Cross-Corporate Continuing Guaranty and Security Agreement
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Borrower:
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Composite
Technology Corporation, a Nevada corporation
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Address:
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0000
XxXxx Xxxxxx, Xxxxxx, XX 00000
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Borrower:
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CTC
Cable Corporation, a Nevada corporation
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Address:
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0000
XxXxx Xxxxxx, Xxxxxx, XX 00000
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Borrower:
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CTC
Renewables Corporation, a Nevada corporation
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Address:
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0000
XxXxx Xxxxxx, Xxxxxx, XX 00000
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Guarantor:
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Stribog,
Inc., a Nevada corporation
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Address:
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0000
XxXxx Xxxxxx, Xxxxxx, XX 00000
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Date:
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April
12, 2010
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This Cross-Corporate Continuing
Guaranty and Security
Agreement (“Guaranty”) is executed by the above-named Borrowers under the
Loan Agreement (as defined herein) and the above-referenced Guarantor, an
Affiliate of the Borrowers, as guarantors in respect of each Borrower (except
for a guarantor in respect of itself) and any other persons now or
hereafter signatory as a guarantor to this Guaranty by execution of a
counterpart hereof or by an instrument of joinder and accession hereto
(jointly and severally, a “Guarantor” and, collectively, “Guarantor”), as
of the above date, in favor of PARTNERS FOR GROWTH II, L.P.
(“PFG”), whose address is 000 Xxxxxxx Xxxxxx, Xxx Xxxxxxxxx, XX 00000, with
respect to the Indebtedness (as defined herein) of each and all of the
above-named borrowers (jointly and severally, “Borrower”). Capitalized terms not
defined herein have the meaning set forth in the Loan Agreement (as defined
below).
1. Continuing Guaranty.
Each Guarantor hereby un-conditionally guarantees and promises to pay to PFG in
lawful money of the United States, and to perform for the benefit of PFG, all of
the Borrower’s present and future Indebtedness (as defined below) to PFG,
provided that no Guarantor shall be deemed to give a guaranty in respect of
itself.
2. “Indebtedness.” As
used in this Guaranty, the term "Indebtedness" means any and all Obligations (as
defined in the Loan and Security Agreement between PFG and each Borrower of even
date herewith (the “Loan Agreement”)) under or arising out of the Loan
Agreement, heretofore, now, or hereafter made, incurred, or created, whether
directly to PFG or
acquired by PFG by assignment or otherwise, or held by PFG on behalf of others,
however arising, whether voluntary or involuntary, due or not due,
absolute or contingent, liquidated or unliquidated, certain or uncertain,
determined or undetermined, monetary or nonmonetary, written or oral, and
whether Borrower may be liable individually or jointly with others, and
regardless of whether recovery thereon may be or hereafter become barred by any
statute of limitations, discharged or uncollectible in any bankruptcy,
insolvency or other proceeding (other than of a Guarantor in respect of itself),
or otherwise unenforceable; and (b) any and all amendments, modifications,
renewals and extensions of any or all of the foregoing, including without
limitation amendments, modifications, renewals and extensions which are
evidenced by any new or additional instrument, document or agreement; and
(c) any and all attorneys' fees, court costs, and collection charges
incurred in endeavoring to collect or enforce any of the foregoing against
Borrower, Guarantor, or any other person liable thereon (whether or not suit be
brought) and any other expenses of, for or incidental to collection
thereof.
3. Waivers. Guarantor
hereby waives: (a) presentment for payment, notice of dishonor,
demand, protest, and notice thereof as to any instrument, and all other notices
and demands to which Guarantor might be entitled, including without limitation
notice of all of the following: the acceptance hereof; the creation,
existence, or acquisition of any Indebtedness; the amount of the Indebtedness
from time to time outstanding; any foreclosure sale or other disposition of any
property which secures any or all of the Indebtedness or which secures the
obligations of any other guarantor of any or all of the Indebtedness; any
adverse change in Borrower's financial position; any other fact which might
increase Guarantor's risk; any default, partial payment or non-payment of all or
any part of the Indebtedness; the occurrence of any other Event of Default (as
hereinafter defined); any and all agreements and arrangements between PFG and
Borrower and any changes, modifications, or extensions thereof, and any
revocation, modification or release of any guaranty of any or all of the
Indebtedness by any person (including without limitation any other person
signing this Guaranty); (b) any right to require PFG to institute suit
against, or to exhaust its rights and remedies against, Borrower or any other
person, or to proceed against any property of any kind which secures all or any
part of the Indebtedness, or to exercise any right of offset or other right with
respect to any reserves, credits or deposit accounts held by or maintained with
PFG or any indebtedness of PFG to Borrower, or to exercise any other right or
power, or pursue any other remedy PFG may have; (c) any defense arising by
reason of any disability or other defense of Borrower or any other guarantor or
any endorser, co-maker or other person, or by reason of the cessation from any
cause whatsoever of any liability of Borrower or any other guarantor or any
endorser, co-maker or other person, with respect to all or any part of the
Indebtedness, or by reason of any act or omission of PFG or others which
directly or indirectly results in the discharge or release of Borrower or any
other guarantor or any other person or any Indebtedness or any security
therefor, whether by operation of law or otherwise; (d) any defense arising
by reason of any failure of PFG to obtain, perfect, maintain or keep in force
any security interest in, or lien or encumbrance upon, any property of Borrower
or any other person; (e) any defense based upon any failure of PFG to give
Guarantor notice of any sale or other disposition of any property securing any
or all of the Indebtedness, or any defects in any such notice that may be given,
or any failure of PFG to comply with any provision of applicable law in
enforcing any security interest in or lien upon any property securing any or all
of the Indebtedness including, but not limited to, any failure by PFG to dispose
of any property securing any or all of the Indebtedness in a commercially
reasonable manner; (f) any defense based upon or arising out of any
bankruptcy, insolvency, reorganization, arrangement, readjustment of debt,
liquidation or dissolution proceeding commenced by or against Borrower or any
other guarantor or any endorser, co-maker or other person, including without
limitation any discharge of, or bar against collecting, any of the Indebtedness
(including without limitation any interest thereon), in or as a result of any
such proceeding; and (g) the benefit of any and all statutes of limitation
with respect to any action based upon, arising out of or related to this
Guaranty. Until all of the Indebtedness has been paid, performed, and
discharged in full, nothing shall discharge or satisfy the liability of
Guarantor hereunder except the full performance and payment of all of the
Indebtedness. If any claim is ever made upon PFG for repayment or
recovery of any amount or amounts received by PFG in payment of or on account of
any of the Indebtedness, because of any claim that any such payment constituted
a preferential transfer or fraudulent conveyance, or for any other reason
whatsoever, and PFG repays all or part of said amount by reason of any judgment,
decree or order of any court or administrative body having jurisdiction over PFG
or any of its property, or by reason of any settlement or compromise of any such
claim effected by PFG with any such claimant (including without limitation the
Borrower), then and in any such event, Guarantor agrees that any such judgment,
decree, order, settlement and compromise shall be binding upon Guarantor,
notwithstanding any revocation or release of this Guaranty or the cancellation
of any note or other instrument evidencing any of the Indebtedness, or any
release of any of the Indebtedness, and the Guarantor shall be and remain liable
to PFG under this Guaranty for the amount so repaid or recovered, to the same
extent as if such amount had never originally been received by PFG, and the
provisions of this sentence shall survive, and continue in effect,
notwithstanding any revocation or release of this Guaranty. Until all
of the Indebtedness has been irrevocably paid and performed in full, Guarantor
hereby expressly and unconditionally agrees not to assert any and all rights of
subrogation, reimbursement and indemnity of every kind against Borrower, and all
rights of recourse to any assets or property of Borrower, and all rights to any
collateral or security held for the payment and performance of any Indebtedness,
including (but not limited to) any of the foregoing rights which Guarantor may
have under any present or future document or agreement with any Borrower or
other person, and including (but not limited to) any of the foregoing rights
which Guarantor may have under any equitable doctrine of subrogation, implied
contract, or unjust enrichment, or any other equitable or legal
doctrine. Neither PFG, nor any of its directors, officers, employees,
agents, attorneys or any other person affiliated with or representing PFG shall
be liable for any claims, demands, losses or damages, of any kind whatsoever,
made, claimed, incurred or suffered by Guarantor or any other party through the
ordinary negligence of PFG, or any of its directors, officers, employees,
agents, attorneys or any other person affiliated with or representing
PFG.
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4. Consents. Guarantor
hereby consents and agrees that, without notice to or by Guarantor and without
affecting or impairing in any way the obligations or liability of Guarantor
hereunder, if there has occurred a Default or Event of Default under the Loan
Agreement, PFG may, from time to time before or after revocation of this
Guaranty, do any one or more of the following in PFG's sole and absolute
discretion: (a) accelerate, accept partial payments of,
compromise or settle, renew, extend the time for the payment, discharge, or
performance of, refuse to enforce, and release all or any parties to, any or all
of the Indebtedness; (b) grant any other indulgence to Borrower or any
other person in respect of any or all of the Indebtedness or any other matter;
(c) accept, release, waive, surrender, enforce, exchange, modify, impair,
or extend the time for the performance, discharge, or payment of, any and all
property of any kind securing any or all of the Indebtedness or any guaranty of
any or all of the Indebtedness, or on which PFG at any time may have a lien, or
refuse to enforce its rights or make any compromise or settlement or agreement
therefor in respect of any or all of such property; (d) substitute or add,
or take any action or omit to take any action which results in the release of,
any one or more endorsers or guarantors of all or any part of the Indebtedness,
including, without limitation one or more parties to this Guaranty, regardless
of any destruction or impairment of any right of contribution or other right of
Guarantor; (e) amend, alter or change in any respect whatsoever any term or
provision relating to any or all of the Indebtedness, including the rate of
interest thereon; (f) apply any sums received from Borrower, any other
guarantor, endorser, or co-signer, or from the disposition of any collateral or
security, to any indebtedness whatsoever owing from such person or secured by
such collateral or security, in such manner and order as PFG determines in its
sole discretion, but subject to any restrictions in the Loan Agreement, and
regardless of whether such indebtedness is part of the Indebtedness, is secured,
or is due and payable; (g) apply any sums received from Guarantor or from
the disposition of any collateral or security securing the obligations of
Guarantor, to any of the Indebtedness in such manner and order as PFG determines
in its sole discretion, regardless of whether or not such Indebtedness is
secured or is due and payable. Guarantor consents and agrees that PFG
shall be under no obligation to marshal any assets in favor of Guarantor, or
against or in payment of any or all of the Indebtedness. Guarantor
further consents and agrees that PFG shall have no duties or responsibilities
whatsoever with respect to any property securing any or all of the
Indebtedness. Without limiting the generality of the foregoing, PFG
shall have no obligation to monitor, verify, audit, examine, or obtain or
maintain any insurance with respect to, any property securing any or all of the
Indebtedness.
5. No
Commitment. Guarantor acknowledges and agrees that acceptance
by PFG of this Guaranty shall not constitute a commitment of any kind by PFG to
extend such credit or other financial accommodation to Borrower or to permit
Borrower to incur Indebtedness to PFG.
6. Exercise of Rights and Remedies;
Foreclosure of Trust Deeds. Until the Indebtedness of Borrower
to PFG is indefeasibly paid in full, Guarantor hereby irrevocably agrees not to
assert any and all rights of subrogation, reimbursement, indemnification, and
contribution and any other rights and defenses that are or may become available
to the Guarantor or other surety by reason of California Civil Code Sections
2787 to 2855, inclusive. The Guarantor waives all rights and defenses
that the Guarantor may have because the Borrower's Indebtedness is secured by
real property. This means, among other things: (1) PFG may
collect from the Guarantor without first foreclosing on any real or personal
property collateral pledged by the Borrower. (2) If PFG forecloses on
any real property collateral pledged by the Borrower: (A) The amount
of the Indebtedness may be reduced only by the price for which that collateral
is sold at the foreclosure sale, even if the collateral is worth more than the
sale price. (B) PFG may collect from the Guarantor even if PFG, by
foreclosing on the real property collateral, has destroyed any right the
Guarantor may have to collect from the Borrower. This is an
unconditional and irrevocable waiver of any rights and defenses the Guarantor
may have because the Borrower's Indebtedness is secured by real
property. These rights and defenses include, but are not limited to,
any rights or defenses based upon Section 580a, 580b, 580d, or 726 of the Code
of Civil Procedure. The Guarantor waives all rights and defenses
arising out of an election of remedies by PFG, even though that election of
remedies, such as a nonjudicial foreclosure with respect to security for a
guaranteed obligation, has destroyed the Guarantor's rights of subrogation and
reimbursement against the principal by the operation of Section 580d of the Code
of Civil Procedure or otherwise.
7. Acceleration. Notwithstanding
the terms of all or any part of the Indebtedness, the obligations of the
Guarantor hereunder to pay and perform all of the Indebtedness shall, at the
option of PFG, immediately become due and payable, without notice, and without
regard to the expressed maturity of any of the Indebtedness, in the
event: (a) Guarantor shall fail to pay or perform when due any of its
obligations under this Guaranty; or (b) upon the occurrence and during the
continuance of any “Event of Default” as defined under the Loan Documents, or
upon the occurrence of any default or event of default under any present or
future loan agreement or other instrument, document or agreement between PFG and
Borrower or between PFG and Guarantor. The foregoing are referred to
in this Guaranty as "Events of Default".
8. Indemnity. Guarantor
hereby agrees to indemnify PFG and hold PFG harmless from and against any and
all claims, debts, liabilities, demands, obligations, actions, causes of action,
penalties, costs and expenses (including without limitation attorneys' fees), of
every nature, character and description, which PFG may sustain or incur based
upon or arising out of any of the Indebtedness, any actual or alleged failure to
collect and pay over any withholding or other tax relating to Borrower or its
employees, any relationship or agreement between PFG and Borrower, any actual or
alleged failure of PFG to comply with any writ of attachment or other legal
process relating to Borrower or any of its property, or any other matter, cause
or thing whatsoever occurred, done, omitted or suffered to be done by PFG
relating in any way to Borrower or the Indebtedness (except any such amounts
sustained or incurred as the result of the gross negligence or willful
misconduct of PFG or any of its directors, officers, employees, agents,
attorneys, or any other person affiliated with or representing
PFG). Notwithstanding any provision in this Guaranty to the contrary,
the indemnity agreement set forth in this Section shall survive any termination
or revocation of this Guaranty and shall for all purposes continue in full force
and effect until all Indebtedness is paid.
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9. Subordination. Any
and all rights of Guarantor under any and all debts, liabilities and obligations
owing from Borrower to Guarantor, including any security for any guaranties of
any such obligations, whether now existing or hereafter arising, are hereby
subordinated in right of payment to the prior payment in full of all of the
Indebtedness. No payment in respect of any such subordinated
obligations shall at any time be made to or accepted by Guarantor if at the time
of such payment any Indebtedness is outstanding. If any Event of
Default has occurred, Borrower and any assignee, trustee in bankruptcy,
receiver, or any other person having custody or control over any or all of
Borrower's property are hereby authorized and directed to pay to PFG the entire
unpaid balance of the Indebtedness before making any payments whatsoever to
Guarantor, whether as a creditor, shareholder, or otherwise; and insofar as may
be necessary for that purpose, Guarantor hereby assigns and transfers to PFG all
rights to any and all debts, liabilities and obligations owing from Borrower to
Guarantor, including any security for and guaranties of any such obligations,
whether now existing or hereafter arising, including without limitation any
payments, dividends or distributions out of the business or assets of
Borrower. Any amounts received by Guarantor in violation of the
foregoing provisions shall be received and held as trustee for the benefit of
PFG and shall forthwith be paid over to PFG to be applied to the Indebtedness in
such order and sequence as PFG shall in its sole discretion determine, without
limiting or affecting any other right or remedy which PFG may have hereunder or
otherwise and without otherwise affecting the liability of Guarantor
hereunder. Guarantor hereby expressly waives any right to set-off or
assert any counterclaim against Borrower.
10. Revocation. This is
a Continuing Guaranty relating to all of the Indebtedness, including
Indebtedness arising under successive transactions which from time to time
continue the Indebtedness or renew it after it has been
satisfied. The obligations of Guarantor hereunder may be terminated
only as to future transactions and only by (i) giving 90 days' advance
written notice thereof to PFG at its address above by registered first-class
U.S. mail, postage prepaid, return receipt requested, or (ii) upon termination
of the Loan Agreement and all Obligations thereunder, provided such termination
shall be effective until 90 days following the date of actual receipt of
the notice set forth in clause (i) above or such termination as provided in
clause (ii) above. Notwithstanding such revocation, this Guaranty and
all consents, waivers and other provisions hereof shall continue in full force
and effect as to any and all Indebtedness which is outstanding on the effective
date of revocation and all extensions, renewals and modifications of said
Indebtedness (including without limitation amendments, extensions, renewals and
modifications which are evidenced by new or additional instruments, documents or
agreements executed after revocation), and all interest thereon, then and
thereafter accruing, and all attorneys' fees, court costs and collection charges
theretofore and thereafter incurred in endeavoring to collect or enforce any of
the foregoing against Borrower, Guarantor or any other person liable thereon
(whether or not suit be brought) and any other expenses of, for or incidental to
collection thereof.
11. Independent Liability. Guarantor
hereby agrees that one or more successive or concurrent actions may be brought
hereon against Guarantor, in the same action in which Borrower may be sued or in
separate actions, as often as deemed advisable by PFG. The liability
of Guarantor hereunder is exclusive and independent of any other guaranty of any
or all of the Indebtedness whether executed by Guarantor or by any other
guarantor (including without limitation any other persons signing this
Guaranty). The liability of Guarantor hereunder shall not be
affected, revoked, impaired, or reduced by any one or more of the
following: (a) the fact that the Indebtedness exceeds the
maximum amount of Guarantor's liability, if any, specified herein or elsewhere
(and no agreement specifying a maximum amount of Guarantor's liability shall be
enforceable unless set forth in a writing signed by PFG or set forth in this
Guaranty); or (b) any direction as to the application of payment by
Borrower or by any other party; or (c) any other continuing or restrictive
guaranty or undertaking or any limitation on the liability of any other
guarantor (whether under this Guaranty or under any other agreement); or
(d) any payment on or reduction of any such other guaranty or undertaking;
or (e) any revocation, amendment, modification or release of any such other
guaranty or undertaking; or (f) any dissolution or termination of, or
increase, decrease, or change in membership of any Guarantor which is a
partnership. Guarantor hereby expressly represents that it was not
induced to give this Guaranty by the fact that there are or may be other
guarantors either under this Guaranty or otherwise, and Guarantor agrees that
any release of any one or more of such other guarantors shall not release
Guarantor from its obligations hereunder either in full or to any lesser
extent.
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12. Financial Condition of Borrower. Guarantor
is fully aware of the financial condition of Borrower and is executing and
delivering this Guaranty at Borrower's request and based solely upon its own
independent investigation of all matters pertinent hereto, and Guarantor is not
relying in any manner upon any representation or statement of PFG with respect
thereto. Guarantor represents and warrants that it is in a position
to obtain, and Guarantor hereby assumes full responsibility for obtaining, any
additional information concerning Borrower's financial condition and any other
matter pertinent hereto as Guarantor may desire, and Guarantor is not relying
upon or expecting PFG to furnish to him any information now or hereafter in
PFG's possession concerning the same or any other matter.
13. Representations and Warranties. In order to
induce PFG to enter into a loan agreement with each Borrower and make loans to
Borrower, each Guarantor represents and warrants to PFG as follows, and each
Guarantor covenants that the following representations will continue to be true,
and that Guarantor will at all times comply with all of the following covenants,
throughout the term of this Agreement and until all Obligations have been paid
and performed in full: (a) Guarantor is and will continue to be, duly organized,
validly existing and in good standing under the laws of the jurisdiction of its
incorporation and is and will continue to be qualified and licensed to do
business in all jurisdictions in which any failure to do so would result in a
Material Adverse Change; (b) the execution, delivery and performance by
Guarantor of this Agreement, and all other documents contemplated hereby (i)
have been duly and validly authorized, (ii) are enforceable against Guarantor in
accordance with their terms (except as enforcement may be limited by equitable
principles and by bankruptcy, insolvency, reorganization, moratorium or similar
laws relating to creditors' rights generally), and (iii) do not violate
Guarantor’s articles or certificate of incorporation, or Guarantor’s by-laws or
other constitutional documents or instrument, or any law or
any material agreement or instrument which is binding upon Guarantor
or its property, (iv) do not constitute grounds for acceleration of any material
indebtedness or obligation under any agreement or instrument which is binding
upon Guarantor or its property, and (v) the person executing this Guaranty on
behalf of each Guarantor is a duly-authorized and empowered officer or agent of
each such Guarantor; and (c) it is in Guarantor's
direct interest to assist Borrower in procuring credit, because Borrower is an
affiliate of Guarantor, furnishes goods or services to Guarantor, purchases or
acquires goods or services from Guarantor, and/or otherwise has a direct or
indirect corporate or business relationship with Guarantor.
14. Grant of Security Interest. To secure
the payment of all Indebtedness and the timely performance of all of the
Obligations when due, each Guarantor hereby grants to PFG a security interest in
all of the following (collectively, the “Collateral”) until all Obligations are
indefeasibly paid and performed: all right, title and interest of
Guarantor in and to all of the following, whether now owned or hereafter arising
or acquired and wherever located: all Accounts; all Inventory; all Equipment;
all Deposit Accounts; all General Intangibles (including without limitation all
Intellectual Property); all Investment Property; all Other Property; and any and
all claims, rights and interests in any of the above, and all guaranties and
security for any of the above, and all substitutions and replacements for,
additions, accessions, attachments, accessories, and improvements to, and
proceeds (including proceeds of any insurance policies, proceeds of
proceeds and claims against third parties) of, any and all of the above, and all
Guarantor’s books relating to any and all of the above.
15. Costs;
Interest. Whether or not suit be instituted, Guarantor agrees
to reimburse PFG on demand for all reasonable attorneys' fees and all other
reasonable costs and expenses incurred by PFG in enforcing this Guaranty, or
arising out of or relating in any way to this Guaranty, or in enforcing any of
the Indebtedness against Borrower, Guarantor, or any other person, or in
connection with any property of any kind of Guarantor securing all or any part
of the Indebtedness. Without limiting the generality of the
foregoing, and in addition thereto, Guarantor shall reimburse PFG on demand for
all reasonable attorneys' fees and costs PFG incurs in any way relating to
Guarantor, Borrower or the Indebtedness, in order to: obtain legal
advice; enforce or seek to enforce any of its rights; commence, intervene in,
respond to, or defend any action or proceeding; file, prosecute or defend any
claim or cause of action in any action or proceeding (including without
limitation any probate claim, bankruptcy claim, third-party claim, secured
creditor claim, reclamation complaint, and complaint for relief from any stay
under the Bankruptcy Code or similar legislation in any other jurisdiction or
otherwise); protect, obtain possession of, sell, lease, dispose of or otherwise
enforce any security interest in or lien on any property of any kind securing
any or all of the Indebtedness; or represent PFG in any litigation with respect
to Borrower's or Guarantor's affairs. In the event either PFG or Guarantor files
any lawsuit against the other predicated on a breach of this Guaranty, the
prevailing party in such action shall be entitled to recover its attorneys' fees
and costs of suit from the non-prevailing party. All sums due under
this Guaranty shall bear interest from the date due until the date paid at the
highest rate charged with respect to any of the Indebtedness.
16. Notices. Any notice
which a party shall be required or shall desire to give to the other hereunder
(except for notice of revocation, which shall be governed by Section 10 of this
Guaranty) shall be given by personal delivery or by telecopier or by depositing
the same in the United States mail, first class postage pre-paid, addressed to
PFG at its address set forth in the heading of this Guaranty and to Guarantor at
its address provided by Guarantor to PFG in writing, and such notices shall be
deemed duly given on the date of personal delivery or one day after the date
telecopied or 3 business days after the date of mailing as
aforesaid. PFG and Guarantor may change their address for purposes of
receiving notices hereunder by giving written notice thereof to the other party
in accordance herewith. Guarantor shall give PFG immediate written
notice of any change in its address.
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17. Claims. Each of
Guarantor, on the on hand, and PFG, on the other hand (each a "party") agrees
that any claim or cause of action by a party against the, or any of their
respective directors, officers, employees, agents, accountants or attorneys,
based upon, arising from, or relating to this Guaranty, or any other present or
future agreement between PFG and Guarantor or between PFG and Borrower, or any
other transaction contemplated hereby or thereby or relating hereto or thereto,
or any other matter, cause or thing whatsoever, whether or not relating hereto
or thereto, occurred, done, omitted or suffered to be done by a party or its
respective directors, officers, employees, agents, accountants or attorneys,
whether sounding in contract or in tort or otherwise, shall be barred unless
asserted by a party by the commencement of an action or proceeding in a court of
competent jurisdiction within San Francisco County, California, by the filing of
a complaint within one year after the first act, occurrence or omission upon
which such claim or cause of action, or any part thereof, is based and service
of a summons and complaint on an officer of the other party or any other person
authorized to accept service of process on behalf of such other party, within 30
days thereafter. Each party agrees that such one year period is a
reasonable and sufficient time for a party to investigate and act upon any such
claim or cause of action. The one year period provided herein shall
not be waived, tolled, or extended except by a specific written agreement by all
parties hereto. This provision shall survive any termination of this
Guaranty or any other agreement.
18. Construction; Severability.
The term "Guarantor" as used herein shall be deemed to refer to all and any one
or more such persons and their obligations hereunder shall be joint and
several. As used in this Guaranty, the term "property" is used in its
most comprehensive sense and shall mean all property of every kind and nature
whatsoever, including without limitation real property, personal property, mixed
property, tangible property and intangible property. If any provision
of this Guaranty or the application thereof to any party or circumstance is held
invalid, void, inoperative or unenforceable as against any Guarantor, the
remainder of this Guaranty and the application of such provision to other
Guarantors or circumstances shall not be affected thereby, the provisions of
this Guaranty being severable in any such instance.
19. Withholding; Gross-up. All payments to
be made by Guarantor under this Guaranty, whether in respect of principal,
interest, fees or otherwise, shall (save insofar as required by law to the
contrary) be paid in full without set-off or counterclaim and free and clear of
and without any deduction or withholding or payment for or on account of any
taxes that may be imposed in the United Kingdom, Canada, or any other
jurisdiction from which payment may be made by Guarantor under this
Guaranty. If Guarantor shall be required by law to effect any
deduction or withholding or payment as aforesaid from or in connection with any
payment made under this Guaranty for the account of PFG then: (a) Guarantor
shall promptly notify PFG upon becoming aware of the relevant requirements to
deduct any such deduction or withholding or payment; (b) Guarantor shall ensure
that such deduction or withholding or payment does not exceed the minimum legal
liability therefor, shall remit the amount of such tax to the appropriate
taxation authority and shall forthwith pay to PFG such additional amount as will
result in the immediate receipt by PFG of the full amount which would otherwise
have been receivable hereunder had no such deduction or withholding or payment
been made; and (c) Guarantor shall not later than 50 days after each deduction
or withholding or payment of any taxes forward to PFG documentary evidence
reasonably required by PFG in respect of the payment of any such
taxes.
20. General
Provisions. PFG shall have the right to seek recourse against
Guarantor to the full extent provided for herein and in any other instrument or
agreement evidencing obligations of Guarantor to PFG, and against Borrower to
the full extent of the Indebtedness. No election in one form of
action or proceeding, or against any party, or on any obligation, shall
constitute a waiver of PFG's right to proceed in any other form of action or
proceeding or against any other party. The failure of PFG to enforce
any of the provisions of this Guaranty at any time or for any period of time
shall not be construed to be a waiver of any such provision or the right
thereafter to enforce the same. All remedies hereunder shall be
cumulative and shall be in addition to all rights, powers and remedies given to
PFG by law or under any other instrument or agreement. Time is
of the essence in the performance by Guarantor of each and every obligation
under this Guaranty. PFG shall have no obligation to inquire into the
power or authority of Borrower or any of its officers, directors, employees, or
agents acting or purporting to act on its behalf, and any Indebtedness made or
created in reliance upon the professed exercise of any such power or authority
shall be included in the Indebtedness guaranteed hereby. This
Guaranty is the entire and only agreement between Guarantor and PFG with respect
to the guaranty of the Indebtedness of Borrower by Guarantor, and all
representations, warranties, agreements, or undertakings heretofore or
contemporaneously made, which are not set forth herein, are superseded
hereby. No course of dealings between the parties, no usage of the
trade, and no parol or extrinsic evidence of any nature shall be used or be
relevant to supplement or explain or modify any term or provision of this
Guaranty. There are no conditions to the full effectiveness of this
Guaranty. The terms and provisions hereof may not be waived, altered,
modified, or amended except in a writing executed by Guarantor and a duly
authorized officer of PFG. All rights, benefits and privileges
hereunder shall inure to the benefit of and be enforceable by PFG and its
successors and assigns and shall be binding upon Guarantor and its successors
and assigns. Section headings are used herein for convenience
only. Guarantor acknowledges that the same may not describe
completely the subject matter of the applicable Section, and the same shall not
be used in any manner to construe, limit, define or interpret any term or
provision hereof.
6
21. Governing Law; Venue and Jurisdiction.
This instrument and all acts and transactions pursuant or relating hereto and
all rights and obligations of the parties hereto shall be governed, construed,
and interpreted in accordance with the internal laws of the State of
California. In order to induce PFG to accept this Guaranty, and as a
material part of the consideration therefor, Guarantor (i) agrees that all
actions or proceedings relating directly or indirectly hereto shall, at the
option of PFG, be litigated in courts located within San Francisco County,
California, (ii) consents to the jurisdiction of any such court and
consents to the service of process in any such action or proceeding by personal
delivery or any other method permitted by law; and (iii) waives any and all
rights Guarantor may have to transfer or change the venue of any such action or
proceeding.
22. Receipt of
Copy. Guarantor acknowledges receipt of a copy of this
Guaranty.
23. Mutual
Waiver of Right to Jury Trial. PFG AND GUARANTOR
HEREBY WAIVE THE RIGHT TO TRIAL BY JURY IN ANY ACTION, CLAIM, LAWSUIT OR
PROCEEDING BASED UPON, ARISING OUT OF, OR IN ANY WAY RELATING TO: (i) THIS GUARANTEE OR
ANY SUPPLEMENT OR AMENDMENT THERETO; OR (ii) ANY OTHER PRESENT
OR FUTURE INSTRUMENT OR AGREEMENT BETWEEN PFG AND GUARANTOR; OR (iii) ANY BREACH,
CONDUCT, ACTS OR OMISSIONS OF PFG OR GUARANTOR OR ANY OF THEIR RESPECTIVE
DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, ATTORNEYS OR ANY OTHER PERSON AFFILIATED
WITH OR REPRESENTING PFG OR GUARANTOR WITH RESPECT TO THIS GUARANTY OR ANY OTHER
LOAN DOCUMENT; IN EACH OF THE FOREGOING CASES, WHETHER SOUNDING IN CONTRACT OR
TORT OR OTHERWISE. WITHOUT INTENDING IN ANY WAY TO LIMIT
THE PARTIES’ AGREEMENT TO WAIVE THEIR RESPECTIVE RIGHT TO A TRIAL BY
JURY, if the above waiver
of the right to a trial by jury is not enforceable, the parties hereto agree that any and all
disputes or controversies of any nature between them arising at any time shall
be decided by a reference to a private judge, mutually selected by the parties
(or, if they cannot agree, by the Presiding Judge of the San Francisco County,
California Superior Court) appointed in accordance with California Code of Civil
Procedure Section 638 (or pursuant to comparable provisions of federal law if
the dispute falls within the exclusive jurisdiction of the federal courts),
sitting without a jury, in San Francisco County, California; and the parties
hereby submit to the jurisdiction of such court. The reference
proceedings shall be conducted pursuant to and in accordance with the provisions
of California Code of Civil Procedure §§ 638 through 645.1,
inclusive. The private judge shall have the power, among others, to
grant provisional relief, including without limitation, entering temporary
restraining orders, issuing preliminary and permanent injunctions and appointing
receivers. All such proceedings shall be closed to the public and
confidential and all records relating thereto shall be permanently
sealed. If during the course of any dispute, a party desires to seek
provisional relief, but a judge has not been appointed at that point pursuant to
the judicial reference procedures, then such party may apply to the San
Francisco County, California Superior Court for such relief. The
proceeding before the private judge shall be conducted in the same manner as it
would be before a court under the rules of evidence applicable to judicial
proceedings. The parties shall be entitled to discovery which shall
be conducted in the same manner as it would be before a court under the rules of
discovery applicable to judicial proceedings. The private judge shall
oversee discovery and may enforce all discovery rules and order applicable to
judicial proceedings in the same manner as a trial court judge. The
parties agree that the selected or appointed private judge shall have the power
to decide all issues in the action or proceeding, whether of fact or of law, and
shall report a statement of decision thereon pursuant to the California Code of
Civil Procedure § 644(a). Nothing in this paragraph shall limit the
right of any party at any time to exercise self-help remedies, foreclose against
collateral, or obtain provisional remedies. The private judge shall
also determine all issues relating to the applicability, interpretation, and
enforceability of this paragraph.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
7
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Borrower:
|
PFG:
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||||
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COMPOSITE
TECHNOLOGY CORPORATION
|
PARTNERS
FOR GROWTH II, L.P.
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||||
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By
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/s/ Xxxxxx X. Xxxxxxxx |
By
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|||
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CEO
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|||||
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Name:
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|||||
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By
|
/s/ Xxxx Xxx | ||||
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Secretary or Ass't
Secretary
|
Title:
Manager, Partners for Growth II, LLC
|
||||
|
Its General
Partner
|
|||||
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Borrower:
|
Borrower:
|
||||
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CTC
CABLE CORPORATION
|
CTC
RENEWABLES CORPORATION
|
||||
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By
|
/s/ Xxxxxx X. Xxxxxxxx |
By
|
/s/ Xxxxxx X. Xxxxxxxx | ||
|
President
|
President
|
||||
|
By
|
/s/ Xxxx Xxx |
By
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/s/ Xxxx Xxx |
|
|
|
Secretary or Ass't
Secretary
|
Secretary or Ass't
Secretary
|
||||
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Guarantor:
|
|||||
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STRIBOG,
INC.
|
|||||
|
By
|
/s/ Xxxxxx X. Xxxxxxxx | ||||
|
President
|
|||||
|
By
|
/s/ Xxxx Xxx | ||||
|
Secretary or Ass't
Secretary
|
|||||
Cross-Corporate
Continuing Guaranty and Security Agreement Signature Page
