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Guarantee And Collateral Agreement

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Exhibit 10.2


EXECUTION COPY


Confidential materials omitted and filed separately with the Securities and Exchange Commission. Asterisks denote omissions.


GUARANTEE AND COLLATERAL AGREEMENT


dated as of


May 14, 2010,


among


IKARIA ACQUISITION INC.,


IKARIA, INC.,


the Subsidiaries of IKARIA, INC. from time to time party hereto,

and


CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH

as Collateral Agent


TABLE OF CONTENTS


Page


ARTICLE I


Definitions


SECTION 1.01.

Credit Agreement


1

SECTION 1.02.

Other Defined Terms


1


ARTICLE II


Guarantee


SECTION 2.01.

Guarantee


6

SECTION 2.02.

Guarantee of Payment


7

SECTION 2.03.

No Limitations, Etc.


7

SECTION 2.04.

Reinstatement


8

SECTION 2.05.

Agreement To Pay; Subrogation


8

SECTION 2.06.

Information


8


ARTICLE III


Pledge of Securities


SECTION 3.01.

Pledge


8

SECTION 3.02.

Delivery of the Pledged Collateral


9

SECTION 3.03.

Representations, Warranties and Covenants


10

SECTION 3.04.

Certification of Limited Liability Company Interests and Limited Partnership Interests


11

SECTION 3.05.

Registration in Nominee Name; Denominations


11

SECTION 3.06.

Voting Rights; Dividends and Interest, Etc.


11


ARTICLE IV


Security Interests in Personal Property


SECTION 4.01.

Security Interest


13

SECTION 4.02.

Representations and Warranties


15

SECTION 4.03.

Covenants


17

SECTION 4.04.

Other Actions


21

SECTION 4.05.

Covenants Regarding Patent, Trademark and Copyright Collateral


24


ARTICLE V


Remedies


SECTION 5.01.

Remedies upon Default


25

SECTION 5.02.

Application of Proceeds


27

SECTION 5.03.

Grant of License to Use Intellectual Property


28

SECTION 5.04.

Securities Act, Etc.


28


ARTICLE VI


Indemnity, Subrogation and Subordination


SECTION 6.01.

Indemnity and Subrogation


29

SECTION 6.02.

Contribution and Subrogation


29

SECTION 6.03.

Subordination


30


ARTICLE VII


Miscellaneous


SECTION 7.01.

Notices


30

SECTION 7.02.

Security Interest Absolute


30

SECTION 7.03.

Survival of Agreement


30

SECTION 7.04.

Binding Effect; Several Agreement


31

SECTION 7.05.

Successors and Assigns


31

SECTION 7.06.

Collateral Agent' s Fees and Expenses; Indemnification


31

SECTION 7.07.

Collateral Agent Appointed Attorney-in-Fact


32

SECTION 7.08.

Applicable Law


33

SECTION 7.09.

Waivers; Amendment


33

SECTION 7.10.

WAIVER OF JURY TRIAL


33

SECTION 7.11.

Severability


34

SECTION 7.12.

Counterparts


34

SECTION 7.13.

Headings


34

SECTION 7.14.

Jurisdiction; Consent to Service of Process


34

SECTION 7.15.

Termination or Release


35

SECTION 7.16.

Additional Subsidiaries


35

SECTION 7.17.

Right of Setoff


36


ii


Schedules


Schedule I

Subsidiary Guarantors

Schedule II

Equity Interests; Pledged Debt Securities

Schedule III

Intellectual Property


Exhibits


Exhibit A

Form of Supplement

Exhibit B

Form of Perfection Certificate


iii


GUARANTEE AND COLLATERAL AGREEMENT dated as of May 14, 2010 (this " Agreement" ), among IKARIA ACQUISITION INC., a Delaware corporation (the " Borrower" ), IKARIA, INC., a Delaware corporation (" Holdings" ), the Subsidiaries of Holdings from time to time party hereto and CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH (" CS" ), as collateral agent (in such capacity, the " Collateral Agent" ).


PRELIMINARY STATEMENT


Reference is made to the Credit Agreement dated as of May 14, 2010 (as amended, supplemented or otherwise modified from time to time, the " Credit Agreement" ), among the Borrower, Holdings, the lenders from time to time party thereto (the " Lenders" ) and CS, as administrative agent (in such capacity, the " Administrative Agent" ) and Collateral Agent.


The Lenders and the Issuing Bank (such term and each other capitalized term used but not defined in this preliminary statement having the meaning given or ascribed to it in Article I) have agreed to extend credit to the Borrower pursuant to, and upon the terms and conditions specified in, the Credit Agreement. The obligations of the Lenders and the Issuing Bank to extend credit to the Borrower are conditioned upon, among other things, the execution and delivery of this Agreement by the Borrower and each Guarantor. Each Guarantor is an affiliate of the Borrower, will derive substantial benefits from the extension of credit to the Borrower pursuant to the Credit Agreement and is willing to execute and deliver this Agreement in order to induce the Lenders and the Issuing Bank to extend such credit. Accordingly, the parties hereto agree as follows:


ARTICLE I Definitions SECTION 1.01. Credit Agreement. (a) Capitalized terms used in this Agreement and not otherwise defined herein have the meanings set forth in the Credit Agreement. All capitalized terms defined in the New York UCC (as such term is defined herein) and not defined in this Agreement have the meanings specified therein. All references to the Uniform Commercial Code shall mean the New York UCC. (b) The rules of construction specified in Section 1.02 of the Credit Agreement also apply to this Agreement. SECTION 1.02. Other Defined Terms . As used in this Agreement, the following terms have the meanings specified below: " Accounts Receivable" shall mean all Accounts and all right, title and interest in any returned goods, together with all rights, titles, securities and guarantees with respect thereto, including any rights to stoppage in transit, replevin, reclamation and


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resales, and all related security interests, liens and pledges, whether voluntary or involuntary, in each case whether now existing or owned or hereafter arising or acquired.


" Administrative Agent" shall have the meaning assigned to such term in the preliminary statement.


" Article 9 Collateral" shall have the meaning assigned to such term in Section 4.01.


" Borrower" shall have the meaning assigned to such term in the preamble.


" Cash Management Obligations" shall mean the due and punctual payment and performance of all obligations of the Grantors in respect of overdrafts and related liabilities and/or arising from cash management services (including treasury, depository, overdraft, credit, purchasing or debit card, electronic funds transfer, netting, ACH services and other cash management arrangements), in each case owed to a counterparty that is the Administrative Agent, a Lender or an Affiliate of the Administrative Agent or a Lender (in such capacity, a " Cash Management Provider" ).


" Cash Management Provider" shall have the meaning assigned to such term in the definition of the term " Cash Management Obligations" .


" Collateral" shall mean the Article 9 Collateral and the Pledged Collateral.


" Collateral Agent" shall have the meaning assigned to such term in the preamble.


" Copyright License" shall mean any written agreement, now or hereafter in effect, granting any right to any third person under any copyright now or hereafter owned by any Grantor or that such Grantor otherwise has the right to license, or granting any right to any Grantor under any copyright now or hereafter owned by any third person, and all rights of such Grantor under any such agreement.


" Copyrights" shall mean all of the following now owned or hereafter acquired by any Grantor: (a) all copyright rights in any work subject to the copyright laws of the United States or any other country, whether as author, assignee, transferee or otherwise, and (b) all registrations and applications for registration of any such copyright in the United States or any other country, including registrations, recordings, supplemental registrations and pending applications for registration in the United States Copyright Office (or any successor office or any similar office in any other country), including those listed on Schedule III.


" Credit Agreement" shall have the meaning assigned to such term in the preliminary statement.


" Excluded Assets" shall mean at any date any Assets of a Grantor which is subject to, or secured by, a Lien permitted by Section 6.02(c), (f), (g), (i) or (l) of the


2


Credit Agreement if and to the extent, and only so long as, the terms of the Indebtedness or obligations secured by such Lien prohibit, or require any consent or establish any other conditions for, an assignment thereof, or a grant of a security interest therein, by a Grantor; provided that all proceeds paid or payable to any Grantor from any sale, transfer or assignment or other voluntary or involuntary disposition of such Assets and all rights to receive such proceeds shall be included in the Collateral to the extent not otherwise required to be paid to the holder of such Capital Lease Obligation or other purchase money security interest secured by such Assets.


" Exempt Deposit Accounts" shall mean (i) Deposit Accounts the balance of which consists exclusively of (a) withheld income taxes and federal, state or local employment taxes in such amounts as are required in the reasonable judgment of the Borrower to be paid to the Internal Revenue Service or state or local government agencies within the following two months with respect to employees of any of the Loan Parties, and (b) amounts required to be paid over to an employee benefit plan pursuant to DOL Reg. Sec. 2510.3-102 on behalf of or for the benefit of employees of one or more Loan Parties, and (ii) all segregated Deposit Accounts constituting (and the balance of which consists solely of funds set aside in connection with) tax accounts, payroll accounts and trust accounts.


" Federal Securities Laws" shall have the meaning assigned to such term in Section 5.04.


" General Intangibles" shall mean all choses in action and causes of action and all other intangible personal property of any Grantor of every kind and nature (other than Accounts) now owned or hereafter acquired by any Grantor, including all rights and interests in partnerships, limited partnerships, limited liability companies and other unincorporated entities, corporate or other business records, indemnification claims, contract rights (including rights under leases, whether entered into as lessor or lessee, Hedging Agreements and other agreements), Intellectual Property, goodwill, registrations, franchises, tax refund claims and any letter of credit, guarantee, claim, security interest or other security held by or granted to any Grantor to secure payment by an Account Debtor of any of the Accounts.


" Grantors" shall mean the Borrower and the Guarantors.


" Guarantors" shall mean Holdings and the Subsidiary Guarantors.


" Holdings" has the meaning assigned to such term in the preamble.


" Intellectual Property" shall mean all intellectual and similar property of any Grantor of every kind and nature now owned or hereafter acquired by any Grantor, including inventions, designs, Patents, Copyrights, Licenses, Trademarks, trade secrets, confidential or proprietary technical and business information, know-how, show-how or other data or information, software and databases and all embodiments or fixations thereof and related documentation, registrations and franchises, and all additions,


3


improvements and accessions to, and books and records describing or used in connection with, any of the foregoing.


" License" shall mean any Patent License, Trademark License, Copyright License or other license or sublicense agreement relating to Intellectual Property to which any Grantor is a party, including those listed on Schedule III.


" Loan Document Obligations" shall mean (a) the due and punctual payment of (i) the principal of and interest (including interest accruing during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding) on the Loans, when and as due, whether at maturity, by acceleration, upon one or more dates set for prepayment or otherwise, (ii) each payment required to be made by the Borrower under the Credit Agreement in respect of any Letter of Credit (whether denominated in dollars or an Alternative Currency), when and as due, including payments in respect of reimbursement of disbursements, interest thereon and obligations to provide cash collateral, and (iii) all other monetary obligations of the Borrower to any of the Secured Parties under the Credit Agreement and each of the other Loan Documents, including fees, costs, expenses and indemnities, whether primary, secondary, direct, contingent, fixed or otherwise (including monetary obligations incurred during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding), (b) the due and punctual performance of all other obligations of the Borrower under or pursuant to the Credit Agreement and each of the other Loan Documents, and (c) the due and punctual payment and performance of all the obligations of each other Loan Party under or pursuant to this Agreement and each of the other Loan Documents.


" New York UCC" shall mean the Uniform Commercial Code as from time to time in effect in the State of New York.


" Obligations" shall mean (a) the Loan Document Obligations, (b) Cash Management Obligations not to exceed $20,000,000 in the aggregate at any time and (c) the due and punctual payment and performance of all obligations of each Loan Party under each Hedging Agreement that (i) is in effect on the Closing Date with a counterparty that is the Administrative Agent or a Lender or an Affiliate of the Administrative Agent or a Lender as of the Closing Date or (ii) is entered into after the Closing Date with any counterparty that is the Administrative Agent or a Lender or an Affiliate of the Administrative Agent or a Lender at the time such Hedging Agreement is entered into, in each case regardless of whether such counterparty thereafter ceases to be the Administrative Agent or a Lender or an Affiliate of the Administrative Agent or a Lender.


" Patent License" shall mean any written agreement, now or hereafter in effect, granting to any third person any right to make, use or sell any invention on which a patent, now or hereafter owned by any Grantor or that any Grantor otherwise has the right to license, is in existence, or granting to any Grantor any right to make, use or sell


4


any invention on which a patent, now or hereafter owned by any third person, is in existence, and all rights of any Grantor under any such agreement.


" Patents" shall mean all of the following now owned or hereafter acquired by any Grantor: (a) all letters patent of the United States or the equivalent thereof in any other country, all registrations and recordings thereof, and all applications for letters patent of the United States or the equivalent thereof in any other country, including registrations, recordings and pending applications in the United States Patent and Trademark Office (or any successor or any similar offices in any other country), including those listed on Schedule III, and (b) all reissues, continuations, divisions, continuations-in-part, renewals or extensions thereof, and the inventions disclosed or claimed therein, including the right to make, use and/or sell the inventions disclosed or claimed therein.


" Perfection Certificate" shall mean a certificate substantially in the form of Exhibit B, completed and supplemented with the schedules and attachments contemplated thereby, and duly executed by a Responsible Officer of the Borrower.


" Pledged Collateral" shall have the meaning assigned to such term in Section 3.01.


" Pledged Debt Securities" shall have the meaning assigned to such term in Section 3.01.


" Pledged Securities" shall mean any promissory notes, stock certificates or other securities now or hereafter included in the Pledged Collateral, including all certificates, instruments or other documents representing or evidencing any Pledged Collateral.


" Pledged Stock" shall have the meaning assigned to such term in Section 3.01.


" Secured Parties" shall mean (a) the Lenders, (b) the Administrative Agent, (c) the Collateral Agent, (d) any Issuing Bank, (e) each counterparty to any Hedging Agreement with a Loan Party that either (i) is in effect on the Closing Date if such counterparty is the Administrative Agent or a Lender or an Affiliate of the Administrative Agent or a Lender as of the Closing Date or (ii) is entered into after the Closing Date if such counterparty is the Administrative Agent or a Lender or an Affiliate of the Administrative Agent or a Lender at the time such Hedging Agreement is entered into, in each case regardless of whether such counterparty thereafter ceases to be the Administrative Agent or a Lender or an Affiliate of the Administrative Agent or a Lender, (f) each Cash Management Provider, (g) the beneficiaries of each indemnification obligation undertaken by any Loan Party under any Loan Document and (h) the successors and assigns of each of the foregoing.


" Security Interest" shall have the meaning assigned to such term in Section 4.01.


5


" Subsidiary Guarantor" shall mean (a) the Subsidiaries identified on Schedule I hereto as Subsidiary Guarantors and (b) each other Subsidiary that becomes a party to this Agreement as a Subsidiary Guarantor after the Closing Date.


" Trademark License" shall mean any written agreement, now or hereafter in effect, granting to any third person any right to use any trademark now or hereafter owned by any Grantor or that any Grantor otherwise has the right to license, or granting to any Grantor any right to use any trademark now or hereafter owned by any third person, and all rights of any Grantor under any such agreement.


" Trademarks" shall mean all of the following now owned or hereafter acquired by any Grantor: (a) all trademarks, service marks, trade names, corporate names, company names, business names, fictitious business names, trade styles, trade dress, logos, other source or business identifiers, designs and general intangibles of like nature, now existing or hereafter adopted or acquired, all registrations and recordings thereof, and all registration and recording applications filed in connection therewith, including registrations and registration applications in the United States Patent and Trademark Office (or any successor office) or any similar offices in any State of the United States or any other country or any political subdivision thereof, and all extensions or renewals thereof, including those listed on Schedule III, (b) all goodwill associated therewith or symbolized thereby and (c) all other assets, rights and interests that uniquely reflect or embody such goodwill, but excluding in all cases any intent-to-use United States trademark application for which an amendment to allege use or statement of use has not been filed under 15 U.S.C a7 1051(c) or 15 U.S.C a7 1051(d), respectively, or, if filed, has not been deemed in conformance with 15 U.S.C a7 1051(a) or examined and accepted, respectively, by the United States Patent and Trademark Office.


" Unfunded Advances/Participations" shall mean (a) with respect to the Administrative Agent, the aggregate amount, if any (i) made available to the Borrower on the assumption that each Lender has made its portion of the applicable Borrowing available to the Administrative Agent as contemplated by Section 2.02(d) of the Credit Agreement and (ii) with respect to which a corresponding amount shall not in fact have been returned to the Administrative Agent by the Borrower or made available to the Administrative Agent by any such Lender and (b) with respect to any Issuing Bank, the aggregate amount, if any, of participations in respect of any outstanding L/C Disbursement that shall not have been funded by the Revolving Credit Lenders in accordance with Sections 2.22(d) and 2.02(f) of the Credit Agreement.


ARTICLE II Guarantee SECTION 2.01. Guarantee. Each Guarantor unconditionally guarantees, jointly with the other Guarantors and severally, as a primary obligor and not merely as a surety, the due and punctual payment and performance of the Obligations. Each

6


Guarantor further agrees that the Obligations may be extended or renewed, in whole or in part, without notice to or further assent from it, and that it will remain bound upon its guarantee notwithstanding any extension or renewal of any Obligation. Each Guarantor waives presentment to, demand of payment from and protest to the Borrower or any other Loan Party of any Obligation, and also waives notice of acceptance of its guarantee and notice of protest for nonpayment. SECTION 2.02. Guarantee of Payment. Each Guarantor further agrees that its guarantee hereunder constitutes a guarantee of payment when due and not of collection, and waives any right to require that any resort be had by the Collateral Agent or any other Secured Party to any security held for the payment of the Obligations or to any balance of any Deposit Account or credit on the books of the Collateral Agent or any other Secured Party in favor of the Borrower or any other person. SECTION 2.03. No Limitations, Etc. (a) Except for termination of a Guarantor' s obligations hereunder as expressly provided in Section 7.15, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense or setoff, counterclaim, recoupment or termination whatsoever by reason of the invalidity, illegality or unenforceability of the Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor hereunder shall not be discharged or impaired or otherwise affected by (i) the failure of the Collateral Agent or any other Secured Party to assert any claim or demand or to enforce any right or remedy under the provisions of any Loan Document or otherwise, (ii) any rescission, waiver, amendment or modification of, or any release from any of the terms or provisions of, any Loan Document or any other agreement, including with respect to any other Guarantor under this Agreement, (iii) the release of, or any impairment of or failure to perfect any Lien on or security interest in, any security held by the Collateral Agent or any other Secured Party for the Obligations or any of them, (iv) any default, failure or delay, willful or otherwise, in the performance of the Obligations, or (v) any other act or omission that may or might in any manner or to any extent vary the risk of any Guarantor or otherwise operate as a discharge of any Guarantor as a matter of law or equity (other than the indefeasible payment in full in cash of all the Obligations). Each Guarantor expressly authorizes the Collateral Agent to take and hold security for the payment and performance of the Obligations, to exchange, waive or release any or all such security (with or without consideration), to enforce or apply such security and direct the order and manner of any sale thereof in its sole discretion or to release or substitute any one or more other guarantors or obligors upon or in respect of the Obligations, all without affecting the obligations of any Guarantor hereunder. (b) To the fullest extent permitted by applicable law, each Guarantor waives any defense based on or arising out of any defense of the Borrower or any other Loan Party or the unenforceability of the Obligations or any part thereof from any cause, or the cessation from any cause of the liability of the Borrower or any other Loan Party, other than the indefeasible payment in full in cash of all the Obligations. The Collateral Agent and the other Secured Parties may, at their election, foreclose on any security held

7


by one or more of them by one or more judicial or nonjudicial sales, accept an assignment of any such security in lieu of foreclosure, compromise or adjust any part of the Obligations, make any other accommodation with the Borrower or any other Loan Party or exercise any other right or remedy available to them against the Borrower or any other Loan Party, without affecting or impairing in any way the liability of any Guarantor hereunder except to the extent the Obligations have been fully and indefeasibly paid in full in cash. To the fullest extent permitted by applicable law, each Guarantor waives any defense arising out of any such election even though such election operates, pursuant to applicable law, to impair or to extinguish any right of reimbursement or subrogation or other right or remedy of such Guarantor against the Borrower or any other Loan Party, as the case may be, or any security. SECTION 2.04. Reinstatement. Each Guarantor agrees that its guarantee hereunder shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of any Obligation is rescinded or must otherwise be restored by the Collateral Agent or any other Secured Party upon the bankruptcy or reorganization of the Borrower, any other Loan Party or otherwise. SECTION 2.05. Agreement To Pay; Subrogation. In furtherance of the foregoing and not in limitation of any other right that the Collateral Agent or any other Secured Party has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Borrower or any other Loan Party to pay any Obligation when and as the same shall become due, whether at maturity, by acceleration, after notice of prepayment or otherwise, each Guarantor hereby promises to and will forthwith pay, or cause to be paid, to the Collateral Agent for distribution to the applicable Secured Parties in cash the amount of such unpaid Obligation. Upon payment by any Guarantor of any sums to the Collateral Agent as provided above, all rights of such Guarantor against the Borrower or any other Guarantor arising as a result thereof by way of right of subrogation, contribution, reimbursement, indemnity or otherwise shall in all respects be subject to Article VI. SECTION 2.06. Information. Each Guarantor assumes all responsibility for being and keeping itself informed of the Borrower' s and each other Loan Party' s financial condition and assets and of all other circumstances bearing upon the risk of nonpayment of the Obligations and the nature, scope and extent of the risks that such Guarantor assumes and incurs hereunder, and agrees that neither the Collateral Agent nor any other Secured Party will have any duty to advise such Guarantor of information known to it or any of them regarding such circumstances or risks. ARTICLE III Pledge of Securities SECTION 3.01. Pledge. As security for the payment or performance, as the case may be, in full of the Obligations, each Grantor hereby assigns and pledges to the Collateral Agent, its successors and assigns, for the ratable benefit of the Secured Parties, and h
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