Common use of Covenants Related to Certificated Equipment Clause in Contracts

Covenants Related to Certificated Equipment. (i) Each Grantor shall cause all Certificated Equipment to be properly titled in the name of the appropriate Grantor and to have the Administrative Agent’s Lien granted hereunder on such Certificated Equipment properly noted on the certificate of title with respect thereof and, except as provided in Section 6(a)(ii) below or where an applicable jurisdiction has adopted an electronic certificate of title system and will not issue physical certificates of title, shall promptly deliver to the Secured Party after such notation is completed the certificate of title with respect thereto. Subject to the terms of this Security Agreement and the Custodial Agreement, the Administrative Agent shall provide to the Custodians a power of attorney, effective for the period that the security interest granted hereunder is effective, to execute all documents and instruments necessary to have the Administrative Agent’s Lien granted hereunder properly noted on the certificate of title with respect to Certificated Equipment. (ii) Until the Administrative Agent otherwise notifies the Borrower and each applicable Custodian, the certificates of title with respect to each item of Certificated Equipment with a net book value less than $100,000, shall be maintained by a Custodian at the Borrower’s offices located in Houston, Texas or at the applicable Grantor’s offices where records for Collateral are kept (as identified in Schedule III hereto) or such other office as may be agreed to in writing between such Grantor and the Administrative Agent. With respect to items of Certificated Equipment with a net book value less than $100,000 to be sold or otherwise transferred in the ordinary course of business, the Administrative Agent shall, at the Grantors’ expense, provide to each Custodian a power of attorney which shall be revocable by the Administrative Agent at any time without cause upon notice to the Borrower and each applicable Custodian. Such power of attorney shall authorize the Custodians, on behalf of the Administrative Agent, to execute all documents and instruments necessary to release the security interest granted hereunder with respect to items of Certificated Equipment with a net book value less than $100,000 which are to be sold or transferred in the ordinary course of business and in the aggregate net book value not to exceed $250,000 during any six-month reporting period described in Section 6(a)(iv) below. If the Grantors desire to sell or transfer more than $250,000 of net book value in the aggregate of items of Certificated Equipment with individual net book values less than $100,000 in any such six-month period, the Grantors may request in writing a power of attorney from the Administrative Agent which shall authorize the Custodians to execute on behalf of the Administrative Agent all documents and instruments necessary to release the security interest granted hereunder with respect to such additional Certificated Equipment. Such request by the Grantors shall describe the Certificated Equipment to be sold or transferred and certify the aggregate net book value of such Certificated Equipment and certify that such Certificated Equipment are being sold or transferred in the ordinary course of business. If no Event of Default has occurred and is continuing and such sale or transfer is otherwise permitted under the terms of the Credit Agreement, the Administrative Agent shall promptly deliver to the applicable Custodians the requested additional power of attorney which shall be effective only as to the additional Certificated Equipment described in the written request therefore. (iii) If any individual holding a power of attorney provided by the Administrative Agent hereunder resigns as a Custodian under the Custodial Agreement or ceases to be an employee of the Borrower or the applicable Grantor (any such event being, the “Termination”), the Borrower or such applicable Grantor shall provide prompt written notice of such Termination to the Administrative Agent. Upon such Termination, the Borower may designate an agent (who is an employee of the applicable Grantor and who is approved by the Administrative Agent in its sole discretion), who has executed and delivered a Custodial Agreement, to hold a power of attorney in replacement of such terminated Custodian. If a Termination has occurred and no replacement Custodian is designated in accordance with the terms hereof, then at the Administrative Agent’s request the applicable Grantor shall promptly deliver to the Administrative Agent all certificates of title with respect to Certificated Equipment constituting Collateral which are in such Grantor’s possession. Upon the Administrative Agent’s request at any time during the course of this Security Agreement, the Grantors shall promptly deliver to the Administrative Agent all certificates of title with respect to Certificated Equipment constituting Collateral which are in any Grantor’s (or the applicable Custodian’s) possession. (iv) The Borrower, on behalf of the Grantors, shall, within 30 days following the last day of each six-month period commencing December 31, 2014, provide to the Administrative Agent a report or reports listing all of the Grantors’ Certificated Equipment which constitute Collateral and if applicable, a detailing of the acquisitions, sales, assignments and other transfers and retitling of such Certificated Equipments during such six-month period. (v) WITHOUT LIMITING THE GRANTORS’ INDEMNITY OBLIGATIONS PROVIDED IN THE CREDIT AGREEMENT, EACH GRANTOR SHALL DEFEND AND INDEMNIFY EACH SECURED PARTY FROM AND AGAINST ANY CLAIM, DAMAGE, LOSS, LIABILITY, COST, OR EXPENSE (INCLUDING REASONABLE ATTORNEYS’ FEES AND EXPENSES) ARISING OUT OF, RELATED TO OR IN ANY WAY INCURRED IN CONNECTION WITH, ANY ACTIONS TAKEN OR OMITTED TO BE TAKEN BY A CUSTODIAN, REGARDLESS OF WHETHER SUCH ACTION OR OMISSION WAS TAKEN OR OMITTED TO BE TAKEN AS A RESULT OF THE CUSTODIAN’S NEGLIGENCE, GROSS NEGLIGENCE OR WILLFUL MISCONDUCT; PROVIDED THAT, THIS INDEMNITY BY THE GRANTORS SHALL NOT APPLY TO ANY ACTION OR OMISSION BY A CUSTODIAN THAT IS FOUND IN A FINAL, NON-APPEALABLE JUDGMENT BY A COURT OF COMPETENT JURISDICTION TO HAVE RESULTED FROM SUCH INDEMNIFIED SECURED PARTY’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR BAD FAITH.

Covenants Related to Certificated Equipment. (i) Each Grantor shall cause all Certificated Equipment to be properly titled in the name of the appropriate Grantor and to have the Administrative Agent’s ’s, for its benefit and the ratable benefit of the Secured Parties, Lien granted hereunder on such Certificated Equipment properly noted on the certificate of title with respect thereof and, except as provided in Section 6(a)(ii) below or where an applicable jurisdiction has adopted an electronic certificate of title system and will not issue physical certificates of title, shall promptly deliver to the Administrative Agent, for its benefit and the ratable benefit of the Secured Party Parties, (or the First Lien Agent, pursuant to terms of the Intercreditor Agreement) after such notation is completed the certificate of title with respect thereto. Subject to the terms of this Security Agreement and the Custodial Agreement, the Administrative Agent Agent, for its benefit and the ratable benefit of the Secured Parties, shall provide to the Custodians a power of attorney, effective for the period that the security interest granted hereunder is effective, to execute all documents and instruments necessary to have the Administrative Agent’s ’s, for its benefit and the ratable benefit of the Secured Parties, Lien granted hereunder properly noted on the certificate of title with respect to Certificated Equipment. (ii) Until the Administrative Agent or the Required Lenders otherwise notifies the Borrower and each applicable Custodian, the certificates of title with respect to each item of Certificated Equipment with a net book value less than $100,000, shall be maintained by a Custodian at the Borrower’s offices located in Houston, Texas or at the applicable Grantor’s offices where records for Collateral are kept (as identified in Schedule III hereto) or such other office as may be agreed to in writing between such Grantor and the Administrative Agent, for its benefit and the ratable benefit of the Secured Parties. With respect to items of Certificated Equipment with a net book value less than $100,000 S100,000 to be sold or otherwise transferred in the ordinary course of business, the Administrative Agent Agent, for its benefit and the ratable benefit of the Secured Parties, shall, at the Grantors’ expense, provide to each Custodian a power of attorney which shall be revocable by the Administrative Agent Agent, for its benefit and the ratable benefit of the Secured Parties, at any time without cause upon notice to the Borrower and each applicable Custodian. Such power of attorney shall authorize the Custodians, on behalf of the Administrative Agent, for its benefit and the ratable benefit of the Secured Parties, to execute all documents and instruments necessary to release the security interest granted hereunder with respect to items of Certificated Equipment with a net book value less than $100,000 which are to be sold or transferred in the ordinary course of business and in the aggregate net book value not to exceed $250,000 S250,000 during any six-month reporting period described in Section 6(a)(iv) below. If the Grantors desire to sell or transfer more than $250,000 of net book value in the aggregate of items of Certificated Equipment with individual net book values less than $100,000 in any such six-month period, the Grantors may request in writing a power of attorney from the Administrative Agent Agent, for its benefit and the ratable benefit of the Secured Parties, which shall authorize the Custodians to execute on behalf of the Administrative Agent Agent, for its benefit and the ratable benefit of the Secured Parties, all documents and instruments necessary to release the security interest granted hereunder with respect to such additional Certificated Equipment. Such request by the Grantors shall describe the Certificated Equipment to be sold or transferred and certify the aggregate net book value of such Certificated Equipment and certify that such Certificated Equipment are being sold or transferred in the ordinary course of business. If no Event of Default has occurred and is continuing and such sale or transfer is otherwise permitted under the terms of the Credit Agreement, the Administrative Agent shall shall, at the written direction of the Required Lenders, promptly deliver to the applicable Custodians the requested additional power of attorney which shall be effective only as to the additional Certificated Equipment described in the written request therefore. (iii) If any individual holding a power of attorney provided by the Administrative Agent Agent, for its benefit and the ratable benefit of the Secured Parties, hereunder resigns as a Custodian under the Custodial Agreement or ceases to be an employee of the Borrower or the applicable Grantor (any such event being, the “Termination”), the Borrower or such applicable Grantor shall provide prompt written notice of such Termination to the Administrative Agent. Upon such Termination, the Borower Borrower may designate an agent (who is an employee of the applicable Grantor and who is approved by the Administrative Agent (or the Required Lenders) in its (or their) sole discretion), who has executed and delivered a Custodial Agreement, to hold a power of attorney in replacement of such terminated Custodian. If a Termination has occurred and no replacement Custodian is designated in accordance with the terms hereof, then at the Administrative Agent’s or the Required Lender’s request the applicable Grantor shall promptly deliver to the Administrative Agent Agent, for its benefit and the ratable benefit of the Secured Parties, all certificates of title with respect to Certificated Equipment constituting Collateral which are in such Grantor’s possession. Upon the Administrative Agent’s or the Required Lender’s request at any time during the course of this Security Agreement, the Grantors shall promptly deliver to the Administrative Agent Agent, for its benefit and the ratable benefit of the Secured Parties, all certificates of title with respect to Certificated Equipment constituting Collateral which are in any Grantor’s (or the applicable Custodian’s) possession. (iv) The Borrower, on behalf of the Grantors, shall, within 30 days following the last day of each six-month period commencing December 31, 20142016, provide to the Administrative Agent Agent, for its benefit and the ratable benefit of the Secured Parties, a written report or reports listing all of the Grantors’ Certificated Equipment which constitute Collateral and if applicable, a detailing of the acquisitions, sales, assignments and other transfers and retitling reading of such Certificated Equipments during such six-month period. (v) WITHOUT LIMITING THE GRANTORS’ INDEMNITY OBLIGATIONS PROVIDED IN THE CREDIT AGREEMENT, EACH GRANTOR SHALL DEFEND AND INDEMNIFY THE ADMINISTRATIVE AGENT AND EACH SECURED PARTY FROM AND AGAINST ANY CLAIM, DAMAGE, LOSS, LIABILITY, COST, OR EXPENSE (INCLUDING REASONABLE ATTORNEYS’ FEES AND EXPENSES) ARISING OUT OF, RELATED TO OR IN ANY WAY INCURRED IN CONNECTION WITH, ANY ACTIONS TAKEN OR OMITTED TO BE TAKEN BY A CUSTODIAN, REGARDLESS OF WHETHER SUCH ACTION OR OMISSION WAS TAKEN OR OMITTED TO BE TAKEN AS A RESULT OF THE CUSTODIAN’S NEGLIGENCE, GROSS NEGLIGENCE NEGLIGENCE, BAD FAITH OR WILLFUL MISCONDUCT; PROVIDED THAT, THIS INDEMNITY BY THE GRANTORS SHALL NOT APPLY TO ANY ACTION OR OMISSION BY A CUSTODIAN THAT IS FOUND IN A FINAL, NON-APPEALABLE JUDGMENT BY A COURT OF COMPETENT JURISDICTION TO HAVE RESULTED FROM SUCH INDEMNIFIED SECURED PARTY’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR BAD FAITH.