EXHIBIT 10.10
HOLDCO GUARANTY
HOLDCO GUARANTY, dated as of February 4, 2004 (as amended,
modified or supplemented from time to time, this "Guaranty"), made by TOWN
SPORTS INTERNATIONAL HOLDINGS, INC., a Delaware corporation (the "Guarantor").
Except as otherwise defined herein, capitalized terms used herein and defined in
the Credit Agreement (as defined below) shall be used herein as therein defined.
W I T N E S S E T H :
WHEREAS, Town Sports International, Inc. (the "Borrower"), the
lenders from time to time party thereto (the "Lenders") and Deutsche Bank Trust
Company Americas, as administrative agent (together with any successor
administrative agent, the "Administrative Agent"), have entered into a Credit
Agreement, dated as of April 16, 2003 (as amended, modified or supplemented from
time to time, the "Credit Agreement"), providing for the making of Loans to, and
the issuance of, and participation in, Letters of Credit for the account of, the
Borrower as contemplated therein (the Lenders, the Collateral Agent, the Issuing
Lenders and the Administrative Agent are herein called the "Lender Creditors");
WHEREAS, the Borrower and/or one or more of its Subsidiaries
may at any time and from time to time enter into one or more Interest Rate
Protection Agreements or Other Hedging Agreements with one or more Lenders or
any affiliate thereof (each such Lender or affiliate, even if the respective
Lender subsequently ceases to be a Lender under the Credit Agreement for any
reason, together with such Lender's or affiliate's successors and assigns, if
any, collectively, the "Other Creditors" and, together with the Lender
Creditors, the "Secured Creditors");
WHEREAS, the Guarantor owns 100% of the outstanding capital
stock of the Borrower;
WHEREAS, it is a condition precedent to the First Amendment
Effective Date that the Guarantor shall have executed and delivered to the
Administrative Agent this Guaranty; and
WHEREAS, the Guarantor will obtain benefits from the
incurrence of Loans to, and the issuance of Letters of Credit for the account
of, the Borrower under the Credit Agreement and the entering into by the
Borrower and/or one or more of its Subsidiaries of Interest Rate Protection
Agreements or Other Hedging Agreements and, accordingly, desires to execute this
Guaranty in order to satisfy the condition described in the preceding paragraph;
NOW, THEREFORE, in consideration of the foregoing and other
benefits accruing to the Guarantor, the receipt and sufficiency of which are
hereby acknowledged, the
Guarantor hereby makes the following representations and warranties to the
Secured Creditors and hereby covenants and agrees with each Secured Creditor as
follows:
1. The Guarantor irrevocably, absolutely and
unconditionally guarantees: (i) to the Lender Creditors the full and prompt
payment when due (whether at the stated maturity, by acceleration or otherwise)
of (x) the principal of, premium, if any, and interest on the Notes issued by,
and the Loans made to, the Borrower under the Credit Agreement, and all
reimbursement obligations and Unpaid Drawings with respect to Letters of Credit
and (y) all other obligations (including obligations which, but for the
automatic stay under Section 362(a) of the Bankruptcy Code, would become due),
liabilities and indebtedness owing by the Borrower to the Lender Creditors under
the Credit Agreement and each other Credit Document to which the Borrower is a
party (including, without limitation, indemnities, Fees and interest thereon
(including, in each case, any interest accruing after the commencement of any
bankruptcy, insolvency, receivership or similar proceeding at the rate provided
for in the Credit Agreement, whether or not such interest is an allowed claim in
any such proceeding), whether now existing or hereafter incurred under, arising
out of or in connection with the Credit Agreement and any such other Credit
Document and the due performance and compliance by the Borrower with all of the
terms, conditions and agreements contained in all such Credit Documents (all
such principal, premium, interest, liabilities, indebtedness and obligations
being herein collectively called the "Credit Document Obligations"); and (ii) to
each Other Creditor the full and prompt payment when due (whether at the stated
maturity, by acceleration or otherwise) of all obligations (including
obligations which, but for the automatic stay under Section 362(a) of the
Bankruptcy Code, would become due), liabilities and indebtedness (including, in
each case, any interest accruing after the commencement of any bankruptcy,
insolvency, receivership or similar proceeding at the rate provided for in the
respective Interest Rate Protection Agreements or Other Hedging Agreements,
whether or not such interest is an allowed claim in any such proceeding) owing
by the Borrower and/or one or more of its Subsidiaries under any Interest Rate
Protection Agreement or Other Hedging Agreement, whether now in existence or
hereafter arising, and the due performance and compliance by the Borrower and
such Subsidiaries with all of the terms, conditions and agreements contained in
each Interest Rate Protection Agreement and Other Hedging Agreement to which it
is a party (all such obligations, liabilities and indebtedness being herein
collectively called the "Other Obligations" and, together with the Credit
Document Obligations, the "Guaranteed Obligations"). As used herein, the term
"Guaranteed Party" shall mean the Borrower and each Subsidiary thereof party to
any Interest Rate Protection Agreement or Other Hedging Agreement with an Other
Creditor. The Guarantor understands, agrees and confirms that the Secured
Creditors may enforce this Guaranty up to the full amount of the Guaranteed
Obligations against the Guarantor without proceeding against the Borrower, any
other Guaranteed Party, any Subsidiary Guarantor, against any security for the
Guaranteed Obligations, or under any other guaranty covering all or a portion of
the Guaranteed Obligations.
2. Additionally, the Guarantor unconditionally,
absolutely and irrevocably guarantees the payment of any and all Guaranteed
Obligations whether or not due or payable by the Borrower or any other
Guaranteed Party upon the occurrence in respect of the Borrower or any such
other Guaranteed Party of any of the events specified in Section 10.05 of the
Credit Agreement, and unconditionally and irrevocably promises to pay such
Guaranteed Obligations to
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the Secured Creditors, or order, on demand. This Guaranty shall constitute a
guaranty of payment, and not of collection.
3. The liability of the Guarantor hereunder is primary,
absolute and unconditional and is exclusive and independent of any security for
or other guaranty of the indebtedness of the Borrower or any other Guaranteed
Party whether executed by the Guarantor, any Subsidiary Guarantor, any other
guarantor or by any other party, and the liability of the Guarantor hereunder
shall not be affected or impaired by any circumstance or occurrence whatsoever,
including, without limitation: (a) any direction as to application of payment by
the Borrower or any other Guaranteed Party or by any other party, (b) any other
continuing or other guaranty, undertaking or maximum liability of a guarantor or
of any other party as to the Guaranteed Obligations, (c) any payment on or in
reduction of any such other guaranty or undertaking, (d) any dissolution,
termination or increase, decrease or change in personnel by the Borrower or any
other Guaranteed Party, (e) any payment made to any Secured Creditor on the
indebtedness which any Secured Creditor repays the Borrower or any other
Guaranteed Party pursuant to court order in any bankruptcy, reorganization,
arrangement, moratorium or other debtor relief proceeding, and the Guarantor
waives any right to the deferral or modification of its obligations hereunder by
reason of any such proceeding, (f) any action or inaction by the Secured
Creditors as contemplated in Section 6 hereof or (g) any invalidity,
irregularity or unenforceability of all or any part of the Guaranteed
Obligations or of any security therefor.
4. The obligations of the Guarantor hereunder are
independent of the obligations of any Subsidiary Guarantor, any other guarantor,
the Borrower or any other Guaranteed Party, and a separate action or actions may
be brought and prosecuted against the Guarantor whether or not action is brought
against any Subsidiary Guarantor, any other guarantor, the Borrower or any other
Guaranteed Party and whether or not any Subsidiary Guarantor, any other
guarantor, the Borrower or any other Guaranteed Party be joined in any such
action or actions. The Guarantor waives, to the fullest extent permitted by law,
the benefits of any statute of limitations affecting its liability hereunder or
the enforcement thereof. Any payment by the Borrower or any other Guaranteed
Party or other circumstance which operates to toll any statute of limitations as
to the Borrower or any other Guaranteed Party shall operate to toll the statute
of limitations as to the Guarantor.
5. The Guarantor hereby waives notice of acceptance of
this Guaranty and notice of any liability to which it may apply, and waives
promptness, diligence, presentment, demand of payment, protest, notice of
dishonor or nonpayment of any such liabilities, suit or taking of other action
by the Administrative Agent or any other Secured Creditor against, and any other
notice to, any party liable thereon (including the Guarantor, any Subsidiary
Guarantor, any other guarantor, the Borrower or any other Guaranteed Party).
6. Any Secured Creditor may at any time and from time to
time without the consent of, or notice to, the Guarantor, without incurring
responsibility to the Guarantor, without impairing or releasing the obligations
of the Guarantor hereunder, upon or without any terms or conditions and in whole
or in part:
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(a) change the manner, place or terms of payment of,
and/or change, increase or extend the time of payment of, renew or alter, any of
the Guaranteed Obligations (including any increase or decrease in the rate of
interest thereon or the principal amount thereof), any security therefor, or any
liability incurred directly or indirectly in respect thereof, and the guaranty
herein made shall apply to the Guaranteed Obligations as so changed, extended,
renewed or altered;
(b) take and hold security for the payment of the
Guaranteed Obligations and sell, exchange, release, surrender, impair, realize
upon or otherwise deal with in any manner and in any order any property by
whomsoever at any time pledged or mortgaged to secure, or howsoever securing,
the Guaranteed Obligations or any liabilities (including any of those hereunder)
incurred directly or indirectly in respect thereof or hereof, and/or any offset
there against;
(c) exercise or refrain from exercising any rights
against the Borrower, any other Guaranteed Party, any other Credit Party, any
Subsidiary thereof or otherwise act or refrain from acting;
(d) release or substitute any one or more endorsers,
Subsidiary Guarantors, other guarantors, the Borrower, any other Guaranteed
Party, or other obligors;
(e) settle or compromise any of the Guaranteed
Obligations, any security therefor or any liability (including any of those
hereunder) incurred directly or indirectly in respect thereof or hereof, and may
subordinate the payment of all or any part thereof to the payment of any
liability (whether due or not) of the Borrower or any other Guaranteed Party to
creditors of the Borrower or such other Guaranteed Party other than the Secured
Creditors;
(f) apply any sums by whomsoever paid or howsoever
realized to any liability or liabilities of the Borrower or any other Guaranteed
Party to the Secured Creditors regardless of what liabilities of the Borrower or
such other Guaranteed Party remain unpaid;
(g) consent to or waive any breach of, or any act,
omission or default under, any of the Interest Rate Protection Agreements or
Other Hedging Agreements, the Credit Documents or any of the instruments or
agreements referred to therein, or otherwise amend, modify or supplement any of
the Interest Rate Protection Agreements or Other Hedging Agreements, the Credit
Documents or any of such other instruments or agreements;
(h) act or fail to act in any manner referred to in this
Guaranty which may deprive the Guarantor of its right to subrogation against the
Borrower or any other Guaranteed Party to recover full indemnity for any
payments made pursuant to this Guaranty; and/or
(i) take any other action which would, under otherwise
applicable principles of common law, give rise to a legal or equitable discharge
of such Guarantor from its liabilities under this Guaranty.
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7. This Guaranty is a continuing one and all liabilities
to which it applies or may apply under the terms hereof shall be conclusively
presumed to have been created in reliance hereon. No failure or delay on the
part of any Secured Creditor in exercising any right, power or privilege
hereunder shall operate as a waiver thereof, nor shall any single or partial
exercise of any right, power or privilege hereunder preclude any other or
further exercise thereof or the exercise of any other right, power or privilege.
The rights and remedies herein expressly specified are cumulative and not
exclusive of any rights or remedies which any Secured Creditor would otherwise
have. No notice to or demand on the Guarantor in any case shall entitle the
Guarantor to any other further notice or demand in similar or other
circumstances or constitute a waiver of the rights of any Secured Creditor to
any other or further action in any circumstances without notice or demand. It is
not necessary for any Secured Creditor to inquire into the capacity or powers of
the Borrower or any other Guaranteed Party or the officers, directors, partners
or agents acting or purporting to act on its or their behalf, and any
indebtedness made or created in reliance upon the professed exercise of such
powers shall be guaranteed hereunder.
8. Any indebtedness of the Borrower or any other
Guaranteed Party now or hereafter held by the Guarantor is hereby subordinated
to the indebtedness of the Borrower or such other Guaranteed Party to the
Secured Creditors, and such indebtedness of the Borrower or such other
Guaranteed Party to the Guarantor, if the Administrative Agent or the Collateral
Agent, after the occurrence and during the continuance of an Event of Default,
so requests, shall be collected, enforced and received by the Guarantor as
trustee for the Secured Creditors and be paid over to the Secured Creditors on
account of the indebtedness of the Borrower or the other Guaranteed Parties to
the Secured Creditors, but without affecting or impairing in any manner the
liability of the Guarantor under the other provisions of this Guaranty. Without
limiting the generality of the foregoing, the Guarantor hereby agrees with the
Secured Creditors that it will not exercise any right of subrogation which it
may at any time otherwise have as a result of this Guaranty (whether
contractual, under Section 509 of the Bankruptcy Code or otherwise) until all
Guaranteed Obligations have been irrevocably paid in full in cash (other than
contingent indemnification obligations that are not then due and payable).
9. (a) The Guarantor waives any right (except as shall
be required by applicable law and cannot be waived) to require the Secured
Creditors to: (i) proceed against the Borrower, any other Guaranteed Party, any
Subsidiary Guarantor, any other guarantor of the Guaranteed Obligations or any
other party; (ii) proceed against or exhaust any security held from the
Borrower, any other Guaranteed Party, any Subsidiary Guarantor, any other
guarantor of the Guaranteed Obligations or any other party; or (iii) pursue any
other remedy in the Secured Creditors' power whatsoever. The Guarantor waives
any defense based on or arising out of any defense of the Borrower, any
Guaranteed Party, any Subsidiary Guarantor, any other guarantor of the
Guaranteed Obligations or any other party other than payment in full in cash of
the Guaranteed Obligations in accordance with the terms thereof, including,
without limitation, any defense based on or arising out of the disability of the
Borrower, any other Guaranteed Party, any Subsidiary Guarantor, any other
guarantor of the Guaranteed Obligations or any other party, or the
unenforceability of the Guaranteed Obligations or any part thereof from any
cause, or the cessation from any cause of the liability of the Borrower or any
other Guaranteed Party other than payment in full of the Guaranteed Obligations
in cash. The Secured Creditors may, at their
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election, foreclose on any security held by the Administrative Agent, the
Collateral Agent or the other Secured Creditors by one or more judicial or
nonjudicial sales, whether or not every aspect of any such sale is commercially
reasonable, or exercise any other right or remedy the Secured Creditors may have
against the Borrower, any other Guaranteed Party or any other party, or any
security, without affecting or impairing in any way the liability of the
Guarantor hereunder except to the extent the Guaranteed Obligations have been
paid in full in cash in accordance with the terms thereof. The Guarantor waives
any defense arising out of any such election by the Secured Creditors, even
though such election operates to impair or extinguish any right of reimbursement
or subrogation or other right or remedy of the Guarantor against the Borrower,
any other Guaranteed Party or any other party or any security.
(b) The Guarantor waives all presentments, demands for
performance, protests and notices, including, without limitation, notices of
nonperformance, notices of protest, notices of dishonor, notices of acceptance
of this Guaranty, and notices of the existence, creation or incurring of new or
additional indebtedness. The Guarantor assumes all responsibility for being and
keeping itself informed of the Borrower's and each other Guaranteed Party's
financial condition and assets, and of all other circumstances bearing upon the
risk of nonpayment of the Guaranteed Obligations and the nature, scope and
extent of the risks which the Guarantor assumes and incurs hereunder, and agrees
that the Secured Creditors shall have no duty to advise the Guarantor of
information known to them regarding such circumstances or risks.
10. The Secured Creditors agree that this Guaranty may be
enforced only by the action of the Administrative Agent or the Collateral Agent,
in each case acting upon the instructions of the Required Lenders (or, after the
date on which all Credit Document Obligations have been paid in full, the
holders of at least a majority of the outstanding Other Obligations) and that no
other Secured Creditors shall have any right individually to seek to enforce or
to enforce this Guaranty or to realize upon the security to be granted by the
Security Documents, it being understood and agreed that such rights and remedies
may be exercised by the Administrative Agent or the Collateral Agent or, after
all the Credit Document Obligations have been paid in full (other than
contingent indemnification obligations that are not then due and payable), by
the holders of at least a majority of the outstanding Other Obligations, as the
case may be, for the benefit of the Secured Creditors upon the terms of this
Guaranty and the Security Documents. The Secured Creditors further agree that
this Guaranty may not be enforced against any director, officer, employee,
partner, member or stockholder of the Guarantor.
11. In order to induce the Lenders to make Loans to, and
issue Letters of Credit for the account of, the Borrower pursuant to the Credit
Agreement, and in order to induce the Other Creditors to execute, deliver and
perform the Interest Rate Protection Agreements and Other Hedging Agreements,
the Guarantor represents, warrants and covenants that:
(a) the Guarantor (i) is a duly organized and validly
existing corporation in good standing under the laws of the jurisdiction of its
organization, (ii) has the corporate power and authority to own its property and
assets and to transact the business in which it is engaged and presently
proposes to engage and (iii) is duly qualified and is authorized to do business
and is in good standing in each jurisdiction where the conduct of its business
requires such qualification
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except for failures to be so qualified which, either individually or in the
aggregate, could not reasonably be expected to have a Material Adverse Effect
(as defined below);
(b) the Guarantor has the corporate power and authority
to execute, deliver and perform the terms and provisions of this Guaranty and
each other Credit Document to which it is a party and has taken all necessary
corporate action to authorize the execution, delivery and performance by it of
this Guaranty and each such other Credit Document. The Guarantor has duly
executed and delivered this Guaranty and each other Credit Document to which it
is a party, and this Guaranty and each such other Credit Document constitutes
the legal, valid and binding obligation of the Guarantor enforceable in
accordance with its terms, except to the extent that the enforceability hereof
or thereof may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium or other similar laws generally affecting creditors' rights and by
equitable principles (regardless of whether enforcement is sought in equity or
at law);
(c) neither the execution, delivery or performance by the
Guarantor of this Guaranty or any other Credit Document to which it is a party,
nor compliance by it with the terms and provisions hereof and thereof, will (i)
contravene any provision of any applicable law, statute, rule or regulation or
any applicable order, writ, injunction or decree of any court or governmental
instrumentality, (ii) conflict with or result in any breach of any of the terms,
covenants, conditions or provisions of, or constitute a default under, or result
in the creation or imposition of (or the obligation to create or impose) any
Lien (except pursuant to the Security Documents) upon any of the property or
assets of the Guarantor or any of its Subsidiaries pursuant to the terms of any
indenture, mortgage, deed of trust, loan agreement, credit agreement, or any
other material agreement, contract or instrument to which the Guarantor or any
of its Subsidiaries is a party or by which it or any of its property or assets
is bound or to which it may be subject or (iii) violate any provision of the
certificate or articles of incorporation or by-laws of the Guarantor;
(d) no order, consent, approval, license, authorization
or validation of, or filing, recording or registration with (except as have been
obtained or made), or exemption by, any governmental or public body or
authority, or any subdivision thereof, is required to authorize, or is required
for, (i) the execution, delivery and performance of this Guaranty by the
Guarantor or any other Credit Document to which the Guarantor is a party or (ii)
the legality, validity, binding effect or enforceability of this Guaranty or any
other Credit Document to which the Guarantor is a party;
(e) there are no actions, suits or proceedings pending
or, to the Guarantor's knowledge, threatened (i) with respect to this Guaranty
or any other Credit Document to which the Guarantor is a party or (ii) with
respect to the Guarantor or any of its Subsidiaries that, either individually or
in the aggregate, could reasonably be expected to have a Material Adverse
Effect; and
(f) no event has occurred and is continuing that is a
Holdco Default (as hereafter defined) or Holdco Event of Default (as hereafter
defined).
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As used in this Guaranty, the term "Material Adverse Effect" shall mean (i) a
material adverse effect on the business, operations, property, assets,
liabilities, condition (financial or otherwise) or prospects of the Borrower and
its Subsidiaries taken as a whole or the Guarantor and its Subsidiaries taken as
a whole or (ii) a material adverse effect (x) on the rights or remedies of the
Lenders or the Administrative Agent hereunder or under any other Credit Document
or (y) on the ability of the Credit Parties taken as a whole or the Guarantor to
perform their obligations to the Lenders or Administrative Agent hereunder or
under any other Credit Document.
12. The Guarantor covenants and agrees that on and after
the date hereof and until the termination of the Total Revolving Loan Commitment
and all Interest Rate Protection Agreements and Other Hedging Agreements and
until such time as no Note or Letter of Credit remains outstanding and all
Guaranteed Obligations have been paid in full (other than contingent
indemnification obligations that are not then due and payable):
(a) Information Covenants. The Guarantor will furnish to
each Lender:
(i) Management Letters. Promptly after the Guarantor's
receipt thereof, a copy of any "management letter" received from its
certified public accountants and management's response thereto.
(ii) Officer's Certificates. At the time of the delivery
of the financial statements provided for in Sections 8.01(b) and (c) of
the Credit Agreement, a compliance certificate from an Authorized
Financial Officer of the Guarantor certifying on behalf of the
Guarantor that, to such officer's knowledge after due inquiry, no
Holdco Default or Holdco Event of Default has occurred and is
continuing or, if any Holdco Default or Holdco Event of Default has
occurred and is continuing, specifying the nature and extent thereof,
which certificate shall certify that there have been no changes to
Annexes C through F, and Annexes I through K, in each case of the
Holdco Security Agreement and Annexes A through F of the Holdco Pledge
Agreement, in each case since the date hereof or, if later, since the
date of the most recent certificate delivered pursuant to this Section
12(a)(ii), or if there have been any such changes, a list in reasonable
detail of such changes (but, in each case, only to the extent that such
changes are required to be reported to the Collateral Agent pursuant to
the terms of such Security Documents).
(iii) Notice of Default, Litigation and Material Adverse
Effect. Promptly, and in any event within three Business Days after any
officer of the Guarantor obtains knowledge thereof, notice of (x) the
occurrence of any event which constitutes a Default or an Event of
Default, (y) any litigation or governmental investigation (including,
without limitation, by the New York Insurance Department) or proceeding
pending against the Guarantor or any of its Subsidiaries (1) which,
either individually or in the aggregate, could reasonably be expected
to have a Material Adverse Effect or (2) with respect to any Credit
Document, or (z) any other event, change or circumstance that has had,
or could reasonably be expected to have, a Material Adverse Effect.
(iv) Other Reports and Filings. Promptly after the filing
or delivery thereof, copies of all financial information, proxy
materials and reports, if any, which the
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Guarantor shall publicly file with the SEC or deliver to holders (or
any trustee, agent or other representative therefor) of its material
Indebtedness (including the Holdco Notes and the Senior Notes) pursuant
to the terms of the documentation governing such Indebtedness.
(v) Other Information. From time to time, such other
information or documents (financial or otherwise) with respect to the
Guarantor or any of its Subsidiaries as the Administrative Agent or any
Lender may reasonably request.
(b) Books, Records and Inspections. The Guarantor will
keep proper books of record and accounts in which full, true and correct entries
in conformity with (and to the extent required by) generally accepted accounting
principles and all applicable requirements of law shall be made in relation to
its business and activities. The Guarantor will permit, upon reasonable notice
to the Guarantor, officers and designated representatives of the Administrative
Agent or the Required Lenders to visit and inspect, under guidance of officers
of the Guarantor, any of the properties of the Guarantor, and to examine the
books of account of the Guarantor and discuss the affairs, finances and accounts
of the Guarantor with, and be advised as to the same by, its officers and
independent accountants, all upon reasonable prior notice and at such reasonable
times and intervals and to such reasonable extent as the Administrative Agent or
the Required Lenders may reasonably request.
(c) Maintenance of Property; Insurance. (i) The Guarantor
will (x) maintain (or cause to be maintained by the Borrower) with financially
sound and reputable third party insurance companies insurance on all of its
material tangible property (to the extent that the Guarantor owns any such
material tangible property) and against all such risks as is consistent and in
accordance with industry practice for companies similarly situated owning
similar properties and engaged in similar businesses as the Guarantor, and (y)
furnish to the Administrative Agent, upon its written request therefor, full
information as to the insurance carried.
(ii) The Guarantor will at all times keep its property
insured in favor of the Collateral Agent as loss payee (to the extent
that the Guarantor is otherwise required to maintain such property
insurance under this Section 12(c)), and all policies or certificates
(or certified copies thereof) with respect to such insurance (and any
other insurance maintained by the Guarantor) (w) shall be endorsed to
the Collateral Agent's satisfaction for the benefit of the Collateral
Agent (including, without limitation, by naming the Collateral Agent as
loss payee and/or additional insured, as applicable), (x) shall state
that such insurance policies shall not be canceled without at least 30
days' prior written notice thereof by the respective insurer to the
Collateral Agent, (y) shall provide that the respective insurers
irrevocably waive any and all rights of subrogation with respect to the
Collateral Agent and the other Secured Creditors, and (z) shall be
deposited with the Collateral Agent.
(iii) If the Guarantor shall fail to maintain insurance in
accordance with this Section 12(c) or if the Guarantor shall fail to so
endorse and deposit all policies or certificates with respect thereto,
the Administrative Agent shall have the right (but shall
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be under no obligation) to procure such insurance and the Guarantor
agrees to reimburse the Administrative Agent for all reasonable costs
and expenses of procuring such insurance.
(d) Existence; Franchises. The Guarantor will do or cause
to be done, all things necessary to preserve and keep in full force and effect
its existence and its material rights, franchises, licenses, permits,
copyrights, trademarks and patents; provided, however, that nothing in this
Section 12(d) shall prevent the withdrawal by the Guarantor of its qualification
as a foreign corporation in any jurisdiction if such withdrawal could not,
either individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect.
(e) Compliance with Statutes, etc. The Guarantor will
comply with all applicable statutes, regulations and orders of, and all
applicable restrictions imposed by, all governmental bodies, domestic or
foreign, in respect of the conduct of its business and the ownership of its
property, except such noncompliances as could not, either individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect.
(f) Performance of Obligations. The Guarantor will
perform all of its obligations under the terms of each mortgage, indenture,
security agreement, loan agreement or credit agreement and each other agreement,
contract or instrument by which it is bound, except such non-performances as
could not, either individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect.
(g) Payment of Taxes. The Guarantor will pay and
discharge all taxes, assessments and governmental charges or levies imposed upon
it or upon its income or profits or upon any properties belonging to it, in each
case on a timely basis, and all lawful claims which, if unpaid, might become a
Lien or charge upon any properties of the Borrower or any of its Subsidiaries
(other than a Lien of the type that otherwise would be permitted under Section
9.01(i) of the Credit Agreement); provided that the Guarantor shall not be
required to pay any such tax, assessment, charge, levy or claim which is being
contested in good faith and by proper proceedings if it has maintained adequate
reserves with respect thereto in accordance with generally accepted accounting
principles.
(h) Ownership of the Borrower. The Guarantor will at all
times own 100% of the outstanding capital stock and other equity interests of
the Borrower free and clear of all Liens (other than Liens created under the
Holdco Pledge Agreement), and will not sell or otherwise dispose of any such
capital stock or other equity interests.
(i) Maintenance of Corporate Separateness. The Guarantor
will, and will cause each of its Subsidiaries to, satisfy in all material
respects customary corporate formalities, including the holding of regular board
of directors' and shareholders' meetings or action by directors or shareholders
without a meeting and the maintenance of corporate offices and records. Neither
the Guarantor nor any of its Subsidiaries shall take any action, or conduct its
affairs in a manner, which is likely to result in the corporate existence of the
Guarantor or any of its Subsidiaries being ignored, or in the assets and
liabilities of the Guarantor or any of its
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Subsidiaries being substantively consolidated with those of the Guarantor in a
bankruptcy, reorganization or other insolvency proceeding.
(j) Limitation on Issuance of Capital Stock. The
Guarantor will not issue (i) any preferred stock or other preferred equity
interests other than Qualified Preferred Stock of the Guarantor or (ii) any
redeemable common stock or other redeemable common equity interests other than
common stock or other redeemable common equity interests that is redeemable at
the sole option of the Guarantor.
(k) Business, etc. The Guarantor will not engage in any
business, enter into any transaction of merger or consolidation, create or
acquire after the date hereof any direct Subsidiaries or own any significant
assets or have any material liabilities other than (i) its ownership of (x) the
capital stock of the Borrower and (y) obligations of one or more officers,
directors or employees of the Guarantor or any of its Subsidiaries in connection
with such officers', directors' or employees' acquisition of shares of capital
stock of the Guarantor so long as no cash is paid by the Guarantor or any of its
Subsidiaries to such officers, directors or employees in connection with the
acquisition of any such obligations (together with any investment income
thereon) and (ii) those liabilities which it is responsible for under this
Guaranty, the other Holdco Credit Documents to which it is a party, the Holdco
Note Documents in an aggregate principal amount at maturity not to exceed
$213,000,000 (resulting in $124,807,350 of gross cash proceeds at the time of
issuance of the Holdco Notes (in each case as reduced by any repayments of
principal thereof made after the date hereof)) and any guaranty of the
Borrower's obligations under the Senior Notes in an aggregate principal amount
not to exceed $255,000,000, provided that the Guarantor may engage in those
activities that are incidental to (x) the maintenance of its existence in
compliance with applicable law and (y) legal, tax and accounting matters in
connection with any of the foregoing activities.
(l) Limitations on Payments of Holdco Notes;
Modifications of Holdco Note Documents, Certificate of Incorporation, By-Laws
and Certain Other Agreements, etc. The Guarantor will not:
(i) make (or give any notice in respect of), or permit
any of its Subsidiaries to make (or give any notice in respect of), any
voluntary or optional payment or prepayment on or redemption,
repurchase or acquisition for value of, or any prepayment or redemption
as a result of any asset sale, change of control or similar event of
(including, in each case without limitation, by way of depositing with
the trustee with respect thereto money or securities before due for the
purpose of paying when due), any Holdco Notes;
(ii) amend or modify, or permit the amendment or
modification of any provision of, any Holdco Note Document other than
any amendments or modifications which could not reasonably be expected
to be adverse to the interests of the Lenders in any material respect
and which do not require the payment of any fees to the holders of the
Holdco Notes in connection therewith, provided that the prior written
consent of the Administrative Agent is obtained in connection with any
such amendment or modification;
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(iii) amend, modify or change its certificate or articles
of incorporation (including, without limitation, by the filing or
modification of any certificate or articles of designation) or by-laws,
or any agreement entered into by it with respect to its capital stock
or other equity interests (including the Stockholders' Agreement), or
enter into any new agreement with respect to its capital stock or other
equity interests, unless such amendment, modification, change or other
action contemplated by this clause (iii) could not reasonably be
expected to be adverse to the interests of the Lenders in any material
respect; or
(iv) amend or modify (or permit the amendment or
modification of) any provision of the Holdco Tax Sharing Agreement or
enter into any additional tax sharing agreement, tax allocation
agreement or similar agreement.
(m) End of Fiscal Year; Fiscal Quarters. The Guarantor
will cause (i) its fiscal year to end on December 31 of each year and (ii) each
of its fiscal quarters to end on March 31, June 30, September 30 and December 31
of each fiscal year.
(n) Contributions. The Guarantor will contribute as a
common equity contribution to the capital of the Borrower upon the Guarantor's
receipt thereof, any cash proceeds received by the Guarantor from any asset
sale, any incurrence of Indebtedness (other than from the issuance of the Holdco
Notes on the First Amendment Effective Date), any Recovery Event, any issuance
or sale of its equity, any cash capital contributions or any tax refunds (other
than any tax refunds that are repaid to the Borrower pursuant to the Holdco Tax
Sharing Agreement).
13. The existence or the occurrence of one or more of the
following events whatever the reason therefor and under any circumstances
whatsoever shall constitute a "Holdco Event of Default" under this Guaranty and
the Credit Agreement:
(a) Representations, etc. Any representation, warranty or
statement made or deemed made by the Guarantor herein or in any other Holdco
Credit Document or in any certificate delivered to the Administrative Agent or
any Lender pursuant hereto or thereto shall prove to be untrue in any material
respect on the date as of which made or deemed made; or
(b) Covenants. The Guarantor shall (i) default in the due
performance or observance by it of any term, covenant or agreement contained in
Section 12(a)(v)(x) hereof, Section 12(h) hereof, Section 12(j) hereof, Section
12(k) hereof, Section 12(l) hereof, Section 12(m) hereof or Section 12(n) hereof
or (ii) default in the due performance or observance by it of any other term,
covenant or agreement contained in this Guaranty (other than those set forth in
Section 13(a) hereof) and such default shall continue unremedied for a period of
30 days after written notice thereof to the Guarantor by the Administrative
Agent or the Required Lenders; or
(c) Default Under Other Agreements. (i) The Guarantor
shall (x) default in any payment of any Indebtedness (other than the Guaranteed
Obligations) beyond the period of grace, if any, provided in an instrument or
agreement under which such Indebtedness was created or (y) default in the
observance or performance of any agreement or condition relating to any
Indebtedness (other than the Guaranteed Obligations) or contained in any
instrument or agree-
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ment evidencing, securing or relating thereto, or any other event shall occur or
condition exist, the effect of which default or other event or condition is to
cause, or to permit the holder or holders of such Indebtedness (or a trustee or
agent on behalf of such holder or holders) to cause (determined without regard
to whether any notice is required), any such Indebtedness to become due prior to
its stated maturity, or (ii) any Indebtedness (other than the Guaranteed
Obligations) of the Guarantor shall be declared to be (or shall become) due and
payable, or required to be prepaid other than by a regularly scheduled required
prepayment, prior to the stated maturity thereof, provided that it shall not be
a Holdco Default or a Holdco Event of Default under this Section 13(c) unless
(A) the principal amount of any one issue of such Indebtedness is at least
$2,500,000 or (B) the aggregate principal amount of all Indebtedness as
described in preceding clauses (i) and (ii) is at least $5,000,000; or
(d) Bankruptcy, etc. The Guarantor shall commence a
voluntary case concerning itself under the Bankruptcy Code; or an involuntary
case is commenced against the Guarantor and the petition is not controverted
within 10 days, or is not dismissed within 60 days, after commencement of the
case; or a custodian (as defined in the Bankruptcy Code) is appointed for, or
takes charge of, all or substantially all of the property of the Guarantor, or
the Guarantor commences any other proceeding under any reorganization,
arrangement, adjustment of debt, relief of debtors, dissolution, insolvency or
liquidation or similar law of any jurisdiction whether now or hereafter in
effect relating to the Guarantor, or there is commenced against the Guarantor
any such proceeding which remains undismissed for a period of 60 days, or the
Guarantor is adjudicated insolvent or bankrupt; or any order of relief or other
order approving any such case or proceeding is entered; or the Guarantor suffers
any appointment of any custodian or the like for it or any substantial part of
its property to continue undischarged or unstayed for a period of 60 days; or
the Guarantor makes a general assignment for the benefit of creditors; or any
corporate action is taken by the Guarantor for the purpose of effecting any of
the foregoing; or
(e) Judgments. One or more judgments or decrees shall be
entered against the Guarantor involving in the aggregate for the Guarantor a
liability (to the extent not paid or fully covered by a reputable and solvent
third party insurance company) and such judgments and decrees either shall be
final and non-appealable or shall not be vacated, discharged or stayed or bonded
pending appeal for any period of 60 consecutive days, and (I) any one such
judgment or decree equals or exceeds $2,500,000 or (II) the aggregate amount of
all such judgments or decrees equals or exceeds $5,000,000.
As used in this Guaranty, the term "Holdco Default" shall mean any event, act or
condition which with notice or lapse of time, or both, would constitute a Holdco
Event of Default.
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14. The Guarantor hereby agrees to pay all reasonable
out-of-pocket costs and expenses of each Secured Creditor in connection with the
enforcement of this Guaranty and of the Administrative Agent in connection with
any amendment, waiver or consent relating hereto (including, in each case,
without limitation, the reasonable fees and disbursements of counsel employed by
each Secured Creditor).
15. This Guaranty shall be binding upon the Guarantor and
its successors and assigns and shall inure to the benefit of the Secured
Creditors and their successors and assigns; provided, however, the Guarantor may
not assign or transfer any of its rights or obligations under this Guaranty
without the prior written consent of the Required Lenders or, after the date on
which all Credit Document Obligations have been paid in full, the holders of at
least a majority of the outstanding Other Obligations (if any).
16. Neither this Guaranty nor any provision hereof may be
changed, waived, discharged or terminated except with the written consent of the
Guarantor and with the written consent of either (x) the Required Lenders (or,
to the extent required by Section 13.12 of the Credit Agreement, with the
written consent of each Lender) at all times prior to the time on which all
Credit Document Obligations have been paid in full (other than contingent
indemnification obligations that are not then due and payable) or (y) the
holders of at least a majority of the outstanding Other Obligations at all times
after the time on which all Credit Document Obligations have been paid in full
(other than contingent indemnification obligations that are not then due and
payable); provided, that any change, waiver, modification or variance affecting
the rights and benefits of a single Class (as defined below) of Secured
Creditors (and not all Secured Creditors in a like or similar manner) shall also
require the written consent of the Requisite Creditors (as defined below) of
such Class of Secured Creditors. For the purpose of this Guaranty, the term
"Class" shall mean each class of Secured Creditors, i.e., whether (x) the Lender
Creditors as holders of the Credit Document Obligations or (y) the Other
Creditors as the holders of the Other Obligations. For the purpose of this
Guaranty, the term "Requisite Creditors" of any Class shall mean (x) with
respect to the Credit Document Obligations, the Required Lenders (or, to the
extent required by Section 13.12 of the Credit Agreement, each Lender) and (y)
with respect to the Other Obligations, the holders of at least a majority of all
obligations outstanding from time to time under the Interest Rate Protection
Agreements and Other Hedging Agreements.
17. The Guarantor acknowledges that an executed (or
conformed) copy of each of the Credit Documents and Interest Rate Protection
Agreements or Other Hedging Agreements has been made available to a senior
officer of the Guarantor and such officer is familiar with the contents thereof.
18. In addition to any rights now or hereafter granted
under applicable law (including, without limitation, Section 151 of the New York
Debtor and Secured Creditor Law) and not by way of limitation of any such
rights, upon the occurrence and during the continuance of an Event of Default
(such term to mean and include any "Event of Default" (or similar term) as
defined in the Credit Agreement or in any Interest Rate Protection Agreement or
Other Hedging Agreement entered into with any Other Creditor and shall in any
event include, without
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limitation, any payment default under any of the Obligations continuing after
any applicable grace period), each Secured Creditor is hereby authorized, at any
time or from time to time, without notice to the Guarantor or to any other
Person, any such notice being expressly waived, to set off and to appropriate
and apply any and all deposits (general or special) and any other indebtedness
at any time held or owing by such Secured Creditor (including, without
limitation, by branches and agencies of such Secured Creditor wherever located)
to or for the credit or the account of the Guarantor, against and on account of
the obligations and liabilities of the Guarantor to such Secured Creditor under
this Guaranty, irrespective of whether or not such Secured Creditor shall have
made any demand hereunder and although said obligations, liabilities, deposits
or claims, or any of them, shall be contingent or unmatured.
19. All notices, requests, demands or other
communications pursuant hereto shall be sent or delivered by mail, telegraph,
telex, telecopy, cable or courier service and all such notices and
communications shall, when mailed, telegraphed, telexed, telecopied, or cabled
or sent by overnight courier, be effective when deposited in the mails,
delivered to the telegraph company, cable company or overnight courier, as the
case may be, or sent by telex or telecopier, except that notices and
communications to the Administrative Agent or the Guarantor shall not be
effective until received by the Administrative Agent or the Guarantor, as the
case may be. All notices and other communications shall be in writing and
addressed to such party at (i) in the case of any Lender Creditor, as provided
in the Credit Agreement, (ii) in the case of the Guarantor, at its address set
forth opposite its signature below, and (iii) in the case of any Other Creditor,
at such address as such Other Creditor shall have specified in writing to the
Guarantor; or in any case at such other address as any of the Persons listed
above may hereafter notify the others in writing.
20. If claim is ever made upon any Secured Creditor for
repayment or recovery of any amount or amounts received in payment or on account
of any of the Guaranteed Obligations and any of the aforesaid payees repays all
or part of said amount by reason of (i) any judgment, decree or order of any
court or administrative body having jurisdiction over such payee or any of its
property or (ii) any settlement or compromise of any such claim effected by such
payee with any such claimant (including the Borrower or any other Guaranteed
Party) then and in such event the Guarantor agrees that any such judgment,
decree, order, settlement or compromise shall be binding upon the Guarantor,
notwithstanding any revocation hereof or other instrument evidencing any
liability of the Borrower or any other Guaranteed Party, and the Guarantor shall
be and remain liable to the aforesaid payees hereunder for the amount so repaid
or recovered to the same extent as if such amount had never originally been
received by any such payee.
21. (a) THIS GUARANTY AND THE RIGHTS AND OBLIGATIONS OF
THE SECURED CREDITORS AND OF THE UNDERSIGNED HEREUNDER SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK. Any legal action
or proceeding with respect to this Guaranty or any other Credit Document to
which the Guarantor is a party may be brought in the courts of the State of New
York or of the United States of America for the Southern District of New York in
each case which are located in the County of New York, and, by execution and
delivery of this Guaranty,
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the Guarantor hereby irrevocably accepts for itself and in respect of its
property, generally and unconditionally, the jurisdiction of the aforesaid
courts. The Guarantor hereby further irrevocably waives any claim that any such
court lacks personal jurisdiction over the Guarantor, and agrees not to plead or
claim in any legal action or proceeding with respect to this Guaranty or any
other Credit Document to which the Guarantor is a party brought in any of the
aforesaid courts that any such court lacks personal jurisdiction over the
Guarantor. The Guarantor further irrevocably consents to the service of process
out of any of the aforementioned courts in any such action or proceeding by the
mailing of copies thereof by registered or certified mail, postage prepaid, to
the Guarantor at its address set forth opposite its signature below, such
service to become effective 30 days after such mailing. The Guarantor hereby
irrevocably waives any objection to such service of process and further
irrevocably waives and agrees not to plead or claim in any action or proceeding
commenced hereunder or under any other Credit Document to which the Guarantor is
a party that such service of process was in any way invalid or ineffective.
Nothing herein shall affect the right of any of the Secured Creditors to serve
process in any other manner permitted by law or to commence legal proceedings or
otherwise proceed against the Guarantor in any other jurisdiction.
(b) The Guarantor hereby irrevocably waives any objection
which it may now or hereafter have to the laying of venue of any of the
aforesaid actions or proceedings arising out of or in connection with this
Guaranty or any other Credit Document to which the Guarantor is a party brought
in the courts referred to in clause (a) above and hereby further irrevocably
waives and agrees not to plead or claim in any such court that such action or
proceeding brought in any such court has been brought in an inconvenient forum.
(c) THE GUARANTOR AND EACH SECURED CREDITOR (BY ITS
ACCEPTANCE OF THE BENEFITS OF THIS GUARANTY) HEREBY IRREVOCABLY WAIVES ALL
RIGHTS TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT
OF OR RELATING TO THIS GUARANTY, THE OTHER CREDIT DOCUMENTS TO WHICH THE
GUARANTOR IS A PARTY OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
22. This Guaranty may be executed in any number of
counterparts and by the different parties hereto on separate counterparts, each
of which when so executed and delivered shall be an original, but all of which
shall together constitute one and the same instrument. A set of counterparts
executed by all the parties hereto shall be lodged with the Guarantor and the
Administrative Agent.
23. All payments made by the Guarantor hereunder will be
made without setoff, counterclaim or other defense and on the same basis as
payments are made by the Borrower under Sections 4.03 and 4.04 of the Credit
Agreement.
* * *
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IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to
be executed and delivered as of the date first above written.
Address: TOWN SPORTS INTERNATIONAL
000 Xxxxxxx Xxxxxx, 25th Floor HOLDINGS, INC.,
Xxx Xxxx, XX 00000 as the Guarantor
Attention: Xxxxxxx Xxxx
Tel. No.: (000) 000-0000 By: /s/ Xxxxxxx Xxxx
Fax No.: (000) 000-0000 __________________________
Name: Xxxxxxx Xxxx
Title: Chief Financial Officer
Accepted and Agreed to:
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Administrative Agent
By: /s/ Xxxxx X. Xxxxx
______________________________
Name: Xxxxx X. Xxxxx
Title: Vice President
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