exv10w7





Exhibit 10.7



EXECUTION COPY




FIRST LIEN PLEDGE AND SECURITY AGREEMENT




dated as of February 28, 2007



between

EACH OF THE GRANTORS PARTY HERETO


and


GOLDMAN SACHS CREDIT PARTNERS L.P.,



as Collateral Agent



 









 





TABLE OF CONTENTS



	 	 	 	 	 
	 	 	PAGE	 
	SECTION 1. DEFINITIONS; GRANT OF SECURITY
	 	 	1	 
	1.1 General Definitions
	 	 	1	 
	1.2 Definitions; Interpretation
	 	 	7	 
	 
	 	 	 	 
	SECTION 2. GRANT OF SECURITY
	 	 	7	 
	2.1 Grant of Security
	 	 	7	 
	2.2 Certain Limited Exclusions
	 	 	8	 
	 
	 	 	 	 
	SECTION 3. SECURITY FOR OBLIGATIONS; GRANTORS REMAIN LIABLE
	 	 	8	 
	3.1 Security for Obligations
	 	 	9	 
	3.2 Continuing Liability Under Collateral
	 	 	9	 
	 
	 	 	 	 
	SECTION 4. REPRESENTATIONS AND WARRANTIES AND COVENANTS
	 	 	9	 
	4.1 Generally
	 	 	9	 
	4.2 Equipment and Inventory
	 	 	12	 
	4.3 Receivables
	 	 	13	 
	4.4 Investment Related Property
	 	 	15	 
	4.5 Material Contracts
	 	 	21	 
	4.6 Letter of Credit Rights
	 	 	22	 
	4.7 Intellectual Property
	 	 	23	 
	4.8 Commercial Tort Claims
	 	 	25	 
	 
	 	 	 	 
	SECTION 5. ACCESS; RIGHT OF INSPECTION AND FURTHER
ASSURANCES; ADDITIONAL GRANTORS
	 	 	25	 
	5.1 Access; Right of Inspection
	 	 	25	 
	5.2 Further Assurances
	 	 	25	 
	5.3 Additional Grantors
	 	 	26	 
	 
	 	 	 	 
	SECTION 6. COLLATERAL AGENT APPOINTED ATTORNEY-IN-FACT
	 	 	27	 
	6.1 Power of Attorney
	 	 	27	 
	6.2 No Duty on the Part of Collateral Agent or Secured Parties
	 	 	28	 
	 
	 	 	 	 
	SECTION 7. REMEDIES
	 	 	28	 
	7.1 Generally
	 	 	28	 
	7.2 Application of Proceeds
	 	 	29	 
	7.3 Sales on Credit
	 	 	30	 
	7.4 Deposit Accounts
	 	 	30	 
	7.5 Investment Related Property
	 	 	30	 
	7.6 Intellectual Property
	 	 	31	 
	7.7 Cash Proceeds
	 	 	32	 
	 
	 	 	 	 
	SECTION 8. COLLATERAL AGENT
	 	 	33	 
	 
	 	 	 	 
	SECTION 9. CONTINUING SECURITY INTEREST; TRANSFER OF LOANS
	 	 	33	 
	 
	 	 	 	 
	SECTION 10. STANDARD OF CARE; COLLATERAL AGENT MAY PERFORM
	 	 	34	 






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	 	 	PAGE	 
	SECTION 11. MISCELLANEOUS
	 	 	34	 
	 
	 	 	 	 
	SCHEDULE 4.1
— GENERAL INFORMATION
	 	 	 	 
	 
	 	 	 	 
	SCHEDULE 4.2 — LOCATION OF EQUIPMENT AND INVENTORY
	 	 	 	 
	 
	 	 	 	 
	SCHEDULE 4.4 — INVESTMENT RELATED PROPERTY
	 	 	 	 
	 
	 	 	 	 
	SCHEDULE 4.5 — MATERIAL CONTRACTS
	 	 	 	 
	 
	 	 	 	 
	SCHEDULE 4.6 — DESCRIPTION OF LETTERS OF CREDIT
	 	 	 	 
	 
	 	 	 	 
	SCHEDULE 4.7
— INTELLECTUAL PROPERTY — EXCEPTIONS
	 	 	 	 
	 
	 	 	 	 
	SCHEDULE 4.8 — COMMERCIAL TORT CLAIMS
	 	 	 	 
	 
	 	 	 	 
	EXHIBIT A — PLEDGE SUPPLEMENT
	 	 	 	 
	 
	 	 	 	 
	EXHIBIT B — UNCERTIFICATED SECURITIES CONTROL AGREEMENT
	 	 	 	 
	 
	 	 	 	 
	EXHIBIT C
— SECURITIES ACCOUNT CONTROL AGREEMENT
	 	 	 	 
	 
	 	 	 	 
	EXHIBIT D — DEPOSIT ACCOUNT CONTROL AGREEMENT
	 	 	 	 







ii











 








          This FIRST LIEN PLEDGE AND SECURITY AGREEMENT, dated as of February 28, 2007 (this
“Agreement”), between EACH OF THE UNDERSIGNED, whether as an original signatory hereto or as an
Additional Grantor (as herein defined) (each, a “Grantor”), and Goldman Sachs Credit Partners L.P.
(“GSCP”), as collateral agent for the Secured Parties (as herein defined) (in such capacity as
collateral agent, the “Collateral Agent”).




RECITALS:




     WHEREAS, reference is made to that certain First Lien Credit and Guaranty Agreement, dated as
of the date hereof (as it may be amended, restated, supplemented or otherwise modified from time to
time, the “Credit Agreement”), by and among AZ CHEM US INC. (“U.S. Borrower”), AZ CHEM SWEDEN AB
(“European Borrower”, and together with U.S. Borrower, the “Borrowers”), AZ CHEM SWEDEN HOLDINGS AB
(“Holdings”), certain Subsidiaries of Holdings, as Guarantors, the lenders party thereto from time
to time (the “Lenders”), and GSCP, as Lead Arranger, Bookrunner, Administrative Agent, Syndication
Agent and Collateral Agent;



     WHEREAS, subject to the terms and conditions of the Credit Agreement, certain Grantors may
enter into one or more Hedge Agreements with one or more Lender Counterparties;



     WHEREAS, in consideration of the extensions of credit and other accommodations of Lenders and
Lender Counterparties as set forth in the Credit Agreement and the Hedge
Agreements, respectively, each Grantor has agreed to secure such Grantor’s obligations under the
Credit Documents and the Hedge Agreements as set forth herein; and



     NOW, THEREFORE, in consideration of the premises and the agreements, provisions and covenants
herein contained, each Grantor and the Collateral Agent agree as follows:



SECTION 1. DEFINITIONS; GRANT OF SECURITY.




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



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




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

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

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




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




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





 









 











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




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




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




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




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




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




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




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




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




          “Copyrights” shall mean all United States, and foreign copyrights (including Community
designs), owned by each Grantor including but not limited to copyrights in software and databases,
and all Mask Works (as defined in 17 U.S.C. § 901(a)(1)) whether registered or unregistered, and,
with respect to any and all of the foregoing: (i) all registrations and applications therefor
including, without limitation, the registrations and applications referred to in Schedule 4.7(A)
(as such schedule may be amended or supplemented from time to time), (ii) all extensions and
renewals thereof, (iii) all rights corresponding thereto, (iv) all rights to sue for past, present
and future infringements thereof, and (v) all Proceeds of the foregoing, including, without
limitation, licenses, royalties, income, payments, claims, damages and proceeds of suit.




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




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




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




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




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




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




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




          “Indemnitee” shall mean the Collateral Agent, and its and its Affiliates’ officers,
partners, directors, trustees, employees, agents.




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




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




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




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




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




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








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




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




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




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




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




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




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




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




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




          “Pledged Equity Interests” shall mean all Pledged Stock, Pledged LLC Interests, Pledged
Partnership Interests and Pledged Trust Interests.




          “Pledged LLC Interests” shall mean all interests in any limited liability company including,
without limitation, all limited liability company interests listed on Schedule 4.4(A) under the
heading “Pledged LLC Interests” (as such schedule may be amended or supplemented from time to time)
and the certificates, if any, representing such limited liability company interests and any
interest of such Grantor on the books and records of such limited





4









 










liability company or on the books and records of any securities intermediary pertaining to such
interest and all dividends, distributions, cash, warrants, rights, options, instruments, securities
and other property or proceeds from time to time received, receivable or otherwise distributed in
respect of or in exchange for any or all of such limited liability company interests.




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




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




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




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




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




          “Receivables Records” shall mean (i) all original copies of all documents, instruments or
other writings or electronic records or other Records evidencing the Receivables, (ii) all books,
correspondence, credit or other files, Records, ledger sheets or cards, invoices, and




5









 










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




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




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




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




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




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




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




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




          “Trade Secret Licenses” shall mean all written agreements providing for the granting of any
right in or to Trade Secrets (whether such Grantor is licensee or licensor





6









 






thereunder) including, without limitation, each agreement referred to in Schedule 4.7(G) (as such
schedule may be amended or supplemented from time to time).




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




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




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




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



SECTION 2. GRANT OF SECURITY.




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



          (a) Accounts;




          (b) Chattel Paper;




          (c) Documents;




          (d) General Intangibles;






7









 











          (e) Goods;




          (f) Instruments;




          (g) Insurance;




          (h) Intellectual Property;




          (i) Investment Related Property;




          (j) Letter of Credit Rights;




          (k) Money;




          (l) Receivables and Receivable Records;




          (m) Commercial Tort Claims;




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




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




     2.2 Certain Limited Exclusions. Notwithstanding anything herein to the contrary, in no event shall the
Collateral include or the security interest granted under Section 2.1 hereof
attach to (a) any lease, license, sublicense, contract,property
rights or agreement to which any Grantor is a party if and for so long as the grant of
such security interest shall constitute or result in (i) the abandonment, invalidation or
unenforceability of any right, title or interest of any Grantor therein or
(ii) in a breach or termination pursuant to the terms of, or a default under, any such lease,
license, sublicense, contract property rights or agreement (other than to the extent that
any such term would be rendered ineffective pursuant to Sections 9-406,
9-407, 9-408 or 9-409 of the UCC (or any successor provision or provisions) of any relevant
jurisdiction or any other applicable law (including the Bankruptcy Code) or principles of equity),
provided however that the Collateral shall include and such security interest shall attach
immediately at such time as the condition causing such abandonment, invalidation or
unenforceability shall be remedied and, to the extent severable, shall attach immediately to any
portion of such Lease, license, contract, property rights or agreement that does not result in any
of the consequences specified in (i) or (ii) above; or (b) any of the outstanding capital stock of
a Controlled Foreign Corporation in excess of 65% of the voting power of all classes of capital
stock of such Controlled Foreign Corporation entitled to vote;
provided that immediately upon the
amendment of the Tax Code to allow the pledge of a greater percentage of the voting power of
capital stock in a Controlled Foreign Corporation without adverse tax consequences, the Collateral
shall include, and the security interest granted by each Grantor shall attach to, such greater
percentage of capital stock of each Controlled Foreign Corporation; or (c) any intent-to-use
Trademark applications until such time as verified “statement of use” or “amendment to allege use”
with respect thereto has been filed with and accepted in the United States Patent and Trademark
Office; or (d) for so long as the Specified Target is not a wholly-owned Subsidiary of the
Grantors, the Equity Interests of the Specified Target.



SECTION 3. SECURITY FOR OBLIGATIONS; GRANTORS REMAIN LIABLE.









8









 









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



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



SECTION 4. REPRESENTATIONS AND WARRANTIES AND COVENANTS.




     4.1 Generally.



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





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




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




          (iii) the full legal name of such Grantor is as set forth on Schedule 4.1(A) and it
has not done in the last five (5) years, and does not do, business under any other name
(including any trade name or fictitious business name) except for



9









 










those names set forth on Schedule 4.1(B) (as such schedule may be amended or supplemented
from time to time);




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




          (v) it has not within the last five (5) years become bound (whether as a result of
merger or otherwise) as debtor under a security agreement entered into by another Person,
which has not heretofore been terminated other than the agreements identified on Schedule
4.1(D) hereof (as such schedule may be amended or supplemented from time to time);




          (vi) with respect to each agreement identified on Schedule 4.1(D), it has indicated on
Schedule 4.1 (A) and Schedule 4.1(B) the information required pursuant to Section
4.1(a)(ii), (iii) and (iv) with respect to the debtor under each such agreement;




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




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




          (ix) other than the financing statements filed in favor of the Collateral Agent, no
effective UCC financing statement, fixture filing or other instrument similar in effect
under any applicable law covering all or any part of the Collateral is on file in any
filing or recording office except for (x) financing statements for which proper








10









 











termination statements have been delivered to the Collateral Agent for filing and (y)
financing statements filed in connection with Permitted Liens;




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




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




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




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




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










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




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



11









 









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




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




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




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




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



     4.2 Equipment and Inventory.



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





          (i) all of the Equipment and Inventory (in excess of $10,000 per location) included in
the Collateral is kept at the locations specified in Schedule 4.2 (as such schedule may be
amended or supplemented from time to time);




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




          (iii) none of the Inventory or Equipment in excess of $2,500,000 in the aggregate at
any time is in the possession of an issuer of a negotiable document (as defined in Section
7-104 of the UCC) therefor or otherwise in the possession of a bailee or a warehouseman.



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








12









 











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




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




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




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




          (v) with respect to any item of Equipment which is
covered by a certificate of title under a statute of any jurisdiction under the law of which indication of a security interest on such
certificate is required as a condition of perfection thereof, upon the
reasonable request of the Collateral Agent, (A) provide information with respect to any
such Equipment in excess of $2,500,000 in the aggregate, (B) execute and file with the
registrar of motor vehicles or other appropriate authority in such jurisdiction an
application or other document requesting the notation or other indication of the security
interest created hereunder on such certificate of title, and (C) deliver to the Collateral
Agent copies of all such applications or other documents filed during such calendar quarter
and copies of all such certificates of title issued during such calendar quarter indicating
the security interest created hereunder in the items of Equipment covered thereby.



     4.3 Receivables.



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





          (i) none of the Account Debtors in respect of any Receivable in excess of $1,000,000
individually or $5,000,000 in the aggregate is the government of the United States, any
agency or instrumentality thereof, any state or municipality or any foreign sovereign
unless the Grantors provide notice to the Collateral Agent, no Receivable in excess of
$1,000,000 individually or $5,000,000 in the aggregate requires








13









 










the consent of the Account Debtor in respect thereof in connection with the pledge
hereunder, except any consent which has been obtained; and




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



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





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




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




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




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




          (v) except as otherwise provided in this subsection (v), each Grantor shall continue
to collect all amounts due or to become due to such Grantor under the Receivables and any
Supporting Obligation and diligently exercise each material right it may have under any
Receivable, any Supporting Obligation or Collateral Support, in each case, at its own
expense, and in connection with such collections and exercise, such Grantor shall take such
action as such Grantor may deem necessary or advisable. Notwithstanding the foregoing, the
Collateral Agent shall have the right at any time to notify, or require any Grantor to
notify, any Account Debtor of the Collateral Agent’s security interest in the Receivables
and any Supporting Obligation and, in addition, at any time following the occurrence and
during the continuation of an Event of Default, the Collateral Agent may: (1) direct the
Account Debtors under any Receivables to make payment of all amounts due or to become due
to such Grantor thereunder directly to the Collateral Agent; (2) notify, or require any
Grantor to notify, each Person maintaining a lockbox or similar arrangement to which
Account Debtors under any Receivables have been directed to make payment to remit all
amounts representing collections on checks



14









 










and other payment items from time to time sent to or deposited in such
lockbox or other arrangement directly to the Collateral Agent; and (3) enforce, at the expense of such
Grantor, collection of any such Receivables and to adjust, settle or compromise the amount
or payment thereof, in the same manner and to the same extent as such Grantor might have
done. If the Collateral Agent notifies any Grantor that it has elected to collect the
Receivables in accordance with the preceding sentence, any payments of Receivables received
by such Grantor shall be forthwith (and in any event within two (2) Business Days)
deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the
Collateral Agent if required, in an account maintained under the sole dominion and control
of the Collateral Agent, and until so turned over, all amounts and proceeds (including
checks and other instruments) received by such Grantor in respect of the Receivables, any
Supporting Obligation or Collateral Support shall be received in trust for the benefit of
the Collateral Agent hereunder and shall be segregated from other funds of such Grantor and
such Grantor shall not adjust, settle or compromise the amount or payment of any
Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any
credit or discount thereon; and




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



          (c) Delivery and Control of Receivables. With respect to any
Receivables in excess of $1,000,000 individually or $5,000,000 that is evidenced by, or constitutes, Chattel
Paper or Instruments, each Grantor shall cause each originally executed copy thereof to be
delivered to the Collateral Agent (or its agent or designee) appropriately indorsed to the
Collateral Agent or indorsed in blank: (i) with respect to any such Receivables in
existence on the date hereof, on or prior to the date hereof and (ii) with respect to any such
Receivables hereafter arising, within ten (10) Business Days of such Grantor acquiring rights
therein. With respect to any Receivables in excess of $1,000,000 individually or
$5,000,000 in the aggregate which would constitute “electronic chattel paper” under
Article 9 of the UCC, each Grantor shall take all steps necessary to give
the Collateral Agent control over such Receivables (within the meaning of Section
9-105 of the UCC): (i) with respect to any such Receivables in existence on the date hereof, on or
prior to the date hereof and (ii) with respect to any such Receivables hereafter arising, within
ten (10) days of such Grantor acquiring rights therein. Any Receivable not otherwise required to
be delivered or subjected to the control of the Collateral Agent in accordance with this subsection
(c) shall be delivered or subjected to such control upon request of the Collateral Agent.




     4.4
Investment Related Property. Investment Related Property Generally



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





          (i) in the event it acquires rights in any Investment Related Property after the date
hereof, it shall deliver to the Collateral Agent a completed Pledge Supplement,
substantially in the form of Exhibit A attached hereto, together with all Supplements to
Schedules thereto, reflecting such new Investment Related Property and all other Investment
Related Property. Notwithstanding the foregoing, it is understood and agreed that the
security interest of the Collateral Agent shall attach to all Investment Related Property
immediately upon any Grantor’s acquisition of rights therein and shall



15









 










not be affected by the failure of any Grantor to deliver a supplement to Schedule 4.4 as
required hereby;



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



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



          (b) Delivery and Control.









          (i) Each Grantor agrees that with respect
to any Investment Related Property in which it currently has rights it shall comply with
the provisions of this Section 4.4.1(b) on or before the Credit Date and with respect to any Investment Related Property hereafter acquired
by such Grantor it shall comply with the provisions of this
Section 4.4.1(b) immediately upon acquiring rights therein, in each case in form and substance reasonably satisfactory to the Collateral Agent. With respect to any
Investment Related Property that is represented by a certificate or that is an Instrument
(other than any Investment Related Property credited to a Securities Account) it shall
cause such certificate or Instrument to be delivered to the Collateral Agent, indorsed in
blank by an “effective indorsement” (as defined in Section 8-107 of the UCC), regardless of
whether such certificate constitutes a “certificated security” for purposes of the UCC.
With respect to any Investment Related Property that is an “uncertificated security” for
purposes of the UCC (other than any “uncertificated securities” credited to a Securities
Account), it shall cause the issuer of such uncertificated security to either (i) register
the Collateral Agent as the registered owner thereof on the books and records of the issuer
or (ii) execute an agreement substantially in the form of Exhibit B hereto, pursuant to
which such issuer agrees to comply with the Collateral Agent’s instructions with respect to
such uncertificated security without further consent by such Grantor.



          (c) Voting and Distributions.





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



16









 









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






          (ii) Upon the occurrence and during the continuation of an Event
of Default:




	 	(1)	 	all rights of each Grantor to exercise or refrain from exercising the voting and other consensual rights which it
would otherwise be entitled to exercise pursuant hereto shall cease and all such rights
shall thereupon become vested in the Collateral Agent who shall thereupon have the sole
right to exercise such voting and other consensual rights; and
	 
	 	(2)	 	in order to permit the Collateral Agent to exercise the voting and other consensual
rights which it may be entitled to exercise pursuant hereto and to receive all dividends
and other distributions which it may be entitled to receive hereunder: (A) each Grantor
shall promptly execute and deliver (or cause to be executed and delivered) to the
Collateral Agent all proxies, dividend payment orders and other instruments as the
Collateral Agent may from time to time reasonably request and (B) each Grantor acknowledges
that the Collateral Agent may utilize the power of attorney set forth in Section 6.1.





           4.4.2 Pledged Equity Interests




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





17











 






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




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




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




          (iv) no consent of any Person including any other general or limited partner, any
other member of a limited liability company, any other shareholder or any other trust
beneficiary is necessary in connection with the creation, perfection
or first priority status of the security interest of the Collateral Agent in any Pledged
Equity Interests or the exercise by the Collateral Agent of the voting or other rights
provided for in this Agreement or the exercise of remedies in respect thereof;




          (v) none of the Pledged LLC Interests nor Pledged Partnership Interests are or represent interests in issuers that: (a) are registered as
investment companies or (b) are dealt in or traded on securities exchanges or markets; and
(vi) except as otherwise set forth on Schedule 4.4(C), all of the Pledged LLC Interests and
Pledged Partnership Interests are or represent interests in issuers that have opted to be
treated as securities under the uniform commercial code of any jurisdiction.



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





          (i) without the prior written consent of the Collateral Agent, it shall not vote to
enable or take any other action to: (a) amend or terminate any partnership agreement,
limited liability company agreement, certificate of incorporation, by-laws or other
organizational documents in any way that materially changes the rights of such Grantor with
respect to any Investment Related Property or adversely affects the validity, perfection or
priority of the Collateral Agent’s security interest, (b) permit any issuer of any Pledged
Equity Interest to issue any additional stock, partnership interests, limited liability
company interests or other equity interests of any nature or to issue securities
convertible into or granting the right of purchase or exchange for any stock or other
equity interest of any nature of such issuer, (c) other than as permitted under the Credit
Agreement, permit any issuer of any Pledged Equity Interest to dispose of all or a material
portion of their assets, (d) waive any default under or breach of any terms of
organizational document relating to the issuer of any Pledged Equity Interest or the terms



18









 







of any Pledged Debt, or (e) cause any issuer of any Pledged Partnership Interests or
Pledged LLC Interests which are not securities (for purposes of the UCC) on the date hereof
to elect or otherwise take any action to cause such Pledged Partnership Interests or
Pledged LLC Interests to be treated as securities for purposes of the UCC; provided,
however, notwithstanding the foregoing, if any issuer of any Pledged Partnership Interests
or Pledged LLC Interests takes any such action that contradicts the foregoing in this
clause (e), such Grantor shall promptly notify the Collateral Agent in writing of any such
election or action and, in such event, shall take all steps necessary or advisable to
establish the Collateral Agent’s “control” thereof;




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




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




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



          4.4.3 Pledged Debt




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





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



          (b) Covenant
and Agreement. Each Grantor hereby covenants and agrees that it shall notify the
Collateral Agent of any default under any Pledged Debt that has caused, either in any individual
case or in the aggregate, a Material Adverse Effect.





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          4.4.4 Investment Accounts




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





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




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




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



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




          (c) Delivery
and Control





          (i) With respect to any Investment Related Property consisting of Securities Accounts,
it shall cause the securities intermediary maintaining such Securities Account to enter
into an agreement substantially in the form of Exhibit C hereto pursuant to which it shall
agree to comply with the Collateral Agent’s “entitlement orders” without further consent by
such Grantor. With respect to any Investment Related Property that is a “Deposit Account,”
it shall cause the depositary institution maintaining such account to enter into an
agreement substantially in the form of Exhibit D hereto,



20









 






pursuant to which the Collateral Agent shall have both sole dominion and control over such
Deposit Account (within the meaning of the common law) and “control” (within the meaning of
Section 9-104 of the UCC) over such Deposit Account. To the extent required by the Credit
Agreement, each Grantor shall use commercially reasonable efforts to enter into such
control agreement or agreements with respect to: (i) any Securities Accounts or Deposit
Accounts that exist on the Closing Date, and (ii) any Securities Accounts or Deposit
Accounts that are created or acquired after the Closing Date, as of or prior to the deposit
or transfer of any such securities entitlements or funds, whether constituting moneys or
investments, into such Securities Accounts or Deposit Accounts.




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




4.5 Material Contracts.



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





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




          (ii) To the extent reasonably requested by the Collateral Agent, each Person party to
a Material Contract (other than any Grantor) has executed and delivered to the applicable
Grantor a consent to the assignment of such Material Contract to the Collateral Agent
pursuant to this Agreement; and




          (iii) no Material Contract prohibits assignment or requires consent of or notice to
any Person in connection with the assignment to the Collateral Agent hereunder, except such
as has been given or made or is currently sought pursuant to Section 4.5 (b)(vii) hereof.



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





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



21









 






Grantor, notify, or require any Grantor to notify, the counterparty to make all payments
under the Material Contracts directly to the Collateral Agent;




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




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




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




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




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




          (vii) each Grantor shall, to the extent reasonably
requested by the Collateral Agent within thirty (30)
days after entering into any Non-Assignable Contract
after the Closing Date, request in writing the consent
of the counterparty or counterparties to the
Non-Assignable Contract pursuant to the terms of such
Non-Assignable Contract or applicable law to the
assignment or granting of a security interest in such
Non-Assignable Contract to Secured Party and use
commercially reasonable efforts to obtain such consent
as soon as practicable thereafter.




4.6 Letter of Credit Rights.



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





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




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




22












 








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




     4.7 Intellectual Property.



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





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




          (ii) each Grantor owns or has the valid right to use all Intellectual Property
necessary to conduct its business as currently conducted, free and clear of all Liens,
except for Permitted Liens and the licenses set forth on Schedule
4.7(B), (D), (F) and (G) (as each may be amended or supplemented from time to time);




          (iii) to the knowledge of each Grantor, all material Intellectual Property is
subsisting and has not been adjudged invalid or unenforceable, in whole or in part;




          (iv) to the knowledge  of each Grantor, all material Intellectual
Property is valid and enforceable; no holding, decision, or judgment has been rendered
within the last three (3) years in any action or proceeding before any court or
administrative authority challenging the validity of, such Grantor’s right to register, or
such Grantor’s rights to own or use any material Intellectual Property and no such action
or proceeding is pending or, to the best of such Grantor’s knowledge, threatened;




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




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



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





          (i) it shall not knowingly do any act or omit to do any act whereby any of the
Intellectual Property which is material to the business of Grantor may






23









 





lapse, or become abandoned, dedicated to the public, or unenforceable, or which would
materially adversely affect the validity or enforceability of the security interest granted
therein;




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




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




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




          (v) in the event that any material Intellectual Property owned by any Grantor is
infringed, misappropriated, or diluted by a third party, such Grantor shall take
such actions as it deems appropriate in its reasonable business judgment to protect its
rights in such Intellectual Property including, but not limited to, the initiation of a
suit for injunctive relief and to recover damages;




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




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








24









 












          (viii) it shall take reasonable steps to protect the secrecy of all Trade Secrets;




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




          (x) it shall use commercially reasonably efforts to collect, at its own expense, all
amounts due or to become due to such Grantor in respect of the Intellectual Property or any
portion thereof.



     4.8 Commercial Tort Claims



          (a) Representations and Warranties. Each Grantor hereby represents and warrants, on the
Closing Date and on each Credit Date, that Schedule 4.8 (as such schedule may be amended or
supplemented from time to time) sets forth all Commercial Tort Claims of each Grantor in excess of
$1,000,000 individually or $5,000,000; and




          (b) Covenants and Agreements. Each Grantor hereby covenants and agrees that with respect to
any Commercial Tort Claim in excess of $1,000,000 individually or $5,000,000 hereafter arising it
shall deliver to the Collateral Agent a completed Pledge Supplement, substantially in the form of
Exhibit A attached hereto, together with all Supplements to Schedules thereto, identifying such new
Commercial Tort Claims.





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





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



     5.2 Further Assurances.



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





          (i) file such financing or continuation statements, or amendments thereto, and execute
and deliver such other agreements, instruments, endorsements, powers of attorney or
notices, as may be necessary or desirable, or as the



25









 










Collateral Agent may reasonably request, in order to perfect and preserve the security
interests granted or purported to be granted hereby;




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




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




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



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




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




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



26









 







Grantor that is or becomes a party hereto regardless of whether any other Person becomes or fails
to become or ceases to be a Grantor hereunder.




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




     6.1 Power of Attorney. Each Grantor hereby irrevocably appoints the Collateral Agent (such
appointment being coupled with an interest) as such Grantor’s attorney-in-fact, with full authority
in the place and stead of such Grantor and in the name of such Grantor, the Collateral Agent or
otherwise, from time to time in the Collateral Agent’s discretion to take any
action and to execute any instrument that the Collateral Agent may deem reasonably necessary
or advisable to accomplish the purposes of this Agreement, including, without limitation, the
following:



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




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



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



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



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



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



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



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




27











 







Collateral and the Collateral Agent’s security interest therein in order to effect the intent
of this Agreement, all as fully and effectively as such Grantor might do.




          (ii) Notwithstanding anything in this Section 6.1 to the contrary, the Collateral Agent agrees
that it will not exercise any rights under the power of attorney provided for in Section 6.1(h)
unless an Event of Default has occurred.




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



SECTION 7. REMEDIES.




     7.1 Generally.



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





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




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




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




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



          (b) The Collateral Agent or any Secured Party may be the purchaser of any or all of the
Collateral at any public or private (to the extent to the portion of the Collateral being privately
sold is of a kind that is customarily sold on a recognized market or the subject of widely





28









 










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




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




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




     7.2 Application of Proceeds. Except as expressly provided elsewhere in this Agreement, all
proceeds received by the Collateral Agent in respect of any sale, any collection from or other
realization upon all or any part of the Collateral shall be applied in full or in part by the
Collateral Agent against the Secured Obligations in the following order of priority: first, to the
payment of all costs and expenses of such sale, collection or other realization, including
reasonable compensation to the Collateral Agent and its agents and counsel, and all other expenses,
liabilities and advances made or incurred by the Collateral Agent in connection therewith, and all
amounts for which the Collateral Agent is entitled to indemnification hereunder



29









 







(in its capacity as the Collateral Agent and not as a Lender) and all advances made by the
Collateral Agent hereunder for the account of the applicable Grantor, and to the payment of all
costs and expenses paid or incurred by the Collateral Agent in connection with the exercise of any
right or remedy hereunder or under the Credit Agreement, all in accordance with the terms hereof or
thereof; second, to the extent of any excess of such proceeds, to the payment of all other
Secured Obligations for the ratable benefit of the Lenders and the Lender Counterparties; and
third, to the extent of any excess of such proceeds, to the payment to or upon the order of such
Grantor or to whosoever may be lawfully entitled to receive the same or as a court of competent
jurisdiction may direct.




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



     7.4 Deposit Accounts.



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



     7.5 Investment Related Property.



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



30









 







7.6 Intellectual Property.




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





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




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




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




          (iv) within ten (10) Business Days after written notice from the Collateral Agent,
each Grantor shall make available to the Collateral Agent, to the extent within such
Grantor’s power and authority, such personnel in such Grantor’s employ on the date of such
Event of Default as the Collateral Agent may reasonably designate, by name, title or job
responsibility, to permit such Grantor to continue, directly or indirectly, to produce,
advertise and sell the products and services sold or delivered by such Grantor under or in
connection with the Trademarks, Trademark Licenses, such persons to be available to perform
their prior functions on the Collateral Agent’s behalf and to be compensated by the
Collateral Agent at such Grantor’s expense on a per diem, pro-rata basis consistent with
the salary and benefit structure applicable to each as of the date of such Event of
Default; and




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



31









 









	 	(1)	 	all amounts and proceeds (including checks and other instruments) received by Grantor
in respect of amounts due to such Grantor in respect of the Collateral or any portion
thereof shall be received in trust for the benefit of the Collateral Agent hereunder, shall
be segregated from other funds of such Grantor and shall be forthwith paid over or
delivered to the Collateral Agent in the same form as so received (with any necessary
endorsement) to be held as cash Collateral and applied as provided by Section 7.7 hereof;
and
	 
	 	(2)	 	Grantor shall not adjust, settle or compromise the amount or payment of any such amount
or release wholly or partly any obligor with respect thereto or allow any credit or
discount thereon.





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




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




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



32









 







Collateral Agent for the ratable benefit of the Secured Parties, as collateral security for the
Secured Obligations (whether matured or unmatured) and/or (B) then or at any time thereafter may be
applied by the Collateral Agent against the Secured Obligations then due and owing.




SECTION 8. COLLATERAL AGENT.




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



SECTION 9. CONTINUING SECURITY INTEREST; TRANSFER OF LOANS.




     This Agreement shall create a continuing security interest in the Collateral and shall remain
in full force and effect until the payment in full of all Secured Obligations, the cancellation or
termination of the Commitments and the cancellation or expiration of all outstanding Letters of
Credit, be binding upon each Grantor, its successors and assigns, and inure, together with the
rights and remedies of the Collateral Agent hereunder, to the benefit of the



33









 







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




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




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



SECTION 11. MISCELLANEOUS.




     Any notice required or permitted to be given under this Agreement shall be given in accordance
with Section 10.1 of the Credit Agreement. No failure or delay on the part of the Collateral Agent
in the exercise of any power, right or privilege hereunder or under any other Credit Document shall
impair such power, right or privilege or be construed to be a waiver of any default or acquiescence
therein, nor shall any single or partial exercise of any such power, right or privilege preclude
other or further exercise thereof or of any other power, right or privilege. All rights and
remedies existing under this Agreement and the other Credit Documents are cumulative to, and not
exclusive of, any rights or remedies otherwise available. In case any provision in or obligation
under this Agreement shall be invalid, illegal or unenforceable in any jurisdiction, the validity,
legality and enforceability of the remaining provisions or obligations, or of such provision or
obligation in any other jurisdiction, shall not in any way be affected or impaired thereby. All
covenants hereunder shall be given independent effect so that if a particular action or condition
is not permitted by any of such covenants, the fact that it would be



34









 







permitted by an exception to, or would otherwise be within the limitations of, another covenant
shall not avoid the occurrence of a Default or an Event of Default if such action is taken or
condition exists. This Agreement shall be binding upon and inure to the benefit of the Collateral
Agent and Grantors and their respective successors and assigns. No Grantor shall, without the prior
written consent of the Collateral Agent given in accordance with the Credit Agreement,
assign any right, duty or obligation hereunder. This Agreement and the other Credit Documents
embody the entire agreement and understanding between Grantors and the Collateral Agent and
supersede all prior agreements and understandings between such parties relating to the subject
matter hereof and thereof. Accordingly, the Credit Documents may not be contradicted by evidence
of prior, contemporaneous or subsequent oral agreements of the parties. There are no unwritten oral
agreements between the parties. This Agreement may be executed in one or more counterparts and by
different parties hereto in separate counterparts, each of which when so executed and delivered
shall be deemed an original, but all such counterparts together shall constitute but one and the
same instrument; signature pages may be detached from multiple separate counterparts and attached
to a single counterpart so that all signature pages are physically attached to the same document.




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






35









 












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




	 	 	 	 	 
	 	AZ CHEM US HOLDINGS INC. 

as Grantor 

 	 
	 	By:  	/s/
Gianpiero
Lenza	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	AZ CHEM US INC. 

as Grantor

 	 
	 	By:  	/s/
Gianpiero
Lenza	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	ARIZONA CHEMICAL COMPANY

as Grantor

 	 
	 	By:  	/s/
Gerald C. Marterer	 
	 	 	Name:  	Gerald C. Marterer	 
	 	 	Title:  	President	 
	 
	 	ARIZONA ARBORIS, INC. 

as Grantor

 	 
	 	By:  	/s/
Gerald C. Marterer	 
	 	 	Name:  	Gerald C. Marterer	 
	 	 	Title:  	President	 
	 
	 	GOLDMAN SACHS CREDIT PARTNERS L.P. 

as the Collateral Agent

 	 
	 	By:  	 	 
	 	 	Authorized Signatory 	 
	 	 	 	 
	 




36











 








SCHEDULE 4.1

TO PLEDGE AND SECURITY AGREEMENT




GENERAL INFORMATION





	(A)	 	Full Legal Name, Type of Organization, Jurisdiction of Organization, Chief Executive
Office/Sole Place of Business (or Residence if Grantor is a Natural Person) and
Organizational Identification Number of each Grantor:





	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	Chief Executive	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	Office/Sole Place of	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	Business (or	 	 
	Full Legal	 	Type of	 	Jurisdiction of	 	Residence if Grantor	 	 
	Name	 	Organization	 	Organization	 	is a Natural Person)	 	Organization I.D.#






	(B)	 	Other Names (including any Trade Name or Fictitious Business Name) under which each
Grantor has conducted business for the past five (5) years:





	 	 	 
	Full Legal Name	 	Trade Name or Fictitious Business Name






	(C)	 	Changes in Name, Jurisdiction of
Organization, Chief Executive Office or Sole Place of
Business (or Principal Residence if Grantor is a Natural Person) and Corporate Structure
within past five (5) years:





	 	 	 	 	 
	Grantor	 	Date of Change	 	Description of Change






	(D)	 	Agreements pursuant to which any Grantor is found as debtor within past five (5) years:





	 	 	 	 	 
	Grantor	 	Description of Agreement






	(E)	 	Financing Statements:





	 	 	 	 	 
	Grantor	 	Filing Jurisdiction(s)





SCHEDULE 4.1-1














 










SCHEDULE 4.2

TO PLEDGE AND SECURITY AGREEMENT





	 	 	 	 	 
	Grantor	 	Location of Equipment and Inventory





SCHEDULE 4.2-1














 










SCHEDULE 4.4

TO PLEDGE AND SECURITY AGREEMENT




INVESTMENT RELATED PROPERTY




(A) Pledged Stock:




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	Percentage
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	of
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	Stock	 	 	 	 	 	No. of	 	Outstanding
	 	 	 	 	Stock	 	Class of	 	Certificated	 	Certificate	 	 	 	 	 	Pledged	 	Stock of the
	Grantor	 	Issuer	 	Stock	 	(Y/N)	 	No.	 	Par Value	 	Stock	 	Stock Issuer





     Pledged LLC Interests:



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	Percentage of
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	Outstanding
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	LLC Interests of
	 	 	 	 	Limited	 	 	 	 	 	 	 	 	 	 	 	 	 	the Limited
	 	 	 	 	Liability	 	Certificated	 	Certificate No.	 	No. of Pledged	 	Liability
	Grantor	 	 	 	Company	 	(Y/N)	 	(if any)	 	Units	 	Company





     Pledged Partnership Interests:



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	Type of	 	 	 	 	 	 	 	 	 	Percentage of
	 	 	 	 	 	 	 	 	Partnership	 	 	 	 	 	 	 	 	 	Outstanding
	 	 	 	 	 	 	 	 	Interests (e.g.,	 	 	 	 	 	 	 	 	 	Partnership
	 	 	 	 	 	 	 	 	general or	 	Certificated	 	Certificate No.	 	Interests of the
	Grantor	 	Partnership	 	limited)	 	(Y/N)	 	(if any)	 	Partnership





     Pledged Trust Interests:



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	Percentage of
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	Outstanding
	 	 	 	 	 	 	 	 	Class of Trust	 	Certificated	 	Certificate No.	 	Trust Interests
	Grantor	 	Trust	 	Interests	 	(Y/N)	 	(if any)	 	of the Trust





     Pledged Debt:



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	Original	 	Outstanding	 	 	 	 
	 	 	 	 	 	 	 	 	Principal	 	Principal	 	 	 	 
	Grantor	 	Issuer	 	Amount	 	Balance	 	Issue Date	 	Maturity Date





EXHIBIT 4.4-1














 









     Securities Account:



	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	Share of Securities	 	 	 	 	 
	Grantor	 	Intermediary	 	Account Number	 	Account Name





     Commodities Accounts:



	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Name of Commodities	 	 	 	 
	Grantor	 	Intermediary	 	Account Number	 	Account Name





     Deposit Accounts:



	 	 	 	 	 	 	 	 	 	 	 	 	 
	Grantor	 	Name of Depositary Bank	 	Account Number	 	Account Name





(B)




	 	 	 	 	 	 	 	 	 
	Grantor	 	Date of Acquisition	 	Description of Acquisition





(C)




	 	 	 	 	 
	 	 	 	 	Name of Issuer of Pledged LLC Interest/Pledged
	Grantor	 	Partnership Interest





EXHIBIT 4.4-2














 










SCHEDULE 4.5

TO PLEDGE AND SECURITY AGREEMENT




	 	 	 	 	 
	Grantor	 	Description of Material Contract





SCHEDULE 4.5-1














 










SCHEDULE 4.6

TO PLEDGE AND SECURITY AGREEMENT




	 	 	 	 	 
	Grantor	 	Description of Letters of Credit





SCHEDULE 4.6-1














 










SCHEDULE 4.7

TO PLEDGE AND SECURITY AGREEMENT




INTELLECTUAL PROPERTY





	(A)	 	Copyrights
	 
	(B)	 	Copyright Licenses
	 
	(C)	 	Patents
	 
	(D)	 	Patent Licenses
	 
	(E)	 	Trademarks
	 
	(F)	 	Trademark Licenses
	 
	(G)	 	Trade Secret Licenses
	 
	(H)	 	Intellectual Property Exceptions





SCHEDULE 4.7-1














 










SCHEDULE 4.8

TO PLEDGE AND SECURITY AGREEMENT




	 	 	 	 	 
	Grantor	 	Commercial Tort Claims





SCHEDULE 4.8-1














 









EXHIBIT A

TO PLEDGE AND SECURITY AGREEMENT




PLEDGE SUPPLEMENT




     This PLEDGE SUPPLEMENT, dated [mm/dd/yy], is delivered by [NAME OF GRANTOR] a [NAME OF STATE
OF INCORPORATION] [Corporation] (the
“Grantor”) pursuant to the Pledge and Security Agreement,
dated as of February 28, 2007 (as it may be from time to time amended, restated, modified or
supplemented, the “Security Agreement”), among [NAME OF COMPANY], the other Grantors named therein,
and GOLDMAN SACHS CREDIT PARTNERS L.P., as the Collateral Agent. Capitalized terms used herein not
otherwise defined herein shall have the meanings ascribed thereto in the Security Agreement.



     Grantor hereby confirms the grant to the Collateral Agent set forth in the Security Agreement
of, and does hereby grant to the Collateral Agent, a security interest in all of Grantor’s right,
title and interest in and to all Collateral to secure the Secured Obligations, in each case whether
now or hereafter existing or in which Grantor now has or hereafter acquires an interest and
wherever the same may be located. Grantor represents and warrants that the attached Supplements to
Schedules accurately and completely set forth all additional information required pursuant to the
Security Agreement and hereby agrees that such Supplements to Schedules shall constitute part of
the Schedules to the Security Agreement.



     IN WITNESS WHEREOF, Grantor has caused this Pledge Supplement to be duly executed and
delivered by its duly authorized officer as of [mm/dd/yy].



	 	 	 	 	 
	 	[NAME OF GRANTOR]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



EXHIBIT A-1

















 








SUPPLEMENT TO SCHEDULE 4.1

TO PLEDGE AND SECURITY AGREEMENT



Additional Information:




	 	 	 
	(A)

	 	Full Legal Name, Type of Organization, Jurisdiction of Organization, Chief Executive
Office/Sole Place of Business (or Residence if Grantor is a Natural Person) and
Organizational Identification Number of each Grantor:






	 	 	 	 	 	 	 	 	 
	Full Legal Name

	 	Type of
Organization
	 	Jurisdiction of
Organization
	 	Chief Executive
Office/Sole Place
of Business (or
Residence if
Grantor is a
Natural Person)
	 	Organization ID.#






	 	 	 	 	 
	(B)	 	Other Names (including any Trade Name or Fictitious Business Name) under which each Grantor
has conducted business for the past five (5) years:
	 
	 	 	 	 
	 

	 	Full Legal Name
	 	Trade Name or Fictitious Business Name






	 	 	 	 	 	 	 
	(C)	 	Changes in Name, Jurisdiction of Organization, Chief Executive Office or Sole Place of
Business (or Principal Residence if Grantor is a Natural Person) and Corporate Structure
within past five (5) years:
	 
	 	 	 	 	 	 
	 

	 	Name of Grantor
	 	Date of Change
	 	Description of
Change






	 	 	 	 	 
	(D)	 	Agreements pursuant to which any Grantor is found as debtor within past five (5) years:
	 
	 	 	 	 
	 

	 	Name of Grantor
	 	Description of Agreement
	 
	 	 	 	 
	(E)	 	Financing Statements:
	 
	 	 	 	 
	 

	 	Name of Grantor
	 	Filing Jurisdiction(s)






EXHIBIT A-2









 









SUPPLEMENT TO SCHEDULE 4.2

TO PLEDGE AND SECURITY AGREEMENT



Additional Information:




			
	 
	Name of Grantor
	 	Location of Equipment and Inventory
	 






EXHIBIT A-3









 









SUPPLEMENT TO SCHEDULE 4.4

TO PLEDGE AND SECURITY AGREEMENT




Additional Information:




(A)




Pledged Stock:




Pledged Partnership Interests:




Pledged LLC Interests:




Pledged Trust Interests:




Pledged Debt:




Securities Account:




Commodities Accounts:




Deposit Accounts:




(B)




	 	 	 	 	 	 	 
	 

	 	Name of Grantor
	 	Date of Acquisition
	 	Description of Acquisition






(C)




	 	 	 	 	 
	 

	 	Name of Grantor
	 	Name of Issuer of Pledged LLC Interest/Pledged
Partnership Interest
	 







EXHIBIT A-4











 









SUPPLEMENT TO SCHEDULE 4.5

TO PLEDGE AND SECURITY AGREEMENT



Additional Information:




	 	 	 	 	 
	Name of Grantor

	 	 	 	Description of Material Contract
	 

	 	 	 	 





EXHIBIT A-5




 









 












SUPPLEMENT TO SCHEDULE 4.6

TO PLEDGE AND SECURITY AGREEMENT




	 	 	 	 	 
	Additional Information:
	 	 	 	 
	 
	 	 	 	 
	Name of Grantor

	 	 	 	Description of Letters of Credit
	 

	 	 	 	 





EXHIBIT A-6





 









 












SUPPLEMENT TO SCHEDULE 4.7

TO PLEDGE AND SECURITY AGREEMENT



Additional Information:



(A) Copyrights



(B) Copyright Licenses



(C) Patents



(D) Patent Licenses



(E) Trademarks



(F) Trademark Licenses



(G) Trade Secret Licenses



(H) Intellectual Property Exceptions




EXHIBIT A-7





 









 












SUPPLEMENT TO SCHEDULE 4.8

TO PLEDGE AND SECURITY AGREEMENT




	 	 	 	 	 
	Additional Information:
	 	 	 	 
	 
	 	 	 	 
	Name of Grantor

	 	 	 	Commercial Tort Claims
	 

	 	 	 	 





EXHIBIT A-8





 











 









EXHIBIT B




TO PLEDGE AND SECURITY AGREEMENT




UNCERTIFICATED SECURITIES CONTROL AGREEMENT




     This Uncertificated Securities Control Agreement dated as of [                    ], 20[      ] (as amended,
supplemented or otherwise modified from time to time, this
“Agreement”) among [                                ]
(the “Pledgor”), Goldman Sachs Credit Partners L.P, as collateral agent for the First Lien
Claimholders (the “First Lien Collateral Agent”), CapitalSource Finance LLC, as collateral agent
for the Second Lien Claimholders (the “Second Lien Collateral Agent”; and together with the First
Lien Collateral Agent, the “Collateral Agents”) and [                    ], a [                    ] [corporation] (the
“Issuer”). Capitalized terms used but not defined herein shall have the meaning assigned in the
Intercreditor Agreement dated [as of the date hereof] as amended, restated, supplemented or
otherwise modified from time to time, among the Pledgor, the other Grantors party thereto and the
Collateral Agents (the “Intercreditor Agreement”). All references herein to the “UCC” shall mean
the Uniform Commercial Code as in effect in the State of New York.



     Section 1. Registered Ownership of Shares. The Issuer hereby confirms and agrees that as of the
date hereof the Pledgor is the registered owner of
[                    ]
shares of the Issuer’s [common]
stock (the “Pledged Shares”) and the Issuer shall not change the registered owner of the Pledged
Shares without the prior written consent of the Collateral Agent.



     Section 2. Instructions. If at any time the Issuer shall receive instructions originated by the
First Lien Collateral Agent relating to the Pledged Shares, the Issuer shall comply with such
instructions without further consent by the Pledgor or any other person. If at any time the Issuer
shall receive instructions originated by the Second Lien Collateral Agent relating to the Pledges
Shares, the Issuer shall comply with such instructions without further consent by the Pledgor or
any other person; provided that, prior to receipt by the Issuer of a Notice of Termination of First
Lien Obligations in the form of Exhibit A attached hereto (“Notice of Termination of First Lien
Obligations”) sent by the First Lien Collateral Agent, the Issuer shall not comply with any
entitlement order issued by the Second Lien Collateral Agent without the written consent of the
First Lien Collateral Agent.



     Section 3. Additional Representations and Warranties of the Issuer. The Issuer hereby represents
and warrants to the Collateral Agents:



     (a) It has not entered into, and until the termination of this agreement will not enter into, any
agreement with any other person relating to the Pledged Shares pursuant to which it has agreed to
comply with instructions issued by such other person; and



     (b) It has not entered into, and until the termination of this agreement will not enter into, any
agreement with the Pledgor or the Collateral Agents purporting to limit or condition the obligation
of the Issuer to comply with Instructions as set forth in Section 2 hereof.



     (c) Except for the claims and interest of the First Lien Collateral Agent, the Second Lien
Collateral Agent and of the Pledgor in the Pledged Shares, the Issuer does not know of any claim
to, or interest in, the Pledged Shares. If any person asserts any lien, encumbrance or adverse
claim (including any writ, garnishment, judgment, warrant of attachment, execution or similar
process) against the Pledged Shares, the Issuer will promptly notify the Collateral Agents and the
Pledgor thereof.



EXHIBIT B-1





 









 












     (d) This Uncertificated Securities Control Agreement is the valid and legally binding obligation
of the Issuer.



     Section 4. Choice of Law. This Agreement shall be governed by the laws of the State of [New
York].



     Section 5. Conflict with Other Agreements. In the event of any conflict between this Agreement
(or any portion thereof) and any other agreement now existing or hereafter entered into, the terms
of this Agreement shall prevail. No amendment or modification of this Agreement or waiver of any
right hereunder shall be binding on any party hereto unless it is in writing and is signed by all
of the parties hereto.



     Section 6. Voting Rights. Until such time as the First Lien Collateral Agent (or, following
receipt by the Issuer of a Notice of Termination of First Lien Obligations sent by the First Lien
Collateral Agent, the Second Lien Collateral Agent) shall otherwise instruct the Issuer in writing
in accordance with the terms of the Pledge and Security Agreement dated as of the date hereof or
the Second Lien Pledge and Security Agreement dated as of the date hereof (the “Security
Agreement”), the Pledgor shall have the right to vote the Pledged Shares.



     Section 7. Successors; Assignment. The terms of this Agreement shall be binding upon, and shall
inure to the benefit of, the parties hereto and their respective corporate successors or heirs and
personal representatives who obtain such rights solely by operation of law. The Collateral Agents
may assign their respective rights hereunder only with the express written consent of the Issuer
and by sending written notice of such assignment to the Pledgor.



     Section 8. Indemnification of Issuer. The Pledgor and the Collateral Agents hereby agree that (a)
the Issuer is released from any and all liabilities to the Pledgor and the Collateral Agents
arising from the terms of this Agreement and the compliance of the Issuer with the terms hereof,
except to the extent that such liabilities arise from the Issuer’s negligence and (b) the Pledgor,
its successors and assigns shall at all times indemnify and save harmless the Issuer from and
against any and all claims, actions and suits of others arising out of the terms of this Agreement
or the compliance of the Issuer with the terms hereof, except to the extent that such arises from
the Issuer’s negligence, and from and against any and all liabilities, losses, damages, costs,
charges, counsel fees and other expenses of every nature and character arising by reason of the
same, until the termination of this Agreement.



     Section 9. Notices. Any notice, request or other communication required or permitted to be given
under this Agreement shall be in writing and deemed to have been properly given when delivered in
person, or when sent by telecopy or other electronic means and electronic confirmation of error
free receipt is received or two (2) days after being sent by certified or registered United States
mail, return receipt requested, postage prepaid, addressed to the party at the address set forth
below.



	 	 	 	 	 
	 

	 	Pledgor:
	 	[Name and Address of Pledgor]
	 

	 	 	 	Attention: [                                        ]
	 

	 	 	 	Telecopier: [                                        ]
	 
	 	 	 	 
	 

	 	First Lien Collateral Agent:
	 	Goldman Sachs Credit Partners L.P.
	 

	 	 	 	1 New York Plaza
	 

	 	 	 	New York, NY 10004
	 

	 	 	 	Attention: Elizabeth Fischer and Rob Schatzman






EXHIBIT B-2





 









 












	 	 	 	 	 
	 

	 	 	 	Telecopier: (212) 902-3000
	 
	 

	 	Second Lien Collateral Agent
	 	CapitalSource Finance LLC
	 

	 	 	 	4445 Willard Avenue,
12th Floor
	 

	 	 	 	Chevy Chase, MD 20815
	 

	 	 	 	Attention: Special Investments Group, Portfolio
	 

	 	 	 	Manager
	 

	 	 	 	Telephone: 301-841-2700
	 

	 	 	 	Fax: 301-841-2340
	 
	 	 	 	 
	 

	 	Issuer:
	 	[Insert Name and Address of Issuer]
	 

	 	 	 	Attention: [                                        ]
	 

	 	 	 	Telecopier: [                                        ]






     Any party may change its address for notices in the manner set forth above.



     Section 10. Termination. The obligations of the Issuer to the Collateral Agents pursuant to this
Control Agreement shall continue in effect until the security interests of the Collateral Agents in
the Pledged Shares have been terminated pursuant to the terms of the Security Agreement and the
Collateral Agents have notified the Issuer of such termination in writing. The Collateral Agents
each agree to provide Notice of Termination in substantially the form of Exhibit A hereto to the
Issuer upon the request of the Pledgor on or after the termination of both Collateral Agents’
security interest in the Pledged Shares pursuant to the terms of the Security Agreement. The
termination of this Control Agreement shall not terminate the Pledged Shares or alter the
obligations of the Issuer to the Pledgor pursuant to any other agreement with respect to the
Pledged Shares.



     Section 11. Counterparts. This Agreement may be executed in any number of counterparts, all
of which shall constitute one and the same instrument, and any party hereto may execute this
Agreement by signing and delivering one or more counterparts.



     Section 12. Relationship Between Parties. Notwithstanding anything herein to the contrary, the
lien and security interest granted to the Second Lien Collateral Agent pursuant to this Agreement
and the exercise of any right or remedy by the Second Lien Collateral Agent hereunder are subject
to the provisions of the Intercreditor Agreement. In the event of any conflict between the terms of
the Intercreditor Agreement and this Agreement, the terms of the Intercreditor Agreement shall
govern and control.



	 	 	 	 	 
	 	[NAME OF PLEDGOR],

as Pledgor

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



EXHIBIT B-3






 









 












	 	 	 	 	 
	 	GOLDMAN SACHS CREDIT PARTNERS L.P.,

as First Lien Collateral Agent

 	 
	 	By:  	 	 
	 	 	Authorized Signatory 	 
	 	 	 	 
	 
	 	CAPITALSOURCE FINANCE LLC,

as Second Lien Collateral Agent

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	[NAME OF ISSUER],

as Issuer

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



EXHIBIT B-4





 











 








EXHIBIT A




TO UNCERTIFICATED SECURITIES CONTROL AGREEMENT




NOTICE OF TERMINATION OF FIRST LIEN OBLIGATIONS




[Issuer]



Re:   Uncertificated Securities Control Agreement dated as of                    , 200      (as amended, restated,
supplemented or otherwise modified from time to time, the
“Control Agreement”) by and among [NAME
OF PLEDGOR] (the “Company”), GOLDMAN SACHS CREDIT PARTNERS L.P., as First Lien Collateral Agent (in
such capacity, the “First Lien Collateral Agent”), CAPITALSOURCE FINANCE LLC, as Second Lien
Collateral Agent (in such capacity, the “Second Lien
Collateral Agent”) and [NAME OF FINANCIAL
ISSUER].




Ladies and Gentlemen:




     You
are hereby notified that there has been a Discharge of First Lien Obligations. You are
hereby instructed that you may comply instructions originated by the Second Lien Collateral Agent
regarding the Pledged Shares without our consent, the consent of the Company or the
consent of any other person.



     Capitalized terms used but not defined herein shall have the meanings set forth in the Control
Agreement.



	 	 	 	 	 
	 	Sincerely,
 	 
	 
	 	
GOLDMAN SACHS CREDIT PARTNERS L.P., 

as First Lien Collateral Agent

 	 
	 	By:  	 	 
	 	 	Authorized Signatory 	 
	 	 	 	 
	 



cc: Capital Source [Pledgor]




EXHIBIT B-A-1





 









 











Exhibit A




[Letterhead of applicable Collateral Agent]



[Date]



[Name and Address of Issuer]

Attention: [                                        ]




Re: Termination of Control Agreement




     You are hereby notified that the Uncertificated Securities Control Agreement between you,
[Name of Pledgor] (the “Pledgor”) and the undersigned (a copy of which is attached) is terminated
and you have no further obligations to the undersigned pursuant to such Agreement. Notwithstanding
any previous instructions to you, you are hereby instructed to accept all future directions with
respect to Pledged Shares (as defined in the Uncertificated Securities Control Agreement) from the
Pledgor. This notice terminates any obligations you may have to the undersigned with respect to
the Pledged Shares, however nothing contained in this notice shall alter any obligations which you
may otherwise owe to the Pledgor pursuant to any other agreement.



     You
are instructed to deliver a copy of this notice by facsimile transmission to the Pledgor.



	 	 	 	 	 
	 	Very truly yours, 	 
	 
	 	
[GOLDMAN SACHS CREDIT PARTNERS L.P.,
as First Lien Collateral Agent

 	 
	 	By:  	 	 
	 	 	Authorized Signatory] 	 
	 	 	 	 
	 
	 	[CAPITALSOURCE FINANCE LLC,

as Second Lien Collateral Agent

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:	] 	 
	 



EXHIBIT B-A-2



 









 








EXHIBIT C




TO PLEDGE AND SECURITY AGREEMENT




SECURITIES ACCOUNT CONTROL AGREEMENT




     This Securities Account Control Agreement dated as of [                    ], 20[     ] (as amended,
supplemented or otherwise modified from time to time, this
“Agreement”)
among[                                        ]
(the “Debtor”), GOLDMAN SACHS CREDIT PARTNERS L.P., as collateral agent for
the First Lien Claimholders (the “First Lien Collateral Agent”),[                                        ], as collateral agent for the Second Lien Claimholders (the “Second Lien
Collateral Agent” and together with the First Lien Collateral Agent, the “Collateral Agents”) and
CAPITALSOURCE FINANCE LLC, in its capacity as a “securities intermediary” as defined in Section
8-102 of the UCC (in such capacity, the “Securities Intermediary”). Capitalized terms used but not
defined herein shall have the meaning assigned thereto in the Intercreditor Agreement, dated [as of
the date hereof], among the Debtor, the other Grantors party thereto and the Collateral Agent (as
amended, restated, supplemented or otherwise modified from time to time, the “Intercreditor
Agreement”). All references herein to the “UCC” shall mean the Uniform Commercial Code as in effect
in the State of New York.



     Section 1. Priority of Lien. Pursuant to that certain First Lien Pledge and Security
Agreement dated as of February 28, 2007 among the Debtor, the other grantors party thereto and the
First Lien Collateral Agent (as amended, restated, supplemented or otherwise modified from time to time, the “First Lien Security Agreement”) and that certain Second Lien Pledge and Security
Agreement dated as of February 28, 2007 among the Debtor, the other grantors party thereto and the
Second Lien Collateral Agent (as amended, restated, supplemented or otherwise modified
from time to time, the “Second Lien Security Agreement”; and together with the First Lien Security Agreement, the “Security Agreement”), the Debtor has granted a security interest in
all of the Debtor’s rights in the Securities Account referred to in Section 2 below to each of the
First Lien Collateral Agent and the Second Lien Collateral Agent, respectively. The First Lien
Collateral Agent and Second Lien Collateral  Agent, the Debtor and the
Securities Intermediary are entering into this Agreement to perfect each of the First Lien
Collateral Agent and the Second Lien Collateral Agent’s security interest in such Securities
Account. As between the First Lien Collateral Agent and the Second Lien Collateral Agent, the First
Lien Collateral Agent shall have a first priority security interest in such Securities Account and
the Second Lien Collateral Agent shall have a second priority security interest in such Securities
Account in accordance with the Intercreditor Agreement. The Securities Intermediary hereby
acknowledges that it has received notice of the security interests of the First Lien Collateral
Agent and the Second Lien Collateral Agent in such Securities Account and hereby acknowledges and
consents to such liens.



     Section 2. Establishment of Securities Account. The Securities Intermediary hereby confirms
and agrees that:



     (a) The Securities Intermediary has established account number [IDENTIFY ACCOUNT NUMBER] in
the name “[IDENTIFY EXACT TITLE OF ACCOUNT]” (such account and any successor account, the
“Securities Account”) and the Securities Intermediary shall not change the name or account number
of the Securities Account without the prior written consent of (i) prior to delivery of a Notice of
Termination of the First Lien Obligations sent by the First Lien Collateral Agent in the form of
Exhibit A attached hereto (“Notice of Termination of First Lien Obligations”), the First Lien
Collateral Agent; (ii) subsequent to deliver of a Notice of Termination of First Lien Obligations
sent by the First Lien Collateral Agent, the Second Lien Collateral Agent; and (iii) prior to
delivery pursuant to Section 9(a) of a Notice of Sole Control



EXHIBIT C-A-1



 









 







delivered by the First Lien Collateral Agent or Second Lien Collateral Agent, as applicable, in
substantially the form set forth in Exhibit B attached here to (“Notice of Sole Control”), the
Debtor.




     (b) All securities or other property underlying any financial assets credited to the
Securities Account shall be registered in the name of the Securities Intermediary, indorsed to the
Securities Intermediary or in blank or credited to another securities account maintained in the
name of the Securities Intermediary and in no case will any financial asset credited to the
Securities Account be registered in the name of the Debtor, payable to the order of the Debtor or
specially indorsed to the Debtor except to the extent the foregoing have been specially indorsed to
the Securities Intermediary or in blank;



     (c) All property delivered to the Securities Intermediary pursuant to the Security Agreement will be promptly credited to the Securities Account; and



     (d) The Securities Account is a “securities account” within the meaning of Section 8-501 of the UCC.



     Section 3. “Financial Assets” Election. The Securities Intermediary hereby agrees that each
item of property (including, without limitation, any investment property, financial asset,
security, instrument, general intangible or cash) credited to the Securities Account shall be
treated as a “financial asset” within the meaning of Section 8-102(a)(9) of the UCC.



     Section 4. Control of the Securities Account. (a) If at any time the Securities Intermediary
shall receive any order from the First Lien Collateral Agent directing transfer or
redemption of any financial asset credited to the Securities Account, the Securities Intermediary
shall comply with such entitlement order without further consent by the Debtor
or any other person. If at any time the Securities Intermediary shall receive any entitlement order
from the Second Lien Collateral Agent directing transfer or redemption of any
financial asset credited to the Securities Account, the Securities Intermediary shall comply with such entitlement order without further consent by the Debtor or any
other person; provided that, prior to receipt by the Securities Intermediary of a Notice of
Termination of First Lien Obligations sent by the First Lien Collateral Agent, the Securities
Intermediary shall not comply with any entitlement order issued by the Second Lien Collateral Agent
without the written consent of the First Lien Collateral Agent. The Securities Intermediary shall
comply with entitlement orders from the Debtor directing transfer or redemption of any financial
asset relating to the Securities Account until such time as the Securities Intermediary has
received a Notice of Sole Control delivered pursuant to Section 9(a). Until such time as the
Securities Intermediary has received a Notice of Sole Control delivered under Section 9(a), the
Securities Intermediary shall be entitled to distribute to the Debtor all income on the financial
assets in the Securities Account. If the Debtor is otherwise entitled to issue entitlement orders
and such orders conflict with any entitlement order issued by the First Lien Collateral Agent or
the Second Lien Collateral Agent (either with the written consent of the First Lien Collateral
Agent or following the receipt by Securities Intermediary of a Notice of Termination of First Lien
Obligations sent by the First Lien Collateral Agent), if applicable, the Securities Intermediary
shall follow the orders issued by the applicable Collateral Agent.



     (b) Each Collateral Agent agrees that, unless and until an Event of Default (as defined in
the Intercreditor Agreement) has occurred and is continuing, it will neither (1) direct or
instruct, or deliver any entitlement order to, the Securities Intermediary in any respect
regarding the Securities Account nor (2) deliver a Notice of Sole Control.



EXHIBIT C-A-2




 









 











     Section 5. Subordination of Lien; Waiver of Set-Off. In the event that the Securities
Intermediary has or subsequently obtains by agreement, by operation of law or otherwise a security
interest in the Securities Account or any security entitlement credited thereto, the Securities
Intermediary hereby agrees that such security interest shall be subordinate to the security
interest of the Collateral Agent. The financial assets and other items deposited to the Securities
Account will not be subject to deduction, set-off, banker’s lien, or any other right in favor of
any person other than the Collateral Agent (except that the Securities Intermediary may set off (i)
all amounts due to the Securities Intermediary in respect of customary fees and expenses for the
routine maintenance and operation of the Securities Account and (ii) the face amount of any checks
which have been credited to such Securities Account but are subsequently returned unpaid because of
uncollected or insufficient funds).



     Section 6. Choice of Law. This Agreement and the Securities Account shall each be governed by
the laws of the State of [New York]. Regardless of any provision in any other agreement, for
purposes of the UCC, [New York] shall be deemed to be the Securities Intermediary’s jurisdiction
(within the meaning of Section 8-110 of the UCC) and the Securities Account (as well as the
securities entitlements related thereto) shall be governed by the laws of the State of [New York].



     Section 7. Conflict with Other Agreements.



     (a) In the event of any conflict between this Agreement (or any
portion thereof) and any other agreement now existing or hereafter entered into, the terms of this Agreement shall prevail;


     (b) No amendment or modification of this Agreement or waiver of any right hereunder shall be
binding on any party hereto unless it is in writing and is signed by all of the parties hereto;



     (c) The Securities Intermediary hereby confirms and agrees that:



          (i) There are no other control agreements entered into between the Securities
Intermediary and the Debtor with respect to the Securities Account;




          (ii) It has not entered into, and until the termination of this Agreement, will
not enter into, any agreement with any other person relating to the Securities
Account and/or any financial assets credited thereto pursuant to which it has agreed
to comply with entitlement orders (as defined in Section 8-102(a)(8) of the UCC) of
such other person; and




          (iii) It has not entered into, and until the termination of this Agreement,
will not enter into, any agreement with the Debtor or either Collateral Agent
purporting to limit or condition the obligation of the Securities Intermediary to
comply with entitlement orders as set forth in Section 3 hereof.




     Section 8. Adverse Claims. Except for the claims and interest of the Collateral Agents and of
the Debtor in the Securities Account, the Securities Intermediary does not know of any claim to, or
interest in, the Securities Account or in any “financial asset” (as defined in Section 8-102(a) of
the UCC) credited thereto. If any person asserts any lien, encumbrance or adverse claim (including
any writ, garnishment, judgment, warrant of attachment, execution or similar



EXHIBIT C-A-3



 









 







process) against the Securities Account or in any financial asset carried therein, the Securities
Intermediary will promptly notify the Collateral Agents and the Debtor thereof.




     Section 9. Maintenance of Securities Account. In addition to, and not in lieu of, the
obligation of the Securities Intermediary to honor entitlement orders as agreed in Section 3
hereof, the Securities Intermediary agrees to maintain the Securities Account as follows:



     (a) Notice of Sole Control. If at any time the First Lien Collateral Agent or, after delivery
of a Notice of Termination of First Lien Obligations sent by the First Lien Collateral Agent, the
Second Lien Collateral Agent, as the case may be, delivers to the Securities Intermediary a Notice
of Sole Control in substantially the form set forth in Exhibit B hereto, the Securities
Intermediary agrees that after receipt of such notice, it will cease to follow any instruction with
respect to the Securities Account from the Debtor.



     (b) Voting Rights. Until such time as the Securities Intermediary receives a Notice of Sole
Control pursuant to subsection (a) of this Section 9, the Debtor shall direct the Securities
Intermediary with respect to the voting of any financial assets credited to the Securities Account.



     (c) Permitted Investments. Until such time as the Securities Intermediary receives a Notice of
Sole Control signed by the applicable Collateral Agent, the Debtor shall direct the Securities
Intermediary with respect to the selection of investments to be made for the Securities Account;
provided, however, that the Securities Intermediary shall not honor any instruction to purchase any investments other than investments of a type described on Exhibit C hereto.



     (d) Statements and Confirmations. The Securities Intermediary will promptly send
copies of all statements, confirmations and other correspondence concerning the Securities Account
and/or any financial assets credited thereto simultaneously to each of the Debtor and
each Collateral Agent at the address for each set forth in Section 12 of this Agreement.



     (e) Tax Reporting. All items of income, gain, expense and loss
recognized in the Securities Account shall be reported to the Internal Revenue Service and all
state and local taxing authorities under the name and taxpayer identification number of the Debtor.



     Section 10. Representations, Warranties and Covenants of the Securities Intermediary. The
Securities Intermediary hereby makes the following representations, warranties and covenants:



     (a) The Securities Account has been established as set forth in Section 1 above and such
Securities Account will be maintained in the manner set forth herein until termination of this
Agreement; and



     (b) This Agreement is the valid and legally binding obligation of the Securities Intermediary.



     Section 11. Indemnification of Securities Intermediary. The Debtor and each Collateral Agent
hereby agree that (a) the Securities Intermediary is released from any and all liabilities to the
Debtor and such Collateral Agent arising from the terms of this Agreement and the compliance of the
Securities Intermediary with the terms hereof, except to the extent that such liabilities arise
from the Securities Intermediary’s negligence and (b) the Debtor, its successors and assigns shall
at all times indemnify and save harmless the Securities Intermediary from and against any and all
claims, actions and suits of others arising out of the terms of this Agreement



EXHIBIT C-A-4




 









 










or the compliance of the Securities Intermediary with the terms hereof, except to the extent that
such arises from the Securities Intermediary’s negligence, and from and against any and all
liabilities, losses, damages, costs, charges, counsel fees and other expenses of every nature and
character arising by reason of the same, until the termination of this Agreement.




     Section 12. Successors; Assignment. The terms of this Agreement shall be binding upon, and
shall inure to the benefit of, the parties hereto and their respective corporate successors or
heirs and personal representatives who obtain such rights solely by operation of law. Each
Collateral Agent may assign its rights hereunder only with the express written consent of the
Securities Intermediary and by sending written notice of such assignment to the Debtor.



     Section 13. Notices. Any notice, request or other communication required or permitted to be
given under this Agreement shall be in writing and deemed to have been properly given when
delivered in person, or when sent by telecopy or other electronic means and electronic confirmation
of error free receipt is received or two (2) days after being sent by certified or registered
United States mail, return receipt requested, postage prepaid, addressed to the party at the
address set forth below.



	 	 	 
	Debtor:

	 	c/o Rhône Capital LLC
	 

	 	5 Prince Gate
	 

	 	3rd Floor
	 

	 	Knightsbridge
	 

	 	London SW7 1QJ
	 

	 	Attention: Gianpiero Lenza
	 

	 	Facsimile: +44 207 761 1111
	 
	 	 
	 

	 	in each case, with a copy to:
	 
	 	 
	 

	 	Rhône Capital LLC
	 

	 	630 Fifth Avenue

27th Floor
	 

	 	New York,NY 10111
	 

	 	Attention: Andrew Oliver
	 

	 	Facsimile: (212) 218-6789
	 
	 	 
	 

	 	Arizona Chemical Company
	 

	 	Building 100
	 

	 	4600 Touchton Road E., Suite 1500
	 

	 	Jacksonville, FL 32246
	 

	 	Attention: Charles E. Nelson/Glenda Haynes
	 

	 	Facsimile: (904) 928-8771
	 
	 	 
	First Lien Collateral Agent:

	 	Goldman Sachs Credit Partners L.P.
	 

	 	1 New York Plaza
	 

	 	New York, NY 10004
	 

	 	Attention: Elizabeth Fischer and Rob Schatzman
	 

	 	Telecopier: (212) 902-3000
	 
	 	 
	Second Lien Collateral Agent:

	 	CapitalSource Finance LLC
	 

	 	4445 Willard Avenue, 12th Floor











EXHIBIT C-A-5









 











	 	 	 
	 

	 	Chevy Chase, MD 20815
	 

	 	Attention: Special Investments Group, Portfolio
	 

	 	Manager
	 

	 	Telephone: 301-841-2700
	 

	 	Fax: 301-841-2340






	 	 	 	 	 
	 

	 	Securities Intermediary:
	 	[Name and Address of Securities Intermediary]
	 

	 	 	 	Attention: [                                        ]
	 

	 	 	 	Telecopier: [                                        ]






     Any party may change its address for notices in the manner set forth above.



     Section 14. Termination. The obligations of the Securities Intermediary to the Collateral
Agents pursuant to this Agreement shall continue in effect until the security interest of both
Collateral Agents in the Securities Account has been terminated pursuant to the terms of the
Security Agreement and the Collateral Agents have notified the Securities Intermediary of such
termination in writing. The Collateral Agents agree to provide Notice of Termination in
substantially the form of Exhibit D hereto to the Securities Intermediary upon the request of the
Debtor on or after the termination of both Collateral Agents’ security interest in the Securities
Account pursuant to the terms of the Security Agreement, such Notice of Termination to be delivered
by the Second Lien Collateral Agent only after such notice has been delivered by the First Lien Collateral Agent. The termination of this Agreement shall not terminate the Securities
Account or alter the obligations of the Securities Intermediary to the Debtor pursuant to any other
agreement with respect to the Securities Account.



     Section 15. Counterparts. This Agreement may be executed in any number of counterparts,
all of which shall constitute one and the same instrument, and any party hereto may execute this
Agreement by signing and delivering one or more counterparts.



     Section 16. Relationship Between Parties. Notwithstanding anything herein to the contrary,
the lien and security interest granted to the Second Lien Collateral Agent pursuant to this
Agreement and the exercise of any right or remedy by the Second Lien Collateral Agent hereunder
are subject to the provisions of the Intercreditor Agreement. In the event of any conflict
between the terms of the Intercreditor Agreement and this Agreement, the terms of the
Intercreditor Agreement shall govern and control.



EXHIBIT C-A-6




 









 











     IN WITNESS WHEREOF, the parties hereto have caused this Securities Account Control Agreement
to be executed as of the date first above written by their respective officers thereunto duly
authorized.



	 	 	 	 	 
	 	[DEBTOR],

as Debtor

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	GOLDMAN SACHS CREDIT PARTNERS L.P.,

as First Lien Collateral Agent

 	 
	 	By:  	 	 
	 	 	Authorized Signatory 	 
	 	 	 	 
	 



	 	 	 	 	 
	 	CAPITALSOURCE FINANCE LLC,

as Second Lien Collateral Agent

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	[NAME OF SECURITIES
INTERMEDIARY], 

as Securities Intermediary

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 


EXHIBIT C-A-7


 









 










EXHIBIT A




TO SECURITIES ACCOUNT CONTROL AGREEMENT




NOTICE OF TERMINATION OF FIRST LIEN OBLIGATIONS



[Securities Intermediary]



Re: Securities Account Control Agreement dated as of___, 200___(as amended, restated,
supplemented or otherwise modified from time to time, the
“Control Agreement”) by and among [NAME
OF DEBTOR] (the “Company”), GOLDMAN SACHS CREDIT PARTNERS L.P., as First Lien Collateral Agent (in
such capacity, the “First Lien Collateral Agent”), CAPITALSOURCE FINANCE LLC, as Second Lien
Collateral Agent (in such capacity, the “Second Lien Collateral Agent”) and [NAME OF FINANCIAL
INSTITUTION] re securities account number                      and all financial assets credited
thereto (the “Account”).



Ladies and Gentlemen:





     You are hereby notified that there has been a Discharge of First Lien Obligations. You are
hereby instructed that upon receipt of a Notice of Sole Control under Section 9(a) of the
Control Agreement therefrom, you may comply with entitlement orders originated by the Second Lien Collateral Agent directing transfer or redemption of any financial asset relating to the
Account without our consent, the consent of the Company or the consent of any other person.



     Capitalized terms used but not defined herein shall have the meanings set forth in the Control Agreement.




	 	 	 	 	 
	 	

Sincerely,



GOLDMAN SACHS CREDIT PARTNERS L.P.,

as First Lien Collateral Agent

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



cc: Capital Source [Debtor]




EXHIBIT C-A-1




 









 











EXHIBIT B




TO SECURITIES ACCOUNT CONTROL AGREEMENT




[Letterhead of applicable Collateral Agent]



[Date]



[Name and Address of Securities Intermediary]

Attention: [                                        ]




Re: Notice of Sole Control



Ladies and Gentlemen:





     As
referenced in the Securities Account Control Agreement dated as of
[                    ], 20[___] among [Name of Debtor] (the “Debtor”), you and the undersigned (a copy of which is
attached), we hereby give you notice of our sole control over
securities account number[                                        ] (the “Securities Account”) and all financial assets credited thereto. You are hereby
instructed not to accept any direction, instructions or entitlement orders with respect to the
Securities Account or the financial assets credited thereto from any person other than the
undersigned, unless otherwise ordered by a court of competent jurisdiction.



     You are instructed to deliver a copy of this notice by facsimile transmission to the Debtor.



	 	 	 	 	 
	 	

Very truly yours,
 	 
	 
	 	
GOLDMAN SACHS CREDIT PARTNERS L.P.,

as First Lien Collateral Agent

 	 
	 	By:  	 	 
	 	 	Authorized Signatory 	 
	 	 	 	 
	 
	 	CAPITALSOURCE FINANCE LLC 

as Second Lien Collateral Agent

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



cc: [Name of Debtor]




EXHIBIT C-A-2



 









 








EXHIBIT C




TO SECURITIES ACCOUNT CONTROL AGREEMENT




Permitted Investments



Cash Equivalents (as defined in the Credit Agreement)



[Other Investments permitted pursuant to the Credit Agreement]




EXHIBIT C-B-1



 









 






EXHIBIT D




TO SECURITIES ACCOUNT CONTROL AGREEMENT




[Letterhead of applicable Collateral Agent]



[Date]



[Name and Address of Securities Intermediary]

Attention: [                                        ]




Re:
Termination of Securities Account Control Agreement




     You
are hereby notified that the Securities Account Control Agreement dated as of [                    ], 20[___] among you, [Name of Debtor] (the “Debtor”) and the undersigned (a copy of which
is attached) is terminated and you have no further obligations to the undersigned pursuant to such
Agreement. Notwithstanding any previous instructions to you, you are hereby instructed to accept
all future directions with respect to account number(s) [                                        ] from the Debtor. This
notice terminates any obligations you may have to the undersigned with respect to such account,
however nothing contained in this notice shall alter any obligations which you may otherwise owe to
the Debtor pursuant to any other agreement.



     You
are instructed to deliver a copy of this notice by facsimile transmission to the Debtor.



	 	 	 	 	 
	 
	 	Very truly yours,

 	 
	 
	 	
[GOLDMAN SACHS CREDIT PARTNERS L.P.,

as First Lien Collateral Agent

 	 
	 	By:  	 	 
	 	 	Authorized Signatory] 	 
	 	 	 	 
	 	[CAPITALSOURCE FINANCE LLC,

as Second Lien Collateral Agent

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  ]	 	 
	 



EXHIBIT C-C-1



 









 








EXHIBIT D




TO PLEDGE AND SECURITY AGREEMENT




DEPOSIT ACCOUNT CONTROL AGREEMENT




     This Deposit Account Control Agreement dated as of [                    ], 20[___] (as amended,
supplemented or otherwise modified from time to time, this
“Agreement”) among [                    ] (the “Debtor”), GOLDMAN SACHS CREDIT PARTNERS L.P., as collateral agent for the First
Lien Claimholders (the “First Lien Collateral Agent”), CAPITALSOURCE FINANCE LLC, as agent for the
Second Lien Claimholders (the “Second Lien Collateral Agent” and together with the First Lien
Collateral Agent, the “Collateral Agents”) and [                    ], in its capacity as a “bank” as defined in Section 9-102 of the UCC (in such
capacity, the “Financial Institution”). Capitalized terms used but not defined herein shall have
the meaning assigned thereto in the Intercreditor Agreement, dated [as of the date hereof], between
the Debtor, the other Grantors party thereto and the Collateral Agents (as amended, restated,
supplemented or otherwise modified from time to time, the “Intercreditor Agreement”). All
references herein to the “UCC” shall mean the Uniform Commercial Code as in effect in the State of
[New York].



     Section 1. Priority of Lien. Pursuant to that certain First Lien Pledge and Security
Agreement dated as of February 28, 2007, among the Debtor, the other grantors party thereto and the
First Lien Collateral Agent (as amended, restated, supplemented or otherwise modified from time to time, the “First Lien Security Agreement”) and that certain Second Lien Pledge and Security
Agreement dated as of February 28, 2007, among the Debtor, the other grantors party thereto and the
Second Lien Collateral Agent (as amended, restated, supplemented or otherwise modified
from time to time, the “Second Lien Security Agreement”; and together with the First Lien Security Agreement, the “Security Agreements”), the Debtor has granted a security interest in
all of the Debtor’s rights in the Deposit Account referred to in Section 2 below to each of the
First Lien Collateral Agent and the Second Lien Collateral Agent, respectively. The First Lien
Collateral Agent and Second Lien Collateral  Agent, the Debtor and the
Financial Institution are entering into this Agreement to perfect each of the First Lien Collateral
Agent and the Second Lien Collateral Agent’s security interest in such Deposit Account. As between
the First Lien Collateral Agent and the Second Lien Collateral Agent, the First Lien Collateral
Agent shall have a first priority security interest in such Deposit Account and the Second Lien
Collateral Agent shall have a second priority security interest in such Deposit Account in
accordance with the Intercreditor Agreement. The Financial Institution hereby acknowledges that it
has received notice of the security interests of the First Lien Collateral Agent and the Second
Lien Collateral Agent in such Deposit Account and hereby acknowledges and consents to such liens.



     Section 2. Establishment of Deposit Account. The Financial Institution hereby confirms and
agrees that:



     (a) The Financial Institution has established account number [IDENTIFY ACCOUNT NUMBER] in the
name “[IDENTIFY EXACT TITLE OF ACCOUNT]” (such account and any successor account, the “Deposit
Account”) and the Financial Institution shall not change the name or account number of the Deposit
Account without the prior written consent of (i) prior to delivery of a Notice of Termination of
First Lien Obligations sent by the First Lien Collateral Agent in the form of Exhibit A attached
hereto (“Notice of Termination of First Lien Obligations”), the First Lien Collateral Agent, (ii)
subsequent to delivery of a Notice of Termination of First Lien Obligations sent by the First Lien
Collateral Agent, the Second Lien Collateral Agent, and (iii) prior to delivery pursuant to Section
8(a) of a Notice of Sole Control



EXHIBIT D-1



 









 







delivered by the First Lien Collateral Agent or Second Lien Collateral Agent, as applicable, in
substantially the form set forth in Exhibit B hereto
(“Notice of Sole Control”), the Debtor; and




     (b) The Deposit Account is a “deposit account” within the meaning of Section 9-102(a)(29) of
the UCC.



     Section 3. Control of the Deposit Account. (a) If at any time the Financial Institution shall
receive any instructions originated by the First Lien Collateral Agent directing the disposition of
funds in the Deposit Account, the Financial Institution shall comply with such instructions without
further consent by the Debtor or any other person. If at any time the Financial Institution shall
receive any instructions originated by the Second Lien Collateral Agent directing the disposition
of funds in the Deposit Account, the Financial Institution shall comply with such instructions
without further consent by the Debtor or any other person;
provided that, prior to receipt by the
Financial Institution of a Notice of Termination of First Lien Obligations sent by the First Lien
Collateral Agent, the Financial Institution shall not comply with instructions originated by the
Second Lien Collateral Agent without the written consent of the First Lien Collateral Agent. The
Financial Institution hereby acknowledges that it has received notice of the security interest of
the Collateral Agents in the Deposit Account and hereby acknowledges and consents to such lien and
shall comply with instructions from the Debtor directing the disposition of funds in the Deposit
Account until such time as the Financial Institution has received a Notice of Sole Control
delivered pursuant to Section 8(a). If the Debtor is otherwise entitled to issue instructions and
such instructions conflict with any instructions issued the First Lien Collateral Agent or the Second Lien Collateral Agent (either with the written
consent of the First Lien Collateral Agent or following the receipt by the Financial Institution of
a Notice of Termination of First Lien Obligations sent by the First Lien Collateral
Agent), if applicable, the Financial Institution shall follow the instructions issued by the
applicable Collateral Agent.



     (b Each Collateral Agent agrees that, unless and until an Event of Default (as defined
in the Intercreditor Agreement) has occurred and  is
continuing, it will neither (1) direct or instruct the Financial Institution in any respect
regarding the Deposit Account nor (2) deliver a Notice of Sole Control.



     Section 4. Subordination of Lien; Waiver of Set-Off. In the event that the Financial
Institution has or subsequently obtains by agreement, by operation of law or otherwise a security
interest in the Deposit Account or any funds credited thereto, the Financial Institution hereby
agrees that such security interest shall be subordinate to the security interest of the Collateral
Agent. Money and other items credited to the Deposit Account will not be subject to deduction,
set-off, banker’s lien, or any other right in favor of any person other than the Collateral Agent
(except that the Financial Institution may set off (i) all amounts due to the Financial Institution
in respect of customary fees and expenses for the routine maintenance and operation of the Deposit
Account and (ii) the face amount of any checks which have been credited to such Deposit Account but
are subsequently returned unpaid because of uncollected or insufficient funds).



     Section 5. Choice of Law. This Agreement and the Deposit Account shall each be governed by
the laws of the State of [New York]. Regardless of any provision in any other agreement, for
purposes of the UCC, [New York] shall be deemed to be the Financial Institution’s jurisdiction
(within the meaning of Section 9-304 of the UCC) and the Deposit Account shall be governed by the
laws of the State of [New York].



     Section 6. Conflict with Other Agreements.



EXHIBIT D-2





 









 











     (a) Subject to Section 15, in the event of any conflict between this Agreement (or any portion
thereof) and any other agreement now existing or hereafter entered into, the terms of this
Agreement shall prevail;



     (b) No amendment or modification of this Agreement or waiver of any right hereunder shall be
binding on any party hereto unless it is in writing and is signed by all of the parties hereto; and



     (c) The Financial Institution hereby confirms and agrees that:




     (i) There are no other agreements entered into between the Financial
Institution and the Debtor with respect to the Deposit Account [other than                     ]; and




     (ii) It has not entered into, and until the termination of this Agreement, will
not enter into, any agreement with any other person relating the Deposit Account
and/or any funds credited thereto pursuant to which it has agreed to comply with
instructions originated by such persons as contemplated by Section 9-104 of the UCC.



     Section 7. Adverse Claims. The Financial Institution does not know of any liens, claims or
encumbrances relating to the Deposit Account. If any person asserts any lien,encumbrance or adverse claim (including any writ, garnishment, judgment, warrant of attachment,
execution or similar process) against the Deposit Account, the Financial Institution will promptly
notify the Collateral Agent and the Debtor thereof.



     Section 8.
Maintenance of Deposit Account. In addition to,
and not in lieu of, the obligation of the Financial Institution to honor instructions as set forth
in Section 2 hereof, the Financial Institution agrees to maintain the Deposit Account as follows:



     (a) Notice
of Sole Control. If at any time the First Lien Collateral Agent, or after
delivery of a Notice of Termination of First Lien Obligations by the First Lien Collateral Agent,
the Second Lien Collateral Agent, as the case may be, delivers to the Financial Institution a
Notice of Sole Control in substantially the form set forth in Exhibit B hereto, the Financial
Institution agrees that after receipt of such notice, it will cease to follow any instruction with
respect to the Deposit Account from the Debtor.



     (b) Statements
and Confirmations. The Financial Institution will promptly send copies of all
statements, confirmations and other correspondence concerning the Deposit Account simultaneously to
each of the Debtor and each Collateral Agent at the address for each set forth in Section 11 of
this Agreement; and



     (c) Tax
Reporting. All interest, if any, relating to the Deposit Account, shall be reported to
the Internal Revenue Service and all state and local taxing authorities under the name and taxpayer
identification number of the Debtor.



     Section 9. Representations, Warranties and Covenants of the Financial Institution. The
Financial Institution hereby makes the following representations, warranties and covenants:



EXHIBIT D-3





 









 











     (a) The Deposit Account has been established as set forth in Section 1 and such Deposit
Account will be maintained in the manner set forth herein until termination of this Agreement; and



     (b) This Agreement is the valid and legally binding obligation of the Financial Institution.



     Section 10. Indemnification of Financial Institution. The Debtor and each Collateral Agent
hereby agree that (a) the Financial Institution is released from any and all liabilities to the
Debtor and Collateral Agent arising from the terms of this Agreement and the compliance of the
Financial Institution with the terms hereof, except to the extent that such liabilities arise from
the Financial Institution’s negligence and (b) the Debtor, its successors and assigns shall at all
times indemnify and save harmless the Financial Institution from and against any and all claims,
actions and suits of others arising out of the terms of this Agreement or the compliance of the
Financial Institution with the terms hereof, except to the extent that such arises from the
Financial Institution’s negligence, and from and against any and all liabilities, losses, damages,
costs, charges, counsel fees and other expenses of every nature and character arising by reason of
the same, until the termination of this Agreement.



     Section 11. Successors; Assignment. The terms of this Agreement shall be binding upon, and
shall inure to the benefit of, the parties hereto and their respective corporate successors or
heirs and personal representatives who obtain such rights solely by
operation of law. Each Collateral Agent may assign its rights
hereunder only with the express written consent of the
Financial Institution and by sending written notice of such assignment to the Debtor.



     Section 12. Notices. Any notice, request or other communication required or permitted to be
given under this Agreement shall be in writing and deemed to have been properly
given when delivered in person, or when sent by telecopy or other electronic
means and electronic confirmation of error free receipt is received or two (2)
days after being sent by certified or registered United States mail, return receipt requested, postage prepaid, addressed to the party at the address set forth below.




	 	 	 
	Debtor:

	 	[Name and Address of Debtor]
	 

	 	Attention: [                                        ]
	 

	 	Telecopier: [                                        ]
	 
	 	 
	First Lien Collateral Agent:

	 	Goldman Sachs Credit Partners L.P.
	 

	 	1 New York Plaza
	 

	 	New York, NY 10004
	 

	 	Attention: Elizabeth Fischer and Rob Schatzman
	 

	 	Telecopier: (212) 902-3000
	 
	 	 
	Second Lien Collateral Agent:

	 	CapitalSource Finance LLC
	 

	 	4445 Willard Avenue, 12th Floor
	 

	 	Chevy Chase, MD 20815
	 

	 	Attention: Special Investments Group, Portfolio
	 

	 	Manager
	 

	 	Telephone: (301) 841-2700
	 

	 	Fax: (301) 841-2340






EXHIBIT D-4



 









 







	 	 	 	 	 
	 

	 	Financial Institution:
	 	[Name and Address of Financial Institution]
	 

	 	 	 	Attention: [                                        ]
	 

	 	 	 	Telecopier: [                                        ]







	 	 	Any party may change its address for notices in the manner set forth above.





     Section 13. Termination. The obligations of the Financial Institution to the Collateral Agents
pursuant to this Agreement shall continue in effect until the security interest of the Collateral
Agents in the Deposit Account has been terminated pursuant to the terms of the Security Agreement
and the Collateral Agents have notified the Financial Institution of such termination in writing.
Each Collateral Agent agrees to provide Notice of Termination in substantially the form of Exhibit
A hereto to the Financial Institution upon the request of the Debtor on or after the termination of
both Collateral Agents’ security interest in the Deposit Account pursuant to the terms of the
Security Agreement, such notice to be delivered by the Second Lien Collateral Agent only after such
delivery by the First Lien Collateral Agent. The termination of this Agreement shall not terminate
the Deposit Account or alter the obligations of the Financial Institution to the Debtor pursuant to
any other agreement with respect to the Deposit Account.



     Section 14. Counterparts. This Agreement may be executed in any number of counterparts, all
of which shall constitute one and the same instrument, and any party hereto may execute this
Agreement by signing and delivering one or more counterparts.



     Section 15. Relationship Between Parties. Notwithstanding anything herein to the contrary,
the lien and security interest granted to the Second Lien Collateral Agent pursuant to
this Agreement and the exercise of any right or remedy by the Second Lien Collateral
Agent hereunder are subject to the provisions of the Intercreditor Agreement. In the event of any
conflict between the terms of the Intercreditor Agreement and this Agreement, the terms of the
Intercreditor Agreement shall govern and control.




	 
	 	 	EXHIBIT D-5




 









 







     IN WITNESS WHEREOF, the parties hereto have caused this Deposit Account Control Agreement to
be executed as of the date first above written by their respective officers thereunto duly
authorized.



	 	 	 	 	 
	 	[DEBTOR], 

as Debtor

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	GOLDMAN SACHS CREDIT PARTNERS L.P., 

as First Lien Collateral Agent

 	 
	 	By:  	 	 
	 	 	Authorized Signatory 	 
	 



	 	 	 	 	 
	 	CAPITALSOURCE FINANCE LLC,

as Second Lien Collateral Agent

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	[NAME OF FINANCIAL INSTITUTION],

as Financial Institution

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



EXHIBIT D-6



 









 







EXHIBIT A




TO DEPOSIT ACCOUNT CONTROL AGREEMENT




NOTICE OF TERMINATION OF FIRST LIEN OBLIGATIONS



[Financial Institution]





			
	Re:  	 	Deposit Account Control Agreement dated as of [                    ], 200__ (as amended, restated,
supplemented or otherwise modified from time to time, the
“Control Agreement”) by and among [NAME
OF DEBTOR] (the “Company”), GOLDMAN SACHS CREDIT PARTNERS L.P., as First Lien Collateral Agent (in
such capacity, the “First Lien Collateral Agent”), CAPITALSOURCE FINANCE LLC, as Second Lien Collateral Agent (in such
capacity, the “Second Lien Collateral Agent”) and
[NAME OF FINANCIAL INSTITUTION] re deposit account number                                          in the name of
                                         (the “Account”).




Ladies and Gentlemen:





     You are hereby notified that there has been a Discharge of First Lien Obligations.
You are hereby instructed that upon receipt of a Notice of Sole Control under Section 8(a) of the Control Agreement therefrom, you may comply with instructions issued by the Second Lien Collateral
Agent directing disposition of funds in the Account without our consent, the consent of the Company
or the consent of any other person.



     Capitalized terms used but not defined herein shall have the meanings set forth in the
Control Agreement.



	 	 	 	 	 
	 	Sincerely,
 	 
	 
	 	
GOLDMAN SACHS CREDIT PARTNERS L.P.,

as First Lien Collateral Agent

 	 
	 	By:  	 	 
	 	 	Authorized Signatory 	 
	 	 	 	 
	 



cc: Capital Source [COMPANY]




EXHIBIT D-A-1




 









 










EXHIBIT B




TO DEPOSIT ACCOUNT CONTROL AGREEMENT




[Letterhead of applicable Collateral Agent]



[Date]



[Name and Address of Financial Institution]

Attention: [                                        ]




Re: Notice of Sole Control


Ladies and Gentlemen:





     As referenced in the Deposit Account Control Agreement dated as of [                    ], 20[___] among
[Name of Debtor] (the “Debtor”), you and the undersigned (a copy of which is attached), we hereby
give you notice of our sole control over deposit account number [                                        ] (the “Deposit
Account”) and all financial assets credited thereto. You are hereby instructed not to accept any
direction, instructions or entitlement orders with respect to the Deposit Account or the financial
assets credited thereto from any person other than the undersigned, unless otherwise ordered by a
court of competent jurisdiction.



     You are instructed to deliver a copy of this notice by facsimile transmission to the Debtor.



	 	 	 	 	 
	 	Very truly yours,
 	 
	 
	 	
[GOLDMAN SACHS CREDIT PARTNERS L.P.,

as First Lien Collateral Agent

 	 
	 	By:  	 	 
	 	 	Authorized Signatory] 	 
	 	 	 	 
	 
	 	[CAPITALSOURCE FINANCE LLC 

as Second Lien Collateral Agent

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  ]	 	 
	 



cc: [Name of Debtor]




EXHIBIT D-B-1



 









 







EXHIBIT C




TO DEPOSIT ACCOUNT CONTROL AGREEMENT




[Letterhead of applicable Collateral Agent]



[Date]



[Name and Address of Financial Institution]

Attention: [                                        ]




Re: Termination of Deposit Account Control Agreement



     You are hereby notified that the Deposit Account Control
Agreement dated as of [                    ], 20[___] among [Name of Debtor] (the “Debtor”), you and the undersigned (a copy of
which is attached) is terminated and you have no further obligations to the undersigned pursuant to
such Agreement. Notwithstanding any previous instructions to you, you are hereby instructed to
accept all future directions with respect to account number(s) [                                        ] from the Debtor.
This notice terminates any obligations you may have to the undersigned with respect to such
account, however nothing contained in this notice shall alter any obligations which you may
otherwise owe to the Debtor pursuant to any other agreement.


     You are instructed to deliver a copy of this notice by facsimile transmission to the Debtor.



	 	 	 	 	 
	 	Very truly yours,
 	 
	 
	 	
[GOLDMAN SACHS CREDIT PARTNERS L.P.,

as First Lien Collateral Agent

 	 
	 	By:  	 	 
	 	 	Authorized Signatory] 	 
	 	 	 	 
	 
	 	[CAPITALSOURCE FINANCE LLC,

as Second Lien Collateral Agent

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  ]	 	 
	 



EXHIBIT D-C-1