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Exhibit 10.2
Exhibit F
COLLATERAL AGENT
AGREEMENT
COLLATERAL AGENT AGREEMENT (this "
Agreement ") dated as of December 7, 2006, among Axiom
Capital Management, Inc. (the " Collateral Agent "), and the
parties identified on Schedule A hereto (each, individually, a "
Lender " and collectively, the " Lenders "), who hold
or will acquire 9% Secured Convertible Debentures due December 7,
2008 issued or to be issued by USTelematics, Inc. ("Parent"), a
Delaware corporation, at or about the date of this Agreement as
described in the Security Agreement referred to in Section 1(a)
below (collectively herein the " Debentures ").
WHEREAS, the Lenders have made, are making and
will be making loans to Parent, as evidenced by the Debentures, to
be secured by certain collateral; and
WHEREAS, it is desirable to provide for the
orderly administration of such collateral by requiring each Lender
to appoint the Collateral Agent, and the Collateral Agent has
agreed to accept such appointment and to receive, hold and deliver
such collateral, all upon the terms and subject to the conditions
hereinafter set forth; and
WHEREAS, it is desirable to allocate the
enforcement of certain rights of the Lenders under the Debentures
for the orderly administration thereof.
NOW, THEREFORE, in consideration of the premises
set forth herein and for other good and valuable consideration, the
parties hereto agree as follows:
1. Collateral .
(a) Contemporaneously with the execution and delivery of this
Agreement by the Collateral Agent and the Lenders, (i) the
Collateral Agent has or will have entered into an Amended and
Restated Security Agreement among the Collateral Agent, Parent and
______________ and _______________ (each a "Guarantor" and together
with Parent, "Debtors") (the " Security Agreement "),
regarding the grant of a security interest in assets owned by
Debtors (such assets are referred to herein and in the Security
Agreement as the " Collateral ") to the Collateral Agent,
for the benefit of the Lenders and (ii) Parent is issuing the
Debentures to the Lenders pursuant to a Securities Purchase
Agreement dated at or about the date of this Agreement (the "
Securities Purchase Agreement "). Collectively, the Security
Agreement, the Debentures and Securities Purchase Agreement and
other agreements referred to therein are referred to herein as "
Borrower Documents ".
(b) The Collateral
Agent hereby acknowledges that any Collateral held by the
Collateral Agent is held for the benefit of the Lenders in
accordance with this Agreement and the Borrower Documents. No
reference to the Borrower Documents or any other instrument or
document shall be deemed to incorporate any term or provision
thereof into this Agreement unless expressly so
provided.
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(c) The Collateral
Agent is to distribute in accordance with the Borrower Documents
any proceeds received from the Collateral which are distributable
to the Lenders in proportion to their respective interests in the
Obligations as defined in the Security Agreement.
2. Appointment of
the Collateral Agent .
The Lenders hereby appoint the Collateral Agent
(and the Collateral Agent hereby accepts such appointment) to take
any action including, without limitation, the registration of any
Collateral in the name of the Collateral Agent or its nominees
prior to or during the continuance of an Event of Default (as
defined in the Borrower Documents), the exercise of voting rights
upon the occurrence and during the continuance of an Event of
Default, the application of any cash collateral received by the
Collateral Agent to the payment of the Obligations, the making of
any demand under the Borrower Documents, the exercise of any
remedies given to the Collateral Agent pursuant to the Borrower
Documents and the exercise of any authority pursuant to the
appointment of the Collateral Agent as an attorney-in-fact pursuant
to the Security Agreement that the Collateral Agent deems necessary
or proper for the administration of the Collateral pursuant to the
Security Agreement. Upon disposition of the Collateral in
accordance with the Borrower Documents, the Collateral Agent shall
promptly distribute any cash or Collateral in accordance with
Section 10.4 of the Security Agreement. Lenders must notify
Collateral Agent in writing of the issuance of any Debentures to
Lenders by Parent not listed on Schedule A. The Collateral Agent
will not be required to act hereunder in connection with Debentures
the issuance of which was not disclosed in writing to the
Collateral Agent nor will the Collateral Agent be required to act
on behalf of any assignee of Debentures unless notice of such
assignment has been provided to the Collateral Agent pursuant to
Section 11(f).
3. Action by the
Majority in Interest .
(a) Certain
Actions . Each of the Lenders covenants and agrees that only
a Majority in Interest shall have the right, but not the
obligation, to undertake the following actions (it being expressly
understood that less than a Majority in Interest hereby expressly
waive the following rights that they may otherwise have under the
Borrower Documents):
(i) Acceleration . If an Event of Default occurs, after the
applicable cure period, if any, a Majority in Interest may, on
behalf of all the Lenders, instruct the Collateral Agent to provide
to Debtors notice to cure such default and/or declare the unpaid
principal amount of the Debentures to be due and payable, together
with any and all accrued interest thereon and all costs payable
pursuant to such Debentures;
(ii) Enforcement . Upon the occurrence of any Event of
Default after the applicable cure period, if any, a Majority in
Interest may instruct the Collateral Agent to proceed to protect,
exercise and enforce, on behalf of all the Lenders, their rights
and remedies under the Borrower Documents against Debtors, and such
other rights and remedies as are provided by law or equity;
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(iii) Waiver of
Past Defaults . A Majority in Interest may instruct the
Collateral Agent to waive any Event of Default by written notice to
Debtors, and the other Lenders; and
(iv) Amendment . A Majority in Interest may instruct the
Collateral Agent to waive, amend, supplement or modify any term,
condition or other provision in the Debenture or Borrower Documents
in accordance with the terms of the Debenture or Borrower Documents
so long as such waiver, amendment, supplement or modification is
made with respect to all of the Debentures and with the same force
and effect with respect to each of the Lenders.
(b) Permitted
Subordination . A Majority in Interest may instruct the
Collateral Agent to agree to subordinate any Collateral to any
claim and may enter into any agreement with Debtors to evidence
such subordination; provided , however , that subsequent
to any such subordination, each Debenture shall remain pari
passu with each other Debenture held by the
Lenders.
(c) Further
Actions . A Majority in Interest may instruct the Collateral
Agent to take any action that it may take under this Agreement by
instructing the Collateral Agent in writing to take such action on
behalf of all the Lenders.
(d) Majority in
Interest . For so long as any Debentures remain outstanding,
a Majority in Interest for the purposes of this Agreement and the
Security Agreement shall mean Lenders who hold not less than ninety
percent (90%) of the outstanding principal amount of the
Debentures.
4. Power of
Attorney .
(a) To effectuate
the terms and provisions hereof, the Lenders hereby appoint the
Collateral Agent as their attorney-in-fact (and the Collateral
Agent hereby accepts such appointment) for the purpose of carrying
out the provisions of this Agreement including, without limitation,
taking any action on behalf of, or at the instruction of, the
Majority in Interest at the written direction of the Majority in
Interest and executing any consent authorized pursuant to this
Agreement and taking any action and executing any instrument that
the Collateral Agent may deem necessary or advisable (and lawful)
to accomplish the purposes hereof.
(b) All acts done
under the foregoing authorization are hereby ratified and approved
and neither the Collateral Agent nor any designee nor agent thereof
shall be liable for any acts of commission or omission, for any
error of judgment, for any mistake of fact or law except for acts
of gross negligence or willful misconduct.
(c) This power of
attorney, being coupled with an interest, is irrevocable while this
Agreement remains in effect.
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5. Expenses of
the Collateral Agent . The Lenders shall pay any and all
reasonable costs and expenses incurred by the Collateral Agent,
including, without limitation, reasonable costs and expenses
relating to all waivers, releases, discharges, satisfactions,
modifications and amendments of this Agreement, the administration
and holding of the Collateral, insurance expenses, and the
enforcement, protection and adjudication of the parties’
rights
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