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 ▇▇▇▇▇ ▇▇▇▇▇, 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;
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.
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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 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
(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
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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
(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
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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 or otherwise;
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(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 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.
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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).
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.
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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.
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
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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
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
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(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, including:
(a) to ask, demand, collect, ▇▇▇ 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
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(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
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
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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,
(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
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(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.
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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,
(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
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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.
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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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:
▇▇▇▇▇ ▇▇▇▇▇ INC., a Delaware
corporation
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President
and Chief Financial
Officer
DRI I INC., a Delaware corporation
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President
and Chief Financial
Officer
FLEET NATIONAL BANK,
as Administrative Agent
By /s/ Authorized Signatory
------------------------------
Name:
Title:
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SCHEDULE I to
Partnership Security
Agreement
TYPE OF PERCENTAGE OF
PARTNERSHIP ALL INTERESTS
NAME OF GRANTOR INTEREST PLEDGED PLEDGED
--------------- ---------------- -------------
▇▇▇▇▇ ▇▇▇▇▇ Inc. General 99%
DRI I Inc. General 1%
SCHEDULE II to
Partnership Security
Agreement
Chief Executive Office
----------------------
▇▇▇▇▇ ▇▇▇▇▇ INC. ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
DRI I INC. ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇