INTER-CREDITOR AGREEMENT
EXHIBIT
10.9
This
INTER-CREDITOR AGREEMENT
(the “Agreement”) is made
and effective as of July 2, 2009, by and between the holders of
Ecotality, Inc’s 8% Original Issue Discount Secured Convertible
Debentures due April 2010, and signatory hereto (“Existing Creditors”)
and the New Creditors (as defined below) (the Existing Creditors and the New
Creditors are collectively referred to as the “Creditors”).
RECITALS
WHEREAS,
the Existing Creditors are the parties to those certain Securities Purchase
Agreements dated November 6, 2007 and December 6, 2007, as amended (the “Purchase Agreements”)
by and between each Existing Creditor and Ecotality, Inc. (the “Company”) and are the
holders of 8% Original Issue Discount Secured Convertible Debentures due,
subject to the terms therein, April 2010, with an aggregate total face amount of
approximately $7,175,000 as of the date hereof, executed by the Company in favor
of the Existing Creditors (the “Existing
Indebtedness”), and the Existing Creditors are the beneficiaries of that
certain Security Agreement dated November 6, 2007 (the “Security Agreement”)
among the Company, its subsidiaries and the Existing Creditors and Enable Growth
Partners, LP (“Collateral Agent”),
as collateral agent for the benefit of the Existing Creditors (“Collateral
Agent”);
WHEREAS,
pursuant to that certain Securities Purchase Agreement dated July 2, 2009 (the
“New Creditors
Securities Purchase Agreement”), the investors signatory thereto (the
“New
Creditors”) will be purchasing $2,500,000, in the aggregate principal
amount of 8% Secured Convertible Debentures due, subject to the terms therein,
October 2010, from the Company (the “New Indebtedness” and
together with the Existing Indebtedness, the “Indebtedness”);
WHEREAS,
the New Indebtedness will also be secured by all assets of the
Company;
WHEREAS,
the New Indebtedness and the Existing Indebtedness will also be secured by all
assets of the Company on a pari passu basis;
WHEREAS,
the Creditors wish to memorialize their agreements concerning their respective
rights, duties and obligations to one another with respect to the security
interests granted under the Indebtedness.
NOW,
THEREFORE, in consideration of the mutual covenants herein, their respective
performances and benefits pertaining to the Indebtedness, and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
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1.
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Ranking.
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1.1
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The
Indebtedness shall rank in the following order of priority: any
sums secured or owed to the Existing Creditors or the New Creditors, pari passu and pro-rata in
proportion to such Creditor’s outstanding principal amounts of
Indebtedness at any given time that a determination needs to be made of
pro-rata holdings. For clarity, as of the date of the closing of the
issuance of the New Indebtedness, the pro-rata principal
holdings of the Existing Creditors (collectively) are $7,175,000 and the
pro-rata principal
holdings of the New Creditors (collectively) are
$2,500,000. The Creditors authorize the Collateral Agent to
perform its obligations under the Security Agreements pursuant to this
provision. The Company and each Subsidiary agree that all
payments of Obligations under the New Indebtedness and the Existing
Indebtedness shall be made in accordance with the relative priorities and
proportions set forth herein. In addition, the Company
hereby agrees to cause all direct and indirect subsidiaries hereafter
formed or acquired to agree to be bound by the terms of this
Agreement.
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1.2
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If
an Event of Default (as defined under any Indebtedness) occurs and any
party hereto receives payment from the Company not in compliance with this
Agreement, the other parties hereto shall be immediately notified and such
payment shall be shared with all of the other Creditors in proportion to
their respective pro-rata holdings as set forth
above.
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1.3
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If
an Event of Default occurs and any party hereto collects proceeds pursuant
to its rights under any Indebtedness, the other parties shall be
immediately notified and such payment shall be shared with all of the
other Creditors as set forth above.
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1.4
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Notwithstanding
any other provision in this Agreement, adjustments shall be made between
the Creditors from time to time to reflect the fact that any contingent
obligation taken into account as an obligation under the Indebtedness
becomes satisfied or incapable of maturing into an actual
obligation.
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1.5
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Notwithstanding
anything to the contrary contained in the Purchase Agreement
or any document executed in connection with the New
Indebtedness or the Existing Indebtedness and irrespective of: (i) the
time, order or method of attachment or perfection of the security
interests created in favor of Existing Creditors and the New Creditors,
(ii) the time or order of filing or recording of financing statements or
other documents filed or recorded to perfect security interests in any
collateral; (iii) anything contained in any filing or agreement to which
any Creditor now or hereafter may be a party; and (iv) the rules for
determining perfection or priority under the Uniform Commercial Code or
any other law governing the relative priorities of secured creditors, each
Creditor acknowledges that (x) all other Creditors have a valid security
interest in the Collateral and (y) the security interests of the Creditors
in any Collateral pursuant to any outstanding Indebtedness shall be
pari-passu with each other.
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1.6
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Each
Creditor agrees not to commence any action or proceeding concerning the
Indebtedness or the Collateral without providing at least one business
day’s prior written notice to all
Creditors.
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2.
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Indemnification by
Existing Creditors. Existing Creditors shall indemnify,
defend, and hold harmless New Creditors against and in respect of any and
all claims, demands, losses, costs, expenses, obligations, liabilities,
damages, recoveries, and deficiencies, including interest, penalties, and
reasonable professional and attorneys’ fees, including those arising from
settlement negotiations, that New Creditors shall incur or suffer, which
arise, result from, or relate to a breach of, or failure by Existing
Creditors to perform under this
Agreement.
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3.
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Indemnification by New
Creditors. New Creditors shall indemnify, defend, and
hold harmless Existing Creditors against and in respect of any and all
claims, demands, losses, costs, expenses, obligations, liabilities,
damages, recoveries, and deficiencies, including interest, penalties, and
reasonable professional and attorneys’ fees, including those arising from
settlement negotiations, that Existing Creditors shall incur or
suffer, which arise, result from, or relate to a breach of, or failure by
New Creditors to perform under this
Agreement.
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4.
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Miscellaneous.
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4.1 Assignment. The
rights and obligations of the Creditors under this Agreement may be assigned to
or assumed to a transferee of the Debentures (as defined in the Purchase
Agreements and as defined in the New Creditors Securities Purchase Agreement),
as applicable.
4.2 Binding
Effect. This Agreement shall be binding on, and shall inure to
the benefit of, the parties to it and their respective heirs, legal
representatives, and successors.
4.3 Parties in
Interest. Except as expressly provided in this Agreement,
nothing in this Agreement, whether express or implied, is intended to confer any
rights or remedies under or by reason of this Agreement on any persons other
than the parties to it and their respective successors and assigns, nor is
anything in this Agreement intended to relieve or discharge the obligation or
liability of any third persons to any party to this Agreement, nor shall any
provision give any third persons any right to subrogation or action over against
any party to this Agreement.
4.4 Entire
Agreement. This Agreement constitutes the entire agreement
between the parties pertaining to the subject matter contained in it and
supersedes all prior and contemporaneous agreements, representations and
understandings of the parties.
4.5 Amendment. No
supplement, modification, or amendment of this Agreement shall be binding unless
executed in writing by all the parties.
4.6 Waiver. No waiver
of any of the provisions of this Agreement shall be deemed, or shall constitute,
a waiver of any other provision, whether or not similar, nor shall any waiver
constitute a continuing waiver. No waiver shall be binding unless
executed in writing by the party making the waiver.
4.7 Notices. Notices
given under this Agreement shall be delivered as set forth in the Purchase
Agreements.
4.8 Governing Law and
Venue. This Agreement shall be construed in accordance with,
and governed by, the laws of the State of New York, and any action or
proceeding, including arbitration, brought by any party in which this Agreement
is a subject, shall be brought in New York County, New York.
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4.9 Effect of
Headings. The headings of the Sections of this Agreement are
included for purposes of convenience only, and shall not affect the construction
or interpretation of any of its provisions.
4.10 Invalidity. Any
provision of this Agreement which is invalid, void, or illegal, shall not
affect, impair, or invalidate any other provision of this Agreement, and such
other provisions of this Agreement shall remain in full force and
effect.
4.11 Counterparts. This
Agreement may be executed in multiple counterparts, each of which may be
executed by less than all of the parties and shall be deemed to be an original
instrument which shall be enforceable against the parties actually executing
such counterparts and all of which together shall constitute one and the same
instrument. In lieu of the original documents, a facsimile
transmission or copy of the original documents shall be as effective and
enforceable as the original.
4.12 Number and
Gender. When required by the context of this Agreement, each
number (singular and plural) shall include all numbers, and each gender shall
include all genders.
4.13 Further
Assurances. Each party to this Agreement agrees to execute
further instruments as may be necessary or desirable to carry out this
Agreement, provided the party requesting such further action shall bear all
related costs and expenses.
4.14 Professional Fees and
Costs. If any legal or equitable action, arbitration, or other
proceeding, whether on the merits or on motion, are brought or undertaken, or an
attorney retained, to enforce this Agreement, or because of an alleged dispute,
breach, default, or misrepresentation in connection with any of the provisions
of this Agreement, then the successful or prevailing party or parties in such
undertaking (or the party that would prevail if an action were brought) shall be
entitled to recover reasonable attorney's fees and other professional fees and
other costs incurred in such action, proceeding, or discussions, in addition to
any other relief to which such party may be entitled. The parties
intend this provision to be given the most liberal construction possible and to
apply to any circumstances in which such party reasonably incurs
expenses.
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[SIGNATURE
PAGE ETLY INTERCREDITOR AGREEMENT]
IN
WITNESS WHEREOF, this Agreement has been duly executed by the Creditors as of
the day and year first written above.
CREDITORS:
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Print Name:
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By:
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Name:
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Title:
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Address for
Notice:
ACKNOWLEDGED
AND AGREED TO:
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By:
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Name:
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Title:
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[INSERT
NAMES AND SIGNATURE BLOCKS FOR SUBSIDIARIES]
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