**Exhibit 10.2**

 

**CONTINUING GUARANTY**

 

TO:         WELLS FARGO BANK, NATIONALASSOCIATION

 

1.             GUARANTY;DEFINITIONS.  Inconsideration of any credit or other financial accommodation heretofore, now orhereafter 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 limitedliability company (“Energy Maintenance”), and TOWER TECH SYSTEMS INC., aWisconsin corporation (“Tower Tech” and together with Badger Transport, BradFoote and Energy Maintenance, collectively, “Customer”), by WELLS FARGO BANK,NATIONAL ASSOCIATION (together with all its participants, successors andassigns, “WFBC”), acting through its Wells Fargo Business Credit operatingdivision, and for other valuable consideration, the undersigned BROADWINDENERGY, INC., a Delaware corporation (“Guarantor”), jointly and severallyunconditionally guarantees and promises to pay to WFBC, or order, on demand inlawful money of the United States of America and in immediately availablefunds, 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, andwhether due or not due, absolute or contingent, liquidated or unliquidated,determined or undetermined, whether or not Customer may be liable individuallyor jointly or jointly and severally with others, or whether recovery upon suchObligations may subsequently become unenforceable.  This Guaranty is a guaranty of payment andnot collection.

 

2.             SUCCESSIVETRANSACTIONS; REVOCATION; OBLIGATION UNDER OTHER GUARANTIES.  This is a continuing guaranty and all rights,powers and remedies hereunder shall apply to all past, present and futureObligations, including those arising under successive transactions which shalleither continue the Obligations, increase or decrease them, or from time totime create new Obligations after all or any prior Obligations have beensatisfied, and notwithstanding the death, incapacity, dissolution, liquidationor bankruptcy of Customer or Guarantor or any other event or proceedingaffecting either Customer or Guarantor. This Guaranty shall not apply to any new Obligations created afteractual receipt by WFBC of written notice of Guarantor’s revocation as to suchnew Obligations; provided, however, that credit or other financialaccommodations made by WFBC to Customer after revocation under commitmentsexisting prior to receipt by WFBC of such revocation, and extensions, renewalsor modifications, of any kind, of Obligations incurred by Customer or committedby WFBC prior to receipt by WFBC of such notice of revocation, shall not beconsidered new Obligations.  Any suchnotice must be sent to WFBC by registered U.S. mail, postage prepaid, addressedto its office at Wells Fargo Bank, National Association, MAC C7300-060, 1740Broadway, 6th Floor, Denver, Colorado 80274, Attention: Monica Sorrels, or at such other address as WFBC shallfrom time to time designate.  Any paymentmade by Guarantor under this Guaranty shall be effective to reduce or dischargeGuarantor’s maximum obligation hereunder only if accompanied by a writtennotice to that effect, received by WFBC, advising WFBC that such payment ismade under this Guaranty for such purpose. The obligations of Guarantor under this Guaranty shall be in addition toany obligations of Guarantor under any other guaranties of any liabilities orobligations 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; andthis Guaranty shall not, unless 

 

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expresslyprovided for in this Guaranty, affect or invalidate any such otherguaranties.  As used herein, “Person”means any individual, corporation, partnership, joint venture, limitedliability company, association, joint stock company, trust, unincorporatedorganization or government or any agency or political subdivision of agovernmental entity.

 

3.             OBLIGATIONSJOINT AND SEVERAL; SEPARATE ACTIONS; WAIVER OF STATUTE OF LIMITATIONS;REINSTATEMENT OF LIABILITY.  The obligations of Guarantor under thisGuaranty are joint and several and independent of the obligations of Customer,and a separate action or actions may be brought and prosecuted againstGuarantor, whether the action is brought against Customer or other Persons, orwhether Customer or other Persons are joined in any such action oractions.  Guarantor acknowledges thatthis Guaranty is absolute and unconditional, that there are no conditionsprecedent to the effectiveness of this Guaranty, and that this Guaranty is infull force and effect and binding on Guarantor as of the date written below,regardless of whether WFBC obtains collateral or any guaranties from others ortakes any other action contemplated by Guarantor.  Guarantor waives the benefit of any statuteof limitations affecting the enforcement of Guarantor’s liability under thisGuaranty, and Guarantor agrees that any payment of any Obligations or other actwhich shall toll any applicable statute of limitations shall similarly toll thestatute of limitations applicable to Guarantor’s liability under this Guaranty.  The liability of Guarantor hereunder shall bereinstated and revived and the rights of WFBC shall continue if and to theextent for any reason any amount at any time paid on account of any Obligationsguaranteed hereby is rescinded or must otherwise be restored by WFBC, whetheras 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 orrestored shall be made by WFBC in its sole discretion; provided, however, thatif WFBC chooses to contest any such matter at the request of Guarantor,Guarantor agrees to indemnify and hold WFBC harmless from and against all costsand expenses, including reasonable attorneys’ fees, expended or incurred byWFBC in connection therewith, including without limitation, in any litigationwith respect thereto.

 

4.             AUTHORIZATIONSTO WFBC.  Guarantor authorizes WFBCeither before or after revocation hereof, without notice to or demand onGuarantor, and without affecting Guarantor’s liability hereunder, from time totime to: (a) alter, compromise, renew, extend, accelerate or otherwisechange the time for payment of, or otherwise change the terms of theObligations or any portion thereof, including increase or decrease of the rateof interest thereon; (b) take and hold security for the payment of thisGuaranty or the Obligations or any portion thereof, and exchange, enforce,waive, subordinate or release any such security; (c) apply such securityand direct the order or manner of sale thereof, including without limitation, anon-judicial sale permitted by the terms of the controlling security agreement,mortgage or deed of trust, as WFBC in its discretion may determine; (d) releaseor substitute any one or more of the endorsers or any other guarantors of theObligations, or any portion thereof, or any other party thereto; and (e) applypayments received by WFBC from Customer to any portion of the Obligations, insuch order as WFBC shall determine in its sole discretion, whether or not suchObligations are covered by this Guaranty, and Guarantor hereby waives anyprovision of law regarding application of payments which specifiesotherwise.  WFBC may without notice assignthis Guaranty in whole or in part.  UponWFBC’s request, Guarantor agrees to provide to WFBC copies of Guarantor’sfinancial statements.

 

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

 

6.             GUARANTOR’SWAIVERS.

 

(a)           Guarantorwaives any right to require WFBC to: (i) proceed against Customer or anyother Person; (ii) marshal assets or proceed against or exhaust anysecurity granted by Customer or any other Person; (iii) give notice of theterms, time and place of any public or private sale or other disposition ofpersonal property security granted by Customer or any other Person; (iv) takeany other action or pursue any other remedy in WFBC’s power; or (v) makeany presentment or demand for performance, or give any notice ofnonperformance, protest, notice of protest or notice of dishonor hereunder orin connection with any obligations or evidences of indebtedness held by WFBC assecurity for or which constitute in whole or in part the Obligations guaranteedhereunder, or in connection with the creation of new or additional Obligations.

 

(b)           Guarantorwaives any defense to its obligations hereunder based upon or arising by reasonof: (i) any disability or other defense of Customer or any other Person; (ii) thecessation or limitation from any cause whatsoever, other than payment in full,of the Obligations or the indebtedness of any other Person; (iii) any lackof authority of any officer, director, partner, agent or any other Personacting 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 ofCustomer; (iv) the application by Customer of the proceeds of anyObligations for purposes other than the purposes represented by Customer to, orintended or understood by, WFBC or Guarantor; (v) any act or omission byWFBC which directly or indirectly results in or aids the discharge of Customeror any portion of the Obligations by operation of law or otherwise, or which inany way impairs or suspends any rights or remedies of WFBC against Customer; (vi) anyimpairment of the value of any interest in any security for the Obligations orany portion thereof, including without limitation, the failure to obtain ormaintain perfection or recordation of any interest in any such security, therelease of any such security without substitution, or the failure to preservethe value of, or to comply with applicable law in disposing of, any suchsecurity; (vii) any modification of the Obligations, in any formwhatsoever, including any modification made after revocation hereof to anyObligations incurred prior to such revocation, and including without limitationthe renewal, extension, acceleration or other change in time for payment of, orother change in the terms of, the Obligations or any portion thereof; or (viii) anyrequirement 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 toenforce any remedy which WFBC now has or may hereafter have against Customer orany other Person, and 

 

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waivesany benefit of, or any right to participate in, any security now or hereafterheld by WFBC.  Guarantor further waivesall rights and defenses Guarantor may have arising out of (A) any electionof remedies by WFBC, even though that election of remedies, such as anon-judicial foreclosure with respect to any security for any portion of theObligations, destroys Guarantor’s rights of subrogation or Guarantor’s rightsto proceed against Customer for reimbursement, or (B) any loss of rightsGuarantor may suffer by reason of any rights, powers or remedies of Customer inconnection with any anti-deficiency laws or any other laws limiting, qualifyingor discharging the Obligations, whether by operation of law or otherwise,including any rights Guarantor may have to a fair market value hearing todetermine the size of a deficiency following any foreclosure sale or otherdisposition of any real property security for any portion of the Obligations.

 

7.             WFBC’S RIGHTSWITH RESPECT TO GUARANTOR’S PROPERTY IN WFBC’S POSSESSION.  In addition to all liens upon and rights ofsetoff against the monies, securities or other property of Guarantor given toWFBC by law, WFBC shall have a lien upon and a right of setoff against allmonies, securities and other property of Guarantor now or hereafter in thepossession of or on deposit with WFBC, whether held in a general or specialaccount or deposit or for safekeeping or otherwise, and every such lien andright of setoff may be exercised without demand upon or prior notice toGuarantor.  WFBC agrees promptly tonotify Guarantor after any such setoff and application made by WFBC.  No lien or right of setoff shall be deemed tohave been waived by any act or conduct on the part of WFBC, or by any neglectto exercise such right of setoff or to enforce such lien, or by any delay in sodoing, and every right of setoff and lien shall continue in full force andeffect until such right of setoff or lien is specifically waived or released byWFBC in writing.

 

8.             SUBORDINATION.  Any indebtedness of Customer now or hereafterheld by Guarantor is hereby subordinated to the Obligations.  Such indebtedness of Customer to Guarantor isassigned to WFBC as security for this Guaranty and the Obligations and, if WFBCrequests, upon the occurrence of an Event of Termination, shall be collectedand received by Guarantor as trustee for WFBC and paid over to WFBC on accountof the Obligations but without reducing or affecting in any manner theliability of Guarantor under the other provisions of this Guaranty.  Any notes or other instruments now orhereafter evidencing such indebtedness of Customer to Guarantor shall be markedwith a legend that indicates that the notes or other instruments are subject tothis Guaranty and, if WFBC so requests, such notes and instruments shall bedelivered to WFBC.  WFBC is herebyauthorized in the name of Guarantor from time to time to file financingstatements and continuation statements and execute such other documents andtake such other action as WFBC deems necessary or appropriate to perfect,preserve and enforce its rights hereunder.

 

9.             REMEDIES; NOWAIVER.  All rights, powers andremedies 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 furtherexercise thereof or the exercise of any other right, power or remedy.  Any waiver, permit, consent or approval ofany kind by WFBC of any breach of this Guaranty, or any such waiver of anyprovisions or conditions hereof, must be in writing and shall be effective onlyto the extent set forth in writing.

 

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10.           COSTS, EXPENSESAND ATTORNEYS’ FEES.  Guarantorshall pay to WFBC immediately upon demand the full amount of all payments,advances, charges, costs and expenses, including reasonable attorneys’ fees (toinclude outside counsel fees and all allocated costs of WFBC’s in-housecounsel), expended or incurred by WFBC in connection with the enforcement ofany of WFBC’s rights, powers or remedies or the collection of any amounts whichbecome due to WFBC under this Guaranty, and the prosecution or defense of anyaction in any way related to this Guaranty, whether incurred at the trial orappellate level, in an arbitration proceeding or otherwise, and including anyof the foregoing incurred in connection with any bankruptcy proceeding(including without limitation, any adversary proceeding, contested matter ormotion brought by WFBC or any other Person) relating to Guarantor or any otherPerson.  All of the foregoing shall bepaid by Guarantor with interest from the date of demand until paid in full at arate per annum equal to the greater of ten percent (10%) or WFBC’s Prime Ratein effect from time to time.

 

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

 

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

 

13.           INTERPRETATION.  All references to the term “Customer” hereinshall refer to each of Badger Transport, Brad Foote, Energy Maintenance andTower Tech separately and to all of them jointly where context and constructionso require.  When this Guaranty isexecuted by more than one Guarantor, the word “Guarantor” shall mean all or anyone or more of them as the context requires. Unless the context clearly requires otherwise, the word “or” has theinclusive meaning represented by the phrase “and/or”.

 

14.           UNDERSTANDINGWITH RESPECT TO WAIVERS; SEVERABILITY OF PROVISIONS.  Guarantor warrants and agrees that each ofthe waivers set forth herein is made with Guarantor’s full knowledge of itssignificance and consequences, and that under the circumstances, the waiversare reasonable and not contrary to public policy or law.  If any waiver or other provision of thisGuaranty shall be held to be prohibited by or invalid under applicable publicpolicy or law, such waiver or other provision shall be ineffective only to theextent of such prohibition or invalidity, without invalidating the remainder ofsuch waiver or other provision or any remaining provisions of this Guaranty.

 

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

 

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16.           WAIVEROF JURY TRIAL. GUARANTOR IRREVOCABLYWAIVES ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIMARISING OUT OF, BASED ON OR PERTAINING TO THIS GUARANTY.

 

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INWITNESS 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 |

 

SignaturePage to Guaranty

 

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