EXHIBIT 4d
CONTINUING GUARANTY
THIS CONTINUING GUARANTY (the "Guaranty") is made by
Tandy Corporation, a Delaware corporation (the "Guarantor"),
in favor of the Banks (as hereinafter defined), Texas
Commerce Bank, National Association, as a Bank and as
Administrative Agent for the other Banks and Texas Commerce
Bank National Association, as Funds Administrator for the
Banks.
PRELIMINARY STATEMENTS
WHEREAS, this Guaranty is executed and delivered
pursuant to Section 7.01(d) of that certain Revolving Credit
Agreement dated as of June 17, 1991 (the "Credit Agreement")
among the Guarantor, Tandy Credit Corporation, a Delaware
corporation ("TCC"), the Banks from time to time party
thereto (the "Banks"), Texas Commerce Bank, National
Association, as Administrative Agent (the "Administrative
Agent"), and Texas Commerce Bank National Association, as
Funds Administrator (the "Funds Administrator"); capitalized
terms used in this Guaranty which are not defined herein
shall have the same meanings as provided in the Credit
Agreement; and
WHEREAS, the Guarantor has determined that it will
receive substantial benefit if Loans are made to TCC pursuant
to the Credit Agreement and has agreed to execute and deliver
this Guaranty;
NOW, THEREFORE, in consideration of the premises, the
Guarantor agrees as follows:
SECTION 1. Guaranty. The Guarantor hereby absolutely,
unconditionally and irrevocably guarantees the punctual
payment and performance when due, whether at stated maturity,
by acceleration or otherwise, of all obligations and
covenants of TCC now or hereafter existing under the Credit
Agreement, the Notes and any of the other Loan Documents to
which it is a party whether for principal, interest
(including, without limitation, interest accruing or becoming
owing both prior to and subsequent to the commencement of any
proceeding against or with respect to TCC under any chapter
of the Bankruptcy Code of 1978, 11 U.S.C. 101 et seq.), fees,
commissions, expenses (including reasonable counsel fees,
including reasonable allocated costs of any Bank's in-house
counsel fees, and expenses) or otherwise, and all reasonable
costs and expenses, if any, incurred by the Administrative
Agent, the Funds Administrator or any Bank in connection with
enforcing any rights under this Guaranty (all such
obligations being the "Guaranteed Obligations"), and agrees
to pay any and all expenses incurred by each Bank, the
Administrative Agent and the Funds Administrator in enforcing
this Guaranty. This Guaranty is an absolute, unconditional,
present and continuing guaranty of payment and not of
collectibility and is in no way conditioned upon any attempt
to collect from TCC or any other action, occurrence or
circumstance whatsoever.
SECTION 2. Continuing Guaranty. The Guarantor
guarantees that the Guaranteed Obligations will be paid
strictly in accordance with the terms of this Guaranty, the
Notes and the other Loan Documents. The Guarantor agrees
that the Guaranteed Obligations and Loan Documents may be
extended or renewed, and Loans repaid and reborrowed in whole
or in part, without notice to or assent by the Guarantor, and
that it will remain bound upon this Guaranty notwithstanding
any extension, renewal or other alteration of any Guaranteed
Obligations or Loan Documents, or any repayment and
reborrowing of Loans. The obligations of the Guarantor under
this Guaranty shall be absolute, unconditional and
irrevocable, and shall be performed strictly in accordance
with the terms hereof under any circumstances whatsoever,
including:
(a) any extension, renewal, modification, settlement,
compromise, waiver or release in respect of any Guaranteed
Obligations, including any reduction or termination of all or
a portion of the Total Commitment or any Commitment of any
Bank;
(b) any extension, renewal, amendment, modification,
rescission, waiver or release in respect of any Loan
Documents;
(c) any release, exchange, substitution, non-perfection
or invalidity of, or failure to exercise rights or remedies
with respect to, any direct or indirect security for any
Guaranteed Obligations, including the release of the
Guarantor or other Person liable on any Guaranteed
Obligations;
(d) any change in the corporate existence, structure or
ownership of TCC, the Guarantor, or any insolvency,
bankruptcy, reorganization or other similar proceeding
affecting TCC, the Guarantor, any other guarantor or any of
their respective assets;
(e) the existence of any claim, defense, set-off or
other rights or remedies which the Guarantor at any time may
have against TCC, or TCC or the Guarantor may have at any
time against any Agent, any Bank, any other guarantor or any
other Person, whether in connection with this Guaranty, the
Loan Documents, the transactions contemplated hereby and
thereby or any other transaction;
(f) any invalidity or unenforceability for any reason
of the Credit Agreement or other Loan Documents, or any
provision of law purporting to prohibit the payment or
performance by TCC, the Guarantor or any other guarantor of
the Guaranteed Obligations or Loan Documents, or of any other
obligations to any Agent or any Bank; or
(g) any other circumstances or happening whatsoever,
whether or not similar to any of the foregoing.
SECTION 3. Effect of Debtor Relief Laws. If after
receipt of any payment of, or proceeds of any security
applied (or intended to be applied) to the payment of all or
any part of the Guaranteed Obligations, any Agent or any Bank
is for any reason compelled to surrender or voluntarily
surrenders, such payment or proceeds to any Person (a)
because such payment or application of proceeds is or may be
avoided, invalidated, declared fraudulent, set aside,
determined to be void or voidable as a preference, fraudulent
conveyance, fraudulent transfer, impermissible set-off or a
diversion of trust funds, or (b) for any other reason,
including (i) any judgment, decree or order of any court or
administrative body having jurisdiction over such Agent, any
Bank or any of their respective properties, or (ii) any
settlement or compromise of any such claim effected by such
Agent or any Bank with any such claimant (including TCC),
then the Guaranteed Obligations or part thereof intended to
be satisfied shall be reinstated and continue, and this
Guaranty shall continue in full force as if such payment or
proceeds have not been received, notwithstanding any
revocation thereof or the cancellation of any Note or any
other instrument evidencing any Guaranteed Obligations or
otherwise; and the Guarantor shall be liable to pay such
Agent and the Banks, and hereby does indemnify the Agents and
the Banks and holds them harmless for the amount of such
payment or proceeds so surrendered and all expenses
(including reasonable attorneys' fees, court costs and
expenses attributable thereto) incurred by any Agent or any
Bank in the defense of any claim made against it that any
payment or proceeds received by such Agent or any Bank in
respect of all or part of the Guaranteed Obligations must be
surrendered. The provisions of this paragraph shall survive
the termination of this Guaranty, and any satisfaction and
discharge of TCC by virtue of any payment, court order or any
federal or state law.
SECTION 4. Waiver of Subrogation. Notwithstanding any
payment or payments made by the Guarantor hereunder, or any
set-off or application by the Agents or any Bank of any
security or of any credits or claims, the Guarantor will not
assert or exercise any rights of any Agent or any Bank or of
the Guarantor against TCC to recover the amount of any
payment made by the Guarantor to such Agent or any Bank
hereunder by way of subrogation, reimbursement, contribution,
indemnity, or otherwise arising by contract or operation of
law, and the Guarantor shall not have any right of recourse
to or any claim against assets or property of TCC, whether or
not the obligations of TCC have been satisfied, all of such
rights being herein expressly waived by the Guarantor. The
Guarantor agrees not to seek contribution from any other
Person until all of the Guaranteed Obligations shall have
been paid in full and the Total Commitment is terminated. If
any amount shall nevertheless by paid to the Guarantor by TCC
prior to payment in full of the Guaranteed Obligations, such
amount shall be held in trust for the benefit of the Agents
and the Banks and shall forthwith be paid to the Funds
Administrator to be credited and applied to the Guaranteed
Obligations, whether matured or unmatured. The provisions of
this paragraph shall survive the termination of this
Guaranty, and any satisfaction and discharge of TCC by virtue
of any payment, court order or any law.
SECTION 5. Subordination. The Guarantor hereby
subordinates all indebtedness owing to it from TCC to all
indebtedness of TCC to the Agents and the Banks, and agrees
that upon the occurrence and continuance of a Default or an
Event of Default, it shall not accept any payment on the same
until payment in full of the obligations of TCC under the
Credit Agreement, the Notes and all other Loan Documents, and
shall in no circumstance whatsoever attempt to set-off or
reduce any obligations hereunder because of such
indebtedness. If any amount shall nevertheless be paid to
the Guarantor by TCC prior to payment in full of the
Guaranteed Obligations, such amount shall be held in trust
for the benefit of the Agents and the Banks and shall
forthwith be paid to the Funds Administrator to be credited
and applied to the Guaranteed Obligations, whether matured or
unmatured.
SECTION 6. Waiver. The Guarantor hereby waives
promptness, diligence, notice of acceptance and any other
notice with respect to any of the Guaranteed Obligations and
this Guaranty and waives presentment, protest, demand of
payment, notice of intent to accelerate, notice of
acceleration, notice of dishonor or nonpayment and any
requirement that the Agents or any Bank institute suit,
collection proceedings or take any other action to collect
the Guaranteed Obligations, including any requirement that
the Agents or any Bank protect, secure, perfect or insure any
Lien against any property subject thereto or exhaust any
right or take any action against TCC or any other Person or
any collateral (it being the intention of the Agents, the
Banks and the Guarantor that this Guaranty is to be a
guaranty of payment and not of collection). It shall not be
necessary for the Agents or any Banks, in order to enforce
any payment by the Guarantor hereunder, to institute suit or
exhaust its rights and remedies against TCC or any other
Person, including others liable to pay any Guaranteed
Obligations, or to enforce its rights against any security
ever given to secure payment thereof. The Guarantor hereby
expressly waives each and every right to which it may be
entitled by virtue of the suretyship laws of the State of
Texas, including, without limitation, any and all rights it
may have pursuant to Rule 31, Texas Rules of Civil Procedure,
Section 17.001 of the Texas Civil Practice and Remedies Code
and Chapter 34 of the Texas Business and Commerce Code. The
Guarantor hereby waives marshaling of assets and liabilities,
notice by any Agent or any Bank or any indebtedness or
liability to which such Bank applies or may apply any amounts
received by such Bank and of the creation, advancement,
increase, existence, extension, renewal, rearrangement and/or
modification of the Guaranteed Obligations. The Guaranty
expressly waives, to the extent permitted by applicable law,
the benefit of any and all laws providing for exemption of
property from execution or for valuation and appraisal upon
foreclosure.
SECTION 7. Full force and Effect. This Guaranty is a
continuing guaranty and shall remain in full force and effect
until payment in full of the obligations of TCC under the
Credit Agreement, the Notes and all other Loan Documents and
all other amounts payable under this Guaranty and until the
termination of the Total Commitment.
SECTION 8. Independent Obligations. The obligations
hereunder are independent of the obligations of TCC, and a
separate action or actions may be brought and prosecuted
against the Guarantor whether action is brought against TCC
or whether TCC is joined in any such action or actions.
SECTION 9. Renewals, Security, Etc. The Guarantor
authorizes the Banks or any of them, without notice or demand
and without affecting the Guarantor's liability hereunder,
from time to time, either before or after revocation hereof,
to (a) renew, compromise, extend, accelerate or otherwise
change the time for payment of, or otherwise change the terms
of the indebtedness or any part thereof, including increase
or decrease of the rate of interest thereon as provided in
the Credit Agreement; (b) take and hold security for the
payment of this Guaranty or the indebtedness guaranteed, and
exchange, enforce, waive, release, fail to perfect, sell, or
otherwise dispose of any such security; (c) apply such
security and direct the order or manner of sale thereof as
each Bank in its discretion may determine; and (d) release or
substitute any one or more of the endorsers or guarantors.
SECTION 10. Information. The Guarantor acknowledges
and agrees that it shall have the sole responsibility for
obtaining from TCC such information concerning TCC's
financial condition or business operations as the Guarantor
may require, and that the Banks have no duty at any time to
disclose to the Guarantor any information relating to the
business operations or financial condition of TCC.
SECTION 11. Set-Off. If an Event of Default shall have
occurred and be continuing, each Bank is hereby authorized at
any time and from time to time, to the fullest extent
permitted by law, to set off and apply any and all deposits
(general or special, time or demand, provisional or final) at
any time held and other indebtedness at any time owing by
such Bank to or for the credit or the account of the
Guarantor against any of and all the obligations of the
Guarantor now or hereafter existing under this Guaranty held
by such Bank, irrespective of whether or not such Bank shall
have made any demand under this Guaranty and although such
obligations may be unmatured. Each Bank agrees promptly to
notify the Guarantor after any such set-off and application
made by such Bank, but the failure to give such notice shall
not affect the validity of such set-off and application. The
rights of each Bank under this Section 11 are in addition to
other rights and remedies (including other rights of set-off)
which such Bank may have under applicable law.
SECTION 12. Powers. It is not necessary for the Banks
or any of them to inquire into the powers of TCC or of the
officers, directors, or agents acting or purporting to act on
its behalf, and any indebtedness made or created in reliance
upon the professed exercise of such powers shall be
guaranteed hereunder.
SECTION 13. Authority; Binding Obligation. The
Guarantor has all requisite power and authority to deliver
and perform its obligations under this Guaranty and all
corporate action on the Guarantor's part requisite for the
due execution, delivery and performance of this Guaranty has
been duly and effectively taken. This Guaranty constitutes
the legal, valid and binding obligation of the Guarantor
enforceable against the Guarantor in accordance with its
terms.
SECTION 14. Notices. All notices, consents, requests,
approvals, demands and other communications (collectively,
"Communications") provided for herein shall be in writing
(including telecopy or telegraphic Communications) and shall
be delivered by hand or overnight courier service, mailed or
sent by telex, graphic scanning or other telegraphic
communications equipment addressed as provided in the Credit
Agreement.
All communications given to any party hereto in accordance
with the provisions of this Guaranty shall be deemed to have
been given on the date of receipt if delivered by hand or
overnight courier service or sent by telex, telecopy or other
telegraphic communications equipment of the sender, or on the
date five Business Days after dispatch or certified or
registered mail if mailed, in each case delivered, sent or
mailed (property addressed) to such party as provided in this
Section 14 or in accordance with the latest unrevoked
direction from such party given in accordance with this
Section 14.
SECTION 15. Governing Law. This Guaranty and all other
documents executed in connection herewith, shall be deemed to
be contracts and agreements executed by the Guarantor, under
the laws of the State of Texas and of the United States of
America and for all purposes shall be governed by, and
construed and interpreted in accordance with, the laws of
said state (without regard to principles of conflicts of law)
and of the United States of America.
SECTION 16. Waivers; Amendments. (a) No failure or
delay of any Agent or any Bank in exercising any power or
right hereunder shall operate as a waiver thereof, nor shall
any single or partial exercise of any such right or power, or
any abandonment or discontinuance of steps to enforce such a
right or power, preclude any other or further exercise
thereof or the exercise of any other right or power. The
rights and remedies of the Agents and the Banks hereunder are
cumulative and not exclusive of any rights or remedies which
they would otherwise have. No waive of any provision of this
Guaranty or consent to any departure by the Guarantor
therefrom shall in any event be effective unless the same
shall be authorized as provided in paragraph (b) below, and
then such waiver or consent shall be effective only in the
specific instance and for the purpose for which given. No
notice or demand on the Guarantor in any case shall entitle
the Guarantor to any other or further notice or demand in
similar or other circumstances.
(b) Neither this Guaranty nor any provisions hereof may
be waived, amended or modified except pursuant to an
agreement or agreements in writing entered into by the
Guarantor and the Required Banks.
SECTION 17. Usury. Notwithstanding any other
provisions herein contained, no provision of this Guaranty
shall require or permit the collection from the Guarantor of
interest in excess of the maximum rate or amount that the
Guarantor may be required or permitted to pay pursuant to any
applicable law nor prevent the Guarantor from successfully
asserting the claim or defense of usury.
SECTION 18. Severability. In the event any one or more
of the provisions contained in this Guaranty should be held
invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining
provisions contained herein or therein shall not in any way
be affected or impaired thereby. The parties shall endeavor
in good faith negotiations to replace the invalid, illegal or
unenforceable provisions with valid provisions, the economic
effect of which comes as close as possible to that of the
invalid, illegal or unenforceable provisions.
SECTION 19. Counterparts. 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 contract, and shall become effective
as provided in Section 20.
SECTION 20. Binding Effect. This Guaranty shall become
effective on the date it is executed by the Guarantor, and
thereafter shall be binding upon and inure to the benefit of
each Agent and each Bank and their respective successors and
assigns. Without limiting the generality of the foregoing,
any Bank may assign or otherwise transfer a portion of its
Notes to any other Person in accordance with the Credit
Agreement, and such other Person shall thereupon become
vested with all the rights in respect thereof granted to the
Banks herein or otherwise.
SECTION 21. Captions. The captions in this Guaranty
have been inserted for convenience only and shall be given no
substantive meaning or significance whatever in construing
the terms and provisions of this Guaranty.
SECTION 22. Further Assurances. The Guarantor hereby
agrees to execute and deliver all such instruments and take
all such action as any Agent or the Banks may from time to
time reasonably request in order to fully effectuate the
purpose of this Guaranty.
SECTION 23. Support Agreement. Upon the execution and
delivery of this Guaranty in accordance with the terms of
Section 7.01(d) of the Credit Agreement and so long as this
Guaranty remains in full force and effect, the Agents and the
Banks shall no longer be entitled to the benefits, and shall
not be considered third-party beneficiaries, of the Support
Agreement.
SECTION 24. FINAL AGREEMENT OF THE PARTIES. THIS
GUARANTY AND THE OTHER LOAN DOCUMENTS CONSTITUTE A "LOAN
AGREEMENT" FOR PURPOSES OF SECTION 26.02(a) OF THE TEXAS
BUSINESS AND COMMERCE CODE, AND REPRESENT 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 ORAL AGREEMENTS BETWEEN THE
PARTIES.
Executed as of June 18, 1991.
Guarantor:
TANDY CORPORATION
By:___________________________
Name:_________________________
Title:________________________