CONTINUING UNCONDITIONAL GUARANTY (Hong Kong Corporate Guarantor)
EXECUTION
COPY
(Hong
Kong Corporate
Guarantor)
WHEREAS,
Airgate International Corporation, a New York corporation, as borrower
(“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”;
all
capitalized terms used herein shall have the same meanings ascribed to them
in
the Loan Agreement unless otherwise expressly stated) 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 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,
the Guarantor is an Affiliate of
Borrower and therefore such 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 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. The 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, any Guarantor or any other guarantor of all
or any
part of the Obligations. All amounts payable by any 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/or floating charges and security interests
granted by the Guarantor to secure this Guaranty, do not constitute a
“Fraudulent Conveyance” (as defined below). Consequently, the Guarantor agrees
that if this Guaranty, or any liens and/or floating charges 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/or floating charge and security interest shall be valid and enforceable
only
to the maximum extent that would not cause this Guaranty or such lien and/or
floating charge and security interest to constitute a Fraudulent Conveyance,
and
this Guaranty or the other Loan Documents providing for such liens and/or
floating charges 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.
The
Guarantor hereby agrees that, except as hereinafter provided, its 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.
SECTION
3. Waiver.
The
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 the complete
and
indefeasible payment and satisfaction in full of
all of
the Obligations. The 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 any 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. The Guarantor agrees that this Guaranty constitutes a guarantee
of
payment when due and not of collection.
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SECTION
4. Authorization.
Lender
is hereby authorized, without notice or demand and without affecting the
liability of any 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 any 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 the 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. Security
Interest.
To
secure the payment and performance of the Obligations and the Guarantor’s
obligations hereunder, the Guarantor grants to Lender a continuing perfected
lien and/or floating charge on and security interest in all of such Guarantor’s
right, title and interest in and to the Collateral (as hereinafter described).
The term “Collateral” is and consists of all of the kinds and types of property
described in subsections (A) through (J) hereof, whether now owned or hereafter
at any time arising, acquired or created by such Guarantor and wherever located,
and includes all replacements, additions, accessions, substitutions, and
repairs, relating thereto or therefrom (all of the capitalized terms used
in the
following subsections, unless otherwise defined herein, shall have the meanings
ascribed to such terms under the Uniform Commercial Code as in effect in
the
State of New York, as applicable): (A) Accounts; (B) Deposit Accounts; (C)
Documents of Title; (D) Equipment; (E) General Intangibles; (F) Inventory;
(G)
Investment Property; (H) Intellectual Property; (I) property of the Guarantor
of
the type described in the definition of the term “Other Collateral” contained in
the Loan Agreement; and (J) proceeds of all or any of the property described
above, including, without limitation, the proceeds of any insurance policies
covering any of the above described property. The Guarantor hereby authorizes
Lender to record without such Guarantor’s signature any and all financing
statements deemed necessary or appropriate by Lender to the perfection of
its
security interest in the Collateral. The Guarantor agrees that Lender shall
have
the rights and remedies of a secured party under the Uniform Commercial Code
of
the State of New York, as now existing or hereafter amended, with respect
to all
of the aforesaid property, including, without limitation, thereof, the right
to
sell or otherwise dispose of any or all of such property and apply the proceeds
of such sale to the payment of the Obligations. In addition, at any time
during
the existence of an Event of Default, Lender may, in its discretion, without
notice to any Guarantor and regardless of the acceptance of any security
or
collateral for the payment hereof, appropriate and apply toward the payment
of
the Obligations (i) any indebtedness due from Lender to any Guarantor, and
(ii)
any moneys, credits or other property belonging to any Guarantor, at any
time
held by or coming into the possession of Lender whether for deposit or
otherwise.
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SECTION
6. Guarantor’s
Responsibility.
The
Guarantor hereby assumes responsibility for keeping itself 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 the Guarantor hereby agrees that
Lender shall have no duty to advise any 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 any Guarantor, Lender shall be
under
no obligation to update any such information or to provide any such information
to any Guarantor on any subsequent occasion. The Guarantor further acknowledges
that such 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 such Guarantor’s failure to receive or examine at any time the
Loan Agreement or the other Loan Documents.
SECTION
7. Consent.
The
Guarantor consents and agrees that Lender shall be under no obligation to
marshal any assets in favor of or against such Guarantor or in payment of
any or
all of the Obligations. The Guarantor further agrees that, to the extent
that
Borrower, any Guarantor or any other Person makes a payment or payments to
Lender, or Lender receives any proceeds of 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, such 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 such 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
8. 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.
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SECTION
9. Binding
on Assigns.
This
Guaranty shall be binding upon the Guarantor and upon the heirs, executors,
successors (including, without limitation, any receiver, trustee or
debtor-in-possession of or for such Guarantor) and assigns of such Guarantor,
and shall inure to the benefit of Lender and its successors in interest and
assigns; provided,
however,
that
such
Guarantor’s
obligations hereunder may not be delegated or assigned without Lender’s prior
written consent.
SECTION
10. Representations
and Warranties.
The
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;
(b) No
consent of any person (including, without limitation, creditors of 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 has been duly executed and delivered on behalf of Guarantor, and
constitutes the legal, valid and binding obligation of 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
applicable law, organizational document of Guarantor, or material agreement
by
which Guarantor or its properties or assets are 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
11. Notwithstanding
the provisions of this Guaranty, the
Guarantor is entitled to deal with the Collateral [or only the Accounts and
Deposit Accounts] in the ordinary course of business, until:-
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(a)
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the
Borrower is in breach of the provisions of the Loan
Agreement;
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(b)
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the
Guarantor is in breach of the provisions of this
Guaranty;
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(c)
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the
Guarantor deals with the Collateral [or only the Accounts and Deposit
Accounts] outside the ordinary course of
business;
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(b)
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an
appointment of a receiver to any assets, including the Collateral,
of the
Guarantor or to the assets of the
Borrower;
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(c)
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the
levy of execution against assets of the Guarantor or the
Borrower;
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(d)
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the
application for winding up of the Guarantor or the
Borrower;
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(e)
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the
grant of an order for winding up of the Guarantor or the
Borrower
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SECTION
12. 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 the Guarantor that all of the Obligations
have
been indefeasibly paid and satisfied in full and the Loan Agreement has been
terminated.
SECTION
13. Subrogation.
Any and
all rights of any nature of the Guarantor to subrogation, contribution,
reimbursement or indemnity and any right of such 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 such 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 any Guarantor in violation of this Section
13
shall be
held in trust for and immediately remitted to Lender.
SECTION
14. Subordination.
The
payment of any and all of the indebtedness, liabilities and obligations of
Borrower to the 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”),
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 any 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, the Guarantor will not (i) obtain any Lien and/or floating charge
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 any Guarantor in violation
of
this Section
14
shall be
held in trust for and immediately remitted to Lender.
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SECTION
15. 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 CONFLICTS
OF
LAWS PRINCIPLES.
SECTION
16. CONSENT
TO JURISDICTION; SERVICE OF PROCESS.
THE
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. THE GUARANTOR
ACCEPTS FOR ITSELF, 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. THE GUARANTOR HEREBY WAIVES PERSONAL SERVICE
OF ANY AND ALL PROCESS AND AGREES THAT ALL SUCH SERVICE OF PROCESS MAY BE
MADE
UPON SUCH GUARANTOR BY CERTIFIED OR REGISTERED MAIL, RETURN RECEIPT REQUESTED,
DIRECTED TO SUCH GUARANTOR, AT SUCH GUARANTOR’S ADDRESS SET FORTH ON THE
SIGNATURE PAGE HEREOF OR AS MOST RECENTLY NOTIFIED BY SUCH GUARANTOR IN WRITING,
AND SERVICE SO MADE SHALL BE COMPLETE TEN (10) DAYS AFTER THE SAME HAS BEEN
POSTED AS AFORESAID.
SECTION
17. JURY
TRIAL WAIVER.
THE
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. THE
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. THE GUARANTOR AND LENDER FURTHER WARRANT
AND
REPRESENT THAT EACH HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL, AND
THAT
EACH KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING
CONSULTATION WITH LEGAL COUNSEL.
SECTION
18. Entire
Agreement; Severability.
This
Guaranty represents the entire understanding and agreement between the
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
19. 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, the 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 any 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 any Guarantor therefrom, shall be effective unless the
same
shall be in writing and signed by Lender and the 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 Lender.
[Remainder
of Page Intentionally Left Blank]
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IN
WITNESS WHEREOF, this Guaranty has been duly executed
by the undersigned as of July
___,
2007.
| BORROWER: | |||
| AIRGATE INTERNATIONAL CORPORATION | |||
| By: | /s/Xxxxx Xxxxxx | ||
|
Name: Xxxxx Xxxxxx |
|||
| Title: Vice President | |||
| GUARANTOR: | |||
| AGI LOGISTICS (HONG KONG) LIMITED | |||
| By: | /s/Xxxxxx Xxx | ||
|
Name: Xxxxxx Xxx |
|||
| Title: Managing Director | |||
Signature
Page to Guaranty
(Guarantor)
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Accepted:
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|||||
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BHC
Interim Funding II, L.P.
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|||||
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By:
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BHC
Interim Funding Management, L.L.C.,
its
General Partner
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||||
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By:
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BHC
Investors II, L.L.C., its Managing Member
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||||
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By:
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GHH
Holdings, L.L.C.
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||||
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By:
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/s/Xxxxxx
Xxxxxxxx
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||||
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Name:
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Xxxxxx
X. Xxxxxxxx
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|||
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Title:
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Managing
Member
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Signature
Page to Guaranty
(Guarantors)
HONG
KONG, SAR
On
the
___ day of July
in the
year 2007 before me, the undersigned, personally appeared Xxxxxx Xxx, personally
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
capacity as ______________________ Guarantor (as defined in the within
instrument), and that by his signature on the instrument, the individual,
or the
person upon behalf of which the individual acted, executed the
instrument.
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Notary
Public
|
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Notary
Page to Guaranty (Guarantors)
