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EXHIBIT 10.50
UNCONDITIONAL GUARANTY
DATED AS OF NOVEMBER 9, 2000
RE: $17,500,000 14.5% SERIES B SENIOR SUBORDINATED NOTES DUE JUNE 30, 2005
ISSUED BY QUESTRON OPERATING COMPANY, INC.
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TABLE OF CONTENTS
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1. PRELIMINARY STATEMENTS 1
2. GUARANTY AND OTHER RIGHTS AND UNDERTAKINGS 2
2.1 Guarantied Obligations.......................................2
2.2 Waivers and Other Agreements.................................3
2.3 Nature of Guaranty...........................................4
2.4 Obligations Absolute.........................................4
2.5 No Investigation by Noteholders..............................5
2.6 Indemnity....................................................5
2.7 Subordination, Subrogation, Etc..............................6
2.8 Waiver.......................................................6
2.9 Limitation on Guarantied Obligations.........................6
2.10 Marshaling..................................................6
2.11 Setoff, Counterclaim or Other Deductions....................7
2.12 No Election of Remedies by Noteholders......................7
2.13 Separate Action; Other Enforcement Rights...................7
2.14 Noteholder Setoff...........................................7
2.15 Delay or Omission; No Waiver................................7
2.16 Restoration of Rights and Remedies..........................8
2.17 Cumulative Remedies.........................................8
2.18 Subordination to Senior Debt................................8
3. WARRANTIES AND REPRESENTATIONS 9
3.1 Representations and Warranties in Securities Purchase
Agreement....................................................9
3.2 Due Authorization; Enforceability............................9
3.3 Governmental Consent........................................10
3.4 Nature of Business of Company and Subsidiaries..............10
3.5 Solvency....................................................10
4. INTERPRETATION OF THIS UNCONDITIONAL GUARANTY 11
4.1 Terms Defined...............................................11
4.2 Section Headings and Construction...........................11
4.3 Governing Law...............................................12
5 MISCELLANEOUS 12
5.1 Communications..............................................12
5.2 Reproduction of Documents...................................13
5.3 Survival, Entire Agreement..................................13
5.4 Successors and Assigns......................................13
5.5 Amendment...................................................13
5.6 Benefits of Guaranty Restricted to Noteholders..............14
5.7 Joinder Agreement...........................................14
Annex 1 -- Addresses of Guarantors
Annex 2 -- Form of Joinder Agreement
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UNCONDITIONAL GUARANTY
UNCONDITIONAL GUARANTY, dated as of November 9, 2000 (as amended,
restated or otherwise modified from time to time, this "UNCONDITIONAL
GUARANTY"), by QUESTRON TECHNOLOGY, INC., a Delaware corporation; QUESTRON
FINANCE CORP. a Delaware corporation; QUESTRON DISTRIBUTION LOGISTICS, INC., a
Delaware corporation; COMP XXXX, INC., a Delaware corporation; POWER COMPONENTS,
INC., a Pennsylvania corporation; INTEGRATED MATERIAL SYSTEMS, INC., an Arizona
corporation; CALIFORNIA FASTENERS, INC., a California corporation; FAS-TRONICS,
INC., a Texas corporation; FORTUNE INDUSTRIES, INC., a Texas corporation;
CAPITAL FASTENERS, INC., a North Carolina corporation; ACTION THREADED PRODUCTS,
INC., an Illinois corporation; ACTION THREADED PRODUCTS OF GEORGIA, INC., a
Georgia corporation; ACTION THREADED PRODUCTS OF MINNESOTA, INC., a Minnesota
corporation; B&G SUPPLY COMPANY, INC., a Texas corporation; and R.S.D. SALES
CO., INC., a New York corporation (collectively, the "ORIGINAL GUARANTORS") and
each other Person that becomes a party hereto from time to time by execution and
delivery of a Joinder Agreement (collectively, with the Original Guarantors, and
including their respective successors and assigns, the "GUARANTORS"), in favor
of each of the Noteholders (as such term is hereinafter defined).
1. PRELIMINARY STATEMENTS
WHEREAS, Questron Operating Company, Inc. (together with its successors
and assigns, the "COMPANY"), a Delaware corporation, has authorized the issuance
of its 14.50% Series B Senior Subordinated Notes due June 30, 2005 (as may be
amended, restated or otherwise modified from time to time, the "NOTES"), in the
aggregate principal amount of Seventeen Million Five Hundred Thousand Dollars
($17,500,000), pursuant to a Note Agreement, dated as of November 9, 2000 (as
maybe amended, restated or otherwise modified from time to time, the "NOTE
AGREEMENT"), entered into by the Company with each of the purchasers of the
Notes named on Annex I to the Note Agreement (the "PURCHASERS"); and
WHEREAS, the proceeds of the sale of the Notes will be used, in part,
and together with other new indebtedness of the Company, to repay indebtedness
of the Company which is guaranteed by the Original Guarantors and which is
secured by Liens upon the assets of the Original Guarantors; and
WHEREAS, in order to induce the Purchasers to purchase the Notes, each
of the Original Guarantors has agreed to become a Guarantor hereunder and the
Company has agreed, pursuant to the Note Agreement, that each other Subsidiary,
will be required to become a Guarantor hereunder; and
WHEREAS, each of the Original Guarantors will receive direct economic
benefit from the granting of this Unconditional Guaranty in that the proceeds
from the sale of the Notes will be used to prepay indebtedness of the Company,
which payment will result in the discharge of the existing guarantees of such
indebtedness by the Original Guarantors and the discharge of existing Liens upon
the Property of such Original Guarantors; and each Guarantor will receive direct
and indirect economic, financial and other benefits from
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the Debt incurred under the Note Agreement and the Notes by the Company, and
under this Unconditional Guaranty, and the incurrence of such Debt and the
guaranteeing of such Debt hereby is in the best interests of such Guarantor; and
WHEREAS, all acts and proceedings required by law and by the
constitutive documents of each Guarantor necessary to constitute this
Unconditional Guaranty a valid and binding agreement for the uses and purposes
set forth herein in accordance with its terms have been done and taken, and the
execution and delivery hereof have been in all respects duly authorized;
NOW, THEREFORE, in consideration of the foregoing and the agreements
set forth herein, each of the Guarantors agrees as follows:
2. GUARANTY AND OTHER RIGHTS AND UNDERTAKINGS
2.1. GUARANTIED OBLIGATIONS
(a) Each Guarantor, in consideration of the execution and
delivery of the Note Agreement, the purchase of the Notes by the
Purchasers and other consideration, hereby irrevocably, unconditionally
and absolutely guaranties, on a continuing basis, to each Noteholder,
jointly and severally, as and for such Guarantor's own debt:
(a) the prompt payment of the principal of the Notes
and any and all accrued and unpaid interest (including,
without limitation, interest which otherwise may cease to
accrue by operation of any insolvency law, rule, regulation or
interpretation thereof) and Compensation Amount on the Notes
and all other obligations of the Company to the Noteholders
under the Note Agreement (including, without limitation, its
obligations in respect of Section 9.6 and Section 9.8
thereof), whether by mandatory or optional prepayment,
acceleration or otherwise, all in accordance with the terms of
the Note Agreement and the Notes, including, without
limitation, overdue interest, indemnification payments and all
reasonable costs and expenses incurred by the Noteholders in
connection with enforcing any obligations of the Company under
the Note Agreement and the Notes, including, without
limitation, the reasonable fees and disbursements of
Noteholders' special counsel;
(b) the prompt and punctual performance and
observance of each and every term, covenant or agreement
contained in the Note Agreement and the Notes to be performed
or observed on the part of the Company; and
(c) the prompt and complete payment, on demand, of
any and all reasonable costs and expenses incurred by the
Noteholders in connection with enforcing the obligations of
such Guarantor hereunder, including, without limitation, the
reasonable fees and disbursements of Noteholders' special
counsel.
All of the obligations set forth in subsections (i), (ii) and
(iii) of this Section 2.1 are referred to herein as the
"GUARANTIED OBLIGATIONS" and the
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guaranty thereof contained herein is a primary, original and
immediate obligation of each Guarantor and is an absolute,
unconditional, continuing and irrevocable guaranty of payment
and performance and shall remain in full force and effect
until the full, final and indefeasible payment of the
Guarantied Obligations. (B) If for any reason any duty,
agreement or obligation of the Company contained in the Note
Agreement shall not be performed or observed by the Company as
provided therein, or if any amount payable under or in
connection with the Note Agreement or the Notes shall not be
paid in full when the same becomes due and payable, each
Guarantor undertakes to perform or cause to be performed
promptly each of such duties, agreements and obligations and
to pay forthwith each such amount to the Noteholders
regardless of any defense or setoff or counterclaim which the
Company may have or assert, and regardless of any other
condition or contingency. 2.2. WAIVERS AND OTHER AGREEMENTS
Each Guarantor hereby unconditionally:
(a) waives any requirement that the Noteholders, upon the
occurrence of an Event of Default, first make demand upon, or seek to
enforce remedies against, the Company before demanding payment under or
seeking to enforce the obligations of such Guarantor under this
Unconditional Guaranty;
(b) agrees that the obligations of such Guarantor under this
Unconditional Guaranty will not be discharged except by complete
performance of all obligations of the Company contained in the Note
Agreement, the Notes and the other Financing Documents;
(c) agrees that the obligations of such Guarantor under this
Unconditional Guaranty shall remain in full force and effect without
regard to, and shall not be affected or impaired, without limitation,
by any invalidity, irregularity or unenforceability in whole or in part
of the Note Agreement, the Notes or any other Financing Document, or
any limitation on the liability of any Guarantor under this
Unconditional Guaranty, or any limitation on the method or terms of
payment under the Note Agreement, the Notes or any other Financing
Document which may at any time be caused or imposed in any manner
whatsoever (including, without limitation, usury laws);
(d) waives diligence, presentment and protest with respect to,
and any notice of default or dishonor in the payment of any amount at
any time payable by the Company under or in connection with the Note
Agreement, the Notes or any other Financing Document, and further
waives any requirement of notice of acceptance of, or other formality
relating to, the obligations of such Guarantor under this Unconditional
Guaranty; and
(e) agrees that to the extent the Company makes a payment or
payments to any Noteholder, which payment or payments or any part
thereof are subsequently
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invalidated, declared to be fraudulent or preferential, set aside or
required, for any of the foregoing reasons or for any other reason, to
be repaid or paid over to a custodian, trustee, receiver or any other
party or officer under any bankruptcy, reorganization, arrangement,
insolvency, readjustment of debt, dissolution or liquidation law of any
jurisdiction, state or federal law, or any common law or equitable
cause, then to the extent of such payment or repayment, the obligation
or part thereof intended to be satisfied shall be revived and continued
in full force and effect as if said payment had not been made and each
Guarantor shall be primarily liable for such obligation.
2.3. NATURE OF GUARANTY
The obligations of each Guarantor under this Unconditional Guaranty
constitute an absolute and unconditional and irrevocable guaranty of payment and
not a guaranty of collection and are wholly independent of and in addition to
other rights and remedies of the Noteholders and are not contingent upon the
pursuit by the Noteholders of any such rights and remedies, such pursuit being
hereby waived by such Guarantor. Notwithstanding anything to the contrary set
forth in the Note Agreement, the Notes or any other Financing Document, the
obligations of each Guarantor under this Unconditional Guaranty are joint and
several with the obligations of each other Guarantor and any other guarantor of
all or any part of the Guarantied Obligations.
2.4. OBLIGATIONS ABSOLUTE
The obligations, covenants, agreements and duties of each Guarantor
under this Unconditional Guaranty shall not be released, affected or impaired by
any of the following, whether or not undertaken with notice to or consent of
such Guarantor:
(a) any assignment or transfer, in whole or in part, of any
Note although made without notice to or consent of such Guarantor;
(b) any waiver by any Noteholder, or by any other Person, of
the performance or observance by the Company of any of the agreements,
covenants, terms or conditions contained in the Note Agreement or in
any other Financing Document (except, in such case, that any such
waiver by any Noteholder shall extend to this Unconditional Guaranty as
well);
(c) any indulgence in or the extension of the time for payment
by the Company of any amounts payable under or in connection with the
Note Agreement, the Notes or any other Financing Document, or of the
time for performance by the Company of any other obligations under or
arising out of the Note Agreement, the Notes or any other Financing
Document, or the extension or renewal thereof (except, in such case,
that any such indulgence or extension by the Noteholders shall apply to
this Unconditional Guaranty as well);
(d) the modification, amendment or waiver (whether material or
otherwise) of any duty, agreement or obligation of the Company set
forth in the Note Agreement, the Notes or any other Financing Document
(the modification, amendment or waiver from time to time of the Note
Agreement, the Notes and the other Financing
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Documents being expressly authorized without further notice to or
consent of such Guarantor) (except, in such cases that any such
modification, amendment or waiver by the Noteholders shall apply to
this Unconditional Guaranty as well);
(e) the voluntary or involuntary liquidation, sale or other
disposition of all or substantially all of the assets of the Company or
any receivership, insolvency, bankruptcy, reorganization or other
similar proceedings affecting the Company or any of its assets;
(f) the merger or consolidation of the Company or any
Guarantor with any other Person;
(g) the release or discharge of the Company from the
performance or observance of any agreement, covenant, term or condition
contained in the Note Agreement, the Notes or any other Financing
Document, by operation of law; or
(h) any other cause, whether similar or dissimilar to the
foregoing, that would release, affect or impair the obligations,
covenants, agreements or duties of any Guarantor under this
Unconditional Guaranty.
2.5. NO INVESTIGATION BY NOTEHOLDERS
Each Guarantor hereby waives unconditionally any obligation that, in
the absence of this provision, the Noteholders might otherwise have to
investigate or to assure that there has been compliance with the law of any
jurisdiction with respect to the Guarantied Obligations, recognizing that, to
save both time and expense, such Guarantor has requested that the Noteholders
not undertake such investigation. Each Guarantor hereby expressly confirms that
the obligations of such Guarantor hereunder shall remain in full force and
effect without regard to compliance or noncompliance with any such law and
irrespective of any investigation or knowledge of any such law by any
Noteholder.
2.6. INDEMNITY
As a separate, additional and continuing obligation, each Guarantor
unconditionally and irrevocably undertakes and agrees with the Noteholders that,
should the Guarantied Obligations not be recoverable from such Guarantor under
Section 2.1 for any reason whatsoever (including, without limitation, by reason
of any provision of the Note Agreement or the Notes or any other agreement or
instrument executed in connection therewith being or becoming void,
unenforceable or otherwise invalid under any applicable law) then,
notwithstanding any knowledge thereof by any Noteholder at any time, such
Guarantor as sole, original and independent obligor, upon demand by the Required
Holders, will make payment of the Guarantied Obligations to the Noteholders by
way of a full indemnity in such currency and otherwise in such manner as is
provided in the Note Agreement and the Notes.
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2.7. SUBORDINATION, SUBROGATION, ETC
Each Guarantor agrees that any present or future indebtedness,
obligations or liabilities of the Company to such Guarantor shall be fully
subordinate and junior in right and priority of payment to the Guarantied
Obligations and any present or future indebtedness, obligations or liabilities
of the Company to the Noteholders. Each Guarantor waives any right of
subrogation to the rights of the Noteholders against the Company or any other
Person obligated for payment of the Guarantied Obligations and any right of
reimbursement, contribution or indemnity whatsoever (including, without
limitation, any such right as against the Company or any other Guarantor)
arising or accruing out of any payment that such Guarantor may make pursuant to
this Unconditional Guaranty, and any right of recourse to security for the debts
and obligations of the Company, unless and until the entire amount of the
Guarantied Obligations shall have been fully, finally and indefeasibly paid in
full for a period of not less than one hundred twenty (120) days.
2.8. WAIVER
To the extent that it lawfully may, each Guarantor agrees that it will
not at any time insist upon or plead, or in any manner whatsoever claim or take
any benefit or advantage of any applicable present or future stay, extension or
moratorium law, which may affect observance or performance of the provisions of
this Unconditional Guaranty, the Note Agreement, the Notes or any other
Financing Document; nor will it claim, take or insist upon any benefit or
advantage of any present or future law providing for the evaluation or appraisal
of any security for its obligations hereunder or the Company under the Note
Agreement, the Notes or any other Financing Document prior to any sale or sales
thereof which may be made under or by virtue of any instrument governing the
same; nor will it, after any such sale or sales, claim or exercise any right,
under any applicable law, to redeem any portion of such security so sold.
2.9. LIMITATION ON GUARANTIED OBLIGATIONS
Notwithstanding anything in Section 2.1 or elsewhere in this
Unconditional Guaranty or any other Financing Document to the contrary, the
obligations of each Guarantor under this Unconditional Guaranty shall at each
point in time be limited to an aggregate amount equal to the greatest amount
that would not result in such obligations being subject to avoidance, or
otherwise result in such obligations being unenforceable, at such time under
applicable law (including, without limitation, to the extent, and only to the
extent, applicable to any such Guarantor, Section 548 of the Bankruptcy Code of
the United States of America and any comparable provisions of the law of any
other jurisdiction, any capital preservation law of any jurisdiction and any
other law of any jurisdiction that at such time limits the enforceability of the
obligations of such Guarantor under this Unconditional Guaranty).
2.10. MARSHALING
Neither any Noteholder nor any Person acting for the benefit of any
Noteholder shall be under any obligation to marshal any assets in favor of any
Guarantor or against or in payment of any or all of the Guarantied Obligations.
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2.11. SETOFF, COUNTERCLAIM OR OTHER DEDUCTIONS
Except as otherwise required by law, each payment by each Guarantor
shall be made without setoff, counterclaim or other deduction.
2.12. NO ELECTION OF REMEDIES BY NOTEHOLDERS
No election to proceed in one form of action or proceeding, or against
any party, or on any obligation, shall constitute a waiver of such Noteholder's
right to proceed in any other form of action or proceeding or against other
parties unless such Noteholder has expressly waived such right in writing.
Specifically, but without limiting the generality of the foregoing, no action or
proceeding by any Noteholder against the Company or any Guarantor under any
document or instrument evidencing obligations of the Company or any Guarantor to
such Noteholder shall serve to diminish the liability of any Guarantor under
this Unconditional Guaranty, except to the extent that such Noteholder finally
and unconditionally shall have realized payment by such action or proceeding in
respect of the Guarantied Obligations.
2.13. SEPARATE ACTION; OTHER ENFORCEMENT RIGHTS
Each of the rights and remedies granted under this Unconditional
Guaranty to each Noteholder in respect of the Notes held by such Noteholder may
be exercised by such Noteholder without notice by such Noteholder to, or the
consent of or any other action by, any other Noteholder. Each Noteholder may
proceed to protect and enforce this Unconditional Guaranty by suit or suits or
proceedings in equity, at law or in bankruptcy, and whether for the specific
performance of any covenant or agreement contained herein or in execution or aid
of any power herein granted or for the recovery of judgment for the obligations
hereby guarantied or for the enforcement of any other proper, legal or equitable
remedy available under applicable law.
2.14. NOTEHOLDER SETOFF
Each Noteholder shall have, to the fullest extent permitted by law and
this Unconditional Guaranty, a right of set-off against any and all credits and
any and all other property of each Guarantor now or at any time whatsoever, with
or in the possession of such Noteholder, or anyone acting for such Noteholder,
to ensure the full performance of any and all obligations of each Guarantor
hereunder.
2.15. DELAY OR OMISSION; NO WAIVER
No course of dealing on the part of any Noteholder and no delay or
failure on the part of any such Person to exercise any right hereunder shall
impair such right or operate as a waiver of such right or otherwise prejudice
such Person's rights, powers and remedies hereunder. Every right and remedy
given by this Unconditional Guaranty or by law to any Noteholder may be
exercised from time to time as often as may be deemed expedient by such Person.
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2.16. RESTORATION OF RIGHTS AND REMEDIES
If any Noteholder shall have instituted any proceeding to enforce any
right or remedy under this Unconditional Guaranty or under any Note held by such
Noteholder, and such proceeding shall have been dismissed, discontinued or
abandoned for any reason, or shall have been determined adversely to such
Noteholder, then and in every such case each such Noteholder, the Company and
each Guarantor shall, except as may be limited or affected by any determination
(including, without limitation, any determination in connection with any such
dismissal) in such proceeding, be restored severally and respectively to its
respective former positions hereunder and thereunder, and thereafter, subject as
aforesaid, the rights and remedies of such Noteholders shall continue as though
no such proceeding had been instituted.
2.17. CUMULATIVE REMEDIES
No remedy under this Unconditional Guaranty, the Note Agreement, the
Notes or any other Financing Document is intended to be exclusive of any other
remedy, but each and every remedy shall be cumulative and in addition to any and
every other remedy given pursuant to this Unconditional Guaranty, the Note
Agreement, the Notes or any other Financing Document.
2.18. SUBORDINATION TO SENIOR DEBT
The Guarantied Obligations and all other obligations of the Guarantor
in respect of the Subordinated Debt are subordinate and junior in right of
payment to any and all guaranties or other Debt of the Guarantors owing to the
holders of Senior Debt in respect of the Senior Debt to the same extent and on
the same terms as the Subordinated Debt are subordinated to the Senior Debt
pursuant to the provisions of Section 7 of the Note Agreement. The provisions of
Section 7 of the Note Agreement and the defined terms set forth in Section 8.1
of the Note Agreement, to the extent used in such Section 7, are hereby
incorporated in their entirety herein, mutatis mutandis, by this reference
thereto. Each Noteholder shall be deemed to acknowledge and agree that the these
subordination provisions are, and are intended to be, an inducement to and a
consideration of each holder of any Senior Debt, whether such Senior Debt was
created or acquired before or after the creation of Notes, to acquire and hold,
or to continue to hold, such Senior Debt, and such holder of Senior Debt shall
be deemed conclusively to have relied on such subordination provisions in
acquiring and holding, or in continuing to hold, such Senior Debt, and each
holder of Senior Debt shall be a direct beneficiary of the provisions of this
Section 2.18. Notwithstanding anything contained in this Unconditional Guaranty
or any other Financing Document to the contrary, this Section 2.18 may not,
directly or indirectly, be amended, modified, supplemented or waived without the
prior written consent of the Senior Agent, on behalf of the holders of the
Senior Debt, for so long as the Senior Credit Facility shall exist, and,
thereafter, the holders of the Senior Debt. Nothing in this Section 2.18 shall
affect, as among the Guarantors and the Noteholders, the obligations of the
Guarantors under this Unconditional Guaranty, which obligations remain absolute
and unconditional notwithstanding such subordination.
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3. WARRANTIES AND REPRESENTATIONS
Each Guarantor warrants and represents, as of the date such Guarantor
becomes a Guarantor hereunder, as follows:
3.1. REPRESENTATIONS AND WARRANTIES IN SECURITIES PURCHASE
AGREEMENT
Each of the warranties and representations made by the Company in
Section 2 of the Securities Purchase Agreement with respect to Subsidiaries or
the Guarantors generally are true with respect to such Guarantor on the date
that such Guarantor becomes a Guarantor, with the same effect as though such
warranties and representations were made on and as of such date rather than on
and as of the date of this Unconditional Guaranty.
3.2. DUE AUTHORIZATION; ENFORCEABILITY
(a) Unconditional Guaranty is Legal and Authorized. The
execution and delivery of this Unconditional Guaranty by such Guarantor
and compliance by such Guarantor with all of the provisions hereof:
(a) is within the corporate powers of such Guarantor;
and
(b) is legal and does not conflict with, result in
any breach of any of the provisions of, constitute a default
under, or result in the creation of any Lien upon any Property
of such Guarantor under the provisions of:
(i) any agreement, charter instrument, bylaw
or other instrument to which such Guarantor is a
party or by which such Guarantor is or may be bound;
(ii) any order, judgment, decree, or ruling
of any court, arbitrator or Governmental Authority
applicable to such Guarantor or any of its Property;
or
(iii) any statute or other rule or
regulation of any Governmental Authority applicable
to such Guarantor or any of its Property.
(b) Obligations are Enforceable. This Unconditional Guaranty
has been duly authorized by all necessary action on the part of such
Guarantor, has been executed and delivered by one or more duly
authorized officers of such Guarantor, and constitutes a legal, valid
and binding obligation of such Guarantor, enforceable in accordance
with its terms, except that:
(a) the enforceability thereof may be limited by
applicable bankruptcy, reorganization, arrangement,
insolvency, moratorium, or other similar laws affecting the
enforceability of creditors' rights generally and subject to
the availability of equitable remedies; and
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(b) rights to indemnity and contribution contained
therein may be limited by applicable law or public policy.
3.3. GOVERNMENTAL CONSENT
(a) Neither the execution and delivery of this Unconditional
Guaranty by such Guarantor, nor the performance of the obligations of
such Guarantor hereunder, is such as to require a consent, approval or
authorization of, or pre-filing, registration or qualification with,
any Governmental Authority on the part of such Guarantor as a condition
hereto, except for:
(a) such consents, approvals, authorizations,
pre-filings, registrations and qualifications described on
Part 2.15(a) of Annex 3, all of which have been obtained on or
prior to the Closing Date; and
(b) such consents, approvals, authorizations,
pre-filings, registrations and qualifications which, if not
obtained, could not, in the aggregate, reasonably be expected
to have a Material Adverse Effect.
(b) Neither the execution and delivery of this Unconditional
Guaranty by such Guarantor, nor the incurrence of obligations
represented hereby, nor the performance of its obligations hereunder:
(a) is subject to regulation under the Investment
Company Act of 1940, as amended, the Public Utility Holding
Company Act of 1935, as amended, the Transportation Acts of
the United States of America (49 U.S.C.), as amended, or the
Federal Power Act, as amended; or
(b) violates any provision of any statute or other
rule or regulation of any Governmental Authority applicable to
such Guarantor.
3.4. NATURE OF BUSINESS OF COMPANY AND SUBSIDIARIES
The Company and the Subsidiaries have sought and obtained the Note
Agreement, the sale of the Notes and the related transactions based upon their
consolidated financial position and such Guarantor understands that the
Purchasers are relying upon the consolidated financial condition of the Company
and the Subsidiaries in purchasing the Notes.
3.5. SOLVENCY
The fair value of the business and assets of each of the Company and
the Guarantors exceeds the amount that will be required to pay its liabilities
(including, without limitation, contingent, subordinated, uninatured and
unliquidated liabilities on existing debts, as such liabilities may become
absolute and matured), in each case after giving effect to the transactions
contemplated by the Note Agreement, the Notes and this Unconditional Guaranty,
including, without limitation, the provisions of Section 2.9. Neither the
Company nor any of the Guarantors, after giving effect to the transactions
contemplated by the Note Agreement, the Notes and this Unconditional Guaranty,
will be insolvent or will be engaged
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in any business or transaction, or about to engage in any business or
transaction, for which such Person has unreasonably small assets or capital
(within the meaning of the Uniform Fraudulent Transfer Act, the Uniform
Fraudulent Conveyance Act and Section 548 of Title 11 of the United States
Code), and none of the Guarantors nor the Company has any intent to hinder,
delay or defraud any entity to which it is, or will become, on or after the
Closing Date, indebted or incur debts that would be beyond its ability to pay as
they mature.
4. INTERPRETATION OF THIS UNCONDITIONAL GUARANTY
4.1. TERMS DEFINED
As used in this Unconditional Guaranty, capitalized terms have the
meaning specified in the Note Agreement unless otherwise specified below or set
forth in the section of this Unconditional Guaranty referred to immediately
following such term (such definitions, unless otherwise expressly provided, to
be equally applicable to both the singular and plural forms of the terms
defined):
COMPANY -- the first Recital.
FINANCING DOCUMENTS -- means and includes this Unconditional
Guaranty, the Note Agreement, the Securities Purchase Agreements, the
Notes, and the other agreements, certificates and instruments to be
executed pursuant to the terms of each of the foregoing, as each may be
amended, restated or otherwise modified from time to time.
GUARANTIED OBLIGATIONS -- Section 2. 1.
GUARANTORS -- the introductory paragraph.
NOTE AGREEMENT -- the first Recital.
NOTEHOLDER -- means, at any time, each Person that is the
holder of any Note at such time.
NOTES -- the first Recital.
ORIGINAL GUARANTOR -- the introductory paragraph.
PURCHASERS -- the first Recital.
UNCONDITIONAL GUARANTY, THIS -- the introductory paragraph.
4.2. SECTION HEADINGS AND CONSTRUCTION
(a) Section Headings, etc. The titles of the Sections of this
Unconditional Guaranty and the Table of Contents of this Unconditional
Guaranty appear as a matter of convenience only, do not constitute a
part hereof and shall not affect the construction hereof. The words
"herein," "hereof," "hereunder" and "hereto" refer to this
Unconditional Guaranty as a whole and not to any particular Section or
other
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subdivision. References to Sections are, unless otherwise specified,
references to Sections of this Unconditional Guaranty. References to
Annexes and Exhibits are, unless otherwise specified, references to
Annexes and Exhibits attached to this Unconditional Guaranty.
(b) Construction. Each covenant contained herein shall be
construed (absent express provision to the contrary) as being
independent of each other covenant contained herein, so that compliance
with any one covenant shall not (absent such an express contrary
provision) be deemed to excuse compliance with any other covenant.
4.3. GOVERNING LAW
THIS UNCONDITIONAL GUARANTY SHALL BE GOVERNED BY, AND CONSTRUED AND
ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT
REGARD TO ANY CONFLICTS OF LAW RULES WHICH WOULD REQUIRE THE APPLICATION OF THE
LAW OF ANY OTHER JURISDICTION.
5. MISCELLANEOUS
5.1. COMMUNICATIONS
(a) Method, Address. All communications hereunder shall be in
writing and shall be delivered either by nationwide overnight courier
or by facsimile transmission (confirmed by delivery by nationwide
overnight courier sent on the day of the sending of such facsimile
transmission). Communications to any Guarantor shall be addressed to
such Guarantor at the address of the Company as set forth in the Note
Agreement, or, at the option of any holder of Notes, as set forth on
Annex 1 or at such other address of which such Guarantor shall have
notified each holder of Notes. Communications to the holders of the
Notes shall be addressed as provided in Section 9.1 of the Note
Agreement.
(b) When Given. Any communication addressed and delivered as
herein provided shall be deemed to be received when actually delivered
to the address of the addressee (whether or not delivery is accepted)
or received by the telecopy machine of the recipient. Any communication
not so addressed and delivered shall be ineffective.
(c) Service of Process. Notwithstanding the foregoing
provisions of this Section 5.1, service of process in any suit, action
or proceeding arising out of or relating to this agreement or any
document, agreement or transaction contemplated hereby, or any action
or proceeding to execute or otherwise enforce any judgment in respect
of any breach hereunder or under any document or agreement contemplated
hereby, shall be delivered in the manner provided in Section 9.7(c) of
the Note Agreement.
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5.2. REPRODUCTION OF DOCUMENTS.
This Unconditional Guaranty and all documents relating hereto,
including, without limitation, consents, waivers and modifications that
may hereafter be executed may be reproduced by any Guarantor or any
holder of Notes by any photographic, photostatic, microfilm,
micro-card, miniature photographic, digital or other similar process
and each holder of Notes may destroy any original document so
reproduced. Any such reproduction shall be admissible in evidence as
the original itself in any judicial or administrative proceeding
(whether or not the original is in existence and whether or not such
reproduction was made by such Guarantor or such holder of Notes in the
regular course of business) and any enlargement, facsimile or further
reproduction of such reproduction shall likewise be admissible in
evidence. Nothing in this Section 5.2 shall prohibit any Guarantor or
holder of Notes from contesting the accuracy or validity of any such
reproduction.
5.3. SURVIVAL, ENTIRE AGREEMENT.
All warranties, representations, certifications and covenants
contained herein, in the Securities Purchase Agreement or in any
certificate or other instrument delivered hereunder shall be considered
to have been relied upon by the other parties hereto and shall survive
the delivery to you of the Notes regardless of any investigation made
by or on behalf of any party hereto. All statements in any certificate
or other instrument delivered pursuant to the terms hereof or of the
Securities Purchase Agreement shall constitute warranties and
representations hereunder. All obligations hereunder (other than
payment of the Guarantied Obligations, but including, without
limitation, reimbursement obligations in respect of costs, expenses and
fees) shall survive the payment of the Notes and the termination
hereof. Subject to the preceding sentence, this Unconditional Guaranty
and the other Financing Documents embody the entire agreement and
understanding among the Guarantors and the Purchasers, and supersede
all prior agreements and understandings, relating to the subject matter
hereof.
5.4. SUCCESSORS AND ASSIGNS
This Unconditional Guaranty shall inure to the benefit of and
be binding upon the successors and assigns of each of the parties
hereto. The provisions hereof are intended to be for the benefit of all
holders, from time to time, of Notes, and shall be enforceable by any
such holder whether or not an express assignment to such holder of
rights hereunder shall have been made by any holder. Anything contained
in this Section 5.4 notwithstanding, no Guarantor may assign any of its
respective rights, duties or obligations hereunder or under any of the
other Financing Documents without the prior written consent of all
holders of Notes.
5.5. AMENDMENT
This Unconditional Guaranty may be amended in accordance with Section
5.7 and this Unconditional Guaranty may be further amended, and the observance
of any term hereof may be waived (either retroactively or prospectively), with
(and only with) the
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written consent of each Guarantor and the Required Holders, except that no
amendment or waiver of any of the provisions of Section 2.1, or any defined term
as it is used therein, will be effective unless consented to by each Guarantor
and each Noteholder in writing; provided that this Unconditional Guaranty may,
in the manner specified in Section 5.7, be amended to add one or more new
Guarantors hereunder without the consent of any other Guarantor or any holder of
Notes.
5.6. BENEFITS OF GUARANTY RESTRICTED TO NOTEHOLDERS
Nothing express or implied in this Unconditional Guaranty is intended
or shall be construed to give to any Person other than the Guarantors and the
Noteholders any legal or equitable right, remedy or claim under or in respect
hereof or any covenant, condition or provision therein or herein contained, and
all such covenants, conditions and provisions are and shall be held to be for
the sole and exclusive benefit of the Guarantors and the Noteholders.
5.7. JOINDER AGREEMENT
Upon execution and delivery by any Person of a counterpart of a Joinder
Agreement substantially in the form attached to this Unconditional Guaranty as
Annex 2, this Unconditional Guaranty shall for all purposes, without further
action, be deemed to have been amended to add such Person as a Guarantor
hereunder with the same effect as if such Person had been an original party
hereto.
(a) Waiver of Jury Trial; Consent to Jurisdiction; Etc
(a) Waiver of Jury Trial. TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, THE PARTIES HERETO VOLUNTARILY
AND INTENTIONALLY WAIVE ANY RIGHT ANY OF THEM MAY HAVE TO A
TRIAL BY JURY IN RESPECT OF ANY LITIGATION ARISING OUT OF,
UNDER OR IN CONNECTION WITH THIS UNCONDITIONAL GUARANTY OR ANY
OF THE DOCUMENTS, AGREEMENTS OR TRANSACTIONS CONTEMPLATED
HEREBY.
(b) Consent to Jurisdiction. ANY SUIT, ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS UNCONDITIONAL
GUARANTY OR ANY OF THE DOCUMENTS, AGREEMENTS OR TRANSACTIONS
CONTEMPLATED HEREBY OR ANY ACTION OR PROCEEDING TO EXECUTE OR
OTHERWISE ENFORCE ANY JUDGMENT IN RESPECT OF ANY BREACH UNDER
THIS UNCONDITIONAL GUARANTY OR ANY DOCUMENT OR AGREEMENT
CONTEMPLATED HEREBY MAY BE BROUGHT BY SUCH PARTY IN ANY
FEDERAL DISTRICT COURT LOCATED IN NEW YORK CITY, NEW YORK OR
ANY NEW YORK STATE COURT LOCATED IN NEW YORK CITY, NEW YORK AS
SUCH PARTY MAY IN ITS SOLE DISCRETION ELECT, AND BY THE
EXECUTION AND DELIVERY OF THIS UNCONDITIONAL GUARANTY, EACH
GUARANTOR HERETO IRREVOCABLY AND UNCONDITIONALLY SUBMITS TO
THE NON-EXCLUSIVE IN PERSONAM JURISDICTION OF EACH SUCH
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17
COURT, AND EACH GUARANTOR HERETO IRREVOCABLY WAIVES AND AGREES
NOT TO ASSERT IN ANY PROCEEDING BEFORE ANY TRIBUNAL, BY WAY OF
MOTION, AS A DEFENSE OR OTHERWISE, ANY CLAIM THAT IT IS NOT
SUBJECT TO THE IN PERSONAM JURISDICTION OF ANY SUCH COURT. IN
ADDITION, EACH GUARANTOR IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY LAW, ANY OBJECTION THAT IT MAY NOW OR
HEREAFTER HAVE TO THE LAYING OF VENUE IN ANY SUIT, ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS UNCONDITIONAL
GUARANTY OR ANY DOCUMENT, AGREEMENT OR TRANSACTION
CONTEMPLATED HEREBY BROUGHT IN ANY SUCH COURT, AND HEREBY
IRREVOCABLY WAIVES ANY CLAIM THAT ANY SUCH SUIT, ACTION OR
PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM.
(c) Service of Process. EACH GUARANTOR IRREVOCABLY
AGREES THAT PROCESS PERSONALLY SERVED OR SERVED BY U.S.
REGISTERED MAIL AT THE ADDRESSES PROVIDED HEREIN FOR NOTICES
SHALL CONSTITUTE, TO THE EXTENT PERMITTED BY LAW, ADEQUATE
SERVICE OF PROCESS IN ANY SUIT, ACTION OR PROCEEDING ARISING
OUT OF OR RELATING TO THIS UNCONDITIONAL GUARANTY OR ANY
DOCUMENT, AGREEMENT OR TRANSACTION CONTEMPLATED HEREBY, OR ANY
ACTION OR PROCEEDING TO EXECUTE OR OTHERWISE ENFORCE ANY
JUDGMENT IN RESPECT OF ANY BREACH HEREUNDER OR UNDER ANY
DOCUMENT OR AGREEMENT CONTEMPLATED HEREBY. RECEIPT OF PROCESS
S SO SERVED SHALL BE CONCLUSIVELY PRESUMED AS EVIDENCED BY A
DELIVERY RECEIPT FURNISHED BY THE UNITED STATES POSTAL SERVICE
OR ANY COMMERCIAL DELIVERY SERVICE.
(d) Other Forums. NOTHING HEREIN SHALL IN ANY WAY BE
DEEMED TO LIMIT THE ABILITY OF ANY HOLDER OF NOTES TO SERVE
ANY WRITS, PROCESS OR SUMMONSES IN ANY MANNER PERMITTED BY
APPLICABLE LAW OR TO OBTAIN JURISDICTION OVER ANY GUARANTOR IN
SUCH OTHER JURISDICTION, AND IN SUCH OTHER MANNER, AS MAY BE
PERMITTED BY APPLICABLE LAW.
(a) Execution in Counterpart. This Unconditional Guaranty may
be executed in one or more counterparts and shall be effective when at
least one counterpart shall have been executed by each party hereto,
and each set of counterparts that, collectively, show execution by each
party hereto shall constitute one duplicate original.
[REMAINDER OF PAGE INTENTIONALLY BLANK. NEXT PAGE IS SIGNATURE PAGE.]
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IN WITNESS WHEREOF, each Guarantor has caused this Unconditional
Guaranty to be executed on its behalf by one of its duly authorized officers.
QUESTRON TECHNOLOGY, INC.
QUESTRON FINANCE CORP.
QUESTRON DISTRIBUTION LOGISTICS,
INC.
COMP XXXX, INC.
POWER COMPONENTS, INC.
INTEGRATED MATERIAL SYSTEMS, INC.
CALIFORNIA FASTENERS, INC.
FAS-TRONICS, INC.
FORTUNE INDUSTRIES, INC.
CAPITAL FASTENERS, INC.
ACTION THREADED PRODUCTS, INC.
ACTION THREADED PRODUCTS OF
GEORGIA, INC.
ACTION THREADED PRODUCTS OF
MINNESOTA, INC.
R.D.S. SALES CO., INC
B&G SUPPLY COMPANY, INC.
By_________________________________
Name:
Title:
[Signature Page to Unconditional Guaranty]
19
ANNEX 1
ADDRESSES OF GUARANTORS
QUESTRON TECHNOLOGY, INC.
0000 Xxxxxxxx Xxx., Xxxxx 0000
Xxxx Xxxxx, Xxxxxxx 00000
QUESTRON FINANCE CORP.
c/o Questron Technology, Inc.
0000 Xxxxxxxx Xxx., Xxxxx 0000
Xxxx Xxxxx, Xxxxxxx 00000
QUESTRON DISTRIBUTION LOGISTICS, INC.
c/o Questron Technology, Inc.
0000 Xxxxxxxx Xxx., Xxxxx 0000
Xxxx Xxxxx, Xxxxxxx 00000
COMP XXXX, INC.
c/o Questron Technology, Inc.
0000 Xxxxxxxx Xxx., Xxxxx 0000
Xxxx Xxxxx, Xxxxxxx 00000
POWER COMPONENTS, INC.
c/o Questron Technology, Inc.
0000 Xxxxxxxx Xxx., Xxxxx 0000
Xxxx Xxxxx, Xxxxxxx 00000
INTEGRATED MATERIAL SYSTEMS, INC.
c/o Questron Technology, Inc.
0000 Xxxxxxxx Xxx., Xxxxx 0000
Xxxx Xxxxx, Xxxxxxx 00000
CALIFORNIA FASTENERS, INC.
c/o Questron Technology, Inc.
0000 Xxxxxxxx Xxx., Xxxxx 0000
Xxxx Xxxxx, Xxxxxxx 00000
FAS-TRONICS, INC.
c/o Questron Technology, Inc.
0000 Xxxxxxxx Xxx., Xxxxx 0000
Xxxx Xxxxx, Xxxxxxx 00000
Annex 1-1
20
FORTUNE INDUSTRIES, INC.
c/o Questron Technology, Inc.
0000 Xxxxxxxx Xxx., Xxxxx 0000
Xxxx Xxxxx, Xxxxxxx 00000
CAPITAL FASTENERS, INC.
c/o Questron Technology, Inc.
0000 Xxxxxxxx Xxx., Xxxxx 0000
Xxxx Xxxxx, Xxxxxxx 00000
ACTION THREADED PRODUCTS, INC.
c/o Questron Technology, Inc.
0000 Xxxxxxxx Xxx., Xxxxx 0000
Xxxx Xxxxx, Xxxxxxx 00000
ACTION THREADED PRODUCTS OF GEORGIA, INC.
c/o Questron Technology, Inc.
0000 Xxxxxxxx Xxx., Xxxxx 0000
Xxxx Xxxxx, Xxxxxxx 00000
ACTION THREADED PRODUCTS OF MINNESOTA, INC.
c/o Questron Technology, Inc.
0000 Xxxxxxxx Xxx., Xxxxx 0000
Xxxx Xxxxx, Xxxxxxx 00000
B&G SUPPLY COMPANY, INC.
c/o Questron Technology, Inc.
0000 Xxxxxxxx Xxx., Xxxxx 0000
Xxxx Xxxxx, Xxxxxxx 00000
R.S.D. SALES CO., INC.
c/o Questron Technology, Inc.
0000 Xxxxxxxx Xxx., Xxxxx 0000
Xxxx Xxxxx, Xxxxxxx 00000
Annex 1-2
21
ANNEX 2
[FORM OF JOINDER AGREEMENT]
JOINDER AGREEMENT
[Date]
To each of the Noteholders
(as defined in the Unconditional Guaranty hereinafter referred to)
Ladies and Gentlemen:
Reference is made to the Unconditional Guaranty, dated as of November
8, 2000 (as amended, restated or otherwise modified from time to time, the
"UNCONDITIONAL GUARANTY"), by QUESTRON FINANCE CORP. a Delaware corporation;
QUESTRON TECHNOLOGY, INC., a Delaware corporation; QUESTRON DISTRIBUTION
LOGISTICS, INC., a Delaware corporation; COMPWARE, INC. , a Delaware
corporation; POWER COMPONENTS, INC., a Pennsylvania corporation; INTEGRATED
MATERIAL SYSTEMS, INC., a Arizona corporation; CALIFORNIA FASTENERS, INC., a
California corporation; FAS-TRONICS, INC., a Texas corporation; FORTUNE
INDUSTRIES, INC., a Texas corporation; CAPITAL FASTENERS, INC. , a North
Carolina corporation; ACTION THREADED PRODUCTS, INC., a Illinois corporation;
ACTION THREADED PRODUCTS OF GEORGIA, INC., a Georgia corporation; ACTION
THREADED PRODUCTS OF MINNESOTA, INC., a Minnesota corporation; B. G. SUPPLY
COMPANY, INC., a Texas corporation; and R.S.D. SALES CO., INC., a New York
corporation (collectively, together with each other Person that becomes or has
become a party to the Unconditional Guaranty and including their respective
successors and assigns, the "GUARANTORS"), in favor of each of the Noteholders
(as defined in the Unconditional Guaranty). Capitalized terms used herein and
not otherwise defined have the meanings ascribed to such terms in the
Unconditional Guaranty.
[NEW GUARANTOR], a ______________________ (the "NEW GUARANTOR"), agrees
with you as follows:
1. GUARANTY. The New Guarantor hereby unconditionally and expressly
agrees to become, by execution and delivery of this Agreement does become, and
assumes each and every one of the obligations of, a "Guarantor" under and as
defined in the Unconditional Guaranty. In addition, the New Guarantor makes each
and every representation and warranty of a Guarantor set forth in the
Unconditional Guaranty as of the date hereof. Without limitation of the
foregoing or of anything in the Unconditional Guaranty, by such execution and
delivery hereof the New Guarantor does become fully liable, as a Guarantor, for
the payment of the Guarantied Obligations as further provided in Section 2.1 of
the Unconditional Guaranty. As provided in Section 5.7 of the Unconditional
Guaranty, the Unconditional Guaranty is hereby amended, without any further
action, to add the New Guarantor as a Guarantor thereunder as if the New
Guarantor had been an original party to the Unconditional Guaranty. Annex 1 to
the Unconditional Guaranty is hereby amended by adding the following address of
the New Guarantor for purposes of communications
Annex 2-1
22
pursuant to Section 5.1 of the Unconditional Guaranty: [insert name and address
of New Guarantor].
2. FURTHER ASSURANCES. The New Guarantor agrees to cooperate with the
Noteholders and execute such further instruments and documents as the Required
Holders shall reasonably request to effect, to the reasonable satisfaction of
the Required Holders, the purposes of this Agreement.
3. BINDING EFFECT. This Agreement shall be binding upon the New
Guarantor and shall inure to the benefit of the Noteholders and their respective
successors and assigns.
4. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, AND THE RIGHTS OF THE PARTIES SHALL BE GOVERNED BY, THE LAW OF
THE STATE OF NEW YORK, EXCLUDING CHOICE-OF-LAW PRINCIPLES OF THE LAW OF SUCH
STATE THAT WOULD REQUIRE THE APPLICATION OF THE LAWS OF A JURISDICTION OTHER
THAN SUCH STATE.
Annex 2-2
23
IN WITNESS WHEREOF, the New Guarantor has caused this Agreement to be
executed on its behalf by one of its duly authorized officers.
[NEW GUARANTOR]
By________________________________
Name:
Title:
Annex 2-3
