EXHIBIT 10.2
SECOND AMENDED AND RESTATED
SUBSIDIARY GUARANTY
GUARANTY, dated as of May 18, 1999, as amended and restated as
of November 17, 2000 and further amended and restated as of May 10, 2002 (as so
amended and restated and as the same may be further amended, restated, modified
and/or supplemented from time to time, this "Guaranty"), made by the undersigned
(together with any other entity which becomes a party hereto pursuant to Section
24, each a "Guarantor" and, collectively, the "Guarantors"). Except as otherwise
defined herein, terms used herein and defined in the Credit Agreement (as
defined below) shall be used herein as therein defined.
W I T N E S S E T H :
WHEREAS, X.X. Xxxxxxxx Tobacco Holdings, Inc. (f/k/a RJR
Nabisco, Inc. and herein, the "Borrower"), the various lending institutions from
time to time party thereto (the "Lenders"), JPMorgan Chase Bank (f/k/a The Chase
Manhattan Bank), as Administrative Agent (the "Administrative Agent"), Citibank,
N.A., as Syndication Agent (the "Syndication Agent"), The Bank of New York, The
Bank of Nova Scotia and Xxxxxx Commercial Paper Inc., as Documentation Agents
(the "Documentation Agents"), and Credit Lyonnais New York Branch and Mizuho
Corporate Bank, Ltd., as Co-Documentation Agents (the "Co-Documentation
Agents"), have entered into a Credit Agreement, dated as of May 7, 1999, and
amended and restated as of November 17, 2000 and May 10, 2002 (as so amended and
restated and as the same may be further amended, restated, modified and/or
supplemented from time to time, the "Credit Agreement"), providing for the
making of Loans to the Borrower and the issuance of, and participation in,
Letters of Credit for the account of the Borrower, all as contemplated therein
(the Lenders, each Letter of Credit Issuer, the Administrative Agent, the
Syndication Agent, the Documentation Agents, the Co-Documentation Agents, the
Senior Managing Agents and the Collateral Agent herein called the "Lender
Creditors");
WHEREAS, the Borrower may from time to time enter into one or
more (i) interest rate protection agreements (including, without limitation,
interest rate swaps, caps, floors, collars and similar agreements), (ii) foreign
exchange contracts, currency swap agreements, commodity agreements or other
similar agreements or arrangements designed to protect against the fluctuations
in currency values and/or (iii) other types of hedging agreements from time to
time (each such agreement or arrangement with a Hedging Creditor (as hereinafter
defined), a "Permitted Hedging Agreement") with any Lender or Lenders or a
syndicate of financial institutions organized by a Lender or an affiliate of a
Lender (even if in either case any such Lender ceases to be a Lender under the
Credit Agreement for any reason) (any institution that participates therein, and
in each case their subsequent successors and assigns, collectively, the "Hedging
Creditors", and together with the Lender Creditors, the "Creditors");
WHEREAS, each Guarantor is a direct or indirect Subsidiary of
the Borrower;
WHEREAS, certain of the Guarantors have heretofore entered
into a Subsidiary Guaranty, dated as of May 18, 1999 and amended and restated as
of November 17, 2000 (as amended, modified and/or supplemented to, but not
including, the date hereof, the "First Amended and Restated Subsidiary
Guaranty");
WHEREAS, the Guarantors desire to amend and restate the First
Amended and Restated Subsidiary Guaranty in the form of this Guaranty;
WHEREAS, the Credit Agreement and the Permitted Hedging
Agreements require that this Guaranty be executed and delivered; and
WHEREAS, each Guarantor will obtain benefits from the
incurrence and maintenance of Loans by the Borrower and the issuance of, and
participation in, Letters of Credit for the account of the Borrower under the
Credit Agreement and the entering into and maintaining of the Permitted Hedging
Agreements and, accordingly, desires to execute this Guaranty in order to
satisfy the requirements described in the preceding paragraph;
NOW, THEREFORE, in consideration of the foregoing and other
benefits accruing to each Guarantor, the receipt and sufficiency of which are
hereby acknowledged, each Guarantor hereby makes the following representations
and warranties to the Creditors and hereby covenants and agrees with each
Creditor as follows:
1. Each Guarantor, jointly and severally, irrevocably
and unconditionally guarantees: (i) to the Lender Creditors the full and prompt
payment when due (whether at the stated maturity, by acceleration or otherwise)
of (x) the principal of and interest on the Notes issued by, and the Loans made
to, the Borrower under the Credit Agreement and all reimbursement obligations
and Unpaid Drawings with respect to Letters of Credit and (y) all other
obligations (including obligations which, but for any automatic stay under
Section 362(a) of the Bankruptcy Code, would become due) and liabilities owing
by the Borrower to the Lender Creditors (including, without limitation,
indemnities, Fees and interest thereon) now existing or hereafter incurred
under, arising out of or in connection with the Credit Agreement or any other
Credit Document and the due performance and compliance with the terms,
conditions and agreements contained in the Credit Documents by the Borrower (all
such principal, interest, liabilities and obligations being herein collectively
called the "Credit Document Obligations"); and (ii) to each Hedging Creditor the
full and prompt payment when due (whether at the stated maturity, by
acceleration or otherwise) of all obligations (including obligations which, but
for any automatic stay under Section 362(a) of the Bankruptcy Code, would become
due) and liabilities owing by the Borrower to the Hedging Creditors (including,
without limitation, indemnities, fees and interest thereon) under any Permitted
Hedging Agreements, whether now in existence or hereafter arising, and the due
performance and compliance by the Borrower with all terms, conditions and
agreements contained therein (all such obligations and liabilities under this
clause (ii) being herein collectively called the "Hedging Obligations", and
together with the Credit Document Obligations are herein collectively called the
"Guaranteed Obligations"). Each Guarantor understands, agrees and confirms that
the Creditors may enforce this Guaranty up to the full amount of the Guaranteed
Obligations against each Guarantor without proceeding against any other
Guarantor, the Borrower, against any security for the Guaranteed Obligations, or
against any other guarantor under any other guaranty covering all or a portion
of the Guaranteed
2
Obligations. This Guaranty shall constitute a guaranty of payment and not of
collection. All payments by each Guarantor under this Guaranty shall be made on
the same basis as payments by the Borrower under Sections 4.03 and 4.04 of the
Credit Agreement.
2. Additionally, each Guarantor, jointly and severally,
unconditionally and irrevocably, guarantees the payment of any and all
Guaranteed Obligations to the Creditors whether or not due or payable by the
Borrower upon the occurrence in respect of the Borrower of any of the events
specified in Section 9.05 of the Credit Agreement, and unconditionally and
irrevocably, jointly and severally, promises to pay such Guaranteed Obligations
to the Creditors, or order, on demand, in lawful money of the United States of
America.
3. The liability of each Guarantor hereunder is
exclusive and independent of any security for or other guaranty of the
Guaranteed Obligations whether executed by such Guarantor, any other Guarantor,
any other guarantor or by any other person, and the liability of each Guarantor
hereunder shall not be affected or impaired by (i) any direction as to
application of payment by the Borrower or by any other person, (ii) any other
continuing or other guaranty, undertaking or maximum liability of a guarantor or
of any other person as to the Guaranteed Obligations, (iii) any payment on or in
reduction of any such other guaranty or undertaking, (iv) any dissolution,
termination or increase, decrease or change in personnel by the Borrower, (v)
any payment made to any Creditor on the Guaranteed Obligations which any
Creditor repays the Borrower pursuant to court order in any bankruptcy,
reorganization, arrangement, moratorium or other debtor relief proceeding, and
each Guarantor waives any right to the deferral or modification of its
obligations hereunder by reason of any such proceeding, (vi) any action or
inaction by the Creditors as contemplated in Section 6 hereof or (vii) any
invalidity, irregularity or unenforceability of all or part of the Guaranteed
Obligations or of any security therefor.
4. The obligations of each Guarantor hereunder are
independent of the obligations of any other Guarantor, any other guarantor of
the Borrower or the Borrower, and a separate action or actions may be brought
and prosecuted against each Guarantor whether or not action is brought against
any other Guarantor, any other guarantor of the Borrower or the Borrower and
whether or not any other Guarantor, any other guarantor of the Borrower or the
Borrower be joined in any such action or actions. Each Guarantor waives, to the
fullest extent permitted by law, the benefit of any statute of limitations
affecting its liability hereunder or the enforcement thereof. Any payment by the
Borrower or other circumstance which operates to toll any statute of limitations
as to the Borrower shall operate to toll the statute of limitations as to each
Guarantor.
5. Each Guarantor hereby waives notice of acceptance of
this Guaranty and notice of any liability to which it may apply, and waives
promptness, diligence, presentment, demand of payment, protest, notice of
dishonor or nonpayment of any such liabilities, suit or taking of other action
by the Administrative Agent or any other Creditor against, and any other notice
to, any party liable thereon (including such Guarantor or any other guarantor of
the Borrower).
6. Any Creditor may at any time and from time to time
without the consent of, or notice to, any Guarantor, without incurring
responsibility to such Guarantor, without impairing
3
or releasing the obligations of such Guarantor hereunder, upon or without any
terms or conditions and in whole or in part:
(i) change the manner, place or terms of payment of,
and/or change or extend the time of payment of, renew or alter, any of
the Guaranteed Obligations (including any increase or decrease in the
rate of interest thereon), any security therefor, or any liability
incurred directly or indirectly in respect thereof, and the guaranty
herein made shall apply to the Guaranteed Obligations as so changed,
extended, renewed or altered;
(ii) take and hold security for the payment of the
Guaranteed Obligations and/or sell, exchange, release, surrender,
realize upon or otherwise deal with in any manner and in any order any
property by whomsoever at any time pledged or mortgaged to secure, or
howsoever securing, the Guaranteed Obligations or any liabilities
(including any of those hereunder) incurred directly or indirectly in
respect thereof or hereof, and/or any offset thereagainst;
(iii) exercise or refrain from exercising any rights
against the Borrower, any Guarantor, any other guarantor of the
Borrower or others or otherwise act or refrain from acting;
(iv) settle or compromise any of the Guaranteed
Obligations, any security therefor or any liability (including any of
those hereunder) incurred directly or indirectly in respect thereof or
hereof, and may subordinate the payment of all or any part thereof to
the payment of any liability (whether due or not) of the Borrower to
creditors of the Borrower;
(v) apply any sums by whomsoever paid or howsoever
realized to any liability or liabilities of the Borrower to the
Creditors regardless of what liabilities of the Borrower remain unpaid;
(vi) release or substitute any one or more endorsers,
guarantors, Guarantors, the Borrower or other obligors;
(vii) consent to or waive any breach of, or any act,
omission or default under, the Permitted Hedging Agreements, the Credit
Documents or any of the instruments or agreements referred to therein,
or otherwise amend, modify or supplement any of the Permitted Hedging
Agreements, the Credit Documents or any of such other instruments or
agreements; and/or
(viii) act or fail to act in any manner referred to in this
Guaranty which may deprive such Guarantor of its right to subrogation
against the Borrower to recover full indemnity for any payments made
pursuant to this Guaranty.
7. No invalidity, irregularity or unenforceability of
all or any part of the Guaranteed Obligations or of any security therefor shall
affect, impair or be a defense to this Guaranty, and this Guaranty shall be
primary, absolute and unconditional notwithstanding the occurrence of any event
or the existence of any other circumstances which might constitute a
4
legal or equitable discharge of a surety or guarantor except payment in full of
the Guaranteed Obligations.
8. This Guaranty is a continuing one and all liabilities
to which it applies or may apply under the terms hereof shall be conclusively
presumed to have been created in reliance hereon. No failure or delay on the
part of any Creditor in exercising any right, power or privilege hereunder shall
operate as a waiver thereof; nor shall any single or partial exercise of any
right, power or privilege hereunder preclude any other or further exercise
thereof or the exercise of any other right, power or privilege. The rights and
remedies herein expressly specified are cumulative and not exclusive of any
rights or remedies which any Creditor would otherwise have. No notice to or
demand on any Guarantor in any case shall entitle such Guarantor to any other
further notice or demand in similar or other circumstances or constitute a
waiver of the rights of any Creditor to any other or further action in any
circumstances without notice or demand. It is not necessary for any Creditor to
inquire into the capacity or powers of the Borrower or any of its Subsidiaries
or the officers, directors, partners or agents acting or purporting to act on
its behalf, and any indebtedness made or created in reliance upon the professed
exercise of such powers shall be guaranteed hereunder.
9. Any indebtedness of the Borrower now or hereafter
held by any Guarantor is hereby subordinated to the indebtedness of the Borrower
to the Creditors; and such indebtedness of the Borrower to any Guarantor, if the
Administrative Agent, after an Event of Default has occurred, so requests, shall
be collected, enforced and received by such Guarantor as trustee for the
Creditors and be paid over to the Creditors on account of the indebtedness of
the Borrower to the Creditors, but without affecting or impairing in any manner
the liability of such Guarantor under the other provisions of this Guaranty.
Prior to the transfer by any Guarantor of any note or negotiable instrument
evidencing any indebtedness of the Borrower to such Guarantor, such Guarantor
shall xxxx such note or negotiable instrument with a legend that the same is
subject to this subordination. Without limiting the generality of the foregoing,
each Guarantor hereby agrees with the Creditors that it will not exercise any
right of subrogation which it may at any time otherwise have as a result of this
Guaranty (whether contractual, under Section 509 of the Bankruptcy Code or
otherwise) until all Guaranteed Obligations have been irrevocably paid in full
in cash.
10. (a) Each Guarantor waives any right (except as shall
be required by applicable statute and cannot be waived) to require the Creditors
to: (i) proceed against the Borrower, any other Guarantor, any other guarantor
of the Borrower or any other person; (ii) proceed against or exhaust any
security held from the Borrower, any other Guarantor, any other guarantor of the
Borrower or any other person; or (iii) pursue any other remedy in the Creditors'
power whatsoever. Each Guarantor waives any defense based on or arising out of
any defense of the Borrower, any other Guarantor, any other guarantor of the
Borrower or any other person other than payment in full in cash of the
Guaranteed Obligations, including, without limitation, any defense based on or
arising out of the disability of the Borrower, any other Guarantor, any other
guarantor of the Borrower or any other person, or the unenforceability of the
Guaranteed Obligations or any part thereof from any cause, or the cessation from
any cause of the liability of the Borrower other than payment in full in cash of
the Guaranteed Obligations. The Creditors may, at their election, foreclose on
any security held by the Administrative Agent, the Collateral Agent or the other
Creditors by one or more judicial or nonjudicial sales, whether or not every
5
aspect of any such sale is commercially reasonable (to the extent such sale is
permitted by applicable law), or exercise any other right or remedy the
Creditors may have against the Borrower or any other person, or any security,
without affecting or impairing in any way the liability of any Guarantor
hereunder except to the extent the Guaranteed Obligations have been paid in full
in cash. Each Guarantor waives any defense arising out of any such election by
the Creditors, even though such election operates to impair or extinguish any
right of reimbursement or subrogation or other right or remedy of such Guarantor
against the Borrower or any other person or any security.
(b) Each Guarantor waives all presentments, demands for
performance, protests and notices, including, without limitation, notices of
nonperformance, notices of protest, notices of dishonor, notices of acceptance
of this Guaranty, and notices of the existence, creation or incurring of new or
additional indebtedness. Each Guarantor assumes all responsibility for being and
keeping itself informed of the Borrower's financial condition and assets, and of
all other circumstances bearing upon the risk of nonpayment of the Guaranteed
Obligations and the nature, scope and extent of the risks which such Guarantor
assumes and incurs hereunder, and agrees that the Creditors shall have no duty
to advise any Guarantor of information known to them regarding such
circumstances or risks.
(c) Until such time as the Guaranteed Obligations have
been paid in full in cash, each Guarantor hereby waives all contractual,
statutory or common law rights of reimbursement, contribution or indemnity from
the Borrower or any other Guarantor which it may at any time otherwise have as a
result of this Guaranty.
11. If and to the extent that any Guarantor makes any
payment to any Creditor or to any other Person pursuant to or in respect of this
Guaranty, any claim which such Guarantor may have against the Borrower by reason
thereof shall be subject and subordinate to the prior payment in full of the
Guaranteed Obligations to each Creditor. Prior to the transfer by any Guarantor
of any note or negotiable instrument evidencing any indebtedness of the Borrower
to such Guarantor, such Guarantor shall xxxx such note or negotiable instrument
with a legend that the same is subject to this subordination.
12. Each Guarantor covenants and agrees that on and after
the date hereof and until the termination of the Total Commitment and all
Permitted Hedging Agreements and when no Note or Letter of Credit remains
outstanding and all other Guaranteed Obligations have been paid in full (other
than those arising from indemnities for which no request has been made), such
Guarantor shall take, or will refrain from taking, as the case may be, all
actions that are necessary to be taken or not taken so that no violation of any
provision, covenant or agreement contained in Section 7 or 8 of the Credit
Agreement, and so that no Event of Default, is caused by the actions of such
Guarantor or any of its Subsidiaries.
13. The Guarantors hereby jointly and severally agree to
pay all reasonable and actual out-of-pocket costs and expenses of each Creditor
in connection with the enforcement of this Guaranty and the protection of such
Creditor's rights hereunder, and in connection with any amendment, waiver or
consent relating hereto (including, without limitation, the reasonable and
actual fees and disbursements of counsel employed by the Administrative Agent or
any of the other Creditors). Any reference in this Guaranty, to "fees of
counsel" shall mean the actual and
6
reasonable fees of counsel incurred at customary and reasonable rates in the
jurisdiction in which such counsel performed its services, not pursuant to any
statutory formula or percentage calculation.
14. This Guaranty shall be binding upon each Guarantor
and its successors and assigns and shall inure to the benefit of the Creditors
and their successors and assigns.
15. Neither this Guaranty nor any provision hereof may be
changed, waived, discharged or terminated in any manner whatsoever unless in
writing duly signed by the Administrative Agent (with the consent of (x) the
Required Lenders or, to the extent required by Section 12.12 of the Credit
Agreement, all of the Lenders, at all times prior to the time at which all
Credit Document Obligations have been paid in full, or (y) the holders of at
least a majority of the outstanding Hedging Obligations at all times after the
time at which all Credit Document Obligations have been paid in full) and each
Guarantor directly affected thereby (it being understood that the addition or
release of any Guarantor hereunder shall not constitute a change, waiver,
discharge or termination affecting any Guarantor other than the Guarantor so
added or released); provided, that any change, waiver, modification or variance
affecting the rights and benefits of a single Class (as defined below) of
Creditors (and not all Creditors in a like or similar manner) shall require the
written consent of the Requisite Creditors (as defined below) of such Class. For
the purpose of this Guaranty, the term "Class" shall mean each class of
Creditors, i.e., whether (i) the Lender Creditors as holders of the Credit
Document Obligations or (ii) the Hedging Creditors as holders of the Hedging
Obligations. For the purpose of this Guaranty, the term "Requisite Creditors" of
any Class shall mean each of (i) with respect to the Credit Document
Obligations, the Required Lenders and (ii) with respect to the Hedging
Obligations, the holders of at least a majority of all obligations outstanding
from time to time under the Permitted Hedging Agreements.
16. Each Guarantor acknowledges that an executed (or
conformed) copy of each of the Credit Documents and the Permitted Hedging
Agreements has been made available to its principal executive officers and such
officers are familiar with the contents thereof.
17. In addition to any rights now or hereafter granted
under applicable law (including, without limitation, Section 151 of the New York
Debtor and Creditor Law) and not by way of limitation of any such rights, upon
the occurrence and during the continuance of an Event of Default (such term to
mean and include any "Event of Default" as defined in the Credit Agreement and
any payment default under any Permitted Hedging Agreement and shall in any
event, include, without limitation, any payment default on any of the Guaranteed
Obligations continuing after any applicable grace period), each Creditor is
hereby authorized at any time or from time to time, without notice to any
Guarantor or to any other Person, any such notice being expressly waived, to set
off and to appropriate and apply any and all deposits (general or special) and
any other indebtedness at any time held or owing by such Creditor to or for the
credit or the account of such Guarantor, against and on account of the
obligations and liabilities of such Guarantor to such Creditor under this
Guaranty, irrespective of whether or not such Creditor shall have made any
demand hereunder and although said obligations, liabilities, deposits or claims,
or any of them, shall be contingent or unmatured. Each Creditor acknowledges and
agrees that the provisions of this Section 17 are subject to the sharing
provisions set forth in Section 12.06(b) of the Credit Agreement.
7
18. All notices and other communications provided for
hereunder shall be in writing (including telegraphic, telex, facsimile
transmission or cable communication) and mailed, telegraphed, telexed,
telecopied, cabled or delivered (including by way of overnight courier) (i) in
the case of any Lender Creditor, as provided in the Credit Agreement, (ii) in
the case of any Guarantor, at its address set forth opposite its signature below
and (iii) in the case of any Hedging Creditor, at such address as such Hedging
Creditor shall have specified in writing to the Guarantor; or, in any case, at
such other address as shall be designated by any party in a written notice to
the other parties hereto. All such notices and communications shall be deemed to
have been duly given or made (i) in the case of any Creditor, when received and
(ii) in the case of any Guarantor, when delivered to such Guarantor in any
manner required or permitted hereunder.
19. If claim is ever made upon any Creditor for repayment
or recovery of any amount or amounts received in payment or on account of any of
the Guaranteed Obligations and any of said Creditors repays all or part of said
amount by reason of (i) any judgment, decree or order of any court or
administrative body having jurisdiction over such Creditor or any of its
property or (ii) any settlement or compromise of any such claim effected by such
Creditor with any such claimant (including the Borrower), then and in such event
each Guarantor agrees that any such judgment, decree, order, settlement or
compromise shall be binding upon such Guarantor, notwithstanding any revocation
hereof or the cancellation of any Note or any Permitted Hedging Agreement or
other instrument evidencing any liability of the Borrower, and such Guarantor
shall be and remain liable to such Creditor hereunder for the amount so repaid
or recovered to the same extent as if such amount had never originally been
received by any such Creditor.
20. (a) This Guaranty and the rights and obligations of
the Creditors and of the undersigned hereunder shall be governed by and
construed in accordance with the law of the state of New York.
(b) Any legal action or proceeding with respect to this
Guaranty or any other Credit Document to which any Guarantor is a party may be
brought in the courts of the state of New York or of the United States of
America for the Southern District of New York, and, by execution and delivery of
this Guaranty, each Guarantor hereby irrevocably accepts for itself and in
respect of its property, generally and unconditionally, the jurisdiction of the
aforesaid courts. Each Guarantor further irrevocably consents to the service of
process out of any of the aforementioned courts in any such action or proceeding
by the mailing of copies thereof by registered or certified mail, postage
prepaid, to such Guarantor at its address set forth opposite its signature
below, such service to become effective 30 days after such mailing. Each
Guarantor hereby irrevocably waives any objection to such service of process and
further irrevocably waives and agrees not to plead or claim in any action or
proceeding commenced hereunder or under any other credit document to which such
Guarantor is a party that service of process was in any way invalid or
ineffective. Each Guarantor hereby irrevocably appoints the Borrower as its
agent for service of process in respect of any such action or proceeding.
Nothing herein shall affect the right of any of the creditors to serve process
in any other manner permitted by law or to commence legal proceedings or
otherwise proceed against any Guarantor in any other jurisdiction.
8
(c) Each Guarantor hereby irrevocably waives any
objection which it may now or hereafter have to the laying of venue of any of
the aforesaid actions or proceedings arising out of or in connection with this
Guaranty or any other Credit Document brought in the courts referred to in
clause (b) above and hereby further irrevocably waives and agrees not to plead
or claim in any such court that such action or proceeding brought in any such
court has been brought in an inconvenient forum.
(d) Each Guarantor hereby irrevocably waives all rights
to a trial by jury in any action, proceeding or counterclaim arising out of or
relating to this Guaranty, the other Credit Documents or the transactions
contemplated hereby or thereby.
21. In the event that all of the capital stock or other
equity interests of one or more Guarantors is sold or otherwise disposed of (to
a Person other than the Borrower or a Subsidiary thereof) or liquidated in
compliance with the requirements of Section 8.02 of the Credit Agreement (or
such sale, disposition or liquidation has been approved in writing by the
Required Lenders (or all Lenders if required by Section 12.12 of the Credit
Agreement)), such Guarantor shall be released from this Guaranty and this
Guaranty shall, as to each such Guarantor or Guarantors, terminate, and have no
further force or effect (it being understood and agreed that the sale of one or
more Persons that own, directly or indirectly, all of the capital stock or other
equity interests of any Guarantor shall be deemed to be a sale of such Guarantor
for the purposes of this Section 21).
22. All payments made by any Guarantor hereunder will be
made without setoff, counterclaim or other defense.
23. This Guaranty may be executed in any number of
counterparts and by the different parties hereto on separate counterparts, each
of which when so executed and delivered shall be an original, but all of which
shall together constitute one and the same instrument. A set of counterparts
executed by all the parties hereto shall be lodged with the Borrower and the
Administrative Agent.
24. It is understood and agreed that any Subsidiary of
the Borrower that is required to execute a counterpart of this Guaranty pursuant
to the Credit Agreement shall automatically become a Guarantor hereunder by
executing a counterpart hereof and delivering the same to the Administrative
Agent.
25. Notwithstanding anything else to the contrary in this
Guaranty, the Creditors agree that this Guaranty may be enforced only by the
action of the Administrative Agent acting upon the instructions of the Required
Lenders (or, after the date on which all Credit Document Obligations have been
paid in full, the holders of at least a majority of the outstanding Hedging
Obligations), and that no other Creditor shall have any right individually to
seek to enforce or to enforce this Guaranty, it being understood and agreed that
such rights and remedies may be exercised by the Administrative Agent or the
holders of at least a majority of the outstanding Hedging Obligations, as the
case may be, for the benefit of the Creditors upon the terms of this Guaranty.
The Creditors further agree that this Guaranty may not be enforced against any
director, officer, employee, or stockholder of any Guarantor (except to the
extent such stockholder is also a Guarantor hereunder). It is understood that
the agreement in this Section 25
9
is among and solely for the benefit of the Lenders and that if the Required
Lenders so agree (without requiring the consent of any Guarantor), this Guaranty
may be directly enforced by any Creditor.
26. Each Guarantor hereby confirms that it is its
intention that this Guaranty not constitute a fraudulent transfer or conveyance
for purposes of any bankruptcy, insolvency or similar law, the Uniform
Fraudulent Conveyance Act or any similar Federal, state of foreign law. To
effectuate the foregoing intention, each Guarantor hereby irrevocably agrees
that the Guaranteed Obligations shall be limited to the maximum amount as will,
after giving effect to such maximum amount and all other (contingent or
otherwise) liabilities of such Guarantor that are relevant under such laws,
result in the Guaranteed Obligations of such Guarantor in respect of such
maximum amount not constituting a fraudulent transfer or conveyance.
* * *
10
IN WITNESS WHEREOF, each Guarantor has caused this Guaranty to
be executed and delivered as of the date first above written.
Address:
P.O. Box 2959 X.X. XXXXXXXX TOBACCO COMPANY, as a
000 X. Xxxx Xxxxxx Xxxxxxxxx
Xxxxxxx Xxxxx, XX 00000
Attn: Xxx Xxxxx
By: /s/ Xxxxxx X. Xxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Senior Vice President and Controller
RJR ACQUISITION CORP., as a Guarantor
By: /s/ Xxxx X. Xxxx
----------------------------------------
Name: Xxxx X. Xxxx
Title: Vice President and Treasurer
Accepted and Agreed to:
JPMORGAN CHASE BANK (f/k/a The Chase Manhattan Bank),
as Administrative Agent for the Lenders
By: /s/ Xxxxxx X. Xxxxx
---------------------------------
Name: Xxxxxx X. Xxxxx
Title: Managing Director
