ex10-4guaranty






UNLIMITED COMMERCIAL CORPORATE GUARANTY  OF APPLIED BLOCKCHAIN, INC.  2022  APLD Hosting, LLC, a Nevada limited liability company, registered in North  Dakota as a foreign limited liability company, 3811 Turtle Creek Blvd., Ste. 2125,  Dallas, TX 75219 (hereinafter referred to as "Borrower");  Applied Blockchain, Inc., a Nevada corporation, 38 I I Turtle Creek Blvd., Ste.  2125, Dallas, TX 75219 (hereinafter referred to as "Guarantor");  Starion Bank, 2754 Brandt Dr. S., Fargo, ND 58104-8806 (hereinafter referred to  as "Bank").  Date: July 25, 2022  THIS IS THE COMMERCIAL CORPORATE GUARANTY OF PAYMENT  OF APPLIED BLOCKCHAIN, INC.  1. AMOUNT OF GUARANTY UNLIMITED. The amount of this Guaranty shall be  unlimited as to the Indebtedness of Borrower identified above, owed to the Bank, as such  Indebtedness is identified and defined in this Guaranty, including principal, interest, costs and  expenses as defined in this Guaranty.  2. ABSOLUTE, UNCONDITIONAL & CONTINUING GUARANTY. For good and valuable  consideration, the above-named Guarantor absolutely, unconditionally and on a continuing basis  guarantees and promises to pay to the above named Starion Bank or its order, in legal tender of  the United States of America, an amount equal to the Amount of Guaranty pursuant to Section I  above for default on any or all of the Loans identified in this Guaranty and other indebtedness  guaranteed herein.  3. MAXIMUM LIABILITY. The maximum liability of Guarantor under this Guaranty shall not  exceed at any one time a sum equal to the total amount of money owed to the Bank by the Borrower  and required by the Bank to make it whole. If Bank presently 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 (unless specifically provided below to the contrary) 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.  4. BORROWER INDEBTEDNESS. The indebtedness guaranteed by this Guaranty includes  collectively any and all Borrower's indebtedness to Bartle and is used in the most comprehensive  sense and means and includes any and all Borrower's liabilities, obligations and debts to Bank,  





 






now existing or hereafter incurred or created, including, without limitation, the following Loan  made by Bank to Borrower identified below, effective the same date as this Guaranty:  $15,000,000.00 Real Estate Term Loan.  Together with all other loans if any, advances, interest, costs, debts, overdraft indebtedness and  liabilities of Borrower, and any present or future judgments against Borrower, plus all of Bank's  costs, expenses, and to the extent allowed by law reasonable attorney's fees incurred in connection  with or relating to (A) the collection of the indebtedness, (B) the collection and sale of any  collateral for the indebtedness or this Guaranty, or (C) the enforcement of this Guaranty  (attorney's fees include, without limitation, reasonable attorney's fees whether or not there is a  lawsuit, and if there is a lawsuit, any fees and costs for trial and appeal); and whether any such  indebtedness is voluntarily or involuntarily incurred, due or not due, absolute or contingent,  liquidated or unliquidated, detennined or undetern1ined; whether Borrower may be liable  individually or jointly with others, or primarily or secondarily, or as guarantor or surety; whether  recovery on the indebtedness may be or may become barred or unenforceable against Borrower  for any reason whatsoever; and whether the indebtedness arises from transactions which may be  voidable on account of infancy, insanity, ultra vires, or otherwise.  5. DURATION OF GUARANTY. This Guaranty will take effect when received by Bank without  the necessity of any acceptance by Bank, or any notice to Guarantor or to Borrower, and will  continue in full force until all indebtedness incurred or contracted before receipt by Bank of any  notice of revocation shall have been fully and finally paid and satisfied and all of Guarantor's other  obligations under this Guaranty shall have been performed in full. If Guarantor elects to revoke  this Guaranty, Guarantor may only do so in writing. Guarantor's written notice of revocation  must be mailed to Bank, by certified mail, at Bank's address listed above or such other place as  Bank may designate in writing. Written revocation of this Guaranty will apply only to advances  or new indebtedness created after actual receipt by Bank of Guarantor's written revocation. For  this purpose and without limitation, the tern1 "new indebtedness" does not include indebtedness  which at the time of notice ofrevocation is contingent, unliquidated, undetennined or not due and  which later becomes absolute, liquidated, determined or due. This Guaranty will continue to bind  Guarantor for all indebtedness incurred by Borrower or committed by Bank prior to receipt of  Guarantor's written notice of revocation, including any extensions, renewals, substitutions or  modifications of the indebtedness. All renewals, extensions, substitutions, and modifications of  the indebtedness granted after Guarantor's revocation, are contemplated under this Guaranty and  specifically will not be considered to be new indebtedness. Release of any other guarantor or  termination of any other guaranty of the indebtedness shall not affect the liability of Guarantor  under this Guaranty. A revocation Bank receives from any one or more Guarantors shall not affect  the liability of any remaining Guarantors under this Guaranty.  6. GUARANTOR'S AUTHORIZATION TO BANK: Guarantor authorizes Bank, either before  or after revocation hereof, without notice or demand and without lessening Guarantor's  liability under this Guaranty, from time to time: (A) prior to revocation as set forth above, to  make one or more additional secured or unsecured loans to Borrower, to extend additional credit  to Borrower; (B) to alter, compromise, renew, extend, accelerate, other otherwise change one or  more times the time of payment or other terms of the indebtedness or any part of the indebtedness,  including increases and decreases of the rate of interest on the indebtedness; extensions may be  2  





 






repeated and may be for longer than the original Loan term; (C) to take and hold security and  mortgage, with this Guaranty or the indebtedness, and exchange, enforce, waive, subordinate, fail  or decide not to perfect, and release any such security and, with or without the substitution of new  collateral; (D) to release, substitute, agree not to sue, or deal with any one or more of Borrower's  sureties, endorsers, or other guarantors on any terms or in any manner Bank may choose; (E) to  determine how, when and what application of payments and credits shall be made on the  indebtedness; (F) to apply such security and direct the order or manner of sale thereof, including  without limitation, any non-judicial sale permitted by the tenns of the controlling security  agreement or mortgage, as Bank in its discretion may detennine; (G) to sell, transfer, assign or  grant participations in all or any part of the indebtedness; and (H) to assign or transfer this Guaranty  in whole or in part.  7. GUARANTOR'S REPRESENTATIONS AND WARRANTIES. Guarantor represents and  WatTants to Bank that (A) no representations or agreements of any kind have been made to  Guarantor which would limit or qualify in any way the terms of this Guaranty; (B) this Guaranty  is executed at Borrower's request and not at the request of Bank; (C) Guarantor has full power,  1ight and authority to enter into this Guaranty; (D) the provisions of this Guaranty do not conflict  with or result in a default under any agreement or other instrument binding upon Guarantor and do  not result in a violation of any law, regulation, court decree or order applicable to Guarantor; (E)  Guarantor has not and will not, without the prior written consent of Bank, sell, lease, assign,  encumber, hypothecate, transfer, or othe1wise dispose of all or substantially of all Guarantor•s  assets, or any interest therein, otherwise than in the ordinary course of business or on terms  materially less favorable than would be obtained in an arms-length transaction; (F) upon Bank's  request, Guarantor will provide to Bank financial and credit information in fonn acceptable to  Bank, and all such financial infmmation which cmTently has been, and all future financial  information which will be provided to Bank is and will be true and correct in all material respects  and fairly present Guarantor's financial condition as of the dates the financial information is  provided; (G) no material adverse change has occurred in Guarantor's financial condition since  the date of the most recent financial statements provided to Bank and no event has occurred which  may materially adversely affect Guarantor's financial condition; (H) no litigation, claim,  investigation, administrative proceeding or similar action (including those for unpaid taxes)  against Guarantor is pending or, to Guarantor's knowledge, threatened; (I) Bank has made no  representation to Guarantor as to the creditworthiness of Borrower; (J) Guarantor has established  adequate means of obtaining from Borrower on a continuing basis infonnation regarding such  Borrower's financial condition. Guarantor agrees to keep Borrower adequately infonned of such  facts, events, or circumstances which might in any way affect Guarantor's risks under this  Guaranty, and Guarantor further agrees that, absent a request for information, Bank shall have no  obligation to disclose to Guarantor any information or documents acquired by Bank in the course  of its relationship with Borrower.  8. GUARANTOR'S WAIVERS. Except as prohibited by applicable law, Guarantor waives any  right to require Bank (A) to continue lending money or to extend other credit to Borrower; (B) to  make any presentment, protest, demand, or notice of any kind, including notice of any nonpayment  of the indebtedness or of any nonpayment related to any collateral, or notice of any action or non­ action on the part of Borrower, Bank, any surety, endorser, or other guarantor in connection with  the indebtedness or in connection with the creation of new or additional loans or obligations; (C)  3  





 






to resort for payment or to proceed directly or at once against any person, including Borrower or  any other guarantor; (D) to proceed directly against or exhaust any collateral held by Bank from  B01Tower, any other guarantor, or any other persons; (E) to give notice of the terms, time, and  place of any public or private sale of personal property security held by Bank from Borrower or to  comply with any other applicable and waivable provisions of the Uniform Commercial Code; (F)  to pursue any other remedy within Bank's power; or (G) to commit any act or omission of any  kind, or at any time, with respect to any matter whatsoever.  Guarantor also waives any and all rights or defenses arising by reason of (A) any "one action" or  "anti-deficiency" law which may prevent Bank from bringing any action, including a claim for  deficiency, against Guarantor, before or after Bank's commencement or completion of any  foreclosure action, either judicially or by exercise of a power of sale; (B) any election of remedies  by Bank which destroys or otherwise adversely affects Guarantor's subrogation rights or  Guarantor's rights to proceed against Borrower for reimbursement, including without limitation,  any loss of rights Guarantor may suffer by reason of any law limiting, qualifying, or discharging  the indebtedness; ( C) any disability or other defense of Borrower, of any other guarantor, or of any  other person, or by reason of cessation of Borrower's liability from any cause whatsoever, other  than payment in full in legal tender, of the indebtedness; (D) any right to claim discharge of the  indebtedness on the basis of unjustified impainnent of any collateral for the indebtedness; (E) any  statute of limitations, if at any time any action or suit bought by Bank against Guarantor is  commenced, there is outstanding indebtedness of Borrower to Bank which is not barred and  perfonnance of the indebtedness. If payment is made by Borrower, whether voluntarily or  otherwise, or by any third party, on the indebtedness and thereafter Bank is forced to remit the  amount of that payment to such B01Tower's trustee in bankruptcy or to any similar person under  any federal or state bankruptcy law or law for the relief of debtors, the indebtedness shall be  considered unpaid for the purpose of the enforcement of this Guaranty.  Guarantor further waives and agrees not to assert or claim at any time any deduction to the amount  guaranteed under this Guaranty for any claim of setoff, counterclaim, counter demand, recoupment  or similar right, whether such claim, demand or right may be asserted by Borrower, and Guarantor,  or both.  9. GUARANTOR'S UNDERSTANDING WITH RESPECT TO WAIVERS. Guarantor  warrants and agrees that each of the waivers set forth above 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.  10. RIGHT OF SETOFF. To the extent permitted by applicable law, Bank reserves the right of  setoff in all Guarantor's deposit accounts with Bank (whether checking, savings, or some other  account). This includes all accounts Guarantor holds jointly with someone else and all accounts  Guarantor may open in the future. However, this does not include any IRA or Keogh accounts, or  any trust accounts for which setoffwould be prohibited by law. Guarantor authorizes Bank, to the  extent pennitted by applicable law, to hold these funds if there is a default, and Bank may apply  the funds in these accounts to pay what Guarantor owes under the terms of this Guaranty.  4  





 






11. SUBORDINATION OF BORROWER'S DEBTS TO GUARANTOR. Guarantor agrees  that the indebtedness of Bo1TOwer to Banlc, whether now or hereafter created, shall be superior to  any claim that Guarantor may now have or hereafter acquire against Borrower, whether or not  Borrower becomes insolvent. Guarantor hereby expressly subordinates any claim Guarantor may  have against Borrower, upon ru1y account whatsoever, to any claim that Bru1k may now to hereafter  have against Borrower. In the event of insolvency and consequent liquidation of the assets of  Borrower, through banlcruptcy, by an assignment for the benefit of creditors, by voluntary  liquidation, or otherwise, the assets of Borrower applicable to the payment of the claims of both  Bank and Guarantor shall be paid to Banlc and shall be first applied by Bank to the indebtedness  of Borrower to Bank. Guarantor does hereby assign to Bank all claims which it may have or  acquire against Borrower or against any assignee or trustee in bankrnptcy of Borrower; provided  however, that such assignment shall be effective only for the purpose of evidencing any debts or  obligations of Borrower to Guarantor shall be marked with a legend that the same are subject to  this Guaranty and shall be delivered to Bank. Guarantor agrees, and Banlc is hereby authorized, in  the name of Guarantor, from time to time to file financing statements and continuation statements  and to execute documents and to take such other actions as Ban]( deems necessary or appropriate  to perfect, preserve and enforce its rights under this Guaranty.  12. MISCELLANEOUS PROVISIONS. The following miscellaneous provisions are a part of  this Guaranty.  Amendments. This Guaranty, together with any Related Documents, constitutes the entire  understanding and agreement of tile parties as to the matters set forth in this Guaranty. No  alterations of or amendment to this Guaranty shall be effective unless given in writing and  signed by the party or parties sought to be charged or bound by the alteration or  amendment.  Attorney's Fees; Expenses. Guarantor agrees to pay upon demand all of Bank's costs and  expenses, including Banlc's reasonable attorney's fees unless prohibited by law and Bank's  legal expenses, incuned in connection with the enforcement of this Guaranty. Bank may  hire or pay someone else to help enforce this Guaranty, and Guarantor shall pay the costs  and expenses of such enforcement. Costs and expenses include Bank's reasonable  attorney's fees unless prohibited by law and legal expenses whether or not there is a  lawsuit, including reasonable attorney's fees and legal expenses for bankruptcy  proceedings (including efforts to modify or vacate any automatic stay or injunction),  appeals, and any anticipated post-judgment collection services. Guara11tor also shall pay  all court costs and such additional fees as may be directed by the court.  Caption Headings. Caption headings in this Guaranty are for convenience purposes only  and not to be used to interpret or define the provisions of this Guaranty.  Governing Law. This Guaranty shall be governed by and construed and enforced in  accordance with the laws of the State of North Dakota,provided, however, the Bank may at  its option, or when required by law, utilize the laws of other states and jurisdictions where the  Borrower, the Guarantor or other guarantors reside or in which they have assets, in order to  5  





 






enforce the provisions of this Guaranty, collect the balance of the indebtedness, and maximize  recovery so as to make Bank whole.  Choice of Venue. If there is a lawsuit, Guarantor agrees upon Bank's request to submit to  the jurisdiction of the courts of Stutsman County, State of North Dakota.  Integration. Guarantor further agrees that Guarantor has read and fully understands the  terms of this Guaranty; Guarantor has had the opportunity to be advised by Guarantor's  attorney with respect to this Guaranty; the Guaranty fully reflects Guarantor's intentions  and parol evidence is not required to interpret the terms of this Guaranty. Guarantor hereby  indemnifies and holds Bank hannless from all losses, claims, damages, and costs (including  Bank's attorney's fees unless prohibited by law) suffered or incurred by Bank as a result  of any breach by Guarantor of warranties, representations and agreements of this  paragraph.  Interpretation. The words "Guarantor," "Borrower," "Bank": include the heirs,  successors, assigns, and transferees of each of them. If a court finds that a provision of this  Guaranty is not valid or should not be enforced, that fact by itself will not mean that the  rest of this Guaranty will not be valid or enforced. Therefore, a court will enforce the rest  of the provisions of this Guaranty even if a provision of this Guaranty may be found to be  invalid or unenforceable. If Borrower and Guarantor are corporations, partnerships,  limited liability companies, or similar entities, it is not necessary for Bank to inquire into  the powers of Borrower or Guarantor or of the officers, directors, partners, managers, or  other agents acting or purporting to act on their behalf, and any indebtedness made or  created in reliance upon the professed exercise of such powers shall be guaranteed under  this Guaranty.  Notices. Any notice required to be given under this Guaranty shall be given in writing,  and, except for revocation notices by Guarantor shall be effective when actually delivered,  when actually received by telefacsimile (unless otherwise required by law), when deposited  with a nationally recognized overnight courier, or, if mailed, when deposited in the United  States mail, as first class, certified or unregistered mail postage prepaid, directed to the  addresses shown in the caption of this Guaranty instrument. All revocation notices by  Guarantor shall be in writing and shall be effective upon delivery to Bank as provided in  Section 5 of this Guaranty entitled "Duration Of Guaranty." Any party may change its  address for notices under this Guaranty by giving formal written notice to the other parties,  specifying that the purpose of the notice is to change the party's address. For notice  purposes, Guarantor agrees to keep Bank informed at all times of Guarantor's ctm-ent  address.  No Waiver by Bank. Bank shall not be deemed to have waived any rights under this  Guaranty unless such waiver is given in writing and signed by Bank. No delay or omission  on the part of Bank in exercising any right shall operate as a waiver of such right or any  other right. A waiver by Bank or a provision of this Guaranty shall not prejudice or  constitute a waiver of Bank's right otherwise to demand strict compliance with that  6  





 






provision or any other provision of this Guaranty. No prior waiver by Bank, nor any course  of dealing between Bank and Guarantor, shall constitute a waiver of any of Bank's rights  or of any of Guarantor's obligations as to any future transactions. Whenever the consent  of Bank is required under this Guaranty, the granting of such consent by Bank in any  instance shall not constitute continuing consent to subsequent instances where such consent  is required and in all case such consent may be granted or withheld in the sole discretion  of Bank.  Successors and Assigns. Subject to any limitations stated in this Guaranty on transfer of  Guarantor's interest, this Guaranty shall be binding upon and inure to the benefit of the  parties and their successors and assigns.  Waive Jury. Bank and Guarantor hereby waive the right to any jury trial in any action,  proceeding, or counterclaim brought by either Bank or Borrower against the other.  THE UNDERSIGNED GUARANTOR ACKNOWLEDGES HAVING READ ALL THE  PROVISIONS OF THIS GUARANTY AND AGREES TO ITS TERMS. IN ADDITION,  GUARANTOR UNDERSTANDS THAT THIS GUARANTY IS EFFECTIVE UPON  GUARANTOR'S EXECUTION AND DELIVERY OF THIS GUARANTY TO BANK AND  THAT THE GUARANTY WILL CONTINUE UNTIL TERMINATED IN THE MANNER  SET FORTH IN THE SECTION TITLED "DURATION OF GUARANTY". NO FORMAL  ACCEPTANCE BY BANK IS NECESSARY TO MAKE THIS GUARANTY EFFECTIVE.  THIS GUARANTY IS DATED AS FIRST ABOVE STATED.  [SIGNATURES AND ACKNOWLEDGEMENTS ON NEXT PAGE]  7  





 






CHIEF EXECUTIVE OFFICER  CORPORATE GUARANTY SIGNATURE AND ACKNOWLEDGEMENT  CORPORA TE GUARANTOR:  STATE OF.l::-0-c.s  COUNTY OF ~l\,G>  APPLIED BLOCKCHAIN, INC.  )  )ss  )  J  On this 22.v day of July, 2022 before me personally appeared Wes Cummins to me  known to be the Chief Executive Officer of Applied Blockchain, Inc., the corporation that is  described in, and that executed the foregoing instrument, and acknowledged to me t such  corporation executed the same.  (NOTARY SEAL)  MORc.Atl HAAS  r-1oury 10 .;133496 769  My Commission Ex;::1res  oecemoer 17. 2025  8  





 






CHIEF FINANCIAL OFFICER  CORPORA TE GUARANTY SIGNATURE AND ACKNOWLEDGEMENT  CORPORATE GUARANTOR:  STATE OFkxe-""  COUNTY OF~,\lc; >  APPLIED BLOCKCHAIN, INC.  )  )ss  )  avid Rench, Its Chief Financial Officer  .)._  On this 22~ day of July, 2022 before me personally appeared David Rench to me known  to be the Chief Financial Officer of Applied Blockchain, Inc., the corporation that is described  in, and that executed the foregoing instrument, and acknowledged to me that such corporation  executed the same. -,  (NOTARY SEAL)  ~ -,..'-"! "'ue MORGAN HAAS  f ' <~ Notary 10 #133496769  \i~:~;,,' My Commission Ex;::iires  Decemoer 17, 2025  -- ----~:~ .  /4z-"2~~r'-:-:~~~-- This document drafted by Zimney Foster P.C.. Attorneys  3100 S. Columbia Road, Ste. 200, Grand Forks, ND 5820 I  9