Exhibit 4.23
THIRD SUPPLEMENTAL INDENTURE
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THIRD SUPPLEMENTAL INDENTURE, dated as of January 2, 2002 (this
"Supplemental Indenture"), among RBC Holding, Inc., a Delaware corporation, as
a Subsidiary Guarantor ("RBC"), Remington Arms Company, Inc. (formerly named
RACI Acquisition Corporation, the "Company"), RACI Holding, Inc., as a
Guarantor ("Holding") and U.S. Bank National Association, as Trustee (the
"Trustee"), to the Indenture referred to below.
W I T N E S S E T H:
WHEREAS, the Company, Holding and the Trustee are parties to an
Indenture, dated as of November 30, 1993 (as amended, supplemented, waived or
otherwise modified, the "Indenture"), under which the Company's 9 1/2% Senior
Subordinated Notes Due 2003 (the "Notes") are issued and outstanding;
WHEREAS, RBC is a Subsidiary of the Company, and intends to enter
into a guarantee of the Company's indebtedness under its Credit Agreement;
WHEREAS, Section 1013 of the Indenture provides that any Subsidiary
which becomes liable with respect to any Indebtedness of the Company will
execute and deliver to the Trustee a supplemental indenture providing for a
guarantee of payment of the Securities by such Subsidiary, all as more
particularly described in such Section;
WHEREAS, RBC desires to enter into this Supplemental Indenture in
consideration of, among other things, the contribution to it of capital by the
Company; and
WHEREAS, pursuant to Section 901 of the Indenture, the parties hereto
are authorized to execute and deliver this Supplemental Indenture to amend the
Indenture, without the consent of any Holder;
NOW, THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt of which is hereby acknowledged, RBC,
the Company, Holding and the Trustee mutually covenant and agree for the
benefit of the Holders of the Notes as follows:
ARTICLE ONE
DEFINITIONS
1.1. Defined Terms. Terms used in this Supplemental Indenture that
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are defined herein are used as so defined. Capitalized terms used herein
without definition shall have the meaning ascribed to them in the Indenture.
The words "herein," "hereof"
and "hereby" and other words of similar import used in this Supplemental
Indenture refer to this Supplemental Indenture as a whole and not to any
particular section hereof.
ARTICLE TWO
GUARANTEE
2.1. Guarantee. For value received, RBC, in accordance with this
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Article Two, hereby absolutely, unconditionally and irrevocably guarantees to
the Trustee and the Holders, as if RBC were the principal debtor and not merely
a surety, the punctual payment and performance when due of all Indenture
Obligations (which for purposes of this Guarantee shall also be deemed to
include all commissions, fees, charges, costs and other expenses (including
reasonable legal fees and disbursements of one counsel) arising out of or
incurred by the Trustee or the Holders in connection with the enforcement of
this Guarantee).
2.2. Continuing Guarantee; No Right of Set-Off; Independent
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Obligation.
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(a) This Guarantee shall be a continuing guarantee of the payment
and performance of all Indenture Obligations and shall remain in full force and
effect until the payment in full of all of the Indenture Obligations and shall
apply to and secure any ultimate balance due or remaining unpaid to the Trustee
or the Holders; and this Guarantee shall not be considered as wholly or
partially satisfied by the payment or liquidation at any time or from time to
time of any sum of money for the time being due or remaining unpaid to the
Trustee or the Holders. RBC covenants and agrees to comply with all
obligations, covenants, agreements and provisions applicable to it in the
Indenture including those set forth in Article Eight of the Indenture. Without
limiting the generality of the foregoing, RBC's liability shall extend to all
amounts which constitute part of the Indenture Obligations and would be owed by
the Company under this Indenture and the Securities but for the fact that they
are unenforceable, reduced, limited, impaired, suspended or not allowable due
to the existence of a bankruptcy, reorganization or similar proceeding
involving the Company.
(b) RBC hereby guarantees that the Indenture Obligations will be
paid to the Trustee without set-off or counterclaim or other reduction
whatsoever (whether for taxes, withholding or otherwise) in lawful currency of
the United States of America.
(c) RBC guarantees that the Indenture Obligations shall be paid
strictly in accordance with their terms regardless of any law, regulation or
order now or hereafter in effect in any jurisdiction affecting any of such
terms or the rights of the holders of the Securities.
(d) RBC's liability to pay or perform or cause the performance
of the Indenture Obligations under this Guarantee shall arise forthwith after
demand for
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payment or performance by the Trustee has been given to RBC in the manner
prescribed in Section 106 of the Indenture.
(e) Except as provided herein, the provisions of this Article Two
cover all agreements between the parties hereto relative to this Guarantee and
none of the parties shall be bound by any representation, warranty or promise
made by any Person relative thereto which is not embodied herein; and it is
specifically acknowledged and agreed that this Guarantee has been delivered by
RBC free of any conditions whatsoever and that no representations, warranties
or promises have been made to RBC affecting its liabilities hereunder, and that
the Trustee shall not be bound by any representations, warranties or promises
now or at any time hereafter made by the Company to RBC.
2.3. Guarantee Absolute. The obligations of RBC hereunder are
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independent of the obligations of the Company under the Securities and the
Indenture and a separate action or actions may be brought and prosecuted
against RBC whether or not an action or proceeding is brought against the
Company and whether or not the Company is joined in any such action or
proceeding. The liability of RBC hereunder is irrevocable, absolute and
unconditional and (to the extent permitted by law) the liability and
obligations of RBC hereunder shall not be released, discharged, mitigated,
waived, impaired or affected in whole or in part by:
(a) any defect or lack of validity or enforceability in respect
of any indebtedness or other obligation of the Company or any other Person
under the Indenture or the Securities, or any agreement or instrument relating
to any of the foregoing;
(b) any grants of time, renewals, extensions, indulgences,
releases, discharges or modifications which the Trustee or the Holders may
extend to, or make with, the Company, RBC or any other Person, or any change
in the time, manner or place of payment of, or in any other term of, all or
any of the Indenture Obligations, or any other amendment or waiver of, or any
consent to or departure from, this Indenture or the Securities, including any
increase or decrease in the Indenture Obligations;
(c) the taking of security from the Company, RBC or any other
Person, and the release, discharge or alteration of, or other dealing with,
such security;
(d) the occurrence of any change in the laws, rules, regulations
or ordinances of any jurisdiction by any present or future action of any
governmental authority or court amending, varying, reducing or otherwise
affecting, or purporting to amend, vary, reduce or otherwise affect, any of the
Indenture Obligations and the obligations of RBC hereunder;
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(e) the abstention from taking security from the Company, RBC or
any other Person or from perfecting, continuing to keep perfected or taking
advantage of any security;
(f) any loss, diminution of value or lack of enforceability of
any security received from the Company, RBC or any other Person, and including
any other guarantees received by the Trustee;
(g) any other dealings with the Company, RBC or any other Person,
or with any security;
(h) The Trustee's or the Holders' acceptance of compositions from
the Company or RBC;
(i) the application by the Holders or the Trustee of all monies
at any time and from time to time received from the Company, RBC or any other
Person on account of any indebtedness and liabilities owing by the Company or
RBC to the Trustee or the Holders, in such manner as the Trustee or the Holders
deems best and the changing of such application in whole or in part and at any
time or from time to time, or any manner of application of collateral, or
proceeds thereof, to all or any of the Indenture Obligations, or the manner of
sale of any Collateral;
(j) the release or discharge of the Company or RBC or of any
other guarantor of the Securities or of any Person liable directly as surety or
otherwise by operation of law or otherwise for the Securities, other than an
express release in writing given by the Trustee, on behalf of the Holders, of
the liability and obligations of RBC under the Indenture;
(k) any change in the name, business, capital structure or
governing instrument of the Company or RBC or any refinancing or restructuring
of any of the Indenture Obligations;
(l) the sale of the Company's or RBC's business or any part
thereof;
(m) any merger or consolidation, arrangement or reorganization of
the Company, RBC, any Person resulting from the merger or consolidation of the
Company or RBC with any other Person or any other successor to such Person or
merged or consolidated Person or any other change in the corporate existence,
structure or ownership of the Company or RBC;
(n) the insolvency, bankruptcy, liquidation, winding-up,
dissolution, receivership or distribution of the assets of the Company or its
assets or any resulting discharge of any obligations of the company (whether
voluntary or involuntary) or of RBC or the loss of corporate existence;
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(o) any arrangement or plan of reorganization affecting the
Company or RBC;
(p) any other circumstance (including any statute of limitations)
that might otherwise constitute a defense available to, or discharge of, the
Company or RBC; or
(q) any modification, compromise, settlement or release by the
Trustee, or by operation of law or otherwise, of the Indenture Obligations or
the liability of the Company or any other obligor under the Securities, or of
any collateral, in whole or in part, and any refusal of payment by the Trustee,
in whole or in part, from any other obligor or other guarantor in connection
with any of the Indenture Obligations, whether or not with notice to, or
further assent by, or any reservation of rights against, RBC.
2.4. Right to Demand Full Performance. In the event of any demand for
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payment or performance by the Trustee from RBC hereunder, the Trustee or the
Holders shall have the right to demand its full claim and to receive all
dividends or other payments in respect thereof until the Indenture Obligations
have been paid in full, and RBC shall continue to be liable hereunder for any
balance which may be owing to the Trustee or the Holders by the Company under
the Indenture and the Securities. The retention by the Trustee or the Holders
of any security, prior to the realization by the Trustee or the Holders of its
rights to such security upon foreclosure thereon, shall not, as between the
Trustee and RBC, be considered as a purchase of such security, or as payment,
satisfaction or reduction of the Indenture Obligations due to the Trustee or
the Holders by the Company or any part thereof.
2.5. Waivers. (a) RBC hereby expressly waives (to the extent
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permitted by law) notice of the acceptance of this Guarantee and notice of the
existence, renewal, extension or the non-performance, non-payment, or
non-observance on the part of the Company of any of the terms, covenants,
conditions and provisions of the Indenture or the Securities or any other
notice whatsoever to or upon the Company or RBC with respect to the Indenture
Obligations. RBC hereby acknowledges communication to it of the terms of this
Indenture and the Securities and all of the provisions therein contained and
consents to and approves the same. RBC hereby expressly waives (to the extent
permitted by law) diligence, presentment, protest and demand for payment.
(b) Without prejudice to any of the rights or recourses which the
Trustee or the Holders may have against the Company, RBC hereby expressly
waives (to the extent permitted by law) any right to require the Trustee or the
Holders to:
(i) initiate or exhaust any rights, remedies or recourse
against the Company, RBC or any other Person;
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(ii) value, realize upon, or dispose of any security of the
Company or any other Person held by the Trustee or the Holders; or
(iii) initiate or exhaust any other remedy which the Trustee
or the Holders may have in law or equity;
before requiring or becoming entitled to demand payment from RBC under this
Guarantee.
2.6. RBC Remains Obligated In Event The Company Is No Longer
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Obligated to Discharge Indenture Obligations. It is the express intention of
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the Trustee and RBC that if for any reason the Company has no legal existence,
is or becomes under no legal obligation to discharge the Indenture Obligations
owing to the Trustee or the Holders by the Company or if any of the Indenture
Obligations owing by the Company to the Trustee or the Holders becomes
irrecoverable from the Company by operation of law or for any reason
whatsoever, this Guarantee and the covenants, agreements and obligations of RBC
contained in this Article Two shall nevertheless be binding upon RBC, as
principal debtor, until such time as all such Indenture Obligations have been
paid in full to the Trustee and all Indenture Obligations owing to the Trustee
or the Holders by the Company have been discharged, or such earlier time as
Section 402 of the Indenture shall apply to the Securities and RBC shall be
responsible for the payment thereof to the Trustee or the Holders upon demand.
2.7. Waiver of Rights. RBC agrees (to the extent permitted by law)
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that it hereby waives and will not in any manner whatsoever claim or take the
benefit or advantage of, any rights of reimbursement, exoneration,
contribution, indemnity or subrogation (whether contractual, under Section 509
of Title Eleven of the United States Code, under common law or otherwise) or
any similar rights or "claims" (as such term is defined under Title Eleven of
the United States Code), against the Company or any Subsidiary arising from the
existence of, or performance by, RBC under this Guarantee.
2.8. Guarantee Is In Addition to other Security. This Guarantee shall
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be in addition to and not in substitution for any other guarantees or other
security which the Trustee may now or hereafter hold in respect of the
Indenture Obligations owing to the Trustee or the Holders by the Company and
(except as may be required by law) the Trustee shall be under no obligation to
marshal in favor of RBC any other guarantees or other security or any moneys or
other assets which the Trustee may he entitled to receive or upon which the
Trustee or the Holders may have a claim.
2.9. Release of Security Interests. Without limiting the generality
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of the foregoing and except as otherwise provided in the Indenture, RBC hereby
consents and agrees, to the fullest extent permitted by applicable law, that
the rights of the Trustee hereunder, and the liability of RBC hereunder, shall
not be affected by any and all
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releases for any purpose of any collateral, if any, from the Liens and security
interests created by any collateral document and that this Guarantee shall
continue to be effective or be reinstated, as the case may be, if at any time
any payment of any of the Indenture obligations is rescinded or must otherwise
be returned by the Trustee upon the insolvency, bankruptcy or reorganization of
the Company or otherwise, all as though such payment had not been made.
2.10. No Bar to Further Actions. Except as provided by law, no action
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or proceeding brought or instituted under this Article and this Guarantee and
no recovery or judgment in pursuance thereof shall be a bar or defense to any
further action or proceeding which may be brought under this Guarantee by
reason of any further default or defaults under this Guarantee or in the
payment of any of the Indenture Obligations owing by the Company.
2.11. Failure to Exercise Rights Shall Not operate As a Waiver; No
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Suspension of Remedies. No failure to exercise and no delay in exercising, on
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the part of the Trustee or the Holders, any right, power, privilege or remedy
under this Guarantee shall operate as a waiver thereof, nor shall any single or
partial exercise of any rights, power, privilege or remedy preclude any other
or further exercise thereof, or the exercise of any other rights, powers,
privileges or remedies. The rights and remedies herein provided for are
cumulative and not exclusive of any rights or remedies provided in law or
equity.
Nothing contained in this Article shall limit the right of the
Trustee or the Holders to take any action to accelerate the maturity of the
Securities pursuant to Article Five of the Indenture or to pursue any rights or
remedies hereunder or under applicable law and subject to the rights, if any,
under this Guarantee of the holders, from time to time, of Senior Indebtedness
to receive the cash, property or securities receivable upon the exercise of
such rights or remedies.
2.12. Trustee's Duties; Notice to Trustee. Any provision in this
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Guarantee or in the Indenture allowing the Trustee to request any information,
or to take any action authorized by or on behalf of RBC, shall be permissive
and shall not be obligatory on the Trustee except as the Holders may direct in
accordance with the provisions of the Indenture or where the failure of the
Trustee to request any such information or to take any such action arises from
the Trustee's negligence, bad faith or willful misconduct.
(a) The Trustee shall not be required to inquire into the existence,
powers or capacities of the Company, RBC or the officers, directors or agents
acting or purporting to act on their respective behalfs.
(b) Notwithstanding the provisions of this Article Two or any
provision of the Indenture, the Trustee shall not be charged with knowledge of
the
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existence of any facts which would prohibit the making of any payment to or by
the Trustee under the Guarantee in respect of the Securities, unless and until
the Trustee shall have received written notice thereof from RBC, and, prior to
the receipt of any such written notice, the Trustee, subject to the provisions
of section 601 of the Indenture, shall be entitled in all respects to assume
that no such facts exist; provided, however, that if a Responsible Officer of
the Trustee shall not have received any such notice from RBC at least two
Business Days prior to the date upon which by the terms hereof any money may
become payable for any purpose (including, without limitation, the payment of
the principal of, or premium, if any, or interest on, any Security), then,
anything herein contained to the contrary notwithstanding, the Trustee shall
have full power and authority to receive such money and to apply the same to
the purpose for which such money was received and shall not be affected by any
such notice to the contrary which may be received by it less than two Business
Days prior to such date; nor shall the Trustee be charged with knowledge of the
curing of any such default or the elimination of the act or condition
preventing any such payment unless and until the Responsible Officer of the
Trustee shall have received an Officers' Certificate to such effect.
(c) In the case that at any time any Paying Agent other than the
Trustee shall have been appointed by the Company and be then acting hereunder,
the term "Trustee" as used in this Guarantee shall in such case (unless the
context otherwise requires) be construed as extending to and including such
Paying Agent within its meaning as fully for all intents and purposes as if
such Paying Agent were named in this Guarantee in addition to or in place of
the Trustee; provided, however, that this Article shall not apply to the
Company or any Affiliate of the Company if the Company or such Affiliate acts
as Paying Agent.
2.13. Successors and Assigns. All terms, agreements and conditions
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of this Guarantee shall extend to and by binding upon RBC and its successors
and permitted assigns and shall enure to the benefit of and may be enforced by
the Trustee and its successors and assigns; provided, however, that RBC may not
assign any of its rights or obligations hereunder other than in accordance with
Article Eight of the Indenture.
2.14. Release of Guarantee. (a) Concurrently with the payment in full
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of all of the Indenture Obligations, then RBC shall be released from and
relieved of its obligations under this Guarantee. Upon the delivery by the
Company to the Trustee of an Officers' Certificate and, if reasonably requested
by the Trustee, an Opinion of Counsel to the effect that the transaction giving
rise to the release of this Guarantee was made by the Company in accordance
with the provisions of this Indenture and the Securities, the Trustee shall
execute any documents reasonably required in order to evidence the release of
RBC from its obligations under this Guarantee. If any of the Indenture
Obligations are revived and reinstated after the termination of this Guarantee,
then all of the obligations of RBC under this Guarantee shall be revived and
reinstated as if this Guarantee had not been terminated until such time as the
Indenture Obligations are paid in full, and RBC
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shall enter into an amendment to this Guarantee, reasonably satisfactory to the
Trustee, evidencing such revival and reinstatement.
(b) This Guarantee shall be automatically and unconditionally
released and discharged upon (i) any sale, exchange or transfer, to any Person
not an Affiliate of the Company, of all of the Capital Stock held by the
Company or any Subsidiary in, or all or substantially all the assets of, such
Subsidiary, which is in compliance with this Indenture or (ii) the release by
the holders of the Indebtedness of the Company described in Section 1013(a)
of the Indenture of their guarantee by such Subsidiary (including any deemed
release upon payment in full of all obligations under such Indebtedness), which
release occurs at a time when (A) no other Indebtedness of the Company remains
guaranteed by such subsidiary (other than pursuant to Permitted Guarantees), as
the case may be, or (B) the holders of all such other Indebtedness which is
guaranteed by such Subsidiary (other than pursuant to Permitted Guarantees)
also release their guarantee by such Subsidiary (including any deemed release
upon payment in full of all obligations under such Indebtedness).
2.15. Execution of Guarantee. To evidence the Guarantee, RBC hereby
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agrees to execute a guarantee substantially in the form set forth in
Section 205, to be endorsed on each Security authenticated and delivered by the
Trustee and that the Indenture shall be executed on behalf of RBC by its
Chairman of the Board, its President or one of its Vice Presidents, under its
corporate seal reproduced thereon attested by its Secretary or one of its
Assistant Secretaries. The signature of any of these officers on the Securities
may be manual or facsimile.
If an officer whose signature is on this Indenture no longer holds
that office at the time the Trustee authenticates a Security on which the
Guarantee is so endorsed, such Guarantee shall be valid nevertheless.
2.16. Guarantee Subordinate to Senior Guarantor Indebtedness. RBC
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covenants and agrees, and each Holder of a Security, by his acceptance thereof,
likewise covenants and agrees, that, to the extent and in the manner
hereinafter set forth in this Article, the Guarantee is hereby expressly made
subordinate and subject in right of payment as provided in this Section to the
prior payment in full of all Senior Guarantor Indebtedness in cash or Cash
Equivalents or in any other form acceptable to the requisite holders of Senior
Guarantor Indebtedness; provided, however, that the Indebtedness represented by
this Guarantee in all respects shall rank equally with, or prior to, all
existing and future Indebtedness of RBC that is expressly subordinated in right
of payment to Senior Guarantor Indebtedness.
This Article Two shall constitute a continuing offer to all Persons
who, in reliance upon such provisions, become holders of, or continue to hold,
Senior Guarantor Indebtedness; and such provisions are made for the benefit of
the holders of Senior
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Guarantor Indebtedness; and such holders are made obligees hereunder and they
or each of them may enforce such provisions.
2.17. Payment Over of Proceeds Upon Dissolution of RBC, etc. In the
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event of (1) any insolvency or bankruptcy case or proceeding, or any
receivership, liquidation, reorganization or other similar case or proceeding
in connection therewith, relative to RBC or to its creditors, as such, or to
its assets, or (2) any liquidation, dissolution or other winding up of RBC,
whether voluntary or involuntary and whether or not involving insolvency or
bankruptcy, or (3) any assignment for the benefit of creditors or any other
marshaling of assets or liabilities of RBC, then and in any such event:
(a) the holders of Senior Guarantor Indebtedness shall be entitled
to receive payment in full in cash or Cash Equivalents or in any other form
acceptable to the requisite holders of Senior Guarantor Indebtedness, or
provision acceptable to the requisite holders of Senior Guarantor Indebtedness
made for such payment, of all amounts due on or in respect of all Senior
Guarantor Indebtedness, before the Holders of the Securities are entitled to
receive any payment or distribution of any kind or character (excluding
Permitted Guarantor Junior Securities) on account of the principal of, or
premium, if any, or interest on the Securities or on account of the purchase,
redemption, defeasance or other acquisition of or in respect of the Securities
(including any payment or other distribution which may be received from the
holders of Subordinated Indebtedness as a result of any payment on such
Subordinated Indebtedness); and
(b) any payment or distribution of assets of RBC of any kind or
character, whether in cash, property or securities (excluding Permitted
Guarantor Junior Securities), by set-off or otherwise, to which the Holders or
the Trustee would be entitled but for the provisions of this Article shall be
paid by the liquidating trustee or agent or other Person making such payment or
distribution, whether a trustee in bankruptcy, a receiver or liquidating
trustee or otherwise, directly to the holders of Senior Guarantor Indebtedness
or their representative or representatives or to the trustee or trustees under
any indenture under which any instruments evidencing any of such Senior
Guarantor Indebtedness may have been issued, ratably according to the aggregate
amounts remaining unpaid on account of the Senior Guarantor Indebtedness held
or represented by each, to the extent necessary to make payment in full in cash
or Cash Equivalents or in any other form acceptable to the requisite holders of
Senior Guarantor Indebtedness, of all Senior Guarantor Indebtedness remaining
unpaid, after giving effect to any concurrent payment or distribution to the
holders of such Senior Guarantor Indebtedness; and
(c) in the event that, notwithstanding the foregoing provisions of
this Section, the Trustee or the Holder of any Security shall have received any
payment or distribution of assets of RBC of any kind or character, whether in
cash, property or securities, in respect of principal of, or premium, if any,
and interest on the Securities or on account of the purchase, redemption,
defeasance or other acquisition of or in respect
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of the Securities before all Senior Guarantor Indebtedness is paid in full,
then and in such event such payment or distribution (excluding Permitted
Guarantor Junior Securities)(including any payment or other distribution which
may be received from the holders of Indebtedness expressly subordinated in
right of payment to the Guarantee as a result of any payment on such
subordinated Indebtedness) shall be paid over or delivered forthwith to the
trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee,
agent or other person making payment or distribution of assets of RBC for
application to the payment of all Senior Guarantor Indebtedness remaining
unpaid, to the extent necessary to pay all Senior Guarantor Indebtedness in
full in cash or Cash Equivalents or in any other form acceptable to the
requisite holders of Senior Guarantor Indebtedness after giving effect to any
concurrent payment or distribution to or for the holders of Senior Guarantor
Indebtedness and until so paid shall be held in trust for the benefit of the
holders of Senior Guarantor Indebtedness.
The consolidation of RBC with, or the merger of RBC with or into,
another Person or the liquidation or dissolution of RBC following the sale,
assignment, conveyance, transfer, lease or other disposal of all or
substantially all of its properties or assets to another Person upon the terms
and conditions set forth in Article Eight of the Indenture shall not be deemed
a dissolution, winding up, liquidation, reorganization, assignment for the
benefit of creditors or marshaling of assets and liabilities of RBC for the
purposes of this Section if the Person formed by such consolidation or the
surviving entity of such merger or the Person which acquires by sale,
assignment, conveyance, transfer, lease or other disposal of all or
substantially all of RBC's properties or assets, as the case may be, shall,
as a part of such consolidation, merger, sale, assignment, conveyance,
transfer, lease or other disposal, comply with the conditions set forth in
Article Eight of the Indenture.
2.18. Default on Senior Guarantor Indebtedness.
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(a) Upon the maturity of any Senior Guarantor Indebtedness by lapse
of time, acceleration or otherwise, all principal thereof and interest thereon
and other amounts due in connection therewith shall first be paid in full in
cash or Cash Equivalents or in any other form acceptable to the requisite
holders of such Senior Guarantor Indebtedness, or such payment acceptable to the
holders of Senior Guarantor Indebtedness duly provided for, before any payment
is made by RBC or any Person acting on behalf of RBC in respect of the
Guarantee.
(b) No payment (excluding payments in the form of Permitted
Guarantor Junior Securities) shall be made by RBC in respect of the Guarantee
during the period in which Section 2.17 shall be applicable, during any
suspension of payments in effect under Section 1203(a) of the Indenture or
during any Payment Blockage Period in effect under Section 1203(b) of the
Indenture.
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(c) In the event that, notwithstanding the foregoing, RBC shall
make any payment to the Trustee or the Holder of any Security pursuant to this
Guarantee prohibited by the foregoing provisions of this Article, then and in
such event such payment shall be paid over and delivered forthwith to the
representatives of Senior Guarantor Indebtedness or as a court of competent
jurisdiction shall direct and until so paid shall be held in trust for the
benefit of the holders of Senior Guarantor Indebtedness.
2.19. Payment Permitted by RBC if No Default. Nothing contained in
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this Article, in the Indenture or in any of the Securities shall prevent RBC,
at any time except during the pendency of any case, proceeding, dissolution,
liquidation or other winding up, assignment for the benefit of creditors or
other marshaling of assets and liabilities of RBC referred to in Section 2.17
of this Article or under the conditions described in Section 2.18 of this
Article, from making payments at any time of principal of, premium, if any, or
interest on the Securities in respect of the Guarantee.
2.20. Subrogation to Rights of Holders of Senior Guarantor
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Indebtedness. Subject to the payment in full of all Senior Guarantor
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Indebtedness in cash or Cash Equivalents or in any other form acceptable to the
requisite holders of Senior Guarantor Indebtedness, the Holders of the
Securities shall be subrogated to the rights of the holders of such Senior
Guarantor Indebtedness to receive payments and distributions of cash, property
and securities applicable to Senior Guarantor Indebtedness until the principal
of, premium, if any, and interest on the Securities shall be paid in full. For
purposes of such subrogation, no payments or distributions to the holders of
Senior Guarantor Indebtedness of any cash, property or securities to which the
Holders of the Securities or the Trustee would be entitled except for the
provisions of this Article, and no payments over pursuant to the provisions of
this Article to the holders of Senior Guarantor Indebtedness by Holders of the
Securities or the Trustee, shall, as among RBC, its creditors other than holders
of Senior Guarantor Indebtedness, and the Holders of the Securities, be deemed
to be a payment or distribution by RBC to or on account of the Senior Guarantor
Indebtedness.
2.21. Provisions Solely to Define Relative Rights. The provisions of
-------------------------------------------
Sections 2.16 through 2.29 of this Guarantee are intended solely for the
purpose of defining the relative rights of the holders of the Guarantee on the
one hand and the holders of Senior Guarantor Indebtedness on the other hand.
Nothing contained in this Guarantee or elsewhere in the Indenture or in the
Securities is intended to or shall (a) impair, as among RBC, its creditors
other than holders of Senior Guarantor Indebtedness and the Holders of the
Securities, the obligation of RBC, which is absolute and unconditional, to pay
to the holders of the Guarantee the principal of, or premium, if any, and
interest on, the Securities as and when the same shall become due and payable
in accordance with their terms; or (b) affect the relative rights against RBC
of the Holders of the Securities and creditors of RBC other than the holders of
Senior Guarantor Indebtedness; or (c) prevent the Trustee or the Holder of any
Security from exercising all
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remedies otherwise permitted by applicable law upon default under the
Indenture, subject to the rights, if any, under this Article of the holders of
Senior Guarantor Indebtedness (1) in any case, proceeding, dissolution,
liquidation or other winding up, assignment for the benefit of creditors or
other marshaling of assets and liabilities of RBC referred to in Section 2.17,
to receive, pursuant to and in accordance with such Section, cash, property and
securities otherwise payable or deliverable to the Trustee or such Holder, or
(2) under the conditions specified in Section 2.18, to prevent any payment
prohibited by such Section or enforce their rights pursuant to Section 2.18(c).
2.22. Trustee to Effectuate Subordination. Each holder of the
-----------------------------------
Guarantee by his acceptance thereof authorizes and directs the Trustee on his
behalf to take such action as may be necessary or appropriate to effectuate the
subordination provided in this Article and appoints the Trustee his
attorney-in-fact for any and all such purposes, including, in the event of any
dissolution, winding-up, liquidation or reorganization of RBC whether in
bankruptcy, insolvency, receivership proceedings, or otherwise, the timely
filing of a claim for the unpaid balance of the indebtedness of RBC owing to
such holder in the form required in such proceedings and the causing of such
claim to be approved. If the Trustee does not file a proper claim at least 30
days before the expiration of the time to file such claim, then the holders of
Senior Guarantor Indebtedness and their agents, trustees or other
representative are authorized to do so and on behalf of the holders.
2.23. No Waiver of Subordination Provisions.
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(a) No right of any present or future holder of any Senior
Guarantor Indebtedness to enforce subordination as herein provided shall at
any time in any way be prejudiced or impaired by any act or failure to act on
the part of RBC or by any act or failure to act by any such holder, or by any
non-compliance by RBC with the terms, provisions and covenants of this
Indenture, regardless of any knowledge thereof any such holder may have or be
otherwise charged with.
(b) Without limiting the generality of Subsection (a) of this
Section, the holders of Senior Guarantor Indebtedness may, at any time and
from time to time, without the consent of or notice to the Trustee or the
Holders of the Securities, without incurring responsibility to the Holders of
the Securities and without impairing or releasing the subordination provided in
this Section or the obligations hereunder of the holders of the Guarantee to
the holders of Senior Guarantor Indebtedness, do any one or more of the
following: (1) change the manner, place or terms of payment or extend the time
of payment of, or renew or alter, Senior Guarantor Indebtedness or any
instrument evidencing the same or any agreement under which Senior Guarantor
Indebtedness is outstanding; (2) sell, exchange, release or otherwise deal with
any property pledged, mortgaged or otherwise securing Senior Guarantor
Indebtedness; (3) release any Person liable in any manner for the collection or
payment of Senior Guarantor Indebtedness; and
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(4) exercise or refrain from exercising any rights against RBC and any other
Person; provided, however, that in no event shall any such actions limit the
right of the Holders of the Securities to take any action to accelerate the
maturity of the Securities in accordance with provisions described under "Events
of Default" and as set forth pursuant to Article Five in the Indenture or to
pursue any rights or remedies hereunder or under applicable laws if the taking
of such action does not otherwise violate the terms of this Article.
2.24. Notice to Trustee by RBC.
------------------------
(a) RBC shall give prompt written notice to the Trustee of any fact
known to RBC which would prohibit the making of any payment to or by the Trustee
in respect of the Guarantee. Notwithstanding the provisions of this Article or
any provision of the Indenture, the Trustee shall not be charged with knowledge
of the existence of any facts which would prohibit the making of any payment to
or by the Trustee in respect of the Guarantee, unless and until the Trustee
shall have received written notice thereof from RBC or a holder of Senior
Guarantor Indebtedness or from any representative, trustee, fiduciary or agent
therefor; and, prior to the receipt of any such written notice, the Trustee
shall be entitled in all respects to assume that no such facts exist; provided,
however, that if the Trustee shall not have received the notice provided for in
this Section at least two Business Days prior to the date upon which by the
terms hereof any money may become payable for any purpose (including, without
limitation, the payment of the principal of, or premium, if any, or interest on
any Security), then, anything herein contained to the contrary notwithstanding
but without limiting the rights and remedies of the holders of Senior Guarantor
Indebtedness or any trustee, fiduciary or agent thereof, the Trustee shall have
full power and authority to receive such money and to apply the same to the
purpose for which such money was received and shall not be affected by any
notice to the contrary which may be received by it less than two Business Days
prior to such date; nor shall the Trustee be charged with knowledge of the
curing of any such default or the elimination of the act or condition preventing
any such payment unless and until the Trustee shall have received an Officers'
Certificate to such effect.
(b) The Trustee shall be entitled to rely on the delivery to it of a
written notice to the Trustee and RBC by a Person representing himself to be a
representative of a holder or a holder of Senior Guarantor Indebtedness (or a
trustee, fiduciary or agent therefor) to establish that such notice has been
given by a representative of a holder or a holder of Senior Guarantor
Indebtedness (or a trustee, fiduciary or agent therefor); provided, however,
that failure to give such notice to the Company shall not affect in any way the
ability of the Trustee to rely on such notice. In the event that the Trustee
determines in good faith that further evidence is required with respect to the
right of any Person as a holder of Senior Guarantor Indebtedness to participate
in any payment or distribution pursuant to this Article, the Trustee may
request such Person to furnish evidence to the reasonable satisfaction of the
Trustee as to the amount of Senior Guarantor Indebtedness held by such Person,
the extent to which
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such Person is entitled to participate in such payment or distribution and any
other facts pertinent to the rights of such Person under this Article, and if
such evidence is not furnished, the Trustee may defer any payment to such
Person pending judicial determination as to the right of such Person to receive
such payment.
2.25. Reliance on Judicial Order or Certificate of Liquidating Agent.
--------------------------------------------------------------
Upon any payment or distribution of assets of RBC referred to in this Article,
the Trustee and the Holders of the Securities shall be entitled to rely upon
any order or decree entered by any court of competent jurisdiction in which
such insolvency, bankruptcy, receivership, liquidation, reorganization,
dissolution, winding up or similar case or proceeding is pending, or a
certificate of the trustee in bankruptcy, receiver, liquidating trustee,
custodian, assignee for the benefit of creditors, agent or other person making
such payment or distribution, delivered to the Trustee or to the Holders of
Securities, for the purpose of ascertaining the Persons entitled to participate
in such payment or distribution, the holders of Senior Guarantor Indebtedness
and other indebtedness of RBC, the amount thereof or payable thereon, the
amount or amounts paid or distributed thereon and all other facts pertinent
thereto or to this Section, provided that the foregoing shall apply only if
such court has been fully apprised of the provisions of this Article.
2.26. Rights of Trustee as a Holder of Senior Guarantor Indebtedness;
--------------------------------------------------------------
Preservation of Trustee's Rights. The Trustee in its individual capacity shall
--------------------------------
be entitled to all the rights set forth in this Article with respect to any
Senior Guarantor Indebtedness which may at any time be held by it, to the same
extent as any other holder of Senior Guarantor Indebtedness, and nothing in the
Indenture shall deprive the Trustee of any of its rights as such holder.
Nothing in this Article shall apply to claims of, or payments to, the Trustee
under or pursuant to the provisions in the Indenture regarding compensation and
indemnification of the Trustee.
2.27. Section Applicable to Paying Agents. In case at any time any
-----------------------------------
Paying Agent other than the Trustee shall have been appointed by the Company
and be then acting under the Indenture, the term "Trustee" as used in this
Section shall in such case (unless the context otherwise requires) be construed
as extending to and including such Paying Agent within its meaning as fully for
all intents and purposes as if such Paying Agent were named in this Section in
addition to or in place of the Trustee; provided, however, that Section 2.26 of
this Guarantee shall not apply to RBC or any Affiliate of RBC if it or such
Affiliate acts as Paying Agent.
2.28. No Suspension of Remedies. Nothing contained in this Article
-------------------------
shall limit the right of the Trustee or the Holders of Securities to take any
action to accelerate the maturity of the Securities pursuant to the provisions
described under Article Five of the Indenture and as set forth in the Indenture
or to pursue any rights or remedies thereunder or under applicable law, subject
to the rights, if any, under this Section of the
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holders, from time to time, of Senior Guarantor Indebtedness to receive the
cash, property or securities receivable upon the exercise of such rights or
remedies.
2.29. Trustee's Relation to Senior Guarantor Indebtedness. With
---------------------------------------------------
respect to the holders of Senior Guarantor Indebtedness, the Trustee
undertakes to perform or to observe only such of its covenants and obligations
as are specifically set forth in this Article, and no implied covenants or
obligations with respect to the holders of Senior Guarantor Indebtedness shall
be read into this Article against the Trustee. The Trustee shall not be deemed
to owe any fiduciary duty to the holders of Senior Guarantor Indebtedness and
the Trustee shall not be liable to any holder of Senior Guarantor Indebtedness
if it shall mistakenly in the absence of gross negligence or willful misconduct
pay over or deliver to Holders, RBC or any other Person moneys or assets to
which any holder of Senior Guarantor Indebtedness shall be entitled by virtue
of this Article or otherwise.
ARTICLE THREE 3
MISCELLANEOUS
3.1. Parties. Except as otherwise specified herein, nothing in this
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Supplemental Indenture is intended or shall be construed to give any Person,
other than the Holders and the Trustee, any legal or equitable right, remedy or
claim under or in respect of RBC's Guarantee or any provision contained herein.
3.2. Governing Law. THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY,
-------------
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT
GIVING EFFECT TO ANY PRINCIPLES OF CONFLICT OF LAWS TO THE EXTENT THAT THE
APPLICATION OF THE LAW OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY. THE
TRUSTEE, THE COMPANY, ANY OTHER OBLIGOR IN RESPECT OF THE NOTES AND (BY THEIR
ACCEPTANCE OF THE NOTES) THE HOLDERS, AGREE TO SUBMIT TO THE JURISDICTION OF
ANY UNITED STATES FEDERAL OR STATE COURT LOCATED IN THE BOROUGH OF MANHATTAN,
IN THE CITY OF NEW YORK IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING
TO THIS INDENTURE OR THE NOTES.
3.3. Ratification of Indenture; Supplemental Indenture Is Part of
------------------------------------------------------------
Indenture. Except as expressly amended hereby, the Indenture is in all respects
---------
ratified and confirmed and all the terms, conditions and provisions thereof
shall remain in full force and effect. This Supplemental Indenture shall form a
part of the Indenture for all purposes, and every Holder of Notes heretofore or
hereafter authenticated and delivered shall be bound hereby. The Trustee makes
no representation or warranty as to the validity or sufficiency of this
Supplemental Indenture.
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3.4. Counterparts. The parties hereto may sign one or more copies of
------------
this Supplemental Indenture in counterparts, all of which together shall
constitute one and the same agreement.
3.5. Headings. The section headings herein are for convenience of
--------
reference only and shall not be deemed to alter or affect the meaning
or interpretation of any provisions hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this
Supplemental Indenture to be duly executed as of the date first above written.
RBC HOLDING, INC., as a Subsidiary Guarantor
By:_________________________
Name:
Title:
REMINGTON ARMS COMPANY, INC., as Issuer
By:_________________________
Name:
Title:
RACI HOLDING, INC., as a Guarantor
By:_________________________
Name:
Title:
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By:_________________________
Name:
Title:
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