kl01002_ex10-12.htm


    
      

    

     

    Exhibit
10.12

    
 

    SECURITY
      AGREEMENT

     

    THIS
      SECURITY AGREEMENT,  dated
      as of December 28,  2007 (this “Agreement”), is entered into
      by Tribeca Lending Corp., a New York corporation (the “Borrower”), and each of the
      entities listed on the signature pages hereof as loan parties or that becomes
      a
      party hereto pursuant to Section 7.10 in favor of THE
      HUNTINGTON NATIONAL BANK (“Lender”), successor by merger
      to Sky Bank.

     

    W
      i t n e s s e t h:

     

    WHEREAS,
      Borrower and Lender have entered into that certain Master Credit and Security
      Agreement dated as of February 28, 2006 (as amended, restated, modified or
      supplemented from time to time, the “Master
      Credit
      Agreement”);
      and

     

    WHEREAS,
      Borrower and Lender have entered into that certain Warehousing Credit and
      Security Agreement dated as of October 18, 2005 (as amended, restated, modified
      or supplemented from time to time, the “Flow
      Credit
      Agreement”);
      and

     

     WHEREAS,
      as of even date herewith, the
      Borrower, each of the entities listed on the signature pages thereto, and Lender
      are executing and delivering that certain Forbearance Agreement and Amendment to Credit
      Agreements
(as amended, restated, modified or supplemented from time to time, the “Forbearance
      Agreement”, and together
      with the the Master Credit Agreement, the Flow Credit Agreement, the
“Credit
      Documents”);
      and

     

    WHEREAS,
      pursuant to the respective Credit Documents, Lender has agreed subject to
      certain conditions precedent, to make loans and other financial accommodations
      to Borrower from time to time; and

     

    WHEREAS,
      Lender has required as a condition, among others, of extending credit to
      Borrower or of renewing, extending, or forbearing from demanding immediate
      payment of extensions of credit to Borrower under the Credit Documents, that
      Borrower and each Loan Party enter into this Agreement; and

     

    NOW,
      THEREFORE, in consideration of the promises, and for other good and valuable
      consideration, the receipt and sufficiency of which are hereby acknowledged,
      Borrower and each Loan Party hereby agrees with Lender as follows:

     

    ARTICLE
      I    Defined
      Terms

     

    Section
      1.1 Definitions

     

    (a) Terms
      used herein that are defined in the UCC have the meanings given to them in
      the
      UCC, including the following terms (which are capitalized herein):

     

    “Account
      Debtor”, “Accounts”, “Chattel
      Paper”, “Commercial Tort Claim”,
“Commodity
      Account”,
“Commodity
      Intermediary”, “Deposit
      Account”, “Documents”, “Entitlement
      Holder”, “Entitlement Order”, “Equipment”,
“Financial
      Asset”, “General Intangibles”, “Instruments”,

     

     

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

     

     “Inventory”,
“Investment
      Property”, “Letter-of-Credit
      Right”,
“Proceeds”, “Securities
      Account”, “Securities Intermediary”,
“Security,
“Security
      Entitlement”.

    


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

     

    “Additional
      Pledged
      Collateral” means all shares of, partnership interests in (whether
      limited or general), and limited liability company interests in, all securities
      convertible into, and warrants, options and other rights to purchase or
      otherwise acquire, stock of or interests in, either (i) any Person that,
      after the date of this Agreement, as a result of any occurrence, becomes a
      direct Subsidiary of any Loan Party or (ii) any issuer of Pledged Stock,
      any Partnership or any LLC that is acquired by any Loan Party after the date
      hereof; all certificates or other instruments representing any of the foregoing;
      all Security Entitlements of any Loan Party in respect of any of the foregoing;
      all additional indebtedness from time to time owed to any Loan Party by any
      obligor on the Pledged Notes and 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 of the foregoing.  Additional Pledged Collateral may be
      General Intangibles or Investment Property.

     

     “Agreement”
means
      this
      Security Agreement.

     

    “Approved
      Deposit Account”
means any present or future Deposit Account of any Loan Party that (i)
      is
      maintained with Lender (or any affiliate thereof) or (ii) is subject to an
      effective Deposit Account Control Agreement in favor of Lender and maintained
      with a Deposit Account Bank.  “Approved Deposit Account”
includes all monies
      on deposit in a Deposit Account and all certificates and
      instruments, if any, representing or evidencing such Deposit
      Account.

     

     “Approved
      Securities
      Intermediary” means a Securities Intermediary or Commodity Intermediary
      acceptable to Lender and with respect to which a Loan Party has delivered to
      Lender an executed Control Account Agreement.

     

    “Banking
      Services” means each
      and any of the following bank services provided to any Loan Party
      by  Lender or any of its affiliates: (a) commercial credit cards, (b)
      stored value cards and (c) treasury management services (including, without
      limitation, controlled disbursement, automated clearinghouse transactions,
      return items, overdrafts and interstate depository network
      services).

     

    “Bankruptcy
      Code” means Title
      11 of the United States Code (11 USC, § 101 etseq),
      as amended from
      time to time, and any successor statute thereto, including (unless the context
      requires otherwise) any rules or regulations promulgated
      thereunder.

     

    “Capital
      Leases” means a lease
      that is required to be capitalized for financial reporting purposes in
      accordance with GAAP.

     

    “Cash
      Collateral Account”
means any deposit account over which Lender has sole dominion and control,
      or by
      contract agreement with others, established by Lender, in its sole discretion
      at
      Lender, and entitled “The Huntington National Bank, as Secured Party for
      Franklin Management Credit Corporation and/or Tribeca Lending Corp. (Blocked
      Account)” or such similar title as Lender may approve or require.

     

     

    
      
        
        

      

      
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    “Cash
      Equivalents” means (i)
      marketable direct obligations issued or unconditionally guaranteed by the United
      States of America or issued by any agency thereof and backed by the full faith
      and credit of the United States, in each case maturing within one (1) year
      from
      the date of acquisition thereof, (ii) marketable direct obligations issued
      by
      any state of the United States or any political subdivision of any such state
      or
      any public instrumentality thereof maturing within one (1) year from the date
      of
      acquisition thereof and, at the time of acquisition, having the highest rating
      obtainable from either S&P or Moody’s, and (iii) certificates of deposit or
      bankers’ acceptances maturing within one (1) year from the date of acquisition
      thereof either (A) issued by any bank organized under the laws of the United
      States or any state thereof which bank has a rating of A or A2, or better,
      from
      S&P or Moody’s, or (B) issued by any other bank insured by the Federal
      Deposit Insurance Corporation, (“FDIC”) provided
      that
      such certificates of deposit are less than or equal to, in the aggregate, the
      deposit insurance coverage limit set by the FDIC for single ownership
      accounts.

     

    “Collateral”
has
      the meaning
      specified in Section
      2.1.

     

    “Collection
      Account” means any
      Approved Deposit Account or Control Account in which cash and Cash Equivalents
      may from time to time be on deposit or held therein as provided in this
      Agreement.

     

    “Contingent
      Obligations” means
      any agreement, undertaking or arrangement by which any Loan Party assumes,
      guaranties, endorses, agrees to provide funding, or otherwise becomes or is
      contingently liable upon the obligation or liability of any other Loan
      Party.

     

    “Control
      Account” means a
      Securities Account or Commodity Account that is subject of an effective Control
      Account Agreement and that is maintained by any Loan Party with an Approved
      Securities Intermediary.  “Control Account” includes all
      Financial Assets held in a Securities Account or a Commodity Account and all
      certificates and instruments, if any, representing or evidencing the Financial
      Assets contained therein.

     

    “Control
      Account Agreement”
means an agreement, in form and substance acceptable to Lender, executed
      by the
      relevant Loan Party, Lender and the relevant Approved Securities
      Intermediary.

     

    “Copyright
      Licenses” means any
      written agreement naming any Loan Party as licensor or licensee granting any
      right under any Copyright, including the grant of any right to copy, publicly
      perform, create derivative works, manufacture, distribute, exploit or sell
      materials derived from any Copyright.

     

    “Copyrights”
means
      (a) all copyrights arising under the laws of the United States, any other
      country or any political subdivision thereof, whether registered or unregistered
      and whether published or unpublished, all registrations and recordings thereof
      and all applications in connection therewith, including all registrations,
      recordings and applications in the United States Copyright Office or in any
      foreign counterparts thereof, and (b) the right to obtain all renewals
      thereof.

     

     

    
      
        
        

      

      
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    “Credit
      Documents” has the
      meaning specified above in the recitals.

     

    “Deposit
      Account Bank” means a
      financial institution selected or approved by Lender and with respect to which
      a
      Loan Party has delivered to Lender an executed Deposit Account Control
      Agreement.

     

    “Deposit
      Account Control
      Agreement” means an agreement, in form and substance acceptable to
      Lender, executed by the relevant Loan Party, Lender and the relevant Deposit
      Account Bank.

     

    “Event
      of Default” means each
      of the following: (a) any “Forbearance Default” shall occur under the
      Forbearance Agreement; (b) Borrower or any other Loan Party fails to perform
      or
      observe any covenant, agreement or duty contained in this Agreement or any
      other
      Loan Document or any default or event of default occurs under any Loan Document;
      or (c) any warranty, representation or other statement made or deemed to be
      made
      in this Agreement or in any Loan Document is false or misleading in any
      respect.

     

    “Excluded
      Property” means
      Equipment owned by any Loan Party that is, and continues to be, subject to
      a
      Permitted Lien listed on Schedule 9 attached hereto,
      if the contract or other agreement pursuant to which such Lien is granted
      contains an enforceable prohibition on the creation of any Lien on such
      Equipment in favor of  Lender;  and (b) equity interests
      (whether Investment Property or General Intangibles), if the organizational
      or
      operating documents pursuant to which such equity interests are issued or
      governed contain an enforceable prohibition on the creation of any Lien on
      such
      equity interests in favor of Lender; in each case, only to the extent, and
      for
      so long as, such prohibition is not removed, terminated or rendered
      unenforceable or otherwise deemed ineffective by applicable Law; provided, however, that
“Excluded
      Property”
shall not include (i)  the right to receive any payment of money
      (including, without limitation, general intangibles for money due or to become
      due); and (ii) any proceeds, products, offspring, accessions, rents, profits,
      income, benefits, substitutions or replacements of any of the
      foregoing.

     

    “GAAP”
means
      generally
      accepted accounting principles set forth in the opinions and pronouncements
      of
      the Accounting Principles Board, the American Institute of Certified Public
      Accountants and the Financial Accounting Standards Board as in effect from
      time
      to time in the United States consistently applied.

     

    “Governmental
      Authority” means
      any nation or government, any federal, state, local or other political
      subdivision thereof and any entity exercising executive, legislative, judicial,
      regulatory or administrative authority or functions of or pertaining to
      government, including any authority or other quasi-governmental entity
      established to perform any of such functions.

     

    “Indebtedness”
means,
      at any
      time, (i) all indebtedness, obligations or other liabilities (other than
      accounts payable arising in the ordinary course of business payable on terms
      customary in the trade) which in accordance with GAAP should be classified
      as
      liabilities on the balance sheet of such Person, including without limitation,
      (A) for borrowed money or evidenced by debt securities, debentures, acceptances,
      notes or other similar instruments, and any accrued interest, fees and charges
      relating thereto, (B) under profit payment agreements or in respect
      of

     

     

     

    
      
        
        

      

      
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    obligations
      to redeem, repurchase or exchange any securities or to pay dividends in respect
      of any stock, (C) with respect to letters of credit, bankers acceptances,
      interest rate swaps or other contracts, currency agreement or other financial
      products, (D) to pay the deferred purchase price of property or services, or
      (E)
      in respect of Capital Leases; (ii) all indebtedness, obligations or other
      liabilities secured by a lien on any property, whether or not such indebtedness,
      obligations or liabilities are assumed by the owner of the same; and (iii)
      all
      Contingent Obligations.

    


    “Insolvency
      Proceeding” means
      any proceeding commenced by or against any Person under any provision of the
      Bankruptcy Code or under any other state or federal bankruptcy or insolvency
      law, receivership, assignment for the benefit of creditors, formal or informal
      moratorium, forbearance, composition, extension generally with creditors, or
      proceedings seeking reorganization, arrangement, or other similar
      relief.

     

    “Intellectual
      Property” means,
      collectively, all rights, priorities and privileges of any Loan Party relating
      to intellectual property, whether arising under United States, multinational
      or
      foreign laws or otherwise, including domain names, Copyrights, Copyright
      Licenses, Patents, Patent Licenses, Trademarks, Trademark Licenses and trade
      secrets, and all rights to sue at law or in equity for any infringement or
      other
      impairment thereof, including the right to receive all proceeds and damages
      therefrom.

     

    “Intercompany
      Note” means any
      promissory note evidencing loans made by any Loan Party to any of its
      Subsidiaries or another Loan Party.

     

    “Joinder
      Agreement” means a
      joinder agreement, in the form and substance acceptable to Lender, executed
      by
      Lender and the relevant Subsidiary that Borrower is required to cause to become
      a party hereto as a Loan Party.

     

    “Law”
means
      any law (including
      common law), constitution, statute, treaty, convention, regulation, rule,
      ordinance, order, injunction, writ, decree or award of any Governmental
      Authority.

     

    “Lien”
means
      any interest in
      an asset securing an obligation owed to, or a claim by, any Person other than
      the owner of the asset, whether such interest shall be based on the common
      law,
      statute, or contract, whether such interest shall be recorded or perfected,
      and
      whether such interest shall be contingent upon the occurrence of some future
      event or events or the existence of some future circumstance or circumstances,
      including the lien or security interest arising from any mortgage, deed of
      trust, encumbrance, pledge, hypothecation, assignment (collateral or otherwise),
      hypothec, deposit arrangement, security agreement, conditional sale, trust
      receipt, lease, consignment, or bailment for security purposes, judgment, claim
      encumbrance or statutory trust and also including reservations, exceptions,
      encroachments, easements, rights-of-way, covenants, conditions, restrictions,
      leases, and other title exceptions and encumbrances affecting real
      property.

     

    “LLC”
means
      each limited
      liability company in which a Loan Party has an interest, including those set
      forth on Schedule
      3.

     

     

    
      
        
        

      

      
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    “LLC
      Agreement” means each
      operating agreement with respect to an LLC, as each agreement has heretofore
      been, and may hereafter be, amended, restated, supplemented or otherwise
      modified from time to time.

     

    “Loan
      Documents” means the
      Credit Documents, any agreements or documents evidencing or relating to the
      provision of any Banking Services by Lender for the benefit of a Loan Party,
      and
      any other agreement, document, or arrangement  (whether now existing
      or hereafter arising) by and among Lender (or its affiliate) and one or more
      Loan Party.

     

     “Loan
      Party” means each of
      Borrower, any Subsidiary of Borrower that is a signatory hereto on the date
      of
      this Agreement, and any other Person who becomes a party to this Agreement
      pursuant to a Joinder Agreement (in accordance with Section 7.10), and their
      respective successors and assigns.

     

    “Material
      Intellectual
      Property” means Intellectual Property owned by or licensed to a Loan
      Party and material to such Loan Party’s business.

     

    “Partnership”
means
      each
      partnership or joint venture in which a Loan Party has an interest, including
      those set forth on Schedule
      3.

     

    “Partnership
      Agreement” means
      each partnership or joint venture agreement governing a Partnership, as each
      such agreement has heretofore been, and may hereafter be, amended, restated,
      supplemented or otherwise modified.

     

    “Patents”
means
      (a) all
      letters patent of the United States, any other country or any political
      subdivision thereof and all reissues and extensions thereof, (b) all
      applications for letters patent of the United States or any other country and
      all divisions, continuations and continuations-in-part thereof and (c) all
      rights to obtain any reissues or extensions of the foregoing.

     

    “Patent
      License” means all
      agreements, whether written or oral, providing for the grant by or to any Loan
      Party of any right to manufacture, use, import, sell or offer for sale any
      invention covered in whole or in part by a Patent.

     

    “Permitted
      Contests” means the
      right of Borrower or another Loan Party to contest or protest any Lien (other
      than any such Lien that secures the Secured Obligations), taxes (other than
      payroll taxes or taxes that are the subject of a United States federal tax
      lien), or rental payment, provided that (i) a reserve with respect to such
      obligation is established on Borrower’s or another Loan Party’s, as the case may
      be, books and records in such amount as is required under GAAP, (ii) any such
      protest is instituted promptly and prosecuted diligently by Borrower or the
      applicable other Loan Party in good faith, and (iii) Lender is satisfied in
      its
      sole, good faith discretion, that, while any such protest is pending, there
      will
      be no impairment of the enforceability, validity, or priority of any of a
      Lender’s Liens.

     

    “Permitted
      Liens” means (i)
      any Liens held by Lender or an affiliate of Lender, (ii) Liens for unpaid taxes
      that either are not yet delinquent, or do not constitute an Event of Default
      hereunder and are the subject of a Permitted Contest, (iii) Liens set forth
      on
Schedule 9 to the
      extent of the Indebtedness referenced therein, (iv) the interests of lessors
      under operating leases,

     

     

     

    
      
        
        

      

      
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    (v)
      Liens
      securing purchase money Indebtedness or the interests of lessors under Capital
      Leases to the extent that such Liens or interests secure Permitted Purchase
      Money Indebtedness, (vi) Liens arising by operation of law in favor of
      warehousemen, landlords, carriers, mechanics, materialmen, or laborers, incurred
      in the ordinary course of a Loan Party’s business and not in connection with the
      borrowing of money, and which Liens either (A) are for sums not yet delinquent,
      or (B) are the subject of Permitted Contests, (vii) Liens arising from deposits
      made in connection with obtaining worker’s compensation or other unemployment
      insurance, (viii) Liens or deposits to secure performance of bids, tenders,
      or
      leases incurred in the ordinary course of a Loan Party’s business and not in
      connection with the borrowing of money, (ix) Liens granted as security for
      surety or appeal bonds in connection with obtaining such bonds in the ordinary
      course of Borrower’s business, and (x) Liens resulting from any judgment or
      award that is not an Event of Default hereunder.

     

    “Permitted
      Purchase Money
      Indebtedness” means secured or unsecured purchase money Indebtedness
      (including obligations under Capital Leases) incurred to finance the acquisition
      of fixed assets or equipment, if such Indebtedness (i) has a scheduled maturity
      and is not due on demand, (ii) does not exceed the purchase price of the items
      being purchased, and (iii) is not secured by any property or assets other than
      the item or items being purchased.

     

    “Person”
means
      any individual,
      corporation, firm, enterprise, partnership, trust, incorporated or
      unincorporated association, joint venture, joint stock company, limited
      liability company or any other entity of any kind or any government or political
      subdivision or any agency, department or instrumentality thereof.

     

    “Pledged
      Collateral” means,
      collectively, the Pledged Notes, the Pledged Stock, the Pledged Partnership
      Interests, the Pledged LLC Interests, any other Investment Property of any
      Loan
      Party, all certificates or other instruments representing any of the foregoing
      and all Security Entitlements of any Loan Party in respect of any of the
      foregoing.  Pledged Collateral may be General Intangibles or
      Investment Property.

     

    “Pledged
      LLC Interests” means
      all right, title and interest of any Loan Party as a member of any LLC and
      all
      right, title and interest of any Loan Party in, to and under any LLC Agreement
      to which it is a party.

     

    “Pledged
      Notes” means all
      right, title and interest of any Loan Party in the Instruments evidencing all
      Indebtedness owed to such Loan Party, including all Indebtedness described
      on
Schedule 3, issued by
      the obligors named therein.

     

    “Pledged
      Partnership
      Interests” means all right, title and interest of any Loan Party as a
      limited or general partner in all Partnerships and all right, title and interest
      of any Loan Party in, to and under any Partnership Agreements to which it is
      a
      party.

     

    “Pledged
      Stock” means the
      shares of capital stock owned by each Loan Party, including all shares of
      capital stock listed on Schedule 3.

     

     

    
      
        
        

      

      
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    “Rate
      Management Transactions”
means any transaction (including an agreement with respect thereto)
      now existing
      or hereafter entered into among Borrower, any Subsidiary thereof, Lender or
      any
      affiliate of Lender, or any of its subsidiaries or affiliates or their
      successors, which is a rate swap, basis swap, forward rate transaction,
      commodity swap, commodity option, equity or equity index swap, equity or equity
      index option, bond option, interest rate option, foreign exchange transaction,
      cap transaction, floor transaction, collar transaction, forward transaction,
      currency swap transaction, cross-currency rate swap transaction, currency option
      or any other similar transaction (including any option with respect to any
      of
      these transactions) or any combination thereof, whether linked to one or more
      interest rates, foreign currencies, commodity prices, equity prices or other
      financial measures.

     

     “Secured
      Obligations” means
      (a) any and all indebtedness, obligations, and liabilities now existing or
      hereafter arising of Borrower or any other Loan Party to Lender (or any
      affiliate) or arising under or in connection with or evidenced by (i) the Credit
      Documents, this Agreement, or any other Loan Document, (ii) any other agreement
      relating to (A) letters of credit or pursuant to any letter of credit agreements
      or applications (if any), or pursuant to any agreement or document relating
      to
      Banking Services, (B) any agreement in respect of any Rate Management
      Transaction, (C) any agreement for any electronic transfers, treasury
      management, cash management services and deposit and disbursement account
      liability, and (D) any agreement of guaranty, surety or indemnity issued by
      such
      Person, (b) any and all indebtedness, obligations, and liabilities, now existing
      or hereafter arising, whether absolute or contingent and however and whenever
      created, arising, evidenced or acquired, of Borrower or any other Loan Party
      owed to Lender (or any affiliate of Lender), (and in each instance in clauses
      (a) and (b) above, whether arising before or after the filing of a petition
      in
      bankruptcy and including all interest accrued after any such petition date),
      due
      or to become due, direct or indirect, absolute or contingent, and howsoever
      evidenced, held or acquired, and (c) any and all reasonable expenses and
      charges, legal or otherwise, suffered or incurred by Lender or any affiliate
      of
      Lender in collecting or enforcing any such indebtedness, obligation, and
      liability or in realizing on or protecting or preserving any security therefore,
      including, without limitation, the Lien and security interest granted by any
      Credit Document.

     

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

     

    “Subsidiary”
of a
      Person means any
      corporation, partnership, limited liability company or other entity in which
      such Person directly or indirectly owns or controls the securities or other
      ownership interests having ordinary voting power to elect a majority of the
      board of directors, or appoint managers or other persons performing similar
      functions.

     

     “Trademark
      License” means any
      agreement, whether written or oral, providing for the grant by or to any Loan
      Party of any right to use any Trademark.

     

    “Trademarks”
means
      (a) all trademarks, trade names, corporate names, company names, business
      names, fictitious business names, trade styles, service marks, logos and other
      source or business identifiers, and, in each case, all goodwill associated
      therewith, whether now existing or hereafter adopted or acquired, all
      registrations and recordings thereof and all applications in connection
      therewith, in each case whether in the United States Patent and Trademark Office
      or in any similar office or agency of the United States, any State thereof
      or
      any other country or any

     

     

    
      
        
        

      

      
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    political
      subdivision thereof, or otherwise, and all common-law rights related thereto,
      and (b) the right to obtain all renewals thereof.

     

    “UCC”
means
      the Uniform
      Commercial Code as from time to time in effect in the State of Ohio; provided, however,
      that, in the event
      that, by reason of mandatory provisions of Law, any of the attachment,
      perfection or priority of Lender’s security interest in any Collateral is
      governed by the Uniform Commercial Code as in effect in a jurisdiction other
      than the State of Ohio, the term “UCC” shall mean the Uniform
      Commercial Code as in effect in such other jurisdiction for purposes of the
      provisions hereof relating to such attachment, perfection or priority and for
      purposes of definitions related to such provisions.

     

    “Vehicles”
means
      all vehicles
      covered by a certificate of title law of any state.

     

    Section
      1.2  Certain
      Other Terms

     

    (a) In
      this
      Agreement, in the computation of periods of time from a specified date to a
      later specified date, the word “from” means “from and including” and the words
“to” and “until” each mean “to but excluding” and the word “through” means “to
      and including.”

     

    (b) The
      terms
“herein,” “hereof,” “hereto” and “hereunder” and similar terms refer to this
      Agreement as a whole and not to any particular Article, Section, subsection
      or
      clause in this Agreement.

     

    (c) References
      herein to a Schedule, Article, Section, subsection or clause refer to the
      appropriate Schedule to, or Article, Section, subsection or clause in this
      Agreement.

     

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

     

    (e) Where
      the
      context requires, provisions relating to any Collateral, when used in relation
      to a Loan Party, shall refer to such Loan Party’s Collateral or any relevant
      part thereof.

     

    (f) Any
      reference in this Agreement to a Loan Document shall include all appendices,
      exhibits and schedules thereto, and, unless specifically stated otherwise all
      amendments, restatements, supplements or other modifications thereto, and as
      the
      same may be in effect at any time such reference becomes operative.

     

    (g) The
      term
“Lender” includes its successors.

     

    (h) References
      in this Agreement to any statute shall be to such statute as amended or modified
      and in effect from time to time.

     

     

     

    
      
        
        

      

      
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    ARTICLE
      II   Grant
      of
      Security Interest

     

    Section
      2.1 Collateral

     

    For
      the
      purposes of this Agreement, all of the following property now owned or at any
      time hereafter acquired by a Loan Party or in which a Loan Party now has or
      at
      any time in the future may acquire any right, title or interests is collectively
      referred to as the “Collateral”:

     

    all
      Accounts and all rights to payment
      of monetary obligations, whether or not earned by performance, for property
      that
      has been or is to be sold, leased, licensed, assigned or otherwise disposed
      of,
      or for services rendered or to be rendered, to a government, state, or
      governmental unit; all Chattel Paper; all Deposit Accounts; any amounts or
      refunds received from or in connection with any taxing authority; all Documents;
      all Equipment; all General Intangibles (including, without limitation, all
      contractual rights arising under any purchase agreement or assignments relating
      to mortgage loans); all Instruments; all Inventory; all Investment Property;
      all
      Letter-of-Credit Rights; all Vehicles; the Commercial Tort Claims described
      on
Schedule 8 and on any
      supplement thereto received by Lender; all books and records pertaining to
      the
      other property described in this Section
      2.1; all other goods and personal
      property of such Loan Party, whether tangible or intangible and wherever
      located; all property of any Loan Party held by Lender, including all property
      of every description, in the possession or custody of or in transit to Lender
      for any purpose, including safekeeping, collection or pledge, for the account
      of
      such Loan Party or as to which such Loan Party may have any right or power;
      and
      to the extent not otherwise included, all Proceeds.

     

    Section
      2.2 Grant
      of
      Security Interest
      in
Collateral

     

    Borrower
      and each other Loan Party, as collateral security for the full, prompt and
      complete payment and performance when due (whether at stated maturity, by
      acceleration or otherwise) of the Secured Obligations, hereby collaterally
      assigns, mortgages, pledges and hypothecates to Lender, and grants (whether
      under the UCC or otherwise) to Lender a lien on and security interest in, and
      a
      collateral assignment of, all of its right, title and interest in, to and under
      the Collateral of such Loan Party; provided, however,
      that the foregoing
      grant of security interest shall not include a security interest in any Excluded
      Property; provided,
further,
      that, if and
      when any property shall cease to be Excluded Property, Lender shall have, and
      at
      all times after the date hereof deemed to have had, a security interest in
      such
      property.

     

    Section
      2.3 Cash
      Collateral Accounts

     

    Lender
      may, in its discretion, establish one or more Cash Collateral Accounts with
      Lender, one or more other Deposit Account Banks and one or more Approved
      Securities Intermediaries as it in its sole discretion shall
      determine.  Each such account shall be in the name of Lender (but may
      also have words referring to each Loan Party and such account’s
      purpose).  Each Loan Party agrees that each such Cash Collateral
      Account shall be under the sole dominion and control of
      Lender.  Lender shall be the sole Entitlement Holder with respect to
      each Securities Account constituting a Cash Collateral Account and the only
      Persons authorized to give Entitlement Orders with respect
      thereto.  Neither Borrower nor any other Loan Party or Person claiming
      on behalf of or through Borrower or any other Loan Party shall have any right
      to

     

     

     

    
      
        
        

      

      
        10

        
          

        

      

      
        
        

      

    

     

     

    demand
      payment of any funds held in any Cash Collateral Account at any time prior
      to
      the termination of all outstanding Letters of Credit and the indefeasible
      payment in full of all Secured Obligations.  During the continuance of
      a Forbearance Default, Lender shall apply all funds on deposit in any Cash
      Collateral Account as Lender may elect.

     

    ARTICLE
      III    Representations
      and
      Warranties

     

    To
      induce
      Lender to enter into or maintain the Credit Documents, each Loan Party hereby
      represents and warrants each of the following to Lender:

     

    Section
      3.1 Title;
      No Other
      Liens

     

    Except
      for the Lien granted to Lender pursuant to this Agreement and the other
      Permitted Liens, such Loan Party is the record and beneficial owner of the
      Pledged Collateral pledged by it hereunder constituting Instruments or
      certificated securities, is the Entitlement Holder of all such Pledged
      Collateral constituting Investment Property held in a Securities Account and
      has
      rights in or the power to transfer each other item of Collateral in which a
      Lien
      is granted by it hereunder, free and clear of any Lien.

     

    Section
      3.2  Perfection
      and Priority

     

    The
      security interest granted pursuant to this Agreement shall constitute a valid
      and continuing perfected security interest in favor of Lender in the Collateral
      for which perfection is governed by the UCC or filing with the United States
      Copyright Office upon (i) the completion of the filings and other actions
      specified on Schedule 4
      which, in the case of all filings and other documents referred to on such
      schedule, have been delivered to Lender in completed and duly executed form),
      (ii) the delivery to Lender of all Collateral consisting of Instruments and
      certificated securities, in each case properly endorsed for transfer to Lender
      or in blank, (iii) the execution of Control Account Agreements with respect
      to Investment Property not in certificated form, (iv) the execution of
      Deposit Account Control Agreements with respect to all Deposit Accounts and
      (v) all appropriate filings having been made with the United States
      Copyright Office.  Such security interest shall be prior to all other
      Liens on the Collateral except for Permitted Liens having priority over Lender’s
      Lien by operation of law or otherwise, as permitted under this Agreement or
      any
      other Loan Documents.

     

    Section
      3.3 Name;
      Jurisdiction of Organization; Chief Executive Office

     

    Except
      as set forth on Schedule 2, within the
      five-year period preceding the date hereof, such Loan Party has not had, or
      operated in any jurisdiction, under any trade name, fictitious name or other
      name other than its legal name, and Such Loan Party’s jurisdiction of
      organization, organizational identification number, if any, and the location
      of
      such Loan Party’s chief executive office or sole place of business is specified
      on Schedule
      2.

     

    Section
      3.4   Inventory
      and Equipment

     

    Such
      Loan
      Party’s Inventory and Equipment (other than mobile goods and Inventory or
      Equipment in transit) are kept at the locations listed on Schedule 5 as supplemented
      pursuant to the terms hereof.

     

     

    
      
        
        

      

      
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    Section
      3.5 Pledged
      Collateral

     

    (a) The
      Pledged Stock, Pledged Partnership Interests and Pledged LLC Interests pledged
      hereunder by such Loan Party are listed on Schedule 3 and constitute
      that percentage of the issued and outstanding equity of all classes of each
      issuer thereof as set forth on Schedule 3.

     

    (b) All
      of
      the Pledged Stock, Pledged Partnership Interests and Pledged LLC Interests
      have
      been duly and validly issued and are fully paid and nonassessable.

     

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

     

    (d) Except
      for Pledged Collateral and Additional Pledged Collateral not required to be
      delivered to Lender pursuant to Section
      4.7, all Pledged Collateral and, if applicable, any Additional
      Pledged Collateral, consisting of certificated securities or Instruments has
      been delivered to Lender in accordance with Section
      4.4(a).

     

    (e) All
      Pledged Collateral held by a Securities Intermediary in a Securities Account
      is
      in a Control Account.

     

    (f) Other
      than the Pledged Partnership Interests and the Pledged LLC Interests that
      constitute General Intangibles, there is no Pledged Collateral other than (i)
      that represented by certificated securities or Instruments in the possession
      of
      Lender, or (ii) that consisting of Financial Assets currently held in a Control
      Account.

     

    Section
      3.6 Accounts

     

    No
      amount
      in excess of $100,000 payable to such Loan Party under or in connection with
      any
      Account is evidenced by any Instrument or Chattel Paper that has not been
      delivered to Lender, properly endorsed for transfer, to the extent delivery
      is
      required by Section
      4.4.

     

    Section
      3.7 IntellectualProperty

     

    (a) Schedule
      6 lists all Material
      Intellectual Property of such Loan Party, separately identifying that owned
      by
      such Loan Party and that licensed to such Loan Party.  The Material
      Intellectual Property set forth on Schedule 6 for such Loan
      Party constitutes all of the intellectual property rights necessary to conduct
      its business.

     

    (b) All
      Material Intellectual Property owned by such Loan Party is valid, subsisting,
      unexpired and enforceable, has not been adjudged invalid and has not been
      abandoned and the use thereof in the business of such Loan Party does not
      infringe the intellectual property rights of any other Person.

     

     

    
      
        
        

      

      
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    (c) Except
      as
      set forth in Schedule
      6, none of the Material Intellectual Property owned by such Loan Party
      is
      the subject of any licensing or franchise agreement pursuant to which such
      Loan
      Party is the licensor or franchisor.

     

    (d) No
      holding, decision or judgment has been rendered by any Governmental Authority
      that would limit, cancel or question the validity of, or such Loan Party’s
      rights in, any Material Intellectual Property.

     

    (e) Except
      as
      set forth in Schedule
      6, no action or proceeding seeking to limit, cancel or question the
      validity of any Material Intellectual Property owned by such Loan Party or
      such
      Loan Party’s ownership interest therein is pending or, to the knowledge of such
      Loan Party, threatened.  There are no claims, judgments or settlements
      to be paid by such Loan Party relating to the Material Intellectual
      Property.

     

    
      	
            	
              Section
                3.8  

            	
              Deposit
                Accounts; Securities
                Accounts

            


    

     

    The
      only
      Deposit Accounts or Securities Accounts maintained by any Loan Party are those
      listed on Schedule 7 as
      supplemented pursuant to the terms hereof, which sets forth such information
      separately for each Loan Party.

     

    
      	
            	
              Section
                3.9  

            	
              Commercial
                Tort Claims

            


    

     

    The
      only
      existing or potential Commercial Tort Claims pending or threatened in writing
      of
      any Loan Party existing (regardless of whether the amount, defendant or other
      material facts can be determined and regardless of whether such Commercial
      Tort
      Claim has been asserted, threatened or has otherwise been made known to the
      obligee thereof or whether litigation has been commenced for such claims) are
      those listed on Schedule 8
as supplemented pursuant
      to the terms hereof, which sets forth such
      information separately for each Loan Party.

     

    ARTICLE
      IV   Covenants

     

    Each
      Loan
      Party agrees with Lender to the following, as long as any Secured Obligation
      remains outstanding or Lender has any obligation to extend credit to any Loan
      Party under any Loan Document, and, in each case, unless Lender otherwise
      consents in writing:

     

    Section
      4.1 Generally

     

    Such
      Loan Party shall (a) except
      for the security interest created by this Agreement, not create or suffer to
      exist any Lien upon or with respect to any Collateral, except Permitted Liens,
      (b) not use or permit any Collateral to be used unlawfully or in violation
      of any provision of this Agreement, any other Loan Document, any applicable
      Law
      or any policy of insurance covering the Collateral, (c) not sell, transfer
      or assign (by operation of law or otherwise) any Collateral except as permitted
      under the Loan Documents or otherwise within the ordinary course of its
      business, (d) not enter into any agreement or undertaking restricting the
      right or ability of such Loan Party or Lender to sell, assign or transfer any
      Collateral except as permitted under the Loan Documents and (e) promptly
      notify Lender of its entry into any agreement or assumption of undertaking
      that
      restricts the ability to sell, assign or transfer any Collateral.

     

     

    
      
        
        

      

      
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    Section
      4.2 Maintenance
      of Perfected Security Interest; Further Documentation

     

    (a) Such
      Loan
      Party shall maintain the security interest created by this Agreement as a
      perfected security interest having at least the priority described in Section
      3.2 and
      shall defend such security interest against the claims and demands of all
      Persons.

     

    (b) Such
      Loan
      Party shall furnish to Lender from time to time statements and schedules further
      identifying and describing the Collateral and such other reports in connection
      with the Collateral as Lender may reasonably request, all in reasonable
      detail.

     

    (c) At
      any
      time and from time to time, upon the written request of Lender, and at the
      sole
      expense of such Loan Party, such Loan Party shall promptly and duly execute
      and
      deliver, and have recorded, such further instruments and documents and take
      such
      further action as Lender may reasonably request for the purpose of obtaining
      or
      preserving the full benefits of this Agreement and of the rights and powers
      herein granted, including the filing of any financing or continuation statement
      under the UCC (or other similar laws) in effect in any jurisdiction with respect
      to the security interest created hereby and the execution and delivery of
      Deposit Account Control Agreements and Control Account Agreements.

     

    Section
      4.3 Changes
      in Locations, Name,
      Etc.

     

    (a) Except
      upon 15 days’ prior written notice to Lender and delivery to Lender of
      (i) all additional documents reasonably requested by Lender to maintain the
      validity, perfection and priority of the security interests provided for herein
      and (ii) if applicable, a written supplement to Schedule 5 showing any
      additional location at which Inventory or Equipment shall be kept, such Loan
      Party shall not do any of the following:

     

    (i) permit
      any Inventory or Equipment to be kept at a location other than those listed
      on
Schedule 5, except for
      Inventory or Equipment in transit to and from such locations;

     

    (ii) change
      its jurisdiction of organization or the location of its chief executive office
      or sole place of business from that referred to in Section
      3.3; or

     

    (iii) change
      its name, identity or corporate structure to such an extent that any financing
      statement filed in connection with this Agreement would become seriously
      misleading.

     

    (b) Such
      Loan
      Party shall keep and maintain at its own cost and expense satisfactory and
      complete records of the Collateral, including a record of all payments received
      and all credits granted with respect to the Collateral and all other dealings
      with the Collateral.  Except to the extent any such Vehicle is
      Excluded Property, if requested by Lender, the security interest of Lender
      shall
      be noted on the certificate of title of each Vehicle.

     

    


    
      
        
        

      

      
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    Section
      4.4 Pledged
      Collateral

     

    (a) 
      Such
      Loan Party shall (i) deliver to Lender, all certificates and Instruments
      representing or evidencing any Pledged Collateral (including Additional Pledged
      Collateral), whether now existing or hereafter acquired, in suitable form for
      transfer by delivery or, as applicable, accompanied by such Loan Party’s
      endorsement, where necessary, or duly executed instruments of transfer or
      assignment in blank, all in form and substance satisfactory to Lender, together,
      in respect of any Additional Pledged Collateral, with a Pledge Amendment, duly
      executed by the Loan Parties, in substantially form substance acceptable to
      Lender or such other documentation acceptable to Lender and (ii) maintain
      all other Pledged Collateral constituting Investment Property in a Control
      Account.  Such Loan Party authorizes Lender to attach each Pledge
      Amendment to this Agreement.  From and after the occurrence and during
      the continuance of an Event of Default, Lender shall have the right, at any
      time
      in its discretion and without notice to any Loan Party, to transfer to or to
      register in its name or in the name of its nominees any Pledged
      Collateral.  Lender shall have the right at any time to exchange any
      certificate or instrument representing or evidencing any Pledged Collateral
      for
      certificates or instruments of smaller or larger denominations.

     

    (b) Except
      as
      provided in Article
      V, such Loan Party shall be entitled to receive all cash dividends
      paid in respect of the Pledged Collateral (other than liquidating or similar
      dividends) with respect to the Pledged Collateral.  Any sums paid upon
      or in respect of any Pledged Collateral upon the liquidation or dissolution
      of
      any issuer of any Pledged Collateral, any distribution of capital made on or
      in
      respect of any Pledged Collateral or any property distributed upon or with
      respect to any Pledged Collateral pursuant to the recapitalization or
      reclassification of the capital of any issuer of Pledged Collateral or pursuant
      to the reorganization thereof shall, unless otherwise subject to a perfected
      security interest in favor of Lender, be delivered to Lender to be held by
      it
      hereunder as additional collateral security for the Secured
      Obligations.  If any sum of money or property so paid or distributed
      in respect of any Pledged Collateral shall be received by such Loan Party,
      such
      Loan Party shall, until such money or property is paid or delivered to Lender,
      hold such money or property in trust for Lender, segregated from other funds
      of
      such Loan Party, as additional security for the Secured
      Obligations.

     

    (c) Except
      as
      provided in Article
      V, such Loan Party shall be
      entitled to exercise all voting, consent and corporate rights with respect
      to
      the Pledged Collateral; provided, however, that no
      vote shall be cast, consent given or right exercised or other action taken
      by
      such Loan Party that would impair the Collateral, be inconsistent with or result
      in any violation of any provision of this Agreement or any other Loan Document
      or, without prior notice to Lender, enable or permit any issuer of Pledged
      Collateral to issue any stock or other equity securities of any nature or to
      issue any other securities convertible into or granting the right to purchase
      or
      exchange for any stock or other equity securities of any nature of any issuer
      of
      Pledged Collateral.

     

    (d) Such
      Loan
      Party shall not grant control over any Investment Property to any Person other
      than Lender.

     

     

    
      
        
        

      

      
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    (e) In
      the
      case of each Loan Party that is an issuer of Pledged Collateral, such Loan
      Party
      agrees to be bound by the terms of this Agreement relating to the Pledged
      Collateral issued by it and shall comply with such terms insofar as such terms
      are applicable to it.  In the case of each Loan Party that is a
      partner in a Partnership, such Loan Party hereby consents to the extent required
      by the applicable Partnership Agreement to the pledge by each other Loan Party,
      pursuant to the terms hereof, of the Pledged Partnership Interests in such
      Partnership and to the transfer of such Pledged Partnership Interests to Lender
      or its nominee and to the substitution of Lender or its nominee as a substituted
      partner in such Partnership with all the rights, powers and duties of a general
      partner or a limited partner, as the case may be.  In the case of each
      Loan Party that is a member of an LLC, such Loan Party hereby consents to the
      extent required by the applicable LLC Agreement to the pledge by each other
      Loan
      Party, pursuant to the terms hereof, of the Pledged LLC Interests in such LLC
      and to the transfer of such Pledged LLC Interests to Lender or its nominee
      and
      to the substitution of Lender or its nominee as a substituted member of the
      LLC
      with all the rights, powers and duties of a member of the LLC in
      question.

     

    (f) Such
      Loan
      Party shall not agree to any amendment of an LLC Agreement or Partnership
      Agreement that in any way adversely affects the perfection of the security
      interest of Lender in the Pledged Partnership Interests or Pledged LLC Interests
      pledged by such Loan Party hereunder, including any amendment electing to treat
      the membership interest or partnership interest of such Loan Party as a security
      under Article 8 of the UCC.

     

    Section
      4.5 Control
      Accounts; Approved Deposit Accounts

     

    (a) 
      Such
      Loan Party shall use its best efforts to get control agreements on all accounts
      within 30 days of the date hereof, and shall (i) deposit in an Approved
      Deposit Account all cash received by such Loan Party, (ii) not establish or
      maintain any Securities Account that is not a Control Account and (iii) not
      establish or maintain any Deposit Account other than with a Deposit Account
      Bank, Lender or an affiliate of Lender; provided, however, that any Loan Party
      may maintain payroll, withholding tax and other fiduciary accounts with Lender
      or an affiliate thereof in Deposit Accounts that are not Approved Deposit
      Accounts.

     

    (b) Such
      Loan
      Party shall instruct each Account Debtor or other Person obligated to make
      a
      payment to such Loan Party under a General Intangible to make payment, or to
      continue to make payment, as the case may be, to an Approved Deposit Account
      and
      shall deposit in an Approved Deposit Account all Proceeds of such Accounts
      and
      General Intangibles received by such Loan Party from any other Person
      immediately upon receipt.

     

    (c) In
      the
      event (i) such Loan Party or any Approved Securities Intermediary or
      Deposit Account Bank shall, after the date hereof, terminate an agreement with
      respect to the maintenance of a Control Account or Approved Deposit Account
      for
      any reason, (ii) Lender shall demand such termination as a result of the
      failure of an Approved Securities Intermediary or Deposit Account Bank to comply
      with the terms of the applicable Control Account Agreement or Deposit Account
      Control Agreement, or (iii) Lender determines in its sole good faith discretion
      that the financial condition of an Approved Securities Intermediary or Deposit
      Account Bank, as the case may be, has materially deteriorated, such Loan Party
      agrees to notify all of its obligors that were making payments to such
      terminated Control Account or Approved

     

     

    
      
        
        

      

      
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     Deposit
      Account, as the case may be, to make all future payments to another Control
      Account or Approved Deposit Account, as the case may be.

     

    (d)           
      Lender agrees that it shall not provide any instruction with respect to any
      Approved Deposit Account or Control Account unless a Forbearance Default has
      occurred and is continuing.

     

    Section
      4.6 Accounts

     

    (a) Such
      Loan
      Party shall not, other than in the ordinary course of business consistent with
      its past practice, (i) grant any extension of the time of payment of any
      Account, (ii) compromise or settle any Account for less than the full
      amount thereof, (iii) release, wholly or partially, any Person liable for
      the payment of any Account, (iv) allow any credit or discount on any
      Account or (v) amend, supplement or modify any Account in any manner that
      could adversely affect the value thereof.

     

    (b) Lender
      shall have the right to make test verifications of the Accounts in any manner
      and through any medium that Lender reasonably considers advisable, and such
      Loan
      Party shall furnish all such assistance and information as Lender may reasonably
      require in connection therewith.  At any time and from time to time,
      upon Lender’s request and at the expense of the relevant Loan Party, such Loan
      Party shall cause independent public accountants or others satisfactory to
      Lender to furnish to Lender reports showing reconciliations, aging and test
      verifications of, and trial balances for, the Accounts.

     

    Section
      4.7 Delivery
      of Instruments and Chattel Paper

     

    If
      any
      amount in excess of $100,000 payable under or in connection with any Collateral
      owned by such Loan Party shall be or become evidenced by an Instrument or
      Chattel Paper, such Loan Party shall immediately deliver such Instrument or
      Chattel Paper to Lender, duly indorsed in a manner satisfactory to Lender,
      or,
      if consented to by Lender, shall mark all such Instruments and Chattel Paper
      with the following legend:  “This writing and the obligations
      evidenced or secured hereby are subject to the security interest of The
      Huntington National Bank”.

     

    
      	
            	
              Section
                4.8  

            	
              Intellectual
                Property

            


    

     

    (a) Such
      Loan
      Party (either itself or through licensees) shall (i) continue to use each
      Trademark that is Material Intellectual Property in order to maintain such
      Trademark in full force and effect with respect to each class of goods for which
      such Trademark is currently used, free from any claim of abandonment for
      non-use, (ii) maintain as in the past the quality of products and services
      offered under such Trademark, (iii) use such Trademark with the appropriate
      notice of registration and all other notices and legends required by applicable
      Law, (iv) not adopt or use any mark that is confusingly similar or a
      colorable imitation of such Trademark unless Lender shall obtain a perfected
      security interest in such mark pursuant to this Agreement and (v) not (and
      not permit any licensee or sublicensee thereof to) do any act or knowingly
      omit
      to do any act whereby such Trademark may become invalidated or impaired in
      any
      way.

     

     

     

    
      
        
        

      

      
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    (b) Such
      Loan
      Party (either itself or through licensees) shall not do any act, or omit to
      do
      any act, whereby any Patent that is Material Intellectual Property may become
      forfeited, abandoned or dedicated to the public.

     

    (c) Such
      Loan
      Party (either itself or through licensees) (i) shall not (and shall not
      permit any licensee or sublicensee thereof to) do any act or omit to do any
      act
      whereby any portion of the Copyrights that is Material Intellectual Property
      may
      become invalidated or otherwise impaired and (ii) shall not (either itself
      or through licensees) do any act whereby any portion of the Copyrights that
      is
      Material Intellectual Property may fall into the public domain.

     

    (d) Such
      Loan
      Party (either itself or through licensees) shall not do any act, or omit to
      do
      any act, whereby any trade secret that is Material Intellectual Property may
      become publicly available or otherwise unprotectable.

     

    (e) Such
      Loan
      Party (either itself or through licensees) shall not do any act that knowingly
      uses any Material Intellectual Property to infringe the intellectual property
      rights of any other Person.

     

    (f) Such
      Loan
      Party shall notify Lender immediately if it knows, or has reason to know, that
      any application or registration relating to any Material Intellectual Property
      may become forfeited, abandoned or dedicated to the public, or of any adverse
      determination or development (including the institution of, or any such
      determination or development in, any proceeding in the United States Patent
      and
      Trademark Office, the United States Copyright Office or any court or tribunal
      in
      any country) regarding such Loan Party’s ownership of, right to use, interest
      in, or the validity of, any Material Intellectual Property or such Loan Party’s
      right to register the same or to own and maintain the same.

     

    (g) Whenever
      such Loan Party, either by itself or through any agent, licensee or designee,
      shall file an application for the registration of any Intellectual Property
      with
      the United States Patent and Trademark Office, the United States Copyright
      Office or any similar office or agency within or outside the United States,
      such
      Loan Party shall report such filing to Lender within five Business Days after
      the last day of the fiscal quarter in which such filing occurs.  Upon
      request of Lender, such Loan Party shall execute and deliver, and have recorded,
      all agreements, instruments, documents and papers as Lender may request to
      evidence Lender’s security interest in any Copyright, Patent or Trademark and
      the goodwill and general intangibles of such Loan Party relating thereto or
      represented thereby.

     

    (h) Such
      Loan
      Party shall take all reasonable actions necessary or requested by Lender,
      including in any proceeding before the United States Patent and Trademark
      Office, the United States Copyright Office or any similar office or agency,
      to
      maintain and pursue each application (and to obtain the relevant registration)
      and to maintain each registration of any Copyright, Trademark or Patent that
      is
      Material Intellectual Property, including filing of applications for renewal,
      affidavits of use, affidavits of incontestability and opposition and
      interference and cancellation proceedings.

     

    (i) In
      the
      event that any Material Intellectual Property is infringed upon or
      misappropriated or diluted by a third party, such Loan Party shall notify Lender
      promptly after

     

     

     

    
      
        
        

      

      
        18

        
          

        

      

      
        
        

      

    

     

     

    such
      Loan
      Party learns thereof.  Such Loan Party shall take appropriate action
      in response to such infringement, misappropriation of dilution, including
      promptly bringing suit for infringement, misappropriation or dilution and to
      recover all damages for such infringement, misappropriation of dilution, and
      shall take such other actions as may be appropriate in its reasonable judgment
      under the circumstances to protect such Material Intellectual
      Property.

     

    (j) Unless
      otherwise agreed to by Lender, such Loan Party shall execute and deliver to
      Lender for filing in (i) the United States Copyright Office a short-form
      copyright security agreement in form and substance acceptable to Lender,
      (ii) in the United States Patent and Trademark Office a short-form patent
      security agreement in form and substance acceptable to Lender and (iii) the
      United States Patent and Trademark Office a short-form trademark security
      agreement in form and substance acceptable to Lender.

     

    
      	
            	
              Section
                4.9  

            	
              Vehicles

            


    

     

    Upon
      the
      request of Lender, on or before the date of this Agreement and within ten (10)
      days after the date of acquisition of any Vehicle acquired after the date
      hereof, such Loan Party shall execute a short-form motor vehicle security
      agreement, in form and substance acceptable to Lender, specifically describing
      each Vehicle owned by such Loan Party.  In addition, upon the request
      of Lender, within 30 days after the date of such request and, with respect
      to
      any Vehicle acquired by such Loan Party subsequent to the date of any such
      request, within 30 days after the date of acquisition thereof, such Loan Party
      shall (i) file all applications for certificates of title or ownership
      indicating Lender’s first priority security interest in the Vehicle covered by
      such certificate and any other necessary documentation, in each office in each
      jurisdiction that Lender shall deem advisable to perfect its security interests
      in the Vehicles.

     

    
      	
            	
              Section
                4.10  

            	
              Notice
                of Commercial Tort Claims

            


    

     

    Such
      Loan
      Party agrees that, if it shall acquire any interest in any Commercial Tort
      Claim
      (whether from another Person or because such Commercial Tort Claim shall have
      come into existence), (i) such Loan Party shall, immediately upon such
      acquisition, deliver to Lender, in each case in form and substance satisfactory
      to Lender, a notice of the existence and nature of such Commercial Tort Claim
      and deliver a supplement to Schedule 8 containing a
      specific description of such Commercial Tort Claim, certified by such Loan
      Party
      as true, correct and complete, (ii) the provision of Section
      2.1 shall
      apply to such
      Commercial Tort Claim (and the Loan Parties authorize Lender to supplement
      such
      schedule with a description of such Commercial Tort Claim if such Loan Party
      fails to deliver the supplement described in clause (i)) and
      (iii) such Loan Party shall execute and deliver to Lender, in each case in
      form and substance satisfactory to Lender, any certificate, agreement and other
      document, and take all other action, deemed by Lender to be reasonably necessary
      or appropriate for Lender to obtain a first-priority, perfected security
      interest in all such Commercial Tort Claims.  Any supplement to Schedule 8 delivered pursuant
      to this Section
      4.10 shall
      become part of Schedule 8
for all purposes
      hereunder other than, absent a written consent of
      Lender, for purpose of the representations and warranties set forth in Section
      3.9.

     

     

     

    
      
        
        

      

      
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    ARTICLE
      V    Remedial
      Provisions

     

    Section
      5.1 Code
      and Other Remedies

     

    During
      the continuance of a Forbearance Default, Lender may exercise, in addition
      to
      all other rights and remedies granted to Lender in this Agreement and in any
      other instrument or agreement securing, evidencing or relating to the Secured
      Obligations, all rights and remedies of a secured party under the UCC or any
      other applicable Law.  Without limiting the generality of the
      foregoing, Lender, without demand of performance or other demand, presentment,
      protest, advertisement or notice of any kind (except any notice required by
      Law
      referred to below) to or upon any Loan Party or any other Person (all and each
      of which demands, defenses, advertisements and notices are hereby waived),
      may
      in such circumstances forthwith collect, receive, appropriate and realize upon
      any Collateral, and may forthwith sell, lease, assign, give option or options
      to
      purchase, or otherwise dispose of and deliver any Collateral (or contract to
      do
      any of the foregoing), in one or more parcels at public or private sale or
      sales, at any exchange, broker’s board or office of Lender or elsewhere upon
      such terms and conditions as it may deem advisable and at such prices as it
      may
      deem best, for cash or on credit or for future delivery without assumption
      of
      any credit risk.  Lender shall have the right upon any such public
      sale or sales, and, to the extent permitted by Law, upon any such private sale
      or sales, to purchase the whole or any part of the Collateral so sold, free
      of
      any right or equity of redemption in any Loan Party, which right or equity
      is
      hereby waived and released.  Each Loan Party further agrees, at
      Lender’s request, to assemble the Collateral and make it available to Lender at
      places that Lender shall reasonably select, whether at such Loan Party’s
      premises or elsewhere.  Lender shall apply the net proceeds of any
      action taken by it pursuant to this Section
      5.1, after deducting all reasonable
      costs and expenses of every kind incurred in connection therewith or incidental
      to the care or safekeeping of any Collateral or in any way relating to the
      Collateral or the rights of Lender hereunder, including reasonable attorneys’
fees and disbursements, to the payment in whole or in part of the Secured
      Obligations, in such order as the Loan Documents shall prescribe (or if no
      such
      order is prescribed therein, then in such order as Lender may elect), and only
      after such application and after the payment by Lender of any other amount
      required by any provision of Law, need Lender account for the surplus, if any,
      to any Loan Party.  To the extent permitted by applicable Law, each
      Loan Party waives all claims, damages and demands it may acquire against Lender
      arising out of the exercise by them of any rights hereunder.  If any
      notice of a proposed sale or other disposition of Collateral shall be required
      by Law, such notice shall be deemed reasonable and proper if given at least
      10
      days before such sale or other disposition.

     

    Section
      5.2 Accounts
      and Payments in Respect of General Intangibles

     

    (a)    If
      required by Lender in writing at any time during the continuance of a
      Forbearance Default, each Loan Party shall cause all payment of Accounts or
      payment in respect of General Intangibles to be directed to a Cash Collateral
      Account, and if collected by any Loan Party, each such payment shall be
      forthwith deposited by such Loan Party in the exact form received, duly indorsed
      by such Loan Party to Lender if required, in a Cash Collateral
      Account.  Until so turned over, each such payment shall be held by
      such Loan Party in trust for Lender, segregated from other funds of such Loan
      Party.  Each such deposit of Proceeds of Accounts and payments in
      respect of General Intangibles shall be accompanied by a report identifying
      in
      reasonable detail the nature and source of the payments included in the
      deposit.

     

     

     

    
      
        
        

      

      
        20

        
          

        

      

      
        
        

      

    

     

    (b)    At
      Lender’s request in writing, during the continuance of a Forbearance Default,
      each Loan Party shall deliver to Lender all original and other documents
      evidencing, and relating to, the agreements and transactions that gave rise
      to
      the Accounts or payments in respect of General Intangibles, including all
      original orders, invoices and shipping receipts.

     

    (c)    Lender
      may, without notice, at any time during the continuance of a Forbearance
      Default, limit or terminate the authority of a Loan Party to collect its
      Accounts or amounts due under General Intangibles or any thereof.

     

    (d)    Lender
      in
      its own name or in the name of others may at any time during the continuance
      of
      a Forbearance Default communicate with Account Debtors to verify with them
      to
      Lender’s satisfaction the existence, amount and terms of any Account or amounts
      due under any General Intangible.

     

    (e)    Upon
      the
      request of Lender in writing at any time after the occurrence of a
      Forbearance  Default, each Loan Party shall notify Account Debtors
      that the Accounts or General Intangibles have been collaterally assigned to
      Lender and that payments in respect thereof shall be made directly to Lender
      or
      to a Cash Collateral Account.  In addition, Lender may at any time
      during the continuance of a Forbearance Default enforce such Loan Party’s rights
      against such Account Debtors and obligors of General Intangibles.

     

    (f)    Anything
      herein to the contrary notwithstanding, each Loan Party shall remain liable
      under each of the Accounts and payments in respect of General Intangibles to
      observe and perform all the conditions and obligations to be observed and
      performed by it thereunder, all in accordance with the terms of any agreement
      giving rise thereto.  Lender shall not have any obligation or
      liability under any agreement giving rise to an Account or a payment in respect
      of a General Intangible by reason of or arising out of this Agreement or the
      receipt by Lender of any payment relating thereto, nor shall Lender be obligated
      in any manner to perform any obligation of any Loan Party under or pursuant
      to
      any agreement giving rise to an Account or a payment in respect of a General
      Intangible, to make any payment, to make any inquiry as to the nature or the
      sufficiency of any payment received by it or as to the sufficiency of any
      performance by any party thereunder, to present or file any claim, to take
      any
      action to enforce any performance or to collect the payment of any amounts
      that
      may have been assigned to it or to which it may be entitled at any time or
      times.

     

    
      	
            	
              Section
                5.3  

            	
              Pledged
                Collateral

            


    

     

    (a)    During
      the continuance of a Forbearance Default, upon notice by Lender to the relevant
      Loan Party or Loan Parties, (i) Lender shall have the right to receive any
      Proceeds of the Pledged Collateral and make application thereof to the Secured
      Obligations in the order set forth in the Loan Documents (or if no such order
      is
      set forth therein, then in such order as Lender may elect) and (ii) Lender
      or its nominee may exercise (A) any voting, consent, corporate and other
      right pertaining to the Pledged Collateral at any meeting of shareholders,
      partners or members, as the case may be, of the relevant issuer or issuers
      of
      Pledged Collateral or otherwise and (B) any right of conversion, exchange
      and subscription and any other right, privilege or option pertaining to the
      Pledged Collateral as if it were the absolute owner thereof (including the
      right
      to exchange at its discretion any of the Pledged Collateral upon the merger,
      consolidation, reorganization,

     

     

     

    
      
        
        

      

      
        21

        
          

        

      

      
        
        

      

    

     

     

    recapitalization
      or other fundamental change in the corporate structure of any issuer of Pledged
      Collateral, the right to deposit and deliver any Pledged Collateral with any
      committee, depositary, transfer agent, registrar or other designated agency
      upon
      such terms and conditions as Lender may determine), all without liability except
      to account for property actually received by it; provided, however, that Lender
      shall have no duty to any Loan Party to exercise any such right, privilege
      or
      option and shall not be responsible for any failure to do so or delay in so
      doing.

     

    (b)    In
      order
      to permit Lender to exercise the voting and other consensual rights that they
      may be entitled to exercise pursuant hereto and to receive all dividends and
      other distributions that they may be entitled to receive hereunder,
      (i) each Loan Party shall, promptly execute and deliver (or cause to be
      executed and delivered) to Lender all such proxies, dividend payment orders
      and
      other instruments as Lender may from time to time reasonably request and
      (ii) without limiting the effect of clause (i) above, such Loan Party
      hereby grants to Lender an irrevocable proxy to vote all or any part of the
      Pledged Collateral and to exercise all other rights, powers, privileges and
      remedies to which a holder of the Pledged Collateral would be entitled
      (including giving or withholding written consents of shareholders, partners
      or
      members, as the case may be, calling special meetings of shareholders, partners
      or members, as the case may be, and voting at such meetings), which proxy shall
      be effective, automatically and without the necessity of any action (including
      any transfer of any Pledged Collateral on the record books of the issuer
      thereof) by any other Person (including the issuer of such Pledged Collateral
      or
      any officer or agent thereof) during the continuance of an Event of Default
      and
      which proxy shall only terminate upon the payment in full of the Secured
      Obligations.

     

    (c)    Each
      Loan
      Party hereby expressly authorizes and instructs each issuer of any Pledged
      Collateral pledged hereunder by such Loan Party to (i) comply with any
      instruction received by it from Lender in writing that (A) states that a
      Forbearance Default has occurred and is continuing and (B) is otherwise in
      accordance with the terms of this Agreement, without any other or further
      instructions from such Loan Party, and each Loan Party agrees that such issuer
      shall be fully protected in so complying and (ii)  unless otherwise
      expressly permitted hereby, pay any dividend or other payment with respect
      to
      the Pledged Collateral directly to Lender.

     

    
      	
            	
              Section
                5.4  

            	
              Proceeds
                to be Turned
                Over To Lender

            


    

     

    All
      Proceeds received by Lender hereunder during the continuance of a Forbearance
      Default shall be held by Lender in a Cash Collateral Account.  All
      Proceeds while held by Lender in a Cash Collateral Account (or by such Loan
      Party in trust for Lender) shall continue to be held as collateral security
      for
      the Secured Obligations and shall not constitute payment thereof until applied
      to the payment of the Secured Obligations.

     

    
      	
            	
              Section
                5.5  

            	
              Sale
                of Pledged Collateral

            


    

     

    (a)    Each
      Loan
      Party recognizes that Lender may be unable to effect a public sale of any
      Pledged Collateral by reason of certain prohibitions contained in the Securities
      Act and applicable state securities laws or otherwise or may determine that
      a
      public sale is impracticable or not commercially reasonable and, accordingly,
      may resort to one or more private sales thereof to a restricted group of
      purchasers that shall be obliged to agree, among other things, to
      acquire

     

     

     

    
      
        
        

      

      
        22

        
          

        

      

      
        
        

      

    

     

     

    such
      securities for their own account for investment and not with a view to the
      distribution or resale thereof.  Each Loan Party acknowledges and
      agrees that any such private sale may result in prices and other terms less
      favorable than if such sale were a public sale and, notwithstanding such
      circumstances, agrees that any such private sale shall be deemed to have been
      made in a commercially reasonable manner, provided that such deposition is
      in
      compliance with the Uniform Commercial Code.  Lender shall be under no
      obligation to delay a sale of any Pledged Collateral for the period of time
      necessary to permit the issuer thereof to register such securities for public
      sale under the Securities Act, or under applicable state securities laws, even
      if such issuer would agree to do so.

     

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

     

    
      	
            	
              Section
                5.6  

            	
              Deficiency

            


    

     

    Each
      Loan
      Party shall remain liable for any deficiency if the proceeds of any sale or
      other disposition of the Collateral are insufficient to pay the Secured
      Obligations and the reasonable fees and disbursements of any attorney employed
      by Lender to collect such deficiency.

     

    ARTICLE
      VI    Lender

     

    
      	
            	
              Section
                6.1  

            	
              Lender’s
                Appointment as
                Attorney-in-Fact

            


    

     

    (a)    Each
      Loan
      Party hereby irrevocably constitutes and appoints Lender and any officer or
      agent thereof, with full power of substitution, as its true and lawful
      attorney-in-fact with full irrevocable power and authority in the place and
      stead of such Loan Party and in the name of such Loan Party or in its own name,
      for the purpose of carrying out the terms of this Agreement, to take any
      appropriate action and to execute any document or instrument that may be
      necessary or desirable to accomplish the purposes of this Agreement, and,
      without limiting the generality of the foregoing, each Loan Party hereby gives
      Lender the power and right, on behalf of such Loan Party, upon notice to or
      assent by such Loan Party, to do any of the following:

     

    (i)    in
      the
      name of such Loan Party or its own name, or otherwise, take possession of and
      indorse and collect any check, draft, note, acceptance or other instrument
      for
      the payment of moneys due under any Account or General Intangible or with
      respect to any other Collateral and file any claim or take any other action
      or
      proceeding in any court of law or equity or otherwise deemed appropriate by
      Lender for the purpose of collecting any such moneys due under any Account
      or
      General Intangible or with respect to any other Collateral whenever
      payable;

     

     

    
      
        
        

      

      
        23

        
          

        

      

      
        
        

      

    

     

     

    (ii)    in
      the
      case of any Intellectual Property, execute and deliver, and have recorded,
      any
      agreement, instrument, document or paper as Lender may request to evidence
      Lender’s security interest in such Intellectual Property and the goodwill and
      General Intangibles of such Loan Party relating thereto or represented
      thereby;

     

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

     

    (iv)    execute,
      in connection with any sale provided for in Section
      5.1 or Section
      5.5, any endorsement, assignment or other instrument of conveyance
      or
      transfer with respect to the Collateral; or

     

    (v)    (A) direct
      any party liable for any payment under any Collateral to make payment of any
      moneys due or to become due thereunder directly to Lender or as Lender shall
      direct, (B) ask or demand for, collect, and receive payment of and receipt
      for, any moneys, claims and other amounts due or to become due at any time
      in
      respect of or arising out of any Collateral, (C) sign and indorse any
      invoice, freight or express bill, bill of lading, storage or warehouse receipt,
      draft against debtors, assignment, verification, notice and other document
      in
      connection with any Collateral, (D) commence and prosecute any suit, action
      or proceeding at law or in equity in any court of competent jurisdiction to
      collect any Collateral and to enforce any other right in respect of any
      Collateral, (E) defend any suit, action or proceeding brought against such
      Loan Party with respect to any Collateral, (F) settle, compromise or adjust
      any such suit, action or proceeding and, in connection therewith, give such
      discharges or releases as Lender may deem appropriate, (G) assign any
      Copyright, Patent or Trademark (along with the goodwill of the business to
      which
      any such Trademark pertains) throughout the world for such term or terms, on
      such conditions, and in such manner as Lender shall in its sole discretion
      determine, including the execution and filing of any document necessary to
      effectuate or record such assignment and (H) generally, sell, transfer,
      pledge and make any agreement with respect to or otherwise deal with any
      Collateral as fully and completely as though Lender was the absolute owner
      thereof for all purposes, and do, at Lender’s option and such Loan Party’s
      expense, at any time, or from time to time, all acts and things that Lender
      deems necessary to protect, preserve or realize upon the Collateral and Lender’s
      security interests therein and to effect the intent of this Agreement, all
      as
      fully and effectively as such Loan Party might do.

     

    (b)    If
      any
      Loan Party fails to perform or comply with any of its agreements contained
      herein, Lender, at its option, but without any obligation so to do, may perform
      or comply, or otherwise cause performance or compliance, with such
      agreement.

     

    (c)    The
      expenses of Lender incurred in connection with actions undertaken as provided
      in
      this Section
      6.1, together with
      interest thereon at a rate per annum equal to the highest rate per annum at
      which interest would then be payable on any past due amount under any Credit
      Document from the date of payment by Lender to the date reimbursed by the
      relevant Loan Party, shall be payable by such Loan Party to Lender on
      demand.

     

     

    
      
        
        

      

      
        24

        
          

        

      

      
        
        

      

    

     

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

     

    
      	
            	
              Section
                6.2  

            	
              Duty
                of Lender

            


    

     

    Lender’s
      sole duty with respect to the custody, safekeeping and physical preservation
      of
      the Collateral in its possession shall be to deal with it in the same manner
      as
      Lender deals with similar property for its own account.  Neither
      Lender, nor any of its respective officers, directors, employees or agents
      shall
      be liable for failure to demand, collect or realize upon any 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 Loan Party or any other Person
      or to take any other action whatsoever with regard to any
      Collateral.  The powers conferred on Lender hereunder are solely to
      protect Lender’s interest in the Collateral and shall not impose any duty upon
      Lender to exercise any such powers.  Lender shall be accountable only
      for amounts that Lender actually receives as a result of the exercise of such
      powers, and neither Lender nor any of Lender’s officers, directors, employees or
      agents shall be responsible to any Loan Party for any act or failure to act
      hereunder, except for Lender’s gross negligence or willful
      misconduct.

     

    
      	
            	
              Section
                6.3  

            	
              Financing
                Statements

            


    

     

     Each
      Loan Party hereby
      authorizes Lender to file, and if requested will deliver to Lender, all
      financing statements and other documents and take such other actions as may
      from
      time to time be requested by Lender in order to maintain a first perfected
      security interest in and, if applicable, control of, the
      Collateral.  Any financing statement filed by Lender may be filed in
      any filing office in any UCC jurisdiction and may (i) indicate the Collateral
      (1) as all assets of each Loan Party or words of similar effect, regardless
      of
      whether any particular asset comprised in the Collateral falls within the scope
      of Article 9 of the UCC or such jurisdiction, or (2) by any other description
      which reasonably approximates the description contained in this Agreement,
      and
      (ii) contain any other information required by part 5 of Article 9 of the UCC
      for the sufficiency or filing office acceptance of any financing statement
      or
      amendment, including (A) whether any Loan Party is an organization, the type
      of
      organization and any organization identification number issued to each Loan
      Party and (B) in the case of a financing statement filed as a fixture filing
      or
      indicating Collateral as as-extracted collateral or timber to be cut, a
      sufficient description of real property to which the Collateral
      relates.  Each Loan Party also agrees to furnish any such information
      to Lender promptly upon request.  Each Loan Party also ratifies its
      authorization for Lender to have filed in any UCC jurisdiction any initial
      financing statements or amendments thereto if filed prior to the date
      hereof.

     

    ARTICLE
      VII   Miscellaneous

     

    Section
      7.1 Amendments
      in Writing

     

    None
      of
      the terms or provisions of this Agreement may be waived, amended, restated,
      supplemented or otherwise modified without the written consent of Lender and
      each Loan Party.

     

     

    
      
        
        

      

      
        25

        
          

        

      

      
        
        

      

    

     

     

    Section
      7.2 Notices

    


    All
      communications under this Agreement
      shall be in writing and shall be sent by facsimile or by a nationally recognized
      overnight delivery service (i) if to Lender, at the address set forth below
      Lender’s signature to this Agreement, or at such other address as may have been
      furnished in writing to Borrower, by Lender; and (ii) if to Borrower or any
      other Loan Party, at the address set forth below Borrower’s signature to this
      Agreement, or at such other address as may have been furnished in writing to
      Lender by Borrower.  Any notice so addressed and sent by telecopier
      shall be deemed to be given when confirmed, and any notice sent by nationally
      recognized overnight delivery service shall be deemed to be given the next
      day
      after the same is delivered to such carrier.

    


    Section
      7.3 No
      Waiver by Course of Conduct; Cumulative
      Remedies

     

    Lender
      shall not by any act (except by a written instrument pursuant to Section
      7.1), delay, indulgence, omission or otherwise be deemed to have
      waived any right or remedy hereunder or to have acquiesced in any Event of
      Default.  No failure to exercise, nor any delay in exercising, on the
      part of Lender, any right, power or privilege hereunder shall operate as a
      waiver thereof.  No single or partial exercise of any right, power or
      privilege hereunder shall preclude any other or further exercise thereof or
      the
      exercise of any other right, power or privilege.  A waiver by Lender
      of any right or remedy hereunder on any one occasion shall not be construed
      as a
      bar to any right or remedy that Lender would otherwise have on any future
      occasion.  The rights and remedies herein provided are cumulative, may
      be exercised singly or concurrently and are not exclusive of any other rights
      or
      remedies provided by Law.

     

    Section
      7.4 Successors
      and Assigns

     

    This
      Agreement shall be binding upon the successors and assigns of Borrower and
      each
      other Loan Party and shall inure to the benefit of Lender and its respective
      successors and assigns; provided, however,
      that no Loan Party
      may assign, transfer or delegate any of its rights or obligations under this
      Agreement without the prior written consent of Lender, it being acknowledged,
      however, that a merger or combination of Borrower or any Loan Party with
      Borrower or any Loan Party will not be deemed to be a prohibited assignment,
      transfer or delegation.

     

    Section
      7.5 Counterparts

     

    This
      Agreement may be executed by one or more of the parties to this Agreement on
      any
      number of separate counterparts (including by telecopy), each of which when
      so
      executed shall be deemed to be an original and all of which taken together
      shall
      constitute one and the same agreement.  Signature pages may be
      detached from multiple counterparts and attached to a single counterpart so
      that
      all signature pages are attached to the same document.  Delivery of an
      executed counterpart by telecopy shall be effective as delivery of a manually
      executed counterpart.

     

     

     

    
      
        
        

      

      
        26

        
          

        

      

      
        
        

      

    

     

    Section
      7.6 Severability

     

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

     

    Section
      7.7 Section
      Headings

     

    The
      Article and Section titles contained in this Agreement are, and shall be,
      without substantive meaning or content of any kind whatsoever and are not part
      of the agreement of the parties hereto.

     

    Section
      7.8 Entire
      Agreement

     

    This
      Agreement together with the other Loan Documents represents the entire agreement
      of the parties and supersedes all prior agreements and understandings relating
      to the subject matter hereof.

     

    Section
      7.9 Governing
      Law

     

    This
      agreement and the rights and obligations of the parties hereto shall be governed
      by, and construed and interpreted in accordance with, the law of the State
      of
      Ohio, without regard to its conflict of law principles.

     

    Section
      7.10 AdditionalLoan
      Parties

     

    Borrower
      hereby agrees and covenants that it will cause each of Borrower’s Subsidiaries
      that are not a signatory hereto on the date of this Agreement to execute and
      deliver to Lender a Joinder Agreement in form and substance acceptable to Lender
      and shall thereafter for all purposes be a party hereto and have the same
      rights, benefits and obligations as a Loan Party party hereto on the date of
      this Agreement.

     

    Section
      7.11 Reinstatement

     

    Each
      Loan
      Party further agrees that, if any payment made by any Loan Party or other Person
      and applied to the Secured Obligations is at any time annulled, avoided, set
      aside, rescinded, invalidated, declared to be fraudulent or preferential or
      otherwise required to be refunded or repaid, or the proceeds of Collateral
      are
      required to be returned by Lender to such Loan Party, its estate, trustee,
      receiver or any other party, including any Loan Party, under any bankruptcy
      law,
      state or federal law, common law or equitable cause, then, to the extent of
      such
      payment or repayment, any Lien or other Collateral securing such liability
      shall
      be and remain in full force and effect, as fully as if such payment had never
      been made or, if prior thereto the Lien granted hereby or other Collateral
      securing such liability hereunder shall have been released or terminated by
      virtue of such cancellation or surrender, such Lien or other Collateral shall
      be
      reinstated in full force and effect, and such prior cancellation or surrender
      shall not diminish, 

     

     

     

    27

     

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

     

     

    release,
      discharge, impair or otherwise affect any
      Lien or other Collateral securing the obligations of any Loan Party in respect
      of the amount of such payment.
       

      


       

      [Signature
        Page Follows]

       

    

     

     

     

     

     

     

    28

     

     

     

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

     

     

    In
      witness whereof, the undersigned has caused this Security Agreement to be duly
      executed and delivered as of the date first above written.

     

    TRIBECA
      LENDING CORP.

     

    By:
/s/
      Alexander Gordon
      Jardin

    Name:
      Alexander Gordon
      Jardin

    Title:
      Chief Executive
      Officer

     

    Address:  101
      Hudson St., 25th
      Floor

    Jersey
      City, N.J.  07302

    Fax
      Number: (201) 604-4400

    Attn:
      General Counsel

    


    With
      a
      copy to:

    


    Kramer
      Levin Naftalis & Frankel LLP

    1177
      Avenue of the Americas

    New
      York,
      NY   10036

    Fax:
      (212) 715-8346

    Attn:
      J.
      Michael Mayerfeld

    


     

    Each
      Loan Party listed on Schedule 1 attached
      hereto:

    


    By:
/s/
      Alexander Gordon
      Jardin


    Name:
      Alexander Gordon
      Jardin

                    
      Title: Chief Executive Officer,  as an authorized officer

                      
      of, and on behalf of, each Loan Party listed on

                               Schedule
      1 attached
      hereto


     

                                   Address:
      same address as
      for Tribeca Lending Corp.

     


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    


    


    


    ACCEPTED
      AND AGREED

    as
      of the
      date first above written:

     

    THE
      HUNTINGTON NATIONAL
      BANK,

    successor
      by merger to Sky Bank

     

    By:
/s/
      Alan D. Seitz

       Name:
      Alan D.
      Seitz

       Title:
      Senior Vice
      President

     

    Address:
      The Huntington National Bank

     

    41
      South
      High Street

     

    Columbus,
      Ohio 43215

     

    Attn:
      Special Assets

     

    Fax:
      (614) 480-3795