Contract
This
Note
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
Note,
(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.
THIS
NOTE
HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY
STATE SECURITIES LAWS. NO TRANSFER OF THIS NOTE SHALL BE VALID OR EFFECTIVE
UNLESS MADE IN ACCORDANCE WITH THE APPLICABLE REQUIREMENTS OF THE SECURITIES
ACT
OF 1933, AS AMENDED, AND STATE SECURITIES LAWS, OR ANY AVAILABLE EXEMPTION
THEREUNDER.
SENIOR
SECURED TERM NOTE
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$3,500,000.00
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July
17, 2007
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FOR
VALUE
RECEIVED, Airgate International Corporation, a New York corporation (the
“Borrower”),
hereby promises to pay to the order of BHC
INTERIM FUNDING II, L.P.
(together with its successors in interest or assigns, if any, the “Lender”),
the
principal sum of Three Million Five Hundred Thousand Dollars ($3,500,000),
together with interest thereon at the interest rates and at the times
hereinafter provided.
1. Loan
Agreement.
This
Senior Secured Term Note (“Term
Note”)
is
delivered pursuant and subject to the Loan and Security Agreement (as the same
may be amended, restated, supplemented or otherwise modified from time to time,
the “Loan
Agreement”),
dated
as of the date hereof, by and among the Borrower, the Guarantors and the Lender.
All terms and conditions of the Loan Agreement are hereby incorporated by
reference into this Term Note, and reference is made to the Loan Agreement
for,
among other things, the security for this Term Note, Events of Default
hereunder, and the Lender’s rights and remedies upon the occurrence of any Event
of Default. All capitalized terms used herein shall have the same meanings
ascribed to them in the Loan Agreement unless otherwise expressly
stated.
2. Interest
and Fees.
(a) Rates
of Interest; Computation.
The
Term Loan shall bear interest on the unpaid principal balance thereof from
the
date of the borrowing thereof to the date of payment thereof, as set forth
in
Section
2.3
of the
Loan Agreement. All interest payable hereunder shall be computed on the basis
of
a 360-day year for the actual number of days elapsed in the period during which
it accrues.
(b) Interest
Payments.
The
Borrower shall pay interest on the unpaid principal balance of the Term Loan
at
the interest rates set forth in Section
2.3
of the
Loan Agreement. Interest shall be paid by the Borrower monthly in arrears on
the
first Business Day of each month by automatic wire transfer to the Lender’s bank
account commencing on [August] 1,
2007,
and on
the date of any prepayment of the Term Loan and at maturity, whether by
acceleration or otherwise.
(c) Post
Default Interest.
Any
installment of principal of the Term Loan not paid when due and, to the extent
permitted by applicable law, any installment of interest thereon not paid when
due at any time, whether by acceleration, after commencement of bankruptcy
or
insolvency proceedings or otherwise, shall continue to bear interest payable
on
demand at the Default Rate.
(d) Fees.
The
Borrower shall pay, when due, all fees set forth in the Loan Agreement and
the
other Loan Documents.
3. Payments
of Principal; Optional Prepayments.
The
Term Loan shall be due and payable in full on the Maturity Date. The Borrower
shall have the obligation to make mandatory payments of principal of the Term
Loan, and the right to make voluntary prepayments of principal of the Term
Loan,
in accordance with Section
2.5
of the
Loan Agreement.
4. Acceleration.
The
outstanding principal balance of, and any accrued and unpaid interest on, the
Term Loan shall be payable in full upon the occurrence and during the
continuance of an Event of Default and acceleration of the Obligations pursuant
to Section
7.2
of the
Loan Agreement.
5. Payments.
All
payments of principal, interest, fees, costs and expenses hereunder shall be
made by the Borrower without defense, set off or counterclaim and in same day
funds and delivered to the Lender at its office (or wire transferred to the
Lender’s bank account) specified in the Loan Agreement. The Borrower hereby
authorizes the Lender, at the Lender’s option, to draw against any deposit or
disbursement account of the Borrower and maintained with the Lender (or subject
to a control agreement in favor of the Lender), on account of such amounts,
when
any payment of same shall be due.
6. Invalidity.
The
invalidity, illegality or unenforceability in any jurisdiction of any provision
in or obligation under this Term Note shall not affect or impair the validity,
legality or enforceability of the remaining provisions or obligations under
this
Term Note or of such provision or obligation in any other
jurisdiction.
7. Collection
Costs.
Without
limiting the generality of Section
8.3
of the
Loan Agreement, the Borrower shall pay, on demand, all reasonable fees, costs
and expenses incurred by the Lender after an Event of Default in connection
with
any action, proceeding or effort taken or commenced by the Lender to enforce
this Term Note, including, without limitation, reasonable attorney’s fees and
expenses.
8. Waivers;
Amendments.
The Borrower hereby waives presentment, demand, protest and notice of
nonpayment. The liabilities and obligations of the Borrower hereunder shall
be
unconditional without regard to the liability or obligations of any other party.
No failure or delay on the part of the 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 Term Note, or consent to any
departure by the Borrower therefrom, shall be effective unless the same shall
be
in writing and signed by the Lender and the Borrower. 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.
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9. Security.
The
payment of this Term Note is secured as provided in the Loan
Agreement.
10. Seniority.
The
payment of this Term Note is senior (other than as provided in the Intercreditor
Agreement) to all other obligations of the Borrower, whether now existing or
hereinafter incurred.
11. GOVERNING
LAW; CONSENT TO JURISDICTION.
THE
VALIDITY AND EFFECT OF THIS TERM NOTE 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 ANY CONFLICT OF LAWS PRINCIPLES. THE BORROWER 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
THE LENDER’S ELECTION, ALL ACTIONS OR PROCEEDINGS ARISING OUT OF OR RELATING TO
THIS TERM NOTE, OR THE OTHER LOAN DOCUMENTS SHALL BE LITIGATED IN SUCH COURTS.
THE BORROWER ACCEPTS FOR ITSELF AND IN CONNECTION WITH ITS PROPERTIES, 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 TERM NOTE, THE OTHER
LOAN DOCUMENTS OR THE OBLIGATIONS. IF THE BORROWER PRESENTLY IS, OR IN THE
FUTURE BECOMES, A NONRESIDENT OF THE STATE OF NEW YORK, THE BORROWER HEREBY
WAIVES PERSONAL SERVICE OF ANY AND ALL PROCESS AND AGREES THAT ALL SUCH SERVICE
OF PROCESS MAY BE MADE UPON THE BORROWER BY CERTIFIED OR REGISTERED MAIL, RETURN
RECEIPT REQUESTED, DIRECTED TO THE BORROWER, AT THE BORROWER’S ADDRESS SET FORTH
IN SECTION
8.6
OF THE
LOAN AGREEMENT OR AS MOST RECENTLY PROVIDED BY THE BORROWER TO THE LENDER IN
WRITING, AND SERVICE SO MADE SHALL BE COMPLETE TEN (10) DAYS AFTER THE SAME
HAS
BEEN POSTED AS AFORESAID.
12. JURY
TRIAL WAIVER.
THE
BORROWER AND THE LENDER
HEREBY
WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION
BASED UPON OR ARISING OUT OF THIS TERM NOTE OR ANY OTHER DOCUMENTS EXECUTED
IN
CONNECTION WITH THIS TERM NOTE OR ANY DEALINGS BETWEEN THE BORROWER AND THE
LENDER RELATING TO THIS TERM NOTE. THE BORROWER AND THE 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 TERM NOTE AND THE
OTHER LOAN DOCUMENTS AND THAT EACH WILL CONTINUE TO RELY ON THE WAIVER IN ITS
RELATED FUTURE DEALINGS. THE BORROWER AND THE LENDER WARRANT AND REPRESENT
THAT
EACH KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING
CONSULTATION WITH LEGAL COUNSEL.
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13. Successors
in Interest or Assigns.
All of
the Lender’s rights hereunder shall accrue for the benefit of the Lender, its
successors in interest or assigns.
[Remainder
of Page Intentionally Left Blank]
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IN
WITNESS WHEREOF, and intending to be legally bound hereby, the Borrower has
executed this Term Note the day and year first above written.
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AIRGATE
INTERNATIONAL CORPORATION
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| By: |
/s/Xxxxx
Xxxxxx
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Name:
Xxxxx
Xxxxxx
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Title:
Vice
President
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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 capacity as an authorized
officer of the Borrower (as defined in the within instrument), and that by
his
signature on the instrument, he executed the instrument.
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Notary
Public
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Signature
Page to Senior Secured Term Note
