JOINDER AGREEMENT
EXHIBIT 10.4
This
Joinder Agreement (the “Joinder”) is made as
of January 26, 2010 (the “Joinder Effective Date”) by
WTL Renewable Energies Inc., organized under the
laws of Canada (the “Joining Party”), and
Novo Energies Corp., an entity organized under the laws of Florida (“Novo” or the “Company”), in favor
of Trafalgar Capital Specialized Investment Fund, in its capacity as the Secured
Party. All capitalized terms used but not defined in this Joinder
shall have the meanings given to them in that certain Security Agreement dated
January 26, 2010, executed by and among Novo and the Secured Party (the “Security
Agreement”).
Preliminary
Statements
(a) Novo
is a party to the Security Agreement referred to above.
(b) The
Joining Party is a direct or indirect Subsidiary of the Company.
(c) It
is a condition to the obligations of the Secured Party under the Security
Agreement and the Securities Purchase Agreement dated January 26, 2010, (“Securities Purchase
Agreement”) by and between Novo and the Secured Party, that each
Subsidiary of the Company execute a Joinder whereby such Subsidiary becomes a
party to the Security Agreement and is bound by the terms and conditions
therein, which the Joining Party is willing to do.
Now therefore, in
consideration of the foregoing and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the Joining Party
agrees as follows:
1. Status and
Obligations. The Joining Party hereby acknowledges, agrees and confirms
that:
(a) Guarantee. The
Joining Party hereby unconditionally guarantees, as a primary obligor and not
merely as a surety, jointly and severally with each other direct or indirecty
subsidiary of the Company when and as due, whether at maturity, by acceleration,
by notice of prepayment or otherwise, the due and punctual performance of all
Obligations. The guaranty hereunder is one of payment and
performance, not collection.
(b) Security
Agreement. As of the Joinder Effective Date, the Joining Party
(i) will be deemed to be a party to the Security Agreement and a “Pledgor” for
all purposes of (and as the term is defined in) the Security Agreement as if it
had executed the same, (ii) has all of the obligations of a Pledgor under the
Security Agreement, (iii) makes each representation and warranty set forth in
the Security Agreement applicable to any Pledgor as of the Joinder Effective
Date, and (iv) is bound by all of the covenants, waivers, releases,
indemnifications and all other terms and provisions of the Security Agreement
given by, agreed to, binding on, or otherwise applicable to, any
Pledgor.
(c) Place of
Business. The location of the Joining Party’s chief place of
business is Europa Place x’Xxxxx 750 Code de Place x’Xxxxx Xxxxx 00, Xxxxxxxx,
XX X0X 0X0, Xxxxxx. The Joining Party shall not change the location
of its chief place of business, chief executive
office or any place of business disclosed to the Secured Party or move any
of its Pledged Property from its current location without thirty (30) calendar
days’ prior written notice to the Secured Party in each instance.
2. Representations
and Warranties. The Joining Party hereby represents and warrants
that:
(a) this
Joinder has been duly authorized, executed and delivered by the Joining Party
and constitutes a legal, valid and binding obligation of the Joining Party,
enforceable against the Joining Party in accordance with its terms, except as
the enforceability thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium, or similar laws affecting the enforceability of
creditors’ rights generally and subject to the discretion of the courts in
applying equitable remedies; and
(b) neither
the execution or delivery by the Joining Party of, nor the performance by the
Joining Party of its obligations under, this Agreement contravenes any
contractual or legal restriction binding on the Joining Party, or gives rise to
any default under any agreement binding on the Joining Party, or results in any
lien or other rights in favor of any person (other than the
Company).
3. Miscellaneous.
(a) Integration;
Confirmation. On and after the date hereof, the Security Agreement shall
be supplemented as expressly set forth herein; and all other terms and
provisions of the Security Agreement continue in full force and effect and
unchanged and are hereby confirmed in all respects.
(b) Section Captions.
Section captions used in this Joinder are for convenience of reference only, and
shall not affect the construction of this Joinder.
(c) Counterparts. This
Joinder may be executed in counterparts, each of which shall constitute an
original, but all of which when taken together shall constitute a single
contract. Delivery of an executed counterpart of a signature page of this
Joinder by telecopy or other electronic means shall be effective as delivery of
a manually executed counterpart of this Joinder.
(d) GOVERNING LAW. THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF FLORIDA WITHOUT REGARD TO ANY CHOICE OF LAW RULE THEREOF.
[Signature
pages follow]
In Witness Whereof,
each Joining Party has caused this Joinder to be duly executed by its authorized
officer as of the day and year first above written.
By:
Name:
Xxxxxxx Xxxxxxxx
Title:
CEO
WTL
RENEWABLE ENERGIES INC.
By:
Name:
Xxxxxxx Xxxxxxxx
Title:
CEO
Accepted
as of January 26, 2010:
Trafalgar
Capital Specialized Investment Fund, FIS
|
By: Trafalgar
Capital Sarl
|
|
Its: General
Partner
|
By: __________________
Name:________________
Title:________________
