Exhibit 10.2


 


CONTINUING GUARANTY


 


TO:         WELLS FARGO BANK, NATIONAL
ASSOCIATION


 


1.             GUARANTY;
DEFINITIONS.  In
consideration of any credit or other financial accommodation heretofore, now or
hereafter extended or made to BADGER TRANSPORT, INC., a Wisconsin corporation
(“Badger Transport”), BRAD FOOTE GEAR WORKS, INC., an Illinois corporation
(“Brad Foote”), ENERGY MAINTENANCE SERVICE, LLC, a Delaware limited
liability company (“Energy Maintenance”), and TOWER TECH SYSTEMS INC., a
Wisconsin corporation (“Tower Tech” and together with Badger Transport, Brad
Foote and Energy Maintenance, collectively, “Customer”), by WELLS FARGO BANK,
NATIONAL ASSOCIATION (together with all its participants, successors and
assigns, “WFBC”), acting through its Wells Fargo Business Credit operating
division, and for other valuable consideration, the undersigned BROADWIND
ENERGY, INC., a Delaware corporation (“Guarantor”), jointly and severally
unconditionally guarantees and promises to pay to WFBC, or order, on demand in
lawful money of the United States of America and in immediately available
funds, any and all Obligations.  The term
“Obligations” is used in its most comprehensive sense and means any debts,
obligations and liabilities of Customer to WFBC, whether incurred in the past,
present or future, whether voluntary or involuntary, and however arising, and
whether due or not due, absolute or contingent, liquidated or unliquidated,
determined or undetermined, whether or not Customer may be liable individually
or jointly or jointly and severally with others, or whether recovery upon such
Obligations may subsequently become unenforceable.  This Guaranty is a guaranty of payment and
not collection.


 


2.             SUCCESSIVE
TRANSACTIONS; REVOCATION; OBLIGATION UNDER OTHER GUARANTIES.  This is a continuing guaranty and all rights,
powers and remedies hereunder shall apply to all past, present and future
Obligations, including those arising under successive transactions which shall
either continue the Obligations, increase or decrease them, or from time to
time create new Obligations after all or any prior Obligations have been
satisfied, and notwithstanding the death, incapacity, dissolution, liquidation
or bankruptcy of Customer or Guarantor or any other event or proceeding
affecting either Customer or Guarantor. 
This Guaranty shall not apply to any new Obligations created after
actual receipt by WFBC of written notice of Guarantor’s revocation as to such
new Obligations; provided, however, that credit or other financial
accommodations made by WFBC to Customer after revocation under commitments
existing prior to receipt by WFBC of such revocation, and extensions, renewals
or modifications, of any kind, of Obligations incurred by Customer or committed
by WFBC prior to receipt by WFBC of such notice of revocation, shall not be
considered new Obligations.  Any such
notice must be sent to WFBC by registered U.S. mail, postage prepaid, addressed
to its office at Wells Fargo Bank, National Association, MAC C7300-060, 1740
Broadway, 6th Floor, Denver, Colorado 
80274, Attention: Monica Sorrels, or at such other address as WFBC shall
from time to time designate.  Any payment
made by Guarantor under this Guaranty shall be effective to reduce or discharge
Guarantor’s maximum obligation hereunder only if accompanied by a written
notice to that effect, received by WFBC, advising WFBC that such payment is
made under this Guaranty for such purpose. 
The obligations of Guarantor under this Guaranty shall be in addition to
any obligations of Guarantor under any other guaranties of any liabilities or
obligations of Customer or other Persons that may be given to WFBC at any time,
unless the other guaranties are expressly modified or revoked in writing; and
this Guaranty shall not, unless 


 

















 


expressly
provided for in this Guaranty, affect or invalidate any such other
guaranties.  As used herein, “Person”
means any individual, corporation, partnership, joint venture, limited
liability company, association, joint stock company, trust, unincorporated
organization or government or any agency or political subdivision of a
governmental entity.


 


3.             OBLIGATIONS
JOINT AND SEVERAL; SEPARATE ACTIONS; WAIVER OF STATUTE OF LIMITATIONS;
REINSTATEMENT OF LIABILITY.  The obligations of Guarantor under this
Guaranty are joint and several and independent of the obligations of Customer,
and a separate action or actions may be brought and prosecuted against
Guarantor, whether the action is brought against Customer or other Persons, or
whether Customer or other Persons are joined in any such action or
actions.  Guarantor acknowledges that
this Guaranty is absolute and unconditional, that there are no conditions
precedent to the effectiveness of this Guaranty, and that this Guaranty is in
full force and effect and binding on Guarantor as of the date written below,
regardless of whether WFBC obtains collateral or any guaranties from others or
takes any other action contemplated by Guarantor.  Guarantor waives the benefit of any statute
of limitations affecting the enforcement of Guarantor’s liability under this
Guaranty, and Guarantor agrees that any payment of any Obligations or other act
which shall toll any applicable statute of limitations shall similarly toll the
statute of limitations applicable to Guarantor’s liability under this Guaranty.  The liability of Guarantor hereunder shall be
reinstated and revived and the rights of WFBC shall continue if and to the
extent for any reason any amount at any time paid on account of any Obligations
guaranteed hereby is rescinded or must otherwise be restored by WFBC, whether
as a result of any proceedings in bankruptcy or reorganization or otherwise,
all as though such amount had not been paid. 
The determination as to whether any amount so paid must be rescinded or
restored shall be made by WFBC in its sole discretion; provided, however, that
if WFBC chooses to contest any such matter at the request of Guarantor,
Guarantor agrees to indemnify and hold WFBC harmless from and against all costs
and expenses, including reasonable attorneys’ fees, expended or incurred by
WFBC in connection therewith, including without limitation, in any litigation
with respect thereto.


 


4.             AUTHORIZATIONS
TO WFBC.  Guarantor authorizes WFBC
either before or after revocation hereof, without notice to or demand on
Guarantor, and without affecting Guarantor’s liability hereunder, from time to
time to: (a) alter, compromise, renew, extend, accelerate or otherwise
change the time for payment of, or otherwise change the terms of the
Obligations or any portion thereof, including increase or decrease of the rate
of interest thereon; (b) take and hold security for the payment of this
Guaranty or the Obligations or any portion thereof, and exchange, enforce,
waive, subordinate or release any such security; (c) apply such security
and direct the order or manner of sale thereof, including without limitation, a
non-judicial sale permitted by the terms of the controlling security agreement,
mortgage or deed of trust, as WFBC in its discretion may determine; (d) release
or substitute any one or more of the endorsers or any other guarantors of the
Obligations, or any portion thereof, or any other party thereto; and (e) apply
payments received by WFBC from Customer to any portion of the Obligations, in
such order as WFBC shall determine in its sole discretion, whether or not such
Obligations are covered by this Guaranty, and Guarantor hereby waives any
provision of law regarding application of payments which specifies
otherwise.  WFBC may without notice assign
this Guaranty in whole or in part.  Upon
WFBC’s request, Guarantor agrees to provide to WFBC copies of Guarantor’s
financial statements.


 


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5.             REPRESENTATIONS,
WARRANTIES AND COVENANTS. 
Guarantor represents, warrants and covenants to WFBC that: (a) this
Guaranty is executed at Customer’s request; (b) Guarantor shall not,
without WFBC’s prior written consent, sell or otherwise dispose of all or
substantially all of Guarantor’s assets other than in the ordinary course of
Guarantor’s business; (c) WFBC has made no representation to Guarantor as
to the creditworthiness of Customer; and (d) Guarantor has established
adequate means of obtaining from Customer on a continuing basis financial and
other information pertaining to Customer’s financial condition.  Guarantor agrees to keep adequately informed
of any facts, events or circumstances which might in any way affect Guarantor’s
liability under this Guaranty, and Guarantor further agrees that WFBC shall
have no obligation to disclose to Guarantor any information or material about
Customer which is acquired by WFBC in any manner.


 


6.             GUARANTOR’S
WAIVERS.


 


(a)           Guarantor
waives any right to require WFBC to: (i) proceed against Customer or any
other Person; (ii) marshal assets or proceed against or exhaust any
security granted by Customer or any other Person; (iii) give notice of the
terms, time and place of any public or private sale or other disposition of
personal property security granted by Customer or any other Person; (iv) take
any other action or pursue any other remedy in WFBC’s power; or (v) make
any presentment or demand for performance, or give any notice of
nonperformance, protest, notice of protest or notice of dishonor hereunder or
in connection with any obligations or evidences of indebtedness held by WFBC as
security for or which constitute in whole or in part the Obligations guaranteed
hereunder, or in connection with the creation of new or additional Obligations.


 


(b)           Guarantor
waives any defense to its obligations hereunder based upon or arising by reason
of: (i) any disability or other defense of Customer or any other Person; (ii) the
cessation or limitation from any cause whatsoever, other than payment in full,
of the Obligations or the indebtedness of any other Person; (iii) any lack
of authority of any officer, director, partner, agent or any other Person
acting or purporting to act on behalf of Customer, if it is a corporation,
partnership or other type of entity, or any defect in the formation of
Customer; (iv) the application by Customer of the proceeds of any
Obligations for purposes other than the purposes represented by Customer to, or
intended or understood by, WFBC or Guarantor; (v) any act or omission by
WFBC which directly or indirectly results in or aids the discharge of Customer
or any portion of the Obligations by operation of law or otherwise, or which in
any way impairs or suspends any rights or remedies of WFBC against Customer; (vi) any
impairment of the value of any interest in any security for the Obligations or
any portion thereof, including without limitation, the failure to obtain or
maintain perfection or recordation of any interest in any such security, the
release of any such security without substitution, or the failure to preserve
the value of, or to comply with applicable law in disposing of, any such
security; (vii) any modification of the Obligations, in any form
whatsoever, including any modification made after revocation hereof to any
Obligations incurred prior to such revocation, and including without limitation
the renewal, extension, acceleration or other change in time for payment of, or
other change in the terms of, the Obligations or any portion thereof; or (viii) any
requirement that WFBC give any notice of acceptance of this Guaranty.  Until all Obligations have been paid in full,
Guarantor shall have no right of subrogation, and Guarantor waives any right to
enforce any remedy which WFBC now has or may hereafter have against Customer or
any other Person, and 


 


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waives
any benefit of, or any right to participate in, any security now or hereafter
held by WFBC.  Guarantor further waives
all rights and defenses Guarantor may have arising out of (A) any election
of remedies by WFBC, even though that election of remedies, such as a
non-judicial foreclosure with respect to any security for any portion of the
Obligations, destroys Guarantor’s rights of subrogation or Guarantor’s rights
to proceed against Customer for reimbursement, or (B) any loss of rights
Guarantor may suffer by reason of any rights, powers or remedies of Customer in
connection with any anti-deficiency laws or any other laws limiting, qualifying
or discharging the Obligations, whether by operation of law or otherwise,
including any rights Guarantor may have to a fair market value hearing to
determine the size of a deficiency following any foreclosure sale or other
disposition of any real property security for any portion of the Obligations.


 


7.             WFBC’S RIGHTS
WITH RESPECT TO GUARANTOR’S PROPERTY IN WFBC’S POSSESSION.  In addition to all liens upon and rights of
setoff against the monies, securities or other property of Guarantor given to
WFBC by law, WFBC shall have a lien upon and a right of setoff against all
monies, securities and other property of Guarantor now or hereafter in the
possession of or on deposit with WFBC, whether held in a general or special
account or deposit or for safekeeping or otherwise, and every such lien and
right of setoff may be exercised without demand upon or prior notice to
Guarantor.  WFBC agrees promptly to
notify Guarantor after any such setoff and application made by WFBC.  No lien or right of setoff shall be deemed to
have been waived by any act or conduct on the part of WFBC, or by any neglect
to exercise such right of setoff or to enforce such lien, or by any delay in so
doing, and every right of setoff and lien shall continue in full force and
effect until such right of setoff or lien is specifically waived or released by
WFBC in writing.


 


8.             SUBORDINATION.  Any indebtedness of Customer now or hereafter
held by Guarantor is hereby subordinated to the Obligations.  Such indebtedness of Customer to Guarantor is
assigned to WFBC as security for this Guaranty and the Obligations and, if WFBC
requests, upon the occurrence of an Event of Termination, shall be collected
and received by Guarantor as trustee for WFBC and paid over to WFBC on account
of the Obligations but without reducing or affecting in any manner the
liability of Guarantor under the other provisions of this Guaranty.  Any notes or other instruments now or
hereafter evidencing such indebtedness of Customer to Guarantor shall be marked
with a legend that indicates that the notes or other instruments are subject to
this Guaranty and, if WFBC so requests, such notes and instruments shall be
delivered to WFBC.  WFBC is hereby
authorized in the name of Guarantor from time to time to file financing
statements and continuation statements and execute such other documents and
take such other action as WFBC deems necessary or appropriate to perfect,
preserve and enforce its rights hereunder.


 


9.             REMEDIES; NO
WAIVER.  All rights, powers and
remedies of WFBC hereunder are cumulative. 
No delay, failure or discontinuance of WFBC in exercising any right,
power or remedy hereunder shall affect or operate as a waiver of such right,
power or remedy; nor shall any single or partial exercise of any such right,
power or remedy preclude, waive or otherwise affect any other or further
exercise thereof or the exercise of any other right, power or remedy.  Any waiver, permit, consent or approval of
any kind by WFBC of any breach of this Guaranty, or any such waiver of any
provisions or conditions hereof, must be in writing and shall be effective only
to the extent set forth in writing.


 


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10.           COSTS, EXPENSES
AND ATTORNEYS’ FEES.  Guarantor
shall pay to WFBC immediately upon demand the full amount of all payments,
advances, charges, costs and expenses, including reasonable attorneys’ fees (to
include outside counsel fees and all allocated costs of WFBC’s in-house
counsel), expended or incurred by WFBC in connection with the enforcement of
any of WFBC’s rights, powers or remedies or the collection of any amounts which
become due to WFBC under this Guaranty, and the prosecution or defense of any
action in any way related to this Guaranty, whether incurred at the trial or
appellate level, in an arbitration proceeding or otherwise, and including any
of the foregoing incurred in connection with any bankruptcy proceeding
(including without limitation, any adversary proceeding, contested matter or
motion brought by WFBC or any other Person) relating to Guarantor or any other
Person.  All of the foregoing shall be
paid by Guarantor with interest from the date of demand until paid in full at a
rate per annum equal to the greater of ten percent (10%) or WFBC’s Prime Rate
in effect from time to time.


 


11.           SUCCESSORS;
ASSIGNMENT.  This
Guaranty shall be binding upon and inure to the benefit of the heirs,
executors, administrators, legal representatives, successors and assigns of the
parties; provided, however, that Guarantor may not assign or transfer any of
its interests or rights hereunder without WFBC’s prior written consent.  Guarantor acknowledges that WFBC has the
right to sell, assign, transfer, negotiate or grant participations in all or
any part of, or any interest in, the Obligations and any obligations with
respect thereto, including this Guaranty. 
In connection therewith, subject to all confidentiality agreements of
WFBC in favor of Customer and its affiliates, WFBC may disclose all documents
and information which WFBC now has or hereafter acquires relating to Guarantor
or this Guaranty, whether furnished by Customer, Guarantor or otherwise.  Guarantor further agrees that WFBC may
disclose such documents and information to Customer.


 


12.           AMENDMENT.  This Guaranty may be amended or modified only
in writing signed by WFBC and Guarantor.


 


13.           INTERPRETATION.  All references to the term “Customer” herein
shall refer to each of Badger Transport, Brad Foote, Energy Maintenance and
Tower Tech separately and to all of them jointly where context and construction
so require.  When this Guaranty is
executed by more than one Guarantor, the word “Guarantor” shall mean all or any
one or more of them as the context requires. 
Unless the context clearly requires otherwise, the word “or” has the
inclusive meaning represented by the phrase “and/or”.


 


14.           UNDERSTANDING
WITH RESPECT TO WAIVERS; SEVERABILITY OF PROVISIONS.  Guarantor warrants and agrees that each of
the waivers set forth herein 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 waiver or other provision of this
Guaranty shall be held to be prohibited by or invalid under applicable public
policy or law, such waiver or other provision shall be ineffective only to the
extent of such prohibition or invalidity, without invalidating the remainder of
such waiver or other provision or any remaining provisions of this Guaranty.


 


15.           GOVERNING LAW.  This Guaranty shall be governed by and
construed in accordance with the laws of the State of Colorado.


 


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16.           WAIVER
OF JURY TRIAL. GUARANTOR IRREVOCABLY
WAIVES ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM
ARISING OUT OF, BASED ON OR PERTAINING TO THIS GUARANTY.


 


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IN
WITNESS WHEREOF, the undersigned Guarantor has executed this Guaranty as of September 28,
2010.


 


	
   

  	
  BROADWIND
  ENERGY, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:
  

  	
  Stephanie
  Kushner

  
	
   

  	
  Its:
  

  	
  Vice
  President and Chief Financial Officer

  



 


Signature
Page to Guaranty