WITH OR RESULT IN ANY BREACH OR CONTRAVENTION OF, OR THE CREATION OF ANY LIEN
(EXCEPT FOR PERMITTED LIENS) UNDER, (A) ANY ORDER, INJUNCTION, WRIT OR DECREE OF
ANY GOVERNMENTAL AUTHORITY OR ANY ARBITRAL AWARD TO WHICH SUCH PERSON OR ITS
PROPERTY IS SUBJECT OR (B) ANY CONTRACTUAL OBLIGATION TO WHICH SUCH PERSON IS A
PARTY, OTHER THAN, IN THE CASE OF THIS CLAUSE (B), CERTAIN OPERATING LEASES FOR
RETAIL STORES OF THE COMPANY AND ITS SUBSIDIARIES ("RETAIL LEASES") (X) WHICH
HAVE CHANGE OF CONTROL PROVISIONS THAT COULD BE CONTRAVENED BY THE DRI MERGER,
BUT (Y)(1) WHICH DO NOT PERTAIN TO MORE THAN ONE OF THE TOP 25 RETAIL LEASES
(RANKED BY AVERAGE WEEKLY SALES VOLUME FOR THE FISCAL YEAR ENDED DECEMBER 28,
2002) OR MORE THAN 20 OF ALL RETAIL LEASES AND (2) UNDER WHICH A DEFAULT BY
VIRTUE OF THE FAILURE TO OBTAIN THE CONSENT OF THE LANDLORDS THEREUNDER TO THE
DRI MERGER AND THE OTHER TRANSACTIONS CONTEMPLATED HEREBY COULD NOT,
INDIVIDUALLY OR IN THE AGGREGATE, REASONABLY BE EXPECTED TO HAVE A MATERIAL
ADVERSE EFFECT.
SECTION 5.03
GOVERNMENTAL AUTHORIZATION; OTHER CONSENTS.
EXCEPT AS SET FORTH
ON SCHEDULE 5.03 HERETO, NO APPROVAL, CONSENT, EXEMPTION, AUTHORIZATION, OR
OTHER ACTION BY, OR NOTICE TO, OR FILING WITH, ANY GOVERNMENTAL AUTHORITY OR ANY
OTHER PERSON IS NECESSARY OR REQUIRED IN CONNECTION WITH THE EXECUTION, DELIVERY
OR PERFORMANCE BY, OR ENFORCEMENT AGAINST, ANY LOAN PARTY OF THIS AGREEMENT OR
ANY OTHER TRANSACTION DOCUMENT TO WHICH IT IS A PARTY.
SECTION 5.04
BINDING EFFECT.
THIS AGREEMENT HAS BEEN, AND EACH OTHER TERM LOAN
DOCUMENT, WHEN DELIVERED HEREUNDER, WILL HAVE BEEN, DULY EXECUTED AND DELIVERED
BY EACH LOAN PARTY THAT IS PARTY THERETO.
THIS AGREEMENT CONSTITUTES, AND EACH
OTHER TERM LOAN DOCUMENT WHEN SO DELIVERED WILL CONSTITUTE, A LEGAL, VALID AND
BINDING OBLIGATION OF SUCH LOAN PARTY, ENFORCEABLE AGAINST EACH LOAN PARTY THAT
IS PARTY THERETO IN ACCORDANCE WITH ITS TERMS, EXCEPT (I) AS SUCH ENFORCEABILITY
MAY BE LIMITED BY APPLICABLE BANKRUPTCY, INSOLVENCY, REORGANIZATION, MORATORIUM
OR SIMILAR LAWS AFFECTING THE ENFORCEMENT OF CREDITORS' RIGHTS GENERALLY AND
(II) THAT RIGHTS OF ACCELERATION AND THE AVAILABILITY OF EQUITABLE REMEDIES MAY
BE LIMITED BY EQUITABLE PRINCIPLES OF GENERAL APPLICABILITY (REGARDLESS OF
WHETHER ENFORCEMENT IS SOUGHT BY PROCEEDINGS IN EQUITY OR AT LAW).
59
SECTION 5.05
FINANCIAL CONDITION; NO MATERIAL ADVERSE EFFECT.
(A)
AUDITED FINANCIAL STATEMENTS.
THE AUDITED FINANCIAL STATEMENTS:
(I) WERE PREPARED IN ACCORDANCE WITH GAAP CONSISTENTLY APPLIED THROUGHOUT THE
PERIODS COVERED THEREBY, EXCEPT AS OTHERWISE EXPRESSLY NOTED THEREIN; (II)
FAIRLY PRESENT IN ALL MATERIAL RESPECTS THE FINANCIAL CONDITION OF THE COMPANY
AND ITS SUBSIDIARIES AS OF THE DATE THEREOF AND THEIR RESULTS OF OPERATIONS FOR
THE RESPECTIVE PERIODS COVERED THEREBY IN ACCORDANCE WITH GAAP CONSISTENTLY
APPLIED THROUGHOUT THE PERIODS COVERED THEREBY, EXCEPT AS OTHERWISE EXPRESSLY
NOTED THEREIN; AND (III) EXCEPT AS DISCLOSED IN THE SEC FILINGS, SHOW ALL
MATERIAL INDEBTEDNESS AND OTHER LIABILITIES, DIRECT OR CONTINGENT, OF THE
COMPANY AND ITS SUBSIDIARIES AS OF THE DATE THEREOF, INCLUDING LIABILITIES FOR
TAXES, MATERIAL COMMITMENTS AND INDEBTEDNESS.
(B)