SUBORDINATION AGREEMENT
This Subordination Agreement ("Agreement"), dated as of April 15,
1999, is entered into by and between Castle Creek Technology Partners LLC,
Marshall Capital Management, Inc., and Capital Ventures International (all
such entities collectively, the "Holders", and individually, a "Holder")
and LaSalle National Bank, a national banking association, and its
successors and assigns (the "Bank").
W I T N E S S E T H:
WHEREAS, the Holders desire to enter into a Securities Purchase
Agreement, (the "SPA") with Westell Technologies, Inc., a Delaware
corporation ("WTI") and various other documents and instruments in
conjunction therewith (collectively with the SPA, the "Subordinate
Documents"), including certain 6% Subordinated Convertible Debentures
issued by WTI (each, a "Debenture" and collectively, the "Debenture"), a
Stock Purchase Warrant ("Warrant") and a Registration Rights Agreement (the
"Registration Rights Agreement"). Each Holder represents and warrants that
it has attached hereto, as Exhibit A, true and correct copies of all the
Subordinate Documents.
WHEREAS, WTI, Westell, Inc., Westell International, Inc.
(collectively, the "Pledging Borrowers") and Conference Plus, Inc.
(Conference Plus, together with the Pledging Borrowers, collectively, the
"Borrowers") and the Bank are parties to that certain Loan and Security
Agreement dated as of October 13, 1998 (as the same was amended by
Amendments to Loan and Security Agreement dated as of February 24, 1999 and
April 15, 1999, and as the same may be amended, modified or restated from
time to time hereafter, the "Loan Agreement"), pursuant to which the Bank
has made and may continue to make loans and advances to the Borrowers and
issue letters of credit for the account of the Borrowers ("Letters of
Credit"). Capitalized terms not otherwise defined herein shall have the
meanings ascribed to them in the Loan Agreement.
WHEREAS, the Loan Agreement provides that the Subordinate
Documents may only be executed, delivered and/or issued if this
Subordination Agreement is executed for the benefit of the Bank.
NOW, THEREFORE, for good and valuable consideration, receipt and
sufficiency of which are hereby acknowledged by the Holders, and in order
to induce the Bank to continue to make loans and issue Letters of Credit
under the Loan Agreement, and to better secure the Bank in respect of the
foregoing, each Holder individually and severally agrees with the Bank as
hereinafter set forth.
1. Standby; Subordination. Except for "Permitted Payments" (as
hereinafter defined) and for the exercise of rights as set forth in Section
4 hereof, all "Subordinated Debt" (as defined below) is hereby subordinated
to all the "Senior Debt" (as defined below), and each Holder agrees that
the Holder will not ask, demand, sue for, take or receive from any of the
Borrowers, by setoff or in any other manner, the whole or any part of any
monies which may now or hereafter be owing by any of the Borrowers,
including without limitation, monies owing by WTI under any of the
Subordinate Documents, or any successor or assign of any of the Borrowers,
including, without limitation, a receiver, trustee or debtor in possession
(the term "Borrowers" hereinafter shall include any such successor or
assign of any of the Borrowers), to any Holders or be owing by any other
person, firm, partnership or corporation for the benefit of any of the
Borrowers, including, without limitation, the taking of any negotiable
instruments evidencing such amounts (all such indebtedness, obligations and
liabilities being hereinafter referred to as the "Subordinated Debt"),
unless and until all Obligations, whether now existing or hereafter
arising, including, without limitation, the undrawn face amount of all
Letters of Credit, shall have been fully paid and
satisfied with interest (all such Obligations, indebtedness and liabilities
of the Borrowers to the Bank are hereinafter referred to as the "Senior
Debt"), and all obligations of the Bank existing pursuant to the Loan
Agreement to advance funds have been terminated; provided, however, that
notwithstanding anything in this Agreement to the contrary, Holders may at
all times (A) receive, retain and take action to obtain (i) shares of
Series A Common Stock upon conversion of the Debentures, as interest on the
Debentures or otherwise in accordance with the terms of the Debentures,
(ii) Cap Debentures (as defined in the Debentures) issued pursuant to the
Debentures, and Debentures in exchange for the Cap Debentures, in
accordance with the terms of the Cap Debentures and (iii) PIK Debentures
(as defined in the Debentures) issued pursuant to the Debentures, and
Holder shall not be deemed to have transferred to the Bank any rights or
agreed to take any actions with respect to the foregoing; and (B) Holders
may seek specific enforcement of WTI's nonmonetary obligations under the
Subordinate Documents (subject however, to Section 4 with respect to
Collateral).
2. Permitted Payments. Any other terms and provisions of this
Agreement regarding payment of the Subordinated Debt notwithstanding, the
Holders shall be entitled to accept from WTI and retain for their own
account the following payments (collectively, the "Permitted Payments"):
(i) payments to be made pursuant to Section 7.5 of the Debentures
(for a period not to exceed thirty (30) days and in an amount equal to one
percent (1%) per day of the aggregate principal amount on the Debentures);
(ii) payments of principal and accrued and unpaid interest on the
Debentures on their "Scheduled Maturity Date" (as such term is defined in
the Debenture);
(iii) payments of principal and accrued and unpaid interest on
the Cap Debentures on the maturity of the Cap Debentures in accordance with
their terms;
(iv) payments of interest under the Debentures (including
interest payments pursuant to Section 10.2 of the Debenture); and
(v) Conversion Default Payments (as defined in the Debenture),
pursuant to Section 6.1 of the Debentures, any required payments pursuant
to Section 6.2 of the Debentures, any required payments pursuant to Section
8.3 of the Debentures, any required payments pursuant to Section 8.9 of the
Debentures, any required payments pursuant to Section 2.3 of the
Registration Rights Agreement, and any required payments pursuant to
Sections 1(e) and 4(e) of the Warrant,
in each case (a) if no Event of Default has occurred and is continuing
under the Loan Agreement, (b) if the making of such Permitted Payment would
not result in a breach of any of the covenants contained in Section 6.1(b)
of the Loan Agreement as in effect on the date hereof and measured as if
such payments had been made at the end of the immediately preceding
calendar month, and (c) if prior to the delivery of a "Demand Redemption
Notice" (as such term is defined in the Debentures) (collectively, the
circumstances described in clauses (a), (b) and (c) are sometimes referred
to as a "Payment Blockage Event"). No Payment Blockage Event shall have
occurred under clauses (a) or (b) above until the receipt of notice by the
Holders of the occurrence of a Payment Blockage Event described in clause
(a) or (b). Further, notwithstanding the foregoing, so long as no Payment
Blockage Event would be caused by any such resumed payment, then WTI may
resume making to the Holders and Holders may resume accepting from WTI, the
Permitted Payments as and when such payments are due and payable in the
ordinary course under the Subordinate Documents, and further, as provided
below, payments missed during the occurrence of a Payment Blockage Event,
may be resumed upon the earlier to occur of the following:
(i) the date on which no Payment Blockage Event is occurring;
and
(ii) unless Bank has accelerated the maturity of the Obligations
under the Loan Agreement, or there has a occurred a "Bankruptcy Event" (as
such term is defined in the Debenture), the date that is sixty (60)
calendar days after the occurrence of the most recent Payment Blockage
Event.
In the event that subsequent to a Payment Blockage Event or the resumption
of payments to the Holders as provided above, Bank accelerates the maturity
of the Obligations, then WTI shall not pay and the Holders shall not accept
further payments of the Subordinated Debt until the Senior Debt is paid in
full or such acceleration is rescinded by Bank. For purposes of
clarification, it is expressly agreed by Bank that neither Permitted
Payments nor any of the events giving rise thereto shall constitute, of
themselves, Events of Default under the Loan Agreement.
3. Lien Priority.
(a) The Holders hereby acknowledge and agree that Borrowers have
granted to Bank an unconditional and continuing security interest in all of
Borrowers' assets and property (collectively, the "Bank Liens") and that
the Bank Liens are and will be senior to the lien of the Holders. Bank
hereby acknowledges that Pledging Borrowers have granted to Holders a
junior lien on and security interest in all of Pledging Borrowers' assets
and property (the "Holder Liens").
(b) Irrespective of the time or order of attachment or perfection
of the Holder Liens and the Bank Liens, or the recording or filing of any
deeds of trust, financing statements or other documents or instruments
related thereto, with respect to the assets of Borrowers, the Holder Liens
thereon in all respects and at all times are and will be subject,
subordinate and junior to the Bank Liens thereon to the extent of the
Senior Debt. Holders shall not contest the existence, validity, perfection
or priority of the Bank Liens and shall hold any Collateral coming into
their possession, as agents on behalf of Bank for purposes of perfecting
the Bank Liens.
4. Standstill. Except as expressly provided in this Section 4,
until all of the Senior Debt is fully paid (unconditionally and
indefeasibly) and all obligations of the Bank to advance funds to the
Borrower under the Loan Agreement have been terminated, the Holder will not
take any action to enforce any rights or remedies under any of the
Subordinate Documents other than (to the extent appropriate) declaring an
Event of Failure under the Debenture and accelerating the Subordinated Debt
by delivering a Demand Redemption Notice. Without limiting the generality
of the foregoing, this standstill agreement includes, without, limitation,
any rights the Holders may have to exercise setoff, to initiate or
otherwise prosecute any litigation, arbitration, or mediation of any sort,
to commence foreclosure proceedings, to exercise self-help remedies or to
participate in the commencement of any involuntary bankruptcy or other
similar proceedings with respect to the Pledging Borrowers or any of their
assets, but shall not prohibit Holders from filing proofs of claim with
respect to the Subordinated Debt in any insolvency proceeding of Pledging
Borrowers. Notwithstanding the foregoing, so long as Bank has not
accelerated the maturity of the Obligations and initiated enforcement
action against Borrowers within thirty (30) days following notice from the
Holders to the holders of the Senior Debt of an Event of Failure under the
Debenture with respect to which the Holder has delivered a Demand
Redemption Notice, Holders may, upon the expiration of thirty (30) days
following notice from the Holders to the holders of such Senior Debt of an
Event of Failure under the Debenture with respect to which the Holder has
delivered a Demand Redemption Notice, initiate and take enforcement under
the Subordinate Documents consistent with the following provisions of this
Section 4. In
addition, if Bank has accelerated the maturity of the Obligations and
initiated enforcement action against Borrowers within such thirty (30) day
period, but after such thirty day period ceases to be pursuing enforcement
actions in a manner which, in its reasonable determination, is intended to
result in realization on the Collateral, then Holders may initiate and take
enforcement under the Subordinate Documents consistent with the following
provisions of this Section 4. If any Holder takes any remedial actions
under the Subordinate Documents, as permitted by this Section 4, then such
actions must nevertheless be consistent with and remain subject to the
provisions of Section 3 hereof (Lien Priority) and Section 6 (Bank's
Priority; Grant of Authority to the Bank) and Section 7 (Payments Received
by the Holders). If Bank declares any Event of Default, which also
constitutes an Event of Failure under the Subordinate Documents, and Bank
subsequently waives such Event of Default, then, to the extent that such
default does not constitute a "Greater Failure" (as such term is defined in
the Debenture), the Holder shall rescind any Holder Demand Redemption
Notice, but may receive the Default Alternative Payment under Section 7.5
of the Debenture. If at any time, Bank accelerates the maturity of the
Obligations, initiates, and is pursuing enforcement actions in a manner
which, in its reasonable determination, is intended to result in
realization on the Collateral, then the Holders shall, if any Holders have
initiated enforcement action to realize on the Collateral as permitted by
this Section 4, cease such action; provided, that such Holder may intervene
in any legal proceedings instituted by Bank against Pledging Borrowers and
shall cooperate with Bank in the enforcement of Bank's rights and remedies.
Nothing contained in this Section 4 or otherwise in this Agreement shall
prohibit a Holder from pursuing and obtaining for its benefit injunctive or
equitable relief (except with respect to the Collateral) or a judgement on
account of any Subordinated Debt, provided that no monetary judgement may
be enforced except in accordance with this Section 4.
5. Subordinated Debt Owed Only to the Holders. Each Holder
individually and severally warrants and represents to the Bank that, as of
the date hereof, the Holder has not previously assigned any interest in the
Subordinated Debt issued to such Holder, including, without limitation, any
Subordinated Debt evidenced by any of the Subordinate Documents, held by
such Holder or any security interest in connection therewith, that no other
party owns an interest in any Subordinated Debt issued to such Holder or
security therefor (whether as joint holders of Subordinated Debt,
participants or otherwise) and that the entire Subordinated Debt issued to
such Holder is owing only to such holder. Each Holder individually and
severally covenants that the entire Subordinated Debt issued to such Holder
shall continue to be owing only to such the Holder and all security
therefor, if any, shall continue to be held solely for the benefit of such
Holder unless assigned expressly subject to the terms of this Agreement.
6. Bank's Priority; Grant of Authority to the Bank. In the event
of any distribution, division, or application, partial or complete,
voluntary or involuntary, by operation of law or otherwise, of all or any
part of the assets of any of the Borrowers or any of the proceeds thereof
to the creditors of any of the Borrowers or readjustment of the Senior Debt
and Subordinated Debt of any of the Borrowers, whether by reason of
liquidation, bankruptcy, arrangement, receivership, assignment for the
benefit of creditors or any other action or proceeding involving the
readjustment of all or any part of the Subordinated Debt, or the
application of any assets of any of the Borrowers to the payment or
liquidation thereof, or upon the dissolution or other winding up of any
Borrower's businesses, or upon the sale of all or substantially all of any
Borrower's assets, then and in such event (i) the Bank shall be entitled to
receive payment in full of any and all of the Senior Debt prior to the
payment of all or any part of the Subordinated Debt and (ii) any payment or
distribution of any kind or character, whether in cash, securities (other
than stock of WTI and securities subordinated to the Bank consistent with
the terms hereof) or other property, which shall be
payable or deliverable upon or with respect to any or all of the
Subordinated Debt shall be paid or delivered directly to the Bank for
application on any of the Senior Debt, due or not due, until such Senior
Debt shall have first been fully paid and satisfied, prior to the payment
of the Subordinated Debt. In order to enable the Bank to enforce its rights
hereunder in any of the aforesaid actions or proceedings, the Bank is
hereby irrevocably authorized and empowered, in its discretion, to make and
present for and on behalf of the undersigned such proofs of claims against
any of the Borrowers on account of any of the Subordinated Debt as the Bank
may deem expedient or proper and to vote such proofs of claims in any such
proceeding and to receive and collect any and all dividends or other
payments or disbursements made thereon in whatever form the same may be
paid or issued, and to apply the same on account of any of the Senior Debt.
The Holders irrevocably authorize and empower the Bank, upon any Holder's
failure to take such action within thirty (30) days of written request by
the Bank, to demand, sue for, collect and receive each of the aforesaid
payments and distributions and give acquittance therefor and to file claims
and take such other actions in the Bank's own name or in the name of any of
the Holders or otherwise, as the Bank may deem necessary or advisable for
the enforcement of this Agreement; and the Holders will execute and deliver
to the Bank such powers of attorney, assignments and other instruments or
documents, including notes and stock certificates (together with such
assignments or endorsements as the Bank shall deem necessary), as may be
requested by the Bank in order to enable the Bank, upon any Holder's
failure to act after notice as provided above, to enforce any and all
claims upon or with respect to any or all of the Subordinated Debt and
thereafter to collect and receive any and all payments and distributions
which may be payable or deliverable at any time upon or with respect to the
Subordinated Debt, all for the Bank's own benefit. Following payment in
full of the Senior Debt, the Bank will remit to the Holders all dividends
or other payments or distributions paid to and held by the Bank in excess
of the Senior Debt.
7. Payments Received by the Holders. Should any payment or
distribution or security or instrument or proceeds thereof be received by a
Holder upon or with respect to any of the Subordinated Debt prior to the
satisfaction of all of the Senior Debt and termination of all obligations
of the Bank to make advances under the Loan Agreement, such Holder shall
receive and hold the same in trust, as trustee, for the benefit of the Bank
and shall forthwith deliver the same to the Bank in precisely the form
received (except for the endorsement or assignment of the Holder where
necessary), for application on any of the Senior Debt, due or not due, and,
until so delivered, the same shall be held in trust by the Holder as the
property of the Bank. In the event of the failure of any of the Holders to
make any such endorsement or assignment to the Bank, the Bank, or any of
its officers or employees, are hereby irrevocably authorized to make the
same.
8. Amendment of Subordinate Documents; Assignment of Claims. The
Holders agree that until the Senior Debt has been paid in full and
satisfied and all obligations of the Bank to make further advances to the
Borrower under the Loan Agreement have been terminated, the Holders will
not suffer or permit any amendment or modification of any of the
Subordinate Documents without the prior written consent of the Bank, and
the Holders will not directly or indirectly assign or transfer to others
any claim any of the Holders have or may have against any of the Borrowers
unless such assignment or transfer is made expressly subject to this
Agreement.
9. Continuing Nature of Subordination; Conflicts. This Agreement
shall be effective and may not be terminated or otherwise revoked by any of
the Holders until the entire Senior Debt shall have been fully discharged
and all obligations of the Bank to make further advances to the Borrower
have been terminated. This is a continuing agreement of subordination and
the Bank may continue, at any time and without notice to any of the
Holders, to extend credit or other financial accommodations and
loan monies to or for the benefit of the Borrowers on the faith hereof and
in accordance with the terms set forth herein. No obligation of any of the
Holders hereunder shall be affected by the insolvency or dissolution of or
the written revocation of this Agreement by any of the Holders or any other
subordinator, pledgor, endorser, or guarantor, if any. Nothing herein
affect the underlying obligations of the Borrowers to the Bank or to the
Holders.
10. Additional Agreements Between the Bank and the Borrowers. The
Bank, at any time and from time to time, may enter into such agreement or
agreements with any of the Borrowers as the Bank may deem proper, extending
the time of payment of or renewing or otherwise altering the terms of all
or any of the Senior Debt or affecting the security underlying any or all
of the Senior Debt, and may exchange, sell, release, surrender or otherwise
deal with any such security, without in any way thereby impairing or
affecting this Agreement. The foregoing notwithstanding, Bank shall not
make additional loans or increase the amount outstanding under the Loan
Agreement unless (i) any such increases result from an increase in
Borrowers' inventory or receivables borrowing base (provided that the
advance rates with respect to such inventory or receivables are no more
favorable to Borrowers than those contained in the Loan Agreement as of the
date of this Agreement) and which, in any event, do not affect any Holder
or the Holder's interests in the Debentures in any manner materially more
adverse to the Holders than the Loan Agreement in existence on the date
hereof or (ii) such additional loans satisfy the criteria set forth in
Section 8.15 of the SPA.
11. Legend on Subordinate Documents Evidence of Subordinated
Debt. The Debentures and any other writing now existing or hereafter
executed which serves to evidence any of the Subordinated Debt shall have
stamped or typewritten across the face thereof the following legend: "The
indebtedness of the Company evidenced hereby is subject to the rights of
LaSalle National Bank, its successors and assigns, under a Subordination
Agreement dated April __ 1999."
12. Holders' Waivers. All of the Senior Debt shall be deemed to
have been made or incurred in reliance upon this Agreement. The Holders
expressly waive all notice of the acceptance by the Bank of the
subordination and other provisions of this Agreement and all other notices
not specifically required pursuant to the terms of this Agreement
whatsoever, and the Holders expressly waive reliance by the Bank upon the
subordination and other agreements as herein provided. The Holders agree
that the Bank has not made any warranties or representations with respect
to the due execution, legality, validity, completeness or enforceability of
the Loan Agreement, or the collectibility of the Senior Debt, that the Bank
shall be entitled to manage and supervise its respective loans to the
Borrowers in accordance with applicable law and its respective usual
practices, modified from time to time as it deems appropriate under the
circumstances, without regard to the existence of any rights that the
Holders may now or hereafter have in or to any of the assets of the
Borrowers, and that the Bank shall not have any liability to any of the
Holders for, and waive any claim which any of the Holders may now or
hereafter have against the Bank arising out of (i) any and all actions
which the Bank, in good faith, takes or omits to take (including, without
limitation, actions with respect to the creation, perfection or
continuation of liens or security interest in the Collateral and other
security for the Senior Debt, actions with respect to the occurrence of an
Event of Default, actions with respect to the foreclosure upon, sale,
release, or depreciation of, or failure to realize upon, any of the
Collateral and actions with respect to the collection of any claim for all
or any part of the Senior Debt from any account debtor, guarantor or any
other party with respect to the Loan Agreement or any other agreement
related thereto or to the collection of the Senior Debt or the valuation,
use, protection or release of the Collateral and/or other security for the
Obligations), (ii) the Bank's election, in any proceeding instituted under
Chapter 11 of Title 11 of the United States Code (11 U.S.C. Section 101
et seq.)
(the "Bankruptcy Code"), of the application of Section 1111(b)(2) of the
Bankruptcy Code, and/or (iii) any borrowing or grant of a security interest
under Section 364 of the Bankruptcy Code to any of the Borrowers, as debtor
in possession.
13. Bank's Waivers. No waiver shall be deemed to be made by the
Bank of any of its rights hereunder, unless the same shall be in writing
signed on behalf of the Bank, and each waiver, if any, shall be a waiver
only with respect to the specific instance involved and shall in no way
impair the rights of the Bank or the obligations of the Holders to the Bank
in any other respect at any other time.
14. Information Concerning Financial Condition of Borrowers. The
parties hereby assume responsibility for keeping themselves informed of the
financial condition of the Borrowers, any and all endorsers and any and all
guarantors of the Senior Debt and Subordinated Debt and of all other
circumstances bearing upon the risk of nonpayment of the Senior Debt and/or
Subordinated Debt that diligent inquiry would reveal, and hereby agree that
they shall have no duty to advise each other of information known to them
regarding such condition or any such circumstances. In the event either the
Bank or any Holder, in its sole discretion, undertakes, at any time or from
time to time, to provide any such information to the other parties hereto,
it shall not be under any obligation (i) to provide any such information to
the other parties on any subsequent occasion or (ii) to undertake any
investigation not a part of its respective regular business routine and
shall be under no obligation to disclose any information which, pursuant to
accepted or reasonable commercial finance practices, it wishes to maintain
confidential. The Holders hereby agree that all payments received by the
Bank may be applied, reversed, and reapplied, in whole or in part, to any
of the Senior Debt, as the Bank, in its sole discretion, deems appropriate
and assents to any extension or postponement of the time of payment of the
Senior Debt or to any other indulgence with respect thereto, to any
substitution, exchange or release of collateral which may at any time
secure the Senior Debt and to the addition or release of any other party or
person primarily or secondarily liable therefor.
15. Notice. The undersigned and the Bank shall promptly provide
each other copies of any notices of default provided to the Borrowers under
the Subordinate Documents or the Loan Agreement, in the manner specified in
the Loan Agreement, addressed to the Bank and to the Holders at the address
set forth below their respective signatures hereto.
16. Governing Law. This Agreement has been delivered and accepted
at and shall be deemed to have been made at Chicago, Illinois, and shall be
interpreted, and the rights and obligations of the parties hereto
determined, in accordance with the laws and decisions of the State of
Illinois, shall be immediately binding upon the Holders and their
successors and assigns, and shall inure to the benefit of the respective
successors and assigns of the Bank.
17. Consent to Service. The Holders expressly submit and consent
to the jurisdiction of any state or federal court located within Cook
County, Illinois in any action, suit or proceeding commenced therein in
connection with or with respect to this Agreement and waive any objection
to venue in connection therewith. The Holders hereby waive personal service
of any and all process or papers issued or served in connection with the
foregoing and agree that service of such process or papers may be made by
registered or certified mail, postage prepaid, return receipt requested,
directed to the Holders as set forth below.
18. Waiver of Jury Trial. THE BANK AND THE HOLDERS HEREBY
KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY WAIVE ANY RIGHTS THEY MAY HAVE TO
A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT
OF, UNDER, IN CONNECTION WITH, OR RELATING TO THIS AGREEMENT, OR ANY OTHER
LOAN DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING,
STATEMENTS (WHETHER VERBAL OR WRITTEN), OR ACTIONS OF THE BANK OR THE
HOLDERS. THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE BANK TO ENTER INTO
THIS AGREEMENT AND TO CONSENT TO THE EXECUTION OF THE SUBORDINATE DOCUMENTS
AND THE INCURRENCE OF THE SUBORDINATED DEBT.
19. Section Titles. The section titles contained in this
Agreement are and shall be without substantive meaning or content of any
kind whatsoever and are not a part of the agreement among the parties
hereto.
20. Authority. Each Holder hereby individually and severally
warrants and represents that it has full power and authority to grant the
subordination evidenced hereby.
21. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all of
which together shall constitute one and the same instrument.
[SIGNATURE PAGE(S) AND EXHIBITS, IF ANY,
FOLLOW THIS PAGE]
IN WITNESS WHEREOF, this instrument has been executed as of
this ___ day of April, 1999.
CASTLE CREEK TECHNOLOGY PARTNERS LLC
By: Castle Creek Partners LLC
Its: Investment Manager
By:
---------------------------------
Name: John D. Ziegelman
Title: Managing Member
Address: 77 West Wacker, Suite 4040
Chicago, Illinois 60601
Telephone: 312-499-6900
Telecopy: 312-499-6999
MARSHALL CAPITAL MANAGEMENT, INC.
By:
-------------------------------------
Name:
Title:
Address: c/o Credit Suisse First Boston
11 Madison Avenue, Third Floor
New York, NY 10010
Telephone:
Telecopy:
CAPITAL VENTURES INTERNATIONAL
By:
-------------------------------------
Name:
Title:
Address: c/o Heights Capital Management
425 California Street, Suite 1100
San Francisco, California 94104
Telephone:
Telecopy:
Acknowledged and Accepted
as of this ___ day of
April, 1999
LASALLE NATIONAL BANK
By:
-------------------------------
ACKNOWLEDGMENT AND AGREEMENT
The undersigned companies hereby jointly and severally accept and
acknowledge receipt of a copy of the foregoing Subordination Agreement as
of this ___ day of April, 1999, and jointly and severally agree that they
will not pay any of the "Subordinated Debt" (as defined in the foregoing
Agreement) or grant any security therefor, except as the foregoing
Agreement expressly provides. In the event of any breach by any of the
undersigned of any of the provisions herein or of the foregoing Agreement,
all of the "Senior Debt" (as defined in the foregoing Agreement) shall,
without presentment, demand, protest or notice of any kind, become
immediately due and payable, unless the Bank shall otherwise elect in
writing. The undersigned further jointly and severally agree that the terms
of this Agreement shall not give any of the undersigned any substantive
rights vis-s-vis the Bank or the subordinating creditor(s) named above,
other than pursuant to the Loan Agreement and the Subordinate Documents.
WESTELL, INC. WESTELL TECHNOLOGIES, INC.
By: By:
Title: Title:
WESTELL INTERNATIONAL, INC. CONFERENCE PLUS, INC.
By: By:
Title: Title: