Exhibit 10.4
UNLIMITED CONTINUING GUARANTY
THIS
UNLIMITED CONTINUING GUARANTY (as it may be amended and/or restated
from time to time and at any time, this “ Guaranty
”) is made effective as of April 30, 2009 (the “
Effective Date ”), by [Name of Subsidiary], a
___________________ (“ Guarantor ”) in favor of
JPMORGAN CHASE BANK, N.A., a national banking association, as
administrative agent for the Lenders (in such capacity, the “
Administrative Agent ”), for the ratable benefit of
the Lenders.
Preliminary Statements
A.
Escalade, Incorporated, an Indiana corporation (“
Debtor ”), has executed a the Credit Agreement, dated
as of April 30, 2009, among Debtor, the Administrative Agent and
the Lenders party thereto (as it has been and hereafter may be
amended and/or restated from time to time and at anytime, the
“ Credit Agreement ”).
B.
Pursuant to the Credit Agreement and the other Loan Documents, the
Lenders made loans and other extensions of credit to
Debtor.
C.
Guarantor is entering into this Security Agreement in order to
induce the Lenders to enter into and extend credit to Debtor under
the Credit Agreement.
Guaranty
FOR
VALUABLE CONSIDERATION, the receipt and sufficiency of which are
hereby acknowledged, and in consideration of credit given, being
given and to be given, and of other financial accommodations
afforded or to be afforded by the Lenders to Debtor, Guarantor
hereby unconditionally guarantees to the Administrative Agent, for
the ratable benefit of the Lenders, the full and prompt payment
when due of the Guaranty Obligations.
Terms
that are defined in the Credit Agreement and not otherwise defined
in this Guaranty shall have the meanings ascribed to such terms in
the Credit Agreement when used in this Guaranty. When used in this
Guaranty, the following terms shall have the following
meanings:
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(a)
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“ Guaranty
Obligations ” means, collectively: (1) all Secured
Obligations now existing or hereafter arising; and (2) all costs,
expenses and reasonable attorneys’ fees paid or incurred by
the Administrative Agent and/or any Lender in the enforcement or
collection of any of the foregoing, including without limitation,
in the enforcement of this Guaranty.
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(b)
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“ Person ”
means an individual, a corporation, a limited or general
partnership, a limited liability company, a joint venture, a trust
or unincorporated organization, a joint stock company or other
similar organization, or any other legal entity, whether acting in
an individual, fiduciary or other capacity.
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(c)
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“ Secured
Obligations ” has the meaning ascribed to it in clause
(i) of the definition of “Secured Obligations” set
forth in the Credit Agreement.
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This
Guaranty is an absolute and unconditional guarantee of the payment
of the Guaranty Obligations, and shall continue and be in full
force and effect until all of the Guaranty Obligations shall be
fully paid and no further Guaranty Obligations may thereafter
arise. Certain other Persons may guarantee payment of all or part
of the Guaranty Obligations (such Persons being referred to herein
collectively as the “ Other Guarantors ”).
Guarantor acknowledges and agrees that Guarantor’s liability
with respect to the Guaranty Obligations shall not be diminished,
discharged, released or otherwise affected in any way in the event
any of the Other Guarantors fails to execute a guaranty of all or
any part of the Guaranty Obligations, fails to be bound thereby,
fails to perform thereunder, is released therefrom or in the event
that such guaranty shall be invalid or unenforceable in whole or in
part for any reason.
Guarantor
expressly waives presentment for payment, demand, notice of demand
and of dishonor and nonpayment of the Guaranty Obligations, protest
and notice of protest, diligence in collecting and in the bringing
of suit against any other Person, and neither the Administrative
Agent nor any Lender shall be under any obligation to notify
Guarantor of acceptance of this Guaranty by the Administrative
Agent or of any advances made or credit extended on the faith
hereof or the failure of Debtor to pay any of the Guaranty
Obligations as they mature, or to use diligence in preserving the
liability of any Person (including, without limitation, Debtor) on
the Guaranty Obligations or in bringing suit to enforce collection
of the Guaranty Obligations. To the full extent allowed by
applicable law, Guarantor waives all defenses given to sureties or
guarantors at law or in equity other than the actual payment of the
Guaranty Obligations and waives, to the full extent allowed by
applicable law, all defenses based upon questions as to the
validity, legality or enforceability of the Guaranty
Obligations.
The
Administrative Agent and/or any Lender, without authorization from
or notice to Guarantor and without impairing or affecting the
liability of Guarantor hereunder, may from time to time at its
discretion and with or without valuable consideration, alter,
compromise, accelerate, extend or change the time or manner for the
payment of any or all of the Guaranty Obligations owed to it,
extend additional loans, credit and financial accommodations and
otherwise create additional Guaranty Obligations, increase or
reduce the rate of interest thereon, take and surrender security,
exchange collateral by way of substitution, or in any way it deems
necessary take, accept, withdraw, subordinate, alter, amend, modify
or eliminate collateral, add or release or discharge endorsers,
guarantors or other obligors (including, without limitation,
Debtor), make changes of any sort whatever in the terms of payment
of the Guaranty Obligations owed to it, or any of the other terms
or conditions applicable to the Guaranty Obligations or of doing
business with Debtor, settle or compromise with Debtor or any other
Person or Persons liable on the Guaranty Obligations owed to it
(including, without limitation, Debtor) and direct the order or
manner of sale of any security or collateral, all on such terms at
it may see fit, and may apply all moneys received from Debtor or
others, or from any security or collateral held by it (whether held
under a security instrument or not) in such manner upon the
Guaranty Obligations owed to it (whether then due or not) as it may
determine to be in its best interest, without in any way being
required to marshal securities or assets or to apply all or any
part of such moneys upon any particular part of the Guaranty
Obligations. It is specifically agreed that neither the
Administrative Agent nor any Lender is required to retain, hold,
protect, exercise due care with respect thereto or perfect security
interests in or otherwise assure or safeguard any collateral or
security for the Guaranty Obligations. No exercise or nonexercise
by the Administrative Agent and/or any Lender of any right or
remedy of the Administrative Agent and/or any Lender shall in any
way affect any of Guarantor’s obligations hereunder or any
security furnished by Guarantor or give Guarantor any recourse
against the Administrative Agent and/or any Lender. To the fullest
extent permitted by applicable law, Guarantor hereby consents to
any action that is described in this paragraph and taken or not
taken by the Administrative Agent and/or any Lender prior to, on or
after the Effective Date.
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The
liability of Guarantor hereunder shall continue notwithstanding the
incapacity, death, disability, dissolution or termination of any
other Person or Persons (including, without limitation, Debtor).
Neither (i) the failure of the Administrative Agent and/or any
Lender to file or enforce a claim against the estate (either
in
