CONTINUING GUARANTY
Exhibit 10.4
TO:XXXXX 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 XXXXX 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, 0000 Xxxxxxx
Xxxxxx, Xxxxx, XX 00000, 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
otherwise, or which in any way impairs or suspends any rights or remedies of Bank against any of
the Borrowers; (vi) any impairment of the value of any interest in any security for the
Indebtedness or any portion thereof, including without limitation, the failure to obtain or
maintain perfection or recordation of any interest in any such security, the release of any such
security without substitution, and/or the failure to preserve the value of, or to comply with
applicable law in disposing of, any such security; (vii) any modification of the Indebtedness, in
any form whatsoever, including any modification made after revocation hereof to any Indebtedness
incurred prior to such revocation, and including without limitation the renewal, extension,
acceleration or other change in time for payment of, or other change in the terms of, the
Indebtedness or any portion thereof, including increase or decrease of the rate of interest
thereon; or (viii) any requirement that Bank give any notice of acceptance of this Guaranty. Until
all Indebtedness shall have been paid in full, Guarantor shall have no right of subrogation, and
Guarantor waives any right to enforce any remedy which Bank now has or may hereafter have against
any of the Borrowers or any other person, and waives any benefit of, or any right to participate
in, any security now or hereafter held by Bank. Guarantor further waives all rights and defenses
Guarantor may have arising out of (A) any election of remedies by Bank, even though that election
of remedies, such as a non-judicial foreclosure with respect to any security for any portion of the
Indebtedness, destroys Guarantor’s rights of subrogation or Guarantor’s rights to proceed against
any of the Borrowers for reimbursement, or (B) any loss of rights Guarantor may suffer by reason of
any rights, powers or remedies of any of the Borrowers in connection with any anti-deficiency laws
or any other laws limiting, qualifying or discharging Borrowers’ Indebtedness, whether by operation
of law or otherwise, including any rights Guarantor may have to a fair market value hearing to
determine the size of a deficiency following any foreclosure sale or other disposition of any real
property security for any portion of the Indebtedness.
7. BANK’S RIGHTS WITH RESPECT TO GUARANTOR’S PROPERTY IN BANK’S POSSESSION. In addition to
all liens upon and rights of setoff against the monies, securities or other property of Guarantor
given to Bank by law, Bank shall have a lien upon and a right of setoff against all monies,
securities and other property of Guarantor now or hereafter in the possession of or on deposit with
Bank, whether held in a general or special account or deposit or for safekeeping or otherwise, and
every such lien and right of setoff may be exercised without demand upon or notice to Guarantor.
No lien
or right of setoff shall be deemed to have been waived by any act or conduct on the part of Bank,
or by any neglect to exercise such right of setoff or to enforce such lien, or by any delay in so
doing, and every right of setoff and lien shall continue in full force and effect until such right
of setoff or lien is specifically waived or released by Bank in writing.
8. SUBORDINATION. Any Indebtedness of any of the Borrowers now or hereafter held by Guarantor
is hereby subordinated to the Indebtedness of Borrowers to Bank. Such Indebtedness of Borrowers to
Guarantor is assigned to Bank as security for this Guaranty and the Indebtedness and, if Bank
requests, shall be collected and received by Guarantor as trustee for Bank and paid over to Bank on
account of the Indebtedness of Borrowers to Bank but without reducing or affecting in any manner
the liability of Guarantor under the other provisions of this Guaranty. Any notes or other
instruments now or hereafter evidencing such Indebtedness of any of the Borrowers to Guarantor
shall be marked with a legend that the same are subject to this Guaranty and, if Bank so requests,
shall be delivered to Bank. Bank is hereby authorized in the name of Guarantor from time to time
to file financing statements and continuation statements and execute such other documents and take
such other action as Bank deems necessary or appropriate to perfect, preserve and enforce its
rights hereunder.
9. REMEDIES; NO WAIVER. All rights, powers and remedies of Bank hereunder are cumulative. No
delay, failure or discontinuance of Bank in exercising any right, power or remedy hereunder shall
affect or operate as a waiver of such right, power or remedy; nor shall any single or partial
exercise of any such right, power or remedy preclude, waive or otherwise affect any other or
further exercise thereof or the exercise of any other right, power or remedy. Any waiver, permit,
consent or approval of any kind by Bank of any breach of this Guaranty, or any such waiver of any
provisions or conditions hereof, must be in writing and shall be effective only to the extent set
forth in writing.
10. COSTS, EXPENSES AND ATTORNEYS’ FEES. Guarantor shall pay to Bank immediately upon demand
the full amount of all payments, advances, charges, costs and expenses, including reasonable
attorneys’ fees (to include outside counsel fees and all allocated costs of Bank’s in-house
counsel), expended or incurred by Bank in connection with the enforcement of any of Bank’s rights,
powers or remedies and/or the collection of any amounts which become due to Bank under this
Guaranty, and the prosecution or defense of any action in any way related to this Guaranty, whether
incurred at the trial or appellate level, in an arbitration proceeding or otherwise, and including
any of the foregoing incurred in connection with any bankruptcy proceeding (including without
limitation, any adversary proceeding, contested matter or motion brought by Bank or any other
person) relating to Guarantor or any other person or entity. All of the foregoing shall be paid by
Guarantor with interest from the date of demand until paid in full at a rate per annum equal to the
greater of ten percent (10%) or Bank’s Prime Rate in effect from time to time.
11. SUCCESSORS; ASSIGNMENT. This Guaranty shall be binding upon and inure to the benefit of
the heirs, executors, administrators, legal representatives, successors and assigns of the parties;
provided however, that Guarantor may not assign or transfer any of its interests or rights
hereunder without Bank’s prior written consent. Guarantor acknowledges that Bank has the right to
sell, assign, transfer, negotiate or grant participations in all or any part of, or any interest
in, any Indebtedness of Borrowers to Bank and any obligations with respect thereto, including this
Guaranty. In connection therewith, Bank may disclose all documents and information which Bank now
has or hereafter acquires relating to Guarantor and/or this Guaranty, whether furnished by
Borrowers, Guarantor or otherwise. Guarantor further agrees that Bank may disclose such documents
and information to Borrowers.
12. AMENDMENT. This Guaranty may be amended or modified only in writing signed by Bank and
Guarantor.
13. APPLICATION OF SINGULAR AND PLURAL. In all cases where there is but a single Borrower,
then all words used herein in the plural shall be deemed to have been used in the singular where
the context and construction so require; and when there is more than one Borrower named herein, or
when this Guaranty is executed by more than one Guarantor, the word “Borrowers” and the word
“Guarantor” respectively shall mean all or any one or more of them as the context requires.
14. UNDERSTANDING WITH RESPECT TO WAIVERS; SEVERABILITY OF PROVISIONS. Guarantor warrants and
agrees that each of the waivers set forth herein is made with Guarantor’s full knowledge of its
significance and consequences, and that under the circumstances, the waivers are reasonable and not
contrary to public policy or law. If any waiver or other provision of this Guaranty shall be held
to be prohibited by or invalid under applicable public policy or law, such waiver or other
provision shall be ineffective only to the extent of such prohibition or invalidity, without
invalidating the remainder of such waiver or other provision or any remaining provisions of this
Guaranty.
15. GOVERNING LAW. This Guaranty shall be governed by and construed in accordance with the
laws of the State of Nebraska.
16. ARBITRATION.
(a) Arbitration. The parties hereto agree, upon demand by any party, to submit to
binding arbitration all claims, disputes and controversies between or among them (and their
respective employees, officers, directors, attorneys, and other agents), whether in tort, contract
or otherwise, in any way arising out of or relating to this Guaranty and its negotiation,
execution, collateralization, administration, repayment, modification, extension, substitution,
formation, inducement, enforcement, default or termination.
(b) Governing Rules. Any arbitration proceeding will (i) proceed in a location in
Nebraska selected by the American Arbitration Association (“AAA”); (ii) be governed by the Federal
Arbitration Act (Title 9 of the United States Code), notwithstanding any conflicting choice of law
provision in any of the documents between the parties; and (iii) be conducted by the AAA, or such
other administrator as the parties shall mutually agree upon, in accordance with the AAA’s
commercial dispute resolution procedures, unless the claim or counterclaim is at least
$1,000,000.00 exclusive of claimed interest, arbitration fees and costs in which case the
arbitration shall be conducted in accordance with the AAA’s optional procedures for large, complex
commercial disputes (the commercial dispute resolution procedures or the optional procedures for
large, complex commercial disputes to be referred to herein, as applicable, as the “Rules”). If
there is any inconsistency between the terms hereof and the Rules, the terms and procedures set
forth herein shall control. Any party who fails or refuses to submit to arbitration following a
demand by any other party shall bear all costs and expenses incurred by such other party in
compelling arbitration of any dispute. Nothing contained herein shall be deemed to be a waiver by
any party that is a bank of the protections afforded to it under 12 U.S.C. §91 or any similar
applicable state law.
(c) No Waiver of Provisional Remedies, Self-Help and Foreclosure. The arbitration
requirement does not limit the right of any party to (i) foreclose against real or personal
property collateral; (ii) exercise self-help remedies relating to collateral or proceeds of
collateral such as setoff or repossession; or (iii) obtain provisional or ancillary remedies such
as replevin, injunctive relief, attachment or the appointment of a receiver, before during or after
the pendency of any arbitration proceeding. This exclusion does not constitute a waiver of the
right or obligation of any party to submit any dispute to arbitration or reference hereunder,
including those arising from the exercise of the actions detailed in sections (i), (ii) and (iii)
of this paragraph.
(d) Arbitrator Qualifications and Powers. Any arbitration proceeding in which the
amount in controversy is $5,000,000.00 or less will be decided by a single arbitrator selected
according to the Rules, and who shall not render an award of greater than $5,000,000.00. Any
dispute in which the amount in controversy exceeds $5,000,000.00 shall be decided by majority vote
of a panel of three arbitrators; provided however, that all three arbitrators must actively
participate in all hearings and deliberations. The arbitrator will be a neutral attorney licensed
in the State of Nebraska or a neutral retired judge of the state or federal judiciary of Nebraska,
in either case with a minimum of ten years experience in the substantive law applicable to the
subject matter of the dispute to be arbitrated. The arbitrator will determine whether or not an
issue is arbitratable and will give effect to the statutes of limitation in determining any claim.
In any arbitration proceeding the arbitrator will decide (by documents only or with a hearing at
the arbitrator’s discretion) any pre-hearing motions which are similar to motions to dismiss for
failure to state a claim or motions for summary adjudication. The arbitrator shall resolve all
disputes in accordance with the substantive law of Nebraska and may grant any remedy or relief that
a court of such state could order or grant within the scope hereof and such ancillary relief as is
necessary to make effective any award. The arbitrator shall also have the power to award recovery
of all costs and fees, to impose sanctions and to take such other action as the arbitrator deems
necessary to the same extent a judge could pursuant to the Federal Rules of Civil Procedure, the
Nebraska Rules of Civil Procedure or other applicable law. Judgment upon the award rendered by the
arbitrator may be entered in any court having jurisdiction. The institution and maintenance of an
action for judicial relief or pursuit of a provisional or ancillary remedy shall not constitute a
waiver of the right of any party, including the plaintiff, to submit the controversy or claim to
arbitration if any other party contests such action for judicial relief.
(e) Discovery. In any arbitration proceeding, discovery will be permitted in
accordance with the Rules. All discovery shall be expressly limited to matters directly relevant
to the dispute being arbitrated and must be completed no later than 20 days before the hearing
date. Any requests for an extension of the discovery periods, or any discovery disputes, will be
subject to final determination by the arbitrator upon a showing that the request for discovery is
essential for the party’s presentation and that no alternative means for obtaining information is
available.
(f) Class Proceedings and Consolidations. No party hereto shall be entitled to join
or consolidate disputes by or against others in any arbitration, except parties who have executed
this Guaranty or any other contract, instrument or document relating to any Indebtedness, or to
include in any arbitration any dispute as a representative or member of a class, or to act in any
arbitration in the interest of the general public or in a private attorney general capacity.
(g) Payment Of Arbitration Costs And Fees. The arbitrator shall award all costs and
expenses of the arbitration proceeding.
(h) Miscellaneous. To the maximum extent practicable, the AAA, the arbitrators and
the parties shall take all action required to conclude any arbitration proceeding within 180 days
of the filing of the dispute with the AAA. No arbitrator or other party to an arbitration
proceeding may disclose the existence, content or results thereof, except for disclosures of
information by a party required in the ordinary course of its business or by applicable law or
regulation. If more than one agreement for arbitration by or between the parties potentially
applies to a dispute, the arbitration provision most directly related to the documents between the
parties or the subject matter of the dispute shall control. This arbitration provision shall
survive termination, amendment or expiration of any of the documents or any relationship between
the parties.
IN WITNESS WHEREOF, the undersigned Guarantor has executed this Guaranty as of December 27,
2006.
Lindsay Italia, S.r.l.
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