SUBORDINATION AND INTERCREDITOR AGREEMENT
This
Agreement, dated as of July, 17,
2007 is
made by and among BHC
INTERIM FUNDING II, L.P.,
a
Delaware limited partnership, with an office at 000 Xxxxxxx Xxxxxx,
00xx
Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000 (the “Subordinated
Creditor”),
XXXXX
FARGO BANK, NATIONAL ASSOCIATION
(with
its participants, successors and assigns, the “Lender”),
acting through its Xxxxx Fargo Business Credit operating
division, with an office located at 000 Xxxx 00xx
Xxxxxx,
00xx
Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000, AIRGATE
INTERNATIONAL CORPORATION,
a New
York corporation (“Airgate
NY”
or
“BHC
Borrower”),
AIRGATE
INTERNATIONAL CORPORATION (CHICAGO),
an
Illinois corporation (“Airgate
Chicago”),
PARADIGM
INTERNATIONAL, INC.,
a
Florida corporation (“Paradigm”)
(Airgate NY, Airgate Chicago and Paradigm are individually a “Borrower”
and
collectively and individually the “Borrowers”),
all
with an address of 000-00 Xxxxxxxx Xxxxxxxxx, Xxxxxxx, Xxx Xxxx 00000, and
PACIFIC
CMA, INCORPORATED,
a
Delaware corporation (“Pacific
CMA”),
and
PACIFIC
CMA INTERNATIONAL, LLC, a
Colorado limited liability company (“Pacific
International”),
each
with an address of 000-00 Xxxxxxxx Xxxxxxxxx, Xxxxxxx, Xxx Xxxx 00000
(Borrowers, Pacific CMA and Pacific International are sometimes collectively
and
individually referred to as the “Obligors”).
Borrowers
now are or hereafter may be indebted to the Lender on account of loans or other
extensions of credit or financial accommodations from the Lender to the
Borrowers and will secure their indebtedness by granting a lien in favor of
the
Lender on the personal property and assets described in the Senior Credit
Agreement (as such term is defined below).
In
addition, Pacific CMA, Pacific International and Xxxxxx Xxx (the “Individual
Guarantor”)
have
each guarantied the indebtedness of the Borrowers to the Lender and Pacific
CMA
and Pacific International have secured their guarantees by granting liens in
favor of the Lender on personal property and assets described in the Pacific
CMA
Pledge Agreement and the Pacific CMA Security Agreement (as such terms are
defined below) (collectively, the “Guarantor
Collateral”).
The
BHC
Borrower now is or hereafter may also be indebted to the Subordinated Creditor
(the “Subordinated
Indebtedness”)
and
the Guarantors (as defined in the “Subordinated
Credit Agreement”,
hereinafter defined) will guaranty the BHC Borrower’s obligations to repay the
Subordinated Indebtedness. The BHC Borrower and Guarantors will
secure their obligations to repay the Subordinated Indebtedness by granting
liens on certain personal property and assets.
As
a
condition to considering the continued extension of credit to the Borrowers,
the
Lender has required the execution and delivery of this Agreement by the
Subordinated Creditor.
ACCORDINGLY,
for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, and to induce the Lender from time to time in its
discretion to extend credit to the Borrowers, the Guarantors, the Lender and
the
Subordinated Creditor hereby agree as follows:
1. Definitions.
As used
herein, the following terms shall have the meanings assigned to
them:
“Collateral”
means
(a) the “Collateral” as such term is defined in the Senior Credit Agreement,
including without limitation, all present and future property of the Borrowers
wherever located and however described and whether or not constituting a
fixture, and, for the avoidance of doubt, includes all of Airgate NY’s equity
interest in Airgate (Chicago) and (b) the Guarantor Collateral; together, in
each case, with all proceeds thereof.
“Distribution”
means,
with respect to any indebtedness, obligation or security (a) any payment or
distribution of cash, securities or other property, by set-off or otherwise,
on
account of such indebtedness, obligation or security, (b) any redemption,
purchase or other acquisition of such indebtedness, obligation or security,
or
(c) the granting of any lien or security interest to or for the benefit of
the
holders of such indebtedness, obligation or security in or upon any property
or
interests in property.
“Obligations”
means
each and every debt, liability and obligation of every type and description
which the Borrowers and the Guarantors may now or at any time hereafter owe
to
the Lender, whether such debt, liability or obligation now exists or is
hereafter created or incurred and whether it is or may be direct or indirect,
due or to become due, or absolute or contingent.
“Pacific
CMA Pledge Agreement”
means
those separate Collateral Pledge Agreements dated April 6, 2007 by Pacific
CMA
and Pacific International in favor of Lender, as the same may be modified,
amended, supplemented or restated from time to time.
“Pacific
CMA Security Agreement”
means
those separate Security Agreements dated April 6, 2007 by Pacific CMA and
Pacific International in favor of Lender, as the same may be modified, amended,
supplemented or restated from time to time.
“Payment
in Full”
or
“Paid
in Full”
means
that (a) the Obligations have been paid and satisfied in full in cash, and
(b)
any commitment of the Lender to extend any financial accommodations to the
Borrowers has been terminated.
“Senior
Credit Agreement”
means
that certain Credit and Security Agreement dated April 6, 2007 by and between
Borrowers and Lender, as the same may be modified, amended, supplemented or
restated from time to time.
“Senior
Debt”
means
the principal amount of $10,000,000 plus all interest, fees, costs, enforcement
expenses (including legal fees and disbursements), premium, liabilities,
collateral protection expenses and other reimbursement or indemnity obligations,
all as created or evidenced by the Senior Loan Documents.
2
“Senior
Default”
means
the occurrence of any one or more of the following: (a) a Senior Payment
Default;
(b)
breach by Borrowers of any of the Financial Covenants contained in the Senior
Credit Agreement; (c) the occurrence of an event described in Section 7.1(f)
of
the Senior Credit Agreement; or (d) the occurrence of an event described in
Section 7.1(g) of the Senior Credit Agreement.
“Senior
Loan Documents”
means
the “Loan Documents”, as such term is defined in the Senior Credit
Agreement.
“Senior
Payment Default”
means
default in the payment of any of the Obligations when they become due and
payable.
“Subordinated
Credit Agreement”
means
that certain Loan and Security Agreement dated as of July 17,
2007
by and among BHC Borrower, the Guarantors and Junior Creditor.
2. Subordination.
The
Subordinated Creditor hereby agrees that (regardless of any priority otherwise
available to the Subordinated Creditor by law or by agreement) any security
interest, lien, pledge or encumbrance which the Subordinated Creditor may now
hold or may at any time hereafter acquire in any or all of the Collateral is,
shall be and shall remain fully subordinate to any security interest, lien,
pledge or encumbrance that the Lender may now or hereafter hold in the
Collateral. The Subordinated Creditor shall cause each Subordinated Loan
Document that now or hereafter evidences all or a portion of the Subordinated
Indebtedness to be conspicuously marked as follows:
“This
[agreement] [instrument] is subject to the terms of a Subordination and
Intercreditor Agreement (the “Intercreditor Agreement”) dated as of July
17,
2007
by and among BHC Interim Funding II, L.P. (“BHC”), Xxxxx Fargo Bank, National
Association (“Xxxxx Fargo”), acting through its Xxxxx Fargo Business Credit
operating division, the Borrowers (as defined in the Intercreditor Agreement)
and the Guarantors, which Intercreditor Agreement is incorporated herein by
reference. Notwithstanding any statement to the contrary in this [agreement]
[instrument], (i) no payment on account of principal, interest, fees or other
amounts shall become due or be paid except in accordance with the terms of
the
Intercreditor Agreement, and (ii) any security interest, lien, pledge or
encumbrance granted to BHC shall be subordinate to the security interest, lien,
pledge or encumbrance granted to Xxxxx Fargo and shall be enforceable only
in
accordance with the terms of the Intercreditor Agreement.”
3. Permitted
Distributions; Prohibition on Distributions in Certain Instances.
(a) The
Subordinated Indebtedness and any and all documents, instruments, writings
and
agreements related thereto (all such documents, instruments, writings and
agreements collectively and individually referred to as the “Subordinated
Loan Documents”),
shall
be and hereby are subordinated and the payment thereof is deferred until Payment
in Full of the Senior Debt. Notwithstanding the immediately preceding sentence,
but subject to paragraph 3(b) hereof, the BHC Borrower shall be permitted to
make, and the Subordinated Creditor shall be permitted to receive, regularly
scheduled payments of interest, fees and reimbursement of expenses (but no
payments of principal) as required pursuant to the Subordinated Loan Documents,
so long as any such payments shall not result in the occurrence of a Senior
Default.
3
(b) Upon
the
occurrence and during the continuance of any Senior Default, upon receipt by
Subordinated Creditor of written notice of such Senior Default given by Lender
to the Borrowers and the Subordinated Creditor (the “Senior
Default Blockage Notice”),
then
no Distributions due or to become due on the Subordinated Indebtedness shall
be
paid by the Borrowers, and no payment on account thereof shall be received,
accepted or retained by the Subordinated Creditor for a period (each, a
“Senior
Default Blockage Period”)
commencing on the date of receipt by Subordinated Creditor of such Senior
Default Blockage Notice and terminating on the earliest to occur of the
following dates: (i) 150 days after Subordinated Creditor’s receipt of such
Senior Default Blockage Notice (provided, however, that if the Obligations
of
the Borrowers to the Lender are accelerated then any applicable Senior Default
Blockage Period shall continue until the Lender rescinds such acceleration
in
writing or the Senior Debt is Paid in Full), (ii) the date on which such Senior
Default is cured or waived or shall cease to exist (Lender hereby agrees that
it
will promptly notify Subordinated Creditor of any such cure, waiver or
cessation), (iii) the date on which the Senior Debt shall have been Paid in
Full, or (iv) the date on which the Senior Default Blockage Period shall have
been terminated by written notice to the Borrowers and the Subordinated Creditor
from the Lender. After the expiration of the applicable Senior Default Blockage
Period, the BHC Borrower may resume making payments to the Subordinated Creditor
to the extent permitted pursuant to this Agreement, including amounts not paid
during the Senior Default Blockage Period due to the foregoing prohibitions,
so
long as any such payments will not result in the occurrence of a Senior Default.
Notwithstanding any other provision of this Agreement, only one Senior Default
Blockage Period triggered by a Senior Default that is not a Senior Payment
Default may be commenced within any period of 365 consecutive days. There shall
be no limit to the number of Senior Default Blockage Periods triggered by a
Senior Payment Default.
(c) If
the
Subordinated Creditor receives any Distribution on account of the Collateral
in
violation of this Agreement, the Subordinated Creditor will hold the amount
so
received in trust for the Lender and will forthwith turn over such Distribution
to the Lender in the form received (except for the endorsement of the
Subordinated Creditor where necessary) for application to the Obligations
(whether or not due), in such order of application as the Lender may deem
appropriate. If the Subordinated Creditor fails to make any endorsement required
under this Agreement, the Lender, or any of its officers or employees or agents
on behalf of the Lender, is hereby irrevocably appointed (which appointment
is
coupled with an interest) as the attorney-in-fact for the Subordinated Creditor
(with the right but not the duty) to make such endorsement in the Subordinated
Creditor’s name.
4. Waiver
and Consent; Bankruptcy.
(a)
The
Lender shall have no obligation to the Subordinated Creditor with respect to
the
Collateral or the Obligations. The Lender may (i) exercise collection rights,
(ii) take possession of, sell or dispose of, and otherwise deal with, the
Collateral, (iii) in the Lender’s name, the Subordinated Creditor’s name or in
Borrowers’ name, demand, xxx for, collect or receive any money or property at
any time payable or receivable on account of, or securing, any right to payment,
or grant any extension to, make any compromise or settlement with or otherwise
agree to waive, modify, amend or change the obligations (including collateral
obligations) of any account debtor or other obligor of the Borrowers; (iv)
prosecute, settle and receive proceeds on any insurance claims relating to
the
Collateral, and (v) exercise and enforce any right or remedy available to the
Lender with respect to the Collateral, whether available before or after the
occurrence of any default; all without notice to or consent by anyone except
as
specifically required by law. To the extent it is legally permitted to do so,
the Lender shall apply the proceeds of the Collateral against the Senior Debt
in
any order of application it deems appropriate, and to the extent there is any
excess remaining after such application, then to the Subordinated Creditor
for
payment of the Subordinated Indebtedness, or to any other party legally entitled
to such proceeds. The Subordinated Creditor hereby waives any and all right
to
require the marshalling of assets in connection with the exercise of any of
the
remedies permitted by applicable law or agreement.
4
(b) In
the
event that the Borrowers make an assignment for the benefit of creditors, or
any
proceedings are commenced by or against the Borrowers under any bankruptcy,
reorganization, readjustment of debt, arrangement, dissolution, receivership,
liquidation or insolvency law or statute now or hereafter in effect, any
Distribution, whether in cash, securities or other property, that would
otherwise, but for the terms hereof, be payable or deliverable in respect of
the
Subordinated Indebtedness shall be paid or delivered directly to the Lender
(to
be held and/or applied in accordance with the terms of the Obligations) until
the Obligations are paid in full. The Subordinated Creditor irrevocably
authorizes, empowers and directs any debtor, debtor-in-possession, receiver,
trustee, liquidator, custodian, conservator or other person having authority,
to
pay or otherwise deliver all such Distributions to the Lender. Furthermore,
in
any such event and at any time thereafter, the Subordinated Creditor shall,
upon
the written request of the Lender, prove, enforce, and endeavor to obtain
payment of the Subordinated Indebtedness at the time existing, and will turn
over to the Lender in precisely the form received any Distribution which shall
be payable upon or with respect to the Subordinated Indebtedness for application
to the payment of the Obligations at the time existing. In the event that the
Subordinated Creditor shall fail to take the action requested by the Lender,
the
Lender may, as attorney-in-fact for the Subordinated Creditor, take such action
on behalf of the Subordinated Creditor, but for the use and benefit of the
Lender, and the Subordinated Creditor hereby appoints the Lender as
attorney-in-fact for the Subordinated Creditor to demand, xxx for, collect
and
receive every Distribution and give acquittance therefor and to file claims
and
proofs of claim with respect of the Subordinated Indebtedness and to take such
other action in the Lender's own name or in the name of the Subordinated
Creditor or otherwise and to vote, give consent and take any other steps with
regard thereto, all as the Lender may deem necessary or advisable for the
enforcement of this Agreement (provided, however, the Lender shall have no
obligation to execute, verify, deliver and/or file any such claim or proof
of
claim or to vote any such claim and the Subordinated Creditor shall not be
entitled to change or withdraw any such vote made by the Lender); and the
Subordinated Creditor shall execute and deliver to the Lender such other and
further powers of attorney, assignments or other instruments as may be requested
by the Lender in order to enable the Lender or its officers as sub-agents to
enforce any and all claims upon or with respect to the Subordinated Indebtedness
at the time existing and to collect and receive any and all Distributions which
may be payable or deliverable at any time upon or with respect to the
Subordinated Indebtedness.
5
(c) If
the
Borrowers or the Borrowers’ estate become the subject of proceedings under Title
11 of the United States Code (11 U.S.C. § 101 et seq.),
as
amended, (the “Bankruptcy
Code”),
and
if the Lender desires to permit the use of cash collateral or to provide
financing to the Borrowers under either Section 363 or Section 364 of the
Bankruptcy Code, the Subordinated Creditor agrees that adequate notice of such
financing to the Subordinated Creditor shall have been provided if the
Subordinated Creditor receives written notice in accordance with the Bankruptcy
Code. The Subordinated Creditor waives any claim it may now or hereafter have
arising out of the Lender’s election, in any proceeding instituted under Chapter
11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of the
Bankruptcy Code, and/or any borrowing or a security interest under Section
364
of the Bankruptcy Code by the Borrowers, as debtors-in-possession. To the extent
that the Lender receives payments on, or proceeds of collateral for, the
Obligations which are subsequently invalidated, declared to be fraudulent or
preferential, set aside and/or required to be repaid to a trustee, receiver
or
any other party under any bankruptcy law, state or federal law, common law,
or
equitable cause, then, to the extent of such payment or proceeds received,
the
Obligations, or part thereof, intended to be satisfied shall be, revived and
continue in full force and effect as if such payments or proceeds had not been
received by the Lender.
5. No
Action.
(a) The
Subordinated Creditor will not commence any action or proceeding with respect
to
the Collateral or against the Borrowers or Guarantors, will not take possession
of, sell or dispose of, or otherwise deal with, the Collateral, and will not
exercise or enforce any other right or remedy (each, an “Action”)
which
may be available to the Subordinated Creditor against the Borrowers or the
Guarantors or with respect to the Collateral during the period commencing on
the
date of receipt by Lender of written notice from the Subordinated Creditor
of
the occurrence of a default or event of default under the Subordinated Loan
Documents (hereinafter a “Subordinated
Indebtedness Default Notice”)
and
ending on the earliest to occur of the following dates (the “Standstill
Period”):
(i)
150 days after receipt by Lender of the Subordinated Indebtedness Default
Notice, (ii) such time as the Lender consents in writing to the termination
of
the Standstill Period, (iii) the date on which the Senior Debt shall have been
Paid in Full, (iv) the date on which any filing by or against the Borrowers
of
any petition under the federal Bankruptcy Code or any other bankruptcy,
insolvency or reorganization act shall have been made, and in such case, the
Standstill Period as it relates to Actions against the Borrowers only shall
end
(that is, any such filing by or against Borrowers shall not end the Standstill
Period as it relates to Actions against any Guarantor), or (v) the date on
which
any filing by or against a Guarantor of any petition under the federal
Bankruptcy Code or any other bankruptcy, insolvency or reorganization act shall
have been made, and in such case, the Standstill Period as it relates to Actions
against such Guarantor only shall end (that is, any such filing by or against
such Guarantor shall not end the Standstill Period as it relates to Actions
against the Borrowers or any other Guarantor), provided, however, and
notwithstanding the foregoing, the Standstill Period shall continue in place
while a Senior Default Blockage Period is in effect. Notwithstanding any other
provision of this Agreement, only one Standstill Period triggered by a Senior
Default that is not a Senior Payment Default (as defined below) may be commenced
within any period of 365 consecutive days. There shall be no limit to the number
of Standstill Periods triggered by a Senior Payment Default.
6
(b) In
addition, and without limiting the generality of the foregoing, if the Borrowers
or any Guarantor is in default under any credit agreement in favor of the Lender
and the Borrowers or any Guarantor intends to sell any Collateral to an
unrelated third party outside the ordinary course of business, the Subordinated
Creditor shall, upon the Lender’s request, and without further consideration,
execute and deliver to such purchaser such instruments as may reasonably be
necessary to terminate and release any security interest or lien the
Subordinated Creditor has in the Collateral to be sold, with the proceeds of
any
such sale to be applied as provided in paragraph 4(a) above. If the Subordinated
Creditor fails, within five (5) days of such request, to comply with any such
request from the Lender, the Lender is authorized to execute and deliver such
instruments, on behalf of the Subordinated Creditor, as may be necessary to
terminate and release any such security interest or lien.
(c) Until
the
Obligations are Paid in Full, the Subordinated Creditor shall not sell, assign,
pledge, dispose of or otherwise transfer all or any portion of the Subordinated
Indebtedness or any document related thereto (i) without giving prior written
notice of such action to the Lender and (ii) unless, prior to the consummation
of any such action, the transferee thereof shall execute and deliver to the
Lender a joinder to this Agreement or an agreement substantially identical
to
this Agreement that provides for the continued subordination of the Subordinated
Indebtedness as provided herein and for the continued effectiveness of all
of
the rights of the Lender arising under this Agreement.
6. No
Representations or Warranties; No Duty to Preserve or Protect Collateral; Agent
for Perfection.
(a) Neither
the Subordinated Creditor nor the Lender (i) makes any representation or
warranty concerning the Collateral or the validity, perfection or (except as
to
the subordination effected hereby) priority of any security interest therein,
or
(ii) shall have any duty to preserve, protect, care for, insure, take possession
of, collect, dispose of or otherwise realize upon any of the Collateral except
as otherwise provided in paragraph 6(b) hereof.
(b) The
Lender and the Subordinated Creditor each agree to hold any and all Collateral
consisting of a “certificated security” or “investment property” (as such terms
are defined in the Uniform Commercial Code in effect in the State of New York)
which may be perfected by possession or control (the “Control
Collateral”)
in
their respective possession, custody, or control (or in the possession, custody,
or control of agents or bailees for either) as agent for the other solely for
the purpose of perfecting the security interest and lien granted to each in
such
Control Collateral subject to the terms and conditions of this paragraph 6(b).
Neither the Lender nor the Subordinated Creditor shall have any obligation
whatsoever to the other to assure that the Control Collateral is genuine or
owned by the pledgor thereof or to preserve their respective rights or benefits
or those of any person, firm, corporation or other entity. The duties or
responsibilities of the Lender and the Subordinated Creditor under this
paragraph 6(b) are and shall be limited solely to holding or maintaining control
of the Control Collateral as agent for the other for purposes of perfecting
the
security interest and lien held by the Lender or the Subordinated Creditor,
as
applicable. Neither the Lender nor the Subordinated Creditor is nor shall be
deemed to be a fiduciary of any kind for any other party to this Agreement
as a
result of the provisions of this paragraph 6(b), nor shall the Lender or the
Subordinated Creditor have any duties or obligations to the other with respect
to such Control Collateral (other than (i) the obligation of the Subordinated
Creditor to turn over to the Lender any Control Collateral that is in the
Subordinated Creditor's possession or control prior to the Payment in Full
of
all Senior Debt, which Subordinated Creditor hereby agrees to do, and (ii)
the
obligation of the Lender to turn over to the Subordinated Creditor any Control
Collateral that is in the Lender’s possession or control upon the Payment in
Full of all Senior Debt, which Lender hereby agrees to do).
7
7. Termination
of Subordination.
This
Agreement shall continue in full force and effect, and the obligations and
agreements of the Subordinated Creditor and the Borrowers hereunder shall
continue to be fully operative, until all of the Senior Debt shall have been
Paid in Full. Lender agrees that the Senior Debt will not provide for the
automatic renewal of the term thereof. Upon the Payment in Full of all of the
Senior Debt, this Agreement will automatically terminate without any additional
action by any party hereto. If at any time any payment made or value received
with respect to any Senior Debt is rescinded or must otherwise be returned
by
the Lender upon the insolvency, bankruptcy or reorganization of the Borrowers
or
any Guarantor, or otherwise, all as though such payment had not been made or
value received, then to the extent necessary to repay in full, in cash, the
Senior Debt, the Subordinated Creditor will, following written notice from
Lender, deliver to Lender any amounts previously received and then held by
the
Subordinated Creditor on account of, or in any way relating to, the Collateral
(a) which the Subordinated Creditor would not have been entitled to accept
and
retain had this Agreement been in effect at the time such payments were received
by Subordinated Creditor and (b) to the extent any such payments received by
the
Subordinated Creditor are not otherwise rescinded or must not otherwise be
returned by the Subordinated Creditor upon the insolvency, bankruptcy or
reorganization of the Borrowers or any Guarantor, or otherwise. Further, to
the
extent previously terminated, the security interest and lien in the Collateral
created by the Senior Loan Documents, in favor of Lender, and the rights of
Lender under this Agreement shall be reinstated.
9. Option
to Purchase Obligations.
The
Subordinated Creditor shall have the option, but no obligation, to purchase
the
Obligations of the Borrowers owing to the Lender (and all liens and security
interests securing the payment thereof), by paying the Lender an amount equal
to
the outstanding balance of the Senior Debt, plus all prepayment premiums and
fees, if any, that are or would be due and payable under the Senior Loan
Documents as a result of any prepayment or early termination of the Obligations,
within fifteen (15) days of receipt of any Senior Default Blockage Notice.
Upon
the exercise of such option by the Subordinated Creditor, the Lender shall
assign all of its right, title and interest in and to the Senior Loan Documents
to the Subordinated Creditor, without recourse or warranty, whereupon the Lender
shall be relieved of any further obligation with respect to the Senior Loan
Documents.
10. Binding
Effect; Miscellaneous.
This
Agreement shall be binding upon and inure to the benefit of the Subordinated
Creditor, the Lender, and their respective participants, successors and assigns,
but neither the Borrowers, the Guarantors nor any other party shall be entitled
to rely on or enforce this Agreement. The Subordinated Creditor and Lender
each
warrant to the other that any purchaser or transferee of, or successor to,
any
security interest of the undersigned in any or all of the Collateral will be
given written notice of the subordination effected hereby, before such purchase,
transfer or succession, and that any such purchaser, transferee or successor
will be in all respects subject to and bound by this Agreement. This Agreement
cannot be waived or changed or ended, except by a writing signed by the party
to
be bound thereby. This Agreement shall be governed by and construed in
accordance with the substantive laws (other than conflict laws) of the State
of
New York. Each party consents to the personal jurisdiction of the state and
federal courts located in the State of New York in connection with any
controversy related to this Agreement, waives any argument that venue in any
such forum is not convenient, and agrees that any litigation initiated by either
of them in connection with this Agreement shall be venued in either the state
and federal courts located in New York County, New York.
8
Nothing
in this Agreement shall prohibit Subordinated Creditor from accepting and
retaining or from exercising its rights with respect to the proceeds of keyman
life insurance policies maintained by the Borrower on the life of Xxxxxx Xxx,
which proceeds will be assigned to Subordinated Creditor as additional
collateral for the Subordinated Indebtedness.
This
Agreement may be executed in any number of counterparts, each of which shall
be
an original, but all of which together shall constitute one instrument. The
Subordinated Creditor waives notice of the Lender’s acceptance hereof.
THE
PARTIES WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING BASED
ON OR
PERTAINING TO THIS AGREEMENT.
REMAINDER
OF THIS PAGE INTENTIONALLY LEFT BLANK
9
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date
written above.
|
BHC
INTERIM FUNDING II, L.P.
|
||
|
By:
|
BHC
Interim Funding Management, L.L.C.,
|
|
|
|
its
General Partner
|
|
|
By:
|
BHC
Investors II, L.L.C.,
|
|
|
its
Managing Member
|
||
|
By:
|
GHH
Holdings, L.L.C.
|
|
| COMPANY NAME CORPORATION | ||
| |
|
|
| By: | /s/ Xxxxxx X. Xxxxxxxx | |
|
Name: Xxxxxx
X. Xxxxxxxx
Title:
Managing Member
|
||
| AIRGATE INTERNATIONAL CORPORATION | ||
| |
|
|
| By: | /s/ Xxxxx Xxxxxx | |
|
Name: Xxxxx
Xxxxxx
Title: Vice
President
|
||
|
AIRGATE
INTERNATIONAL CORPORATION (CHICAGO)
|
||
| |
|
|
| By: | /s/ Xxxxx Xxxxxx | |
|
Name: Xxxxx
Xxxxxx
Title: Vice
President
|
||
| PARADIGM INTERNATIONAL, INC. | ||
| |
|
|
| By: | /s/ Xxxxx Xxxxxx | |
|
Name: Xxxxx
Xxxxxx
Title: Vice
President
|
||
| PACIFIC CMA INTERNATIONAL, LLC | ||
| |
|
|
| By: | /s/ Xxxx Xxxx | |
|
Name: Xxxx
Xxxx
Title: Agent
|
||
| PACIFIC CMA, INC. | ||
| |
|
|
| By: | /s/ Xxxxx Xxxxxx | |
| Name: Xxxxx
Xxxxxx Title: Vice President |
||
| /s/Xxxxxx Xxx | ||
| Xxxxxx Xxx | ||
| XXXXX FARGO BANK, NATIONAL ASSOCIATION | ||
| |
|
|
| By: | /s/ Xxxxxxxx Xxxxxxx | |
|
Name:
Xxxxxxxx Xxxxxxx
Title:
Vice President
|
||
