Exhibit 4.8
SUBORDINATION AGREEMENT
This Subordination Agreement (this "Agreement") dated as of October 8, 2004
by and among Laurus Master Fund, Ltd. ("Senior Lender"), ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (each a "Subordinated Lender" and
collectively, "Subordinated Lenders") and Hesperia Holding, Inc., Hesperia
Truss, Inc. and Pahrump Valley Truss, Inc. (each a "Company" and collectively
"Companies").
BACKGROUND
As an inducement for Senior Lender to provide a credit facility in favor of
Companies, Subordinated Lender has agreed to enter into this Agreement to
provide for the subordination of the "Subordinated Indebtedness" to the "Senior
Indebtedness".
AGREEMENTS
NOW, THEREFORE, for good and valuable consideration, receipt of which is
hereby acknowledged, the parties hereto agree as follows:
1. Definitions.
(a) General Terms. For purposes of this Agreement, the following terms
shall have the following meanings:
"Company" shall have the meaning set forth in the introductory
paragraph of this Agreement.
"Creditor Agreements" shall mean, collectively, the Senior Lending
Agreements and the Subordinated Lending Agreements.
"Creditors" shall mean, collectively, Senior Lender and each
Subordinated Lender and their respective heirs, administrators, executors,
successors and assigns.
"Distribution" shall mean any payment, whether in cash, in kind,
securities or any other property, or security for any such Distribution.
"Documents" shall have the meaning given to the term "Ancillary
Agreements" in the Security Agreement.
"Event" shall have the meaning set forth in Section 2(b)(iii) hereof.
"Holder of Subordinated Indebtedness" or "Subordinated Lender" shall
mean ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and any other
Person(s) at any time or in any manner acquiring any right or interest in any of
the Subordinated Indebtedness, and any heirs, administrators, executors,
successor and assigns of such Person.
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"Person" shall mean an individual, a partnership, a corporation
(including a business trust), a joint stock company, a trust, an unincorporated
association, a joint venture, a limited liability company, a limited liability
partnership or other entity, or a government or any agency, instrumentality or
political subdivision thereof.
"Security Agreement" shall mean the Security Agreement dated as of the
date hereof among Companies and Senior Lender, as the same may be amended,
supplemented, modified or restated from time to time.
"Senior Indebtedness" shall mean all Obligations of any kind owed by
each Company to Senior Lender from time to time under or pursuant to any of the
Senior Lending Agreements including, without limitation, all principal, interest
accruing thereon, charges, expenses, fees and other sums (including all
interest, charges, expenses, fees and other sums accruing after commencement of
any case, proceeding or other action relating to the bankruptcy, insolvency or
reorganization of any Company) chargeable to Companies by Senior Lender, and
reimbursement, indemnity or other obligations due and payable to Senior Lender.
Senior Indebtedness shall continue to constitute Senior Indebtedness,
notwithstanding the fact that such Senior Indebtedness or any claim for such
Senior Indebtedness is subordinated, avoided or disallowed under the federal
Bankruptcy Code or other applicable law. Senior Indebtedness shall also include
any indebtedness of any Company incurred in connection with a refinancing of the
Senior Indebtedness under the Senior Lending Agreements.
"Senior Lender" shall have the meaning set forth in the introductory
paragraph of this Agreement.
"Senior Lending Agreements" shall mean collectively the Security
Agreement and the other Documents, each as from time to time in effect.
"Subordinated Indebtedness" shall mean all principal, interest and
other amounts payable or chargeable to any Company by any Subordinated Lender,
including, without limitation, in connection with each Subordinated Note and any
other Subordinated Lending Agreement.
"Subordinated Lending Agreements" shall mean, collectively, the
Subordinated Notes and all promissory notes, agreements, documents and
instruments now or at any time hereafter executed and/or delivered by any
Company or any other person to, with or in favor of any Subordinated Lender in
connection therewith or related thereto, as all of the foregoing now exist or
may hereafter be amended, modified, supplemented, extended, renewed, restated or
replaced.
"Subordinated Notes" shall mean collectively, [______________________]
together with any extensions thereof, securities issued in exchange therefor or
modifications or amendments thereto or replacements and substitutions therefor.
(b) Other Terms. Capitalized terms not otherwise defined herein shall
have the meanings given to them in the Security Agreement.
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(c) Certain Matters of Construction. The terms "herein," "hereof" and
"hereunder" and other words of similar import refer to this Agreement as a whole
and not to any particular section, paragraph or subdivision. Any pronoun used
shall be deemed to cover all genders. Wherever appropriate in the context, terms
used herein in the singular also include the plural and vice versa. All
references to statutes and related regulations shall include any amendments of
same and any successor statutes and regulations. Except as expressly set forth
herein, all references to any instruments or agreements, including, without
limitation, references to any of Creditor Agreements shall include any and all
modifications or amendments thereto and any and all extensions or renewals
thereof.
2. Covenants. Each Company and each Holder of Subordinated Indebtedness
hereby covenant that until the Senior Indebtedness shall have been paid in full
and satisfied in cash and the Security Agreement shall have been irrevocably
terminated, all in accordance with the terms of the Security Agreement, each
will comply with such of the following provisions as are applicable to it:
(a) Transfers. Each Holder of Subordinated Indebtedness covenants that
any transferee from it of any Subordinated Indebtedness shall, prior to
acquiring such interest, execute and deliver a counterpart of this Agreement to
each other party hereto.
(b) Subordination Provisions. To induce Senior Lender to enter into
the Security Agreement and to make loans and advances thereunder,
notwithstanding any other provision of the Subordinated Indebtedness to the
contrary, any Distribution with respect to the Subordinated Indebtedness is and
shall be expressly junior and subordinated in right of payment to all amounts
due and owing upon all Senior Indebtedness outstanding from time to time.
Specifically, but not by way of limitation:
(i) Payments. No Company shall make any Distribution on the
Subordinated Indebtedness until such time as the Senior Indebtedness shall have
been paid in full in cash and the Security Agreement shall have been irrevocably
terminated.
(ii) Limitation on Acceleration. No Holder of Subordinated
Indebtedness shall be entitled to accelerate the maturity of the Subordinated
Indebtedness, exercise any remedies or commence any action or proceeding to
recover any amounts due or to become due with respect to Subordinated
Indebtedness until such time as the Senior Indebtedness shall have been paid in
full in cash and the Security Agreement shall have been irrevocably terminated.
(iii) Prior Payment of Senior Indebtedness in Bankruptcy, etc. In
the event of any insolvency or bankruptcy proceedings relative to any Company or
its property, or any receivership, liquidation, reorganization or other similar
proceedings in connection therewith, or, in the event of any proceedings for
voluntary liquidation, dissolution or other winding up of any Company or
distribution or marshalling of its assets or any composition with creditors of
any Company, whether or not involving insolvency or bankruptcy, or if any
Company shall cease its operations, call a meeting of its creditors or no longer
do business as a going concern (each individually or collectively, an "Event"),
then all Senior Indebtedness shall be paid in full and satisfied in cash and the
Security Agreement irrevocably terminated before any Distribution shall be made
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on account of any Subordinated Indebtedness. Any such Distribution which would,
but for the provisions hereof, be payable or deliverable in respect of the
Subordinated Indebtedness, shall be paid or delivered directly to Senior Lender
or its representatives, in the proportions in which they hold the same, until
amounts owing upon Senior Indebtedness shall have been paid in full in cash and
the Security Agreement irrevocably terminated.
(iv) Power of Attorney. To enable Senior Lender to assert and
enforce its rights hereunder in any proceeding referred to in Section 2(b)(iii)
or upon the happening of any Event, Senior Lender or any Person whom it may
designate is hereby irrevocably appointed attorney in fact for each Subordinated
Lender with full power to act in the place and stead of such Subordinated Lender
including the right to make, present, file and vote such proofs of claim against
any Company on account of all or any part of the Subordinated Indebtedness as
Senior Lender may deem advisable and to receive and collect any and all
dividends or other payments made thereon and to apply the same on account of the
Senior Indebtedness. Each Subordinated Lender will execute and deliver to Senior
Lender such instruments as may be required by Senior Lender to enforce any and
all Subordinated Indebtedness, to effectuate the aforesaid power of attorney and
to effect collection of any and all dividends or other payments which may be
made at any time on account thereof, and each Subordinated Lender hereby
irrevocably appoints Senior Lender as the lawful attorney and agent of such
Subordinated Lender to execute financing statements on behalf of such
Subordinated Lender and hereby further authorizes Senior Lender to file such
financing statements in any appropriate public office.
(v) Payments Held in Trust. Should any Distribution or the
proceeds thereof, in respect of the Subordinated Indebtedness, be collected or
received by any Subordinated Lender or any Affiliate (as such term is defined in
Rule 405 of Regulation C adopted by the Securities and Exchange Commission
pursuant to the Securities Act of 1933) of a Subordinated Lender at a time when
such Subordinated Lender is not permitted to receive any such Distribution or
proceeds thereof, then such Subordinated Lender will forthwith deliver, or cause
to be delivered, the same to Senior Lender in precisely the form held by such
Subordinated Lender (except for any necessary endorsement) and until so
delivered, the same shall be held in trust by such Subordinated Lender, or any
such Affiliate, as the property of Senior Lender and shall not be commingled
with other property of such Subordinated Lender or any such Affiliate.
(vi) Subrogation. Subject to the prior payment in full in cash of
the Senior Indebtedness and the irrevocable termination of the Security
Agreement, to the extent that Senior Lender has received any Distribution on the
Senior Indebtedness which, but for this Agreement, would have been applied to
the Subordinated Indebtedness, each Subordinated Lender shall be subrogated to
the then or thereafter rights of Senior Lender including, without limitation,
the right to receive any Distribution made on the Senior Indebtedness until the
principal of, interest on and other charges due under the Subordinated
Indebtedness shall be paid in full; and, for the purposes of such subrogation,
no Distribution to Senior Lender to which any Subordinated Lender would be
entitled except for the provisions of this Agreement shall, as between Company,
its creditors (other than Senior Lender) and such Subordinated Lender, be deemed
to be a Distribution by Company to or on account of Senior Indebtedness, it
being understood that the provisions hereof are and are intended solely for the
purpose of defining the relative rights of Subordinated Lenders on the one hand,
and Senior Lender on the other hand.
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(vii) Scope of Subordination. The provisions of this Agreement
are solely to define the relative rights of any Holder of Subordinated
Indebtedness and Senior Lender. Nothing in this Agreement shall impair, as
between a Company and Subordinated Lenders the unconditional and absolute
obligation of Companies to punctually pay the principal, interest and any other
amounts and obligations owing under each Subordinated Note and the other
Subordinated Lending Agreements in accordance with the terms thereof, subject to
the rights of Senior Lender under this Agreement.
3. Miscellaneous.
(a) Provisions of Subordinated Notes. From and after the date hereof,
each Company and each Subordinated Lender shall cause each Subordinated Note to
contain a provision to the following effect:
"This Note is subject to the
Subordination Agreement, dated as of
October 8, 2004, among the Maker, the
Payee and Laurus Master Fund, Ltd.,
under which this Note and the Maker's
obligations hereunder are subordinated
in the manner set forth therein to the
prior payment of certain obligations to
the holders of Senior Indebtedness as
defined therein."
Proof of compliance with the foregoing shall be promptly given to
Senior Lender.
If requested by Senior Lender, each Holder of Subordinated Indebtedness
shall transfer, assign and endorse over to Senior Lender each Subordinated Note,
as collateral for the obligations hereunder of any Holders of Subordinated
Indebtedness.
Each Subordinated Note will be held by Senior Lender in accordance with the
terms of this Agreement.
(b) Additional Agreements. In the event that the Senior Indebtedness
is refinanced in full, each Subordinated Lender agrees at the request of such
refinancing party to enter into a subordination agreement on terms substantially
similar to this Agreement.
(c) Survival of Rights. The right of Senior Lender to enforce the
provisions of this Agreement shall not be prejudiced or impaired by any act or
omitted act of any Company or Senior Lender including forbearance, waiver,
consent, compromise, amendment, extension, renewal, or taking or release of
security in respect of any Senior Indebtedness or noncompliance by any Company
with such provisions, regardless of the actual or imputed knowledge of Senior
Lender.
(d) Bankruptcy Financing Issues. (i) (i) This Agreement shall continue
in full force and effect after the filing of any petition ("Petition") by or
against any Company under the United States Bankruptcy Code (the "Code") and all
converted or succeeding cases in respect thereof. All references herein to a
Company shall be deemed to apply to such Company as debtor-in-possession and to
a trustee for such Company. If any Company shall become subject to a proceeding
under the Code, and if Senior Lender shall desire to permit the use of cash
collateral or to provide post-Petition financing from Senior Lender to such
Company under the Code, each Subordinated Lender agrees as follows: (1) adequate
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notice to such Subordinated Lender shall be deemed to have been provided for
such consent or post-Petition financing if such Subordinated Lender receives
notice thereof three (3) Business Days (or such shorter notice as is given to
Senior Lender) prior to the earlier of (a) any hearing on a request to approve
such post-Petition financing or (b) the date of entry of an order approving same
and (2) no objection will be raised by such Subordinated Lender to any such use
of cash collateral or such post-Petition financing from Senior Lender.
(ii) No Subordinated Lender shall join in, solicit any other
person to, or act to cause the commencement of, any case involving any Company
under any state or federal bankruptcy or insolvency laws or seek the appointment
of a receiver for the affairs or property of Company until such time as the
Senior Indebtedness shall have been paid in full in cash and the Senior Lending
Agreements shall have been irrevocably terminated.
(e) Receipt of Agreements. Each Subordinated Lender hereby
acknowledges that it has delivered to Senior Lender a correct and complete copy
of the Subordinated Lending Agreements as in effect on the date hereof. Each
Subordinated Lender, solely for the purposes of this Agreement, hereby
acknowledges receipt of a correct and complete copy of each of the Senior
Lending Agreements as in effect on the date hereof. (f) No Amendment of
Subordinated Lending Agreements. So long as the Security Agreement remains in
effect, no Company nor any Holder of Subordinated Indebtedness shall enter into
any amendment to or modification of any Subordinated Note or any other
Subordinated Lending Agreement without the prior written consent of Senior
Lender.
(g) Amendments to Senior Lending Agreements. Nothing contained in this
Agreement, or in any other agreement or instrument binding upon any of the
parties hereto, shall in any manner limit or restrict the ability of Senior
Lender from increasing or changing the terms of the loans under the Senior
Lending Agreements, or to otherwise waive, amend or modify the terms and
conditions of the Senior Lending Agreements, in such manner as Senior Lender and
Companies shall mutually determine. Each Holder of Subordinated Indebtedness
hereby consents to any and all such waivers, amendments, modifications and
compromises, and any other renewals, extensions, indulgences, releases of
collateral or other accommodations granted by Senior Lender to any Company from
time to time, and agrees that none of such actions shall in any manner affect or
impair the subordination established by this Subordination Agreement in respect
of the Subordinated Indebtedness.
(h) Notice of Default. The Holders of Subordinated Indebtedness shall notify
Senior Lender of the occurrence of any default under any Subordinated Note or
any other Subordinated Lending Agreement.
(i) Notices. Any notice or other communication required or permitted pursuant to
this Agreement shall be deemed given (a) when personally delivered to any
officer of the party to whom it is addressed, (b) on the earlier of actual
receipt thereof or three (3) days following posting thereof by certified or
registered mail, postage prepaid, or (c) upon actual receipt thereof when sent
by a recognized overnight delivery service or (d) upon actual receipt thereof
when sent by telecopier to the number set forth below with electronic
confirmation of receipt, in each case addressed to each party at its address or
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telecopier number set forth below or at such other address or telecopier number
as has been furnished in writing by a party to the other by like notice:
If to Senior Lender: Laurus Master Fund, Ltd.
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: Loeb & Loeb LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to Subordinated
Lenders:
Attention:
Telephone:
Facsimile:
with a copy to:
Attention:
Telephone:
Facsimile:
If to any Company: Hesperia Holding, Inc.
▇▇▇▇ ▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Attention:
Telephone:
Facsimile:
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(j) Books and Records. Each Subordinated Lender shall (a) make
notations on the books of such Subordinated Lender beside all accounts or on
other statements evidencing or recording any Subordinated Indebtedness to the
effect that such Subordinated Indebtedness is subject to the provisions of this
Agreement, (b) furnish Senior Lender, upon request from time to time, a
statement of the account between such Subordinated Lender and Company and (c)
give Senior Lender, upon its request, full and free access to such Subordinated
Lender's books pertaining only to such accounts with the right to make copies
thereof.
(k) Binding Effect; Other. This Agreement shall be a continuing
agreement, shall be binding upon and shall inure to the benefit of the parties
hereto from time to time and their respective heirs, administrators, executors,
successors and assigns, shall be irrevocable and shall remain in full force and
effect until the Senior Indebtedness shall have been satisfied or paid in full
in cash and the Security Agreement shall have been irrevocably terminated, but
shall continue to be effective, or be reinstated, as the case may be, if at any
time payment, or any part thereof, of any amount paid by or on behalf of
Companies with regard to the Senior Indebtedness is rescinded or must otherwise
be restored or returned upon the insolvency, bankruptcy, dissolution,
liquidation or reorganization of any Company, or upon or as a result of the
appointment of a receiver, intervenor or conservator of, or trustee, custodian,
or similar officer, for any Company or any substantial part of its property, or
otherwise, all as though such payments had not been made. No action which Senior
Lender or any Company may take or refrain from taking with respect to the Senior
Indebtedness, including any amendments thereto, shall affect the provisions of
this Agreement or the obligations of any Subordinated Lender hereunder. Any
waiver or amendment hereunder must be evidenced by a signed writing of the party
to be bound thereby, and shall only be effective in the specific instance. This
Agreement shall be governed by and construed in accordance with the laws of the
State of New York. The headings in this Agreement are for convenience of
reference only, and shall not alter or otherwise affect the meaning hereof.
(l) Security. Until the Senior Indebtedness shall have been paid in
full in cash and the Security Agreement shall have been irrevocably terminated,
each Subordinated Lender hereby disclaims any and all security interests, liens
or other encumbrances on or in any property (personal or real) of any Company.
(m) No Challenge to Validity, Etc. of Liens. Notwithstanding anything
to the contrary expressed or implied in this Agreement, each Holder of
Subordinated Indebtedness agrees that it will not at any time contest the
validity, perfection, priority or enforceability of any Liens on the Collateral,
or Senior Lender's right to foreclosure, realization upon, levy upon, or
liquidation of any of the Collateral.
4. Representations and Warranties.
(a) Each Subordinated Lender represents and warrants to Senior Lender
that such Subordinated Lender is the holder of the Subordinated Indebtedness.
Each Subordinated Lender agrees that such Subordinated Lender shall not assign
or transfer any of the Subordinated Indebtedness without (i) prior notice being
given to Senior Lender and (ii) such assignment or transfer being made expressly
subject to the terms of this Agreement. Each Subordinated Lender further
warrants to Senior Lender that such Subordinated Lender has full right, power
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and authority to enter into this Agreement and, to the such extent such
Subordinated Lender is an agent or trustee for other parties, that this
Agreement shall fully bind all such other parties.
(b) Senior Lender represents and warrants to each Subordinated Lender
that Senior Lender is the holder of the Senior Indebtedness. Senior Lender
further warrants to each Subordinated Lender that it has full right, power and
authority to enter into this Agreement and, to the extent Senior Lender is an
agent or trustee for other parties, that this Agreement shall fully bind all
such other parties.
5. Proceedings. ANY JUDICIAL PROCEEDING BROUGHT BY OR AGAINST ANY
SUBORDINATED LENDER OR ANY COMPANY WITH RESPECT TO THIS AGREEMENT OR ANY RELATED
AGREEMENT MAY BE BROUGHT IN ANY COURT OF COMPETENT JURISDICTION IN STATE OF NEW
YORK, UNITED STATES OF AMERICA, AND, BY EXECUTION AND DELIVERY OF THIS AGREEMENT
EACH PARTY HERETO ACCEPTS FOR THEMSELVES AND IN CONNECTION WITH THEIR
PROPERTIES, GENERALLY AND UNCONDITIONALLY, THE NON-EXCLUSIVE JURISDICTION OF THE
AFORESAID COURTS, AND IRREVOCABLY AGREE TO BE BOUND BY ANY FINAL JUDGMENT
RENDERED THEREBY IN CONNECTION WITH THIS AGREEMENT. NOTHING HEREIN SHALL AFFECT
THE RIGHT TO SERVE PROCESS IN ANY MANNER PERMITTED BY LAW OR SHALL LIMIT THE
RIGHT OF SENIOR LENDER TO BRING PROCEEDINGS AGAINST ANY SUBORDINATED LENDER OR
ANY COMPANY IN ANY COURTS OF ANY OTHER JURISDICTION. ANY JUDICIAL PROCEEDING BY
ANY SUBORDINATED LENDER OR ANY COMPANY AGAINST SENIOR LENDER INVOLVING, DIRECTLY
OR INDIRECTLY, ANY MATTER OR CLAIM IN ANY WAY ARISING OUT OF, RELATED TO OR
CONNECTED WITH THIS AGREEMENT OR ANY RELATED AGREEMENT, SHALL BE BROUGHT ONLY IN
A COURT LOCATED IN ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇; PROVIDED THAT
NOTWITHSTANDING THE FOREGOING, IF IN ANY JUDICIAL PROCEEDING BY OR AGAINST ANY
SUBORDINATED LENDER OR ANY COMPANY THAT IS BROUGHT IN ANY OTHER COURT SUCH COURT
DETERMINES THAT SENIOR LENDER IS AN INDISPENSABLE PARTY, SUCH SUBORDINATED
LENDER OR EACH COMPANY SHALL BE ENTITLED TO JOIN OR INCLUDE EACH PARTY HERETO IN
SUCH PROCEEDINGS IN SUCH OTHER COURT. EACH SUBORDINATED LENDER AND EACH COMPANY
WAIVE ANY OBJECTION TO JURISDICTION AND VENUE OF ANY ACTION INSTITUTED HEREUNDER
AND SHALL NOT ASSERT ANY DEFENSE BASED ON LACK OF JURISDICTION OR VENUE OR BASED
UPON FORUM NON CONVENIENS.
6. Waiver Of Jury Trial. EACH PARTY HERETO HEREBY EXPRESSLY WAIVES ANY
RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION (A)
ARISING UNDER THIS AGREEMENT OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT
EXECUTED OR DELIVERED IN CONNECTION HEREWITH, OR (B) IN ANY WAY CONNECTED WITH
OR RELATED OR INCIDENTAL TO THE DEALINGS OF ANY CREDITOR OR COMPANY OR ANY OF
THEM WITH RESPECT TO THIS AGREEMENT OR ANY OTHER INSTRUMENT, DOCUMENTS OR
AGREEMENT EXECUTED OR DELIVERED BY THEM IN CONNECTION HEREWITH, OR THE
TRANSACTIONS RELATED HERETO OR THERETO, IN EACH CASE WHETHER NOW EXISTING OR
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HEREAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT OR TORT OR OTHERWISE AND
EACH PARTY HERETO HEREBY AGREES AND CONSENTS THAT ANY CLAIM, DEMAND, ACTION OR
CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT JURY, AND THAT ANY OF
THEM MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION WITH ANY COURT
AS WRITTEN EVIDENCE OF THEIR CONSENT TO THE WAIVER OF THEIR RIGHT TO TRIAL BY
JURY.
7. Company Acknowledgement. Each Company agrees that (a) nothing contained
in this Agreement shall be deemed to amend, modify, supercede or otherwise alter
the terms of the respective agreements between any Company and each Creditor and
(b) this Agreement is solely for the benefit of the Creditors and shall not give
any Company, its successors or assigns or any other person any rights vis-a-vis
any Creditor.
8. Counterparts; Facsimile. This Agreement may be executed by the parties
hereto in one or more counterparts, each of which shall be deemed an original
and all of which when taken together shall constitute one and the same
agreement. Any signature delivered by a party by facsimile transmission shall be
deemed to be an original signature hereto.
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IN WITNESS WHEREOF, the undersigned have entered into this Agreement as of
this 8th day of October, 2004.
LAURUS MASTER FUND, LTD.,
as Senior Lender
By: /s/ ▇▇▇▇▇ GRIN
--------------
Name: ▇▇▇▇▇ Grin
Title: Partner
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, as a Subordinated Lender
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
-------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, as a Subordinated Lender
/s/ ▇▇▇▇ ▇▇▇▇▇
---------------
▇▇▇▇ ▇▇▇▇▇, as a Subordinated Lender
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, as a Subordinated Lender
HESPERIA HOLDING, INC.,
-----------------------
as a Company
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chief Executive Officer
[Signature Page to Subordination Agreement]
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HESPERIA TRUSS, INC.,
as a Company
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chief Executive Officer
PAHRUMP VALLEY TRUSS, INC.,
as a Company
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chief Executive Officer
[Signature Page to Subordination Agreement]
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