Contract
EXECUTION
COPY
This
Guaranty 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
Borrower and the Guarantors, which Intercreditor Agreement is incorporated
herein by reference. Notwithstanding any statement to the contrary in this
Guaranty, (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 until such time when
the Senior Debt (as defined in the Intercreditor Agreement) has been paid in
full.
CONTINUING
UNCONDITIONAL GUARANTY
(Xxxxxx
Xxx)
WHEREAS,
Airgate International Corporation, a New York corporation (the “Borrower”)
and
the Guarantors (as defined in the Loan Agreement), from time to time party
thereto are entering into that certain Loan and Security Agreement dated as
of
July 17, 2007 (as may be amended, restated, supplemented or otherwise
modified from time to time, the “Loan
Agreement”)
with
BHC INTERIM FUNDING II, L.P., a Delaware limited partnership (the “Lender”),
pursuant to which Lender is concurrently making a secured term loan to Borrower
(the “Term
Loan”);
and
WHEREAS,
Lender has required that the undersigned, in his capacity as guarantor hereunder
(the “Guarantor”),
execute and deliver this Continuing Unconditional Guaranty (this “Guaranty”)
to
Lender as a condition precedent to making the Term Loan to Borrower pursuant
to
the Loan Agreement; and
WHEREAS,
Guarantor is the sole shareholder of Borrower and
therefore Guarantor will directly or indirectly receive certain benefits from
the credit accommodations hereinabove described and is therefore willing to
guaranty the prompt payment and performance of the Obligations (as such term
is
hereinafter defined) of Borrower, on the terms set forth in this
Guaranty.
NOW,
THEREFORE, for value received and in consideration of Lender’s execution of the
Loan Agreement and making of the Term Loan to Borrower, the undersigned
irrevocably, absolutely and unconditionally guarantees (i) the full and
prompt payment when due, whether at maturity or earlier, by reason of
acceleration or otherwise, and at all times thereafter, of all of the
indebtedness and obligations of every kind and nature of Borrower to Lender,
or
any parent, affiliate or subsidiary of Lender (the term “Lender” as used
hereafter shall include such parents, affiliates and subsidiaries), pursuant
to
the terms of the Loan Agreement and the other Loan Documents, and whether
principal, interest, fees, costs, expenses or otherwise (including, without
limitation, any interest, fees or reasonable expenses accruing following the
commencement of any insolvency, receivership, reorganization or bankruptcy
case
or proceeding relating to Borrower, whether or not a claim for post-petition
interest, fees or expenses is allowed in such case or proceeding), howsoever
created, arising or evidenced, whether direct or indirect, absolute or
contingent, joint or several, now or hereafter existing, or due or to become
due, and howsoever owned, held or acquired by Lender, whether through discount,
overdraft, purchase, direct loan or as collateral or otherwise; and
(ii) the prompt, full and faithful discharge by Borrower of each and every
term, condition, agreement, covenant, representation and warranty now or
hereafter made by Borrower to Lender under the Loan Agreement and the other
Loan
Documents (as such term is defined in the Loan Agreement) (all such indebtedness
and obligations being hereinafter referred to as the “Obligations”).
For
sake of clarity, the Obligations shall include all “Obligations” as defined in
the Loan Agreement. Guarantor further agrees to pay all reasonable out-of-pocket
costs and expenses, including, without limitation, all court costs and
reasonable attorneys’ and paralegals’ fees paid or incurred by Lender in
collecting all or any part of the Obligations from, or in prosecuting or
defending any action against, Guarantor or any other guarantor of all or any
part of the Obligations. All amounts payable by Guarantor under this Guaranty
shall be payable upon demand by Lender and shall be made in lawful money of
the
United States, in immediately available funds.
SECTION
1. No
Fraudulent Conveyance.
Notwithstanding any provision of this Guaranty to the contrary, it is intended
that this Guaranty, and any liens and security interests granted by Guarantor
to
secure this Guaranty, do not constitute a “Fraudulent Conveyance” (as defined
below). Consequently, Guarantor agrees that if this Guaranty, or any liens
and
security interests securing this Guaranty, would, but for the application of
this sentence, constitute a Fraudulent Conveyance, this Guaranty and each such
lien and security interest shall be valid and enforceable only to the maximum
extent that would not cause this Guaranty or such lien and security interest
to
constitute a Fraudulent Conveyance, and this Guaranty or the other Loan
Documents providing for such liens and security interests shall automatically
be
deemed to have been amended accordingly at all relevant times. For purposes
hereof, “Fraudulent
Conveyance”
means
a
fraudulent conveyance under Section 548
of the
Bankruptcy Code (as hereinafter defined) or a fraudulent conveyance or
fraudulent transfer under the provisions of any applicable fraudulent conveyance
or fraudulent transfer law or similar law of any state, nation or other
governmental unit, as in effect from time to time.
SECTION
2. Unconditional
Guaranty.
Guarantor hereby agrees that, except as hereinafter provided, his obligations
under this Guaranty shall be irrevocable, absolute and unconditional,
irrespective of (i) the validity or enforceability of the Obligations or
any part thereof, or of any promissory note or other document evidencing all
or
any part of the Obligations, (ii) the absence of any attempt to collect
from Borrower or any other guarantor all or any part of the Obligations or
other
action to enforce the same, (iii) the waiver or consent by Lender with
respect to any provision of any instrument evidencing the Obligations, or any
part thereof, or any other agreement heretofore, now or hereafter executed
by
Borrower or any other guarantor, and delivered to Lender, (iv) failure by
Lender to take any steps to perfect and maintain its security interest in,
or to
preserve its rights, title or interest in and to, any security or collateral
for
the Obligations, (v) the existence or nonexistence of any defenses which
may be available to Borrower or any other guarantor with respect to all or
any
part of the Obligations, (vi) the institution of any proceeding under Chapter
11
of Title 11 of the United States Code (11 U.S.C. § 101 et seq.), as amended (the
“Bankruptcy
Code”),
or
any similar proceeding, by or against Borrower or any other guarantor or
Lender’s election in any such proceeding of the application of Section
1111(b)(2) of the Bankruptcy Code, (vii) any borrowing or grant of a
security interest by Borrower, as debtor-in-possession, under Section 364 of
the
Bankruptcy Code (or use of cash collateral under Section 363
of the
Bankruptcy Code), (viii) the disallowance, under Section 502 of the
Bankruptcy Code, of all or any portion of Lender’s claim(s) for repayment of the
Obligations, or (ix) any other circumstance which might otherwise
constitute a legal or equitable discharge or defense of any other
guarantor.
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SECTION
3. Waiver.
Guarantor hereby waives diligence, presentment, demand of payment, filing of
claims with a court in the event of receivership or bankruptcy of Borrower
or
any other guarantor, protest or notice (except as provided elsewhere in the
Loan
Documents) with respect to the Obligations and all demands whatsoever, and
covenants that this Guaranty will not be discharged, except by complete and
indefeasible payment and satisfaction in full of all of the Obligations.
Guarantor further waives notice of (i) acceptance of this Guaranty,
(ii) the existence or incurring from time to time of any Obligations
guarantied hereunder, (iii) the existence of any Default or Event of
Default, demand of payment, nonpayment, or Lender taking any action, under
the
Loan Agreement or any other Loan Document, and (iv) default and demand
hereunder. Upon the occurrence and during the continuance of any Event of
Default (as defined in the Loan Agreement), Lender may, in its sole election
(regardless of whether the liability of Borrower or any other guarantor of
all
or any part of the Obligations has matured or may then be enforced), proceed
directly and at once, without notice, against Guarantor to collect and recover
the full amount or any portion of the Obligations, without first proceeding
against Borrower, any other guarantor, or any other Person (as defined in the
Loan Agreement), firm or corporation, or against any security or collateral
for
the Obligations. Guarantor agrees that this Guaranty constitutes a guarantee
of
payment when due and not of collection.
SECTION
4. Authorization.
Lender
is hereby authorized, without notice or demand and without affecting the
liability of Guarantor hereunder, at any time and from time to time to
(i) renew, extend, accelerate or otherwise change the time for payment of,
or other terms relating to, the Obligations or otherwise modify, amend or change
the terms of any promissory note or other agreement, document or instrument
now
or hereafter executed by Borrower or any other guarantor and delivered to
Lender; (ii) accept partial payments on the Obligations; (iii) take
and hold security or collateral for the payment of the Obligations guaranteed
hereby, or for the payment of this Guaranty, or for the payment of any other
guaranties of the Obligations, and exchange, enforce, waive and release any
such
security or collateral; (iv) apply such security or collateral and direct
the order or manner of sale or other disposition thereof in its discretion
as it
may determine; and (v) settle, release, compromise, collect or otherwise
liquidate the Obligations and any security or collateral therefor in any manner,
without affecting or impairing the obligations of Guarantor hereunder. Lender
shall have the exclusive right to determine the time and manner of application
of any payments or credits, whether received from Borrower or any other source,
and such determination shall be binding on Guarantor. All such payments and
credits may be applied, reversed and reapplied, in whole or in part, to any
of
the Obligations as Lender shall determine in its discretion without affecting
the validity or enforceability of this Guaranty.
SECTION
5. Guarantor’s
Responsibility.
Guarantor hereby assumes responsibility for keeping himself informed
of the financial condition of Borrower and any and all endorsers and/or other
guarantors of any instrument or document evidencing all or any part of the
Obligations and of all other circumstances bearing upon the risk of nonpayment
of the Obligations or any part thereof, and Guarantor hereby agrees that Lender
shall have no duty to advise Guarantor of information known to Lender regarding
such condition or any such circumstances or to undertake any investigation.
If
Lender, in its discretion, undertakes at any time or from time to time to
provide any such information to Guarantor, Lender shall be under no obligation
to update any such information or to provide any such information to Guarantor
on any subsequent occasion. Guarantor further acknowledges that Guarantor has
examined or had the opportunity to examine the Loan Agreement and the other
Loan
Documents, and waives any defense which may exist resulting from Guarantor’s
failure to receive or examine at any time the Loan Agreement or the other Loan
Documents.
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SECTION
6. Consent.
Guarantor consents and agrees that Lender shall be under no obligation to
marshal any assets in favor of Guarantor or against or in payment of any or
all
of the Obligations. Guarantor further agrees that, to the extent that Borrower,
Guarantor or any other Person (as defined in the Loan Agreement) makes a payment
or payments to Lender, or Lender receives any proceeds of the Collateral (as
defined in the Loan Agreement), which payment or payments or any part thereof
are subsequently invalidated, declared to be fraudulent or preferential, set
aside and/or required to be repaid to Borrower, its estate, trustee, receiver
or
any other Person, including, without limitation, Guarantor, under any bankruptcy
law, state or federal law, common law or equitable theory, then to the extent
of
such payment or repayment, the Obligations or the part thereof which has been
paid, reduced or satisfied by such amount, and Guarantor’s obligations hereunder
with respect to such portion of the Obligations, shall be reinstated and
continued in full force and effect as of the date such initial payment,
reduction or satisfaction occurred.
SECTION
7. Transfer.
Lender
may sell or assign the Obligations or any part thereof, or grant participations
therein, and in any such event, each and every immediate or remote assignee
or
holder of, or participant in, all or any of the Obligations shall have the
right
to enforce this Guaranty, by suit or otherwise, for the benefit of such
assignee, holder or participant, as fully as if herein by name specifically
given such right, but Lender shall have an unimpaired right, prior and superior
to that of any such assignee, holder or participant, to enforce this Guaranty
for the benefit of Lender, as to any part of the Obligations retained by
Lender.
SECTION
8. Binding
on Assigns.
This
Guaranty shall be binding upon Guarantor and upon the heirs, executors,
successors (including, without limitation, any receiver, trustee or
debtor-in-possession of or for Guarantor) and assigns of Guarantor, and shall
inure to the benefit of Lender and its successors in interest and assigns;
provided,
however,
that
Guarantor’s obligations hereunder may not be delegated or assigned without
Lender’s prior written consent.
SECTION
9. Representations
and Warranties.
Guarantor represents and warrants (which representations and warranties shall
survive the execution and delivery hereof) to Lender that:
(a) Guarantor
has the full power, authority and legal capacity to execute, deliver and perform
this Guaranty and the transactions contemplated hereby;
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(b) No
consent of any person (including, without limitation, creditors of the
Guarantor) which has not been obtained as of the date hereof, and no consent,
permit, approval or authorization of, exemption by, notice or report to, or
registration, filing or declaration with, any governmental authority is required
in connection with the execution, delivery, performance, validity or
enforceability of this Guaranty and the transactions contemplated
hereby;
(c) This
Guaranty constitutes the legal, valid and binding obligation of the Guarantor,
enforceable in accordance with its terms, except as the enforceability thereof
may be limited by applicable bankruptcy, reorganization, insolvency, moratorium
or other laws affecting creditors’ rights generally;
(d) The
execution, delivery and performance of this Guaranty will not violate any
requirement of law applicable to or material contractual obligation by which
the
Guarantor or his property is bound; and
(e) It
is in
Guarantor’s direct interest to assist Borrower in procuring credit because
Guarantor has a direct or indirect investment in or business relationship with
Borrower.
SECTION
10. Continuation.
This
Guaranty shall continue in full force and effect (and may not be revoked or
terminated), and Lender shall be entitled to make the Term Loan and extend
other
financial accommodations to Borrower on the faith hereof until such time as
Lender has, in writing, notified Guarantor that all of the Obligations have
been
indefeasibly paid and satisfied in full and the Loan Agreement has been
terminated.
SECTION
11. Subrogation.
Any and
all rights of any nature of Guarantor to subrogation, contribution,
reimbursement or indemnity and any right of Guarantor to recourse to any assets
or property of, or payment from, Borrower or any other guarantor of all or
any
part of the Obligations as a result of any payments made or to be made hereunder
for any reason are hereby unconditionally waived, and Guarantor shall not at
any
time exercise any of such rights unless and until all of the Obligations have
been indefeasibly paid and satisfied in full. Any payments received by Guarantor
in violation of this Section 11 shall be held in trust for and immediately
remitted to Lender.
SECTION
12. Subordination.
The
payment of any and all of the indebtedness, liabilities and obligations of
Borrower to Guarantor of every kind or nature, whether joint or several, due
or
to become due, absolute or contingent, now existing or hereafter arising, and
whether principal, interest, fees, costs, expenses or otherwise (collectively,
the “Subordinated
Debt”),
other
than remuneration or reimbursable expenses payable to Guarantor in his capacity
as an officer, director or employee of Borrower (in each case, subject to the
restrictions therein contained in the Loan Agreement), is expressly subordinated
to the Obligations. So long as any Obligations remain outstanding and the Loan
Agreement has not been terminated, no payment of any kind (by voluntary payment,
prepayment, acceleration, setoff or otherwise) of any portion of the
Subordinated Debt may be made by Borrower or received or accepted by Guarantor
at any time. Until such time as the Obligations have been indefeasibly paid
and
satisfied in full and the Loan Agreement has been terminated, Guarantor will
not
(i) obtain any Lien on any property of Borrower to secure the Subordinated
Debt, or (ii) make demand for payment of all or any part of the
Subordinated Debt or commence any lawsuit, action or proceeding of any kind
against Borrower to recover all or any part of the Subordinated Debt. Any
payments received by Guarantor in violation of this Section 12
shall be
held in trust for and immediately remitted to Lender.
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SECTION
13. GOVERNING
LAW.
THIS
GUARANTY SHALL BE GOVERNED BY AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE
WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT
OF
LAWS PRINCIPLES.
SECTION
14. CONSENT
TO JURISDICTION; SERVICE OF PROCESS.
GUARANTOR HEREBY CONSENTS TO THE JURISDICTION OF ANY STATE OR FEDERAL COURT
LOCATED WITHIN THE COUNTY OF NEW YORK, STATE OF NEW YORK, AND IRREVOCABLY AGREES
THAT, SUBJECT TO LENDER’S ELECTION, ALL ACTIONS OR PROCEEDINGS ARISING OUT OF OR
RELATING TO THIS GUARANTY SHALL BE LITIGATED IN SUCH COURTS. GUARANTOR ACCEPTS
FOR HIMSELF, GENERALLY AND UNCONDITIONALLY, THE NON-EXCLUSIVE JURISDICTION
OF
THE AFORESAID COURTS AND WAIVES ANY DEFENSE OF FORUM NON CONVENIENS, AND
IRREVOCABLY AGREES TO BE BOUND BY ANY JUDGMENT RENDERED THEREBY IN CONNECTION
WITH THIS GUARANTY. GUARANTOR HEREBY WAIVES PERSONAL SERVICE OF ANY AND ALL
PROCESS AND AGREES THAT ALL SUCH SERVICE OF PROCESS MAY BE MADE UPON GUARANTOR
BY CERTIFIED OR REGISTERED MAIL, RETURN RECEIPT REQUESTED, DIRECTED TO
GUARANTOR, AT GUARANTOR’S ADDRESS SET FORTH ON THE SIGNATURE PAGE HEREOF OR AS
MOST RECENTLY NOTIFIED BY GUARANTOR IN WRITING, AND SERVICE SO MADE SHALL BE
COMPLETE TEN (10) DAYS AFTER THE SAME HAS BEEN POSTED AS AFORESAID.
SECTION
15. JURY
TRIAL WAIVER.
GUARANTOR AND LENDER HEREBY WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF
ANY
CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS GUARANTY. GUARANTOR
AND LENDER ACKNOWLEDGE THAT THIS WAIVER IS A MATERIAL INDUCEMENT TO ENTER INTO
A
BUSINESS RELATIONSHIP, THAT EACH HAS ALREADY RELIED ON THE WAIVER IN ENTERING
INTO THIS GUARANTY AND THAT EACH WILL CONTINUE TO RELY ON THE WAIVER IN THEIR
RELATED FUTURE DEALINGS. GUARANTOR AND LENDER FURTHER WARRANT AND REPRESENT
THAT
EACH HAS REVIEWED THIS WAIVER WITH HIS/ITS LEGAL COUNSEL, AND THAT EACH
KNOWINGLY AND VOLUNTARILY WAIVES HIS/ITS JURY TRIAL RIGHTS FOLLOWING
CONSULTATION WITH LEGAL COUNSEL.
SECTION
16. Entire
Agreement; Severability.
This
Guaranty represents the entire understanding and agreement between Guarantor,
on
the one hand, and Lender, on the other hand, with respect to the subject matter
contained herein, and there are no other existing agreements or understandings,
whether oral or written, between or among such parties as to such subject
matter. Wherever possible, each provision of this Guaranty shall be interpreted
in such manner as to be effective and valid under applicable law, but if any
provision of this Guaranty shall be prohibited by or invalid under applicable
law, such provision shall be ineffective only to the extent of such prohibition
or invalidity, without invalidating the remainder of such provision or the
remaining provisions of this Guaranty.
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SECTION
17. Cumulative
Remedies; Amendments.
All
rights and remedies hereunder and under the Loan Agreement and the other Loan
Documents are cumulative and not alternative, and Lender may proceed in any
order from time to time against Borrower, Guarantor or any other Guarantor
of
all or any part of the Obligations and their respective assets. Lender shall
not
have any obligation to proceed at any time or in any manner against, or exhaust
any or all of Lender’s rights against, Borrower or any other guarantor of all or
any part of the Obligations prior to proceeding against Guarantor hereunder.
No
failure or delay on the part of Lender in the exercise of any power, right
or
privilege shall impair such power, right or privilege or be construed to be
a
waiver of any Default or acquiescence therein, nor shall any single or partial
exercise of any such power, right or privilege preclude other or further
exercise thereof or of any other right, power or privilege. No amendment,
modification or waiver of any provision of this Guaranty, or consent to any
departure by Guarantor therefrom, shall be effective unless the same shall
be in
writing and signed by Lender and Guarantor. Each amendment, modification or
waiver shall be effective only in the specific instance and for the specific
purpose for which the same was consented to by the Lender.
[Remainder
of Page Intentionally Left Blank]
-7-
IN
WITNESS WHEREOF, this Guaranty has been duly executed by the undersigned as
of
July __, 2007.
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| By: | /s/ Xxxxxx Xxx | |
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Xxxxxx Xxx
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Address:
11/F., Xxxxxx Centre
00-00
Xxxx Xxx Xxxxxx
Xxxx
Xxxxx, Xxx Xxxxxxxxxxx,
Xxxx
Xxxx
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Accepted:
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BHC
Interim Funding II, L.P.
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By:
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BHC
Interim Funding Management, L.L.C.,
its
General Partner
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By:
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BHC
Investors II, L.L.C.,
its
Managing Member
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By:
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GHH
Holdings, L.L.C.
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By:
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/s/Xxxxxx
Xxxxxxxx
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Name:
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Xxxxxx
X. Xxxxxxxx
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Title:
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Managing
Member
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Signature
Page to Continuing Guaranty (Individual)
HONG
KONG, SAR: ss.:
On
the
___ day of July in the year 2007 before me, the undersigned, personally appeared
Xxxxxx Xxx, known to me or proved to me on the basis of satisfactory evidence
to
be the individual whose name is subscribed to the within instrument and
acknowledged to me that he executed the same in his individual capacity, and
that by his signature on the instrument, the individual executed the
instrument.
| /s/ Xxxxxx Xx Wa: Xxxxxxx | |||
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Notary
Public
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Notary
Page to Continuing Guaranty (Individual)
