JOINDER AGREEMENT
Exhibit
10.1
Sigma
Berliner, LLC, a Delaware Limited Liability Company (the “undersigned”) is
executing and delivering this Joinder Agreement (this “Agreement”) pursuant to
Section 10(h)(2) of that certain Note Purchase Agreement, dated as of December
29, 2006, by and among Berliner Communications, Inc. (“Berliner”) and certain
investors set forth in Schedule A attached thereto (the “Note Purchase
Agreement”). Capitalized terms used but not otherwise defined herein shall have
the meanings ascribed to them in the Note Purchase Agreement.
RECITALS
WHEREAS,
the
undersigned desires to purchase a Note in the principal amount of $1,500,000
and
warrants to purchase 750,000 shares of Common Stock; and
WHEREAS,
the
undersigned desires to enter into this Agreement to become, for all purposes,
a
Buyer and an Investor under the Note Purchase Agreement and to thereby evidence
its intention to agree to be bound by the terms of the Note Purchase Agreement
as if it were an original party thereto.
AGREEMENT
In
consideration of the premises, the agreements herein contained and other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the undersigned agrees as follows:
1. The
undersigned hereby acknowledges, agrees, and confirms that upon execution and
delivery of this Agreement, the undersigned (and any successor in interest
thereto) shall irrevocably become and be deemed to be a “Buyer” and an
“Investor” under the Note Purchase Agreement and shall have all of the
obligations, rights and benefits of a “Buyer” and an “Investor” (as such terms
are defined and used in the Note Purchase Agreement) for all purposes under
the
Note Purchase Agreement. The undersigned shall further be deemed to be a secured
party pursuant to the Security Agreement and a beneficiary under the Guaranty,
and shall have all the obligations, rights and benefits as such under such
agreements.
2. The
undersigned hereby acknowledges, agrees, and confirms that upon execution and
delivery of this Agreement, the undersigned (or any successor in interest
thereto) shall not be entitled to any obligations, rights or benefits expressly
provided to Sigma Opportunity Fund, LLC or its affiliates (“Sigma”), in their
individual capacity, under the Note Purchase Agreement, except that the
undersigned shall be entitled to be reimbursed its reasonable out-of-pocket
expenses directly related to this investment, which shall in no case be more
than $40,000, and Sigma Capital Advisors, LLC shall receive, as an additional
advisory fee, warrants to purchase 25,000 shares Common Stock of Berliner on
the
same terms and conditions as the Sigma Capital Advisors warrant dated December
29, 2006. Berliner and BCI Communications, Inc. acknowledge that the Warrants
and Additional Warrant, as well as the Warrants to be issued pursuant hereto,
were and shall be issued for services.
3. The
undersigned hereby acknowledges, agrees, and confirms that upon execution and
delivery of this Agreement, all representations and warranties made by Berliner
under the Note Purchase Agreement speak as of the date hereof, or such other
date as expressly set forth therein, except to the extent such representations
and warranties have been updated pursuant to a Supplemental Disclosure Schedule
delivered to the undersigned of even date herewith and, to the extent any such
representation or warranty is qualified by reference to a schedule contained
in
the Note Purchase Agreement, such representation or warranty shall be deemed
to
be accurate as of the date hereof to the extent that there has been no material
change in the information reflected on such schedule since the date of the
Note
Purchase Agreement. In addition, the undersigned hereby agrees that the
definition of SEC Reports in the Note Purchase Agreement is hereby amended
to
include the Company’s Quarterly Report on Form 10-Q for the quarter ended
December 31, 2006 and the Current Reports on Form 8-K dated December 29, 2006
and February 2, 2007.
4. The
undersigned hereby acknowledges, agrees, and confirms that upon execution and
delivery of this Agreement, all representations and warranties made by the
undersigned as a “Buyer” under the Note Purchase Agreement speak as of the date
of execution of this Agreement.
5. The
undersigned represents and warrants that it has fully reviewed and understands
the Note Purchase Agreement.
6. (a)
The
undersigned hereby irrevocably designates Sigma Opportunity Fund, LLC as
collateral agent (the “Collateral Agent”) for the ratable benefit of the holders
of the Notes and Other Notes, with full authority in the place and stead of
the
undersigned and in the name of the undersigned, from time to time in the
Collateral Agent’s discretion, to take any action and to execute any instrument
which the Collateral Agent may deem necessary or advisable or required by
applicable law to perfect and protect the security interest granted by the
Security Agreement or to enable the undersigned to exercise and enforce its
rights and remedies under the Security Agreement with respect to any of the
collateral thereunder. Without limiting the generality of the foregoing, the
Collateral Agent may execute and file such financing or continuation statements,
or amendments thereto, and such other instruments or notices as may be necessary
or advisable or required by applicable law or that the Collateral Agent may
reasonably request to protect and preserve the security interests granted by
the
Security Agreement, without the signature of the undersigned. The Collateral
Agent may perform any of its duties hereunder by and through its agents or
employees. The undersigned authorizes the Collateral Agent to execute on its
behalf any intercreditor agreement the Collateral Agent enters into with any
senior lender permitted pursuant to the terms of the Note Purchase Agreement
or
the Note.
(b) The
undersigned shall not have the right to cause the Collateral Agent to take
any
action with respect to the collateral, with only the holders of a majority
interest of the Notes (the “Majority Holders”) having the right to direct the
Collateral Agent to take any such action. If the Collateral Agent shall request
instructions from the Majority Holders with respect to any act or action
(including failure to act), the Collateral Agent shall be entitled to refrain
from such act or taking such action unless and until it shall have received
instructions from the Majority Holders, and to the extent requested, appropriate
indemnification in respect of actions to be taken by the Collateral Agent;
and
the Collateral Agent shall not incur liability to any Person by reason of so
refraining. Without limiting the foregoing, the undersigned shall not have
any
right of action whatsoever against the Collateral Agent as a result of the
Collateral Agent acting or refraining from acting hereunder in accordance with
the instructions of the Majority Holders or as otherwise specifically provided
in the Agreement.
(c) The
Collateral Agent shall have no duties or responsibilities except those expressly
set forth in this Agreement. Neither the Collateral Agent nor any of its
members, managers, employees or agents shall be liable for any action taken
or
omitted by it or them as such pursuant to this Agreement or in connection
herewith, unless caused by its or their gross negligence or willful misconduct.
The duties of the Collateral Agent shall be mechanical and administrative in
nature and the Collateral Agent shall not have a fiduciary relationship in
respect of the undersigned. Nothing in this Agreement, expressed or implied,
shall be construed as to impose upon the Collateral Agent any obligation except
as expressly set forth herein. Neither the Collateral Agent nor any of its
members, managers, employees or agents shall be liable for any act it or they
may do or omit to do while acting in good faith and in the exercise of its
or
their own best judgment. The Collateral Agent shall have the right at any time
to consult with counsel on any question arising pursuant hereto and any act
taken or omitted to be taken in reliance upon advice of counsel shall
conclusively be deemed to have been done or omitted in good faith. The
Collateral Agent shall incur no liability for any delay reasonably required
to
obtain the advice of counsel.
(d) The
authority granted hereunder to the Collateral Agent shall continue and remain
in
full force and effect so long as the Senior Subordinated Secured Convertible
Promissory Note issued by Berliner to the undersigned is outstanding and
unpaid.
7.
The
undersigned further agrees to execute any and all additional documents,
instruments or certificates, including, without limitation, a counterpart
signature page to the Note Purchase Agreement, that Berliner may reasonably
request be executed in order for the undersigned to become a party to the Note
Purchase Agreement.
8. This
Agreement may be signed and delivered by facsimile signature and in any number
of counterparts, each of which shall be deemed an original, but all of which
together shall constitute one instrument.
9. This
Agreement shall be governed by, and construed and interpreted in accordance
with, the laws of the State of New York, without regard to the principles of
conflicts of laws thereof.
[Signature
Page Follows]
IN
WITNESS WHEREOF,
the
undersigned has caused this Joinder Agreement to be executed as of the 15th
day
of February, 2007.
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SIGMA
BERLINER, LLC, a Delaware Limited
Liability
Company
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Name:
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Title:
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| Agreed as to Section 6 | |||
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SIGMA
OPPORTUNITY FUND, LLC
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By:
Sigma Capital Advisors, managing member
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By:
/s/
XXXX
XXXX
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Xxxx
Xxxx
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Manager
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ACKNOWLEDGED
AND AGREED:
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BERLINER
COMMUNICATIONS, INC.
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By:
/s/ XXXX
XXXXXXXX
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Name:
Xxxx Xxxxxxxx
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Title:
Chief Executive Officer
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BCI
COMMUNICATIONS, INC.
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By:
/s/ XXXX
XXXXXXXX
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Name:
Xxxx Xxxxxxxx
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Title:
Chief Executive Officer
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