Exhibit 10.8


 


EXECUTION COPY


 




 





FIRST LIEN CREDIT AGREEMENT


 


dated as of


 


June15, 2007


 


among


 


STR ACQUISITION, INC.,


(to be merged with and into SPECIALIZED TECHNOLOGY
RESOURCES, INC.)


 


STR HOLDINGS LLC,


 


THE LENDERS PARTY HERETO,


 


CREDIT SUISSE,

as Administrative Agent and Collateral Agent


 






 


CREDIT SUISSE SECURITIES (USA) LLC


 


as Sole Bookrunner and Sole Lead Arranger




 





 

















 


Table of Contents


 


	
   

  	
  Page

  
	
   

  	
   

  
	
  ARTICLE I

  
	
   

  
	
  Definitions

  
	
   

  	
   

  
	
  SECTION 1.01. 

  	
  Defined Terms

  	
  1

  
	
  SECTION 1.02. 

  	
  Terms Generally

  	
  27

  
	
  SECTION 1.03. 

  	
  Pro Forma Calculations

  	
  27

  
	
  SECTION 1.04.

  	
  Classification of Loans
  and Borrowings

  	
  28

  
	
   

  	
   

  
	
  ARTICLE II

  
	
   

  
	
  The Credits

  
	
   

  	
   

  
	
  SECTION 2.01.
  

  	
  Commitments

  	
  28

  
	
  SECTION 2.02.
  

  	
  Loans

  	
  29

  
	
  SECTION 2.03.
  

  	
  Borrowing Procedure

  	
  31

  
	
  SECTION 2.04.
  

  	
  Evidence of Debt; Repayment
  of Loans

  	
  31

  
	
  SECTION 2.05.
  

  	
  Fees

  	
  32

  
	
  SECTION 2.06.
  

  	
  Interest on Loans

  	
  33

  
	
  SECTION 2.07.
  

  	
  Default Interest

  	
  33

  
	
  SECTION 2.08.
  

  	
  Alternate Rate of
  Interest

  	
  33

  
	
  SECTION 2.09.
  

  	
  Termination and
  Reduction of Commitments

  	
  34

  
	
  SECTION 2.10.
  

  	
  Conversion and Continuation
  of Borrowings

  	
  34

  
	
  SECTION 2.11.
  

  	
  Repayment of Term
  Borrowings

  	
  36

  
	
  SECTION 2.12.
  

  	
  Optional Prepayment

  	
  37

  
	
  SECTION 2.13.
  

  	
  Mandatory Prepayments

  	
  37

  
	
  SECTION 2.14.
  

  	
  Reserve Requirements;
  Change in Circumstances

  	
  39

  
	
  SECTION 2.15.
  

  	
  Change in Legality

  	
  41

  
	
  SECTION 2.16.
  

  	
  Indemnity

  	
  41

  
	
  SECTION 2.17.
  

  	
  Pro Rata Treatment

  	
  42

  
	
  SECTION 2.18.
  

  	
  Sharing of Setoffs

  	
  42

  
	
  SECTION 2.19.
  

  	
  Payments

  	
  43

  
	
  SECTION 2.20.
  

  	
  Taxes

  	
  43

  
	
  SECTION 2.21.
  

  	
  Assignment of
  Commitments Under Certain Circumstances; Duty to Mitigate

  	
  46

  
	
  SECTION 2.22.
  

  	
  Swingline Loans

  	
  47

  
	
  SECTION 2.23.
  

  	
  Letters of Credit

  	
  49

  
	
  SECTION 2.24.
  

  	
  Incremental Term Loans

  	
  53

  
	
  SECTION 2.25.
  

  	
  Increase in Revolving
  Commitments

  	
  54

  



 

















 


	
   

  	
  Page

  
	
   

  	
   

  
	
  ARTICLE III

  
	
   

  
	
  Representations
  and Warranties

  
	
   

  	
   

  
	
  SECTION 3.01.

  	
  Organization; Powers

  	
  56

  
	
  SECTION 3.02.

  	
  Authorization

  	
  56

  
	
  SECTION 3.03.

  	
  Enforceability

  	
  56

  
	
  SECTION 3.04.

  	
  Governmental Approvals

  	
  57

  
	
  SECTION 3.05.

  	
  Financial Statements

  	
  57

  
	
  SECTION 3.06.

  	
  No Material Adverse
  Change

  	
  57

  
	
  SECTION 3.07.

  	
  Title to Properties;
  Possession Under Leases

  	
  58

  
	
  SECTION 3.08.

  	
  Subsidiaries

  	
  58

  
	
  SECTION 3.09.

  	
  Litigation; Compliance
  with Laws

  	
  58

  
	
  SECTION 3.10.

  	
  Agreements

  	
  59

  
	
  SECTION 3.11.

  	
  Federal Reserve
  Regulations

  	
  59

  
	
  SECTION 3.12.

  	
  Investment Company Act

  	
  59

  
	
  SECTION 3.13.

  	
  Use of Proceeds

  	
  59

  
	
  SECTION 3.14.

  	
  Tax Returns

  	
  59

  
	
  SECTION 3.15.

  	
  No Material
  Misstatements

  	
  60

  
	
  SECTION 3.16.

  	
  Employee Benefit Plans

  	
  60

  
	
  SECTION 3.17.

  	
  Environmental Matters

  	
  61

  
	
  SECTION 3.18.

  	
  Insurance

  	
  61

  
	
  SECTION 3.19.

  	
  Security Documents

  	
  61

  
	
  SECTION 3.20.

  	
  Location of Real
  Property and Leased Premises

  	
  62

  
	
  SECTION 3.21.

  	
  Labor Matters

  	
  62

  
	
  SECTION 3.22.

  	
  Solvency

  	
  62

  
	
  SECTION 3.23.

  	
  Transaction Documents

  	
  63

  
	
  SECTION 3.24.

  	
  Sanctioned Persons

  	
  63

  
	
   

  	
   

  	
   

  
	
  ARTICLE IV

  
	
   

  
	
  Conditions of
  Lending

  
	
   

  
	
  SECTION 4.01.
  

  	
  All Credit Events

  	
  63

  
	
  SECTION 4.02.
  

  	
  First Credit Event

  	
  64

  
	
   

  	
   

  	
   

  
	
  ARTICLE V

  
	
   

  
	
  Affirmative
  Covenants

  
	
   

  	
   

  	
   

  
	
  SECTION 5.01.
  

  	
  Existence; Compliance
  with Laws; Businesses and Properties

  	
  67

  
	
  SECTION 5.02.
  

  	
  Insurance

  	
  68

  
	
  SECTION 5.03.
  

  	
  Obligations and Taxes

  	
  69

  
	
  SECTION 5.04.
  

  	
  Financial Statements,
  Reports, etc.

  	
  69

  



 

















 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  SECTION 5.05.
  

  	
  Litigation and Other
  Notices

  	
  71

  
	
  SECTION 5.06.

  	
  Information Regarding
  Collateral

  	
  71

  
	
  SECTION 5.07.
  

  	
  Maintaining Records;
  Access to Properties and Inspections; Maintenance of Ratings

  	
  72

  
	
  SECTION 5.08.
  

  	
  Use of Proceeds

  	
  73

  
	
  SECTION 5.09.

  	
  Employee Benefits

  	
  73

  
	
  SECTION 5.10.
  

  	
  Compliance with
  Environmental Laws

  	
  73

  
	
  SECTION 5.11.
  

  	
  Further Assurances

  	
  73

  
	
  SECTION 5.12.
  

  	
  Interest Rate
  Protection

  	
  74

  
	
  SECTION 5.13.
  

  	
  Post-Closing Items

  	
  74

  
	
  SECTION 5.14.
  

  	
  Funds Update

  	
  74

  
	
  SECTION 5.15.
  

  	
  Purchase Price
  Adjustments

  	
  74

  
	
   

  	
   

  	
   

  
	
  ARTICLE VI

  
	
   

  
	
  Negative
  Covenants

  
	
   

  
	
  SECTION 6.01.
  

  	
  Indebtedness

  	
  75

  
	
  SECTION 6.02.
  

  	
  Liens

  	
  76

  
	
  SECTION 6.03.
  

  	
  Sale/LeaseBack
  Transactions

  	
  78

  
	
  SECTION 6.04.
  

  	
  Investments, Loans and
  Advances

  	
  78

  
	
  SECTION 6.05.
  

  	
  Mergers, Consolidations,
  Sales of Assets and Acquisitions

  	
  80

  
	
  SECTION 6.06.
  

  	
  Restricted Payments;
  Restrictive Agreements

  	
  81

  
	
  SECTION 6.07.
  

  	
  Transactions with
  Affiliates

  	
  82

  
	
  SECTION 6.08.
  

  	
  Business of Holdings,
  Borrower and Subsidiaries

  	
  82

  
	
  SECTION 6.09.
  

  	
  Other Indebtedness and
  Agreements

  	
  82

  
	
  SECTION 6.10.
  

  	
  Capital Expenditures

  	
  83

  
	
  SECTION 6.11.
  

  	
  Interest Coverage Ratio

  	
  84

  
	
  SECTION 6.12.
  

  	
  First Lien Debt Ratio

  	
  85

  
	
  SECTION 6.13.
  

  	
  Maximum Total Leverage
  Ratio

  	
  85

  
	
  SECTION 6.14.
  

  	
  Fiscal Year

  	
  86

  
	
  SECTION 6.15.
  

  	
  Certain Equity Securities

  	
  86

  



 

















 


	
   

  	
  Page

  
	
   

  
	
  ARTICLE VII

  
	
   

  
	
  Events of
  Default

  
	
   

  
	
  ARTICLE VIII

  
	
   

  
	
  The
  Administrative Agent and the Collateral Agent

  
	
   

  
	
  ARTICLE IX

  
	
   

  
	
  Miscellaneous

  
	
   

  
	
  SECTION 9.01.
  

  	
  Notices

  	
   

  	
  93

  
	
  SECTION 9.02.

  	
  Survival of Agreement

  	
   

  	
  93

  
	
  SECTION 9.03.
  

  	
  Binding Effect

  	
   

  	
  94

  
	
  SECTION 9.04.

  	
  Successors and Assigns

  	
   

  	
  94

  
	
  SECTION 9.05.
  

  	
  Expenses; Indemnity

  	
   

  	
  98

  
	
  SECTION 9.06.
  

  	
  Right of Setoff

  	
   

  	
  100

  
	
  SECTION 9.07.
  

  	
  Applicable Law

  	
   

  	
  100

  
	
  SECTION 9.08.

  	
  Waivers; Amendment

  	
   

  	
  100

  
	
  SECTION 9.09.
  

  	
  Interest Rate
  Limitation

  	
   

  	
  102

  
	
  SECTION 9.10.
  

  	
  Entire Agreement

  	
   

  	
  102

  
	
  SECTION 9.11.
  

  	
  WAIVER OF JURY TRIAL

  	
   

  	
  102

  
	
  SECTION 9.12.
  

  	
  Severability

  	
   

  	
  103

  
	
  SECTION 9.13.
  

  	
  Counterparts

  	
   

  	
  103

  
	
  SECTION 9.14.
  

  	
  Headings

  	
   

  	
  103

  
	
  SECTION 9.15.
  

  	
  Jurisdiction; Consent
  to Service of Process

  	
   

  	
  103

  
	
  SECTION 9.16.
  

  	
  Confidentiality

  	
   

  	
  104

  
	
  SECTION 9.17.
  

  	
  USA PATRIOT Act Notice

  	
   

  	
  104

  
	
  SECTION 9.18.
  

  	
  Effect of Certain
  Inaccuracies

  	
   

  	
  104

  



 

















 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  
	
  SCHEDULES

  	
   

  
	
   

  	
   

  
	
  Schedule 1.01(a)

  	
  -

  	
  Subsidiary Guarantors

  
	
  Schedule 1.01(b)

  	
  -

  	
  Mortgaged Property

  
	
  Schedule 2.01

  	
  -

  	
  Lenders and Commitments

  
	
  Schedule 3.08

  	
  -

  	
  Subsidiaries

  
	
  Schedule 3.09

  	
  -

  	
  Litigation

  
	
  Schedule 3.17

  	
  -

  	
  Environmental Matters

  
	
  Schedule 3.18

  	
  -

  	
  Insurance

  
	
  Schedule 3.19(a)

  	
  -

  	
  UCC Filing Offices

  
	
  Schedule 3.19(c)

  	
  -

  	
  Mortgage Filing Offices

  
	
  Schedule 3.20(a)

  	
  -

  	
  Owned Real Property

  
	
  Schedule 3.20(b)

  	
  -

  	
  Leased Real Property

  
	
  Schedule 6.01

  	
  -

  	
  Existing Indebtedness

  
	
  Schedule 6.02

  	
  -

  	
  Existing Liens

  
	
   

  
	
  EXHIBITS

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Exhibit A 

  	
  -

  	
  Form of
  Administrative Questionnaire

  
	
  Exhibit B 

  	
  -

  	
  Form of Assignment
  and Acceptance

  
	
  Exhibit C 

  	
  -

  	
  Form of Borrowing
  Request

  
	
  Exhibit D 

  	
  -

  	
  Form of Guarantee
  and Collateral Agreement

  
	
  Exhibit E 

  	
  -

  	
  Form of Mortgage

  
	
  Exhibit F-1
  

  	
  -

  	
  Form of Opinion of
  Weil, Gotshal & Manges LLP

  
	
  Exhibit F-2

  	
  -

  	
  Form of Opinion of
  Murtha Cullina LLP

  
					



 

















 


FIRST LIEN CREDIT AGREEMENT dated as of June 15,
2007, 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 (the “Borrower”),  STR
HOLDINGS LLC, a Delaware limited liability company (“Holdings”)  the Lenders (as defined in Article I),
and CREDIT SUISSE, as administrative agent (in such capacity, the “Administrative Agent”)  and as
collateral agent (in such capacity, the “Collateral Agent”)  for
the Lenders.


 


The Borrower has
requested the Lenders to extend credit in the form of (a) Term Loans (such term and each other capitalized term
used but not defined in this introductory statement having the meaning given it
in Article I) on the Closing Date, in an aggregate principal amount not in
excess of $185,000,000, and (b) Revolving Loans at any time and from time
to time prior to the Revolving Credit Maturity Date, in an aggregate principal
amount at any time outstanding not in excess of $20,000,000. The Borrower has
requested the Swingline Lender to extend credit, at any time and from time to
time prior to the Revolving Credit Maturity Date, in the form of Swingline
Loans, in an aggregate principal amount at any time outstanding not in excess
of $10,000,000. The Borrower has requested the Issuing Bank to issue Letters of
Credit, in an aggregate face amount at any time outstanding not in excess of
$15,000,000, to support payment obligations incurred in the ordinary course of
business by the Borrower and its Subsidiaries. The proceeds of the Term Loans
are to be used together with the proceeds of the Second Lien Term Loan and cash
to be contributed by Holdings solely (a) to pay consideration, fees and
expenses related hereto and to the Acquisition and (b) to refinance the
Existing Debt. The proceeds of the Revolving Loans and the Swingline Loans are
to be used solely for general corporate purposes of the Borrower and its
Subsidiaries.


 


The Lenders are willing to extend such credit to the
Borrower, and the Issuing Bank is willing to issue Letters of Credit for the
account of the Borrower, in each case on the terms and subject to the
conditions set forth herein. Accordingly, the parties hereto agree as follows:


 


ARTICLE I


 


Definitions


 


SECTION 1.01. Defined Terms.
As used in this Agreement, the following terms shall have the
meanings specified below:


 


“ABR”, when used in reference to any
Loan or Borrowing, refers to whether such Loan, or the Loans comprising such
Borrowing, are bearing interest at a rate determined by reference to the
Alternate Base Rate.


 


“Acquisition”  shall mean the acquisition by Holdings of
the Company and its subsidiaries pursuant to the Merger Agreement, pursuant to
which on the Closing Date


 

















 


the Borrower will merge with and into the Company with the Company
surviving as a wholly owned direct subsidiary of Holdings.


 


“Adjusted LIBO Rate”  shall mean, with respect to any
Eurodollar Borrowing for any Interest Period, an interest rate per annum equal
to the product of (a) the LIBO Rate in effect for such Interest Period and
(b) Statutory Reserves.


 


“Administrative Agent Fees”  shall have the meaning assigned to such
term in Section 2.05(b).


 


“Administrative Questionnaire”  shall mean an Administrative
Questionnaire in the form of Exhibit A, or such other form as may be
supplied from time to time by the Administrative Agent.


 


“Advisory Services and Monitoring Agreements”  shall mean (i) the
Advisory Services and Monitoring Agreement dated as of the Closing Date,
between the Borrower and Evergreen Capital Partners, LLC and (ii) the
Monitoring Agreement dated as of the Closing Date, among the Borrower, DLJ
Merchant Banking, Inc., Westwind STR Advisors LLC and Dennis L. Jilot.


 


“Affiliate”  shall mean, when used with respect to a
specified person, another person that directly, or indirectly through one or
more intermediaries, Controls or is Controlled by or is under common Control
with the person specified; provided,
however, that, (i) for purposes of Section 6.07, the term “Affiliate”
shall also include any person that directly or indirectly owns 5% or more of
any class of Equity Interests of the person specified or that is an officer or
director of the person specified and (ii) Credit Suisse and its Affiliates
(other than Permitted Investors, Parent and Parent’s subsidiaries) shall be
deemed not to be Affiliates of Parent or any of its subsidiaries.


 


“Aggregate Revolving Credit Exposure”  shall mean the aggregate amount of the
Lenders’ Revolving Credit Exposures.


 


“Alternate Base Rate”  shall mean, for any day, a rate per annum
equal to the greater of (a) the
Prime Rate in effect on such day and (b) the Federal Funds Effective Rate
in effect on such day plus 1/2 of 1%. If the Administrative Agent shall have
determined (which determination
shall be conclusive absent manifest error) that it is unable to ascertain the
Federal Funds Effective Rate for any reason, including the inability or failure
of the Administrative Agent to obtain sufficient quotations in accordance with
the terms of the definition thereof, the Alternate Base Rate shall be
determined without regard to clause (b) of
the preceding sentence until the circumstances giving rise to such inability no
longer exist. Any change in the Alternate Base Rate due to a change in the
Prime Rate or the Federal Funds Effective Rate shall be effective on the
effective date of such change in the Prime Rate or the Federal Funds Effective
Rate, as the case may be.


 


“Applicable Percentage”  shall mean, for any day (a) with
respect to any Eurodollar Term Loan, 2.50% per annum, (b) with respect to
any ABR Term Loan, 1.50% per annum, and (c) with respect to any Eurodollar
Revolving Loan or ABR


 


2

















 


Revolving Loan, the
applicable percentage set forth below under the caption “Eurodollar
Spread—Revolving Loans” or “ABR Spread—Revolving Loans”, as the case may be,
based upon the Total Leverage Ratio as of the relevant date of determination:


 


	
  Total Leverage Ratio

  	
   

  	
  Eurodollar Spread—

  Revolving Loans

  	
   

  	
  ABR Spread—

  Revolving Loans

  	
   

  
	
  Greater than or equal to 5.25 to 1.00

  	
   

  	
  2.50

  	
  %

  	
  1.50

  	
  %

  
	
  Greater than or equal to 4.50 to 1.00 but less
  than 5.25 to 1.00

  	
   

  	
  2.25

  	
  %

  	
  1.25

  	
  %

  
	
  Less than 4.50 to 1.00

  	
   

  	
  2.00

  	
  %

  	
  1.00

  	
  %

  



 


Each change in the
Applicable Percentage resulting from a change in the Total Leverage Ratio shall
be effective with respect to all Loans and Letters of Credit outstanding on and
after the date of delivery to the Administrative Agent of the financial
statements and certificates required by Section 5.04(a) or (b) and
Section 5.04(c), respectively, indicating such change until the date
immediately preceding the next date of delivery of such financial statements
and certificates indicating another such change. Notwithstanding the foregoing
and so long as no Default shall have occurred and be continuing, until the
Borrower shall have delivered the financial statements and certificates
required by Section 5.04(a) and Section 5.04(c), respectively,
for the period ended December 31, 2007, the Total Leverage Ratio shall be
deemed to be in Category 1 for purposes of determining the Applicable
Percentage. In addition, (a) at any time during which the Borrower has
failed to deliver the financial statements and certificates required by Section 5.04(a) or
(b) and Section 5.04(c), respectively, or (b) at any time after
the occurrence and during the continuance of a Default, the Total Leverage
Ratio shall be deemed to be in Category 1 for purposes of determining the
Applicable Percentage.


 


“Arranger”  shall mean Credit Suisse Securities (USA)
LLC.


 


“Asset Sale”  shall mean the sale, transfer or other
disposition (by way of merger, casualty, condemnation or otherwise) by the
Borrower or any of the Subsidiaries to any person other than the Borrower or
any Subsidiary Guarantor of (a) any Equity Interests of any of the
Subsidiaries (other than directors’ qualifying shares) or (b) any other
assets of the Borrower or any of the Subsidiaries (other than (i) inventory,
damaged, obsolete or worn out assets, scrap and Permitted Investments, in each
case disposed of in the ordinary course of business, (ii) dispositions
between or among Foreign Subsidiaries and (iii) any sale, transfer or
other disposition or series of related sales, transfers or other dispositions
having a value not in excess of $500,000).


 


“Assignment and Acceptance”  shall mean an assignment and acceptance
entered into by a Lender and an assignee, and accepted by the Administrative
Agent, in the form of Exhibit B or such other form as shall be approved by
the Administrative Agent.


 


3














 


“Attributable
Debt”  in respect of a Sale/Leaseback
Transaction means, as of the time of determination, the present value
(discounted at the interest rate borne by the Loans, compounded annually) of
the total obligations of the lessee for rental payments during the remaining
term of the lease included in such Sale/Leaseback Transaction (including any
period for which such lease has been extended); provided, however, that if such Sale/Leaseback Transaction
results in a Capital Lease Obligation the amount of Indebtedness represented
thereby will be determined in accordance with the definition of “Capital Lease
Obligations”.


 


“Baseline EBITDA”  shall mean, (i) for the fiscal year
ended December 31, 2007, $42,000,000, (ii) for the fiscal year ended December 31,
2008, $45,000,000, (iii) for the fiscal year ended on December 31,
2009, $50,000,000, (iv) for the fiscal year ended December 31, 2010,
$55,000,000, (v) for the fiscal year ended December 31, 2011,
$60,000,000, (vi) for the fiscal year ended December 31, 2012,
$65,000,000, and (vii) for the fiscal year ended December 31, 2013,
$70,000,000.


 


“Board”  shall mean the Board of Governors of the
Federal Reserve System of the United States of America.


 


“Borrowing”  shall mean (a) Loans of the same Class and
Type made, converted or continued on the same date and, in the case of
Eurodollar Loans, as to which a single Interest Period is in effect, or (b) a
Swingline Loan.


 


“Borrowing Request”  shall mean a request by the Borrower in
accordance with the terms of Section 2.03 and substantially in the form of
Exhibit C, or such other form as shall be approved by the Administrative
Agent.


 


“Business Day”  shall mean any day other than a Saturday,
Sunday or day on which banks in New York City are authorized or required by law
to close; provided, however, that
when used in connection with a Eurodollar Loan, the term “Business Day”  shall also exclude any day on which banks
are not open for dealings in dollar deposits in the London interbank market.


 


“Capital Expenditures”  shall mean, for any period, (a) the
additions to property, plant and equipment and other capital expenditures of
the Borrower and its consolidated Subsidiaries that are (or should be) set
forth in a consolidated statement of cash flows of the Borrower for such period
prepared in accordance with GAAP and (b) Capital Lease Obligations or
Synthetic Lease Obligations incurred by the Borrower and its consolidated
Subsidiaries during such period, but excluding in each case any such
expenditure made to restore, replace or rebuild property to the condition of
such property immediately prior to any damage, loss, destruction or
condemnation of such property, to the extent such expenditure is made with
insurance proceeds, condemnation awards or damage recovery proceeds relating to
any such damage, loss, destruction or condemnation.


 


“Capital Lease Obligations”  of any person shall mean the obligations
of such person to pay rent or other amounts under any lease of (or other
arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are


 


4

















 


required to be classified
and accounted for as capital leases on a balance sheet of such person under
GAAP, and the amount of such obligations shall be the capitalized amount
thereof determined in accordance with GAAP.


 


A “Change in Control”  shall be deemed to have occurred if (a) prior to a Qualified Public
Offering, the Permitted Investors shall fail to own, directly or indirectly,
beneficially and of record, shares representing at least 51% of each of the
aggregate ordinary voting power represented by the issued and outstanding
Equity Interests of Holdings, (b) after a Qualified Public Offering, any “person”
or “group” (within the meaning  of Rule 13d-5 of the Securities
Exchange Act of 1934 as in effect on the date hereof), other than the
Permitted Investors, shall own, directly or indirectly, beneficially or of
record, shares representing more than 35% of the aggregate ordinary voting
power represented by the issued and outstanding capital stock of Holdings, (c) a
majority of the seats (other than vacant seats) on the board of directors of
Holdings shall at any time be occupied by persons who were neither (i) nominated
by the board of directors of Holdings nor (ii) appointed by directors so
nominated, (d) any change in control (or similar event, however
denominated) with respect to Holdings, the Borrower or any Subsidiary shall
occur under and as defined in any indenture or agreement in respect of Material
Indebtedness to which Holdings, the Borrower or any Subsidiary is a party, or (e) Holdings
shall cease to directly own, beneficially and of record, 100% of the issued and
outstanding Equity Interests of the Borrower.


 


“Change in Law”  shall mean (a) the adoption of any
law, rule or regulation after the date of this Agreement, (b) any
change in any law, rule or regulation or in the interpretation or
application thereof by any Governmental Authority after the date of this
Agreement or (c) compliance by any Lender or the Issuing Bank (or, for
purposes of Section 2.14, by any lending office of such Lender or by such
Lender’s or Issuing Bank’s holding company, if any) with any request, guideline
or directive (whether or not having the force of law) of any Governmental
Authority made or issued after the date of this Agreement.


 


“Class”,
when used in reference to any Loan or Borrowing, refers to whether such Loan,
or the Loans comprising such Borrowing, are Revolving Loans, Term Loans, Other
Term Loans or Swingline Loans and, when used in reference to any Commitment,
refers to whether such Commitment is a Revolving Credit Commitment, Term Loan
Commitment, Incremental Term Loan Commitment or Swingline Commitment.


 


“Closing Date”  shall mean June 15, 2007.


 


“Code”  shall
mean the Internal Revenue Code of 1986, as amended from time to time.


 


“Collateral”  shall mean all the “Collateral” as
defined in any Security Document and shall also include the Mortgaged
Properties.


 


5

















 


“Commitment”  shall mean, with respect to any Lender,
such Lender’s Revolving Credit Commitment, Term Loan Commitment, Incremental
Term Loan Commitment and Swingline Commitment.


 


“Commitment Fee”  shall have the meaning assigned to such
term in Section 2.05(a).


 


“Company”  shall mean Specialized Technology
Resources, Inc., a Delaware corporation.


 


“Confidential Information Memorandum”  shall mean the Confidential Information
Memorandum of the Borrower dated May, 2007.


 


“Consolidated EBITDA”  shall mean, for any period, Consolidated
Net Income for such period plus (a) without duplication and to the extent
deducted in determining such Consolidated Net Income, the sum of (i) consolidated interest
expense for such period and any commitment, agency, letter of credit or similar
fees paid during such period with respect to Indebtedness permitted pursuant to
Section 6.01 and other bank service fees, (ii) consolidated income
tax expense for such period, (iii) all amounts attributable to
depreciation and amortization for such period, (iv) any non-cash charges
(other than the write-down of current assets) for such period, (v) fees
and expenses accrued during such period with respect to the Transactions and to
the extent not consummated, any acquisition, disposition, equity issuance,
investment or incurrence of Indebtedness that would have been permitted under
this Agreement, (vi) charges in respect of management, monitoring,
consulting and advising fees payable to the Sponsor pursuant to the Advisory
Services and Monitoring Agreements as in effect as of the Closing Date in
respect of such period, (vii) one-time costs, payments and expenses
(including severance costs) incurred during such period in respect of the
termination of employment of employees, officers and management of the Borrower
or any Subsidiary outside the ordinary course of business, (viii) all cash
payments received during such period on account of non-cash income deducted
from Consolidated Net Income pursuant to clause (b)(ii) below in a
previous period, (ix) consulting, legal, accounting, integration,
brokerage and variable commission fees, costs and expenses incurred in
connection with any Permitted Acquisition, (x) consulting fees incurred in
connection with a one-time strategic review of the Borrower in an aggregate
amount not to exceed $1,000,000, (xi) net after-tax extraordinary losses or
charges, including any such losses or charges relating to relocation costs,
one-time compensation charges and the Transactions, (xii) non-recurring or
unusual cash charges for such period in an aggregate amount not to exceed
$1,000,000 in any fiscal year, (xiii) non-cash compensation charges, (xiv)
foreign currency transaction and translation losses, and (xv) any net after-tax
gains or losses (less fees, expenses or charges related thereto) attributable
to the early extinguishment of Indebtedness pursuant to the agreement governing
such Indebtedness, and minus (b) without duplication (i) all cash
payments made during such period on account of reserves, restructuring charges
and other non-cash charges added to Consolidated Net Income pursuant to clause
(a)(iv) above in a previous period, (ii) foreign currency transaction
and translation gains, and (iii) to the extent included in determining
such Consolidated Net Income, any unusual and extraordinary gains, and all
non-cash items of


 


6

















 


income for such period,
all determined on a consolidated basis in accordance with GAAP. For purposes of
determining the First Lien Debt Ratio, the Interest Coverage Ratio and the
Total Leverage Ratio as of or for the periods ended on September 30, 2007
and December 31, 2007, Consolidated EBITDA will be deemed to be equal to (i) for
the fiscal quarter ended December 31, 2006, $12,013,000, and (ii) for
the fiscal quarter ended March 31, 2007, $7,273,000.


 


“Consolidated
Interest Expense”
shall mean, for any period, the cash interest expense (including
imputed interest expense in respect of Capital Lease Obligations and Synthetic
Lease Obligations) of the Borrower and the Subsidiaries for such period,
determined on a consolidated basis in accordance with GAAP. For purposes of the
foregoing, interest expense shall be determined after giving effect to any net
payments made or received by the Borrower or any Subsidiary with respect to
interest rate Hedging Agreements. For purposes of determining the Interest
Coverage Ratio for the period of four consecutive quarters ended September 30,
2007, December 31, 2007 and March 31 2008, Consolidated Interest Expense
shall be deemed to be equal to (a) the Consolidated Interest Expense for
the fiscal quarter ended September 30, 2007, multiplied by 4, (b) the
Consolidated Interest Expense for the two consecutive fiscal quarters ended December 31,
2007, multiplied by 2 and (c) the Consolidated Interest Expense for the
three consecutive fiscal quarters ended March 31, 2008, multiplied by 4/3,
respectively.


 


“Consolidated
Net Income”  shall mean, for any period, the net
income or loss of the Borrower and the Subsidiaries for such period determined
on a consolidated basis in accordance with GAAP (adjusted to reflect any
charge, tax or expense incurred or accrued by Holdings during such period as
though such charge, tax or expense had been incurred by the Borrower, to the extent
that the Borrower has made or would be entitled under the Loan Documents to
make any payment to or for the account of Holdings in respect thereof); provided that there shall be excluded (a) the
income of any Subsidiary to the extent that the declaration or payment of
dividends or similar distributions by the Subsidiary of that income is not at
the time permitted by operation of the terms of its charter or any agreement,
instrument, judgment, decree, statute, rule or governmental regulation
applicable to such Subsidiary, (b) the income or loss of any person
accrued prior to the date it becomes a Subsidiary or is merged into or
consolidated with the Borrower or any Subsidiary or the date that such person’s
assets are acquired by the Borrower or any Subsidiary, (c) the income of
any person in which any other person (other than the Borrower or a wholly owned
Subsidiary or any director holding qualifying shares in accordance with
applicable law) has a joint interest, except to the extent of the amount of dividends
or other distributions actually paid to the Borrower or a wholly owned
Subsidiary by such person during such period, and (d) any gains or losses
attributable to sales of assets (including pursuant to a Sale/Leaseback
Transaction) out of the ordinary course of business.


 


“Control”  shall mean the possession, directly or
indirectly, of the power to direct or cause the direction of the management or
policies of a person, whether through the ownership of voting securities, by
contract or otherwise, and the terms “Controlling”  and “Controlled”  shall have meanings
correlative thereto.


 


7

















 


“Credit Event”  shall have the meaning assigned to such
term in Section 4.01. For greater certainty, the payment by Revolving
Credit Lenders to the Administrative Agent of amounts as contemplated by clause
(ii) of the parenthetical set forth in the second sentence of Section 2.02(f) shall
not constitute a Credit Event.


 


“Credit Facilities”  shall mean the revolving credit, swingline,
letter of credit and term loan facilities provided for by this Agreement.


 


“Cure
Amount”  shall
have the meaning assigned to such term in Article VII.


 


“Cure
Right”  shall
have the meaning assigned to such term in Article VII.


 


“Current Assets”  shall mean, at any time, the consolidated
current assets (other than cash and Permitted Investments) of the Borrower and
the Subsidiaries.


 


“Current Liabilities”  shall mean, at any time, the consolidated
current liabilities of the Borrower and the Subsidiaries at such time, but
excluding, without duplication, (a) the current portion of any long-term
Indebtedness and (b) outstanding Revolving Loans and Swingline Loans.


 


“Default”  shall mean any event or condition that
upon notice, lapse of time or both would constitute an Event of Default.


 


“Defaulting Lender”
shall mean any Revolving Credit Lender that has (a) defaulted
in its obligation to make a Revolving Loan or to fund its participation in a
Letter of Credit or Swingline Loan required to be made or funded by it hereunder,
(b) notified the Administrative Agent or a Loan Party in writing that it
does not intend to satisfy any such obligation or (c) become insolvent or
the assets or management of which has been taken over by any Governmental
Authority.


 


“Disqualified
Stock”  shall mean any
Equity Interest that, by its terms (or by the terms of any security into which
it is convertible or for which it is exchangeable), or upon the happening of
any event, (a) matures (excluding any maturity as the result of an
optional redemption by the issuer thereof) or is mandatorily redeemable,
pursuant to a sinking fund obligation or otherwise, or is redeemable at the
option of the holder thereof, in whole or in part, or requires the payment of
any cash dividend or any other scheduled payment constituting a return of
capital, in each case at any time on or prior to the 91st day following the
Term Loan Maturity Date, or (b) is convertible into or exchangeable
(unless at the sole option of the issuer thereof) for (i) debt securities
or (ii) any Equity Interest referred to in clause (a) above, in each
case at any time prior to the 91st day following the Term Loan Maturity Date.


 


“dollars”  or “$” shall mean lawful money of
the United States of America.


 


“Domestic Subsidiaries”  shall mean all Subsidiaries incorporated
or organized under the laws of the United States of America, any State thereof
or the District of Columbia.


 


8

















 


“Eligible Assignee”  shall mean any
commercial bank, insurance company, investment or mutual fund or other entity
(but not any natural person) that is an “accredited investor” (as defined in
Regulation D under the Securities Act of 1933, as amended) that extends credit
or invests in bank loans as one of its businesses; provided that neither the Borrower nor any of its Affiliates
shall be an Eligible Assignee.


 


“EMU”  shall mean
the economic and monetary union as contemplated in the Treaty on European
Union.


 


“Environmental
Laws”  shall
mean all applicable Federal, state, local and foreign laws (including common
law), treaties, regulations, rules, ordinances, codes, decrees, judgments,
directives and orders (including consent orders), in each case, relating to
pollution or protection of the environment, natural resources, human health and
safety as related to exposure to Hazardous Materials, or the generation, use,
treatment, storage, transport or handling of, or the arrangement for such
activities with respect to, Hazardous Materials.


 


“Environmental Liability”
shall mean all liabilities, obligations, damages, losses, claims,
actions, suits, judgments, orders, fines, penalties, fees, expenses and costs
(including administrative oversight costs, natural resource damages and
remediation costs), whether contingent or otherwise, arising out of or relating
to (a) requirements of any Environmental Law, (b) the generation,
use, handling, transportation, storage, treatment or disposal of any Hazardous
Materials, (c) exposure to any Hazardous Materials, (d) the Release
of any Hazardous Materials or (e) any contract, agreement or other
consensual arrangement pursuant to which liability is assumed or imposed with
respect to any of the foregoing.


 


“Equity Contribution”  shall mean the
contribution by DLJ Merchant Banking Partners IV, L.P., its affiliated funds,
certain existing investors in the Company and certain other investors
reasonably acceptable to the Arranger of not less than 30.0% of the pro forma
consolidated capitalization of Holdings after giving effect to the Transactions
on the Closing Date in cash to Holdings as cash common equity and/or preferred
equity that does not provide for any cash dividends, redemption or other cash
payment at any time prior to 91 days after repayment in full in cash of the
Credit Facilities.


 


“Equity Interests”  shall
mean shares of capital stock, partnership interests, membership interests in a
limited liability company, beneficial interests in a trust or other equity
interests in any person, and any option, warrant or other right entitling the
holder thereof to purchase or otherwise acquire any such equity interest.


 


“ERISA”  shall
mean the Employee Retirement Income Security Act of 1974, as the same may be
amended from time to time.


 


“ERISA Affiliate”  shall mean any trade or business (whether
or not incorporated) that, together with the Borrower, is treated as a single
employer under Section 414(b) or


 


9

















 


(c) of the Code, or, solely for purposes of Section 302
of ERISA and Section 412 of the Code, is treated as a single employer
under Section 414 of the Code.


 


“ERISA
Event”  shall
mean (a) any “reportable event”, as defined in Section 4043 of ERISA
or the regulations issued thereunder, with respect to a Plan (other than an
event for which the 30-day notice period is waived), (b) prior to the
effectiveness of the applicable provisions of the Pension Act, the existence
with respect to any Plan of an “accumulated funding deficiency” (as defined in Section 412
of the Code or Section 302 of ERISA) or, on and after the effectiveness of
the applicable provisions of the Pension Act, any failure by any Plan to
satisfy the minimum funding standard (within the meaning of Section 412 of
the Code or Section 302 of ERISA) applicable to such Plan, in each case
whether or not waived, (c) the filing pursuant to, prior to the
effectiveness of the applicable provisions of the Pension Act, Section 412(d) of
the Code or Section 303(d) of ERISA or, on and after the
effectiveness of the applicable provisions of the Pension Act, Section 412(c) of
the Code or Section 302(c) of ERISA, of an application for a waiver
of the minimum funding standard with respect to any Plan, (d) on and after
the effectiveness of the applicable provisions of the Pension Act, a
determination that any Plan is, or is expected to be, in “at-risk” status (as
defined in Section 303(i)(4) of ERISA or Section 430(i)(4) of
the Code), (e) the incurrence by the Borrower or any of its ERISA Affiliates of
any liability under Title IV of ERISA with respect to the termination of any
Plan or the withdrawal or partial withdrawal of the Borrower or any of its
ERISA Affiliates from any Plan or Multiemployer Plan, (f) the receipt by
the Borrower or any of its ERISA Affiliates from the PBGC or a plan
administrator of any notice relating to the intention to terminate any Plan or
Plans or to appoint a trustee to administer any Plan, (g) prior to the
effectiveness of the applicable provisions of the Pension Act, the adoption of
any amendment to a Plan that would require the provision of security pursuant
to Section 401(a)(29) of the Code or Section 307 of ERISA, (h) the
receipt by the Borrower or any of its ERISA Affiliates of any notice, or the
receipt by any Multiemployer Plan from the Borrower or any of its ERISA
Affiliates of any notice, concerning the imposition of Withdrawal Liability or
a determination that a Multiemployer Plan is, or is expected to be, insolvent
or in reorganization, within the meaning of Title IV of ERISA or, on and after
the effectiveness of the applicable provisions of the Pension Act, in
endangered or critical status, within the meaning of Section 305 of ERISA,
(i) any Foreign Benefit Event or (j) any other event (other than the
initial adoption or assumption of a Plan) or condition with respect to a Plan
or Multiemployer Plan that could result in liability of the Borrower or any
Subsidiary.


 


“Eurodollar”, when used in reference to any Loan or
Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing,
are bearing interest at a rate determined by reference to the Adjusted LIBO
Rate.


 


“Event
of Default”  shall
have the meaning assigned to such term in Article VII.


 


“Excess Cash Flow”  shall mean, for any fiscal year of the
Borrower (or, in the case of the fiscal year ended December 31, 2007
(except for purposes of determining changes in noncash working capital), the
portion thereof commencing on the Closing


 


10

















 


Date and ending on December 31,
2007), the excess of (a) the sum, without duplication, of (i) Consolidated
EBITDA for such fiscal year and (ii) reductions to noncash working capital
of the Borrower and the Subsidiaries for such fiscal year (i.e., the
decrease, if any, in Current Assets minus Current Liabilities from the
beginning to the end of such fiscal year) over (b) the sum, without
duplication, of (i) the amount of any Taxes payable in cash by the
Borrower and the Subsidiaries or amounts payable pursuant to Sections
6.06(a)(iii)(y) or (iv) if applicable, with respect to such fiscal
year, (ii) Consolidated Interest Expense for such fiscal year, (iii) Capital
Expenditures made in cash in accordance with Section 6.10 during such
fiscal year except to the extent financed with the proceeds of Indebtedness,
equity issuances, casualty proceeds, condemnation proceeds or other proceeds
that would not be included in Consolidated EBITDA, (iv) permanent
repayments of Indebtedness (other than mandatory prepayments of Loans under Section 2.13)
made in cash by the Borrower and the Subsidiaries during such fiscal year, but
only to the extent that the Indebtedness so prepaid by its terms cannot be
reborrowed or redrawn and such prepayments do not occur in connection with a
refinancing of all or any portion of such Indebtedness and (v) additions
to noncash working capital for such fiscal year (i.e., the
increase, if any, in Current Assets minus Current Liabilities from the
beginning to the end of such fiscal year).


 


“Excluded
Taxes”  shall
mean, with respect to the Administrative Agent, any Lender, the Issuing Bank or
any other recipient of any payment to be made by or on account of any
obligation of the Borrower hereunder, (a) income, franchise or other
similar taxes imposed on (or measured by) its income by (i) the
jurisdiction under the laws of which such recipient is organized or in which
its principal office is located or, in the case of any Lender, in which its
applicable lending office is located or (ii) by reason of a present or
former connection between the recipient and the jurisdiction of the Borrower (other
than such connection arising solely from such recipient having executed,
delivered, or performed its obligations under, or enforced, this Agreement or
any other Loan Documents), (b) any branch profits taxes imposed by the
United States of America or any similar tax imposed by any other jurisdiction
described in clause (a) above, (c) in the case of a Foreign Lender,
any withholding tax that is imposed on amounts payable to such Foreign Lender
at the time such Foreign Lender becomes a party to this Agreement (or
designates a new lending office) or is attributable to such Foreign Lender’s
failure to comply with Section 2.20(e), except to the extent that such
Foreign Lender (or its assignor, if any) was entitled, at the time of
designation of a new lending office (or assignment), to receive additional
amounts from the Borrower with respect to such withholding tax pursuant to Section 2.20(a),
and (d) backup withholding taxes imposed on amounts payable to a recipient
at the time such Lender becomes a party hereto (or designates a new lending
office) or is attributable to such Lender’s failure or inability (other than as
a result of a Change in Law) to comply with Section 2.20(e) except to
the extent that such Lender (or its assignor, if any) was entitled, at the time
of designation of a new lending office (or assignment), to receive additional
amounts from the Borrower with respect to such backup withholding tax pursuant
to Section 2.20(a).


 


“Existing Credit Agreement”  shall mean that certain Credit Agreement
dated as of September 29, 2005 among the Company, Webster Bank, National
Association, as Administrative Agent and L/C Issuer, Newstar Financial, Inc.,
as Syndication Agent, The


 


11

















 


Governor and Company of
the Bank of Ireland and National City Bank, as Co-Documentation Agents and the
Lenders party thereto, as amended.


 


“Existing Debt”  shall mean the indebtedness of the
Company under the Existing Credit Agreement.


 


“Federal
Funds Effective Rate”  shall
mean, for any day, the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal
funds brokers, as published on the next succeeding Business Day by the Federal
Reserve Bank of New York, or, if such rate is not so published for any day that
is a Business Day, the average of the quotations for the day for such
transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by it.


 


“Fee Letter”  shall mean the Fee Letter dated April 21,
2007, among the Borrower, Holdings, the Arranger and the Administrative Agent.


 


“Fees”  shall mean the Commitment Fees, the
Administrative Agent Fees, the L/C Participation Fees and the Issuing Bank
Fees.


 


“Financial Officer”  of any person shall mean the chief
financial officer, principal accounting officer, treasurer or controller of
such person.


 


“First Lien Debt Ratio”  shall mean, on any date, the ratio of the
Indebtedness represented by the Obligations (net of unrestricted cash and cash
equivalents of the Borrower and the Subsidiaries (in each case in the amount
determined by GAAP)) on such date to Consolidated EBITDA for the period of four
consecutive fiscal quarters most recently ended on or prior to such date. In
any period of four consecutive fiscal quarters in which a Permitted Acquisition
or Significant Asset Sale occurs, the First Lien Debt Ratio shall be determined
on a pro forma basis in accordance with Section 1.03.


 


“Foreign Benefit Event”  shall mean, with
respect to any Foreign Pension Plan, (a) the existence of unfunded
liabilities in excess of the amount permitted under any applicable law, or in
excess of the amount that would be permitted absent a waiver from a
Governmental Authority, (b) the failure to make the required contributions
or payments, under any applicable law, on or before the due date for such
contributions or payments, (c) the receipt of a notice by a Governmental
Authority relating to the intention to terminate any such Foreign Pension Plan
or to appoint a trustee or similar official to administer any such Foreign
Pension Plan, or alleging the insolvency of any such Foreign Pension Plan or (d) the
incurrence of any liability in excess of $5,000,000 by Holdings, the Borrower
or any Subsidiary under applicable law on account of the complete or partial
termination of such Foreign Pension Plan or the complete or partial withdrawal
of any participating employer therein.


 


“Foreign Lender”  shall mean any Lender that is organized
under the laws of a jurisdiction other than that in which the Borrower is
located. For purposes of this definition, the United States of America, each
State thereof and the District of Columbia shall be deemed to constitute a
single jurisdiction.


 


12

















 


“Foreign Pension Plan”  shall mean any benefit plan that covers
employees of the Borrower or any Subsidiaries who are employed outside of the
United States and that is subject to any statutory funding requirement
permitting any Governmental Authority to accelerate the obligation of the
Borrower or any Subsidiaries to fund all or a portion of the unfunded accrued
benefit liabilities under such plan.


 


“Foreign Subsidiary”  shall mean any
Subsidiary that is not a Domestic Subsidiary.


 


“GAAP”  shall mean United States generally accepted accounting
principles applied on a consistent basis


 


“Governmental
Authority”  shall mean any Federal, state, local or
foreign court or governmental agency, authority, instrumentality or regulatory
body.


 


“Granting Lender”  shall have the meaning assigned to such
term in Section 9.04(i).


 


“Guarantee”  of or by any person shall mean any
obligation, contingent or otherwise, of such person guaranteeing or having the
economic effect of guaranteeing any Indebtedness or other obligation of any
other person (the “primary obligor”)  in
any manner, whether directly or indirectly, and including any obligation of
such person, direct or indirect, (a) to purchase or pay (or advance or
supply funds for the purchase or payment of) such Indebtedness or other
obligation or to purchase (or to advance or supply funds for the purchase of)
any security for the payment of such Indebtedness or other obligation, (b) to
purchase or lease property, securities or services for the purpose of assuring
the owner of such Indebtedness or other obligation of the payment of such
Indebtedness or other obligation or (c) to maintain working capital,
equity capital or any other financial statement condition or liquidity of the
primary obligor so as to enable the primary obligor to pay such Indebtedness or
other obligation; provided, however, that
the term “Guarantee” shall not include endorsements for collection or deposit
in the ordinary course of business.


 


“Guarantee and Collateral Agreement”  shall
mean the First Lien Guarantee and Collateral Agreement, substantially in the
form of Exhibit D, among the Borrower, Holdings, the Subsidiaries party
thereto and the Collateral Agent for the benefit of the Secured Parties.


 


“Guarantors”  shall mean Holdings and the Subsidiary
Guarantors.


 


“Hazardous Materials”  shall mean (a) any petroleum
products or byproducts and all other hydrocarbons, radon gas, asbestos,
polychlorinated biphenyls, chlorofluorocarbons and all other ozone-depleting
substances and (b) any chemical, material, substance or waste that is
prohibited, limited or regulated by or pursuant to any Environmental Law.


 


13














 


“Hedging Agreement”  shall mean any interest
rate protection agreement, foreign currency exchange agreement, commodity price
protection agreement or other interest or currency exchange rate or commodity
price hedging arrangement.


 


“Inactive
Subsidiary”  shall
mean any Subsidiary that (a) does not conduct any business operations, (b) has
assets with a book value not in excess of $250,000 and (c) does not have
any Indebtedness outstanding.


 


“Incremental
Revolving Facility Amount”  shall mean, at any time, the excess, if
any, of (a) $25,000,000 over (b) the sum of (i) the aggregate
increase in the Revolving Commitments established prior to such time pursuant
to Section 2.25 and (ii) the aggregate amount of all Incremental Term
Commitments established prior to such time pursuant to Section 2.24.


 


“Incremental Term Borrowing”  shall mean a Borrowing comprised of
Incremental Term Loans.


 


“Incremental Term Lender”  shall mean a Lender with an Incremental
Term Loan Commitment or an outstanding Incremental Term Loan.


 


“Incremental Term Loan Amount”  shall mean, at any time, the excess, if
any, of (a) $25,000,000 over (b) the sum of (i) the aggregate
amount of all Incremental Term Commitments established prior to such time
pursuant to Section 2.24 and (ii) the aggregate increase in Revolving
Commitments established prior to such time pursuant to Section 2.25.


 


“Incremental Term Loan Assumption Agreement”  shall mean an Incremental Term Loan
Assumption Agreement in form and substance reasonably satisfactory to the
Administrative Agent, among the Borrowers, the Administrative Agent and one or
more Incremental Term Lenders.


 


“Incremental Term Loan Commitment”  shall mean the commitment of any Lender,
established pursuant to Section 2.24, to make Incremental Term Loans to
the Borrower.


 


“Incremental Term Loan Maturity Date”  shall mean the final maturity date of any
Incremental Term Loan, as set forth in the applicable Incremental Term Loan
Assumption Agreement.


 


“Incremental Term Loan Repayment Dates”  shall mean the dates scheduled for the
repayment of principal of any Incremental Term Loan, as set forth in the
applicable Incremental Term Loan Assumption Agreement.


 


“Incremental Term Loans”  shall mean Term Loans made by one or more
Lenders to the Borrower pursuant to Section 2.01(b). Incremental Term
Loans may be made in the form of additional Term Loans or, to the extent
permitted by Section 2.24 and provided for in the relevant Incremental
Term Loan Assumption Agreement, Other Term Loans.


 


14

















 


“Indebtedness”  of any person shall mean, without
duplication, (a) all obligations of such person for borrowed money or with
respect to deposits or advances of any kind (excluding customer advances or
deposits received in the ordinary course of business), (b) all obligations
of such person evidenced by bonds, debentures, notes or similar instruments, (c) all
obligations of such person upon which interest charges are customarily paid, (d) all
obligations of such person under conditional sale or other title retention
agreements relating to property or assets purchased by such person, (e) all
obligations of such person issued or assumed as the deferred purchase price of
property or services (excluding trade accounts payable and accrued obligations
incurred in the ordinary course of business), (f) all Indebtedness of
others secured by (or for which the holder of such Indebtedness has an existing
right, contingent or otherwise, to be secured by) any Lien on property owned or
acquired by such person, whether or not the obligations secured thereby have
been assumed, (g) all Guarantees by such person of Indebtedness of others,
(h) all Capital Lease Obligations and Synthetic Lease Obligations of such
person and all Attributable Debt in respect of Sale/Leaseback Transactions
entered into by such person, (i) all obligations of such person as an
account party in respect of letters of credit and (j) all obligations of
such person in respect of bankers’ acceptances. The Indebtedness of any person
shall include the Indebtedness of any partnership in which such person is a
general partner, to the extent such person is liable therefor as a result of
such person’s ownership interest in, or other relationship with, such other
person, except to the extent the terms of such Indebtedness expressly provide
that such person is not liable therefor. Notwithstanding the foregoing, “Indebtedness”
shall not include indemnification, adjustment of purchase price, earn out,
contingent purchase obligations, hold back or other similar obligations, in
each case, incurred or assumed in connection with an acquisition or disposition
permitted hereunder of any business, assets or a Subsidiary, except to the
extent not paid when due (unless the same are being contested in good faith).
The amount of Indebtedness for which recourse is limited to either a specific
amount or to identified assets shall be equal to the lesser of such specified
amount or the fair market value of such asset, as the case may be.


 


“Indemnified
Taxes”  shall
mean Taxes other than Excluded Taxes and Other Taxes.


 


“Intercreditor Agreement”  shall mean that certain Intercreditor
Agreement dated as of the date hereof, among the Borrower, the Subsidiaries
party thereto, the Collateral Agent and Second Lien Collateral Agent (as defined
therein).


 


“Interest
Coverage Ratio”
shall mean, for any period, the ratio of (a) Consolidated EBITDA for such period to (b) Consolidated
Interest Expense for such period.


 


“Interest Payment Date”  shall mean (a) with respect to any
ABR Loan including any Swingline Loan), the last Business Day of each March,
June, September and December, commencing September 28, 2007 and (b) with
respect to any Eurodollar Loan, the last day of the Interest Period applicable
to the Borrowing of which such Loan is a part and in the case of a Eurodollar
Borrowing with an Interest Period of more than


 


15

















 


three months’
duration, each day that would have been an Interest Payment Date had successive
Interest Periods of three months’ duration been applicable to such Borrowing.


 


“Interest Period”  shall mean, with respect to any
Eurodollar Borrowing, the period commencing on the date of such Borrowing and
ending on the numerically corresponding day (or, if there is no numerically corresponding
day, on the last day) in the calendar month that is 1,2,3 or 6 months
thereafter, as the Borrower may elect (provided
that for a Borrowing on the Closing Date, the Borrower may only
elect a 1  month Interest Period); provided, however, that if any Interest Period would end on
a day other than a Business Day, such Interest Period shall be extended to the
next succeeding Business Day unless such next succeeding Business Day would
fall in the next calendar month, in which case such Interest Period shall end
on the next preceding Business Day. Interest shall accrue from and including
the first day of an Interest Period to but excluding the last day of such
Interest Period. For purposes hereof, the date of a Borrowing initially shall
be the date on which such Borrowing is made and thereafter shall be the
effective date of the most recent conversion or continuation of such Borrowing.


 


“Issuing Bank”  shall mean, as the context may require, (a) Credit
Suisse, acting through any of its Affiliates or branches, in its capacity as
the issuer of Letters of Credit hereunder, and (b) any other Lender that
may become an Issuing Bank pursuant to Section 2.23(i) or 2.23(k),
with respect to Letters of Credit issued by such Lender. The Issuing Bank may,
in its discretion, arrange for one or more Letters of Credit to be issued by
Affiliates or branches of the Issuing Bank, in which case the term “Issuing
Bank” shall include any such Affiliate or branch with respect to Letters of
Credit issued by such Affiliate or branch.


 


“Issuing
Bank Fees”  shall have the meaning assigned to such
term in Section 2.05(c).


 


“L/C Commitment”  shall mean the commitment of the Issuing
Bank to issue Letters of Credit pursuant to Section 2.23.


 


“L/C Disbursement”  shall mean a
payment or disbursement made by the Issuing Bank pursuant to a Letter of
Credit.


 


“L/C Exposure”  shall mean at any time the sum of (a) the
aggregate undrawn amount of all outstanding Letters of Credit at such time and (b) the
aggregate amount of all L/C Disbursements that have not yet been reimbursed by
or on behalf of the Borrower at such time. The L/C Exposure of any Revolving
Credit Lender at any time shall equal its Pro Rata Percentage of the aggregate
L/C Exposure at such time.


 


“L/C Participation Fee”  shall have
the meaning assigned to such term in Section 2.05(c).


 


“Lenders”  shall mean (a) the persons listed on
Schedule 2.01 (other than any such person that has ceased to be a party hereto
pursuant to an Assignment and Acceptance) and (b) any person that has
become a party hereto pursuant to an Assignment and


 


16

















 


Acceptance or an
Incremental Term Loan Assumption Agreement. Unless the context clearly
indicates otherwise, the term “Lenders” shall include the Swingline Lender.


 


“Letter of  Credit”  shall
mean any letter of credit issued pursuant to Section 2.23.


 


“LIBO Rate”  shall mean, with respect to any
Eurodollar Borrowing for any Interest Period, the rate per annum determined by
the Administrative Agent at approximately 11:00 a.m. (London time) on the
date that is two Business Days prior to the commencement of such Interest
Period by reference to the British Bankers’ Association Interest Settlement
Rates for deposits in dollars (as set forth by any service selected by the Administrative
Agent that has been nominated by the British Bankers’ Association as an
authorized information vendor for the purpose of displaying such rates) for a
period equal to such Interest Period; provided
that, to the extent that an interest rate is not ascertainable
pursuant to the foregoing provisions of this definition, the “LIBO Rate” shall
be the interest rate per annum determined by the Administrative Agent to be the
average of the rates per annum at which deposits in dollars are offered for
such relevant Interest Period to major banks in the London interbank market in
London, England by the Administrative Agent at approximately 11:00 a.m.
(London time) on the date that is two Business Days prior to the beginning of
such Interest Period.


 


“Lien”  shall mean, with respect to any asset, (a) any
mortgage, deed of trust, lien, pledge, encumbrance, charge or security interest
in or on such asset, (b) the interest of a vendor or a lessor under any
conditional sale agreement, capital lease or title retention agreement (or any
financing lease having substantially the same economic effect as any of the
foregoing) relating to such asset and (c) in the case of securities, any
purchase option, call or similar right of a third party with respect to such
securities.


 


“Loan Documents”  shall mean this Agreement, the Letters of
Credit, the Security Documents, each Incremental Term Loan Assumption Agreement
and the promissory notes, if any, executed and delivered pursuant to Section 2.04(e).


 


“Loan Parties”  shall mean the Borrower and the
Guarantors.


 


“Loans”  shall mean the Revolving Loans, the Term
Loans and the Swingline Loans.


 


“Margin Stock”  shall have the meaning assigned to such
term in Regulation U.


 


“Material Adverse
Effect”  shall mean (a) a materially
adverse effect on the business, assets, liabilities, operations, financial
condition or operating results of the Borrower and the Subsidiaries, taken as a
whole or (b) a material impairment of the rights and remedies of or
benefits available to the Lenders under any Loan Document.


 


“Material Indebtedness”  shall mean Indebtedness (other than the
Loans and Letters of Credit), or obligations in respect of one or more Hedging
Agreements, of any one or more of Holdings, the Borrower or any Subsidiary in
an aggregate principal amount exceeding $7,500,000. For purposes of determining
Material Indebtedness, the “principal amount” of the obligations of Holdings,
the Borrower or any Subsidiary in


 


17

















 


respect of any
Hedging Agreement at any time shall be the maximum aggregate amount (giving
effect to any netting agreements) that Holdings, the Borrower or such
Subsidiary would be required to pay if such Hedging Agreement were terminated
at such time.


 


“Material Subsidiary”  shall mean, at any time, any Subsidiary
that at such time shall have assets in excess of $10,000,000 or shall have $10,000,000
in revenues in the most recently ended fiscal year.


 


“Merger Agreement”  shall mean the Agreement and Plan of
Merger dated as of April 21, 2007, among the Borrower, the Company and
Parent.


 


“Moody’s”
shall mean Moody’s Investors Service, Inc., or any
successor thereto.


 


“Mortgaged Properties”  shall mean, initially,
the owned real properties of the Loan Parties specified on Schedule 1.01(b),
and shall include each other parcel of real property and improvements thereto
with respect to which a Mortgage is granted pursuant to Section 5.11.


 


“Mortgages”  shall mean the mortgages, deeds of trust,
assignments of leases and rents, modifications and other security documents
delivered pursuant to clause (i) of Section 4.02(g) or pursuant
to Section 5.11, each substantially in the form of Exhibit E.


 


“Multiemployer Plan”  shall mean a multiemployer plan as
defined in Section 4001(a)(3) of ERISA.


 


“Net Cash Proceeds”  shall mean (a) with
respect to any Asset Sale, the cash proceeds (including cash proceeds
subsequently received (as and when received) in respect of noncash
consideration initially received), net of (i) selling expenses (including
reasonable broker’s fees or commissions, legal fees, transfer and similar taxes
and the Borrower’s good faith estimate of income taxes paid or payable in
connection with such sale), (ii) amounts provided as a reserve, in
accordance with GAAP, against any liabilities under any indemnification
obligations or purchase price adjustment associated with such Asset Sale (provided
that, to the extent and at the time any such amounts are
released from such reserve, such amounts shall constitute Net Cash Proceeds)
and (iii) the principal amount, premium or penalty, if any, interest and
other amounts on any Indebtedness for borrowed money that is secured by the
asset sold in such Asset Sale and that is required to be repaid with such
proceeds (other than any such Indebtedness assumed by the purchaser of such
asset); provided, however, that,
if (x) the Borrower shall deliver a certificate of a Financial Officer to
the Administrative Agent at the time of receipt thereof setting forth the
Borrower’s intent to reinvest such proceeds in productive assets of a kind then
used or usable in the business of the Borrower and its Subsidiaries within 365
days of receipt of such proceeds and (y) no Default or Event of Default
shall have occurred and shall be continuing at the time of such certificate or
at the proposed time of the application of such proceeds, such proceeds shall
not constitute Net Cash Proceeds except to the extent not so used at the end of
such 365-day period, at which time such proceeds shall be deemed to be Net Cash
Proceeds; and (b) with respect to any issuance or incurrence of
Indebtedness or any Specified Equity Issuance, the cash


 


18

















 


proceeds thereof,
net of all taxes and customary fees, commissions, costs and other expenses incurred
in connection therewith.


 


“Obligations”  shall mean
all obligations defined as “Obligations” in the Guarantee and Collateral
Agreement and the other Security Documents.


 


“Other Taxes”  shall
mean any and all present or future stamp or documentary taxes or any other
excise or property taxes, charges or similar levies arising from any payment
made under any Loan Document or from the execution, delivery or enforcement of
or otherwise with respect to, any Loan Document.


 


“Other Term Loans”  shall have
the meaning assigned to such term in Section 2.24(a).


 


“Parent”
shall mean STR Holdings Inc. and its successors
and assigns.


 


“PBGC”  shall mean the Pension Benefit Guaranty
Corporation referred to and defined in ERISA.


 


“Pension Act”  shall mean the Pension Protection Act of
2006, as amended from time to time.


 


“Perfection Certificate”  shall mean the
Perfection Certificate substantially in the form of Exhibit B to the
Guarantee and Collateral Agreement.


 


“Permitted Acquisition”  shall have the meaning
assigned to such term in Section 6.04(g).


 


“Permitted Investments”  shall mean:


 


(a) direct obligations of, or obligations the
principal of and interest on which are unconditionally guaranteed by, the
United States of America (or by any agency thereof to the extent such
obligations are backed by the full faith and credit of the United States of
America), in each case maturing within one year from the date of acquisition
thereof;


 


(b) direct obligations of, or obligations the
principal of and interest on which are unconditionally guaranteed by, any
participating member state of the EMU (or by any agency thereof to the extent
such obligations are backed by the full faith and credit of such participating
member state of the EMU), in each case with a rating equal to or higher than
Baa3 by Moody’s and BBB- by S&P (or the equivalent rating and rating agency
applicable for such member state) and maturing within one year from the date of
acquisition thereof;


 


(c) investments
in commercial paper maturing within 270 days from the date of acquisition
thereof and having, at such date of acquisition, the highest credit rating
obtainable from S&P or from Moody’s;


 


19

















 


(d) investments
in certificates of deposit, banker’s acceptances, time deposits and eurodollar
time deposits maturing within one year from the date of acquisition thereof
issued or guaranteed by or placed with, and money market deposit accounts
issued or offered by, the Administrative Agent or any domestic office of any
commercial bank organized under the laws of the United States of America or any
State thereof or any foreign commercial bank organized under the laws of a
participating member state of the EMU that has a combined capital and surplus
and undivided profits of not less than $500,000,000 in the case of U.S. banks
(or the dollar equivalent as of the date of determination in the case of
non-U.S. banks);


 


(e) fully
collateralized repurchase agreements with a term of not more than 30 days for
securities described in clause (a) above
and entered into with a financial institution satisfying the criteria of clause
(d) above;


 


(f) investments
in “money market funds” within the meaning of Rule 2a-7 of the Investment
Company Act of 1940, as amended, substantially all of whose assets are invested
in investments of the type described in clauses (a) through (e) above;


 


(g) investments in so-called “auction rate”
securities rated AAA or higher by S&P or Aaa or higher by Moody’s and which
have a reset date not more than 90 days from the date of acquisition thereof;
and


 


(h) other short-term investments utilized by
Foreign Subsidiaries in accordance with normal investment practices for cash
management in investments of a type analogous to the foregoing and denominated
in dollars or foreign currencies.


 


“Permitted
Investors”  shall mean DLJ
Merchant Banking Partners IV, L.P. and its affiliated funds.


 


“person”
shall mean any natural person, corporation,
business trust, joint venture, association, company, limited liability company,
partnership, Governmental Authority or other entity.


 


“Plan”  shall
mean any employee pension benefit plan (other than a Multiemployer Plan)
subject to the provisions of Title IV of ERISA or Section 412 of the Code
or Section 302 of ERISA, and in respect of which the Borrower or any ERISA
Affiliate is (or, if such plan were terminated, would under Section 4069
of ERISA be deemed to be) an “employer” as defined in Section 3(5) of
ERISA.


 


“Pledged Collateral”  shall have the meaning assigned to such
term in the Guarantee and Collateral Agreement.


 


“Prime Rate”  shall mean the rate of interest per annum
determined from time to time by Credit Suisse as its prime rate in effect at
its principal office in New York City and notified to the Borrower.


 


“Pro Rata Percentage”  of any Revolving Credit Lender at any
time shall mean the percentage of the Total Revolving Credit Commitment
represented by such Lender’s


 


20

















 


Revolving Credit
Commitment. In the event the Revolving Credit Commitments shall have expired or
been terminated, the Pro Rata Percentages shall be determined on the basis of
the Revolving Credit Commitments most recently in effect, giving effect to any
subsequent assignments.


 


“Qualified Capital Stock”
of any person shall mean any Equity Interest of such person that is
not Disqualified Stock.


 


“Qualified Public Offering”  shall mean the initial underwritten
public offering of common Equity Interests of Holdings or the Borrower pursuant
to an effective registration statement filed with the Securities and Exchange
Commission in accordance with the Securities Act of 1933, as amended, that
results in at least $50,000,000 of Net Cash Proceeds to Holdings.


 


“Register”  shall have the meaning assigned to such
term in Section 9.04(d).


 


“Regulation T” shall mean
Regulation T of the Board as from time to time in effect and all official
rulings and interpretations thereunder or thereof.


 


“Regulation U”
shall mean Regulation U of the Board as from time to time in effect
and all official rulings and interpretations thereunder or thereof.


 


“Regulation X”
shall mean Regulation X of the Board as from time to time in effect
and all official rulings and interpretations thereunder or thereof.


 


“Related Fund”  shall mean, with respect to any Lender
that is a fund or commingled investment vehicle that invests in bank loans, any
other fund that invests in bank loans and is managed or advised by the same
investment advisor as such Lender or by an Affiliate of such investment advisor.


 


“Related Parties”  shall mean, with respect to any specified
person, such person’s Affiliates and the respective directors, trustees,
officers, employees, agents and advisors of such person and such person’s
Affiliates.


 


“Release”  shall mean any release, spill, emission,
leaking, dumping, injection, pouring, deposit, disposal, discharge, dispersal,
leaching or migration into or through the environment or within or upon any
building, structure, facility or fixture.


 


“Repayment Date”  shall have the meaning assigned to such term
in Section 2.11. Unless the context otherwise requires, the term “Repayment
Date”  shall
also include each Incremental Term Loan Repayment Date.


 


“Required Lenders”  shall mean, at any
time, Lenders having Loans (excluding Swingline Loans), L/C Exposure, Swingline
Exposure and unused Revolving Credit Commitments and Term Loan Commitments
representing more than 50% of the sum of all Loans outstanding (excluding
Swingline Loans), L/C Exposure, Swingline Exposure and unused Revolving Credit
Commitments and Term Loan Commitments at such time; provided that the Revolving Loans, L/C Exposure, Swingline
Exposure and unused


 


21

















 


Revolving Credit
Commitments of any Defaulting Lender shall be disregarded in the determination
of the Required Lenders at any time.


 


“Required Prepayment Percentage”  shall mean in the case of any Excess Cash
Flow, 50% or, if on the date of the applicable prepayment (and after giving
effect thereto, in whole or in part), the Total Leverage Ratio is less than 5.25
to 1.00 but greater than or equal to 4.50 to 1.00, 25%, or, if on the date of
the applicable prepayment, the Total Leverage Ratio is less than 4.50 to 1.00,
0%.


 


“Responsible
Officer”  of
any person shall mean any executive officer or Financial Officer of such person
and any other officer or similar official thereof responsible for the
administration of the obligations of such person in respect of this Agreement.


 


“Restricted
Indebtedness”  shall
mean Indebtedness of Holdings, the Borrower or any Subsidiary, the payment,
prepayment, repurchase or defeasance of which is restricted under Section 6.09(b).


 


“Restricted Payment”  shall mean any dividend or other
distribution (whether in cash, securities or other property (other than
Qualified Capital Stock)) with respect to any Equity Interests in Holdings, the
Borrower or any Subsidiary, or any payment (whether in cash, securities or
other property (other than Qualified Capital Stock)), including any sinking
fund or similar deposit, on account of the purchase, redemption, retirement,
acquisition, cancellation or termination of any Equity Interests in Holdings,
the Borrower or any Subsidiary. For greater certainty, the payment of fees
pursuant to the Advisory Services and Monitoring Agreements shall not
constitute a Restricted Payment under Section 6.06(a).


 


“Revolving Credit Borrowing”
shall mean a Borrowing comprised of Revolving Loans.


 


“Revolving Credit Commitment”  shall mean, with respect to each Lender,
the commitment of such Lender to make Revolving Loans hereunder (and to acquire
participations in Swingline Loans and Letters of Credit as provided for herein)
as set forth on Schedule 2.01, or in the Assignment and Acceptance pursuant to
which such Lender assumed its Revolving Credit Commitment, as applicable, as
the same may be (a) reduced from time to time pursuant to Section 2.09,
(b) increased from time to time pursuant to Section 2.25 and (c) reduced
or increased from time to time pursuant to assignments by or to such Lender
pursuant to Section 9.04. The aggregate amount of Revolving Commitments on
the Closing Date is $20,000,000.


 


“Revolving Credit Exposure”
shall mean, with respect to any Lender at any time, the aggregate
principal amount at such time of all outstanding Revolving Loans of such
Lender, plus the aggregate amount
at such time of such Lender’s L/C Exposure, plus
the aggregate amount at such time of such Lender’s Swingline
Exposure.


 


“Revolving Credit Lender”
shall mean a Lender with a Revolving Credit Commitment or an outstanding
Revolving Loan.


 


22














 


“Revolving Credit
Maturity Date”  shall mean June 15, 2012.


 


“Revolving Loans”  shall mean the
revolving loans made by the Lenders to the Borrower pursuant to clause (a) of
Section 2.01.


 


“Sale/Leaseback
Transaction”  means
an arrangement, directly or indirectly, with any person relating to property,
real or personal or mixed, used or useful in the business of the Borrower or
any Subsidiary, whether now owned or acquired after the Closing Date, whereby
the Borrower or any Subsidiary sells or transfers such property to a person and
thereafter rents or leases such property or other property which it intends to
use for substantially the same purpose or purposes as the property being sold
or transferred.


 


“Second Lien
Term Loan Agreement”  shall
mean the Second Lien Credit Agreement dated as of the date hereof among the
Borrower, Holdings, Credit Suisse, as administrative agent and as collateral
agent, and the lenders from time to time party thereto.


 


“Second Lien
Term Loan Documents”  shall mean the Second Lien Term Loan Agreement and all
other instruments, agreements and other documents evidencing or governing the
Second Lien Term Loan or providing for any Guarantee or other right in respect
thereof.


 


“Second Lien
Term Loan”  shall
mean the $75,000,000 Senior Secured Second Lien Term Loan contemplated by the
Second Lien Term Loan Agreement.


 


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


 


“Secured Parties”  shall have the meaning
assigned to such term in the Guarantee and Collateral Agreement.


 


“Security Documents”  shall
mean the Mortgages, the Guarantee and Collateral Agreement, the Intercreditor
Agreement and each of the security agreements, mortgages and other instruments
and documents executed and delivered pursuant to any of the foregoing or
pursuant to Section 5.11.


 


“Significant
Asset Sale”  shall
mean the sale, transfer, lease or other disposition by Holdings or any
Subsidiary to any person other than the Borrower or a Subsidiary Guarantor of
all or substantially all of the assets of, or a majority of the Equity
Interests in, a person, or a division or line of business or other business
unit of a person.


 


“S&P”  shall mean Standard
& Poor’s Ratings Service, or any successor thereto.


 


“Spanish Subsidized Loans”  shall
mean government-subsidized loans in advance made as part of an official program
of the Ministry of Economic Development of Spain (the “Spanish Ministry”), representing
funds pledged to STR España as incentive for economic development in the
country of Spain and/or the region of Asturias, Spain, the interest and
principal of which are relieved by the Spanish Ministry upon completion of


 


23

















 


STR España’s approved
development program (capital investment, job creation, employee training, etc).


 


“SPC”  shall have the meaning
assigned to such term in Section 9.04(i).


 


“Specified
Equity Issuance”  shall
mean any public issuance or sale by Holdings, the Borrower or any of their
respective subsidiaries of any Equity Interests of Holdings, the Borrower or
any such subsidiary, as applicable, other than public offerings with respect to
Holding’s, the Borrower’s or any of their respective subsidiaries’ Equity
Interests registered on Form S-4 or Form S-8.


 


“Statutory Reserves”  shall mean a fraction (expressed as a
decimal), the numerator of which is the number one and the denominator of which
is the number one minus the aggregate of the maximum reserve percentages
(including any marginal, special, emergency or supplemental reserves) expressed
as a decimal established by the Board and any other banking authority, domestic
or foreign, to which the Administrative Agent or any Lender (including any
branch, Affiliate or other fronting office making or holding a Loan) is subject
for Eurocurrency Liabilities (as defined in Regulation D of the Board).
Eurodollar Loans shall be deemed to constitute Eurocurrency Liabilities (as
defined in Regulation D of the Board) and to be subject to such reserve
requirements without benefit of or credit for proration, exemptions or offsets
that may be available from time to time to any Lender under such Regulation D.
Statutory Reserves shall be adjusted automatically on and as of the effective
date of any change in any reserve percentage.


 


“STR España”  shall mean Specialized Technology
Resources España S.A., a stock corporation formed under the laws of Spain and
wholly owned by the Borrower.


 


“subsidiary”  shall mean, with respect to any person
(herein referred to as the “parent”),  any corporation, partnership, limited
liability company, association or other business entity (a) of which securities
or other ownership interests representing more than 50% of the equity or more
than 50% of the ordinary voting power or more than 50% of the general partnership
interests are, at the time any determination is being made, owned, Controlled
or held, or (b) that is, at the time any determination is made, otherwise
Controlled, by the parent or one or more subsidiaries of the parent or by the
parent and one or more subsidiaries of the parent.


 


“Subsidiary”  shall mean any subsidiary of the
Borrower.


 


“Subsidiary
Guarantor”  shall mean each Subsidiary
listed on Schedule 1.01(a), and each other Subsidiary that is or becomes a
party to the Guarantee and Collateral Agreement.


 


“Swingline
Commitment”  shall
mean the commitment of the Swingline Lender to make loans pursuant to Section
2.22, as the same may be reduced from time to time pursuant to Section 2.09.


 


24

















 


“Swingline Exposure”  shall mean at any time the aggregate
principal amount at such time of all outstanding Swingline Loans. The Swingline
Exposure of any Revolving Credit Lender at any time shall equal its Pro Rata
Percentage of the aggregate Swingline Exposure at such time.


 


“Swingline
Lender”  shall
mean Credit Suisse, acting through any of its Affiliates or branches, in its
capacity as lender of Swingline Loans hereunder.


 


“Swingline Loan”  shall mean any loan made by the Swingline
Lender pursuant to Section 2.22.


 


“Synthetic
Lease”  shall
mean, as to any person, any lease (including leases that may be terminated by
the lessee at any time) of any property (whether real, personal or mixed) (a)
that is accounted for as an operating lease under GAAP and (b) in respect of which
the lessee retains or obtains ownership of the property so leased for U.S.
federal income tax purposes, other than any such lease under which such person
is the lessor.


 


“Synthetic
Lease Obligations”
shall mean, as to any person, an amount equal to the capitalized
amount of the remaining lease payments under any Synthetic Lease that would
appear on a balance sheet of such person in accordance with GAAP if such
obligations were accounted for as Capital Lease Obligations.


 


“Synthetic
Purchase Agreement”  shall mean any swap, derivative or other agreement or
combination of agreements pursuant to which Holdings, the Borrower or any
Subsidiary is or may become obligated to make (a) any payment in connection
with a purchase by any third party from a person other than Holdings, the
Borrower or any Subsidiary of any Equity Interest or Restricted Indebtedness or
(b) any payment (other than on account of a permitted purchase by it of any
Equity Interest or Restricted Indebtedness) the amount of which is determined by
reference to the price or value at any time of any Equity Interest or
Restricted Indebtedness; provided that
no phantom stock or similar plan providing for payments only to current or
former directors, officers or employees of Holdings, the Borrower or the
Subsidiaries (or to their heirs or estates) shall be deemed to be a Synthetic
Purchase Agreement.


 


“Taxes”  shall mean any and all present or future
taxes, levies, imposts, duties, deductions, charges or withholdings imposed by
any Governmental Authority.


 


“Term Borrowing”  shall mean a Borrowing comprised of Term
Loans or Incremental Term Loans.


 


“Term Lender”  shall mean a Lender with a Term Loan
Commitment or an outstanding Term Loan. Unless the context shall otherwise
require, the term “Term Lenders”  shall also include the Incremental Term Lenders.


 


“Term Loan
Commitment”  shall
mean, with respect to each Lender, the commitment of such Lender to make Term
Loans hereunder as set forth on Schedule 2.01, or in the Assignment and
Acceptance pursuant to which such Lender assumed its Term Loan Commitment, as
applicable, as the same may be (a) reduced from


 


25

















 


time to time pursuant to
Section 2.09 and (b) reduced or increased from time to time pursuant to
assignments by or to such Lender pursuant to Section 9.04. Unless the context
shall otherwise require the term “Term Loan Commitments”  shall include the Incremental Term
Commitments.


 


“Term Loan
Maturity Date”  shall
mean June 15, 2014.


 


“Term Loan
Repayment Dates”
shall mean the Repayment Dates and the Incremental Term Loan
Repayment Dates.


 


“Term Loans”  shall mean the term loans made by the
Lenders to the Borrower pursuant to clause (a) of Section 2.01. Unless the
context shall otherwise require, the term “Term Loans”
shall include any Incremental Term Loans.


 


“Total Debt”  shall
mean, at any time, the total Indebtedness of the Borrower and the Subsidiaries
at such time (excluding Indebtedness of the type described in clause (i) of the
definition of such term, except to the extent of any unreimbursed drawings
thereunder).


 


“Total Leverage
Ratio”  shall
mean, on any date, the ratio of Total Debt (net of unrestricted cash and cash
equivalents of the Borrower and the Subsidiaries (in each case in the amount
determined by GAAP)) on such date to Consolidated EBITDA for the period of four
consecutive fiscal quarters most recently ended on or prior to such date. In
any period of four consecutive fiscal quarters in which a Permitted Acquisition
or Significant Asset Sale occurs, the Total Leverage Ratio shall be determined
on a pro forma basis in accordance with Section 1.03.


 


“Total Revolving
Credit Commitment”
shall mean, at any time, the aggregate amount of the Revolving
Credit Commitments, as in effect at such time. The initial Total Revolving
Credit Commitment is $20,000,000.


 


“Transactions”  shall mean,
collectively, (a) the execution, delivery and performance by Parent, the
Company and the Borrower of the Merger Agreement and the consummation of the
transactions contemplated thereby, (b) the execution, delivery and performance
by Holdings, the Borrower and the Subsidiaries party thereto of the Second Lien
Term Loan Documents and the incurrence of the Second Lien Term Loan, (c) the
execution, delivery and performance by the Loan Parties of the Loan Documents
to which they are a party and the making of the Borrowings hereunder, (d) the
repayment of all amounts due or outstanding under or in respect of, and the
termination of, the Existing Credit Agreement and (e) the payment of related
fees and expenses.


 


“Type”,  when
used in respect of any Loan or Borrowing, shall refer to the Rate by reference
to which interest on such Loan or on the Loans comprising such Borrowing is
determined. For purposes hereof, the term “Rate”  shall mean the Adjusted LIBO Rate and the Alternate Base
Rate.


 


26

















 


“USA PATRIOT Act”  shall mean The Uniting and Strengthening
America by Providing Appropriate Tools Required to Intercept and Obstruct
Terrorism Act of 2001 (Title III of Pub. L. No. 107-56 (signed into law October
26, 2001)).


 


“wholly owned
Subsidiary”  of
any person shall mean a subsidiary of such person of which securities (except
for directors’ qualifying shares) or other ownership interests representing
100% of the Equity Interests are, at the time any determination is being made,
owned, Controlled or held by such person or one or more wholly owned
Subsidiaries of such person or by such person and one or more wholly owned
Subsidiaries of such person.


 


“Withdrawal
Liability”  shall
mean liability to a Multiemployer Plan as a result of a complete or partial
withdrawal from such Multiemployer Plan, as such terms are defined in Part I of
Subtitle E of Title IV of ERISA.


 


SECTION 1.02. Terms Generally. The definitions in Section 1.01 shall
apply equally to both the singular and plural forms of the terms defined.
Whenever the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. The words “include”, “includes” and “including”
shall be deemed to be followed by the phrase “without limitation”. The word “will”
shall be construed to have the same meaning and effect as the word “shall”; and
the words “asset” and “property” shall be construed as having the same meaning and
effect and to refer to any and all tangible and intangible assets and
properties, including cash, securities, accounts and contract rights. All
references herein to Articles, Sections, Exhibits and Schedules shall be deemed
references to Articles and Sections of, and Exhibits and Schedules to, this
Agreement unless the context shall otherwise require. Except as otherwise
expressly provided herein, (a) any reference in this Agreement to any Loan
Document shall mean such document as amended, restated, supplemented or
otherwise modified from time to time and (b) all terms of an accounting or
financial nature shall be construed in accordance with GAAP, as in effect from
time to time; provided, however, that
if the Borrower notifies the Administrative Agent that the Borrower wishes to
amend any covenant in Article VI or any related definition to eliminate the
effect of any change in GAAP occurring after the date of this Agreement on the
operation of such covenant (or if the Administrative Agent notifies the Borrower
that the Required Lenders wish to amend Article VI or any related definition
for such purpose), then the Borrower’s compliance with such covenant shall be
determined on the basis of GAAP in effect immediately before the relevant
change in GAAP became effective, until either such notice is withdrawn or such
covenant is amended in a manner satisfactory to the Borrower and the Required
Lenders.


 


SECTION 1.03. Pro Forma Calculations. With respect to any period of four
consecutive fiscal quarters during which any Permitted Acquisition or
Significant Asset Sale occurs (and for purposes of determining whether an
acquisition is a Permitted Acquisition under Section 6.04(g) or would result in
a Default or an Event of Default), the First Lien Debt Leverage Ratio, the
Total Leverage Ratio shall be calculated with respect to such period on a pro
forma basis after giving effect to such Permitted Acquisition or Significant
Asset Sale (including, without duplication, (a) all pro forma


 


27

















 


adjustments permitted or
required by Article 11 of Regulation S-X under the Securities Act of 1933, as
amended, and (b) pro forma adjustments for cost savings (net of continuing
associated expenses) to the extent such cost savings are factually supportable,
are expected to have a continuing impact and have been realized or are
reasonably expected to be realized within 12 months following such Permitted
Acquisition; provided that all
such adjustments shall be set forth in a reasonably detailed certificate of a
Financial Officer of the Borrower), using, for purposes of making such
calculations, the historical financial statements of the Borrower and the
Subsidiaries which shall be reformulated as if such Permitted Acquisition or
Significant Asset Sale, and any other Permitted Acquisitions and Significant
Asset Sales that have been consummated during the period, had been consummated
on the first day of such period.


 


SECTION 1.04. Classification of Loans and
Borrowings. For
purposes of this Agreement, Loans may be classified and referred to by Class (e.g., a
“Revolving Loan”) or by Type (e.g., a
“Eurodollar Loan”) or by Class and Type (e.g., a “Eurodollar Revolving Loan”).
Borrowings also may be classified and referred to by Class (e.g., a
“Revolving Borrowing”) or by Type (e.g., a “Eurodollar Borrowing”) or
by Class and Type (e.g., a “Eurodollar Revolving
Borrowing”).


 


ARTICLE II


 


The
Credits


 


SECTION 2.01. Commitments. (a) Subject to the terms and conditions
and relying upon the representations and warranties herein set forth, each
Lender agrees, severally and not jointly, (i) to make a Term Loan to the
Borrower on the Closing Date in a principal amount not to exceed its Term Loan
Commitment, and (ii) to make Revolving Loans to the Borrower, at any time and
from time to time on or after the date hereof, and until the earlier of the
Revolving Credit Maturity Date and the termination of the Revolving Credit
Commitment of such Lender in accordance with the terms hereof, in an aggregate
principal amount at any time outstanding that will not result in such Lender’s
Revolving Credit Exposure exceeding such Lender’s Revolving Credit Commitment; provided that the aggregate principal
amount of Revolving Loans made on the Closing Date shall not exceed $1,000,000.
Within the limits set forth in clause (ii) of the preceding sentence and
subject to the terms, conditions and limitations set forth herein, the Borrower
may borrow, pay or prepay and reborrow Revolving Loans. Amounts paid or prepaid
in respect of Term Loans may not be reborrowed.


 


(b)           Each Lender having an Incremental
Term Loan Commitment, severally and not jointly, hereby agrees, on the terms
and subject to the conditions set forth herein and in the applicable
Incremental Term Loan Assumption Agreement and relying upon the representations
and warranties set forth herein and in the applicable Incremental Term Loan
Assumption Agreement, to make Incremental Term Loans to the Borrower, in an
aggregate principal amount not to exceed its Incremental Term Loan Commitment.
Amounts paid or prepaid in respect of Incremental Term Loans may not be
reborrowed.


 


28

















 


SECTION 2.02. Loans.  (a) Each Loan (other than Swingline
Loans) shall be made as part of a Borrowing consisting of Loans made by the
Lenders ratably in accordance with their applicable Commitments; provided, however, that the failure of any
Lender to make any Loan shall not in itself relieve any other Lender of its
obligation to lend hereunder (it being understood, however, that no Lender
shall be responsible for the failure of any other Lender to make any Loan
required to be made by such other Lender). Except for Loans deemed made
pursuant to Section 2.02(f), the Loans comprising any Borrowing shall be in an
aggregate principal amount that is (i) an integral multiple of $100,000 and not
less than $500,000 (except, with respect to any Incremental Term Borrowing, to
the extent otherwise provided in the related Incremental Term Loan Assumption
Agreement) or (ii) equal to the remaining available balance of the applicable
Commitments.


 


(b)           Subject to Sections 2.02(f), 2.08 and
2.15, each Borrowing shall be comprised entirely of ABR Loans or Eurodollar
Loans as the Borrower may request pursuant to Section 2.03. Each Lender may at
its option make any Eurodollar Loan by causing any domestic or foreign branch
or Affiliate of such Lender to make such Loan; provided
that any exercise of such option shall not affect the obligation of
the Borrower to repay such Loan in accordance with the terms of this Agreement.
Borrowings of more than one Type may be outstanding at the same time; provided, however, that the Borrower shall
not be entitled to request any Borrowing that, if made, would result in more
than five Eurodollar Borrowings outstanding hereunder at any time. For purposes
of the foregoing, Borrowings having different Interest Periods, regardless of
whether they commence on the same date, shall be considered separate
Borrowings.


 


(c)           Except with respect to Loans made pursuant
to Section 2.02(f), each Lender shall make each Loan to be made by it hereunder
on the proposed date thereof by wire transfer of immediately available funds to
such account in New York City as the Administrative Agent may designate not
later than 1:00 p.m., New York City time, and the Administrative Agent shall
promptly credit the amounts so received to an account designated by the
Borrower in the applicable Borrowing Request or, if a Borrowing shall not occur
on such date because any condition precedent herein specified shall not have
been met, return the amounts so received to the respective Lenders.


 


(d)           Unless the Administrative Agent shall
have received notice from a Lender prior to the date of any Borrowing that such
Lender will not make available to the Administrative Agent such Lender’s
portion of such Borrowing, the Administrative Agent may assume that such Lender
has made such portion available to the Administrative Agent on the date of such
Borrowing in accordance with paragraph (c) above and the Administrative Agent
may, in reliance upon such assumption, make available to the Borrower on such
date a corresponding amount. If the Administrative Agent shall have so made
funds available then, to the extent that such Lender shall not have made such
portion available to the Administrative Agent, such Lender and the Borrower
severally agree to repay to the Administrative Agent forthwith on demand such
corresponding amount together with interest thereon, for each day from the date
such amount is made available to the Borrower to but excluding the date such
amount is repaid to the Administrative Agent at (i) in the case of the
Borrower, a rate per annum equal to


 


29

















 


the interest rate applicable at the time to the Loans
comprising such Borrowing and (ii) in the case of such Lender, a rate
determined by the Administrative Agent to represent its cost of overnight or
short-term funds (which determination shall be conclusive absent manifest
error). If such Lender shall repay to the Administrative Agent such
corresponding amount, such amount shall constitute such Lender’s Loan as part
of such Borrowing for purposes of this Agreement.


 


(e)           Notwithstanding any other provision
of this Agreement, the Borrower shall not be entitled to request any Revolving
Credit Borrowing if the Interest Period requested with respect thereto would
end after the Revolving Credit Maturity Date.


 


(f)            If the Issuing Bank shall not have
received from the Borrower the payment required to be made by Section 2.23(e)
within the time specified in such Section, the Issuing Bank will promptly
notify the Administrative Agent of the L/C Disbursement and the Administrative
Agent will promptly notify each Revolving Credit Lender of such L/C Disbursement
and its Pro Rata Percentage thereof. Each Revolving Credit Lender shall pay by
wire transfer of immediately available funds to the Administrative Agent not
later than 2:00 p.m., New York City time, on such date (or, if such Revolving
Credit Lender shall have received such notice later than 12:00 (noon), New York
City time, on any day, not later than 10:00 a.m., New York City time, on the
immediately following Business Day), an amount equal to such Lender’s Pro Rata
Percentage of such L/C Disbursement (it being understood that (i) if the
conditions precedent to borrowing set forth in Sections 4.01(b) and (c) have
been satisfied, such amount shall be deemed to constitute an ABR Revolving Loan
of such Lender and, to the extent of such payment, the obligations of the
Borrower in respect of such L/C Disbursement shall be discharged and replaced
with the resulting ABR Revolving Credit Borrowing, and (ii) if such conditions
precedent to borrowing have not been satisfied, then any such amount paid by
any Revolving Credit Lender shall not constitute a Loan and shall not relieve
the Borrower from its obligation to reimburse such L/C Disbursement), and the
Administrative Agent will promptly pay to the Issuing Bank amounts so received
by it from the Revolving Credit Lenders. The Administrative Agent will promptly
pay to the Issuing Bank any amounts received by it from the Borrower pursuant
to Section 2.23(e) prior to the time that any Revolving Credit Lender makes any
payment pursuant to this paragraph (f); any such amounts received by the
Administrative Agent thereafter will be promptly remitted by the Administrative
Agent to the Revolving Credit Lenders that shall have made such payments and to
the Issuing Bank, as their interests may appear. If any Revolving Credit Lender
shall not have made its Pro Rata Percentage of such L/C Disbursement available
to the Administrative Agent as provided above, such Lender and the Borrower
severally agree to pay interest on such amount, for each day from and including
the date such amount is required to be paid in accordance with this paragraph
(f) to but excluding the date such amount is paid, to the Administrative Agent
for the account of the Issuing Bank at (i) in the case of the Borrower, a rate
per annum equal to the interest rate applicable to Revolving Loans pursuant to
Section 2.06(a), and (ii) in the case of such Lender, for the first such day,
the Federal Funds Effective Rate, and for each day thereafter, the Alternate
Base Rate.


 


30

















 


SECTION 2.03. Borrowing Procedure.  In
order to request a Borrowing (other than a Swingline Loan or a deemed Borrowing
pursuant to Section 2.02(f), as to which this Section 2.03 shall not apply),
the Borrower shall notify the Administrative Agent of such request by telephone
(a) in the case of a Eurodollar Borrowing, not later than 12:00 (noon), New
York City time, three Business Days before a proposed Borrowing, and (b) in the
case of an ABR Borrowing, not later than 12:00 noon, New York City time, one
Business Day before a proposed Borrowing. Each such telephonic Borrowing
Request shall be irrevocable, and shall be confirmed promptly by hand delivery
or fax to the Administrative Agent of a written Borrowing Request and shall
specify the following information: (i) whether the Borrowing then being
requested is to be a Term Borrowing, an Incremental Term Borrowing or a
Revolving Credit Borrowing, and whether such Borrowing is to be a Eurodollar
Borrowing or an ABR Borrowing; (ii) the date of such Borrowing (which shall be
a Business Day); (iii) the number and location of the account to which funds
are to be disbursed; (iv) the amount of such Borrowing; and (v) if such
Borrowing is to be a Eurodollar Borrowing, the Interest Period with respect
thereto; provided, however, that,
notwithstanding any contrary specification in any Borrowing Request, each
requested Borrowing shall comply with the requirements set forth in Section
2.02. If no election as to the Type of Borrowing is specified in any such
notice, then the requested Borrowing shall be an ABR Borrowing. If no Interest
Period with respect to any Eurodollar Borrowing is specified in any such
notice, then the Borrower shall be deemed to have selected an Interest Period
of one month’s duration. The Administrative Agent shall promptly advise the
applicable Lenders of any notice given pursuant to this Section 2.03 (and the
contents thereof), and of each Lender’s portion of the requested Borrowing.


 


SECTION 2.04. Evidence of Debt; Repayment of
Loans. (a) The
Borrower hereby unconditionally promises to pay to the Administrative Agent for
the account of each Lender (i) the principal amount of each Term Loan of such
Lender as provided in Section 2.11 and (ii) the then unpaid principal amount of
each Revolving Loan of such Lender on the Revolving Credit Maturity Date. The
Borrower hereby promises to pay to the Swingline Lender the then unpaid
principal amount of each Swingline Loan on the Revolving Credit Maturity Date.


 


(b)           Each
Lender shall maintain in accordance with its usual practice an account or
accounts evidencing the indebtedness of the Borrower to such Lender resulting
from each Loan made by such Lender from time to time, including the amounts of
principal and interest payable and paid to such Lender from time to time under
this Agreement.


 


(c)           The Administrative Agent shall
maintain accounts in which it will record (i)
the amount of each Loan made hereunder, the Class and Type thereof
and, if applicable, the Interest Period applicable thereto, (ii) the amount of
any principal or interest due and payable or to become due and payable from the
Borrower to each Lender hereunder and (iii) the amount of any sum received by
the Administrative Agent hereunder from the Borrower or any Guarantor and each
Lender’s share thereof.


 


(d)           The entries made in the accounts
maintained pursuant to paragraphs (b) and (c) above shall be prima facie evidence
of the existence and amounts of the


 


31

















 


obligations therein
recorded; provided, however, that
the failure of any Lender or the Administrative Agent to maintain such accounts
or any error therein shall not in any manner affect the obligations of the
Borrower to repay the Loans in accordance with their terms.


 


(e)           Any
Lender may request that Loans made by it hereunder be evidenced by a promissory
note. In such event, the Borrower shall execute and deliver to such Lender a
promissory note payable to such Lender and its registered assigns and in a form
and substance reasonably acceptable to the Administrative Agent and the
Borrower. Notwithstanding any other provision of this Agreement, in the event
any Lender shall request and receive such a promissory note, the interests
represented by such note shall at all times (including after any assignment of
all or part of such interests pursuant to Section 9.04) be represented by one
or more promissory notes payable to the payee named therein or its registered
assigns.


 


SECTION 2.05. Fees. (a) The Borrower agrees to pay to each
Revolving Credit Lender, through the Administrative Agent, on the last Business
Day of March, June, September and December in each year, commencing September
28, 2007 and on each date on which any Revolving Credit Commitment of such
Lender shall expire or be terminated as provided herein, a commitment fee (a “Commitment
Fee”)  equal to 0.50% per annum on the
daily unused amount of the Revolving Credit Commitment of such Lender during
the preceding quarter (or other period commencing with the date hereof or
ending with the Revolving Credit Maturity Date or the date on which the
Revolving Credit Commitments of such Lender shall expire or be terminated). All
Commitment Fees shall be computed on the basis of the actual number of days
elapsed in a year of 360 days. For purposes of calculating Commitment Fees
only, no portion of the Revolving Credit Commitments shall be deemed utilized
as a result of outstanding Swingline Loans.


 


(b)           The Borrower agrees to pay to the
Administrative Agent, for its own account, the administrative fees set forth in
the Fee Letter at the times and in the amounts specified therein (the “Administrative Agent Fees”).


 


(c)           The Borrower agrees to pay (i) to
each Revolving Credit Lender, through the Administrative Agent, on the last
Business Day of March, June, September and December of each year, commencing
September 28, 2007 and on the date on which the Revolving Credit Commitment of
such Lender shall be terminated as provided herein, a fee (an “L/C
Participation Fee”)  calculated on such Lender’s Pro
Rata Percentage of the daily aggregate L/C Exposure (excluding the portion
thereof attributable to unreimbursed L/C Disbursements) during the preceding
quarter (or shorter period commencing with the date hereof or ending with the
Revolving Credit Maturity Date or the date on which all Letters of Credit have
been canceled or have expired and the Revolving Credit Commitments of all
Lenders shall have been terminated) at a rate per annum equal to the Applicable
Percentage from time to time used to determine the interest rate on Revolving
Credit Borrowings comprised of Eurodollar Loans pursuant to Section 2.06, and
(ii) to the Issuing Bank with respect to each Letter of Credit the standard
fronting, issuance and drawing fees specified from time to time by the Issuing
Bank (the “Issuing Bank Fees”).


 


32

















 


All L/C Participation
Fees and Issuing Bank Fees shall be computed on the basis of the actual number
of days elapsed in a year of 360 days.


 


(d)           All Fees shall be paid on the dates
due, in immediately available funds, to the Administrative Agent for
distribution, if and as appropriate, among the Lenders, except that the Issuing
Bank Fees shall be paid directly to the Issuing Bank. Once paid, none of the
Fees shall be refundable under any circumstances.


 


SECTION 2.06. Interest on Loans. (a) Subject to the provisions of Section
2.07, the Loans comprising each ABR Borrowing, including each Swingline Loan,
shall bear interest (computed on the basis of the actual number of days elapsed
over a year of 365 or 366 days, as the case may be, when the Alternate Base
Rate is determined by reference to the Prime Rate and over a year of 360 days
at all other times and calculated from and including the date of such Borrowing
to but excluding the date of repayment thereof) at a rate per annum equal to
the Alternate Base Rate plus the Applicable Percentage in effect from time to
time.


 


(b)           Subject to the provisions of Section
2.07, the Loans comprising each Eurodollar Borrowing shall bear interest
(computed on the basis of the actual number of days elapsed over a year of 360
days) at a rate per annum equal to the Adjusted LIBO Rate for the Interest
Period in effect for such Borrowing plus the Applicable Percentage in effect
from time to time.


 


(c)           Interest on each Loan shall be
payable on the Interest Payment Dates applicable to such Loan except as
otherwise provided in this Agreement. The applicable Alternate Base Rate or
Adjusted LIBO Rate for each Interest Period or day within an Interest Period,
as the case may be, shall be determined by the Administrative Agent, and such
determination shall be conclusive absent manifest error.


 


SECTION 2.07. Default Interest. If the Borrower shall default in the
payment of any principal of or interest on any Loan or any other amount due
hereunder, by acceleration or otherwise, or under any other Loan Document, then,
until such defaulted amount shall have been paid in full, to the extent
permitted by law, all overdue amounts outstanding under this Agreement and the
other Loan Documents shall bear interest (after as well as before judgment),
payable on demand, (a) in the case of principal, at the rate otherwise
applicable to such Loan pursuant to Section 2.06 plus 2.00% per annum and (b)
in all other cases, at a rate per annum (computed on the basis of the actual
number of days elapsed over a year of 365 or 366 days, as the case may be, when
determined by reference to the Prime Rate and over a year of 360 days at all
other times) equal to the rate that would be applicable to an ABR Loan plus
2.00% per annum.


 


SECTION 2.08. Alternate Rate of Interest. In the event, and on each occasion, that
on the day two Business Days prior to the commencement of any Interest Period
for a Eurodollar Borrowing the Administrative Agent shall have determined that
dollar deposits in the principal amounts of the Loans comprising such Borrowing
are not generally available in the London interbank market, or that the rates
at which such dollar deposits are being offered will not adequately and fairly
reflect the cost to any Lender of


 


33

















 


making or maintaining its Eurodollar Loan during such
Interest Period, or that reasonable means do not exist for ascertaining the
Adjusted LIBO Rate, the Administrative Agent shall, as soon as practicable
thereafter, give written or fax notice of such determination to the Borrower
and the Lenders. In the event of any such determination, until the
Administrative Agent shall have advised the Borrower and the Lenders that the
circumstances giving rise to such notice no longer exist, any request by the
Borrower for a Eurodollar Borrowing pursuant to Section 2.03 or 2.10 shall be
deemed to be a request for an ABR Borrowing. Each determination by the
Administrative Agent under this Section 2.08 shall be conclusive absent
manifest error.


 


SECTION 2.09. Termination and Reduction of
Commitments.  (a)
The Term Loan Commitments (other than any Incremental Term Loan Commitments,
which shall terminate as provided in the related Incremental Term Loan
Assumption Agreement) shall automatically terminate upon the making of the Term
Loans on the Closing Date. The Revolving Credit Commitments and the Swingline
Commitment shall automatically terminate on the Revolving Credit Maturity Date.
The L/C Commitment shall automatically terminate on the earlier to occur of (i)
the termination of the Revolving Credit Commitments and (ii) the date 30 days
prior to the Revolving Credit Maturity Date. Notwithstanding the foregoing, all
the Commitments shall automatically terminate at 5:00 p.m., New York City time,
on June 30, 2007, or such earlier date on which the Merger Agreement
terminates, if the initial Credit Event shall not have occurred by such time.


 


(b)           Upon at least three Business Days’
prior irrevocable written or fax notice to the Administrative Agent, the
Borrower may at any time in whole permanently terminate, or from time to time
in part permanently reduce, the Term Loan Commitments, the Revolving Credit
Commitments or the Swingline Commitment; provided,
however, that (i) each partial reduction of the Revolving Credit
Commitments shall be in an integral multiple of $1,000,000 and in a minimum
amount of $1,000,000, (ii) each partial reduction of the Swingline Commitment
shall be in an integral multiple of $1,000,000 and in a minimum amount of $1,000,000
and (iii) the Total Revolving Credit Commitment shall not be reduced to an
amount that is less than the Aggregate Revolving Credit Exposure at the time.


 


(c)           Each reduction in the Term Loan
Commitments or the Revolving Credit Commitments hereunder shall be made ratably
among the Lenders in accordance with their respective applicable Commitments.
The Borrower shall pay to the Administrative Agent for the account of the
applicable Lenders, on the date of each termination or reduction, the
Commitment Fees on the amount of the Commitments so terminated or reduced
accrued to but excluding the date of such termination or reduction.


 


SECTION 2.10. Conversion and Continuation of
Borrowings. The Borrower
shall have the right at any time upon prior irrevocable notice to the
Administrative Agent (a) not later than 12:00 (noon), New York City time, one
Business Day prior to conversion, to convert any Eurodollar Borrowing into an
ABR Borrowing, (b) not later than 12:00 (noon), New York City time, three
Business Days prior to conversion or continuation, to convert any ABR Borrowing
into a Eurodollar Borrowing or to continue


 


34

















 


any Eurodollar Borrowing as a Eurodollar Borrowing for
an additional Interest Period, and (c) not later than 12:00 (noon), New York
City time, three Business Days prior to conversion, to convert the Interest
Period with respect to any Eurodollar Borrowing to another permissible Interest
Period, subject in each case to the following:


 


(i) until the Administrative Agent shall have notified the
Borrower that the primary syndication of the Commitments has been completed
(which notice shall be given as promptly as practicable and, in any event,
within 30 days after the Closing Date), no LIBOR Borrowing may have an Interest
Period in excess of one month;


 


(ii) each
conversion or continuation shall be made pro rata among the Lenders in
accordance with the respective principal amounts of the Loans comprising the
converted or continued Borrowing;


 


(iii) if less than
all the outstanding principal amount of any Borrowing shall be converted or
continued, then each resulting Borrowing shall satisfy the limitations
specified in Sections 2.02(a) and 2.02(b) regarding the principal amount and
maximum number of Borrowings of the relevant Type;


 


(iv) each
conversion shall be effected by each Lender and the Administrative Agent by
recording for the account of such Lender the new Loan of such Lender resulting
from such conversion and reducing the Loan (or portion thereof) of such Lender
being converted by an equivalent principal amount; accrued interest on any
Eurodollar Loan (or portion thereof) being converted shall be paid by the
Borrower at the time of conversion;


 


(v) if any
Eurodollar Borrowing is converted at a time other than the end of the Interest
Period applicable thereto, the Borrower shall pay, upon demand, any amounts due
to the Lenders pursuant to Section 2.16;


 


(vi) any portion
of a Borrowing maturing or required to be repaid in less than one month may not
be converted into or continued as a Eurodollar Borrowing;


 


(vii) any portion
of a Eurodollar Borrowing that cannot be converted into or continued as a
Eurodollar Borrowing by reason of the immediately preceding clause shall be
automatically converted at the end of the Interest Period in effect for such
Borrowing into an ABR Borrowing;


 


(viii) no Interest
Period may be selected for any Eurodollar Term Borrowing that would end later
than a Term Loan Repayment Date occurring on or after the first day of such
Interest Period if, after giving effect to such selection, the aggregate
outstanding amount of (A) the Eurodollar Term Borrowings comprised of Term
Loans or Other Term Loans, as applicable, with Interest Periods ending on or
prior to such Term Loan Repayment Date and (B) the ABR Term Borrowings
comprised of Term Loans or Other Term Loans, as


 


35

















 


applicable, would not be
at least equal to the principal amount of Term Borrowings to be paid on such
Term Loan Repayment Date; and


 


(ix) upon notice
to the Borrower from the Administrative Agent given at the request of the
Required Lenders, after the occurrence and during the continuance of a Default
or Event of Default, no outstanding Loan may be converted into, or continued as,
a Eurodollar Loan.


 


Each notice pursuant to
this Section 2.10 shall be irrevocable and shall refer to this Agreement and
specify (i) the identity and amount of the Borrowing that the Borrower requests
be converted or continued, (ii) whether such Borrowing is to be converted to or
continued as a Eurodollar Borrowing or an ABR Borrowing, (iii) if such notice
requests a conversion, the date of such conversion (which shall be a Business
Day) and (iv) if such Borrowing is to be converted to or continued as a
Eurodollar Borrowing, the Interest Period with respect thereto. If no Interest
Period is specified in any such notice with respect to any conversion to or
continuation as a Eurodollar Borrowing, the Borrower shall be deemed to have
selected an Interest Period of one month’s duration. The Administrative Agent
shall advise the Lenders of any notice given pursuant to this Section 2.10 and
of each Lender’s portion of any converted or continued Borrowing. If the
Borrower shall not have given notice in accordance with this Section 2.10 to
continue any Borrowing into a subsequent Interest Period (and shall not
otherwise have given notice in accordance with this Section 2.10 to convert
such Borrowing), such Borrowing shall, at the end of the Interest Period
applicable thereto (unless repaid pursuant to the terms hereof), automatically
be continued into an ABR Borrowing.


 


SECTION
2.11. Repayment of Term
Borrowings.  (a) (i) The Borrower shall pay to the
Administrative Agent, for the account of the Lenders, on the last Business Day
of each March, June, September and December, commencing September 28, 2007
(each such date being called a “Repayment Date”), a principal
amount of the Term Loans other than Other Term Loans (as adjusted from time to
time pursuant to Sections 2.11(b), 2.12, and 2.13(f) and 2.24(d)) equal to
0.25% of the principal amount of the Term Loans, together in each case with
accrued and unpaid interest on the principal amount to be paid to but excluding
the date of such payment.


 


(ii) The Borrower shall
pay to the Administrative Agent, for the account of the Incremental Term
Lenders, on each Incremental Term Loan Repayment Date, a principal amount of
the Other Term Loans (as adjusted from time to time pursuant to Sections
2.11(b), 2.12 and 2.13(f)) equal to the amount set forth for such date in the
applicable Incremental Term Loan Assumption Agreement, together in each case
with accrued and unpaid interest on the principal amount to be paid to but
excluding the date of such payment.


 


(b) In the event and on each occasion that the Term
Loan Commitments shall be reduced or shall expire or terminate other than as a
result of the making of a Term Loan, the installments payable on each Repayment
Date shall be reduced pro rata by an aggregate amount equal to the amount of
such reduction, expiration or termination.


 


36














 


(c)   To the extent not previously paid, all Term Loans
and Other Term Loans shall be due and payable on the Term Loan Maturity Date
and the Incremental Term Loan Maturity Date, respectively, together with
accrued and unpaid interest on the principal amount to be paid to but excluding
the date of payment.


 


(d)   All repayments pursuant to this Section 2.11 shall
be subject to Section 2.16, but shall otherwise be without premium or penalty.


 


SECTION 2.12. Optional Prepayment. (a) The Borrower shall have the right at any time and from
time to time to prepay any Borrowing, in whole or in part, upon at least three
Business Days’ prior written or fax notice (or telephone notice promptly
confirmed by written or fax notice) in the case of Eurodollar Loans, or written
or fax notice (or telephone notice promptly confirmed by written or fax notice)
at least one Business Day prior to the date of prepayment in the case of ABR
Loans, to the Administrative Agent before 12:00 (noon), New York City time; provided, however, that each partial
prepayment shall be in an amount that is an integral multiple of $100,000 and
not less than $1,000,000.


 


(b)   Optional prepayments of Term Loans shall be
allocated among the Term Loans and the Other Term Loans, if any, as determined
by the Borrower and shall be applied against the remaining scheduled
installments of principal due in respect of the Term Loans under Section 2.11
as instructed by the Borrower in the notice set forth in Section 2.12(c), provided that if such notice omits such
instructions, optional prepayments of Term Loans shall be applied pro rata
against such remaining scheduled installments of principal due in respect of
the Term Loans under Section 2.11.


 


(c)   Each notice of prepayment shall specify the
prepayment date, the principal amount of each Borrowing (or portion thereof) to
be prepaid and instructions with respect to the application under Section
2.12(b) of any prepayments of Term Loans, shall be irrevocable (unless such
notice is expressly conditioned upon a refinancing of the Credit Facilities, in
which case such notice may be rescinded if such refinancing shall not be
consummated or shall otherwise be delayed) and shall commit the Borrower to
prepay such Borrowing by the amount stated therein on the date stated therein.
All prepayments under this Section 2.12 shall be subject to Section 2.16 but
otherwise without premium or penalty. All prepayments under this Section 2.12
(other than prepayments of ABR Revolving Loans that are not made in connection
with the termination or permanent reduction of the Revolving Credit
Commitments) shall be accompanied by accrued and unpaid interest on the
principal amount to be prepaid to but excluding the date of payment.


 


SECTION 2.13. Mandatory Prepayments. (a) In the event of any termination of
all the Revolving Credit Commitments, the Borrower shall, on the date of such
termination, repay or prepay all its outstanding Revolving Credit Borrowings
and all outstanding Swingline Loans and replace or cause to be canceled (or
make other arrangements satisfactory to the Administrative Agent and the
Issuing Bank with respect to) all outstanding Letters of Credit. If, after
giving effect to any partial reduction of the Revolving Credit Commitments or
at any other time, the Aggregate Revolving Credit


 


37

















 


Exposure would exceed the Total Revolving Credit Commitment, then the
Borrower shall, on the date of such reduction or at such other time, repay or
prepay Revolving Credit Borrowings or Swingline Loans (or a combination
thereof) and, after the Revolving Credit Borrowings and Swingline Loans shall
have been repaid or prepaid in full, replace or cause to be canceled (or make
other arrangements satisfactory to the Administrative Agent and the Issuing
Bank with respect to) Letters of Credit in an amount sufficient to eliminate
such excess.


 


(b)   Not later than the third
Business Day following the receipt of Net Cash Proceeds in respect of any Asset
Sale, the Borrower shall apply 100% of the Net Cash Proceeds received with
respect thereto to prepay outstanding Term Loans in accordance with Section
2.13(g).


 


(c)   In the event and on each
occasion that an Specified Equity Issuance occurs, the Borrower shall,
substantially simultaneously with (and in any event not later than the third
Business Day next following) the occurrence of such Specified Equity Issuance,
apply 50% of the Net Cash Proceeds therefrom to prepay outstanding Term Loans
in accordance with Section 2.13(g).


 


(d)   No later than the later of (i)  120 days after the end of each fiscal
year of the Borrower, commencing with the fiscal year ending on December 31,
2007, and (ii) the 10th day subsequent to the date on which the financial
statements with respect to such period are delivered pursuant to Section
5.04(a), the Borrower shall prepay outstanding Term Loans in accordance with
Section 2.13(g) in an aggregate principal amount equal to the Required
Prepayment Percentage of Excess Cash Flow for the fiscal year then ended.


 


(e)   In the event that any Loan Party or any subsidiary
of a Loan Party shall receive Net Cash Proceeds from the issuance or incurrence
of Indebtedness for money borrowed of any Loan Party or any subsidiary of a
Loan Party (other than any cash proceeds from the issuance or renewal of
Indebtedness permitted pursuant to Section 6.01), the Borrower shall,
substantially simultaneously with (and in any event not later than the third
Business Day next following) the receipt of such Net Cash Proceeds by such Loan
Party or such subsidiary, apply an amount equal to 100% of such Net Cash
Proceeds to prepay outstanding Term Loans in accordance with Section 2.13(g).


 


(f)   Notwithstanding the foregoing, any Term Lender may
elect, by written notice to the Administrative Agent at the time and in the
manner specified by the Administrative Agent, to decline all (but not less than
all) of its pro rata share of such mandatory prepayment of its Term Loans
pursuant to this Section 2.13 (such declined amounts, the “Declined Proceeds”). Any
Declined Proceeds shall be offered to the Term Lenders not so declining such
prepayment (with such Term Lenders having the right to decline any prepayment
with Declined Proceeds at the time and in the manner specified by the
Administrative Agent). To the extent such Term Lenders elect to decline their
pro rata shares of such Declined Proceeds, such remaining Declined Proceeds
shall be applied in accordance with the mandatory prepayment provisions of the
Second Lien Term Loan Agreement, and any portion remaining thereafter may be
retained by the Borrower. 


 


38

















 


(g)   Mandatory prepayments of outstanding Term Loans
under this Agreement shall be allocated pro rata between the Term Loans and the
Other Term Loans and applied first against the remaining scheduled installments
of principal due in respect of the Term Loans under Section 2.11(a)(i) in the
direct order of repayment for the next six Repayment Dates after such
prepayment and thereafter pro rata against the remaining scheduled installments
of principal due in respect of the Term Loans and the Other Term Loans under
Sections 2.11 (a)(i) and (ii), respectively; provided,
however, that, if at the time of any prepayment pursuant to this
Section 2.13 there shall be Term Borrowings of different Types or Eurodollar
Term Borrowings with different Interest Periods, and if some but not all Term
Lenders shall have accepted such mandatory prepayment, then the aggregate
amount of such mandatory prepayment shall be allocated ratably to each
outstanding Term Borrowing of the accepting Term Lenders. If no Term Lenders
exercise the right to waive a given mandatory prepayment of the Term Loans
pursuant to Section 2.13(f), then, with respect to such mandatory prepayment,
the amount of such mandatory prepayment shall be applied first to Term Loans
that are ABR Loans to the full extent thereof before application to Term Loans
that are Eurodollar Loans in a manner that minimizes the amount of any payments
required to be made by the Borrower pursuant to Section 2.16.


 


(h)   Notwithstanding anything
in this Section 2.13, at such time as no Term Loans or Other Term Loans are
outstanding, if Revolving Loans or Letters of Credit are outstanding at such
time, all amounts required to be prepaid pursuant to Sections 2.13(b), (c), (d)
and (e) shall be applied mutatis mutandis:
first, ratably to prepay outstanding Revolving Loans and Swingline
Loans, second, at such time as no
Revolving Loans are outstanding, to cash collateralize any outstanding Letters
of Credit and third, as may be
required pursuant to the mandatory prepayment provisions of the Second Lien
Term Loan Agreement.


 


(i)   The
Borrower shall deliver to the Administrative Agent, at the time of each
prepayment required under this Section 2.13, (i) a certificate signed by a
Financial Officer of the Borrower setting forth in reasonable detail the
calculation of the amount of such prepayment and (ii) to the extent
practicable, at least three days prior written notice of such prepayment. Each
notice of prepayment shall specify the prepayment date, the Type of each Loan
being prepaid (or the cash collateralization of a Letter of Credit) and the
principal amount of each Loan (or portion thereof) to be prepaid (or Letter of
Credit to be cash collateralized). All prepayments of Borrowings under this
Section 2.13 shall be subject to Section 2.16, but shall otherwise be without
premium or penalty, and shall be accompanied by accrued and unpaid interest on
the principal amount to be prepaid to but excluding the date of payment.


 


SECTION 2.14. Reserve
Requirements; Change in Circumstances. (a) Notwithstanding any other provision of this Agreement,
if any Change in Law shall impose, modify or deem applicable any reserve,
special deposit or similar requirement against assess of, deposits with or for
the account of or credit extended by any Lender or the Issuing Bank (except any
such reserve requirement which is reflected in the Adjusted LIBO Rate) or shall
impose on such Lender or the Issuing Bank or the London interbank market any
other condition affecting this Agreement or Eurodollar Loans made by such


 


39

















 


Lender or any Letter of Credit or participation therein, and the result
of any of the foregoing shall be to increase the cost to such Lender or the
Issuing Bank of making or maintaining any Eurodollar Loan or increase the cost
to any Lender of issuing or maintaining any Letter of Credit or purchasing or
maintaining a participation therein or to reduce the amount of any sum received
or receivable by such Lender or the Issuing Bank hereunder (whether of
principal, interest or otherwise) by an amount deemed by such Lender or the
Issuing Bank to be material, then the Borrower will pay to such Lender or the
Issuing Bank, as the case may be, upon demand such additional amount or amounts
as will compensate such Lender or the Issuing Bank, as the case may be, for
such additional costs incurred or reduction suffered.


 


(b)   If any Lender or the Issuing Bank shall have
determined that any Change in Law regarding capital adequacy has or would have
the effect of reducing the rate of return on such Lender’s or the Issuing
Bank’s capital or on the capital of such Lender’s or the Issuing Bank’s holding
company, if any, as a consequence of this Agreement or the Loans made or
participations in Letters of Credit purchased by such Lender pursuant hereto or
the Letters of Credit issued by the Issuing Bank pursuant hereto to a level
below that which such Lender or the Issuing Bank or such Lender’s or the
Issuing Bank’s holding company could have achieved but for such Change in Law
(taking into consideration such Lender’s or the Issuing Bank’s policies and the
policies of such Lender’s or the Issuing Bank’s holding company with respect to
capital adequacy) by an amount deemed by such Lender or the Issuing Bank to be
material, then from time to time the Borrower shall pay to such Lender or the
Issuing Bank, as the case may be, such additional amount or amounts as will
compensate such Lender or the Issuing Bank or such Lender’s or the Issuing
Bank’s holding company for any such reduction suffered.


 


(c)   A certificate of a Lender or the Issuing Bank
setting forth the amount or amounts necessary to compensate such Lender or the
Issuing Bank or its holding company, as applicable, as specified in paragraph
(a) or (b) above shall be delivered to the Borrower and shall be conclusive
absent manifest error. The Borrower shall pay such Lender or the Issuing Bank
the amount shown as due on any such certificate delivered by it within 10
Business Days after its receipt of the same.


 


(d)   Failure or delay on the part of any Lender or the
Issuing Bank to demand compensation for any increased costs or reduction in
amounts received or receivable or reduction in return on capital shall not
constitute a waiver of such Lender’s or the Issuing Bank’s right to demand such
compensation; provided that the
Borrower shall not be under any obligation to compensate any Lender or the
Issuing Bank under paragraph (a) or (b) above with respect to increased costs
or reductions with respect to any period prior to the date that is 120 days
prior to such request if such Lender or the Issuing Bank knew or could
reasonably have been expected to know of the circumstances giving rise to such
increased costs or reductions and of the fact that such circumstances would
result in a claim for increased compensation by reason of such increased costs
or reductions; provided further that
the foregoing limitation shall not apply to any increased costs or reductions
arising out of the retroactive application of any Change in Law within such
120-day period. The protection of this Section 2.14 shall be available to each
Lender and


 


40

















 


the Issuing Bank regardless of any possible contention of the
invalidity or inapplicability of the Change in Law that shall have occurred or
been imposed.


 


SECTION 2.15. Change
in Legality. (a)
Notwithstanding any other provision of this Agreement, if any Change in Law
shall make it unlawful for any Lender to make or maintain any Eurodollar Loan
or to give effect to its obligations as contemplated hereby with respect to any
Eurodollar Loan, then, by written notice to the Borrower and to the
Administrative Agent:


 


(i)  such Lender may declare
that Eurodollar Loans will not thereafter (for the duration of such
unlawfulness) be made by such Lender hereunder (or be continued for additional
Interest Periods) and ABR Loans will not thereafter (for such duration) be converted
into Eurodollar Loans, whereupon any request for a Eurodollar Borrowing (or to
convert an ABR Borrowing to a Eurodollar Borrowing or to continue a Eurodollar
Borrowing for an additional Interest Period) shall, as to such Lender only, be
deemed a request for an ABR Loan (or a request to continue an ABR Loan as such
for an additional Interest Period or to convert a Eurodollar Loan into an ABR
Loan, as the case may be), unless such declaration shall be subsequently
withdrawn; and


 


(ii) such Lender may require that all
outstanding Eurodollar Loans made by it be converted to ABR Loans, in which
event all such Eurodollar Loans shall be automatically converted to ABR Loans
as of the effective date of such notice as provided in paragraph (b) below.


 


In the event
any Lender shall exercise its rights under (i) or (ii) above, all payments and
prepayments of principal that would otherwise have been applied to repay the
Eurodollar Loans that would have been made by such Lender or the converted
Eurodollar Loans of such Lender shall instead be applied to repay the ABR Loans
made by such Lender in lieu of, or resulting from the conversion of, such
Eurodollar Loans.


 


(b)   For purposes of this
Section 2.15, a notice to the Borrower by any Lender shall be effective as to
each Eurodollar Loan made by such Lender, if lawful, on the last day of the
Interest Period then applicable to such Eurodollar Loan; in all other cases
such notice shall be effective on the date of receipt by the Borrower.


 


SECTION 2.16. Indemnity.
The Borrower shall indemnify each Lender against any loss or expense
that such Lender may sustain or incur as a consequence of (a) any event, other
than a default by such Lender in the performance of its obligations hereunder,
which results in (i) such Lender receiving or being deemed to receive any
amount on account of the principal of any Eurodollar Loan prior to the end of
the Interest Period in effect therefor, (ii) the conversion of any Eurodollar
Loan to an ABR Loan, or the conversion of the Interest Period with respect to
any Eurodollar, Loan, in each case other than on the last day of the Interest
Period in effect therefor, or (iii) any Eurodollar Loan to be made by such
Lender, including any Eurodollar Loan to be made pursuant to a conversion or
continuation under Section 2.10) not being made after notice of such Loan shall
have been given by the Borrower hereunder (any of the events referred to in


 


41

















 


this clause
(a) being called a “Breakage Event”)  or (b) any default in the making of any
payment or prepayment required to be made hereunder. In the case of any
Breakage Event, such loss shall include an amount equal to the excess, as
reasonably determined by such Lender, of (i) its cost of obtaining funds for the
Eurodollar Loan that is the subject of such Breakage Event for the period from
the date of such Breakage Event to the last day of the Interest Period in
effect (or that would have been in effect) for such Loan over (ii) the amount
of interest likely to be realized by such Lender in redeploying the funds
released or not utilized by reason of such Breakage Event for such period. A
certificate of any Lender setting forth any amount or amounts that such Lender
is entitled to receive pursuant to this Section 2.16 shall be delivered to the
Borrower and shall be conclusive absent manifest error.


 


SECTION 2.17. Pro Rata
Treatment. Except
as provided below in this Section 2.17 with respect to Swingline Loans and as
required under Section 2.13(f), 2.13(h) or 2.15, each Borrowing, each payment
or prepayment of principal of any Borrowing, each payment of interest on the
Loans, each payment of the Commitment Fees, each reduction of the Term Loan
Commitments or the Revolving Credit Commitments and each conversion of any
Borrowing to or continuation of any Borrowing as a Borrowing of any Type shall
be allocated pro rata among the Lenders in accordance with their respective
applicable Commitments (or, if such Commitments shall have expired or been
terminated, in accordance with the respective principal amounts of their
outstanding Loans). For purposes of determining the available Revolving Credit
Commitments of the Lenders at any time, each outstanding Swingline Loan shall
be deemed to have utilized the Revolving Credit Commitments of the Lenders
(including those Lenders which shall not have made Swingline Loans) pro rata in
accordance with such respective Revolving Credit Commitments. Each Lender
agrees that in computing such Lender’s portion of any Borrowing to be made hereunder,
the Administrative Agent may, in its discretion, round each Lender’s percentage
of such Borrowing to the next higher or lower whole dollar amount.


 


SECTION 2.18. Sharing of Setoffs. Each Lender agrees that if it shall, through the exercise
of a right of banker’s lien setoff or counterclaim against the Borrower or any
other Loan Party, or pursuant to a secured claim under Section 506 of Title 11
of the United States Code or other security or interest arising from, or in
lieu of, such secured claim, received by such Lender under any applicable
bankruptcy, insolvency or other similar law or otherwise, or by any other
means, obtain payment (voluntary or involuntary) in respect of any Loan or
Loans or L/C Disbursement as a result of which the unpaid principal portion of
its Loans and participations in L/C Disbursements shall be proportionately less
than the unpaid principal portion of the Loans and participations in L/C
Disbursements of any other Lender, it shall be deemed simultaneously to have
purchased from such other Lender at face value, and shall promptly pay to such
other Lender the purchase price for, a participation in the Loans and L/C
Exposure of such other Lender, so that the aggregate unpaid principal amount of
the Loans and L/C Exposure and participations in Loans and L/C Exposure held by
each Lender shall be in the same proportion to the aggregate unpaid principal
amount of all Loans and L/C Exposure then outstanding as the principal amount
of its Loans and L/C Exposure prior to such exercise of banker’s lien, setoff
or counterclaim or other event was to the principal


 


42

















 


amount of all
Loans and L/C Exposure outstanding prior to such exercise of banker’s lien,
setoff or counterclaim or other event; provided,
however, that if any such purchase or purchases or adjustments shall
be made pursuant to this Section 2.18 and the payment giving rise thereto shall
thereafter be recovered, such purchase or purchases or adjustments shall be
rescinded to the extent of such recovery and the purchase price or prices or
adjustment restored without interest. The Borrower and Holdings expressly
consent to the foregoing arrangements and agree that any Lender holding a
participation in a Loan or L/C Disbursement deemed to have been so purchased
may exercise any and all rights of banker’s lien, setoff or counterclaim with
respect to any and all moneys owing by the Borrower and Holdings to such Lender
by reason thereof as fully as if such Lender had made a Loan directly to the
Borrower in the amount of such participation.


 


SECTION 2.19. Payments. (a) The Borrower shall make each payment
(including principal of or interest on any Borrowing or any L/C Disbursement or
any Fees or other amounts) hereunder and under any other Loan Document not
later than 12:00 (noon), New York City time, on the date when due in
immediately available dollars, without setoff, defense or counterclaim. Each
such payment (other than (i) Issuing Bank Fees, which shall be paid directly to
the Issuing Bank, and (ii) principal of and interest on Swingline Loans, which
shall be paid directly to the Swingline Lender except as otherwise provided in
Section 2.22(e)) shall be made to the Administrative Agent at its offices at
Eleven Madison Avenue, New York, NY 10010. The Administrative Agent shall
promptly distribute to each Lender any payments received by the Administrative
Agent on behalf of such Lender.


 


(b)   Except as otherwise expressly provided herein,
whenever any payment (including principal of or interest on any Borrowing or
any Fees or other amounts) hereunder or under any other Loan Document shall
become due, or otherwise would occur, on a day that is not a Business Day, such
payment may be made on the next succeeding Business Day, and such extension of
time shall in such case be included in the computation of interest or Fees, if
applicable.


 


(c)   Unless the Administrative Agent shall have
received notice from the Borrower prior to the date on which any payment is due
to the Administrative Agent for the account of the Lenders or the Issuing Bank
hereunder that the Borrower will not make such payment, the Administrative
Agent may assume that the Borrower has made such payment on such date in
accordance herewith and may, in reliance upon such assumption, distribute to
the Lenders or the Issuing Bank, as the case may be, the amount due. In such
event, if the Borrower does not in fact make such payment, then each of the
Lenders or the Issuing Bank, as the case may be, severally agrees to repay to
the Administrative Agent forthwith on demand the amount so distributed to such
Lender, and to pay interest thereon, for each day from and including the date
such amount is distributed to it to but excluding the date of payment to the
Administrative Agent, at a rate determined by the Administrative Agent to
represent its cost of overnight or short-term funds (which determination shall
be conclusive absent manifest error).


 


SECTION 2.20. Taxes. (a)
Any and all payments by or on account of any obligation of the Borrower or any
other Loan Party hereunder or under any other Loan


 


43

















 


Document shall
be made free and clear of and without deduction for any Indemnified Taxes or
Other Taxes; provided that, if
the Borrower or any other Loan Party shall be required to deduct any
Indemnified Taxes or Other Taxes from such payments, then (i) the sum payable
shall be increased as necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this Section
2.20) the Administrative Agent, Lender or Issuing Bank (as the case may be)
receives an amount equal to the sum it would have received had no such
deductions been made, (ii)  the
Borrower or such Loan Party shall make such deductions and (iii) the Borrower
or such Loan Party shall pay the full amount deducted to the relevant
Governmental Authority in accordance with applicable law.


 


(b)   The Borrower shall pay
any Other Taxes to the relevant Governmental Authority in accordance with
applicable law.


 


(c)   The
Borrower shall indemnify the Administrative Agent, each Lender and the Issuing
Bank, within 10 Business Days after written demand therefor, for the full
amount of any Indemnified Taxes or Other Taxes paid by the Administrative Agent,
such Lender or the Issuing Bank, as the case may be, on or with respect to any
payment by or on account of any obligation of the Borrower or any other Loan
Party hereunder or under any other Loan Document (including Indemnified Taxes
or Other Taxes imposed or asserted on or attributable to amounts payable under
this Section 2.20) and any penalties, interest and reasonable expenses arising
therefrom or with respect thereto (other than penalties, interest or other
expenses payable by reason of the deliberate action or inaction of the
Administrative Agent, such Lender or the Issuing Bank, as the case may be),
whether or not such Indemnified Taxes or Other Taxes were correctly or legally
imposed or asserted by the relevant Governmental Authority. A certificate as to
the amount of such payment or liability delivered to the Borrower by a Lender
or the Issuing Bank, or by the Administrative Agent on behalf of itself, a
Lender or the Issuing Bank, shall be conclusive absent manifest error.


 


(d)   As soon as practicable
after any payment of Indemnified Taxes or Other Taxes by the Borrower or any
other Loan Party to a Governmental Authority, the Borrower shall deliver to the
Administrative Agent the original or a certified copy of a receipt issued by
such Governmental Authority evidencing such payment, a copy of the return
reporting such payment or other evidence of such payment reasonably
satisfactory to the Administrative Agent.


 


(e)   Any Foreign Lender that
is entitled to an exemption from or reduction of withholding tax under the law
of the jurisdiction in which the Borrower is located, or any treaty to which
such jurisdiction is a party, with respect to payments under this Agreement or
any other Loan Document shall deliver to the Borrower (with a copy to the
Administrative Agent), at the time or times prescribed by applicable law, such
properly completed and executed documentation prescribed by applicable law or
reasonably requested by the Borrower as will permit such payments to be made
without withholding or at a reduced rate. In addition, any Lender, if requested
by the Borrower or the Administrative Agent, shall deliver such other
documentation prescribed by applicable law or reasonably requested by Borrower
or the Administrative Agent as will enable the


 


44

















 


Borrower or
the Administrative Agent to determine whether or not such Lender is subject to
withholding or information reporting requirements. Without limiting the
generality of the foregoing, any Foreign Lender shall deliver to the Borrower
and the Administrative Agent (in such number of copies as shall be requested by
the recipient) on or prior to the date on which such Foreign Lender becomes a
Lender under this Agreement (and from time to time thereafter upon the request
of the Borrower or the Administrative Agent), two of whichever of the following
is applicable:


 


(i) duly completed original signed copies of
Internal Revenue Service (“IRS”)  Form W-8BEN claiming eligibility
for benefits of an income tax treaty to which the United States of America is a
party,


 


(ii) duly completed original signed copies of IRS Form W-8ECI,


 


(iii) in the case of a Foreign Lender
claiming the benefits of the exemption for portfolio interest under Section
881(c) of the Code, (x) a certificate to the effect that such Foreign Lender is
not (A) a “bank” within the meaning of Section 881(c)(3)(A) of the Code, (B) a
“10 percent shareholder” within the meaning of Section 881(c)(3)(B) of the
Code, or (C) a “controlled foreign corporation” described in Section
881(c)(3)(C) of the Code and (y) duly completed original signed copies of IRS
Form W-BEN, or


 


(iv) any other form prescribed by applicable
law as a basis for claiming exemption from or a reduction in withholding tax
duly completed together with such supplementary documentation as may be
prescribed by applicable law to permit Borrower to determine the withholding or
deduction required to be made.


 


(f)   Any Lender that is a “United States person”, as
defined in Section 7701(a)(30) of the Code, shall deliver to the Borrower and
the Administrative Agent (in such number of copies as shall be requested by the
recipient) on or prior to the date on which such Lender becomes a Lender under
this Agreement (and from time to time thereafter upon the request of the
Borrower or the Administrative Agent) duly completed original signed copies of
IRS Form W-9, or any successor form, in order to comply with U.S. backup
withholding requirements.


 


(g)   If the Administrative Agent, any Lender or the
Issuing Bank receives a refund of any Indemnified Taxes or Other Taxes as to
which it has been indemnified by the Borrower or with respect to which the Borrower
has paid additional amounts pursuant to this Section 2.20, it shall promptly
notify the Borrower of such refund and shall, within 30 days after receipt of
such refund, pay to the Borrower an amount equal to such refund, net of all
out-of-pocket expenses of the Administrative Agent, such Lender or such Issuing
Bank, as the case may be; provided, however,
that the Borrower, upon the request of the Administrative Agent,
such Lender or the Issuing Bank, as applicable, agrees to repay the amount paid
over to the Borrower to the Administrative Agent, such Lender or the Issuing
Bank, as applicable, in the event of the Administrative Agent, such Lender or
the Issuing Bank is required to repay such refund. This paragraph shall not be
construed to require the Administrative Agent, any Lender or any Issuing Bank
to make available


 


45

















 


its tax returns (or any other information relating to its taxes that it
deems confidential) to the Borrower or any other person.


 


SECTION 2.21. Assignment
of Commitments Under Certain Circumstances; Duty to Mitigate.  (a) In the event (i) any Lender or the
Issuing Bank delivers a certificate requesting compensation pursuant to Section
2.14, (ii) any Lender or the Issuing Bank delivers a notice described in
Section 2.15, (iii) the Borrower is required to pay any additional amount to
any Lender or the Issuing Bank or any Governmental Authority on account of any
Lender or the Issuing Bank pursuant to Section 2.20 or (iv) any Lender refuses
to consent to any amendment, waiver or other modification of any Loan Document
requested by the Borrower that requires the consent of a greater percentage of
the Lenders than the Required Lenders and such amendment, waiver or other
modification is consented to by the Required Lenders, the Borrower may, at its
sole expense and effort (including with respect to the processing and
recordation fee referred to in Section 9.04(b)), upon notice to such Lender or
the Issuing Bank, as the case may be, and the Administrative Agent, require
such Lender or the Issuing Bank to transfer and assign, without recourse (in
accordance with and subject to the restrictions contained in Section 9.04), all
of its interests, rights and obligations under this Agreement (or, in the case
of clause (iv) above, all of its interests, rights and obligation with respect
to the Class of Loans or Commitments that is the subject of the related
consent, amendment, waiver or other modification) to an Eligible Assignee that
shall assume such assigned obligations and, with respect to clause (iv) above,
shall consent to such requested amendment, waiver or other modification of any
Loan Document (which Eligible Assignee may be another Lender, if a Lender
accepts such assignment); provided that
(x) such assignment shall not conflict with any law, rule or regulation or
order of any court or other Governmental Authority having jurisdiction, (y) the
Borrower shall have received the prior written consent of the Administrative
Agent (and if a Revolving Credit Commitment is being assigned, of the Issuing
Bank and the Swingline Lender), which consents shall not unreasonably be
withheld or delayed, and (z) the Borrower or such Eligible Assignee shall have
paid to the affected Lender or the Issuing Bank in immediately available funds
an amount equal to the sum of the principal of and interest accrued to the date
of such payment on the outstanding Loans or L/C Disbursements of such Lender or
the Issuing Bank, respectively, plus all Fees and other amounts accrued for the
account of such Lender or the Issuing Bank hereunder with respect thereto
(including any amounts under Sections 2.14 and 2.16); provided further that, if prior to any
such transfer and assignment the circumstances or event that resulted in such
Lender’s or the Issuing Bank’s claim for compensation under Section 2.14,
notice under Section 2.15 or the amounts paid pursuant to Section 2.20, as the
case may be, cease to cause such Lender or the Issuing Bank to suffer increased
costs or reductions in amounts received or receivable or reduction in return on
capital, or cease to have the consequences specified in Section 2.15, or cease
to result in amounts being payable under Section 2.20, as the case may be
(including as a result of any action taken by such Lender or the Issuing Bank
pursuant to paragraph (b) below), or if such Lender or the Issuing Bank shall
waive its right to claim further compensation under Section 2.14 in respect of
such circumstances or event or shall withdraw its notice under Section 2.15 or
shall waive its right to further payments under Section 2.20 in respect of such
circumstances or event or shall consent to the proposed amendment, waiver,
consent or other modification, as the


 


46

















 


case may be,
then such Lender or the Issuing Bank shall not thereafter be required to make
any such transfer and assignment hereunder. Each Lender hereby grants to the
Administrative Agent an irrevocable power of attorney (which power is coupled
with an interest) to execute and deliver, on behalf of such Lender as assignor,
any Assignment and Acceptance necessary to effectuate any assignment of such
Lender’s interests hereunder in the circumstances contemplated by this Section
2.21(a).


 


(b)   If (i) any Lender or the Issuing Bank shall request
compensation under Section 2.14, (ii)  any
Lender or the Issuing Bank delivers a notice described in Section 2.15 or (iii)
the Borrower is required to pay any additional amount to any Lender or the
Issuing Bank or any Governmental Authority on account of any Lender or the
Issuing Bank, pursuant to Section 2.20, then such Lender or the Issuing Bank
shall use reasonable efforts (which shall not require such Lender or the
Issuing Bank to incur an unreimbursed loss or unreimbursed cost or expense or
otherwise take any action inconsistent with its internal policies or legal or
regulatory restrictions or suffer any disadvantage or burden deemed by it to be
significant) (x) to file any certificate or document reasonably requested in
writing by the Borrower or (y) to assign its rights and delegate and transfer
its obligations hereunder to another of its offices, branches or affiliates, if
such filing or assignment would reduce its claims for compensation under
Section 2.14 or enable it to withdraw its notice pursuant to Section 2.15 or
would reduce amounts payable pursuant to Section 2.20, as the case may be, in
the future. The Borrower hereby agrees to pay all reasonable costs and expenses
incurred by any Lender or the Issuing Bank in connection with any such filing
or assignment, delegation and transfer.


 


SECTION 2.22. Swingline
Loans.  (a)  Swingline Commitment.  Subject to the terms and conditions and
relying upon the representations and warranties herein set forth, the Swingline
Lender agrees to make loans to the Borrower at any time and from time to time
on and after the Closing Date and until the earlier of the Revolving Credit
Maturity Date and the termination of the Revolving Credit Commitments, in an
aggregate principal amount at any time outstanding that will not result in (i)
the aggregate principal amount of all Swingline Loans exceeding $10,000,000 in
the aggregate or (ii) the Aggregate Revolving Credit Exposure, after giving
effect to any Swingline Loan, exceeding the Total Revolving Credit Commitment.
Each Swingline Loan shall be in an aggregate principal amount that is an
integral multiple of $100,000 and not less than $500,000. The Swingline
Commitment may be terminated or reduced from time to time as provided herein.
Within the foregoing limits, the Borrower may borrow, pay or prepay and
reborrow Swingline Loans hereunder, subject to the terms, conditions and
limitations set forth herein.


 


(b)   Swingline Loans.  The Borrower shall notify the Swingline Lender by fax, or
by telephone (promptly confirmed by fax), not later than 12:00 (noon), New York
City time, on the day of a proposed Swingline Loan. Such notice shall be
delivered on a Business Day, shall be irrevocable and shall refer to this
Agreement and shall specify the requested date (which shall be a Business Day)
and amount of such Swingline Loan and the wire transfer instructions for the
account of the Borrower to which the proceeds of the


 


47

















 


Swingline Loan should be disbursed. The Swingline Lender shall make
each Swingline Loan by wire transfer to the account specified in such request.


 


(c)   Prepayment.  The Borrower shall have the right at any
time and from time to time to prepay any Swingline Loan, in whole or in part,
upon giving written or fax notice (or telephone notice promptly confirmed by
written, or fax notice) to the Swingline Lender before 12:00 (noon), New York
City time, on the date of prepayment at the Swingline Lender’s address for
notices specified in Section 9.01.


 


(d)   Interest.  Each Swingline Loan shall be an ABR Loan and, subject to the provisions of Section 2.07, shall bear interest as provided
in Section 2.06(a).


 


(e)   Participations.  The Swingline Lender may by written
notice given to the Administrative Agent not later than 1:00 p.m., New York
City time, on any Business Day require the Revolving Credit Lenders to acquire
participations on such Business Day in all or a portion of the Swingline Loans
outstanding. Such notice shall specify the aggregate amount of Swingline Loans
in which Revolving Credit Lenders will participate. The Administrative Agent
will, promptly upon receipt of such notice, give notice to each Revolving
Credit Lender, specifying in such notice such Lender’s Pro Rata Percentage of
such Swingline Loan or Loans. In furtherance of the foregoing, each Revolving
Credit Lender hereby absolutely and unconditionally agrees, upon receipt of
notice as provided above, to pay to the Administrative Agent, for the account
of the Swingline Lender, such Revolving Credit Lender’s Pro Rata Percentage of
such Swingline Loan or Loans. Each Revolving Credit Lender acknowledges and
agrees that its obligation to acquire participations in Swingline Loans
pursuant to this paragraph is absolute and unconditional and shall not be
affected by any circumstance whatsoever, including the occurrence and continuance
of a Default or an Event of Default, and that each such payment shall be made
without any offset, abatement, withholding or reduction whatsoever. Each
Revolving Credit Lender shall comply with its obligation under this paragraph
by wire transfer of immediately available funds, in the same manner as provided
in Section 2.02(c) with respect to Loans made by such Lender (and Section
2.02(c) shall apply, mutatis mutandis, to
the payment obligations of the Lenders) and the Administrative Agent shall promptly
pay to the Swingline Lender the amounts so received by it from the Lenders. The
Administrative Agent shall notify the Borrower of any participations in any
Swingline Loan acquired pursuant to this paragraph and thereafter payments in
respect of such Swingline Loan shall be made to the Administrative Agent and
not to the Swingline Lender. Any amounts received by the Swingline Lender from
the Borrower (or other person on behalf of the Borrower) in respect of a
Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale
of participations therein shall be promptly remitted to the Administrative
Agent; any such amounts received by the Administrative Agent shall be promptly
remitted by the Administrative Agent to the Lenders that shall have made their
payments pursuant to this paragraph and to the Swingline Lender, as their
interests may appear. The purchase of participations in a Swingline Loan
pursuant to this paragraph shall not relieve the Borrower (or other person
liable for obligations of the Borrower) of any default in the payment thereof.


 


48














 


SECTION 2.23.  Letters
of Credit.  (a)
General.  The
Borrower may request the issuance of a Letter of Credit for its own account or
for the account of any of its wholly owned Subsidiaries (in which case the
Borrower and such wholly owned Subsidiary shall be co-applicants with respect
to such Letter of Credit), in a form reasonably acceptable to the
Administrative Agent and the Issuing Bank, at any time and from time to time
while the L/C Commitment remains in effect in accordance with Section 2.09(a).
This Section 2.23 shall not be construed to impose an obligation upon the
Issuing Bank to issue any Letter of Credit that is inconsistent with the terms
and conditions of this Agreement.


 


(b)   Notice of Issuance, Amendment, Renewal, Extension; Certain Conditions.  In order to
request the issuance of a Letter of Credit (or to amend, renew or extend an
existing Letter of Credit), the Borrower shall hand deliver or fax to the
Issuing Bank and the Administrative Agent (reasonably in advance of the
requested date of issuance, amendment, renewal or extension) a notice
requesting the issuance of a Letter of Credit, or identifying the Letter of
Credit to be amended, renewed or extended, the date of issuance, amendment,
renewal or extension, the date on which such Letter of Credit is to expire
(which shall comply with paragraph (c) below), the amount of such Letter of
Credit, the name and address of the beneficiary thereof and such other
information as shall be necessary to prepare such Letter of Credit. A Letter of
Credit shall be issued, amended, renewed or extended only if, and upon
issuance, amendment, renewal or extension of each Letter of Credit the Borrower
shall be deemed to represent and warrant that, after giving effect to such
issuance, amendment, renewal or extension (i) the L/C Exposure shall not exceed
$15,000,000 and (ii) the Aggregate Revolving Credit Exposure shall not exceed
the Total Revolving Credit Commitment.


 


(c)   Expiration Date.  Each
Letter of Credit shall expire at the close of business on the earlier of the
date one year after the date of the issuance of such Letter of Credit and the
date that is five Business Days prior to the Revolving Credit Maturity Date,
unless such Letter of Credit expires by its terms on an earlier date; provided, however, that a Letter of Credit
may, upon the request of the Borrower, include a provision whereby such Letter
of Credit shall be renewed automatically for additional consecutive periods of
12 months or less (but not beyond the date that is five Business Days prior to
the Revolving Credit Maturity Date) unless the Issuing Bank notifies the
beneficiary thereof at least 30 days (or such longer period as may be specified
in such Letter of Credit) prior to the then-applicable expiration date that
such Letter of Credit will not be renewed.


 


(d)   Participations.  By the issuance of a Letter of
Credit and without any further action on the part of the Issuing Bank or the
Lenders, the Issuing Bank hereby grants to each Revolving Credit Lender, and
each such Lender hereby acquires from the Issuing Bank, a participation in such
Letter of Credit equal to such Lender’s Pro Rata Percentage of the aggregate
amount available to be drawn under such Letter of Credit, effective upon the
issuance of such Letter of Credit. In consideration and in furtherance of the
foregoing, each Revolving Credit Lender hereby absolutely and unconditionally
agrees to pay to the Administrative Agent, for the account of the Issuing Bank,
such Lender’s Pro Rata Percentage of each L/C Disbursement made by the Issuing
Bank and not reimbursed by the Borrower (or, if applicable, another party
pursuant to its obligations under any


 


49

















 


other Loan Document) forthwith on the date due as
provided in Section 2.02(f). Each Revolving Credit Lender acknowledges and
agrees that its obligation to acquire participations pursuant to this paragraph
in respect of Letters of Credit is absolute and unconditional and shall not be
affected by any circumstance whatsoever, including the occurrence and
continuance of a Default or an Event of Default, and that each such payment
shall be made without any offset, abatement, withholding or reduction
whatsoever.


 


(e)   Reimbursement.  If
the Issuing Bank shall make any L/C Disbursement in respect of a Letter of
Credit, the Borrower shall pay to the Administrative Agent an amount equal to
such L/C Disbursement not later than two hours after the Borrower shall have
received notice from the Issuing Bank that payment of such draft will be made,
or, if the Borrower shall have received such notice later than 10:00 a.m, New
York City time, on any Business Day, not later than 10:00 a.m., New York City
time, on the immediately following Business Day; provided that if the conditions precedent to borrowing set
forth in Sections 4.01(b) and (c) have been satisfied, the Borrower may elect
to have such reimbursement amount treated as an ABR Revolving Loan under
Section 2.02(f).


 


(f)   Obligations Absolute.  The
Borrower’s obligations to reimburse L/C Disbursements as provided in paragraph
(e) above shall be absolute, unconditional and irrevocable, and shall be
performed strictly in accordance with the terms of this Agreement, under any
and all circumstances whatsoever, and irrespective of:


 


(i)
any lack of validity or enforceability of any Letter of Credit or any Loan
Document, or any term or provision therein;


 


(ii)
any amendment or waiver of or any consent to departure from all or any of the
provisions of any Letter of Credit or any Loan Document;


 


(iii)
the existence of any claim, setoff, defense or other right that the Borrower,
any other party guaranteeing, or otherwise obligated with, the Borrower, any
Subsidiary or other Affiliate thereof or any other person may at any time have
against the beneficiary under any Letter of Credit, the Issuing Bank, the
Administrative Agent or any Lender or any other person, whether in connection
with this Agreement, any other Loan Document or any other related or unrelated
agreement or transaction;


 


(iv)
any draft or other document presented under a Letter of Credit proving to be
forged, fraudulent, invalid or insufficient in any respect or any statement
therein being untrue or inaccurate in any respect;


 


(v)
payment by the Issuing Bank under a Letter of Credit against presentation of a
draft or other document that does not comply with the terms of such Letter of
Credit; and


 


(vi)
any other act or omission to act or delay of any kind of the Issuing Bank, the
Lenders, the Administrative Agent or any other person or any other event or
circumstance whatsoever, whether or not similar to any of the foregoing,


 


50

















 


that might, but for the
provisions of this Section, constitute a legal or equitable discharge of the
Borrower’s obligations hereunder.


 


Without limiting the
generality of the foregoing, it is expressly understood and agreed that the
absolute and unconditional obligation of the Borrower hereunder to reimburse
L/C Disbursements will not be excused by the gross negligence or wilful
misconduct of the Issuing Bank. However, the foregoing shall not be construed
to excuse the Issuing Bank from liability to the Borrower to the extent of any
direct damages (as opposed to consequential damages, claims in respect of which
are hereby waived by the Borrower to the extent permitted by applicable law)
suffered by the Borrower that are caused by the Issuing Bank’s gross negligence
or wilful misconduct in determining whether drafts and other documents
presented under a Letter of Credit comply with the terms thereof. It is further
understood and agreed that the Issuing Bank may accent documents that appear on
their face to be in order, without responsibility for further investigation,
regardless of any notice or information to the contrary and, in making any
payment under any Letter of Credit (i)  the Issuing Bank’s exclusive
reliance on the documents presented to it under such Letter of Credit as to any
and all matters set forth therein, including reliance on the amount of any
draft presented under such Letter of Credit, whether or not the amount due to
the beneficiary thereunder equals the amount of such draft and whether or not
any document presented pursuant to such Letter of Credit proves to be
insufficient in any respect, if such document on its face appears to be in
order, and whether or not any other statement or any other document presented
pursuant to such Letter of Credit proves to be forged or invalid or any
statement therein proves to be inaccurate or untrue in any respect whatsoever
and (ii) any noncompliance in any immaterial respect of the documents presented
under such Letter of Credit with the terms thereof shall, in each case, be
deemed not to constitute gross negligence or wilful misconduct of the Issuing
Bank.


 


(g)   Disbursement Procedures.  The
Issuing Bank shall, promptly following its receipt thereof, examine all
documents purporting to represent a demand for payment under a Letter of
Credit. The Issuing Bank shall as promptly as possible give telephonic
notification, confirmed by fax, to the Administrative Agent and the Borrower of
such demand for payment and whether the Issuing Bank has made or will make an
L/C Disbursement thereunder; provided that
any failure to give or delay in giving such notice shall not relieve the
Borrower of its obligation to reimburse the Issuing Bank and the Revolving
Credit Lenders with respect to any such L/C Disbursement.


 


(h)   Interim Interest.  If
the Issuing Bank shall make any L/C Disbursement in respect of a Letter of
Credit, then, unless the Borrower shall reimburse such L/C Disbursement in full
on such date, the unpaid amount thereof shall bear interest for the account of
the Issuing Bank, for each day from and including the date of such L/C
Disbursement, to but excluding the earlier of the date of payment by the
Borrower or the date on which interest shall commence to accrue thereon as
provided in Section 2.02(f), at the rate per annum that would apply to such
amount if such amount were an ABR Revolving Loan.


 


51

















 


(i)   Resignation or Removal of the
Issuing Bank.  The Issuing Bank may resign at any
time by giving 30 days’ prior written notice to the Administrative Agent, the
Lenders and the Borrower, and may be removed at any time by the Borrower by
notice to the Issuing Bank, the Administrative Agent and the Lenders. Upon the
acceptance of any appointment as the Issuing Bank hereunder by a Lender that
shall agree to serve as successor Issuing Bank, such successor shall succeed to
and become vested with all the interests, rights and obligations of the
retiring Issuing Bank. At the time such removal or resignation shall become
effective, the Borrower shall pay all accrued and unpaid fees pursuant to
Section 2.05(c)(ii). The acceptance of any appointment as the Issuing Bank
hereunder by a successor Lender shall be evidenced by an agreement entered into
by such successor, in a form satisfactory to the Borrower and the
Administrative Agent, and, from and after the effective date of such agreement
(i)  such successor Lender shall
have all the rights and obligations of the previous Issuing Bank under this
Agreement and the other Loan Documents and (ii) references herein and in the
other Loan Documents to the term “Issuing Bank” shall be deemed to refer to
such successor or to any previous Issuing Bank, or to such successor and all
previous Issuing Banks, as the context shall require. After the resignation or
removal of the Issuing Bank hereunder, the retiring Issuing Bank, shall remain
a party hereto and shall continue to have all the rights and obligations of an
Issuing Bank under this Agreement and the other Loan Documents with respect to
Letters of Credit issued by it prior to such resignation or removal, but shall
not be required to issue additional Letters of Credit.


 


(j)   Cash Collateralization.  If
any Event of Default shall occur and be continuing, the Borrower shall, on the
Business Day it receives notice from the Administrative Agent or the Required
Lenders (or, if the maturity of the Loans has been accelerated, Revolving
Credit Lenders holding participations in outstanding Letters of Credit
representing greater than 50% of the aggregate undrawn amount of all
outstanding Letters of Credit) thereof and of the amount to be deposited,
deposit in an interest-bearing account (which shall bear interest at the
Federal Funds Effective Rate) with the Collateral Agent, for the benefit of the
Revolving Credit Lenders, an amount in cash equal to the L/C Exposure as of
such date. Such deposit shall be held by the Collateral Agent as collateral for
the payment and performance of the Obligations. The Collateral Agent shall have
exclusive dominion and control, including the exclusive right of withdrawal,
over such account. Interest or profits, if any, on such investments shall
accumulate in such account. Moneys in such account shall (i) automatically be
applied by the Administrative Agent to reimburse the Issuing Bank for L/C
Disbursements for which it has not been reimbursed (ii) be held for the
satisfaction of the reimbursement obligations of the Borrower for the L/C
Exposure at such time and (iii) if the maturity of the Loans has been
accelerated (but subject to the consent of Revolving Credit Lenders holding
participations in outstanding Letters of Credit representing greater than 50%
of the aggregate undrawn amount of all outstanding Letters of Credit), be
applied to satisfy the Obligations. If the Borrower is required to provide an
amount of cash collateral hereunder as a result of the occurrence of an Event
of Default, such amount (to the extent not applied as aforesaid) shall be
returned to the Borrower within three Business Days after all Events of Default
have been cured or waived.


 


52

















 


(k)   Additional Issuing Banks.  The
Borrower may, at any time and from time to time with the consent of the
Administrative Agent (which consent shall not be unreasonably withheld or
delayed) and such Lender, designate one or more additional Lenders to act as an
issuing bank under the terms of this Agreement. Any Lender designated as an
issuing bank pursuant to this paragraph (k) shall be deemed to be an “Issuing
Bank” (in addition to being a Lender) in respect of Letters of Credit issued or
to be issued by such Lender, and, with respect to such Letters of Credit, such
term shall thereafter apply to the other Issuing Bank and such Lender.


 


SECTION 2.24.  Incremental
Term Loans.  (a) The Borrower may, by written
notice to the Administrative Agent from time to time, request Incremental Term
Loan Commitments in an aggregate amount not to exceed the Incremental Term Loan
Amount from one or more Incremental Term Lenders, which may include any
existing Lender; provided that
each Incremental Term Lender, if not already a Lender hereunder, shall be
subject to the prior approval of the Administrative Agent (which approval shall
not be unreasonably withheld or delayed). Such notice shall set forth (i) the
amount of the Incremental Term Loan Commitments being requested (which shall be
in minimum increments of $1,000,000 and a minimum amount of $5,000,000 or such
lesser amount equal to the remaining Incremental Term Loan Amount), (ii) the
date on which such Incremental Term Loan Commitments are requested to become
effective (which shall not be less than 10 Business Days nor more than 60 days
after the date of such notice), and (iii) whether such Incremental Term Loan
Commitments are commitments to make additional Term Loans or commitments to
make term loans with terms different from the Term Loans (“Other Term Loans”).


 


(b)   The
Borrower and each Incremental Term Lender shall execute and deliver to the
Administrative Agent an Incremental Term Loan Assumption Agreement and such
other documentation as the Administrative Agent shall reasonably specify to
evidence the Incremental Term Loan Commitment of each Incremental Term Lender.
Each Incremental Term Loan Assumption Agreement shall specify the terms of the
Incremental Term Loans to be made thereunder; provided
that, without the prior written consent of the Required Lenders, (i)
the final maturity date of any Other Term Loans shall be no earlier than the
Term Loan Maturity Date, (ii) the average life to maturity of the Other Term
Loans shall be no shorter than the average life to maturity of the Term Loans
and (iii) if the initial yield on such Other Term Loans (as determined by the
Administrative Agent to be equal to the sum of (x) the margin above the
Adjusted LIBO Rate on such Other Term Loans and (y) if such Other Term Loans
are initially made at a discount or the Lenders making the same receive a fee
directly or indirectly from Holdings, the Borrower or any Subsidiary for doing
so (the amount of such discount or fee, expressed as a percentage of the Other
Term Loans, being referred to herein as “OID”),
the amount of such OID divided by the lesser of (A) the average life to
maturity of such Other Term Loans and (B) four) exceeds by more than 50 basis
points (the amount of such excess above 50 basis points being referred to
herein as the “Yield Differential”)  the Applicable
Percentage then in effect for Eurodollar Term Loans, then the Applicable
Percentage then in effect for Term Loans shall automatically be increased by
the Yield Differential, effective upon the making of the Other Term Loans. The
Administrative Agent shall promptly notify each Lender as to the effectiveness
of each


 


53

















 


Incremental Term Loan Assumption Agreement. Each of
the parties hereto hereby agrees that, upon the effectiveness of any
Incremental Term Loan Assumption, Agreement this Agreement shall be deemed
amended to the extent (but only to the extent) necessary to reflect the
existence and terms of the Incremental Term Loan Commitments and the
Incremental Term Loans evidenced thereby.


 


(c)   Notwithstanding
the foregoing, no Incremental Term Loan Commitment shall become effective under
this Section 2.24 unless (i)  on
the date of such effectiveness, the conditions set forth in paragraphs (b), (c)  and (d) of Section 4.01 shall be satisfied
(treating the effectiveness of the Incremental Commitment as a “Credit Event”
for such purposes) and the Administrative Agent shall have received a
certificate to that effect dated such date and executed by a Financial Officer
of the Borrower, and (ii) except as otherwise specified in the applicable
Incremental Term Loan Assumption Agreement, the Administrative Agent shall have
received (with sufficient copies for each of the Incremental Term Lenders)
legal opinions, board resolutions and other closing certificates reasonably
requested by the Administrative Agent and consistent with those delivered on the
Closing Date under Section 4.02.


 


(d)   Each
of the parties hereto hereby agrees that the Administrative Agent may, in
consultation with the Borrower, take any and all action as may be reasonably
necessary to ensure that all Incremental Term Loans (other than Other Term
Loans), when originally made, are included in each Borrowing of outstanding
Term Loans on a pro rata basis. This may be accomplished by requiring each
outstanding Eurodollar Term Borrowing to be converted into an ABR Term
Borrowing on the date of each Incremental Term Loan, or by allocating a portion
of each Incremental Term Loan to each outstanding Eurodollar Term Borrowing on
a pro rata basis. Any conversion of Eurodollar Term Loans to ABR Term Loans
required by the preceding sentence shall be subject to Section 2.16. If
any Incremental Term Loan is to be allocated to an existing Interest Period for
a Eurodollar Term Borrowing, then the interest rate thereon for such Interest
Period and the other economic consequences thereof shall be as set forth in the
applicable Incremental Term Loan Assumption Agreement. In addition, to the
extent any Incremental Term Loans are not Other Term Loans, the scheduled
amortization payments under Section 2.11(a)(i) required to be made after the
making of such Incremental Term Loans shall be ratably increased by the
aggregate principal amount of such Incremental Term Loans.


 


SECTION
2.25.  Increase in Revolving Commitments.  (a)
The Borrower may, by written notice to the Administrative Agent from time to
time, request that the total Revolving Commitment be increased by an aggregate
amount not to exceed the Incremental Revolving Facility Amount at such time.
Upon the receipt of such request by the Administrative Agent, the
Administrative Agent shall deliver a copy thereof to each Revolving Lender.
Such notice shall set forth the amount of the requested increase (which shall
be in minimum increments of $500,000 and a minimum amount of $2,500,000 or
equal to the remaining Incremental Revolving Facility Amount) and the date on
which such increase is requested to become effective (which shall be not less
than 10 Business Days nor more than 60 days after the date of such notice and
which, in any event, must be prior to the Revolving Credit Maturity Date), and
shall offer each


 


54

















 


Revolving Lender the opportunity to increase its
Revolving Commitment by its Pro Rata Percentage of the proposed increased
amount. Each Revolving Lender shall, by notice to the Borrower and the
Administrative Agent given not more than 10 days after the date of the
Administrative Agent’s notice, either agree to increase its Revolving Commitment
by all or a portion of the offered amount (each Revolving Lender so agreeing
being an “Increasing Revolving Lender”)  or
decline to increase its Revolving Commitment (and any Revolving Lender that
does not deliver such a notice within such period of 10 days shall be deemed to
have declined to increase its Revolving Commitment) (each Revolving Lender so
declining or being deemed to have declined being a Non-Increasing Revolving Lender”). In the event
that, on the 10th day after the Administrative Agent shall have delivered a
notice pursuant to the second sentence of this paragraph, the Increasing
Revolving Lenders shall have agreed pursuant to the preceding sentence to
increase their Revolving Commitments by an aggregate amount less than the
increase requested by the Borrower, such Borrower may arrange for one or more
banks or other entities (any such bank or other entity being called an “Augmenting Revolving Lender”),  which may
include any Lender, to extend Revolving Commitments or increase their existing
Revolving Commitments in an aggregate amount equal to the unsubscribed amount;
provided, however, that each Augmenting Revolving Lender shall be subject to
the prior written approval of the Administrative Agent, the Swingline Lender
and the Issuing Bank (which approvals shall not be unreasonably withheld or
delayed), and the Borrower and each Augmenting Revolving Lender shall execute
all such documentation as the Administrative Agent shall reasonably specify to
evidence its Revolving Commitment and/or its status as a Revolving Lender
hereunder, Any such increase may be made in an amount that is less than the
increase requested by the Borrower if such Borrower is unable to arrange for,
or chooses not to arrange for, Augmenting Revolving Lenders.


 


(b)   Each
of the parties hereto hereby agrees that the Administrative Agent may, in
consultation with the Borrower, take any and all action as may be reasonably
necessary to ensure that after giving effect to any increase pursuant to this
Section 2.25, the outstanding Revolving Loans (if any) are held by the
Revolving Lenders in accordance with their new Pro Rata Percentages. This may
be accomplished at the discretion of the Administrative Agent, following
consultation with the Borrower, (i) by requiring the outstanding Revolving
Loans to be prepaid with the proceeds of a new Revolving Borrowing, (ii) by
causing Non-Increasing Revolving Lenders to assign portions of their
outstanding Revolving Loans to Increasing Revolving Lenders and/or Augmenting
Revolving Lenders, or (iii) by any combination of the foregoing. Any prepayment
or assignment described in this paragraph (b) shall be subject to Section 2.16,
but shall otherwise be without premium or penalty.


 


(c)   Notwithstanding
the foregoing, no increase in the Revolving Commitments shall become effective
under this Section 2.25 unless (i) on the date of such effectiveness, the
conditions set forth in paragraphs (b), (c) and (d)  of Section
4.01 shall be satisfied (treating the effectiveness of the increase in the
Revolving Commitments as a “Credit Event” for such purposes) and the
Administrative Agent shall have received a certificate to that effect dated
such date and executed by a Financial Officer of the Borrower, and (ii) if
requested, the Administrative Agent shall have received legal opinions, board


 


55

















 


resolutions and other
closing certificates reasonably requested by the Administrative Agent and
consistent with those delivered on the Closing Date under Section 4.02.


 


ARTICLE III


 


Representations
and Warranties


 


Each
of Holdings and the Borrower represents and warrants to the Administrative
Agent, the Collateral Agent, the Issuing Bank and each of the Lenders that:


 


SECTION 3.01.  Organization;
Powers.  Holdings, the Borrower and each of
the Subsidiaries (a) is duly organized, validly existing and in good standing
under the laws of the jurisdiction of its organization, (b) has all requisite
power and authority to own its property and assets and to carry on its business
as now conducted and as proposed to be conducted, (c) is qualified to do
business in, and, to the extent such concept is applicable in such
jurisdiction, is in good standing in, every jurisdiction where such
qualification is required, except where the failure so to qualify could not
reasonably be expected to result in a Material Adverse Effect, and (d) has the
power and authority to execute, deliver and perform its obligations under each
of the Loan Documents and each other agreement or instrument contemplated
thereby to which it is or will be a party and, in the case of the Borrower, to
borrow hereunder.


 


SECTION 3.02.  Authorization.  The
Transactions (a)  have been duly authorized by all
requisite corporate and, if required, stockholder action and (b) will not (i)
violate (A) any provision of law, statute, rule or regulation in a manner that
could reasonably be expected to result in a Material Adverse Effect, or of the
certificate or articles of incorporation or other constitutive documents or
by-laws of Holdings, the Borrower or any Subsidiary, (B) any order of any
Governmental Authority in a manner that could reasonably be expected to result
in a Material Adverse Effect, or (C) any provision of any indenture, agreement
or other instrument to which Holdings, the Borrower or any Subsidiary is a
party or by which any of them or any of their property is or may be bound in a
manner that could reasonably be expected to result in a Material Adverse Effect,
(ii) be in conflict with, result in a breach of or constitute (alone or with
notice or lapse of time or both) a default under, or give rise to any right to
accelerate or to require the prepayment, repurchase or redemption of any
obligation under any such indenture, agreement or other instrument in a manner
that could reasonably be expected to result in a Material Adverse Effect, or
(iii) result in the creation or imposition of any Lien upon or with respect to
any property or assets now owned or hereafter acquired by Holdings, the
Borrower or any Subsidiary (other than any Lien created hereunder or under the
Security Documents or any Second Priority Lien).


 


SECTION 3.03.  Enforceability.
 This Agreement has been duly
executed and delivered by Holdings and the Borrower and constitutes, and each
other Loan Document when executed and delivered by each Loan Party party
thereto will constitute, a legal, valid and binding obligation of such Loan
Party enforceable against such Loan Party in accordance with its terms.


 


56

















 


SECTION 3.04.  Governmental
Approvals.  No action, consent or approval of,
registration or filing with or any other action by any Governmental Authority
is or will be required in connection with the Transactions, except for (a) the
filing of Uniform Commercial Code financing statements and filings with the
United States Patent and Trademark Office and the United States Copyright
Office, (b) recordation of the Mortgages, (c) such as have been made or
obtained and are in full force and effect and (d) those that, if not obtained
or made, could not reasonably be expected, individually or in the aggregate, to
have a Material Adverse Effect.


 


SECTION 3.05.  Financial
Statements.  (a)  The Borrower
has heretofore furnished to the Lenders its consolidated balance sheets and
related statements of income, stockholder’s equity and cash flows; (i)  as of and for the fiscal years ended
December 31, 2004, 2005 and 2006, audited by and accompanied by the opinion of
UHY LLP, independent public accountants, (ii) as of and for the fiscal quarter
and the portion of the fiscal year ended March 31, 2007, certified by a
Financial Officer, and (iii) as of and for each fiscal month ended after March
31, 2007 and at least 30 days before the Closing Date, certified by a Financial
Officer. Such financial statements present fairly the financial condition and
results of operations and cash flows of the Borrower and its consolidated
Subsidiaries as of such dates and for such periods. Such balance sheets and the
notes thereto disclose all material liabilities, direct or contingent, of the
Borrower and its consolidated Subsidiaries as of the dates thereof. Such
financial statements were prepared in accordance with GAAP applied on a
consistent basis, subject, in the case of unaudited financial statements, to
year-end audit adjustments, the absence of footnotes and an exception for the
calculation of taxes and tax accruals.


 


(b)   The
Borrower has heretofore delivered to the Lenders its unaudited pro forma
consolidated balance sheet and related pro forma statements of income, as of
March 31, 2007, prepared giving effect to the Transactions as if they had
occurred, with respect to such balance sheet, on such date and, with respect to
such other financial statements, on the first day of the 12-month period ending
on such date. Such pro forma financial statements have been prepared in good
faith by the Borrower, based on the assumptions used to prepare the pro forma
financial information contained in the Confidential Information Memorandum
(which assumptions are believed by the Borrower on the date hereof and on the
Closing Date to be reasonable), are based on the best information available to
the Borrower as of the date of delivery thereof, accurately reflect all
adjustments required to be made to give effect to the Transactions and present
fairly on a pro forma basis the estimated consolidated financial position of
the Borrower and its consolidated Subsidiaries as of such date and for such
period, assuming that the Transactions had actually occurred at such date or at
the beginning of such period, as the case may be.


 


SECTION 3.06.  No
Material Adverse Change.  No event, change or condition has
occurred that has had, or could reasonably be expected to have a material
adverse effect on the business, assets, liabilities, operations, financial
condition or operating results of Holdings, the Borrower and the Subsidiaries,
taken as a whole, since December 31, 2006.


 


57

















 


SECTION 3.07.  Title to
Properties; Possession Under Leases.  (a)  Each
of Holdings the Borrower and the Subsidiaries has good and marketable title to,
or valid leasehold interests in, all its material properties and assets
(including all Mortgaged Property), except for minor defects in title that do
not interfere in any material respect with its ability to conduct its business
as currently conducted or to utilize such properties and assets for their
intended purposes. All such material properties and assets are free and clear
of Liens, other than Liens expressly permitted by Section 6.02.


 


(b)   Except
to the extent that failure to do so could not reasonably be expected to result
in a Material Adverse Effect, (i)  each
of Holdings, the Borrower and the Subsidiaries has complied with all
obligations under all leases to which it is a party and all such leases are in
full force and effect and (ii) each of Holdings, the Borrower and the
Subsidiaries enjoys peaceful and undisturbed possession under all such leases.


 


(c)   As
of the Closing Date, neither Holdings nor the Borrower has received any notice
of, nor has any knowledge of, any pending or contemplated condemnation
proceeding affecting the Mortgaged Properties or any sale or disposition
thereof in lieu of condemnation.


 


(d)   As
of the Closing Date, none of Holdings, the Borrower or any of the Subsidiaries
is obligated under any right of first refusal, option or other contractual
right to sell, assign or otherwise dispose of any Mortgaged Property or any
interest therein.


 


SECTION
3.08.  Subsidiaries.  Schedule 3.08 sets
forth as of the Closing Date a list of all Subsidiaries and the percentage
ownership interest of Holdings or the Borrower therein. The shares of capital
stock or other ownership interests so indicated on Schedule 3.08 are fully paid
and non-assessable and are owned by Holdings or the Borrower, directly or
indirectly, free and clear of all Liens (other than Liens created under the
Security Documents or any Second Priority Lien).


 


SECTION 3.09.  Litigation;
Compliance with Laws.  (a) Except as set forth on Schedule
3.09, there are no actions, suits or proceedings at law or in equity or by or
before any Governmental Authority now pending or, to the knowledge of Holdings
or the Borrower, threatened against or affecting Holdings or the Borrower or any
Subsidiary or any business, property or rights of any such person (i) that
involve any Loan Document or the Transactions or (ii) as to which there is a
reasonable possibility of an adverse determination and that, if adversely
determined, could reasonably be expected, individually or in the aggregate, to
result in a Material Adverse Effect.


 


(b)   Since
the date of this Agreement, there has been no change in the status of the
matters disclosed on Schedule 3.09 that, individually or in the aggregate, has resulted
in, or materially increased the likelihood of, a Material Adverse Effect.


 


(c)   None
of Holdings, the Borrower or any of the Subsidiaries or any of their respective
material properties or assets is in violation of, nor will the continued
operation of their material properties and assets as currently conducted
violate, any law, rule or regulation (including any zoning, building,
Environmental Law, ordinance, code or


 


58

















 


approval or any building permits) or any restrictions
of record or agreements affecting the Mortgaged Property, or is in default with
respect to any judgment, writ, injunction, decree or order of any Governmental
Authority, where such violation or default could reasonably be expected to
result in a Material Adverse Effect.


 


(d)   Certificates
of occupancy and permits are in effect for each Mortgaged Property as currently
constructed, and true and complete copies of such certificates of occupancy
have been delivered to the Collateral Agent as mortgagee with respect to each
Mortgaged Property.


 


SECTION 3.10.  Agreements.
 (a) None of Holdings, the Borrower
or any of the Subsidiaries is a party to any agreement or instrument or subject
to any corporate restriction that has resulted or could reasonably be expected
to result in a Material Adverse Effect.


 


(b)     None of Holdings, the Borrower or any of
the Subsidiaries is in default in any manner under any provision of any
indenture or other agreement or instrument evidencing Indebtedness, or any
other material agreement or instrument to which it is a party or by which it or
any of its properties or assets are or may be bound, where such default could
reasonably be expected to result in a Material Adverse Effect.


 


SECTION 3.11.  Federal
Reserve Regulations.  (a)  None of
Holdings, the Borrower or any of the Subsidiaries is engaged principally, or as
one of its important activities, in the business of extending credit for the
purpose of buying or carrying Margin Stock.


 


(b)   No
part of the proceeds of any Loan or any Letter of Credit will be used, whether
directly or indirectly, and whether immediately, incidentally or ultimately,
for any purpose that entails a violation of, or that is inconsistent with, the
provisions of the Regulations of the Board, including Regulation T, U or X.


 


SECTION
3.12.  Investment Company Act.  None
of Holdings, the Borrower or any Subsidiary is an “investment company” as
defined in, or subject to regulation under, the Investment Company Act of 1940.


 


SECTION
3.13.  Use of Proceeds.  The Borrower will
(a) use the proceeds of the Loans (other than any Incremental Term Loans) and
will request the issuance of Letters of Credit only for the purposes specified
in the introductory statement to this Agreement and (b) use the proceeds of
Incremental Term Loans only for the purposes specified in the applicable
Incremental Term Loan Assumption Agreement.


 


SECTION 3.14.  Tax
Returns.  Each of Holdings, the Borrower and
the Subsidiaries has filed or caused to be filed all Federal, and all material
state, local and foreign tax returns or materials required to have been filed
by it and has paid or caused to be paid all material taxes due and payable by
it and all assessments received by it, except taxes that are being contested in
good faith by appropriate proceedings and for which Holdings, the Borrower or
such Subsidiary, as applicable, shall have set aside on its books adequate
reserves.


 


59














 


SECTION 3.15.
No Material Misstatements.  None of (a) the Confidential
Information Memorandum or (b) any other information, report, financial
statement, exhibit or schedule furnished by or on behalf of Holdings or the
Borrower to the Administrative Agent or any Lender in connection with the
negotiation of any Loan Document or included therein or delivered pursuant
thereto contained, contains or will contain any material misstatement of fact
or omitted, omits or will omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were,
are or will be made, not misleading; provided
that to the extent any such information, report, financial
statement, exhibit or schedule was based upon or constitutes a forecast or
projection, each of Holdings and the Borrower represents only that it acted in
good faith and utilized reasonable assumptions (based upon accounting
principles consistent with the historical audited financial statements of the
Borrower) and due care in the preparation of such information, report,
financial statement, exhibit or schedule.


 


SECTION 3.16.
Employee Benefit Plans.  (a) Each of the Borrower and its
ERISA Affiliates is in compliance with the applicable provisions of ERISA and
the Code and the regulations and published interpretations thereunder, except
as could not reasonably be expected to have a Material Adverse Effect. No ERISA
Event has occurred or is reasonably expected to occur that, alone or when taken
together with all other such ERISA Events, could reasonably be expected to
result in a Material Adverse Effect. The fair market value of all the assets
under each Plan (based on the assumptions used for purposes of Statement of
Financial Accounting Standards No. 87) was not, as of the last annual
valuation date applicable thereto, less than 80% of the present value of all
benefit liabilities under such Plan, and the fair market value of all assets of
all underfunded Plans (based on the assumptions used for purposes of Statement
of Financial Accounting Standards No. 87) was not, as of the last annual
valuation dates applicable thereto, less than 80% of the present value of all
benefit liabilities of such underfunded Plans.


 


(b)   Each Foreign Pension Plan is in
compliance in all material respects with all requirements of law applicable
thereto and the respective requirements of the governing documents for such
plan, except as, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect. With respect to each Foreign
Pension Plan, none of Holdings, its Affiliates or any of their respective
directors, officers, employees or agents has engaged in a transaction that
could subject Holdings, the Borrower or any Subsidiary, directly or indirectly,
to a tax or civil penalty that could reasonably be expected, individually or in
the aggregate, to result in a Material Adverse Effect. With respect to each
Foreign Pension Plan, reserves have been established in the financial
statements furnished to Lenders in respect of any unfunded liabilities in
accordance with applicable law and prudent business practice or, where
required, in accordance with ordinary accounting practices in the jurisdiction
in which such Foreign Pension Plan is maintained, except as could not
reasonably be expected to have a Material Adverse Effect. The aggregate
unfunded liabilities with respect to such Foreign Pension Plans could not
reasonably be expected to result in a Material Adverse Effect; the fair market
value of the assets of all such Foreign Pension Plans (based on those
assumptions used to fund each such Foreign Pension Plan) was not, as of the
last annual


 


60

















 


valuation
date applicable thereto, less than 80% of the present value of all the
aggregate accumulated benefit liabilities of such Foreign Pension Plans.


 


SECTION 3.17. Environmental Matters.  (a) Except as set forth in Schedule
3.17 and except with respect to any other matters that, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect, none of Holdings, the Borrower or any of the Subsidiaries (i) has
failed to comply with any Environmental Law or to obtain, maintain or comply
with any permit, license or other approval required under any Environmental
Law, (ii) has become subject to any Environmental Liability, (iii) has
received notice of any claim with respect to any Environmental Liability or (iv) knows
of any basis for any Environmental Liability.


 


(b)   Since the date of this Agreement,
there has been no change in the status of any matters disclosed on Schedule
3.17 or any new matters that, individually or in the aggregate, have resulted
in, or materially increased the likelihood of, a Material Adverse Effect.


 


SECTION 3.18.
Insurance.  Schedule 3.18 sets forth a true, complete
and correct description of all insurance maintained by the Borrower or by the
Borrower for its Subsidiaries as of the date hereof and the Closing Date. As of
each such date, such insurance is in full force and effect and all premiums
have been duly paid. The Borrower and its Subsidiaries have insurance in such
amounts and covering such risks and liabilities as are in accordance with
normal industry practice for each applicable jurisdiction.


 


SECTION 3.19. Security Documents. (a) The Guarantee
and Collateral Agreement, upon execution and delivery thereof by the parties
thereto, will create in favor of the Collateral Agent, for the ratable benefit
of the Secured Parties, a legal, valid and enforceable security interest in the
Collateral (as defined in the Guarantee and Collateral Agreement) and the
proceeds thereof and (i) when the Pledged Collateral (as defined in the
Guarantee and Collateral Agreement) is delivered to the Collateral Agent, the
Lien created under Guarantee and Collateral Agreement shall constitute a fully
perfected first priority Lien on, and security interest in, all right, title
and interest of the Loan Parties in such Pledged Collateral, in each case prior
and superior in right to any other person, and (ii) when financing
statements in appropriate form are filed in the offices specified on Schedule
3.19(a), the Lien created under the Guarantee and Collateral Agreement will
constitute a fully perfected Lien on, and security interest in, all right,
title and interest of the Loan Parties in such Collateral (other than
Intellectual Property, as defined in the Guarantee and Collateral Agreement),
in each case prior and superior in right to any other person, other than with
respect to Liens expressly permitted by Section 6.02.


 


(b)   Upon the recordation of the
Guarantee and Collateral Agreement (or a short-form security agreement in form
and substance reasonably satisfactory to the Borrower and the Collateral Agent)
with the United States Patent and Trademark Office and the United States
Copyright Office, together with the financing statements in appropriate form
filed in the offices specified on Schedule 3.19(a), Lien created under the
Guarantee


 


61

















 


and Collateral Agreement
shall constitute a fully perfected Lien on, and security interest in, all
right, title and interest of the Loan Parties in the Intellectual Property (as
defined in the Guarantee and Collateral Agreement) in which a security interest
may be perfected by filing in the United States and its territories and
possessions, in each case prior and superior in right to any other person (it
being understood that subsequent recordings in the United States Patent and
Trademark Office and the United States Copyright Office may be necessary to
perfect a Lien on registered trademarks and patents, trademark and patent
applications and registered copyrights acquired by the Loan Parties after the
date hereof).


 


(c)   The
Mortgages are effective to create in favor of the Collateral Agent, for the
ratable benefit of the Secured Parties, a legal, valid and enforceable Lien on
all of the Loan Parties’ right, title and interest in and to the Mortgaged
Property thereunder and the proceeds thereof, and when the Mortgages are filed
in the offices specified on Schedule 3.19(c), the Mortgages shall constitute a
fully perfected Lien on, and security interest in, all right, title and
interest of the Loan Parties in such Mortgaged Property and the proceeds thereof,
in each case prior and superior in right to any other person, other than with
respect to the rights of persons pursuant to Liens expressly permitted by Section 6.02.


 


SECTION 3.20.
Location of Real Property and
Leased Premises. (a) Schedule 3.20(a) lists completely
and correctly as of the Closing Date all real property owned by the Borrower
and the Subsidiaries and the addresses thereof. The Borrower and the
Subsidiaries own in fee all the real property set forth on Schedule 3.20(a).


 


(b)   Schedule
3.20(b) lists completely and correctly as of the Closing Date all real
property leased by the Borrower and the Subsidiaries and the addresses thereof.
The Borrower and the Subsidiaries have valid leases in all the real property
set forth on Schedule 3.20(b).


 


SECTION 3.21.
Labor Matters.  As of the date hereof and the Closing
Date, there are no strikes, lockouts or slowdowns against Holdings, the
Borrower or any Subsidiary pending or, to the knowledge of Holdings or the
Borrower, threatened that, individually or in the aggregate, could reasonably
be expected to result in a Material Adverse Effect. Except to the extent that
the same could not reasonably be expected to result in a Material Adverse
Effect, the hours worked by and payments made to employees of Holdings, the
Borrower and the Subsidiaries have not been in violation of the Fair Labor
Standards Act or any other applicable Federal, state, local or foreign law
dealing with such matters.


 


SECTION 3.22. Solvency.  Immediately
after the consummation of the Transactions to occur on the Closing Date and
immediately following the making of each Loan and after giving effect to the
application of the proceeds of each Loan, (a) the fair value of the assets
of the Loan Parties, taken as a whole, at a fair valuation, will exceed their
debts and liabilities, subordinated, contingent or otherwise; (b) the
present fair saleable value of the property of the Loan Parties, taken as a
whole, will be greater than


 


62

















 


the amount that will be
required to pay the probable liability of their debts and other liabilities,
subordinated, contingent or otherwise, as such debts and other liabilities
become absolute and matured; (c) the Loan Parties, taken as a whole, will
be able to pay their debts and liabilities, subordinated, contingent or
otherwise, as such debts and liabilities become absolute and matured; and (d) the
Loan Parties, taken as a whole, will not have unreasonably small capital with
which to conduct the business in which they are engaged as such business is now
conducted and is proposed to be conducted following the Closing Date.


 


SECTION 3.23.
Transaction Documents.  Holdings and the Borrower have delivered
to the Administrative Agent a complete and correct copy of the Merger Agreement
(including all schedules, exhibits, amendments, supplements and modifications
thereto). Neither Holdings, the Borrower nor any Loan Party or, to the
knowledge of Holdings or the Borrower, any other person party thereto is in
default in the performance or compliance with any material provisions thereof.


 


SECTION 3.24.
Sanctioned Persons. None
of Holdings, the Borrower or any Subsidiary nor, to the knowledge of the
Borrower, any director, officer, agent, employee or Affiliate of Holdings, the Borrower
or any Subsidiary is currently subject to any U.S. sanctions administered by
the Office of Foreign Assets Control of the U.S. Treasury Department (“OFAC”);  and
the Borrower will not directly or indirectly use the proceeds of the Loans or
the Letters of Credit or otherwise make available such proceeds to any person,
for the purpose of financing the activities of any person currently subject to
any U.S. sanctions administered by OFAC.


 


ARTICLE IV


 


Conditions of Lending


 


The obligations of the Lenders to make Loans and of
the Issuing Bank to issue Letters of Credit hereunder are subject to the
satisfaction of the following conditions:


 


SECTION 4.01. All Credit Events.  On the date of each Borrowing (other than a conversion or a
continuation of a Borrowing), including each Borrowing of a Swingline Loan and
on the date of each issuance, amendment, extension or renewal of a Letter of
Credit (each such event being called a “Credit Event”):


 


(a)   The Administrative Agent shall
have received a notice of such Borrowing as required by Section 2.03 (or
such notice shall have been deemed given in accordance with Section 2.02)
or, in the case of the issuance, amendment, extension or renewal of a Letter of
Credit, the Issuing Bank and the Administrative Agent shall have received a
notice requesting the issuance, amendment, extension or renewal of such Letter
of Credit as required by Section 2.23(b) or, in the case of the
Borrowing of a Swingline Loan, the Swingline Lender and the Administrative
Agent shall have received a notice requesting such Swingline Loan as required
by Section 2.22(b).


 


63

















 


(b)   Except with respect to the Credit
Event to occur on the Closing Date, the representations and warranties set
forth in Article III and in each other Loan Document shall be true and
correct in all material respects on and as of the date of such Credit Event
with the same effect as though made on and as of such date, except to the
extent such representations and warranties expressly relate to an earlier date.


 


(c)   At the time of and immediately
after such Credit Event, no Default or Event of Default shall have occurred and
be continuing.


 


(d)   Except with respect to the Credit
Event to occur on the Closing Date, the Administrative Agent shall have
received a certificate of a Financial Officer of the Borrower to the effect
that, on the date of such Credit Event and after giving pro forma effect
thereto and to the use of the proceeds thereof, the Borrower would be in pro
forma compliance with the covenants set forth in Sections 6.11, 6.12 and 6.13.


 


Each
Credit Event shall be deemed to constitute a representation and warranty by the
Borrower and Holdings on the date of such Credit Event as to the matters
specified in paragraphs (b), (c) and (d) of this Section 4.01
(or, with respect to the Credit Event to occur on the Closing Date, as to the
matters specified in Section 4.02(n)).


 


SECTION 4.02.
First Credit Event.  On the Closing Date:


 


(a)   The Administrative Agent shall
have received, on behalf of itself, the Lenders and the Issuing Bank, a written
opinion of (i) Weil, Gotshal & Manges LLP, counsel for Holdings
and the Borrower, substantially to the effect set forth in Exhibit F-1 and
(ii) Murtha Cullina LLP, substantially to the effect set forth in Exhibit F-2,
in each case (A) dated the Closing Date, (B) addressed to the Issuing
Bank, the Administrative Agent and the Lenders, and (C) covering such
other matters relating to the Loan Documents and the Transactions as the
Administrative Agent shall reasonably request, and Holdings and the Borrower
hereby request such counsel to deliver such opinions.


 


(b)   The Administrative Agent shall
have received (i) a copy of the certificate or articles of incorporation
(or other similar formation document), including all amendments thereto, of
each Loan Party, certified as of a recent date by the Secretary of State (or
equivalent) of the state of its organization, and a certificate of legal
existence and, if available in such jurisdiction, a certificate as to the good
standing of each Loan Party as of a recent date, from such Secretary of State; (ii) a
certificate of the Secretary or Assistant Secretary of each Loan Party dated
the Closing Date and certifying (A) that attached thereto is a true and
complete copy of the by-laws (or equivalent) of such Loan Party as in effect on
the Closing Date and at all times since a date prior to the date of the
resolutions described in clause (B) below, (B) that attached thereto
is a true and complete copy of resolutions (or equivalent) duly adopted by the
Board of Directors of such Loan Party authorizing the execution, delivery and
performance of the Loan Documents to which such person is a party and, in the
case of the Borrower, the borrowings hereunder, and that such resolutions have
not been modified, rescinded or amended and are in full force and effect, (C) that
the certificate or articles of incorporation of such Loan Party have not been
amended since the date of the last amendment thereto shown on the


 


64

















 


certificate of
legal existence or good standing (or equivalent) or state certified copies of
such documents furnished pursuant to clause (i) above, and (D) as to
the incumbency and specimen signature of each officer executing any Loan
Document or any other document delivered in connection herewith on behalf of
such Loan Party; and (iii) a certificate of another officer as to the
incumbency and specimen signature of the Secretary or Assistant Secretary executing
the certificate pursuant to clause (ii) above.


 


(c)   The
Administrative Agent shall have received a certificate, dated the Closing Date
and signed by a Responsible Officer of the Borrower, confirming compliance with
the conditions precedent set forth in paragraph (n) of this Section 4.02
as of the Closing Date.


 


(d)   The Administrative Agent shall
have received all Fees and other amounts due and payable on or prior to the
Closing Date, including, to the extent invoiced prior to the Closing Date, reimbursement
or payment of all out-of-pocket expenses required to be reimbursed or paid by
the Borrower hereunder or under any other Loan Document.


 


(e)   The
Security Documents shall have been duly executed by each Loan Party that is to
be a party thereto and shall be in full force and effect on the Closing Date.
The Collateral Agent on behalf of the Secured Parties shall have been granted a
security interest in the Collateral of the type and priority described in each
Security Document.


 


(f)   The Collateral Agent shall have
received a Perfection Certificate with respect to the Loan Parties dated the
Closing Date and duly executed by a Responsible Officer of Holdings and the
Borrower, and shall have received the results of a search of the Uniform
Commercial Code filings (or equivalent filings) made with respect to the Loan
Parties in the states (or other jurisdictions) of formation of such persons, in
which the chief executive office of each such person is located and in the
other jurisdictions in which such persons maintain property, in each case as
indicated on such Perfection Certificate, together with copies of the financing
statements (or similar documents) disclosed by such search, and accompanied by
evidence satisfactory to the Collateral Agent that the Liens indicated in any
such financing statement (or similar document) would be permitted under Section 6.02
or have been or will be contemporaneously released or terminated.


 


(g)   Except as otherwise specifically
contemplated hereunder or by the Security Documents, (i) each of the
Security Documents, in form and substance satisfactory to the Lenders, relating
to each of the Mortgaged Properties shall have been duly executed by the
parties thereto and delivered to the Collateral Agent and shall be in full force
and effect, (ii) each of such Mortgaged Properties shall not be subject to
any Lien other than those permitted under Section 6.02 or Liens which
shall be paid from the proceeds of the First Credit Event and for which the
Borrower has received a commitment from the holder thereof to release the same
upon payoff from the proceeds of the First Credit Event and (iii) each of
such Security Documents shall be in proper form for filing and recording in the
recording office as specified on Schedule 3.19(c); provided that to the extent a perfected security interest in
any assets of a type that cannot be perfected by the filing of a UCC financing
statement or the delivery of stock certificates is not able to be provided on
the Closing Date after the Borrower’s use of commercially reasonable efforts


 


65

















 


to do so, the
providing of a perfected security interest in such assets shall not constitute
a condition precedent to the first Credit Event but such requirement to create
a perfected security interest in such assets shall be satisfied
after the Closing Date pursuant to Section 5.13


 


(h)   The
Administrative Agent shall have received a copy of, or a certificate as to
coverage under, the insurance policies required by Section 5.02 and the
applicable provisions of the Security Documents, each of which shall be
endorsed or otherwise amended to include a customary lender’s loss payable
endorsement and to name the Collateral Agent as additional insured, in form and
substance satisfactory to the Administrative Agent.


 


(i)   The
Acquisition and the other Transactions shall be consummated substantially
simultaneously with the initial funding of Loans on the Closing Date in
accordance with applicable law and on the terms in this Agreement and in the
Merger Agreement (without any amendment, modification or waiver thereof that is
materially adverse to the Lenders (as reasonably determined by the
Administrative Agent) without the prior written consent of the Administrative
Agent). The Administrative Agent shall have received copies of the Merger
Agreement and all certificates, opinions and other documents delivered
thereunder, certified by a Financial Officer as being complete and correct.


 


(j)   The Equity Contribution shall
have been made and the Administrative Agent shall be satisfied with the
capitalization and structure of Holdings and the Borrower.


 


(k)   All
principal, premium, if any, interest, fees and other amounts due or outstanding
under the Existing Debt shall have been, or substantially simultaneously with
the initial funding of Loans on the Closing Date shall be, paid in full, the
commitments thereunder terminated and all guarantees and security in support
thereof discharged and released, and the Administrative Agent shall have
received reasonably satisfactory evidence thereof. Immediately after giving
effect to the Transactions and the other transactions contemplated hereby,
Holdings, the Borrower and the Subsidiaries shall have outstanding no
Indebtedness or preferred stock other than (a) Indebtedness outstanding
under this Agreement, (b) the Second Lien Term Loan, (c) Indebtedness
set forth on Schedule 6.01 and (d) other Indebtedness in an outstanding
principal amount not to exceed $100,000 in the aggregate.


 


(l)   The Administrative Agent shall
have received a certificate from the chief financial officer of Holdings certifying
that Holdings and its subsidiaries, on a consolidated basis after giving effect
to the Transactions to occur on the Closing Date, are solvent.


 


(m)   The Lenders shall have received,
to the extent reasonably requested, at least five Business Days prior to the
Closing Date, all documentation and other information required by regulatory
authorities under applicable “know your customer” and anti-money laundering rules and
regulations, including the USA PATRIOT Act.


 


66

















 


(n)   
(i) The representations and warranties set forth in Sections 3.01, 3.02,
3.03, 3.11, 3.12, 3.19 (subject to paragraph (g) above) and 3.24 shall be true
and correct in all material respects on the Closing Date with the same effect
as though made on and as of such date, except to the extent such
representations and warranties expressly relate to an earlier date and (ii) the
condition relating to the accuracy of the representations and warranties of the
Company in the Merger Agreement as are material to the interests of the Lenders
shall have been satisfied.


 


(o)   The
Administrative Agent shall have received a certificate, dated the Closing Date
and signed by a Responsible Officer of the Company, certifying that not less
than $10,000,000 in aggregate cash liquidity is in bank accounts in
jurisdictions appropriate for carrying out the Company’s operational objectives
(which, for greater certainty, shall not include financing in whole or in part
any Permitted Acquisition), including planned Capital Expenditures, during the
period from the Closing Date to the first anniversary of the Closing Date.


 


ARTICLE V


 


Affirmative
Covenants


 


Each
of Holdings and the Borrower covenants and agrees with each Lender that so long
as this Agreement shall remain in effect and until the Commitments have been
terminated and the principal of and interest on each Loan, all Fees and all
other expenses or amounts payable under any Loan Document shall have been paid
in full and all Letters of Credit have been canceled or have expired (or cash
collateralized on terms reasonably acceptable to the Administrative Agent and
the Issuing Bank) and all amounts drawn thereunder have been reimbursed in full,
unless the Required Lenders shall otherwise consent in writing, each of
Holdings and the Borrower will, and will cause each of the Subsidiaries to:


 


SECTION 5.01.
Existence; Compliance with Laws;
Businesses and Properties. (a) Do or cause to be done all
things necessary to preserve, renew and keep in full force and effect its legal
existence, except as otherwise expressly permitted under Section 6.05.


 


(b)   Do or cause to be done all things
necessary to obtain, preserve, renew, extend and keep in full force and effect
the rights, licenses, permits, franchises, authorizations, patents, copyrights,
trademarks and trade names material to the conduct of its business; maintain
and operate such business in substantially the manner in which it is presently
conducted and operated; comply in all material respects with all applicable
laws, rules, regulations and decrees and orders of any Governmental Authority,
whether now in effect or hereafter enacted; and at all times maintain and preserve
all property material to the conduct of such business and keep such property in
good repair, working order and condition and from time to time make, or cause
to be made, all needful and proper repairs, renewals, additions, improvements
and replacements thereto necessary in order that the business carried on in
connection therewith may be properly conducted at all times.


 


67

















 


SECTION 5.02.
Insurance.  (a) Keep its insurable properties
adequately insured at all times by financially sound and reputable insurers;
maintain such other insurance, to such extent and against such risks, including
fire and other risks insured against by extended coverage, as is customary with
companies in the same or similar businesses operating in the same or similar
locations or jurisdictions, including, where applicable, public liability
insurance against claims for personal injury or death or property damage
occurring upon, in, about or in connection with the use of any properties
owned, occupied or controlled by it; and maintain such other insurance as may
be required by applicable law.


 


(b)   Cause
all such policies covering any Collateral to be endorsed or otherwise amended
to include a customary lender’s loss payable endorsement, in form and substance
satisfactory to the Administrative Agent and the Collateral Agent, which
endorsement shall provide that, from and after the Closing Date, if the
insurance carrier shall have received written notice from the Administrative
Agent or the Collateral Agent of the occurrence of an Event of Default, the
insurance carrier shall pay all proceeds otherwise payable to the Borrower or
the Loan Parties under such policies directly to the Collateral Agent; cause
all such policies to provide that neither the Borrower, the Administrative
Agent, the Collateral Agent nor any other party shall be a coinsurer thereunder
and to contain a “Replacement Cost Endorsement”, without any deduction for
depreciation, and such other provisions as the Administrative Agent or the
Collateral Agent may reasonably require from time to time to protect their
interests; deliver evidence reasonably satisfactory to the Collateral Agent of
all such policies; cause each such policy to provide that it shall not be
canceled or not renewed (i) by reason of nonpayment of premium upon not
less than 10 days’ prior written notice thereof by the insurer to the
Administrative Agent and the Collateral Agent (giving the Administrative Agent
and the Collateral Agent the right to cure defaults in the payment of premiums)
or (ii) for any other reason upon not less than 30 days’ prior written
notice thereof by the insurer to the Administrative Agent and the Collateral
Agent; deliver evidence reasonably satisfactory to the Administrative Agent and
the Collateral Agent, prior to the cancellation or nonrenewal of any such
policy of insurance, of renewal of a policy previously delivered to the
Administrative Agent and the Collateral Agent, together with evidence
reasonably satisfactory to the Administrative Agent and the Collateral Agent of
payment of the premium therefor.


 


(c)   If
at any time the area in which the Premises (as defined in the Mortgages) are
located is designated (i) a “flood hazard area” in any Flood Insurance
Rate Map published by the Federal Emergency Management Agency (or any successor
agency), obtain flood insurance in such total amount as the Administrative
Agent, the Collateral Agent or the Required Lenders may from time to time
reasonably require, and otherwise comply with the National Flood Insurance
Program as set forth in the Flood Disaster Protection Act of 1973, as it may be
amended from time to time, or (ii) a “Zone 1” area, obtain earthquake
insurance in such total amount as the Administrative Agent, the Collateral Agent
or the Required Lenders may from time to time reasonably require.


 


(d)   With respect to any Mortgaged
Property, carry and maintain comprehensive general liability insurance
including the “broad form CGL endorsement” or its equivalent


 


68

















 


and coverage on an
occurrence basis against claims made for personal injury (including bodily
injury, death and property damage) and umbrella liability insurance against any
and all causes of loss, in no event for a combined single limit of less than
$10,000,000, naming the Collateral Agent as an additional insured, on forms
satisfactory to the Collateral Agent.


 


(e)   Notify the Administrative Agent
and the Collateral Agent promptly whenever any separate insurance concurrent in
form or contributing in the event of loss with that required to be maintained
under this Section 5.02 is taken out by any Loan Party; and promptly
deliver evidence reasonably satisfactory to the Administrative Agent and the
Collateral Agent of such policy or policies.


 


SECTION 5.03.
Obligations and Taxes. Pay
its Indebtedness and other material obligations promptly and in accordance with
their terms and pay and discharge all material taxes, assessments and
governmental charges or levies imposed upon it or upon its income or profits or
in respect of its property, before the same shall become delinquent or in
default, as well as all lawful claims for labor, materials and supplies or
otherwise that, if unpaid, might give rise to a Lien upon such properties or
any part thereof; provided, however, that
such payment and discharge shall not be required with respect to any such tax,
assessment, charge, levy or claim so long as the validity or amount thereof
shall be contested in good faith by appropriate proceedings and the Borrower
shall have set aside on its books adequate reserves with respect thereto in
accordance with GAAP.


 


SECTION 5.04. Financial Statements, Reports, etc.  In the case of the Borrower, furnish to
the Administrative Agent, which shall furnish to each Lender:


 


(a)   within 120 days after the end of each
fiscal year, its consolidated balance sheet and related statements of income,
stockholders’ equity and cash flows showing the financial condition of the
Borrower and its consolidated Subsidiaries as of the close of such fiscal year
and the results of its operations and the operations of such Subsidiaries
during such year, together with comparative figures for the immediately
preceding fiscal year, all audited by UHY LLP or other independent public
accountants of recognized national standing and accompanied by an opinion of
such accountants (which opinion shall be without a “going concern” or like
qualification or exception and without any qualification or exception as to the
scope of such audit) to the effect that such consolidated financial statements
fairly present the financial condition and results of operations of the
Borrower and its consolidated Subsidiaries on a consolidated basis in
accordance with GAAP consistently applied;


 


(b)   within 45 days after the end of
each of the first three fiscal quarters of each fiscal year, its consolidated
balance sheet and related statements of income, stockholders’ equity and cash
flows showing the financial condition of the Borrower and its consolidated
Subsidiaries as of the close of such fiscal quarter and the results of its
operations and the operations of such Subsidiaries during such fiscal quarter
and the then elapsed portion of the fiscal year, and comparative figures for
the same periods in the immediately preceding fiscal year, all certified by one
of its Financial Officers as fairly presenting the financial condition and
results of operations of the Borrower and its


 


69

















 


consolidated
Subsidiaries on a consolidated basis in accordance with GAAP consistently
applied, subject to normal year-end audit adjustments and the absence of
footnotes;


 


(c)   concurrently with any delivery of
financial statements under paragraph (a) or (b) above, a certificate
of the accounting firm (in the case of paragraph (a)) or Financial Officer (in
the case of paragraph (b)) opining on or certifying such statements (which
certificate, when furnished by an accounting firm, may be limited to accounting
matters and disclaim responsibility for legal interpretations) (i) certifying
that no Event of Default or Default has occurred or, if such an Event of
Default or Default has occurred, specifying the nature and extent thereof and
any corrective action taken or proposed to be taken with respect thereto and (ii) setting
forth computations in reasonable detail satisfactory to the Administrative
Agent demonstrating compliance with the covenants contained in Sections 6.10,
6.11, 6.12 and 6.13 and, in the case of a certificate delivered with the
financial statements required by paragraph (a) above, setting forth the
Borrower’s calculation of Excess Cash Flow;


 


(d)   within 90 days after the beginning of each fiscal
year of the Borrower, a detailed consolidated budget for such fiscal year
(including a projected consolidated balance sheet and related statements of
projected operations and cash flows as of the end of and for such fiscal year
and setting forth the assumptions used for purposes of preparing such budget)
and, promptly when available, any significant revisions of such budget;


 


(e)   promptly after the same become
publicly available, copies of all periodic and other reports, proxy statements
and other materials filed by Holdings, the Borrower or any Subsidiary with the
Securities and Exchange Commission, or any Governmental Authority succeeding to
any or all of the functions of said Commission, or with any national securities
exchange, or distributed to its shareholders, as the case may be;


 


(f)   promptly after the receipt thereof
by Holdings or the Borrower or any of their respective subsidiaries, a copy of
any “management letter” received by any such person from its certified public
accountants and the management’s response thereto;


 


(g)   promptly after the request by any
Lender, all documentation and other information that such Lender reasonably
requests in order to comply with its ongoing obligations under applicable “know
your customer” and anti-money laundering rules and regulations, including
the USA PATRIOT Act;


 


(h)   promptly after the request by the
Administrative Agent or any Lender, on and after the effectiveness of the
applicable provisions of the Pension Act, copies of (i) any documents
described in Section 101(k)(1) of ERISA that the Borrower or any of
its ERISA Affiliates may request with respect to any Multiemployer Plan and (ii) any
notices described in Section 101(l)(1) of ERISA that the Borrower or
any of its ERISA Affiliates may request with respect to any Multiemployer Plan;
provided that if the Borrower or
any of its ERISA Affiliates has not requested such documents or notices from
the administrator or sponsor of the applicable Multiemployer Plan, the Borrower
or the applicable ERISA Affiliate shall promptly make a request for such
documents or


 


70

















 


notices from such
administrator or sponsor and shall provide copies of such documents and notices
promptly after receipt thereof; and


 


(i)   promptly, from time to time, such
other information regarding the operations, business affairs and financial
condition of Holdings, the Borrower or any Subsidiary, or compliance with the
terms of any Loan Document, as the Administrative Agent or any Lender may
reasonably request.


 


Documents
required to be delivered pursuant to Section 5.04(e) may be delivered
electronically and if so delivered, shall be deemed to have been delivered on
the date (i) on which the Borrower posts such documents, or provides a
link thereto at http://www.strlab.com/www/strlab/; or (ii) on which such
documents are posted on the Borrower’s behalf on an Internet or intranet
website, if any, to which each Lender and the Administrative Agent have access
(whether a commercial, third-party website or sponsored by the Administrative
Agent); provided that: (x) the
Borrower shall deliver paper copies of such documents to the Administrative
Agent if it so requests or to any Lender that so requests the Borrower to
deliver such paper copies and (y) the Borrower shall notify the
Administrative Agent and each Lender of the posting of any such documents and
provide to the Administrative Agent by electronic mail electronic versions
(i.e. soft copies) of such documents.


 


SECTION 5.05. Litigation
and Other Notices.   Furnish to the Administrative
Agent, the Issuing Bank and each Lender prompt written notice of the following:


 


(a)   any Event of Default or Default,
specifying the nature and extent thereof and the corrective action (if any)
taken or proposed to be taken with respect thereto;


 


(b)   the filing or commencement of, or
any written threat or written notice of intention of any person to file or
commence, any action, suit or proceeding, whether at law or in equity or by or
before any Governmental Authority, against the Borrower or any Affiliate
thereof that could reasonably be expected to result in a Material Adverse
Effect;


 


(c)   the occurrence of any ERISA Event
that, alone or together with any other ERISA Events that have occurred, could
reasonably be expected to result in a Material Adverse Effect;


 


(d)   any development that has resulted
in, or could reasonably be expected to result in, a Material Adverse Effect;
and


 


(e)   any change in the Borrower’s
corporate rating by S&P, in the Borrower’s corporate family rating by Moody’s
or in the ratings of the Credit Facilities by S&P or Moody’s, or any notice
from either such agency indicating its intent to effect such a change or to
place the Borrower or the Credit Facilities on a “CreditWatch” or “WatchList”
or any similar list, in each case with negative implications, or its cessation
of, or its intent to cease, rating the Borrower or the Credit Facilities.


 


SECTION 5.06. Information
Regarding Collateral.  (a) Furnish
to the Administrative Agent prompt written notice of any change (i) in any
Loan Party’s


 


71

















 


corporate name, (ii) in
the jurisdiction of organization or formation of any Loan Party, (iii) in
any Loan Party’s identity or corporate structure or (iv) in any Loan Party’s
Federal Taxpayer Identification Number. Holdings and the Borrower agree 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
reasonably required in order for the Collateral Agent to continue at all times
following such change to have a valid, legal and perfected security interest in
all the Collateral. Holdings and the Borrower also agree promptly to notify the
Administrative Agent if any material portion of the Collateral is damaged or
destroyed.


 


(b)   In the case of the Borrower, each
year, at the time of delivery of the annual financial statements with respect
to the preceding fiscal year pursuant to Section 5.04(a), deliver to the
Administrative Agent a certificate of a Financial Officer (i) setting
forth the information required pursuant to Section 2 of the Perfection
Certificate or confirming that there has been no change in such information
since the date of the Perfection Certificate delivered on the Closing Date or
the date of the most recent certificate delivered pursuant to this Section 5.06
and (ii) to the extent applicable, certifying that all Uniform Commercial
Code financing statements (including fixture filings, as applicable) or other
appropriate filings recordings or registrations, including all refilings,
recordings and registrations, containing a description of the Article 9
Collateral (as defined in the Guarantee and Collateral Agreement) have been
filed of record in each governmental, municipal or other appropriate office in
each jurisdiction identified pursuant to clause (i) of this Section 5.06(b) to
the extent necessary to protect and perfect the security interest for a period
of not less than 18 months after the date of such certificate (except as noted
therein with respect to any continuation statements to be filed within such
period). Each certificate delivered pursuant to this Section 5.06(b)(ii) shall
identify in the format of Section 13 of the Perfection Certificate all
Intellectual Property of any Loan Party in existence on the date thereof and
not then listed on the Perfection Certificate or previously so identified to
the Collateral Agent.


 


SECTION 5.07. Maintaining Records; Access to Properties and Inspections;
Maintenance of Ratings.  (a) Keep proper books of record and
account in which full, true and correct entries in conformity with GAAP and all
requirements of law are made of all dealings and transactions in relation to
its business and activities. Each Loan Party will, and will cause each of its
subsidiaries to, permit any representatives designated by the Administrative
Agent or any Lender to visit and inspect the financial records and the
properties of such person at reasonable times and as often as reasonably
requested and to make extracts from and copies of such financial records, and
permit any representatives designated by the Administrative Agent or any Lender
to discuss the affairs, finances and condition of such person with the officers
thereof and independent accountants therefor; provided
that as long as no Default or Event of Default shall have occurred
and shall be continuing, no more than one such site inspection may be conducted
in any calendar year (which shall be conducted by representatives designated by
the Administrative Agent).


 


(b)   In the case of Holdings and the
Borrower, use commercially reasonable efforts to cause the Credit Facilities to
be continuously rated by S&P and Moody’s, and in the case of the Borrower,
use commercially reasonable efforts to maintain a corporate


 


72

















 


rating from
S&P and a corporate family rating from Moody’s, in each case in respect of
the Borrower.


 


SECTION 5.08. Use of
Proceeds. Use the
proceeds of the Loans and request the issuance of Letters of Credit only for the
purposes specified in the introductory statement to this Agreement (or, in the
case of the Incremental Term Loans, as set forth in the applicable Incremental
Term Loan Assumption Agreement), it being understood that up to $1,000,000 of
Revolving Loans may be made on the Closing Date.


 


SECTION 5.09. Employee
Benefits.  (a) With
respect to any Plan or Foreign Pension Plan sponsored or maintained by Borrower
or any Subsidiary, comply in all material respects with the applicable
provisions of ERISA and the Code and the laws applicable to any Foreign Pension
Plan and (b) furnish to the Administrative Agent as soon as possible
after, and in any event within ten days after any responsible officer of
Holdings, the Borrower or any ERISA Affiliate knows or has reason to know that,
any ERISA Event has occurred that, alone or together with any other ERISA Event
could reasonably be expected to result in a Material Adverse Effect, a
statement of a Financial Officer of Holdings or the Borrower setting forth
details as to such ERISA Event and the action, if any, that Holdings or the
Borrower proposes to take with respect thereto.


 


SECTION 5.10. Compliance with Environmental Laws. Comply, and use commercially reasonable
efforts to cause all lessees and other persons occupying its properties to
comply, in all respects with all Environmental Laws applicable to its
operations and properties; obtain and renew all environmental permits necessary
for its operations and properties; and conduct any remedial action in
accordance with Environmental Laws, except where the failure to comply
therewith, either individually or in the aggregate, could not reasonably be
expected to have a Material Adverse Effect; provided,
however, that none of Holdings, the Borrower or any Subsidiary shall
be required to undertake any remedial action required by Environmental Laws to
the extent that its obligation to do so is being contested in good faith and by
proper proceedings and appropriate reserves are being maintained with respect
to such circumstances in accordance with GAAP.


 


SECTION 5.11. Further Assurances. Execute any and all further documents, financing
statements, agreements and instruments, and take all further action (including
filing Uniform Commercial Code and other financing statements, mortgages and
deeds of trust) that may be required under applicable law, or that the Required
Lenders, the Administrative Agent or the Collateral Agent may reasonably
request, in order to effectuate the transactions contemplated by the Loan
Documents and in order to grant, preserve, protect and perfect the validity and
first priority of the security interests created or intended to be created by
the Security Documents. The Borrower will cause any subsequently acquired or
organized Domestic Subsidiary to become a Loan Party by executing the Guarantee
and Collateral Agreement and each applicable Security Document in favor of the
Collateral Agent. In addition, from time to time, the Borrower will, at its
cost and expense, promptly secure the Obligations by pledging or creating, or
causing to be pledged or created, perfected security interests with respect to
such of its assets and properties as the Administrative Agent or the Required
Lenders shall designate


 


73

















 


(it being understood that
it is the intent of the parties that the Obligations shall be secured by
substantially all the assets of the Borrower and its Domestic Subsidiaries
(including real and other properties acquired subsequent to the Closing Date)).
Such security interests and Liens will be created under the Security Documents
and other security agreements, mortgages, deeds of trust, leasehold mortgages,
assignments of leases and rents, modifications and other instruments and
documents in form and substance satisfactory to the Collateral Agent, and the
Borrower shall deliver or cause to be delivered to the Lenders all such
instruments and documents (including lien searches, surveys, abstracts,
appraisals, legal opinions and a policy or policies of title insurance issued
by a nationally recognized title insurance company, together with such
endorsements, coinsurance and reinsurance as may be requested by the Collateral
Agent and the Lenders, insuring the Mortgages as valid first liens, free of
Liens other than those permitted under Section 6.02) as the Collateral
Agent shall reasonably request to evidence compliance with this Section. The
Borrower agrees to provide such evidence as the Collateral Agent shall
reasonably request as to the perfection and priority status of each such
security interest and Lien. In furtherance of the foregoing, the Borrower will
give prompt notice to the Administrative Agent of the acquisition by it or any
of the Subsidiaries of any real property (or any interest in real property) having
a value in excess of $1,000,000.


 


SECTION 5.12. Interest Rate Protection.  No later than the 90th day after the
Closing Date, the Borrower shall enter into, and for a minimum of three years
thereafter maintain, Hedging Agreements acceptable to the Administrative Agent
that result in at least 50% of the aggregate principal amount of its funded
long-term Indebtedness being effectively subject to a fixed or maximum interest
rate acceptable to the Administrative Agent.


 


SECTION 5.13. Post-Closing Items. Holdings and the Borrower shall, and shall cause each of
the Subsidiaries to, take all necessary actions to satisfy the requirements set
forth on Schedule 5.13 within the period specified on such schedule (or such
longer period as may be consented to by the Administrative Agent).


 


SECTION 5.14. Funds Update. The Borrower shall, with
respect to each of the first four fiscal quarters ending after the Closing
Date, provide the Administrative Agent with reasonably detailed information
about the uses of the $10,000,000 described in Section 4.02(o), all of
which such uses to be consistent with those contemplated by Section 4.02(o).


 


SECTION 5.15. Purchase
Price Adjustments.  Holdings
and the Borrower shall, take all actions reasonably necessary to ensure that
all purchase price adjustments related to the Transactions payable by the
sellers shall be paid to the Borrower.


 


74














 


ARTICLE VI


 


Negative Covenants


 


Each of Holdings and the Borrower covenants and agrees
with each Lender that, so long as this Agreement shall remain in effect and
until the Commitments have been terminated and the principal of and interest on
each Loan, all Fees and all other expenses or amounts payable under any Loan
Document have been paid in full and all Letters of Credit have been cancelled
or have expired (or cash collateralized on terms reasonably acceptable to the
Administrative Agent and the Issuing Bank) and all amounts drawn thereunder
have been reimbursed in full, unless the Required Lenders shall otherwise
consent in writing, neither Holdings nor the Borrower will, nor will they cause
or permit any of the Subsidiaries to:


 


SECTION 6.01. Indebtedness.
Incur, create, assume or permit to exist any Indebtedness, except:


 


(a) Indebtedness
existing on the date hereof and set forth in Schedule 6.01 and any extensions,
renewals or replacements of such Indebtedness to the extent the principal
amount of such Indebtedness is not increased, neither the final maturity nor
the weighted average life to maturity of such Indebtedness is decreased, such
Indebtedness, if subordinated to the Obligations, remains so subordinated on
terms no less favorable to the Lenders, and the original obligors in respect of
such Indebtedness remain the only obligors thereon;


 


(b) Indebtedness
created hereunder and under the other Loan Documents (including, for greater
certainty, any Indebtedness incurred under Section 2.24 or Section 2.25);


 


(c) intercompany
Indebtedness of the Borrower and the Subsidiaries to the extent permitted by Section 6.04(c);


 


(d) Indebtedness of
the Borrower or any Subsidiary incurred to finance the acquisition,
construction or improvement of any fixed or capital assets, and extensions,
renewals and replacements of any such Indebtedness that do not increase the
outstanding principal amount thereof; provided
that (i) such Indebtedness is incurred prior to or within 90
days after such acquisition or the completion of such construction or
improvement and (ii) the aggregate principal amount of Indebtedness
permitted by this Section 6.01(d), when combined with the aggregate
principal amount of all Capital Lease Obligations and Synthetic Lease
Obligations incurred pursuant to Section 6.01(e), shall not exceed
$10,000,000 at any time outstanding;


 


(e) Capital Lease
Obligations and Synthetic Lease Obligations in an aggregate principal amount,
when combined with the aggregate principal amount of all Indebtedness incurred
pursuant to Section 6.01(d), not in excess of $10,000,000 at any time
outstanding;


 


75

















 


(f) Attributable
Debt in respect of Sale/Leaseback Transactions; provided, however, that the aggregate principal amount of
all Indebtedness then outstanding and incurred pursuant to this clause (f) does
not exceed (i) $5,000,000 in respect of property owned by the Borrower or
any Subsidiary on the Closing Date or (ii) $5,000,000 in respect of any
property acquired by the Borrower or any Subsidiary after the Closing Date;


 


(g) Indebtedness
under performance bonds or with respect to workers’ compensation claims, in
each case incurred in the ordinary course of business;


 


(h) Indebtedness
incurred by Foreign Subsidiaries in an aggregate principal amount not exceeding
$10,000,000 at any time outstanding;


 


(i) Indebtedness
under the Second Lien Term Loan Agreement in an aggregate principal amount at
any time outstanding not to exceed $75,000,000, and any refinancings thereof to
the extent permitted by the Intercreditor Agreement;


 


(j) Indebtedness
under the Spanish Subsidized Loans in an aggregate principal amount not
exceeding $5,000,000 at any time outstanding; and


 


(k) other unsecured
Indebtedness of the Borrower or the Subsidiaries in an aggregate principal
amount not exceeding $5,000,000 at any time outstanding.


 


SECTION 6.02. Liens.  Create,
incur, assume or permit to exist any Lien on any property or assets (including
Equity Interests or other securities of any person, including the Borrower or
any Subsidiary) now owned or hereafter acquired by it or on any income or
revenues or rights in respect of any thereof, except:


 


(a) Liens on property or assets of the
Borrower and its Subsidiaries existing on the date hereof and set forth in
Schedule 6.02; provided that such
Liens shall secure only those obligations which they secure on the date hereof
and extensions, renewals and replacements thereof permitted hereunder;


 


(b) any Lien created
under the Loan Documents;


 


(c) any Second
Priority Liens;


 


(d) any Lien
existing on any property or asset prior to the acquisition thereof by the
Borrower or any Subsidiary or existing on any property or assets of any person
that becomes a Subsidiary after the date hereof prior to the time such person
becomes a Subsidiary, as the case may be; provided
that (i) such Lien is not created in contemplation of or in
connection with such acquisition or such person becoming a Subsidiary, (ii) such
Lien does not apply to any other property or assets of Holdings, the Borrower
or any Subsidiary and (iii) such Lien secures only those obligations which
it secures on the date of such acquisition or the date such person becomes a
Subsidiary, as the case may be;


 


76

















 


(e) Liens for taxes
not yet due or which are being contested in compliance with Section 5.03
or are immaterial in amount;


 


(f) carriers’,
warehousemen’s, mechanics’, materialmen’s, repairmen’s or other like Liens
arising in the ordinary course of business and securing obligations that are
not due and payable or which are being contested in compliance with Section 5.03;


 


(g) pledges and
deposits made in the ordinary course of business in compliance with workmen’s
compensation, unemployment insurance and other social security laws or
regulations;


 


(h) deposits to
secure the performance of bids, trade contracts (other than for Indebtedness),
leases (other than Capital Lease Obligations), statutory obligations, surety
and appeal bonds, performance bonds and other obligations of a like nature
incurred in the ordinary course of business;


 


(i) zoning
restrictions, easements, rights-of-way, restrictions on use of real property
and other similar encumbrances incurred in the ordinary course of business
which, in the aggregate, are not substantial in amount and do not materially
detract from the value of the property subject thereto or interfere with the
ordinary conduct of the business of the Borrower or any of its Subsidiaries;


 


(j) purchase money
security interests in real property, improvements thereto or equipment
hereafter acquired (or, in the case of improvements, constructed) by the
Borrower or any Subsidiary; provided that
(i) such security interests secure Indebtedness permitted by Section 6.01,
(ii) such security interests are incurred, and the Indebtedness secured
thereby is created, within 90 days after such acquisition (or construction), (iii) the
Indebtedness secured thereby does not exceed 100% of the lesser of the cost or
the fair market value of such real property, improvements or equipment at the
time of such acquisition (or construction) and (iv) such security
interests do not apply to any other property or assets of the Borrower or any
Subsidiary;


 


(k) Liens arising
out of judgments or awards in respect of which Holdings, the Borrower or any of
the Subsidiaries shall in good faith be prosecuting an appeal or proceedings
for review in respect of which there shall be secured a subsisting stay of
execution pending such appeal or proceedings; provided
that the aggregate amount of all such judgments or awards (and any
cash and the fair market value of any property subject to such Liens) does not
exceed $5,000,000 at any time outstanding;


 


(1) any Lien
securing Indebtedness incurred by the Borrower or any Subsidiary pursuant to Section 6.01(f);
provided that any such Liens
attach only to the property that is the subject of, and proceeds thereof in
connection with, the applicable Sale/Leaseback Transaction and shall not attach
to any other property


 


77

















 


of
the Borrower or any Subsidiary theretofore existing or (except for any such
proceeds) which arises after the date thereof


 


(m) Liens on assets
of Foreign Subsidiaries; provided that
(i) such Liens do not extend to, or encumber, assets that constitute
Collateral or the Equity Interests of the Borrower or any of the Subsidiaries,
and (ii) such Liens extending to the assets of any Foreign Subsidiary
secure only Indebtedness incurred by such Foreign Subsidiary pursuant to Section 6.01(h);
and


 


(n) other Liens that
do not, individually or in the aggregate, secure obligations (or encumber
property with a fair market value) in excess of $2,500,000 at any one time.


 


SECTION 6.03. Sale/LeaseBack Transactions.  Enter into any Sale/Leaseback Transaction
unless (a) the sale or transfer of such property is
permitted by Section 6.05 and (b) any Capital Lease Obligations,
Synthetic Lease Obligations or Liens arising in connection therewith are
permitted by Sections 6.01 and 6.02, as the case may be.


 


SECTION 6.04. Investments, Loans and Advances.  Purchase, hold or acquire any Equity
Interests, evidences of indebtedness or other securities of, make or permit to
exist any loans or advances to, or make or permit to exist any investment or
any other interest in, any other person, except:


 


(a) (i) investments by Holdings, the
Borrower and the Subsidiaries existing on the date hereof in the Equity
Interests of the Borrower and the Subsidiaries, (ii) additional
investments by Holdings, the Borrower and the Subsidiaries in the Equity
Interests of the Borrower and the Subsidiaries and (iii) investments in
STR India Pvt. Ltd. in an amount not to exceed $5,000,000 in the aggregate; provided that (A) any such Equity
Interests held by a Loan Party other than Equity Interests in Excluded Assets
(as defined in the Guarantee and Collateral Agreement) shall be pledged
pursuant to the Guarantee and Collateral Agreement (subject to the limitations
applicable to voting stock of a Foreign Subsidiary referred to therein) and (B) the
aggregate amount of investments made after the Closing Date (other than
pursuant to clause (iii) above) by Loan Parties in, and loans and advances
made after the Closing Date by Loan Parties to Subsidiaries that are not Loan
Parties (determined without regard to any write-downs or write-offs of such
investments, loans and advances) shall not exceed $10,000,000 at any time
outstanding;


 


(b) Permitted Investments;


 


(c) loans or advances made by the Borrower to any
Subsidiary and made by any Subsidiary to Holdings, the Borrower or any other
Subsidiary; provided that (i) any
such loans and advances made by a Loan Party to Subsidiaries that are not Loan
Parties shall be evidenced by a promissory note pledged to the Collateral Agent
for the ratable benefit of the Secured Parties pursuant to the Guarantee and
Collateral Agreement and (ii) the amount of such loans and advances made
by


 


78

















 


Loan
Parties to Subsidiaries that are not Loan Parties shall be subject to the
limitation set forth in clause (a) above;


 


(d) investments received in connection with the
bankruptcy or reorganization of, or settlement of delinquent accounts and
disputes with, customers and suppliers, in each case in the ordinary course of
business;


 


(e) the Borrower and the Subsidiaries may make loans and
advances in the ordinary course of business to their respective employees so
long as the aggregate principal amount thereof at any time outstanding
(determined without regard to any write-downs or write-offs of such loans and
advances) shall not exceed $2,000,000;


 


(f) the Borrower and the Subsidiaries may enter
into Hedging Agreements that (i) are required by Section 5.12 or (ii) are
not speculative in nature and are related to income derived from foreign
operations of the Borrower or any Subsidiary or otherwise related to purchases
from foreign suppliers;


 


(g) the Borrower or any Subsidiary may acquire
all or substantially all the assets of a person or line of business of such
person, or not less than 85% of the Equity Interests (other than directors’
qualifying shares) of a person (referred to herein as the “Acquired Entity”); provided that (i) such acquisition was not preceded
by an unsolicited tender offer for such Equity Interests by, or proxy contest
initiated by, Holdings, the Borrower or any Subsidiary; (ii) the Acquired
Entity shall be in a similar or reasonably related or incidental line of
business to those of the Borrower and the Subsidiaries as conducted during the current
and most recently concluded calendar year; and (iii) at the time of such
transaction (A) both before and after giving
effect thereto, no Default or Event of Default shall have occurred and be
continuing; (B) the Borrower would be in compliance with the covenants set
forth in Sections 6.11, 6.12 and 6.13 as of the most recently completed period
of four consecutive fiscal quarters ending prior to such transaction for which
the financial statements and certificates required by Section 5.04(a) or
5.04(b), as the case may be, and 5.04(c) have been delivered, after giving
pro forma effect to such transaction and to any other event occurring after
such period as to which pro forma recalculation is appropriate (including any
other transaction described in this Section 6.04(g) occurring after
such period) as if such transaction had occurred as of the first day of such
period; (C) the total consideration paid in connection with such
acquisition and any other acquisitions pursuant to this Section 6.04(g) (including
any Indebtedness of the Acquired Entity that is assumed by the Borrower or any
Subsidiary following such acquisition and any payments following such
acquisition pursuant to earn-out provisions or similar obligations) shall not
in the aggregate exceed $50,000,000 and (D) the Borrower shall have
delivered a certificate of a Financial Officer, certifying as to the foregoing
and containing reasonably detailed calculations in support thereof, in form and
substance satisfactory to the Administrative Agent; (iv) the Borrower
shall comply, and shall cause the Acquired Entity to comply, with the
applicable provisions of Section 5.11 and the Security Documents; and


 


79

















 


(v) if
the Acquired Entity would not constitute a wholly owned Subsidiary of the
Borrower and would be required to become a Subsidiary Guarantor hereunder, each
holder of an Equity Interest therein (other than the Borrower or any wholly
owned Subsidiary) shall have executed and delivered to the Collateral Agent a
consent and waiver in form and substance reasonably satisfactory to the
Collateral Agent permitting such Acquired Entity to become a Subsidiary
Guarantor hereunder and a party to the Security Documents (any acquisition of
an Acquired Entity meeting all the criteria of this Section 6.04(g) being
referred to herein as a “Permitted
Acquisition”); and


 


(h) in addition to investments permitted by
paragraphs (a) through (g) above, additional investments, loans and
advances by the Borrower and the Subsidiaries so long as the aggregate amount
invested, loaned or advanced pursuant to this paragraph (h) (determined
without regard to any write-downs or write-offs of such investments, loans and
advances) does not exceed $5,000,000 in the aggregate.


 


SECTION 6.05. Mergers, 
Consolidations, Sales of Assets and Acquisitions. (a) Merge
into or consolidate with any other person, or permit any other person to merge
into or consolidate with it, or sell, transfer, lease or otherwise dispose of
(in one transaction or in a series of transactions) all or substantially all
the assets (whether now owned or hereafter acquired) of the Borrower or less
than all the Equity Interests of any Subsidiary, or purchase, lease or
otherwise acquire (in one transaction or a series of transactions) all or any
substantial part of the assets of any other person, except that (i) the
Borrower and any Subsidiary may purchase and sell inventory in the ordinary
course of business and (ii) if at the time thereof and
immediately after giving effect thereto no Event of Default or Default shall
have occurred and be continuing (u) any wholly owned Subsidiary may merge
into the Borrower in a transaction in which the Borrower is the surviving
corporation, (v) Holdings may merge, liquidate, reorganize or otherwise be restructured into a
newly-formed Loan Party in a transaction the purpose of which is to re-organize
Holdings as a corporation; provided that
(1) such transaction (or series of transactions) does not result in a
material increase in the Tax obligations payable in cash (on a consolidated
basis) for Holdings, the Borrower, each Subsidiary of the Borrower and the
holders of Equity Interests in Holdings and (2) immediately following such
transaction, Holdings is in compliance with all requirements of the Guarantee
and Collateral Agreement and has satisfied its obligations under Section 5.11
(including the execution of any further documents, financing statements,
agreements and instruments, and the taking of all other actions, that may be
reasonably requested by the Required Lenders, the Administrative Agent or the
Collateral Agent), (w) any wholly owned Subsidiary may merge into or
consolidate with any other wholly owned Subsidiary in a transaction in which
the surviving entity is a wholly owned Subsidiary and no person other than the
Borrower or a wholly owned Subsidiary receives any consideration (provided that if any party to any such
transaction is a Loan Party, the surviving entity of such transaction shall be
a Loan Party) (x) the Borrower and the Subsidiaries may make Permitted
Acquisitions and (y) any Inactive Subsidiary of the Borrower may be
dissolved or liquidated.


 


80

















 


(b) Make any Asset Sale otherwise permitted under
paragraph (a) above unless (i) such Asset Sale is for consideration
at least 75% of which is cash (ii) such consideration is at
least equal to the fair market value of the assets being sold, transferred,
leased or disposed of and (iii) the fair market value of all assets sold,
transferred, leased or disposed of pursuant to this paragraph (b) shall
not exceed (x) $10,000,000 in any fiscal year or (y) $50,000,000 in
the aggregate.


 


SECTION 6.06.
Restricted Payments; Restrictive
Agreements.    (a) Declare
or make, or agree to declare or make, directly or indirectly, any Restricted
Payment (including pursuant to any Synthetic Purchase Agreement), or incur any
obligation (contingent or otherwise) to do so; provided,
however, that (i) any Subsidiary may declare and pay dividends
or make other distributions ratably to its equity holders, (ii) so long as
no Event of Default or Default shall have occurred and be continuing or would
result therefrom, the Borrower may, or the Borrower may make distributions to
Holdings so that Holdings may, repurchase its Equity Interests owned by
employees of Holdings, the Borrower or the Subsidiaries or make payments to
employees of Holdings, the Borrower or the Subsidiaries upon termination of
employment in connection with the exercise of stock options, stock appreciation
rights or similar equity incentives or equity based incentives pursuant to
management incentive plans or in connection with the death or disability of
such employees in an aggregate amount not to exceed $2,000,000 in any fiscal
year, (iii) the Borrower may make Restricted Payments to Holdings (x) in
an amount not to exceed $500,000 in any fiscal year, to the extent necessary to
pay general corporate and overhead expenses incurred by Holdings in the
ordinary course of business and (y) if Borrower is a member of a
consolidated, combined or unitary group of which Borrower is not the common
parent, in an amount necessary to pay the Tax liabilities of the common parent
(the “Common Parent”) of the consolidated, combined or unitary
group of which Borrower is not the common parent directly attributable to (or
arising as a result of) the operations of the Borrower and the Subsidiaries; provided, however, that (A)  the amount of such dividends
shall not exceed the amount that the Borrower and the Subsidiaries would be
required to pay in respect of Federal, state and local taxes were the Borrower
and the Subsidiaries to pay such taxes as members of a consolidated, combined,
or unitary group of which Borrower is the common parent and (B) all
Restricted Payments made to Holdings pursuant to this clause (iii) are
used by Holdings to make Restricted Payments as specified in clause (iv) within
20 days of the receipt thereof and (iv) if Borrower is a member of a
consolidated, combined or unitary group of which Borrower is not the common
parent, then Holdings may make Restricted Payments to the Common Parent (x) in
an amount not to exceed $500,000 in any fiscal year, to the extent necessary to
pay general corporate and overhead expenses incurred by the Common Parent in
the ordinary course of business and (y) in an amount necessary to pay the
Tax liabilities of the Common Parent directly attributable to (or arising as a
result of) the operations of the Borrower and the Subsidiaries; provided, however, that (A) the amount
of such dividends shall not exceed the amount that the Borrower and the
Subsidiaries would be required to pay in respect of Federal, state and local
taxes were the Borrower and the Subsidiaries to pay such taxes as members of a
consolidated, combined or unitary group of which Borrower is the common parent
and (B) all Restricted Payments made to the Common Parent pursuant to this
clause (iv) are used by the Common Parent for the purposes specified
herein within 20 days of the receipt thereof.


 


81

















 


(b) Enter into, incur or permit to exist any
agreement or other arrangement that prohibits, restricts or imposes any
condition upon (i) the ability of Holdings, the Borrower or any Subsidiary
to create, incur or permit to exist any Lien upon any of its property or assets
to secure the Obligations, or (ii) the ability of any Subsidiary to pay
dividends or other distributions with respect to any of its Equity Interests or
to make or repay loans or advances to the Borrower or any other Subsidiary or
to Guarantee Indebtedness of the Borrower or any other Subsidiary; provided that (A) the foregoing shall
not apply to restrictions and conditions imposed by law or by any Loan Document
or any Second Lien Term Loan Document, (B) the foregoing shall not apply
to customary restrictions and conditions contained in agreements relating to
the sale of a Subsidiary pending such sale, provided
such restrictions and conditions apply only to the Subsidiary that
is to be sold and such sale is permitted hereunder, (C) the foregoing
shall not apply to restrictions and conditions imposed on any Foreign
Subsidiary by the terms of any Indebtedness of such Foreign Subsidiary
permitted to be incurred hereunder, (D) clause (i) of the foregoing shall
not apply to restrictions or conditions imposed by any agreement relating to
secured Indebtedness permitted by this Agreement if such restrictions or
conditions apply only to the property or assets securing such Indebtedness and (E) clause
(i) of the foregoing shall not apply to customary provisions in leases and
other contracts restricting the assignment thereof.


 


SECTION 6.07. Transactions with
Affiliates.  Except for
transactions between or among Loan Parties and transactions pursuant to the
Advisory Services and Monitoring Agreements as in effect as of the Closing
Date, sell or transfer any property or assets to, or purchase or acquire any
property or assets from, or otherwise engage in any other transactions with,
any of its Affiliates, except that the Borrower or any Subsidiary may engage in
any of the foregoing transactions in the ordinary course of business at prices
and on terms and conditions not less favorable to the Borrower or such
Subsidiary than could be obtained on an arm’s-length basis from unrelated third
parties.


 


SECTION 6.08. Business
of Holdings, Borrower and Subsidiaries  (a) With respect to Holdings,
engage in any business activities or have any assets or liabilities other than
its ownership of the Equity Interests of the Borrower and liabilities
incidental thereto, including its liabilities as a Guarantor pursuant to the
Guarantee and Collateral Agreement and its Guarantees of obligations under the
Second Lien Term Loan Documents.


 


(b) With respect to the Borrower and its Subsidiaries, engage at
any time in any business or business activity other than the business currently
conducted by it and business activities reasonably incidental thereto.


 


SECTION 6.09. Other
Indebtedness and
Agreements. (a) Permit (i) any waiver,
supplement, modification, amendment, termination or release of any indenture,
instrument or agreement pursuant to which the Second Lien Term Loan or any
subordinated Material Indebtedness of Holdings, the Borrower or any of the
Subsidiaries is outstanding if the effect of such waiver, supplement,
modification, amendment, termination or release would materially increase the
obligations of the obligor or confer additional material rights on the holder
of such Indebtedness in a manner adverse to


 


82

















 


Holdings, the
Borrower, any of the Subsidiaries or the Lenders; provided that the Second Lien Term Loan Documents may be
amended in accordance with the Intercreditor Agreement, or (ii) any
waiver, supplement, modification or amendment of its certificate of
incorporation, by-laws, operating, management or partnership agreement or other
organizational documents to the extent any such waiver, supplement,
modification or amendment would be adverse to the Lenders in any material
respect.


 


(b) (i) Make any distribution, whether in
cash, property, securities or a combination thereof, other than regular
scheduled payments of principal and interest as and when due (to the extent not
prohibited by applicable subordination provisions), in respect of, or pay, or
commit to pay, or directly or indirectly (including pursuant to any Synthetic
Purchase Agreement) redeem, repurchase, retire or otherwise acquire for
consideration, or set apart any sum for the aforesaid purposes any Indebtedness
(other than the Loans), other than in respect of Indebtedness under the Second
Lien Term Loan Agreement, with Declined Proceeds applied in accordance with the
mandatory prepayment provisions of the Second Lien Term Loan Agreement as
contemplated by Section 2.13(h), or in the case of Declined Proceeds
that are retained by the Borrower after having been declined by (x) the
Lenders pursuant to Section 2.13(f) and (y) the lenders under
the Second Lien Term Loan Agreement pursuant to the mandatory prepayment
provisions thereof, with such Declined Proceeds in accordance with the
voluntary prepayment provisions of the Second Lien Term Loan Agreement, or (ii) pay
in cash any amount in respect of any Indebtedness or preferred Equity Interests
that may at the obligor’s option be paid in kind or in other securities (other
than the Second Lien Term Loans).


 


SECTION 6.10.
Capital Expenditures.  (a) Permit the aggregate amount of
Capital Expenditures made by the Borrower and the Subsidiaries in any period
set forth below to exceed the amount set forth below for such period:


 


	
  Period

  	
   

  	
  Amount

  	
   

  
	
  Closing Date -
  December 31, 2007

  	
   

  	
  $

  	
  15,000,000

  	
   

  
	
  January 1,
  2008 - December 31, 2008

  	
   

  	
  $

  	
  10,000,000

  	
   

  
	
  January 1,
  2009 - December 31, 2009

  	
   

  	
  $

  	
  12,000,000

  	
   

  
	
  January 1,
  2010 - December 31, 2010

  	
   

  	
  $

  	
  14,000,000

  	
   

  
	
  January 1,
  2011 - December 31, 2011

  	
   

  	
  $

  	
  15,000,000

  	
   

  
	
  January 1,
  2012 - December 31, 2012

  	
   

  	
  $

  	
  16,000,000

  	
   

  
	
  January 1,
  2013 - December 31, 2013

  	
   

  	
  $

  	
  17,000,000

  	
   

  
	
  January 1,
  2014 - Term Loan Maturity

  	
   

  	
  $

  	
  18,000,000

  	
   

  
	
  Date

  	
   

  	
   

  	
   

  



 


If, in any fiscal year, the Consolidated EBITDA exceeds the Baseline
EBITDA for such fiscal year, the amount of permitted Capital Expenditures set
forth above in respect of such fiscal year shall be increased (but not
decreased) by 40% of the excess of (i) the Consolidated EBITDA for such
fiscal year over (ii) the Baseline EBITDA for such fiscal year.


 


83














 


Any unused amount of Capital Expenditures
permitted to be made during each fiscal year may be carried forward to, and
made, at any time during the next succeeding two fiscal years; provided that, for purposes of this
sentence, Capital Expenditures made in any fiscal year shall be deemed to use
the amount permitted to be made during such fiscal year set forth above before
using the amount carried forward to such fiscal year.


 


(b) Notwithstanding subsection (a) above,
the Borrower and its Subsidiaries may make Capital Expenditures with the Net
Cash Proceeds of (A) Specified Equity Issuances by Holdings, the Borrower
or any of their respective subsidiaries permitted hereunder or (B) any
Asset Sale, or any sale of used, worn out or surplus equipment, in each case to
the extent such Net Cash Proceeds are not required to be applied to prepay
Loans, or cash collateralize, Letters of Credit, hereunder or prepay loans
under the Second Lien Term Loan Agreement.


 


SECTION 6.11.  Interest Coverage Ratio.  Permit the Interest Coverage Ratio for
any period of four consecutive fiscal quarters, in each case taken as one
accounting period, ending on a date or during any period set forth below to be
less than the ratio set forth opposite such date or period below:


 


	
  Date or Period

  	
   

  	
  Ratio

  
	
  September 30, 2007

  	
   

  	
  1.35 to 1.00

  
	
   

  	
   

  	
   

  
	
  December 31, 2007

  	
   

  	
  1.35 to 1.00

  
	
   

  	
   

  	
   

  
	
  March 31, 2008

  	
   

  	
  1.35 to 1.00

  
	
   

  	
   

  	
   

  
	
  June 30, 2008

  	
   

  	
  1.35 to 1.00

  
	
   

  	
   

  	
   

  
	
  September 30, 2008

  	
   

  	
  1.40 to 1.00

  
	
   

  	
   

  	
   

  
	
  December 31, 2008

  	
   

  	
  1.50 to 1.00

  
	
   

  	
   

  	
   

  
	
  March 31, 2009

  	
   

  	
  1.65 to 1.00

  
	
   

  	
   

  	
   

  
	
  June 30, 2009

  	
   

  	
  1.65 to 1.00

  
	
   

  	
   

  	
   

  
	
  September 30, 2009

  	
   

  	
  1.65 to 1.00

  
	
   

  	
   

  	
   

  
	
  December 31, 2009

  	
   

  	
  1.65 to 1.00

  
	
   

  	
   

  	
   

  
	
  March 31, 2010

  	
   

  	
  1.80 to 1.00

  
	
   

  	
   

  	
   

  
	
  June 30, 2010

  	
   

  	
  1.80 to 1.00

  
	
   

  	
   

  	
   

  
	
  September 30, 2010

  	
   

  	
  1.80 to 1.00

  
	
   

  	
   

  	
   

  
	
  December 31, 2010

  	
   

  	
  1.80 to 1.00

  
	
   

  	
   

  	
   

  
	
  March 31, 2011

  	
   

  	
  2.00 to 1.00

  
	
   

  	
   

  	
   

  
	
  June 30, 2011

  	
   

  	
  2.00 to 1.00

  
	
   

  	
   

  	
   

  
	
  September 30, 2011

  	
   

  	
  2.00 to 1.00

  
	
   

  	
   

  	
   

  
	
  December 31, 2011

  	
   

  	
  2.00 to 1.00

  
	
   

  	
   

  	
   

  
	
  March 31, 2012

  	
   

  	
  2.00 to 1.00

  



 


84

















 


SECTION 6.12. First Lien Debt Ratio.   Permit the First Lien Debt Ratio for any
period of four consecutive fiscal quarters, in each case taken as one
accounting period, ending on any date or during any period set forth below to
be greater than the ratio set forth opposite such date or period below:


 


	
  Date or Period

  	
   

  	
  Ratio

  
	
  September 30, 2007

  	
   

  	
  5.65 to 1.00

  
	
   

  	
   

  	
   

  
	
  December 31, 2007

  	
   

  	
  5.65 to 1.00

  
	
   

  	
   

  	
   

  
	
  March 31, 2008

  	
   

  	
  5.65  to
  1.00

  
	
   

  	
   

  	
   

  
	
  June 30, 2008

  	
   

  	
  5.65 to 1.00

  
	
   

  	
   

  	
   

  
	
  September 30, 2008

  	
   

  	
  5.25 to 1.00

  
	
   

  	
   

  	
   

  
	
  December 31, 2008

  	
   

  	
  5.00 to 1.00

  
	
   

  	
   

  	
   

  
	
  March 31, 2009

  	
   

  	
  4.25 to 1.00

  
	
   

  	
   

  	
   

  
	
  June 30, 2009

  	
   

  	
  4.25 to 1.00

  
	
   

  	
   

  	
   

  
	
  September 30, 2009

  	
   

  	
  4.25 to 1.00

  
	
   

  	
   

  	
   

  
	
  December 31, 2009

  	
   

  	
  4.25 to 1.00

  
	
   

  	
   

  	
   

  
	
  March 31, 2010

  	
   

  	
  4.00 to 1.00

  
	
   

  	
   

  	
   

  
	
  June 30, 2010

  	
   

  	
  4.00 to 1.00

  
	
   

  	
   

  	
   

  
	
  September 30, 2010

  	
   

  	
  4.00 to 1.00

  
	
   

  	
   

  	
   

  
	
  December 31, 2010

  	
   

  	
  4.00 to 1.00

  
	
   

  	
   

  	
   

  
	
  March 31, 2011

  	
   

  	
  3.00 to 1.00

  
	
   

  	
   

  	
   

  
	
  June 30, 2011

  	
   

  	
  3.00 to 1.00

  
	
   

  	
   

  	
   

  
	
  September 30, 2011

  	
   

  	
  3.00 to 1.00

  
	
   

  	
   

  	
   

  
	
  December 31, 2011

  	
   

  	
  3.00 to 1.00

  
	
   

  	
   

  	
   

  
	
  March 31, 2012

  	
   

  	
  3 00 to 1.00

  



 


SECTION 6.13. Maximum Total Leverage Ratio.  Permit the Total Leverage Ratio at any
time during a period set forth below to be greater than the ratio set forth
opposite such period below:


 


85

















 


	
  Period

  	
   

  	
  Ratio

  
	
  September 30, 2007

  	
   

  	
  7.75 to 1.00

  
	
   

  	
   

  	
   

  
	
  December 31, 2007

  	
   

  	
  7.75 to 1.00

  
	
   

  	
   

  	
   

  
	
  March 31, 2008

  	
   

  	
  7.75 to 1.00

  
	
   

  	
   

  	
   

  
	
  June 30, 2008

  	
   

  	
  7.75 to 1.00

  
	
   

  	
   

  	
   

  
	
  September 30, 2008

  	
   

  	
  7.50 to 1.00

  
	
   

  	
   

  	
   

  
	
  December 31, 2008

  	
   

  	
  7.00 to 1.00

  
	
   

  	
   

  	
   

  
	
  March 31, 2009

  	
   

  	
  6.25 to 1.00

  
	
   

  	
   

  	
   

  
	
  June 30, 2009

  	
   

  	
  6.25 to 1.00

  
	
   

  	
   

  	
   

  
	
  September 30, 2009

  	
   

  	
  6.25 to 1.00

  
	
   

  	
   

  	
   

  
	
  December 31, 2009

  	
   

  	
  6.25 to 1.00

  
	
   

  	
   

  	
   

  
	
  March 31, 2010

  	
   

  	
  6.00 to 1.00

  
	
   

  	
   

  	
   

  
	
  June 30, 2010

  	
   

  	
  6.00 to 1.00

  
	
   

  	
   

  	
   

  
	
  September 30, 2010

  	
   

  	
  6.00 to 1.00

  
	
   

  	
   

  	
   

  
	
  December 31, 2010

  	
   

  	
  6.00 to 1.00

  
	
   

  	
   

  	
   

  
	
  March 31, 2011

  	
   

  	
  5.00 to 1.00

  
	
   

  	
   

  	
   

  
	
  June 30, 2011

  	
   

  	
  5.00 to 1.00

  
	
   

  	
   

  	
   

  
	
  September 30, 2011

  	
   

  	
  5.00 to 1.00

  
	
   

  	
   

  	
   

  
	
  December 31, 2011

  	
   

  	
  5.00 to 1.00

  
	
   

  	
   

  	
   

  
	
  March 31, 2012

  	
   

  	
  5.00 to 1.00

  



 


SECTION 6.14. Fiscal Year.    With respect to Holdings and the
Borrower, change their fiscal year-end to a date other than December 31.


 


SECTION 6.15. Certain Equity Securities.   Issue
any Equity Interest that is not Qualified Capital Stock.


 


ARTICLE VII


 


Events of Default


 


In case of the happening of any of the
following events (“Events of Default”):


 


(a) any representation or
warranty made or deemed made in or in connection with any Loan Document or the
borrowings or issuances of Letters of Credit hereunder, or any representation,
warranty, statement or information contained in any report, certificate,
financial statement or other instrument furnished in connection with or
pursuant to any Loan Document, shall prove to


 


86

















 


have been false or misleading in any material
respect when so made, deemed made or furnished;


 


(b) default
shall be made in the payment of any principal of any Loan or the reimbursement
with respect to any L/C Disbursement when and as the same shall become due and
payable, whether at the due date thereof or at a date fixed for prepayment
thereof or by acceleration thereof or otherwise;


 


(c) default
shall be made in the payment of any interest on any Loan or any Fee or L/C
Disbursement or any other amount (other than an amount referred to in (b) above)
due under any Loan Document, when and as the same shall become due and payable,
and such default shall continue unremedied for a period of three Business Days;


 


(d) default
shall be made in the due observance or performance by Holdings, the Borrower or
any Subsidiary of any covenant, condition or agreement contained in Section 5.01(a),
5.05(a), 5.05(d) or 5.08 or in Article VI;


 


(e) default
shall be made in the due observance or performance by Holdings, the Borrower or
any Subsidiary of any covenant, condition or agreement contained in any Loan
Document (other than those specified in (b), (c) or (d) above) and
such default shall continue unremedied for a period of 30 days after notice
thereof from the Administrative Agent or the Required Lenders to the Borrower;


 


(f) (i) Holdings,
the Borrower or any Subsidiary shall fail to pay any principal, interest or
other amount due in respect of any Material Indebtedness, when and as the same
shall become due and payable after giving effect to any grace periods
applicable thereto or (ii) any other event or condition occurs that
results in any Material Indebtedness becoming due prior to its scheduled
maturity or that enables or permits (with or without the giving of notice, the
lapse of time or both) the holder or holders of any Material Indebtedness or
any trustee or agent on its or their behalf to cause any Material Indebtedness
to become due, or to require the prepayment, repurchase, redemption or
defeasance thereof, prior to its scheduled maturity or that results in the
termination or permits any counterparty to terminate any Hedging Agreement the
obligations under which constitute Material Indebtedness; provided that this clause (ii) shall
not apply to secured Indebtedness that becomes due as a result of the voluntary
sale or transfer of the property or assets securing such Indebtedness or to
mandatory prepayments of Second Lien Term Loans with Declined Proceeds as
contemplated by Section 2.13(f);


 


(g) an
involuntary proceeding shall be commenced or an involuntary petition shall be
filed in a court of competent jurisdiction seeking (i) relief in respect
of Holdings, the Borrower or any Material Subsidiary (or any group of
Subsidiaries that, when taken together, would constitute a Material Subsidiary),
or of a substantial part of the property or assets of Holdings, the Borrower or
a


 


87

















 


Material Subsidiary (or any group of
Subsidiaries that, when taken together, would constitute a Material
Subsidiary), under Title 11 of the United States Code, as now constituted or
hereafter amended, or any other Federal, state or foreign bankruptcy,
insolvency, receivership or similar law, (ii) the appointment of a
receiver, trustee, custodian, sequestrator, conservator or similar official for
Holdings, the Borrower or any Material Subsidiary (or any group of Subsidiaries
that, when taken together, would constitute a Material Subsidiary) or for a
substantial part of the property or assets of Holdings, the Borrower or a
Material Subsidiary (or any group of Subsidiaries that, when taken together,
would constitute a Material Subsidiary) or (iii) the winding-up or
liquidation of Holdings, the Borrower or any Material Subsidiary (or any group
of Subsidiaries that, when taken together, would constitute a Material
Subsidiary); and such proceeding or petition shall continue undismissed for 60
days or an order or decree approving or ordering any of the foregoing shall be
entered;


 


(h) Holdings,
the Borrower or any Subsidiary shall (i) voluntarily commence any
proceeding or file any petition seeking relief under Title 11 of the United
States Code, as now constituted or hereafter amended, or any other Federal,
state or foreign bankruptcy, insolvency, receivership or similar law, (ii) consent
to the institution of, or fail to contest in a timely and appropriate manner,
any proceeding or the filing of any petition described in (g) above, (iii) apply
for or consent to the appointment of a receiver, trustee, custodian,
sequestrator, conservator or similar official for Holdings, the Borrower or any
Subsidiary or for a substantial part of the property or assets of Holdings, the
Borrower or any Subsidiary, (iv) file an answer admitting the material
allegations of a petition filed against it in any such proceeding, (v) make
a general assignment for the benefit of creditors, (vi) become unable,
admit in writing its inability or fail generally to pay its debts as they
become due or (vii) take any action for the purpose of effecting any of
the foregoing;


 


(i) one or more judgments
shall be rendered against Holdings, the Borrower, any Subsidiary or any combination
thereof and the same shall remain undischarged for a period of 30 consecutive
days during which execution shall not be effectively stayed, or any action
shall be legally taken by a judgment creditor to levy upon assets or properties
of Holdings, the Borrower or any Subsidiary to enforce any such judgment and
such judgment either (i) is for the payment of money in an aggregate
amount in excess of $5,000,000 or (ii) is for injunctive relief and could
reasonably be expected to result in a Material Adverse Effect;


 


(j) an ERISA Event shall
have occurred that, when taken together with all other such ERISA Events, could
reasonably be expected to result in actual liability to Holdings, the Borrower
or any Subsidiary (or any combination thereof), including directly or
indirectly through their ERISA Affiliates, in an aggregate amount exceeding
$5,000,000;


 


(k) any Guarantee under
the Guarantee and Collateral Agreement for any reason shall cease to be in full
force and effect (other than in accordance with its


 


88

















 


terms), or any Guarantor shall deny in
writing that it has any further liability under the Guarantee and Collateral
Agreement (other than as a result of the discharge of such Guarantor in
accordance with the terms of the Loan Documents);


 


(1) any security interest
purported to be created by any Security Document shall cease to be, or shall be
asserted by the Borrower or any other Loan Party not to be, a valid, perfected,
first priority (except as otherwise expressly provided in this Agreement or
such Security Document) security interest in the securities, assets or
properties covered thereby, except to the extent that any such loss of
perfection or priority results from the failure of the Collateral Agent to
maintain possession of certificates representing securities pledged under the
Guarantee and Collateral Agreement and except to the extent that such loss is
covered by a lender’s title insurance policy and the related insurer promptly
after such loss shall have acknowledged in writing that such loss is covered by
such title insurance policy;


 


(m) the Intercreditor
Agreement shall, in whole or in part, cease to be effective or cease to be
legally valid, binding and enforceable against any party thereto (or against
any person on whose behalf any such party makes any covenants or agreements
therein), or otherwise not be effective to create the rights and obligations
purported to be created thereunder unless the same results directly from the
action or inaction of the Collateral Agent; or


 


(n) there shall have
occurred a Change in Control;


 


then, and in every such event (other than an
event with respect to Holdings or the Borrower described in paragraph (g) or
(h) above), and at any time thereafter during the continuance of such
event, the Administrative Agent may, and at the request of the Required
Lenders shall, by notice to the Borrower, take either or both of the following
actions, at the same or different times: (i) terminate
forthwith the Commitments and (ii) declare the Loans then outstanding to
be forthwith due and payable in whole or in part, whereupon the principal
of the Loans so declared to be due and payable, together with accrued
interest thereon and any unpaid accrued Fees and all other liabilities of the
Borrower accrued hereunder and under any other Loan Document, shall become
forthwith due and payable, without presentment, demand, protest or any other notice
of any kind, all of which are hereby expressly waived by the Borrower, anything
contained herein or in any other Loan Document to the contrary notwithstanding;
and in any event with respect to Holdings or the Borrower described in
paragraph (g) or (h) above, the Commitments shall automatically
terminate and the principal of the Loans then outstanding, together with
accrued interest thereon and any unpaid accrued Fees and all other liabilities
of the Borrower accrued hereunder and under any other Loan Document, shall
automatically become due and payable, without presentment, demand, protest or any
other notice of any kind, all of which are hereby expressly waived by the
Borrower, anything contained herein or in any other Loan Document to the
contrary notwithstanding.


 


89

















 


Notwithstanding anything to the contrary
contained in the foregoing provisions of this Article VII, in the event
that the Borrower fails to comply with Section 6.11, 6.12 or 6.13, until
the expiration of the 10th day subsequent to the date the certificate
calculating such compliance is required to be delivered pursuant to Section 5.04(c),
the Borrower shall have the right to issue common equity for cash or otherwise
receive cash contributions to the capital of the Borrower (collectively, the “Cure
Right”),  and
upon receipt by the Borrower of such cash (the “Cure Amount”) pursuant to the exercise of the
Borrower of such Cure Right the applicable covenants shall be recalculated
giving effect to the following pro forma adjustments:


 


(i) Consolidated EBITDA
for the immediately preceding fiscal quarter shall be increased, solely for the
purpose of measuring compliance with Sections 6.11, 6.12 and 6.13 for such
fiscal quarter and each period thereafter in which the Consolidated EBITDA for
such fiscal quarter is contained, and not for any other purpose under this
Agreement, by an amount equal to the Cure Amount; and


 


(ii) if, after giving
effect to the foregoing recalculations, the Borrower shall then be in
compliance with Sections 6.11, 6.12 and 6.13 as of the relevant date of
determination with the same effect as though there had been no failure to
comply therewith at such date, then the applicable breach or default of the
covenants set forth in Sections 6.11, 6.12 and 6.13 that had occurred shall be
deemed cured for all purposes of this Agreement as fully as if such breach or
default had never occurred.


 


Notwithstanding anything herein to the
contrary, (A) in each four quarter period there shall be a period of at
least two fiscal quarters in which the Cure Right is not exercised, (B) in
each eight quarter period there shall be a period of at least four fiscal
quarters in which the Cure Right is not exercised, (C) the amount of any
Cure Amount shall be no greater than the amount required to cause the Borrower
to be in compliance with Sections 6.11, 6.12 and 6.13 and (D) all Cure
Amounts shall be disregarded for all other purposes under this Agreement,
including any baskets in Article VI and the definitions of Applicable
Margin and Required Prepayment Percentage.


 


ARTICLE VIII


 


The Administrative
Agent and the Collateral Agent


 


Each of the
Lenders and the Issuing Bank hereby irrevocably appoints the Administrative
Agent and the Collateral Agent (for purposes of this Article VIII, the
Administrative Agent and the Collateral Agent are referred to collectively as
the “Agents”)  its
agent and authorizes the Agents to take such actions on its behalf and to
exercise such powers as are delegated to such Agent by the terms of the Loan
Documents, together with such actions and powers as are reasonably incidental
thereto. Without limiting the generality of the foregoing, the Agents are
hereby expressly authorized to execute any and all documents (including
releases) with respect to the Collateral and the rights of the Secured Parties
with respect thereto, as contemplated by and in accordance with the provisions
of this Agreement and the Security Documents.


 


90

















 


The Lenders acknowledge and agree that the
Administrative Agent shall also act, subject to and in accordance with the
terms of the Intercreditor Agreement, as the administrative agent and
collateral agent for the lenders under the Second Lien Term Loan Agreement.


 


The bank serving as the Administrative Agent
and/or the Collateral Agent hereunder shall have the same rights and powers in
its capacity as a Lender as any other Lender and may exercise the same as
though it were not an Agent, and such bank and its Affiliates may accept
deposits from, lend money to and generally engage in any kind of business with
Holdings, the Borrower or any Subsidiary or other Affiliate thereof as if it
were not an Agent hereunder.


 


Neither Agent shall have any duties or
obligations except those expressly set forth in the Loan Documents. Without
limiting the generality of the foregoing, (a) neither Agent shall be
subject to any fiduciary or other implied duties, regardless of whether a
Default has occurred and is continuing, (b) neither Agent shall have any
duty to take any discretionary action or exercise any discretionary powers,
except discretionary rights and powers expressly contemplated hereby that such
Agent is instructed in writing to exercise by the Required Lenders (or such
other number or percentage of the Lenders as shall be necessary under the
circumstances as provided in Section 9.08), and (c) except as
expressly set forth in the Loan Documents, neither Agent shall have any duty to
disclose, nor shall it be liable for the failure to disclose, any information
relating to Holdings, the Borrower or any of the Subsidiaries that is
communicated to or obtained by the bank serving as Administrative Agent and/or
Collateral Agent or any of its Affiliates in any capacity. Neither Agent shall
be liable for any action taken or not taken by it with the consent or at the
request of the Required Lenders (or such other number or percentage of the
Lenders as shall be necessary under the circumstances as provided in Section 9.08)
or in the absence of its own gross negligence or willful misconduct. Neither
Agent shall be deemed to have knowledge of any Default unless and until written
notice thereof is given to such Agent by Holdings, the Borrower or a Lender,
and neither Agent shall be responsible for or have any duty to ascertain or
inquire into (i) any statement, warranty or representation made in or in
connection with any Loan Document, (ii) the contents of any certificate,
report or other document delivered thereunder or in connection therewith, (iii) the
performance or observance of any of the covenants, agreements or other terms or
conditions set forth in any Loan Document, (iv) the validity,
enforceability, effectiveness or genuineness of any Loan Document or any other
agreement, instrument or document, or (v) the satisfaction of any
condition set forth in Article IV or elsewhere in any Loan Document, other
than to confirm receipt of items expressly required to be delivered to such
Agent.


 


Each Agent shall be entitled to rely upon,
and shall not incur any liability for relying upon, any notice, request,
certificate, consent, statement, instrument, document or other writing believed
by it to be genuine and to have been signed or sent by the proper person. Each
Agent may also rely upon any statement made to it orally or by telephone and
believed by it to have been made by the proper person, and shall not incur any
liability for relying thereon. Each Agent may consult with legal counsel (who
may be counsel for the Borrower), independent accountants and other experts
selected by it, and


 


91

















 


shall not be liable for any action taken or
not taken by it in accordance with the advice of any such counsel, accountants
or experts.


 


Each Agent may
perform any and all its duties and exercise its rights and powers by or through
any one or more sub-agents appointed by it. Each Agent and any such sub-agent
may perform any and all its duties and exercise its rights and powers by or
through their respective Related Parties. The exculpatory provisions of the
preceding paragraphs shall apply to any such sub-agent and to the Related
Parties of each Agent and any such sub-agent, and shall apply to their
respective activities in connection with the syndication of the Credit Facilities as well as activities
as Agent.


 


Subject to the appointment and acceptance of
a successor Agent as provided below, either Agent may resign at any time by
notifying the Lenders, the Issuing Bank and the Borrower. Upon any such
resignation, the Required Lenders shall have the right, with the consent of the
Borrower (not to be unreasonably withheld or delayed), unless a default of
payment or bankruptcy is continuing, in which case no such consent shall be
required, to appoint a successor, which shall be a bank with an office in the
United States or an Affiliate of such bank with an office in the United States.
If no successor shall have been so appointed by the Required Lenders and shall
have accepted such appointment within 30 days after the retiring Agent gives
notice of its resignation (including, for greater certainty, due to the failure
of the Borrower to consent to such appointment), then the retiring Agent may,
on behalf of the Lenders and the Issuing Bank, appoint a successor Agent which
shall be a bank with an office in New York, New York, or an Affiliate of any
such bank. Upon the acceptance of its appointment as Agent hereunder by a
successor, such successor shall succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Agent, and the retiring
Agent shall be discharged from its duties and obligations hereunder. The fees
payable by the Borrower to a successor Agent shall be the same as those payable
to its predecessor unless otherwise agreed between the Borrower and such
successor. After an Agent’s resignation hereunder, the provisions of this Article and
Section 9.05 shall continue in effect for the benefit of such retiring
Agent, its sub-agents and their respective Related Parties in respect of any
actions taken or omitted to be taken by any of them while acting as Agent.


 


Each Lender
acknowledges that it has, independently and without reliance upon the Agents or
any other Lender and based on such documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Agreement. Each Lender also acknowledges that it will, independently and
without reliance upon the Agents or any other Lender and based on such
documents and information as it shall from time to time deem appropriate,
continue to make its own decisions in taking or not taking action under or
based upon this Agreement or any other Loan Document, any related agreement or
any document furnished hereunder or thereunder.


 


92

















 


ARTICLE IX


 


Miscellaneous


 


SECTION 9.01.
Notices.  Notices and other communications provided
for herein shall be in writing and shall be delivered by hand or nationally
recognized overnight courier service, mailed by certified or registered mail or
sent by fax, as follows:


 


(a)     if to the Borrower or Holdings, to it at 10
Water Street, Enfield, CT 06082-4899, Attention of Chief Financial Officer (Fax
No. (860) 749-9158); with a copy to STR Holdings LLC, c/o DLJ Merchant
Banking, Attention of Dan Gerwitz (Fax No. (860) 749-9158);


 


(b)    if to the Administrative Agent, to Credit
Suisse, Eleven Madison Avenue, New York, NY 10010, Attention of Matthew Carter
RDU-2 (Fax No. (212) 743-1842); and


 


(c)     if to a Lender, to it at its address (or
fax number) set forth on Schedule 2.01 or in the Assignment and Acceptance or
the Incremental Term Loan Assumption Agreement, as the case may be, pursuant to
which such Lender shall have become a party hereto.


 


All notices and other communications given to
any party hereto in accordance with the provisions of this Agreement shall be
deemed to have been given on the date of receipt if delivered by hand or
nationally recognized overnight courier service or sent by fax or on the date
five Business Days after dispatch by certified or registered mail if mailed, in
each case delivered, sent or mailed (properly addressed) to such party as
provided in this Section 9.01 or in accordance with the latest unrevoked
direction from such party given in accordance with this Section 9.01. As
agreed to among Holdings, the Borrower, the Administrative Agent and the
applicable Lenders from time to time, notices and other communications may also
be delivered by e-mail to the e-mail address of a representative of the
applicable person provided from time to time by such person so long as a copy
of such notice or other communication is also sent by one of the other methods
set forth above; provided, however, that
notices given by the Borrower to the Administrative Agent pursuant to Article II
may not be delivered by email unless otherwise agreed to by the Administrative
Agent on a case by case basis.


 


SECTION 9.02. Survival of Agreement. All covenants, agreements,
representations and warranties made by the Borrower or Holdings herein 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 the Issuing Bank and shall survive
the making by the Lenders of the Loans and the issuance of Letters of Credit by
the Issuing Bank, regardless of any investigation made by the Lenders or the
Issuing Bank or on their behalf, 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 this Agreement or any other Loan Document is
outstanding and unpaid or any Letter of Credit is outstanding (unless cash


 


93

















 


collateralized on terms reasonably acceptable to the Administrative
Agent and the Issuing Bank) and so long as the Commitments have not been
terminated. The provisions of Sections 2.14, 2.16, 2.20, 9.05 and 9.18 shall
remain operative and in full force and effect regardless of the expiration of
the term of this Agreement, the consummation of the transactions contemplated
hereby, the repayment of any of the Loans, the expiration of the Commitments,
the expiration of any Letter of Credit, 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 Administrative Agent, the Collateral
Agent, any Lender or the Issuing Bank.


 


SECTION 9.03.
Binding Effect.  This Agreement shall become effective
when it shall have been executed by the Borrower, Holdings and the
Administrative Agent and when the Administrative Agent shall have received
counterparts hereof which, when taken together, bear the signatures of each of
the other parties hereto.


 


SECTION 9.04. Successors and Assigns. (a) 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 the Borrower,
Holdings, the Administrative Agent, the Collateral Agent, the Issuing Bank or
the Lenders that are contained in this Agreement shall bind and inure to the
benefit of their respective successors and assigns.


 


(b) Each
Lender may assign to one or more Eligible Assignees all or a portion of its
interests, rights and obligations under this Agreement (including all or a
portion of its Commitment and the Loans at the time owing to it), with notice
to the Borrower delivered from time to time and the prior written consent of
the Administrative Agent (not to be unreasonably withheld or delayed); provided, however, that (i) in the
case of an assignment of a Revolving Credit Commitment, each of the Borrower,
the Issuing Bank and the Swingline Lender must also give its prior written
consent to such assignment (which consent shall not be unreasonably withheld or
delayed) (provided,  that
the consent of the Borrower shall not be required to any such assignment made (1) to
another Lender or an Affiliate or Related Fund of a Lender, (2) after the
occurrence and during the continuance of an Event of Default under paragraphs
(b), (c), (g) or (h) of Article VII or (3) of a Revolving
Commitment prior to a Successful Syndication of the Revolving Facility (as
defined in the Fee Letter), (ii) the amount of the Commitment or Loans of
the assigning Lender subject to each such assignment (determined as of the date
the Assignment and Acceptance with respect to such assignment is delivered to
the Administrative Agent) shall be in an integral multiple of, and not less
than, $1,000,000 (or, if less, the entire remaining amount of such Lender’s
Commitment or Loans of the relevant Class), (iii) the parties to each such
assignment shall execute and deliver to the Administrative Agent an Assignment
and Acceptance via an electronic settlement system acceptable to the
Administrative Agent (or, if previously agreed with the Administrative Agent,
manually), and shall pay to the Administrative Agent a processing and
recordation fee of $3,500 (which fee may be waived or reduced in the sole
discretion of the Administrative Agent), and (iv) the assignee, if it
shall not be a Lender, shall deliver to the Administrative Agent an
Administrative Questionnaire and all applicable tax forms. Upon acceptance and
recording pursuant to paragraph (e) of this Section 9.04, from and


 


94

















 


after the effective date specified in each Assignment and Acceptance, (A) the
assignee thereunder shall be a party hereto and, to the extent of the interest
assigned by such Assignment and Acceptance, have the rights and obligations of
a Lender under this Agreement and (B) the assigning Lender thereunder
shall, to the extent of the interest assigned by such Assignment and
Acceptance, be released from its obligations under this Agreement (and, in the
case of an Assignment and Acceptance covering all or the remaining portion of
an assigning Lender’s rights and obligations under this Agreement, such Lender
shall cease to be a party hereto but shall continue to be entitled to the
benefits of Sections 2.14, 2.16, 2.20 and 9.05, as well as to any Fees accrued
for its account and not yet paid).


 


(c)     By executing and delivering an Assignment and Acceptance, the
assigning Lender thereunder and the assignee thereunder shall be deemed to
confirm to and agree with each other and the other parties hereto as follows: (i) such
assigning Lender warrants that it is the legal and beneficial owner of the
interest being assigned thereby free and clear of any adverse claim and that
its Term Loan Commitment and Revolving Credit Commitment, and the outstanding
balances of its Term Loans and Revolving Loans, in each case without giving
effect to assignments thereof which have not become effective, are as set forth
in such Assignment and Acceptance; (ii) except as set forth in (i) above,
such assigning Lender makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations
made in or in connection with this Agreement, or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of this Agreement,
any other Loan Document or any other instrument or document furnished pursuant
hereto, or the financial condition of the Borrower or any Subsidiary or the
performance or observance by the Borrower or any Subsidiary of any of its
obligations under this Agreement, any other Loan Document or any other
instrument or document furnished pursuant hereto; (iii) such assignee
represents and warrants that it is an Eligible Assignee and is legally
authorized to enter into such Assignment and Acceptance; (iv) such
assignee confirms that it has received a copy of this Agreement, together with
copies of the most recent financial statements referred to in Section 3.05(a) or
delivered pursuant to Section 5.04, the Intercreditor Agreement and such
other documents and information as it has deemed appropriate to make its own
credit analysis and decision to enter into such Assignment and Acceptance; (v) such
assignee will independently and without reliance upon the Administrative Agent,
the Collateral Agent, such assigning Lender or any other Lender and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
this Agreement; (vi) such assignee agrees to be bound by the terms of the
Intercreditor Agreement; (vii) such assignee appoints and authorizes the
Administrative Agent and the Collateral Agent to take such action as agent on
its behalf and to exercise such powers under this Agreement as are delegated to
the Administrative Agent and the Collateral Agent, respectively, by the terms
hereof, together with such powers as are reasonably incidental thereto; and (viii) such
assignee agrees that it will perform in accordance with their terms all the
obligations which by the terms of this Agreement are required to be performed
by it as a Lender.


 


95














 


(d)   The
Administrative Agent, acting for this purpose as an agent of the Borrower,
shall maintain at one of its offices in The City of New York a copy of each
Assignment and Acceptance delivered to it and a register for the recordation of
the names and addresses of the Lenders and the Commitment of, and principal
amount of the Loans owing to, each Lender pursuant to the terms hereof from
time to time (the “Register”). The entries in the Register shall
be conclusive and the Borrower, the Administrative Agent, the Issuing Bank, the
Collateral Agent and the Lenders may treat each person whose name is recorded
in the Register pursuant to the terms hereof as a Lender hereunder for all
purposes of this Agreement, notwithstanding notice to the contrary. The Register
shall be available for inspection by the Borrower, the Issuing Bank, the
Collateral Agent and any Lender, at any reasonable time and from time to time
upon reasonable prior notice.


 


(e)   Upon
its receipt of, and consent to, a duly completed Assignment and Acceptance
executed by an assigning Lender and an assignee, an Administrative
Questionnaire completed in respect of the assignee (unless the assignee shall
already be a Lender hereunder), the processing and recordation fee referred to
in paragraph (b) above, if applicable, and the written consent of the
Administrative Agent and, if required, the Borrower, the Swingline Lender and
the Issuing Bank to such assignment and any applicable tax forms, the
Administrative Agent shall promptly (i) accept such Assignment and
Acceptance and (ii) record the information contained therein in the Register.
No assignment shall be effective unless it has been recorded in the Register as
provided in this paragraph (e).


 


(f)   Each Lender may without
the consent of the Borrower, the Swingline Lender, the Issuing Bank or the
Administrative Agent sell participations to one or more banks or other persons
in all or a portion of its rights and obligations under this Agreement
(including all or a portion of its Commitment and the Loans owing to it); provided, however, that (i) such
Lender’s obligations under this Agreement shall remain unchanged, (ii) such
Lender shall remain solely responsible to the other parties hereto for the
performance of such obligations, (iii) the participating banks or other
persons shall be entitled to the benefit of the cost protection provisions
contained in Sections 2.14, 2.16 and 2.20 to the same extent as if they were
Lenders (but, with respect to any particular participant, to no greater extent
than the Lender that sold the participation to such participant), (iv) the
Borrower, the Administrative Agent, the Issuing Bank and the Lenders shall
continue to deal solely and directly with such Lender in connection with such
Lender’s rights and obligations under this Agreement, and such Lender shall
retain the sole right to enforce the obligations of the Borrower relating to
the Loans or L/C Disbursements and to approve any amendment, modification or
waiver of any provision of this Agreement (other than amendments, modifications
or waivers decreasing any fees payable to such participating bank or person
hereunder or the amount of principal of or the rate at which interest is
payable on the Loans in which such participating bank or person has an
interest, extending any scheduled principal payment date or date fixed for the
payment of interest on the Loans in which such participating bank or person has
an interest, increasing or extending the Commitments in which such
participating bank or person has an interest or releasing all or substantially
all of the value of the Guarantees (other than in connection with the sale of
such Guarantor in a transaction permitted by


 


96

















 


Section 6.05) or all or substantially all of the Collateral) and (v) such
Lender, acting solely for this purpose as an agent of the Borrower, shall
maintain a register for the recordation of the names and addresses of the
participating bank or other person, and the Commitments of, and principal amounts
of and interest on the Loans and L/C Disbursements owing and paid to, such
participating banks pursuant to the terms hereof from time to time and the
amounts received by such Lender from the Borrower and whether such amounts
constitute principal, interest, fees or other amounts and each participating
bank’s share thereof.


 


(g)   Any
Lender or participant may, in connection with any assignment or participation
or proposed assignment or participation pursuant to this Section 9.04,
disclose to the assignee or participant or proposed assignee or participant any
information relating to the Borrower furnished to such Lender by or on behalf
of the Borrower; provided that,
prior to any such disclosure of information designated by the Borrower as
confidential, each such assignee or participant or proposed assignee or
participant shall execute an agreement whereby such assignee or participant
shall agree (subject to customary exceptions) to preserve the confidentiality
of such confidential information on terms no less restrictive than those
applicable to the Lenders pursuant to Section 9.16.


 


(h)   Any
Lender may at any time assign all or any portion of its rights under this
Agreement to secure extensions of credit to such Lender or in support of
obligations owed by such Lender; provided that
no such assignment shall release a Lender from any of its obligations hereunder
or substitute any such assignee for such Lender as a party hereto.


 


(i)   Notwithstanding
anything to the contrary contained herein, any Lender (a “Granting Lender”)  may grant to a
special purpose funding vehicle (an “SPC”),
identified as such in writing from time to time by the Granting Lender to the
Administrative Agent and the Borrower, the option to provide to the Borrower
all or any part of any Loan that such Granting Lender would otherwise be
obligated to make to the Borrower pursuant to this Agreement; provided that (i) nothing herein
shall constitute a commitment by any SPC to make any Loan and (ii) if
an SPC elects not to exercise such option or otherwise fails to provide all or
any part of such Loan, the Granting Lender shall be obligated to make such Loan
pursuant to the terms hereof. The making of a Loan by an SPC hereunder shall
utilize the Commitment of the Granting Lender to the same extent, and as if,
such Loan were made by such Granting Lender. Each party hereto hereby agrees
that no SPC shall be liable for any indemnity or similar payment obligation
under this Agreement (all liability for which shall remain with the Granting
Lender). In furtherance of the foregoing, each party hereto hereby agrees
(which agreement shall survive the termination of this Agreement) that, prior
to the date that is one year and one day after the payment in full of all
outstanding commercial paper or other senior indebtedness of any SPC, it will
not institute against, or join any other person in instituting against, such
SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings under the laws of the United States or any State thereof. In
addition, notwithstanding anything to the contrary contained in this Section 9.04,
any SPC may (i) with notice to but without the prior written consent of
the Borrower and the Administrative Agent and without paying any processing fee
therefor, assign all or a


 


97

















 


portion of its interests in any Loans to the Granting Lender or to any
financial institutions (consented to by the Borrower and Administrative
Agent) providing liquidity and/or credit support to or for the account of such
SPC to support the funding or maintenance of Loans and (ii) disclose on a
confidential basis any non-public information relating to its Loans to any
rating agency, commercial paper dealer or provider of any surety, guarantee or
credit or liquidity enhancement to such SPC.


 


(j)   Neither
Holdings nor the Borrower shall assign or delegate any of its rights or duties
hereunder without the prior written consent of the Administrative Agent, the
Issuing Bank and each Lender, and any attempted assignment without such consent
shall be null and void.


 


(k)   In the
event that any Revolving Credit Lender shall become a Defaulting Lender or
S&P, Moody’s and Thompson’s BankWatch (or InsuranceWatch Ratings Service,
in the case of Lenders that are insurance companies (or Best’s Insurance
Reports, if such insurance company is not rated by Insurance Watch Ratings
Service)) shall, after the date that any Lender becomes a Revolving Credit
Lender, downgrade the long-term certificate deposit ratings of such Lender, and
the resulting ratings shall be below BBB-, Baa3 and C (or BB, in the case of a
Lender that is an insurance company (or B, in the case of an insurance company
not rated by InsuranceWatch Ratings Service)) (or, with respect to any Revolving
Credit Lender that is not rated by any such ratings service or provider, the
Issuing Bank or the Swingline Lender shall have reasonably determined that
there has occurred a material adverse change in the financial condition of any
such Lender, or a material impairment of the ability of any such Lender to
perform its obligations hereunder, as compared to such condition or ability as
of the date that any such Lender became a Revolving Credit Lender) then the
Issuing Bank and the Swingline Lender shall have the right, but not the
obligation, at its own expense, upon notice to such Lender and the
Administrative Agent, to replace such Lender with an assignee (in accordance
with and subject to the restrictions contained in paragraph (b) above),
and such Lender hereby agrees to transfer and assign without recourse (in
accordance with and subject to the restrictions contained in paragraph (b) above) all its interests,
rights and obligations in respect of its Revolving Credit Commitment to such
assignee; provided, however, that
(i) no such assignment shall conflict with any law, rule and
regulation or order of any Governmental Authority and (ii) the Issuing
Bank, the Swingline Lender or such assignee, as the case may be, shall pay to
such Lender in immediately available funds on the date of such assignment the
principal of and interest accrued to the date of payment on the Loans made by
such Lender hereunder and all other amounts accrued for such Lender’s account
or owed to it hereunder.


 


SECTION 9.05. Expenses; Indemnity.  (a) The Borrower agrees to pay all
reasonable and documented out-of-pocket expenses incurred by the Administrative
Agent, the Collateral Agent, the Issuing Bank and the Swingline Lender in
connection with the syndication of the Credit Facilities and the preparation
and administration of this Agreement and the other Loan Documents or in
connection with any amendments, modifications or waivers of the provisions
hereof or thereof (whether or not the transactions hereby or thereby
contemplated shall be consummated) or incurred by the Administrative Agent, the
Collateral Agent or any Lender in connection with the


 


98

















 


enforcement or protection of its rights in connection with this
Agreement and the other Loan Documents or in connection with the Loans made or
Letters of Credit issued hereunder, including the reasonable and documented
fees, charges and disbursements of Cravath, Swaine & Moore LLP,
counsel for the Administrative Agent and the Collateral Agent, and, in
connection with any such enforcement or protection, the fees, charges and
disbursements of any other counsel for the Administrative Agent, the Collateral
Agent or any Lender.


 


(b)   The
Borrower agrees to indemnify the Administrative Agent, the Collateral Agent,
each Lender, the Issuing Bank and each Related Party of any of the foregoing
persons, their successors and assigns and members of each of the foregoing
(each such person being called an “Indemnitee”)  against,
and to hold each Indemnitee harmless from, any and all reasonable and
documented losses, claims, damages, liabilities and related expenses, including
reasonable counsel fees, charges and disbursements incurred by or asserted
against any Indemnitee arising out of, in any way connected with, or as a
result of (i) the execution or delivery of this Agreement or any other
Loan Document or any agreement or instrument contemplated thereby, the
performance by the parties thereto of their respective obligations thereunder
or the consummation of the Transactions and the other transactions contemplated
thereby (including the syndication of the Credit Facilities), (ii) the use
of the proceeds of the Loans or issuance of Letters of Credit, or (iii) any
claim, litigation, investigation or proceeding relating to any of the
foregoing, whether or not any Indemnitee is a party thereto (and regardless of
whether such matter is initiated by a third party or by the Borrower, any other
Loan Party or any of their respective Affiliates); provided that such indemnity shall not, as to any
Indemnitee, be available to the extent that such losses, claims, damages,
liabilities or related expenses (x) are determined by a court of competent
jurisdiction by final and nonappealeble judgment to have resulted from the
gross negligence or wilful misconduct of such Indemnitee or (y) result
from the release of Hazardous Materials or a violation of Environmental Laws
that first occurs at a particular owned real property after such property has
been transferred to any Indemnitees or its successor or assigns by foreclosure,
deed-in-lieu of foreclosure or similar transfer except to the extent caused by,
or attributable to the actions of or failure to act by, the Borrower or any of
its Subsidiaries.


 


(c)   To the
extent that the Borrower fails to pay any amount required to be paid by it to
the Administrative Agent, the Collateral Agent, the Issuing Bank or the
Swingline Lender under paragraph (a) or (b) of this Section, each
Lender severally agrees to pay to the Administrative Agent, the Collateral
Agent, the Issuing Bank or the Swingline Lender, as the case may be, such
Lender’s pro rata share (determined as of the time that the applicable
unreimbursed expense or indemnity payment is sought) of such unpaid amount; provided that the unreimbursed expense or
indemnified loss, claim, damage, liability or related expense, as the case may
be, was incurred by or asserted against the Administrative Agent, the
Collateral Agent, the Issuing Bank or the Swingline Lender in its capacity as
such. For purposes hereof, a Lender’s “pro rata share” shall be determined
based upon its share of the sum of the Aggregate Revolving Credit Exposure,
outstanding Term Loans and unused Commitments at the time.


 


99

















 


(d)   To the
extent permitted by applicable law, the Borrower shall not assert, and 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 Letter of Credit or the use of the proceeds thereof.


 


(e)   The provisions of this Section 9.05
shall remain operative and in full force and effect regardless of the
expiration of the term of this Agreement, the consummation of the transactions
contemplated hereby, the repayment of any of the Loans, the expiration of the
Commitments, the expiration of any Letter of Credit, 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 Administrative Agent,
the Collateral Agent, any Lender or the Issuing Bank.  All amounts due under this Section 9.05
shall be payable on written demand therefor.


 


SECTION 9.06. Right of Setoff.  If an Event of Default shall have
occurred and be continuing, each Lender is hereby authorized at any time and
from time to time, except to the extent prohibited by law, to set off and apply
any and all deposits (general or special, time or demand, provisional or final)
at any time held and other indebtedness at any time owing by such Lender to or
for the credit or the account of the Borrower or Holdings against any of and
all the obligations of the Borrower or Holdings now or hereafter existing under
this Agreement and other Loan Documents held by such Lender, irrespective of
whether or not such Lender shall have made any demand under this Agreement or
such other Loan Document and although such obligations may be unmatured. The
rights of each Lender under this Section 9.06 are in addition to other
rights and remedies (including other rights of setoff) which such Lender may
have.


 


SECTION 9.07. Applicable Law. THIS AGREEMENT AND THE OTHER LOAN
DOCUMENTS (OTHER THAN LETTERS OF CREDIT AND AS EXPRESSLY SET FORTH 1N OTHER
LOAN DOCUMENTS) SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS
OF THE STATE OF NEW YORK. EACH LETTER OF CREDIT SHALL BE GOVERNED BY, AND SHALL
BE CONSTRUED IN ACCORDANCE WITH, THE LAWS OR RULES DESIGNATED IN SUCH LETTER OF
CREDIT, OR IF NO SUCH LAWS OR RULES ARE DESIGNATED, THE UNIFORM CUSTOMS
AND PRACTICE FOR DOCUMENTARY CREDITS MOST RECENTLY PUBLISHED AND IN EFFECT, ON
THE DATE SUCH LETTER OF CREDIT WAS ISSUED, BY THE 1NTERNATIONAL CHAMBER OF
COMMERCE (THE “UNIFORM CUSTOMS”) AND, AS TO MATTERS NOT GOVERNED BY THE
UNIFORM CUSTOMS, THE LAWS OF THE STATE OF NEW YORK.


 


SECTION 9.08. Waivers; Amendment. (a) No failure or delay of the
Administrative Agent, the Collateral Agent, any Lender or the Issuing Bank in
exercising any power or right hereunder or under any other Loan Document shall
operate as a waiver 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


 


100

















 


other or further exercise thereof or the exercise of any other right or
power.  The rights and remedies of the
Administrative Agent, the Collateral Agent, the Issuing Bank 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 this Agreement or
any other Loan Document or consent to any departure by the Borrower or any
other Loan Party therefrom shall in any event be effective unless the same
shall be permitted by paragraph (b) below, and then such waiver or consent
shall be effective only in the specific instance and for the purpose for which
given. No notice or demand on the Borrower or Holdings in any case shall
entitle the Borrower or Holdings 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
Borrower, Holdings and the Required Lenders; provided,
however, that no such agreement shall (i) decrease the
principal amount of, or extend the maturity of or any scheduled principal
payment date or date for the payment of any interest on any Loan or any date
for reimbursement of an L/C Disbursement, or waive or excuse any such payment
or any part thereof, or decrease the rate of interest on any Loan or L/C
Disbursement, without the prior written consent of each Lender directly
adversely affected thereby, (ii) increase or extend the
Commitment or decrease or extend the date for payment of any Fees of any Lender
without the prior written consent of such Lender, (iii) amend or modify
the pro rata requirements of Section 2.17, the provisions of Section 9.04(j) or
the provisions of this Section or release all or substantially all of the
value of the Guarantees (other than in connection with the sale of such
Guarantor in a transaction permitted by Section 6.05) or all or
substantially all of the Collateral, without the prior written consent of each
Lender, (iv) change the provisions of any Loan Document in a manner that
by its terms adversely affects the rights in respect of payments due to Lenders
holding Loans of one Class differently from the rights of Lenders holding
Loans of any other Class without the prior written consent of Lenders
holding a majority in interest of the outstanding Loans and unused Commitments
of each adversely affected Class, (v) modify the protections afforded to
an SPC pursuant to the provisions of Section 9.04(i) without the
written consent of such SPC or (vi) reduce the percentage contained in the
definition of the term “Required Lenders” without the prior written consent of
each Lender (it being understood that with the consent of the Required Lenders,
additional extensions of credit pursuant to this Agreement may be included in the
determination of the Required Lenders on substantially the same basis as the
Term Loan Commitments and Revolving Credit Commitments on the date hereof); provided further that no such agreement
shall amend, modify or otherwise affect the rights or duties of the
Administrative Agent, the Collateral Agent, the Issuing Bank or the Swingline
Lender hereunder or under any other Loan Document without the prior written
consent of the Administrative Agent, the Collateral Agent, the Issuing Bank or
the Swingline Lender.


 


(c)   Notwithstanding
the foregoing, technical and conforming modifications to the Loan Documents may
be made with the consent of the Borrower and the Administrative Agent to the
extent necessary to integrate any Incremental Term


 


101

















 


Commitments or Incremental Revolving Credit Commitments on
substantially the same basis as the Term Loans or Revolving Credit Commitments,
as applicable.


 


SECTION 9.09. Interest Rate Limitation.  Notwithstanding anything herein to the
contrary, if at any time the interest rate applicable to any Loan or
participation in any L/C Disbursement, together with all fees, charges and
other amounts which are treated as interest on such Loan or participation in
such L/C Disbursement under applicable law (collectively the “Charges”), shall exceed the maximum lawful
rate (the “Maximum Rate”) which may be contracted
for, charged, taken, received or reserved by the Lender holding such Loan or
participation in accordance with applicable law, the rate of interest payable
in respect of such Loan or participation hereunder, together with all Charges
payable in respect thereof, shall be limited to the Maximum Rate and, to the
extent lawful, the interest and Charges that would have been payable in respect
of such Loan or participation but were not payable as a result of the operation
of this Section 9.09 shall be cumulated and the interest and Charges
payable to such Lender in respect of other Loans or participations or periods
shall be increased (but not above the Maximum Rate therefor) until such
cumulated amount, together with interest thereon at the Federal Funds Effective
Rate to the date of repayment, shall have been received by such Lender.


 


SECTION 9.10. Entire Agreement. This Agreement, the Fee Letter and the other Loan
Documents constitute the entire contract between the parties relative to the
subject matter hereof. Any other previous agreement among the parties with
respect to the subject matter hereof is superseded by this Agreement and the
other Loan Documents. Nothing in this Agreement or in the other Loan Documents,
expressed or implied, is intended to confer upon any person (other than the
parties hereto and thereto, their respective successors and assigns permitted
hereunder (including any Affiliate of the Issuing Bank that issues any Letter
of Credit) and, to the extent expressly contemplated hereby, the Related
Parties of each of the Administrative Agent, the Collateral Agent, the Issuing
Bank and the Lenders) any rights, remedies, obligations or liabilities under or
by reason of this Agreement or the other Loan Documents.


 


SECTION 9.11. 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 1N 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 9.11.


 


102

















 


SECTION 9.12. 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 9.13. 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 9.03.
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.


 


SECTION 9.14. 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 9.15. 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 the
other Loan Documents, or for recognition or enforcement of any judgment, and
each of the parties 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 of the parties 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 shall affect any right that any party hereto may
otherwise have to bring any action or proceeding relating to this Agreement or
the other Loan Documents against any other party hereto or their respective
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 the other Loan Documents in any New York State or Federal
court. Each of the parties 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.


 


103

















 


(c)   Each
party to this Agreement irrevocably consents to service of process in the
manner provided for notices in Section 9.01. Nothing in this Agreement
will affect the right of any party to this Agreement to serve process in any
other manner permitted by law.


 


SECTION 9.16. Confidentiality. Each of the Administrative
Agent, the Collateral Agent, the Issuing Bank and the Lenders agrees to
maintain the confidentiality of the Information (as defined below), except that
Information may be disclosed (a) to its and its Affiliates’
officers, directors, employees and agents, including accountants, legal counsel
and other advisors (it being understood that the persons to whom such
disclosure is made will be informed of the confidential nature of such
Information and instructed to keep such Information confidential), (b) upon
notice to the Borrower (to the extent practicable and permitted under
applicable laws or regulations), to the extent requested by any regulatory
authority or quasi-regulatory authority (such as the National Association of
Insurance Commissioners), (c) upon
notice to the Borrower (to the extent practicable and permitted under
applicable laws or regulations), to the extent required by applicable laws or
regulations or by any subpoena or similar legal process, (d) in connection
with the exercise of any remedies hereunder or under the other Loan Documents
or any suit, action or proceeding relating to the enforcement of its rights
hereunder or thereunder, (e) subject to an agreement containing provisions
substantially the same as those of this Section 9.16, to (i) any
actual or prospective assignee of or participant in any of its rights or
obligations under this Agreement and the other Loan Documents or (ii) any
actual or prospective counterparty (or its advisors) to any swap or derivative
transaction relating to the Borrower or any Subsidiary or any of their
respective obligations, (f) with the consent of the Borrower or (g) to
the extent such Information becomes publicly available other than as a result
of a breach of this Section 9.16. For the purposes of this Section, “Information”  shall mean all information
received from the Borrower or Holdings and related to the Borrower or Holdings
or their business, other than any such information that was available to the
Administrative Agent, the Collateral Agent, the Issuing Bank or any Lender on a
nonconfidential basis prior to its disclosure by the Borrower or Holdings. Any
person required to maintain the confidentiality of Information as provided in
this Section 9.16 shall be considered to have complied with its obligation
to do so if such person has exercised the same degree of care to maintain the
confidentiality of such Information as such person would accord its own
confidential information.


 


SECTION 9.17. USA PATRIOT Act Notice.  Each Lender and the Administrative Agent
(for itself and not on behalf of any Lender) hereby notifies Holdings and the
Borrower that pursuant to the requirements of the USA PATRIOT Act, it is
required to obtain, verify and record information that identifies Holdings and
the Borrower, which information includes the name and address of Holdings and
the Borrower and other information that will allow such Lender or the
Administrative Agent, as applicable, to identify Holdings and the Borrower in
accordance with the USA PATRIOT Act.


 


SECTION 9.18. Effect of Certain Inaccuracies.  In the event that any financial statement
or certificate delivered pursuant to Section 5.04(a) or (b) and Section 5.04(c),


 


104

















 


respectively,
is inaccurate (regardless of whether this Agreement or the Commitments are in
effect when such inaccuracy is discovered), and such inaccuracy, if corrected,
would have led to the application of a higher Applicable Percentage or a higher
Commitment Fee for any period (an “Applicable Period”)  than the Applicable Percentage or
Commitment Fee applied for such Applicable Period, then (i) the Borrower
shall promptly deliver to the Administrative Agent a corrected financial
statement and a corrected compliance certificate for such Applicable Period, (ii) the
Applicable Percentage and the Commitment Fee shall be determined based on the
corrected compliance certificate for such Applicable Period, and (iii) the
Borrower shall promptly pay to the Administrative Agent (for the accounts of
the applicable Lenders during the Applicable Period or their successors and
assigns) the accrued additional interest or additional Commitment Fees (or
both) owing as a result of such increased Applicable Percentage or Commitment
Fee for such Applicable Period.  This Section 9.18
shall not limit the rights of the Administrative Agent or the Lenders with
respect to Section 2.07 or Article VII.


 


105














 


IN WITNESS WHEREOF, the parties hereto have caused
this Agreement to be duly executed by their respective authorized officers as
of the day and year first above written.


 


	
   

  	
  STR
  ACQUISITION, INC.,

  
	
   

  	
   

  
	
   

  	
  by

  	
  /s/
  Jason Metakis

  
	
   

  	
   

  	
  Name:

  	
  Jason
  Metakis

  
	
   

  	
   

  	
  Title:

  	
  VP & Treasurer

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  STR
  HOLDINGS LLC,

  
	
   

  	
   

  
	
   

  	
  by

  	
  /s/
  Jason Metakis

  
	
   

  	
   

  	
  Name:
  

  	
  Jason
  Metakis

  
	
   

  	
   

  	
  Title:

  	
  VP & Treasurer

  



 


[First Lien Credit Agreement]


 

















 


	
   

  	
  CREDIT
  SUISSE, CAYMAN ISLANDS

  
	
   

  	
  BRANCH,
  individually and as

  
	
   

  	
  Administrative
  Agent, Collateral Agent,

  
	
   

  	
  Swingline
  Lender and Issuing Bank,

  
	
   

  	
   

  
	
   

  	
  by

  	
  /s/
  Shanka Mohan 

  
	
   

  	
   

  	
  Name:

  	
  Shanka
  Mohan 

  
	
   

  	
   

  	
  Title:

  	
  Vice
  President

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  by

  	
  /s/
  James Neira 

  
	
   

  	
   

  	
  Name:
  

  	
  James
  Neira 

  
	
   

  	
   

  	
  Title:

  	
  Associate

  



 


[First Lien Credit Agreement]


 

















 


	
   

  	
  THE
  GOVERNOR AND COMPANY 

  
	
   

  	
  OF
  THE BANK OF IRELAND,

  
	
   

  	
  as Lender,

  
	
   

  	
   

  
	
   

  	
  by

  	
  /s/
  Edward A.  Boyle
  

  
	
   

  	
   

  	
  Name:

  	
  Edward
  A.  Boyle
  

  
	
   

  	
   

  	
  Title:

  	
  Vice
  President

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/
  Paul Clarke 

  
	
   

  	
   

  	
  Name:
  

  	
  Paul Clarke 

  
	
   

  	
   

  	
  Title:

  	
  Director

  



 


[First Lien Credit Agreement]


 


2

















 


	
   

  	
        NATIXIS,

  
	
   

  	
  as
  Lender,

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  by

  	
  /s/
  Patric Lager 

  
	
   

  	
   

  	
  Name:
  

  	
  Patric Lager 

  
	
   

  	
   

  	
  Title:

  	
  Managing Director

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  by

  	
  /s/
  Kelvin Cheng 

  
	
   

  	
   

  	
  Name:
  

  	
  Kelvin Cheng 

  
	
   

  	
   

  	
  Title:

  	
  Director

  
					



 


[First Lien Credit Agreement]


 


2






 










 


SCHEDULE 1.01(a)




Subsidiary Guarantors


 


Cal
Safety Compliance Corporation


Specialized
Technology Resources (International), Inc.


Shuster
Laboratories, Inc.


Supply
Chain Consulting Services Corporation


Specialized
Technology Resources (Florida), Inc


STR
Materials Science, Inc.


 


2

















 


SCHEDULE 1.01(b)




Mortgaged Property


 


Property
located at 10 Water Street, Enfield, CT 06082, described as follows:


 


That
certain piece or parcel of land on the south side of Hazard Avenue (Route 190)
in the Town of Enfield, County of Hartford and State of Connecticut, shown as “Parcel
A” on Sheet 1 of 2 on a map or plan entitled: “Prepared for Springborn
Laboratories, Inc. Hazard Avenue & Abbe Road, Enfield, Conn. . . Scale: 1
in. = 100 ft. Date: June 30, 1987. . . Rev. 2-24-88. . . Alford Associates, Inc.
Civil Engineers, Windsor, Connecticut,” which map or plan is on file with the
Enfield Town Clerk in Volume 220, Page 3033, and more particularly bounded and
described as follows:


 


Beginning
at a point on the south side of Hazard Avenue, which point is the northwest
corner of the herein described premises and the northeast corner of land now or
formerly of Raymond F. and Suzanne Aquilio, as shown on said map; running
thence along the arc of a curve to the right having a radius of 933.00 feet and
a delta angle of 9° 34' 03" a distance of 155.79 feet to a CHD marker;
running thence N 83° 19' 04" E a distance of 414.00 feet to a CHD
monument; running thence N 82° 58' 24" E a distance of 143.64 feet to a
point, the last three courses running along the south side of Hazard Avenue;
running thence S 09° 53' 12" E a distance of 435.66 feet along land now or
formerly of National Railroad Passenger Corporation as shown on said map;
running thence S 89° 20' 43" W a distance of 143.38 feet to a point; S 64°
08' 57" W a distance of 9.72 feet to a point; S 00° 09' 17" W a
distance of 14.24 feet to a point; S 89° 08' 16" W a distance of 51.12
feet to a point; S 86° 57' 00" W a distance of 105.15 feet to a point; N
89° 55' 46" W a distance of 384.08 feet to a point; S 79° 44' 15" W a
distance of 139.61 feet to a set iron pin; N 69° 59' 38" W a distance of
129.11 feet to a set iron pin, the last eight (8) courses being along the
Scantic River as shown on said map; running thence N 24° 34' 57" E a
distance of 401.37 feet along land now or formerly of Thomas E. and Diane S.
Eastwood, James C. and Nancy A. Miczak and Raymond F. and Suzanne Aquilia, in
part by each, to the point or place of beginning.


 


TOGETHER
WITH an easement from the State of Connecticut to Springborn Testing &
Research, Inc. dated December 31, 1997 and recorded in Volume 1156, Page 123 of
the Enfield Land Records.


 


3

















 


Schedule 2.01 

Lenders and Commitments


 


	
   

  	
   

  	
  First Lien

  	
   

  	
  Revolver

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Term
  Loan

  	
   

  	
  Loan

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Commitment

  	
   

  	
  Commitment

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  on
  Closing

  	
   

  	
  on Closing

  	
   

  	
  Total Commitment on

  	
   

  
	
  Lender

  	
   

  	
  Date

  	
   

  	
  Date

  	
   

  	
  Closing Date

  	
   

  
	
  Credit
  Suisse

  	
   

  	
  $

  	
  160,000,000

  	
   

  	
  $

  	
  9,500,000

  	
   

  	
  $

  	
  169,500,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Natixis

   

  Patric Lager

  Business Phone:
  212-872-5030

  EMail: patric.lager@nyc.nxbp.com

   

  Kelvin Cheng

  Business Phone:
  212-872-5067

  EMail:
  kelvin.cheng@natixis.us

  	
   

  	
  $

  	
  15,000,000

  	
   

  	
  $

  	
  7,500,000

  	
   

  	
  $

  	
  22,500,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Bank
  of Ireland

   

  Ed Boyle

  Business Phone:
  203-391-5922

  EMail:
  ed.boyle@boimail.com

   

  Paul Clarke

  Business Phone:
  203-861-8983

  EMail:
  paul.clarke@boimail.com

  	
   

  	
  $

  	
  10,000,000

  	
   

  	
  $

  	
  3,000,000

  	
   

  	
  $

  	
  13,000,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  TOTAL COMMITMENT

  	
   

  	
  $

  	
  185,000,000

  	
   

  	
  $

  	
  20,000,000

  	
   

  	
  $

  	
  205,000,000

  	
   

  



 

















 


SCHEDULE 3.08


 


Subsidiaries


 


STR
Acquisition, Inc. — 100% owned by STR Holdings LLC


 


Specialized
Technology Resources, Inc. (“STR”) (to be the survivor of merger with STR
Acquisition, Inc.; thereafter to be 100% owned by STR Holdings LLC.


 


	
  (a)

  	
   

  	
  (Unless
  otherwise noted, STR owns 100% of the equity securities of each subsidiary)

  
	
   

  	
   

  	
   

  
	
  1.

  	
   

  	
  Specialized
  Technology Resources (Singapore) Pte Ltd (100% of voting stock owned by STR;
  small portion of non-voting stock owned by STR-HK)

  
	
   

  	
   

  	
   

  
	
  2.

  	
   

  	
  Specialised
  Technology Resources (UK) Limited (“STR-UK”)

  
	
   

  	
   

  	
   

  
	
  3.

  	
   

  	
  Cal
  Safety Compliance Corporation (“CSCC”)

  
	
   

  	
   

  	
   

  
	
  4.

  	
   

  	
  Cal
  Safety Compliance Corporation de CV (Gregory Gardner owns one share of the 50
  outstanding shares; remaining shares owned by CSCC)

  
	
   

  	
   

  	
   

  
	
  5.

  	
   

  	
  Specialized
  Technology Resources Laboratuar Hizmetleri Anonim Sirketi (99% owned by
  Company, .25% owned by each of STR-UK, STR-HK, STRAG and CSCC).

  
	
   

  	
   

  	
   

  
	
  6.

  	
   

  	
  STR
  Laboratuar Hizmetleri ve Gozetim Ltd. (dormant)

  
	
   

  	
   

  	
   

  
	
  7.

  	
   

  	
  STR-Registrar
  LLC (51% owned by STR; 49% owned by Science, Technology and Registration
  Holdings, Inc. (formerly Quality Paradigms))

  
	
   

  	
   

  	
   

  
	
  8.

  	
   

  	
  Specialized
  Technology Resources (International), Inc. (“STR-I”)

  
	
   

  	
   

  	
   

  
	
  9.

  	
   

  	
  Specialized
  Technology Resources (Taiwan) Ltd. (owned by STR-I)

  
	
   

  	
   

  	
   

  
	
  10.

  	
   

  	
  Specialized
  Technology Resources (Hong Kong) Ltd. (“STR-HK”) (Dennis Jilot owns one share
  of the 120,002 outstanding shares and remaining shares owned by STR-I)

  
	
   

  	
   

  	
   

  
	
  11.

  	
   

  	
  Specialized
  Technology Resources (Shanghai) Ltd. (owned by STR-HK)

  
	
   

  	
   

  	
   

  
	
  12.

  	
   

  	
  STR
  Testing & Inspection AG (“STR AG”) (owned by STR-I)

  
	
   

  	
   

  	
   

  
	
  13.

  	
   

  	
  Specialized
  Technology Resources España S.A.

  
	
   

  	
   

  	
   

  
	
  14.

  	
   

  	
  Shuster
  Laboratories, Inc.

  
	
   

  	
   

  	
   

  
	
  15.

  	
   

  	
  Supply
  Chain Consulting Services Corporation (dormant)

  
	
   

  	
   

  	
   

  
	
  16.

  	
   

  	
  Specialized
  Technology Resources (India) Pvt Ltd. (Samir Rastogi owns 1 share of the
  5,000 outstanding shares; remaining shares owned by STR)

  
	
   

  	
   

  	
   

  
	
  17.

  	
   

  	
  Specialized
  Technology Resources (Florida), Inc.

  
	
   

  	
   

  	
   

  
	
  18.

  	
   

  	
  Specialised
  Technology Resources Lanka (Private) Limited (50% owned by STR; 50% owned by
  STR-I)

  
	
   

  	
   

  	
   

  
	
  19.

  	
   

  	
  STR
  Materials Science, Inc. (dormant)

  
	
   

  	
   

  	
   

  
	
  20.

  	
   

  	
  Tex
  Analysis Laboratory Private Limited (owned by STR-HK)

  
	
   

  	
   

  	
   

  
	
  21.

  	
   

  	
  STR
  Vietnam Co. Ltd. (owned by STR-HK)

  



 


5

















 


(b)               Joint
Ventures


 


STR France S.A.S. (STR-UK owns a 50% interest) 


 


CTC Asia Ltd. (STR owns 50%)


 


6

















 


SCHEDULE 3.09


 


Litigation


 


1.             Specialized
Technology Resources, Inc. (“STR”) is aware of certain inquiries in India with
respect to the former operations of Cal Safety Compliance Corporation (“CSCC”)
in India by the Enforcement Directorate concerning the manner in which it was
conducting business in India and its authority to do so. These inquiries are
ongoing and during the course of them a current employee of STR in India was
questioned but no further steps have been taken.


 


2.             The local manager
of CSCC in India has received a complaint dated August 19, 2005, filed in the
Court of the Judicial Magistrate at Gurgaon, alleging certain improprieties on
a website maintained by CSCC with respect to the display of the map of India
and the Indian national flag. This matter is ongoing.


 


3.             On April 17, 2006,
a proceeding was initiated against Specialized Technology Resources Espana S.A.
by the family of a worker injured at its plant in Spain. The proceeding is
criminal in nature at this time, but as is custom in Spain, it is expected that
civil claims will arise relating to this claim. Specialized Technology
Resources España S.A. has local counsel and has referred the matter to its
insurer.


 


7

















 


SCHEDULE 3.17


 


Environmental Matters


 


None.


 


8

















 


Schedule 3.18

Insurance


	
  Type of
  Insurance

  	
   

  	
  Policy Number

  	
   

  	
  Carrier

  
	
  Domestic
  Commercial General Liability

  	
   

  	
  10CESOA9276

  	
   

  	
  The
  Hartford (Twin City Fire)

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Commercial
  Umbrella Liability

  	
   

  	
  AUC591925100

  	
   

  	
  American
  Guarantee & Liability (Zurich)

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  D & O/EPL

  	
   

  	
  626-00-58

  	
   

  	
  AIG —
  Illinois National Ins. Co.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Forefront
  Portfolio Crime & Fiduciary Liability

  	
   

  	
  8185-3181

  	
   

  	
  Federal
  Insurance Company (Chubb)

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Forefront
  Portfolio Kidnap/Ransom & Extortion

  	
   

  	
  6804-1625

  	
   

  	
  Federal
  Insurance Company (Chubb)

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Errors & Omissions (Professional Liability)

  	
   

  	
  1155784

  	
   

  	
  Lexington
  Insurance

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Foreign
  General Liability

  	
   

  	
  GBO2901067

  	
   

  	
  St. Paul
  Travelers

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Global
  Marine/War Cargo

  	
   

  	
  M-20159,
  WC-20159

  	
   

  	
  Falvey Cargo

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Flood
  Policies

  	
   

  	
  2043437800 

  1011190076 

  2044479400 

  2044479500

  	
   

  	
  American
  Bankers Ins. Co. of Florida

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  War Risk
  Coverage

  	
   

  	
  8034573

  	
   

  	
  AIG Life
  Ins. Co.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Adjustable
  Premium Term Life Insurance Policy (John F. Gual)

  	
   

  	
  11305750

  	
   

  	
  Massachusetts
  Mutual Life Insurance Company

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Adjustable
  Premium Term Life Insurance Policy (Dennis
  Jilot)

  	
   

  	
  1116S207

  	
   

  	
  Massachusetts
  Mutual Life Insurance Company

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Worldwide
  Property

  	
   

  	
  GPAD3601751-A

  	
   

  	
  ACE
  American Insurance Company

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Workers
  Compensation

  	
   

  	
  WCJZ91445093027

  	
   

  	
  WAUSAU,
  Member of Liberty Mutual Group

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Commercial
  Automobile

  	
   

  	
  ASJZ91445093017

  	
   

  	
  WAUSAU,
  Member of Liberty Mutual Group

  



 


9














 


Schedule 3.19(a)




UCC Filing Offices


 


	
  Grantor

  	
   

  	
  Filing Office(s)

  
	
  STR
  Holdings LLC

  	
   

  	
  Delaware Secretary of State

  
	
   

  	
   

  	
   

  
	
  STR
  Acquisition, Inc.

  	
   

  	
  Delaware Secretary of State

  
	
   

  	
   

  	
   

  
	
  Specialized
  Technology Resources, Inc.

  	
   

  	
  Delaware Secretary of State

  

  Enfield, Connecticut Town Clerk

  

  Somers, Connecticut Town Clerk

  
	
   

  	
   

  	
   

  
	
  Cal
  Safety Compliance Corporation

  	
   

  	
  California Secretary of State

  

  Los Angeles County Registrar-Recorder/County Clerk

  

  Hudson County, NJ

  
	
   

  	
   

  	
   

  
	
  Specialized
  Technology Resources (International), Inc.

  	
   

  	
  Delaware Secretary of State

  
	
   

  	
   

  	
   

  
	
  Shuster
  Laboratories, Inc.

  	
   

  	
  Delaware Secretary of State

  

  Norfolk County (MA) Registry of Deeds

  
	
   

  	
   

  	
   

  
	
  Supply
  Chain Consulting Services Corporation

  	
   

  	
  Delaware Secretary of State

  

  Los Angeles County Registrar-Recorder/County Clerk

  
	
   

  	
   

  	
   

  
	
  Specialized
  Technology Resources (Florida), Inc.

  	
   

  	
  FloridaUCC, Inc.

  

  St. Johns County Circuit Court

  
	
   

  	
   

  	
   

  
	
  STR
  Materials Science, Inc.

  	
   

  	
  Delaware Secretary of State

  



 

















 


Schedule 3.19(c)


 


Mortgage Filing Offices


 


Mortgage
on the property owned by Specialized Technology Resources, Inc. located at 10
Water Street, Enfield, Connecticut to be filed in the Land Records of the Town
of Enfield, Connecticut maintained by the Town Clerk of Enfield, Connecticut.


 

















 


Schedule 3.20(a)


 


Owned Real Property


 


	
  Address

  	
   

  	
  Owned

  	
   

  	
  Entity

  
	
  10
  Water Street

  Enfield, CT 06082

  	
   

  	
  Owned

  	
   

  	
  Specialized
  Technology Resources, Inc.

  



 


Credit Agreement


 

















 


Schedule 3.20(b)


 


Leased Real Property


 


	
  Address

  	
   

  	
  Leased

  	
   

  	
  Entity

  
	
  24
  Scitico Road

  Somers, CT

  	
   

  	
  Leased

  	
   

  	
  Specialized
  Technology Resources, Inc.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  66
  Hudson Street, 1st

  Floor, Hoboken, NJ

  	
   

  	
  Leased

  	
   

  	
  Cal
  Safety Compliance Corporation

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  1122
  West Washington

  Boulevard, Los Angeles,

  CA

  	
   

  	
  Leased

  	
   

  	
  Cal
  Safety Compliance Corporation

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Units
  425-427, 4th Floor,

  Hankow Center, 5-155

  Hankow Road, Tsim Sha

  Tsui, Kowloon, HK

  	
   

  	
  Leased

  	
   

  	
  Cal
  Safety Compliance Corporation

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  House
  #162, 3rd Floor,

  Road #1 (East), D.O.S.H.,

  Baridhara, Gulshan,

  Bangladesh 12121

  	
   

  	
  Leased

  	
   

  	
  Cal
  Safety Compliance Corporation

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  JL
  Barito II No. 33

  Kebayoran Baru, Jakarta,

  Indonesia 12130

  	
   

  	
  Leased

  	
   

  	
  Cal
  Safety Compliance Corporation

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  85
  John Road, Canton,

  MA 02021

  	
   

  	
  Leased

  	
   

  	
  Shuster
  Laboratories, Inc.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  30
  Iroquois Street, Saint

  Augustine, FL 32085

  	
   

  	
  Leased

  	
   

  	
  Specialized
  Technology Resources (Florida), Inc.

  



 

















 


Schedule 6.01


 


Existing Indebtedness


 


1.                                       Letter of
Support dated February 2, 2006 to Lee Seng Chan & Co. (the auditors of
Specialized Technology Resources (Singapore) Pte. Ltd.).


 


2.                                       Master
Equipment Lease with Key Equipment Finance, dated September 16, 2005.


 


3.                                       Reimbursement
Agreement dated January 14, 2007 between Specialized Technology Resources, Inc.
and Webster Bank relating to Letter of Credit number 10304 dated January 9,
2007 for $821,684 in favor of Macro Engineering & Technology, Inc.


 


4.                                       Assignment of
Certificate of Deposit dated June 14, 2007 made by Specialized Technology
Resources, Inc. in favor of Webster Bank relating to the Assignment of an
$862,768 Certificate of Deposit as collateral for Specialized Technology
Resources, Inc.’s obligations under the Reimbursement Agreement set forth in
item 3 above.


 

















 


Schedule 6.02


 


Existing Liens


 


UCC
Liens


 


	
  Grantor

  	
   

  	
  Secured Party

  	
   

  	
  Jurisdiction

  	
   

  	
  Date and File

  Number

  
	
  STR
  Holdings LLC 

  	
   

  	
  None

  	
   

  	
  Delaware Secretary of State

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  STR
  Acquisition, Inc. 

  	
   

  	
  None

  	
   

  	
  Delaware Secretary of State

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Specialized  Technology
  Resources, Inc. 

  	
   

  	
  ISO
  Capital, LLC



   

   

  Key
  Equipment Finance, Inc.

   

   

  None

   

   

  None

  	
   

  	
  Delaware Secretary of State



   

   

  Delaware Secretary of State

   

   

   

  Enfield, Connecticut Town Clerk

   

  Somers, Connecticut Town Clerk

  	
   

  	
  12/11/02

  

  2309129 9

   

  9/21/05

   

  5292107 1

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Cal
  Safety Compliance Corporation 

  	
   

  	
  None

   

   

   

  None

  	
   

  	
  Los Angeles County Registrar-Recorder/County Clerk

   

  Hudson County (NJ) Register

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Specialized  Technology
  Resources (International), Inc.

  	
   

  	
  None

  	
   

  	
   

  	
   

  	
   

  



 

















 


	
  Shuster
  Laboratories, Inc. 

  	
   

  	
  Key
  Equipment Finance, Inc.

   

   

  None

  	
   

  	
  Delaware Secretary of State

   

   

  Norfolk County (MA) Registry of Deeds

  	
   

  	
  9/21/05



  5292107 1

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  STR
  Acquisition Sub, Inc. (now known as Shuster Laboratories, Inc.) 

  	
   

  	
  None

   

   

  None

  	
   

  	
  Delaware Secretary of State

   

  Norfolk County (MA) Registry of Deeds

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Supply
  Chain  Consulting Services Corporation

  	
   

  	
  None

  	
   

  	
  Los Angeles County Registrar- Recorder/County Clerk

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Specialized  Technology
  Resources (Florida), Inc.

  	
   

  	
  None

  	
   

  	
  St. Johns County Circuit Court

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Conplex,
  Inc., (now known as Specialized Technology Resources (Florida), Inc.)

  	
   

  	
  Toyota
  Motor Credit Corporation

  	
   

  	
  Florida Secured Transaction Registry

  	
   

  	
  7/1/04

  200407315878

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  None

  	
   

  	
  St. Johns County Circuit Court

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  STR
  Materials Science, Inc.

  	
   

  	
  None

  	
   

  	
  Delaware Secretary of State

  	
   

  	
   

  



 


Permitted
Encumbrances


 


	
  1.

  	
   

  	
  Taxes
  to the Town of Enfield not yet due and payable.

  
	
   

  	
   

  	
   

  
	
  2.

  	
   

  	
  Fire
  Taxes to the City of Enfield; which payments are current and not yet due and
  payable.

  
	
   

  	
   

  	
   

  
	
  3.

  	
   

  	
  The
  following matters as shown on the map filed in Map Volume 220, Page 3033 in
  the Office of the Enfield Town Clerk:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  a.

  	
  Sanitary
  sewer easement and rights to construct and maintain drainage structures; and

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  b.

  	
  Notes
  shown thereon.

  



 

















 


	
  4.

  	
   

  	
  Pole
  line easement in favor of the Connecticut Light and Power Company dated
  August 6, 1956 and recorded in Volume 151, Page 241 of the Enfield Land
  Records.

  
	
   

  	
   

  	
   

  
	
  5.

  	
   

  	
  Pole
  line easement in favor of the Connecticut Light and Power Company dated July
  21, 1938 and recorded in Volume 84, Page 240 of the Enfield Land Records.

  
	
   

  	
   

  	
   

  
	
  6.

  	
   

  	
  Easement
  in favor of Hazardville Water Company recorded in Volume 107, Page 2 of the
  Enfield Land Records.

  
	
   

  	
   

  	
   

  
	
  7.

  	
   

  	
  Easement
  in favor of the Town of Enfield described in deed from DeBell &
  Richardson, Inc. dated July 10, 1984 and recorded in Volume 386, Page 443 of
  the Enfield Land Records.

  
	
   

  	
   

  	
   

  
	
  8.

  	
   

  	
  Permanent
  Right of Way Easement in favor of the State of Connecticut dated July 29,
  1996 and recorded in Volume 1156, Page 131 of the Enfield Land Records. See
  also maps filed in Map Volume 220, Page 3037 and Map Volume 239, Pages 3968
  and 3969 in the Office of the Enfield Town Clerk.

  
	
   

  	
   

  	
   

  
	
  9.

  	
   

  	
  Rights
  of others in and to any water courses on, touching or flowing through the
  premises.

  
	
   

  	
   

  	
   

  
	
  10.

  	
   

  	
  Possible
  public easement of use and enjoyment of the beach or shore area above the low
  water mark of the Scantic River.

  
	
   

  	
   

  	
   

  
	
  11.

  	
   

  	
  Terms
  and conditions of Easement from the State of Connecticut to Springborn
  Testing & Research, Inc. dated December 31, 1997 and recorded in Volume
  1156, Page 123 of the Enfield Land Records (affects appurtenant rights only).

  
	
   

  	
   

  	
   

  
	
  12.

  	
   

  	
  Matters
  on a survey entitled “Improvement Location Survey Prepared For Specialized
  Technology Resources 504 Hazard Avenue a.k.a 10 Water Street Enfield, Conn.”
  Prepared by Alford Associates, Inc. Scale 1 In.= 30 Ft. Date: Feb. 20, 1996
  Rev. 8-13-01 Updated Survey, Change Title Block:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  a.

  	
  25’
  side yard set back lines;

  
	
   

  	
   

  	
  b.

  	
  concrete
  supports for oil tanks (oil tanks removed);

  
	
   

  	
   

  	
  c.

  	
  encroaching
  drainage on the easterly property line;

  
	
   

  	
   

  	
  d.

  	
  lean
  to shed encroaches 3.4” on the easterly property line;

  
	
   

  	
   

  	
  e.

  	
  conc.
  retaining wall on the southerly property line;

  
	
   

  	
   

  	
  f.

  	
  property
  line follows face of building on the southerly property line;

  
	
   

  	
   

  	
  g.

  	
  dam
  on the southerly property line;

  
	
   

  	
   

  	
  h.

  	
  Scantic
  River along southerly property line;

  
	
   

  	
   

  	
  i.

  	
  Brook;

  
	
   

  	
   

  	
  j.

  	
  Outlet
  pipes which encroach on the northerly property line;

  
	
   

  	
   

  	
  k.

  	
  Existing
  culvert on the northerly property line;

  
	
   

  	
   

  	
  l.

  	
  40’
  set back line;

  
	
   

  	
   

  	
  m.

  	
  water
  lines;

  
	
   

  	
   

  	
  n.

  	
  gas
  lines; and

  
	
   

  	
   

  	
  o.

  	
  Water
  Street (abandoned).

  
	
   

  	
   

  	
  p.

  	
  Notes on said map.

  



 

















 


	
  13.

  	
   

  	
  Sanitary
  Sewer Easement is shown per Water Street Sanitary Sewer Plan and Easement
  reserved to the Town of Enfield per Council Action Feb.10, 1975.

  
	
   

  	
   

  	
   

  
	
  14.

  	
   

  	
  Parcel
  may be subject to rights to construct and maintain drainage structure and rip
  rap acquired from Gordon Brothers by Connecticut D.O.T. per plan number 266,
  Sheet 2 of 2, April 30, 1930.

  
	
   

  	
   

  	
   

  
	
  15.

  	
   

  	
  Possible
  rights of others for ingress and egress over abandoned portion of Water
  Street.

  
	
   

  	
   

  	
   

  
	
  16.

  	
   

  	
  Possible
  rights of others as defined in the Council Minutes dated February 10, 1975
  for the abandonment of Water Street.

  
	
   

  	
   

  	
   

  
	
  17.

  	
   

  	
  Assignment of Certificate
  of Deposit dated June 14, 2007 made by Specialized Technology Resources, Inc.
  in favor of Webster Bank relating to the Assignment of an $862,768
  Certificate of Deposit as collateral for Specialized Technology Resources,
  Inc.’s obligations under the Reimbursement Agreement set forth in item 3 of
  Schedule 6.01 above.

  



 














 


EXHIBIT
A


 


[FORM OF]


 


ADMINISTRATIVE QUESTIONNAIRE


 


SPECIALIZED TECHNOLOGY RESOURCES, INC.


 


	
  Agent Information

  	
  Agent Closing Contact

  
	
  Credit Suisse

  	
  Fay Rollins

  
	
  Eleven Madison Avenue

  	
  Tel: 212-325-9041

  
	
  New York, NY 10010

  	
  Fax: 212-743-1422

  
	
   

  	
  E-Mail: fay.rollins@credit-suisse.com

  



 


Agent
Wire Instructions


Bank of New York


ABA 021000018


Account Name: CSFB Agency Cayman Account


Account Number: 8900492627


 


It
is very important that all of the
requested information be completed accurately and that this questionnaire be
returned promptly. If your institution is sub-allocating its allocation, please
fill out an administrative questionnaire for each legal entity.


 


	
  Legal Name of Lender to appear in Documentation:

  
	
   

  
	
   

  
	
  Signature Block Information:

  	
   

  



 


	
   

  	
  ·

  	
  Signing Credit Agreement

  	
  o Yes

  	
  o  No

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  ·

  	
  Coming in via
  Assignment

  	
  o Yes

  	
  o No

  



 


	
  Type of Lender:

  	
   

  



 


(Bank,
Asset Manager, Broker/Dealer, CLO/CDO; Finance Company, Hedge Fund, Insurance,
Mutual Fund, Pension Fund, Other Regulated Investment Fund, Special Purpose
Vehicle, Other-please specify)


 


	
  Lender Parent:

  	
   

  



 


	
  Lender Domestic Address

  	
   

  	
  Lender Eurodollar Address

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  



 

















 


Contacts/Notification Methods: Borrowings, Paydowns,
Interest, Fees, etc.


 


	
   

  	
   

  	
  Primary Credit Contact

  	
   

  	
  Secondary Credit Contact

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Company:

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Address:

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Telephone:

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Facsimile:

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  E-Mail Address:

  	
   

  	
   

  	
   

  	
   

  



 


	
   

  	
   

  	
  Primary Operations Contact

  	
   

  	
  Secondary Operations Contact

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Company:

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Address:

  	
   

  	
   

  	
   

  	
   

  



 


Lender’s Domestic Wire
Instructions


 


	
  Bank Name:

  	
   

  
	
   

  	
   

  
	
  ABA/Routing No.: 

  	
   

  
	
   

  	
   

  
	
  Account Name:

  	
   

  
	
   

  	
   

  
	
  Account No.:

  	
   

  
	
   

  	
   

  
	
  FFC Account Name:

  	
   

  
	
   

  	
   

  
	
  FFC Account No.: 

  	
   

  
	
   

  	
   

  
	
  Attention:

  	
   

  
	
   

  	
   

  
	
  Reference:

  	
   

  



 


2

















 


Tax Documents


 


NON-U.S. LENDER INSTITUTIONS:


 


I. Corporations:


If
your institution is incorporated outside of the United States for U.S. federal
income tax purposes, and is the beneficial owner of the interest and
other income it receives, you must complete one of the following three tax
forms, as applicable to your institution: a.) Form W-8BEN (Certificate of Foreign Status of Beneficial Owner), b.) Form W-8ECI (Income Effectively
Connected to a U.S. Trade or Business), or c.)  Form W-8EXP (Certificate
of Foreign Government or Governmental Agency).


 


A
U.S. taxpayer identification number is required for any institution submitting Form
W-8ECI. It is also required on Form W-8BEN for certain institutions claiming
the benefits of a tax treaty with the U.S. Please refer to the instructions
when completing the form applicable to your institution. In addition, please be
advised that U.S. tax regulations do not permit the acceptance of faxed forms. An original tax form must be submitted.


 


II. Flow-Through Entities:


If
your institution is organized outside the U.S., and is classified for U.S.
federal income tax purposes as either a Partnership, Trust, Qualified or
Non-Qualified Intermediary, or other non-U.S. flow-through entity, an original Form W-8IMY (Certificate of Foreign Intermediary, Foreign
Flow-Through Entity, or Certain U.S. Branches for United States Tax
Withholding) must be completed by the intermediary together with
a withholding statement. Flow-through entities other than Qualified Intermediaries
are required to include tax forms for each of the underlying beneficial owners.


 


Please
refer to the instructions when completing this form. In addition, please be
advised that U.S. tax regulations do not permit the acceptance of faxed forms. Original tax form(s) must be submitted.


 


U.S. LENDER INSTITUTIONS:


 


If
your institution is incorporated or organized within the United
States, you must complete and return Form W-9 (Request for Taxpayer Identification Number and
Certification). Please be advised
that we request that you submit an original Form W-9.


 


Pursuant to the
language contained in the tax section of the Credit Agreement, the applicable
tax form for your institution must be completed and returned prior to the first
payment of income. Failure to provide the proper tax form when requested may
subject your institution to U.S. tax withholding.


 


3

















 


EXHIBIT B


 


[FORM OF]


 


ASSIGNMENT AND ACCEPTANCE


 


Reference is made to the First Lien Credit Agreement
dated as of June 15, 2007 (as amended, supplemented or otherwise modified from
time to time, the “Credit Agreement”), among Specialized Technology
Resources, Inc. (successor by merger to STR Acquisition, Inc.), a Delaware
corporation (the “Borrower”),  STR Holdings LLC, a Delaware
limited liability company (“Holdings”), the lenders from time to
time party thereto (the “Lenders”) and Credit Suisse, as
administrative agent (in such capacity, the “Administrative Agent”)
and as collateral agent for the Lenders. Capitalized terms used but not
otherwise defined herein shall have the meanings set forth in the Credit
Agreement.


 


1.          The Assignor hereby sells and assigns,
without recourse, to the Assignee, and the Assignee hereby purchases and
assumes, without recourse, from the Assignor, effective as of the Effective
Date set forth below (but not prior to the registration of the information
contained herein in the Register pursuant to Section 9.04(e) of the Credit
Agreement), the interests set forth below (the “Assigned Interest”) in the Assignor’s
rights and obligations under the Credit Agreement and the other Loan Documents,
including, without limitation, the amounts and percentages set forth below of (i)
the Commitments of the Assignor on the Effective Date and (ii) the Loans owing
to the Assignor which are outstanding on the Effective Date. Each of the
Assignor and the Assignee hereby makes and agrees to be bound by all the
representations, warranties and agreements set forth in Section 9.04(c) of the
Credit Agreement, a copy of which has been received by each such party. From
and after the Effective Date (i) the Assignee shall be a party to and be bound
by the provisions of the Credit Agreement and, to the extent of the interests
assigned by this Assignment and Acceptance, have the rights and obligations of
a Lender thereunder and under the Loan Documents and (ii) the Assignor shall,
to the extent of the interests assigned by this Assignment and Acceptance,
relinquish its rights and be released from its obligations under the Credit
Agreement; provided that the
obligations of the Assignor under Section 9.16 of the Credit Agreement shall
survive the execution of this Assignment and Acceptance and the assignment of
interests effected hereby.


 


2.           This Assignment and Acceptance is
being delivered to the Administrative Agent together with (i) if the Assignee
is organized under the laws of a jurisdiction outside the United States, any
forms referred to in Section 2.20(e) of the Credit Agreement, duly completed
and executed by such Assignee, (ii) if the Assignee is not already a Lender
under the Credit Agreement, a completed Administrative Questionnaire and (iii) if
required by Section 9.04(b) of the Credit Agreement, a processing and
recordation fee of $3,500.


 


3.           This Assignment and Acceptance shall
be governed by and construed in accordance with the laws of the State of New
York.


 

















 


Date
of Assignment:


 


Legal
Name of Assignor (“Assignor”):


 


Legal
Name of Assignee (“Assignee”):


 


Effective
Date of Assignment (“Effective Date”):


 


	
  Facility/Commitment

  	
   

  	
  Principal Amount

  Assigned(1)

  	
   

  	
  Percentage Assigned of

  Commitment(1) (set forth, to at least

  8 decimals, as a percentage of the

  Facility and the aggregate

  Commitments of all Lenders

  thereunder)

  	
   

  
	
  Loans/Commitments

  	
   

  	
  $

  	
   

  	
  %

  	
   

  



 


[Remainder of page intentionally left blank]


 






(1) Amount of Commitments and/or
Loans assigned is governed by Section 9.04(b) of the Credit Agreement.


 


2

















 


	
  The terms set forth above are  hereby agreed to:

  	
   

  	
  Accepted:

  
	
   

  	
   

  	
   

  
	
                                          , as
  Assignor,

  	
   

  	
  [CREDIT SUISSE, CAYMAN ISLANDS BRANCH, as Administrative
  Agent](2),

  
	
   

  	
   

  	
   

  
	
  by:

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
  by:

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
                                          , as Assignee,

  	
   

  	
  by:

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Name:

  
	
  by:

  	
   

  	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  



 






(2) To the extent required under
the Credit Agreement.


 


3

















 


EXHIBIT C


 


[FORM OF]


 


BORROWING REQUEST


 


Credit
Suisse, as Administrative Agent


Eleven
Madison Avenue


New
York, New York 10010


 


ATTN:
Agency Group


[DATE](l)


 


Ladies
and Gentlemen:


 


The undersigned, STR ACQUISITION, INC., a Delaware
corporation (the “Borrower”), refers to the First 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, STR Holdings LLC, a Delaware limited liability
company (“Holdings”),
the lenders from time to time party thereto (the “Lenders”) and Credit
Suisse, as administrative agent (in such capacity, the “Administrative Agent”)
and as collateral agent for the Lenders. Capitalized terms used herein
and not otherwise defined herein shall have the meanings assigned to such terms
in the Credit Agreement.


 


The Borrower hereby gives you notice pursuant to Section
2.03 of the Credit Agreement that it requests a Borrowing under the Credit
Agreement, and in that connection sets forth below the terms on which such
Borrowing is requested to be made:


 


	
  (A)

  	
   

  	
  Type of Borrowing:(2)

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (B)

  	
   

  	
  Date of Borrowing:(3)

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (C)

  	
   

  	
  Account Number and Location:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (D)

  	
   

  	
  Principal Amount of Borrowing:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (E)

  	
   

  	
  Interest Period:(4)

  	
   

  	
   

  



 






	
  (1)

  	
   

  	
  Must be notified irrevocably by telephone (a) in the case of a
  Eurodollar Borrowing, not later than 12:00 noon (New York City time), three
  Business Days before a proposed Borrowing, and (b) in the case of an ABR
  Borrowing, not later than 12:00 noon (New York City time), one Business Day
  before a proposed Borrowing, in each case to be promptly confirmed by hand
  delivery or fax.

  
	
   

  	
   

  	
   

  
	
  (2)

  	
   

  	
  Specify whether such Borrowing is to be a Eurodollar Borrowing or an
  ABR Borrowing.

  
	
   

  	
   

  	
   

  
	
  (3)

  	
   

  	
  Date of Borrowing must be a Business Day.

  
	
   

  	
   

  	
   

  
	
  (4)

  	
   

  	
  If such Borrowing is to be a Eurodollar Borrowing, the Interest Period
  with respect thereto.

  



 

















 


The Borrower hereby
represents and warrants to the Administrative Agent and the Lenders that, on
the date of this Borrowing Request and on the date of the related Borrowing,
the conditions to lending specified in paragraphs (b) and (c) of Section 4.01
of the Credit Agreement have been satisfied.


 


	
   

  	
  STR ACQUISITION, INC.

  
	
   

  	
   

  
	
   

  	
  by

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


2














 


EXHIBIT D


 


[FORM OF]




FIRST LIEN GUARANTEE AND COLLATERAL AGREEMENT



















 


EXECUTION COPY


	
   

  



 


 


FIRST 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


 


	
   

  



[CS&M Ref. No. 5865-531]


 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE I

  
	
   

  	
   

  
	
  Definitions

  
	
   

  	
   

  	
   

  
	
  SECTION 1.01.

  	
  Credit
  Agreement

  	
  1

  
	
  SECTION 1.02.

  	
  Other
  Defined Terms

  	
  2

  
	
   

  	
   

  	
   

  
	
  ARTICLE II

  
	
   

  	
   

  
	
  Guarantee

  
	
   

  	
   

  	
   

  
	
  SECTION 2.01.

  	
  Guarantee

  	
  6

  
	
  SECTION 2.02.

  	
  Guarantee of
  Payment

  	
  6

  
	
  SECTION 2.03.

  	
  No
  Limitations, Etc.

  	
  7

  
	
  SECTION 2.04.

  	
  Reinstatement

  	
  8

  
	
  SECTION 2.05.

  	
  Agreement To
  Pay; Subrogation

  	
  8

  
	
  SECTION 2.06.

  	
  Information

  	
  8

  
	
   

  	
   

  	
   

  
	
  ARTICLE III

  
	
   

  	
   

  
	
  Pledge of Securities

  
	
   

  	
   

  	
   

  
	
  SECTION 3.01.

  	
  Pledge

  	
  9

  
	
  SECTION 3.02.

  	
  Delivery of the Pledged
  Collateral

  	
  9

  
	
  SECTION 3.03.

  	
  Representations,
  Warranties and Covenants

  	
  10

  
	
  SECTION 3.04.

  	
  Certification of Limited
  Liability Company Interests and Limited Partnership Interests

  	
  11

  
	
  SECTION 3.05.

  	
  Registration in Nominee
  Name; Denominations

  	
  11

  
	
  SECTION 3.06.

  	
  Voting Rights; Dividends
  and Interest, Etc.

  	
  12

  
	
   

  	
   

  	
   

  
	
  ARTICLE IV

  
	
   

  	
   

  
	
  Security Interests in Personal Property

  
	
   

  	
   

  	
   

  
	
  SECTION 4.01.

  	
  Security Interest

  	
  14

  
	
  SECTION 4.02.

  	
  Representations and Warranties

  	
  15

  
	
  SECTION 4.03.

  	
  Covenants

  	
  17

  
	
  SECTION 4.04.

  	
  Other Actions

  	
  20

  
	
  SECTION 4.05.

  	
  Covenants Regarding
  Patent, Trademark and Copyright Collateral

  	
  23

  



 

















 


	
  ARTICLE V

  
	
   

  	
   

  
	
  Remedies

  
	
   

  	
   

  	
   

  
	
  SECTION 5.01.

  	
  Remedies Upon Default

  	
  25

  
	
  SECTION 5.02.

  	
  Application of Proceeds

  	
  26

  
	
  SECTION 5.03.

  	
  Grant of License to Use
  Intellectual Property

  	
  27

  
	
  SECTION 5.04.

  	
  Securities Act, Etc.

  	
  27

  
	
   

  	
   

  	
   

  
	
  ARTICLE VI

  
	
   

  	
   

  
	
  Indemnity, Subrogation and Subordination

  
	
   

  	
   

  	
   

  
	
  SECTION 6.01.

  	
  Indemnity and Subrogation

  	
  28

  
	
  SECTION 6.02.

  	
  Contribution and Subrogation

  	
  29

  
	
  SECTION 6.03.

  	
  Subordination

  	
  29

  
	
   

  	
   

  	
   

  
	
  ARTICLE VII

  
	
   

  	
   

  
	
  Miscellaneous

  
	
   

  	
   

  	
   

  
	
  SECTION 7.01.

  	
  Notices

  	
  29

  
	
  SECTION 7.02.

  	
  Security Interest Absolute

  	
  30

  
	
  SECTION 7.03.

  	
  Survival of Agreement

  	
  30

  
	
  SECTION 7.04.

  	
  Binding Effect; Several
  Agreement

  	
  30

  
	
  SECTION 7.05.

  	
  Successors and Assigns

  	
  30

  
	
  SECTION 7.06.

  	
  Collateral Agent’s Fees
  and Expenses; Indemnification

  	
  31

  
	
  SECTION 7.07.

  	
  Collateral Agent Appointed
  Attorney-in-Fact

  	
  31

  
	
  SECTION 7.08.

  	
  Applicable Law

  	
  32

  
	
  SECTION 7.09.

  	
  Waivers; Amendment

  	
  32

  
	
  SECTION 7.10.

  	
  WAIVER OF JURY TRIAL

  	
  33

  
	
  SECTION 7.11.

  	
  Severability

  	
  33

  
	
  SECTION 7.12.

  	
  Counterparts

  	
  33

  
	
  SECTION 7.13.

  	
  Headings

  	
  33

  
	
  SECTION 7.14.

  	
  Jurisdiction; Consent to
  Service of Process

  	
  34

  
	
  SECTION 7.15.

  	
  Termination or Release

  	
  34

  
	
  SECTION 7.16.

  	
  Additional Subsidiaries

  	
  35

  
	
  SECTION 7.17.

  	
  Right of Setoff

  	
  35

  



 


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

















 


FIRST
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 the First
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.


 


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


 


ARTICLE I


 


Definitions


 


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


 


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


 

















 


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


 


“Accounts Receivable” shall mean all Accounts and all right, title and interest in any
returned goods, together with all rights, titles, securities and guarantees
with respect thereto, including any rights to stoppage in transit, replevin,
reclamation and 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 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.


 


“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,


 


2

















 


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.


 


“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.


 


3

















 


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


 


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


 


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


 


“Obligations” shall mean (a) the Loan Document Obligations and (b) the due
and punctual payment and performance of all obligations of each Loan Party
under each Hedging Agreement that (i) is in effect on the Closing Date
with a counterparty that is the Administrative Agent or a Lender or an Affiliate
of the Administrative Agent or a Lender as of the Closing Date or (ii) is
entered into after the Closing Date with any counterparty that is the
Administrative Agent or a Lender or an Affiliate of the Administrative Agent or
a Lender at the time such Hedging Agreement is entered into.


 


“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),


 


4

















 


including those listed on
Schedule III, and (b) all reissues, continuations, divisions, continuations-in-part,
renewals or extensions thereof, and the inventions disclosed or claimed therein,
including the right to make, use and/or sell the inventions disclosed or
claimed therein.


 


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


 


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


 


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


 


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


 


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


 


“Secured Parties” shall mean (a) the Lenders, (b) the Administrative Agent, (c) the
Collateral Agent, (d) any Issuing Bank, (e) each counterparty to any
Hedging Agreement with a Loan Party that either (i) is in effect on the
Closing Date if such counterparty is the Administrative Agent, a Lender or an
Affiliate of the Administrative Agent or a Lender as of the Closing Date or (ii)
is entered into after the Closing Date if such counterparty is the
Administrative Agent, a Lender or an Affiliate of the Administrative Agent or a
Lender at the time such Hedging Agreement is entered into, (f) the
beneficiaries of each indemnification obligation undertaken by any Loan Party
under any Loan Document and (g) 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.


 


5














 


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


 


ARTICLE II


 


Guarantee


 


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


 


6

















 


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, (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


 


7

















 


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, 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


 


8

















 


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 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 any and all certificates, instruments
or other documents representing or evidencing Pledged Securities.


 


9

















 


(b) Each Grantor agrees
promptly to deliver or cause to be delivered to the Collateral Agent any and
all Pledged Debt Securities.


 


(c) Upon delivery to 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.


 


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;


 


(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, will cause
any and all Pledged Collateral, whether for value paid by such Grantor or
otherwise, to be forthwith deposited with 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


 


10

















 


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 in
accordance with this Agreement, the Collateral Agent will obtain a legal, valid
and perfected first priority lien upon and security interest in 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, 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


 


11

















 


received by it with respect
to Pledged Securities in its capacity as the registered owner thereof. The
Collateral Agent shall at any time 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 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


 


12

















 


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 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, 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 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
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 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, 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.


 


13

















 


(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.


 


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

  



 


14

















 


	
     (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
such Grantor or words of similar effect, and (ii) 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.


 


15














 


(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
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


 


16

















 


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 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
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


 


17

















 


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.


 


(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).


 


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 


 


18

















 


within 30 days after the
date it has been notified by the Collateral Agent of the specific identification of such Collateral.


 


(e)  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 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.


 


19

















 


(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 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, 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, 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


 


20

















 


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 $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 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 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 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 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


 


21

















 


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
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 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, 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


 


22

















 


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.


 


(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.


 


23

















 


(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, 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.


 


24

















 


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


 


25














 


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 Agent
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.


 


SECTION 5.02. Application of Proceeds.  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 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


 


26

















 


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/Participations (the amounts so
applied to be distributed between or among the Administrative Agent, the
Swingline Lender and any Issuing Bank pro rata in accordance with the amounts
of Unfunded Advances/Participations 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 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


 


27

















 


“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 (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, 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 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.


 


28

















 


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


 


29

















 


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 the Issuing Bank and shall survive the
execution and delivery of the Loan Documents and the making of any Loans and
issuance of any Letters of Credit, regardless of any investigation made by any
Lender or Issuing Bank or on their behalf and notwithstanding that the
Collateral Agent, any Issuing Bank 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.


 


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


 


30

















 


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 Letter of Credit 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.  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, which appointment is irrevocable
and coupled with an interest. Without limiting the generality of the foregoing,
the Collateral Agent shall have the right, upon the occurrence and during the
continuance of an Event of Default, with


 


31

















 


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, any Issuing Bank 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, the
Issuing Banks 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 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


 


32

















 


generality of the foregoing, the making of a
Loan or issuance of a Letter of Credit shall not be construed as a waiver of
any Default, regardless of whether the Collateral Agent, any Lender or any
Issuing Bank 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.


 


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


 


33

















 


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, any Issuing Bank 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 or 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 Loan Document Obligations have been indefeasibly paid in full and the
Lenders have no further commitment to lend under the Credit Agreement, the
aggregate L/C Exposure has been reduced to zero (or cash collateralized on
terms reasonably acceptable to the Administrative Agent and the Issuing Bank) and
the Issuing Banks have no further obligations to issue Letters of Credit 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.


 


34

















 


(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.


 


[Remainder
of page intentionally left blank]


 


35














 


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

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Name:
  

  
	
   

  	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  CAL
  SAFETY COMPLIANCE CORPORATION,

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  by

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
  Title:

  



 


[First
Lien Guarantee and Collateral Agreement]


 

















 


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


 


	
   

  	
  STR
  ACQUISITION, INC., 

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  by

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Name:
  

  
	
   

  	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  STR
  HOLDINGS LLC, 

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  by

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Name:
  

  
	
   

  	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  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

  



 


[First
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

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Name:
  

  
	
   

  	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  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

  



 


[First
Lien Guarantee and Collateral Agreement]


 

















 


	
   

  	
  SUPPLY CHAIN CONSULTING SERVICES CORPORATION

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  by

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  /s/
  Thomas D. Vitro

  
	
   

  	
   

  	
   

  	
  Name:  Thomas D.
  Vitro

  
	
   

  	
   

  	
   

  	
  Title:  Assistant
  Secretary

  



 


[First 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

  



 


[First
Lien Guarantee and Collateral Agreement]


 














 


EXHIBIT
E


 


[FORM
OF]


 


FIRST
LIEN MORTGAGE


 

















 




 





OPEN-END MORTGAGE, ASSIGNMENT OF LEASES AND RENTS, SECURITY


AGREEMENT AND FINANCING STATEMENT


 


From


 


SPECIALIZED TECHNOLOGY RESOURCES, INC.


 


To


 


CREDIT SUISSE


 






 


Dated: June 15, 2007

Premises: Enfield, Connecticut

Hartford County


 








 





 


1

















 


THIS OPEN-END MORTGAGE, ASSIGNMENT OF LEASES AND
RENTS, SECURITY AGREEMENT AND FINANCING STATEMENT  dated as of June 15, 2007
(this “Mortgage”), by SPECIALIZED TECHNOLOGY RESOURCES, INC., a Delaware
corporation, having an office at 10 Water Street, Enfield, CT 06082-4899 (the “Mortgagor”),
to CREDIT SUISSE, having an office at Eleven Madison Avenue, New York, New York
10010 (the “Mortgagee”) as Collateral Agent for the Secured Parties (as such
terms are defined below).


 


WITNESSETH THAT:


 


Reference
is made to (i) the First Lien Credit Agreement dated as of even date
hereof (as amended, supplemented or otherwise modified from time to time, the “Credit
Agreement”), among STR Acquisition, Inc., a Delaware corporation (“Acquisition”),
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 lenders
from time to time party thereto (the “Lenders”) and Credit Suisse, as
administrative agent (in such capacity, the “Administrative Agent”) for the
Lenders, collateral agent (in such capacity, the “Collateral Agent”) for the
Secured Parties, swingline lender (in such capacity, the “Swingline Lender”) and
issuing bank (in such capacity, the “Issuing Bank”) with respect to any letters
of credit (the “Letters of Credit”) issued pursuant to the terms of the Credit
Agreement and (ii) the First Lien Guarantee and Collateral Agreement dated
as of even date hereof (as amended, supplemented or otherwise modified from
time to time, the “Guarantee and Collateral Agreement”) among Acquisition, Holdings,
the subsidiaries of Acquisition from time to time party thereto and Credit
Suisse. Capitalized terms used but not defined herein have the meanings given
to them in the Credit Agreement and the Guarantee and Collateral Agreement.


 


In
the Credit Agreement, (i) the Lenders have agreed to make term loans (the “Term
Loans”) and revolving loans (the “Revolving Loans”) to the Borrower, (ii) the
Swingline Lender has agreed to make swingline loans (the “Swingline Loans”, together
with Term Loans and Revolving Loans, the “Loans”) to the Borrower and (iii) the
Issuing Bank has issued or agreed to issue from time to time Letters of Credit
for the account of the Borrower, in each case pursuant to, upon the terms, and
subject to the conditions specified in, the Credit Agreement. Amounts paid in
respect of Term Loans may not be reborrowed. Subject to the terms of the Credit
Agreement, Borrower may borrow, prepay and reborrow Revolving Loans. The Credit
Agreement provides that the sum of the principal amount of the Loans and the
Letters of Credit from time to time outstanding and secured hereby shall not
exceed $230,000,000, comprised of (a) a Term Loan in the aggregate
principal amount not to exceed $185,000,000 to be advanced and fully funded on
the date hereof, (b) Revolving Loans in an aggregate principal amount not
to exceed $20,000,000, (c) Swingline Loans in an aggregate principal
amount not to exceed $10,000,000; and Letters of Credit in an aggregate face
amount not in excess of $15,000,000, (provided, however, that the overall limit
of all such Revolving Loans, Swingline Loans and Letters of Credit outstanding
at any time shall not exceed $20,000,000) and (d) Incremental Term Loans
and increases in the Revolving Credit


 


2

















 


Commitment
in an amount not to exceed the then available Incremental Revolving Facility
Amount in a combined aggregate principal amount not to exceed $25,000,000 at
any time.


 


Mortgagor
will be the Borrower subsequent to the merger referenced above and will derive
substantial benefit from the making of the Loans by the Lenders and the
issuance of the Letters of Credit by the Issuing Bank. In order to induce the
Lenders to make Loans and the Issuing Bank to issue Letters of Credit, the
Mortgagor has agreed to grant this Mortgage to secure, among other things, the
due and punctual payment and performance of all of the obligations of the
Borrower under the Credit Agreement.


 


The
obligations of the Lenders to make Loans and of the Issuing Bank to issue
Letters of Credit are conditioned upon, among other things, the execution and
delivery by the Mortgagor of this Mortgage in the form hereof to secure the
Obligations. As used in this Mortgage, the term “Obligations” shall mean (a) the
Loan Document Obligations and (b) the due and punctual payment and
performance of all obligations of each Loan Party under each Hedging Agreement
that (i) is in effect on the Closing Date with a counterparty that is the
Administrative Agent or a Lender or an Affiliate of the Administrative Agent or
a Lender as of the Closing Date or (ii) is entered into after the Closing
Date with any counterparty that is the Administrative Agent or a Lender or an
Affiliate of the Administrative Agent or a Lender at the time such Hedging
Agreement is entered into.


 


As
used in this Mortgage, the term “Secured Parties” shall mean (a) the
Lenders, (b) the Administrative Agent, (c) the Collateral Agent, (d) any
Issuing Bank, (e) each counterparty to any Hedging Agreement with a Loan Party
that either (i) is in effect on the Closing Date if such counterparty is
the Administrative Agent, a Lender or an Affiliate of the Administrative Agent
or a Lender as of the Closing Date or (ii) is entered into after the
Closing Date if such counterparty is the Administrative Agent, a Lender or an
Affiliate of the Administrative Agent or a Lender at the time such Hedging
Agreement is entered into, (f) the beneficiaries of each indemnification
obligation undertaken by any Loan Party under any Loan Document and (g) the
successors and assigns of each of the foregoing.


 


Pursuant
to the requirements of the Credit Agreement, the Mortgagor is granting this
Mortgage to create a lien on and a security interest in the Mortgaged Property
(as hereinafter defined) to secure the performance and payment by the Mortgagor
of the Obligations. The Credit Agreement also requires the granting by other
Loan Parties of mortgages, deeds of trust and/or deeds to secure debt (the “Other
Mortgages”) that create liens on and security interests in certain real and
personal property other than the Mortgaged Property to secure the performance
of the Obligations.


 


Granting Clauses


 


NOW,
THEREFORE, IN CONSIDERATION OF the foregoing and in order to secure the due and
punctual payment and performance of the Obligations for the benefit of the
Secured Parties, Mortgagor hereby grants, conveys, mortgages, assigns and
pledges to the Mortgagee, a mortgage lien on and a security interest in, all
the following described property (the “Mortgaged Property”) whether now owned
or held or hereafter acquired:


 


3

















 


(1)   the land more particularly described on Exhibit A hereto (the
“Land”), together with all rights appurtenant thereto, including the easements over
certain other adjoining land granted by any easement agreements, covenant or
restrictive agreements and all air rights, mineral rights, water rights, oil
and gas rights and development rights, if any, relating thereto, and also
together with all of the other easements, rights, privileges, interests, hereditaments
and appurtenances thereunto belonging or in any way appertaining and all of the
estate, right, title, interest, claim or demand whatsoever of Mortgagor therein
and in the streets and ways adjacent thereto, either in law or in equity, in
possession or expectancy, now or hereafter acquired (the “Premises”);


 


(2)   all buildings, improvements, structures, paving, parking areas, walkways
and landscaping now or hereafter erected or located upon the Land, and all
fixtures of every kind and type affixed to the Premises or attached to or
forming part of any structures, buildings or improvements and replacements
thereof now or hereafter erected or located upon the Land (the “Improvements”);


 


(3)   all apparatus, movable appliances, building materials, equipment, fittings,
furnishings, furniture, machinery and other articles of tangible personal
property of every kind and nature, and replacements thereof, now or at any time
hereafter placed upon or used in any way in connection with the use, enjoyment,
occupancy or operation of the Improvements or the Premises, including all of
Mortgagor’s books and records relating thereto and including all pumps, tanks, goods,
machinery, tools, equipment, lifts (including fire sprinklers and alarm systems,
fire prevention or control systems, cleaning rigs, air conditioning, heating, boilers,
refrigerating, electronic monitoring, water, loading, unloading, lighting, power,
sanitation, waste removal, entertainment, communications, computers, recreational,
window or structural, maintenance, truck or car repair and all other equipment
of every kind), restaurant, bar and all other indoor or outdoor furniture (including
tables, chairs, booths, serving stands, planters, desks, sofas, racks, shelves,
lockers and cabinets), bar equipment, glasses, cutlery, uniforms, linens, memorabilia
and other decorative items, furnishings, appliances, supplies, inventory, rugs,
carpets and other floor coverings, draperies, drapery rods and brackets, awnings,
venetian blinds, partitions, chandeliers and other lighting fixtures, freezers,
refrigerators, walk-in coolers, signs (indoor and outdoor), computer systems, cash
registers and inventory control systems, and all other apparatus, equipment, furniture,
furnishings, and articles used in connection with the use or operation of the
Improvements or the Premises, it being understood that the enumeration of any
specific articles of property shall in no way result in or be held to exclude
any items of property not specifically mentioned (the property referred to in
this subparagraph (3), the “Personal Property”);


 


(4)   all general intangibles owned by Mortgagor and relating to design,
development, operation, management and use of the Premises or the Improvements,
all certificates of occupancy, zoning variances, building, use or other permits,
approvals, authorizations and consents obtained from and all materials prepared
for filing or filed with any governmental agency in connection with the
development, use, operation or management of the Premises and Improvements, all
construction,


 


4














 


service,
engineering, consulting, leasing, architectural and other similar contracts
concerning the design, construction, management, operation, occupancy and/or
use of the Premises and Improvements, all architectural drawings, plans, specifications,
soil tests, feasibility studies, appraisals, environmental studies, engineering
reports and similar materials relating to any portion of or all of the Premises
and Improvements, and all payment and performance bonds or warranties or
guarantees relating to the Premises or the Improvements, all to the extent
assignable (the “Permits, Plans and Warranties”);


 


(5)   all now or hereafter existing leases or licenses (under which
Mortgagor is landlord or licensor) and subleases (under which Mortgagor is
sublandlord), concession, management, mineral or other agreements of a similar
kind that permit the use or occupancy of the Premises or the Improvements for
any purpose in return for any payment, or the extraction or taking of any gas, oil,
water or other minerals from the Premises in return for payment of any fee, rent
or royalty (collectively, “Leases”), and all agreements or contracts for the
sale or other disposition of all or any part of the Premises or the
Improvements, now or hereafter entered into by Mortgagor, together with all
charges, fees, income, issues, profits, receipts, rents, revenues or royalties
payable thereunder (“Rents”);


 


(6)   all real estate tax refunds and all proceeds of the
conversion, voluntary or involuntary, of any of the Mortgaged Property into
cash or liquidated claims (“Proceeds”), including Proceeds of insurance
maintained by the Mortgagor and condemnation awards, any awards that may become
due by reason of the taking by eminent domain or any transfer in lieu thereof
of the whole or any part of the Premises or Improvements or any rights
appurtenant thereto, and any awards for change of grade of streets, together
with any and all moneys now or hereafter on deposit for the payment of real
estate taxes, assessments or common area charges levied against the Mortgaged
Property, unearned premiums on policies of fire and other insurance maintained
by the Mortgagor covering any interest in the Mortgaged Property or required by
the Credit Agreement; and


 


(7)   all extensions, improvements, betterments, renewals, substitutes
and replacements of and all additions and appurtenances to, the Land, the
Premises, the Improvements, the Personal Property, the Permits, Plans and
Warranties and the Leases, hereinafter acquired by or released to the Mortgagor
or constructed, assembled or placed by the Mortgagor on the Land, the Premises
or the Improvements, and all conversions of the security constituted thereby, immediately
upon such acquisition, release, construction, assembling, placement or
conversion, as the case may be, and in each such case, without any further
mortgage, deed of trust, conveyance, assignment or other act by the Mortgagor, all
of which shall become subject to the lien of this Mortgage as fully and
completely, and with the same effect, as though now owned by the Mortgagor and
specifically described herein.


 


TO
HAVE AND TO HOLD the Mortgaged Property unto the Mortgagee, its successors and
assigns, for the ratable benefit of the Secured Parties, forever, subject only
to


 


5

















 


the applicable permitted Liens set forth in Section 6.02
of the Credit Agreement and to satisfaction and release as provided in Section 3.04
of this Mortgage.


 


ARTICLE I


 


Representations, Warranties and Covenants of
Mortgagor


 


Mortgagor agrees, covenants, represents and/or warrants as
follows:


 


SECTION 1.01. Title, Mortgage Lien.  (a) Mortgagor has good and marketable fee
simple title to the Mortgaged Property, subject only to the applicable
permitted Liens set forth in Section 6.02 of the Credit Agreement.


 


(b)        The
execution and delivery of this Mortgage is within Mortgagor’s corporate powers
and has been duly authorized by all necessary corporate and, if required, stockholder
action. This Mortgage has been duly executed and delivered by Mortgagor and
constitutes a legal, valid and binding obligation of Mortgagor, enforceable in
accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization,
moratorium or other laws affecting creditors’ rights generally and subject to
general principles of equity, regardless of whether considered in a proceeding
in equity or at law.


 


(c)        The
execution, delivery and recordation of this Mortgage (i) do not require
any consent or approval of, registration or filing with, or any other action by,
any Governmental Authority, except such as have been obtained or made and are
in full force and effect and except filings necessary to perfect the lien of
this Mortgage, (ii) will not violate any applicable law or regulation or
the charter, by-laws or other organizational documents of Mortgagor or any
order of any Governmental Authority, (iii) will not violate or result in a
default under any indenture, agreement or other instrument binding upon
Mortgagor or its assets, or give rise to a right thereunder to require any
payment to be made by Mortgagor, and (iv) will not result in the creation
or imposition of any Lien on any asset of Mortgagor, except the lien of this
Mortgage.


 


(d)        This
Mortgage and the Uniform Commercial Code Financing Statements described in Section 1.09
of this Mortgage, when duly recorded in the public records identified in the
Perfection Certificate will create a valid, perfected and enforceable lien upon
and security interest in all of the Mortgaged Property.


 


(e)        Mortgagor
will forever warrant and defend its title to the Mortgaged Property, the rights
of Mortgagee therein under this Mortgage and the validity and priority of the
lien of this Mortgage thereon against the claims of all persons and parties
except those having rights under the applicable permitted Liens set forth in Section 6.02
of the Credit Agreement to the extent of those rights.


 


SECTION 1.02. Credit Agreement.  This Mortgage is given pursuant to the Credit
Agreement. Mortgagor expressly covenants and agrees to pay when due, and to
timely


 


6

















 


perform,
and to cause the other Loan Parties to pay when due, and to timely perform, the
Obligations in accordance with the terms of the Loan Documents.


 


SECTION 1.03.
Payment of Taxes, and Other Obligations.  (a) Mortgagor will
pay and discharge from time to time prior to the time when the same shall
become delinquent, and before any interest or penalty accrues thereon or
attaches thereto, all Taxes and other obligations with respect to the Mortgaged
Property or any part thereof or upon the Rents from the Mortgaged Property or
arising in respect of the occupancy, use or possession thereof in accordance
with, and to the extent required by, the Credit Agreement.


 


(b) In
the event of the passage of any state, Federal, municipal or other governmental
law, order, rule or regulation subsequent to the date hereof (i) deducting
from the value of real property for the purpose of taxation any lien or
encumbrance thereon or in any manner changing or modifying the laws now in
force governing the taxation of this Mortgage or debts secured by mortgages or
deeds of trust (other than laws governing income, franchise and similar taxes
generally) or the manner of collecting taxes thereon and (ii) imposing a
tax to be paid by Mortgagee, either directly or indirectly, on this Mortgage or
any of the Loan Documents, or requiring an amount of taxes to be withheld or
deducted therefrom, Mortgagor will promptly (i) notify Mortgagee of such
event, (ii) enter into such further instruments as Mortgagee may determine
are reasonably necessary or desirable to obligate Mortgagor to make any
additional payments necessary to put the Lenders and Secured Parties in the
same financial position they would have been if such law, order, rule or
regulation had not been passed and (iii) make such additional payments to
Mortgagee for the benefit of the Lenders and Secured Parties.


 


SECTION 1.04.
Maintenance of Mortgaged Property.  Mortgagor will maintain the
Improvements and the Personal Property in the manner required by the Credit
Agreement.


 


SECTION 1.05.
Insurance.  Mortgagor will keep or cause
to be kept the Improvements and Personal Property insured against such risks, and
in the manner, described in Section 4.03(k) of the Guarantee and
Collateral Agreement and shall purchase such additional insurance as may be
required from time to time pursuant to Section 5.02 of the Credit
Agreement. Federal Emergency Management Agency Standard Flood Hazard
Determination Forms will be purchased by Mortgagor for each Mortgaged Property
on which Improvements are located. If any portion of Improvements constituting
part of the Mortgaged Property is located in an area identified as a special
flood hazard area by Federal Emergency Management Agency or other applicable
agency, Mortgagor will purchase flood insurance in an amount satisfactory to
Mortgagee, but in no event less than the maximum limit of coverage available
under the National Flood Insurance Act of 1968, as amended.


 


SECTION 1.06.
Casualty Condemnation/Eminent Domain.  Mortgagor shall give
Mortgagee prompt written notice of any casualty or other damage to the
Mortgaged Property or any proceeding for the taking of the Mortgaged Property
or any portion thereof or interest therein under power of eminent domain or by
condemnation or any similar proceeding in accordance with, and to the extent
required by, the Credit Agreement. Any Net Cash Proceeds received by or on
behalf of the Mortgagor in respect of any such casualty, damage or taking shall
constitute trust funds held by the Mortgagor for the benefit of the Secured


 


7

















 


Parties
to be applied to repair, restore or replace the Mortgaged Property or, if an
Asset Sale shall occur with respect to any such Net Cash Proceeds, to be
applied in accordance with Section 2.13 of the Credit Agreement.


 


SECTION 1.07.
Assignment of Leases and Rents.  (a) Mortgagor
hereby irrevocably and absolutely grants, transfers and assigns all of its
right title and interest in all Leases, together with any and all extensions
and renewals thereof for purposes of securing and discharging the performance
by Mortgagor of the Obligations. Mortgagor has not assigned or executed any
assignment of, and will not assign or execute any assignment of, any Leases or
the Rents payable thereunder to anyone other than Mortgagee.


 


(b)        All Leases shall be
subordinate to the lien of this Mortgage. Mortgagor will not enter into, modify
or amend any Lease if such Lease, as entered into, modified or amended, will
not be subordinate to the lien of this Mortgage.


 


(c)        Subject to Section 1.07(d),
Mortgagor has assigned and transferred to Mortgagee all of Mortgagor’s right, title
and interest in and to the Rents now or hereafter arising from each Lease
heretofore or hereafter made or agreed to by Mortgagor, it being intended that
this assignment establish, subject to Section 1.07(d), an absolute
transfer and assignment of all Rents and all Leases to Mortgagee and not merely
to grant a security interest therein. Subject to Section 1.07(d), Mortgagee
may in Mortgagor’s name and stead (with or without first taking possession of
any of the Mortgaged Property personally or by receiver as provided herein) operate
the Mortgaged Property and rent, lease or let all or any portion of any of the
Mortgaged Property to any party or parties at such rental and upon such terms
as Mortgagee shall, in its sole discretion, determine, and may collect and have
the benefit of all of said Rents arising from or accruing at any time
thereafter or that may thereafter become due under any Lease.


 


(d)        So long as an Event of
Default shall not have occurred and be continuing, Mortgagee will not exercise
any of its rights under Section 1.07(c), and Mortgagor shall receive and
collect the Rents accruing under any Lease; but after the happening and during
the continuance of any Event of Default, Mortgagee may, at its option, receive
and collect all Rents and enter upon the Premises and Improvements through its
officers, agents, employees or attorneys for such purpose and for the operation
and maintenance thereof. Mortgagor hereby irrevocably authorizes and directs
each tenant, if any, and each successor, if any, to the interest of any tenant
under any Lease, respectively, to rely upon any notice of a claimed Event of
Default sent by Mortgagee to any such tenant or any of such tenant’s successors
in interest, and thereafter to pay Rents to Mortgagee without any obligation or
right to inquire as to whether an Event of Default actually exists and even if
some notice to the contrary is received from the Mortgagor, who shall have no
right or claim against any such tenant or successor in interest for any such
Rents so paid to Mortgagee. Each tenant or any of such tenant’s successors in
interest from whom Mortgagee or any officer, agent, attorney or employee of
Mortgagee shall have collected any Rents, shall be authorized to pay Rents to
Mortgagor only after such tenant or any of their successors in interest shall
have received written notice from Mortgagee that the Event of Default is no
longer continuing, unless and until a further notice of an Event of Default is
given by Mortgagee to such tenant or any of its successors in interest.


 


8

















 


(e)       Mortgagee will not
become a mortgagee in possession so long as it does not enter or take actual
possession of the Mortgaged Property. In addition, Mortgagee shall not be
responsible or liable for performing any of the obligations of the landlord
under any Lease, for any waste by any tenant, or others, for any dangerous or
defective conditions of any of the Mortgaged Property, for negligence in the
management, upkeep, repair or control of any of the Mortgaged Property or any
other act or omission by any other person.


 


(f)       Mortgagor shall furnish
to Mortgagee, within 30 days after a request by Mortgagee to do so, a written
statement containing the names of all tenants, subtenants and concessionaires
of the Premises or Improvements, the terms of any Lease, the space occupied and
the rentals and/or other amounts payable thereunder.


 


SECTION 1.08.
Restrictions on Transfers and Encumbrances.  Mortgagor shall not directly
or indirectly sell, convey, alienate, assign, lease, sublease, license, mortgage,
pledge, encumber or otherwise transfer, create, consent to or suffer the
creation of any lien, charge or other form of encumbrance upon any interest in
or any part of the Mortgaged Property, or be divested of its title to the
Mortgaged Property or any interest therein in any manner or way, whether
voluntarily or involuntarily (other than resulting from a condemnation), or
engage in any common, cooperative, joint, time-sharing or other congregate
ownership of all or part thereof, except in each case in accordance with and to
the extent permitted by the Credit Agreement; provided, that Mortgagor may, in the ordinary course of business and in
accordance with reasonable commercial standards, enter into easement or
covenant agreements that relate to and/or benefit the operation of the
Mortgaged Property and that do not materially and adversely affect the value, use
or operation of the Mortgaged Property. If any of the foregoing transfers or
encumbrances results in an Asset Sale, any Net Cash Proceeds received by or on
behalf of the Mortgagor in respect thereof shall constitute trust funds to be
held by the Mortgagor for the benefit of the Secured Parties and applied in
accordance with Section 2.13 of the Credit Agreement.


 


SECTION 1.09.
Security Agreement.  This Mortgage is both a
mortgage of real property and a grant of a security interest in personal
property, and shall constitute and serve as a “Security Agreement” within the
meaning of the uniform commercial code as adopted in the state wherein the
Premises are located (“UCC”). Mortgagor has hereby granted unto Mortgagee a
security interest in and to all the Mortgaged Property described in this
Mortgage that is not real property, and simultaneously with the recording of
this Mortgage, Mortgagor has filed or will file UCC financing statements, and
will file continuation statements prior to the lapse thereof, at the
appropriate offices in the jurisdiction of formation of the Mortgagor to
perfect the security interest granted by this Mortgage in all the Mortgaged
Property that is not real property. Mortgagor hereby appoints Mortgagee as its
true and lawful attorney-in-fact and agent, for Mortgagor and in its name, place
and stead, in any and all capacities, to execute any document and to file the
same in the appropriate offices (to the extent it may lawfully do so), and to
perform each and every act and thing reasonably requisite and necessary to be
done to perfect the security interest contemplated by the preceding sentence. Mortgagee
shall have all rights with respect to the part of the Mortgaged Property that
is the subject of a security interest afforded by the UCC in addition to, but
not in limitation of, the other rights afforded Mortgagee hereunder and under
the Guarantee and Collateral Agreement.


 


9

















 


SECTION 1.10.
Filing and Recording.  Mortgagor will cause this
Mortgage, the UCC financing statements referred to in Section 1.09, any
other security instrument creating a security interest in or evidencing the
lien hereof upon the Mortgaged Property and each UCC continuation statement and
instrument of further assurance to be filed, registered or recorded and, if
necessary, refiled, rerecorded and reregistered, in such manner and in such
places as may be required by any present or future law in order to publish
notice of and fully to perfect the lien hereof upon, and the security interest
of Mortgagee in, the Mortgaged Property until this Mortgage is terminated and
released in full in accordance with Section 3.04 hereof. Mortgagor will
pay all filing, registration and recording fees, all Federal, state, county and
municipal recording, documentary or intangible taxes and other taxes, duties, imposts,
assessments and charges, and all reasonable expenses incidental to or arising
out of or in connection with the execution, delivery and recording of this
Mortgage, UCC continuation statements any mortgage supplemental hereto, any
security instrument with respect to the Personal Property, Permits, Plans and
Warranties and Proceeds or any instrument of further assurance.


 


SECTION 1.11.
Further Assurances.  Upon demand by Mortgagee, Mortgagor
will, at the cost of Mortgagor and without expense to Mortgagee, do, execute, acknowledge
and deliver all such further acts, deeds, conveyances, mortgages, assignments, notices
of assignment, transfers and assurances as Mortgagee shall from time to time
reasonably require for the better assuring, conveying, assigning, transferring
and confirming unto Mortgagee the property and rights hereby conveyed or assigned
or intended now or hereafter so to be, or which Mortgagor may be or may
hereafter become bound to convey or assign to Mortgagee, or for carrying out
the intention or facilitating the performance of the terms of this Mortgage, or
for filing, registering or recording this Mortgage, and on demand, Mortgagor
will also execute and deliver and hereby appoints Mortgagee as its true and
lawful attorney-in-fact and agent, for Mortgagor and in its name, place and
stead, in any and all capacities, to execute and file to the extent it may
lawfully do so, one or more financing statements, chattel mortgages or
comparable security instruments reasonably requested by Mortgagee to evidence
more effectively the lien hereof upon the Personal Property and to perform each
and every act and thing requisite and necessary to be done to accomplish the
same.


 


SECTION 1.12.
Additions to Mortgaged Property.  All right, title and
interest of Mortgagor in and to all extensions, improvements, betterments, renewals,
substitutes and replacements of, and all additions and appurtenances to, the
Mortgaged Property hereafter acquired by or released to Mortgagor or
constructed, assembled or placed by Mortgagor upon the Premises or the
Improvements, and all conversions of the security constituted thereby, immediately
upon such acquisition, release, construction, assembling, placement or
conversion, as the case may be, and in each such case without any further
mortgage, conveyance, assignment or other act by Mortgagor, shall become
subject to the lien and security interest of this Mortgage as fully and
completely and with the same effect as though now owned by Mortgagor and
specifically described in the grant of the Mortgaged Property above, but at any
and all times Mortgagor will execute and deliver to Mortgagee any and all such
further assurances, mortgages, conveyances or assignments thereof as Mortgagee
may reasonably require for the purpose of expressly and specifically subjecting
the same to the lien and security interest of this Mortgage.


 


10

















 


SECTION 1.13.
No Claims Against Mortgagee.  Nothing contained in this
Mortgage shall constitute any consent or request by Mortgagee, express or
implied, for the performance of any labor or services or the furnishing of any
materials or other property in respect of the Mortgaged Property or any part
thereof, nor as giving Mortgagor any right, power or authority to contract for
or permit the performance of any labor or services or the furnishing of any materials
or other property in such fashion as would permit the making of any claim
against Mortgagee in respect thereof.


 


SECTION 1.14.
Fixture Filing.  (a) Certain portions of the
Mortgaged Property are or will become “fixtures” (as that term is defined in
the UCC) on the Land, and this Mortgage, upon being filed for record in the
real estate records of the county wherein such fixtures are situated, shall
operate also as a financing statement filed as a fixture filing in accordance
with the applicable provisions of said UCC upon such portions of the Mortgaged
Property that are or become fixtures.


 


(b) The
real property to which the fixtures relate is described in Exhibit A
attached hereto. The record owner of the real property described in Exhibit A
attached hereto is Mortgagor. The name, type of organization and jurisdiction
of organization of the debtor for purposes of this financing statement are the
name, type of organization and jurisdiction of organization of the Mortgagor
set forth in the first paragraph of this Mortgage, and the name of the secured
party for purposes of this financing statement is the name of the Mortgagee set
forth in the first paragraph of this Mortgage. The mailing address of the
Mortgagor/debtor is the address of the Mortgagor set forth in the first
paragraph of this Mortgage. The mailing address of the Mortgagee/secured party
from which information concerning the security interest hereunder may be
obtained is the address of the Mortgagee set forth in the first paragraph of
this Mortgage. Mortgagor’s organizational identification number is 2576119.


 


ARTICLE II


 


Defaults and Remedies


 


SECTION 2.01.
Events of Default.  Any Event of Default under
the Credit Agreement (as such term is defined therein) shall constitute an
Event of Default under this Mortgage.


 


SECTION 2.02.
Demand for Payment.  If an Event of Default shall
occur and be continuing, then, upon written demand of Mortgagee, Mortgagor will
pay to Mortgagee all amounts due hereunder and under the Credit Agreement and
the Guarantee and Collateral Agreement and such further amount as shall be
sufficient to cover the costs and expenses of collection, including attorneys’ fees,
disbursements and expenses incurred by Mortgagee, and Mortgagee shall be
entitled and empowered to institute an action or proceedings at law or in
equity for the collection of the sums so due and unpaid, to prosecute any such
action or proceedings to judgment or final decree, to enforce any such judgment
or final decree against Mortgagor and to collect, in any manner provided by law,
all moneys adjudged or decreed to be payable.


 


11

















 


SECTION 2.03.
Rights To Take Possession, Operate and Apply
Revenues.  (a) If an Event of Default shall
occur and be continuing, Mortgagor shall, upon demand of Mortgagee, forthwith
surrender to Mortgagee actual possession of the Mortgaged Property and, if and
to the extent not prohibited by applicable law, Mortgagee itself, or by such
officers or agents as it may appoint, may then enter and take possession of all
the Mortgaged Property without the appointment of a receiver or an application
therefor, exclude Mortgagor and its agents and employees wholly therefrom, and
have access to the books, papers and accounts of Mortgagor.


 


(b)        If Mortgagor shall for
any reason fail to surrender or deliver the Mortgaged Property or any part
thereof after such demand by Mortgagee, Mortgagee may to the extent not
prohibited by applicable law, obtain a judgment or decree conferring upon
Mortgagee the right to immediate possession or requiring Mortgagor to deliver
immediate possession of the Mortgaged Property to Mortgagee, to the entry of
which judgment or decree Mortgagor hereby specifically consents. Mortgagor will
pay to Mortgagee, upon demand, all reasonable expenses of obtaining such
judgment or decree, including reasonable compensation to Mortgagee’s attorneys
and agents with interest thereon at the rate per annum applicable to overdue
amounts under the Credit Agreement as provided in Section 2.07 of the
Credit Agreement (the “Interest Rate”); and all such expenses and compensation
shall, until paid, be secured by this Mortgage.


 


(c)        Upon every such entry
or taking of possession, Mortgagee may, to the extent not prohibited by
applicable law, hold, store, use, operate, manage and control the Mortgaged
Property, conduct the business thereof and, from time to time, (i) make
all necessary and proper maintenance, repairs, renewals, replacements, additions,
betterments and improvements thereto and thereon, (ii) purchase or
otherwise acquire additional fixtures, personalty and other property, (iii) insure
or keep the Mortgaged Property insured, (iv) manage and operate the
Mortgaged Property and exercise all the rights and powers of Mortgagor to the
same extent as Mortgagor could in its own name or otherwise with respect to the
same, or (v) enter into any and all agreements with respect to the
exercise by others of any of the powers herein granted Mortgagee, all as may
from time to time be directed or determined by Mortgagee to be in its best
interest and Mortgagor hereby appoints Mortgagee as its true and lawful
attorney-in-fact and agent, for Mortgagor and in its name, place and stead, in
any and all capacities, to perform any of the foregoing acts. Mortgagee may
collect and receive all the Rents, issues, profits and revenues from the
Mortgaged Property, including those past due as well as those accruing
thereafter, and, after deducting (i) all expenses of taking, holding, managing
and operating the Mortgaged Property (including compensation for the services
of all persons employed for such purposes), (ii) the costs of all such
maintenance, repairs, renewals, replacements, additions, betterments, improvements,
purchases and acquisitions, (iii) the costs of insurance, (iv) such
taxes, assessments and other similar charges as Mortgagee may at its option pay,
(v) other proper charges upon the Mortgaged Property or any part thereof
and (vi) the compensation, expenses and disbursements of the attorneys and
agents of Mortgagee, Mortgagee shall apply the remainder of the moneys and
proceeds so received first to the payment of the Mortgagee for the satisfaction
of the Obligations, and second, if there is any surplus, to Mortgagor, subject
to the entitlement of others thereto under applicable law.


 


12

















 


(d)        Whenever, before any
sale of the Mortgaged Property under Section 2.06, all Obligations that
are then due shall have been paid and all Events of Default fully cured, Mortgagee
will surrender possession of the Mortgaged Property back to Mortgagor, its
successors or assigns. The same right of taking possession shall, however, arise
again if any subsequent Event of Default shall occur and be continuing.


 


SECTION 2.04.
Right To Cure Mortgagor’s Failure to Perform.  Should Mortgagor fail in the
payment, performance or observance of any term, covenant or condition required
by this Mortgage or the Credit Agreement (with respect to the Mortgaged
Property), Mortgagee may pay, perform or observe the same, and all payments
made or costs or expenses incurred by Mortgagee in connection therewith shall
be secured hereby and shall be, without demand, immediately repaid by Mortgagor
to Mortgagee with interest thereon at the Interest Rate. Mortgagee shall be the
judge using reasonable discretion of the necessity for any such actions and of
the amounts to be paid. Mortgagee is hereby empowered to enter and to authorize
others to enter upon the Premises or the Improvements or any part thereof for the
purpose of performing or observing any such defaulted term, covenant or
condition without having any obligation to so perform or observe and without
thereby becoming liable to Mortgagor, to any person in possession holding under
Mortgagor or to any other person.


 


SECTION 2.05.
Right to a Receiver.  If an Event of Default shall
occur and be continuing, Mortgagee, upon application to a court of competent
jurisdiction, shall be entitled as a matter of right to the appointment of a
receiver to take possession of and to operate the Mortgaged Property and to
collect and apply the Rents. The receiver shall have all of the rights and
powers permitted under the laws of the state wherein the Mortgaged Property is
located. Mortgagor shall pay to Mortgagee upon demand all reasonable expenses, including
receiver’s fees, reasonable attorney’s fees and disbursements, costs and agent’s
compensation incurred pursuant to the provisions of this Section 2.05; and
all such expenses shall be secured by this Mortgage and shall be, without
demand, immediately repaid by Mortgagor to Mortgagee with interest thereon at
the Interest Rate.


 


SECTION 2.06.
Foreclosure and Sale.  (a) If an Event of
Default shall occur and be continuing, Mortgagee may elect to sell the
Mortgaged Property or any part of the Mortgaged Property by exercise of the
power of foreclosure or of sale granted to Mortgagee by applicable law or this
Mortgage. In such case, Mortgagee may commence a civil action to foreclose this
Mortgage, or it may proceed and sell the Mortgaged Property to satisfy any
Obligation. Mortgagee or an officer appointed by a judgment of foreclosure to
sell the Mortgaged Property, may sell all or such parts of the Mortgaged
Property as may be chosen by Mortgagee at the time and place of sale fixed by
it in a notice of sale, either as a whole or in separate lots, parcels or items
as Mortgagee shall deem expedient, and in such order as it may determine, at
public auction to the highest bidder. Mortgagee or an officer appointed by a
judgment of foreclosure to sell the Mortgaged Property may postpone any
foreclosure or other sale of all or any portion of the Mortgaged Property by
public announcement at such time and place of sale, and from time to time
thereafter may postpone such sale by public announcement or subsequently
noticed sale. Without further notice, Mortgagee or an officer appointed to sell
the Mortgaged Property may make such sale at the time fixed by the last
postponement, or may, in its discretion, give a new notice of sale. Any person,
including Mortgagor or Mortgagee or any designee or affiliate thereof, may
purchase at such sale.


 


13

















 


(b)        The Mortgaged Property
may be sold subject to unpaid taxes and the applicable permitted Liens set forth
in Section 6.02 of the Credit Agreement, and, after deducting all costs, fees
and expenses of Mortgagee (including costs of evidence of title in connection
with the sale), Mortgagee or an officer that makes any sale shall apply the
proceeds of sale in the manner set forth in Section 2.08.


 


(c)        Any foreclosure or
other sale of less than the whole of the Mortgaged Property or any defective or
irregular sale made hereunder shall not exhaust the power of foreclosure or of
sale provided for herein; and subsequent sales may be made hereunder until the
Obligations have been satisfied, or the entirety of the Mortgaged Property has
been sold.


 


(d)        If an Event of Default
shall occur and be continuing, Mortgagee may instead of, or in addition to, exercising
the rights described in Section 2.06(a) above and either with or
without entry or taking possession as herein permitted, proceed by a suit or
suits in law or in equity or by any other appropriate proceeding or remedy (i) to
specifically enforce payment of some or all of the Obligations, or the
performance of any term, covenant, condition or agreement of this Mortgage or
any other Loan Document or any other right, or (ii) to pursue any other
remedy available to Mortgagee, all as Mortgagee shall determine most effectual
for such purposes.


 


SECTION 2.07.
Other Remedies.  (a) In case
an Event of Default shall occur and be continuing, Mortgagee may also exercise,
to the extent not prohibited by law, any or all of the remedies available to a
secured party under the UCC.


 


(b)        In connection with a
sale of the Mortgaged Property or any Personal Property and the application of
the proceeds of sale as provided in Section 2.08, Mortgagee shall be
entitled to enforce payment of and to receive up to the principal amount of the
Obligations, plus all other charges, payments and costs due under this Mortgage,
and to recover a deficiency judgment for any portion of the aggregate principal
amount of the Obligations remaining unpaid, with interest.


 


SECTION 2.08.
Application of Sale Proceeds and Rents.  After any foreclosure sale of all or any of
the Mortgaged Property, Mortgagee shall receive and apply the proceeds of the
sale together with any Rents that may have been collected and any other sums
that then may be held by Mortgagee under this Mortgage as follows:


 


FIRST, to the payment of all costs and expenses incurred by the
Mortgagee, the Administrative Agent or the Collateral Agent (in their
respective capacities as such hereunder or under any other Loan Document) in
connection with such collection, sale, foreclosure or realization or otherwise
in connection with this Mortgage, 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 Mortgagee, the
Administrative Agent and/or the Collateral Agent hereunder or under any other
Loan Document on behalf of Mortgagor or 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;


 


14














 


SECOND, to the payment in full of Unfunded Advances/Participations (the
amounts so applied to be distributed between or among the Administrative Agent,
the Swingline Lender and any Issuing Bank pro rata in accordance with the
amounts of Unfunded Advances/Participations 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 Mortgagor, its successors or assigns, or as a court of
competent jurisdiction may otherwise direct.


 


The
Mortgagee shall have absolute discretion as to the time of application of any
such proceeds, moneys or balances in accordance with this Mortgage. Upon any
sale of the Mortgaged Property by the Mortgagee (including pursuant to a power
of sale granted by statute or under a judicial proceeding), the receipt of the
Mortgagee or of the officer making the sale shall be a sufficient discharge to
the purchaser or purchasers of the Mortgaged Property 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 Mortgagee or such officer or be
answerable in any way for the misapplication thereof.


 


SECTION 2.09.
Mortgagor as Tenant Holding Over.  If Mortgagor remains in
possession of any of the Mortgaged Property after any foreclosure sale by
Mortgagee, at Mortgagee’s election Mortgagor shall be deemed a tenant holding
over and shall forthwith surrender possession to the purchaser or purchasers at
such sale or be summarily dispossessed or evicted according to provisions of
law applicable to tenants holding over.


 


SECTION 2.10.
Waiver of Appraisement, Valuation, Stay, Extension and Redemption Laws.  Mortgagor
waives, to the extent not prohibited by law, (i) the benefit of all laws
now existing or that hereafter may be enacted (x) providing for any
appraisement or valuation of any portion of the Mortgaged Property and/or
(y) in any way extending the time for the enforcement or the collection of
amounts due under any of the Obligations or creating or extending a period of
redemption from any sale made in collecting said debt or any other amounts due
Mortgagee, (ii) any right to at any time insist upon, plead, claim or take
the benefit or advantage of any law now or hereafter in force providing for any
homestead exemption, stay, statute of limitations, extension or redemption, or
sale of the Mortgaged Property as separate tracts, units or estates or as a
single parcel in the event of foreclosure or notice of deficiency, and
(iii) all rights of redemption, valuation, appraisement, stay of
execution, notice of election to mature or declare due the whole of or each of
the Obligations and marshaling in the event of foreclosure of this Mortgage.


 


SECTION 2.11.
Discontinuance of Proceedings.  In case Mortgagee shall
proceed to enforce any right, power or remedy under this Mortgage by
foreclosure, entry or otherwise, and such proceedings shall be discontinued or
abandoned for any reason, or shall be determined adversely to Mortgagee, then
and in every such case Mortgagor and Mortgagee


 


15

















 


shall
be restored to their former positions and rights hereunder, and all rights,
powers and remedies of Mortgagee shall continue as if no such proceeding had
been taken.


 


SECTION 2.12.
Suits To Protect the Mortgaged Property.  Mortgagee shall have power
(a) to institute and maintain suits and proceedings to prevent any
impairment of the Mortgaged Property by any acts that may be unlawful or in
violation of this Mortgage, (b) to preserve or protect its interest in the
Mortgaged Property and in the Rents arising therefrom and (c) to restrain
the enforcement of or compliance with any legislation or other governmental
enactment, rule or order that may be unconstitutional or otherwise invalid
if the enforcement of or compliance with such enactment, rule or order
would impair the security or be prejudicial to the interest of Mortgagee
hereunder.


 


SECTION 2.13.
Filing Proofs of Claim.  In case of any receivership,
insolvency, bankruptcy, reorganization, arrangement, adjustment, composition or
other proceedings affecting Mortgagor, Mortgagee shall, to the extent permitted
by law, be entitled to file such proofs of claim and other documents as may be
necessary or advisable in order to have the claims of Mortgagee allowed in such
proceedings for the Obligations secured by this Mortgage at the date of the
institution of such proceedings and for any interest accrued, late charges and
additional interest or other amounts due or that may become due and payable
hereunder after such date.


 


SECTION 2.14.
Possession by Mortgagee.  Notwithstanding the
appointment of any receiver, liquidator or trustee of Mortgagor, any of its
property or the Mortgaged Property, Mortgagee shall be entitled, to the extent
not prohibited by law, to remain in possession and control of all parts of the
Mortgaged Property now or hereafter granted under this Mortgage to Mortgagee in
accordance with the terms hereof and applicable law.


 


SECTION 2.15.
Waiver. (a) No delay or failure by
Mortgagee to exercise any right, power or remedy accruing upon any breach or
Event of Default shall exhaust or impair any such right, power or remedy or be
construed to be a waiver of any such breach or Event of Default or acquiescence
therein; and every right, power and remedy given by this Mortgage to Mortgagee
may be exercised from time to time and as often as may be deemed expedient by
Mortgagee. No consent or waiver by Mortgagee to or of any breach or Event of
Default by Mortgagor in the performance of the Obligations shall be deemed or
construed to be a consent or waiver to or of any other breach or Event of
Default in the performance of the same or of any other Obligations by Mortgagor
hereunder. No failure on the part of Mortgagee to complain of any act or
failure to act or to declare an Event of Default, irrespective of how long such
failure continues, shall constitute a waiver by Mortgagee of its rights
hereunder or impair any rights, powers or remedies consequent on any future
Event of Default by Mortgagor.


 


(b) Even
if Mortgagee (i) grants some forbearance or an extension of time for the
payment of any sums secured hereby, (ii) takes other or additional
security for the payment of any sums secured hereby, (iii) waives or does
not exercise some right granted herein or under the Loan Documents,
(iv) releases a part of the Mortgaged Property from this Mortgage,
(v) agrees to change some of the terms, covenants, conditions or
agreements of any of the Loan Documents, (vi) consents to the filing of a
map, plat or replat affecting the


 


16

















 


Premises,
(vii) consents to the granting of an easement or other right affecting the
Premises or (viii) makes or consents to an agreement subordinating
Mortgagee’s lien on the Mortgaged Property hereunder; no such act or omission
shall preclude Mortgagee from exercising any other right, power or privilege
herein granted or intended to be granted in the event of any breach or Event of
Default then made or of any subsequent default; nor, except as otherwise
expressly provided in an instrument executed by Mortgagee, shall this Mortgage
be altered thereby. In the event of the sale or transfer by operation of law or
otherwise of all or part of the Mortgaged Property, Mortgagee is hereby
authorized and empowered to deal with any vendee or transferee with reference
to the Mortgaged Property secured hereby, or with reference to any of the
terms, covenants, conditions or agreements hereof, as fully and to the same
extent as it might deal with the original parties hereto and without in any way
releasing or discharging any liabilities, obligations or undertakings.


 


SECTION 2.16.
Waiver of Trial by Jury. To the fullest extent permitted by applicable
law, Mortgagor and Mortgagee each hereby irrevocably and unconditionally waive
trial by jury in any action, claim, suit or proceeding relating to this
Mortgage and for any counterclaim brought therein. Mortgagor hereby waives all
rights to interpose any counterclaim in any suit brought by Mortgagee hereunder
and all rights to have any such suit consolidated with any separate suit,
action or proceeding.


 


SECTION 2.17.
Remedies Cumulative. No right, power or remedy conferred upon or
reserved to Mortgagee by this Mortgage is intended to be exclusive of any other
right, power or remedy, and each and every such right, power and remedy shall
be cumulative and concurrent and in addition to any other right, power and
remedy given hereunder or now or hereafter existing at law or in equity or by
statute.


 


ARTICLE III


 


Miscellaneous


 


SECTION 3.01.
Partial Invalidity. In the event any one or more of the provisions
contained in this Mortgage shall for any reason be held to be invalid, illegal
or unenforceable in any respect, such validity, illegality or unenforceability
shall, at the option of Mortgagee, not affect any other provision of this
Mortgage, and this Mortgage shall be construed as if such invalid, illegal or
unenforceable provision had never been contained herein or therein.


 


SECTION 3.02.
Notices. All notices and communications hereunder shall be in writing
and given to Mortgagor in accordance with the terms of the Credit Agreement at
the address set forth on the first page of this Mortgage and to the
Mortgagee as provided in the Credit Agreement.


 


SECTION 3.03.
Successors and Assigns. All of the grants, covenants, terms, provisions
and conditions herein shall run with the Premises and the Improvements and
shall apply to, bind and inure to, the benefit of the permitted successors and
assigns of Mortgagor and the successors and assigns of Mortgagee.


 


17

















 


SECTION 3.04.
Satisfaction and Cancelation. (a) The conveyance
to Mortgagee of the Mortgaged Property as security created and consummated by
this Mortgage shall terminate and be null and void when all the Obligations
have been indefeasibly paid in full in accordance with the terms of the Loan
Documents and the Lenders have no further commitment to lend under the Credit
Agreement, the aggregate L/C Exposure has been reduced to zero and the Issuing
Banks have no further obligations to issue Letters of Credit under the Credit
Agreement.


 


(b) Mortgagor shall automatically be released from its obligations
hereunder upon the consummation of any transaction permitted by the Credit
Agreement as a result of which such Mortgagor ceases to be a Subsidiary.


 


(c) Upon any sale or other transfer by Mortgagor of any Collateral
that is permitted under the Credit Agreement to any person that is not the
Borrower or a Mortgagor, 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 Mortgagee shall promptly execute
and deliver to Mortgagor at such Mortgagor’s expense, all Uniform Commercial
Code termination statements and similar documents that such Mortgagor shall
reasonably request to evidence such termination or release. Any execution and
delivery of documents pursuant to this Section shall be without recourse
to or representation or warranty by the Mortgagee or any Secured Party. Without
limiting the provisions of Section 7.06 of the Guarantee and Collateral Agreement,
the Borrower shall reimburse the Mortgagee 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.


 


SECTION 3.05.
Definitions.  As used in this Mortgage, the singular shall
include the plural as the context requires and the following words and phrases
shall have the following meanings: (a) “including” shall mean “including
but not limited to”; (b) “provisions” shall mean “provisions, terms,
covenants and/or conditions”; (c) “lien” shall mean “lien, charge,
encumbrance, security interest, mortgage or deed of trust”;
(d) “obligation” shall mean “obligation, duty, covenant and/or condition”;
and (e) “any of the Mortgaged Property” shall mean “the Mortgaged Property
or any part thereof or interest therein”. Any act that Mortgagee is permitted
to perform hereunder may be performed at any time and from time to time by
Mortgagee or any person or entity designated by Mortgagee. Any act that is prohibited
to Mortgagor hereunder is also prohibited to all lessees of any of the
Mortgaged Property. Each appointment of Mortgagee as attorney-in-fact for
Mortgagor under the Mortgage is irrevocable, with power of substitution and
coupled with an interest. Subject to the applicable provisions hereof,
Mortgagee has the right to refuse to grant its consent, approval or acceptance
or to indicate its satisfaction, in its sole discretion, whenever such consent,
approval, acceptance or satisfaction is required hereunder.


 


SECTION 3.06.
Multisite Real Estate Transaction.  Mortgagor acknowledges that
this Mortgage is one of a number of Other Mortgages and Security Documents that
secure


 


18

















 


the
Obligations. Mortgagor agrees that the lien of this Mortgage shall be absolute
and unconditional and shall not in any manner be affected or impaired by any
acts or omissions whatsoever of Mortgagee, and without limiting the generality
of the foregoing, the lien hereof shall not be impaired by any acceptance by
the Mortgagee of any security for or guarantees of any of the Obligations
hereby secured, or by any failure, neglect or omission on the part of Mortgagee
to realize upon or protect any Obligation or indebtedness hereby secured or any
collateral security therefor including the Other Mortgages and other Security
Documents. The lien hereof shall not in any manner be impaired or affected by
any release (except as to the property released), sale, pledge, surrender,
compromise, settlement, renewal, extension, indulgence, alteration, changing,
modification or disposition of any of the Obligations secured or of any of the
collateral security therefor, including the Other Mortgages and other Security
Documents or of any guarantee thereof, and Mortgagee may at its discretion
foreclose, exercise any power of sale, or exercise any other remedy available
to it under any or all of the Other Mortgages and other Security Documents
without first exercising or enforcing any of its rights and remedies hereunder.
Such exercise of Mortgagee’s rights and remedies under any or all of the Other
Mortgages and other Security Documents shall not in any manner impair the
indebtedness hereby secured or the lien of this Mortgage and any exercise of
the rights or remedies of Mortgagee hereunder shall not impair the lien of any
of the Other Mortgages and other Security Documents or any of Mortgagee’s
rights and remedies thereunder. Mortgagor specifically consents and agrees that
Mortgagee may exercise its rights and remedies hereunder and under the Other
Mortgages and other Security Documents separately or concurrently and in any
order that it may deem appropriate and waives any rights of subrogation.


 


SECTION 3.07.
No Oral Modification.  This Mortgage may not be changed
or terminated orally. Any agreement made by Mortgagor and Mortgagee after the
date of this Mortgage relating to this Mortgage shall be superior to the rights
of the holder of any intervening or subordinate Mortgage, lien or encumbrance.


 


ARTICLE IV




Particular Provisions


 


This
Mortgage is subject to the following provisions relating to the particular laws
of the state wherein the Premises are located:


 


SECTION 4.01.
Applicable Law; Certain Particular Provisions.  This Mortgage
shall be governed by and construed in accordance with the internal law of the
state where the Mortgaged Property is located, except that Mortgagor expressly
acknowledges that by their terms, the Credit Agreement and other Loan Documents
(aside from those Other Mortgages to be recorded outside New York) shall be
governed by the internal law of the State of New York, without regard to
principles of conflict of law. Mortgagor and Mortgagee agree to submit to
jurisdiction and the laying of venue for any suit on this Mortgage in the state
where the Mortgaged Property is located.


 


19

















 


SECTION 4.02.
Open-End Mortgage.  This Mortgage is an
“Open-End Mortgage” within the meaning of Connecticut General Statutes
§49-2(c), and the holder hereof shall have all of the rights, powers and
protections to which the holder of any such Open-End Mortgage is entitled under
Connecticut law. The obligations created by the Credit Agreement specifically
permits future advances, including advances which may be made pursuant to a
commercial revolving loan agreement. The full amount of the Loans and Letters
of Credit authorized is $230,000,000 including (a) a Term Loan in the
aggregate principal amount not to exceed $185,000,000 to be advanced and fully
funded on the date hereof, (b) Revolving Loans in an aggregate principal
amount not to exceed $20,000,000, (c) Swingline Loans in an aggregate
principal amount not to exceed $10,000,000; and Letters of Credit in an
aggregate face amount not in excess of $15,000,000, (provided, however, that
the overall limit of all such Revolving Loans, Swingline Loans and Letters of
Credit outstanding at any time shall not exceed $20,000,000) and
(d) Incremental Term Loans and increases in the Revolving Credit
Commitment in an amount not to exceed the then available Incremental Revolving
Facility Amount in a combined aggregate principal amount not to exceed
$25,000,000 at any time. It is understood that future advances may be made as
provided in the Credit Agreement and in this Mortgage, with respect to
Revolving Loans, Swingline Loans, Letters of Credit, Incremental Term Loans and
Incremental Revolving Facility Amounts. The maximum term(s) (“Maturity
Date(s)”) of the Loans and Letters of Credit herein authorized are as follows:
The Term Loan, June 15, 2014; the Revolving Loans, June 15, 2012; the
Swingline Loans, June 15, 2012; the Letters of Credit, June 15, 2012;
the Incremental Term Loans, June 15, 2014 and any Incremental Revolving
Facility Amount, June 15, 2012.


 


SECTION 4.03.
Prejudgment Remedy Waiver.  The Mortgagor represents,
warrants and acknowledges that the transaction of which this Mortgage is a part
is a commercial transaction and not a consumer transaction. Monies now or in
the future to be advanced to or on behalf of Mortgagor are not and will not be
used for personal, family or household purposes. MORTGAGOR ACKNOWLEDGES THAT IT
HAS THE RIGHT UNDER CHAPTER 903a OF THE CONNECTICUT GENERAL STATUTES, SUBJECT
TO CERTAIN LIMITATIONS, TO NOTICE OF AND HEARING ON THE RIGHT OF THE MORTGAGEE
TO OBTAIN A PREJUDGEMENT REMEDY, SUCH AS ATTACHMENT, GARNISHEMENT OR REPLEVIN,
UPON COMMENCING ANY LITIGATION AGAINST MORTGAGOR. NOTWITHSTANDING SUCH RIGHT,
MORTGAGOR HEREBY WAIVES ALL RIGHTS TO NOTICE, JUDICIAL HEARING OR PRIOR COURT
ORDER TO WHICH IT MIGHT OTHERWISE HAVE THE RIGHT UNDER SAID STATUTE OR UNDER
ANY OTHER STATE OR FEDERAL STATUTE OR CONSTITUTION IN CONNECTION WITH THE
OBTAINING BY MORTGAGEE OF ANY PREJUDGMENT REMEDY IN CONNECTION WITH THIS
MORTGAGE. MORTGAGOR FURTHER CONSENTS TO THE ISSUANCE OF ANY PREJUDGEMENT
REMEDIES WITHOUT A BOND. NOTWITHSTANDING THE FOREGOING WAIVER, NOTHING HEREIN
SHALL BE DEEMED TO WAIVE ANY RIGHTS WHICH MORTGAGOR MAY HAVE WITH RESPECT
TO ANY PROCEEDINGS WHICH MAY BE PERMITTED BY LAW FOLLOWING THE GRANTING OF
SUCH PREJUDGMENT REMEDY.


 


20

















 


SECTION 4.04.
Loans Subject to Variable Interest Rate.  The Loans and Letters of
Credit secured by this Mortgage are variable interest rate loans as more
particularly described in the Credit Agreement, but changes in the interest
rate will not affect the maximum term of such loans or the maturity
date(s) of such loans as set forth in Section 4.02, above.


 


SECTION 4.05.
Statutory Condition.  This Mortgage is made and
given upon THE STATUTORY CONDITION. If the Obligations have been indefeasibly
paid in full in accordance with the terms of the Loan Documents, if all of the
covenants and agreements of the Mortgagor under this Mortgage, the Credit
Agreement and the Loan Documents shall be fully and faithfully paid, performed,
observed and complied with, in accordance with their terms and if the Lenders
have no further commitment to lend under the Credit Agreement, the aggregate
L/C Exposure has been reduced to zero and the Issuing Banks have no further
obligations to issue Letters of Credit under the Credit Agreement, then this
Mortgage shall be absolutely void; otherwise the same shall remain in full
force and effect.


 


21

















 


IN WITNESS WHEREOF, this
Mortgage has been duly executed and delivered to Mortgagee by Mortgagor on the
date of the acknowledgment attached hereto.


 


 


	
  WITNESSES:

  	
   

  	
  SPECIALIZED
  TECHNOLOGY RESOURCES, 

  
	
   

  	
   

  	
  INC.,
  a Delaware corporation,

  
	
   

  	
   

  	
   

  
	
  /s/
  Kris Villarreal

  	
   

  	
  by:

  
	
  Printed
  Name: Kris Villarreal

  	
   

  	
  /s/
  Barry A. Morris

  
	
   

  	
   

  	
  Name:

  
	
  /s/
  Kristin Blazewicz

  	
   

  	
  Title:

  
	
  Printed
  Name:  Kristin Blazewicz

  	
   

  	
   

  



 


22

















 


	
  STATE OF NEW YORK

  	
  )

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  ) ss

  	
   

  	
   

  	
   

  	
  June 15, 2007

  
	
  COUNTY
  OF NEW YORK

  	
  )

  	
   

  	
   

  	
   

  	
   

  



 


On this the 15 day of June,
2007, before me, Ercy Castro, the undersigned officer, personally appeared Barry
A. Morris, who acknowledged himself/herself to be
the                        
of SPECIALIZED TECHNOLOGY RESOURCES, INC., a Delaware corporation, and that
he/she, as such
                                          ,
being authorized to do so, executed the foregoing instrument for the purposes
therein contained, by signing the name of the corporation by
himself/herself as such
                                 .


 


In Witness Whereof I
hereunto set my hand.


 


 


	
   

  	
  /s/ Ercy Castro

  
	
   

  	
  Name: Ercy Castro

  
	
   

  	
  Notary Public

  
	
   

  	
  My Commission Expires:
  10/23/2010

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  ERCY
  CASTRO

  
	
   

  	
  Notary
  Public, State of New York

  
	
   

  	
  No.
  01CA6155025

  
	
   

  	
  Qualified
  in Kings County

  
	
   

  	
  Commission
  Expires Oct. 23, 2010

  



 


23

















 


Exhibit A


To Mortgage


Description of the Land


 


That
certain piece or parcel of land on the south side of Hazard Avenue (Route 190)
in the Town of Enfield, County of Hartford and State of Connecticut, shown as "Parcel
A" on Sheet 1 of 2 on a map or plan entitled: "Prepared for
Springborn Laboratories, Inc. Hazard Avenue & Abbe Road, Enfield,
Conn. . . Scale: 1 in. = 100 ft. Date: June 30, 1987. . . Rev. 2-24-88. . .
Alford Associates, Inc. Civil Engineers, Windsor, Connecticut," which
map or plan is on file with the Enfield Town Clerk in Map Volume 220,
Page 3033, and more particularly bounded and described as follows:


 


Beginning
at a point on the south side of Hazard Avenue, which point is the northwest
corner of the herein described premises and the northeast corner of land now or
formerly of Raymond F. and Suzanne Aquilio, as shown on said map; running
thence along the arc of a curve to the right having a radius of 933.00 feet and
a delta angle of 9° 34' 03" a distance of 155.79 feet to a CHD marker;
running thence N 83° 19' 04" E a distance of 414.00 feet to a CHD
monument; running thence N 82° 58' 24" E a distance of 143.64 feet to a
point, the last three (3) courses running along the south side of Hazard
Avenue; running thence S 09° 53' 12" E a distance of 435.66 feet along
land now or formerly of National Railroad Passenger Corporation as shown on
said map; running thence S 89° 20' 43" W a distance of 143.38 feet to a
point; S 64° 08' 57" W a distance of 9.72 feet to a point; S 00° 09' 17"
W a distance of 14.24 feet to a point; S 89° 08' 16" W a distance of 51.12
feet to a point; S 86° 57' 00" W a distance of 105.15 feet to a point; N
89° 55' 46" W a distance of 384.08 feet to a point; S 79° 44' 15" W a
distance of 139.61 feet to a set iron pin; N 69° 59' 38" W a distance of
129.11 feet to a set iron pin, the last eight (8) courses being along the
Scantic River as shown on said map; running thence N 24° 34' 57" E a
distance of 401.37 feet along land now or formerly of Thomas E. and Diane S.
Eastwood, James C. and Nancy A. Miczak and Raymond F. and Suzanne Aquilio, in
part by each, to the point or place of beginning.


 


TOGETHER
WITH an easement from the State of Connecticut to Springborn Testing &
Research, Inc. dated December 31, 1997 and recorded in Volume 1156,
Page 123 of the Enfield Land Records.


 














 


EXHIBIT F-1


 


[FORM OF]




OPINION OF WEIL, GOTSHAL &
MANGES LLP



















 




	
   

  	
  WEIL, GOTSHAL & MANGES LLP

  	
   

  
	
   

  	
  767
  FIFTH AVENUE

  	
  AUSTIN

  
	
   

  	
  NEW
  YORK, NY 10153

  	
  BOSTON

  
	
   

  	
  (212)
  310-8000

  	
  BRUSSELS

  
	
   

  	
  FAX:
  (212) 310-8007

  	
  BUDAPEST

  
	
   

  	
   

  	
   

  	
   

  	
  DALLAS

  
	
   

  	
   

  	
   

  	
   

  	
  FRANKFURT

  
	
   

  	
   

  	
   

  	
   

  	
  HOUSTON

  
	
   

  	
   

  	
   

  	
   

  	
  LONDON

  
	
   

  	
   

  	
   

  	
   

  	
  MIAMI

  
	
  WRITER’S DIRECT LINE

  	
   

  	
   

  	
   

  	
  PARIS

  
	
   

  	
   

  	
   

  	
   

  	
  PRAGUE

  
	
   

  	
   

  	
   

  	
   

  	
  SILICON VALLEY

  
	
   

  	
   

  	
   

  	
   

  	
  SINGAPORE

  
	
   

  	
  June 15, 2007

  	
  WARSAW

  
	
   

  	
   

  	
   

  	
   

  	
  WASHINGTON, D.C.

  






 


Credit Suisse,


as
Administrative Agent and


the
Lenders party to the


First
Lien Credit Agreement


 


Ladies
and Gentlemen:


 


We have acted as counsel to
STR Acquisition, Inc., a Delaware corporation (the “Borrower”), STR
Holdings LLC, a Delaware limited liability company (“Holdings”), Specialized
Technology Resources, Inc., a Delaware corporation (“STR”), Cal
Safety Compliance Corporation, a California corporation (“CSCC”), Specialized
Technology Resources (International), Inc., a Delaware corporation (“STR
International”), Shuster Laboratories, Inc., a Delaware corporation (“Shuster”),
Supply Chain Consulting Corporation, a Delaware corporation (“Supply Chain”),
Specialized Technology Resources (Florida), Inc., a Florida corporation (“STR
Florida”) and STR Materials Science, Inc., a Delaware corporation (“Materials”,
and together with the Borrower, Holdings, STR, CSCC, STR International, Shuster,
Supply Chain, and STR Florida, the “Loan Parties”), in connection with
the execution and delivery of, and the consummation of the transactions
contemplated by, the First Lien Credit Agreement dated as of June 15, 2007 (the
“Credit Agreement”) among the Borrower, Holdings, the Lenders party
thereto, and Credit Suisse, as administrative agent for the Lenders (in such
capacity, the “Administrative Agent”) and as collateral agent for the
Lenders (in such capacity, the “Collateral Agent”). This opinion is
being delivered pursuant to Section 4.02(a) of the Credit Agreement. Capitalized
terms defined in the Credit Agreement and used (but not otherwise defined) herein
are used herein as so defined.


 


In so acting, we have
examined originals or copies (certified or otherwise identified to our
satisfaction) of the following:


 


(a)           the Credit
Agreement;


 

















 


(b)           the First Lien Guarantee and
Collateral Agreement, dated as of the date hereof (the “Collateral Agreement”),
among the Loan Parties and the Collateral Agent;


 


(c)           the First Lien Assignment of
Distributions among STR, STR-Registrar LLC and the Collateral Agent;


 


(d)           the First Lien Patent Security
Agreement, dated as of the date hereof, among the Loan Parties and the
Collateral Agent;


 


(e)           the First Lien Trademark Security
Agreement, dated as of the date hereof, among Holdings, the Borrower and the
Collateral Agent;


 


(f)            the Intercreditor Agreement dated as
of the date hereof among Holdings, the Borrower, the Collateral Agent and
Credit Suisse, as the Second Lien Collateral Agent (as defined therein);


 


(g)           the UCC-1 Financing Statements
attached as Exhibit A hereto (the “Financing Statements”); and


 


(h)           such corporate and limited liability
company records, agreements, documents and other instruments, and such
certificates or comparable documents of public officials and of officers and
representatives of each of the Loan Parties, and have made such inquiries of
such officers and representatives, as we have deemed relevant and necessary as
a basis for the opinions hereinafter set forth. The documents set forth in
clauses (a) through (f) above shall be referred to as the “Loan
Documents.”


 


In such examination, we have
assumed the genuineness of all signatures, the legal capacity
of all natural persons, the authenticity of all documents submitted to us as
originals, the conformity to original documents of all documents submitted to
us as certified, conformed or photostatic copies and the authenticity of the
originals of such latter documents. As to all questions of fact material to
these opinions that have not been independently established, we have relied
upon certificates or comparable documents of officers and representatives of
the Loan Parties and upon the representations and warranties of the Loan Parties
contained in the Loan Documents. As used herein, “to our knowledge” and “of
which we are aware” mean the conscious awareness of facts or other information
by any lawyer in our firm actively involved in the transactions contemplated by
the Loan Documents.


 


Based on the foregoing, and
subject to the qualifications stated herein, we are of the opinion that:


 


1.     The Borrower is a corporation validly
existing and in good standing under the laws of the State of Delaware and has
all requisite corporate power and


 


2

















 


authority to own, lease and operate its
properties and to carry on its business as now being conducted. Holdings is a
limited liability company validly existing and in good standing under the laws of
the State of Delaware and has all requisite limited liability company power and
authority to own, lease and operate its properties and to carry on its business
as now being conducted. CSCC is a corporation validly existing and in good
standing under the laws of the State of California and has all requisite
corporate power and authority to own, lease and operate its properties and to
carry on its business as now being conducted. STR Florida is a corporation
validly existing and in good standing under the laws of the State of Florida
and has all requisite corporate power and authority to own, lease and operate
its properties and to carry on its business as now being conducted.


 


2.     Each of the Borrower, Holdings, CSCC and
STR Florida has all requisite corporate or limited liability company power and
authority to execute and deliver each of the Loan Documents to which it is a
party and to perform its obligations thereunder. The execution, delivery and
performance of, and the grant of security interests pursuant to, the Loan
Documents by each of the Borrower, Holdings, CSCC and STR Florida have been
duly authorized by all necessary corporate action on the part of the Borrower, CSCC
and STR Florida and all necessary limited liability company action on the part
of Holdings. Each Loan Document has been duly and validly executed and
delivered by each of the Loan Parties party thereto. Assuming the due
authorization, execution and delivery thereof by the other parties thereto, each
Loan Document constitutes the legal, valid and binding obligation of each Loan
Party party thereto, enforceable against it in accordance with its terms, subject
to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium
and similar laws affecting creditors’ rights and remedies generally, and
subject, as to enforceability, to general principles of equity, including
principles of commercial reasonableness, good faith and fair dealing (regardless
of whether enforcement is sought in a proceeding at law or in equity) and
except that (A) rights to indemnification and contribution thereunder may
be limited by federal or state securities laws or public policy relating
thereto, (B) no opinion is expressed with respect to Section 9.06 of
the Credit Agreement, and (C) certain remedial provisions of the Loan
Documents are or may be unenforceable in whole or in part under the laws of the
State of New York, but the inclusion of such provisions does not affect the
validity of the Loan Documents, and the Loan Documents contains adequate
provisions for the practical realization of the rights and benefits afforded
thereby. No opinion is expressed in this paragraph as to the attachment, perfection
or priority of any liens granted pursuant to the Loan Documents.


 


3.     The execution and delivery by each Loan
Party of the Loan Documents to which it is a party, the performance by each
Loan Party of its obligations thereunder and the grant of security interests by
each Loan Party pursuant to the Loan Documents will not conflict with, constitute
a default under or violate (i) any of the terms, conditions or provisions
of the Certificate of Incorporation or by-laws of the


 


3

















 


Borrower, CSCC or STR Florida or the
Certificate of Formation or operating agreement of Holdings, (ii) any of
the terms, conditions or provisions of any material document, agreement or
other instrument to which the Borrower or Holdings is a party of which we are
aware (iii) in the case of STR Florida, Florida corporate law, in the case
of CSCC, California corporate law, in the case of Holdings, Delaware limited
liability company law, in the case of the Borrower, Delaware corporate law,
(iv) federal law or regulation (other than federal and state securities or
blue sky laws, as to which we express no opinion in this paragraph) or
(v) any judgment, writ, injunction, decree, order or ruling of any court
or governmental authority binding on the Borrower or Holdings of which we are
aware.


 


4.     No consent, approval, waiver, license or authorization
or other action by or filing with any New York, California corporate, Florida
corporate, Delaware corporate or federal governmental authority is required in
connection with the execution and delivery by any Loan Party of the Loan
Documents to which it is a party, the consummation by such Loan Party of the
transactions contemplated thereby, the performance by such Loan Party of its
obligations thereunder or the grant by such Loan Party of the security
interests under the Loan Documents, except for (i) filings in connection
with perfecting security interests, and federal and state securities or blue
sky laws, as to which we express no opinion in this paragraph, (ii) those
already obtained and (iii) those which could not reasonably be expected to
have a material adverse effect on the business, assets or financial condition
of the Borrower, Holdings and each of their subsidiaries taken as a whole.


 


5.     Except as set forth in Schedule 3.09 to the
Credit Agreement, to our knowledge, there is no litigation, proceeding or
governmental investigation pending or overtly threatened against the Borrower
or Holdings that relates to any of the transactions contemplated by the Loan
Documents or which could reasonably be expected to have a material adverse
effect on the business, assets or financial condition of the Borrower, Holdings
and each of their subsidiaries taken as a whole or on the ability of the
Borrower to perform it obligations under the Loan Documents.


 


6.     No Loan Party is an “investment company”, within
the meaning of the Investment Company Act of 1940, as amended.


 


7.     Assuming that the Borrower complies with
the provisions of the Credit Agreement relating to the use of proceeds of the
Loans, the execution and delivery of the Credit Agreement by the Borrower and
the making of the Loans under the Credit Agreement will not violate Regulation
T, U or X of the Board of Governors of the Federal Reserve Board.


 


8.     (a) The execution and delivery of the
Collateral Agreement by each Loan Party creates a valid security interest in
favor of the Collateral Agent in the Article


 


4

















 


9 Collateral (as defined in the Collateral
Agreement), as security for the Obligations (as defined in the Collateral
Agreement). Assuming the filing of the Financing Statements (i) with
respect to CSCC, with the Secretary of State of the State of California,
(ii) with respect to STR Florida, with the Secretary of State of the State
of Florida and (iii) with respect to the Borrower, Holdings, STR, STR
International, Shuster, Supply Chain and Materials (collectively, the “Delaware
Parties”), with the Secretary of State of the State of
Delaware, such security interest is perfected, to the extent a security
interest in the Article 9 Collateral may be perfected by the filing of a
financing statement under the Uniform Commercial Code in effect (x) with
respect to CSCC, in the State of California (the “CA UCC”), (y) with
respect to STR Florida, in the State of Florida (the “FL UCC”)
or (z) with respect to the Delaware Parties, in the State of
Delaware (the “DE UCC”).


 


(b)           The execution and delivery of the
Collateral Agreement by each Loan Party creates a valid lien on and security
interest in the Pledged Stock and Pledged Debt Securities (each as defined in
the Collateral Agreement), in favor of the Collateral Agent as security for the
Obligations (as defined in the Collateral Agreement). Assuming (i) delivery
in the State of New York to the Collateral Agent (the “Pledgee”)
of all certificates and instruments that represent the Pledged Stock
and Pledged Debt Securities, together with stock powers or note powers, as the
case may be, properly executed in blank with respect thereto, and (ii) that
the Pledgee was without notice of any adverse claim (as such phrase is defined
in Section 8-105 of the Uniform Commercial Code in effect in the State of
New York (the “NY UCC” and, together with the CA
UCC, the FL UCC and the DE UCC, the “UCC”)) with respect to the Pledged
Stock and Pledged Debt Securities, such security interest is perfected and is
free of any adverse claim. The security interest in such Pledged Stock and
Pledged Debt Securities, to the extent delivered, will be prior to any security
interest, lien, charge or encumbrance that must be perfected by possession or
filing under the NY UCC, to the extent that the creation and perfection of
security interests in such Pledged Stock and Pledged Debt Securities is
governed by the NY UCC.


 


(c)           The execution and delivery by each
Loan Party of the Collateral Agreement creates in favor of the Collateral Agent
a valid security interest in each Deposit Account described therein. Upon the
execution and delivery of the Webster DACA by STR, the Collateral Agent and
Webster Bank, the security interest granted to the Collateral Agent in each
Deposit Account described in the Webster DACA will be perfected.


 


The opinions in subparagraph
(a) and, with respect to subclauses A and B below, subparagraphs (b) and
(c) are subject to the following exceptions:


 


A.           that with respect to rights in the
Collateral of any Loan Party (as defined in the Collateral Agreement), we
express no opinion, and have assumed that such Loan Party has rights in the
Collateral;


 


5

















 


B.            that with respect to any Collateral
as to which the perfection of a lien or security interest is governed by the
laws of any jurisdiction other than the State of California, the State of
Florida, the State of Delaware or the State of New York, we express no opinion;


 


C.            that with respect to any Collateral
which is or may become fixtures (as defined in Section 9-102(a)(41) of the
UCC) or a commercial tort claim (as defined in Section 9-102(a)(13) of the
UCC), we express no opinion; and


 


D.            that with respect to transactions
excluded from Article 9 of the UCC by Section 9-109 thereof, we
express no opinion.


 


The opinion set forth in
subparagraph (b) is also subject to the following exceptions:


 


E.             that with respect to (i) federal
tax liens accorded priority under law and (ii) liens created under Title
IV of the Employee Retirement Income Security Act of 1974 which are properly
filed after the date hereof, we express no opinion as to the relative priority
of such liens and the security interests created by the Collateral Agreement or
as to whether such liens may be adverse claims; and


 


F.             that with respect to any claim (including
for taxes) in favor of any state or any of its respective agencies, authorities,
municipalities or political subdivisions which claim is given lien status and/or
priority under any law of such state, we express no opinion as to the relative
priority of such liens and the security interests created by the Collateral
Agreement or as to whether such liens may be adverse claims.


 


In addition, the opinions in
subparagraphs (a) and (b) are subject to (i) the limitations on
perfection of security interests in proceeds resulting from the operation of Section 9-315
of the UCC; (ii) the limitations with respect to buyers in the ordinary
course of business imposed by Sections 9-318 and 9-320 of the UCC; (iii) the
limitations with respect to documents, instruments and securities imposed by
Sections 8-302, 9-312 and 9-331 of the UCC; (iv) the provisions of Section 9-203
of the UCC relating to the time of attachment; and (v) Section 552 of
Title 11 of the United States Code (the “Bankruptcy Code”) with respect to
any Collateral acquired by any Loan Party subsequent to the commencement of a
case against or by such Loan Party under the Bankruptcy Code.


 


We further assume that all filings
will be timely made and duly filed as necessary (i) in the event of a
change in the name, identity or corporate structure of any Loan Party,
(ii) in the event of a change in the location of any Loan Party and
(iii) to continue to maintain the effectiveness of the original filings.


 


6

















 


The opinions expressed
herein are limited to the laws of the State of New York, the corporate and
limited liability company laws of the State of Delaware, the corporate laws of
the State of California, the corporate laws of the State of Florida,
Article 9 of the UCC and the federal laws of the United States, and we
express no opinion as to the effect on the matters covered by this letter of
the laws of any other jurisdiction.


 


The opinions expressed
herein are rendered solely for your benefit in connection with the transactions
described herein. Those opinions may not be used or relied upon by any other
person, nor may this letter or any copies hereof be furnished to a third party,
filed with a governmental agency, quoted, cited or otherwise referred to
without our prior written consent, other than to bank regulatory authorities or
permitted assigns of any Lender.


 


	
   

  	
  Very truly yours,

  
	
   

  	
   

  
	
   

  	
  /s/ Weil, Gotshal &
  Manges LLP

  



 


7














 


	
  UCC
  FINANCING STATEMENT

  	
   

  
	
  FOLLOW
  INSTRUCTIONS (front and back) CAREFULLY

  	
   

  
	
   

  	
   

  
	
  A. NAME &
  PHONE OF CONTACT AT FILER [optional]

  	
   

  
	
  UCC
  Filings

  	
  800-828-0938

  	
   

  
			



 


	
  B. SEND
  ACKNOWLEDGMENT TO: (Name and Address)

  	
   

  
	
  National Corporate Research

  	
   

  
	
  41 State Street, Suite 600

  	
   

  
	
  Albany, NY 12207

  	
   

  



 


	
   

  	
   

  
	
   

  	
  THE ABOVE SPACE IS FOR FILING OFFICE USE ONLY

  
			



 


	
  1. DEBTOR’S
  EXACT FULL LEGAL NAME - insert only one debtor name (1a or 1b) - do not abbreviate or
  combine names

  
	
   

  	
  1a. ORGANIZATION’S NAME

  
	
   

  	
  CAL SAFETY COMPLIANCE CORPORATION

  
	
  OR

  	
   

  
	
   

  	
  1b. INDIVIDUAL’S LAST NAME

  	
  FIRST NAME

  	
  MIDDLE NAME

  	
  SUFFIX

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  1c. MAILING ADDRESS

  	
  CITY

  	
  STATE

  	
  POSTAL CODE

  	
  COUNTRY

  
	
  1122 WEST WASHINGTON BLVD

  	
  LOS ANGELES

  	
  CA

  	
  90015

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  1d. SEE INSTRUCTIONS

  	
  ADD’L INFO RE ORGANIZATION DEBTOR

  	
  1e. TYPE OF ORGANIZATION

  Corporation

  	
  1f. JURISDICTION OF ORGANIZATION

  California

  	
  1g. ORGANIZATIONAL ID #, if any

  C17020913

  o NONE

  
								



 


	
  2. ADDITIONAL
  DEBTOR’S EXACT
  FULL LEGAL NAME - insert only one
  debtor name (2a or 2b) - do not abbreviate or combine names

  
	
   

  	
  2a. ORGANIZATION’S NAME

  
	
  OR

  	
   

  
	
   

  	
  2b. INDIVIDUAL’S LAST NAME

  	
  FIRST NAME

  	
  MIDDLE NAME

  	
  SUFFIX

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2c. MAILING ADDRESS

  	
  CITY

  	
  STATE

  	
  POSTAL CODE

  	
  COUNTRY

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2d. SEE INSTRUCTIONS

  	
  ADD’L INFO RE ORGANIZATION DEBTOR

  	
  2e. TYPE OF ORGANIZATION



  	
  2f. JURISDICTION OF ORGANIZATION



  	
  2g. ORGANIZATIONAL ID #, if any

   

  o NONE

  
								



 


	
  3. SECURED
  PARTY’S NAME
  (or NAME of TOTAL ASSIGNEE of ASSIGNOR S/P) - insert only one
  secured party name (3a or 3b)

  
	
   

  	
  3a. ORGANIZATION’S NAME

  
	
   

  	
  CREDIT SUISSE, AS
  COLLATERAL AGENT

  
	
  OR

  	
   

  
	
   

  	
  3b. INDIVIDUAL’S LAST NAME

  	
  FIRST NAME

  	
  MIDDLE NAME

  	
  SUFFIX

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  3c. MAILING ADDRESS

  	
  CITY

  	
  STATE

  	
  POSTAL CODE

  	
  COUNTRY

  
	
  ELEVEN MADISON AVENUE

  	
  NEW YORK

  	
  NY

  	
  10010

  	
   

  



 


	
  4. This FINANCING
  STATEMENT covers the following collateral:

  
	
  ALL ASSETS.

  
	
   

  



 


	
  5. ALTERNATIVE
  DESIGNATION [if applicable]: o LESSEE/LESSOR
  o CONSIGNEE/CONSIGNOR
  o BAILEE/BAILOR
  o SELLER/BUYER  o AG.
  LIEN o NON-UCC
  FILING

  



 


	
  6. o This FINANCING STATEMENT is
  to be filed [for record] (or recorded) in the REAL ESTATE RECORDS. Attach Addendum [if
  applicable]

  	
   

  	
  7. Check to REQUEST SEARCH REPORT(S) on Debtor(s) [ADDITIONAL FEE]  [optional]

  	
   

  	
  o All Debtors o Debtor 1 o Debtor 2

  



 


	
  8. OPTIONAL FILER REFERENCE DATA

  	
  F#197913

  
	
   5865-531 — CA - Secretary of State (SECOND
  LIEN)

  	
  A#301763

  



 


FILING OFFICE COPY — UCC
FINANCING STATEMENT (FORM UCC1) (REV. 05/22/02)


 

















 


	
  UCC
  FINANCING STATEMENT

  	
   

  
	
  FOLLOW
  INSTRUCTIONS (front and back) CAREFULLY

  	
   

  
	
   

  	
   

  
	
  A. NAME &
  PHONE OF CONTACT AT FILER [optional]

  	
   

  
	
  UCC
  Filings

  	
  800-828-0938

  	
   

  
			



 


	
  B. SEND
  ACKNOWLEDGMENT TO: (Name and Address)

  	
   

  
	
  National Corporate Research

  	
   

  
	
  41 State Street, Suite 600

  	
   

  
	
  Albany, NY 12207

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  THE ABOVE SPACE IS FOR FILING OFFICE USE ONLY

  
			



 


	
  1. DEBTOR’S
  EXACT FULL LEGAL NAME - insert only one debtor name (1a or 1b) - do not abbreviate or
  combine names

  
	
   

  	
  1a. ORGANIZATION’S NAME

  
	
   

  	
  SHUSTER LABORATORIES, INC.

  
	
  OR

  	
   

  
	
   

  	
  1b. INDIVIDUAL’S LAST NAME

  	
  FIRST NAME

  	
  MIDDLE NAME

  	
  SUFFIX

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  1c. MAILING ADDRESS

  	
  CITY

  	
  STATE

  	
  POSTAL CODE

  	
  COUNTRY

  
	
  85 JOHN ROAD

  	
  CANCON

  	
  MA

  	
  02021

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  1d. SEE INSTRUCTIONS

  	
  ADD’L INFO RE ORGANIZATION DEBTOR

  	
  1e. TYPE OF ORGANIZATION

  Corporation

  	
  1f. JURISDICTION OF ORGANIZATION

  Delaware

  	
  1g. ORGANIZATIONAL ID #, if any

   

  o NONE

  
								



 


	
  2. ADDITIONAL
  DEBTOR’S EXACT
  FULL LEGAL NAME - insert only one
  debtor name (2a or 2b) - do not abbreviate or combine names

  
	
   

  	
  2a. ORGANIZATION’S NAME

  
	
  OR

  	
   

  
	
   

  	
  2b. INDIVIDUAL’S LAST NAME

  	
  FIRST NAME

  	
  MIDDLE NAME

  	
  SUFFIX

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2c. MAILING ADDRESS

  	
  CITY

  	
  STATE

  	
  POSTAL CODE

  	
  COUNTRY

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2d. SEE INSTRUCTIONS

  	
  ADD’L INFO RE ORGANIZATION DEBTOR

  	
  2e. TYPE OF ORGANIZATION



  	
  2f. JURISDICTION OF ORGANIZATION



  	
  2g. ORGANIZATIONAL ID #, if any

   

  o NONE

  
								



 


	
  3. SECURED
  PARTY’S NAME
  (or NAME of TOTAL ASSIGNEE of ASSIGNOR S/P) - insert only one
  secured party name (3a or 3b)

  
	
   

  	
  3a. ORGANIZATION’S NAME

  
	
   

  	
  CREDIT SUISSE, AS
  COLLATERAL AGENT

  
	
  OR

  	
   

  
	
   

  	
  3b. INDIVIDUAL’S LAST NAME

  	
  FIRST NAME

  	
  MIDDLE NAME

  	
  SUFFIX

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  3c. MAILING ADDRESS

  	
  CITY

  	
  STATE

  	
  POSTAL CODE

  	
  COUNTRY

  
	
  ELEVEN MADISON AVENUE

  	
  NEW YORK

  	
  NY

  	
  10010

  	
   

  



 


	
  4. This FINANCING
  STATEMENT covers the following collateral:

  
	
  ALL ASSETS.

  
	
   

  



 


	
  5. ALTERNATIVE
  DESIGNATION [if applicable]: o LESSEE/LESSOR
  o CONSIGNEE/CONSIGNOR
  o BAILEE/BAILOR
  o SELLER/BUYER  o AG.
  LIEN o NON-UCC
  FILING

  



 


	
  6. o This FINANCING STATEMENT is
  to be filed [for record] (or recorded) in the REAL ESTATE RECORDS. Attach Addendum [if
  applicable]

  	
   

  	
  7. Check to REQUEST SEARCH REPORT(S) on Debtor(s) [ADDITIONAL
  FEE]  [optional]

  	
   

  	
  o All Debtors o Debtor 1 o Debtor 2

  



 


	
  8. OPTIONAL FILER REFERENCE DATA

  	
  F#197914

  
	
   5865-531 — DE - Secretary of State (SECOND
  LIEN)

  	
  A#301764

  



 


FILING OFFICE COPY — UCC
FINANCING STATEMENT (FORM UCC1) (REV. 05/22/02)


 

















 


	
  UCC
  FINANCING STATEMENT

  	
   

  
	
  FOLLOW
  INSTRUCTIONS (front and back) CAREFULLY

  	
   

  
	
   

  	
   

  
	
  A. NAME &
  PHONE OF CONTACT AT FILER [optional]

  	
   

  
	
  UCC
  Filings

  	
  800-828-0938

  	
   

  
			



 


	
  B. SEND
  ACKNOWLEDGMENT TO: (Name and Address)

  	
   

  
	
  National Corporate Research

  	
   

  
	
  41 State Street, Suite 600

  	
   

  
	
  Albany, NY 12207

  	
   

  
	
   

  	
   

  



 


	
   

  	
  THE ABOVE SPACE IS FOR FILING OFFICE USE ONLY

  



 


	
  1. DEBTOR’S
  EXACT FULL LEGAL NAME - insert only one debtor name (1a or 1b) - do not abbreviate or
  combine names

  
	
   

  	
  1a. ORGANIZATION’S NAME

  
	
   

  	
  SPECIALIZED TECHNOLOGY RESOURCES (FLORIDA), INC.

  
	
  OR

  	
   

  
	
   

  	
  1b. INDIVIDUAL’S LAST NAME

  	
  FIRST NAME

  	
  MIDDLE NAME

  	
  SUFFIX

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  1c. MAILING ADDRESS

  	
  CITY

  	
  STATE

  	
  POSTAL CODE

  	
  COUNTRY

  
	
  30 IRIQUOIS STREET

  	
  SAINT AUGUSTINE

  	
  FL

  	
  32085

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  1d. SEE INSTRUCTIONS

  	
  ADD’L INFO RE ORGANIZATION DEBTOR

  	
  1e. TYPE OF ORGANIZATION

  Corporation

  	
  1f. JURISDICTION OF ORGANIZATION

  Florida

  	
  1g. ORGANIZATIONAL ID #, if any

  G85948

  o NONE

  
								



 


	
  2. ADDITIONAL
  DEBTOR’S EXACT
  FULL LEGAL NAME - insert only one
  debtor name (2a or 2b) - do not abbreviate or combine names

  
	
   

  	
  2a. ORGANIZATION’S NAME

  
	
  OR

  	
   

  
	
   

  	
  2b. INDIVIDUAL’S LAST NAME

  	
  FIRST NAME

  	
  MIDDLE NAME

  	
  SUFFIX

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2c. MAILING ADDRESS

  	
  CITY

  	
  STATE

  	
  POSTAL CODE

  	
  COUNTRY

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2d. SEE INSTRUCTIONS

  	
  ADD’L INFO RE ORGANIZATION DEBTOR

  	
  2e. TYPE OF ORGANIZATION



  	
  2f. JURISDICTION OF ORGANIZATION



  	
  2g. ORGANIZATIONAL ID #, if any

   

  o NONE

  
								



 


	
  3. SECURED
  PARTY’S NAME
  (or NAME of TOTAL ASSIGNEE of ASSIGNOR S/P) - insert only one
  secured party name (3a or 3b)

  
	
   

  	
  3a. ORGANIZATION’S NAME

  
	
   

  	
  CREDIT SUISSE, AS
  COLLATERAL AGENT

  
	
  OR

  	
   

  
	
   

  	
  3b. INDIVIDUAL’S LAST NAME

  	
  FIRST NAME

  	
  MIDDLE NAME

  	
  SUFFIX

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  3c. MAILING ADDRESS

  	
  CITY

  	
  STATE

  	
  POSTAL CODE

  	
  COUNTRY

  
	
  ELEVEN MADISON AVENUE

  	
  NEW YORK

  	
  NY

  	
  10010

  	
   

  



 


	
  4. This FINANCING
  STATEMENT covers the following collateral:

  
	
  ALL ASSETS.

  
	
   

  
	
  Florida Documentary Stamp Tax is not required.

  
	
   

  



 


	
  5. ALTERNATIVE
  DESIGNATION [if applicable]: o LESSEE/LESSOR
  o CONSIGNEE/CONSIGNOR
  o BAILEE/BAILOR
  o SELLER/BUYER  o AG.
  LIEN o NON-UCC
  FILING

  



 


	
  6. o This FINANCING STATEMENT is
  to be filed [for record] (or recorded) in the REAL ESTATE RECORDS. Attach Addendum [if
  applicable]

  	
   

  	
  7. Check to REQUEST SEARCH REPORT(S) on Debtor(s) [ADDITIONAL
  FEE]  [optional]

  	
   

  	
  o All Debtors o Debtor 1 o Debtor 2

  



 


	
  8. OPTIONAL FILER REFERENCE DATA

  	
  F#197915

  
	
   5865-531 — FL - Secretary of State (SECOND
  LIEN)

  	
  A#301765

  



 


FILING OFFICE COPY — UCC
FINANCING STATEMENT (FORM UCC1) (REV. 05/22/02)


 

















 


	
  UCC
  FINANCING STATEMENT

  	
   

  
	
  FOLLOW
  INSTRUCTIONS (front and back) CAREFULLY

  	
   

  
	
   

  	
   

  
	
  A. NAME &
  PHONE OF CONTACT AT FILER [optional]

  	
   

  
	
  UCC
  Filings

  	
  800-828-0938

  	
   

  
			



 


	
  B. SEND
  ACKNOWLEDGMENT TO: (Name and Address)

  	
   

  
	
  National Corporate Research

  	
   

  
	
  41 State Street, Suite 600

  	
   

  
	
  Albany, NY 12207

  	
   

  
	
   

  	
   

  



 


	
   

  	
  THE ABOVE SPACE IS FOR FILING OFFICE USE ONLY

  



 


	
  1. DEBTOR’S
  EXACT FULL LEGAL NAME - insert only one debtor name (1a or 1b) - do not abbreviate or
  combine names

  
	
   

  	
  1a. ORGANIZATION’S NAME

  
	
   

  	
  SPECIALIZED TECHNOLOGY RESOURCES (INTERNATIONAL),
  INC.

  
	
  OR

  	
   

  
	
   

  	
  1b. INDIVIDUAL’S LAST NAME

  	
  FIRST NAME

  	
  MIDDLE NAME

  	
  SUFFIX

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  1c. MAILING ADDRESS

  	
  CITY

  	
  STATE

  	
  POSTAL CODE

  	
  COUNTRY

  
	
  10 WATER STREET

  	
  ENFIELD

  	
  CT

  	
  06082

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  1d. SEE INSTRUCTIONS

  	
  ADD’L INFO RE ORGANIZATION DEBTOR

  	
  1e. TYPE OF ORGANIZATION

  Corporation

  	
  1f. JURISDICTION OF ORGANIZATION

  Delaware

  	
  1g. ORGANIZATIONAL ID #, if any

   

  o NONE

  
								



 


	
  2. ADDITIONAL
  DEBTOR’S EXACT
  FULL LEGAL NAME - insert only one
  debtor name (2a or 2b) - do not abbreviate or combine names

  
	
   

  	
  2a. ORGANIZATION’S NAME

  
	
  OR

  	
   

  
	
   

  	
  2b. INDIVIDUAL’S LAST NAME

  	
  FIRST NAME

  	
  MIDDLE NAME

  	
  SUFFIX

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2c. MAILING ADDRESS

  	
  CITY

  	
  STATE

  	
  POSTAL CODE

  	
  COUNTRY

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2d. SEE INSTRUCTIONS

  	
  ADD’L INFO RE ORGANIZATION DEBTOR

  	
  2e. TYPE OF ORGANIZATION



  	
  2f. JURISDICTION OF ORGANIZATION



  	
  2g. ORGANIZATIONAL ID #, if any

   

  o NONE

  
								



 


	
  3. SECURED
  PARTY’S NAME
  (or NAME of TOTAL ASSIGNEE of ASSIGNOR S/P) - insert only one
  secured party name (3a or 3b)

  
	
   

  	
  3a. ORGANIZATION’S NAME

  
	
   

  	
  CREDIT SUISSE, AS
  COLLATERAL AGENT

  
	
  OR

  	
   

  
	
   

  	
  3b. INDIVIDUAL’S LAST NAME

  	
  FIRST NAME

  	
  MIDDLE NAME

  	
  SUFFIX

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  3c. MAILING ADDRESS

  	
  CITY

  	
  STATE

  	
  POSTAL CODE

  	
  COUNTRY

  
	
  ELEVEN MADISON AVENUE

  	
  NEW YORK

  	
  NY

  	
  10010

  	
   

  



 


	
  4. This FINANCING
  STATEMENT covers the following collateral:

  
	
  ALL ASSETS.

  
	
   

  



 


	
  5. ALTERNATIVE
  DESIGNATION [if applicable]: o LESSEE/LESSOR
  o CONSIGNEE/CONSIGNOR
  o BAILEE/BAILOR
  o SELLER/BUYER  o AG.
  LIEN o NON-UCC
  FILING

  



 


	
  6. o This FINANCING STATEMENT is
  to be filed [for record] (or recorded) in the REAL ESTATE RECORDS. Attach Addendum [if
  applicable]

  	
   

  	
  7. Check to REQUEST SEARCH REPORT(S) on Debtor(s) [ADDITIONAL
  FEE]  [optional]

  	
   

  	
  o All Debtors o Debtor 1 o Debtor 2

  



 


	
  8. OPTIONAL FILER REFERENCE DATA

  	
  F#197916

  
	
   5865-531 — DE - Secretary of State (SECOND
  LIEN)

  	
  A#301766

  



 


FILING OFFICE COPY — UCC
FINANCING STATEMENT (FORM UCC1) (REV. 05/22/02)


 

















 


	
  UCC
  FINANCING STATEMENT

  	
   

  
	
  FOLLOW
  INSTRUCTIONS (front and back) CAREFULLY

  	
   

  
	
   

  	
   

  
	
  A. NAME &
  PHONE OF CONTACT AT FILER [optional]

  	
   

  
	
  UCC
  Filings

  	
  800-828-0938

  	
   

  
			



 


	
  B. SEND
  ACKNOWLEDGMENT TO: (Name and Address)

  	
   

  
	
  National Corporate Research

  	
   

  
	
  41 State Street, Suite 600

  	
   

  
	
  Albany, NY 12207

  	
   

  
	
   

  	
   

  



 


	
   

  	
  THE ABOVE SPACE IS FOR FILING OFFICE USE ONLY

  



 


	
  1. DEBTOR’S
  EXACT FULL LEGAL NAME - insert only one debtor name (1a or 1b) - do not abbreviate or
  combine names

  
	
   

  	
  1a. ORGANIZATION’S NAME

  
	
   

  	
  SPECIALIZED TECHNOLOGY RESOURCES, INC.

  
	
  OR

  	
   

  
	
   

  	
  1b. INDIVIDUAL’S LAST NAME

  	
  FIRST NAME

  	
  MIDDLE NAME

  	
  SUFFIX

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  1c. MAILING ADDRESS

  	
  CITY

  	
  STATE

  	
  POSTAL CODE

  	
  COUNTRY

  
	
  10 WATER STREET

  	
  ENFLEID

  	
  CT

  	
  06082

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  1d. SEE INSTRUCTIONS

  	
  ADD’L INFO RE ORGANIZATION DEBTOR

  	
  1e. TYPE OF ORGANIZATION

  Corporation

  	
  1f. JURISDICTION OF ORGANIZATION

  Delaware

  	
  1g. ORGANIZATIONAL ID #, if any

   

  o NONE

  
								



 


	
  2. ADDITIONAL
  DEBTOR’S EXACT
  FULL LEGAL NAME - insert only one
  debtor name (2a or 2b) - do not abbreviate or combine names

  
	
   

  	
  2a. ORGANIZATION’S NAME

  
	
  OR

  	
   

  
	
   

  	
  2b. INDIVIDUAL’S LAST NAME

  	
  FIRST NAME

  	
  MIDDLE NAME

  	
  SUFFIX

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2c. MAILING ADDRESS

  	
  CITY

  	
  STATE

  	
  POSTAL CODE

  	
  COUNTRY

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2d. SEE INSTRUCTIONS

  	
  ADD’L INFO RE ORGANIZATION DEBTOR

  	
  2e. TYPE OF ORGANIZATION



  	
  2f. JURISDICTION OF ORGANIZATION



  	
  2g. ORGANIZATIONAL ID #, if any

   

  o NONE

  
								



 


	
  3. SECURED
  PARTY’S NAME
  (or NAME of TOTAL ASSIGNEE of ASSIGNOR S/P) - insert only one
  secured party name (3a or 3b)

  
	
   

  	
  3a. ORGANIZATION’S NAME

  
	
   

  	
  CREDIT SUISSE, AS
  COLLATERAL AGENT

  
	
  OR

  	
   

  
	
   

  	
  3b. INDIVIDUAL’S LAST NAME

  	
  FIRST NAME

  	
  MIDDLE NAME

  	
  SUFFIX

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  3c. MAILING ADDRESS

  	
  CITY

  	
  STATE

  	
  POSTAL CODE

  	
  COUNTRY

  
	
  ELEVEN MADISON AVENUE

  	
  NEW YORK

  	
  NY

  	
  10010

  	
   

  



 


	
  4. This FINANCING
  STATEMENT covers the following collateral:

  
	
  ALL ASSETS.

  
	
   

  



 


	
  5. ALTERNATIVE
  DESIGNATION [if applicable]: o LESSEE/LESSOR
  o CONSIGNEE/CONSIGNOR
  o BAILEE/BAILOR
  o SELLER/BUYER  o AG.
  LIEN o NON-UCC
  FILING

  



 


	
  6. o This FINANCING STATEMENT is
  to be filed [for record] (or recorded) in the REAL ESTATE RECORDS. Attach Addendum [if
  applicable]

  	
   

  	
  7. Check to REQUEST SEARCH REPORT(S) on Debtor(s) [ADDITIONAL
  FEE]  [optional]

  	
   

  	
  o All Debtors o Debtor 1 o Debtor 2

  



 


	
  8. OPTIONAL FILER REFERENCE DATA

  	
  F#197917

  
	
   5865-531 — DE - Secretary of State (SECOND
  LIEN)

  	
  A#301767

  



 


FILING OFFICE COPY — UCC
FINANCING STATEMENT (FORM UCC1) (REV. 05/22/02)


 














 


EXHIBIT F-2


 


[FORM OF]




OPINION OF MURTHA CULLINA LLP




 

















 


	
  

  	
   

  	
  CITYPLACE
  I

  185
  ASYLUM STREET

  HARTFORD,
  CONNECTICUT 06103-3469

  
	
  ATTORNEYS
  AT LAW

  	
   

  	
  TELEPHONE
  (860) 240-6000

  FACSIMILE
  (860) 240-6150

  www.murthalaw.com

  



 


June 15, 2007


 


Credit Suisse, As Administrative Agent,


Collateral Agent, Issuing Bank and Swingline Lender


under the Credit Agreement, as defined below


Eleven Madison Avenue


New York, New York 10010


 


The Lenders From Time to time party to the Credit
Agreement


 


Ladies and Gentlemen:


 


We have acted as special counsel to Specialized Technology
Resources, Inc., a Delaware corporation (the “Borrower”), in connection
with the making of loans (the “Loans”) in the aggregate principal amount of up
to $205,000,000 to the Borrower by the Lenders (the “Lenders”) referred to in
the First Lien Credit Agreement dated as of June 15, 2007 (the “Credit
Agreement”) by and among STR Holdings LLC, a Delaware limited liability
company, STR Acquisition, Inc., a Delaware corporation (which
substantially simultaneously with the execution of the Credit Agreement is to
be merged with and into the Borrower, with the Borrower being the surviving
entity), Credit Suisse, as administrative agent for the Lenders (the
“Administrative Agent”), Credit Suisse, as collateral agent for the lenders
(the “Collateral Agent”) and the Lenders. We have also acted as counsel to each
of (i) Specialized Technology Resources (International), Inc., a
Delaware corporation (“SII”), (ii) Shuster Laboratories, Inc., a
Delaware corporation (“SLI”), (iii) Supply Chain Consulting Services
Corp., a Delaware corporation (“SCCSC”) and (iv) STR Materials Science, Inc.,
a Delaware corporation (“STRMSI” and, together with SII, SLI and SCCSC,
collectively, the “Delaware Guarantors”).


 


The Loans are being made pursuant to the documents listed
on Exhibit A to this opinion, and
entered into by the various parties thereto (the “Documents”). This opinion is
being delivered to you pursuant to Section 4.02(a) of the Credit
Agreement. As used in this opinion, all capitalized terms shall have the
meanings set forth herein, or in Exhibit A hereto, or as ascribed to them in the Documents, unless the context
otherwise requires.


 


In connection with this opinion, we have reviewed and
relied upon originals or copies, certified or otherwise authenticated to our
satisfaction, of the Certificates of Incorporation, Bylaws, and records of the
corporate proceedings of the Borrower (including the Certificate of
Incorporation and By-Laws which are to be become effective upon the merger of
STR Acquisition, Inc. and the Borrower, with the Borrower being the
surviving entity) and each of the


 


BOSTON       HARTFORD       NEW
HAVEN       STAMFORD       WOBURN


 

















 


Delaware
Guarantors, certificates of public officials, executed copies of the Documents
and, with respect to factual matters only, certificates of Barry A. Morris,
Vice President, Chief Financial  Officer, Treasurer and
Secretary of the Borrower, Vice President, Chief Financial Officer, Treasurer
and Secretary of SII, Vice President, Treasurer and Secretary of SLI, Vice
President, Chief Financial Officer, Treasurer and Secretary of STRMSI, Vice
President, Chief Financial Officer, and Assistant Secretary of Cal Safety
Compliance Corporation (“CSCC”) (a California corporation which is a subsidiary
of the Borrower), Vice President, Treasurer and Secretary of Specialized
Technology Resources (Florida), Inc. (“STRFI”) (a Florida corporation
which is a subsidiary of the Borrower), and a certificate of Thomas D. Vitro,
Assistant Secretary of SCCSC (all of such certificates of Barry A. Morris and
Thomas D. Vitro collectively herein called, the “Certificates”). As to the
legal existence of the Borrower, SII, SLI, SCCSC and STRMSI, we  have relied
solely on certificates of the Secretary of State of the State of Delaware
attached hereto as Exhibits B, C, D, E and F. As to the
qualification of the Borrower to transact business in the State of Connecticut,
we have relied solely on a certificate of the Secretary of the State of the
State of Connecticut attached hereto as Exhibit G. As to the
qualification of SLI to transact business in the Commonwealth of Massachusetts,
we have relied solely on a certificate of the  Secretary of the
Commonwealth of Massachusetts attached hereto as Exhibit H. As to the
qualification of SCCSC to transact business in the State of California, we have
relied solely on a certificate of the Secretary of the State of California
attached hereto as Exhibit I. As to various questions of
fact material to our opinion, we have relied upon statements of fact (as
opposed to  legal conclusions) contained in the documents we have examined or made
to us by Barry A. Morris who by reason of his positions would be expected to
have knowledge of such facts. In  addition, we have reviewed
such provisions of law as we have deemed necessary in order to express the
opinions hereinafter set forth.


 


With
respect to matters stated herein to be “to our knowledge” or words of similar
import, our opinions are limited to matters (i) within the present
conscious awareness of the attorneys at  this firm who have worked on
this transaction and (ii) disclosed in the Certificates attached hereto as
Exhibits J, K, L, M, N, O and P, respectively. We have no
actual knowledge of any fact or circumstance which would lead us to believe
that we are not justified in relying on such Certificates. We have not searched
the dockets of any court or agency for litigation or proceedings against the
Borrower or any of the Delaware Guarantors.


 


We
have assumed that the documents to which the Delaware Guarantors are parties (collectively,
the “Delaware Guarantor Documents”) will not be made unenforceable against any of
the Delaware Guarantors due to lack of consideration (without investigation by
us of the nature or extent of the consideration being received by any of the
Delaware Guarantors).


 


We
express no opinion as to the laws of any jurisdiction other than the laws of
the State of Connecticut and the General Corporation Law of the State of
Delaware.


 


2

















 


For
purposes of this opinion, we have assumed the following:


 


(i)            that each of
the parties to the Documents other than the Borrower and the Delaware
Guarantors (each party to any of the Documents other than the Borrower or the
Delaware Guarantors herein individually called, an “Other Party” and all of the
parties to the Documents other than the Borrower and the Delaware Guarantors
herein collectively called, the “Other Parties”) have the power under their
respective charter documents to enter into the transactions contemplated by the
Documents, that such transactions are in compliance with all laws and
regulations applicable to each of such Other Parties, and that those of the
Documents to which any Other Party is a party have been duly authorized,
executed and delivered by such Other Party or Other Parties, as the case may
be, and constitute the valid and binding obligations of such Other Party or
Other Parties, as the case may be, enforceable against such Other Party or
Other Parties, as the case may be, in accordance with their respective terms;


 


(ii)           the
authenticity of all documents submitted to us as originals and the conformity
with the originals of all documents submitted to us as copies, whether
certified or not;


 


(iii)          the genuineness
of all signatures on the Documents;


 


(iv)          the Borrower
and each of the Delaware Guarantors have acquired good and marketable title to,
and therefore own, their real and personal property, subject only to
encumbrances which have been disclosed to, and accepted by, the Administrative
Agent, the Collateral Agent and the Lenders;


 


(v)           the competency of
each natural person executing the Documents or related documents or
certificates;


 


(vi)          the accuracy
and completeness of all representations and warranties of factual matters made
by the Borrower and/or the Delaware Guarantors in the Documents, without any
independent investigation on our part;


 


(vii)         the accuracy
and completeness of all records made available to us by the Borrower and the
Delaware Guarantors;


 


(viii)        the accuracy
and completeness of all governmental records examined by us;


 


(ix)           that STR
Acquisition, Inc. has merged with and into the Borrower, with the Borrower
being the surviving entity; and


 


3

















 


(x)            that the
Certificate of Incorporation and By-Laws attached hereto as  Exhibits Q and R,
respectively, are the Certificate of Incorporation and By-Laws of the Borrower
in effect immediately after the completion of the aforementioned merger of STR
Acquisition,  Inc. with and into the Borrower.


 


To the extent that our opinions herein relate to matters as to which
governmental agencies have issued certificates, or as to which certificates or
affidavits have been relied upon, such opinions speak as of the respective
dates of such certificates or affidavits.


 


Based
upon and subject to the foregoing, we are of the opinion that:


 


1.             The Borrower is
a corporation legally existing and in good standing under the laws of the State
of Delaware and has all requisite corporate power and authority to own, lease
and operate its properties and to carry on the business of product testing and
manufacturing. SII is a corporation legally existing and in good standing under
the laws of the State of Delaware and has all requisite corporate power and
authority to own, lease and operate its properties and to carry on the business
of a holding company. SLI is a corporation legally existing and in good
standing under the laws of the State of Delaware and has all requisite
corporate power and authority to own, lease and operate its properties and to
carry on the business of product testing. SCCSC is a corporation legally
existing and in good standing under the laws of the State of Delaware and has
all requisite corporate power and authority to own, lease and operate its
properties and to carry on the business of consulting and inspection services.
STRMSI is a corporation legally existing and in good standing under the laws of
the State of Delaware and has all requisite corporate power and authority to
own, lease and operate its properties and to carry on the business permitted in
its Certificate of Incorporation.


 


2.             The Borrower
has all requisite corporate power and authority to enter into the Documents to
which it is a party (the “Borrower Documents”) and to execute, deliver and
perform its obligations under the terms of the Borrower Documents.


 


3.             The Borrower is
qualified to transact business as a foreign corporation in the State of
Connecticut.


 


4.             Each of the
Delaware Guarantors has all requisite corporate power and authority to enter
into the Delaware Guarantor Documents and to execute, deliver and perform its
obligations under the terms of the Delaware Guarantor Documents.


 


5.             SLI is
qualified to transact business as a foreign corporation, and is in good
standing, in the Commonwealth of Massachusetts.


 


6.             SCCSC is
qualified to transact business as a foreign corporation in the State of
California.


 


4

















 


7.             The
execution and delivery of the Borrower Documents on behalf of the Borrower, the
performance of the obligations undertaken by it therein, and the grant of
security interests by it pursuant thereto, have been duly authorized by all
necessary corporate action on the part of the Borrower.


 


8.             The
execution and delivery of the Delaware Guarantor Documents on behalf of each of
the Delaware Guarantors, the performance of the obligations undertaken by each
of the Delaware Guarantors therein, and the grant of security interests by each
of the Delaware Guarantors thereunder have been duly authorized by all
necessary corporate action on the part of each of the Delaware Guarantors.


 


9.             The
execution and delivery by the Borrower of, the performance by the Borrower of
its obligations under, and the grant of security interests by the Borrower
pursuant to the Borrower Documents do not (a) violate any provisions of
the Certificate of Incorporation or Bylaws of the Borrower; (b) to our
knowledge breach, or constitute a default under, any existing obligation of the
Borrower under any indenture, mortgage, lease, license, franchise, agreement,
judgment, decree, order, writ, injunction or other instrument to which the
Borrower is a party or by which its property is bound; or (c) violate any
provision of any statute, rule or regulation of general application
applicable to the Borrower. Specifically excluded from this opinion, however,
are any laws, rules or regulations with respect to subdivision, zoning or
other land use and development matters.


 


10.           The
execution and delivery by the Delaware Guarantors of, the performance by the
Delaware Guarantors of their obligations under, and the grant of security
interests by the Delaware Guarantors pursuant to, the Delaware Guarantor
Documents do not (a) violate any provisions of the Certificates of
Incorporation or Bylaws of the Delaware Guarantors; (b) to our knowledge,
breach, or constitute a default under, any existing obligation of any of the
Delaware Guarantors under any indenture, mortgage, lease, license, franchise,
agreement, judgment, decree, order, writ, injunction or other instrument to
which any of the Delaware Guarantors is a party or by which any property of any
of the Delaware Guarantors is bound; or (c) violate any provision of any
statute, rule or regulation of general application applicable to any of
the Delaware Guarantors. Specifically excluded from this opinion, however, are
any laws, rules or execution regulations with respect to subdivision,
zoning or other land use and development matters.


 


11.           To our
knowledge, except as set forth on Schedule 3.09 of the Credit Agreement, no
judgments are outstanding against the Borrower or any of the Delaware
Guarantors, and no litigation, contested claim or governmental proceeding is
now pending or threatened by or against the Borrower or any of the Delaware
Guarantors or affecting their business or property.


 


5

















 


12.           No
authorization, approval or other action by, and no notice to, consent of, order
of or filing with, any Connecticut State governmental authority is required to
be made or obtained by the Borrower in connection with the execution, delivery
and performance by the Borrower of the Borrower Documents or the grant by the
Borrower of the security interests under the Borrower Documents, other than (i) such
reports to United States governmental authorities regarding international
capital and foreign currency transactions as may be required pursuant to 31
C.F.R. Part 128, (ii) those that have been made or obtained and are
in full force and effect or as to which the failure to be made or obtained or
to be in full force and should not result individually or in the aggregate, in
a material adverse effect on the Borrower and its Subsidiaries, taken as a
whole, (iii) such registrations, filings and approvals under the laws of
the State of Connecticut as may be necessary in connection with the exercise of
remedies or sale of collateral or the granting of additional security interests
or guarantees pursuant to the Documents, (iv) such registrations, filings
or approvals that are required in order to perfect or record liens and/or
security interests granted under the Documents and (v) such registrations,
filings and approvals that may be required because of the legal or regulatory
status of any Lender or because of any other facts specifically pertaining to
any Lender.


 


13.           No
authorization, approval or other action by, and no notice to, consent of, order
of or filing with, any Connecticut State governmental authority is required to
be made or obtained by any Delaware Guarantor in connection with the execution,
delivery and performance by such Delaware Guarantor of the security interests
under the Delaware Guarantor Documents, other than (i) such reports to
United States governmental authorities regarding international capital and
foreign currency transactions as may be required pursuant to 31 C.F.R. Part 128,
(ii) those that have been made or obtained and are in full force and
effect or as to which the failure to be made or obtained or to be in full force
and effect should not result, individually or in the aggregate, in a material
adverse effect on the Borrower and its Subsidiaries, taken as a whole, (iii) such
registrations, filings and approvals under the laws of the State of Connecticut
as may be necessary in connection with the exercise of remedies or sale of
collateral or the granting of additional security interests or guarantees
pursuant to the Documents, (iv) such registrations, filings or approvals
that are required in order to perfect or record liens and/or security interests
granted under the Documents and (iv) such registrations, filings and
approvals that may be required because of the legal or regulatory status of any
Lender or because of any other facts specifically pertaining to any Lender.


 


14.           The
execution and delivery by CSCC of, the performance by CSCC of its obligations
under, and the grant of security interests by CSCC pursuant to, the Documents
to which it is a party do not, to our knowledge, breach or constitute a default
under, any existing obligation of CSCC under any indenture, mortgage, lease,
license, franchise agreement, judgment, decree, order, writ, injunction or
other instrument to which CSCC is a party or by which its property is bound.


 


6

















 


15.           The
execution and delivery by STRFI of, the performance by STRFI of its obligations under, and the grant of security
interests by STRFI pursuant to, the Documents to which it is a party do not, to
our knowledge, breach or constitute a default under, any existing obligation of STRFI under any indenture, mortgage,
lease, license, franchise agreement, judgment, decree, order, writ, injunction
or other instrument to which STRFI is a party or by which its property is bound.


 


The foregoing is subject to the following:


 


(a)           Our
opinions are limited to only those laws, rules and regulations that we
have, in the exercise of customary professional diligence, but without any
special investigation, recognized as generally applicable to the transactions
contemplated by the Documents or to business organizations of the same type as
the Borrower and the Delaware Guarantors. In addition, we express no opinion as
to any law, rule or regulation, the violation of which would not have a
material effect on you, the Borrower or the Delaware Guarantors.


 


(b)           No
opinion is expressed herein with respect to the enforceability of any of the
Documents against any party thereto nor with respect to the creation,
perfection or priority of any lien or security interest created by any of the
Documents. We note that we have delivered a separate legal opinion dated the
date hereof to the Administrative Agent and the Lenders addressing the
enforceability of the Mortgage.


 


This opinion is rendered only as of the date hereof. We
undertake no obligation to update or supplement this opinion to reflect any
matters which may hereafter come to our attention or any amendments to the
Documents or change in law or any other matter that may occur after the date of
this opinion. This opinion is issued for the benefit of the Administrative
Agent and the other Lenders and may be relied upon by the Administrative Agent
and the Lenders and any of their
successors or assigns and participants in the Loans in connection with the
transactions contemplated by the Documents, but it may not be relied upon by
any other person or for any other purpose whatsoever, without in each such
other instance obtaining our prior written consent.


 


	
   

  	
  Very truly yours,

  
	
   

  	
   

  
	
   

  	
  MURTHA CULLINA LLP

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Frank J. Saccomandi, III

  
	
   

  	
   

  	
  Frank J. Saccomandi, III

  
	
   

  	
   

  	
  A Partner of the Firm

  



 


7














 


	
  

  	
  CITYPLACE 1

  185 ASYLUM STREET

  HARTFORD, CONNECTICUT 06103-3469

  
	
  ATTORNEYS AT LAW 

  	
  TELEPHONE (860) 240-6000

  FACSIMILE (860) 240-6150

  www.murthalaw.com 

  



 


June 15, 2007


 


Credit
Suisse,


as
Administrative Agent, Collateral Agent,


Issuing
Bank and Swingline Lender


under
the Credit Agreement referred to below


Eleven
Madison Avenue


New
York, New York 10010


 


The
Lenders from time to time party to the Credit Agreement


 


Re:                               First Lien Credit
Agreement dated as of June 15, 2007 (the “Credit Agreement”), among STR Acquisition,
Inc., a Delaware corporation, which substantially simultaneously with the execution
of the Credit Agreement shall be merged with and into Specialized Technology Resources,
Inc. (the “Mortgagor”), STR Holdings LLC, a Delaware limited liability company,
the lenders from time to time party thereto (the “Lenders”) and Credit Suisse, Administrative
Agent for the Lenders, Collateral Agent for the Secured Parties, Swingline Lender
and Issuing Bank.


 


Ladies
and Gentlemen:


 


We
have acted as special Connecticut counsel to the Mortgagor in connection with the
making of the Loans by the Lenders pursuant to the Credit Agreement. The Mortgage,
as defined below, is being granted by the Mortgagor as security for the Loans, which
Loans shall not exceed $230,000,000, comprised of (a) a Term Loan in the aggregate
principal amount not to exceed $185,000,000 to be advanced and fully funded on June
15, 2007, (b) Revolving Loans in an aggregate principal amount not to exceed $20,000,000,
(c) Swingline Loans in an aggregate principal amount not to exceed $10,000,000 and
Letters of Credit in an aggregate face amount not in excess of $15,000,000 (provided,
however, that the overall limit of all such Revolving Loans, Swingline Loans and
Letters of Credit outstanding at any time shall not exceed $20,000,000), and (d)
Incremental Term Loans and increases in the Revolving Credit Commitment in an amount
not to exceed the then available Incremental Revolving Facility Amount in a combined
aggregate principal amount not to exceed $25,000,000 at any time.


 


BOSTON  HARTFORD 
NEW HAVEN  STAMFORD  WOBURN


 

















 


Capitalized
terms used herein, but not otherwise defined herein, shall have the meanings ascribed
to such terms in the Credit Agreement or the Mortgage. This opinion is delivered
to you, at our client’s request, pursuant to Section 4.02(a)(ii) of the Credit Agreement.


 


In
connection with this opinion, we have examined:


 


(a)           the
Credit Agreement; and


 


(b)           that
certain Open-End Mortgage, Assignment of Leases and Rents, Security Agreement and
Financing Statement, dated as of June 15, 2007 (the “Mortgage”, and together with
the Credit Agreement, the “Documents”), granted by Mortgagor to Credit Suisse (in
such capacity, the “Mortgagee”), encumbering certain real property of Mortgagor
located at 10 Water Street, Enfield, Connecticut 06082, which Mortgage is to be
recorded in the Land Records of the Town of Enfield, Connecticut (the “Local Recording
Office”).


 


In
addition, we have made such investigation of law, as we have deemed necessary or
advisable in connection with this opinion.


 


With
respect to matters stated herein to be “to our knowledge” or words of similar  import, we have
limited our opinions to matters within the actual conscious awareness of attorneys
in this firm who have rendered substantive attention to this transaction. We have
not reviewed our files or made any other investigations with respect to matters
stated herein to be “to our knowledge” or similarly qualified.


 


For
purposes of this opinion we have assumed that:


 


(A)          each of the parties to the Documents is,
and during the terms of such Documents will remain, in compliance with the provisions
of Connecticut law governing the transaction of its business in Connecticut;


 


(B)           the Credit Agreement constitutes the valid
and binding obligation of each party signatory thereto enforceable against such
parties in accordance with its terms;


 


(C)           the Mortgagor owns, good and indefeasible
fee simple title to, (or in the case of personal property, good and valid title
to) the property it is purported to own as described in the Mortgage;


 


(D)          the Mortgagee will only seek foreclosure
of the Mortgage with respect to all of the indebtedness secured thereby, notwithstanding
any provision which may be contained in the Documents relating to the establishment
of priority of the lien created thereby between the parties for whose benefit such
Mortgage was granted; and


 


(E)           that STR Acquisition, Inc. has merged
with and into the Mortgagor, with the Mortgagor being the surviving entity.


 


2

















 


We
have also assumed: (a) the genuineness of all signatures; (b) the competency of
each natural person executing the Documents, or related documents; and (c) that
the terms and conditions of the Documents have not been amended, modified or supplemented,
directly or indirectly, by any other agreement or understanding of the parties or
by waiver of any of the material provisions of the Documents by any of the parties
to such documents.


 


We
have not verified any of the foregoing assumptions, but we have no knowledge of
any facts which are inconsistent with those assumptions.


 


As
to various questions of fact material to our opinion, we have relied upon statements
of fact (as opposed to legal conclusions) contained in the documents we have examined
and based on our knowledge, nothing has come to our attention that leads us to believe
that we are not justified in so relying thereon.


 


Based
upon, and subject to, the foregoing, and subject also to the qualifications, exceptions
and limitations set forth below, we are of the opinion that:


 


1.             Except for filings which are necessary
to publish notice of the existence of the Mortgage as an encumbrance on the real
property described in the Mortgage, and/or to perfect the security interests granted
under the Mortgage in fixtures located, or to be located, on the real property described
in the Mortgage, no authorizations or approvals of, and no filings with, any governmental
or regulatory authority or agency of the State of Connecticut are necessary for
the execution, delivery or performance of the Mortgage by the Mortgagor.


 


2.             The Mortgage, which by its terms is
to be governed in its entirety by the laws of the State of Connecticut, constitutes
the legal, valid and binding obligation of the Mortgagor, enforceable against the
Mortgagor in accordance with its terms.


 


3.             The execution and delivery by the Mortgagor
of the Mortgage, and the consummation of the transaction contemplated thereby, do
not conflict with, or violate, any Connecticut law, rule or regulation applicable
to the Mortgagor.


 


4.             The choice of the Connecticut law to
govern the Mortgage will be upheld and enforced by Connecticut state courts and
federal courts sitting in Connecticut. We believe that a Connecticut state court
or a federal court sitting in the Connecticut would give effect to the choice of
law provisions set forth in the Credit Agreement stipulating that the validity,
construction and enforceability of such Credit Agreement will be governed by the
laws of the State of New York, unless such court were to determine that (x) the
State of New York has no substantial relationship to the parties to the Credit Agreement
or the transactions described therein, as applicable, or (y) the result obtained
from applying the law of the State of New York would be contrary to the public policy
of the State of Connecticut.


 


5.             The Mortgage is in proper form for recording,
and upon due recordation of the Mortgage in the Local Recording Office, the Mortgage
will create and constitute a valid, legal, binding and enforceable lien of record
in favor of the Mortgagee, for the benefit of the Lenders, on all of the Mortgagor’s
right, title and interest in the real property described in the


 


3

















 


Mortgage
(the “Real Property”). No other filing or recording, or re-filing or re-recording,
is necessary or advisable in order to publish notice of the Mortgagee’s interest
in the Real Property or to preserve the lien created on the Mortgagor’s interest
therein encumbered by the Mortgage.


 


6.             As provided in the Mortgage, the creation,
perfection and enforcement of the  security interest created by
the Mortgage in fixtures of the Mortgagor located, or to be located, on the Real
Property described in the Mortgage is governed by the laws of the State of  Connecticut. The
Mortgage constitutes a valid security agreement and fixture filing and creates a
valid, legal, binding and enforceable security interest in favor of the Mortgagee,
as secured party, and against the Mortgagor, as debtor, in that portion of the Mortgaged
Property (as defined in the Mortgage) constituting fixtures attached to the Real
Property described in the Mortgage and in which a security interest may be created
under the provisions of Article 9 of the Uniform Commercial Code as in effect in
the State of Connecticut as of the date hereof (the “UCC”). We note, however, that
the definition of the term Mortgaged Property as contained in the Mortgage is sufficiently
broad to encompass both personal property and fixtures attached to the Real Property.
We further note that the Mortgagee’s security interest in the Mortgagor’s  interest in such
items of the Mortgaged Property constituting fixtures attached to the Real Property
described in the Mortgage will not “attach”, as such term is used in the UCC, until  the Mortgagor acquires
rights therein or the right to transfer its interest therein. Upon the recording
of the Mortgage in the Local Recording Office, the Mortgagee will have a perfected
security interest in the Mortgagor’s interest in those items of the Mortgaged Property
which  constitute fixtures attached to the Real Property described in such Mortgage
in which the Mortgagor now has rights or the right to transfer its interest and
in which a security interest can be perfected by recording in the Local Recording
Office under the UCC. Thereafter, at such time as the Mortgagor acquires rights
in, or the right to transfer its interest in, additional items of such Mortgaged
Property, the Mortgagee shall have a perfected security interest in the  Mortgagor’s interest
in that portion of such additional items of Mortgaged Property which constitute
fixtures attached to the Real Property in which a security interest may be perfected
by recording in the Local Recording Office under the UCC. Our opinions in this numbered
paragraph 6 are qualified as follows:


 


I.              Insofar as security interests relate
to proceeds, the continued perfection of such security interests is subject to the
provisions of Section 9-315 of the UCC;


 


II.            We have assumed that the Lenders have
“given value” as that term is used in the UCC; and


 


III.           No opinion is expressed with respect to
the creation or perfection of a security interest in any of the Mortgaged Property
other than fixtures as expressly set forth above.


 


7.             To the extent the substantive laws of
the State of Connecticut (without regard to  choice of law principles)
were to apply, the Loans will not violate any applicable usury laws of  the State of Connecticut
or other applicable laws regulating the interest rate, fees and other charges that
may be collected with respect to the Loans. By way of explanation, the provisions
of Connecticut General Statutes § 37-4, et
seq., constitute the laws of
the State of Connecticut


 


4

















 


relating
to interest charges in excess of the lawful rate, commonly referred to as usury
(“Connecticut’s Usury Statutes”). Connecticut’s Usury Statutes contain an exemption
for loans  made to foreign or domestic corporations, statutory trusts, limited liability
companies and general or limited partnerships (among other entities) involved primarily
in commercial, manufacturing, industrial or nonconsumer pursuits and provided further
that the funds received by such entities are utilized in such entities’ business
or investment activities and are not utilized  for consumer purposes and provided
further that the original indebtedness to be repaid is in excess of two hundred
fifty thousand dollars. Connecticut’s Usury Statutes also contain an exemption for
bona fide mortgages of real property for a sum in excess of five thousand dollars.  Based upon the provisions
of the Documents, the transaction evidenced by the Documents qualifies for the exemption(s)
set forth above and Connecticut’s Usury Statutes would not be applicable to such
transaction.


 


8.             To the extent that the sole activity
of the Mortgagee, any Lender, or any other party to the Documents (except the Mortgagor)
in the State of Connecticut is the recording of the Mortgage against the Real Property
(as described above) or the enforcement of the Mortgage, such activity, in and of
itself, would not constitute the transaction of business within the State of Connecticut
within the purview of § 33-920 of the Connecticut General Statutes (which constitutes
the laws of the State of Connecticut enumerating activities undertaken in the State
of Connecticut by corporations which do not constitute the transaction of business
in the State of Connecticut), and the Mortgagee or such other party would not be
required under the laws of the State of Connecticut to qualify or register as a
foreign entity in order to so accept the Mortgage or enforce the same. If it were
later determined that such qualification, registration and/or filing were required,
the validity of the Mortgage would not be affected thereby, and the Mortgagee could
thereafter seek qualification as such foreign entity, but if the Mortgagee is not
so qualified, it might be precluded from enforcing its rights (but could, in any
case defend any action) in the courts of the State of Connecticut until such time
as the Mortgagee is qualified to transact business in the State of Connecticut.
We express no opinion as to whether the Mortgagee, any Lender or any other party
to the Documents (other than the Mortgagor) has heretofore undertaken such other
activities or transacted such business or is currently engaged in such other activities
or transacting such business, as would require Mortgagee, any such Lender, or such
other party, or any of them, to obtain a certificate of authority from the Secretary
of the State of the State of Connecticut to transact business in the State of Connecticut.


 


9.             Subject to the procedural requirements
set forth in Connecticut General Statutes §49-1 as described below and as discussed
in the exceptions to this opinion, and subject to the provisions dealing with the
obtaining of a deficiency judgment after the foreclosure of a mortgage set forth
in Connecticut General Statutes §49-14 as discussed below, the foreclosure of the
Mortgage will not restrict or impair the liabilities of the Mortgagor (provided,
however, we express no opinion herein with respect to the Credit Agreement or any
of the obligations or liabilities of any of the parties thereunder) with respect
to the Loans or the Mortgagee’s or any Lender’s rights or remedies with respect
to the foreclosure or enforcement of any other security interests or liens securing
the Loans, and the laws of the State of Connecticut do not require a lienholder
to elect to pursue its remedies either against mortgaged realty or


 


5

















 


personalty
if such lienholder holds security interests and liens on both real and personal  property of a debtor.
Pursuant to Connecticut General Statutes §49-1, once a foreclosure action on a mortgage
is commenced, no further action on the mortgage debt, note or other obligations
secured by such mortgage may be taken during the pendency of such foreclosure  action against the
person or persons who are liable for the payment thereof who are made parties to
the foreclosure or against any person or persons upon whom service of process to
constitute an action in personam could have been made within the State of Connecticut
at the commencement of the foreclosure action, but the pendency of such a foreclosure
action is not a bar to any further action upon the mortgage debt, note or obligation
secured by such mortgage as to any person liable for the same upon whom service
of process to constitute an action in personam could not have been made within the
State of Connecticut at the commencement of  such foreclosure action. Pursuant
to Connecticut General Statutes §49-14, a foreclosing creditor has a statutory period
of thirty (30) days after the redemption period has expired in a  foreclosure action
to file a motion for a deficiency judgment. If a motion for deficiency judgment
is not filed within such aforesaid statutory period, the foreclosing creditor is
not entitled to seek to recover any deficiency remaining after the foreclosure.
If a motion seeking a deficiency judgment is timely filed, a hearing shall be held,
a valuation for the mortgaged property shall be established and the deficiency between
the valuation of the mortgaged property and the foreclosing creditor’s claim, if
any, shall be established. In any further action on the debt, note or obligation
which was secured by the foreclosed mortgage, the recovery is limited to the amount
of the deficiency judgment.


 


10.           Under the laws of the State of Connecticut, no mortgage, documentary,
stamp, intangible or similar tax is payable in connection with the execution, delivery
or enforcement of the Documents or the recording of the Mortgage, other than nominal
recording fees paid upon the recording of the Mortgage.  


 


The
opinions set forth above are subject to the following qualifications and limitations:


 


(a)           Except with respect to the $185,000,000
principal amount of the Term  Loan advanced and fully funded
at closing under the Credit Agreement, the $20,000,000 principal amount of Revolving
Loans provided for under the Credit Agreement, (including  within such amount
up to $10,000,000 principal amount of Swingline Loans provided for under the Credit
Agreement, and the Letters of Credit provided for under the Credit Agreement in
an aggregate face amount not in excess of $15,000,000, with the overall limit of
Revolving Loans, Swingline Loans and Letters of Credit being the aforesaid $20,000,000),
we express no opinion as to whether the Mortgage adequately describes the obligations
secured thereby or the effect on the enforceability of the Mortgage against third
parties to the extent of such portions of the obligations as are deemed not to be
adequately described. In particular, we note that to the extent the Mortgage is
intended to secure the Mortgagor’s obligations with respect to certain Incremental
Term Loans, any Incremental Revolving Facility Amount or any Hedging Agreement (each
as defined in the Credit Agreement), the Mortgage is not and would not be effective
under Connecticut law to create or preserve, or render enforceable, any lien with
respect to any Incremental Term Loans, any Incremental Revolving Facility Amount
or any such Hedging Agreement as it applies to the Mortgage or the Mortgagor’s undertaking(s)
with respect thereto under any of the Documents, purported to be secured by the
Mortgage.


 


6

















 


(b)           The enforceability of all rights, remedies
and obligations is subject to procedural due process and to laws of general application
relating to, and affecting the enforceability of, creditors’ rights and remedies
generally, under applicable bankruptcy, insolvency, reorganization, arrangement,
moratorium and fraudulent transfer or conveyance law and to state and federal forfeiture
laws and similar laws related to illegal drugs, anti-money laundering, terrorist
or similar activities.


 


(c)           The enforceability of the Mortgage is
subject to general principles of equity (regardless of whether such enforceability
is considered in a proceeding in equity or at law).


 


(d)           Certain provisions of the Mortgage may
not be enforceable, but such unenforceability will not render the Mortgage invalid
as a whole or preclude (i) subject to the statutory provision barring further action
on the debt when foreclosure has commenced pursuant to Connecticut General Statutes
§ 49-1, and subject to Connecticut General Statutes §§ 49-14 and 49-28 affecting
deficiency judgments, the judicial enforcement of the obligation of the Mortgagor
to repay the principal balance of the Loans then outstanding, as provided therein
(to the extent not deemed a penalty), and (ii) foreclosure of the Mortgage. We note
that to the extent the Mortgage is in favor of the Mortgagee, while any promissory
note or notes evidencing all or any portion of the indebtedness secured by the Mortgages
are in favor of the Lender(s) pursuant to the Credit Agreement, evidence of the
power and authority of the Mortgagee to act for and on behalf of the Lender(s) with
respect to such promissory note(s) or an assignment of such promissory note(s) to
the Mortgagee would be required to foreclose the Mortgage.


 


(e)           Subject to the provisions of subparagraph
(d) above, no opinion is expressed as to the enforceability of (i) provisions related
to self-help, (ii) provisions which purport to establish evidentiary standards,
(iii) provisions related to waiver of remedies (or the delay or omission of enforcement
thereof), disclaimers, releases of legal or equitable rights, discharge of defenses,
or liquidated damages, (iv) provisions releasing, exculpating or exempting a party
from, or requiring indemnification of a party for, liability for its own action
or inaction to the extent the action or inaction involves negligence, recklessness,
willful misconduct, unlawful conduct or conduct against public policy, or (v) any
particular remedy where another remedy has been selected; provided, however, that
such reservation in the aggregate will not affect the general legal, valid, binding
and enforceable nature of the obligations of the Mortgagor under the Mortgage.


 


(f)            Provisions in the Mortgage which permit
the Mortgagee to make determinations or to take actions may be subject to requirements
that such determinations be made or actions be taken on a reasonable basis and in
good faith.


 


(g)           No opinion is expressed as to the ownership
by the Mortgagor of any real or personal property. No opinion is expressed as to
the priority of any lien or security interest created in any property or as to any
person’s rights in any collateral.


 


7

















 


(h)           Provisions of the Mortgage which purport
to encumber after-acquired real property are unenforceable.


 


(i)            We express no opinion as to any compliance
with, the effect of, or need for, any governmental approvals, licenses, permits
or other authorizations required for the operation of any property owned by
the Mortgagor or the conduct of the Mortgagor’s business, including but not limited
to, any applicable health, safety, subdivision, zoning, land use or environmental
law, rule or regulation.


 


(j)            We are qualified to practice law in the
State of Connecticut. We express no opinion as to the laws of any jurisdiction other
than the laws of the State of Connecticut.


 


(k)           The opinions herein expressed are limited
to the matters expressly set forth in this opinion letter and no opinion is implied,
or may be inferred, beyond the matters expressly so stated.


 


This
opinion is rendered only as of the date hereof. We undertake no obligation to update
or supplement this opinion to reflect any matters which may hereafter come to our
attention or any amendments to the Documents, or change in law or any other matter
that may occur after the date of this opinion. This opinion is issued for the benefit
of the Institutions to whom this opinion is addressed (the “Institutions”) and may
be relied upon by the Institutions, their respective counsel, and any of their successors
or assigns in connection with the transactions contemplated by the Documents, but
it may not be relied upon by any other person or for any other purpose whatsoever,
without in each such other instance obtaining our prior written consent.


 


	
   

  	
  Very
  truly yours,

  
	
   

  	
   

  
	
   

  	
  MURTHA
  CULLINA LLP

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Frank J. Saccomandi III

  
	
   

  	
   

  	
  Frank
  J. Saccomandi III

  
	
   

  	
   

  	
  A
  Partner of the Firm

  



 


8