INTERCREDITOR AGREEMENT
INTERCREDITOR AGREEMENT (as
amended, modified or supplemented from time to time, this “Agreement”) dated as of June
___, 2008, by and among the Revolving Lender and Black Forest International, LLC
(together with its successors and assigns, “BFI”), New Earth LNG, LLC, a
Delaware limited liability company (the “Company”), and certain other
Persons listed below on the signature pages as “Obligors.”
RECITALS:
“Agreement” has the meaning set
forth in the preamble hereof.
“Bankruptcy Code” means the
provisions of Title 11 of the United States Code, 11 U.S.C. §§101 et
seq.
“Bankruptcy Law” means the
Bankruptcy Code and any other federal, state or foreign bankruptcy, insolvency,
receivership or similar law.
“Borrower” has the meaning set
forth in the preamble hereto.
“Business Day” means any day of
the year that is not a Saturday, a Sunday or a day on which banks are required
or authorized to close in New York City.
“Collateral” means all assets
and properties of any kind whatsoever, real or personal, tangible or intangible
and wherever located, of any Obligor, whether now owned or hereafter acquired,
upon which a Lien (including, without limitation, any Liens granted in any
Insolvency Proceeding) is now or hereafter granted or purported to be granted by
such Person in favor of a Secured Creditor, as security for all or any part of
the Obligations.
“Company” has the meaning set
forth in the preamble hereto.
“Debt Action” means (a) the
filing of a lawsuit by either Secured Creditor solely to collect the Obligations
owed to such Secured Creditor and not to exercise secured creditor remedies in
respect of the Collateral, (b) the demand by either Secured Creditor for
accelerated payment of any and all of the Obligations owed to such Secured
Creditor, (c) the filing of any notice of claim
and the voting of any such claim in any Insolvency Proceeding involving an
Obligor, (d) the filing of any motion in any Insolvency Proceeding permitted
under Section 5
or (e) the filing of any defensive pleading in any Insolvency Proceeding
consistent with the terms of this Agreement.
“Designated Permitted
Disposition” has the meaning set forth in Section
2.10(a).
“Disposition” means any sale,
lease, exchange, transfer or other disposition, and “Dispose” and “Disposed of” shall have
correlative meanings.
“Distribution” means, with
respect to any indebtedness or obligation, (a) any payment or distribution by
any Person of cash, securities or other property, by setoff or otherwise, on
account of such indebtedness or obligation or (b) any redemption, purchase or
other acquisition of such indebtedness or obligation by any Person.
“Documents” means the Revolving
Credit Documents and the Term Loan Documents, or any of them.
“Enforcement Action” means
(a) any action by either Secured Creditor to foreclose on the Lien of such
Person in any Collateral, (b) any action by either Secured Creditor to take
possession of, or sell or otherwise realize upon, or to exercise any other
rights or remedies with respect to, any Collateral, including any Disposition
after the occurrence of an Event of Default of any Collateral by an Obligor with
the consent of, or at the direction of, a Secured Creditor, (c) the taking of
any other actions by a Secured Creditor against any Collateral, including the
taking of control or possession of, or the exercise of any right of setoff with
respect to, any Collateral and including the exercise of any voting rights
relating to any capital stock composing a portion of the Collateral and/or
(d) the commencement by either Secured Creditor of any legal proceedings or
actions against or with respect to an Obligor or any of such Obligor’s property
or assets or any Collateral to facilitate any of the actions described in
clauses (a),
(b) and
(c) above, including the commencement of any Insolvency Proceeding; provided that this
definition shall not include any Debt Action.
“Event of Default” means each
“Event of Default” or similar term, as such term is defined in any Term Loan
Document or any Revolving Credit Document.
“Excess Revolving Obligations”
means the sum of (a) the portion of the principal amount of the loans
outstanding under the Revolving Loan Documents and the undrawn amount of all
outstanding Letters of Credit and the unreimbursed amount of all Letters of
Credit that is in excess of the Maximum Revolving Credit Principal Amount plus
(b) without duplication, the portion of interest and fees on account of such
portion of the loans and Letters of Credit described in clause (a) of this
definition; provided, however, that any
interest, fees, or reimbursement obligations in respect of expenses that accrue,
or are incurred, after the date when Revolving Lender or BFI, as applicable,
commences Enforcement Action with respect to all or any material portion of the
Collateral shall not constitute Excess Revolving Obligations, regardless of
whether any such amounts are added to the principal balance of the loans
pursuant to the terms of the Revolving Loan Documents.
“Final Order” means an order of
the Bankruptcy Court or any other court of competent jurisdiction as to which
the time to appeal, petition for certiorari, or move for
reargument or rehearing has expired and as to which no appeal, petition for
certiorari, or other
proceedings for reargument or rehearing shall then be pending, or, in the event
that an appeal, writ of certiorari, or reargument or rehearing thereof has been
filed or sought, such order of the Bankruptcy Court or other court of competent
jurisdiction shall have been affirmed by the highest court to which such order
was appealed, or from which certiorari, reargument or rehearing was sought, and
the time to take any further appeal, petition for certiorari or move for
reargument or rehearing shall have expired; provided that the possibility
that a motion under Rule 59 or Rule 60 of the Federal Rules of Civil Procedure
or any analogous rule under the Federal Rules of Bankruptcy Procedure or
applicable state court rules of civil procedure, may be filed with respect to
such order shall not cause such order not to be a Final Order.
“Initial Revolving Credit
Agreement” shall have the meaning set forth in the recitals
hereto.
“Insolvency Proceeding” means,
as to any Obligor, any of the following: (a) any case or
proceeding with respect to such Person under the Bankruptcy Code or any other
federal or state bankruptcy, insolvency, reorganization or other law affecting
creditors’ rights or any other or similar proceedings seeking any stay,
reorganization, arrangement, composition or readjustment of the obligations and
indebtedness of such Obligor, (b) any proceeding seeking the appointment of
any trustee, receiver, liquidator, custodian or other insolvency official with
similar powers with respect to such Obligor or any of its assets, (c) any
proceeding for liquidation, dissolution or other winding up of the business of
such Obligor or (d) any assignment for the benefit of creditors or any
marshalling of assets of such Obligor.
“Junior Adequate Protection
Liens” shall have the meaning set forth in Section
6.2.
“Junior Lien Default Notice”
means a notice by BFI to the Revolving Lender indicating that an Event of
Default under the Term Loan Documents has occurred and that BFI intends to take
Enforcement Action against Revolving Credit Priority Collateral.
“Junior Lien Disposition Notice” shall have
the meaning set forth in Section
2.10(a).
“Junior Obligations” means, as
to the Term Loan Priority Collateral, the Revolving Credit Obligations, and as
to the Revolving Credit Priority Collateral, the Term Loan
Obligations.
“Junior Secured Creditor”
means, as to the Term Loan Priority Collateral, the Revolving Lender (it being
understood that the Revolving Lender has and will acquire no Lien on the Term
Loan Priority Collateral), and as to the Revolving Credit Priority Collateral,
BFI.
“Letters of Credit” means the
“Letters of Credit,” as that term is defined in the Revolving Credit Agreement
in effect on the date hereof.
“Lien” means any mortgage, deed
of trust, pledge, hypothecation, assignment, charge, deposit arrangement,
encumbrance, easement, lien (statutory or otherwise), security interest or other
security arrangement and any other preference, priority or preferential
arrangement of any kind or nature whatsoever, including any conditional sale
contract or other title retention arrangement, the interest of a lessor under a
capital lease and any synthetic or other financing lease having substantially
the same economic effect as any of the foregoing.
“Lock-Box Account” means
deposit account number #1852 316395 established at Comerica Bank for receipt of
collections of receivables pursuant to lock box arrangement among the Revolving
Lender and the Revolving Borrowers.
“Maximum Revolving Credit Principal
Amount” means, as of any date of determination, (a) $2,500,000 minus
(b) permanent reductions of revolving loan commitments under the Revolving
Credit Documents after the date hereof plus
(c) interest, fees, costs, expenses, indemnities and other amounts payable
pursuant to the terms of the Revolving Credit Documents, whether or not the same
are added to the principal amount of the Revolving Credit Obligations and
including the same as would accrue and become due but for the commencement of an
Insolvency Proceeding, whether or not such amounts are allowed or allowable in
whole or in part in any such Insolvency Proceeding.
“Non-Priority Collateral”
means, as to BFI, the Revolving Credit Priority Collateral, and, as to the
Revolving Lender, the Term Loan Priority Collateral (it being understood that
the Revolving Lender has and will acquire no Lien on Term Loan Priority
Collateral).
“Obligations” means the Term
Loan Obligations and the Revolving Credit Obligations, or any of
them.
“Obligor” means the Company and
each other Person liable on or in respect of any Obligations or that has granted
a Lien on any property or assets as Collateral, together with such Person’s
successors and assigns, including a receiver, trustee or debtor-in-possession on
behalf of such Person.
“Paid in
Full” or “Payment in
Full” means, with respect to any Obligations, that: (a) all of such Obligations (other than contingent
indemnification obligations for which no underlying claim has been asserted)
have been indefeasibly paid, performed or discharged in full (with all such Obligations consisting of monetary or payment obligations
having been paid in full in cash), (b) no Person has any further
right to obtain any loans, letters of credit, bankers’ acceptances, or other
extensions of credit under the documents relating to such Obligations and (c) any and all letters of credit, bankers’ acceptances or similar
instruments issued under such documents have been
cancelled and returned (or backed by stand-by guarantees or cash collateralized)
in accordance with the terms of such documents.
“Parent” means PNG Ventures,
Inc., a Nevada corporation.
“Payment Rights” means any
right of any Obligor to the payment of money arising from the Disposition of any
Inventory or rendition of services, whether such right to payment constitutes an
Account or Payment Intangible or is evidenced by or consists of a Document,
Instrument, Chattel Paper, Letter-of-Credit Right or Supporting
Obligation.
“Permitted Collateral Sale”
means any Disposition of Priority Collateral so long as such Disposition is
permitted under the Priority Documents as in effect on the date
hereof.
“Permitted Junior Lien
Disposition” shall mean a Disposition of any Revolving Credit Priority
Collateral (other than collection of an obligation) in connection with an
Enforcement Action by BFI after the expiration of the Standstill Period and
subject to the terms of Section 3.1 of this
Agreement which Disposition is commercially reasonable in all respects and
undertaken on an arm’s length basis with parties which are not Affiliates of
BFI.
“Person” means an individual,
partnership, corporation (including a business trust and a public benefit
corporation), joint stock company, estate, association, firm, enterprise, trust,
limited liability company, unincorporated association, joint venture,
governmental authority or any other entity or regulatory body.
“Priority Claim Avoidance”
shall have the meaning set forth in Section
6.4.
“Priority Collateral” means, as
to BFI, the Term Loan Priority Collateral (it being understood that the
Revolving Lender has and will acquire no Lien on Term Loan Priority Collateral),
and as to the Revolving Lender, the Revolving Credit Priority
Collateral.
“Priority Documents” means, as
to the Revolving Credit Priority Collateral, the Revolving Credit Documents and
as to the Term Loan Priority Collateral, the Term Loan Documents.
“Priority Obligations” means,
as to the Term Loan Priority Collateral, the Term Loan Obligations and as to the
Revolving Credit Priority Collateral, the Revolving Credit
Obligations.
“Priority Secured Creditor”
means, as to the Term Loan Priority Collateral, BFI (it being understood that
the Revolving Lender has and will acquire no Lien on Term Loan Priority
Collateral), and as to the Revolving Credit Priority Collateral, the Revolving
Lender.
“Purchase Notice” shall have
the meaning set forth in Section
5.1.
“Refinance”, “Refinancings” and “Refinanced” means, in respect
of any Obligations, to issue other indebtedness in exchange or replacement for
such Obligations, in whole or in part.
“Release Documents” shall have
the meaning set forth in Section
2.5.
“Release Event” means the
taking of any Enforcement Action by a Secured Creditor against all or any
portion of Collateral that is Priority Collateral as to such Secured Creditor
(including a Disposition conducted by an Obligor with the consent of such
Secured Creditor) or, after the occurrence and during the continuance of an
Insolvency Proceeding by or against an Obligor, the entry of an order of the
Bankruptcy Court pursuant to Section 363 of the Bankruptcy Code authorizing
the sale of all or any portion of such Collateral with the support of such
Secured Creditor.
“Revolver Purchase Option Closing
Date” shall have the meaning set forth in Section
5.2.
“Revolving Borrower” shall have
the meaning set forth in the recitals hereto.
“Revolving Credit Agreement”
means (a) the Initial Revolving Credit Agreement and (b) each loan or credit
agreement evidencing any replacement, substitution, renewal, or Refinancing of
the Obligations under the Revolving Credit Agreement, in each case as amended,
restated, supplemented, replaced, substituted or Refinanced in accordance with
the terms of this Agreement.
“Revolving Credit Documents”
means the Revolving Credit Agreement, and all other agreements, documents and
instruments at any time executed and/or delivered by the Revolving Obligors or
any other Person with, to or in favor of the Revolving Lender in connection
therewith or related thereto, including such documents evidencing successive
Refinancings of the Revolving Credit Obligations in each case, as amended,
amended and restated, supplemented, modified, replaced, substituted or renewed
from time to time in accordance with the terms of this Agreement.
“Revolving Credit Obligations”
means all obligations, obligations to post cash collateral in respect of Letters
of Credit or indemnities in respect thereof, liabilities and indebtedness of
every kind, nature and description owing by the Revolving Borrowers to the
Revolving Lender evidenced by or arising under one or more of the Revolving
Credit Documents (including the Revolving Loans), whether direct or indirect,
absolute or contingent, joint or several, due or not due, primary or secondary,
liquidated or unliquidated, including principal, interest, charges, fees, costs,
indemnities and reasonable expenses, however evidenced, whether as principal,
surety, endorser, guarantor or otherwise, whether now existing or hereafter
arising, whether arising before, during or after the initial or any renewal term
of the Revolving Credit Agreement and whether arising before, during or after
the commencement of any Insolvency Proceeding with respect to any Revolving
Obligor (and including the payment of interest which would accrue and become due
but for the commencement of such Insolvency Proceeding, whether or not such
interest is allowed or allowable in whole or in part in any such Insolvency
Proceeding), exclusive of the Excess Revolving Obligations, which Excess
Revolving Obligations shall be excluded from (and shall not constitute)
Revolving Credit Obligations.
“Revolving Credit Priority
Collateral” means all right, title and interest of the Revolving
Borrowers in and to the following types of property, whether now owned or
hereafter created, acquired or arising and wherever located: (i) all Payment
Rights; (ii) all Inventory; (iii) all Documents relating to or evidencing any
Inventory; (iv)
all rights, remedies, security and liens, in, to and in respect of the types of
property referred to in clauses (i), (ii) or (iii) above, including rights of
stoppage in transit, replevin, repossession and reclamation and other rights and
remedies of an unpaid vendor, lien or secured party, guaranties or other
contracts of suretyship with respect to the Accounts and Inventory, deposits or
other security for the obligation of any account debtor obligated on or in
connection with any Account, and credit and other insurance relating to any
Account; (v) all items of Inventory relating to, or which by sale have resulted
in, Payment Rights, including all items of Inventory described in invoices or
other documents or instruments with respect to, or otherwise representing or
evidencing, any Payment Rights, and all returned, reclaimed or repossessed items
of Inventory pertaining to any Payment Right; (vi) all amounts on deposit in the
Lock-Box Account, except to the extent that any such amounts have been
identified as proceeds of Term Loan Priority Collateral; (vii) all amounts on
deposit in any Term Loan Priority Account, in each case, to the extent that any
such amounts have been identified as proceeds of Revolving Credit Priority
Collateral; (viii) all contracts and agreements for the sale of Inventory;
(ix) all books, records, ledger cards, computer programs, software and
other property at any time evidencing or relating to any or all of the
foregoing; and (x) subject to the limitations set forth in clauses (vi) and
(vii) of this
definition, all proceeds of any of the items described in clauses (i) through
(ix) above, in
any form (including any insurance proceeds or claims by any Revolving Borrower
against third parties, for loss or damage to or destruction of any or all of the
foregoing). Notwithstanding the foregoing, in no event shall property
that is otherwise Revolving Credit Priority Collateral constitute Term Loan
Priority Collateral
due to
the fact that it was acquired by a Revolving Obligor with the cash proceeds of
Term Loan Priority Collateral, and no proceeds of an advance under the Revolving
Credit Agreement shall constitute Term Credit Priority
Collateral. For purposes of this definition, returned items of
Inventory in connection with any sale thereof shall continue to constitute
Revolving Credit Priority Collateral, whether or not such items are being held
for sale.
“Revolving Credit Secured
Claim” means any portion of the Revolving Credit
Obligations.
“Revolving Credit Termination
Date” means the date on which all Revolving Credit Obligations have been
Paid in Full.
“Revolving Lender” has the
meaning set forth in the recitals hereto.
“Revolving Loans” means the
loans or advances made or outstanding under the Revolving Credit
Documents.
“Revolving Obligor” means each
Revolving Borrower, Parent and the Company.
“Secured Claim” means a Term
Loan Secured Claim or a Revolving Credit Secured Claim.
“Secured Creditors” means BFI
and the Revolving Lender, or either of them.
“Senior Adequate Protection
Liens” shall have the meaning set forth in Section
6.2.
“Standstill Period” means the
period commencing on the date of an Event of Default and ending upon the date
which is the earlier of (a) 180 days after the Revolving Lender has received a
Junior Lien Default Notice with respect to such Event of Default and (b) the
date on which the Revolving Credit Obligations have been Paid in Full; provided that in the
event that as of any day during such 180 days, no Event of
Default in respect of the Term Loan Obligations is continuing, then the
Standstill Period shall be deemed not to have commenced.
“Term Credit Agreement” means (a) the BFI
Note and (b) each promissory note or other instrument evidencing any initial or
subsequent replacement, substitution, renewal, or Refinancing of the Obligations
under the BFI Note, in each case as the same may from time to time be amended,
amended and restated, supplemented, modified, replaced, substituted, renewed or
Refinanced in accordance with the terms of this Agreement.
“Term Loan” means the term loan
made or outstanding under the Term Loan Documents.
“Term Loan Documents” means the
Term Credit Agreement, each guaranty, security agreement, mortgage, deed of
trust or other collateral or security document related thereto, constituting
collateral therefor or supporting the payment thereof and all other agreements,
documents and instruments at any time executed and/or delivered by any Obligor
or any other Person with, to or in favor of BFI in connection therewith or
related thereto, including such documents evidencing successive Refinancings of
the Term Loan Obligations, in each case, as amended, amended and restated,
supplemented, modified, replaced, substituted or renewed from time to time in
accordance with the terms of this Agreement.
“Term Loan Obligations” means
all obligations, liabilities and indebtedness of every kind, nature and
description owing by the Company or any other Obligor under the Term Loan
Documents, whether direct or indirect, absolute or contingent, joint or several,
due or not due, primary or secondary, liquidated or unliquidated, including
principal, interest, charges, fees, costs, indemnities and reasonable expenses,
however evidenced, and whether as principal, surety, endorser, guarantor or
otherwise, whether now existing or hereafter arising, whether arising before,
during or after the initial or any renewal term of the Term Credit Agreement and
whether arising before, during or after the commencement of any Insolvency
Proceeding with respect to the Company or any other Obligor (as such term is
defined in the Term Credit Agreement) (and including the payment of any
principal, interest, fees, cost, expenses and other amounts (including default
rate interest) which would accrue and become due but for the commencement of
such Insolvency Proceeding whether or not such amounts are allowed or allowable
in whole or in part in any such Insolvency Proceeding).
“Term Loan Priority Collateral”
means all Collateral other than Revolving Credit Priority Collateral (it being
understood that the Revolving Lender has and will acquire no Lien on Term Loan
Priority Collateral).
“Term Loan Secured Claim” means
any portion of the Term Loan Obligations.
“Term Loan Termination Date” means the
date on which all Term Loan Obligations have been Paid in Full.
“UCC” means the Uniform
Commercial Code of any applicable jurisdiction and, if the applicable
jurisdiction shall not have any Uniform Commercial Code, the Uniform Commercial
Code as in effect in the State of New York.
“UCC Notice” shall have the
meaning set forth in Section
3.1.
The terms
“Account,” “Chattel Paper,” “Document,” “Equipment,” “General Intangible,” “Goods,” “Instrument,” “Inventory,” “Letter-of-Credit Right,”
“Payment Intangible,”
and ““ shall have the meanings ascribed to them in the Uniform Commercial Code
as in effect in the State of New York from time to time.
(a) Each
Secured Creditor hereby acknowledges that other Secured Creditor has been
granted Liens upon the Collateral to secure its respective Obligations and
hereby consents to such grant.
(b) Notwithstanding
the foregoing, no Obligor
has granted to the Revolving Lender any Lien upon any Term Loan Priority
Collateral, and notwithstanding anything to the contrary contained in this
Agreement, BFI has not consented to any grant by any Obligor to the Revolving
Lender or as security for the Revolving Credit Obligations of any Lien upon any
Term Loan Priority Collateral. Until the Term Loan Termination Date,
no Obligor shall grant and the Revolving Lender shall not accept, any Lien upon
any Term Loan Collateral as security for any Revolving Credit
Obligations. In the event any such Lien is granted, the Revolving
Lender shall promptly execute and deliver and cause to be properly filed or
recorded any and all instruments and documents in order to terminate and release
of record any such Lien.
(c) The
Liens of the Revolving Lender on the Revolving Credit Priority Collateral to the
extent securing Revolving Credit Obligations shall be senior and prior in right
to the Liens of BFI on the Revolving Credit Priority Collateral, and such Liens
of BFI on the Revolving Credit Priority Collateral are and shall be junior and
subordinate to the Liens of the Revolving Lender in the Revolving Credit
Priority Collateral to the extent securing Revolving Credit
Obligations.
(d) The
priorities of the Liens provided in this Section 2.1 shall not
be altered or otherwise affected by any amendment, modification, supplement,
extension, renewal, restatement, replacement or Refinancing of any of the
Obligations, nor by any action or inaction which either of the Secured Creditors
may take or fail to take in respect of the Collateral.
Secured
Creditor, in the same form as received, with any necessary endorsements, and
each Junior Secured Creditor hereby authorizes the Priority Secured Creditor to
make any such endorsements as agent for the Junior Secured Creditor (which
authorization, being coupled with an interest, is irrevocable). Nothing
contained in this Section 2.4 shall constitute consent to the Revolving Lender
obtaining a Lien upon any Term Loan Priority Collateral.
Borrower),
upon the request of BFI, the Revolving Lender shall release such Revolving
Obligor from its obligations under the Revolving Credit Documents (in the event
that such Obligor will cease to be obligated in respect of the Term Loan
Obligations) and execute such documents in order to effect such release as BFI
shall request.
release
its Lien on such Revolving Credit Priority Collateral that is the subject of
such Permitted Junior Lien Disposition and that it does not intend to commence
an Enforcement Action (a “Designated Permitted
Disposition”) then, the provisions of any other section of this Agreement
to the contrary notwithstanding, the proceeds of such Designated Permitted
Disposition shall be applied to the Term Loan Obligations, until Paid in Full;
provided that
the Revolving Lender shall be deemed to have waived the provisions of the
applicable Documents to the extent necessary to permit such Designated Permitted
Disposition. In any event, any collection of an obligation
constituting Revolving Credit Priority Collateral shall be paid to the Revolving
Lender for application to the permanent reduction of the Revolving Credit
Obligations. Nothing contained in this Agreement shall restrict the
right of BFI to take any Enforcement Action at any time with respect to Term
Loan Priority Collateral or to require BFI to give any notice of same or to
account for any proceeds of any Disposition of Term Loan Priority
Collateral.
(b) In
the case of any other Permitted Junior Lien Disposition as to which the
Revolving Lender has not notified BFI that the Revolving Lender intends to
commence an Enforcement Action with respect to all or any part of the Revolving
Credit Priority Collateral (and as to which the Revolving Lender does not
thereafter commence any such Enforcement Action), the Revolving Lender shall (i)
upon the request of BFI, and concurrent with such Permitted Junior Lien
Disposition (free of the Lien securing Term Loan Obligations, such Lien
attaching to proceeds), release or otherwise terminate its Liens on such
Revolving Credit Priority Collateral, (ii) be deemed to have consented under the
Revolving Credit Documents to such Disposition free and clear of the Revolving
Lender’s Liens (it being understood that the Revolving Lender shall still, but
subject to this Agreement, have a security interest with respect to the proceeds
of such Revolving Credit Priority Collateral) and to have waived the provisions
of the Revolving Credit Documents to the extent necessary to permit such
transaction and (iii) deliver such Release Documents and take such further
actions as BFI may reasonably require in connection therewith; provided, however, that subject
to and in accordance with Section 2.4 hereof,
BFI shall cause to be paid and/or delivered directly to the Revolving Lender all
proceeds of any Permitted Junior Lien Disposition (other than a Designated
Permitted Disposition, which shall be applied as provided in clause (a) above)
for application in accordance with the priorities set forth in this
Agreement.
for any
such action or proceeding (including any foreclosure action or proceeding) as to
Revolving Credit Priority if the Priority Secured Creditor shall have commenced
the enforcement or exercise of any rights or remedies with respect to such
Revolving Credit Priority Collateral or any such action or proceeding
(including, without limitation, any of the following (if undertaken and pursued
to consummate a Disposition of such Revolving Credit Priority Collateral within
a commercially reasonable time): the solicitation of bids from third parties to
conduct the liquidation of all or any material portion of Revolving Credit
Priority Collateral, the engagement or retention of sales brokers, marketing
agents, investment bankers, accountants, auctioneers or other third parties for
the purpose of valuing, marketing, promoting or selling all or any material
portion of Revolving Credit Priority Collateral, the notification of account
debtors to make payments to the Revolving Lender or its agents (other than to a
lock box or similar arrangement in the ordinary course of business), the
initiation of any action to take possession of all or any material portion of
Revolving Credit Priority Collateral or the commencement of any legal
proceedings or actions against or with respect to the foreclosure and sale of
all or any material portion of Revolving Credit Priority Collateral, or the
diligent attempt in good faith to vacate any stay prohibiting an Enforcement
Action with respect to all or any material portion of Revolving Credit Priority
Collateral or diligently attempting in good faith to vacate any stay prohibiting
an Enforcement Action.
(a) In
the event that either Secured Creditor takes possession of or has “control” (as
such term is used in the UCC as in effect in each applicable jurisdiction) over
any Revolving Credit Priority Collateral for purposes of perfecting its Lien
therein, such Secured Creditor shall be deemed to be holding such Revolving
Credit Priority Collateral as representative for all Secured Creditors, solely
for purposes of perfection of its Lien under the UCC; provided that such
possessing or controlling Secured Creditor shall not have any duty or liability
to protect or preserve any rights pertaining to any of the Revolving Credit
Priority Collateral for the other Secured Creditor. Promptly
following the Term Loan Termination Date or Revolving Credit Termination Date,
as the case may be, BFI or the Revolving Lender, as the case may be, shall, upon
the request of the Revolving Lender or BFI, as the case may be, deliver the
remainder
of the
Revolving Credit Priority Collateral, if any, in its possession to the designee
of the requesting Secured Creditor (except as may otherwise be required by
applicable law or court order).
(b) It
is understood and agreed that this Section 3.4 is
intended solely to assure continuous perfection of the Liens granted under the
applicable Documents, and nothing in this Section 3.4 shall be
deemed or construed as altering the priorities or obligations set forth
elsewhere in this Agreement. The duties of each party under this
Section 3.4
shall be mechanical and administrative in nature, and no party shall have, or be
deemed to have, by reason of this Agreement or otherwise a fiduciary
relationship in respect of the other party.
4.2 Amendments to Revolving
Credit Documents. The Revolving Lender may at any time and
from time to time and without consent of or notice to BFI, without incurring any
liability to BFI and without impairing or releasing any rights or obligations
hereunder or otherwise, amend, restate, supplement, modify, substitute,
Refinance, renew or replace any or all of the Revolving Credit Documents; provided, however, that without
the consent as provided for in the Prior Intercreditor Agreement (hereafter
defined), the Revolving Lender shall not amend, restate, supplement, modify
substitute, renew or replace any or all of the Revolving Credit Documents to (a)
directly increase the interest rates on the Revolving Credit Obligations to an
amount greater than 3.0% per annum above rates as are in effect on the date
hereof (excluding, without limitation, fluctuations in underlying rate indices
and imposition of a default rate of 2% per annum), (b) increase the amount of
the Revolving Credit Obligations to an amount in excess of the Maximum Revolving
Credit Principal Amount, (c) impose
restrictions
on the ability of any Obligor to amend any Term Loan Documents or (d) obtain a
Lien on any Collateral, other than Revolving Credit Priority
Collateral.
afforded
by Sections 363(e) and (f) of the Bankruptcy Code to secured creditors (or by
any comparable provision of any Bankruptcy Law)) with respect to the Liens
granted in Revolving Credit Priority Collateral to BFI. No Junior Secured
Creditor shall initiate or prosecute or
join with any other Person to initiate or prosecute any claim, action or other
proceeding (i) challenging the enforceability of the Priority Secured Creditor’s
claims as fully secured claims with respect to all or part of the Priority
Obligations secured by Priority Collateral or for allowance of any Priority
Obligations (including those consisting of post-petition interest, fees or
expenses) or opposing any action by the Priority Secured Creditor to enforce
their rights or remedies arising under the applicable Documents as to its
Priority in a manner which is not prohibited by the terms of this Agreement,
(ii) challenging the enforceability, validity, priority (on terms inconsistent
with this Agreement) or perfected status of any Liens on any Priority Collateral
securing the Priority Obligations of the Primary Secured Creditors under the
applicable Documents, (iii) asserting any claims which any Obligor may hold with
respect to the Priority Secured Creditor, (iv) seeking to lift the automatic
stay with respect to any Enforcement Action against Collateral that, as to such
Junior Secured Creditor, is Non-Priority Collateral, to the extent that such
action is opposed by the Priority Secured Creditor as to such Collateral or (v)
opposing a motion by the Priority Secured Creditor to lift the automatic stay as
to an Enforcement Action with respect to Collateral that, as to such Priority
Secured Creditor, is Priority Collateral.
Junior
Secured Creditor, to demand, xxx for, collect and receive any and all such
Distributions in respect of any Junior Obligations to which the Priority Secured
Creditor is entitled hereunder.
(a) This
Agreement shall be binding upon each Secured Creditor and its respective
successors and assigns and shall inure to the benefit of each Secured Creditor
and its respective successors, participants and assigns. No other
Person shall have or be entitled to assert rights or benefits
hereunder.
(b) Each
Secured Creditor reserves the right to grant participations in, or otherwise
sell, assign, transfer or negotiate all or any part of, or any interest in,
their respective Obligations; provided that no
Secured Creditor shall be obligated to give any notices to or otherwise in any
manner deal directly with any participant in the Obligations and no participant
shall be entitled to any rights or benefits under this Agreement, except through
the Secured Creditor with which it is a participant.
(c) In
connection with any participation or other transfer or assignment, a Secured
Creditor (i) may, subject to its respective Documents, disclose to such
assignee, participant or other transferee or assignee all documents and
information which such Secured Creditor now or hereafter may have relating to
any Obligor or the Collateral and (ii) shall disclose to such participant
or other transferee or assignee the existence and terms and conditions of this
Agreement.
(a) if
to BFI, to it at the following address:
Attention: Black
Forest International, LLC
c/o BCGU, LLC
0000 Xxxxx xxx Xxxxx, Xxxxx
000
Xxxxxxxx, Xxxxxxxxxx 00000
Telephone: (000)
000-0000, ext. 206
Telecopier: (000)
000-0000
with a
copy to:
Xxxxxxx Xxxx, LLP
Attention:
Xxxxxxx Xxxx, Esq.
0000 Xxxxxxxx, 00xx
Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000)
000-0000
Telecopier: (000)
000-0000
(b) if
to the Revolving Lender, to it at the following address:
Greenfield
Commercial Credit, LLC
000 X.
Xxxx Xxxx Xx., Xxxxx 000
Xxxxxxxxxx
Xxxxx, Xxxxxxxx 00000
Attention:
Xxxxxx X. Xxxxx, Senior Vice President
Telephone:
Telecopier:
or, as to
each party, at such other address as shall be designated by such party in a
written notice to the other parties complying as to delivery with the terms of
this Section
7.3. All such notices and other communications shall be
effective (i) if sent by registered mail, return receipt requested, when
received or 3 Business Days after mailing, whichever first occurs, (ii) if
telecopied, when transmitted and a confirmation is received, provided the same is
on a Business Day and, if not, on the next Business Day or (iii) if delivered by
messenger or overnight courier, upon delivery, provided the same is
on a Business Day and, if not, on the next Business Day.
7.5 GOVERNING LAW; CONSENT TO
JURISDICTION AND VENUE. THIS AGREEMENT AND THE OBLIGATIONS
ARISING HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND
PERFORMED IN SUCH STATE AND ANY APPLICABLE LAWS OF THE UNITED STATES OF
AMERICA. EACH OF THE PARTIES HERETO HEREBY CONSENTS AND AGREES THAT
THE STATE OR FEDERAL COURTS LOCATED IN NEW YORK, NEW YORK SHALL HAVE
NON-EXCLUSIVE JURISDICTION TO HEAR AND DETERMINE ANY CLAIMS OR DISPUTES AMONG
THE PARTIES HERETO PERTAINING TO THIS AGREEMENT OR TO ANY MATTER ARISING OUT OF
OR RELATING TO THIS AGREEMENT; PROVIDED THAT THE
PARTIES HERETO ACKNOWLEDGE THAT ANY APPEALS FROM THOSE COURTS MAY HAVE TO BE
HEARD BY A COURT LOCATED OUTSIDE OF NEW YORK, NEW YORK.
modification
of this Agreement that increases any obligation of any Obligor shall be
effective against such Obligor unless such amendment or modification is in
writing and signed by such Obligor.
7.20 Prior Intercreditor
Agreement. Notwithstanding anything to the contrary contained in this
Agreement, each obligation of the Revolving Lender hereunder, and each right and
remedy of BFI hereunder, is subject in all respects to the obligations of the
Revolving Lender under an Amended And Restated Intercreditor Agreement, dated as
of July 31, 2007, by and among the Revolving Lender, Fourth Third LLC, as agent,
Earth LNG, Inc. and certain other Persons, as heretofore amended, modified or
supplemented from time to time (the “Prior Intercreditor
Agreement”). The Revolving Lender shall not be obligated to
perform any obligation under this Agreement, and BFI shall not attempt to
enforce any right or remedy under this Agreement, to the extent that the
performance of such obligation by the Revolving Lender or the enforcement of
such right or remedy by BFI would violate any obligation of the Revolving
Lender, or interfere with the enforcement of any right or remedy of the
Revolving Lender, under the Prior Intercreditor Agreement.
[THE
REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
BLACK
FOREST INTERNATIONAL, LLC
By: BCGU,
LLC, its administrative manager
By:
Business Consulting Group Unlimited, Inc., its
Administrative
manager
By: /s/ Xxxx
Xxxxxxx
Name: Xxxx Xxxxxxx,
Esq.
Title: Attorney in
Fact
GREENFIELD
COMMERCIAL CREDIT, LLC, as Revolving Lender
By: GCC Management, Inc.
Its Manager
By: /s/ Xxxxxx X.
Xxxxx
Xxxxxx
X. Xxxxx
Senior
Vice President
Each of
the undersigned hereby acknowledges and agrees to the foregoing terms and
provisions.
OBLIGORS:
PNG VENTURES, INC., a Nevada
corporation
By: /s/ Xxxxx
Xxxxxx
Name: Xxxxx
Xxxxxx
Title: Chief
Executive Officer
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