GUARANTY
Exhibit
10.93
This
Guaranty (this “Guaranty”),
dated and effective as of December 23, 2008, is made by and among HOKU
SOLAR POWER I, LLC, a California limited liability company (the “Company”),
UFA RENEWABLE ENERGY FUND I, LLC, a Delaware limited liability company (the
“Investor
Member”) and Firstar Development LLC, a Delaware limited liability
company (“FIRSTAR”);
HOKU SCIENTIFIC, INC., a Delaware corporation (“Hoku
Scientific”) and Hoku Solar, Inc., a Delaware corporation (collectively,
the “Guarantor”).
A. Recitals
WHEREAS,
Hoku Solar, Inc. is the managing member of the Company (and in such capacity it
is the “Managing
Member”).
WHEREAS,
the Investor Member and the Managing Member are the only members of the
Company.
WHEREAS,
the Company is operating pursuant to that certain Operating Agreement dated as
of the date hereof (the “Operating
Agreement”). Capitalized terms used herein and not otherwise
defined shall have the meanings set forth in the Operating Agreement, as such
agreement may be amended from time to time.
WHEREAS,
the Company was formed for the purpose of acquiring, owning, managing,
operating, and, if appropriate or desirable, selling or otherwise disposing of
solar energy property, in particular the Project and to engage in the business
of acting as the owner of such solar energy property.
WHEREAS,
the Managing Member, under the Operating Agreement, represents, warrants and
covenants, that it will use diligent efforts to construct and/or install the
Project and thereafter operate it as required by the Code in order to qualify
for and maintain the Tax Credits and other tax benefits anticipated in
connection therewith.
WHEREAS,
Hoku Scientific is the parent and sole shareholder of the Managing Member will
benefit from the completion and operation of the Project.
Now,
therefore, for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the Guarantor hereby agrees for the benefit of
the Investor Member and Firstar as follows:
1. Covenants,
Representations and Warranties.
Each
Guarantor represents and warrants to the Investor Member as
follows:
(a) the
execution, delivery and performance by it of this Guaranty does not and will not
contravene or conflict with any law, order, rule, regulation, writ, injunction
or decree now in effect of any government, governmental instrumentality or court
or tribunal having jurisdiction over it, or any contractual restriction binding
on or affecting it;
(b) the
execution, delivery and performance by it of this Guaranty does not and will not
conflict with or result in a breach of the terms or provisions of any indenture,
agreement or instrument to which it is a party, or by which it is bound, or to
which it is subject, or constitute a default thereunder;
(c) with
the assistance of counsel of its choice, it has read and reviewed this Guaranty
and such other documents as it and its counsel deemed necessary or desirable to
read;
(d) it
is a corporation, validly incorporated and existing and in good standing under
the laws of the jurisdiction of its incorporation and all other jurisdictions
where its failure to be so qualified would have a material adverse effect on its
financial condition or results of operations and has the full power and
authority to enter into and perform its obligations under this Guaranty;
and
(e) it
has duly authorized, executed and delivered this Guaranty, and this Guaranty is
fully enforceable against it in accordance with its terms, subject to applicable
bankruptcy, insolvency and other laws affecting creditors' rights and remedies
generally and subject, as to enforceability, to general principles of equity,
including principles of commercial reasonableness, good faith and fair dealing
(regardless of whether a proceeding is sought in equity or at law);
and
2. Guaranty. Guarantor
shall absolutely and unconditionally guarantee due payment, performance and
fulfillment of the Managing Member’s obligations under the following sections of
the Operating Agreement, Section 5.01(e)(iv) (obligations related to any
Recapture Event), Section 5.05 (repurchase obligations), Sections 8.09 (a) and
(b) (obligations to fund Excess Development Costs and Operating Deficits) and
Section 9.05 (the Managing Member’s obligation to purchase the Investor Member’s
Interest under the Put Option).
3. Attorneys’
Fees and Expenses. The Guarantor shall reimburse the Investor
Member for all reasonable attorneys’ fees and expenses which the Investor Member
pays or incurs in connection with enforcing this Guaranty, including, without
limitation, all costs, attorneys’ fees and expenses incurred by the Investor
Member in connection with any insolvency, bankruptcy, reorganization,
arrangement or other similar proceedings involving the Guarantor which affect
the exercise by the Investor Member of its rights and remedies
hereunder. Any and all such costs, attorneys’ fees and expenses not
so paid shall bear interest at an annual interest rate equal to the lesser of
(i) 18%, or (ii) the highest rate permitted by applicable law, from
the date incurred by the Investor Member until paid by the
Guarantor.
4. Direct
and Primary Obligations. The Guarantor agrees that if the
obligation guaranteed by this Guaranty is not fully and timely paid or performed
according to the tenor thereof, whether by acceleration or otherwise, Guarantor
shall immediately upon receipt of written demand therefor from the Investor pay
all amounts due hereby guaranteed in like manner as if the obligation
constituted the direct and primary obligation of the Guarantor. The
Guarantor shall not have any right of subrogation as a result of any payment
hereunder or any other payment made by the Guarantor on account of the amounts
due hereunder, and the Guarantor hereby waives, releases and relinquishes any
claim based on any right of subrogation, any claim for unjust enrichment or any
other theory that would entitle the Guarantor to a claim against the Company
based on any payment made hereunder or otherwise on account of the amounts due
hereunder.
5. Continuing
and Irrevocable Obligations. This Guaranty and the obligations
of the Guarantor hereunder shall be continuing and irrevocable until all amounts
have been satisfied in full. Notwithstanding the foregoing or
anything else set forth herein, and in addition thereto, if at any time all or
any part of any payment received by the Investor Member from the Guarantor under
or with respect to this Guaranty is or must be rescinded or returned for any
reason whatsoever (including, but not limited to, determination that said
payment was a voidable preference or fraudulent transfer under insolvency,
bankruptcy or reorganization laws), then the Guarantor’s obligations hereunder
shall, to the extent of the payment rescinded or returned, be deemed to have
continued in existence, notwithstanding such previous receipt of payment by the
Investor Member, and the Guarantor’s obligations hereunder shall continue to be
effective or be reinstated as to such payment, all as though such previous
payment to the Investor Member had never been made. The provisions of
the foregoing sentence shall survive termination of this Guaranty, and shall
remain a valid and binding obligation of the Guarantor until
satisfied.
6. No
Discharge. The Guarantor acknowledges that the Investor Member
is a member of the Company. Guarantor agrees that the exercise by the
Investor Member, of any of its rights or remedies under the Operating Agreement
for Managing Member's failure to fulfill its obligations under the Operating
Agreement shall not serve to reduce or discharge the liability of the Guarantor
hereunder, except to the extent of any recovery actually realized by the
Investor Member in cash; provided,
however
that the Investor Member shall have no obligation to exercise any of its rights
or remedies under the Operating Agreement. The Guarantor waives and
releases any claim it may now or hereafter have against the Investor Member
based on any theory or cause of action that conflicts with the agreements of the
parties set forth in this Section 6.
7. Other
Indebtedness Subordinated. Any payments owing under the
Operating Agreement to the Managing Member and/or the Guarantor shall be
subordinate to the obligations of the Guarantor to the Investor Member under
this Guaranty.
8. Waiver
and Estoppel. Guarantor hereby grants to the Investor Member,
in its absolute discretion and without notice to the Guarantor, the power and
authority to deal in any lawful manner with the obligation guaranteed
hereby. Without limiting the generality of the foregoing, the
Guarantor knowingly waives and agrees that it will be estopped from asserting
any argument to the contrary as follows: (a) any and all notice
of acceptance of this Guaranty or of the creation, renewal or accrual of any of
the obligations or liabilities hereunder indemnified against, either now or in
the future; (b) protest, presentment, demand for payment, notice of default
or nonpayment, notice of protest or default; (c) any and all notices or
formalities to which it may otherwise be entitled, including, without
limitation, notice of the granting of any indulgences or extensions of time of
payment of any of the liabilities and obligations hereunder and hereby
indemnified against; (d) any promptness in making any claim or demand
hereunder; (e) the defense of the statute of limitations in any action hereunder
or in any action for the collection of amounts payable
hereunder; (f) any defense that may arise by reason of the incapacity,
lack of authority, death or disability of any other person or persons or the
failure to file or enforce a claim against the estate (in administration,
bankruptcy or any other proceeding) of any other person or persons; (g) any
defense based upon an election of remedies which destroys or otherwise impairs
any or all of the subrogation rights of the Investor or the right of the
Investor Member to proceed against any other person for reimbursement, or both;
(h) any duty or obligation of the Investor Member to perfect, protect,
retain or enforce any security for the payment of amounts payable by the
Guarantor hereunder or to proceed against any one or more persons as a condition
to proceeding against the Guarantor; and (i) to the extent it may be waived, any
principle or provision of law, statutory or otherwise, which is or might be in
conflict with the terms and provisions of this Guaranty. No delay or
failure on the part of the Investor Member in the exercise of any right or
remedy against any other party against whom the Investor Member may have any
rights shall operate as a waiver of any agreement or obligation contained
herein, and no single or partial exercise by the Investor Member of any rights
or remedies hereunder shall preclude other or further exercise thereof or other
exercise of any other right or remedy. No provision of this Guaranty
or right of the Investor Member hereunder can be waived, nor can the Guarantor
be released from its obligations hereunder, except by a writing duly executed by
the Investor Member. This Guaranty may not be modified, amended,
revised, revoked, terminated, changed or varied in any way whatsoever, except by
the express terms of a writing duly executed by the Investor
Member.
9. Notices. All
notices, demands, requests or other communications to be sent by one party to
the other hereunder or required by law shall be in writing, shall be sent by
certified mail, postage prepaid, return receipt requested, or by overnight
courier, or by hand delivery, and shall be effective as of the date on which it
is received or would have been received but for the refusal of the addressee to
accept delivery, and shall be addressed as follows:
To the
Investor Member:
Director
of Asset Management-Solar
U.S.
Bancorp Community Development Corporation
0000
Xxxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxx
Xxxxx, XX 00000
(000)
000-0000 (Main)
(000)
000-0000 (Fax)
And a
copy to:
Xxxxxxx
X. Xxxxxxx
Xxxxx
Xxxxxxx LLP
000 Xxxxx
Xxxxxx, XX, Xxxxx 000
Xxxxxxxxxx,
XX 00000
(000)
000-0000 (Main)
(000)
000-0000 (Fax)
To
Guarantor:
Hoku
Scientific, Inc.
0000 Xxx
Xxxxx Xxxx., Xxxxx 000
Xxxxxxxx,
XX 00000
Attention: Xxxxxx
Xxxxxx
Telephone: (000)
000-0000
Facsimile: (000)
000-0000
With
copies to:
Stoel
Rives LLP
000 XX
Xxxxx, Xxxxx 0000
Xxxxxxxx,
Xxxxxx 00000
Attention: Xxxxxxx
X. Boylston
Telephone: (000)
000-0000
Facsimile: (000)
000-0000
By giving
to the other party hereto at least fifteen (15) business days’ written notice
thereof in accordance with the provisions hereof, the parties hereto shall have
the right from time to time to change their respective addresses and each shall
have the right to specify as its address any other address within the United
States of America.
10. Assignment. If
the Interest of the Investor Member is transferred and the person to whom the
Interest is transferred is admitted as a member to the Company, all in
accordance with the Operating Agreement, this Guaranty shall
automatically be assigned therewith , to such person without the need of any
express assignment, and, when so assigned, the Guarantor shall be bound as set
forth herein to the assignee(s) without in any manner affecting the Guarantor’s
liability.
11. Governing
Law. This Guaranty shall be governed by and construed in
accordance with the laws of the State of California (the “State”)
without regard to principles of conflicts of law, except to the extent that any
of such laws may now or hereafter be preempted by Federal law, in which case,
such Federal law shall so govern and be controlling. In any action
brought under or arising out of this Guaranty, the Guarantor hereby consents to
the jurisdiction of any competent court within the State and consents to service
of process by any means authorized by the laws of the State. Except
as provided in any other written agreement now or at any time hereafter in force
between the Investor Member and the Guarantor, this Guaranty shall constitute
the entire agreement of Guarantor with the Investor Member with respect to the
subject matter hereof, and no representation, understanding, promise or
condition concerning the subject matter hereof shall be binding upon the
Investor Member and the Guarantor unless expressed herein.
12. Duration. The
Guarantor hereby agrees that this Guaranty, shall remain in full force and
effect at all times hereinafter until paid and/or performed in full subject to
the limitations and expiration periods set forth herein, notwithstanding any
action or undertakings by or against the Investor Member and the Guarantor in
any proceeding in the United States Bankruptcy Court, including, without
limitation, any proceeding relating to valuation of collateral, election or
imposition of secured or unsecured claim status upon claims by the Investor
Member pursuant to any Chapter of the Bankruptcy Code or the Rules of Bankruptcy
Procedure, as same may be applicable from time to time. The Guarantor
acknowledges that it may not be possible to determine the existence of liability
hereunder until after such time as the IRS is prohibited from assessing
additional tax liability against the Investor Member for any year in which it
claimed Tax Credits, which may be at a point in time subsequent to when the
Investor Member has disposed of its Company Interest, provided, however, the
Guarantors shall not be liable for any tax assessed against the Investor Member
from and after the date which is five (5) years after the end of the Compliance
Period.
13. Miscellaneous.
(a) Should
any one or more provisions of this Guaranty be determined to be illegal or
unenforceable, all other provisions shall nevertheless be
effective.
(b) When
the context and construction so require, all words used in the singular herein
shall be deemed to have been used in the plural, and the masculine shall include
the feminine and neuter and vice versa. The word “person,” as used
herein, shall include any individual, company, firm, association, limited
liability company, corporation, trust or other legal entity of any kind
whatsoever.
(c) All
headings in this Guaranty are for convenience of reference only and are not
intended to qualify the meaning of any provision of this Guaranty.
(d) The
obligations of the Guarantor contained herein are undertaken solely and
exclusively for the benefit of the Investor Member and its permitted successors
and assigns, and no other person or entities shall have any standing to enforce
such obligations or be deemed to be beneficiaries of such
obligations.
(e) This
Guaranty may be executed in any number of counterparts, each of which shall be
effective only upon delivery and thereafter shall be deemed to be an original,
and all of which, when taken together, shall be one and the same instrument,
with the same effect as if all parties hereto had signed the same signature
page. Any signature page of this Guaranty may be detached from any
counterpart of this Guaranty without impairing the legal effect of any
signatures thereon and may be attached to another counterpart of this Guaranty
identical in form hereto but having attached to it one or more additional
signature pages.
(f) Capitalized
terms used in this Guaranty and not specifically defined herein shall have the
meanings assigned to them in the Operating Agreement dated of even date
herewith.
[
signatures begin on the following page ]
IN
WITNESS WHEREOF, the undersigned have executed this Guaranty as of the date
first above written.
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Company:
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HOKU
SOLAR POWER I, LLC,
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a
California limited liability company
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By:
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Hoku
Solar, Inc., a Delaware corporation,
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its
Managing Member
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By:
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/s/
Xxxxx Xxxx
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Name:
Xxxxx Xxxx
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Title:
Chief Operating Officer
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Investor Member:
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UFA
RENEWABLE ENERGY FUND I, LLC, a Delaware
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limited
liability company
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By:
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United
Fund Advisors, LLC,
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its
Managing Member
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By:
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/s/
Xxxxx Xxxxx
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Name:
Xxxxx Xxxxx
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Title:
Senior Vice President
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FIRSTAR
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FIRSTAR
DEVELOPMENT LLC, a Delaware limited liability company
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By:
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/s/
Xxxxxx Xxxxxxxxx
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Xxxxxx
Xxxxxxxxx
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Senior
Vice
President
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Hoku
Solar
Signature
Page to Guaranty
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HOKU
SCIENTIFIC, INC., a
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Delaware
corporation
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By:
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/s/
Xxxxx Xxxx
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Name:
Xxxxx Xxxx
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Title:
Chief Operating Officer
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HOKU
SOLAR, INC.
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By:
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/s/
Xxxxx Xxxx
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Name:
Xxxxx Xxxx
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Title:
Chief Operating
Officer
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Hoku
Solar
Signature
Page to Guaranty
