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Exhibit 4.1
(ii)
EXECUTION
VERSION
BGI
GUARANTY
BGI GUARANTY , dated
as of September 19, 2007, by BARNES GROUP INC. , a
Delaware corporation (“ BGI ” or the “
Guarantor ”) in favor of (i) BANK OF AMERICA,
N.A. , as administrative agent (hereinafter, in such capacity,
the “ Administrative Agent ”) for itself
and the other lending institutions (hereinafter, collectively, the
“ Lenders ”) which are or may become parties to
a Fourth Amended and Restated Revolving Credit Agreement dated as
of September 19, 2007 (as amended and in effect from time to
time, the “ Credit Agreement ”), by and
among BGI, Barnes Group Switzerland GmbH,, a limited liability
company organized under the laws of Switzerland, acting through its
Nevis Branch (“ Barnes Switzerland ”, or
the “ Company ”), the Lenders, and the
Administrative Agent, with KeyBank National Association and
JPMorgan Chase Bank, N.A., as co-syndication agents (the “
Syndication Agents ”) and The Bank of New York
and The Governor and Company of The Bank of Ireland as
co-documentation agents (the “ Documentation
Agents ”) and (ii) each of the
Lenders.
WHEREAS , the Company
and the Guarantor are members of a group of related corporations,
the success of any one of which is dependent in part on the success
of the other members of such group;
WHEREAS , the
Guarantor expects to receive substantial direct and indirect
benefits from the extensions of credit to the Company by the
Lenders pursuant to the Credit Agreement (which benefits are hereby
acknowledged); and
WHEREAS , the
Guarantor wishes to guaranty the Company’s obligations to the
Lenders and the Administrative Agent under or in respect of the
Credit Agreement as provided herein;
NOW, THEREFORE , the
Guarantor hereby agrees with the Lenders and the Administrative
Agent as follows:
1. Definitions
. The term “ Barnes Switzerland Obligations
” and all other capitalized terms used herein without
definition shall have the respective meanings provided therefor in
the Credit Agreement.
2. Guaranty of Payment
and Performance . The Guarantor hereby guarantees to the
Lenders and the Administrative Agent the full and punctual payment
when due (whether at stated maturity, by required pre-payment, by
acceleration or otherwise), as well as the performance, of all of
the Barnes Switzerland Obligations including all such which would
become due but for the operation of the automatic stay pursuant to
§ 362(a) of the Federal Bankruptcy Code and the operation of
§§ 502(b) and 506(b) of the Federal Bankruptcy Code. This
BGI Guaranty is an absolute, unconditional and continuing guaranty
of the full and punctual payment and performance of all of the
Barnes Switzerland Obligations and not of their collectibility only
and is in no way conditioned upon any requirement that the
Administrative Agent or any Lender first attempt to collect any of
the Barnes Switzerland Obligations from the Company or resort to
any collateral security or other means of obtaining payment. Should
the Company default in the payment or performance of any of the
Barnes Switzerland Obligations, the obligations of the Guarantor
hereunder with respect to such Barnes Switzerland Obligations in
default shall, upon demand by the Administrative Agent, become
immediately due and payable to the Administrative Agent, for the
benefit of the Lenders and the Administrative Agent, without demand
or notice of any nature, all of which are expressly waived by the
Guarantor. Payments by the Guarantor hereunder may be required by
the Administrative Agent on any number of occasions. All payments
by the Guarantor hereunder shall be made to the Administrative
Agent, in the manner and at the place of payment specified therefor
in the Credit Agreement, for the account of the Lenders and the
Administrative Agent.
3. Guarantor’s
Agreement to Pay Enforcement Costs, etc . The Guarantor
further agrees, as the principal obligor and not as a guarantor
only, to pay to the Administrative Agent, on demand, in Dollars,
all costs and expenses (including court costs and legal expenses)
incurred or expended by the Administrative Agent or any Lender in
connection with the Barnes Switzerland Obligations, this BGI
Guaranty and the enforcement thereof, together with interest on
amounts recoverable under this §3 from the time when such
amounts become due until payment, whether before or after judgment,
at the rate of interest for overdue principal set forth in the
Credit Agreement, provided that if such interest exceeds the
maximum amount permitted to be paid under applicable law, then such
interest shall be reduced to such maximum permitted
amount.
4. Waivers by
Guarantor; Bank’s Freedom to Act . The Guarantor
agrees that the Barnes Switzerland Obligations will be paid and
performed strictly in accordance with their respective terms,
regardless of any law, regulation or order now or hereafter in
effect in any jurisdiction affecting any of such terms or the
rights of the Administrative Agent or any Lender with respect
thereto. The Guarantor waives promptness, diligences, presentment,
demand, protest, notice of acceptance, notice of any Barnes
Switzerland Obligations incurred and all other notices of any kind,
all defenses which may be available by virtue of any valuation,
stay, moratorium law or other similar law now or hereafter in
effect, any right to require the marshalling of assets of the
Company or any other entity or other person primarily or
secondarily liable with respect to any of the Barnes Switzerland
Obligations, and all suretyship defenses generally. Without
limiting the generality of the foregoing, the Guarantor agrees to
the provisions of any instrument evidencing, securing or otherwise
executed in connection with any Barnes Switzerland Obligation and
agrees that the obligations of the Guarantor hereunder shall not be
released or discharged, in whole or in part, or otherwise affected
by (i) the failure of the Administrative Agent or any Lender
to assert any claim or demand or to enforce any right or remedy
against the Company or any other entity or other person primarily
or secondarily liable with respect to any of the Barnes Switzerland
Obligations; (ii) any extensions, compromise, refinancing,
consolidation or renewals of any Barnes Switzerland Obligation;
(iii) any change in the time, place or manner of payment of
any of the Barnes Switzerland Obligations or any rescissions,
waivers, compromise, refinancing, consolidation or other amendments
or modifications of any of the terms or provisions of the Credit
Agreement , the Notes, the other Loan Documents or any other
agreement evidencing, securing or otherwise executed in connection
with any of the Barnes Switzerland Obligations, (iv) the
addition, substitution or release of any entity or other person
primarily or secondarily liable for any Barnes Switzerland
Obligation; (v) the adequacy of any rights which the
Administrative Agent or any Lender may have against any collateral
security or other means of obtaining repayment of any of the Barnes
Switzerland Obligations; (vi) the impairment of any collateral
securing any of the Barnes Switzerland Obligations, including
without limitation the failure to perfect or preserve any rights
which the Administrative Agent or any Lender might have in such
collateral security or the substitution, exchange, surrender,
release, loss or destruction of any such collateral security; or
(vii) any other act or omission which might in any manner or
to any extent vary the risk of the Guarantor or otherwise operate
as a release or discharge of the Guarantor, all of which may be
done without notice to the Guarantor. To the fullest extent
permitted by law, the Guarantor hereby expressly waives any and all
rights or defenses arising by reason of (A) any “one
action” or “anti-deficiency” law which would
otherwise prevent the Administrative Agent or any Lender from
bringing any action, including any claim for a deficiency, or
exercising any other right or remedy (including any right of
set-off), against the Guarantor before or after the Administrative
Agent’s or such Lender’s commencement or completion of
any foreclosure action, whether judicially, by exercise of power of
sale or otherwise, or (B) any other la
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