Down Reserve) and (y) $7,500,000 for thirty (30)
consecutive days, in which case a Covenant Compliance Event shall no longer be
deemed to be continuing for purposes of this Agreement. The termination of a
Covenant Compliance as provided herein shall in no way limit, waive or delay the
occurrence of a subsequent Covenant Compliance Event in the event that the
conditions set forth in this definition again arise.
DB1/ 97585183.1
APPENDIX III
(Financial Statements)
[see attached]
DB1/ 97585183.1
APPENDIX IV (GAAP)
[see attached]
DB1/ 97585183.1
APPENDIX V (MD&A)
[see attached]
DB1/ 97585183.1
EXHIBIT E
FORM OF ASSIGNMENT AND ASSUMPTION
This Assignment and Assumption (this "Assignment and Assumption") is dated as of
the Effective Date set forth below and is entered into by and between
[the][each]1 Assignor
identified in item 1 below ([the][each, an] "Assignor")
and [the][each]2 Assignee identified in item 2 below ([the][each, an]
"Assignee"). [It is understood and agreed that the rights and obligations of
[the Assignors][the Assignees]3 hereunder are several and not joint.]4
Capitalized terms used but not defined herein shall have the meanings given to
them in the Credit Agreement (as defined below), receipt of a copy of which is
hereby acknowledged by [the][each] Assignee. The Standard Terms and Conditions
set forth in Annex 1 attached hereto (the "Standard Terms and Conditions") are
hereby agreed to and incorporated herein by reference and made a part of this
Assignment and Assumption as if set forth herein in full.
For an agreed consideration, [the][each] Assignor hereby irrevocably sells and
assigns to [the Assignee][the respective Assignees], and [the][each] Assignee
hereby irrevocably purchases and assumes from [the Assignor][the respective
Assignors], subject to and in accordance with the Standard Terms and Conditions
and the Credit Agreement, as of the Effective Date inserted by the Agent as
contemplated below, (i) all of [the Assignor's][the respective Assignors']
rights and obligations in [its capacity as a [[Revolving][FILO] Lender][their
respective capacities as [Revolving][FILO] Lenders] under the Credit Agreement
and the other Loan Documents or instruments delivered pursuant thereto to the
extent related to the amount and percentage interest identified below of all of
such outstanding rights and obligations of [the Assignor][the respective
Assignors] under the respective facilities identified below (including, without
limitation, participations in L/C Obligations and Swing Line Loans included in
such facilities) and (ii) to
the extent permitted to be assigned under
applicable Law, all claims, suits, causes of action and any other right of [the
Assignor (in its capacity as a [Revolving][FILO] Lender)][the respective
Assignors (in their respective capacities as [Revolving][FILO] Lenders)] against
any Person, whether known or unknown, arising under or in connection with the
Credit Agreement, any other Loan Documents or the loan transactions governed
thereby or in any way based on or related to any of the foregoing, including,
but not limited to, contract claims, tort claims, malpractice claims, statutory
claims and all other claims at law or in equity related to the rights and
obligations sold and assigned pursuant to clause (i) above (the rights