Exhibit F COLLATERAL AGENT AGREEMENT
Exhibit
10.2
Exhibit
F
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 hereunder by the Collateral Agent, including, without
limitation, the reasonable disbursements, expenses and fees of the attorneys
the
Collateral Agent may retain, if any, each of the foregoing in proportion to
their respective holdings of Debentures.
6. Reliance
on Documents and Experts.
The
Collateral Agent shall be entitled to rely upon any notice, consent,
certificate, affidavit, statement, paper, document, writing or communication
(which may be by telegram, cable, telex, telecopier, or telephone) reasonably
believed by it to be genuine and to have been signed, sent or made by the proper
person or persons, and upon opinions and advice of its own legal counsel,
independent public accountants and other experts selected by the Collateral
Agent.
7. Duties
of the Collateral Agent; Standard of Care.
(a) The
Collateral Agent’s only duties are those expressly set forth in this Agreement,
and the Collateral Agent hereby is authorized to perform those duties in
accordance with commercially reasonable practices. The Collateral Agent may
exercise or otherwise enforce any of its rights, powers, privileges, remedies
and interests under this Agreement and applicable law or perform any of its
duties under this Agreement by or through its officers, employees, attorneys,
or
agents.
(b) The
Collateral Agent shall act in good faith and with that degree of care that
an
ordinarily prudent person in a like position would use under similar
circumstances.
(c) Any
funds
held by the Collateral Agent hereunder need not be segregated from other funds
except to the extent required by law. The Collateral Agent shall be under no
liability for interest on any funds received by it hereunder.
8. Resignation.
The
Collateral Agent may resign and be discharged of its duties hereunder at any
time by giving written notice of such resignation to the other parties hereto,
stating the date such resignation is to take effect. Within five (5) days of
the
giving of such notice, a successor collateral agent shall be appointed by the
Majority in Interest; provided,
however,
that if
the Lenders are unable to agree upon a successor within such time period and
are
unable to notify the Collateral Agent during such period of the identity of
the
successor collateral agent, the successor collateral agent may be a person
designated by the Collateral Agent, and any and all fees of such successor
collateral agent shall be the joint and several obligation of the Lenders.
The
Collateral Agent shall continue to serve until the effective date of the
resignation or until its successor accepts the appointment and receives the
Collateral held by the Collateral Agent but shall not be obligated to take
any
action hereunder. The Collateral Agent may deposit any Collateral with the
Supreme Court of the State of New York for New York County or any such other
court in New York State that accepts such Collateral.
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9. Exculpation.
The
Collateral Agent and its officers, employees, attorneys and agents shall not
incur any liability whatsoever for the holding or delivery of documents or
the
taking of any other action in accordance with the terms and provisions of this
Agreement, for any mistake or error in judgment, for compliance with any
applicable law or any attachment, order or other directive of any court or
other
authority (irrespective of any conflicting term or provision of this Agreement),
or for any act or omission of any other person engaged by the Collateral Agent
in connection with this Agreement, unless occasioned by the exculpated person’s
own gross negligence or willful misconduct; and each party hereto hereby waives
any and all claims and actions whatsoever against the Collateral Agent and
its
officers, employees, attorneys and agents, arising out of or related directly
or
indirectly to any or all of the foregoing acts, omissions and circumstances.
10. Indemnification.
The
Lenders hereby agree to indemnify, reimburse and hold harmless the Collateral
Agent and its directors, officers, employees, attorneys and agents, jointly
and
severally, from and against any and all claims, liabilities, losses and expenses
that may be imposed upon, incurred by, or asserted against any of them, arising
out of or related directly or indirectly to this Agreement or the Collateral,
except such as are occasioned by the indemnified person’s own gross negligence
or willful misconduct.
11. Miscellaneous.
(a) Rights
and Remedies Not Waived.
No act,
omission or delay by the Collateral Agent shall constitute a waiver of the
Collateral Agent’s rights and remedies hereunder or otherwise. No single or
partial waiver by the Collateral Agent of any default hereunder or right or
remedy that it may have shall operate as a waiver of any other default, right
or
remedy or of the same default, right or remedy on a future
occasion.
(b) Governing
Law.
This
Agreement shall be governed by, and construed in accordance with, the laws
of
the State of New York without
regard to
conflicts
of laws that
would result
in
the application of the
substantive laws of another
jurisdiction.
(c) Waiver
of Jury Trial and Setoff; Consent to Jurisdiction; Etc.
(i) In
any
litigation in any court with respect to, in connection with, or arising out
of
this Agreement or any instrument or document delivered pursuant to this
Agreement, or the validity, protection, interpretation, collection or
enforcement hereof or thereof, or any other claim or dispute howsoever arising,
between the Collateral Agent and the Lenders or any Lender, then each Lender,
to
the fullest extent it may legally do so, (A) waives the right to interpose
any
setoff, recoupment, counterclaim or cross-claim in connection with any such
litigation, irrespective of the nature of such setoff, recoupment, counterclaim
or cross-claim, unless such setoff, recoupment, counterclaim or cross-claim
could not, by reason of any applicable federal or state procedural laws, be
interposed, pleaded or alleged in any other action; and (B) WAIVES
TRIAL BY JURY IN CONNECTION WITH ANY SUCH LITIGATION AND ANY RIGHT IT MAY HAVE
TO CLAIM OR RECOVER IN ANY SUCH LITIGATION ANY SPECIAL, EXEMPLARY, PUNITIVE
OR
CONSEQUENTIAL DAMAGES OR ANY DAMAGES OTHER THAN, OR IN ADDITION TO, ACTUAL
DAMAGES. EACH LENDER AGREES THAT THIS SECTION 11(c) IS A SPECIFIC AND MATERIAL
ASPECT OF THIS AGREEMENT AND ACKNOWLEDGES THAT THE COLLATERAL AGENT WOULD NOT
ENTER THIS AGREEMENT IF THIS SECTION 11(c) WERE NOT PART OF THIS
AGREEMENT.
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(ii) Each
Lender irrevocably consents to the exclusive jurisdiction of any State or
Federal Court located within the County of New York, State of New York, in
connection with any action or proceeding arising out of or relating to this
Agreement or any document or instrument delivered pursuant to this Agreement
or
otherwise. In any such litigation, each Lender waives, to the fullest extent
it
may effectively do so, personal service of any summons, complaint or other
process and agree that the service thereof may be made by certified or
registered mail directed to such Lender at its address for notice determined
in
accordance with Section 11(e) hereof. Each Lender hereby waives, to the fullest
extent it may effectively do so, the defenses of forum non conveniens and
improper venue.
(d) Admissibility
of this Agreement.
Each of
the Lenders agrees that any copy of this Agreement signed by it and transmitted
by telecopier for delivery to the Collateral Agent shall be admissible in
evidence as the original itself in any judicial or administrative proceeding,
whether or not the original is in existence.
(e) Address
for Notices.
Any
notice or other communication under the provisions of this Agreement shall
be
given in writing and delivered in person, by reputable overnight courier or
delivery service, by facsimile machine (receipt confirmed) with a copy sent
by
first class mail on the date of transmissions, or by registered or certified
mail, return receipt requested, directed to such party’s addresses set forth
below (or to any new address of which any party hereto shall have informed
the
others by the giving of notice in the manner provided herein):
In
the
case of the Collateral Agent, to him at:
Axiom
Capital Management, Inc.
_________________________________
_________________________________
_________________________________
Telephone:
________________________
Fax:
_____________________________
Email:
____________________________
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With
a
copy to:
▇▇▇▇▇▇▇▇
▇▇▇▇▇ & Deutsch, LLP
_________________________________
_________________________________
_________________________________
Telephone:
________________________
Fax:
_____________________________
Email:
____________________________
In
the
case of the Lenders, to:
The
address and telecopier number set forth on
Schedule
A hereto.
In
the
case of Debtors, to:
USTelematics,
Inc.
▇▇▇
▇▇▇▇▇▇▇ ▇▇.
▇▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, CEO & President
Fax:
(▇▇▇) ▇▇▇-▇▇▇▇
Email:
▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
With
a
copy by telecopier only to:
▇▇▇▇
▇.
▇▇▇▇▇▇, LLC
▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Telephone:
(▇▇▇) ▇▇▇-▇▇▇▇
Fax:
(▇▇▇) ▇▇▇-▇▇▇▇
Email:
▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇▇
(f) Amendments
and Modification; Additional Lender.
No
provision hereof shall be modified, altered, waived or limited except by written
instrument expressly referring to this Agreement and to such provision, and
executed by the parties hereto. Any transferee of a Debenture who acquires
a
Debenture after the date hereof will become a party hereto by signing the
signature page and sending an executed copy of this Agreement to the Collateral
Agent and receiving a signed acknowledgement from the Collateral
Agent.
(g) Fee.
Upon
the occurrence of an Event of Default, the Lenders collectively shall pay the
Collateral Agent the sum of $10,000 on account, to apply against an hourly
fee
of $350 to be paid to the Collateral Agent by the Lenders for services rendered
pursuant to this Agreement. All payments due to the Collateral Agent under
this
Agreement including reimbursements must be paid when billed. The Collateral
Agent may refuse to act on behalf of or make a distribution to any Lender who
is
not current in payments to the Collateral Agent. Payments required pursuant
to
this Agreement shall be pari passu
to the
Lenders’ interests in the Debentures. The Collateral Agent is hereby authorized
to deduct any sums due the Collateral Agent from Collateral in the Collateral
Agent’s possession.
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(h)
Counterparts/Execution.
This
Agreement may be executed in any number of counterparts and by the different
signatories hereto on separate counterparts, each of which, when so executed,
shall be deemed an original, but all such counterparts shall constitute but
one
and the same instrument. This Agreement may be executed by facsimile signature
and delivered by facsimile transmission.
(i) Successors
and Assigns.
Whenever in this Agreement reference is made to any party, such reference shall
be deemed to include the successors, assigns, heirs and legal representatives
of
such party. No party hereto may transfer any rights under this Agreement, unless
the transferee agrees to be bound by, and comply with all of the terms and
provisions of this Agreement, as if an original signatory hereto on the date
hereof.
(j) Captions:
Certain Definitions.
The
captions of the various sections and paragraphs of this Agreement have been
inserted only for the purposes of convenience; such captions are not a part
of
this Agreement and shall not be deemed in any manner to modify, explain, enlarge
or restrict any of the provisions of this Agreement. As used in this Agreement
the term “person”
shall
mean and include an individual, a partnership, a joint venture, a corporation,
a
limited liability company, a trust, an unincorporated organization and a
government or any department or agency thereof.
(k) Severability.
In the
event that any term or provision of this Agreement shall be finally determined
to be superseded, invalid, illegal or otherwise unenforceable pursuant to
applicable law by an authority having jurisdiction and venue, that determination
shall not impair or otherwise affect the validity, legality or enforceability
(i) by or before that authority of the remaining terms and provisions of this
Agreement, which shall be enforced as if the unenforceable term or provision
were deleted, or (ii) by or before any other authority of any of the terms
and
provisions of this Agreement.
(l) Entire
Agreement.
This
Agreement contains the entire agreement of the parties and supersedes all other
agreements and understandings, oral or written, with respect to the matters
contained herein.
(m) Schedules.
The
Collateral Agent is authorized to annex hereto any schedules referred to
herein.
[THIS
SPACE INTENTIONALLY LEFT BLANK]
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IN
WITNESS WHEREOF, the parties hereto have caused this Collateral Agent Agreement
to be signed, by their respective duly authorized officers or directly, as
of
the date first written above.
“LENDERS”
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_______________________________________
___________________ Collateral
Agent
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Acknowledged:
USTELEMATICS,
INC.
For
Itself and on behalf of the Subsidiaries
By:
Name:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title:
CEO and President
This
Collateral Agent Agreement may be signed by facsimile signature and delivered
by
confirmed
facsimile transmission.
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SCHEDULE
A TO COLLATERAL AGENT AGREEMENT
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LENDER
NAME AND ADDRESS
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PRINCIPAL
AMOUNT OF DEBENTURES
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TOTALS
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