1
EXHIBIT 10.4
GUARANTY BY CORPORATION
Effective as of June 9, 1997
1. Definitions. As used in this guaranty, the following terms
shall have the meanings indicated below:
(a) Borrower. The term "Borrower" shall mean Encore Wire
Corporation, a corporation organized under the laws of the State of Delaware.
(b) Lender. The term "Lender" shall mean NationsBank of
Texas, N.A.
(c) Guaranteed Indebtedness. The term "Guaranteed
Indebtedness" shall include; (i) any and all indebtedness of every kind and
character, without limit as to amount, whether now existing or hereafter
arising, of Borrower to Lender, regardless of whether evidenced by notes,
drafts, acceptances, discounts, overdrafts, or otherwise, and whether such
indebtedness be fixed, contingent, primary, secondary, joint, several, or joint
and several, and any and all accounts receivable, evidences of indebtedness,
contracts, leases, agreements, purchase orders, choses in action, conditional
sale or lease agreements, chattel mortgages, real estate mortgages or trust
deeds, factor's liens, other liens, other security instruments, drafts, notes,
bills, acceptances, trust receipts, warehouse receipts, guaranties, securities,
liens, certificates of beneficial interest in trust agreements, or other
obligations, and security instruments heretofore or hereafter acquired by the
Lender from the Borrower by assignment, pledge, or otherwise, or in respect of
which the Borrower has or may become in any way liable; (ii) interest on any of
the indebtedness described in (i) preceding; (iii) any and all attorneys' fees
incurred or suffered by Lender and/or Agent in the making of, the
administration of, or the collection of the foregoing indebtedness, and any and
all costs and expenses suffered by Lender and/or Agent by reason of Borrower's
default in payment of any of the foregoing indebtedness; and (iv) any renewal
or extension of the indebtedness, security instruments, costs, or expenses
described in (i) through (iii) preceding, or any part thereof. "Guaranteed
Indebtedness" includes, without limitation, all "Obligations" as defined in the
certain Second Amended and Restated Financing Agreement dated effective of even
date herewith among Lender, Bank of America of Texas, N.A., Borrower and
Guarantor (the "Agreement"). Other capitalized terms used herein and not
specifically defined shall have the meanings given them in the Financing
Agreement.
(d) Guarantor. The term "Guarantor" shall mean EWC
----------
Leasing Corp., a Nevada corporation,
- --------------------------------------------------------------------------------
mailing address of which is 1410 Millwood Road
-----------------------------------------------------
P.O. Box 1149
- --------------------------------------------------------------------------------
McKinney, Texas 75069-0545 .
- --------------------------------------------------------------------------------
2. Representations and Warranties. The Guarantor hereby
represents and warrants that this guaranty reasonably may be expected to
benefit, directly or indirectly, the Guarantor, and that the board of directors
of the Guarantor has decided that this guaranty may reasonably be expected to
benefit, directly or indirectly, the Guarantor.
3. Obligations. As an inducement to the Lender to advance monies
or extend credit to the Borrower, or otherwise assist the Borrower in financing
the business or sales of the Borrower, the Guarantor, for value received, does
hereby guarantee to the Lender the prompt payment in full when due or declared
due and at all times thereafter of any and all of the Guaranteed Indebtedness
and the prompt, full and faithful performance and discharge by the Borrower of
each and every one of the terms, conditions, agreements, representations,
warranties, covenants, guaranties, and provisions on the part of the Borrower
contained in any agreement or arrangement or in any modification or addenda
thereto or substitution thereof, or contained in any note, security instrument,
schedule and Assignment of Accounts, collateral reports, or other instruments
heretofore or hereafter given by or on behalf of the Borrower to the Lender
and/or Agent, or otherwise, or contained in any other agreements, undertakings
or obligations of the Borrower with or to the Lender, or any agreement or
indebtedness assigned to the Lender of any
2
kind or nature. The Guarantor shall not, so long as its obligations under this
guaranty continue, transfer or pledge any material portion of its assets for
less than full and adequate consideration.
4. Character of Obligations. This instrument shall be an
absolute, unconditional, and continuing guaranty of payment and not of
collection, and the circumstances that at any time or from time to time the
Guaranteed Indebtedness may be paid in full shall not affect the obligation of
the Guarantor with respect to indebtedness of Borrower to the Lender thereafter
incurred, provided that the Guarantor may give written notice that the
Guarantor will not be liable hereunder for any indebtedness of Borrower
incurred after the giving of such notice (which notice shall not be deemed to
have been given until actually received by the Lender). In the event of such
notice the Guarantor shall remain liable on its obligations hereunder until the
payment in full of (a) the Guaranteed Indebtedness as it exists at the date of
the giving of such notice, and (b) loans and advances made to or for the
account of Borrower after such notice pursuant to the obligation of the Lender
under a commitment or agreement made to or with Borrower prior to the giving of
such notice. The terms and conditions of this instrument, including, but not
limited to, the consents and waivers set forth in Section 5 hereof, shall
remain in effect with respect to the indebtedness described in the preceding
sentence in the same manner as if such notice had not been received. It shall
not be necessary for the Lender and/or Agent, in order to enforce payment
hereunder by the Guarantor, first to institute suit or exhaust its remedies
against Borrower or others liable on the Guaranteed Indebtedness, or to enforce
its rights against any security which shall ever have been given to secure the
Guaranteed Indebtedness. It is the intention of the parties hereto that the
Guarantor shall be primarily liable jointly and severally with the Borrower and
that the Guaranteed Indebtedness may be recovered in the same or separate
actions brought to recover the principal indebtedness. Payment of the sums for
which the Guarantor becomes liable shall be made to the Agent at its office in
Dallas, Dallas County, Texas, from time to time, on demand, or as the same
become or are declared due, notwithstanding that the Lender holds reserves,
credits, collateral or security against which the Lender may be entitled to
resort for payment. One or more successive or concurrent actions may be
brought hereon against the Guarantor, either in the same action in which
Borrower is sued or in separate actions, as often as Lender and/or Agent deems
advisable. The Guarantor expressly waives and bars itself from any right to
setoff, recoup or counterclaim any claim or demand against the Borrower or
against any other person liable on any part of the Guaranteed Indebtedness. As
further security to the Lender, any assets of the Guarantor of any kind, nature
or description in the Lender's possession, custody or control may, without
further notice, be reduced to cash and, together with any other cash and any
and all indebtedness owed to the Guarantor by the Lender, may be applied by the
Lender in reduction or payment of any liability incurred hereunder, and all
debts or liabilities now or hereafter owing to the Guarantor by the Borrower or
by any other person are hereby subordinated to the Lender's claims and are
hereby assigned to the Lender.
5. Consent and Waiver. The Guarantor, without limiting its
liability hereunder in any respect, hereby consents to and waives notice of,
and hereby agrees that its obligations under the terms of this guaranty shall
not be released, diminished, impaired, reduced, or affected by the occurrence
of any one or more of, the following events: (a) the taking or accepting of
any other security or guaranty for any or all of the Guaranteed Indebtedness;
(b) any release, surrender, exchange, subordination, or loss of any security at
any time existing in connection with any or all of the Guaranteed Indebtedness;
(c) any partial release of the liability of the Guarantor, or the partial or
total release of any other guarantor or guarantors; (d) the death, insolvency,
bankruptcy, disability, or lack of corporate power of Borrower, the Guarantor,
or any party at any time liable for the payment of any or all of the Guaranteed
Indebtedness, whether now existing or hereafter occurring; (e) any renewal,
extension or rearrangement of the payment of any or all of the Guaranteed
Indebtedness, or any adjustment, indulgence, forbearance, or compromise that
may be granted or given by the Lender and/or Agent to Borrower or the
Guarantor; (f) any neglect, delay, omission, failure, or refusal of the Lender
and/or Agent to take or prosecute any action for the collection of any of the
Guaranteed Indebtedness or to foreclose or take or prosecute any action in
connection with any instrument or agreement evidencing or securing all or any
part of the Guaranteed Indebtedness; (g) any failure of the Lender and/or Agent
to notify the Guarantor of any renewal, extension, or assignment of the
Guaranteed Indebtedness or any part thereof, or the release of any security or
of any other action taken or refrained from being taken by the Lender and/or
Agent against Borrower or any new agreement between the Lender and/or Agent and
3
Borrower, it being understood that neither the Lender nor the Agent shall be
required to give the Guarantor any notice of any kind under any circumstances
whatsoever with respect to or in connection with the Guaranteed Indebtedness;
(h) in the event that Borrower is a corporation, joint stock association, or
partnership, or is hereafter incorporated, the unenforceability of all or any
part of the Guaranteed Indebtedness against Borrower by reason of the fact that
the Guaranteed Indebtedness exceeds the amount permitted by law, the act of
creating the Guaranteed Indebtedness, or any part thereof, is ultra vires, or
the officers creating same acted in excess of their authority; (i) any payment
by Borrower to the Lender and/or Agent is held to constitute a preference under
the bankruptcy laws or if for any other reason the Lender and/or Agent is
required to refund such payment or pay the amount thereof to someone else; or
(j) the subsequent incorporation, reorganization, merger, or consolidation of
the Borrower. Notice of acceptance of this guaranty, the giving or extension
of credit to the Borrower, the purchase, acquisition, or pledge of notes,
receivables, or other security instruments or other instruments, or the
advancement of money or credit thereon, and presentment, demand, notices of
default, nonpayment or partial payments and protest, notice of protest and all
other notices or formalities to which the Guarantor or Borrower might otherwise
be entitled are hereby waived.
6. Liability. All liabilities of the Borrower and of the
Guarantor shall, at the option of the Lender or Agent and without notice,
mature immediately upon the insolvency of the Borrower, the appointment of a
receiver for the Borrower or any of its property, the filing of a voluntary or
involuntary petition in bankruptcy, reorganization, or arrangement, the making
of an assignment for the benefit of creditors, the calling of a meeting of
creditors by the Borrower, the encumbrance or disposition, or attempt to
encumber or dispose, of all or a substantial portion of Borrower's property, a
default by Borrower in the payment of any of the Guaranteed Indebtedness as the
same falls due, or a default, after applicable notice and opportunity to cure
pursuant to documentation now or hereafter evidencing the Guaranteed
Indebtedness, by the Borrower in respect of any undertaking. All liabilities
of the Guarantor shall, at the option of the Lender or Agent and without
notice, mature immediately upon the Lender becoming aware of the falsity of any
statement or representation hereof, or upon the insolvency of the Guarantor,
the appointment of a receiver for the Guarantor, or any of its property, the
filing of a voluntary or involuntary petition in bankruptcy, reorganization, or
arrangement, the making of an assignment for the benefit of creditors, the
calling of a meeting of creditors by the Guarantor, the breach of any provision
hereof, the encumbrance or disposition, or attempt to encumber or dispose, of
all of a substantial portion of the Guarantor's property, a default by the
Guarantor in the payment of any of the Guaranteed Indebtedness as the same
falls due, or a default, after applicable notice and opportunity to cure
pursuant to documentation now or hereafter evidencing the Guaranteed
Indebtedness, by the Guarantor in respect of any undertaking. If the Guarantor
becomes liable for an indebtedness owing by Borrower to the Lender, by
endorsement or otherwise, other than under this guaranty, such liability shall
not be in any manner impaired or affected hereby, and the rights of the Lender
and/or Agent hereunder shall be cumulative of any and all other rights that the
Lender and/or Agent may ever have against the Guarantor.
7. Construction. Nothing herein contained shall be construed as
an obligation on the part of the Lender to extend credit to the Borrower, or as
an obligation to continue to extend credit. The Lender's and Agent's records
showing the account between the Lender and the Borrower shall be admissible in
evidence in any action or proceeding involving this guaranty, and such records
shall be prima facie proof of the items therein set forth. This guaranty shall
for all purposes be deemed to be made in the State of Texas, and shall be
governed by the laws of the State of Texas to the extent that federal law does
not apply.
8. Benefit. This guaranty is for the benefit of Lender and
Lender's successors and assigns, and in the event of an assignment of the
Guaranteed Indebtedness, or any part thereof, the rights and benefits
hereunder, to the extent applicable to the indebtedness so assigned, may be
transferred with such indebtedness. This guaranty is binding not only on the
Guarantor, but on the Guarantor's successors and assigns.
9. Other Matters. The headings used in this Guaranty are for the
convenience only of the parties, and shall not be deemed to modify the terms
and provisions hereof. No modification, consent, amendment or
4
waiver of any provision of this guaranty, nor consent to any departure by the
Guarantor therefrom, shall be effective unless the same shall be in writing and
signed by an officer of the Lender, and then shall be effective only in the
specific instance and for the purpose for which given. No notice to or demand
of the Guarantor in any case shall, of itself, entitle the Guarantor to any
other or further notice or demand in similar or other circumstances. No delay
or omission by the Lender and/or Agent in exercising any power or right
hereunder shall impair any such right or power or be construed as a waiver
thereof of any acquiescence therein, nor shall any single or partial exercise
of any power preclude other or further exercise thereof, or the exercise of any
other right or power hereunder. All rights and remedies of the Lender and/or
Agent hereunder are cumulative of each other and of every other right or remedy
which the Lender and/or Agent may otherwise have at law or in equity or under
any other contract or document, and the exercise of one or more rights or
remedies shall not prejudice or impair the concurrent or subsequent exercise of
other rights or remedies. If the Guarantor should breach or fail to perform
any provision of this guaranty, the Guarantor agrees to pay the Lender and
Agent all costs and expenses (including court costs and reasonable attorneys'
fees) incurred by the Lender and/or Agent, as applicable, in the enforcement
hereof.
10. Renewal. This guaranty is in renewal of the certain Guaranty
by Corporation dated effective as of June 15, 1994 previously executed by
Guarantor for the benefit of Lender.
EXECUTED this 9th day of June, 1997 effective as of the date specified
above.
GUARANTOR:
EWC Leasing Corp.
By:
-------------------------------------
Title:
----------------------------------
================================================================================
THIS WRITTEN AGREEMENT REPRESENTS THE FINAL AGREEMENT BETWEEN THE
PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE
ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
NationsBank of Texas, N.A. EWC Leasing Corp.
By: By:
-------------------------- -------------------------
Todd Burns, Scott Weaver
Assistant Vice President Vice President
================================================================================