EX-10.2






SECURITY AND PLEDGE AGREEMENT

dated as of

August 2, 2013

among

MITCHAM INDUSTRIES, INC.

THE GUARANTORS PARTY HERETO

and

HSBC BANK USA, N.A.,

not in its individual capacity, but solely as Administrative Agent

TABLE OF CONTENTS




Page




	 	 	 
	ARTICLE I DEFINITIONS
	1.01

1.02
	 	Definitions

Interpretation







	 	 	 
	ARTICLE II COLLATERAL
	2.01

2.02

2.03

2.04

2.05

2.06
	 	Grant of Security Interest

Termination of Security Interests

Partial Release of Collateral

Security Interest Absolute

Limit of Liability

Reinstatement







	 	 	 
	ARTICLE III PERFECTION OF SECURITY INTEREST
	3.01

3.02

3.03

3.04

3.05

3.06
	 	Perfection

Perfection of Additional Collateral

Intellectual Property Filings

Instruments

Further Assurances

Use of Collateral







	 	 	 
	ARTICLE IV REPRESENTATIONS AND WARRANTIES
	4.01

4.02

4.03

4.04

4.05

4.06

4.07

4.08
	 	Security Documents; Credit Agreement

Title

Chief Executive Office; Change of Name; Jurisdiction of Organization

Corporate Names; Prior Transactions

Records

Changes in Circumstances

[Intentionally omitted]

Title to Equity Interests








	 	4.09	 	Financing Statements and Other Filings; Maintenance of Perfected Security
Interest





	 	 	 
	4.10

4.11

4.12

4.13

4.14

4.15

4.16

4.17

4.18

4.19
	 	Deposit Accounts

Investment Property

Delivery of Certificated Securities Collateral

Perfection of Uncertificated Securities Collateral

Instruments and Tangible Chattel Paper

Electronic Chattel Paper and Transferable Records

Letters of Credit

Commercial Tort Claims

Intellectual Property

Collateral Information







	 	 	 
	ARTICLE V COVENANTS
	5.01

5.02

5.03

5.04

5.05

5.06

5.07

5.08

5.09

5.10

5.11

5.12

5.13

5.14
	 	Access to Records; Inspection of Collateral

Other Financing Statements and Liens

Reports

Adverse Claims

Prohibition of Certain Changes

Opinion of Counsel

Collateral Held by Others

Records

Collection of Accounts

Disposition of Collateral

Protection of Intellectual Property

Special Provisions Relating to Certain Collateral

Claims Against Collateral

Joinder of Additional Debtors







	 	 	 
	ARTICLE VI REMEDIES
	6.01

6.02

6.03

6.04

6.05

6.06

6.07

6.08

6.09

6.10

6.11

6.12
	 	Events of Default, Etc.

Deficiency

Private Sale

Application of Proceeds

Attorney-in-Fact

Expenses

Administrative Agent’s Right to Perform on Debtor’s Behalf

Custody and Preservation

Preservation of Rights

Rights of Secured Party

No Marshalling

Remedies Cumulative







	 	 	 
	ARTICLE VII MISCELLANEOUS
	7.01

7.02

7.03

7.04

7.05

7.06

7.07

7.08

7.09

7.10

7.11

7.12

7.13

7.14

7.15

7.16

7.17

7.18

7.19
	 	Waivers of Rights Inhibiting Enforcement

Notices

Assignment

Successors and Assigns

Amendment and Waiver

No Implied Waiver

Severability

Entire Agreement

Execution in Counterparts

Governing Law

Headings

Interpretation

Waiver of Jury Trial

Survival, Etc.

Agents, Etc.

Limitation of Liability

Subrogation

Authority of the Administrative Agent

No Release

	Annex 1

Annex 2

Annex 3

Annex 4

Annex 5

Annex 6

Annex 7

Annex 8

Annex 9

Annex 10

Annex 11

Annex 12

Annex 13

Annex 14

Annex 15
	 	Intellectual Property Licenses

Patent Collateral

Securities Collateral

Trademark Collateral

Filing Offices

Debtor Information

Previous Names and Transactions

Offices and Locations of Records

Locations of Inventory and Equipment

Deposit Accounts

Securities Accounts and Commodity Accounts

Instruments and Tangible Chattel Paper

Electronic Chattel Paper

Letters of Credit

Commercial Tort Claims

	Exhibit A

Exhibit B

Exhibit C
	 	Deposit Account Control Agreement

Patent Security Agreement

Trademark Security Agreement







SECURITY AND PLEDGE AGREEMENT




This SECURITY AND PLEDGE AGREEMENT (this “Agreement”) dated as of August 2, 2013, is
among Mitcham Industries, Inc., a Texas corporation (“Borrower”), the Guarantors party
hereto (together with the Borrower, the “Debtors”), and HSBC Bank USA, N.A., as
Administrative Agent under the Credit Agreement (as herein defined), not in its individual
capacity, but solely as collateral agent for the Lenders and other Secured Parties (as such terms
are defined herein) (in such capacity, together with its successors in such capacity, the
“Administrative Agent”).



RECITALS:




A. Pursuant to the Credit Agreement dated as of August 2, 2013 (as amended, modified and
supplemented from time to time, the “Credit Agreement”), among the Borrower, the lenders
party thereto (the “Lenders”) and the Administrative Agent, the Lenders agreed to make
loans to, and other extensions of credit on behalf of, the Borrower.



B. It is a condition to the obligations of the Lenders and the Administrative Agent under the
Credit Agreement that the Debtors shall have granted Liens securing the Obligations and executed,
delivered, and granted the Liens provided for in this Agreement.



C. To induce the Lenders and the Administrative Agent to enter into the Credit Agreement and
to induce certain of the Secured Parties to make loans and/or extend other credit to the Borrower,
and for other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Debtors have agreed to grant security interests in the Collateral as security for the
Secured Obligations (as herein defined).



NOW, THEREFORE, the parties hereto agree as follows:



ARTICLE I

DEFINITIONS





1.01 Definitions. Capitalized terms not otherwise defined herein have the respective
meanings assigned to them in the Credit Agreement. All terms used herein that are not defined
herein or in the Credit Agreement and are defined in the UCC have the meanings therein stated. In
addition, the following terms have the following meanings under this Agreement:



“Accounts” means all accounts (as defined in the UCC) and all general intangibles
(including payment intangibles and software) (as defined in the UCC) of any Debtor constituting any
right to the payment of money, whether or not earned by performance, including all moneys due and
to become due to any Debtor in respect of any loans or advances or for Inventory or Equipment or
other goods sold or leased or for services rendered, tax refunds, insurance refund claims and other
insurance claims and proceeds, tort claims, securities and other investment property, rights to
proceeds of letters of credit, letter-of-credit rights, supporting obligations of every nature and
any guarantee of any of the foregoing.



“Administrative Agent” has the meaning set forth in the introductory paragraph to this
Agreement.



“Agreement” has the meaning set forth in the introductory paragraph to this Agreement.



“Borrower” has the meaning set forth in the introductory paragraph to this Agreement.



“Collateral” has the meaning assigned to such term in Section 2.01.



“Contracts” means, collectively, with respect to each Debtor, all sale, service,
performance, equipment or property lease contracts, agreements and grants and all other contracts,
agreements or grants (in each case, whether written or oral, or third party or intercompany),
between such Debtor and third parties, and all assignments, amendments, restatements, supplements,
extensions, renewals, replacements or modifications thereof.



“Control” means (i) in the case of each Deposit Account, “control,” as such term is
defined in Section 9.104 of the UCC, and (ii) in the case of any certificated security,
uncertificated security or security entitlement, “control,” as such term is defined in Section
8.106 of the UCC and (iii) in the case of any commodity contract, “control,” as such term is
defined in Section 9.106 of the UCC.



“Credit Agreement” has the meaning set forth in Recital A.



“Deposit Account Control Agreement” means an agreement substantially in the form
annexed hereto as Exhibit A or any other form reasonably satisfactory to the Administrative
Agent.



“Deposit Accounts” means, collectively, with respect to each Debtor, (i) all “deposit
accounts” as such term is defined in the UCC (other than the Excluded Deposit Accounts) and (ii)
all cash, funds, checks, notes and instruments from time to time on deposit in any of the accounts
included in clause (i) of this definition.



“Documents” means all “documents” (as defined in the UCC) or other receipts covering,
evidencing or representing Inventory or Equipment.



“Equity Interests” means any and all shares, interests, participations or other equivalents
(however designated) of capital stock of a corporation, any and all equivalent ownership interests
in a Person (other than a corporation), including, without limitation, partnership interests and
membership interests, and any and all warrants, rights or options to purchase or other rights to
acquire any of the foregoing.



“Equipment” means, with respect to each Debtor, all “equipment” (as defined in the
UCC) and all other goods of such Debtor that are used or acquired for use in its business,
including all spare parts and related supplies, all goods obtained by such Debtor in exchange for
any such goods, all substances, if any, commingled with or added to those goods and all upgrades
and other improvements to those goods, in each case to the extent not constituting Inventory.



“Excluded Collateral” has the meaning assigned to such term in the final paragraph of
Section 2.01.



“Excluded Deposit Account” means each of the following (i) at any time, the Borrower’s
payroll account number 807009067 located at First Victoria Bank and (ii) until the date that is one
hundred eighty (180) days after the Closing Date, the following accounts: (x) account number
694026292 located at Frost Bank; (y) account numbers 653519694 and 836919860 located at JP Morgan
Chase Bank; and (z) account number 28231 located at First Victoria Bank.



“Excluded Equity Interests” means (i) 35% of the outstanding voting Equity Interests
of any direct Foreign Subsidiary of the Borrower, (ii) 35% of the outstanding voting Equity
Interests of any Foreign Subsidiary of the Borrower that is owned by another Subsidiary of the
Borrower that itself is not directly or indirectly owned by a Foreign Subsidiary of the Borrower,
and (iii) 100% of the outstanding Equity Interests of any Subsidiary of the Borrower that is
directly or indirectly owned by a Foreign Subsidiary of the Borrower.



“General Intangibles” means all “general intangibles” (as defined in the UCC) now
owned or hereafter acquired by any Debtor, including (i) all obligations or indebtedness owing to
any Debtor (other than Accounts) from whatever source arising, (ii) all Intellectual Property and
goodwill, (iii) all Governmental Approvals, (iv) all rights or claims in respect of refunds for
taxes paid, (v) all Contracts and (vi) to the extent permitted by applicable law, all rights in
respect of any pension plan or similar arrangement maintained for employees of any Debtor.



“Instruments” means all “instruments”, “chattel paper” (whether tangible or
electronic) or “letters of credit” (each as defined in the UCC) of any Debtor evidencing,
representing, arising from or existing in respect of, relating to, securing or otherwise supporting
the payment of, any Account, including promissory notes, drafts, bills of exchange and trade
acceptances now owned or hereafter acquired and all interest, cash, instruments and other property
from time to time received, receivable or otherwise distributed in respect of or in exchange for
any of the Instruments.



“Intellectual Property” means all Patent Collateral and all Trademark Collateral,
together with (a) all inventions, processes, production methods, proprietary information, know-how
and trade secrets; (b) all licenses or user or other agreements granted to any Debtor with respect
to any of the foregoing, in each case whether now or hereafter owned or used, including, without
limitation, the contracts, licenses, or other agreements with respect to the Patent Collateral or
the Trademark Collateral listed in Annex 1; (c) all information, customer lists,
identification of suppliers, data, plans, blueprints, specifications, designs, drawings, recorded
knowledge, surveys, engineering reports, test reports, manuals, materials standards, processing
standards, performance standards, catalogs, computer and automatic machinery software and programs;
(d) all field repair data, sales data and other information relating to sales or service of
products now or hereafter manufactured; (e) all accounting information and all media in which or on
which any information or knowledge or data or records may be recorded or stored and all computer
programs used for the compilation or printout of such information, knowledge, records or data; and
(f) all causes of action, claims and warranties now or hereafter owned or acquired by any Debtor in
respect of any of the items listed above.



“Intellectual Property Security Agreements” means the Patent Security Agreement and
the Trademark Security Agreement.



“Inventory” means all inventory (as defined in the UCC) and all other goods of any
Debtor held for sale, lease or furnishing under a contract of service (including to its
Subsidiaries or Affiliates) or that constitute raw materials, work in process or material used or
consumed in its business, including all spare parts and related supplies, all goods obtained by any
Debtor in exchange for such goods, all products made or processed from such goods and all
substances, if any, commingled therewith or added to such goods.



“Investment Property” means a security, whether certificated or uncertificated,
security entitlement, securities account, commodity contract or commodity account (in each case, as
defined in the UCC), excluding, however, the Securities Collateral.



“Patent Collateral” means all Patents now owned or hereafter acquired by any Debtor,
including, without limitation, each Patent identified in Annex 2.



“Patents” means, collectively, (i) all patents and patent applications, including the
inventions and improvements described and claimed therein, and all patentable inventions, (ii) all
reissues, divisions, continuations, renewals, extensions and continuations-in-part thereof, and
(iii) all rights, licenses and goodwill, now existing or hereafter coming into existence, (A) to
all income, profits, royalties, damages and payments now or hereafter due and/or payable under and
with respect thereto, including damages and payments for past, present or future infringements
thereof, (B) to sue for past, present and future infringements thereof, and (C) otherwise accruing
under or pertaining to any of the foregoing throughout the world.



“Patent Security Agreement” means an agreement substantially in the form annexed
hereto as Exhibit B.



“Permitted Liens” means Liens permitted by Section 7.3 of the Credit Agreement.



“Permitted Third Party Possession” means, as applicable, (i) with respect to any
Inventory or Equipment of a Debtor, the delivery of possession or custody by such Debtor to a third
party pursuant to a Contract entered into by such Debtor in the ordinary course of its business
under which such third party is leasing, purchasing or acquiring such Inventory or Equipment, (ii)
with respect to any Inventory or Equipment of a Debtor, the delivery of possession or custody by
such Debtor to the manufacturer thereof for repair or maintenance, and (iii) with respect to
Inventory, the delivery of possession to a bailee or warehouseman in connection with the import or
export of Inventory in the ordinary course of its business.



“Proceeds” has the meaning assigned to such term in the UCC, including all proceeds of
insurance and all condemnation awards and all other compensation for any casualty event with
respect to all or any part of the Collateral (together with all rights to recover and proceed with
respect to the same), and all accessions to, substitutions for and replacements of all or any part
of the other Collateral.



“Records” has the meaning assigned to such term in Section 4.05.



“Secured Obligations” means all Obligations now or hereafter existing, including any
extensions, modifications, substitutions, amendments and renewals thereof, whether for principal,
interest, fees, expenses, indemnification, or otherwise, including all costs and expenses
(including reasonable attorneys’ fees and expenses) incurred by the Administrative Agent or any
Secured Party in connection with any suit or proceeding in connection with the performance by such
Secured Party of any of the agreements contained in any of the Contracts, or in connection with any
exercise of its rights or remedies hereunder, pursuant to the terms of this Agreement.



“Secured Parties” means, collectively, the Administrative Agent, each Lender (in its
capacity as such), and each Lender or Affiliate thereof party to a Specified Swap Agreement or
Specified Cash Management Agreement.



“Securities Collateral” means (i) each of the Equity Interests of each issuer
identified on Annex 3 (whether such Equity Interests are securities or general intangibles
under the UCC) owned by a Debtor and any Equity Interests subsequently pledged to the
Administrative Agent pursuant to any Security and Pledge Agreement now or hereafter owned by a
Debtor, and the certificates or other instruments representing any of the foregoing and any
interest of a Debtor in the entries on the books of any securities intermediary pertaining thereto
(the “Pledged Shares”); provided, however, that the Pledged Shares shall not include any
Excluded Equity Interests, and (ii) all dividends, distributions, returns of capital, cash,
warrants, options, rights, instruments, rights to vote or manage the business of such Person
pursuant to organizational documents governing the rights and obligations of the stockholders,
partners, members or other owners thereof 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
Pledged Shares.



“Security Interest” means the security interest in the Collateral granted by Debtors
under this Agreement.



“Specified Titled Equipment” means titled Equipment owned by the Debtors below the
$500,000 threshold referred to in Section 3.02(e).



“Trade Secrets” means, collectively, with respect to each Debtor, all know-how, trade
secrets, manufacturing and production processes and techniques, inventions, research and
development information, technical, marketing, financial and business data and databases, pricing
and cost information, business and marketing plans, customer and supplier lists and information,
all other confidential and proprietary information and all tangible embodiments of the foregoing,
together with any and all (i) rights and privileges arising under applicable law and international
treaties and conventions with respect to such trade secrets, (ii) income, fees, royalties, damages,
claims and payments now or hereafter due and/or payable with respect thereto including damages and
payments for past, present or future misappropriations thereof, (iii) rights corresponding thereto
throughout the world and (iv) rights to sue for past, present or future misappropriations thereof.



“Trademark Collateral” means all Trademarks now owned or hereafter acquired by any
Debtor including, without limitation, each Trademark identified in Annex 4.



“Trademarks” means, collectively, (i) all trade names, trademarks and service marks,
logos, trademark and service mark registrations, and applications for trademark and service mark
registrations, (ii) all renewals of trademark and service mark registrations, and (iii) all rights
(A) to all income, royalties, damages and other payments (including in respect of all past, present
and future infringements) with respect to any of the foregoing, (B) to sue for all past, present
and future infringements thereof, and (C) otherwise accruing under or pertaining to any of the
foregoing, together, in each case, with the product lines and goodwill of the business connected
with the use of, and symbolized by, each such trade name, trademark and service mark.



“Trademark Security Agreement” means an agreement substantially in the form annexed
hereto as Exhibit C.



“UCC” means the Uniform Commercial Code as now or hereafter adopted and in effect in
the State of New York; provided that if, by reason of mandatory provisions of law, the
perfection or the effect of perfection or non-perfection of any Security Interest in any Collateral
is governed by the Uniform Commercial Code as in effect in a jurisdiction other than New York,
“UCC” means the Uniform Commercial Code as in effect in such other jurisdiction for purposes of the
provisions hereof relating to such perfection or the effect of perfection or non-perfection.




1.02 Interpretation. The principles of interpretation set out in Section 1.02 of the
Credit Agreement shall apply equally to this Agreement mutatis mutandis. For the avoidance of
doubt, all references in this Agreement to attachment, perfection, priority or validity of any
Lien in the Collateral created hereby shall solely address the attachment, perfection, priority or
validity of any Lien under the laws of the United States of America or any State thereof and shall
specifically exclude any reference to any of the foregoing under foreign law.



ARTICLE II

COLLATERAL





2.01 Grant of Security Interest. As collateral security for the prompt payment in
full when due (whether at stated maturity, by acceleration or otherwise) and performance of the
Secured Obligations, each Debtor hereby grants to the Administrative Agent for the benefit of the
Secured Parties a security interest in all of such Debtor’s right, title and interest in, to and
under the following property, whether now owned or hereafter acquired by such Debtor and whether
now existing or hereafter coming into existence and wherever located (collectively, the
“Collateral”):




(a) all Accounts;




(b) all Deposit Accounts;




(c) all Documents;




(d) all Equipment;




(e) all General Intangibles;




(f) all Governmental Approvals;




(g) all Instruments;




(h) all Inventory;




(i) all Investment Property;




(j) all Securities Collateral;




(k) all rights, claims and benefits of such Debtor against any Person arising out of,
relating to or in connection with Inventory or Equipment purchased by such Debtor, including
any such rights, claims or benefits against any Person storing or transporting such
Inventory or Equipment;




(l) all other tangible and intangible personal property and fixtures of such Debtor,
including all cash, products, rents, revenues, issues, profits, royalties, income, benefits,
commercial tort claims, letter-of-credit rights, supporting obligations, accessions to,
substitutions and replacements for any and all of the foregoing, any indemnity, warranty or
guarantee payable by any reason of loss or damage to or otherwise with respect to any of the
foregoing, and all causes of action, claims and warranties now or hereafter held by such
Debtor in respect of any of the items listed above;




(m) all books, correspondence, credit files, records, invoices and other papers,
including all tapes, cards, computer runs and other papers and documents in the possession
or under the control of such Debtor or any computer bureau or service company from time to
time acting for such Debtor; and




(n) all Proceeds of the collateral described in the foregoing clauses (a) through (m).



Notwithstanding anything herein to the contrary, the Collateral shall not include (the following,
collectively, the “Excluded Collateral”): (i) any assets of any Debtor to the extent that
the grant of a security interest therein is prohibited by any law or any Governmental Authority,
(ii) any Debtor’s rights or interests in any license, contract, agreement, or instrument to which
such Debtor is a party or any of its rights or interests thereunder to the extent, but only to the
extent, that such a grant would, under the terms of such license, contract, agreement, or
instrument or otherwise, result in a breach of the terms of, or constitute a default under, or
result in the termination of any license, contract, agreement, or instrument to which such Debtor
is a party (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 applicable bankruptcy laws) or
principles of equity); provided, that immediately upon the ineffectiveness, lapse or
termination of any such provision, the Collateral shall include, and such Debtor shall be deemed to
have granted a security interest in, all such rights and interests as if such provision had never
been in effect, (iii) the Excluded Equity Interests, (iv) any assets of any Debtor that are the
subject of a Capital Lease or securing purchase money Indebtedness permitted to be incurred under
Section 7.2 of the Credit Agreement if the contractual obligation pursuant to which such Lien is
granted (or the document providing for such Capital Lease) prohibits or requires the consent of any
Person other than such Debtor or any of its Affiliates as a condition to the creation of any other
Lien on such asset, (v) the Excluded Deposit Accounts, and (vi) any assets of any Debtor
constituting an interest in real estate.




2.02 Termination of Security Interests. This Agreement and the Security Interests
shall terminate and all rights to the Collateral shall revert to the Debtors at the time provided
for in Section 10.14(b) of the Credit Agreement. Upon such termination, the Administrative Agent
shall (at the written request and expense of the Borrower) promptly cause to be assigned,
transferred and delivered, against receipt but without any recourse, warranty or representation
whatsoever, any remaining Collateral and money received in respect thereof, to or on the order of
the Borrower and to be released and cancelled all licenses and rights referred to in
Section 5.12(b)(i). The Administrative Agent shall also (at the written request
and expense of the Borrower) promptly execute and deliver to the Borrower upon such termination
such UCC termination statements and such other documentation as shall be reasonably requested by
the Borrower to effect the termination and release of the Security Interests on the Collateral.




2.03 Partial Release of Collateral. Upon the Disposition of any Collateral permitted
by or made in accordance with the Credit Agreement, the Administrative Agent shall, upon the
written request of (and at the sole cost and expense of) the Borrower, promptly execute and
deliver to the Borrower such UCC termination statements and such other documentation as the
Borrower may reasonably request to effect the termination and release of the Liens on such
Collateral.




2.04 Security Interest Absolute. To the maximum extent permitted by applicable law,
the rights and remedies of the Administrative Agent hereunder, the Liens created hereby, and the
obligations of the Debtors under this Agreement are absolute, irrevocable and unconditional and
will remain in full force and effect without regard to, and will not be released, suspended,
discharged, terminated or otherwise affected by, any circumstance or occurrence whatsoever (other
than termination pursuant to Section 2.02 or partial release pursuant to Section
2.03), including:




(a) any renewal, extension, amendment, or modification of, or addition or supplement to
or deletion from, any of the Loan Documents or any other instrument or agreement referred to
therein, or any assignment or transfer of any thereof;




(b) any waiver of, consent to or departure from, extension, indulgence or other action
or inaction under or in respect of any of the Secured Obligations, this Agreement, any other
Loan Document or other instrument or agreement relating thereto, or any exercise or
non-exercise of any right, remedy, power or privilege under or in respect of the Secured
Obligations, this Agreement, any other Loan Document or any such other instrument or
agreement relating thereto;




(c) any furnishing of any additional security for the Secured Obligations or any part
thereof to the Administrative Agent or any other Person or any acceptance thereof by the
Administrative Agent or any other Person or any substitution, sale, exchange, release,
surrender or realization of or upon any such security by the Administrative Agent or any
other person or the failure to create, preserve, validate, perfect or protect any other Lien
granted to, or purported to be granted to, or in favor of, the Administrative Agent or any
other Secured Party;




(d) any illegality, invalidity, irregularity or unenforceability of all or any part of
the Secured Obligations, any Loan Document or any other agreement or instrument relating
thereto or any security therefor;




(e) the acceleration of the maturity of any of the Secured Obligations or any other
modification of the time of payment thereof;




(f) any change in the time, place or manner of payment of, or in any other term of, the
Secured Obligations or any other obligation of any Loan Party under any of the Loan
Documents, or any rescission, waiver, amendment or other modification of any Loan Document
or any other agreement, including any increase in the Secured Obligations resulting from any
extension of additional credit or otherwise; or




(g) any other event or circumstance whatsoever that might otherwise constitute a legal
or equitable discharge of a surety or a guarantor, it being the intent of this
Section 2.04 that the obligations of the Debtors hereunder shall be absolute,
irrevocable and unconditional under any and all circumstances.




2.05 Limit of Liability. Notwithstanding the foregoing, the security interest
granted by each Debtor hereunder shall be limited to the extent necessary so that its obligations
hereunder would not be subject to avoidance under Section 548 of the United States Bankruptcy Code
or any comparable provisions of any applicable state law.




2.06 Reinstatement. This Agreement and the Liens created hereunder shall
automatically be reinstated if and to the extent that for any reason any payment by or on behalf
of any Debtor in respect of the Secured Obligations is rescinded or must otherwise be restored by
any holder of the Secured Obligations, whether as a result of any fraudulent conveyance,
proceedings in bankruptcy or reorganization or otherwise. EACH DEBTOR SHALL DEFEND AND INDEMNIFY
EACH SECURED PARTY FROM AND AGAINST ANY CLAIM, DAMAGE, LOSS, LIABILITY, COST, OR EXPENSE UNDER
THIS SECTION 2.06 (INCLUDING REASONABLE ATTORNEYS’ FEES AND EXPENSES) IN THE DEFENSE OF
ANY SUCH ACTION OR SUIT, INCLUDING SUCH CLAIM, DAMAGE, LOSS, LIABILITY, COST, OR EXPENSE ARISING
AS A RESULT OF THE INDEMNIFIED SECURED PARTY’S OWN NEGLIGENCE OR STRICT LIABILITY BUT EXCLUDING
SUCH CLAIM, DAMAGE, LOSS, LIABILITY, COST, OR EXPENSE THAT IS FOUND IN A FINAL, NON-APPEALABLE
JUDGMENT BY A COURT OF COMPETENT JURISDICTION TO HAVE RESULTED FROM SUCH INDEMNIFIED SECURED
PARTY’S OR ITS RELATED PARTIES’ GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR BAD FAITH.



ARTICLE III

PERFECTION OF SECURITY INTEREST





3.01 Perfection. Prior to or concurrently with the execution and delivery of this
Agreement, Debtors shall:




(a) file or cause to be filed such financing statements and other documents in such
offices in the United States of America or any State thereof as shall be necessary or as the
Administrative Agent may reasonably request to perfect and establish the priority of the
Security Interest;




(b) subject to Section 3.04, deliver to the Administrative Agent any and all
Instruments with an individual face value in excess of $250,000, endorsed or accompanied by
such instruments of assignment and transfer in such form and substance as the Administrative
Agent may reasonably request;




(c) deliver to the Administrative Agent any and all certificates in any Debtor’s
physical possession evidencing Investment Property included in the Collateral or any
Securities Collateral (other than those representing any Excluded Equity Interests),
endorsed or accompanied by such instruments of assignment and transfer in such form and
substance as the Administrative Agent may reasonably request;




(d) [intentionally omitted]




(e) [intentionally omitted];




(f) with respect to any uncertificated security included in the Collateral consisting
of Equity Interests in Domestic Subsidiaries (other than those representing any Excluded
Equity Interests), cause the Security Interest to be recorded on the equityholder register
or on the books of the issuer of such uncertificated security and cause such issuer to
execute and deliver to the Administrative Agent an acknowledgment of the Security Interest
pursuant to which the issuer agrees to comply with instructions originated by the
Administrative Agent without further consent by such Debtor;




(g) deliver to the Administrative Agent with respect to each location in the United
States of America (other than any location owned by a Debtor) where any Debtor maintains
Collateral a waiver of bailee’s and/or landlord’s lien, as applicable;




(h) [intentionally omitted]; and




(i) take all such other actions as shall be necessary or as the Administrative Agent
may reasonably request to perfect and establish the priority of the Security Interest.



Additionally, each Debtor hereby authorizes the Administrative Agent to prepare, execute, deliver,
file and/or record in any relevant jurisdiction in the United States of America (without the
signature of such Debtor to the extent permitted by applicable law) any financing statement
(including any fixture filing), continuation statement, amendment or other document that may be
necessary or desirable (in the reasonable judgment of the Administrative Agent): (i) to create,
preserve, perfect or validate the Security Interest; or (ii) or to enable the Administrative Agent
to exercise and enforce its rights hereunder with respect to such Security Interest. Each Debtor
hereby ratifies its authorization for the Administrative Agent to file in any relevant jurisdiction
in the United States of America any initial financing statements or amendments thereto relating to
the Collateral if filed prior to the date hereof. Each Debtor hereby authorizes the Secured
Parties to file any financing statement describing the Collateral as “all assets” or “all of the
Debtor’s personal property”, notwithstanding that such wording may be broader in scope than the
Collateral described in this Agreement. The Debtors shall pay the costs of, or incidental to, any
recording or filing of any such financing or continuation statement, amendment or other document or
otherwise arising out of or in connection with the execution and delivery of this Agreement.




3.02 Perfection of Additional Collateral. Each Debtor shall:




(a) subject to Section 3.04, upon the acquisition after the date hereof by such
Debtor of any Instrument with an individual face value in excess of $250,000, promptly
deliver to the Administrative Agent all such Instruments, endorsed and/or accompanied by
instruments of assignment and transfer in such form and substance as the Administrative
Agent may reasonably request;




(b) upon the acquisition of any certificated securities representing Investment
Property or Securities Collateral which are to be physically possessed by a Debtor other
than those representing Excluded Equity Interests, promptly deliver to the Administrative
Agent all such certificated securities, endorsed or accompanied by instruments of transfer
or assignment in such form and substance as the Administrative Agent may reasonably request;




(c) upon the acquisition of any uncertificated securities included in the Collateral
other than those representing Excluded Equity Interests, cause the Security Interest to be
recorded on the equityholder register or the books of the issuer of such uncertificated
securities and cause such issuer to execute and deliver to the Administrative Agent an
acknowledgement of the Security Interest pursuant to which the issuer agrees to comply with
instructions originated by the Administrative Agent without further consent by such Debtor;




(d) upon the request of the Administrative Agent made at any time during the existence
and continuance of an Event of Default, deliver to the Administrative Agent true and
complete copies of all Contracts in respect of the Collateral which are in excess of
$100,000 or are otherwise material to such Debtor’s business;




(e) if the Debtors shall at any time own titled Equipment with an aggregate book value,
as determined in good faith by the Borrower, in excess of $500,000, deliver to the
Administrative Agent any and all certificates of title, applications for title or similar
evidence of ownership of all Equipment owned by such Debtor and cause the Administrative
Agent to be named as lienholder on any such certificate of title, application for title or
other evidence of ownership so delivered; and




(f) deliver to the Administrative Agent a securities account control agreement in form
and substance satisfactory to the Administrative Agent with respect to any securities
account or securities entitlement opened after the date hereof, executed by such Debtor and
the securities intermediary maintaining such securities account.




3.03 Intellectual Property Filings. On the date hereof, each Debtor will execute and
deliver to the Administrative Agent the Intellectual Property Security Agreements with respect to
all Intellectual Property material to the use and operation of the Collateral (taken as a whole)
then owned by it or for which an applicable for registration is pending in the United States
Patent and Trademark Office. Upon the request of the Administrative Agent, it will sign and
deliver to the Administrative Agent any Intellectual Property Security Agreement with respect to
any such Intellectual Property owned by it at such time that are not covered by any previous
Intellectual Property Security Agreements so executed and delivered by it. In each case, it shall
promptly make all Intellectual Property filings necessary to record the Security Interests in such
Intellectual Property. Each Debtor hereby appoints the Administrative Agent as its
attorney-in-fact to execute and file all Intellectual Property filings required or so requested
for the foregoing purposes, all acts of such attorney being hereby ratified and confirmed; and
such power, being coupled with an interest, shall be irrevocable until the Collateral is released
pursuant to Section 2.02 or Section 2.03.




3.04 Instruments. Unless the Administrative Agent shall have directed otherwise
after the occurrence and during the continuance of an Event of Default, each Debtor may retain for
collection in the ordinary course any Instruments received by it in the ordinary course of
business, and the Administrative Agent shall, promptly upon request and at the expense of any
Debtor, make appropriate arrangements for making any Instrument pledged by such Debtor and held by
the Administrative Agent available to such Debtor for purposes of presentation, collection or
renewal (any such arrangement to be effected, to the extent deemed appropriate by the
Administrative Agent, against trust receipt or like document).




3.05 Further Assurances. Each Debtor shall, from time to time, at its sole expense,
promptly execute, deliver, file and record in the United States of America all further agreements,
assignments, financing statements, instruments, documents and certificates and take all further
action that may be reasonably necessary or reasonably desirable, or that the Administrative Agent
may reasonably request, in order to create, preserve, perfect, confirm or validate the Security
Interest in the Collateral or to enable the Administrative Agent to obtain the full benefits of
the Security Documents (including, to the extent required in this Agreement, the delivery of
possession of any Collateral that hereafter comes into existence or is acquired in the future to
the Administrative Agent as pledgee for the benefit of the Secured Parties), or to enable the
Administrative Agent to exercise and enforce any of its rights, powers and remedies thereunder
with respect to any of such Collateral.




3.06 Use of Collateral. Unless the Administrative Agent shall have directed
otherwise after the occurrence and during the continuance of an Event of Default, except as
otherwise provided herein or in the Credit Agreement, each Debtor shall be entitled to use and
possess the Collateral and to exercise its rights, title and interest in all Contracts and
Governmental Approvals subject to the rights, remedies, powers and privileges of the
Administrative Agent under Article VI and to such use, possession or exercise not
otherwise constituting an Event of Default.



ARTICLE IV

REPRESENTATIONS AND WARRANTIES




	 	 	 	 	 
	Each Debtor represents and warrants to the Secured Parties as follows:
	 	4.01	 	 	Security Documents; Credit Agreement.

	 	 	 	 	 








(a) This Agreement is effective to create in favor of the Administrative Agent for the
benefit of the Secured Parties a legal, valid and enforceable security interest in and Lien
on the Collateral and, (i) when financing statements and other filings in appropriate form
are filed in the offices specified on Annex 5, and (ii) upon the taking of
possession or Control by the Administrative Agent of the Collateral with respect to which a
security interest may be perfected only by possession or Control (which possession or
Control shall be given to the Administrative Agent to the extent possession or Control by
the Administrative Agent is required by this Agreement), the Lien created by this Agreement
shall constitute a fully perfected Lien on, and security interest in, all right, title and
interest of the Debtors in the Collateral (other than, for the avoidance of doubt, Specified
Titled Equipment) for which such methods of perfection are applicable, in each case subject
to no Liens.




(b) When the Intellectual Property Security Agreements are filed in the United States
Patent and Trademark Office, the Lien created by this Agreement shall constitute a perfected
Lien on all right, title and interest of the grantors thereunder in the Intellectual
Property which is registered in the United States Patent and Trademark Office, in each case
subject to no Liens.




(c) [intentionally omitted]




(d) Each Debtor makes the representations and warranties set forth in Article IV of the
Credit Agreement as they relate to such Debtor or to the Loan Documents to which such Debtor
is a party, each of which is hereby incorporated herein by reference, and the Administrative
Agent shall be entitled to rely on each of them as if they were fully set forth herein,
provided that each reference in each such representation and warranty to the
Borrower’s knowledge shall, for purposes of this Section 4.01(d), be deemed to be a
reference to the Debtors’ knowledge.




4.02 Title. Each Debtor is the sole legal and beneficial owner of all Collateral in
which it purports to grant a Lien pursuant to this Agreement, and such Collateral is free and
clear of all Liens except Permitted Liens. Except as set forth on Schedule 7.3 to the Credit
Agreement or is filed after the Closing Date with respect to Permitted Liens, no currently
effective financing statement or other instrument similar in effect (other than those naming the
Administrative Agent as the secured party) is on file in any recording office covering all or any
part of the Collateral. No Person other than the Administrative Agent has Control or possession
of all or any part of the Collateral except (i) as permitted by the Credit Agreement, and (ii)
Permitted Third Party Possession.




4.03 Chief Executive Office; Change of Name; Jurisdiction of Organization. As of the
Closing Date the exact legal name, type of organization, jurisdiction of organization, Federal
Taxpayer Identification Number, organizational identification number and chief executive office of
each Debtor is indicated next to its name in Annex 6.




4.04 Corporate Names; Prior Transactions. No Debtor has, during the past five years,
been known by or used any other corporate or fictitious name or been a party to any merger or
consolidation, or acquired all or substantially all of the assets of any person, or acquired any
of its property or assets out of the ordinary course of business, except as set forth in
Annex 7.




4.05 Records. As of the Closing Date, the principal place of business and chief
executive office of each Debtor and the office where each Debtor keeps its books and records
concerning the Collateral (hereinafter, collectively called the “Records”) is located at
the address set out on Annex 8.




4.06 Changes in Circumstances. No Debtor has, within the period of four months prior
to the date hereof: (a) changed its location (as defined in Section 9-307 of the UCC);
(b) changed its name; or (c) become a “new debtor” (as defined in Section 9-102(a)(56) of the UCC)
with respect to a security agreement previously entered into by any other Person.




4.07 [Intentionally omitted].




4.08 Title to Equity Interests. As of the Closing Date, the applicable Debtor
identified on Annex 3 owns the Equity Interests listed as being owned by it in Annex
3 hereto, free and clear of any Lien. All shares of capital stock identified in such Annex as
being beneficially owned by each Debtor have been duly authorized and validly issued, are fully
paid and non-assessable and are not subject to any option to purchase or similar right of any
Person. Except as permitted by the Credit Agreement, no Debtor is nor will become a party to or
otherwise bound by any agreement, other than the Loan Documents, which restricts in any manner the
rights of any present or future holder of any such Equity Interest with respect thereto.




4.09 Financing Statements and Other Filings; Maintenance of Perfected Security
Interest. The only filings, registrations and recordings in the United States of America that
are necessary and appropriate to create, preserve, protect, publish notice of and perfect the
security interest granted by each Debtor to the Administrative Agent (for the benefit of the
Secured Parties) pursuant to this Agreement in respect of the Collateral are listed in
Annex 5. All such filings, registrations and recordings have been delivered to the
Administrative Agent in completed and, to the extent necessary or appropriate, duly executed form
for filing in each governmental, municipal or other office specified in Annex 5 and shall
be filed, registered and recorded immediately after the date thereof. No financing statement or
other instrument similar in effect covering all or any part of the Collateral or listing such
Debtor as debtor is on file in any recording office, except such as have been filed in favor of
the Administrative Agent pursuant to this Agreement or as otherwise permitted under the Credit
Agreement.




4.10 Deposit Accounts. As of the Closing Date, no Debtor has opened or maintains any
Deposit Accounts other than the accounts listed on Annex 10. The Administrative Agent has
a perfected first priority security interest in each Deposit Account listed on Annex 10.




4.11 Investment Property. As of the Closing Date, no Debtor (i) has any Securities
Accounts or Commodity Accounts other than those listed in Annex 11, and the Administrative
Agent has a perfected first priority security interest in such Securities Accounts and Commodity
Accounts as a result of filing the applicable UCC financing statements, and (ii) does not hold,
own or have any interest in any Investment Property other than those maintained in the Securities
Accounts or Commodity Accounts listed in Annex 11.




4.12 Delivery of Certificated Securities Collateral. All certificates, agreements or
instruments representing or evidencing the Securities Collateral in existence on the Closing Date
(other than those evidencing Excluded Equity Interests), have been delivered to the Administrative
Agent in suitable form for transfer by delivery or accompanied by duly executed instruments of
transfer or assignment in blank and the Administrative Agent has a perfected first priority
security interest therein.




4.13 Perfection of Uncertificated Securities Collateral. The Administrative Agent
has a perfected first priority security interest in all uncertificated Securities Collateral
(other than Excluded Equity Interests) pledged by it hereunder that is in existence on the Closing
Date.




4.14 Instruments and Tangible Chattel Paper. As of the Closing Date (i) no principal
amount in excess of $250,000 payable under or in connection with any of the Collateral is
evidenced by any Instrument other than such Instruments listed in Annex 12 and (ii) each
Instrument listed in Annex 12 has been properly delivered to the Administrative Agent,
accompanied by instruments of transfer or assignment duly executed in blank. If any amount in
excess of $250,000 then payable under or in connection with any of the Collateral shall be
evidenced by any Instrument other than as listed in Annex 12, the Debtor acquiring such
Instrument shall deliver the same to the Administrative Agent, accompanied by such instruments of
transfer or assignment duly executed in blank as the Administrative Agent may from time to time
specify. Upon the continuance of an Event of Default, at the request of the Administrative Agent,
each item of tangible chattel paper then held or subsequently acquired shall be delivered to the
Administrative Agent, accompanied by instruments of transfer or assignment duly executed in blank.




4.15 Electronic Chattel Paper and Transferable Records. As of the Closing Date no
amount payable under or in connection with any of the Collateral is evidenced by any electronic
chattel paper or any “transferable record” (as that term is defined in Section 201 of the Federal
Electronic Signatures in Global and National Commerce Act, or in Section 16 of the Uniform
Electronic Transactions Act as in effect in any relevant jurisdiction) other than such electronic
chattel paper and transferable records listed in Annex 13. Each Debtor will maintain all
(i) electronic chattel paper in the manner specified in Section 9-105 of the UCC and (ii)
transferable records so that the Administrative Agent has control of the transferable records in
the manner specified in Section 16 of the Uniform Electronic Transactions Act, as in effect in the
jurisdiction governing such transferable record.




4.16 Letters of Credit. As of the Closing Date, no Debtor is a beneficiary under any
Letter of Credit having a face value in excess of $100,000 issued in favor of such Debtor except
as listed in Annex 14.




4.17 Commercial Tort Claims. As of the Closing Date, such Debtor holds no commercial
tort claims for an amount in excess of $100,000 other than those listed in Annex 15.



4.18 Intellectual Property. (a) Annex 2 lists all Patents, and Annex
4 lists all Trademarks, in each case material to the use and operation of the Collateral (taken
as a whole) as of the Closing Date; (b) all Intellectual Property that is material to the use and
operation of the Collateral (taken as a whole) is valid, subsisting, unexpired and enforceable and
has not been abandoned; (c) except as described on Annex 2 or Annex 4, as
applicable, such Debtor is the exclusive owner of all right, title and interest in and to, or has
the right to use, all such Intellectual Property; (d) consummation and performance of this
Agreement will not result in the invalidity, unenforceability, impairment, default or termination
of any such Intellectual Property; (e) except as described on Annex 2 or Annex 4,
as applicable, there are no outstanding holdings, decisions, consents, settlements, decrees, orders
injunctions, rulings or judgments that would limit, cancel, or question the validity or
enforceability of any such Intellectual Property or such Debtor’s rights therein or use thereof;
(f) to such Debtor’s knowledge, except as described in Annex 2 or Annex 4, as
applicable, the operation of such Debtor’s business and such Debtor’s use of such Intellectual
Property in connection therewith does not infringe or misappropriate the intellectual property
rights of any other Person; (g) except as described in Annex 2 or Annex 4, as
applicable, no action or proceeding is pending or, to such Debtor’s knowledge, threatened (i)
seeking to limit, cancel or question the validity of any such Intellectual Property or such
Grantor’s ownership interest or rights therein, (ii) which, if adversely determined, could have a
Material Adverse Effect on the value of any such Intellectual Property or (iii) alleging that any
such Intellectual Property, or such Debtor’s use thereof in the operation of its business,
infringes or misappropriates the intellectual property rights of any Person and (h) to such
Debtor’s knowledge, there has been no Material Adverse Effect on such Debtor’s rights in its
material Trade Secrets as a result of any unauthorized use, disclosure or appropriation by or to
any Person, including such Debtor’s current and former employees, contractors and agents. 4.19
Collateral Information. As of the Closing Date, all information set forth herein,
including the annexes hereto, and all information contained in any documents, schedules and lists
heretofore delivered to the Administrative Agent, in connection with this Agreement relating to the
Collateral, is accurate and complete in all material respects. As of the Closing Date, the
Collateral described on the annexes hereof constitutes property of such type of Collateral owned or
held by the Debtors.



ARTICLE V

COVENANTS




In furtherance of the grant of the Security Interests pursuant to Article II, each
Debtor hereby agrees with the Administrative Agent as follows:




5.01 Access to Records; Inspection of Collateral .




(a) Each Debtor shall (i) permit representatives of the Administrative Agent to inspect
the Collateral and Records and make copies of the Records as provided in Section 6.6 of the
Credit Agreement and (ii) forward to the Administrative Agent copies of any notices or
communications received by such Debtor relevant to the validity, perfection or priority of
Administrative Agent’s Security Interests in the Collateral. Upon the occurrence and during
the continuation of any Event of Default, at the Administrative Agent’s request, each Debtor
shall promptly deliver copies of any and all such Records to the Administrative Agent.




5.02 Other Financing Statements and Liens. Each Debtor shall keep the Collateral in
good order and repair and will not use the same in violation of law (except as would be permitted
pursuant to Section 6.4(b) of the Credit Agreement) or any policy of insurance thereon. Without
the prior written consent of the Administrative Agent and except with respect to Permitted Liens,
no Debtor shall file or suffer to be on file, or authorize or permit to be filed or to be on file,
in any jurisdiction, any financing statement or like instrument with respect to the Collateral in
which the Administrative Agent is not named as the sole secured party for the benefit of the
Secured Parties.




5.03 Reports. Each Debtor shall furnish to the Administrative Agent from time to
time as the Administrative Agent may reasonably request statements and schedules further
identifying and describing the Collateral and such other reports in connection with the Collateral
as the Administrative Agent may reasonably request, all in reasonable detail; provided, however,
absent the existence and continuance of an Event of Default, the Debtors shall only be required to
deliver such information concurrently with the delivery of each Borrowing Base Certificate.
Promptly upon request of the Administrative Agent, following receipt by the Administrative Agent
of any reports pursuant to the preceding sentence, the Borrower shall deliver to the
Administrative Agent revised Annexes to include any assets that would be required to be
included in such Annexes and that have become part of the Collateral under this Agreement.




5.04 Adverse Claims. Each Debtor shall defend, all at its own expense, such Debtor’s
title and the existence, perfection and first priority of the Administrative Agent’s security
interest in the Collateral against all adverse claims that are material.




5.05 Prohibition of Certain Changes. Except to the extent permitted by the Credit
Agreement, no Debtor shall change (i) its name, identity, corporate structure or the jurisdiction
under which it is organized, (ii) its chief executive office or chief place of business or
(iii) the locations where it keeps or holds any records from the applicable locations described in
Annex 8, unless such Debtor shall have given the Administrative Agent 30 days’ prior
notice thereof and delivered to the Administrative Agent all additional financing statements,
information and other documents reasonably requested by the Administrative Agent to maintain the
validity, perfection and priority of the security interest provided for herein and, if requested
by the Administrative Agent upon the direction of the Required Lenders, delivered an opinion of
counsel with respect thereto in accordance with Section 5.06 . Each Debtor agrees that it
will not in any event change the location of any Collateral owned by it if such change would cause
the Security Interest in such Collateral to lapse or cease to be perfected under United States
law. Each Debtor agrees to promptly provide the Administrative Agent with certified
organizational documents reflecting, if applicable, any of the changes described in this
Section 5.05.



5.06 Opinion of Counsel




. If requested by the Administrative Agent upon the direction of the Required Lenders, at
least 20 days before it takes any action contemplated by Section 5.05(i), a Debtor shall,
at its expense, cause to be delivered to the Administrative Agent an opinion of counsel, in form
and substance reasonably satisfactory to the Administrative Agent, to the effect that all
financing statements and amendments or supplements thereto, continuation statements and other
documents required to be recorded or filed in order to maintain the perfection of the Security
Interests after the taking of such action against all creditors of and purchasers from such Debtor
(except any continuation statements specified in such opinion of counsel that are to be filed more
than six months after the date thereof) have been filed in each filing office necessary for such
purpose and that all filing fees and taxes, if any, payable in connection with such filings have
been paid in full.



5.07 Collateral Held by Others




. If any of its Collateral is at any time in the possession or control of any warehouseman,
bailee or agent, other than Permitted Third Party Possession, each Debtor shall notify such
warehouseman, bailee or agent of the Security Interests and instruct it to hold all such
Collateral for the Administrative Agent’s account subject to the Administrative Agent’s
instructions (which shall permit such Collateral to be removed by such Debtor in the ordinary
course of business until the Administrative Agent notifies such warehouseman, bailee or agent that
an Event of Default has occurred and is continuing). Each Debtor shall use its commercially
reasonable efforts to obtain a bailee letter and/or landlord lien waiver, as applicable, from all
such bailees and landlords, as applicable, who from time to time have possession of Collateral,
other than Permitted Third Party Possession, in the ordinary course of such Debtor’s business.
Notwithstanding the foregoing, the Debtors shall not be required to take any action under this
Section 5.07with respect to (i) any Inventory in-transit to the applicable purchaser or
lessee thereof or (ii) to any Inventory or Equipment in-transit to the applicable manufacturer
thereof for repair or maintenance.




5.08 Records. Each Debtor shall keep accurate Records and, if an Event of Default
shall have occurred and be continuing, shall stamp or otherwise mark such Records in such manner
as Administrative Agent may reasonably request in order to reflect the Security Interest.




5.09 Collection of Accounts. Each Debtor shall use commercially reasonable efforts
to cause to be collected from its account debtors, as and when due, any and all amounts owing
under or on account of each of its Accounts (including Accounts that are delinquent, such Accounts
to be collected in accordance with lawful collection procedures) and shall apply forthwith upon
receipt thereof all such amounts as are so collected to the outstanding balance of such Accounts.
The costs and expenses (including attorney’s fees) of collection, whether incurred by a Debtor or
the Administrative Agent, shall be borne by such Debtor.




5.10 Disposition of Collateral. No Debtor shall sell, offer to sell, lease,
exchange, convey, assign or otherwise dispose of, or grant any option with respect to, restrict or
grant, create, permit or suffer to exist any Lien on, any of its Collateral except as permitted by
the Credit Agreement.




5.11 Protection of Intellectual Property. Each Debtor shall timely pay all fees
(including maintenance fees), file all documents or declarations (including applications,
applications for renewal, affidavits of use and affidavits of incontestability) and take all other
action necessary to obtain, maintain and renew each Patent and Trademark included in the
Collateral that is material to the use and operation of the Collateral (taken as a whole). Each
Debtor shall notify the Administrative Agent at the end of each calendar quarter if it knows that
any application or registration relating to any Intellectual Property owned or licensed by it and
that is material to the use and operation of the Collateral (taken as a whole) may become
abandoned or dedicated, or of any adverse determination or development (including the institution
of, or any such determination or development in, any proceeding in the United States Patent and
Trademark Office or any court) regarding such Debtor’s ownership of such Intellectual Property,
its right to register or patent the same, or its right to keep and maintain the same. If any
Debtor’s rights to any Intellectual Property that is material to the use and operation of the
Collateral (taken as a whole) are infringed, misappropriated or diluted by a third party, such
Debtor shall notify the Administrative Agent at the end of such calendar quarter in which Debtor
learned of such infringement, misappropriation or dilution and shall take all actions as such
Debtor shall reasonably deem appropriate under the circumstances to protect such Intellectual
Property.




5.12 Special Provisions Relating to Certain Collateral.




(a) Contracts.




(i) Anything herein to the contrary notwithstanding, each Debtor shall remain liable to
perform all of its duties and obligations under each of the Contracts included in the
Collateral to the same extent as if this Agreement had not been executed. The exercise by
the Administrative Agent or any other Secured Party of any of the rights and remedies
hereunder shall not release any Debtor from any of its duties or obligations under the
Contracts. Neither the Administrative Agent nor any other Secured Party shall have any
duty, obligation or liability under such Contracts included in the Collateral or otherwise
in respect of the Collateral by reason of this Agreement or be obligated to perform any of
the obligations or duties of any Debtor under the Contracts or otherwise in respect of the
Collateral or to take any action to collect or enforce any claim for payment or any other
right assigned hereunder.




(ii) During the continuance of an Event of Default, if Debtor fails to perform any
agreement contained herein or in any of the Contracts, the Administrative Agent may (but
shall not be obligated to) itself perform, or cause the performance of, such agreement, and
the reasonable fees, costs and expenses of the Administrative Agent incurred in connection
therewith shall be payable by or on behalf of Debtors and shall be Secured Obligations to
the Administrative Agent.




(b) Intellectual Property.




(i) For the purpose of enabling the Administrative Agent to exercise rights and
remedies under Article VI at such time as the Administrative Agent shall be lawfully
entitled to exercise such rights and remedies, and for no other purpose, each Debtor hereby
grants to the Administrative Agent, an irrevocable, non-exclusive license (exercisable
without payment of royalty or other compensation to any Debtor) to use, license or
sublicense any of the Intellectual Property now owned or hereafter acquired by such Debtor,
wherever the same may be located, including in such license reasonable access to all media
in which any of the licensed items may be recorded or stored and to all computer programs
used for the compilation or printout thereof; provided, however, such license shall only be
effective during the continuance of an Event of Default.




(ii) Notwithstanding anything contained herein to the contrary, but subject to the
provisions of the Credit Agreement that limit the rights of the Debtors to dispose of their
property, so long as no Event of Default shall have occurred and be continuing, each Debtor
will be permitted to exploit, use, enjoy, protect, license, sublicense, assign, sell,
dispose of or take other actions with respect to the Intellectual Property in the ordinary
course of the business of such Debtor. In furtherance of the foregoing, unless an Event of
Default shall have occurred and be continuing, the Administrative Agent shall, from time to
time, upon the request of any Debtor, execute and deliver any instruments, certificates or
other documents, in the form so requested, that such Debtor shall have certified are
appropriate (in its judgment) to allow it to take any action permitted above (including
relinquishment of the license provided pursuant to clause (i) immediately above as to any
specific Intellectual Property). Further, upon satisfaction of the conditions to
termination of this Agreement described in Section 2.02 or the partial release of
any Intellectual Property pursuant to Section 2.03, the Administrative Agent shall
terminate the license granted pursuant to clause (i) immediately above. The exercise of
rights and remedies under Article VI by the Administrative Agent shall not terminate
the rights of the holders of any licenses or sublicenses theretofore granted by any Debtor
in accordance with the first sentence of this clause (ii).




(iii) On a continuing basis, each Debtor shall, at its sole cost and expense:




(A) promptly following its becoming aware thereof, notify the
Administrative Agent of any adverse determination in any proceeding or the
institution of any proceeding in any federal, state or local court or
administrative body or in the United States Patent and Trademark Office or
the United States Copyright Office regarding (i) such Debtor’s claim of
ownership or right to use any of the Intellectual Property that is material
to the use and operation of the Collateral (taken as a whole), (ii) such
Debtor’s right to register such Intellectual Property or (iii) such Debtor’s
right to keep and maintain such registration in full force and effect;




(B) maintain and protect the Intellectual Property material to the use
and operation of the Collateral (taken as a whole);




(C) not permit to lapse or become abandoned any Intellectual Property
material to the use and operation of the Collateral (taken as a whole), and
not settle or compromise any pending or future litigation or administrative
proceeding with respect to such Intellectual Property, in each case except
as shall be consistent with commercially reasonable business judgment;




(D) upon such Debtor obtaining knowledge thereof, promptly notify the
Administrative Agent in writing of any event which is reasonably expected to
materially and adversely affect the value or utility of any of the
Intellectual Property or any portion thereof that is material to the use and
operation of the Collateral (taken as a whole) as presently used and
operated and as contemplated by the Credit Agreement or the rights and
remedies of the Administrative Agent in relation thereto including a levy or
threat of levy or any legal process against the Intellectual Property
Collateral or any portion thereof;




(E) not license any Intellectual Property material to the use and
operation of the Collateral (taken as a whole) or amend or permit the
amendment of any of the licenses in a manner that could materially impair
the value of any Intellectual Property material to the use and operation of
the Collateral (taken as a whole) or the Lien on and security interest in
the Intellectual Property crated therein hereby, without the consent of the
Administrative Agent; and




(F) diligently keep adequate records respecting its Intellectual
Property material to the use and operation of the Collateral (taken as a
whole); and




(G) furnish to the Administrative Agent from time to time upon the
Administrative Agent’s reasonable request therefor reasonably detailed
statements and amended schedules further identifying and describing the
Intellectual Property material to the use and operation of the Collateral
(taken as a whole) and such other materials evidencing or reports pertaining
to the Intellectual Property as Administrative Agent may from time to time
reasonably request.




(iv) If any Debtor shall at any time after the date hereof (a) obtain any rights to any
additional Intellectual Property or (b) become entitled to the benefit of any additional
Intellectual Property or any registration, renewal or extension thereof, including any
reissue, division, continuation, or continuation-in-part of any Intellectual Property
Collateral, or any improvement on any Intellectual Property Collateral, in each case that is
material to the use and operation of the Collateral (taken as a whole), the provisions
hereof shall automatically apply thereto and any such item enumerated in clause (a) or (b)
of this Section 5.12(b)(iv) with respect to such Debtor shall automatically constitute
Collateral as if such would have constituted Collateral at the time of execution hereof and
be subject to the Lien and security interest created by this Agreement without further
action by any party. Each Debtor shall promptly with the delivery of its quarterly
financial statements (i) provide to the Administrative Agent written notice of any of the
foregoing and (ii) confirm the attachment of the Lien and security interest created by this
Agreement to any rights described in clauses (a) and (b) of the immediately preceding
sentence by execution of an instrument in form reasonably acceptable to the Administrative
Agent and the filing of any instruments or statements as shall be reasonably necessary to
create, preserve, protect or perfect the Administrative Agent’s security interest in such
Intellectual Property in accordance with Section 3.05 hereof. Further, each Debtor
authorizes the Administrative Agent to modify this Agreement by amending Annex 2 and
Annex 4 hereof to include any such Intellectual Property of such Debtor.




(v) Unless there shall occur and be continuing any Event of Default, each Debtor shall
have the right to commence and prosecute in its own name, as the party in interest, for its
own benefit and at the sole cost and expense of the Debtors, such applications for
protection of the Intellectual Property and suits, proceedings or other actions to prevent
the infringement, misappropriation, counterfeiting, unfair competition, dilution, diminution
in value or other damage as are necessary to protect the Intellectual Property. Upon the
occurrence and during the continuance of any Event of Default, the Administrative Agent
shall have the right but shall in no way be obligated to file applications for protection of
the Intellectual Property and/or bring suit in the name of any Debtor or the Administrative
Agent to enforce the Intellectual Property. In the event of such suit, each Debtor shall,
at the reasonable request of the Administrative Agent, do any and all lawful acts and
execute any and all documents reasonably requested by the Administrative Agent in aid of
such enforcement and the Debtors shall promptly reimburse and indemnify the Administrative
Agent for all reasonable costs and expenses incurred by the Administrative Agent in the
exercise of its rights under this Section 5.12(b)(v). In the event that the
Administrative Agent shall elect not to bring suit to enforce the Intellectual Property as
permitted by this Section 5.12(b)(v) and an Event of Default has occurred and is
continuing, each Debtor agrees, at the reasonable request of the Administrative Agent, to
take all commercially reasonable actions necessary, whether by suit, proceeding or other
action, to prevent the infringement, misappropriation, counterfeiting, unfair competition,
dilution, diminution in value of or other damage to any of the Intellectual Property by
others and for that purpose agrees to diligently maintain any suit, proceeding or other
action against any person so infringing as necessary to prevent such infringement.




(c) Deposit Accounts. No Debtor shall hereafter establish and maintain any
Deposit Account (other than the Excluded Deposit Accounts) unless (i) the applicable Debtor
shall have given the Administrative Agent ten (10) Business Days’ prior written notice of
its intention to establish such new Deposit Account and (ii) if requested by the
Administrative Agent or upon the direction of the Required Lenders, such financial
institution and such Debtor shall have duly executed and delivered to the Administrative
Agent a Deposit Account Control Agreement with respect to such Deposit Account. No Debtor
shall grant Control of any Deposit Account to any person other than the Administrative
Agent.




(d) Letters of Credit. If any Debtor is at any time a beneficiary under a
Letter of Credit now or hereafter issued in favor of such Debtor having a stated amount in
excess of $100,000 and a remaining term of at least three months, such Debtor shall promptly
notify the Administrative Agent thereof and such Debtor shall, at the request of the
Administrative Agent, use commercially reasonable efforts to enter into an agreement in form
and substance reasonably satisfactory to the Administrative Agent, either (i) arranging for
the issuer and any confirmer of such Letter of Credit to consent to an assignment to the
Administrative Agent of the proceeds of any drawing under the Letter of Credit or (ii)
arranging for the Administrative Agent to become the transferee beneficiary of such Letter
of Credit, with the Administrative Agent agreeing, in each case, that the proceeds of any
drawing under the Letter of Credit are to be applied as provided in the Credit Agreement.




(e) Commercial Tort Claims. If any Debtor shall at any time hold or acquire a
commercial tort claim in an amount estimated to exceed $250,000, such Debtor shall promptly
notify the Administrative Agent in writing signed by such Debtor of the brief details
thereof and grant to the Administrative Agent in such writing a security interest therein
and in the Proceeds thereof, all upon the terms of this Agreement, with such writing to be
in form and substance reasonably satisfactory to the Administrative Agent.




(f) Securities Collateral.




(i) No Debtor shall take any action that would result in (A) the revocation of any
election to treat any Securities Collateral as certificated securities, and (B) an election
to treat as certificated securities any Securities Collateral that constitute uncertificated
securities.




(ii) So long as Administrative Agent has not exercised remedies with respect to the
Collateral under this Agreement or any other Loan Document upon the occurrence and during
the continuation of an Event of Default, Debtors reserve and have the right (A) to exercise
all voting and other rights, title and interest with respect to the Collateral (except as
limited by the Loan Documents) and (B) to receive all income, gains, profits, dividends and
other distributions or payments from the Collateral whether non-cash dividends, cash,
options, warrants, stock splits, reclassifications, rights, instruments or other investment
property or 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 rights and interests (except
as limited by the Loan Documents); provided that no vote shall be cast, right
exercised or other action taken, in each case, in favor of an action that is in violation of
the covenants contained in the Loan Documents, and provided further, that any
receipts described in the foregoing clause (B) consisting of rights or interests in the form
of securities shall be immediately delivered to the Administrative Agent to hold as
Collateral, be segregated from the other property or funds of such Debtor and be delivered
to the Administrative Agent as Collateral in the same form as so received (with any
necessary endorsement).




(iii) In furtherance of the right of the Administrative Agent to exercise voting rights
following the occurrence and during the continuance of an Event of Default, each Debtor
shall, at the request of the Administrative Agent, execute and deliver to the Administrative
Agent a proxy in a form acceptable to the Administrative Agent with respect to each item of
Securities Collateral owned by it. No Debtor shall grant a proxy that would conflict with
any proxy granted to the Administrative Agent pursuant to the preceding sentence so long as
the Security Interests remain in effect.




(iv) Each Debtor shall, at its sole cost and expense, from time to time execute and
deliver to the Administrative Agent appropriate instruments as the Administrative Agent may
reasonably request in order to permit the Administrative Agent to exercise voting and other
rights which it may be entitled to exercise pursuant to paragraph (iii) above and to receive
the payments described in clause (B) of paragraph (ii) above.




(v) All distributions or other payments described in clause (B) of paragraph (ii) above
which are received by any Debtor contrary to the provisions of such paragraph shall be
received in trust for the benefit of the Administrative Agent, shall be segregated from
funds of such Debtor and shall be paid over to the Administrative Agent as Collateral in the
same form as received (with any necessary endorsement)




5.13 Claims Against Collateral. Each Debtor shall, at its own cost and expense,
defend title to the Collateral and the first priority security interest and Lien granted to the
Administrative Agent with respect thereto against all claims and demands of all persons at any
time claiming any interest therein adverse to the Administrative Agent other than Permitted Liens.
Except as expressly permitted by the Credit Agreement or any other Loan Document, or created
pursuant to a Permitted Lien, there is no agreement, order, judgment decree in effect on the
Closing Date, and no Debtor shall enter into any agreement or take any other action after the
Closing Date that restricts the transferability of any of the Collateral or otherwise impair or
conflict with such Debtor’s obligations or the rights of the Administrative Agent hereunder.



5.14 Joinder of Additional Debtors. The Borrower shall, and shall cause each new

Subsidiary to, execute a Security and Pledge Agreement and deliver to the Lenders such other

documents relating to such new Subsidiaries to the extent required by Section 6.10 of the Credit

Agreement. ARTICLE VI

REMEDIES





6.01 Events of Default, Etc. If any Event of Default shall have occurred and be
continuing:




(a) the Administrative Agent shall have, and in its discretion may exercise, the rights
and remedies with respect to this Agreement as more particularly provided herein or in the
Credit Agreement;




(b) each Debtor shall, upon the reasonable request of the Administrative Agent,
assemble Collateral owned by it (and not otherwise in the possession of the Administrative
Agent or another Person pursuant to any Contractual Obligations in effect between such
Debtor and such Person) at such place or places, reasonably convenient to both the
Administrative Agent and such Debtor, designated in such request;




(c) the Administrative Agent may (but shall not be obligated to), without notice to any
Debtor and at such times as the Administrative Agent in its sole discretion may determine,
exercise any or all of Debtors’ rights in, to and under, or in any way connected to, the
Collateral and the Administrative Agent shall otherwise have and may (but shall not be
obligated to) exercise all of the rights, powers, privileges and remedies with respect to
the Collateral of a secured party under the UCC (whether or not said UCC is in effect in the
jurisdiction where the rights, powers, privileges and remedies are asserted) and such
additional rights, powers, privileges and remedies to which a secured party is entitled
under the laws in effect in any jurisdiction where any rights, powers, privileges and
remedies hereunder may be asserted, including the right, to the maximum extent permitted by
applicable law, to exercise all voting, consensual and other powers of ownership pertaining
to the Collateral as if the Administrative Agent were the sole and absolute owner thereof
(and the Debtors agree to take all such action as may be appropriate to give effect to such
right);




(d) the Administrative Agent may (but shall not be obligated to) make any reasonable
compromise or settlement it deems desirable with respect to any of the Collateral and may
(but shall not be obligated to) extend the time of payment, arrange for payment in
installments, or otherwise modify the terms, of all or any part of the Collateral;




(e) the Administrative Agent may (but shall not be obligated to), in its name or in the
name of any Debtor or otherwise, demand, sue for, collect or receive any money or property
at any time payable or receivable on account of or in exchange for any of the Collateral.
All payments received by any Debtor in respect of the Collateral shall be received in trust
for the benefit of the Administrative Agent, shall be segregated from other funds of such
Debtor and shall be forthwith paid over to the Administrative Agent in the same form as so
received (with any necessary endorsement);




(f) the Administrative Agent may (but shall not be obligated to) sell, lease, assign or
dispose of all or any part of the Collateral which shall then be or shall thereafter come
into the possession, custody or control of the Administrative Agent, any other Secured Party
or any of their respective agents at such place or places as the Administrative Agent deems
best, and for cash or for credit or for future delivery (without thereby assuming any credit
risk), at public or private sale, without demand of performance or notice of intention to
effect any such disposition or of the time or place thereof except such notice as is
required by applicable law and cannot be waived. If, pursuant to applicable law, prior
notice of sale of the Collateral under this Section is required to be given to any Debtor,
each Debtor hereby acknowledges that the minimum time required by such applicable law, or if
no minimum time is specified, ten (10) days, shall be deemed a reasonable notice period.
The Administrative Agent or any other Secured Party or anyone else may be the purchaser,
lessee, assignee or recipient of any or all of the Collateral so disposed of at any public
sale (or, to the maximum extent permitted by applicable law, at any private sale) and
thereafter hold the same absolutely, free from any claim or right of whatsoever kind,
including any right or equity of redemption (statutory or otherwise), of Debtors, any such
demand, notice and right or equity being hereby expressly waived and released to the maximum
extent permitted by applicable law. The Administrative Agent may, without notice or
publication, adjourn any public or private sale or cause the same to be adjourned from time
to time by announcement at the time and place fixed for the sale, and such sale may be made
at any time or place to which the sale may be so adjourned. The Collateral may be sold in
one or more sales, at public or private sale, conducted by any officer or agent of, or
auctioneer or attorney for, the Administrative Agent, at the Administrative Agent’s place of
business or elsewhere, for cash, upon credit or for other property, for immediate or future
delivery, and at such price or prices and on such terms as the Administrative Agent shall
deem appropriate in its reasonable discretion. The Administrative Agent may, in its
reasonable discretion, at any such sale restrict the prospective bidders or purchasers as to
their number, nature of business and investment intention to the extent necessary to comply
with applicable law. Upon any public or private sale the Administrative Agent shall have
the right to deliver, assign and transfer to the purchaser thereof the Collateral so sold.
At any such sale the Collateral may be sold in one lot as an entirety or in separate
parcels. The Administrative Agent shall not be obligated to make any sale pursuant to any
such notice. In case of any sale of all of any part of the Collateral on credit or for
future delivery, the Collateral so sold may be retained by the Administrative Agent until
the full selling price is paid by the purchaser thereof, but neither the Administrative
Agent nor any Secured Party shall incur any liability in case of the failure of such
purchaser to take up and pay for the Collateral so sold, and, in case of any such failure,
such Collateral may again be sold pursuant to the provisions hereof. All cash proceeds of
any such sale, and any other realization upon all or any part of the Collateral may, in the
sole discretion of the Administrative Agent, be held by the Administrative Agent as
collateral for or applied then or at any time thereafter, in whole or in part, by the
Administrative Agent for the benefit of the Secured Parties to the payment and satisfaction
of the Secured Obligations in accordance with Section 6.04;




(g) upon request of the Administrative Agent, each Debtor shall promptly notify (and
each Debtor hereby authorizes the Administrative Agent so to notify) each account debtor in
respect of any Accounts or Instruments that such Collateral has been assigned to the
Administrative Agent hereunder, and that any payments due or to become due in respect of
such Collateral are to be made directly to the Administrative Agent;




(h) to the maximum extent permitted by applicable law, the Administrative Agent shall
have the right to endorse, assign or otherwise transfer to or to register in the name of the
Administrative Agent or any of its nominees or endorse for negotiation any or all of the
Securities Collateral, without any indication that such Securities Collateral is subject to
the Security Interests hereunder. In addition, the Administrative Agent shall have the
right at any time to exchange certificates representing or evidencing Securities Collateral
for certificates of smaller or larger denominations;




(i) the Administrative Agent may vote or exercise any and all of the Debtors’ rights or
powers incident to their ownership of the Securities Collateral, including any rights or
powers to manage or control the Guarantors, and in connection therewith, each Debtor agrees
that, upon request of the Administrative Agent, such Debtor will, at its own expense, (A)
provide the Administrative Agent with such information and projections as may be necessary
or, in the opinion of the Administrative Agent, advisable to enable the Administrative Agent
to effect the sale of such Securities Collateral; and (B) do or cause to be done all such
other acts and things (other than registration of such securities) as may be necessary to
make such sale of such Securities Collateral or any part thereof valid and binding and in
compliance with applicable law.




(j) the Administrative Agent may cause any action at law or suit in equity or other
proceeding to be instituted and prosecuted to enforce any rights vested in it by this
Agreement or by law or included in the Collateral, subject to the provisions and
requirements hereof and thereof, or to aid in the exercise of any power herein or therein
granted, or for any foreclosure hereunder and sale under a judgment or decree in any
judicial proceeding;




(k) in connection with any acceleration and foreclosure, the Administrative Agent may
lawfully and peacefully take possession of the Collateral and lawfully and peacefully render
it usable and repair and renovate the same, without, however, any obligation to do so, and
lawfully and peacefully enter upon any location where the Collateral may be located for that
purpose, control, manage, operate, rent and lease the Collateral, collect all rents and
income from the Collateral and apply the same to reimburse the Secured Parties for any cost
or expenses incurred hereunder or under any of the Loan Documents and to the payment or
performance of any Debtor’s obligations hereunder or under any of the Loan Documents, and
apply the balance to the other Secured Obligations and any remaining excess balance to
whomsoever is legally entitled thereto;




(l) to the maximum extent permitted by applicable law, the Administrative Agent may
secure the appointment of a receiver for the Collateral or any part thereof;




(m) the Administrative Agent may lawfully and peacefully occupy any premises owned or
leased by any Debtor where the Collateral or any part thereof is assembled for a reasonable
period in order to effectuate its rights and remedies hereunder or under law, without
obligation to any Debtor in respect of such occupation;




(n) the Administrative Agent may give instructions to the issuer of any Securities
Collateral that is an uncertificated security with respect to such uncertificated security.



Each Debtor recognizes that, by reason of certain prohibitions contained in the Securities Act
of 1933, as amended, and applicable state securities laws, the Administrative Agent may be
compelled, subject to the notice provision provided for in paragraph (f) of this Article
ARTICLE VI, with respect to any sale of all or any part of the Collateral constituting a
security (as such term is defined in the Securities Act of 1933), to limit purchasers to those who
will agree, among other things, to acquire the Collateral for their own account, for investment and
not with a view to the distribution or resale thereof. Each Debtor acknowledges that any such
private sale may be at prices and on terms less favorable to the Administrative Agent than those
obtainable through a public sale without such restrictions, and, notwithstanding such
circumstances, agrees that any such private sale shall be deemed to have been made in a
commercially reasonable manner and that the Administrative Agent shall have no obligation to engage
in public sales and no obligation to delay the sale of any Collateral for the period of time
necessary to permit any Debtor or the issuer thereof to register it for public sale.




6.02 Deficiency. If the proceeds of sale, collection or other realization of or upon
the Collateral by virtue of the exercise of remedies under Article VI are insufficient to
cover the costs and expenses of such exercise and the payment in full of the Secured Obligations,
the Administrative Agent shall retain all rights and remedies under the Loan Documents, and each
Debtor shall remain liable, with respect to any deficiency.




6.03 Private Sale. The Administrative Agent and the other Secured Parties shall
incur no liability as a result of the sale, lease or other disposition of all or any part of the
Collateral, at any private sale pursuant to Article VI conducted in a commercially
reasonable manner. Subject to and without limitation of the preceding sentence, Debtor hereby
waives any claims against the Administrative Agent or any other Secured Party arising by reason of
the fact that the price at which the Collateral may have been sold at such a private sale was less
than the price that might have been obtained at a public sale or was less than the aggregate
amount of the Secured Obligations, even if the Administrative Agent accepts the first offer
received and does not offer the Collateral to more than one offeree.




6.04 Application of Proceeds. Except as otherwise herein expressly provided, the
proceeds of any collection, sale or other realization of all or any part of the Collateral
pursuant hereto, and any other cash at the time held by the Administrative Agent under this
Article VI, shall be applied by the Administrative Agent as follows:




First, to the payment of the costs and expenses of such exercise of remedies,
including reasonable out of pocket costs and expenses of the Administrative Agent, the reasonable
fees and expenses of its agents and counsel and all other reasonable expenses incurred and
advances made by the Administrative Agent in that connection;




Second, to the payment in full of the remaining Secured Obligations equally and
ratably in accordance with their respective amounts then due and owing in respect of the Loan
Documents, or as the Secured Parties holding the same may otherwise agree; and




Finally, to the pay to the Borrower, or its successors or assigns, or as a court of
competent jurisdiction may direct, any surplus then remaining.




6.05 Attorney-in-Fact. Without limiting any rights or powers granted by this
Agreement to the Administrative Agent while no Event of Default has occurred and is continuing,
upon the occurrence and during the continuance of any Event of Default, each Debtor hereby
appoints the Administrative Agent as the attorney-in-fact of such Debtor for the purpose of
carrying out the provisions of this Article ARTICLE VI and taking any action and executing
any instruments that the Administrative Agent may deem necessary or desirable to accomplish the
purposes hereof, which appointment as attorney-in-fact is irrevocable and coupled with an interest
(but the Administrative Agent shall not be obligated to and shall have no liability to such Debtor
or any third party for failure to do so or take action). Without limiting the generality of the
foregoing, so long as the Administrative Agent shall be entitled under this Article VI to
make collections in respect of the Collateral, the Administrative Agent shall have the right and
power




(a) to receive, endorse and collect all checks made payable to the order of any Debtor
representing any dividend, payment or other distribution in respect of the Collateral or any
part thereof and to give full discharge for the same.




(b) to file any claims or take any action or institute any proceedings in connection
therewith which the Secured Party may deem to be necessary or advisable;




(c) to pay, settle or compromise all bills and claims which may be or become liens or
security interests against any or all of the Collateral, or any part thereof, unless a bond
or other security satisfactory to the Secured Party has been provided; and




(d) upon foreclosure, to do any and every act which any Debtor may do on its behalf
with respect to the Collateral or any part thereof and to exercise any or all of such
Debtor’s rights and remedies under any or all of the Collateral;



provided, however, that the Secured Party shall not exercise any such rights except
upon the occurrence and continuation of an Event of Default. This power of attorney is a power
coupled with an interest and shall be irrevocable. In the event the Administrative Agent desires
to exercise any of the foregoing rights and determines it necessary to obtain any approvals or
consents of any Governmental Authority or any other Person therefor, then, upon the request of the
Administrative Agent, the applicable Debtor agrees to assist the Administrative Agent in obtaining
as soon as practicable any necessary approvals or consents for the exercise of any such remedies,
rights and powers. Each Debtor hereby ratifies all that such attorney shall lawfully do or cause
to be done by virtue hereof.




6.06 Expenses.




(a) Subject to Section 10.5 of the Credit Agreement, the Administrative Agent may
incur, and Debtors shall pay to the Administrative Agent, all reasonable and documented fees
and out-of-pocket expenses (including reasonable fees and expenses for legal services) of,
or incident to, the enforcement of any of the provisions of this Article VI, or
exercise by experts, agents or attorneys selected by the Administrative Agent in good faith
of any rights or privileges of Debtors in respect of the Collateral, or any actual or
attempted sale, or any exchange, enforcement, collection, compromise or settlement in
respect of any of the Collateral, and for the care of the Collateral and defending or
asserting rights and claims of the Administrative Agent and the other Secured Parties in
respect thereof, by litigation or otherwise, and all such fees and expenses and, to the
extent such amounts are not timely paid, together with interest thereon at the applicable
rate provided for in Section 2.9 of the Credit Agreement, shall be Secured Obligations of
the Administrative Agent secured under Article II. All amounts payable by the
Debtors under this Section 6.06(a) shall be payable within ten (10) Business Days of
demand thereof.




(b) The terms, conditions, covenants and agreements to be observed or performed by each
Debtor under this Agreement shall be observed or performed by it at its sole cost and
expense.




6.07 Administrative Agent’s Right to Perform on Debtor’s Behalf. If any Debtor fails
to perform any of its obligations under this Agreement, the Administrative Agent may (but shall
not be obligated to), upon reasonable notice to such Debtor, unless such Debtor is diligently
pursuing a cure for such failure that cannot be obtained more quickly by the Administrative
Agent’s performance as specified herein, itself perform or cause to be performed such obligations
at the expense of such Debtor, either in its name or in the name and on behalf of such Debtor.




6.08 Custody and Preservation. The Administrative Agent’s obligation to use
reasonable care in the custody and preservation of Collateral shall be satisfied if it uses the
same care as it uses in the custody and preservation of its own property.




6.09 Preservation of Rights. Neither the Administrative Agent nor any Secured Party
shall be required to take any steps to preserve any rights against prior parties to any of the
Collateral.




6.10 Rights of Secured Party. The Administrative Agent or any other Secured Party
may (but shall not be obligated to) pay or secure payment of any Tax or other claim that may be
secured by or result in a Lien on any Collateral upon reasonable notice to the Debtors if the
Debtors shall have failed to pay timely or secure timely such Tax or other claim. The
Administrative Agent or any other Secured Party may (but shall not be obligated to) do any other
thing that it in good faith believes is necessary or desirable to preserve, protect or maintain
the validity, perfection or priority of the security interest created hereby in the Collateral or,
while an Event of Default exists, to enhance the Collateral’s value. Debtors shall immediately
reimburse the Administrative Agent or any other Secured Party for any reasonable payment or
expense (including reasonable attorneys’ fees and expenses) that the Administrative Agent or such
other Secured Party may incur pursuant to this Section 6.10.




6.11 No Marshalling. Neither the Administrative Agent nor any other Secured Party
shall be required to marshal any present or future collateral security (including but not limited
to the Collateral) for, or other assurances of payment of, the Obligations or any of them or to
resort to such collateral security or other assurances of payment in any particular order.




6.12 Remedies Cumulative. No right, power or remedy herein conferred upon or
reserved to the Administrative Agent or any Secured Party is intended to be exclusive of any other
right, power or remedy, and every such right, power and remedy shall, to the extent permitted by
law, be cumulative and in addition to every other right, power and remedy given hereunder or now
or hereafter existing at law or in equity or otherwise. The assertion or employment of any right
or remedy hereunder or otherwise shall not prevent the concurrent assertion or employment of any
other appropriate right or remedy. Resort to any or all security now or hereafter held by the
Administrative Agent may be taken concurrently or successively and in one or several consolidated
or independent judicial actions or lawfully taken nonjudicial proceedings, or both.



ARTICLE VII

MISCELLANEOUS





7.01 Waivers of Rights Inhibiting Enforcement. Each Debtor waives, for itself and
all who may claim under it, to the maximum extent permitted by applicable law:




(a) any claim that, as to any part of the Collateral, a public sale, should the
Administrative Agent elect so to proceed, is, in and of itself, not a commercially
reasonable method of sale for the Collateral;




(b) the right to assert in any action or proceeding between it and the Administrative
Agent any offsets or counterclaims that it may have;




(c) except as otherwise provided in this Agreement, NOTICE OR JUDICIAL HEARING IN
CONNECTION WITH THE ADMINISTRATIVE AGENT’S TAKING POSSESSION OR DISPOSITION OF ANY OF THE
COLLATERAL INCLUDING ANY AND ALL PRIOR NOTICE AND HEARING FOR ANY PREJUDGMENT REMEDY OR
REMEDIES AND ANY SUCH RIGHT THAT ANY DEBTOR WOULD OTHERWISE HAVE UNDER THE CONSTITUTION OR
ANY STATUTE OF THE UNITED STATES OR OF ANY STATE, AND ALL OTHER REQUIREMENTS AS TO THE TIME,
PLACE AND TERMS OF SALE OR OTHER REQUIREMENTS WITH RESPECT TO THE ENFORCEMENT OF THE
ADMINISTRATIVE AGENT’S RIGHTS HEREUNDER;




(d) all rights of redemption, appraisement, valuation, stay, extension or moratorium;
and




(e) the right to invoke any law requiring marshalling of collateral and all other
rights the exercise of which would, directly or indirectly, prevent, delay or inhibit the
enforcement of any of the rights or remedies of the Administrative Agent and the other
Secured Parties under this Agreement or the absolute sale of the Collateral, now or
hereafter in force under any applicable law.




7.02 Notices. The Administrative Agent or any Debtor shall give any notice, request,
demand or other communication (a “Notice”) pursuant to this Agreement in accordance with
Section 10.2 of the Credit Agreement. Any Notice to the Debtor shall be sent to the address of
the Borrower set forth in the Credit Agreement or to such other address provided by such Debtor to
the Administrative Agent in writing. Any Notice sent as hereinabove provided shall be deemed
delivered upon receipt or refusal of delivery.




7.03 Assignment. No Debtor may assign any of its rights or delegate any performance
under this Agreement (whether voluntarily or involuntarily, by merger, consolidation, dissolution,
operation of law or any other manner) except with the prior written consent of the Administrative
Agent, which consent may be withheld in the Administrative Agent’s sole discretion. Any purported
assignment without such consent is void. When any Lender assigns or otherwise transfers any
interest held by it under the Credit Agreement or other Loan Document to any other Person pursuant
to the terms of the Credit Agreement or such other Loan Document, that other Person shall
thereupon become vested with all the benefits held by such Lender under this Agreement.




7.04 Successors and Assigns. This Agreement binds the Debtors and their respective
successors and assigns and inures to the benefit of the Administrative Agent, the Secured Parties
and their respective successors and assigns.




7.05 Amendment and Waiver. No amendment or waiver of any provision of this
Agreement, nor consent to any departure by any Debtor therefrom, shall in any event be effective
unless the same shall be in writing and signed by the Administrative Agent, the Borrower and the
other Debtors; provided that any amendment, waiver, or consent shall be signed by the
Required Lender or all of the Lenders to the extent required by Section 10.1 of the Credit
Agreement. Any such waiver or consent shall be effective only in the specific instance and for
the specific purpose for which given.




7.06 No Implied Waiver. No failure or delay in exercising any right, power or
privilege or requiring the satisfaction of any condition hereunder, and no course of dealing
between the Debtors and the Administrative Agent operates as a waiver or estoppel of any right,
remedy or condition. No single or partial exercise of any right or remedy under this Agreement
precludes any simultaneous or subsequent exercise of any other right, power or privilege. The
rights and remedies set forth in this Agreement are not exclusive of, but are cumulative to, any
rights or remedies now or subsequently existing at law, in equity or by statute.




7.07 Severability. In case one or more provisions of this Agreement shall be
invalid, illegal or unenforceable in any respect under any applicable law, the validity, legality,
and enforceability of the remaining provisions contained herein or therein shall not be affected
or impaired thereby.




7.08 Entire Agreement. This Agreement and the other Loan Documents contain the
entire agreement between the parties relating to the subject matter hereof and supersede all prior
or contemporaneous oral or written negotiations and agreements relating to the subject matter
hereof. The provisions of this Agreement may not be explained, supplemented or qualified through
evidence or trade usage or a prior course of dealing. In entering into this Agreement, the
Debtors have not relied upon any statement, representation, warranty or agreement of the
Administrative Agent except as set forth in the Loan Documents. There are no conditions precedent
to the effectiveness of this Agreement. In the event of any conflict between the terms of this
Agreement and the terms of the Credit Agreement, the terms of the Credit Agreement shall control.




7.09 Execution in Counterparts. This Agreement may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which taken together shall constitute one
and the same agreement.




7.10 Governing Law. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
UNDER THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE
LAW OF THE STATE OF NEW YORK, EXCEPT TO THE EXTENT THAT THE VALIDITY OR PERFECTION OF THE SECURITY
INTERESTS HEREUNDER, OR REMEDIES HEREUNDER, IN RESPECT OF ANY PARTICULAR COLLATERAL ARE GOVERNED
BY THE LAWS OF A JURISDICTION OTHER THAN THE STATE OF NEW YORK.




7.11 Headings. The descriptive headings of the articles, sections and subsections of
this Agreement are for convenience only and do not constitute a part of this Agreement.




7.12 Interpretation. This Agreement has been reviewed and negotiated by counsel for
both the Debtors and the Administrative Agent and, consequently, this Agreement shall not be
construed against the drafter.




7.13 Waiver of Jury Trial. THE DEBTORS AND THE ADMINISTRATIVE AGENT HEREBY
IRREVOCABLY WAIVE ANY AND ALL RIGHT TO TRIAL BY JURY IN RESPECT OF ANY LEGAL PROCEEDING ARISING
OUT OF OR RELATING TO THIS AGREEMENT, ANY OTHER LOAN DOCUMENT, OR ANY OF THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY.




7.14 Survival, Etc. The provisions of Sections 2.06, 6.03, 6.06, 6.08, 6.09,
6.10, 7.01, 7.16 and 7.17  shall survive the termination of this Agreement. In addition, the
representations, warranties and covenants of the Debtors set out in this Agreement or contained in
any documents delivered to the Administrative Agent or any other Secured Party pursuant to this
Agreement shall survive the execution and delivery of this Agreement.




7.15 Agents, Etc. The Administrative Agent may employ agents, experts and
attorneys-in-fact in connection herewith and shall not be responsible for the negligence or
misconduct of any such agents, experts or attorneys-in-fact selected by it in good faith.




7.16 Limitation of Liability. NEITHER THE ADMINISTRATIVE AGENT NOR ANY OTHER SECURED
PARTY SHALL HAVE LIABILITY WITH RESPECT TO, AND DEBTORS HEREBY WAIVE, RELEASE AND AGREE NOT TO SUE
FOR:




(a) ANY LOSS OR DAMAGE SUSTAINED BY ANY DEBTOR, OR ANY LOSS, DAMAGE, DEPRECIATION OR
OTHER DIMINUTION IN THE VALUE OF ANY COLLATERAL, THAT MAY OCCUR AS A RESULT OF, IN
CONNECTION WITH, OR THAT IS IN ANY WAY RELATED TO, ANY EXERCISE OF ANY RIGHT OR REMEDY UNDER
THIS AGREEMENT EXCEPT FOR ANY SUCH LOSS, DAMAGE, DEPRECIATION OR DIMINUTION TO THE EXTENT
THAT THE SAME IS THE RESULT OF ACTS OR OMISSIONS ON THE PART OF SUCH SECURED PARTY
CONSTITUTING WILLFUL MISCONDUCT OR GROSS NEGLIGENCE (AS FINALLY DETERMINED BY A COURT OF
COMPETENT JURISDICTION); OR




(b) ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES
SUFFERED BY ANY DEBTOR IN CONNECTION WITH ANY CLAIM RELATED TO THIS AGREEMENT.




7.17 Subrogation. No Debtor shall exercise, and each Debtor hereby irrevocably
waives, any claim, right or remedy that it may now have or may hereafter acquire against any other
Debtor arising under or in connection with this Agreement, including, without limitation, any
claim, right or remedy of subrogation, contribution, reimbursement, exoneration, indemnification
or participation arising under contract, by applicable law or otherwise in any claim, right or
remedy of the Administrative Agent or the other Secured Parties against such Debtor or any other
Person or any Collateral which the Administrative Agent or any other Secured Party may now have or
may hereafter acquire, until the indefeasible payment and satisfaction in full of all Secured
Obligations and the expiration and termination of the Commitments. If, notwithstanding the
preceding sentence, any amount shall be paid to any Debtor on account of such subrogation rights
at any time when any of the Secured Obligations shall not have been paid in full, such amount
shall be held by such Debtor in trust for the Administrative Agent and the other Secured Parties,
segregated from other funds of such Debtor and be turned over to the Administrative Agent in the
exact form received by such Debtor (duly endorsed by such Debtor to the Administrative Agent, if
required), to be applied against the Secured Obligations, whether matured or unmatured, in
accordance with the Loan Documents. Notwithstanding the foregoing, the Debtors shall be expressly
permitted hereunder to make payments to each other to the extent not prohibited by the Credit
Agreement.




7.18 Authority of the Administrative Agent. The rights and responsibilities of the
Administrative Agent under this Agreement with respect to any action taken by the Administrative
Agent or the exercise or non-exercise by the Administrative Agent of any power, right or remedy
provided for or resulting or arising out of this Agreement shall, as between the Administrative
Agent and the Secured Parties, be governed by the Credit Agreement and by such other agreements
with respect thereto as may exist from time to time among them, but, as between the Administrative
Agent and Debtors, the Administrative Agent shall be conclusively presumed to be acting as the
Administrative Agent for the Secured Parties with full and valid authority so to act or refrain
from acting, and Debtors shall be under no obligation or entitlement to make any inquiry
respecting such authority.




7.19 No Release. Nothing set forth in this Agreement or any other Loan Document, nor
the exercise by the Administrative Agent of any of the rights or remedies hereunder, shall relieve
any Debtor from the performance of any term, covenant, condition or agreement on such Debtor’s
part to be performed or observed in respect of any of the Collateral or from any liability to any
person in respect of any of the Collateral or shall impose any obligation on the Administrative
Agent for any act or omission on the part of such Debtor relating thereto or for any breach of any
representation or warranty on the part of such Debtor contained in this Agreement, the Credit
Agreement or the other Loan Documents, or in respect of the Collateral or made in connection
herewith or therewith. Anything herein to the contrary notwithstanding, the Administrative Agent
shall not have any obligation or liability under any contracts, agreements and other documents
included in the Collateral by reason of this Agreement, nor shall the Collateral Agent be
obligated to perform any of the obligations or duties of any Debtor thereunder or to take any
action to collect or enforce any such contract, agreement or other document included in the
Collateral.



[Signatures on following page]





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




MITCHAM INDUSTRIES, INC.,


a Texas corporation



	 	 	 
	By:

Name:

Title:

	 	/s/ Robert P. Capps

Robert P. Capps

Exec Vice Pres






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	 	 	HSBC BANK USA, N.A., not in its individual capacity,
but solely as Administrative Agent





	 	 	 
	By:

Name:

Title:

	 	/s/ Elena Zheng

Elena Zheng

Assistant Vice President







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