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EXHIBIT 4.8
GUARANTY OF BELDEN WIRE & CABLE COMPANY,
CABLE SYSTEMS HOLDING COMPANY AND CABLE SYSTEMS
INTERNATIONAL INC.
CONFORMED COPY
SUBSIDIARY GUARANTY
THIS GUARANTY (this "GUARANTY") dated as of September 1, 1999 is made
by the undersigned (each, a "GUARANTOR"), in favor of the holders from time to
time of the 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
September 1, 1999 (the Note Purchase Agreement as amended, supplemented,
restated or otherwise modified from time to time in accordance with its terms
and in effect, the "NOTE PURCHASE AGREEMENT");
THIS GUARANTY (this "GUARANTY") dated as of September 1, 1999 is made by the
undersigned (each, a "GUARANTOR"), in favor of the holders from time to time of
the 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
September 1, 1999 (the Note Purchase Agreement 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 $125,000,000 aggregate principal amount of Notes (as defined in the
Note Purchase Agreement) to the Purchasers;
WHEREAS, the Company directly or indirectly owns all of the issued and
outstanding capital stock of each Guarantor and, by virtue of such ownership and
otherwise, each Guarantor will derive substantial benefits from the purchase by
the initial Holders of the Company's Notes;
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WHEREAS, it is a condition precedent to the obligation of the initial
Holders to purchase the Notes that each Guarantor shall have executed and
delivered this Guaranty to the Holders; and
WHEREAS, each 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
each Guarantor, and of the purchase of the Company's Notes by the initial
Holders, and for other good and valuable consideration, the receipt and
sufficiency of which are acknowledged, each 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 Guarantors, jointly and severally,
unconditionally and irrevocably guarantee 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 Notes or the Note Purchase
Agreement, when and as the same shall become due and payable (whether at stated
maturity or by prepayment or by declaration or otherwise) in accordance with the
terms of the Notes and the Note Purchase Agreement (the 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 each Guarantor that all Notes held by such Holder or all
outstanding Notes are subject to acceleration under Section 12.1 of the Note
Purchase Agreement, the Guarantors (jointly and severally), 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 Guarantors
(jointly and severally), 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 each Guarantor under this Guaranty is,
however, limited to the Fair Net Worth of such Guarantor, as of the date of any
determination thereof, less $20,000. For purposes of this Guaranty, the "Fair
Net Worth" of a Guarantor shall mean an amount equal to the fair saleable value
of such Guarantor's assets and all rights of contribution, indemnification and
exoneration, net of all obligations of such Guarantor owed to third parties
(other than such Guarantor's liabilities under
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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
each Guarantor under this Guaranty shall be primary, absolute and unconditional
obligations of such Guarantor, shall not be subject to any counterclaim,
set-off, deduction, diminution, abatement, recoupment, suspension, deferment,
reduction or defense based upon any claim such 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 such 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;
(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 such 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, a Guarantor or to any
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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 a Guarantor
into or with any other corporation, or any sale, lease or transfer of
any of the assets of the Company or a 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 a Guarantor, or any termination of such relationship;
(j) any release or discharge, by operation of law, of a
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 that might otherwise
constitute a legal or equitable defense or discharge of the liabilities
of a guarantor or surety or that might otherwise limit recourse against
a Guarantor.
Notwithstanding any other provision contained in this Guaranty, the Guarantors'
joint and several liability with respect to the principal amount of the Notes
shall be no greater than the liability of the Company with respect thereto.
SECTION 4. Full Recourse Obligations. The obligations of each
Guarantor set forth herein constitute the full recourse obligations of such
Guarantor enforceable against it to the full extent of all its assets and
properties.
SECTION 5. Waiver. Each 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 such Guarantor of the incurrence of any of the
Obligations, notice to such 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 such Guarantor, (c) presentment to or demand of payment from the
Company or such 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
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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 that might otherwise constitute a legal or equitable discharge,
release or defense of a guarantor or surety or that might otherwise limit
recourse against such Guarantor.
SECTION 6. Subrogation, Contribution, Reimbursement or Indemnity. Until
one year and one day after all Obligations have been indefeasibly paid in full,
each Guarantor agrees not to take any action pursuant to any rights that 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,
each 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 that 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 a Guarantor on
account of any of the rights waived in this paragraph, such amount shall be held
by such Guarantor in trust, segregated from other funds of such Guarantor, and
shall, forthwith upon receipt by such 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.
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 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, each
Guarantor agrees that, for purposes of this Guaranty and its obligations
hereunder, the maturity of the principal amount of the 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 Guarantors
(jointly and severally) 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 each Guarantor contained herein shall continue in
full force and effect and shall
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not be discharged until such time as all of the Obligations shall be paid and
performed in full and all of the agreements of each Guarantor hereunder shall be
duly paid and performed in full.
SECTION 9. Representations and Warranties. Each Guarantor represents
and warrants to each Holder that:
(a) such 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) such 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 such 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 such Guarantor and will not result in or
require the creation or imposition of any Lien on any of the
properties, revenues or assets of such Guarantor pursuant to the
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 such Guarantor, threatened by or against such Guarantor or
any of its properties or revenues (i) with respect to this Guaranty or
any of the transactions contemplated hereby or (ii) that could
reasonably be expected to have a material adverse effect upon the
business, operations or financial condition of such 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 such Guarantor or of any
securities issued by such Guarantor; and
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(h) after giving effect to the transactions contemplated
herein, (i) the present fair salable value of the assets of such
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) such Guarantor has received reasonably equivalent
value for executing and delivering this Guaranty, (iii) the property
remaining in the hands of such Guarantor is not an unreasonably small
capital, and (iv) such 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
a Guarantor, at:
[Name of Guarantor]
c/o Belden Inc.
0000 Xxxxxxx Xxxxxxxxx
Xxxxx 000
Xx. Xxxxx, XX 00000
or at such other address as a Guarantor shall from time to time designate in
writing to the Holders or on a counterpart signature page hereto. Any notice so
addressed shall be deemed to be given when actually received.
SECTION 11. Survival. All warranties, representations and covenants
made by each 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 such Guarantor hereunder.
SECTION 12. Submission to Jurisdiction. Each Guarantor irrevocably
submits to the jurisdiction of the courts of the State of Illinois and of the
courts of the United States of America having jurisdiction in the State of
Illinois for the purpose of any suit, action or proceeding in any such court
with respect to, or arising out of, this Guaranty, the Note Purchase Agreement
or the Notes. Each Guarantor consents to process being served in any such suit,
action or proceeding by mailing a copy thereof by registered or certified mail,
postage prepaid, return receipt requested, to the address of such Guarantor
specified herein or designated pursuant hereto or on a counterpart signature
page hereto. Each Guarantor agrees that such service upon receipt (i) shall be
deemed in every respect effective service of process upon it in any such suit,
action or proceeding and (ii) shall, to the fullest extent permitted by law, be
taken and held to be valid personal service upon and personal delivery to such
Guarantor.
SECTION 13. Miscellaneous. Any provision of this Guaranty that 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
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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, each 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,
each 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 each 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, each Guarantor has caused this Guaranty to be duly
executed as of the day and year first above written.
BELDEN WIRE & CABLE COMPANY
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Assistant Treasurer
CABLE SYSTEMS HOLDING COMPANY
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Assistant Treasurer
CABLE SYSTEMS INTERNATIONAL INC.
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Assistant Treasurer
