EX-10.4






Exhibit 10.4




 

 






GUARANTEE AND COLLATERAL AGREEMENT




among




DEX MEDIA WEST, INC.,




DEX MEDIA WEST LLC




and certain of their Subsidiaries




and




JPMORGAN CHASE BANK, N.A.,




as Collateral Agent




Dated as of June 6, 2008




 

 












 











TABLE OF CONTENTS




	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Page	 
	 
	 	 	 	 	 	 	 	 
	SECTION 1.	 	DEFINED TERMS	 	 	1	 
	 
	 	1.1	 	Definitions	 	 	1	 
	 
	 	1.2	 	Other Definitional Provisions	 	 	5	 
	 
	 	 	 	 	 	 	 	 
	SECTION 2.	 	GUARANTEE	 	 	5	 
	 
	 	2.1	 	Guarantee	 	 	5	 
	 
	 	2.2	 	Right of Contribution	 	 	6	 
	 
	 	2.3	 	No Subrogation	 	 	6	 
	 
	 	2.4	 	Amendments, etc. with respect to the Borrower Obligations	 	 	6	 
	 
	 	2.5	 	Guarantee Absolute and Unconditional	 	 	6	 
	 
	 	2.6	 	Reinstatement	 	 	7	 
	 
	 	2.7	 	Payments	 	 	7	 
	 
	 	 	 	 	 	 	 	 
	SECTION 3.	 	GRANT OF SECURITY INTEREST	 	 	7	 
	 
	 	3.1	 	Grant of Security Interest	 	 	7	 
	 
	 	3.2	 	Excluded Property	 	 	8	 
	 
	 	 	 	 	 	 	 	 
	SECTION 4.	 	REPRESENTATIONS AND WARRANTIES	 	 	8	 
	 
	 	4.1	 	Title; No Other Liens	 	 	8	 
	 
	 	4.2	 	Perfected First Priority Lien	 	 	9	 
	 
	 	4.3	 	Jurisdiction of Organization; Chief Executive Office	 	 	9	 
	 
	 	4.4	 	Farm Products	 	 	9	 
	 
	 	4.5	 	Investment Property	 	 	9	 
	 
	 	4.6	 	Receivables	 	 	10	 
	 
	 	4.7	 	Intellectual Property	 	 	10	 
	 
	 	4.8	 	Deposit Accounts, Securities Accounts	 	 	10	 
	 
	 	 	 	 	 	 	 	 
	SECTION 5.	 	COVENANTS	 	 	10	 
	 
	 	5.1	 	Delivery of Instruments, Certificated Securities and Chattel Paper	 	 	10	 
	 
	 	5.2	 	Maintenance of Insurance	 	 	11	 
	 
	 	5.3	 	Payment of Obligations	 	 	11	 
	 
	 	5.4	 	Maintenance of Perfected Security Interest; Further Documentation	 	 	11	 
	 
	 	5.5	 	Changes in Locations, Name, etc.	 	 	12	 
	 
	 	5.6	 	Notices	 	 	12	 
	 
	 	5.7	 	Investment Property	 	 	12	 
	 
	 	5.8	 	Receivables	 	 	13	 
	 
	 	5.9	 	Intellectual Property	 	 	13	 
	 
	 	5.10	 	Commercial Tort Claims	 	 	14	 
	 
	 	5.11	 	Deposit Accounts, Securities Accounts	 	 	14	 
	 
	 	 	 	 	 	 	 	 
	SECTION 6.	 	REMEDIAL PROVISIONS	 	 	15	 
	 
	 	6.1	 	Certain Matters Relating to Receivables	 	 	15	 
	 
	 	6.2	 	Communications with Obligors; Grantors Remain Liable	 	 	15	 
	 
	 	6.3	 	Pledged Stock	 	 	16	 
	 
	 	6.4	 	Proceeds to be Turned Over To Collateral Agent	 	 	16	 
	 
	 	6.5	 	Code and Other Remedies	 	 	17	 
	 
	 	6.6	 	Registration Rights	 	 	17	 




i








 





	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 
	 	6.7	 	Deficiency	 	 	18	 
	 
	 	 	 	 	 	 	 	 
	SECTION 7.	 	THE COLLATERAL ACCOUNT; DISTRIBUTIONS	 	 	18	 
	 
	 	7.1	 	The Collateral Account	 	 	18	 
	 
	 	7.2	 	Control of Collateral Account	 	 	18	 
	 
	 	7.3	 	Investment of Funds Deposited in Collateral Account	 	 	18	 
	 
	 	7.4	 	Application of Moneys	 	 	19	 
	 
	 	7.5	 	Collateral Agent’s Calculations	 	 	20	 
	 
	 	 	 	 	 	 	 	 
	SECTION 8.	 	THE COLLATERAL AGENT	 	 	20	 
	 
	 	8.1	 	Collateral Agent’s Appointment as Attorney-in-Fact, etc.	 	 	20	 
	 
	 	8.2	 	Appointment of Collateral Agent as Agent for the Secured Parties	 	 	21	 
	 
	 	8.3	 	Duty of Collateral Agent	 	 	22	 
	 
	 	8.4	 	Execution of Financing Statements	 	 	22	 
	 
	 	8.5	 	General Provisions	 	 	22	 
	 
	 	8.6	 	Authority of Collateral Agent	 	 	22	 
	 
	 	 	 	 	 	 	 	 
	SECTION 9.	 	MISCELLANEOUS	 	 	22	 
	 
	 	9.1	 	Amendments in Writing	 	 	22	 
	 
	 	9.2	 	Notices	 	 	22	 
	 
	 	9.3	 	No Waiver by Course of Conduct; Cumulative Remedies	 	 	23	 
	 
	 	9.4	 	Enforcement Expenses; Indemnification	 	 	23	 
	 
	 	9.5	 	Successors and Assigns	 	 	23	 
	 
	 	9.6	 	Setoff	 	 	23	 
	 
	 	9.7	 	Counterparts	 	 	24	 
	 
	 	9.8	 	Severability	 	 	24	 
	 
	 	9.9	 	Section Headings	 	 	24	 
	 
	 	9.10	 	Integration	 	 	24	 
	 
	 	9.11	 	GOVERNING LAW	 	 	24	 
	 
	 	9.12	 	Submission To Jurisdiction; Waivers	 	 	24	 
	 
	 	9.13	 	Acknowledgements	 	 	25	 
	 
	 	9.14	 	Additional Grantors	 	 	25	 
	 
	 	9.15	 	Releases	 	 	25	 
	 
	 	9.16	 	WAIVER OF JURY TRIAL	 	 	26	 






SCHEDULES




	 	 	 
	 
	 	 
	Schedule 1

	 	Notice Addresses
	Schedule 2

	 	Investment Property
	Schedule 3

	 	Perfection Matters
	Schedule 4

	 	Jurisdictions of Organization, Identification Numbers and Location of Chief Executive Offices
	Schedule 5

	 	Intellectual Property
	Schedule 6

	 	Deposit and Securities Accounts
	Schedule 7

	 	Additional Specified Swap Agreements






ANNEXES




	 	 	 
	 
	 	 
	Annex I

	 	Form of Assumption Agreement




ii








 



 


GUARANTEE AND COLLATERAL AGREEMENT




          GUARANTEE AND COLLATERAL AGREEMENT, dated as of June 6, 2008, among each of the signatories
hereto (together with any other entity that may become a party hereto as provided herein, the
“Grantors”), and JPMorgan Chase Bank, N.A., as Collateral Agent (in such capacity, together
with any successor collateral agent, the “Collateral Agent”) for the banks and other
financial institutions or entities (the “Lenders”) from time to time parties to the Credit
Agreement, dated as of June 6, 2008 (as amended, restated, amended and restated, supplemented or
otherwise modified from time to time, the “Credit Agreement”), among Dex Media, Inc., Dex
Media West, Inc. (“Holdings”), Dex Media West LLC (the “Borrower”), the Lenders and
JPMorgan Chase Bank, N.A., as administrative agent (the “Administrative Agent”).




WITNESSETH:




          WHEREAS, pursuant to the Credit Agreement, the Lenders have severally agreed to make
extensions of credit to the Borrower upon the terms and subject to the conditions set forth
therein;




          WHEREAS, the Borrower is a member of an affiliated group of companies that includes each other
Grantor;




          WHEREAS, the proceeds of the extensions of credit under the Credit Agreement will be used in
part to enable the Borrower to make valuable transfers to one or more of the other Grantors in
connection with the operation of their respective businesses;




          WHEREAS, the Borrower and the other Grantors are engaged in related businesses, and each
Grantor will derive substantial direct and indirect benefit from the making of the extensions of
credit under the Credit Agreement;




          WHEREAS, it is a condition precedent to the obligation of the Lenders to make their respective
extensions of credit to the Borrower under the Credit Agreement that the Grantors shall have
executed and delivered this Agreement to the Collateral Agent for the benefit of the Secured
Parties (as defined below); and




          NOW, THEREFORE, in consideration of the premises and to induce the Secured Parties to enter
into the Credit Agreement and to induce the Lenders to make their respective extensions of credit
to the Borrower thereunder and the other Secured Parties to enter into agreements with the Borrower
and its Subsidiaries, each Grantor hereby agrees with the Collateral Agent, for the benefit of the
Secured Parties, as follows:




SECTION 1. DEFINED TERMS




     1.1 Definitions. (a) Unless otherwise defined herein, terms defined in the Credit
Agreement and used herein shall have the meanings given to them in the Credit Agreement, and the
following terms are used herein as defined in the New York UCC: Accounts, Certificated Security,
Chattel Paper, Commercial Tort Claims, Documents, Equipment, Farm Products, General Intangibles,
Instruments, Inventory, Letter-of-Credit Rights, Securities Account and Supporting Obligations.



     (b) The following terms shall have the following meanings:









 



2


          “Agreement”: this Guarantee and Collateral Agreement, as the same may be amended,
supplemented or otherwise modified from time to time.




          “Borrower Obligations”: the collective reference to the unpaid principal of and
interest on the Loans and Reimbursement Obligations  and all other obligations and
liabilities of the Borrower (including, without limitation, interest accruing at the then
applicable rate provided in the Credit Agreement after the maturity of the Loans and Reimbursement
Obligations and interest accruing at the then applicable rate provided in the Credit Agreement
after the filing of any petition in bankruptcy, or the commencement of any insolvency,
reorganization or like proceeding, relating to the Borrower, whether or not a claim for post-filing
or post-petition interest is allowed in such proceeding) to any Secured Party, whether direct or
indirect, absolute or contingent, due or to become due, or now existing or hereafter incurred,
which may arise under, out of, or in connection with, the Credit Agreement, this Agreement, the
other Loan Documents, any Letter of Credit, any Specified Swap Agreement or any other document
made, delivered or given in connection with any of the foregoing, in each case whether on account
of principal, interest, reimbursement obligations, fees, indemnities, costs, expenses or otherwise
(including, without limitation, all fees and disbursements of counsel to the Secured Parties that
are required to be paid by the Borrower pursuant to the terms of any of the foregoing agreements).




          “Collateral”: as defined in Section 3.




          “Collateral Account”: the collateral account established by the Collateral Agent as
provided in Section 7.1.




          “Collateral Agent Fees”: all fees, costs and expenses of the Collateral Agent of the
types described in Sections 8.1(c) and 9.4.




          “Copyrights”: (i) all copyrights arising under the laws of the United States, any
other country or any political subdivision thereof, whether registered or unregistered and whether
published or unpublished (including, without limitation, those listed in Schedule 5), all
registrations and recordings thereof, and all applications in connection therewith, including,
without limitation, all registrations, recordings and applications in the United States Copyright
Office, and (ii) the right to obtain all renewals thereof.




          “Copyright Licenses”: any written agreement naming any Grantor as licensor or
licensee (including, without limitation, those listed in Schedule 5), granting any right
under any Copyright, including, without limitation, the grant of rights to manufacture, distribute,
exploit and sell materials derived from any Copyright.




          “Deposit Account”: as defined in the Uniform Commercial Code of any applicable
jurisdiction and, in any event, including, without limitation, any demand, time, savings, passbook
or like account maintained with a depositary institution.




          “Distribution Date”: each date fixed by the Collateral Agent in its sole discretion
for a distribution to the relevant Secured Parties of funds held in the Collateral Account.




          “East Guarantee and Collateral Agreement”: the Guarantee and Collateral Agreement,
dated as of October 24, 2007, among Dex Media East, Inc., Dex Media East LLC, Dex Media East
Finance Co. and JPMorgan Chase Bank, N.A., as collateral agent.




          “Foreign Subsidiary”: any Subsidiary organized under the laws of any jurisdiction
outside the United States of America.










 



3




          “Foreign Subsidiary Voting Stock”: the voting Equity Interests of any Foreign
Subsidiary.




          “Grantors”: as defined in the preamble hereto.




          “Guarantor Obligations”: with respect to any Guarantor, all obligations and
liabilities of such Guarantor which may arise under or in connection with this Agreement
(including, without limitation, Section 2) or any other Loan Document or Specified Swap Agreement
to which such Guarantor is a party, in each case whether on account of guarantee obligations,
reimbursement obligations, fees, indemnities, costs, expenses or otherwise (including, without
limitation, all fees and disbursements of counsel to the Secured Parties that are required to be
paid by such Guarantor pursuant to the terms of this Agreement or any other Loan Document or
Specified Swap Agreement).




          “Guarantors”: Holdings and the Subsidiary Loan Parties.




          “Intellectual Property”: the collective reference to all rights, priorities and
privileges relating to intellectual property, whether arising under United States, multinational or
foreign laws or otherwise, including, without limitation, the Copyrights, the Copyright Licenses,
the Patents, the Patent Licenses, the Trademarks and the Trademark Licenses, and all rights to sue
at law or in equity for any infringement or other impairment thereof, including the right to
receive all proceeds and damages therefrom.




          “Intercompany Note”: any promissory note evidencing loans made by any Grantor to
Holdings or any of its Subsidiaries.




          “Investment Property”: the collective reference to (i) all “investment property,” as
such term is defined in Section 9-102(a)(49) of the New York UCC (other than any Foreign Subsidiary
Voting Stock excluded from the definition of “Pledged Stock”) and (ii) whether or not constituting
“investment property” as so defined, all Pledged Notes and all Pledged Stock.




          “Issuers”: the collective reference to each issuer of any Investment Property.




          “New York UCC”: the Uniform Commercial Code as from time to time in effect in the
State of New York.




          “Obligations”: (i) in the case of the Borrower, the Borrower Obligations and (ii) in
the case of each Guarantor, its Guarantor Obligations.




          “Patents”: (i) all letters patent of the United States, any other country or any
political subdivision thereof, all reissues and extensions thereof and all goodwill associated
therewith, including, without limitation, any of the foregoing referred to in Schedule 5,
(ii) all applications for letters patent of the United States or any other country and all
divisions, continuations and continuations-in-part thereof, including, without limitation, any of
the foregoing referred to in Schedule 5 and (iii) all rights to obtain any reissues or
extensions of the foregoing.




          “Patent License”: all agreements, whether written or oral, providing for the grant by
or to any Grantor of any right to manufacture, use or sell any invention covered in whole or in
part by a Patent, including, without limitation, any of the foregoing referred to in Schedule
5.




          “Pledged Notes”: all promissory notes listed on Schedule 2, all Intercompany
Notes at any time issued to any Grantor and all other promissory notes issued to or held by any
Grantor (other than










 



4



promissory notes issued in connection with extensions of trade credit by any Grantor in the
ordinary course of business).




          “Pledged Stock”: the shares of Equity Interests listed on Schedule 2,
together with any other shares, stock certificates, options, interests or rights of any nature
whatsoever in respect of the Equity Interests of any Person that may be issued or granted to, or
held by, any Grantor while this Agreement is in effect; provided that in no event shall
more than 65% of the total outstanding Foreign Subsidiary Voting Stock of any Foreign Subsidiary be
required to be pledged hereunder.




          “Proceeds”: all “proceeds,” as such term is defined in Section 9-102(a)(64) of the
New York UCC and, in any event, shall include, without limitation, all dividends or other income
from the Investment Property, collections thereon or distributions or payments with respect
thereto.




          “Receivable”: any right to payment for goods sold or leased or for services rendered,
whether or not such right is evidenced by an Instrument or Chattel Paper and whether or not it has
been earned by performance (including, without limitation, any Account).




          “Reimbursement Obligation”: the obligation of the Borrower to reimburse the Issuing
Bank pursuant to Section 2.05(e) of the Credit Agreement.




          “Secured Parties”: collectively, (a) the Administrative Agent, (b) the Collateral
Agent, (c) the Lenders and any Affiliate of any Lender to which Borrower Obligations or Guarantor
Obligations, as applicable, are owed, (d) the Issuing Bank, (e) the beneficiaries of each
indemnification obligation undertaken by any Loan Party under any Loan Document or the holder of
any other Obligations, (f) any Secured Swap Provider to which Borrower Obligations or Guarantor
Obligations, as applicable, are owed and (g) the successors and assigns of each of the foregoing.




          “Secured Swap Provider”: a Person with whom the Borrower has entered into a Specified
Swap Agreement arranged by any Lender or any Affiliate of a Lender and any assignee thereof which
is a Lender or Affiliate of a Lender.




          “Securities Act”: the Securities Act of 1933, as amended.




          “Specified Swap Agreement”: any Swap Agreement entered into by the Borrower or any of
its Subsidiaries provided or arranged by any Person who was a Lender or an Affiliate of a Lender at
the time such Swap Agreement was entered into; provided that, in addition, each Swap
Agreements listed on Schedule 7 shall be deemed to be a Specified Swap Agreement and for
purposes of this Agreement shall be deemed to be provided and arranged on the date hereof by a
Person who is a Lender or an Affiliate of a Lender.




          “Trademarks”: (i) all trademarks, trade names, corporate names, company names,
business names, fictitious business names, trade styles, service marks, logos and other source or
business identifiers, and all goodwill associated therewith, now existing or hereafter adopted or
acquired, all registrations and recordings thereof, and all applications in connection therewith,
whether in the United States Patent and Trademark Office or in any similar office or agency of the
United States, any State thereof or any other country or any political subdivision thereof, or
otherwise, and all common-law rights related thereto, including, without limitation, any of the
foregoing referred to in Schedule 5, and (ii) the right to obtain all renewals thereof.










 



5




          “Trademark License”: any agreement, whether written or oral, providing for the grant
by or to any Grantor of any right to use any Trademark, including, without limitation, any of the
foregoing referred to in Schedule 5.




     1.2 Other Definitional Provisions. (a) The words “hereof,” “herein,” “hereto” and
“hereunder” and words of similar import when used in this Agreement shall refer to this Agreement
as a whole and not to any particular provision of this Agreement, and Section and Schedule
references are to this Agreement unless otherwise specified.



     (b) The meanings given to terms defined herein shall be equally applicable to both the
singular and plural forms of such terms.



     (c) Where the context requires, terms relating to the Collateral or any part thereof, when
used in relation to a Grantor, shall refer to such Grantor’s Collateral or the relevant part
thereof.



SECTION 2. GUARANTEE




     2.1 Guarantee. (a) Each of the Guarantors hereby, jointly and severally, unconditionally
and irrevocably, guarantees as a primary obligor and not merely as surety to the Collateral Agent,
for the benefit of the Secured Parties and their respective successors, indorsees, transferees and
assigns, the prompt and complete payment and performance by the Borrower when due (whether at the
stated maturity, by acceleration or otherwise) of the Borrower Obligations.



     (b) Anything herein or in any other Loan Document to the contrary notwithstanding, the maximum
liability of each Guarantor hereunder and under the other Loan Documents shall in no event exceed
the amount which can be guaranteed by such Guarantor under applicable federal and state laws
relating to the insolvency of debtors (after giving effect to the right of contribution established
in Section 2.2).



     (c) Each Guarantor agrees that the Borrower Obligations may at any time and from time to time
exceed the amount of the liability of such Guarantor hereunder without impairing the guarantee
contained in this Section 2 or affecting the rights and remedies of the Collateral Agent or any
Secured Party hereunder.



     (d) Subject to Section 9.15 hereof, the guarantee contained in this Section 2 shall remain in
full force and effect until all the Borrower Obligations and the obligations of each Guarantor
under the guarantee contained in this Section 2 shall have been satisfied by payment in full, no
Letter of Credit shall be outstanding and the Commitments shall be terminated, notwithstanding that
from time to time during the term of the Credit Agreement the Borrower may be free from any
Borrower Obligations.



     (e) No payment made by the Borrower, any of the Guarantors, any other guarantor or any other
Person or received or collected by the Collateral Agent or any Secured Party from the Borrower, any
of the Guarantors, any other guarantor or any other Person by virtue of any action or proceeding or
any set-off or appropriation or application at any time or from time to time in reduction of or in
payment of the Borrower Obligations shall be deemed to modify, reduce, release or otherwise affect
the liability of any Guarantor hereunder which shall, notwithstanding any such payment (other than
any payment made by such Guarantor in respect of the Borrower Obligations or any payment received
or collected from such
Guarantor in respect of the Borrower Obligations), remain liable for the Borrower Obligations
up to the maximum liability of such Guarantor hereunder until the Borrower Obligations are paid in
full, no Letter of Credit shall be outstanding and the Commitments are terminated.









 



6


     2.2 Right of Contribution. Each Subsidiary Loan Party hereby agrees that to the extent
that a Subsidiary Loan Party shall have paid more than its proportionate share of any payment made
hereunder, such Subsidiary Loan Party shall be entitled to seek and receive contribution from and
against any other Subsidiary Loan Party hereunder which has not paid its proportionate share of
such payment. Each Subsidiary Loan Party’s right of contribution shall be subject to the terms and
conditions of Section 2.3. The provisions of this Section 2.2 shall in no respect limit the
obligations and liabilities of any Subsidiary Loan Party to the Collateral Agent and the Secured
Parties, and each Subsidiary Loan Party shall remain liable to the Collateral Agent and the Secured
Parties for the full amount guaranteed by such Subsidiary Loan Party hereunder.



     2.3 No Subrogation. Notwithstanding any payment made by any Guarantor hereunder or any
set-off or application of funds of any Guarantor by the Collateral Agent or any Secured Party, no
Guarantor shall be entitled to be subrogated to any of the rights of the Collateral Agent or any
Secured Party against the Borrower or any other Guarantor or any collateral security or guarantee
or right of offset held by the Collateral Agent or any Secured Party for the payment of the
Borrower Obligations, nor shall any Guarantor seek or be entitled to seek any contribution or
reimbursement from the Borrower or any other Guarantor in respect of payments made by such
Guarantor hereunder, until all amounts owing to the Collateral Agent and the Secured Parties by the
Borrower on account of the Borrower Obligations are paid in full, no Letter of Credit shall be
outstanding and the Commitments are terminated. If any amount shall be paid to any Guarantor on
account of such subrogation rights at any time when all of the Borrower Obligations shall not have
been paid in full, such amount shall be held by such Guarantor in trust for the Collateral Agent
and the Secured Parties, segregated from other funds of such Guarantor, and shall, forthwith upon
receipt by such Guarantor, be turned over to the Collateral Agent in the exact form received by
such Guarantor (duly indorsed by such Guarantor to the Collateral Agent, if required), to be
applied against the Borrower Obligations, whether matured or unmatured, in such order as the
Collateral Agent may determine.



     2.4 Amendments, etc. with respect to the Borrower Obligations. Each Guarantor shall
remain obligated hereunder notwithstanding that, without any reservation of rights against any
Guarantor and without notice to or further assent by any Guarantor, any demand for payment of any
of the Borrower Obligations made by the Collateral Agent or any Secured Party may be rescinded by
the Collateral Agent or such Secured Party and any of the Borrower Obligations continued, and the
Borrower Obligations, or the liability of any other Person upon or for any part thereof, or any
collateral security or guarantee therefor or right of offset with respect thereto, may, from time
to time, in whole or in part, be renewed, extended, amended, modified, accelerated, compromised,
waived, surrendered or released by the Collateral Agent or any Secured Party, and the Credit
Agreement and the other Loan Documents and any other documents executed and delivered in connection
therewith may be amended, modified, supplemented or terminated, in whole or in part, as the
Collateral Agent (or the Administrative Agent, the Required Lenders or all Lenders, as the case may
be) may deem advisable from time to time, and any collateral security, guarantee or right of offset
at any time held by the Collateral Agent or any Secured Party for the payment of the Borrower
Obligations may be sold, exchanged, waived, surrendered or released. Neither the Collateral Agent
nor any other Secured
Party shall have any obligation to protect, secure, perfect or insure any Lien at any time
held by it as security for the Borrower Obligations or for the guarantee contained in this Section
2 or any property subject thereto.



     2.5 Guarantee Absolute and Unconditional. Each Guarantor waives any and all notice of the
creation, renewal, extension or accrual of any of the Borrower Obligations and notice of or proof
of reliance by the Collateral Agent or any Secured Party upon the guarantee contained in this
Section 2 or acceptance of the guarantee contained in this Section 2; the Borrower Obligations, and
any of them, shall conclusively be deemed to have been created, contracted or incurred, or renewed,
extended, amended or waived, in reliance upon the guarantee contained in this Section 2; and all
dealings between the Borrower









 



7



and any of the Guarantors, on the one hand, and the Collateral Agent
and the Secured Parties, on the other hand, likewise shall be conclusively presumed to have been
had or consummated in reliance upon the guarantee contained in this Section 2. Each Guarantor
waives diligence, presentment, protest, demand for payment and notice of default or nonpayment to
or upon the Borrower or any of the Guarantors with respect to the Borrower Obligations. Each
Guarantor understands and agrees that the guarantee contained in this Section 2 shall be construed
as a continuing, absolute and unconditional guarantee of payment without regard to (a) the validity
or enforceability of the Credit Agreement or any other Loan Document, any of the Borrower
Obligations or any other collateral security therefor or guarantee or right of offset with respect
thereto at any time or from time to time held by the Collateral Agent or any Secured Party, (b) any
defense, set-off or counterclaim (other than a defense of payment or performance) which may at any
time be available to or be asserted by the Borrower or any other Person against the Collateral
Agent or any Secured Party, or (c) any other circumstance whatsoever (with or without notice to or
knowledge of the Borrower or such Guarantor) which constitutes, or might be construed to
constitute, an equitable or legal discharge of the Borrower for the Borrower Obligations, or of
such Guarantor under the guarantee contained in this Section 2, in bankruptcy or in any other
instance. When making any demand hereunder or otherwise pursuing its rights and remedies hereunder
against any Guarantor, the Collateral Agent and any Secured Party may, but shall be under no
obligation to, make a similar demand on or otherwise pursue such rights and remedies as it may have
against the Borrower, any other Guarantor or any other Person or against any collateral security or
guarantee for the Obligations or any right of offset with respect thereto, and any failure by the
Collateral Agent or any Secured Party to make any such demand, to pursue such other rights or
remedies or to collect any payments from the Borrower, any other Guarantor or any other Person or
to realize upon any such collateral security or guarantee or to exercise any such right of offset,
or any release of the Borrower, any other Guarantor or any other Person or any such collateral
security, guarantee or right of offset, shall not relieve any Guarantor of any obligation or
liability hereunder, and shall not impair or affect the rights and remedies, whether express,
implied or available as a matter of law, of the Collateral Agent or any Secured Party against any
Guarantor. For the purposes hereof “demand” shall include the commencement and continuance of any
legal proceedings.



     2.6 Reinstatement. The guarantee contained in this Section 2 shall continue to be
effective, or be reinstated, as the case may be, if at any time payment, or any part thereof, of
any of the Borrower Obligations is rescinded or must otherwise be restored or returned by any
Secured Party upon the insolvency, bankruptcy, dissolution, liquidation or reorganization of the
Borrower or any Guarantor, or upon or as a result of the appointment of a receiver, intervenor or
conservator of, or trustee or similar officer for, the Borrower or any Guarantor or any substantial
part of its property, or otherwise, all as though such payments had not been made.



     2.7 Payments. Each Guarantor hereby guarantees that payments hereunder will be paid to the Collateral
Agent for the sole benefit of the Secured Parties without set-off or counterclaim in Dollars at the
office of the Collateral Agent located at 270 Park Avenue, New York, New York 10017.



SECTION 3. GRANT OF SECURITY INTEREST




     3.1 Grant of Security Interest. Subject to Section 3.2, each Grantor hereby assigns and
transfers to the Collateral Agent, and hereby grants to the Collateral Agent, for the benefit of
the Secured Parties, a security interest in, all of the following property now owned or at any time
hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future
may acquire any right, title or interest (collectively, the “Collateral”), as collateral
security for the prompt and complete payment and performance when due (whether at the stated
maturity, by acceleration or otherwise) of such Grantor’s Obligations:



     (a) all Accounts;









 



8


     (b) all Chattel Paper;



     (c) all Contracts;



     (d) all Deposit Accounts;



     (e) all Documents;



     (f) all Equipment;



     (g) all General Intangibles;



     (h) all Instruments;



     (i) all Intellectual Property;



     (j) all Inventory;



     (k) all Investment Property;



     (l) all Letter-of-Credit Rights;



     (m) all other personal property not otherwise described above;



     (n) all books and records pertaining to the Collateral; and



     (o) to the extent not otherwise included, all Proceeds, Supporting Obligations and products of
any and all of the foregoing and all collateral security and guarantees given by any Person with
respect to any of the foregoing.



     3.2 Excluded Property. Notwithstanding any of the other provisions set forth in this
Section 3, this Agreement shall not constitute a grant of a security interest in, and the
Collateral shall not include, any property to the extent
that such grant of a security interest (i) is prohibited by any Requirements of Law of a
Governmental Authority or requires a consent not obtained of any Governmental Authority pursuant to
such Requirement of Law, (ii) is prohibited by, or constitutes a breach or default under or results
in the termination of or requires any consent not obtained under, any contract, license, agreement,
instrument or other document evidencing or giving rise to such property, or (iii) in the case of
any Investment Property, Pledged Stock or Pledged Note, any applicable shareholder or similar
agreement, except in each case to the extent that such Requirement of Law or the term in such
contract, license, agreement, instrument or other document or shareholder or similar agreement
providing for such prohibition, breach, default or termination or requiring such consent is
ineffective under applicable law.



SECTION 4. REPRESENTATIONS AND WARRANTIES




          To induce the Administrative Agent and the Lenders to enter into the Credit Agreement and to
induce the Lenders to make their respective extensions of credit to the Borrower under the Credit
Agreement and the Secured Parties to enter into agreements with the Borrower and its Subsidiaries,
each Grantor hereby represents and warrants to the Collateral Agent and each Secured Party that:



     4.1 Title; No Other Liens. Except for the security interests granted to the Collateral
Agent for the benefit of the Secured Parties pursuant to this Agreement and the other Liens
permitted to exist on









 



9



the Collateral by the Credit Agreement, such Grantor owns each item of the
Collateral free and clear of any and all Liens or claims of others. No financing statement or
other public notice with respect to all or any part of the Collateral is on file or of record in
any public office, except such as have been filed in favor of the Collateral Agent, for the benefit
of the Secured Parties pursuant to this Agreement or as are permitted by the Credit Agreement. For
the avoidance of doubt, it is understood and agreed that any Grantor may, as part of its business,
grant licenses to third parties to use Intellectual Property owned or developed by a Grantor. For
purposes of this Agreement and the other Loan Documents, such licensing activity shall not
constitute a “Lien” on such Intellectual Property. Each Secured Party understands that any such
licenses may be exclusive to the applicable licensees, and such exclusivity provisions may limit
the ability of the Collateral Agent to utilize, sell, lease or transfer the related Intellectual
Property or otherwise realize value from such Intellectual Property pursuant hereto.



     4.2 Perfected First Priority Lien. The security interests granted pursuant to this
Agreement (i) upon completion of the filings and other actions specified on Schedule 3
(which, in the case of all filings and other documents referred to on such Schedule, have been
delivered to the Collateral Agent in completed and duly executed form) will constitute valid
perfected security interests in all of the Collateral to which Article 9 of the New York UCC is
applicable in favor of the Collateral Agent, for the benefit of the Secured Parties, as collateral
security for the Obligations, enforceable in accordance with the terms hereof against all creditors
of such Grantor and any Persons purporting to purchase any such Collateral from such Grantor and
(ii) are prior to all other Liens on the Collateral to which Article 9 of the New York UCC is
applicable in existence on the date hereof except for Liens permitted by the Credit Agreement to
have priority over the security interests granted pursuant to this Agreement.



     4.3 Jurisdiction of Organization; Chief Executive Office. On the date hereof, such
Grantor’s jurisdiction of organization, identification number from the jurisdiction of organization
(if any), and the location of such Grantor’s chief executive office or sole place of business or
principal residence, as the case may be, are specified on Schedule 4. Such
Grantor has furnished to the Collateral Agent a certified charter, certificate of
incorporation or other organizational document and a long-form good standing certificate as of a
date which is recent to the date hereof.



     4.4 Farm Products. None of the Collateral constitutes, or is the Proceeds of, Farm
Products.



     4.5 Investment Property. (a) The shares of Pledged Stock pledged by such Grantor
hereunder constitute all the issued and outstanding shares of all classes of the Equity Interests
of each Issuer owned by such Grantor or, in the case of Foreign Subsidiary Voting Stock, if less,
65% of the outstanding Foreign Subsidiary Voting Stock of each relevant Issuer.



     (b) All the shares of the Pledged Stock have been duly and validly issued and are fully paid
and nonassessable.



     (c) Each of the Pledged Notes constituting Collateral constitutes the legal, valid and binding
obligation of the obligor with respect thereto, enforceable in accordance with its terms, subject
to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and
other similar laws relating to or affecting creditors’ rights generally, general equitable
principles (whether considered in a proceeding in equity or at law) and an implied covenant of good
faith and fair dealing.



     (d) Such Grantor is the record and beneficial owner of, and has good and marketable title to,
the Investment Property pledged by it hereunder, free of any and all Liens or options in favor of,
or claims of, any other Person, except the security interest created by this Agreement.









 



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     4.6 Receivables. With respect to the Receivables constituting Collateral of any Grantor
only:



     (a) No amount payable to such Grantor under or in connection with any Receivable is evidenced
by any Instrument or Chattel Paper which has not been delivered to the Collateral Agent.



     (b) None of the obligors on any Receivables is a Governmental Authority.



     (c) The amounts represented by such Grantor to the Secured Parties from time to time as owing
to such Grantor in respect of the Receivables will at such times be accurate.



     4.7 Intellectual Property. With respect to the Intellectual Property constituting
Collateral of any Grantor only:



     (a) Schedule 5 lists or describes all Copyrights, Trademarks, Patents and
applications for the foregoing owned by such Grantor in its own name on the date hereof and all
Copyright Licenses, Patent Licenses and Trademark Licenses.



     (b) On the date hereof, all material Intellectual Property is valid, subsisting, unexpired and
enforceable, has not been abandoned and, to the knowledge of such Grantor, does not infringe the
intellectual property rights of any other Person.



     (c) Except as set forth in Schedule 5 hereto, on the date hereof, none of the
Intellectual Property is the subject of any licensing or franchise agreement pursuant to which such
Grantor is the licensor or franchisor.



     (d) No holding, decision or judgment has been rendered by any Governmental Authority which
would limit, cancel or question the validity of, or such Grantor’s rights in, any Intellectual
Property in any respect that could reasonably be expected to have a Material Adverse Effect.



     (e) No action or proceeding is pending, or, to the knowledge of such Grantor, threatened, on
the date hereof (i) seeking to limit, cancel or question the validity of any Intellectual Property
or such Grantor’s ownership interest therein, or (ii) which, if adversely determined, would have a
material adverse effect on the value of any Intellectual Property.



     4.8 Deposit Accounts, Securities Accounts . Schedule 6 hereto sets forth each
Deposit Account or Securities Account constituting Collateral in which any Grantor has any interest
on the date hereof.



SECTION 5. COVENANTS




          Each Grantor covenants and agrees with the Collateral Agent for the benefit of the Secured
Parties that, from and after the date of this Agreement until the Obligations (other than
contingent indemnity obligations not then due and payable) shall have been paid in full, no Letter
of Credit shall be outstanding and the Commitments shall have terminated:



     5.1 Delivery of Instruments, Certificated Securities and Chattel Paper. If any amount
payable under or in connection with any of the Collateral shall be or become evidenced by any
Instrument, Certificated Security or Chattel Paper constituting Collateral, such Instrument,
Certificated Security or Chattel Paper shall be immediately delivered to the Collateral Agent, duly
indorsed in a manner satisfactory to the Collateral Agent, to be held as Collateral pursuant to
this Agreement.









 



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     5.2 Maintenance of Insurance. (a) Such Grantor will maintain, with financially sound and
reputable companies, insurance policies (i) insuring the Inventory and Equipment against loss by
fire, explosion, theft and such other casualties as may be reasonably satisfactory to the
Collateral Agent and (ii) to the extent requested by the Collateral Agent, insuring such Grantor
against liability for personal injury and property damage relating to such Inventory and Equipment,
such policies to be in such form and amounts and having such coverage as may be reasonably
satisfactory to the Collateral Agent.



     (b) All such insurance shall (i) provide that no cancellation, material reduction in amount or
material change in coverage thereof shall be effective unless the insurer gives at least 30 days
notice to the Collateral Agent, (ii) name the Collateral Agent as insured party or loss payee, as
applicable, and (iii) be reasonably satisfactory in all other respects to the Collateral Agent.



     (c) The Borrower shall deliver to the Collateral Agent a report of a reputable insurance
broker with respect to such insurance substantially concurrently with each delivery of the
Borrower’s audited annual financial statements and such supplemental reports with respect thereto
as the Collateral Agent may from time to time reasonably request.



     5.3 Payment of Obligations. Such Grantor will pay and discharge or otherwise satisfy
at or before maturity or before they become delinquent, as the case may be, all taxes, assessments
and governmental charges or levies imposed upon the Collateral or in respect of income or profits
therefrom, as well as all claims of any kind (including, without limitation, claims for labor,
materials and supplies) against or with respect to the Collateral, except that no such charge need
be paid if the amount or validity thereof is currently being contested in good faith by appropriate
proceedings, reserves in conformity with GAAP with respect thereto have been provided on the books
of such Grantor and such proceedings could not reasonably be expected to result in the sale,
forfeiture or loss of any material portion of the Collateral or any interest therein.



     5.4 Maintenance of Perfected Security Interest; Further Documentation. (a) Such Grantor
shall maintain the security interest created by this Agreement as a perfected security interest
having at least the priority described in Section 4.2 and shall defend such security interest
against the claims and demands of all Persons whomsoever, subject to the rights of such Grantor
under the Loan Documents to dispose of the Collateral.



     (b) Such Grantor will furnish to the Collateral Agent from time to time statements and
schedules further identifying and describing the assets and property of such Grantor and such other
reports in connection therewith as the Collateral Agent may reasonably request, all in reasonable
detail.



     (c) At any time and from time to time, upon the written request of the Collateral Agent, and
at the sole expense of such Grantor, such Grantor will promptly and duly execute and deliver, and
have recorded, such further instruments and documents and take such further actions as the
Collateral Agent may reasonably request for the purpose of obtaining or preserving the full
benefits of this Agreement and of the rights and powers herein granted, including, without
limitation, (i) filing any financing or continuation statements under the Uniform Commercial Code
(or other similar laws) in effect in any jurisdiction with respect to the security interests
created hereby and (ii) in the case of Investment Property, Deposit Accounts and Letter-of-Credit
Rights constituting Collateral and any other relevant Collateral, taking any actions necessary to
enable the Collateral Agent to obtain “control” (within the meaning of the applicable Uniform
Commercial Code) with respect thereto. Notwithstanding anything in this Agreement to the contrary
(other than with respect to (i) Investment Property and (ii) Deposit Accounts and Securities
Accounts), no Grantor shall be required to take any actions to perfect or maintain the Collateral
Agent’s security interest with respect to any personal property Collateral which (i) cannot be
perfected or maintained by filing a financing statement under the Uniform Commercial Code and (ii)









 



12



has a fair market value which, together with the value of all other personal property Collateral of
all Grantors with respect to which a security interest is not perfected or maintained in reliance
on this sentence, does not exceed $2,500,000.



     (d) Subject to Section 5.11, such Grantor will not establish any additional Deposit Accounts
or Securities Accounts constituting Collateral without executing and delivering, concurrently with
the establishment of such account, a control agreement in form and substance satisfactory to the
Collateral Agent and the related depositary bank or securities intermediary, as the case may be, in
order to perfect the security interests of the Collateral Agent in such account under the Uniform
Commercial Code.



     5.5 Changes in Locations, Name, etc. Such Grantor will not, except upon 15 days’ prior
written notice to the Collateral Agent and delivery to the Collateral Agent and the Administrative
Agent of all additional financing statements
and other documents reasonably requested by the Collateral Agent or the Administrative Agent
to maintain the validity, perfection and priority of the security interests provided for herein:



     (i) change its jurisdiction of organization from that referred to in Section 4.3; or



     (ii) change its name.



     5.6 Notices. Such Grantor will advise the Collateral Agent and the Administrative Agent
promptly, in reasonable detail (which notice shall specify that it is being delivered pursuant to
this Section), of:



     (a) any Lien (other than security interests created hereby or Liens permitted under the Credit
Agreement) on any of the Collateral which would adversely affect the ability of the Collateral
Agent to exercise any of its remedies hereunder; and



     (b) the occurrence of any other event which could reasonably be expected to have a material
adverse effect on the aggregate value of the Collateral or on the security interests created
hereby.



     5.7 Investment Property. (a) If such Grantor shall become entitled to receive or shall
receive any certificate (including, without limitation, any certificate representing a dividend or
a distribution in connection with any reclassification, increase or reduction of capital or any
certificate issued in connection with any reorganization), option or rights in respect of the
Equity Interests of any Issuer, whether in addition to, in substitution of, as a conversion of, or
in exchange for, any shares of the Pledged Stock, or otherwise in respect thereof, such Grantor
shall accept the same as the agent of the Collateral Agent for the benefit of the Secured Parties,
hold the same in trust for the Collateral Agent for the benefit of the Secured Parties and deliver
the same forthwith to the Collateral Agent in the exact form received, duly indorsed by such
Grantor to the Collateral Agent, if required, together with an undated stock power covering such
certificate duly executed in blank by such Grantor and with, if the Collateral Agent so requests,
signature guaranteed, to be held by the Collateral Agent, subject to the terms hereof, as
additional collateral security for the Secured Obligations. Any sums paid upon or in respect of
the Investment Property upon the liquidation or dissolution of any Issuer shall be paid over to the
Collateral Agent to be held by it hereunder as additional collateral security for the Secured
Obligations, and in case any distribution of capital shall be made on or in respect of the
Investment Property or any property shall be distributed upon or with respect to the Investment
Property pursuant to the recapitalization or reclassification of the capital of any Issuer or
pursuant to the reorganization thereof, the property so distributed shall, unless otherwise subject
to a perfected security interest in favor of the Collateral Agent, be delivered to the Collateral
Agent to be held by it hereunder as additional collateral security for the Secured Obligations. If
any sums of money or property so paid or distributed in respect of the Investment









 



13



Property shall be
received by such Grantor, such Grantor shall, until such money or property is paid or delivered to
the Collateral Agent, hold such money or property in trust for the Collateral Agent for the benefit
of the Secured Parties, segregated from other funds of such Grantor, as additional collateral
security for the Secured Obligations.



     (b) Without the prior written consent of the Collateral Agent, such Grantor will not (i) vote
to enable, or take any other action to permit, any Issuer to issue any Equity Interests of any
nature or to issue any other securities convertible into or granting the right to purchase or
exchange for any Equity Interests of any nature of any Issuer, except to the extent permitted by
the Credit Agreement, (ii) sell, assign, transfer, exchange, or otherwise dispose of, or grant any
option with respect to, the Investment Property or Proceeds thereof (except pursuant to a
transaction expressly permitted by the Credit Agreement), (iii)
create, incur or permit to exist any Lien or option in favor of, or any claim of any Person
with respect to, any of the Investment Property or Proceeds thereof, or any interest therein,
except for the security interests created by this Agreement and the Liens permitted by the Credit
Agreement or (iv) enter into any agreement or undertaking restricting the right or ability of such
Grantor or the Collateral Agent to sell, assign or transfer any of the Investment Property or
Proceeds thereof.



     (c) In the case of each Grantor which is an Issuer, such Issuer agrees that (i) it will be
bound by the terms of this Agreement relating to the Investment Property issued by it and will
comply with such terms insofar as such terms are applicable to it, (ii) it will notify the
Collateral Agent promptly in writing of the occurrence of any of the events described in Section
5.7(a) with respect to the Investment Property issued by it and (iii) the terms of Sections 6.3(c)
and 6.6 shall apply to it, mutatis mutandis, with respect to all actions that may
be required of it pursuant to Section 6.3(c) or 6.6 with respect to the Investment Property issued
by it.



     5.8 Receivables. (a) Other than in the ordinary course of business consistent with
its past practice, such Grantor will not (i) grant any extension of the time of payment of any
Receivable, (ii) compromise or settle any Receivable for less than the full amount thereof, (iii)
release, wholly or partially, any Person liable for the payment of any Receivable, (iv) allow any
credit or discount whatsoever on any Receivable or (v) amend, supplement or modify any Receivable
in any manner that could reasonably be expected to adversely affect the value thereof.



     (b) Such Grantor will deliver to the Collateral Agent a copy of each material demand, notice
or document received by it that questions or calls into doubt the validity or enforceability of
more than 5% of the aggregate amount of the then outstanding Receivables.



     5.9 Intellectual Property. (a) Except to the extent any Grantor reasonably determines
that any Intellectual Property is no longer used or useful in its business, such Grantor (either
itself or through licensees) will (i) continue to use commercially each material Trademark in order
to maintain such Trademark in full force free from any claim of abandonment for non-use, (ii)
maintain as in the past the quality of products and services offered under such Trademark, (iii)
use such Trademark with the appropriate notice of registration and all other notices and legends
required by applicable Requirements of Law, (iv) not adopt or use any mark which is confusingly
similar or a colorable imitation of such Trademark unless the Collateral Agent, for the benefit of
the Secured Parties, shall obtain a perfected security interest in such mark pursuant to this
Agreement and (v) not (and not permit any licensee or sublicensee thereof to) do any act or
knowingly omit to do any act whereby such Trademark may become invalidated or impaired in any way.



     (b) Such Grantor (either itself or through licensees) will not do any act, or omit to do any
act, whereby any material Patent may become forfeited, abandoned or dedicated to the public.









 



14


     (c) Such Grantor (either itself or through licensees) (i) will employ each material Copyright
and (ii) will not (and will not permit any licensee or sublicensee thereof to) do any act or
knowingly omit to do any act whereby any material portion of the Copyrights may become invalidated
or otherwise impaired. Such Grantor will not (either itself or through licensees) do any act
whereby any material portion of the Copyrights may fall into the public domain.



     (d) Such Grantor (either itself or through licensees) will not do any act that knowingly uses
any material Intellectual Property to infringe the intellectual property rights of any other
Person.



     (e) Such Grantor will notify the Collateral Agent immediately if it knows, or has reason to
know, that any application or registration relating to any material Intellectual Property may
become forfeited, abandoned or dedicated to the public, or of any final or non-appealable adverse
determination or development (including, without limitation, any proceeding in the United States
Patent and Trademark Office, the United States Copyright Office or any court or tribunal in any
country) regarding such Grantor’s ownership of, or the validity of, any material Intellectual
Property or such Grantor’s right to register the same or to own and maintain the same.



     (f) Whenever such Grantor, either by itself or through any agent, employee, licensee or
designee, shall file an application for the registration of any Intellectual Property with the
United States Patent and Trademark Office, the United States Copyright Office or any similar office
or agency in any other country or any political subdivision thereof, such Grantor shall report such
filing to the Collateral Agent within five Business Days after the last day of the fiscal quarter
in which such filing occurs. Upon request of the Collateral Agent, such Grantor shall execute and
deliver, and have recorded, any and all agreements, instruments, documents, and papers as the
Collateral Agent may request to evidence the Collateral Agent’s security interest in any Copyright,
Patent or Trademark and the goodwill and general intangibles of such Grantor relating thereto or
represented thereby.



     (g) Such Grantor will take all reasonable and necessary steps, including, without limitation,
in any proceeding before the United States Patent and Trademark Office, the United States Copyright
Office or any similar office or agency in any other country or any political subdivision thereof,
to maintain and pursue each application (and to obtain the relevant registration) and to maintain
each registration of the material Intellectual Property, including, without limitation, filing of
applications for renewal, affidavits of use and affidavits of incontestability.



     (h) In the event that any material Intellectual Property is infringed, misappropriated or
diluted by a third party, such Grantor shall (i) take such actions as such Grantor shall reasonably
deem appropriate under the circumstances to protect such Intellectual Property and (ii) if such
Intellectual Property is of material economic value, promptly notify the Collateral Agent after it
learns thereof and sue for infringement, misappropriation or dilution, to seek appropriate relief
and to recover any and all damages for such infringement, misappropriation or dilution.



     5.10 Commercial Tort Claims. Such Grantor shall advise the Collateral Agent promptly of
any Commercial Tort Claim held by such Grantor in excess of $1,000,000 and shall promptly execute a
supplement to this Agreement in form and substance satisfactory to the Collateral Agent to grant
security interests in such Commercial Tort Claim to the Collateral Agent for the benefit of the
Secured Parties.



     5.11 Deposit Accounts, Securities Accounts. No Grantor shall establish or maintain a
Deposit Account or Securities Account for which such Grantor has not delivered to the Collateral
Agent a control agreement executed by all parties relevant thereto, provided that the
Grantors shall not be required to enter into control agreements with respect to any Deposit
Accounts or Securities Accounts having an aggregate balance of less than $1,000,000.









 



15


SECTION 6. REMEDIAL PROVISIONS




     6.1 Certain Matters Relating to Receivables. (a) After an Event of Default has occurred
and is continuing, the Collateral Agent shall have the right to make test verifications of the
Receivables in any manner and through any medium that it reasonably considers advisable, and each
Grantor shall furnish all such assistance and information as the Collateral Agent may require in
connection with such test verifications.



     (b) The Collateral Agent hereby authorizes each Grantor to collect such Grantor’s Receivables.
The Collateral Agent may curtail or terminate said authority at any time after the occurrence and
during the continuance of an Event of Default. If required by the Collateral Agent, upon the
request of the Required Lenders or the Administrative Agent, at any time after the occurrence and
during the continuance of an Event of Default, any payments of Receivables, when collected by any
Grantor, (i) shall be forthwith (and, in any event, within two Business Days) deposited by such
Grantor in the exact form received, duly indorsed by such Grantor to the Collateral Agent if
required, in the Collateral Account, subject to withdrawal by the Collateral Agent for the account
of the Secured Parties only as provided in Section 7.4, and (ii) until so turned over, shall be
held by such Grantor in trust for the Collateral Agent and the other Secured Parties, segregated
from other funds of such Grantor. Each such deposit of Proceeds of Receivables shall be
accompanied by a report identifying in reasonable detail the nature and source of the payments
included in the deposit.



     (c) At the Collateral Agent’s request, upon the occurrence and during the continuance of an
Event of Default, each Grantor shall deliver to the Collateral Agent all original and other
documents evidencing, and relating to, the agreements and transactions which gave rise to the
Receivables, including, without limitation, all original orders, invoices and shipping receipts.



     6.2 Communications with Obligors; Grantors Remain Liable. (a) The Collateral Agent in
its own name or in the name of others may at any time after the occurrence and during the
continuance of an Event of Default and after prior notice to the Grantors communicate with obligors
under the Receivables to verify with them to the Collateral Agent’s satisfaction the existence,
amount and terms of any Receivables.



     (b) After the occurrence and during the continuance of an Event of Default and at the
direction of the Administrative Agent, the Collateral Agent in its own name or in the name of
others may, and upon the request of the Collateral Agent each Grantor shall, notify obligors on the
Receivables that the Receivables have been assigned to the Collateral Agent for the benefit of the
Secured Parties and that payments in respect thereof shall be made directly to the Collateral
Agent.



     (c) Anything herein to the contrary notwithstanding, each Grantor shall remain liable under
each of the Receivables to observe and perform all the conditions and obligations to be observed
and performed by it thereunder, all in accordance with the terms of any agreement giving rise
thereto. Neither the Collateral Agent nor any Secured Party shall have any obligation or liability
under any Receivable (or any agreement giving rise thereto) by reason of or arising out of this
Agreement or the receipt by the Collateral Agent nor any Secured Party of any payment relating
thereto, nor shall the Collateral Agent or any Secured Party be obligated in any manner to perform
any of the obligations of any Grantor under or pursuant to any Receivable (or any agreement giving
rise thereto), to make any payment, to make any inquiry as to the nature or the sufficiency of any
payment received by it or as to the sufficiency of any performance by any party thereunder, to
present or file any claim, to take any action to enforce any
performance or to collect the payment of any amounts which may have been assigned to it or to
which it may be entitled at any time or times.









 



16


     6.3 Pledged Stock. (a) Unless an Event of Default shall have occurred and be continuing
and the Collateral Agent shall have given notice to the relevant Grantor of the Collateral Agent’s
intent to exercise its corresponding rights pursuant to Section 6.3(b), each Grantor shall be
permitted to receive all cash dividends paid in respect of the Pledged Stock and all payments made
in respect of the Pledged Notes, in each case paid in the normal course of business of the relevant
Issuer and consistent with past practice, to the extent permitted in the Credit Agreement, and to
exercise all voting and corporate or other organizational rights with respect to the Investment
Property; provided, however, that no vote shall be cast or corporate or other
organizational right exercised or other action taken which, in the Administrative Agent’s
reasonable judgment, would result in any violation of any provision of the Credit Agreement, this
Agreement or any other Loan Document.



     (b) If an Event of Default shall occur and be continuing and the Collateral Agent shall give
notice of its intent to exercise such rights to the relevant Grantor or Grantors, (i) the
Collateral Agent shall have the right to receive any and all cash dividends, payments or other
Proceeds paid in respect of the Investment Property and make application thereof to the Secured
Obligations in such order as the Collateral Agent may determine, and (ii) any or all of the
Investment Property shall be registered in the name of the Collateral Agent or its nominee, and the
Collateral Agent or its nominee may thereafter exercise (x) all voting, corporate and other rights
pertaining to such Investment Property at any meeting of shareholders of the relevant Issuer or
Issuers or otherwise and (y) any and all rights of conversion, exchange and subscription and any
other rights, privileges or options pertaining to such Investment Property as if it were the
absolute owner thereof (including, without limitation, the right to exchange at its discretion any
and all of the Investment Property upon the merger, consolidation, reorganization, recapitalization
or other fundamental change in the corporate or other organizational structure of any Issuer, or
upon the exercise by any Grantor or the Collateral Agent of any right, privilege or option
pertaining to such Investment Property, and in connection therewith, the right to deposit and
deliver any and all of the Investment Property with any committee, depositary, transfer agent,
registrar or other designated agency upon such terms and conditions as the Collateral Agent may
determine), all without liability except to account for property actually received by it, but the
Collateral Agent shall have no duty to any Grantor to exercise any such right, privilege or option
and shall not be responsible for any failure to do so or delay in so doing.



     (c) Each Grantor hereby authorizes and instructs each Issuer of any Investment Property
pledged by such Grantor hereunder to (i) comply with any instruction received by it from the
Collateral Agent in writing that (x) states that an Event of Default has occurred and is continuing
and (y) is otherwise in accordance with the terms of this Agreement, without any other or further
instructions from such Grantor, and each Grantor agrees that each Issuer shall be fully protected
in so complying, and (ii) upon delivery of any notice to such effect pursuant to Section 6.3(a),
pay any dividends or other payments with respect to the Investment Property directly to the
Collateral Agent.



     6.4 Proceeds to be Turned Over To Collateral Agent. In addition to the rights of the
Collateral Agent and the Secured Parties specified in Section 6.1 with respect to payments of
Receivables, if an Event of Default shall occur and be continuing, and the Collateral Agent, upon
the request of the Administrative Agent, shall have given notice thereof to the Grantors, all
Proceeds received by any Grantor consisting of cash, checks and other near-cash items shall be held
by such Grantor in trust for the Collateral Agent and the Secured Parties, segregated from
other funds of such Grantor, and shall, forthwith upon receipt by such Grantor, be turned over
to the Collateral Agent in the exact form received by such Grantor (duly indorsed by such Grantor
to the Collateral Agent, if required). All Proceeds received by the Collateral Agent hereunder
shall be held by the Collateral Agent in a Collateral Account maintained under its sole dominion
and control in accordance with Section 7.1. All Proceeds while held by the Collateral Agent in a
Collateral Account (or by such Grantor in trust for the Secured Parties) shall









 



17



continue to be held
as collateral security for all the Secured Obligations and shall not constitute payment thereof
until applied as provided in Section 7.4.



     6.5 Code and Other Remedies. If an Event of Default shall occur and be continuing, upon
the request of the Administrative Agent or the Required Lenders, the Collateral Agent, on behalf of
the Secured Parties, may exercise, in addition to all other rights and remedies granted to them in
this Agreement and in any other instrument or agreement securing, evidencing or relating to the
Secured Obligations, all rights and remedies of a secured party under the New York UCC or any other
applicable law. Without limiting the generality of the foregoing, the Collateral Agent, without
demand of performance or other demand, presentment, protest, advertisement or notice of any kind
(except any notice required by law referred to below) to or upon any Grantor or any other Person
(all and each of which demands, defenses, advertisements and notices are hereby waived), may in
such circumstances forthwith collect, receive, appropriate and realize upon the Collateral, or any
part thereof, and/or may forthwith sell, lease, assign, give option or options to purchase, or
otherwise dispose of and deliver the Collateral or any part thereof (or contract to do any of the
foregoing), in one or more parcels at public or private sale or sales, at any exchange, broker’s
board or office of any Secured Party or elsewhere upon such terms and conditions as it may deem
advisable and at such prices as it may deem best, for cash or on credit or for future delivery
without assumption of any credit risk. Any Secured Party shall have the right upon any such public
sale or sales, and, to the extent permitted by law, upon any such private sale or sales, to
purchase the whole or any part of the Collateral so sold, free of any right or equity of redemption
in any Grantor, which right or equity is hereby waived and released. Each Grantor further agrees,
at the Collateral Agent’s request, to assemble the Collateral and make it available to the
Collateral Agent at places which the Collateral Agent shall reasonably select, whether at such
Grantor’s premises or elsewhere. The Collateral Agent shall apply the net proceeds of any action
taken by it pursuant to this Section 6.5, after deducting all reasonable costs and expenses of
every kind incurred in connection therewith or incidental to the care or safekeeping of any of the
Collateral or in any way relating to the Collateral or the rights of the Secured Parties hereunder,
including, without limitation, reasonable attorneys’ fees and disbursements, to the payment in
whole or in part of the Secured Obligations, in such order as the Collateral Agent may elect, and
only after such application and after the payment by the Collateral Agent of any other amount
required by any provision of law, including, without limitation, Section 9-615(a)(3) of the New
York UCC, need the Collateral Agent account for the surplus, if any, to any Grantor. To the extent
permitted by applicable law, each Grantor waives all claims, damages and demands it may acquire
against the Secured Parties arising out of the exercise by them of any rights hereunder. If any
notice of a proposed sale or other disposition of Collateral shall be required by law, such notice
shall be deemed reasonable and proper if given at least 10 days before such sale or other
disposition.



     6.6 Registration Rights. (a) If the Collateral Agent shall determine to exercise its
right to sell any or all of the Pledged Stock pursuant to Section 6.5, and if in the opinion of the
Collateral Agent it is necessary or advisable to have the Pledged Stock, or that portion thereof to
be sold, registered under the provisions of the Securities Act, the relevant Grantor will cause the
Issuer thereof to (i) execute and deliver, and cause the directors and officers of such Issuer to
execute and deliver, all such instruments and documents, and do or cause to be done all such other
acts as may be, in the opinion of the Collateral Agent, necessary or
advisable to register the Pledged Stock, or that portion thereof to be sold, under the
provisions of the Securities Act, (ii) use its best efforts to cause the registration statement
relating thereto to become effective and to remain effective for a period of one year from the date
of the first public offering of the Pledged Stock, or that portion thereof to be sold, and (iii)
make all amendments thereto and/or to the related prospectus which, in the opinion of the
Collateral Agent, are necessary or advisable, all in conformity with the requirements of the
Securities Act and the rules and regulations of the Securities and Exchange Commission applicable
thereto. Each Grantor agrees to cause such Issuer to comply with the provisions of the securities
or “Blue Sky” laws of any and all jurisdictions which the









 



18



Collateral Agent shall designate and to
make available to its security holders, as soon as practicable, an earnings statement (which need
not be audited) which will satisfy the provisions of Section 11(a) of the Securities Act.



     (b) Each Grantor recognizes that the Collateral Agent may be unable to effect a public sale of
any or all the Pledged Stock, by reason of certain prohibitions contained in the Securities Act and
applicable state securities laws or otherwise, and may be compelled to resort to one or more
private sales thereof to a restricted group of purchasers which will be obliged to agree, among
other things, to acquire such securities for their own account for investment and not with a view
to the distribution or resale thereof. Each Grantor acknowledges and agrees that any such private
sale may result in prices and other terms less favorable than if such sale were a public sale and,
notwithstanding such circumstances, agrees that any such private sale shall be deemed to have been
made in a commercially reasonable manner. The Collateral Agent shall be under no obligation to
delay a sale of any of the Pledged Stock for the period of time necessary to permit the Issuer
thereof to register such securities for public sale under the Securities Act, or under applicable
state securities laws, even if such Issuer would agree to do so.



     (c) Each Grantor agrees to use its best efforts to do or cause to be done all such other acts
as may be necessary to make such sale or sales of all or any portion of the Pledged Stock pursuant
to this Section 6.6 valid and binding and in compliance with any and all other applicable
Requirements of Law. Each Grantor further agrees that a breach of any of the covenants contained
in this Section 6.6 will cause irreparable injury to the Collateral Agent and the Secured Parties,
that the Collateral Agent and the Secured Parties have no adequate remedy at law in respect of such
breach and, as a consequence, that each and every covenant contained in this Section 6.6 shall be
specifically enforceable against such Grantor, and such Grantor hereby waives and agrees not to
assert any defenses against an action for specific performance of such covenants except for a
defense that no Event of Default has occurred under the Credit Agreement.



     6.7 Deficiency. Each Grantor shall remain liable for any deficiency if the proceeds of
any sale or other disposition of the Collateral are insufficient to pay the Secured Obligations and
the fees and disbursements of any attorneys employed by the Collateral Agent or any Secured Party
to collect such deficiency.



SECTION 7. THE COLLATERAL ACCOUNT; DISTRIBUTIONS




     7.1 The Collateral Account. At such time as the Collateral Agent deems appropriate, there
shall be established and, at all times thereafter until this Agreement shall have terminated, the
Collateral Agent shall maintain a separate collateral account under its sole dominion and control
(the “Collateral Account”). All moneys which are received by the Collateral Agent or any
agent or nominee of the Collateral Agent in respect of the Collateral, whether in connection with
the exercise of the remedies provided in this Agreement or any
Security Document, shall be deposited in the Collateral Account and held by the Collateral
Agent as part of the Collateral and applied in accordance with the terms of this Agreement.



     7.2 Control of Collateral Account. All right, title and interest in and to the Collateral
Account shall vest in the Collateral Agent, and funds on deposit in the Collateral Account shall
constitute part of the Collateral. The Collateral Account shall be subject to the exclusive
dominion and control of the Collateral Agent.



     7.3 Investment of Funds Deposited in Collateral Account. The Collateral Agent may, but is
under no obligation to, invest and reinvest moneys on deposit in the Collateral Account at any time
in Permitted Investments. All such investments and the interest and income received thereon and
the net









 



19



proceeds realized on the sale or redemption thereof shall be held in the Collateral Account
and constitute Collateral. The Collateral Agent shall not be responsible for any diminution in
funds resulting from such investments or any liquidation prior to maturity.



     7.4 Application of Moneys. (a) The Collateral Agent shall have the right at any time to
apply moneys held by it in the Collateral Account to the payment of due and unpaid Collateral Agent
Fees.



     (b) All remaining moneys held by the Collateral Agent in the Collateral Account or received by
the Collateral Agent with respect to the Collateral shall, to the extent available for distribution
(it being understood that the Collateral Agent may liquidate investments prior to maturity in order
to make a distribution pursuant to this Section 7.4), be distributed by the Collateral Agent on
each Distribution Date in the following order of priority (with such distributions being made by
the Collateral Agent to the respective representatives for the Secured Parties as provided in
Section 7.4(d), and each such representative shall be responsible for insuring that amounts
distributed to it are distributed to its Secured Parties in the order of priority set forth below):




     First, to the Collateral Agent for any unpaid Collateral Agent Fees and then to
any Secured Party which has theretofore advanced or paid any Collateral Agent Fees
constituting administrative expenses allowable under Section 503(b) of the Bankruptcy Code,
an amount equal to the amount thereof so advanced or paid by such Secured Party and for
which such Secured Party has not been reimbursed prior to such Distribution Date, and, if
such moneys shall be insufficient to pay such amounts in full, then ratably (without
priority of any one over any other) to such Secured Parties in proportion to the amounts of
such Collateral Agent Fees advanced by the respective Secured Parties and remaining unpaid
on such Distribution Date;




     Second, to any Secured Party which has theretofore advanced or paid any
Collateral Agent Fees other than such administrative expenses described in clause
First above, an amount equal to the amount thereof so advanced or paid by such
Secured Party and for which such Secured Party has not been reimbursed prior to such
Distribution Date, and, if such moneys shall be insufficient to pay such amounts in full,
then ratably (without priority of any one over any other) to such Secured Parties in
proportion to the amounts of such Collateral Agent Fees advanced by the respective Secured
Parties and remaining unpaid on such Distribution Date;




     Third, to the Secured Parties, the amount then due and owing and remaining
unpaid in respect of the Obligations, pro rata among the Secured Parties to
which such Obligations are then
due and owing based on the respective amounts thereof, until such Obligations are paid
or cash collateralized (to the extent not then due and payable) in full;




     Fourth (this clause being applicable only if an Event of Default shall have
occurred and be continuing), to the Secured Parties, the amount of unpaid principal,
interest, fees, charges, costs and expenses in respect of the Obligations, pro
rata among the Secured Parties holding such Obligations based on the respective
amounts thereof, until such Obligations are paid or cash collateralized (to the extent not
then due and payable) in full; and




     Fifth, any balance remaining after the Obligations shall have been paid or cash
collateralized in full, no Letters of Credit shall be outstanding and the Commitments shall
have terminated shall be paid over to the Borrower or to whomsoever may be lawfully entitled
to receive the same.



     (c) The term “unpaid” as used in clauses Third and Fourth of Section 7.4(b)
refers:









 



20



     (i) in the absence of a bankruptcy proceeding with respect to the relevant
Grantor(s), to all amounts of the Obligations outstanding as of a Distribution Date,
and




     (ii) during the pendency of a bankruptcy proceeding with respect to the
relevant Grantor(s), to all amounts allowed (within the meaning of Title 11 of the
United States Code entitled “Bankruptcy”) by the bankruptcy court in respect of the
Obligations as a basis for distribution (including estimated amounts, if any,
allowed in respect of contingent claims),


to the extent that prior distributions have not been made in respect thereof.




     (d) The Collateral Agent shall make all payments and distributions under this Section 7.4 on
account of Obligations to the Administrative Agent, pursuant to directions of the Administrative
Agent, for re-distribution in accordance with the provisions of the Credit Agreement.



     7.5 Collateral Agent’s Calculations. In making the determinations and allocations
required by Section 7.4, the Collateral Agent may conclusively rely upon information supplied by
the Administrative Agent as to the amounts of unpaid principal and interest and other amounts
outstanding with respect to the Obligations and, as to the amounts of any other Obligations,
information supplied by the holder thereof, and the Collateral Agent shall have no liability to any
of the Secured Parties for actions taken in reliance on such information, provided that nothing in
this sentence shall prevent any Grantor from contesting any amounts claimed by any Secured Party in
any information so supplied. All distributions made by the Collateral Agent pursuant to Section
7.4 shall be (subject to any decree of any court of competent jurisdiction) final (absent manifest
error), and the Collateral Agent shall have no duty to inquire as to the application by the
Administrative Agent of any amounts distributed to them.



SECTION 8. THE COLLATERAL AGENT




     8.1 Collateral Agent’s Appointment as Attorney-in-Fact, etc. (a) Each Grantor hereby
irrevocably constitutes and appoints the Collateral Agent and any officer or agent thereof, with
full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power and
authority in the place and stead of such Grantor and in the name of such
Grantor or in its own name, for the purpose of carrying out the terms of this Agreement, to
take any and all appropriate action and to execute any and all documents and instruments which may
be necessary or desirable to accomplish the purposes of this Agreement, and, without limiting the
generality of the foregoing, each Grantor hereby gives the Collateral Agent the power and right, on
behalf of such Grantor, without notice to or assent by such Grantor, to do any or all of the
following:




     (i) in the name of such Grantor or its own name, or otherwise, take possession of and
indorse and collect any checks, drafts, notes, acceptances or other instruments for the payment
of moneys due under any Receivable or with respect to any other Collateral and file any claim or
take any other action or proceeding in any court of law or equity or otherwise deemed
appropriate by the Collateral Agent for the purpose of collecting any and all such moneys due
under any Receivable or with respect to any other Collateral whenever payable;




     (ii) in the case of any Intellectual Property, execute and deliver, and have recorded, any
and all agreements, instruments, documents and papers as the Collateral Agent may reasonably
request to evidence the Collateral Agent’s security interest in such Intellectual Property (and
the associated goodwill) and general intangibles of such Grantor relating thereto or represented
thereby;









 



21



     (iii) pay or discharge taxes and Liens levied or placed on or threatened against the
Collateral, effect any repairs or any insurance called for by the terms of this Agreement and
pay all or any part of the premiums therefor and the costs thereof;




     (iv) execute, in connection with any sale provided for in Section 6.5 or 6.6, any
indorsements, assignments or other instruments of conveyance or transfer with respect to the
Collateral; and




     (v) (1) direct any party liable for any payment under any of the Collateral to make
payment of any and all moneys due or to become due thereunder directly to the Collateral Agent
or as the Collateral Agent shall direct; (2) ask or demand for, collect, and receive payment of
and receipt for, any and all moneys, claims and other amounts due or to become due at any time
in respect of or arising out of any Collateral; (3) sign and indorse any invoices, freight or
express bills, bills of lading, storage or warehouse receipts, drafts against debtors,
assignments, verifications, notices and other documents in connection with any of the
Collateral; (4) commence and prosecute any suits, actions or proceedings at law or in equity in
any court of competent jurisdiction to collect the Collateral or any portion thereof and to
enforce any other right in respect of any Collateral; (5) defend any suit, action or proceeding
brought against such Grantor with respect to any Collateral; (6) settle, compromise or adjust
any such suit, action or proceeding and, in connection therewith, give such discharges or
releases as the Collateral Agent may deem appropriate; (7) assign any Copyright, Patent or
Trademark (along with the goodwill of the business to which any such Copyright, Patent or
Trademark pertains), throughout the world for such term or terms, on such conditions, and in
such manner, as the Collateral Agent shall in its sole discretion determine; and (8) generally,
sell, transfer, pledge and make any agreement with respect to or otherwise deal with any of the
Collateral as fully and completely as though the Collateral Agent were the absolute owner
thereof for all purposes, and do, at the Collateral Agent’s option and such Grantor’s expense,
at any time, or from time to time, all acts and things which the Collateral Agent deems
necessary to protect, preserve or realize upon the Collateral and Collateral Agent’s security
interests therein and to effect the intent of this Agreement, all as fully and effectively as
such Grantor might do.



     Anything in this Section 8.1(a) to the contrary notwithstanding, the Collateral Agent agrees
that it will not exercise any rights under the power of attorney provided for in this Section
8.1(a) unless an Event of Default shall have occurred and be continuing.



     (b) If any Grantor fails to perform or comply with any of its agreements contained herein, the
Collateral Agent, at its option, but without any obligation so to do, may perform or comply, or
otherwise cause performance or compliance, with such agreement.



     (c) The expenses of the Collateral Agent incurred in connection with actions undertaken as
provided in this Section 8.1, together with interest thereon at the rate applicable thereto under
Section 2.13(c) of the Credit Agreement, from the date of payment by the Collateral Agent to the
date reimbursed by the relevant Grantor, shall be payable by such Grantor to the Collateral Agent
on demand.



     (d) Each Grantor hereby ratifies all that said attorneys shall lawfully do or cause to be done
by virtue hereof. All powers, authorizations and agencies contained in this Agreement are coupled
with an interest and are irrevocable until this Agreement is terminated and the security interests
created hereby are released.



     8.2 Appointment of Collateral Agent as Agent for the Secured Parties. By acceptance of
the benefits of this Agreement and the Security Documents, each Secured Party shall be deemed
irrevocably (i) to consent to the appointment of the Collateral Agent as its agent hereunder and
under the Security Documents, (ii) to confirm that the Collateral Agent shall have the authority to
act as the exclusive agent









 



22



of such Secured Party for enforcement of any provisions of this
Agreement and the Security Documents against any Grantor or the exercise of remedies hereunder or
thereunder, (iii) to agree that such Secured Party shall not take any action to enforce any
provisions of this Agreement or any Security Document against any Grantor or to exercise any remedy
hereunder or thereunder and (iv) to agree to be bound by the terms of this Agreement and the
Security Documents.



     8.3 Duty of Collateral Agent. The Collateral Agent’s sole duty with respect to the
custody, safekeeping and physical preservation of the Collateral in its possession, under Section
9-207 of the New York UCC or otherwise, shall be to deal with it in the same manner as the
Collateral Agent deals with similar property for its own account. No Secured Party nor any of its
officers, directors, employees or agents shall be liable for failure to demand, collect or realize
upon any of the Collateral or for any delay in doing so or shall be under any obligation to sell or
otherwise dispose of any Collateral upon the request of any Grantor or any other Person or to take
any other action whatsoever with regard to the Collateral or any part thereof. The powers
conferred on the Collateral Agent and the Secured Parties hereunder are solely to protect the
Collateral Agent’s and the Secured Parties’ interests in the Collateral and shall not impose any
duty upon the Collateral Agent or any Secured Party to exercise any such powers. The Collateral
Agent and the Secured Parties shall be accountable only for amounts that they actually receive as a
result of the exercise of such powers, and neither they nor any of their officers, directors,
employees or agents shall be responsible to any Grantor for any act or failure to act hereunder,
except for their own gross negligence or willful misconduct.



     8.4 Execution of Financing Statements. Pursuant to any applicable law, each Grantor
authorizes the Collateral Agent to file or record financing statements and other filing or
recording documents or instruments with respect to the Collateral without the signature of such
Grantor in such form and in such offices as the Collateral Agent determines appropriate to perfect
the security interests of the Collateral Agent under this Agreement. Each Grantor authorizes the
Collateral Agent to use the collateral description “all personal property” in any such financing
statement. Each Grantor hereby ratifies and authorizes the filing by the Collateral Agent of any
financing statement with respect to the Collateral made prior to the date hereof.



     8.5 General Provisions. The Collateral Agent shall be entitled to all of the benefits of
Article VIII of the Credit Agreement.



     8.6 Authority of Collateral Agent. Each Grantor acknowledges that the rights and
responsibilities of the Collateral Agent under this Agreement with respect to any action taken by
the Collateral Agent or the exercise or non-exercise by the Collateral Agent of any option, voting
right, request, judgment or other right or remedy provided for herein or resulting or arising out
of this Agreement shall, as between the Collateral Agent and the other Secured Parties, be governed
by this Agreement and by such other agreements as may exist from time to time among them, but, as
between the Collateral Agent and the Grantors, the Collateral Agent shall be conclusively presumed
to be acting as agent for the Secured Parties with full and valid authority so to act or refrain
from acting, and no Grantor shall be under any obligation, or entitlement, to make any inquiry
respecting such authority.



SECTION 9. MISCELLANEOUS




     9.1 Amendments in Writing. None of the terms or provisions of this Agreement may be
waived, amended, supplemented or otherwise modified except with the consent of the Collateral Agent
and in accordance with Section 9.02 of the Credit Agreement.



     9.2 Notices. All notices, requests and demands to or upon the Administrative Agent or any
Grantor hereunder shall be effected in the manner provided for in Section 9.01 of the Credit
Agreement;









 



23



provided that any such notice, request or demand to or upon any Guarantor shall be
addressed to such Guarantor at its notice address set forth on Schedule 1 or such other
address specified in writing to the Administrative Agent in accordance with such Section. All
notices, requests and demands to or upon the Collateral Agent shall be effected in the manner
provided for in Section 9.01 of the Credit Agreement and shall be addressed to the Collateral Agent
at 270 Park Avenue, New York, New York 10017.



     9.3 No Waiver by Course of Conduct; Cumulative Remedies. Neither the Collateral Agent nor
any Secured Party shall by any act (except by a written instrument pursuant to Section 9.1), delay,
indulgence, omission or otherwise be deemed to have waived any right or remedy hereunder or to have
acquiesced in any Default or Event of Default. No failure to exercise, nor any delay in
exercising, on the part of the Collateral Agent or any Secured Party, any right, power or privilege
hereunder shall operate as a waiver thereof. No single or partial exercise of any right, power or
privilege hereunder shall preclude any other or further exercise thereof or the exercise of any
other right, power or privilege. A waiver by the Collateral Agent or any Secured Party of any
right or remedy hereunder on any one occasion shall not be construed as a bar to any right or
remedy which the Collateral Agent or such Secured Party would otherwise have on any future
occasion. The rights and remedies herein provided are cumulative, may be exercised singly or
concurrently and are not exclusive of any other rights or remedies provided by law.



     9.4 Enforcement Expenses; Indemnification. (a) The parties hereto agree that the Collateral Agent shall be entitled to reimbursement of its
reasonable expenses incurred hereunder as provided in Section 9.03 of the Credit Agreement.



     (b) Without limitation of its indemnification obligations under the other Loan Documents, each
Grantor jointly and severally agrees to indemnify the Collateral Agent and the other Indemnitees
(as defined in Section 9.03 of the Credit Agreement) against, and hold each Indemnitee harmless
from, any and all losses, claims, damages, liabilities and related expenses, including the
reasonable fees, charges and disbursements of any counsel for any Indemnitee, incurred by or
asserted against any Indemnitee arising out of, in connection with, or as a result of, the
execution, delivery or performance of this Agreement or any claim, litigation, investigation or
proceeding relating hereto, or to the Collateral, whether or not any Indemnitee is a party thereto;
provided that such indemnity shall not, as to any Indemnitee, be available to the extent
that such losses, claims, damages, liabilities or related expenses are determined by a court of
competent jurisdiction by final and nonappealable judgment to have resulted from the gross
negligence or wilful misconduct of such Indemnitee.



     (c) Any such amounts payable as provided hereunder shall be additional Obligations secured
hereby and by the other Security Documents. The provisions of this Section 9.4 shall remain
operative and in full force and effect regardless of the termination of this Agreement or any other
Loan Document, the consummation of the transactions contemplated hereby, the repayment of any of
the Obligations, the invalidity or unenforceability of any term or provision of this Agreement or
any other Loan Document, or any investigation made by or on behalf of the Collateral Agent or any
other Secured Party. All amounts due under this Section 9.4 shall be payable on written demand
therefor.



     9.5 Successors and Assigns. This Agreement shall be binding upon the successors and
assigns of each Grantor and shall inure to the benefit of the Collateral Agent and the Secured
Parties and their successors and assigns; provided that no Grantor may assign, transfer or delegate
any of its rights or obligations under this Agreement without the prior written consent of the
Collateral Agent.



     9.6 Setoff. If an Event of Default shall have occurred and be continuing, each Secured
Party and each of its Affiliates is hereby authorized at any time and from time to time, to the
fullest extent permitted by law, to set off and apply any and all deposits (general or special,
time or demand, provisional or final) at any time held and other obligations at any time owing by
such Secured Party or









 



24



Affiliate to or for the credit or the account of the Borrower against any of
and all the obligations of the Borrower now or hereafter existing under this Agreement held by such
Secured Party, irrespective of whether or not such Secured Party shall have made any demand under
this Agreement and although such obligations may be unmatured. The rights of each Secured Party
under this Section are in addition to other rights and remedies (including other rights of setoff)
which such Secured Party may have.



     9.7 Counterparts. This Agreement may be executed by one or more of the parties to this
Agreement on any number of separate counterparts (including by telecopy or other electronic
transmission), and all of said counterparts taken together shall be deemed to constitute one and
the same instrument.



     9.8 Severability. Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction
shall, as to such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in
any other jurisdiction.



     9.9 Section Headings. The Section headings used in this Agreement are for convenience of
reference only and are not to affect the construction hereof or be taken into consideration in the
interpretation hereof.



     9.10 Integration. This Agreement and the other Loan Documents represent the agreement of
the Grantors, the Collateral Agent and the Secured Parties with respect to the subject matter
hereof and thereof, and there are no promises, undertakings, representations or warranties by the
Collateral Agent or any Secured Party relative to subject matter hereof and thereof not expressly
set forth or referred to herein or in the other Loan Documents.



     9.11 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.



     9.12 Submission To Jurisdiction; Waivers. Each Grantor hereby irrevocably and
unconditionally:



     (a) submits for itself and its property in any legal action or proceeding relating to this
Agreement and the other Loan Documents to which it is a party, or for recognition and enforcement
of any judgment in respect thereof, to the non-exclusive general jurisdiction of the courts of the
State of New York, the courts of the United States of America for the Southern District of New
York, and appellate courts from any thereof;



     (b) consents that any such action or proceeding may be brought in such courts and waives any
objection that it may now or hereafter have to the venue of any such action or proceeding in any
such court or that such action or proceeding was brought in an inconvenient court and agrees not to
plead or claim the same;



     (c) agrees that service of process in any such action or proceeding may be effected by mailing
a copy thereof by registered or certified mail (or any substantially similar form of mail), postage
prepaid, to such Grantor at its address referred to in Section 9.2 or at such other address of
which the Collateral Agent shall have been notified pursuant thereto;









 



25


     (d) agrees that nothing herein shall affect the right to effect service of process in any
other manner permitted by law or shall limit the right to sue in any other jurisdiction; and



     (e) waives, to the maximum extent not prohibited by law, any right it may have to claim or
recover in any legal action or proceeding referred to in this Section any special, exemplary,
punitive or consequential damages.



     9.13 Acknowledgements. Each Grantor hereby acknowledges that:



     (a) it has been advised by counsel in the negotiation, execution and delivery of this
Agreement and the other Loan Documents to which it is a party;



     (b) neither the Collateral Agent nor any other Secured Party has any fiduciary relationship
with or duty to any Grantor arising out of or in connection with this Agreement or any of the other
Loan Documents, and the relationship between the Grantors, on the one hand, and the Collateral
Agent and the Secured Parties, on the other hand, in connection herewith or therewith is solely
that of debtor and creditor; and



     (c) no joint venture is created hereby or by the other Loan Documents or otherwise exists by
virtue of the transactions contemplated hereby among the Secured Parties or among the Grantors and
the Secured Parties.



     9.14 Additional Grantors. Each Subsidiary of the Borrower that is required to become a
party to this Agreement pursuant to Section 5.12 of the Credit Agreement shall become a Grantor for
all purposes of this Agreement upon execution and delivery by such Subsidiary of an Assumption
Agreement in the form of Annex I hereto.



     9.15 Releases. (a) Subject to clause (b) below, at such time as the Loans and the other
Obligations (other than Obligations in respect of Specified Swap Agreements) shall have been paid
in full and the Commitments have been terminated, the Collateral shall be released from the Liens
created hereby, and this Agreement and all obligations (other than those expressly stated to
survive such termination) of the Collateral Agent and each Grantor hereunder shall terminate, all
without delivery of any instrument or performance of any act by any party, and all rights to the
Collateral shall revert to the Grantors. At the request and sole expense of any Grantor following
any such termination, the Collateral Agent shall deliver to such Grantor any Collateral held by the
Collateral Agent hereunder, and execute and deliver to such Grantor such documents as such Grantor
shall reasonably request to evidence such termination.



     (b) In the event that the East/West Merger is consummated in compliance with the terms of the
Credit Agreement and without any further action required by any party hereto (without limiting the
rights of the Administrative Agent to request any amendments or acknowledgments contemplated by
Section 4.03(d) of the Credit Agreement), the terms of this Agreement shall be superseded by the
terms of the East Guarantee and Collateral Agreement (other than the terms of this Agreement
expressly stated to survive termination) and the guarantees contained herein and Liens created
hereby shall continue and remain in full force and effect thereunder.



     (c) If any of the Collateral shall be sold, transferred or otherwise disposed of by any
Grantor in a transaction permitted by the Credit Agreement, then the Collateral Agent, at the
request and sole expense of such Grantor, shall execute and deliver to such Grantor all releases or
other documents reasonably necessary or desirable for the release of the Liens created hereby on
such Collateral. At the request and sole expense of the Borrower, a Subsidiary Loan Party shall be
released from its obligations









 



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hereunder in the event that all the Equity Interests of such
Subsidiary Loan Party shall be sold, transferred or otherwise disposed of in a transaction
permitted by the Credit Agreement; provided that the Borrower
shall have delivered to the Collateral Agent, at least ten Business Days prior to the date of
the proposed release, a written request for release identifying the relevant Subsidiary Loan Party
and the terms of the sale or other disposition in reasonable detail, including the price thereof
and any expenses in connection therewith, together with a certification by the Borrower stating
that such transaction is in compliance with the Credit Agreement and the other Loan Documents.



     9.16 WAIVER OF JURY TRIAL. EACH GRANTOR HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES
TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.









 



27


          IN WITNESS WHEREOF, each of the undersigned has caused this Guarantee
and Collateral Agreement to be duly executed and delivered as of the date first above written.




	 	 	 	 	 
	 	JPMORGAN CHASE BANK, N.A., as Collateral

Agent

 	 
	 	By:  	/s/ Peter B. Thauer
 	 
	 	 	Name:  	Peter B. Thauer 	 
	 	 	Title:  	Executive Director 	 
	 
	 	DEX MEDIA WEST, INC.

 	 
	 	By:  	/s/ Jenny L. Apker
 	 
	 	 	Name:  	Jenny L. Apker 	 
	 	 	Title:  	Vice President and Treasurer 	 
	 
	 	DEX MEDIA WEST LLC

 	 
	 	By:  	/s/ Jenny L. Apker
 	 
	 	 	Name:  	Jenny L. Apker 	 
	 	 	Title:  	Vice President and Treasurer 	 
	 
	 	DEX MEDIA WEST FINANCE CO.

 	 
	 	By:  	/s/ Jenny L. Apker
 	 
	 	 	Name:  	Jenny L. Apker 	 
	 	 	Title:  	Vice President and Treasurer 	 
	 



Signature Page to the Dex Media West Guarantee and Collateral Agreement