GUARANTY
EXHIBIT
10.38
THIS GUARANTY (this “Guaranty”) is executed and delivered effective as of January 5, 2010, by
ENERGY, INC., a Montana corporation, whose address is 0000 Xxxxxxx Xxxxxx, Xxxxxx, Xxxx 00000
(“Guarantor”), in favor of CITIZENS BANK, having an address at 000 X. Xxxxxxx Xxxxxx, Xxxxx,
Xxxxxxxx 00000 (“Bank”).
W I T N E S S E T H:
WHEREAS, Bank has agreed to modify a certain term loan to Great Plains Land Development
Company, Ltd., an Ohio limited liability company (“Borrower”), in the original principal amount of
Eight Hundred Ninety-Two Thousand Three Hundred and no/100 Dollars ($892,300.00) (the “Loan”),
which Loan was made pursuant to and in accordance with the Credit Agreement dated July 3, 2008 by
and between Borrower and Bank (the “Credit Agreement”); and
WHEREAS, Borrower has executed and delivered to Bank, among other things, a Term Note dated
July 3, 2008, in the original principal amount of Eight Hundred Ninety-Two Thousand Three Hundred
and no/100 Dollars ($892,300.00) (said Term Note, as the same may from time to time be increased,
decreased, amended, modified, revised, supplemented, renewed, extended or restated, are hereinafter
collectively referred to as the “Note”), to evidence its obligation to repay the Loan made to it by
Bank and to perform all of its obligations under the Loan Documents (as herein defined); and
WHEREAS, the Loan is secured by, among other things, a Security Agreement dated July 3, 2008,
by and between Borrower and Bank (the “Security Agreement”) and such other documents executed in
connection with the Credit Agreement, the Note or the Security Agreement (the Credit Agreement, the
Note and the Security Agreement, together with such other documents executed in connection with any
of the foregoing, as the same may from time to time be amended, modified, revised, supplemented,
substituted, renewed, extended or restated, are hereinafter collectively referred to as the “Loan
Documents”); and
WHEREAS, Guarantor has a direct economic interest in Borrower, and Bank has agreed to modify
the Loan in consideration of this Guaranty pursuant to a Loan Modification Agreement dated of even
date herewith executed by Borrower and the other guarantors of the Loan in favor of Bank, and the
Loan will inure directly or indirectly to the benefit of Guarantor, and such benefit is sufficient
consideration for the execution and delivery of this Guaranty in favor of Bank; and
WHEREAS, Guarantor has agreed to execute and deliver this Guaranty to Bank at the request of
Borrower in order to induce Bank to modify the Loan and to satisfy a condition precedent to
effectuating said modification of the Loan.
NOW, THEREFORE, in consideration of the premises and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, and to induce Bank to modify the
Loan, Guarantor does hereby agree with Bank as follows:
Page 1 of 7
1. Guarantor hereby irrevocably, absolutely and unconditionally, and jointly and severally
with all other guarantors of the Loan, guarantees to Bank, its successors and assigns, and all
subsequent holders of the Note, the full and prompt payment and performance of the following
(hereinafter collectively referred to as the “Obligations”): all loans, advances, debts,
liabilities, indebtedness, obligations, covenants, undertakings, promises, agreements, and duties
now or hereafter owing to Bank or any affiliate of Citizens Republic Bancorp from Borrower of any
kind or nature whatsoever, present or future, whether arising by reason of an extension of credit,
opening of a letter of credit, loan, promissory note, guarantee, endorsement, indemnification,
agreement, undertaking, contract, rate management agreement, or in any manner whatsoever, whether
direct or indirect (including those acquired by assignment, participation, purchase, negotiation,
discount or otherwise), matured or unmatured, liquidated or unliquidated, primary or secondary,
absolute or contingent, joint or several, due or to become due, now existing or hereafter arising
and whether or not contemplated by Borrower or Bank on the date hereof, including, but not limited
to, the Note or the other Loan Documents, and all amendments, modifications, revisions,
supplements, substitutions, renewals, extensions or restatements thereof, and all principal,
interest, charges, expenses, costs, fees (including reasonable attorneys’ fees), indemnification
obligations and other sums of any kind thereunder or relating thereto whatsoever. Upon failure of
Borrower to pay or perform any of the Obligations when and as the same becomes due and payable and
the same is not made by Borrower within any applicable grace period, if any, Bank may, at its sole
option, accelerate the payment of the Obligations, all accrued interest and other charges payable
thereunder, in which event Guarantor shall pay to Bank, on demand, the entire amount of the
Obligations. Bank shall not be obligated to proceed against, or exhaust any other remedies it may
have under the Loan Documents or any other documents, or resort to any other security held by Bank,
or proceeding against any other guarantor, and Bank may, at its option, proceed directly and at
once, without notice, against Guarantor, to collect and recover the full amount of the liability
hereunder or any portion thereof. Any and all payments due hereunder shall be made in lawful money
of the United States of America at 000 X. Xxxxxxx Xxxxxx, Xxxxx, Xxxxxxxx 00000, or such other
address as Bank may from time to time designate.
2. Guarantor agrees to furnish to Bank (a) within sixty (60) days after the end of each
fiscal quarter and fiscal year, a copy of Guarantor’s Form 10-Q as filed with the U.S. Securities
and Exchange Commission for such fiscal quarter, and certified as complete and correct by the
principal financial officer of Guarantor; (b) within one hundred fifty (150) days after the end of
each fiscal year, a copy of Guarantor’s Form 10-K as filed with the U.S. Securities and Exchange
Commission for such fiscal year, and certified as complete and correct by the principal financial
officer of Guarantor; and (c) to promptly notify Bank of any pending or threatened litigation, the
outcome of which could have a material adverse effect on the assets, properties, finances or
prospects of Guarantor. Failure to comply with the requirements of this paragraph shall constitute
a default hereunder and under the Loan Documents.
3. Guarantor acknowledges that: Guarantor has a direct economic investment or interest in
Borrower, as a partner, shareholder, member, trust beneficiary, or otherwise; that Guarantor is
making this Guaranty in Guarantor’s corporate capacity; that Guarantor shall remain liable
hereunder whether or not Guarantor retains any financial interest in Borrower; and that
Guarantor has received sufficient consideration for the execution and delivery of this
Guaranty in favor of Bank.
Page 2 of 7
4. The obligations of Guarantor under this Guaranty shall be irrevocable, absolute and
unconditional, and joint and several with all other guarantors of the Loan and shall remain in full
force and effect until the principal balance of the Note, all accrued but unpaid interest on the
Note, and all other Obligations referred to above in Section 1, shall have been irrevocably and
indefeasibly paid in full and Bank has no further obligation to make advances under the Note.
5. The obligations of Guarantor under this Guaranty shall not be affected, modified or
impaired upon the happening of any event, including, without limitation, any of the following,
whether or not with notice to or the consent of Guarantor:
(a) The amendment, modification, revision, supplement, substitution, renewal, extension or
restatement of any security given by Borrower to Bank to secure repayment of the indebtedness
hereby being guaranteed;
(b) The waiver, release or termination of any of the covenants, agreements or obligations of
Borrower under the Note or Borrower and/or any other guarantor or under any of the other Loan
Documents or the Obligations;
(c) The amendment, modification, revision, supplement, substitution, renewal, extension or
restatement (whether material or otherwise) of the Note, any other Loan Documents, the Obligations
or any obligation, covenant or agreement as set forth in the Note, in any of the other Loan
Documents or the Obligations;
(d) Any failure, omission, delay or lack on the part of Bank to enforce, assert or exercise
any right, power or remedy conferred upon it in this Guaranty, in the Note, in any of the other
Loan Documents or the Obligations, or any other acts or omissions on the part of Bank;
(e) The voluntary or involuntary liquidation, dissolution, sale or other disposition of all or
substantially all of the assets of Borrower or Guarantor, however effected, or receivership,
insolvency, bankruptcy, assignment for the benefit of creditors, reorganizations, arrangement,
composition with creditors or readjustment or other similar proceedings affecting Borrower,
Guarantor, any other guarantor, or any of the assets of Guarantor, or any allegation or contest of
the validity of this Guaranty, the Note, any of the other Loan Documents or the Obligations, or the
disaffirmance of the Note, any of the other Loan Documents or the Obligations in any such
proceeding;
(f) The invalidity, illegality or unenforceability of the Note, any of the other Loan
Documents or the Obligations; or of any provision of the Note, any of the other Loan Documents or
the Obligations;
(g) The existence, value or condition of any other security or guaranty, or failure by Bank to
perfect any lien against, or obtain any security for the Obligations or obtain any other guaranty
of the Obligations, or any action or the absence of any action by Bank in respect of such security
or guaranty (including, without limitation, the release of any such security or guaranty); or
Page 3 of 7
(h) Any other event or action that would, in the absence of this clause, result in the release
or discharge by operation of law of Guarantor from the performance or observance of any obligation,
covenant or agreement contained in this Guaranty.
6. If after receipt of any payment of all or any part of the Obligations, Bank is for any
reason compelled to surrender such payment to any person or entity, because such payment is
determined to be void or voidable as a preference, impermissible setoff, diversion of trust funds
or for any other reason (including, without limitation, insolvency, bankruptcy, liquidation or
reorganization of Borrower or any other guarantor) then to the extent of that payment, the
Obligations shall be revived and the obligations of Guarantor under this Guaranty shall be
continued in effect without reduction or discharge for that payment, and this Guaranty shall
continue in full force notwithstanding any contrary action which may have been taken by Bank in
reliance upon such payment, and any such contrary action so taken shall be without prejudice to any
Bank’s rights under this Guaranty and shall be deemed to have been conditioned upon such payment
having become final, irrevocable and indefeasible.
7. No setoff, counterclaim or reduction, no diminution of an obligation, and no defense of any
kind or nature that Guarantor has or may have against Borrower, Bank or any other guarantor shall
affect, modify or impair the obligations hereunder of Guarantor.
8. For so long as this Guaranty remains in effect, Guarantor shall not have, and Guarantor
hereby expressly waives, releases and discharges during such time, any and every right of
exoneration, subrogation, contribution, reimbursement and indemnity whatsoever, and any and every
right of recourse to security for the debts and Obligations guaranteed hereby, whether against
Borrower, any other guarantor or otherwise, until the Obligations have been irrevocably and
indefeasibly paid in full. Guarantor hereby indemnifies Bank and agrees to defend and hold
harmless Bank from and against the loss, mitigation, subordination or other consequences adverse to
Bank by reason of this Guaranty being challenged as a preference or suffering any other subjugation
under any bankruptcy or other law, whether state or federal, affecting debtors, creditors and/or
the relationship between and among them. Without limiting the generality of the foregoing, for so
long as this Guaranty remains in effect, any and all debts and obligations of Borrower to Guarantor
(or any other guarantor) whether past, present or future are hereby waived, satisfied and
discharged until the Obligations have been irrevocably and indefeasibly paid in full and Bank has
no further obligations to make advances under the Note.
9. Guarantor hereby expressly waives notice in writing or otherwise from Bank of Bank’s
acceptance of and reliance on this Guaranty. Guarantor agrees to pay and shall be liable for all
costs, expenses and fees, including all reasonable attorneys’ fees, which may be incurred by Bank
in enforcing or attempting to enforce this Guaranty against Guarantor, whether the same shall be
enforced by suit or otherwise and except as may be limited by law or judicial order or decision
entered in an action to seek recovery of such costs, expenses and fees. Guarantor hereby waives
presentment, demand, protest, notice of non-payment, notice of dishonor and all suretyship
defenses.
10. This Guaranty shall bind Guarantor and Guarantor’s successors and assigns, and shall inure
to the benefit of Bank and its successors and assigns.
Page 4 of 7
11. If any clause or provision of this Guaranty is held illegal, invalid or unenforceable by
any court, this Guaranty shall be construed and enforced as if such illegal, invalid or
unenforceable clause or provision had not been contained herein.
12. No remedy herein conferred upon or reserved to the Bank is intended to be exclusive of
any other available remedy or remedies, but each and every such remedy shall be cumulative and
shall be in addition to every other remedy given under this Guaranty or now or hereafter existing
at law or in equity or by statute. No delay or omission to exercise any right or power accruing
upon any default, omission or failure of performance hereunder shall impair any such right or power
or shall be construed to be a waiver thereof, but any such right and power may be exercised from
time to time and as often as may be deemed expedient by the Bank. In order to entitle the Bank to
exercise any remedy reserved to it in this Guaranty, it shall not be necessary to give any notice,
other than such notice as may be herein expressly required. If any provision contained in this
Guaranty should be breached by any party and thereafter duly waived by the other party, such waiver
shall be limited to the particular breach so waived and shall not be deemed to waive any other
breach hereunder. No waiver, amendment, release or modification of this Guaranty shall be
established by conduct, custom or course of dealing, but solely by an instrument in writing duly
executed by the parties hereto. This Guaranty may be amended only by a written agreement signed by
the parties hereto and accepted by the Bank.
13. Guarantor hereby authorizes any attorney at law to appear in any court of record in the
State of Ohio, or in any other state or territory of the United States after the obligations of
Guarantor become due, whether by lapse of time, acceleration of maturity or otherwise, waive the
issuance and service of process, admit the maturity of the obligations of Guarantor, confess
judgment against Guarantor in favor of any holder of this Guaranty for the amount then appearing
due, together with interest thereon and costs of suit, and thereupon to release all errors and
waive all rights of appeal and stay of execution. Guarantor expressly (a) waives a conflict of
interest as to any attorney retained by Bank to confess judgment against Guarantor upon this
Guaranty, and (b) consents to the attorney retained by Bank receiving a legal fee from Bank for
legal services rendered for confessing judgment against Guarantor, upon this Guaranty. A copy of
this Guaranty, certified by Bank, may be filed in each such proceeding in place of filing the
original as a warrant of attorney. The authority and power to appear for and enter judgment
against Guarantor, additional exercises thereof or any imperfect exercise thereof, shall not be
extinguished by any judgment entered pursuant thereto.
14. This Guaranty is a continuing and unconditional guaranty of payment and performance and
not of collection and that Guarantor’s obligations hereunder shall be primary and absolute.
Accordingly, any payments made on the Obligations will not discharge or diminish Guarantor’s
obligations and liability under this Guaranty for any remaining and succeeding obligations even
when all or part of the outstanding obligations may be a Zero ($0.00) balance from time to time.
This Guaranty shall be deemed to be a contract made under the laws of the State of Ohio and for all
purposes shall be governed by and construed in accordance with the laws of said State. Guarantor
represents and warrants that this Guaranty is being executed and delivered in the State of Ohio. If
Bank holds one or more guaranties, or hereafter receives additional guaranties from Guarantor,
Bank’s rights under all guaranties shall be cumulative. This Guaranty shall not affect or
invalidate any such other guaranties. Guarantor’s liability will be Guarantor’s aggregate liability
under the terms of this Guaranty and any such other unterminated guaranties. Guarantor shall
not sell, assign, transfer, pledge, hypothecate, encumber or otherwise dispose of in any manner
Page 5 of 7
whatsoever, any right, title or interest of Guarantor, in whole or in part, in the capital or
membership interest of Borrower or any proceeds, distributions or earnings with respect thereto.
15. Guarantor hereby represents and warrants to Bank that:
(a) Guarantor is a corporation duly organized, validly existing and in full force and effect
under the laws of the State of Montana; that Guarantor has the right, power and authority to
execute, deliver and perform this Guaranty; and that Guarantor has been authorized to enter into
this Guaranty by all necessary and proper corporate action;
(b) this Guaranty constitutes the legal, valid and binding obligation of Guarantor
enforceable in accordance with its terms, except as enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors’
rights generally and by the availability of equitable remedies;
(c) the execution, delivery and performance of this Guaranty will not violate any provision
of any applicable law or material contractual obligation of Guarantor and will not result in the
creation or imposition of any lien upon or with respect to any property or revenues of Guarantor;
and that the execution, delivery and performance of this Guaranty will not violate any provision of
Guarantor’s Articles of Incorporation, Code of Regulations or By-laws, or any other organization or
governing documents of Guarantor;
(d) no consent or authorization of, filing with, or other act by or in respect of, any
arbitrator or governmental authority and no consent of any other person (including, without
limitation, any shareholder, director, officer or creditor of Guarantor), is required in connection
with the execution, delivery, performance, validity or enforceability of this Guaranty;
(e) no actions, suits or proceedings before any court, tribunal, arbitrator or governmental
authority are pending or, to the knowledge of Guarantor, threatened by or against Guarantor or
against any of its properties or with respect to this Guaranty or any of the transactions
contemplated hereby; and
(f) Guarantor shall preserve and maintain its corporate existence, rights, franchises and
privileges in the jurisdiction of its organization or in any other jurisdiction required by law.
16. GUARANTOR HEREBY, AND BANK BY ITS ACCEPTANCE HEREOF, EACH WAIVES THE RIGHT OF A JURY TRIAL
IN EACH AND EVERY ACTION ON THIS GUARANTY OR ANY OF THE OTHER LOAN DOCUMENTS, IT BEING ACKNOWLEDGED
AND AGREED THAT ANY ISSUES OF FACT IN ANY SUCH ACTION ARE MORE APPROPRIATELY DETERMINED BY THE
COURTS. FURTHER, GUARANTOR HEREBY CONSENTS AND SUBJECTS GUARANTOR TO THE JURISDICTION OF COURTS OF
THE STATE OF OHIO AND, WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, TO THE VENUE OF SUCH
COURTS IN ANY COUNTY IN WHICH BANK IS LOCATED.
17. Except for a notice required under applicable law to be given in another manner, any
notice or other communication required or permitted to be given by this Guaranty or the other Loan
Documents or by applicable law shall be in writing and shall be deemed received (a) on the
date delivered, if sent by hand delivery to the address set forth on the first page of this Guaranty, (b)
Page 6 of 7
three (3) business days following the date deposited in U.S. mail, certified or
registered, with return receipt requested, or (c) one (1) business day following the date deposited
with Federal Express or other nationally recognized overnight carrier, and in each case delivered
to the address set forth on the first page of this Guaranty. Either party may change its address
to another single address by notice given as herein provided, except any change of address notice
must be actually received in order to be effective. Notwithstanding the foregoing, routine
communications such as statements, invoices, copies of documents, and the like, may be sent by
First Class U.S. Mail.
18. If the Loan is guaranteed by more than one guarantor, whether in this instrument or by
other instruments, the obligations of Guarantor under this Guaranty shall be joint and several with
all other guarantors.
IN WITNESS WHEREOF, Guarantor has caused this Guaranty to be executed and delivered to Bank in
the State of Ohio 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., a Montana corporation |
||||
| By: | /s/ Xxxxx X. Xxxxxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxxxxx | |||
| Title: | President and Chief Operating Officer | |||
Page 7 of 7
