GUARANTEE AND COLLATERAL AGREEMENT DATED AS OF MARCH 24, 2010 BY APPLIED NATURAL GAS FUELS, INC. NEW EARTH LNG, LLC APPLIED LNG TECHNOLOGIES USA, L.L.C. FLEET STAR, INC. EARTH LEASING, INC. AND ARIZONA LNG, L.L.C. AS GRANTORS, IN FAVOR OF FOURTH THIRD...
DATED AS OF MARCH 24, 2010
BY
APPLIED NATURAL GAS FUELS, INC.
NEW EARTH LNG, LLC
APPLIED LNG TECHNOLOGIES USA, L.L.C.
FLEET STAR, INC.
EARTH LEASING, INC.
AND
ARIZONA LNG, L.L.C.
AS GRANTORS,
IN FAVOR OF
FOURTH THIRD LLC,
AS AGENT
TABLE OF CONTENTS
Page |
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Section 1. |
Definitions |
1 | |||||
1.01. |
Definition of Terms Used Herein Generally |
1 | |||||
1.02. |
Definition of Certain Terms Used Herein |
1 | |||||
1.03. |
Rules of Interpretation |
7 | |||||
Section 2. |
Guarantee |
7 | |||||
2.01. |
Guarantee |
7 | |||||
2.02. |
Right of Contribution |
8 | |||||
2.03. |
Subrogation |
8 | |||||
2.04. |
Amendments, etc. with respect to the Borrower Obligations |
9 | |||||
2.05. |
Guarantee Absolute and Unconditional |
9 | |||||
2.06. |
Reinstatement |
10 | |||||
2.07. |
Payments |
10 | |||||
2.08. |
Waiver of Subrogation |
10 | |||||
Section 3. |
Grant of Security Interest |
12 | |||||
Section 4. |
Authorization to File Financing Statements |
13 | |||||
Section 5. |
Relation to Other Security Documents |
14 | |||||
5.01. |
Real Estate Documents |
14 | |||||
5.02. |
Patent and Trademark Security Agreement Supplements |
14 | |||||
Section 6. |
Representations and Warranties |
14 | |||||
6.01. |
Grantors’ Legal Status |
14 | |||||
6.02. |
Grantors’ Legal Names |
14 | |||||
6.03. |
Grantors’ Locations |
14 | |||||
6.04. |
Representations in the Credit Agreement |
14 | |||||
6.05. |
Title to Collateral |
15 | |||||
6.06. |
Nature of Collateral |
15 | |||||
6.07. |
Compliance with Laws |
15 | |||||
6.08. |
Validity of Security Interest |
15 | |||||
6.09. |
Perfection Certificate; Intellectual Property Filings |
16 | |||||
6.10. |
Investment Property |
16 | |||||
6.11. |
Receivables |
16 | |||||
6.12. |
Accounts |
17 | |||||
6.13. |
Equipment and Inventory |
17 |
Section 7. |
Covenants |
17 | |||||
7.01. |
Grantors’ Legal Status |
17 | |||||
7.02. |
Grantors’ Names |
17 | |||||
7.03. |
Grantors’ Organizational Numbers |
17 | |||||
7.04. |
Locations |
17 | |||||
7.05. |
Covenants in Credit Agreement |
17 | |||||
7.06. |
Promissory Notes and Tangible Chattel Paper |
17 | |||||
7.07. |
Deposit Accounts |
18 | |||||
7.08. |
Investment Property |
18 | |||||
7.09. |
Collateral in the Possession of a Bailee |
20 | |||||
7.10. |
Electronic Chattel Paper and Transferable Records |
20 | |||||
7.11. |
Letter-of-Credit Rights |
21 | |||||
7.12. |
Commercial Tort Claims |
21 | |||||
7.13. |
Intellectual Property |
21 | |||||
7.14. |
Maintenance of Collateral; Compliance with Laws |
24 | |||||
7.15. |
Dispositions of Collateral |
24 | |||||
7.16. |
Maintenance of Insurance |
24 | |||||
7.17. |
Periodic Certification |
24 | |||||
7.18. |
Other Actions as to any and all Collateral |
24 | |||||
Section 8. |
Inspection and Verification |
25 | |||||
Section 9. |
Collateral Protection Expenses; Preservation of Collateral |
25 | |||||
9.01. |
Expenses Incurred by the Agent |
25 | |||||
9.02. |
Agent’s Obligations and Duties |
26 | |||||
9.03. |
Duties as to Pledged Securities |
26 | |||||
Section 10. |
Securities and Deposits |
27 | |||||
Section 11. |
Notification to Account Debtors and Other Persons Obligated on Collateral |
28 | |||||
Section 12. |
Power of Attorney. |
28 | |||||
12.01. |
Appointment and Powers of Agent |
28 | |||||
12.02. |
Failure of Grantor to Perform |
30 | |||||
12.03. |
Expenses of Attorney-in-Fact |
30 | |||||
12.04. |
Ratification by Grantor |
30 | |||||
12.05. |
No Duty on Agent |
30 |
Section 13. |
Remedies |
30 | |||||
13.01. |
Default |
30 | |||||
13.02. |
Remedies Upon Default |
30 | |||||
13.03. |
Grant of License to Use Intellectual Property |
32 | |||||
13.04. |
Waivers by Grantors |
32 | |||||
13.05. |
Application of Proceeds |
32 | |||||
13.06. |
Surplus, Deficiency |
33 | |||||
13.07. |
Information Related to the Collateral |
33 | |||||
13.08. |
Sale Exempt from Registration |
33 | |||||
13.09. |
Rights and Remedies Cumulative |
33 | |||||
13.10. |
No Direct Enforcement by Secured Creditors |
34 | |||||
Section 14. |
Standards for Exercising Remedies |
34 | |||||
14.01. |
Commercially Reasonable Manner |
34 | |||||
14.02. |
Standard of Care |
34 | |||||
Section 15. |
Waivers by Grantor; Obligations Absolute |
35 | |||||
15.01. |
Specific Waivers |
35 | |||||
15.02. |
Obligations Absolute |
35 | |||||
Section 16. |
Marshalling |
35 | |||||
Section 17. |
Interest |
35 | |||||
Section 18. |
Reinstatement |
36 | |||||
Section 19. |
Miscellaneous |
36 | |||||
19.01. |
Notices |
36 | |||||
19.02. |
GOVERNING LAW; CONSENT TO JURISDICTION |
36 | |||||
19.03. |
WAIVER OF JURY TRIAL, ETC. |
36 | |||||
19.04. |
Counterparts |
37 | |||||
19.05. |
Headings |
37 | |||||
19.06. |
No Strict Construction |
37 | |||||
19.07. |
Severability |
37 | |||||
19.08. |
Survival of Agreement |
37 | |||||
19.09. |
Fees and Expenses; Indemnification |
37 | |||||
19.10. |
Binding Effect; Several Agreement |
38 | |||||
19.11. |
Waivers; Amendment |
38 |
TABLE OF CONTENTS
19.12. |
Set-Off |
38 | |||||
19.13. |
Integration |
39 | |||||
19.14. |
Acknowledgments |
39 | |||||
19.15. |
Additional Grantors and Guarantors |
39 | |||||
19.16. |
Releases |
39 | |||||
19.17. |
Intercompany Debt |
40 |
SCHEDULES
7.07(a) Deposit Accounts
EXHIBITS
A Perfection Certificate
B Form of Copyright Security Agreement Supplement
C Form of Patent Security Agreement Supplement
D Form of Trademark Security Agreement Supplement
E Form of Control Agreement (Deposit Accounts)
F Form of Control Agreement (Uncertificated Securities)
G Form of Control Agreement (Securities Accounts)
H Form of Control Agreement (Commodities Contracts)
I Form of Control Agreement (Letter-of-Credit Rights)
ANNEXES
1 Form of Assumption Agreement
GUARANTEE AND COLLATERAL AGREEMENT, dated as of March 24, 2010, by each of the signatories hereto identified on the signature pages hereto as a grantor (together with any other entity that may become a party hereto as a grantor as provided herein, each a “Grantor”
and collectively, jointly and severally, the “Grantors”) in favor of FOURTH THIRD LLC as Collateral Agent (in such capacity, the “Agent”) for itself in its capacity as the Agent and a Lender under the Credit Agreement (as hereinafter defined) (the “Lender”), together with the banks
and other financial institutions or entities (collectively, the “Lenders”) from time to time party to the Credit Agreement, dated as of March 24, 2010 (as amended, supplemented or otherwise modified from time to time, the “Credit Agreement”) among APPLIED NATURAL GAS FUELS, INC., a Nevada corporation (“Borrower”),
the other Loan Parties named therein, the Lenders and the Agent, and the other Secured Creditors (as hereinafter defined).
“After-Acquired Intellectual Property”: as defined in Section 7.13.
“Agent”: as defined in the preamble.
“Agreement”: this Guarantee and Collateral Agreement, as the same may be amended, supplemented, replaced or otherwise modified from time to time.
“Borrower”: as defined in the preamble. Any references herein to “Earth LNG” or to “each,” “either” or “such” Borrower or to the “applicable” Borrower, or to the “Borrowers”
shall mean and refer to Borrower.
“Borrower Obligations”: the Obligations (as defined in the Credit Agreement).
“Collateral”: as defined in Section 3.
“Collateral Agent” means Fourth Third LLC in its capacity as agent for the lenders under the Credit Agreement and the other Secured Creditors.
“Copyright License”: any written agreement, now or hereafter in effect, granting any right to any third party under any Copyright now or hereafter owned by any Grantor or that the Grantor otherwise has the right to license, or granting any right to
any Grantor under any Copyright now or hereafter owned by any third party, and all rights of any Grantor under any such agreement.
“Copyright Office”: the United States Copyright Office.
“Copyrights”: (i) all copyrights, whether or not the underlying works of authorship have been published, and all works of authorship and other intellectual property rights therein, all copyrights of works based on, incorporated in, derived from or relating
to works covered by such copyrights, all right, title and interest to make and exploit all derivative works based on or adopted from works covered by such copyrights, and all copyright registrations and copyright applications, and any renewals or extensions thereof, including, without limitation, each registration and application identified in Schedule 7(b) to the Perfection Certificate, (ii) the rights to print, publish and distribute any
of the foregoing, (iii) the right to xxx or otherwise recover for any and all past, present and future infringements and misappropriations thereof, (iv) all income, royalties, damages and other payments now and hereafter due and/or payable with respect thereto (including, without limitation, payments under all Copyright Licenses entered into in connection therewith, and damages and payments for past, present or future infringements thereof), and (v) all other rights of any kind whatsoever accruing thereunder
or pertaining thereto.
“Copyright Security Agreement Supplement”: a supplement to this Agreement, executed by one or more Grantors in favor of the Agent, substantially in the form of Exhibit B hereto.
“Credit Agreement”: as defined in the preamble. Any references herein to “each, “either” or “such” Credit Agreement, or the “applicable” Credit Agreement, or to the “Credit Agreements”
shall mean and refer to the Credit Agreement.
“Disposition”: with respect to any Property, and except as otherwise provided in Sections 7.13(a)(x) and 7.15, any sale,
lease, license, sale and leaseback, assignment, conveyance, transfer or other disposition thereof, but not including the issuance of capital stock or other equity interests by either Borrower; and the terms “Dispose” and “Disposed of” shall have correlative meanings.
“Event”: as defined in Section 9.03 hereof.
“Event of Default”: as defined in the Credit Agreement.
“Excluded Assets”: collectively (a) any General Intangible to the extent that (i) the terms of the agreement between the applicable Grantor and the account debtor or other contract party with respect to such General Intangible prohibits, restricts or
requires the consent of the account debtor to, the assignment or transfer of, or creation, attachment or perfection of a security interest in, such General Intangible, or provides that the assignment or transfer or creation, attachment or perfection of such security interest may give rise to a default, breach, right of recoupment, claim,
defense, termination, right of termination or remedy and (ii) such terms are effective under Sections 9-406, 9-407 or 9-408 of the NYUCC, and (b) any property that is subject to a Lien permitted under Section 7.2 of the Credit Agreement pursuant to documents that prohibit
the applicable Grantor from granting other liens in such property.
“Excluded Foreign Subsidiary Voting Stock”: the voting capital stock or other equity interests of any Foreign Subsidiary owned by either Borrower or a Domestic Subsidiary thereof.
“Fully Satisfied”: with respect to the Secured Obligations, Guarantor Obligations or Borrower Obligations, as the case may be, at any time that (a) all principal constituting Secured Obligations, Guarantor Obligations or Borrower Obligations, as the
case may be, and all interest (including interest that shall have accrued after the commencement of a bankruptcy proceeding with respect to either Borrower or any Guarantor at the rate provided in the Loan Documents) accrued to such time on such principal and on all other Secured Obligations, Guarantor Obligations or Borrower Obligations, as the case may be, shall have been paid in full in cash, (b) all fees, expenses and other amounts (including contingent obligations, including those in respect of indemnification
provisions contained in the Loan Documents, but excluding obligations in respect of such indemnification provisions for which no claim has been made and for which no notice of claim has been given) unpaid as of such time which constitute Secured Obligations, Guarantor Obligations or Borrower Obligations, as the case may be, shall have been paid in full in cash, and (c) the Commitments shall have expired or been terminated.
“General Intangibles”: all “general intangibles” as such term is defined in Section 9-102(42) of the NYUCC as in effect on the date hereof and, in any event, including, without limitation, with respect to any Grantor, all contracts, agreements,
instruments and indentures and all licenses and permits issued by Governmental Authorities in any form, and portions thereof, to which such Grantor is a party or under which such Grantor has any right, title or interest or to which such Grantor or any property of such Grantor is subject, as the same may from time to time be amended, supplemented, replaced or otherwise modified, including, without limitation, (i) all rights of such Grantor to receive moneys due and to become due to it thereunder or in connection
therewith, (ii) all rights of such Grantor to receive proceeds of any insurance, indemnity, warranty or guaranty with respect thereto, (iii) all rights of such Grantor to damages arising thereunder, (iv) all rights of such Grantor to receive any tax refunds, and (v) all rights of such Grantor to terminate and to perform, compel performance and to exercise all remedies thereunder.
“Grantor”: as defined in the preamble.
“Guarantor Obligations”: with respect to any Guarantor, all obligations and liabilities of such Guarantor which may arise under or in connection with this Agreement (including, without limitation, Section
2) or any other Loan Document to which such Guarantor is a party, in each case whether on account of guarantee obligations, reimbursement obligations, fees, indemnities, costs, expenses or otherwise (including, without limitation, all fees and disbursements of counsel to any Secured Creditor that are required to be paid by such Guarantor pursuant to the terms of this Agreement or any other Loan Document).
“Guarantor Payment”: as defined in Section 2.11(a).
“Guarantors”: the collective reference to each Grantor, other than Borrower.
“Intellectual Property”: all intellectual and similar property of any Grantor of every kind and nature now owned or hereafter acquired by any Grantor, including (i) all inventions, designs, Patents, Patent Licenses, Trademarks, Trademark Licenses,
Copyrights, Copyright Licenses, Trade Secrets, designs, confidential or proprietary technical and business information, know how, show how or other data or information, software and databases and all embodiments or fixations thereof and related documentation, registrations and franchises, licenses for any of the foregoing and all license rights and all additions, improvements and accessions to, and books and records describing or used in connection therewith, (ii) all computer software and software systems
(including, without limitation, data, databases and related documentation), and (iii) all Internet web sites and domain names.
“Intellectual Property Security Agreement”: each of a Copyright Security Agreement Supplement, a Patent Security Agreement Supplement and a Trademark Security Agreement Supplement.
“Intercompany Debt”: as defined in Section 19.17.
“Intercompany Note”: any promissory note evidencing loans made by any Grantor to any of its Subsidiaries or any loan made by any Grantor to another Grantor.
“Investment Property”: the collective reference to (i) all “investment property” as such term is defined in Section 9-102(48) of the NYUCC on the date hereof including, without limitation, all certificated securities and uncertificated securities,
all security entitlements, all securities accounts, all commodity contracts and all commodity accounts (other than any Excluded Foreign Subsidiary Voting Stock excluded from the definition of “Pledged Stock”), (ii) security entitlements, in the case of any United States Treasury book-entry securities, as defined in 31 C.F.R. section 357.2, or, in the case of any United States federal agency book-entry securities, as defined in the corresponding United States federal regulations governing such
book-entry securities, and (iii) whether or not constituting “investment property” as so defined, all Pledged Notes, all Pledged Stock, all Pledged Security Entitlements and all Pledged Commodity Contracts.
“Issuers”: the collective reference to each issuer of a Pledged Security.
“Lease”: any lease of personal property under which any Grantor is the lessee.
“NYUCC”: the Uniform Commercial Code as in effect in the State of New York from time to time.
“Patent License”: any written agreement, now or hereafter in effect, granting to any third party any right to make, use or sell any invention on which a Patent, now or hereafter owned by any Grantor or that any Grantor otherwise has the right to license,
is in existence, or granting to any Grantor any right to make, use or sell any invention on which a Patent, now or hereafter owned by any third party, is in existence, and all rights of any Grantor under any such agreement.
“Patents”: all of the following now owned or hereafter acquired by any Grantor: (a) all letters patent of the United States or any other country, all registrations and recordings thereof, and all pending applications for letters patent
of the United States or any other country, including registrations, recordings and applications in the PTO or in any similar office or agency of the United States, any State or Territory thereof, or any other country, including those identified in
Schedule 7(a) to the Perfection Certificate, and (b) all reissues, continuations, divisions, continuations-in-part, renewals or extensions thereof and the inventions disclosed or claimed therein, including the right to make, use and/or sell inventions disclosed
or claimed therein.
“Patent Security Agreement Supplement”: a supplement to this Agreement, executed by one or more Grantors in favor of Collateral Agent, substantially in the form of Exhibit C hereto.
“Perfection Certificate”: shall mean a certificate substantially in the form of Exhibit A hereto, completed and supplemented with the schedules and attachments contemplated thereby,
and duly executed by the Grantors.
“Perfection Supplement”: shall have the meaning assigned to such term in Section 7.17.
“Person”: any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, Governmental Authority or other entity.
“Pledged Commodity Contracts”: all commodity contracts listed in Section 8 of the Perfection Certificate, and all other commodity contracts to which any Grantor is party from time
to time.
“Pledged Debt Securities”: the debt securities listed in Section 9 of the Perfection Certificate, together with any other certificates, options, rights or security entitlements of
any nature whatsoever in respect of the debt securities of any Person that may be issued or granted to, or held by, any Grantor while this Agreement is in effect.
“Pledged Notes”: all promissory notes listed in Section 9 of the Perfection Certificate, all Intercompany Notes at any time issued to any Grantor and all other promissory notes issued
to or held by any Grantor (other than promissory notes in an aggregate principal amount for all Grantors not to exceed $250,000 at any time outstanding issued in connection with extensions of trade credit by any Grantor in the ordinary course of business).
“Pledged Securities”: the collective reference to the Pledged Debt Securities, the Pledged Notes and the Pledged Stock.
“Pledged Security Entitlements”: all security entitlements with respect to the financial assets listed on Section 8 of the Perfection Certificate and all other security entitlements
of any Grantor.
“Pledged Stock”: the shares of capital stock or other equity interests owned at any time or from time to time by any Grantor in any other Grantor, including, without limitation, in the case of Borrower, all shares of capital stock, or membership interests,
as applicable, in all Grantors that are Subsidiaries of Borrower, together with any other shares, stock certificates, options, rights or security entitlements of any nature whatsoever in respect of the capital stock or other equity interests of any Person that may be issued or granted to, or held by, any Grantor while this Agreement is in effect; provided that in no event shall more than 65% of the total outstanding voting capital stock of any Foreign
Subsidiary be required to be pledged hereunder or any capital stock of any Foreign Subsidiary owned by a Foreign Subsidiary be required to be pledged hereunder; provided, further, that in no event shall capital stock or other equity interests of any Subsidiary of Borrower that is not a Loan Party be required to be pledged hereunder.
“Proceeds”: all “proceeds” as such term is defined in Section 9-102(64) of the NYUCC in effect on the date hereof and, in any event, shall include, without limitation, all dividends or other income from the Pledged Securities, collections
thereon or distributions or payments with respect thereto.
“Property”: any right or interest in or to property of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible, including capital stock or other equity interests.
“PTO”: the United States Patent and Trademark Office.
“Receivable”: any right to payment on account of any obligation that could create any right to receive money, whether or not such right is evidenced by an instrument or chattel paper and whether or not it has been earned by performance (including, without
limitation, any account or payment intangible).
“Secured Creditors”: collectively, the Collateral Agent, Fourth Third LLC, as agent under the Credit Agreement, and the Lenders under and as defined in the Credit Agreement.
“Secured Obligations”: the Borrower Obligations and the Guarantor Obligations.
“Securities Act”: the Securities Act of 1933, as amended.
“Security Documents”: this Agreement, the Intellectual Property Security Agreements, all deposit account control agreements and similar agreements, all landlord waivers, bailee letters and similar documents and all other pledge or security agreements,
“Mortgages” (as such term is defined in the Credit Agreement), assignments or other similar agreements or instruments executed and delivered by any Grantor pursuant to Section 6.8 or Section 6.9 of the Credit Agreement or otherwise in connection with the transactions contemplated thereby, in each case as
amended, modified, restated or supplemented from time to time.
“Security Interest”: the security interest granted pursuant to Section 3, as well as all other security interests created or assigned as additional security for the Secured Obligations
pursuant to the provisions of this Agreement.
“Subsidiary Guarantor”: any Guarantor that is a Subsidiary of Borrower.
“Trade Secret License”: any agreement, whether written or oral, providing for the grant by or to any Grantor of any right to use any Trade Secret, including, without limitation, any of the foregoing referred to on Schedule 7(a) to
the Perfection Certificate.
“Trade Secrets”: (i) all trade secrets and all confidential and proprietary information, including know-how, trade secrets, manufacturing and production processes and techniques, inventions, research and development information, technical data, financial,
marketing and business data, pricing and cost information, business and marketing plans, and customer and supplier lists and information, including, without limitation, those identified in Schedule 7(a) to the Perfection Certificate, (ii) the right to xxx or otherwise recover for any and all past, present and future infringements and misappropriations thereof, (iii) all income, royalties, damages and other payments now and hereafter due and/or
payable with respect thereto (including, without limitation, payments under all licenses entered into in connection therewith, and damages and
payments for past, present or future infringements thereof), and (iv) all other rights of any kind whatsoever of such Grantor accruing thereunder or pertaining thereto.
“Trademark License”: any written agreement, now or hereafter in effect, granting to any third party any right to use any Trademark now or hereafter owned by any Grantor or that any Grantor otherwise has the right to license, or granting to any Grantor
any right to use any Trademark now or hereafter owned by any third party, and all rights of any Grantor under any such agreement.
“Trademark Security Agreement Supplement”: a supplement to this Agreement, executed by the Grantor in favor of Agent, substantially in the form of Exhibit D hereto.
“Trademarks”: (i) all trademarks, service marks, trade names, corporate names, company names, business names, domain names, trade dress, trade styles, logos, or other indicia of origin or source identification, trademark and service xxxx registrations,
and applications for trademark or service xxxx registrations and any renewals thereof, including, without limitation, those identified in Schedule 7(a) to the Perfection Certificate, (ii) the right to xxx or otherwise recover for any and all past, present and future infringements and misappropriations thereof, (iii) all income, royalties, damages and other payments now and hereafter due and/or payable with respect thereto (including,
without limitation, payments under all Trademark Licenses entered into in connection therewith, and damages and payments for past, present or future infringements thereof), and (iv) all other rights of any kind whatsoever accruing thereunder or pertaining thereto, together in each case with the goodwill of the business connected with the use of, and symbolized by, each of the above.
“UCC”: the Uniform Commercial Code as in effect in any jurisdiction (except as otherwise contemplated in Section 7.18). References to particular sections of Article 9 of
the UCC shall be, unless otherwise indicated, references to Revised Article 9 of the UCC adopted and effective in certain jurisdictions on or after July 1, 2001.
1.03. Rules of Interpretation. The rules of interpretation specified in Section 1.2 of Credit Agreement shall be applicable to this
Agreement. References to “Sections”, “Exhibits” and “Schedules” shall be to Sections, Exhibits and Schedules, respectively, of this Agreement unless otherwise specifically provided. Any of the terms defined in this Section 1 may, unless the context otherwise requires, be used in the singular or the plural depending on the reference. All references to
statutes and related regulations shall include (unless otherwise specifically provided herein) any amendments of same and any successor statutes and regulations.
(b) Anything herein or in any other Loan Document to the contrary notwithstanding, the maximum liability of each Guarantor hereunder and under the other Loan Documents shall in no event exceed the amount which can be guaranteed by such Guarantor
under applicable federal, state and other laws relating to the insolvency of debtors (after giving effect to the right of contribution established in Section 2.02).
(c) Each Guarantor agrees that the Borrower Obligations may at any time and from time to time exceed the amount of the liability of such Guarantor hereunder without impairing the guarantee contained in this Section 2 or affecting the rights
and remedies of any Secured Creditor hereunder.
(d) The guarantee contained in this Section 2 shall remain in full force and effect until all the Borrower Obligations and Guarantor Obligations shall have been Fully Satisfied notwithstanding that from time to time during the term of the
Credit Agreement Borrower may be free from any Borrower Obligations.
(e) No payment made by either Borrower, any of the Guarantors, any other guarantor or any other Person or received or collected by any Secured Creditor from either Borrower, any of the Guarantors, any other guarantor or any other Person by virtue of any action or proceeding or any set-off or appropriation
or application at any time or from time to time in reduction of or in payment of the Borrower Obligations shall be deemed to modify, reduce, release or otherwise affect the liability of any Guarantor hereunder which shall, notwithstanding any such payment (other than any payment made by such Guarantor in respect of the Secured Obligations or any payment received or collected from such Guarantor in respect of the Secured Obligations), remain liable for the Borrower Obligations up to the maximum liability of such
Guarantor hereunder until the Borrower Obligations are Fully Satisfied.
Each Guarantor acknowledges and agrees that this waiver is intended to benefit the Secured Creditors and shall not limit or otherwise affect such Guarantor’s liability hereunder or the enforceability of this Section 2.03, and that the Secured Creditors and their respective
successors and assigns are intended third party beneficiaries of the waivers and agreements set forth in this Section 2.03, and their rights under this Section 2.03, shall survive payment in full of the Obligations.
similar demand on or otherwise pursue such rights and remedies as it may have against Borrower, any other Guarantor or any other Person or against any collateral security or guarantee for the Borrower Obligations or any right of offset with respect thereto, and any failure by any Secured Creditor to make any such demand, to pursue such
other rights or remedies or to collect any payments from Borrower, any other Guarantor or any other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of Borrower, any other Guarantor or any other Person or any such collateral security, guarantee or right of offset, shall not relieve any Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter
of law, of any Secured Creditor against any Guarantor. For the purposes hereof, “demand” shall include the commencement and continuance of any legal proceedings.
to such action by such Secured Creditor and waives, to the extent permitted by applicable law, any claim based upon such action, even if such action by such Secured Creditor shall result in a full or partial loss of any rights of subrogation that each Guarantor might otherwise have had but for such action by such Secured Creditor. Any
election of remedies that results in the denial or impairment of the right of any Secured Creditor to seek a deficiency judgment against any Guarantor shall not impair any other Guarantor’s obligation to pay the full amount of the Obligations. In the event any Secured Creditor shall bid at any foreclosure or trustee’s sale or at any private sale permitted by law or the Loan Documents, such Secured Creditor may bid all or less than the amount of the Obligations and the amount of such bid
need not be paid by the such Secured Creditor but shall be credited against the Obligations. The amount of the successful bid at any such public sale, whether such Secured Creditor or any other party is the successful bidder, shall be conclusively deemed to be the fair market value of the Collateral and the difference between such bid amount and the remaining balance of the Obligations shall be conclusively deemed to be the amount of the Obligations guaranteed under this Section
2, notwithstanding that any present or future law or court decision or ruling may have the effect of reducing the amount of any deficiency claim to which any Secured Creditor might otherwise be entitled but for such bidding at any such sale.
(a) the net amount of any portion of the Loan advanced to any other Grantor and then re-loaned or otherwise transferred to, or for the benefit of, such Guarantor; and
(b) the amount that could be claimed by the Agent and the Lenders from such Guarantor under this Section 2.10 without rendering such claim voidable or avoidable under Section 548 of Chapter 11 of the Bankruptcy
Code or under any applicable state Uniform Fraudulent Transfer Act, Uniform Fraudulent Conveyance Act or similar statute or common law after taking into account, among other things, such Guarantor’s right of contribution and indemnification from each other Guarantor under Section 2.11.
(a) To the extent that any Guarantor shall make a payment under this Section 2.11 of all or any of the Obligations which it has agreed to guarantee pursuant hereto (a “Guarantor
Payment”) that, taking into account all other Guarantor Payments then previously or concurrently made by any other Guarantor, exceeds the amount that such Guarantor would otherwise have paid if each Guarantor had paid the aggregate Obligations satisfied by such Guarantor Payment in the same proportion that such Guarantor’s “Allocable Amount” (as defined below) (as determined immediately prior to such Guarantor Payment)
bore to the aggregate Allocable Amounts of each of the Guarantors as determined immediately prior to the making of such Guarantor Payment, then, following indefeasible payment in full in cash of the Obligations and termination of the Commitments, such Guarantor shall be entitled to receive contribution and indemnification payments from, and be reimbursed by, each other Guarantor for the amount of such excess, pro rata based upon their respective Allocable Amounts in effect immediately prior to such Guarantor
Payment.
(b) As of any date of determination, the “Allocable Amount” of any Guarantor shall be equal to the maximum amount of the claim that could then be recovered from such Guarantor under this Section
2 without rendering such claim voidable or avoidable under Section 548 of Chapter 11 of the Bankruptcy Code or under any applicable state Uniform Fraudulent Transfer Act, Uniform Fraudulent Conveyance Act or similar statute or common law.
(c) This Section 2.11 is intended only to define the relative rights of Guarantors and nothing set forth in this Section 2.11 is intended to or
shall impair the obligations of Guarantors, jointly and severally, to pay any amounts as and when the same shall become due and payable in accordance with the terms of this Agreement, including Section 2.1. Nothing contained in this Section 2.11 shall limit the liability of Borrower to pay the Loan and accrued interest, fees and expenses with respect thereto for which Borrower
shall be primarily liable.
(d) The parties hereto acknowledge that the rights of contribution and indemnification hereunder shall constitute assets of the Guarantor to which such contribution and indemnification is owing.
(e) The rights of the indemnifying Guarantors against other Loan Parties under this Section 2.11 shall be exercisable upon the full and indefeasible payment of the Obligations and the termination of the Commitments.
Each Grantor hereby grants to the Agent, for the ratable benefit of the Secured Creditors, a security interest in and mortgage on, all of the following property now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (collectively,
the “Collateral”), as collateral security for the prompt and complete payment and performance when due (whether at the stated maturity, by acceleration or otherwise) of the Secured Obligations:
a. all accounts, including health-care receivables;
b. all chattel paper, whether tangible or electronic;
c. all goods;
d. all documents;
e. all equipment;
f. all fixtures;
g. all general intangibles, including all payment intangibles;
h. all instruments;
i. all Intellectual Property;
j. all inventory;
k. all Investment Property;
l. all Leases;
m. all letter-of-credit rights;
n. all money;
o. all supporting obligations;
p. all tort claims;
q. all other property not otherwise described above;
r. all deposit accounts, all claims now or hereafter arising therefrom, all funds now or hereafter held therein, all amounts now or hereafter credited thereto and all certificates and instruments, if any, from time to time representing or evidencing such bank accounts;
s. all books and records pertaining to the Collateral; and
t. to the extent not otherwise included, all Proceeds and products of any and all of the foregoing and all collateral security and guarantees given by any Person with respect to any of the foregoing.
Notwithstanding the foregoing, none of the Excluded Assets shall, to the extent and for so long as they are Excluded Assets, constitute Collateral. If at any time, by reason of any change in law or the receipt of any required consent or otherwise, any General Intangible that was an Excluded Asset ceases to meet the conditions
set forth in the definition of “Excluded Assets” found in Section 1 of this Agreement, then such general intangible shall immediately and automatically cease to be an Excluded Asset and the security interest herein granted shall immediately and automatically attach thereto without necessity of any further act or deed by any Grantor.
in each such representation and warranty to the applicable Borrower’s knowledge shall, for the purposes of this Section 6.04, be deemed to be a reference to such Grantor’s knowledge.
(a) none of the account debtors or other persons obligated on any of the Collateral of such Grantor is a governmental authority subject to the Federal Assignment of Claims Act or like federal, state or local statute or rule in respect of such Collateral;
(b) such Grantor holds no commercial tort claims;
(c) such Grantor has no deposit accounts or other bank accounts;
(d) such Grantor owns no motor vehicles;
(e) such Grantor has no securities accounts or securities entitlements or commodities accounts or commodities contracts;
(f) such Grantor holds no interest in, title to or power to transfer, any Patents, Patent Licenses, Trademarks, Trademark Licenses, Trade Secrets, Trade Secret Licenses, Copyrights or Copyright Licenses; and
(g) such Grantor holds no interest in, title to or power to transfer any Intellectual Property that is eligible for registration in the PTO or the Copyright Office.
the Perfection Certificate, the recording in the PTO of the Trademark Security Agreement Supplement and the Patent Security Agreement Supplement and in the Copyright Office of the Copyright Security Agreement Supplement, and the taking of all applicable actions in respect of perfection contemplated by Sections
7.06, 7.07, 7.08, 7.09, 7.10, 7.11 and 7.12 in respect of Collateral (in which a security interest cannot be perfected by the filing of a financing statement or such recordings in the PTO or the Copyright Office), the Security Interest will be valid, enforceable and perfected in all Collateral of such Grantor. The Security Interest is and shall be prior to any other Lien on the Collateral, other than Liens expressly permitted to
be prior to the Security Interest under the Credit Agreement.
(a) All information set forth on the Perfection Certificate is, and all information set forth on each Perfection Supplement shall be, accurate and complete.
(b) A fully executed Patent Security Agreement Supplement, Trademark Security Agreement Supplement and a Copyright Security Agreement Supplement containing a description of all Collateral of such Grantor consisting of United States Patents and United States registered Trademarks (and Trademarks for which
United States registration applications are pending) and United States registered Copyrights have been delivered to the Agent for recording by the PTO and the Copyright Office, as necessary, pursuant to 35 U.S.C. § 261, 15 U.S.C. § 1060 or 17 U.S.C. § 205 and the regulations thereunder, as applicable.
(a) The shares of Pledged Stock pledged by such Grantor hereunder constitute all of the issued and outstanding shares of all classes of the capital stock or other equity interests of each Issuer owned by such Grantor or, in the case of any Excluded Foreign Subsidiary Voting Stock, 65% of the outstanding
Excluded Foreign Subsidiary Voting Stock of each relevant Issuer.
(b) All the shares of the Pledged Stock pledged by such Grantor have been duly and validly issued and are fully paid and nonassessable.
(c) The terms of any uncertificated limited liability company interests and partnership interests included in the Pledged Stock expressly provide that they are securities governed by Article 8 of the Uniform Commercial Code in effect from time to time in the “issuer’s jurisdiction”
of each Issuer thereof (as such term is defined in the UCC in effect in such jurisdiction).
(d) Such Grantor is the record and beneficial owner of, and has good and marketable title to, the Pledged Securities pledged by it hereunder, free of any and all Liens or options in favor of, or claims of, any other Person, except the Security Interest created by this Agreement.
(a) If any of the Collateral shall be or become evidenced or represented by an uncertificated security, such Grantor shall cause the Issuer thereof either (i) to register the Agent as the registered owner of such uncertificated security, upon original issue or registration of transfer or (ii) to agree
in writing with such Grantor and the Agent that such Issuer will comply with instructions with respect to such uncertificated security originated by the Agent without further consent of such Grantor, such agreement to be in substantially the form of Exhibit F or such other form as the Agent shall approve.
(b) If any of the Collateral shall be or become evidenced or represented by a security entitlement, such Grantor shall cause the securities intermediary with respect to such security entitlement either (i) to identify in its records the Agent as having such security entitlement against such securities
intermediary or (ii) to agree in writing with such Grantor and the Agent that such securities intermediary will comply with entitlement orders originated by the Agent without further consent of such Grantor, such agreement to be in substantially the form of Exhibit G or such other form as the Agent shall approve.
(c) If any of the Collateral shall be or become evidenced or represented by a commodity contract, such Grantor shall cause the commodity intermediary with respect to such commodity contract to agree in writing with such Grantor and the Agent that such commodity intermediary will apply any value distributed
on account of such commodity contract as directed by the Agent without further consent of such Grantor, such agreement to be in substantially the form of Exhibit H or such other form as the Agent shall approve.
(d) If any of the Collateral shall be or become evidenced or represented by or held in a securities account or a commodity account, such Grantor shall, in the case of a securities account, comply with subsection (b) of this Section 7.08 with
respect to all security entitlements carried in such securities account and, in the case of a commodity account, comply with subsection (c) of this Section 7.08 with respect to all commodity contracts carried in such commodity account.
(e) If such Grantor shall receive any stock or other ownership certificate
(including, without limitation, any certificate representing a stock dividend or a distribution in connection with any reclassification, increase or reduction of capital or any certificate issued in connection with any reorganization), option or rights in respect of the capital stock or other equity interests of any Issuer, whether in addition to, in substitution of, as a conversion of, or in exchange for, any shares of or other ownership interests in the Pledged Stock, or otherwise in respect thereof, such Grantor
shall accept the same as the agent of the Secured Creditors, hold the same in trust for the Secured Creditors and deliver the same forthwith to the Agent in the exact form received, duly endorsed by such Grantor to the Agent, if required, together with an undated stock power covering such certificate duly executed in blank by such Grantor and with, if the Agent so requests, signature guaranteed, to be held by the Agent, subject to the terms hereof, as additional collateral security for the Secured Obligations.
(f) Subject to Section 7.08(h) hereof, such Grantor shall be entitled:
(i) to exercise, as it shall think fit, but in a manner not inconsistent with the terms hereof and of the Credit Agreement, the voting power with respect to the Pledged Stock of such Grantor, and for that purpose the Agent shall (if any Pledged Stock shall be registered
in the name of the Agent or its nominee) execute or cause to be executed from time to time, at the expense of such Grantor, such proxies or other instruments in favor of such Grantor or its nominee, in such form and for such purposes as shall be reasonably required by such Grantor and shall be specified in a written request therefor, to enable it to exercise such voting power with respect to the Pledged Stock; and
(ii) except as otherwise provided in paragraphs (g) and (h) of this Section 7.08, to receive and retain for its own account any and all payments made in respect of the Pledged Securities to the extent such
are permitted pursuant to the terms of the Credit Agreement.
(g) Any sums paid upon or in respect of the Pledged Securities upon the liquidation or dissolution of any Issuer shall be paid over to the Agent to be held by it hereunder as additional collateral security for the Secured Obligations, and in case any distribution of capital shall be made on or in respect
of the Pledged Securities or any property shall be distributed upon or with respect to the Pledged Securities pursuant to the recapitalization or reclassification of the capital of any Issuer or pursuant to the reorganization thereof, the property so distributed shall, unless otherwise subject to a perfected security interest in favor of the Agent, be delivered to the Agent to be held by it hereunder as additional collateral security for the Secured Obligations. If any sums of money or property so
paid or distributed in respect of the Pledged Securities shall be received by such Grantor, such Grantor shall, until such money or property is paid or delivered to the Agent, hold such money or property in trust for the Secured Creditors, segregated from other funds of such Grantor, as additional collateral security for the Secured Obligations.
(h) Upon the occurrence and during the continuance of any Event of Default, all rights of such Grantor to exercise or refrain from exercising the voting and other consensual rights that it would otherwise be entitled to exercise pursuant to Section 7.08(f)(i) hereof
and to receive the payments pursuant to Section 7.08(f)(ii) hereof shall cease, and thereupon the Agent shall be entitled to exercise all voting power with respect to the Pledged Securities and to receive and retain, as additional collateral hereunder, any and all such payments any time declared or paid upon any of the Pledged Securities during such an Event of Default and otherwise to act with respect to the Pledged Securities as outright
owner thereof.
(i) At any time and from time to time with respect to Pledged Securities
other than Pledged Stock either Borrower or a Subsidiary of either Borrower and at any time and from time to time during the continuance of an Event of Default with respect to Pledged Stock of a Subsidiary of either Borrower, the Agent may cause all or any of the Pledged Securities to be transferred to or registered in its name or the name of its nominee or nominees.
(j) Without the prior written consent of the Agent, such Grantor will not (i) sell, assign, transfer, exchange, or otherwise dispose of, or grant any option with respect to, any of the Investment Property or Proceeds thereof or any interest therein (except pursuant to a transaction permitted by the Credit
Agreement), (ii) create, incur or permit to exist any Lien or option in favor of, or any claim of any Person with respect to, any of the Investment Property or Proceeds thereof, or any interest therein, except for the Security Interests created by this Agreement and except for non-consensual Liens permitted by the Credit Agreement, or (iii) enter into any agreement or undertaking expressly restricting the foreclosure of the Agent’s Security Interest in any of the Investment Property or Proceeds thereof
or any interest therein.
(k) In the case of each Grantor which is an Issuer, such Issuer agrees that (i) it will be bound by the terms of this Agreement relating to the Pledged Securities issued by it and will comply with such terms insofar as such terms are applicable to it, (ii) it will notify the Agent promptly in writing
of the occurrence of any of the events described in Section 7.08(e) or Section 7.08(g) with respect to the Pledged Securities issued by it and (iii) the terms of Section 13.04(c) shall apply to it, mutatis mutandis, with respect to all actions that may be required of it with respect to the Pledged Securities
issued by it. Each Grantor which is an Issuer consents to the grant of a Security Interest in capital stock or other equity interests of such Issuer the exercise of rights by the Agent in respect of such capital stock or other equity interests, including (to the extent permitted hereunder) the foreclosure thereon and the Agent, its nominee or transferee becoming a partner or member of any such Issuer that is a partnership or limited liability company.
of the federal Electronic Signatures in Global and National Commerce Act or Section 16 of the Uniform Electronic Transactions Act, unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Grantor with respect to such electronic chattel paper or transferable record.
(a) Except in any respect that would not materially impair the right, power, authority and ability of any Grantor to use its intellectual property as necessary or convenient for the profitable conduct of their businesses and would not reasonably be expected to have a Material Adverse Effect:
(i) Such Grantor (either itself or through licensees) will (A) continue to use each material Trademark on each and every trademark class of goods in the ordinary course of business in order to maintain such Trademark in full force free from any claim of abandonment
for non-use in any class of goods for which registration was obtained, (B) maintain in the ordinary course of business the quality of products and services offered under such Trademark and take all necessary steps to ensure that all licensed users of such Trademark maintain as in the past such quality, (C) use such Trademark with the appropriate notice of registration and all other notices and legends required by applicable Requirements of Law, (D) not adopt or use any xxxx which is confusingly
similar or a colorable imitation of such Trademark unless the Agent, for the ratable benefit of the Secured Creditors, shall obtain a perfected security interest in such xxxx pursuant to this Agreement and the Intellectual Property Security Agreement, and (E) not (and not permit any licensee or sublicensee thereof to) do any act or knowingly omit to do any act whereby such Trademark may become invalidated or impaired in any way.
(ii) Such Grantor (either itself or through licensees) will not do any act, or omit to do any act, whereby any material Patent may become forfeited, abandoned or dedicated to the public.
(iii) Such Grantor (either itself or through licensees) (A) will employ each material Copyright and (B) will not (and will not permit any licensee or sublicensee
thereof to) do any act or knowingly omit to do any act whereby any material portion of the Copyrights may become invalidated or otherwise impaired. Such Grantor will not (either itself or through licensees) do any act whereby any material portion of the Copyrights may fall into the public domain.
(iv) Such Grantor (either itself or through licensees) will not do any act that knowingly uses any material Intellectual Property to infringe the intellectual property rights of any other Person.
(v) Such Grantor (either itself or through licensees) will use proper statutory notice in connection with the use of each material Patent, Trademark and Copyright included in the Intellectual Property.
(vi) Such Grantor will take all reasonable and necessary steps, including, without limitation, in any proceeding before the PTO, the Copyright Office or any similar office or agency in any other country or any political subdivision thereof, to maintain and pursue each application
(and to obtain the relevant registration) and to maintain each registration of material Intellectual Property, including, without limitation, the payment of required fees and taxes, the filing of responses to office actions issued by the PTO and the Copyright Office, the filing of applications for renewal or extension, the filing of affidavits of use and affidavits of incontestability, the filing of divisional, continuation, continuation-in-part, reissue, and renewal applications or extensions, the payment of
maintenance fees, and the participation in interference, reexamination, opposition, cancellation, infringement and misappropriation proceedings.
(vii) Such Grantor (either itself or through licensees) will not, without the prior written consent of the Agent, discontinue use of or otherwise abandon any Intellectual Property or abandon any right to file an application for letters patent, trademark, or copyright, unless
such Grantor shall have previously determined that such use or the pursuit or maintenance of such Intellectual Property is no longer desirable in the conduct of such Grantor’s business and that the loss thereof could not reasonably be expected to have a Material Adverse Effect and, in which case, such Grantor shall give prompt notice of any such abandonment to the Agent in accordance herewith.
(viii) In the event that any material Intellectual Property is infringed, misappropriated or diluted by a third party, such Grantor shall (A) take such actions as such Grantor shall reasonably deem appropriate under the circumstances to protect such Intellectual Property
and (B) if such Intellectual Property is of material economic value, promptly notify the Agent after it learns thereof and xxx for infringement, misappropriation or dilution, to seek injunctive relief where appropriate and to recover any and all damages for such infringement, misappropriation or dilution.
(ix) Such Grantor will do all things that are necessary and proper within such Grantor’s power and control to keep each license of Intellectual Property held by such Grantor as licensee or licensor in full force and effect except to the extent that (A) such Grantor
has reasonably determined that the failure to keep any such license in full force and effect could not be reasonably expected to have a Material Adverse Effect or (B) any such license would expire by its terms or is terminable at will by a Person other than Grantor.
(x) In
the event that such Grantor shall create any nonexclusive license in any Trademark, Copyright, Patent or other Intellectual Property or General Intangible, in each case owned by or licensed to such Grantor (whether pursuant to a local marketing agreement, time broadcasting agreement or otherwise) and such license is (x) for a duration of more than eighteen (18) months, (y) not terminable at the option of such Grantor and (z) not by its terms expressly subject and subordinate to the Security Interest, then, and
in any such event, such license shall constitute a Disposition of the licensed property. In the event such Grantor creates any license in Trademark, Copyright, Patent, other Intellectual Property or General Intangible owned by or licensed to such Grantor that does not meet the requirements of the immediately preceding sentence, such license shall not constitute a Disposition of such Trademark, Copyright, Patent, other Intellectual Property or General Intangible.
(xi) Such Grantor shall maintain all of its rights to its domain names in full force and effect, other than any, the loss of which could not reasonably be expected to result in a Material Adverse Effect.
(b) Such Grantor will notify the Agent immediately if it knows, or has reason to know, that any registration relating to any material Intellectual Property has been or could reasonably be expected to be forfeited, abandoned or dedicated to the public, or of any adverse determination or development (including,
without limitation, the institution of, or any such determination or development in, any proceeding in the PTO, the Copyright Office or any court or tribunal in any country) regarding such Grantor’s ownership of, or the validity of, any material Intellectual Property or such Grantor’s right to register the same or to own and maintain the same.
(c) Whenever such Grantor, either by itself or through any agent, employee, licensee or designee, shall file an application for the registration of any Intellectual Property with the PTO, the Copyright Office or any similar office or agency in any other country or any political subdivision thereof, such
Grantor shall report such filing to the Agent within five Business Days after the last day of the fiscal quarter in which such filing occurs. Upon request of the Agent, such Grantor shall execute and deliver, and have recorded, any and all agreements, instruments, documents, and papers as the Agent may request to evidence the Secured Creditors’ Security Interest in any Copyright, Patent, Trademark or other Intellectual Property and the goodwill and general intangibles of such Grantor relating
thereto or represented thereby.
(d) Such Grantor agrees that, should it obtain an ownership interest in any item of Intellectual Property which is not now a part of the Intellectual Property Collateral (the “After-Acquired Intellectual Property”), (i) the
provisions of Section 3 shall automatically apply thereto, (ii) any such After-Acquired Intellectual Property, and in the case of trademarks, the goodwill of the business connected therewith or symbolized thereby, shall automatically become part of the Collateral, (iii) it shall give prompt (and, in any event within twenty (20) days after the date of such acquisition) written notice thereof to the Agent in accordance herewith, and (iv) it shall
provide the Agent promptly (and, in any event within twenty (20) days after the date of such acquisition) with an amended Perfection Certificate and amended schedules to the applicable Intellectual Property Security Agreement reflecting the acquisition of such After-Acquired Intellectual Property. Such Grantor authorizes the Agent to modify this Agreement by amending the Perfection Certificate and to modify the schedules to the applicable Intellectual Property Security Agreement if such Grantor fails
to provide the Agent with satisfactory amended schedules hereto or thereto within the time period required hereunder (and will cooperate with the Agent in effecting any such amendment) to include any After-Acquired Intellectual Property
which becomes part of the Intellectual Property Collateral under this Section, and to record any such modified agreement with the PTO, the Copyright Office, or any other applicable Governmental Authority.
(e) Such Grantor assumes all responsibility and liability arising from the use of the Intellectual Property and hereby indemnifies and holds the Secured Creditors harmless from and against any claim, suit, loss, damage or expense (including reasonable attorneys’ fees arising out of any alleged
defect in any product manufactured, promoted or sold by such Grantor (or any affiliate or subsidiary thereof) in connection with such Intellectual Property or out of the manufacture, promotion, labeling, sale or advertisement of any such product by such Grantor (or any affiliate or subsidiary thereof), except for any claim, suit, loss, damage or expense arising solely from the gross negligence or willful misconduct of a Secured Creditor as finally determined by a court of competent jurisdiction.
(f) Such Grantor agrees to execute one or more applicable Intellectual Property Security Agreements with respect to its Intellectual Property in order to record the Security Interest granted herein to the Agent for the ratable benefit of the Secured Creditors with the PTO, the Copyright Office, and any
other applicable Governmental Authority.
the Collateral provided by such Grantor including, without limitation, (a) executing, delivering and, where appropriate, filing financing statements and amendments relating thereto under the UCC, to the extent, if any, that such Grantor’s signature thereon is required therefor; (b) causing the Agent’s name to be noted
as secured party on any certificate of title for a titled good if such notation is a condition to attachment, perfection or priority of, or ability of the Agent to enforce, the Security Interest in such Collateral; (c) complying with any provision of any statute, regulation or treaty of the United States of America as to any Collateral if compliance with such provision is a condition to the attachment, perfection or priority of, or the ability of the Agent to enforce, the Security Interest in such Collateral;
(d) obtaining governmental and other third party consents and approvals, including without limitation any consent of any licensor, lessor or other person obligated on such Collateral; (e) obtaining waivers from mortgagees, bailees, landlords and any other person who has possession of or any interest in any Collateral or any real property on which any such Collateral may be located, in form and substance satisfactory to the Agent; (f) providing to the Agent “control” over such Collateral,
to the extent that perfection can only be achieved under the UCC by control or where obtaining perfection by control provides more protection to the Secured Creditors that perfection by filing a financing statement; and (g) taking all actions required by the UCC or by other law, as applicable in any relevant UCC jurisdiction, or by other law as applicable in any foreign jurisdiction; provided, however,
that nothing contained in paragraphs (d) or (e) shall require such Grantor to pay any consideration (other than any governmental application, processing, filing or recording fees) in order to obtain any consent or waiver referred to in such paragraphs.
(a) Anything herein to the contrary notwithstanding, each Grantor shall remain liable under each contract or agreement comprised in the Collateral provided by it to be observed or performed by such Grantor thereunder. Neither the Agent nor any other Secured Creditor shall have any obligation
or liability under any such contract or agreement by reason of or arising out of this Agreement or the receipt by the Agent or any other Secured Creditor of any payment relating to any of the Collateral, nor shall the Agent or any other Secured Creditor be obligated in any manner to perform any of the obligations of any Grantor under or pursuant to any such contract or agreement, to make inquiry as to the nature or sufficiency of any payment received by the Agent or any other Secured Creditor in respect of the
Collateral or as to the sufficiency of any performance by any party under any such contract or agreement, to present or file any claim, to take any action to enforce any performance or to collect the payment of any amounts which may have been assigned to the Agent or any other Secured Creditor or to which the Agent or any other Secured Creditor may be entitled at any time or times.
(b) The Agent’s sole duty with respect to the custody, safe keeping and physical preservation of the Collateral in its possession, under Section 9-207 of the NYUCC or otherwise, shall be to deal with such Collateral in the same manner as the Agent deals with similar property for its own account.
(c) Neither the Agent, nor any other Secured Creditor nor any of their respective officers, directors, partners, employees, agents, attorneys and other advisors, attorneys-in-fact or affiliates shall be liable for failure to demand, collect or realize upon any of the Collateral or for any delay in doing
so or shall be under any obligation to sell or otherwise dispose of any Collateral upon the request of any Grantor or any other Person or to take any other action whatsoever with regard to the Collateral or any part thereof. The powers conferred on the Secured Creditors hereunder are solely to protect the Secured Creditors’ interests in the Collateral and shall not impose any duty upon any Secured Creditor to exercise any such powers. The Secured Creditors shall be accountable only
for amounts that they actually receive as a result of the exercise of such powers, and neither they nor any of their officers, directors, partners, employees, agents, attorneys and other advisors, attorneys-in-fact or affiliates shall be responsible to any Grantor for any act or failure to act hereunder, except to the extent that any such act or failure to act is found by a final and nonappealable decision of a court of competent jurisdiction to have resulted from their respective gross negligence or willful
misconduct.
(d) Each Grantor acknowledges that the rights and responsibilities of the Agent under this Agreement with respect to any action taken by the Agent or the exercise or non-exercise by the Agent of any option, voting right, request, judgment or other right or remedy provided for herein or resulting or arising
out of this Agreement shall, as between the Agent and the other Secured Creditors, be governed by the Credit Agreement and by such other agreements with respect thereto as may exist from time to time among them, but, as between the Agent and the Grantors, the Agent shall be conclusively presumed to be acting as agent for the Secured Creditors with full and valid authority so to act or refrain from acting, and no Grantor shall be under any obligation, or entitlement, to make any inquiry respecting such authority.
(a) With respect to any calls, conversions, exchanges, redemptions, offers, tenders or similar matters relating to any such Pledged Securities (herein called “Events”),
any duty in connection therewith imposed on the Agent by applicable law shall be fully satisfied if:
(i) the Agent exercises reasonable care to ascertain the occurrence and to give reasonable notice to the applicable Grantor of any Events applicable to any Pledged Securities that are registered and held in the name of Agent or its nominee;
(ii) the Agent gives the applicable Grantor reasonable notice of the occurrence of any Events of which the Agent has received actual knowledge, which Events are applicable to any securities that are in bearer form or are not registered and held in the name of the Agent or
its nominee (each Grantor agreeing to give the Agent reasonable notice of the occurrence of any Events of which such Grantor has knowledge, which Events are applicable to any securities in the possession of the Agent); and
(iii) the Agent endeavors to take such action with respect to any of the Events as the applicable Grantor may reasonably and specifically request in writing in sufficient time for such action to be evaluated and taken or, if the Agent reasonably believes that the action
requested would adversely affect the value of the Pledged Securities as collateral or the collection of the Secured Obligations, or would otherwise prejudice the interests of any Secured Creditor, the Agent gives reasonable notice to such Grantor that any such requested action will not be taken and, if the Agent makes such determination or if such Grantor fails to make such timely request, the Agent takes such other action as it reasonably deems advisable in the circumstances.
(b) Except as hereinabove specifically set forth, neither the Agent nor any other Secured Creditor shall have any further obligation to ascertain the occurrence of, or to notify any Grantor with respect to, any Events and shall not be deemed to assume any such further obligation as a result of the establishment
by the Agent or any other Secured Creditor of any internal procedures with respect to any securities in its possession, nor shall the Agent or any other Secured Creditor be deemed to assume any other responsibility for, or obligation or duty with respect to, any Pledged Securities or its use of any nature or kind, or any matter or proceedings arising out of or relating thereto, including, without limitation, any obligation or duty to take any action to collect, preserve or protect its or any Grantor’s rights
in the Pledged Securities or against any prior parties thereto, but the same shall be at such Grantor’s sole risk and responsibility at all times.
(c) Nothing contained in this Section 9.03 shall be deemed to create any obligation in respect of Events on the Agent, the purpose of this Section 9.03 being solely
to provide standards, in the event that applicable law imposes any obligations on the Agent as to Events.
Agent or any other Secured Creditor to any Grantor may at any time be applied to or set off against any of the Secured Obligations whether or not due and owing.
(a) in the name of such Grantor or its own name, or otherwise, take possession of and endorse and collect any checks, drafts, notes, acceptances or other instruments for the payment of moneys due under any Receivable or with respect to any other Collateral and file any claim
or take any other action or proceeding in any court of law or equity or otherwise
deemed appropriate by the Agent for the purpose of collecting any and all such moneys due under any Receivable or with respect to any other Collateral whenever payable;
(b) in the case of any Intellectual Property, execute and deliver, and have recorded, any and all agreements, instruments, documents and papers as the Agent may request to evidence the Security Interest in such Intellectual Property and the goodwill and general intangibles of such Grantor relating thereto
or represented thereby;
(c) pay or discharge taxes and Liens levied or placed on or threatened against the Collateral, effect any repairs or provide any insurance and pay all or any part of the premiums therefor and the costs thereof;
(d) execute, in connection with any sale provided for in Section 13, any endorsements, assignments or other instruments of conveyance or transfer with respect to the Collateral;
(e) exercise all rights of such Grantor as owner of the Pledged Securities or as party to any partnership, limited liability company or similar agreement, including, without limitation, the right to sign any and all amendments, instruments, certificates, proxies, and other writings and exercise all voting
and consent rights with respect to the Pledged Securities;
(f) (1) direct any party liable for any payment under any of the Collateral to make payment of any and all moneys due or to become due thereunder directly to the Agent or as the Agent shall direct; (2) ask or demand for, collect, and receive payment of and receipt for, any and all moneys, claims and
other amounts due or to become due at any time in respect of or arising out of any Collateral; (3) sign and endorse any invoices, freight or express bills, bills of lading, storage or warehouse receipts, drafts against debtors, assignments, verifications, notices and other documents in connection with any of the Collateral; (4) commence and prosecute any suits, actions or proceedings at law or in equity in any court of competent jurisdiction to collect the Collateral or any portion thereof and to enforce any
other right in respect of any Collateral; (5) defend any suit, action or proceeding brought against such Grantor with respect to any Collateral; (6) settle, compromise or adjust any such suit, action or proceeding and, in connection therewith, give such discharges or releases as the Agent may deem appropriate; (7) assign any Copyright, Patent or Trademark (along with the goodwill of the business to which any such Copyright, Patent or Trademark pertains) throughout the world for such term or terms, on such conditions,
and in such manner, as the Agent shall in its sole discretion determine; and (8) generally, sell, transfer, pledge and make any agreement with respect to or otherwise deal with any of the Collateral as fully and completely as though the Agent were the absolute owner thereof for all purposes, and do, at the Agent’s option and such Grantor’s expense, at any time, or from time to time, all acts and things which the Agent deems necessary to protect, preserve or realize upon the Collateral and the Security
Interest therein and to effect the intent of this Agreement, all as fully and effectively as such Grantor might do; and
(g) to the extent that such Grantor’s authorization given in Section 4 is not sufficient, to file such financing statements or similar documents under the laws of any jurisdiction with respect hereto,
with or without such Grantor’s signature, or a photocopy of this Agreement in substitution for a financing statement or such other document, as the Agent may deem appropriate and to execute in such Grantor’s name such financing statements, other such documents and amendments thereto and continuation statements which may require such Grantor’s signature.
Anything in this Section 12.01 to the contrary notwithstanding, the Agent agrees that it will not exercise any rights under the power of attorney provided for in this Section 12.01 (other than under paragraph
(g) of this Section 12.01) unless an Event of Default shall have occurred and be continuing.
FIRST: to the payment of all reasonable costs and expenses of such sale, collection or other realization, including reasonable compensation to the Agent and its agents and counsel, and all other reasonable expenses, liabilities and advances made or incurred by the Agent in connection therewith, and all amounts for which the
Agent is entitled to indemnification hereunder and all reasonable advances made by the Agent hereunder for the account of any Grantor, and to the payment of all reasonable costs and expenses paid or incurred by the Agent in connection with the exercise of any right or remedy hereunder, all in accordance with Section 19.09;
SECOND: to the payment of all other Secured Obligations (for the ratable benefit of the holders thereof) then due and payable in the manner and order provided in the Credit Agreement;
THIRD: to any payments required by Sections 9-608(a)(1)(C) or 9-615(a)(3) of the NYUCC; and
FOURTH, to the payment to or upon the order of the Grantor entitled thereto, or to whomsoever may be lawfully entitled to receive the same or as a court of competent jurisdiction may direct, of any surplus then remaining from such proceeds.
Person or property. All such rights and remedies shall be cumulative, and no one of them shall exclude or preclude any other.
prior parties or to protect, preserve, vote or exercise any rights pertaining to any Collateral. The Agent shall be deemed to have exercised reasonable care in the custody and preservation of Collateral in its possession if such Collateral is accorded treatment substantially equal to that which the Agent accords its own property
or if it selects, with reasonable care, a custodian to hold such Collateral on its behalf.
(a) The Grantors, jointly and severally, agree to pay upon demand the amount of any and all reasonable expenses, including the fees, disbursements and other charges of counsel and of any experts or agents, which (i) any Secured Creditor may incur in connection with (x) collecting against any Grantor
under the guarantee contained in Section 2 or otherwise enforcing or preserving any rights under this Agreement and the other Loan Documents, (y) the exercise, enforcement or protection of any of the rights of such Secured Creditor hereunder or (z) the failure of any Grantor to perform or observe any of the provisions hereof, and (ii) the Agent may incur in connection with (x) the administration of this Agreement (including the customary fees and
charges of such Secured Creditor for any audits conducted by it or on its behalf with respect to the accounts receivable or inventory) or (y) the custody or preservation of, or the sale of, collection from or other realization upon any of the Collateral.
(b) Each Grantor agrees to pay, and to save the Secured Creditors harmless from, any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever with respect to the execution, delivery, enforcement, performance
and administration of this Agreement to the extent the Borrower would be required to do so pursuant to Section 10.5 of the Credit Agreement.
(c) The agreements in this Section shall survive repayment of the Obligations
and all other amounts payable under the Credit Agreement and the other Loan Documents.
(d) Each Grantor agrees that the provisions of Section 3.1 of the Credit Agreement are hereby incorporated herein by reference, mutatis mutandis, and each Secured Creditor shall be entitled to rely on each of them as if they were fully
set forth herein.
(a) No failure or delay of the Agent in exercising any power or right hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise
thereof or the exercise of any other right or power. The rights and remedies of the Secured Creditors hereunder and of the Secured Creditors under the Credit Agreement and other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provisions of this Agreement or consent to any departure by any Grantor therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) below, and then such
waiver or consent shall be effective only in the specific instance and for the purpose for which given. No notice to or demand on any Grantor in any case shall entitle such or any other Grantor to any other or further notice or demand in similar or other circumstances.
(b) Neither this Agreement nor any provision hereof may be waived, amended or modified except pursuant to an agreement or agreements in writing entered into by the Agent and each affected Grantor; provided, that any provision of this Agreement
imposing obligations on any Grantor may be waived by the Agent in a written instrument executed by the Agent in accordance with Section 10.1 of the Credit Agreement.
liabilities and claims may be contingent or unmatured. Each Secured Creditor shall notify such Grantor promptly of any such set-off and the application made by such Secured Creditor of the proceeds thereof, provided that the failure to give such notice shall not affect the validity of such set-off and application. The
rights of each Secured Creditor under this Section are in addition to other rights and remedies (including, without limitation, other rights of set-off) which such Secured Creditor may have.
(a) it has been advised by counsel in the negotiation, execution and delivery of this Agreement and the other Loan Documents to which it is a party;
(b) no Secured Creditor has any fiduciary relationship with or duty to any Grantor arising out of or in connection with this Agreement or any of the other Loan Documents, and the relationship between the Grantors, on the one hand, and the Secured Creditors, on the other hand, in connection herewith or
therewith is solely that of debtor and creditor; and
(c) no joint venture is created hereby or by the other Loan Documents or otherwise exists by virtue of the transactions contemplated hereby among the Secured Creditors or among the Grantors and the Secured Creditors.
(a) Notwithstanding anything to the contrary contained in the Credit Agreement, herein or in any other Loan Document, upon request of Borrower in connection with any Disposition of Property permitted by the Loan Documents, the Agent shall (without notice to or vote or consent of any other Secured Creditor)
take such actions as shall be required to release the Security Interest in any Collateral being Disposed of in such Disposition, to the extent necessary to permit consummation of such Disposition in accordance with the Loan Documents, provided that the Borrower shall have delivered to the Agent, at least five (5) Business Days prior to the date of the proposed release, a written request for release identifying the relevant Collateral being Disposed of in such Disposition and the terms of such Disposition in reasonable
detail, including the date thereof, the price thereof and any estimated expenses in connection therewith, together with a certification by Borrower stating that such transaction is in compliance with the Credit Agreement and the other Loan Documents and that the proceeds of such Disposition will be applied in accordance with the Credit Agreement and the other Loan Documents.
(b) At the request and sole expense of Borrower, a Subsidiary Guarantor
shall be released from its obligations hereunder in the event that all the capital stock or other equity interests of such Subsidiary Guarantor shall be Disposed of in a transaction permitted by the applicable Credit Agreement; provided that such Borrower shall have delivered to the Agent, at least five (5) Business Days prior to the date of the proposed release, a written request for release identifying the relevant Subsidiary Guarantor and the terms of the Disposition in reasonable detail, including the price
thereof and any expenses in connection therewith, together with a certification by Borrower stating that such transaction is in compliance with the Credit Agreement and the other Loan Documents and that the Proceeds of such Disposition will be applied in accordance therewith.
(a) Each Grantor hereby agrees that any intercompany Debt or other intercompany payables or receivables directly or indirectly made by or owed to such Grantor by any other Grantor (collectively, “Intercompany Debt”), of whatever
nature at any time outstanding shall be subordinate and subject in right of payment to the prior payment in full in cash of the Borrower Obligations. Each Grantor hereby agrees that following a single written notice to Borrower, such Grantor will not, while any Event of Default is continuing, accept any payment, including by offset, on any Intercompany Debt until all Secured Obligations have been paid in full and the Commitments have been terminated, in each case, except with the prior written consent
of the Agent.
(b) In the event that any payment on any Intercompany Debt shall be received by a Grantor other than as permitted by this Section 19.17 before all Secured Obligations have been paid in full, the Commitments have been terminated pursuant
to the Credit Agreement, such Grantor shall receive such payments and hold the same in trust for, segregate the same from its own assets and shall immediately pay over to, the Agent for the benefit of the Agent and Lenders all such sums to the extent necessary so that the Agent and the Lenders shall have been paid in full, in cash, all Borrower Obligations owed or which may become owing.
(c) Upon any payment or distribution of any assets of any Grantor of any kind or character, whether in cash, property or securities by set-off, recoupment or otherwise, to creditors in any liquidation or other winding-up of such Grantor or in the event of any case, proceeding or other action described
in Section 8.1.3 of the Credit Agreement, the Agent and Lenders shall first be entitled to receive payment in full in cash, in accordance with the terms of the Borrower Obligations and of this Agreement, of all amounts payable under or in respect of such Borrower Obligations, before any payment or distribution is made on, or in respect of, any Intercompany Debt, in any such case, proceeding or other action, any distribution or payment, to which
the Agent or any Lender would be entitled except for the provisions hereof shall be paid by such Grantor, or by any receiver, trustee in bankruptcy, liquidating trustee, agent or other person making such payment or distribution directly to the Agent (for the benefit of the Agent and the Lenders) to the extent necessary to pay all such Borrower Obligations in full in cash, after giving effect to any concurrent payment or distribution to the Agent and Lenders (or to the Agent for the benefit of the Agent and Lenders).
[Remainder of Page Intentionally Left Blank; Signature Pages Follow]
IN WITNESS WHEREOF, each of the undersigned has caused this Amended and Restated Guarantee and Collateral Agreement to be duly executed and delivered as of the date first above written.
GRANTORS:
APPLIED NATURAL GAS FUELS, INC. ARIZONA
LNG, L.L.C.
By: New Earth LNG, LLC,
By: /s/ Cem Hacioglu its
sole member
Name: Cem Hacioglu
Title: President, CEO
By: /s/ Cem Hacioglu
Name: Cem Hacioglu
NEW EARTH LNG, LLC Title: President,
CEO
By: /s/ Cem Hacioglu
Name: Cem Hacioglu
Title: President, CEO
APPLIED LNG TECHNOLOGIES USA, L.L.C.
By: New Earth LNG, LLC, its sole member
By: /s/ Cem Hacioglu
Name: Cem Hacioglu
Title: President, CEO
FLEET STAR, INC.
By: /s/ Cem Hacioglu
Name: Cem Hacioglu
Title: President, CEO
EARTH LEASING, INC.
By: /s/ Cem Hacioglu
Name: Cem Hacioglu
Title: President, CEO
Accepted: as to Sections 9.02 and 9.03
FOURTH THIRD LLC,
as Agent
By: /s/ Xxxx X. Xxxxx |
|
Name: Xxxx X. Xxxxx
Title: Authorized Signatory