Exhibit 10.3


 


FORM OF CONTINUING GUARANTY


TO BE EXECUTED BY CERTAIN SUBSIDIARIES OF


BROADWIND ENERGY, INC.


 


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
[                                        
                                  ]  (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
[                                              ]
(“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.             LIMITATION;
INSOLVENCY LAWS.  As used in
this paragraph:  (a) the term “Applicable
Insolvency Laws” means the laws of the United States of America, or of any
state, province, nation or other governmental unit relating to bankruptcy,
reorganization, arrangement, adjustment of debts, relief of debtors,
dissolution, insolvency, fraudulent transfers or conveyances or other similar
laws (including, without limitation, 11 U.S.C. §547, §548, §550 and other “avoidance”
provisions of Title 11 of the United Stated Code) as applicable in any
proceeding in which the validity or enforceability of this Guaranty or any
Specified Lien is in issue; and (b) “Specified Lien” means any security
interest, mortgage, lien or encumbrance securing this Guaranty, in whole or in
part.  Notwithstanding any other
provision of this Guaranty, if, in any proceeding, a court of competent
jurisdiction determines that this Guaranty or any Specified Lien would, but for
the operation of this paragraph, be subject to avoidance or recovery or be
unenforceable by reason of Applicable Insolvency Laws, this Guaranty and each
such Specified Lien shall be valid and enforceable only to the maximum extent
that would not cause this Guaranty or such Specified Lien to be subject to
avoidance, recovery or unenforceability. 
To the extent that any payment to, or realization by, WFBC on the
guaranteed Obligations exceeds the limitations of this paragraph and is
otherwise subject to avoidance and recovery in any such proceeding, the amount
subject to avoidance shall in all events be limited to the amount by which such
actual payment or realization exceeds such limitation, and this Guaranty as
limited shall in all events remain in full force and effect and be fully
enforceable against Guarantor.  This
paragraph is intended solely to reserve the rights of WFBC hereunder against
Guarantor in such proceeding to the maximum extent permitted by Applicable Insolvency
Laws and neither Guarantor, Customer, any other guarantor of the Obligations,
nor any other Person shall have any right, claim or defense under this
paragraph that would not otherwise be available under Applicable Insolvency
Laws in such proceeding.  The Obligations
may be created and continued in any amount, whether or not in excess of the
amount not subject to avoidance, without affecting or impairing Guarantor’s
liability hereunder, and WFBC may pay (or allow for the payment of) the excess
out of any sums received by or available to WFBC on account of the Obligations
from Customer or any other Person (except Guarantor), from their properties,
out of any collateral security or from any other source, and such payment (or
allowance) shall not reduce, affect or impair Guarantor’s liability hereunder.


 


4.             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 


 


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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.


 


5.             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.


 


6.             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.


 


7.             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 


 


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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 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.


 


8.             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 


 


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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.


 


9.             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.


 


10.           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.


 


11.           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.


 


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12.           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.


 


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


 


14.           INTERPRETATION.  All references to the term “Customer” herein
shall refer to each of
[                                      ]
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”.


 


15.           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.


 


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


 


17.           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.


 


	
   

  	
  [                                                    ]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Its:  Authorized Signatory

  



 


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