EXHIBIT 10.4
GUARANTY BY CORPORATION
AGREEMENT made this 31st day of August, 2005, by IntriCon
Corporation, a Pennsylvania corporation (herein called "Guarantor"), for the
benefit of Diversified Business Credit, Inc., a Minnesota corporation (herein
with its participants, successors and assigns called "Lender").
For good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, and to induce Lender from time to time to make
one or more loans or extend other financial accommodations at the discretion of
Lender to Resistance Technology, Inc., a Minnesota corporation and RTI
Electronics, Inc., a Delaware corporation (herein collectively called
"Borrower"), Guarantor hereby guarantees and agrees as follows:
Guarantor hereby absolutely and unconditionally guarantees to
Lender the full and prompt payment when due (whether on demand or at a stated
maturity or earlier by reason of acceleration or otherwise) of any and all
present and future debts, liabilities and obligations owed to Lender by
Borrower; and Guarantor represents, warrants and agrees that:
1. The debts, liabilities and obligations guaranteed hereby
(collectively referred to herein as the "Indebtedness") shall include, but shall
not be limited to, debts, liabilities and obligations of Borrower arising out of
loans, credit transactions, financial accommodations, discounts, purchases of
property or other transactions with Borrower or for Borrower's account or out of
any other business transaction, or event, owed to Lender or owed to others by
reason of participations granted to or interests acquired or created for or sold
to them by Lender, in each case whether now existing or hereafter arising,
whether arising directly in a transaction or event involving Lender or acquired
by Lender from another by purchase or assignment or as collateral security,
whether owed by Borrower as drawer, maker, endorser, accommodation party,
guarantor, principal, surety or as a member of any partnership, syndicate,
association or group or in any other capacity, whether absolute or contingent,
direct or indirect, primary or secondary, joint, several or joint and several,
secured or unsecured, due or not due, liquidated or unliquidated, arising by
agreement or imposed by law or otherwise.
2. Guarantor represents and warrants to Lender that (i)
Guarantor is a corporation duly organized and existing in good standing under
the laws of the state set forth above, has the corporate power to own its
property and to carry on its business as now conducted, and is duly qualified to
do business in all states where such qualification is required; (ii) Guarantor
has full power and authority to execute, deliver and perform this Agreement;
(iii) the execution, delivery and performance of this Agreement have been duly
authorized by all necessary action of the directors and shareholders of
Guarantor and do not and will not violate the provisions of, or constitute a
default under, any provision of law or the articles of incorporation or by-laws
of Guarantor or any agreement binding on Guarantor or on Borrower; (iv) this
Agreement has been duly executed and delivered by authorized officers of
Guarantor and constitutes a lawful, valid and binding obligation of Guarantor,
legally enforceable against it in accordance with its terms; (v) no litigation,
tax claims or governmental proceedings are pending or have been threatened
against Guarantor, and no judgment or order of any court or administrative
agency is outstanding against Guarantor; and (vi) the authorization, execution,
delivery and performance of this Agreement will not be subject to the
jurisdiction, approval or consent of any federal, state or local regulatory body
or administrative agency.
3. No act or thing need occur to establish the liability of
Guarantor hereunder, and no act or thing, except full payment and discharge of
all Indebtedness, shall in any way exonerate Guarantor or modify, reduce, limit
or release its liability hereunder. This is an absolute, unconditional and
continuing guaranty of payment of the Indebtedness and shall continue to be in
force and be binding upon Guarantor, whether or not all Indebtedness is paid in
full, until this guaranty is revoked prospectively as to future transactions, by
written notice actually received by Lender, and such revocation shall not be
effective as to Indebtedness existing or committed for at the time of actual
receipt of such notice by Lender, or as to any renewals, extensions and
refinancings thereof. Any dissolution, adjudication of bankruptcy or disability
or incapacity of Guarantor shall not revoke this guaranty, except upon actual
receipt of written notice thereof by Lender and then only prospectively, as to
future transactions, as herein set forth.
4. Guarantor further represents and warrants to Lender that
Guarantor is affiliated with Borrower and has a direct and substantial economic
interest in Borrower and has received and expects to continue receiving
substantial benefits therefrom and from any loan, credit transactions, financial
accommodations, discounts, purchases of property and other transactions and
events resulting in the creation of Indebtedness, and that this Guaranty is made
and delivered for a corporate purpose. Guarantor agrees promptly to notify
Lender in writing and revoke this Guaranty prospectively (as to future
Indebtedness not outstanding or committed for) in accordance with paragraph 3 if
at any time, in the opinion of Guarantor's directors or management, Guarantor is
not receiving corporate benefits sufficient to warrant the continuance of this
guaranty as to future Indebtedness of Borrower. Accordingly, so long as this
Guaranty is not revoked prospectively in accordance with paragraph 3, the Lender
may rely conclusively on a warranty, hereby made, that Guarantor is continuing
to be benefited by this Guaranty and the Lender shall have no duty to inquire
into or confirm the receipt of any such benefits, and this Guaranty shall be
effective and enforceable by the Lender without regard to the existence, nature
or value of any such benefits.
5. If Guarantor shall be dissolved, shall be or become
insolvent, or shall initiate or have initiated against Guarantor any act,
process or proceeding under the United States Bankruptcy Code or any other
bankruptcy, insolvency or reorganization law or otherwise for the modification
or adjustment of the rights of creditors, then Guarantor will forthwith pay to
Lender the full amount of all Indebtedness then outstanding, whether or not any
Indebtedness is then due and payable.
6. Notwithstanding the aggregate amount of Indebtedness which
may from time to time be outstanding, Guarantor shall be liable for all
Indebtedness, without any limitation as to amount, plus accrued interest thereon
and all attorneys' fees, collection costs and enforcement expenses referable
thereto. Indebtedness may be created and continued in any amount without
affecting or impairing the liability of Guarantor hereunder, and Lender may pay
(or allow for the payment of) the excess out of any sums received by or
available to Lender on account of the Indebtedness from Borrower or any other
person (except Guarantor), from its properties, out of any collateral security
or from any other source, and such payment (or allowance) shall not reduce,
affect or impair the liability of Guarantor hereunder. If the liability of
Guarantor is limited to a stated amount pursuant to this paragraph, any payment
made by Guarantor under this Guaranty shall be effective to reduce or discharge
such liability only if accompanied by a written transmittal document, received
by Lender, advising Lender that such payment is made under this Guaranty for
such purpose. In no event shall Lender be obligated to return, account for, or
incur a liability as a result of, any monies, collateral or other assets of
Guarantor received by Lender under this Guaranty.
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7. Guarantor shall not have and waives any right to subrogation
to any of the rights of Lender against Borrower, any other guarantor, maker or
endorser, and waives its rights to any reimbursement, contribution, recourse and
indemnity therefrom; waives any right to enforce any remedy which Lender now has
or may hereafter have against Borrower, any other guarantor, maker or endorser;
and waives any benefit of, and any other right to participate in, any collateral
security for the Indebtedness or any guarantee of the Indebtedness now or
hereafter held by Lender, unless and until all Indebtedness shall have been
fully paid and discharged.
8. If any payment received and applied by Lender to Indebtedness
is thereafter set aside, recovered, or required to be returned for any reason
(including, without limitation, the bankruptcy, insolvency or reorganization of
Borrower or such other person), the Indebtedness to which such payment was
applied shall for the purposes of this Guaranty be deemed to have continued in
existence, notwithstanding such application, and this Guaranty shall be
enforceable as to such Indebtedness as fully as if such application had not been
made.
9. Lender shall not be obligated by reason of its acceptance of
this Guaranty to engage in any transactions with or for Borrower. Whether or not
any existing relationship between Guarantor and Borrower has been changed or
ended and whether or not this Guaranty has been revoked in accordance with
paragraph 3, Lender may enter into transactions resulting in the creation or
continuance of Indebtedness and may otherwise agree, consent to, or suffer the
creation or continuance of any Indebtedness, without any consent or approval by
Guarantor and without any prior or subsequent notice to Guarantor. The liability
of Guarantor shall not be affected or impaired by any of the following acts or
things (which Lender is expressly authorized to do, omit or suffer from time to
time, both before and after revocation of this Guaranty, without consent or
approval by or notice to Guarantor): (i) any acceptance of collateral security,
guarantors, accommodation parties or sureties for any or all Indebtedness; (ii)
one or more extensions or renewals of Indebtedness (whether or not for longer
than the original period) or any modification of the interest rates, maturities
or other contractual terms applicable to any Indebtedness; (iii) any waiver or
indulgence granted to Borrower, any delay or lack of diligence in the
enforcement of Indebtedness, or any failure to institute proceedings, file a
claim, give any required notices or otherwise protect any Indebtedness; (iv) any
full or partial release of, compromise or settlement with, or agreement not to
sue Borrower or any other guarantor or other person liable in respect of any
Indebtedness; (v) any release, surrender, cancellation or other discharge of any
evidence of Indebtedness or the acceptance of any instrument in renewal or
substitution therefor; (vi) any failure to obtain collateral security (including
rights of setoff) for Indebtedness, or to see to the proper or sufficient
creation and perfection thereof, or to establish the priority thereof, or to
preserve, protect, insure, care for, exercise or enforce any collateral
security; or any modification, alteration, substitution, exchange, surrender,
cancellation, termination, release or other change, impairment, limitation, loss
or discharge of any collateral security; (vii) any collection, sale, lease or
other disposition of, or any other foreclosure or enforcement of or realization
on, any collateral security; (viii) any assignment, pledge or other transfer of
any Indebtedness or any evidence thereof; (ix) any manner, order or method of
application of any payments or credits upon Indebtedness. Guarantor waives any
and all defenses and discharges available to a surety, guarantor, or
accommodation co-obligor, dependent on its character as such.
10. Guarantor waives any and all defenses, claims, setoffs and
discharges of Borrower, or any other obligor, pertaining to Indebtedness, except
the defense of discharge by payment in full. Without limiting the generality of
the foregoing, Guarantor will not assert against Lender any defense of waiver,
release, discharge in bankruptcy, statute of limitations, res judicata, statute
of frauds, anti-deficiency statute, fraud, incapacity, minority, usury,
illegality or unenforceability which may be
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available to Borrower or any other person liable in respect of any Indebtedness,
or any setoff available against Lender to Borrower or any such other person,
whether or not on account of a related transaction, and Guarantor expressly
agrees that Guarantor shall be and remain liable for any deficiency remaining
after foreclosure of any mortgage or security interest securing Indebtedness,
whether or not the liability of Borrower or any other obligor for such
deficiency is discharged pursuant to statute or judicial decision. The liability
of Guarantor shall not be affected or impaired by any voluntary or involuntary
liquidation, dissolution, sale or other disposition of all or substantially all
of the assets, marshalling of assets and liabilities, receivership, insolvency,
bankruptcy, assignment for the benefit of creditors, reorganization,
arrangement, composition or readjustment of, or other similar event or
proceeding affecting, Borrower or any of its assets. Guarantor will not assert
against Lender any claim, defense or setoff available to Guarantor against
Borrower.
11. Guarantor waives presentment, demand for payment, notice of
dishonor or nonpayment, and protest of any instrument evidencing Indebtedness.
Lender shall not be required first to resort for payment of the Indebtedness to
Borrower or other persons, or their properties, or first to enforce, realize
upon or exhaust any collateral security for Indebtedness, before enforcing this
Guaranty.
12. Guarantor will pay or reimburse Lender for all costs and
expenses (including attorneys' fees and legal expenses) incurred by Lender in
connection with the collection of any Indebtedness or the enforcement of this
Guaranty.
13. This Guaranty shall be binding upon Guarantor, its
successors and assigns and shall inure to the benefit of Lender and its
participants, successors and assigns. Except to the extent otherwise required by
law, this Guaranty and the transaction evidenced hereby shall be governed by the
substantive laws of the State of Minnesota. If any provision or application of
this Guaranty is held unlawful or unenforceable in any respect, such illegality
or unenforceability shall not affect other provisions or applications which can
be given effect, and this Guaranty shall be construed as if the unlawful or
unenforceable provision or application had never been contained herein or
prescribed hereby. All representations and warranties contained in this Guaranty
or in any other agreement between Guarantor and Lender shall survive the
execution, delivery and performance of this Guaranty and the creation and
payment of the Indebtedness. This Guaranty may not be waived, modified,
invalidated, terminated or released or otherwise changed except by a writing
signed by Lender. This Guaranty shall be effective whether or not accepted in
writing by Lender, and Guarantor waives notice of the acceptance of this
Guaranty by Lender.
14. GUARANTOR HEREBY CONSENTS TO THE EXCLUSIVE JURISDICTION OF
ANY STATE OR FEDERAL COURT SITUATED IN HENNEPIN COUNTY, MINNESOTA AND WAIVES ANY
OBJECTION BASED ON FORUM NON CONVENIENS, WITH REGARD TO ANY ACTIONS, CLAIMS,
DISPUTES OR PROCEEDINGS RELATED TO THIS AGREEMENT, THE INDEBTEDNESS, ANY OTHER
AGREEMENTS OR DOCUMENTS, OR ANY TRANSACTIONS ARISING THEREFROM, OR ENFORCEMENT
AND/OR INTERPRETATION OF ANY OF THE FOREGOING.
15. GUARANTOR HEREBY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY
ACTION OR PROCEEDING ARISING OUT OF THIS AGREEMENT, THE INDEBTEDNESS OR ANY
OTHER AGREEMENTS OR TRANSACTIONS BETWEEN GUARANTOR AND LENDER.
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16. This Guaranty is secured by a Security Agreement dated of
even date herewith.
IN WITNESS WHEREOF, this Guaranty has been duly executed and
delivered by the proper officers thereunto duly authorized on the day and year
first above written.
INTRICON CORPORATION
By: /s/Mark S. Gorder
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President
By: /s/William J. Kullback
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Secretary
Federal Identification Number:________________
Organizational Number: 323408
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