GUARANTEE FEE, INDEMNIFICATION, AND SECURITY AGREEMENT
EXHIBIT
10.14
GUARANTEE FEE, INDEMNIFICATION, AND
SECURITY AGREEMENT
This
GUARANTEE FEE AND INDEMNIFICATION AGREEMENT
(as amended from time to time, this "Agreement"), dated as
of July __, 2008, is made and entered into by and between GLOBAL DIVERSIFIED INDUSTRIES,
INC., a corporation organized and existing under the laws of the State of
Nevada (the "GDIV"), GLOBAL MODULAR, INC., a
corporation organized and existing under the laws of the State of Nevada
(“GMI”), LUTREX ENTERPRISES,
INC., a corporation organized and existing under the laws of
the State of California (individually, “LUTREX”, and
collectively with GDIV and GMI, the “Companies”), and
XXXXXXX XXXXXXXX, an
individual, and XXXXXX
XXXXXXX, an individual (individually, a “Guarantor” and
collectively, the “Guarantors”).
W I T N E
S S E T H:
--------------------
WHEREAS,
the Companies have obtained, from time to time, certain performance and surety
bonds and other third party loans in the aggregate maximum principal amount of
up to $10,000,000 Dollars (the "Obligations");
and
WHEREAS,
to provide additional credit support to the Bank for the payment of the
Obligations, the Guarantors have, from time to time, guaranteed repayment of the
Obligations and related Matters (collectively, the “Guarantees”);
and
WHEREAS,
in consideration of the Guarantors entering into and continuing the Guarantees,
GDIV has agreed to issue to the Guarantors the Warrants (as defined below);
and
NOW,
THEREFORE, in consideration of the foregoing premises and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
ARTICLE
I
ISSUANCE OF WARRANTS.
Section
1.1 Issuance of Warrants. In
consideration of the continuation by the Guarantors
of Guarantees existing as of the date hereof, and in consideration
for the Guarantors agreeing to enter into and continue guarantees of performance
and surety bonds which may be necessary for the operation of GDIV’s business in
the future, GDIV, on even date herewith, shall issue to each Guarantor a common
stock purchase warrant certificate, in the form attached hereto as Exhibit
A.
ARTICLE
II
INDEMNIFICATION AND
SECURITY
2.1 Indemnification by
Companies. Companies
agree to defend, indemnify and hold harmless the Guarantors and shall reimburse
the Guarantors for, from and against each claim, loss, liability, cost and
expense (including without limitation, interest, penalties, costs of preparation
and investigation, and the reasonable fees, disbursements and expenses of
attorneys, accountants and other professional advisors) (collectively, “Losses”) directly or
indirectly relating to, resulting from or arising out of the
Guarantees.
2.2 Security. To secure
the obligation set forth in Section 2.1 above, the Companies, jointly and
severally, hereby grant to Guarantors a security interest in all “ Collateral”
as defined below. As used in this Agreement, “Collateral” means all
personal property of the Companies, whether presently owned or existing or
hereafter acquired or coming into existence, wherever situated, and all
additions and accessions thereto and all substitutions and replacements thereof,
and all proceeds, products and accounts thereof, including, without limitation,
all proceeds from the sale, lease, license, or transfer of the Collateral and of
insurance covering the same and of any tort claims in connection therewith,
including: (i) all goods, including, without limitations, (A) all machinery,
equipment, computers, motor vehicles, trucks, tanks, boats, ships, appliances,
furniture, special and general tools, fixtures, test and quality control devices
and other equipment of every kind and nature and wherever situated, together
with all documents of title and documents representing the same, all additions
and accessions thereto, replacements therefore, all parts therefore, and all
substitutes for any of the foregoing and all other items used and useful in
connection with any Companies’ businesses and all improvements thereto; and (B)
all inventory; (ii) all contract rights and other general intangibles,
including, without limitation, all partnership interests, membership interests,
stock or other securities, rights under any of the organizational documents,
licenses, distribution and other agreements, computer software (whether
“off-the-shelf”, licensed from any third party or developed by any of the
Companies), computer software development rights, leases, franchises, customer
lists, quality control procedures, grants and rights, goodwill, trademarks,
service marks, trade styles, trade names, patents, patent applications,
copyrights, and income tax refunds; (iii) all accounts, together with
all instruments, all documents of title representing any of the foregoing, all
rights in any merchandising, goods, equipment, motor vehicles and trucks which
any of the same may represent, and all right, title, security and guaranties
with respect to each account, including any right of stoppage in transit; (iv)
all documents, letter-of-credit rights, instruments and chattel paper; (v) all
commercial tort claims; (vi) all deposit accounts and all cash (whether or not
deposited in such deposit accounts); (vii) all investment property; (viii) all
supporting obligations; and (ix) all files, records, books of account, business
papers, and computer programs; and (x) the products and proceeds of all of the
foregoing Collateral set forth in clauses (i)-(ix) above.
2.3 Procedure. The
Guarantors shall promptly notify the indemnifying party of any claim, demand,
action or proceeding for which indemnification will be sought under Sections 2.1
of this Agreement, and, if such claim, demand, action or proceeding is a third
party claim, demand, action or proceeding, the indemnifying party will have the
right at its expense to assume the defense thereof using counsel reasonably
acceptable to the indemnified party. The indemnified party shall have the right
to participate, at its own expense, with respect to any such third party claim,
demand, action or proceeding. In connection with any such third party claim,
demand, action or proceeding, the Guarantors and the Companies shall cooperate
with each other and provide each other with access to relevant books and records
in their possession. No such third party claim, demand, action or proceeding
shall be settled without the prior written consent of the indemnified party,
which shall not be unreasonably withheld.
ARTICLE
III
MISCELLANEOUS
3.1 Governing Law. This
Agreement and the rights of the parties hereunder shall be governed in all
respects by the laws of the State of California wherein the terms of this
Agreement were negotiated.
3.2 Amendment. This
Agreement may not be amended, discharged or terminated (or any provision hereof
waived) without the written consent of the Companies and the
Guarantors.
3.3 Successors and
Assigns. Except as otherwise expressly provided herein, the provisions
hereof shall inure to the benefit of, and be binding upon and enforceable by and
against, the successors, assigns, heirs, executors and administrators of the
parties hereto.
3.4 Notices, etc. All
notices, demands or other communications given hereunder shall be in writing and
shall be sufficiently given if delivered either personally or by a nationally
recognized courier service marked for next business day delivery or sent in a
sealed envelope by first class mail, postage prepaid and either registered or
certified, addressed as follows:
|
(a)
if to the Companies:
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0000
Xxxxxxx Xxxxx
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Xxxxxxxxxx,
XX 00000
|
|
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with
a copy to:
|
Xxxxxx
X. Xxxxxxxx
|
|
Xxxx
Xxxxxx Xxx 0000
|
|
|
Xxxxxxx,
XX 00000
|
|
|
(b)
if to Manandic:
|
000
Xxxxx Xxxx
|
|
Xxxxxx,
XX 00000
|
|
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(c)
if to Xxxxxxx:
|
0000
Xxxxxxxxxx Xxxxx
|
|
Xxxxxx,
XX 00000
|
3.5 Titles and Subtitles.
The titles of the articles, sections and subsections of this Agreement are for
convenience of reference only and are not to be considered in construing this
Agreement.
3.5 Counterparts. This
Agreement may be executed in any number of counterparts, each of which shall be
an original, but all of which together shall constitute one
instrument.
IN WITNESS WHEREOF, the parties hereto
have duly executed this Guarantee Fee and Indemnification Agreement, as of the
day and year first above written.
COMPANIES:
GLOBAL
DIVERSIFIED INDUSTRIES, INC.
By:
_____________________________________
Xxxxxxx
Xxxxxxxx, Chief Executive Officer
GLOBAL
MODULAR, INC.
By:
_____________________________________
LUTREX
INDUSTRIES, INC.
By:
_____________________________________
GUARANTORS:
_______________________________________
Xxxxxxx
Xxxxxxxx, an individual
_______________________________________
Xxxxxx
Xxxxxxx, an individual
