exv10w10



 






Exhibit 10.10



 





GUARANTEE AND COLLATERAL AGREEMENT




made by




SUPERIOR OFFSHORE INTERNATIONAL, L.L.C.




in favor of




WILMINGTON TRUST COMPANY,




as Collateral Agent




Dated as of February 27, 2007



 











 





TABLE OF CONTENTS




	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	 
	 	 	 	 	 	 
	SECTION 1.
	 	DEFINED TERMS	 	 	1	 
	1.1
	 	Definitions	 	 	1	 
	1.2
	 	Other Definitional Provisions	 	 	4	 
	 
	 	 	 	 	 	 
	SECTION 2.
	 	GUARANTEE	 	 	4	 
	2.1
	 	Guarantee	 	 	4	 
	2.2
	 	Right of Contribution	 	 	5	 
	2.3
	 	No Subrogation	 	 	5	 
	2.4
	 	Amendments, etc. with respect to the Borrower Obligations	 	 	5	 
	2.5
	 	Guarantee Absolute and Unconditional	 	 	6	 
	2.6
	 	Reinstatement	 	 	6	 
	2.7
	 	Payments	 	 	6	 
	 
	 	 	 	 	 	 
	SECTION 3.
	 	GRANT OF SECURITY INTEREST	 	 	6	 
	 
	 	 	 	 	 	 
	SECTION 4.
	 	REPRESENTATIONS AND WARRANTIES	 	 	8	 
	4.1
	 	Title; No Other Liens	 	 	8	 
	4.2
	 	Perfected First Priority Liens	 	 	8	 
	4.3
	 	Jurisdiction of Organization; Chief Executive Office	 	 	8	 
	4.4
	 	RESERVED	 	 	8	 
	4.5
	 	Farm Products	 	 	8	 
	4.6
	 	Investment Property	 	 	8	 
	4.7
	 	Receivables	 	 	9	 
	4.8
	 	Intellectual Property	 	 	9	 
	4.9
	 	Commercial Tort Claims	 	 	9	 
	 
	 	 	 	 	 	 
	SECTION 5.
	 	COVENANTS	 	 	10	 
	5.1
	 	Delivery of Instruments, Certificated Securities and Chattel Paper	 	 	10	 
	5.2
	 	Maintenance of Insurance	 	 	10	 
	5.3
	 	RESERVED	 	 	10	 
	5.4
	 	Maintenance of Perfected Security Interest; Further Documentation	 	 	10	 
	5.5
	 	Changes in Name, etc	 	 	11	 
	5.6
	 	RESERVED	 	 	11	 
	5.7
	 	Investment Property	 	 	11	 
	5.8
	 	Receivables	 	 	12	 
	5.9
	 	Intellectual Property	 	 	12	 
	5.10
	 	Commercial Tort Claims	 	 	13	 
	5.11
	 	Foreign Assets	 	 	13	 
	 
	 	 	 	 	 	 
	SECTION 6.
	 	REMEDIAL PROVISIONS	 	 	13	 
	6.1
	 	Certain Matters Relating to Receivables	 	 	13	 
	6.2
	 	Communications with Obligors; Grantors Remain Liable	 	 	14	 
	6.3
	 	Pledged Stock	 	 	14	 
	6.4
	 	Proceeds to be Turned Over To Collateral Agent	 	 	15	 
	6.5
	 	Application of Proceeds	 	 	15	 
	6.6
	 	Code and Other Remedies	 	 	16	 
	6.7
	 	Registration Rights	 	 	17	 




i








 





	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	6.8
	 	Subordination	 	 	17	 
	6.9
	 	Deficiency	 	 	18	 
	 
	 	 	 	 	 	 
	SECTION 7.
	 	THE COLLATERAL AGENT	 	 	18	 
	7.1
	 	Collateral Agent’s Appointment as Attorney-in-Fact, etc	 	 	18	 
	7.2
	 	Duty of Collateral Agent	 	 	19	 
	7.3
	 	Execution of Financing Statements	 	 	19	 
	7.4
	 	Authority of Collateral Agent	 	 	20	 
	 
	 	 	 	 	 	 
	SECTION 8.
	 	MISCELLANEOUS	 	 	20	 
	8.1
	 	Amendments in Writing	 	 	20	 
	8.2
	 	Notices	 	 	20	 
	8.3
	 	No Waiver by Course of Conduct; Cumulative Remedies	 	 	20	 
	8.4
	 	Enforcement Expenses; Indemnification	 	 	20	 
	8.5
	 	Successors and Assigns	 	 	21	 
	8.6
	 	Set-Off	 	 	21	 
	8.7
	 	Counterparts	 	 	21	 
	8.8
	 	Severability	 	 	21	 
	8.9
	 	Section Headings	 	 	21	 
	8.10
	 	Integration	 	 	21	 
	8.11
	 	GOVERNING LAW	 	 	22	 
	8.12
	 	Submission To Jurisdiction; Waivers	 	 	22	 
	8.13
	 	Acknowledgements	 	 	22	 
	8.14
	 	Additional Grantors	 	 	22	 
	8.15
	 	Releases	 	 	23	 
	8.16
	 	WAIVER OF JURY TRIAL	 	 	23	 
	8.17
	 	Authority Subject to Credit Agreement	 	 	23	 
	8.18
	 	Intercreditor Agreement Governs	 	 	23	 
	 
	 	 	 	 	 	 
	SCHEDULES
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	Schedule 1
	 	Notice Addresses	 	 	 	 
	Schedule 2
	 	Investment Property	 	 	 	 
	Schedule 3
	 	Perfection Matters	 	 	 	 
	Schedule 4
	 	Jurisdictions of Organization and Chief Executive Offices	 	 	 	 
	Schedule 5
	 	Intellectual Property	 	 	 	 




ii








 



 


GUARANTEE AND COLLATERAL AGREEMENT




          GUARANTEE AND COLLATERAL AGREEMENT, dated as of February 27, 2007, made by each of the
signatories hereto (together with any other entity that may become a party hereto as provided
herein, the “Grantors”), in favor of WILMINGTON TRUST COMPANY, as Collateral Agent (in such
capacity, together with its successors and assigns, the “Collateral Agent”) for the banks
and other financial institutions or entities (the “Lenders”) from time to time parties to
the Credit Agreement, dated as of February 27, 2007 (as amended, supplemented or otherwise modified
from time to time, the “Credit Agreement”), among SUPERIOR OFFSHORE INTERNATIONAL, L.L.C.,
a Louisiana limited liability company (the “Borrower”), the Lenders, JPMorgan Chase Bank,
N.A., as Administrative Agent (the “Administrative Agent”), and the Collateral Agent.




W I T N E S S E T H:




          WHEREAS, pursuant to the Credit Agreement, the Lenders have severally agreed to make
extensions of credit to the Borrower upon the terms and subject to the conditions set forth
therein; and




          WHEREAS, it is a condition precedent to the obligation of the Lenders to make their respective
extensions of credit to the Borrower under the Credit Agreement that the Grantors shall have
executed and delivered this Agreement to the Administrative Agent for its benefit and for the
benefit of the other Secured Parties;




          NOW, THEREFORE, in consideration of the premises and to induce the Collateral Agent, the
Administrative Agent and the Lenders to enter into the Credit Agreement and to induce the Lenders
to make their respective extensions of credit to the Borrower thereunder, each Grantor hereby
agrees with the Collateral Agent, for its benefit and for the benefit of the other Secured Parties,
as follows:




SECTION 1. DEFINED TERMS




     1.1 Definitions. (a) Unless otherwise defined herein, terms defined in the Credit
Agreement and used herein shall have the meanings given to them in the Credit Agreement, and the
following terms are used herein as defined in the New York UCC: Accounts, Certificated Security,
Chattel Paper, Commercial Tort Claims, Documents, Equipment, Farm Products, General Intangibles,
Instruments, Inventory, Letter-of-Credit Rights and Supporting Obligations.



     (b) The following terms shall have the following meanings:



          “Agreement”: this Guarantee and Collateral Agreement, as the same may be amended,
supplemented or otherwise modified from time to time.




          “Borrower Obligations”: the collective reference to the unpaid principal of and
interest on the Loans and all other obligations and liabilities of the Borrower (including, without
limitation, interest accruing at the then applicable rate provided in the Credit Agreement after
the maturity of the Loans and interest accruing at the then applicable rate provided in the Credit
Agreement after the filing of any petition in bankruptcy, or the commencement of any insolvency,
reorganization or like proceeding,relating to the Borrower, whether or not a claim for post-filing or post-petition interest is
allowed in such proceeding) to the Collateral Agent, the Administrative Agent or any Lender,
whether direct or indirect,




Signature Page to Guarantee and Collateral Agreement










 



2






absolute or contingent, due or to become due, or now existing or
hereafter incurred, which may arise under, out of, or in connection with, the Credit Agreement,
this Agreement, the other Loan Documents or any other document made, delivered or given in
connection with any of the foregoing, in each case whether on account of principal, interest,
reimbursement obligations, fees, indemnities, costs, expenses or otherwise (including, without
limitation, all fees and disbursements of counsel to the Collateral Agent, to the Administrative
Agent or to the Lenders that are required to be paid by the Borrower pursuant to the terms of any
of the foregoing agreements).




          “Collateral”: as defined in Section 3.




          “Collateral Account”: any collateral account established by the Collateral Agent as
provided in Section 6.1 or 6.4.




          “Copyrights”: (i) all copyrights arising under the laws of the United States, any
other country or any political subdivision thereof, whether registered or unregistered and whether
published or unpublished (including, without limitation, those listed in Schedule 6), all
registrations and recordings thereof, and all applications in connection therewith, including,
without limitation, all registrations, recordings and applications in the United States Copyright
Office, and (ii) the right to obtain all renewals thereof.




          “Copyright Licenses”: any written agreement naming any Grantor as licensor or
licensee (including, without limitation, those listed in Schedule 6), granting any right under any
Copyright, including, without limitation, the grant of rights to manufacture, distribute, exploit
and sell materials derived from any Copyright.




          “Deposit Account”: as defined in the Uniform Commercial Code of any applicable
jurisdiction and, in any event, including, without limitation, any demand, time, savings, passbook
or like account maintained with a depositary institution.




          “Foreign Subsidiary”: any Subsidiary organized under the laws of any jurisdiction
outside the United States of America.




          “Foreign Subsidiary Voting Stock”: the voting Capital Stock of any Foreign
Subsidiary.




          “Guarantor Obligations”: with respect to any Guarantor, all obligations and
liabilities of such Guarantor which may arise under or in connection with this Agreement
(including, without limitation, Section 2) or any other Loan Document to which such Guarantor is a
party, in each case whether on account of guarantee obligations, reimbursement obligations, fees,
indemnities, costs, expenses or otherwise (including, without limitation, all fees and
disbursements of counsel to the Administrative Agent, to the Collateral Agent or to the Lenders
that are required to be paid by such Guarantor pursuant to the terms of this Agreement or any other
Loan Document).




          “Guarantors”: the collective reference to each Grantor other than the Borrower.




          “Intellectual Property”: the collective reference to all rights, priorities and
privileges relating to intellectual property, whether arising under United States, multinational or
foreign laws or otherwise, including, without limitation, the Copyrights, the Copyright Licenses,
the Patents, the Patent Licenses, the Trademarks and the Trademark Licenses, and all rights to sue
at law or in equity for any infringement or other impairment thereof, including the right to receive all proceeds and
damages therefrom.










 



3




          “Intercompany Note”: any promissory note evidencing loans made by any Grantor to
Holdings or any of its Subsidiaries.




          “Investment Property”: the collective reference to (i) all “investment property” as
such term is defined in Section 9-102(a)(49) of the New York UCC (other than any Foreign Subsidiary
Voting Stock excluded from the definition of “Pledged Stock”) and (ii) whether or not constituting
“investment property” as so defined, all Pledged Notes and all Pledged Stock.




          “Issuers”: the collective reference to each issuer of any Investment Property.




          “New York UCC”: the Uniform Commercial Code as from time to time in effect in the
State of New York.




          “Obligations”: (i) in the case of the Borrower, the Borrower Obligations, and (ii) in
the case of each Guarantor, its Guarantor Obligations.




          “Patents”: (i) all letters patent of the United States, any other country or any
political subdivision thereof, all reissues and extensions thereof and all goodwill associated
therewith, including, without limitation, any of the foregoing referred to in Schedule 6,
(ii) all applications for letters patent of the United States or any other country and all
divisions, continuations and continuations-in-part thereof, including, without limitation, any of
the foregoing referred to in Schedule 6, and (iii) all rights to obtain any reissues or
extensions of the foregoing.




          “Patent License”: all agreements, whether written or oral, providing for the grant by
or to any Grantor of any right to manufacture, use or sell any invention covered in whole or in
part by a Patent, including, without limitation, any of the foregoing referred to in Schedule
6.




          “Pledged Notes”: all promissory notes listed on Schedule 2, all Intercompany
Notes at any time issued to any Grantor and all other promissory notes issued to or held by any
Grantor (other than promissory notes issued in connection with extensions of trade credit by any
Grantor in the ordinary course of business).




          “Pledged Stock”: the shares of Capital Stock listed on Schedule 2, together
with any other shares, stock certificates, options, interests or rights of any nature whatsoever in
respect of the Capital Stock of any Person that may be issued or granted to, or held by, any
Grantor while this Agreement is in effect; provided that in no event shall more than 66% of
the total outstanding Foreign Subsidiary Voting Stock of any Foreign Subsidiary be required to be
pledged (or be pledged) hereunder.




          “Proceeds”: all “proceeds” as such term is defined in Section 9-102(a)(64) of the New
York UCC and, in any event, shall include, without limitation, all dividends or other income from
the Investment Property, collections thereon or distributions or payments with respect thereto.




          “Receivable”: any right to payment for goods sold or leased or for services rendered,
whether or not such right is evidenced by an Instrument or Chattel Paper and whether or not it has
been earned by performance (including, without limitation, any Account).




          “Secured Parties”: the collective reference to the Collateral Agent, the
Administrative Agent, the Lenders and any affiliate of any Lender to which Borrower Obligations or
Guarantor Obligations, as applicable, are owed.




          “Securities Act”: the Securities Act of 1933, as amended.










 



4




          “Trademarks”: (i) all trademarks, trade names, corporate names, company names,
business names, fictitious business names, trade styles, service marks, logos and other source or
business identifiers, and all goodwill associated therewith, now existing or hereafter adopted or
acquired, all registrations and recordings thereof, and all applications in connection therewith,
whether in the United States Patent and Trademark Office or in any similar office or agency of the
United States, any State thereof or any other country or any political subdivision thereof, or
otherwise, and all common-law rights related thereto, including, without limitation, any of the
foregoing referred to in Schedule 6, and (ii) the right to obtain all renewals thereof.




          “Trademark License”: any agreement, whether written or oral, providing for the grant
by or to any Grantor of any right to use any Trademark, including, without limitation, any of the
foregoing referred to in Schedule 6.




     1.2 Other Definitional Provisions. (a) The words “hereof,” “herein”, “hereto” and
“hereunder” and words of similar import when used in this Agreement shall refer to this Agreement
as a whole and not to any particular provision of this Agreement, and Section and Schedule
references are to this Agreement unless otherwise specified.



     (b) The meanings given to terms defined herein shall be equally applicable to both the
singular and plural forms of such terms.



     (c) Where the context requires, terms relating to the Collateral or any part thereof, when
used in relation to a Grantor, shall refer to such Grantor’s Collateral or the relevant part
thereof.



SECTION 2. GUARANTEE




     2.1 Guarantee. (a) Each of the Guarantors hereby, jointly and severally,
unconditionally and irrevocably, guarantees to the Collateral Agent, for its benefit and for the
benefit of the other Secured Parties and their respective successors and assigns, the prompt and
complete payment and performance by the Borrower when due (whether at the stated maturity, by
acceleration or otherwise) of the Borrower Obligations.



     (b) Anything herein or in any other Loan Document to the contrary notwithstanding, the maximum
liability of each Guarantor hereunder and under the other Loan Documents shall in no event exceed
the amount which can be guaranteed by such Guarantor under applicable federal and state laws
relating to fraudulent transfers or conveyances or the insolvency of debtors (after giving effect
to the right of contribution established in Section 2.2).



     (c) Each Guarantor agrees that the Borrower Obligations may at any time and from time to time
exceed the amount of the liability of such Guarantor hereunder without impairing the guarantee
contained in this Section 2 or affecting the rights and remedies of the Collateral Agent, the
Administrative Agent or any Lender hereunder.



     (d) The guarantee contained in this Section 2 shall remain in full force and effect until this
Agreement terminates pursuant to Section 8.15, notwithstanding that from time to time during the
term of the Credit Agreement the Borrower may be free from any Borrower Obligations.



     (e) No payment made by the Borrower, any of the Guarantors, any other guarantor or any other
Person or received or collected by the Collateral Agent, the Administrative Agent or any Lender
from the Borrower, any of the Guarantors, any other guarantor or any other Person by virtue of any
action or proceeding or any set-off or appropriation or application at any time or from time to
time in reduction









 



5

of or in payment of the Borrower Obligations shall be deemed to modify, reduce,
release or otherwise affect the liability of any Guarantor hereunder which shall, notwithstanding
any such payment (other than any payment made by such Guarantor in respect of the Borrower
Obligations or any payment received or collected from such Guarantor in respect of the Borrower
Obligations), remain liable for the Borrower Obligations up to the maximum liability of such
Guarantor hereunder until this Agreement terminates pursuant to Section 8.15.




     2.2 Right of Contribution. Each Guarantor hereby agrees that to the extent that a
Guarantor shall have paid more than its proportionate share of any payment made hereunder, such
Guarantor shall be entitled to seek and receive contribution from and against any other Guarantor
hereunder which has not paid its proportionate share of such payment. Each Guarantor’s right of
contribution shall be subject to the terms and conditions of Section 2.3. The provisions of this
Section 2.2 shall in no respect limit the obligations and liabilities of any Guarantor to the
Administrative Agent, the Collateral Agent and the Lenders, and each Subsidiary Guarantor shall
remain liable to the Administrative Agent, the Collateral Agent and the Lenders for the full amount
guaranteed by such Guarantor hereunder.



     2.3 No Subrogation. Notwithstanding any payment made by any Guarantor hereunder or
any set-off or application of funds of any Guarantor by the Administrative Agent, the Collateral
Agent or any Lender, no Guarantor shall be entitled to be subrogated to any of the rights of the
Administrative Agent, the Collateral Agent or any Lender against the Borrower or any other
Guarantor or any collateral security or guarantee or right of offset held by the Administrative
Agent, the Collateral Agent or any Lender for the payment of the Borrower Obligations, nor shall
any Guarantor seek or be entitled to seek any contribution or reimbursement from the Borrower or
any other Guarantor in respect of payments made by such Guarantor hereunder, until this Agreement
terminates pursuant to Section 8.15. If any amount shall be paid to any Guarantor on account of
such subrogation rights at any time prior to termination of this Agreement pursuant to Section
8.15, such amount shall be held by such Guarantor in trust for the Administrative Agent, the
Collateral Agent and the Lenders, segregated from other funds of such Guarantor, and shall,
forthwith upon receipt by such Guarantor, be turned over to the Collateral Agent in the exact form
received by such Guarantor (duly indorsed by such Guarantor to the Collateral Agent, if required),
to be applied against the Borrower Obligations, whether matured or unmatured, in accordance with
Section 6.5.



     2.4 Amendments, etc. with respect to the Borrower Obligations. Each Guarantor shall
remain obligated hereunder notwithstanding that, without any reservation of rights against any
Guarantor and without notice to or further assent by any Guarantor, any demand for payment of any of the Borrower Obligations made by the Administrative Agent, the
Collateral Agent or any Lender may be rescinded by the Administrative Agent, the Collateral Agent
or such Lender and any of the Borrower Obligations continued, and the Borrower Obligations, or the
liability of any other Person upon or for any part thereof, or any collateral security or guarantee
therefor or right of offset with respect thereto, may, from time to time, in whole or in part, be
renewed, extended, amended, modified, accelerated, compromised, waived, surrendered or released by
the Administrative Agent, the Collateral Agent or any Lender, and the Credit Agreement and the
other Loan Documents and any other documents executed and delivered in connection therewith may be
amended, modified, supplemented or terminated, in whole or in part, as the Administrative Agent (or
the Required Lenders or all Lenders, as the case may be) may deem advisable from time to time, and
any collateral security, guarantee or right of offset at any time held by the Administrative Agent,
the Collateral Agent or any Lender for the payment of the Borrower Obligations may be sold,
exchanged, waived, surrendered or released. None of the Administrative Agent, the Collateral Agent
or any Lender shall have any obligation to protect, secure, perfect or insure any Lien at any time
held by it as security for the Borrower Obligations or for the guarantee contained in this Section
2 or any property subject thereto.









 



6


     2.5 Guarantee Absolute and Unconditional. Each Guarantor waives any and all notice of
the creation, renewal, extension or accrual of any of the Borrower Obligations and notice of or
proof of reliance by the Administrative Agent, the Collateral Agent or any Lender upon the
guarantee contained in this Section 2 or acceptance of the guarantee contained in this Section 2;
the Borrower Obligations, and any of them, shall conclusively be deemed to have been created,
contracted or incurred, or renewed, extended, amended or waived, in reliance upon the guarantee
contained in this Section 2; and all dealings between the Borrower and any of the Guarantors, on
the one hand, and the Administrative Agent, the Collateral Agent and the Lenders, on the other
hand, likewise shall be conclusively presumed to have been had or consummated in reliance upon the
guarantee contained in this Section 2. Each Guarantor waives diligence, presentment, protest,
demand for payment and notice of default or nonpayment to or upon the Borrower or any of the
Guarantors with respect to the Borrower Obligations. Each Guarantor understands and agrees that
the guarantee of such Guarantor contained in this Section 2 shall be construed as a continuing,
absolute and unconditional guarantee of payment without regard to (a) the validity or
enforceability of the Credit Agreement or any other Loan Document, any of the Borrower Obligations
or any other collateral security therefor or guarantee or right of offset with respect thereto at
any time or from time to time held by the Administrative Agent, the Collateral Agent or any Lender,
(b) any defense, set-off or counterclaim (other than a defense of payment or performance) which may
at any time be available to or be asserted by the Borrower or any other Person against the
Administrative Agent, the Collateral Agent or any Lender, or (c) any other circumstance whatsoever
(with or without notice to or knowledge of the Borrower or such Guarantor) which constitutes, or
might be construed to constitute, an equitable or legal discharge of the Borrower for the Borrower
Obligations, or of such Guarantor under the guarantee of such Guarantor contained in this Section
2, in bankruptcy or in any other instance. When making any demand hereunder or otherwise pursuing
its rights and remedies hereunder against any Guarantor, the Administrative Agent, the Collateral
Agent or any Lender may, but shall be under no obligation to, make a similar demand on or otherwise
pursue such rights and remedies as it may have against the Borrower, any other Guarantor or any
other Person or against any collateral security or guarantee for the Borrower Obligations or any
right of offset with respect thereto, and any failure by the Administrative Agent, the Collateral
Agent or any Lender to make any such demand, to pursue such other rights or remedies or to collect
any payments from the Borrower, any other Guarantor or any other Person or to realize upon any such
collateral security or guarantee or to exercise any such right of offset, or any release of the
Borrower, any other Guarantor or any other Person or any such collateral security, guarantee or
right of offset, shall not relieve any Guarantor of any obligation or liability hereunder, and
shall not impair or affect the rights and remedies, whether express, implied or available as a
matter of law, of the Administrative Agent, the Collateral Agent or any Lender against any Guarantor. For the purposes hereof “demand” shall include the
commencement and continuance of any legal proceedings.



     2.6 Reinstatement. The guarantee contained in this Section 2 shall continue to be
effective, or be reinstated, as the case may be, if at any time payment, or any part thereof, of
any of the Borrower Obligations is rescinded or must otherwise be restored or returned by the
Administrative Agent, the Collateral Agent or any Lender upon the insolvency, bankruptcy,
dissolution, liquidation or reorganization of the Borrower or any Guarantor, or upon or as a result
of the appointment of a receiver, intervenor or conservator of, or trustee or similar officer for,
the Borrower or any Guarantor or any substantial part of its property, or otherwise, all as though
such payments had not been made.



     2.7 Payments. Each Guarantor hereby guarantees that payments hereunder will be paid
to the Administrative Agent without set-off or counterclaim in Dollars at the Funding Office as
specified in the Credit Agreement.



SECTION 3. GRANT OF SECURITY INTEREST











 



7




           Each Grantor hereby assigns and transfers to the Collateral Agent, and hereby grants to the
Collateral Agent, for its benefit and for the benefit of the other Secured Parties, a security
interest in all of the following property now owned or at any time hereafter acquired by such
Grantor or in which such Grantor now has or at any time in the future may acquire any right, title
or interest (collectively, the “Collateral”), as collateral security for the prompt and
complete payment and performance when due (whether at the stated maturity, by acceleration or
otherwise) of such Grantor’s Obligations:




     (a) all Accounts;



     (b) all Chattel Paper;



     (c) all Contracts;



     (d) all Deposit Accounts;



     (e) all Documents (other than title documents with respect to Vehicles);



     (f) all Equipment;



     (g) all Fixtures;



     (h) all General Intangibles;



     (i) all Instruments;



     (j) all Intellectual Property;



     (k) all Inventory;



     (l) all Investment Property;



     (m) all Letter-of-Credit Rights;



     (n) all other property not otherwise described above (except for any property specifically
excluded from any clause in this section above, and any property specifically excluded from any
defined term used in any clause of this section above);



     (o) all books and records pertaining to the Collateral; and



     (p) to the extent not otherwise included, all Proceeds, Supporting Obligations and products of
any and all of the foregoing and all collateral security and guarantees given by any Person with
respect to any of the foregoing;


provided, however, that notwithstanding any of the other provisions set forth in this
Section 3, this Agreement shall not constitute a grant of a security interest in (i) any property
to the extent that such grant of a security interest is prohibited by any Requirements of Law of a
Governmental Authority, requires a consent not obtained of any Governmental Authority pursuant to
such Requirement of Law or is prohibited by, or constitutes a breach or default under or results in
the termination of or requires any consent not obtained under, any contract, license, agreement,
instrument or other document evidencing or giving rise to such property or, in the case of any
Investment Property, Pledged Stock or Pledged Note, any applicable shareholder or similar
agreement, except to the extent that such Requirement of Law or the term in such contract, license,
agreement, instrument or other document or shareholder or similar










 



8



agreement providing for such prohibition, breach, default or termination or requiring such consent is ineffective under
applicable law, (ii) Deposit Accounts exclusively used for payroll, payroll taxes and other
employee wage and benefit payments to or for the benefit of any of Grantor’s employees or (iii) the
“Collateral” as defined in the Collateral Account Agreement.




SECTION 4. REPRESENTATIONS AND WARRANTIES




          To induce the Administrative Agent, the Collateral Agent and the Lenders to enter into the
Credit Agreement and to induce the Lenders to make their respective extensions of credit to the
Borrower thereunder, each Grantor hereby represents and warrants to the Administrative Agent, the
Collateral Agent and each Lender that:



     4.1 Title; No Other Liens. Except for the security interest granted to the
Administrative Agent for the ratable benefit of the Secured Parties pursuant to this Agreement and
the other Liens permitted to exist on the Collateral by the Credit Agreement, such Grantor owns
each item of the Collateral free and clear of any and all Liens or claims of others. No financing
statement or other public notice with respect to all or any part of the Collateral is on file or of
record in any public office, except such as have been filed in favor of the Collateral Agent, for
its benefit and for the benefit of the other Secured Parties, pursuant to this Agreement or as are
permitted by the Credit Agreement. For the avoidance of doubt, it is understood and agreed that
any Grantor may, as part of its business, grant licenses to third parties to use Intellectual
Property owned or developed by a Grantor. For purposes of this Agreement and the other Loan
Documents, such licensing activity shall not constitute a “Lien” on such Intellectual Property.
Each of the Administrative Agent, the Collateral Agent and each Lender understands that any such
licenses may be exclusive to the applicable licensees, and such exclusivity provisions may limit
the ability of the Collateral Agent to utilize, sell, lease or transfer the related Intellectual
Property or otherwise realize value from such Intellectual Property pursuant hereto.



     4.2 Perfected First Priority Liens. The security interests granted pursuant to this Agreement (a) upon completion of the
filings and other actions specified on Schedule 3 (which, in the case of all filings and other
documents referred to on said Schedule, have been delivered to the Administrative Agent in
completed and duly executed form) will constitute valid perfected security interests in all of the
Collateral in favor of the Collateral Agent, for its benefit and for the benefit of the other
Secured Parties, as collateral security for such Grantor’s Obligations, enforceable in accordance
with the terms hereof against all creditors of such Grantor and any Persons purporting to purchase
any Collateral from such Grantor and (b) are prior to all other Liens on the Collateral in
existence on the date hereof except for Liens permitted by the Credit Agreement; provided
that no representations are made herein with respect to the requirements of any laws of any
jurisdiction other than the United States or any State thereof.



     4.3 Jurisdiction of Organization; Chief Executive Office. On the date hereof, such
Grantor’s jurisdiction of organization, identification number from the jurisdiction of organization
(if any), and the location of such Grantor’s chief executive office or sole place of business or
principal residence, as the case may be, are specified on Schedule 4. Such Grantor has furnished
to the Administrative Agent a certified charter, certificate of incorporation or other organization
document and long-form good standing certificate as of a date which is recent to the date hereof.



     4.4 RESERVED.



     4.5 Farm Products. None of the Collateral constitutes, or is the Proceeds of, Farm
Products.



     4.6 Investment Property. (a) The shares of Pledged Stock pledged by such Grantor
hereunder constitute all the issued and outstanding shares of all classes of the Capital Stock of
each Issuer









 



9

owned by such Grantor or, in the case of Foreign Subsidiary Voting Stock, if less, 66%
of the outstanding Foreign Subsidiary Voting Stock of each relevant Issuer;




     (b) All the shares of the Pledged Stock have been duly and validly issued and are fully paid
and nonassessable;



     (c) Each of the Pledged Notes constitutes the legal, valid and binding obligation of the
obligor with respect thereto, enforceable in accordance with its terms, subject to the effects of
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws
relating to or affecting creditors’ rights generally, general equitable principles (whether
considered in a proceeding in equity or at law) and an implied covenant of good faith and fair
dealing;



     (d) Such Grantor is the record and beneficial owner of, and has good title to, the Investment
Property pledged by it hereunder, free of any and all Liens or options in favor of, or claims of,
any other Person, except the security interest created by this Agreement and Liens permitted by the
Credit Agreement; provided that no representations are made herein with respect to the
requirements of any laws of any jurisdiction other than the United States or any State thereof.



     4.7 Receivables. (a) No amount payable to such Grantor under or in connection with any Receivable is
evidenced by any Instrument or Chattel Paper which has not been delivered to the Collateral Agent
to the extent required by Section 5.1.



     (b) None of the obligors on any Receivables is a Governmental Authority.



     (c) The amounts represented by such Grantor to the Lenders from time to time as owing to such
Grantor in respect of the Receivables will at such times be accurate (in all material respects).



     4.8 Intellectual Property. (a) Schedule 5 lists all Intellectual Property
owned by such Grantor in its own name on the date hereof.



     (b) On the date hereof, all material Intellectual Property is valid, subsisting, unexpired and
enforceable, has not been abandoned and does not infringe the intellectual property rights of any
other Person in any material respect.



     (c) Except as set forth in Schedule 5, on the date hereof, none of such Intellectual
Property is the subject of any licensing or franchise agreement pursuant to which such Grantor is
the licensor or franchisor.



     (d) No holding, decision or judgment has been rendered by any Governmental Authority which
would limit, cancel or question the validity of, or such Grantor’s rights in, any such Intellectual
Property in any respect that could reasonably be expected to have a Material Adverse Effect.



     (e) No action or proceeding is pending, or, to the knowledge of such Grantor, threatened, on
the date hereof (i) seeking to limit, cancel or question the validity of any Intellectual Property
or such Grantor’s ownership interest therein, or (ii) which, if adversely determined, would have a
material adverse effect on the value of any Intellectual Property.



     4.9 Commercial Tort Claims




     (a) On the date hereof no Grantor has rights in any Commercial Tort Claim with potential value
in excess of $500,000.









 



10


     (b) Upon the filing of a financing statement covering any Commercial Tort Claim referred to in
Section 5.10 hereof against such Grantor in the jurisdiction specified in Schedule 3 hereto, the
security interest granted in such Commercial Tort Claim will constitute a valid perfected security
interest in favor of the Collateral Agent, for its benefit and for the benefit of the other Secured
Parties, as collateral security for such Grantor’s Obligations, enforceable in accordance with the
terms hereof against all creditors of such Grantor and any Persons purporting to purchase such
Collateral from Grantor, which security interest shall be prior to all other Liens on such
Collateral except for Liens permitted by the Credit Agreement.



SECTION 5. COVENANTS




          Each Grantor covenants and agrees with the Administrative Agent, the Collateral Agent and the
Lenders that, from and after the date of this Agreement until this Agreement terminates in
accordance with Section 8.15:




     5.1 Delivery of Instruments, Certificated Securities and Chattel Paper. If any amount
payable under or in connection with any of the Collateral shall be or become evidenced by any
Instrument, Certificated Security or Chattel Paper, such Instrument, Certificated Security or
Chattel Paper shall be immediately delivered to the Collateral Agent, duly indorsed in a manner
satisfactory to the Administrative Agent, to be held as Collateral pursuant to this Agreement;
provided, that the Grantors shall not be obligated to deliver to the Collateral Agent any
Instruments or Chattel Paper held by any Grantor at any time to the extent that (a) the aggregate
face amount of all such Instruments and Chattel Paper held by all Grantors at such time does not
exceed $5,000,000, and (b) the face amount of any individual Instrument or Chattel Paper held by
such Grantor at such time does not exceed $1,000,000.



     5.2 Maintenance of Insurance. (a) Such Grantor will maintain or cause to be
maintained, with financially sound and reputable companies, insurance as required by Section 5.5 of
the Credit Agreement.



     (b) All such insurance shall (i) provide for at least 30 days’ notice to the Administrative
Agent of termination, lapse or cancellation and (ii) name the Collateral Agent as insured party or
loss payee.



     5.3 RESERVED.



     5.4 Maintenance of Perfected Security Interest; Further Documentation. (a) Such
Grantor shall maintain the security interest created by this Agreement as a perfected security
interest having at least the priority described in Section 4.2 and shall defend such security
interest against the claims and demands of all Persons whomsoever, subject to the rights of such
Grantor under the Loan Documents to dispose of the Collateral.



     (b) Such Grantor will furnish to the Administrative Agent, the Collateral Agent and the
Lenders from time to time statements and schedules further identifying and describing the assets
and property of such Grantor and such other reports in connection therewith as the Administrative
Agent or the Collateral Agent may reasonably request, all in reasonable detail.



     (c) At any time and from time to time, upon the written request of the Administrative Agent or
the Collateral Agent, and at the sole expense of such Grantor, such Grantor will promptly and duly
execute and deliver, and have recorded, such further instruments and documents and take such
further actions as the Administrative Agent or the Collateral Agent may reasonably request for the
purpose of obtaining or preserving the full benefits of this Agreement and of the rights and powers
herein granted,









 



11

including, without limitation, (i) filing any financing or continuation statements
under the Uniform Commercial Code (or other similar laws) in effect in any jurisdiction in the
United States with respect to the security interests created hereby and (ii) in the case of
Investment Property, Deposit Accounts, and Letter-of-Credit Rights (to the extent not constituting
Supporting Obligations), taking any actions necessary to enable the Collateral Agent to obtain
“control” (within the meaning of the applicable Uniform Commercial Code) with respect thereto.




     5.5 Changes in Name, etc. Such Grantor will not, except upon 15 days’ prior written notice to the Administrative
Agent and the Collateral Agent and delivery to the Administrative Agent and the Collateral Agent of
all additional executed financing statements and other documents reasonably requested by the
Administrative Agent to maintain the validity, perfection and priority of the security interests
provided for herein, (i) change its jurisdiction of organization from that referred to in Section
4.3 or (ii) change its name.



     5.6 RESERVED.



     5.7 Investment Property. (a) If such Grantor shall become entitled to receive or
shall receive any certificate (including, without limitation, any certificate representing a
dividend or a distribution in connection with any reclassification, increase or reduction of
capital or any certificate issued in connection with any reorganization), option or rights in
respect of the Capital Stock of any Issuer, whether in addition to, in substitution of, as a
conversion of, or in exchange for, any shares of the Pledged Stock, or otherwise in respect
thereof, such Grantor shall accept the same as the agent of the Collateral Agent, the
Administrative Agent and the Lenders, hold the same in trust for the Collateral Agent, the
Administrative Agent and the Lenders and deliver the same forthwith to the Collateral Agent in the
exact form received, duly indorsed by such Grantor to the Collateral Agent, if required, together
with an undated stock power covering such certificate duly executed in blank by such Grantor and
with, if the Administrative Agent so requests, signature guaranteed, to be held by the Collateral
Agent, subject to the terms hereof, as additional collateral security for the Obligations. Any
sums paid upon or in respect of the Investment Property that constitutes Collateral upon the
liquidation or dissolution of any Issuer shall be paid over to the Collateral Agent to be held by
it hereunder as additional collateral security for the Obligations, and in case any distribution of
capital shall be made on or in respect of such Investment Property or any property shall be
distributed upon or with respect to such Investment Property pursuant to the recapitalization or
reclassification of the capital of any Issuer or pursuant to the reorganization thereof, the
property so distributed shall, unless otherwise subject to a perfected security interest in favor
of the Collateral Agent, be delivered to the Collateral Agent to be held by it hereunder as
additional collateral security for the Obligations. If any sums of money or property so paid or
distributed in respect of the Investment Property that constitutes Collateral shall be received by
such Grantor, such Grantor shall, until such money or property is paid or delivered to the
Collateral Agent, hold such money or property in trust for the Collateral Agent, the Administrative
Agent and the Lenders, segregated from other funds of such Grantor, as additional collateral
security for the Obligations.



     (b) Such Grantor will not (i) vote to enable, or take any other action to permit, any Issuer
to issue any Capital Stock of any nature or to issue any other securities convertible into or
granting the right to purchase or exchange for any Capital Stock of any nature of any Issuer,
unless such securities are delivered to the Collateral Agent, concurrently with the issuance
thereof, to be held by the Collateral Agent as Collateral, or (ii) without the prior written
consent of the Administrative Agent (x) sell, assign,









 



12

transfer, exchange, or otherwise dispose of, or grant any option with respect to, the Investment Property or Proceeds thereof (except pursuant
to a transaction expressly permitted by the Credit Agreement), (y) create, incur or permit to exist
any Lien or option in favor of, or any claim of any Person with respect to, any of the Investment
Property or Proceeds thereof, or any interest therein, except for the security interests created by
this Agreement or Liens permitted by the Credit Agreement or (z) enter into any
agreement or undertaking restricting the right or ability of such Grantor or the Collateral
Agent to sell, assign or transfer any of the Investment Property or Proceeds thereof.




     (c) In the case of each Grantor which is an Issuer, such Issuer agrees that (i) it will be
bound by the terms of this Agreement relating to the Investment Property issued by it and will
comply with such terms insofar as such terms are applicable to it, (ii) it will notify the
Administrative Agent and the Collateral Agent promptly in writing of the occurrence of any of the
events described in Section 5.7(a) with respect to the Investment Property issued by it and (iii)
the terms of Sections 6.3(c) and 6.7 shall apply to it, mutatis mutandis, with
respect to all actions that may be required of it pursuant to Section 6.3(c) or 6.7 with respect to
the Investment Property issued by it.



     5.8 Receivables. Other than in the ordinary course of business consistent with its
past practice or prudent industry practice used in industries that are the same as or similar to
those which such Grantor is engaged or which individually or in the aggregate are not material to
such Grantor, such Grantor will not (i) grant any extension of the time of payment of any
Receivable, (ii) compromise or settle any Receivable for less than the full amount thereof, (iii)
release, wholly or partially, any Person liable for the payment of any Receivable, (iv) allow any
credit or discount whatsoever on any Receivable or (v) amend, supplement or modify any Receivable
in any manner that could adversely affect the value thereof.



     5.9 Intellectual Property. (a) Such Grantor (either itself or through licensees)
will (i) continue to use each Trademark necessary for the conduct of its business as currently
conducted on each and every trademark class of goods applicable to its current line as reflected in
its current catalogs, brochures and price lists in order to maintain such Trademark in full force
free from any claim of abandonment for non-use, (ii) maintain as in the past substantially the same
quality of products and services offered under such Trademark, and (iii) use such Trademark with
the appropriate notice of registration and all other notices and legends required by applicable
Requirements of Law.



     (b) Such Grantor will not do any act, or omit to do any act, whereby any Patent necessary for
the conduct of its business as currently conducted may become forfeited, abandoned or dedicated to
the public.



     (c) Such Grantor (i) will employ each Copyright necessary for the conduct of its business as
currently conducted and (ii) will not do any act or knowingly omit to do any act whereby any
material portion of such Copyrights may become invalidated or otherwise impaired. Such Grantor
will not do any act whereby any material portion of such Copyrights may fall into the public
domain.



     (d) Such Grantor will not do any act that knowingly uses any material Intellectual Property
necessary for the conduct of its business as currently conducted to infringe the intellectual
property rights of any other Person.



     (e) Such Grantor will notify the Administrative Agent, the Collateral Agent and the Lenders
immediately if it knows, or has reason to know, that any application or registration relating to
any Intellectual Property necessary for the conduct of its business as currently conducted may
become forfeited, abandoned or dedicated to the public, or of any adverse determination or
development (including, without limitation, the institution of, or any such determination or
development in, any









 



13

proceeding in the United States Patent and Trademark Office, the United States
Copyright Office) regarding such Grantor’s ownership of, or the validity of, any such Intellectual Property or
such Grantor’s right to register the same or to own and maintain the same.




     (f) Whenever such Grantor, either by itself or through any agent, employee, licensee or
designee, shall file an application for the registration of any Intellectual Property necessary for
the conduct of its business as currently conducted with the United States Patent and Trademark
Office, the United States Copyright Office, such Grantor shall report such filing to the
Administrative Agent within five Business Days after the last day of the fiscal quarter in which
such filing occurs. Upon request of the Administrative Agent, such Grantor shall execute and
deliver, and have recorded, any and all agreements, instruments, documents, and papers as the
Administrative Agent or the Collateral Agent may request to evidence the Collateral Agent’s and the
Lenders’ security interest in any Copyright, Patent or Trademark necessary for the conduct of its
business as currently conducted and the goodwill and general intangibles of such Grantor relating
thereto or represented thereby.



     (g) Such Grantor will take all reasonable and necessary steps, including, without limitation,
in any proceeding before the United States Patent and Trademark Office, the United States Copyright
Office, to maintain and pursue each application relating to any Intellectual Property necessary for
the conduct of its business (and to obtain the relevant registration) and to maintain each
registration of such material Intellectual Property, including, without limitation, filing of
applications for renewal, affidavits of use and affidavits of incontestability.



     (h) In the event that any Intellectual Property necessary for the conduct of its business as
currently conducted is infringed, misappropriated or diluted by a third party, such Grantor shall
(i) take such actions as such Grantor shall reasonably deem appropriate under the circumstances to
protect such Intellectual Property and (ii) if such Intellectual Property is of material economic
value, promptly notify the Administrative Agent after it learns thereof and take such actions as
such Grantor shall reasonably deem appropriate, including filing suit for infringement,
misappropriation or dilution, to seek injunctive relief where appropriate and to recover any and
all damages for such infringement, misappropriation or dilution.



     5.10 Commercial Tort Claims. If such Grantor shall obtain an interest in any
Commercial Tort Claim which it reasonably deems to have a potential value in excess of $500,000,
such Grantor shall within 30 days of obtaining such interest sign and deliver documentation
acceptable to the Administrative Agent and the Collateral Agent granting a security interest under
the terms and provisions of this Agreement in and to such Commercial Tort Claim.



     5.11 Foreign Assets. Notwithstanding anything herein to the contrary, with respect to
any personal property of a Grantor constituting Collateral which is located in or pertaining to a
jurisdiction other than the United States or any State thereof, as to which the security interest
granted hereunder may not be perfected by (a) filing financing statements under the Uniform
Commercial Code, or (b) possession or “control” (as defined in Section 8-106 or Article 9 of the
UCC) thereof in the United States, such Grantor will not be required to take any action necessary
to perfect such security interest under the laws of the jurisdiction in which such property is
located or to which such property pertains.



SECTION 6. REMEDIAL PROVISIONS




     6.1 Certain Matters Relating to Receivables. (a) The Administrative Agent shall have the right, at any time after the occurrence and
during the continuance of an Event of Default, to make test verifications of the Receivables in any
manner and through any medium that it reasonably considers advisable, and each Grantor shall
furnish all such assistance and information as the Administrative Agent









 



14

may reasonably require in connection with such test verifications. At any time and from time to time after the occurrence
and during the continuance of an Event of Default, upon the Administrative Agent’s request and at
the expense of the relevant Grantor, such Grantor shall cause independent public accountants or
others satisfactory to the Administrative Agent to furnish to the Administrative Agent reports
showing reconciliations, aging and test verifications of, and trial balances for, the Receivables.




     (b) The Administrative Agent hereby authorizes each Grantor to collect such Grantor’s
Receivables, subject to the Administrative Agent’s direction and control, and the Administrative
Agent may curtail or terminate said authority at any time after the occurrence and during the
continuance of an Event of Default. If required by the Administrative Agent at any time after the
occurrence and during the continuance of an Event of Default, any payments of Receivables, when
collected by any Grantor, (i) shall be forthwith (and, in any event, within two Business Days)
deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the
Collateral Agent if required, in a Collateral Account maintained under the sole dominion and
control of the Collateral Agent, subject to withdrawal by the Collateral Agent for the account of
the Secured Parties only as provided in Section 6.5, and (ii) until so turned over, shall be held
by such Grantor in trust for the Collateral Agent, the Administrative Agent and the Lenders,
segregated from other funds of such Grantor. Each such deposit of Proceeds of Receivables shall be
accompanied by a report identifying in reasonable detail the nature and source of the payments
included in the deposit.



     6.2 Communications with Obligors; Grantors Remain Liable. (a) If an Event of Default
shall occur and is continuing, the Administrative Agent in its own name or in the name of others
may communicate with obligors under the Receivables to verify with them to the Administrative
Agent’s satisfaction the existence, amount and terms of any Receivables.



     (b) Upon the request of the Administrative Agent at any time after the occurrence and during
the continuance of an Event of Default, each Grantor shall notify obligors on the Receivables that
the Receivables have been assigned to the Collateral Agent for its benefit and for the benefit of
the other Secured Parties and that payments in respect thereof shall be made directly to the
Collateral Agent.



     (c) Anything herein to the contrary notwithstanding, each Grantor shall remain liable under
each of the Receivables to observe and perform all the conditions and obligations to be observed
and performed by it thereunder, all in accordance with the terms of any agreement giving rise
thereto. None of the Collateral Agent, the Administrative Agent or any Lender shall have any
obligation or liability under any Receivable (or any agreement giving rise thereto) by reason of or
arising out of this Agreement or the receipt by the Collateral Agent, the Administrative Agent or
any Lender of any payment relating thereto, nor shall the Collateral Agent, the Administrative
Agent or any Lender be obligated in any manner to perform any of the obligations of any Grantor
under or pursuant to any Receivable (or any agreement giving rise thereto) or Contract, to make any
payment, to make any inquiry as to the nature or the sufficiency of any payment received by it or
as to the sufficiency of any performance by any party thereunder, 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 it or to which it may be entitled at any time or times.



     6.3 Pledged Stock. (a) Unless an Event of Default shall have occurred and be continuing and the
Administrative Agent shall have given notice to the relevant Grantor of the Administrative Agent’s
intent to exercise its corresponding rights pursuant to Section 6.3(b), each Grantor shall be
permitted to receive all cash dividends paid in respect of the Pledged Stock and all payments made
in respect of the Pledged Notes, in each case paid in the normal course of business of the relevant
Issuer and consistent with past practice, to the extent permitted in the Credit Agreement, and to
exercise all voting and corporate or other organizational rights with respect to the Investment
Property; provided, however,









 



15

that no vote shall be cast or corporate or other organizational right
exercised or other action taken which would be inconsistent with or result in any violation of any
provision of the Credit Agreement, this Agreement or any other Loan Document.




     (b) If an Event of Default shall occur and be continuing and the Administrative Agent shall
give notice of its intent to exercise such rights to the relevant Grantor or Grantors, (i) the
Collateral Agent shall have the right to receive any and all cash dividends, payments or other
Proceeds paid in respect of the Investment Property and make application thereof to the Obligations
in accordance with Section 6.5, and (ii) any or all of the Investment Property shall be registered
in the name of the Collateral Agent or its nominee, and the Collateral Agent or its nominee may
thereafter exercise (x) all voting, corporate and other rights pertaining to such Investment
Property at any meeting of shareholders of the relevant Issuer or Issuers or otherwise and (y) any
and all rights of conversion, exchange and subscription and any other rights, privileges or options
pertaining to such Investment Property as if it were the absolute owner thereof (including, without
limitation, the right to exchange at its discretion any and all of the Investment Property upon the
merger, consolidation, reorganization, recapitalization or other fundamental change in the
corporate or other organizational structure of any Issuer, or upon the exercise by any Grantor or
the Collateral Agent of any right, privilege or option pertaining to such Investment Property, and
in connection therewith, the right to deposit and deliver any and all of the Investment Property
with any committee, depositary, transfer agent, registrar or other designated agency upon such
terms and conditions as the Administrative Agent may determine), all without liability except to
account for property actually received by it, but neither the Collateral Agent nor the
Administrative Agent shall have any duty to any Grantor to exercise any such right, privilege or
option and shall not be responsible for any failure to do so or delay in so doing.



     (c) Each Grantor hereby authorizes and instructs each Issuer of any Investment Property
pledged by such Grantor or the Administrative Agent hereunder to (i) comply with any instruction
received by it from the Collateral Agent in writing that (x) states that an Event of Default has
occurred and is continuing and (y) is otherwise in accordance with the terms of this Agreement,
without any other or further instructions from such Grantor, and each Grantor agrees that each
Issuer shall be fully protected in so complying, and (ii) unless otherwise expressly permitted
hereby, pay any dividends or other payments with respect to the Investment Property directly to the
Collateral Agent.



     6.4 Proceeds to be Turned Over To Collateral Agent. In addition to the rights of the
Administrative Agent, the Collateral Agent and the Lenders specified in Section 6.1 with respect to
payments of Receivables, if an Event of Default shall occur and be continuing, all Proceeds
received by any Grantor consisting of cash, checks and Instruments shall be held by such Grantor in
trust for the Collateral Agent, the Administrative Agent and the Lenders, segregated from other
funds of such Grantor, and shall, forthwith upon receipt by such Grantor, be turned over to the
Collateral Agent in the exact form received by such Grantor (duly indorsed by such Grantor to the
Collateral Agent, if required). All Proceeds received by the Collateral Agent hereunder shall be
held by the Collateral Agent in a Collateral Account maintained under its sole dominion and
control. All Proceeds while held in trust for the Secured Parties by the Collateral Agent in a
Collateral Account (or by such Grantor in trust for the Collateral Agent, the Administrative Agent
and the Lenders) shall continue to be held as collateral security for all the Obligations and shall not constitute payment
thereof until applied as provided in Section 6.5.



     6.5 Application of Proceeds. At such intervals as may be agreed upon by the Borrower
and the Administrative Agent, or, if an Event of Default shall have occurred and be continuing, at
any time at the Administrative Agent’s election, the Collateral Agent may apply all or any part of
Proceeds constituting Collateral, whether or not held in any Collateral Account, and any proceeds
of the guarantee set forth in Section 2, in payment of the Obligations in the following order:









 



16


          First, to pay incurred and unpaid fees and expenses of the Administrative Agent
and the Collateral Agent under the Loan Documents, including, without limitation, fees and
expenses of counsel to the Administrative Agent and the Collateral Agent;




          Second, to the Administrative Agent, for application by it towards payment of
amounts then due and owing and remaining unpaid in respect of the Obligations, pro
rata among the Secured Parties according to the amounts of the Obligations then due
and owing and remaining unpaid to the Secured Parties;




          Third, to the Administrative Agent, for application by it towards prepayment of
the Obligations, pro rata among the Secured Parties according to the amounts
of the Obligations then held by the Secured Parties; and




          Fourth, any balance remaining after the Obligations shall have been paid in
full and the Commitments shall have terminated shall be paid over to the Borrower or to
whomsoever may be lawfully entitled to receive the same.




     6.6 Code and Other Remedies. If an Event of Default shall occur and be continuing,
the Collateral Agent, on behalf of itself, the Collateral Agent, the Administrative Agent and the
Lenders, may exercise, in addition to all other rights and remedies granted to them in this
Agreement and in any other instrument or agreement securing, evidencing or relating to the
Obligations, all rights and remedies of a secured party under the New York UCC or any other
applicable law. Without limiting the generality of the foregoing, the Collateral Agent, without
demand of performance or other demand, presentment, protest, advertisement or notice of any kind
(except notice pursuant to 6.3(b) and any notice required by law referred to below) to or upon any
Grantor or any other Person (all and each of which demands, defenses, advertisements and notices
are hereby waived), may in such circumstances forthwith collect, receive, appropriate and realize
upon the Collateral, or any part thereof, and/or may forthwith sell, lease, assign, give option or
options to purchase, or otherwise dispose of and deliver the Collateral or any part thereof (or
contract to do any of the foregoing), in one or more parcels at public or private sale or sales, at
any exchange, broker’s board or office of the Collateral Agent, the Administrative Agent or any
Lender or elsewhere upon such terms and conditions as it may deem advisable and at such prices as
it may deem best, for cash or on credit or for future delivery without assumption of any credit
risk. The Collateral Agent, the Administrative Agent or any Lender shall have the right upon any
such public sale or sales, and, to the extent permitted by law, upon any such private sale or
sales, to purchase the whole or any part of the Collateral so sold, free of any right or equity of
redemption in any Grantor, which right or equity is hereby waived and released. Each Grantor
further agrees, at the Collateral Agent’s request, to assemble the Collateral and make it available
to the Collateral Agent at places which the Collateral Agent shall reasonably select, whether at
such Grantor’s premises or elsewhere. The Collateral Agent shall apply the net proceeds of any
action taken by it pursuant to Section 6.5 with respect to any Grantor’s Collateral, after deducting all
reasonable costs and expenses of every kind incurred in connection therewith or incidental to the
care or safekeeping of any of the Collateral of such Grantor or in any way relating to the
Collateral of such Grantor or the rights of the Collateral Agent, the Administrative Agent and the
Lenders hereunder, including, without limitation, reasonable attorneys’ fees and disbursements, to
the payment in whole or in part of the Obligations, and only after such application and after the
payment by the Collateral Agent of any other amount required by any provision of law, including,
without limitation, Section 9-615(a)(3) of the New York UCC, need the Collateral Agent account for
the surplus, if any, to any Grantor. To the extent permitted by applicable law, each Grantor
waives all claims, damages and demands it may acquire against the Collateral Agent, the
Administrative Agent or any Lender arising out of the exercise by them of any rights hereunder, to
the extent such exercise does not constitute gross negligence or willful misconduct. If any notice
of a proposed sale or other disposition of Collateral shall









 



17

be required by law, such notice shall be deemed reasonable and proper if given at least 10 days before such sale or other disposition.




     6.7 Registration Rights. (a) If the Collateral Agent and the Administrative Agent
shall determine to exercise the Collateral Agent’s right to sell any or all of the Pledged Stock
pursuant to Section 6.6, and if in the opinion of the Collateral Agent or the Administrative Agent
it is necessary or advisable to have the Pledged Stock, or that portion thereof to be sold,
registered under the provisions of the Securities Act, the relevant Grantor will cause the Issuer
thereof to (i) execute and deliver, and cause the directors and officers of such Issuer to execute
and deliver, all such instruments and documents, and do or cause to be done all such other acts as
may be, in the opinion of the Collateral Agent or the Administrative Agent, necessary or advisable
to register the Pledged Stock, or that portion thereof to be sold, under the provisions of the
Securities Act, (ii) use its best efforts to cause the registration statement relating thereto to
become effective and to remain effective for a period of one year from the date of the first public
offering of the Pledged Stock, or that portion thereof to be sold, and (iii) make all amendments
thereto and/or to the related prospectus which, in the opinion of the Collateral Agent or the
Administrative Agent, are necessary or advisable, all in conformity with the requirements of the
Securities Act and the rules and regulations of the Securities and Exchange Commission applicable
thereto. Each Grantor agrees to cause such Issuer to comply with the provisions of the securities
or “Blue Sky” laws of any and all jurisdictions which the Collateral Agent or the Administrative
shall designate and to make available to its security holders, as soon as practicable, an earnings
statement (which need not be audited) which will satisfy the provisions of Section 11(a) of the
Securities Act.



     (b) Each Grantor recognizes that the Collateral Agent may be unable to effect a public sale of
any or all the Pledged Stock, by reason of certain prohibitions contained in the Securities Act and
applicable state securities laws or otherwise, and may be compelled to resort to one or more
private sales thereof to a restricted group of purchasers which will be obliged to agree, among
other things, to acquire such securities for their own account for investment and not with a view
to the distribution or resale thereof. Each Grantor acknowledges and agrees that any such private
sale may result in prices and other terms less favorable than if such sale were a public sale and,
notwithstanding such circumstances, agrees that any such private sale shall be deemed to have been
made in a commercially reasonable manner. Neither the Collateral Agent nor the Administrative
Agent shall be under any obligation to delay a sale of any of the Pledged Stock for the period of
time necessary to permit the Issuer thereof to register such securities for public sale under the
Securities Act, or under applicable state securities laws, even if such Issuer would agree to do
so.



     (c) Each Grantor agrees to use its best efforts to do or cause to be done all such other acts
as may be necessary to make such sale or sales of all or any portion of the Pledged Stock pursuant
to this Section 6.7 valid and binding and in compliance with any and all other applicable
Requirements of Law.Each Grantor further agrees that a breach of any of the covenants contained in this Section
6.7 will cause irreparable injury to the Collateral Agent, the Administrative Agent and the
Lenders, that the Collateral Agent, the Administrative Agent and the Lenders have no adequate
remedy at law in respect of such breach and, as a consequence, that each and every covenant
contained in this Section 6.7 shall be specifically enforceable against such Grantor, and such
Grantor hereby waives and agrees not to assert any defenses against an action for specific
performance of such covenants except for a defense that no Event of Default has occurred under the
Credit Agreement.



     6.8 Subordination. Each Grantor hereby agrees that, upon the occurrence and during
the continuance of an Event of Default, unless otherwise agreed by the Administrative Agent, all
Indebtedness owing by it to any Subsidiary of the Borrower shall be fully subordinated to the
indefeasible payment in full in cash of such Grantor’s Obligations.




 









 




18



     6.9 Deficiency. Each Grantor shall remain liable for any deficiency if the
proceeds of any sale or other disposition of the Collateral are insufficient to pay its Obligations
and the fees and disbursements of any attorneys employed by the Administrative Agent, the
Collateral Agent or any Lender to collect such deficiency.



SECTION 7. THE COLLATERAL AGENT




     7.1 Collateral Agent’s Appointment as Attorney-in-Fact, etc. (a) Each Grantor hereby
irrevocably constitutes and appoints the Collateral Agent and any officer or agent thereof, with
full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power and
authority in the place and stead of such Grantor and in the name of such Grantor or in its own
name, for the purpose of carrying out the terms of this Agreement, to take any and all appropriate
action and to execute any and all documents and instruments which may be necessary or desirable to
accomplish the purposes of this Agreement, and, without limiting the generality of the foregoing,
each Grantor hereby gives the Collateral Agent the power and right, on behalf of such Grantor,
without notice to or assent by such Grantor, to do any or all of the following:




     (i) in the name of such Grantor or its own name, or otherwise, take possession of and
indorse and collect any checks, drafts, notes, acceptances or other instruments for the payment
of moneys due under any Receivable or with respect to any other Collateral and file any claim or
take any other action or proceeding in any court of law or equity or otherwise deemed
appropriate by the Administrative Agent or the Collateral Agent for the purpose of collecting
any and all such moneys due under any Receivable or with respect to any other Collateral
whenever payable;




     (ii) in the case of any material Intellectual Property, execute and deliver, and have
recorded, any and all agreements, instruments, documents and papers as the Administrative Agent
may request to evidence the Collateral Agent’s, the Administrative Agent’s and the Lenders’
security interest in such Intellectual Property and the goodwill and general intangibles of such
Grantor relating thereto or represented thereby;




     (iii) pay or discharge taxes and Liens levied or placed on or threatened against the
Collateral, effect any repairs or any insurance called for by the terms of this Agreement and
pay all or any part of the premiums therefor and the costs thereof;




     (iv) execute, in connection with any sale provided for in Section 6.6 or 6.7, any
indorsements, assignments or other instruments of conveyance or transfer with respect to the
Collateral; and




     (v) (1) direct any party liable for any payment under any of the Collateral to make
payment of any and all moneys due or to become due thereunder directly to the Collateral Agent
or as the Administrative Agent or the Collateral Agent shall direct; (2) ask or demand for,
collect, and receive payment of and receipt for, any and all moneys, claims and other amounts
due or to become due at any time in respect of or arising out of any Collateral; (3) sign and
indorse any invoices, freight or express bills, bills of lading, storage or warehouse receipts,
drafts against debtors, assignments, verifications, notices and other documents in connection
with any of the Collateral; (4) commence and prosecute any suits, actions or proceedings at law
or in equity in any court of competent jurisdiction to collect the Collateral or any portion
thereof and to enforce any other right in respect of any Collateral; (5) defend any suit, action
or proceeding brought against such Grantor with respect to any Collateral; (6) settle,
compromise or adjust any such suit, action or proceeding and, in
connection therewith, give such discharges or releases as the Administrative Agent or the
Collateral Agent may deem appropriate; (7) assign any Copyright, Patent or Trademark (along with
the goodwill of the business to which any such Copyright, Patent or Trademark pertains),
throughout the world for









 



19



such term or terms, on such conditions, and in such manner, as the
Administrative Agent or the Collateral Agent shall in its sole discretion determine; and (8)
generally, sell, transfer, pledge and make any agreement with respect to or otherwise deal with
any of the Collateral as fully and completely as though the Collateral Agent were the absolute
owner thereof for all purposes, and do, at the Administrative Agent’s option and such Grantor’s
expense, at any time, or from time to time, all acts and things which the Administrative Agent
and/or the Collateral Agent deems necessary to protect, preserve or realize upon the Collateral
and the Collateral Agent’s, the Administrative Agent’s and the Lenders’ security interests
therein and to effect the intent of this Agreement, all as fully and effectively as such Grantor
might do.



     Anything in this Section 7.1(a) to the contrary notwithstanding, each of the Collateral Agent
and the Administrative Agent agrees that it will not exercise any rights under the power of
attorney provided for in this Section 7.1(a) unless an Event of Default shall have occurred and be
continuing.



     (b) If any Grantor fails to perform or comply with any of its agreements contained herein,
each of the Collateral Agent and the Administrative Agent, at its option, but without any
obligation so to do, may perform or comply, or otherwise cause performance or compliance, with such
agreement.



     (c) The expenses of the Administrative Agent and the Collateral Agent incurred in connection
with actions undertaken as provided in this Section 7.1, together with interest thereon at a rate
per annum equal to the highest rate per annum at which interest would then be payable on any
category of past due ABR Loans under the Credit Agreement, from the date of payment by the
Collateral Agent and the Administrative Agent, as the case may be, to the date reimbursed by the
relevant Grantor, shall be payable by such Grantor to the Collateral Agent and the Administrative
Agent, as the case may be, on demand.



     (d) Each Grantor hereby ratifies all that said attorneys shall lawfully do or cause to be done
by virtue hereof. All powers, authorizations and agencies contained in this Agreement are coupled
with an interest and are irrevocable until this Agreement is terminated and the security interests
created hereby are released.



     7.2 Duty of Collateral Agent. The Collateral Agent’s sole duty with respect to the
custody, safekeeping and physical preservation of the Collateral in its possession, under Section
9-207 of the New York UCC or otherwise, shall be to deal with it in the same manner as the
Collateral Agent deals with similar property for its own account. Neither the Collateral Agent,
the Administrative Agent, any Lender nor any of their respective officers, directors, employees or
agents shall be liable for failure to demand, collect or realize upon any of the Collateral or for
any delay in doing so or shall be under any obligation to sell or otherwise dispose of any
Collateral upon the request of any Grantor or any other Person or to take any other action
whatsoever with regard to the Collateral or any part thereof. The powers conferred on the
Collateral Agent, the Administrative Agent and the Lenders hereunder are solely to protect the
Collateral Agent’s, the Administrative Agent’s and the Lenders’ interests in the Collateral and
shall not impose any duty upon the Collateral Agent or any Lender to exercise any such powers. The
Collateral Agent, the Administrative Agent and the Lenders shall be accountable only for amounts
that they actually receive as a result of the exercise of such powers, and neither they nor any of
their officers, directors, employees or agents shall be responsible to any Grantor for any act or
failure to act hereunder, except for their own gross negligence or willful misconduct.



     7.3 Execution of Financing Statements. Pursuant to any applicable law, each Grantor
authorizes the Administrative Agent to file or record financing statements and other filing or
recording documents or instruments with respect to the Collateral without the signature of such
Grantor in such form and in such offices as the Administrative Agent determines appropriate to
perfect the security









 



20



interests of the Collateral Agent and the Administrative Agent under this
Agreement. Each Grantor authorizes the Collateral Agent to use the collateral description “all
personal property” in any such financing statements. Each Grantor hereby ratifies and authorizes
the filing by the Administrative Agent of any financing statement with respect to the Collateral
made prior to the date hereof.



     7.4 Authority of Collateral Agent. Each Grantor acknowledges that the rights and
responsibilities of the Collateral Agent under this Agreement with respect to any action taken by
the Collateral Agent or the exercise or non-exercise by the Collateral Agent of any option, voting
right, request, judgment or other right or remedy provided for herein or resulting or arising out
of this Agreement shall, as between the Collateral Agent, the Administrative Agent and the Lenders,
be governed by the Credit Agreement and by such other agreements with respect thereto as may exist
from time to time among them, but, as between the Collateral Agent and the Grantors, the Collateral
Agent shall be conclusively presumed to be acting as agent for the Secured Parties with full and
valid authority so to act or refrain from acting, and no Grantor shall be under any obligation, or
entitlement, to make any inquiry respecting such authority.



SECTION 8. MISCELLANEOUS




     8.1 Amendments in Writing. None of the terms or provisions of this Agreement may be
waived, amended, supplemented or otherwise modified except in accordance with Section 9.1 of the
Credit Agreement.



     8.2 Notices. All notices, requests and demands to or upon the Collateral Agent or any
Grantor hereunder shall be effected in the manner provided for in Section 9.2 of the Credit
Agreement; provided that any such notice, request or demand to or upon any Guarantor shall be
addressed to such Guarantor at its notice address set forth on Schedule 1.



     8.3 No Waiver by Course of Conduct; Cumulative Remedies. None of the Collateral
Agent, the Administrative Agent or any Lender shall by any act (except by a written instrument
pursuant to Section 8.1), delay, indulgence, omission or otherwise be deemed to have waived any
right or remedy hereunder or to have acquiesced in any Default or Event of Default. No failure to
exercise, nor any delay in exercising, on the part of the Collateral Agent, the Administrative
Agent or any Lender, any right, power or privilege hereunder shall operate as a waiver thereof. No
single or partial exercise of any right, power or privilege hereunder shall preclude any other or
further exercise thereof or the exercise of any other right, power or privilege. A waiver by the
Collateral Agent, the Administrative Agent or any Lender of any right or remedy hereunder on any
one occasion shall not be construed as a bar to any right or remedy which the Collateral Agent, the
Administrative Agent or such Lender would otherwise have on any future occasion. The rights and
remedies herein provided are cumulative, may be exercised singly or concurrently and are not
exclusive of any other rights or remedies provided by law.



     8.4 Enforcement Expenses; Indemnification. (a) Each Guarantor agrees to pay or
reimburse each Lender, the Administrative Agent and the Collateral Agent for all its costs and
expenses incurred in collecting against such Guarantor under the guarantee contained in Section 2
or otherwise enforcing or preserving any rights under this Agreement and the other Loan Documents
to which such Guarantor is a party, including, without limitation, the fees and disbursements of
counsel (including the allocated fees and expenses of in-house counsel) to each Lender and of
counsel to the Administrative Agent and the Collateral Agent.



     (b) Each Guarantor agrees to pay, and to save the Collateral Agent, the Administrative Agent
and the Lenders harmless from, any and all liabilities with respect to, or resulting from any delay
in paying, any and all stamp, excise, sales or other taxes which may be payable or determined to be payable









 



21



with respect to any of the Collateral or in connection with any of the transactions
contemplated by this Agreement.



     (c) Each Guarantor agrees to pay, and to save the Collateral Agent, the Administrative Agent
and the Lenders harmless from, any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever with
respect to the execution, delivery, enforcement, performance and administration of this Agreement
to the extent the Borrower would be required to do so pursuant to Section 9.5 of the Credit
Agreement.



     (d) The agreements in this Section 8.4 shall survive repayment of the Obligations and all
other amounts payable under the Credit Agreement and the other Loan Documents.



     8.5 Successors and Assigns. This Agreement shall be binding upon the successors and
assigns of each Grantor and shall inure to the benefit of the Collateral Agent, the Administrative
Agent and the Lenders and their successors and assigns; provided that no Grantor may assign,
transfer or delegate any of its rights or obligations under this Agreement without the prior
written consent of the Administrative Agent.



     8.6 Set-Off. In addition to any rights and remedies of the Secured Parties provided
by law, each Lender shall have the right at any time and from time to time while an Event of
Default shall have occurred and be continuing, without notice to any Grantor, any such notice being
expressly waived by each Grantor to the extent permitted by applicable law, upon any Obligations
becoming due and payable by any Grantor (whether at the stated maturity, by acceleration or
otherwise), to apply to the payment of such Obligations, by setoff or otherwise, any and all
deposits (general or special, time or demand, provisional or final), in any currency, and any other
credits, indebtedness or claims, in any currency, in each case whether direct or indirect, absolute
or contingent, matured or unmatured, at any time held or owing by such Secured Parties, to or for
the credit or the account of such Grantor. Each Secured Party agrees promptly to notify the
relevant Grantor and the Administrative Agent after any such application made by such Secured
Party, provided that the failure to give such notice shall not affect the validity of such
application.



     8.7 Counterparts. This Agreement may be executed by one or more of the parties to
this Agreement on any number of separate counterparts (including by telecopy), and all of said
counterparts taken together shall be deemed to constitute one and the same instrument.



     8.8 Severability. Any provision of this Agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.



     8.9 Section Headings. The Section headings used in this Agreement are for convenience
of reference only and are not to affect the construction hereof or be taken into consideration in
the interpretation hereof.



     8.10 Integration. This Agreement and the other Loan Documents represent the agreement
of the Grantors, the Collateral Agent, the Administrative Agent and the Lenders with respect to the
subject matter hereof and thereof, and there are no promises, undertakings, representations or
warranties by the Collateral Agent, the Administrative Agent or any Lender relative to subject
matter hereof and thereof not expressly set forth or referred to herein or in the other Loan
Documents.









 



22


     8.11 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.



     8.12 Submission To Jurisdiction; Waivers. Each Grantor hereby irrevocably and
unconditionally:



     (a) submits for itself and its property in any legal action or proceeding relating to this
Agreement and the other Loan Documents to which it is a party, or for recognition and enforcement
of any judgment in respect thereof, to the non-exclusive general jurisdiction of the courts of the
State of New York, the courts of the United States of America for the Southern District of New
York, and appellate courts from any thereof;



     (b) consents that any such action or proceeding may be brought in such courts and waives any
objection that it may now or hereafter have to the venue of any such action or proceeding in any
such court or that such action or proceeding was brought in an inconvenient court and agrees not to
plead or claim the same;



     (c) agrees that service of process in any such action or proceeding may be effected by mailing
a copy thereof by registered or certified mail (or any substantially similar form of mail), postage
prepaid, to such Grantor at its address referred to in Section 8.2 or at such other address of
which the Administrative Agent shall have been notified pursuant thereto;



     (d) agrees that nothing herein shall affect the right to effect service of process in any
other manner permitted by law or shall limit the right to sue in any other jurisdiction; and



     (e) waives, to the maximum extent not prohibited by law, any right it may have to claim or
recover in any legal action or proceeding referred to in this Section any special, exemplary,
punitive or consequential damages.



     8.13 Acknowledgements. Each Grantor hereby acknowledges that:



     (a) it has been advised by counsel in the negotiation, execution and delivery of this
Agreement and the other Loan Documents to which it is a party;



     (b) none of the Collateral Agent, the Administrative Agent or any Lender has any fiduciary
relationship with or duty to any Grantor arising out of or in connection with this Agreement or any
of the other Loan Documents, and the relationship between the Grantors, on the one hand, and the
Collateral Agent, the Administrative Agent and Lenders, on the other hand, in connection herewith
or therewith is solely that of debtor and creditor; and



     (c) no joint venture is created hereby or by the other Loan Documents or otherwise exists by
virtue of the transactions contemplated hereby among the Lenders or among the Grantors and the
Lenders.



     8.14 Additional Grantors. Each Subsidiary of the Borrower that is required to become
a party to this Agreement pursuant to Section 5.9 of the Credit Agreement shall become a Grantor
for all purposes of this Agreement upon execution and delivery by such Subsidiary of an Assumption
Agreement in the form of Annex 1 hereto.









 



23


     8.15 Releases. (a) At such time as the Loans and the other Obligations shall have
been paid in full and the Commitments have been terminated, the Collateral shall be released from
the Liens created hereby, and this Agreement and all obligations (other than those expressly stated
to survive such termination) of the Collateral Agent, the Administrative Agent and each Grantor
hereunder shall terminate, all without delivery of any instrument or performance of any act by any
party, and all rights to the Collateral shall revert to the Grantors. At the request and sole
expense of any Grantor following any such termination, the Collateral Agent shall deliver to such
Grantor any Collateral held by the Collateral Agent hereunder, and execute and deliver to such
Grantor such documents as such Grantor shall reasonably request to evidence such termination.



     (b) If any of the Collateral shall be sold, transferred or otherwise disposed of by any
Grantor in a transaction permitted by the Credit Agreement, then the Collateral Agent, at the
request and sole expense of such Grantor (and the request of the Administrative Agent), shall
execute and deliver to such Grantor all releases or other documents reasonably necessary or
desirable for the release of the Liens created hereby on such Collateral. At the request and sole
expense of the Borrower, a Subsidiary Guarantor shall be released from its obligations hereunder in
the event that all the Capital Stock of such Subsidiary Guarantor shall be sold, transferred or
otherwise disposed of in a transaction permitted by the Credit Agreement.



     8.16 WAIVER OF JURY TRIAL.



           EACH GRANTOR HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY LEGAL
ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AND FOR ANY COUNTERCLAIM
THEREIN.




     8.17 Authority Subject to Credit Agreement. (a) Wilmington Trust Company has been
appointed the Collateral Agent hereunder pursuant to Section 8 of the Credit Agreement. It is
expressly understood and agreed by the parties to this Agreement that any authority conferred upon
the Collateral Agent hereunder is subject to the terms of the delegation of authority made by the
Secured Parties (other than the Collateral Agent) to the Collateral Agent pursuant to the Credit
Agreement and that the Collateral Agent has agreed to act (and any successor Collateral Agent shall
act) as such hereunder only on the express conditions contained in the Credit Agreement (including,
without limitation, Section 8.2 thereof). Any successor Collateral Agent appointed in accordance
with Section 8.2 of the Credit Agreement shall be entitled to all the rights, interests and
benefits of the Collateral Agent hereunder.



     (b) In the event of a conflict between this Agreement and the Credit Agreement, the Credit
Agreement will govern and control.



     8.18 Intercreditor Agreement Governs. Notwithstanding any other provision contained
herein, this Agreement, the Liens created hereby and the rights, remedies, duties and obligations
provided for herein are subject in all respects to the provisions of the Intercreditor Agreement.
In the event of any conflict or inconsistency between the provisions of this Agreement and the
Intercreditor Agreement, the provisions of the Intercreditor Agreement shall govern and control for
all purposes.









 



 


     IN WITNESS WHEREOF, each of the undersigned has caused this Guarantee and Collateral Agreement
to be duly executed and delivered as of the date first above written.



	 	 	 	 	 
	 	SUPERIOR OFFSHORE INTERNATIONAL, L.L.C.

 	 
	 	By:  	/s/ Roger D. Burks
 	 
	 	 	Title: Chief Financial Officer 	 
	 	 	 	 
	 



Signature Page to Guarantee and Collateral Agreement











 





Schedule 1




NOTICE ADDRESSES OF GUARANTORS



N/A.





 









 








Schedule 2




DESCRIPTION OF INVESTMENT PROPERTY




Pledged Stock




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	Issuer

	 	 	Class of Stock
	 	 	Stock Certificate No.
	 	 	Percentage of
Pledged Shares
	 
	 	Superior Subsea
Holdings Ltd.
(Cayman Islands)

	 	 	Common Stock
	 	 	 	001	 	 	 	 	66	%	 
	 





Pledged Notes





	1.	 	Non-negotiable promissory note in the original principal amount of $95,000 made by Greenhead
Rentals, LLC in favor of Superior Offshore International, L.L.C. dated Dec. 7, 2006 in
connection with the sale of certain assets (including buoys, net guards, templates, trash
caps, related equipment, supplies and agreements).





 









 





Schedule 3




FILINGS AND OTHER ACTIONS

REQUIRED TO PERFECT SECURITY INTERESTS



Uniform Commercial Code Filings

Louisiana — Orleans Parish



Patent and Trademark Filings

N/A.



Actions with respect to Pledged Stock

Delivery of stock certificate and stock power in blank



Other Actions

N/A.




 









 





Schedule 4




LOCATION OF JURISDICTION OF ORGANIZATION AND CHIEF EXECUTIVE OFFICE




	 	 	 	 	 	 	 	 	 
	 	Grantor

	 	 	Jurisdiction of Organization
	 	 	Location of Chief Executive Office	 
	 	Superior Offshore
International,
L.L.C.

	 	 	Louisiana
	 	 	900 S. College Rd., Suite 301
Lafayette, LA 70503	 
	 






 









 








Schedule 5



COPYRIGHTS AND COPYRIGHT LICENSES

N/A.



PATENTS

N/A.




PATENT LICENSES




	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	Licensor

	 	 	Licensee
	 	 	U.S. Patent Number
	 	 	Comments	 
	 	Louis E. Schaefer, Jr.

	 	 	Superior Offshore
International,
L.L.C.
	 	 	 	6,926,085	 	 	 	Safety System for

Underwater Cutting	 
	 




TRADEMARKS AND TRADEMARK LICENSES

N/A.





 










 



 




ACKNOWLEDGEMENT AND CONSENT




     The undersigned hereby acknowledges receipt of a copy of the Guarantee and Collateral
Agreement dated as of February 27, 2007 (the “Agreement”), made by the Grantors parties
thereto for the benefit of Wilmington Trust Company, as Collateral Agent. The undersigned agrees
for the benefit of the Collateral Agent, the Administrative Agent and the Lenders as follows:



          1. The undersigned will be bound by the terms of the Agreement and will comply with such terms
insofar as such terms are applicable to the undersigned.




          2. The undersigned will notify the Collateral Agent and the Administrative Agent promptly in
writing of the occurrence of any of the events described in Section 5.7(a) of the Agreement.




          3. The terms of Sections 6.3(c) and 6.7 of the Agreement shall apply to it, mutatis
mutandis, with respect to all actions that may be required of it pursuant to Section 6.3(c)
or 6.7 of the Agreement.




	 	 	 	 	 
	 	SUPERIOR SUBSEA HOLDINGS LTD.

 	 
	 	By:  	Superior Offshore International, L.L.C.,
Its Sole Member 
 	 
	 	By:  	/s/ Roger D. Burks 	 
	 	 	Name:  	Roger D. Burks 	 
	 	 	Title:  	Chief Financial Officer 	 
	 



	 	 	 
	 

	 	Address for Notices:
 

Superior Subsea Holdings Ltd.

c/o M&C Corporate Services Limited

P.O. Box 306 GT

Ugland House

George Town

Grand Cayman, Cayman Islands













 



 




Annex 1 to




Guarantee and Collateral Agreement




     ASSUMPTION AGREEMENT, dated as of                                         , 200                
    , made by
                                                             (the “Additional Grantor”), in favor of Wilmington Trust
Company, as collateral agent (in such capacity, the “Collateral Agent”) for the banks and
other financial institutions or entities (the “Lenders”) parties to the Credit Agreement
referred to below. All capitalized terms not defined herein shall have the meaning ascribed to
them in such Credit Agreement.



W I T N E S S E T H:




     WHEREAS, Superior Offshore International, L.L.C. (the “Borrower”), the Lenders, the
Collateral Agent and JPMorgan Chase Bank, N.A., as administrative agent (the “Administrative
Agent”) have entered into a Credit Agreement, dated as of February [                    ], 2007 (as amended,
supplemented or otherwise modified from time to time, the “Credit Agreement”);



     WHEREAS, in connection with the Credit Agreement, the Borrower has entered into the Guarantee
and Collateral Agreement, dated as of February [                    ], 2007 (as amended, supplemented or otherwise
modified from time to time, the “Guarantee and Collateral Agreement”) in favor of the
Collateral Agent for its benefit and for the benefit of the other Secured Parties;



     WHEREAS, the Credit Agreement requires the Additional Grantor to become a party to the
Guarantee and Collateral Agreement; and



     WHEREAS, the Additional Grantor has agreed to execute and deliver this Assumption Agreement in
order to become a party to the Guarantee and Collateral Agreement;



     NOW, THEREFORE, IT IS AGREED:



     1. Guarantee and Collateral Agreement. By executing and delivering this Assumption
Agreement, the Additional Grantor, as provided in Section 8.14 of the Guarantee and Collateral
Agreement, hereby becomes a party to the Guarantee and Collateral Agreement as a Grantor thereunder
with the same force and effect as if originally named therein as a Grantor and, without limiting
the generality of the foregoing, hereby expressly assumes all obligations and liabilities of a
Grantor thereunder. The information set forth in Annex 1-A hereto is hereby added to the
information set forth in the Schedules to the Guarantee and Collateral Agreement. The Additional
Grantor hereby represents and warrants that each of the representations and warranties contained in
Section 4 of the Guarantee and Collateral Agreement is true and correct on and as the date hereof
(after giving effect to this Assumption Agreement) as if made on and as of such date.



     2. Governing Law. THIS ASSUMPTION AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.









 



2


     IN WITNESS WHEREOF, the undersigned has caused this Assumption Agreement to be duly executed
and delivered as of the date first above written.



	 	 	 	 	 
	 	[ADDITIONAL GRANTOR]

 	 
	 	By:  	___________________________
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 










 



 


Annex 1-A to




Assumption Agreement




Supplement to Schedule 1




Supplement to Schedule 2




Supplement to Schedule 3




Supplement to Schedule 4




Supplement to Schedule 5




Supplement to Schedule 6