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Snell & Wilmer

 L.L.P.

LAW OFFICES 

One Arizona Center, 400 E. Van Buren 

Phoenix, Arizona 85004-2202 

(602) 382-6000 

 

Christopher H. Bayley (#010764) 

Emily Gildar Wagner (#028811)

SNELL & WILMER L.L.P.

One Arizona Center 

400 E. Van Buren 

Phoenix, AZ 85004-2202 

Telephone: (602) 382-6734 

Facsimile: (602) 382-6070 

cbayley@swlaw.com

ewagner@swlaw.com Attorneys for Plaintiff 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

TONN INVESTMENTS, LLC, an 

Arizona limited liability company, 

Plaintiff, 

v. 

ECO CLEAN SOLAR, INC., a 

Delaware corporation, f/k/a SunWize 

Technologies, Inc., 

Defendant. 

Case No. 

VERIFIED COMPLAINT FOR: 

(I) APPOINTMENT OF A RECEIVER; 

AND 

(II) BREACH OF CONTRACT 

(EMERGENCY RELIEF SOUGHT) 

Tonn Investments, LLC, an Arizona limited liability company (“Plaintiff” or 

“Lender”), for its complaint against Eco Clean Solar, Inc., a Delaware corporation, f/k/a 

SunWize Technologies, Inc. (“Defendant” or “Borrower”), hereby alleges, states, and avers 

as follows: 

PARTIES, JURISDICTION, AND VENUE 

1. Plaintiff is an Arizona limited liability company authorized to do and doing 

business in Arizona. 

2. Upon information and belief, Defendant is a Delaware corporation doing 

business in Arizona. 

Case 2:15-cv-02048-DLR Document 1 Filed 10/12/15 Page 1 of 7
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Snell & Wilmer

 L.L.P.

LAW OFFICES 

One Arizona Center, 400 E. Van Buren 

Phoenix, Arizona 85004-2202 

(602) 382-6000 

 

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3. This Court has subject matter jurisdiction under 28 U.S.C. § 1332(a) 

because the amount in controversy exceeds $75,000.00, exclusive of interest and costs, 

and Plaintiff and Defendant are citizens of different States. 

4. This Court has personal jurisdiction over Defendant because Defendant 

does business in Arizona, and at least some of the actions giving rise to this lawsuit 

occurred in Arizona. 

5. Venue is proper under 28 U.S.C. § 1391(b) and (c) because at least some of 

the events giving rise to the claims alleged herein occurred in this District and Defendant 

is subject to personal jurisdiction in this District. 

THE LOAN TRANSACTION 

6. On or about September 17, 2014, Lender entered into a “Modified Loan 

Agreement” (the “Loan Agreement”) with Borrower, which at the time, was known as 

SunWize Technologies, Inc., in the principal amount of $1,125,000.00 (the “Loan”). A 

true and correct copy of the Loan Agreement is attached hereto as Exhibit A, and 

incorporated herein by this reference. 

7. The Loan is evidenced by that certain “Modified – Secured Promissory 

Note (Revolving Line of Credit)” (the “Note”) dated September 17, 2014, in the principal 

amount of $1,125,000.00 that was executed and delivered by Borrower, which at the time, 

was known as SunWize Technologies, Inc., to Lender. A true and correct copy of the 

Note is attached hereto as Exhibit B, and incorporated herein by this reference. 

8. The Loan is secured by that certain “Modified Security Agreement” (the 

“Security Agreement”) dated September 17, 2014, and executed by Borrower, which at 

the time, was known as SunWize Technologies, Inc., in favor of Lender, as amended by 

that certain “Amendment to Modified Security Agreement” (the “Amended Security 

Agreement”) dated September 25, 2015, and executed by Borrower in favor of Lender. 

True and correct copies of the Security Agreement and Amended Security Agreement are 

attached hereto as Exhibits C and D, respectively, and incorporated herein by this 

reference. 

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Snell & Wilmer

 L.L.P.

LAW OFFICES 

One Arizona Center, 400 E. Van Buren 

Phoenix, Arizona 85004-2202 

(602) 382-6000 

 

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9. The Amended Security Agreement, among other things, granted a security 

interest in all of Borrower’s assets, including, but not limited to, all of the property of 

Borrower (the “Collateral”). 

10. The security interest in the Collateral was perfected by, among other things, 

filing UCC Financing Statements with the Delaware Department of State, including, but 

not limited to: (i) the UCC Financing Statement Amendment changing the name of the 

debtor from SunWize Technologies, Inc. to Eco Clean Solar, Inc. on October 6, 2015, 

Instrument No. 20154534334, and (ii) the UCC Financing Statement Amendment 

restating the collateral to include “[a]ll assets of the debtor now owned or hereafter 

acquired and all proceeds thereof” on October 6, 2015, Instrument No. 20154535075 

(collectively, the “UCCs”). True and correct copies of the UCCs are attached hereto as 

Exhibit E, and incorporated herein by this reference. 

11. The Amended Security Agreement expressly provides that upon default, 

Lender shall have “the right to apply for the appointment of a receiver, trustee, or 

liquidator or conservator of the Collateral, without notice and without regard to the 

adequacy of the security for the Obligations and without regard to the solvency of 

[Borrower], any guarantor or any other Person liable for any of the Obligations.” 

12. Defendant does not oppose the appointment of a receiver over itself and the 

Collateral, and stipulates to the entry of an order appointing a receiver. 

13. Collectively, the Loan Agreement, Note, Security Agreement, Amended 

Security Agreement, and UCCs are referred to herein as the “Loan Documents.” 

14. The Loan Documents explicitly provide for recovery of Plaintiff’s 

attorneys’ fees and costs incurred in enforcing the Loan Documents and/or exercising its 

rights or remedies thereunder. 

THE DEFAULTS 

15. The Loan matured and was due and owing in full on January 31, 2015. 

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Snell & Wilmer

 L.L.P.

LAW OFFICES 

One Arizona Center, 400 E. Van Buren 

Phoenix, Arizona 85004-2202 

(602) 382-6000 

 

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16. By letter dated September 15, 2015, Plaintiff notified Defendant that the 

Loan had matured, and demanded payment in full. A true and correct copy of the demand 

letter is attached as Exhibit F, and incorporated herein by this reference. 

17. To date, Defendant has not repaid the Loan in full. 

18. As of September 15, 2015, Defendant owed Plaintiff $1,125,000.00 in 

principal, plus $69,516.67 in past due interest, and $59,725.83 in late charges. 

COUNT I

(Appointment of a Receiver) 

19. Plaintiff realleges and reincorporates by reference all preceding allegations 

contained in this complaint. 

20. Defendant is in the business of constructing solar systems for private and 

public customers, including, but not limited to, the U.S. Veterans Administration (the 

“USVA”), the U.S. Department of Defense (the “USDD”), and the American Samoa 

Power Authority (the “ASPA”). 

21. Presently, Defendant is under contract to, among other things, construct 

solar systems for the USVA in: (i) Honolulu, Hawaii, (ii) Little Rock, Arkansas, (iii) 

Kerrville, Texas, (iv) San Antonio, Texas, and (v) Phoenix, Arizona. Defendant is also 

under contract to, among other things, construct solar systems for the USDD at the 

Vandenberg Air Force Base and for the ASPA in American Samoa. 

22. Defendant is currently unable to continue operations because, among other 

things, it is out of operating capital and is in danger of completely closing operation due to 

an inability to fund payroll for its employees by close of business on Thursday, October 

13, 2015. 

23. The imminent loss of all of its employees and the complete lack of 

operating capital makes it very likely that Defendant is near closing operations, with the 

resulting threat of failure to perform on numerous existing contracts, including, but not 

limited to, the contracts with the USVA, USDD, and ASPA. 

 

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Snell & Wilmer

 L.L.P.

LAW OFFICES 

One Arizona Center, 400 E. Van Buren 

Phoenix, Arizona 85004-2202 

(602) 382-6000 

 

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24. Defendant is in default under the Loan Documents for, among other things, 

failing to repay the Loan on or before the maturity date. 

25. Defendant contractually consented to the appointment of a receiver in the 

event of default in the Loan Documents. 

26. Leaving Defendant’s business operations and the Collateral in Defendant’s 

control places Plaintiff’s secured interests in the Collateral in jeopardy. 

27. A receiver will provide proper security for the Collateral. 

28. Defendant is not opposed to the appointment of a receiver over the 

company itself, enabling the receiver to take steps to pay the existing employees and make 

arrangements to complete existing contracts, and stipulates to entry of an order appointing 

a receiver. 

29. Rule 66, Fed. R. Civ. P., authorizes Plaintiff to apply to this Court to seek 

the appointment of a receiver over Defendant and the Collateral. 

WHEREFORE, Plaintiff prays for judgment against Defendant as follows: 

A. For the immediate entry of a Stipulated Order Appointing a Receiver 

substantially in the form submitted contemporaneously herewith that 

includes the power of the receiver to operate Defendant’s business affairs 

and to sell the Collateral in the best business judgment of the receiver; 

B. For an award of its attorneys’ fees and costs pursuant to the Loan 

Documents and A.R.S. §§ 12-341 and 341.01; and 

C. For such other and further relief as this Court may deem just and 

equitable. 

COUNT II

(Breach of Contract) 

30. Plaintiff realleges and reincorporates by reference all preceding allegations 

contained in this complaint. 

31. There was a contract between Plaintiff and Defendant as evidenced by, 

among other things, the Loan Documents. 

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Snell & Wilmer

 L.L.P.

LAW OFFICES 

One Arizona Center, 400 E. Van Buren 

Phoenix, Arizona 85004-2202 

(602) 382-6000 

 

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32. Pursuant to the Loan Documents, Defendant promised to repay the full 

amount of the Loan by January 31, 2015. 

33. Defendant breached the Loan Documents by, among other things, failing to 

repay the full amount of the Loan by January 31, 2015 or any time thereafter. 

34. As this cause of action arises out of contract, Plaintiff is entitled to recover 

its costs and attorneys’ fees from Defendant pursuant to A.R.S. §§ 12-341 and 12-341.01 

and the Loan Documents. 

WHEREFORE, Plaintiff prays for judgment against Defendant as follows: 

A. For all amounts due under the Note pursuant to its terms; 

B. For costs and attorneys’ fees pursuant to the Loan Documents and/or 

A.R.S. §§ 12-341 and 12-341.01; 

C. For pre-judgment interest and fees from the date when payment was 

due under the Note calculated in accordance with the Loan Documents; 

D. For post-judgment interest and fees on the foregoing from the date of 

judgment until paid in full; 

E. For execution against Defendant’s non-exempt assets; and 

F. For such other and further relief as the Court may deem just and 

appropriate. 

RESPECTFULLY SUBMITTED this 12th day of October, 2015. 

SNELL & WILMER L.L.P.

By: s/ Christopher H. Bayley 

Christopher H. Bayley 

Emily Gildar Wagner 

One Arizona Center 

400 E. Van Buren 

Phoenix, AZ 85004-2202 

Attorneys for Plaintiff 

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Case 2:15-cv-02048-DLR Document 1 Filed 10/12/15 Page 7 of 7