CERTIFICATES, INSTRUMENTS AND
DOCUMENTS, AS THE OTHER PARTY MAY REASONABLY REQUEST IN ORDER TO CARRY OUT THE
INTENT AND ACCOMPLISH THE PURPOSES OF THIS AGREEMENT AND THE CONSUMMATION OF THE
TRANSACTIONS CONTEMPLATED HEREBY.
10.11
NO STRICT CONSTRUCTION.
THE LANGUAGE USED IN THIS
AGREEMENT WILL BE DEEMED TO BE THE LANGUAGE CHOSEN BY THE PARTIES TO EXPRESS
THEIR MUTUAL INTENT, AND NO RULES OF STRICT CONSTRUCTION WILL BE APPLIED AGAINST
ANY PARTY.
10.12
RIGHTS CUMULATIVE.
EACH AND ALL OF THE VARIOUS
RIGHTS, POWERS AND REMEDIES OF THE PARTIES SHALL BE CONSIDERED CUMULATIVE WITH
AND IN ADDITION TO ANY OTHER RIGHTS, POWERS AND REMEDIES WHICH OR THE
TRANSACTION DOCUMENTS SUCH PARTIES MAY HAVE AT LAW OR IN EQUITY IN THE EVENT OF
THE BREACH OF ANY OF THE TERMS OF THIS AGREEMENT.
THE EXERCISE OR PARTIAL
EXERCISE OF ANY RIGHT, POWER OR REMEDY SHALL NEITHER CONSTITUTE THE EXCLUSIVE
ELECTION THEREOF NOR THE WAIVER OF ANY OTHER RIGHT, POWER OR REMEDY AVAILABLE TO
SUCH PARTY.
10.13
SURVIVAL.
ANY COVENANT OR AGREEMENT IN THIS AGREEMENT
REQUIRED TO BE PERFORMED FOLLOWING THE CLOSING DATE, SHALL SURVIVE THE CLOSING
DATE. WITHOUT LIMITATION OF THE FOREGOING, THE RESPECTIVE REPRESENTATIONS AND
WARRANTIES GIVEN BY THE PARTIES HERETO SHALL SURVIVE THE CLOSING DATE AND THE
CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED HEREIN, BUT ONLY FOR A PERIOD OF
THE EARLIER OF (I) THREE (3) YEARS FOLLOWING THE CLOSING DATE AND (II) THE
APPLICABLE STATUTE OF LIMITATIONS WITH RESPECT TO EACH REPRESENTATION AND
WARRANTY, AND THEREAFTER SHALL EXPIRE AND HAVE NO FURTHER FORCE AND EFFECT..
10.14
KNOWLEDGE.
THE TERM "KNOWLEDGE OF THE COMPANY" OR ANY
SIMILAR FORMULATION OF KNOWLEDGE SHALL MEAN, THE ACTUAL KNOWLEDGE AFTER DUE
INQUIRY OF AN EXECUTIVE OFFICER OF THE COMPANY.
10.15
ASSIGNMENT TO T25.
BY EXECUTION OF THIS AGREEMENT,
EACH OF THE UNDERSIGNED HEREBY CONFIRMS ITS AGREEMENT THAT TCP SHALL NOT BE
ENTITLED TO THE RIGHTS AND PRIVILEGES AND SHALL NOT BE BOUND BY THE OBLIGATIONS
OF A "BUYER," OR OTHERWISE, UNDER THIS AGREEMENT AND TCP DOES HEREBY ASSIGN TO
T25 ANY AND ALL OF ITS RIGHTS AND OBLIGATIONS UNDER THE ORIGINAL AGREEMENT AND
T25 DOES HEREBY ASSUME AND AGREES TO DISCHARGE ANY AND ALL OF TCP'S OBLIGATIONS
UNDER ORIGINAL AGREEMENT.
19
IN WITNESS WHEREOF, the undersigned have caused this Agreement
to be duly executed as of the date first above written.
COMPANY:
TOWER TECH HOLDINGS INC.
By:
/s/ Steven A. Huntington
Name:
Steven A. Huntington
Title:
CFO
TCP:
TONTINE CAPITAL PARTNERS, L.P.
By:
Tontine Capital Management, L.L.C, its general partner
By:
/s/ Jeffrey L. Gendell
Jeffrey L. Gendell, as managing member
BUYERS:
TONTINE 25 OVERSEAS MASTER FUND, L.P.
By:
Tontine Capital Management, L.L.C, its general partner
By:
/s/ Jeffrey L. Gendell
Jeffrey L. Gendell, as managing member
TONTINE PARTNERS, L.P.
By:
Tontine Management, L.L.C., its general partner
By:
/s/ Jeffrey L. Gendell
Jeffrey L. Gendell, as managing member
S-1
SCHEDULE 1
NAME
JURISDICTION OF ORGANIZATION AND
FORM OF ENTITY
NUMBER OF
SHARES
PURCHASE
PRICE
Tontine Partners, L.P.
Delaware Limited Partnership
1,531,250
$
12,985,000
Tontine