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Exhibit 4.6
HOLDING GUARANTEE
GUARANTEE, dated as of April 28, 2000, made by RACI HOLDING,
INC., a Delaware corporation (the "Guarantor") in favor of THE CHASE MANHATTAN
BANK, a New York banking corporation, as administrative agent (in such capacity,
the "Administrative Agent") for the several banks and other financial
institutions (the "Lenders") from time to time parties to the Amended and
Restated Credit Agreement, dated as of April 28, 2000 (as the same may be
amended, supplemented, waived or otherwise modified from time to time, the
"Credit Agreement"), among Remington Arms Company, Inc., a Delaware corporation
(the "Borrower"), the Lenders, Chase Securities Inc. and Banc of America
Securities LLC, as joint lead arrangers, Bank of America, N.A., as syndication
agent, Xxxxxxx Xxxxx Credit Partners, L.P., as documentation agent,
(collectively the "Other Representatives") and the Administrative Agent.
WITNESSETH:
WHEREAS, pursuant to the Credit Agreement, the Lenders have
severally agreed to make Extensions of Credit (as defined in the Credit
Agreement) to the Borrower upon the terms and subject to the conditions set
forth therein;
WHEREAS, it is a condition precedent to the obligation of the
Lenders to make their respective initial Extensions of Credit to the Borrower
under the Credit Agreement that the Guarantor shall have executed and delivered
this Guarantee to the Administrative Agent, for the ratable benefit of the
Lenders; and
WHEREAS, the Guarantor is the owner of all the issued and
outstanding capital stock of the Borrower, and it is to the advantage of
Guarantor that the Lenders make the Extensions of Credit to the Borrower;
NOW, THEREFORE, in consideration of the premises and to induce
the Administrative Agent, the Other Representatives and the Lenders to enter
into the Credit Agreement and to induce the Lenders to make their respective
Extensions of Credit to the Borrower under the Credit Agreement, the Guarantor
hereby agrees with the Administrative Agent, for the ratable benefit of the
Lenders, as follows:
1. Defined Terms. (a) Unless otherwise defined herein,
capitalized terms defined in the Credit Agreement are used herein as defined
therein. The following terms shall have the following meanings:
"Guarantee": this Guarantee, as the same may be amended,
supplemented, waived or otherwise modified from time to time.
"Obligations": the collective reference to the unpaid
principal of and interest on (including, without limitation, interest
accruing after the maturity of the Loans and Reimbursement Obligations
and interest accruing after the filing of any petition in bankruptcy,
or the commencement of any insolvency, reorganization or like
proceeding, relating to the Borrower, whether or not a claim for
post-filing or post-petition interest is allowed in such proceeding)
the Loans, the Reimbursement Obligations and all other obligations and
liabilities of the Borrower to the Administrative Agent, the Other
Representatives and the Lenders, whether direct or indirect, absolute
or contingent, due or to become due, or now existing or hereafter
incurred, which may arise under, out of, or in connection with, the
Credit Agreement, the Notes, the Letters of Credit, the other Loan
Documents, any Interest Rate Agreement entered into with any Lender,
any Guarantee Obligations of the Borrower referred to in Section 8.4(b)
of the Credit Agreement as to which any Lender is a beneficiary, and
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, amounts payable in connection with a
termination of any transaction entered into pursuant to
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an Interest Rate Agreement entered into with any Lender, amounts
payable to any Lender in connection with any such Guarantee Obligation,
fees, indemnities, costs, expenses or otherwise (including, without
limitation, all reasonable fees and disbursements of counsel to the
Administrative Agent, any Other Representative or any Lender that are
required to be paid by the Borrower pursuant to the terms of the Credit
Agreement or any other Loan Document).
(b) The words "hereof," "herein" and "hereunder" and words of
similar import when used in this Guarantee shall refer to this Guarantee as a
whole and not to any particular provision of this Guarantee, and section and
paragraph references are to this Guarantee unless otherwise specified.
(c) The meanings given to terms defined herein shall be
equally applicable to both the singular and plural forms of such terms.
2. Guarantee. (a) The Guarantor hereby unconditionally and
irrevocably guarantees to the Administrative Agent, for the ratable benefit of
the Lenders and their respective successors, indorsees, transferees and assigns,
the prompt and complete payment and performance by the Borrower when due and
payable (whether at the stated maturity, by acceleration or otherwise) of the
Obligations.
(b) The Guarantor further agrees to pay any and all reasonable
expenses (including, without limitation, all reasonable fees and disbursements
of counsel) which may be paid or incurred by the Administrative Agent, any Other
Representative or any Lender in enforcing, or obtaining advice of counsel in
respect of, any rights with respect to, or collecting, any or all of the
Obligations and/or enforcing any rights with respect to, or collecting against,
the Guarantor under this Guarantee. This Guarantee shall remain in full force
and effect until the payment in full of the Notes, the Reimbursement Obligations
and the other Obligations then due and owing, the termination of the Commitments
and the expiration, termination or return to the Issuing Lender of the Letters
of Credit, notwithstanding that from time to time prior thereto the Borrower may
be free from any Obligations.
(c) No payment or payments made by the Borrower or any other
Person or received or collected by the Administrative Agent, any Other
Representative or any Lender from the Borrower or any other Person by virtue of
any action or proceeding or any set-off or appropriation or application, at any
time or from time to time, in reduction of or in payment of the Obligations
shall be deemed to modify, reduce, release or otherwise affect the liability of
the Guarantor hereunder which shall, notwithstanding any such payment or
payments other than payments made by the Guarantor in respect of the Obligations
or payments received or collected from the Guarantor in respect of the
Obligations pursuant to this Guarantee, remain liable for the Obligations until
payment in full of the Notes, the Reimbursement Obligations and the other
Obligations then due and owing, the termination of the Commitments and the
expiration, termination or return to the Issuing Lender of the Letters of
Credit.
(d) The Guarantor agrees that whenever, at any time, or from
time to time, it shall make any payment to the Administrative Agent, any Other
Representative or any Lender on account of its liability hereunder, it will
notify the Administrative Agent, such Other Representative and such Lender in
writing that such payment is made under this Guarantee for such purpose.
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3. Right of Set-off. Upon the occurrence and during the
continuance of any Event of Default under Section 9(a) of the Credit Agreement,
the Administrative Agent and each Lender is hereby irrevocably authorized at any
time and from time to time without notice to the Guarantor, any such notice
being expressly waived by the Guarantor to the extent permitted by applicable
law, to set off and appropriate and apply any and all deposits (general or
special, time or demand, provisional or final), in any currency, and any other
credits, indebtedness or claims, in any currency, in each case whether direct or
indirect, absolute or contingent, matured or unmatured, at any time held or
owing by the Administrative Agent or such Lender to or for the credit or the
account of the Guarantor, or any part thereof in such amounts as the
Administrative Agent or such Lender may elect, against or on account of the
obligations and liabilities of the Guarantor to the Administrative Agent or such
Lender hereunder with respect to any amount then due and payable under Section
9(a) of the Credit Agreement, whether or not the Administrative Agent or such
Lender has made any demand for payment and although such obligations and
liabilities may be contingent or unmatured. The Administrative Agent and each
Lender, as the case may be, shall notify the Guarantor promptly of any such
set-off and the application made by the Administrative Agent or such Lender, as
the case may be, of the proceeds thereof; provided that the failure to give such
notice shall not affect the validity of such set-off and application. The rights
of the Administrative Agent and each Lender under this paragraph are in addition
to other rights and remedies (including, without limitation, other rights of
set-off) which the Administrative Agent or such Lender may have.
4. No Subrogation. Notwithstanding anything to the contrary in
this Guarantee, the Guarantor hereby irrevocably waives all rights which may
have arisen in connection with this Guarantee to be subrogated to any of the
rights (whether contractual, under the Bankruptcy Code, including Section 509
thereof, under common law or otherwise) of the Administrative Agent, any Other
Representative or any Lender against the Borrower or against any collateral
security or guarantee or right of offset held by the Administrative Agent, any
Other Representative or any Lender for the payment of the Obligations. The
Guarantor hereby further irrevocably waives all contractual, common law,
statutory or other rights of reimbursement, contribution, exoneration or
indemnity (or any similar right) from or against the Borrower or any other
Person which may have arisen in connection with this Guarantee. So long as the
Obligations remain outstanding, if any amount shall be paid by or on behalf of
the Borrower to the Guarantor on account of any of the rights waived in this
paragraph, such amount shall be held by the Guarantor in trust for the
Administrative Agent and each Lender, segregated from other funds of the
Guarantor, and shall, forthwith upon receipt by the Guarantor, be turned over to
the Administrative Agent in the exact form received by the Guarantor (duly
indorsed by the Guarantor to the Administrative Agent, if required), to be held
as collateral security for the Obligations (whether matured or unmatured),
and/or then or at any time thereafter may be applied against the Obligations
then due and owing in such order as the Administrative Agent may determine. The
provisions of this paragraph shall survive the termination of this Guarantee,
the payment in full of the Notes, the Reimbursement Obligations and the other
Obligations, the termination of the Commitments and the expiration, termination
or return of the Letters of Credit.
5. Amendments, etc. with respect to the Obligations; Waiver of
Rights. The Guarantor shall remain obligated hereunder notwithstanding that,
without any reservation of rights against the Guarantor, and without notice to
or further assent by the Guarantor, any demand for payment of any of the
Obligations made by the Administrative Agent or any Lender may be rescinded by
the Administrative Agent or such Lender, and any of the Obligations continued,
and the Obligations, or the liability of any other party upon or for any part
thereof, or any collateral security or guarantee therefor or right of offset
with respect thereto, may, from time to time, in whole or in part, be renewed,
extended, amended, modified, accelerated, compromised, waived, surrendered or
released by the Administrative Agent or any Lender, and the Credit Agreement,
any Notes, and the other Loan Documents (other than this Agreement) and any
other documents executed and delivered in connection therewith may be amended,
modified, supplemented or terminated, in whole or in part, as the Administrative
Agent (or the Required Lenders, as the case may be) may deem advisable from time
to time, and any collateral security, guarantee or right of offset at any time
held by the Administrative Agent or any Lender for the payment of the
Obligations may be sold,
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exchanged, waived, surrendered or released. Neither the Administrative Agent nor
any Lender shall have any obligation to protect, secure, perfect or insure any
Lien at any time held by it as security for the Obligations or for this
Guarantee or any property subject thereto. When making any demand hereunder
against the Guarantor, the Administrative Agent or any Lender may, but shall be
under no obligation to, make a similar demand on the Borrower or any other
guarantor, and any failure by the Administrative Agent or any Lender to make any
such demand or to collect any payments from the Borrower or any such other
guarantor or any release of the Borrower or such other guarantor shall not
relieve the Guarantor of its obligations or liabilities hereunder, and shall not
impair or affect the rights and remedies, express or implied, or as a matter of
law, of the Administrative Agent, any Other Representative or any Lender against
the Guarantor. For the purposes hereof "demand" shall include the commencement
and continuance of any legal proceedings.
6. Guarantee Absolute and Unconditional. The Guarantor waives
any and all notice of the creation, renewal, extension or accrual of any of the
Obligations and notice of or proof of reliance by the Administrative Agent, any
Other Representative or any Lender upon this Guarantee or acceptance of this
Guarantee; the Obligations, and any of them, shall conclusively be deemed to
have been created, contracted or incurred, or renewed, extended, amended or
waived, in reliance upon this Guarantee; and all dealings between the Borrower
or the Guarantor, on the one hand, and the Administrative Agent, the Other
Representatives and the Lenders, on the other, shall likewise be conclusively
presumed to have been had or consummated in reliance upon this Guarantee. The
Guarantor waives diligence, presentment, protest, demand for payment and notice
of default or nonpayment to or upon the Borrower or the Guarantor with respect
to the Obligations. To the extent permitted by law, this Guarantee shall be
construed as a continuing, absolute and unconditional guarantee of payment
without regard to (a) the validity or enforceability of the Credit Agreement,
any Note, or any other Loan Document, any of the Obligations or any other
collateral security therefor or guarantee or right of offset with respect
thereto at any time or from time to time held by the Administrative Agent, any
Other Representative or any Lender, (b) any defense, set-off or counterclaim
(other than a defense of payment or performance) which may at any time be
available to or be asserted by the Borrower against the Administrative Agent,
any Other Representative or any Lender, or (c) any other circumstance whatsoever
(with or without notice to or knowledge of the Borrower or the Guarantor) (other
than payment in full of the Obligations) which constitutes, or might be
construed to constitute, an equitable or legal discharge of the Borrower for the
Obligations, or of the Guarantor under this Guarantee, in bankruptcy or in any
other instance. When pursuing its rights and remedies hereunder against the
Guarantor, the Administrative Agent, any Other Representative and any Lender
may, but shall be under no obligation to, pursue such rights and remedies as it
may have against the Borrower or any other Person or against any collateral
security or guarantee for the Obligations or any right of offset with respect
thereto, and any failure by the Administrative Agent, any Other Representative
or any Lender to pursue such other rights or remedies or to collect any payments
from the Borrower or any such other Person or to realize upon any such
collateral security or guarantee or to exercise any such right of offset, or any
release of the Borrower or any such other Person or of any such collateral
security, guarantee or right of offset, shall not relieve the Guarantor of any
liability hereunder, and shall not impair or affect the rights and remedies,
whether express, implied or available as a matter of law, of the Administrative
Agent, any Other Representative or any Lender against the Guarantor. This
Guarantee shall remain in full force and effect and be binding in accordance
with and to the extent of its terms upon the Guarantor and its successors and
assigns thereof, and shall inure to the benefit of the Administrative Agent, the
Other Representatives and the Lenders, and their respective successors,
indorsees, transferees and assigns, until the payment in full of the Notes, the
Reimbursement Obligations, the other Obligations then due and owing and the
obligations of the Guarantor under this Guarantee then due and owing, the
termination of the Commitments and the expiration, termination or return to the
Issuing Lender of the Letters of Credit, notwithstanding that from time to time
during the term of the Credit Agreement the Borrower may be free from any
Obligations, upon the occurrence of all of which this Guarantee shall, subject
to paragraph 7 hereof, terminate.
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7. Reinstatement. This Guarantee shall continue to be
effective, or be reinstated, as the case may be, if at any time payment, or any
part thereof, of any of the Obligations is rescinded or must otherwise be
restored or returned by the Administrative Agent, any Other Representative or
any Lender upon the insolvency, bankruptcy, dissolution, liquidation or
reorganization of the Borrower or upon or as a result of the appointment of a
receiver, intervenor or conservator of, or trustee or similar officer for, the
Borrower or any substantial part of its property, or otherwise, all as though
such payments had not been made.
8. Payments. The Guarantor hereby agrees that the Obligations
will be paid to the Administrative Agent without set-off or counterclaim in
Dollars at the office of the Administrative Agent set forth in Section 11.2 of
the Credit Agreement.
9. Representations and Warranties. The Guarantor
represents and warrants to the Administrative Agent, the Other Representatives
and the Lenders that:
(a) the Guarantor is a corporation duly incorporated, validly
existing and in good standing under the laws of the jurisdiction of its
incorporation and has the corporate power and authority to own and
operate its property, to lease the property it operates and to conduct
the business in which it is currently engaged;
(b) the Guarantor has the corporate power and authority to
make, deliver and perform its obligations under this Guarantee and has
taken all necessary corporate action to authorize its execution,
delivery and performance of this Guarantee and the other Loan Documents
to which it is a party;
(c) each of this Guarantee and the other Loan Documents to
which it is a party has been duly executed and delivered on behalf of
the Guarantor and constitutes a legal, valid and binding obligation of
the Guarantor enforceable against the Guarantor in accordance with its
terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium and similar laws
affecting the enforcement of creditors' rights generally and by general
equitable principles (whether enforcement is sought by proceedings in
equity or at law);
(d) the execution, delivery and performance of this Guarantee
and the other Loan Documents to which it is a party will not violate
any Requirement of Law or Contractual Obligation of the Guarantor in
any respect that would reasonably be expected to have a Material
Adverse Effect and will not result in, or require, the creation or
imposition of any Lien on any of the properties or revenues of the
Guarantor pursuant to any such Requirement of Law or Contractual
Obligation (other than pursuant to any Loan Document);
(e) no consent or authorization of, filing with, or other act
by or in respect of, any Governmental Authority or any other Person is
required in connection with the execution, delivery, performance,
validity or enforceability of this Guarantee and the other Loan
Documents to which the Guarantor is a party;
(f) no litigation, investigation or proceeding of or before
any arbitrator or Governmental Authority is pending or, to the
knowledge of the Guarantor, threatened by or against the Guarantor or
against any of its properties or revenues (i) with respect to this
Guarantee and the other Loan Documents to which it is a party or any of
the transactions contemplated hereby or thereby or (ii) which would
reasonably be expected to have a Material Adverse Effect;
(g) the Guarantor has good record and marketable title in fee
simple to, or a valid leasehold interest in, all its material real
property, and good title to, or a valid leasehold interest in, all its
other
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material property, and none of such property is subject to any Lien
except for Liens of any of the types referred to in Section 8.3 of the
Credit Agreement; and
(h) the Guarantor has filed or caused to be filed all United
States federal income tax returns and all other material tax returns
which, to the knowledge of the Guarantor, are required to be filed and
has paid (a) all taxes shown to be due and payable on said returns or
(b) all taxes shown to be due and payable on any assessments of which
it has received notice made against it or any of its property and all
other taxes, fees or other charges imposed on it or any of its property
by any Governmental Authority (other than any (i) taxes, fees or other
charges with respect to which the failure to pay, in the aggregate,
would not have a Material Adverse Effect, or (ii) taxes, fees or other
charges the amount or validity of which are currently being contested
in good faith by appropriate proceedings and with respect to which
reserves in conformity with GAAP have been provided on the books of the
Guarantor or any of its Subsidiaries); and no tax Lien has been filed,
and, to the knowledge of the Guarantor, no claim is being asserted,
with respect to any such tax, fee or other charge.
(i) Since December 31, 1999 there has been no development or
event which has had or would be reasonably expected to have a Material
Adverse Effect.
The Guarantor agrees that the foregoing representations and
warranties shall be deemed to have been made by the Guarantor on the date of
each Extension of Credit to the Borrower under the Credit Agreement as though
made hereunder on and as of such date.
10. Covenants. The Guarantor hereby covenants and agrees with
the Administrative Agent, the Other Representatives and the Lenders that, from
and after the date of this Guarantee until payment in full of the Notes, the
Reimbursement Obligations and the other Obligations then due and owing, the
termination of the Commitments and the expiration, termination or return to the
Issuing Lender of the Letters of Credit,
(a) the Guarantor shall not, and shall not permit the
Borrower or any of its other Subsidiaries to, take
any action or fail to take any action, as the case
may be, if such action or failure would result in a
violation of any of the covenants of the Borrower
contained in Sections 7 and 8 of the Credit
Agreement,
(b) the Guarantor shall not conduct, transact or
otherwise engage in, or commit to transact, conduct
or otherwise engage in, any business or operations
other than (i) transactions contemplated by the Loan
Documents and the provision of administrative, legal,
accounting and management services to any of the
Borrower and its Subsidiaries, (ii) the ownership of
the capital stock of the Borrower, and the exercise
of rights and performance of obligations in
connection therewith, (iii) the entry into, and
exercise of rights and performance of obligations in
respect of, (A) this Guarantee and the other Loan
Documents to which the Guarantor is a party, and any
other agreement to which it is a party on the date
hereof, in each case as amended, supplemented, waived
or otherwise modified from time to time, and any
refinancings, refundings, renewals or extensions
thereof, (B) contracts and agreements with officers,
directors and employees of the Guarantor or a
Subsidiary thereof relating to their employment or
directorships, (C) insurance policies and related
contracts and agreements, (D) equity subscription
agreements, registration rights agreements, voting
and other stockholder agreements, engagement letters,
underwriting agreements and other agreements in
respect of its equity securities or any offering,
issuance or sale thereof, including but not limited
to in respect of Management Subscription Agreements
and (E) the Holding Subordinated Note Guarantee, (iv)
the offering, issuance, sale and repurchase or
redemption of, and
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dividends or distributions on, its equity securities,
(v) the filing of registration statements, and
compliance with applicable reporting and other
obligations, under federal, state or other securities
laws, (vi) the listing of its equity securities and
compliance with applicable reporting and other
obligations in connection therewith, (vii) the
retention of (and the entry into, and exercise of
rights and performance of obligations in respect of,
contracts and agreements with) transfer agents,
private placement agents, underwriters, counsel,
accountants and other advisors and consultants,
(viii) the performance of obligations under and
compliance with its certificate of incorporation and
by-laws, or any applicable law, ordinance,
regulation, rule, order, judgment, decree or permit,
including, without limitation, as a result of or in
connection with the activities of the Borrower and
its Subsidiaries, (ix) the incurrence and payment of
its operating and business expenses and any taxes for
which it may be liable, (x) making loans to, or other
Investments in, or incurrence of Indebtedness to, its
Subsidiaries, and (xi) other activities incidental or
related to the foregoing,
(c) The Guarantor shall not own, lease, manage or
otherwise operate any properties or assets other than
in connection with the activities described in clause
(b) above, or incur, create, assume or suffer to
exist any Indebtedness or Guarantee Obligations or
other liabilities or financial obligations other than
as may be incurred, created or assumed or exist in
connection with the activities described in clause
(b) above (including but not limited to Guarantee
Obligations in connection with (i) Management
Subscription Agreements and (ii) the Holding
Subordinated Note Guarantee),
(d) the Guarantor shall (i) preserve, renew and keep in
full force and effect its corporate existence and
(ii) comply in all material respects with all
Contractual Obligations and Requirements of Law
applicable to it, except to the extent that the
failure to comply therewith would not reasonably be
expected, in the aggregate, to have a Material
Adverse Effect and
(e) the Guarantor shall not amend, modify or change, or
consent to any amendment, modification or change to
any material term of the Holding Subordinated Note
Guarantee (including, without limitation, the
subordination provisions thereof, covenants, stated
maturity, principal amount or rate of payment of
interest) in a manner that would have an adverse
effect on the interests of the Administrative Agent
or the Lenders hereunder or under any Loan Document
without the prior consent of the Required Lenders.
11. Further Assurances. The Guarantor hereby covenants and
agrees with the Administrative Agent, the Other Representatives and the Lenders
that, from and after the date of this Guarantee until payment in full of the
Notes, the Reimbursement Obligations and the other Obligations then due and
owing, the termination of the Commitments and the expiration, termination or
return to the Issuing Lender of the Letters of Credit, at any time and from time
to time, upon the written request of the Administrative Agent, and at the sole
expense of the Guarantor, the Guarantor will promptly and duly execute and
deliver such further instruments and documents and take such further actions as
the Administrative Agent may reasonably request for the purposes of obtaining or
preserving the full benefits of this Guarantee and of the rights and powers
herein granted.
12. Authority of Administrative Agent. The Guarantor
acknowledges that the rights and responsibilities of the Administrative Agent
under this Guarantee with respect to any action taken by the Administrative
Agent or the exercise or non-exercise by the Administrative Agent of any option,
right, request, judgment or other right or remedy provided for herein or
resulting or arising out of this Guarantee shall, as among
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the Administrative Agent, the Other Representatives and the Lenders, be governed
by the Credit Agreement and by such other agreements with respect thereto as may
exist from time to time among them, but, as between the Administrative Agent and
the Guarantor, the Administrative Agent shall be conclusively presumed to be
acting as agent for the Lenders with full and valid authority so to act or
refrain from acting, and the Guarantor shall not be under any obligation to make
any inquiry respecting such authority.
13. Notices. All notices, requests and demands under this
Guarantee shall be given in accordance with Section 11.2 of the Credit Agreement
and, in the case of the Guarantor, its address or transmission number for
notices shall be as set forth under its signature below.
The Administrative Agent, each Other Representative, each
Lender and the Guarantor may change its address and transmission numbers for
notices by notice in the manner provided in Section 11.2 of the Credit
Agreement.
14. Counterparts. This Guarantee may be executed on any number
of separate counterparts, and all of said counterparts taken together shall be
deemed to constitute one and the same instrument. A set of the counterparts of
this Guarantee shall be lodged with the Administrative Agent.
15. Severability. Any provision of this Guarantee which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
16. Integration. This Guarantee represents the entire
agreement of the Guarantor and the Administrative Agent with respect to the
subject matter hereof and there are no promises or representations by the
Guarantor, the Administrative Agent, any Other Representative or any Lender
relative to the subject matter hereof not reflected or referred to herein.
17. Amendments in Writing; No Waiver; Cumulative Remedies. (a)
None of the terms or provisions of this Guarantee may be waived, amended,
supplemented or otherwise modified except by a written instrument executed by
the Guarantor and the Administrative Agent in accordance with Section 11.1 of
the Credit Agreement.
(b) Neither the Administrative Agent, any Other Representative
nor any Lender shall by any act (except by a written instrument pursuant to
paragraph 17(a) hereof), delay, indulgence, omission or otherwise be deemed to
have waived any right or remedy hereunder or to have acquiesced in any Default
or Event of Default or in any breach of any of the terms and conditions hereof.
No failure to exercise, nor any delay in exercising, on the part of the
Administrative Agent, any Other Representative or any Lender, any right, power
or privilege hereunder shall operate as a waiver thereof. No single or partial
exercise of any right, power or privilege hereunder shall preclude any other or
further exercise thereof or the exercise of any other right, power or privilege.
A waiver by the Administrative Agent, any Other Representative or any Lender of
any right or remedy hereunder on any one occasion shall not be construed as a
bar to any right or remedy which the Administrative Agent, such Other
Representative or such Lender would otherwise have on any future occasion.
(c) The rights and remedies herein provided are cumulative,
may be exercised singly or concurrently and are not exclusive of any other
rights or remedies provided by law.
18. Section Headings. The section headings used in this
Guarantee are for convenience of reference only and are not to affect the
construction hereof or be taken into consideration in the interpretation hereof.
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19. Submission To Jurisdiction; Waivers. Each party hereto
hereby irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or
proceeding relating to this Guarantee and the other Loan Documents to
which it is a party, or for recognition and enforcement of any
judgement in respect thereof, to the non-exclusive general jurisdiction
of the Courts of the State of New York, the courts of the United States
of America for the Southern District of New York, and appellate courts
from any thereof;
(b) consents that any such action or proceeding may be brought
in such courts and waives any objection that it may now or hereafter
have to the venue of any such action or proceeding in any such court or
that such action or proceeding was brought in an inconvenient court and
agrees not to plead or claim the same;
(c) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or
certified mail (or any substantially similar form of mail), postage
prepaid, to the Guarantor, the applicable Lender, the applicable Other
Representative or the Administrative Agent, as the case may be, at the
address referred to in paragraph 13 or at such other address of which
the Administrative Agent shall have been notified pursuant thereto;
(d) agrees that nothing herein shall affect the right to
effect service of process in any other manner permitted by law or shall
limit the right to xxx in any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law, any
right it may have to claim or recover in any legal action or proceeding
referred to in this paragraph any punitive damages.
20. WAIVERS OF JURY TRIAL. THE GUARANTOR HEREBY IRREVOCABLY
AND UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING
RELATING TO THIS AGREEMENT OR THE NOTES OR ANY OTHER LOAN DOCUMENT AND FOR ANY
COUNTERCLAIM THEREIN.
21. Acknowledgements. The Guarantor hereby acknowledges that:
(a) it has been advised by counsel in the negotiation,
execution and delivery of this Guarantee and the other Loan Documents
to which it is a party;
(b) none of the Administrative Agent, any Co-Agent nor any
Lender has any fiduciary relationship with or duty to the Guarantor
arising out of or in connection with this Guarantee or any of the other
Loan Documents, and the relationship between the Administrative Agent,
the Other Representatives and Lenders, on one hand, and the Borrower
and the Guarantor, on the other hand, in connection herewith or
therewith is solely that of debtor and creditor; and
(c) no joint venture is created hereby or by the other Loan
Documents or otherwise exists by virtue of the transactions
contemplated hereby among the Lenders or among the Borrower, the
Guarantor and the Lenders.
22. Successors and Assigns. This Guarantee shall be binding
upon the respective successors and assigns of the Guarantor, the Administrative
Agent, the Other Representatives and the Lenders, and shall inure
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to the benefit of the Administrative Agent, the Other Representatives and the
Lenders and their respective successors and assigns.
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23. GOVERNING LAW. THIS GUARANTEE SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK
WITHOUT REGARD TO THE PRINCIPLES OF CONFLICT OF LAWS THEREOF.
IN WITNESS WHEREOF, the undersigned has caused this Guarantee
to be duly executed and delivered by its duly authorized officer as of the day
and year first above written.
RACI HOLDING, INC.
By:
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Title:
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Address for Notices:
000 Xxxxxxxxx Xxxxx
X.X. Xxx 000
Xxxxxxx, XX 00000
Attention: Chief Financial Officer
Telecopy: (000) 000-0000
ACKNOWLEDGED AND AGREED AS
OF THE DATE HEREOF BY:
THE CHASE MANHATTAN BANK, as Administrative Agent
By:
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Title:
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