Looking for an agreement? Search from over 1 million agreements now.

Subsidiary Guaranty Agreement

This is an actual contract by Marshall Industries.

Save time and money with our Premium Packages.
Buy all (8) recommended agreements for
$140.00 (50% savings)
Agreement Preview
Sectors: Consumer Products (Durables)
Governing Law: North Carolina, View North Carolina State Laws
Effective Date: January 16, 1998
Search This Document
SUBSIDIARY GUARANTY AGREEMENT


THIS UNCONDITIONAL GUARANTY AGREEMENT (this "Guaranty"), dated as of January 16, 1998, is made by each of the Subsidiary Guarantors listed on the signature pages hereto (the "Subsidiary Guarantors"), in favor of FIRST UNION NATIONAL BANK, a national banking association, as Administrative Agent (the "Administrative Agent"), for the ratable benefit of itself and the financial institutions (the "Lenders") that are, or may from time to time become, parties to the Credit Agreement (as hereinafter defined).


STATEMENT OF PURPOSE


Pursuant to the terms of the Credit Agreement dated as of January 16, 1998 by and among Marshall Industries ("Marshall"), subject to and in accordance with Addendum A to the Credit Agreement, Sterling Electronics Corporation ("Sterling", and together with Marshall, the "Borrower"), the Lenders party thereto and the Administrative Agent (as amended, restated, supplemented or otherwise modified from time to time, the "Credit Agreement"), the Lenders have extended certain credit facilities to the Borrower as more particularly described therein. The Borrower and the Subsidiary Guarantors comprise one integrated financial enterprise, and all Extensions of Credit to the Borrower will inure, directly or indirectly, to the benefit of each of the Subsidiary Guarantors.


In connection with the transactions contemplated by the Credit Agreement, the Lenders have requested, and each of the Subsidiary Guarantors has agreed to execute and deliver, this Guaranty.


NOW, THEREFORE, in consideration of the premises and the mutual agreements set forth herein, and to induce the Lenders to continue to make available Extensions of Credit pursuant to the Credit Agreement, it is agreed as follows:


SECTION 1. DEFINITIONS. Capitalized terms used herein (including the preamble hereof) shall have the meanings assigned to them in the Credit Agreement, unless the context otherwise requires or unless otherwise defined herein. References in the Credit Agreement to a "Guaranty Agreement" or herein to this "Guaranty" shall include and mean this Guaranty, including all amendments and supplements hereto now or hereafter in effect.


SECTION 2. GUARANTY OF OBLIGATIONS OF THE BORROWER. Each Subsidiary Guarantor hereby, jointly and severally with each other Subsidiary Guarantor, unconditionally guarantees to the Administrative Agent for the ratable benefit of itself, the Lenders, and their respective successors, endorsees, transferees and assigns, the prompt payment (whether at stated maturity, by acceleration or otherwise) and performance of all Obligations of the Borrower, whether primary or secondary (whether by way of endorsement or otherwise), whether now existing or hereafter arising, whether or not from time to time reduced or extinguished (except by payment thereof) or hereafter increased or incurred, whether or not recovery may be or hereafter become barred by the statute of limitations, whether enforceable or unenforceable as against the Borrower, whether or not discharged, stayed or otherwise affected by any bankruptcy, insolvency or other similar law or


proceeding, whether created directly with the Administrative Agent or any Lender or acquired by the Administrative Agent or any Lender through assignment, endorsement or otherwise, whether matured or unmatured, whether joint or several, as and when the same become due and payable (whether at maturity or earlier, by reason of acceleration, mandatory repayment or otherwise), in accordance with the terms of any such instruments evidencing any such obligations, including all renewals, extensions or modifications thereof (all Obligations of the Borrower to the Administrative Agent or any Lender, including all of the foregoing, being hereinafter collectively referred to as the "Guaranteed Obligations"); PROVIDED, that notwithstanding anything to the contrary contained herein, it is the intention of each Subsidiary Guarantor and the Lenders that, in any proceeding involving the bankruptcy, reorganization, arrangement, adjustment of debts, relief of debtors, dissolution or insolvency or any similar proceeding with respect to any Subsidiary Guarantor or its assets, the amount of such Subsidiary Guarantor's obligations with respect to the Guaranteed Obligations shall be in, but not in excess of, the maximum amount thereof not subject to avoidance or recovery by operation of applicable law governing bankruptcy, reorganization, arrangement, adjustment of debts, relief of debtors, dissolution, insolvency, fraudulent transfers or conveyances or other similar laws (including, without limitation, 11 U.S.C. Section 547, Section 548, Section 550 and other "avoidance" provisions of Title 11 of the United States Code), applicable in any such proceeding to such Subsidiary Guarantor and this Guaranty (collectively, "Applicable Insolvency Laws"). To that end, but only in the event and to the extent that such Subsidiary Guarantor's obligations with respect to the Guaranteed Obligations or any payment made pursuant to the Guaranteed Obligations would, but for the operation of the foregoing proviso, be subject to avoidance or recovery in any such proceeding under Applicable Insolvency Laws, the amount of such Subsidiary Guarantor's obligations with respect to the Guaranteed Obligations shall be limited to the largest amount which, after giving effect thereto, would not, under Applicable Insolvency Laws, render such Subsidiary Guarantor's obligations with respect to such Guaranteed Obligations unenforceable or avoidable or otherwise subject to recovery under Applicable Insolvency Laws. To the extent any payment actually made pursuant to the Guaranteed Obligations exceeds the limitation of the foregoing proviso and is otherwise subject to avoidance and recovery in any such proceeding under Applicable Insolvency Laws, the amount subject to avoidance shall in all events be limited to the amount by which such actual payment exceeds such limitation and the Guaranteed Obligations as limited by the foregoing proviso shall in all events remain in full force and effect and be fully enforceable against such Subsidiary Guarantor. The foregoing proviso is intended solely to preserve the rights of the Administrative Agent hereunder against such Subsidiary Guarantor in such proceeding to the maximum extent permitted by Applicable Insolvency Laws and neither such Subsidiary Guarantor, the Borrower, any other Subsidiary Guarantor nor any other Person shall have any right or claim under such proviso that would not otherwise be available under Applicable Insolvency Laws in such proceeding.


SECTION 3. NATURE OF GUARANTY. Each Subsidiary Guarantor agrees that this Guaranty is a continuing, unconditional guaranty of payment and performance and not of collection, and that its obligations under this Guaranty shall be primary, absolute and unconditional, irrespective of, and unaffected by:


(a) the genuineness, validity, regularity, enforceability or any
future amendment of, or change in, the Credit Agreement or any other Loan
Document or any other


2


agreement, document or instrument to which the Borrower or any Subsidiary
thereof is or may become a party;


(b) any structural change in, restructuring of or other similar
change of the Borrower or any of its Subsidiaries (including, without
limitation, each Subsidiary Guarantor);


(c) the absence of any action to enforce this Guaranty, the Credit
Agreement or any other Loan Document or the waiver or consent by the
Administrative Agent or any Lender with respect to any of the provisions
of this Guaranty, the Credit Agreement or any other Loan Document;


(d) the existence, value or condition of, or failure to perfect its
Lien against, any security for or other guaranty of the Guaranteed
Obligations or any action, or the absence of any action, by the
Administrative Agent or any Lender in respect of such security or guaranty
(including, without limitation, the release of any such security or
guaranty); or


(e) any other action or circumstances which might otherwise
constitute a legal or equitable discharge or defense of a surety or
guarantor (other than payments not then due and owing or payments already
made);


it being agreed by each Subsidiary Guarantor that, subject to the proviso in Section 2 hereof, its obligations under this Guaranty shall not be discharged until the final and indefeasible payment and performance, in full, of the Guaranteed Obligations and the termination of the Commitments; PROVIDED, as long as such sale is permitted by the Credit Agreement, any Subsidiary Guarantor which is sold shall be released from this Guaranty, and this Guaranty shall terminate with respect to such Subsidiary Guarantor upon any such permitted sale. To the extent permitted by law, each Subsidiary Guarantor expressly waives all rights it may now or in the future have under any statute (including without limitation North Carolina General Statutes Section 26-7, et. seq. or similar law), or at law or in equity, or otherwise, to compel the Administrative Agent or any Lender to proceed in respect of the Guaranteed Obligations against the Borrower or any other party or against any security for or other guaranty of the payment and performance of the Guaranteed Obligations before proceeding against, or as a condition to proceeding against, such Subsidiary Guarantor. To the extent permitted by law, each Subsidiary Guarantor further expressly waives and agrees not to assert or take advantage of any defense based upon the failure of the Administrative Agent or any Lender to commence an action in respect of the Guaranteed Obligations against the Borrower, such Subsidiary Guarantor, any other guarantor or any other party or any security for the payment and performance of the Guaranteed Obligations. Each Subsidiary Guarantor agrees that any notice or directive given at any time to the Administrative Agent or any Lender which is inconsistent with the waivers in the preceding two sentences shall be null and void and may be ignored by the Administrative Agent or Lender, and, in addition, may not be pleaded or introduced as evidence in any litigation relating to this Guaranty for the reason that such pleading or introduction would be at variance with the written terms of this Guaranty, unless the Administrative Agent and the Required Lenders have specifically agreed otherwise in writing. The foregoing waivers are of the essence of


3


the transaction contemplated by the Loan Documents and, but for this Guaranty and such waivers, the Administrative Agent and Lenders would decline to enter into the Credit Agreement.


SECTION 4. DEMAND BY THE ADMINISTRATIVE AGENT. In addition to the terms set forth in Section 3, and in no manner imposing any limitation on such terms, if all or any portion of the then outstanding Guaranteed Obligations under the Credit Agreement are declared to be immediately due and payable, then the Subsidiary Guarantors shall, upon demand in writing therefor by the Administrative Agent to the Subsidiary Guarantors, pay all or such portion of the outstanding Guaranteed Obligations then declared due and payable. Payment by the Subsidiary Guarantors shall be made to the Administrative Agent, to be credited and applied upon the Guaranteed Obligations, in immediately available federal funds to an account designated by the Administrative Agent or at the address referenced herein for the giving of notice to the Administrative Agent or at any other address that may be specified in writing from time to time by the Administrative Agent.


SECTIO
-- End of Preview --
Home| About Us| FAQ| Subscription | Contact Us |

Privacy Policy   Terms of Service  3.85.10.62