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Roundy's Acquisition / Copps - Guarantee And Collateral Agreement
EXHIBIT 10.3
GUARANTEE AND COLLATERAL AGREEMENT
made by
ROUNDY'S ACQUISITION CORP.
ROUNDY'S, INC.
and certain of its Subsidiaries
in favor of
BEAR STEARNS CORPORATE LENDING INC.,
as Administrative Agent
Dated as of June 6, 2002
TABLE OF CONTENTS
Page
---- SECTION 1. DEFINED TERMS................................................................ 1
1.1. Definitions............................................................ 1
1.2. Other Definitional Provisions.......................................... 4
SECTION 2. GUARANTEE.................................................................... 5
2.1. Guarantee.............................................................. 5
2.2. Right of Contribution.................................................. 5
2.3. No Subrogation......................................................... 6
2.4. Amendments, etc. with respect to the Borrower Obligations.............. 6
2.5. Guarantee Absolute and Unconditional................................... 7
2.6. Reinstatement.......................................................... 8
2.7. Payments............................................................... 8
SECTION 3. GRANT OF SECURITY INTEREST................................................... 8
SECTION 4. REPRESENTATIONS AND WARRANTIES............................................... 9
4.1. Representations in Credit Agreement; Parent Representations............ 9
4.2. Title; No Other Liens.................................................. 10
4.3. Perfected First Priority Liens......................................... 10
4.4. Jurisdiction of Organization; Chief Executive Office................... 10
4.5. Inventory and Equipment................................................ 10
4.6. Farm Products.......................................................... 10
4.7. Investment Property.................................................... 10
4.8. Receivables............................................................ 11
4.9. Intellectual Property.................................................. 11
SECTION 5. COVENANTS.................................................................... 12
5.1. Covenants in Credit Agreement.......................................... 12
5.2. Delivery of Instruments and Chattel Paper.............................. 12
5.3. Maintenance of Insurance............................................... 12
5.4. Payment of Obligations................................................. 13
5.5. Maintenance of Perfected Security Interest; Further Documentation...... 13
5.6. Changes in Locations, Name, etc........................................ 13
5.7. Notices................................................................ 14
5.8. Investment Property.................................................... 14
5.9. Receivables............................................................ 15
5.10. Intellectual Property.................................................. 16
SECTION 6. REMEDIAL PROVISIONS.......................................................... 17
6.1. Certain Matters Relating to Receivables................................ 17
6.2. Communications with Obligors; Grantors Remain Liable................... 18
6.3. Pledged Stock.......................................................... 19
6.4. Proceeds to be Turned Over to Administrative Agent..................... 20
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Page
----
6.5. Application of Proceeds.............................................. 20
6.6. Code and Other Remedies.............................................. 21
6.7. Registration Rights.................................................. 22
6.8. Deficiency........................................................... 23
SECTION 7. THE ADMINISTRATIVE AGENT................................................... 24
7.1. Administrative Agent's Appointment as Attorney-in-Fact, etc.......... 24
7.2. Duty of Administrative Agent......................................... 26
7.3. Execution of Financing Statements.................................... 26
7.4. Authority of Administrative Agent.................................... 26
SECTION 8. MISCELLANEOUS.............................................................. 27
8.1. Amendments in Writing................................................ 27
8.2. Notices.............................................................. 27
8.3. No Waiver by Course of Conduct; Cumulative Remedies.................. 27
8.4. Enforcement Expenses; Indemnification................................ 27
8.5. Successors and Assigns............................................... 28
8.6. Set-Off.............................................................. 28
8.7. Counterparts......................................................... 28
8.8. Severability......................................................... 28
8.9. Section Headings..................................................... 29
8.10. Integration.......................................................... 29
8.11. GOVERNING LAW........................................................ 29
8.12. Submission To Jurisdiction; Waivers.................................. 29
8.13. Acknowledgements..................................................... 30
8.14. Additional Grantors.................................................. 30
8.15. Releases............................................................. 30
8.16. WAIVER OF JURY TRIAL................................................. 31
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GUARANTEE AND COLLATERAL AGREEMENT, dated as of June 6, 2002, made by each of the signatories hereto (together with any other entity that may become a party hereto as provided herein, the "Grantors"), in favor of BEAR STEARNS CORPORATE LENDING INC., as Administrative Agent (in such capacity, the "Administrative Agent"), for the banks, financial institutions and other entities (the "Lenders") from time to time parties to the Credit Agreement, dated as of June 6, 2002 (as amended, supplemented or otherwise modified from time to time, the "Credit Agreement"), among Roundy's Acquisition Corp., a Delaware corporation, Roundy's, Inc., a Wisconsin corporation (the "Borrower"), the several banks, financial institutions and other entities from time to time parties to the Credit Agreement (the "Lenders"), Bear, Stearns & Co. Inc., as sole lead arranger and sole book manager (in such capacity, the "Arranger"), Canadian Imperial Bank of Commerce, as syndication agent (in such capacity, the "Syndication Agent"), and the Administrative Agent.
W I T N E S S E T H:
WHEREAS, pursuant to the Credit Agreement, the Lenders have severally agreed to make extensions of credit to the Borrower upon the terms and subject to the conditions set forth therein;
WHEREAS, the Borrower is a member of an affiliated group of companies that includes each other Grantor;
WHEREAS, the proceeds of the extensions of credit under the Credit Agreement will be used in part to enable the Borrower to make valuable transfers to one or more of the other Grantors in connection with the operation of their respective businesses;
WHEREAS, the Borrower and the other Grantors are engaged in related businesses, and each Grantor will derive substantial direct and indirect benefit from the making of the extensions of credit under the Credit Agreement; and
WHEREAS, it is a condition precedent to the obligation of the Lenders to make their respective extensions of credit to the Borrower under the Credit Agreement that the Grantors shall have executed and delivered this Agreement to the Administrative Agent for the ratable benefit of the Lead Agents and the Lenders;
NOW, THEREFORE, in consideration of the premises and to induce the Lead Agents and the Lenders to enter into the Credit Agreement and to induce the Lenders to make their respective extensions of credit to the Borrower thereunder, each Grantor hereby agrees with the Administrative Agent, for the ratable benefit of the Lead Agents and the Lenders, as follows:
SECTION 1. DEFINED TERMS
1.1. Definitions. (a) Unless otherwise defined herein, terms defined in the
Credit Agreement and used herein shall have the meanings given to them in
the Credit Agreement, and the following terms are used herein as defined
in the New York UCC: Accounts, Certificated Security, Chattel Paper,
Commercial Tort Claims, Documents, Equipment, Farm Products, General
Intangibles, Instruments, Inventory, Letter-of-Credit Rights and
Supporting Obligations.
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(b) The following terms shall have the following meanings:
"Agreement": this Guarantee and Collateral Agreement, as the same may
be amended, supplemented or otherwise modified from time to time.
"Collateral": as defined in Section 3.
"Collateral Account": any collateral account established by the
Administrative Agent as provided in Section 6.1 or 6.4.
"Copyrights": (i) all copyrights arising under the laws of the United
States, any other country or any political subdivision thereof, whether
registered or unregistered and whether published or unpublished (including,
without limitation, those listed in Schedule 6), all registrations and
recordings thereof, and all applications in connection therewith,
including, without limitation, all registrations, recordings and
applications in the United States Copyright Office, and (ii) the right to
obtain all renewals thereof.
"Copyright Licenses": any written agreement naming any Grantor as
licensor or licensee (including, without limitation, those listed in
Schedule 6), granting any right under any Copyright, including, without
limitation, the grant of rights to manufacture, distribute, exploit and
sell materials derived from any Copyright.
"Deposit Account": as defined in the Uniform Commercial Code of any
applicable jurisdiction and, in any event, including, without limitation,
any demand, time, savings, passbook or like account maintained with a
depositary institution.
"Foreign Subsidiary": any Subsidiary organized under the laws of any
jurisdiction outside the United States of America.
"Foreign Subsidiary Voting Stock": the voting Capital Stock of any
Foreign Subsidiary.
"Guarantor Obligations": with respect to any Guarantor, all obligations
and liabilities of such Guarantor which may arise under or in connection
with this Agreement (including, without limitation, Section 2) or any other
Loan Document to which such Guarantor is a party, in each case whether on
account of guarantee obligations, reimbursement obligations, fees,
indemnities, costs, expenses or otherwise (including, without limitation,
all fees and disbursements of counsel to the Lead Agents or to the Lenders
that are required to be paid by such Guarantor pursuant to the terms of
this Agreement or any other Loan Document).
"Guarantors": the collective reference to each Grantor other than the
Borrower.
"Hedge Agreements": as to any Person, all interest rate swaps, caps or
collar agreements or similar arrangements entered into by such Person
providing for protection against fluctuations in interest rates or currency
exchange rates or the exchange of nominal interest obligations, either
generally or under specific contingencies.
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"Intellectual Property": the collective reference to all rights,
priorities and privileges relating to intellectual property, whether
arising under United States, multinational or foreign laws or otherwise,
including, without limitation, the Copyrights, the Copyright Licenses, the
Patents, the Patent Licenses, the Trademarks and the Trademark Licenses,
and all rights to sue at law or in equity for any infringement or other
impairment thereof, including the right to receive all proceeds and damages
therefrom.
"Intercompany Note": any promissory note evidencing loans made by any
Grantor to the Borrower or any of its Subsidiaries.
"Investment Property": the collective reference to (i) all "investment
property" as such term is defined in Section 9-102(a)(49) of the New York
UCC (other than any Foreign Subsidiary Voting Stock excluded from the
definition of "Pledged Stock") and (ii) whether or not constituting
"investment property" as so defined, all Pledged Notes and all Pledged
Stock.
"Issuers": the collective reference to each issuer of any Investment
Property.
"New York UCC": the Uniform Commercial Code as from time to time in
effect in the State of New York.
"Obligations": (i) in the case of the Borrower, the Obligations, and
(ii) in the case of each Guarantor, its Guarantor Obligations.
"Patents": (i) all letters patent of the United States, any other
country or any political subdivision thereof, all reissues and extensions
thereof and all goodwill associated therewith, including, without
limitation, any of the foregoing referred to in Schedule 6, (ii) all
applications for letters patent of the United States or any other country
and all divisions, continuations and continuations-in-part thereof,
including, without limitation, any of the foregoing referred to in Schedule
6, and (iii) all rights to obtain any reissues or extensions of the
foregoing.
"Patent License": all agreements providing for the grant by or to any
Grantor of any right to manufacture, use or sell any invention covered in
whole or in part by a Patent, including, without limitation, any of the
foregoing referred to in Schedule 6.
"Pledged Notes": all promissory notes listed on Schedule 2, all
Intercompany Notes at any time issued to any Grantor and all other
promissory notes issued to or held by any Grantor (other than promissory
notes issued in connection with extensions of trade credit by any Grantor
in the ordinary course of business).
"Pledged Stock": the shares of Capital Stock listed on Schedule 2,
together with any other shares, stock certificates, options, interests or
rights of any nature whatsoever in respect of the Capital Stock of any
Person that may be issued or granted to, or held by, any Grantor while this
Agreement is in effect; provided that in no event shall more than 66% of
the total outstanding Foreign Subsidiary Voting Stock of any Foreign
Subsidiary be required to be pledged hereunder.
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"Proceeds": all "proceeds" as such term is defined in Section
9-102(a)(64) of the New York UCC and, in any event, shall include, without
limitation, all dividends or other income from the Investment Property,
collections thereon or distributions or payments with respect thereto.
"Receivable": any right to payment for goods sold or leased or for
services rendered, whether or not such right is evidenced by an Instrument
or Chattel Paper and whether or not it has been earned by performance
(including, without limitation, any Account).
"Securities Act": the Securities Act of 1933, as amended.
"Trademarks": (i) all trademarks, trade names, corporate names,
company names, business names, fictitious business names, trade styles,
service marks, logos and other source or business identifiers, and all
goodwill associated therewith, now existing or hereafter adopted or
acquired, all registrations and recordings thereof, and all applications in
connection therewith, whether in the United States Patent and Trademark
Office or in any similar office or agency of the United States, any State
thereof or any other country or any political subdivision thereof, or
otherwise, and all common-law rights related thereto, including, without
limitation, any of the foregoing referred to in Schedule 6, and (ii) the
right to obtain all renewals thereof.
"Trademark License": any agreement, whether written or oral, providing
for the grant by or to any Grantor of any right to use any Trademark,
including, without limitation, any of the foregoing referred to in Schedule
6.
1.2. Other Definitional Provisions. (a) The words "hereof," "herein",
"hereto" and "hereunder" and words of similar import when used in this
Agreement shall refer to this Agreement as a whole and not to any
particular provision of this Agreement, and Section and Schedule
references are to this Agreement unless otherwise specified.
(b) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
(c) Where the context requires, terms relating to the Collateral or
any part thereof, when used in relation to a Grantor, shall refer
to such Grantor's Collateral or the relevant part thereof.
(d) Where the context requires, any affiliate of a Lender which is
party to a Specified Hedge Agreement shall be deemed to be a
"Lender" for purposes of this Agreement.
(e) The word "knowledge" when used with respect to any Grantor shall
be deemed to be a reference to the knowledge of any Responsible
Officer of such Grantor.
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SECTION 2. GUARANTEE
2.1. Guarantee. (a) Each of the Guarantors hereby, jointly and severally,
unconditionally and irrevocably, guarantees to the Administrative
Agent, for the ratable benefit of the Lead Agents and the Lenders and
their respective, permitted successors, indorsees, transferees and
assigns, the prompt and complete payment and performance by the
Borrower when due (whether at the stated maturity, by acceleration or
otherwise) of the Obligations.
(b) Anything herein or in any other Loan Document to the contrary
notwithstanding, the maximum liability of each Guarantor
hereunder and under the other Loan Documents shall in no event
exceed the amount which can be guaranteed by such Guarantor under
applicable federal and state laws relating to the insolvency of
debtors and fraudulent conveyances or transfers (after giving
effect to the right of contribution established in Section 2.2).
(c) Each Guarantor agrees that the Obligations may at any time and
from time to time exceed the amount of the liability of such
Guarantor hereunder without impairing the guarantee contained in
this Section 2 or affecting the rights and remedies of any Lead
Agent or any Lender hereunder.
(d) The guarantee contained in this Section 2 shall remain in full
force and effect until all the Obligations and the obligations of
each Guarantor under the guarantee contained in this Section 2
shall have been satisfied by payment in full (excluding
contingent indemnification obligations or obligations with
respect to Specified Hedge Agreements), no Letter of Credit shall
be outstanding and the Commitments shall be terminated,
notwithstanding that from time to time during the term of the
Credit Agreement the Borrower may be free from any Obligations.
(e) No payment made by the Borrower, any of the Guarantors, any other
guarantor or any other Person or received or collected by any
Lead Agent or any Lender from the Borrower, any of the
Guarantors, any other guarantor or any other Person by virtue of
any action or proceeding or any set-off or appropriation or
application at any time or from time to time in reduction of or
in payment of the Obligations shall be deemed to modify, reduce,
release or otherwise affect the liability of any Guarantor
hereunder which shall, notwithstanding any such payment (other
than any payment made by such Guarantor in respect of the
Obligations or any payment received or collected from such
Guarantor in respect of the Obligations), remain liable for the
Obligations up to the maximum liability of such Guarantor
hereunder until the Obligations are paid in full, no Letter of
Credit shall be outstanding and the Commitments are terminated.
2.2. Right of Contribution. Each Subsidiary Guarantor hereby agrees that to
the extent that a Subsidiary Guarantor shall have paid more than its
proportionate share of
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any payment made hereunder, such Subsidiary Guarantor shall be
entitled to seek and receive contribution from and against any other
Subsidiary Guarantor hereunder which has not paid its proportionate
share of such payment. Each Subsidiary Guarantor's right of
contribution shall be subject to the terms and conditions of Section
2.3. The provisions of this Section 2.2 shall in no respect limit the
obligations and liabilities of any Subsidiary Guarantor to the Lead
Agents and the Lenders, and each Subsidiary Guarantor shall remain
liable to the Lead Agents and the Lenders for the full amount
guaranteed by such Subsidiary Guarantor hereunder.
2.3. No Subrogation. Notwithstanding any payment made by any Guarantor
hereunder or any set-off or application of funds of any Guarantor by
any Lead Agent or any Lender, no Guarantor shall be entitled to be
subrogated to any of the rights of any Lead Agent or any Lender
against the Borrower or any other Guarantor or any collateral security
or guarantee or right of offset held by any Lead Agent or any Lender
for the payment of the Obligations, nor shall any Guarantor seek or be
entitled to seek any contribution or reimbursement from the Borrower
or any other Guarantor in respect of payments made by such Guarantor
hereunder, until all amounts owing to the Lead Agents and the Lenders
by the Borrower on account of the Obligations are paid in full
(excluding contingent indemnification obligations or obligations with
respect to Specified Hedge Agreements), no Letter of Credit shall be
outstanding and the Commitments are terminated. If any amount shall be
paid to any Guarantor on account of such subrogation rights at any
time when all of the Obligations shall not have been paid in full,
such amount shall be held by such Guarantor in trust for the Lead
Agents and the Lenders, segregated from other funds of such Guarantor,
and shall, forthwith upon receipt by such Guarantor, be turned over to
the Administrative Agent in the exact form received by such Guarantor
(duly indorsed by such Guarantor to the Administrative Agent, if
required), to be applied against the Obligations, whether matured or
unmatured, in such order as the Administrative Agent may determine.
2.4. Amendments, etc. with respect to the Obligations. Each Guarantor shall
remain obligated hereunder notwithstanding that, without any
reservation of rights against any Guarantor and without notice to or
further assent by any Guarantor, any demand for payment of any of the
Obligations made by any Lead Agent or any Lender may be rescinded by
such Lead Agent or such Lender and any of the Obligations continued,
and the Obligations, or the liability of any other Person upon or for
any part thereof, or any collateral security or guarantee therefor or
right of offset with respect thereto, may, from time to time, in whole
or in part, be renewed, extended, amended, modified, accelerated,
compromised, waived, surrendered or released by any Lead Agent or any
Lender, and the Credit Agreement and the other Loan Documents and any
other documents executed and delivered in connection therewith may be
amended, modified, supplemented or terminated, in whole or in part, as
the Administrative Agent (or the requisite Lenders or all Lenders, as
the case may be) may deem advisable from time to time, and any
collateral security, guarantee or right of offset at any time held by
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any Lead Agent or any Lender for the payment of the Obligations may be
sold, exchanged, waived, surrendered or released. No Lead Agent or
Lender shall have any obligation to protect, secure, perfect or insure
any Lien at any time held by it as security for the Obligations or for
the guarantee contained in this Section 2 or any property subject
thereto.
2.5. Guarantee Absolute and Unconditional. Each Guarantor waives (to the
extent not prohibited by applicable law) any and all notice of the
creation, renewal, extension or accrual of any of the Obligations and
notice of or proof of reliance by any Lead Agent or any Lender upon
the guarantee contained in this Section 2 or acceptance of the
guarantee contained in this Section 2; the Obligations, and any of
them, shall conclusively be deemed to have been created, contracted or
incurred, or renewed, extended, amended or waived, in reliance upon
the guarantee contained in this Section 2; and all dealings between
the Borrower and any of the Guarantors, on the one hand, and the Lead
Agents and the Lenders, on the other hand, likewise shall be
conclusively presumed to have been had or consummated in reliance upon
the guarantee contained in this Section 2. Each Guarantor waives (to
the extent not prohibited by applicable law) diligence, presentment,
protest, demand for payment and notice of default or nonpayment to or
upon the Borrower or any of the Guarantors with respect to the
Obligations. Each Guarantor understands and agrees that the guarantee
contained in this Section 2 shall be construed as a continuing,
absolute and unconditional guarantee of payment without regard to (1)
the validity or enforceability of the Credit Agreement or any other
Loan Document, any of the Obligations or any other collateral security
therefor or guarantee or right of offset with respect thereto at any
time or from time to time held by any Lead Agent or any Lender, (2)
any defense, set-off or counterclaim (other than a defense of payment
or performance) which may at any time be available to or be asserted
by the Borrower or any other Person against any Lead Agent or any
Lender, or (3) any other circumstance whatsoever (with or without
notice to or knowledge of the Borrower or such Guarantor) which
constitutes, or might be construed to constitute, an equitable or
legal discharge of the Borrower for the Obligations, or of such
Guarantor under the guarantee contained in this Section 2, in
bankruptcy or in any other instance. When making any demand hereunder
or otherwise pursuing its rights and remedies hereunder against any
Guarantor, any Lead Agent or any Lender may, but shall be under no
obligation to, make a similar demand on or otherwise pursue such
rights and remedies as it may have against the Borrower, any other
Guarantor or any other Person or against any collateral security or
guarantee for the Obligations or any right of offset with respect
thereto, and any failure by any Lead Agent or any Lender to make any
such demand, to pursue such other rights or remedies or to collect any
payments from the Borrower, any other Guarantor or any other Person or
to realize upon any such collateral security or guarantee or to
exercise any such right of offset, or any release of the Borrower, any
other Guarantor or any other Person or any such collateral security,
guarantee or right of offset, shall not relieve any Guarantor of any
obligation or liability hereunder, and shall not impair or affect the
rights and remedies, whether express, implied or available as a matter
of law, of any Lead Agent or any Lender against any
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Guarantor. For the purposes hereof "demand" shall include the
commencement and continuance of any legal proceedings.
2.6. Reinstatement. The guarantee contained in this Section 2 shall
continue to be effective, or be reinstated, as the case may be, if at
any time payment, or any part thereof, of any of the Obligations is
rescinded or must otherwise be restored or returned by any Lead Agent
or any Lender upon the insolvency, bankruptcy, dissolution,
liquidation or reorganization of the Borrower or any Guarantor, or
upon or as a result of the appointment of a receiver, intervenor or
conservator of, or trustee or similar officer for, the Borrower or any
Guarantor or any substantial part of its property, or otherwise, all
as though such payments had not been made.
2.7. Payments. Each Guarantor hereby guarantees that payments hereunder
will be paid to the Administrative Agent without set-off or
counterclaim in Dollars at the Payment Office specified in the Credit
Agreement.
SECTION 3. GRANT OF SECURITY INTEREST
Each Grantor hereby collaterally assigns, transfers and grants to the Administrative Agent, for the ratable benefit of the Lead Agents and the Lenders (and, in the case of Specified Hedge Agreements, any affiliates of any Lender), a security interest in, all of the following property now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (collectively, the "Collateral"), as collateral security for the prompt and complete payment and performance when due (whether at the stated maturity, by acceleration or otherwise) of such Grantor's Obligations:
(a) all Accounts;
(b) all Chattel Paper;
(c) all Deposit Accounts;
(d) all Documents;
(e) all Equipment;
(f) all General Intangibles;
(g) all Instruments;
(h) all Intellectual Property;
(i) all Inventory;
(j) all Investment Property;
(l) all Letter-of-Credit Rights;
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(m) all Commercial Tort Claims with respect to _______;
(n) all Goods and other personal property not otherwise described
above;
(o) all books and records pertaining to the Collateral; and
(p) to the extent not otherwise included, all Proceeds, Supporting
Obligations and products of any and all of the foregoing and all
collateral security and guarantees given by any Person with respect to
any of the foregoing;
provided, however, that notwithstanding any of the other
provisions set forth in this Section 3, this Agreement shall not
constitute a grant of a security interest in any property to the
extent that such grant of a security interest is in Equipment or
Property, as the case may be, subject to a Lien permitted under
Sections 8.3 (f), (g), (j) and (k) of the Credit Agreement, in each
case, with respect to which such Grantor is prohibited from granting a
security interest under the terms of Indebtedness incurred to finance
the purchase of such Equipment or Property, prohibited by any
Requirements of Law of a Governmental Authority, requires a consent
not obtained of any Governmental Authority pursuant to such
Requirement of Law or is prohibited by, or constitutes a breach or
default under or results in the termination of or requires any consent
not obtained under, any contract, license, agreement, instrument or
other document evidencing or giving rise to such property or, in the
case of any Investment Property, Pledged Stock or Pledged Note, any
applicable shareholder or similar agreement, except to the extent that
such Requirement of Law or the term in such contract, license,
agreement, instrument or other document or shareholder or similar
agreement providing for such prohibition, breach, default or
termination or requiring such consent is ineffective under applicable
law.
SECTION 4. REPRESENTATIONS AND WARRANTIES
To induce the Lead Agents and the Lenders to enter into the Credit Agreement and to induce the Lenders to make their respective extensions of credit to the Borrower thereunder, each Grantor hereby represents and warrants to each Lead Agent and each Lender that:
4.1. Representations in Credit Agreement. In the case of each Guarantor,
the representations and warranties set forth in Section 5 of the
Credit Agreement as they relate to such Guarantor or to the Loan
Documents to which such Guarantor is a party, each of which is hereby
incorporated herein by reference, are true and correct in all material
respects, and each Lead Agent and each Lender shall be entitled to
rely on each of them as if they were fully set forth herein, provided
that each reference in each such repres...
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