Exhibit 10.3
CONTINUING GUARANTEE
1. Absolute Guarantee. For valuable consideration
and to induce FARM CREDIT SERVICES OF AMERICA, FLCA ("Farm
Credit")to extend a loan or loans to GPRE SHENANDOAH, LLC,
Shenandoah, Iowa ("Bon-ower"), of which ESSEX ELEVATOR, INC.
("Guarantor") is wholly owned subsidiary, Guarantor unconditionally
and absolutely guarantees and promises to pay to Farm Credit, or
order, on demand, in lawful money of the United States, any and all
Indebtedness of Bon-ower to Farm Credit; provided that the
liability of the Guarantor hereunder shall be limited to the
maximum amount of the Indebtedness which Guarantor may guarantee
without rendering this Guarantee void or voidable under any
applicable fraudulent conveyance or fraudulent transfer law. The
word "Indebtedness" is used herein in its more comprehensive sense,
and includes any and all advances, debts, obligations and
liabilities of Borrower, including but not limited to all
principal, interest, fees, expenses and stock subscription charges,
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, and whether Bon-ower may be liable individually or
jointly with others, or whether recovery upon such Indebtedness may
be or hereafter become barred by any statute of limitation, or
whether such Indebtedness may be or hereafter become otherwise
unenforceable.
2. Continuing Guarantee. No termination by
Guarantor shall be effective except by notice sent to Farm Credit
by registered mail naming a termination date effective not less
than ninety (90) days after the receipt of such notice by. Farm
Credit No such termination shall affect (i) any Indebtedness of
Borrower incurred prior to the effective date of termination or
(ii) any Indebtedness for interest, fees, expenses and/or stock
subscription charges incurred after termination related to any
Indebtedness outstanding on the effective date of termination.
3. Guarantee of Payment. This continuing guarantee
is a guarantee of payment and not of collection. The obligations
hereunder are joint and several, and independent upon the
Indebtedness of Borrower, and a separate action or actions may be
brought and prosecuted against Guarantor whether action is brought
against Bon-ower or whether Bon-ower be joined in any such action
or actions; and Guarantor waives the benefit of any statutes of
limitations affecting its liability hereunder or the enforcement
thereof.
4. Authorities of. Farm Credit Guarantor
authorizes Farm Credit, without notice or demand and without
affecting liability hereunder, from time to time, to (a) grant
additional credit to Borrower, and renew, compromise, extend,
accelerate or otherwise change the time for payment of, or
otherwise change the terms of, the Indebtedness or any part
thereof, including increase or decrease of the rate of interest
thereon; (b) take and hold security for the payment of this
Guarantee or the Indebtedness guaranteed, and exchange, enforce,
waive and release any such security; (c) apply such security and
direct the order or manner of sale thereof as Farm Credit in its
discretion may determine; and (d) release or substitute anyone or
more endorsers or guarantors of the Indebtedness.
5. Waivers. Guarantor waives any right to
require, Farm Credit as a condition to proceeding against
Guarantor, to (a) proceed against Borrower or any other person;
(b) proceed against or exhaust any security held from Borrower
or Guarantor; or (c) pursue any other remedy in Farm Credit's
power whatsoever. Guarantor waives any defense arising by reason
of any disability or other defense or counter-claim that the
Borrower may assert on the underlying debt, including but not
limited to failure of consideration, breach of warranty, fraud,
statute of frauds, bankruptcy, statute of limitations, lender
liability, accord and satisfaction, and usury or by reason of
the cessation from any cause whatsoever of the liability of
Borrower. Guarantor waives the pleading or assertion of any
defense based on the failure of Farm Credit to keep Guarantor
informed of the financial and business status of Borrower, it
being expressly acknowledged by Guarantor that it is Guarantor's
responsibility to keep so informed, Until all Indebtedness of
Borrower to Farm Credit shall have been paid in full, Guarantor
shall have no right of subrogation, and waives any right to
enforce any remedy which Farm Credit now has, or may hereafter
have against Borrower, and waives any benefit of, and any right
to participate in any security now or hereafter held by Farm
Credit. Guarantor waives all setoffs and counterclaims, and all
presentments, demands for performance, notices of
nonperformance, protests, notices of dishonor, notices of sale
of foreclosure of any security for the payment of the
Indebtedness, and notices of acceptance of this Guarantee and of
the existence, creation, or incurring or new or additional
Indebtedness.
GUARANTOR WARRANTS AND AGREES THAT EACH OF THE WAIVERS
SET FORTH IN THIS AGREEMENT 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 SUCH WAIVER IS DETERMINED TO BE
CONTRARY TO ANY APPLICABLE LAW OR PUBLIC POLICY, SUCH WAIVER SHALL
BE EFFECTIVE ONLY TO THE EXTENT PERMITTED BY LAW OR PUBLIC
POLICY.
6. Lien; Right of Setoff. In addition to all liens
upon, and all rights of setoff against the monies, securities or
othe
