Exhibit 10.16


 


AMENDED AND
RESTATED GUARANTY


 


This AMENDED AND RESTATED GUARANTY
(the “Guaranty”) dated as of September 26, 2007 is made by Terry Kiefer, an
individual residing in the State of Texas (“Guarantor”), in favor of John Fife
(“Lender”).


 


W  I  T  N  E  S
S  E  T  H


 


WHEREAS, National Storm
Management, Inc., a Nevada corporation (the “Borrower”) issued to Lender an
Amended and Restated Original Issue Discount Secured Note, dated as of
September 26, 2007 in an aggregate original face amount of Six Hundred Thousand
and 00/100 Dollars ($600,000.00)
(such note, as amended, restated, supplemented or otherwise modified from time
to time, being hereinafter referred to as the “Note”), which Note supersedes
and replaces that certain Original Issue Discount Secured Note dated August 31,
2007 issued by the Borrower to Lender;


 


WHEREAS, pursuant to the
Note, the Guarantor is required to execute and deliver to the Lender a guaranty
guaranteeing all obligations under the Note and the other Guaranteed
Obligations (defined below);


 


WHEREAS, the Guarantor previously
executed that certain Guaranty dated August 31, 2007 in favor of Lender (the “Original
Guaranty”), which Original Guaranty is superseded and replaced by this
Guaranty; and


 


WHEREAS, the Guarantor has
determined that (i) it will derive substantial benefit and advantage from the
loan and other financial accommodations made available to the Borrower under
the Note and the other Guaranteed Obligations and (ii) its execution, delivery
and performance of this Guaranty directly benefit, and are within the best
interests of, the Guarantor.


 


NOW, THEREFORE, in
consideration of $1,000 receipt of which is hereby acknowledged, the premises,
the agreements herein and in order to induce the Lender to make the loan
pursuant to the Note, the Guarantor hereby agrees with the Lender, as follows:


 


Section 1.               Definitions. Reference is
hereby made to the Note for a statement of the terms thereof. All terms used in
this Guaranty which are defined in the Note and not otherwise defined herein
shall have the same meanings herein as set forth therein. As used in this
Guaranty, the following terms have the following meanings (terms defined in the
singular to have the same meaning when used in the plural and vice versa):


 


“Borrower” has the meaning
specified in the preamble above.


 


“Guaranty” means this
Guaranty.


 


“Guaranty Documents” means
any document or agreement evidencing, related to or delivered in connection
with any or all of the Guaranteed Obligations, including without limitation the
Note.


 


“Guaranteed Obligations”
means any and all present and future liabilities and obligations of Borrower
and Guarantor to Lender incurred by Borrower and Guarantor, and whether due or
to become due, secured or unsecured, absolute or contingent, joint or several,
direct or indirect, acquired outright, conditionally or as collateral security
by Lender from another, liquidated or unliquidated, arising by 


 

















 


operation of law or otherwise, together with
all fees and expenses incurred in collecting any or all of the items specified
in this definition or enforcing any rights under any of the Guaranty Documents,
including all fees and expenses of Lender’s counsel and of any experts and
agents which may be paid or incurred by Lender in collecting any such items or
enforcing any such rights.


 


Section 2.               Rules of Interpretation.
When used in this Guaranty: (1) “or” is not exclusive, (2) a reference to a law
includes any amendment or modification to such law, and (3) a reference to an
agreement, instrument or document includes any amendment or modification of
such agreement, instrument or document.


 


Section 3.               Guaranty. Guarantor hereby
guarantees to Lender and its successors, endorsees, transferees and assigns the
prompt and complete payment, as and when due and payable (whether at stated
maturity or by required prepayment, acceleration, demand or otherwise), of all
of the Guaranteed Obligations now existing or hereafter incurred will be paid
strictly in accordance with their terms.


 


Section 4.               Limitation of Liability. The
obligation of Guarantor under this Guaranty shall be limited to an aggregate
amount equal to the largest amount that would not render the obligation of
Guarantor under this Guaranty subject to avoidance under Section 548 of the
United States Bankruptcy Code or any comparable provision of any applicable
state law.


 


Section 5.               Type of Guaranty. This
Guaranty is absolute and unconditional and as such is not subject to any
conditions and Guarantor is fully liable to perform all of its duties and
obligations under this Guaranty as of the date of execution of this Guaranty.
This Guaranty is a continuing guaranty and applies to all future Guaranteed
Obligations. In addition, this Guaranty shall remain in full force and effect
even if at any time there are no outstanding Guaranteed Obligations. This
Guaranty is a guaranty of payment and not of collection. The obligations and
liabilities of Guarantor under this Guaranty shall not be conditioned or
contingent upon the pursuit by Lender of any right or remedy against Borrower,
Guarantor or any other person which may be or become liable in respect of all
or any part of the Guaranteed Obligations, or against any assets securing the
payment of the Guaranteed Obligations or guarantee for such Guaranteed
Obligations or right of setoff with respect to such Guaranteed Obligations.
This Guaranty is irrevocable and as such cannot be cancelled, terminated or
revoked by Guarantor.


 


Section 6.               Reinstatement of Guaranty.
This Guaranty shall continue to be effective or shall be reinstated, as the
case may be, if at any time any payment, or any part thereof, of any of the
Guaranteed Obligations are rescinded or must otherwise be returned by Lender
upon the insolvency, bankruptcy, dissolution, liquidation or reorganization of
Borrower, Guarantor or otherwise, all as though such payment had not been made.


 


Guarantor hereby consents
that, without the necessity of any reservation of rights against Guarantor and
without notice to or further assent by Guarantor, any demand for payment of any
of the Guaranteed Obligations made by Lender may be rescinded by Lender and any
of such Guaranteed Obligations continued after such rescission.


 


Section 7.               Security Interest. To
secure the payment of the obligations of Guarantor under this Guaranty, Guarantor
has contemporaneously executed a Stock Pledge Agreement (the “Stock Pledge
Agreement”) in favor of Lender, which Stock Pledge Agreement grants Lender a
pledge and security interest in the Pledged Shares listed in Schedule 1 to the
Stock Pledge Agreement.


 


Section 8.               Waiver of Notices.
Guarantor hereby waives any and all notices including (1) notice of or proof of
reliance by Lender upon this Guaranty or acceptance of this Guaranty, (2)
notice of the incurrence of any Guaranteed Obligations or the renewal,
extension or accrual of any such Guaranteed Obligations, (3) notice of any
actions taken by Lender, Borrower, Guarantor or any other person under 


 


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any Guaranty Document, and (4) notices of
nonpayment or nonperformance, protest, notices of protest and notices of
dishonor.


 


Section 9.               Waiver of Defenses.
Guarantor hereby waives any and all defenses to the performance by Guarantor of
its duties and obligations under this Guaranty, including any defense based on
any of the following:


 


(1)           any failure of Lender to disclose to Guarantor any
information relating to the business, condition (financial or otherwise),
operations, performance, properties or prospects of any party obligated to make
payment on any and all Guaranteed Obligations, whether as principal or
guarantor, now or hereafter known to Lender,


 


(2)           any defense to the payment of any or all the Guaranteed
Obligations, including lack of validity or enforceability of any of the
Guaranteed Obligations or any Guaranty Documents,


 


(3)           any change in the time, manner or place of payment of, or
in any other term in respect of, all or any of the Guaranteed Obligations, or
any other amendment or waiver of or consent to any departure from any Guaranty
Document,


 


(4)           any exchange or release of, or non-perfection of any
security interest on or in any assets securing the payment of the Guaranteed
Obligations,


 


(5)           any failure to execute any other guaranty for all or any
part of the Guaranteed Obligations, or any release or amendment or waiver of,
or consent to any departure from, any other guaranty for any or all of the
Guaranteed Obligations,


 


(6)           any subordination of any or all of the Guaranteed
Obligations,


 


(7)           any act or omission of Lender in connection with the
enforcement of, or the exercise of rights and remedies, including any election
of, or the order of exercising any, remedies, with respect to (a) the
Guaranteed Obligations, (b) any other guarantor of the Guaranteed Obligations,
or (c) any assets securing the payment of the Guaranteed Obligations,


 


(8)           any manner of application of any funds received by Lender
to Guaranteed Obligations or any other obligations owed to Lender, whether from
the sale or disposition of any assets securing the Guaranteed Obligations, from
another guarantor of the Guaranteed Obligations or otherwise, and


 


(9)           any failure to give or provide any notices, demands or
protests, including those specified under Section 8 herein, entitled “Waiver of
Notices”.


 


Section 10.             Subrogation. Guarantor may
not exercise any rights which Guarantor may acquire by way of subrogation or
contribution, whether acquired by any payment made under this Guaranty, by any
setoff or application of funds of Borrower, by Lender or otherwise, until (1)
the payment in full of the Guaranteed Obligations (after Lender no longer has
any obligation or arrangement to provide credit to Borrower, including under or
pursuant to a line of credit), and (2) the payment of all fees and expenses to
be paid by Guarantor pursuant to this Guaranty. If any amount shall be paid to
Guarantor on account of such subrogation or contribution rights at any time
when all of the Guaranteed Obligations and all such other expenses shall not
have been paid in full (after Lender no longer has any obligation or
arrangement to provide credit to Borrower, including under or pursuant to a
line of credit), such amount shall be held in trust for the benefit of Lender,
shall be segregated from the other funds of Guarantor and shall forthwith be paid
over to Lender to be credited and applied in whole or in part by 


 


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Lender against the Guaranteed Obligations,
whether matured or unmatured, and all such other fees and expenses in
accordance with the terms of the Guaranty Documents.


 


Section 11.             Representations. At the time
of execution of this Guaranty and each time Lender provides credit as noted
above, Guarantor represents and warrants to Lender as follows:


 


(1)           Name. The exact legal name of the Guarantor is the
name specified in the preamble to this Guaranty. The Guarantor has not been
known by any other name during the five (5) years prior to the date of the
Guaranty.


 


(2)           Location. The principal residence of the Guarantor
is 2062 Azalea, Irving, TX 75063.


 


(3)           No Contravention. The execution, delivery and
performance by Guarantor of this Guaranty do not and will not (a) violate any
provision of any law, order, writ, judgment, injunction, decree, determination,
or award presently in effect applicable to Guarantor, (b) result in a breach of
or constitute a default under any indenture or loan or credit agreement or any
other agreement, lease, or instrument to which Guarantor is a party or by which
Guarantor or its properties may be bound or affected, or (c) result in, or
require, the creation or imposition of any lien upon or with respect to any of
the properties now owned or hereafter acquired by Guarantor.


 


(4)           Governmental Authority. No authorization, approval
or other action by, and no notice to or filing with, any governmental authority
is required for the due execution, delivery and performance by Guarantor of
this Guaranty.


 


(5)           Legally Enforceable Guaranty. This Guaranty is the
legal, valid and binding obligation of Guarantor, enforceable against Guarantor
in accordance with its terms, except to the extent that such enforcement may be
limited by (a) applicable bankruptcy, insolvency, and other similar laws
affecting creditors’ rights generally, or (b) general equitable principles,
regardless of whether the issue of enforceability is considered in a proceeding
in equity or at law.


 


Section 12.             Remedies. Lender shall not,
by any act, delay, omission or otherwise, be deemed to have waived any of its
rights or remedies under this Guaranty or otherwise. A waiver by Lender of any
right or remedy hereunder on any one occasion, shall not be construed as a ban
or waiver of any such right or remedy which Lender would have had on any future
occasion, nor shall Lender be liable for exercising or failing to exercise any
such right or remedy. The rights and remedies of Lender under this Guaranty are
cumulative and, as such, are in addition to any other rights and remedies
available to Lender under law or any other agreements.


 


Section 13.             Appointment as Attorney-in-Fact.
Guarantor hereby appoints Lender as the attorney-in-fact for Guarantor, with
full authority in the place and stead of Guarantor and in the name of Guarantor
or otherwise, to exercise all rights and remedies granted to Lender under this
Guaranty and to take any action and to execute any instrument which Lender may
deem necessary or advisable to accomplish the purposes of this Guaranty.


 


Section 14.             Indemnity and Expenses.
Guarantor hereby indemnifies Lender from and against any and all claims,
losses, damages and liabilities growing out of or resulting from this Guaranty
(including, without limitation, enforcement of this Guaranty), except claims,
losses, damages or liabilities resulting from Lender’s gross negligence and
willful misconduct.


 


Guarantor will upon demand
pay to Lender the amount of any and all expenses, including the fees and
expenses of its counsel and of any experts and agents, which Lender may incur
in connection with (1) any amendment to this Guaranty, (2) the administration
of this Guaranty, (3) the exercise or enforcement 


 


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of any of the rights of Lender under this
Guaranty, or (4) the failure by Guarantor to perform or observe any of the
provisions of this Guaranty.


 


Section 15.             Amendments. No amendment or
waiver of any provision of this Guaranty, nor consent to any departure by
Guarantor from this Guaranty, shall in any event be effective unless the same
shall be in writing and signed by Guarantor and Lender, and then such amendment
or waiver shall be effective only in the specific instance and for the specific
purpose for which given.


 


Section 16.             Addresses for Notices. All
notices and other communications provided for under this Guaranty shall be in
writing and, mailed or delivered by messenger or overnight delivery service,
addressed, in the case of Guarantor at its address specified below its
signature, and in the case of Lender at the address specified below, or as to
any such party at such other address as shall be designated by such party in a
written notice to the other party complying as to delivery with the terms of
this Section.


 


If to Lender:


 


John Fife


303 East Wacker Drive


Suite 301


Chicago, IL 60601


 


With Copies to:


 


Merrill E. Weber, Esq.


303 East Wacker Drive, Suite
301


Chicago, IL 60601


(773)406-2386


 


If to Guarantor:


 


Terry Kiefer


202 Azalea


Irving, TX 75063


 


With Copies to:


 


Ungaretti & Harris


3500 Three First National
Plaza


70 West Madison Street


Chicago, IL 60602


Attention:  Michael Black, Esq.


Tel.:  (312)977-4400


Fax:  (312)977-4405


 


All such notices and other
communications shall, when mailed, be effective three (3) days after being
placed in the mails, or when delivered to a messenger or overnight delivery
service, be effective one (1) day after being delivered to the messenger or
overnight delivery service, in each case, addressed as specified above.


 


Section 17.             Assignment and Transfer of
Obligations. This Guaranty will bind the estate of Guarantor as to
Guaranteed Obligations created or incurred both before and after the death or
incapacity of Guarantor, whether or not Lender receives notice of such death or
incapacity. This Guaranty shall inure to the benefit of Lender and its
successors, transferees and assigns. Guarantor may not transfer or assign 


 


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its obligations under this Guaranty. Lender
may assign or otherwise transfer all or a portion of its rights or obligations
with respect to the Guaranteed Obligations to any other party, and such other
party shall then become vested with all the benefits in respect of such
transferred Guaranteed Obligations granted to Lender in this Guaranty or
otherwise. Guarantor agrees that Lender can provide information regarding
Guarantor to any prospective or actual successor, transferee or assign.


 


Section 18.             Setoff. Guarantor agrees
that, in addition to, and without limiting, any right of setoff, Lender’s lien
or counterclaim Lender may otherwise have, Lender shall be entitled, at its
option, to offset balances (general or special, time or demand, provisional or
final) held by it for the account of Guarantor, at any of the offices of
Lender, in Dollars or any other currency, against any amount payable by
Guarantor to Lender under this Guaranty which is not paid when demanded (regardless
of whether such balances are then due to Guarantor), in which case Lender shall
promptly notify Guarantor, provided that Lender’s failure to give such notice
shall not affect the validity of such offset.


 


Section 19.             Submission to Jurisdiction.
Guarantor hereby irrevocably submits to the jurisdiction of any federal or
state court sitting in Cook County in the State of Illinois over any action or
proceeding arising out of or related to this Guaranty and agrees with Lender
that personal jurisdiction over Guarantor rests with such courts for purposes
of any action on or related to this Guaranty. Guarantor hereby waives personal
service by manual delivery and agrees that service of process may be made by
prepaid certified mail directed to Guarantor at the address of Guarantor for
notices under this Guaranty or at such other address as may be designated in
writing by Guarantor to Lender, and that upon mailing of such process such
service will be effective as if Guarantor was personally served. Guarantor agrees
that a final judgment in any such action or proceeding shall be conclusive and
may be enforced in other jurisdictions by suit on the judgment or in any manner
provided by law. Guarantor further waives any objection to venue in any such
action or proceeding on the basis of inconvenient forum. Guarantor agrees that
any action on or proceeding brought against Lender shall only be brought in
such courts.


 


Section 20.             Governing Law. This Guaranty
shall be governed by and construed in accordance with the laws of the State of
Illinois without regard to its principles of conflicts of law.


 


Section 21.             Subordination. Once a demand
for payment is made on the Guarantor under this Guaranty, Guarantor will not
(1) make any demand for payment of, or take any action to accelerate, any
obligation owed to Guarantor by Borrower, (2) seek to collect payment of, or
enforce any right or remedies against Borrower, of any of the obligations owed
to Guarantor by Borrower or any guarantees, credit supports, collateral or other
security related to or supporting any of such obligations, or (3) commence, or
join with any other creditor in commencing, any bankruptcy or similar
proceeding against Borrower. Guarantor also agrees that the payment of all
obligations of Borrower to Guarantor shall be subordinate and junior in time
and right of payment in accordance with the terms of this Section to the prior
payment in full (in cash) of the Guaranteed Obligations. In furtherance of such
subordination, (1) to the extent possible, Guarantor will not take or receive
from Borrower any payments, in cash or any other property, by setoff or any
other means, of any or all of the obligations owed to Guarantor by Borrower, or
purchase, redeem, or otherwise acquire any of such obligations, or change the
terms or provisions of any such obligations and (2) if for any reason and under
any circumstance Guarantor receives a payment on such obligation, whether in a
bankruptcy or similar proceeding or otherwise, all such payments or
distributions upon or with respect to such obligations shall be received in
trust for the benefit of Lender, shall be segregated from other funds and
property held by Guarantor and shall be forthwith paid over to Lender in the
same form as so received (with any necessary endorsement) to be applied (in the
case of cash) to, or held as collateral (in the case of securities or other
non-cash property) for, the payment or prepayment of the Guaranteed
Obligations. Guarantor agrees that any subrogation rights Guarantor may acquire
as a result of a payment under this Section may not be exercised until (1) the
payment in full of the Guaranteed Obligations (after Lender no longer has any
obligation or arrangement to provide credit to Borrower, including under or
pursuant to a line of credit), and (2) the payment of all fees and expenses to
be paid by Guarantor pursuant to this Guaranty. Notwithstanding the foregoing,
once a demand for 


 


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payment is made on the Guarantor under this
Guaranty, Guarantor shall continue to receive a salary that is reasonable and
customary for the chief executive of a publicly traded company.


 


Section 22.             Miscellaneous. This Guaranty
is in addition to and not in limitation of any other rights and remedies Lender
may have by virtue of any other instrument or agreement previously,
contemporaneously or hereafter executed by Guarantor or any other party or by
law or otherwise. If any provision of this Guaranty is contrary to applicable
law, such provision shall be deemed ineffective without invalidating the
remaining provisions of this Guaranty. Titles in this Guaranty are for
convenience of reference only and shall not affect the interpretation or
construction of this Guaranty. This Guaranty constitutes the entire agreement
between Guarantor and Lender with respect to the matters covered by this
Guaranty and supersedes all written or oral agreements with respect to such
matters.


 


Section 23.             WAIVER OF JURY TRIAL.
GUARANTOR EXPRESSLY WAIVES ANY AND EVERY RIGHT TO A TRIAL BY JURY IN ANY ACTION
ON OR RELATED TO THIS GUARANTY.


 


[signature
page attached]


 


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IN WITNESS WHEREOF,
Guarantor has duly executed and delivered this Guaranty as of the date of this
Guaranty.


 


 


	
   

  	
  By:

  	
  /s/  Terry Kiefer

  	
   

  
	
   

  	
   

  	
    Terry Kiefer