Exhibit
10.13


 


THIRD
AMENDED AND RESTATED GUARANTY


 


 


                This THIRD AMENDED AND RESTATED GUARANTY (the “Guaranty”)
dated as of June 29, 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”), and the Lender
are parties to a Note, dated as of July 24th, 2006 (such note, as amended,
restated, supplemented or otherwise modified from time to time, being
hereinafter referred to as the “2006 Note”);


 


WHEREAS, pursuant
to the 2006 Note, the Guarantor is required to execute and deliver to the
Lender a guaranty guaranteeing the 2006 Note and all other obligations under
the 2006 Note and the other Guaranteed Obligations (defined below);


 


WHEREAS, since the
date of the 2006 Note, the Lender has made additional loans to the Borrower,
and has requested that the Guarantor guarantee the obligations of the Borrower
in connection with such additional loans, and the Guarantor has agreed to do so
upon the terms and subject to the conditions hereof;


 


WHEREAS, the
Guarantor executed that certain guaranty in favor of Lender dated July 24, 2006
(the “Original Guaranty”), which Original Guaranty was superseded and replaced
by that certain first amended guaranty executed by the Guarantor in favor of
the Lender dated April 11, 2007 (the “First Amended Guaranty”), which First
Amended Guaranty was superseded and replaced by that certain Second Amended and
Restated Guaranty dated May 17, 2007 (the “Second Amended Guaranty”), which
Second Amended Guaranty is superseded and replaced by this Guaranty; and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 2006 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 and maintain
the loan pursuant to the 2006 Note and the 2007 Note (defined below), the
Guarantor hereby agrees with the Lender, as follows:


 


Section 1.               Definitions. Reference is
hereby made to the 2006 Note for a statement of the terms thereof.  All terms used in this Guaranty which are
defined in the 2006 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


 


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2006 Note and that certain Fourth Amended and Restated Original Issue Discount
Secured Note dated as of the date hereof and issued to the Lender in an
aggregate original face amount of Two Million Four Hundred Eighty One Thousand
and 00/100 Dollars ($2,481,000.00) (the “2007 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 Third Amended and Restated Stock
Pledge Agreement (the “Stock Pledge Agreement”) in favor of Lender, which Stock
Pledge Agreement grants


 


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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 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


 


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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 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.


 


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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 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


 


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 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


 


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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 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.


 


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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 supercedes 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

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Name:
  Terry Kiefer

  
	
   

  	
   

  	
   

  	
   

  
	
  Attest:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  By: