EXHIBIT 10.28
GUARANTY BY CORPORATION
(XXXXXXX ELECTRIC HOLDINGS, INC.)
Minneapolis, Minnesota
December 22, 1998
This Guaranty, dated as of December 22, 1998, is made by XXXXXXX
ELECTRIC HOLDINGS, INC., a Delaware corporation (the "Guarantor") for the
benefit of Norwest Bank Minnesota, National Association, a national banking
association as agent (in such capacity, the "Agent") for the Banks, as defined
in the Credit Agreement described below.
Pursuant to a Credit Agreement of even date herewith (such agreement,
together with all amendments, modifications and restatements thereof, being
herein called the "Credit Agreement"), the Banks have agreed to make advances
and extend other financial accommodations to Nationwide Electric, Inc., a
Delaware corporation (the "Borrower").
As a condition to extending such credit to the Borrower, the Banks
have required the execution and delivery of this Guaranty, a Security Agreement
and a Collateral Pledge Agreement of even date herewith.
ACCORDINGLY, the Guarantor, in consideration of the premises and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, hereby agrees as follows:
1. Definitions. All terms defined in the Credit Agreement that are
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not otherwise defined herein shall have the meanings given them in the Credit
Agreement.
2. Guaranty. The Guarantor hereby absolutely and unconditionally to
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the Agent and the Banks the full and prompt payment when due, whether at
maturity or earlier by reason of acceleration or otherwise, of (i) the
Obligations and (ii) each and every other sum now or hereafter owing to a Bank
by the Borrower, including but not limited to, debts, liabilities and
obligations arising out of loans, credit transactions, financial accommodations,
discounts, purchases of property or other transactions with the Borrower or for
the Borrower's account or out of any other transaction or event, owed to a Bank
or owed to others by reason of participations granted to or interests acquired
or created for or sold to them by a Bank, in each case whether now existing or
hereafter arising, whether arising directly in a transaction or event involving
a Bank or acquired by a Bank from another by purchase or assignment or as
collateral security, whether owed by the Borrower as drawer, maker, endorser,
accommodation party, guarantor, principal, surety or as a member of any
partnership, syndicate, association or group or in any other capacity, whether
absolute or contingent, direct or indirect, primary or secondary, sole, joint,
several or joint and several, secured or unsecured, due or not due, contractual,
tortious or statutory, liquidated or unliquidated, arising by agreement or
imposed by law or otherwise (all of said sums being hereinafter called the
"Indebtedness").
3. Guarantor's Representations and Warranties. The Guarantor
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represents and warrants to the Agent and the Banks that (i) the Guarantor is a
corporation, duly organized and existing in good standing and has full power and
authority to make and deliver this Guaranty; (ii) the execution, delivery and
performance of this Guaranty by the Guarantor have been duly authorized by all
necessary action of its board of directors and shareholders and do not and will
not violate the provisions of, or constitute a default under, any presently
applicable law or its articles of incorporation or bylaws or any agreement
presently binding on it; (iii) this Guaranty has been duly executed and
delivered by the authorized officer of the Guarantor and constitutes its lawful,
binding and legally enforceable obligation; and (iv) the authorization,
execution, delivery and performance of this Guaranty do not require notification
to, registration with, or consent or approval by, any federal, state or local
regulatory body or administrative agency. The Guarantor further represents and
warrants to Agent and the Banks that the Guarantor has a direct and substantial
economic interest in the Borrower and expects to derive substantial benefits
therefrom and from any loans, credit transactions, financial accommodations,
discounts, purchases of property and other transactions and events resulting in
the creation of the Indebtedness guarantied hereby, and that this Guaranty is
given for a business purpose. The Guarantor agrees to rely exclusively on the
right to revoke this Guaranty prospectively as to future transactions, in
accordance with paragraph 4, if at any time, in the opinion of the board of
directors of the Guarantor or its officers, the benefits then being received by
the Guarantor in connection with this Guaranty are not sufficient to warrant the
continuance of this Guaranty as to the future Indebtedness of the Borrower.
Accordingly, so long as this Guaranty is not revoked prospectively in accordance
with paragraph 4, the Banks or the Agent may rely conclusively on a continuing
warranty, hereby made, that the Guarantor continues to be benefitted by this
Guaranty and the Banks or the Agent shall have no duty to inquire into or
confirm the receipt of any such benefits, and this Guaranty shall be effective
and enforceable by the Banks or the Agent without regard to the receipt, nature
or value of any such benefits.
4. Unconditional Nature. No act or thing need occur to establish the
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Guarantor's liability hereunder, and no act or thing, except full payment and
discharge of all of the Indebtedness, shall in any way exonerate the Guarantor
hereunder or modify, reduce, limit or release the Guarantor's liability
hereunder. This is an absolute, unconditional and continuing guaranty of payment
of the Indebtedness and shall continue to be in force and be binding upon the
Guarantor, whether or not all of the Indebtedness is paid in full, until this
Guaranty is revoked prospectively as to future transactions, by written notice
actually received by the Agent, and such revocation shall not be effective as to
the amount of Indebtedness existing or committed for at the time of actual
receipt of such notice by the Agent, or as to any renewals, extensions,
refinancings or refundings thereof.
5. Disolution or Insolvency of Guarantor. The dissolution or
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adjudication of bankruptcy of the Guarantor shall not revoke this Guaranty,
except upon actual receipt of written notice thereof by the Agent and only
prospectively, as to future transactions, as herein set forth. If the Guarantor
shall be dissolved or shall be or become insolvent (however defined), then the
Agent and the Banks shall have the right to declare immediately due and payable,
and the Guarantor will forthwith pay to the Agent, the full amount of all of the
Indebtedness whether due and payable or unmatured. If the Guarantor voluntarily
commences or there is commenced
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involuntarily against the Guarantor a case under the United States Bankruptcy
Code, the full amount of all Indebtedness, whether due and payable or unmatured,
shall be immediately due and payable without demand or notice thereof.
6. Subrogation, etc. The Guarantor hereby waives all rights that the
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Guarantor may now have or hereafter acquire, whether by subrogation,
contribution, reimbursement, recourse, exoneration, contract or otherwise, to
recover from the Borrower or from any property of the Borrower any sums paid
under this Guaranty. The Guarantor will not exercise or enforce any right of
contribution to recover any such sums from any person who is a co-obligor with
the Borrower or a guarantor or surety of the Indebtedness or from any property
of any such person until all of the Indebtedness shall have been fully paid and
discharged.
7. Enforcement Expenses. The Guarantor will pay or reimburse the
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Agent and the Banks for all costs, expenses and attorneys' fees paid or incurred
by the Agent and the Banks in endeavoring to collect and enforce the
Indebtedness and in enforcing this Guaranty.
8. Banks' Rights. The Agent and the Banks shall not be obligated by
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reason of their acceptance of this Guaranty to engage in any transactions with
or for the Borrower. Whether or not any existing relationship between the
Guarantor and the Borrower has been changed or ended and whether or not this
Guaranty has been revoked, the Agent and the Banks may enter into transactions
resulting in the creation or continuance of the Indebtedness and may otherwise
agree, consent to or suffer the creation or continuance of any of the
Indebtedness, without any consent or approval by the Guarantor and without any
prior or subsequent notice to the Guarantor. The Guarantor's liability shall not
be affected or impaired by any of the following acts or things (which the Agent
and the Banks are expressly authorized to do, omit or suffer from time to time,
both before and after revocation of this Guaranty, without consent or approval
by or notice to the Guarantor): (i) any acceptance of collateral security,
guarantors, accommodation parties or sureties for any or all of the
Indebtedness; (ii) one or more extensions or renewals of the Indebtedness
(whether or not for longer than the original period) or any modification of the
interest rates, maturities, if any, or other contractual terms applicable to any
of the Indebtedness or any amendment or modification of any of the terms or
provisions of any loan agreement or other agreement under which the Indebtedness
or any part thereof arose; (iii) any waiver or indulgence granted to the
Borrower, any delay or lack of diligence in the enforcement of the Indebtedness
or any failure to institute proceedings, file a claim, give any required notices
or otherwise protect any of the Indebtedness; (iv) any full or partial release
of, compromise or settlement with, or agreement not to xxx, the Borrower or any
guarantor or other person liable in respect of any of the Indebtedness; (v) any
release, surrender, cancellation or other discharge of any evidence of the
Indebtedness or the acceptance of any instrument in renewal or substitution
therefor; (vi) any failure to obtain collateral security (including rights of
setoff) for the Indebtedness, or to see to the proper or sufficient creation and
perfection thereof, or to establish the priority thereof, or to preserve,
protect, insure, care for, exercise or enforce any collateral security; or any
modification, alteration, substitution, exchange, surrender, cancellation,
termination, release or other change, impairment, limitation, loss or discharge
of any collateral security; (vii) any collection, sale, lease or disposition of,
or any other foreclosure or enforcement of or realization on, any collateral
security; (viii) any assignment, pledge or other transfer of any
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of the Indebtedness or any evidence thereof; (ix) any manner, order or method of
application of any payments or credits upon the Indebtedness; and (x) any
election by the Agent and the Banks under Section 1111(b) of the United States
Bankruptcy Code. The Guarantor waives any and all defenses and discharges
available to a surety, guarantor or accommodation co-obligor.
9. Waivers by Guarantor. The Guarantor waives any and all defenses,
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claims, setoffs and discharges of the Borrower, or any other obligor, pertaining
to the Indebtedness, except the defense of discharge by payment in full. Without
limiting the generality of the foregoing, the Guarantor will not assert, plead
or enforce against the Agent or the Banks any defense of waiver, release,
discharge or disallowance in bankruptcy, statute of limitations, res judicata,
statute of frauds, anti-deficiency statute, fraud, incapacity, minority, usury,
illegality or unenforceability which may be available to the Borrower or any
other person liable in respect of any of the Indebtedness, or any setoff
available against the Agent or the Banks to the Borrower or any other such
person, whether or not on account of a related transaction. The Guarantor
expressly agrees that the Guarantor shall be and remain liable for any
deficiency remaining after foreclosure of any mortgage or security interest
securing the Indebtedness, whether or not the liability of the Borrower or any
other obligor for such deficiency is discharged pursuant to statute or judicial
decision. The liability of the Guarantor shall not be affected or impaired by
any voluntary or involuntary liquidation, dissolution, sale or other disposition
of all or substantially all of the assets, marshalling of assets and
liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of
creditors, reorganization, arrangement, composition or readjustment of, or other
similar event or proceeding affecting, the Borrower or any of its assets. The
Guarantor will not assert, plead or enforce against the Agent or the Banks any
claim, defense or setoff available to the Guarantor against the Borrower. The
Guarantor waives presentment, demand for payment, notice of dishonor or
nonpayment and protest of any instrument evidencing the Indebtedness. The Agent
and the Banks shall not be required first to resort for payment of the
Indebtedness to the Borrower or other persons, or their properties, or first to
enforce, realize upon or exhaust any collateral security for the Indebtedness,
before enforcing this Guaranty.
10. If Payments Set Aside, etc. If any payment applied by the Agent
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or the Banks to the Indebtedness is thereafter set aside, recovered, rescinded
or required to be returned for any reason (including, without limitation, the
bankruptcy, insolvency or reorganization of the Borrower or any other obligor),
the Indebtedness to which such payment was applied shall for the purpose of this
Guaranty be deemed to have continued in existence, notwithstanding such
application, and this Guaranty shall be enforceable as to such Indebtedness as
fully as if such application had never been made.
11. No Duties Owed by Banks. The Guarantor acknowledges and agrees
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that the Agent and the Banks (i) have not made any representations or warranties
with respect to, (ii) do not assume any responsibility to the Guarantor for, and
(iii) have no duty to provide information to the Guarantor regarding, the
enforceability of any of the Indebtedness or the financial condition of the
Borrower or any guarantor. The Guarantor has independently determined the
creditworthiness of the Borrower and the enforceability of the Indebtedness and
until the Indebtedness is paid in full will independently and without reliance
on the Agent or the Banks continue to make such determinations.
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12. Additional Obligation of Guarantor. The Guarantor's liability
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under this Guaranty is in addition to and shall be cumulative with all other
liabilities of the Guarantor to the Agent or any Bank as guarantor, surety,
endorser, accommodation co-obligor or otherwise of any of the Indebtedness or
obligation of the Borrower, without any limitation as to amount, unless the
instrument or agreement evidencing or creating such other liability specifically
provides to the contrary.
13. Miscellaneous. This Guaranty shall be effective upon delivery to
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the Agent, without further act, condition or acceptance by the Agent or the
Banks, shall be binding upon the Guarantor and the successors and assigns of the
Guarantor and shall inure to the benefit of the Agent and the Banks and its
participants, successors and assigns. Any invalidity or unenforceability of any
provision or application of this Guaranty shall not affect other lawful
provisions and application thereof, and to this end the provisions of this
Guaranty are declared to be severable. This Guaranty may not be waived,
modified, amended, terminated, released or otherwise changed except by a writing
signed by the Guarantor and the Agent. This Guaranty shall be governed by and
construed in accordance with the substantive laws (other than conflict laws) of
the State of Minnesota. The Guarantor hereby (i) consents to the personal
jurisdiction of the state and federal courts located in the State of Minnesota
in connection with any controversy related to this Guaranty; (ii) waives any
argument that venue in any such forum is not convenient, (iii) agrees that any
litigation initiated by the Agent or the Banks or the Guarantor in connection
with this Guaranty shall be venued in either the District Court of Hennepin
County, Minnesota, or the United States District Court, District of Minnesota,
Fourth Division; and (iv) agrees that a final judgment in any such suit, action
or proceeding shall be conclusive and may be enforced in other jurisdictions by
suit on the judgment or in any other manner provided by law.
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14. Waiver of Jury Trial. THE UNDERSIGNED HEREBY IRREVOCABLY WAIVES
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ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING
OUT OF, BASED ON OR PERTAINING TO THIS GUARANTY.
IN WITNESS WHEREOF, this Guaranty has been duly executed by the
Guarantor the date first written above.
XXXXXXX ELECTRIC HOLDINGS, INC.
By /s/ Xxxxx X. Xxxxx
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Xxxxx X. Xxxxx
Its Assistant Secretary
Address: c/o Nationwide Electric, Inc.
0000 Xxxxxxxxxxxx Xxxxxx
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
Attn: Xxxxx X. Xxxxx
STATE OF MINNESOTA )
)
COUNTY OF HENNEPIN )
The foregoing instrument was acknowledged before me this 22nd day of
December, 1998 by Xxxxx X. Xxxxx, the Assistant Secretary of XXXXXXX ELECTRIC
HOLDINGS, INC., a Delaware corporation, on behalf of the corporation.
/s/ Xxxxxx Xxxx Xxxxx
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Notary Public
[SEAL]
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