GENERAL CONTINUING
GUARANTY
This GENERAL CONTINUING
GUARANTY (this “ Guaranty ”), dated as
of August 22, 2008, is executed and delivered by HYDROGEN
CORPORATION, a Nevada corporation (“
Guarantor ”), in favor of FEDERATED KAUFMANN
FUND, a portfolio of Federated Equity Funds, a
Massachusetts business trust, as agent for the Lenders (in such
capacity, together with its successors and assigns, if any, in such
capacity, “ Agent ”), in light of the
following:
WHEREAS , Hydrogen, L.L.C., an Ohio limited liability
company (“ Borrower ”), the Lenders, and Agent
are, contemporaneously herewith, entering into that certain Loan
and Security Agreement of even date herewith (as amended, restated,
modified, renewed or extended from time to time, the “
Loan Agreement ”);
WHEREAS , Borrower is the direct subsidiary of Guarantor
and, Guarantor will benefit by virtue of the financial
accommodations extended to Borrower by the Lenders; and
WHEREAS , in order to induce the Lenders to enter into
the Loan Agreement and Loan Documents and to extend the loans and
other financial accommodations to Borrower pursuant to the Loan
Agreement, and in consideration thereof, and in consideration of
any loans or other financial accommodations heretofore or hereafter
extended by the Lenders to Borrower pursuant to the Loan Documents,
Guarantor has agreed to guaranty the Guarantied
Obligations.
NOW, THEREFORE , in consideration of the foregoing, Guarantor
hereby agrees as follows:
1.
Definitions and
Construction .
(a) Definitions . Capitalized terms used herein and not
otherwise defined herein shall have the meanings ascribed to them
in the Loan Agreement and Loan Documents. The following terms, as
used in this Guaranty, shall have the following
meanings:
“ Agent ” has the meaning set
forth in the preamble to this Guaranty.
“ Bankruptcy Code ” means the
Bankruptcy Reform Act of 1978, as amended 11 U.S.C. §§101
et seq ., and the regulations adopted and
promulgated pursuant thereto.
“ Borrower ” has the meaning
set forth in the recitals to this Guaranty.
“ Loan Agreement ” has the
meaning set forth in the recitals to this Guaranty.
“ Guarantied Obligations ”
means the obligations and liabilities of the Borrower and Guarantor
to Agent and the Lenders (including, without limitation, the
obligations whether direct or indirect, absolute or contingent, due
or to become due, or now existing or hereafter incurred) that may
arise under, or out of or in connection with the Loan Agreement,
this Guaranty, and any other Loan Documents, whether on account of
covenants, interest, principal, reimbursement obligations, fees,
indemnities, costs, expenses (including, without limitation, all
reasonable fees and disbursements of counsel to Agent that are
required to be paid by the Borrower or Guarantor pursuant to the
terms of the Loan Agreement, this Guaranty, or any of the Loan
Documents, respectively).
“ Guarantor ” has the meaning
set forth in the preamble to this Guaranty.
“ Guaranty ” has the meaning
set forth in the preamble to this Guaranty.
“ Lenders ” means,
individually and collectively, each of the lenders identified on
the signature pages to the Loan Agreement, and shall include any
other Person made a party to the Loan Agreement as a Lender in
accordance with the provisions thereof (together with their
respective successors and assigns).
“ Loan Documents ” shall mean
the Loan Agreement, this Guaranty and the Disclosure Schedules, and
any and all other agreements, notes, documents, mortgages,
financing statements, guaranties, intercreditor agreements,
subordination agreements, certificates and instruments executed
and/or delivered by Borrowers or any other Person to Agent or the
Lenders pursuant to and in connection with the Loan and this
Agreement, including, without limitation, the Term Loan Notes, the
Closing Date Warrants, the Default Warrants, the Membership
Interest Pledge Agreement and all other documents entered into by
the parties in connection with the transactions contemplated hereby
. “ Record ” means information
that is inscribed on a tangible medium or which is stored in an
electronic or other medium and is retrievable in perceivable
form.
“ Voidable Transfer ” has the
meaning set forth in Section 10 of this
Guaranty.
(b)
Construction
. Unless the context of this
Guaranty clearly requires otherwise, references to the plural
include the singular, references to the singular include the
plural, the part includes the whole, the terms
“includes” and “including” are not
limiting, and the term “or” has, except where otherwise
indicated, the inclusive meaning represented by the phrase
“and/or.” The words “hereof,”
“herein,” “hereby,”
“hereunder,” and other similar terms in this Guaranty
refer to this Guaranty as a whole and not to any particular
provision of this Guaranty. Section, subsection, clause, schedule,
and exhibit references herein are to this Guaranty unless otherwise
specified. Any reference in this Guaranty to any agreement,
instrument, or document shall include all alterations, amendments,
changes, extensions, modifications, renewals, replacements,
substitutions, joinders, and supplements, thereto and thereof, as
applicable (subject to any restrictions on such alterations,
amendments, changes, extensions, modifications, renewals,
replacements, substitutions, joinders, and supplements set forth
herein). Neither this Guaranty nor any uncertainty or ambiguity
herein shall be construed or resolved against the Agents or Lenders
or Borrower, whether under any rule of construction or otherwise.
On the contrary, this Guaranty has been reviewed by all parties and
shall be construed and interpreted according to the ordinary
meaning of the words used so as to accomplish fairly the purposes
and intentions of Guarantor and Agent. Any reference herein to the
satisfaction, repayment or payment in full of the Guarantied
Obligations shall mean the payment in full in cash (or cash
collateralization in accordance with the terms of the Loan
Agreement, or with respect to Letters of Credit, any such Letters
of Credit supported by another letter of credit reasonably
satisfactory to Agent) of all Guarantied Obligations other than
contingent indemnification Guarantied Obligations to remain
outstanding and are not required to be repaid or cash
collateralized pursuant to the provisions of the Loan Agreement and
the full and final termination of any commitment to extend any
financial accommodations under the Loan Agreement and any other
Loan Document. Any reference herein to any Person shall be
construed to include such Person’s successors and assigns.
Any requirement of a writing contained herein shall be satisfied by
the transmission of a Record and any Record transmitted shall
constitute a representation and warranty as to the accuracy and
completeness of the information contained therein. The captions and
headings are for convenience of reference only and shall not affect
the construction of this Guaranty.
2.
Guarantied
Obligations .
Guarantor hereby, unconditionally, absolutely and irrevocably
guarantees to Agent, for the benefit of the Lenders, the prompt and
complete payment and performance when due (whether at the stated
maturity, by acceleration or otherwise) of the Guarantied
Obligations. Guarantor further agrees to pay any and all reasonable
expenses (including, without limitation, all reasonable fees and
disbursements of counsel) that may be paid or incurred by Agent in
enforcing any rights with respect to, or collecting, any or all of
the Guarantied Obligations and/or enforcing any rights with respect
to, or collecting against, Guarantor under this Guaranty unless,
and to the extent, Guarantor is the prevailing party in any
dispute, claim or action relating thereto, in which event Guarantor
shall be entitled to recover from Agent Guarantor’s
reasonable expenses (including, without limitation, all reasonable
fees and disbursements of counsel) incurred in connection
therewith. This Guaranty shall remain in full force and effect
until the Guarantied Obligations are paid in full, notwithstanding
that from time to time prior thereto the Borrower may be free from
any Guarantied Obligations. No payment or payments made by
Borrower, Guarantor, any other guarantor or any other Person
received or collected by Agent from Borrower, Guarantor, any other
guarantor or any other Person by virtue of any action or proceeding
or any set-off or appropriation or application at any time or from
time to time in reduction of or in payment of the Guarantied
Obligations shall be deemed to modify, reduce, release or otherwise
affect the liability of Guarantor hereunder except to the extent of
the reduction of the Guarantied Obligations as a consequence
thereof. Guarantor shall remain liable for the Guarantied
Obligations until the date the Guarantied Obligations are satisfied
and paid in full.
3.
Continuing
Guaranty . This
Guaranty includes Guarantied Obligations arising under successive
transactions continuing, compromising, extending, increasing,
modifying, releasing, or renewing the Guarantied Obligations,
changing the interest rate, payment terms, or other terms and
conditions thereof, or creating new or additional Guarantied
Obligations after prior Guarantied Obligations have been satisfied
in whole or in part. To the maximum extent permitted by law,
Guarantor hereby waives any right to revoke this Guaranty as to
future Guarantied Obligations. If such a revocation is effective
notwithstanding the foregoing waiver, Guarantor acknowledges and
agrees that (a) no such revocation shall be effective until
written notice thereof has been received by Agent, (b) no such
revocation shall apply to any Guarantied Obligations in existence
on the date of receipt by Agent of such written notice (including
any subsequent continuation, extension, or renewal thereof, or
change in the interest rate, payment terms, or other terms and
conditions thereof), (c) no such revocation shall apply to any
Guarantied Obligations made or created after such date to the
extent made or created pursuant to a legally binding commitment of
the Lenders in existence on the date of such revocation,
(d) no payment by Guarantor, Borrower, or from any other
source, prior to the date of Agent’s receipt of written
notice of such revocation shall reduce the maximum obligation of
Guarantor hereunder, and (e) any payment by Borrower or from
any source other than Guarantor subsequent to the date of such
revocation shall first be applied to that portion of the Guarantied
Obligations as to which the revocation is effective and which are
not, therefore, guarantied hereunder, and to the extent so applied
shall not reduce the maximum obligation of Guarantor
hereunder.
4.
Performance Under this
Guaranty . In
the event that Borrower fails to make any payment of any Guarantied
Obligations, on or prior to the due date thereof, or if Borrower
fails to perform, keep, observe, or fulfill any other obligation
referred to in Section 2 of this Guaranty in the manner
provided in the Loan Agreement or Loan Documents, Guarantor
immediately shall cause, as applicable, such payment in respect of
the Guarantied Obligations to be made or such obligation to be
performed, kept, observed, or fulfilled.
5.
Primary
Obligations .
This Guaranty is a primary and original obligation of Guarantor, is
not merely the creation of a surety relationship, and is an
absolute, unconditional, and continuing guaranty of payment and
performance which shall remain in full force and effect without
respect to future changes in conditions. Guarantor hereby agrees
that it is directly, jointly and severally with any other guarantor
of the Guarantied Obligations, liable to Agent, for the benefit of
the Lenders, that the obligations of Guarantor hereunder are
independent of the obligations of Borrower or any other guarantor,
and that a separate action may be brought against Guarantor,
whether such action is brought against Borrower or any other
guarantor or whether Borrower or any other guarantor is joined in
such action. Guarantor hereby agrees that its liability hereunder
shall be immediate and shall not be contingent upon the exercise or
enforcement by Agent of whatever remedies they may have against
Borrower or any other guarantor, or the enforcement of any lien or
realization upon any security by Agent. Guarantor hereby agrees
that any release which may be given by Agent to Borrower or any
other guarantor, or with respect to any property or asset subject
to a lien, shall not release Guarantor. Guarantor consents and
agrees that Agent shall be under any obligation to marshal any
property or assets of Borrower or any other guarantor in favor of
Guarantor, or against or in payment of any or all of the Guarantied
Obligations.
6.
Pledge of
Collateral . As collateral security for the prompt
satisfaction and performance of the Guarantied Obligations,
Guarantor hereby pledges, collaterally assigns and hypothecates to
Agent (for the benefit of the Lenders) a first priority continuing
security interest in and lien upon all of the membership interests
in the Borrower and other good and valuable collateral set forth in
that certain Membership Interest Pledge Agreement of even date
herewith, between the Guarantor, Agent, and the Lenders.
(a) To the fullest extent permitted by applicable
law, Guarantor hereby waives: (i) notice of acceptance hereof;
(ii) notice of any loans or other financial accommodations
made or extended under the Loan Agreement or Loan Documents, or the
creation or existence of any Guarantied Obligations;
(iii) notice of the amount of the Guarantied Obligations,
subject, however, to Guarantor’s right to make inquiry of
Agent to ascertain the amount of the Guarantied Obligations at any
reasonable time; (iv) notice of any adverse change in the
financial condition of Borrower or of any other fact that might
increase Guarantor’s risk hereunder; (v) notice of
presentment for payment, demand, protest, and notice thereof as to
any instrument among the Loan Documents and ; (vi) notice of
any Event of Default under any of the Loan Documents; and
(vii) all other notices (except if such notice is specifically
required to be given to Guarantor under this Guaranty or any other
Loan Documents to which Guarantor is a party) and demands to which
Guarantor might otherwise be entitled.
(b) To the fullest extent permitted by applicable
law, Guarantor hereby waives the right by statute or otherwise to
require any member of the Lenders, to institute suit against
Borrower or any other guarantor or to exhaust any rights and
remedies which any Lender, has or may have against Borrower or any
other guarantor. In this regard, Guarantor agrees that it is bound
to the payment of each and all Guarantied Obligations, whether
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