FORM OF CONTINUING AGREEMENT OF GUARANTY AND SURETYSHIP
EXHIBIT 10.44
THIS CONTINUING AGREEMENT OF GUARANTY AND SURETYSHIP (together with all amendments,
extensions, restatements, renewals, substitutions and replacements hereto or hereof is hereinafter
referred to as the “Guaranty”) dated as of January ___, 2010, is made by ENERGY, INC., a
Montana corporation (the “Guarantor”), in favor of THE HUNTINGTON NATIONAL BANK (the
“Lender”).
RECITALS:
WHEREAS, pursuant to that certain Amended and Restated Loan Agreement (as it may hereafter
from time to time be further restated, amended, modified or supplemented, the “Credit
Agreement”) dated as of December 31, 2009 by and among the Xxxxxx Natural Gas Company, an Ohio
corporation (the “Borrower”), and Xxxxxxx X. Xxxxxxx, an individual resident of Ohio
(“Xxxxxxx”), XXX Marketing, Inc., an Ohio corporation (“ONG”), Lightning Pipeline
Company, Inc., an Ohio corporation (“Lightning”), Lightning Pipeline Company II, Inc., an
Ohio corporation (“Lightning II”), each of Osborne, ONG, Lightning and Lighting II being a
Guarantor (as defined therein) along with the other Guarantors (as defined therein) from time to
time party thereto, and the Lender (the “Credit Agreement”) the Lender agreed to continue
to make certain loans and other extensions of credit to the Borrower; and
WHEREAS, in connection with the Credit Agreement, the Borrower and Xxxxxxx requested the
consent of the Lender, and the Lender so consented, to the acquisition of Lightning, the sole
shareholder of the Borrower, and of the Borrower by the Guarantor by means of a merger whereby
Lightning Pipeline Acquisition Inc., an Ohio corporation, and a wholly-owned subsidiary of the
Guarantor, would merge with and into Lightning, pursuant to which Lightning would be the survivor,
which merger became effective on January 5, 2010 (the “Merger”); and
WHEREAS, the obligation of the Lender to provide such consent to the Merger and to continue to
make loans and extend credit under the Credit Agreement was and is subject to the condition, among
others, that after the Merger, the Guarantor enter into this Guaranty and join in the Credit
Agreement as an additional Corporate Loan Party (as defined therein); and
WHEREAS, the Borrower and the Guarantor are engaged in related businesses and/or have related
economic interests, and the ability of the Borrower to borrow under the Credit Agreement is
expected to be of direct and indirect material benefit to the Guarantor; and
WHEREAS, the Guarantor has determined, reasonably and in good faith, that (a) the Guarantor
will receive a material benefit from being a guarantor and surety of the Indebtedness of the
Borrower under the Credit Agreement, (b) the Guarantor has adequate capital to conduct the
Guarantor’s business as presently conducted and as proposed to be conducted, (c) the Guarantor will
be able to meet the Guarantor’s obligations hereunder and in respect of the Guarantor’s existing
and future Indebtedness and liabilities (contingent or otherwise) as and when the same shall become
due and payable, including those under this Guaranty, and (d) the Guarantor is otherwise Solvent;
and
WHEREAS, the Guarantor has determined that the execution and delivery of this Guaranty is in
furtherance of the Guarantor’s business purposes and in the Guarantor’s best interests, having
regard to all relevant facts and circumstances.
NOW, THEREFORE, in consideration of the premises (each of which is incorporated herein by
reference), other good and valuable consideration, the receipt and sufficiency of which by the
Guarantor are hereby acknowledged, and with the intent of being legally bound hereby, the Guarantor
hereby agrees as follows:
ARTICLE I
DEFINITIONS
1.1 Definitions. Capitalized terms used herein as defined terms and not defined
herein which are defined in the Credit Agreement shall have the meanings given them in the Credit
Agreement. In addition, the following terms as used herein shall have the following meanings:
“Final Payment” shall mean the occurrence of all of the following events: (i) the
indefeasible payment in full of all of the Obligations, (ii) the absence of any obligation on the
part of the Lender to make any advances to the Borrower, and (iii) the expiration or termination of
all Letters of Credit.
“Obligations” shall have the meaning set forth in the Credit Agreement.
ARTICLE II
GUARANTY
2.1 Guaranty. (a) The Guarantor hereby unconditionally, absolutely and irrevocably
guarantees to the Lender, and becomes surety for, the complete, due and punctual payment of the
Obligations, and for the complete, due and punctual performance by the Borrower of each of the
other terms and provisions of the Credit Agreement, the Notes and the other Loan Documents as and
when the same shall become due (whether at maturity, by acceleration or otherwise) according to the
terms thereof. This is a guaranty of payment and not a guaranty of collection. In case of failure
by the Borrower punctually to pay the Indebtedness guaranteed hereby, the Guarantor hereby
unconditionally agrees to cause such payment to be made punctually as and when the same shall
become due and payable, whether at maturity or by acceleration or otherwise, and as if such payment
was made by the Borrower. The Lender shall not be required, as a condition of the liability of the
Guarantor, to make any demand upon, or to pursue any of the rights of the Lender against the
Borrower, or to pursue any rights which may be available to the Lender, with respect to any other
Guarantor or other Person who may be liable for the payment of any Indebtedness or obligation of
the Borrower to the Lender. This Guaranty shall remain in full force and effect until Final Payment
has occurred.
(b) The Guarantor agrees that whenever, at any time or from time to time, the Guarantor
shall make any payment to the Lender on account of the liability of the Guarantor
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hereunder, the Guarantor will notify the Lender in writing that such payment is made under this Guaranty for such
purpose.
(c) No payment or payments made by the Borrower, the Guarantor, the other Guarantors, any
other guarantor or any other Person or received or collected by the Lender from the Borrower, the
Guarantor or any other Guarantor, any other guarantor or any other Person by virtue of any action
or proceeding or any set-off or appropriation or application, at any time or from time to time, in
reduction of or in payment of the Obligations, shall be deemed to modify, reduce, release or
otherwise affect the liability of the Guarantor or any other Guarantor hereunder which shall,
notwithstanding any such payment or payments other than payments made by the Guarantor in respect
of the Obligations (in accordance with the terms and provisions hereof) or payments received or
collected from the Guarantor in respect of the Obligations, remain liable for the Obligations until
Final Payment has occurred.
2.2 Guarantees Absolute and Unconditional. The Obligations, and any of them, shall
conclusively be deemed to have been created, contracted or incurred in reliance upon this Guaranty;
all dealings between the Borrower, or the Guarantor or any other Guarantor, on the one hand, and
the Lender, on the other hand, shall likewise be conclusively presumed to have been had or
consummated in reliance upon this Guaranty; and the Guarantor waives any and all notice of and
proof of reliance by the Lender, upon this Guaranty or acceptance of this Guaranty. The
obligations of the Guarantor under this Guaranty shall be continuing, unconditional, irrevocable
and absolute and shall be independent of any obligations of the Borrower and, without limiting the
generality of the foregoing, shall not be released, discharged or otherwise affected by any of the
following matters and no right or remedy of the Lender shall be in any way prejudiced or adversely
affected by any of the following matters (whether or not the Lender shall make any reservation of
rights against, give or attempt to give any notice to, or request or obtain any further assent of
the Guarantor with respect to any of the following matters):
(a) any extension, renewal, settlement, compromise, waiver or release in respect of any of the
Obligations or any other obligation of the Borrower under the Notes, the Credit Agreement or any
other Loan Document;
(b) any modification or amendment of or supplement to the Notes, the Credit Agreement or any
other Loan Document;
(c) any modification, amendment, waiver, release, compromise, non-perfection or invalidity of
any direct or indirect security, or of any guarantee or other liability of any third party, for any
of the Obligations or any other obligation of the Borrower under the Notes, the Credit Agreement or
any other Loan Document;
(d) any change in the corporate or other existence, structure or ownership of the Guarantor or
the Borrower, or any insolvency, bankruptcy, reorganization or other similar proceeding affecting
the Borrower or its assets (irrespective of any release or deferral of the liability of the
Guarantor to pay all or any part Obligations or any of the
Borrower’s other obligations under the Notes, the Credit Agreement or any other Loan Document pursuant to any
such insolvency, bankruptcy or other similar proceeding);
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(e) the existence of any claim, set-off or other rights which the Guarantor may have at any
time against the Borrower, any other Guarantor, the Lender or any other Person, whether or not
arising in connection with this Guaranty, the Obligations, the Notes, the Credit Agreement or any
other Loan Document;
(f) any invalidity or unenforceability relating to or against the Borrower for any reason of
the Credit Agreement, the Notes or any other Loan Document, or any provision of applicable law or
regulation purporting to prohibit the payment by the Borrower of the Obligations or any other
amount payable by the Borrower under the Notes, the Credit Agreement or any other Loan Document;
(g) any invalidity or unenforceability relating to or against the Borrower for any reason of
its obligations and liabilities under the Credit Agreement, the Notes or any other Loan Document;
(h) any other act or failure to act or delay of any kind by the Borrower, any other Guarantor,
the Lender or any other Person or any other circumstance whatsoever that might, but for the
provisions of this paragraph, constitute a legal or equitable discharge of the obligations of the
Guarantor under this Guaranty;
(i) the existence of, or any execution on or attachment of, or any failure by the Lender to
resort to, any other security or any other rights held or hereafter held or to be held by the
Lender to secure any or all of the Obligations or other obligations of the Borrower under the
Credit Agreement, the Notes or any other Loan Document or any judgment obtained by the Lender.
(j) any demand for payment of any of the Obligations is rescinded by the Lender and any of the
Obligations continued; or
(k) the refusal or failure (whether intentional, negligent or otherwise) of the Lender or any
agent of the Lender to protect, secure, perfect, continue, maintain or insure any lien at any time
held by it as security for the Obligations or any other obligations of the Borrower under the
Notes, the Credit Agreement or any other Loan Document (including this Guaranty) or any property
subject thereto.
2.3 Discharge; Reinstatement in Certain Circumstances. The Guarantor’s obligations
under this Guaranty shall remain in full force and effect until Final Payment has occurred. If at
any time any payment (or part thereof) of any of the Obligations is rescinded or must be otherwise
restored or returned upon the insolvency, bankruptcy or reorganization of the Borrower or
otherwise, the Guarantor’s obligations under this Guaranty with respect to such payment shall be
reinstated at such time as though such payment had become due but had not been made at such time.
2.4 Right of Set-off. Upon any or all of the Obligations becoming due and payable
(whether at the stated maturity, by acceleration or otherwise), the Lender is hereby irrevocably
authorized by the Guarantor at any time and from time to time, without prior notice to the
Guarantor, any such prior notice being hereby waived by the Guarantor, to set-off and appropriate
and apply any and all deposits (general or special, time or demand, provisional or
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final), in any currency, in each case whether direct or indirect, absolute or contingent, matured or unmatured, at
any time held or owing by the Lender to or for the credit or the account of the Guarantor, or any
part thereof in such amounts, not to exceed the amount then due, as the Lender may elect, whether
or not the Lender has made any demand for payment and although such liabilities may be contingent
or unmatured. The Lender shall notify the Guarantor of any such set-off made by the Lender and the
application made by the Lender of the proceeds thereof; provided, however, that the failure to give
such notice shall not affect the validity of such set-off and application. The rights of the
Lender hereunder are in addition to other rights and remedies (including, without limitation, other
rights of set-off) which the Lender may have.
2.5 No Subrogation. Notwithstanding any payment or payments made by the Guarantor
hereunder, or any set-off or application of funds of the Guarantor by the Lender, the Guarantor
shall not be entitled to be subrogated to any of the rights of the Lender against the Borrower or
against any collateral security or guaranty or right of offset held by the Lender for the payment
of the Obligations, nor shall the Guarantor seek any contribution or reimbursement from the
Borrower in respect of any payments (or any parts thereof) made by the Guarantor hereunder until
Final Payment has occurred. The Guarantor hereby irrevocably, unconditionally and absolutely
waives and agrees not to exercise or claim any rights which the Guarantor may acquire or claim by
way of subrogation, contribution, reimbursement or indemnity with respect to any payments made or
performance by the Guarantor hereunder or under any other Loan Document until Final Payment has
occurred.
2.6 Waiver. The Guarantor irrevocably waives acceptance hereof, presentment, demand,
protest and any notice not provided for herein, as well as any requirement that at any time any
action be taken by any Person against the Borrower, any other Guarantor or any other Person. The
Guarantor also waives any notice of the creation, incurrence, renewal, extension or accrual of any
of the Obligations or any other Indebtedness or obligation of the Borrower to the Lender. The
Guarantor also waives presentment and any notices with respect to any evidence of Indebtedness of
the Borrower to the Lender and, until the Lender shall have been paid in full, any right the
undersigned might otherwise have to the marshalling of any assets of the Borrower. Without limiting
the generality of the foregoing, the Guarantor waives diligence, presentment, protest, demand for
payment and notice of default or nonpayment to or upon the Borrower or the Guarantor with respect
to any of the Obligations.
2.7 Stay of Acceleration. If acceleration of the time for payment of any amount
payable by the Borrower with respect to the Obligations is stayed upon the insolvency, bankruptcy
or reorganization of the Borrower, all such amounts otherwise subject to acceleration under the
terms of the Credit Agreement shall nonetheless be payable by the Guarantor hereunder forthwith on
written demand by the Lender.
2.8 Assignment or Transfer; Waiver. The Guarantor covenants and agrees that: (a) this
Guaranty shall continue to be binding and in full force and effect notwithstanding (i) any transfer
or assignment by the Borrower of the obligations under the Credit Agreement, the Notes or the other
Loan Documents to any permitted holder of the Obligations or
(ii) any transfer or assignment of the benefit of this Guaranty to any Person; and (b) the Guarantor shall waive
each and all of the Guarantor’s rights (whether legal, equitable, statutory or otherwise) as surety
which
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may at any time be inconsistent with this Guaranty or in any way restrict or prejudicially
affect the rights, remedies or recourse of the Lender hereunder.
2.9 Payments; Application of Moneys. The Guarantor hereby agrees that all payments
hereunder will be paid to the Lender without set-off or counterclaim in Dollars at the office of
the Lender at Centre City Tower PT400, Suite 1000, 000 Xxxxxxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxx
00000 or such other address as directed by the Lender. Any amounts received by the Lender from the
Guarantor shall be deemed to reduce the obligations of the Guarantor hereunder only as provided
herein and, in any case, only to the extent of the amounts actually received by the Lender after
deduction of all costs and expenses of and related to obtaining payment thereof.
2.10 Manner of Dealing. The Lender, without notice to the Guarantor, shall have the
right to deal in any manner it shall see fit with any Indebtedness (including the Obligations) of
the Borrower to the Lender and with any security or guaranty for such Indebtedness, and, without
limiting the foregoing, may accept partial payments on account of any Indebtedness or obligation of
the Borrower (including the Obligations), and may grant extensions or renewals of all or any part
of any such Indebtedness, and may, at any time and from time to time, release all or any part of
the security or guaranty for, and demand or receive additional security or guaranty for, any such
Indebtedness or obligation of the Borrower.
2.11 Release of Other Guarantors; Release of Collateral.
(a) The Lender, may, without notice to the Guarantor, and without prejudice to this Guaranty,
release and discharge from liability any other Guarantors or other guarantor of, or surety for, the
payment of any Indebtedness or obligation of the Borrower to the Lender and the Guarantor agrees to
remain bound hereby notwithstanding.
(b) The Lender may, without notice to the Guarantor, and without prejudice to this Guaranty,
release and discharge any collateral granted or assigned to the Lender to secure the payment of any
Indebtedness or obligation of the Borrower to the Lenders and the Guarantor agrees to remain bound
hereby notwithstanding.
2.12 Additional Default Under Agreement. The Guarantor hereby acknowledges and agrees
that any violation by the Guarantor of the terms, conditions, representations, warranties,
covenants and agreements herein set forth shall constitute an Event of Default under the terms of
the Credit Agreement, subject to and except as otherwise provided in the last paragraph of Section
8.1 of the Credit Agreement to the extent of such proviso regarding Xxxxxxx, XXX and Lightening II.
2.13 Severability; Modification to Conform to Law.
(a) It is the intention of the parties that this Guaranty be enforceable to the fullest extent
permissible under applicable law, but that the unenforceability (or modification to conform to such
law) of any provision or provisions hereof shall not render unenforceable, or impair, the remainder
hereof. If any provision in this Guaranty shall be held invalid orunenforceable in whole or in part, this Guaranty shall be deemed amended to modify or delete,
as necessary, the offending provision or provisions and to alter the bounds thereof in order to
render
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it or them valid and enforceable to the maximum extent permitted by applicable law, without
in any manner affecting the validity or enforceability of the remaining provisions hereof.
(b) Without limitation of the preceding subsection (a), to the extent that applicable law
(including applicable laws pertaining to fraudulent conveyance or fraudulent or preferential
transfer) otherwise would render the full amount of the Guarantor’s obligations hereunder invalid,
voidable, or unenforceable on account of the amount of the Guarantor’s aggregate liability under
this Guaranty, then, notwithstanding any other provision of this Guaranty to the contrary, the
aggregate amount of such liability shall, without any further action by the Lender or any other
Person, be automatically limited and reduced to the highest amount which is valid and enforceable
as determined in such action or proceeding.
(c) Notwithstanding anything to the contrary in this Section 2.13 or elsewhere in this
Guaranty, this Guaranty shall be presumptively valid and enforceable to its full extent in
accordance with its terms, as if this Section 2.13 (and references elsewhere in this Guaranty to
enforceability to the fullest extent permitted by law) were not a part of this Guaranty, and in any
related litigation the burden of proof shall be on the party asserting the invalidity or
unenforceability of any provision hereof or asserting any limitation on the Guarantor’s obligations
hereunder as to each element of such assertion.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
The Guarantor represents and warrants to the Lender as follows.
3.1 Solvency. After giving effect to the incurrence of the Indebtedness pursuant to
this Guaranty and to the transactions contemplated by this Guaranty, the Credit Agreement, the
Notes and the other Loan Documents, and the payment of all estimated legal and other fees related
hereto and thereto, the Guarantor is Solvent as of and on the Closing Date and at all times
thereafter.
3.2 Review of Documents. The Guarantor hereby represents and warrants that the
Guarantor has reviewed the Credit Agreement, the Notes and the other Loan Documents and, after
consultation with legal counsel, acknowledges and consents to the terms of each.
ARTICLE IV
INDEMNIFICATION
4.1 Indemnification by Guarantor. The Guarantor hereby agrees to indemnify the
Lender, and any of its directors, officers, employees, attorneys, agents and Affiliates (each of
the foregoing an “Indemnified Person”) against, and hold each of them harmless from, any
loss, liabilities, damages, claims, costs and expenses (including reasonable attorneys’ fees and
disbursements) suffered or incurred by any Indemnified Person (except those caused by such
Indemnified Person’s gross negligence or willful misconduct) arising out of or resulting from (i)
any breach by the Guarantor of the Guarantor’s obligations hereunder, or (ii) anyinvestigation or litigation relating to the foregoing. The indemnity set forth in this Section 4.1
shall be in
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addition to any other obligations or liabilities of the Guarantor to the Lender, or at
common law or otherwise. The provisions of this Section 4.1 shall survive the payment of the
Obligations and the termination of the Credit Agreement and the other Loan Documents.
ARTICLE V
MISCELLANEOUS
5.1 Notices. All notices, statements, requests and demands given to or made upon any
party hereto in accordance with the provisions of this Guaranty shall be given or made as provided
in Section 10.3 [Notices] of the Credit Agreement.
5.2 No Waiver. No failure or delay by the Lender in exercising any right, power or
privilege under this Guaranty, the Credit Agreement, the Notes or any other Loan Document shall
operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or
further exercise thereof or the exercise of any other right, power or privilege. The rights and
remedies herein and therein provided shall be cumulative and not exclusive of any rights or
remedies provided by law.
5.3 Amendments and Waivers. Any provision of this Guaranty may be amended or waived
if, and only if, such amendment or waiver is in writing and is signed by the Guarantor and Lender,
as more fully set forth in Section 10.1 [Amendments and Waivers] of the Credit Agreement. Any such
amendment or waiver which complies with the provisions of this Section 5.3 shall be limited to the
matters set forth in amendment or waiver.
5.4 Joinder to Credit Agreement as Additional Guarantor. Upon and by the execution
and delivery of this Guaranty by the Guarantor, the Guarantor has become and shall for all purposes
be deemed a “Guarantor” under the Credit Agreement with the same force and effect as if the
Guarantor were originally a party to the Credit Agreement and named as a “Guarantor”
thereunder; all as contemplated by and provided under the Credit Agreement. The execution and
delivery of this Guaranty shall not require the consent of the Borrower or any other Guarantor
under the Credit Agreement, and the rights and obligations of each other Guarantor thereunder and
under any other Loan Document shall remain in full force and effect notwithstanding the addition of
the Guarantor as a party to the Credit Agreement; all as contemplated by and provided under the
Credit Agreement.
5.5 CONSENT TO JURISDICTION AND VENUE. THE GUARANTOR AGREES THAT ANY ACTION OR
PROCEEDING ARISING OUT OF OR IN CONNECTION WITH THIS GUARANTY SHALL BE COMMENCED IN THE COURT OF
COMMON PLEAS OF LAKE COUNTY, OHIO OR IN XXX XXXXXXXX XXXXX XX XXX XXXXXX XXXXXX FOR THE NORTHERN
DISTRICT OF OHIO AND FURTHER AGREES THAT A SUMMONS AND COMPLAINT COMMENCING AN ACTION OR PROCEEDING
IN ANY OF SUCH COURTS SHALL BE PROPERLY SERVED AND SHALL CONFER PERSONAL JURISDICTION IF SERVED
PERSONALLY OR BY CERTIFIED MAIL TO THE GUARANTOR AT THE GUARANTOR’S ADDRESS DESIGNATED PURSUANT
HERETO,OR AS OTHERWISE PROVIDED UNDER THE LAWS OF THE STATE OF OHIO. FURTHER, THE GUARANTOR HEREBY
SPECIFICALLY CONSENTS TO THE
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PERSONAL JURISDICTION OF THE COURT OF COMMON PLEAS OF LAKE COUNTY,
OHIO AND OF THE DISTRICT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF OHIO, AND WAIVES
AND HEREBY ACKNOWLEDGES THAT THE GUARANTOR IS ESTOPPED FROM RAISING ANY OBJECTION BASED ON
FORUM NON CONVENIENS, ANY CLAIM THAT ANY SUCH COURTS LACK PROPER VENUE OR ANY CLAIM THAT
ANY SUCH COURT LACKS PERSONAL JURISDICTION OVER THE GUARANTOR SO AS TO PROHIBIT ANY SUCH COURT FROM
ADJUDICATING ANY ISSUES RAISED IN A COMPLAINT FILED WITH ANY SUCH COURT AGAINST THE GUARANTOR BY
THE LENDER CONCERNING THIS GUARANTY OR ANY PAYMENT TO THE LENDER. THE GUARANTOR HEREBY
ACKNOWLEDGES AND AGREES THAT THE EXCLUSIVE CHOICE OF FORUM CONTAINED IN THIS SECTION 5.5 SHALL NOT
BE DEEMED TO PRECLUDE THE ENFORCEMENT OF ANY JUDGMENT OBTAINED IN SUCH FORUM OR THE TAKING OF ANY
ACTION UNDER THE LOAN DOCUMENTS TO ENFORCE THE SAME IN ANY APPROPRIATE JURISDICTION.
5.6 Power to Confess Judgment. The Guarantor hereby irrevocably authorizes any
attorney-at-law, including an attorney employed by or retained and paid by the Lender, to appear in
any court of record in or of the State of Ohio, or in any other state or territory of the United
States, at any time after the Loans or any of the other Obligations become due, whether by
acceleration or otherwise, to waive the issuing and service of process and to confess a judgment
against the Guarantor favor of the Lender, and/or any assignee or holder hereof for the amount of
the Loans and any of the Obligations then appearing due from the Guarantor under this Guaranty,
together with costs of suit and thereupon to release all errors and waive all right of appeal or
stays of execution in any court of record. The Guarantor hereby expressly (i) waives any conflict
of interest of the attorney(s) retained by the Lender to confess judgment against the Guarantor
upon this Guaranty, and (ii) consents to the receipt by such attorney(s) of a reasonable legal fee
from the Lender for legal services rendered for confessing judgment against the Guarantor upon this
Guaranty. A copy of this Guaranty, certified by the Lender, may be filed in each such proceeding
in place of filing the original as a warrant of attorney.
The Guarantor acknowledges that it has read and understood all the provisions of this Guaranty,
including the confession of judgment and waiver of jury trial, and has been advised by counsel as
necessary or appropriate.
5.7 Severability. Whenever possible each provision of this Guaranty shall be
interpreted in such manner as to be effective and valid under applicable law but if any provision
of this Guaranty, or any part of such provision, shall be prohibited by or invalid under applicable
law, such provision or part thereof shall be ineffective to the extent of such prohibition or
invalidity without invalidating the remainder of such provision or the remaining provisions of this
Guaranty.
5.8 Successors and Assigns. All of the provisions of this Guaranty shall be binding
upon the Guarantor, its successors and assigns, and shall inure to the benefit of the Lender, and
its successors and assigns; provided however, that the Guarantor may not assign the
Guarantor’s obligations under this Guaranty without the prior written consent of the Lender.
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5.9 Gender, Number. Whenever required by the context of this Guaranty, the singular
shall include the plural, and vice versa, and the masculine and feminine genders shall include the
neuter gender and vice versa.
5.10 Headings. The headings of the articles and sections of this Guaranty are
inserted for convenience only and shall not affect the construction hereof or be taken into
consideration in the interpretation hereof or be deemed to constitute a part hereof.
5.11 Counterparts. This Guaranty may be executed in as many counterparts as shall be
convenient, each of which when executed by the Guarantor shall be regarded as an original. All
such counterparts shall constitute but one and the same instrument. In proving this Guaranty, it
shall not be necessary to produce or account for more than one such counterpart signed by the other
party against whom enforcement is sought. Delivery of an executed counterpart of a signature page
to this Guaranty by telecopier shall be as effective as delivery of a manually executed counterpart
of this Guaranty.
5.12 Collection Costs. The Guarantor agrees to pay attorneys’ fees and all other
costs and expenses which may be incurred by the Lender in the enforcement of this Guaranty.
5.13 Integration. This Guaranty constitutes the entire agreement between the parties
relating to the guarantee of the Obligations by the Guarantor and this Guaranty supersedes all
prior understandings and agreements, whether written or oral, between the parties hereto relating
to the transactions provided for herein.
5.14 GOVERNING LAW. THIS GUARANTY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF OHIO, WITHOUT REGARD TO THE PRINCIPLES THEREOF REGARDING CONFLICT OF
LAWS, EXCEPTING APPLICABLE FEDERAL LAW AND EXCEPT ONLY TO THE EXTENT PRECLUDED BY THE MANDATORY
APPLICATION OF THE LAW OF ANOTHER JURISDICTION.
5.15 Survival. All representations, warranties, covenants and agreements of the
Guarantor contained herein or in the other Loan Documents or made in writing in connection herewith
shall survive the execution and delivery of this Guaranty and the issuance of the Notes and shall
continue in full force and effect in until Final Payment has occurred, notwithstanding that at any
time or from time to time prior thereto the Borrower may be free from any Obligations. The
obligations of the Guarantor under Sections 2.5, 4.1, 5.13 and 5.17 shall survive the termination
of this Guaranty and the discharge of the other obligations of the Guarantor hereunder, and any
other Loan Documents to which the Guarantor is a party, and shall also survive Final Payment.
5.16 Taxes and Fees. The Guarantor shall pay any and all stamp, document, transfer
and recording taxes, filing fees and similar impositions payable or hereafter determined by the
Lender to be payable in connection with this Guaranty and the other Loan Documents to which the
Guarantor is a party. The Guarantor agrees to save the Lender harmless from and against any
and all present and future claims or liabilities with respect to, or resulting from, any delay
in paying or failure to pay any such taxes or similar impositions.
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5.17 WAIVER OF JURY TRIAL. THE GUARANTOR HEREBY WAIVES THE RIGHT TO TRIAL BY JURY IN
ANY COURT AND IN ANY ACTION OR PROCEEDING OF ANY TYPE IN WHICH THE GUARANTOR, THE LENDER OR ANY OF
THEIR RESPECTIVE SUCCESSORS OR ASSIGNS IS A PARTY, AS TO ALL MATTERS AND THINGS ARISING OUT OF THIS
GUARANTY.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.]
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[SIGNATURE PAGE TO CONTINUING AGREEMENT OF GUARANTY AND SURETYSHIP]
IN WITNESS WHEREOF, with intent to be legally bound hereby, and with the further intention
that this Continuing Agreement of Guaranty and Suretyship shall constitute a sealed instrument, the
Guarantor has caused this Continuing Agreement of Guaranty and Suretyship to be duly executed by
its authorized officer as of the date first above written.
WARNING-BY SIGNING THIS PAPER YOU GIVE UP YOUR RIGHT TO NOTICE AND
COURT TRIAL. IF YOU DO NOT PAY ON TIME A COURT JUDGMENT MAY BE
TAKEN AGAINST YOU WITHOUT YOUR PRIOR KNOWLEDGE AND THE POWERS OF A
COURT CAN BE USED TO COLLECT FROM YOU REGARDLESS OF ANY CLAIMS YOU
MAY HAVE AGAINST THE CREDITOR WHETHER FOR RETURNED GOODS, FAULTY
GOODS, FAILURE ON HIS PART TO COMPLY WITH THE AGREEMENT, OR ANY
OTHER CAUSE.
|
ENERGY, INC. |
||||
| By: | (Seal) | |||
| Name: | Xxxxx X. Xxxxxxxxxx | |||
| Title: | President and Chief Operating Officer | |||
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