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SERIES 1997-A GUARANTY
THIS GUARANTY (this "Guaranty") dated August 11, 1997 is made by
Xxxxxx Wire & Cable Company, a Delaware corporation (the "Guarantor"), in
favor of the holders from time to time of the Series 1997-A Notes
hereinafter referred to, including each purchaser named in the Note
Purchase Agreement hereinafter referred to, and their respective successors
and assigns (collectively, the "Holders" and each individually, a
"Holder").
W I T N E S S E T H:
WHEREAS, Xxxxxx Inc., a Delaware corporation (the "Company"), and the
initial Holders have entered into a Note Purchase Agreement dated as of
August 1, 1997 (as amended, supplemented, restated or otherwise modified
from time to time in accordance with its terms and in effect, the "Note
Purchase Agreement");
WHEREAS, the Note Purchase Agreement contemplates the issuance by the
Company of up to $200,000,000 aggregate principal amount of Notes (as
defined in the Note Purchase Agreement) in series and the Company has
authorized the issuance and sale of $75,000,000 aggregate principal amount
of Series 1997-A Notes to the Purchasers;
WHEREAS, the Company owns all of the issued and outstanding capital
stock of the Guarantor and, by virtue of such ownership and otherwise, the
Guarantor will derive substantial benefits from the purchase by the Holders
of the Company's Series 1997-A Notes;
WHEREAS, it is a condition precedent to the obligation of the Holders
to purchase the Series 1997-A Notes that the Guarantor shall have executed
and delivered this Guaranty to the Holders and it is and will be a
condition to the sale of subsequent series of the Notes that a
substantially identical Guaranty run in favor of the holders of such
subsequent series of Notes; and
WHEREAS, the Guarantor desires to execute and deliver this Guaranty to
satisfy the conditions described in the preceding paragraph;
NOW, THEREFORE, in consideration of the premises and other benefits to
the Guarantor, and of the purchase of the Company's Series 1997-A Notes by
the Holders, and for other good and valuable consideration, the receipt and
sufficiency of which are acknowledged, the Guarantor makes this Guaranty as
follows:
SECTION 1. Definitions. Any capitalized terms not otherwise herein
defined shall have the meanings attributed to them in the Note Purchase
Agreement.
SECTION 2. Guaranty. The Guarantor unconditionally and irrevocably
guarantees to the Holders the due, prompt and complete payment by the
Company of the principal of, Make-Whole Amount, if any, and interest on,
and each other amount due under, the Series 1997-A Notes or the Note
Purchase Agreement, when and as the same shall become due and payable
(whether at stated maturity or by required or optional prepayment or by
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declaration or otherwise) in accordance with the terms of the Series 1997-A
Notes and the Note Purchase Agreement (the Series 1997-A Notes and the Note
Purchase Agreement being sometimes hereinafter collectively referred to as
the "Note Documents" and the amounts payable by the Company under the Note
Documents, and all other monetary obligations of the Company thereunder,
being sometimes collectively hereinafter referred to as the "Obligations").
This Guaranty is a guaranty of payment and not just of collectibility and
is in no way conditioned or contingent upon any attempt to collect from the
Company or upon any other event, contingency or circumstance whatsoever.
If for any reason whatsoever the Company shall fail or be unable duly,
punctually and fully to pay such amounts as and when the same shall become
due and payable and any Holder shall notify the Guarantor that all Series
1997-A Notes held by such Holder or all outstanding Series 1997-A Notes are
subject to acceleration under Section 12.1 of the Note Purchase Agreement,
the Guarantor, without demand, presentment, protest or notice of any kind,
will forthwith pay or cause to be paid such amounts to the Holders under
the terms of such Note Documents, in lawful money of the United States, at
the place specified in the Note Purchase Agreement, or perform or comply
with the same or cause the same to be performed or complied with, together
with interest (to the extent provided for under such Note Documents) on any
amount due and owing from the Company. The Guarantor, promptly after
demand, will pay to the Holders the reasonable costs and expenses of
collecting such amounts or otherwise enforcing this Guaranty, including,
without limitation, the reasonable fees and expenses of counsel. The right
of recovery against the Guarantor under this Guaranty is, however, limited
to the Fair Net Worth of the Guarantor, as of the date of any determination
thereof, less $20,000. For purposes of this Guaranty, the "Fair Net Worth"
of the Guarantor shall mean an amount equal to the fair saleable value of
the Guarantor's assets, net of all obligations of the Guarantor owed to
third parties (other than the Guarantor's liabilities under this Guaranty),
including all liabilities, whether fixed or contingent, direct or indirect,
disputed or undisputed, secured or unsecured, and whether or not required
to be reflected on a balance sheet prepared in accordance with generally
accepted accounting principles.
SECTION 3. Guarantor's Obligations Unconditional. The obligations of
the Guarantor under this Guaranty shall be primary, absolute and
unconditional obligations of the Guarantor, shall not be subject to any
counterclaim, set-off, deduction, diminution, abatement, recoupment,
suspension, deferment, reduction or defense based upon any claim the
Guarantor or any other person may have against the Company or any other
person, and to the full extent permitted by applicable law shall remain in
full force and effect without regard to, and shall not be released,
discharged or in any way affected by, any circumstance or condition
whatsoever (whether or not the Guarantor or the Company shall have any
knowledge or notice thereof), including:
(a) any termination, amendment or modification of or deletion
from or addition or supplement to or other change in any of the Note
Documents or any other instrument or agreement applicable to any of
the parties to any of the Note Documents;
(b) any furnishing or acceptance of any security, or any release
of any security, for the Obligations, or the failure of any security
or the failure of any person to perfect any interest in any
collateral;
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(c) any failure, omission or delay on the part of the Company to
conform or comply with any term of any of the Note Documents or any
other instrument or agreement referred to in paragraph (a) above,
including, without limitation, failure to give notice to the Guarantor
of the occurrence of a "Default" or an "Event of Default" under any
Note Document;
(d) any waiver of the payment, performance or observance of any
of the obligations, conditions, covenants or agreements contained in
any Note Document, or any other waiver, consent, extension,
indulgence, compromise, settlement, release or other action or
inaction under or in respect of any of the Note Documents or any other
instrument or agreement referred to in paragraph (a) above or any
obligation or liability of the Company, or any exercise or non-
exercise of any right, remedy, power or privilege under or in respect
of any such instrument or agreement or any such obligation or
liability;
(e) any failure, omission or delay on the part of any of the
Holders to enforce, assert or exercise any right, power or remedy
conferred on such Holder in this Guaranty, or any such failure,
omission or delay on the part of such Holder in connection with any
Note Document, or any other action on the part of such Holder;
(f) any voluntary or involuntary bankruptcy, insolvency,
reorganization, arrangement, readjustment, assignment for the benefit
of creditors, composition, receivership, conservatorship,
custodianship, liquidation, marshaling of assets and liabilities or
similar proceedings with respect to the Company, the Guarantor or to
any other person or any of their respective properties or creditors,
or any action taken by any trustee or receiver or by any court in any
such proceeding;
(g) any discharge, termination, cancellation, frustration,
irregularity, invalidity or unenforceability, in whole or in part, of
any of the Note Documents or any other agreement or instrument
referred to in paragraph (a) above or any term hereof;
(h) any merger or consolidation of the Company or the Guarantor
into or with any other corporation, or any sale, lease or transfer of
any of the assets of the Company or the Guarantor to any other person;
(i) any change in the ownership of any shares of capital stock
of the Company or any change in the corporate relationship between the
Company and the Guarantor, or any termination of such relationship;
(j) any release or discharge, by operation of law, of the
Guarantor from the performance or observance of any obligation,
covenant or agreement contained in this Guaranty; or
(k) any other occurrence, circumstance, happening or event
whatsoever, whether similar or dissimilar to the foregoing, whether
foreseen or unforeseen, and any other circumstance which might
otherwise constitute a legal or equitable defense or discharge of the
liabilities of a guarantor or surety or which might otherwise limit
recourse against the Guarantor.
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Notwithstanding any other provision contained in this Guaranty, the
Guarantor's liability with respect to the principal amount of the Series
1997-A Notes shall be no greater than the liability of the Company with
respect thereto.
SECTION 4. Full Recourse Obligations. The obligations of the
Guarantor set forth herein constitute the full recourse obligations of the
Guarantor enforceable against it to the full extent of all its assets and
properties.
SECTION 5. Waiver. The Guarantor unconditionally waives, to the
extent permitted by applicable law, (a) notice of any of the matters
referred to in Section 3, (b) notice to the Guarantor of the incurrence of
any of the Obligations, notice to the Guarantor or the Company of any
breach or default by the Company with respect to any of the Obligations or
any other notice that may be required, by statute, rule of law or
otherwise, to preserve any rights of the Holders against the Guarantor,
(c) presentment to or demand of payment from the Company or the Guarantor
with respect to any amount due under any Note Document or protest for
nonpayment or dishonor, (d) any right to the enforcement, assertion or
exercise by any of the Holders of any right, power, privilege or remedy
conferred in the Note Purchase Agreement or any other Note Document or
otherwise, (e) any requirement of diligence on the part of any of the
Holders, (f) any requirement to exhaust any remedies or to mitigate the
damages resulting from any default under any Note Document, (g) any notice
of any sale, transfer or other disposition by any of the Holders of any
right, title to or interest in the Note Purchase Agreement or in any other
Note Document and (h) any other circumstance whatsoever which might
otherwise constitute a legal or equitable discharge, release or defense of
a guarantor or surety or which might otherwise limit recourse against the
Guarantor.
SECTION 6. Subrogation, Contribution, Reimbursement or Indemnity.
Until one year and one day after all Obligations have been indefeasibly
paid in full, the Guarantor agrees not to take any action pursuant to any
rights which may have arisen in connection with this Guaranty to be
subrogated to any of the rights (whether contractual, under the United
States Bankruptcy Code, as amended, including Section 509 thereof, under
common law or otherwise) of any of the Holders against the Company or
against any collateral security or guaranty or right of offset held by the
Holders for the payment of the Obligations. Until one year and one day
after all Obligations have been indefeasibly paid in full, the Guarantor
agrees not to take any action pursuant to any contractual, common law,
statutory or other rights of reimbursement, contribution, exoneration or
indemnity (or any similar right) from or against the Company which may have
arisen in connection with this Guaranty. So long as the Obligations
remain, if any amount shall be paid by or on behalf of the Company to the
Guarantor on account of any of the rights waived in this paragraph, such
amount shall be held by the Guarantor in trust, segregated from other funds
of the Guarantor, and shall, forthwith upon receipt by the Guarantor, be
turned over to the Holders (duly endorsed by such Guarantor to the Holders,
if required), to be applied against the Obligations, whether matured or
unmatured, in such order as the Holders may determine. The provisions of
this paragraph shall survive the term of this Guaranty and the payment in
full of the Obligations.
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SECTION 7. Effect of Bankruptcy Proceedings, etc. This Guaranty
shall continue to be effective or be automatically reinstated, as the case
may be, if at any time payment, in whole or in part, of any of the sums due
to any of the Holders pursuant to the terms of the Note Purchase Agreement
or any other Note Document is rescinded or must otherwise be restored or
returned by such Holder upon the insolvency, bankruptcy, dissolution,
liquidation or reorganization of the Company or any other person, or upon
or as a result of the appointment of a custodian, receiver, trustee or
other officer with similar powers with respect to the Company or other
person or any substantial part of its property, or otherwise, all as though
such payment had not been made. If an event permitting the acceleration of
the maturity of the principal amount of the Series 1997-A Notes shall at
any time have occurred and be continuing, and such acceleration shall at
such time be prevented by reason of the pendency against the Company or any
other person of a case or proceeding under a bankruptcy or insolvency law,
the Guarantor agrees that, for purposes of this Guaranty and its
obligations hereunder, the maturity of the principal amount of the Series
1997-A Notes and all other Obligations shall be deemed to have been
accelerated with the same effect as if any Holder had accelerated the same
in accordance with the terms of the Note Purchase Agreement or other
applicable Note Document, and the Guarantor shall forthwith pay such
principal amount, Make-Whole Amount, if any, and interest thereon and any
other amounts guaranteed hereunder without further notice or demand.
SECTION 8. Term of Agreement. This Guaranty and all guaranties,
covenants and agreements of the Guarantor contained herein shall continue
in full force and effect and shall not be discharged until such time as all
of the Obligations shall be paid and performed in full and all of the
agreements of the Guarantor hereunder shall be duly paid and performed in
full.
SECTION 9. Representations and Warranties. The Guarantor represents
and warrants to each Holder that:
(a) the Guarantor is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware
and has the corporate power and authority to own and operate its
property, to lease the property it operates as lessee and to conduct
the business in which it is currently engaged;
(b) the Guarantor has the corporate power and authority and the
legal right to execute and deliver, and to perform its obligations
under, this Guaranty, and has taken all necessary corporate action to
authorize its execution, delivery and performance of this Guaranty;
(c) this Guaranty constitutes a legal, valid and binding
obligation of the Guarantor enforceable in accordance with its terms,
except as enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement
of creditors' rights generally and by general equitable principles
(regardless of whether such enforceability is considered in a
proceeding in equity or at law);
(d) the execution, delivery and performance of this Guaranty
will not violate any provision of any requirement of law or material
contractual obligation of the Guarantor and will not result in or
require the creation or imposition of any Lien on any of the
properties, revenues or assets of the Guarantor pursuant to the
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provisions of any material contractual obligation of such Guarantor or
any requirement of law;
(e) no consent or authorization of, filing with, or other act by
or in respect of, any arbitrator or governmental authority is required
in connection with the execution, delivery, performance, validity or
enforceability of this Guaranty;
(f) no litigation, investigation or proceeding of or before any
arbitrator or governmental authority is pending or, to the knowledge
of the Guarantor, threatened by or against the Guarantor or any of its
properties or revenues (i) with respect to this Guaranty or any of the
transactions contemplated hereby or (ii) which could reasonably be
expected to have a material adverse effect upon the business,
operations or financial condition of the Guarantor and its
subsidiaries taken as a whole;
(g) the execution, delivery and performance of this Guaranty
will not violate any provision of any order, judgment, writ, award or
decree of any court, arbitrator or Governmental Authority, domestic or
foreign, or of the charter or by-laws of the Guarantor or of any
securities issued by the Guarantor; and
(h) after giving effect to the transactions contemplated herein,
(i) the present fair salable value of the assets of the Guarantor is
in excess of the amount that will be required to pay its probable
liability on its existing debts as said debts become absolute and
matured, (ii) the Guarantor has received reasonably equivalent value
for executing and delivering this Guaranty, (iii) the property
remaining in the hands of the Guarantor is not an unreasonably small
capital, and (iv) the Guarantor is able to pay its debts as they
mature
SECTION 10. Notices. All notices under the terms and provisions
hereof shall be in writing, and shall be delivered or sent by telex or
telecopy or mailed by first-class mail, postage prepaid, addressed (a) if
to the Company or any Holder at the address set forth in the Note Purchase
Agreement or (b) if to the Guarantor, at:
Xxxxxx Wire & Cable Company
c/o Belden Inc.
0000 Xxxxxxx Xxxxxxxxx
Xxxxx 000
Xx. Xxxxx, XX 00000
or at such other address as the Guarantor shall from time to time designate
in writing to the Holders. Any notice so addressed shall be deemed to be
given when actually received.
SECTION 11. Survival. All warranties, representations and covenants
made by the Guarantor herein or in any certificate or other instrument
delivered by it or on its behalf hereunder shall be considered to have been
relied upon by the Holders and shall survive the execution and delivery of
this Guaranty, regardless of any investigation made by any of the Holders.
All statements in any such certificate or other instrument shall constitute
warranties and representations by the Guarantor hereunder.
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SECTION 12. Miscellaneous. Any provision of this Guaranty which is
prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and
any such prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other
jurisdiction. To the extent permitted by applicable law, the Guarantor
hereby waives any provision of law that renders any provisions hereof
prohibited or unenforceable in any respect. The terms of this Guaranty
shall be binding upon, and inure to the benefit of, the Guarantor and the
Holders and their respective successors and assigns. No term or provision
of this Guaranty may be changed, waived, discharged or terminated orally,
but only by an instrument in writing signed by the Guarantor and the
Holders. The section and paragraph headings in this Guaranty and the table
of contents are for convenience of reference only and shall not modify,
define, expand or limit any of the terms or provisions hereof, and all
references herein to numbered sections, unless otherwise indicated, are to
sections in this Guaranty. This Guaranty shall in all respects be governed
by, and construed in accordance with, the laws of the State of Illinois,
including all matters of construction, validity and performance.
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IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to be
duly executed as of the day and year first above written.
XXXXXX WIRE & CABLE COMPANY
By: /s/Xxxxxxx X. Xxxxx
Title: Treasurer
