Exhibit C
GUARANTY
GUARANTY, dated as of November 11, 1996 by Fidelity
Investors Limited Partnership, a Delaware limited
partnership (the "Guarantor"), in favor of The Strober
Organization, Inc., a Delaware corporation (the "Company").
Recitals
The Company is a party to an Agreement and Plan of
Merger (the "Merger Agreement") dated as of the date hereof
by and among the Company, Xxxxxxxx Acquisition LLC
("Parent") and Xxxxxxxx NY Acquisition Corp. ("Acquisition
Sub"), pursuant to which Acquisition Sub will be merged with
and into the Company (the "Merger"), with the resulting
entity being an indirect subsidiary of Parent. Guarantor
has advised the Company that (i) the Guarantor is a member
of Parent, a Delaware limited liability company and
(ii) Parent owns all of the issued and outstanding capital
stock of Acquisition Sub. Parent and Acquisition Sub are
entities newly created for the purpose of effecting the
Merger. The Company has required that the Guarantor execute
this Guaranty to provide assurances that the Company will
receive any amounts which may become due from Parent and/or
Acquisition Sub in connection with the performance of the
Parent's and/or Acquisition Sub's respective obligations
under the Merger Agreement. The Guarantor is willing to
execute this Guaranty to induce the Company to enter into
the Merger Agreement.
NOW, THEREFORE in consideration of the premises and for
other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Guarantor
hereby agrees as follows:
1. Section Guaranty of Payment and Performance. The
Guarantor hereby absolutely, unconditionally and irrevocably
guarantees to the Company that each of Parent and
Acquisition Sub will perform all of its obligations subject
to and under the Merger Agreement, including the timely
payment of all amounts due thereunder and the Proxy
Agreement (define) (collectively, the "Obligations").
Anything to the contrary in this Guaranty notwithstanding,
the involvement of Parent or Acquisition Sub or both in
insolvency, bankruptcy or similar proceedings as a debtor
shall not in any manner modify, reduce or otherwise affect
the Guarantor's obligation under this Guaranty.
1. Section Waivers by Guarantor; Agent's Freedom to Act.
The Guarantor waives presentment, demand, protest, notice of
acceptance 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
Parent, Acquisition Sub or the Guarantor, and all suretyship
defenses generally. Without limiting the generality of
Section 1 or the foregoing part of this Section 2, the
Guarantor agrees that the obligations of the Guarantor
hereunder shall not be released or discharged, in whole or
in part, or otherwise modified or affected by any of the
following, whether or not any one or more such events or
circumstances occur at one or more times and/or from time to
time, and whether or not with notice to, or the consent of,
Guarantor (i) any compromises, settlements, extensions,
rescissions, waivers, amendments or other modifications of
any kind or nature of any of the terms or provisions of any
agreement evidencing, securing or otherwise executed in
connection with the Obligations; (ii) the substitution or
release in whole or in part of any entity primarily or
secondarily liable for the Obligations; (iii) the adequacy
of any rights the Company may have against any collateral or
other means of obtaining repayment of the Obligations; or
(iv) any event or circumstance which could otherwise
constitute a legal or equitable discharge or defense in
whole or in part (other than full and complete performance
or payment in full of the Obligations and performance of
Guarantor's other agreements contained in this Guaranty).
1. Section Subrogation; Subordination. Until the
payment and performance in full of all Obligations, the
Guarantor shall not exercise any rights against Parent or
Acquisition Sub arising as a result of payment by the
Guarantor hereunder, by way of subrogation or otherwise, and
will not prove any claim in competition with the Company in
respect of any payment hereunder in bankruptcy or insolvency
proceedings of any nature; and the Guarantor will not claim
any set-off or counterclaim against Parent or Acquisition
Sub in respect of any liability of the Guarantor to Parent
or Acquisition Sub. The payment of any amounts due with
respect to any indebtedness of Parent or Acquisition Sub now
or hereafter held by the Guarantor is hereby subordinated to
the prior payment in full of the Obligations. If the
Guarantor shall collect, enforce or receive any amounts in
respect of indebtedness of Parent or Acquisition Sub, such
amounts shall be collected, enforced and received by the
Guarantor as trustee for the Company and be paid over to the
Company, on account of the Obligations without affecting in
any manner the liability of the Guarantor under the other
provisions of this Guaranty.
1. Section Due Authorization; Financial Statements. The
Guarantor hereby represents and warrants to the Company that
(a) the Guarantor is duly authorized to execute and deliver
this Agreement and to perform its obligations hereunder and
that this Guaranty constitutes the legal and valid
obligation of Guarantor and (b) the financial statements
previously delivered to the Company by the Guarantor are
true and correct in all material respects.
1. Section Termination. This Guaranty shall remain in
full force and effect until all Obligations are indefeasibly
paid in full and this Guaranty shall continue to be
effective or be reinstated, as the case may be, if at any
time any performance or payment of any of the Obligations or
any of the agreements of Guarantor contained in this
Guaranty is rescinded or, in the case of payments, must
otherwise be returned for any reason (including, without
limitation, the insolvency, bankruptcy or reorganization of
Parent or Acquisition Sub) all as though such payment had
not been made, notwithstanding anything to the contrary in
this Guaranty.
1. Section Freedom to Act. The Company shall in its
sole discretion have the right to proceed first directly
against Guarantor under this Guaranty without proceeding
against Parent or Acquisition Sub or both, as applicable,
including, without limitation, without exhausting any other
rights or remedies which the Company may have and without
resorting to any collateral or other security, if any, held
by the Company.
1. Section Successors and Assigns. This Guaranty shall
be binding upon the Guarantor, its successors and assigns,
and shall inure to the benefit of and be enforceable by the
Company and its successors, transferees and assigns, and its
permitted transferees and assigns.
1. Section Amendments and Waivers. No amendment or
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 the
Company and the Guarantor. No failure on the part of the
Company to exercise, and no delay in exercising, any right
hereunder shall operate as a waiver thereof; nor shall any
single or partial exercise of any right hereunder preclude
any other or further exercise thereof or the exercise of any
other right.
1. Section Notices. All notices and other
communications called for hereunder shall be made in writing
and, unless otherwise specifically provided herein, shall be
deemed to have been duly made or given to a party when
delivered by hand or mailed first class mail postage prepaid
or, in the case of telegraphic or telexed notice, when
transmitted, answer back received, addressed to the address
set forth beneath such party's signature hereto, or at such
other address as either party may designate in writing.
1. Section Governing Law; Consent to Jurisdiction. The
validity, interpretation, performance and enforcement of
this Agreement shall be governed by the laws of the State of
Delaware. The parties hereby irrevocably and
unconditionally consent to the jurisdiction of the Chancery
Court of the State of Delaware for any action, suit or
proceeding arising out of or relating to this Agreement or
the transactions contemplated hereby. The parties further
irrevocably and unconditionally waive any objection to the
laying of venue of any action, suit or proceeding arising
out of or relating to this Agreement in the Chancery Court
of the State of Delaware, and hereby further irrevocably and
unconditionally waive and agree not to plead or claim in
such court that any such action, suit or proceeding brought
in such court has been brought in an inconvenient forum.
Each party further agrees that service of any process,
summons, notice or document by U.S. registered mail to the
address set forth beneath such party's signature hereto
shall be effective service of process for any action, suit
or proceeding brought against such party in such court.
1. Section Miscellaneous. This Guaranty constitutes the
entire agreement of the Guarantor and the Company with
respect to the matters set forth herein. The rights and
remedies herein provided are cumulative and not exclusive of
any remedies provided by law or any other agreement, and
this Guaranty shall be in addition to any other guaranty of
the Obligations. Captions are for the ease of reference
only and shall not affect the meaning of the relevant
provisions. The meanings of all defined terms used in this
Guaranty shall be equally applicable to the singular and
plural forms of the terms defined. If any provision of this
Guaranty or the application thereof to any person or entity
or circumstance shall be invalid or unenforceable to any
extent, (i) the remainder of this Guaranty and the
application of such provision to other persons, entities or
circumstances shall not be effected thereby and (ii) each
such provision shall be enforced to the greatest extent
permitted by law. This Guaranty may be executed in two or
more counterparts, each of which shall constitute an
original, but all of which when taken together shall
constitute but one agreement.
IN WITNESS WHEREOF, the parties hereto have caused this
Guaranty to be executed and delivered by their duly
authorized officers as of the date appearing on page one.
FIDELITY INVESTORS
LIMITED PARTNERSHIP
By: Fidelity Investors Management Corp.,
its General Partner
By:/s/ Xxxx X. Xxxxxxx
Its: President
Address:
c/o Fidelity Capital Asociates, Inc.
00 Xxxxxxxxxx Xxxxxx, X00X
Xxxxxx, XX 00000-0000
Attn: Xx. Xxxx X. Xxxxxxx
with a copy to:
Fidelity Capital Associates, Inc.
00 Xxxxxxxxxx Xxxxxx, X00X
Xxxxxx, XX 00000-0000
Attn: Xxxxxx X. Xxxxxx, Esq.
and a copy to:
Xxxxxxx, Procter & Xxxx XXX
Xxxxxxxx Xxxxx
Xxxxxx, XX 00000
Attn: Xxxxx X. Xxxxxx Xxxxxx, P.C.
THE STROBER ORGANIZATION, INC.
By:/s/ Xxxxxx X. Xxxxxx
Its: President and Chief Executive
Officer
Address:
000 Xxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attn: President
with a copy to:
Sills, Cummis, Zuckerman, Radin,
Tischman, Xxxxxxx & Xxxxx
The Legal Center
Xxx Xxxxxxxxxx Xxxxx
Xxxxxx, XX 00000
attn: Xxxxxxx X. North, III, Esq.
