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Exhibit
10.3
CONTINUING
GUARANTY
FOR VALUE RECEIVED, the
sufficiency of which is hereby acknowledged, and in consideration
of credit and/or financial accommodation heretofore or hereafter
from time to time made or granted to ABD HOLDING COMPANY,
INC., a Delaware corporation (the “ Borrower
”) by BLUE RIDGE INVESTMENTS L.L.C. and any other
subsidiaries or affiliates of Bank of America Corporation and its
successors and assigns (collectively the “ Lender
”), the undersigned Guarantor (whether one or more the
“ Guarantor ”, and if more than one jointly and
severally) hereby furnishes its guaranty of the Guaranteed
Obligations (as hereinafter defined) as follows:
1. Guaranty.
The Guarantor hereby absolutely and unconditionally guarantees, as
a guaranty of payment and performance and not merely as a guaranty
of collection, prompt payment when due, whether at stated maturity,
by required prepayment, upon acceleration, demand or otherwise, and
at all times thereafter, of any and all existing and future
indebtedness and liabilities of every kind, nature and character,
direct or indirect, absolute or contingent, liquidated or
unliquidated, voluntary or involuntary and whether for principal,
interest, premiums, fees indemnities, damages, costs, expenses or
otherwise, of the Borrower to the Lender , in connection
with or arising under that certain Promissory Note, dated
June 20, 2008, in the original principal amount of Twenty
Million Dollars ($20,000,000) executed by Borrower in favor of
Lender, and whenever created, arising, evidenced or acquired
(including all renewals, extensions, amendments, refinancings and
other modifications thereof and all costs, attorneys’ fees
and expenses incurred by the Lender in connection with the
collection or enforcement thereof), and whether recovery upon such
indebtedness and liabilities may be or hereafter become
unenforceable or shall be an allowed or disallowed claim under any
proceeding or case commenced by or against the Guarantor or the
Borrower under the Bankruptcy Code (Title 11, United States Code),
any successor statute or any other liquidation, conservatorship,
bankruptcy, assignment for the benefit of creditors, moratorium,
rearrangement, receivership, insolvency, reorganization, or similar
debtor relief laws of the United States or other applicable
jurisdictions from time to time in effect and affecting the rights
of creditors generally (collectively, “ Debtor Relief
Laws ”), and including interest that accrues after the
commencement by or against the Borrower of any proceeding under any
Debtor Relief Laws (collectively, the “ Guaranteed
Obligations ”). The Lender’s books and records
showing the amount of the Guaranteed Obligations shall be
admissible in evidence in any action or proceeding, and shall be
binding upon the Guarantor and conclusive for the purpose of
establishing the amount of the Guaranteed Obligations. This
Guaranty shall not be affected by the genuineness, validity,
regularity or enforceability of the Guaranteed Obligations or any
instrument or agreement evidencing any Guaranteed Obligations, or
by the existence, validity, enforceability, perfection,
non-perfection or extent of any collateral therefor, or by any fact
or circumstance relating to the Guaranteed Obligations which might
otherwise constitute a defense to the obligations of the Guarantor
under this Guaranty, and the Guarantor hereby irrevocably waives
any defenses it may now have or hereafter acquire in any way
relating to any or all of the foregoing.
Anything contained herein to the
contrary notwithstanding, the obligations of the Guarantor
hereunder at any time shall be limited to an aggregate amount equal
to the largest amount that would not render its obligations
hereunder subject to avoidance as a fraudulent transfer or
conveyance under Section 548 of the Bankruptcy Code (Title 11,
United States Code) or any comparable provisions of any similar
federal or state law.
2. No Setoff or
Deductions; Taxes; Payments. The Guarantor represents and
warrants that it is organized and resident in the United States of
America. The Guarantor shall make all payments hereunder without
setoff or counterclaim and free and clear of and without deduction
for any taxes, levies, imposts, duties, charges, fees, deductions,
withholdings, compulsory loans, restrictions or conditions
of
1
any nature now or hereafter imposed or
levied by any jurisdiction or any political subdivision thereof or
taxing or other authority therein unless the Guarantor is compelled
by law to make such deduction or withholding. If any such
obligation (other than one arising with respect to taxes based on
or measured by the income or profits of the Lender) is imposed upon
the Guarantor with respect to any amount payable by it hereunder,
the Guarantor will pay to the Lender, on the date on which such
amount is due and payable hereunder, such additional amount in U.S.
dollars as shall be necessary to enable the Lender to receive the
same net amount which the Lender would have received on such due
date had no such obligation been imposed upon the Guarantor. The
Guarantor will deliver promptly to the Lender certificates or other
valid vouchers for all taxes or other charges deducted from or paid
with respect to payments made by the Guarantor hereunder. The
obligations of the Guarantor under this paragraph shall survive the
payment in full of the Guaranteed Obligations and termination of
this Guaranty.
3. Rights of
Lender. The Guarantor consents and agrees that the Lender may,
at any time and from time to time, without notice or demand, and
without affecting the enforceability or continuing effectiveness
hereof: (a) amend, extend, renew, compromise, discharge,
accelerate or otherwise change the time for payment or the terms of
the Guaranteed Obligations or any part thereof; (b) take,
hold, exchange, enforce, waive, release, fail to perfect, sell, or
otherwise dispose of any security for the payment of this Guaranty
or any Guaranteed Obligations; (c) apply such security and
direct the order or manner of sale thereof as the Lender in its
sole discretion may determine; and (d) release or substitute
one or more of any endorsers or other guarantors of any of the
Guaranteed Obligations. Without limiting the generality of the
foregoing, the Guarantor consents to the taking of, or failure to
take, any action which might in any manner or to any extent vary
the risks of the Guarantor under this Guaranty or which, but for
this provision, might operate as a discharge of the
Guarantor.
4. Certain
Waivers. The Guarantor waives (a) any defense arising by
reason of any disability or other defense of the Borrower or any
other guarantor, or the cessation from any cause whatsoever
(including any act or omission of the Lender) of the liability of
the Borrower; (b) any defense based on any claim that the
Guarantor’s obligations exceed or are more burdensome than
those of the Borrower; (c) the benefit of any statute of
limitations affecting the Guarantor’s liability hereunder;
(d) any right to require the Lender to proceed against the
Borrower, proceed against or exhaust any security for the
Indebtedness, or pursue any other remedy in the Lender’s
power whatsoever; (e) any benefit of and any right to
participate in any security now or hereafter held by the Lender;
and (f) to the fullest extent permitted by law, any and all
other defenses or benefits that may be derived from or afforded by
applicable law limiting the liability of or exonerating guarantors
or sureties. The Guarantor expressly waives all setoffs and
counterclaims and all presentments, demands for payment or
performance, notices of nonpayment or nonperformance, protests,
notices of protest, notices of dishonor and all other notices or
demands of any kind or nature whatsoever with respe
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