEN OR ORAL, WITH RESPECT THERETO.
SECTION 7. This Supplement hereby incorporates by reference the provisions
of the Pledge Agreement, which provisions are deemed to be a part hereof, and
this Supplement shall be deemed to be a part of the Pledge Agreement.
<PAGE>
SECTION 8. This Supplement may be executed by the parties hereto in
several counterparts, each of which shall be deemed to be an original and all of
which shall constitute together but one and the same agreement.
IN WITNESS WHEREOF, the undersigned has caused this Supplement to be duly
executed and delivered by its officer thereunto duly authorized as of the date
first above written.
[NAME OF ADDITIONAL PLEDGOR]
By: ________________________
Name:
Title:
ACKNOWLEDGED AND ACCEPTED BY:
FLEET NATIONAL BANK, as
Administrative Agent
By: _________________________
Name:
Title:
<PAGE>
ATTACHMENT 1
to Supplement No. ___ to
Subsidiary Pledge Agreement
[NAME OF PLEDGOR]
Item A. Pledged Notes
Pledged Note Issuer Description
Item B. Pledged Shares
Common Stock
------------------------------------------
Pledged Share Issuer Authorized Outstanding % of Shares
- -------------------- Shares Shares Pledged
---------- ----------- -----------
Item C. Additional Subsidiaries
<PAGE>
EXHIBIT H
to Second Amended and Restated
Credit Agreement
SUBSIDIARY GUARANTY
This SUBSIDIARY GUARANTY (as amended, supplemented, amended and restated
or otherwise modified from time to time, this "Guaranty"), dated as of
__________ __, ____, is made by each of the signatories hereto and each other
Person which may from time to time hereafter become a party hereto pursuant to
Section 5.5 (each, individually, an "Additional Guarantor", and, collectively,
the "Additional Guarantors", and, together with each of the signatories hereto,
each, individually, a "Guarantor", and, collectively, the "Guarantors"), in
favor of FLEET NATIONAL BANK, as administrative agent (together with its
successor(s) thereto, in such capacity the "Administrative Agent") for each of
the Secured Parties.
W I T N E S S E T H:
WHEREAS, pursuant to a Second Amended and Restated Credit Agreement, dated
as of March 17, 1999, amending and restating in its entirety that certain
Amended and Restated Credit Agreement, dated as of September 11, 1998 (as
amended prior to the Amendment Effective Date) (as so amended and restated, and
together with all amendments, supplements, restatements and other modifications,
if any, from time to time thereafter made thereto, the "Credit Agreement"),
among Duane Reade, a New York general partnership (the "Borrower"), the Parent
Guarantors named therein, the various financial institutions as are, or may from
time to time become, parties thereto (each, individually, a "Lender", and
collectively, the "Lenders"), DLJ Capital Funding, Inc., as the Syndication
Agent, Fleet National Bank, as the Administrative Agent and Credit Lyonnais New
York Branch, as the Documentation Agent, the Lenders and the Issuer have
extended Commitments to make Credit Extensions to the Borrower;
WHEREAS, as a condition precedent to the making of the Credit Extensions
(including the initial Credit Extension) under the Credit Agreement, each
Guarantor is required to execute and deliver this Guaranty; and
WHEREAS, each Guarantor has duly authorized the execution, delivery and
performance of this Guaranty; and
WHEREAS, it is in the best interests of each Guarantor to execute this
Guaranty inasmuch as each Guarantor will derive substantial direct and indirect
benefits from the Credit Extensions made from time to time to the Borrower by
the Lenders and the Issuer pursuant to the Credit Agreement;
<PAGE>
NOW THEREFORE, for good and valuable consideration the receipt of which is
hereby acknowledged, and in order to induce the Lenders and the Issuer to make
Credit Extensions (including the initial Credit Extension) to the Borrower
pursuant to the Credit Agreement, and to induce Secured Parties to enter into
Rate Protection Agreements, each Guarantor agrees, for the benefit of each
Secured Party, as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. Certain Terms. The following terms (whether or not
underscored) when used in this Guaranty, including its preamble and recitals,
shall have the following meanings (such definitions to be equally applicable to
the singular and plural forms thereof):
"Additional Guarantor" and "Additional Guarantors" are defined in the
preamble.
"Administrative Agent" is defined in the preamble.
"Borrower" is defined in the first recital.
"Credit Agreement" is defined in the first recital.
"Guarantor" and "Guarantors" are defined in the preamble.
"Guaranty" is defined in the preamble.
"Lenders" is defined in the first recital.
SECTION 1.2. Credit Agreement Definitions. Unless otherwise defined herein
or the context otherwise requires, terms used in this Guaranty, including its
preamble and recitals, have the meanings provided in the Credit Agreement.
ARTICLE II
GUARANTY PROVISIONS
SECTION 2.1. Guaranty. Each Guarantor hereby absolutely, unconditionally
and irrevocably
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(a) guarantees the full and punctual payment when due, whether at
stated maturity, by required prepayment, declaration, acceleration, demand
or otherwise, of all Obligations of the Borrower and each other Obligor,
now or hereafter existing, whether for principal, interest, fees, expenses
or otherwise (including all such amounts which would become due but for
the operation of the automatic stay under Section 362(a) of the United
States Bankruptcy Code, 11 U.S.C. ss.362(a), and the operation of Sections
502(b) and 506(b) of the United States Bankruptcy Code, 11 U.S.C.
ss.502(b) and ss.506(b)), and
(b) indemnifies and holds harmless each Secured Party and each
holder of a Note for any and all costs and expenses (including reasonable
attorneys' fees and expenses) incurred by such Secured Party or such
holder, as the case may be, in enforcing any rights under this Guaranty;
provided, however, that each Guarantor shall be liable under this Guaranty for
the maximum amount of such liability that can be hereby incurred without
rendering this Guaranty, as it relates to such Guarantor, voidable under
applicable law relating to fraudulent conveyance or fraudulent transfer, and not
for any greater amount. This Guaranty constitutes a guaranty of payment when due
and not of collection, and each Guarantor specifically agrees that it shall not
be necessary or required that any Secured Party or any holder of any Note
exercise any right, assert any claim or demand or enforce any remedy whatsoever
against the Borrower or any other Obligor (or any other Person) before or as a
condition to the obligations of such Guarantor hereunder.
SECTION 2.2. Acceleration of Guaranty. Each Guarantor agrees that, in the
event of any Default of the nature set forth in clauses (a) through (d) of
Section 8.1.9 of the Credit Agreement, and if such event shall occur at a time
when any of the Obligations of the Borrower and each other Obligor may not then
be due and payable, such Guarantor will pay to the Lenders forthwith the full
amount which would be payable hereunder by such Guarantor if all such
Obligations were then due and payable.
SECTION 2.3. Guaranty Absolute, etc. This Guaranty shall in all respects
be a continuing, absolute, unconditional and irrevocable guaranty of payment,
and shall remain in full force and effect until all Obligations of the Borrower
and each other Obligor have been paid in full in cash, all obligations of each
Guarantor hereunder shall have been paid in full in cash, all Letters of Credit
have been terminated or expired, all Rate Protection Agreements have been
terminated and all Commitments shall have terminated. Each Guarantor guarantees
that the Obligations of the Borrower and each other Obligor will be paid
strictly in accordance with the terms of the Credit Agreement, the Notes and
each other Loan Document under which they arise, regardless of any law,
regulation or order now or hereafter in effect in any jurisdiction affecting any
of such terms or the rights of any Secured Party or any holder of any Note with
respect thereto. The liability of each Guarantor under this Guaranty shall be
absolute, unconditional and irrevocable irrespective of:
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(a) any lack of validity, legality or enforceability of the Credit
Agreement, any Note or any other Loan Document;
(b) the failure of any Secured Party or any holder of any Note
(i) to assert any claim or demand or to enforce any right or
remedy against the Borrower, any other Obligor or any other Person
(including any other guarantor (including any Guarantor)) under the
provisions of the Credit Agreement, any Note, any other Loan
Document or otherwise, or
(ii) to exercise any right or remedy against any other
guarantor (including any Guarantor) of, or collateral securing, any
Obligations of the Borrower or any other Obligor;
(c) any change in the time, manner or place of payment of, or in any
other term of, all or any of the Obligations of the Borrower or any other
Obligor, or any other extension, compromise or renewal of any Obligation
of the Borrower or any other Obligor;
(d) any reduction, limitation, impairment or termination of any
Obligations of the Borrower or any other Obligor for any reason, including
any claim of waiver, release, surrender, alteration or compromise, and
shall not be subject to (and each Guarantor hereby waives any right to or
claim of) any defense or setoff, counterclaim, recoupment or termination
whatsoever by reason of the invalidity, illegality, nongenuineness,
irregularity, compromise, unenforceability of, or any other event or
occurrence affecting, any Obligations of the Borrower, any other Obligor
or otherwise;
(e) any amendment to, rescission, waiver, or other modification of,
or any consent to departure from, any of the terms of the Credit
Agreement, any Note or any other Loan Document;
(f) any addition, exchange, release, surrender or non-perfection of
any collateral, or any amendment to or waiver or release or addition of,
or consent to departure from, any other guaranty, held by any Secured
Party or any holder of any Note securing any of the Obligations of the
Borrower or any other Obligor; or
(g) any other circumstance which might otherwise constitute a
defense available to, or a legal or equitable discharge of, the Borrower,
any other Obligor, any surety or any guarantor.
SECTION 2.4. Reinstatement, etc. Each Guarantor agrees that this Guaranty
shall continue to be effective or be reinstated, as the case may be, if at any
time any payment (in whole or in part) of any of the Obligations is rescinded or
must otherwise be restored by any Secured Party or any holder of any Note, upon
the insolvency, bankruptcy or reorganization of the
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<PAGE>
Borrower or any other Obligor or otherwise, all as though such payment had not
been made.
SECTION 2.5. Waiver, etc. Each Guarantor hereby waives promptness,
diligence, notice of acceptance and any other notice with respect to any of the
Obligations of the Borrower or any other Obligor and of this Guaranty and any
requirement that the Administrative Agent, any other Secured Party or any holder
of any Note protect, secure, perfect or insure any security interest or Lien, or
any property subject thereto, or exhaust any right or take any action against
the Borrower, any other Obligor or any other Person (including any other
guarantor) or entity or any collateral securing the Obligations of the Borrower
or any other Obligor, as the case may be.
SECTION 2.6. Postponement of Subrogation, etc. Each Guarantor hereby
agrees that it will not exercise any rights which it may acquire by way of
rights of subrogation under this Guaranty, by any payment made hereunder or
otherwise, until the prior payment in full in cash of all Obligations of the
Borrower and each other Obligor, the termination or expiration of all Letters of
Credit, the termination of all Rate Protection Agreements and the termination of
all Commitments. Any amount paid to any Guarantor on account of any such
subrogation rights prior to the payment in full in cash of all Obligations of
the Borrower and each other Obligor shall be held in trust for the benefit of
the Secured Parties and each holder of a Note and shall immediately be paid to
the Administrative Agent for the benefit of the Secured Parties and each holder
of a Note and credited and applied against the Obligations of the Borrower and
each other Obligor, whether matured or unmatured, in accordance with the terms
of the Credit Agreement; provided, however, that if
(a) such Guarantor has made payment to the Secured Parties and each
holder of a Note of all or any part of the Obligations of the Borrower and
each other Obligor, and
(b) all Obligations of the Borrower and each other Obligor have been
paid in full in cash, all Letters of Credit have been terminated or
expired, all Rate Protection Agreements have been terminated and all
Commitments have been permanently terminated,
each Secured Party and each holder of a Note agrees that, at such Guarantor's
request, the Administrative Agent, on behalf of the Secured Parties and the
holders of the Notes, will execute and deliver to such Guarantor appropriate
documents (without recourse and without representation or warranty) necessary to
evidence the transfer by subrogation to such Guarantor of an interest in the
Obligations of the Borrower and each other Obligor resulting from such payment
by such Guarantor. In furtherance of the foregoing, for so long as any
Obligations, Letters of Credit, Rate Protection Agreements or Commitments remain
outstanding, each Guarantor shall refrain from taking any action or commencing
any proceeding against the Borrower or any other Obligor (or any of their
respective successors or assigns, whether in connection with a bankruptcy
proceeding or otherwise) to recover any amount in respect of any payment made
under this Guaranty to any Secured Party or any holder of a Note.
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SECTION 2.7. Right of Contribution. Each Guarantor hereby agrees that to
the extent that a Guarantor shall have paid more than its proportionate share of
any payment made hereunder, such Guarantor shall be entitled to seek and receive
contribution from and against any other Guarantor hereunder who has not paid its
proportionate share of such payment. Each Guarantor's right of contribution
shall be subject to the terms and conditions of Section 2.6. The provisions of
this Section 2.7 shall in no respect limit the obligations and liabilities of
any Guarantor to the Administrative Agent and each other Secured Party, and each
Guarantor shall remain liable to the Administrative Agent and each other Secured
Party for the full amount by such Guarantor hereunder.
SECTION 2.8. Successors, Transferees and Assigns; Transfers of Notes, etc.
This Guaranty shall:
(a) be binding upon each Guarantor, and its successors, transferees
and assigns; and
(b) inure to the benefit of and be enforceable by the Administrative
Agent and each other Secured Party.
Without limiting the generality of clause (b), any Lender may assign or
otherwise transfer (in whole or in part) any Note or Credit Extension held by it
to any other Person or entity, and such other Person or entity shall thereupon
become vested with all rights and benefits in respect thereof granted to such
Lender under any Loan Document (including this Guaranty) or otherwise, subject,
however, to any contrary provisions in such assignment or transfer, and to the
provisions of Section 11.11 and Article X of the Credit Agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.1. Representations and Warranties. Each Guarantor hereby
represents and warrants for itself unto each Secured Party as to all matters
contained in Article VI of the Credit Agreement and this Article III, in each
case insofar as applicable to such Guarantor or such Guarantor's properties,
together with all related definitions and ancillary provisions, all of which are
hereby incorporated into this Article III as though specifically set forth
herein.
SECTION 3.2. Organization, etc. Each Guarantor and each of its
Subsidiaries (a) is a corporation or partnership validly organized and existing
and in good standing to the extent required under the laws of the jurisdiction
of its incorporation or formation, is duly qualified to do business and is in
good standing as a foreign corporation or partnership to the extent required
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under the laws of each jurisdiction where the nature of its business requires
such qualification, and (b) has full power and authority and holds all requisite
governmental licenses, permits and other approvals to (i) enter into and perform
its Obligations in connection with the Transaction and under this Guaranty and
each other Loan Document to which it is a party and (ii) own and hold under
lease its property and to conduct its business substantially as currently
conducted by it.
SECTION 3.3. Due Authorization, Non-Contravention, etc. The execution,
delivery and performance by each Guarantor and each of its Subsidiaries of this
Guaranty and each other Loan Document executed or to be executed by it, and,
where applicable, each such Guarantor's and each such other Obligor's
participation in the consummation of the Transaction, are within such
Guarantor's and such other Obligor's corporate or partnership powers, have been
duly authorized by all necessary corporate or partnership action, and do not (i)
contravene such Guarantor's or such other Obligor's Organic Documents, (ii)
contravene any contractual restriction, law or governmental regulation or court
decree or order binding on or affecting such Guarantor or such other Obligor, or
(iii) result in, or require the creation or imposition of, any Lien on any of
such Guarantor's or such other Obligor's properties, except pursuant to the
terms of a Loan Document.
SECTION 3.4. Government Approval, Regulation, etc. No authorization or
approval or other action by, and no notice to or filing with, any governmental
authority or regulatory body or other Person, is required for the due execution,
delivery or performance by any Guarantor or any of its Subsidiaries of this
Guaranty or any other Loan Document to which it is a party, or for such
Guarantor's or such other Obligor's participation in the consummation of the
Transaction, except as have been duly obtained or made and are in full force and
effect. No Guarantor or any of its Subsidiaries is an "investment company"
within the meaning of the Investment Company Act of 1940, as amended, or a
"holding company", or a "subsidiary company" of a "holding company", or an
"affiliate" of a "holding company" or of a "subsidiary company" of a "holding
company", within the meaning of the Public Utility Holding Company Act of 1935,
as amended.
SECTION 3.5. Validity, etc. This Guaranty and each other Loan Document
executed, or to be executed, by any Guarantor or any of its Subsidiaries, as the
case may be, constitutes, or will on the due execution and delivery thereof
constitute, the legal, valid and binding obligations of such Guarantor or such
other Obligor enforceable in accordance with their respective terms.
ARTICLE IV
COVENANTS, ETC.
SECTION 4.1. Affirmative Covenants. Each Guarantor covenants and agrees
that, until all Letters of Credit have terminated or expired, all Rate
Protection Agreements have terminated, all Commitments have terminated, all
Obligations have been paid in full in cash and all
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obligations of such Guarantor hereunder shall have been paid in full in cash,
such Guarantor will, and will cause each of its Subsidiaries to, perform, comply
with and be bound by all the agreements, covenants and obligations contained in
the Credit Agreement applicable to such Guarantor, such Subsidiary or their
respective properties. Each such agreement, covenant and obligation contained in
the Credit Agreement and all related definitions and ancillary provisions are
hereby incorporated into this Guaranty as though specifically set forth herein.
ARTICLE V
MISCELLANEOUS PROVISIONS
SECTION 5.1. Loan Document. This Guaranty is a Loan Document executed
pursuant to the Credit Agreement and shall (unless otherwise expressly indicated
herein) be construed, administered and applied in accordance with the terms and
provisions thereof.
SECTION 5.2. Binding on Successors, Transferees and Assigns; Assignment.
In addition to, and not in limitation of, Section 2.8, this Guaranty shall be
binding upon each Guarantor and its successors, transferees and assigns and
shall inure to the benefit of and be enforceable by each Secured Party and each
holder of a Note and their respective successors, transferees and assigns (to
the fullest extent provided pursuant to Section 2.8); provided, however, that no
Guarantor may assign any of its obligations hereunder without the prior written
consent of all Lenders.
SECTION 5.3. Amendments, etc. No amendment to or waiver of any provision
of this Guaranty, nor consent to any departure by any Guarantor herefrom, shall
in any event be effective unless the same shall be in writing and signed by the
Administrative Agent (on behalf of the Lenders or the Required Lenders, as the
case may be) and then such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given.
SECTION 5.4. Notices. All notices and other communications provided for
hereunder shall be in writing and mailed or telecopied or delivered, if to a
Guarantor, to such Guarantor in care of the Borrower at the address of the
Borrower specified in the Credit Agreement, and, if to the Administrative Agent,
to the Administrative Agent at the address of the Administrative Agent specified
in the Credit Agreement, or as to any party, at such other address as shall be
designated by such party in a written notice to the Agent or the Guarantors (in
care of the Borrower), as the case may be, complying as to delivery with the
terms of this Section. All such notices and other communications, if mailed and
properly addressed with postage prepaid or if properly addressed and sent by
pre-paid courier service, shall be deemed given when received; any such notice
or communication, if transmitted by facsimile, shall be deemed given when the
confirmation thereof is received by the transmitter.
SECTION 5.5. Additional Guarantors. Upon the execution and delivery by any
other
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Person of an instrument in the form of Annex I hereto, such Person shall become
a "Guarantor" hereunder with the same force and effect as if originally named as
a Guarantor herein. The execution and delivery of any such instrument shall not
require the consent of any other Guarantor hereunder. The rights and obligations
of each Guarantor hereunder shall remain in full force and effect
notwithstanding the addition of any new Guarantor as a party to this Guaranty.
SECTION 5.6. No Waiver; Remedies. In addition to, and not in limitation
of, Section 2.3 and Section 2.5, no failure on the part of any Secured Party or
any holder of a Note to exercise, and no delay in exercising, any right
hereunder shall operate as a waiver thereof; nor shall any single or partial
exercise of any right hereunder preclude any other or further exercise thereof
or the exercise of any other right. The remedies herein provided are cumulative
and not exclusive of any remedies provided by law.
SECTION 5.7. Captions. Section captions used in this Guaranty are for
convenience of reference only, and shall not affect the construction of this
Guaranty.
SECTION 5.8. Setoff. In addition to, and not in limitation of, any rights
of any Secured Party or any holder of a Note under applicable law, each Secured
Party and each such holder shall, upon the occurrence of any Default described
in any of clauses (a) through (d) of Section 8.1.9 of the Credit Agreement or,
with the consent of the Required Lenders, upon the occurrence of any Event of
Default, have the right to appropriate and apply to the payment of the
obligations of any Guarantor owing to it hereunder, whether or not then due, and
such Guarantor hereby grants to each Secured Party and each such holder a
continuing security interest in, any and all balances, credits, deposits,
accounts or moneys of such Guarantor then or thereafter maintained with such
Secured Party, or such holder or any agent or bailee for such Secured Party or
such holder; provided, however, that any such appropriation and application
shall be subject to the provisions of Section 4.8 of the Credit Agreement.
SECTION 5.9. Severability. Wherever possible each provision of this
Guaranty shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Guaranty shall be prohibited by or
invalid under such law, such provision shall be ineffective to the extent of
such prohibition or invalidity, without invalidating the remainder of such
provision or the remaining provisions of this Guaranty.
SECTION 5.10. Governing Law, Entire Agreement, etc. THIS GUARANTY SHALL BE
DEEMED TO BE A CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE
STATE OF NEW YORK. THIS GUARANTY AND THE OTHER LOAN DOCUMENTS CONSTITUTE THE
ENTIRE UNDERSTANDING AMONG THE PARTIES HERETO WITH RESPECT TO THE SUBJECT MATTER
HEREOF AND SUPERSEDE ANY PRIOR AGREEMENTS, WRITTEN OR ORAL, WITH RESPECT
THERETO.
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SECTION 5.11. Forum Selection and Consent to Jurisdiction. ANY LITIGATION
BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS GUARANTY OR
ANY OTHER LOAN DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS
(WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY SECURED PARTY OR ANY GUARANTOR
RELATING THERETO SHALL BE BROUGHT AND MAINTAINED EXCLUSIVELY (TO THE EXTENT
PERMITTED UNDER APPLICABLE LAW) IN THE COURTS OF THE STATE OF NEW YORK, OR IN
THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, IN EACH
CASE LOCATED IN NEW YORK COUNTY OF THE STATE OF NEW YORK; PROVIDED, HOWEVER,
THAT ANY SUIT SEEKING ENFORCEMENT AGAINST ANY COLLATERAL OR OTHER PROPERTY MAY
BE BROUGHT, AT THE ADMINISTRATIVE AGENT'S OPTION, IN THE COURTS OF ANY
JURISDICTION WHERE SUCH COLLATERAL OR OTHER PROPERTY MAY BE FOUND. EACH
GUARANTOR HEREBY EXPRESSLY AND IRREVOCABLY SUBMIT TO THE JURISDICTION OF THE
COURTS OF THE STATE OF NEW YORK, AND OF THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF NEW YORK, IN EACH CASE LOCATED IN NEW YORK COUNTY OF THE
STATE OF NEW YORK, FOR THE PURPOSE OF ANY SUCH LITIGATION AS SET FORTH ABOVE AND
IRREVOCABLY AGREES TO BE BOUND BY ANY JUDGMENT RENDERED THEREBY IN CONNECTION
WITH SUCH LITIGATION. EACH GUARANTOR IRREVOCABLY CONSENTS TO THE SERVICE OF
PROCESS BY REGISTERED MAIL, POSTAGE PREPAID, OR BY PERSONAL SERVICE WITHIN OR
WITHOUT THE STATE OF NEW YORK. EACH GUARANTOR HEREBY EXPRESSLY AND IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH ANY OF THEM
MAY HAVE OR HEREAFTER MAY HAVE TO THE LAYING OF VENUE OF ANY SUCH LITIGATION
BROUGHT IN ANY SUCH COURT REFERRED TO ABOVE AND ANY CLAIM THAT ANY SUCH
LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. TO THE EXTENT THAT ANY
GUARANTOR HAS OR HEREAFTER MAY ACQUIRE ANY IMMUNITY FROM JURISDICTION OF ANY
COURT OF FROM ANY LEGAL PROCESS (WHETHER THROUGH SERVICE OR NOTICE, ATTACHMENT
PRIOR TO JUDGMENT, ATTACHMENT IN AID OF EXECUTION OR OTHERWISE) WITH RESPECT TO
ITSELF OR ITS PROPERTY, EACH GUARANTOR HEREBY IRREVOCABLY WAIVES (TO THE EXTENT
PERMITTED UNDER APPLICABLE LAW) SUCH IMMUNITY IN RESPECT OF ITS OBLIGATIONS
UNDER THIS GUARANTY AND THE OTHER LOAN DOCUMENTS.
SECTION 5.12. Waiver of Jury Trial. THE SECURED PARTIES AND THE GUARANTORS
HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHTS THEY MAY HAVE
TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF,
UNDER OR IN CONNECTION WITH, THIS GUARANTY OR ANY OTHER LOAN DOCUMENT, OR ANY
COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER
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ORAL OR WRITTEN) OR ACTIONS OF THE SECURED PARTIES OR THE GUARANTORS RELATING
THERETO. THE GUARANTORS ACKNOWLEDGE AND AGREE THAT EACH SUCH PERSON HAS RECEIVED
FULL AND SUFFICIENT CONSIDERATION FOR THIS PROVISION (AND EACH OTHER PROVISION
OF EACH OTHER LOAN DOCUMENT TO WHICH SUCH PERSON IS A PARTY) AND THAT THIS
PROVISION IS A MATERIAL INDUCEMENT FOR THE SECURED PARTIES ENTERING INTO THE
CREDIT AGREEMENT, THIS GUARANTY AND EACH SUCH OTHER LOAN DOCUMENT.
SECTION 5.13. Counterparts. This Guaranty may be executed by the parties
hereto in several counterparts, each of which shall be deemed to be an original
and all of which shall constitute together but one and the same agreement.
SECTION 5.14. Letters of Credit. Not in limitation of the Borrower's
obligation to pay all Reimbursement Obligations, but in addition thereto, each
Guarantor that is an account party of any Letter of Credit hereby agrees to be
bound by all provisions in the Credit Agreement and each other Loan Document
relating to the payment of all Reimbursement Obligations, fees, costs and
indemnifications in respect of such Letter of Credit as if such Guarantor were a
party to the Credit Agreement or such other Loan Document.
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IN WITNESS WHEREOF, the parties hereto have caused this Guaranty to be
duly executed and delivered by their respective officers thereunto duly
authorized as of the date first above written.
[NAME OF GUARANTOR], a ________
________
By
Name:
Title:
[NAME OF GUARANTOR], a ________
________
By
Name:
Title:
[NAME OF GUARANTOR], a ________
________
By
Name:
Title:
ACCEPTED BY:
FLEET NATIONAL BANK,
as Administrative Agent
By
Name:
Title:
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ANNEX I to
Subsidiary Guaranty
SUPPLEMENT NO. ___ dated as of ________ __, ____
(this "Supplement"), to the Subsidiary Guaranty, dated
as of ________ __, ____ (as amended, supplemented,
amended and restated or otherwise modified from time to
time, the "Guaranty"), among the initial signatories
thereto and each other Person which from time to time
thereafter became a party thereto pursuant to Section
5.5 thereof (each, individually, a "Guarantor", and,
collectively, the "Guarantors"), in favor of the
Secured Parties (as defined in the Guaranty).
W I T N E S S E T H:
WHEREAS, capitalized terms used herein and not otherwise defined herein
shall have the meanings assigned to such terms in the Guaranty; and
WHEREAS, the Guaranty provides that additional parties may become
Guarantors under the Guaranty by execution and delivery of an instrument in the
form of this Supplement; and
WHEREAS, pursuant to the provisions of Section 5.5 of the Guaranty, the
undersigned is becoming an Additional Guarantor under the Guaranty; and
WHEREAS, the undersigned desires to become a Guarantor under the Guaranty
in order to induce the Secured Parties to continue to make Credit Extensions
under the Credit Agreement as consideration therefor;
NOW, THEREFORE, the undersigned agrees, for the benefit of each Secured
Party, as follows:
SECTION 1. In accordance with the Guaranty, the undersigned by its
signature below becomes a Guarantor under the Guaranty with the same force and
effect as if it were an original signatory thereto as a Guarantor and the
undersigned hereby (a) agrees to all the terms and provisions of the Guaranty
applicable to it as a Guarantor thereunder and (b) represents and warrants that
the representations and warranties made by it as a Guarantor thereunder are true
and correct on and as of the date hereof. In furtherance of the foregoing, each
reference to a "Guarantor" or an "Additional Guarantor" in the Guaranty shall be
deemed to include the undersigned.
<PAGE>
SECTION 2. The undersigned hereby represents and warrants that this
Supplement has been duly authorized, executed and delivered by the undersigned
and constitutes a legal, valid and binding obligation of the undersigned,
enforceable against it in accordance with its terms.
SECTION 3. Except as expressly supplemented hereby, the Guaranty shall
remain in full force and effect in accordance with its terms.
SECTION 4. In the event any one or more of the provisions contained in
this Supplement should be held invalid, illegal or unenforceable in any respect,
the validity, legality and enforceability of the remaining provisions contained
herein and in the Guaranty shall not in any way be affected or impaired.
SECTION 5. Without limiting the provisions of the Credit Agreement (or any
other Loan Document, including the Guaranty), the undersigned agrees to
reimburse the Administrative Agent for its reasonable out-of-pocket expenses in
connection with this Supplement, including reasonable attorneys' fees and
expenses of the Administrative Agent.
SECTION 6. THIS SUPPLEMENT SHALL BE DEEMED TO BE A CONTRACT MADE UNDER AND
GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK.
SECTION 7. WITHOUT LIMITING THE EFFECT OF SECTION 5.11 OF THE GUARANTY,
THE SECURED PARTIES AND THE UNDERSIGNED HEREBY EXPRESSLY AND IRREVOCABLY SUBMIT
TO THE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK, AND OF THE UNITED
STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, IN EACH CASE
LOCATED IN NEW YORK COUNTY OF THE STATE OF NEW YORK, FOR THE PURPOSE OF ANY SUCH
LITIGATION AS SET FORTH ABOVE AND IRREVOCABLY AGREES TO BE BOUND BY ANY JUDGMENT
RENDERED THEREBY IN CONNECTION WITH SUCH LITIGATION. THE UNDERSIGNED IRREVOCABLY
CONSENTS TO THE SERVICE OF PROCESS BY REGISTERED MAIL, POSTAGE PREPAID, OR BY
PERSONAL SERVICE WITHIN OR WITHOUT THE STATE OF NEW YORK. THE UNDERSIGNED HEREBY
EXPRESSLY AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY
OBJECTION WHICH IT MAY HAVE OR HEREAFTER MAY HAVE TO THE LAYING OF VENUE OF ANY
SUCH LITIGATION BROUGHT IN ANY SUCH COURT REFERRED TO ABOVE AND ANY CLAIM THAT
ANY SUCH LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. TO THE EXTENT
THAT THE UNDERSIGNED HAS OR HEREAFTER MAY ACQUIRE ANY IMMUNITY FROM JURISDICTION
OF ANY COURT OF FROM ANY LEGAL PROCESS (WHETHER THROUGH SERVICE OR NOTICE,
ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT IN AID OF EXECUTION OR OTHERWISE) WITH
RESPECT TO
-14-
<PAGE>
ITSELF OR ITS PROPERTY, THE UNDERSIGNED HEREBY IRREVOCABLY WAIVES (TO THE EXTENT
PERMITTED UNDER APPLICABLE LAW) SUCH IMMUNITY IN RESPECT OF ITS OBLIGATIONS
UNDER THIS SUPPLEMENT, THE GUARANTY AND THE OTHER LOAN DOCUMENTS.
SECTION 8. WITHOUT LIMITING THE EFFECT OF SECTION 5.12 OF THE GUARANTY,
THE SECURED PARTIES AND THE UNDERSIGNED HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVE ANY RIGHTS THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF
ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH,
THIS SUPPLEMENT OR ANY OTHER LOAN DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF
DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF THE SECURED PARTIES
OR THE UNDERSIGNED RELATING THERETO. THE UNDERSIGNED ACKNOWLEDGES AND AGREES
THAT IT HAS RECEIVED FULL AND SUFFICIENT CONSIDERATION FOR THIS PROVISION (AND
EACH OTHER PROVISION OF EACH OTHER LOAN DOCUMENT TO WHICH IT IS A PARTY) AND
THAT THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE SECURED PARTIES ENTERING
INTO THE CREDIT AGREEMENT, THIS SUPPLEMENT, THE GUARANTY AND EACH SUCH OTHER
LOAN DOCUMENT.
SECTION 9. This Supplement hereby incorporates by reference the provisions
of the Guaranty, which provisions are deemed to be a part hereof, and this
Supplement shall be deemed to be a part of the Guaranty.
SECTION 10. This Supplement may be executed by the parties hereto in
several counterparts, each of which shall be deemed to be an original and all of
which shall constitute together but one and the same agreement.
-15-
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Supplement to the
Guaranty to be duly executed and delivered by their respective officers
thereunto duly authorized as of the day and year first above written.
[ADDITIONAL GUARANTOR], a
________ ________
By
Name:
Title:
ACCEPTED BY:
FLEET NATIONAL BANK,
as Administrative Agent
By
Name:
Title:
-16-
<PAGE>
EXHIBIT I
to Second Amended and Restated
Credit Agreement
PERFECTION CERTIFICATE
The undersigned, _______________, the _______________ of Duane Reade Inc.
(the "Company"), a Delaware corporation and a general partner of Duane Reade, a
New York general partnership (the "Borrower"), hereby certifies with reference
to the Second Amended and Restated Credit Agreement dated as of March 17, 1999,
amending and restating in its entirety that certain Amended and Restated Credit
Agreement, dated as of September 11, 1998 (as amended prior to the Amendment
Effective Date) (as so amended and restated, and together with all amendments,
supplements, restatements and other modifications, if any, from time to time
thereafter made thereto, the "Credit Agreement"), among the Borrower, the
Company and the other Parent Guarantor named therein, the various financial
institutions as are or may become parties thereto (the "Lenders"), DLJ Capital
Funding, Inc., as Syndication Agent, Fleet National Bank, as Administrative
Agent and Credit Lyonnais New York Branch, as Documentation Agent (terms defined
therein being used herein as defined in the Credit Agreement), to each of the
Agents and each Lender as follows:
1. Names. (a) The exact legal name of the Company and each of its
Subsidiaries that are not Foreign Subsidiaries as such names appear in their
respective certificates of incorporation, agreements of partnership or other
similar instruments of organization, is as follows:
(b) Set forth below is each other legal name that the Company and
each of its Subsidiaries that are not Foreign Subsidiaries has had since
its organization together with the date of the relevant change:
(c) Except as set forth in item (b) above, none of the Company or
any of its Subsidiaries that are not Foreign Subsidiaries has changed its
identity or corporate structure in any way within the past five years.
(d) The following is a list of all other names (including trade
names or similar appellations) used by the Company or any of its
Subsidiaries that are not Foreign Subsidiaries or any of their divisions
or other business
<PAGE>
units at any time during the past five years:
2. Taxpayer Identification Numbers. (a) The taxpayer identification
numbers of the Company and each of its Subsidiaries that are not Foreign
Subsidiaries are as follows:
(b) Set forth below is each other taxpayer identification number the
Company and each of its Subsidiaries that are not Foreign Subsidiaries has
had since its organization together with the date of the relevant change:
3. Current Locations. (a) The chief executive office and principal place
of business of the Company and each of its Subsidiaries that are not Foreign
Subsidiaries is located at the following address:
(b) The following are all locations where the Company and each of
its Subsidiaries that are not Foreign Subsidiaries maintain any chattel
paper or any books or records relating to any accounts receivable:
(c) The following are all locations where the Company and each of
its Subsidiaries that are not Foreign Subsidiaries maintain any lock-box
accounts:
(d) The following, listed on a state-by-state basis, are all the
places of business of the Company and each of its Subsidiaries that are
not Foreign Subsidiaries not identified above (identify whether location
is owned or leased by the Company or such Subsidiary):
(e) The following are all the locations where the Company and each
of its Subsidiaries that are not Foreign Subsidiaries maintain any
Equipment not identified above:
(f) The following are the names and addresses of all persons other
than the Company and its Subsidiaries that are not Foreign Subsidiaries
which have possession of any of the Company's or any of such Subsidiaries'
Equipment:
<PAGE>
(g) The following are all the locations where the Company and each
of its Subsidiaries that are not Foreign Subsidiaries maintain any
Inventory not identified above (identify whether locations are owned by
the Company or such Subsidiary, leased by the Company or such Subsidiary
or are public warehouses):
(h) The following are the names and addresses of all persons other
than the Company and its Subsidiaries that are not Foreign Subsidiaries
which have possession of any of the Company's or any of such Subsidiaries'
Inventory (explain relationship of such persons to the Company or such
Subsidiary, e.g., consignee, etc.)
4. Mobile Goods. Does the Company or any Subsidiary that is a not Foreign
Subsidiary own railroad cars? Yes ___ No ___. Does the Company or any Subsidiary
that is a Not Foreign Subsidiary own any aircraft? Yes ___ No ___.
5. Consigned Inventory. Approximate dollar amount of Inventory of the
Company and Subsidiaries that are not Foreign Subsidiaries consigned to third
parties at any time. $__________.
6. Inventory Located Outside of the United States Approximate dollar
amount of Inventory of the Company and Subsidiaries that are not Foreign
Subsidiaries located outside of the United States of America at any time.
$__________.
7. Unusual Transactions. All Receivables have been originated by the
Company and its Subsidiaries that are Not Foreign Subsidiaries and all Inventory
has been acquired by the Company and its Subsidiaries that are Not Foreign
Subsidiaries in the ordinary course of its business.
8. File Search Reports. Attached hereto as Schedule 8(A) are true copies
of file search reports from the Uniform Commercial Code filing offices where
filings were made to perfect a security interest in any Collateral (as defined
in the relevant Security Agreement). Attached hereto as Schedule 8(B) is a true
copy of each financing statement or other filing identified in such file search
reports.
<PAGE>
IN WITNESS WHEREOF, I have hereunto set my hand this 11th day of
September, 1998.
DUANE READE INC.
By: ____________________________
Name: William J. Tennant
Title: Senior Vice President
<PAGE>
SCHEDULE 8(A)
File Search Reports
<PAGE>
SCHEDULE 8(B)
Financing Statements or Other Filings
EXECUTION COPY
AMENDMENT AGREEMENT TO CREDIT AGREEMENT
Amendment Agreement to Credit Agreement, dated as of March 17, 1999 (this
"Amendment Agreement"), among DUANE READE, a New York general partnership (the
"Borrower"), DUANE READE INC., a Delaware corporation ("Holdings"), DRI I INC.,
a Delaware corporation ("DRI I" and, together with Holdings, collectively, the
"Parent Guarantors"), the Lenders parties hereto, DLJ CAPITAL FUNDING, INC., as
syndication agent (in such capacity, the "Syndication Agent") for the Lenders,
FLEET NATIONAL BANK, as administrative agent (in such capacity, the
"Administrative Agent") for the Lenders, and CREDIT LYONNAIS NEW YORK BRANCH, as
the documentation agent (in such capacity, the "Documentation Agent") for the
Lenders.
W I T N E S S E T H:
WHEREAS, the Borrower, the Parent Guarantors, various financial
institutions (the "Lenders"), the Agents and the Documentation Agent have
heretofore entered into the Amended and Restated Credit Agreement, dated as of
September 11, 1998 (as amended prior to the date hereof, the "Existing Credit
Agreement"); and
WHEREAS, the Borrower and Parent Guarantors have requested, and the
Lenders have agreed, subject to the terms and conditions hereinafter set forth,
to amend and restate the Existing Credit Agreement (together with all schedules
and exhibits thereto) in its entirety in the form of the Second Amended and
Restated Credit Agreement (as defined below);
NOW, THEREFORE, in consideration of the agreements herein contained, the
parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. Certain Definitions. The following terms (whether or not
underscored) when used in this Amendment shall have the following meanings (such
meanings to be equally applicable to the singular and plural form thereof):
"Amendment Agreement" is defined in the preamble.
"Amendment Effective Date" is defined in Section 3.1.
<PAGE>
"Borrower" is defined in the preamble.
"Credit Agreement" is defined in the first recital.
"DRI I" is defined in the preamble.
"Existing Credit Agreement" is defined in the first recital.
"Holdings" is defined in the preamble.
"Parent Guarantors" is defined in the preamble.
"Second Amended and Restated Credit Agreement" is defined in Section 2.1.
SECTION 1.2. Other Definitions. Terms for which meanings are provided in
the Second Amended and Restated Credit Agreement are, unless otherwise defined
herein or the context otherwise requires, used in this Amendment Agreement with
such meanings.
ARTICLE II
AMENDMENT AND RESTATEMENT
OF EXISTING CREDIT AGREEMENT
SECTION 2.1. Amendment and Restatement of Existing Credit Agreement. On
the Amendment Effective Date, the Existing Credit Agreement (including all
schedules and exhibits thereto) shall be and is hereby amended and restated to
read in its entirety as set forth in Annex I hereto (as set forth in such Annex
I, the "Second Amended and Restated Credit Agreement"), and as so amended and
restated is hereby ratified, approved and confirmed in each and every respect;
provided, however, that except for purposes of calculating the Total Exposure
Amount as used in Section 3.1.12, each of (a) the definition of "Revolving Loan
Commitment Amount" set forth in Section 1.1 of the Second Amended and Restated
Credit Agreement and (b) the Percentages set forth under the column entitled
"Revolving Loan Commitment" in Schedule II thereto will not be deemed to be
amended until all outstanding Existing Revolving Loans have been paid in full
using the proceeds of the Additional Term C Loans. The rights and obligations of
the parties to the Existing Credit Agreement with respect to the period prior to
the Amendment Effective Date shall not be affected by such amendment and
restatement.
ARTICLE III
<PAGE>
CONDITIONS TO EFFECTIVENESS
SECTION 3.1. Amendment Effective Date; Conditions Precedent to Borrowing
of Additional Term C Loans. This Amendment Agreement (and the amendments and
modifications contained herein) shall become effective on the date (the
"Amendment Effective Date") when each of the conditions set forth in this
Article III shall have been fulfilled to the reasonable satisfaction of the
Agents on or before March 17, 1999. The obligation of each Lender having an
Additional Term C Loan Commitment to make an Additional Term C Loan shall be
subject to the prior or concurrent satisfaction of each of the conditions
precedent set forth in this Article in addition to those set forth in Section
5.2 of the Second Amended and Restated Credit Agreement.
SECTION 3.1.1. Execution of Counterparts. The Agents shall have received
executed counterparts of this Amendment Agreement, duly executed and delivered
on behalf of each of the Borrower, the Parent Guarantors and the Required
Lenders (which shall include (a) those Lenders holding greater than 50% of the
aggregate amount of the Loans outstanding under each Tranche and (b) each Lender
that has an Additional Term C Loan Commitment).
SECTION 3.1.2. Resolutions, etc. The Agents shall have received, with a
copy for each Lender, from each Obligor a certificate, dated the Amendment
Effective Date, of its Secretary, Assistant Secretary or general partners, as
applicable, as to (i) resolutions of its Board of Directors or all partnership
action, as applicable, then in full force and effect authorizing the execution,
delivery and performance of this Amendment Agreement, the Second Amended and
Restated Credit Agreement and each other Loan Document to be executed by it,
(ii) the incumbency and signatures of those of its officers or general partners,
as applicable, authorized to act with respect to this Amendment Agreement, the
Second Amended and Restated Credit Agreement and each such other Loan Document
executed by it and (iii) the full force and validity of its Organic Documents
and true and complete copies of all amendments thereto since September 11, 1998,
upon which certificate each Agent, the Documentation Agent, the Issuer and each
Lender may conclusively rely until, in the case of clause (ii) above, it shall
have received a further certificate of the Secretary, Assistant Secretary or
general partners, as applicable, of such Obligor canceling or amending such
prior certificate.
SECTION 3.1.3. Delivery of Amendment Effective Date Certificate. The
Agents shall have received executed counterparts of the Amendment Effective Date
Certificate, dated the Amendment Effective Date and duly executed and delivered
by the chief executive, financial or accounting (or equivalent thereof)
Authorized Officer of Holdings, in which certificate Holdings shall agree and
acknowledge that the statements made therein shall be deemed to be true and
correct representations and warranties of Holdings made as of such date under
this Amendment Agreement, and, at the time such certificate is delivered, such
statements shall in fact be true and correct in all
<PAGE>
material respects.
SECTION 3.1.4. Delivery of Notes. The Agents shall have received, for the
account of each Lender that shall have requested a replacement Note not less
than two Business Days prior to the Amendment Effective Date, a replacement Note
in respect of each applicable Tranche duly executed and delivered by an
Authorized Officer of the Borrower (and each such replacement Note shall
represent an amendment and restatement of, and shall be issued in substitution
and exchange for, and not in satisfaction or payment of, the original Note (as
defined in, and issued pursuant to, the Existing Credit Agreement, an "Original
Note") of such Lender and the indebtedness (together with the obligation to pay
accrued interest thereon) originally evidenced by such Lender's Original Notes
which are now to be evidenced by such Lender's new replacement Notes delivered
pursuant to this Amendment Agreement shall be (and the Borrower hereby
acknowledges and agrees that such indebtedness is) a continuing indebtedness,
and nothing herein contained shall be construed to deem any such Original Notes
paid, or to release or terminate any Lien or security interest given to secure
such Original Notes, which Liens and security interests shall continue to secure
such indebtedness as evidenced by such Lender's new Notes).
SECTION 3.1.5. Borrowing Request. The Administrative Agent shall have
received a Borrowing Request duly executed and delivered by the Borrower
pursuant to which Additional Term C Loans are made to the Borrower for the
purposes set forth in the Section 7.1.9 of the Second Amended and Restated
Credit Agreement.
SECTION 3.1.6. Financial Information, etc. The Agents shall have received,
with counterparts for each Lender, (a) (i) audited consolidated financial
statements of (A) Holdings and its Subsidiaries and Daboco and its Subsidiaries
for the Fiscal Years ended on December 30, 1995, December 28, 1996 and December
27, 1997 and (B) Rock Bottom and its Subsidiaries for the Fiscal Years ended on
January 31, 1996, January 31, 1997 and January 31, 1998, (ii) unaudited
consolidated financial statements of (A) Holdings and its Subsidiaries and
Daboco and its Subsidiaries for the Fiscal Quarters ended on March 28, 1998,
June 27, 1998, September 26, 1998 and December 26, 1998 and (B) Rock Bottom and
its Subsidiaries for the Fiscal Quarters ended on April 30, 1998 and (iii)
unaudited consolidated financial statements of Holdings and its Subsidiaries and
Borrower and its Subsidiaries for the fiscal month ended on January 23, 1999;
and (b) a pro forma consolidated balance sheets of Holdings and its Subsidiaries
and the Borrower and its Subsidiaries, as at December 26, 1998 (the "Pro Forma
Balance Sheets"), certified by the chief financial or accounting Authorized
Officers of Holdings and the Borrower, respectively, giving effect to the
consummation of the New Transaction.
SECTION 3.1.7. Solvency The Agents shall have received executed
counterparts of the Solvency Certificates, dated as of the Amendment Effective
Date, duly executed and delivered by the chief financial or accounting
Authorized Officer of each of Holdings and the Borrower.
<PAGE>
SECTION 3.1.8. Litigation. There shall exist no pending or threatened
material litigation, proceedings or investigations which (x) contests the
consummation of the New Transaction or the legality or validity of the Second
Amended and Restated Credit Agreement, any other Loan Document or any Material
Document or (y) could reasonably be expected to have a Material Adverse Effect.
SECTION 3.1.9. Material Adverse Change. Except as set forth in Item 6.6
("Material Adverse Change") of the Disclosure Schedule, there shall have
occurred no material adverse change in the business, assets, debt service
capacity, tax position, environmental liability, financial condition,
operations, properties or prospects of the Borrower and its Subsidiaries, taken
as a whole, or Holdings and its Subsidiaries, taken as a whole, in each case
since December 27, 1997.
SECTION 3.1.10. Approvals. All necessary governmental, shareholders' and
third-party approvals in connection with the New Transaction, the financing
contemplated hereby, the continued operations of any Parent Guarantor, the
Borrower and each of their respective Subsidiaries and the execution, delivery
and performance of this Amendment Agreement, the Second Amended and Restated
Credit Agreement and the other Loan Documents shall have been duly obtained and
all applicable waiting periods shall have expired without, in all such cases,
any action being taken or threatened by any competent authority that would
restrain, prevent or otherwise imposes adverse conditions on the New
Transaction, the financing contemplated hereby or the continued operations of
any Parent Guarantor, the Borrower or any of their respective Subsidiaries.
SECTION 3.1.11. Opinions of Counsel. The Agents shall have received an
opinion, dated the Amendment Effective Date and addressed to the Agents, the
Documentation Agent and all of the Lenders from Latham & Watkins, special New
York counsel to each of the Obligors, substantially in the form of Exhibit K to
the Second Amended and Restated Credit Agreement.
SECTION 3.1.12. Amendment Fee. The Administrative Agent shall have
received, for the account of each Lender signatory hereto prior to or on the
Amendment Effective Date, an amendment fee equal to .125% of each such Lender's
Percentage of the Total Exposure Amount.
SECTION 3.1.13. Fees, Expenses, etc. The Administrative Agent shall have
received for its own account or for the account of each other Agent or each
Lender, as the case may be, all fees, costs and expenses due and payable
pursuant to Sections 3.3 and 11.3 of the Second Amended and Restated Credit
Agreement to the extent then invoiced.
SECTION 3.1.14. Satisfactory Legal Form. All documents executed or
<PAGE>
submitted pursuant hereto by or on behalf of the Borrower or any of its
Subsidiaries or any other Obligors shall be satisfactory in form and substance
to the Agents and their counsel. The Agents and their counsel shall have
received all information, approvals, opinions, documents or instruments as the
Agents or their counsel may reasonably request.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.1. Representations and Warranties. In order to induce the
Lenders to execute and deliver this Amendment Agreement, each of the Borrower
and each Parent Guarantor hereby represents and warrants as set forth below:
(a) The execution, delivery and performance by each of the Borrower,
each Parent Guarantor and each of their respective Subsidiaries of this
Amendment Agreement, the Second Amended and Restated Credit Agreement, the
Notes and each other Loan Document executed or to be executed by it are
within the Borrower's and each such Obligor's corporate or partnership
powers, have been duly authorized by all necessary corporate or
partnership action, and do not (i) contravene the Borrower's or any such
Obligor's Organic Documents, (ii) contravene any contractual restriction,
law or governmental regulation or court decree or order binding on or
affecting the Borrower or any such Obligor, or (iii) result in, or require
the creation or imposition of, any Lien on any of the Borrower's or any
other Obligor's properties, except pursuant to the terms of a Loan
Document.
(b) No authorization or approval or other action by, and no notice
to or filing with, any governmental authority or regulatory body or other
Person, is required for the due execution, delivery or performance by any
of the Borrower, any Parent Guarantor or any of their respective
Subsidiaries of this Amendment Agreement, the Second Amended and Restated
Credit Agreement, the Notes, any other Loan Document to which it is a
party, except as have been duly obtained or made and are in full force and
effect.
(c) This Amendment Agreement and the Second Amended and Restated
Credit Agreement constitute, and the Notes and each other Loan Document
executed, or to be executed, by any of the Borrower, any Parent Guarantor
or any of their respective Subsidiaries, as the case may be, constitutes,
or will on the due execution and delivery thereof constitute, the legal,
valid and binding obligations of the Borrower and such other Obligor
enforceable in accordance with their respective terms.
(d) Each Obligor reaffirms as of the Amendment Effective Date such
<PAGE>
Person's respective covenants and agreements contained in each Security
Agreement and each Pledge Agreement to which such Person is a party,
including, in each case, as such covenants and agreements may be modified
by the Amendment Agreement and the Second Amended and Restated Credit
Agreement. Each such Obligor further confirms that each such Loan Document
to which such Person is a party is and shall continue to be in full force
and effect and the same are hereby ratified, approved and confirmed in all
respects, except that upon the occurrence of the Amendment Effective Date,
all references in such Loan Documents to the "Credit Agreement", "Loan
Documents", "thereunder", "thereof", "therein" or words of like or similar
import shall mean and be a reference to the Second Amended and Restated
Credit Agreement and the Loan Documents (as such term is defined in the
Second Amended and Restated Credit Agreement).
(e) After giving effect to this Amendment Agreement, neither the
amendment and restatement of the Existing Credit Agreement effected
pursuant to this Amendment Agreement nor the execution, delivery,
performance or effectiveness of this Amendment Agreement, the Second
Amended and Restated Credit Agreement or any Loan Document impairs the
validity, effectiveness or priority of the Liens granted pursuant to each
Pledge Agreement and each Security Agreement (as such terms are defined in
the Existing Credit Agreement, collectively, the "Security Documents"),
and such Liens continue unimpaired with the same priority to secure
repayment of all Obligations (including any Obligations arising in
connection with the making of the Additional Term C Loan Commitments or
the Additional Term C Loans), whether heretofore or hereafter incurred.
Neither the amendment and restatement of the Existing Credit Agreement
effected pursuant to this Amendment Agreement nor the execution, delivery,
performance or effectiveness of this Amendment Agreement or the Second
Amended and Restated Credit Agreement requires that any new filings be
made or other action taken to perfect or to maintain the perfection of
such Liens. Under the foregoing circumstances, the position of the Lenders
with respect to such Liens, the Collateral (as defined in the Security
Documents) in which a security interest was granted pursuant to the
Security Documents, and the ability of the Administrative Agent to realize
upon such Liens pursuant to the terms of the Security Documents have not
been adversely affected in any material respect by the amendment and
restatement of the Existing Credit Agreement effected pursuant to this
Amendment Agreement or by the execution, delivery, performance or
effectiveness of this Amendment Agreement or the Second Amended and
Restated Credit Agreement.
(f) Both before and immediately after giving effect to this
Amendment Agreement, no Default has (or will have) occurred and is (or
will be) continuing, and all of the statements set forth in Section 5.2.1
of the Second Amended and Restated Credit Agreement are true and correct.
<PAGE>
ARTICLE V
MISCELLANEOUS
SECTION 5.1. Cross-References. References in this Amendment Agreement to
any Article or Section are, unless otherwise specified or otherwise required by
the context, to such Article or Section of this Amendment Agreement.
SECTION 5.2. Loan Document Pursuant to Credit Agreement. This Amendment
Agreement is a Loan Document executed pursuant to the Second Amended and
Restated Credit Agreement and shall be construed, administered and applied in
accordance with all of the terms and provisions of the Second Amended and
Restated Credit Agreement.
SECTION 5.3. Successors and Assigns. This Amendment Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns.
SECTION 5.4. Counterparts. This Amendment Agreement may be executed by the
parties hereto in several counterparts, each of which when executed and
delivered shall be deemed to be an original and all of which shall constitute
together but one and the same agreement.
SECTION 5.5. Governing Law. THIS AMENDMENT AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK.
SECTION 5.6. Asset Sales. The Lenders hereby acknowledge and agree that
the Borrower and its Subsidiaries may sell the assets listed on Schedule I
hereto in accordance with the terms of Section 7.2.9 of the Second Amended and
Restated Credit Agreement; provided that up to $8,000,000 of Net Disposition
Proceeds received from such assets shall not constitute Net Disposition Proceeds
for purposes of clause (d)(ii) of such Section.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
<PAGE>
IN WITNESS WHEREOF, the signatories hereto have caused this Amendment
Agreement to be executed by their respective officers thereunto duly authorized
as of the day and year first above written.
BORROWER:
DUANE READE
By Duane Reade Inc., a general partner
By /s/ William J. Tennant
-------------------------------------
Title: Senior Vice President
and Chief Financial Officer
By DRI I Inc., a general partner
By /s/ William J. Tennant
-------------------------------------
Title: Senior Vice President
and Chief Financial Officer
PARENT GUARANTORS:
DUANE READE INC.
By /s/ William J. Tennant
-------------------------------------
Title: Senior Vice President
and Chief Financial Officer
DRI I INC.
By /s/ William J. Tennant
-------------------------------------
Title: Senior Vice President
and Chief Financial Officer
<PAGE>
DLJ CAPITAL FUNDING, INC., as the
Syndication Agent and as a Lender
By /s/ Authorized Signatory
-------------------------------------
Title:
<PAGE>
FLEET NATIONAL BANK, as the
Administrative Agent and as a Lender
By /s/ Authorized Signatory
-------------------------------------
Title:
<PAGE>
CREDIT LYONNAIS NEW YORK BRANCH, as
the Documentation Agent and as a Lender
By /s/ Authorized Signatory
-------------------------------------
Title:
<PAGE>
LENDERS:
SUMMIT BANK
By /s/ Authorized Signatory
-------------------------------------
Title:
<PAGE>
BHF-BANK AKTIENGESELLSCHAFT
By /s/ Authorized Signatory
-------------------------------------
Title:
By /s/ Authorized Signatory
-------------------------------------
Title:
BALANCED HIGH-YIELD FUND II LTD.,
By: BHF-Bank Aktiengesellschaft, acting
through its New York Branch, as
attorney-in-fact, as Assignee
By /s/ Authorized Signatory
-------------------------------------
Title:
By /s/ Authorized Signatory
-------------------------------------
Title:
<PAGE>
HELLER FINANCIAL, INC.
By /s/ Authorized Signatory
-------------------------------------
Title:
<PAGE>
ORIX USA CORPORATION
By /s/ Authorized Signatory
-------------------------------------
Title:
<PAGE>
OSPREY INVESTMENTS PORTFOLIO
By Citibank, N.A., as Manager
By /s/ Authorized Signatory
-------------------------------------
Title:
GCB INVESTMENT PORTFOLIO,
By: Citibank, N.A.
By /s/ Authorized Signatory
-------------------------------------
Title:
<PAGE>
MORGAN STANLEY DEAN WITTER PRIME
INCOME TRUST
By /s/ Authorized Signatory
-------------------------------------
Title:
<PAGE>
VAN KAMPEN CLO I, LIMITED
By Van Kampen Management, Inc.,
as Collateral Manager
By /s/ Authorized Signatory
-------------------------------------
Title:
VAN KAMPEN SENIOR FLOATING RATE
FUND
By /s/ Authorized Signatory
-------------------------------------
Title:
<PAGE>
Merrill Lynch Global Investment Series:
INCOME STRATEGIES PORTFOLIO
By Merrill Lynch Asset Management, L.P.,
as Investment Advisor
By /s/ Authorized Signatory
-------------------------------------
Title:
MERRILL LYNCH DEBT STRATEGIES
PORTFOLIO
By Merrill Lynch Asset Management, L.P.,
as Investment Advisor
By /s/ Authorized Signatory
-------------------------------------
Title:
MERRILL LYNCH PRIME RATE PORTFOLIO
By Merrill Lynch Asset Management, L.P.
as Investment Advisor
By /s/ Authorized Signatory
-------------------------------------
Title:
DEBT STRATEGIES FUND, INC.
By /s/ Authorized Signatory
-------------------------------------
Title:
MERRILL LYNCH SENIOR FLOATING RATE
FUND, INC.
By /s/ Authorized Signatory
-------------------------------------
Title:
SENIOR HIGH INCOME PORTFOLIO
By /s/ Authorized Signatory
-------------------------------------
Title:
<PAGE>
DEEPROCK & CO.
By: Eaton Vance Management, as Investment
Advisor
By /s/ Authorized Signatory
-------------------------------------
Title:
SENIOR DEBT PORTFOLIO
By: Boston Management and Research, as
Investment Advisor
By /s/ Authorized Signatory
-------------------------------------
Title:
OXFORD STRATEGIC INCOME FUND
By: Eaton Vance Management, as Investment
Advisor
By /s/ Authorized Signatory
-------------------------------------
Title:
<PAGE>
PAM CAPITAL FUNDING LP
By: Highland Capital Management, L.P., as
Collateral Manager
By /s/ Authorized Signatory
-------------------------------------
Title:
<PAGE>
KZH PAMCO
By /s/ Authorized Signatory
-------------------------------------
Title:
<PAGE>
NORSE CBO, LTD.
By: Peterson Capital Management, LLC, as its
Investment Advisor
By: Peterson Capital Advisors, LLC, its
Manager and pursuant to delegated
authority
By /s/ Authorized Signatory
-------------------------------------
Title:
<PAGE>
CAPTIVA III FINANCE LTD., as advised by
Pacific Investment Management Company
By /s/ Authorized Signatory
-------------------------------------
Title:
<PAGE>
CHASE MANHATTAN BANK
By /s/ Authorized Signatory
-------------------------------------
Title:
<PAGE>
ATHENA CDO, Limited
By: Pacific Investment Management Company,
as its Investment Advisor
By: PIMCO Management Inc., a general partner
By /s/ Authorized Signatory
-------------------------------------
Title:
<PAGE>
SCHEDULE I
Assets to be Sold Pursuant to Section 7.2.9
All rights and interests of the Borrower under the leases with respect to the
following real property:
600 N. Wellwood Avenue
Lindenhurst, New York
491 Bellmore Avenue
East Meadow, New York
1502-B Deer Park Avenue
North Babylon, New York
668 West Sunrise Highway
Baldwin, New York
2410 Merrick Road
Bellmore, New York
1220 Penunsula Boulevard
Hewlett, New York
All of the Borrower's prescription files owned and used by the Borrower in
connection with the operation of its stores located at 600 N. Wellwood Avenue,
Lindenhurst, New York and 1502-B Deer Park Avenue, North Babylon, New York (the
"Drug Stores").
All of the Borrower's pharmaceutical inventory located at the Drug Stores.
All of the Borrower's licenses and permits, to the extent transferable, used in
connection with the operation of the Drug Stores.
<PAGE>
[EXECUTION COPY]
SOLVENCY CERTIFICATE
DUANE READE INC.
I, the undersigned, the chief financial officer of Duane Reade Inc.
(formerly known as Duane Reade Holding Corp.), a company incorporated and
existing under the laws of the State of Delaware ("Holdings"), do hereby
certify, on behalf of Holdings, that:
1. This Certificate is furnished to the Lenders pursuant to Section
3.1.7 of the Amendment Agreement defined in the Second Amended and Restated
Credit Agreement, dated as of March 17, 1999, amending and restating in its
entirety that certain Credit Agreement, dated as of September 11, 1998 (as
amended prior to the Amendment Effective Date) (as so amended and restated, and
together with all amendments, supplements, restatements and other modifications,
if any, from time to time thereafter made thereto, the "Credit Agreement"),
among Duane Reade, a New York general partnership (the "Borrower"), Holdings and
the other Parent Guarantor named therein, the several financial institutions
from time to time party thereto (collectively, the "Lenders", and, individually,
a "Lender"), DLJ Capital Funding, Inc., as Syndication Agent for the Lenders,
Fleet National Bank, as Administrative Agent for the Lenders and Credit Lyonnais
New York Branch, as Documentation Agent. Unless otherwise defined herein,
capitalized terms used in this Certificate shall have the meanings set forth in
the Credit Agreement.
2. For purposes of this Certificate, the terms below shall have the
following meanings:
(a) "Fair Market Value"
The amount at which the assets, in their entirety, of Holdings and
its Subsidiaries (including the Borrower) taken as a whole would
change hands between a willing buyer and a willing seller, within a
commercially reasonable period of time, each having reasonable
knowledge of the relevant facts, with neither being under any
compulsion to act, with equity to both.
(b) "Present Fair Salable Value"
The amount that may be realized by an independent willing seller
from an independent willing buyer if the assets of Holdings and its
Subsidiaries (including the Borrower) taken as whole are sold with
reasonable promptness in an arm's-length transaction under present
conditions for the sale of the assets of Holdings and its
Subsidiaries (including the Borrower) taken as a whole.
(c) "Stated Liabilities"
<PAGE>
The recorded liabilities (including contingent liabilities that
would be recorded in accordance with GAAP) of Holdings and its
Subsidiaries (including the Borrower) on a consolidated basis
pursuant to its unaudited balance sheet as of July 25, 1998, after
giving effect to the consummation of the New Transaction
contemplated pursuant to and in connection with the Credit
Agreement, determined in accordance with GAAP consistently applied.
(d) "Identified Contingent Liabilities"
The maximum reasonably estimated amount of liabilities that may
result from pending litigation, asserted claims and assessments,
guaranties, environmental conditions, uninsured risks and other
contingent liabilities of Holdings and its Subsidiaries (including
the Borrower) taken as a whole, as identified and explained in terms
of their nature and estimated magnitude by Authorized Officers of
Holdings and/or any of its Subsidiaries (including the Borrower).
(e) "Pay their respective Stated Liabilities and Identified Contingent
Liabilities as they mature"
Holdings and its Subsidiaries (including the Borrower) taken as a
whole will have sufficient assets and cash flow to pay their
respective Stated Liabilities and Identified Contingent Liabilities
as those liabilities mature or otherwise become payable.
(f) "Does not have Unreasonably Small Capital"
Holdings and its Subsidiaries (including the Borrower) taken as a
whole, after giving effect to the New Transaction contemplated
pursuant to and in connection with the Credit Agreement, is a going
concern and has sufficient capital to ensure that it will continue
to be a going concern for such period and to remain a going concern
and does not lack sufficient capital for its needs and anticipated
needs, including without limitation, Identified Contingent
Liabilities, without substantial unplanned disposition of assets
outside the ordinary course of business, restructuring of debt,
externally forced revisions of its operations or other similar
actions.
3. For purposes of this Certificate, I, or officers of Holdings
under my direction and supervision, have performed the following procedures as
of and for the periods set forth below.
(a) I have reviewed the financial statements referred to in Section 6.5
of the Credit
-2-
<PAGE>
Agreement.
(b) I have made inquiries of certain officials of Holdings and its
Subsidiaries (including the Borrower) who have responsibility for
financial and accounting matters regarding the existence and amount
of Identified Contingent Liabilities associated with the business of
Holdings and its Subsidiaries (including the Borrower).
(c) I have knowledge of and have reviewed to my satisfaction the Loan
Documents, and the other documents relating thereto, and the
respective schedules and exhibits thereto.
(d) With respect to Identified Contingent Liabilities, I:
(i) inquired of certain officials of Holdings and its Subsidiaries
(including the Borrower) who have responsibility for legal,
financial and accounting matters as to the existence and
estimated liability with respect to all contingent liabilities
associated with the business of Holdings and its Subsidiaries
(including the Borrower); and
(ii) confirmed with officers of Holdings and its Subsidiaries
(including the Borrower) that, to the best of such officers'
knowledge, (A) all appropriate items were included in Stated
Liabilities or Identified Contingent Liabilities and that (B)
the amounts relating thereto were the maximum estimated amount
of liabilities reasonably likely to result therefrom as of the
date hereof.
(e) I have made inquiries of certain officers of Holdings and its
Subsidiaries (including the Borrower) who have responsibility for
financial reporting and accounting matters regarding whether they
were aware of any events or conditions that, as of the date hereof,
would cause Holdings and its Subsidiaries (including the Borrower)
taken as a whole after giving effect to the consummation of the New
Transaction contemplated pursuant to and in connection with the
Credit Agreement (including the making of Loans and the issuance of
Letters of Credit under the Credit Agreement), to (i) have assets
with a Fair Market Value that are less than Stated Liabilities and
Identified Contingent Liabilities; (ii) have assets with a Present
Fair Salable Value that are less than Stated Liabilities and
Identified Contingent Liabilities; (iii) have Unreasonably Small
Capital; or (iv) not be able to pay their respective Stated
Liabilities and Identified Contingent Liabilities as they mature or
otherwise become payable.
4. Based on and subject to the foregoing, I hereby certify on behalf
of Holdings that, after giving effect to the consummation of the New Transaction
contemplated pursuant to and in connection with the Credit Agreement and the
related financing transactions
-3-
<PAGE>
(including the making of Loans and the issuance of Letters of Credit under the
Credit Agreement), it is my opinion that (i) the Fair Market Value of the assets
of Holdings and its Subsidiaries (including the Borrower) taken as a whole
exceed the Stated Liabilities and Identified Contingent Liabilities; (ii) the
Present Fair Salable Value of the assets of Holdings and its Subsidiaries
(including the Borrower) taken as a whole exceed the Stated Liabilities and
Identified Contingent Liabilities; (iii) Holdings and its Subsidiaries
(including the Borrower) taken as a whole will not have Unreasonably Small
Capital; and (iv) Holdings and its Subsidiaries (including the Borrower) taken
as a whole will be able to pay their respective Stated Liabilities and
Identified Contingent Liabilities as they mature or otherwise become payable.
IN WITNESS WHEREOF, I have hereto set my hand this 17th day of
March, 1999.
DUANE READE INC.
By: /s/ William J. Tennant
------------------------------
Name: William J. Tennant
Title: Senior Vice President
-4-
<PAGE>
[EXECUTION COPY]
SOLVENCY CERTIFICATE
DUANE READE
I, the undersigned, the chief financial officer of Duane Reade, a
general partnership organized and existing under the laws of the State of New
York (the "Borrower"), do hereby certify on behalf of the Borrower, that:
1. This Certificate is furnished to the Lenders pursuant to Section
3.1.7 of the Amendment Agreement defined in the Second Amended and Restated
Credit Agreement, dated as of March 17, 1999, amending and restating in its
entirety that certain Amended and Restated Credit Agreement, dated as of
September 11, 1998 (as amended prior to the Amendment Effective Date) (as so
amended and restated, and together with all amendments, supplements,
restatements and other modifications, if any, from time to time thereafter made
thereto, the "Credit Agreement"), among the Borrower, each of the Parent
Guarantors named therein, the several financial institutions from time to time
party thereto (collectively, the "Lenders", and, individually, a "Lender"), DLJ
Capital Funding, Inc., as Syndication Agent for the Lenders, Fleet National
Bank, as Administrative Agent for the Lenders and Credit Lyonnais New York
Branch, as Documentation Agent. Unless otherwise defined herein, capitalized
terms used in this Certificate shall have the meanings set forth in the Credit
Agreement.
2. For purposes of this Certificate, the terms below shall have the
following meanings:
(a) "Fair Market Value"
The amount at which the assets, in their entirety, of the Borrower
and its Subsidiaries taken as a whole would change hands between a
willing buyer and a willing seller, within a commercially reasonable
period of time, each having reasonable knowledge of the relevant
facts, with neither being under any compulsion to act, with equity
to both.
(b) "Present Fair Salable Value"
The amount that may be realized by an independent willing seller
from an independent willing buyer if the assets of the Borrower and
its Subsidiaries taken as whole are sold with reasonable promptness
in an arm's-length transaction under present conditions for the sale
of the assets of the Borrower and its Subsidiaries taken as a whole.
<PAGE>
(c) "Stated Liabilities"
The recorded liabilities (including contingent liabilities that
would be recorded in accordance with GAAP) of the Borrower and its
Subsidiaries on a consolidated basis pursuant to its unaudited
balance sheet as of July 25, 1998, after giving effect to the
consummation of the New Transaction contemplated pursuant to and in
connection with the Credit Agreement, determined in accordance with
GAAP consistently applied.
(d) "Identified Contingent Liabilities"
The maximum reasonably estimated amount of liabilities that may
result from pending litigation, asserted claims and assessments,
guaranties, environmental conditions, uninsured risks and other
contingent liabilities of the Borrower and its Subsidiaries taken as
a whole, as identified and explained in terms of their nature and
estimated magnitude by Authorized Officers of the Borrower and/or
any of its Subsidiaries.
(e) "Pay their respective Stated Liabilities and Identified Contingent
Liabilities as they mature"
The Borrower and its Subsidiaries taken as a whole will have
sufficient assets and cash flow to pay their respective Stated
Liabilities and Identified Contingent Liabilities as those
liabilities mature or otherwise become payable.
(f) "Does not have Unreasonably Small Capital"
The Borrower and its Subsidiaries taken as a whole, after giving
effect to the New Transaction contemplated pursuant to and in
connection with the Credit Agreement, is a going concern and has
sufficient capital to ensure that it will continue to be a going
concern for such period and to remain a going concern and does not
lack sufficient capital for its needs and anticipated needs,
including without limitation, Identified Contingent Liabilities,
without substantial unplanned disposition of assets outside the
ordinary course of business, restructuring of debt, externally
forced revisions of its operations or other similar actions.
3. For purposes of this Certificate, I, or officers of the Borrower
under my direction and supervision, have performed the following procedures as
of and for the periods set forth below.
(a) I have reviewed the financial statements referred to in Section 6.5
of the Credit Agreement.
-2-
<PAGE>
(b) I have made inquiries of certain officials of the Borrower and its
Subsidiaries who have responsibility for financial and accounting
matters regarding the existence and amount of Identified Contingent
Liabilities associated with the business of the Borrower and its
Subsidiaries.
(c) I have knowledge of and have reviewed to my satisfaction the Loan
Documents, and the other documents relating thereto, and the
respective schedules and exhibits thereto.
(d) With respect to Identified Contingent Liabilities, I:
(i) inquired of certain officials of the Borrower and its
Subsidiaries who have responsibility for legal, financial and
accounting matters as to the existence and estimated liability
with respect to all contingent liabilities associated with the
business of the Borrower and its Subsidiaries; and
(ii) confirmed with officers of the Borrower and its Subsidiaries
that, to the best of such officers' knowledge, (A) all
appropriate items were included in Stated Liabilities or
Identified Contingent Liabilities and that (B) the amounts
relating thereto were the maximum estimated amount of
liabilities reasonably likely to result therefrom as of the
date hereof.
(e) I have made inquiries of certain officers of the Borrower and its
Subsidiaries who have responsibility for financial reporting and
accounting matters regarding whether they were aware of any events
or conditions that, as of the date hereof, would cause the Borrower
and its Subsidiaries taken as a whole after giving effect to the
consummation of the New Transaction contemplated pursuant to and in
connection with the Credit Agreement (including the making of Loans
and the issuance of Letters of Credit under the Credit Agreement),
to (i) have assets with a Fair Market Value that are less than
Stated Liabilities and Identified Contingent Liabilities; (ii) have
assets with a Present Fair Salable Value that are less than Stated
Liabilities and Identified Contingent Liabilities; (iii) have
Unreasonably Small Capital; or (iv) not be able to pay their
respective Stated Liabilities and Identified Contingent Liabilities
as they mature or otherwise become payable.
4. Based on and subject to the foregoing, I hereby certify on behalf
of the Borrower that, after giving effect to the consummation of the New
Transaction contemplated pursuant to and in connection with the Credit Agreement
and the related financing transactions (including the making of Loans and the
issuance of Letters of Credit under the Credit Agreement), it is my opinion that
(i) the Fair Market Value of the assets of the Borrower and its Subsidiaries
taken as a whole exceed the Stated Liabilities and Identified Contingent
-3-
<PAGE>
Liabilities; (ii) the Present Fair Salable Value of the assets of the Borrower
and its Subsidiaries taken as a whole exceed the Stated Liabilities and
Identified Contingent Liabilities; (iii) the Borrower and its Subsidiaries taken
as a whole will not have Unreasonably Small Capital; and (iv) the Borrower and
its Subsidiaries taken as a whole will be able to pay their respective Stated
Liabilities and Identified Contingent Liabilities as they mature or otherwise
become payable.
IN WITNESS WHEREOF, I have hereto set my hand this 17th day of
March, 1999.
DUANE READE
By Duane Reade Inc., a general partner
By: /s/ William J. Tennant
------------------------------
Name: William J. Tennant
Title: Senior Vice President
-4-
<PAGE>
[EXECUTION COPY]
SOLVENCY CERTIFICATE
DUANE READE
I, the undersigned, the chief financial officer of Duane Reade, a
general partnership organized and existing under the laws of the State of New
York (the "Borrower"), do hereby certify on behalf of the Borrower, that:
1. This Certificate is furnished to the Lenders pursuant to Section
3.1.7 of the Amendment Agreement defined in the Second Amended and Restated
Credit Agreement, dated as of March 17, 1999, amending and restating in its
entirety that certain Amended and Restated Credit Agreement, dated as of
September 11, 1998 (as amended prior to the Amendment Effective Date) (as so
amended and restated, and together with all amendments, supplements,
restatements and other modifications, if any, from time to time thereafter made
thereto, the "Credit Agreement"), among the Borrower, each of the Parent
Guarantors named therein, the several financial institutions from time to time
party thereto (collectively, the "Lenders", and, individually, a "Lender"), DLJ
Capital Funding, Inc., as Syndication Agent for the Lenders, Fleet National
Bank, as Administrative Agent for the Lenders and Credit Lyonnais New York
Branch, as Documentation Agent. Unless otherwise defined herein, capitalized
terms used in this Certificate shall have the meanings set forth in the Credit
Agreement.
2. For purposes of this Certificate, the terms below shall have the
following meanings:
(a) "Fair Market Value"
The amount at which the assets, in their entirety, of the Borrower
and its Subsidiaries taken as a whole would change hands between a
willing buyer and a willing seller, within a commercially reasonable
period of time, each having reasonable knowledge of the relevant
facts, with neither being under any compulsion to act, with equity
to both.
(b) "Present Fair Salable Value"
The amount that may be realized by an independent willing seller
from an independent willing buyer if the assets of the Borrower and
its Subsidiaries taken as whole are sold with reasonable promptness
in an arm's-length transaction under present conditions for the sale
of the assets of the Borrower and its Subsidiaries taken as a whole.
<PAGE>
(c) "Stated Liabilities"
The recorded liabilities (including contingent liabilities that
would be recorded in accordance with GAAP) of the Borrower and its
Subsidiaries on a consolidated basis pursuant to its unaudited
balance sheet as of July 25, 1998, after giving effect to the
consummation of the New Transaction contemplated pursuant to and in
connection with the Credit Agreement, determined in accordance with
GAAP consistently applied.
(d) "Identified Contingent Liabilities"
The maximum reasonably estimated amount of liabilities that may
result from pending litigation, asserted claims and assessments,
guaranties, environmental conditions, uninsured risks and other
contingent liabilities of the Borrower and its Subsidiaries taken as
a whole, as identified and explained in terms of their nature and
estimated magnitude by Authorized Officers of the Borrower and/or
any of its Subsidiaries.
(e) "Pay their respective Stated Liabilities and Identified Contingent
Liabilities as they mature"
The Borrower and its Subsidiaries taken as a whole will have
sufficient assets and cash flow to pay their respective Stated
Liabilities and Identified Contingent Liabilities as those
liabilities mature or otherwise become payable.
(f) "Does not have Unreasonably Small Capital"
The Borrower and its Subsidiaries taken as a whole, after giving
effect to the New Transaction contemplated pursuant to and in
connection with the Credit Agreement, is a going concern and has
sufficient capital to ensure that it will continue to be a going
concern for such period and to remain a going concern and does not
lack sufficient capital for its needs and anticipated needs,
including without limitation, Identified Contingent Liabilities,
without substantial unplanned disposition of assets outside the
ordinary course of business, restructuring of debt, externally
forced revisions of its operations or other similar actions.
3. For purposes of this Certificate, I, or officers of the Borrower
under my direction and supervision, have performed the following procedures as
of and for the periods set forth below.
(a) I have reviewed the financial statements referred to in Section 6.5
of the Credit Agreement.
-2-
<PAGE>
(b) I have made inquiries of certain officials of the Borrower and its
Subsidiaries who have responsibility for financial and accounting
matters regarding the existence and amount of Identified Contingent
Liabilities associated with the business of the Borrower and its
Subsidiaries.
(c) I have knowledge of and have reviewed to my satisfaction the Loan
Documents, and the other documents relating thereto, and the
respective schedules and exhibits thereto.
(d) With respect to Identified Contingent Liabilities, I:
(i) inquired of certain officials of the Borrower and its
Subsidiaries who have responsibility for legal, financial and
accounting matters as to the existence and estimated liability
with respect to all contingent liabilities associated with the
business of the Borrower and its Subsidiaries; and
(ii) confirmed with officers of the Borrower and its Subsidiaries
that, to the best of such officers' knowledge, (A) all
appropriate items were included in Stated Liabilities or
Identified Contingent Liabilities and that (B) the amounts
relating thereto were the maximum estimated amount of
liabilities reasonably likely to result therefrom as of the
date hereof.
(e) I have made inquiries of certain officers of the Borrower and its
Subsidiaries who have responsibility for financial reporting and
accounting matters regarding whether they were aware of any events
or conditions that, as of the date hereof, would cause the Borrower
and its Subsidiaries taken as a whole after giving effect to the
consummation of the New Transaction contemplated pursuant to and in
connection with the Credit Agreement (including the making of Loans
and the issuance of Letters of Credit under the Credit Agreement),
to (i) have assets with a Fair Market Value that are less than
Stated Liabilities and Identified Contingent Liabilities; (ii) have
assets with a Present Fair Salable Value that are less than Stated
Liabilities and Identified Contingent Liabilities; (iii) have
Unreasonably Small Capital; or (iv) not be able to pay their
respective Stated Liabilities and Identified Contingent Liabilities
as they mature or otherwise become payable.
4. Based on and subject to the foregoing, I hereby certify on behalf
of the Borrower that, after giving effect to the consummation of the New
Transaction contemplated pursuant to and in connection with the Credit Agreement
and the related financing transactions (including the making of Loans and the
issuance of Letters of Credit under the Credit Agreement), it is my opinion that
(i) the Fair Market Value of the assets of the Borrower and its Subsidiaries
taken as a whole exceed the Stated Liabilities and Identified Contingent
-3-
<PAGE>
Liabilities; (ii) the Present Fair Salable Value of the assets of the Borrower
and its Subsidiaries taken as a whole exceed the Stated Liabilities and
Identified Contingent Liabilities; (iii) the Borrower and its Subsidiaries taken
as a whole will not have Unreasonably Small Capital; and (iv) the Borrower and
its Subsidiaries taken as a whole will be able to pay their respective Stated
Liabilities and Identified Contingent Liabilities as they mature or otherwise
become payable.
IN WITNESS WHEREOF, I have hereto set my hand this 17th day of
March, 1999.
DUANE READE
By Duane Reade Inc., a general partner
By: /s/ William J. Tennant
------------------------------
Name: William J. Tennant
Title: Senior Vice President
-4-
WARNING: THE EDGAR SYSTEM ENCOUNTERED ERROR(S) WHILE PROCESSING THIS SCHEDULE.
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
COMPANY'S CONSOLIDATED BALANCE SHEET AS OF MARCH 27, 1999 AND THE RELATED
CONSOLIDATED STATEMENT OF OPERATIONS FOR THE 13 WEEKS ENDED MARCH 27, 1999 AND
IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> DEC-25-1999
<PERIOD-END> MAR-27-1999
<CASH> 912
<SECURITIES> 0
<RECEIVABLES> 28,665
<ALLOWANCES> 0
<INVENTORY> 131,781
<CURRENT-ASSETS> 171,722
<PP&E> 81,431
<DEPRECIATION> (18,621)
<TOTAL-ASSETS> 432,742
<CURRENT-LIABILITIES> 83,492
<BONDS> 317,646
0
0
<COMMON> 171
<OTHER-SE> 25,406
<TOTAL-LIABILITY-AND-EQUITY> 432,742
<SALES> 190,364
<TOTAL-REVENUES> 190,364
<CGS> 144,408
<TOTAL-COSTS> 144,408
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 6,780
<INCOME-PRETAX> 2,513
<INCOME-TAX> 477
<INCOME-CONTINUING> 2,036
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 2,036
<EPS-PRIMARY> .12
<EPS-DILUTED> .11
</TABLE>
