guarantee.htm


Exhibit 10.3


 




	
 


 


 


SECOND AMENDED AND RESTATED GUARANTEE AND COLLATERAL AGREEMENT


 


	
dated as of


	
September 30, 2010,


	
among


	
DENNY’S, INC.,


	
DENNY’S REALTY, LLC,


	
DENNY’S CORPORATION,


	
DENNY’S HOLDINGS, INC.,


	
DFO, LLC,


	
the other Subsidiaries of Parent from time to time party hereto,


	
and


	
BANK OF AMERICA, N.A.,


	
as Administrative Agent


 












 







 







 






  





  











  








Table of Contents


 


Page        


 



	
ARTICLE I

	
Definitions 

	
20







 



	
  

	
Section 1.01.

	
Credit Agreement 

	
20







 



	
  

	
Section 1.02.

	
Other Defined Terms 

	
20







 



	
ARTICLE II

	
Guarantee 

	
23







 



	
  

	
Section 2.01.

	
Guarantee 

	
23







 



	
  

	
Section 2.02.

	
Guarantee of Payment 

	
24







 



	
  

	
Section 2.03.

	
No Limitations, Etc 

	
24







 



	
  

	
Section 2.04.

	
Reinstatement 

	
26







 



	
  

	
Section 2.05.

	
Agreement To Pay; Subrogation 

	
26







 



	
  

	
Section 2.06.

	
Information 

	
26







 



	
ARTICLE III

	
Pledge of Securities

	27





 



	
  

	
Section 3.01.

	
Pledge 

	
27







 



	
  

	
Section 3.02.

	
Delivery of the Pledged Collateral 

	
27







 



	
  

	
Section 3.03.

	
Representations, Warranties and Covenants 

	
28







 



	
  

	
Section 3.04.

	
Certification of Limited Liability Company and Limited Partnership Interests 

	
29







 



	
  

	
Section 3.05.

	
Registration in Nominee Name; Denominations 

	
29







 



	
  

	
Section 3.06.

	
Voting Rights; Dividends and Interest, etc 

	
29







 



	
ARTICLE IV

	
Security Interests in Personal Property

	30





 



	
  

	
Section 4.01.

	
Security Interest 

	
30







 



	
  

	
Section 4.02.

	
Representations and Warranties 

	
31







 



	
  

	
Section 4.03.

	
Covenants 

	
33







 



	
  

	
Section 4.04.

	
Other Actions 

	
36







 



	
  

	
Section 4.05.

	
Covenants Regarding Patent, Trademark and Copyright Collateral 

	
38







 



	
ARTICLE V

	
Remedies 

	
40







 



	
  

	
Section 5.01.

	
Remedies Upon Default 

	
40







 



	
  

	
Section 5.02.

	
Application of Proceeds 

	
41







 



	
  

	
Section 5.03.

	
Grant of License to Use Intellectual Property 

	
41







 



	
  

	
Section 5.04.

	
Securities Act, etc 

	
41







 


 




  





  











  






ii         


 



	
ARTICLE VI

	
Indemnity, Subrogation and Subordination

	42





 



	
  

	
Section 6.01.

	
Indemnity and Subrogation 

	
42







 



	
  

	
Section 6.02.

	
Contribution and Subrogation 

	
42







 



	
  

	
Section 6.03.

	
Subordination 

	
43







 



	
ARTICLE VII

	
Miscellaneous

	43





 



	
  

	
Section 7.01.

	
Notices 

	
43







 



	
  

	
Section 7.02.

	
Security Interest Absolute 

	
43







 



	
  

	
Section 7.03.

	
Survival of Agreement 

	
43







 



	
  

	
Section 7.04.

	
Binding Effect; Several Agreement 

	
43







 



	
  

	
Section 7.05.

	
Successors and Assigns 

	
44







 



	
  

	
Section 7.06.

	
Administrative Agent’s Fees and Expenses; Indemnification 

	
44







 



	
  

	
Section 7.07.

	
Administrative Agent Appointed Attorney-in-Fact

	44





 



	
  

	
Section 7.08.

	
GOVERNING LAW 

	
45







 



	
  

	
Section 7.09.

	
Waivers; Amendment 

	
45







 



	
  

	
Section 7.10.

	
WAIVER OF JURY TRIAL 

	
46







 



	
  

	
Section 7.11.

	
Severability 

	
46







 



	
  

	
Section 7.12.

	
Counterparts 

	
46







 



	
  

	
Section 7.13.

	
Headings 

	
46







 



	
  

	
Section 7.14.

	
Jurisdiction; Consent to Service of Process 

	
46







 



	
  

	
Section 7.15.

	
Termination or Release 

	
47







 



	
  

	
Section 7.16.

	
Additional Subsidiaries 

	
47







 



	
  

	
Section 7.17.

	
Right of Setoff 

	
47







 



	
  

	
Section 7.18.

	
Amendment and Restatement 

	
48







 






  





  











  






iii         

 


 







 



	
Schedules

	 	 
	 	 	 
	Schedule I 	Subsidiary Loan Parties	 
	 	 	 
	Schedule II	Pledged Equity Securities; Pledged Debt Securities	 
	 	 	 
	Schedule III	Intellectual Property	 
	 	 	 
	Schedule IV 	Insurance Requirements	 
	 	 	 
	Exhibits	 	 
	 	 	 
	Exhibit I	Form of Supplement to the Guarantee and Collateral Agreement	 
	 	 	 
	Exhibit II 	Form of Perfection Certificate	 





 


 







 







 






  





  











  








SECOND AMENDED AND RESTATED GUARANTEE AND COLLATERAL AGREEMENT


 


SECOND AMENDED AND RESTATED GUARANTEE AND COLLATERAL AGREEMENT dated as of September 30, 2010 (this “Agreement”), by and among Denny’s, Inc., a California corporation (“Denny’s”), Denny’s Realty, LLC, a Delaware limited liability company (“Denny’s Realty” and, together with Denny’s, collectively, the “Borrowers” and each individually, a “Borrower”), Denny’s Corporation, a Delaware corporation (“Parent”), Denny’s Holdings, Inc., a New York corporation (“Denny’s Holdings”), DFO, LLC, a Delaware limited liability company (“DFO”), each other Subsidiary of Parent from time to time party hereto and Bank of America, N.A. (“Bank of America”), as administrative agent and collateral agent (in such capacities under any of the Loan Documents (as defined in the Credit Agreement referred to below), the “Administrative Agent”) for the Secured Parties (as defined in the Credit Agreement referred to below).


 


WHEREAS, Borrowers, Parent, Denny’s Holdings, DFO, the lenders from time to time party thereto and the Administrative Agent are parties to the Amended and Restated Credit Agreement, dated December 15, 2006 (as amended prior to the date hereof, the “Existing Credit Agreement”), pursuant to which the lenders thereto have, subject to the terms and conditions set forth therein, made loans and otherwise extended credit to Borrowers;


 


WHEREAS, pursuant to the Amended and Restated Guarantee and Collateral Agreement, dated as of December 15, 2006 (as amended prior to the date hereof, the “Existing Guarantee and Collateral Agreement”), among the undersigned Grantors and Administrative Agent (as collateral agent), each of the undersigned Grantors (i) granted to the Administrative Agent (as collateral agent), for the benefit of the “Secured Parties” (as defined in the Existing Guarantee and Collateral Agreement), a security interest in all of its “Article 9 Collateral” (as defined in the Existing Guarantee and Collateral Agreement), (ii) pledged and assigned to the Administrative Agent (as collateral agent), for the benefit of the “Secured Parties” (as defined in the Existing Guarantee and Collateral Agreement), and granted to the Administrative Agent (as collateral agent), for the benefit of the “Secured Parties” (as defined in the Existing Guarantee and Collateral Agreement), a security interest in all of its “Pledged Collateral” (as defined in the Existing Guarantee and Collateral Agreement) and (iii) and each Grantor unconditionally guaranteed to the Administrative Agent (as collateral agent), for the benefit of the “Secured Parties” (as defined in the Existing Guarantee and Collateral Agreement), the payment and performance of the “Obligations” (as defined in the Existing Guarantee and Collateral Agreement).


 


WHEREAS, as of the date hereof, the Existing Credit Agreement is being amended and restated in its entirety pursuant to the terms and conditions set forth in the Second Amended and Restated Credit Agreement, dated as of September 30, 2010 (as amended, amended and restated, supplemented, waived or otherwise modified from time to time, the “Credit Agreement”), among Borrowers, Parent, Denny’s Holdings, DFO, the lenders from time to time party thereto (the “Lenders”), and Bank of America, as Administrative Agent and L/C Issuer.


 


WHEREAS, the obligations of the Lenders, the Administrative Agent and the L/C Issuer to enter into the Credit Agreement and to extend credit to the Borrowers thereunder are conditioned upon, among other things, the Borrowers, Parent, Denny’s Holdings, DFO and the Administrative Agent entering into an amendment and restatement of the Existing Guarantee and Collateral Agreement in the form of this Agreement and the execution and delivery of this Agreement by the parties hereto;


 


WHEREAS, Parent, Denny’s Holdings and DFO are affiliates of the Borrowers and will derive substantial benefits from the extension of credit to the Borrowers pursuant to the Credit Agreement and are willing to execute and deliver this Agreement in order to induce the Lenders, the Administrative Agent and the L/C Issuer to extend such credit; and


 


 




  





  











  






 


WHEREAS, each Grantor wishes to (a) continue, confirm and ratify its (i) grant of a security interest in “Article 9 Collateral” (as defined in the Existing Guarantee and Collateral Agreement) made in favor of the Administrative Agent, as collateral agent, for the benefit of the “Secured Parties” (as defined in the Existing Guarantee and Collateral Agreement) pursuant to the Existing Guarantee and Collateral Agreement, (ii) pledge and assignment of, and the grant of security interest in, all of its “Pledged Collateral” (as defined in the Existing Guarantee and Collateral Agreement) to the Administrative Agent, as collateral agent, for the benefit of the “Secured Parties” (as defined in the Existing Guarantee and Collateral Agreement) pursuant to the Existing Guarantee and Collateral Agreement and (iii) guarantee to the Administrative Agent, as collateral agent, for the benefit of the “Secured Parties” (as defined in the Existing Guarantee and Collateral Agreement) of the payment and performance of the “Obligations” (as defined in the Existing Guarantee and Collateral Agreement) and (b) (i) grant a security interest in all of its Article 9 Collateral in favor of the Administrative Agent, for the benefit of the Secured Parties, (ii) pledge and assign, and grant a security interest in, the Pledged Collateral to the Administrative Agent, for the benefit of the Secured Parties, and (iii) guarantee to the Administrative Agent, for the benefit of the Secured Parties, the payment and performance of the Obligations, in each case, as herein provided.


 


NOW THEREFORE, in consideration of the mutual covenants and agreement herein contained, the parties hereto covenant and agree as follows:


 


ARTICLE I 




 


Definitions


 


Section 1.01. Credit Agreement.  (a)  Capitalized terms used in this Agreement and not otherwise defined herein have the meanings specified in the Credit Agreement.  All terms defined in the New York UCC (as defined herein) and not defined in this Agreement have the meanings specified therein; the term “instrument” shall have the meaning specified in Article 9 of the New York UCC.


 


(b) The rules of construction specified in Section 1.02 of the Credit Agreement also apply to this Agreement.


 


Section 1.02. Other Defined Terms.  As used in this Agreement, the following terms shall have the meanings set forth below:


 


“Account Debtor” means any Person who is or who may become obligated to any Grantor under, with respect to or on account of an Account.


 


“Article 9 Collateral” has the meaning assigned to such term in Section 4.01.


 


“Claiming Guarantor” has the meaning assigned to such term in Section 6.02.


 


“Collateral” means Article 9 Collateral and Pledged Collateral.


 


“Administrative Agent” has the meaning assigned to such term in the preamble of this Agreement.


 


“Contributing Guarantor” has the meaning assigned to such term in Section 6.02.


 


“Copyright License” means any written agreement, now or hereafter in effect, granting any right to any third party under any copyright now or hereafter owned by any Grantor or that any 


 




  





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Grantor otherwise has the right to license, or granting any right to any Grantor under any copyright now or hereafter owned by any third party, and all rights of any Grantor under any such agreement.


 


“Copyrights” means all of the following now owned or hereafter acquired by any Grantor:  (a) all copyright rights in any work subject to the copyright laws of the United States or any other country, whether as author, assignee, transferee or otherwise; and (b) all registrations and applications for registration of any such copyright in the United States or any other country, including registrations, recordings, supplemental registrations and pending applications for registration in the United States Copyright Office, including those listed on Schedule III.


 


“Credit Agreement” has the meaning assigned to such term in the preliminary statement of this Agreement.


 


“Deposit Account Bank” has the meaning assigned to such term in Section 4.04(b).


 


“Deposit Account Control Agreement” means an agreement in a form approved by the Administrative Agent, among a Grantor, the Administrative Agent and a Deposit Account Bank.


 


“Equity Interests” means shares of capital stock, partnership interests, membership interests in a limited liability company, beneficial interests in a trust or other equity ownership interests in a Person of whatever nature and rights, warrants or options to acquire any of the foregoing.


 


“Federal Securities Laws” has the meaning assigned to such term in Section 5.04.


 


“General Intangibles” means all “general intangibles” as defined in the New York UCC, including payment intangibles, all choses in action and causes of action and all other intangible personal property of any Grantor of every kind and nature (other than Accounts) now owned or hereafter acquired by any Grantor, including corporate or other business records, indemnification claims, contract rights (including rights under leases, whether entered into as lessor or lessee, Swap Contracts, franchise agreements and other agreements) and rights to payment, Intellectual Property, software, goodwill, registrations, franchises, tax refund claims and any letter of credit, guarantee, claim, security interest or other security held by or granted to any Grantor to secure payment by an Account Debtor of any of the Accounts.


 


“Grantors” means Parent, the Borrowers and the Subsidiary Loan Parties.


 


“Guarantors” means Parent, the Borrowers and the Subsidiary Loan Parties.


 


“Intellectual Property” means all intellectual and similar property of every kind and nature now owned or hereafter acquired by any Grantor, including inventions, designs, Patents, Copyrights, Licenses, Trademarks, trade secrets, domain names, confidential or proprietary technical and business information, know-how, show-how or other data or information, software and databases and all embodiments or fixations thereof and related documentation, registrations and franchises, and all additions, improvements and accessions to, and books and records describing or used in connection with, any of the foregoing.


 


“Investment Property” means a security, whether certificated or uncertificated, security entitlement, securities account, financial asset, commodity contract or commodity account.


 


“License” means any Patent License, Trademark License, Copyright License or other license or sublicense agreement to which any Grantor is a party, other than those license or sublicense 


 




  





6











  






 


agreements (a) in existence on the date hereof and (b) entered into after the date hereof, in each case that by their terms prohibit a grant of a security interest by such Grantor as licensee thereunder; provided that (i) in the case of clause (b), such Grantor has used commercially reasonable efforts to prevent the inclusion of such a prohibition over such license or sublicense and (ii) in the case of any licenses or sublicenses excluded pursuant to clauses (a) and (b), such licenses or sublicenses, individually or in the aggregate, are not material to the business of such Grantor.  For the avoidance of doubt, any money or property received in respect of any license that is not a License shall not be excluded from the Collateral solely as a result of the exclusion of such license from the Collateral.


 


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


 


“Obligations” means all “Obligations” as defined in the Credit Agreement and includes, without limitation, (a) the due and punctual payment by the Borrowers of (i) the principal of and interest (including interest accruing during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding) on the Loans, when and as due, whether at maturity, by acceleration, upon one or more dates set for prepayment or otherwise, (ii) each payment required to be made by the Borrowers under the Credit Agreement in respect of any Letter of Credit, when and as due, including payments in respect of reimbursement of disbursements, interest and fees thereon and obligations to provide cash collateral in respect of such Letters of Credit, and (iii) all other monetary obligations of the Borrowers to any of the Secured Parties under the Credit Agreement and each of the other Loan Documents, including obligations to pay fees, expense and reimbursement obligations and indemnification obligations, whether primary, secondary, direct, contingent, fixed or otherwise (including monetary obligations incurred during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding), (b) the due and punctual performance of all other obligations of the Borrowers under or pursuant to the Credit Agreement and each of the other Loan Documents, (c) the due and punctual payment and performance of all the obligations of each other Loan Party under or pursuant to this Agreement and each of the other Loan Documents and (d) the due and punctual payment and performance of all the obligations of each other Loan Party under or pursuant to any Secured Cash Management Agreement or Secured Hedge Agreement.


 


“Patent License” means any written agreement, now or hereafter in effect, granting to any third party any right to make, use or sell any invention on which a patent, now or hereafter owned by any Grantor or that any Grantor otherwise has the right to license, is in existence, or granting to any Grantor any right to make, use or sell any invention on which a patent, now or hereafter owned by any third party, is in existence, and all rights of any Grantor under any such agreement.


 


“Patents” means all of the following now owned or hereafter acquired by any Grantor:  (a) all letters patent of the United States or the equivalent thereof in any other country, all registrations and recordings thereof, and all applications for letters patent of the United States or the equivalent thereof in any other country, including registrations, recordings and pending applications in the United States Patent and Trademark Office or any similar offices in any other country, including those listed on Schedule III; and (b) all reissues, continuations, divisions, continuations-in-part, renewals or extensions thereof, and the inventions disclosed or claimed therein, including the right to make, use and/or sell the inventions disclosed or claimed therein.


 


“Perfection Certificate” means a certificate substantially in the form of Exhibit II, completed and supplemented with the schedules and attachments contemplated thereby, and duly executed by the Loan Parties.


 




  





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“Pledged Collateral” has the meaning assigned to such term in Section 3.01.


 


“Pledged Debt Securities” has the meaning assigned to such term in Section 3.01.


 


“Pledged Securities” means any promissory notes, stock certificates or other securities now or hereafter included in the Pledged Collateral, including all certificates, instruments or other documents representing or evidencing any Pledged Collateral.


 


“Pledged Stock” has the meaning assigned to such term in Section 3.01.


 


“Security Interest” has the meaning assigned to such term in Section 4.01.


 


“Subsidiary Loan Parties” means Denny’s Holdings, DFO and each other Subsidiary of Parent from time to time party hereto.


 


“Trademark License” means any written agreement, now or hereafter in effect, granting to any third party any right to use any trademark now or hereafter owned by any Grantor or that any Grantor otherwise has the right to license, or granting to any Grantor any right to use any trademark now or hereafter owned by any third party, and all rights of any Grantor under any such agreement.


 


“Trademarks” means all of the following now owned or hereafter acquired by any Grantor: (a) all trademarks, service marks, trade names, corporate names, company names, business names, fictitious business names, trade styles, trade dress, logos, other source or business identifiers, designs and general intangibles of like nature, now existing or hereafter adopted or acquired, all registrations and recordings thereof, and all registration and recording applications filed in connection therewith, including registrations and registration applications in the United States Patent and Trademark Office or any similar offices in any State of the United States or any other country or any political subdivision thereof, and all extensions or renewals thereof, including those listed on Schedule III; (b) all goodwill associated therewith or symbolized thereby; and (c) all other assets, rights and interests that uniquely reflect or embody such goodwill.


 


“USCO” means the United States Copyright Office and any successor agency.


 


“USPTO” means the United States Patent and Trademark Office and any successor agency.


 


ARTICLE II




 


Guarantee


 


Section 2.01. Guarantee.  Each Guarantor hereby (a) ratifies, restates and confirms its unconditional guarantee of the payment and performance of the “Obligations” (as defined in the Existing Guarantee and Collateral Agreement) made in favor of the Administrative Agent, as collateral agent, for the benefit of the “Secured Parties” (as defined in the Existing Guarantee and Collateral Agreement) made pursuant to Existing Guarantee and Collateral Agreement, and (b) hereby unconditionally and irrevocably guarantees, jointly with the other Guarantors and severally, to the Administrative Agent, for the benefit of the Secured Parties, as a primary obligor and not merely as a surety, the due and punctual payment and performance of the Obligations.  Each Guarantor further agrees that the Obligations may be extended or renewed, in whole or in part, without notice to or further assent from it, and that it will remain bound upon its guarantee notwithstanding any extension or renewal of any Obligation.  Each Guarantor waives presentment to, demand of payment from and protest to the Borrowers or any other 


 




  





8











  






 


Loan Party of any of the Obligations, and also waives notice of acceptance of its guarantee and notice of protest for nonpayment.


 


Section 2.02. Guarantee of Payment.  Each Guarantor further agrees that its guarantee hereunder constitutes a guarantee of payment when due and not of collection, and waives any right to require that any resort be had by the Administrative Agent or any other Secured Party to any security held for the payment of the Obligations or to any balance of any deposit account or credit on the books of the Administrative Agent or any other Secured Party in favor of the Borrowers or any other Person.


 


Section 2.03. No Limitations, Etc.  (a) Except for termination of a Guarantor’s obligations hereunder as expressly provided in Section 7.15, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense or setoff, counterclaim, recoupment or termination whatsoever by reason of the invalidity, illegality or unenforceability of the Obligations or otherwise.  Without limiting the generality of the foregoing, the obligations of each Guarantor hereunder shall not be discharged or impaired or otherwise affected by (i) the failure of the Administrative Agent or any other Secured Party to assert any claim or demand or to exercise or enforce any right or remedy under the provisions of any Loan Document or otherwise; (ii) any rescission, waiver, amendment or modification of, or any release from any of the terms or provisions of, any Loan Document or any other agreement, including with respect to any other Guarantor under this Agreement; (iii) the failure to perfect any security interest in, or the release of, any security held by the Administrative Agent or any other Secured Party for the Obligations; (iv) any default, failure or delay, willful or otherwise, in the performance of the Obligations; (v) any other act or omission that may or might in any manner or to any extent vary the risk of any Guarantor or otherwise operate as a discharge of any Guarantor as a matter of law or equity (other than the indefeasible payment in full in cash of all the Obligations) or (vi) any law or regulation of any jurisdiction or any other event affecting any term of a guaranteed obligation.  Each Guarantor expressly authorizes the Secured Parties to take and hold security for the payment and performance of the Obligations, to exchange, waive or release any or all such security (with or without consideration), to enforce or apply such security and direct the order and manner of any sale thereof in their sole discretion or to release or substitute any one or more other guarantors or obligors upon or in respect of the Obligations, all without affecting the obligations of any Guarantor hereunder.  Anything contained in this Section 3 to the contrary notwithstanding, the obligations of any Guarantor under this Section 3 at any time shall be limited to an aggregate amount equal to the largest amount that would not render its obligations under this Section 3 subject to avoidance as a fraudulent transfer or conveyance under Section 548 of the Bankruptcy Code (Title 11, United States Code) or any comparable provisions of any similar federal or state law.


 


(b) (i)  To the fullest extent permitted by applicable law, each Guarantor waives any defense based on or arising out of any defense of the Borrowers or any other Loan Party or the unenforceability of the Obligations or any part thereof from any cause, or the cessation from any cause of the liability of the Borrowers or any other Loan Party, other than the indefeasible payment in full in cash of all the Obligations.  The Administrative Agent may, at its election, foreclose on any security held by it by one or more judicial or non-judicial sales, accept an assignment of any such security in lieu of foreclosure, compromise or adjust any part of the Obligations, make any other accommodation with the Borrowers or any other Loan Party or exercise any other right or remedy available to the Administrative Agent against the Borrowers or any other Loan Party, without affecting or impairing in any way the liability of any Guarantor hereunder except to the extent the Obligations have been indefeasibly paid in full in cash.  To the fullest extent permitted by applicable law, each Guarantor waives any defense arising out of any such election even though such election operates, pursuant to applicable law, to impair or to extinguish any right of reimbursement or subrogation or other right or remedy of such Guarantor against the Borrowers or any other Loan Party, as the case may be, or any security.


 




  





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(ii) Each Guarantor waives any right it may have to require the Administrative Agent or the Lenders to proceed against any Borrower or any other Guarantor, proceed against or exhaust any security held from any Borrower or any other Guarantor, or pursue any other remedy in their respective power to pursue, as well as any defense based on any claim that Guarantor’s obligations exceed or are more burdensome than those of any Borrower.  To the extent that the laws of the State of California may be deemed to apply to the Guarantees, the rights which each Guarantor hereby waives include all rights of subordination, reimbursement, indemnification and contribution and any other rights and defenses that are or may become available to such Guarantor by reason of Section 2787 to 2855, inclusive, of the California Civil Code; provided that these waivers shall not limit the express rights of the Guarantors that are set forth in Sections 6.01 and 6.02 hereof.


 


(iii) Each Guarantor understands and acknowledges that if the Administrative Agent forecloses judicially or non-judicially against any real property security for the Obligations, such foreclosure could impair or destroy any right or ability that any Guarantor may have to seek reimbursement, contribution or indemnification for any amounts paid by such Guarantor under its Guarantee.  To the extent that the laws of the State of California may be deemed to apply to the Guarantees, each Guarantor further understands and acknowledges that, in the absence of this waiver, such potential impairment or destruction of the Guarantor’s rights, if any, may entitle the Guarantor to assert a defense to its Guarantee based on California Code of Civil Procedure §580d as interpreted in Union Bank v. Gradsky, (1968) 265 CA 2d 40, 71 CR 64, on the grounds, among others, that a lender should be estopped from pursuing a guarantor when the lender’s election to foreclose has impaired or destroyed the guarantor’s rights of subrogation, reimbursement, contribution or indemnification rights.  By execution of this Agreement, each Guarantor intentionally, freely, irrevocably, and unconditionally: (A) waives and relinquishes that defense and agrees that such Guarantor will be liable under its Guarantee even though the Administrative Agent had foreclosed judicially or non-judicially against any real or personal property collateral for the Obligations or any of the Guarantees; and (B) agrees that such Guarantor will not assert that defense in any action or proceeding which the Administrative Agent or the Lenders may commence to enforce its Guarantee.  Without limiting the foregoing, each Guarantor waives all rights and defenses arising out of an election of remedies by the Administrative Agent or the Lenders, even though that election of remedies, such as non-judicial foreclosure with respect to security for a guaranteed obligation, has destroyed such Guarantor’s rights of subrogation and reimbursement against the principal or another Guarantor by the operation of Section 580d of the California Code of Civil Procedure.


 


(iv) To the extent that the laws of the State of California may be deemed to apply to the Guarantees, each Guarantor intentionally, freely, irrevocably and unconditionally waives and relinquishes all rights which may be available to it under any provision of California law or under any California judicial decision, including Section 580a and 726(b) of the California Code of Civil Procedure, to seek to limit the amount of any deficiency judgment or other judgment which may be obtained against such Guarantor under its Guarantee to not more than the amount by which the unpaid Obligations guaranteed hereby exceed the fair market value or fair value of any real or personal property securing said Obligations, including, without limitation, all rights to an appraisement of, judicial or other hearing on, or other determination of the value of said property.


 


(v) To the extent that the laws of the State of California may be deemed to apply to the Guarantees, and without limiting any of the other waivers and provisions set forth herein, if the debt of any Borrower or another Guarantor’s  Guarantee is secured by real property, each Guarantor hereby intentionally, freely, irrevocably and unconditionally waives all rights and defenses that Guarantor may have because the debt of such Borrower or another Guarantor’s Guarantee is secured by real property; this means, among other things: (A) the Administrative Agent and the Lenders may collect from that Guarantor without first foreclosing on any real or personal property collateral pledged by any Borrower or 


 




  





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another Guarantor; (B) the amount of the Obligations may be reduced only by the price for which that collateral is sold at the foreclosure sale, even if the collateral is determined to be worth more than the sale price; and (C) the Administrative Agent and the Lenders may collect from that Guarantor even if the Administrative Agent, by foreclosing on the real property collateral, has destroyed any right the Guarantor may have to collect from such Borrower or another Guarantor.  This is an unconditional and irrevocable waiver of any rights and defenses that such Guarantor may have under circumstances where the debt of any Borrower or another Guarantor’s Guarantee is secured by real property.  These rights and defenses include, but are not limited to, any rights or defenses based upon Section 580a, 580b, 580d or 726 of the California Code of Civil Procedure.


 


(c) Each Guarantor hereby waives diligence, promptness, presentment, demand for payment or performance and protest and notice of protest, notice of acceptance and any other notice in respect of the Obligations or any part of them, any defense which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, including, without limitation, any defense arising by reason of any disability or other defense of any Borrower or any other Guarantor, any right to require the marshalling of assets of any Borrower, any other Guarantor or any other entity or other person primarily or secondarily liable with respect to any of the Obligations, and all suretyship defenses generally.  To the fullest extent permitted by law, each Guarantor hereby expressly waives any and all rights or defenses arising by reason of (A) any “one action” or “anti-deficiency” law which would otherwise prevent the Administrative Agent or any other Secured Party from bringing any action, including any claim for a deficiency, or exercising any other right or remedy (including any right of set-off), against such Guarantor before or after the Administrative Agent’s or other Secured Party’s commencement or completion of any foreclosure action, whether judicially, by exercise of power of sale or otherwise, or (B) any other law which in any other way would otherwise require any election of remedies by the Administrative Agent or any other Secured Party.  Each Guarantor covenants that its obligations hereunder shall not be discharged, except by complete performance.


 


Section 2.04. Reinstatement.  Each Guarantor agrees that its guarantee hereunder shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of any Obligation is rescinded or must otherwise be restored by the Administrative Agent or any other Secured Party upon the bankruptcy or reorganization of the Borrowers, any other Loan Party or otherwise.


 


Section 2.05. Agreement To Pay; Subrogation.  In furtherance of the foregoing and not in limitation of any other right that the Administrative Agent or any other Secured Party has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Borrowers or any other Loan Party to pay any Obligation when and as the same shall become due, whether at maturity, by acceleration, after notice of prepayment or otherwise, each Guarantor hereby promises to and will forthwith pay, or cause to be paid, to the Administrative Agent for distribution to the applicable Secured Parties in cash the amount of such unpaid Obligation.  Upon payment by any Guarantor of any sums to the Administrative Agent as provided above, all rights of such Guarantor against the Borrowers or any other Guarantor arising as a result thereof by way of right of subrogation, contribution, reimbursement, indemnity or otherwise shall in all respects be subject to Article VI.


 


Section 2.06. Information.  Each Guarantor assumes all responsibility for being and keeping itself informed of the Borrowers’ and each other Loan Party’s financial condition and assets, and of all other circumstances bearing upon the risk of nonpayment of the Obligations and the nature, scope and extent of the risks that such Guarantor assumes and incurs hereunder, and agrees that none of the Administrative Agent or the other Secured Parties will have any duty to advise such Guarantor of information known to it or any of them regarding such circumstances or risks.


 




  





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ARTICLE III




 


Pledge of Securities


 


Section 3.01. Pledge.  Each Grantor hereby ratifies, restates and confirms its pledge and assignment of, and the grant of security interest in, all of its “Pledged Collateral” (as defined in the Existing Guarantee and Collateral Agreement) to the Administrative Agent, as collateral agent, for the benefit of the “Secured Parties” (as defined in the Existing Guarantee and Collateral Agreement) pursuant to the Existing Guarantee and Collateral Agreement, and as security for the payment and performance in full of the Obligations, each Grantor hereby assigns and pledges to the Administrative Agent, its successors and assigns, for the benefit of the Secured Parties, and hereby grants to the Administrative Agent, its successors and assigns, for the benefit of the Secured Parties, a security interest in all of such Grantor’s right, title and interest in, to and under (a) all shares of capital stock and other Equity Interests owned by it (including those listed on Schedule II) and any other Equity Interests obtained in the future by such Grantor and the certificates representing all such Equity Interests (the “Pledged Stock”); provided that the Pledged Stock shall not include (i) more than 65% of the issued and outstanding voting Equity Interests of any Foreign Subsidiary, or (ii) to the extent applicable law requires that a subsidiary of such Grantor issue directors’ qualifying shares, such qualifying shares; (b)(i) all debt securities owned by it (including those listed opposite the name of such Grantor on Schedule II), (ii) any debt securities in the future issued to such Grantor and (iii) the promissory notes and any other instruments, if any, evidencing such debt securities (the “Pledged Debt Securities”); (c) all other property that may be delivered to and held by the Administrative Agent pursuant to the terms of this Section 3.01; (d) all payments of principal or interest, dividends, cash, instruments and other property from time to time received, receivable or otherwise distributed in respect of, in exchange for or upon the conversion of, and all other Proceeds received in respect of, the securities referred to in clauses (a) and (b) above and the property referred to in clause (c) above; (e) all rights and privileges of such Grantor with respect to the securities and other property referred to in clauses (a), (b), (c) and (d) above; and (f) all Proceeds of any of the foregoing (the items referred to in clauses (a) through (f) above being collectively referred to as the “Pledged Collateral”).


 


TO HAVE AND TO HOLD the Pledged Collateral, together with all right, title, interest, powers, privileges and preferences pertaining or incidental thereto, unto the Administrative Agent, its successors and assigns, for the benefit of the Secured Parties, forever; subject, however, to the terms, covenants and conditions hereinafter set forth.


 


Section 3.02. Delivery of the Pledged Collateral.


 


(a) Each Grantor agrees promptly to deliver or cause to be delivered to the Administrative Agent certificates, instruments and other documents representing or evidencing any Pledged Securities having a value in excess of $10,000.


 


(b) Each Grantor will cause any Indebtedness for borrowed money (other than trade debt incurred in the ordinary course of business) owed to such Grantor by any Person in excess of $10,000 in principal amount to be evidenced by a duly executed promissory note that is pledged and delivered to the Administrative Agent pursuant to the terms hereof.


 


(c) Upon delivery to the Administrative Agent, (i) any Pledged Securities shall be accompanied by stock powers duly executed in blank or other instruments of transfer satisfactory to the Administrative Agent and by such other instruments and documents as the Administrative Agent may reasonably request to perfect its security interest therein and (ii) all other property composing part of the Pledged Collateral shall be accompanied by proper instruments of assignment duly executed by the 


 




  





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applicable Grantor and such other instruments or documents as the Administrative Agent may reasonably request to perfect its security interest therein.  Each delivery of Pledged Securities shall be accompanied by a schedule describing the securities, which schedule shall be attached hereto as Schedule II and made a part hereof; provided that failure to attach any such schedule hereto shall not affect the validity of such pledge of such Pledged Securities.  Each schedule so delivered shall supplement any prior schedules so delivered.


 


Section 3.03. Representations, Warranties and Covenants.  The Grantors jointly and severally represent, warrant and covenant to and with the Administrative Agent, for the benefit of the Secured Parties, that:


 


(a) Schedule II correctly sets forth the percentage of the issued and outstanding shares of each class of the Equity Interests of the issuer thereof represented by such Pledged Stock and includes all Equity Interests, debt securities and promissory notes required to be pledged by the terms of this Agreement;


 


(b) the Pledged Stock and Pledged Debt Securities have been duly and validly authorized and issued by the issuers thereof and (i) in the case of Pledged Stock issued by a corporation, are fully paid and non-assessable, (ii) in the case of Pledged Debt Securities, other than Pledged Debt Securities issued by a Loan Party or any other Subsidiary, to the knowledge of the Grantor pledging any such Pledged Debt Securities, are legal, valid and binding obligations of the issuers thereof and (iii) in the case of Pledged Debt Securities issued by a Loan Party or any other Subsidiary, are legal, valid and binding obligations of the issuer thereof;


 


(c) each Grantor is and, subject to any transfers made in compliance with the Credit Agreement, will continue to be the direct, beneficial and record owner of the Pledged Securities listed on Schedule II as owned by such Grantor and each Grantor (i) holds the Pledged Securities free and clear of all Liens, other than Liens created by this Agreement and Permitted Liens, (ii) will make no assignment, pledge, hypothecation or transfer of, or create or permit to exist any security interest in or other Lien on the Pledged Collateral, other than Liens created by this Agreement and Permitted Liens and (iii) will defend its title to or interest in the Pledged Collateral against any and all Liens (other than Liens created by this Agreement and Permitted Liens), however arising, of all Persons;


 


(d) except for restrictions and limitations imposed by the Loan Documents, the Pledged Collateral is and will continue to be freely transferable and assignable (subject to restrictions imposed under applicable law), and none of the Pledged Collateral is or will be subject to any option, right of first refusal, shareholders agreement, charter or by-law provisions or contractual restriction of any nature that might prohibit, impair, delay or otherwise affect the pledge of such Pledged Collateral hereunder, the sale or disposition thereof pursuant hereto or the exercise by the Administrative Agent of rights and remedies hereunder;


 


(e) each Grantor has the power and authority to pledge the Pledged Collateral pledged by it hereunder in the manner hereby done or contemplated;


 


(f) no consent or approval of any Governmental Authority, any securities exchange or any other Person was or is necessary for the pledge effected hereby to be valid (other than such as have been obtained and are in full force and effect);


 


(g) by virtue of the execution and delivery by the Grantors of this Agreement, when any Pledged Securities are delivered to the Administrative Agent in accordance with this Agreement, the 


 




  





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Administrative Agent will obtain a legal, valid and perfected first priority lien upon and security interest in such Pledged Securities as security for the payment and performance of the Obligations; and


 


(h) the pledge effected hereby is effective to vest in the Administrative Agent, for the benefit of the Secured Parties, the rights of the Administrative Agent in the Pledged Collateral as set forth herein.


 


Section 3.04. Certification of Limited Liability Company and Limited Partnership Interests.  Each interest in any limited liability company or limited partnership controlled by any Grantor and pledged hereunder shall be represented by a certificate, shall be a “security” within the meaning of Article 8 of the New York UCC and shall be governed by Article 8 of the New York UCC.


 


Section 3.05. Registration in Nominee Name; Denominations.  The Administrative Agent, on behalf of the Secured Parties, shall have the right (in its sole and absolute discretion) to hold the Pledged Securities in its own name as pledgee, the name of its nominee (as pledgee or as sub-agent) or the name of the applicable Grantor, endorsed or assigned in blank or in favor of the Administrative Agent.  Upon Administrative Agent’s request, each Grantor will promptly give to the Administrative Agent copies of any notices or other communications received by it with respect to Pledged Securities registered in the name of such Grantor.  The Administrative Agent shall at all times have the right to exchange the certificates representing Pledged Securities for certificates of smaller or larger denominations for any purpose consistent with this Agreement.


 


Section 3.06. Voting Rights; Dividends and Interest, etc.  (a)  Unless and until an Event of Default shall have occurred and be continuing:


 


(i) Each Grantor shall be entitled to exercise any and all voting and/or other consensual rights and powers inuring to an owner of Pledged Securities or any part thereof for any purpose consistent with the terms of this Agreement, the Credit Agreement and the other Loan Documents; provided that such rights and powers shall not be exercised in any manner that could materially and adversely affect the rights inuring to a holder of any Pledged Securities, the rights and remedies of any of the Administrative Agent or any other Secured Party under this Agreement, the Credit Agreement or any other Loan Document or the ability of the Administrative Agent or any other Secured Parties to exercise the same.


 


(ii) Subject to paragraphs (b) and (c) of this Section 3.06, the Administrative Agent authorizes each Grantor to exercise the voting and/or consensual rights and powers it is entitled to exercise pursuant to subparagraph (i) above and to receive the cash dividends it is entitled to receive pursuant to subparagraph (iii) below.


 


(iii) Each Grantor shall be entitled to receive and retain any and all dividends, interest, principal and other distributions paid on or distributed in respect of the Pledged Securities to the extent and only to the extent that such dividends, interest, principal and other distributions are permitted by, and otherwise paid or distributed in accordance with, the terms and conditions of the Credit Agreement, the other Loan Documents and applicable laws; provided that any noncash dividends, interest, principal or other distributions that would constitute Pledged Stock or Pledged Debt Securities, whether resulting from a subdivision, combination or reclassification of the outstanding Equity Interests of the issuer of any Pledged Securities or received in exchange for Pledged Securities or any part thereof, or in redemption thereof, or as a result of any merger, consolidation, acquisition or other exchange of assets to which such issuer may be a party or otherwise, shall be and become part of the Pledged Collateral, and, if received by any Grantor shall be held in trust for the benefit of the Administrative Agent (and shall not be commingled by such Grantor with any of its other funds or property but shall be 


 




  





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held separate and apart) and shall be forthwith delivered to the Administrative Agent in the same form as so received (with any necessary endorsement).


 


(b) Upon the occurrence and during the continuance of an Event of Default, all rights of any Grantor to dividends, interest, principal or other distributions that such Grantor is authorized to receive pursuant to paragraph (a)(iii) of this Section 3.06 shall cease, and all such rights shall thereupon become vested in the Administrative Agent, which shall have the sole and exclusive right and authority to receive and retain such dividends, interest, principal or other distributions.  All dividends, interest, principal or other distributions received by any Grantor contrary to the provisions of this Section 3.06 shall be held in trust for the benefit of the Administrative Agent, shall be segregated from other property or funds of such Grantor and shall be forthwith delivered to the Administrative Agent in the same form as so received (with any necessary endorsement).  Any and all money and other property paid over to or received by the Administrative Agent pursuant to the provisions of this paragraph (b) shall be retained by the Administrative Agent in an account to be established by the Administrative Agent upon receipt of such money or other property and shall be applied in accordance with the provisions of Section 5.02.


 


(c) Upon the occurrence and during the continuance of an Event of Default, all rights of any Grantor to exercise the voting and consensual rights and powers it is entitled to exercise pursuant to paragraph (a)(i) of this Section 3.06, and the authorizations of the Administrative Agent under paragraph (a)(ii) of this Section 3.06, shall cease, and all such rights shall thereupon become vested in the Administrative Agent, which shall have the sole and exclusive right and authority to exercise such voting and consensual rights and powers; provided that the Administrative Agent shall have the right, from time to time following and during the continuance of an Event of Default to permit the Grantors to exercise such rights.  After all Events of Default have been cured or waived and the Borrowers have delivered to the Administrative Agent a certificate to that effect, each Grantor will have the right to exercise the voting and consensual rights and powers that such Grantor would otherwise be entitled to exercise pursuant to the terms of paragraph (a)(i) above.


 


ARTICLE IV




 


Security Interests in Personal Property


 


Section 4.01. Security Interest.  (a) Each Grantor (x) hereby ratifies, restates and confirms the grant of a security interest in all of its “Article 9 Collateral” (as defined in the Existing Guarantee and Collateral Agreement) made in favor of the Administrative Agent, as collateral agent, for the benefit of the “Secured Parties” (as defined in the Existing Guarantee and Collateral Agreement) pursuant to the Existing Guarantee and Collateral Agreement and (y) as security for the payment and performance in full of the Obligations, hereby assigns and pledges to the Administrative Agent, its successors and assigns, for the benefit of the Secured Parties, and hereby grants to the Administrative Agent, its successors and assigns, for the benefit of the Secured Parties, a security interest (the “Security Interest”) in all right, title and interest in or to any and all of the following assets and properties 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 “Article 9 Collateral”):


 


(i) all accounts (including accounts receivable and healthcare insurance receivables);


 


(ii) all chattel paper (whether tangible or electronic);


 


(iii) all cash, money and deposit accounts;


 


(iv) all documents (including electronic documents);


 


 




  





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(v) all goods (including all equipment, fixtures and any accessions thereto);


 


(vi) all General Intangibles;


 


(vii) all instruments (including promissory notes);


 


(viii) all inventory;


 


(ix) all Investment Property;


 


(x) all insurance claims and proceeds;


 


(xi) all letter-of-credit rights;


 


(xii) all books and records pertaining to the Article 9 Collateral; and


 


(xiii) 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.


 


(b) Each Grantor hereby irrevocably authorizes the Administrative Agent at any time and from time to time to file in any relevant jurisdiction any initial financing statements (including fixture filings) with respect to the Article 9 Collateral or any part thereof and amendments thereto that contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (i) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor, (ii) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Article 9 Collateral relates and (iii) a description of collateral that describes such property in any other manner as the Administrative Agent may reasonably determine is necessary or advisable to ensure the perfection of the security interest in the Article 9 Collateral granted to the Administrative Agent, including describing such property as “all assets” or “all property”.  Each Grantor agrees to provide such information to the Administrative Agent promptly upon request.


 


Each Grantor also ratifies its authorization for the Administrative Agent to file in any relevant jurisdiction any initial financing statements or amendments thereto if filed prior to the date hereof.


 


The Administrative Agent is further authorized to file with the United States Patent and Trademark Office and the United States Copyright Office (or any successor office or any similar office in any other country) such documents as may be necessary or advisable for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Administrative Agent as secured party.


 


(c) The Security Interest is granted as security only and shall not subject the Administrative Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Article 9 Collateral.


 


Section 4.02. Representations and Warranties.  The Grantors jointly and severally represent and warrant to the Administrative Agent and the Secured Parties that:


 


 




  





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(a) Each Grantor has good and valid rights in and title to the Article 9 Collateral with respect to which it has purported to grant a Security Interest hereunder and has full power and authority to grant to the Administrative Agent the Security Interest in such Article 9 Collateral pursuant hereto and to execute, deliver and perform its obligations in accordance with the terms of this Agreement, without the consent or approval of any other person other than any consent or approval that has been obtained and is in full force and effect.


 


(b) The Perfection Certificate has been duly prepared, completed and executed and the information set forth therein, including the exact legal name of each Grantor, is correct and complete as of the Closing Date.  Uniform Commercial Code financing statements (including fixture filings, as applicable) or other appropriate filings, recordings or registrations containing a description of the Article 9 Collateral have delivered by the Grantors to the Administrative Agent and such filings, recordings or registrations are consistent with the information provided to the Administrative Agent in the Perfection Certificate delivered in connection with this Agreement and are appropriate for filing in each governmental, municipal or other office specified in Schedule 6 to the Perfection Certificate, and constitute all the filings, recordings and registrations (other than filings required to be made in the USPTO and the USCO in order to perfect the Security Interest in Article 9 Collateral consisting of United States Patents, Trademarks and Copyrights) that are necessary to publish notice of and protect the validity of and to establish a legal, valid and perfected security interest in favor of the Administrative Agent, for the benefit of the Secured Parties, in respect of all Article 9 Collateral in which the Security Interest may be perfected by filing, recording or registration in the United States (or any political subdivision thereof) and its territories and possessions.  Each Grantor represents and warrants that no further or subsequent filing, re-filing, recording, re-recording, registration or re-registration is necessary in any such jurisdiction, except as provided under applicable law with respect to the filing of continuation statements or amendments.  Each Grantor represents and warrants that a fully executed agreement in the form hereof or in a form reasonably satisfactory to the Administrative Agent containing a description of all Article 9 Collateral consisting of Intellectual Property with respect to Patents registered with the USPTO (and Patents for which registration applications are pending with the USPTO), Trademarks registered with the USPTO (and Trademarks for which registration applications are pending with the USPTO) and Copyrights registered with the USCO (and Copyrights for which registration applications are pending with the USCO) has been delivered to the Administrative Agent for recording with the USPTO and USCO, as applicable, and otherwise as may be required pursuant to the laws of any other applicable jurisdiction and reasonably requested by the Administrative Agent, to protect the validity of and to establish a legal, valid and perfected security interest in favor of the Administrative Agent, for the benefit of the Secured Parties, in respect of all Article 9 Collateral consisting of such Intellectual Property in which a security interest may be perfected by recording with the USPTO and the USCO.  Each Grantor represents and warrants that no further or subsequent filing, re-filing, recording, re-recording, registration or re-registration is necessary (other than such actions as are necessary to perfect the Security Interest with respect to any Article 9 Collateral consisting of Patents, Trademarks and Copyrights (or registration or application for registration thereof) acquired or developed after the date hereof).


 


(c) The Security Interest constitutes (i) a legal and valid security interest in all the Article 9 Collateral securing the payment and performance of the Obligations, (ii) subject to the filings described in Section 4.02(b), a perfected security interest in all Article 9 Collateral in which a security interest may be perfected by filing, recording or registering a financing statement or analogous document in the United States (or any political subdivision thereof) and its territories and possessions pursuant to the Uniform Commercial Code or other applicable law in such jurisdictions and (iii) a security interest that shall be perfected in all Article 9 Collateral in which a security interest may be perfected upon the receipt and recording of this Agreement with the USPTO and the USCO, as applicable, and otherwise as may be required pursuant to the laws of any other applicable jurisdiction.  The Security Interest is and shall be 


 




  





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prior to any other Lien on any of the Article 9 Collateral, other than Liens expressly permitted to be prior to the Security Interest pursuant to Section 7.01 of the Credit Agreement.


 


(d) The Article 9 Collateral is owned by the Grantors free and clear of any Lien, other than Liens expressly permitted pursuant to Section 7.01 of the Credit Agreement.  None of the Grantors has filed or consented to the filing of (i) any financing statement or analogous document under the Uniform Commercial Code or any other applicable laws covering any Article 9 Collateral, (ii) any assignment in which any Grantor assigns any Article 9 Collateral or any security agreement or similar instrument covering any Article 9 Collateral with the USPTO or the USCO or (iii) any assignment in which any Grantor assigns any Article 9 Collateral or any security agreement or similar instrument covering any Article 9 Collateral with any foreign governmental, municipal or other office, which financing statement or analogous document, assignment, security agreement or similar instrument is still in effect, except, in each case, for Liens expressly permitted pursuant to Section 7.01 of the Credit Agreement.


 


(e) None of the Grantors holds any commercial tort claim as of the Closing Date except as indicated on the Perfection Certificate.


 


(f) All accounts have been originated by the Grantors and all inventory has been acquired by the Grantors in the ordinary course of business.


 


Section 4.03. Covenants.


 


(a) Each Grantor agrees promptly to notify the Administrative Agent in writing of any change (i) in its corporate name, (ii) in the location of any office in which it maintains books or records relating to Article 9 Collateral owned by it or any office or facility at which Article 9 Collateral owned by it is located (including the establishment of any new such office or facility), (iii) in its identity or type of organization or corporate structure, (iv) in its Federal Taxpayer Identification Number or organizational identification number or (v) in its jurisdiction of organization.  Each Grantor agrees promptly to provide the Administrative Agent with certified organizational documents reflecting any of the changes described in clauses (i), (iii) and (v) of the immediately preceding sentence.  Each Grantor agrees not to effect or permit any change referred to in the first sentence of this paragraph (a) unless all filings have been made under the Uniform Commercial Code or otherwise that are required in order for the Administrative Agent to continue at all times following such change to have a valid, legal and perfected first priority security interest in all the Article 9 Collateral.  Each Grantor agrees promptly to notify the Administrative Agent if any material portion of the Article 9 Collateral owned or held by such Grantor is damaged or destroyed.


 


(b) Each Grantor agrees to maintain, at its own cost and expense, such complete and accurate records with respect to the Article 9 Collateral owned by it as is consistent with its current practices and in accordance with reasonably prudent and standard practices used in industries that are the same as or similar to those in which such Grantor is engaged, but in any event to include complete accounting records indicating all payments and proceeds received with respect to any part of the Article 9 Collateral, and, at such time or times as the Administrative Agent may reasonably request, promptly to prepare and deliver to the Administrative Agent a duly certified schedule or schedules in form and detail satisfactory to the Administrative Agent showing the identity, amount and location of any and all Article 9 Collateral.


 


(c) Each year, at the time of delivery of annual financial statements with respect to the preceding fiscal year pursuant to Section 6.01(a) of the Credit Agreement, the Borrowers shall deliver to the Administrative Agent a certificate executed by an officer of the Borrowers (i) setting forth the information required pursuant to Schedule 6 of the Perfection Certificate or confirming that there has 


 




  





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been no change in such information since the date of such certificate or the date of the most recent certificate delivered pursuant to this Section 4.03(c) and (ii) certifying that all Uniform Commercial Code financing statements (including fixture filings, as applicable) or other appropriate filings, recordings or registrations, including all re-filings, re-recordings and re-registrations, containing a description of the Collateral have been filed of record in each governmental, municipal or other appropriate office in each jurisdiction identified pursuant to clause (i) of this Section 4.03(c) to the extent necessary to protect and perfect the Security Interest for a period of not less than 18 months after the date of such certificate (except as noted therein with respect to any continuation statements to be filed within such period).  Each certificate delivered pursuant to this Section 4.03(c) shall identify in the format of Schedule III to this Agreement all Intellectual Property of any Grantor in existence on the date thereof and not then listed on such Schedules or previously so identified to the Administrative Agent.


 


(d) Each Grantor shall, at its own expense, take any and all actions necessary to defend title to the Article 9 Collateral against all Persons and to defend the Security Interest of the Administrative Agent in the Article 9 Collateral and the priority thereof against any Lien not expressly permitted to be prior to the Security Interest pursuant to Section 7.01 of the Credit Agreement.


 


(e) Each Grantor agrees, at its own expense, to execute, acknowledge, deliver and cause to be duly filed all such further instruments and documents and take all such actions as the Administrative Agent may from time to time reasonably request to better assure, preserve, protect and perfect the Security Interest and the rights and remedies created hereby, including the payment of any fees and taxes required in connection with the execution and delivery of this Agreement, the granting of the Security Interest and the filing of any financing statements (including fixture filings) or other documents in connection herewith or therewith.


 


Without limiting the generality of the foregoing, each Grantor hereby authorizes the Administrative Agent, with prompt notice thereof to the Grantors, to supplement this Agreement by supplementing Schedule III or adding additional schedules hereto to specifically identify any asset or item that may constitute Copyrights, Licenses, Patents or Trademarks; provided that any Grantor shall have the right, exercisable within 10 days after it has been notified by the Administrative Agent of the specific identification of such Article 9 Collateral, to advise the Administrative Agent in writing of any inaccuracy of the representations and warranties made by such Grantor hereunder with respect to such Article 9 Collateral.  Each Grantor agrees that it will use its commercially reasonable efforts to take such action as shall be necessary in order that all representations and warranties hereunder shall be true and correct with respect to such Article 9 Collateral within 30 days after the date it has been notified by the Administrative Agent of the specific identification of such Article 9 Collateral.


 


(f) The Administrative Agent and such Persons as the Administrative Agent may reasonably designate shall have the right, at the Grantors’ own cost and expense, to inspect the Article 9 Collateral, all records related thereto (and to make extracts and copies from such records) and the premises upon which any of the Article 9 Collateral is located, at reasonable times and intervals during normal business hours upon reasonable advance notice to the respective Grantor, to discuss the Grantors’ affairs with the officers of the Grantors and their independent accountants and to verify under reasonable procedures, in accordance with Section 6.10 of the Credit Agreement, the validity, amount, quality, quantity, value, condition and status of, or any other matter relating to, the Article 9 Collateral, including, in the case of Accounts or Article 9 Collateral in the possession of any third person, by contacting Account Debtors or the third person possessing such Article 9 Collateral for the purpose of making such a verification.  Subject to Section 11.07 of the Credit Agreement, the Administrative Agent shall have the right to share any information it gains from such inspection or verification with any Secured Party.


 




  





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(g) At its option, the Administrative Agent may discharge past due taxes, assessments, charges, fees, Liens, security interests or other encumbrances at any time levied or placed on the Article 9 Collateral and not permitted pursuant to Section 7.01 of the Credit Agreement, and may pay for the maintenance and preservation of the Article 9 Collateral to the extent any Grantor fails to do so as required by the Credit Agreement or this Agreement, and each Grantor jointly and severally agrees to reimburse the Administrative Agent on demand for any payment made or any expense incurred by the Administrative Agent pursuant to the foregoing authorization; provided, however, that nothing in this Section 4.03(g) shall be interpreted as excusing any Grantor from the performance of, or imposing any obligation on the Administrative Agent or any Secured Party to cure or perform, any covenants or other promises of any Grantor with respect to taxes, assessments, charges, fees, Liens, security interests or other encumbrances and maintenance as set forth herein or in the other Loan Documents.


 


(h) If at any time any Grantor shall take a security interest in any property of an account debtor or any other Person to secure payment and performance of an account, such Grantor shall promptly assign such security interest to the Administrative Agent to the extent permitted by any contracts or arrangements to which such property is subject.  Such assignment need not be filed in a public record unless such filing is necessary to continue the perfected status of the security interest against creditors of and transferees from the account debtor or other Person granting the security interest.


 


(i) Each Grantor shall remain liable to observe and perform all the conditions and obligations to be observed and performed by it under each contract, agreement or instrument relating to the Article 9 Collateral, all in accordance with the terms and conditions thereof, and each Grantor jointly and severally agrees to indemnify and hold harmless the Administrative Agent and the Secured Parties from and against any and all liability for such performance.


 


(j) None of the Grantors shall make or permit to be made an assignment, pledge or hypothecation of the Article 9 Collateral or shall grant any other Lien in respect of the Article 9 Collateral, except as expressly permitted by the Credit Agreement.  None of the Grantors shall make or permit to be made any transfer of the Article 9 Collateral and each Grantor shall remain at all times in possession of the Article 9 Collateral owned by it, except that (i) inventory may be sold in the ordinary course of business and (ii) unless and until the Administrative Agent shall notify the Grantors that an Event of Default shall have occurred and be continuing and that during the continuance thereof the Grantors shall not sell, convey, lease, assign, transfer or otherwise dispose of any Article 9 Collateral (which notice may be given by telephone if promptly confirmed in writing), the Grantors may use and dispose of the Article 9 Collateral in any lawful manner not inconsistent with the provisions of this Agreement, the Credit Agreement or any other Loan Document.  Without limiting the generality of the foregoing, each Grantor agrees that it shall not permit any inventory to be in the possession or control of any warehouseman, bailee, agent or processor at any time unless such warehouseman, bailee, agent or processor shall have been notified of the Security Interest and shall have acknowledged in writing, in form and substance reasonably satisfactory to the Administrative Agent, that such warehouseman, agent, bailee or processor holds the Inventory for the benefit of the Administrative Agent subject to the Security Interest and shall act upon the instructions of the Administrative Agent without further consent from the Grantor, and that such warehouseman, bailee, agent or processor further agrees to waive and release any Lien held by it with respect to such Inventory, whether arising by operation of law or otherwise; provided that such written acknowledgment shall not be required until the fair market value of all Inventory in such possession or under such control exceeds $1,000,000 in aggregate amount.


 


(k) None of the Grantors will, without the Administrative Agent’s prior written consent, grant any extension of the time of payment of any accounts included in the Article 9 Collateral, compromise, compound or settle the same for less than the full amount thereof, release, wholly or partly, any Person liable for the payment thereof or allow any credit or discount whatsoever thereon, other than 


 




  





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extensions, credits, discounts, compromises or settlements granted or made in the ordinary course of business and consistent with its past practices and in accordance with reasonably prudent and standard practice used in industries that are the same as or similar to those in which such Grantor is engaged.


 


(l) The Grantors, at their own expense, shall maintain or cause to be maintained insurance covering physical loss or damage to the goods, inventory and equipment in accordance with the requirements set forth in Schedule IV hereto and Section 6.07 of the Credit Agreement.  Each Grantor irrevocably makes, constitutes and appoints the Administrative Agent (and all officers, employees or agents designated by the Administrative Agent) as such Grantor’s true and lawful agent (and attorney-in-fact) for the purpose, during the continuance of an Event of Default, of making, settling and adjusting claims in respect of Article 9 Collateral under policies of insurance, endorsing the name of such Grantor on any check, draft, instrument or other item of payment for the proceeds of such policies of insurance and for making all determinations and decisions with respect thereto.  In the event that any Grantor at any time or times shall fail to obtain or maintain any of the policies of insurance required hereby or to pay any premium in whole or part relating thereto, the Administrative Agent may, without waiving or releasing any obligation or liability of the Grantors hereunder or any Event of Default, in its sole discretion, obtain and maintain such policies of insurance and pay such premium and take any other actions with respect thereto as the Administrative Agent deems advisable.  All sums disbursed by the Administrative Agent in connection with this Section 4.03(l), including reasonable attorneys’ fees, court costs, expenses and other charges relating thereto, shall be payable, upon demand, by the Grantors to the Administrative Agent and shall be additional Obligations secured hereby.


 


(m) Each Grantor shall maintain, in form and manner reasonably satisfactory to the Administrative Agent, its chattel paper and its books, records and documents evidencing or pertaining thereto with an appropriate reference to the fact that such chattel paper has been assigned to the Administrative Agent for the benefit of the Secured Parties and that the Administrative Agent has a security interest therein.


 


Section 4.04. Other Actions.  In order to further insure the attachment, perfection and priority of, and the ability of the Administrative Agent to enforce the Administrative Agent’s security interest in the Article 9 Collateral, each Grantor agrees, in each case at such Grantor’s own expense, to take the following actions with respect to the following Article 9 Collateral:


 


(a) Instruments and Tangible Chattel Paper.  If any Grantor shall at any time hold or acquire any tangible chattel paper having a value in excess of $10,000, such Grantor shall forthwith endorse, assign and deliver the same to the Administrative Agent, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time reasonably request.


 


(b) Deposit Accounts.


 


(i) (x) For deposit accounts holding in the aggregate at least 80% of all amounts held by all Grantors in all deposit accounts that are maintained as of the Closing Date, the applicable Grantors shall execute and deliver, and cause the bank with which such Grantor maintains such deposit accounts (each such bank a “Deposit Account Bank”) to execute and deliver a Deposit Account Control Agreements and (y) for any deposit account that any Grantor at any time opens after the Closing Date, such Grantor shall execute and deliver, and use its best efforts to cause the Deposit Account Bank in which any such deposit account is maintained to execute and deliver, a Deposit Account Control Agreement; provided, that no Grantor shall permit the aggregate amount held in any such deposit account opened after the Closing Date for which the applicable Deposit Account Bank has not executed and delivered a Deposit Account Control Agreement to exceed $25,000 at any one time.  The Grantors shall 


 




  





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not permit the aggregate amount held in accounts for which the Administrative Agent is not the Deposit Account Bank and for which no Deposit Account Control Agreement has been executed by a Deposit Account Bank and delivered to the Administrative Agent to exceed $500,000 at any time.  Grantors will maintain cash management systems reasonably acceptable to the Administrative Agent (it being understood that the cash management system as in effect on the Closing Date is acceptable to the Administrative Agent). 


 


(ii) Each Grantor acknowledges and agrees that (x) the funds on deposit in the deposit accounts shall continue to be collateral security for all the Obligations and (y) upon the occurrence and during the continuance of an Event of Default, upon the election of the Administrative Agent, the funds on deposit in such deposit accounts shall be applied as provided in Section 5.02.  Each Grantor irrevocably authorizes the Administrative Agent to (A) notify each Deposit Account Bank of the occurrence of an Event of Default and (B) following the occurrence of an Event of Default, at the election of the Administrative Agent, instruct each Deposit Account Bank to apply the funds on deposit in such deposit account in accordance with Section 5.02.  Each Grantor hereby agrees to irrevocably direct each Deposit Account Bank to comply with the instructions of the Administrative Agent with respect to the relevant deposit account without further consent from the Grantor or any other Person.


 


(c) Investment Property.  Except to the extent otherwise provided in Article III, if any Grantor shall at any time hold or acquire any certificated security having a value in excess of $10,000 such Grantor shall forthwith endorse, assign and deliver the same to the Administrative Agent, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specify.  If any securities now or hereafter acquired by any Grantor are uncertificated and are issued to such Grantor or its nominee directly by the issuer thereof, such Grantor shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request and option, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, either (i) cause the issuer to agree to comply with instructions from the Administrative Agent as to such securities, without further consent of any Grantor or such nominee, or (ii) arrange for the Administrative Agent to become the registered owner of the securities.  If any securities, whether certificated or uncertificated, or other investment property now or hereafter acquired by any Grantor are held by such Grantor or its nominee through a securities intermediary or commodity intermediary, such Grantor shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request and option, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, either (A) cause such securities intermediary or (as the case may be) commodity intermediary to agree to comply with entitlement orders or other instructions from the Administrative Agent to such securities intermediary as to such securities or other investment property or (as the case may be) to apply any value distributed on account of any commodity contract as directed by the Administrative Agent to such commodity intermediary, in each case without further consent of any Grantor or such nominee, or (B) in the case of Investment Property held through a securities intermediary, arrange for the Administrative Agent to become the entitlement holder with respect to such investment property, with the Grantor being permitted, only with the consent of the Administrative Agent, to exercise rights to withdraw or otherwise deal with such investment property.  The Administrative Agent agrees with each of the Grantors that the Administrative Agent shall not give any such entitlement orders or instructions or directions to any such issuer, securities intermediary or commodity intermediary, and shall not withhold its consent to the exercise of any withdrawal or dealing rights by any Grantor, unless an Event of Default has occurred and is continuing or, after giving effect to any such investment and withdrawal rights, would occur.


 


(d) Electronic Chattel Paper and Transferable Records.  If any Grantor at any time holds or acquires an interest in any electronic chattel paper or any “transferable record” having a value in excess of $10,000, as that term is defined in Section 201 of the Federal Electronic Signatures in Global and National Commerce Act or in Section 16 of the Uniform Electronic Transactions Act as in effect in any relevant jurisdiction, such Grantor shall promptly notify the Administrative Agent thereof and, at the request of the Administrative Agent, shall take such action as the Administrative Agent may reasonably request to vest in the Administrative Agent control under New York UCC Section 9-105 of such electronic chattel paper or control under Section 201 of the Federal Electronic Signatures in Global and 


 




  





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National Commerce Act or, as the case may be, Section 16 of the Uniform Electronic Transactions Act, as so in effect in such jurisdiction, of such transferable record.  The Administrative Agent agrees with such Grantor that the Administrative Agent will arrange, pursuant to procedures reasonably satisfactory to the Administrative Agent and so long as such procedures will not result in the Administrative Agent’s loss of control, for the Grantor to make alterations to the electronic chattel paper or transferable record permitted under UCC Section 9-105 or, as the case may be, Section 201 of the Federal Electronic Signatures in Global and National Commerce Act or Section 16 of the Uniform Electronic Transactions Act for a party in control to allow without loss of control, unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Grantor with respect to such electronic chattel paper or transferable record.


 


(e) Letter-of-Credit Rights.  If any Grantor is at any time a beneficiary under a letter of credit having a stated amount in excess of $10,000 now or hereafter issued in favor of such Grantor, such Grantor shall promptly notify the Administrative Agent thereof and, at the request and option of the Administrative Agent, such Grantor shall, pursuant to an agreement in form and substance satisfactory to the Administrative Agent, either (i) arrange for the issuer and any confirmer of such letter of credit to consent to an assignment to the Administrative Agent of the proceeds of any drawing under the letter of credit or (ii) arrange for the Administrative Agent to become the transferee beneficiary of the letter of credit, with the Administrative Agent agreeing, in each case, that the proceeds of any drawing under the letter of credit are to be paid to the applicable Grantor unless an Event of Default has occurred or is continuing.


 


(f) Commercial Tort Claims.  If any Grantor shall at any time hold or acquire a Commercial Tort Claim in an amount reasonably estimated to exceed $1,000,000, the Grantor shall promptly notify the Administrative Agent thereof in a writing signed by such Grantor, including a summary description of such claim, and grant to the Administrative Agent in writing a security interest therein and in the proceeds thereof, all upon the terms of this Agreement, with such writing to be in form and substance reasonably satisfactory to the Administrative Agent.


 


Section 4.05. Covenants Regarding Patent, Trademark and Copyright Collateral.


 


(a) Each Grantor agrees that it will not do any act or omit to do any act (and will exercise commercially reasonable efforts to prevent its licensees from doing any act or omitting to do any act) whereby any Patent that is material to the conduct of such Grantor’s business may become invalidated or dedicated to the public, and agrees that it shall continue to mark any products covered by a Patent with the relevant patent number as necessary and sufficient to establish and preserve its maximum rights under applicable patent laws.


 


(b) Each Grantor (either itself or through its licensees or its sublicensees) will, for each Trademark material to the conduct of such Grantor’s business, (i) maintain such Trademark in full force free from any claim of abandonment or invalidity for non-use, (ii) maintain the quality of products and services offered under such Trademark, (iii) display such Trademark with notice of Federal or foreign registration to the extent necessary and sufficient to establish and preserve its maximum rights under applicable law and (iv) not knowingly use or knowingly permit the use of such Trademark in violation of any third-party rights.


 




  





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(c) Each Grantor (either itself or through its licensees or its sublicensees) will, for each work covered by a Copyright material to the conduct of such Grantor’s business, continue to publish, reproduce, display, adopt and distribute the work with appropriate copyright notice as necessary and sufficient to establish and preserve its maximum rights under applicable copyright laws.


 


(d) Each Grantor shall notify the Administrative Agent immediately if it knows or has reason to know that any Patent, Trademark or Copyright material to the conduct of such Grantor’s business may become abandoned, lost or dedicated to the public, or of any materially adverse determination or development (including the institution of, or any such determination or development in, any proceeding in the USPTO, USCO or any court or similar office of any country) regarding such Grantor’s ownership of any such Patent, Trademark or Copyright, its right to register the same or its right to keep and maintain the same.


 


(e) In no event shall any Grantor, either itself or through any agent, employee, licensee or designee, file an application for any Patent or for the registration of any Trademark or Copyright with the USPTO, the USCO or any office or agency in any political subdivision of the United States or in any other country or any political subdivision thereof, unless it promptly informs the Administrative Agent thereof, and, upon the request of the Administrative Agent, executes and delivers any and all agreements, instruments, documents and papers as the Administrative Agent may reasonably request to evidence the Administrative Agent’s security interest in such Patent, Trademark or Copyright, and each Grantor hereby appoints the Administrative Agent as its attorney-in-fact to execute and file such writings for the foregoing purposes, all acts of such attorney being hereby ratified and confirmed; such power, being coupled with an interest, is irrevocable.


 


(f) Each Grantor will take all necessary steps that are consistent with the practice in any proceeding before the USPTO, the USCO or any office or agency in any political subdivision of the United States or in any other country or any political subdivision thereof to maintain and pursue each material application relating to the Patents, Trademarks and/or Copyrights (and to obtain the relevant grant or registration) and to maintain each issued Patent and each registration of the Trademarks and Copyrights that is material to the conduct of such Grantor’s business, including timely filings of applications for renewal, affidavits of use, affidavits of incontestability and payment of maintenance fees, and, if consistent with good business judgment, to initiate opposition, interference and cancellation proceedings against third parties.


 


(g) In the event that any Grantor has reason to believe that any Article 9 Collateral consisting of a material Patent, Trademark or Copyright has been or is about to be infringed, misappropriated or diluted by a third party, such Grantor shall promptly notify the Administrative Agent and shall, if consistent with good business judgment and if it is reasonably determined by the Grantor that there is a potential risk of material damage to the Patent, Trademark or Copyright, promptly sue for infringement, misappropriation or dilution and to recover any and all damages for such infringement, misappropriation or dilution, and take such other actions as are appropriate under the circumstances to protect such Article 9 Collateral.


 


(h) Upon and during the continuance of an Event of Default, each Grantor shall use commercially reasonable efforts to obtain all requisite consents or approvals from the licensor under each Copyright License, Patent License or Trademark License to effect the assignment of all such Grantor’s right, title and interest thereunder to the Administrative Agent or its designee.


 




  





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ARTICLE V




 


Remedies


 


Section 5.01. Remedies Upon Default.  Upon the occurrence and during the continuance of an Event of Default, each Grantor agrees to deliver each item of Collateral to the Administrative Agent on demand, and it is agreed that the Administrative Agent shall have the right to take any of or all the following actions at the same or different times: (a) with respect to any Article 9 Collateral consisting of Intellectual Property, on demand, to cause the Security Interest to become an assignment, transfer and conveyance of any of or all such Article 9 Collateral by the applicable Grantors to the Administrative Agent or to license or sublicense, whether general, special or otherwise, and whether on an exclusive or nonexclusive basis, any such Article 9 Collateral throughout the world on such terms and conditions and in such manner as the Administrative Agent shall determine (other than in violation of any then-existing licensing arrangements to the extent that waivers cannot be obtained); and (b) with or without legal process and with or without prior notice or demand for performance, to take possession of the Article 9 Collateral and without liability for trespass to enter any premises where the Article 9 Collateral may be located for the purpose of taking possession of or removing the Article 9 Collateral and, generally, to exercise any and all rights afforded to a secured party under the Uniform Commercial Code or other applicable law.  Without limiting the generality of the foregoing, each Grantor agrees that the Administrative Agent shall have the right, subject to the mandatory requirements of applicable law, to sell or otherwise dispose of all or any part of the Collateral at a public or private sale or at any broker’s board or on any securities exchange, for cash, upon credit or for future delivery as the Administrative Agent shall deem appropriate.  The Administrative Agent shall be authorized at any such sale of securities (if it deems it advisable to do so) to restrict the prospective bidders or purchasers to Persons who will represent and agree that they are purchasing the Collateral for their own account for investment and not with a view to the distribution or sale thereof, and upon consummation of any such sale of Collateral the Administrative Agent shall have the right to assign, transfer and deliver to the purchaser or purchasers thereof the Collateral so sold.  Each such purchaser at any such sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantor, and each Grantor hereby waives and releases (to the extent permitted by law) all rights of redemption, stay, valuation and appraisal that such Grantor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.


 


The Administrative Agent shall give the applicable Grantors 10 days’ written notice (which each Grantor agrees is reasonable notice within the meaning of Section 9-611 of the New York UCC or its equivalent in other jurisdictions) of the Administrative Agent’s intention to make any sale of Collateral.  Such notice, in the case of a public sale, shall state the time and place for such sale and, in the case of a sale at a broker’s board or on a securities exchange, shall state the board or exchange at which such sale is to be made and the day on which the Collateral, or portion thereof, will first be offered for sale at such board or exchange.  Any such public sale shall be held at such time or times within ordinary business hours and at such place or places as the Administrative Agent may fix and state in the notice (if any) of such sale.  At any such sale, the Collateral, or portion thereof, to be sold may be sold in one lot as an entirety or in separate parcels, as the Administrative Agent may (in its sole and absolute discretion) determine.  The Administrative Agent shall not be obligated to make any sale of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale of such Collateral shall have been given.  The Administrative Agent may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned.  In case any sale of all or any part of the Collateral is made on credit or for future delivery, the Collateral so sold may be retained by the Administrative Agent until the sale price is paid by the purchaser or purchasers thereof, but the Administrative Agent shall not incur any liability in case any such purchaser 


 




  





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or purchasers shall fail to take up and pay for the Collateral so sold and, in case of any such failure, such Collateral may be sold again upon like notice.  At any public (or, to the extent permitted by law, private) sale made pursuant to this Section 5.01, any Secured Party may bid for or purchase for cash, free (to the extent permitted by law) from any right of redemption, stay, valuation or appraisal on the part of any Grantor (all said rights being also hereby waived and released to the extent permitted by law), the Collateral or any part thereof offered for sale and such Secured Party may, upon compliance with the terms of sale, hold, retain and dispose of such property without further accountability to any Grantor therefor.  For purposes hereof, a written agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof; the Administrative Agent shall be free to carry out such sale pursuant to such agreement and no Grantor shall be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Administrative Agent shall have entered into such an agreement all Events of Default shall have been remedied and the Obligations paid in full.  As an alternative to exercising the power of sale herein conferred upon it, the Administrative Agent may proceed by a suit or suits at law or in equity to foreclose this Agreement and to sell the Collateral or any portion thereof pursuant to a judgment or decree of a court or courts having competent jurisdiction or pursuant to a proceeding by a court-appointed receiver.  Any sale pursuant to the provisions of this Section 5.01 shall be deemed to conform to the commercially reasonable standards as provided in Section 9-610(b) of the New York UCC or its equivalent in other jurisdictions.


 


Section 5.02. Application of Proceeds.  The Administrative Agent shall apply the proceeds of any collection or sale of Collateral, as well as any Collateral consisting of cash, that it has obtained as provided in Section 8.03 of the Credit Agreement.  The Administrative Agent shall have absolute discretion as to the time of application of any such proceeds, moneys or balances in accordance with this Agreement.  Upon any sale of Collateral by the Administrative Agent (including pursuant to a power of sale granted by statute or under a judicial proceeding), the receipt of the purchase money by the Administrative Agent or of the officer making the sale shall be a sufficient discharge to the purchaser or purchasers of the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid over to the Administrative Agent or such officer or be answerable in any way for the misapplication thereof.


 


Section 5.03. Grant of License to Use Intellectual Property.  For the purpose of enabling the Administrative Agent to exercise rights and remedies under this Agreement at such time as the Administrative Agent shall be lawfully entitled to exercise such rights and remedies, each Grantor hereby grants to the Administrative Agent an irrevocable, nonexclusive license (exercisable without payment of royalty or other compensation to the Grantors) to use, license or sublicense any of the Article 9 Collateral consisting of Intellectual Property now owned or hereafter acquired by such Grantor, wherever the same may be located, and including in such license reasonable access to all media in which any of the licensed items may be recorded or stored and to all computer software and programs used for the compilation or printout thereof.  The use of such license by the Administrative Agent may be exercised, at the option of the Administrative Agent and, upon the occurrence and during the continuation of an Event of Default; provided that any license, sublicense or other transaction entered into by the Administrative Agent in accordance herewith shall be binding upon the Grantors notwithstanding any subsequent cure of an Event of Default.


 


Section 5.04. Securities Act, etc.  In view of the position of the Grantors in relation to the Pledged Collateral, or because of other current or future circumstances, a question may arise under the Securities Act of 1933, as now or hereafter in effect, or any similar statute hereafter enacted analogous in purpose or effect (such Act and any such similar statute as from time to time in effect being called the “Federal Securities Laws”) with respect to any disposition of the Pledged Collateral permitted hereunder.  Each Grantor understands that compliance with the Federal Securities Laws might very strictly limit the course of conduct of the Administrative Agent if the Administrative Agent were to attempt to dispose of 


 




  





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all or any part of the Pledged Collateral, and might also limit the extent to which or the manner in which any subsequent transferee of any Pledged Collateral could dispose of the same.  Similarly, there may be other legal restrictions or limitations affecting the Administrative Agent in any attempt to dispose of all or part of the Pledged Collateral under applicable Blue Sky or other state securities laws or similar laws analogous in purpose or effect.  Each Grantor recognizes that in light of such restrictions and limitations the Administrative Agent may, with respect to any sale of the Pledged Collateral, limit the purchasers to those who will agree, among other things, to acquire such Pledged Collateral for their own account, for investment, and not with a view to the distribution or resale thereof.  Each Grantor acknowledges and agrees that in light of such restrictions and limitations, the Administrative Agent, in its sole and absolute discretion, (a) may proceed to make such a sale whether or not a registration statement for the purpose of registering such Pledged Collateral or part thereof shall have been filed under the Federal Securities Laws and (b) may approach and negotiate with a single potential purchaser to effect such sale.  Each Grantor acknowledges and agrees that any such sale might result in prices and other terms less favorable to the seller than if such sale were a public sale without such restrictions.  In the event of any such sale, the Administrative Agent shall incur no responsibility or liability for selling all or any part of the Pledged Collateral at a price that the Administrative Agent, in its sole and absolute discretion, may in good faith deem reasonable under the circumstances, notwithstanding the possibility that a substantially higher price might have been realized if the sale were deferred until after registration as aforesaid or if more than a single purchaser were approached.  The provisions of this Section 5.04 will apply notwithstanding the existence of a public or private market upon which the quotations or sales prices may exceed substantially the price at which the Administrative Agent sells.


 


ARTICLE VI




 


Indemnity, Subrogation and Subordination


 


Section 6.01. Indemnity and Subrogation.  In addition to all such rights of indemnity and subrogation as the Guarantors may have under applicable law (but subject to Section 6.03), the Borrowers agree that (a) in the event a payment shall be made by any Guarantor under this Agreement in respect of any Obligation, the Borrowers shall, jointly and severally, indemnify such Guarantor for the full amount of such payment and such Guarantor shall be subrogated to the rights of the Person to whom such payment shall have been made to the extent of such payment and (b) in the event any assets of any Guarantor shall be sold pursuant to this Agreement or any other Security Document to satisfy in whole or in part an Obligation, the Borrowers shall, jointly and severally, indemnify such Guarantor in an amount equal to the greater of the book value or the fair market value (as reasonably determined by the Borrowers) of the assets so sold.


 


Section 6.02. Contribution and Subrogation.  Each Guarantor (a “Contributing Guarantor”) agrees (subject to Section 6.03) that, in the event a payment shall be made by any other Guarantor hereunder in respect of any Obligation or assets of any other Guarantor shall be sold pursuant to any Loan Document to satisfy any Obligation owed to any Secured Party and such other Guarantor (the “Claiming Guarantor”) shall not have been fully indemnified by the Borrowers as provided in Section 6.01, the Contributing Guarantor shall indemnify the Claiming Guarantor in an amount equal to the amount of such payment or the greater of the book value or the fair market value of such assets, as the case may be, in each case multiplied by a fraction of which the numerator shall be the net worth of the Contributing Guarantor on the date hereof and the denominator shall be the aggregate net worth of all the Guarantors on the date hereof (or, in the case of any Guarantor becoming a party hereto pursuant to Section 7.16, the date of the supplement hereto executed and delivered by such Guarantor).  Any Contributing Guarantor making any payment to a Claiming Guarantor pursuant to this Section 6.02 shall be subrogated to the rights of such Claiming Guarantor under Section 6.01 to the extent of such payment.


 




  





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Section 6.03. Subordination.


 


(a) Notwithstanding any provision of this Agreement to the contrary, all rights of the Guarantors under Sections 6.01 and 6.02 and all other rights of indemnity, contribution or subrogation under applicable law or otherwise shall be fully subordinated to the indefeasible payment in full in cash of the Obligations.  No failure on the part of any Borrower or any Guarantor to make the payments required by Sections 6.01 and 6.02 (or any other payments required under applicable law or otherwise) shall in any respect limit the obligations and liabilities of any Guarantor with respect to its obligations hereunder, and each Guarantor shall remain liable for the full amount of the obligations of such Guarantor hereunder.


 


(b) Each Guarantor hereby agrees that all Indebtedness and other monetary obligations owed by it to any other Guarantor or any Subsidiary shall be fully subordinated to the indefeasible payment in full in cash of the Obligations.


 


ARTICLE VII




 


Miscellaneous


 


Section 7.01. Notices.  All communications and notices hereunder shall (except as otherwise expressly permitted herein) be given as provided in Section 11.02 of the Credit Agreement.


 


Section 7.02. Security Interest Absolute.  All rights of the Administrative Agent hereunder, the Security Interest, the security interest in the Pledged Collateral and all obligations of each Grantor and Guarantor hereunder shall be absolute and unconditional irrespective of (a) any lack of validity or enforceability of the Credit Agreement, any other Loan Document, any agreement with respect to any of the Obligations or any other agreement or instrument relating to any of the foregoing, (b) any change in the time, manner or place of payment of, or in any other term of, all or any of the Obligations, or any other amendment or waiver of or any consent to any departure from the Credit Agreement, any other Loan Document or any other agreement or instrument, (c) any exchange, release or non-perfection of any Lien on other collateral, or any release or amendment or waiver of or consent under or departure from any guarantee, securing or guaranteeing all or any of the Obligations, (d) any law or regulation of any jurisdiction or any other event affecting any term of a guaranteed obligation or (e) any other circumstance that might otherwise constitute a defense available to, or a discharge of, any Grantor or Guarantor in respect of the Obligations or this Agreement.


 


Section 7.03. Survival of Agreement.  All covenants, agreements, representations and warranties made by the Loan Parties in the Loan Documents and in the certificates or other instruments prepared or delivered in connection with or pursuant to this Agreement or any other Loan Document shall be considered to have been relied upon by the Lenders and shall survive the execution and delivery of the Loan Documents and the making of any Loans and the issuance of any Letters of Credit, regardless of any investigation made by any Lender or on its behalf and notwithstanding that the Administrative Agent or any Lender or L/C Issuer may have had notice or knowledge of any Default or incorrect representation or warranty at the time any credit is extended under the Credit Agreement, and shall continue in full force and effect as long as the principal of or any accrued interest on any Loan or any fee or any other amount payable under any Loan Document is outstanding and unpaid or any Letter of Credit is outstanding and so long as the Commitments have not expired or terminated.


 


Section 7.04. Binding Effect; Several Agreement.  This Agreement shall become effective as to any Loan Party when a counterpart hereof executed on behalf of such Loan Party shall have been delivered to the Administrative Agent and a counterpart hereof shall have been executed on 


 




  





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behalf of the Administrative Agent, and thereafter shall be binding upon such Loan Party and the Administrative Agent and their respective permitted successors and assigns, and shall inure to the benefit of such Loan Party, the Administrative Agent and the other Secured Parties and their respective permitted successors and assigns, except that no Loan Party shall have the right to assign or transfer its rights or obligations hereunder or any interest herein or in the Collateral (and any such assignment or transfer shall be void) except as expressly contemplated by this Agreement or the Credit Agreement.  This Agreement shall be construed as a separate agreement with respect to each Loan Party and may be amended, modified, supplemented, waived or released with respect to any Loan Party without the approval of any other Loan Party and without affecting the obligations of any other Loan Party hereunder.


 


Section 7.05. Successors and Assigns.  Whenever in this Agreement any of the parties hereto is referred to, such reference shall be deemed to include the permitted successors and assigns of such party; and all covenants, promises and agreements by or on behalf of any Grantor or the Administrative Agent that are contained in this Agreement shall bind and inure to the benefit of their respective permitted successors and assigns.  No Guarantor or Grantor may assign any of its rights or obligations hereunder without the written consent of the Administrative Agent.


 


Section 7.06. Administrative Agent’s Fees and Expenses; Indemnification.


 


(a) The parties hereto agree that the Administrative Agent shall be entitled to reimbursement of its expenses incurred hereunder as provided in Section 11.04 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 Administrative Agent and the other Indemnitees (as defined in Section 11.04 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 willful 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 7.06 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 Administrative Agent or any other Secured Party.  All amounts due under this Section 7.06 shall be payable on written demand therefor.


 


Section 7.07. Administrative Agent Appointed Attorney-in-Fact.  Each Grantor hereby appoints the Administrative Agent the attorney-in-fact of such Grantor for the purpose of carrying out the provisions of this Agreement and taking any action and executing any instrument that the Administrative Agent may deem necessary or advisable to accomplish the purposes hereof, which appointment is irrevocable and coupled with an interest.  Without limiting the generality of the foregoing, the Administrative Agent shall have the right, upon the occurrence and during the continuance of an Event of Default, with full power of substitution either in the Administrative Agent’s name or in the name of such Grantor: (a) to receive, endorse, assign and/or deliver any and all notes, acceptances, checks, drafts, money orders or other evidences of payment relating to the Collateral or any part thereof; (b) to demand, 


 




  





29











  






 


collect, receive payment of, give receipt for and give discharges and releases of all or any of the Collateral; (c) to ask for, demand, sue for, collect, receive and give acquittance for any and all moneys due or to become due under and by virtue of any Collateral; (d) to sign the name of any Grantor on any invoice or bill of lading relating to any of the Collateral; (e) to send verifications of Accounts to any Account Debtor; (f) to commence and prosecute any and all suits, actions or proceedings at law or in equity in any court of competent jurisdiction to collect or otherwise realize on all or any of the Collateral or to enforce any rights in respect of any Collateral; (g) to settle, compromise, compound, adjust or defend any actions, suits or proceedings relating to all or any of the Collateral; (h) to notify, or to require any Grantor to notify, Account Debtors to make payment directly to the Administrative Agent; and (i) to use, sell, assign, transfer, pledge, make any agreement with respect to or otherwise deal with all or any of the Collateral, and to do all other acts and things necessary to carry out the purposes of this Agreement, as fully and completely as though the Administrative Agent were the absolute owner of the Collateral for all purposes; provided, that nothing herein contained shall be construed as requiring or obligating the Administrative Agent to make any commitment or to make any inquiry as to the nature or sufficiency of any payment received by the Administrative Agent, or to present or file any claim or notice, or to take any action with respect to the Collateral or any part thereof or the moneys due or to become due in respect thereof or any property covered thereby.  The Administrative Agent and the other Secured Parties shall be accountable only for amounts actually received as a result of the exercise of the powers granted to them herein, and neither they nor 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.


 


Section 7.08. GOVERNING LAW.  THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, (WITHOUT GIVING EFFECT TO ANY CHOICE OR CONFLICT OF LAW PROVISION OR RULE THAT WOULD CAUSE THE APPLICATION OF THE DOMESTIC SUBSTANTIVE LAWS OF ANY OTHER STATE).


 


Section 7.09. Waivers; Amendment.


 


(a) No failure or delay by the Administrative Agent or any other Secured Party in exercising any right, power or remedy hereunder or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or remedy, or any abandonment or discontinuance of steps to enforce such a right, power or remedy, preclude any other or further exercise thereof or the exercise of any other right, power or remedy.  The rights, powers and remedies of the Administrative Agent and the other Secured Parties hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights, powers or remedies that they would otherwise have.  No waiver of any provision of this Agreement or consent to any departure by any Loan Party therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) of this Section 7.09, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given.  Without limiting the generality of the foregoing, the making of a Loan or the issuance of a Letter of Credit shall not be construed as a waiver of any Default, regardless of whether the Administrative Agent or any other Secured Party may have had notice or knowledge of such Default at the time.  No notice or demand on any Loan Party in any case shall entitle any Loan Party to any other or further notice or demand in similar or other circumstances.


 


(b) Neither this Agreement nor any provision hereof may be waived, amended or modified except pursuant to an agreement or agreements in writing entered into by the Administrative Agent and the Loan Party or Loan Parties with respect to which such waiver, amendment or modification is to apply, subject to any consent required in accordance with Section 11.03 of the Credit Agreement.


 




  





30











  






 


Section 7.10. WAIVER OF JURY TRIAL.  EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY).  EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.


 


Section 7.11. Severability.  If any provision of this Agreement is held to be invalid, illegal or unenforceable (a) the legality, validity and enforceability of the remaining provisions of this Agreement shall not be affected or impaired thereby and (b) the parties shall endeavor in good faith negotiations to replace the illegal, invalid or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the illegal, invalid or unenforceable provisions.  The invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.


 


Section 7.12. Counterparts.  This Agreement may be executed in counterparts (and by different parties hereto on different counterparts), each of which shall constitute an original but all of which, when taken together, shall constitute a single contract, and shall become effective as provided in Section 7.04.  Delivery of an executed signature page to this Agreement by facsimile or electronic transmission shall be effective as delivery of a manually signed counterpart of this Agreement.


 


Section 7.13. Headings.  Article and Section headings used herein are for the purpose of reference only, are not part of this Agreement and are not to affect the construction of, or to be taken into consideration in interpreting, this Agreement.


 


Section 7.14. Jurisdiction; Consent to Service of Process.


 


(a) Each of the Loan Parties hereby irrevocably and unconditionally submits, for itself and its property, to the nonexclusive jurisdiction of the courts of the State of New York sitting in New York County and of the United States District Court of the Southern District of New York, and any appellate court from any thereof, in any action or proceeding arising out of or relating to this Agreement or any other Loan Document, or for recognition or enforcement of any judgment, and each of the parties hereto hereby irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding may be heard and determined in such New York State court or, to the extent permitted by law, such Federal court.  Each of the parties hereto agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.  Nothing in this Agreement or any other Loan Document shall affect any right that the Administrative Agent or any other Secured Party may otherwise have to bring any action or proceeding relating to this Agreement or any other Loan Document against any Grantor or Guarantor, or its properties, in the courts of any jurisdiction.


 


(b) Each of the Loan Parties hereby irrevocably and unconditionally waives, to the fullest extent permitted by law, any objection that it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Agreement or any other Loan Document in any court referred to in paragraph (a) of this Section 7.14.  Each of the parties hereto hereby irrevocably 


 




  





31











  






 


waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court.


 


(c) Each party to this Agreement irrevocably consents to service of process in the manner provided for notices in Section 11.02 of the Credit Agreement.  Nothing in this Agreement will affect the right of any party to this Agreement to serve process in any other manner permitted by applicable law.


 


Section 7.15. Termination or Release.


 


(a) This Agreement, the guarantees made herein, the Security Interest and all other security interests granted hereby shall terminate when the Obligations have been indefeasibly paid in full and the Aggregate Commitments have been terminated, the LC Obligations have been reduced to zero or Cash Collateralized in a manner acceptable to the Administrative Agent and the L/C Issuer and the L/C Issuer has no further obligations to issue Letters of Credit under the Credit Agreement.


 


(b) A Subsidiary Loan Party shall automatically be released from its obligations hereunder and the security interests in the Collateral of such Subsidiary Loan Party shall be automatically released upon the consummation of any transaction permitted by the Credit Agreement as a result of which such Subsidiary Loan Party ceases to be a Subsidiary; provided that the Required Lenders shall have consented to such transaction (to the extent required by the Credit Agreement) and the terms of such consent did not provide otherwise.


 


(c) Upon any sale or other transfer by any Grantor of any Collateral that is permitted under the Credit Agreement to any Person that is not a Grantor, or upon the effectiveness of any written consent to the release of the security interest granted hereby in any Collateral pursuant to Section 11.01 of the Credit Agreement, the security interest in such Collateral shall be automatically released; provided that the Proceeds resulting from such sale or other transfer shall not be released and shall be included in the Collateral.


 


(d) In connection with any termination or release pursuant to paragraph (a), (b) or (c) of this section, the Administrative Agent shall execute and deliver to any Grantor at such Grantor’s expense all documents that such Grantor shall reasonably request to evidence such termination or release.  Any execution and delivery of documents pursuant to this section shall be without recourse to or warranty by the Administrative Agent.


 


Section 7.16. Additional Subsidiaries.  Pursuant to Section 6.12 of the Credit Agreement, each Subsidiary of a Loan Party that was not in existence or not a Subsidiary on the date of the Credit Agreement is required to enter into this Agreement upon becoming such a Subsidiary.  Upon execution and delivery by the Administrative Agent and a Subsidiary of an instrument in the form of Exhibit I hereto, such Subsidiary shall become a party hereto with the same force and effect as if originally named as a party hereto.  The execution and delivery of any such instrument shall not require the consent of any other Loan Party hereunder.  The rights and obligations of each Loan Party hereunder shall remain in full force and effect notwithstanding the addition of any new Loan Party as a party to this Agreement.


 


Section 7.17. Right of Setoff.  Subject to Section 11.08 of the Credit Agreement, if an Event of Default shall have occurred and be continuing, each Lender, the L/C Issuer and each of their Affiliates is hereby authorized at any time and from time to time, to the fullest extent permitted by applicable law, to set off and apply any and all deposits (general or special, time or demand, provisional or final, in whatever currency) at any time held and other obligations (in whatever currency) at any time owing by such Lender, the L/C Issuer or any such Affiliate to or for the credit or the account of any 


 




  





32











  






 


Borrower or any other Loan Party against any and all of the obligations of such Borrower or such Loan Party now or hereafter existing under this Agreement or any other Loan Document to such Lender or L/C Issuer, irrespective of whether or not such Lender or such L/C Issuer shall have made any demand under this Agreement and although such obligations may be contingent or unmatured.


 


Section 7.18. Amendment and Restatement.  This Agreement amends, restates, supersedes, and replaces in its entirety the Existing Guarantee and Collateral Agreement.   The (x) the guarantee made by the Guarantors under the Existing Guarantee and Collateral Agreement and (y) the security interests granted by each Grantor to the Administrative Agent in the “Collateral” and the pledge and assignment of such the “Collateral” under as defined in the Existing Guarantee and Collateral Agreement, in each case, continues without interruption under this Agreement and such guarantee, security interests, pledges and assignments are hereby ratified and confirmed in all respects.  Nothing contained herein shall be construed as a novation of the obligations outstanding under the Existing Guarantee and Collateral Agreement, which shall remain in full force and effect, except as modified hereby.  Nothing express or implied in this Agreement shall be construed as a release or discharge of the Grantor or Guarantor under the Existing Guarantee and Collateral Agreement.


 







[Signature Page Follows]




















  





33











  













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


 


DENNY’S, INC.












By:      /s/  Timothy E. Flemming                                                         


Name: Timothy E. Flemming


Title:   Senior Vice President












 







DENNY’S REALTY, LLC


By:  DFO, LLC, its Sole Member


By:  Denny’s Inc., its Sole Member


 


By:      /s/  Timothy E. Flemming                            


Name: Timothy E. Flemming


Title:   Senior Vice President














DENNY’S CORPORATION












By:       Timothy E. Flemming                            


Name: Timothy E. Flemming


Title:   Senior Vice President















DENNY’S HOLDINGS, INC.












By:      /s/  Samuel S. Sontag         


Name: Samuel S. Sontag


Title:   President



















DFO, LLC


By:  Denny’s Inc., its Sole Member


 


By        /s/  Timothy E. Flemming                            


Name: Timothy E. Flemming


Title:   Senior Vice President




















  





  











  








 





 


 




  





  











  








 


 


 


 




  





  











  








 


BANK OF AMERICA, N.A., as Administrative 


Agent,







By:      /s/  William A. Cessna      


Name: William A. Cessna


Title:    Vice President















  





  











  








 





 




 




 















  





  











  



Schedule I to


 the Guarantee and


Collateral Agreement















Subsidiary Loan Parties


 








Denny’s Holdings, Inc.


Denny’s, Inc.


DFO, LLC


Denny’s Realty, LLC






















  





  











  













Schedule II to


the Guarantee and


Collateral Agreement


 


EQUITY INTERESTS


 




	
Name

	
State of Incorporation

	
Owner / % of Ownership Interest


	
Denny’s Corporation

	
Delaware

	
Public 100%


	
Denny’s Holdings, Inc.

	
New York

	
Denny’s Corporation/100%


	
Advantica Systems, Inc.

	
Delaware

	
Denny’s Corporation/100%


	
Flagstar Holdings, Inc.

	
New York

	
Denny’s Corporation/100%


	
Denny’s, Inc.

	
California

	
Denny’s Holdings, Inc./100%


	
La Mirada Enterprises No. 1, LLC

	
Texas

	
Denny’s, Inc./100%


	
DFO, LLC

	
Delaware

	
Denny’s, Inc./100%


	
Denny’s Realty, LLC

	
Delaware

	
DFO LLC/100%


	
Dennyven #1

	  	
Denny’s Corporation, General Partner, Partnership interest at 50%


	
K-II Telecommunications

	  	
Denny’s Corporation, General Partner, Partnership interest at 3.51%


	
New York Equity Fund 1988 L.P.

	  	
Denny’s Corporation (formerly, Advantica Restaurant Group, Inc.), Limited Partner, Partnership interest at 2.20%














DEBT SECURITIES


 




	  	  	  	
Interest

	
Note

	
Interst

	
Note

	
Maturity

	
Note

	
Payment


	
Unit

	
Payee

	
Type

	
Rate

	
Balance

	
Balance

	
Date

	
Date

	
Payment

	
Frequency


	
7993

	
China World

	
Out of Chain

	
8%

	
131,352.06

	
875.68

	
7/16/2009

	
8/1/2012

	
5,940.70

	
Monthly


	
7997

	
Achintya Dube

	
Franchisee

	
9%

	
194,474.14

	
-

	
6/17/2010

	
6/14/2012

	
955.90

	
Weekly


	
8008

	
Syed Ahmad

	
Franchisee

	
9%

	
168,399.06

	
-

	
2/12/2009

	
2/10/2011

	
6,871.06

	
Weekly


	
8079

	
Mija Landenberger(Land Park)

	
Franchisee

	
9%

	
175,891.28

	
-

	
6/26/2008

	
6/20/2012

	
2,000.00

	
Weekly


	
8021

	
Anil Yadav(Central Valley)

	
Franchisee

	
9%

	
1,212,332.69

	
-

	
3/26/2008

	
5/1/2013

	
9,732.78

	
Weekly


	
8115

	
Glenn Beattie

	
Franchisee

	
9%

	
1,036,138.42

	
-

	
2/5/2009

	
12/29/2011

	
4,085.35

	
Weekly



























  





  











  













Schedule III to


Guarantee and


Collateral Agreement


 


OWNED COPYRIGHTS


 


None










  





  











  













Schedule III


to Guarantee and


Collateral Agreement


 


OWNED PATENTS


 


None


 





  





  











  













Schedule III


to Guarantee and


Collateral Agreement


 


OWNED TRADEMARK/TRADE NAMES


 


 



United Stated Trademarks


 



	
Domestic Mark

	
Jurisdiction

	
Class

	
Owner

	
Status

	
Reg./Serial #

	
Reg./Filing Date

	
Renewal Date


	
$2 $4 $6 $8 VALUE MENU

	
US

	
43

	
DFO, LLC

	
Pending

	
85006944

	
6-Apr-10

	  
	
$2 $4 $6 $8

	
US

	
43

	
DFO, LLC

	
Pending

	
85006941

	
6-Apr-10

	  
	
ALL-AMERICAN SLAM

	
US

	
29

	
DFO, LLC

	
Registered

	
1,950,994

	
23-Jan-96

	
23-Jan-16


	
APPLESAUCE SWIMMERS

	
US

	
29

	
DFO, LLC

	
Registered

	
3,045,056

	
17-Jan-06

	
17-Jan-16


	
CUCUMBER CRAVERZ

	
US

	
29

	
DFO, LLC

	
Registered

	
3,027,395

	
13-Dec-05

	
13-Dec-15


	
D-ZONE

	
US

	
43

	
DFO, LLC

	
Registered

	
2,992,224

	
6-Sep-05

	
6-Sep-15


	
DANNY'S DONUTS

	
US

	
43

	
DFO, LLC

	
Registered

	
3,768,961

	
30-Mar-10

	
30-Mar-20


	
DENNY'S CLASSIC DINER and Design with tubes

	
US

	
42

	
DFO, LLC

	
Registered

	
2,469,927

	
17-Jul-01

	
17-Jul-21


	
DENNY'S CLASSIC DINER and Design with neon

	
US

	
42

	
DFO, LLC

	
Registered

	
2,469,928

	
17-Jul-01

	
17-Jul-21


	
DENNY'S CLASSIC DINER and Design (blue circle)

	
US

	
42

	
DFO, LLC

	
Registered

	
2,512,281

	
27-Nov-01

	
27-Nov-11


	
DENNY'S DINER 2000 and Design

	
US

	
42

	
DFO, LLC

	
Registered

	
2,372,959

	
1-Aug-00

	
1-Aug-20


	
Denny's Diner 2000 and Design

	
US

	
42

	
DFO, LLC

	
Registered

	
2,377,637

	
15-Aug-00

	
15-Aug-20


	
DENNY'S DINER 2000 w/o "Diner"

	
US

	
42

	
DFO, LLC

	
Registered

	
2,653,324

	
26-Nov-02

	
26-Nov-12


	
DENNY'S within a French Diamond

	
US

	
42

	
DFO, LLC

	
Registered

	
1,720,986

	
29-Sep-92

	
29-Sep-12


	
DENNY'S within a French Diamond

	
US

	
42

	
DFO, LLC

	
Registered

	
1,886,750

	
28-Mar-95

	
28-Mar-15


	
DENNY'S within a French Diamond

	
US

	
42

	
DFO, LLC

	
Registered

	
2,320,275

	
22-Feb-00

	
22-Feb-20


	
DENNY'S (stylized)

	
US

	
42

	
DFO, LLC

	
Registered

	
866,599

	
11-Mar-69

	
11-Mar-19


	
DENNY'S (stylized)

	
US

	
42

	
DFO, LLC

	
Registered

	
862,087

	
17-Dec-68

	
17-Dec-18


	
DENNY'S (stylized)

	
US

	
42

	
DFO, LLC

	
Registered

	
1,903,868

	
4-Jul-95

	
4-Jul-15


	
DENNY'S (word mark)

	
US

	
42

	
DFO, LLC

	
Registered

	
736,161

	
14-Aug-62

	
14-Aug-12


	
DENNY'S (word mark)

	
US

	
29, 30, 32

	
DFO, LLC

	
Registered

	
1,053,390

	
23-Nov-76

	
23-Nov-16


	
DENNY'S (word mark)

	
US

	
42

	
DFO, LLC

	
Registered

	
740,359

	
6-Nov-62

	
6-Nov-12





 


 




  





  











  






 


 


	
DENNY'S ALL NIGHT (logo)

	
US

	
43

	
DFO, LLC

	
Registered

	
2,888,674

	
28-Sep-04

	
28-Sep-14


	
DENNY'S FRESH EXPRESS (word)

	
US

	
43

	
DFO, LLC

	
Registered

	
3,498,403

	
9-Sep-08

	
9-Sep-18


	
DENNY'S TIL DAWN

	
US

	
42

	
DFO, LLC

	
Registered

	
1,720,991

	
29-Sep-92

	
29-Sep-12


	
DENVER SCRAMBLE

	
US

	
29

	
DFO, LLC

	
Registered

	
2,964,207

	
28-Jun-05

	
 June 28, 2015


	
DUSK 'TIL DAWN

	
US

	
42

	
DFO, LLC

	
Registered

	
3,051,982

	
31-Jan-06

	
31-Jan-16


	
FIT FARE (word mark)

	
US

	
42

	
DFO, LLC

	
Registered (supplemental)

	
1,996,275

	
20-Aug-96

	
20-Aug-16


	
FIT FARE (word mark)

	
US

	
43

	
DFO, LLC

	
Registered (Principal)

	
3,381,648

	
12-Feb-08

	
12-Feb-18


	
French Diamond design

	
US

	
43

	
DFO, LLC

	
Registered

	
2,761,133

	
9-Sep-03

	
9-Sep-13


	
FRENCH SLAM

	
US

	
30

	
DFO, LLC

	
Registered

	
1,735,075

	
24-Nov-92

	
24-Nov-12


	
FRENCH-TOASTIX

	
US

	
30

	
DFO, LLC

	
Registered

	
78,440,164

	
supplemental register 2,980,325  July 26, 2005

	
 July 26, 2015


	
GET YOUR CRAVE ON

	
US

	
43

	
DFO, LLC

	
Registered

	
3,375,730

	
29-Jan-08

	
29-Jan-18


	
A GOOD PLACE TO SIT AND EAT

	
US

	
43

	
DFO, LLC

	
Registered

	
2,896,910

	
26-Oct-04

	
26-Oct-14


	
GRAND SLAM

	
US

	
29

	
DFO, LLC

	
Registered

	
1,813,884

	
28-Dec-93

	
28-Dec-13


	
GRAND SLAM BREAKFAST

	
US

	
29

	
DFO, LLC

	
Registered

	
1,277,223

	
8-May-84

	
8-May-14


	
GRAND SLAM SLUGGER

	
US

	
29

	
DFO, LLC

	
Published for Opposition

	
85,006,940

	
6-Apr-10

	  
	
GREAT FOOD AND GREAT SERVICE BY GREAT PEOPLE...EVERY TIME!

	
US

	
43

	
DFO, LLC

	
Registered

	
2,802,016

	
6-Jan-04

	
6-Jan-14


	
HEARTLAND SCRAMBLE

	
US

	
29

	
DFO, LLC

	
Registered

	
3,086,695

	
25-Apr-06

	
25-Apr-16


	
JR. GRAND SLAM

	
US

	
29

	
DFO, LLC

	
Registered

	
1,270,950

	
20-Mar-84

	
20-Mar-14


	
MOONS OVER MY HAMMY

	
US

	
30

	
DFO, LLC

	
Registered

	
1,946,766

	
9-Jan-96

	
9-Jan-16


	
NANERPUS (word mark)

	
US

	
43

	
DFO, LLC

	
Registered

	
3,711,864

	
17-Nov-09

	
17-Nov-19


	
NANERPUS (design mark)

	
US

	
25, 43

	
DFO, LLC

	
Registered

	
3,800,808

	
8-Jun-10

	
8-Jun-20


	
PANCAKE PUPPIES

	
US

	
30

	
DFO, LLC

	
Registered

	
3,707,894

	
10-Nov-09

	
10-Nov-19


	
PLAY IT AGAIN SLAM

	
US

	
29

	
DFO, LLC

	
Registered

	
1,736,807

	
1-Dec-92

	
1-Dec-12


	
POTATO VOLCANO

	
US

	
29

	
DFO, LLC

	
Registered

	
3,027,397

	
13-Dec-05

	
13-Dec-15


	
RIGHT ON THE MONEY

	
US

	
43

	
DFO, LLC

	
Published for Opposition

	
77,940,046

	
19-Feb-10

	  
	
SENIOR BELGIAN WAFFLE SLAM

	
US

	
30

	
DFO, LLC

	
Registered

	
1,757,060

	
03/09/1993

	
9-Mar-13


	
SHRIMPSAHOY

	
US

	
29

	
DFO, LLC

	
Registered

	
2,881,173

	
7-Sep-04

	
7-Sep-14





 


 




  





  











  






 


	
SLAM

	
U.S.

	
29, 30

	
DFO, LLC

	
Registered

	
2,592,374

	
9-Jul-02

	
9-Jul-12


	
SLAMWICH

	
US

	
30

	
DFO, LLC

	
Registered

	
2,805,903

	
13-Jan-04

	
13-Jan-14


	
SLIM SLAM

	
US

	
30

	
DFO, LLC

	
Registered

	
2,569,543

	
14-May-02

	
14-May-12


	
SOUTHERN SLAM

	
US

	
29

	
DFO, LLC

	
Registered

	
1,743,375

	
29-Dec-92

	
29-Dec-12


	
SUPER BIRD

	
US

	
30

	
DFO, LLC

	
Registered

	
1,378,319

	
14-Jan-86

	
14-Jan-16


	
SUPER SLAM

	
US

	
29, 30

	
DFO, LLC

	
Registered

	
1,944,101

	
26-Dec-95

	
26-Dec-15


	
SUPER SCRAMBLES

	
US

	
29

	
DFO, LLC

	
Registered

	
2,966,985

	
12-Jul-05

	
 July 12, 2015


	
ULTIMATE OMELETTE

	
US

	
29

	
DFO, LLC

	
Registered

	
1,645,411

	
21-May-91

	
21-May-21


	
WAFFALINI

	
US

	
30

	
DFO, LLC

	
Pending

	
85,051,853

	
1-Jun-10

	  










Foreign Trademarks








	
International Mark

	
Country

	
Class

	
Owner

	
Status

	
App. #/Filing Date

	
Reg. #/Date

	
Renewal Date


	
DENNY'S

	
Aruba

	
43

	
DFO, LLC

	
Registered

	
4-Aug-03

	
22933   05/28/2004

	
4-Aug-13


	
DENNY'S (word mark)

	
Australia

	
42

	
DFO, LLC

	
Registered

	
714,263       07/31/96

	
714263            10/07/97

	
31-Jul-16


	
SUPER BIRD

	
Australia

	
30

	
DFO, LLC

	
Registered

	
A454717A

	
A454717         10/11/86

	
31-Oct-17


	
DENNY'S

	
Bahamas

	
42

	
DFO, LLC

	
Registered - now will change the owner name

	
24,762              3/28/2002

	
24,762          03/28/2002

	
26-Mar-16


	
DENNY'S

	
Barbados

	
29

	
DFO, LLC

	
Registered

	
4-Aug-93

	
81/8407           02/25/99

	
25-Feb-09


	
DENNY'S

	
Barbados

	
30

	
DFO, LLC

	
Registered

	
4-Aug-93

	
81/8408          02/25/99

	
25-Feb-09


	
DENNY'S

	
Barbados

	
32

	
DFO, LLC

	
Registered

	
4-Aug-93

	
81/8406           02/25/99

	
25-Feb-09


	
Denny's within a French Diamond

	
Barbados

	
29

	
DFO, LLC

	
Registered

	
4-Aug-93

	
81/8405

	
25-Feb-09


	
Denny's within a French Diamond

	
Barbados

	
32

	
DFO, LLC

	
Registered

	
4-Aug-93

	
81/8403

	
25-Feb-09


	
Denny's within a French Diamond

	
Barbados

	
30

	
DFO, LLC

	
Registered

	
4-Aug-93

	
81/8404

	
25-Feb-09





 


 


 




  





  











  






 


	
ALL AMERICAN SLAM

	
Belize

	
29

	
DFO, LLC

	
Registered

	
31-Jan-08

	
5145.08      01/31/2008

	
31-Jan-18


	
DENNY'S (word mark)

	
Belize

	
35

	
DFO, LLC

	
Registered

	
31-Jan-08

	
5416.08       01/31/2008

	
31-Jan-18


	
DENNY'S and design

	
Belize

	
43

	
DFO, LLC

	
Registered

	
31-Jan-08

	
5147.08    01/31/2008

	
31-Jan-18


	
FIT FARE

	
Belize

	
43

	
DFO, LLC

	
Registered

	
31-Jan-08

	
5148.08      01/31/2008

	
31-Jan-18


	
French Diamond design

	
Belize

	
43

	
DFO, LLC

	
Registered

	
31-Jan-08

	
5149.08       01/31/2008

	
31-Jan-18


	
GRAND SLAM

	
Belize

	
29

	
DFO, LLC

	
Registered

	
31-Jan-08

	
5150.08       01/31/2008

	
31-Jan-18


	
GRAND SLAM SLUGGER

	
Belize

	
29

	
DFO, LLC

	
Registered

	
31-Jan-08

	
5151.08      01/31/2008

	
31-Jan-18


	
MOONS OVER MY HAMMY

	
Belize

	
30

	
DFO, LLC

	
Registered

	
31-Jan-08

	
5152.08         01/31/2008

	
31-Jan-18


	
SLAM

	
Belize

	
30

	
DFO, LLC

	
Registered

	
31-Jan-08

	
5153.08      01/31/2008

	
31-Jan-18


	
SLIM SLAM

	
Belize

	
30

	
DFO, LLC

	
Registered

	
31-Jan-08

	
5154.08      01/31/2008

	
31-Jan-18


	
SUPER BIRD

	
Belize

	
30

	
DFO, LLC

	
Registered

	
31-Jan-08

	
5155.08       03/31/2008

	
31-Jan-18


	
DENNY'S

	
Bolivia

	
42

	
DFO, LLC

	
Registered

	
1830             09/07/94

	
C-64209  09/07/1994

	
7/1/2007  filed 5/17/2007


	
DENNY'S

	
Bolivia

	
43

	
DFO, LLC

	
Pending

	
SM-1071-07   3/23/2007

	  	  
	
DENNY'S

	
Brazil

	
43

	
DFO, LLC

	
Registered

	
813.342.961 02/26/87

	
813.342.961 12/01/92

	
1-Dec-12


	
ALL-AMERICAN SLAM

	
Canada

	  	
DFO, LLC

	
Registered

	
Serial No. 1,341,036

	
TMA746,419       08/27/2009

	
27-Aug-24


	
Denny's and (maple leaf) Design (in B&W)

	
Canada

	
43

	
DFO, LLC

	
Registered

	
Serial No.       1,142,698

	
TMA601,698  02/09/2004

	
9-Feb-19


	
Denny's and (maple leaf) Design (in color)

	
Canada

	
43

	
DFO, LLC

	
Registered

	
Serial No.    1,129,676

	
598001       12-18-2003

	
18-Dec-18


	
Denny's and (French Diamond) Design (in color)

	
Canada

	
43

	
DFO, LLC

	
Registered

	
Serial No.     1,122,162

	
TMA601,581     02/06/2004

	
6-Feb-19





 


 




  





  











  






 


	
Denny's and (French Diamond) Design (in B&W)

	
Canada

	
43

	
DFO, LLC

	
Registered

	
Serial No.    1,122,165

	
TMA601,912   02/11/2004

	
11-Feb-19


	
Denny's and (Maple Leaf) Design (in B&W)

	
Canada

	
43

	
DFO, LLC

	
Registered

	
Serial No.     1,122,164

	
TMA601,728 02/10/2004

	
10-Feb-19


	
Denny's and (Maple Leaf) Design (in color)

	
Canada

	
43

	
DFO, LLC

	
Registered

	
Serial No.    1,122,166

	
TMA601,580 02/06/2004

	
6-Feb-19


	
DENNY'S

	
Canada

	
42

	
DFO, LLC

	
Registered

	
321494        04/12/1969

	
TMA169,549     06/05/70

	
5-Jun-15


	
DENNY'S and design

	
Canada

	
42

	
DFO, LLC

	
Registered

	
739,942        10/28/93

	
TMA455,762     03/22/96

	
22-Mar-11


	
DENNY'S and design

	
Canada

	
29, 30, 42

	
DFO, LLC

	
Registered

	
321,495

	
TMA169,550    06/05/70

	
5-Jun-15


	
Denny's Stylized within a French Diamond

	
Canada

	
42

	
DFO, LLC

	
Registered

	
739,991        10/28/93

	
TMA454,583 02/23/96

	
23-Feb-11


	
FIT FARE

	
Canada

	  	
DFO, LLC

	
Registered

	
Serial No. 1,341,035                  03/27/07

	
TMA706,260     02/01/08

	
1-Feb-23


	
French Diamond design

	
Canada

	  	
DFO, LLC

	
Registered

	
Serial No. 1,341,024                 03/27/2007

	
TMA710,297       03/27/2008

	
27-Mar-23


	
MOONS OVER MY HAMMY

	
Canada

	  	
DFO, LLC

	
Registered

	
Serial No. 1,341,029    3/27/2007

	
TMA714,986       05/23/2008

	
23-May-23


	
SLAM

	
Canada

	  	
DFO, LLC

	
Registered

	
TMA750,793

	
10/22/2009

	
24-Oct-24


	
SLIM SLAM

	
Canada

	  	
DFO, LLC

	
Registered

	
Serial No. 1,341,027

	
TMA708,640       02/29/2008

	
28-Feb-23


	
SUPER BIRD

	
Canada

	  	
DFO, LLC

	
Registered

	
687,647        08/14/91

	
TMA404,315  10/30/92

	
30-Oct-07


	
SUPER SLAM

	
Canada

	  	
DFO, LLC

	
Registered

	
1,135,704      04/05/02

	
TMA569,070   10/18/02

	
18-Oct-17


	
THE ULTIMATE OMLETTE

	
Canada

	  	
DFO, Inc.

	
Registered

	
687,649        08/14/91

	
TMA404,316   10/30/92

	
30-Oct-07


	
Denny's, Inc.

	
Chile

	
42

	
DFO, Inc.

	
Registered

	
3677             06/03/82

	
395,511          12/02/82          653.999           01/08/03

	
8-Jan-13





 


 




  





  











  






 


	
Denny's In Chinese Characters

	
China

	
42

	
DFO, LLC

	
Registered

	
93094339     09/30/93

	
777369            02/06/95

	
6-Feb-15


	
Denny's Stylized

	
China

	
32

	
DFO, LLC

	
Registered

	  	
180767            07/05/83

	
4-Jul-13


	
Denny's Stylized

	
China

	
29

	
DFO, LLC

	
Registered

	  	
180766            07/05/83

	
4-Jul-13


	
Denny's

	
Colombia

	
42

	
DFO, Inc.

	
Pending

	
275278        08/28/87

	  	  
	
Denny's

	
Columbia

	
32

	
DFO, Inc.

	
Pending

	
275279         01/01/92

	  	  
	
Denny's

	
Community Trademark (Austria, Belgium, Denmark, Finland, France, Germany, Greece, Ireland, Italy, Luxembourg, the Netherlands, Portugal, Spain, Sweden, United Kingdom, Cyprus, Czech Republic, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Slovakia, Slovenia)

	  	  	
Registered

	  	
00789709    07/26/2002

	
26-Jul-12


	
ALL-AMERICAN SLAM

	
Costa Rica

	
29

	
DFO, LLC

	
Registered

	
4/10/2007

	
173724     04/28/2008

	
28-Apr-18


	
DENNY'S

	
Costa Rica

	
43

	
DFO, LLC

	
Registered

	  	
68.227             10/26/87

	
26-Oct-17


	
DENNY'S (stylized)

	
Costa Rica

	
42

	
DFO, LLC

	
Registered

	  	
113265   04/19/1999

	
19-Apr-09


	
DENNY'S (stylized in a French diamond)

	
Costa Rica

	
42

	
DFO, LLC

	
Registered

	  	
113266    04/19/1999

	
19-Apr-09


	
DENNY'S logo

	
Costa Rica

	
43

	
DFO, LLC

	
Registered

	
4/10/2007

	
173987      04/29/2008

	
29-Apr-18


	
FIT FARE

	
Costa Rica

	
43

	
DFO, LLC

	
Registered

	
4/10/2007

	
6/24/2008

	
24-Jun-18


	
French Diamond design

	
Costa Rica

	
29

	
DFO, LLC

	
Pending

	
4/10/2007

	  	  



 


 




  





  











  






 


	
GRAND SLAM

	
Costa Rica

	
29

	
DFO, LLC

	
Registered

	
4/10/2007

	
173739      04/28/2008

	
28-Apr-18


	
GRAND SLAM SLUGGER

	
Costa Rica

	
29

	
DFO, LLC

	
Registered

	
4/10/2007

	
173736     04/28/2008

	
28-Apr-18


	
MOONS OVER MY HAMMY

	
Costa Rica

	
29

	
DFO, LLC

	
Registered

	
4/10/2007

	
173759     04/28/2008

	
28-Apr-18


	
SLAM

	
Costa Rica

	
29

	
DFO, LLC

	
Registered

	
4/10/2007

	
173734     04/28/2008

	
28-Apr-18


	
SLIM SLAM

	
Costa Rica

	
29

	
DFO, LLC

	
Registered

	
4/10/2007

	
173722  04/28/2008

	
28-Apr-18


	
SUPER BIRD

	
Costa Rica

	
29

	
DFO, LLC

	
Registered

	
4/10/2007

	
173785     04/28/2008

	
28-Apr-18


	
SUPER SCRAMBLES

	
Costa Rica

	
29

	
DFO, LLC

	
Registered

	
4/10/2007

	
173725      04/28/2008

	
28-Apr-18


	
ULTIMATE OMELETTE

	
Costa Rica

	
29

	
DFO, LLC

	
Registered

	
4/10/2007

	
180973        October 17, 2008

	
17-Oct-18


	
Denny's

	
Denmark

	
42

	
DFO, Inc.

	
Registered

	
27-Jan-87

	
VR 01.493198    04/04/87

	
4-Apr-97


	
Denny's and French Diamond Design

	
Dominican Rep.

	
70

	
DFO, LLC

	
Registered

	
23,739          04/24/95

	
78,566            07/15/95

	
15-Jul-15


	
DENNY'S

	
Ecuador

	
43

	
DFO, LLC

	
Registered

	
151.200     11/24/2004

	
1194-05   09/21/2005

	
21-Sep-15


	
DENNY'S

	
Egypt

	
43

	
DFO, LLC

	
Pending

	
234192

	  	  
	
DENNY'S

	
Egypt

	
42

	
DFO, LLC

	
Registered

	
133040   05/17/2000

	
133040  07/19/2004

	
17-May-10


	
DENNY'S

	
El Salvador

	
42

	
DFO, LLC

	
Registered

	
3466/94        09/20/94

	
171 Book 165

	
29-Jan-13


	
DENNY'S and design

	
El Salvador

	
42

	
DFO, LLC

	
Registered

	  	
No. 160 book 188 pages 327328      02/10/2005

	
10-Feb-15


	
DENNY'S

	
El Salvador

	
43

	
DFO, LLC

	
Registered

	
20070092893    5/7/07

	
54 Book 91       09/03/2007

	
3-Sep-17


	
DENNY'S and design (logo)

	
El Salvador

	
43

	
DFO, LLC

	
Registered

	
2007009284    5/7/07

	
84 Book 91    09/04/2007

	
4-Sep-17





 


 




  





  











  






 


	
French Diamond design

	
El Salvador

	
43

	
DFO, LLC

	
Registered

	
20070092900   5/7/07

	
86 Book 91      09/04/2007

	
4-Sep-17


	
MOONS OVER MY HAMMY

	
El Salvador

	
30

	
DFO, LLC

	
Registered

	
20070092905     5/7/2007

	
35 Book 91    09/03/2007

	
3-Sep-17


	
SLIM SLAM

	
El Salvador

	
30

	
DFO, LLC

	
Registered

	
20070092898

	
43 Book 113      09/19/2008

	
19-Sep-18


	
SUPER BIRD

	
El Salvador

	
30

	
DFO, LLC

	
Registered

	
20070092896     5/7/2007

	
36 Book 91      09/03/2007

	
3-Sep-17


	
SUPER SCRAMBLES

	
El Salvador

	
29

	
DFO, LLC

	
Registered

	
20070092895    5/7/2007

	
52 Book 91       09/03/2007

	
3-Sep-17


	
ULTIMATE OMELETTE

	
El Salvador

	
29

	
DFO, LLC

	
Registered

	
20070092892     5/7/2007

	
66 Book 98            01/04/2008

	
4-Jan-18


	
Denny's

	
Fed. Republic of Germany

	
30

	
DFO, LLC

	
Registered

	  	
923334           01/20/80

	
31-Jan-10


	
Denny's within a French Diamond

	
France

	
29,30,32,42 to 43

	
DFO, LLC

	
Registered

	
93/478.461   07/29/93

	
93478461       01/14/94

	
28-Jul-13


	
ALL-AMERICAN SLAM

	
Guatemala

	
29

	
DFO, LLC

	
pending

	
067804    5/4/2007

	  	  
	
DENNY'S and design

	
Guatemala

	
43

	
DFO, LLC

	
Registered

	
064909    5/4/2007

	
165,381  Page 252  volume 409     08/26/2009

	
25-Aug-19


	
DENNY'S

	
Guatemala

	
42

	
DFO, LLC

	
Registered

	  	
112566    03/09/2001

	
9-Feb-11


	
DENNY'S

	
Guatemala

	
43

	
DFO, LLC

	
Application

	
M-7590-2002

	
123365                 04/14/03

	
13-Apr-13


	
FIT FARE

	
Guatemala

	
43

	
DFO, LLC

	
Registered

	
067805       5/4/2007

	
163,022 page 292 volume 401                   04/29/2009

	
28-Apr-19


	
French Diamond design

	
Guatemala

	
43

	
DFO, LLC

	
Pending

	
067803    5/4/07

	  	  
	
GRAND SLAM

	
Guatemala

	
29

	
DFO, LLC

	
Pending

	
067801    5/4/07

	  	  
	
GRAND SLAM SLUGGER

	
Guatemala

	
29

	
DFO, LLC

	
Pending

	
067802    5/4/07

	  	  
	
MOONS OVER MY HAMMY

	
Guatemala

	
30

	
DFO, LLC

	
Pending

	
064904     5/4/07

	  	  



 




  





  











  






 


 


	
SLAM

	
Guatemala

	
29

	
DFO, LLC

	
Pending

	
067799      05/04/2007

	  	  
	
SLAM

	
Guatemala

	
30

	
DFO, LLC

	
Pending

	
064908   05/04/07

	  	  
	
SLIM SLAM

	
Guatemala

	
30

	
DFO, LLC

	
Pending

	
064907     05/04/07

	  	  
	
SUPER BIRD

	
Guatemala

	
30

	
DFO, LLC

	
Registered

	
064905     05/04/07

	
163,085 pg 55 vol 402        May 4, 2009

	
3-May-19


	
SUPER SCRAMBLES

	
Guatemala

	
29

	
DFO, LLC

	
Pending

	
064906   05/04/07

	  	  
	
ULTIMATE OMELETTE

	
Guatemala

	
29

	
DFO, LLC

	
Pending

	
067800    05/04/2007

	  	  
	
DENNY'S

	
Haiti

	
43

	
DFO, LLC

	
Registered

	  	
No. 289 Reg - 160        03/26/2008

	
26-Mar-18


	
DENNY'S

	
Honduras

	
43

	
DFO, LLC

	
Registered

	
11476/2002     9/30/02

	
9.093                     05/19/03

	
19-May-13


	
ALL-AMERICAN SLAM

	
Honduras

	
29

	
DFO, LLC

	
Registered

	
9-Apr-07

	
106.333     08/29/2008

	
29-Aug-18


	
DENNY'S and design logo

	
Honduras

	
43

	
DFO, LLC

	
Registered

	
11630/07          4/9/2007

	
12.719       10/17/2007

	
17-Oct-17


	
FIT FARE

	
Honduras

	
43

	
DFO, LLC

	
Registered

	
11639/07     4/9/2007

	
10/10/2007   12.699

	
10-Oct-17


	
French Diamond design

	
Honduras

	
43

	
DFO, LLC

	
Registered

	
11629/07    4/9/2007

	
12.737          10/22/2007

	
22-Oct-17


	
GRAND SLAM

	
Honduras

	
29

	
DFO, LLC

	
Registered

	
9-Apr-07

	
105.375                     06/25/2008

	
25-Jun-18


	
GRAND SLAM SLUGGER

	
Honduras

	
29

	
DFO, LLC

	
Registered

	
11637/07       04/09/2007

	
103.148       12/26/2007

	
26-Dec-17


	
MOONS OVER MY HAMMY

	
Honduras

	
30

	
DFO, LLC

	
Registered

	
11636/07      4/9/2007

	
103.128        12/26/2007

	
26-Dec-17


	
SLAM

	
Honduras

	
29

	
DFO, LLC

	
published for opposition

	
11634/07      04/09/2007

	  	  
	
SLAM

	
Honduras

	
30

	
DFO, LLC

	
Registered

	
11635/07      04/09/2007

	
103.142       12/26/2007

	
26-Dec-17


	
SUPER BIRD

	
Honduras

	
30

	
DFO, LLC

	
Registered

	
11632/07        04/09/2007

	
103.123       12/26/2007

	
26-Dec-17





 


 




  





  











  






 


	
SUPER SCRAMBLES

	
Honduras

	
29

	
DFO, LLC

	
Registered

	
11641/07            4/9/2007

	
102.312            10/10/2007

	
10-Oct-17


	
DENNY'S

	
India

	
43

	
DFO, LLC

	
pending

	
2008519     8/13/2010

	  	  
	
Denny's

	
Jordan

	
32

	
DFO, LLC

	
Registered

	
33895           12/27/93

	
33895             12/30/00

	
27-Dec-10


	
Denny's

	
Jordan

	
29

	
DFO, LLC

	
Registered

	
33894           12/23/93

	
33894             12/30/00

	
26-Dec-10


	
DENNY'S

	
Jordan

	
43

	
DFO, LLC

	
published for opposition

	
111926      05/02/2010

	  	  
	
Denny's

	
Jordan

	
30

	
DFO, LLC

	
Registered

	
34223            12/27/93

	
34340             12/30/00

	
27-Dec-10


	
Denny's (word mark)

	
Korea (South)

	
42

	
DFO, LLC

	
Registered

	
78 1990

	
2776               11/14/80

	
14-Nov-10


	
Denny's with French Diamond (cartoon letters)

	
Korea (South)

	
112 will be reclassed as 43

	
DFO, LLC

	
Registered

	
51-2003-866     reclass app  56-2003-8728       06/26/03

	
20818             07/29/93

	
29-Jul-13


	
GRAND SLAM

	
Korea (South)

	
29 (7)

	
DFO, LLC

	
Registered

	
96-53144     12/07/96

	
407949           07/06/1998

	
7-Jul-17


	
Denny's

	
Lebanon

	  	
DFO, LLC

	
Pending

	  	  	  
	
Denny's and French Diamond Design

	
Malaysia

	
30

	
DFO, LLC

	
Registered

	
94/08482     09/17/94

	
94/08482        09/26/01

	
17-Sep-11


	
Denny's

	
Malaysia

	
43

	
DFO, LLC

	
Registered

	
04020457   12/28/2004

	
04020457        12/28/2004

	
28-Dec-14


	
ALL AMERICAN SLAM

	
Mexico

	
29

	
DFO, LLC

	
Registered - 2/25/2008 statement of use accepted - protected for 3 yrs

	
221523          01/12/1995

	
580276           06/30/98

	
12-Jan-15


	
ALL AMERICAN SLAM

	
Mexico

	
30

	
DFO, LLC

	
Registered - 2/25/2008 statement of use accepted - protected for 3 yrs

	
221508          01/12/95

	
490594           05/02/95

	
12-Jan-15


	
DENNY'S

	
Mexico

	
42

	
DFO, LLC

	
Registered

	
101064         06/11/76

	
204331             07/13/77

	
11-Jun-11





 


 




  





  











  






 


	
DENNY'S

	
Mexico

	
46

	
DFO, LLC

	
Registered

	
160416         01/30/80

	
242337           03/13/80

	
12-Jan-15


	
DENNY'S & design

	
Mexico

	
43

	
DFO, LLC

	
Registered

	
675753         09/07/2004

	
856647    10/26/2004

	
7-Sep-14


	
DENNY'S DINER & design

	
Mexico

	
42

	
DFO, LLC

	
Registered

	
464926

	
707755 07/27/2001

	
8-Jan-11


	
DENNY'S TIL DAWN

	
Mexico

	
43

	
DFO, LLC

	
Registered

	
221494         01/12/95

	
498610            07/26/95

	
12-Jan-15


	
FIT FARE

	
Mexico

	
29

	
DFO, LLC

	
Registered

	
225137         02/21/95

	
488121           04/21/95

	
21-Feb-15


	
FIT FARE

	
Mexico

	
43

	
DFO, LLC

	
Registered - 2/25/2008 statement of use accepted - protected for 3 yrs

	
221492        01/12/95

	
487283            04/12/95

	
12-Jan-15


	
French diamond design

	
Mexico

	
43

	
DFO, LLC

	
Registered

	
847883     04/11/2007

	
988267     June 19, 2007

	
11-Apr-17


	
FRENCH SLAM

	
Mexico

	
30

	
DFO, LLC

	
Registered

	
221496          01/12/95

	
490589           05/02/95

	
12-Jan-15


	
FRENCH SLAM

	
Mexico

	
29

	
DFO, LLC

	
Registered

	
221498         01/12/95

	
517044           02/20/96

	
12-Jan-15


	
GRAND SLAM

	
Mexico

	
29

	
DFO, LLC

	
Registered

	  	
726539       0919/2001

	
19-Sep-11


	
GRAND SLAM

	
Mexico

	
30

	
DFO, LLC

	
Registered

	  	
726540   09/19/2001

	
19-Sep-11


	
GRAND SLAM BREAKFAST

	
Mexico

	
29

	
DFO, LLC

	
Registered

	
221507        01/12/95

	
497174            07/14/95

	
12-Jan-15


	
GRAND SLAM BREAKFAST

	
Mexico

	
30

	
DFO, LLC

	
Registered

	
221506  01/12/95

	
409593  07/14/95

	
12-Jan-15


	
GRAND SLAM SLUGGER

	
Mexico

	
29

	
DFO, LLC

	
Registered

	
847884       04/11/2007

	
985322      05/23/2007

	
11-Apr-17


	
MOONS OVER MY HAMMY

	
Mexico

	
30

	
DFO, LLC

	
Registered - 2/25/2008 statement of use accepted - protected for 3 yrs

	
221517         01/12/95

	
490596            05/02/95

	
12-Jan-15





 


 




  





  











  






 


	
MOONS OVER MY HAMMY

	
Mexico

	
29

	
DFO, LLC

	
Registered - 2/25/2008 statement of use accepted - protected for 3 yrs

	
221516         01/12/95

	
497177           07/14/95

	
12-Jan-15


	
SCRAM SLAM

	
Mexico

	
29

	
DFO, LLC

	
Registered

	
221493         01/12/95

	
497171            07/14/95

	
12-Jan-15


	
SCRAM SLAM

	
Mexico

	
30

	
DFO, LLC

	
Registered

	
221510         01/12/95

	
490595            05/02/95

	
12-Jan-15


	
SLAM

	
Mexico

	
29

	
DFO, LLC

	
Registered

	
847885    04/11/2007

	
985323           5/23/2007

	
11-Apr-17


	
SLAM

	
Mexico

	
30

	
DFO, LLC

	
Registered

	
847886   04/11/2007

	
985324      05/23/2007

	
11-Apr-17


	
SLIM SLAM

	
Mexico

	
30

	
DFO, LLC

	
Registered

	
847887      04/11/2007

	
985325    05/23/2007

	
11-Apr-17


	
SUPER SLAM

	
Mexico

	
29

	
DFO, LLC

	
Registered

	
221514         01/12/95

	
497176            07/14/95

	
12-Jan-15


	
SUPER SLAM

	
Mexico

	
30

	
DFO, LLC

	
Registered

	
221515         01/12/95

	
491992            05/22/95

	
12-Jan-15


	
The SUPER BIRD

	
Mexico

	
29

	
DFO, LLC

	
Registered - 2/25/2008 statement of use accepted - protected for 3 yrs

	
221500         01/12/95

	
494073            06/12/95

	
12-Jan-15


	
The SUPER BIRD

	
Mexico

	
30

	
DFO, LLC

	
Registered - 2/25/2008 statement of use accepted - protected for 3 yrs

	
221499         01/12/95

	
490590            05/02/95

	
12-Jan-15


	
DENNY'S

	
Netherlands Antilles

	
43

	
DFO, LLC

	
Registered

	
08/05/2003         D-30042

	
10044  09/30/2003

	
5-Aug-13


	
DENNY'S and design logo

	
New Zealand

	
43

	
DFO, LLC

	
Registered

	
766515 / 04/10/2007

	
766515           04/10/2017

	
10-Apr-17


	
DENNY'S

	
New Zealand

	
16

	
DFO, LLC

	
Registered

	  	
B143209         07/19/82

	
19-Jul-17


	
DENNY'S

	
New Zealand

	
29

	
DFO, LLC

	
Registered

	  	
B143208        07/19/82

	
19-Jul-17





 


 




  





  











  






 


	
DENNY'S

	
New Zealand

	
30

	
DFO, LLC

	
Registered

	  	
B92476           01/01/70

	
20-Jan-15


	
DENNY'S

	
New Zealand

	
32

	
DFO, LLC

	
Registered

	  	
B92477          01/20/77

	
20-Jan-15


	
Denny's (checkerboard background with Kiwi bird)

	
New Zealand

	
43

	
DFO, LLC

	
Registered

	
672625        01/30/03

	
672625             01/30/03

	
1/30/2010 - instructed to renew


	
French Diamond design

	
New Zealand

	
43

	
DFO, LLC

	
Pending

	
766517 / 04/10/2007

	  	  
	
GRAND SLAM

	
New Zealand

	
29

	
DFO, LLC

	
Registered

	
766518 / 04/10/2007

	
766,518      04/10/2007

	
10-Apr-17


	
GRAND SLAM SLUGGER

	
New Zealand

	
29

	
DFO, LLC

	
Registered

	
766519 / 04/10/2007

	
766,519    04/10/2007

	
10-Apr-17


	
MOONS OVER MY HAMMY

	
New Zealand

	
30

	
DFO, LLC

	
Registered

	
766520 / 04/10/2007

	
766,520        04/10/2007

	
10-Apr-17


	
SLAM

	
New Zealand

	
29 & 30

	
DFO, LLC

	
Registered

	
766522 / 04/10/2007

	
766,522   04/10/2007

	
10-Apr-17


	
SLIM SLAM

	
New Zealand

	
30

	
DFO, LLC

	
Registered

	
766523 / 04/10/2007

	
766,523      04/10/2007

	
10-Apr-17


	
SUPER BIRD

	
New Zealand

	
30

	
DFO, LLC

	
Registered

	
766525 / 04/10/2007

	
766,525        04/10/2007

	
10-Apr-17


	
ALL AMERICAN SLAM

	
Nicaragua

	
29

	
DFO, LLC

	
Registered

	
2007-01542     05/09/2007

	
0801426LM          06/18/2008

	
17-Jun-18


	
DENNY'S

	
Nicaragua

	
42

	
DFO, LLC

	
Registered

	  	
567200            11/10/76

	
9-Nov-16


	
DENNY'S

	
Nicaragua

	
43

	
DFO, LLC

	
Registered

	
2007-01543     05/09/2007

	
0801427LM      06/18/2008

	
17-Jun-18


	
FIT FARE

	
Nicaragua

	
43

	
DFO, LLC

	
Registered

	
2007-01545      05/09/2007

	
0801429LM       06/18/2008

	
17-Jun-18


	
GRAND SLAM

	
Nicaragua

	
29

	
DFO, LLC

	
Registered

	
2007-01547    05/09/2007

	
0801138 LM       05/20/2008

	
19-May-18


	
GRAND SLAM SLUGGER

	
Nicaragua

	
29

	
DFO, LLC

	
Registered

	
2007-01548     5/9/2007

	
0801105LM    05/19/2008

	
18-May-18


	
SLAM

	
Nicaragua

	
29 and 30

	
DFO, LLC

	
Registered

	
2007-01550   05/09/2007

	
080079LM      04/16/2008

	
15-Apr-18


	
SLIM SLAM

	
Nicaragua

	
30

	
DFO, LLC

	
Pending

	
2007-01551      05/09/2007

	  	  



 


 




  





  











  






 


	
SUPER BIRD

	
Nicaragua

	
30

	
DFO, LLC

	
Registered

	
2007-01552     05/09/2007

	
0801107LM     05/19/2008

	
18-May-18


	
SUPER SCRAMBLES

	
Nicaragua

	
29

	
DFO, LLC

	
Registered

	
2007-01554      05/09/2007

	
0801109LM     05/19/2008

	
18-May-18


	
ULTIMATE OMELETTE

	
Nicaragua

	
29

	
DFO, LLC

	
Registered

	
2007-01555   05/09/2007

	
0801110LM    05/19/2008

	
18-May-18


	
Denny's

	
Norway

	
29,43

	
DFO, LLC

	
Registered

	
810540         02/23/81

	
112099             09/23/82

	
23-Sep-12


	
Denny's

	
Panama

	
43

	
DFO, LLC

	
Registered

	  	
1032-02                08/17/76

	
17-Aug-16


	
Denny's

	
Paraguay

	
42

	
DFO, LLC

	
Registered

	
09693      05/27/94

	
268787     06/14/2004

	
14-Jun-14


	
Denny's

	
Paraguay

	
30

	
DFO, LLC

	
Registered

	
09692           05/27/94

	
272.708    10/26/04

	
26-Oct-14


	
Denny's and Design

	
Paraguay

	
42

	
DFO, LLC

	
Registered

	
9420250        09/30/94

	
268787    06/14/2004

	
14-Jun-14


	
DENNY'S

	
Peru

	
43

	
DFO, LLC

	
Pending

	  	
App No 333475-2007

	  
	
DENNY'S and design

	
Peru

	
43

	
DFO, LLC

	
Pending

	  	
App No 333476-2007

	  
	
Denny's

	
Philippines

	
42

	
DFO, LLC

	
Registered

	
119,857        04/18/97

	
4-1997-119857      08/28/2004

	
28-Aug-24


	
Denny's

	
Saudi Arabia

	
43

	
DFO, LLC

	
Registered

	
23002           11/17/93

	
325/20              11/12/94

	
13-Apr-13


	
Denny's

	
Singapore

	
42

	
DFO, LLC

	
Published

	
S/10167/94 11/22/94

	  	  
	
Denny's

	
Singapore

	
43

	
DFO, LLC

	
Registered

	
24-Jul-02

	
T02/11157B      07/24/02

	
24-Jul-12


	
Denny's

	
Spain

	
32

	
DFO, LLC

	
Registered

	
2285170/4      01/24/00

	
2285170      01/24/2000

	  
	
Denny's

	
Spain

	
43

	
DFO, LLC

	
Registered

	
02588786/6   03/29/2004

	
2588786      09/24/2004

	
29-Mar-14


	
Denny's

	
Spain

	
30

	
DFO, LLC

	
Registered

	  	
2285169

	  
	
Denny's

	
Sweden

	
43

	
DFO, LLC

	
Registered

	  	
186206            04/22/83

	
22-Apr-13





 


 




  





  











  






 


	
Denny's

	
Switzerland

	
43

	
DFO, LLC

	
Registered

	
60528/2009     9/24/09

	
592.014    9/24/2009

	
24-Sep-19


	
Denny's

	
Taiwan

	
45

	
DFO, LLC

	
Registered

	  	
44743             01/01/71

	
31-Dec-10


	
Denny's

	
Taiwan

	
7

	
DFO, LLC

	
Registered

	  	
1631               10/01/78

	
30-Sep-18


	
Denny's and French Diamond Design

	
Taiwan

	
42

	
DFO, LLC

	
Registered

	
83049004     07/25/94

	
80513              01/01/96

	
30-Sep-98


	
Denny's (word mark)

	
Thailand

	
42

	
DFO, LLC

	
Registered

	
459786         07/17/01

	
SM17054        08/13/02

	
16-Jul-11


	
Denny's and Sunburst Design

	
Trinidad & Tobago

	  	
DFO, LLC

	
Unfiled

	  	  	  
	
DENNY'S

	
United Arab Emirates

	
43

	
DFO, LLC

	
Registered

	
64281      10/12/2004

	
58106       02/27/2006

	
12-Oct-14


	
DENNY'S

	
Uruguay

	
43

	
DFO, LLC

	
Pending

	
367.206       11/30/2005

	  	  
	
Denny's

	
Venezuela

	
43

	
DFO, LLC

	
Pending

	
5494-08                     12/05/08

	  	  


















  





  











  













Schedule IV


to Guarantee and


Collateral Agreement


 


Insurance Requirements


 


(a) In furtherance of Section 6.07 of the Credit Agreement, (i) all insurance policies required to be maintained with respect to the assets and properties of the Grantors under Section 6.07 of the Credit Agreement shall be payable to the Administrative Agent as loss payee under a “standard” or “New York” loss payee clause for the benefit of the Secured Parties and (ii) the Administrative Agent, for the benefit of the Secured Parties, shall be named as an additional insured under all liability insurance policies.  Without limiting the foregoing, each Grantor will (a) keep all of its physical property insured with casualty or physical hazard insurance on an “all risks” basis, with broad form flood and earthquake coverages and electronic data processing coverage, with a full replacement cost endorsement and an “agreed amount” clause in an amount equal to 100% of the full replacement cost of such property, (b) maintain all such workers’ compensation or similar insurance as may be required by law and (c) maintain, in amounts and with deductibles equal to those generally maintained by businesses engaged in similar activities in similar geographic areas, general public liability insurance against claims of bodily injury, death or property damage occurring, on, in or about the properties of such Grantor; business interruption insurance; and product liability insurance.


 


(b) Each Grantor shall furnish the Administrative Agent with certificates of insurance (in a form similar to those delivered on the Closing Date) evidencing compliance with the insurance provisions contained in Section 6.07 of the Credit Agreement in respect of each insurance policy existing on the Closing Date or renewed, extended or replaced following the Closing Date.


 







 










  





  











  



Exhibit I


to Guarantee and


Collateral Agreement




















 


SUPPLEMENT NO. __ dated as of [_______] (this “Supplement”), to the Second Amended and Restated Guarantee and Collateral Agreement dated as of September 30, 2010 (the “Guarantee and Collateral Agreement”), among Denny’s, Inc., a California corporation, and Denny’s Realty, LLC, a Delaware limited liability company (each of the foregoing, individually, a “Borrower” and collectively, the “Borrowers”), Denny’s Corporation, a Delaware corporation (“Parent”), Denny’s Holdings, Inc., a New York corporation (“Denny’s Holdings”), DFO, LLC, a Delaware limited liability company (“DFO”), each other Subsidiary Loan Party, and Bank of America, N.A. (“Bank of America”), as Administrative Agent (in such capacity, the “Administrative Agent”) for the Secured Parties (as defined herein).


 


A.  Reference is made to the Second Amended and Restated Credit Agreement dated as of September 30, 2010 (as amended, supplemented, waived or otherwise modified from time to time, the “Credit Agreement”), among (i) the Borrowers, (ii) Parent, Denny’s Holdings and DFO, as Guarantors, (iii) the Lenders party thereto (the “Lenders”), and (iv) Bank of America, as Administrative Agent.


 


B.  Capitalized terms used herein and not otherwise defined herein shall have the meanings assigned to such terms in the Credit Agreement and the Guarantee and Collateral Agreement referred to therein.


 


C.  The Grantors have entered into the Guarantee and Collateral Agreement in order to induce the Lenders to make Loans and the L/C Issuer to issue Letters of Credit.  Section 7.16 of the Guarantee and Collateral Agreement provides that additional Subsidiaries may become Subsidiary Loan Parties under the Guarantee and Collateral Agreement by execution and delivery of an instrument in the form of this Supplement.  The undersigned Subsidiary (the “New Subsidiary”) is executing this Supplement in accordance with the requirements of the Credit Agreement to become a Subsidiary Loan Party under the Guarantee and Collateral Agreement in order to induce the Lenders to make additional Loans and the L/C Issuer to issue additional Letters of Credit and as consideration for Loans previously made and Letters of Credit previously issued.


 


Accordingly, the Administrative Agent and the New Subsidiary agree as follows:


 


SECTION 1.  In accordance with Section 7.16 of the Guarantee and Collateral Agreement, the New Subsidiary by its signature below becomes a Subsidiary Loan Party, a Grantor and a Guarantor under the Guarantee and Collateral Agreement with the same force and effect as if originally named therein as a Subsidiary Loan Party, a Grantor and a Guarantor, and the New Subsidiary hereby (a) agrees to all the terms and provisions of the Guarantee and Collateral Agreement applicable to it as a Subsidiary Loan Party, Grantor and Guarantor thereunder and (b) represents and warrants that the representations and warranties made by it as a Grantor and Guarantor thereunder are true and correct on and as of the date hereof.  In furtherance of the foregoing, the New Subsidiary, as security for the payment and performance in full of the Obligations (as defined in the Guarantee and Collateral Agreement), does hereby create and grant to the Administrative Agent, its successors and assigns, for the benefit of the Secured Parties and their successors and assigns, a security interest in and lien on all of the New Subsidiary’s right, title and interest in and to the Collateral (as defined in the Guarantee and Collateral Agreement) of the New Subsidiary.  Each reference to a “Subsidiary Loan Party”, a “Grantor” or a “Guarantor” in the Guarantee and Collateral Agreement shall be deemed to 


 




  





  











  






 


include the New Subsidiary.  The Guarantee and Collateral Agreement is hereby incorporated herein by reference.


 


SECTION 2.  The New Subsidiary represents and warrants to the Administrative Agent and the other Secured Parties that this Supplement has been duly authorized, executed and delivered by it and constitutes its legal, valid and binding obligation, enforceable against it in accordance with its terms.


 


SECTION 3.  This Supplement may be executed in counterparts (and by different parties hereto on different counterparts), each of which shall constitute an original, but all of which, when taken together, shall constitute a single contract. This Supplement shall become effective when (a) the Administrative Agent shall have received a counterpart of this Supplement that bears the signature of the New Subsidiary and (b) the Administrative Agent has executed a counterpart hereof.  Delivery of an executed signature page to this Supplement by facsimile transmission shall be as effective as delivery of a manually signed counterpart of this Supplement.


 


SECTION 4.  The New Subsidiary hereby represents and warrants that (a) set forth on Schedule I attached hereto is a true and correct schedule of the location of any and all Article 9 Collateral of the New Subsidiary, (b) set forth on Schedule II attached hereto is a true and correct schedule of all the Pledged Securities of the New Subsidiary and (c) set forth under its signature hereto, is the true and correct legal name of the New Subsidiary, its jurisdiction of formation and the location of its chief executive office.


 


SECTION 5.  Except as expressly supplemented hereby, the Guarantee and Collateral Agreement shall remain in full force and effect.


 


SECTION 6.  THIS SUPPLEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS SUPPLEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, (WITHOUT GIVING EFFECT TO ANY CHOICE OR CONFLICT OF LAW PROVISION OR RULE THAT WOULD CAUSE THE APPLICATION OF THE DOMESTIC SUBSTANTIVE LAWS OF ANY OTHER STATE).


 


SECTION 7.  Any provision of this Supplement held to be invalid, illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity, illegality or unenforceability without affecting the validity, legality and enforceability in such jurisdiction of the remaining provisions hereof and of the Guarantee and Collateral Agreement; and the invalidity of a particular provision in a particular jurisdiction shall not invalidate such provision in any other jurisdiction. The parties hereto shall endeavor in good-faith negotiations to replace the invalid, illegal or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the invalid, illegal or unenforceable provisions.


 


SECTION 8.  All communications and notices hereunder shall be in writing and given as provided in Section 7.01 of the Guarantee and Collateral Agreement.


 


SECTION 9.  The New Subsidiary agrees to reimburse the Administrative Agent for its reasonable out-of-pocket expenses in connection with this Supplement, including the reasonable fees, disbursements and other charges of counsel for the Administrative Agent.


 


IN WITNESS WHEREOF, the New Subsidiary and the Administrative Agent have duly executed this Supplement to the Guarantee and Collateral Agreement as of the day and year first above written.


 




  





2











  











 



	
[NAME OF NEW SUBSIDIARY]


	
by                                                                               


	
Name:

	  
	
Title:

	  
	  	  
	  	  
	
Legal Name:


Jurisdiction of


Formation:


Location of Chief


Executive Office:












 



	
BANK OF AMERICA, N.A, as,


Administrative Agent,


	
by                                                                               


	
Name:

	  
	
Title:

	  
	  	  


















  





3











  


















 


CERTIFICATE OF ACKNOWLEDGMENT


 


COMMONWEALTH OR STATE OF                                              ) 


)  ss.


COUNTY OF                                                                                     )







On this ___ day of __________________, 20__, before me, the undersigned notary public, personally appeared ______________________, proved to me through satisfactory evidence of identification, which were _____________________________, to be the person whose name is signed on the preceding or attached document, and acknowledged to me that (he)(she) signed it voluntarily for its stated purpose (as ______________ for __________________, a _______________________).


 

















______________________________


(official signature and seal of notary)







My commission expires:




















  





  











  













Schedule I


to Supplement No.___ to the


Guarantee and


Collateral Agreement


 


LOCATION OF ARTICLE 9 COLLATERAL


 



	
Description

	
Location


	  	  
	  	  













  





  











  













Schedule II to


Supplement No. __


to the Guarantee and


Collateral Agreement


 


PLEDGED STOCK


 



	
Number of


Issuer Certificate

	
Registered


Owner

	
Number and Class


of Equity Interest

	
Percentage of


Equity Interests


	  	  	  	  
	  	  	  	  










 







 


PLEDGED DEBT SECURITIES


 



	
Issuer

	
Principal


Amount

	
Date of Note

	
Maturity Date


	  	  	  	  
	  	  	  	  















OTHER PROPERTY










  





  











  













EXHIBIT II


to Guarantee and


Collateral Agreement


[FORM OF] PERFECTION CERTIFICATE


 


Reference is made to the Second Amended and Restated Credit Agreement dated as of September 30, 2010 (as amended, amended and restated, supplemented, waived or otherwise modified from time to time, the “Credit Agreement”), among Denny’s, Inc., a California corporation (“Denny’s”), Denny’s Realty, LLC, a Delaware limited liability company (“Denny’s Realty” and, together with Denny’s, collectively, the “Borrowers” and each, individually, a “Borrower”), Denny’s Corporation, a Delaware corporation (“Parent”), Denny’s Holdings, Inc., a New York corporation (“Denny’s Holdings”), DFO, LLC, a Delaware limited liability company (“DFO” and together with Borrowers, Parent and Denny’s Holdings, collectively the “Grantors” and each, individually, a “Grantor”), each lender from time to time party hereto (collectively, the “Lenders” and each individually, a “Lender”), and Bank of America, N.A., as Administrative Agent and L/C Issuer.  Capitalized terms used but not defined herein shall have the meanings assigned to such terms in the Credit Agreement.


 


The undersigned, each a Responsible Officer of each of the respective Grantors, hereby certifies to the Administrative Agent and each other Secured Party as follows:


 


1.           Names.  (a)   The exact legal name of each Grantor, as such name appears in its respective certificate of formation, is as follows:


 







 


(b)  Set forth below is each other legal name each Grantor has had in the past five years, together with the date of the relevant change:


 







 


(c)  Except as set forth in Schedule 1 hereto, no Grantor has changed its identity or corporate structure in any way within the past five years.  Changes in identity or corporate structure would include mergers, consolidations and acquisitions, as well as any change in the form, nature or jurisdiction of organization.  If any such change has occurred, include in Schedule 1 the information required by Sections 1 and 2 of this certificate as to each acquiree or constituent party to a merger or consolidation.


 







 


(d)  The following is a list of all other names (including trade names or similar appellations) used by each Grantor or any of its divisions or other business units in connection with the conduct of its business or the ownership of its properties at any time during the past five years:


 







 


(e)  Set forth below is the Organizational Identification Number, if any, issued by the jurisdiction of formation of each Grantor that is a registered organization:


 







 


(f)  Set forth below is the Federal Taxpayer Identification Number of each Grantor:


 


 




  





  











  






 







2.  Current Locations.  (a)  The chief executive office of each Grantor is located at the address set forth opposite its name below:

















(b)  Set forth below opposite the name of each Grantor are all locations where such Grantor maintains any books or records relating to any Accounts Receivable or General Intangibles (with each location at which Chattel Paper, if any, is kept being indicated by an “*”):












 


(c)  The jurisdiction of formation of each Grantor that is a registered organization is set forth opposite its name below:


 







(d) Set forth below opposite the name of each Grantor are all the locations where such Grantor maintains any Inventory or Equipment or other Collateral not identified above:












(e)  Set forth below opposite the name of each Grantor are all the places of business of such Grantor not identified in paragraph (a), (b), (c) or (d) above:












(f) Set forth below opposite the name of each Grantor are the names and addresses of all Persons other than such Grantor that have possession of any of the Collateral of such Grantor:












3.  Unusual Transactions.  All Accounts have been originated by the Grantors and all Inventory has been acquired by the Grantors in the ordinary course of business.


 


4.  File Search Reports.  File search reports have been obtained from each Uniform Commercial Code filing office identified with respect to such Grantor in Section 2 hereof, and such search reports reflect no liens against any of the Collateral other than those permitted under the Credit Agreement.


 


5.  UCC Filings.  UCC Financing statements in substantially the form of Schedule 5 hereto have been prepared for filing in the proper Uniform Commercial Code filing office in the jurisdiction in which each Grantor is located and, to the extent any of the Collateral is comprised of fixtures, timber to be cut or as extracted Collateral from the wellhead or minehead, in the proper local jurisdiction, in each case as set forth with respect to such Grantor in Section 2 hereof.


 


6.  Schedule of Filings.  Attached hereto as Schedule 6 is a schedule setting forth, with respect to the filings described in Section 5 above, each filing and the filing office in which such filing is to be made.


 


7.  Stock Ownership and other Equity Interests.  Attached hereto as Schedule 7 is a true and correct list of all the issued and outstanding stock, partnership interests, limited liability company membership interests or other equity interests of each of the Grantors and each Subsidiary of each of the Grantors and the record and beneficial owners of such stock, partnership interests, membership interests or other equity interests. Also set forth on Schedule 7 is each equity investment of each of the Grantors that represents 50% or less of the equity of the entity in which such investment was made.


 


 




  





2











  






 


8.  Debt Instruments.  Attached hereto as Schedule 8 is a true and correct list of all promissory notes and other evidence of indebtedness held by each of the Grantors that are required to be pledged under the Guarantee and Collateral Agreement, including all intercompany notes between each of the Grantors and any of their respective Subsidiaries and any Subsidiary of a Grantor and any other Subsidiary of such Grantor.


 


9.  Advances.  Attached hereto as Schedule 9 is (a) a true and correct list of all advances made by each of the Grantors to any Subsidiary of such Grantor made by any Subsidiary of a Grantor to such Grantor or to any other Subsidiary of such Grantor (other than those identified on Schedule 8), which advances will be on and after the date hereof evidenced by one or more intercompany notes pledged to the Administrative Agent under the Guarantee and Collateral Agreement and (b) a true and correct list of all unpaid intercompany transfers of goods sold and delivered by or to each of the Grantors or any Subsidiary of any Grantor.


 


10.  Mortgage Filings.  Attached hereto as Schedule 10 is a schedule setting forth, with respect to each Mortgaged Property, (a) the exact name of the Person that owns such property as such name appears in its certificate of incorporation or other organizational document, (b) if different from the name identified pursuant to clause (a), the exact name of the current record owner of such property reflected in the records of the filing office for such property identified pursuant to the following clause and (c) the filing office in which a Mortgage with respect to such property must be filed or recorded in order for the Administrative Agent to obtain a perfected security interest therein.


 


11.  Intellectual Property.  Attached hereto as Schedule 11(A) in proper form for filing with the United States Patent and Trademark Office and United States Copyright Office is a schedule setting forth all of each Grantor’s domestic Intellectual Property (as defined in the Guarantee and Collateral Agreement), including the name of the registered owner, the registration number and the expiration date of each Patent, Patent License, Trademark, Trademark License, Copyright and Copyright License (each as defined in the Guarantee and Collateral Agreement) owned by any Grantor. Attached hereto as Schedule 11(B) is a schedule setting forth all of each Grantor’s foreign Intellectual Property (as defined in the Guarantee and Collateral Agreement), including the name of the registered owner, the registration number and the expiration date of each Patent, Patent License, Trademark, Trademark License, Copyright and Copyright License (each as defined in the Guarantee and Collateral Agreement) owned by any Grantor.


 


12.  Commercial Tort Claims.  Attached hereto as Schedule 12 is a true and correct list of commercial tort claims in excess of $1,000,000 held by any Grantor, including a brief description thereof.


 


13.  Deposit Accounts.  Attached hereto as Schedule 13 is a true and correct list of deposit accounts maintained by each Grantor, including the name and address of the depositary institution, the type of account, and the account number.


 










  





3











  













IN WITNESS WHEREOF, the undersigned have duly executed this certificate on this ___ day of September, 2010.


 








	
DENNY'S, INC.


by


 


 


Name: Timothy E. Flemming


Title: Senior Vice President, General Counsel and Chief Legal Officer


	
DENNY'S REALTY, LLC


a Delaware limited liability company


 


By: DFO, LLC


Its: Sole Member


 


By: Denny's, Inc.


Its: Sole Member


 


by


 


 


Name: Timothy E. Flemming


Title: Senior Vice President, General Counsel and Chief Legal Officer


	
DENNY’S CORPORATION


by


 


 


 


Name: Timothy E. Flemming


Title: Senior Vice President, General Counsel and Chief Legal Officer


	
DFO, LLC


a Delaware limited liability company


 


By:           Denny's, Inc.


Its:           Sole Member


 


by


 


 


Name: Timothy E. Flemming


Title: Senior Vice President, General Counsel and Chief Legal Officer


	
DENNY’S HOLDINGS, INC.


 


By


 


 


Name: Nicholas J. Fortuna


Title: Vice President and Secretary

















 





  





4











  
















SCHEDULE 1


 


Changes in Corporate Identity


 


 







 










  





5











  













SCHEDULE 5


 


Form of UCC Financing Statement


 










  





6











  













SCHEDULE 6


 


Schedule of Filings


 










  





7











  













SCHEDULE 7


 


Stock Ownership and Other Equity Interests


 







 










  





8











  













SCHEDULE 8


 


Debt Instruments


 







 










  





9











  













SCHEDULE 9


 


Advances


 










  





10











  













SCHEDULE 10


 


Mortgage Filings


 







 










  





11











  













SCHEDULE 11(A)


 


Intellectual Property – USA


 







 










  





12











  













SCHEDULE 11(B)


 


Intellectual Property - International


 










  





13











  













SCHEDULE 12


 


Commercial Tort Claims


 







 










  





14











  













SCHEDULE 13


 


Deposit Accounts


 







 







 















  





15