GUARANTY
The undersigned, for value received, unconditionally and absolutely
guarantee(s)
to Comerica Bank ("Bank") and to the Bank's successors and assigns,
payment when
due, whether by stated maturity, demand, acceleration or otherwise,
of all
existing and future indebtedness to the Bank of Akeena Solar, Inc.
("Borrower")
or any successor in interest, including without limit any
debtor-in-possession
or trustee in bankruptcy which succeeds to the interest of this
party or person
(jointly and severally the "Borrower"), however this Indebtedness
has been or
may be incurred or evidenced, whether absolute or contingent direct
or indirect,
voluntary or involuntary, liquidated or unliquidated, joint or
several, and
whether or not known to the undersigned at the time of this
Guaranty or at the
time any future indebtedness is incurred (the "Indebtedness").
The indebtedness guaranteed includes without limit: (a) any and all
direct
indebtedness of the Borrower to the Bank, including indebtedness
evidenced by
any and all promissory notes; (b) any and all obligations or
liabilities of the
Borrower to the Bank arising under any guaranty where the Borrower
has
guaranteed the payment of indebtedness owing to the Bank from a
third party; (c)
any and all obligations or liabilities of the Borrower to the Bank
arising from
applications or agreements for the issuance of letters of credit;
(d) any and
all obligations or liabilities of the Borrower to the Bank arising
out of any
other agreement by the Borrower including without limit any
agreement to
indemnity the Bank for environmental liability or to clean up
hazardous waste;
(e) any and all indebtedness, obligations or liabilities for which
the Borrower
would otherwise be liable to the Bank were it not for the
invalidity,
irregularly or unenforceability of them by reason of any
bankruptcy, insolvency
or other law or order of any kind, or for any other reason,
including without
limit liability for interest and attorneys' fees on, or in
connection with, any
of the indebtedness from and after the filing by or against the
Borrower of a
bankruptcy petition whether an involuntary or voluntary bankruptcy
case,
including, without limitation, all attorneys' fees and costs
incurred in
connection with motions for relief from stay, cash collateral
motions,
nondischargeability motions, preference liability motions,
fraudulent conveyance
liability motions, fraudulent transfer liability motions and all
other motions
brought by Borrower, Guarantor, Bank or third parties in any way
relating to
Bank's rights with respect to such Borrower, Guarantor, or third
party and/or
affecting any collateral securing any obligation owed to Bank by
Borrower,
Guarantor, or any third party, probate proceedings, on appeal or
otherwise; (f)
any and all amendments, modifications, renewals and/or extensions
or any of the
above, including without limit amendments, modifications, renewals
and/or
extensions which are evidenced by new or additional instruments,
documents or
agreements; and (g) all costs of collecting indebtedness, including
without
limit reasonable attorneys' fees and costs.
The undersigned waive(s) notice of acceptance of this Guaranty and
presentment,
demand, protest, notice of protest, dishonor, notice of dishonor,
notice of
default, notice of intent to accelerate or demand payment of any
indebtedness,
and diligence in collecting any indebtedness, and agree(s) that the
Bank may
modify the terms of any indebtedness, compromise, extend, increase,
accelerate,
renew or forbear to enforce payment of any or all indebtedness, or
permit the
Borrower to incur additional indebtedness, all without notice to
the undersigned
and without affecting in any manner the unconditional obligation of
the
undersigned under this Guaranty. The undersigned further waive(s)
any and all
other notices to which the undersigned might otherwise be entitled.
The
undersigned acknowledge(s) and agree(s) that the liabilities
created by this
Guaranty are direct and are not conditioned upon pursuit by the
Bank of any
remedy the Bank may have against the Borrower or any other person
or any
security. No invalidity, irregularity or unenforceability of any
part or all of
the indebtedness or any documents evidencing the same, by reason of
any
bankruptcy, insolvency or other law or order of any kind or for any
other
reason, and no defense or setoff available at any time to the
Borrower, shall
impair, affect or be a defense or setoff to the obligations of the
undersigned
under this Guaranty.
The undersigned deliver(s) this Guaranty based solely on the
undersigned's
independent investigation of the financial condition of the
Borrower and is
(are) not relying on any information furnished by the Bank. The
undersigned
assume(s) full responsibility for obtaining any further information
concerning
the Borrower's financial condition, the status of the indebtedness
or any other
matter which the undersigned may deem necessary or appropriate from
time to
time. The undersigned waive(s) any duty on the part of the Bank,
and agree(s)
that it is not relying upon nor expecting the Bank to disclose to
the
undersigned any fact now or later known by the Bank, whether
relating to the
operations or condition of the Borrower, the existence, liabilities
or financial
condition of any co-guarantor of the indebtedness, the occurrence
of any default
with respect to the indebtedness, or otherwise, notwithstanding any
effect these
facts may have upon the undersigned's risk under this Guaranty or
the
undersigned's rights against the Borrower. The undersigned
knowingly accept(s)
the full range of risk encompassed in this Guaranty, which risk
includes without
limit the possibility that the Borrower may incur indebtedness to
the Bank after
the financial condition of the Borrower, or its ability to pay its
debts as they
mature, has deteriorated.
The undersigned represent(s) and warrant(s) that: (a) the Bank has
made no
representation to the undersigned as to the creditworthiness of the
Borrower;
and (b) the undersigned has (have) established adequate means of
obtaining from
the Borrower on a continuing basis financial and other information
pertaining to
the Borrower's financial condition. The undersigned agree(s) to
keep adequately
informed of any facts, events or circumstances which might in any
way affect the
risks of the undersigned under this Guaranty.
The undersigned grant(s) to the Bank a security interest in and the
right of
setoff as to any and all property of the undersigned now or later
in the
possession of the Bank. The undersigned subordinate(s) any claim of
any nature
that the undersigned now or later has (have) against the Borrower
to and in
favor of all indebtedness and agree(s) not to accept payment or
satisfaction of
any claim that the undersigned now or later may have against the
Borrower
without the prior written consent of the Bank. Should any payment,
distribution,
security, or proceeds, be received by the undersigned upon or with
respect to
any claim that the undersigned now or may later have against the
Borrower, the
undersigned shall immediately deliver the same to the Bank in the
form received
(except for endorsement or assignment by the undersigned where
required by the
Bank) for application on the indebtedness, whether matured or
unmatured, and
until delivered the same shall be held in trust by the undersigned
as the
property of the Bank. The undersigned further assign(s) to the Bank
as
collateral for the obligations of the undersigned under this
Guaranty all claims
of any nature that the undersigned now or later has (have) against
the Borrower
(other than any claim under a deed of trust or mortgage covering
real property)
with full right on the part of the Bank, in its own name or in the
name of the
undersigned, to collect and enforce these claims.
The undersigned agree(s) that no security now or later held by the
Bank for the
payment of any indebtedness, whether from the Borrower, any
guarantor, or
otherwise, and whether in the nature of a security interest,
pledge, lien,
assignment, setoff, suretyship, guaranty, indemnity, insurance or
otherwise,
shall affect in any manner the unconditional obligation of the
undersigned under
this Guaranty, and the Bank, in its sole discretion, without notice
to the
undersigned, may release, exchange, enforce and otherwise deal with
any security
without affecting in any manner the unconditional obligation of the
undersigned
under this Guaranty. The undersigned acknowledges(s) and agree(s)
that the Bank
has no obligation to acquire or perfect any lien on or security
interest in any
asset(s), whether realty or personality, to secure payment of the
indebtedness,
and the undersigned is (are) not relying upon any asset(s) in which
the Bank has
or may have a lien or security interest for payment of the
indebtedness.
The undersigned acknowledge(s) that the effectiveness of this
Guaranty is not
conditioned on any or all of the indebtedness being guaranteed by
anyone else.
Until the indebtedness is irrevocably paid in full, the undersigned
waive(s) any
and all rights to be subrogated to the position of the Bank or to
have the
benefit of any lien, security interest or other guaranty now or
later held by
the Bank for the indebtedness or to enforce any remedy which the
Bank now or
later has against the Borrower or any other person. Until the
indebtedness is
irrevocably paid in full, the undersigned shall have no right of
reimbursement,
indemnity, contribution or other right of recourse to or with
respect to the
Borrower or any other person. The undersigned agree(s) to indemnity
and hold
harmless the Bank from and against any and all claims, actions,
damages, costs
and expenses, including without limit reasonable attorneys' fees,
incurred by
the Bank in connection with the
1
undersigned's exercise of any right of subrogation, contribution,
indemnification or recourse with respect to this Guaranty. The Bank
has no duty
to enforce or protect any rights which the undersigned may have
against the
Borrower or any other person and the undersigned assume(s) full
responsibility
for enforcing and protecting these rights.
Notwithstanding any provision of the preceding paragraph or
anything else in
this Guaranty to the contrary, if any of the undersigned is or
becomes "an
"insider" or "affiliate" (as defined in Section 101 of the Federal
Bankruptcy
Code, as it may be amended) with respect to the Borrower, then that
undersigned
irrevocably and absolutely waives any and all rights of
subrogation,
contribution, indemnification, recourse, reimbursement and any
similar rights
against the Borrower (or any other guarantor) with respect to this
Guaranty,
whether such rights arise under an express or implied contract or
by operation
of law. It is the intention of the parties that the undersigned
shall not be (or
be deemed to be) a "creditor" (as defined in Section 101 of the
Federal
Bankruptcy Code, as it may be amended) of the Borrower (or any
other guarantor)
by reason of the existence of this Guaranty in the event that the
Borrower
becomes a debtor in any proceeding under the Federal Bankruptcy
Code. This
waiver is given to induce the Bank to enter into certain written
contracts with
the Borrower included in the Indebtedness. The undersigned
warrant(s) and
agree(s) that none of Bank's rights, remedies or interests shall be
directly or
indirectly impaired because of any of the undersigned's status as
an "insider"
or "affiliate" of the Borrower, and undersigned shall take any
action, and shall
execute any document, which the Bank may request in order to
effectuate this
warranty to the Bank.
If any indebtedness is guaranteed by two or more guarantors, the
obligation of
the undersigned shall be several and also joint, each with all and
also each
with any one or more of the others, and may be enforced at the
option of the
Bank against each severally, any two or more jointly, or some
severally and some
jointly. The Bank, in its sole discretion, may release any one or
more of the
guarantors for any consideration which it deems adequate, and may
fall or elect
not to prove a claim against the estate of any bankrupt, insolvent,
incompetent
or deceased guarantor; and after that, without notice to any other
guarantor,
the Bank may extend or renew any or all indebtedness and may permit
the Borrower
to incur additional indebtedness, without affecting in any manner
the
unconditional obligation of the remaining guarantor(s). This action
by the Bank
shall not, however, be deemed to affect any right to contribution
which may
exist among the guarantors.
Any of the undersigned may terminate their obligation under this
Guaranty as to
future indebtedness (except as provided below) by (and only by)
delivering
written notice of termination to an officer of the Bank and
receiving from an
officer of the Bank written acknowledgement of delivery; provided,
the
termination shall not be effective until the opening of business on
the fifth
(5th) day following written acknowledgement of delivery. Any
termination shall
not affect in any way the unconditional obligations of the
remaining
guarantor(s), whether or not the termination is known to the
remaining
guarantor(s). Any termination shall not affect in any way the
unconditional
obligations of the terminating guarantor(s) as to any indebtedness
existing at
the effective date of termination or any indebtedness created after
that
pursuant to any commitment or agreement of the Bank or any Borrower
loan with
the Bank existing at the effective date of termination (whether
advances or
readvances by the Bank are optional or obligatory), or any
modifications,
extensions or renewals of any of this indebtedness, whether in
whole or in part,
and as to all of this indebtedness and modifications, extensions or
renewals of
it, this Guaranty shall continue effective until the same sh
