Exhibit 10.4
GUARANTY
1. Guaranty of Payment .
For value received and in consideration of any loan or other
financial accommodation heretofore or hereafter at any time made or
granted to Compex Technologies, Inc., a Minnesota corporation f/k/a
Rehabilicare, Inc. (hereinafter called the “ Borrower
”) by U.S. BANK NATIONAL ASSOCIATION , a national
banking association (hereinafter, together with its successors and
assigns, called the “ Lender ”), U.S. Bank
Place, 800 Nicollet Mall, Minneapolis, Minnesota 55402, the
undersigned hereby unconditionally guarantees the full and prompt
payment when due, whether by acceleration or otherwise, and at all
times thereafter, of all obligations of the Borrower to the Lender,
howsoever created, arising or evidenced, whether direct or
indirect, absolute or contingent, or now or hereafter existing, or
due or to become due, including, without limitation, all
obligations of the Borrower to the Lender pursuant to that certain
Amended and Restated Credit Agreement, dated as of June 2,
2004 (as amended to date, and as it may be further amended,
modified, supplemented, replaced or restated from time to time, the
“ Loan Agreement ;” capitalized terms not
otherwise defined herein being used herein as therein defined),
between the Borrower and the Lender (all such obligations being
hereinafter collectively called the “ Obligations
”), and the undersigned further agrees to pay all expenses,
including fees of attorneys (who may be employees of the Lender or
any affiliate) and legal expenses, paid or incurred by the Lender
in endeavoring to collect the Obligations, or any part thereof, and
in enforcing this Guaranty.
2. Acceleration of the Time
of Payment of Amount Payable Under the Guaranty . The
undersigned agrees that, upon the occurrence of any Event of
Default at a time when any of the Obligations may not then be due
and payable, the undersigned will pay to the Lender forthwith the
full amount which would be payable hereunder by the undersigned if
all Obligations were then due and payable.
3. Security Interest in
Deposits and Other Property . To secure all obligations of the
undersigned hereunder, the Lender shall have a lien upon and
security interest in (and may, without demand or notice of any
kind, at any time and from time to time when any amount shall be
due and payable by the undersigned hereunder, appropriate and apply
toward the payment of such amount, in such order of application as
the Lender may elect) any and all balances, credits, deposits
(general or special, time or demand, provisional or final),
accounts or moneys of or in the name of the undersigned now or
hereafter with the Lender or any affiliate and any and all property
of every kind or description of or in the name of the undersigned
now or hereafter with the Lender or any affiliate and any and all
property of every kind or description of or in the name of the
undersigned now or hereafter, for any reason or purpose whatsoever,
in the possession or control of, or in transit to, the Lender or
any affiliate or any agent or bailee for the Lender or any
affiliate.
4. Continuing Guaranty .
This Guaranty shall in all respects be a continuing, absolute and
unconditional Guaranty, and shall remain in full force and effect
(notwithstanding, without limitation, the dissolution of the
undersigned or that at any time or from time to time all
Obligations may have been paid in full), subject to discontinuance
only upon actual receipt by the Lender of written notice from the
undersigned, or any person duly authorized and acting on behalf of
the undersigned, of the discontinuance hereof, provided ,
however , that no such notice of discontinuance shall affect
or impair any of the agreements and obligations of the undersigned
hereunder with respect to any and all Obligations existing prior to
the time of actual receipt of such notice by the Lender, any and
all Obligations created or acquired thereafter pursuant to any
previous commitments made by the Lender, any and all extensions or
renewals of any of the foregoing, any and all interest on any of
the foregoing, and any and all expenses paid or incurred by the
Lender in endeavoring to collect any of the foregoing and in
enforcing this Guaranty against the undersigned; and all of the
agreements and obligations of the undersigned under this Guaranty
shall, notwithstanding any such notice of discontinuance, remain
fully in effect until all such Obligations (including any
extensions or renewals of any thereof) and all such interest and
expenses shall have been paid in full.
5. Recission or Return of
Payment on Obligations . The undersigned further agrees that,
if at any time all or any part of any payment theretofore applied
by the Lender to any of the Obligations is or must be rescinded or
returned by the Lender for any reason whatsoever (including,
without limitation, the insolvency, bankruptcy or reorganization of
the Borrower), such Obligations shall, for the purposes of this
Guaranty, to the extent that such payment is or must be rescinded
or returned, be deemed to have continued in existence,
notwithstanding such application by the Lender, and this Guaranty
shall continue to be effective or be reinstated, as the case may
be, as to such Obligations, all as though such application by the
Lender had not been made.
6. Lender Permitted to Take
Certain Actions . The Lender may, from time to time (but shall
not be obligated to), whether before or after any discontinuance of
this Guaranty, at its sole discretion and without notice to the
undersigned, take any or all of the following actions: (a) retain
or obtain a security interest in any property to secure any of the
Obligations or any obligation hereunder; (b) retain or obtain
the primary or secondary obligation of any obligor or obligors, in
addition to the undersigned, with respect to any of the
Obligations; (c) extend or renew for one or more periods
(whether or not longer than the original period), alter or exchange
any of the Obligations, or release or compromise any obligation of
the undersigned hereunder or any obligation of any nature of any
other obligor with respect to any of the Obligations;
(d) release its security interest in, or surrender, release or
permit any substitution or exchange for, all or any part of any
property securing any of the Obligations or any obligation
hereunder, or extend or renew for one or more periods (whether or
not longer than the original period) or release, compromise, alter
or exchange any obligations of any nature of any obligor with
respect to any such property; and (e) resort to the
undersigned for payment of any of the Obligations,
