EXECUTION
LIMITED GUARANTEE
January 4, 2002
Congress Financial Corporation
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: THE DOE RUN RESOURCES CORPORATION AND FABRICATED PRODUCTS, INC.
Ladies and Gentlemen:
Congress Financial Corporation ("Lender") has entered into financing
arrangements with The Doe Run Resources Corporation, a New York corporation
("Doe Run") and Fabricated Products, Inc., a Delaware corporation ("Fabricated",
and together with Doe Run, individually, each a "Borrower" and collectively,
"Borrowers") pursuant to which Xxxxxx has made and may make loans and advances
and provide other financial accommodations to Borrowers as set forth in the Loan
and Security Agreement, dated March 12, 1998, by and among Xxxxxx and Borrowers,
as amended pursuant to Amendment No. 1 to Loan and Security Agreement, dated
September 1, 1998, Amendment No. 2 to Loan and Security Agreement, dated as of
January 13, 1999, Amendment No. 3 to Loan and Security Agreement, dated as of
February 1, 1999, Amendment No. 4 to Loan and Security Agreement, dated as of
June 11, 1999, Amendment No. 5 to Loan and Security Agreement, dated January 26,
2001 and Amendment No. 6 to Loan and Security Agreement, dated of even date
herewith (as the same now exists and may hereafter be further amended, modified,
supplemented, extended, renewed, restated or replaced, the "Loan Agreement") and
the agreements, documents and instruments referred to therein or at any time
executed and/or delivered in connection therewith or related thereto (all of the
foregoing, together with the Loan Agreement, as the same now exists or may
hereafter be amended, modified, supplemented, extended, renewed, restated or
replaced, being collectively referred to herein as the "Financing Agreements").
Due to the close business and financial relationships between Borrowers and
the undersigned ("Guarantor"), in consideration of the benefits which will
accrue to Guarantor and as an inducement for and in consideration of Lender
entering into Amendment No. 6 to Loan and Security Agreement dated of even date
herewith, by and among Lender and Borrowers (as the same now exists or may be
amended, modified, supplemented, extended, renewed, restated or replaced
"Amendment No. 6"), and Xxxxxx's continuing to make loans and advances and
provide other financial accommodations to Borrowers pursuant to the Loan
Agreement, as so amended, and the other Financing Agreements, Guarantor hereby
agrees in favor of Xxxxxx as follows:
1. GUARANTEE.
(a) Subject to the limitations set forth in Section 2 below, Guarantor
absolutely and unconditionally guarantees and agrees to be liable for the full
and indefeasible payment and performance when due of the following (all of which
are collectively referred to herein as the "Guaranteed Obligations"): all
obligations, liabilities and indebtedness of any kind, nature and description of
Borrowers to Lender and/or its affiliates, including principal, interest,
charges, fees, costs and expenses, however evidenced, whether as principal,
surety, endorser, guarantor or otherwise, whether arising under the Loan
Agreement, the other Financing Agreements, or otherwise, whether now existing or
hereafter arising, whether arising before, during or after the initial or any
renewal term of the Loan Agreement or after the commencement of any case with
respect to either Borrower under the United States Bankruptcy Code or any
similar statute (including, without limitation, the payment of interest and
other amounts which would accrue and become due but for the commencement of such
case, whether or not such amounts are allowed or allowable in whole or in part
in any such case and including principal, interest, fees, charges and expenses
in any way related thereto and all other obligations of Borrowers or their
successors to Lender, arising after the commencement of such case), whether
direct or indirect, absolute or contingent, joint or several, due or not due,
primary or secondary, liquidated or unliquidated, secured or unsecured, and
however acquired by Lender and all expenses (including, without limitation,
attorneys' fees and legal expenses) incurred by Lender in connection with the
preparation, execution, delivery, recording, administration, collection,
liquidation, enforcement and defense of Borrowers' obligations, liabilities and
indebtedness, to Lender, the rights of Lender in any collateral or under this
Guarantee and all other Financing Agreements or in any way involving claims by
or against Lender directly or indirectly arising out of or related to this
Guarantee, whether such expenses are incurred before, during or after the
initial or any renewal term of the Loan Agreement and the other Financing
Agreements or after the commencement of any case with respect to either Borrower
or Guarantor under the United States Bankruptcy Code or any similar statute.
(b) This Guarantee is a guaranty of payment and not of collection.
Guarantor agrees that Xxxxxx need not attempt to collect any Guaranteed
Obligations from either Borrower or any other Obligor (as hereinafter defined)
or to realize upon any collateral, but may require Guarantor to make immediate
payment of all of the Guaranteed Obligations to Lender when due, whether by
maturity, acceleration or otherwise, or at any time thereafter. Lender may apply
any amounts received in respect of the Guaranteed Obligations to any of the
Guaranteed Obligations, in whole or in part (including attorneys' fees and legal
expenses incurred by Lender with respect thereto or otherwise chargeable to
Borrowers or Guarantor) and in such order as Lender may elect.
(c) Payment by Guarantor shall be made to Lender at the office of
Lender from time to time on demand as Guaranteed Obligations become due. The
Guaranteed Obligations shall be due for purposes hereof regardless of whether
Borrowers are permitted to make any payments in respect thereof under the terms
of Amendment No. 6 or otherwise. Guarantor shall make all payments to Lender on
the Guaranteed Obligations free and clear of, and without deduction or
withholding for or on account of, any setoff, counterclaim, defense, duties,
taxes, levies, imposts, fees, deductions, withholding, restrictions or
conditions of any kind. One or more successive or
concurrent actions may be brought hereon against Guarantor either in the same
action in which any Borrower or any other Obligor is sued or in separate
actions. In the event any claim or action, or action on any judgment, based on
this Guarantee is brought against Guarantor, Guarantor agrees not to deduct,
set-off, or seek any counterclaim for or recoup any amounts which are or may be
owed by Lender to Guarantor.
(d) Except as Lender may otherwise agree in writing, all payments
received by Xxxxxx in respect of any of the obligations of Borrowers to Lender
(whether as proceeds of collateral or otherwise), including the Guaranteed
Obligations, shall be deemed applied first to the obligations of Borrowers to
Lender in excess of the amount of the limit on the liability of Guarantor
provided for herein.
2. LIMITATION. Notwithstanding anything to the contrary contained in this
Guarantee, the liability of Guarantor hereunder for the Guaranteed Obligations
shall not exceed: (a) the principal amount of $2,000,000, plus (b) interest on
$2,000,000 of the Guaranteed Obligations from the earlier of the date of demand
by Lender for payment hereunder or the date of the commencement of any
proceeding under the United States Bankruptcy Code against Guarantor or either
Borrower, plus (c) the reasonable costs, expenses and other charges related to
the collection of such Guaranteed Obligations (including, but not limited to,
attorneys' fees and legal expenses). All references to Guaranteed Obligations in
the Guarantee mean such Obligations without regard to the limit on the liability
of Guarantor pursuant to in this Section 2.
3. WAIVERS AND CONSENTS.
1. Notice of acceptance of this Guarantee, the making of loans and
advances and providing other financial accommodations to Borrowers and
presentment, demand, protest, notice of protest, notice of nonpayment or default
and all other notices to which Borrowers or Guarantor are entitled are hereby
waived by Guarantor. Guarantor also waives notice of and hereby consents to, any
amendment, modification, supplement, extension, renewal, or restatement of the
Loan Agreement and any of the other Financing Agreements, including, without
limitation, extensions of time of payment of or increase or decrease in the
amount of any of the Guaranteed Obligations, the interest rate, fees, other
charges, or any collateral, and the guarantee made herein shall apply to the
Loan Agreement and the other Financing Agreements and the Guaranteed Obligations
as so amended, modified, supplemented, renewed, restated or extended, increased
or decreased, the taking, exchange, surrender and releasing of collateral or
guarantees now or at any time held by or available to Lender for the obligations
of Borrowers or any other party at any time liable on or in respect of the
Guaranteed Obligations or who is the owner of any property which is security for
the Guaranteed Obligations (individually, such other party or owner of property
being an "Obligor" and collectively, the "Obligors"), the exercise of, or
refraining from the exercise of any rights against Borrowers or any other
Obligor or any collateral, the settlement, compromise or release of, or the
waiver of any default with respect to, any of the Guaranteed Obligations and any
financing by Lender of Borrowers under Section 364 of the United States
Bankruptcy Code or consent to the use of cash collateral by Lender under Section
363 of the United States Bankruptcy Code. Xxxxxxxxx agrees that the amount of
the
Guaranteed Obligations shall not be diminished and the liability of Guarantor
hereunder shall not be otherwise impaired or affected by any of the foregoing.
2. No invalidity, irregularity or unenforceability of all or any part
of the Guaranteed Obligations shall affect, impair or be a defense to this
Guarantee, nor shall any other circumstance which might otherwise constitute a
defense available to or legal or equitable discharge of Borrowers in respect of
any of the Guaranteed Obligations, or Guarantor in respect of this Guarantee,
affect, impair or be a defense to this Guarantee. Without limitation of the
foregoing, the liability of Guarantor hereunder shall not be discharged or
impaired in any respect by reason of any failure by Lender to perfect or
continue perfection of any lien or security interest in any collateral or any
delay by Lender in perfecting any such lien or security interest. As to
interest, fees and expenses, whether arising before or after the commencement of
any case with respect to either Borrower under the United States Bankruptcy Code
or any similar statute, Guarantor shall be liable therefor, even if such
Borrower's liability for such amounts does not, or ceases to, exist by operation
of law. Guarantor acknowledges that Xxxxxx has not made any representations to
Guarantor with respect to Borrowers, any other Obligor or otherwise in
connection with the execution and delivery by Guarantor of this Guarantee and
Guarantor is not in any respect relying upon Lender or any statements by Lender
in connection with this Guarantee.
3. Until all of the Obligations have been indefeasibly paid and
satisfied in full in immediately available funds and the Loan Agreement and the
other Financing Agreements have been terminated, (i) Guarantor hereby
irrevocably and unconditionally waives and relinquishes all statutory,
contractual, common law, equitable and all other claims against (A) Borrowers,
(B) any collateral for the Guaranteed Obligations or (C) other assets of
Borrowers or any other Obligor; in each case for subrogation, reimbursement,
exoneration, contribution, indemnification, setoff or other recourse in respect
of sums paid or payable to Lender by Guarantor hereunder, and (ii) Guarantor
hereby further irrevocably and unconditionally waives and relinquishes any and
all other benefits which Guarantor might otherwise directly or indirectly
receive or be entitled to receive by reason of any amounts paid by or collected
or due from Guarantor, Borrowers or any other Obligor upon the Guaranteed
Obligations or realized from their property. Notwithstanding anything to the
contrary in the previous sentence, Guarantor shall be permitted to file a proof
of claim or other proof of debt in the form required in connection with any
dissolution, winding-up, liquidation or reorganization of a Borrower in any
bankruptcy, insolvency or receivership proceedings with respect to a Borrower.
4. SUBORDINATION. Payment of all amounts now or hereafter owed to Guarantor
by Borrowers or any other Obligor is hereby subordinated in right of payment to
the indefeasible payment in full to Lender of the Guaranteed Obligations (other
than any payments by Borrowers to Guarantor made in accordance with the terms
and conditions of Sections 6.7 (b)(iii), (iv), (v) and (vii) of the Loan
Agreement) and all such amounts and any security and guarantees therefor are
hereby assigned to Lender as security for the Guaranteed Obligations.
5. ACCELERATION. Notwithstanding anything to the contrary contained herein
or in any of the terms of any of the other Financing Agreements, the liability
of Guarantor for the entire
Guaranteed Obligations shall mature and become immediately due and payable, even
if the liability of Borrowers or any other Obligor therefor does not, upon
demand by Lender at any time on or after the occurrence of any act, condition or
event which constitutes an Event of Default (as defined in the Loan Agreement),
PROVIDED, THAT, upon the commencement of any case or proceeding under the US
Bankruptcy Code or any other insolvency statute or similar statute or in the
event that Lender is otherwise stayed from making any demand upon Guarantor, the
liability of Guarantor hereunder shall automatically mature and become
immediately due and payable without demand.
6. ACCOUNT STATED. The books and records of Lender showing the account
between Xxxxxx and Borrowers shall be admissible in evidence in any action or
proceeding against or involving Guarantor as PRIMA FACIE proof of the items
therein set forth, and the monthly statements of Lender rendered to Borrowers,
to the extent to which no written objection is made within thirty (30) days from
the date of sending thereof to Borrowers, shall be deemed conclusively correct
and constitute an account stated between Xxxxxx and Borrowers and be binding on
Guarantor.
7. TERMINATION.
(a) This Guarantee is continuing, unlimited, absolute and
unconditional. All Guaranteed Obligations shall be conclusively presumed to have
been created in reliance on this Guarantee. Guarantor shall continue to be
liable hereunder until one of Xxxxxx's officers actually receives a written
termination notice from Guarantor sent to Lender at its address set forth above
by certified mail, return receipt requested and thereafter as set forth below.
Revocation or termination hereof by Guarantor shall not affect, in any manner,
the rights of Lender or any obligations or duties of Guarantor under this
Guarantee with respect to Guaranteed Obligations which have been created,
contracted, assumed or incurred prior to the receipt by Lender of such written
notice of revocation or termination as provided herein, including, without
limitation, all amendments, extensions, renewals and modifications of such
Guaranteed Obligations (whether or not evidenced by new or additional
agreements, documents or instruments executed on or after such notice of
revocation or termination), all interest, fees and similar charges accruing or
due on and after revocation or termination, and all attorneys' fees and legal
expenses, costs and other expenses paid or incurred on or after such notice of
revocation or termination in attempting to collect or enforce any of the
Guaranteed Obligations against Borrowers, Guarantor or any other Obligor
(whether or not suit be brought), or Guaranteed Obligations which have been
created, contracted, assumed or incurred after the receipt by Lender of such
written notice of revocation or termination as provided herein pursuant to any
contract entered into by Lender prior to receipt of such notice. The sole effect
of such revocation or termination by Guarantor shall be to exclude from this
Guarantee the liability of Guarantor for those Guaranteed Obligations arising
after the date of receipt by Xxxxxx of such written notice which are unrelated
to Guaranteed Obligations arising or transactions entered into prior to such
date.
(b) Without limiting anything contained in Section 7(a) hereof and
subject to Section 8 hereof, this Guarantee may not be terminated and shall
continue until EITHER: if any amounts have been paid by Guarantor to Lender
hereunder, Guarantor has been indefeasibly
repaid in full by Borrowers pursuant to Section 3(c) hereof or if no amounts
have been paid to Lender hereunder, either: all of the Guaranteed Obligations
have been indefeasibly repaid and satisfied in full by Borrowers in immediately
available funds (without regard to any limitations on the liability of Guarantor
hereunder) and the financing arrangements between Borrowers and Lender have been
terminated or each of the following conditions is satisfied as determined by
Lender: (1) the reserve set forth in Section 2.4(b) of the Loan Agreement is
$5,000,000, (2) as of the date that such reserve shall be increased to
$5,000,000 pursuant to Section 2.4(b) of the Loan Agreement and for three (3)
consecutive Business Days thereafter, Excess Availability shall be not less that
$1,000,000 and (3) no Event of Default or act, condition or event which with
notice or passage of time or both would constitute an Event of Default shall
exist or have occurred and be continuing including, any of the Existing
Defaults.
(c) Guarantor acknowledges that any termination or renovation or
purported termination or revocation by Guarantor of this Guarantee except in
accordance with Section 7(b) above shall constitute an Event of Default.
8. REINSTATEMENT.
(a) If after receipt of any payment of, or proceeds of collateral
applied to the payment of, any of the Guaranteed Obligations, Lender is required
to surrender or return such payment or proceeds to any Person for any reason,
then the Guaranteed Obligations intended to be satisfied by such payment or
proceeds shall be reinstated and continue and this Guarantee shall continue in
full force and effect (subject to the limitation set forth in Section 2 hereof)
as if such payment or proceeds had not been received by Lender. Guarantor shall
be liable to pay to Lender, and does indemnify and hold Lender harmless for the
amount of any payments or proceeds surrendered or returned. This Section 8 shall
remain effective notwithstanding any contrary action which may be taken by
Xxxxxx in reliance upon such payment or proceeds. This Section 8 shall survive
the termination or revocation of this Guarantee.
(b) In the event that at any time after the date of the termination of
this Guarantee, Lender determines that any of the conditions of Section 7(b)
were not satisfied, this Guarantee shall be reinstated and shall continue in
full force and effect. This Section 8(b) shall survive the termination or
revocation of this Guarantee. Guarantor shall be liable to pay to Lender, and
does indemnify and hold Lender harmless for the amount of any such payments.
9. AMENDMENTS AND WAIVERS. Neither this Guarantee nor any provision
hereof shall be amended, modified, waived or discharged orally or by course of
conduct, but only by a written agreement signed by an authorized officer of
Lender. Lender shall not by any act, delay, omission or otherwise be deemed to
have expressly or impliedly waived any of its rights, powers and/or remedies
unless such waiver shall be in writing and signed by an authorized officer of
Lender. Any such waiver shall be enforceable only to the extent specifically set
forth therein. A waiver by Lender of any right, power and/or remedy on any one
occasion shall not be construed as a bar to or waiver of any such right, power
and/or remedy which Lender would otherwise have on any future occasion, whether
similar in kind or otherwise.
10. CORPORATE EXISTENCE, POWER AND AUTHORITY. Guarantor is a corporation
duly organized and in good standing under the laws of its state or other
jurisdiction of incorporation and is duly qualified as a foreign corporation and
in good standing in all states or other jurisdictions where the nature and
extent of the business transacted by it or the ownership of assets makes such
qualification necessary, except for those jurisdictions in which the failure to
so qualify would not have a material adverse effect on the financial condition,
results of operation or businesses of Guarantor or the rights of Lender
hereunder or under any of the other Financing Agreements. The execution,
delivery and performance of this Guarantee is within the corporate powers of
Guarantor, have been duly authorized and are not in contravention of law or the
terms of the certificates of incorporation, by-laws, or other organizational
documentation of Guarantor, or any indenture, agreement or undertaking to which
Guarantor is a party or by which Guarantor or its property are bound. This
Guarantee constitutes the legal, valid and binding obligation of Guarantor
enforceable in accordance with its terms.
11. FINANCIAL INFORMATION OF GUARANTOR. As soon as available, but in any
event not later than one hundred twenty (120) days after the close of each
fiscal year of Guarantor, Guarantor shall cause to be delivered to Lender a
true, correct and complete copy of the annual audited balance sheets, statements
of earnings and retained earnings and cash flows for Guarantor and its
Subsidiaries for such fiscal year, and the accompanying notes thereto, setting
forth in each case in comparative form figures for the previous fiscal year, all
in reasonable detail, fairly presenting the financial position and the results
of operations of Guarantor and its Subsidiaries as at the date thereof and for
the fiscal year then ended, and prepared in accordance with GAAP consistently
applied.
12. GOVERNING LAW; CHOICE OF FORUM; SERVICE OF PROCESS; JURY TRIAL WAIVER.
(a) The validity, interpretation and enforcement of this Guarantee and
any dispute arising out of the relationship between Guarantor and Xxxxxx,
whether in contract, tort, equity or otherwise, shall be governed by the
internal laws of the State of New York without regard to principals of conflicts
of law or other rule of law that would result in the application of the law of
any jurisdiction other than the State of New York.
(b) Guarantor hereby irrevocably consents and submits to the
non-exclusive jurisdiction of the Supreme Court of the State of New York in New
York County and the United States District Court for the Southern District of
New York, whichever Lender elects, and waives any objection based on venue or
FORUM NON CONVENIENS with respect to any action instituted therein arising under
this Guarantee or any of the other Financing Agreements or in any way connected
with or related or incidental to the dealings of Guarantor and Lender in respect
of this Guarantee or any of the other Financing Agreements or the transactions
related hereto or thereto, in each case whether now existing or hereafter
arising and whether in contract, tort, equity or otherwise, and agrees that any
dispute arising out of the relationship between Guarantor or Borrowers and
Lender or the conduct of any such persons in connection with this Guarantee, the
other Financing Agreements or otherwise shall be heard only in the courts
described above (except that Lender shall have the right to bring any action or
proceeding against Guarantor or its property in the courts of any other
jurisdiction which Lender deems necessary or appropriate in
order to realize on any collateral at any time granted by Borrowers or Guarantor
to Lender or to otherwise enforce its rights against Guarantor or its property).
(c) Guarantor hereby waives personal service of any and all process
upon it and consents that all such service of process may be made by certified
mail (return receipt requested) directed to its address set forth on the
signature pages hereof and service so made shall be deemed to be completed five
(5) days after the same shall have been so deposited in the U.S. mails, or, at
Lender's option, by service upon Guarantor in any other manner provided under
the rules of any such courts. Within thirty (30) days after such service,
Guarantor shall appear in answer to such process, failing which Guarantor shall
be deemed in default and judgment may be entered by Lender against Guarantor for
the amount of the claim and other relief requested.
(d) GUARANTOR HEREBY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM,
DEMAND, ACTION OR CAUSE OF ACTION ARISING UNDER THIS GUARANTEE OR ANY OF THE
OTHER FINANCING AGREEMENTS OR IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL
TO THE DEALINGS OF GUARANTOR AND LENDER IN RESPECT OF THIS GUARANTEE OR ANY OF
THE OTHER FINANCING AGREEMENTS OR THE TRANSACTIONS RELATED HERETO OR THERETO, IN
EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER IN CONTRACT,
TORT, EQUITY OR OTHERWISE. GUARANTOR HEREBY AGREES AND CONSENTS THAT ANY SUCH
CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT
A JURY AND THAT GUARANTOR OR LENDER MAY FILE AN ORIGINAL COUNTERPART OF A COPY
OF THIS AGREEMENT WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF XXXXXXXXX
AND XXXXXX TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
(e) Lender shall not have any liability to Guarantor (whether in tort,
contract, equity or otherwise) for losses suffered by Guarantor in connection
with, arising out of, or in any way related to the transactions or relationships
contemplated by this Guarantee, or any act, omission or event occurring in
connection herewith, unless it is determined by a final and non-appealable
judgment or court order binding on Lender that the losses were the result of
acts or omissions constituting gross negligence or willful misconduct. In any
such litigation, Xxxxxx shall be entitled to the benefit of the rebuttable
presumption that it acted in good faith and with the exercise of ordinary care
in the performance by it of the terms of the Loan Agreement and the other
Financing Agreements.
13. NOTICES. All notices, requests and demands hereunder shall be in
writing and (a) made to Lender at its address set forth above and to Guarantor
at its chief executive office set forth below, or to such other address as
either party may designate by written notice to the other in accordance with
this provision, and (b) deemed to have been given or made: if delivered in
person, immediately upon delivery; if by telex, telegram or facsimile
transmission, immediately upon sending and upon confirmation of receipt; if by
nationally recognized overnight courier service with instructions to deliver the
next business day, one (1) business day after sending; and if by certified mail,
return receipt requested, five (5) days after mailing.
14. PARTIAL INVALIDITY. If any provision of this Guarantee is held to be
invalid or unenforceable, such invalidity or unenforceability shall not
invalidate this Guarantee as a whole, but this Guarantee shall be construed as
though it did not contain the particular provision held to be invalid or
unenforceable and the rights and obligations of the parties shall be construed
and enforced only to such extent as shall be permitted by applicable law.
15. ENTIRE AGREEMENT. This Guarantee represents the entire agreement and
understanding of the parties concerning the subject matter hereof, and
supersedes all other prior agreements, understandings, negotiations and
discussions, representations, warranties, commitments, proposals, offers and
contracts concerning the subject matter hereof, whether oral or written.
16. SUCCESSORS AND ASSIGNS. This Guarantee shall be binding upon Guarantor
and its successors and assigns and shall inure to the benefit of Lender and its
successors, endorsees, transferees and assigns. The liquidation, dissolution or
termination of Guarantor shall not terminate this Guarantee as to such entity or
as to Guarantor.
17. CONSTRUCTION. All references to the term "Guarantor" wherever used
herein shall mean Guarantor and its successors and assigns (including, without
limitation, any receiver, trustee or custodian for Guarantor or any of its
assets or Guarantor in its capacity as debtor or debtor-in-possession under the
United States Bankruptcy Code). All references to the term "Lender" wherever
used herein shall mean Lender and its successors and assigns and all references
to the term "Borrower" or "Borrowers" wherever used herein shall mean each
Borrower and its successors and assigns (including, without limitation, any
receiver, trustee or custodian for such Borrower or any of its assets or each
Borrower in its capacity as debtor or debtor-in-possession under the United
States Bankruptcy Code). All references to the term "Person" or "person"
wherever used herein shall mean any individual, sole proprietorship,
partnership, corporation (including, without limitation, any corporation which
elects subchapter S status under the Internal Revenue Code of 1986, as amended),
limited liability company, limited liability partnership, business trust,
unincorporated association, joint stock corporation, trust, joint venture or
other entity or any government or any agency or instrumentality or political
subdivision thereof. All references to the plural shall also mean the singular
and to the singular shall also mean the plural.
IN WITNESS WHEREOF, Xxxxxxxxx has executed and delivered this Guarantee as
of the day and year first above written.
THE RENCO GROUP, INC.
By:
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Title:
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Chief Executive Office:
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this ____ day of January, 2002, before me personally came
_____________________, to me known, who stated that he is the
____________________ of THE RENCO GROUP, INC., the corporation described in and
which executed the foregoing instrument; and that he signed his name thereto by
order of the Board of Directors of said corporation.
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Notary Public
