Exhibit 4(c)
[EXECUTION COPY]
AMENDMENT NO. 1
January 17, 1997
The Prudential Insurance Company
of America
Pruco Life Insurance Company
c/o Prudential Capital Group
0000 Xxxx Xxxxxx, Xxxxx 0000X
Xxxxxx, Xxxxx 00000
Ladies and Gentlemen:
We refer to the Note Agreement dated as of October 24,
1995 (the "Agreement") among the undersigned, Xxxxx Group, Inc.
(the "Company") and you. Unless otherwise defined herein, the
terms defined in the Agreement shall be used herein as therein
defined.
The Company has entered into a Credit Agreement dated as
of January 9, 1997 with certain lenders named therein and
Boatmen's National Bank of St. Louis, as Agent, and First Chicago
Capital Markets, Inc., as Syndication Agent (the "Credit
Agreement"). Certain of the covenants contained in the Credit
Agreement are more restrictive than the covenants contained in
the Agreement. Pursuant to paragraph 11P of the Agreement, the
Company has offered to amend the Agreement to incorporate such
covenants. In addition, for ease of administration, the Company
has requested that the holders of the Notes incorporate certain
other covenants from the Credit Agreement. Finally, the Credit
Agreement requires the Company to deliver guarantees from certain
Subsidiaries of the Company. The holders of the Notes and the
Lenders and the Agent under the Credit Agreement have entered
into a Sharing Agreement. The Company and the Guarantors are
entering into this Amendment to incorporate the Guarantee of the
Guarantors into the Agreement. The Company and the holders of
the Notes have agreed to amend the Agreement to accomplish these
objectives. Accordingly, it is hereby agreed by you and us as
follows:
Section 1. Amendments to Agreement. The Agreement is,
effective the date first above written, hereby amended as
follows:
Section 1.01. Paragraph 5. Affirmative Covenants.
Paragraph 5 is amended by adding at the end thereof a new
paragraph 5G to read as follows:
"5G. Additional Credit Parties.
(i) Domestic Subsidiaries. At any time any Person
becomes a Domestic Subsidiary having assets in excess of
$5,000,000, the Company will promptly notify the holders of
the Notes thereof and cause such Domestic Subsidiary to
become a Guarantor hereunder by (i) execution of a Joinder
Agreement, and (ii) delivery of supporting resolutions,
incumbency certificates, corporation formation and
organizational documentation and opinions of counsel as the
Required Holders may reasonably request.
(ii) Foreign Subsidiaries. At any time any Person
becomes a Foreign Subsidiary having assets in excess of
$5,000,000, the Company will promptly notify the holders of
the Notes thereof and cause delivery of supporting
resolutions, incumbency certificates, corporation formation
and organizational documentation and opinions of counsel as
the Required Holders may reasonably request."
Section 1.02. Paragraph 6. Negative Covenants.
Paragraph 6 is amended in full to read as follows:
"6. NEGATIVE COVENANTS. So long as any Note shall remain unpaid,
the Company covenants that:
6A. Consolidated Leverage Ratio. The Company will not
permit, at any time, the Consolidated Leverage Ratio to be
greater than:
From the Closing Date
to April 30, 1999 .55 to 1.0
May 1, 1999 and
thereafter .50 to 1.0
6B. Consolidated Fixed Charge Coverage. The Company will
not permit, as at the end of each of its fiscal quarters ending
during the periods set forth below, the Consolidated Fixed Charge
Coverage Ratio to be less than the ratio set forth below opposite
each such period:
Period Ratio
January 9, 1997 to August 2, 1997 1.30:1.0
August 3, 1997 through and including
August 1, 1998 1.35:1.0
August 2, 1998 through and including
July 31, 1999 1.40:1.0
August 1, 1999 and thereafter 1.45:1.0
6C. Consolidated Tangible Net Worth. The Company will not
permit, at any time and on any date of determination,
Consolidated Tangible Net Worth less than the sum of (i)
$177,000,000 plus (ii) an amount equal to 50% of the Consolidated
Net Income (if positive), for each full fiscal quarter of the
Company from and including the fiscal quarter beginning August 4,
1996 through and including the Company's fiscal quarter then most
recently ended on or prior to such date of determination plus
(iii) an amount equal to 100% of the Net Proceeds from any Equity
Transaction occurring after January 9, 1997.
6D. Restricted Payments. The Company will not make or
permit any Restricted Payment to occur, except that so long as no
Default or Event of Default shall exist immediately prior to or
after giving effect thereto, the Company may make Restricted
Payments in an aggregate amount not to exceed the sum of
(A) $20,000,000 plus
(B) an amount equal to 50% of cumulative Consolidated
Net Income (but only to the extent positive) accrued
quarterly from the beginning of the Company's fiscal quarter
beginning August 4, 1996 as reduced by the cumulative amount
of Restricted Payments made since August 4, 1996.
6E. Indebtedness. The Company will not, and will not permit
any of its Subsidiaries to create, incur or suffer to exist any
Indebtedness, except:
(i) Indebtedness arising or existing under this
Agreement and the Notes;
(ii) Indebtedness set forth in Schedule 6E, and
renewals, refinancing and extensions thereof (and which in
the case of the Indebtedness of the Company under the Credit
Agreement shall not have a maturity prior to January 9, 2000
and shall be on terms and conditions consistent with those
prevailing in the bank market at such time);
(iii) Capitalized Lease Obligations and Indebtedness
incurred, in each case, to provide all or a portion of the
purchase price or costs of construction of an asset, provided
that (i) such Indebtedness when incurred shall not exceed the
purchase price or cost of construction of such asset or, in
the case of a sale/leaseback transaction, the fair market
value of such asset, and (ii) no such Indebtedness shall be
refinanced for a principal amount in excess of the principal
balance outstanding thereon at the time of such refinancing;
(iv) Indebtedness and obligations owing under Rate
Hedging Obligations relating to the obligations under the
Credit Agreement and under interest rate, commodities and
foreign currency exchange protection agreements entered into
in the ordinary course of business to manage existing or
anticipated risks;
(v) unsecured intercompany Indebtedness as permitted
under paragraph 6G;
(vi) other unsecured Funded Debt of
(A) the Company to the extent that upon the
incurrence thereof no Default or Event of Default
shall exist immediately prior to or after giving
effect thereto on a Pro Forma Basis; and
(B) Subsidiaries of the Company which in the
aggregate does not exceed (I) $5,000,000 with
respect to that credit facility extended by The
First National Bank of Chicago in favor of Xxxxx
Group Dublin Limited, as amended, modified,
supplemented, extended and replaced, and (II)
$5,000,000, in all other cases;
(vii) commercial letters of credit outside of the
Credit Agreement supporting the importation of goods in the
ordinary course of business not to exceed in the aggregate at
any time outstanding $30,000,000 until September 15, 1997 and
$10,000,000 thereafter; and
(viii) Guaranty Obligations of Indebtedness permitted
under clauses (i) through (vii) of this paragraph 6E provided
that (a) the beneficiary of any Guaranty Obligation of a
Subsidiary is a party to and bound by the Sharing Agreement
or (b) such Guaranty Obligation is made by a Foreign
Subsidiary and the beneficiary thereof is not a party to and
bound by the Sharing Agreement ("Foreign non-Shared
Obligation"), and the sum of (I) all such Foreign non-Shared
Obligations plus (II) all Indebtedness permitted under
paragraph 6E(iii) plus (III) all Indebtedness of the Company
and its Subsidiaries secured by Liens permitted under
paragraph 6F(vii) shall not at any time exceed an amount
equal to 10% of Consolidated Tangible Net Worth.
6F. Liens. The Company will not and will not permit any
Subsidiary to create, assume or suffer to exist any Lien upon or
with respect to any of its properties or assets, whether now
owned or hereafter acquired, or any income or profits therefrom
(whether or not provision is made for the equal and ratable
securing of the Notes in accordance with the provisions of
paragraph 5D), except
(i) Liens for taxes, assessments or governmental
charges or levies on its Property if the same shall not at
the time be delinquent or thereafter can be paid without
penalty, or are being contested in good faith and by
appropriate proceedings and for which adequate reserves in
accordance with generally accepted principles of accounting
shall have been set aside on its books;
(ii) Liens imposed by law, such as carriers',
warehousemen's and mechanics' liens and other similar liens
arising in the ordinary course of business which secure
payment of obligations not more than 60 days past due or
which are being contested in good faith by appropriate
proceedings and for which adequate reserves shall have been
set aside on its books;
(iii) Liens arising out of pledges or deposits
under worker's compensation laws, unemployment insurance,
old age pensions, or other social security or retirement
benefits, or similar legislation;
(iv) Utility easements, building restrictions and such
other encumbrances or charges against real property as are
of a nature generally existing with respect to properties of
a similar character and which do not in any material way
affect the marketability of the same or interfere with the
use thereof in the business of the Company or the
Subsidiaries;
(v) Liens granted in connection with sales by Foreign
Subsidiaries, with recourse or with limited recourse, of
accounts receivable in an amount not to exceed $10,000,000
in any year that are otherwise permitted under paragraph 6I;
(vi) Liens on goods shipped under commercial letters of
credit, provided such Liens do not secure in excess of an
aggregate of $80,000,000 face amount of letters of credit at
any time;
(vii) Other statutory Liens or Liens created by
operation of law incidental to the conduct of its business
or the ownership of its property and assets which are not
incurred in connection with the borrowing of money or the
obtaining of advances or credit or guaranteeing the
obligations of a Person (including landlord liens) and
contractual landlord liens in jurisdictions that do not
provide for statutory landlord liens, and which do not in
the aggregate materially detract from the value of its
property or assets or materially impair the use thereof in
the operation of its business; and
(viii) Other Liens securing Indebtedness of the
Company or any Subsidiary provided that the sum of (a) all
Indebtedness permitted under paragraph 6E(iii) plus (b) all
Indebtedness of the Company and such Subsidiaries secured by
such Liens plus (c) all Foreign non-Shared Obligations shall
not at any time exceed an amount equal to 10% of
Consolidated Tangible Net Worth.
6G. Investments and Acquisitions. The Company will not,
nor will it permit any Subsidiary to, make or suffer to exist any
Investments (including without limitation, loans and advances to,
and other Investments in, Subsidiaries), or commitments therefor,
or create any Subsidiary or become or remain a partner in any
partnership or joint venture, or make any Acquisition of any
Person, except:
(i Short-term obligations of, or fully guaranteed by,
the United States of America;
(ii Commercial paper rated A-l or better by Standard
and Poor's Corporation or P-l or better by Xxxxx'x
Investors Service, Inc.;
(iii) Demand deposit accounts maintained in the
ordinary course of business;
(iv) Certificates of deposit issued by and time
deposits (a) with Shanghai Commercial Bank in an aggregate
amount not exceeding $10,000,000 and (b) with commercial
banks (whether domestic or foreign) having capital and
surplus in excess of $100,000,000;
(v) Investments in Domestic Credit Parties (including
the creation of Subsidiaries);
(vi) Investments in existence on January 9, 1997 and
described in Schedule 6G hereto;
(vii) Acquisitions of entities engaged in, or
supporting, substantially the same lines of business as
the Company and its Subsidiaries provided (a) if such
acquisition is of the capital stock or equity interests of
a Person, such Person shall (after giving effect to such
acquisition of capital stock or equity interests) be a
Subsidiary of the purchaser, (b) the Board of Directors of
the company which is the subject of the Acquisition shall
have approved the Acquisition, and (c) no Default or Event
of Default would exist after giving effect to such
Acquisition on a Pro Forma Basis;
(viii) Loans, advances or accounts receivable on
non-customary terms to independent retailers of the
products of the Company or any Subsidiary not in excess of
$15,000,000 in principal amount at any one time outstanding
with no more than an aggregate amount of $5,000,000 in
principal amount at any one time outstanding with any one
retailer;
(ix) promissory notes or deferred payment obligations
received in connection with permitted asset sales;
(x) securities received in connection with the
reorganization of a debtor, and/or any of its subsidiaries;
(xi) Investments by Foreign Subsidiaries in Foreign or
Domestic Subsidiaries (including the creation of
Subsidiaries); and
(xii) Investments in Persons (including the
creation of Subsidiaries) which are not otherwise permitted
by the terms of this paragraph 6G provided (a) the
aggregate outstanding amount of all such Investments shall
not at any time exceed an amount equal to $30,000,000 minus
the aggregate amount of the then outstanding Investments in
unconsolidated Subsidiaries, and (b) the aggregate amount
of all such Investments which are in different lines of
business than those conducted by the Company and its
Subsidiaries on January 9, 1997 shall not any time exceed
$10,000,000.
6H. Merger. The Company and any Subsidiary may merge into
or consolidate with any of themselves or any other Person, may
dissolve or liquidate into any of themselves or any other Person,
or may sell or transfer any of their assets to any of themselves
or any other Person, provided that (A) if the Company is a party
to a merger or consolidation it shall be the surviving
corporation, (B) if a Credit Party other than the Company is a
party to a merger or consolidation it shall be the surviving
corporation and if a Domestic Credit Party is a party to such a
merger or consolidation it shall be the surviving corporation,
(C) if the Company is a party to a dissolution or liquidation, it
shall receive the assets of the same and may not itself dissolve
or liquidate, (D) if a Credit Party other than the Company is a
party to a dissolution or liquidation it shall receive the assets
of the same, (E) no sale or transfer of any assets of any Credit
Party shall be made to any Person other than to another Credit
Party except as and to the extent allowed under paragraph 6G
below or as may be allowed elsewhere in this Agreement or except
upon good consideration received, and (F) immediately after the
completion of any merger, consolidation, dissolution, liquidation
or sale or transfer of any assets as described above in this
paragraph 6H, no Default or Event of Default shall have occurred
and be continuing on a Pro Forma Basis.
6I. Sale of Assets. The Company will not, nor will it
permit any Subsidiary to, lease, sell or otherwise dispose of its
Property, to any other Person except:
(i) Sales of inventory in the ordinary course of
business.
(ii) Leases, sales or other dispositions of its
Property that, together with all other Property of the Company
and its Subsidiaries previously leased, sold or disposed of as
permitted by this paragraph 6I during the twelve-month period
ending with the month in which any such lease, sale or other
disposition occurs, do not constitute a Substantial Portion of
the Property of the Company and its Subsidiaries.
6J. Affiliates. The Company will not, and will not permit
any Credit Parties to, enter into any transaction (including,
without limitation, the purchase or sale of any Property or
service) with, or make any payment or transfer to, any Affiliate
except in the ordinary course of business and pursuant to the
reasonable requirements of the Company's or such Credit Party's
business and upon fair and reasonable terms no less favorable to
the Company or such Credit Party than the Company or such Credit
Party would obtain in a comparable arms-length transaction.
6K. Capital Expenditures. The Company will not permit
Capital Expenditures (inclusive of acquisitions otherwise
permitted under the terms of this Agreement) for the Company and
its Subsidiaries as a group during any fiscal year to exceed the
sum of (i) $25,000,000 plus (ii) the unused portion of permitted
Capital Expenditures for the immediately preceding fiscal year
(excluding amounts carried-over from prior years).
6L. Investments and Loans. The Company will not permit any
of its Subsidiaries to lend money or extend credit or make
advances to any Person, or purchase or acquire any stock,
obligations or securities of, or any other interest in, or make
any capital contribution to, or otherwise make an Investment in,
any Person except as permitted pursuant to paragraph 6G.
6M. Fiscal Year. The Company will not change its fiscal
year, nor will it permit any Subsidiary to change its financial
reporting year.
6N. Borrowing Base. The Company will not permit (i) the
aggregate principal amount of the Bank Obligations under the
Credit Agreement to exceed the Borrowing Base or the aggregate
amount of LOC Obligations to exceed the LOC Committed Amount (as
defined in the Credit Agreement) or (ii) the Borrowing Base to be
less than $100,000,000."
Section 1.03. Paragraph 7A. Acceleration. Paragraph 7A is
amended:
(I) by amending clauses (iv), (v) and (vi) in their entirety
to read as follows:
"(iv) any representation or warranty made by any Credit
Party herein or by any Credit Party or any of its officers in any
writing furnished in connection with or pursuant to this Agreement
shall be false in any material respect on the date as of which
made; or
(v) the Company fails to perform or observe any agreement
contained in paragraph 6 other than clause (ii) of paragraph 6N; or
(vi) any Credit Party fails to perform or observe any
other agreement, term or condition contained herein and such
failure shall not be remedied within 30 days after any Responsible
Officer obtains knowledge thereof; or"
(II) by adding at the end thereof new Events of Default (xv)
through (xviii) to read as follows:
"(xv) any court, government or governmental agency shall
condemn, seize or otherwise appropriate, or take custody or control
of (each a "Condemnation"), all or any portion of the Property of
the Company and its Subsidiaries which, when taken together with
all other Property of the Company and its Subsidiaries so
condemned, seized, appropriated, or taken custody or control of,
during the twelve-month period ending with the month in which any
such Condemnation occurs, constitutes a Substantial Portion; or
(xvi) the Company or any of its Subsidiaries shall be the
subject of any proceeding or investigation pertaining to the
release by the Company or any of its Subsidiaries, or any other
Person of any toxic or hazardous waste or substance into the
environment, or any violation of any federal, state or local
environmental, health or safety law or regulation, which, in
either case, has a substantial likelihood of having a Material
Adverse Effect; or
(xvii) the Company shall fail to pay any Rate Hedging
Obligation with net liability in excess of $100,000 or the
Company shall breach of any term, provision or condition
contained in any agreement, device or arrangement giving rise to
any Rate Hedging Obligation (taking into account any applicable
grace periods and notice provisions); or
(xviii) except as to a Guarantor which is dissolved,
released or merged out of existence as permitted by the terms of
this Agreement, the guaranty given by any Guarantor hereunder or
any material provision thereof shall cease to be in full force and
effect, or any Guarantor hereunder or any Person acting by or on
behalf of such Guarantor shall deny or disaffirm such Guarantor's
obligations under such guaranty, or any Guarantor shall default in
the due performance or observance of any term, covenant or
agreement on its part to be performed or observed pursuant to any
guaranty;"
(III) by amending clause "(x)" of the proviso in the
remedies paragraph at the end of paragraph 7A that begins with
word "then" to read as follows:
"such event is an Event of Default specified in any of
clauses (i) to (vi), inclusive, or (xv) to (xviii), inclusive, in
this paragraph 7A."
Section 1.04. Xxxxxxxxx 00X. Other Terms. Paragraph 10 is
amended (I) by deleting the definitions of "Capital Expenditures",
"Capitalized Lease Obligation", "Cash Flow Available for Fixed
Charges", "Consolidated Capitalization", "Consolidated Net
Earnings", "Consolidated Tangible Net Worth", "Current Assets",
"Current Liabilities", "Extraordinary Cash Gains", "Extraordinary
Non-Cash Losses", "Fixed Charges", "Foreign Working Capital",
"Foreign Subsidiary of the Company", "Guarantee", "Indebtedness",
"Interest Expense", "Long-Term Debt", "Non-Recourse Obligations",
"Pre-tax Income", and "Subsidiary", and (II) by adding thereto the
following definitions in alphabetical order:
"'Acquisition' shall mean any transaction, or any series of
related transactions, consummated on or after January 9, 1997 by
which the Company or any of its Subsidiaries (i) acquires any
going concern, business or all or substantially all of the assets
of any firm, corporation or division thereof, or limited liability
company, whether through purchase of assets, merger or otherwise
or (ii) directly or indirectly acquires (in one transaction or as
the most recent transaction in a series of transactions) at least
a majority (in number of votes) of the securities of a corporation
which have ordinary voting power for the election of directors
(other than securities having such power only by reason of the
happening of a contingency) or a majority (by percentage or voting
power) of the outstanding partnership interests of a partnership.
'Additional Credit Party' shall mean each Person that
becomes a Guarantor after January 9, 1997 by execution of a
Joinder Agreement.
'Attributed Principal Amount' shall mean, on any day, with
respect to any Securitization Transaction entered into by the
Company or any of its Subsidiaries, the aggregate amount (with
respect to any such transaction, the "Invested Amount") paid to,
or borrowed by, such Person as of such date under such
Securitization Transaction, minus the aggregate amount received by
the applicable Receivables Financier and applied to the reduction
of the Invested Amount under such Securitization Transaction.
'Bank Obligations' shall mean, collectively, the Revolving
Loans (as defined in the Credit Agreement) and the LOC Obligations
(as defined in the Credit Agreement).
'Borrowing Base' shall have the meaning specified in the
Credit Agreement.
'Capital Expenditures' shall mean all expenditures which in
accordance with GAAP would be classified as capital expenditures.
'Capitalized Lease' of a Person shall mean any lease of
Property by such Person as lessee which would be capitalized on a
balance sheet of such Person prepared in accordance with GAAP.
'Capitalized Lease Obligations' of a Person shall mean the
amount of the obligations of such Person under Capitalized Leases
which would be shown as a liability on a balance sheet of such
Person prepared in accordance with GAAP.
'Consolidated Adjusted EBITDAR' shall mean for any period
for the Company and its Subsidiaries, the sum of Consolidated
EBITDA plus rent expense, in each case on a consolidated basis
determined in accordance with GAAP applied on a consistent basis.
Except as expressly provided otherwise, the applicable period
shall be for the four consecutive quarters ending as of the date
of determination.
'Consolidated Capitalization' shall mean, at any date of
determination, the sum of (i) Consolidated Net Worth plus (ii)
Consolidated Funded Debt.
'Consolidated EBITDA' shall mean for any period for the
Company and its Subsidiaries, the sum of Consolidated Net Income
plus Consolidated Interest Expense plus all provisions for any
Federal, state or other domestic and foreign income taxes plus
depreciation and amortization, in each case on a consolidated
basis determined in accordance with GAAP applied on a consistent
basis. Except as expressly provided otherwise, the applicable
period shall be for the four consecutive quarters ending as of the
date of determination.
'Consolidated Fixed Charges' shall mean for any period for
the Company and its Subsidiaries, the sum of Consolidated Interest
Expense plus rent expense, in each case on a consolidated basis
determined in accordance with GAAP applied on a consistent basis.
Except as expressly provided otherwise, the applicable period
shall be for the four consecutive quarters ending as of the date
of determination.
'Consolidated Fixed Charge Coverage Ratio' shall mean the
ratio of Consolidated Adjusted EBITDAR to Consolidated Fixed
Charges.
'Consolidated Funded Debt' shall mean Funded Debt of the
Company and its Subsidiaries determined on a consolidated basis in
accordance with GAAP applied on a consistent basis.
'Consolidated Intangible Assets' shall mean, for the Company
and its Subsidiaries on a consolidated basis, the amount (to the
extent reflected in determining such consolidated stockholders'
equity) of (i) all write-ups (other than write-ups resulting from
foreign currency translations and write-ups of assets of a going
concern business made within twelve months of acquisition)
subsequent to January 9, 1997 in the book value of any asset owned
by the Company or a Subsidiary and (ii) all unamortized debt
discount and expense, unamortized deferred charges (other than
prepaid expenses and net pension assets recognized on the
Company's consolidated balance sheet), goodwill, patents,
trademarks, service marks, trade names, copyrights, organization
or developmental expenses and other items treated as intangibles
under GAAP.
'Consolidated Interest Expense' shall mean for any period
for the Company and its Subsidiaries, all interest expense,
including the amortization of debt discount and premium, the
interest component under Capitalized Leases and the implied
interest component under Securitization Transactions, in each case
on a consolidated basis determined in accordance with GAAP applied
on a consolidated basis. Except as expressly provided otherwise,
the applicable period shall be for the four consecutive quarters
ending as of the date of determination.
'Consolidated Leverage Ratio' shall mean, as of any day, the
ratio of Consolidated Funded Debt to Consolidated Capitalization.
'Consolidated Net Income' shall mean for any period, the net
income of the Company and its Subsidiaries on a consolidated basis
determined in accordance with GAAP applied on a consistent basis,
but excluding for purposes of determining the Consolidated Fixed
Charge Coverage Ratio, any extraordinary gains or losses, and any
non-recurring non-cash gains and losses, and any taxes on such
excluded gains and losses and any tax deductions or credits on
account of any such excluded gains and losses.
'Consolidated Net Worth' shall mean total stockholders'
equity for the Company and its Subsidiaries on a consolidated
basis as determined in accordance with GAAP applied on a
consistent basis.
'Consolidated Tangible Net Worth' shall mean total
stockholders' equity minus Consolidated Intangible Assets, in each
case for the Company and its Subsidiaries on a consolidated basis
as determined in accordance with GAAP applied on a consistent
basis.
'Credit Agreement' shall mean the $155,000,000 Credit
Agreement dated as of January 9, 1997 among the Company and
certain of its Subsidiaries, as Guarantors, and the lenders named
therein and the Boatmen's National Bank of St. Louis, as Agent,
and First Chicago Capital Markets, Inc., as Syndication Agent, as
amended from time to time.
'Credit Party' shall mean each of the Company and the
Guarantors.
'Domestic Credit Party' shall mean any Credit Party which is
incorporated or organized under the laws of any State of the
United States or the District of Columbia.
'Domestic Subsidiary' shall mean any Subsidiary which is
incorporated or organized under the laws of any State of the
United States or the District of Columbia.
'Equity Transaction' shall mean, with respect to the Company
or any of its Subsidiaries, any issuance of shares of its capital
stock or other equity interest; provided that any Equity
Transaction shall not include any such issuance to the Company or
its Subsidiaries.
'Foreign non-Shared Obligation' shall have the meaning
specified in paragraph 6E(viii).
'Foreign Subsidiary' shall mean a Subsidiary which is not a
Domestic Subsidiary.
'Funded Debt' shall mean, with respect to any Person,
without duplication, (i) all Indebtedness of such Person for
borrowed money, (ii) all purchase money Indebtedness of such
Person, including without limitation the principal portion of all
obligations of such Person under Capitalized Leases, (iii) all
Guaranty Obligations of such Person with respect to Funded Debt of
another Person, (iv) the maximum available amount of all standby
letters of credit or acceptances issued or created for the account
of such Person, (v) all Funded Debt of another Person secured by a
Lien on any Property of such Person, whether or not such Funded
Debt has been assumed, provided that for purposes hereof the
amount of such Funded Debt shall be limited to the greater of (A)
the amount of such Funded Debt as to which there is recourse to
such Person and (B) the fair market value of the property which is
subject to the Lien, (vi) the outstanding Attributed Principal
Amount under any Securitization Transaction, and (vii) the
principal balance outstanding under any synthetic lease, tax
retention operatng lease, off-balance sheet loan or similar
off-balance sheet financing product to which such Person is a party,
where such transaction is considered borrowed money indebtedness
for tax purposes but is classified as an operating lease in
accordance with GAAP. The Funded Debt of any Person shall include
the Funded Debt of any partnership or joint venture in which such
Person is a general partner or joint venturer, but only to the
extent to which there is recourse to such Person for the payment
of such Funded Debt.
'Governmental Authority' shall mean any Federal, state,
local or foreign court or governmental agency, authority,
instrumentality or regulatory body.
'Guaranteed Obligations' shall mean, as to each Guarantor,
without duplication, (i) all obligations of the Company to the
holders of the Notes, whenever arising, under this Agreement or
the Notes relating to the obligations hereunder including, without
limitation, the principal of, Yield-Maintenance Amount, if any,
and interest on, and any other amounts due under, the Notes, and
(ii) all liabilities and obligations, whenever arising, owing from
the Company to any holder of a Note or any Affiliate of a holder
of a Note, arising under any Hedging Agreement relating to the
Notes.
'Guarantor' shall mean the Company and each of those other
Persons identified as a "Guarantor" on the signature pages hereto,
and each Additional Credit Party which may hereafter execute a
Joinder Agreement, together with their successors and permitted
assigns.
'Guaranty Obligations' shall mean, with respect to any
Person, without duplication, any obligations of such Person (other
than endorsements in the ordinary course of business of negotiable
instruments for deposit or collection) guaranteeing or intended to
guarantee any Indebtedness of any other Person in any manner,
whether direct or indirect, and including without limitation any
obligation, whether or not contingent, (i) to purchase any such
Indebtedness or any Property constituting security therefor, (ii)
to advance or provide funds or other support for the payment or
purchase of any such Indebtedness or to maintain working capital,
solvency or other balance sheet condition of such other Person
(including without limitation keep well agreements, maintenance
agreements, comfort letters or similar agreements or arrangements)
for the benefit of any holder of Indebtedness of such other
Person, (iii) to lease or purchase Property, securities or
services primarily for the purpose of assuring the holder of such
Indebtedness, or (iv) to otherwise assure or hold harmless the
holder of such Indebtedness against loss in respect thereof. The
amount of any Guaranty Obligation hereunder shall (subject to any
limitations set forth therein) be deemed to be an amount equal to
the outstanding principal amount (or maximum principal amount, if
larger) of the Indebtedness in respect of which such Guaranty
Obligation is made.
'Hedging Agreements' shall mean any interest rate protection
agreement or foreign currency exchange agreement between the
Company and any holder of Notes or any affiliate of a holder.
'Indebtedness' of any Person shall mean (i) all obligations
of such Person for borrowed money, (ii) all obligations of such
Person evidenced by bonds, debentures, notes or similar
instruments, or upon which interest payments are customarily made,
(iii) all obligations of such Person under conditional sale or
other title retention agreements relating to Property purchased by
such Person (other than customary reservations or retentions of
title under agreements with suppliers entered into in the ordinary
course of business), (iv) all obligations of such Person issued or
assumed as the deferred purchase price of Property or services
purchased by such Person (other than trade debt incurred in the
ordinary course of business and due within six months of the
incurrence thereof) which would appear as liabilities on a balance
sheet of such Person, (v) all obligations of such Person under
take-or-pay or similar arrangements or under commodities
agreements, (vi) all Indebtedness of others secured by (or for
which the holder of such Indebtedness has an existing right,
contingent or otherwise, to be secured by) any Lien on, or payable
out of the proceeds of production from, Property owned or acquired
by such Person, whether or not the obligations secured thereby
have been assumed, provided that for purposes hereof the amount of
such Indebtedness shall be limited to the greater of (A) the
amount of such Indebtedness as to which there is recourse to such
Person and (B) the fair market value of the property which is
subject to the Lien, (vii) all Guaranty Obligations of such
Person, (viii) the principal portion of all obligations of such
Person under Capitalized Leases, (ix) the net liabilities in
respect of Rate Hedging Obligations having a term in excess of one
year from the date of the creation thereof, to the extent that the
aggregate amount of such net liabilities exceeds $5,000,000, (x)
the maximum amount of all standby letters of credit issued or
bankers' acceptances facilities created for the account of such
Person and, without duplication, all drafts drawn thereunder (to
the extent unreimbursed), (xi) all preferred stock issued by such
Person and required by the terms thereof to be redeemed, or for
which mandatory sinking fund payments are due, by a fixed date,
(xii) the outstanding Attributed Principal Amount under any
Securitization Financing and (xiii) the principal balance
outstanding under any synthetic lease, tax retention operating
lease, off-balance sheet loan or similar off-balance sheet
financing product to which such Person is a party, where such
transaction is considered borrowed money indebtedness for tax
purposes but is classified as an operating lease in accordance
with GAAP. 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, but only to the
extent to which there is recourse to such Person for payment of
such Indebtedness.
'Investment' of a Person shall mean any loan, advance (other
than commission, travel and similar advances to officers and
employees made in the ordinary course of business), extension of
credit (other than accounts receivable, notes receivable and
prepaid expenses arising in the ordinary course of business on
terms customary in the trade), deposit account or contribution of
capital by such Person to any other Person or any investment in,
or purchase or other acquisition of, the stock, partnership
interests, joint venture interests, notes, debentures or other
securities of any other Person made by such Person.
'Joinder Agreement' shall mean a Joinder Agreement
substantially in the form of Exhibit C hereto, executed and
delivered by a Guarantor after January 9, 1997 in accordance with
the provisions of paragraph 5G.
'Material Adverse Effect' shall mean a material adverse
effect on (i) the business, Property, condition (financial or
otherwise), results of operation, or prospects of the company and
its Subsidiaries taken as a whole, (ii) the ability of the Credit
Parties, as a group, to perform their obligations under this
Agreement or the Notes, or (iii) the validity or enforceability of
this Agreement of the Notes or the rights or remedies of the
holders of the Notes.
'Net Proceeds' shall mean gross cash proceeds (including any
cash received by way of deferred payment pursuant to a promissory
note, receivable or otherwise, but only as and when received)
received in connection with an Equity Transaction net of (i)
reasonable transaction costs, including underwriting discounts and
commissions, and (ii) estimated taxes payable in connection
therewith.
'Pro Forma Basis' shall mean, with respect to any
transaction, that such transaction shall be deemed to have
occurred as of the first day of the four fiscal-quarter period
ending as of the most recent fiscal quarter end preceding the date
of such transaction with respect to which the holders of the Notes
have received the officer's certificate in accordance with the
provisions of the penultimate paragraph of paragraph 5A. As used
herein, "Transaction" shall mean (i) the incurrence of Funded Debt
in accordance with the provisions of paragraph 6E(vi), and (ii)
any corporate merger or consolidation as referred to in paragraph
6H and any Acquisition referred to in paragraph 6G.
'Property' of a Person shall mean any and all property,
whether real, personal, tangible, intangible, or mixed, of such
Person, or other assets owned, leased or operated by such Person.
'Receivables' shall mean any right of payment from or on
behalf of any obligor, whether constituting an account, chattel
paper, instrument, general intangible or otherwise, arising from
the sale by the Company or any of its Subsidiaries of merchandise
or services, and monies due thereunder, security in the
merchandise and services financed thereby, records related
thereto, and the right to payment of any interest or finance
charges and other obligations with respect thereto, proceeds from
claims on insurance policies related thereto, any other proceeds
related thereto, and any other related rights.
'Receivables Financier' shall mean, in connection with a
Securitization Transaction, the Person which provides financing
for such transaction whether by purchase, loan or otherwise in
respect of Receivables.
'Restricted Payment' shall mean (i) any dividend or other
distribution, direct or indirect, on account of any shares of any
class of stock now or hereafter outstanding, except (A) a dividend
payable solely in shares of that class to the holders of that
class and (B) dividends and other distributions payable to a
Credit Party, (ii) any redemption, retirement, sinking fund or
similar payment, purchase or other acquisition for value, direct
or indirect, of any shares of any class of stock now or hereafter
outstanding, and (iii) any payment made to retire, or to obtain
the surrender of, any outstanding warrants, options or other
rights to acquire shares of any class of stock now or hereafter
outstanding.
'Securitization Transaction' shall mean any financing
transaction or series of financing transactions that have been or
may be entered into by the Company or any of its Subsidiaries
pursuant to which the Company or any such Subsidiary may sell,
convey or otherwise transfer to (i) a Subsidiary or affiliate, or
(ii) any other Person, or may grant a security interest in, any
Receivables or interests therein secured by merchandise or
services financed thereby (whether such Receivables are then
existing or arising in the future) of the Company or any such
Subsidiary, and any assets related thereto, including without
limitation, all security interests in merchandise or services
financed thereby, the proceeds of such Receivables, and other
assets which are customarily sold or in respect of which security
interests are customarily granted in connection with
securitization transactions involving such assets.
'Sharing Agreement' shall mean the Sharing Agreement in the
form attached hereto as Exhibit D.
'Subsidiary' of a Person shall mean (i) any corporation more
than 50% of the outstanding securities having ordinary voting
power of which shall at the time be owned or controlled, directly
of indirectly, by such Person or by one or more of its
Subsidiaries or by such Person and one or more of its
Subsidiaries, (ii) any partnership, association, joint venture or
similar business organization more than 50% of the ownership
interests having ordinary voting power of which shall at the time
be so owned or controlled, or (iii) any other entity the accounts
of which would be consolidated with those of such person in such
Person's consolidated financial statements. Unless otherwise
expressly provided, all references herein to a "Subsidiary" shall
mean a Subsidiary of the Company.
'Substantial Portion' shall mean, with respect to the
Property of the Company and its Subsidiaries, Property which (i)
in any fiscal year represents more than 10% of the consolidated
assets of the Company and its Subsidiaries as of the date of the
most recent annual financial statements delivered in accordance
with paragraph 5A(ii) is responsible for more than (a) 10%, of the
consolidated net sales or (b) 10% of the consolidated net income
of the Company and its Subsidiaries, in each case as reflected in
the financial statements referred to in clause (i) above.
Section 1.05. Paragraph 10C. Accounting Principles, Terms
and Determinations. paragraph 10C is amended by amending the
first sentence thereof in full to read as follows:
"All references in this Agreement to "generally accepted
accounting principles" or "GAAP" shall be deemed referred to
generally accepted accounting principles in effect in the United
States at the time of application thereof."
Section 1.06. Paragraph 12. Guaranty. The Agreement is
hereby amended by adding a new paragraph 12 immediately following
paragraph 11 which will read as follows:
"12. GUARANTY
12A. The Guaranty. Each of the Guarantors hereby jointly
and severally, irrevocably and unconditionally, guarantees to each
holder of the Notes, to each affiliate of a holder of the Notes
that enters into a Hedging Agreement the prompt payment of the
Guaranteed Obligations in full when due (whether at stated
maturity, as a mandatory prepayment, by acceleration or otherwise)
strictly in accordance with the terms thereof. The Guarantors
hereby further agree that if any of the Guaranteed Obligations are
not paid in full when due (whether at stated maturity, as a
mandatory prepayment, by acceleration or otherwise), the
Guarantors will, jointly and severally, promptly pay the same,
without any demand or notice whatsoever, and that in the case of
any extension of time of payment or renewal of any of the
Guaranteed Obligations, the same will be promptly paid in full
when due (whether at extended maturity, as a mandatory prepayment,
by acceleration or otherwise) in accordance with the terms of such
extension or renewal.
Notwithstanding any provision to the contrary contained
herein or in any Notes or Hedging Agreement, to the extent the
obligations of a Guarantor shall be adjudicated to be invalid or
unenforceable for any reason (including, without limitation,
because of any applicable state or federal law relating to
fraudulent conveyances or transfers) then the obligations of each
Guarantor hereunder shall be limited to the maximum amount that is
permissible under applicable law (whether federal or state and
including, without limitation, the Bankruptcy Law). This Guaranty
is a guaranty of payment and not of collection.
12B. Obligations Unconditional. The obligations of the
Guarantors under paragraph 12B hereof are joint and several,
absolute and unconditional, irrespective of the value,
genuineness, validity, regularity or enforceability of this
Agreement or the Notes, the Hedging Agreements, or any other
agreement or instrument referred to herein or therein, or any
substitution, release or exchange of any other guarantee of or
security for any of the Guaranteed Obligations, and, to the
fullest extent permitted by applicable law, irrespective of any
other circumstance whatsoever which might otherwise constitute a
legal or equitable discharge or defense of a surety or guarantor,
it being the intent of this paragraph 12B that the obligations of
the Guarantors hereunder shall be absolute and unconditional under
any and all circumstances. Each Guarantor agrees that such
Guarantor shall have no right of subrogation, indemnity,
reimbursement or contribution against the Company or any other
Guarantor of the Guaranteed Obligations for amounts paid under
this Guaranty until such time as the holder of the Notes (and any
affiliates of holders of the Notes entering into Hedging
Agreements) have been paid in full, and no Person or Governmental
Authority shall have any right to request any return or
reimbursement of funds from the holders of the Notes in connection
with monies received under the this Agreement or the Notes or
Hedging Agreements. Without limiting the generality of the
foregoing, it is agreed that, to the fullest extent permitted by
law, the occurrence of any one or more of the following shall not
alter or impair the liability of any Guarantor hereunder which
shall remain absolute and unconditional as described above:
(i) at any time or from time to time, without notice to
any Guarantor, the time for any performance of or compliance
with any of the Guaranteed Obligations shall be extended, or
such performance or compliance shall be waived;
(ii) any of the acts mentioned in any of the provisions
of this Agreement or the Notes, any Hedging Agreement or any
other agreement or instrument referred to in the this
Agreement or the Notes or Hedging Agreements shall be done
or omitted;
(iii) the maturity of any of the Guaranteed Obligations
shall be accelerated, or any of the Guaranteed Obligations
shall be modified, supplemented or amended in any respect,
or any right under any of this Agreement or the Notes, any
Hedging Agreement or any other agreement or instrument
referred to in this Agreement or the Notes or Hedging
Agreements shall be waived or any other guarantee of any of
the Guaranteed Obligations or any security therefor shall be
released or exchanged in whole or in part or otherwise dealt
with;
(iv) any Lien granted to, or in favor of, any holder of
the Notes or any affiliate thereof, as security for any of
the Guaranteed Obligations shall fail to attach or be
perfected; or
(v) any of the Guaranteed Obligations shall be
determined to be void or voidable (including, without
limitation, for the benefit of any creditor of any
Guarantor) or shall be subordinated to the claims of any
Person (including, without limitation, any creditor of any
Guarantor).
With respect to its obligations hereunder, each Guarantor hereby
expressly waives acceptance of this guaranty, diligence,
presentment, demand of payment, protest and all notices
whatsoever, and any requirement that any holder of Notes exhaust
any right, power or remedy or proceed against any Person under
any of this Agreement or the Notes, any Hedging Agreement or any
other agreement or instrument referred to in this Agreement or
the Notes or Hedging Agreements, or against any other Person
under any other guarantee of, or security for, any of the
Guaranteed Obligations.
12C. Reinstatement. The obligations of the Guarantors under
this paragraph 12 shall be automatically reinstated if and to the
extent that for any reason any payment by or on behalf of any
Person in respect of the Guaranteed Obligations is rescinded or
must be otherwise restored by any holder of any of the Guaranteed
Obligations, whether as a result of any proceedings in bankruptcy
or reorganization or otherwise, and each Guarantor agrees that it
will indemnify each holder of the Notes on demand for all
reasonable costs and expenses (including, without limitation,
fees and expenses of counsel) incurred by such holder in
connection with such rescission or restoration, including any
such costs and expenses incurred in defending against any claim
alleging that such payment constituted a preference, fraudulent
transfer or similar payment under any bankruptcy, insolvency or
similar law.
12D. Remedies. The Guarantors agree that, to the fullest
extent permitted by law, as between the Guarantors, on the one
hand, and the holders of the Notes, on the other hand, the
Guaranteed Obligations may be declared to be forthwith due and
payable as provided in paragraph 7A hereof (and shall be deemed
to have become automatically due and payable in the circumstances
provided in said paragraph 7A) for purposes of paragraph 12A
hereof notwithstanding any stay, injunction or other prohibition
preventing such declaration (or preventing the Guaranteed
Obligations from becoming automatically due and payable) as
against any other Person and that, in the event of such
declaration (or the Guaranteed Obligations being deemed to have
become automatically due and payable), the Guaranteed Obligations
(whether or not due and payable by any other Person) shall
forthwith become due and payable by the Guarantors for purposes
of said paragraph 12A.
12E. Rights of Contribution. The Guarantors hereby agree, as
among themselves, that if any Guarantor shall become an Excess
Funding Guarantor (as defined below), each other Guarantor shall,
on demand of such Excess Funding Guarantor (but subject to the
succeeding provisions of this paragraph 12E), pay to such Excess
Funding Guarantor an amount equal to such Guarantor's Pro Rata
Share (as defined below and determined, for this purpose, without
reference to the properties, assets, liabilities and debts of
such Excess Funding Guarantor) of such Excess Payment (as defined
below). The payment obligation of any Guarantor to any Excess
Funding Guarantor under this paragraph 12E shall be subordinate
and subject in right of payment to the prior payment in full of
the obligations of such Guarantor under the other provisions of
this paragraph 12, and such Excess Funding Guarantor shall not
exercise any right or remedy with respect to such excess until
payment and satisfaction in full of all of such obligations. For
purposes hereof, (i) "Excess Funding Guarantor" shall mean, in
respect of any obligations arising under the other provisions of
this paragraph 12 (hereafter, the "Guarantied Obligations"), a
Guarantor that has paid an amount in excess of its Pro Rata Share
of the Guarantied Obligations; (ii) "Excess Payment" shall mean,
in respect of any Guarantied Obligations, the amount paid by an
Excess Funding Guarantor in excess of its Pro Rata Share of such
Guarantied Obligations; and (iii) "Pro Rata Share", for the
purposes of this paragraph 12E, shall mean, for any Guarantor,
the ratio (expressed as a percentage) of (a) the amount by which
the aggregate present fair saleable value of all of its assets
and properties exceeds the amount of all debts and liabilities of
such Guarantor (including contingent, subordinated, unmatured,
and unliquidated liabilities, but excluding the obligations of
such Guarantor hereunder) to (b) the amount by which the
aggregate present fair saleable value of all assets and other
properties of the Company and all of the Guarantors exceeds the
amount of all of the debts and liabilities (including contingent,
subordinated, unmatured, and unliquidated liabilities, but
excluding the obligations of the Company and the Guarantors
hereunder) of the Company and all of the Guarantors, all as of
January 9, 1997 (if any Guarantor becomes a party hereto
subsequent to January 9, 1997, then for the purposes of this
paragraph 12E such subsequent Guarantor shall be deemed to have
been a Guarantor as of January 9, 1997 and the information
pertaining to, and only pertaining to, such Guarantor as of the
date such Guarantor became a Guarantor shall be deemed true as of
January 9, 1997).
12F. Continuing Guarantee. The guarantee in this paragraph
12 is a continuing guarantee, and shall apply to all Guaranteed
Obligations whenever arising.
12G. Representations and Warranties of the Guarantors. Each
Guarantor represents and warrants as follows:
(a) Incorporation, Good Standing and Location. Each
Guarantor is (i) a corporation duly incorporated, validly
existing and in good standing under the laws of its state of
incorporation, (ii) duly qualified and authorized to do business
and in good standing in every other jurisdiction where the nature
of its business requires such qualification and (iii) has all
requisite corporate power and authority, and all governmental
licenses and permits, to own and operate its properties and to
carry on its business as presently conducted. Each Guarantor has
the requisite corporate power to enter into and perform its
obligations under the guaranty in this paragraph 12.
(b) Approval and Enforceability of Guaranty. The execution,
delivery and performance of this guaranty have been duly
authorized by all necessary corporate action on the part of each
Guarantor. This guaranty has been duly and validly executed and
delivered and constitutes the legal, valid and binding obligation
of each Guarantor, enforceable against it in accordance with its
terms, subject to applicable bankruptcy, insolvency, moratorium,
reorganization, receivership and similar laws affecting the
rights and remedies of creditors generally.
Section 1.07. Exhibits. The Joinder Agreement in the form
of Exhibit C hereto shall be added to the Agreement as Exhibit C.
The Sharing Agreement in the form of Exhibit D hereto shall be
added to the Agreement as Exhibit D.
Section 2. Conditions to Effectiveness. This Amendment
shall become effective, when and only when,
(a) each of the holder of the Notes shall have received
counterparts of this Amendment which shall have been executed by
the Company, each Guarantor, and each of the holder of the Notes;
(b) each of the holders of the Notes shall have received
certified copies of the resolutions of the Board of Directors of
each Guarantor approving the Agreement, as amended by this
Amendment, and the matters contemplated hereby; and
(c) the Company shall have paid to you by wire transfer
immediately available funds an amendment fee of $300,000 to be
wired to the following account:
The Bank of New York
New York, New York
ABA # 000-000-000
For the Account of The Prudential
Insurance Company of America
Account # 000-0000-000
Section 3. Representations and Warranties. Each Credit
Party hereby represents and warrants that the representations and
warranties contained in paragraph 8 of the Agreement are true and
correct on the date hereof as of made on such date, except that
the references to "this Agreement" shall mean the Agreement as
amended by this Amendment.
Section 4. Miscellaneous.
4.01. Effect of Amendment. On and after the effective date
of this Amendment, each reference in the Agreement to "this
Agreement", "hereunder", "hereof", or words of like import
referring to the Agreement, and each reference in the Notes to
"the Agreement", "thereunder", "thereof", or words of like import
referring to the Agreement, shall mean the Agreement as amended
by this Amendment. The Agreement, as amended by this Amendment,
is and shall continue to be in full force and effect and is
hereby in all respects ratified and confirmed. The execution,
delivery and effectiveness of this Amendment shall not, except as
expressly provided herein, operate as a waiver of any right,
power or remedy under the Agreement nor constitute a waiver of
any provision of the Agreement.
4.02. Counterparts. This Amendment may be executed in any
number of counterparts and by any combination of the parties
hereto in separate counterparts, each of which counterparts shall
be an original and all of which taken together shall constitute
one and the same Amendment.
If you agree to the terms and provisions hereof, please
evidence your agreement by executing and returning at least a
counterpart of this Amendment to the Company at its address at
0000 Xxxxxxxx Xxx., Xx. Xxxxx, Xxxxxxxx 00000, Attention:
Treasurer.
Very truly yours,
XXXXX GROUP, INC.
By /s/ Xxxxxx X. Xxxxx
Title: Vice President & Treasurer
GUARANTORS
XXXXX GROUP INTERNATIONAL, INC.
XXXXX GROUP RETAIL, INC.
PAGODA TRADING COMPANY, INC.
XXXXXX XXXX ASSOCIATES, INC.
By: /s/ Xxxxxx X. Xxxxx
Title: Vice President & Treasuer
Agreed as of the date
first above written:
THE PRUDENTIAL INSURANCE COMPANY
OF AMERICA
By:________________________________
Vice President
PRUCO LIFE INSURANCE COMPANY
By:________________________________
Vice President
EXHIBIT C
Form of Joinder Agreement
THIS JOINDER AGREEMENT (the "Joinder Agreement"), dated as
of _____________, 19__, is by and between
_______________________, a____________________ (the "Applicant
Guarantor"), and _____________________, the holders of the Notes
issued pursuant to the Note Agreement dated as of October 24,
1995 (as amended and modified, the "Agreement") by and among
XXXXX GROUP, INC., the Guarantors and The Prudential Insurance
Company of America and Pruco Life Insurance Company. All of the
defined terms in the Agreement are incorporated herein by
reference.
The Applicant Guarantor has indicated its desire to become a
Guarantor or is required by the terms of paragraph 5G of the
Agreement to become a Guarantor under the Agreement.
Accordingly, the Applicant Guarantor hereby agrees as
follows with the holders of the Notes, for the benefit of such
holders:
1. The Applicant Guarantor hereby acknowledges, agrees and
confirms that, by its execution of this Joinder Agreement, the
Applicant Guarantor will be deemed to be a party to the Agreement
and a "Guarantor" for all purposes of the Agreement and the
Notes, and shall have all of the obligations of a Guarantor
thereunder as if it had executed the Agreement. The Applicant
Guarantor agrees to be bound by, all of the terms, provisions and
conditions contained in the Agreement and the Sharing Agreement,
including without limitation (i) all of the affirmative and
negative covenants set forth in paragraphs 5 and 6 of the
Agreement and (ii) all of the undertakings and waivers set forth
in paragraph 12 of the Agreement. Without limiting the
generality of the foregoing terms of this paragraph 1, the
Applicant Guarantor hereby (A) jointly and severally together
with the other Guarantors, guarantees to each holder of Notes as
provided in paragraph 12 of the Agreement, the prompt payment and
performance of the Guaranteed Obligations in full when due
(whether at stated maturity, as a mandatory prepayment, by
acceleration, as a mandatory cash collateralization or otherwise)
strictly in accordance with the terms thereof. and (B) agrees
that if any of the Guaranteed Obligations are not paid or
performed in full when due (whether at stated maturity, as a
mandatory prepayment, by acceleration, as a mandatory cash
collateralization or otherwise), the Applicant Guarantor will,
jointly and severally together with the other Guarantors,
promptly pay and perform the same, without any demand or notice
whatsoever, and that in the case of any extension of time of
payment or renewal of any of the Guaranteed Obligations, the same
will be promptly paid in full when due (whether at extended
maturity, as a mandatory prepayment, by acceleration or
otherwise) in accordance with the terms of such extension or
renewal.
2. The Applicant Guarantor acknowledges and confirms that
it has received a copy of the Agreement and the Schedules and
Exhibits thereto. The information on the Schedules to the
Agreement are amended to provide the information shown on the
attached Schedule A.
3. The Applicant Guarantor hereby waives acceptance by the
holders of the Notes of the guaranty by the Applicant Guarantor
under paragraph 12 of the Agreement upon the execution of this
Joinder Agreement by the Applicant Guarantor.
4. This Joinder Agreement may be executed in two or more
counterparts, each of which shall constitute an original but all
of which when taken together shall constitute one contract.
5. This Joinder Agreement shall be governed by and
construed and interpreted in accordance with the laws of the
State of New York.
IN WITNESS WHEREOF, the Applicant Guarantor has caused this
Joinder Agreement to be duly executed by its Responsible
Officers, and each holder has caused the same to be accepted by
its officers, as of the day and year first above written.
[APPLICANT GUARANTOR]
By:
Name:
Title
Address for Notices:
Attn: ________________________
Telephone:
Telecopy:
Acknowledged and accepted:
THE PRUDENTIAL INSURANCE
COMPANY OF AMERICA
By:______________________________
Vice President
PRUCO LIFE INSURANCE COMPANY
By:______________________________
Vice President
