GUARANTEE AND COLLATERAL AGREEMENT
Execution Version
Dated as of July 9, 2024
among
CLOUDIUM TECHNOLOGIES PLC, a public limited company incorporated under the laws of England and Wales (Company No. 09734521), as Borrower,
EACH OF THE SUBSIDIARY GUARANTORS LISTED ON SCHEDULE I HERETO, as Guarantors,
and
MERIDIAN ATLANTIC BANK, N.A., a national banking association, as Collateral Agent for the Secured Parties
In connection with the Credit Agreement dated as of July 9, 2024 (as amended, restated, supplemented, or otherwise modified from time to time, the "Credit Agreement"), among Cloudium Technologies plc, as Borrower, Meridian Atlantic Bank, N.A., as Administrative Agent and Collateral Agent, Ironclad Capital Markets LLC, as Co-Arranger and Joint Bookrunner, and the Lenders party thereto from time to time.
The Borrower is the surviving corporation in the reverse triangular merger consummated on July 9, 2024, pursuant to the Agreement and Plan of Merger dated January 22, 2024 (the "Merger Agreement"), among the Borrower, Stratos Merger Sub Inc., a Delaware corporation, and Solara Digital Infrastructure Fund VI LP, a Delaware limited partnership.
Right-click to update Table of Contents
This GUARANTEE AND COLLATERAL AGREEMENT (this "Agreement"), dated as of July 9, 2024, is entered into by and among CLOUDIUM TECHNOLOGIES PLC, a public limited company incorporated under the laws of England and Wales (Company No. 09734521) (the "Borrower"), each of the subsidiary guarantors listed on Schedule I hereto (each, a "Guarantor" and, collectively with the Borrower, the "Grantors"), and MERIDIAN ATLANTIC BANK, N.A., a national banking association, as collateral agent (in such capacity, the "Collateral Agent") for the benefit of the Secured Parties (as defined herein).
RECITALS
WHEREAS:
A. The Borrower, Meridian Atlantic Bank, N.A., as Administrative Agent and Collateral Agent, Ironclad Capital Markets LLC, as Co-Arranger and Joint Bookrunner, and the several lenders from time to time party thereto (the "Lenders") have entered into that certain Credit Agreement dated as of July 9, 2024 (as amended, restated, supplemented, or otherwise modified from time to time, the "Credit Agreement"), pursuant to which the Lenders have agreed to make available to the Borrower (i) a term loan B facility in an aggregate principal amount of Three Billion Seven Hundred Forty Million Dollars ($3,740,000,000) (the "Term Loan B Facility"), bearing interest at a rate per annum equal to the Secured Overnight Financing Rate ("SOFR") plus 325 basis points, maturing on July 9, 2031, and (ii) a revolving credit facility in an aggregate principal amount of Five Hundred Million Dollars ($500,000,000) (the "Revolving Credit Facility"), bearing interest at a rate per annum equal to SOFR plus 275 basis points, maturing on July 9, 2029, in each case on the terms and subject to the conditions set forth in the Credit Agreement;
B. Solara Digital Infrastructure Fund VI LP, a Delaware limited partnership (EIN: 87-4523190) ("Fund VI"), through its wholly owned subsidiary, Stratos Merger Sub Inc., a Delaware corporation (DE File No. 7923841) ("Merger Sub"), acquired the Borrower pursuant to that certain Agreement and Plan of Merger dated January 22, 2024 (the "Merger Agreement"), among the Borrower, Merger Sub, and Fund VI. The merger contemplated by the Merger Agreement was consummated on July 9, 2024, by means of a reverse triangular merger in which Merger Sub merged with and into the Borrower, with the Borrower surviving as a wholly owned subsidiary of Fund VI. The Certificate of Merger was filed with the Secretary of State of the State of Delaware at 11:59 PM Eastern Time on July 9, 2024;
C. The total enterprise value of the transactions contemplated by the Merger Agreement was approximately Six Billion Eight Hundred Million Dollars ($6,800,000,000). The per-share merger consideration paid to holders of the Borrower's ordinary shares was approximately Thirty-Six Dollars and Ninety-Two Cents ($36.92) per share for an aggregate of 184,200,000 shares outstanding immediately prior to the effective time of the merger. In connection with the closing of the transactions, existing indebtedness of the Borrower in the aggregate principal amount of Eight Hundred Twenty Million Dollars ($820,000,000) outstanding under that certain credit agreement dated March 15, 2021, among the Borrower and Atlas Commercial Lending Corp., as administrative agent, was repaid in full and discharged concurrently with the closing;
D. It is a condition precedent to the availability of the initial extensions of credit under the Credit Agreement that the Grantors execute and deliver this Agreement to (i) guarantee the Obligations (as defined in the Credit Agreement) and (ii) grant security interests in the Collateral (as defined herein) to the Collateral Agent, for the ratable benefit of the Secured Parties, to secure such Obligations;
E. Each Grantor will derive substantial direct and indirect benefit from the extensions of credit made available under the Credit Agreement and the other Loan Documents, and each Grantor has determined that the execution, delivery, and performance of this Agreement is in its best interest and in furtherance of its corporate purposes; and
F. The Collateral Agent, the Borrower, Fund VI, and certain other secured parties have entered into that certain Intercreditor Agreement dated as of July 9, 2024 (as amended, restated, supplemented, or otherwise modified from time to time, the "Intercreditor Agreement"), among Meridian Atlantic Bank, N.A., in its capacity as first lien agent, Fund VI, and the other parties thereto, governing the relative priorities and rights of the secured parties thereunder with respect to the Collateral and certain related matters.
NOW, THEREFORE, in consideration of the premises and the mutual covenants and agreements contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE I — DEFINITIONS
Section 1.01 — Defined Terms
Capitalized terms used but not otherwise defined herein shall have the meanings assigned to such terms in the Credit Agreement. As used in this Agreement, the following terms shall have the meanings set forth below:
"Administrative Agent" means Meridian Atlantic Bank, N.A., a national banking association, having its principal office at 383 Madison Avenue, New York, New York 10179, in its capacity as administrative agent under the Credit Agreement, or any successor administrative agent appointed in accordance with the terms of the Credit Agreement.
"Agreement" means this Guarantee and Collateral Agreement, as amended, restated, supplemented, or otherwise modified from time to time in accordance with the terms hereof.
"Borrower" means Cloudium Technologies plc, a public limited company incorporated under the laws of England and Wales (Company No. 09734521), with its registered office at 45 Broadwick Street, London W1F 0DB, United Kingdom, and its United States headquarters located at 600 Townsend Street, Suite 800, San Francisco, California 94103 (EIN: 83-2196754). The Borrower's ordinary shares were previously listed on the Nasdaq Stock Market under the ticker symbol "CLDM" and were delisted effective July 10, 2024, in connection with the consummation of the transactions contemplated by the Merger Agreement.
"Collateral" means all assets and property of each Grantor, whether now owned or hereafter acquired, in which a security interest is granted pursuant to Section 3.01 of this Agreement, including without limitation all equity interests in subsidiaries, accounts receivable, general intangibles (including payment intangibles and software), intellectual property (including patents, trademarks, copyrights, trade secrets, and domain names), equipment, chattel paper (whether tangible or electronic), deposit accounts, investment property, instruments, letter-of-credit rights, commercial tort claims, inventory, documents, supporting obligations, books and records, and all proceeds (including cash proceeds, non-cash proceeds, insurance proceeds, and condemnation awards) of any and all of the foregoing, but excluding the Excluded Assets.
"Collateral Agent" means Meridian Atlantic Bank, N.A., in its capacity as collateral agent for the Secured Parties under this Agreement and the other Loan Documents, or any successor collateral agent appointed in accordance with the terms of the Credit Agreement.
"Commercial Tort Claims" means all commercial tort claims (as defined in Article 9 of the UCC) of each Grantor, whether now existing or hereafter arising, including without limitation those commercial tort claims identified on Schedule IV hereto.
"Commodity Exchange Act" means the Commodity Exchange Act, 7 U.S.C. §§ 1 et seq., as amended from time to time, and any successor statute.
"Copyright Security Agreement" means any copyright security agreement executed by a Grantor in favor of the Collateral Agent, for the benefit of the Secured Parties, granting a security interest in registered copyrights of such Grantor.
"Credit Agreement" has the meaning assigned to such term in the preamble to this Agreement.
"Equity Interests" means all issued and outstanding shares of capital stock, limited liability company membership interests, partnership interests, or other equity interests in each Guarantor and each subsidiary of the Borrower, as applicable, that are pledged hereunder, as more particularly set forth on Schedule II hereto, together with any equity interests hereafter acquired by any Grantor in any such entity.
"Event of Default" has the meaning assigned to such term in the Credit Agreement.
"Excluded Assets" means those assets and property excluded from the Collateral as set forth in Section 3.02 of this Agreement.
"FSHCO" means a domestic entity treated as a corporation for U.S. federal income tax purposes substantially all of the assets of which consist of equity interests in (or equity interests and indebtedness of) one or more CFCs.
"Grantor" means the Borrower and each Guarantor, individually, and "Grantors" means the Borrower and all Guarantors, collectively.
"Guaranteed Obligations" means all Obligations (as defined in the Credit Agreement) of the Borrower and each other Loan Party arising under or in connection with the Credit Agreement and each other Loan Document, whether now existing or hereafter arising, whether direct or indirect, absolute or contingent, due or to become due, and howsoever arising, including without limitation (a) all principal, interest (including post-petition interest, whether or not allowable as a claim in any insolvency proceeding), fees, indemnities, costs, expenses, and other amounts payable by the Borrower or any Loan Party under the Credit Agreement or any other Loan Document, (b) all obligations in respect of Banking Services Obligations (as defined in the Credit Agreement), and (c) all obligations in respect of Swap Obligations (as defined in the Credit Agreement), in each case to the extent constituting "Obligations" under and as defined in the Credit Agreement.
"Guarantors" means each subsidiary of the Borrower listed on Schedule I hereto and each other subsidiary of the Borrower that becomes a party hereto as a Guarantor after the date hereof pursuant to Section 5.02.
"Intercreditor Agreement" means that certain Intercreditor Agreement dated as of July 9, 2024, among Meridian Atlantic Bank, N.A., in its capacity as first lien agent, Solara Digital Infrastructure Fund VI LP, and the other parties thereto from time to time, as the same may be amended, restated, supplemented, or otherwise modified from time to time.
"Lenders" has the meaning assigned to such term in the Credit Agreement.
"Loan Documents" has the meaning assigned to such term in the Credit Agreement.
"Merger Agreement" means that certain Agreement and Plan of Merger dated as of January 22, 2024, among the Borrower, Stratos Merger Sub Inc., a Delaware corporation, and Solara Digital Infrastructure Fund VI LP, a Delaware limited partnership, as the same may have been amended, restated, supplemented, or otherwise modified from time to time prior to the date hereof.
"Obligations" has the meaning assigned to such term in the Credit Agreement.
"Patent Security Agreement" means any patent security agreement executed by a Grantor in favor of the Collateral Agent, for the benefit of the Secured Parties, granting a security interest in registered patents and patent applications of such Grantor.
"Permitted Liens" has the meaning assigned to such term in the Credit Agreement.
"Pledged Equity" means the equity interests listed on Schedule II hereto, together with all dividends, distributions, cash, instruments, and other property from time to time received, receivable, or otherwise distributed in respect of or in exchange for any or all of such equity interests, and all warrants, rights, or options issued thereon or with respect thereto.
"Qualified ECP Guarantor" means, with respect to any Swap Obligation, each Grantor that has total assets exceeding $10,000,000 at the time the relevant guarantee or grant of the relevant security interest becomes or would become effective with respect to such Swap Obligation or such other person as constitutes an "eligible contract participant" under the Commodity Exchange Act or any regulations promulgated thereunder and can cause another person to qualify as an "eligible contract participant" at such time by entering into a keepwell under Section 1a(18)(A)(v)(II) of the Commodity Exchange Act.
"Revolving Credit Facility" has the meaning assigned to such term in Recital A.
"Secured Parties" means, collectively, the Administrative Agent, the Collateral Agent, each Lender, each counterparty to a Specified Swap Agreement (as defined in the Credit Agreement), and each provider of Banking Services (as defined in the Credit Agreement), in each case to the extent such person holds "Obligations" as defined in the Credit Agreement.
"Swap Obligation" means, with respect to any Grantor, any obligation to pay or perform under any agreement, contract, or transaction that constitutes a "swap" within the meaning of Section 1a(47) of the Commodity Exchange Act.
"Term Loan B Facility" has the meaning assigned to such term in Recital A.
"Trademark Security Agreement" means any trademark security agreement executed by a Grantor in favor of the Collateral Agent, for the benefit of the Secured Parties, granting a security interest in registered trademarks and trademark applications of such Grantor.
"UCC" means the Uniform Commercial Code as in effect from time to time in the State of New York; provided, however, that if, by reason of mandatory provisions of law, the perfection, the effect of perfection or non-perfection, or the priority of the security interest in any item or portion of the Collateral is governed by the Uniform Commercial Code as in effect in a jurisdiction other than the State of New York, "UCC" means the Uniform Commercial Code as in effect from time to time in such other jurisdiction for purposes of the provisions hereof relating to such perfection, effect of perfection or non-perfection, or priority.
Section 1.02 — Other Interpretive Provisions
With reference to this Agreement and each other Loan Document, unless otherwise specified herein or in such other Loan Document:
(a) The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine, and neuter forms. The words "include," "includes," and "including" shall be deemed to be followed by the phrase "without limitation." The word "will" shall be construed to have the same meaning and effect as the word "shall." Unless the context requires otherwise, (i) any definition of or reference to any agreement, instrument, or other document shall be construed as referring to such agreement, instrument, or other document as from time to time amended, supplemented, or otherwise modified (subject to any restrictions on such amendments, supplements, or modifications set forth herein or in any other Loan Document), (ii) any reference herein to any person shall be construed to include such person's successors and assigns, (iii) the words "herein," "hereof," and "hereunder," and words of similar import when used in this Agreement, shall be construed to refer to this Agreement in its entirety and not to any particular provision hereof, (iv) all references in this Agreement to Articles, Sections, Exhibits, and Schedules shall be construed to refer to Articles and Sections of, and Exhibits and Schedules to, this Agreement, (v) any reference to any law shall include all statutory and regulatory provisions consolidating, amending, replacing, or interpreting such law and any reference to any law or regulation shall, unless otherwise specified, refer to such law or regulation as amended, modified, or supplemented from time to time, and (vi) the words "asset" and "property" shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts, and contract rights.
(b) The headings and captions used in this Agreement are for convenience of reference only and shall not affect the interpretation or construction of this Agreement.
(c) In the computation of periods of time from a specified date to a later specified date, the word "from" means "from and including," the word "to" means "to but excluding," and the word "through" means "through and including."
(d) Section headings herein are included for convenience of reference only and shall not affect the interpretation of this Agreement.
Section 1.03 — UCC Terms
Terms used in this Agreement that are not otherwise defined herein and that are defined in Articles 8 or 9 of the UCC (including "account," "chattel paper," "commercial tort claim," "deposit account," "document," "equipment," "general intangible," "goods," "instrument," "inventory," "investment property," "letter-of-credit right," "proceeds," "securities account," "security," and "supporting obligation") shall have the respective meanings assigned to such terms in Articles 8 or 9 of the UCC, as applicable. To the extent that the definition of any category of Collateral is modified or expanded by any amendment, modification, or revision to the UCC, such modified or expanded definition shall automatically apply to the corresponding term as used in this Agreement.
ARTICLE II — GUARANTEE
Section 2.01 — Guarantee of Obligations
Each Guarantor hereby unconditionally and irrevocably guarantees, jointly and severally with each other Guarantor, to the Collateral Agent, for the benefit of the Secured Parties, the full and punctual payment when due (whether at stated maturity, by acceleration, by mandatory prepayment, or otherwise) and performance of all Guaranteed Obligations. This guarantee constitutes a guarantee of payment and performance and not merely of collection, and each Guarantor specifically agrees that it shall not be necessary or required that any Secured Party exercise any right, assert any claim, or demand, or enforce any remedy whatsoever against the Borrower or any other Grantor (or any other person) before or as a condition to the obligations of such Guarantor hereunder. As of the date hereof, the total committed facilities under the Credit Agreement aggregate to Four Billion Two Hundred Forty Million Dollars ($4,240,000,000), consisting of Three Billion Seven Hundred Forty Million Dollars ($3,740,000,000) under the Term Loan B Facility and Five Hundred Million Dollars ($500,000,000) under the Revolving Credit Facility, together with all interest, fees, indemnities, expenses, and other amounts constituting Obligations under and as defined in the Credit Agreement. Each Guarantor acknowledges that it has reviewed the terms and conditions of the Credit Agreement and each other Loan Document, and that it has had the opportunity to consult with legal counsel of its choosing in connection with the execution and delivery of this Agreement.
Section 2.02 — Guarantee Unconditional
The obligations of each Guarantor under this Article II are absolute and unconditional, irrespective of the value, genuineness, validity, regularity, or enforceability of any of the Guaranteed Obligations, the Credit Agreement, any other Loan Document, or any other agreement or instrument referred to herein or therein, or any substitution, release, impairment, or exchange of any collateral or other security for any of the Guaranteed Obligations, and, to the fullest extent permitted by applicable law, irrespective of any other circumstance whatsoever that might otherwise constitute a legal or equitable defense available to, or discharge of, a guarantor or surety. Without limiting the generality of the foregoing, the guarantee of each Guarantor shall not be released, discharged, or otherwise affected by:
(a) any extension, renewal, settlement, compromise, waiver, or release in respect of any obligation of any other Grantor under this Agreement, the Credit Agreement, any other Loan Document, or any other agreement, by operation of law or otherwise;
(b) any modification or amendment of or supplement to the Credit Agreement, any other Loan Document, or any other agreement;
(c) any release, impairment, non-perfection, or invalidity of any direct or indirect security for any Guaranteed Obligation;
(d) any change in the corporate existence, structure, or ownership of the Borrower, any other Grantor, or any other person obligated in respect of the Guaranteed Obligations, including any merger, consolidation, liquidation, dissolution, or reorganization thereof, or any change in the law, regulation, or rules applicable to the Borrower, any other Grantor, or any other such person;
(e) the existence of any claim, set-off, defense, or other right that the Borrower or any other Grantor may have at any time against any Secured Party, the Collateral Agent, or any other person, whether in connection with the Guaranteed Obligations or any unrelated transactions;
(f) any insolvency, bankruptcy, reorganization, arrangement, adjustment, composition, liquidation, or similar proceeding affecting the Borrower, any other Grantor, or any of their respective assets, or any resulting disallowance, release, or discharge of all or any portion of the Guaranteed Obligations;
(g) the adequacy or inadequacy of any other means the Collateral Agent or any Secured Party may have of obtaining payment of any of the Guaranteed Obligations;
(h) the addition, substitution, or release of any entity that is or may become a party to the Credit Agreement or any other Loan Document; or
(i) any other act or omission to act, delay of any kind by the Borrower, any other Grantor, the Collateral Agent, or any other Secured Party, or any other circumstance whatsoever that might, but for the provisions of this Section 2.02, constitute a legal or equitable discharge of the obligations of such Guarantor under this Article II.
Section 2.03 — Reinstatement
The guarantee of each Guarantor under this Article II shall continue to be effective, or shall be reinstated, as the case may be, if at any time any payment, or any part thereof, of any of the Guaranteed Obligations is rescinded or must otherwise be restored or returned by any Secured Party upon the insolvency, bankruptcy, dissolution, liquidation, or reorganization of the Borrower, any other Grantor, or any other person, or upon or as a result of the appointment of a receiver, intervenor, or conservator of, or trustee or similar officer for, the Borrower, any other Grantor, or any other person or any substantial part of its property, or otherwise, all as though such payment had not been made. If an Event of Default shall at any time have occurred and be continuing, and if any right of any Guarantor in respect of the discharge of the Guaranteed Obligations by reason of any payment made by such Guarantor, the Borrower, or any other person shall be reduced, impaired, or otherwise affected by any subsequent rescission, restoration, or return of such payment, the guarantee of such Guarantor shall, to the extent of any such reduction, impairment, or other effect, be reinstated and continue in full force and effect.
Section 2.04 — Subrogation
Each Guarantor hereby unconditionally and irrevocably agrees that, until the Guaranteed Obligations have been indefeasibly paid in full in cash (other than contingent indemnification and expense reimbursement obligations not yet due and payable) and all commitments under the Credit Agreement have been terminated:
(a) such Guarantor shall not exercise any right of subrogation, contribution, reimbursement, indemnity, or other similar right against the Borrower or any other Guarantor by reason of any payment or performance by such Guarantor under this Article II;
(b) such Guarantor shall not exercise any right of recourse against any Collateral or any other security for the Guaranteed Obligations that is or may be held by any Secured Party; and
(c) any indebtedness of the Borrower or any other Guarantor now or hereafter held by any Guarantor (including, without limitation, any intercompany debt) is hereby subordinated in right of payment to the Guaranteed Obligations, and such Guarantor agrees that, after the occurrence and during the continuance of an Event of Default, it shall not demand, accept, or take any action to collect any payment on account of such indebtedness without the prior written consent of the Collateral Agent.
If, notwithstanding the foregoing, any amount shall be paid to any Guarantor on account of such subrogation, contribution, reimbursement, or indemnity rights at any time prior to the indefeasible payment in full in cash of the Guaranteed Obligations, such amount shall be held in trust for the benefit of the Secured Parties and shall forthwith be paid to the Collateral Agent to be credited and applied to the Guaranteed Obligations, whether matured or unmatured, in such order as the Collateral Agent shall determine in its sole discretion.
Section 2.05 — Waivers
Each Guarantor hereby unconditionally and irrevocably waives, to the fullest extent permitted by applicable law:
(a) notice of acceptance of this guarantee and of the creation, renewal, extension, or accrual of any of the Guaranteed Obligations;
(b) presentment to and demand for payment or performance of any of the Guaranteed Obligations from any person, including the Borrower or any other Guarantor, and notice of any such presentment or demand;
(c) protest and notice of dishonor or default to any person, including the Borrower or any other Guarantor, with respect to any of the Guaranteed Obligations;
(d) any right to require the Collateral Agent or any other Secured Party to exhaust any remedy or proceed against the Borrower, any other Guarantor, or any other person, or to exhaust any remedy against any Collateral or any other security for the Guaranteed Obligations, before proceeding against such Guarantor;
(e) any defense based upon any right of the Collateral Agent or any Secured Party to proceed against any other person, or to proceed against or exhaust any Collateral or any other security, or to pursue any other remedy available to the Collateral Agent or any Secured Party, including without limitation any defense based on any anti-marshaling doctrine or impairment-of-collateral defense;
(f) any defense based on or arising out of any defense of the Borrower or any other Guarantor other than the indefeasible payment in full of the Guaranteed Obligations;
(g) the benefit of any statute of limitations affecting the enforcement of this guarantee or the liability of any Guarantor hereunder; and
(h) promptness, diligence, and any requirement that the Collateral Agent or any Secured Party protect, secure, perfect, or insure any security interest or lien on any Collateral or any property subject thereto.
Section 2.06 — Limitation on Guarantee
Notwithstanding anything to the contrary contained herein, the maximum liability of each Guarantor under this Article II shall be limited to the greatest amount that would not render such Guarantor's obligations hereunder voidable or unenforceable under applicable law relating to fraudulent transfer, fraudulent conveyance, or similar laws for the protection of creditors, including without limitation Section 548 of Title 11 of the United States Code (the "Bankruptcy Code"), the Uniform Fraudulent Transfer Act, the Uniform Voidable Transactions Act, and any comparable provisions of applicable state law (collectively, "Fraudulent Transfer Laws"). For purposes of determining the maximum guaranteed amount of each Guarantor, each Guarantor's liability under this guarantee shall be reduced by the aggregate amount of all payments made by such Guarantor pursuant to this guarantee that have not been restored pursuant to Section 2.03, and the assets and liabilities of each Guarantor shall be determined in accordance with the applicable provisions of the relevant Fraudulent Transfer Laws, giving effect to the right of contribution provided in this Section 2.06 and any other rights of contribution or subrogation that may exist among the Guarantors. Each Guarantor that makes a payment under this guarantee shall be entitled to contribution from each other Guarantor in an amount equal to such other Guarantor's pro rata share (based on the net worth of each Guarantor on the date hereof) of such payment, subject to the limitation on each Guarantor's maximum liability set forth in this Section 2.06.
Section 2.07 — Keepwell
Each Qualified ECP Guarantor hereby jointly and severally, absolutely, unconditionally, and irrevocably undertakes to provide such funds or other support as may be needed from time to time by each other Grantor that is not then a Qualified ECP Guarantor to honor all of such non-Qualified ECP Guarantor's obligations under this Agreement in respect of Swap Obligations (provided that each Qualified ECP Guarantor shall only be liable under this Section 2.07 for the maximum amount of such liability that can be hereby incurred without rendering its obligations under this Section 2.07, or otherwise under this Agreement, voidable under applicable Fraudulent Transfer Laws, and not for any greater amount). The obligations of each Qualified ECP Guarantor under this Section 2.07 shall remain in full force and effect until the Guaranteed Obligations shall have been indefeasibly paid in full in cash and all commitments under the Credit Agreement shall have been terminated. Each Qualified ECP Guarantor intends that this Section 2.07 constitute, and this Section 2.07 shall be deemed to constitute, a "keepwell, support, or other agreement" for the benefit of each non-Qualified ECP Guarantor for all purposes of Section 1a(18)(A)(v)(II) of the Commodity Exchange Act.
ARTICLE III — SECURITY INTERESTS / GRANT OF COLLATERAL
Section 3.01 — Grant of Security Interest
As security for the prompt and complete payment and performance of all Obligations, each Grantor hereby pledges, assigns, conveys, mortgages, and grants to the Collateral Agent, for the ratable benefit of the Secured Parties, a continuing first-priority security interest in and lien on all of such Grantor's right, title, and interest in, to, and under all of the following property, whether now owned or existing or hereafter acquired or arising and wherever located (collectively, the "Collateral"):
(a) Pledged Equity. All equity interests in subsidiaries and other persons owned by such Grantor, as more particularly described on Schedule II hereto, including all certificates, instruments, and agreements representing or evidencing such equity interests, all rights and privileges arising therefrom, and all dividends, distributions, return of capital, cash, instruments, and other property from time to time received, receivable, or otherwise distributed in respect of or in exchange for any or all thereof;
(b) Accounts and Receivables. All accounts (as defined in Article 9 of the UCC), including all accounts receivable, contract rights, and all rights to payment of a monetary obligation, whether or not earned by performance;
(c) Chattel Paper. All chattel paper (as defined in Article 9 of the UCC), whether tangible or electronic, including all records that evidence both a monetary obligation and a security interest in or a lease of specific goods;
(d) Deposit Accounts. All deposit accounts (as defined in Article 9 of the UCC), including all demand, time, savings, passbook, or similar accounts maintained with any bank, savings and loan association, credit union, or similar financial institution;
(e) Documents. All documents (as defined in Article 9 of the UCC), including all documents of title, bills of lading, dock warrants, dock receipts, warehouse receipts, and orders for the delivery of goods;
(f) Equipment. All equipment (as defined in Article 9 of the UCC), including all machinery, furniture, fixtures, vehicles, tools, dies, molds, and all parts, accessories, and accessions thereto and substitutions and replacements therefor;
(g) General Intangibles. All general intangibles (as defined in Article 9 of the UCC), including all payment intangibles, software, customer lists, goodwill, tax refund claims, rights and claims under insurance policies, rights under licenses and franchises, and any letter of credit, guarantee, claim, security interest, or other security held by or granted to such Grantor to secure payment by an account debtor of any of the accounts or chattel paper of such Grantor;
(h) Instruments. All instruments (as defined in Article 9 of the UCC), including all promissory notes, drafts, bills of exchange, and all intercompany notes and instruments;
(i) intellectual Property. All intellectual property of such Grantor, including (i) all patents, patent applications, and patent licenses (together with all reissues, divisions, continuations, continuations-in-part, extensions, and reexaminations thereof), (ii) all trademarks, service marks, trade names, trade dress, and all registrations, applications for registration, and renewals thereof, together with the goodwill of the business symbolized by such marks, (iii) all copyrights, including all registrations, applications for registration, and renewals thereof, (iv) all trade secrets, know-how, proprietary information, and confidential business information, (v) all internet domain names and social media accounts, and (vi) all licenses and sublicenses granted to or by such Grantor with respect to any of the foregoing;
(j) Inventory. All inventory (as defined in Article 9 of the UCC), including all raw materials, work in process, finished goods, goods held for sale or lease, and goods furnished under contracts of service;
(k) Investment Property. All investment property (as defined in Article 9 of the UCC), including all securities, security entitlements, securities accounts, commodity contracts, commodity accounts, and financial assets;
(l) Letter-of-Credit Rights. All letter-of-credit rights (as defined in Article 9 of the UCC), whether or not the applicable letter of credit is evidenced by a writing;
(m) Commercial Tort Claims. All commercial tort claims (as defined in Article 9 of the UCC) of such Grantor, whether now existing or hereafter arising, including without limitation those commercial tort claims identified on Schedule IV hereto;
(n) Books and Records. All books and records (including customer lists, files, correspondence, tapes, computer programs, computer storage media, and related data processing software) pertaining to any of the foregoing;
(o) Proceeds. All proceeds (as defined in Article 9 of the UCC), whether in the form of cash, non-cash, insurance proceeds, or condemnation awards, of any and all of the foregoing Collateral, including without limitation all proceeds of proceeds; and
(p) Supporting Obligations. All supporting obligations (as defined in Article 9 of the UCC) relating to any of the foregoing.
Section 3.02 — Excluded Assets
Notwithstanding the provisions of Section 3.01, the Collateral shall not include any of the following (collectively, the "Excluded Assets"):
(a) More than sixty-five percent (65%) of the issued and outstanding voting equity interests of any first-tier CFC (within the meaning of Section 957 of the Internal Revenue Code of 1986, as amended) or any subsidiary that is a FSHCO, in each case to the extent that the pledge of a greater percentage would result in material adverse tax consequences to the Borrower or any of its subsidiaries under Sections 956 or 1248 of the Internal Revenue Code of 1986, as amended (it being understood that one hundred percent (100%) of the non-voting equity interests, if any, and economic interests of such entities shall be pledged to the extent not otherwise excluded);
(b) Equity interests in any non-first-tier foreign subsidiary, including without limitation Cloudium Technologies India Pvt. Ltd. (a private limited company organized under the laws of Karnataka, India) and Cloudium Solutions GmbH (a GmbH organized under the laws of Germany, with its registered office in Berlin, Germany), to the extent such equity interests are held by an intermediate foreign holding company and not directly by a domestic Grantor;
(c) Any lease, license, contract, property right, or agreement to the extent that the grant of a security interest therein is prohibited by applicable law (other than to the extent that the relevant provision of the UCC or other applicable law renders such prohibition ineffective) or by the terms of such lease, license, contract, property right, or agreement (after giving effect to the applicable provisions of the UCC), including without limitation any third-party license agreement that by its terms prohibits assignment or the grant of a security interest;
(d) Any governmental license, permit, charter, franchise, or authorization issued by any governmental authority to the extent that the grant of a security interest therein is prohibited by the terms thereof or by applicable law;
(e) Any intent-to-use trademark application filed with the United States Patent and Trademark Office to the extent that the grant of a security interest therein prior to the filing of a "Statement of Use" or an "Amendment to Allege Use" with respect thereto would impair the validity or enforceability of such intent-to-use trademark application under Section 10 of the Lanham Act (15 U.S.C. § 1060);
(f) Any deposit account or securities account constituting a tax withholding account, payroll account, employee benefit plan account, escrow account (including, without limitation, the $544,000,000 indemnity escrow account held by Cobalt Trust Company in connection with the transactions contemplated by the Merger Agreement), or trust account required to be maintained pursuant to any applicable law, regulation, or order;
(g) Any asset to the extent that the cost of obtaining or perfecting a security interest therein is excessive in relation to the practical benefit afforded thereby to the Secured Parties, as reasonably determined by the Borrower and the Collateral Agent; and
(h) Any equity interest in any person to the extent that the pledge thereof would violate any applicable law or any contractual obligation (existing as of the date hereof or, in the case of after-acquired equity interests, existing at the time of acquisition and not entered into in contemplation of such acquisition) binding on such equity interest; provided that any such contractual restriction shall be disregarded to the extent rendered ineffective by the UCC or any other applicable law.
Notwithstanding the foregoing, the term "Excluded Assets" shall not include any proceeds, products, substitutions, or replacements of any Excluded Asset (unless such proceeds, products, substitutions, or replacements would independently constitute Excluded Assets).
Section 3.03 — Security Interest as Security Only
The security interests created and granted hereunder are granted as security only and shall not subject the Collateral Agent or any other Secured Party to, or in any way modify, any obligation or liability of any Grantor with respect to any of the Collateral or any transaction relating thereto. Neither the Collateral Agent nor any other Secured Party shall have any obligation or liability under any contract, lease, agreement, or other instrument included in the Collateral by reason of or arising out of this Agreement or the receipt by the Collateral Agent or any other Secured Party of any payment relating to any of the Collateral, nor shall the Collateral Agent or any other Secured Party be obligated in any manner to perform any of the obligations of any Grantor under or pursuant to any such contract, lease, agreement, or other instrument, to make any payment, to make any inquiry as to the nature or sufficiency of any payment received by it or as to the sufficiency of any performance by any party under any such contract, lease, agreement, or other instrument, 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 Collateral Agent or to which the Collateral Agent or any other Secured Party may be entitled at any time or times.
ARTICLE IV — REPRESENTATIONS AND WARRANTIES
Each Grantor hereby represents and warrants to the Collateral Agent and each other Secured Party, as of the date hereof, as follows:
Section 4.01 — Organization and Good Standing
Each Grantor is duly organized or incorporated, validly existing, and (to the extent such concept is applicable in its jurisdiction of organization) in good standing under the laws of its jurisdiction of organization, and has all requisite corporate, limited liability company, or other organizational power and authority to own and operate its properties and assets and to carry on its business as presently conducted. Without limiting the generality of the foregoing:
(a) The Borrower, Cloudium Technologies plc, is a public limited company duly incorporated and validly existing under the laws of England and Wales, registered with Companies House under Company No. 09734521, with its registered office at 45 Broadwick Street, London W1F 0DB, United Kingdom.
(b) Cloudium Technologies UK Ltd. is a private limited company duly incorporated and validly existing under the laws of England and Wales, registered with Companies House under Company No. 11287456, with its registered office at 45 Broadwick Street, London W1F 0DB, United Kingdom. Cloudium Technologies UK Ltd. is a direct wholly owned subsidiary of the Borrower and is a Guarantor hereunder.
(c) Cloudium Technologies India Pvt. Ltd. is a private limited company organized under the laws of Karnataka, India. Cloudium Technologies India Pvt. Ltd. is not a Guarantor hereunder and is referenced solely for purposes of corporate structure disclosure and to define the scope of the Pledged Equity. The representations and warranties herein are limited with respect to such entity.
(d) Cloudium Solutions GmbH is a Gesellschaft mit beschränkter Haftung (GmbH) organized under the laws of Germany, with its registered office in Berlin, Germany. Cloudium Solutions GmbH is not a Guarantor hereunder and is referenced solely for purposes of corporate structure disclosure and to define the scope of the Pledged Equity. The representations and warranties herein are limited with respect to such entity.
Section 4.02 — Authorization; No Contravention
The execution, delivery, and performance by each Grantor of this Agreement and the grant of security interests and guarantees contemplated hereunder have been duly authorized by all necessary corporate, limited liability company, partnership, or other organizational action on the part of such Grantor. No consent of any holder of equity interests in any Grantor is required that has not been obtained. The execution, delivery, and performance of this Agreement, and the consummation of the transactions contemplated hereby, do not and will not: (a) violate any provision of the certificate of incorporation, articles of association, by-laws, operating agreement, partnership agreement, or other organizational documents of any Grantor; (b) violate any applicable law, rule, regulation, judgment, order, or decree of any governmental authority; or (c) result in a breach of, or constitute a default under, or result in the creation of any lien (other than the liens created hereunder and Permitted Liens) upon any assets of any Grantor pursuant to, any indenture, mortgage, deed of trust, credit agreement, loan agreement, or other material agreement or instrument to which any Grantor is a party or by which any Grantor or its properties or assets may be bound or affected, including without limitation the Credit Agreement and the Merger Agreement.
Section 4.03 — Governmental Approvals; No Conflicts
No authorization, consent, approval, license, exemption of, or filing or registration with, any governmental authority, or approval or consent of any other person, is required for the due execution, delivery, or performance by any Grantor of this Agreement or for the grant by any Grantor of the security interests granted hereby or for the exercise by the Collateral Agent of its rights and remedies hereunder, except for (a) the filing of UCC financing statements in the appropriate filing offices, (b) filings required to be made with the United States Patent and Trademark Office and the United States Copyright Office in respect of the security interests in intellectual property, (c) such filings as may be required under the UK Companies Act 2006, Part 25 (Registration of Company Charges), with respect to any Grantor organized under the laws of England and Wales, and (d) such other filings, registrations, and recordings as are described in the Loan Documents, all of which shall have been made on or prior to the date hereof or will be made within the time periods required by applicable law. The execution, delivery, and performance of this Agreement and the consummation of the transactions contemplated hereby will not result in any conflict with, or constitute a default or event of default under, any material agreement, indenture, or instrument to which any Grantor is a party.
Section 4.04 — Enforceability
This Agreement constitutes a legal, valid, and binding obligation of each Grantor, enforceable against such Grantor in accordance with its terms, except as such enforceability may be limited by (a) applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance, or other similar laws relating to or affecting the enforcement of creditors' rights generally, (b) the effect of general principles of equity (whether considered in a proceeding in equity or at law), and (c) an implied covenant of good faith and fair dealing.
Section 4.05 — Ownership of Collateral; No Liens
Each Grantor is the legal and beneficial owner of all Collateral pledged by it hereunder, and has good and marketable title thereto (or, in the case of after-acquired Collateral, will have good and marketable title thereto at the time of acquisition), free and clear of all liens, security interests, claims, encumbrances, and other charges or restrictions of any kind, except for (a) the security interests created by this Agreement and the other Loan Documents, (b) Permitted Liens (as defined in the Credit Agreement), and (c) liens created by the Intercreditor Agreement. No effective financing statement, security agreement, or other instrument similar in effect covering all or any part of the Collateral is on file in any filing or recording office, except such as may have been filed (x) in connection with the security interests created by this Agreement and the other Loan Documents, (y) in connection with Permitted Liens, or (z) for which termination statements or releases have been delivered to the Collateral Agent for filing.
Section 4.06 — Equity Interests
The Pledged Equity listed on Schedule II hereto constitutes: (a) one hundred percent (100%) of the issued and outstanding equity interests of each domestic subsidiary of the Borrower that is a Guarantor, and (b) sixty-five percent (65%) of the issued and outstanding voting equity interests (and one hundred percent (100%) of the non-voting equity interests, if any) of each first-tier CFC subsidiary of the Borrower. All Pledged Equity has been duly authorized and validly issued and, to the extent applicable under the laws of the relevant jurisdiction, is fully paid and nonassessable (or, in the case of limited liability company interests or partnership interests, is not subject to any further capital call or similar obligation). No Grantor has granted, and there are no outstanding, options, warrants, conversion privileges, rights of first refusal, subscription rights, or other rights or agreements to purchase or acquire any equity interests in any Guarantor or any other subsidiary of the Borrower, except as described in the Credit Agreement or the Merger Agreement.
Section 4.07 — Locations; Names
Schedule III hereto sets forth, with respect to each Grantor as of the date hereof: (a) its exact legal name (as set forth in its certificate or articles of incorporation, certificate of formation, articles of association, or comparable organizational document), (b) any prior legal names used by such Grantor at any time during the five (5) years preceding the date hereof, (c) its jurisdiction of organization, (d) its organizational identification number (if any), (e) its federal tax identification number (employer identification number), and (f) the address of its chief executive office and principal place of business. The Borrower's EIN is 83-2196754. The EIN of Solara Digital Infrastructure Fund VI LP is 87-4523190.
Section 4.08 — Intellectual Property
Each Grantor owns or is validly licensed to use all material intellectual property necessary for the conduct of its business as currently conducted. Schedule V hereto sets forth a true and complete list of all registered patents, patent applications, registered trademarks, trademark applications, registered copyrights, copyright applications, and material internet domain names owned by each Grantor as of the date hereof, including without limitation all intellectual property related to the Borrower's SaaS platform technology, cloud-native enterprise resource planning (ERP) solutions, customer relationship management (CRM) software, and business-intelligence and analytics software assets. To the knowledge of each Grantor, none of the intellectual property owned by any Grantor infringes upon or misappropriates the intellectual property rights of any third party in any manner that would reasonably be expected to have a Material Adverse Effect (as defined in the Credit Agreement).
Section 4.09 — Commercial Tort Claims
All commercial tort claims of each Grantor having an amount in controversy exceeding Five Hundred Thousand Dollars ($500,000) as of the date hereof are described on Schedule IV hereto. No Grantor holds or has an interest in any commercial tort claim having an amount in controversy exceeding such threshold other than as set forth on Schedule IV.
Section 4.10 — Deposit Accounts and Securities Accounts
Schedule VI hereto sets forth a true and complete list of all deposit accounts and securities accounts of each Grantor as of the date hereof (other than deposit accounts and securities accounts constituting Excluded Assets), including the name of each financial institution at which such account is maintained, the type of account, the last four digits of the account number, and the purpose of such account.
ARTICLE V — COVENANTS
Each Grantor covenants and agrees with the Collateral Agent and the Secured Parties that, from and after the date hereof until the termination of this Agreement in accordance with Section 8.08:
Section 5.01 — Maintenance of Perfection
Each Grantor shall take all actions necessary and reasonably requested by the Collateral Agent to establish, maintain, protect, and preserve the perfection and first-priority status (subject to Permitted Liens) of the security interests granted herein in all of the Collateral, including without limitation:
(a) filing UCC financing statements (and continuation statements in respect thereof) in the appropriate filing offices in the relevant jurisdictions, and authorizing the Collateral Agent to file such financing statements (including amendments thereto and continuation statements thereof) in such offices as the Collateral Agent may determine to be necessary or desirable;
(b) delivering to the Collateral Agent (or its designee or bailee) all certificated securities, instruments (including promissory notes), and chattel paper constituting Collateral, together with appropriate endorsements, assignments, or stock/transfer powers executed in blank;
(c) entering into deposit account control agreements (in form and substance reasonably satisfactory to the Collateral Agent) with respect to each deposit account of each Grantor that constitutes Collateral (other than Excluded Assets), granting the Collateral Agent "control" (as defined in Section 9-104 of the UCC) over such deposit accounts;
(d) entering into securities account control agreements (in form and substance reasonably satisfactory to the Collateral Agent) with respect to each securities account of each Grantor that constitutes Collateral (other than Excluded Assets), granting the Collateral Agent "control" (as defined in Section 8-106 or Section 9-106 of the UCC) over such securities accounts;
(e) filing appropriate notices or assignments with the United States Patent and Trademark Office and the United States Copyright Office with respect to the security interests in registered intellectual property; and
(f) taking such other actions as the Collateral Agent may from time to time reasonably request to ensure that the security interests granted hereunder are and remain duly perfected and of first priority (subject to Permitted Liens).
Section 5.02 — Further Assurances
Each Grantor shall, promptly upon the request of the Collateral Agent, execute and deliver any and all further instruments, documents, financing statements, agreements, and other writings, and take any and all further actions, that may be required under applicable law, or that the Collateral Agent may reasonably request, in order to effectuate the transactions contemplated by this Agreement and to grant, preserve, protect, and perfect the validity and first priority of the security interests created or intended to be created hereby. Without limiting the generality of the foregoing, each Grantor shall cause each domestic subsidiary formed or acquired by the Borrower or any Guarantor after the date hereof (other than an Excluded Subsidiary, as defined in the Credit Agreement) to execute and deliver to the Collateral Agent a joinder agreement substantially in the form of Exhibit A hereto, together with:
(a) a supplement to this Agreement pursuant to which such subsidiary becomes a Guarantor hereunder and grants a security interest in its assets in accordance with Article III;
(b) certificates or other instruments representing the equity interests of such subsidiary, together with undated stock powers or transfer instruments executed in blank (to the extent such equity interests are certificated);
(c) UCC financing statements and such other filings, registrations, and recordings as the Collateral Agent may reasonably request; and
(d) such organizational documents, resolutions, legal opinions, and other documents as the Collateral Agent may reasonably request;
in each case, within sixty (60) days after the date of formation or acquisition of such domestic subsidiary (or such longer period as may be agreed to in writing by the Collateral Agent in its reasonable discretion).
Section 5.03 — Changes in Name, Location, or Structure
No Grantor shall (a) change its legal name, (b) change its jurisdiction of organization, (c) change its organizational identification number (or obtain an organizational identification number if it currently does not have one), or (d) change the location of its chief executive office, in each case without providing at least thirty (30) days' prior written notice to the Collateral Agent (or such shorter period as the Collateral Agent may agree in its discretion) and, prior to or concurrently with the effectiveness of any such change, taking all actions reasonably requested by the Collateral Agent to maintain the perfection and priority of the security interests granted hereunder, including without limitation the filing of appropriate amendments to UCC financing statements.
Section 5.04 — Dispositions of Collateral
No Grantor shall sell, transfer, lease, license (other than non-exclusive licenses granted in the ordinary course of business), assign, or otherwise dispose of any Collateral, or attempt or contract to do so, except as permitted under the Credit Agreement, including without limitation Permitted Dispositions and other dispositions expressly permitted by the baskets, exceptions, and other provisions set forth in the Credit Agreement. Any disposition of Collateral made in compliance with the Credit Agreement shall result in an automatic release of the security interest granted hereunder in such Collateral, and the Collateral Agent shall execute and deliver such instruments and take such actions as the Borrower may reasonably request (at the Borrower's sole expense) to evidence or confirm such release.
Section 5.05 — Intellectual Property Covenants
Each Grantor shall:
(a) maintain in full force and effect all registrations of material intellectual property owned by such Grantor, including by filing all necessary renewal applications, affidavits of use, and maintenance filings with the appropriate governmental authorities in a timely manner;
(b) promptly notify the Collateral Agent in writing of any new patent applications, trademark applications, copyright registrations, or domain name registrations filed or obtained by such Grantor after the date hereof, and update Schedule V accordingly;
(c) promptly execute and deliver to the Collateral Agent such supplemental patent security agreements, trademark security agreements, copyright security agreements, and other instruments and documents as the Collateral Agent may reasonably request to perfect the security interests granted hereunder in any after-acquired intellectual property; and
(d) take all commercially reasonable actions to protect, defend, and maintain its material intellectual property rights, including by prosecuting infringers and opposing adverse registrations to the extent commercially reasonable.
Section 5.06 — Intercompany Notes
All intercompany indebtedness owed by any Guarantor to the Borrower or by any Guarantor to any other Guarantor, to the extent such indebtedness exceeds One Million Dollars ($1,000,000) in the aggregate, shall be evidenced by intercompany promissory notes substantially in the form of Exhibit B hereto (or in such other form as the Collateral Agent may reasonably approve). Each such intercompany note shall be pledged to the Collateral Agent pursuant to this Agreement and shall be delivered to the Collateral Agent (or its designee) together with an allonge or endorsement executed in blank. Each Grantor shall promptly notify the Collateral Agent of the creation of any new intercompany indebtedness that exceeds such threshold and shall promptly execute and deliver evidence of such indebtedness in the form require