{"id":41301,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/security-agreement-storage-technology-corp-and-bank-of-america.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"security-agreement-storage-technology-corp-and-bank-of-america","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/finance\/security-agreement-storage-technology-corp-and-bank-of-america.html","title":{"rendered":"Security Agreement &#8211; Storage Technology Corp. and Bank of America NA"},"content":{"rendered":"<pre>\n                               SECURITY AGREEMENT\n\n                  THIS SECURITY AGREEMENT (this \"Agreement\"), dated as of\n                                                 ---------\nOctober 10, 2001 is made by and among Storage Technology Corporation, a Delaware\ncorporation (the \"Company\") and Bank of America, N.A., as Collateral Agent for\n                  -------\nitself and the other Secured Parties referred to below (in such capacity, the\n\"Collateral Agent\").\n ----------------\n                                    RECITALS\n\n                  WHEREAS, the Company, as borrower, certain lending\ninstitutions, as lenders, Keybank National Association as documentation agent,\nFleet Bank as syndication agent and Bank of America, N.A., as administrative\nagent (in such capacity \"Agent\") are parties to a Credit Agreement dated as of\nOctober 10, 2001 (as amended, restated, modified, renewed or extended from time\nto time, the \"Credit Agreement\");\n              ----------------\n\n                  WHEREAS, it is a condition precedent to the closing of the\nCredit Agreement that the Company enter into this Agreement and grant to the\nCollateral Agent, for itself and for the ratable benefit of the other Secured\nParties, the security interests hereinafter provided to secure the obligations\nof the Company described below.\n\n                  NOW, THEREFORE, the parties hereto agree as follows:\n\nSECTION 1         Definitions; Interpretation\n                  ---------------------------\n\n(a) Terms Defined in the Credit Agreement.  All capitalized terms used in this\n    -------------------------------------\nAgreement and not otherwise defined herein shall have the meanings assigned to\nthem in the Credit Agreement.\n\n(b) Certain Defined Terms.  As used in this Agreement, the following terms shall\n    ---------------------\n have the following meanings:\n\n                  \"Accounts\" means any and all of the Company's accounts as such\n                   --------\nterm is defined in Section 9-102 of the UCC owing or payable by a Domestic\nObligor, provided that \"Accounts shall not include Chattel Paper, intercompany\n         --------\nobligations and purchased accounts subject to the Multicurrency Note Purchase\nFacility.\n\n                  \"Affiliate\" means, as to any Person, any other Person which,\n                   ---------\ndirectly or indirectly, is in control of, is controlled by, or is under common\ncontrol with, such Person. A Person shall be deemed to control another Person if\nthe controlling Person possesses, directly or indirectly, the power to direct or\ncause the direction of the management and policies of the other Person, whether\nthrough the ownership of voting securities, membership interests, by contract,\nor otherwise.\n\n                  \"Aggregate Credit\" means, at any time, (a) the aggregate\n                   ----------------\nprincipal amount of the Loans outstanding under the Credit Agreement at such\ntime or (b) if no such Loans are outstanding at such time under the Credit\nAgreement, the aggregate amount of the Commitments in effect under the Credit\nAgreement at such time.\n\n                                       1\n\n\n                  \"Attorney Costs\" means and includes all fees and disbursements\n                   --------------\nof any law firm or other external counsel, the allocated cost of internal legal\nservices and all disbursements of internal counsel.\n\n                  \"Banks\" means the \"Banks\" from time to time party to the\n                   -----\nCredit Agreement.\n\n                  \"BofA\" means Bank of America, N.A., a national banking\n                   ----\nassociation.\n\n                  \"Books\" means all books, records and other written, electronic\n                   -----\nor other documentation in whatever form maintained now or hereafter by or for\nthe Company in connection with the ownership of its assets or the conduct of its\nbusiness or evidencing or containing information relating to the Collateral,\nincluding: (i) ledgers; (ii) records indicating, summarizing, or evidencing the\nCompany's assets, business operations or financial condition; (iii) computer\nprograms and software; (iv) computer discs, tapes, files, manuals and\nspreadsheets; (v) computer printouts and output of whatever kind; (vi) any other\ncomputer prepared or electronically stored, collected or reported information\nand equipment of any kind; and (vii) any and all other rights now or hereafter\narising out of any contract or agreement between the Company and any service\nbureau, computer or data processing company or other Person charged with\npreparing or maintaining any of the Company's books or records or with credit\nreporting, including with regard to the Company's Accounts; provided that\n                                                            --------\n\"Books\" shall not include any books, records, or software sold by the Company to\nBofA or any of its Affiliates pursuant to the Multicurrency Note Purchase\nFacility.\n\n                  \"Chattel Paper\" means any and all of the Company's chattel\n                   -------------\npaper as such term is defined in Section 9 102 of the UCC, including Electronic\nChattel Paper, provided, however, that \"Chattel Paper\" shall not include any\n               --------  -------\ninterests of the Company in purchased accounts subject to the Multicurrency Note\nPurchase Facility.\n\n                  \"Collateral\" has the meaning set forth in Section 2.\n                   ----------\n\n                  \"Credit Agreement\" has the meaning set forth in the Recitals.\n                   ----------------\n\n                  \"Directing Banks\" means at any time Banks then holding at\n                   ---------------\nleast 51% of the Aggregate Credit.\n\n                  \"Documents\" means any of the Borrower's documents, as such\n                   ---------\nterm is defined in Section 9-102 of the UCC.\n\n                  \"Domestic Obligor\" means any Person obligated on an Account or\n                   ----------------\nother Right to Payment who is a resident of or otherwise located in the United\nStates.\n\n                  \"Electronic Chattel Paper\" means any and all of the Company's\n                   ------------------------\nelectronic chattel paper, as such term is defined in Section 9-102 of the UCC.\n\n                  \"Event of Default\" means any \"Event of Default\" under and as\n                   ----------------\ndefined in the Credit Agreement or any other Loan Document\n\n                  \"Financing Statements\" has the meaning set forth in Section 3.\n                   --------------------\n\n                                       2\n\n\n                  \"GAAP\" means generally accepted accounting principles set\n                   ----\nforth from time to time in the opinions and pronouncements of the Accounting\nPrinciples Board and the American Institute of Certified Public Accountants and\nstatements and pronouncements of the Financial Accounting Standards Board (or\nagencies with similar functions of comparable stature and authority within the\nU.S. accounting profession), which are applicable to the circumstances as of the\ndate of determination.\n\n                  \"Governmental Authority\" means any nation or government, any\n                   ----------------------\nstate or other political subdivision thereof, any central bank (or similar\nmonetary or regulatory authority) thereof, any entity exercising executive,\nlegislative, judicial, regulatory or administrative functions of or pertaining\nto government, and any corporation or other entity owned or controlled, through\nstock or capital ownership or otherwise, by any of the foregoing.\n\n                  \"Instruments\" means any and all of the Company's instruments\n                   -----------\nas such term is defined in Section 9-102 of the UCC; provided, however that\n                                                     --------  -------\n\"Instruments\" shall not include any interests of the Company in its\nSubsidiaries.\n\n                  \"Inventory\" means any of the Company's inventory, as such term\n                   ---------\nis defined in Section 9-102 of the UCC which is located in the United States.\n\n                  \"Lien\" means any security interest, mortgage, deed of trust,\n                   ----\npledge, hypothecation, assignment, charge or deposit arrangement, encumbrance,\nlien (statutory or other) or preferential arrangement of any kind or nature\nwhatsoever in respect of any property (including those created by, arising under\nor evidenced by any conditional sale or other title retention agreement, the\ninterest of a lessor under a capital lease, any financing lease having\nsubstantially the same economic effect as any of the foregoing, or the filing of\nany financing statement naming the owner of the asset to which such lien relates\nas debtor, under the UCC or any comparable law) and any contingent or other\nagreement to provide any of the foregoing, but not including the interest of a\nlessor under an operating lease.\n\n                  \"Loan Documents\" means the Loan Documents as defined in the\n                   --------------\nCredit Agreement.\n\n                  \"Material Adverse Effect\" means (a) a material adverse change\n                   -----------------------\nin, or a material adverse effect upon, the operations, business, properties,\ncondition (financial or otherwise) or prospects of the Company and its\nSubsidiaries taken as a whole; (b) a material impairment of the ability of the\nCompany to perform under any Loan Document and to avoid any Event of Default; or\n(c) a material adverse effect upon (i) the legality, validity, binding effect or\nenforceability against the Company of any Loan Document or (ii) the perfection\nor priority of any Lien on any material portion of the Collateral granted under\nany of the Collateral Documents.\n\n                  \"Multicurrency Note Purchase Facility\" means the facility\n                   ------------------------------------\npursuant to the Second Amended and Restated Contingent Multicurrency Note\nPurchase Commitment Agreement dated as of January 15, 1998 (as amended,\nrestated, modified or supplemented from time to time) between the Company and\nBofA, whereby BofA has agreed to purchase certain notes of the Company subject,\nin certain cases, to collateralization in cash and other investments or any\nsimilar facility designed to accomplish the same objectives.\n\n                                       3\n\n\n                  \"Permitted Lien\" means a Lien which is a \"Permitted Lien\"\n                   --------------\nunder the Credit Agreement.\n\n                  \"Person\" means an individual, partnership, corporation,\n                   ------\nlimited liability company, business trust, joint stock company, trust,\nunincorporated association, joint venture, Governmental Authority or any other\nentity of whatever nature.\n\n                  \"Proceeds\" means all proceeds, as such term is defined in\n                   --------\nSection 9-102 of the UCC; provided that \"Proceeds\" shall not include any\n                          --------\npurchased accounts subject to the Multicurrency Note Purchase Facility.\n\n                  \"Proceeds Account\" has the meaning specified in subsection\n                   ----------------\n10(c) hereof.\n\n                  \"Rights to Payment\" means all Accounts and any and all rights\n                   -----------------\nand claims to the payment or receipt of money or other forms of consideration of\nany kind in, to and under all Chattel Paper, Documents, Instruments and\nProceeds.\n\n                  \"Secured Obligations\" means all indebtedness, liabilities and\n                   -------------------\nother obligations of the Company to the Secured Parties created under, or\narising out of or in connection with, the Credit Agreement, the Notes or any of\nthe other Loan Documents, including all unpaid principal of the Loans, all\ninterest accrued thereon, all fees due under the Credit Agreement and all other\namounts payable by the Company to any Secured Party thereunder or in connection\ntherewith, whether now existing or hereafter arising, and whether due or to\nbecome due, absolute or contingent, liquidated or unliquidated, determined or\nundetermined.\n\n                  \"Secured Parties\" means the Collateral Agent, the Banks, the\n                   ---------------\nLead Arranger, the Agent, and each of their respective successors, transferees\nand assigns.\n\n                  \"Subsidiary\" of a Person means any corporation, association,\n                   ----------\npartnership, limited liability company, joint venture, trust or other business\nentity of which more than 50% of the voting stock, membership interests or other\nequity interests (in the case of Persons other than corporations), is owned or\ncontrolled directly or indirectly by the Person, or one or more of the\nSubsidiaries of the Person, or a combination thereof. Unless the context\notherwise clearly requires, references herein to a \"Subsidiary\" refer to a\nSubsidiary of the Company.\n\n                  \"Supporting Obligations\" means all supporting obligations as\n                   ----------------------\nsuch term is defined in Section 9-102 of the UCC.\n\n                  \"UCC\" means the Uniform Commercial Code as the same may, from\n                   ---\ntime to time, be in effect in the State of California; provided, however, in the\n                                                       --------  -------\nevent that, by reason of mandatory provisions of law, any or all of the\nattachment, perfection or priority of the security interest in any Collateral is\ngoverned by the Uniform Commercial Code as in effect in a jurisdiction other\nthan the State of California, the term \"UCC\" shall mean the Uniform Commercial\nCode as in effect in such other jurisdiction for purposes of the provisions\nhereof relating to such attachment, perfection or priority and for purposes of\ndefinitions related to such provisions.\n\n                                       4\n\n\n                  (b) Terms Defined in UCC. Where applicable and except as\n                      --------------------\notherwise defined herein, terms used in this Agreement shall have the meanings\nassigned to them in the UCC.\n\n                  (c) Interpretation.  (i)  The meanings of defined terms are\n                      --------------\nequally applicable to the singular and plural forms of the defined terms.\n\n                  (ii) The words \"hereof,\" \"herein,\" \"hereunder\" and similar\nwords refer to this Agreement as a whole and not to any particular provision of\nthis Agreement; and subsection, Section, Schedule and Exhibit references are to\nthis Agreement unless otherwise specified.\n\n                  (iii) The term \"documents\" includes any and all instruments,\ndocuments, agreements, certificates, indentures, notices and other writings,\nhowever evidenced.\n\n                  (iv) The term \"including\" is not limiting and means \"including\nwithout limitation.\"\n\n                  (v) In the computation of periods of time from a specified\ndate to a later specified date, the word \"from\" means \"from and including\"; the\nwords \"to\" and \"until\" each mean \"to but excluding\", and the word \"through\"\nmeans \"to and including.\"\n\n                  (vi) The term \"property\" includes any kind of property or\nasset, real, personal or mixed, tangible or intangible.\n\n                  (vii) Unless otherwise expressly provided herein, (A)\nreferences to agreements (including this Agreement) and other contractual\ninstruments shall be deemed to include all subsequent amendments and other\nmodifications thereto, but only to the extent such amendments and other\nmodifications are not prohibited by the terms of any Loan Document, and (B)\nreferences to any statute or regulation are to be construed as including all\nstatutory and regulatory provisions consolidating, amending, replacing,\nsupplementing or interpreting the statute or regulation.\n\n                  (viii) The captions and headings of this Agreement are for\nconvenience of reference only and shall not affect the interpretation of this\nAgreement.\n\n                  (ix) This Agreement and other Loan Documents may use several\ndifferent limitations, tests or measurements to regulate the same or similar\nmatters. All such limitations, tests and measurements are cumulative and shall\neach be performed in accordance with their terms. Unless otherwise expressly\nprovided, any reference to any action of the Collateral Agent or the Banks by\nway of consent, approval or waiver shall be deemed modified by the phrase \"in\nits\/their sole discretion.\"\n\n                  (x) This Agreement is the result of negotiations among the\nCollateral Agent, the Company and the other parties, have been reviewed by\ncounsel to the Collateral Agent, the Company and such other parties, and are the\nproduct of all parties. Accordingly, they shall not be construed against the\nBanks or the Collateral Agent merely because of the Collateral Agent's or Banks'\ninvolvement in their preparation.\n\n                                       5\n\n\nSECTION 2         Security Interest\n                  -----------------\n\n(a) Grant of Security Interest. As security for the payment and performance of \n    --------------------------\nthe Secured Obligations, the Company hereby pledges, assigns, transfers,\nhypothecates and sets over to the Collateral Agent, for itself and on behalf of\nand for the ratable benefit of the other Secured Parties, and hereby grants to\nthe Collateral Agent, for itself and on behalf of and for the ratable benefit of\nthe other Secured Parties, a security interest in all of the Company's right,\ntitle and interest in, to and under the following property, wherever located and\nwhether now existing or owned or hereafter acquired or arising (including,\nwithout limitation, any accounts subject to the Multicurrency Note Purchase\nFacility which may hereafter become Collateral pursuant to the operation of the\nLoan Documents): (i) all Accounts; (ii) all Chattel Paper; (iii) all Documents;\n(iv) all Instruments; (v) all Inventory; (vi) all Books; and (vii) all products\nand Proceeds of any and all of the foregoing (collectively, the \"Collateral\")\nand all supporting obligations of any and all of the foregoing.\n\n(b) Company Remains Liable. Anything herein to the contrary notwithstanding, (i)\n    ----------------------\nthe Company shall remain liable under any contracts, agreements and other\ndocuments included in the Collateral, to the extent set forth therein, to\nperform all of its duties and obligations thereunder to the same extent as if\nthis Agreement had not been executed, (ii) the exercise by the Collateral Agent\nof any of the rights hereunder shall not release the Company from any of its\nduties or obligations under such contracts, agreements and other documents\nincluded in the Collateral, and (iii) the Collateral Agent shall not have any\nobligation or liability under any contracts, agreements and other documents\nincluded in the Collateral by reason of this Agreement, nor shall the Collateral\nAgent be obligated to perform any of the obligations or duties of the Company\nthereunder or to take any action to collect or enforce any such contract,\nagreement or other document included in the Collateral hereunder.\n\n(c) Continuing Security Interest.  The Company agrees that this Agreement shall\n    ----------------------------\ncreate a continuing security interest in the Collateral which shall remain in\neffect until terminated in accordance with Section 22.\n\nSECTION 3         Perfection Procedures.\n                  ---------------------\n\n(a) Financing Statements. The Company shall execute and deliver to the\n    --------------------\nCollateral Agent concurrently with the execution of this Agreement, and the\nCompany hereby authorizes the Agent to file (with or without the Company's\nsignature) at any time and from time to time thereafter, all financing\nstatements, continuation financing statements, termination statements, security\nagreements, assignments, warehouse receipts, documents of title, affidavits,\nreports, notices, schedules of account, letters of authority and all other\ndocuments and instruments, in form satisfactory to the Collateral Agent (the\n\"Financing Statements\"), and take all other action, as the Collateral Agent may\nrequest, to perfect and continue perfected, maintain the priority of or provide\nnotice of the Collateral Agent's security interest in the Collateral and to\naccomplish the purposes of this Agreement. Without limiting the generality of\nthe foregoing, the Company ratifies and authorizes the filing by the Agent of\nany financing statements filed prior to the date hereof.\n\n(b) Bailees. Any Person (other than the Agent) at any time and from time to time\n    -------\nholding all or any portion of the Collateral shall be deemed to, and shall, hold\nthe Collateral as the agent of, and as pledge holder for, the Collateral Agent.\nAt any time and from time to time, the Collateral Agent may give notice to any\n\n\n                                       6\n\n\nsuch Person holding all or any portion of the Collateral that such third person\nis holding the Collateral as the agent of, and as pledge holder for, the\nCollateral Agent, and obtain such Person's written acknowledgement thereof.\nWithout limiting the generality of the foregoing, the Company will join with the\nCollateral Agent in notifying any Person who has possession of any Collateral of\nthe Collateral Agent's security interest therein and obtaining an\nacknowledgement from such Person that is holding the Collateral for the benefit\nof the Collateral Agent.\n\n(c) Documents, Etc. The Company shall deliver to the Collateral Agent, or an\n    --------------\nagent designated by it, appropriately endorsed or accompanied by appropriate\ninstruments of transfer or assignment, all Documents and Chattel Paper, and all\nother Rights to Payment at any time evidenced by promissory notes, trade\nacceptances or other instruments, not already delivered hereunder pursuant to\nthis Section 3; provided, however, that unless an Event of Default shall have\n                --------  -------\noccurred and be continuing, the Company shall not be required to deliver any\nDocument, Chattel Paper, promissory note, trade acceptance or other instrument.\nUpon the request of the Collateral Agent, the Company shall mark all Documents,\nInstruments and Chattel Paper with such legends as the Collateral Agent shall\nreasonably specify.\n\n(d) Purchase Money Security Interests. To the extent the Company uses the\n    ---------------------------------\nproceeds of any of the Secured Obligations to purchase Collateral, the Company's\nrepayment of the Secured Obligations shall apply on a \"first-in, first-out\"\nbasis so that the portion of the Secured Obligations used to purchase a\nparticular item of Collateral shall be paid in the chronological order the\nCompany purchased the Collateral.\n\nSECTION 4         Representations and Warranties.\n                  ------------------------------\n\nIn addition to the representations and warranties of the Company set forth in\nthe Credit Agreement, which are incorporated herein by this reference, the\nCompany represents and warrants to the Collateral Agent and each other Secured\nParty that:\n\n(a) Location of Chief Executive Office and Collateral. The Company's chief\n    -------------------------------------------------\nexecutive office and principal place of business (as of the date of this\nAgreement) is located at the address set forth in Schedule 1.\n                                                  ----------\n\n(b) Locations of Books. All locations where Books pertaining to the Rights to\n    ------------------\nPayment are kept, including all equipment necessary for accessing such Books and\nthe names and addresses of all service bureaus, computer or data processing\ncompanies and other Persons keeping any Books or collecting Rights to Payment\nfor the Company, are set forth in Schedule 1.\n                                  ----------\n\n(c) Jurisdiction of Organization and Names. The Company's jurisdiction of\n    --------------------------------------\norganization is as set forth in Schedule 1; and the Company's exact legal name\n                                ----------\nis as set forth in the first paragraph of this Agreement. All trade names and\ntrade styles under which the Company presently conducts its business operations\nare set forth in Schedule 1, and, except as set forth in Schedule 1, the Company\n                 ----------                              ----------\nhas not, at any time in the past two years: (i) been known as or used any other\ncorporate, trade or fictitious name; (ii) changed its name; (iii) been the\nsurviving or resulting corporation in a merger or consolidation; or (iv)\nacquired through asset purchase or otherwise any business of any Person with a\npurchase price in excess of $25 million.\n\n                                       7\n\n\n(d) Collateral. The Company has rights in or power to transfer the Collateral\n    ----------\nand the Company is, and will continue to be, the sole and complete owner of the\nCollateral (or, in the case of after-acquired Collateral, at the time the\nCompany acquires rights in such Collateral, will be the sole and complete owner\nthereof), free from any Lien other than Liens created by or pursuant to the Loan\nDocuments and Permitted Liens.\n\n(e) Enforceability; Priority of Security Interest. (i) This Agreement creates a\n    ---------------------------------------------\nsecurity interest which is enforceable against the Collateral in which the\nCompany now has rights and will create a security interest which is enforceable\nagainst the Collateral in which the Company hereafter acquires rights at the\ntime the Company acquires any such rights; and (ii) upon the filing of Uniform\nCommercial Code financing statements in the appropriate filing offices in each\njurisdiction identified in Schedule 1 where Collateral is located and except for\nPermitted Liens, the Collateral Agent has a perfected and first priority\nsecurity interest in the Collateral in which the Company now has rights, and\nwill have a perfected and first priority security interest in the Collateral in\nwhich the Company hereafter acquires rights at the time the Company acquires any\nsuch rights, in each case securing the payment and performance of the Secured\nObligations and in each case in which a security interest can be filed by the\nfiling of a financing statement.\n\n(f) Other Financing Statements. Other than (i) Financing Statements disclosed to\n    --------------------------\nthe Collateral Agent prior to the date hereof and (ii) Financing Statements in\nfavor of the Collateral Agent on behalf of itself and the other Secured Parties,\nno effective Financing Statement naming the Company as debtor, assignor,\ngrantor, mortgagor, pledgor or the like and covering all or any part of the\nCollateral is on file in any filing or recording office in any jurisdiction.\n\n(g)      Rights to Payment.\n         -----------------\n\n(i) The Rights to Payment represent valid, binding and enforceable obligations\nof the account debtors or other Persons obligated thereon, representing\nundisputed, bona fide transactions completed in accordance with the terms and\nprovisions contained in any documents related thereto, and are and will be\ngenuine, free from Liens, and not subject to any adverse claims, counterclaims,\nsetoffs, defaults, disputes, defenses, discounts, retainages, holdbacks or\nconditions precedent of any kind or character, in each case material to the\nCompany and except to the extent reflected by the Company's reserves for\nuncollectible Rights to Payment or to the extent, if any, that such account\ndebtors or other Persons may be entitled to normal and ordinary course trade\ndiscounts, returns, adjustments and allowances in accordance with Section 5(m),\nor as otherwise disclosed to the Collateral Agent and the Banks in writing;\n\n(ii) to the best of the Company's knowledge and belief (but without independent\ninvestigation), all account debtors and other obligors on the Rights to Payment\nare solvent and generally paying their debts as they come due (except for Rights\nto Payment of account obligors for which the Company has taken adequate reserves\nin accordance with GAAP);\n\n(iii) all Rights to Payment comply in all material respects with all applicable\nlaws concerning form, content and manner of preparation and execution, including\n\n\n                                       8\n\n\nwhere applicable any federal or state consumer credit laws if and when taken as\na whole noncompliance therewith could reasonably result in a Material Adverse\nEffect;\n\n(iv) the Company has not assigned any of its rights under the Rights to Payment\nexcept as provided in this Agreement or as set forth in or permitted by the\nother Loan Documents;\n\n(v) all statements made, all unpaid balances and all other information in the\nBooks and other documentation relating to the Rights to Payment are in all\nmaterial respects true and correct and what they purport to be; and\n\n(vi) the Company has no knowledge of any fact or circumstance which would impair\nin any material respect the validity or collectibility of any material part of\nthe Rights to Payment.\n\n(h) Inventory. Other than spare parts Inventory located at customer sites and\n    ---------\nInventory in the possession of a subcontractor of the Company, as of the date\nhereof, no Inventory is stored with any bailee, warehouseman or similar Person\nor on any premises leased to the Company, nor has any Inventory been consigned\nto the Company or consigned by the Company to any Person or is held by the\nCompany for any Person under any \"bill and hold\" or other arrangement except as\npermitted by Section 5(n) and, in each case, except as set forth in Schedule 1.\n                                                                    ----------\n\n(i) Instruments. All Instruments held by the Company are set forth in \nSchedule 1.\n----------\n\nSECTION 5         Covenants.\n                  ---------\n\nIn addition to the covenants of the Company set forth in the Credit Agreement,\nwhich are incorporated herein by this reference, so long as any of the Secured\nObligations remain unsatisfied or any Bank shall have any commitment to lend\nmoney or otherwise extend credit to the Company under the Loan Documents, the\nCompany agrees that:\n\n(a) Defense of Collateral. The Company will appear in and defend any action,\n    ---------------------\nsuit or proceeding which may affect to a material extent its title to, or right\nor interest in, or the Collateral Agent's right or interest in, the Collateral\nconsistent with customary and prudent business practices.\n\n(b) Preservation of Collateral. The Company will do and perform all reasonable\n    --------------------------\nacts that may be necessary and appropriate to maintain, preserve and protect the\nvalue of the Collateral.\n\n(c) Compliance with Laws, Etc. The Company will comply with all laws,\n    -------------------------\nregulations and ordinances, and all policies of insurance, relating in a\nmaterial way to the possession, operation, maintenance and control of the\nCollateral if the noncompliance therewith could reasonably result in a Material\nAdverse Effect.\n\n(d) Location of Books and Chief Executive Office. The Company will: (i) keep all\n    --------------------------------------------\nBooks pertaining to the Rights to Payment at the locations set forth in Schedule\n                                                                        --------\n1; and (ii) give at least 30 days' prior written notice to the Collateral Agent\n-\nof (A) any changes in any such location where Books pertaining to the Rights to\n\n\n                                       9\n\n\nPayment are kept, including any change of name or address of any service bureau,\ncomputer or data processing company or other Person preparing or maintaining any\nBooks or collecting Rights to Payment for the Company or (B) any change in the\nlocation of the Company's chief executive office or principal place of business.\n\n(e) Change in Name, Identity or Structure. The Company will give at least 30\n    -------------------------------------\ndays' prior written notice to the Collateral Agent of (i) any change in its\nname; (ii) any change in its jurisdiction of organization, (iii) any change in\nthe details of its registration as an organization (or any new such\nregistration); and (iv) any changes in its identity or structure in any manner\nwhich might make any Financing Statement filed hereunder incorrect or\nmisleading; provided that the Company shall not change its jurisdiction of\n            --------\norganization to a jurisdiction outside of the United States.\n\n(f) Maintenance of Records. The Company will keep separate, accurate and\n    ----------------------\ncomplete Books with respect to the Collateral.\n\n(g) Invoicing of Sales. The Company will invoice all of its sales upon forms\n    ------------------\ncustomary in the industry and maintain proof of delivery and customer acceptance\nof goods.\n\n(h) Disposition of Collateral. The Company will not surrender or lose possession\n    -------------------------\nof (other than to the Collateral Agent), sell, lease, rent, or otherwise dispose\nof or transfer any of the Collateral or any right or interest therein, except to\nthe extent permitted by the Credit Agreements.\n\n(i) Liens. The Company will keep the Collateral free of all Liens except\n    -----\nPermitted Liens and Liens arising under the Loan Documents.\n\n(j) Expenses. The Company will pay all validly assessed or incurred expenses of\n    --------\nprotecting, storing, warehousing, insuring, handling and shipping the\nCollateral.\n\n(k) Leased Premises. At the Collateral Agent's request, the Company will use its\n    ---------------\nreasonable best efforts to obtain from each Person from whom the Company leases\nany premises at which any Collateral is at any time present such subordination,\nwaiver, consent and estoppel agreements as the Collateral Agent may require, in\nform and substance satisfactory to the Collateral Agent. Without limiting the\ngenerality of the preceding sentence, the Company hereby covenants to use its\nreasonable efforts to obtain, within sixty (60) days after the date hereof, such\nsubordination, waiver, consent and estoppel agreements as the Collateral Agent\nmay require, in form and substance satisfactory to the Collateral Agent, from\neach Person identified on Schedule 1 from whom the Company leases premises as of\n                          ----------\nthe date hereof.\n\n(l) Rights to Payment.  The Company will:\n    -----------------\n\n(i) if requested by the Collateral Agent (but not more frequently than annually\nor, if there exists an Event of Default and the Directing Banks so require, then\nwith such frequency as the Directing Banks may require), furnish to the\nCollateral Agent full and complete reports, in form and substance satisfactory\nto the Collateral Agent, with respect to the Accounts, including information as\nto concentration, aging, identity of account debtors, letters of credit securing\n\n\n                                       10\n\n\nAccounts, disputed Accounts and other matters, as the Collateral Agent shall\nrequest;\n\n(ii) give only normal discounts, allowances and credits as to Accounts and other\nRights to Payment, in the ordinary course of business, according to normal trade\npractices utilized by the Company, and enforce all Accounts and other Rights to\nPayment strictly in accordance with their terms, and take all such action to\nsuch end as may from time to time be reasonably requested by the Collateral\nAgent, except that the Company may grant any extension of the time for payment\nor enter into any agreement to make a rebate or otherwise to reduce the amount\nowing on or with respect to, or compromise or settle for less than the full\namount thereof, any Account or other Right to Payment, in the ordinary course of\nbusiness, according to normal trade practices utilized by the Company;\n\n(iii) except to the extent arising in the ordinary course of business, if any\ndiscount, allowance, credit, extension of time for payment, agreement to make a\nrebate or otherwise to reduce the amount owing on, or compromise or settle, an\nAccount or other Right to Payment exists or occurs, or if, to the knowledge of\nthe Company, any dispute, setoff, claim, counterclaim or defense exists or has\nbeen asserted or threatened with respect to an Account or other Right to\nPayment, disclose such fact fully to the Collateral Agent in the Books relating\nto such Account or other Right to Payment and in connection with any invoice or\nreport furnished by the Company to the Collateral Agent relating to such Account\nor other Right to Payment;\n\n(iv) in accordance with its sound business judgment perform and comply in all\nmaterial respects with its obligations in respect of the Accounts and other\nRights to Payment;\n\n(v) upon the request of the Collateral Agent during the continuance of any Event\nof Default, (A) notify all or any designated portion of the account debtors and\nother obligors on the Rights to Payment of the security interest hereunder, and\n(B) notify the account debtors and other obligors on the Rights to Payment or\nany designated portion thereof that payment shall be made directly to the\nCollateral Agent or to such other Person or location as the Collateral Agent\nshall specify; and\n\n(vi) during the continuance of any Event of Default, establish such lockbox or\nsimilar arrangements for the payment of the Accounts and other Rights to Payment\nas the Directing Banks acting through the Collateral Agent shall require.\n\n(m) Inventory.  The Company will:\n    ---------\n\n(i) if requested by the Collateral Agent (but not more frequently than annually\nor, if there exists an Event of Default and the Directing Banks so require, then\nat such times as the Directing Banks shall request), prepare and deliver to the\nCollateral Agent a report of all Inventory, in form and substance satisfactory\nto the Collateral Agent;\n\n(ii) (A) other than with respect to any Inventory in the possession of a\nsubcontractor of the Company, not store any material portion of Inventory with a\nbailee, warehouseman or similar Person or on premises leased to the Company\nwithout prior notice to the Collateral Agent and (B), except with respect to\ndemonstration models, Inventory transferred as upgrades to existing customers\nand Inventory shipped to customers awaiting customer acceptance, in each\n\n\n                                       11\n\n\ninstance in the ordinary course of the Company's business, not dispose of any\nmaterial portion of Inventory on a bill-and-hold, guaranteed sale, sale and\nreturn, sale on approval, consignment or similar basis, nor acquire any material\nportion of Inventory from any Person on any such basis without in each case\ngiving the Collateral Agent prior written notice thereof.\n\n(n) Notices, Reports and Information. The Company will (i) notify the Collateral\n    --------------------------------\nAgent of any material claim made or asserted against the Collateral by any\nPerson and of any change in the basic nature of the Collateral or other event\nwhich could materially adversely affect the value of the Collateral or the\nCollateral Agent's Lien thereon (other than commodity fluctuations affecting the\nCompany's industry generally); (ii) furnish to the Collateral Agent such\nstatements and schedules further identifying and describing the Collateral and\nsuch other reports and other information in connection with the Collateral as\nthe Collateral Agent (acting on behalf of the Directing Banks) may reasonably\nrequest, all in reasonable detail; and (iii) upon request of the Collateral\nAgent make such demands and requests for information and reports as the Company\nis entitled to make in respect of the Collateral.\n\n(o) Insurance. (i) The Company shall carry and maintain in full force and\n    ---------\neffect, at the expense of the Company and with financially sound and reputable\ninsurance companies, insurance with respect to the Inventory in such amounts,\nwith such deductibles and covering such risks as is customarily carried by\nPersons engaged in the same or similar business. Upon the request of the\nCollateral Agent or the Directing Banks, and in any event not less often than\nannually, the Company shall furnish the Collateral Agent with full information\nas to such insurance carried by it and, if so requested, copies of all such\ninsurance policies.\n\n                  (ii) If Inventory with a book value exceeding $40,000,000 of\nthe Company shall be materially damaged or destroyed, in whole or in part, by\nfire or other casualty, the Company shall give prompt notice thereof to the\nCollateral Agent. No settlement on account of any loss on any such Inventory\ncovered by insurance shall be made for less than net book value without the\nconsent of the Directing Banks. Any payment exceeding $40,000,000 at any time\nmade to the Company by any insurer with respect to a casualty relating to all or\nany part of the Collateral shall be, at the Company's option, (A) paid to the\nCollateral Agent for application to the Secured Obligations in accordance with\nsubsection 10(d), or (B) reinvested in the production of Inventory constituting\nCollateral hereunder, in each case, within 90 days of the Company's receipt of\nsuch insurance payment (it being understood that the Company may elect to make\npayment to the Collateral Agent under the preceding clause (A), reinvest the\napplicable insurance proceeds under the preceding clause (B), or a combination\nof both).\n\n(p) Ownership by Subsidiaries. The Company will not permit the aggregate value\n    -------------------------\nof all assets of its Subsidiaries that, if owned directly by the Company, would\nconstitute Collateral hereunder to exceed $5,000,000 at any time.\n\nSECTION 6         Collection of Rights to Payment.\n                  -------------------------------\n\nUntil the Collateral Agent exercises its rights hereunder to collect Rights to\nPayment, the Company shall endeavor in the first instance diligently to collect\nall amounts due or to become due on or with respect to the Rights to Payment. At\nthe request of the Collateral Agent, during the continuance of any Event of\nDefault, all remittances received by the Company shall be held in trust for the\n\n\n                                       12\n\n\nCollateral Agent and, in accordance with the Collateral Agent's instructions\n(acting on behalf of the Directing Banks), remitted to the Collateral Agent or\ndeposited to an account with the Collateral Agent in the form received (with any\nnecessary endorsements or instruments of assignment or transfer).\n\nSECTION 7         Authorization; Collateral Agent Appointed Attorney-in-Fact.\n                  ----------------------------------------------------------\n\nThe Collateral Agent shall have the right to, in the name of the Company, or in\nthe name of the Collateral Agent or otherwise, without notice to or assent by\nthe Company, and the Company hereby constitutes and appoints the Collateral\nAgent (and any of the Collateral Agent's officers or employees or Collateral\nAgents designated by the Collateral Agent) as the Company's true and lawful\nattorney-in-fact, with full power and authority to:\n\n(i) file any of the financing statements which must be executed or filed to\nperfect or continue perfected, maintain the priority of or provide notice of the\nCollateral Agent's security interest in the Collateral;\n\n(ii) take possession of and endorse any notes, acceptances, checks, drafts,\nmoney orders or other forms of payment or security and collect any Proceeds of\nany Collateral;\n\n(iii) sign and endorse any invoice or bill of lading relating to any of the\nCollateral, warehouse or storage receipts, drafts against customers or other\nobligors, assignments, notices of assignment, verifications and notices to\ncustomers or other obligors;\n\n(iv) notify the U.S. Postal Service and other postal authorities to change the\naddress for delivery of mail addressed to the Company to such address as the\nCollateral Agent may designate (provided that, if the U.S. Postal Service or\n                                --------\nsuch other postal authorities agree to do so, and it is not impractical to do\nso, only such mail as relates to the Collateral shall be sent to such address as\nthe Collateral Agent shall designate, and provided further that the Collateral\n                                          ----------------\nAgent agrees it will promptly deliver over to the Company any mail that does not\nrelate to the Collateral); and, without limiting the generality of the\nforegoing, establish with any Person lockbox or similar arrangements for the\npayment of the Rights to Payment;\n\n(v) receive, open and dispose of all mail addressed to the Company that purports\nto be from a Domestic Obligor (provided that the Collateral Agent agrees it will\n                               --------\npromptly deliver over to the Company any mail that does not relate to the\nCollateral);\n\n(vi) send requests for verification of Rights to Payment to the customers or\nother obligors of the Company;\n\n(vii) contact, or direct the Company to contact, all account debtors and other\nobligors on the Rights to Payment and instruct such account debtors and other\nobligors to make all payments directly to the Collateral Agent;\n\n(viii) assert, adjust, sue for, compromise or release any claims under any\npolicies of insurance in respect of Collateral;\n\n                                       13\n\n\n(ix) notify each Person maintaining lockbox or similar arrangements for the\npayment of the Rights to Payment to remit all amounts representing collections\non the Rights to Payment directly to the Collateral Agent;\n\n(x) ask, demand, collect, receive and give acquittances and receipts for any and\nall Rights to Payment, enforce payment or any other rights in respect of the\nRights to Payment and other Collateral, grant consents, agree to any amendments,\nmodifications or waivers of the agreements and documents governing the Rights to\nPayment and other Collateral, and otherwise file any claims, take any action or\ninstitute, defend, settle or adjust any actions, suits or proceedings with\nrespect to the Collateral, as the Collateral Agent may deem necessary or\ndesirable to maintain, preserve and protect the Collateral, to collect the\nCollateral or to enforce the rights of the Collateral Agent with respect to the\nCollateral;\n\n(xi) execute any and all endorsements, assignments or other documents and\ninstruments necessary to sell, lease, assign, convey or otherwise transfer title\nin or dispose of the Collateral;\n\n(xii) execute and deliver to any securities intermediary or other Person any\nentitlement order, account control agreement or other notice, document or\ninstrument which the Collateral Agent may deem necessary of advisable to realize\nupon the Collateral; and\n\n(xiii) execute any and all such other documents and instruments, and do any and\nall acts and things for and on behalf of the Company, which the Collateral Agent\nmay deem necessary or advisable to (A) realize upon the Collateral, and (B)\nmaintain, protect and preserve the Collateral and the Collateral Agent's\nsecurity interest therein and to accomplish the purposes of this Agreement.\n\nThe Collateral Agent agrees that, except during the continuance of an Event of\nDefault, it shall not exercise the power of attorney, or any rights granted to\nthe Collateral Agent, pursuant to clauses (ii) through (xii) and (xiii)(A). The\nforegoing power of attorney is coupled with an interest and irrevocable so long\nas the Banks have any commitments to lend money or otherwise extend credit to\nthe Company or the Secured Obligations have not been paid and performed in full.\nThe Company hereby ratifies, to the extent permitted by law, all that the\nCollateral Agent shall lawfully and in good faith do or cause to be done by\nvirtue of and in compliance with this Section 7.\n\nSECTION 8         Collateral Agent Performance of Company Obligations.\n                  ---------------------------------------------------\n\nThe Collateral Agent may perform or pay any obligation which the Company has\nagreed to perform or pay under or in connection with this Agreement, and the\nCompany shall reimburse the Collateral Agent on demand for any amounts paid by\nthe Collateral Agent pursuant to this Section 8.\n\nSECTION 9         Collateral Agent's Duties. \n                  -------------------------\n\nNotwithstanding any provision contained in this Agreement, the Collateral Agent\nshall have no duty to exercise any of the rights, privileges or powers afforded\nto it and shall not be responsible to the Company or any other Person for any\nfailure to do so or delay in doing so. Beyond the exercise of reasonable care to\nassure the safe custody of Collateral in the Collateral Agent's possession and\n\n\n                                       14\n\n\nthe accounting for moneys actually received by the Collateral Agent hereunder,\nthe Collateral Agent shall have no duty or liability to exercise or preserve any\nrights, privileges or powers pertaining to the Collateral.\n\nSECTION 10        Remedies.\n                  --------\n\n(a) Remedies. During the continuance of any Event of Default, the Collateral\nAgent shall have, in addition to all other rights and remedies granted to it in\nthis Agreement or any other Loan Document, all rights and remedies of a secured\nparty under the UCC and other applicable laws. Without limiting the generality\nof the foregoing, the Company agrees that:\n\n(i) The Collateral Agent may peaceably and without notice enter any premises of\nthe Company, take possession of any Collateral, remove or dispose of all or part\nof the Collateral on any premises of the Company or elsewhere, and otherwise\ncollect, receive, appropriate and realize upon all or any part of the\nCollateral, and demand, give receipt for, settle, renew, extend, exchange,\ncompromise, adjust, or sue for all or any part of the Collateral, as the\nCollateral Agent may determine.\n\n(ii) The Collateral Agent may require the Company to assemble all or any part of\nthe Collateral and make it available to the Collateral Agent, at any place and\ntime designated by the Collateral Agent.\n\n(iii) The Collateral Agent may secure the appointment of a receiver of the\nCollateral or any part thereof (to the extent and in the manner provided by\napplicable law).\n\n(iv) The Collateral Agent may sell, resell, lease, use, assign, transfer or\notherwise dispose of any or all of the Collateral in its then condition or\nfollowing any commercially reasonable preparation or processing (utilizing in\nconnection therewith any of the Company's assets, without charge or liability to\nthe Collateral Agent therefor) at public or private sale, by one or more\ncontracts, in one or more parcels, at the same or different times, for cash or\ncredit or for future delivery without assumption of any credit risk, all as the\nCollateral Agent deems advisable; provided, however, that the Company shall be\n                                  --------  -------\ncredited with the net proceeds of sale only when such proceeds are finally\ncollected by the Collateral Agent. The Collateral Agent shall have the right\nupon any such public sale, and, to the extent permitted by law, upon any such\nprivate sale, to purchase the whole or any part of the Collateral so sold, free\nof any right or equity of redemption, which right or equity of redemption the\nCompany hereby releases, to the extent permitted by law. The Company hereby\nagrees that the sending of notice by ordinary mail, postage prepaid, to the\naddress of the Company set forth in Section 12, of the place and time of any\npublic sale or of the time after which any private sale or other intended\ndisposition is to be made, shall be deemed reasonable notice thereof if such\nnotice is sent ten days prior to the date of such sale or other disposition or\nthe date on or after which such sale or other disposition may occur, provided\n                                                                     --------\nthat the Collateral Agent may provide the Company shorter notice or no notice,\nto the extent permitted by the UCC or other applicable law.\n\n(v) Neither the Collateral Agent nor any Bank shall have any obligation to clean\nup or otherwise prepare the Collateral for sale. The Collateral Agent has no\nobligation to attempt to satisfy these Secured Obligations by collecting them\nfrom any other Person liable for them and the Collateral Agent and the Banks may\n\n\n                                       15\n\n\nrelease, modify or waive any Collateral provided by any other Person to secure\nany of the Secured Obligations, all without affecting the Collateral Agent's or\nany Bank's right against the Company. The Company waives any right it may have\nto require the Collateral Agent or any Bank to pursue any third Person or any of\nthe Secured Obligations. The Collateral Agent and the Bank may comply with any\napplicable state or federal law requirements in connection with a disposition of\nthe Collateral and compliance will not be considered adversely to affect the\ncommercial reasonableness of any sale of the Collateral. The Collateral Agent\nmay sell the Collateral without giving any warranty as to the Collateral. The\nCollateral Agent may specifically disclaim any warranties of title or the like.\nThis procedure will not be considered adversely to affect the commercial\nreasonableness of any sale of the Collateral. If the Collateral Agent sells any\nof the Collateral upon credit, the Borrower will be credited only with payments\nactually made by the purchaser, received by the Agent, and applied to the\nIndebtedness of the purchaser. In the event the purchaser fails to pay for the\nCollateral, the Agent may resell the Collateral and the Company shall be\ncredited with the proceeds of the sales.\n\n(b) License. For the purpose of enabling the Collateral Agent to exercise its\n    -------\nrights and remedies under this Section 10 or otherwise in connection with this\nAgreement and the other Loan Documents, the Company hereby grants to the\nCollateral Agent an irrevocable, non-exclusive and assignable license\n(exercisable without payment or royalty or other compensation to the Company) to\nuse, license or sublicense any patents, copyrights, trademarks, trade styles,\ntrade names and all intellectual property, to enable the Collateral Agent (among\nother things) to transfer any of the tangible assets of the Company that are\nincluded in the Collateral.\n\n(c) Proceeds Account. To the extent that any of the Secured Obligations may be\n    ----------------\ncontingent, unmatured or unliquidated (including with respect to undrawn amounts\nunder any letters of credit outstanding under the Credit Agreement) at such time\nas there may exist an Event of Default, the Collateral Agent may, at its\nelection, (i) retain the proceeds of any sale, collection, disposition or other\nrealization upon the Collateral (or any portion thereof) in a special purpose\nnon-interest-bearing restricted deposit account (the \"Proceeds Account\") created\nand maintained by the Collateral Agent for such purpose (which shall constitute\na Deposit Account included within the Collateral hereunder) until such time as\nthe Collateral Agent may elect to apply such proceeds to the Secured\nObligations, and the Company agrees that such retention of such proceeds by the\nCollateral Agent shall not be deemed strict foreclosure with respect thereto;\n(ii) in any manner elected by the Collateral Agent, estimate the liquidated\namount of any such contingent, unmatured or unliquidated claims and apply the\nproceeds of the Collateral against such amount; or (iii) otherwise proceed in\nany manner permitted by applicable law. The Company agrees that the Proceeds\nAccount shall be a blocked account and that upon the irrevocable deposit of\nfunds into the Proceeds Account, the Company shall not have any right of\nwithdrawal with respect to such funds. Accordingly, the Company irrevocably\nwaives until the termination of this Agreement in accordance with Section 22 the\nright to make any withdrawal from the Proceeds Account and the right to instruct\nthe Collateral Agent to honor drafts against the Proceeds Account.\n\n(d) Application of Proceeds. Subject to subsection (c), cash proceeds actually\n    -----------------------\nreceived from the sale or other disposition or collection of Collateral, and any\n\n\n                                       16\n\n\nother amounts received in respect of the Collateral the application of which is\nnot otherwise provided for herein, shall be applied (after payment of any\namounts payable to the Collateral Agent pursuant to Section 8 or Section 14) in\nwhole or in part by the Collateral Agent for the benefit of the Secured Parties\n(as their interests may appear) against all or any part of the Secured\nObligations in the following order: (i) first, to any fees due in respect of the\n                                        -----\nSecured Obligations; (ii) next, to any interest due in respect of the Secured\n                          ----\nObligations; (iii) next, to any principal due in respect of the Secured\n                   ----\nObligations ; and (iv) last, to any other Secured Obligations. Any surplus\n                       ----\nthereof which exists after payment and performance in full of the Secured\nObligations shall be promptly paid over to the Company or otherwise disposed of\nin accordance with the UCC or other applicable law. The Company shall remain\nliable to the Collateral Agent and other Secured Parties for any deficiency\nwhich exists after any sale or other disposition or collection of Collateral.\n\nSECTION 11        Certain Waivers.\n                  ---------------\n\nThe Company waives, to the fullest extent permitted by law, (i) any right of\nredemption with respect to the Collateral, whether before or after sale\nhereunder, and all rights, if any, of marshalling of the Collateral or other\ncollateral or security for the Secured Obligations; (ii) any right to require\nthe Collateral Agent or the Banks (A) to proceed against any Person, (B) to\nexhaust any other collateral or security for any of the Secured Obligations, (C)\nto pursue any remedy in the Collateral Agent's or any of the Banks' power, or\n(D) to make or give any presentments, demands for performance, notices of\nnonperformance, protests, notices of protests or notices of dishonor in\nconnection with any of the Collateral; and (iii) all claims, damages, and\ndemands against the Collateral Agent or any Bank arising out of the\nrepossession, retention, sale or application of the proceeds of any sale of the\nCollateral.\n\nSECTION 12        Notices.\n                  -------\n\nAll notices and other communications hereunder shall be given\nand shall be effective as provided for in Section 11.2 of the Credit Agreement.\n\nSECTION 13        No Waiver; Cumulative Remedies.\n                  ------------------------------\n\nNo failure on the part of the Collateral Agent or any Bank to exercise, and no\ndelay in exercising, any right, remedy, power or privilege hereunder shall\noperate as a waiver thereof, nor shall any single or partial exercise of any\nsuch right, remedy, power or privilege preclude any other or further exercise\nthereof or the exercise of any other right, remedy, power or privilege. The\nrights and remedies under this Agreement are cumulative and not exclusive of any\nrights, remedies, powers and privileges that may otherwise be available to the\nCollateral Agent or any Bank.\n\nSECTION 14        Costs and Expenses; Indemnification; Other Charges.\n                  --------------------------------------------------\n\n(a)      Costs and Expenses.  The Company agrees to pay or reimburse on demand:\n         ------------------\n\n(i) the reasonable out-of-pocket costs and expenses of the Collateral Agent\n(including reasonable Attorney Costs and search, recording and filing fees and\nexpenses, provided, that the Collateral Agent shall deliver reasonably detailed\n          --------\nstatements for such fees and expenses), in connection with the negotiation,\npreparation, execution, delivery and administration of this Agreement, and any\namendments, modifications or waivers of the terms thereof, and the custody of\nthe Collateral;\n\n                                       17\n\n\n(ii) upon the occurrence of an Event of Default, all title, appraisal (including\nthe allocated costs of internal appraisal services, provided, that the\n                                                    --------\nCollateral Agent shall deliver reasonably detailed statements for such fees and\nexpenses), survey, audit, consulting and similar fees, costs and expenses\nincurred or sustained by the Collateral Agent in connection with this Agreement\nor the Collateral; and\n\n(iii) all costs and expenses of the Collateral Agent, the other Secured Parties\n(including reasonable Attorney Costs and search, recording and filing fees and\nexpenses, provided, that the Collateral Agent shall deliver reasonably detailed\nstatements for such fees and expenses), in connection with the enforcement or\nattempted enforcement of, and preservation of any rights or interests under,\nthis Agreement, any out-of-court workout or other refinancing or restructuring\nor in any bankruptcy case, and the protection, sale or collection of, or other\nrealization upon, any of the Collateral, including all expenses of taking,\ncollecting, holding, sorting, handling, preparing for sale, selling, or the\nlike, and other such expenses of sales and collections of Collateral, and any\nand all losses, costs and expenses sustained by the Collateral Agent or any Bank\nas a result of any failure by the Company to perform or observe its obligations\ncontained herein.\n\n(b) Indemnification. The Company hereby agrees to indemnify the Collateral Agent\n    ---------------\nand each Bank, and their respective directors, officers, employees, agents,\ncounsel and other advisors (each an \"Indemnified Person\") against, and hold each\nof them harmless from, any and all liabilities, obligations, losses, claims,\ndamages, penalties, actions, judgments, suits, costs, expenses or disbursements\nof any kind or nature whatsoever (including reasonable Attorney Costs, provided\n                                                                       --------\nthat the Collateral Agent shall deliver reasonably detailed statements for such\nfees and expenses), which may be imposed on, incurred by, or asserted against\nany Indemnified Person, in any way relating to or arising out of this Agreement\nor the transactions contemplated hereby or any action taken or omitted to be\ntaken by it hereunder (the \"Indemnified Liabilities\"); provided that the Company\n                                                       --------\nshall not be liable to any Indemnified Person with respect to Indemnified\nLiabilities arising from such Indemnified Person's gross negligence or willful\nmisconduct. If and to the extent that the foregoing indemnification is for any\nreason held unenforceable, the Company agrees to make the maximum contribution\nto the payment and satisfaction of each of the Indemnified Liabilities which is\npermissible under applicable law.\n\n(c) Other Charges. The Company agrees to indemnify the Collateral Agent and each\n    -------------\nof the Banks against and hold each of them harmless from any and all present and\nfuture stamp, transfer, documentary and other such taxes, levies, fees,\nassessments and other charges made by any jurisdiction by reason of the\nexecution, delivery, performance and enforcement of this Agreement.\n\n(d) Interest. During the existence of any Event of Default, any amounts payable\n    --------\nto the Collateral Agent or any Bank under this Section 14 or otherwise under\nthis Agreement if not paid within two Business Days of demand shall bear\ninterest from the date of such demand until paid in full, at the rate of\ninterest per annum equal to the rate of interest publicly announced from time to\ntime by BofA as its \"prime rate\" plus 2%.\n                                 ----\n\n                                       18\n\n\nSECTION 15        Binding Effect. \n                  --------------\n\nThis Agreement shall be binding upon, inure to the benefit of and be enforceable\nby the Company, the Collateral Agent, each Bank and each Indemnified Person and\ntheir respective successors and assigns.\n\nSECTION 16        Governing Law. \n                  -------------\n\nTHIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW\nOF THE STATE OF CALIFORNIA, EXCEPT AS REQUIRED BY MANDATORY PROVISIONS OF LAW\nAND TO THE EXTENT THE VALIDITY OR PERFECTION OF THE SECURITY INTERESTS\nHEREUNDER, OR THE REMEDIES HEREUNDER, IN RESPECT OF ANY COLLATERAL ARE GOVERNED\nBY THE LAW OF A JURISDICTION OTHER THAN CALIFORNIA.\n\nSECTION 17        Entire Agreement; Amendment.\n                  ---------------------------\n\nThis Agreement, together with the other Loan Documents, embodies the entire\nagreement and understanding among the Company, the Banks, the Collateral Agent\nand the other Secured Parties, and supersedes all prior or contemporaneous\nagreements and understandings of such Persons, verbal or written, relating to\nthe subject matter hereof and thereof and shall not be amended except by the\nwritten agreement of the parties as provided in the Credit Agreement.\n\nSECTION 18        Severability. \n                  ------------   \n\nWhenever possible, each provision of this Agreement shall be interpreted in such\nmanner as to be effective and valid under all applicable laws and regulations.\nIf, however, any provision of this Agreement shall be prohibited by or invalid\nunder any such law or regulation in any jurisdiction, it shall, as to such\njurisdiction, be deemed modified to conform to the minimum requirements of such\nlaw or regulation, or, if for any reason it is not deemed so modified, it shall\nbe ineffective and invalid only to the extent of such prohibition or invalidity\nwithout affecting the remaining provisions of this Agreement, or the validity or\neffectiveness of such provision in any other jurisdiction.\n\nSECTION 19        Counterparts. \n                  ------------\n\nThis Agreement may be executed in any number of counterparts and by different\nparties hereto in separate counterparts, each of which when so executed shall be\ndeemed to be an original and all of which taken together shall constitute but\none and the same agreement.\n\nSECTION 20        Incorporation of Provisions of the Credit Agreement.\n                  ---------------------------------------------------\n\nTo the extent the Credit Agreement contain provisions of general applicability\nto the Loan Documents, such provisions are incorporated herein by this\nreference.\n\nSECTION 21        No Inconsistent Requirements.\n                  ----------------------------\n\nThe Company acknowledges that this Agreement and the other Loan Documents may\ncontain covenants and other terms and provisions variously stated regarding the\nsame or similar matters, and agrees that all such covenants, terms and\nprovisions are cumulative and all shall be performed and satisfied in accordance\nwith their respective terms.\n\nSECTION 22        Termination. \n                  -----------\n\nUpon the termination of the commitments of the Banks to\nlend money or otherwise extend credit to the Company under the Loan Documents\nand payment and performance in full of all Secured Obligations (other than any\ninchoate indemnification obligations thereunder), this Agreement shall terminate\nand the Collateral Agent shall promptly execute and deliver to the Company such\ndocuments and instruments reasonably requested by the Company as shall be\nnecessary to evidence termination of all security interests given by the Company\n\n\n                                       19\n\n\nto the Collateral Agent hereunder; provided, however, that the obligations of\nthe Company under Section 14 shall survive such termination.\n\n    IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement, as\nof the date first above written.\n\n                                      THE COMPANY\n                                      -----------\n\n                                      STORAGE TECHNOLOGY CORPORATION\n\n\n                                      By:\n                                         ---------------------------\n                                      Title: Treasurer\n\n\n                                      THE COLLATERAL AGENT\n                                      --------------------\n\n                                      BANK OF AMERICA, N.A., as Collateral Agent\n\n\n                                      By:\n                                         ---------------------------\n                                     Title:\n\n\n                                       20\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[6846,8959],"corporate_contracts_industries":[9415,9508],"corporate_contracts_types":[9560,9570],"class_list":["post-41301","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-bank-of-america-corp","corporate_contracts_companies-storage-technology-corp","corporate_contracts_industries-financial__banks","corporate_contracts_industries-technology__hardware","corporate_contracts_types-finance","corporate_contracts_types-finance__security"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/41301","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=41301"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=41301"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=41301"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=41301"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}