INTERCOMPANY SUBORDINATION AGREEMENT
INTERCOMPANY
SUBORDINATION AGREEMENT
THIS
INTERCOMPANY
SUBORDINATION AGREEMENT (this “Agreement”), dated as of April __, 2008, is made
by the Obligors (as defined below) in favor of ACF CTC, L.L.C., a Delaware
limited liability company, in its capacity as agent (in such capacity, together
with any successor in such capacity, the ”Agent”)
on
behalf of itself and the Lenders referred to below.
WITNESSETH:
WHEREAS,
Composite Technology Corporation, a Nevada corporation (the “Borrower”),
each
subsidiary of the Borrower listed as a “Guarantor”
on
the
signature pages thereto (together with each other Person that executes a joinder
agreement and becomes a “Guarantor” thereunder or otherwise guaranties all or
any part of the Obligations, each a “Guarantor”
and,
collectively, the “Guarantors”),
the
financial institutions from time to time party thereto (each a “Lender”
and,
collectively, the ”Lenders”),
and
the Agent are parties to the Financing Agreement, dated as of the date hereof
(such agreement, as amended, restated, supplemented or otherwise modified from
time to time, being hereinafter referred to as the “Financing
Agreement”),
pursuant to which the Lenders have agreed to make that certain Loan described
in
the Financing Agreement (the “Loan”)
to the
Borrower;
WHEREAS,
in order to induce the Agent and the Lenders to enter into the Financing
Agreement, each of the Guarantors has guaranteed pursuant to Article XI of
the
Financing Agreement or executed and delivered a Guaranty in favor of the Agent,
for the benefit of the Agent and the Lenders, with respect to certain of the
obligations owing by the Borrower to the Agent and the Lenders pursuant to
the
Financing Agreement;
WHEREAS,
each Obligor has made or may make certain loans or advances from time to time
to
one or more other Obligors; and
WHEREAS,
each Obligor has agreed to the subordination of such indebtedness of each other
Obligor to such Obligor, upon the terms and subject to the conditions set forth
in this Agreement.
NOW,
THEREFORE, in consideration of the premises and the agreements herein and in
order to induce the Agent and the Lenders to make and maintain the Loan pursuant
to the Financing Agreement, the Obligors hereby jointly and severally agree
with
the Agent and the Lenders as follows:
SECTION
1 Definitions;
Interpretation.
(a) Terms
Defined in Financing Agreement.
All
capitalized terms used in this Agreement and not otherwise defined herein shall
have the meanings assigned to them in the Financing Agreement.
(b) Certain
Defined Terms.
As used
in this Agreement, the following terms shall have the following
meanings:
“Additional
Obligor”
has
the
meaning set forth in Section 16 hereto.
“Insolvency
Event”
has
the
meaning set forth in Section 3 hereto.
“Obligors”
means,
collectively, the Borrower, the Guarantors, the Affiliates of the Borrower
signatories hereto and any Additional Obligors.
“Senior
Debt”
means,
collectively, the Obligations (as defined in the Financing
Agreement)
and the
Guaranteed Obligations (as defined in each Guaranty).
“Subordinated
Debt”
means,
with respect to each Obligor, all indebtedness, liabilities, and other
obligations of any other Obligor owing to such Obligor in respect of any and
all
loans or advances made by such Obligor to such other Obligor whether now
existing or hereafter arising, and whether due or to become due, absolute or
contingent, liquidated or unliquidated, determined or undetermined, including
all fees and all other amounts payable by any other Obligor to such Obligor
under or in connection with any documents or instruments related
thereto.
“Subordinated
Debt Payment”
means
any payment or distribution by or on behalf of the Obligors, directly or
indirectly, of assets of the Obligors of any kind or character, whether in
cash,
property, or securities, including on account of the purchase, redemption,
or
other acquisition of Subordinated Debt, as a result of any collection, sale,
or
other disposition of collateral, or by setoff, exchange, or in any other manner,
for or on account of the Subordinated Debt.
(c) Interpretation.
The
definitions of terms herein shall apply equally to the singular and plural
forms
of the terms defined. Whenever the context may require, any pronoun shall
include the corresponding masculine, feminine and neuter forms. The words
“include”, “includes” and “including” shall be deemed to be followed by the
phrase “without limitation”. The word “will” shall be construed to have the same
meaning and effect as the word “shall”. Unless the context requires otherwise,
(i) any definition of or reference to any agreement, instrument or other
document herein shall be construed as referring to such agreement, instrument
or
other document as from time to time amended, restated supplemented or otherwise
modified (subject to any restrictions on such amendments, restatements
supplements or modifications set forth herein), (ii) any reference herein to
any
Person shall be construed to include such Person's successors and assigns,
(iii)
the words “herein”, “hereof”, “hereby” and “hereunder”, and words of similar
import, shall be construed to refer to this Agreement in its entirety and not
to
any particular provision hereof, (iv) all references herein to Articles,
Sections, Subsections, Clauses, Exhibits, Schedules and Annexes shall be
construed to refer to Sections of, Subsections of, Clauses of, Exhibits to,
Schedules to and Annexes to, this Agreement, and (v) the words “asset” and
“property” shall be construed to have the same meaning and effect and to refer
to any and all tangible and intangible assets and properties, including cash,
securities, accounts and contract rights. References to statutes or regulations
are to be construed as including all statutory and regulatory provisions
consolidating, amending, or replacing the statute or regulation referred to.
The
captions and headings contained herein are for convenience of reference only
and
shall not affect the construction of this Agreement.
SECTION
2 Subordination
to Payment of Senior Debt.
As to
each Obligor, all payments on account of the Subordinated Debt shall be subject,
subordinate, and junior, in right of payment and exercise of remedies, to the
extent and in the manner set forth herein, to the prior payment, in full, in
cash or cash equivalents of the Senior Debt.
SECTION
3 Subordination
Upon Any Distribution of Assets of the Obligors.
As to
each Obligor, in the event of any payment or distribution of assets of any
other
Obligor of any kind or character, whether in cash, property, or securities,
upon
the dissolution, winding up, or total or partial liquidation or reorganization,
readjustment, arrangement, or similar proceeding relating to such other Obligor
or its property, whether voluntary or involuntary, or in an Insolvency
Proceeding, or upon any other marshaling or composition of the assets and
liabilities of such other Obligor, or otherwise (such events, collectively,
the
“Insolvency
Events”):
(a)
all amounts owing on account of the Senior Debt shall first be paid in full
in
cash, or payment provided for in cash or in cash equivalents, before any
Subordinated Debt Payment is made; and (b) to the extent permitted by applicable
law, any Subordinated Debt Payment to which such Obligor would be entitled
except for the provisions hereof, shall be paid or delivered by the trustee
in
bankruptcy, receiver, assignee for the benefit of creditors, or other
liquidating agent making such payment or distribution directly to the Agent
(or
its designee) for the benefit of the Agent and the Lenders for application
to
the payment of the Senior Debt in accordance with clause (a), after giving
effect to any concurrent payment or distribution or provision therefor to the
Agent and the Lenders in respect of such Senior Debt.
SECTION
4 Payments
on Subordinated Debt.
(a) Permitted
Payments.
To the
extent expressly permitted by the Financing Agreement and so long as no Event
of
Default shall have occurred and be continuing, each Obligor may make, and each
other Obligor shall be entitled to accept and receive, payments on account
of
the Subordinated Debt in the ordinary course of business.
(b) No
Payment Upon Senior Debt Defaults.
Upon
the occurrence of any Event of Default, and until such Event of Default is
cured
or waived, each Obligor shall not make, and each other Obligor shall not accept
or receive, any Subordinated Debt Payment.
SECTION
5 Subordination
of Remedies.
As long
as any Senior Debt shall remain outstanding and unpaid, following the occurrence
of any Event of Default and until such Event of Default is cured or waived,
no
Obligor shall, without the prior written consent of the Agent:
(a) accelerate,
make demand, or otherwise make due and payable prior to the original due date
thereof any Subordinated Debt or bring suit or institute any other actions
or
proceedings to enforce its rights or interests in respect of the obligations
of
any other Obligor owing to such Obligor;
(b) exercise
any rights under or with respect to guaranties of the Subordinated Debt, if
any;
(c) exercise
any rights to set-offs and counterclaims in respect of any indebtedness,
liabilities, or obligations of such Obligor to any other Obligor against any
of
the Subordinated Debt; or
(d) commence,
or cause to be commenced, or join with any creditor other than the Agent or
any
Lender, in commencing, any Insolvency Proceeding, or receivership proceeding
against any other Obligor.
SECTION
6 Payment
Over to Agent.
In the
event that, notwithstanding the provisions of Sections 3, 4, and 5, any
Subordinated Debt Payments shall be received in contravention of such Sections
3, 4, and 5 by any Obligor before the date on which all Senior Debt is paid,
in
full, in cash or cash equivalents, such Subordinated Debt Payments shall be
held
in trust for the benefit of the Agent and the Lenders and shall be paid over
or
delivered to the Agent (or its designee) for the benefit of the Lenders for
application to the payment in full in cash or cash equivalents, of all Senior
Debt remaining unpaid to the extent necessary to give effect to such Sections
3,
4, and 5, after giving effect to any concurrent payments or distributions to
the
Agent and the Lenders in respect of the Senior Debt.
SECTION
7 Authorization
to Agent.
If,
while any Subordinated Debt is outstanding, any Insolvency Event shall occur
and
be continuing with respect to any other Obligor or its property: (a) the
Agent hereby is irrevocably authorized and empowered (in the name of each
Obligor or otherwise), but shall have no obligation, to demand, xxx for,
collect, and receive every payment or distribution in respect of the
Subordinated Debt and give acquittance therefor and to file claims and proofs
of
claim and take such other action (including voting the Subordinated Debt) as
it
may deem necessary or advisable for the exercise or enforcement of any of the
rights or interests of the Agent and the Lenders; and (b) each Obligor shall
promptly take such action as the Agent reasonably may request (i) to collect
the
Subordinated Debt for the account of the Agent and the Lenders and to file
appropriate claims or proofs of claim in respect of the Subordinated Debt,
(ii)
to execute and deliver to the Agent such powers of attorney, assignments, and
other instruments as it may request to enable it to enforce any and all claims
with respect to the Subordinated Debt, and (iii) to collect and receive any
and
all Subordinated Debt Payments.
SECTION
8 Certain
Agreements of Each Obligor.
(a) No
Benefits.
Each
Obligor understands that there may be various agreements between the Agent
or
any Lender and any other Obligor evidencing and governing the Senior Debt,
and
each Obligor acknowledges and agrees that such agreements are not intended
to
confer any benefits on such Obligor and that the Agent and the Lenders shall
have no obligation to such Obligor or any other Person to exercise any rights,
enforce any remedies, or take any actions which may be available to them under
such agreements.
(b) No
Interference.
Each
Obligor acknowledges that each other Obligor has granted to the Agent for the
benefit of the Agent and the Lenders a Lien on the Collateral of such Obligor
and agrees not to interfere with or in any manner oppose a disposition of any
Collateral by the Agent and the Lenders, in accordance with applicable law
and
the terms of the applicable Loan Documents.
(c) Reliance
by the Agent and the Lenders.
Each
Obligor acknowledges and agrees that the Agent and the Lenders will have relied
upon and will continue to rely upon the subordination provisions provided for
herein and the other provisions hereof in entering into the Loan Documents
and
making the financial accommodations thereunder.
(d) Waivers.
Except
as provided under the Financing Agreement, each Obligor hereby waives any and
all notice of the incurrence of the Senior Debt or any part thereof and any
right to require marshaling of assets.
(e) Obligations
of Each Obligor Not Affected.
Each
Obligor hereby agrees that at any time and from time to time, without notice
to
or the consent of such Obligor, without incurring responsibility to such
Obligor, and without impairing or releasing the subordination provided for
herein or otherwise impairing the rights of the Agent and the Lenders hereunder:
(i) the time for any other Obligor's performance of or compliance with any
of
its agreements contained in the Loan Documents may be extended or such
performance or compliance may be waived by the Agent and the Lenders; (ii)
the
agreements of any other Obligor with respect to the Loan Documents may from
time
to time be modified by such other Obligor and the Agent and the Lenders for
the
purpose of adding any requirements thereto or changing in any manner the rights
and obligations of such other Obligor or the Agent and the Lenders thereunder;
(iii) the manner, place, or terms for payment of Senior Debt or any portion
thereof may be altered or the terms for payment extended, or the Senior Debt
may
be renewed in whole or in part; (iv) the maturity of the Senior Debt may be
accelerated in accordance with the terms of any present or future agreement
by
any other Obligor and the Agent and the Lenders; (v) any Collateral may be
sold,
exchanged, released, or substituted and any Lien in favor of the Agent may
be
terminated, subordinated, or fail to be perfected or become unperfected; (vi)
any Person liable in any manner for Senior Debt may be discharged, released,
or
substituted; and (vii) all other rights against any other Obligor, any other
Person, or with respect to any Collateral may be exercised (or the Agent and
the
Lenders may waive or refrain from exercising such rights).
(f) Rights
of the Agent and the Lenders Not to Be Impaired.
No
right of the Agent or any Lender to enforce the subordination provided for
herein or to exercise its other rights hereunder shall at any time in any way
be
prejudiced or impaired by any act or failure to act by any Obligor, the Agent
or
any Lender hereunder or under or in connection with the other Loan Documents
or
by any noncompliance by any Obligor with the terms and provisions and covenants
herein or in any other Loan Document, regardless of any knowledge thereof the
Agent or any Lender may have or otherwise be charged with.
(g) Financial
Condition of the Obligors.
Except
as provided under the Financing Agreement, each Obligor shall not have any
right
to require the Agent or any Lender to obtain or disclose any information with
respect to: (i) the financial condition or character of any other Obligor or
the
ability of any other Obligor to pay and perform Senior Debt; (ii) the Senior
Debt; (iii) the Collateral or other security for any or all of the Senior Debt;
(iv) the existence or nonexistence of any guarantees of, or any other
subordination agreements with respect to, all or any part of the Senior Debt;
(v) any action or inaction on the part of the Agent, any Lender or any other
Person; or (vi) any other matter, fact, or occurrence whatsoever.
(h) Acquisition
of Liens or Guaranties.
No
Obligor shall without the prior consent of the Agent, acquire any right or
interest in or to any Collateral not owned by such Obligor or accept any
guaranties for the Subordinated Debt.
SECTION
9 Subrogation.
(a) Subrogation.
Until
the payment and performance in full in cash of all Senior Debt, no Obligor
shall
have, or not directly or indirectly exercise, any rights that such Obligor
may
acquire by way of subrogation under this Agreement, by any payment or
distribution to the Agent and the Lenders hereunder or otherwise. Upon the
payment and performance in full in cash of all Senior Debt, each Obligor shall
be subrogated to the rights of the Agent and the Lenders to receive payments
or
distributions applicable to the Senior Debt until the Subordinated Debt shall
be
paid in full. For the purposes of the foregoing subrogation, no payments or
distributions to the Agent or any Lender of any cash, property, or securities
to
which any Obligor would be entitled except for the provisions of Section 3,
4,
or 5 shall, as among such Obligor, its creditors (other than the Agent and
the
Lenders), and any other Obligor, be deemed to be a payment by any other Obligor
to or on account of the Senior Debt.
(b) Payments
Over to the Obligors.
If any
payment or distribution to which any Obligor would otherwise have been entitled
but for the provisions of Section 3, 4, or 5 shall have been applied pursuant
to
the provisions of Section 3, 4, or 5 to the payment of all amounts payable
under
the Senior Debt, such Obligor shall be entitled to receive from the Agent and
the Lenders any payments or distributions received by the Agent and the Lenders
in excess of the amount sufficient to pay in full in cash all amounts payable
under or in respect of the Senior Debt. If any such excess payment is made
to
the Agent and the Lenders, the Agent and the Lenders shall promptly remit such
excess to such Obligor and until so remitted shall hold such excess payment
for
the benefit of such Obligor.
SECTION
10 Continuing
Agreement; Reinstatement.
(a) Continuing
Agreement.
This
Agreement is a continuing agreement of subordination and shall continue in
effect and be binding upon each Obligor until payment and performance in full
in
cash of the Senior Debt (excluding indemnification obligations as to which
no
claim has been made). The subordinations, agreements, and priorities set forth
herein shall remain in full force and effect regardless of whether any party
hereto in the future seeks to rescind, amend, terminate, or reform, by
litigation or otherwise, its respective agreements with any other
Obligor.
(b) Reinstatement.
This
Agreement shall continue to be effective or shall be reinstated, as the case
may
be, if, for any reason, any payment of the Senior Debt by or on behalf of any
other Obligor shall be rescinded or must otherwise be restored by the Agent
and
the Lenders, whether as a result of an Insolvency Event or
otherwise.
SECTION
11 Transfer
of Subordinated Debt.
No
Obligor may assign or transfer its rights and obligations in respect of the
Subordinated Debt without the prior written consent of the Agent, which consent
shall not be unreasonably withheld or delayed and any such assignment without
the Agent's prior written consent shall be null and void. Any such transferee
or
assignee, as a condition to acquiring an interest in the Subordinated Debt
shall
agree to be bound hereby, in form satisfactory to the Agent.
SECTION
12 Obligations
of the Obligors Not Affected.
The
provisions of this Agreement are intended solely for the purpose of defining
the
relative rights of each Obligor against the other Obligors, on the one hand,
and
of the Agent and the Lenders against the Obligors, on the other hand. Nothing
contained in this Agreement shall (i) impair, as between each Obligor and the
other Obligors, the obligation of each other Obligor to pay its respective
obligations with respect to the Subordinated Debt as and when the same shall
become due and payable, or (ii) otherwise affect the relative rights of
each Obligor against the other Obligors, on the one hand, and of the creditors
(other than the Agent and the Lenders) of the other Obligors against the other
Obligors, on the other hand.
SECTION
13 Endorsement
of Obligor Documents; Further Assurances and Additional Acts.
(a) Endorsement
of Obligor Documents.
At the
request of the Agent, all documents and instruments evidencing any of the
Subordinated Debt, if any, shall be endorsed with a legend in form and substance
reasonably satisfactory to the Agent noting that such documents and instruments
are subject to this Agreement, and each Obligor shall promptly deliver to the
Agent evidence of the same.
(b) Further
Assurances and Additional Acts.
Each
Obligor shall execute, acknowledge, deliver, file, notarize, and register at
its
own expense all such further agreements, instruments, certificates, financing
statements, documents, and assurances, and perform such acts as the Agent
reasonably shall deem necessary or appropriate to effectuate the purposes of
this Agreement, and promptly provide the Agent with evidence of the foregoing
reasonably satisfactory in form and substance to the Agent.
SECTION
14 Costs
and Expenses.
(a) Payments
by the other Obligor.
Each of
the Obligors jointly and severally agrees to pay to the Agent (or its designee)
on demand the out-of-pocket costs and expenses of the Agent and the Lenders,
and
the reasonable fees and disbursements of counsel to the Agent, in connection
with the negotiation, preparation, execution, delivery, and administration
of
this Agreement, and any amendments, modifications, or waivers of the terms
thereof.
(b) Payments
by the Obligors.
Each of
the Obligors jointly and severally agrees to pay to the Agent on demand all
reasonable costs and expenses of the Agent and the Lenders, and the fees and
disbursements of counsel to the Agent, in connection with the enforcement or
attempted enforcement of, and preservation of rights or interests under, this
Agreement, including any losses, costs and expenses sustained by the Agent
or
any Lender as a result of any failure by any Obligor to perform or observe
its
obligations contained in this Agreement.
SECTION
15 Miscellaneous.
(a) Notices.
All
notices and other communications provided for hereunder shall, unless otherwise
stated herein, be in writing and shall be mailed, telecopied, or delivered
in
accordance with the notice provisions contained in the Financing
Agreement.
(b) No
Waiver; Cumulative Remedies.
No
failure on the part of the Agent or any Lender to exercise, and no delay in
exercising, any right, remedy, power or privilege hereunder or under any other
Loan Document shall operate as a waiver thereof, nor shall any single or partial
exercise of any such right, remedy, power or privilege hereunder or under any
other Loan Document preclude any other or further exercise thereof or the
exercise of any other right, remedy, power or privilege. The rights and remedies
under this Agreement are cumulative and not exclusive of any rights, remedies,
powers and privileges that may otherwise be available to the Agent and the
Lenders.
(c) Survival.
All
covenants, agreements, representations and warranties made in this Agreement
shall, except to the extent otherwise provided herein, survive the execution
and
delivery of this Agreement, and shall continue in full force and effect so
long
as any Senior Debt remains unpaid in full.
(d) Benefits
of Agreement.
This
Agreement is entered into for the sole protection and benefit of the parties
hereto and their respective successors and assigns, and no other Person shall
be
a direct or indirect beneficiary of, or shall have any direct or indirect cause
of action or claim in connection with, this Agreement.
(e) Binding
Effect.
This
Agreement shall be binding upon, inure to the benefit of and be enforceable
by
each Obligor, the Agent and each Lender and their respective successors and
permitted assigns except that no Obligor shall have the right to assign its
rights hereunder or any interest herein without the prior written consent of
the
Agent.
(f) GOVERNING
LAW.
THIS
AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF
THE
STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED IN THE STATE
OF NEW YORK.
(g) CONSENT
TO JURISDICTION; SERVICE OF PROCESS AND VENUE.
ANY
LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT MAY BE BROUGHT IN XXX XXXXXX XX XXX XXXXX XX XXX XXXX IN THE COUNTY
OF
NEW YORK OR OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF
NEW
YORK, AND, BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH OF THE OBLIGORS
HEREBY IRREVOCABLY ACCEPTS IN RESPECT OF ITS PROPERTY, GENERALLY AND
UNCONDITIONALLY, THE JURISDICTION OF THE AFORESAID COURTS.
EACH
OF
THE
OBLIGORS
HEREBY
IRREVOCABLY APPOINTS THE SECRETARY OF STATE OF THE STATE OF NEW YORK AS ITS
AGENT FOR SERVICE OF PROCESS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING AND
FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY OF THE
AFOREMENTIONED COURTS AND IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF
COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO THE BORROWER
AT ITS ADDRESS FOR NOTICES AS SET FORTH IN THE FINANCING AGREEMENT AND TO THE
SECRETARY OF STATE OF THE STATE OF NEW YORK, SUCH SERVICE TO BECOME EFFECTIVE
10 DAYS AFTER SUCH MAILING. EACH OBLIGOR
AGREES
THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE
AND
MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER
MANNER PROVIDED BY LAW. NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE AGENT
AND
THE LENDERS TO SERVICE OF PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO
COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST ANY OBLIGOR IN ANY
OTHER
JURISDICTION. EACH OBLIGOR
HEREBY
EXPRESSLY AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY
OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE JURISDICTION OR LAYING
OF
VENUE OF ANY SUCH LITIGATION BROUGHT IN ANY SUCH COURT REFERRED TO ABOVE AND
ANY
CLAIM THAT ANY SUCH LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. TO
THE
EXTENT THAT ANY OBLIGOR HAS OR HEREAFTER MAY ACQUIRE ANY IMMUNITY FROM
JURISDICTION OF ANY COURT OR FROM ANY LEGAL PROCESS (WHETHER THROUGH SERVICE
OR
NOTICE, ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT IN AID OF EXECUTION OR
OTHERWISE) WITH RESPECT TO ITSELF OR ITS PROPERTY, EACH OBLIGOR
HEREBY
IRREVOCABLY WAIVES SUCH IMMUNITY IN RESPECT OF ITS OBLIGATIONS UNDER THIS
AGREEMENT AND THE OTHER LOAN DOCUMENTS.
(h) Entire
Agreement.
This
Agreement constitutes the entire agreement of each of the Obligors with respect
to the matters set forth herein and shall not be contradicted or qualified
by
any other agreement, oral or written, before the date hereof.
(i) Amendments
and Waivers.
No
amendment or waiver of any provision of this Agreement or consent to any
departure by any Obligor therefrom, shall in any event be effective unless
the
same shall be in writing and signed by each of the Obligors and the Agent.
Any
such amendment, waiver, or consent shall be effective only in the specific
instance and for the specific purpose for which given.
(j) Conflicts.
In case
of any conflict or inconsistency between any terms of this Agreement, on the
one
hand, and any documents or instruments in respect of the Subordinated Debt,
on
the other hand, then the terms of this Agreement shall control.
(k) Severability.
Any
provision of this Agreement which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining portions
hereof or affecting the validity or enforceability of such provision in any
other jurisdiction.
(l) Interpretation.
This
Agreement is the result of negotiations between, and has been reviewed by the
respective counsel to, the Obligors, the Agent and the Lenders and is the
product of all parties hereto. Accordingly, this Agreement shall not be
construed against the Agent and the Lenders merely because of their involvement
in the preparation hereof.
(m) Counterparts;
Telecopy Execution.
This
Agreement may be executed in any number of counterparts and by different parties
hereto in separate counterparts, each of which when so executed shall be deemed
to be an original and all of which taken together shall constitute but one
and
the same agreement. Delivery of an executed counterpart of this Agreement by
telecopy or electronic mail shall be equally effective as delivery of an
original executed counterpart of this Agreement. Any party delivering an
executed counterpart of this Agreement by telecopy or electronic mail also
shall
deliver an original executed counterpart of this Agreement but the failure
to
deliver an original executed counterpart shall not affect the validity,
enforceability, and binding effect of this Agreement.
(n) Termination
of Agreement.
Upon
payment and performance in full in cash of the Senior Debt, this Agreement
shall
terminate and the Agent on behalf of the Lenders shall promptly execute and
deliver to each Obligor such documents and instruments as shall be reasonably
necessary and available to evidence such termination.
SECTION
16 Additional
Obligors.
The
initial Obligors hereunder shall be such of the Obligors as are signatories
hereto as of the date hereof. From time to time subsequent to the date hereof,
additional Obligors, as required by the Financing Agreement or the other Loan
Documents, may become parties hereto, as additional Obligors (each, an
“Additional
Obligor”),
by
executing and delivering a counterpart of this Agreement. Upon delivery of
any
such counterpart to the Agent, notice of which is hereby waived by any other
Obligor, each such Additional Obligor shall be an Obligor and shall be as fully
a party hereto as if such Additional Obligor were an original signatory hereof.
Each Obligor expressly agrees that its obligations arising hereunder shall
not
be affected or diminished by the addition or release of any other Obligor
hereunder. This Agreement shall be fully effective as to any Obligor that is
or
becomes a party hereto regardless of whether any other Person becomes or fails
to become or ceases to be an Obligor hereunder.
[Signature
Page Follows]
IN
WITNESS WHEREOF, the parties hereto have duly executed this Agreement, as of
the
date first above written.
|
OBLIGORS:
|
|||||
|
COMPOSITE
TECHNOLOGY CORPORATION
|
|||||
|
By:
|
|||||
|
Name:
|
|||||
|
Title:
|
|||||
|
AGENT
AND LENDER:
|
|||||
|
ACF
CTC, L.L.C.
|
|||||
|
By:
|
|||||
|
Name:
|
Xxxx Xxxxxx | ||||
|
Title:
|
Authorized Representative | ||||
|
GUARANTORS:
|
|||||
|
CTC
CABLE CORPORATION
|
|||||
|
By:
|
|||||
|
Name:
|
|||||
|
Title:
|
|||||
|
TRANSMISSION
TECHNOLOGY CORPORATION
|
|||||
|
By:
|
|||||
|
Name:
|
|||||
|
Title:
|
|||||
|
CTC
TOWERS & POLES CORPORATION
|
|||||
|
By:
|
|||||
|
Name:
|
|||||
|
Title:
|
|||||
|
XXXXXX,
INC.
|
|||||
|
By:
|
|||||
|
Name:
|
|||||
|
Title:
|
|||||
|
EU
ENERGY INC.
|
|||||
|
By:
|
|||||
|
Name:
|
|||||
|
Title:
|
|||||
|
EU
ENERGY NORTH AMERICA, INC
|
|||||
|
By:
|
|||||
|
Name:
|
|||||
|
Title:
|
|||||
