EXHIBIT 10 (e)
GUARANTY CONFIRMATION AGREEMENT
AGREEMENT, dated as of August 31, 1998, by and between T.F. CUSHING, INC. and
AVEST, INC. (each a "Guarantor" and collectively the "Guarantors") and FLEET
NATIONAL BANK (the "Bank").
R E C I T A L S
Each Guarantor executed and delivered to the Bank a Guaranty Agreement, dated as
of July 9, 1997 (each, a "Guaranty") pursuant to which each Guarantor absolutely
and unconditionally guaranteed to the Bank the full and prompt payment and
performance when due of the "Guaranteed Obligations" of ASTREX INC. (the
"Borrower") to the Bank, all as set forth in more detail therein. The Bank, T.F.
Cushing, Inc. and the Borrower desire to enter into a certain Amendment No. 1
dated of even or substantially even date herewith.
Each Guarantor shall derive substantial benefits, financial and otherwise, from
the execution and delivery of such Amendment No. 1 and any agreement or
instrument executed in connection therewith (including without limitation any
and all amended and restated notes).
The Bank is only willing to enter into such Amendment No. 1 if, among other
things, each Guarantor executes and delivers this Agreement.
NOW, THEREFORE, in consideration of the premises, and for other good and
valuable consideration, the receipt and sufficiency which are hereby
acknowledged, and to induce the granting of any further credit by the Bank to
the Borrower, the parties hereto hereby agree as follows:
1. Each Guarantor hereby represents, warrants, confirms and covenants
to the bank that (i) its Guaranty remains in full force and
effect, (ii) its Guaranty remains legal, valid and binding
obligation of such Guarantor, enforceable in accordance with its
terms, (iii) such Guarantor has no claims, counterclaims, defenses
or offsets against the Bank, whether relating to its Guaranty or
otherwise and (iv) pursuant to the provisions of the Guaranty of
such Guarantor, the obligations of the Borrower guaranteed by the
Guarantor pursuant to the Guaranty include without limitation, for
the avoidance of any doubt, all principal, interest, costs, and
expenses (including attorneys' fees) under the 1998 Note ( as
defined in the above-referenced Amendment No. 1). Pursuant to the
applicable terms and provisions set forth or to be set forth in
said Amendment No. 1 (or in any other agreement or instrument)
shall affect the obligations of each Guarantor under its Guaranty.
2. The execution and delivery of this Agreement (or any other
confirmation (past, present, or future) shall not be construed or
interpreted to create a custom or course of dealing or performance
(or any duty or obligation) pursuant to which the Bank is required
to obtain a confirmation or consent from the Guarantor, or to
notify the Guarantor with respect to any modification or other
event or circumstance. No such consent or confirmation or notice
shall be necessary in connection with any such modification or
other event or circumstance in order to keep the obligations of
each Guarantor under its Guaranty in full force and effect, said
obligations being unconditional as set forth therein.
3. No amendment, waiver or other modification of this Agreement shall
be effective against a party hereto unless set forth in writing
signed by such party. This Agreement may be executed in
counterparts.
4. This Agreement shall (i) be binding upon and inure to the benefit
of the parties hereto and their respective successors and assigns
and (ii) shall be governed by and construed in accordance with the
internal laws of the State of Connecticut.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the day and year first written above.
T.F. CUSHING, INC.
By s/ Michael McGuire
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Its: President
AVEST, INC.
By s/ Michael McGuire
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Its: President
FLEET NATIONAL BANK
By: s/ Anthony McKiernan
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Its: Vice President