Exhibit 10.8


 


COMMERCIAL
GUARANTY


 


	
  Principal

  	
  Loan Date

  	
  Maturity 

  	
  Loan No 

  	
  Call / Coll

  1A2 / 101

  	
  Account

  	
  Officer

  Krugeg 

  	
  Initials

  



 


References
in the boxes above are for Lender’s use only and do not limit the applicability
of this document to any particular loan or item. Any item above containing
“***” has been omitted due to text length limitations.


 


	
  Borrower:

  	
   

  	
  TOWER
  TECH SYSTEMS INC

  	
   

  	
  Lender:

  	
  GREAT
  WESTERN BANK

  
	
   

  	
   

  	
  101 S
  16TH ST PO BOX 1957

  	
   

  	
   

  	
  Sioux
  Falls

  
	
   

  	
   

  	
  MANITOWOC,
  Wl 54221-1957

  	
   

  	
   

  	
  200 E
  10th Street 

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  Sioux Falls,
  SD 57104

  
	
  Guaranto:

  	
   

  	
  BROADWIND
  ENERGY, INC 

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  47 E
  CHICAGO AVE STE 332 

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  NAPERVILLE,
  IL 60540

  	
   

  	
   

  	
   

  



 


GUARANTEE OF PAYMENT AND PERFORMANCE. For good and valuable consideration, Guarantor
absolutely and unconditionally guarantees full and punctual payment and
satisfaction of the Indebtedness of Borrower to Lender, and the performance and
discharge of all Borrower’s obligations under the Note and the Related
Documents. This is a guaranty of payment and performance and not of collection,
so Lender can enforce this Guaranty against Guarantor even when Lender has not
exhausted Lender’s remedies against anyone else obligated to pay the
Indebtedness or against any collateral securing the Indebtedness, this Guaranty
or any other guaranty of the Indebtedness. Guarantor will make any payments to
Lender or its order, on demand, in legal tender of the United States of
America, in same-day funds, without set-off or deduction or counterclaim, and
will otherwise perform Borrower’s obligations under the Note and Related
Documents.


 


INDEBTEDNESS. The word “Indebtedness” as used in this Guaranty means all of the
principal amount outstanding from time to time and at any one or more times,
accrued unpaid interest thereon and all collection costs and legal expenses
related thereto permitted by law, attorneys’ fees, arising from any and all
debts, liabilities and obligations that Borrower individually or collectively
or interchangeably with others, owes or will owe Lender under the Note and
Related Documents and any renewals, extensions, modifications, refinancings,
consolidations and substitutions of the Note and Related Documents.


 


If
Lender presently holds one or more guaranties, or hereafter receives additional
guaranties from Guarantor, Lender’s rights under all guaranties shall be
cumulative. This Guaranty shall not (unless specifically provided below to the
contrary) affect or invalidate any such other guaranties. Guarantor’s liability
will be Guarantor’s aggregate liability under the terms of this Guaranty and
any such other unterminated guaranties.


 


CONTINUING GUARANTY. THIS GUARANTY ENCOMPASSES A LINE OF CREDIT AND
GUARANTOR UNDERSTANDS AND AGREES THAT THIS GUARANTY SHALL BE OPEN AND
CONTINUOUS UNTIL THE INDEBTEDNESS IS PAID IN FULL AND THE LENDER DECLARES THAT
THE LINE OF CREDIT IS FULLY SATISFIED, PERFORMED AND TERMINATED.


 


DURATION OF GUARANTY. This Guaranty will take effect when received
by Lender without the necessity of any acceptance by Lender, or any notice to
Guarantor or to Borrower, and will continue in full force until all the
Indebtedness shall have been fully and finally paid and satisfied and all of
Guarantor’s other obligations under this Guaranty shall have been performed in
full. Release of any other guarantor or termination of any other guaranty of
the Indebtedness shall not affect the liability of Guarantor under this
Guaranty. A revocation Lender receives from any one or more Guarantors shall
not affect the liability of any remaining Guarantors under this Guaranty.


 


GUARANTOR’S AUTHORIZATION TO LENDER. Guarantor authorizes Lender, without notice or demand and without lessening
Guarantor’s liability under this Guaranty, from time to time. (A) to
make one or more additional secured or unsecured loans to Borrower, to lease
equipment or other goods to Borrower, or otherwise to extend additional credit
to Borrower; (B) to alter, compromise, renew, extend, accelerate, or
otherwise change one or more times the time for payment or other terms of the
Indebtedness or any part of the Indebtedness, including increases and decreases
of the rate of interest on the Indebtedness; extensions may be repeated and may
be for longer than the original loan term; (C) to take and hold security
for the payment of this Guaranty or the Indebtedness, and exchange, enforce,
waive, subordinate, fail or decide not to perfect, and release any such
security, with or without the substitution of new collateral; (D) to
release, substitute, agree not to sue, or deal with any one or more of Borrower’s
sureties, endorsers, or other guarantors on any terms or in any manner Lender
may choose; (E) to determine how, when and what application of payments
and credits shall be made on the Indebtedness; (F) to apply such security
and direct the order or manner of sale thereof, including without limitation,
any nonjudicial safe permitted by the terms of the controlling security
agreement or deed of trust, as Lender in its discretion may determine; (G) to
sell, transfer, assign or grant participations in all or any part of the
Indebtedness; and (H) to assign or transfer this Guaranty in whole or in
part.


 


GUARANTOR’S REPRESENTATIONS AND WARRANTIES. Guarantor represents and warrants to Lender
that (A) no representations or agreements of any kind have been made to
Guarantor which would limit or qualify in any way the terms of this Guaranty; (B) this
Guaranty is executed at. Borrower’s
request and not at the request of Lender; (C) Guarantor has full power,
right and authority to enter into this Guaranty; (D) the provisions of
this Guaranty do not conflict with or result in a default under any agreement
or other instrument binding upon Guarantor and do not result in a violation of
any law, regulation, court decree or order applicable to Guarantor; (E) Guarantor
has not and will not, without the prior written consent of Lender, sell, lease,
assign, encumber, hypothecate, transfer, or otherwise dispose of all or
substantially all of Guarantor’s assets, or any interest therein; (F) upon
Lender’s request, Guarantor will provide to Lender financial and credit
information in form acceptable to Lender, and all such financial information
which currently has been, and all future financial information which will be
provided to Lender is and will be true and correct in all material respects and
fairly present Guarantor’s financial condition as of the dates the financial
information is provided; (G) no material adverse change has occurred in
Guarantor’s financial condition since the date of the most recent financial
statements provided to Lender and no event has occurred which may materially
adversely affect Guarantor’s financial condition; (H) no litigation,
claim, investigation, administrative proceeding or similar action (including
those for unpaid taxes) against Guarantor is pending or threatened; (I) Lender
has made no representation to Guarantor as to the creditworthiness of Borrower;
and (J) Guarantor has established adequate means of obtaining from
Borrower on a continuing basis information regarding Borrower’s financial
condition. Guarantor agrees to keep adequately informed from such means of any
facts, events, or circumstances which might in any way affect Guarantor’s risks
under this Guaranty, and Guarantor further agrees that, absent a request for
information, Lender shall have no obligation to disclose to Guarantor any
information or documents acquired by Lender in the course of its relationship
with Borrower.


 


GUARANTOR’S FINANCIAL STATEMENTS. Guarantor agrees to furnish Lender with the
following:


 


Annual Statements. As soon as available, but in no event later
than one-hundred-twenty (120) days after the end of each fiscal year, Guarantor’s
balance sheet and income statement for the year ended, compiled by a certified
public accountant satisfactory to Lender.


 


Interim Statements. As soon as available, but in no event later
than 45 days after the end of each fiscal quarter, Guarantor’s balance sheet
and profit and loss statement for the period ended, prepared by Guarantor.


 


Tax Returns. As soon as available, but in no event later
than thirty (30) days after the applicable filing date for the tax reporting
period ended, Federal and other governmental tax returns, prepared by a
certified public accountant satisfactory to Lender.


 


All
financial reports required to be provided under this Guaranty shall be prepared
in accordance with GAAP, applied on a consistent basis, and certified by
Guarantor as being true and correct.


 


GUARANTOR’S WAIVERS. Except as prohibited by applicable law,
Guarantor waives any right to require Lender (A) to continue lending money
or to extend other credit to Borrower; (B) to make any presentment, protest,
demand, or notice of any kind, including notice of any nonpayment of the Indebtedness
or of any nonpayment related to any collateral, or notice of any action or
nonaction on the part of Borrower, Lender, any surety, endorser, or other
guarantor in connection with the Indebtedness or in connection with the
creation of new or additional loans or obligations; (C) to resort for payment
or to proceed directly or at once against any person, including Borrower or any
other guarantor; (D) to proceed directly against or exhaust any collateral held
by Lender from Borrower, any other guarantor, or any other person; (E) to
give notice of the terms, time, and place of any public or private sale of personal
property security held by Lender from Borrower or to comply with any other
applicable provisions of the Uniform Commercial Code; (F) to pursue any other
remedy within Lender’s power; or (G) to commit any act or omission of any kind,
or at any time, with respect to any matter whatsoever.


 


Guarantor
also waives any and all rights or defenses based on suretyship or impairment of
collateral including, but not limited to, any rights or defenses arising by
reason of (A) any “one action” or “anti-deficiency” law or any other law which
may prevent Lender from bringing any action, including a claim for deficiency,
against Guarantor, before or after Lender’s commencement or completion of any
foreclosure action, either judicially or by exercise of a power of sale; (B) any
election of remedies by Lender which destroys or otherwise adversely affects
Guarantor’s subrogation rights or Guarantor’s rights to proceed against
Borrower for reimbursement, including without limitation, any loss of rights
Guarantor may suffer by reason of any law limiting, qualifying, or discharging
the Indebtedness; (C) any disability or other defense of Borrower, of any other
guarantor, or of any other person, or by reason of the cessation of Borrower’s
liability from any cause whatsoever, other than payment in full in legal
tender, of the Indebtedness; (D) any right to claim discharge of the
Indebtedness on the basis of unjustified impairment of any collateral for the
Indebtedness; (E) any statute of limitations, if at any time any action or
suit brought by Lender against Guarantor is commenced, there is outstanding
Indebtedness which is not barred by any applicable statute of limitations; or (F)
any defenses given to guarantors at law or in equity other than actual payment
and performance of the Indebtedness. If payment is made by Borrower, whether
voluntarily or otherwise, or by any third party, on the Indebtedness and
thereafter Lender is forced to remit the amount of that payment to Borrower’s
trustee in bankruptcy or to any similar person under any federal or state
bankruptcy law or law for the relief of debtors, the Indebtedness shall be
considered unpaid for the purpose of the enforcement of this Guaranty.


 

















 


COMMERCIAL GUARANTY 


(Continued)


 


Guarantor
further waives and agrees not to assert or claim at any time any deductions to
the amount guaranteed under this Guaranty for any claim of setoff,
counterclaim, counter demand, recoupment or similar right, whether such claim,
demand or right may be asserted by the Borrower, the Guarantor, or both.


 


GUARANTOR’S UNDERSTANDING WITH RESPECT TO WAIVERS. Guarantor warrants and agrees that each of the
waivers set forth above is made with Guarantor’s full knowledge of its
significance and consequences and that, under the circumstances, the waivers are
reasonable and not contrary to public policy or law. If any such waiver is
determined to be contrary to any applicable law or public policy, such waiver
shall be effective only to the extent permitted by law or public policy.


 


RIGHT OF SETOFF. To the extent permitted by applicable law, Lender reserves a right of
setoff in all Guarantor’s accounts with Lender (whether checking, savings, or
some other account). This includes all accounts Guarantor holds jointly with
someone else and all accounts Guarantor may open in the future. However, this
does not include any IRA or Keogh accounts, or any trust accounts for which
setoff would be prohibited by law. Guarantor authorizes Lender, to the extent
permitted by applicable law, to hold these funds if there is a default, and
Lender may apply the funds in these accounts to pay what Guarantor owes under
the terms of this Guaranty.


 


SUBORDINATION OF BORROWER’S DEBTS TO GUARANTOR. Guarantor agrees that the Indebtedness,
whether now existing or hereafter created, shall be superior to any claim that
Guarantor may now have or hereafter acquire against Borrower, whether or not
Borrower becomes insolvent. Guarantor hereby expressly subordinates any claim
Guarantor may have against Borrower, upon any account whatsoever, to any claim
that Lender may now or hereafter have against Borrower. In the event of
insolvency and consequent liquidation of the assets of Borrower, through
bankruptcy, by an assignment for the benefit of creditors, by voluntary
liquidation, or otherwise, the assets of Borrower applicable to the payment of
the claims of both Lender and Guarantor shall be paid to Lender and shall be
first applied by Lender to the Indebtedness. Guarantor does hereby assign to
Lender all claims which it may have or acquire against Borrower or against any
assignee or trustee in bankruptcy of Borrower; provided however, that such
assignment shall be effective only for the purpose of assuring to Lender full
payment in legal tender of the Indebtedness. If Lender so requests, any notes
or credit agreements now or hereafter evidencing any debts or obligations of
Borrower to Guarantor shall be marked with a legend that the same are subject
to this Guaranty and shall be delivered to Lender. Guarantor agrees, and Lender
is hereby authorized, in the name of Guarantor, from time to time to file
financing statements and continuation statements and to execute documents and
to take such other actions as Lender deems necessary or appropriate to perfect,
preserve and enforce its rights under this Guaranty.


 


MISCELLANEOUS PROVISIONS. The following miscellaneous provisions are a
part of this Guaranty.


 


Amendments. This Guaranty, together with any Related
Documents, constitutes the entire understanding and agreement of the parties as
to the matters set forth in this Guaranty. No alteration of or amendment to
this Guaranty shall be effective unless given in writing and signed by the
party or parties sought to be charged or bound by the alteration or amendment.


 


Attorneys’ Fees; Expenses. Guarantor agrees to pay upon demand all of
Lender’s costs and expenses, including Lender’s attorneys’ fees and Lender’s
legal expenses, incurred in connection with the enforcement of this Guaranty.
Lender may hire or pay someone else to help enforce this Guaranty, and Guarantor
shall pay the costs and expenses of such enforcement. Costs and expenses
include Lender’s attorneys’ fees and legal expenses whether or not there is a
lawsuit, including attorneys’ fees and legal expenses for bankruptcy
proceedings (including efforts to modify or vacate any automatic stay or
injunction), appeals, and any anticipated post-judgment collection services.
Guarantor also shall pay all court costs and such additional fees as may be
directed by the court.


 


Caption Headings. Caption headings in this Guaranty are for
convenience purposes only and are not to be used to interpret or define the
provisions of this Guaranty.


 


Governing Law. This Guaranty will be
governed by federal law applicable to Lender and, to the extent not preempted
by federal law, the laws of the State of South Dakota without regard to its
conflicts of law provisions.


 


Choice of Venue. If there is a lawsuit, Guarantor agrees upon
Lender’s request to submit to the jurisdiction of the courts of Minnehaha
County, State of South Dakota.


 


Integration. Guarantor further agrees that Guarantor has
read and fully understands the terms of this Guaranty. Guarantor has had the
opportunity to be advised by Guarantor’s attorney with respect to this Guaranty;
the Guaranty fully reflects Guarantor’s intentions and parol evidence is not
required to interpret the terms of this Guaranty. Guarantor hereby indemnifies
and holds Lender harmless from all losses, claims, damages, and costs
(including Lender’s attorneys’ fees) suffered or incurred by Lender as a result
of any breach by Guarantor of the warranties, representations and agreements of
this paragraph.


 


Interpretation. In all cases where there is more than one
Borrower or Guarantor, then all words used in this Guaranty in the singular
shall be deemed to have been used in the plural where the context and
construction so require; and where there is more than one Borrower named in
this Guaranty or when this Guaranty is executed by more than one Guarantor, the
words “Borrower” and “Guarantor” respectively shall mean all and any one or
more of them. The words “Guarantor,” “Borrower,” and “Lender” include the
heirs, successors, assigns, and transferees of each of them. If a court finds
that any provision of this Guaranty is not valid or should not be enforced,
that fact by itself will not mean that the rest of this Guaranty will not be
valid or enforced. Therefore, a court will enforce the rest of the provisions
of this Guaranty even if a provision of this Guaranty may be found to be
invalid or unenforceable. If any one or more of Borrower or Guarantor are
corporations, partnerships, limited liability companies, or similar entities,
it is not necessary for Lender to inquire into the powers of Borrower or
Guarantor or of the officers, directors, partners, managers, or other agents
acting or purporting to act on their behalf, and any indebtedness made or
created in reliance upon the professed exercise of such powers shall be
guaranteed under this Guaranty.


 


Notices. Any notice required to be given under this
Guaranty shall be given in writing, and shall be effective when actually
delivered, when actually received by telefacsimile (unless otherwise required
by law), when deposited with a nationally recognized overnight courier, or, if
mailed, when deposited in the United States mail, as first class, certified or
registered mail postage prepaid, directed to the addresses shown near the beginning
of this Guaranty. Any party may change its address for notices under this
Guaranty by giving formal written notice to the other parties, specifying that
the purpose of the notice is to change the party’s address. For notice
purposes, Guarantor agrees to keep Lender informed at all times of Guarantor’s
current address. Unless otherwise provided or required by law, if there is more
than one Guarantor, any notice given by Lender to any Guarantor is deemed to be
notice given to all Guarantors.


 


No Waiver by Lender. Lender shall not be deemed to have waived any
rights under this Guaranty unless such waiver is given in writing and signed by
Lender. No delay or omission on the part of Lender in exercising any right
shall operate as a waiver of such right or any other right. A waiver by Lender
of a provision of this Guaranty shall not prejudice or constitute a waiver of
Lender’s right otherwise to demand strict compliance with that provision or any
other provision of this Guaranty. No prior waiver by Lender, nor any course of
dealing between Lender and Guarantor, shall constitute a waiver of any of
Lender’s rights or of any of Guarantor’s obligations as to any future
transactions. Whenever the consent of Lender is required under this Guaranty,
the granting of such consent by Lender in any instance shall not constitute
continuing consent to subsequent instances where such consent is required and
in all cases such consent may be granted or withheld in the sole discretion of
Lender.


 


Successors and Assigns. Subject to any limitations stated in this
Guaranty on transfer of Guarantor’s interest, this Guaranty shall be binding upon
and inure to the benefit of the parties, their successors and assigns.


 


DEFINITIONS.
The following
capitalized words and terms shall have the following meanings when used in this
Guaranty. Unless specifically stated to the contrary, all references to dollar
amounts shall mean amounts in lawful money of the United States of America.
Words and terms used in the singular shall include the plural, and the plural
shall include the singular, as the context may require. Words and terms not
otherwise defined in this Guaranty shall have the meanings attributed to such
terms in the Uniform Commercial Code.


 


Borrower. The word “Borrower” means TOWER TECH SYSTEMS INC and includes all
co-signers and co-makers signing the Note and all their successors and assigns.


 


GAAP. The word “GAAP” means generally accepted accounting principles.


 


Guarantor. The word “Guarantor” means everyone signing
this Guaranty, including without limitation BROADWIND ENERGY, INC, and in each. case, any signer’s successors and
assigns.


 


Guaranty. The word “Guaranty” means this guaranty from Guarantor to Lender.


 


Indebtedness. The word “Indebtedness” means Borrower’s indebtedness to Lender as more
particularly described in this Guaranty.


 


Lender. The word “Lender” means GREAT WESTERN BANK, its successors and assigns.


 


Note. The word “Note” means the promissory note
dated April 27, 2009, in the original
principal amount of $10,000,000.00 from Borrower to Lender, together
with all renewals of, extensions of, modifications of, refinancings of,
consolidations of, and substitutions for the promissory note or agreement.


 


Related Documents. The words “Related Documents” mean all
promissory notes, credit agreements, loan agreements, environmental agreements,
guaranties, security agreements, mortgages, deeds of trust, security deeds,
collateral mortgages, and all other instruments, agreements and documents,
whether now or hereafter existing, executed in connection with the
Indebtedness.


 


2

















 


COMMERCIAL GUARANTY 


(Continued)


 


EACH UNDERSIGNED GUARANTOR
ACKNOWLEDGES HAVING READ ALL THE PROVISIONS OF THIS GUARANTY AND AGREES TO ITS
TERMS. IN ADDITION, EACH GUARANTOR UNDERSTANDS THAT THIS GUARANTY IS EFFECTIVE
UPON GUARANTOR’S EXECUTION AND DELIVERY OF THIS GUARANTY TO LENDER AND THAT THE
GUARANTY WILL CONTINUE UNTIL TERMINATED IN THE MANNER SET FORTH IN THE SECTION TITLED
“DURATION OF GUARANTY”. NO FORMAL ACCEPTANCE BY LENDER IS NECESSARY TO MAKE
THIS GUARANTY EFFECTIVE. THIS GUARANTY IS DATED APRIL 27, 2009.


 


	
  GUARANTOR:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  BROADWIND ENERGY, INC

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ J. Cameron Drecoll

  	
   

  	
   

  
	
  J. CARMERON DRECOLL, CEO of BROADWIND

  	
   

  	
   

  
	
  ENERGY, INC

  	
   

  	
   

  
				



 


CORPORATE ACKNOWLEDGMENT


 


	
  STATE OF IL

  	
  )

  
	
   

  	
  )SS

  
	
  COUNTY OF COOK

  	
  )

  



 


On this 27 day of April, 2009, before me, the
undersigned Notary Public, personally appeared J. CAMERON DRECOLL, CEO of BROADWIND ENERGY, INC, and known to
me to be an authorized agent of the corporation that executed the Commercial
Guaranty and acknowledged the Guaranty to be the free and voluntary act and
deed of the corporation, by authority of its Bylaws or by resolution of its
board of directors, for the uses and purposes therein mentioned, and on oath
stated that he or she is authorized to execute this Guaranty and in fact
executed the Guaranty on behalf of the corporation.


 


	
  By

  	
  /s/ Beatriz
  Sanchez

  	
   

  	
  Residing at IL

  
	
   

  	
   

  	
   

  
	
  Notary Public in and for the State of IL

  	
   

  	
  My commission expires 07/02/12

  



 


LASER PRO Lending,
Ver. 5.43.00.003 Copr. Harland Financial Solutions, Inc. 1997, 2009. All Rights
Reserved. - SD o:\officers\apps\CFI\LPL\E20.FC TR-14464 PR-34 


 


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