Exhibit 10.37


 


CONSTRUCTION LOAN AGREEMENT


 


THIS CONSTRUCTION LOAN AGREEMENT (“Agreement”),
dated February 8, 2008, is by
and between the Colorado Housing and Finance Authority (the “Authority”), a
body corporate and political subdivision of the State of Colorado and Ascent Solar Technologies, Inc., a Delaware
corporation (the “Borrower”).


 


In consideration of the mutual covenants and
agreements herein contained, the Borrower and the Authority agree as follows:


 


1.             Loan and Purpose. The Authority
agrees to lend and the Borrower agrees to borrow from the Authority up to Seven Million Five Hundred Thousand and No/100 Dollars
($7,500,000.00) (the “Loan”) for the acquisition and renovation of a
commercial facility located at 12300 Grant
Street, Thornton, CO 80241, consisting of a building and
improvements (the “Improvements”) upon the real property described in Exhibit A  attached hereto (the “Property”). The Loan
will be disbursed to the Borrower subject to all of the terms, provisions,
conditions, covenants and agreements contained in this Agreement and a
Disbursement Agreement of even date herewith among the Authority, the Borrower
and the Escrow Agent (as defined in the Disbursement Agreement). The Loan is
evidenced by a promissory note of even date herewith (the “Note”) and secured
by a Deed of Trust, Security Agreement, Financing Statement and Assignment of
Rents and Leases of even date herewith (the “Deed of Trust”). The Authority
agrees to make an initial advance in an amount of no more than Four Million One
Hundred Thirty-Six Thousand Five Hundred Dollars ($4,136,500.00), to fund the
acquisition of the Property and Improvements by Borrower. The balance of the
Loan shall be available to fund renovations to the Improvements, in accordance
with the terms and provisions of this Agreement. Notwithstanding anything
herein to the contrary, the Authority reserves the right at any time to refuse
to fund any amounts hereunder if the Authority determines, in its sole
judgment, that either the Borrower or the Loan fails to strictly conform to the
requirements of the Commitment (defined below), this Loan Agreement, the Authority’s
Business Finance Credit Policy, or the Authority’s Direct Loan Program
Guidelines.


 


2.             Conditions
Precedent to Initial Advance for Acquisition. Prior to the advance of any Loan proceeds under
this Agreement and as a condition precedent to the initial advance of Loan
proceeds by the Authority for the Borrower’s acquisition of the Property and Improvements,
all of the following conditions shall have been satisfied, which satisfaction
shall be determined by the Authority in its sole discretion:


 


(a)             The Construction
Loan Conditions set forth in that certain Construction and Permanent Loan
Commitment issued by the Authority dated January 16, 2008 (the “Commitment”),
including,
but not limited to, those conditions set forth in Paragraphs 12, 13, 16, and
17, and Paragraphs A and B of Exhibit A thereof, which conditions are incorporated
herein by reference, shall have been satisfied.


 


(b)             Borrower shall have
performed and complied in all material respects with all covenants, agreements
and conditions required by this Agreement, the Disbursement Agreement, and any other
document evidencing, securing or executed in connection with the Loan (the “Loan
Documents”) to be performed or complied with by it on or before the date of
such advance. Notwithstanding the foregoing, the Authority may, in its sole
discretion, make advances notwithstanding the Borrower’s failure to fully
perform or so comply however any such advance shall be deemed to have been made
pursuant to this Agreement and shall not be deemed a waiver by the Authority of
such failure or any future performance therewith.


 


3.             Conditions Precedent to
Commencement of Construction, Additional Advances. The Borrower shall
not begin construction of any of the Renovations, defined below, until (x) the
conditions set


 


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forth in Section 2 hereof, and the further
conditions set forth in subparagraphs (a), (b), (c), (d), and (e) of this
section, have been satisfied and, in addition, (y) the Loan is in balance
as of the date of the commencement of the Renovations, as set forth in greater
detail in subparagraph (k) hereof, and (z) the Authority has
confirmed, in writing to Borrower, the satisfaction of such conditions. In
addition, the Authority’s obligation to make any additional advance of Loan
proceeds or of any funds deposited by Borrower pursuant to the terms hereof
after the initial advance, and each and every such additional advance to be
made by the Authority hereunder, shall be subject to the satisfaction of the
conditions precedent listed in Section 2, and to the following:


 


(a)             Borrower shall have
furnished to the Authority for its review and approval a set of the final plans
and specifications (the “Plans”) for the renovations to the Improvements (the “Renovations”)
which shall have been approved by the Authority. A copy of the Plans shall be
incorporated herein by this reference when received and approved by the
Authority. No material changes in the Plans shall be made without the prior
written approval of the Authority.


 


(b)             Borrower shall have
furnished to the Authority for its review and approval, a copy of the final “line
item” construction budget (the “Budget”) and executed schedule of values (the “Schedule
of Values”) prepared by the Contractor and co-signed by Borrower and approved
by Lender, disclosing the various subcontracts and other contracts and
agreements, written or oral, entered into by the Contractor in connection with
construction of the Renovations, setting forth: (A) the names of all
subcontractors and other parties with whom the Contractor has contracted or
agreed to date; (B) whether such contract or agreement is written or oral;
(C) the labor, materials or other work to be furnished pursuant thereto; (D) the
amount of each subcontract, contract or other agreement; (E) the amounts
paid to date; and (F) the balance due thereunder, and attaching copies of
each such written subcontract, contract and other agreement. Borrower shall
also furnish a final construction completion schedule for approval by the
Authority.


 


(c)             Borrower shall have
provided to the Authority for its review and approval a copy of the fully
executed contract for the construction of the Renovations (the “Construction
Contract”) with Borrower’s
general contractor (the “Contractor”), and any principal subcontracts. The
Construction Contract and such other principal contracts as determined by the
Authority shall be collaterally assigned to the Authority pursuant to
agreements satisfactory to the Authority. The Construction Contract and principal
subcontracts must provide a minimum one-year warranty of all work and against
latent defects.


 


(d)             Borrower shall have
obtained and delivered to the Authority all necessary building permits issued
by the appropriate governmental authority for all Renovations.


 


(e)             Borrower shall have
delivered evidence of its policy of builder’s all risk insurance and the
Contractor’s policy of commercial general liability insurance in accordance
with the provisions of the Commitment.


 


(f)              All materials
incorporated in the Improvements shall have been purchased so that the absolute
ownership thereof shall become vested
in Borrower immediately upon delivery thereof to the Property or installation
in the Improvements.


 


(g)             Neither the
Improvements nor any other part of the Property shall have been materially
injured or damaged by any casualty, or condemned or threatened with
condemnation.


 


(h)             The Authority shall
have been furnished with an endorsement to the title insurance policy issued by
Land Title Guarantee Company (the “Title Company”) disclosing no additional
exceptions to title to the Property or Improvements and increasing the amount
of the coverage equal to the amount of the advance requested plus the total of
all prior advances and deleting the mechanic’s and materialmen’s lien exception
with respect thereto.


 


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(i)              Borrower shall be
in compliance with all governmental regulations pertaining to the zoning,
construction, maintenance and operation of the Improvements.


 


(j)              The Authority shall
have inspected the work in place and determined that all Renovations completed
to the date of the request for an advance have been performed in accordance
with the Plans in a good and workmanlike manner and that the Renovations
theretofore completed are of a value reasonably determined by the Authority to
be not less than the amount theretofore disbursed, plus the amount requested.
The Authority and its agents shall have the right of entry and free access to
the Improvements during normal business hours and the right to inspect all work
done, and materials, equipment and fixtures furnished, installed or stored in
and about the Improvements and to inspect all books, contracts and records of
the Borrower.


 


(k)             The Loan shall be
and remain in balance. The Loan shall be deemed to be in balance only when the
undisbursed proceeds of the Loan (after provision for reserves, fees, expenses
and other deposits required by the Authority) equal or exceed the amount
necessary (based on the Authority’s estimate of the cost to complete
construction of the Renovations) to pay for all work completed and all
materials delivered, for which payment has not been made, and the cost of
completing the Renovations in accordance with the Plans.


 


(l)              Changes in the
Plans, or changes by altering or adding to the work contemplated, or orders for
extra work must have received the prior written approval of the Authority.


 


4.             Disbursement of Loan Proceeds. The Loan proceeds,
as well as any funds that may be deposited by the Borrower pursuant to the
terms hereof, shall be held by the Authority and disbursed through the Escrow
Agent from time to time in accordance with the following:


 


(a)             Except for the
initial disbursement to be made by the Authority at closing of the Loan to fund
the Borrower’s acquisition of the Property and Improvements, the Borrower shall
make applications
for disbursements of the Loan proceeds (each a “Draw Request”) in accordance
with the Disbursement Agreement.


 


(b)             If, at any time a
mechanic’s lien is filed against the Property and Improvements or a notice of
intent to file a mechanic’s lien is filed which is not released or otherwise satisfied
to the Authority’s satisfaction, or if the Borrower fails to comply with any of
the other terms, conditions and provisions of this Agreement, or if the
Authority determines, which determination shall be binding on Borrower, that
the materials furnished or work performed do not comply with the Plans, or if
the Authority determines that the work done at that particular stage of
construction has not been done in a good and workmanlike manner, or if Borrower
is in
any way in default under the Loan Documents, the Authority may, at its option,
refuse to make a disbursement pursuant to any Draw Request until such
conditions have been remedied to the satisfaction of the Authority and may
exercise its other rights and remedies under the Loan Documents.


 


(c)             If the Authority
determines that the Loan is not in balance and there are insufficient
undisbursed Loan proceeds to enable the Borrower to complete the construction
of the Renovations, or make any other payments required herein or under the
Loan Documents, including but not limited to the payment of all items described
in paragraph (f) of this Section 5 (the “Other Costs”), or if there
are insufficient funds in a line item, as shown on the Budget or Schedule of
Values, then the Authority may refuse to make any further disbursements of Loan
proceeds until Borrower shall have deposited with the Title Company an amount
(the “Borrower’s Balancing Funds”) equal to the greater of: (i) the amount
as determined and certified by a licensed architect, employed at Borrower’s
expense and approved by the Authority, as the amount required to complete the
Renovations in accordance with the Plans together with payment of the Other
Costs; (ii) the amount of any subcontracts and/or firm quotations for the
completion of any such work together with payment of the Other Costs; or (iii) an
amount determined necessary by the Authority to bring the Loan in balance. The
Borrower’s Balancing Funds


 


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shall be deposited into an interest-bearing account
established by the Title Company for the purpose of disbursing the Loan
proceeds and shall for all purposes become a part of the Loan proceeds as
provided herein and in the Disbursement Agreement and shall be disbursed first
to fund Draw Requests prior to the disbursement of any further Loan proceeds.
All Borrower’s Balancing Funds are hereby pledged to secure the Loan and in the
event of default by Borrower under the Loan Documents, Borrower’s Balancing
Funds may, at the option of Lender, be applied either to the completion of the
Renovations or the amounts due to the Lender under the Loan Documents.


 


(d)             The Authority may,
without the consent of the Borrower, but with prior notice to Borrower before
disbursement, authorize the disbursement to itself from the Loan proceeds any
sums payable to the Authority by the Borrower on account of recording costs,
title insurance costs, loan fees, attorney fees, interest, loan extension fees,
insurance, taxes and inspection fees all as provided for in the Loan Documents;
provided, however, that Borrower may pay any of such items and upon furnishing
receipt evidencing such payments, shall be entitled to reimbursement from the
Loan proceeds, provided there are sufficient funds to complete the construction
of the Renovations and such items are included in the Budget.


 


5.             Additional
Conditions for Final Disbursement. In addition to the satisfaction of all other
conditions for the disbursement of Loan proceeds, the final disbursement of
Loan proceeds and retainage shall be subject to the following:


 


(a)             Receipt and
approval by the Authority of a final certificate of occupancy or other evidence
of the completion of construction and approval of the Improvements for
occupancy from the applicable governmental authority.


 


(b)             Receipt and
approval by the Authority of Certificates of completion from Borrower’s
architect stating that the Renovations have been completed substantially in
accordance with the Plans and all applicable requirements of governmental
authorities and that an authorized representative of the party executing the certificate made such periodic inspections of
the Renovations during the course of construction as it deemed necessary as the
basis of such certification, and any other evidence reasonably required by
Authority that the Renovations have been completed in compliance with all
requirements of governmental authority.


 


(c)             Such final lien
waivers, certificates and estoppels as the Authority or Title Company may
reasonably require from Borrower’s architect, general contractor, and all other contractors,
subcontractors and material suppliers retained by Borrower or Borrower’s general contractor or any
subcontractor which have performed work on the Property or provided labor, materials or
supplies in connection therewith certifying receipt of the final payment of all
sums owing to each of such parties from Borrower with respect to the
construction and stating that each such party has no claim against Borrower,
the construction or any Loan funds arising out of or in connection with such work,
labor, materials or supplies.


 


(d)             An affidavit and
indemnity duly executed by Borrower stating that each person providing any
material or performing any work in connection with the construction for
Borrower, the general contractor and all subcontractors has been paid in full
or will be paid in full from the proceeds of such advance, and that lien
waivers have been received from all contractors, subcontractors and
suppliers who have performed work or supplied materials in connection with the
construction of the construction for Borrower, the general contractor and all
subcontractors.


 


(e)             The Authority
agrees that if upon final completion of the Renovations the total actual costs
of the acquisition and renovation of the Property and Improvements is less than
the amount estimated as of the execution of the Commitment and therefore the
Borrower’s equity advanced at closing is more than the fifteen percent (15%) of
such costs required in the Commitment, the Authority agrees to refund the
amount of such excess equity to Borrower from the Loan proceeds, less any Cost
of Funds Reimbursement due to the Authority pursuant to the Note if the final
amount advanced under the Loan is less than $6,750,000.


 


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6.             Commencement and
Completion of Construction. Borrower shall commence the Renovations no later
than sixty (60) days after the date hereof, but in no event prior to the
satisfaction of the conditions to commencement of the Renovations set froth in Section 3
hereof, and shall prosecute the construction or rehabilitation with due
diligence and shall complete the Renovations by no later than December 8, 2008 (the “Completion Date”),
in strict compliance with the Plans and applicable rules and regulations
and in a good and workmanlike manner. Should the costs to complete the
Renovations exceed  the remaining Loan
proceeds, Borrower hereby agrees to complete and pay for the remaining
Renovations on or before the Completion Date.


 


7.             Representations,
Warranties and Covenants of Borrower. The Borrower represents and warrants to, and
covenants and agrees with the Authority as of the date of any disbursement
hereunder as follows:


 


(a)             The Borrower is a
corporation formed under the laws of the State of Delaware and is validly
organized, existing and in good standing under said laws and is duly qualified
to do business under the laws of the State of Colorado.


 


(b)             The Borrower has
full power to enter into and perform its obligations under this Agreement, the
Note, and the Loan Documents. The execution and delivery of this Agreement, the
Note, and the Loan Documents and the performance and observance of their terms,
conditions and obligations have been duly authorized by all necessary action on
the part of the Borrower. This Agreement, the Note, and the Loan Documents
constitute, and any other agreement required hereby will constitute, when
executed and delivered by the Borrower, to the Authority, valid and binding
obligations of the Borrower enforceable in accordance with their terms.


 


(c)             The financial
statements of the Borrower delivered to the Authority continue to fairly
represent the financial condition of the Borrower and no material adverse
change has occurred in the conditions reflected therein since its date. No
additional material obligations have been entered into by the Borrower since the date of its financial
statements other than as disclosed to the Authority in writing.


 


(d)             There is no default on the part of the
Borrower under this Agreement or any Loan Document and no event has occurred that with notice or the passage
of time or both would constitute a default hereunder or under any such
document.


 


(e)             The construction of
the Renovations and the proposed use thereof, comply with all applicable
zoning, environmental protection, use and building codes, laws, regulations and
ordinances. The Plans have been approved by all applicable governmental
authorities and/or architectural control committees, and with respect to the
Property and Improvements, Borrower has no knowledge of any violations of any
laws, ordinances, codes, requirements, orders or covenants of any governmental
entity, agency, instrumentality or association having jurisdiction over the
Property.


 


(f)              All utility
services and facilities necessary for the construction of the renovations in
the Improvements and the full enjoyment thereof are available at the boundaries
of the Property. All utility
companies and governmental authorities have agreed to serve the Property with
utility services and facilities, and any required utility taps have been issued
by the appropriate governmental authority and/or utility companies. All roads
necessary for the full utilization of the Property and Improvements for their
intended purposes have been completed and the necessary rights of way therefor
have been dedicated for public use and accepted by the appropriate governmental
authority.


 


(g)             All the necessary
licenses, authorizations, consents, approvals and permits required for the
development of the Property and construction or rehabilitation of the
Improvements thereon have been obtained.


 


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(h)             Borrower shall
expend the Loan proceeds received hereunder solely for the purpose of paying
costs identified in the Budget and shall in no event use the Loan proceeds for
any other purpose.


 


(i)              Borrower shall
correct any defect in the Renovations and Improvements or any deviation from
the Plans not approved by the Authority. The advance of any Loan proceeds shall
not constitute a waiver of the right of the Authority to require compliance
with this covenant with respect to any such defects or deviations from the
Plans not theretofore discovered by the Authority.


 


(j)              The Improvements do
not, and when renovated will not, encroach upon or overhang any easement or
right-of-way, or adjoining land, and are or will be wholly within any building
restriction and/or set back lines.


 


(k)             Borrower shall, at
the completion of the Renovations, provide the Authority with a certification
of actual costs, executed by the Borrower and its Architect.


 


(l)              Borrower shall not
amend the Construction Contract, any principal subcontract, or the contract
with Borrower’s Architect, without the prior written consent of the Authority.


 


(m)            At all times, the
outstanding balance on the Loan shall be no more than eighty-five
percent (85%) of the lesser of the cost of the Property plus the Renovations or the “as
completed” appraised value of the Property, as renovated.


 


8.             Events of Default. The occurrence of
any one or more of the following events or existence of one or more of the
following conditions, with respect to the Borrower, shall constitute an Event
of Default under this Agreement:


 


(a)             There shall occur
an event of default under the terms of the Note, this Agreement, any
other Loan Documents or any other document executed in connection herewith.


 


(b)             If the Borrower at
any time prior to the completion of the Renovations abandons the same or ceases
work thereon for a period of more than twenty (20) days or fails to complete
the construction or rehabilitation of the Improvements strictly in accordance
with the Plans, except as such failure or cessation of work is due to matters
not within the control of the Borrower, or makes material changes in the Plans
without first securing the written approval of the Authority, or otherwise
fails to comply with the terms hereof.


 


(c)             Any representation
or warranty made in writing to the Authority herein or in connection with the
making of the Loan, or any certificate, statement or report made in compliance
with this
Agreement by the Borrower shall prove at any time to have been incorrect in any
material respect when made; or the Borrower shall fail to perform or observe any covenant contained
herein and such failure shall not be cured within thirty (30) days after the
Borrower has been notified of such failure by the Authority.


 


(d)             The Borrower shall
make an assignment for the benefit of creditors, file a petition in bankruptcy,
be adjudicated insolvent or bankrupt or admit in writing the inability to pay
debts as they mature, petition or apply to any tribunal for the appointment of
a receiver or any trustee or similar officer for the Borrower or a substantial
part of the assets of the Borrower, or shall commence any proceeding under any
bankruptcy, reorganization, arrangement, readjustment of debt, dissolution or
liquidation law or statute of any jurisdiction, whether now or hereafter in
effect, or if there shall have been filed any such petition or application, or
any such proceeding shall have been commenced against the Borrower, that
remains undismissed for a period of sixty (60) days or more; or the Borrower by
any act or omission shall indicate its consent to, approval of or acquiescence
in any such petition, application or proceeding, or the appointment of a
receiver of or any trustee or similar officer for the Borrower or any
substantial part of any 


 


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of the properties of the Borrower, or shall suffer
any such receivership or trusteeship to continue undischarged for a period of
sixty (60) days or more; or any judgment, writ, warrant of attachment or
execution or similar process shall be issued or levied against a substantial
part of the property of the Borrower and such judgment, writ or similar process
shall not be released, vacated or fully bonded within sixty (60) days after its
issue or levy.


 


(e)             Any action shall be
taken by any governmental authority that would materially and adversely affect
the use or occupation of the Improvements for their intended purpose and such
action shall not have been reversed or remedied within a period of ten (10) days
from the taking thereof, or such additional time as such governmental authority
may grant to Borrower to secure a reversal or remedy without enforcement of its
initial action.


 


(f)              A lien or other encumbrance (other than as permitted
by the Loan Documents) shall be filed against the Property or Improvements or
any other security for the Loan and the same shall not have been removed or the
Borrower shall not have posted adequate security therefor within ten (10) days
after the filing thereof.


 


(g)           This Agreement or the Note, or any Loan
Document shall at any time for any reason cease to be in full force and effect
or shall be declared to be null and void, or the validity or enforceability
thereof shall be contested by the Borrower, or the Borrower shall deny that it
has any or further liability or obligation hereunder or thereunder.


 


(h)           Borrower shall execute any security agreement
with respect to any materials, fixtures or articles used in the construction of
the Renovations or with respect to any articles of personal property located
therein and secured by the Loan Documents, or such articles secured by the Loan
Documents are purchased pursuant to any conditional sales contract or other
security agreement.


 


(i)            The Authority shall
determine that the estimated cost to complete the construction of the
Renovations is in excess of the amount of funds available to Borrower to
complete and pay for such construction and items, and such deficiency is not
corrected within ten (10) days after notice to Borrower by the deposit with
the Authority of such amounts which when added to the undisbursed Loan funds
shall be
sufficient to enable the completion and payment of the costs of construction of
the Renovations.


 


(j)            The Borrower defaults in the performance of any
term, covenant, or condition to be performed hereunder and such default is not
remedied within twenty (30) days, unless a longer period of time is reasonably
required to cure the default, from and after written notice from the Authority
to the Borrower, specifying said default.


 


9.             Remedies.


 


(a)           Upon
the occurrence of any Event of Default that is not cured as otherwise provided
herein or in the other Loan Documents, and at any time thereafter, the
Authority may, at its option, terminate this Agreement and shall be under no
further obligation to make payments or disbursements hereunder or take any
other action with respect to this Agreement. If the Authority so elects to
terminate this Agreement, it may use and apply any undisbursed Loan proceeds
together with any Borrower’s Balancing Funds, regardless of the purpose for
which such funds were deposited, in such manner and for such purposes as it may
determine. The Loan, with all accrued interest and other amounts payable
hereunder, shall, at the option of the Authority, become immediately due and
payable without presentment, demand, protest or other notice of any kind all of
which are expressly waived by the Borrower. The Authority may proceed with
every remedy available at law or equity or provided for herein or in any
document executed in connection herewith, and all expenses incurred by the
Authority and any assignee of the Authority in connection with any remedy shall
be deemed indebtedness of the Borrower to the Authority or such assignee and a
part of the Secured Obligations (as defined in the Deed of Trust). 


 


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The Authority may apply the proceeds from any
collateral for the Loan or from any other source against any of the Secured
Obligations as and in any order it sees fit.


 


(b)             If the Authority
elects not to terminate this Agreement, it may enter into possession of the
premises and perform any and all work and labor necessary to complete the
Renovations substantially according to the Plans. All sums expended by the
Authority to complete the Renovations shall be deemed to have been paid to the
Borrower and secured by the Deed of Trust. For this purpose, the Borrower
hereby constitutes and appoints the Authority its true and lawful attorney-in-fact,
with full power of substitution in the premises, to complete the construction
or rehabilitation of the Improvements in the name of the Borrower. The Borrower
hereby empowers the Authority as follows: (i) to use any undisbursed Loan
proceeds and Borrowers Balancing Funds, including any balance which may be held
in escrow, for the purpose of completing the Renovations in the manner called
for by the Plans; (ii) to make such additions, changes and corrections in
the Plans as shall be necessary or desirable to complete the Renovations in
substantially the manner contemplated by the Plans; (iii) to employ such
contractors, subcontractors, agents, architects and inspectors as shall be
required for said purposes; (iv) to pay, settle or compromise all existing
bills and claims which may be liens against the mortgaged property, or as may
be necessary or desirable for the completion of the Renovations, or for
clearance of title; (v) to execute all applications and certificates in
the name of the Borrower which may be required by any of the contract
documents; (vi) to prosecute and defend all actions or proceedings in
connection with the mortgaged premises or the Renovations and to take such
action and require such performance as it deems necessary under the accepted
guaranty of completion; and (vii) to do any and every act which the
Borrower might do in its own behalf. It is further understood and agreed that
this power of attorney, which shall be deemed to be a power coupled with an
interest, cannot be revoked. The Borrower hereby assigns and quit claims to the
Authority all Loan proceeds unadvanced under the Note and all Borrower’s
Balancing Funds for use in completing the Renovations, such assignment to
become effective only in case of the Borrower’s uncured default.


 


(c)             No delay or failure
of the Authority in the exercise of any right or remedy provided for hereunder
shall be deemed a waiver of the right by the Authority and no exercise or
partial exercise or waiver of
any right or remedy shall be deemed a waiver of any further exercise of such
right or remedy or of any other right or remedy that the Authority may have.
The enforcement of any rights of the Authority as to any security for the Loan
shall not affect the rights of the Authority to enforce payment of the Loan and to recover judgment for any portion
thereof remaining unpaid. The rights and remedies herein expressed are
cumulative and not exclusive of any right or remedy that the Authority shall
otherwise have.


 


10.           Rights of the
Authority. The Authority may assign, negotiate, pledge or otherwise hypothecate this Agreement, the Note and the
Loan Documents or any of its rights and security hereunder or thereunder, in
whole or in part. In case of such assignment, the Borrower will accord full
recognition thereto and hereby agrees that all rights and remedies of the
Authority in connection with the interests so assigned shall be enforceable
against the Borrower by the assignee thereof.


 


11.           Miscellaneous
Provisions.


 


(a)             Based upon periodic
physical inspections, the documentation for Loan advances, and upon information
supplied by the Contractor,
the Borrower shall monitor progress of construction under the Construction
Contract and under each subcontract and shall make a monthly assessment as to
the possibility that there may be cost overruns in connection with such
contract or subcontracts. The Borrower shall promptly notify the Authority of
any such potential cost overruns.


 


(b)             Borrower shall be
liable to the Authority for all sums paid or incurred in excess of the amount
of the Loan for the completion of the Renovations, whether the same shall be
paid or incurred pursuant to provisions of this Agreement or the other Loan
Documents, or otherwise and for all accrued interest. All payments made or
liabilities incurred in excess of the amount of the Loan by the Authority under
this Agreement or other Loan Documents of any kind whatsoever, including
attorneys’ fees, shall be


 


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paid by Borrower to the Authority upon demand with
interest at the default rate set forth in the Note to the date of payment to
the Authority and all of the foregoing, including interest, shall be deemed and
shall constitute advances under this Agreement.


 


(c)             Any obligation of
the Authority to make advances hereunder is imposed solely and exclusively for
the benefit of Borrower and no other person, firm or corporation shall, under
any circumstances, be deemed to be a beneficiary of such condition, nor shall
it have any derivative claim against the Authority.


 


(d)             Neither this
Agreement nor any provision hereof may be changed, waived, discharged, or terminated
orally and may only be modified or amended by an instrument in writing, signed
by the parties hereto.


 


(e)             Inspections and
approval of the Plans, the Renovations, the Improvements and the workmanship
and materials used therein impose no responsibility or liability of any nature
or kind whatsoever on the Authority to Borrower and/or any third parties. The
parties hereby expressly agree and acknowledge that their relationship is that
of lender and borrower and that no other relationship, including that of joint
venture, partnership or other common enterprise is created by this
Agreement or the other Loan Documents.


 


(f)              All rights, powers,
and remedies herein given to the Authority are cumulative and not alternative,
and are in addition to all other statutes or rules of law. Any forbearance
or delay by the Authority in exercising the same shall not be deemed to be a
waiver thereof and the exercise of any right or partial exercise thereof shall
not preclude the further exercise thereof and the same shall continue in full
force and effect until specifically waived by an instrument in writing executed
by the Authority. All representations, warranties and covenants by Borrower
shall survive the making of the advances of the Loan and the provisions hereof
shall be binding upon Borrower, its successors and assigns and inure to the
benefit of the Authority, its successors and assigns.


 


(g)             During the term of
the Loan, Borrower shall not, without the prior written consent of the
Authority, create or incur or suffer to be created or incurred any encumbrance,
mortgage, pledge, lien or charge of any kind upon the Property or the
Improvements other than encumbrances permitted hereby.


 


(h)             Borrower agrees
that, in the event there is any conflict between the terms and conditions of
this Agreement and the Note and Deed of Trust, the Note and Deed of Trust shall
prevail.


 


(i)              All notices
required under this Agreement shall be in writing and shall be deemed to have
been sufficiently given or served when presented personally or when deposited
in the United States mail, by registered or certified mail, addressed to the
parties at the address set forth in the Deed of Trust. Such addresses may be
changed by notice to the other party given in the same manner as provided in
the Deed of Trust.


 


(j)              This Agreement and
all matters of construction and performance relating thereto shall be governed
by and construed and interpreted in accordance with the laws of the State of
Colorado.


 


(k)             This Agreement may
be executed in several counterparts.


 


(l)              The rights and
obligations of Borrower under this Agreement may not be assigned without the
prior written consent of the Authority.


 


IN WITNESS WHEREOF, the parties hereto have executed
this Agreement as of the date first above written. 


 


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  AUTHORITY:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Colorado Housing and Finance Authority

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Charles L. Borgman

  
	
   

  	
   

  	
   

  	
  Charles L. Borgman, General Counsel

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  BORROWER:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
    Ascent
  Solar Technologies, Inc., a Delaware 
   corporation

  
	
   

  	
   

  	
   

  
	
  ATTEST:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ R. Scott Burrows

  	
   

  	
  By:

  	
  /s/ Matthew B. Foster

  
	
   

  	
  R. Scott Burrows, Secretary

  	
   

  	
   

  	
          Matthew
  B. Foster, President

  
							



 


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EXHIBIT A


 


(Attached to and forming part of a Construction Loan
Agreement dated as of February 8, 2008,
by and between the Colorado Housing and Finance Authority and Ascent Solar Technologies, Inc., a Delaware
corporation.)


 


LEGAL DESCRIPTION


 


Lot 4, Block 7, Washington Square Subdivision
- Amended, County of Adams, State of Colorado.


 


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