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Exhibit 2.6
SUBSIDIARY GUARANTY
THIS SUBSIDIARY GUARANTY (" Subsidiary Guaranty ") is
made as of May 11, 2007, by and between the entity signatory hereto
(the " Subsidiary Guarantor ") and TD Banknorth, N.A., a
national banking association with a principal place of business at
61 Main Street, Andover, MA 01810 (" Banknorth " or the "
Lender ").
Capitalized terms used but not defined herein shall have the
meanings ascribed in the Credit Agreement.
For good and valuable consideration, the receipt and sufficiency
of which are acknowledged, and to induce the Lender to enter into
the Credit Agreement and to continue to extend credit thereunder,
the undersigned unconditionally guaranties, in accordance with the
terms hereof and without any prior written notice, jointly and
severally with all other Subsidiary Guarantors, that (a) AMI, OMPI
and Rainier (the " Borrowers ") will duly and punctually pay
or perform, at the place specified therefor, or if no place is
specified, at the Lender’s main office or at the branch of
the Lender where this Guaranty is given, all of the Obligations (as
defined herein) of the Borrowers to the Lender, now or hereafter
owing or incurred (including without limitation costs and expenses
incurred by the Lender in attempting to collect or enforce any of
the foregoing) which are chargeable to the Borrowers either by law
or under the terms of the Lender’s arrangements with the
Borrowers accrued in each case to the date of payment hereunder;
and (b) if there is an agreement or instrument evidencing or
executed and delivered in connection with any Obligation, the
Borrowers will perform in all other respects strictly in accordance
with the terms thereof.
This Subsidiary Guaranty is an absolute, unconditional and
continuing guaranty of the full and punctual payment and
performance by the Borrowers of the Obligations and not of their
collectibility only and is in no way conditioned upon any
requirement that the Lender first attempt to collect any of the
Obligations from the Borrower or any other party primarily or
secondarily liable with respect thereto or resort to any security
or other means of obtaining payment of any of the Obligations which
the Lender now has or may acquire after the date hereof, or upon
any other contingency whatsoever.
The Subsidiary Guarantor further agrees and not as a guarantor
only, to pay to the Lender forthwith upon demand, in funds
immediately available to the Lender, all reasonable costs and
expenses (including court costs and legal expenses) incurred or
expended by the Lender in connection with this Subsidiary Guaranty
and the enforcement hereof, together with interest on amounts
recoverable under this Subsidiary Guaranty from the time such
amounts become due until payment at the usual rate charged by the
Lender in similar circumstances.
The liability of the Subsidiary Guarantor hereunder shall be
unlimited in amount.
"Obligation" and "Obligations" include, without limitation, any
and all liabilities, debts, and obligations of the Borrower to the
Lender, each of every kind, nature, and
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description, now existing or hereafter arising
under the Credit Agreement of even date herewith, a Revolving
Credit Note issued by the Borrower to the Lender in the principal
amount of Four Million and 00/100 Dollars ($4,000,000.00), and a
Acquisition Line Note of even date herewith issued by the Borrower
to the Lender in the principal amount of One Million and 00/100
Dollars ($1,000,000.00). "Obligations" also includes, without
limitation, each obligation to repay all loans, advances,
indebtedness, notes, obligations, overdrafts, and amounts now or
hereafter at any time owing by the Borrower to the Lender
(including all future advances or the like whether or not given
pursuant to a commitment by the Lender), whether or not any of such
are liquidated, unliquidated, primary, secondary, secured,
unsecured, direct, indirect, absolute, contingent, or of any other
type, nature, or description, or by reason of any cause of action
which the Lender may hold against the Borrower , solely to
the extent any of the foregoing obligations arise under or in
connection with the Revolving Credit Note, the Acquisition Line
Note and the Credit Agreement. "Obligations" also includes,
without limitation, all notes and other obligations of the Borrower
now or hereafter assigned to or held by the Lender, each of every
kind, nature and description; all interest and other amounts which
may be charged to the Borrower and/or which may be due from the
Borrower to the Lender from time to time; all fees and charges in
connection with any account maintained by the Borrower with the
Lender or any service rendered by the Lender; all costs and
expenses incurred or paid by the Lender in respect of any agreement
between the Borrower and the Lender or instrument furnished by the
Borrower to the Lender (including, without limitation, Costs of
Collection (as defined below), attorneys’ reasonable fees,
and all court and litigation costs and expenses); and any and all
covenants of the Borrower to or with the Lender and any and all
obligations of the Borrower to act or to refrain from acting in
accordance with the terms, provisions, and covenants of any
agreement between the Borrower and the Lender or instrument
furnished by the Borrower to the Lender, solely to the extent any
of the foregoing obligations arise under or in connection with the
Revolving Credit Note, the Acquisition Line Note and the Credit
Agreement. As used herein the term "indirect" includes,
without limitation, all obligations and liabilities which the
Lender may incur or become liable for, on account of, or as a
result of any transactions between the Lender and the Borrower
including, without limitation, any which may arise out of any
letter of credit or acceptance, or similar instrument issued or
obligation incurred by the Lender for the account of the Borrower;
any which may arise out of any action brought or threatened against
the Lender by the Borrower, any guarantor or endorser of the
Obligations of the Borrower, or by any other person in connection
with the Obligations, solely to the extent any of the foregoing
obligations arise under or in connection with the Revolving Credit
Note, the Acquisition Line Note and the Credit Agreement; and any
obligation of the Borrower which may arise as endorser or guarantor
of any third party, or as obligor to any third party, which
obligation has been endorsed, participated, or assigned to the
Lender. The term "indirect" also refers to any direct or
contingent liability of the Borrower to make payment toward any
obligation held by the Lender (including, without limitation, on
account of any industrial revenue bond) to the extent so held by
the Lender.
Without limiting the foregoing, the undersigned agrees to
reimburse the Lender, on demand, for any expenditures that the
Lender may make in the exercise of its rights
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and/or remedies under the Credit Agreement, this
Subsidiary Guaranty or any of the other Loan Documents. The
aforesaid indemnification agreement shall include, without
limitation, (A) payment in full of the Obligations in the event
that the Obligations are not satisfied in accordance with the terms
hereof and (B) reasonable attorneys’ fees and expenses and
court costs reasonably incurred by the Lender in connection with
the enforcement of said indemnification.
"Costs of Collection" includes, without limitation, all
attorneys’ reasonable fees, out-of-pocket expenses incurred
by the Lender’s attorneys, and all costs and expenses
incurred by the Lender, including, without limitation, costs and
expenses associated with travel on behalf of the Lender, which
costs and expenses are directly or indirectly related to or in
respect of the Lender’s administration, negotiation,
documentation, and amendment of the Obligations, this Subsidiary
Guaranty, and all other instruments and agreements executed in
connection with or relating to the Obligations, and in the
Lender’s efforts to preserve, protect, collect, or enforce
the Obligations and/or the Lender’s Rights and Remedies or
any of the Lender’s rights and remedies against or in respect
of the Borrower, any other guarantor or other person liable in
respect of the Obligations or any collateral granted to the Lender
by the Borrower, such guarantor, or other person (whether or not
suit is instituted in connection with such efforts). The
Costs of Collection shall be added to the Obligations, as if such
had been lent, advanced, and credited by the Lender, to or for the
benefit of, the Borrower.
For said good and valuable consideration, with the exception of
any claim in which final judgment no longer subject to appeal has
been rendered against the Lender by a court of competent
jurisdiction in which the Lender has been found to have acted in a
grossly negligent manner and/or in bad faith, the undersigned also
shall indemnify, defend, and hold the Lender, or any agent,
employee, officer, or representative of the Lender, harmless of and
from any claim brought or threatened against the Lender or any such
person so indemnified by: the Borrower; the undersigned; any
other guarantor or endorser of the Obligations or any other person
(as well as from attorneys’ reasonable fees and expenses in
connection therewith) on account of the Lender’s relationship
with the Borrower, the undersigned, or any other guarantor or
endorser of the Obligations (each of which may be defended,
compromised, settled, or pursued by the Lender with counsel of the
Lender’s selection, but at the expense of the
undersigned).
The undersigned will pay on demand interest on all amounts due
to the Lender under this Subsidiary Guaranty, or arising under any
documents, instruments, or agreements relating to any collateral
securing this Subsidiary Guaranty, from the time the Lender first
demands payment of this Subsidiary Guaranty at a rate equal to the
highest rate chargeable to the Borrower after the earlier of (i)
demand or (ii) the occurrence of any Event of Default (as defined)
under any instrument, document or agreement executed by the
Borrower.
Any and all deposits or other sums at any time credited by or
due to the undersigned from the Lender or any of its banking or
lending affiliates or any bank acting
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as a participant under any loan arrangement
between the Lender and the Borrower, and any cash, securities,
instruments or other property of the undersigned in the possession
of the Lender, or any of its banking or lending affiliates, and any
bank acting as a participant under any loan arrangement between the
Lender and the Borrower, whether for safekeeping or otherwise, or
in transit to or from the Lender or any of its banking or lending
affiliates or any such participants or in the possession of any
third party acting on the Lender’s behalf (regardless of the
reason the Lender or such affiliate or participant had received
same or whether the Lender or such affiliate or participant has
conditionally released the same) shall at all times constitute
security for all Obligations and for any and all obligations of the
undersigned to the Lender, now existing or hereafter arising, and
may be applied or set off against such Obligations and against the
obligations of the undersigned to the Lender including, without
limitation, those arising hereunder, at any time, whether or not
such Obligations are then due and whether or not other collateral
is then available to the Lender.
The obligations of the undersigned hereunder shall not be
affected by the fraudulent, illegal, or improper act by the
Borrower, the undersigned, or any person liable or obligated to the
Lender for or on the Obligations, by any release, discharge, or
invalidation, by operation of law or otherwise, of the Obligations,
or by the legal incapacity of the Borrower, the undersigned, or any
other person liable or obligated to the Lender for or on the
Obligations. Interest and Costs of Collection shall continue
to accrue and shall continue to be deemed Obligations guaranteed
hereby notwithstanding any stay to the enforcement thereof against
the Borrower or disallowance of any claim therefor against the
Borrower.
The within instrument incorporates all discussions and
negotiations between the undersigned and the Lender concerning the
guaranty and indemnification provided by the undersigned
hereby. No such discussions or negotiations shall limit,
modify, or otherwise affect the provisions hereby. No
provision hereof may be altered, amended, waived, canceled or
modified, except by a written instrument executed, sealed, and
acknowledged by a duly authorized officer of the Lender.
The undersigned waives presentment, demand, notice, and protest
with respect to the Obligations and this Subsidiary Guaranty,
further waives any delay on the part of the Lender, further waives
any right to require the Lender to pursue or to proceed against the
Borrower or any collateral which the Lender might have been granted
to secure the Obligations or to secure the obligations of the
undersigned hereunder, and further waives notice of acceptance of
this Subsidiary Guaranty.
The books and records of the Lender showing the account between
the Lender and the Borrower shall be admissible in any action or
proceeding and constitute prima facie evidence and proof of the
items contained therein.
The undersigned assents to any indulgence or waiver that the
Lender may grant or give the Borrower and/or any other person
liable or obligated to the Lender for or on the
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Obligations. The undersigned authorizes the
Lender to alter, amend, cancel, waive, or modify any term or
condition of the Obligations and of the obligations of any other
person liable or obligated to the Lender for or on the Obligations,
without notice to or consent from, the undersigned, including any
increase in the face value of the promissory notes referenced
above. No compromise, settlement, or release by the Lender of
the Obligations or of the obligations of any such other person
(whether or not jointly liable with the undersigned) and no release
of any collateral securing the Obligations or securing the
obligations of any such other person shall affect the obligations
of the undersigned hereunder. No action by the Lender that
has been assented to herein shall affect the obligations of the
undersigned to the Lender hereunder.
The undersigned: shall not exercise any rights against the
Borrower, by way of subrogation or otherwise until the Revolving
Credit Note and Acquisition Line Note are paid in full and all
other Obligations are fully paid and fully performed; shall not
prove any claim in competition with the Lender in respect of any
payment hereunder in bankruptcy or insolvency proceedings of any
nature; shall not claim any set-off or counterclaim against the
Borrower in respect of any liability of the undersigned to the
Borrower; and waives any benefit of, and any right to participate
in, any collateral which may secure the Obligations. The
payment of any amounts due with respect to any indebtedness of the
Borrower now or hereafter held by the undersigned is hereby
subordinated to the prior payment in full of the Obligations.
The undersigned will not demand, sue for, or otherwise attempt to
collect any such indebtedness, and any amounts which are collected,
enforced and received by the undersigned shall be held by the
undersigned as trustee for the Lender and shall be paid over to the
Lender on account of the Obligations without affecting in any
manner the liability of the undersigned under the other provisions
of this Subsidiary Guaranty.
The undersigned will from time to time at the request of the
Lender, provide the Lender with such information concerning the
financial condition of the undersigned as the Lender reasonably may
request and as required under the Credit Agreement executed
herewith.
The undersigned will pay on demand, without limitation, all
attorneys’ reasonable fees, out-of-pocket expenses incurred
by the Lender’s attorneys and all costs incurred by the
Lender, including, without limitation, costs and expenses
associated with travel on behalf of the Lender, which costs and
expenses are directly or indirectly related to or in respect of the
Lender’s administration, negotiation, documentation, and
amendment of this guaranty and in the Lender’s efforts to
collect and/or to enforce any of the obligations of the undersigned
hereunder and/or to enforce any of the Lender’s rights,
remedies, or powers against or in respect of the undersigned
(whether or not suit is instituted by or against the Lender).
This instrument shall inure to the benefit of the Lender, its
successors and assigns, shall be binding upon the heirs,
successors, representatives, and assigns of the
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undersigned, and shall apply to all Obligations
of the Borrower and any successor to the Borrower, including any
successor by operation of law.
The rights, remedies, powers, privileges, and discretions of the
Lender hereunder (hereinafter, the "Lender’s Rights and
Remedies") shall be cumulative and not exclusive of any rights or
remedies which it would otherwise have. No delay or omission
by the Lender in exercising or enforcing any of the Lender’s
Rights and Remedies shall operate as or constitute a waiver
thereof. No waiver by the Lender of any of the Lender’s
Rights and Remedies or of any default or remedies under any other
agreement with the undersigned, or of any default under any
agreement with the Borrower, and any other person liable or
obligated for or on the Obligations, shall operate as a waiver of
any other of the Lender’s Rights and Remedies or of any
default or remedy hereunder or thereunder. No exercise of any
of the Lender’s Rights and Remedies and no other agreement or
transaction of whatever nature entered into between the Lender and
the undersigned, between the Lender and the Borrower, and/or
between the Lender and any such other person at any time shall
preclude any other exercise of the Lender’s Rights and
Remedies. No waiver by the Lender of any of the
Lender’s Rights and Remedies on any one occasion shall be
deemed a waiver on any subsequent occasion, nor shall it be deemed
a continuing waiver. All of the Lender’s Rights and
Remedies, and all of the Lender’s rights, remedies, powers,
privileges, and discretions under any other agreement or
transaction with the undersigned, the Borrower, or any such other
person shall be cumulative and not alternative or exclusive, and
may be exercised by the Lender at such time or times and in such
order of preference as the Lender in its sole discretion may
determine.
This instrument and all documents that have been or may be
hereinafter furnished by the undersigned to the Lender may be
reproduced by the Lender by any photographic, xerographic,
facsimile, microfilm, or other process. Any such reproduction
shall be admissible in evidence as the original itself in any
judicial or administrative proceeding (whether or not the original
is in existence and whether or not such reproduction was made in
the regular course of business).
The instrument shall be governed, construed, and interpreted in
accordance with the laws of The Commonwealth of
Massachusetts. The undersigned submits to the jurisdiction of
the courts of The Commonwealth of Massachusetts for all matters in
connection herewith as well as for all purposes in connection with
any other relationship between the undersigned and the Lender.
The undersigned makes the following waiver knowingly,
voluntarily, and intentionally, and understands that the Lender, in
the establishment and maintenance of the Lender’s
relationship with the Borrower and the undersigned, is relying
thereon. THE UNDERSIGNED TO THE EXTENT ENTITLED THERETO,
HEREBY IRREVOCABLY WAIVES ANY PRESENT OR FUTURE RIGHT OF THE
UNDERSIGNED, THE BORROWER OR ANY GUARANTOR OR ENDORSERS OF THE
BORROWER, OR ANY OTHER SIMILAR PERSON, TO A TRIAL BY JURY OF
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ANY CASE OR CONTROVERSY IN WHICH THE LENDER IS OR
BECOMES A PARTY (WHETHER SUCH CASE OR CONTROVERSY IS INITIATED BY
OR AGAINST THE LENDER OR IN WHICH THE LENDER IS JOINED AS A PARTY
LITIGANT), WHICH CASE OR CONTROVERSY ARISES OUT OF, OR IS IN
RESPECT OF, ANY RELATIONSHIP BET
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