EXHIBIT 10.4
INDEMNITY, SUBROGATION AND CONTRIBUTION AGREEMENT
INDEMNITY, SUBROGATION and CONTRIBUTION AGREEMENT dated as of
October 19, 1995, as amended and restated as of November 10, 1998, among
UCAR INTERNATIONAL INC., a Delaware corporation ("UCAR"), UCAR GLOBAL
ENTERPRISES INC., a Delaware corporation, as borrower (the "BORROWER"),
each of the U.S. Subsidiaries party hereto (collectively, the "SUBSIDIARY
GUARANTORS"), and THE CHASE MANHATTAN BANK, a New York banking
corporation, as collateral agent for the Secured Parties (such term and
each other capitalized term used but not defined herein having the meaning
given it in Article I of the Credit Agreements). Reference is made to (i)
the Credit Agreement dated as of October 19, 1995, as amended and restated
as of March 19, 1997 and November 10, 1998 (as the same may be amended,
supplemented or otherwise modified from time to time, the "EXISTING CREDIT
AGREEMENT"), among UCAR, the Borrower, the Subsidiary Borrowers party
thereto, the Lenders party thereto, the Fronting Banks party thereto and
The Chase Manhattan Bank, as administrative agent and collateral agent and
(ii) the Credit Agreement dated as of November 10, 1998 among UCAR, the
Borrower, UCAR S.A., the Lenders party thereto, The Chase Manhattan Bank,
as administrative agent and collateral agent, Credit Suisse First Boston,
as syndication agent, and ▇▇▇▇▇▇ Guaranty Trust Company of New York, as
syndication agent (as the same may be amended, supplemented or otherwise
modified from time to time, the "TRANCHE C FACILITY CREDIT AGREEMENT", and
together with the Existing Credit Agreement, the "CREDIT AGREEMENTS").
The Lenders and the Fronting Banks, respectively, have agreed to
make Loans and to issue Letters of Credit pursuant to, and upon the terms and
subject to the conditions specified in, the Credit Agreements. Each of the
Subsidiary Guarantors has agreed to guarantee, among other things, all the
obligations of the Borrower and the other Credit Parties under the Credit
Agreements.
The obligations of the Lenders to make the Loans and of the Fronting
Banks to issue the Letters of Credit under the Credit Agreements are conditioned
upon, among other things, the execution and delivery by the Subsidiary
Guarantors of an indemnity, subrogation and contribution agreement in the form
hereof (the "AGREEMENT") to support the due and punctual payment of, with
respect to each Subsidiary Guarantor, its obligations as obligor or guarantor in
respect of (a) the unpaid principal of and premium, if any, and interest
(including interest accruing at the then applicable rate provided in the
Existing Credit Agreement after the maturity of the Loans thereunder and
interest accruing at the then applicable rate provided in the Existing Credit
Agreement after the filing of any petition in bankruptcy, or the commencement of
any insolvency, reorganization or like proceeding, relating to any Credit Party
thereunder whether or not a claim for post-filing or post-petition interest is
allowed in such proceeding) on the Loans made under the Existing Credit
Agreement,
2
when and as due, whether at maturity, by acceleration, upon one or more dates
set for prepayment or otherwise, (b) the unpaid principal of and premium, if
any, and interest (including interest accruing at the then applicable rate
provided in the Tranche C Facility Credit Agreement after the maturity of the
Loans thereunder and interest accruing at the applicable rate provided in the
Tranche C Facility Credit Agreement after the filing of any petition in
bankruptcy, or the commencement of any insolvency, reorganization or like
proceeding, relating to any Credit Party thereunder whether or not a claim for
post-filing or post-petition interest is allowed in such proceeding) on the
Loans made under the Tranche C Facility Credit Agreement, when and as due,
whether at maturity, by acceleration, upon one or more dates set for prepayment
or otherwise, (c) each payment required to be made by any Credit Party under the
Existing Credit Agreement, when and as due, including payments in respect of
reimbursements of L/C Disbursements, interest thereon and obligations to provide
cash collateral, (d) each payment required to be made by any Credit Party under
the Tranche C Facility Credit Agreement, when and as due, and (e) all other
obligations and liabilities of every nature of the Credit Parties under the
Credit Agreements from time to time owed to the Secured Parties or any of them,
whether direct or indirect, absolute or contingent, due or to become due, or now
existing or hereafter incurred (including monetary obligations incurred during
the pendency of any bankruptcy, insolvency, receivership or other similar
proceeding, regardless of whether allowed or allowable in such proceeding),
which may arise under, out of, or in connection with, the Existing Credit
Agreement, the Tranche C Facility Credit Agreement, any Guarantee Agreement, any
Security Document or any other Loan Document and any obligation of the Borrower
or any Credit Party under either of the Credit Agreements to a Lender under
either Credit Agreements pursuant to an Interest/Exchange Rate Protection
Agreement or under any other document made, delivered or given in connection
with any of the foregoing, in each case whether on account of principal,
interest, reimbursement obligations, fees, indemnities, costs, expenses or
otherwise (including all fees and disbursements of counsel to the Collateral
Agent or to the Secured Parties that are required to be paid by the Borrower or
any Credit Party pursuant to the terms of the Existing Credit Agreement, the
Tranche C Facility Credit Agreement, any Guarantee Agreement, any Security
Document, any other Loan Document or any Interest/Exchange Rate Protection
Agreement with a Lender (all of the foregoing obligations collectively, the
"OBLIGATIONS").
Accordingly, UCAR and the Borrower, each Subsidiary Guarantor and
the Collateral Agent agree as follows:
SECTION 1. INDEMNITY AND SUBROGATION. In addition to all such rights
of indemnity and subrogation as the Subsidiary Guarantors may have under
applicable law (but subject to Sec tion 3), UCAR and the Borrower agree that (a)
in the event a pay ment shall be made by any Subsidiary Guarantor under the
Subsidiary Guarantee Agreement, UCAR and the Borrower shall indemnify such
Subsidiary Guarantor for the full amount of such payment and such Subsidiary
Guarantor shall be subrogated to the rights of the person to whom such payment
shall have been made to
3
the extent of such payment and (b) in the event any assets of any Subsidiary
Guarantor shall be sold pursuant to any applicable security agreement or similar
instrument or agreement to satisfy a claim of any Secured Party, UCAR and the
Borrower shall indemnify such Subsidiary Guarantor in an amount equal to the
greater of the book value or the fair market value of the assets so sold.
SECTION 2. CONTRIBUTION AND SUBROGATION. Each Subsidiary Guarantor
agrees (subject to Section 3) that in the event a payment shall be made by any
Subsidiary Guarantor under the Subsidiary Guarantee Agreement or assets of any
Subsidiary Guarantor shall be sold pursuant to any applicable security agreement
or similar instrument or agreement to satisfy a claim of any Secured Party, and
such Subsidiary Guarantor (the "CLAIMING SUBSIDIARY GUARANTOR") shall not have
been indemnified by UCAR or the Borrower as provided in Section 1, each other
Subsidiary Guarantor (a "CONTRIBUTING SUBSIDIARY GUARANTOR") shall indemnify the
Claiming Subsidiary Guarantor in an amount equal to the amount of such payment
or the greater of the book value or the fair market value of such assets, as the
case may be, multiplied by a fraction of which the numerator shall be the net
worth of the Contributing Subsidiary Guarantor on the date hereof and the
denominator shall be the aggregate net worth of all the Subsidiary Guarantors on
the date hereof (or, in the case of any Subsidiary Guarantor becoming a party
hereto pursuant to Section 16, the date of the Supplement hereto executed and
delivered by such Subsidiary Guarantor). Any Contributing Subsidiary Guarantor
making any payment to a Claiming Subsidiary Guarantor pursuant to this Section 2
shall be subrogated to the rights of such Claiming Subsidiary Guarantor under
Section 1 to the extent of such payment.
SECTION 3. SUBORDINATION. Notwithstanding any provision of this
Agreement to the contrary, all rights of the Subsidiary Guarantors under
Sections 1 and 2 and all other rights of indemnity, contribution or subrogation
under applicable law or otherwise shall be fully subordinated to the
indefeasible payment in full of the Obligations. No failure on the part of UCAR,
the Borrower or any Subsidiary Guarantor to make the payments required by
Sections 1 and 2 (or any other payments required under applicable law or
otherwise) shall in any respect limit the obligations and liabilities of any
other Subsidiary Guarantor with respect to any Guarantee, and each Subsidiary
Guarantor shall remain liable for the full amount of the Obligations that such
Subsidiary Guarantor has otherwise guaranteed.
SECTION 4. TERMINATION. This Agreement shall terminate when all the
Obligations have been indefeasibly paid in full, no Letters of Credit are
outstanding and the Secured Parties have no further Commitments under the Credit
Agreements.
SECTION 5. CONTINUED EFFECTIVENESS. UCAR, the Borrower and each
Subsidiary Guarantor further agree that this Agreement shall continue to be
effective or be reinstated, as the case may be, if at any time payment, or any
part thereof, of principal of or interest on any Obligation is rescinded or must
otherwise be restored by any Secured Party or any Subsidiary Guarantor upon the
4
bankruptcy or reorganization of UCAR, the Borrower, any Subsidiary Guarantor or
otherwise.
SECTION 6. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 7. WAIVERS; AMENDMENT. (a) No failure or delay of the
Collateral Agent, any Secured Party, or any Guarantor in exercising any power or
right hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise of any such right or power or any abandonment or discontinuance
of steps to enforce such a right or power preclude any other or further exercise
thereof or the exercise of any other right or power. The rights and the remedies
of the Secured Parties under the other Loan Documents are cumulative and are not
exclusive of any rights or remedies that they would otherwise have. No waiver of
any provisions of this Agreement or consent to any departure by any Subsidiary
Guarantor therefrom shall in any event be effective unless the same shall be
permitted by paragraph (b) below, and then such waiver or consent shall be
effective only in the specific instance and for the purpose for which given. No
notice or demand on any Subsidiary Guarantor in any case shall entitle such
Subsidiary Guarantor to any other or further notice or demand in similar or
other circumstances.
(b) Except for the operation of Section 16 of this Agreement,
neither this Agreement nor any provision hereof may be waived, amended or
modified except pursuant to a written agreement entered into between the
Subsidiary Guarantors and the Collateral Agent, with the prior written consent
of the Required Secured Parties.
SECTION 8. NOTICES. All communications and notices hereunder shall
be in writing and given as provided in the Credit Agreements, except those to
any Subsidiary Guarantor that is not a Credit Party, which shall be directed to
the address set forth under its signature below.
SECTION 9. BINDING AGREEMENT; ASSIGNMENTS. This Agreement shall
become effective as to each of UCAR, the Borrower or any Subsidiary Guarantor
when a counterpart hereof executed on behalf of UCAR, the Borrower or such
Subsidiary Guarantor shall have been delivered to the Collateral Agent and a
counterpart hereof shall have been executed on behalf of the Collateral Agent,
and thereafter shall be binding upon each of UCAR, the Borrower or such
Subsidiary Guarantor and the Collateral Agent and their respective successors
and permitted assigns, and shall inure to the benefit of such Subsidiary
Guarantor and the Secured Parties, and their respective successors and permitted
assigns, except that no Subsidiary Guarantor shall have the right to assign its
rights hereunder or any interest herein (and any such attempted assignment shall
be void), except as expressly contemplated by this Agreement or the other Loan
Documents.
SECTION 10. SUCCESSORS AND ASSIGNS. Whenever in this Agreement any
of the parties hereto is referred to, such reference
5
shall be deemed to include the successors and permitted assigns of such party,
and all covenants, promises and agreements by or on behalf of each of UCAR, the
Borrower or any Subsidiary Guarantor or the Collateral Agent that are contained
in this Agreement shall bind and inure to the benefit of their respective
successors and permitted assigns.
SECTION 11. SURVIVAL OF AGREEMENT; SEVERABILITY. (a) All covenants,
agreements, representations and warranties made by each of UCAR, the Borrower
and each Subsidiary Guarantor herein and in any certificates or other
instruments prepared or delivered in connection with or pursuant to this
Agreement or any other Loan Document shall be considered to have been relied
upon by the Secured Parties and each Subsidiary Guarantor and shall survive the
making by the Lenders of the Loans, the execution and delivery to the Lenders of
the Loan Documents and the issuance by any Fronting Bank of the Letters of
Credit, regardless of any investigation made by the Secured Parties or on their
behalf, and shall continue in full force and effect as long as the principal of
or any accrued interest on any Loan or L/C Disbursement or any Fee or any other
amount payable under, or in respect of, this Agreement or under any of the other
Loan Documents (other than any Local Facility Loan Document that is not
supported in any way by any Loan Document (other than another Local Facility
Loan Document)) is outstanding and unpaid and so long as any Letter of Credit is
outstanding and so long as the Commitments have not been terminated.
(b) In the event any one or more of the provisions contained in this
Agreement or in any other Loan Document should be held invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein and therein shall not in any way be
affected or impaired thereby (it being understood that the invalidity of a
particular provision in a particular jurisdiction shall not in and of itself
affect the validity of such provision in any other jurisdiction). The parties
shall endeavor in good-faith negotiations to replace the invalid, illegal or
unenforceable provisions with valid provisions, the economic effect of which
comes as close as possible to that of the invalid, illegal or unenforceable
provisions.
SECTION 12. COUNTERPARTS. This 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 but one instrument.
SECTION 13. RULES OF INTERPRETATION. The rules of interpretation
specified in Section 1.02 of the Credit Agreements shall be applicable to this
Agreement.
SECTION 14. JURISDICTION; CONSENT TO SERVICE OF PROCESS. (a) Each of
UCAR, the Borrower and each Subsidiary Guarantor hereby irrevocably and
unconditionally submits, for itself and its property, to the nonexclusive
jurisdiction of any New York State court or Federal court of the United States
of America sitting in New York City, and any appellate court from any
6
thereof, in any action or proceeding arising out of or relating to this
Agreement, or for recognition or enforcement of any judgment related to any such
action or proceeding, and each of the parties hereto hereby irrevocably and
unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in such New York State or, to the extent
permitted by law, in such Federal court. Each of the parties hereto agrees that
a final judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law. Nothing in this Agreement shall affect any right that any Loan
Party or any Secured Party may otherwise have to bring any action or proceeding
relating to this Agreement against UCAR, the Borrower or any Subsidiary
Guarantor or any Secured Party or their properties in the courts of any
jurisdiction.
(b) Each of UCAR, the Borrower, each Subsidiary Guarantor and each
Secured Party hereby irrevocably and uncondi tionally waives, to the fullest
extent it may legally and effectively do so, any objection it may now or
hereafter have to the laying of venue of any suit, action or proceeding arising
out of or relating to this Agreement in any New York State or Federal court.
Each of the parties hereto hereby irrevocably waives, to the fullest extent
permitted by law, the defense of an inconvenient forum to the maintenance of
such action or proceeding in any such court.
(c) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 8. Nothing in this
Agreement will affect the right of any party to this Agreement to serve process
in any other manner permitted by law.
SECTION 15. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES,
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A
TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT
OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT. EACH PARTY HERETO (A) CERTIFIES
THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT
AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY,
AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 15.
SECTION 16. ADDITIONAL SUBSIDIARY GUARANTORS. Pursuant to Section
5.11 of the Credit Agreements, each Subsidiary incorporated or otherwise
organized in the United States of America (a "U.S. SUBSIDIARY") that was not in
existence or not a Subsidiary on the date thereof is required to enter into this
Agreement as a Subsidiary Guarantor upon becoming a Subsidiary. Upon execution
and delivery, after the date hereof, by the Collateral Agent and a U.S.
Subsidiary of an instrument in the form of Annex 1, such U.S. Subsidiary shall
become a Subsidiary Guarantor hereunder with the same force and effect as if
originally named as a Subsidiary Guarantor hereunder. The execution and delivery
of any such instrument shall not require
7
the consent of any Subsidiary Guarantor hereunder. The rights and obligations of
each Subsidiary Guarantor hereunder shall remain in full force and effect
notwithstanding the addition of any new Subsidiary Guarantor as a party to this
Agreement.
SECTION 17. HEADINGS. Article and Section headings used herein are
for convenience of reference only, are not part of this Agreement and are not to
affect the construction of, or to be taken into consideration in interpretive,
this Agreement.
8
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their duly authorized officers as of the date first appearing
above.
UCAR INTERNATIONAL INC.
by /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Controller
UCAR GLOBAL ENTERPRISES INC.
by /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Controller
EACH OF THE SUBSIDIARY GUARANTORS
LISTED ON SCHEDULE I HERETO
by /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Controller
THE CHASE MANHATTAN BANK, as
Collateral Agent
by /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
9
SCHEDULE I
TO INDEMNITY SUBROGATION
AND CONTRIBUTION AGREEMENT
SUBSIDIARY GUARANTORS
UCAR Carbon Company Inc.
UCAR Carbon Technology Corporation
UCAR Holdings Inc.
UCAR Holdings II Inc.
UCAR Holdings III Inc.
UCAR International Trading Inc.
Union Carbide Grafito, Inc.
UCAR Composites Inc.
1
ANNEX I TO
INDEMNITY, SUBROGATION
AND CONTRIBUTION AGREEMENT
SUPPLEMENT NO. dated as of [ ], to the Indemnity,
Subrogation and Contribution Agreement dated as of as of
October 19, 1995, as amended and restated as of November 10,
1998 (the "INDEMNITY, SUBROGATION AND CONTRIBUTION
AGREEMENT"), among UCAR INTERNATIONAL INC., a Delaware
corporation ("UCAR"), UCAR GLOBAL ENTERPRISES INC., a Delaware
corporation (the "BORROWER"), each of Subsidiary Guarantors
(each capitalized term used but not defined having the meaning
given it in the Indemnity, Subrogation and Contribution
Agreement or the Credit Agreements) party thereto and THE
CHASE MANHATTAN BANK, a New York banking corporation, as
Collateral Agent for the Secured Parties.
A. Reference is made to (i) the Credit Agreement dated as of October
19, 1995, as amended and restated as of March 19, 1997 and November 10, 1998 (as
the same may be amended, supplemented or otherwise modified from time to time,
the "EXISTING CREDIT AGREEMENT") among UCAR, the Borrower, the Subsidiary
Borrowers party thereto, the Lenders party thereto, the Fronting Banks party
thereto and The Chase Manhattan Bank, as administrative agent and collateral
agent and (ii) the Credit Agreement dated as of November 10, 1998, among UCAR,
the Borrower, UCAR S.A., the Lenders party thereto, The Chase Manhattan Bank, as
administrative agent and collateral agent, Credit Suisse First Boston, as
syndication agent, and ▇▇▇▇▇▇ Guaranty Trust Company of New York, as syndication
agent (as the same may be amended, supplemented or otherwise modified from time
to time, the "TRANCHE C FACILITY CREDIT AGREEMENT", and together with the
Existing Credit Agreement, the "CREDIT AGREEMENTS").
B. Certain Subsidiary Guarantors have entered into the Indemnity,
Subrogation and Contribution Agreement in order to induce the Lenders to make
Loans and the Fronting Banks to issue Letters of Credit pursuant to, and upon
the terms and subject to the conditions specified in, the Credit Agreements.
Pursuant to Section 5.11 of the Credit Agreements, promptly after its creation
or acquisition, each additional U.S. Subsidiary is required to become a party to
the Indemnity, Subrogation and Contribution Agreement as a Subsidiary Guarantor.
Section 16 of the Indemnity, Subrogation and Contribution Agreement provides
that additional U.S. Subsidiaries may become Subsidiary Guarantors under the
Indemnity, Subrogation and Contribution Agreement by execution and delivery of
an instrument in the form of this Supplement. The undersigned (the "NEW
SUBSIDIARY GUARANTOR") is a U.S. Subsidiary and is executing this Supplement in
accordance with the require ments of the Credit Agreements to become a
Subsidiary Guarantor under the Indemnity, Subrogation and Contribution Agreement
in order to induce the Lenders to make additional Loans and the Fronting Banks
to issue additional Letters of Credit and as consideration for Loans previously
made and Letters of Credit previously issued.
2
Accordingly, the Collateral Agent and the New Subsidiary Guarantor
agree as follows:
SECTION 1. In accordance with Section 16 of the Indemnity,
Subrogation and Contribution Agreement, the New Subsidiary Guarantor by its
signature below becomes a Subsidiary Guarantor under the Indemnity, Subrogation
and Contribution Agreement with the same force and effect as if originally named
therein as a Subsidiary Guarantor and the New Subsidiary Guarantor hereby agrees
to all the terms and provisions of the Indemnity, Subrogation and Contribution
Agreement applicable to it as a Subsidiary Guarantor thereunder. Each reference
to a "Subsidiary Guarantor" in the Indemnity, Subrogation and Contribution
Agreement shall be deemed to include the New Subsidiary Guarantor. The
Indemnity, Subrogation and Contribution Agreement is hereby incorporated herein
by reference.
SECTION 2. The New Subsidiary Guarantor represents and warrants to
the Secured Parties that this Supplement has been duly authorized, executed and
delivered by it and constitutes its legal, valid and binding obligation,
enforceable against it in accordance with its terms, subject to the effects of
applicable bankruptcy, insolvency or similar laws affecting creditors' rights
generally and equitable principles of general applicability.
SECTION 3. This Supplement may be executed in two or more
counterparts, each of which shall constitute an original, but all of which, when
taken together, shall constitute but one instrument. This Supplement shall
become effective when the Collateral Agent shall have received counterparts of
this Supplement that, when taken together, bear the signatures of the New
Subsidiary Guarantor and the Collateral Agent.
SECTION 4. Except as expressly supplemented hereby, the Indemnity,
Subrogation and Contribution Agreement shall remain in full force and effect.
SECTION 5. THIS SUPPLEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 6. If any one or more of the provisions contained in this
Supplement should be held invalid, illegal or unenforceable in any respect,
neither party hereto shall be required to comply with such provision for so long
as such provision is held to be invalid, illegal or unenforceable, but the
validity, legality and enforceability of the remaining provisions contained
herein and in the Indemnity, Subrogation and Contribution Agreement shall not in
any way be affected or impaired. The parties hereto shall endeavor in good-faith
negotiations to replace the invalid, illegal or unenforceable provisions with
valid provisions the economic effect of which comes as close as possible to that
of the invalid, illegal or unenforceable provisions.
SECTION 7. All communications and notices hereunder shall be in
writing and given as provided in the Credit Agreement. All communications and
notices hereunder to the New Subsidiary
3
Guarantor shall be given to it at the address set forth under its signature,
with a copy to the Borrower.
IN WITNESS WHEREOF, the New Subsidiary Guarantor and the Collateral
Agent have duly executed this Supplement to the Indemnity, Subrogation and
Contribution Agreement as of the day and year first above written.
[NAME OF NEW SUBSIDIARY
GUARANTOR],
by_____________________________
Name: ____________________
Title: ____________________
Address: ____________________
THE CHASE MANHATTAN BANK, as
Collateral Agent,
by_____________________________
Name: ____________________
Title: ____________________