CONTINGENT INDEMNIFICATION OBLIGATIONS AND OTHER CONTINGENT
OBLIGATIONS RELATED THERETO WHICH EXPRESSLY SURVIVE THE REPAYMENT OF THE
EXISTING TERM LOAN), SHALL BE DUE AND PAYABLE ON THE EARLIER OF (A) THE EXISTING
TERM LOAN MATURITY DATE, OR (B) THE DATE OF TERMINATION OF THIS AGREEMENT,
WHETHER BY ITS TERMS, BY PREPAYMENT, OR BY ACCELERATION.
(C)
THE AMENDMENT AND RESTATEMENT OF THE EXISTING TERM LOAN AS SET
FORTH HEREIN, SHALL NOT, IN ANY MANNER, BE CONSTRUED TO CONSTITUTE PAYMENT OF,
OR IMPAIR, LIMIT, CANCEL OR EXTINGUISH, OR CONSTITUTE A NOVATION IN RESPECT OF,
ANY OF THE OBLIGATIONS ARISING UNDER THE EXISTING TERM LOAN. THE EXISTING TERM
LOAN SHALL CONTINUE TO BE REPAID, TOGETHER WITH ALL ACCRUED AND UNPAID INTEREST
THEREON AND ALL OTHER OBLIGATIONS OUTSTANDING WITH RESPECT THERETO (OTHER THAN
CONTINGENT INDEMNIFICATION OBLIGATIONS AND OTHER CONTINGENT OBLIGATIONS RELATED
THERETO WHICH EXPRESSLY SURVIVE THE REPAYMENT OF THE EXISTING TERM LOAN), IN
ACCORDANCE WITH THIS AGREEMENT AND THE OTHER FINANCING AGREEMENTS AND THE
EXISTING TERM LOAN MAY BE PREPAID IN WHOLE OR IN PART AT ANY TIME WITHOUT
PREMIUM OR PENALTY IN ACCORDANCE WITH THE PROVISIONS OF SECTIONS 2.3(D) THROUGH
2.3(G) HEREOF, BUT ONCE REPAID MAY NOT BE REBORROWED. THE EXISTING TERM LOAN
SHALL CONTINUE TO BE SECURED BY ALL OF THE COLLATERAL.
(D)
BORROWERS MAY, AT THEIR OPTION, MAKE A PREPAYMENT OF ALL OR ANY
PORTION OF THE OUTSTANDING BALANCE OF THE EXISTING TERM LOAN:
(I)
SO LONG AS: (A) AT ALL TIMES DURING THE THIRTY (30) DAY PERIOD
IMMEDIATELY PRIOR TO SUCH PAYMENT AND AFTER GIVING EFFECT TO SUCH PAYMENT,
BORROWERS HAVE EXCESS AVAILABILITY PLUS QUALIFIED CASH OF NO LESS THAN
$40,000,000; (B) BORROWERS' EBITDA FOR THE TWELVE (12) MONTH PERIOD MOST
RECENTLY ENDED IS $55,000,000 OR MORE; AND (C) BOTH BEFORE AND AFTER GIVING
EFFECT TO SUCH PAYMENT, NO DEFAULT OR EVENT OF DEFAULT EXISTS OR WOULD OCCUR;
(II)
WITH THE NET CASH PROCEEDS OF ANY ISSUANCE OR SALE OF, OR CAPITAL
CONTRIBUTION IN RESPECT OF, ANY CAPITAL STOCK OF NY&CO AFTER THE DATE HEREOF IN
EACH CASE, TO THE EXTENT THE TRANSACTION GIVING RISE TO SUCH PROCEEDS IS NOT
PROHIBITED UNDER THE TERMS OF THE FINANCING AGREEMENTS OR IS OTHERWISE CONSENTED
TO BY AGENT IN WRITING; OR
(III)
WITH THE NET CASH PROCEEDS OF A REFINANCING OF THE EXISTING TERM
LOAN ON TERMS AND CONDITIONS REASONABLY SATISFACTORY TO AGENT.
(E)
WITHIN TEN (10) DAYS FOLLOWING THE RECEIPT BY BORROWERS OF THE NET
CASH PROCEEDS FROM THE INCURRENCE OR ISSUANCE BY BORROWERS OF ANY INDEBTEDNESS
FOR BORROWED
47
money described in clause (a) of the definition of Indebtedness on or after the
date hereof (which shall exclude for purposes of this Section 2.3(e) the
Indebtedness permitted under Sections 9.9(e), (f), (g), (h) and (i) hereof),
Borrowers shall, absolutely and unconditionally and without notice or demand,
prepay the then outstanding principal amount of the Existing Term Loan in an
amount equal to fifty (50%) percent of the amount by which such Net Cash
Proceeds exceed $20,000,000; provided, that, in the event