AMENDED AND RESTATED FIRST LIEN PLEDGE AND SECURITY AGREEMENT

(a)   All capitalized terms used but not otherwise defined herein have the meanings given to them in the Note Purchase Agreement or in Appendix I thereto. All other terms contained in this Security Agreement, unless the context indicates otherwise, have the meanings provided for by the Code to the extent the same are used or defined therein.

(b)   “ Account Debtor ” means any Person who may become obligated to any Note Party under, with respect to, or on account of, an Account, Chattel Paper or General Intangibles (including a payment intangible).

(c)   “ Accounts ” means collectively all “accounts,” as such term is defined in the Code, now owned or hereafter acquired by any Note Party, including (a) all accounts receivable, other receivables, book debts and other forms of obligations (including any such obligations that may be characterized as an account or contract right under the Code), (b) all of each Note Party’s rights in, to and under all purchase orders or receipts for goods or services, (c) all of each Note Party’s rights to any goods represented by any of the foregoing (including unpaid sellers’ rights of rescission, replevin, reclamation and stoppage in transit and rights to returned, reclaimed or repossessed goods), (d) all rights to payment due to any Note Party for property sold, leased, licensed, assigned or otherwise disposed of, for a policy of insurance issued or to be issued, for a secondary obligation incurred or to be incurred, or for services rendered or to be rendered by such Note Party or in connection with any other transaction (whether or not yet earned by performance on the part of such Note Party) and (e) all collateral security of any kind, given by any Account Debtor or any other Person with respect to any of the foregoing.

(d)   “ Code ” means the Uniform Commercial Code as the same may, from time to time, be enacted and in effect in the State of New York; provided , that to the extent that the Code is used to define any term herein or in any other Note Document and such term is defined differently in different Articles of the Code, the definition of such term contained in Article 9 shall govern; provided   further , that in the event that, by reason of mandatory provisions of law, any or all of the attachment, perfection or priority of, or remedies with respect to, First Lien Agent’s or any Note Purchaser’s Lien on any Collateral is governed by the Uniform Commercial Code as enacted and in effect in a jurisdiction other than the State of New York, the term “ Code ” shall mean the Uniform Commercial Code as enacted and in effect in such other jurisdiction solely for purposes of the provisions thereof relating to such attachment, perfection, priority or remedies and for purposes of definitions related to such provisions.

(e)   “ Contracts ” means all “contracts,” as such term is defined in the Code, now owned or hereafter acquired by any Note Party, in any event, including all contracts, undertakings, or agreements (other than rights evidenced by Chattel Paper), Documents or Instruments in or under which any Note Party may now or hereafter have any right, title or interest, including any agreement relating to the terms of payment or the terms of performance of any Account.

(f)   “ Control Letter ” means a letter agreement between First Lien Agent and (i) the issuer of uncertificated securities with respect to uncertificated securities in the name of any Note Party, (ii) a securities intermediary with respect to securities, whether certificated or uncertificated, securities entitlements and other financial assets held in a securities account in the name of any Note Party, (iii) a futures commission merchant or clearing house, as applicable, with respect to commodity accounts and commodity contracts held by any Note Party, whereby, among other things, the issuer, securities intermediary or futures commission merchant, as applicable, disclaims, subordinates or limits its security interest in the applicable financial assets, acknowledges the Lien of First Lien Agent, for the benefit of Senior Note Purchasers, on such financial assets, and agrees to follow the instructions or entitlement orders of First Lien Agent without further consent by the affected Note Party.

(g)   “ Copyrights ” means all of the following now owned or hereafter adopted or acquired by any Note Party: (a) all copyrights and General Intangibles of like nature (whether registered or unregistered), all registrations and recordings thereof, and all applications in connection therewith, including all registrations, recordings and applications in the United States Copyright Office or in any similar office or agency of the United States, any state or territory thereof, or any other country or any political subdivision thereof, and (b) all reissues, extensions or renewals thereof.

(h)   “ License ” means any Copyright License, Patent License, Trademark License or other license of rights or interests now held or hereafter acquired by any Note Party.

(i)   “ Patents ” means all of the following in which any Note Party now holds or hereafter acquires any interest: (a) all letters patent of the United States or of any other country, all registrations and recordings thereof, and all applications for letters patent of the United States or of any other country, including registrations, recordings and applications in the United States Patent and Trademark Office or in any similar office or agency of the United States, any state, or any other country, and (b) all reissues, continuations, continuations-in-part or extensions thereof.

(j)   “ Software ” shall mean all source and object code now owned or hereafter acquired by any Note Party.

(k)   “ Trademarks ” means all of the following now owned or hereafter existing or adopted or acquired by any Note Party: (a) all trademarks, trade names, corporate names, business names, trade styles, service marks, logos, other source or business identifiers, prints and labels on which any of the foregoing have appeared or appear, designs and general intangibles of like nature (whether registered or unregistered and any derivatives thereof), all registrations and recordings thereof, and all applications in connection therewith, including registrations, recordings and applications in the United States Patent and Trademark Office or in any similar office or agency of the United States, any state or territory thereof, or any other country or any political subdivision thereof; (b) all reissues, extensions or renewals thereof; and (c) all goodwill associated with or symbolized by any of the foregoing.

(l)   " Uniform Commercial Code jurisdiction " means any jurisdiction that has adopted all or substantially all of Article 9 as contained in the 2004 Official Text of the Uniform Commercial Code, as recommended by the National Conference of Commissioners on Uniform State Laws and the American Law Institute, together with any subsequent amendments or modifications to the Official Text.

(a)   To secure the prompt and complete payment, performance and observance of all of the Senior Note Obligations (specifically including, without limitation, each Grantor’s Note Obligations arising under the cross-guaranty provisions of Section 10 of the Note Purchase Agreement), the Grantor hereby grants, assigns, conveys, mortgages, pledges, hypothecates and transfers to First Lien Agent, for the benefit of Senior Note Purchasers, a first priority Lien upon all of its right, title and interest in, to and under all personal property and other assets, whether now owned by or owing to, or hereafter acquired by or arising in favor of the Grantor (including under any trade names, styles or derivations thereof), and whether owned or consigned by or to, or leased from or to, the Grantor, and regardless of where located (all of which being hereinafter collectively referred to as the “ Collateral ”), including:

(i)   all Accounts;

(ii)   all Chattel Paper;

(iii)   all Documents;

(iv)   all General Intangibles (including payment intangibles and Software);

(v)   all Goods (including Inventory, Equipment and Fixtures);

(vi)   all Instruments;

(vii)   all Investments;

(viii)   all Deposit Accounts of the Grantor;

(ix)   all money, cash or cash equivalents of the Grantor;

(x)   all supporting obligations and letter-of-credit rights of the Grantor;

(xi)   all commercial tort claims, including, without limitation, those set forth on Schedule I;

(xii)   all Securities and Investment Property, including without limitation the shares of stock or other equity interests listed on Schedule VI;

(xiii)   all Intellectual Property; and

(xiv)   to the extent not otherwise included, all Proceeds, insurance claims and other rights to payments not otherwise included in the foregoing and products of the foregoing and all accessions to, substitutions and replacements for, and rents and profits of, each of the foregoing.

(b)   In addition, to secure the prompt and complete payment, performance and observance of the Senior Note Obligations and in order to induce First Lien Agent and Senior Note Purchasers as aforesaid, the Grantor hereby grants to First Lien Agent, for the benefit of Senior Note Purchasers, a right of setoff against the property of the Grantor held by First Lien Agent or any Senior Note Purchaser, consisting of property described above in Section 2(a) now or hereafter in the possession or custody of or in transit to First Lien Agent or any Senior Note Purchaser, for any purpose, including safekeeping, collection or pledge, for the account of the Grantor, or as to which the Grantor may have any right or power.

(c)   Grantor hereby acknowledges and agrees that upon the payment in full of the Senior Notes, the First Lien Agent shall deliver (or cause to be delivered) to the Second Lien Collateral Agent such Collateral that has been pledged to the Senior Note Purchasers under the Note Purchase Agreement and is in the possession of the First Lien Agent at the time of such payment in full of the Senior Notes, provided , that , in the event any such Collateral comes into the possession of Grantor upon, or at any time following, the payment in full of the Senior Notes, it shall promptly deliver the same to the Second Lien Collateral Agent pursuant hereto.

(d)   Grantor and the First Lien Agent acknowledge their mutual intent that all security interests contemplated herein are given as a contemporaneous exchange for new value to Grantor, regardless of when advances to Grantor are actually made or when the Collateral is created or acquired.

(a)   It is expressly agreed by Grantor that, anything herein to the contrary notwithstanding, the Grantor shall remain liable under each of its Contracts and each of its Licenses to observe and perform all the conditions and obligations to be observed and performed by it thereunder. Neither First Lien Agent nor any Senior Note Purchaser shall have any obligation or liability under any Contract or License by reason of or arising out of this Security Agreement or the granting herein of a Lien thereon or the receipt by First Lien Agent or any Senior Note Purchaser of any payment relating to any Contract or License pursuant hereto. Neither First Lien Agent nor any Senior Note Purchaser shall be required or obligated in any manner to perform or fulfill any of the obligations of the Grantor under or pursuant to any Contract or License, or to make any payment, or to make any inquiry as to the nature or the sufficiency of any payment received by it or the sufficiency of any performance by any party under any Contract or License, or to present or file any claims, or to take any action to collect or enforce any performance or the payment of any amounts which may have been assigned to it or to which it may be entitled at any time or times.

(b)   First Lien Agent may at any time after an Event of Default has occurred and be continuing (or, if an Event of Default shall have occurred and be continuing, if any rights of set-off or contra accounts may be asserted with respect to the following), without prior notice to the Grantor, notify Account Debtors and other Persons obligated on the Collateral that First Lien Agent has a security interest therein, and that payments shall be made directly to First Lien Agent. Upon the request of First Lien Agent during the continuance of an Event of Default, the Grantor shall so notify Account Debtors and other Persons obligated on Collateral. Once any such notice has been given to any Account Debtor or other Person obligated on the Collateral, the Grantor shall not give any contrary instructions to such Account Debtor or other Person without First Lien Agent’s prior written consent.

(c)   First Lien Agent may at any time in First Lien Agent’s own name, in the name of a nominee of First Lien Agent or in the name of the Grantor communicate (by mail, telephone, facsimile or otherwise) with Account Debtors, parties to Contracts and obligors in respect of Instruments to verify with such Persons, to First Lien Agent’s satisfaction, the existence, amount, terms of, and any other matter relating to, Accounts, payment intangibles, Instruments or Chattel Paper. If a Default or Event of Default shall have occurred and be continuing, the Grantor, at its own expense, shall prepare and deliver to First Lien Agent and each Senior Note Purchaser at any time and from time to time promptly upon First Lien Agent’s request the following reports with respect to the Grantor: (i) a reconciliation of all Accounts; (ii) an aging of all such Accounts; (iii) trial balances; and (iv) a test verification of Accounts as First Lien Agent may request. Upon request by First Lien Agent, the Grantor, at its own expense, shall deliver to First Lien Agent the results of each physical verification, if any, which the Grantor may in its discretion have made, or caused any other Person to have made on its behalf, of all or any portion of its Inventory.

(a)   (i) The Grantor has rights in and the power to transfer each item of the Collateral upon which it purports to grant a Lien hereunder free and clear of any and all Liens, other than Permitted Encumbrances.

(b)   No effective security agreement, financing statement, equivalent security or Lien instrument or continuation statement covering all or any part of the Collateral is on file or of record in any public office, except such as may have been filed (i) by the Grantor in favor of First Lien Agent pursuant to this Security Agreement or the other Note Documents, (ii) by the Grantor in favor of the Second Lien Collateral Agent pursuant to the Second Lien Security Agreement or the other Note Documents, and (iii) in connection with any other Permitted Encumbrances.

(c)   This Security Agreement is effective to create a valid and continuing Lien on and upon the filing of the appropriate financing statements in the correct filing office of the respective jurisdictions listed on Schedule II hereto, a perfected Lien in favor of First Lien Agent, for the benefit of Senior Note Purchasers, on the Collateral with respect to which a Lien may be perfected by filing pursuant to the Code. Subject to Permitted Encumbrances, such Lien is superior and prior to the rights of all other Persons and is enforceable as such as against any and all creditors of and purchasers from the Grantor (other than purchasers and lessees of Inventory in the ordinary course of business or to the extent permitted under the Note Purchase Agreement). All action by the Grantor necessary or desirable to protect and perfect such Lien on each item of the Collateral has been duly authorized by the Grantor to be taken by First Lien Agent.

(d)   Schedule III hereto lists, as of the date of this Security Agreement, all Instruments and letter of credit rights of the Grantor evidencing obligations of more than $25,000 individually or in the aggregate. All action by the Grantor necessary or desirable to protect and perfect the Lien of First Lien Agent on each item set forth on Schedule III has been duly taken by the Grantor. The Lien of First Lien Agent, for the benefit of the Senior Note Purchasers, on the Collateral listed on Schedule III hereto is prior to all other Liens, except Permitted Encumbrances, and is enforceable as such against any and all creditors of and purchasers from the Grantor.

(e)   The Grantor’s name as it appears in official filings in the state of its incorporation or other organization, the type of entity of the Grantor (including corporation, partnership, limited partnership or limited liability company), organizational identification number issued by the Grantor’s state of incorporation or organization or a statement that no such number has been issued, the Grantor’s state of organization or incorporation, the location of the Grantor’s chief executive office, principal place of business, and as of the date of this Security Agreement, all offices, warehouses and premises where Collateral is located other than (i) Collateral in transit between Grantor’s locations as indicated on Schedule 5.2.1 of the Note Purchase Agreement, and (ii) Equipment with third parties for repair so long as such Equipment does not exceed $50,000 in the aggregate and at no time will such Equipment remain at a location other than listed in Schedule 5.2.1 of the Note Purchase Agreement for more than 120 days, and the locations of its books and records concerning the Collateral as of the date of this Security Agreement are set forth on Schedule IV  hereto. The Grantor has only one state of incorporation or organization.

(f)   With respect to the Accounts, except as specifically disclosed in the most recent collateral report delivered to the Senior Note Purchasers (i) they represent bona fide sales of Inventory or rendering of services to Account Debtors in the ordinary course of the Grantor’s business and are not evidenced by a judgment or instrument; (ii) to the Grantor’s knowledge, there are no material setoffs, claims or disputes existing or asserted with respect thereto and the Grantor has not made any agreement with any Account Debtor for any extension of time for the payment thereof, any compromise or settlement for less than the full amount thereof, any release of any Account Debtor from liability therefor, or any deduction therefrom except a discount or allowance allowed by the Grantor in the ordinary course of its business and consistent with past practices; (iii) to the Grantor’s knowledge, there are no facts, events or occurrences which impairs the validity or enforceability thereof in any material respect or could reasonably be expected to reduce the amount payable thereunder as shown on the Grantor’s books and records and any invoices, statements and collateral reports delivered to First Lien Agent and Senior Note Purchasers with respect thereto in any material respect; (iv) the Grantor has not received any notice of proceedings or actions which are threatened or pending against any Account Debtor which might result in any adverse change in such Account Debtor’s financial condition; and (v) the Grantor does not have knowledge that any Account Debtor is unable generally to pay its debts as they become due. Further with respect to the Accounts (x) the amounts shown on all invoices, statements and collateral reports which may be delivered to the First Lien Agent with respect thereto are actually owing to the Grantor as indicated thereon and are not contingent in any material respect; (y) no payments have been or shall be made thereon except payments promptly delivered to the applicable Deposit Accounts in the ordinary course of its business and consistent with past practices; and (z) to the Grantor’s knowledge, all Account Debtors have the capacity to contract.

(g)   With respect to any Inventory scheduled or listed on the most recent collateral report delivered to First Lien Agent pursuant to the terms of this Security Agreement or the Note Purchase Agreement, (i) as of the date of this Security Agreement, such Inventory is located at one of the Grantor’s locations set forth on Schedule IV hereto, (iii) subject to Permitted Encumbrances, the Grantor has good, indefeasible and merchantable title to such Inventory and such Inventory is not subject to any Lien or security interest or document whatsoever except for the Lien granted to First Lien Agent, for the benefit of the Senior Note Purchasers, and (iv) except as specifically disclosed in the most recent collateral report delivered to First Lien Agent, such Inventory is of good and merchantable quality in all material respects, free from any material defects.

(h)   The Grantor does not have any interest in, or title to, any Patent, Trademark or Copyright as of the date of this Security Agreement except as set forth in Schedule V hereto. This Security Agreement is effective to create a valid and continuing Lien on and, upon filing of the Copyright Security Agreements with the United States Copyright Office and filing of the Patent Security Agreements and the Trademark Security Agreements with the United States Patent and Trademark Office, perfected Liens in favor of First Lien Agent on the Grantor’s Patents, Trademarks and Copyrights and such perfected Liens are enforceable as such as against any and all creditors of and purchasers from the Grantor except holders of Permitted Encumbrances on any Patent, Trademark or Copyright securing Indebtedness that is permitted under the Note Purchase Agreement. Upon filing of the Copyright Security Agreements with the United States Copyright Office and filing of the Patent Security Agreements and the Trademark Security Agreements with the United States Patent and Trademark Office and the filing of appropriate financing statements listed on Schedule II hereto, all action necessary or desirable to protect and perfect First Lien Agent’s Lien on the Grantor’s Patents, Trademarks or Copyrights has been duly authorized by the Grantor to be taken by First Lien Agent.

(i)   The Securities are not subject to any purchase agreement, voting trust or other agreement affecting, restricting, or limiting the sale, transfer, disposition or voting rights concerning said Securities

(a)   Further Assurances: Pledge of Instruments .

(i)   At any time and from time to time, upon the request of First Lien Agent and at the sole expense of Grantor, the Grantor shall promptly and duly execute and deliver any and all such further instruments and documents and take such further actions as First Lien Agent may reasonably deem desirable to obtain the full benefits of this Security Agreement and of the rights and powers herein granted, including (A) using its commercially reasonable efforts to secure all consents and approvals necessary or appropriate for the collateral assignment to or for the benefit of First Lien Agent of any License or Contract held by the Grantor and to enforce the security interests granted hereunder; and (B) filing any financing or continuation statements under the Code with respect to the Liens granted hereunder or under any other Note Document as to those jurisdictions that are not Uniform Commercial Code jurisdictions.

(ii)   Unless First Lien Agent shall otherwise consent in writing (which consent may be revoked), the Grantor shall deliver to First Lien Agent all Collateral consisting of negotiable documents, certificated securities, and Instruments (in each case, accompanied by stock powers, allonges or other instruments of transfer executed in blank) which are not subject to Permitted Encumbrances, evidencing obligations in excess of $25,000 individually, promptly after such Note Party receives the same.

(iii)   The Grantor shall obtain or use its commercially reasonable efforts to obtain waivers or subordinations of Liens from landlords of property on which material Collateral is located when and to the extent required by the Note Purchase Agreement.

(iv)   If required by the terms of the Note Purchase Agreement and not waived by First Lien Agent in writing (which waiver may be revoked) or if requested by the First Lien Agent or any Senior Note Purchaser, the Grantor shall use commercially reasonable efforts to obtain authenticated Control Letters from each issuer of uncertificated securities, securities intermediary, or commodities intermediary issuing or holding any financial assets or commodities to or for the Grantor.

(v)   The Grantor shall obtain a deposit account control agreement with each bank or financial institution holding a Deposit Account (other than payroll accounts) for the Grantor to the extent required by the Note Purchase Agreement.

(vi)   The Grantor that is or becomes the beneficiary of a letter of credit having face amounts of $25,000 individually, or in the aggregate, or more shall promptly, and in any event within ten (10) Business Days after becoming a beneficiary, notify First Lien Agent thereof and use commercially reasonable efforts to enter into a tri-party agreement with First Lien Agent and the issuer and/or confirmation bank with respect to letter-of-credit rights assigning such letter-of-credit rights to First Lien Agent and directing all payments thereunder to the collection account, all in form and substance reasonably satisfactory to First Lien Agent.

(vii)   The Grantor shall take all steps reasonably necessary to grant the First Lien Agent control of all electronic chattel paper in accordance with the Code and all “transferable records” as defined in each of the Uniform Electronic Transactions Act and the Electronic Signatures in Global and National Commerce Act. 

(viii)   The Grantor hereby irrevocably authorizes the First Lien Agent at any time and from time to time to file in any filing office in any Uniform Commercial Code jurisdiction any initial financing statements and amendments thereto that (a) indicate the Collateral is described as set forth in Section 2, hereof, regardless of whether any particular asset comprised in the Collateral falls within the scope of Article 9 of the Code or such jurisdiction, or as being of an equal or lesser scope or with greater detail and (b) contain any other information required by part 5 of Article 9 of the Code for the sufficiency or filing office acceptance of any financing statement or amendment, including (i) whether the Grantor is an organization, the type of organization and any organization identification number issued to the Grantor, and (ii) in the case of a financing statement filed as a fixture filing or indicating Collateral as as-extracted collateral or timber to be cut, a sufficient description of real property to which the Collateral relates. The Grantor agrees to furnish any such information to the First Lien Agent promptly upon request. The Grantor also ratifies its authorization for the First Lien Agent to have filed in any Uniform Commercial Code jurisdiction any initial financing statements or amendments thereto if filed prior to the date hereof.

(ix)   The Grantor shall promptly, and in any event within ten (10) Business Days after the same is acquired by it in which the claim exceeds $100,000, notify First Lien Agent of any commercial tort claim (as defined in the Code) acquired by it and unless otherwise consented by First Lien Agent, the Grantor shall enter into a supplement to this Security Agreement, granting to First Lien Agent a Lien in such commercial tort claim.

(x)   Upon any Subs