|
Exhibit 10.4
CONTINUING GUARANTY
TO:WELLS FARGO BANK, NATIONAL ASSOCIATION
1. GUARANTY; DEFINITIONS. In
consideration of any credit or other financial accommodation
heretofore, now or hereafter extended or made to Lindsay Italia,
S.r.l. (Borrowers"), or any of them, by WELLS FARGO BANK, NATIONAL
ASSOCIATION ("Bank"), and for other valuable consideration, the
undersigned Lindsay Corporation ("Guarantor"), unconditionally
guarantees and promises to pay to Bank, or order, on demand in
lawful money of the United States of America and in immediately
available funds, any and all Indebtedness of any of the Borrowers
to Bank. The term "Indebtedness" is used herein in its most
comprehensive sense and includes any and all advances, debts,
obligations and liabilities of Borrowers, or any of them,
heretofore, now or hereafter made, incurred or created, whether
voluntary or involuntary and however arising, whether due or not
due, absolute or contingent, liquidated or unliquidated, determined
or undetermined, including under any swap, derivative, foreign
exchange, hedge, deposit, treasury management or other similar
transaction or arrangement, and whether any of the Borrowers may be
liable individually or jointly with others, or whether recovery
upon such Indebtedness may be or hereafter becomes unenforceable.
This Guaranty is a guaranty of payment and not collection.
2. MAXIMUM LIABILITY;
SUCCESSIVE TRANSACTIONS; REVOCATION; OBLIGATION UNDER OTHER
GUARANTIES. The liability of Guarantor shall not exceed at any time
the sum of (a) $13,195,000.00 (b) all accrued and unpaid
interest on any Indebtedness, and (c) all costs and expenses
pertaining to the enforcement of this Guaranty and/or the
collection of the Indebtedness. Notwithstanding the foregoing, Bank
may permit the Indebtedness of Borrowers to exceed
Guarantor’s liability. This is a continuing guaranty and all
rights, powers and remedies hereunder shall apply to all past,
present and future Indebtedness of each of the Borrowers to Bank,
including that arising under successive transactions which shall
either continue the Indebtedness, increase or decrease it, or from
time to time create new Indebtedness after all or any prior
Indebtedness has been satisfied, and notwithstanding the death,
incapacity, dissolution, liquidation or bankruptcy of any of the
Borrowers or Guarantor or any other event or proceeding affecting
any of the Borrowers or Guarantor. This Guaranty shall not apply to
any new Indebtedness created after actual receipt by Bank of
written notice of its revocation as to such new Indebtedness;
provided however, that loans or advances made by Bank to any of the
Borrowers after revocation under commitments existing prior to
receipt by Bank of such revocation, and extensions, renewals or
modifications, of any kind, of Indebtedness incurred by any of the
Borrowers or committed by Bank prior to receipt by Bank of such
revocation, shall not be considered new Indebtedness. Any such
notice must be sent to Bank by registered U.S. mail, postage
prepaid, addressed to its office at Nebraska Main RCBO, 1919
Douglas Street, Omaha, NE 68102, or at such other address as Bank
shall from time to time designate. The obligations of Guarantor
hereunder shall be in addition to any obligations of Guarantor
under any other guaranties of any liabilities or obligations of any
of the Borrowers or any other persons heretofore or hereafter given
to Bank unless said other guaranties are expressly modified or
revoked in writing; and this Guaranty shall not, unless expressly
herein provided, affect or invalidate any such other
guaranties.
3. OBLIGATIONS INDEPENDENT;
SEPARATE ACTIONS; WAIVER OF STATUTE OF LIMITATIONS; REINSTATEMENT
OF LIABILITY. The obligations hereunder are independent of the
obligations of Borrowers, and a separate action or actions may be
brought and prosecuted against Guarantor whether action is brought
against any of the Borrowers or any other person, or whether any of
the Borrowers or any other person is joined in any such action or
actions. Guarantor acknowledges that this Guaranty is absolute and
unconditional, there are no conditions precedent to the
effectiveness of this Guaranty, and this Guaranty is in full force
and effect and is binding on Guarantor as of the date written
below, regardless of whether Bank obtains collateral or any
guaranties from others or takes any other action contemplated by
Guarantor. Guarantor waives the benefit of any statute of
limitations affecting Guarantor’s liability hereunder or the
enforcement thereof, and Guarantor agrees that any payment of any
Indebtedness or other act which shall toll any statute of
limitations applicable thereto shall similarly operate to toll such
statute of limitations applicable to Guarantor’s liability
hereunder. The liability of Guarantor hereunder shall be reinstated
and revived and the rights of Bank shall continue if and to the
extent for any reason any amount at any time paid on account of any
Indebtedness guaranteed hereby is rescinded or must otherwise be
restored by Bank, whether as a result of any proceedings in
bankruptcy or reorganization or otherwise, all as though such
amount had not been paid. The determination as to whether any
amount so paid must be rescinded or restored shall be made by Bank
in its sole discretion; provided however, that if Bank chooses to
contest any such matter at the request of Guarantor, Guarantor
agrees to indemnify and hold Bank harmless from and against all
costs and expenses, including reasonable attorneys’ fees,
expended or incurred by Bank in connection therewith, including
without limitation, in any litigation with respect thereto.
4. AUTHORIZATIONS TO BANK.
Guarantor authorizes Bank either before or after revocation hereof,
without notice to or demand on Guarantor, and without affecting
Guarantor’s liability hereunder, from time to time to:
(a) alter, compromise, renew, extend, accelerate or otherwise
change the time for payment of, or otherwise change the terms of
the Indebtedness or any portion thereof, including increase or
decrease of the rate of interest thereon; (b) take and hold
security for the payment of this Guaranty or the Indebtedness or
any portion thereof, and exchange, enforce, waive, subordinate or
release any such security; (c) apply such security and direct
the order or manner of sale thereof, including without limitation,
a non-judicial sale permitted by the terms of the controlling
security agreement, mortgage or deed of trust, as Bank in its
discretion may determine; (d) release or substitute any one or
more of the endorsers or any other guarantors of the Indebtedness,
or any portion thereof, or any other party thereto; and
(e) apply payments received by Bank from any of the Borrowers
to any Indebtedness of any of the Borrowers to Bank, in such order
as Bank shall determine in its sole discretion, whether or not such
Indebtedness is covered by this Guaranty, and Guarantor hereby
waives any provision of law regarding application of payments which
specifies otherwise. Bank may without notice assign this Guaranty
in whole or in part. Upon Bank’s request, Guarantor agrees to
provide to Bank copies of Guarantor’s financial
statements.
5. REPRESENTATIONS AND
WARRANTIES. Guarantor represents and warrants to Bank that:
(a) this Guaranty is executed at Borrowers’ request;
(b) Guarantor shall not, without Bank’s prior written
consent, sell, lease, assign, encumber, hypothecate, transfer or
otherwise dispose of all or a substantial or material part of
Guarantor’s assets other than in the ordinary course of
Guarantor’s business; (c) Bank has made no
representation to Guarantor as to the creditworthiness of any of
the Borrowers; and (d) Guarantor has established adequate
means of obtaining from each of the Borrowers on a continuing basis
financial and other information pertaining to Borrowers’
financial condition. Guarantor agrees to keep adequately informed
from such means of any facts, events or circumstances which might
in any way affect Guarantor’s risks hereunder, and Guarantor
further agrees that Bank shall have no obligation to disclose to
Guarantor any information or material about any of the Borrowers
which is acquired by Bank in any manner.
6. GUARANTOR’S
WAIVERS.
(a) Guarantor waives any
right to require Bank to: (i) proceed against any of the
Borrowers or any other person; (ii) marshal assets or proceed
against or exhaust any security held from any of the Borrowers or
any other person; (iii) give notice of the terms, time and
place of any public or private sale or other disposition of
personal property security held from any of the Borrowers or any
other person; (iv) take any other action or pursue any other
remedy in Bank’s power; or (v) make any presentment or demand
for performance, or give any notice of nonperformance, protest,
notice of protest or notice of dishonor hereunder or in connection
with any obligations or evidences of indebtedness held by Bank as
security for or which constitute in whole or in part the
Indebtedness guaranteed hereunder, or in connection with the
creation of new or additional Indebtedness.
(b) Guarantor waives any
defense to its obligations hereunder based upon or arising by
reason of: (i) any disability or other defense of any of the
Borrowers or any other person; (ii) the cessation or
limitation from any cause whatsoever, other than payment in full,
of the Indebtedness of any of the Borrowers or any other person;
(iii) any lack of authority of any officer, director, partner,
agent or any other person acting or purporting to act on behalf of
any of the Borrowers which is a corporation, partnership or other
type of entity, or any defect in the formation of any such
Borrower; (iv) the application by any of the Borrowers of the
proceeds of any Indebtedness for purposes other than the purposes
represented by Borrowers to, or intended or understood by, Bank or
Guarantor; (v) any act or omission by Bank which directly or
indirectly results in or aids the discharge of any of the Borrowers
or any portion of the Indebtedness by operation of law or othe
|
