SUBORDINATION AGREEMENT
Exhibit 10.5
This Subordination Agreement (this “Agreement”) is made as of December 30, 2005 by and
among the undersigned noteholders (each, a “Noteholder”), IdleAire Technologies Corporation
(“IdleAire”), the Administrative Agent and the Collateral Agent (each, as hereinafter
defined).
RECITALS
A. The Noteholders acquired certain senior secured convertible notes from IdleAire pursuant to
those certain Note Purchase Agreements, dated as of various dates in June, July and August, 2003
(the “Junior Note Agreements”), between IdleAire and each of the respective Noteholders,
pursuant to which the Noteholders appointed Xxx X. Xxxxxx III as the administrative agent (the
“Administrative Agent”) under the Junior Security Agreement (as defined below).
B. The obligations of IdleAire under the Junior Note Agreements are secured by certain assets
of IdleAire (the “Collateral”), as more fully described in that certain Security Agreement,
dated as of June 1, 2003, by and between IdleAire and the Administrative Agent (the “Junior
Security Agreement”).
C. Pursuant to an indenture (the “Indenture”) by and among IdleAire, the Guarantors
(as defined therein) and Xxxxx Fargo Bank, National Association, as trustee and collateral agent
(in such capacity, the “Collateral Agent”), IdleAire intends to issue $325,000,000
aggregate principal amount of senior secured notes (the “Senior Secured Notes”) and a
warrant to purchase shares of IdleAire’s common stock.
D. In connection with the execution and delivery of the Indenture, IdleAire will enter into a
security agreement (the “Security Agreement”) with the Collateral Agent for the benefit of
the holders of the Senior Secured Notes (the “Senior Holders”), pursuant to which IdleAire
will grant to the Collateral Agent a security interest in and lien on the Collateral.
E. IdleAire also intends to enter into a revolving credit facility of up to $35,000,000 (the
“Senior Credit Facility”) with one or more banks or other financial institutions (the
“Lenders”), to be administered by an administrative and collateral agent (the “Credit
Agreement Collateral Agent”) to obtain working capital for general corporate purposes, in
connection with which IdleAire will grant to the Credit Agreement Collateral Agent a lien on and
security interest in the Collateral.
F. The issuance of the Senior Secured Notes and the entry into the Senior Credit Facility will
benefit the Noteholders by providing additional financing to IdleAire for the development and
implementation of its business plan.
G. As a condition to the financing accommodations under the Senior Note Documents and the
Credit Facility Documents, the parties hereto have agreed to enter into this Agreement.
H. The Noteholders are willing to subordinate all contractual and any other liens they hold on
and to the Collateral to the liens of the Collateral Agent and the Credit Agreement Collateral
Agent in order to induce IdleAire, the Collateral Agent and the Credit Agreement Collateral Agent
to enter into the Indenture and the Senior Credit Facility, respectively.
NOW, THEREFORE, THE PARTIES HERETO HEREBY AGREE AS FOLLOWS:
1. As used in this Agreement, the following terms shall have the respective meanings
set forth in this Section:
“Borrower’s Property” means all assets, property and property rights, of any kind or
nature, tangible or intangible, now or hereafter existing, in which IdleAire owns, asserts or
maintains an interest.
“Credit Facility Documents” shall mean any and all future agreements, documents and/or
instruments evidencing, documenting, securing, governing or otherwise relating to any or all of the
Senior Credit Facility, all as the same may from time to time be amended, modified, renewed,
refinanced, extended or restated.
“Foreclosure Action” means, with respect to any creditor, any action to foreclose upon
or enforce a Lien against particular property, including commencing judicial or non-judicial
foreclosure proceedings, exercising any other remedy with respect to any item of real or personal
property included in the Collateral, exercising any rights afforded to secured creditors in a case
under the Bankruptcy Code (including those under Section 361, 362 or 363 thereof), or taking any
action under the Bankruptcy Code that directly relates to or directly affects any Collateral, other
than any such action that relates to or affects all or substantially all the property of the
bankruptcy estate.
“Finally Paid” or “Final Payment,” when used in connection with the Senior
Debt Obligations shall mean the full, final and indefeasible payment in cash and satisfaction of
all of the Senior Debt Obligations and the irrevocable termination of the Collateral Agent’s and
the Credit Agreement Collateral Agent’s obligation to make loans, accommodations or other advances
under the Senior Note Documents or the Credit Facility Documents.
“Junior Note Documents” shall mean any and all present and future agreements,
documents and/or instruments evidencing, documenting, securing, governing or otherwise relating to
any or all of the Junior Note Agreements and the Junior Security Agreement, all as the same may
from time to time be amended, modified, renewed, refinanced, extended or restated in compliance
with this Agreement.
“Liens” shall mean, with respect to any asset, any mortgage, deed of trust, lien
(statutory or other), pledge, lease, easement, restriction, covenant, charge, security interest or
other encumbrance of any kind or nature in respect of such asset, whether or not filed, recorded or
otherwise perfected under applicable law, including any conditional sale or other title retention
agreement, and any lease in the nature thereof, any option or other agreement to sell, and any
filing of, or agreement to give, any financing statement under the Uniform Commercial Code (or
equivalent statutes) of any jurisdiction (other than cautionary filings in respect of operating
leases).
“Realization” means any Foreclosure Action or other realization upon the Collateral,
including any payment or distribution of assets of the Borrower or any Subsidiary that is
attributable to the Collateral (or the proceeds thereof).
“Senior Debt Obligations” shall mean all obligations of IdleAire under the Senior Note
Documents and the Credit Facility Documents. “Senior Debt Obligations” shall include, without
limitation, interest which accrues on the principal amount of the Senior Debt Obligations
subsequent to the commencement of a case under Chapter 11 of the United States Bankruptcy Code.
“Senior Note Documents” shall mean any and all agreements, documents and/or
instruments evidencing, documenting, securing, governing or otherwise relating to any or all of the
Indenture and the Security Agreement, all as the same may from time to time be amended, modified,
renewed, extended or restated.
“Subordinated Indebtedness” means all indebtedness of IdleAire to the Noteholders
pursuant to the Junior Note Documents and all present and future loans, advances, debts,
liabilities, indebtedness obligations, claims and causes of action, otherwise owing to or arising
in favor of any Noteholder or the Administrative Agent in respect of IdleAire, whether evidenced by
any note, or other instrument or document, whether absolute or contingent, due or to become due,
including, without limitation, all interest, charges, expenses, fees, attorneys’ fees and any other
sums chargeable to IdleAire. “Subordinated Indebtedness” shall include, without limitation,
interest which accrues on the principal amount of the Subordinated Indebtedness subsequent to the
commencement of a case under Chapter 11 of the United States Bankruptcy Code.
“Subordinated Lender Remedies” means any action taken by the Administrative Agent or
the Noteholders that results in (a) the sale, foreclosure, realization on or liquidation of any
Borrower’s Property, (b) the execution on any judgment obtained against IdleAire, (c) the
acceleration of the Subordinated Indebtedness, (d) the filing of any petition or lien under any
bankruptcy, insolvency or creditors’ rights laws with respect to IdleAire, or (e) the institution
or exercise against IdleAire of any suit, legal action, arbitration or other enforcement remedy.
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“UCC” shall mean Article 9 of the Uniform Commercial Code, as in effect in the State
of Delaware from time to time.
2. Each Noteholder hereby:
(a) subordinates any and all rights and claims it has or may have in or to the Collateral
under the Junior Note Documents, or otherwise, to the rights of the Collateral Agent, the Senior
Holders, the Credit Agreement Collateral Agent and the Lenders in the Collateral; and
(b) agrees that any Liens that such Noteholder or the Administrative Agent may hereafter
acquire against IdleAire and Borrower’s Property shall be subordinate and subject to the Liens of
the Collateral Agent, the Senior Holders, the Credit Agreement Collateral Agent and the Lenders
arising from or out of the Senior Debt Obligations;
in each case, regardless of the order or time as of which any Liens attach to any of the Borrower’s
Property, the order or time of UCC filings or any other filings or recordings, the order or time of
granting of any such Liens, or the physical possession of any of the Borrower’s Property until this
Agreement is terminated in accordance with Section 11 hereof.
3. (a) IdleAire, each of the Noteholders and the Administrative Agent each hereby severally
represents and warrants to the Collateral Agent and the Credit Agreement Collateral Agent that the
Collateral Agent has been, and the Credit Agreement Collateral Agent will be, furnished with a true
and correct copy of all instruments and securities evidencing or pertaining to the Subordinated
Indebtedness.
(b) IdleAire hereby represents and warrants to the Collateral Agent and the Credit Agreement
Collateral Agent that this Agreement has been duly executed and delivered by IdleAire and
constitutes a legal, valid and binding obligation of IdleAire enforceable in accordance with its
terms except to the extent that the enforceability thereof may be limited by any applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws from time to time in effect
affecting generally the enforcement of creditors’ rights and remedies and general principles of
equity.
(c) Each Noteholder and the Administrative Agent hereby severally represents and warrants to
the Collateral Agent and the Credit Agreement Collateral Agent that: (i) this Agreement has been
duly executed and delivered by such Noteholder and the Administrative Agent, respectively, and
constitutes a legal, valid and binding obligation of such Noteholder and the Administrative Agent,
respectively, enforceable against such parties in accordance with its terms, except to the extent
that the enforceability thereof may be limited by any applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws from time to time in effect affecting generally the
enforcement of creditors’ rights and remedies and general principles of equity; (ii) such
Noteholder and the Administrative Agent is an individual having his principal residence and
domicile at the address set forth below his name on the signature page hereto; (iii) such
Noteholder acquired the Subordinated Indebtedness for his own account and not with a view to the
distribution thereof and has no present intention of distributing the Subordinated Indebtedness;
and (iv) such Noteholder and the Administrative Agent has not relied and shall not rely on any
representation or information of any nature made by or received from the Collateral Agent or the
Credit Agreement Collateral Agent relative to IdleAire in deciding to execute this Agreement or to
permit it to continue in effect.
4. Until all of the Senior Debt Obligations have been Finally Paid: (a) the Administrative
Agent shall not directly or indirectly demand or accept, and IdleAire shall not, directly or
indirectly, grant any further security interest in, mortgage, pledge, assign or transfer any
properties, to secure or satisfy all or any part of the Subordinated Indebtedness; (b) each
Noteholder agrees that he or she shall not transfer or assign any of the Subordinated Indebtedness
of such Noteholder to any person, unless such transferee or assignee shall have expressly
acknowledged in writing that such Subordinated Indebtedness is subject to the terms of this
Agreement; and (c) IdleAire, each Noteholder and the Administrative Agent each agree that he, she
or it shall not otherwise take any action contrary to the Collateral Agent’s and the Credit
Agreement Collateral Agent’s priority position that is created by this Agreement. Without limiting
the foregoing, the Administrative Agent and each Noteholder severally agree not to assert, collect,
enforce or seek to enforce any right or remedy with respect to the Collateral or any part
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thereof or take any action to foreclose or realize upon the Collateral or any part thereof for
so long as the Senior Debt Obligations are outstanding.
5. (a) In the event of IdleAire’s insolvency, reorganization or any case or proceeding under
any bankruptcy or insolvency law or laws relating to the relief of debtors (each, an
“Insolvency Proceeding”), the provisions of this Agreement shall remain in full force and
effect.
(b) Until the Senior Debt Obligations have been Finally Paid, in the event an Insolvency
Proceeding shall occur and be continuing, the Noteholders and the Administrative Agent:
(i) expressly consent to the granting by IdleAire to the Collateral Agent and the
Credit Agreement Collateral Agent of senior Liens and priorities in connection with any
post-petition financing of IdleAire by the Collateral Agent or the Credit Agreement
Collateral Agent; and
(ii) agree that adequate notice of such financing to the Noteholders and the
Administrative Agent shall have been provided if the Administrative Agent received notice
thereof five (5) business days prior to the entry of any order approving such cash
collateral usage or financing.
(c) In the event that the Noteholders or the Administrative Agent has or at any time acquires
any security for the Subordinated Indebtedness, the Noteholders and the Administrative Agent agree
not to assert any right they may have to “adequate protection” of their respective interests in
such security in any Insolvency Proceeding and agree that they will not seek to have the automatic
stay lifted with respect to such security, in each case without the prior written consent of the
Collateral Agent and the Credit Agreement Collateral Agent. The Noteholders and the Administrative
Agent hereby waive any claim or defense they may now or hereafter have arising out of the election
by the Collateral Agent or the Credit Agreement Collateral Agent in any Insolvency Proceeding
instituted under Chapter 11 of the United States Bankruptcy Code, of the application of Section
1111(b)(2) of the United States Bankruptcy Code, and/or any use of cash collateral, any borrowing
or any grant of a security interest under Sections 363 and/or 364 of the United States Bankruptcy
Code by Borrower, as debtor-in-possession.
(d) IdleAire shall give prompt written notice to the Collateral Agent, the Credit Agreement
Collateral Agent and the Administrative Agent of any dissolution, winding up, liquidation or
reorganization of IdleAire (whether in bankruptcy, insolvency or receivership proceedings or upon
an assignment for the benefit of creditors or otherwise).
6. (a) Notwithstanding anything herein to the contrary, the Administrative Agent and each
Noteholder hereby agrees that until all of the Senior Debt Obligations have been Finally Paid,
neither the Administrative Agent nor any Noteholder shall exercise any Subordinated Lender Remedies
or other remedies it may have for a default under the Junior Note Documents, nor will it hinder,
delay, interfere with or in any way obstruct the exercise by the Collateral Agent, the Senior
Holders or the Credit Agreement Collateral Agent of their respective remedies pursuant to the
Senior Note Documents, the Credit Facility Documents or applicable law. Further, neither the
Administrative Agent nor any Noteholder shall have the right to cause the Collateral Agent, the
Senior Holders or the Credit Agreement Collateral Agent to take any action, or consent to any
action or inaction on the part of any other person or entity, with respect to the Senior Debt
Obligations or any collateral held in connection therewith, and the Collateral Agent, the Senior
Holders or the Credit Agreement Collateral Agent may, in each of their sole discretion, take or
refrain from taking any action in connection with the Senior Note Documents or the Credit Facility
Documents, respectively.
(b) Until Final Payment of the Senior Debt Obligations, the Administrative Agent and each
Noteholder shall pay over or deliver to the Credit Agreement Collateral Agent, if any, or the
Collateral Agent, and segregate and hold in trust for the benefit of the holders or Senior Debt
Obligations until paid or delivered, any payment or distribution of any character, direct or
indirect, whether in cash, securities or other property, received by the Administrative Agent or
each Noteholder as a result of any Realization with respect to any Lien securing the Subordinated
Indebtedness or any Collateral, or any other payment or distribution of or on account of any such
Lien or Collateral or any proceeds thereof (including proceeds of any sale or other disposition of
Collateral).
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7. IdleAire, the Noteholders and the Administrative Agent each hereby waives, to the fullest
extent permitted by law, any defense based on the adequacy of a remedy at law which might be
asserted as a bar to the remedy of specific performance of this Agreement in any action brought
therefor by the Collateral Agent and the Credit Agreement Collateral Agent. To the fullest extent
permitted by law and except as to any notices specified in this Agreement, notices regarding the
intended sale or disposition of any portion of the Collateral by the Collateral Agent or the Credit
Agreement Collateral Agent, or any notice which may not be waived in accordance with the UCC,
IdleAire, the Noteholders and the Administrative Agent each hereby further waives: presentment,
demand, protest, notice of protest, notice of default or dishonor, notice of payment or nonpayment
and any and all other notices and demands of any kind in connection with all negotiable instruments
evidencing all or any portion of the Senior Debt Obligations or the Subordinated Indebtedness to
which IdleAire, the Noteholders or the Administrative Agent may be a party; prior notice of and
consent to any loans made, extensions granted or other action taken in reliance thereon; and all
other demands and notices of every kind in connection with this Agreement, the Senior Debt
Obligations or the Subordinated Indebtedness. The Noteholders and the Administrative Agent hereby
consent to any release, renewal, extension, compromise or postponement of the time of payment of
the Senior Debt Obligations, to any substitution, exchange or release of collateral therefor, and
to the addition or release of any person primarily or secondarily liable thereon.
8. Neither the failure nor any delay on the part of the Collateral Agent or the Credit
Agreement Collateral Agent to exercise any right, remedy, power or privilege hereunder shall
operate as a waiver thereof or give rise to an estoppel, nor be construed as an agreement to modify
the terms of this Agreement, nor shall any single or partial exercise of any right, remedy, power
or privilege with respect to any occurrence be construed as a waiver of such right, remedy, power
or privilege with respect to any other occurrence. No waiver by a party hereunder shall be
effective unless it is in writing and signed by the party making such waiver, and then only to the
extent specifically stated in such writing.
9. If any material representation or warranty of IdleAire, the Noteholders or the
Administrative Agent in this Agreement or in any instrument evidencing, securing or relating to the
Senior Debt Obligations proves to have been materially false when made, or, in the event of a
material breach by IdleAire, the Noteholders or the Administrative Agent in the performance of any
of the material terms of this Agreement, or any instrument or agreement evidencing, securing or
relating to the Senior Debt Obligations, all of the Senior Debt Obligations shall, at the option of
the Collateral Agent or the Credit Agreement Collateral Agent, become immediately due and payable
without presentment, demand, protest, or notices of any kind, notwithstanding any time or credit
otherwise allowed. At any time the Noteholders or the Administrative Agent fail to comply with any
provision of this Agreement that is applicable to the Noteholders or the Administrative Agent, the
Collateral Agent and the Credit Agreement Collateral Agent may demand specific performance of this
Agreement, whether or not IdleAire has complied with this Agreement, and each may exercise any
other remedy available at law or equity.
10. The Junior Note Documents shall not be amended without the prior written consent of the
Credit Agreement Collateral Agent. In the event that any provision of the Junior Note Documents,
is inconsistent or conflicts with the provisions of this Agreement, the provisions of this
Agreement shall govern and prevail.
11. This Agreement shall continue in full force and effect, and the obligations of the
Noteholders, the Administrative Agent and IdleAire shall continue in full force and effect, until
the Final Payment of all outstanding Senior Debt Obligations. To the extent that IdleAire makes
any payment on the Senior Debt Obligations that is subsequently invalidated, declared to be
fraudulent or preferential or set aside or is required to be repaid to a trustee, receiver or any
other party under any bankruptcy, insolvency or reorganization act, state or federal law, common
law or equitable cause (such payment being hereinafter referred to as a “Voided Payment”),
then, to the extent of such Voided Payment, that portion of the Senior Debt Obligations that had
been previously satisfied by such Voided Payment shall be revived and continue in full force and
effect as if such Voided Payment had not been made. Upon the Final Payment of the Senior Debt
Obligations, this Agreement shall automatically terminate without further action by any party
hereto.
12. Nothing contained herein or in the Senior Note Documents or the Credit Facility Documents
is intended to or shall impair, as between IdleAire, on the one hand, and the Noteholders and the
Administrative Agent, on the other hand, the obligations of IdleAire, which are absolute and
unconditional, to pay to the holders of the Subordinated Indebtedness the Subordinated Indebtedness
as and when the same shall become due and payable
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in accordance with their terms, or to affect the relative rights of the Noteholders, the
Administrative Agent and other creditors of IdleAire, other than the Collateral Agent and the
Credit Agreement Collateral Agent.
13. (a) No right of any present or future holder of any Senior Debt Obligations to enforce the
subordination provided herein shall at any time in any way be prejudiced or impaired by any act or
failure to act on the part of IdleAire; by any act or failure to act, which act or failure is in
good faith, by any such holder; by any act or failure to act by any other holder of the Senior Debt
Obligations; or by any noncompliance by IdleAire with the terms hereof, regardless of any knowledge
thereof which any such holder may have or be otherwise charged with. Neither the Noteholders nor
the Administrative Agent shall be released, nor shall their respective obligations hereunder be in
anyway diminished, by any of the following: (i) the exercise or the failure to exercise by the
Collateral Agent or the Credit Agreement Collateral Agent of any rights or remedies conferred on it
or them under the Senior Note Documents, the Credit Facility Documents or hereunder, or existing at
law or otherwise, or against any of Borrower’s Property; (ii) the commencement of an action at law
or the recovery of a judgment at law against IdleAire or any obligor (each, an “Obligor”)
for the performance of the Senior Debt Obligations and the enforcement thereof through levy or
execution or otherwise; (iii) the taking or institution or any other action or proceeding against
IdleAire or any Obligor; or (iv) any delay in taking, pursuing, or exercising any of the foregoing
actions, rights, powers, or remedies (even though requested by the Noteholders or the
Administrative Agent) by the Collateral Agent or the Credit Agreement Collateral Agent or anyone
acting on their behalf.
(b) Without limiting the generality of the foregoing, and anything else contained herein to
the contrary notwithstanding, the Collateral Agent and the Credit Agreement Collateral Agent, from
time to time, without prior notice to or the consent of the Noteholders or the Administrative
Agent, may take all or any of the following actions without in any manner affecting or impairing
the obligation or liability of the Noteholders or the Administrative Agent hereunder: (i) obtain a
lien or a security interest in any property to secure any of the Senior Debt Obligations; (ii)
obtain the primary and secondary liability of any party or parties with respect to any of the
Senior Debt Obligations; (iii) renew, extend or otherwise change the time for payment of the Senior
Debt Obligations or any installment thereof for any period; (iv) release or compromise any
liability of any nature of any person or entity with respect to the Senior Debt Obligations; (v)
exchange, enforce, waive, release, and apply any of Borrower’s Property and direct the order or
manner of sale thereof as the Collateral Agent or the Credit Agreement Collateral Agent may in its
discretion determine; (vi) enforce their rights hereunder, whether or not the Collateral Agent or
the Credit Agreement Collateral Agent shall proceed against any other person or entity; (vii)
exercise its rights to consent to any action or non-action of IdleAire which may violate the
covenants and agreements contained in the Senior Note Documents or the Credit Facility Documents,
with or without consideration, on such terms and conditions as may be acceptable to such party; or
(viii) exercise any of its rights conferred by the Senior Note Documents, the Credit Facility
Documents or by law.
14. The Noteholders and the Administrative Agent hereby agree to enter into any additional
agreements and execute any further instruments as may be required by the Collateral Agent or the
Credit Agreement Collateral Agent to give effect to the intent of this Agreement. Without limiting
the foregoing, if in connection with any enforcement action, the Collateral Agent or the Credit
Agreement Collateral Agent releases any of its security for any of the Senior Debt Obligations
which constitutes part or all of the security for the Subordinated Indebtedness, the Administrative
Agent shall thereupon execute and deliver to the Collateral Agent and the Credit Agreement
Collateral Agent such termination statements and releases as the Collateral Agent and the Credit
Agreement Collateral Agent shall reasonably request to release the Administrative Agent’s security
interest in or lien against such property of IdleAire. The Noteholders and the Administrative
Agent agree (a) that, to the extent this Agreement constitutes an amendment of any of the Junior
Note Documents, the same shall be amended hereby; and (b) not to take any action under the Junior
Note Documents that would be prohibited under this Agreement.
15. The Credit Agreement Collateral Agent is intended to be, and shall be, a third-party
beneficiary of this Agreement.
16. This Agreement may be executed in two or more counterparts, each of which shall be deemed
an original and all of which together shall constitute one instrument. The provisions of this
Agreement are independent of and separable from each other. If any provision hereof shall for any
reason be held invalid or unenforceable, it is the intent of the parties that such invalidity or
unenforceability shall not affect the validity or enforceability of any
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other provision hereof, and that this Agreement shall be construed as if such invalid or
unenforceable provision had never been contained herein.
17. This Agreement shall inure to the benefit of the Collateral Agent, the Credit Agreement
Collateral Agent, and their respective successors and assigns, and shall be binding upon IdleAire
and its successors and assigns, and each Noteholder and the Administrative Agent, and their
respective heirs, legatees, distributees, transferees, executors, administrators and personal
representatives and assigns, including without limitation, any subsequent holders of the
Subordinated Indebtedness. The Collateral Agent and the Credit Agreement Collateral Agent, without
prior notice or consent of any kind, may sell, assign or transfer the Senior Debt Obligations, and
in such event each and every immediate and successive assignee or transferee thereof may be given
the right by the Collateral Agent or the Credit Agreement Collateral Agent, as applicable, to
enforce this Agreement in full against IdleAire, the Noteholders and the Administrative Agent, by
suit or otherwise, for its own benefit, provided that such successor, assignee or transferee agrees
to be bound by the terms of this Agreement.
18. This Agreement has been negotiated by the parties with the expectation and in reliance
upon the assumption that the instruments and documents evidencing the Senior Debt Obligations are
valid and enforceable. In determining whether to enter into this Agreement, the Noteholders and
the Administrative Agent have assumed such validity and enforceability, and have agreed to the
provisions contained herein, without relying upon any reservation of a right to challenge or call
into question such validity or enforceability. As between the Collateral Agent and the Credit
Agreement Collateral Agent, on the one hand, and the Noteholders and the Administrative Agent, on
the other hand, the Noteholders and the Administrative Agent each hereby covenant and agree, to the
fullest extent permitted by law, that they shall not initiate in any proceeding a challenge to the
validity or enforceability of the documents and instruments evidencing the Senior Debt Obligations,
nor shall the Noteholders or the Administrative Agent instigate other parties to raise any such
challenges, nor shall the Noteholders or the Administrative Agent participate in or otherwise
assert any such challenges which are raised by other parties.
19. This Agreement shall be governed by and construed in accordance with the laws of the State
of New York, without giving effect to conflicts of laws principles.
20. The Noteholders are not relying on any representations by IdleAire in entering into this
Agreement, and the Noteholders have kept and will continue to keep themselves fully apprised of the
financial and other condition of IdleAire. This Agreement may be amended only by written
instrument executed by each of the parties hereto.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date first above
written.
| Noteholders: | ||||||
| XXXXX X. XXXXXXXX | ||||||
| XXXXXX X. XXXXXXXX | ||||||
| By: /s/ Xxxxx X. Xxxxxxxx | ||||||
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| Name: Xxxxx X. Xxxxxxxx | ||||||
| Address: | ||||||
| By: /s/ Xxxxxx X. Xxxxxxxx | ||||||
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| Name: Xxxxxx X. Xxxxxxxx | ||||||
| Address: | ||||||
| H. XXXXX XXXXXXX | ||||||
| By: /s/ H. Xxxxx Xxxxxxx | ||||||
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| Name: H. Xxxxx Xxxxxxx | ||||||
| Address: | ||||||
| XXXX X. XXXXX | ||||||
| By: /s/ Xxxx X. Xxxxx | ||||||
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| Name: Xxxx X. Xxxxx | ||||||
| Address: | ||||||
| XXXXXXX XXXXXXX | ||||||
| By: /s/ Xxxxxxx Xxxxxxx | ||||||
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| Name: Xxxxxxx Xxxxxxx | ||||||
| Address: | 0000 Xxxxx Xxxxx Xxxx | |||||
| Xxxxx, Xxxxxxxx 00000 | ||||||
| IDLEAIRE NOTE PARTNERSHIP ONE | ||||||
| By: /s/ R. Xxxx Xxxxxx | ||||||
| Name: R. Xxxx Xxxxxx, as General Partner | ||||||
| Address: | X.X. Xxx 00000 | |||||
| Xxxxxxxxx, Xxxxxxxxx 00000 | ||||||
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| XXXXX X. XXXXXX | ||||||
| By: /s/ Xxxxx X. Xxxxxx | ||||||
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| Name: Xxxxx X. Xxxxxx | ||||||
| Address: | ||||||
| XXXXXXX XXXXXXX | ||||||
| By: /s/ Xxxxxxx Xxxxxxx | ||||||
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| Name: Xxxxxxx Xxxxxxx | ||||||
| Address: | ||||||
| XXXX X. XXXXX QUALIFIED PERSONAL RESIDENCE TRUST | ||||||
| By: /s/ Xxxxxxxx Xxxxx Xxxxxxxx | ||||||
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| Name: Xxxxxxxx Xxxxx Xxxxxxxx, xx Trustee | ||||||
| Address: | 0000 Xxxxxx Xxx | |||||
| Xxxxxxxxx, Xxxxxxxxx 00000 | ||||||
| XXXXXX X. XXXXXXXX | ||||||
| By: /s/ Xxxxxx X. Xxxxxxxx | ||||||
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| Name: Xxxxxx X. Xxxxxxxx | ||||||
| Address: | ||||||
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| IdleAire Technologies Corporation, a Delaware corporation |
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| By: /s/ Xxxxxxx X. Xxxxxxxx | ||||||
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| Name: Xxxxxxx X. Xxxxxxxx | ||||||
| Title: President & CEO | ||||||
| Administrative Agent: | ||||||
| /s/ Xxx X. Xxxxxx III | ||||||
| Xxx X. Xxxxxx, III, an Arkansas resident | ||||||
| Address: | ||||||
| Xxxxx Fargo Bank, National Association, as collateral Agent: |
||||||
| /s/ Xxxx X. Xxxxxxx | ||||||
| Name: Xxxx X. Xxxxxxx | ||||||
| Title: Vice President | ||||||
10
