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AMENDMENT AND CONFIRMATION OF SUBORDINATION AND
INTERCREDITOR AGREEMENT
THIS AMENDMENT AND CONFIRMATION OF SUBORDINATION AND INTERCREDITOR
AGREEMENT dated as of the 15th day of September, 1999 between GUNTHER
PARTNERS, LLC ("GP"), and JUNE H. GENEEN, PHIL E. GILBERT, JR., THOMAS W.
KEESEE and the UNITED STATES TRUST COMPANY OF NEW YORK, as Co-Executors of
the Estate of Harold S. Geneen, Late of New York, New York (collectively, the
"Estate").
W I T N E S S E T H:
WHEREAS, GP and the Estate are parties to a Subordination and
Intercreditor Agreement (the "Subordination Agreement") dated as of October 2,
1998, pursuant to which the Estate agreed to subordinate its security interest
and lien in and to the Collateral, as defined in the Subordination Agreement,
granted to it by Gunther International, Ltd. ("Gunther") to the lien and
security interest of GP in and to the Collateral granted to it by Gunther
International, Ltd., as security for the Primary Obligations, as defined in the
Subordination Agreement; and
WHEREAS, GP has agreed to (i) relend to Gunther $800,000 which Gunther had
previously repaid under the Priority Loan bringing the outstanding principal
balance of the Property Loan back to $4,000,000 and (ii) modify the repayment
terms of the Priority Loan as provided in the Amendment to Loan and Security
Agreement and Term Note dated as of the date hereof between GP and Gunther (the
"Priority Loan Amendment") (a copy of which Priority Loan Amendment has been
delivered to the Estate); and
WHEREAS, in connection with GP's entering into the Priority Loan
Amendment, GP and the Estate have agreed to amend and confirm the Subordination
Agreement as herein provided.
NOW, THEREFORE, GP, the Estate and, by its consent and acknowledgement
hereto, Gunther hereby agree as follows:
1. Definitions. All capitalized terms used herein which are not
otherwise defined herein shall have the meanings ascribed to them in the
Subordination Agreement.
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2. Amendments to Subordination Agreement.
(i) The term "Loan Agreement" as used in the Subordination Agreement
shall mean the Loan Agreement as modified by the Priority Loan Amendment and as
may be further modified from time to time.
(ii) The term "Priority Note" as used in the Subordination Agreement
shall mean the Priority Note as modified by the Priority Loan Amendment and as
may be further modified from time to time.
3. Ratification. Except as modified hereby, all of the terms, covenants
and conditions of the Subordination Agreement are hereby confirmed, ratified and
approved in all respects and shall continue in full force and effect.
4. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
5. Manner of Execution. Telefacsimile transmissions of any executed
original document and/or retransmission of any executed telefacsimile
transmission shall be deemed to be the same as the delivery of an executed
original. At the request of any party hereto, the other parties shall confirm
telefacsimile transmissions by executing duplicate original documents and
delivering the same to the requesting party or parties.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment and
Confirmation of Subordination Agreement to be duly executed as of the day and
year first above written.
GUNTHER PARTNERS, LLC
By:
- ---------------------------- -------------------------------
Name: Thomas J. Tisch
Manager
- ----------------------------
Name:
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THE ESTATE OF
HAROLD S. GENEEN
By:
- ---------------------------- -----------------------------
Name: June H. Geneen,
Its Co-Executor
- ----------------------------
Name:
- ---------------------------- By: _____________________________
Name: Phil E. Gilbert, Jr.
Its Co-Executor
- ----------------------------
Name:
By: _____________________________
- ----------------------------
Name: Thomas W. Keesee,
Its Co-Executor
- ----------------------------
Name:
By: UNITED STATES TRUST
COMPANY OF NEW YORK,
Its Co-Executor
- ---------------------------- By: _____________________________
Name: Name:
Title:
- ----------------------------
Name:
The undersigned acknowledges and accepts the foregoing as of the 15th day
of September, 1999.
GUNTHER INTERNATIONAL, LTD.
By: ______________________________
Name:
Title:
Hereunto Duly Authorized
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STATE OF NEW YORK )
) ss. October __, 1999
COUNTY OF )
Personally appeared _______________, signer and sealer of the foregoing
instrument personally known to me (or satisfactorily proven) who acknowledged
that he is the __________ of GUNTHER PARTNERS LLC, is duly authorized to execute
said instrument and further acknowledged the same to be his free act and deed as
___________ of GUNTHER PARTNERS, LLC, and the free act and deed of said limited
liability company, before me, the undersigned officer.
Name:
Notary Public
My Commission Expires:
-------------------
STATE OF NEW YORK )
) ss:
COUNTY OF )
On this __ day of October, 1999, before me, the undersigned officer,
personally appeared JUNE H. GENEEN, personally known to me (or satisfactorily
proven) who acknowledged herself to be the person whose name subscribed to the
within instrument and acknowledged that she executed the same for the purposes
therein contained.
In witness whereof I hereunto set my hand.
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Name:
Notary Public
My Commission Expires: _________________
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STATE OF NEW YORK )
) ss:
COUNTY OF )
On this __ day of October, 1999, before me, the undersigned officer,
personally appeared PHIL E. GILBERT, JR., personally known to me (or
satisfactorily proven) who acknowledged himself to be the person whose name
subscribed to the within instrument and acknowledged that he executed the same
for the purposes therein contained.
In witness whereof I hereunto set my hand.
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Name:
Notary Public
My Commission Expires: _________________
STATE OF NEW YORK )
) ss:
COUNTY OF )
On this __ day of October, 1999, before me, the undersigned officer,
personally appeared THOMAS W. KEESEE, personally known to me (or satisfactorily
proven) who acknowledged himself to be the person whose name subscribed to the
within instrument and acknowledged that he executed the same for the purposes
therein contained.
In witness whereof I hereunto set my hand.
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Name:
Notary Public
My Commission Expires: _________________
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STATE OF NEW YORK )
) ss:
COUNTY OF )
On this __ day of October, 1999, before me, the undersigned officer,
personally appeared ____________________, ___________________ of UNITED STATES
TRUST COMPANY OF NEW YORK, personally known to me (or satisfactorily proven) who
acknowledged himself to be the person whose name subscribed to the within
instrument and acknowledged that he executed the same for the purposes therein
contained.
In witness whereof I hereunto set my hand.
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Name:
Notary Public
My Commission Expires: _________________
STATE OF CONNECTICUT )
) ss. October __, 1999
COUNTY OF )
Personally appeared _________________________, signer and sealer of the
foregoing instrument personally known to me (or satisfactorily proven) who
acknowledged that he/she as ___________________ of GUNTHER INTERNATIONAL, LTD.,
is duly authorized to execute said instrument and further acknowledged the same
to be his/her free act and deed as ___________________ of GUNTHER INTERNATIONAL,
LTD., and the free act and deed of said GUNTHER INTERNATIONAL, LTD., before me,
the undersigned officer.
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Name:
Notary Public
My Commission Expires: _________________
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