Exhibit 10(d)
GUARANTY CONFIRMATION AGREEMENT (WITH MODIFICATIONS)
AGREEMENT, dated as of May 14_, 1999, 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
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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. On or
about August 31, 1998, the Bank, T. F. Cushing, Inc. and the Borrower entered
into a certain Amendment No. 1 to Credit and Security Agreement, dated as of
August 31, 1998 ("Amendment No. 1"), and each Guarantor executed and delivered a
Guaranty Confirmation Agreement dated as of August 31, 1998 in connection
therewith. On or about December 18, 1998, the Bank, T. F. Cushing, Inc. and the
Borrower entered into a certain Amendment No. 2 to Credit and Security
Agreement, dated as of December 18, 1998 ("Amendment No. 2"), and each Guarantor
executed and delivered a Guaranty Confirmation Agreement dated as of December
18, 1998 in connection therewith. The Bank, T. F. Cushing, Inc. and the Borrower
now desire to enter into a certain Amendment No. 3 to Credit and Security
Agreement dated of even or substantially even date herewith ("Amendment No. 3").
Each Guarantor shall derive substantial benefits, financial and
otherwise, from the execution and delivery of such Amendment No. 3 and any
agreement or instrument executed in connection therewith (including without
limitation any and all amended and restated revolving credit notes and any and
all term loan notes).
The Bank is only willing to enter into such Amendment No. 3 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 the 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 Notes (as defined in Amendment No. 3) and any and all obligations
under any swap or hedging agreements. Pursuant to the applicable terms and
provisions of each Guaranty, neither the modifications set forth or to be set
forth in said Amendment No. 1, Amendment No. 2 or Amendment No. 3 (or in any
other agreement or instrument) shall impair the obligations of each Guarantor
under its Guaranty.
2. Each of the Guarantors and the Bank hereby agree that each
occurrence in the Guaranty of the phrase "the Note" is hereby deleted and
replaced with the phrase "the Notes".
3. AVEST, INC. hereby confirms that its obligations under its Guaranty,
to the extent same relate to the Term Loan Note (as defined in Amendment No. 3
and the certain Credit Agreement amended thereby), are secured by a mortgage of
even or substantially even date herewith (and related financing statements) from
AVEST, INC. to the Bank. AVEST, INC. and the Bank hereby agree that, so long as
said mortgage remains in effect, AVEST, INC.'s Guaranty shall be amended as
follows: (a) Section 20 shall be dormant (with said mortgage governing the
matters covered by Section 20), and (b) Subsection 3(e) shall include, just
before its final period, the phrase ", except for any Liens created by AVEST,
INC. in favor of the Bank under any mortgage (and related financing
statements)".
4. Anything contained in any Guaranty to the contrary notwithstanding,
in the event that the obligations of a Guarantor under its Guaranty would, if
not for this sentence, be deemed to constitute a fraudulent conveyance under any
applicable state or federal fraudulent conveyance law, the obligations of such
Guarantor under such Guaranty shall be limited to an aggregate amount equal to
the largest amount that would not render its obligations subject to avoidance
under such law. In the event the immediately preceding sentence becomes
operative with respect to AVEST, INC., AVEST INC. hereby agrees that its
obligations under its Guaranty not relating to the such Term Loan Note shall be
reduced first before its obligations under its Guaranty relating to such Term
Loan Note shall be reduced.
5. 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.
6. 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.
7. 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.
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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/ Richard Bochiccio
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Its: Senior Vice President