Exhibit 10.5
EXTENSION AGREEMENT
EXTENSION
AGREEMENT, dated of as March 17, 2008, by and
between OPEN ENERGY CORPORATION (the “ Company
”), and YA GLOBAL INVESTMENTS, L.P. (formerly,
CORNELL CAPITAL PARTNERS, LP) (“ YA Global
”). All capitalized terms used herein shall have the
respective meanings assigned thereto in the Transaction Documents
(as defined below) unless otherwise defined herein.
W I T N E S S E T H:
WHEREAS, the
Company and YA Global have entered into certain financing
arrangements set forth on Schedule A attached hereto and
referred to herein as the “ Transaction Documents
” pursuant to which, YA Global is the holder of the
Secured Convertible Debenture (No. OEGY-2-1) in the principal
amount of $3,000,000 (the “ Debenture ”) issued
by the Company on March 29, 2007.
WHEREAS, the
Maturity Date of the Debenture is March 39, 2008.
WHEREAS, the
Company has requested that YA Global extend the Maturity Date for
one month to April 30, 2008.
WHEREAS, YA Global
is willing to agree to such extension on the terms and conditions
specified herein.
NOW, THEREFORE, in
consideration of the foregoing, and the respective agreements,
warranties and covenants contained herein, the parties hereto
agree, covenant and warrant as follows:
1.
ACKNOWLEDGMENTS .
a.
Acknowledgement of Obligations . The Company hereby
acknowledges, confirms and agrees that as of the date hereof, the
Company is indebted to YA Global under the Debenture and the
Transaction Documents in the outstanding principal amount plus
accrued and unpaid interest thereon and hereafter accruing and any
liquidated damaged, fees, costs, expenses and other charges now or
hereafter payable by the Company to YA Global under the Transaction
Documents (collectively, the “ Obligations ”)
and such Obligations are unconditionally owed by the Company to YA
Global, without offset, defense or counterclaim of any kind, nature
or description whatsoever.
b.
Acknowledgement of Security Interests . The Company
and its subsidiaries hereby acknowledges, confirm and agree that YA
Global has and shall continue to have valid, enforceable and
perfected first-priority liens upon and security interests in the
Pledged Property heretofore granted to YA Global pursuant to
the
Security Agreement between the Company, its
subsidiaries, and YA Global dated March 29, 2007 or otherwise
granted to or held by YA Global.
c.
Binding Effect of Documents . The Company hereto
acknowledges, confirms and agrees that: (a) each of the
Transaction Documents to which it is a party has been duly executed
and delivered to YA Global by the Company, and each is in full
force and effect as of the date hereof, (b) the agreements and
obligations of the Company contained in such documents and in this
Agreement constitute the legal, valid and binding obligations of
the Company, enforceable against each in accordance with their
respective terms, and the Company has no valid defense to the
enforcement of such obligations, and (c) YA Global is and
shall be entitled to the rights, remedies and benefits provided for
in the Transaction Documents and applicable law, without setoff,
defense or counterclaim of any kind, nature or descriptions
whatsoever.
2.
AGREEMENTS.
a.
Extension . In reliance upon the representations,
warranties and covenants of the Company contained in this
Agreement, and subject to the terms and conditions of this
Agreement YA Global agre
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