|
Exhibit 10.4
CONTINUING GUARANTY
JANUARY 15, 2009
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 Brad Foote Gear Works, Inc. (the " Borrower
") by BANK OF AMERICA, N.A. and any other subsidiaries or
affiliates of Bank of America Corporation and its successors and
assigns (collectively the " Lender "), the undersigned
Guarantor (collectively, the " Guarantor ", 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, whether associated with any credit
or other financial accommodation made to or for the benefit of the
Borrower by the Lender or otherwise and whenever created, arising,
evidenced or acquired, including, without limitation, all
Indebtedness arising under that certain Loan and Security Agreement
dated as of January 17, 1997 between the Borrower and the
Lender (as amended from time to time, the " Loan Agreement
"; capitalized terms used herein, but not otherwise defined herein,
shall have the meanings given such terms in (or by reference in)
the Loan Agreement) and all indebtedness and liabilities arising
under the Subsidiary Loan Documents and the other Loan Documents
(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.
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 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
2
notices or demands of any kind or nature whatsoever with respect
to the Guaranteed Obligations, and all notices of acceptance of
this Guaranty or of the existence, creation or incurrence of new or
additional Guaranteed Obligations.
5.
Obligations Independent . The obligations of the Guarantor
hereunder are those of primary obligor, and not merely as surety,
and are independent of the Guaranteed Obligations and the
obligations of any other guarantor, and a separate action may be
brought against the Guarantor to enforce this Guaranty whether or
not the Borrower or any other person or entity is joined as a
party.
6.
Subrogation. The Guarantor shall not exercise any right of
subrogation, contribution, indemnity, reimbursement or similar
rights with respect to any payments it makes under this Guaranty
until all of the Guaranteed Obligations and any amounts payable
under this Guaranty have been indefeasibly paid and performed in
full and any commitments of the Lender or facilities provided by
the Lender with respect to the Guaranteed Obligations are
terminated. If any amounts are paid to the Guarantor in
violation of the foregoing l
|
