Exhibit 10.88 


 


CONTINUING GUARANTY


 


TO: WELLS FARGO BANK, NATIONAL ASSOCIATION (“Bank”)


 


FROM: CUI Global, INC. (“Guarantor”)


 


Re: Orbital Gas Systems Limited (“Borrower”)


 


1. GUARANTY; DEFINITIONS. In

 consideration of any credit or other financial

 accommodation heretofore, now or hereafter extended

 or made to a Borrower, or any of them, by Bank, and

 for other valuable consideration, the undersigned

 Guarantor, jointly and severally unconditionally

 guarantees and promises to pay to Bank, or order, on

 demand and in immediately available funds, any and

 all Indebtedness of any of the Borrowers to Bank. The

 term "Indebtedness" is used herein in its most

 comprehensive sense and includes any and all

 advances, debts, obligations and liabilities of

 Borrowers, or any of them, heretofore, now or hereafter

 made, incurred or created, whether voluntary or

 involuntary and however arising, whether due or not

 due, absolute or contingent, liquidated or unliquidated,

 determined or undetermined, including under any

 swap, derivative, foreign exchange, hedge, deposit,

 treasury management or other similar transaction or

 arrangement, and whether any of the Borrowers may

 be liable individually or jointly with others, or whether

 recovery upon such Indebtedness may be or hereafter

 becomes 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 Indebtedness of each of the

 Borrowers to Bank, including that arising under

 successive transactions which shall either continue the

 Indebtedness, increase or decrease it, or from time to

 time create new Indebtedness after all or any prior

 Indebtedness has been satisfied, and notwithstanding

 the death, incapacity, dissolution, liquidation or

 bankruptcy of any of the Borrowers or Guarantor or any

 other event or proceeding affecting any of the

 Borrowers or Guarantor. This Guaranty shall not apply

 to any new Indebtedness created after actual receipt

 by Bank of written notice of its revocation as to such

 new Indebtedness; provided however, that loans or

 advances made by Bank to any of the Borrowers after

 revocation under commitments existing prior to receipt

 by Bank of such revocation, and extensions, renewals

 or modifications, of any kind, of Indebtedness incurred

 by any of the Borrowers or committed by Bank prior to

 receipt by Bank of such revocation, shall not be

 considered new Indebtedness. Any such notice must

 be sent to Bank by registered mail, postage prepaid,

 addressed to its office at One Plantation Place, 30

 Fenchurch Street, London, EC3M 3BD, or at such

 other address as Bank shall from time to time

 designate. The obligations of Guarantor hereunder

 shall be in addition to any obligations of Guarantor

 under any other guaranties of any liabilities or

 obligations of any of the Borrowers or any other

 persons heretofore or hereafter given to Bank unless

 said other guaranties are expressly modified or

 revoked in writing; and this Guaranty shall not, unless

 expressly herein provided, affect or invalidate any such

 other guaranties. 


 


3. OBLIGATIONS JOINT AND

 SEVERAL; SEPARATE ACTIONS; WAIVER OF

 STATUTE OF LIMITATIONS; REINSTATEMENT OF

 LIABILITY. The obligations hereunder are joint and

 several and independent of the obligations of

 Borrowers, and a separate action or actions may be

 brought and prosecuted against Guarantor whether

 action is brought against any of the Borrowers or any

 other person, or whether any of the Borrowers or any

 other person is joined in any such action or actions.

 Guarantor acknowledges that this Guaranty is absolute

 and unconditional, there are no conditions precedent to

 the effectiveness of this Guaranty, and this Guaranty is

 in full force and effect and is binding on Guarantor as

 of the date written below, regardless of whether Bank

 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 Guarantor's liability hereunder or

 the enforcement thereof, and Guarantor agrees that

 any payment of any Indebtedness or other act which

 shall toll any statute of limitations applicable thereto

 shall similarly operate to toll such statute of limitations

 applicable to Guarantor's liability hereunder. The

 liability of Guarantor hereunder shall be reinstated and

 revived and the rights of Bank shall continue if and to

 the extent for any reason any amount at any time paid

 on account of any Indebtedness guaranteed hereby is

 rescinded or must otherwise be restored by Bank,

 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 Bank in its sole discretion;

 provided however, that if Bank chooses to contest any

 such matter at the request of Guarantor, Guarantor

 agrees to indemnify and hold Bank harmless from and

 against all costs and expenses, including reasonable

 attorneys' fees, expended or incurred by Bank in

 connection therewith, including without limitation, in

 any litigation with respect thereto. 


 






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4. AUTHORIZATIONS TO BANK.

 Guarantor authorizes Bank 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 Indebtedness 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 Indebtedness 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 Bank in its discretion may determine; (d)

 release or substitute any one or more of the endorsers

 or any other guarantors of the Indebtedness, or any

 portion thereof, or any other party thereto; and (e)

 apply payments received by Bank from any of the

 Borrowers to any Indebtedness of any of the Borrowers

 to Bank, in such order as Bank shall determine in its

 sole discretion, whether or not such Indebtedness is

 covered by this Guaranty, and Guarantor hereby

 waives any provision of law regarding application of

 payments which specifies otherwise. Bank may

 without notice assign this Guaranty in whole or in part.

 Upon Bank's request, Guarantor agrees to provide to

 Bank copies of Guarantor's financial statements.


 





5. REPRESENTATIONS AND

 WARRANTIES. Guarantor represents and warrants to

 Bank that: (a) this Guaranty is executed at Borrowers'

 request; (b) Guarantor shall not, without Bank's prior

 written consent, sell, lease, assign, encumber,

 hypothecate, transfer or otherwise dispose of all or a

 substantial or material part of Guarantor's assets other

 than in the ordinary course of Guarantor's business; (c)

 Bank has made no representation to Guarantor as to

 the creditworthiness of any of the Borrowers; and (d)

 Guarantor has established adequate means of

 obtaining from each of the Borrowers on a continuing

 basis financial and other information pertaining to

 Borrowers' financial condition. Guarantor agrees to

 keep adequately informed from such means of any

 facts, events or circumstances which might in any way

 affect Guarantor's risks hereunder, and Guarantor

 further agrees that Bank shall have no obligation to

 disclose to Guarantor any information or material about

 any of the Borrowers which is acquired by Bank in any manner. 


 


6. GUARANTOR'S WAIVERS.


 


(a) Guarantor waives any right to

 require Bank to: (i) proceed against any of the

 Borrowers or any other person; (ii) marshal assets or

 proceed against or exhaust any security held from any

 of the Borrowers 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 held

 from any of the Borrowers or any other person; (iv) take

 any other action or pursue any other remedy in Bank'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 Bank as security for

 or which constitute in whole or in part the Indebtedness

 guaranteed hereunder, or in connection with the

 creation of new or additional Indebtedness. 


 


(b) Guarantor waives any defense to its

 obligations hereunder based upon or arising by reason

 of: (i) any disability or other defense of any of the

 Borrowers or any other person; (ii) the cessation or

 limitation from any cause whatsoever, other than

 payment in full, of the Indebtedness of any of the

 Borrowers or 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 any of

 the Borrowers which is a corporation, partnership or

 other type of entity, or any defect in the formation of

 any such Borrower; (iv) the application by any of the

 Borrowers of the proceeds of any Indebtedness for

 purposes other than the purposes represented by

 Borrowers to, or intended or understood by, Bank or

 Guarantor; (v) any act or omission by Bank which

 directly or indirectly results in or aids the discharge of

 any of the Borrowers or any portion of the

 Indebtedness by operation of law or otherwise, or

 which in any way impairs or suspends any rights or

 remedies of Bank against any of the Borrowers; (vi)

 any impairment of the value of any interest in any

 security for the Indebtedness or any portion thereof,






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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, and/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

 Indebtedness, in any form whatsoever, including any

 modification made after revocation hereof to any

 Indebtedness 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 Indebtedness or any

 portion thereof, including increase or decrease of the

 rate of interest thereon; or (viii) any requirement that

 Bank give any notice of acceptance of this Guaranty.

 Until all Indebtedness shall have been paid in full,

 Guarantor shall have no right of subrogation, and

 Guarantor waives any right to enforce any remedy

 which Bank now has or may hereafter have against any

 of the Borrowers or any other person, and waives any

 benefit of, or any right to participate in, any security

 now or hereafter held by Bank. Guarantor further

 waives all rights and defenses Guarantor may have

 arising out of (A) any election of remedies by Bank,

 even though that election of remedies, such as a nonjudicial

 foreclosure with respect to any security for any

 portion of the Indebtedness, destroys Guarantor's

 rights of subrogation or Guarantor's rights to proceed

 against any of the Borrowers for reimbursement, or

 (B) any loss of rights Guarantor may suffer by reason

 of any rights, powers or remedies of any of the

 Borrowers in connection with any anti-deficiency laws

 or any other laws limiting, qualifying or discharging

 Borrowers' Indebtedness, 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 Indebtedness. 


 


7. BANK'S RIGHTS WITH RESPECT

 TO GUARANTOR'S PROPERTY IN BANK'S

 POSSESSION. In addition to all liens upon and rights

 of setoff against the monies, securities or other

 property of Guarantor given to Bank by law, Bank 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 Bank,

 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 notice to Guarantor. No lien or right of setoff

 shall be deemed to have been waived by any act or

 conduct on the part of Bank, 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

 Bank in writing. 


 


8. SUBORDINATION. Any

 Indebtedness of any of the Borrowers now or hereafter

 held by Guarantor is hereby subordinated to the

 Indebtedness of Borrowers to Bank. Such

 Indebtedness of Borrowers to Guarantor is assigned to

 Bank as security for this Guaranty and the

 Indebtedness and, if Bank requests, shall be collected

 and received by Guarantor as trustee for Bank and

 paid over to Bank on account of the Indebtedness of

 Borrowers to Bank 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 any of the Borrowers to Guarantor

 shall be marked with a legend that the same are

 subject to this Guaranty and, if Bank so requests, shall

 be delivered to Bank. Bank 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

 Bank deems necessary or appropriate to perfect,

 preserve and enforce its rights hereunder. 


 


9. REMEDIES; NO WAIVER. All

 rights, powers and remedies of Bank hereunder are

 cumulative. No delay, failure or discontinuance of

 Bank 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 Bank 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. 


 


10. COSTS, EXPENSES AND

 ATTORNEYS' FEES. Guarantor shall pay to Bank

 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 Bank's in-house

 counsel), expended or incurred by Bank in connection

 with the enforcement of any of Bank's rights, powers or

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 remedies and/or the collection of any amounts which

 become due to Bank 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 Bank or any

 other person) relating to Guarantor or any other person

 or entity. 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 Bank’s Prime Rate in effect from time to time. 


 






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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

 Bank's prior written consent. Guarantor acknowledges

 that Bank has the right to sell, assign, transfer,

 negotiate or grant participations in all or any part of, or

 any interest in, any Indebtedness of Borrowers to Bank

 and any obligations with respect thereto, including this

 Guaranty. In connection therewith, Bank may disclose

 all documents and information which Bank now has or

 hereafter acquires relating to Guarantor and/or this

 Guaranty, whether furnished by Borrowers, Guarantor

 or otherwise. Guarantor further agrees that Bank may

 disclose such documents and information to Borrowers.


 


12. AMENDMENT. This Guaranty may

 be amended or modified only in writing signed by Bank

 and Guarantor.

 


 


13. APPLICATION OF SINGULAR

 AND PLURAL. In all cases where there is but a single

 Borrower, then all words used herein in the plural shall

 be deemed to have been used in the singular where

 the context and construction so require; and when

 there is more than one Borrower named herein, or

 when this Guaranty is executed by more than one

 Guarantor, the word "Borrowers" and the word

 "Guarantor" respectively shall mean all or any one
or

 more of them as the context requires. 


 


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. CURRENCY: All guaranteed

 amounts payable by the Guarantor under this Deed

 shall be paid in full to the Bank in the currency in which

 the respective Indebtedness is payable and any

 payment in respect of costs, expenses or taxes shall

 be made in the currency in which the costs, expenses

 or taxes are incurred. 


 


16. GOVERNING LAW. This Guaranty shall be

 governed by and construed in accordance with the

 laws of the State of New York. 


 


17. ARBITRATION.


 


(a) Arbitration.
The parties hereto agree, upon demand by any party, to submit to binding arbitration all claims, disputes and controversies between
or among them (and their respective employees, officers, directors, attorneys, and other agents), whether in tort, contract or
otherwise, in any way arising out of or relating to this Guaranty and its negotiation, execution, collateralization, administration,
repayment, modification, extension, substitution, formation, inducement, enforcement, default or termination. In the event of
a court ordered arbitration, the party requesting arbitration shall be responsible for timely filing the demand for arbitration
and paying the appropriate filing fee within 30 days of the abatement order or the time specified by the court. Failure to timely
file the demand for arbitration as ordered by the court will result in that party’s right to demand arbitration being automatically
terminated.


 


(b) Governing
Rules. Any arbitration proceeding will (i) proceed in a location in New York selected by the American Arbitration Association
(“AAA”); (ii) be governed by the Federal Arbitration Act (Title 9 of the United States Code), notwithstanding any
conflicting choice of law provision in any of the documents between the parties; and (iii) be conducted by the AAA, or such other
administrator as the parties shall mutually agree upon, in accordance with the AAA’s commercial dispute resolution procedures,
unless the claim or counterclaim is at least $1,000,000.00 exclusive of claimed interest, arbitration fees and costs in which
case the arbitration shall be conducted in accordance with the AAA’s optional procedures for large, complex commercial disputes
(the commercial dispute resolution procedures or the optional procedures for large, complex commercial disputes to be referred
to herein, as applicable, as the “Rules”). If there is any inconsistency between the terms hereof and the Rules, the
terms and procedures set forth herein shall control. Any party who fails or refuses to submit to arbitration following a demand
by any other party shall bear all costs and expenses incurred by such other party in compelling arbitration of any dispute. Nothing
contained herein shall be deemed to be a waiver by any party that is a bank of the protections afforded to it under 12 U.S.C.
§91 or any similar applicable state law.


 






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(c) No Waiver
of Provisional Remedies, Self-Help and Foreclosure. The arbitration requirement does not limit the right of any party to (i)
foreclose against real or personal property collateral; (ii) exercise self-help remedies relating to collateral or proceeds of
collateral such as setoff or repossession; or (iii) obtain provisional or ancillary remedies such as replevin, injunctive relief,
attachment or the appointment of a receiver, before during or after the pendency of any arbitration proceeding. This exclusion
does not constitute a waiver of the right or obligation of any party to submit any dispute to arbitration or reference hereunder,
including those arising from the exercise of the actions detailed in sections (i), (ii) and (iii) of this paragraph.


 


(d) Arbitrator
Qualifications and Powers. Any arbitration proceeding in which the amount in controversy is $5,000,000.00 or less will be
decided by a single arbitrator selected according to the Rules, and who shall not render an award of greater than $5,000,000.00.
Any dispute in which the amount in controversy exceeds $5,000,000.00 shall be decided by majority vote of a panel of three arbitrators;
provided however, that all three arbitrators must actively participate in all hearings and deliberations. The arbitrator will
be a neutral attorney licensed in the State of New York or a neutral retired judge of the state or federal judiciary of New York,
in either case with a minimum of ten years experience in the substantive law applicable to the subject matter of the dispute to
be arbitrated. The arbitrator will determine whether or not an issue is arbitratable and will give effect to the statutes of limitation
in determining any claim. In any arbitration proceeding the arbitrator will decide (by documents only or with a hearing at the
arbitrator's discretion) any pre-hearing motions which are similar to motions to dismiss for failure to state a claim or motions
for summary adjudication. The arbitrator shall resolve all disputes in accordance with the substantive law of New York and may
grant any remedy or relief that a court of such state could order or grant within the scope hereof and such ancillary relief as
is necessary to make effective any award. The arbitrator shall also have the power to award recovery of all costs and fees, to
impose sanctions and to take such other action as the arbitrator deems necessary to the same extent a judge could pursuant to
the Federal Rules of Civil Procedure, the New York Civil Practice Law and Rules or other applicable law. Judgment upon the award
rendered by the arbitrator may be entered in any court having jurisdiction. The institution and maintenance of an action for judicial
relief or pursuit of a provisional or ancillary remedy shall not constitute a waiver of the right of any party, including the
plaintiff, to submit the controversy or claim to arbitration if any other party contests such action for judicial relief.


 


(e) Discovery.
In any arbitration proceeding, discovery will be permitted in accordance with the Rules. All discovery shall be expressly limited
to matters directly relevant to the dispute being arbitrated and must be completed no later than 20 days before the hearing date.
Any requests for an extension of the discovery periods, or any discovery disputes, will be subject to final determination by the
arbitrator upon a showing that the request for discovery is essential for the party's presentation and that no alternative means
for obtaining information is available.


 


(f) Class Proceedings
and Consolidations. No party hereto shall be entitled to join or consolidate disputes by or against others in any arbitration,
except parties who have executed this Guaranty or any other contract, instrument or document relating to any Indebtedness, or
to include in any arbitration any dispute as a representative or member of a class, or to act in any arbitration in the interest
of the general public or in a private attorney general capacity.


 


(g) Payment Of
Arbitration Costs And Fees. The arbitrator shall award all costs and expenses of the arbitration proceeding.


 






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(h) Miscellaneous.
To the maximum extent practicable, the AAA, the arbitrators and the parties shall take all action required to conclude any arbitration
proceeding within 180 days of the filing of the dispute with the AAA. No arbitrator or other party to an arbitration proceeding
may disclose the existence, content or results thereof, except for disclosures of information by a party required in the ordinary
course of its business or by applicable law or regulation. If more than one agreement for arbitration by or between the parties
potentially applies to a dispute, the arbitration provision most directly related to the documents between the parties or the
subject matter of the dispute shall control. This arbitration provision shall survive termination, amendment or expiration of
any of the documents or any relationship between the parties.


 


(i) Small Claims
Court. Notwithstanding anything herein to the contrary, each party retains the right to pursue in Small Claims Court any dispute
within that court’s jurisdiction. Further, this arbitration provision shall apply only to disputes in which either party
seeks to recover an amount of money (excluding attorneys’ fees and costs) that exceeds the jurisdictional limit of the Small
Claims Court.


 


IN WITNESS WHEREOF, the undersigned Guarantor

 has executed this Guaranty as of


 





Guarantor


_____________________________________


Authorized signatory


 


Name:


 


Witness


______________________________________


Witness signature


 


Name:







 









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