EXHIBIT 10.2
FIRST AMENDMENT TO GUARANTY AGREEMENT
THIS FIRST AMENDMENT TO GUARANTY AGREEMENT (this "Amendment") is made as of
the 28th day of February, 2002, by and among BELDEN COMMUNICATIONS COMPANY and
XXXXXX WIRE & CABLE COMPANY, (the "Guarantors") subsidiaries of Xxxxxx Inc., a
Delaware corporation (the "Borrower") and WACHOVIA BANK, N.A., as Administrative
Agent (the "Agent").
R E C I T A L S:
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The Guarantors have entered into a certain Guaranty Agreement dated as of
June 21, 2001 (the "Guaranty Agreement"). Capitalized terms used in this
Amendment which are not otherwise defined in this Amendment shall have the
respective meanings assigned to them in the Guaranty Agreement.
The Guarantors have requested the Agent to amend the Guaranty Agreement as
more fully set forth herein. The Agent and the Guarantors desire to amend the
Guaranty Agreement upon the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the Recitals and the mutual promises
contained herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Guarantors and the Agent,
intending to be legally bound hereby, agree as follows:
SECTION 1. Recitals. The Recitals are incorporated herein by reference and
shall be deemed to be a part of this Amendment.
SECTION 2. Amendments. The Guaranty Agreement is hereby amended by amending
and restating Section 4 in its entirety to read as follows:
SECTION 4. The Guaranty. Each Guarantor hereby unconditionally
guarantees, jointly and severally, the full and punctual payment when due
(whether at stated maturity, upon acceleration or otherwise) of the
principal of and interest on each Loan made pursuant to the Credit
Agreement, all obligations of the Borrower pursuant to Hedging Agreements
between the Borrower and any Lender, all indemnity obligations of the
Borrower, and all other amounts payable by the Borrower under the Credit
Agreement and the other Loan Documents (all of the foregoing, including
without limitation, interest accruing or that would have accrued thereon
after the filing of a petition in bankruptcy or other insolvency
proceeding, being referred to collectively as the "Guaranteed
Obligations"). Upon failure by the Borrower to pay punctually any such
amount, each Guarantor agrees that it shall forthwith on demand pay the
amount not so paid at the place and in the manner specified in the Credit
Agreement, each Note,
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or the relevant Loan Documents, as the case may be. Each Guarantor
acknowledges and agrees that this is a guarantee of payment when due, and
not of collection, and that this Guaranty may be enforced up to the full
amount of the Guaranteed Obligations without proceeding against the
Borrower, any security for the Guaranteed Obligations, or against any other
party that may have liability on all or any portion of the Guaranteed
Obligations.
SECTION 3. Conditions to Effectiveness. The effectiveness of this Amendment
is subject to the following conditions, unless the Agent waives such conditions:
(a) receipt by the Agent from each of the parties hereto of a duly
executed counterpart of this Amendment signed by such party;
(b) the fact that the representations and warranties of each of the
Guarantors contained in Section 5 of this Amendment shall be true on and as
of the date hereof.
SECTION 4. No Other Amendment. Except for the amendment set forth above,
the text of the Guaranty Agreement shall remain unchanged and in full force and
effect. This Amendment is not intended to effect, nor shall it be construed as,
a novation. The Guaranty Agreement and this Amendment shall be construed
together as a single agreement. Nothing herein contained shall waive, annul,
vary or affect any provision, condition, covenant or agreement contained in the
Guaranty Agreement, except as herein amended, nor affect nor impair any rights,
powers or remedies under the Guaranty Agreement as hereby amended. The Agent
hereby reserves all of its rights and remedies against all parties who may be or
may hereafter become secondarily liable for the repayment of the Guaranteed
Obligations. Each of the Guarantors promises and agrees to perform all of the
requirements, conditions, agreements and obligations under the terms of the
Guaranty Agreement, as heretofore and hereby amended, the Guaranty Agreement, as
amended, being hereby ratified and affirmed. Each of the Guarantors hereby
expressly agree that the Guaranty Agreement, as amended, is in full force and
effect.
SECTION 5. Representations and Warranties. Each Guarantor hereby represents
and warrants to the Agent as follows:
(a) No Default or Event of Default, nor any act, event, condition or
circumstance which with the passage of time or the giving of notice, or
both, would constitute an Event of Default, under the Guaranty Agreement or
any other Loan Document has occurred and is continuing unwaived by the
Lenders on the date hereof.
(b) Each Guarantor has the power and authority to enter into this
Amendment and to do all acts and things as are required or contemplated
hereunder, or thereunder, to be done, observed and performed by it.
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(c) This Amendment has been duly authorized, validly executed and
delivered by one or more authorized officers of each Guarantor and
constitutes legal, valid and binding obligations of each of the Guarantors
enforceable against each of them in accordance with their terms, provided
that such enforceability is subject to general principles of equity.
(d) The execution and delivery of this Amendment and each of the
Guarantor's performance hereunder do not and will not require the consent
or approval of any regulatory authority or governmental authority or agency
having jurisdiction over either Guarantor, nor be in contravention of or in
conflict with the articles of incorporation or bylaws of either of the
Guarantors, or the provision of any statute, or any judgment, order or
indenture, instrument, agreement or undertaking, to which either of the
Guarantors is party or by which either of the Guarantors' assets or
properties are or may become bound.
SECTION 6. Counterparts. This Amendment may be executed in multiple
counterparts, each of which shall be deemed to be an original and all of which,
taken together, shall constitute one and the same agreement.
SECTION 7. Governing Law. This Amendment shall be construed in accordance
with and governed by the laws of the State of Georgia.
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IN WITNESS WHEREOF, each Guarantor and the Administrative Agent have caused
this Amendment to be duly executed by its authorized officer as of the day and
year first above written.
BELDEN COMMUNICATIONS COMPANY
By: /s/ Xxxxxxx X. Xxxxxxx (SEAL)
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Name: Xxxxxxx X. Xxxxxxx
Title: Treasurer
BELDEN WIRE & CABLE COMPANY
By: /s/ Xxxxxxx X. Xxxxxxx (SEAL)
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Name: Xxxxxxx X. Xxxxxxx
Title: Treasurer
WACHOVIA BANK, N.A.,
as Administrative Agent
By: /s/ Xxxxx X. Xxxx
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Name: Xxxxx X. Xxxx
Title: Vice President
Consented and agreed to by:
XXXXXX INC.
/s/ Xxxxxxx X. Xxxxxxx (SEAL)
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Name: Xxxxxxx X. Xxxxxxx
Title: Treasurer
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