Contract
This
instrument and the rights and obligations evidenced hereby and any security
interests or other liens securing such obligations are subordinate in the manner
and to the extent set forth in that certain Subordination and Intercreditor
Agreement (the “Subordination
Agreement”) dated as of June __, 2008 among Black Forest International,
LLC, the “Companies” so identified therein, and Fourth Third LLC (“Agent”),
to the indebtedness (including interest) owed by the Companies, and the security
interests and liens securing such indebtedness, pursuant to and in connection
with that certain Amended and Restated Credit Agreement, dated as of June __,
2008, among the Agent, the lenders named therein and the Companies (the “Senior
Credit Agreement”) and the Loan Documents referred to therein as such
Credit Agreement and Loan Documents have been and hereafter may be amended,
supplemented or otherwise modified from time to time and to indebtedness
refinancing the indebtedness under that agreement as contemplated by the
Subordination Agreement; and each holder of this instrument, by its acceptance
hereof, irrevocably agrees to be bound by the provisions of the Subordination
Agreement.
In
consideration of BLACK FOREST
INTERNATIONAL, LLC, having an office at c/o BCGU, LLC, 0000 Xxxxx xxx
Xxxxx, Xxxxx 000, Xxxxxxxx, Xxxxxxxxxx 00000, (the “Secured Party”) heretofore
or hereafter (1) extending or agreeing to extend any credit or other
financial accommodation to or relying on any guaranty, endorsement or other
assurance of payment of EACH UNDERSIGNED PERSON, each of which is an entity and
is organized under the law as indicated in its signature block appearing at the
end of this Agreement and has an address for notice purposes at 0000 Xxxx
Xxxxxx, Xxxxx 000, Xxxxxx, Xxxxx 00000, (individually and collectively, the
“Debtor”) or (2) agreeing to any direct or indirect extension, renewal,
refinancing or other modification or replacement of or waiving or forbearing
from exercising any right, remedy or power relating to any obligation heretofore
or hereafter arising or accruing as a result of any such credit or other
financial accommodation, and for other valuable consideration, the receipt and
sufficiency of which are conclusively acknowledged by the Debtor, the Debtor
jointly with each other Debtor and severally agrees with the Secured Party as
follows:
licenses,
franchises and customer information), Goods (including, but not limited to,
Equipment, Farm Products, Fixtures and Inventory), Instruments (including, but
not limited to, Promissory Notes), Investment Property (including, but not
limited to, the Pledged Stock Collateral), Letter-of-Credit Rights (whether or
not the related letter of credit is in writing), letters of credit (whether or
not in writing), money and other personal property regardless of kind or nature
(including, but not limited to, agreements, instruments and other Records not
constituting Chattel Paper or a Document, General Intangible or Instrument, tort
claims not constituting a Commercial Tort Claim, contract rights not
constituting an Account or General Intangible, rights to payment of any money
not constituting or evidenced by an Account, Commercial Tort Claim, Deposit
Account, General Intangible, Investment Property, Letter-of-Credit Right, letter
of credit, Chattel Paper or Instrument and insurance policies, claims and
proceeds not constituting a Health-Care-Insurance Receivable or Proceeds) and
(ii) to the extent not referred to in clause (i) of this sentence, (A)
Supporting Obligations and Incidental Property Rights incident to, arising or
accruing pursuant to or otherwise relating to any of the things referred to in
clause (i) of this sentence, whether arising or accruing from any action
taken by the Debtor or the Secured Party or otherwise, (B) Proceeds, other
proceeds and Products of any of the things referred to in clauses (i) and
(ii)(A) of this sentence and (C) Records relating to any of the things
referred to in clauses (i) and (ii)(A) and (B) of this sentence; provided, that
none of the Excluded Assets shall constitute Collateral.
accelerated
or there occurs or exists any event or condition that, whether immediately or
after notice, lapse of time or both notice and lapse of time and whether or not
waived by any Person other than the Secured Party, would constitute a default
with respect to or permit the acceleration of the maturity of any of the
Obligations or any such other obligation, (ii) the Debtor or any Other
Obligor is dissolved, ceases to exist, participates or agrees to participate in
any merger, consolidation or other absorption, assigns or otherwise transfers
all or substantially all of his, her or its assets, makes any bulk sale, sends
any notice of any intended bulk sale, dies, becomes incompetent or insolvent
(however evidenced), generally fails to pay his, her or its debts as they become
due, fails to pay, withhold or collect any tax as required by applicable law,
suspends or ceases his, her or its present business or has entered, served,
filed or recorded against him, her or it or any of his, her or its assets any
judgment or order of any court, agency or other governmental body or any lien
other than a Permitted Lien, (iii) the Debtor or any Other Obligor has any
receiver, trustee, custodian or similar Person for him, her or it or any of his,
her or its assets appointed (whether with or without his, her or its consent),
makes any assignment for the benefit of creditors or commences or has commenced
against him, her or it any case or other proceeding pursuant to any bankruptcy,
insolvency or similar statute or any formal or informal proceeding for the
dissolution, liquidation or winding up of his, her or its affairs or the
settlement of claims against him, her or it, (iv) any representation or
warranty made in this Agreement or any Control Agreement or any other
representation or warranty heretofore or hereafter made, or any financial
statement heretofore or hereafter provided, to the Secured Party by or on behalf
of the Debtor or any Other Obligor proves, as of the date thereof, to have been
incorrect or misleading in any material respect or before the execution and
delivery to the Secured Party by the Debtor of this Agreement there occurred and
was not disclosed to the Secured Party any material adverse change in any
information disclosed in any such representation or warranty heretofore so made
or any financial statement heretofore so provided, (v) there occurs any
loss, theft or destruction of or damage to any substantial portion of the
Collateral or any substantial decrease in the value of the Collateral, (vi) the
Secured Party deems itself insecure with respect to the Obligations or is of the
opinion that the Collateral is or may not be sufficient or has decreased or may
decrease in value, whether or not the Secured Party has sought any Other
Collateral from the Debtor or any Other Obligor or (vii) an “Event of Default”
occurs or exists under the Note.
organization,
by-laws, operating or partnership agreement or other charter, organizational or
other governing document of, dissolution, liquidation or merger, consolidation
or other absorption of or sale, lease or other disposition of all or
substantially all of the assets of any Issuer of any General Intangible or
Investment Property)).
otherwise
applicable to any of the Obligations or (ii) any obligation of the Secured
Party, whether pursuant to any Deposit Account or Instrument or otherwise, that
is now or hereafter available for setoff against any of the
Obligations.
l. PNG. “PNG” means PNG Ventures,
Inc., a Nevada corporation.
p. PNG. “PNG” means PNG Ventures,
Inc., a Nevada corporation.
r. Uniform Commercial
Code. “Uniform Commercial Code” means at any time the Uniform
Commercial Code of the State of New York as in effect at such time.
transfer),
however asserted and whether now existing or hereafter arising or accruing,
shall be reinstated as part of the Obligations for purposes of this Agreement as
of the date it originally arose or accrued.
action
(including, but not limited to, the filing of any required application for
reissue, renewal, continuation or extension or any required affidavit, the
payment of any required fee and the commencement and prosecution of any
necessary action or other legal proceeding) required to maintain in full force
and effect each registration of or preserve in full force and effect each right
(including, but not limited to, any right as a licensor or licensee) of the
Debtor in any Intellectual Property included in the Collateral, (xi) use each
item of Intellectual Property included in the Collateral with appropriate notice
of registration or application for registration, (xii) maintain the quality of
products and services offered under any Intellectual Property included in the
Collateral, (xiii) upon receiving any certificate or other evidence of any
Intellectual Property included in the Collateral from any public office,
promptly deliver a copy thereof to the Secured Party, (xiv) promptly xxx to
stop and recover damages for any infringement, misappropriation or dilution of
any Intellectual Property included in the Collateral, (xv) provide to the
Secured Party a complete and accurate copy of each statement, confirmation,
notice, proxy statement, proxy and other communication relating to any Deposit
Account, General Intangible or Investment Property included in the Collateral
and received by the Debtor from any Person (including, but not limited to, any
Account Debtor, Issuer, Bank, Securities Intermediary or Commodity Intermediary)
obligated with respect to such Deposit Account, General Intangible or Investment
Property, (xvi) take each action (including, but not limited to, increasing the
value of the Collateral and reducing the amount of the Obligations) necessary to
maintain any value of any of the Collateral or ratio of the value of any of the
Collateral to the amount of any of the Obligations required by applicable law or
any contract between the Secured Party and the Debtor or any Other Obligor,
(xvii) promptly notify the Secured Party if any of the Collateral arises
out of any contract with any government, political subdivision or other taxing
authority, (xviii) promptly notify the Secured Party if any of the Collateral
arises out of any contract that gives rise to any requirement under applicable
law that the Debtor receive, hold or apply any money advanced by the Secured
Party with respect to any of the Collateral as a trust fund and receive, hold
and apply such money in accordance with such requirement, (xix) without limiting
the generality of clause (xviii) of this sentence, promptly notify the Secured
Party if any of the Collateral arises out of any contract for any public
improvement or improvement of real property for purposes of the Lien Law of the
State of New York, receive and hold the right to receive any money advanced by
the Secured Party with respect to any of the Collateral arising out of such
contract as trust funds to be first applied to the payment of trust claims as
defined in Section 71 of such Lien Law and apply such money only to the payment
of such trust claims before using it for any other purpose, (xx) promptly
notify the Secured Party of (A) any Goods included in the Collateral being
affixed to or installed in or on any real property or any Goods not
included
in the Collateral, (B) any loss, destruction or theft of or damage to any
of the Collateral, (C) any threat or commencement of any action or other
legal proceeding, any entry of any judgment or order of any court, agency or
other governmental body, or any assertion by any Person (including, but not
limited to, any Account Debtor, Issuer, Bank, Securities Intermediary or
Commodity Intermediary) other than the Secured Party of any demand, claim,
counterclaim, setoff or defense, relating to any of the Collateral, (D) any
infringement, misappropriation, dilution or other violation of any right
(including, but not limited to, as a licensor or licensee) of the Debtor in any
Intellectual Property included in the Collateral, (E) any claim by any Person
that the use by the Debtor (including, but not limited to, as a licensee) of any
Intellectual Property that the Debtor uses infringes, misappropriates, dilutes
or otherwise violates any right of such Person in such Intellectual Property,
(F) any abandonment of or adverse claim, determination or development with
respect to the ownership, license or maintenance in full force and effect of any
registration of or the preservation in full force and effect of any right
(including, but not limited to, as a licensor or licensee) of the Debtor in any
Intellectual Property included in the Collateral, (G) any occurrence or
existence of any Event of Default, any event or condition that, after notice,
lapse of time or both notice and lapse of time, would constitute any Event of
Default or any event or condition that has or will or might have any material
adverse effect on (I) any of the Collateral, (II) the Debtor,
(III) any Other Obligor or (IV) the business, operations, assets,
affairs or condition (financial or other) of the Debtor or any Other Obligor,
(H) any change in (I) the location of the residence or chief executive
office of the Debtor, (II) any company, trade, fictitious or other business
or other name under which the Debtor conducts his, her or its business,
operations or affairs, (III) the location of any of the Collateral not in
the possession or control of or en route to or from the Secured Party other than
mobile Equipment or the addition of any new such location or (IV) the primary
location at which any mobile Equipment included in the Collateral is kept or the
addition of any new such location, (I) the obtaining of any organizational
identification number by the Debtor if he, she or it does not have one, (J) any
removal of any mobile Equipment included in the Collateral for more than thirty
days at a time from the primary location at which such mobile Equipment is kept
and (K) the existence of any Commercial Tort Claim of the Debtor and (xxi) to
the extent that any portion of the Collateral would be rendered void or voidable
under applicable law by the grant to the Secured Party of a security interest
therein or the assignment, pledge or hypothecation thereof to the Secured Party
without the consent of a Person other than the Debtor that has not been or is
not obtained, hold such portion of the Collateral in trust for the Secured Party
until such consent is obtained and take each action (including, but not limited
to, obtaining such consent and assigning or selling or otherwise disposing of
such portion of the Collateral) requested by the Secured
Party to
assure that such portion of the Collateral inures and is realized upon for the
benefit of the Secured Party.
violation
of applicable law (including, but not limited to, the Fair Labor Standards Act
and any environmental or criminal statute) or any policy providing any insurance
on any of the Collateral, (vi) change or permit any change in the location
of any of the Collateral not in the possession or control of or en route to or
from the Secured Party other than mobile Equipment, (vii) remove or permit
any removal of any mobile Equipment included in the Collateral for more than
thirty days at a time from the primary location at which such mobile Equipment
is kept, (viii) cause or permit any Goods included in the Collateral to
become an Accession to any Goods not included in the Collateral, (ix) cause
or permit any Goods included in the Collateral to be subject to any negotiable
Document, (x) use any Intellectual Property included in the Collateral for
any use for which registration or application for registration of such
Intellectual Property has not been made, (xi) abandon, permit the abandonment by
any licensee of or take, fail to take or permit any licensee to take or fail to
take any action (including, but not limited to, sufficient use) that would or
might result in the invalidation, forfeiture, abandonment, falling into any
public use or domain or other impairment of any Intellectual Property included
in the Collateral, (xii) modify, terminate or attempt or agree or otherwise
incur any obligation to modify or terminate any Control Agreement or any
contract with a Securities Intermediary or Commodity Intermediary under which
any Securities Account or Commodity Account included in the Collateral is
established or maintained, (xiii) give Control of any Deposit Account,
Electronic Chattel Paper, Investment Property or Letter-of-Credit Right included
in the Collateral to any Person other than the Secured Party, whether by
entering into any agreement, instrument or other Record with a Bank, Securities
Intermediary or Commodity Intermediary for the purpose of giving a Person other
than the Secured Party Control of any Deposit Account or Investment Property
included in the Collateral or otherwise, (xiv) withdraw any money or other
property from any Securities Account or Commodity Account included in the
Collateral, (xv) exercise any Incidental Property Right included in the
Collateral, or take any other action, that would or might impair or otherwise
adversely affect the validity, perfection or priority of any Security Interest
or the value of any of the Collateral, cause any Event of Default or any event
or condition that, after notice, lapse of time or both notice and lapse of time,
would constitute any Event of Default, impair or otherwise adversely affect any
right, remedy or power of the Secured Party pursuant to this Agreement or
arising or accruing as a result of this Agreement or authorize or permit the
dissolution, liquidation or sale of any Person (including, but not limited to,
any Account Debtor, Issuer, Bank, Securities Intermediary or Commodity
Intermediary) obligated with respect to any of the Collateral, (xvi) provide to
the Secured Party or permit to be provided to the Secured Party on his, her or
its behalf any certificate, financial statement or other Record that contains
any statement of fact that is incorrect or misleading in any
material
respect or omits to state any fact necessary to make any statement of fact
contained therein not incorrect or misleading in any material respect or
(xvii) upon or at any time after any occurrence or existence of any Event
of Default or any giving by the Secured Party to the Debtor of any notice to the
contrary, (A) enforce, extend, renew, refinance or otherwise modify or
replace, request, demand, accept, collect or otherwise realize upon, compromise,
cancel, release, discharge, subordinate, accelerate, give any receipt, release
or discharge relating to, commence, prosecute or settle any action or other
legal proceeding relating to, waive or forbear from exercising any right, remedy
or power relating to or adversely affect any obligation of any Person
(including, but not limited to, any Account Debtor, Issuer, Bank, Securities
Intermediary or Commodity Intermediary) obligated with respect to any of the
Collateral relating to any of the Collateral, (B) agree or otherwise incur
any obligation to do anything described in clause (xvii)(A) of this sentence,
(C) make any trade in any Securities Account or Commodity Account included in
the Collateral or (D) exercise any Incidental Property Right included in the
Collateral.
otherwise
realize upon any of the Collateral, whether under applicable law (including, but
not limited to, the Federal Assignment of Claims Act and the Lien Law of the
State of New York) or otherwise, verify any of the Collateral or any insurance
on any of the Collateral or otherwise accomplish any purpose of this Agreement,
(ii) execute or otherwise authenticate and deliver to the Secured Party a
security agreement, in form and substance satisfactory to the Secured Party
granting to the Secured Party a security interest in any Commercial Tort Claim
or Intellectual Property of the Debtor to secure the payment and other
performance of the Obligations (including, but not limited to, a General
Security Agreement Supplement in the form of Exhibit C attached to this
Agreement), (iii) execute or otherwise authenticate and deliver to the Secured
Party a certificate or other Record updating or confirming the continued
completeness and accuracy of all information contained in any certificate or
other Record submitted by or on behalf of the Debtor to the Secured Party in
connection with this Agreement, (iv) deliver to the Secured Party each Tangible
Chattel Paper, Document, Instrument, Certificated Security and tangible Record
included in the Collateral, together with each endorsement, instrument of
assignment and other Record that the Secured Party requests to accomplish the
assignment or other transfer of such Tangible Chattel Paper, Document,
Instrument, Certificated Security or tangible Record to the Secured Party (with
all signatures guaranteed by such Person and in such manner as are satisfactory
to the Secured Party), and, until such delivery, hold such Tangible Chattel
Paper, Document, Instrument, Certificated Security or tangible Record in trust
for the Secured Party, (v) deliver to any Securities Intermediary
designated by the Secured Party any Certificated Security included in the
Collateral, together with each endorsement, instrument of assignment and other
Record that such Securities Intermediary requests to accomplish the assignment
or other transfer of such Certificated Security to such Securities Intermediary
(with all signatures guaranteed by such Person and in such manner as are
satisfactory to such Securities Intermediary), instruct such Securities
Intermediary to hold such Certificated Security for the account of the Secured
Party and, until such delivery, hold such Certificated Security in trust for the
Secured Party, (vi) cause any Security Interest in any General Intangible
or Investment Property included in the Collateral that is not represented by a
Certificated Security to be registered to or otherwise reflected in the name of
the Secured Party or any Person designated by the Secured Party,
(vii) cause a Certificated Security to be issued to represent any
Uncertificated Security included in the Collateral, (viii) cause any Person
(including, but not limited to, any Account Debtor, Issuer, Bank, Securities
Intermediary or Commodity Intermediary) obligated with respect to any Deposit
Account, General Intangible or Investment Property included in the Collateral to
provide to the Secured Party a complete and accurate copy of each statement,
confirmation, notice, proxy statement, proxy and other communication relating
to
such
Deposit Account, General Intangible or Investment Property, (ix) cause each
Instrument representing Proceeds or other proceeds of any of the Collateral to
be made payable, at the option of the Secured Party, to the Secured Party alone
or the Secured Party and the Debtor jointly, (x) provide to the Secured
Party all information requested by the Secured Party and relating to
(A) any of the Collateral (including, but not limited to, information
requested by the Secured Party to monitor the market value of any of the
Collateral), (B) any Person (including, but not limited to, any Account
Debtor, Issuer, Bank, Securities Intermediary or Commodity Intermediary)
obligated with respect to any of the Collateral, (C) the Debtor,
(D) any Other Obligor or (E) the business, operations, assets, affairs
or condition (financial or other) of the Debtor or any Other Obligor (including,
but not limited to, financial statements prepared in a form satisfactory to the
Secured Party and, if requested by the Secured Party, audited, reviewed or
compiled by an independent certified public accountant satisfactory to the
Secured Party), (xi) enter into each warehousing, lockbox or other
custodial arrangement with respect to any of the Collateral requested by the
Secured Party, (xii) permit each director, officer, employee, accountant,
attorney and other agent of the Secured Party to inspect the Collateral and
audit, copy and extract each Record included in the Collateral,
(xiii) provide to the Secured Party an agreement, instrument or other
Record, in form and substance satisfactory to the Secured Party,
(A) executed by each Person having any interest, whether as an owner,
mortgagee, secured party or lessee or otherwise, in any premises, or any Goods
not included in the Collateral, to which is affixed or in or on which is
installed or located any of the Collateral, (B) disclaiming any interest of
such Person in any of the Collateral and (C) authorizing the Secured Party,
upon or at any time after any occurrence or existence of any Event of Default,
to (I) enter upon any premises of such Person to which is affixed or in or
on which is installed or located any of the Collateral, (II) take
possession of and remove from any such premises and any Goods of such Person not
included in the Collateral any of the Collateral affixed to or installed or
located in or on any such premises or Goods and (III) remain on and use any
such premises in completing any work in process included in the Collateral or
storing, preparing for any sale, lease or other disposition or collecting,
selling, leasing or otherwise disposing of or otherwise realizing upon any of
the Collateral, without by doing any of the things described in clauses
(xiii)(C)(I) through (III) of this sentence incurring any liability to such
Person, except for unreasonable damage to any such premises or Goods directly
resulting from doing so, and (xiv) upon or at any time after any occurrence
or existence of any Event of Default, assemble and make available to the Secured
Party at any place designated by the Secured Party and reasonably convenient to
the Secured Party and the Debtor (A) all Goods included in the Collateral other
than Fixtures, growing
crops and
standing timber and (B) all Tangible Chattel Paper and tangible Records included
in the Collateral.
(c) taking
any action described in Section 4 of this Agreement), except that, until any
notice of intention to do so is given by the Secured Party to the Debtor upon or
at any time after any occurrence or existence of any Event of Default, the
Secured Party may not, as such attorney-in-fact, except as expressly permitted
by this Agreement, exercise or direct the exercise of any Incidental Property
Right relating to any General Intangible or Investment Property included in the
Collateral or sell, lease or otherwise dispose of any of the
Collateral. The power of attorney given pursuant to the preceding
sentence is coupled with an interest in favor of the Secured Party and shall not
be terminated or otherwise affected by the death, disability or incompetence of
the Debtor. In furtherance of, as the attorney-in-fact of the Debtor, the
Secured Party’s exercise or direction of the exercise of any Incidental Property
Right relating to any General Intangible or Investment Property included in the
Collateral, the Debtor grants to the Secured Party a proxy, which shall be
irrevocable and unlimited in duration, to exercise such Incidental Property
Right.
6. CERTAIN
RIGHTS, REMEDIES, POWERS AND DUTIES.
a. Rights, Remedies and Powers Pursuant
to Applicable Law. With respect to the Collateral, the Secured
Party shall have each applicable right, remedy and power pursuant to applicable
law (including, but not limited to, Article 9 of the Uniform Commercial Code) or
this Agreement.
b. Additional Rights Without Event of
Default. The Secured Party shall have the right to
(i) file in any public office, without any authorization by the Debtor
other than this Agreement, each Financing Statement relating to any of the
Collateral that the Secured Party desires to file, (ii) direct each Person
issuing any insurance on any of the Collateral to make directly and solely to
the Secured Party each payment in connection with any such insurance,
(iii) verify any of the Collateral in any manner or through any medium,
whether directly with any Person (including, but not limited to, any Account
Debtor, Issuer, Bank, Securities Intermediary or Commodity Intermediary)
obligated with respect thereto or otherwise or in the name of the Debtor or
otherwise, (iv) notify each Person (including, but not limited to, any
Account Debtor, Issuer, Bank, Securities Intermediary or Commodity Intermediary)
obligated with respect to any of the Collateral of the interest of the Secured
Party therein, direct such Person to make each payment with respect thereto
directly and solely to the Secured Party, take control of all Proceeds and other
proceeds thereof and, at the option of the Secured Party, hold such Proceeds and
other proceeds as part of the Collateral or apply such Proceeds and other
proceeds as provided in Section 6f of this Agreement, (v) deliver any notice of
exclusive control pursuant to any Control Agreement, (vi) exchange any
certificate
representing
any of the Collateral for a certificate of a larger or smaller denomination and
(vii) cause to be transferred to or registered in the name of the Secured
Party or any nominee, Securities Intermediary, Commodity Intermediary or other
agent of the Secured Party any of the Collateral so that the Secured Party
appears as the sole owner of record thereof, whether such transfer or
registration is made with or without reference to this Agreement or any Security
Interest. Any Financing Statement referred to in clause (i) of the
preceding sentence may, but shall not be required to, (i) use the term all
personal property of the Debtor or all assets of the Debtor or similar
terminology to refer to the collateral covered thereby (except, in each case, as
to PNG) and (ii) describe such collateral in any degree of detail.
c. Additional Rights Upon or After Event
of Default. Upon or at any time after any occurrence or
existence of any Event of Default, the Secured Party shall have the right to,
for the purpose of preserving or enhancing the value of any of the Collateral or
exercising any right, remedy or power of the Secured Party pursuant to this
Agreement or arising or accruing as a result of this Agreement, (i) perform
each obligation of the Debtor pursuant to this Agreement, (ii) without any
judicial process but without any breach of the peace, (A) enter upon each
premises of the Debtor, (B) store and provide for the guarding and
maintenance in good condition of any of the Collateral located on such premises,
(C) take possession of and remove from each such premises any of the Collateral
and (D) remain on and use each such premises, and use all Equipment and
Fixtures of the Debtor, whether or not included in the Collateral, in completing
any work in process included in the Collateral or storing, preparing for any
sale, lease or other disposition or collecting, selling, leasing or otherwise
disposing of or otherwise realizing upon any of the Collateral, (iii) exercise
any Incidental Property Right included in the Collateral, (iv) declare all
right, title and interest of the Debtor in and to any Intellectual Property
included in the Collateral to be vested in the Secured Party, (v) grant any
license, whether exclusive or nonexclusive, in any Intellectual Property
included in the Collateral to such Person, for such period, on such terms and in
such manner as is determined by the Secured Party and (vi) without the
payment of any compensation of any kind, use each General Intangible (including,
but not limited to, each item of Intellectual Property, license and franchise)
of the Debtor, whether or not included in the Collateral, to the extent of the
rights of the Debtor therein, for the purpose of exercising any right, remedy or
power of the Secured Party pursuant to this Agreement or arising or accruing as
a result of this Agreement, and, to such extent for such purpose, the Debtor
irrevocably grants the Secured Party a nonexclusive license in each such General
Intangible.
d. Additional Rights if Collateral
Includes Unregistered Security. If the Collateral includes any
Security required to be registered pursuant to applicable law (including, but
not limited to, the Securities Act of 1933) before being permitted to be sold or
otherwise disposed of, or offered for sale or other disposition, by the Secured
Party and upon or at any time after any occurrence or existence of any Event of
Default the Secured Party opts for any sale or other disposition of such
Security without such registration, (i) the Secured Party shall not be
obligated to delay such sale or other disposition to permit such registration,
and (ii) in order to comply with such law, the Secured Party shall have the
right to restrict the prospective purchasers in such sale or other disposition
(including, but not limited to, restricting such prospective purchasers to
Persons meeting specified requirements as to financial sophistication or intent
to purchase for investment and not with a view to sale or other disposition),
restrict the terms of such sale or other disposition (including, but not limited
to, restricting future sales and other dispositions) and impose other
restrictions on any aspect of such sale or other disposition (including, but not
limited to, the advertising or conduct thereof).
e. Standards for Sale or Other
Disposition in Commercially Reasonable Manner. If upon or at
any time after any occurrence or existence of any Event of Default the Secured
Party opts for any sale or other disposition of any portion of the Collateral,
whether or not such portion of the Collateral is of a specialized nature,
(i) no restriction on the prospective purchasers in such sale or other
disposition (including, but not limited to, a restriction of such prospective
purchasers to Persons meeting specified requirements as to financial
sophistication or intent to purchase for investment and not with a view to sale
or other disposition), restriction on the terms of such sale or other
disposition (including, but not limited to, restricting future sales and other
dispositions) or other restriction on any aspect of such sale or other
disposition (including, but not limited to, the advertising or conduct thereof)
imposed by the Secured Party in order to comply with applicable law (including,
but not limited to, the Securities Act of 1933 and any banking statute) shall be
a factor in determining such sale or other disposition to have been made in
other than a commercially reasonable manner, and (ii) without limiting any
other act, omission or other thing that shall not be considered in determining
such sale or other disposition to have been made in other than a commercially
reasonable manner, such sale or other disposition shall not be determined to
have been made in other than a commercially reasonable manner by reason of
(A) the Secured Party having obtained any insurance, credit enhancement or
other protection to insure it against or reduce loss, or to provide it a
guaranteed return, in connection with such sale or other disposition, (B) such
sale or other disposition having been advertised in a medium of general or
limited circulation, (C) such sale or other
disposition
not being made at the time and place therefor specified in any notice thereof
provided that the adjournment thereof is announced at such specified time and
place or a time and place announced at any adjournment thereof, (D) such sale or
other disposition being a public or private sale or other disposition
(including, but not limited to, a sale or other disposition using an internet
site that provides for the auction of assets of the type subject to such sale or
other disposition or has the reasonable capability of doing so or that matches
buyers and sellers of such assets), (E) such sale or other disposition being
made in one parcel or in more than one parcel, at one time or at different
times, in a wholesale or retail market, with or without any warranty, with or
without any assistance of any auctioneer, consultant, broker, investment banker
or other professional or with or without contacting any Person in the same
business as the Debtor to determine his, her or its interest in acquiring such
portion of the Collateral, (F) the exercise by the Secured Party, whether by the
use of a collection agency or otherwise, or the failure by the Secured Party to
exercise, whether by the use of a collection agency or otherwise, any collection
remedy against any Person (including, but not limited to, any Account Debtor,
Issuer, Bank, Securities Intermediary or Commodity Intermediary) obligated with
respect to such portion of the Collateral, (G) such sale or other disposition
involving the sale or other disposition of such portion of the Collateral either
for future delivery or for future payment without retention by the Secured Party
until such future payment and the failure of such future delivery or such future
payment to occur, (H) the failure of the Secured Party to comply with any
contract between the Secured Party and the Debtor with respect to any aspect of
such sale or other disposition (including, but not limited to, the advertising
or conduct thereof), (I) the failure of the Secured Party to remove any lien or
encumbrance on or adverse claim to such portion of the Collateral, (J) the
failure of the Secured Party to incur any expense deemed significant by the
Secured Party to prepare such portion of the Collateral for such sale or other
disposition or, if such portion of the Collateral is raw material or work in
process, to complete such portion of the Collateral into finished products prior
to such sale or other disposition or (K) the failure of the Secured Party,
except to the extent required by applicable law, to obtain any consent of any
Person required for access to such portion of the Collateral or for such sale or
other disposition.
f. Application of
Proceeds. Except to the extent held as part of the Collateral,
the Secured Party shall apply all Proceeds and other proceeds received by the
Secured Party from any collection or sale, lease or other disposition of or
other recovery upon or otherwise on account of any of the Collateral (including,
but not limited to, as money payable pursuant to any insurance on any of the
Collateral) first
to
liabilities, costs and expenses described in Section 8 of this Agreement and
then to the remainder of the Obligations, whether due or not due, in any order
determined by the Secured Party.
a. Collateral Transferred to or
Registered in Name of Secured Party or Agent of Secured
Party. The Secured Party shall be deemed to have exercised
reasonable care in the custody or preservation of any of the Collateral that is
transferred to or registered in the name of the Secured Party or any nominee,
Securities Intermediary, Commodity Intermediary or other agent of the Secured
Party if (i) the treatment thereof by the Secured Party or such nominee,
Securities Intermediary, Commodity Intermediary or other agent is substantially
equal to the treatment by the Secured Party of assets of the Secured Party of a
similar nature or (ii) the Secured Party takes any action in the custody or
preservation thereof reasonably specified by the Debtor in a written notice
received by the Secured Party in a reasonable time to evaluate and take such
action; provided, however, that (A) any failure to take such action shall
not of itself be deemed to be a failure to exercise such reasonable care,
(B) in no event shall the Secured Party be obligated to take such action if
the Secured Party determines that doing so would or might have any adverse
effect on the value of any of the Collateral or otherwise be incompatible with
any provision or purpose of this Agreement and (C) in no event shall the Secured
Party be obligated to (I) preserve any right, remedy or power against any
prior party obligated pursuant to any of the Collateral, whether or not in the
possession or under the control of the Secured Party, (II) ascertain or
notify the Debtor of any maturity, call, exchange, conversion, redemption,
offer, tender or similar matter relating to any of the Collateral, whether or
not the Secured Party has knowledge thereof, or (III) provide to the Debtor
any statement, confirmation, notice, proxy statement, proxy or other
communication received by the Secured Party or any nominee, Securities
Intermediary, Commodity Intermediary or other agent of the Secured Party and
relating to any of the Collateral.
gross
negligence, bad faith or willful misconduct as determined by a final judgment of
a court of competent jurisdiction.
manufacture,
purchase or other acquisition, ownership, possession, control, use, operation,
advertising or other promotion or sale, lease or other disposition of any of the
Collateral except to the extent caused by the gross negligence, bad faith or
willful misconduct of the Secured Party or such director, officer, employee,
accountant, attorney or other agent as determined by a final judgment of a court
of competent jurisdiction.
inadequate
price even if the Secured Party accepts the first offer received for or does not
approach more than one possible purchaser of such Security.
record of
any shareholders, members, directors or managers of the Debtor, (ii) do not
and will not violate or constitute any default under any agreement, instrument
or other Record by which the Debtor is bound, (iii) if the Debtor is not an
individual, are and will be in furtherance of the purposes and within the power
and authority of the Debtor and (iv) do not and will not require any
authorization of, notice to or other act by or relating to any Person
(including, but not limited to, if the Debtor is not an individual, any
shareholder, member, director or manager of the Debtor) that has not been duly
obtained, given or done and is not in full force and effect.
d.
Exhibit B Information;
Certificate or Other Record. Exhibit B attached to and made a
part of this Agreement fully and accurately describes (i) each Deposit Account
included in the Collateral, indicating the name and address of the depositary
institution, the account number and the account type of such Deposit
Account, (ii) each item of Investment Property included in
the Collateral, indicating the name of the Issuer or Securities Intermediary
obligated with respect thereto, the certificate or account number thereof and
the nature and quantity of ownership interests represented thereby, (iii) each
item of Goods included in the Collateral that is titled under the law of any
jurisdiction or is a vessel or aircraft, (iv) each Commercial Tort Claim
included in the Collateral that exists on the date of this Agreement, indicating
the nature thereof, all damages and other relief sought therein and, with
respect to any action or other legal proceeding that has been initiated with
respect thereto, the name of the court in which such action or other legal
proceeding is pending, the title and index number of such action or other legal
proceeding and the name of each counsel of record in such action or other legal
proceeding, (v) each item of Intellectual Property included in the Collateral,
indicating, if applicable, each jurisdiction in which such item is registered or
pending and each registration, application or other identifying
number of such item and describing each software code escrow or similar
agreement relating to such item to which the Debtor is a party or of which the
Debtor is a beneficiary and (vi) all real property on which any standing timber
included in the Collateral is located. All information contained in
such Exhibit B or any certificate or other Record submitted by or on behalf of
the Debtor to the Secured Party in connection with this Agreement is complete
and accurate.
Permitted
Liens, (ii) no presently effective Financing Statement or certificate of
title, and no pending application for any certificate of title or notice of
lien, relating to any of the Collateral and naming any Person other than the
Secured Party as a secured party other than those relating solely to Permitted
Liens, (iii) no contractual or other restriction on the grant or other
creation of any security interest in or assignment, pledge or hypothecation of
any of the Collateral, (iv) no demand, claim, counterclaim, setoff or
defense, no action or other legal proceeding, and no outstanding judgment or
order of any court, agency or other governmental body, relating to any of the
Collateral and (v) no Control Agreement (A) that relates to any Deposit Account,
Electronic Chattel Paper, Investment Property or Letter-of-Credit Right included
in the Collateral and (B) to which the Secured Party is not a
party.
g. Accounts, Chattel Paper, Deposit
Accounts, Documents, General Intangibles, Instruments, Investment Property,
Letter- of-Credit Rights and Letters of Credit. Each Account,
Chattel Paper, Deposit Account, Document, General Intangible, Instrument, item
of Investment Property, Letter-of Credit Right and letter of credit included in
the Collateral is or, if not now existing, will be genuine, in all respects what
it purports to be and enforceable in accordance with its terms against each
Person (including, but not limited to, any Account Debtor, Issuer,
Bank, Securities Intermediary or Commodity Intermediary) obligated
with respect thereto, subject to no demand, claim, counterclaim, setoff or
defense.
the
Debtor uses infringes, misappropriates, dilutes or otherwise violates any right
of such Person in such Intellectual Property or (B) any registration of or right
(including, but not limited to, any right as a licensor or licensee) in any such
Intellectual Property is other than in full force and effect. Each
registration of and each right (including, but not limited to, any right as a
licensor or licensee) of the Debtor in any Intellectual Property included in the
Collateral is in full force and effect.
other
transfer, compromise, cancellation, release, discharge, invalidity, impairment,
unenforceability, repudiation, revocation or change in any term or condition of,
defense or effect of any statute of limitations with respect to or grant of any
participation in, any of the Obligations or any other obligation of the Debtor
or any Other Obligor or other Person, (ii) any acceptance of any Other Obligor,
(iii) any taking, increase or decrease in value, impairment, unenforceability
repudiation, revocation or release of, collection or sale, lease or other
disposition of or other realization upon or failure or delaying to call for,
take any property as, hold, preserve, protect, insure or collect, sell, lease or
otherwise dispose of or otherwise realize upon any of the Collateral or any
Other Collateral, (iv) any failure or delaying to perfect, keep perfected or
maintain the priority of any security interest in or other lien on any of the
Collateral or any Other Collateral, (v) any exercise or waiver of, failure or
delaying to exercise, forbearance from exercising or failure to give any notice
prior to exercising any right, remedy or power of the Secured Party or any other
Person, whether relating to any of the Obligations, any of the Collateral or any
Other Collateral, against the Debtor or any Other Obligor or other Person or
otherwise, (vi) any incapacity, death or disability of or case or other
proceeding pursuant to any bankruptcy, insolvency or similar statute with
respect to the Debtor or any Other Obligor or other Person or any election, loan
or other extension of credit or taking of any collateral, subordination,
guaranty, endorsement or other security or assurance of payment in any such case
or other legal proceeding (including, but not limited to, pursuant to 11 U.S.C.
§1111(b) or 364), (vii) any failure of the Secured Party or any other Person to
make, prove or vote any claim relating to any of the Obligations, any of the
Collateral or any Other Collateral, or any failure of any such claim to be
allowed, in any case or other proceeding pursuant to any bankruptcy, insolvency
or similar statute, (viii) the Obligations being at any time or from time to
time paid in full or reduced and then increased or exceeding any amount, (ix)
any refusal or other failure of the Secured Party or any other Person to grant
any or any additional credit or other financial accommodation to the Debtor or
any Other Obligor or other Person or provide to the Debtor any or complete and
accurate information relating to any Other Obligor or other Person or the
business, operations, assets, affairs or condition (financial or other) of any
Other Obligor or other Person, regardless of whether such information relates to
any fact that increases the scope of the risk undertaken by the Debtor pursuant
to this Agreement or is unknown to the Debtor, (x) any notice to the Secured
Party or any other Person from any Other Obligor or other Person not to grant
any or any additional credit or other financial accommodation to the Debtor or
to take or not to take any other action, (xi) the acceptance by the Secured
Party or any other Person of any agreement, instrument or other Record intended
by the Debtor or any Other Obligor or other Person but not by the Secured Party
or such other Person to create an accord and
satisfaction
with respect to any of the Obligations or any other obligation of the Debtor or
any Other Obligor or other Person, (xii) any action taken or not taken by the
Secured Party or any other Person that increases the scope of the risk
undertaken by the Debtor pursuant to this Agreement (including, but not limited
to, any negligent servicing of any credit or other financial accommodation to
the Debtor or any Other Obligor), (xiii) the manner or order of any collection
or sale, lease or other disposition of or other realization upon any of the
Collateral or any Other Collateral, (xiv) the manner or order of application of
any money applied in payment of any of the Obligations, (xv) any change in the
ownership, membership, location, business, name, identity or structure of the
Debtor or any Other Obligor or other Person or (xvi) the execution and delivery
to the Secured Party by any Other Obligor or other Person of any agreement,
instrument or other Record providing any Other Collateral.
available
to the Debtor as a surety (including, but not limited to, any defense based upon
the principle that the obligation of a surety may not exceed or otherwise be
more burdensome that that of any Person for whom or which such surety acts as a
surety), as a result of any right of setoff, as a result of the
application of any anti-deficiency statute, single form of action rule, statute
or rule relating to the marshalling of collateral or similar statute or rule or
as a result of any election of any right, remedy or power by the Secured Party
or any other Person that would or might impair or otherwise adversely affect any
right of subrogation, reimbursement, indemnification or contribution, or any
similar right, against any Other Obligor in connection with this Agreement or
any of the Obligations or (vi) any right to terminate this Agreement except as
provided in Section 9 of the Agreement.
to this
Agreement as though each of them had executed and delivered to the Secured Party
a separate agreement identical to this Agreement, and (iii) this Agreement shall
be construed, interpreted and enforced, whether in any action or other legal
proceeding or otherwise, as to each of them as though each of them had executed
and delivered to the Secured Party a separate agreement identical to this
Agreement.
o. Governing
Law. Except to the extent that Article 9 of the Uniform
Commercial Code provides for the application of the law of any other
jurisdiction, this Agreement shall be governed by and construed, interpreted and
enforced in accordance with the law of the State of New York (including, but not
limited to, Sections 5-1401 and 5-1402 of the General Obligations Law of the
State of New York) and, to the extent applicable, the federal law of the United
States without regard to the law of any other jurisdiction.
17. CONSENTS
AND WAIVERS RELATING TO LEGAL PROCEEDINGS.
a. JURISDICTIONAL
CONSENTS AND WAIVERS. THE DEBTOR KNOWINGLY, VOLUNTARILY,
INTENTIONALLY AND IRREVOCABLY (i) CONSENTS IN EACH ACTION AND OTHER LEGAL
PROCEEDING COMMENCED BY THE SECURED PARTY AND ARISING OUT OF OR OTHERWISE
RELATING TO THIS AGREEMENT, ANY OF THE OBLIGATIONS, ANY OF THE COLLATERAL OR ANY
OTHER COLLATERAL TO THE NONEXCLUSIVE PERSONAL JURISDICTION OF ANY COURT THAT IS
EITHER A COURT OF RECORD OF THE STATE OF NEW YORK OR A COURT OF THE UNITED
STATES LOCATED IN THE STATE OF NEW YORK, (ii) WAIVES EACH OBJECTION TO THE
LAYING OF VENUE OF ANY SUCH ACTION OR OTHER LEGAL PROCEEDING, (iii) WAIVES
PERSONAL SERVICE OF PROCESS IN EACH SUCH ACTION AND OTHER LEGAL PROCEEDING,
(iv) CONSENTS TO THE MAKING OF SERVICE OF PROCESS IN EACH SUCH ACTION AND
OTHER LEGAL PROCEEDING BY REGISTERED MAIL DIRECTED TO THE DEBTOR AT THE LAST
ADDRESS OF THE DEBTOR SHOWN IN THE RECORDS RELATING TO THIS AGREEMENT MAINTAINED
BY THE SECURED PARTY,
WITH
SUCH SERVICE OF PROCESS TO BE DEEMED COMPLETED FIVE DAYS AFTER THE MAILING
THEREOF, (v) WAIVES IN EACH SUCH ACTION AND OTHER LEGAL PROCEEDING EACH
RIGHT TO ASSERT ANY NONMANDATORY COUNTERCLAIM, ANY SETOFF OR ANY DEFENSE BASED
UPON ANY STATUTE OF LIMITATIONS OR CLAIM OF LACHES, (vi) WAIVES EACH RIGHT
TO ATTACK ANY FINAL JUDGMENT THAT IS OBTAINED AS A RESULT OF ANY SUCH ACTION OR
OTHER LEGAL PROCEEDING AND (vii) CONSENTS TO EACH SUCH FINAL JUDGMENT BEING
SUED UPON IN ANY COURT HAVING JURISDICTION WITH RESPECT THERETO AND ENFORCED IN
THE JURISDICTION IN WHICH SUCH COURT IS LOCATED AS IF ISSUED BY SUCH
COURT.
b. WAIVER
OF TRIAL BY JURY AND CLAIMS TO CERTAIN DAMAGES. THE DEBTOR (i)
KNOWINGLY, VOLUNTARILY, INTENTIONALLY AND IRREVOCABLY WAIVES EACH RIGHT THE
DEBTOR MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO, AND EACH RIGHT TO ASSERT ANY
CLAIM FOR DAMAGES (INCLUDING, BUT NOT LIMITED TO, PUNITIVE DAMAGES) IN ADDITION
TO ACTUAL DAMAGES IN, ANY ACTION OR OTHER LEGAL PROCEEDING, WHETHER BASED ON ANY
CONTRACT OR NEGLIGENT, INTENTIONAL OR OTHER TORT OR OTHERWISE, ARISING OUT OF OR
OTHERWISE RELATING TO (A) THIS AGREEMENT, ANY OF THE OBLIGATIONS, ANY OF THE
COLLATERAL OR ANY OTHER COLLATERAL, (B) ANY TRANSACTION ARISING OUT OF OR
OTHERWISE RELATING TO THIS AGREEMENT, ANY OF THE OBLIGATIONS, ANY OF THE
COLLATERAL OR ANY OTHER COLLATERAL OR (C) ANY NEGOTIATION, ADMINISTRATION,
PERFORMANCE OR ENFORCEMENT OF THIS AGREEMENT, ANY OF THE OBLIGATIONS, ANY OF THE
COLLATERAL OR ANY OTHER COLLATERAL AND (ii) CERTIFIES THAT NEITHER THE SECURED
PARTY NOR ANY REPRESENTATIVE OF THE SECURED PARTY HAS REPRESENTED TO THE DEBTOR
THAT THE SECURED PARTY WILL NOT SEEK TO ENFORCE THE WAIVER MADE BY THE DEBTOR IN
THIS SECTION 17b.
Dated: As
of June __, 2008
PNG VENTURES, INC., a Nevada
corporation
By: /s/ Xxxxx
Xxxxxx
Name: Xxxxx
Xxxxxx
Title: CEO
APPLIED
LNG TECHNOLOGIES
USA, L.L.C., a Delaware limited
liability
company
By: New
Earth LNG, LLC, a Delaware
limited
liability company, its sole
member
By: /s/ Xxxxx
Xxxxxx
Name: Xxxxx
Xxxxxx
Title: President
FLEET STAR, INC., a
Delaware
corporation
By: /s/ Xxxxxx X. XxXxxxxxxx,
III
Name: Xxxxxx
X. XxXxxxxxxx, III
Title:
Chief Executive Officer
EARTH LEASING, INC., a
Texas
corporation
By: /s/ Xxxxxx X. XxXxxxxxxx,
III
Name: Xxxxxx
X. XxXxxxxxxx, III
Title: Chief
Executive Officer
ARIZONA LNG, L.L.C.,
a
Nevada
limited liability company
By: New
Earth LNG, LLC, a Delaware
limited
liability company, its sole
member
By: /s/ Xxxxx
Xxxxxx
Name: Xxxxx
Xxxxxx
Title: President
NEW EARTH LNG, LLC,
a
Delaware
limited liability company
By: /s/ Xxxxx
Xxxxxx
Name: Xxxxx
Xxxxxx
Title: President
EXHIBIT
A
Permitted
Liens
Any Liens
(as such term is defined in the Senior Credit Agreement) permitted pursuant to
Section 7.2 of the Senior Credit Agreement.
EXHIBIT
B
Section
13d(i): Information Concerning Deposit Accounts
Section
13d(ii): Information Concerning Investment
Property
Section
13d(iii): Information Concerning Titled Goods, Vessels and
Aircraft
Section
13d(iv): Information Concerning Commercial Tort
Claims
Section 13d
(iv): Information Concerning Intellectual
Property
Section
13d(vi): Information Concerning Standing Timber
EXHIBIT
C
GENERAL
SECURITY AGREEMENT SUPPLEMENT
(INTELLECTUAL
PROPERTY INCLUDING PATENTS, TRADEMARKS AND COPYRIGHTS)
In
consideration of __________________________________________________________, a
(an) ______________________
_______________
organized under the law of ________________________________ and having an office
at
___________________________________________________________________________________,
(the “Secured Party”) heretofore or hereafter (1) extending or agreeing to
extend any credit or other financial accommodation to or relying on any
guaranty, endorsement or other assurance of payment of
__________________________________________________________,
a (an)
__________________________________ residing at, or organized under the law of
______________________________ and having its chief executive office at,
________________________________________________________________________
__________________________,
(the “Debtor”) or (2) agreeing to any direct or indirect extension,
renewal, refinancing or other modification or replacement of or waiving or
forbearing from exercising any right, remedy or power relating to any obligation
heretofore or hereafter arising or accruing as a result of any such credit or
other financial accommodation, and for other valuable consideration, the receipt
and sufficiency of which are conclusively acknowledged by the Debtor, the Debtor
agrees with the Secured Party as follows:
1. DEFINITIONS. In
this Agreement:
a. General Security
Agreement. The “General Security Agreement” means a General
Security Agreement, dated ___________ 20__, from the Debtor to the
Secured Party.
b. Intellectual
Property. “Intellectual Property” means, regardless of kind or
nature and wherever in the world existing, used, issued or pending, (i) any
patent or invention disclosed or claimed in any patent, (ii) any copyright,
copyright registration or tangible personal property embodying any copyright,
(iii) any trademark, service xxxx, trade style or trade dress (including, but
not limited to, any trade, company, fictitious or other business or other name,
logo or other source or business identifier), whether registered in any public
office or not so registered, (iv) any trade secret (including, but not limited
to, any
know-how,
technology, procedure, product formulation or other product or manufacturing
specification or standard) or other confidential or proprietary business or
technical data or other information, (v) any unpatented invention, whether or
not patentable, (vi) any industrial or other design or design application, (vii)
any domain name or domain name registration, (viii) any software or software
source code, (ix) any other intellectual or similar property, (x) any license,
franchise agreement or other agreement, whether embodied in any Record or
otherwise, providing for the grant by or to any Person of any right to
manufacture, use, sell, distribute or otherwise exploit any of the things
referred to in clauses (i) through (ix) of this sentence or (x) any registration
or recording of, application for, reissue, renewal, continuation or extension
of, goodwill symbolized by, incident to, associated with or otherwise relating
to or Incidental Property Right or Record relating to any of the things referred
to in clauses (i) through (ix) of this sentence.
c. Incidental Property
Right. “Incidental Property Right” means, whether arising or
accruing pursuant to applicable law or any agreement, instrument or other Record
or otherwise, (i) any direct or indirect addition to, extension, renewal,
refinancing or other modification or replacement of, increase in or earnings,
profit, interest, dividend or distribution of cash or other property or other
income or payment on account of any property, (ii) any direct or indirect
Proceeds or other proceeds of any replacement, release, surrender, discharge,
exchange, conversion, redemption, assignment or other transfer, collection or
sale, lease or other disposition of any property, whether voluntary or
involuntary or arising or accruing pursuant to any dissolution, liquidation or
merger, consolidation or other absorption or otherwise, or (iii) any direct or
indirect right, privilege, power or claim relating to any property (including,
but not limited to, any right to any of the things referred to in clauses (i)
and (ii) of this sentence, any option or warrant, any right of subscription,
registration, conversion or redemption, any management right or any right to
vote or give any consent, ratification or other approval or authorization
(including, but not limited to, any right to vote or give any consent,
ratification or other approval or authorization for any replacement of any of
the directors, officers and managers of, amendment of any certificate or
articles of incorporation or organization, by-laws, operating or partnership
agreement or other charter, organizational or other governing document of,
dissolution, liquidation or merger, consolidation or other absorption of or
sale, lease or other disposition of all or substantially all of the assets of
any Issuer of any General Intangible or Investment Property)).
d. Obligations. The
“Obligations” means collectively, whether now existing or hereafter arising or
accruing and whether or not arising or accrued subsequent to any commencement of
or made, proved,
voted or
allowed as a claim in any case or other proceeding pursuant to any bankruptcy,
insolvency or similar statute, all obligations to the Secured Party in any
capacity for (i) the payment of any money, however evidenced,
regardless of kind or nature, whether for the payment of any principal,
interest, fee, charge, cost or expense or otherwise, incurred for any business,
commercial or agricultural purpose or otherwise, created directly or by any
assignment or other transfer, direct or indirect, absolute or contingent
(whether pursuant to any guaranty, endorsement or other assurance of payment or
otherwise), similar or dissimilar or related or unrelated, or (ii) the
performance of any other obligation that have been heretofore or are hereafter
incurred by, in any capacity (including, but not limited to, as a
debtor-in-possession after the commencement of any case or other proceeding
pursuant to any bankruptcy, insolvency or similar statute) and whether alone or
otherwise, the Debtor or any direct or indirect legal representative, successor
or assignee of the Debtor or direct or indirect assignee or other transferee of
all or substantially all of the assets of the Debtor (including, but not limited
to, any estate created by the commencement of any case or other proceeding
pursuant to any bankruptcy, insolvency or similar statute and any receiver,
trustee, custodian or similar Person for the Debtor or any of the assets of the
Debtor) (including, but not limited to, all obligations of the Debtor to the
Secured Party pursuant to Section 8 of the Security Agreement).
e. Person. “Person”
means (i) any individual, corporation, partnership, limited liability company,
joint venture, trust, unincorporated association, government, political
subdivision or other taxing authority, (ii) any court, agency or other
governmental body or (iii) any other entity, body, organization or
group.
f. Security
Interest. “Security Interest” means any security interest or
other lien granted or otherwise created pursuant to the second sentence of
Section 2 of this Agreement.
g. Uniform Commercial
Code. “Uniform Commercial Code” means at any time the Uniform
Commercial Code of the State of New York as in effect at such time.
h. Other Terms. Each
of the following terms has at any time the meaning given it at such time for
purposes of Article 9 of the Uniform Commercial Code: (i) General
Intangible, (ii) Investment Property, (iii) Proceeds, (iv) Products,
(v) Record and (vi) Supporting Obligations.
2. REAFFIRMATION OF GENERAL SECURITY
AGREEMENT; SUPPLEMENTAL GRANT OF SECURITY INTEREST. The Debtor
acknowledges, reaffirms and ratifies in all respects
the
General Security Agreement as through all provisions thereof were fully set
forth in this Agreement, including, but not limited to, the grant by the Debtor
of a security interest in all Intellectual Property included in the Collateral,
as such term is defined in the General Security
Agreement. Without limiting the generality of the foregoing, to
secure the payment and other performance of the Obligations, the Debtor grants
to the Secured Party a security interest in, and assigns, pledges and
hypothecates to the Secured Party, all right, title and interest of the Debtor
in and to, wherever located, whether now owned or hereafter acquired or now
existing or hereafter arising or accruing and whether or not subject to Article
9 of the Uniform Commercial Code or described in any schedule heretofore or
hereafter delivered to the Secured Party by the Debtor, (i)
Intellectual Property (including, but not limited to, all Intellectual Property
described on Exhibit A-I (Patents), Exhibit A-II (Trademarks) and Exhibit A-III
(Copyrights) attached to and made a part of this Agreement) and
(ii) (A) Supporting Obligations and Incidental Property Rights
incident to, arising or accruing pursuant to or otherwise relating to any of the
things referred to in clause (i) of this sentence, whether arising or accruing
from any action taken by the Debtor or the Secured Party or otherwise, (B)
Proceeds, other proceeds and Products of any of the things referred to in
clauses (i) and (ii)(A) of this sentence and (C) Records relating to any of the
things referred to in clauses (i) and (ii)(A) and (B) of this sentence, except
that, with respect to any thereof that would be rendered void or voidable under
applicable law by such grant, assignment, pledge and hypothecation without the
consent of a Person other than the Debtor that has not been or is not obtained,
such grant, assignment, pledge and hypothecation shall not be effective until
such consent is obtained. Each Security Interest is a continuing,
absolute and unconditional security interest or other lien.
3. GOVERNING
LAW. Except to the extent that Article 9 of the Uniform
Commercial Code provides for the application of the law of any other
jurisdiction, this Agreement shall be governed by and construed, interpreted and
enforced in accordance with the law of the State of New York (including, but not
limited to, Sections 5-1401 and 5-1402 of the General Obligations Law of the
State of New York) and, to the extent applicable, the federal law of the United
States without regard to the law of any other jurisdiction.
Dated _______________,
20__ _________________________________________
_________________________________________
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