EXHIBIT 10.27
GUARANTY AGREEMENT
THIS GUARANTY AGREEMENT (this "Guaranty") is made as of the 21st day of
June, 2001, by each of the subsidiaries of Xxxxxx Inc., a Delaware corporation
(the "Borrower") listed on Schedule I attached hereto (each a "Guarantor" and
collectively the "Guarantors") in favor of the Administrative Agent, for the
ratable benefit of the Lenders, under the Credit Agreement referred to below.
W I T N E S S E T H:
WHEREAS, the Borrower, Wachovia Bank, N.A., as Administrative Agent
(the "Administrative Agent"), and the banks and lending institutions from time
to time that are lenders thereunder ("Lenders") have entered into a certain
Credit Agreement dated as of June 21, 2001 (as the same may hereafter be amended
or supplemented from time to time, the "Credit Agreement") providing, subject to
the terms and conditions thereof, for Loans to be made by the Lenders to or for
the account of the Borrower;
WHEREAS, it is a requirement of the Credit Agreement that the
Guarantors execute and deliver this Guaranty whereby the Guarantors shall
guarantee the payment when due of all principal, interest, fees, indemnity
obligations, and all other amounts that shall be at any time payable by the
Borrower under the Credit Agreement, the Notes, and the other Loan Documents;
WHEREAS, in consideration of the financial and other support that the
Borrower has provided, and such financial and other support as the Borrower may
in the future provide, to the Guarantors, and in order to induce the
Administrative Agent and the Lenders to enter into the Credit Agreement and
extend credit to the Borrower thereunder, the Guarantors are willing to
guarantee the obligations of the Borrower under the Credit Agreement, the Notes,
and the other Loan Documents;
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
SECTION 1. Definitions. Terms defined in the Credit Agreement and not
otherwise defined herein have, as used herein, the respective meanings provided
for therein.
SECTION 2. Representations and Warranties. Each Guarantor represents
and warrants (which representations and warranties shall be deemed to have been
renewed upon each Notice of Borrowing being delivered under the Credit Agreement
and each Loan being made under the Credit Agreement), that:
(a) It (i) is a corporation, limited liability company, or
partnership, as the case may be, duly organized or formed, validly
existing and in good standing under the laws of its jurisdiction of
organization or formation; (ii) except where the failure to have such
could not reasonably be expected to have a Material Adverse Effect, it
has all requisite powers, governmental licenses, authorizations,
consents and approvals necessary to own
1
its assets and carry on its business as now conducted; and (iii) is
qualified to do business in all jurisdictions in which the nature of
the business conducted by it makes such qualification necessary and
where failure so to qualify would have a Material Adverse Effect.
(b) It has all necessary power and authority to execute, deliver
and perform its obligations under this Guaranty; the execution,
delivery and performance of this Guaranty have been duly authorized by
all necessary organizational action; and this Guaranty has been duly
and validly executed and delivered by it and constitutes its legal,
valid and binding obligation, enforceable in accordance with its terms,
except as the enforceability thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium and other similar laws relating
to the enforcement of creditors' rights generally and by general
equitable principles.
(c) Neither the execution and delivery by it of this Guaranty nor
compliance with the terms and provisions hereof will (i) conflict with
or result in a breach of, or require any consent under, organizational
documents or any applicable law or regulation, (ii) unless any such
conflict, breach or default would not reasonably be expected to have a
Material Adverse Effect, conflict with or result in a breach of any
order, writ, injunction or decree of any court or governmental
authority or agency, or any agreement or instrument to which it is a
party or by which it is bound or to which it is subject, or constitute
a default under any such agreement or instrument, or (iii) result in
the creation or imposition of any Lien upon any of its assets pursuant
to the terms of any such agreement or instrument.
SECTION 3. Covenants. Each Guarantor covenants that, so long as any
Lender has any Commitment outstanding under the Credit Agreement or any amount
payable by the Borrower under the Credit Agreement or any Note shall remain
unpaid, that it will, and, if necessary, will enable the Borrower, to fully
comply with those covenants and agreements applicable to it that are set forth
in Articles 5 and 6 of the Credit Agreement.
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 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, 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.
2
SECTION 5. Guaranty Unconditional. The obligations of each Guarantor
hereunder shall be unconditional and absolute and, without limiting the
generality of the foregoing, shall not be released, discharged or otherwise
affected by:
(i) any extension, renewal, settlement, compromise, waiver or
release in respect of any obligation of the Borrower under the Credit
Agreement, any Note, or any other Loan Document, by operation of law or
otherwise or any obligation of any other guarantor of any of the
Guaranteed Obligations;
(ii) any modification or amendment of or supplement to the Credit
Agreement, any Note, or any other Loan Document;
(iii) any release, nonperfection or invalidity of any direct or
indirect security for any obligation of the Borrower under the Credit
Agreement, any Note, or any Loan Document, or any obligations of any
other guarantor of any of the Guaranteed Obligations;
(iv) any change in the existence, structure or ownership of the
Borrower or any other guarantor of any of the Guaranteed Obligations,
or any insolvency, bankruptcy, reorganization or other similar
proceeding affecting the Borrower or any other guarantor of the
Guaranteed Obligations or its assets, or any resulting release or
discharge of any obligation of the Borrower, or any other guarantor of
any of the Guaranteed Obligations;
(v) the existence of any claim, setoff or other rights which any
Guarantor may have at any time against the Borrower, any other
guarantor of any of the Guaranteed Obligations, the Administrative
Agent, any Lender or any other Person, whether in connection herewith
or any unrelated transactions, provided that nothing herein shall
prevent the assertion of any such claim by separate suit or compulsory
counterclaim;
(vi) any invalidity or unenforceability relating to or against
the Borrower, or any other guarantor of any of the Guaranteed
Obligations, for any reason related to the Credit Agreement, any other
Loan Document, or any provision of applicable law or regulation
purporting to prohibit the payment by the Borrower, or any other
guarantor of the Guaranteed Obligations, of the principal of or
interest on any Loan or any other amount payable by the Borrower under
the Credit Agreement, the Notes, or any other Loan Document; or
(vii) any other act or omission to act or delay of any kind by
the Borrower, any other guarantor of the Guaranteed Obligations, the
Administrative Agent, any Lender or any other Person or any other
circumstance whatsoever which might, but for the provisions of this
paragraph, constitute a legal or equitable discharge of any Guarantor's
obligations hereunder.
Notwithstanding any other provision contained in this Guaranty, the
Guarantors' joint and several liability with respect to the principal
amount of the Guaranteed Obligations shall be no greater than the liability
of the Borrower with respect thereto.
3
SECTION 6. Discharge Only Upon Payment In Full; Reinstatement In
Certain Circumstances. Each Guarantor's obligations hereunder shall remain in
full force and effect until the sooner of (i) all Guaranteed Obligations shall
have been paid in full and the Commitments under the Credit Agreement shall have
terminated or expired, or (ii) the Administrative Agent releases such
Guarantor's obligations hereunder in writing. If at any time any payment of the
principal of or interest on any Loan or any other amount payable by the Borrower
under the Credit Agreement or any other Loan Document is rescinded or must be
otherwise restored or returned upon the insolvency, bankruptcy or reorganization
of the Borrower or otherwise, each Guarantor's obligations hereunder with
respect to such payment shall be reinstated as though such payment had been due
but not made at such time.
SECTION 7. Waiver of Notice. Each Guarantor irrevocably waives
acceptance hereof, presentment, demand, protest and, to the fullest extent
permitted by law, any notice not provided for herein, as well as any requirement
that at any time any action be taken by any Person against the Borrower, any
other guarantor of the Guaranteed Obligations, or any other Person.
SECTION 8. Judgment Currency. Each Guarantor hereby agrees that if, in
the event that a judgment against it is given in relation to any sum due
hereunder to the Administrative Agent or any Lender, such judgment is given in a
currency (the "Judgment Currency") other than that in which such sum was
originally denominated (the "Original Currency"), such Guarantor agrees to
indemnify the Administrative Agent or such Lender, as the case may be, to the
extent that the amount of the Original Currency which could have been purchased
by the Administrative Agent in accordance with normal banking procedures on the
Foreign Currency Business Day following receipt of such sum is less than the sum
originally due hereunder in the Original Currency, and if the amount so
purchased exceeds the amount which could have been so purchased had such
purchase been made on the day on which such judgment was given or, if such day
is not a Foreign Currency Business Day, on the Foreign Currency Business Day
immediately preceding such judgment, the Administrative Agent or the applicable
Lender agrees to remit such excess to such Guarantor. If for the purposes of
obtaining judgment in any court it is necessary to convert a sum due hereunder
in an Original Currency into a Judgment Currency, each Guarantor agrees, to the
fullest extent that it may effectively do so, that the rate of exchange used
shall be that at which in accordance with normal banking procedures the
Administrative Agent could purchase such Judgment Currency with such Original
Currency on the Foreign Currency Business Day preceding that on which final
judgment is given. The agreement in this Section 8 shall survive the termination
of this Agreement.
SECTION 9. Stay of Acceleration. If acceleration of the time for
payment of any amount payable by the Borrower under the Credit Agreement, any
Loan or any other Loan Document is stayed upon the insolvency, bankruptcy or
reorganization of the Borrower, all such amounts otherwise subject to
acceleration under the terms of the Credit Agreement, any Loan or any other Loan
Document shall nonetheless be payable by each Guarantor hereunder forthwith on
demand by the Administrative Agent.
SECTION 10. Right of Set Off. If an Event of Default shall have
occurred and be continuing, each Lender is hereby authorized at any time and
from time to time, to the fullest extent permitted by law, to set off and apply
any and all deposits (general or special, time or demand, provisional or final)
at any time held and other indebtedness at any time owing by such
4
Lender to or for the credit or the account of any Guarantor against any or all
the past due obligations of such Guarantor now or hereafter existing under this
Guaranty, and the other Loan Documents, irrespective of whether or not such
Lender shall have made any demand under this Guaranty or any other Loan
Document. The rights of each Lender under this Section 10 are in addition to
other rights and remedies (including other rights of set off) which such Lender
may have.
SECTION 11. Notices. All notices, requests and other communications to
any party hereunder shall be given or made in accordance with Section 10.01 of
the Credit Agreement, with notices, requests and other communications to any
Guarantor being delivered to the Borrower as provided in such Section 10.01.
SECTION 12. No Waivers. No failure or delay by the Administrative Agent
or any Lenders in exercising any right, power or privilege hereunder shall
operate as a waiver thereof nor shall any single or partial exercise thereof
preclude any other or further exercise thereof or the exercise of any other
right, power or privilege. The rights and remedies provided in this Guaranty,
the Credit Agreement, the Notes, and the other Loan Documents shall be
cumulative and not exclusive of any rights or remedies provided by law.
SECTION 13. Successors and Assigns. This Guaranty is for the benefit of
the Administrative Agent and the Lenders and their respective successors and
permitted assigns and in the event of a permitted assignment of any amounts
payable under the Credit Agreement, the Notes, and the other Loan Documents the
rights hereunder, to the extent applicable to the indebtedness so assigned, may
be transferred with such indebtedness. This Guaranty shall be binding upon each
Guarantor and its successors and permitted assigns.
SECTION 14. Changes in Writing. Neither this Guaranty nor any provision
hereof may be changed, waived, discharged or terminated orally, but only in
writing signed by each Guarantor and the Administrative Agent.
SECTION 15. GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF JURY
TRIAL. THIS GUARANTY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAW OF THE STATE OF GEORGIA. EACH GUARANTOR HEREBY SUBMITS TO THE NONEXCLUSIVE
JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF
GEORGIA AND OF ANY GEORGIA STATE COURT SITTING IN ATLANTA, GEORGIA AND FOR
PURPOSES OF ALL LEGAL PROCEEDINGS ARISING OUT OF OR RELATING TO THIS GUARANTY
(INCLUDING, WITHOUT LIMITATION, ANY OF THE OTHER LOAN DOCUMENTS) OR THE
TRANSACTIONS CONTEMPLATED HEREBY. EACH GUARANTOR IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER
HAVE TO THE LAYING OF THE VENUE OF ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT
AND ANY CLAIM THAT ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT HAS BEEN BROUGHT
IN AN INCONVENIENT FORUM. EACH GUARANTOR, AND THE ADMINISTRATIVE AGENT AND THE
LENDERS ACCEPTING THIS GUARANTY, HEREBY IRREVOCABLY WAIVE, TO THE FULLEST EXTENT
PERMITTED BY LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING
5
OUT OF OR RELATING TO THIS GUARANTY OR THE TRANSACTIONS CONTEMPLATED HEREBY.
SECTION 16. Taxes, etc. All payments required to be made by each
Guarantor hereunder shall be made without set off or counterclaim and free and
clear of and without deduction or withholding for or on account of, any Taxes;
provided, however, that if a Guarantor is required by law to make such deduction
or withholding, such Guarantor shall forthwith pay to the Administrative Agent
or any Lender, as applicable, such additional amount as results in the net
amount received by the Administrative Agent or any Lender, as applicable,
equaling the full amount which would have been received by the Administrative
Agent or any Lender, as applicable, had no such deduction or withholding been
made.
SECTION 17. Additional Guarantors. Upon execution and delivery by any
Subsidiary of the Borrower of an instrument in the form of Annex 1 attached
hereto, such Subsidiary shall become a Guarantor hereunder with the same force
and effect as if originally named a Guarantor herein (each an "Additional
Guarantor"). The execution and delivery of any such instrument shall not require
the consent of any other Guarantor hereunder. The rights and obligations of each
Guarantor hereunder shall remain in full force and effect notwithstanding the
addition of any Additional Guarantor as a party to this Guaranty.
SECTION 18. Other Guarantees. This Guaranty is in addition to, and does
not supersede or otherwise replace or affect, any other guaranty that may
previously have been executed, or may in the future be executed, in respect of
any of the Guaranteed Obligations.
SECTION 19. Counterparts. This Guaranty may be executed in
counterparts, each of which shall constitute an original, but all of which when
taken together shall constitute a single contract. Delivery of an executed
signature page to this Guaranty by facsimile transmission shall be as effective
as delivery of a manually executed counterpart of this Guaranty.
6
IN WITNESS WHEREOF, each Guarantor and the Administrative Agent have
caused this Guaranty to be duly executed by its authorized officer as of the day
and year first above written.
BELDEN COMMUNICATIONS COMPANY
By: /s/ Xxxx Xxxxxxxxxx
--------------------------------------
Name: Xxxx Xxxxxxxxxx
--------------------------------------
Title: Vice President
--------------------------------------
XXXXXX WIRE & CABLE COMPANY
By: /s/ Xxxx Xxxxxxxxxx
-------------------------------------
Name: Xxxx Xxxxxxxxxx
-------------------------------------
Title: Vice President
-------------------------------------
WACHOVIA BANK, N.A., as Administrative Agent
By: /s/ X. X. Xxxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxxx
--------------------------------------
Title: S.V.P.
--------------------------------------
7
SCHEDULE I
GUARANTORS
Belden Communications Company
Xxxxxx Wire & Cable Company
Page 1 of 1
ANNEX 1
SUPPLEMENT TO GUARANTY
THIS SUPPLEMENT TO GUARANTY (this "Supplement") dated as of
____________, made by ____________________________, a ___________ (the
"Additional Guarantor"), in favor of the Administrative Agent, for the ratable
benefit of the Lenders, under the Credit Agreement referred to below.
A. Reference is made to the Credit Agreement dated as of June 21,
2001 (as the same may have been or may hereafter be amended,
supplemented, and restated from time to time, the "Credit
Agreement"), among Xxxxxx Inc., a Delaware corporation (the
"Borrower"), Wachovia Bank, N.A., as Administrative Agent (the
"Administrative Agent"), and the banks and lending
institutions from time to time that are lenders thereunder
(the "Lenders").
B. Capitalized terms used herein and not otherwise defined
herein shall have the meanings assigned to such terms in the
Credit Agreement.
C. The Guarantors have entered into the Guaranty in order to
induce the Lenders to make Loans to the Borrower under the
Credit Agreement. Pursuant to Section 5.08 of the Credit
Agreement, certain Subsidiaries of the Borrower are required
to enter into the Guaranty and become a Guarantor thereunder.
The undersigned (the "Additional Guarantor") is executing this
Supplement in accordance with the requirements of the Guaranty
to become a Guarantor under the Guaranty in order to induce
the Lenders to make Loans to the Borrower and as consideration
for Loans previously made.
Accordingly, the Administrative Agent and the Additional Guarantor
agree as follows:
SECTION 1.
(a) By its signature below, the Additional Guarantor becomes a
Guarantor under the Guaranty with the same force and effect as if
originally named therein as a Guarantor therein, and the Additional
Guarantor hereby (a) agrees to all the terms and provisions of the
Guaranty applicable to it as a Guarantor thereunder, and (b) represents
and warrants that the representations and warranties made by it as a
Guarantor thereunder are true and correct on and as of the date hereof.
Each reference to a "Guarantor" in the Guaranty shall be deemed to
include the Additional Guarantor. The Guaranty is hereby incorporated
herein by reference.
(b) Without limiting the foregoing, the Additional Guarantor
hereby jointly and severally (with respect to the obligations of the
Guarantors under the Guaranty) irrevocably and unconditionally
guarantees the punctual payment when due, whether at stated maturity,
by acceleration or otherwise, of all principal of, and interest on,
each Loan made pursuant to the Credit Agreement, all indemnity
obligations of the Borrower, and all other amounts payable by the
Borrower under the Credit Agreement and the other Loan Documents
(including, without limitation, interest accruing or that would have
Page 1 of 3
accrued after the filing of a petition in bankruptcy or other
insolvency proceeding). Upon failure by the Borrower to pay punctually
any such amount, the Additional 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, the Notes, and the relevant
Loan Documents, as the case may be. The Additional Guarantor
acknowledges and agrees that this is a guarantee of payment when due,
and not of collection, and that the obligations of the Additional
Guarantor hereunder may be enforced up to the full amount hereof
without proceeding against the Borrower, any security held by the
Administrative Agent or the Lenders, or against any other Guarantor,
the Borrower, or any other party that may have liability on all or any
portion of the obligations guaranteed hereby.
SECTION 2. The Additional Guarantor represents and warrants to the
Administrative Agent and the Lenders that this Supplement has been duly
authorized, executed and delivered by it and constitutes its legal, valid and
binding obligation, enforceable against it in accordance with its terms, except
as the enforceability thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium and other similar laws relating to the enforcement of
creditors' rights generally and by general equitable principles.
SECTION 3. This Supplement may be executed in counterparts, each of
which shall constitute an original, but all of which when taken together shall
constitute a single agreement. This Supplement shall become effective when the
Administrative Agent shall have received counterparts of this Supplement that,
when taken together, bear the signatures of the Additional Guarantor and the
Administrative Agent. Delivery of an executed signature page to this Supplement
by facsimile transmission shall be effective as delivery of a manually
counterpart of this Supplement.
SECTION 4. Except as expressly supplemented hereby, the Guaranty shall
remain in full force and effect.
SECTION 5. This Supplement shall be governed by, and construed in
accordance with, the laws of the State of Georgia, without giving effect to the
principles of conflict of laws thereof.
SECTION 6. In case any one or more of the provisions contained in this
Supplement should be held invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein and in the Guaranty shall not in any way be affected or impaired thereby
(it being understood that the invalidity of a particular provision hereof in a
particular jurisdiction shall not in and of itself affect the validity of such
provision in any other jurisdiction.) The parties hereto shall endeavor in good
faith negotiations to replace the invalid, illegal or unenforceable provisions
with valid provisions the economic effect of which comes as close as possible to
that of the invalid, illegal or unenforceable provisions.
SECTION 7. All communications and notices hereunder shall be in writing
and given as provided in the Guaranty.
Page 2 of 3
SECTION 8. The Additional Guarantor agrees to reimburse the
Administrative Agent for its reasonable out-of-pocket expenses in connection
with this Supplement, including the reasonable fees, other charges and
disbursements of counsel for the Administrative Agent.
IN WITNESS WHEREOF, the Additional Guarantor and the Administrative
Agent have duly executed this Supplement to the Guaranty as of the day and year
first above written.
[NAME OF ADDITIONAL GUARANTOR]
By:
-----------------------------------
Name:
----------------------------
Title:
----------------------------
WACHOVIA BANK, N.A., as Administrative Agent
By:
-----------------------------------
Name:
----------------------------
Title:
----------------------------
Page 3 of 3
