Contract
This
GENERAL
CONTINUING GUARANTY (this
“Guaranty”),
dated
as of August 22, 2008, is executed and delivered by HYDROGEN
CORPORATION, a
Nevada
corporation (“Guarantor”),
in
favor of FEDERATED
XXXXXXXX FUND, a
portfolio of Federated Equity Funds, a Massachusetts business trust, as agent
for the Lenders (in such capacity, together with its successors and assigns,
if
any, in such capacity, “Agent”),
in
light of the following:
WHEREAS,
Hydrogen, L.L.C., an Ohio limited liability company (“Borrower”),
the
Lenders, and Agent are, contemporaneously herewith, entering into that certain
Loan and Security Agreement of even date herewith (as amended, restated,
modified, renewed or extended from time to time, the “Loan
Agreement”);
WHEREAS,
Borrower is the direct subsidiary of Guarantor and, Guarantor will benefit
by
virtue of the financial accommodations extended to Borrower by the Lenders;
and
WHEREAS,
in
order to induce the Lenders to enter into the Loan Agreement and Loan Documents
and to extend the loans and other financial accommodations to Borrower pursuant
to the Loan Agreement, and in consideration thereof, and in consideration of
any
loans or other financial accommodations heretofore or hereafter extended by
the
Lenders to Borrower pursuant to the Loan Documents, Guarantor has agreed to
guaranty the Guarantied Obligations.
NOW,
THEREFORE,
in
consideration of the foregoing, Guarantor hereby agrees as follows:
1. Definitions
and Construction.
(a) Definitions.
Capitalized terms used herein and not otherwise defined herein shall have the
meanings ascribed to them in the Loan Agreement and Loan Documents. The
following terms, as used in this Guaranty, shall have the following
meanings:
“Agent”
has
the
meaning set forth in the preamble to this Guaranty.
“Bankruptcy
Code”
means
the Bankruptcy Reform Act of 1978, as amended 11 U.S.C. §§101 et seq.,
and
the regulations adopted and promulgated pursuant thereto.
“Borrower”
has
the
meaning set forth in the recitals to this Guaranty.
“Loan
Agreement”
has
the
meaning set forth in the recitals to this Guaranty.
“Guarantied
Obligations”
means
the
obligations and liabilities of the Borrower and Guarantor to Agent and the
Lenders (including, without limitation, the obligations whether direct or
indirect, absolute or contingent, due or to become due, or now existing or
hereafter incurred) that may arise under, or out of or in connection with the
Loan Agreement, this Guaranty, and any other Loan Documents, whether on account
of covenants, interest, principal, reimbursement obligations, fees, indemnities,
costs, expenses (including, without limitation, all reasonable fees and
disbursements of counsel to Agent that are required to be paid by the Borrower
or Guarantor pursuant to the terms of the Loan Agreement, this Guaranty, or
any
of the Loan Documents, respectively).
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“Guarantor”
has
the
meaning set forth in the preamble to this Guaranty.
“Guaranty”
has
the
meaning set forth in the preamble to this Guaranty.
“Lenders”
means,
individually and collectively, each of the lenders identified on the signature
pages to the Loan Agreement, and shall include any other Person made a party
to
the Loan Agreement as a Lender in accordance with the provisions thereof
(together with their respective successors and assigns).
“Loan
Documents”
shall
mean the Loan Agreement, this Guaranty and the Disclosure Schedules, and any
and
all other agreements, notes, documents, mortgages, financing statements,
guaranties, intercreditor agreements, subordination agreements, certificates
and
instruments executed and/or delivered by Borrowers or any other Person to Agent
or the Lenders pursuant to and in connection with the Loan and this Agreement,
including, without limitation, the Term Loan Notes, the Closing Date Warrants,
the Default Warrants, the Membership Interest Pledge Agreement and all other
documents entered into by the parties in connection with the transactions
contemplated hereby.“Record”
means
information that is inscribed on a tangible medium or which is stored in an
electronic or other medium and is retrievable in perceivable form.
“Voidable
Transfer”
has
the
meaning set forth in Section 10
of this
Guaranty.
(b) Construction.
Unless
the context of this Guaranty clearly requires otherwise, references to the
plural include the singular, references to the singular include the plural,
the
part includes the whole, the terms “includes” and “including” are not limiting,
and the term “or” has, except where otherwise indicated, the inclusive meaning
represented by the phrase “and/or.” The words “hereof,” “herein,” “hereby,”
“hereunder,” and other similar terms in this Guaranty refer to this Guaranty as
a whole and not to any particular provision of this Guaranty. Section,
subsection, clause, schedule, and exhibit references herein are to this Guaranty
unless otherwise specified. Any reference in this Guaranty to any agreement,
instrument, or document shall include all alterations, amendments, changes,
extensions, modifications, renewals, replacements, substitutions, joinders,
and
supplements, thereto and thereof, as applicable (subject to any restrictions
on
such alterations, amendments, changes, extensions, modifications, renewals,
replacements, substitutions, joinders, and supplements set forth herein).
Neither this Guaranty nor any uncertainty or ambiguity herein shall be construed
or resolved against the Agents or Lenders or Borrower, whether under any rule
of
construction or otherwise. On the contrary, this Guaranty has been reviewed
by
all parties and shall be construed and interpreted according to the ordinary
meaning of the words used so as to accomplish fairly the purposes and intentions
of Guarantor and Agent. Any reference herein to the satisfaction, repayment
or
payment in full of the Guarantied Obligations shall mean the payment in full
in
cash (or cash collateralization in accordance with the terms of the Loan
Agreement, or with respect to Letters of Credit, any such Letters of Credit
supported by another letter of credit reasonably satisfactory to Agent) of
all
Guarantied Obligations other than contingent indemnification Guarantied
Obligations to remain outstanding and are not required to be repaid or cash
collateralized pursuant to the provisions of the Loan Agreement and the full
and
final termination of any commitment to extend any financial accommodations
under
the Loan Agreement and any other Loan Document. Any reference herein to any
Person shall be construed to include such Person’s successors and assigns. Any
requirement of a writing contained herein shall be satisfied by the transmission
of a Record and any Record transmitted shall constitute a representation and
warranty as to the accuracy and completeness of the information contained
therein. The captions and headings are for convenience of reference only and
shall not affect the construction of this Guaranty.
2. Guarantied
Obligations.
Guarantor hereby, unconditionally, absolutely and irrevocably guarantees to
Agent, for the benefit of the Lenders, the prompt and complete payment and
performance when due (whether at the stated maturity, by acceleration or
otherwise) of the Guarantied Obligations. Guarantor further agrees to pay any
and all reasonable expenses (including, without limitation, all reasonable
fees
and disbursements of counsel) that may be paid or incurred by Agent in enforcing
any rights with respect to, or collecting, any or all of the Guarantied
Obligations and/or enforcing any rights with respect to, or collecting against,
Guarantor under this Guaranty unless, and to the extent, Guarantor is the
prevailing party in any dispute, claim or action relating thereto, in which
event Guarantor shall be entitled to recover from Agent Guarantor’s reasonable
expenses (including, without limitation, all reasonable fees and disbursements
of counsel) incurred in connection therewith. This Guaranty shall remain in
full
force and effect until the Guarantied Obligations are paid in full,
notwithstanding that from time to time prior thereto the Borrower may be free
from any Guarantied Obligations. No payment or payments made by Borrower,
Guarantor, any other guarantor or any other Person received or collected by
Agent from Borrower, Guarantor, any other guarantor or any other Person by
virtue of any action or proceeding or any set-off or appropriation or
application at any time or from time to time in reduction of or in payment
of
the Guarantied Obligations shall be deemed to modify, reduce, release or
otherwise affect the liability of Guarantor hereunder except to the extent
of
the reduction of the Guarantied Obligations as a consequence thereof. Guarantor
shall remain liable for the Guarantied Obligations until the date the Guarantied
Obligations are satisfied and paid in full.
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3. Continuing
Guaranty.
This
Guaranty includes Guarantied Obligations arising under successive transactions
continuing, compromising, extending, increasing, modifying, releasing, or
renewing the Guarantied Obligations, changing the interest rate, payment terms,
or other terms and conditions thereof, or creating new or additional Guarantied
Obligations after prior Guarantied Obligations have been satisfied in whole
or
in part. To the maximum extent permitted by law, Guarantor hereby waives any
right to revoke this Guaranty as to future Guarantied Obligations. If such
a
revocation is effective notwithstanding the foregoing waiver, Guarantor
acknowledges and agrees that (a) no such revocation shall be effective
until written notice thereof has been received by Agent, (b) no such
revocation shall apply to any Guarantied Obligations in existence on the date
of
receipt by Agent of such written notice (including any subsequent continuation,
extension, or renewal thereof, or change in the interest rate, payment terms,
or
other terms and conditions thereof), (c) no such revocation shall apply to
any Guarantied Obligations made or created after such date to the extent made
or
created pursuant to a legally binding commitment of the Lenders in existence
on
the date of such revocation, (d) no payment by Guarantor, Borrower, or from
any other source, prior to the date of Agent’s receipt of written notice of such
revocation shall reduce the maximum obligation of Guarantor hereunder, and
(e) any payment by Borrower or from any source other than Guarantor
subsequent to the date of such revocation shall first be applied to that portion
of the Guarantied Obligations as to which the revocation is effective and which
are not, therefore, guarantied hereunder, and to the extent so applied shall
not
reduce the maximum obligation of Guarantor hereunder.
4. Performance
Under this Guaranty.
In the
event that Borrower fails to make any payment of any Guarantied Obligations,
on
or prior to the due date thereof, or if Borrower fails to perform, keep,
observe, or fulfill any other obligation referred to in Section
2
of this
Guaranty in the manner provided in the Loan Agreement or Loan Documents,
Guarantor immediately shall cause, as applicable, such payment in respect of
the
Guarantied Obligations to be made or such obligation to be performed, kept,
observed, or fulfilled.
5. Primary
Obligations.
This
Guaranty is a primary and original obligation of Guarantor, is not merely the
creation of a surety relationship, and is an absolute, unconditional, and
continuing guaranty of payment and performance which shall remain in full force
and effect without respect to future changes in conditions. Guarantor hereby
agrees that it is directly, jointly and severally with any other guarantor
of
the Guarantied Obligations, liable to Agent, for the benefit of the Lenders,
that the obligations of Guarantor hereunder are independent of the obligations
of Borrower or any other guarantor, and that a separate action may be brought
against Guarantor, whether such action is brought against Borrower or any other
guarantor or whether Borrower or any other guarantor is joined in such action.
Guarantor hereby agrees that its liability hereunder shall be immediate and
shall not be contingent upon the exercise or enforcement by Agent of whatever
remedies they may have against Borrower or any other guarantor, or the
enforcement of any lien or realization upon any security by Agent. Guarantor
hereby agrees that any release which may be given by Agent to Borrower or any
other guarantor, or with respect to any property or asset subject to a lien,
shall not release Guarantor. Guarantor consents and agrees that Agent shall
be
under any obligation to marshal any property or assets of Borrower or any other
guarantor in favor of Guarantor, or against or in payment of any or all of
the
Guarantied Obligations.
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6. Pledge
of Collateral.
As
collateral security for the prompt satisfaction and performance of the
Guarantied Obligations, Guarantor hereby pledges, collaterally assigns and
hypothecates to Agent (for the benefit of the Lenders) a first priority
continuing security interest in and lien upon all of the membership interests
in
the Borrower and other good and valuable collateral set forth in that certain
Membership Interest Pledge Agreement of even date herewith, between the
Guarantor, Agent, and the Lenders.
7. Waivers.
(a) To
the
fullest extent permitted by applicable law, Guarantor hereby waives:
(i) notice of acceptance hereof; (ii) notice of any loans or other
financial accommodations made or extended under the Loan Agreement or Loan
Documents, or the creation or existence of any Guarantied Obligations;
(iii) notice of the amount of the Guarantied Obligations, subject, however,
to Guarantor’s right to make inquiry of Agent to ascertain the amount of the
Guarantied Obligations at any reasonable time; (iv) notice of any adverse
change in the financial condition of Borrower or of any other fact that might
increase Guarantor’s risk hereunder; (v) notice of presentment for payment,
demand, protest, and notice thereof as to any instrument among the Loan
Documents and ; (vi) notice of any Event of Default under any of the Loan
Documents; and (vii) all other notices (except if such notice is
specifically required to be given to Guarantor under this Guaranty or any other
Loan Documents to which Guarantor is a party) and demands to which Guarantor
might otherwise be entitled.
(b) To
the
fullest extent permitted by applicable law, Guarantor hereby waives the right
by
statute or otherwise to require any member of the Lenders, to institute suit
against Borrower or any other guarantor or to exhaust any rights and remedies
which any Lender, has or may have against Borrower or any other guarantor.
In
this regard, Guarantor agrees that it is bound to the payment of each and all
Guarantied Obligations, whether now existing or hereafter arising, as fully
as
if the Guarantied Obligations were directly owing to Agent, or Lenders, as
applicable, by Guarantor. Guarantor further waives any defense arising by reason
of any disability or other defense (other than the defense that the Guarantied
Obligations shall have been fully and finally performed and indefeasibly paid
in
full in cash, to the extent of any such payment) of Borrower or by reason of
the
cessation from any cause whatsoever of the liability of Borrower in respect
thereof.
(c) To
the
fullest extent permitted by applicable law, Guarantor hereby waives:
(i) any right to assert against any member of the Lenders any defense
(legal or equitable), set-off, counterclaim, or claim which Guarantor may now
or
at any time hereafter have against Borrower or any other party liable to any
Lender; (ii) any defense, set-off, counterclaim, or claim, of any kind or
nature, arising directly or indirectly from the present or future lack of
perfection, sufficiency, validity, or enforceability of the Guarantied
Obligations or any security therefor; (iii) any right or defense arising by
reason of any claim or defense based upon an election of remedies by any Lender
including any defense based upon an impairment or elimination of Guarantor’s
rights of subrogation, reimbursement, contribution, or indemnity of Guarantor
against Borrower or other guarantors or sureties; (iv) the benefit of any
statute of limitations affecting Guarantor’s liability hereunder or the
enforcement thereof, and any act which shall defer or delay the operation of
any
statute of limitations applicable to the Guarantied Obligations shall similarly
operate to defer or delay the operation of such statute of limitations
applicable to Guarantor’s liability hereunder.
(d) Until
the
Guarantied Obligations have been paid in full in cash, (i) Guarantor hereby
postpones and agrees not to exercise any right of subrogation Guarantor has
or
may have as against Borrower with respect to the Guarantied Obligations;
(ii) Guarantor hereby postpones and agrees not to exercise any right to
proceed against Borrower or any other Person now or hereafter liable on account
of the Guarantied Obligations for contribution, indemnity, reimbursement, or
any
other similar rights (irrespective of whether direct or indirect, liquidated
or
contingent); and (iii) Guarantor hereby postpones and agrees not to
exercise any right it may have to proceed or to seek recourse against or with
respect to any property or asset of Borrower or any other Person now or
hereafter liable on account of the Guarantied Obligations. Notwithstanding
anything to the contrary contained in this Guaranty, Guarantor shall not
exercise any rights of subrogation, contribution, indemnity, reimbursement
or
other similar rights against, and shall not proceed or seek recourse against
or
with respect to any property or asset of, Borrower or any other guarantor
(including after payment in full of the Guaranteed Obligations) if all or any
portion of the Obligations have been satisfied in connection with an exercise
of
remedies in respect of the membership interests of Borrower or such other
guarantor whether pursuant to the Loan Agreement or otherwise.
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(e) If
any of
the Guarantied Obligations or the obligations of Guarantor under this Guaranty
at any time are secured by a mortgage or deed of trust upon real property,
the
Agent may elect, in its sole discretion, upon a default with respect to the
Guarantied Obligations or the obligations of Guarantor under this Guaranty,
to
foreclose such mortgage or deed of trust judicially or nonjudicially in any
manner permitted by law, before or after enforcing this Guaranty, without
diminishing or affecting the liability of Guarantor hereunder. Guarantor
understands that (a) by virtue of the operation of antideficiency law
applicable to nonjudicial foreclosures, an election by Agent to nonjudicially
foreclose on such a mortgage or deed of trust probably would have the effect
of
impairing or destroying rights of subrogation, reimbursement, contribution,
or
indemnity of Guarantor against Borrower or other guarantors or sureties, and
(b) absent the waiver given by Guarantor herein, such an election would
estop Agent from enforcing this Guaranty against Guarantor. Understanding the
foregoing, and understanding that Guarantor is hereby relinquishing a defense
to
the enforceability of this Guaranty, Guarantor hereby waives any right to assert
against any Lender or Agent any defense to the enforcement of this Guaranty,
whether denominated “estoppel” or otherwise, based on or arising from an
election by Agent to nonjudicially foreclose on any such mortgage or deed of
trust or as a result of any other exercise of remedies, whether under a mortgage
or deed of trust or under any personal property security agreement. Guarantor
understands that the effect of the foregoing waiver may be that Guarantor may
have liability hereunder for amounts with respect to which Guarantor may be
left
without rights of subrogation, reimbursement, contribution, or indemnity against
Borrower or other guarantors or sureties.
(f) Without
limiting the generality of any other waiver or other provision set forth in
this
Guaranty, Guarantor waives all rights and defenses that Guarantor may have
if
all or part of the Guarantied Obligations are secured by real property. This
means, among other things:
(i) The
Agent
may collect from Guarantor without first foreclosing on any real or personal
property collateral that may be pledged by Guarantor, Borrower, or any other
guarantor.
(ii) If
Agent
forecloses on any real property collateral that may be pledged by Guarantor,
Borrower or any other guarantor:
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(1)
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The
amount of the Guarantied Obligations or any obligations of any guarantor
in respect thereof 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.
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(2)
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Agent
may collect from Guarantor even if any member of the Lenders, by
foreclosing on the real property collateral, has destroyed any right
Guarantor may have to collect from Borrower or any other
Guarantor.
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This
is
an unconditional and irrevocable waiver of any rights and defenses Guarantor
may
have if all or part of the Guarantied Obligations are secured by real
property.
(g) WITHOUT
LIMITING THE GENERALITY OF ANY OTHER WAIVER OR OTHER PROVISION SET FORTH IN
THIS
GUARANTY, GUARANTOR WAIVES ALL RIGHTS AND DEFENSES ARISING OUT OF AN ELECTION
OF
REMEDIES BY AGENT, EVEN THOUGH SUCH ELECTION OF REMEDIES, SUCH AS A NONJUDICIAL
FORECLOSURE WITH RESPECT TO SECURITY FOR THE GUARANTIED OBLIGATIONS, HAS
DESTROYED GUARANTOR’S RIGHTS OF SUBROGATION AND REIMBURSEMENT AGAINST BORROWER
BY THE OPERATION OF APPLICABLE LAW.
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(h) Without
limiting the generality of any other waiver or other provision set forth in
this
Guaranty, Guarantor hereby also agrees to the following waivers:
(i) Agent’s
right to enforce this Guaranty is absolute and is not contingent upon the
genuineness, validity or enforceability of the Guarantied Obligations or any
of
the Loan Documents. Guarantor agrees that Agent’s rights under this Guaranty
shall be enforceable even if Borrower had no liability at the time of execution
of the Loan Documents or the Guarantied Obligations are unenforceable in whole
or in part, or Borrower ceases to be liable with respect to all or any portion
of the Guarantied Obligations.
(ii) Guarantor
agrees that Agent’s rights under the Loan Documents will remain enforceable even
if the amount guaranteed hereunder is larger in amount and more burdensome
than
that for which Borrower is responsible. The enforceability of this Guaranty
against Guarantor shall continue until all sums due under the Loan Documents
have been paid in full and shall not be limited or affected in any way by any
impairment or any diminution or loss of value of any security or collateral
for
Borrower’s obligations under the Loan Documents, from whatever cause, the
failure of any security interest in any such security or collateral or any
disability or other defense of Borrower, any other guarantor of Borrower’s
obligations under any other Loan Document, any pledgor of collateral for any
person’s obligations to Agent or any other person in connection with the Loan
Documents.
(iii) Guarantor
waives the right to require Agent to (A) proceed against Borrower, any
guarantor of Borrower’s obligations under any Loan Document, any other pledgor
of collateral for any person’s obligations to Agent or any other person in
connection with the Guarantied Obligations, (B) proceed against or exhaust
any other security or collateral Agent may hold, or (C) pursue any other
right or remedy for Guarantor’s benefit, and agrees that Agent may exercise its
right under this Guaranty without taking any action against Borrower, any other
guarantor of Borrower’s obligations under the Loan Documents, any pledgor of
collateral for any person’s obligations to Agent or any other person in
connection with the Guarantied Obligations, and without proceeding against
or
exhausting any security or collateral Agent holds.
8. Releases.
Guarantor consents and agrees that, without notice to or by Guarantor and
without affecting or impairing the obligations of Guarantor hereunder, Agent
may, by action or inaction, compromise or settle, shorten or extend the maturity
date or any other period of duration or the time for the payment of the
Guarantied Obligations, or discharge the performance of the Guarantied
Obligations, or may refuse to enforce the Guarantied Obligations, or otherwise
elect not to enforce the Guarantied Obligations, or may, by action or inaction,
release all or any one or more parties to, any one or more of the terms and
provisions of the Loan Agreement or any of the other Loan Documents or may
grant
other indulgences to Borrower or any other guarantor in respect thereof, or
may
amend or modify in any manner and at any time (or from time to time) any one
or
more of the Guarantied Obligations, the Loan Agreement or any other Loan
Document (including any increase or decrease in the principal amount of any
Guarantied Obligations or the interest, fees or other amounts that may accrue
from time to time in respect thereof), or may, by action or inaction, release
or
substitute the Borrower or any guarantor, if any, of the Guarantied Obligations,
or may enforce, exchange, release, or waive, by action or inaction, any security
for the Guarantied Obligations or any other guaranty of the Guarantied
Obligations, or any portion thereof.
9. No
Election.
Agent
on behalf of Lenders shall have the right to seek recourse against Guarantor
to
the fullest extent provided for herein and no election to proceed in one form
of
action or proceeding, or against any party, or on any obligation, shall
constitute a waiver of Agent’s right to proceed in any other form of action or
proceeding or against other parties unless Agent, on behalf of the Lenders,
has
expressly waived such right in writing. Specifically, but without limiting
the
generality of the foregoing, no action or proceeding by Agent under any document
or instrument evidencing the Guarantied Obligations shall serve to diminish
the
liability of Guarantor under this Guaranty except to the extent that the Lenders
finally and unconditionally shall have realized indefeasible payment in full
of
the Guarantied Obligations by such action or proceeding.
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10. Revival
and Reinstatement.
If the
incurrence or payment of the Guarantied Obligations or the obligations of
Guarantor under this Guaranty by Guarantor or the transfer by Guarantor to
Agent
of any property of Guarantor should for any reason subsequently be declared
to
be void or voidable under any state or federal law relating to creditors’
rights, including provisions of the Bankruptcy Code relating to fraudulent
conveyances, preferences, or other voidable or recoverable payments of money
or
transfers of property (collectively, a “Voidable
Transfer”),
and
if the Lenders are required to repay or restore, in whole or in part, any such
Voidable Transfer, or elects to do so upon the reasonable advice of its counsel,
then, as to any such Voidable Transfer, or the amount thereof that the Lenders
are required or elects to repay or restore, and as to all reasonable costs,
expenses, and attorneys fees of the Lenders and Agents related thereto, the
liability of Guarantor automatically shall be revived, reinstated, and restored
and shall exist as though such Voidable Transfer had never been
made.
11. Business
Activity of Guarantor.
Guarantor represents and warrants to the Agent and Lenders that as of the date
of this Guaranty, (a) the sole asset of the Guarantor consists of 100%
membership interest in the Borrower and (b) the sole business activity of the
Guarantor consists of holding title to such membership interest in the Borrower.
Guarantor covenants and promises to the Agent and Lenders that so long as this
Guaranty shall remain in effect, (i) the sole asset of the Guarantor will
consist of 100% membership interest in the Borrower and (ii) the sole business
activity of the Guarantor will consist of holding title to such membership
interest in the Borrower. If at any time Guarantor breaches any representation,
warranty, covenant or promise contained in this Section
11,
then
such breach shall constitute an immediate Event of Default under the Loan
Agreement and this Guaranty, and the result of such Event of Default shall
afford Agent and Lenders with all remedies at law, in equity and as otherwise
contained in the Loan Agreement, this Guaranty and any other Loan
Document.
12. Financial
Condition of Borrower.
Guarantor represents and warrants that it is currently informed of the financial
condition of Borrower and of all other circumstances which a diligent inquiry
would reveal and which bear upon the risk of nonpayment of the Guarantied
Obligations. Guarantor further represents and warrants that it has read and
understands the terms and conditions of the Loan Agreement and Loan Documents.
Guarantor hereby covenants that it will continue to keep itself informed of
Borrower’s financial condition, the financial condition of other guarantors, if
any, and of all other circumstances which bear upon the risk of nonpayment
or
nonperformance of the Guarantied Obligations.
13. Payments;
Application.
All
payments to be made hereunder by Guarantor shall be made in US Dollars, in
immediately available funds, and without deduction (whether for taxes or
otherwise) or offset and shall be applied to the Guarantied Obligations in
accordance with the terms of the Loan Agreement and Loan Documents.
14. Attorneys
Fees and Costs.
Guarantor agrees to pay, on demand, all attorneys fees (provided that the
Guarantors shall not be required to reimburse the legal fees and expenses of
more than one law firm and any specialists and local counsel to be selected
by
Agent for all Persons indemnified under this Section 13) and all other costs
and
expenses which may be incurred by Agent or Lenders in connection with the
enforcement of this Guaranty or in any way arising out of, or consequential
to,
the protection, assertion, or enforcement of the Guarantied Obligations (or
any
security therefor), irrespective of whether suit is brought.
15. Notices.
All
notices and other communications hereunder to Agent shall be in writing and
shall be mailed, sent, or delivered in accordance with Section
15.4
of the
Loan Agreement. All notices and other communications hereunder to Guarantor
shall be in writing and shall be mailed, sent, or delivered in care of Borrower
in accordance with Section
15.4
of the
Loan Agreement.
16. Cumulative
Remedies.
No
remedy under this Guaranty, under the Loan Agreement, or any other Loan Document
is intended to be exclusive of any other remedy, but each and every remedy
shall
be cumulative and in addition to any and every other remedy given under this
Guaranty, under the Loan Agreement, or any other Loan Document, and those
provided by law. No delay or omission by the Agent on behalf of Lenders to
exercise any right under this Guaranty shall impair any such right nor be
construed to be a waiver thereof. No failure on the part of Agent to exercise,
and no delay in exercising, any right under this Guaranty shall operate as
a
waiver thereof; nor shall any single or partial exercise of any right under
this
Guaranty preclude any other or further exercise thereof or the exercise of
any
other right.
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17. Severability
of Provisions.
Each
provision of this Guaranty shall be severable from every other provision of
this
Guaranty for the purpose of determining the legal enforceability of any specific
provision.
18. Entire
Agreement; Amendments.
This
Guaranty constitutes the entire agreement between parties pertaining to the
subject matter contained herein. This Guaranty may not be altered, amended,
or
modified, nor may any provision hereof be waived or noncompliance therewith
consented to, except by means of a writing executed by Guarantor and Agent,
on
behalf of the Lenders. Any such alteration, amendment, modification, waiver,
or
consent shall be effective only to the extent specified therein and for the
specific purpose for which given. No course of dealing and no delay or waiver
of
any right or default under this Guaranty shall be deemed a waiver of any other,
similar or dissimilar, right or default or otherwise prejudice the rights and
remedies hereunder.
19. Successors
and Assigns.
This
Guaranty shall be binding upon Guarantor and its successors and assigns and
shall inure to the benefit of the successors and assigns of the Agent and
Lenders; provided,
however,
Guarantor shall not assign this Guaranty or delegate any of its duties hereunder
without Agent’s prior written consent and any unconsented to assignment shall be
absolutely null and void. In the event of any assignment, participation, or
other transfer of rights by the Agent and Lenders, the rights and benefits
herein conferred upon the Agent and Lenders shall automatically extend to and
be
vested in such assignee or other transferee.
20. No
Third Party Beneficiary.
This
Guaranty is solely for the benefit of the Lenders (as represented by Agent)
and
each of their successors and assigns and may not be relied on by any other
Person.
21. CHOICE
OF LAW AND VENUE; JURY TRIAL WAIVER.
THE
VALIDITY OF THIS GUARANTY, THE CONSTRUCTION, INTERPRETATION, AND ENFORCEMENT
HEREOF, AND THE RIGHTS OF THE PARTIES HERETO WITH RESPECT TO ALL MATTERS ARISING
HEREUNDER OR RELATED HERETO SHALL BE DETERMINED UNDER, GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
THE
PARTIES AGREE THAT ALL ACTIONS OR PROCEEDINGS ARISING IN CONNECTION WITH THIS
GUARANTY SHALL BE TRIED AND LITIGATED ONLY IN THE STATE AND, TO THE EXTENT
PERMITTED BY APPLICABLE LAW, FEDERAL COURTS LOCATED IN THE STATE OF NEW YORK,
PROVIDED, HOWEVER, THAT ANY SUIT SEEKING ENFORCEMENT AGAINST ANY COLLATERAL
OR
OTHER PROPERTY MAY BE BROUGHT, AT AGENT’S OPTION, IN THE COURTS OF ANY
JURISDICTION WHERE AGENT ELECTS TO BRING SUCH ACTION OR WHERE SUCH COLLATERAL
OR
OTHER PROPERTY MAY BE FOUND. GUARANTOR AND THE LENDERS WAIVE, TO THE EXTENT
PERMITTED UNDER APPLICABLE LAW, ANY RIGHT EACH MAY HAVE TO ASSERT THE DOCTRINE
OF FORUM NON CONVENIENS OR TO OBJECT TO VENUE TO THE EXTENT ANY PROCEEDING
IS
BROUGHT IN ACCORDANCE WITH THIS SECTION
21.
GUARANTOR,
AGENT, AND LENDERS HEREBY WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF
ANY
CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS GUARANTY OR ANY
OF
THE TRANSACTIONS CONTEMPLATED HEREIN, INCLUDING CONTRACT CLAIMS, TORT CLAIMS,
BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW OR STATUTORY CLAIMS. GUARANTOR
AND LENDERS REPRESENT THAT EACH HAS REVIEWED THIS WAIVER AND EACH KNOWINGLY
AND
VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL
COUNSEL. IN THE EVENT OF LITIGATION, A COPY OF THIS SECTION MAY BE FILED AS
A
WRITTEN CONSENT TO A TRIAL BY THE COURT.
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22. Counterparts;
Telefacsimile and other Electronic Execution.
This
Guaranty may be executed in any number of counterparts and by different parties
on separate counterparts, each of which, when executed and delivered, shall
be
deemed to be an original, and all of which, when taken together, shall
constitute but one and the same Guaranty. Delivery of an executed counterpart
of
this Guaranty by telefacsimile and other electronic transmission shall be
equally as effective as delivery of an original executed counterpart of this
Guaranty. Any party delivering an executed counterpart of this Guaranty by
telefacsimile and other electronic transmission also shall deliver an original
executed counterpart of this Guaranty but the failure to deliver an original
executed counterpart shall not affect the validity, enforceability, and binding
effect of this Guaranty.
23. Agreement
to be Bound.
Guarantor hereby agrees to be bound by each and all of the terms and provisions
of the Loan Agreement and Loan Documents applicable to Guarantor. Without
limiting the generality of the foregoing, by its execution and delivery of
this
Guaranty, Guarantor hereby: (a) makes to the Lenders and Agent each of the
representations and warranties set forth in the Loan Agreement and Loan
Documents applicable to Borrower fully as though Guarantor was the Borrower
thereunder, and such representations and warranties are incorporated herein
by
this reference, mutatis
mutandis;
and
(b) agrees and covenants (i) to do each of the things set forth in the
Loan Agreement that Borrower agrees and covenants to do as if the Guarantor
was
the Borrower thereunder, and (ii) to not do each of the things set forth in
the Loan Agreement that Borrower agrees and covenants not to do as if the
Guarantor was the Borrower thereunder, in each case, fully as though Guarantor
was a party thereto, and such agreements and covenants are incorporated herein
by this reference, mutatis
mutandis.
[Signature
page to follow]
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9
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IN
WITNESS WHEREOF,
the
undersigned has executed and delivered this Guaranty as of the date first
written above.
|
GUARANTOR:
|
|
|
HYDROGEN
CORPORATION
a
Nevada corporation
|
|
|
By:
|
/s/
Xxxx X. Xxxxx
|
|
Title:
|
Chief Executive Officer |
|
AGENT:
|
|
|
FEDERATED
XXXXXXXX FUND
a
portfolio of Federated Equity Funds
|
|
|
By:
|
/s/
Xxxxxxxx Xxxxxxx
|
|
Title:
|
Vice President |
[Signature
Page to Guaranty]
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