Blueprint





 






  Exhibit
4.6



 


 


 


 


 


 



AMENDED AND RESTATED


 


PLEDGE
AND SECURITY AGREEMENT


 


 


dated
as of February 15, 2017


 


between


 


EACH
OF THE GRANTORS PARTY HERETO


 


and


GOLDMAN
SACHS SPECIALTY LENDING GROUP, L.P.,


as
Collateral Agent




 


 












 






TABLE
OF CONTENTS


PAGE


	

SECTION 1.
DEFINITIONS; GRANT OF SECURITY. 



	
 1


	


1.1

	


General Definitions

	

2


	


1.2

	


Definitions; Interpretation

	

8


	

SECTION 2. GRANT
OF SECURITY. 



	
 9


	


2.1

	


Grant of Security

	

9


	


2.2

	


Certain Limited Exclusions

	

9


	

SECTION 3.
SECURITY FOR OBLIGATIONS; GRANTORS REMAIN LIABLE.




	
 10


	


3.1

	


Security for Obligations

	

10


	


3.2

	


Continuing Liability Under Collateral

	

10


	

SECTION 4.
REPRESENTATIONS AND WARRANTIES AND COVENANTS. 



	
 10


	


4.1

	

Generally.

	

10


	


4.2

	


Equipment and Inventory

	

13


	


4.3

	


Receivables

	

15


	


4.4

	


Investment Related Property.

	

17


	


4.5

	


Material Contracts

	

24


	


4.6

	


Letter of Credit Rights

	

25


	


4.7

	


Intellectual Property.

	

26


	


4.8

	


Commercial Tort Claims

	

29


	

SECTION
5. ACCESS; RIGHT OF INSPECTION AND FURTHER ASSURANCES; ADDITIONAL
GRANTORS

	

29


	


5.1

	


Access; Right of Inspection

	

29


	


5.2

	


Further Assurances

	

29


	


5.3

	


Additional Grantors

	

30


	

SECTION 6.
COLLATERAL AGENT APPOINTED ATTORNEY-IN-FACT. 



	
 31


	


6.1

	


Power of Attorney

	

31


	


6.2

	


No Duty on the Part of Collateral Agent or Secured
Parties

	

33


	

SECTION 7.
REMEDIES. 



	
 33


	


7.1

	


Generally.

	

33


	


7.2

	


Application of Proceeds

	

35


	


7.3

	


Sales on Credit

	

35


	


7.4

	


Deposit Accounts.

	

35


	


7.5

	


Investment Related Property.

	

35


	


7.6

	


Intellectual Property.

	

36


	


7.7

	


Cash Proceeds

	

38


	

SECTION 8.
COLLATERAL AGENT. 



	
 38


	

SECTION 9.
CONTINUING SECURITY INTEREST; TRANSFER OF LOANS.




	
 39






 



 

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SECTION 10.
STANDARD OF CARE; COLLATERAL AGENT MAY PERFORM. 



	
 40


	

SECTION 11.
MISCELLANEOUS. 



	
 40






 






SCHEDULE 4.1
— GENERAL INFORMATION




SCHEDULE 4.2
— LOCATION OF EQUIPMENT AND INVENTORY




SCHEDULE 4.4
— INVESTMENT RELATED PROPERTY




SCHEDULE 4.5
­— MATERIAL CONTRACTS




SCHEDULE 4.6
— DESCRIPTION OF LETTERS OF CREDIT




SCHEDULE 4.7
— INTELLECTUAL PROPERTY - EXCEPTIONS




SCHEDULE 4.8
— COMMERCIAL TORT CLAIMS




EXHIBIT A —
PLEDGE SUPPLEMENT




EXHIBIT B —
UNCERTIFICATED SECURITIES CONTROL AGREEMENT




EXHIBIT C —
SECURITIES ACCOUNT CONTROL AGREEMENT




EXHIBIT D —
DEPOSIT ACCOUNT CONTROL AGREEMENT




EXHIBIT E —
TRADEMARK SECURITY AGREEMENT




EXHIBIT F —
COPYRIGHT SECURITY AGREEMENT




EXHIBIT G —
PATENT SECURITY AGREEMENT




EXHIBIT H —
IRREVOCABLE PROXY




EXHIBIT I —
REGISTRATION PAGE




EXHIBIT J —
PLEDGE ACKNOWLEDGEMENT








 

ii







 






This
AMENDED AND RESTATED
PLEDGE AND SECURITY
AGREEMENT, dated as of February 15, 2017 (this
“Agreement”),
between EACH OF THE
UNDERSIGNED, whether as an original signatory hereto or as
an Additional Grantor (as herein defined) (each, a
“Grantor”), and
GOLDMAN SACHS SPECIALTY LENDING
GROUP, L.P., as collateral agent for the Secured Parties (as
herein defined) (in such capacity as collateral agent, the
“Collateral
Agent”).


RECITALS:


WHEREAS, reference is made to that
certain Credit and Guaranty Agreement, dated as of December 22,
2015 (as it may be amended, restated, supplemented or otherwise
modified from time to time, the “Prior Credit Agreement”), by and
among certain of the Companies (as defined below), Holdings, the
lenders party thereto from time to time (the “Lenders”), and GOLDMAN SACHS SPECIALTY LENDING GROUP,
L.P. (“GSSLG”), as Administrative Agent,
Collateral Agent and Lead Arranger;


WHEREAS, in connection with the Prior
Credit Agreement, certain Grantors and the Collateral Agent entered
into that certain Pledge and Security Agreement, dated as of
December 22, 2015 (as it may be amended, restated, supplemented or
otherwise modified from time to time, the “Prior Security Agreement”),
whereby the Grantors party to the Prior Security Agreement granted
to the Collateral Agent for the benefit of the Collateral Agent and
the Secured Parties, a lien on and a security interest in certain
of each of such Grantor’s personal property in accordance
with the Prior Credit Agreement in order to the secure the payment
and performance of the obligations under the Prior Credit
Agreement;


WHEREAS, the parties are amending and
restating the Prior Credit Agreement pursuant to that certain
Amended and Restated Credit and Guaranty Agreement, dated as of the
date hereof (as it may be amended, restated, supplemented or
otherwise modified from time to time, the “Credit Agreement”), by and among
HERE TO SERVE – MISSOURI
WASTE DIVISION, LLC, a Missouri limited liability company
(“HTS MWD”),
HERE TO SERVE – GEORGIA WASTE
DIVISION, LLC, a Georgia limited liability company
(“HTS GWD”),
MERIDIAN LAND COMPANY, LLC,
a Georgia limited liability company (“MLC”), MERIDIAN WASTE OPERATIONS, INC., a New
York corporation (“Operations”), CHRISTIAN DISPOSAL LLC, a Missouri
limited liability company (“Christian Disposal”), FWCD, LLC, a Missouri limited liability
company (“FWCD”), THE CFS GROUP, LLC, a Virginia limited
liability company (“CFS”), THE CFS GROUP DISPOSAL & RECYCLING
SERVICES, LLC, a Virginia limited liability company
(“CFS
Disposal”), and RWG5,
LLC, a Virginia limited liability company
(“RWG5”), MERIDIAN WASTE MISSOURI, LLC, a Missouri
limited liability company (“Meridian Missouri”), and MERIDIAN INNOVATIONS, LLC, a Georgia
limited liability company (“Innovations”, and together with
HTS MWD, HTS GWD, MLC, Operations, Christian Disposal, FWCD, CFS,
CFS Disposal, RWG5 and Meridian Missouri, the “Companies” and each, a
“Company”),
MERIDIAN WASTE SOLUTIONS,
INC., a New York corporation (“Holdings”), certain Subsidiaries of Holdings,
as Guarantors, the Lenders party thereto from time to time, and
GSSLG, as Administrative
Agent (in such capacity, “Administrative Agent”), Collateral
Agent and Lead Arranger;


WHEREAS, it is a condition precedent to
the Credit Agreement that the Grantors and the Collateral Agent
enter into this Agreement to amend and restate the Prior Security
Agreement; and



 

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NOW, THEREFORE, in consideration of the
premises and the agreements, provisions and covenants herein
contained, each Grantor and the Collateral Agent agree that the
Prior Security Agreement is amended and restated as
follows:




SECTION
1.

DEFINITIONS;
GRANT OF SECURITY.







1.1 General
Definitions.   In this
Agreement, the following terms shall have the following
meanings:


“Account Debtor” shall mean
each Person who is obligated on a Receivable or any Supporting
Obligation related thereto.


“Accounts” shall mean all
“accounts” as defined in Article 9 of the
UCC.


“Additional Grantors” shall
have the meaning assigned in Section 5.3.


“Administrative Agent” shall have
the meaning set forth in the recitals.


“Agreement” shall have the
meaning set forth in the preamble.


“Assigned Agreements” shall
mean all agreements and contracts to which such Grantor is a party
as of the date hereof, or to which such Grantor becomes a party
after the date hereof, including, without limitation, each Material
Contract, as each such agreement may be amended, supplemented or
otherwise modified from time to time.


“Cash Proceeds” shall have
the meaning assigned in Section 7.7.


“Chattel Paper” shall mean
all “chattel paper” as defined in Article 9 of the UCC,
including, without limitation, “electronic chattel
paper” or “tangible chattel paper”, as each term
is defined in Article 9 of the UCC.


“Collateral” shall have the
meaning assigned in Section 2.1.


“Collateral Account” shall
mean any account established by the Collateral Agent.


“Collateral Agent” shall
have the meaning set forth in the preamble.


“Collateral Records” shall
mean books, records, ledger cards, files, correspondence, customer
lists, blueprints, technical specifications, manuals, computer
software, computer printouts, tapes, disks and related data
processing software and similar items that at any time evidence or
contain information relating to any of the Collateral or are
otherwise necessary or helpful in the collection thereof or
realization thereupon.


“Collateral Support” shall
mean all property (real or personal) assigned, hypothecated or
otherwise securing any Collateral and shall include any security
agreement or other agreement granting a lien or security interest
in such real or personal property.



 

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“Commercial Tort Claims”
shall mean all “commercial tort claims” as defined in
Article 9 of the UCC, including, without limitation, all
commercial tort claims listed on Schedule 4.8 (as such schedule may
be amended or supplemented from time to time).


“Commodities Accounts” (i)
shall mean all “commodity accounts” as defined in
Article 9 of the UCC and (ii) shall include, without limitation,
all of the accounts listed on Schedule 4.4 under the heading
“Commodities Accounts” (as such schedule may be amended
or supplemented from time to time).


“Companies” shall have the
meaning set forth in the recitals.


“Controlled Foreign
Corporation” shall mean “controlled foreign
corporation” as defined in the Tax Code.


“Copyright Licenses” shall
mean any and all agreements providing for the granting of any right
in or to Copyrights (whether such Grantor is licensee or licensor
thereunder) including, without limitation, each agreement referred
to in Schedule 4.7(B) (as such schedule may be amended or
supplemented from time to time).


“Copyrights” shall mean all United
States, and foreign copyrights (including Community designs),
including but not limited to copyrights in software and databases,
and all Mask Works (as defined under 17 U.S.C. 901 of the U.S.
Copyright Act), whether registered or unregistered, and, with
respect to any and all of the foregoing: (i) all registrations and
applications therefor including, without limitation, the
registrations and applications referred to in Schedule 4.7(A) (as
such schedule may be amended or supplemented from time to time),
(ii) all extensions and renewals thereof, (iii) all rights
corresponding thereto throughout the world, (iv) all rights to sue
for past, present and future infringements thereof, and (v) all
Proceeds of the foregoing, including, without limitation, licenses,
royalties, income, payments, claims, damages and proceeds of
suit.


“Credit Agreement” shall
have the meaning set forth in the recitals.


 “Deposit Accounts” (i)
shall mean all “deposit accounts” as defined in Article
9 of the UCC and (ii) shall include, without limitation, all of the
accounts listed on Schedule 4.4 under the heading “Deposit
Accounts” (as such schedule may be amended or supplemented
from time to time).


“Documents” shall mean all
“documents” as defined in Article 9 of the
UCC.


“Equipment” shall mean: (i)
all “equipment” as defined in Article 9 of the UCC,
(ii) all machinery, manufacturing equipment, data processing
equipment, computers, office equipment, furnishings, furniture,
appliances, fixtures and tools (in each case, regardless of whether
characterized as equipment under the UCC) and (iii) all accessions
or additions thereto, all parts thereof, whether or not at any time
of determination incorporated or installed therein or attached
thereto, and all replacements therefor, wherever located, now or
hereafter existing, including any fixtures.


 “General Intangibles”
(i) shall mean all “general intangibles” as defined in
Article 9 of the UCC, including “payment intangibles”
also as defined in Article 9 of the UCC and (ii) shall include,
without limitation, all interest rate or currency protection or
hedging arrangements, all tax refunds, all licenses, permits,
concessions and authorizations, all Assigned Agreements and all
Intellectual Property (in each case, regardless of whether
characterized as general intangibles under the UCC).



 

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“Goods” (i) shall mean all
“goods” as defined in Article 9 of the UCC and (ii)
shall include, without limitation, all Inventory and Equipment (in
each case, regardless of whether characterized as goods under the
UCC).


“Grantors” shall have the
meaning set forth in the preamble.


“Instruments” shall mean all
“instruments” as defined in Article 9 of the
UCC.


“Insurance” shall mean (i)
all insurance policies covering any or all of the Collateral
(regardless of whether the Collateral Agent is the loss payee
thereof) and (ii) any key man life insurance policies.


“Intellectual Property”
shall mean, collectively, the Copyrights, the Copyright Licenses,
the Patents, the Patent Licenses, the Trademarks, the Trademark
Licenses, the Trade Secrets, and the Trade Secret
Licenses.


“Inventory” shall mean (i)
all “inventory” as defined in Article 9 of the UCC and
(ii) all goods held for sale or lease or to be furnished under
contracts of service or so leased or furnished, all raw materials,
work in process, finished goods, and materials used or consumed in
the manufacture, packing, shipping, advertising, selling, leasing,
furnishing or production of such inventory or otherwise used or
consumed in any Grantor’s business; all goods in which any
Grantor has an interest in mass or a joint or other interest or
right of any kind; and all goods which are returned to or
repossessed by any Grantor, all computer programs embedded in any
goods and all accessions thereto and products thereof (in each
case, regardless of whether characterized as inventory under the
UCC).


“Investment Accounts” shall
mean the Collateral Account, Securities Accounts, Commodities
Accounts and Deposit Accounts.


“Investment Related
Property” shall mean: (i) all “investment
property” (as such term is defined in Article 9 of the UCC)
and (ii) all of the following (regardless of whether classified as
investment property under the UCC): all Pledged Equity Interests,
Pledged Debt, the Investment Accounts and certificates of
deposit.


“Irrevocable Proxy” shall
have the meaning set forth in Section 4.4.1(b)(i).


“Issuer” shall mean the
issuer of any Pledged Equity Interests.


“Lender” shall have the
meaning set forth in the recitals.


“Letter of Credit Right”
shall mean “letter-of-credit right” as defined in
Article 9 of the UCC.


“Money” shall mean
“money” as defined in the UCC.


“New Grantors” shall mean CFS
Group, CFS Disposal and RWG5.



 

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“Non-Assignable Contract”
shall mean any agreement, contract or license to which any Grantor
is a party that by its terms purports to restrict or prevent the
assignment or granting of a security interest therein (either by
its terms or by any federal or state statutory prohibition or
otherwise irrespective of whether such prohibition or restriction
is enforceable under Section 9-406 through 409 of the
UCC).


“Patent Licenses” shall mean
all agreements providing for the granting of any right in or to
Patents (whether such Grantor is licensee or licensor thereunder)
including, without limitation, each agreement referred to in
Schedule 4.7(D) (as such schedule may be amended or supplemented
from time to time).


“Patents” shall mean all
United States and foreign patents and certificates of invention, or
similar industrial property rights, and applications for any of the
foregoing, including, but not limited to: (i) each patent and
patent application referred to in Schedule 4.7(C) hereto (as such
schedule may be amended or supplemented from time to time), (ii)
all reissues, divisions, continuations, continuations-in-part,
extensions, renewals, and reexaminations thereof, (iii) all rights
corresponding thereto throughout the world, (iv) all inventions and
improvements described therein, (v) all rights to sue for past,
present and future infringements thereof, (vi) all licenses,
claims, damages, and proceeds of suit arising therefrom, and (vii)
all Proceeds of the foregoing, including, without limitation,
licenses, royalties, income, payments, claims, damages, and
proceeds of suit.


“Pledge Supplement” shall
mean any supplement to this agreement in substantially the form of
Exhibit A.


“Pledged Debt” shall mean
all Indebtedness owed to such Grantor, including, without
limitation, all Indebtedness described on Schedule 4.4(A) under the
heading “Pledged Debt” (as such schedule may be amended
or supplemented from time to time), issued by the obligors named
therein, the instruments evidencing such Indebtedness, and all
interest, cash, instruments and other property or proceeds from
time to time received, receivable or otherwise distributed in
respect of or in exchange for any or all of such
Indebtedness.


“Pledged Equity Interests”
shall mean (i) all Pledged Stock, Pledged LLC Interests, Pledged
Partnership Interests and Pledged Trust Interests owned by any
Grantor, (ii) all rights, privileges, authorities, and powers of
such Grantor as an owner or holder of such Pledged Stock, Pledged
LLC Interests, Pledged Partnership Interests and Pledged Trust
Interests, including, without limitation, all economic rights, all
control rights, authority, and powers, all status rights of such
Grantor as a member, shareholder, or other owner (as applicable),
and all rights and interests, if any, to participate in the
management of each applicable Issuer, (iii) all of such Grantor's
options and other rights and interests, contractual or otherwise,
in respect of the Pledged Stock, Pledged LLC Interests, Pledged
Partnership Interests and Pledged Trust Interests, (iv) all of the
certificates and/or instruments, if any, evidencing or representing
the Pledged Stock, Pledged LLC Interests, Pledged Partnership
Interests and Pledged Trust Interests from time to time, (v) all
other property hereafter delivered to, or in the possession or
custody of, Collateral Agent in substitution for, or in addition
to, the Pledged Stock, Pledged LLC Interests, Pledged Partnership
Interests and Pledged Trust Interests, and (vi) any other property
of such Grantor in connection with the Pledged Stock, Pledged LLC
Interests, Pledged Partnership Interests and Pledged Trust
Interests now or hereafter delivered to, or in the possession or
custody of, Grantors.



 

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“Pledged LLC Interests”
shall mean all interests in any limited liability company
including, without limitation, all limited liability company
interests listed on Schedule 4.4(A) under the heading
“Pledged LLC Interests” (as such schedule may be
amended or supplemented from time to time) and the certificates, if
any, representing such limited liability company interests and any
interest of such Grantor on the books and records of such limited
liability company or on the books and records of any securities
intermediary pertaining to such interest and all dividends,
distributions, cash, warrants, rights, options, instruments,
securities and other property or proceeds from time to time
received, receivable or otherwise distributed in respect of or in
exchange for any or all of such limited liability company
interests.


“Pledged Partnership
Interests” shall mean all interests in any general
partnership, limited partnership, limited liability partnership or
other partnership including, without limitation, all partnership
interests listed on Schedule 4.4(A) under the heading
“Pledged Partnership Interests” (as such schedule may
be amended or supplemented from time to time) and the certificates,
if any, representing such partnership interests and any interest of
such Grantor on the books and records of such partnership or on the
books and records of any securities intermediary pertaining to such
interest and all dividends, distributions, cash, warrants, rights,
options, instruments, securities and other property or proceeds
from time to time received, receivable or otherwise distributed in
respect of or in exchange for any or all of such partnership
interests.


“Pledged Stock” shall mean
all shares of capital stock owned by such Grantor, including,
without limitation, all shares of capital stock described on
Schedule 4.4(A) under the heading “Pledged Stock” (as
such schedule may be amended or supplemented from time to time),
and the certificates, if any, representing such shares and any
interest of such Grantor in the entries on the books of the issuer
of such shares or on the books of any securities intermediary
pertaining to such shares, and all dividends, distributions, cash,
warrants, rights, options, instruments, securities and other
property or proceeds from time to time received, receivable or
otherwise distributed in respect of or in exchange for any or all
of such shares.


“Pledged Trust Interests”
shall mean all interests in a Delaware business trust or other
trust including, without limitation, all trust interests listed on
Schedule 4.4(A) under the heading “Pledged Trust
Interests” (as such schedule may be amended or supplemented
from time to time) and the certificates, if any, representing such
trust interests and any interest of such Grantor on the books and
records of such trust or on the books and records of any securities
intermediary pertaining to such interest and all dividends,
distributions, cash, warrants, rights, options, instruments,
securities and other property or proceeds from time to time
received, receivable or otherwise distributed in respect of or in
exchange for any or all of such trust interests.


“Prior Credit Agreement” shall have
the meaning set forth in the recitals.


“Prior Security Agreement” shall
have the meaning set forth in the recitals.


“Proceeds” shall mean: (i)
all “proceeds” as defined in Article 9 of the UCC, (ii)
payments or distributions made with respect to any Investment
Related Property and (iii) whatever is receivable or received when
Collateral or proceeds are sold, exchanged, collected or otherwise
disposed of, whether such disposition is voluntary or
involuntary.


“Receivables” shall mean all
rights to payment, whether or not earned by performance, for goods
or other property sold, leased, licensed, assigned or otherwise
disposed of, or services rendered or to be rendered, including,
without limitation all such rights constituting or evidenced by any
Account, Chattel Paper, Instrument, General Intangible or
Investment Related Property, together with all of Grantor’s
rights, if any, in any goods or other property giving rise to such
right to payment and all Collateral Support and Supporting
Obligations related thereto and all Receivables
Records.



 

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“Receivables Records” shall
mean (i) all original copies of all documents, instruments or other
writings or electronic records or other Records evidencing the
Receivables, (ii) all books, correspondence, credit or other files,
Records, ledger sheets or cards, invoices, and other papers
relating to Receivables, including, without limitation, all tapes,
cards, computer tapes, computer discs, computer runs, record
keeping systems and other papers and documents relating to the
Receivables, whether in the possession or under the control of
Grantor or any computer bureau or agent from time to time acting
for Grantor or otherwise, (iii) all evidences of the filing of
financing statements and the registration of other instruments in
connection therewith, and amendments, supplements or other
modifications thereto, notices to other creditors or secured
parties, and certificates, acknowledgments, or other writings,
including, without limitation, lien search reports, from filing or
other registration officers, (iv) all credit information, reports
and memoranda relating thereto and (v) all other written or
nonwritten forms of information related in any way to the foregoing
or any Receivable.


“Record” shall have the
meaning specified in Article 9 of the UCC.


“Registration Page” shall
have the meaning assigned in Section 4.4.1.


“Secured Obligations” shall
have the meaning assigned in Section 3.1.


“Secured Parties” shall mean
the Agents, Lenders and the Lender Counterparties and shall
include, without limitation, all former Agents, Lenders and Lender
Counterparties to the extent that any Obligations owing to such
Persons were incurred while such Persons were Agents, Lenders or
Lender Counterparties and such Obligations have not been paid or
satisfied in full.


“Securities” shall mean any
stock, shares, partnership interests, voting trust certificates,
certificates of interest or participation in any profit-sharing
agreement or arrangement, options, warrants, bonds, debentures,
notes, or other evidences of indebtedness, secured or unsecured,
convertible, subordinated or otherwise, or in general any
instruments commonly known as “securities” or any
certificates of interest, shares or participations in temporary or
interim certificates for the purchase or acquisition of, or any
right to subscribe to, purchase or acquire, any of the
foregoing.


“Securities Accounts” (i)
shall mean all “securities accounts” as defined in
Article 8 of the UCC and (ii) shall include, without limitation,
all of the accounts listed on Schedule 4.4(A) under the heading
“Securities Accounts” (as such schedule may be amended
or supplemented from time to time).


“Supporting Obligation”
shall mean all “supporting obligations” as defined in
Article 9 of the UCC.


“Trademark Licenses” shall
mean any and all agreements providing for the granting of any right
in or to Trademarks (whether such Grantor is licensee or licensor
thereunder) including, without limitation, each agreement referred
to in Schedule 4.7(F) (as such schedule may be amended or
supplemented from time to time).



 

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“Trademarks” shall mean all
United States, and foreign trademarks, trade names, corporate
names, company names, business names, fictitious business names,
Internet domain names, service marks, certification marks,
collective marks, logos, other source or business identifiers,
designs and general intangibles of a like nature, all registrations
and applications for any of the foregoing including, but not
limited to: (i) the registrations and applications referred to in
Schedule 4.7(E) (as such schedule may be amended or supplemented
from time to time), (ii) all extensions or renewals of any of the
foregoing, (iii) all of the goodwill of the business connected with
the use of and symbolized by the foregoing, (iv) the right to sue
for past, present and future infringement or dilution of any of the
foregoing or for any injury to goodwill, and (v) all Proceeds of
the foregoing, including, without limitation, licenses, royalties,
income, payments, claims, damages, and proceeds of
suit.


“Trade Secret Licenses”
shall mean any and all agreements providing for the granting of any
right in or to Trade Secrets (whether such Grantor is licensee or
licensor thereunder) including, without limitation, each agreement
referred to in Schedule 4.7(G) (as such schedule may be amended or
supplemented from time to time).


“Trade Secrets” shall mean
all trade secrets and all other confidential or proprietary
information and know-how whether or not such Trade Secret has been
reduced to a writing or other tangible form, including all
documents and things embodying, incorporating, or referring in any
way to such Trade Secret, including but not limited to: (i) the
right to sue for past, present and future misappropriation or other
violation of any Trade Secret, and (ii) all Proceeds of the
foregoing, including, without limitation, licenses, royalties,
income, payments, claims, damages, and proceeds of
suit.


“UCC” shall mean the Uniform
Commercial Code as in effect from time to time in the State of New
York or, when the context implies, the Uniform Commercial Code as
in effect from time to time in any other applicable
jurisdiction.


“United States” shall mean
the United States of America.



1.2 Definitions;
Interpretation. All capitalized
terms used herein (including the preamble and recitals hereto) and
not otherwise defined herein shall have the meanings ascribed
thereto in the Credit Agreement or, if not defined therein, in the
UCC. References to “Sections,” “Exhibits”
and “Schedules” shall be to Sections, Exhibits and
Schedules, as the case may be, of this Agreement unless otherwise
specifically provided. Section headings in this Agreement are
included herein for convenience of reference only and shall not
constitute a part of this Agreement for any other purpose or be
given any substantive effect. Any of the terms defined herein may,
unless the context otherwise requires, be used in the singular or
the plural, depending on the reference. The use herein of the word
“include” or “including”, when following
any general statement, term or matter, shall not be construed to
limit such statement, term or matter to the specific items or
matters set forth immediately following such word or to similar
items or matters, whether or not nonlimiting language (such as
“without limitation” or “but not limited
to” or words of similar import) is used with reference
thereto, but rather shall be deemed to refer to all other items or
matters that fall within the broadest possible scope of such
general statement, term or matter. If any conflict or inconsistency
exists between this Agreement and the Credit Agreement, the Credit
Agreement shall govern. All references herein to provisions of the
UCC shall include all successor provisions under any subsequent
version or amendment to any Article of the UCC.



 

8







 








SECTION
2.

GRANT OF SECURITY.







2.1 Grant of
Security. As security for
the payment and performance in full of all Secured Obligations,
each Grantor hereby grants to the Collateral Agent a security
interest in and continuing lien on all of such Grantor’s
right, title and interest in, to and under all personal property of
such Grantor including, but not limited to the following, in each
case whether now owned or existing or hereafter acquired or arising
and wherever located (all of which being hereinafter collectively
referred to as the “Collateral”):


(a) Accounts;


(b) Chattel
Paper;


(c) Documents;


(d) General
Intangibles;


(e) Goods;


(f) Instruments;


(g) Insurance;


(h) Intellectual
Property;


(i) Investment Related
Property;


(j) Letter of Credit
Rights;


(k) Money;


(l) Receivables and
Receivable Records;


(m) Commercial Tort
Claims;


(n) to the extent not
otherwise included above, all Collateral Records, Collateral
Support and Supporting Obligations relating to any of the
foregoing; and


(o) to the extent not
otherwise included above, all Proceeds, products, accessions, rents
and profits of or in respect of any of the foregoing.



2.2 Certain Limited
Exclusions. Notwithstanding
anything herein to the contrary, in no event shall the Collateral
include or the security interest granted under Section 2.1 hereof
attach to (a) any lease, license, contract, property rights or
agreement to which any Grantor is a party or any of its rights or
interests thereunder if and for so long as the grant of such
security interest shall constitute or result in (i) the
abandonment, invalidation or unenforceability of any right, title
or interest of any Grantor therein or (ii) in a breach or
termination pursuant to the terms of, or a default under, any such
lease, license, contract property rights 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 (or
any successor provision or provisions) of any relevant jurisdiction
or any other applicable law (including the Bankruptcy Code) or
principles of equity), provided however that the Collateral shall
include and such security interest shall attach immediately at such
time as the condition causing such abandonment, invalidation or
unenforceability shall be remedied and to the extent severable,
shall attach immediately to any portion of such lease, license,
contract, property rights or agreement that does not result in any
of the consequences specified in (i) or (ii) above; or (b) in any
of the outstanding capital stock of a Controlled Foreign
Corporation in excess of 65% of the voting power of all classes of
capital stock of such Controlled Foreign Corporation entitled to
vote; provided that immediately upon the amendment of the Tax Code
to allow the pledge of a greater percentage of the voting power of
capital stock in a Controlled Foreign Corporation without adverse
tax consequences, the Collateral shall include, and the security
interest granted by each Grantor shall attach to, such greater
percentage of capital stock of each Controlled Foreign
Corporation.



 

9







 








SECTION
3.

SECURITY FOR OBLIGATIONS;
GRANTORS REMAIN LIABLE.







3.1 Security for Obligations
. This
Agreement secures, and the Collateral is collateral security for,
the prompt and complete payment or performance in full when due,
whether at stated maturity, by required prepayment, declaration,
acceleration, demand or otherwise (including the payment of amounts
that would become due but for the operation of the automatic stay
under Section 362(a) of the Bankruptcy Code, 11 U.S.C.
§362(a) (and any successor provision thereof)), of all
Obligations with respect to every Grantor (the “Secured
Obligations”).



3.2 Continuing Liability Under
Collateral . Notwithstanding
anything herein to the contrary, (i) each Grantor shall remain liable for
all obligations under the Collateral and nothing contained herein
is intended or shall be a delegation of duties to the Collateral
Agent or any Secured Party, (ii) each Grantor shall remain liable
under each of the agreements included in the Collateral, including,
without limitation, any agreements relating to Pledged Equity
Interests, to perform all of the obligations undertaken by it
thereunder all in accordance with and pursuant to the terms and
provisions thereof and neither the Collateral Agent nor any Secured
Party shall have any obligation or liability under any of such
agreements by reason of or arising out of this Agreement or any
other document related thereto nor shall the Collateral Agent nor
any Secured Party have any obligation to make any inquiry as to the
nature or sufficiency of any payment received by it or have any
obligation to take any action to collect or enforce any rights
under any agreement included in the Collateral, including, without
limitation, any agreements relating to Pledged Equity Interests,
and (iii) the exercise by the Collateral Agent of any of its rights
hereunder shall not release any Grantor from any of its duties or
obligations under the contracts and agreements included in the
Collateral.




SECTION
4.

REPRESENTATIONS AND WARRANTIES
AND COVENANTS.







4.1 
Generally.


(a) Representations and
Warranties. Each Grantor hereby represents and warrants, on
the Restatement Date and on each Credit Date, that:


(i) it owns the
Collateral purported to be owned by it or otherwise has the rights
it purports to have in each item of Collateral and, as to all
Collateral whether now existing or hereafter acquired, will
continue to own or have such rights in each item of the Collateral,
in each case free and clear of any and all Liens, rights or claims
of all other Persons, including, without limitation, liens arising
as a result of such Grantor becoming bound (as a result of merger
or otherwise) as debtor under a security agreement entered into by
another Person, other than Permitted Liens;



 

10







 






(ii) it has indicated
on Schedule 4.1(A) (as such schedule may be amended or supplemented
from time to time): (w) the type of organization of such Grantor,
(x) the jurisdiction of organization of such Grantor, (y) its
organizational identification number and (z) the jurisdiction where
the chief executive office or its sole place of business is (or the
principal residence if such Grantor is a natural person), and for
the one-year period preceding the date hereof has been,
located;


(iii) the full legal
name of such Grantor is as set forth on Schedule 4.1(A) and it has
not done in the last five (5) years, and does not do, business
under any other name (including any trade-name or fictitious
business name) except for those names set forth on Schedule 4.1(B)
(as such schedule may be amended or supplemented from time to
time);


(iv) except as provided
on Schedule 4.1(C), it has not changed its name, jurisdiction of
organization, chief executive office or sole place of business (or
principal residence if such Grantor is a natural person) or its
corporate structure in any way (e.g., by merger, consolidation,
change in corporate form or otherwise) within the past five (5)
years;



(v) it has not within
the last five (5) years become bound (whether as a result of merger
or otherwise) as debtor under a security agreement entered into by
another Person, which has not heretofore been terminated or will be
terminated on the date hereof concurrently with the funding of the
initial Loans;


(vi) (u) upon the
filing of all UCC financing statements naming each Grantor as
“debtor” and the Collateral Agent as “secured
party” and describing the Collateral in the filing offices
set forth opposite such Grantor’s name on Schedule 4.1(E)
hereof (as such schedule may be amended or supplemented from time
to time) and other filings delivered by each Grantor, (v) upon
delivery of all Instruments, Chattel Paper and certificated Pledged
Equity Interests and Pledged Debt, (w) upon sufficient
identification of Commercial Tort Claims, (x) upon execution of a
control agreement establishing the Collateral Agent’s
“control” (within the meaning of Section 8-106, 9-106
or 9-104 of the UCC, as applicable) with respect to any Investment
Account, (y) upon consent of the issuer with respect to Letter of
Credit Rights, and (z) to the extent not subject to Article 9 of
the UCC, upon recordation of the security interests granted
hereunder in Patents, Trademarks and Copyrights in the applicable
intellectual property registries, including but not limited to the
United States Patent and Trademark Office and the United States
Copyright Office, the security interests granted to the Collateral
Agent hereunder constitute valid and perfected first priority Liens
(subject in the case of priority only to Permitted Liens and to the
rights of the United States government (including any agency or
department thereof) with respect to United States government
Receivables) on all of the Collateral;


(vii) all actions and
consents, including all filings, notices, registrations and
recordings necessary or desirable for the exercise by the
Collateral Agent of the voting or other rights provided for in this
Agreement or the exercise of remedies in respect of the Collateral
have been made or obtained;



 

11







 






(viii) other than the
financing statements filed in favor of the Collateral Agent, no
effective UCC financing statement, fixture filing or other
instrument similar in effect under any applicable law covering all
or any part of the Collateral is on file in any filing or recording
office except for (x) financing statements for which proper
termination statements have been delivered to the Collateral Agent
for filing and (y) financing statements filed in connection with
Permitted Liens;


(ix) no authorization,
approval or other action by, and no notice to or filing with, any
Governmental Authority or regulatory body is required for either
(i) the pledge or grant by any Grantor of the Liens purported to be
created in favor of the Collateral Agent hereunder or (ii) the
exercise by Collateral Agent of any rights or remedies in respect
of any Collateral (whether specifically granted or created
hereunder or created or provided for by applicable law), except (A)
for the filings contemplated by clause (vii) above and (B) as may
be required, in connection with the disposition of any Investment
Related Property, by laws generally affecting the offering and sale
of Securities;


(x) all information
supplied by any Grantor with respect to any of the Collateral (in
each case taken as a whole with respect to any particular
Collateral) is accurate and complete in all material
respects;


(xi) none of the
Collateral constitutes, or is the Proceeds of, “farm
products” (as defined in the UCC);


(xii) it does not own
any “as extracted collateral” (as defined in the UCC)
or any timber to be cut;


(xiii) except as described
on Schedule 4.1(D), such Grantor has not become bound
as a debtor, either by contract or by operation of law, by a
security agreement previously entered into by another Person;
and


(xiv) such Grantor has
been duly organized as an entity of the type as set forth opposite
such Grantor’s name on Schedule 4.1(A) solely under the laws
of the jurisdiction as set forth opposite such Grantor’s name
on Schedule 4.1(A) and remains duly existing as such. Such Grantor
has not filed any certificates of domestication, transfer or
continuance in any other jurisdiction.


(b) Covenants and Agreements. Each
Grantor hereby covenants and agrees that:


(i) except for the
security interest created by this Agreement, it shall not create or
suffer to exist any Lien upon or with respect to any of the
Collateral, except Permitted Liens, and such Grantor shall defend
the Collateral against all Persons at any time claiming any
interest therein;


(ii) it shall not
produce, use or permit any Collateral to be used unlawfully or in
violation of any provision of this Agreement or any applicable
statute, regulation or ordinance or any policy of insurance
covering the Collateral;


(iii) it shall not
change such Grantor’s name, identity, corporate structure
(e.g., by merger, consolidation, change in corporate form or
otherwise) sole place of business (or principal residence if such
Grantor is a natural person), chief executive office, type of
organization or jurisdiction of organization or establish any trade
names unless it shall have (a) notified the Collateral Agent in
writing, by executing and delivering to the Collateral Agent a
completed Pledge Supplement, substantially in the form of Exhibit A
attached hereto, together with all Supplements to Schedules
thereto, at least thirty (30) days prior to any such change or
establishment, identifying such new proposed name, identity,
corporate structure, sole place of business (or principal residence
if such Grantor is a natural person), chief executive office,
jurisdiction of organization or trade name and providing such other
information in connection therewith as the Collateral Agent may
reasonably request and (b) taken all actions necessary or advisable
to maintain the continuous validity, perfection and the same or
better priority of the Collateral Agent’s security interest
in the Collateral intended to be granted and agreed to
hereby;



 

12







 






(iv) if the Collateral
Agent or any Secured Party gives value to enable Grantor to acquire
rights in or the use of any Collateral, it shall use such value for
such purposes and such Grantor further agrees that repayment of any
Obligation shall apply on a “first-in, first-out” basis
so that the portion of the value used to acquire rights in any
Collateral shall be paid in the chronological order such Grantor
acquired rights therein;


(v) it shall pay
promptly when due all property and other taxes, assessments and
governmental charges or levies imposed upon, and all claims
(including claims for labor, materials and supplies) against, the
Collateral, except to the extent the validity thereof is being
contested in good faith; provided, such Grantor shall in any event
pay such taxes, assessments, charges, levies or claims not later
than five (5) days prior to the date of any proposed sale under any
judgment, writ or warrant of attachment entered or filed against
such Grantor or any of the Collateral as a result of the failure to
make such payment;


(vi) upon such Grantor
or any officer of such Grantor obtaining knowledge thereof, it
shall promptly notify the Collateral Agent in writing of any event
that may have a material adverse effect on the value of the
Collateral or any portion thereof, the ability of any Grantor or
the Collateral Agent to dispose of the Collateral or any portion
thereof, or the rights and remedies of the Collateral Agent in
relation thereto, including, without limitation, the levy of any
legal process against the Collateral or any portion
thereof;


(vii) it shall not take
or permit any action which could impair the Collateral
Agent’s rights in the Collateral; and


(viii) it shall not sell,
transfer or assign (by operation of law or otherwise) any
Collateral except as otherwise in accordance with the Credit
Agreement.



4.2 Equipment and Inventory

..


(a) Representations and
Warranties. Each Grantor represents and warrants, on the
Restatement Date and on each Credit Date, that:



 

13







 






(i) all of the
Equipment and Inventory included in the Collateral is kept for the
past four (4) years only at the locations specified in
Schedule 4.2 (as such schedule may be amended or supplemented
from time to time);


(ii) any Goods now or
hereafter produced by any Grantor included in the Collateral have
been and will be produced in compliance with the requirements of
the Fair Labor Standards Act, as amended; and


(iii) none of the
Inventory or Equipment is in the possession of an issuer of a
negotiable document (as defined in Section 7-104 of the UCC)
therefor or otherwise in the possession of a bailee or a
warehouseman.


(b) Covenants and Agreements. Each
Grantor covenants and agrees that:


(i) it shall keep the
Equipment, Inventory and any Documents evidencing any Equipment and
Inventory in the locations specified on Schedule 4.2 (as such
schedule may be amended or supplemented from time to time) unless
it shall have (a) notified the Collateral Agent in writing, by
executing and delivering to the Collateral Agent a completed Pledge
Supplement, substantially in the form of Exhibit A attached hereto,
together with all Supplements to Schedules thereto, at least thirty
(30) days prior to any change in locations, identifying such new
locations and providing such other information in connection
therewith as the Collateral Agent may reasonably request and (b)
taken all actions necessary or advisable to maintain the continuous
validity, perfection and the same or better priority of the
Collateral Agent’s security interest in the Collateral
intended to be granted and agreed to hereby, or to enable the
Collateral Agent to exercise and enforce its rights and remedies
hereunder, with respect to such Equipment and
Inventory;


(ii) it shall keep
correct and accurate records of the Inventory, as is customarily
maintained under similar circumstances by Persons of established
reputation engaged in similar business, and in any event in
conformity with GAAP;


(iii) it shall not
deliver any Document evidencing any Equipment and Inventory to any
Person other than the issuer of such Document to claim the Goods
evidenced therefor or the Collateral Agent;


(iv) if any Equipment
or Inventory is in possession or control of any third party, each
Grantor shall join with the Collateral Agent in notifying the third
party of the Collateral Agent’s security interest and
obtaining an acknowledgment from the third party that it is holding
the Equipment and Inventory for the benefit of the Collateral
Agent; and


(v) with respect to
any item of Equipment which is covered by a certificate of title
under a statute of any jurisdiction under the law of which
indication of a security interest on such certificate is required
as a condition of perfection thereof, upon the reasonable request
of the Collateral Agent, (A) provide information with respect to
any such Equipment in excess of $250,000 in the aggregate, (B)
execute and file with the registrar of motor vehicles or other
appropriate authority in such jurisdiction an application or other
document requesting the notation or other indication of the
security interest created hereunder on such certificate of title,
and (C) deliver to the Collateral Agent copies of all such
applications or other documents filed during such calendar quarter
and copies of all such certificates of title issued during such
calendar quarter indicating the security interest created hereunder
in the items of Equipment covered thereby.



 

14







 







4.3 Receivables .


(a) Representations and
Warranties. Each Grantor represents and warrants, on the
Restatement Date and on each Credit Date, that:


(i) each Receivable
(a) is and will be the legal, valid and binding obligation of the
Account Debtor in respect thereof, representing an unsatisfied
obligation of such Account Debtor, (b) is and will be enforceable
in accordance with its terms, (c) is not and will not be subject to
any setoffs, defenses, taxes, counterclaims (except with respect to
refunds, returns and allowances in the ordinary course of business
with respect to damaged merchandise) and (d) is and will be in
compliance with all applicable laws, whether federal, state, local
or foreign;


(ii) other than hauling
contracts with municipalities entered into in the ordinary course
of business, none of the Account Debtors in respect of any
Receivable is the government of the United States, any agency or
instrumentality thereof, any state or municipality or any foreign
sovereign. No Receivable in excess of $250,000 in the
aggregate requires the
consent of the Account Debtor in respect thereof in connection with
the pledge hereunder, except any consent which has been
obtained;


(iii) no Receivable is
evidenced by, or constitutes, an Instrument or Chattel Paper which
has not been delivered to, or otherwise subjected to the control
of, the Collateral Agent to the extent required by, and in
accordance with Section 4.3(c); and


(iv) each Grantor has
delivered to the Collateral Agent a complete and correct copy of
each standard form of document under which a Receivable may
arise.


(b) Covenants and Agreements: Each
Grantor hereby covenants and agrees that:


(i) it shall keep and
maintain at its own cost and expense satisfactory and complete
records of the Receivables, including, but not limited to, the
originals of all documentation with respect to all Receivables and
records of all payments received and all credits granted on the
Receivables, all merchandise returned and all other dealings
therewith;


(ii) it shall mark
conspicuously, in form and manner reasonably satisfactory to the
Collateral Agent, all Chattel Paper, Instruments and other evidence
of Receivables (other than any delivered to the Collateral Agent as
provided herein), as well as the Receivables Records with an
appropriate reference to the fact that the Collateral Agent has a
security interest therein;


(iii) it shall perform
in all material respects all of its obligations with respect to the
Receivables;



 

15







 






(iv) it shall not
amend, modify, terminate or waive any provision of any Receivable
in any manner which could reasonably be expected to have a material
adverse effect on the value of such Receivable as Collateral. Other
than in the ordinary course of business as generally conducted by
it on and prior to the date hereof, and except as otherwise
provided in subsection (v) below, following an Event of Default,
such Grantor shall not (w) grant any extension or renewal of the
time of payment of any Receivable, (x) compromise or settle any
dispute, claim or legal proceeding with respect to any Receivable
for less than the total unpaid balance thereof, (y) release, wholly
or partially, any Person liable for the payment thereof, or (z)
allow any credit or discount thereon;


(v) except as
otherwise provided in this subsection, each Grantor shall continue
to collect all amounts due or to become due to such Grantor under
the Receivables and any Supporting Obligation and diligently
exercise each material right it may have under any Receivable any
Supporting Obligation or Collateral Support, in each case, at its
own expense, and in connection with such collections and exercise,
such Grantor shall take such action as such Grantor or the
Collateral Agent may deem necessary or advisable. Notwithstanding
the foregoing, the Collateral Agent shall have the right at any
time to notify, or require any Grantor to notify, any Account
Debtor of the Collateral Agent’s security interest in the
Receivables and any Supporting Obligation and, in addition, at any
time following the occurrence and during the continuation of an
Event of Default, the Collateral Agent may: (1) direct the Account
Debtors under any Receivables to make payment of all amounts due or
to become due to such Grantor thereunder directly to the Collateral
Agent; (2) notify, or require any Grantor to notify, each Person
maintaining a lockbox or similar arrangement to which Account
Debtors under any Receivables have been directed to make payment to
remit all amounts representing collections on checks and other
payment items from time to time sent to or deposited in such
lockbox or other arrangement directly to the Collateral Agent; and
(3) enforce, at the expense of such Grantor, collection of any such
Receivables and to adjust, settle or compromise the amount or
payment thereof, in the same manner and to the same extent as such
Grantor might have done. If the Collateral Agent notifies any
Grantor that it has elected to collect the Receivables in
accordance with the preceding sentence, any payments of Receivables
received by such Grantor shall be forthwith (and in any event
within two (2) Business Days) deposited by such Grantor in the
exact form received, duly indorsed by such Grantor to the
Collateral Agent if required, in the Collateral Account maintained
under the sole dominion and control of the Collateral Agent, and
until so turned over, all amounts and proceeds (including checks
and other instruments) received by such Grantor in respect of the
Receivables, any Supporting Obligation or Collateral Support shall
be received in trust for the benefit of the Collateral Agent
hereunder and shall be segregated from other funds of such Grantor
and such Grantor shall not adjust, settle or compromise the amount
or payment of any Receivable, or release wholly or partly any
Account Debtor or obligor thereof, or allow any credit or discount
thereon; and


(vi) it shall use its
best efforts to keep in full force and effect any Supporting
Obligation or Collateral Support relating to any
Receivable.


(c) Delivery and Control of
Receivables. With respect to any Receivables in excess of
$50,000 in the aggregate that is evidenced by, or constitutes,
Chattel Paper or Instruments, each Grantor shall cause each
originally executed copy thereof to be delivered to the Collateral
Agent (or its agent or designee) appropriately indorsed to the
Collateral Agent or indorsed in blank: (i) with respect to any such
Receivables in existence on the date hereof, on or prior to the
date hereof and (ii) with respect to any such Receivables hereafter
arising, within ten (10) days of such Grantor acquiring rights
therein. With respect to any Receivables in excess of $50,000 in
the aggregate which would constitute “electronic chattel
paper” under Article 9 of the UCC, each Grantor shall take
all steps necessary to give the Collateral Agent control over such
Receivables (within the meaning of Section 9-105 of the UCC): (i)
with respect to any such Receivables in existence on the date
hereof, on or prior to the date hereof and (ii) with respect to any
such Receivables hereafter arising, within ten (10) days of
such Grantor acquiring rights therein. Any Receivable not otherwise
required to be delivered or subjected to the control of the
Collateral Agent in accordance with this subsection (c) shall be
delivered or subjected to such control upon request of the
Collateral Agent.



 

16







 







4.4 Investment Related
Property.



4.4.1 



4.4.1 Investment
Related Property Generally



(a) Covenants and Agreements. Each
Grantor hereby covenants and agrees that:


(i) in the event it
acquires rights in any Investment Related Property after the date
hereof, it shall deliver to the Collateral Agent a completed Pledge
Supplement, substantially in the form of Exhibit A attached hereto,
together with all Supplements to Schedules thereto, reflecting such
new Investment Related Property and all other Investment Related
Property. Notwithstanding the foregoing, it is understood and
agreed that the security interest of the Collateral Agent shall
attach to all Investment Related Property immediately upon any
Grantor’s acquisition of rights therein and shall not be
affected by the failure of any Grantor to deliver a supplement to
Schedule 4.4 as required hereby;


(ii) except as provided
in the next sentence, in the event such Grantor receives any
dividends, interest or distributions on any Investment Related
Property, or any securities or other property upon the merger,
consolidation, liquidation or dissolution of any issuer of any
Investment Related Property, then (a) such dividends, interest or
distributions and securities or other property shall be included in
the definition of Collateral without further action and (b) such
Grantor shall immediately take all steps, if any, necessary or
advisable to ensure the validity, perfection, priority and, if
applicable, control of the Collateral Agent over such Investment
Related Property (including, without limitation, delivery thereof
to the Collateral Agent) and pending any such action such Grantor
shall be deemed to hold such dividends, interest, distributions,
securities or other property in trust for the benefit of the
Collateral Agent and shall segregate such dividends, distributions,
Securities or other property from all other property of such
Grantor. Notwithstanding the foregoing, so long as no Event of
Default shall have occurred and be continuing, the Collateral Agent
authorizes each Grantor to retain all ordinary cash dividends and
distributions paid in the normal course of the business of the
issuer and consistent with the past practice of the issuer and all
scheduled payments of interest;


(iii) each Grantor
consents to the grant by each other Grantor of a Security Interest
in all Investment Related Property to the Collateral
Agent.



 

17







 






(b) Delivery and
Control.


(i) Each Grantor agrees
that with respect to any Investment Related Property in which it
currently has rights it shall comply with the provisions of this
Section 4.4.1(b) on or before the Credit Date and with respect to
any Investment Related Property hereafter acquired by such Grantor
it shall comply with the provisions of this Section 4.4.1(b)
immediately upon acquiring rights therein, in each case in form and
substance satisfactory to the Collateral Agent. With respect to any
Investment Related Property that is represented by a certificate or
that is an “instrument” (other than any Investment
Related Property credited to a Securities Account) it shall cause
such certificate or instrument to be delivered to the Collateral
Agent, indorsed in blank by an “effective indorsement”
(as defined in Section 8-107 of the UCC), regardless of
whether such certificate constitutes a “certificated
security” for purposes of the UCC. With respect to any
Investment Related Property that is an “uncertificated
security” for purposes of the UCC (other than any
“uncertificated securities” credited to a Securities
Account), it shall cause the issuer of such uncertificated security
to either (i) register the Collateral Agent as the registered owner
thereof on the books and records of the issuer or (ii) execute an
agreement substantially in the form of Exhibit B hereto, pursuant
to which such issuer agrees to comply with the Collateral
Agent’s instructions with respect to such uncertificated
security without further consent by such Grantor. In addition to
the foregoing, with respect to all Investment Related Property
(including, without limitation, Investment Related Property
acquired after the Restatement Date), each Grantor shall deliver to
Collateral Agent (x) a duly executed irrevocable proxy coupled with
an interest, in substantially the form of Exhibit H hereto
(“Irrevocable
Proxy”), (y) a duly acknowledged equity interest
registration page, in blank, from each Issuer, substantially in the
form of Exhibit I hereto, or otherwise in form and substance
satisfactory to Collateral Agent (“Registration Page”) and (z) cause
each Issuer to execute and deliver a pledge acknowledgement
substantially in the form of Exhibit J hereto (“Pledge
Acknowledgement”).


(c) Voting and
Distributions.


(i) So long as no
Event of Default shall have occurred and be
continuing:




(1)

except as
otherwise provided under the covenants and agreements relating to
Investment Related Property in this Agreement or elsewhere herein
or in the Credit Agreement, each Grantor shall be entitled to
exercise or refrain from exercising any and all voting and other
consensual rights pertaining to the Investment Related Property or
any part thereof for any purpose not inconsistent with the terms of
this Agreement or the Credit Agreement; provided, no Grantor shall
exercise or refrain from exercising any such right if the
Collateral Agent shall have notified such Grantor that, in the
Collateral Agent’s reasonable judgment, such action would
have a Material Adverse Effect on the value of the Investment
Related Property or any part thereof; and provided further, such
Grantor shall give the Collateral Agent at least five (5) Business
Days prior written notice of the manner in which it intends to
exercise, or the reasons for refraining from exercising, any such
right; it being understood, however, that neither the voting by
such Grantor of any Pledged Stock for, or such Grantor’s
consent to, the election of directors (or similar governing body)
at a regularly scheduled annual or other meeting of stockholders or
with respect to incidental matters at any such meeting, nor such
Grantor’s consent to or approval of any action otherwise
permitted under this Agreement and the Credit Agreement, shall be
deemed inconsistent with the terms of this Agreement or the Credit
Agreement within the meaning of this Section 4.4(c)(i)(1), and no
notice of any such voting or consent need be given to the
Collateral Agent; and







 

18







 








(2)

the Collateral
Agent shall promptly execute and deliver (or cause to be executed
and delivered) to each Grantor all proxies, and other instruments
as such Grantor may from time to time reasonably request for the
purpose of enabling such Grantor to exercise the voting and other
consensual rights when and to the extent which it is entitled to
exercise pursuant to clause (1) above;








(3)

Upon the
occurrence and during the continuation of an Event of
Default:







(A) 

all rights of each
Grantor to exercise or refrain from exercising the voting and other
consensual rights which it would otherwise be entitled to exercise
pursuant hereto shall cease and Collateral Agent (personally or
through an agent) shall thereupon be solely authorized and
empowered to (i) transfer and register in the Collateral
Agent’s name, or in the name of the Collateral Agent's
nominee, the whole or any part of the Investment Related Property,
it being acknowledged by each Grantor (in its capacity as a Grantor
and, if such Grantor is an Issuer, in its capacity as an Issuer)
that such transfer and registration may be effected by the
Collateral Agent by the delivery of a Registration Page to the
applicable Issuer, reflecting the Collateral Agent or its designee
as the holder of such Investment Related Property, or otherwise by
the Collateral Agent through its irrevocable appointment as
attorney-in-fact pursuant to the terms hereof, (ii) exchange
certificates or instruments evidencing or representing Investment
Related Property for certificates or instruments of smaller or
larger denominations, (iii) exercise the voting and all other
rights in respect of the Investment Related Property as a holder
with respect thereto with or without actually becoming the holder
thereof (including, without limitation, all economic rights, all
control rights, authority and powers, and all status rights of such
Grantor as a member, shareholder, or other owner of any Issuer)
with full power of substitution to do so, (iv) collect and
receive all dividends and other payments and distributions made
thereon, (v) notify the parties obligated on any of the
Investment Related Property to make payment to the Collateral Agent
of any amounts due or to become due thereunder, (vi) endorse
instruments in the name of such Grantor to allow collection of any
of the Investment Related Property, (vii) enforce collection
of any of the Investment Related Property by suit or otherwise, and
surrender, release, or exchange all or any part thereof, or
compromise or renew for any period (whether or not longer than the
original period) any liabilities of any nature of any Person with
respect thereto, (viii) consummate any sales of Investment
Related Property or exercise other rights as set forth herein,
(ix) otherwise act with respect to the Investment Related
Property as though the Collateral Agent was the outright owner
thereof, and/or (x) exercise any other rights or remedies the
Collateral Agent may have under the UCC or other applicable law;
and; and






 



(B) 

in order to permit
the Collateral Agent to exercise the voting and other consensual
rights which it may be entitled to exercise pursuant hereto and to
receive all dividends and other distributions which it may be
entitled to receive hereunder: (1) each Grantor shall promptly
execute and deliver (or cause to be executed and delivered) to the
Collateral Agent all proxies, dividend payment orders and other
instruments as the Collateral Agent may from time to time
reasonably request and (2) each Grantor acknowledges that the
Collateral Agent may utilize the power of attorney and proxy set
forth in Section 6.1.







 

19







 






 



4.4.2 Pledged
Equity Interests



(a) Representations and
Warranties. Each Grantor hereby represents and warrants, on
the Restatement Date and on each Credit Date, that:


(i) Schedule 4.4(A)
(as such schedule may be amended or supplemented from time to time)
sets forth under the headings “Pledged Stock, “Pledged
LLC Interests,” “Pledged Partnership Interests”
and “Pledged Trust Interests,” respectively, all of the
Pledged Stock, Pledged LLC Interests, Pledged Partnership Interests
and Pledged Trust Interests owned by any Grantor and such Pledged
Equity Interests constitute the percentage of issued and
outstanding shares of stock, percentage of membership interests,
percentage of partnership interests or percentage of beneficial
interest of the respective issuers thereof indicated on such
Schedule;


(ii) except as set
forth on Schedule 4.4(B), it has not acquired any equity interests
of another entity or substantially all the assets of another entity
within the past five (5) years;


(iii) it is the record
and beneficial owner of the Pledged Equity Interests free of all
Liens, rights or claims of other Persons and there are no
outstanding warrants, options or other rights to purchase, or
shareholder, voting trust or similar agreements outstanding with
respect to, or property that is convertible into, or that requires
the issuance or sale of, any Pledged Equity Interests;


(iv) it has the
requisite authority to pledge, assign, transfer, deliver, deposit
and set over the Pledged Equity Interests to the Collateral Agent
as provided herein;


(v) the pledge by such
Grantor of the Pledged Equity Interests pursuant to this Agreement
does not violate (1) the Organizational Documents of such Grantor
or any Issuer of such Pledged Equity Interests, or any indenture,
mortgage or material agreement to which such Grantor is a party or
by which such Grantor’s properties or assets may be bound,
(2) any restriction on such transfer or encumbrance of such Pledged
Equity Interests or (3) any applicable securities law or other
applicable law;


(vi) without limiting
the generality of Section 4.1(a)(v), no consent of any Person
including any other general or limited partner, any other member of
a limited liability company, any other shareholder or any other
trust beneficiary is necessary or desirable in connection with the
creation, perfection or first priority status of the security
interest of the Collateral Agent in any Pledged Equity Interests or
the exercise by the Collateral Agent of the voting or other rights
provided for in this Agreement or the exercise of remedies in
respect thereof;



 

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(vii) such Grantor has
caused each Issuer to amend or to otherwise modify its
Organizational Documents, books, records, and related agreements,
documents, and instruments, as applicable, to reflect the rights
and interests of the Collateral Agent hereunder, and to the extent
required to enable and empower the Collateral Agent to exercise and
enforce its rights and remedies hereunder in respect of the Pledged
Equity Interests;


(viii) No material
authorization or approval or other action by, and no material
notice to or filing with, any Governmental Authority is required to
be obtained or made by such Grantor for (a) the due execution,
delivery, and performance by such Grantor of this Agreement, (b)
the grant by such Grantor, or the perfection, of the Liens and
security interests created hereby in the Pledged Equity Interests,
or (c) the exercise by the Collateral Agent in all material
respects of its rights and remedies hereunder, except as may be
required in connection with any sale of any Pledged Equity
Interests by laws affecting the offering and sale of securities
generally;


(ix) none of the
Pledged Equity Interests are or represent interests in Issuers
that: (a) are registered as investment companies or (b) are dealt
in or traded on securities exchanges or markets;


(x) except as
otherwise set forth on Schedule 4.4(C), none of the Pledged Equity
Interests are or represent interests in Issuers that have opted to
be treated as securities under the uniform commercial code of any
jurisdiction; and


(xi) with respect to
any Pledged Equity Interests constituting uncertificated
securities, the execution and delivery of this Agreement by the
applicable Grantor and Issuer will perfect Collateral Agent’s
security interest in such Pledged Equity Interests and proceeds
thereof by “control”, and with respect to any Pledged
Equity Interest constituting certificated securities, the delivery
of the certificate representing such Pledged Equity Interest
endorsed to Collateral Agent or in blank will perfect Collateral
Agent’s security interest in such Pledged Equity Interests
and any proceeds thereof by “control”.


(b) Covenants and Agreements. Each
Grantor hereby covenants and agrees that:


(i) without the prior
written consent of the Collateral Agent, it shall not vote to
enable or take any other action to: (a) amend or terminate any
partnership agreement, limited liability company agreement,
certificate of incorporation, by-laws or other organizational
documents in any way that materially changes the rights of such
Grantor with respect to any Investment Related Property or
adversely affects the validity, perfection or priority of the
Collateral Agent’s security interest, (b) permit any Issuer
of any Pledged Equity Interest to issue any additional stock,
partnership interests, limited liability company interests or other
equity interests of any nature or to issue securities convertible
into or granting the right of purchase or exchange for any stock or
other equity interest of any nature of such issuer, (c) other than
as permitted under the Credit Agreement, permit any Issuer of any
Pledged Equity Interest to dispose of all or a material portion of
their assets, (d) waive any default under or breach of any terms of
organizational document relating to the issuer of any Pledged
Equity Interest or the terms of any Pledged Debt, (e) cause any
issuer of any Pledged Equity Interests which are not securities
(for purposes of the UCC) on the date hereof to elect or otherwise
take any action to cause such Pledged Equity Interests to be
treated as securities for purposes of the UCC; provided, however,
notwithstanding the foregoing, if any Issuer of any Pledged Equity
Interests takes any such action in violation of the foregoing in
this clause (e), such Grantor shall promptly notify the Collateral
Agent in writing of any such election or action and, in such event,
shall take all steps necessary or advisable to establish the
Collateral Agent’s “control” thereof, or (f)
alter the voting rights with respect to any of the Pledged Equity
Interests;



 

21







 






(ii) it shall comply
with all of its obligations under any partnership agreement or
limited liability company agreement relating to Pledged Partnership
Interests or Pledged LLC Interests and shall enforce all of its
rights with respect to any Investment Related
Property;


(iii) without the prior
written consent of the Collateral Agent, it shall not permit any
issuer of any Pledged Equity Interest to merge or consolidate
unless (i) such issuer creates a security interest that is
perfected by a filed financing statement (that is not effective
solely under section 9-508 of the UCC) in collateral in which such
new debtor has or acquires rights, and (ii) all the outstanding
capital stock or other equity interests of the surviving or
resulting corporation, limited liability company, partnership or
other entity is, upon such merger or consolidation, pledged
hereunder and no cash, securities or other property is distributed
in respect of the outstanding equity interests of any other
constituent Grantor; provided that if the surviving or resulting
Grantors upon any such merger or consolidation involving an issuer
which is a Controlled Foreign Corporation, then such Grantor shall
only be required to pledge equity interests in accordance with
Section 2.2; and


(iv) each Grantor
consents to the grant by each other Grantor of a security interest
in all Investment Related Property to the Collateral Agent and,
without limiting the foregoing, consents to the transfer of any
Pledged Partnership Interest and any Pledged LLC Interest to the
Collateral Agent or its nominee following an Event of Default and
to the substitution of the Collateral Agent or its nominee as a
partner in any partnership or as a member in any limited liability
company with all the rights and powers related
thereto.



4.4.3 Pledged
Debt



(a) Representations and
Warranties. Each Grantor hereby represents and warrants, on
the Restatement Date and each Credit Date, that:


(i) Schedule 4.4 (as
such schedule may be amended or supplemented from time to time)
sets forth under the heading “Pledged Debt” all of the
Pledged Debt owned by any Grantor and all of such Pledged Debt has
been duly authorized, authenticated or issued, and delivered and is
the legal, valid and binding obligation of the issuers thereof and
is not in default and constitutes all of the issued and outstanding
inter-company Indebtedness;


(b) Covenants and Agreements. Each
Grantor hereby covenants and agrees that:



 

22







 






(i) it shall notify
the Collateral Agent of any default under any Pledged Debt that has
caused, either in any individual case or in the aggregate, a
Material Adverse Effect.



4.4.4 Investment
Accounts



(a) Representations and
Warranties. Each Grantor hereby represents and warrants, on
the Restatement Date and each Credit Date, that:


(i) Schedule 4.4
hereto (as such schedule may be amended or supplemented from time
to time) sets forth under the headings “Securities
Accounts” and “Commodities Accounts,”
respectively, all of the Securities Accounts and Commodities
Accounts in which each Grantor has an interest. Each Grantor is the
sole entitlement holder of each such Securities Account and
Commodity Account, and such Grantor has not consented to, and is
not otherwise aware of, any Person (other than the Collateral Agent
pursuant hereto) having “control” (within the meanings
of Sections 8-106 and 9-106 of the UCC) over, or any other interest
in, any such Securities Account or Commodity Account or securities
or other property credited thereto;


(ii) Schedule 4.4
hereto (as such schedule may be amended or supplemented from time
to time) sets forth under the headings “Deposit
Accounts” all of the Deposit Accounts in which each Grantor
has an interest. Each Grantor is the sole account holder of each
such Deposit Account and such Grantor has not consented to, and is
not otherwise aware of, any Person (other than the Collateral Agent
pursuant hereto) having either sole dominion and control (within
the meaning of common law) or “control” (within the
meanings of Section 9-104 of the UCC) over, or any other interest
in, any such Deposit Account or any money or other property
deposited therein; and


(iii) Each Grantor has
taken all actions necessary or desirable, including those specified
in Section 4.4.4(c), to: (a) establish Collateral Agent’s
“control” (within the meanings of Sections 8-106 and
9-106 of the UCC) over any portion of the Investment Related
Property constituting Certificated Securities, Uncertificated
Securities, Securities Accounts, Securities Entitlements or
Commodities Accounts (each as defined in the UCC); (b) establish
the Collateral Agent’s “control” (within the
meaning of Section 9-104 of the UCC) over all Deposit Accounts; and
(c) deliver all Instruments to the Collateral Agent.


(b) Covenant and Agreement. Each
Grantor hereby covenants and agrees with the Collateral Agent and
each other Secured Party that it shall not close or terminate any
Investment Account without the prior consent of the Collateral
Agent and unless a successor or replacement account has been
established with the consent of the Collateral Agent with respect
to which successor or replacement account a control agreement has
been entered into by the appropriate Grantor, Collateral Agent and
securities intermediary or depository institution at which such
successor or replacement account is to be maintained in accordance
with the provisions of Section 4.4.4(c).


(c) Delivery
and Control


(i) With respect to
any Investment Related Property consisting of Securities Accounts
or Securities Entitlements, it shall cause the securities
intermediary maintaining such Securities Account or Securities
Entitlement to enter into an agreement substantially in the form of
Exhibit C hereto pursuant to which it shall agree to comply with
the Collateral Agent’s “entitlement orders”
without further consent by such Grantor. With respect to any
Investment Related Property that is a “Deposit
Account,” it shall cause the depositary institution
maintaining such account to enter into an agreement substantially
in the form of Exhibit D hereto, pursuant to which the Collateral
Agent shall have both sole dominion and control over such Deposit
Account (within the meaning of the common law) and
“control” (within the meaning of Section 9-104 of
the UCC) over such Deposit Account. Each Grantor shall have entered
into such control agreement or agreements with respect to: (i) any
Securities Accounts, Securities Entitlements or Deposit Accounts
that exist on the Credit Date, as of or prior to the Credit Date
and (ii) any Securities Accounts, Securities Entitlements or
Deposit Accounts that are created or acquired after the Credit
Date, as of or prior to the deposit or transfer of any such
Securities Entitlements or funds, whether constituting moneys or
investments, into such Securities Accounts or Deposit
Accounts.



 

23







 






In
addition to the foregoing, if any issuer of any Investment Related
Property is located in a jurisdiction outside of the United States,
each Grantor shall take such additional actions, including, without
limitation, causing the issuer to register the pledge on its books
and records or making such filings or recordings, in each case as
may be necessary or advisable, under the laws of such
issuer’s jurisdiction to insure the validity, perfection and
priority of the security interest of the Collateral Agent. Upon the
occurrence of an Event of Default, the Collateral Agent shall have
the right, without notice to any Grantor, to transfer all or any
portion of the Investment Related Property to its name or the name
of its nominee or agent. In addition, the Collateral Agent shall
have the right at any time, without notice to any Grantor, to
exchange any certificates or instruments representing any
Investment Related Property for certificates or instruments of
smaller or larger denominations.


 



4.5 Material Contracts
.


(a) Representations and
Warranties. Each Grantor hereby represents and warrants, on
the Restatement Date and on each Credit Date, that:


(i) Schedule 4.5 (as
such schedule may be amended or supplemented from time to time)
sets forth all of the Material Contracts to which such Grantor has
rights;


(ii) the Material
Contracts, true and complete copies (including any amendments or
supplements thereof) of which have been furnished to the Collateral
Agent, have been duly authorized, executed and delivered by all
parties thereto, are in full force and effect and are binding upon
and enforceable against all parties thereto in accordance with
their respective terms. There exists no default under any Material
Contract by any party thereto and neither such Grantor, nor to its
best knowledge, any other Person party thereto is likely to become
in default thereunder and no Person party thereto has any defenses,
counterclaims or right of set-off with respect to any Material
Contract.


(b) Covenants and Agreements. Each
Grantor hereby covenants and agrees that:



 

24







 






(i) in addition to any
rights under the Section of this Agreement relating to Receivables,
the Collateral Agent may, upon notice to the Grantor or Company
Representative on behalf of Grantors, at any time notify, or
require any Grantor to so notify, the counterparty on any Material
Contract of the security interest of the Collateral Agent therein.
In addition, after the occurrence and during the continuance of an
Event of Default, the Collateral Agent may upon written notice to
the applicable Grantor, notify, or require any Grantor to notify,
the counterparty to make all payments under the Material Contracts
directly to the Collateral Agent;


(ii) each Grantor shall
deliver promptly to the Collateral Agent a copy of each material
demand, notice or document received by it relating in any way to
any Material Contract;


(iii) each Grantor shall
deliver promptly to the Collateral Agent, and in any event within
ten (10) Business Days, after (1) any Material Contract of such
Grantor is terminated or amended in a manner that is materially
adverse to such Grantor or (2) any new Material Contract is entered
into by such Grantor, a written statement describing such event,
with copies of such material amendments or new contracts, delivered
to the Collateral Agent (to the extent such delivery is permitted
by the terms of any such Material Contract, provided, no
prohibition on delivery shall be effective if it were bargained for
by such Grantor with the intent of avoiding compliance with this
Section 4.5(b)(iii)), and an explanation of any actions being taken
with respect thereto;


(iv) it shall perform
in all material respects all of its obligations with respect to the
Material Contracts;


(v) it shall promptly
and diligently exercise each material right (except the right of
termination) it may have under any Material Contract, any
Supporting Obligation or Collateral Support, in each case, at its
own expense, and in connection with such collections and exercise,
such Grantor shall take such action as such Grantor or the
Collateral Agent may deem necessary or advisable;


(vi) it shall use its
best efforts to keep in full force and effect any Supporting
Obligation or Collateral Support relating to any Material Contract;
and


(vii) each Grantor
shall, within thirty (30) days of the date hereof with respect to
any Non-Assignable Contract in effect on the date hereof and within
thirty (30) days after entering into any Non-Assignable Contract
after the Restatement Date, request in writing the consent of the
counterparty or counterparties to the Non-Assignable Contract
pursuant to the terms of such Non-Assignable Contract or applicable
law to the assignment or granting of a security interest in such
Non-Assignable Contract to Secured Party and use its best efforts
to obtain such consent as soon as practicable
thereafter.



4.6 Letter of Credit Rights
.


(a) Representations and
Warranties. Each Grantor hereby represents and warrants, on
the Restatement Date and on each Credit Date, that:


(i) all material
letters of credit to which such Grantor has rights is listed on
Schedule 4.6 (as such schedule may be amended or supplemented from
time to time) hereto; and



 

25







 






(ii) it has obtained
the consent of each issuer of any material letter of credit to the
assignment of the proceeds of the letter of credit to the
Collateral Agent.


(b) Covenants and Agreements. Each
Grantor hereby covenants and agrees that with respect to any
material letter of credit hereafter arising it shall obtain the
consent of the issuer thereof to the assignment of the proceeds of
the letter of credit to the Collateral Agent and shall deliver to
the Collateral Agent a completed Pledge Supplement, substantially
in the form of Exhibit A attached hereto, together with all
Supplements to Schedules thereto.



4.7 Intellectual Property.


(a) Representations and
Warranties. Except as disclosed in Schedule 4.7(H) (as such
schedule may be amended or supplemented from time to time), each
Grantor hereby represents and warrants, on the Restatement Date and
on each Credit Date, that:


(i) Schedule 4.7 (as
such schedule may be amended or supplemented from time to time)
sets forth a true and complete list of (i) all United States, state
and foreign registrations of and applications for Patents,
Trademarks, and Copyrights owned by each Grantor and (ii) all
Patent Licenses, Trademark Licenses, Trade Secret Licenses and
Copyright Licenses material to the business of such
Grantor;


(ii) it is the sole and
exclusive owner of the entire right, title, and interest in and to
all Intellectual Property listed on Schedule 4.7 (as such schedule
may be amended or supplemented from time to time), and owns or has
the valid right to use all other Intellectual Property used in or
necessary to conduct its business, free and clear of all Liens,
claims, encumbrances and licenses, except for Permitted Liens and
the licenses set forth on Schedule 4.7(B), (D), (F) and (G) (as
each may be amended or supplemented from time to
time);


(iii) all Intellectual
Property is subsisting and has not been adjudged invalid or
unenforceable, in whole or in part, and each Grantor has performed
all acts and has paid all renewal, maintenance, and other fees and
taxes required to maintain each and every registration and
application of Copyrights, Patents and Trademarks in full force and
effect;


(iv) all Intellectual
Property is valid and enforceable; no holding, decision, or
judgment has been rendered in any action or proceeding before any
court or administrative authority challenging the validity of, such
Grantor’s right to register, or such Grantor’s rights
to own or use, any Intellectual Property and no such action or
proceeding is pending or, to the best of such Grantor’s
knowledge, threatened;


(v) all registrations
and applications for Copyrights, Patents and Trademarks are
standing in the name of each Grantor, and none of the Trademarks,
Patents, Copyrights or Trade Secrets has been licensed by any
Grantor to any Affiliate or third party, except as disclosed in
Schedule 4.7(B), (D), (F), or (G) (as each may be amended or
supplemented from time to time);


(vi) each Grantor has
been using appropriate statutory notice of registration in
connection with its use of registered Trademarks, proper marking
practices in connection with the use of Patents, and appropriate
notice of copyright in connection with the publication of
Copyrights material to the business of such Grantor;



 

26







 






(vii) each Grantor uses
adequate standards of quality in the manufacture, distribution, and
sale of all products sold and in the provision of all services
rendered under or in connection with all Trademark Collateral and
has taken all action necessary to insure that all licensees of the
Trademark Collateral owned by such Grantor use such adequate
standards of quality;


(viii) the conduct of
such Grantor’s business does not infringe upon or otherwise
violate any trademark, patent, copyright, trade secret or other
intellectual property right owned or controlled by a third party;
no claim has been made that the use of any Intellectual Property
owned or used by Grantor (or any of its respective licensees)
violates the asserted rights of any third party;


(ix) to the best of
each Grantor’s knowledge, no third party is infringing upon
or otherwise violating any rights in any Intellectual Property
owned or used by such Grantor, or any of its respective
licensees;


(x) no settlement or
consents, covenants not to sue, nonassertion assurances, or
releases have been entered into by Grantor or to which Grantor is
bound that adversely affect Grantor’s rights to own or use
any Intellectual Property; and


(xi) each Grantor has
not made a previous assignment, sale, transfer or agreement
constituting a present or future assignment, sale, transfer or
agreement of any Intellectual Property that has not been terminated
or released. There is no effective financing statement or other
document or instrument now executed, or on file or recorded in any
public office, granting a security interest in or otherwise
encumbering any part of the Intellectual Property, other than in
favor of the Collateral Agent.


(b) Covenants and Agreements. Each
Grantor hereby covenants and agrees as follows:


(i) it shall not do
any act or omit to do any act whereby any of the Intellectual
Property which is material to the business of Grantor may lapse, or
become abandoned, dedicated to the public, or unenforceable, or
which would adversely affect the validity, grant, or enforceability
of the security interest granted therein;


(ii) it shall not, with
respect to any Trademarks which are material to the business of any
Grantor, cease the use of any of such Trademarks or fail to
maintain the level of the quality of products sold and services
rendered under any of such Trademark at a level at least
substantially consistent with the quality of such products and
services as of the date hereof, and each Grantor shall take all
steps necessary to insure that licensees of such Trademarks use
such consistent standards of quality;


(iii) it shall, within
thirty (30) days of the creation or acquisition of any
Copyrightable work which is material to the business of Grantor,
apply to register the Copyright in the United States Copyright
Office;


(iv) it shall promptly
notify the Collateral Agent if it knows or has reason to know that
any item of the Intellectual Property that is material to the
business of any Grantor may become (a) abandoned or dedicated to
the public or placed in the public domain, (b) invalid or
unenforceable, or (c) subject to any adverse determination or
development (including the institution of proceedings) in any
action or proceeding in the United States Patent and Trademark
Office, the United States Copyright Office, any state registry, any
foreign counterpart of the foregoing, or any court;



 

27







 






(v) it shall take all
reasonable steps in the United States Patent and Trademark Office,
the United States Copyright Office, any state registry or any
foreign counterpart of the foregoing, to pursue any application and
maintain any registration of each Trademark, Patent, and Copyright
owned by any Grantor and material to its business which is now or
shall become included in the Intellectual Property including, but
not limited to, those items on Schedule 4.7(A), (C) and (E) (as
each may be amended or supplemented from time to
time);


(vi) in the event that
any Intellectual Property owned by or exclusively licensed to any
Grantor is infringed, misappropriated, or diluted by a third party,
such Grantor shall promptly take all reasonable actions to stop
such infringement, misappropriation, or dilution and protect its
rights in such Intellectual Property including, but not limited to,
the initiation of a suit for injunctive relief and to recover
damages;


(vii) it shall promptly
(but in no event more than thirty (30) days after any Grantor
obtains knowledge thereof) report to the Collateral Agent (i) the
filing of any application to register any Intellectual Property
with the United States Patent and Trademark Office, the United
States Copyright Office, or any state registry or foreign
counterpart of the foregoing (whether such application is filed by
such Grantor or through any agent, employee, licensee, or designee
thereof) and (ii) the registration of any Intellectual Property by
any such office, in each case by executing and delivering to the
Collateral Agent a completed Pledge Supplement, substantially in
the form of Exhibit A attached hereto, together with all
Supplements to Schedules thereto;


(viii) it shall, promptly
upon the reasonable request of the Collateral Agent, execute and
deliver to the Collateral Agent any document required to
acknowledge, confirm, register, record, or perfect the Collateral
Agent’s interest in any part of the Intellectual Property,
whether now owned or hereafter acquired;


(ix) except with the
prior consent of the Collateral Agent or as permitted under the
Credit Agreement, each Grantor shall not execute, and there will
not be on file in any public office, any financing statement or
other document or instruments, except financing statements or other
documents or instruments filed or to be filed in favor of the
Collateral Agent and each Grantor shall not sell, assign, transfer,
license, grant any option, or create or suffer to exist any Lien
upon or with respect to the Intellectual Property, except for the
Lien created by and under this Agreement and the other Credit
Documents;


(x) it shall hereafter
use best efforts so as not to permit the inclusion in any contract
to which it hereafter becomes a party of any provision that could
or might in any way materially impair or prevent the creation of a
security interest in, or the assignment of, such Grantor’s
rights and interests in any property included within the
definitions of any Intellectual Property acquired under such
contracts;



 

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(xi) it shall take all
steps reasonably necessary to protect the secrecy of all Trade
Secrets, including, without limitation, entering into
confidentiality agreements with employees and labeling and
restricting access to secret information and
documents;


(xii) it shall use
proper statutory notice in connection with its use of any of the
Intellectual Property; and


(xiii) it shall continue
to collect, at its own expense, all amounts due or to become due to
such Grantor in respect of the Intellectual Property or any portion
thereof. In connection with such collections, each Grantor may take
(and, at the Collateral Agent’s reasonable direction, shall
take) such action as such Grantor or the Collateral Agent may deem
reasonably necessary or advisable to enforce collection of such
amounts. Notwithstanding the foregoing, the Collateral Agent shall
have the right at any time, to notify, or require any Grantor to
notify, any obligors with respect to any such amounts of the
existence of the security interest created hereby.



4.8 Commercial Tort
Claims


(a) Representations and
Warranties. Each Grantor hereby represents and warrants, on
the Restatement Date and on each Credit Date, that Schedule 4.8 (as
such schedule may be amended or supplemented from time to time)
sets forth all Commercial Tort Claims of each Grantor in excess of
$250,000; and


(b) Covenants and Agreements. Each
Grantor hereby covenants and agrees that with respect to any
Commercial Tort Claim in excess of $250,000 hereafter arising it
shall deliver to the Collateral Agent a completed Pledge
Supplement, substantially in the form of Exhibit A attached hereto,
together with all Supplements to Schedules thereto, identifying
such new Commercial Tort Claims.




SECTION
5.

ACCESS; RIGHT OF INSPECTION AND
FURTHER ASSURANCES;






ADDITIONAL
GRANTORS.


 



5.1 Access; Right of
Inspection . The Collateral
Agent shall at all times have full and free access during normal
business hours to all the books, correspondence and records of each
Grantor, and the Collateral Agent and its representatives may
examine the same, take extracts therefrom and make photocopies
thereof, and each Grantor agrees to render to the Collateral Agent,
at such Grantor’s cost and expense, such clerical and other
assistance as may be reasonably requested with regard thereto. The
Collateral Agent and its representatives shall at all times also
have the right to enter any premises of each Grantor and inspect
any property of each Grantor where any of the Collateral of such
Grantor granted pursuant to this Agreement is located for the
purpose of inspecting the same, observing its use or otherwise
protecting its interests therein. Unless an Event of Default has
occurred and is continuing, Collateral Agent shall provide the
applicable Grantor with reasonable prior notice prior to exercising
its rights under this Section 5.1.



5.2 Further Assurances
.


(a) Each Grantor
agrees that from time to time, at the expense of such Grantor, that
it shall promptly execute and deliver all further instruments and
documents, and take all further action, that may be necessary or
desirable, or that the Collateral Agent may reasonably request, in
order to create and/or maintain the validity, perfection or
priority of and protect any security interest granted hereby or to
enable the Collateral Agent to exercise and enforce its rights and
remedies hereunder with respect to any Collateral. Without limiting
the generality of the foregoing, each Grantor shall:



 

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(i) file such
financing or continuation statements, or amendments thereto, and
execute and deliver such other agreements, instruments,
endorsements, powers of attorney or notices, as may be necessary or
desirable, or as the Collateral Agent may reasonably request, in
order to perfect and preserve the security interests granted or
purported to be granted hereby;


(ii) take all actions
necessary to ensure the recordation of appropriate evidence of the
liens and security interest granted hereunder in the Intellectual
Property with any intellectual property registry in which said
Intellectual Property is registered or in which an application for
registration is pending including, without limitation, the United
States Patent and Trademark Office, the United States Copyright
Office, the various Secretaries of State, and the foreign
counterparts on any of the foregoing;


(iii) at any reasonable
time, upon request by the Collateral Agent, assemble the Collateral
and allow inspection of the Collateral by the Collateral Agent, or
persons designated by the Collateral Agent; and


(iv) at the Collateral
Agent’s request, appear in and defend any action or
proceeding that may affect such Grantor’s title to or the
Collateral Agent’s security interest in all or any part of
the Collateral.


(b) Each Grantor
hereby authorizes the Collateral Agent to file a Record or Records,
including, without limitation, financing or continuation
statements, and amendments thereto, in any jurisdictions and with
any filing offices as the Collateral Agent may determine, in its
sole discretion, are necessary or advisable to perfect the security
interest granted to the Collateral Agent herein. Such financing
statements may describe the Collateral in the same manner as
described herein or may contain an indication or description of
collateral that describes such property in any other manner as the
Collateral Agent may determine, in its sole discretion, is
necessary, advisable or prudent to ensure the perfection of the
security interest in the Collateral granted to the Collateral Agent
herein, including, without limitation, describing such property as
“all assets” or “all personal property, whether
now owned or hereafter acquired.” Each Grantor shall furnish
to the Collateral Agent from time to time statements and schedules
further identifying and describing the Collateral and such other
reports in connection with the Collateral as the Collateral Agent
may reasonably request, all in reasonable detail.


(c) Each Grantor
hereby authorizes the Collateral Agent to modify this Agreement
after obtaining such Grantor’s approval of or signature to
such modification by amending Schedule 4.7 (as such schedule may be
amended or supplemented from time to time) to include reference to
any right, title or interest in any existing Intellectual Property
or any Intellectual Property acquired or developed by any Grantor
after the execution hereof or to delete any reference to any right,
title or interest in any Intellectual Property in which any Grantor
no longer has or claims any right, title or interest.



5.3 Additional Grantors
. From
time to time subsequent to the date hereof, additional Persons may
become parties hereto as additional Grantors (each, an
“Additional Grantor”), by executing a Counterpart
Agreement. Upon delivery of any such counterpart agreement to the
Collateral Agent, notice of which is hereby waived by Grantors,
each Additional Grantor shall be a Grantor and shall be as fully a
party hereto as if Additional Grantor were an original signatory
hereto. Each Grantor expressly agrees that its obligations arising
hereunder shall not be affected or diminished by the addition or
release of any other Grantor hereunder, nor by any election of
Collateral Agent not to cause any Subsidiary of Holdings to become
an Additional Grantor hereunder. This Agreement shall be fully
effective as to any Grantor that is or becomes a party hereto
regardless of whether any other Person becomes or fails to become
or ceases to be a Grantor hereunder.



 

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SECTION
6.

COLLATERAL AGENT APPOINTED
PROXY ATTORNEY-IN-FACT.







6.1 Power of Attorney
.           Each
Grantor hereby irrevocably appoints the Collateral Agent (such
appointment being coupled with an interest and terminable only upon
the payment in full of the Secured Obligations (other than
contingent indemnification obligations arising under the Credit
Documents for which no claims have been asserted)) as such
Grantor’s attorney-in-fact, with full authority in the place
and stead of such Grantor and in the name of such Grantor, the
Collateral Agent or otherwise, from time to time in the Collateral
Agent’s discretion to take any action and to execute any
instrument that the Collateral Agent may deem reasonably necessary
or advisable to accomplish the purposes of this Agreement,
including, without limitation, the following:


(a) upon the
occurrence and during the continuance of any Event of Default, to
obtain and adjust insurance required to be maintained by such
Grantor or paid to the Collateral Agent pursuant to the Credit
Agreement;


(b) upon the
occurrence and during the continuance of any Event of Default, to
ask for, demand, collect, sue for, recover, compound, receive and
give acquittance and receipts for moneys due and to become due
under or in respect of any of the Collateral;


(c) upon the
occurrence and during the continuance of any Event of Default, to
receive, endorse and collect any drafts or other instruments,
documents and chattel paper in connection with clause (b)
above;


(d) upon the
occurrence and during the continuance of any Event of Default, to
file any claims or take any action or institute any proceedings
that the Collateral Agent may deem necessary or desirable for the
collection of any of the Collateral or otherwise to enforce the
rights of the Collateral Agent with respect to any of the
Collateral;


(e) to prepare and
file any UCC financing statements against such Grantor as
debtor;


(f) to prepare, sign,
and file for recordation in any intellectual property registry,
appropriate evidence of the lien and security interest granted
herein in the Intellectual Property in the name of such Grantor as
debtor;


(g) to take or cause
to be taken all actions necessary to perform or comply or cause
performance or compliance with the terms of this Agreement,
including, without limitation, access to pay or discharge taxes or
Liens (other than Permitted Liens) levied or placed upon or
threatened against the Collateral, the legality or validity thereof
and the amounts necessary to discharge the same to be determined by
the Collateral Agent in its sole discretion, any such payments made
by the Collateral Agent to become obligations of such Grantor to
the Collateral Agent, due and payable immediately without demand;
and



 

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(h) generally to sell,
transfer, pledge, make any agreement with respect to or otherwise
deal with any of the Collateral as fully and completely as though
the Collateral Agent were the absolute owner thereof for all
purposes, and to do, at the Collateral Agent’s option and
such Grantor’s expense, at any time or from time to time, all
acts and things that the Collateral Agent deems reasonably
necessary to protect, preserve or realize upon the Collateral and
the Collateral Agent’s security interest therein in order to
effect the intent of this Agreement, all as fully and effectively
as such Grantor might do.



6.2 Voting
Rights; Proxy


(a) EACH GRANTOR HEREBY
IRREVOCABLY CONSTITUTES AND APPOINTS COLLATERAL AGENT AS ITS PROXY
AND ATTORNEY-IN-FACT FOR SUCH GRANTOR WITH RESPECT TO THE PLEDGED
EQUITY INTERESTS WITH THE RIGHT TO, DURING THE CONTINUANCE OF AN
EVENT OF DEFAULT, TAKE ANY OF THE FOLLOWING ACTIONS
(I) TRANSFER AND REGISTER IN ITS NAME OR IN THE NAME OF ITS
NOMINEE THE WHOLE OR ANY PART OF THE PLEDGED EQUITY INTERESTS,
(II) VOTE THE PLEDGED EQUITY INTERESTS, WITH FULL POWER OF
SUBSTITUTION TO DO SO, (III) RECEIVE AND COLLECT ANY DIVIDEND
OR OTHER PAYMENT OR DISTRIBUTION IN RESPECT OF OR IN EXCHANGE FOR
THE PLEDGED COLLATERAL OR ANY PORTION THEREOF, TO GIVE FULL
DISCHARGE FOR THE SAME AND TO INDORSE ANY INSTRUMENT MADE PAYABLE
TO PLEDGOR FOR SAME, (IV) EXERCISE ALL OTHER RIGHTS, POWERS,
PRIVILEGES AND REMEDIES TO WHICH A HOLDER OF THE PLEDGED EQUITY
INTERESTS WOULD BE ENTITLED (INCLUDING, WITH RESPECT TO THE PLEDGED
EQUITY INTERESTS, GIVING OR WITHHOLDING WRITTEN CONSENTS OF
MEMBERS, CALLING SPECIAL MEETINGS OF MEMBERS AND VOTING AT SUCH
MEETINGS), AND (V) TAKE ANY ACTION AND TO EXECUTE ANY
INSTRUMENT WHICH COLLATERAL AGENT MAY DEEM NECESSARY OR ADVISABLE
TO ACCOMPLISH THE PURPOSES OF THIS AGREEMENT. THE APPOINTMENT OF
COLLATERAL AGENT AS PROXY AND ATTORNEY-IN-FACT IS COUPLED WITH AN
INTEREST AND SHALL BE VALID AND IRREVOCABLE UNTIL (X) THE
SECURED OBLIGATIONS HAVE BEEN INDEFEASIBLY PAID IN FULL IN
ACCORDANCE WITH THE PROVISIONS OF THE CREDIT AGREEMENT and THE
OTHER CREDIT DOCUMENTS AND, (Y) ALL THE SECURED OBLIGATIONS
HAVE BEEN PAID IN FULL AND THE COMMITMENTS UNDER THE CREDIT
AGREEMENT HAVE EXPIRED OR BEEN TERMINATED (THE OCCURRENCE OF EACH
OF THE FOREGOING, THE “TERMINATION DATE”); IT
BEING UNDERSTOOD THAT SUCH SECURED OBLIGATIONS AND COMMITMENTS WILL
CONTINUE TO BE EFFECTIVE OR AUTOMATICALLY REINSTATED, AS THE CASE
MAY BE, IF AT ANY TIME PAYMENT, IN WHOLE OR IN PART, OF ANY OF THE
SECURED OBLIGATIONS IS RESCINDED OR MUST OTHERWISE BE RESTORED OR
RETURNED BY THE COLLATERAL AGENT, ADMINISTRATIVE AGENT OR ANY
LENDER FOR ANY REASON, INCLUDING AS A PREFERENCE, FRAUDULENT
CONVEYANCE, OR OTHERWISE UNDER ANY BANKRUPTCY, INSOLVENCY, OR
SIMILAR LAW, ALL AS THOUGH SUCH PAYMENT HAD NOT BEEN MADE; IT BEING
FURTHER UNDERSTOOD THAT IN THE EVENT PAYMENT OF ALL OR ANY PART OF
THE SECURED OBLIGATIONS IS RESCINDED OR MUST BE RESTORED OR
RETURNED, ALL REASONABLE OUT-OF-POCKET COSTS AND EXPENSES
(INCLUDING, WITHOUT LIMITATION, REASONABLE ATTORNEYS' FEES AND
DISBURSEMENTS) INCURRED BY THE COLLATERAL AGENT IN DEFENDING AND
ENFORCING SUCH REINSTATEMENT SHALL BE DEEMED TO BE INCLUDED AS A
PART OF THE SECURED OBLIGATIONS). SUCH APPOINTMENT OF COLLATERAL
AGENT AS PROXY AND ATTORNEY-IN-FACT SHALL BE VALID AND IRREVOCABLE
AS PROVIDED HEREIN NOTWITHSTANDING ANY LIMITATIONS TO THE CONTRARY
SET FORTH IN THE ORGANIZATIONAL DOCUMENTS OF ANY GRANTOR OR ANY
ISSUER. In order to further affect the foregoing transfer of rights
in favor of Collateral Agent, Collateral Agent shall have the
right, upon the occurrence and during the continuance of an Event
of Default, to present to any Grantor or any Issuer an Irrevocable
Proxy and/or Registration Page.



 

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(b) Upon the
occurrence and during the continuation of an Event of Default,
Collateral Agent (personally or through an agent) is hereby
authorized and empowered to take any or all of the actions set
forth in Section 4.4.1(c)(i)(3)(A) and exercise any other rights or
remedies Collateral Agent may have under the UCC or other
applicable law.


(c) All prior proxies
given by any Grantor with respect to any of the Investment Related
Property (other than to Collateral Agent), are hereby revoked, and
no subsequent proxies (other than to Collateral Agent) will be
given with respect to any of the Investment Related Property,
unless the Collateral Agent otherwise subsequently agrees in
writing. The Collateral Agent, as proxy, will be empowered and may
exercise the irrevocable proxy to vote the Investment Related
Property at any and all times during the existence of an Event of
Default, including, but not limited to, at any meeting of
shareholders, partners, or members, as the case may be, however
called, and at any adjournment thereof, or in any action by written
consent, and may waive any notice otherwise required in connection
therewith. To the fullest extent permitted by applicable law, the
Collateral Agent shall have no agency, fiduciary, or other implied
duties to any Grantor, any Credit Party, or any other Person when
acting in its capacity as such proxy or attorney-in-fact. Each
Grantor hereby waives and releases to the fullest extent permitted
by applicable law any claims that it may otherwise have against the
Collateral Agent with respect to any breach or alleged breach of
any such agency, fiduciary, or other duty.



6.3 No Duty on the Part of
Collateral Agent or Secured Parties . The powers
conferred on the Collateral Agent hereunder are solely to protect
the interests of the Secured Parties in the Collateral and shall
not impose any duty upon the Collateral Agent or any Secured Party
to exercise any such powers. The Collateral Agent and the Secured
Parties shall be accountable only for amounts that they actually
receive as a result of the exercise of such powers, and neither
they nor any of their officers, directors, employees or agents
shall be responsible to any Grantor for any act or failure to act
hereunder, except for their own gross negligence or willful
misconduct.




SECTION
7.

REMEDIES.







7.1 Generally.


(a) If any Event of
Default shall have occurred and be continuing, the Collateral Agent
may exercise in respect of the Collateral, in addition to all other
rights and remedies provided for herein or otherwise available to
it at law or in equity, all the rights and remedies of the
Collateral Agent on default under the UCC (whether or not the UCC
applies to the affected Collateral) to collect, enforce or satisfy
any Secured Obligations then owing, whether by acceleration or
otherwise, and also may pursue any of the following separately,
successively or simultaneously:



 

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(i) require any
Grantor to, and each Grantor hereby agrees that it shall at its
expense and promptly upon request of the Collateral Agent
forthwith, assemble all or part of the Collateral as directed by
the Collateral Agent and make it available to the Collateral Agent
at a place to be designated by the Collateral Agent that is
reasonably convenient to both parties;


(ii) enter onto the
property where any Collateral is located and take possession
thereof with or without judicial process;


(iii) prior to the
disposition of the Collateral, store, process, repair or
recondition the Collateral or otherwise prepare the Collateral for
disposition in any manner to the extent the Collateral Agent deems
appropriate; and


(iv) without notice
except as specified below or under the UCC, sell, assign, lease,
license (on an exclusive or nonexclusive basis) or otherwise
dispose of the Collateral or any part thereof in one or more
parcels at public or private sale, at any of the Collateral
Agent’s offices or elsewhere, for cash, on credit or for
future delivery, at such time or times and at such price or prices
and upon such other terms as the Collateral Agent may deem
commercially reasonable.


(b) The Collateral
Agent or any Secured Party may be the purchaser of any or all of
the Collateral at any public or private (to the extent to the
portion of the Collateral being privately sold is of a kind that is
customarily sold on a recognized market or the subject of widely
distributed standard price quotations) sale in accordance with the
UCC and the Collateral Agent, as collateral agent for and
representative of the Secured Parties, shall be entitled, for the
purpose of bidding and making settlement or payment of the purchase
price for all or any portion of the Collateral sold at any such
sale made in accordance with the UCC, to use and apply any of the
Secured Obligations as a credit on account of the purchase price
for any Collateral payable by the Collateral Agent at such sale.
Each 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
applicable law) all rights of redemption, stay and/or appraisal
which it now has or may at any time in the future have under any
rule of law or statute now existing or hereafter enacted. Each
Grantor agrees that, to the extent notice of sale shall be required
by law, at least ten (10) days notice to such Grantor of the time
and place of any public sale or the time after which any private
sale is to be made shall constitute reasonable notification. The
Collateral Agent shall not be obligated to make any sale of
Collateral regardless of notice of sale having been given. The
Collateral Agent may adjourn any public or private sale from time
to time by announcement at the time and place fixed therefor, and
such sale may, without further notice, be made at the time and
place to which it was so adjourned. Each Grantor agrees that it
would not be commercially unreasonable for the Collateral Agent to
dispose of the Collateral or any portion thereof by using Internet
sites that provide for the auction of assets of the types included
in the Collateral or that have the reasonable capability of doing
so, or that match buyers and sellers of assets. Each Grantor hereby
waives any claims against the Collateral Agent arising by reason of
the fact that the price at which any Collateral may have been sold
at such a private sale was less than the price which might have
been obtained at a public sale, even if the Collateral Agent
accepts the first offer received and does not offer such Collateral
to more than one offeree. If the proceeds of any sale or other
disposition of the Collateral are insufficient to pay all the
Secured Obligations, Grantors shall be liable for the deficiency
and the fees of any attorneys employed by the Collateral Agent to
collect such deficiency. Each Grantor further agrees that a breach
of any of the covenants contained in this Section will cause
irreparable injury to the Collateral Agent, that the Collateral
Agent has no adequate remedy at law in respect of such breach and,
as a consequence, that each and every covenant contained in this
Section shall be specifically enforceable against such Grantor, and
such Grantor hereby waives and agrees not to assert any defenses
against an action for specific performance of such covenants except
for a defense that no default has occurred giving rise to the
Secured Obligations becoming due and payable prior to their stated
maturities. Nothing in this Section shall in any way alter the
rights of the Collateral Agent hereunder.



 

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(c) The Collateral
Agent may sell the Collateral without giving any warranties as to
the Collateral. The Collateral Agent may specifically disclaim or
modify any warranties of title or the like. This procedure will not
be considered to adversely affect the commercial reasonableness of
any sale of the Collateral.


(d)  The
Collateral Agent shall have no obligation to marshal any of the
Collateral.



7.2 Application of Proceeds
.
Except as expressly provided elsewhere in this Agreement, all
proceeds received by the Collateral Agent in respect of any sale,
any collection from, or other realization upon all or any part of
the Collateral shall be applied in full or in part by the
Collateral Agent against the Secured Obligations as set forth in
Section 2.15(h) of the Credit Agreement.



7.3 Sales on Credit
. If
Collateral Agent sells any of the Collateral upon credit, Grantor
will be credited only with payments actually made by purchaser and
received by Collateral Agent and applied to indebtedness of the
purchaser. In the event the purchaser fails to pay for the
Collateral, Collateral Agent may resell the Collateral and Grantor
shall be credited with proceeds of the sale.



7.4 Deposit Accounts.


If any
Event of Default shall have occurred and be continuing, the
Collateral Agent may apply the balance from any Deposit Account or
instruct the bank at which any Deposit Account is maintained to pay
the balance of any Deposit Account to or for the benefit of the
Collateral Agent.



7.5 Investment Related
Property.


(a) Each Grantor
recognizes that, by reason of certain prohibitions contained in the
Securities Act and applicable state securities laws, the Collateral
Agent may be compelled, with respect to any sale of all or any part
of the Investment Related Property conducted without prior
registration or qualification of such Investment Related Property
under the Securities Act and/or such state securities laws, to
limit purchasers to those who will agree, among other things, to
acquire the Investment Related Property for their own account, for
investment and not with a view to the distribution or resale
thereof. Each Grantor acknowledges that any such private sale may
be at prices and on terms less favorable than those obtainable
through a public sale without such restrictions (including a public
offering made pursuant to a registration statement under the
Securities Act) and, notwithstanding such circumstances, each
Grantor agrees that any such private sale shall be deemed to have
been made in a commercially reasonable manner and that the
Collateral Agent shall have no obligation to engage in public sales
and no obligation to delay the sale of any Investment Related
Property for the period of time necessary to permit the issuer
thereof to register it for a form of public sale requiring
registration under the Securities Act or under applicable state
securities laws, even if such issuer would, or should, agree to so
register it. If the Collateral Agent determines to exercise its
right to sell any or all of the Investment Related Property, upon
written request, each Grantor shall and shall cause each Issuer of
any Pledged Equity Interest to be sold hereunder from time to time
to furnish to the Collateral Agent all such information as the
Collateral Agent may request in order to determine the number and
nature of interest, shares or other instruments included in the
Investment Related Property which may be sold by the Collateral
Agent in exempt transactions under the Securities Act and the rules
and regulations of the Securities and Exchange Commission
thereunder, as the same are from time to time in
effect.



 

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(b) Any transfer to
Collateral Agent or its nominee, or registration in the name of
Collateral Agent or its nominee, of the whole or any part of the
Investment Related Property, whether by the delivery of a
Registration Page to any issuer of Investment Related Property or
otherwise, shall, absent the election of Collateral Agent to the
contrary, be made solely for purposes of effectuating voting or
other consensual rights with respect to the Investment Related
Property in accordance with the terms hereof, and (absent the
Collateral Agent’s election) is not intended to effectuate
any transfer whatsoever of ownership of any of the Investment
Related Property. Notwithstanding any transfer to the Collateral
Agent or its nominee, or any registration in the name of the
Collateral Agent or its nominee, or any delivery or any
modification of a Registration Page, or any exercise of an
Irrevocable Proxy, the Collateral Agent shall not be deemed the
owner of, or assume any obligations of the owner or holder of, the
Investment Related Property unless and until the Collateral Agent
subsequently expressly accepts such obligations in a duly
authorized and executed writing, or otherwise becomes the owner
thereof under applicable law (including, without limitation,
through a sale as described herein). In no event shall the
acceptance of this Agreement by the Collateral Agent, or the
exercise by the Collateral Agent of any rights hereunder or
assigned hereby, constitute an assumption of any liability or
obligation whatsoever of any Grantor, any Issuer, or any other
Person to, under, or in connection with any Organizational Document
thereof or any related agreements, documents, instruments, or
otherwise.


(c) Each Grantor
agrees that it hereby waives any and all rights of subrogation,
reimbursement, exoneration, contribution, and similar rights it may
have against any Issuer of Investment Related Property, upon the
sale or sales or dispositions of any portion or all of the
Collateral by Collateral Agent.


(d) Each Grantor
further agrees that a breach of any of the covenants contained in
Section 4.4 and this Section 7.5 will cause irreparable injury to
Collateral Agent, that Collateral Agent shall have no adequate
remedy at law in respect of such breach and, as a consequence,
agrees that each and every covenant contained in Section 4.4 and
this Section 7.5 shall be specifically enforceable against such
Grantor, and each Grantor hereby waives and agrees not to assert
any defenses against an action for specific performance of such
covenants except for a defense that the Secured Obligations are not
then due and payable in accordance with the agreements and
instruments governing and evidencing such obligations.



7.6 Intellectual Property.


(a) Anything contained
herein to the contrary notwithstanding, upon the occurrence and
during the continuation of an Event of Default:


(i) the Collateral
Agent shall have the right (but not the obligation) to bring suit
or otherwise commence any action or proceeding in the name of any
Grantor, the Collateral Agent or otherwise, in the Collateral
Agent’s sole discretion, to enforce any Intellectual
Property, in which event such Grantor shall, at the request of the
Collateral Agent, do any and all lawful acts and execute any and
all documents required by the Collateral Agent in aid of such
enforcement and such Grantor shall promptly, upon demand, reimburse
and indemnify the Collateral Agent as provided in Section 10 hereof
in connection with the exercise of its rights under this Section,
and, to the extent that the Collateral Agent shall elect not to
bring suit to enforce any Intellectual Property as provided in this
Section, each Grantor agrees to use all reasonable measures,
whether by action, suit, proceeding or otherwise, to prevent the
infringement or other violation of any of such Grantor’s
rights in the Intellectual Property by others and for that purpose
agrees to diligently maintain any action, suit or proceeding
against any Person so infringing as shall be necessary to prevent
such infringement or violation;



 

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(ii) upon written
demand from the Collateral Agent, each Grantor shall grant, assign,
convey or otherwise transfer to the Collateral Agent or such
Collateral Agent’s designee all of such Grantor’s
right, title and interest in and to the Intellectual Property and
shall execute and deliver to the Collateral Agent such documents as
are necessary or appropriate to carry out the intent and purposes
of this Agreement;


(iii) each Grantor
agrees that such an assignment and/or recording shall be applied to
reduce the Secured Obligations outstanding only to the extent that
the Collateral Agent (or any Secured Party) receives cash proceeds
in respect of the sale of, or other realization upon, the
Intellectual Property;


(iv) within five (5)
Business Days after written notice from the Collateral Agent, each
Grantor shall make available to the Collateral Agent, to the extent
within such Grantor’s power and authority, such personnel in
such Grantor’s employ on the date of such Event of Default as
the Collateral Agent may reasonably designate, by name, title or
job responsibility, to permit such Grantor to continue, directly or
indirectly, to produce, advertise and sell the products and
services sold or delivered by such Grantor under or in connection
with the Trademarks, Trademark Licenses, such persons to be
available to perform their prior functions on the Collateral
Agent’s behalf and to be compensated by the Collateral Agent
at such Grantor’s expense on a per diem, pro-rata basis
consistent with the salary and benefit structure applicable to each
as of the date of such Event of Default; and


(v) the Collateral
Agent shall have the right to notify, or require each Grantor to
notify, any obligors with respect to amounts due or to become due
to such Grantor in respect of the Intellectual Property, of the
existence of the security interest created herein, to direct such
obligors to make payment of all such amounts directly to the
Collateral Agent, and, upon such notification and at the expense of
such Grantor, to enforce collection of any such amounts and to
adjust, settle or compromise the amount or payment thereof, in the
same manner and to the same extent as such Grantor might have
done;




(1)

all amounts and
proceeds (including checks and other instruments) received by
Grantor in respect of amounts due to such Grantor in respect of the
Collateral or any portion thereof shall be received in trust for
the benefit of the Collateral Agent hereunder, shall be segregated
from other funds of such Grantor and shall be forthwith paid over
or delivered to the Collateral Agent in the same form as so
received (with any necessary endorsement) to be held as cash
Collateral and applied as provided by Section 7.7 hereof;
and







 

37







 








(2)

Grantor shall not
adjust, settle or compromise the amount or payment of any such
amount or release wholly or partly any obligor with respect thereto
or allow any credit or discount thereon.






(b) If (i) an Event of
Default shall have occurred and, by reason of cure, waiver,
modification, amendment or otherwise, no longer be continuing, (ii)
no other Event of Default shall have occurred and be continuing,
(iii) an assignment or other transfer to the Collateral Agent of
any rights, title and interests in and to the Intellectual Property
shall have been previously made and shall have become absolute and
effective, and (iv) the Secured Obligations shall not have become
immediately due and payable, upon the written request of any
Grantor, the Collateral Agent shall promptly execute and deliver to
such Grantor, at such Grantor’s sole cost and expense, such
assignments or other transfer as may be necessary to reassign to
such Grantor any such rights, title and interests as may have been
assigned to the Collateral Agent as aforesaid, subject to any
disposition thereof that may have been made by the Collateral
Agent; provided, after giving effect to such reassignment, the
Collateral Agent’s security interest granted pursuant hereto,
as well as all other rights and remedies of the Collateral Agent
granted hereunder, shall continue to be in full force and effect;
and provided further, the rights, title and interests so reassigned
shall be free and clear of any other Liens granted by or on behalf
of the Collateral Agent and the Secured Parties.


(c) Solely for the
purpose of enabling the Collateral Agent to exercise rights and
remedies under this Section 7 and 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, to
the extent it has the right to do so, an irrevocable, nonexclusive
license (exercisable without payment of royalty or other
compensation to such Grantor), subject, in the case of Trademarks,
to sufficient rights to quality control and inspection in favor of
such Grantor to avoid the risk of invalidation of said Trademarks,
to use, operate under, license, or sublicense any Intellectual
Property now owned or hereafter acquired by such Grantor, and
wherever the same may be located.



7.7 Cash Proceeds
. In
addition to the rights of the Collateral Agent specified in
Section 4.3 with respect to payments of Receivables, all
proceeds of any Collateral received by any Grantor consisting of
cash, checks and other non-cash items (collectively,
“Cash Proceeds”)
shall be held by such Grantor in trust for the Collateral Agent,
segregated from other funds of such Grantor, and shall, forthwith
upon receipt by such Grantor, unless otherwise provided pursuant to
Section 4.4(a)(ii), be turned over to the Collateral Agent in the
exact form received by such Grantor (duly indorsed by such Grantor
to the Collateral Agent, if required) and held by the Collateral
Agent in the Collateral Account. Any Cash Proceeds received by the
Collateral Agent (whether from a Grantor or otherwise): (i) if no
Event of Default shall have occurred and be continuing, shall be
held by the Collateral Agent for the ratable benefit of the Secured
Parties, as collateral security for the Secured Obligations
(whether matured or unmatured) and (ii) if an Event of Default
shall have occurred and be continuing, may, in the sole discretion
of the Collateral Agent, (A) be held by the Collateral Agent for
the ratable benefit of the Secured Parties, as collateral security
for the Secured Obligations (whether matured or unmatured) and/or
(B) then or at any time thereafter may be applied by the Collateral
Agent against the Secured Obligations then due and
owing.



 

38







 








SECTION
8.

COLLATERAL AGENT.






The
Collateral Agent has been appointed to act as Collateral Agent
hereunder by Lenders and, by their acceptance of the benefits
hereof, the other Secured Parties. The Collateral Agent shall be
obligated, and shall have the right hereunder, to make demands, to
give notices, to exercise or refrain from exercising any rights,
and to take or refrain from taking any action (including, without
limitation, the release or substitution of Collateral), solely in
accordance with this Agreement and the Credit Agreement; provided,
the Collateral Agent shall, after payment in full of all
Obligations under the Credit Agreement and the other Credit
Documents, exercise, or refrain from exercising, any remedies
provided for herein in accordance with the instructions of the
holders of a majority of the aggregate notional amount (or, with
respect to any Interest Rate Agreement that has been terminated in
accordance with its terms, the amount then due and payable
(exclusive of expenses and similar payments but including any early
termination payments then due) under such Interest Rate Agreement)
under all Interest Rate Agreements. In furtherance of the foregoing
provisions of this Section, each Secured Party, by its acceptance
of the benefits hereof, agrees that it shall have no right
individually to realize upon any of the Collateral hereunder, it
being understood and agreed by such Secured Party that all rights
and remedies hereunder may be exercised solely by the Collateral
Agent for the benefit of Secured Parties in accordance with the
terms of this Section. Collateral Agent may resign at any time by
giving thirty (30) days’ prior written notice thereof to
Lenders and the Grantors, and Collateral Agent may be removed at
any time with or without cause by an instrument or concurrent
instruments in writing delivered to the Grantors and Collateral
Agent signed by the Requisite Lenders. Upon any such notice of
resignation or any such removal, Requisite Lenders shall have the
right, upon five (5) Business Days’ notice to the
Administrative Agent, to appoint a successor Collateral Agent. Upon
the acceptance of any appointment as Collateral Agent hereunder by
a successor Collateral Agent, that successor Collateral Agent shall
thereupon succeed to and become vested with all the rights, powers,
privileges and duties of the retiring or removed Collateral Agent
under this Agreement, and the retiring or removed Collateral Agent
under this Agreement shall promptly (i) transfer to such
successor Collateral Agent all sums, Securities and other items of
Collateral held hereunder, together with all records and other
documents necessary or appropriate in connection with the
performance of the duties of the successor Collateral Agent under
this Agreement, and (ii) execute and deliver to such successor
Collateral Agent or otherwise authorize the filing of such
amendments to financing statements, and take such other actions, as
may be necessary or appropriate in connection with the assignment
to such successor Collateral Agent of the security interests
created hereunder, whereupon such retiring or removed Collateral
Agent shall be discharged from its duties and obligations under
this Agreement. After any retiring or removed Collateral
Agent’s resignation or removal hereunder as the Collateral
Agent, the provisions of this Agreement shall inure to its benefit
as to any actions taken or omitted to be taken by it under this
Agreement while it was the Collateral Agent hereunder.




SECTION
9.

CONTINUING SECURITY INTEREST;
TRANSFER OF LOANS.






This
Agreement shall create a continuing security interest in the
Collateral and shall remain in full force and effect until the
payment in full of all Secured Obligations, the cancellation or
termination of the Commitments, be binding upon each Grantor, its
successors and assigns, and inure, together with the rights and
remedies of the Collateral Agent hereunder, to the benefit of the
Collateral Agent and its successors, transferees and assigns.
Without limiting the generality of the foregoing, but subject to
the terms of the Credit Agreement, any Lender may assign or
otherwise transfer any Loans held by it to any other Person, and
such other Person shall thereupon become vested with all the
benefits in respect thereof granted to Lenders herein or otherwise.
Upon the payment in full of all Secured Obligations, the
cancellation or termination of the Commitments, the security
interest granted hereby shall automatically terminate hereunder and
of record and all rights to the Collateral shall revert to
Grantors. Upon any such termination the Collateral Agent shall, at
Grantors’ expense, execute and deliver to Grantors or
otherwise authorize the filing of such documents as Grantors shall
reasonably request, including financing statement amendments to
evidence such termination. Upon any disposition of property
permitted by the Credit Agreement, the Liens granted herein shall
be deemed to be automatically released and such property shall
automatically revert to the applicable Grantor with no further
action on the part of any Person. The Collateral Agent shall, at
Grantor’s expense, execute and deliver or otherwise authorize
the filing of such documents as Grantors shall reasonably request,
in form and substance reasonably satisfactory to the Collateral
Agent, including financing statement amendments to evidence such
release.



 

39







 








SECTION
10.

STANDARD OF CARE; COLLATERAL
AGENT MAY PERFORM.






The
powers conferred on the Collateral Agent hereunder are solely to
protect its interest in the Collateral and shall not impose any
duty upon it to exercise any such powers. Except for the exercise
of reasonable care in the custody of any Collateral in its
possession and the accounting for moneys actually received by it
hereunder, the Collateral Agent shall have no duty as to any
Collateral or as to the taking of any necessary steps to preserve
rights against prior parties or any other rights pertaining to any
Collateral. The Collateral Agent shall be deemed to have exercised
reasonable care in the custody and preservation of Collateral in
its possession if such Collateral is accorded treatment
substantially equal to that which the Collateral Agent accords its
own property. Neither the Collateral Agent nor any of its
directors, officers, employees or agents shall be liable for
failure to demand, collect or realize upon all or any part of the
Collateral or for any delay in doing so or shall be under any
obligation to sell or otherwise dispose of any Collateral upon the
request of any Grantor or otherwise. If any Grantor fails to
perform any agreement contained herein, the Collateral Agent may
itself perform, or cause performance of, such agreement, and the
expenses of the Collateral Agent incurred in connection therewith
shall be payable by each Grantor under Section 10.2 of the Credit
Agreement.




SECTION
11.

MISCELLANEOUS.






Any
notice required or permitted to be given under this Agreement shall
be given in accordance with Section 10.1 of the Credit Agreement.
No failure or delay on the part of the Collateral Agent in the
exercise of any power, right or privilege hereunder or under any
other Credit Document shall impair such power, right or privilege
or be construed to be a waiver of any default or acquiescence
therein, nor shall any single or partial exercise of any such
power, right or privilege preclude other or further exercise
thereof or of any other power, right or privilege. All rights and
remedies existing under this Agreement and the other Credit
Documents are cumulative to, and not exclusive of, any rights or
remedies otherwise available. In case any provision in or
obligation under this Agreement shall be invalid, illegal or
unenforceable in any jurisdiction, the validity, legality and
enforceability of the remaining provisions or obligations, or of
such provision or obligation in any other jurisdiction, shall not
in any way be affected or impaired thereby. All covenants hereunder
shall be given independent effect so that if a particular action or
condition is not permitted by any of such covenants, the fact that
it would be permitted by an exception to, or would otherwise be
within the limitations of, another covenant shall not avoid the
occurrence of a Default or an Event of Default if such action is
taken or condition exists. This Agreement shall be binding upon and
inure to the benefit of the Collateral Agent and Grantors and their
respective successors and assigns. No Grantor shall, without the
prior written consent of the Collateral Agent given in accordance
with the Credit Agreement, assign any right, duty or obligation
hereunder. This Agreement and the other Credit Documents embody the
entire agreement and understanding between Grantors and the
Collateral Agent and supersede all prior agreements and
understandings between such parties relating to the subject matter
hereof and thereof. Accordingly, the Credit Documents may not be
contradicted by evidence of prior, contemporaneous or subsequent
oral agreements of the parties. There are no unwritten oral
agreements between the parties. This Agreement may be executed in
one or more counterparts and by different parties hereto in
separate counterparts, each of which when so executed and delivered
shall be deemed an original, but all such counterparts together
shall constitute but one and the same instrument; signature pages
may be detached from multiple separate counterparts and attached to
a single counterpart so that all signature pages are physically
attached to the same document.



 

40







 






This
Agreement amends and restates the Prior Security Agreement. 
Each Grantor party to the Prior Security Agreement hereby reaffirms
the liens and security interests granted pursuant to the terms of
the Prior Security Agreement and its obligations thereunder, and
each New Grantor hereby agrees to be fully bound by the Prior
Security Agreement as if it had been party to and executed the
Prior Security Agreement. Each Grantor confirms that the security
interests granted pursuant to the terms of the Prior Security
Agreement continue to secure the Secured Obligations and remain in
full force and effect except as expressly modified hereby, and each
Grantor agrees that the liens securing the Collateral are perfected
first priority liens. No novation is intended or
implied.


 


THIS
AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER
SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD
TO ITS CONFLICTS OF LAW PROVISIONS (OTHER THAN SECTION 5-1401 AND
SECTION 5-1402 OF THE NEW YORK GENERAL OBLIGATION
LAWS).


[Signature Pages Follow]


 


 




 

41








 






IN
WITNESS WHEREOF, each Grantor and the Collateral Agent have caused
this Agreement to be duly executed and delivered by their
respective officers thereunto duly authorized as of the date first
written above.


MERIDIAN
WASTE SOLUTIONS, INC.


 



By:                  

/s/ Jeffrey S.
Cosman








Name:
Jeffrey S. Cosman


Title:
Chief Executive Officer


 


HERE
TO SERVE – MISSOURI WASTE DIVISION, LLC


 



By:                  

/s/ Jeffrey S.
Cosman








Name:
Jeffrey S. Cosman


Title:
Manager


 


HERE
TO SERVE – GEORGIA WASTE DIVISION, LLC


 



By:                  

/s/ Jeffrey S.
Cosman









Name:
Jeffrey S. Cosman


Title:
Manager


 


MERIDIAN
WASTE OPERATIONS, INC.


 



By:                  

/s/ Jeffrey S.
Cosman








Name:
Jeffrey S. Cosman


Title:
Chief Executive Officer


 


MERIDIAN
LAND COMPANY, LLC


 



By:                  

/s/ Jeffrey S.
Cosman








Name:
Jeffrey S. Cosman


Title:
Manager


 


CHRISTIAN
DISPOSAL LLC


 



By:                  

/s/ Jeffrey S.
Cosman








Name:
Jeffrey S. Cosman


Title:
Manager


 


FWCD,
LLC


 



By:                  

/s/ Jeffrey S.
Cosman









Name:
Jeffrey S. Cosman


Title:
Manager


 



 

42







 






THE
CFS GROUP, LLC


 



By:                  

/s/ Jeffrey S.
Cosman








Name:
Jeffrey S. Cosman


Title:
Manager


 


THE
CFS GROUP DISPOSAL & RECYCLING SERVICES, LLC


 



By:                  

/s/ Jeffrey S.
Cosman








Name:
Jeffrey S. Cosman


Title:
Manager


 


RWG5,
LLC


 



By:                  

/s/ Jeffrey S.
Cosman









Name:
Jeffrey S. Cosman


Title:
Manager


 


 


 




 

43








 






GOLDMAN
SACHS SPECIALTY LENDING GROUP, L.P.,


as the
Collateral Agent


 



By:                  

/s/ Stephen W.
Hipp








Name:
Stephen W. Hipp


Title:
Senior Vice President


 


 




 

44