EXHIBIT 3
GUARANTEE
Guarantee, dated as of July 1, 1997, by and between Xxxx Group, Inc., a
Delaware corporation (the "Company") and Fremont Partners, L.P., a Delaware
limited partnership ("Guarantor").
WHEREAS, each of Fremont Acquisition Company, LLC, a Delaware limited
liability company ("Parent"), and Xxxx Acquisition Corporation, a Delaware
corporation (the "Purchaser"), is a direct or indirect, wholly-owned subsidiary
of Guarantor; and
WHEREAS, the Company, Parent, and the Purchaser have entered into an
Agreement and Plan of Merger (the "Merger Agreement") of even date herewith; and
WHEREAS, upon the terms and subject to the conditions set forth in the
Merger Agreement, the Purchaser will make a cash tender offer (the "Offer") to
acquire all shares of the issued and outstanding common stock, $.50 par value,
of the Company (the "Company Common Stock"), including the associated Common
Stock Purchase Rights issued pursuant to the Rights Agreement dated as of July
25, 1995, between the Company and The First National Bank of Boston, and all
shares of the issued and outstanding Class B Preferred Stock, par value $.50 per
share, Series D (the "Series D Shares"; the Company Common Stock and the Series
D Shares being collectively referred to herein as the "Shares"), for $5.40 per
share of Company Common Stock and $12.50 per Series D Shares or such higher
price as may be paid in the Offer, in each case net to the seller in cash; and
WHEREAS, as an inducement to the Company to enter into the Merger Agreement,
the Guarantor has agreed to enter into this agreement;
NOW THEREFORE, in consideration of the foregoing and the mutual covenants
and agreements herein contained, and intending to be legally bound hereby, the
Company and Guarantor hereby agree as follows:
1. Guarantor hereby unconditionally and irrevocably guarantees, as primary
obligor and not merely as surety, for the benefit of the Company the performance
of all obligations of Parent or the Purchaser pursuant to the Merger Agreement.
2. Guarantor covenants that this Guarantee will not be discharged except by
complete performance of the obligations contained in this Guarantee. This
Guarantee shall not be affected by, and shall remain in full force and effect
notwithstanding, any bankruptcy, insolvency, liquidation, or reorganization of
Parent or the Purchaser or Guarantor.
3. Guarantor agrees to pay, on demand, and to save the Company harmless
against liability for, any and all costs and expenses (including reasonable fees
and disbursements of counsel) incurred or expended by the Company in connection
with the enforcement of or preservation of any rights under this Guarantee.
4. Guarantor hereby represents, warrants and covenants to the Company as
follows:
a. Guarantor is a limited partnership duly organized and validly
existing under the laws of the State of Delaware. Guarantor has the
necessary power and authority to own and operate its properties and assets
and to carry on its business as currently conducted.
b. Guarantor has all requisite legal power and authority to enter into
this Guarantee. The Guarantor has all requisite legal power and authority to
carry out and perform its obligations under the terms of this Guarantee. The
Guarantee constitutes the valid and binding obligation of Guarantor,
enforceable against it in accordance with its terms, except as enforcement
may be limited by bankruptcy, insolvency, moratorium, reorganization or
other laws or equitable principles relating to or affecting creditors'
rights generally.
c. All partnership action on the part of Guarantor and its general
partner and limited partners necessary to authorize the execution, delivery
and performance of this Guarantee has been taken.
d. The Guarantor has funds available to it sufficient to purchase, or
cause the purchase of, the Shares in accordance with the terms of the Merger
Agreement and to pay, or cause to be paid, all amounts due (or which will,
as a result of the transactions contemplated by the Merger Agreement, become
due) in respect of any indebtedness of the Company for money borrowed
outstanding as of the date of the consummation of the Offer (as defined in
the Merger Agreement), a schedule of which is attached as Schedule 3.4 to
the Disclosure Schedule to the Merger Agreement.
5. This Guarantee shall be deemed to be a contract under the laws of the
State of Delaware and shall for all purposes be governed by and construed in
accordance with the laws of such State.
6. This Guarantee shall terminate and be of no further force or effect upon
the consummation of the purchase by the Purchaser, Parent or any of their
respective affiliates of any Shares pursuant to the Offer.
IN WITNESS WHEREOF, each of the Company and Guarantor have caused this
Guarantee to be executed on its behalf by its officers thereunto duly
authorized, all as on the date first above written.
XXXX GROUP, INC.
By: /s/ D. Xxxxxx Xxxxxxxxxx
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Name: D. Xxxxxx Xxxxxxxxxx
Title: President and CEO
FREMONT PARTNERS, L.P.
By: FREMONT ADVISORS,
L.L.C., its General Partner
By: /s/ Xxx Xxxxxxxx
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Name: Xxx Xxxxxxxx
Title: Managing Director
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