Exhibit 10.14


 


EXECUTION
COPY


 




 





 


SECOND
LIEN GUARANTEE AND COLLATERAL AGREEMENT


 


dated
as of


 


June 15,
2007


 


among


 


STR
ACQUISITION, INC.,


 


STR
HOLDINGS LLC,


 


the
Subsidiaries of the Borrower


from
time to time party hereto


 


and


 


CREDIT
SUISSE,


as
Collateral Agent


 


THIS IS
THE SECOND LIEN GUARANTEE AND COLLATERAL AGREEMENT REFERRED TO IN (A) THE
INTERCREDITOR AGREEMENT OF EVEN DATE HEREWITH AMONG STR ACQUISITION, INC., STR
HOLDINGS LLC, THE SUBSIDIARIES OF THE BORROWER FROM TIME TO TIME PARTY THERETO
AND CREDIT SUISSE, AS FIRST LIEN COLLATERAL AGENT AND AS SECOND LIEN COLLATERAL
AGENT AND (B) THE OTHER SECURITY DOCUMENTS REFERRED TO IN THE CREDIT AGREEMENTS
REFERRED TO HEREIN.




 


 





 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  
	
  ARTICLE I

  
	
   

  
	
  Definitions

  
	
   

  
	
  SECTION 1.01.

  	
  Credit
  Agreement

  	
  2

  
	
  SECTION 1.02.

  	
  Other
  Defined Terms

  	
  2

  
	
   

  	
   

  	
   

  
	
  ARTICLE II

  
	
   

  
	
  Guarantee

  
	
  SECTION 2.01.

  	
  Guarantee

  	
  6

  
	
  SECTION 2.02.

  	
  Guarantee
  of Payment

  	
  7

  
	
  SECTION 2.03.

  	
  No
  Limitations, Etc

  	
  7

  
	
  SECTION 2.04.

  	
  Reinstatement

  	
  8

  
	
  SECTION 2.05.

  	
  Agreement
  To Pay; Subrogation

  	
  8

  
	
  SECTION 2.06.

  	
  Information

  	
  9

  
	
   

  	
   

  	
   

  
	
  ARTICLE III

  
	
   

  	
   

  
	
  Pledge of Securities

  
	
   

  	
   

  	
   

  
	
  SECTION 3.01. 

  	
  Pledge

  	
  9

  
	
  SECTION 3.02. 

  	
  Delivery
  of the Pledged Collateral

  	
  10

  
	
  SECTION 3.03. 

  	
  Representations,
  Warranties and Covenants

  	
  10

  
	
  SECTION 3.04. 

  	
  Certification
  of Limited Liability Company Interests and Limited Partnership Interests

  	
  12

  
	
  SECTION 3.05.

  	
  Registration
  in Nominee Name; Denominations

  	
  12

  
	
  SECTION 3.06.

  	
  Voting
  Rights; Dividends and Interest, Etc.

  	
  12

  
	
   

  	
   

  	
   

  
	
  ARTICLE IV

  
	
   

  	
   

  
	
  Security Interests in Personal Property

  
	
   

  	
   

  	
   

  
	
  SECTION 4.01.

  	
  Security
  Interest

  	
  15

  
	
  SECTION 4.02.

  	
  Representations
  and Warranties

  	
  16

  
	
  SECTION 4.03.

  	
  Covenants

  	
  18

  
	
  SECTION 4.04.

  	
  Other
  Actions

  	
  21

  
	
  SECTION 4.05.

  	
  Covenants
  Regarding Patent, Trademark and Copyright Collateral

  	
  24

  



 

















 


	
  ARTICLE V

  
	
   

  	
   

  	
   

  
	
  Remedies

  
	
   

  	
   

  	
   

  
	
  SECTION 5.01.

  	
  Remedies
  Upon Default

  	
  26

  
	
  SECTION 5.02.

  	
  Application
  of Proceeds

  	
  27

  
	
  SECTION 5.03.

  	
  Grant
  of License to Use Intellectual Property

  	
  28

  
	
  SECTION 5.04.

  	
  Securities
  Act, Etc

  	
  28

  
	
   

  	
   

  	
   

  
	
  ARTICLE VI

  
	
   

  	
   

  	
   

  
	
  Indemnity, Subrogation and Subordination

  
	
   

  	
   

  	
   

  
	
  SECTION 6.01. 

  	
  Indemnity
  and Subrogation

  	
  29

  
	
  SECTION 6.02.

  	
  Contribution
  and Subrogation

  	
  30

  
	
  SECTION 6.03. 

  	
  Subordination

  	
  30

  
	
   

  	
   

  	
   

  
	
  ARTICLE VII

  
	
   

  
	
  Miscellaneous

  
	
   

  
	
  SECTION 7.01.

  	
  Notices

  	
  30

  
	
  SECTION 7.02.

  	
  Security Interest Absolute

  	
  31

  
	
  SECTION 7.03.

  	
  Survival of Agreement

  	
  31

  
	
  SECTION 7.04.

  	
  Binding Effect; Several Agreement

  	
  31

  
	
  SECTION 7.05.

  	
  Successors and Assigns

  	
  32

  
	
  SECTION 7.06.

  	
  Collateral Agent’s Fees and Expenses; Indemnification

  	
  32

  
	
  SECTION 7.07.

  	
  Collateral Agent Appointed Attorney-in-Fact

  	
  32

  
	
  SECTION 7.08.

  	
  Applicable Law

  	
  33

  
	
  SECTION 7.09.

  	
  Waivers; Amendment

  	
  33

  
	
  SECTION 7.10.

  	
  WAIVER OF JURY TRIAL

  	
  34

  
	
  SECTION 7.11.

  	
  Severability

  	
  34

  
	
  SECTION 7.12.

  	
  Counterparts

  	
  34

  
	
  SECTION 7.13.

  	
  Headings

  	
  35

  
	
  SECTION 7.14.

  	
  Jurisdiction; Consent to Service of Process

  	
  35

  
	
  SECTION 7.15.

  	
  Termination or Release

  	
  35

  
	
  SECTION 7.16.

  	
  Additional Subsidiaries

  	
  36

  
	
  SECTION 7.17.

  	
  Right of Setoff

  	
  36

  



 


ii

















 


Schedules


 


	
  Schedule I

  	
  Subsidiary
  Guarantors

  	
   

  
	
  Schedule II

  	
  Equity
  Interests; Pledged Debt Securities

  	
   

  
	
  Schedule III

  	
  Intellectual
  Property

  	
   

  
	
   

  	
   

  	
   

  
	
  Exhibits

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Exhibit A

  	
  Form of
  Supplement

  	
   

  
	
  Exhibit B

  	
  Form of
  Perfection Certificate

  	
   

  



 


iii

















 


SECOND LIEN GUARANTEE AND
COLLATERAL AGREEMENT dated as of June 15, 2007 (this “Agreement”),  among STR ACQUISITION, INC., a
Delaware corporation, which substantially simultaneously with the execution
hereof shall be merged with and into SPECIALIZED TECHNOLOGY RESOURCES, INC., a
Delaware corporation (“STR”),  with STR being the surviving
entity (the “Borrower”),  STR HOLDINGS LLC, a Delaware
limited liability company (“Holdings”),  the Subsidiaries of the Borrower
from time to time party hereto and CREDIT SUISSE (“Credit Suisse”),  as collateral agent (in such
capacity, the “Collateral Agent”).


 


PRELIMINARY STATEMENT


 


Reference is made to (a) the Second Lien Credit Agreement dated as of June 15,
2007 (as amended, supplemented or otherwise modified from time to time, the “Credit
Agreement”),  among
the Borrower, Holdings, the lenders from time to time party thereto (the “Lenders”)  and Credit Suisse, as
administrative agent (in such capacity, the “Administrative Agent”) and Collateral Agent, (b) the First Lien Credit Agreement
dated as of June 15, 2007 (as amended, supplemented or otherwise modified
from time to time, the “First Lien Credit Agreement”),  among the Borrower, Holdings, the
Lenders and Credit Suisse, as administrative agent, (c) the First Lien Guarantee and Collateral Agreement dated
as of June 15, 2007 (as amended, supplemented or otherwise modified from
time to time, the “First Lien Guarantee and
Collateral Agreement”)  among
the Borrower, Holdings, the Subsidiaries of the Borrower from time to time
party thereto and Credit Suisse, as first lien collateral agent (in such
capacity, the “First Lien Collateral Agent”),  and (d) the Intercreditor
Agreement dated as of June 15, 2007 (as amended, supplemented or otherwise
modified from time to time, the “Intercreditor Agreement”),  among Borrower, Holdings, the
Subsidiaries of the Borrower from time to time party thereto and Credit Suisse,
in its capacities as the Collateral Agent and as the First Lien Collateral.


 


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


 

















 


ARTICLE I 


 


Definitions


 


SECTION 1.01. Credit
Agreement.  (a) Capitalized terms used in this
Agreement and not otherwise defined herein have the meanings set forth in the
Credit Agreement. All capitalized terms defined in the New York UCC (as such
term is defined herein) and not defined in this Agreement have the meanings
specified therein. All references to the Uniform Commercial Code shall mean the
New York UCC.


 


(b) The rules of
construction specified in Section 1.02 of the Credit Agreement also apply to
this Agreement.


 


SECTION 1.02. Other
Defined Terms. As
used in this Agreement, the following terms have the meanings specified below:


 


“Accounts
Receivable”  shall mean all
Accounts and all right, title and interest in any returned goods, together with
all rights, titles, securities and guarantees with respect thereto, including
any rights to stoppage in transit, replevin, reclamation and resales, and
all related security interests, liens and pledges, whether voluntary or
involuntary, in each case whether now existing or owned or hereafter arising or
acquired.


 


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


 


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


 


“Assignment of Distributions”  shall mean the assignment of distribution
substantially in the form of Exhibit C.


 


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


 


“Collateral”  shall mean the Article 9
Collateral and the Pledged Collateral.


 


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


 


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


 


“Copyrights”  shall mean all of the
following now owned or hereafter acquired by any Grantor: (a)  all copyright
rights in any work subject to the copyright laws of the United States or any
other country, whether as author, assignee, transferee or


 


2

















 


otherwise,
and (b) all registrations and applications for registration of any such copyright
in the United States or any other country, including registrations, recordings,
supplemental registrations and pending applications for registration in the
United States Copyright Office (or any successor office or any similar office
in any other country), including those listed on Schedule III.


 


“Discharge
of First Lien Obligations”  shall have the
meaning assigned to such term in the Intercreditor Agreement.


 


“Excluded
Assets”  shall mean (a) any
lease, license, contract, property right or agreement to which any Grantor is a
party or any of its rights or interests thereunder if and only for so long as
the grant of a security interest hereunder shall constitute or result in a
breach, termination or default under any such lease, license, contract, property
right or agreement (other than to the extent that any such term would be
rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the
UCC of any relevant jurisdiction or any other applicable law or principles of
equity); provided, however, that any portion of any such lease, license,
contract, property right or agreement shall cease to constitute an Excluded
Asset pursuant to this clause at the time and to the extent that the grant of
security interest therein does not result in any of the consequences specified
above, (b) motor vehicles the perfection of a security interest in which
is excluded from the Uniform Commercial Code in the relevant jurisdiction, (c) interests
in real property, (d) any Equity Interest in an Excluded Entity and (e) any
application to register Trademarks in the U.S. Patent and Trademark Office
based upon Grantor’s “intent to use” such Trademark (but only if the grant of
security interest to such intent-to-use Trademark violates 15 U.S.C. § 1060(a))
unless and until a “Statement of Use” or “Amendment to Allege Use” is filed in
the U.S. Patent and Trademark Office with respect thereto, at which point the
Collateral shall include, and the security interest granted hereunder shall
attach to, such application.


 


“Excluded
Entity”  shall mean each
of (i) STR-Registrar LLC, (ii) CTC Asia Ltd. and (iii) Specialized
Technology Resources (India) Pvt Ltd. to the extent that the necessary
governmental consents to make a valid and enforceable pledge of 66% of its
issued and outstanding stock to the Collateral Agent have not been obtained.


 


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


 


“First
Lien Collateral Agent”  shall have the
meaning assigned to such term in the preliminary statement.


 


“First
Lien Credit Agreement”  shall have the
meaning assigned to such term in the preliminary statement.


 


“First
Lien Guarantee and Collateral Agreement”  shall have the meaning
assigned to such term in the preliminary statement.


 


3

















 


“First Lien Loan Documents”  shall have the meaning
assigned to the term “Loan Documents” in the First Lien Credit Agreement.


 


“First Lien Obligations”  shall have the meaning
assigned to such term in the Intercreditor Agreement.


 


“First Priority Liens”  shall have the meaning
assigned to such term in the Intercreditor Agreement.


 


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


 


“Grantors”  shall
mean the Borrower and the Guarantors.


 


“Guarantors”  shall
mean Holdings and the Subsidiary Guarantors.


 


“Holdings”  shall have the meaning
assigned to such term in the preamble.


 


“Intellectual Property”  shall mean all intellectual
and similar property of any Grantor of every kind and nature now owned or
hereafter acquired by any Grantor, including inventions, designs, Patents,
Copyrights, Licenses, Trademarks, trade secrets, confidential or proprietary
technical and business information, know-how, show-how or other data or information,
software and databases and all embodiments or fixations thereof and related
documentation, registrations and franchises, and all additions, improvements
and accessions to, and books and records describing or used in connection with,
any of the foregoing.


 


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


 


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


 


“Obligations”  shall mean (a) the due and punctual payment
of (i) the principal of and
interest (including interest accruing during the pendency of any bankruptcy,
insolvency, receivership or other similar proceeding, regardless of whether
allowed or allowable in such proceeding) on the Loans, when and as due, whether
at maturity, by acceleration, upon one or more dates set for prepayment or
otherwise and (ii) all other monetary obligations of the Borrower to any
of the Secured Parties under the


 


4

















 


Credit
Agreement and each of the other Loan Documents, including fees, costs, expenses
and indemnities, whether primary, secondary, direct, contingent, fixed or
otherwise (including monetary obligations incurred during the pendency of any
bankruptcy, insolvency, receivership or other similar proceeding, regardless of
whether allowed or allowable in such proceeding), (b) the due and punctual
performance of all other obligations of the Borrower under or pursuant to the
Credit Agreement and each of the other Loan Documents, and (c) the due and
punctual payment and performance of all the obligations of each other Loan
Party under or pursuant to this Agreement and each of the other Loan Documents.


 


“Patent
License”  shall mean any
written agreement, now or hereafter in effect, granting to any third person any
right to make, use or sell any invention on which a patent, now or hereafter
owned by any Grantor or that any Grantor otherwise has the right to license, is
in existence, or granting to any Grantor any right to make, use or sell any
invention on which a patent, now or hereafter owned by any third person, is in existence,
and all rights of any Grantor under any such agreement.


 


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


 


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


 


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


 


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


 


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


 


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


 


“Secured
Parties”  shall mean (a) the
Lenders, (b) the Administrative Agent, (c) the Collateral Agent, (d) the
beneficiaries of each indemnification obligation


 


5

















 


undertaken
by any Loan Party under any Loan Document and (e) the successors and
assigns of each of the foregoing.


 


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


 


“Subsidiary
Guarantor”  shall mean (a) the Subsidiaries identified on
Schedule I hereto as Subsidiary Guarantors and (b) each other Subsidiary
that becomes a party to this Agreement as a Subsidiary Guarantor after the
Closing Date; provided, however,
that in no event shall STR-Registrar LLC become a Subsidiary
Guarantor.


 


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


“Trademarks”  shall mean all of the
following now owned or hereafter acquired by any Grantor: (a) all
trademarks, service marks, trade names, corporate names, company names, business
names, fictitious business names, trade styles, trade dress, logos, other
source or business identifiers, designs and general intangibles of like nature,
now existing or hereafter adopted or acquired, all registrations and recordings
thereof, and all registration and recording applications filed in connection
therewith, including registrations and registration applications in the United
States Patent and Trademark Office (or any successor office) or any similar
offices in any State of the United States or any other country or any political
subdivision thereof, and all extensions or renewals thereof, including those
listed on Schedule III, (b) all goodwill associated therewith or
symbolized thereby and (c) all other assets, rights and interests that
uniquely reflect or embody such goodwill.


 


“Unfunded
Advances”  shall mean the
aggregate amount, if any (i) made available to the Borrower on the assumption
that each Lender has made its portion of the applicable Borrowing available to
the Administrative Agent as contemplated by Section 2.02(d) of the
Credit Agreement and (ii) with respect to which a corresponding amount
shall not in fact have been returned to the Administrative Agent by the
Borrower or made available to the Administrative Agent by any such Lender.


 


ARTICLE II 


 


Guarantee


 


SECTION 2.01. Guarantee.  Each Guarantor unconditionally
guarantees, jointly with the other Guarantors and severally, as a primary
obligor and not merely as a surety, the due and punctual payment and
performance of the Obligations. Each  Guarantor further agrees that the
Obligations may be extended or renewed, in whole or in part, without notice to
or further assent from it, and that it will remain bound upon its guarantee
notwithstanding any extension or renewal of any Obligation for the ratable


 


6

















 


benefit
of the Secured Parties. Each Guarantor waives presentment to, demand of payment
from and protest to the Borrower or any other Loan Party of any Obligation, and
also waives notice of acceptance of its guarantee and notice of protest for
nonpayment.


 


SECTION 2.02. Guarantee
of Payment.  Each
Guarantor further agrees that its guarantee hereunder constitutes a guarantee
of payment when due and not of collection, and waives any right to require that
any resort be had by the Collateral Agent or any other Secured Party to any
security held for the payment of the Obligations or to any balance of any Deposit
Account or credit on the books of the Collateral Agent or any other Secured
Party in favor of the Borrower or any other person.


 


SECTION 2.03. Nature
of Guarantee.  (a) If
and to the extent required in order for the Obligations to be enforceable under
applicable federal, state and other laws relating to the insolvency of debtors,
the maximum liability of such Guarantor hereunder shall be limited to the
greatest amount which can lawfully be guaranteed by such Guarantor under such
laws, after giving effect to any rights of contribution, reimbursement and
subrogation arising under Article VI. Each Guarantor acknowledges and
agrees that, to the extent not prohibited by applicable law, (i) such
Guarantor (as opposed to its creditors, representatives of creditors or
bankruptcy trustee, including such Guarantor in its capacity as debtor in
possession exercising any powers of a bankruptcy trustee) has no personal right
under such laws to reduce, or request any judicial relief that has the effect
of reducing, the amount of its liability under this Agreement, (ii) such
Guarantor (as opposed to its creditors, representatives of creditors or
bankruptcy trustee, including such Guarantor in its capacity as debtor in
possession exercising any powers of a bankruptcy trustee) has no personal right
to enforce the limitation set forth in this Section 2.03(a) or to reduce,
or request judicial relief reducing, the amount of its liability under this
Agreement, and (iii) the limitation set forth in this Section 2.03(a) may
be enforced only to the extent required under such laws in order for the
obligations of such Guarantor under this Agreement to be enforceable under such
laws and only by or for the benefit of a creditor, representative of creditors
or bankruptcy trustee of such Guarantor or other person entitled, under such
laws, to enforce the provisions thereof.


 


(b) Except for termination of a Guarantor’s obligations hereunder
as expressly provided in Section 7.15, the obligations of each Guarantor
hereunder shall not be subject to any reduction, limitation, impairment or
termination for any reason, including any claim of waiver, release, surrender,
alteration or compromise, and shall not be subject to any defense or setoff,
counterclaim, recoupment or termination whatsoever by reason of the invalidity,
illegality or unenforceability of the Obligations or otherwise. Without
limiting the generality of the foregoing, the obligations of each Guarantor
hereunder shall not be discharged or impaired or otherwise affected by (i) the
failure of the Collateral Agent or any other Secured Party to assert any claim
or demand or to enforce any right or remedy under the provisions of any Loan
Document or otherwise, (ii) any rescission, waiver, amendment or modification
of, or any release from any of the terms or provisions of, any Loan Document or
any other agreement, including with respect to any other Guarantor under this
Agreement, (iii) the release of, or any impairment of or failure to
perfect any Lien on or security interest in, any security held by the
Collateral Agent or any other Secured Party for the Obligations or any of them,


 


7

















 


(iv) any
default, failure or delay, wilful or otherwise, in the performance of the
Obligations, or (v) any other act or omission that may or might in any
manner or to any extent vary the risk of any Guarantor or otherwise operate as
a discharge of any Guarantor as a matter of law or equity (other than the
indefeasible payment in full in cash of all the Obligations). Subject to the
terms of this Agreement, each Guarantor expressly authorizes the Collateral
Agent to take and hold security for the payment and performance of the
Obligations, to exchange, waive or release any or all such security (with or
without consideration), to enforce or apply such security and direct the order
and manner of any sale thereof in its sole discretion or to release or substitute
any one or more other guarantors or obligors upon or in respect of the
Obligations, all without affecting the obligations of any Guarantor hereunder.


 


(c) To the fullest extent permitted by applicable law, each
Guarantor waives any defense based on or arising out of any defense of the
Borrower or any other Loan Party or the unenforceability of the Obligations or
any part thereof from any cause, or the cessation from any cause of the
liability of the Borrower or any other Loan Party, other than the indefeasible
payment in full in cash of all the Obligations. The Collateral Agent and the
other Secured Parties may, at their election, foreclose on any security held by
one or more of them by one or more judicial or nonjudicial sales, accept an
assignment of any such security in lieu of foreclosure, compromise or adjust
any part of the Obligations, make any other accommodation with the Borrower or
any other Loan Party or exercise any other right or remedy available to them
against the Borrower or any other Loan Party, without affecting or impairing in
any way the liability of any Guarantor hereunder except to the extent the
Obligations have been fully and indefeasibly paid in full in cash. To the
fullest extent permitted by applicable law, each Guarantor waives any defense
arising out of any such election even though such election operates, pursuant
to applicable law, to impair or to extinguish any right of reimbursement or
subrogation or other right or remedy of such Guarantor against the Borrower or
any other Loan Party, as the case may be, or any security.


 


SECTION 2.04. Reinstatement.  Each Guarantor agrees that its guarantee
hereunder shall continue to be effective or be reinstated, as the case may be,
if at any time payment, or any part thereof, of any Obligation is rescinded or
must otherwise be restored by the Collateral Agent or any other Secured Party
upon the bankruptcy or reorganization of the Borrower, any other Loan Party or
otherwise.


 


SECTION 2.05. Agreement
To Pay; Subrogation.  In
furtherance of the foregoing and not in limitation of any other right that the
Collateral Agent or any other Secured Party has at law or in equity against any
Guarantor by virtue hereof, if the Borrower or any other Loan Party shall fail
to pay any Obligation when and as the same shall become due (after taking into account
any applicable grace period), whether at maturity, by acceleration, after
notice of prepayment or otherwise, each Guarantor hereby promises to and will forthwith
pay, or cause to be paid, to the Collateral Agent for distribution to the
applicable Secured Parties in cash the amount of such unpaid Obligation. Upon
payment by any Guarantor of any sums to the Collateral Agent as provided above,
all rights of such Guarantor against the Borrower or any other Guarantor
arising as a result thereof by way of right of subrogation, contribution,
reimbursement,


 


8

















 


indemnity
or otherwise shall in all respects be subject to Article VI, provided that each Guarantor reserves any
and all other rights of reimbursement, contribution or subrogation at any time
available to it against any other Guarantor.


 


SECTION 2.06. Information.  Each Guarantor assumes all responsibility
for being and keeping itself informed of the Borrower’s and each other Loan
Party’s financial condition and assets and of all other circumstances bearing
upon the risk of nonpayment of the Obligations and the nature, scope and extent
of the risks that such Guarantor assumes and incurs hereunder, and agrees that
neither the Collateral Agent nor any other Secured Party will have any duty to
advise such Guarantor of information known to it or any of them regarding such
circumstances or risks.


 


ARTICLE III 


 


Pledge of
Securities


 


SECTION 3.01. Pledge.  As security for the payment or
performance, as the case may be, in full of the Obligations, each Grantor
hereby assigns and pledges to the Collateral Agent, its successors and assigns,
for the ratable benefit of the Secured Parties, and hereby grants to the
Collateral Agent, its successors and assigns, for the ratable benefit of the
Secured Parties, a security interest in, all of such Grantor’s right, title and
interest, in, to and under (a)(i) the Equity Interests owned by such Grantor on
the date hereof (including all such Equity Interests listed on Schedule II), (ii) any
other Equity Interests obtained in the future by such Grantor and (iii) the
certificates representing all such Equity Interests (all the foregoing collectively
referred to herein as the “Pledged Stock”); provided, however,  that the Pledged Stock shall not
include (x) more than 66% of the issued and outstanding voting Equity
Interests of any Foreign Subsidiary or (y) an Excluded Asset, (b)(i) the
debt securities held by such Grantor on the date hereof (including all such
debt securities listed opposite the name of such Grantor on Schedule II), (ii)
any debt securities in the future issued to such Grantor and (iii) the promissory
notes and any other instruments evidencing such debt securities (all the
foregoing collectively referred to herein as the “Pledged Debt Securities”),  (c) all
other property that may be delivered to and held by the Collateral Agent
pursuant to the terms of this Section 3.01, (d) subject to Section 3.06,
all payments of principal or interest, dividends, cash, instruments and other
property from time to time received, receivable or otherwise distributed in
respect of, in exchange for or upon the conversion of, and all other Proceeds
received in respect of, the securities referred to in clauses (a)  and
(b) above, (e) subject to Section 3.06, all rights and privileges of
such Grantor with respect to the securities and other property referred to in
clauses (a), (b), (c) and (d) above, and (f) all
Proceeds of any of the foregoing (the items referred to in clauses (a) through
(f) above being collectively referred to as the “Pledged Collateral”);  provided, however, that notwithstanding
any other provision in this agreement, this Section 3.01 shall not, at any
time, constitute a grant of security interest in an Excluded Asset.


 


TO HAVE AND TO HOLD the Pledged Collateral, together with all right,
title, interest, powers, privileges and preferences pertaining or incidental
thereto, unto the


 


9

















 


Collateral
Agent, its successors and assigns, for the ratable benefit of the Secured
Parties forever; subject, however, to
the terms, covenants and conditions hereinafter set forth.


 


SECTION 3.02. Delivery
of the Pledged Collateral.
(a) Each Grantor agrees promptly to deliver or cause to be delivered to
the Collateral Agent (or, prior to the Discharge of First Lien Obligations, to
the First Lien Collateral Agent, acting as a gratuitous bailee of the
Collateral Agent) any and all certificates, instruments or other documents
representing or evidencing Pledged Securities.


 


(b) Each Grantor agrees promptly to deliver or cause to be
delivered to the Collateral Agent (or, prior to the Discharge of First Lien
Obligations, to the First Lien Collateral Agent, acting as a gratuitous bailee
of the Collateral Agent) any and all Pledged Debt Securities.


 


(c) Upon delivery to the Collateral Agent (or, prior to the
Discharge of First Lien Obligations, to the First Lien Collateral Agent, acting
as a gratuitous bailee of the Collateral Agent), (i) any certificate,
instrument or document representing or evidencing Pledged Securities shall be
accompanied by undated stock powers duly executed in blank or other undated
instruments of transfer satisfactory to the Collateral Agent and duly executed
in blank and by such other instruments and documents as the Collateral Agent
may reasonably request and (ii) all other property comprising part of the Pledged
Collateral shall be accompanied by proper instruments of assignment duly
executed by the applicable Grantor and such other instruments or documents as
the Collateral Agent may reasonably request. Each delivery of Pledged
Securities shall be accompanied by a schedule describing the applicable
securities, which schedule shall be attached hereto as Schedule II and made a
part hereof; provided that
failure to attach any such schedule hereto shall not affect the validity of the
pledge of such Pledged Securities. Each schedule so delivered shall supplement
any prior schedules so delivered.


 


(d) In accordance with the terms of the Intercreditor Agreement,
all Pledged Collateral delivered to the First Lien Collateral Agent shall be
held by the First Lien Collateral Agent, until the transfer of possession of
such Pledged Collateral to the Collateral Agent following the Discharge of
First Lien Obligations, as gratuitous bailee for the Secured Parties solely for
the purpose of perfecting the security interest therein granted under this
Agreement.


 


SECTION 3.03. Representations,
Warranties and Covenants.  The
Grantors jointly and severally represent, warrant and covenant to and with the
Collateral Agent, for the benefit of the Secured Parties, that:


 


(a) Schedule II
correctly sets forth in all material respects the percentage of the issued and
outstanding shares of each class of the Equity Interests of the issuer thereof
represented by such Pledged Stock and includes all Equity Interests, debt
securities and promissory notes required to be pledged hereunder;


 


10














 


(b) the
Pledged Stock and Pledged Debt Securities have been duly and validly authorized
and issued by the issuers thereof and (i) in the case of Pledged Stock,
are fully paid and nonassessable and (ii) in the case of Pledged Debt
Securities, are legal, valid and binding obligations of the issuers thereof;


 


(c) except
for the security interests granted hereunder (or otherwise permitted under the
Credit Agreement), each Grantor (i) is and, subject to any transfers made
in compliance with the Credit Agreement, will continue to be the direct owner,
beneficially and of record, of the Pledged Securities indicated on Schedule II
as owned by such Grantor, (ii) holds the same free and clear of all Liens,
(iii) will make no assignment, pledge, hypothecation or transfer of, or create
or permit to exist any security interest in or other Lien on, the Pledged
Collateral, other than transfers made in compliance with the Credit Agreement,
and (iv) subject to Section 3.06 and the terms of the Intercreditor
Agreement, will cause any and all Pledged Collateral, whether for value paid by
such Grantor or otherwise, to be forthwith deposited with the Collateral Agent
(or, prior to the Discharge of First Lien Obligations, to the First Lien
Collateral Agent, acting as a gratuitous bailee of the Collateral Agent) and
pledged or assigned hereunder;


 


(d) except
for restrictions and limitations imposed by the Loan Documents or securities
laws generally, the Pledged Collateral is and will continue to be freely
transferable and assignable, and none of the Pledged Collateral is or will be
subject to any option, right of first refusal, shareholders agreement, charter
or by-law provisions or contractual restriction of any nature that might
prohibit, impair, delay or otherwise affect the pledge of such Pledged
Collateral hereunder, the sale or disposition thereof pursuant hereto or the
exercise by the Collateral Agent of rights and remedies hereunder;


 


(e) each
Grantor (i) has the power and authority to pledge the Pledged Collateral
pledged by it hereunder in the manner hereby done or contemplated and (ii) will
defend its title or interest thereto or therein against any and all Liens
(other than any Lien created or permitted by the Loan Documents), however
arising, of all persons whomsoever;


 


(f) no
consent or approval of any Governmental Authority, any securities exchange or
any other person was or is necessary to the validity of the pledge effected
hereby (other than such as have been obtained and are in full force and effect
or those that, if not obtained, could not reasonably be expected to result in a
Material Adverse Effect,);


 


(g) by
virtue of the execution and delivery by each Grantor of this Agreement, when
any Pledged Securities are delivered to the Collateral Agent (or, prior to the
Discharge of First Lien Obligations, to the First Lien Collateral Agent, acting
as a gratuitous bailee of the Collateral Agent) in accordance with this
Agreement, the Collateral Agent will obtain a legal, valid and perfected first
priority (subject to the Intercreditor Agreement) lien upon and security
interest in


 


11

















 


such Pledged Securities as security for the
payment and performance of the Obligations; and


 


(h) the
pledge effected hereby is effective to vest in the Collateral Agent, for the ratable
benefit of the Secured Parties, the rights of the Collateral Agent in the Pledged
Collateral as set forth herein and all action by any Grantor necessary or
desirable to protect and perfect the Lien on the Pledged Collateral has been
duly taken.


 


SECTION 3.04.
Certification of Limited Liability Company
Interests and Limited Partnership Interests. No interest of any Grantor in any
limited liability company or limited partnership which is a Subsidiary and
pledged hereunder is represented by a certificate. The Grantors shall not,
without the consent of the Administrative Agent, agree to any amendment of the
certificate of formation or limited liability company agreement (or other
comparable constituent document) governing Pledged Stock which has the effect
of turning previously uncertificated capital stock or membership interests into
certificated capital stock or membership interests or which elects to treat any
membership interest that is part of the Pledged Stock as a “security” under Section 8-103
of the New York UCC.


 


SECTION 3.05.
Registration in Nominee Name; Denominations. The Collateral Agent, on behalf of
the Secured Parties, at any time after the Discharge of First Lien Obligations,
shall have the right (in its sole and absolute discretion) to hold the Pledged
Securities in its own name as pledgee, the name of its nominee (as Pledgee or
as sub-agent) or the name of the applicable Grantor, endorsed or assigned in
blank or in favor of the Collateral Agent. Each Grantor will promptly give to
the Collateral Agent copies of any notices or other communications received by
it with respect to Pledged Securities in its capacity as the registered owner
thereof. The Collateral Agent shall at any time after the Discharge of First
Lien Obligations and during the occurrence and continuation of an Event of
Default have the right to exchange the certificates representing Pledged
Securities for certificates of smaller or larger denominations for any purpose
consistent with this Agreement.


 


SECTION 3.06.
Voting Rights; Dividends and
Interest, Etc.  (a) Unless and until an Event of Default
shall have occurred and be continuing and the Collateral Agent shall have given
the Grantors reasonable advance notice of its intent to exercise its rights
under this Agreement (which notice shall be deemed to have been given
immediately upon the occurrence of an Event of Default under paragraph (g) or
(h) of Article VII of the Credit Agreement):


 


(i)                               Each
Grantor shall be entitled to exercise any and all voting and/or other
consensual rights and powers inuring to an owner of Pledged Securities or any
part thereof for any purpose consistent with the terms of this Agreement, the
Credit Agreement and the other Loan Documents; provided,
however, that such rights and powers shall not be exercised in any
manner that could materially and adversely affect the rights inuring to a
holder of any Pledged Securities or the rights and remedies of any of the


 


12

















 


Collateral
Agent or the other Secured Parties under this Agreement or the Credit Agreement
or any other Loan Document or the ability of the Secured Parties to exercise
the same.


 


(ii)                            The
Collateral Agent shall execute and deliver to each Grantor, or cause to be
executed and delivered to each Grantor, all such proxies, powers of attorney
and other instruments as such Grantor may reasonably request for the purpose of
enabling such Grantor to exercise the voting and/or consensual rights and powers
it is entitled to exercise pursuant to paragraph (i) above.


 


(iii)                         Each
Grantor shall be entitled to receive and retain any and all dividends,
interest, principal and other distributions paid on or distributed in respect
of the Pledged Securities to the extent and only to the extent that such
dividends, interest, principal and other distributions are permitted by, and
otherwise paid or distributed in accordance with, the terms and conditions of
the Credit Agreement, the other Loan Documents and applicable law; provided, however, that any noncash dividends, interest,
principal or other distributions that would constitute Pledged Stock or Pledged
Debt Securities, whether resulting from a subdivision, combination or
reclassification of the outstanding Equity Interests of the issuer of any
Pledged Securities or received in exchange for Pledged Securities or any part
thereof, or in redemption thereof, or as a result of any merger, consolidation,
acquisition or other exchange of assets to which such issuer may be a party or
otherwise, shall be and become part of the Pledged Collateral, and, if received
by any Grantor, shall not be commingled by such Grantor with any of its other
funds or property but shall be held separate and apart therefrom, shall be held
in trust for the ratable benefit of the Secured Parties and shall be forthwith
delivered to the Collateral Agent (or, prior to the Discharge of First Lien
Obligations, to the First Lien Collateral Agent, acting as a gratuitous bailee
of the Collateral Agent) in the same form as so received (with any necessary
endorsement or instrument of assignment). This paragraph (iii) shall not
apply to dividends between or among the Borrower, the Guarantors and any
Subsidiaries only of property subject to a perfected security interest under this
Agreement; provided that the
Borrower notifies the Collateral Agent in writing, specifically referring to
this Section 3.06 at the time of such dividend and takes any actions the
Collateral Agent specifies to ensure the continuance of its perfected security
interest in such property under this Agreement.


 


(b) Upon the occurrence and during the
continuance of an Event of Default and in any case subject to the terms of the
Intercreditor Agreement, after the Collateral Agent shall have notified (or
shall be deemed to have notified pursuant to Section 3.06(a)) the Grantors
of the suspension of their rights under paragraph (a)(iii) of this Section 3.06,
then all rights of any Grantor to dividends, interest, principal or other
distributions that such Grantor is authorized to receive pursuant to paragraph
(a)(iii) of this Section 3.06


 


13

















 


shall cease, and all such rights shall thereupon become vested in the
Collateral Agent, which shall have the sole and exclusive right and authority
to receive and retain such dividends, interest, principal or other
distributions. All dividends, interest, principal or other
distributions received by any Grantor contrary to the provisions of this Section
3.06 shall be held in trust for the benefit of the Collateral Agent, shall be
segregated from other property or funds of such Grantor and, subject to the rights
of the First Lien Collateral Agent and the obligations of the Grantors under
the First Lien Loan Documents and the Intercreditor Agreement, shall be
forthwith delivered to the Collateral Agent upon demand in the same form as so
received (with any necessary endorsement or instrument of assignment). Any and
all money and other property paid over to or received by the Collateral Agent
pursuant to the provisions of this paragraph (b) shall be retained by the
Collateral Agent in an account to be established by the Collateral Agent upon receipt
of such money or other property and shall be applied in accordance with the
provisions of Section 5.02. After all Events of Default have been cured or
waived and each applicable Grantor has delivered to the Administrative Agent
certificates to that effect, the Collateral Agent shall, promptly after all
such Events of Default have been cured or waived, repay to each applicable
Grantor (without interest) all dividends, interest, principal or other
distributions that such Grantor would otherwise be permitted to retain pursuant
to the terms of paragraph (a)(iii) of this Section 3.06 and that
remain in such account.


 


(c)       Upon the occurrence and during the continuance
of an Event of Default, after the Collateral Agent shall have notified (or
shall be deemed to have notified pursuant to Section 3.06(a)) the Grantors
of the suspension of their rights under paragraph (a)(i) of this Section 3.06,
then all rights of any Grantor to exercise the voting and consensual rights and
powers it is entitled to exercise pursuant to paragraph (a)(i) of this Section 3.06,
and the obligations of the Collateral Agent under paragraph (a)(ii) of
this Section 3.06, shall cease, and all such rights shall thereupon
become, subject to the rights of the First Lien Collateral Agent and the
obligations of the Grantors under the First Lien Loan Documents and the
Intercreditor Agreement, vested in the Collateral Agent, which shall have the
sole and exclusive right and authority to exercise such voting and consensual
rights and powers; provided that,
unless otherwise directed by the Required Lenders, subject to the terms of the
Intercreditor Agreement, the Collateral Agent shall have the right from time to
time following and during the continuance of an Event of Default to permit the Grantors
to exercise such rights.


 


(d)      Any notice given by the Collateral Agent to the
Grantors exercising its rights under paragraph (a) of this Section 3.06
(i) may be given by telephone if promptly confirmed in writing, (ii) may
be given to one or more of the Grantors at the same or different times and (iii) may
suspend the rights of the Grantors under paragraph (a)(i) or paragraph (a)(iii) in
part without suspending all such rights (as specified by the Collateral Agent in
its sole and absolute discretion) and without waiving or otherwise affecting
the Collateral Agent’s rights to give additional notices from time to time suspending
other rights so long as an Event of Default has occurred and is continuing.


 


14

















 


ARTICLE IV 


 


Security Interests
in Personal Property


 


SECTION 4.01.
Security Interest.  (a) As security for the payment
or performance, as the case may be, in full of the Obligations, each Grantor
hereby assigns and pledges to the Collateral Agent, its successors and assigns,
for the ratable benefit of the Secured Parties, and hereby grants to the
Collateral Agent, its successors and assigns, for the ratable benefit of the
Secured Parties, a security interest (the “Security Interest”), in
all right, title or interest in or to any and all of the following assets and
properties 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 “Article 9 Collateral”):


 


(i)                                all
Accounts;


 


(ii)                             all
Chattel Paper;


 


(iii)                          all cash
and Deposit Accounts;


 


(iv)                         all
Documents;


 


(v)                            all
Equipment;


 


(vi)                         all
General Intangibles;


 


(vii)                      all
Instruments;


 


(viii)                   all Inventory;


 


(ix)                           all
Investment Property;


 


(x)                              all
Letter-of-Credit Rights;


 


(xi)                           all
Commercial Tort Claims;


 


(xii)                        all books
and records pertaining to the Article 9 Collateral; and


 


(xiii)                     to the extent
not otherwise included, all Proceeds 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.


 


Notwithstanding any provision in this
Agreement, this Section 4.01(a) shall not, at any time, constitute a
grant of security interest in an Excluded Asset.


 


(b) Each Grantor hereby irrevocably
authorizes the Collateral Agent at any time and from time to time to file in
any relevant jurisdiction any initial financing statements (including fixture
filings) with respect to the Article 9 Collateral or any part thereof and amendments
thereto that (i) indicate the Article 9
Collateral as “all assets” of


 


15

















 


such Grantor or words of similar effect, and (i) contain the information
required by Article 9 of the Uniform Commercial Code of each applicable
jurisdiction for the filing of any financing statement or amendment, including (A) whether
such Grantor is an organization, the type of organization and any
organizational identification number issued to such Grantor and (B) in the case
of a financing statement filed as a fixture filing, a sufficient description of
the real property to which such Article 9 Collateral relates. Each Grantor
agrees to provide such information to the Collateral Agent promptly upon
request.


 


Each Grantor
also ratifies its authorization for the Collateral Agent to file in any
relevant jurisdiction any initial financing statements or amendments thereto if
filed prior to the date hereof.


 


The Collateral
Agent is further authorized to file with the United States Patent and Trademark
Office or United States Copyright Office (or any successor office or any
similar office in any other country) such documents as may be necessary or advisable
for the purpose of perfecting, confirming, continuing, enforcing or protecting
the Security Interest granted by each Grantor, without the signature of any
Grantor, and naming any Grantor or the Grantors as debtors and the Collateral
Agent as secured party.


 


(c) The Security Interest is granted as
security only and shall not subject the Collateral Agent or any other Secured
Party to, or in any way alter or modify, any obligation or liability of any
Grantor with respect to or arising out of the Article 9 Collateral.


 


SECTION 4.02.
Representations and Warranties.
The Grantors jointly and severally represent and warrant to the
Collateral Agent and the Secured Parties that:


 


(a)      Each Grantor has good and
valid rights in and title to the Article 9 Collateral with respect to
which it has purported to grant a Security Interest hereunder and has full
power and authority to grant to the Collateral Agent, for the ratable benefit
of the Secured Parties, the Security Interest in such Article 9 Collateral
pursuant hereto and to execute, deliver and perform its obligations in
accordance with the terms of this Agreement, without the consent or approval of
any other person other than (i) any consent or approval that has been
obtained or (ii) those that, if not obtained, could not reasonably be
expected to result in a Material Adverse Effect.


 


(b)     The Perfection Certificate
has been duly prepared, completed and executed and the information set forth therein
(including (x) the exact legal name of each Grantor and (y) the
jurisdiction of organization of each Grantor) is correct and complete as of the
Closing Date. Uniform Commercial Code financing statements (including fixture
filings, as applicable) or other appropriate filings, recordings or
registrations containing a description of the Article 9 Collateral have
been prepared by the Collateral Agent based upon the information provided to
the Administrative Agent and the Secured Parties in the Perfection Certificate
for filing in each governmental, municipal or other office specified in Section 2
of the Perfection Certificate (or specified by notice from the Borrower to the


 


16

















 


Administrative
Agent after the Closing Date in the case of filings, recordings or registrations
required by Sections 5.06 or 5.11 of the Credit Agreement), which are all the
filings, recordings and registrations (other than filings required to be made
in the United States Patent and Trademark Office and the United States
Copyright Office in order to perfect the Security Interest in the Article 9
Collateral consisting of United States Patents, Trademarks and Copyrights) that
are necessary to publish notice of and protect the validity of and to establish
a legal, valid and perfected security interest in favor of the Collateral Agent
(for the ratable benefit of the Secured Parties) in respect of all Article 9
Collateral in which the Security Interest may be perfected by filing, recording
or registration in the United States (or any political subdivision thereof) and
its territories and possessions, and no further or subsequent filing, refiling,
recording, rerecording, registration or reregistration is necessary in any such
jurisdiction, except as provided under applicable law with respect to the
filing of continuation statements. Each Grantor represents and warrants that a
fully executed short form agreement in the form requested by the Collateral
Agent and containing a description of all material Article 9 Collateral
consisting of Intellectual Property with respect to United States Patents and United
States registered Trademarks (and Trademarks for which United States
registration applications are pending) and United States registered Copyrights
has been delivered to the Collateral Agent for recording by the United States
Patent and Trademark Office and the United States Copyright Office pursuant to
35 U.S.C. §261, 15 U.S.C. §1060 or 17 U.S.C. §205 and the regulations thereunder,
as applicable, and otherwise as may be required pursuant to the laws of any
other necessary jurisdiction, to protect the validity of and to establish a
legal, valid and perfected security interest in favor of the Collateral Agent
(for the ratable benefit of the Secured Parties) in respect of all Article 9
Collateral consisting of Patents, Trademarks and Copyrights in which a security
interest may be perfected by filing, recording or registration in the United
States (or any political subdivision thereof) and its territories and
possessions, and no further or subsequent filing, refiling, recording, rerecording,
registration or reregistration is necessary (other than such actions as are
necessary to perfect the Security Interest with respect to any Article 9
Collateral consisting of Patents, Trademarks and Copyrights (or registration or
application for registration thereof) acquired or developed after the date
hereof).


 


(c) The
Security Interest constitutes (i) a legal and valid security interest in
all Article 9 Collateral securing the payment and performance of the
Obligations, (ii) upon completion of the filings described in Section 4.02(b),
a perfected security interest in all Article 9 Collateral in which a
security interest may be perfected by filing, recording or registering a
financing statement or analogous document in the United States (or any
political subdivision thereof) and its territories and possessions pursuant to
the Uniform Commercial Code or other applicable law in such jurisdictions and (iii) a
security interest that shall be perfected in all Article 9 Collateral to
the extent that a security interest may be perfected upon the receipt and
recording of this Agreement with the United States Patent and Trademark Office
and the United States Copyright Office, as applicable. The Security Interest is
and shall be prior to any other Lien on any of


 


17

















 


the Article 9
Collateral, other than Liens expressly permitted pursuant to Section 6.02
of the Credit Agreement that have priority as a matter of law.


 


(d) The Article 9
Collateral is owned by the Grantors free and clear of any Lien, except for
Liens expressly permitted pursuant to Section 6.02 of the Credit
Agreement. As of the Closing Date, no Grantor has filed or consented to the
filing of (i) any financing statement or analogous document under the
Uniform Commercial Code or any other applicable laws covering any Article 9
Collateral, (ii) any assignment in which any Grantor assigns any
Collateral or any security agreement or similar instrument covering any Article 9
Collateral with the United States Patent and Trademark Office or the United
States Copyright Office, (iii) any notice under the Assignment of Claims Act,
or (iv) any assignment in which any Grantor assigns any Article 9
Collateral or any security agreement or similar instrument covering any Article 9
Collateral with any foreign governmental, municipal or other office, which
financing statement or analogous document, assignment, security agreement or
similar instrument is still in effect, except, in each case, for Liens
expressly permitted pursuant to Section 6.02 of the Credit Agreement and
prior existing Liens no longer in effect. No Grantor holds any Commercial Tort
Claims seeking damages in excess of $250,000 except as indicated on the
Perfection Certificate.


 


SECTION 4.03.
Covenants.  (a) Each Grantor agrees promptly to
notify the Collateral Agent in writing of any change in (i) its legal
name, (ii) its identity or type of organization or corporate structure, (iii) its
Federal Taxpayer Identification Number or organizational identification number
or (iv) its jurisdiction of organization. Each Grantor agrees promptly to
provide the Collateral Agent with certified organizational documents reflecting
any of the changes described in the first sentence of this paragraph. Each
Grantor agrees not to effect or permit any change referred to in the preceding sentence
unless all filings have been made under the Uniform Commercial Code or
otherwise that are required in order for the Collateral Agent to continue at
all times following such change to have a valid, legal and perfected first
priority (subject to the Intercreditor Agreement) security interest in all the Article 9
Collateral. Each Grantor agrees promptly to notify the Collateral Agent if any
material portion of the Article 9 Collateral owned or held by such Grantor
is damaged or destroyed.


 


(b) Each Grantor agrees to maintain, at
its own cost and expense, such complete and accurate records with respect to
the Article 9 Collateral owned by it as is consistent with its current
practices and in accordance with such prudent and standard practices used in
industries that are the same as or similar to those in which such Grantor is
engaged, but in any event to include complete accounting records indicating all
payments and proceeds received with respect to any material part of the Article 9
Collateral, and, at such time or times as the Collateral Agent may reasonably
request, promptly to prepare and deliver to the Collateral Agent a duly
certified schedule or schedules in form and detail reasonably satisfactory to
the Collateral Agent showing the identity, amount and location of any material Article 9
Collateral, provided that,  unless
an Event of Default has occurred and is continuing, the Collateral Agent shall
be limited to one such requests in each calendar year.


 


18














 


(c) Each
Grantor shall, at its own expense, take any and all actions reasonably
necessary to defend title to the Article 9 Collateral against all persons
and to defend the Security
Interest of the Collateral Agent in the Article 9 Collateral and the priority
thereof against any Lien not expressly permitted pursuant to Section 6.02
of the Credit Agreement.


 


(d) Each Grantor
agrees, at its own expense, promptly to execute, acknowledge, deliver and cause
to be duly filed all such further instruments and documents and take all such
actions as the Collateral Agent may from time to time reasonably request to
better assure, obtain, preserve, protect and perfect the Security Interest and
the rights and remedies created hereby, including the payment of any fees and Taxes
required in connection with the execution and delivery of this Agreement, the
granting of the Security Interest and the filing of any financing or
continuation statements (including fixture filings) or other documents in
connection herewith or therewith. If any amount payable to any Grantor under or
in connection with any of the Article 9 Collateral shall be or become
evidenced by any Instrument or Tangible Chattel Paper, in excess of $250,000
individually or $500,000 in the aggregate, then such Instrument or Tangible
Chattel Paper shall be promptly pledged and delivered to the Collateral Agent,
duly endorsed in a manner satisfactory to the Collateral Agent, except to the
extent the costs of such actions are, in the Collateral Agent’s reasonable
judgment, excessive in relation to the value of the security to be afforded
thereby or to the extent prohibited by applicable law (or in the case of an
amount payable by any Foreign Subsidiary, to the extent such actions would, in
the Borrower’s good faith determination, result in adverse tax consequences); provided that prior to the Discharge of
First Lien Obligations, such delivery shall be made to the First Lien
Collateral Agent, acting as a gratuitous bailee of the Collateral Agent.


 


Without limiting the generality
of the foregoing, each Grantor hereby authorizes the Collateral Agent, with
prompt notice thereof to the Grantors, to supplement this Agreement by
supplementing Schedule III or adding additional schedules hereto to identify
specifically any asset or item of a Grantor that may, in the Collateral Agent’s
reasonable judgment, constitute material Copyrights, Licenses, Patents or
Trademarks; provided that any
Grantor shall have the right, exercisable within 10 days after it has been
notified by the Collateral Agent of the specific identification of such
Collateral, to advise the Collateral Agent in writing of any material
inaccuracy of the representations and warranties made by such Grantor hereunder
with respect to such Collateral. Each Grantor agrees that it will use its
commercially reasonable efforts to take such action as shall be necessary in
order that all representations and warranties hereunder shall be true and
correct in all material respects with respect to such Collateral within 30 days
after the date it has been notified by the Collateral Agent of the specific
identification of such Collateral.


 


(e) Subject to the
terms of the Intercreditor Agreement, the Collateral Agent and such persons as
the Collateral Agent may designate shall have the right, at the applicable
Grantor’s own cost and expense, to inspect the Article 9 Collateral, all
records related thereto (and to make extracts and copies from such records) and
the premises upon which any of the Article 9 Collateral is located, to
discuss the applicable Grantor’s affairs with the officers of such Grantor and
its independent accountants and to verify the


 


19

















 


existence, validity, amount, quality, quantity, value, condition and
status of, or any other matter relating to, the Article 9 Collateral,
including, in the case of Accounts or other Article 9 Collateral in the
possession of any third person, by contacting Account Debtors or the third
person possessing such Article 9 Collateral for the purpose of making such
a verification. The Collateral Agent shall have the absolute right to share any
information it gains from such inspection or verification with any Secured
Party.


 


(f) At its option
upon, the occurrence and continuance of an Event of Default, the Collateral
Agent may discharge past due Taxes, assessments, charges, fees, Liens, security
interests or other encumbrances at any time levied or placed on the Article 9
Collateral and not expressly permitted pursuant to Section 5.03 or Section 6.02
of the Credit Agreement, and may pay for the maintenance and preservation of
the Article 9 Collateral to the extent any Grantor fails to do so as
required by the Credit Agreement or this Agreement, and each Grantor jointly
and severally agrees to reimburse the Collateral Agent on demand for any
reasonable and documented payment made or any expense incurred by the
Collateral Agent pursuant to the foregoing authorization; provided, however, that nothing in this
paragraph shall be interpreted as excusing any Grantor from the performance of,
or imposing any obligation on the Collateral Agent or any Secured Party to cure
or perform, any covenants or other promises of any Grantor with respect to
Taxes, assessments, charges, fees, Liens, security interests or other
encumbrances and maintenance as set forth herein or in the other Loan
Documents.


 


(g) If at any time
any Grantor shall take a security interest in any property of an Account Debtor
or any other person to secure payment and performance of an Account, the value
of which exceeds $250,000 individually or $500,000 in the aggregate, such
Grantor shall promptly assign such security interest to the Collateral Agent
for the ratable benefit of the Secured Parties. Such assignment need not be
filed of public record unless necessary to continue the perfected status of the
security interest against creditors of and transferees from the Account Debtor
or other person granting the security interest


 


(h) Each Grantor shall remain liable to observe and
perform all the material conditions and obligations to be observed and
performed by it under each contract, agreement or instrument relating to the Article 9
Collateral, all in accordance with the terms and conditions thereof, and each
Grantor jointly and severally agrees to indemnify and hold harmless the
Collateral Agent and the Secured Parties from and against any and all liability
for such performance.


 


(i) No Grantor shall make or permit to be made an
assignment, pledge or hypothecation of the Article 9 Collateral or shall
grant any other Lien in respect of the Article 9 Collateral or permit any
notice to be filed under the Assignment of Claims Act, except, in each case, as
expressly permitted by Section 6.02 of the Credit Agreement. No Grantor
shall make or permit to be made any transfer of the Article 9 Collateral
and each Grantor shall remain at all times in possession or otherwise in
control of the Article 9 Collateral owned by it, except as permitted by
the Credit Agreement.


 


(j) No Grantor will, without the Collateral Agent’s prior written
consent, grant any extension of the time of payment of any Accounts included in
the Article 9


 


20

















 


Collateral, compromise,
compound or settle the same for less than the full amount thereof, release,
wholly or partly, any person liable for the payment thereof or allow any credit
or discount whatsoever thereon, other than extensions, credits, discounts,
compromises, compoundings or settlements granted or made in the ordinary course
of business and consistent with its current practices and in accordance with
such prudent and standard practice used in industries that are the same as or
similar to those in which such Grantor is engaged.


 


(k) In the
event that any Grantor at any time or times shall fail to obtain or maintain
any of the policies of insurance required under the Credit Agreement or to pay
any premium in whole or part relating thereto, the Collateral Agent may,
without waiving or releasing any obligation or liability of any Grantor
hereunder or any Default or Event of Default and subject to the Intercreditor
Agreement, in its sole discretion, obtain and maintain such policies of
insurance and pay such premium and take any other actions with respect thereto
as the Collateral Agent deems advisable. All sums disbursed by the Collateral
Agent in connection with this paragraph, including attorneys’ fees, court
costs, expenses and other charges relating thereto, shall be payable, upon
demand, by the Grantors to the Collateral Agent and shall be additional
Obligations secured hereby.


 


(l) Each
Grantor shall maintain, in form and manner satisfactory to the Collateral Agent,
records of its Chattel Paper and its books, records and documents evidencing or
pertaining thereto.


 


SECTION 4.04.
Other Actions.  In order to further insure the attachment,
perfection and priority of, and the ability of the Collateral Agent to enforce,
the Security Interest in the Article 9 Collateral, each Grantor agrees, in
each case at such Grantor’s own expense, to take the following actions with
respect to the following Article 9 Collateral:


 


(a) Instruments.  If any Grantor shall at any time hold or
acquire any Instruments having a value in excess of $250,000, such Grantor
shall forthwith endorse, assign and deliver the same to the Collateral Agent
(or, prior to the Discharge of First Lien Obligations, to the First Lien
Collateral Agent as a gratuitous bailee of the Collateral Agent), accompanied
by such undated instruments of endorsement, transfer or assignment duly executed
in blank as the Collateral Agent may from time to time reasonably specify,
except to the extent the costs of such actions are, in the Collateral Agent’s
reasonable judgment, excessive in relation to the value of the security to be
afforded thereby or to the extent prohibited by applicable law (or in the case
of an amount payable by any Foreign Subsidiary, to the extent such actions
would, in the Borrower’s good faith determination, result in adverse tax
consequences).


 


(b) Deposit  Accounts.  For each Deposit Account that any Grantor at any time opens or maintains, other
than Deposit Accounts (A) that are payroll accounts, withholdings tax
accounts, petty cash accounts or flexible spending benefit accounts or trust,
escrow or other fiduciary accounts or (B) which do not hold for any period
of five consecutive days, an aggregate amount in excess of


 


21

















 


$1,000,000, such
Grantor shall, upon the Collateral Agent’s request, either (i) cause the
depositary bank to agree to comply at any time with instructions from the
Collateral Agent (or, prior to the Discharge of First Lien Obligations, the
First Lien Collateral Agent) to such depositary bank directing the disposition
of funds from time to time credited to such Deposit Account, without further
consent of such Grantor or any other person, pursuant to an agreement in form
and substance satisfactory to the Collateral Agent, or (ii) arrange for
the Collateral Agent (or, prior to the Discharge of First Lien Obligations, the
First Lien Collateral Agent) to become the customer of the depositary bank with
respect to the Deposit Account, with the Grantor being permitted, only with the
consent of the Collateral Agent, to exercise rights to withdraw funds from such
Deposit Account. The Collateral Agent agrees with each Grantor that the
Collateral Agent shall not give any such instructions or withhold any
withdrawal rights from any Grantor, unless an Event of Default has occurred and
is continuing, or, after giving effect to any withdrawal, would occur; provided, however, upon the waiver by the applicable Required Lenders of such
Event of Default, so long as no other Event of Default shall then exist or be
continuing, the Collateral Agent shall revoke any such instruction. The
provisions of this paragraph shall not apply to any Deposit Account for which
any Grantor, the depositary bank and the Collateral Agent have entered into a
cash collateral agreement specially negotiated among such Grantor, the
depositary bank and the Collateral Agent for the specific purpose set forth
therein.


 


(c) Investment
Property.  If any
securities, whether certificated or uncertificated, or other Investment
Property having a value in excess of $50,000 in the aggregate now or hereafter
acquired by any Grantor are held by such Grantor or its nominee through a
Securities Intermediary or Commodity Intermediary, such Grantor shall promptly
notify the Collateral Agent thereof and, at the Collateral Agent’s request and
option, pursuant to an agreement in form and substance reasonably satisfactory
to the Collateral Agent, either (i) cause such Securities Intermediary or
Commodity Intermediary, as the case may be, to agree to comply with Entitlement
Orders from the Collateral Agent (or, prior to the Discharge of First Lien
Obligations, the First Lien Collateral Agent) to such Securities Intermediary
as to such securities or other Investment Property, or (as the case may be) to
apply any value distributed on account of any commodity contract as directed by
the Collateral Agent to such Commodity Intermediary, in each case without
further consent of any Grantor or such nominee, or (ii) in the case of
Financial Assets (as governed by Article 8 of the New York UCC) or other
Investment Property held through a Securities Intermediary, arrange for the
Collateral Agent (or, prior to the Discharge of First Lien Obligations, the
First Lien Collateral Agent) to become the Entitlement Holder with respect to
such Investment Property, with the Grantor being permitted, only with the
consent of the Collateral Agent, to exercise rights to withdraw or otherwise
deal with such Investment Property. The Collateral Agent agrees with each
Grantor that the Collateral Agent shall not give any such Entitlement Orders or
instructions or directions to any such issuer, Securities Intermediary or
Commodity Intermediary, and shall not withhold its consent to the exercise of
any withdrawal or dealing


 


22

















 


rights by any
Grantor, unless an Event of Default has occurred and is continuing, or, after
giving effect to any such investment and withdrawal rights would occur; provided, however, upon the waiver by the applicable Required Lenders of such
Event of Default, so long as no other Event of Default shall then exist or be
continuing, the Collateral Agent shall revoke any such instruction. The
provisions of this paragraph shall not apply to any Financial Assets credited
to a Securities Account for which the Collateral Agent is the Securities
Intermediary.


 


(d) Electronic
Chattel Paper and Transferable Records.  If any Grantor at any time holds or
acquires an interest in any Electronic Chattel Paper or any “transferable
record”,  as
that term is defined in Section 201 of the Federal Electronic Signatures in
Global and National Commerce Act, or in Section 16 of the Uniform
Electronic Transactions Act as in effect in any relevant jurisdiction, such
Grantor shall promptly notify the Collateral Agent thereof and, at the request
of the Collateral Agent, shall take such action as the Collateral Agent may
request to vest in the Collateral Agent (or, prior to the Discharge of First
Lien Obligations, the First Lien Collateral Agent) control under New York UCC Section 9-105
of such Electronic Chattel Paper or control under Section 201 of the
Federal Electronic Signatures in Global and National Commerce Act or, as the
case may be, Section 16 of the Uniform Electronic Transactions Act, as so
in effect in such jurisdiction, of such transferable record. The Collateral
Agent agrees with such Grantor that the Collateral Agent will arrange, pursuant
to procedures satisfactory to the Collateral Agent and so long as such
procedures will not result in the Collateral Agent’s loss of control, for the
Grantor to make alterations to the Electronic Chattel Paper or transferable
record permitted under UCC Section 9-105 or, as the case may be, Section 201
of the Federal Electronic Signatures in Global and National Commerce Act or Section 16
of the Uniform Electronic Transactions Act for a party in control to allow
without loss of control, unless an Event of Default has occurred and is
continuing or would occur after taking into account any action by such Grantor
with respect to such Electronic Chattel Paper or transferable record.


 


(e) Letter-of-Credit
Rights.  If any
Grantor is at any time a beneficiary under a letter of credit having a value in
excess of $500,000, now or hereafter issued in favor of such Grantor (other
than Letters of Credit and Letters of Credit Rights that do not constitute
Supporting Obligations in respect of other Collateral), such Grantor shall
promptly notify the Collateral Agent thereof and, at the request and option of
the Collateral Agent, and subject to the rights of the First Lien Collateral
Agent and the Obligations of the Grantors under the First Lien Loan Documents
and the Intercreditor Agreement, such Grantor shall, pursuant to an agreement
in form and substance satisfactory to the Collateral Agent, either (i) arrange
for the issuer and any confirmer of such letter of credit to consent to an
assignment to the Collateral Agent of the proceeds of any drawing under the
letter of credit or (ii) arrange for the Collateral Agent to become the
transferee beneficiary of the letter of credit, with the Collateral Agent agreeing,
in each case, that the proceeds of any drawing under the letter of credit are
to be paid to the applicable Grantor unless an Event of Default has occurred or
is continuing.


 


23

















 


(f) Commercial
Tort Claims.  If
any Grantor shall at any time hold or acquire a Commercial Tort Claim seeking
damages in an amount reasonably estimated to exceed $250,000, the Grantor shall
promptly notify the Collateral Agent thereof in a writing signed by such
Grantor including a summary description of such claim and grant to the
Collateral Agent, for the ratable benefit of the Secured Parties, in such
writing a security interest therein and in the proceeds thereof, all upon the
terms of this Agreement, with such writing to be in form and substance
satisfactory to the Collateral Agent.


 


SECTION 4.05.
Covenants Regarding Patent, Trademark
and Copyright Collateral.  (a) Each
Grantor agrees that it will not, and will not permit any of its licensees to,
do any act, or omit to do any act, whereby any Patent that is material to the
conduct of such Grantor’s business may become abandoned, invalidated or
dedicated to the public, and agrees that it shall use commercially reasonable
efforts to continue to mark any products covered by a material Patent with the
relevant patent number as necessary and sufficient to establish and preserve
its maximum rights under applicable patent laws.


 


(b)  Except as could not reasonably
be expected to result in a Material Adverse Effect, each Grantor (either itself
or through its licensees or its sublicensees) will, for each Trademark material
to the conduct of such Grantor’s business, (i) maintain such Trademark in full force free from any
claim of abandonment or invalidity for non-use, (ii) use commercially
reasonable efforts to maintain the quality of products and services offered
under such Trademark, (iii) display such Trademark with notice of Federal or
foreign registration to the extent necessary and sufficient to establish and
preserve its maximum rights under applicable law and (iv) not knowingly
use or knowingly permit the use of such Trademark in violation of any third
party rights.


 


(c)  Each Grantor (either itself
or through its licensees or sublicensees) will, for each work covered by a Copyright
material to the conduct of such Grantor’s business, continue to publish,
reproduce, display, adopt and distribute the work with appropriate copyright
notice as necessary and sufficient to establish and preserve its maximum rights
under applicable copyright laws.


 


(d)  Each Grantor shall notify the
Collateral Agent promptly if it knows or has reason to know that any Patent, Trademark
or Copyright material to the conduct of its business may become abandoned, lost
or dedicated to the public, or of any adverse determination or development (including
the institution of, or any such determination or development in, any proceeding
in the United States Patent and Trademark Office, United States Copyright
Office or any court or similar office of any country) regarding such Grantor’s
ownership of any Patent, Trademark or Copyright, its right to register the
same, or its right to keep and maintain the same.


 


(e)  Except as could not
reasonably be expected to result in a Material Adverse Effect, no Grantor
shall, either itself or through any agent, employee, licensee or designee, file
an application for any Patent, Trademark or Copyright (or for the registration
of any Trademark or Copyright) with the United States Patent and Trademark
Office,


 


24

















 


United States Copyright
Office or any office or agency in any political subdivision of the United
States or in any other country or any political subdivision thereof, unless it
promptly notifies the Collateral Agent, and, upon request of the Collateral
Agent, executes and delivers any and all agreements, instruments, documents and
papers as the Collateral Agent may request to evidence the Security Interest in
such Patent, Trademark or Copyright, and each Grantor hereby appoints the Collateral
Agent as its attorney-in-fact to execute and file such writings for the
foregoing purposes, all acts of such attorney being hereby ratified and
confirmed; such power, being coupled with an interest, is irrevocable.


 


(f)  Except as could not reasonably
be expected to result in a Material Adverse Effect, each Grantor will take all
necessary steps that are consistent with the practice in any proceeding before
the United States Patent and Trademark Office, United States Copyright Office
or any office or agency in any political subdivision of the United States or in
any other country or any political subdivision thereof, to maintain and pursue
each material application relating to the Patents, Trademarks and/or Copyrights
(and to obtain the relevant grant or registration) and to maintain each issued
Patent and each registration of the Trademarks and Copyrights that is material
to the conduct of any Grantor’s business, including timely filings of
applications for renewal, affidavits of use, affidavits of incontestability and
payment of maintenance fees, and, if consistent with good business judgment, to
initiate opposition, interference and cancellation proceedings against third
parties.


 


(g) In the event that any Grantor
knows or has reason to believe that any Article 9 Collateral consisting of
a Patent, Trademark or Copyright material to the conduct of any Grantor’s
business has been or is about to be infringed, misappropriated or diluted by a
third person, such Grantor promptly shall notify the Collateral Agent and
shall, if consistent with good business judgment, promptly sue for
infringement, misappropriation or dilution and to recover any and all damages
for such infringement, misappropriation or dilution, and take such other
actions as are appropriate under the circumstances to protect such Article 9
Collateral.


 


(h) Upon the
occurrence and during the continuance of an Event of Default, each Grantor
shall use its commercially reasonable efforts to obtain all requisite consents
or approvals by the licensor of each Copyright License, Patent License or Trademark
License, and each other material License, to effect the assignment of all such
Grantor’s right, title and interest thereunder to the Collateral Agent, for the
ratable benefit of the Secured Parties, or its designee.


 


SECTION 4.06. Assignment
of Distributions. 
The Borrower shall execute the Assignment of
Distributions in the form attached hereto as Exhibit C in favor of the
Collateral Agent with respect to its rights to any distributions of STR-Registrar
LLC.


 


25

















 


ARTICLE V 


 


Remedies


 


SECTION 5.01.
Remedies Upon Default.  Upon the occurrence and during the
continuance of an Event of Default, each Grantor agrees to deliver each item of
Collateral to the Collateral Agent on demand, and it is agreed that the
Collateral Agent shall have the right to take any of or all the following
actions at the same or different times: (a) with respect to any Article 9
Collateral consisting of Intellectual Property, on demand, to cause the
Security Interest to become an assignment, transfer and conveyance of any of or
all such Article 9 Collateral by the applicable Grantor to the Collateral
Agent, or to license or sublicense, whether general, special or otherwise, and
whether on an exclusive or nonexclusive basis, any such Article 9
Collateral throughout the world on such terms and conditions and in such manner
as the Collateral Agent shall determine (other than in violation of any
then-existing licensing arrangements to the extent that waivers cannot be
obtained), and (b) with or without legal process and with or without prior
notice (except any notice required by law) or demand for performance, to take
possession of the Article 9 Collateral and without liability for trespass to
enter any premises where the Article 9 Collateral may be located for the
purpose of taking possession of or removing the Article 9 Collateral and,
generally, to exercise any and all rights afforded to a secured party under the
Uniform Commercial Code or other applicable law. Without limiting the
generality of the foregoing, each Grantor agrees that the Collateral Agent
shall have the right, subject to the mandatory requirements of applicable law,
to sell or otherwise dispose of all or any part of the Collateral at a public
or private sale or at any broker’s board or on any securities exchange, for
cash, upon credit or for future delivery as the Collateral Agent shall deem
appropriate. The Collateral Agent shall be authorized at any such sale (if it
deems it advisable to do so) to restrict the prospective bidders or purchasers
to persons who will represent and agree that they are purchasing the Collateral
for their own account for investment and not with a view to the distribution or
sale thereof, and upon consummation of any such sale the Collateral Agent shall
have the right to assign, transfer and deliver to the purchaser or purchasers
thereof the Collateral so sold. Each such purchaser at any such sale shall hold
the property sold absolutely, free from any claim or right on the part of any
Grantor, and each Grantor hereby waives (to the extent permitted by law) all
rights of redemption, stay and appraisal which such Grantor now has or may at
any time in the future have under any rule of law or statute now existing
or hereafter enacted.


 


The Collateral
Agent shall give each applicable Grantor 10 days’ written notice (which each
Grantor agrees is reasonable notice within the meaning of Section 9-611 of
the New York UCC or its equivalent in other jurisdictions) of the Collateral
Agent’s intention to make any sale of Collateral. Such notice, in the case of a
public sale, shall state the time and place for such sale and, in the case of a
sale at a broker’s board or on a securities exchange, shall state the board or
exchange at which such sale is to be made and the day on which the Collateral,
or portion thereof, will first be offered for sale at such board or exchange.
Any such public sale shall be held at such time or times within ordinary
business hours and at such place or places as the Collateral Agent may fix and
state in the notice (if any) of such sale. 
At any such sale, the


 


26

















 


Collateral, or portion
thereof, to be sold may be sold in one lot as an entirety or in separate
parcels, as the Collateral Agent may (in its sole and absolute discretion) determine. The Collateral Agent shall not be
obligated to make any sale of any Collateral if it shall determine not
to do so, regardless of the fact that notice of sale of such Collateral shall
have been given. The Collateral Agent may, without notice or publication,
adjourn any public or private sale or cause the same to be adjourned from time
to time by announcement at the time and place fixed for sale, and such sale may,
without further notice, be made at the time and place to which the same was so
adjourned. In case any sale of all or any part of the Collateral is made on credit
or for future delivery, the Collateral
so sold may be retained by the Collateral Agent until the sale price is
paid by the purchaser or purchasers thereof, but the Collateral Agent shall not
incur any liability in case any such purchaser or purchasers shall fail to take
up and pay for the Collateral so sold and, in case of any such failure, such
Collateral may be sold again upon like notice. At any public (or, to the extent
permitted by law, private) sale made pursuant to this Agreement, any Secured
Party may bid for or purchase, free (to the extent permitted by applicable law)
from any right of redemption, stay, valuation or appraisal on the part of any
Grantor (all said rights being also hereby waived and released to the extent
permitted by applicable law), the Collateral or any part thereof offered for
sale and may make payment on account thereof by using any claim then due and
payable to such Secured Party from any Grantor as a credit against the purchase
price, and such Secured Party may, upon compliance with the terms of sale,
hold, retain and dispose of such property without further accountability to any
Grantor therefor. For purposes hereof, a written agreement to purchase the
Collateral or any portion thereof shall be treated as a sale thereof; the
Collateral Agent shall be free to carry out such sale pursuant to such
agreement and no Grantor shall be entitled to the return of the Collateral or
any portion thereof subject thereto, subject to Section 5.02 of this
Agreement, notwithstanding the fact that after the Collateral Absent shall have
entered into such an agreement all Events of Default shall have been remedied
and the Obligations paid in full. As an alternative to exercising the power of
sale herein conferred upon it, the Collateral Agent may proceed by a suit or
suits at law or in equity to foreclose this Agreement and to sell the
Collateral or any portion thereof pursuant to a judgment or decree of a
court or courts having competent jurisdiction or pursuant to a proceeding by a
court-appointed receiver. Any sale pursuant to the provisions of this Section 5.01
shall be deemed to conform to the commercially reasonable standards as provided
in Section 9-610(b) of the New York UCC or its equivalent in other
jurisdictions.


 


Any remedies
provided in this Section 5.01 shall be subject to the Intercreditor
Agreement.


 


SECTION 5.02.
Application of Proceeds.  Subject to the Intercreditor Agreement,
the Collateral Agent shall apply the proceeds of any collection, sale,
foreclosure or other realization upon any Collateral, including any Collateral
consisting of cash, as follows:


 


FIRST, to the payment of all costs and expenses incurred by the
Administrative Agent or the Collateral Agent (in their respective capacities as
such hereunder or under any other Loan Document) in connection with such


 


27

















 


Collection, sale,
foreclosure or realization or otherwise in connection with this Agreement, any
other Loan Document or any of the Obligations, including all court costs and
the fees and expenses of its agents and legal counsel, the repayment of all
advances made by the Administrative Agent and/or the Collateral Agent hereunder
or under any other Loan Document on behalf of any Grantor and any other costs
or expenses incurred in connection with the exercise of any right or remedy
hereunder or under any other Loan Document;


 


SECOND, to the payment in full of Unfunded Advances (the amounts so
applied to be distributed between or among the Secured Parties pro rata in
accordance with the amounts of Unfunded Advances owed to them on the date of
any such distribution);


 


THIRD, to the payment in full of all other Obligations (the amounts so
applied to be distributed among the Secured Parties pro rata in accordance with
the amounts of the Obligations owed to them on the date of any such
distribution);


 


FOURTH, to the Grantors, their successors or assigns, or as a court of
competent jurisdiction may otherwise direct.


 


The Collateral
Agent shall have absolute discretion as to the time of application of any such
proceeds, moneys or balances in accordance with this Agreement. Upon any sale
of Collateral by the Collateral Agent (including pursuant to a power of sale
granted by statute or under a judicial proceeding), the receipt of the
Collateral Agent or of the officer making the sale shall be a sufficient
discharge to the purchaser or purchasers of the Collateral so sold and such
purchaser or purchasers shall not be obligated to see to the application of any
part of the purchase money paid over to the Collateral Agent or such officer or
be answerable in any way for the misapplication thereof.


 


SECTION 5.03.
Grant of License to Use Intellectual
Property.  For the purpose of enabling the
Collateral Agent to exercise rights and remedies under this Agreement at such time as the Collateral Agent
shall be lawfully entitled to exercise such rights and remedies, each Grantor
hereby grants to the Collateral Agent an irrevocable, nonexclusive license
(exercisable without payment of royalty or other compensation to the Grantors),
to use, license or sublicense any of the Article 9 Collateral consisting
of Intellectual Property now owned or hereafter acquired by such Grantor, and
wherever the same may be located, and including in such license access to all
media in which any of the licensed items may be recorded or stored and to all
computer software and programs used for the compilation or printout thereof.
The use of such license by the Collateral Agent may be exercised, at the option
of the Collateral Agent, only upon the occurrence and during the continuation
of an Event of Default; provided, however, that any license, sublicense or
other transaction entered into by the Collateral Agent in accordance herewith
shall be binding upon each Grantor notwithstanding any subsequent cure of an
Event of Default.


 


SECTION 5.04.
Securities Act, Etc.  In
view of the position of the Grantors in relation to the Pledged Collateral, or
because of other current or future


 


28

















 


circumstances, a question
may arise under the U.S. Securities Act of 1933, as now or hereafter in effect,
or any similar statute hereafter enacted analogous in purpose or effect (such
Act and any such similar statute as from time to time in effect being called
the “Federal Securities Laws”)  with
respect to any disposition of the Pledged Collateral permitted hereunder. Each
Grantor understands that compliance with the Federal Securities Laws might very
strictly limit the course of conduct of the Collateral Agent if the Collateral
Agent were to attempt to dispose of all or any part of the Pledged Collateral,
and might also limit the extent to which or the manner in which any subsequent
transferee of any Pledged Collateral could dispose of the same. Similarly,
there may be other legal restrictions or limitations affecting the Collateral
Agent in any attempt to dispose of all or part of the Pledged Collateral under
applicable “blue sky” or other state securities laws or similar laws analogous
in purpose or effect. Each Grantor recognizes that in light of such
restrictions and limitations the Collateral Agent may, with respect to any sale
of the Pledged Collateral, limit the purchasers to those who will agree, among
other things, to acquire such Pledged Collateral for their own account, for
investment, and not with a view to the distribution or resale thereof. Each
Grantor acknowledges and agrees that in light of such restrictions and
limitations, the Collateral Agent, in its sole and absolute discretion (subject
to the Intercreditor Agreement) (a) may proceed to make such a sale
whether or not a registration statement for the purpose of registering such
Pledged Collateral or part thereof shall have been filed under the Federal
Securities Laws and (b) may approach and negotiate with a limited number
of potential purchasers (including a single potential purchaser) to effect such
sale. Each Grantor acknowledges and agrees that any such sale might result in
prices and other terms less favorable to the seller than if such sale were a
public sale without such restrictions. In the event of any such sale, the
Collateral Agent shall incur no responsibility or liability for selling all or
any part of the Pledged Collateral at a price that the Collateral Agent, in its
sole and absolute discretion (subject to the terms of the Intercreditor
Agreement), may in good faith deem reasonable under the circumstances,
notwithstanding the possibility that a substantially higher price might have
been realized if the sale were deferred until after registration as aforesaid
or if more than a limited number of purchasers (or a single purchaser) were
approached. The provisions of this Section 5.04 will apply notwithstanding
the existence of a public or private market upon which the quotations or sales
prices may exceed substantially the price at which the Collateral Agent sells.


 


ARTICLE VI 


 


Indemnity, Subrogation and
Subordination


 


SECTION 6.01.
Indemnity and Subrogation.  In addition to all such rights of
indemnity and subrogation as the Guarantors may have under applicable law (but
subject to Section 6.03), the Borrower agrees that (a) in the event a
payment shall be made by any Guarantor under this Agreement, the Borrower shall
indemnify such Guarantor for the full amount of such payment and such Guarantor
shall be subrogated to the rights of the person to whom such payment shall have
been made to the extent of such payment and (b) in the event any assets of
any Guarantor shall be sold pursuant to this Agreement or any other Security
Document to satisfy in whole or in part a claim of any


 


29

















 


Secured Party, the
Borrower shall indemnify such Guarantor in an amount equal to the greater of
the book value or the fair market value of the assets so sold.


 


SECTION 6.02.
Contribution and Subrogation.  Each Guarantor (a “Contributing Guarantor”) agrees (subject to Section 6.03) that, in the event a
payment shall be made by any other Guarantor hereunder in respect of any
Obligation, or assets of any other Guarantor shall be sold pursuant to any
Security Document to satisfy any Obligation owed to any Secured Party, and such
other Guarantor (the “Claiming Guarantor”) shall not have been fully
indemnified by the Borrower as provided in Section 6.01, the Contributing
Guarantor shall indemnify the Claiming Guarantor in an amount equal to (i) the
amount of such payment or (ii) the greater of the book value or the fair
market value of such assets, as the case may be, in each case multiplied by a
fraction of which the numerator shall be the net worth of the Contributing
Guarantor on the date hereof and the denominator shall be the aggregate net
worth of all the Guarantors on the date hereof (or, in the case of any
Guarantor becoming a party hereto pursuant to Section 7.16, the date of
the supplement hereto executed and delivered by such Guarantor). Any Contributing
Guarantor making any payment to a Claiming Guarantor pursuant to this Section 6.02
shall be subrogated to the rights of such Claiming Guarantor under Section 6.01
to the extent of such payment.


 


SECTION 6.03.
Subordination.  (a) Notwithstanding any provision of
this Agreement to the contrary, all rights of the Guarantors under Sections 6.01
and 6.02 and all other rights of indemnity, contribution or subrogation under
applicable law or otherwise shall be fully subordinated to the indefeasible
payment in full in cash of the Obligations. No failure on the part of the
Borrower or any Guarantor to make the payments required by Sections 6.01 and
6.02 (or any other payments required under applicable law or otherwise) shall
in any respect limit the obligations and liabilities of any Guarantor with
respect to its obligations hereunder, and each Guarantor shall remain liable
for the full amount of its obligations hereunder.


 


(b) The
Borrower and each Guarantor hereby agree that all Indebtedness and other monetary
obligations owed by it to any Subsidiary that is not a Loan Party (or, in the
case of the Borrower, any Subsidiary) shall be fully subordinated to the
indefeasible payment in full in cash of the Obligations, it being agreed that,
for greater certainty, other than upon the occurrence and during the
continuance of an Event of Default, the Borrower and each Guarantor shall be
allowed to make payments with respect to Indebtedness permitted to be incurred
pursuant to Section 6.01 of the Credit Agreement in accordance with the
terms thereof.


 


ARTICLE VII 


 


Miscellaneous


 


SECTION 7.01.
Notices.  All communications and notices hereunder
shall (except as otherwise expressly permitted herein) be in writing and given
as provided in Section 9.01 of the Credit Agreement. All communications
and notices hereunder to any


 


30

















 


Subsidiary Guarantor
shall be given to it in care of the Borrower as provided in Section 9.01
of the Credit Agreement.


 


SECTION 7.02.
Security Interest Absolute.  All rights of the Collateral Agent
hereunder, the Security Interest, the grant of a security interest in the Pledged
Collateral and all obligations of each Grantor hereunder shall be absolute and
unconditional irrespective of (a) any lack of validity or enforceability
of the Credit Agreement, any other Loan Document, any agreement with respect to
any of the Obligations or any other agreement or instrument relating to any of
the foregoing, (b) any change in the time, manner or place of payment of,
or in any other term of, all or any of the Obligations, or any other amendment
or waiver of or any consent to any departure from the Credit Agreement, any
other Loan Document or any other agreement or instrument relating to the
foregoing, (c) any exchange, release or non-perfection of any Lien on
other collateral, or any release or amendment or waiver of or consent under or
departure from any guarantee, securing or guaranteeing all or any of the
Obligations, or (d) any other circumstance that might otherwise constitute
a defense available to, or a discharge of, any Grantor in respect of the
Obligations or this Agreement.


 


SECTION 7.03.
Survival of Agreement.  All covenants, agreements,
representations and warranties made by the Loan Parties in the Loan Documents
and in the certificates or other instruments prepared or delivered in
connection with or pursuant to this Agreement or any other Loan Document shall
be considered to have been relied upon by the Lenders and shall survive the
execution and delivery of the Loan Documents and the making of any Loans,
regardless of any investigation made by any Lender or on their behalf and
notwithstanding that the Collateral Agent or any Lender may have had notice or
knowledge of any Default or incorrect representation or warranty at the time
any credit is extended under the Credit Agreement, and shall continue in full
force and effect as long as the principal of or any accrued interest on any
Loan or any fee or any other amount payable under any Loan Document is outstanding
and unpaid or the aggregate L/C Exposure does not equal zero and so long as the
Commitments have not expired or terminated.


 


SECTION 7.04.
Binding Effect; Several
Agreement.  This
Agreement shall become effective as to any Loan Party when a counterpart hereof
executed on behalf of such Loan Party shall have been delivered to the
Collateral Agent and a counterpart hereof shall have been executed on behalf of
the Collateral Agent, and thereafter shall be binding upon such Loan Party and
the Collateral Agent and their respective permitted successors and assigns, and
shall inure to the benefit of such Loan Party, the Collateral Agent and the
other Secured Parties and their respective successors and assigns, except that
no Loan Party shall have the right to assign or transfer its rights or
obligations hereunder or any interest herein or in the Collateral (and any such
assignment or transfer shall be void) except as expressly contemplated or
permitted by this Agreement or the Credit Agreement. This Agreement shall be
construed as a separate agreement with respect to each Loan Party and may be
amended, modified, supplemented, waived or released with respect to any Loan
Party without the approval of any other Loan Party and without affecting the
obligations of any other Loan Party hereunder.


 


31














 


SECTION 7.05.  Successors and Assigns.  Whenever in this Agreement any of the
parties hereto is referred to, such reference shall be deemed to include the permitted
successors and assigns of such party; and all covenants, promises and
agreements by or on behalf of any Grantor or the Collateral Agent that are
contained in this Agreement shall bind and inure to the benefit of their
respective successors and assigns.


 


SECTION 7.06.
Collateral Agent’s Fees and
Expenses; Indemnification. (a) The parties hereto agree
that the Collateral Agent shall be entitled to reimbursement of its expenses
incurred hereunder as provided in Section 9.05 of the Credit Agreement.


 


(b) Without limitation of its indemnification
obligations under the other Loan Documents, each Grantor jointly and severally
agrees to indemnify the Collateral Agent and the other indemnitees against, and
hold each indemnitee harmless from, any and all losses, claims, damages,
liabilities, and related out of pocket expenses, including the fees, charges
and disbursements of any counsel for any indemnitee, incurred by or asserted
against any indemnitee arising out of, in any way connected with, or as a
result of, the execution, delivery or performance of this Agreement or any
agreement or instrument contemplated hereby or any claim, litigation,
investigation or proceeding relating to any of the foregoing or to the
Collateral, regardless of whether any indemnitee is a party thereto or whether
initiated by a third party or by a Loan Party or any Affiliate thereof; provided, however, that such indemnity
shall not, as to any indemnitee, be available to the extent that such losses,
claims, damages, liabilities or related expenses are determined by a court of
competent jurisdiction by final and nonappealable judgment to have resulted
from the gross negligence or wilful misconduct of such indemnitee. To the
extent permitted by applicable law, no Grantor shall assert, and each Grantor
hereby waives any claim against any indemnitee, on any theory of liability, for
special, indirect, consequential or punitive damages (as opposed to direct or
actual damages) arising out of, in connection with, or as a result of, this
Agreement or any agreement or instrument contemplated hereby, the Transactions,
any Loan or the use of proceeds thereof.


 


(c) Any
such amounts payable as provided hereunder shall be additional Obligations
secured hereby and by the other Security Documents. The provisions of this
Section 7.06 shall remain operative and in full force and effect
regardless of the termination of this Agreement or any other Loan Document, the
consummation of the transactions contemplated hereby, the repayment of any of
the Obligations, the invalidity or unenforceability of any term or provision of
this Agreement or any other Loan Document, or any investigation made by or on
behalf of the Collateral Agent or any other Secured Party. All amounts due
under this Section 7.06 shall be payable on written demand therefor and
shall bear interest, on and from the date of demand, at the rate specified in
Section 2.06(a) of the Credit Agreement.


 


SECTION 7.07.
Collateral Agent Appointed
Attorney-in-Fact.  Subject to the terms of the
Intercreditor Agreement, each Grantor hereby appoints the Collateral Agent as
the attorney-in-fact of such Grantor for the purpose of carrying out the
provisions of this Agreement and taking any action and executing any instrument
that the Collateral Agent may deem necessary or advisable to accomplish the
purposes hereof, 


 


32

















 


which appointment is
irrevocable and coupled with an interest. Without limiting the generality of
the foregoing, subject to the terms of the Intercreditor Agreement, the
Collateral Agent shall have the right, upon the occurrence and during the continuance
of an Event of Default, with full power of substitution either in the
Collateral Agent’s name or in the name of such Grantor (a) to receive,
endorse, assign and/or deliver any and all notes, acceptances, checks, drafts,
money orders or other evidences of payment relating to the Collateral or any
part thereof, (b) to demand, collect, receive payment of, give receipt for
and give discharges and releases of all or any of the Collateral, (c) to
sign the name of any Grantor on any invoice or bill of lading relating to any
of the Collateral, (d) to send verifications of Accounts Receivable to any
Account Debtor, (e) to commence
and prosecute any and all suits, actions or proceedings at law or in equity in
any court of competent jurisdiction to collect or otherwise realize on all or
any of the Collateral or to enforce any rights in respect of any Collateral, (f) to
settle, compromise, compound, adjust or defend any actions, suits or
proceedings relating to all or any of the Collateral, (g) to notify, or to
require any Grantor to notify, Account Debtors to make payment directly to the
Collateral Agent, and (h) to use, sell, assign, transfer, pledge, make any
agreement with respect to or otherwise deal with all or any of the Collateral,
and to do all other acts and things necessary to carry out the purposes of this
Agreement in accordance with its terms, as fully and completely as though the
Collateral Agent were the absolute owner of the Collateral for all purposes; provided, however, that nothing herein contained shall be construed as requiring
or obligating the Collateral Agent to make any commitment or to make any
inquiry as to the nature or sufficiency of any payment received by the
Collateral Agent, or to present or file any claim or notice, or to take any
action with respect to the Collateral or any part thereof or the moneys due or
to become due in respect thereof or any property covered thereby. The
Collateral Agent and the other Secured Parties shall be accountable only for amounts
actually received as a result of the exercise of the powers granted to them
herein, and neither they nor 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, wilful misconduct or bad faith.
Notwithstanding anything to the contrary in this Section 7.07, the
Collateral Agent agrees that it will not exercise any rights under the power of
attorney provided for herein unless an Event of Default shall have occurred and
be continuing.


 


SECTION 7.08.
Applicable Law.  THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.


 


SECTION 7.09.
Waivers; Amendment.  (a) No
failure or delay by the Collateral Agent, the Administrative Agent or any
Lender in exercising any right or power hereunder or under any other Loan
Document shall operate as a waiver hereof or thereof, nor shall any single or
partial exercise of any such right or power, or any abandonment or
discontinuance of steps to enforce such a right or power, preclude any other or
further exercise thereof or the exercise of any other right or power. The
rights and remedies of the Collateral Agent, the Administrative Agent and the
Lenders hereunder and under the other Loan Documents are cumulative and are not
exclusive of any rights or remedies that they would otherwise have. No waiver
of any provision of any Loan Document or consent to any departure by any Loan
Party therefrom shall in any


 


33

















 


event be effective unless
the same shall be permitted by paragraph (b) of this Section 7.09,
and then such waiver or consent shall be effective only in the specific
instance and for the purpose for which given. Without limiting the generality of
the foregoing, the making of a Loan shall not be construed as a waiver of any Default,
regardless of whether the Collateral Agent or any Lender may have had notice or
knowledge of such Default at the time. No notice or demand on any Loan Party in
any case shall entitle any
Loan Party to any other or further notice or demand in similar or other
circumstances.


 


(b) Neither
this Agreement nor any provision hereof may be waived, amended or modified
except pursuant to an agreement or agreements in writing entered into by the
Collateral Agent and the Loan Party or Loan Parties with respect to which such
waiver, amendment or modification is to apply, subject to any consent required
in accordance with Section 9.08, of the Credit Agreement.


 


SECTION 7.10.
WAIVER OF JURY TRIAL.  EACH PARTY HERETO HEREBY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A
TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT
OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY OF THE OTHER LOAN
DOCUMENTS. EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT
OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT
SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE
FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO
HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS, AS
APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN
THIS SECTION 7.10.


 


SECTION 7.11.
Severability.  In the event any one or more of the
provisions contained in this Agreement or in any other Loan Document should be
held invalid, illegal or unenforceable in any respect, the validity, legality
and enforceability of the remaining provisions contained herein and therein
shall not in any way be affected or impaired thereby (it being understood that
the invalidity of a particular provision in a particular jurisdiction shall not
in and of itself affect the validity of such provision in any other jurisdiction).
The parties shall endeavor in good-faith negotiations to replace the invalid,
illegal or unenforceable provisions with valid provisions the economic effect
of which comes as close as possible to that of the invalid, illegal or
unenforceable provisions.


 


SECTION 7.12.
Counterparts.  This Agreement may be executed in
counterparts (and by different parties hereto on different counterparts), each
of which shall constitute an original but all of which when taken together
shall constitute a single contract, and shall become effective as provided in Section 7.04.
Delivery of an executed signature page to this Agreement by facsimile
transmission shall be as effective as delivery of a manually signed counterpart
of this Agreement.


 


34

















 


SECTION 7.13.
Headings.  Article and Section headings
and the Table of Contents used herein are for convenience of reference only,
are not part of this Agreement and are not to affect the construction of, or to
be taken into consideration in interpreting, this Agreement.


 


SECTION 7.14.
Jurisdiction; Consent to Service
of Process.  (a) Each party hereto hereby
irrevocably and unconditionally submits, for itself and its property, to the
exclusive jurisdiction of any New York State court or Federal court of the
United States of America, sitting in New York City, and any appellate court
from any thereof, in any action or proceeding arising out of or relating to
this Agreement or any other Loan Document, or for recognition or enforcement of
any judgment, and each party hereto hereby irrevocably and unconditionally
agrees that all claims in respect of any such action or proceeding may be heard
and determined in such New York State or, to the extent permitted by law, in
such Federal court. Each party hereto agrees that a final judgment in any such
action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
Nothing in this Agreement or any other Loan Document shall affect any right
that the Collateral Agent, the Administrative Agent, or any Lender may
otherwise have to bring any action or proceeding relating to this Agreement or
any other Loan Document against any Grantor or its properties in the courts of
any jurisdiction.


 


(b)  Each party hereto hereby
irrevocably and unconditionally waives, to the fullest extent it may legally
and effectively do so, any objection which it may now or hereafter have to the
laying of venue of any suit, action or proceeding arising out of or relating to
this Agreement or any other Loan Document in any court referred to in paragraph
(a) of this Section 7.14. Each party hereto hereby irrevocably
waives, to the fullest extent permitted by law, the defense of an inconvenient
forum to the maintenance of such action or proceeding in any such court.


 


(c)  Each party hereto hereby
irrevocably consents to service of process in the manner provided for notices
in Section 7.01. Nothing in this Agreement or any other Loan Document will
affect the right of the Collateral Agent to serve process in any other manner
permitted by law.


 


SECTION 7.15.
Termination of Release.  (a) This Agreement, the guarantees
made herein, the Security Interest, the pledge of the Pledged Collateral and
all other security interests granted hereby shall terminate when all the
Obligations have been indefeasibly paid in full and the Lenders have no further
commitment to lend under the Credit Agreement.


 


(b) A
Subsidiary Guarantor shall automatically be released from its obligations hereunder
and the Security Interests created hereunder in the Collateral of such
Subsidiary Guarantor shall be automatically released upon the consummation of
any transaction permitted by the Credit Agreement as a result of which such
Subsidiary Guarantor ceases to be a Subsidiary.


 


35

















 


(c)  Upon any sale or other
transfer by any Grantor of any Collateral that is permitted under the Credit
Agreement to any person that is not the Borrower or a Guarantor, or, upon the
effectiveness of any written consent to the release of the Security Interest
granted hereby in any Collateral pursuant to Section 9.08 of the Credit
Agreement, the Security Interest in such Collateral shall be automatically
released.


 


(d) In connection with any
termination or release pursuant to paragraph (a), (b) or (c) above,
the Collateral Agent shall promptly execute and deliver to any Grantor, at such
Grantor’s expense, all Uniform Commercial Code termination statements and
similar documents that such Grantor shall reasonably request to evidence such
termination or release. Any execution and delivery of documents pursuant to
this Section 7.15 shall be without recourse to or representation or
warranty by the Collateral Agent or any Secured Party. Without limiting the
provisions of Section 7.06, the Borrower shall reimburse the Collateral
Agent upon demand for all costs and out of pocket expenses, including the fees,
charges and expenses of counsel, incurred by it in connection with any action
contemplated by this Section 7.15.


 


SECTION 7.16.
Additional Subsidiaries.  Any Subsidiary that is required to become
a party hereto pursuant to Section 5.11 of the Credit Agreement shall
enter into this Agreement as a Subsidiary Guarantor and a Grantor upon becoming
such a Subsidiary. Upon execution and delivery by the Collateral Agent and such
Subsidiary of a supplement in the form of Exhibit A hereto, such Subsidiary
shall become a Subsidiary Guarantor and a Grantor hereunder with the same force
and effect as if originally named as a Subsidiary Guarantor and a Grantor
herein. The execution and delivery of any such instrument shall not require the
consent of any other Loan Party hereunder. The rights and obligations of each
Loan Party hereunder shall remain in full force and effect notwithstanding the
addition of any new Loan Party as a party to this Agreement.


 


SECTION 7.17.
Right of Setoff.  If an Event of Default shall have
occurred and is continuing, each Secured Party is hereby authorized at any time
and from time to time, to the fullest extent permitted by law, to set off and
apply any and all Collateral (including any deposits (general or special, time
or demand, provisional or final)) at any time held and other obligations at any
time owing by such Secured Party to or for the credit or the account of any
Grantor against any and all of the obligations of such Grantor now or hereafter
existing under this Agreement and the other Loan Documents held by such Secured
Party, irrespective of whether or not such Secured Party shall have made any
demand under this Agreement or any other Loan Document and although such
obligations may be unmatured. The rights of each Secured Party under this Section 7.17
are in addition to other rights and remedies (including other rights of setoff)
which such Secured Party may have.


 


SECTION 7.18. Intercreditor
Agreement Governs.  NOTWITHSTANDING
ANYTHING HEREIN TO THE CONTRARY, THE LIEN AND SECURITY INTEREST GRANTED TO THE
COLLATERAL AGENT, FOR THE BENEFIT OF THE SECURED PARTIES, PURSUANT TO THIS
AGREEMENT AND THE EXERCISE OF ANY RIGHT OR REMEDY BY THE COLLATERAL AGENT AND
THE OTHER SECURED PARTIES HEREUNDER ARE SUBJECT TO


 


36

















 


THE PROVISIONS OF THE
INTERCREDITOR AGREEMENT. IN THE EVENT OF ANY CONFLICT OR INCONSISTENCY BETWEEN
THE PROVISIONS OF THE INTERCREDITOR AGREEMENT AND THIS AGREEMENT, THE
PROVISIONS OF THE INTERCREDITOR AGREEMENT SHALL CONTROL.


 


SECTION 7.19.
Obligations of Grantors.  To the extent that the obligations of any
Grantor hereunder shall conflict, or shall be inconsistent, with the
obligations of such Grantor under the First Lien Guarantee and Collateral
Agreement, the provisions of the First Lien Guarantee and Collateral Agreement
shall control.


 


SECTION 7.20.
Delivery of Collateral.  Notwithstanding anything herein to the
contrary, prior to the Discharge of First Lien Obligations, to the extent any
Grantor is required hereunder to deliver Collateral to the Collateral Agent for
purposes of possession and control and is unable to do so as a result of having
previously delivered such Collateral to the First Lien Collateral Agent in
accordance with the terms of the First Lien Guarantee and Collateral Agreement,
such Grantor’s obligations hereunder with respect to such delivery shall be deemed
satisfied by the delivery to the First Lien Collateral Agent, acting as a
gratuitous bailee of the Collateral Agent.


 


[Remainder of page intentionally left blank]


 


37

















 


IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement
as of the day and year first above written.


 


 


	
   

  	
  STR
  ACQUISITION, INC.,

  
	
   

  	
   

  
	
   

  	
   by

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  /s/ Jason Metakis

  
	
   

  	
   

  	
  Name:
  Jason Metakis

  
	
   

  	
   

  	
  Title:
  Treasurer

  
	
   

  	
   

  	
   

  
	
   

  	
  STR
  HOLDINGS LLC,

  
	
   

  	
   

  	
   

  
	
   

  	
   by

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  /s/ Jason Metakis

  
	
   

  	
   

  	
  Name:
  Jason Metakis

  
	
   

  	
   

  	
  Title:
  Treasurer

  
	
   

  	
   

  	
   

  
	
   

  	
  SPECIALIZED
  TECHNOLOGY

  RESOURCES, INC.,

  
	
   

  	
   

  	
   

  
	
   

  	
   by

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  /s/ Barry A. Morris

  
	
   

  	
   

  	
  Name:
  Barry A. Morris

  
	
   

  	
   

  	
  Title: Secretary

  
	
   

  	
   

  	
   

  
	
   

  	
  CAL
  SAFETY COMPLIANCE

  CORPORATION,

  
	
   

  	
   

  	
   

  
	
   

  	
   by

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  /s/ Barry A. Morris

  
	
   

  	
   

  	
  Name:
  Barry A. Morris

  
	
   

  	
   

  	
  Title: Assistant
  Secretary

  



 


[Second Lien Guarantee and Collateral Agreement]


 

















 


	
   

  	
  SPECIALIZED
  TECHNOLOGY

  RESOURCES (INTERNATIONAL), INC.,

  
	
   

  	
   

  	
   

  
	
   

  	
   by

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  /s/ Barry A. Morris

  
	
   

  	
   

  	
  Name:
  Barry A. Morris

  
	
   

  	
   

  	
  Title: Secretary

  
	
   

  	
   

  	
   

  
	
   

  	
  SHUSTER
  LABORATORIES, INC.,

  
	
   

  	
   

  	
   

  
	
   

  	
   by

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  /s/ Barry A. Morris

  
	
   

  	
   

  	
  Name:
  Barry A. Morris

  
	
   

  	
   

  	
  Title: Secretary

  
	
   

  	
   

  	
   

  
	
   

  	
  SUPPLY
  CHAIN CONSULTING

  SERVICES CORPORATION,

  
	
   

  	
   

  	
   

  
	
   

  	
   by

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  /s/
  Thomas D. Vitro

  
	
   

  	
   

  	
  Name:
  Thomas D. Vitro

  
	
   

  	
   

  	
  Title: Assistant Secretary

  
	
   

  	
   

  	
   

  
	
   

  	
  SPECIALIZED
  TECHNOLOGY

  RESOURCES (FLORIDA), INC.,

  
	
   

  	
   

  	
   

  
	
   

  	
   by

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  /s/ Barry A. Morris

  
	
   

  	
   

  	
  Name:
  Barry A. Morris

  
	
   

  	
   

  	
  Title: Secretary

  
	
   

  	
   

  	
   

  
	
   

  	
  STR
  MATERIALS SCIENCE, INC.,

  
	
   

  	
   

  	
   

  
	
   

  	
   by

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  /s/ Barry A. Morris

  
	
   

  	
   

  	
  Name:
  Barry A. Morris

  
	
   

  	
   

  	
  Title: Secretary

  



 


[Second Lien Guarantee and Collateral Agreement]


 

















 


	
   

  	
  CREDIT
  SUISSE, CAYMAN ISLANDS

  BRANCH, as Collateral Agent,

  
	
   

  	
   

  	
   

  
	
   

  	
   by

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  /s/ Rianka Mohan

  
	
   

  	
   

  	
  Name:
  RIANKA MOHAN

  
	
   

  	
   

  	
  Title: VICE PRESIDENT

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   by

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  /s/
  James Neira

  
	
   

  	
   

  	
  Name:
  JAMES NEIRA

  
	
   

  	
   

  	
  Title: ASSOCIATE

  



 


[Second Lien Guarantee and Collateral Agreement]