- 2 -other agreements, documents and instruments now or at any time hereafter executed and/ordelivered by Borrower, Debtor or any Obligor in connection with the Third Amended and Restated LoanAgreement, the Original Loan Agreement, the First Amended and Restated Loan Agreement, the AmendedFirst Amended and Restated Loan Agreement and the Second Amended and Restated Loan Agreementexcluding any Swap Agreements, as the same now exist or may hereafter be amended, modified,supplemented, extended, renewed, restated or replaced.     1.5 “**Guaranteed Obligations**” shall have the meaning given to it in the Guarantee.     1.6 “**Information Certificate**” shall mean the Information Certificate of Debtor constitutingExhibit A hereto containing material information with respect to Debtor, its business andassets provided by or on behalf of Debtor to Lender and US Collateral Agent in connection with thepreparation of this Agreement and the other Financing Agreements and the financing arrangementsprovided for herein.     1.7 “**Inventory**” shall mean all of Debtor’s now owned and hereafter existing or acquired goods,wherever located, which (a) are leased by Debtor as lessor; (b) are held by Debtor for sale orlease or to be furnished under a contract of service; (c) are furnished by Debtor under a contractof service; or (d) consist of raw materials, work in process, finished goods or materials used orconsumed in its business.     1.8 “**Obligor**” shall mean any guarantor, endorser, acceptor, surety or other person liable onor with respect to the Obligations or who is the owner of any property which is security for theObligations, other than Borrower and Debtor.     1.9 “**Receivables**” shall mean all of the following now owned or hereafter arising or acquiredproperty of Debtor: (a) all Accounts; (b) all interest, fees, late charges, penalties, collectionfees and other amounts due or to become due or otherwise payable in connection with any Account;(c) all payment intangibles of Debtor and other contract rights, chattel paper, instruments, notes,and other forms of obligations owing to Debtor, whether from the sale and lease of goods or otherproperty, licensing of any property (including Intellectual Property or other general intangibles),rendition of services or from loans or advances by Debtor or to or for the benefit of any thirdperson (including loans or advances to any affiliates or subsidiaries of Debtor) or otherwiseassociated with any Accounts, Inventory or general intangibles of Debtor (including choses inaction, causes of action, tax refunds, tax refund claims, any funds which may become payable toDebtor in connection with the termination of any employee benefit plan and any other amountspayable to Debtor from any employee benefit plan, rights and claims against carriers and shippers,rights to indemnification, business interruption insurance and proceeds thereof, casualty or anysimilar types of insurance and any proceeds thereof and proceeds of insurance covering the lives ofemployees on which Debtor is a beneficiary).     1.10 “**Third Amended and Restated Loan Agreement**” shall mean the Third Amended and RestatedLoan Agreement dated June 23, 2009 by and between Borrower, Obligors, Debtor, US Collateral Agentand Lender, as amended, modified, supplemented, extended, renewed, restated or replaced from timeto time.

 

- 3 -**SECTION 2.****GRANT OF SECURITY INTEREST**     2.1 **Grant of Security Interest**. To secure payment and performance of all GuaranteedObligations, Debtor hereby grants to US Collateral Agent for and on behalf of the Secured Parties acontinuing security interest in, a lien upon, and a right of set off against, and hereby assigns toUS Collateral Agent for and on behalf of the Secured Parties as security, all personal property andinterests in property and fixtures of Debtor, whether now owned or hereafter acquired or existing,and wherever located (together with all other collateral security for the Guaranteed Obligations atany time granted to or held or acquired by US Collateral Agent, collectively, the “**Collateral**”)including: (a) all Accounts;  (b) all general intangibles, including all Intellectual Property;  (c) all goods, including Inventory and Equipment;  (d) all chattel paper (including all tangible and electronic chattel paper);  (e) all instruments (including all promissory notes);  (f) all documents;  (g) all deposit accounts;  (h) all letters of credit, banker’s acceptances and similar instruments andincluding all letter-of-credit rights;  (i) all supporting obligations and all present and future liens, securityinterests, rights, remedies, title and interest in, to and in respect of Receivablesand other Collateral, including (i) rights and remedies under or relating toguaranties, contracts of suretyship, letters of credit and credit and other insurancerelated to the Collateral, (ii) rights of stoppage in transit, replevin, repossession,reclamation and other rights and remedies of an unpaid vendor, lienor or secured party,(iii) goods described in invoices, documents, contracts or instruments with respect to,or otherwise representing or evidencing, Receivables or other Collateral, includingreturned, repossessed and reclaimed goods, and (iv) deposits by and property of accountdebtors or other persons securing the obligations of account debtors;  (j) all (i) investment property (including securities, whether certificated oruncertificated, securities accounts, security entitlements, commodity contracts orcommodity accounts) and (ii) monies, credit balances, deposits and other property ofDebtor now or hereafter held or received by or in transit to Lender, US CollateralAgent or its affiliates or at any other depository or other institution from or for theaccount of Debtor, whether for safekeeping, pledge, custody, transmission, collectionor otherwise;

 

- 4 - (k) all commercial tort claims, including those identified in the InformationCertificate;  (l) to the extent not otherwise described above, all Receivables;  (m) all Records; and  (n) all products and proceeds of the foregoing, in any form, including insuranceproceeds and all claims against third parties for loss or damage to or destruction ofor other involuntary conversion of any kind or nature of any or all of the otherCollateral.Notwithstanding the foregoing, the Collateral shall not include any Swap Agreement entered into byDebtor.     2.2 **Perfection of Security Interests**. (a) Debtor irrevocably and unconditionally authorizes US Collateral Agent (or itsagent) to file at any time and from time to time such financing statements with respectto the Collateral naming US Collateral Agent or its designee as the secured party andDebtor as debtor, as US Collateral Agent may require, and including any otherinformation with respect to Debtor or otherwise required by part 5 ofArticle 9 of the UCC of such jurisdiction as US Collateral Agent may determine,together with any amendment and continuations with respect thereto, which authorizationshall apply to all financing statements filed on, prior to or after the date hereof.Debtor hereby ratifies and approves all financing statements naming US Collateral Agentor its designee as secured party and Debtor as debtor with respect to the Collateral(and any amendments with respect to such financing statements) filed by or on behalf ofUS Collateral Agent prior to the date hereof and ratifies and confirms theauthorization of US Collateral Agent to file such financing statements (and amendments,if any). Debtor hereby authorizes US Collateral Agent to adopt on behalf of Debtor anysymbol required for authenticating any electronic filing. In the event that thedescription of the collateral in any financing statement naming US Collateral Agent orits designee as the secured party and Debtor as debtor includes assets and propertiesof Debtor that do not at any time constitute Collateral, whether hereunder, under anyof the other Financing Agreements or otherwise, the filing of such financing statementshall nonetheless be deemed authorized by Debtor to the extent of the Collateralincluded in such description and it shall not render the financing statementineffective as to any of the Collateral or otherwise affect the financing statement asit applies to any of the Collateral. In no event shall Debtor at any time file, orpermit or cause to be filed, any correction statement or termination statement withrespect to any financing statement (or amendment or continuation with respect thereto)naming US Collateral Agent or its designee as secured party and Debtor as debtor.

 

- 5 - (b) Debtor does not have any chattel paper (whether tangible or electronic) orinstruments as of the date hereof, except as set forth in the Information Certificate.In the event that Debtor shall be entitled to or shall receive any chattel paper orinstrument after the date hereof, Debtor shall promptly notify US Collateral Agentthereof in writing. Promptly upon the receipt thereof by or on behalf of Debtor(including by any agent or representative), Debtor shall deliver, or cause to bedelivered to US Collateral Agent, all tangible chattel paper and instruments thatDebtor has or may at any time acquire, accompanied by such instruments of transfer orassignment duly executed in blank as US Collateral Agent may from time to time specify,in each case except as US Collateral Agent may otherwise agree. At US CollateralAgent’s option, Debtor shall, or US Collateral Agent may at any time on behalf ofDebtor, cause the original of any such instrument or chattel paper to be conspicuouslymarked in a form and manner acceptable to US Collateral Agent with the following legendreferring to chattel paper or instruments as applicable: “This [chattelpaper][instrument] is subject to the security interest of Wachovia Capital FinanceCorporation (Central) and any sale, transfer, assignment or encumbrance of this[chattel paper][instrument] violates the rights of such secured party.” (c) In the event that Debtor shall at any time hold or acquire an interest in anyelectronic chattel paper or any “transferable record” (as such term is defined inSection 201 of the Federal Electronic Signatures in Global and NationalCommerce Act or in Section 16 of the Uniform Electronic Transactions Act as ineffect in any relevant jurisdiction), Debtor shall promptly notify US Collateral Agentthereof in writing. Promptly upon US Collateral Agent’s request, Debtor shall take, orcause to be taken, such actions as US Collateral Agent may reasonably request to giveUS Collateral Agent control of such electronic chattel paper under Section9-105 of the UCC and control of such transferable record under Section 201of the Federal Electronic Signatures in Global and National Commerce Act or, as thecase may be, Section 16 of the Uniform Electronic Transactions Act, as ineffect in such jurisdiction. (d) Debtor does not have any deposit accounts as of the date hereof, except as setforth in the Information Certificate. Debtor shall not, directly or indirectly, afterthe date hereof open, establish or maintain any deposit account unless each of thefollowing conditions is satisfied: (i) US Collateral Agent shall have received notless than five (5) Business Days prior written notice of the intention of Debtor toopen or establish such account which notice shall specify in reasonable detail andspecificity acceptable to US Collateral Agent the name of the account, the owner of theaccount, the name and address of the bank at which such account is to be opened orestablished, the individual at such bank with whom Debtor is dealing and the purpose ofthe account, (ii) the bank where such account is opened or maintained shall beacceptable to US Collateral Agent, and (iii) on or before the opening of such depositaccount, Debtor shall as US Collateral Agent may specify either (A) deliver to USCollateral Agent a Deposit Account Control Agreement with respect to such depositaccount duly authorized, executed and delivered by Debtor and the bank at which suchdeposit account is opened and maintained or

 

- 6 -   (B) arrange for US Collateral Agent to become the customer of the bank with respectto the deposit account on terms and conditions acceptable to US Collateral Agent.The terms of this subsection (d) shall not apply to deposit accountsspecifically and exclusively used for payroll, payroll taxes and other employee wageand benefit payments to or for the benefit of Debtor’s salaried employees. (e) Debtor does not own or hold, directly or indirectly, beneficially or as recordowner or both, any investment property, as of the date hereof, or have any investmentaccount, securities account, commodity account or other similar account with any bankor other financial institution or other securities intermediary or commodityintermediary as of the date hereof, in each case except as set forth in the InformationCertificate.          (i) In the event that Debtor shall be entitled to or shall at any time after the date hereofhold or acquire any certificated securities, Debtor shall promptly endorse, assign and deliver thesame to US Collateral Agent, accompanied by such instruments of transfer or assignment dulyexecuted in blank as US Collateral Agent may from time to time specify. If any securities, now orhereafter acquired by Debtor are uncertificated and are issued to Debtor or its nominee directly bythe issuer thereof, Debtor shall immediately notify US Collateral Agent thereof and shall as USCollateral Agent may specify, either (A) cause the issuer to agree to comply with instructions fromUS Collateral Agent as to such securities, without further consent of Debtor or such nominee, or(B) arrange for US Collateral Agent to become the registered owner of the securities.          (ii) Debtor shall not, directly or indirectly, after the date hereof open, establish ormaintain any investment account, securities account, commodity account or any other similar account(other than a deposit account) with any securities intermediary or commodity intermediary unlesseach of the following conditions is satisfied: (A) US Collateral Agent shall have received not lessthan five (5) Business Days prior written notice of the intention of Debtor to open or establishsuch account which notice shall specify in reasonable detail and specificity acceptable to USCollateral Agent the name of the account, the owner of the account, the name and address of thesecurities intermediary or commodity intermediary at which such account is to be opened orestablished, the individual at such intermediary with whom Debtor is dealing and the purpose of theaccount, (B) the securities intermediary or commodity intermediary (as the case may be) where suchaccount is opened or maintained shall be acceptable to US Collateral Agent, and (C) on or beforethe opening of such investment account, securities account or other similar account with asecurities intermediary or commodity intermediary, Debtor shall as US Collateral Agent may specifyeither (1) execute and deliver, and cause to be executed and delivered to US Collateral Agent, anInvestment Property Control Agreement with respect thereto duly authorized, executed and deliveredby Debtor and such securities intermediary or commodity intermediary or (2) arrange for USCollateral Agent to become the entitlement holder with respect to such investment property on termsand conditions acceptable to US Collateral Agent. (f) Debtor is not the beneficiary or otherwise entitled to any right to paymentunder any letter of credit, banker’s acceptance or similar instrument as of the datehereof, except as set forth in the Information Certificate. In the event that Debtor

 

- 7 -   shall be entitled to or shall receive any right to payment under any letter ofcredit, banker’s acceptance or any similar instrument, whether as beneficiarythereof or otherwise after the date hereof, Debtor shall promptly notify USCollateral Agent thereof in writing. Debtor shall immediately, as US CollateralAgent may specify, either (i) deliver, or cause to be delivered to US CollateralAgent, with respect to any such letter of credit, banker’s acceptance or similarinstrument, the written agreement of the issuer and any other nominated personobligated to make any payment in respect thereof (including any confirming ornegotiating bank), in form and substance satisfactory to US Collateral Agent,consenting to the assignment of the proceeds of the letter of credit to USCollateral Agent by Debtor and agreeing to make all payments thereon directly to USCollateral Agent or as US Collateral Agent may otherwise direct or (ii) cause USCollateral Agent to become, at Debtor’s expense, the transferee beneficiary of theletter of credit, banker’s acceptance or similar instrument (as the case may be).  (g) Debtor has no commercial tort claims as of the date hereof, except as set forthin the Information Certificate. In the event that Debtor shall at any time after thedate hereof have any commercial tort claims, Debtor shall promptly notify US CollateralAgent thereof in writing, which notice shall (i) set forth in reasonable detail thebasis for and nature of such commercial tort claim and (ii) include the express grantby Debtor to US Collateral Agent of a security interest in such commercial tort claim(and the proceeds thereof). In the event that such notice does not include such grantof a security interest, the sending thereof by Debtor to US Collateral Agent shall bedeemed to constitute such grant to US Collateral Agent. Upon the sending of suchnotice, any commercial tort claim described therein shall constitute part of theCollateral and shall be deemed included therein. Without limiting the authorization ofUS Collateral Agent provided in Section 2.2(a) hereof or otherwise arising bythe execution by Debtor of this Agreement or any of the other Financing Agreements, USCollateral Agent is hereby irrevocably authorized from time to time and at any time tofile such financing statements naming US Collateral Agent or its designee as securedparty and Debtor as debtor, or any amendments to any financing statements, covering anysuch commercial tort claim as Collateral. In addition, Debtor shall promptly upon USCollateral Agent’s request, execute and deliver, or cause to be executed and delivered,to US Collateral Agent such other agreements, documents and instruments as USCollateral Agent may require in connection with such commercial tort claim.  (h) Debtor does not have any goods, documents of title or other Collateral in thecustody, control or possession of a third party as of the date hereof, except as setforth in the Information Certificate and except for goods located in the United Statesin transit to a location of Debtor permitted herein in the ordinary course of businessof Debtor in the possession of the carrier transporting such goods. In the event thatany goods, documents of title or other Collateral are at any time after the date hereofin the custody, control or possession of any other person not referred to in theInformation Certificate or such carriers, Debtor shall promptly notify US CollateralAgent thereof in writing. Promptly upon US Collateral

 

- 8 -   Agent’s request, Debtor shall deliver to US Collateral Agent a Collateral AccessAgreement duly authorized, executed and delivered by such person and Debtor.  (i) Debtor shall take any other actions reasonably requested by Lender or USCollateral Agent from time to time to cause the attachment, perfection and firstpriority of, and the ability of Lender and US Collateral Agent to enforce, the securityinterest of US Collateral Agent in any and all of the Collateral, including (i)executing, delivering and, where appropriate, filing, financing statements andamendments relating thereto under the UCC or other applicable law, to the extent, ifany, that Debtor’s signature thereon is required therefor, (ii) causing US CollateralAgent’s name to be noted as secured party on any certificate of title for a titled goodif such notation is a condition to attachment, perfection or priority of, or ability ofUS Collateral Agent to enforce, the security interest of US Collateral Agent in suchCollateral, (iii) complying with any provision of any statute, regulation or treaty ofthe United States as to any Collateral if compliance with such provision is a conditionto attachment, perfection or priority of, or ability of US Collateral Agent to enforce,the security interest of US Collateral Agent in such Collateral, (iv) obtaining theconsents and approvals of any governmental authority or third party including anyconsent of any licensor, lessor or other person obligated on Collateral, and taking allactions required by any earlier versions of the UCC or by other law, as applicable inany relevant jurisdiction.**SECTION 3.****REPRESENTATIONS AND WARRANTIES**Debtor hereby represents and warrants to Lender and US Collateral Agent the representations andwarranties set out in Section 7 of the Third Amended and Restated Loan Agreement (whichshall survive the execution and delivery of this Agreement), the truth and accuracy of which are acontinuing condition of the making of Revolving Loans and providing Letter of Credit Accommodationsby Lender to Borrower.**SECTION 4.****AFFIRMATIVE AND NEGATIVE COVENANTS**Debtor is hereby bound by the covenants set out in Section 8 of the Third Amended andRestated Loan Agreement. In addition: (a) Debtor shall enter into its register of charges such particulars regarding thecharge created by this Agreement as are specified in Section 162 of the BVIBusiness Companies Act, 2004 (as the same may be amended from time to time) or anysimilar provision in any statute pursuant to which Debtor is incorporated or existingfrom time to time and submit a copy of such revised register of charges to itsregistered agent in the British Virgin Islands to keep at its registered office in theBritish Virgin Islands; and  (b) Debtor agrees that it shall not grant a charge over its assets and propertiesranking equally or in priority to the charge hereunder granted in favour of Agent.

 

- 9 -**SECTION 5.****EVENTS OF DEFAULT AND REMEDIES**     5.1 **Events of Default**. The occurrence or existence of any Event of Default under theThird Amended and Restated Loan Agreement is referred to herein individually as an “**Event ofDefault**”, and collectively as “**Events of Default**”.     5.2 **Remedies**. (a) At any time an Event of Default exists or has occurred and is continuing,Lender and US Collateral Agent shall have all rights and remedies provided in thisAgreement, the other Financing Agreements, the UCC and other applicable law, all ofwhich rights and remedies may be exercised without notice to or consent by Debtor,Borrower or any Obligor, except as such notice or consent is expressly provided forhereunder or required by applicable law. All rights, remedies and powers granted toLender and US Collateral Agent hereunder, under any of the other Financing Agreements,the UCC or other applicable law, are cumulative, not exclusive and enforceable, inLender’s or US Collateral Agent’s discretion, alternatively, successively, orconcurrently on any one or more occasions, and shall include, without limitation, theright to apply to a court of equity for an injunction to restrain a breach orthreatened breach by Debtor of this Agreement or any of the other Financing Agreements.Lender or US Collateral Agent may, at any time or times, proceed directly againstDebtor, Borrower or any Obligor to collect the Guaranteed Obligations (except under orin connection with any Swap Agreement) without prior recourse to any Obligor, Borroweror any of the Collateral.  (b) Without limiting the foregoing, at any time an Event of Default exists or hasoccurred and is continuing, Lender and US Collateral Agent may, in their discretionand, without limitation:          (i) accelerate the payment of all Guaranteed Obligations (except under or in connection withany Swap Agreement) and demand immediate payment thereof to Lender (provided, that, upon theoccurrence of any Event of Default described in Sections 9.1(g) and 9.1(h) of theThird Amended and Restated Loan Agreement, all Guaranteed Obligations (except under or inconnection with any Swap Agreement) shall automatically become immediately due and payable);          (ii) with or without judicial process or the aid or assistance of others, enter upon anypremises on or in which any of the Collateral may be located and take possession of the Collateralor complete processing, manufacturing and repair of all or any portion of the Collateral;          (iii) require Debtor, at Debtor’s expense, to assemble and make available to Lender and USCollateral Agent any part or all of the Collateral at any place and time designated by Lender orAgent;          (iv) collect, foreclose, receive, appropriate, setoff and realize upon any and all Collateral;

 

- 10 -          (v) remove any or all of the Collateral from any premises on or in which the same may belocated for the purpose of effecting the sale, foreclosure or other disposition thereof or for anyother purpose; and/or          (vi) sell, lease, transfer, assign, deliver or otherwise dispose of any and all Collateral(including entering into contracts with respect thereto, public or private sales at any exchange,broker’s board, at any office of Lender or US Collateral Agent or elsewhere) at such prices orterms as Lender or US Collateral Agent may deem reasonable, for cash, upon credit or for futuredelivery, with Lender or US Collateral Agent having the right to purchase the whole or any part ofthe Collateral at any such public sale, all of the foregoing being free from any right or equity ofredemption of Debtor, which right or equity of redemption is hereby expressly waived and releasedby Debtor.If any of the Collateral is sold or leased by Lender or US Collateral Agent upon credit terms orfor future delivery, the Guaranteed Obligations shall not be reduced as a result thereof untilpayment therefor is finally collected by Lender or US Collateral Agent.If notice of disposition of Collateral is required by law, ten (10) days prior notice by Lender orUS Collateral Agent to Debtor designating the time and place of any public sale or the time afterwhich any private sale or other intended disposition of Collateral is to be made, shall be deemedto be reasonable notice thereof and Debtor waives any other notice.In the event Lender or US Collateral Agent institutes an action to recover any Collateral or seeksrecovery of any Collateral by way of prejudgment remedy, Debtor waives the posting of any bondwhich might otherwise be required. (c) Lender or US Collateral Agent may, at any time or times that an Event ofDefault exists or has occurred and is continuing, enforce Debtor’s rights against anyaccount debtor, secondary obligor or other obligor in respect of any of the Accounts orother Receivables. Without limiting the generality of the foregoing, Lender or USCollateral Agent may at such time or times:          (i) notify any or all account debtors, secondary obligors or other obligors in respect thereofthat the Receivables have been assigned to US Collateral Agent and that US Collateral Agent has asecurity interest therein and Lender or US Collateral Agent may direct any or all account debtors,secondary obligors and other obligors to make payment of Receivables directly to Lender or USCollateral Agent;          (ii) extend the time of payment of, compromise, settle or adjust for cash, credit, return ofmerchandise or otherwise, and upon any terms or conditions, any and all Receivables or otherobligations included in the Collateral and thereby discharge or release the account debtor or anysecondary obligors or other obligors in respect thereof without affecting any of the GuaranteedObligations;          (iii) demand, collect or enforce payment of any Receivables or such other obligations, butwithout any duty to do so, and Lender and US Collateral Agent shall not be liable for their failureto collect or enforce the payment thereof nor for the negligence of its agents or attorneys withrespect thereto; and

 

- 11 -          (iv) take whatever other action Lender or US Collateral Agent may deem necessary or desirablefor the protection of its interests.At any time that an Event of Default exists or has occurred and is continuing, at Lender’s or USCollateral Agent’s request, all invoices and statements sent to any account debtor shall state thatthe Accounts and such other obligations have been assigned to US Collateral Agent and are payabledirectly and only to Lender or US Collateral Agent and Debtor shall deliver to Lender or USCollateral Agent such originals of documents evidencing the sale and delivery of goods or theperformance of services giving rise to any Accounts as Lender or US Collateral Agent may require.In the event any account debtor returns Inventory when an Event of Default exists or has occurredand is continuing, Debtor shall, upon Lender’s or US Collateral Agent’s request, hold the returnedInventory in trust for Lender and US Collateral Agent, segregate all returned Inventory from all ofits other property, dispose of the returned Inventory solely according to Lender’s or US CollateralAgent’s instructions, and not issue any credits, discounts or allowances with respect theretowithout Lender’s or US Collateral Agent’s prior written consent. (d) To the extent that applicable law imposes duties on Lender or US CollateralAgent to exercise remedies in a commercially reasonable manner (which duties cannot bewaived under such law), Debtor acknowledges and agrees that it is not commerciallyunreasonable for Lender or US Collateral Agent:          (i) to fail to incur expenses reasonably deemed significant by Lender or US Collateral Agentto prepare Collateral for disposition or otherwise to complete raw material or work in process intofinished goods or other finished products for disposition;          (ii) to fail to obtain third party consents for access to Collateral to be disposed of, or, ifnot required by other law, to fail to obtain consents of any governmental authority or other thirdparty for the collection or disposition of Collateral to be collected or disposed of;          (iii) to fail to exercise collection remedies against account debtors, secondary obligors orother persons obligated on Collateral or to remove liens or encumbrances on or any adverse claimsagainst Collateral;          (iv) to exercise collection remedies against account debtors and other persons obligated onCollateral directly or through the use of collection agencies and other collection specialists;          (v) to advertise dispositions of Collateral through publications or media of generalcirculation, whether or not the Collateral is of a specialized nature;          (vi) to contact other persons, whether or not in the same business as Debtor for expressionsof interest in acquiring all or any portion of the Collateral;          (vii) to hire one or more professional auctioneers to assist in the disposition of Collateral,whether or not the collateral is of a specialized nature;

 

- 12 -          (viii) to dispose of Collateral by utilizing Internet sites that provide for the auction ofassets of the types included in the Collateral or that have the reasonable capability of doing so,or that match buyers and sellers of assets;          (ix) to dispose of assets in wholesale rather than retail markets;          (x) to disclaim disposition warranties;          (xi) to purchase insurance or credit enhancements to insure Lender and US Collateral Agentagainst risks of loss, collection or disposition of Collateral or to provide to Lender or USCollateral Agent a guaranteed return from the collection or disposition of Collateral; or          (xii) to the extent deemed appropriate by Lender or US Collateral Agent, to obtain theservices of other brokers, investment bankers, consultants and other professionals to assist themin the collection or disposition of any of the Collateral.Debtor acknowledges that the purpose of this Section is to provide non-exhaustive indications ofwhat actions or omissions by Lender or US Collateral Agent would not be commercially unreasonablein Lender’s or US Collateral Agent’s exercise of remedies against the Collateral and that otheractions or omissions by Lender or US Collateral Agent shall not be deemed commercially unreasonablesolely on account of not being indicated in this Section. Without limitation of the foregoing,nothing contained in this Section shall be construed to grant any rights to Debtor or to impose anyduties on Lender or US Collateral Agent that would not have been granted or imposed by thisAgreement or by applicable law in the absence of this Section. (e) For the purpose of enabling Lender or US Collateral Agent to exercise therights and remedies hereunder, Debtor hereby grants to Lender and US Collateral Agent,to the extent assignable, an irrevocable, non-exclusive license (exercisable withoutpayment of royalty or other compensation to Debtor) to use, assign, license orsublicense any of the trademarks, service-marks, trade names, business names, tradestyles, designs, logos and other source of business identifiers and other IntellectualProperty and general intangibles now owned or hereafter acquired by Debtor, whereverthe same maybe located, including in such license reasonable access to all media inwhich any of the licensed items may be recorded or stored and to all computer programsused for the compilation or printout thereof.  (f) Lender may apply the cash proceeds of Collateral actually received by Lender orUS Collateral Agent from any sale, lease, foreclosure or other disposition of theCollateral to payment of the Guaranteed Obligations, in whole or in part and in suchorder as Lender may elect, whether or not then due (except under or in connection withany Swap Agreement). Debtor shall remain liable to Lender and US Collateral Agent forthe payment of any deficiency with interest at the highest rate provided for in theThird Amended and Restated Loan Agreement and all costs and expenses of collection orenforcement, including attorneys’ fees and legal expenses.

 

- 13 -**SECTION 6.** **JURY TRIAL WAIVER; OTHER WAIVERS AND CONSENTS; GOVERNING LAW**     6.1 **Governing Law; Choice of Forum; Service of Process; Jury Trial Waiver**. (a) The validity, interpretation and enforcement of this Agreement and any disputearising out of the relationship between the parties hereto, whether in contract, tort,equity or otherwise, shall be governed by the internal laws of the State of Illinoisbut excluding any principles of conflicts of law or other rule of law that would causethe application of the law of any jurisdiction other than the laws of the State ofIllinois.  (b) Debtor, Lender and US Collateral Agent irrevocably consent and submit to thenon-exclusive jurisdiction of the Circuit Court of Cook County, Illinois and the UnitedStates District Court for the Northern District of Illinois, whichever Lender or USCollateral Agent may elect, and waive any objection based on venue or *forum nonconveniens*with respect to any action instituted therein arising under this Agreementor any of the other Financing Agreements or in any way connected with or related orincidental to the dealings of the parties hereto in respect of this Agreement or any ofthe other Financing Agreements or the transactions related hereto or thereto, in eachcase whether now existing or hereafter arising, and whether in contract, tort, equityor otherwise, and agree that any dispute with respect to any such matters shall beheard only in the courts described above (except that Lender and US Collateral Agentshall have the right to bring any action or proceeding against Debtor or its propertyin the courts of any other jurisdiction which they deem necessary or appropriate inorder to realize on the Collateral or to otherwise enforce their rights against Debtoror its property).  (c) Debtor hereby waives personal service of any and all process upon it andconsents that all such service of process may be made by certified mail (return receiptrequested) directed to its address set forth below and service so made shall be deemedto be completed five (5) days after the same shall have been so deposited in the U.S.mails, or, at Lender’s or US Collateral Agent’s option, by service upon Debtor in anyother manner provided under the rules of any such courts. Within thirty (30) daysafter such service, Debtor shall appear in answer to such process, failing which Debtorshall be deemed in default and judgment may be entered by Lender or US Collateral Agentagainst Debtor for the amount of the claim and other relief requested.  (d) DEBTOR HEREBY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION ORCAUSE OF ACTION (1) ARISING UNDER THIS AGREEMENT OR ANY OF THE OTHER FINANCINGAGREEMENTS OR (2) IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OFDEBTOR, LENDER AND US COLLATERAL AGENT IN RESPECT OF THIS AGREEMENT OR ANY OF THE OTHERFINANCING AGREEMENTS OR THE TRANSACTIONS RELATED

 

- 14 -   HERETO OR THERETO IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, ANDWHETHER IN CONTRACT, TORT, EQUITY OR OTHERWISE. DEBTOR HEREBY AGREES AND CONSENTSTHAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURTTRIAL WITHOUT A JURY AND THAT DEBTOR, LENDER OR US COLLATERAL AGENT MAY FILE ANORIGINAL COUNTERPART OF A COPY OF THIS AGREEMENT WITH ANY COURT AS WRITTEN EVIDENCEOF THE CONSENT OF DEBTOR, LENDER AND US COLLATERAL AGENT TO THE WAIVER OF THEIRRIGHT TO TRIAL BY JURY.  (e) Lender and US Collateral Agent shall not have any liability to Debtor (whetherin tort, contract, equity or otherwise) for losses suffered by Debtor in connectionwith, arising out of, or in any way related to the transactions or relationshipscontemplated by this Agreement, or any act, omission or event occurring in connectionherewith, unless it is determined by a final and non-appealable judgment or court orderbinding on Lender and US Collateral Agent that the losses were the result of acts oromissions of Lender and US Collateral Agent constituting gross negligence or willfulmisconduct. In any such litigation, each of Lender and US Collateral Agent shall beentitled to the benefit of the rebuttable presumption that it acted in good faith andwith the exercise of ordinary care in the performance by it of the terms of thisAgreement and the other Financing Agreements.     6.2 **Waiver of Notices**. Debtor hereby expressly waives demand, presentment, protestand notice of protest and notice of dishonor with respect to any and all instruments and commercialpaper, included in or evidencing any of the Guaranteed Obligations or the Collateral, and any andall other demands and notices of any kind or nature whatsoever with respect to the GuaranteedObligations, the Collateral and this Agreement, except such as are expressly provided for herein.No notice to or demand on Debtor which Lender or US Collateral Agent may elect to give shallentitle Debtor to any other or further notice or demand in the same, similar or othercircumstances.     6.3 **Amendments and Waivers**. Neither this Agreement nor any provision hereof shall beamended, modified, waived or discharged orally or by course of conduct, but only by a writtenagreement signed by an authorized officer of Lender and US Collateral Agent, and as to amendments,as also signed by an authorized officer of Debtor. Lender and US Collateral Agent shall not, byany act, delay, omission or otherwise be deemed to have expressly or impliedly waived any of theirrights, powers and/or remedies unless such waiver shall be in writing and signed by an authorizedofficer of Lender or US Collateral Agent. Any such waiver shall be enforceable only to the extentspecifically set forth therein. A waiver by Lender or US Collateral Agent of any right, powerand/or remedy on any one occasion shall not be construed as a bar to or waiver of any such right,power and/or remedy which either would otherwise have on any future occasion, whether similar inkind or otherwise.     6.4 **Waiver of Counterclaims**. Debtor waives all rights to interpose any claims,deductions, setoffs or counterclaims of any nature (other then compulsory counterclaims) in any

 

- 15 -action or proceeding with respect to this Agreement, the Guaranteed Obligations, theCollateral or any matter arising therefrom or relating hereto or thereto.     6.5 **Indemnification**. Debtor shall indemnify and hold Lender, US Collateral Agent,Secured Parties, and their respective directors, agents, employees and counsel (collectively,“**Indemnified Parties**”), harmless from and against any and all losses, claims, damages, liabilities,costs or expenses imposed on, incurred by or asserted against any of them in connection with anylitigation, investigation, claim or proceeding commenced or threatened related to the negotiation,preparation, execution, delivery, enforcement, performance or administration of this Agreement, anyother Financing Agreements, or any undertaking or proceeding related to any of the transactionscontemplated hereby or any act, omission, event or transaction related or attendant thereto,including amounts paid in settlement, court costs, and the fees and expenses of counsel. To theextent that the undertaking to indemnify, pay and hold harmless set forth in this Section may beunenforceable because it violates any law or public policy, Debtor shall pay the maximum portionwhich it is permitted to pay under applicable law to Indemnified Parties in satisfaction ofindemnified matters under this Section. To the extent permitted by applicable law, Debtor shallnot assert, and Debtor hereby waives, any claim against Indemnified Parties, on any theory ofliability, for special, indirect, consequential or punitive damages (as opposed to direct or actualdamages) arising out of, in connection with, or as a result of, this Agreement, any of the otherFinancing Agreements or any undertaking or transaction contemplated hereby. The foregoing indemnityshall survive the payment of the Obligations and the termination or non-renewal of the ThirdAmended and Restated Loan Agreement.**SECTION 7.****MISCELLANEOUS**     7.1 **Interpretative Provisions**. (a) All terms used herein which are defined in Article 1 or Article9 of the UCC shall have the meanings given therein unless otherwise defined in thisAgreement.  (b) Capitalized terms used but not defined herein shall have the meanings given tothem in the Third Amended and Restated Loan Agreement.  (c) All references to the plural herein shall also mean the singular and to thesingular shall also mean the plural unless the context otherwise requires.  (d) All references to Debtor, Lender, US Collateral Agent, Borrower, SecuredParties and Indemnified Parties herein, or to any other person herein, shall includetheir respective successors and assigns.  (e) The words “**hereof**”, “**herein**”, “**hereunder**”, “**this Agreement**” and words ofsimilar import when used in this Agreement shall refer to this Agreement as a whole andnot any particular provision of this Agreement and as this Agreement now exists or mayhereafter be amended, modified, supplemented, extended, renewed, restated or replaced.

 

- 16 - (f) The word “**including**” when used in this Agreement shall mean “**including, withoutlimitation**”.  (g) All references to the term “**good faith**” used herein when applicable to Lenderor US Collateral Agent shall mean, notwithstanding anything to the contrary containedherein or in the UCC, honesty in fact in the conduct or transaction concerned. Debtorshall have the burden of proving any lack of good faith on the part of Lender or USCollateral Agent alleged by Debtor at any time.  (h) An Event of Default shall exist or continue or be continuing until such Eventof Default is waived in accordance with Section 6.3 or is cured in a mannersatisfactory to Lender and US Collateral Agent, if such Event of Default is capable ofbeing cured as determined by Lender and US Collateral Agent.  (i) In the computation of periods of time from a specified date to a laterspecified date, the word “**from**” means “**from and including**”, the words “**to**” and “**until**”each mean “**to but excluding**” and the word “**through**” means “**to and including**”.  (j) Unless otherwise expressly provided herein, (i) references herein to anyagreement, document or instrument shall be deemed to include all subsequent amendments,modifications, supplements, extensions, renewals, restatements or replacements withrespect thereto, but only to the extent the same are not prohibited by the terms hereofor of any other Financing Agreement, and (ii) references to any statute or regulationare to be construed as including all statutory and regulatory provisions consolidating,amending, replacing, recodifying, supplementing or interpreting the statute orregulation.  (k) The captions and headings of this Agreement are for convenience of referenceonly and shall not affect the interpretation of this Agreement.  (l) This Agreement and other Financing Agreements may use several differentlimitations, tests or measurements to regulate the same or similar matters. All suchlimitations, tests and measurements are cumulative and shall each be performed inaccordance with their terms.  (m) This Agreement and the other Financing Agreements are the result ofnegotiations among and have been reviewed by counsel to Lender and US Collateral Agentand the other parties, and are the products of all parties. Accordingly, thisAgreement and the other Financing Agreements shall not be construed against Lender andUS Collateral Agent merely because of Lender’s and US Collateral Agent’s involvement intheir preparation.     7.2 **Notices**. All notices, requests and demands hereunder shall be in writing anddeemed to have been given or made: if delivered in person, immediately upon delivery; if by telex,telegram or facsimile transmission, immediately upon sending and upon confirmation of receipt; ifby nationally recognized overnight courier service with instructions to deliver the next businessday, one (1) Business Day after sending; and if by certified mail, return receipt

 

- 17 -requested, five (5) days after mailing. All notices, requests and demands upon the partiesare to be given to the following addresses (or to such other address as any party may designate bynotice in accordance with this Section):   **If to Debtor**:  7480 Mission Valley Road, Suite 101   San Diego, California   92108   Attention: Whitney Peterson   Telephone No.: (619) 683-9830   Telecopy No.: (619) 683-9829      - and -      PO Box 92   Road Town Tortola   British Virgin Islands   VG 1110   Attention: Colette Corea Saunders   Telephone No.: 284-494-2204   Telecopy No.: 284-494-5535   **If to Lender and US Collateral Agent**:  Wachovia Capital Finance Corporation (Central)   150 South Wacker Drive, Suite 2200   Chicago, Illinois 60606-4401   Attention: Portfolio Manager   Telephone No.: 312-332-0420   Telecopy No.: 312-332-0424     7.3 **Partial Invalidity**. If any provision of this Agreement is held to be invalid orunenforceable, such invalidity or unenforceability shall not invalidate this Agreement as a whole,but this Agreement shall be construed as though it did not contain the particular provision held tobe invalid or unenforceable and the rights and obligations of the parties shall be construed andenforced only to such extent as shall be permitted by applicable law.     7.4 **Successors**. This Agreement, the other Financing Agreements and any other documentreferred to herein or therein shall be binding upon Debtor and its successors and assigns and inureto the benefit of and be enforceable by Lender and US Collateral Agent and their respectivesuccessors and assigns, except that Debtor may not assign its rights under this Agreement, theother Financing Agreements and any other document referred to herein or therein without the priorwritten consent of Lender and US Collateral Agent.     7.5 **Entire Agreement**. This Agreement, the other Financing Agreements, any supplementshereto or thereto, and any instruments or documents delivered or to be delivered in connectionherewith or therewith represents the entire agreement and understanding concerning the subjectmatter hereof and thereof between the parties hereto, and supersede all other prior agreements,understandings, negotiations and discussions, representations, warranties, commitments, proposals,offers and contracts concerning the subject matter hereof, whether oral

 

- 18 -or written. In the event of any inconsistency between the terms of this Agreement and anyschedule or exhibit hereto, the terms of this Agreement shall govern.     **IN WITNESS WHEREOF**, Debtor has caused these presents to be duly executed as of the day andyear first above written.