Grantors and the Collateral Agent (as
amended and in effect, the "Existing Security Agreement"), pursuant to which
such Grantors granted a Lien in favor of the Collateral Agent, for the benefit
of the Secured Parties, to secure their obligations under the Existing Credit
Agreement.
The Grantors and Collateral Agent, among others, have agreed to amend and
restate the Existing Credit Agreement in its entirety pursuant to that certain
Amended and Restated Credit Agreement of even date herewith by and between,
among others: (i) the Grantors, as either Borrowers or Facility Guarantors,
(ii) the Lenders from time to time party thereto (individually, a "Lender" and,
collectively, the "Lenders"), (iii) Bank of America, N.A. as Collateral Agent
and Administrative Agent for the Secured Parties, and (iv) Bank of America,
N.A., General Electric Capital Corporation and Wells Fargo Retail Finance, LLC,
as Co-Borrowing Base Agents (as amended, restated, supplemented, or otherwise
modified from time to time, the "Credit Agreement").
The Lenders have agreed to make Loans to the Borrowers, and the Issuing Banks
have agreed to issue Letters of Credit for the account of the Borrowers,
pursuant to, and upon the terms and subject to the conditions specified in, the
Credit Agreement.
The obligations of the Lenders to make Loans and of the
Issuing Banks to issue Letters of Credit are each conditioned upon, among other
things, the execution and delivery by the Grantors of this Agreement to secure
the Secured Obligations (as defined herein).
Accordingly, the Grantors and the Collateral Agent, on behalf of itself and each
other Secured Party (as defined herein) (and each of their respective successors
or assigns), hereby agree that the Existing Security Agreement shall be amended
and restated in its entirety to read as follows:
ARTICLE I
Definitions
SECTION 1.1
DEFINITION OF TERMS USED HEREIN. UNLESS THE CONTEXT
OTHERWISE REQUIRES, ALL CAPITALIZED TERMS USED BUT NOT DEFINED HEREIN OR IN THE
CREDIT AGREEMENT SHALL HAVE THE MEANINGS SET FORTH IN THE UCC, AND ALL
REFERENCES TO THE UCC SHALL MEAN THE UNIFORM COMMERCIAL CODE AS IN EFFECT FROM
TIME TO TIME IN THE STATE OF NEW YORK; PROVIDED, HOWEVER, THAT IF A TERM IS
DEFINED IN ARTICLE 9 OF THE UCC DIFFERENTLY THAN IN ANOTHER ARTICLE THEREOF, THE
TERM SHALL HAVE THE MEANING SET FORTH IN ARTICLE 9; AND PROVIDED FURTHER THAT IF
BY REASON OF MANDATORY PROVISIONS OF LAW, PERFECTION, OR THE EFFECT OF
PERFECTION OR NON-PERFECTION, OF THE SECURITY INTEREST IN ANY COLLATERAL OR THE
AVAILABILITY OF ANY REMEDY HEREUNDER 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 EFFECT OF PERFECTION OR
NON-PERFECTION OR AVAILABILITY OF SUCH REMEDY, AS THE CASE MAY BE. CAPITALIZED
TERMS USED BUT NOT OTHERWISE DEFINED HEREIN THAT ARE DEFINED IN THE CREDIT
AGREEMENT SHALL HAVE THE MEANINGS GIVEN TO THEM IN THE CREDIT AGREEMENT.
SECTION 1.2