EXHIBIT 10.5
EXECUTION COPY
SUBSIDIARIES GUARANTY
SUBSIDIARIES GUARANTY, dated as of November 25, 2002, (as amended,
modified or supplemented from time to time, this "Guaranty"), made by each of
the undersigned guarantors (each a "Guarantor" and, together with any other
entity that becomes a guarantor hereunder pursuant to Section 26 hereof, the
"Guarantors"). 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, RBS Global, Inc. ("HOLDINGS"), Rexnord Corporation (the
"Borrower"), the lenders from time to time party thereto (the "LENDERS"),
Deutsche Bank Trust Company Americas, as Administrative Agent (together with any
successor Administrative Agent, the "Administrative Agent"), General Electric
Capital Corporation and Wachovia Bank, National Association, as Co-Documentation
Agents, and Deutsche Bank Securities Inc. and Credit Suisse First Boston, acting
through its Cayman Islands Branch, as Joint Lead Arrangers and Joint Book
Runners (the "Joint Lead Arrangers") have entered into a Credit Agreement, dated
as of November 25, 2002 (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 Letter of Credit
Issuers, the Administrative Agent and each other Agent are herein called the
"Lender Creditors");
WHEREAS, the Borrower and one or more of its Subsidiaries may at any
time and from time to time enter into one or more Interest Rate Protection
Agreements (each such Interest Rate Protection Agreement, except to the extent
expressly stated therein that the liabilities and indebtedness thereunder are
not "Obligations" for the purposes of this Agreement, a "Covered Agreement" and,
collectively, the "Covered Agreements") with one or more Lenders or any
affiliate thereof (each such Lender or affiliate party to any such Covered
Agreement, even if the respective Lender subsequently ceases to be a Lender
under the Credit Agreement for any reason, together with such Xxxxxx's or
affiliate's successors and assigns, if any, collectively, the "Other Creditors"
and, together with the Lender Creditors, the "Secured Creditors");
WHEREAS, each Guarantor is a direct or indirect Subsidiary or, in the
case of Intermediate Holdco, the immediate Parent of the Borrower;
WHEREAS, it is a condition to the making of Loans to, and the issuance
of Letters of Credit for the account of, the Borrower under the Credit Agreement
that each Guarantor shall have executed and delivered this Guaranty; and
WHEREAS, each 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 one or more
of its Subsidiaries of Covered
Agreements and, accordingly, desires to execute this Guaranty in order to
satisfy the conditions described in the preceding paragraph;
NOW, THEREFORE, in consideration of the foregoing and other benefits
accruing to each Guarantor, the receipt and sufficiency of which are hereby
acknowledged, each Guarantor hereby makes the following representations and
warranties to the Secured Creditors and hereby covenants and agrees with each
Secured Creditor as follows:
1. Each Guarantor, jointly and severally, 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,
except to the extent consisting of obligations, liabilities or indebtedness with
respect to Covered Agreements, 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 Covered 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 Covered 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 Covered 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 Covered Agreement
with an Other Creditor. Each Guarantor understands, agrees and confirms that the
Secured Creditors may enforce this Guaranty up to the full amount of the
Guaranteed Obligations against such Guarantor without proceeding against any
other Guarantor, the Borrower, any other Guaranteed Party, against any security
for the Guaranteed Obligations, or under any other guaranty covering all or a
portion of the Guaranteed Obligations.
2. Additionally, each Guarantor, jointly and severally,
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 9.05 of
the Credit Agreement, and unconditionally and irrevocably, jointly and
severally, promises to pay such Guaranteed Obligations to the Secured Creditors,
or order, on demand upon or after the occurrence of the events described above.
This Guaranty shall constitute a guaranty of payment, and not of collection.
3. The liability of each Guarantor hereunder is primary, absolute,
joint and several, 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 such Guarantor, any other Guarantor, any
other guarantor or by any other party, and the liability of each 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
each 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 each Guarantor hereunder are independent of
the obligations of any other Guarantor, any other guarantor, the Borrower or any
other Guaranteed Party, and a separate action or actions may be brought and
prosecuted against each Guarantor whether or not action is brought against any
other Guarantor, any other guarantor, the Borrower or any other Guaranteed Party
and whether or not any other Guarantor, any other guarantor, the Borrower or any
other Guaranteed Party be joined in any such action or actions. Each 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
each Guarantor.
5. Each 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, except
for such notice as is expressly required pursuant to the Credit Documents or the
relevant Covered Agreement, as applicable, any other notice to, any party liable
thereon (including such Guarantor, any other 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, any Guarantor, without incurring
responsibility to such Guarantor, without impairing or releasing the obligations
of such Guarantor hereunder, upon or without any terms or conditions and in
whole or in part:
(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, 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 in accordance with the terms of the Credit
Documents or the relevant Covered Agreement, as applicable, by whomsoever paid
or howsoever realized to any liability or liabilities of the Borrower or any
other Guaranteed Party to the Secured Creditors pursuant to the Credit Documents
or the relevant Covered Agreement, as applicable, 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 Covered Agreements, the Credit Documents or any of the
instruments or agreements referred to therein, or otherwise amend, modify or
supplement any of the Covered Agreements, the Credit Documents or any of such
other instruments or agreements, in each case in accordance with the terms
thereof;
(h) act or fail to act in any manner which may deprive such 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.
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 any Guarantor in any case shall entitle such 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 any 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 any 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 such 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
such Guarantor under the other provisions of this Guaranty. Without limiting the
generality of the foregoing, each 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 paid in full in cash.
9. (a) Each 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 other 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 other Guarantor, any other guarantor of the Guaranteed
Obligations or any other party; or (iii) pursue any other remedy in the Secured
Creditors' power whatsoever. Each Guarantor waives any defense based on or
arising out of any defense of the Borrower, any other Guaranteed Party, any
other Guarantor, any other guarantor of the Guaranteed Obligations or any other
party other than payment in full of the Guaranteed Obligations, including,
without limitation, any defense based on or arising out of the disability of the
Borrower, any other Guaranteed Party, any other 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 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, 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 any Guarantor hereunder except to the
extent the Guaranteed Obligations have been paid in full in cash. Each 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 such Guarantor against
the Borrower, any other Guaranteed Party or any other party or any security.
(b) Each Guarantor waives all presentments, demands for performance,
protests and, except as is expressly required under the Credit Documents or the
relevant Covered Agreement, 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. Each 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 such Guarantor assumes and incurs hereunder, and
agrees that the Secured Creditors shall have no duty to advise any 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, 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, 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. The
Secured Creditors further agree that this Guaranty may not be enforced against
any director, officer, employee, partner, member or stockholder of any Guarantor
(except to the extent such partner, member or stockholder is also a Guarantor
hereunder).
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 Covered Agreements, each Guarantor represents, warrants and
covenants that:
(a) Such Guarantor (i) is a duly organized and validly existing
corporation, partnership or limited liability company, as the case may be, in
good standing under the laws of the jurisdiction of its organization, (ii) has
the corporate, partnership or limited liability company power and authority, as
the case may be, 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 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.
(b) Such Guarantor has the corporate, partnership or limited
liability company power and authority, as the case may be, 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,
partnership or limited liability company action, as the case may be, to
authorize the execution, delivery and performance by it of this Guaranty and
each such other Credit Document. Such 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 such 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 such 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 such 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 such 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 (or equivalent
organizational documents) of such Guarantor or any of its Subsidiaries.
(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 such Guarantor or any
other Credit Document to which such Guarantor is a party or (ii) the legality,
validity, binding effect or enforceability of this Guaranty or any other Credit
Document to which such Guarantor is a party.
(e) There are no actions, suits or proceedings pending or, to such
Guarantor's knowledge, threatened (i) with respect to this Guaranty or any other
Credit Document to which such Guarantor is a party or (ii) with respect to such
Guarantor or any of its Subsidiaries that, either individually or in the
aggregate, could reasonably be expected to have a Material Adverse Effect.
12. Each Guarantor covenants and agrees that on and after the
Effective Date and until the termination of the Total Commitment and all Covered
Agreements and until such time as no Note or Letter of Credit remains
outstanding and all Guaranteed Obligations have
been paid in full, such Guarantor will comply, and will cause each of its
Subsidiaries to comply, with all of the applicable provisions, covenants and
agreements contained in Sections 7 and 8 of the Credit Agreement, and will take,
or will refrain from taking, as the case may be, all actions that are necessary
to be taken or not taken so that it is not in violation of any provision,
covenant or agreement contained in Section 7 or 8 of the Credit Agreement, and
so that no Default or Event of Default is caused by the actions of such
Guarantor or any of its Subsidiaries.
13. The Guarantors hereby jointly and severally agree to pay (to the
extent such amounts are not paid by the Borrower pursuant to Section 12.01 of
the Credit Agreement) all reasonable out-of-pocket costs and expenses of each
Secured Creditor actually incurred 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 White & Case LLP).
14. This Guaranty shall be binding upon each Guarantor and its
successors and assigns and shall inure to the benefit of the Secured Creditors
and their successors and permitted assigns.
15. Neither this Guaranty nor any provision hereof may be changed,
waived, discharged or terminated except with the written consent of each
Guarantor directly affected thereby and with the written consent of either (x)
the Required Lenders (or, to the extent required by Section 12.12 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 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;
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 (it being understood that the addition or release of any
Guarantor hereunder in accordance with the terms hereof or the Credit Agreement
shall not constitute a change, waiver, discharge or termination affecting any
Guarantor other than the Guarantor so added or released and shall not require
the consent of any Secured Creditor other than the Administrative Agent). 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 12.12 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 Covered Agreements.
16. Each Guarantor acknowledges that an executed (or conformed) copy
of each of the Credit Documents and Covered Agreements (if any) has been made
available to a senior officer of such Guarantor and such officer is familiar
with the contents thereof.
17. 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 (i) an Event of Default, each Lender Creditor and (ii) any payment default
under any Covered Agreement continuing after any applicable grace period, each
Other Creditor party thereto), in each case, is hereby authorized, at any time
or from time to time, without notice to any 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 but not trust accounts) and any other
indebtedness at any time held or owing by such Lender Creditor or Other
Creditor, as the case may be, to or for the credit or the account of such
Guarantor, against and on account of the obligations and liabilities of such
Guarantor to such Lender Creditor or Other Creditor, as the case may be, under
this Guaranty, irrespective of whether or not such Lender Creditor or Other
Creditor, as the case may be, shall have made any demand hereunder and although
said obligations, liabilities, deposits or claims, or any of them, shall be
contingent or unmatured. Each Secured Creditor agrees to promptly notify the
relevant Guarantor after any such setoff and application, provided that the
failure to give such notice shall not affect the validity of such setoff and
application.
18. 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 any Guarantor shall not be effective until received by the Administrative
Agent or such Guarantor, as the case may be. All notices and other
communications shall be in writing and addressed to such party (i) in the case
of any Lender Creditor, as provided in the Credit Agreement, (ii) in the case of
any Guarantor, Rexnord Corporation, 0000 Xxxx Xxxxxxxxxx Xxxxxx, Xxxxxxxxx, XX
00000, Attention: Chief Financial Officer, Telephone No.: (000)000-0000,
Facsimile No.: (000)000-0000, and (iii) in the case of any Other Creditor, at
such address as such Other Creditor shall have specified in writing to the
Guarantors; or in any case at such other address as any of the Persons listed
above may hereafter notify the others in writing.
19. 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 each Guarantor agrees that any such judgment, decree,
order, settlement or compromise shall be binding upon such Guarantor,
notwithstanding any revocation hereof or other instrument evidencing any
liability of the Borrower or any other Guaranteed Party, and such 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.
20. (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 any
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, each Guarantor hereby irrevocably accepts for
itself and in respect of its property, generally and unconditionally, the
non-exclusive jurisdiction of the aforesaid courts. Each Guarantor hereby
further irrevocably waives any claim that any such court lacks personal
jurisdiction over such 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 such Guarantor is a party brought in any of the aforesaid courts that
any such court lacks personal jurisdiction over such Guarantor. Each 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 such Guarantor at
its address set forth in Section 18 hereof or subsequently noticed in accordance
therewith, such service to become effective 30 days after such mailing. Each
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 such
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 each Guarantor in any other
jurisdiction.
(b) Each Guarantor hereby irrevocably waives (to the fullest extent
permitted by applicable law) 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
such 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) EACH 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 SUCH GUARANTOR IS A PARTY OR
THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
21. In the event that all of the Equity Interests of one or more
Guarantors is sold or otherwise disposed of or liquidated in compliance with the
requirements of Section 8.02 of the Credit Agreement (or such sale or other
disposition has been approved in writing by the Required Lenders (or all the
Lenders if required by Section 12.12 of the Credit Agreement)) and the proceeds
of such sale, disposition or liquidation are applied in accordance with the
provisions of the Credit Agreement, to the extent applicable, such Guarantor
shall upon consummation of such sale or other disposition (except to the extent
that such sale or disposition is to Holdings or another Subsidiary thereof) be
released from this Guaranty automatically and without further action and this
Guaranty shall, as to each such Guarantor or Guarantors, terminate, and have no
further force or effect (it being understood and agreed that the sale of one or
more Persons that own, directly or indirectly, all of the Equity Interests of
any Guarantor shall be deemed to be a sale of such Guarantor for the purposes of
this Section 21).
22. At any time a payment in respect of the Guaranteed Obligations is
made under this Guaranty, the right of contribution of each Guarantor against
each other Guarantor shall be determined as provided in the immediately
following sentence, with the right of contribution of each Guarantor to be
revised and restated as of each date on which a payment (a "Relevant Payment")
is made on the Guaranteed Obligations under this Guaranty. At any time that a
Relevant Payment is made by a Guarantor that results in the aggregate payments
made by such Guarantor in respect of the Guaranteed Obligations to and including
the date of the Relevant Payment exceeding such Guarantor's Contribution
Percentage (as defined below) of the aggregate payments made by all Guarantors
in respect of the Guaranteed Obligations to and including the date of the
Relevant Payment (such excess, the "Aggregate Excess Amount"), each such
Guarantor shall have a right of contribution against each other Guarantor who
has made payments in respect of the Guaranteed Obligations to and including the
date of the Relevant Payment in an aggregate amount less than such other
Guarantor's Contribution Percentage of the aggregate payments made to and
including the date of the Relevant Payment by all Guarantors in respect of the
Guaranteed Obligations (the aggregate amount of such deficit, the "Aggregate
Deficit Amount") in an amount equal to (x) a fraction the numerator of which is
the Aggregate Excess Amount of such Guarantor and the denominator of which is
the Aggregate Excess Amount of all Guarantors multiplied by (y) the Aggregate
Deficit Amount of such other Guarantor. A Guarantor's right of contribution
pursuant to the preceding sentences shall arise at the time of each computation,
subject to adjustment to the time of each computation; PROVIDED that no
Guarantor may take any action to enforce such right until the Guaranteed
Obligations have been irrevocably paid in full in cash, it being expressly
recognized and agreed by all parties hereto that any Guarantor's right of
contribution arising pursuant to this Section 22 against any other Guarantor
shall be expressly junior and subordinate to such other Guarantor's obligations
and liabilities in respect of the Guaranteed Obligations and any other
obligations owing under this Guaranty. As used in this Section 22: (i) each
Guarantor's "Contribution Percentage" shall mean the percentage obtained by
dividing (x) the Adjusted Net Worth (as defined below) of such Guarantor by (y)
the aggregate Adjusted Net Worth of all Guarantors; (ii) the "Adjusted Net
Worth" of each Guarantor shall mean the greater of (x) the Net Worth (as defined
below) of such Guarantor and (y) zero; and (iii) the "Net Worth" of each
Guarantor shall mean the amount by which the fair saleable value of such
Guarantor's assets on the date of any Relevant Payment exceeds its existing
debts and other liabilities (including contingent liabilities, but without
giving effect to any Guaranteed Obligations arising under this Guaranty or any
guaranteed obligations arising under any guaranty of the Senior Subordinated
Notes) on such date. Notwithstanding anything to the contrary contained above,
(A) any Guarantor that is released from this Guaranty pursuant to Section 21
hereof shall thereafter have no contribution obligations, or rights, pursuant to
this Section 22, and at the time of any such release, if the released Guarantor
had an Aggregate Excess Amount or an Aggregate Deficit Amount, same shall be
deemed reduced to $0, and the contribution rights and obligations of the
remaining Guarantors shall be recalculated on the respective date of release (as
otherwise provided above) based on the payments made hereunder by the remaining
Guarantors and (B) for purposes of this Section 22 only, Intermediate Holdco (if
at any time same is a Guarantor) shall be deemed to not constitute a Guarantor
for purposes of this Section 22, as a result of which it shall have no
contribution rights or obligations pursuant to this Section 22. All parties
hereto recognize and agree that, except for any right of contribution arising
pursuant to this Section 22, each Guarantor who makes any payment in respect of
the Guaranteed Obligations shall have no right of contribution or
subrogation against any other Guarantor in respect of such payment until all of
the Guaranteed Obligations have been paid in full in cash. Each of the
Guarantors recognizes and acknowledges that the rights to contribution arising
hereunder shall constitute an asset in favor of the party entitled to such
contribution. In this connection, each Guarantor has the right to waive its
contribution right against any Guarantor to the extent that after giving effect
to such waiver such Guarantor would remain solvent, in the determination of the
Required Lenders.
23. Each Guarantor and each Secured Creditor (by its acceptance of
the benefits of this Guaranty) hereby confirms that it is its intention that
this Guaranty not constitute a fraudulent transfer or conveyance for purposes of
the Bankruptcy Code, the Uniform Fraudulent Conveyance Act or any similar
Federal or state law. To effectuate the foregoing intention, each Guarantor and
each Secured Creditor (by its acceptance of the benefits of this Guaranty)
hereby irrevocably agrees that the Guaranteed Obligations guaranteed by such
Guarantor shall be limited to such amount as will, after giving effect to such
maximum amount and all other (contingent or otherwise) liabilities of such
Guarantor that are relevant under such laws (it being understood that it is the
intention of the parties to this Guaranty and the parties to, and the
beneficiaries of, any guaranty of the Senior Subordinated Notes that, to the
maximum extent permitted under applicable law, the liabilities in respect of the
guarantees of the Senior Subordinated Notes shall not be included for the
foregoing purposes and that, if any reduction is required to the amount
guaranteed by any Guarantor hereunder and with respect to the Senior
Subordinated Notes that its guarantee of amounts owing in respect of the Senior
Subordinated Notes shall first be reduced) and after giving effect to any rights
to contribution pursuant to any agreement providing for an equitable
contribution among such Guarantor and the other Guarantors, result in the
Guaranteed Obligations of such Guarantor in respect of such maximum amount not
constituting a fraudulent transfer or conveyance. Notwithstanding the provisions
of the two preceding sentences, as between the Secured Creditors and the holders
of the Senior Subordinated Notes, it is agreed (and the provisions of the Senior
Subordinated Note Indenture so provide) that any diminution (whether pursuant to
court decree or otherwise) of any Guarantor's obligation to make any
distribution or payment pursuant to this Guaranty shall have no force or effect
for purposes of the subordination provisions contained in the Senior
Subordinated Note Indenture, and that any payments received in respect of a
Guarantor's obligations with respect to the Senior Subordinated Notes shall be
turned over to the holders of the Senior Indebtedness (as defined in the Senior
Subordinated Note Indenture) (or obligations which would have constituted Senior
Indebtedness if same had not been reduced or disallowed) of such Guarantor
(which Senior Indebtedness shall be calculated as if there were no diminution
thereto pursuant to this Section 23 or for any other reason other than the
irrevocable payment in full in cash of the respective obligations which would
otherwise have constituted Senior Indebtedness) until all such Senior
Indebtedness (or obligations which would have constituted Senior Indebtedness if
same had not been reduced or disallowed) has been irrevocably paid in full in
cash.
24. 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 Guarantors and the Administrative
Agent.
25. All payments made by any 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.
26. It is understood and agreed that Intermediate Holdco and any
Subsidiary of the Borrower that is required to execute a counterpart of this
Guaranty after the date hereof pursuant to the Credit Agreement shall become a
Guarantor hereunder by (x) executing and delivering a counterpart hereof to the
Administrative Agent or (y) executing a Joinder Agreement substantially in the
form of Exhibit L of the Credit Agreement and delivering same to the
Administrative Agent.
* * *
IN WITNESS WHEREOF, each Guarantor has caused this Guaranty to be executed and
delivered as of the date first above written.
ADDAX, INC.,
as a Guarantor
By: /s/
----------------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President & CFO
BETZDORF CHAIN COMPANY INC.,
as a Guarantor
By: /s/
----------------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President & CFO
CLARKSON INDUSTRIES, INC.,
as a Guarantor
By: /s/
----------------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President & CFO
PRAGER INCORPORATED,
as a Guarantor
By: /s/
----------------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President & CFO
PT COMPONENTS, INC.,
as a Guarantor
By: /s/
----------------------------------
Name: Xxxxxx Xxxxxx
Annex I
Page 2
Title: Vice President & CFO
RAC-I, INC.,
as a Guarantor
By: /s/
----------------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President & CFO
RBS ACQUISITION CORPORATION,
as a Guarantor
By: /s/
----------------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President & CFO
RBS CHINA HOLDINGS, L.L.C.,
as a Guarantor
By: /s/
----------------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President & CFO
RBS NORTH AMERICA, INC.,
as a Guarantor
By: /s/
----------------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President & CFO
REXNORD GERMANY-I INC.,
as a Guarantor
By: /s/
----------------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President & CFO
REXNORD INTERNATIONAL INC.,
as a Guarantor
By: /s/
----------------------------------
Annex I
Page 3
Name: Xxxxxx Xxxxxx
Title: Vice President & CFO
REXNORD, LTD.,
as a Guarantor
By: /s/
----------------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President & CFO
REXNORD NORTH AMERICA HOLDINGS, INC.,
as a Guarantor
By: /s/
----------------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President & CFO
REXNORD PUERTO RICO INC.,
as a Guarantor
By: /s/
----------------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President & CFO
XXXXXXX XXXX LICENSCO INC.,
as a Guarantor
By: /s/
----------------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President & CFO
X.X. XXXX INC.,
as a Guarantor
By: /s/
----------------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President & CFO
Annex I
Page 4
Accepted and Agreed to:
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Administrative Agent
By /s/
----------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
