Exhibit 10.30
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SECURED CONTINUING GUARANTEE OF PAYMENT
BY
COLORADO GREENHOUSE HOLDINGS, INC.
FOR THE BENEFIT OF
COLORADO SPRINGS PRODUCTION CREDIT ASSOCIATION
DATED
AS OF
JANUARY 24, 1997.
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SECURED CONTINUING GUARANTEE OF PAYMENT
THIS GUARANTEE OF PAYMENT (this "Guarantee") is executed as of the 24th day
of January, 1997 by Colorado Greenhouse Holdings, Inc. (hereinafter referred to
as the "Guarantor") in favor of Colorado Springs Production Credit Association
(hereinafter referred to as "Lender").
BACKGROUND
Colorado Greenhouse, Inc. (the "Borrower") has obtained or may desire at
some point in time and/or from time to time to obtain loans, advances and other
financial accommodations from Lender. Owing to Xxxxxxxx's financial condition
and/or other factors, Lender is not willing to extend or continue to extend
credit to the Borrower without the guarantee of the Guarantor. The Borrower is
a wholly-owned subsidiary of the Guarantor and the Guarantor has a financial
interest in the Borrower and is expecting to benefit from such credit, and
therefore the Guarantor is willing to furnish that guarantee in order to induce
Lender to extend or to continue to extend credit to the Borrower.
NOW, THEREFORE, in order to induce Xxxxxx to extend credit to the Borrower
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the Guarantor agrees as follows:
SECTION 1 GUARANTEE. The Guarantor hereby unconditionally and irrevocably
guarantees to Lender the punctual payment when due, whether at stated maturity,
by acceleration or otherwise, of all indebtedness, obligations and liabilities,
including without limitation all non-monetary covenants and other obligations,
of the Borrower to Lender, whether now existing or hereafter incurred, including
but not limited to those under or arising out of or in connection with any
loans, advances, acceptances, letters of credit, indemnities, foreign exchange
contracts or any other kind of contract or agreement under which the Borrower
may be indebted to Lender in any manner, whether for principal, interest, fees,
surcharges, expenses or otherwise. For ease of reference: (i) all such
indebtedness, obligations and liabilities shall hereinafter be collectively
referred to as the "Guaranteed Obligations"; and (ii) all instruments, documents
and agreements evidencing or relating to the Guaranteed Obligations (including
all loan agreements, promissory notes, reimbursement agreements, security
agreements, mortgages and deeds of trust) shall hereinafter collectively be
referred to as the "Loan Documents."
SECTION 2 SECURITY AGREEMENT. To secure the payment or performance of all
Guaranteed Obligations, the hereby grants to Lender a continuing security
interest in and to the following property and interests in property of the
Guarantor, whether now owned or existing or hereafter acquired or arising and
wheresoever located: all accounts, inventory, equipment, fixtures, farm
products, general intangibles, chattel paper, instruments, documents,
intellectual property, and all accessions to, substitutions for, and all
replacements, products and proceeds of the foregoing, all books and records
(including without limitation customer lists, credit files, computer programs,
printouts, data whether stored electronically or otherwise, and other computer
materials and records) pertaining to the foregoing, and all insurance policies
insuring the above collateral. Without limiting any of the foregoing, Guarantor
also (i) grants to Lender a continuing security interest in and to and a pledge
of all its interests in (as more specifically set forth in the "Pledge
Agreement" of even date herewith) the Guarantor's interests in Borrower, and
(ii) shall cause CG Member, Inc. ("CG Member"), a wholly-owned subsidiary of
Guarantor, also to grant to Lender a pledge and security interest in all its
interest in its subsidiary, Colorado Greenhouse, LLC (the "LLC"). All of the
property and interests of the Guarantor described
in this Section 2 (including, without limitation, the Guarantor's interest in
the Borrower) and CG Member's interest in the LLC shall hereinafter be referred
to as the "Collateral."
SECTION 3 GUARANTY OF PAYMENT; WAIVER OF DEFENSES, ETC. This Guarantee is
a guarantee of payment and not of collection, and of performance of Xxxxxxxx's
obligations to Lender. The Guarantor acknowledges and agrees that this Guarantee
is an absolute and independent obligation of the Guarantor and therefore waives
any right to require that any action be brought against the Borrower, another
guarantor or any other Person or entity which is liable for all or any part of
the Guaranteed Obligations, or to require that resort be had at any time to any
security for the Guaranteed Obligations or to any right of setoff or similar
right. The Guarantor's obligations hereunder shall be payable on demand and
shall be absolute and unconditional irrespective of (and the Guarantor hereby
expressly waives any defense or claim of discharge based on): (i) the alteration
or modification from time to time (whether material or otherwise); (ii) the
waiver by Lender of the Borrower's compliance with any of the terms and
conditions of the Loan Documents; (iii) the forbearance by Lender from
exercising any right or remedy it may have under the Loan Documents or under
law; (iv) any inability, failure, neglect or omission to obtain, perfect,
maintain, enforce, or realize upon any Collateral for the Guaranteed
Obligations, or to pursue or obtain any deficiency judgment against the Borrower
following any foreclosure of any security interest, mortgage or deed of trust;
(v) the loss or impairment of any Collateral, the subordination or release of
Xxxxxx's lien thereon, or the sale, pledge, surrender, exchange or substitution
of any Collateral; (vi) Lender releasing, waiving, discharging, or modifying the
obligations of one or more other guarantors (whether a party hereto or to a
separate agreement with Lender); (vii) the acceptance by Lender of any partial
payment on the Guaranteed Obligations or any Collateral therefor, or Lender
settling, subordinating, compromising, discharging, or releasing the Guaranteed
Obligations or any Collateral therefor; (viii) the unenforceability of the loan
Documents; (ix) any defenses or counterclaims assertable by the Borrower,
including any defense or counterclaim based on failure of consideration, fraud,
statute of frauds, bankruptcy, statute of limitations, lender liability, and
accord and satisfaction; (x) any setoff, counterclaim, recoupment or similar
right assertable by the Borrower, the Guarantor, or other guarantor (whether a
party hereto or to a separate guarantee); or (xi) any other circumstance which
constitutes a legal or equitable discharge of a guarantor or surety. This
Guarantee shall continue in full force and effect until five business days after
written notice of termination shall have been received by Xxxxxx.
Notwithstanding the foregoing, such notice of termination shall not be effective
as to any Guaranteed Obligations: (1) existing prior to the effective date of
termination; (2) arising thereafter pursuant to any commitment to extend credit
entered into prior to the effective date of such notice (regardless of whether
Lender has or from time to time acquires a right to suspend or terminate such
commitment owing to the occurrence of a default or otherwise); (3) any
extensions, renewals, or refinancing(s) of any Guaranteed Obligations referred
to in (1) or (2) above made before or after the effective date of termination;
and (4) interest, fees, expenses and other Guaranteed Obligations relating to
any of the foregoing. In addition, no such notice of termination shall in any
manner impair or alter Xxxxxx's rights or obligations hereunder with respect to
such Guaranteed Obligations (including under Sections 3 and 6 hereof) or affect
or impair the obligations of any other guarantor (whether a party hereto or to a
separate guarantee).
SECTION 4 SUBORDINATION AND SUBROGATION. The Guarantor hereby agrees that
all indebtedness and other obligations of the Borrower (now existing or
hereafter incurred) to the Guarantor are and shall be subordinated in right of
payment to the prior payment in full by the Borrower of its obligations to
Lender under the Loan Documents. During the existence of a default under the
Loan Documents, no payments by the Borrower shall be accepted by the Guarantor
with respect to such sub-
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ordinated obligations and, if any such payments are inadvertently received, the
same shall be held in trust and promptly turned over to Lender. The Guarantor
hereby waives all claims, rights or remedies that it may have at law or in
equity (including, without limitation, any law subrogating the Guarantor to the
rights of Lender) to seek contribution, indemnification, or any other form of
reimbursement from the Borrower, any other guarantor, or any other person or
entity now or hereafter primarily or secondarily liable for any obligations of
the Guarantor to Lender for any disbursement made by the Guarantor under or in
connection with this Guarantee. The Guarantor hereby stipulates and agrees that
any such disbursement made by the Guarantor shall be a contribution to the
equity capital of the Borrower.
SECTION 5 RECOVERY OF PAYMENT. If any payment received by Xxxxxx and
applied to the Guaranteed Obligations is subsequently set aside, recovered,
rescinded, or required to be returned for any reason (including, without
limitation, the bankruptcy, insolvency or reorganization of the Guarantor), the
Guaranteed Obligations to which such payment was applied shall for the purposes
of this Guarantee and all instruments or documents executed in connection
herewith or securing the Guarantor's obligations hereunder, be deemed to have
continued in existence, and this Guarantee shall be enforceable as to such
Guaranteed Obligations as fully as if such applications had never been made.
SECTION 6 INFORMATION REGARDING BORROWER; WAIVER OF NOTICES, ETC. The
Guarantor assumes responsibility for keeping fully informed of the financial
condition of the Borrower, its liability hereunder and all other circumstances
affecting the Borrower's ability to pay and perform the Guaranteed
Obligations. The Guarantor agrees that Lender shall have no duty to report to
or notify the Guarantor of: (i) any information which Lender shall receive about
the financial condition of the Borrower (including adverse matters); (ii) the
Borrower's performance under the Loan Documents (including nonpayment or the
occurrence of any other default); (iii) any circumstances bearing on the
Borrower's ability to perform the Guaranteed Obligations; (iv) any increases in
the amount of the Guaranteed Obligations or any renewals, extension or
refinancing(s) of any Guaranteed Obligation; (v) any actions taken by Lender or
the Borrower under any Loan Document; (vi) any matters relating to another
guarantor; (vii) any matter set forth in Section 3 hereof; or (viii) any other
matter relating to the Guaranteed Obligations; and the Guarantor hereby
expressly and unconditionally waives any defense or claim of discharge based on
the failure of Lender to report to notify the Guarantor of any such information.
In addition, the Guarantor hereby acknowledges that it has entered into this
Guarantee based upon its own independent knowledge of or investigation in to
the affairs of the Borrower and any other guarantor (whether a party hereto or
to a separate guarantee) and has not relied in any respect on Lender or any
officers, employees, or agents thereof.
SECTION 7 REPRESENTATIONS AND WARRANTIES. The Guarantor hereby represents
and warrants as follows:
(A) ORGANIZATION; POWER; ETC. The Guarantor: (i) is duly organized,
validly existing, and in good standing under the laws of its state of
incorporation or formation; (ii) is duly qualified to do business and is in good
standing in each jurisdiction in which the transaction of its business makes
such qualification necessary; (iii) has all requisite corporate and legal power
to own and operate its assets and to carry on its business and to enter into and
perform under this Guarantee; and (iv) has duly and lawfully obtained and
maintained all licenses, certificates, permits, authorizations, approvals, and
the like which are material to the conduct of its business or which my be
otherwise required by law, rule, regulation, ordinance, code, order or the like
(collectively, "Laws").
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(B) DUE AUTHORIZATION; NO VIOLATION; ETC. The execution and delivery
by the Guarantor of, and the performance by the Guarantor of its obligations
under, this Guarantee and all instruments and documents executed in connection
herewith have been duly authorized by all requisite corporate or other action
on the part of the Guarantor and do not and will not: (i) conflict with, or
constitute (with or without the giving of notice and/or the passage of time
and/or the occurrence of any other condition) a default under, any other
agreement to which the Guarantor is a party or by which it or any of its
property may be bound or affected, or with any provision of its certificate of
incorporation, bylaws or other organizational documents; (ii) require the
consent, permission, authorization, order or license of any governmental
authority or of any part to any agreement to which the Guarantor is a party or
by which it or any of its property may be bound or affected, except as has been
obtained and are in full force and effect; (iii) violate any provision of any
law, rule regulation, order, writ judgment, injunction, decree, determination
or aware presently in effect applicable to it; or (iv) result in, or require,
the creation or imposition of any lien, security interest or other charge or
encumbrance upon or with respect to any of its properties now owned or hereafter
acquired, except as created hereunder in favor of Lender).
(C) BINDING AGREEMENT. This Guarantee and each instrument and
document executed in connection herewith is, or when executed and delivered will
be, the legal, valid, and binding obligation of the Guarantor, enforceable in
accordance with its terms, subject only to limitations on enforceability
imposed by applicable bankruptcy, insolvency, reorganization, moratorium, or
similar Laws affecting creditor's rights generally.
(D) LITIGATION. There are no pending legal, arbitration, or
governmental actions or proceedings to which the Guarantor is a party or to
which any of its property is subject which, if adversely determined, could
have a material adverse effect on the condition, financial or otherwise,
operations, properties, or business of the Guarantor, or on the ability of the
Guarantor to perform its obligations hereunder or under any instrument or
document executed in connection herewith, and to the best of the Guarantor's
knowledge, no such actions or proceedings are threatened or contemplated.
(E) TITLE TO PROPERTY. The Guarantor has title to, or valid
leasehold interests in, all of its property, real and personal, (other than any
property disposed of in the ordinary course of business), and none of its
property is subject to any "Lien" (as defined in Section 9(B) hereof), except as
permitted under Section 9(B).
(F) COMPLIANCE WITH LAWS, ENVIRONMENTAL MATTERS, ETC. All of the
properties of the Guarantor and all of its operations are in compliance in all
material respects with all applicable Laws including, without limitation, all
Laws relating to the environment. No property owned or leased by the Guarantor
is being used or, to its knowledge, has been used for the disposal, treatment,
storage, processing or handling of hazardous waste or materials (as defined
under any environment Law) and no investigation, claim, litigation, proceeding,
order, judgment, decree, settlement, lien or the like with respect to any
environmental matter is proposed, threatened, anticipated or in existence with
respect to its properties or operations. In addition, no environmental
contamination or condition currently exists on any property of the Guarantor or,
to its knowledge, any adjoining property, which could delay the sale or other
disposition of, or could have (or already has had) an adverse effect on the
value of, its property.
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(G) COMPLIANCE WITH GUARANTEE. As of the date hereof, the Guarantor
is operating its business in compliance with all of the covenants set forth in
this Guarantee.
SECTION 8 AFFIRMATIVE COVENANTS. Unless otherwise agreed to in writing by
Xxxxxx, while this Guarantee is in effect, whether or not any Guaranteed
Obligations are outstanding hereunder, the Guarantor agrees to:
(A) CORPORATE EXISTENCE, LICENSES, ETC. Preserve and keep in full
force and effect its and its subsidiaries' existence and good standing in the
jurisdiction of their respective incorporation or formation, qualify and remain
qualified to transact business in all jurisdictions where such qualification
is required, and obtain and maintain all licenses, certificates, permits,
authorizations, approvals, and the like which are material to the conduct of its
business or required by Law.
(B) COMPLIANCE WITH LAWS. Comply in all material respects with all
applicable Laws, including, without limitation, all Laws relating to
environmental protection. In addition, the Guarantor agrees to cause all
persons occupying or present on any of its properties to comply in all material
respects with all Laws relating to such properties.
(C) INSURANCE. Maintain insurance with insurance companies or
associations acceptable to Lender in its reasonable discretion in such amounts
and covering such risks as are usually carried by companies engaged in the
same or similar business and similarly situated, and make such increases in
the type or amount of coverage as Lender may reasonably request. All such
policies insuring any collateral for the Guarantor's obligations to Lender
shall have mortgagee or lender loss payable clauses or endorsements in form
and content acceptable to Lender in its reasonable discretion. At Lender's
request, certificates of insurance for all policies (or such other proof of
compliance with this Subsection as may be satisfactory to Lender) shall be
delivered to Lender.
(D) PROPERTY MAINTENANCE. Maintain all of its property that is
necessary to or useful in the proper conduct of its business in good working
condition, ordinary wear and tear excepted.
(E) BOOKS AND RECORDS. Keep adequate records and books of account in
which complete entries will be made in accordance with generally accepted
accounting principles ("GAAP") consistently applied.
(F) INSPECTION. Permit Lender or its agents, upon reasonable notice
and during normal business hours or at such other times as the parties may
agree, to examine its properties, books, and records, and to discuss its
affairs, finances, and accounts, with its respective officers, directors,
employees, and independent certified public accountants.
(G) REPORTS AND NOTICES. Furnish to Lender:
(I) ANNUAL FINANCIAL STATEMENTS. As soon as available, but in no
event more than 120 days after the end of each fiscal year of the Guarantor
occurring during the term hereof, the consolidated annual financial statements
of the Guarantor and its consolidated subsidiaries prepared in accordance with
GAAP consistently applied. Such financial statements shall: (a) be audited by
Xxxxxx Xxxxxxxx & Co. or such other independent certified public accountant
selected by the Guarantor and acceptable to Lender, in its reasonable
discretion; (b) be accompanied by a report of such
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accountant containing an opinion thereon acceptable to Lender; (c) be prepared
in reasonable detail and in comparative form; and (d) include a balance sheet, a
statement of income, a statement of retained earnings, a statement of cash
flows, and all notes and schedules relating thereto.
(II) INTERIM FINANCIAL STATEMENTS. As soon as available, but in no
event more than 30 days after the end of each quarter, a consolidated balance
sheet of Guarantor as of the end of such quarter, a consolidated statement of
income for Guarantor and its consolidated subsidiaries for such period and for
the period year to date, and such other interim statements as Lender may
specifically request, all prepared in reasonable detail and in comparative
form inaccordance with GAAP.
(III) NOTICE OF DEFAULT. Promptly after becoming aware thereof,
notice of the breach of any covenant contained in this Guarantee or any
instrument or document executed in connection herewith.
(IV) NOTICE OF NON-ENVIRONMENTAL LITIGATION. Promptly after the
commencement thereof, notice of the commencement of all actions, suits, or
proceedings before any court, arbitrator, or governmental department,
commission, board, bureau, agency, or instrumentality affecting the Guarantor
which, if determined adversely to the Guarantor, could have a material adverse
effect on the financial condition, properties, profits, or operations of the
Guarantor.
(V) NOTICE OF ENVIRONMENTAL LITIGATION, ETC. Promptly after receipt
thereof, notice of the receipt of all pleadings, orders, complaints,
indictments, or any other communication alleging a condition that may require
the Guarantor to undertake or to contribute to a cleanup or other response under
environmental Laws, or which seek penalties, damages, injunctive relief, or
criminal sanctions related to alleged violations of such Laws, or which claim
personal injury or property damage to any person as a result of environmental
factors or conditions.
(VI) OTHER INFORMATION. Such other information regarding the
condition or operations, financial or otherwise, of the Guarantor as Lender may
from time to time reasonably request.
SECTION 9 NEGATIVE COVENANTS. Unless otherwise agreed to in writing by
Xxxxxx, while this Guarantee is in effect, whether or not any Guaranteed
Obligations are outstanding, the Guarantor will not:
(A) BORROWINGS. Create, incur, assume, or allow to exist, directly
or indirectly, any indebtedness or liability for borrowed money (including trade
or bankers' acceptances), letters of credit, or the deferred purchase price of
property or services (including capitalized leases), except for: (i) debt to
Lender; (ii) accounts payable to trade creditors incurred in the ordinary course
of business; and (iii) current operating liabilities (other than for borrowed
money) incurred in the ordinary course of business.
(B) LIENS. Create, incur, assume, or allow to exist any mortgage,
deed of trust, pledge, lien (including the lien of an attachment, judgment, or
execution), security interest, or other encumbrance of any kind upon any of its
property, real or personal (collectively, "Liens"). The foregoing
restrictions shall not apply to: (i) Liens in favor of Lender; (ii) Liens for
taxes, assessments, or governmental charges that are not past due, or if past
due, are being contested in good faith and
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by appropriate proceedings, the amount secured (including interest and
penalties) does not exceed $100,000.00, the Liens are stayed and adequate
reserves have been established in accordance with GAAP; (iii) pledges and
deposits under workers' compensation, unemployment insurance, and social
security Laws; (iv) pledges and deposits to secure the performance of bids,
tenders, contracts (other than contracts for the payment of money), and like
obligations arising in the ordinary course of business as conducted on the date
hereof; (v) Liens imposed by Law in favor of mechanics, material suppliers,
warehouses, and like persons that secure obligations that are not past due, or
if past due, are being contested in good faith and by appropriate proceedings,
the Liens are stayed, and adequate reserves have been established in accordance
with GAAP; and (vi) easements, rights-of-way, restrictions, and other similar
encumbrances which, in the aggregate, do not materially interfere with the
Company's occupation, use, and enjoyment of the property or assets encumbered
thereby or materially impair the value of the property subject thereto.
(C) MERGERS, ACQUISITIONS, ETC. Without the prior written consent of
Lender, which consent shall not be unreasonably withheld, merge or consolidate
with any other entity or acquire all or a material part of the assets of any
person or entity, or form or create any new subsidiary or affiliate, or commence
operations under any other name, organization or entity, including any joint
venture; provided, however, that no prior consent shall be necessary if prior to
undertaking any of the above actions Guarantor shall have delivered to Lender
and Lender shall not have objected within fifteen (15) days of receipt of notice
to a certificate delivered by notice pursuant to Section 11 hereof from the
chief executive officer or chief financial officer of Guarantor to the effect
that: (i) prior to and immediately after giving effect to such transaction, no
Event of Default shall exist under any Loan Document; and (ii) immediately after
giving effect to such transaction, the tangible net worth and the ratio of total
capitalization to indebtedness (calculated in accordance with GAAP) of
Guarantor, or any successor entity into which Guarantor is merged, shall not be
less than that of the Guarantor immediately prior to such transaction.
(D) TRANSFER OF ASSETS. Sell, transfer, lease, or otherwise dispose
of any of its assets, except in the ordinary course of business.
(E) LOANS AND INVESTMENTS. Make any loan or advance to, or make any
investment in, or make any capital contribution to, or purchase or make any
commitment to purchase any stocks, bonds, notes or other securities of, any
person or entity, except for: (i) loans to or investments in Colorado
Greenhouse, Inc. or Colorado Greenhouse, LLC, or other subsidiaries of Guarantor
permitted hereunder, (ii) securities or deposits issued or fully insured as to
payment by the United States of America or any agency thereof; and (iii) stock
in, or obligations of, Lender.
(F) CONTINGENT LIABILITIES. Assume, guarantee, become liable as a
surety, endorse, contingently agree to purchase, or otherwise be or become
liable, directly or indirectly (including, but not limited to, by means of a
maintenance agreement, an asset or stock purchase agreement, or any other
agreement designed to ensure any creditor against loss), for or on account of
the obligation of any person or entity, except by the endorsement of negotiable
instruments for deposit or collection or similar transactions in the ordinary
course of the Guarantor's business.
(G) CHANGE IN BUSINESS. Engage in any business activities or
operations substantially different from or unrelated to the Guarantor's present
business activities or operations.
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SECTION 10 EXPENSES. In the event Lender employs counsel to protect or
enforce its rights hereunder against the Guarantor, all reasonable attorneys'
fees arising from such services and all out-of-pocket expenses, costs, and
charges in any way or respect arising in connection therewith or relating
thereto shall be paid by such Guarantor.
SECTION 11 NOTICES. All notices provided for herein shall be writing
(including facsimile) and shall be deemed to be duly given upon delivery if
personally delivered or sent by telegram or facsimile transmission or three days
after mailing if sent by express mail, certified mail, registered mail or other
delivery service providing a return receipt therefor, to the following addresses
or facsimile numbers or to such other address or facsimile number as either
party may specify by notice to the other: (a) If to Lender, to Colorado Springs
Production Credit Association, 0000 Xxxxxxx Xxxxx Xxxxx, X.X. Box 9290, Colorado
Springs, Colorado 80932-9290, Facsimile No. (000) 000-0000; and (b) if to the
Guarantor, to Colorado Greenhouse Holdings, Inc., 0000 Xxxx Xxxxxx Xxxx 00,
X.X. Box 309, Fort Xxxxxx, Colorado 80621, Facsimile No. (000) 000-0000.
SECTION 12 TERM OF AGREEMENT. This Agreement and all guarantees,
covenants and agreements of the Guarantor contained herein shall continue in
full force and effect and shall not be discharged until such time as all of
the Guaranteed Obligations shall be paid or otherwise discharged in full.
SECTION 13 AMENDMENTS, ETC. This writing is intended by the parties as a
final expression of their agreement and is also intended as a complete and
exclusive statement of the terms of that agreement. No amendment or waiver of
any provision of this Guarantee nor consent to any departure by the Guarantor
herefrom shall be effective unless the same shall be in writing and signed by
Xxxxxx, and then such waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given.
SECTION 14 NO WAIVER; REMEDIES. No failure on the part of Lender to
exercise, and no delay in exercising, any right hereunder shall operate as
waiver thereof; nor shall any single or partial exercise of any right hereunder
preclude any other or further exercise thereof or the exercise of any other
right.
SECTION 15 GOVERNING LAW. Except to the extent governed by applicable
Federal law, this Guarantee shall be governed by and construed in accordance
with the laws of the State of Colorado, without reference to choice of Law
doctrine.
SECTION 16 NOTICE OF ACCEPTANCE. The Guarantor hereby waives notice of
acceptance hereof.
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SECURED CONTINUING GUARANTEE OF PAYMENT
SIGNATURE PAGE
SECTION 17 WAIVER OF JURY TRIAL. TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, GUARANTOR AND XXXXXX XXXXXX IRREVOCABLY AND EXPRESSLY WAIVE ALL
RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING, OR COUNTERCLAIM (WHETHER
BASED UPON CONTRACT, TORT, OR OTHERWISE) ARISING OUT OF OR RELATING TO ANY OF
THE LOAN DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED THEREBY.
IN WITNESS WHEREOF, the Guarantor has caused this Secured Continuing
Guarantee of Payment to be executed by its duly authorized officer as of the
date shown above.
COLORADO GREENHOUSE HOLDINGS,
INC.
By: /s/ Xxxxxx Xxxxxxxxx
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Title: Chief Executive Officer
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