EX-10.2



 







Exhibit 10.2




GUARANTEE AND COLLATERAL AGREEMENT



dated and effective as of



October 17, 2005,



among




FR X CHART HOLDINGS LLC,

as Guarantor and Pledgor,




CI ACQUISITION, INC.,

as Borrower,




each Subsidiary Loan Party

identified herein,



and




CITICORP NORTH AMERICA, INC.,

as Collateral Agent




 









 








TABLE OF CONTENTS




Page



Article I



Definitions




	 	 	 	 	 
	SECTION 1.01. Credit Agreement

	 	 	1	 
	 
	 	 	 	 
	SECTION 1.02. Other Defined Terms

	 	 	1	 






Article II




Guarantee




	 	 	 	 	 
	SECTION 2.01. Guarantee

	 	 	4	 
	 
	 	 	 	 
	SECTION 2.02. Guarantee of Payment

	 	 	5	 
	 
	 	 	 	 
	SECTION 2.03. No Limitations, etc.

	 	 	5	 
	 
	 	 	 	 
	SECTION 2.04. Reinstatement 

	 	 	6	 
	 
	 	 	 	 
	SECTION 2.05. Agreement To Pay; Subrogation 

	 	 	7	 
	 
	 	 	 	 
	SECTION 2.06. Information 

	 	 	7	 
	 
	 	 	 	 
	SECTION 2.07. Maximum Liability

	 	 	7	 
	 
	 	 	 	 
	SECTION
2.08. Payments Free and Clear of Taxes, Etc. 

	 	 	7	 






Article III




Pledge of Securities




	 	 	 	 	 
	SECTION 3.01. Pledge

	 	 	7	 
	 
	 	 	 	 
	SECTION 3.02. Delivery of the Pledged Collateral

	 	 	8	 
	 
	 	 	 	 
	SECTION 3.03. Representations, Warranties and Covenants

	 	 	9	 






	 	 	 	 	 
	SECTION 3.04. Certification of Limited Liability Company and
Limited Partnership Interests

	 	 	10	 
	 
	 	 	 	 
	SECTION 3.05. Registration in Nominee Name; Denominations 

	 	 	11	 
	 
	 	 	 	 
	SECTION 3.06. Voting Rights; Dividends and Interest, etc.

	 	 	11	 






-i-









 





Article IV




Security Interests in Personal Property




	 	 	 	 	 
	SECTION 4.01. Security Interest

	 	 	13	 
	 
	 	 	 	 
	SECTION 4.02. Representations and Warranties 

	 	 	14	 
	 
	 	 	 	 
	SECTION 4.03. Covenants

	 	 	17	 
	 
	 	 	 	 
	SECTION 4.04. Other Actions 

	 	 	19	 
	 
	 	 	 	 
	SECTION 4.05. Covenants Regarding Patent, Trademark and Copyright Collateral

	 	 20







Article V




Remedies




	 	 	 	 	 
	SECTION 5.01. Remedies Upon Default

	 	 	22	 
	 
	 	 	 	 
	SECTION 5.02. Application of Proceeds

	 	 	23	 
	 
	 	 	 	 
	SECTION 5.03. Grant of License To Use Intellectual Property

	 	 	24	 
	 
	 	 	 	 
	SECTION 5.04. Securities Act, etc. 

	 	 	24	 
	 
	 	 	 	 
	SECTION 5.05. Registration, etc.

	 	 	25	 






Article VI




Indemnity, Subrogation and Subordination




	 	 	 	 	 
	SECTION
6.01. Indemnity and Subrogation 
	 	 	26	 
	 

	SECTION
6.02.  Contribution and Subrogation 
	 	 	26	 
	 

	SECTION
6.03.  Subordination  
	 	 	26	 






Article VII




Miscellaneous




	 	 	 	 	 
	SECTION 7.01. Notices

	 	 	27	 
	 
	 	 	 	 
	SECTION 7.02. Security Interest Absolute

	 	 	27	 
	 
	 	 	 	 
	SECTION 7.03. Binding Effect; Several Agreement 

	 	 	27	 
	 
	 	 	 	 
	SECTION 7.04. Successors and Assigns

	 	 	27	 






-ii-









 






	 	 	 	 	 
	SECTION 7.05. Collateral Agent’s Fees and Expenses; Indemnification

	 	 	27	 
	 
	 	 	 	 
	SECTION 7.06. Collateral Agent Appointed Attorney-in-Fact

	 	 	28	 
	 
	 	 	 	 
	SECTION 7.07. GOVERNING LAW 

	 	 	28	 
	 
	 	 	 	 
	SECTION 7.08. Waivers; Amendment

	 	 	29	 
	 
	 	 	 	 
	SECTION 7.09. WAIVER OF JURY TRIAL

	 	 	29	 
	 
	 	 	 	 
	SECTION 7.10. Severability

	 	 	29	 
	 
	 	 	 	 
	SECTION 7.11. Counterparts 

	 	 	30	 
	 
	 	 	 	 
	SECTION 7.12. Headings

	 	 	30	 
	 
	 	 	 	 
	SECTION 7.13. Jurisdiction; Consent to Service of Process

	 	 	30	 
	 
	 	 	 	 
	SECTION 7.14. Termination or Release

	 	 	30	 
	 
	 	 	 	 
	SECTION 7.15. Additional Subsidiaries

	 	 	31	 
	 
	 	 	 	 
	SECTION 7.16. Right of Set-off 

	 	 	31	 
	 
	 	 	 	 
	SECTION 7.17. Credit Agreement

	 	 	31	 






	 	 	 
	Schedules
	 	 
	Schedule I

	 	Subsidiary Loan Parties
	Schedule II

	 	Pledged Stock; Pledged Debt Securities
	Schedule III

	 	Intellectual Property
	Schedule IV

	 	Limited Liability Company Interests
	Schedule V

	 	Commercial Tort Claims
	Schedule VI

	 	Partnership Interests
	 
	 	 
	Exhibits
	 	 
	Exhibit I

	 	Form of Supplement to the Guarantee and Collateral Agreement
	Exhibit II

	 	Form of Perfection Certificate
	Exhibit III

	 	Form of Intercompany Note







-iii-









 








          GUARANTEE AND COLLATERAL AGREEMENT dated and effective as of October 17, 2005 (this
“Agreement”), among FR X CHART HOLDINGS LLC, a Delaware limited liability company
(“Holdings”), CI ACQUISITION, INC., a Delaware corporation (“Acquisition Corp.” or the
“Borrower”), each Subsidiary Loan Party listed on the signature page and any other entity
that becomes a party pursuant to Section 7.15 (each, a “Subsidiary Loan Party”) and
CITICORP NORTH AMERICA, INC. (“CNAI”), as collateral agent (in such capacity, the
“Collateral Agent”) for the Secured Parties (as defined below).




          Reference is made to the Credit Agreement dated as of October 17, 2005 (as amended, restated,
supplemented, waived or otherwise modified from time to time, the “Credit Agreement”),
among Holdings, the Borrower, the lenders party thereto from time to time (the “Lenders”),
CNAI, as Administrative Agent and as Collateral Agent for the Lenders, MORGAN STANLEY SENIOR
FUNDING, INC. (“MS”), as Syndication Agent, CITIGROUP GLOBAL MARKETS INC. and MS, as Joint
Lead Arrangers and Joint Book Managers and Natexis Banques Populaires and Sovereign Bank, as
Co-Documentation Agents.




          The Lenders have agreed to extend credit to the Borrower (as defined in the Credit Agreement)
subject to the terms and conditions set forth in the Credit Agreement. The obligations of the
Lenders to extend such credit are conditioned upon, among other things, the execution and delivery
of this Agreement. Holdings and the Subsidiary Loan Parties are Affiliates of the Borrower, will
derive substantial benefits from the extension of credit to the Borrower pursuant to the Credit
Agreement and are willing to execute and deliver this Agreement in order to induce the Lenders to
extend such credit. Accordingly, the parties hereto 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 respective meanings assigned thereto 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
have the meanings specified below:




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




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




          “Cash Management Arrangement” means existing and future indebtedness and liabilities
of every kind, nature and character, direct or indirect, absolute or contingent, liquidated




 









 







or unliquidated, voluntary or involuntary, of each Loan Party to a Lender howsoever associated with
any cash management services that are provided by such Lender to or for the benefit of such Loan
Party (including all renewals, extensions and modifications thereof and all costs, attorneys’ fees
and expenses incurred by such Lender in connection with the collection or enforcement thereof).




          “Collateral” means Article 9 Collateral and Pledged Collateral.




          “Control Agreement” means a securities account control agreement or commodity account
control agreement, as applicable, in form and substance reasonably satisfactory to the Collateral
Agent.




          “Copyrights” means all of the following: (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, 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.




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




          “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 all choses in action and causes of action and all other intangible personal property of
any Guarantor of every kind and nature (other than Accounts) now owned or hereafter acquired by any
Guarantor, including corporate or other business records, indemnification claims, contract rights
(including rights under leases, whether entered into as lessor or lessee, Swap Agreements, Cash
Management Arrangements (as defined above) and other agreements), Intellectual Property, goodwill,
registrations, franchises, tax refund claims and any letter of credit, guarantee, claim, security
interest or other security held by or granted to any Guarantor to secure payment by an Account
Debtor of any of the Accounts.




          “Guaranteed Obligations” means (a) the Loan Document Obligations and (b) the due and
punctual payment and performance of all obligations of each Loan Party under each Swap Agreement
and each Cash Management Arrangement (including interest accruing during the pendency of any
bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or
allowable in such proceeding) that (i) is in effect on the Closing Date with a counterparty that is
a Lender or an Affiliate of a Lender as of the Closing Date or (ii) is entered into after the
Closing Date with any counterparty that is a Lender or an Affiliate of a Lender at the time such
Swap Agreement or Cash Management Arrangement is entered into.




          “Guarantor Intellectual Property” means all Intellectual Property now or hereafter
owned or licensed by any Guarantor.




 









 








          “Guarantors” means Holdings, the Borrower and each Subsidiary Loan Party.




          “Intellectual Property” means all Patents, Copyrights, Trademarks, IP Agreements,
trade secrets, domain names, and all inventions, designs, confidential or proprietary technical and
business information, know-how, show-how and other data or information and all related
documentation.




          “Intercompany Note” shall mean a promissory note substantially in the form of
Exhibit III.




          “IP Agreements” means all agreements granting to or receiving from a third party any
rights to Intellectual Property to which any Guarantor, now or hereafter, is a party.




          “Loan Document Obligations” means (a) the due and punctual payment by the Borrower of
(i) the unpaid 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 made to the Borrower, 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 Borrower under the Credit Agreement in respect of any Letter of
Credit, when and as due, including payments in respect of reimbursement of disbursements, interest
thereon (including interest accruing during the pendency of any bankruptcy, insolvency,
receivership or other similar proceeding, regardless of whether allowed or allowable in such
proceeding) and obligations to provide cash collateral and (iii) all other monetary obligations of
the Borrower 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, indirect, contingent, fixed or
otherwise (including interest incurred during the pendency of any bankruptcy, insolvency,
receivership or other similar proceeding, regardless of whether allowed or allowable in such
proceeding) and (b) the due and punctual performance of all other obligations of the Borrower under
or pursuant to the Credit Agreement and each of the other Loan Documents (other than the Guaranteed
Obligations referred to in clause
(b) of the definition of “Guaranteed Obligations”) (including interest incurred during the
pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of
whether allowed or allowable in such proceeding).




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




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




          “Patents” means all of the following: (a) all letters patent of the United States or
the equivalent thereof in any other country, and all applications for letters patent of the United
States or the equivalent thereof in any other country, including those listed on Schedule
III, and (b) all reissues, continuations, divisions, continuations-in-part 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 a Financial Officer of the Borrower.




          “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
certificated 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.




          “Pledgor” shall mean each Guarantor.




          “Secured Parties” means (a) the Lenders, (b) the Administrative Agent, (c) the
Collateral Agent, (d) each Issuing Bank, (e) each counterparty to any Swap Agreement entered into
with a Loan Party the obligations under which constitute Guaranteed Obligations, (f) each
counterparty to any Cash Management Arrangement entered into with a Loan Party the obligations
under which constitute Guaranteed Obligations, (g) the beneficiaries of each indemnification
obligation undertaken by any Loan Party under any Loan Document and (h) the successors and
permitted assigns of each of the foregoing.




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




          “Trademarks” means all of the following: (a) all trademarks, service marks, corporate
names, company names, business names, trade dress, logos, other source or business identifiers,
designs and general intangibles of like nature, now existing or hereafter adopted or acquired, all
registrations thereof (if any), and all registration and recording applications filed in connection
therewith 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 renewals
thereof, including those listed on Schedule III (provided that no security interest shall
be granted in United States intent-to-use trademark applications to the extent that, and solely
during the period in which, the grant of a security interest therein would impair the validity or
enforceability of such intent-to-use trademark applications under applicable federal law) and (b)
all goodwill associated therewith or symbolized thereby.




ARTICLE II



GUARANTEE




          SECTION 2.01. Guarantee. Each Guarantor absolutely, irrevocably and
unconditionally guarantees, jointly with the other Guarantors and severally, as a primary
obligor and not merely as a surety, the due and punctual payment and performance of the Guaranteed
Obligations. Each Guarantor further agrees that the Guaranteed Obligations may be extended,
modified, substituted, amended 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 Guaranteed Obligation. Each Guarantor unconditionally and irrevocably waives notice of
nonperformance, acceleration, presentment to, demand of payment from and protest to the Borrower or
any other Loan Party of any of the Guaranteed 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, whether at scheduled maturity or on any date
of a required prepayment or by acceleration, demand or otherwise, and not of collection, and waives
any right to require that any resort be had by the Collateral Agent or any other Secured Party to
any security held for the payment of the Guaranteed Obligations or to any balance of any deposit
account or credit on the books of the Collateral Agent or any other Secured Party in favor of the
Borrower or any other person.




     SECTION 2.03. No Limitations, etc. (a) Except for termination of a Guarantor’s
obligations hereunder as expressly provided for in Section 7.14, 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 Guaranteed 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, the Collateral 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 exchange, substitution,
release or any impairment of, any Collateral or any other collateral securing the
Guaranteed Obligations;




     (iv) any default, failure or delay, willful or otherwise, in the performance of the
Guaranteed 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 Guaranteed
Obligations);




     (vi) any illegality, lack of validity or enforceability of any Guaranteed Obligation;




     (vii) any change in the corporate existence, structure or ownership of the Borrower,
or any insolvency, bankruptcy, reorganization or other similar proceeding



 









 






affecting the
Borrower or its assets or any resulting release or discharge of any Guaranteed Obligation;




     (viii) the existence of any claim, set-off or other rights that the Guarantor may have
at any time against the Borrower, the Collateral Agent, or any other corporation or person,
whether in connection herewith or any unrelated transactions, provided that nothing herein
will prevent the assertion of any such claim by separate suit or compulsory counterclaim;
and




     (ix) any other circumstance (including without limitation, the expiration of any
statute of limitations) or any existence of or reliance on any representation by the
Collateral Agent that might otherwise constitute a defense to, or a legal or equitable
discharge of, the Borrower or the Guarantor or any other guarantor or surety.


Each Guarantor expressly authorizes the Secured Parties to take and hold security for the payment
and performance of the Guaranteed 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 Guaranteed
Obligations, all without affecting the obligations of any Guarantor hereunder. Each Guarantor
acknowledges that its guarantee is continuing in nature and applies to all Guaranteed Obligations,
whether existing now or in the future. Each Guarantor acknowledges that it will receive
substantial direct and indirect benefits from the financing arrangements contemplated by the Loan
Documents and that the waivers set forth in this Article II are knowingly made in contemplation of
such benefits.




     (b) To the fullest extent permitted by applicable law, each Guarantor waives any defense based
on or arising out of any defense of the Borrower or any other Loan Party or the unenforceability of
the Guaranteed Obligations or any part thereof from any cause, or the cessation from any cause of
the liability of the Borrower or any other Loan Party, other than the indefeasible payment in full
in cash of all the Guaranteed Obligations. The Collateral Agent and the other Secured Parties may,
at their election, foreclose on any security held by one or more of them by one or more judicial or
nonjudicial sales, accept an assignment of any such security in lieu of foreclosure, compromise or
adjust any part of the Guaranteed Obligations, make any other accommodation with the Borrower or
any other Loan Party or exercise any other right or remedy available to them against the Borrower
or any other Loan Party, without affecting or impairing in any way the liability of any Guarantor
hereunder except to the extent the Guaranteed Obligations have been fully and 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 Borrower or any other Loan Party, as the case may be, or any security.




     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 Guaranteed Obligation is rescinded or must otherwise be restored by the
Administrative Agent or any other Secured Party upon the bankruptcy or reorganization of the
Borrower, 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 Collateral Agent or any other Secured Party has at law or
in equity against any Guarantor by virtue hereof, upon the failure of the Borrower or any other
Loan Party to pay any Guaranteed 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 Collateral Agent for distribution to the
applicable Secured Parties in cash the amount of such unpaid Guaranteed Obligation. Upon payment
by any Guarantor of any sums to the Collateral Agent as provided above, all rights of such
Guarantor against the Borrower, or other
Loan Party 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 financial condition and assets of the Borrower and each other Loan
Party, and of all other circumstances bearing upon the risk of nonpayment of the Guaranteed
Obligations and the nature, scope and extent of the risks that such Guarantor assumes and incurs
hereunder, and agrees that none of the Collateral 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.




          SECTION 2.07. Maximum Liability. Anything herein or in any other Loan Document to the
contrary notwithstanding, the maximum liability of each Guarantor (other than Holdings and the
Borrower) hereunder and under the other Loan Documents shall in no event exceed the amount which
can be guaranteed by such Guarantor under applicable federal and state laws relating to the
insolvency of debtors (after giving effect to the right of contribution established in Section
6.02).




          SECTION 2.08. Payments Free and Clear of Taxes, Etc. (a) Any and all payments made by
any Guarantor under or in respect of this Agreement or any other Loan Document shall be made, in
accordance with Section 2.17 of the Credit Agreement.




ARTICLE III



PLEDGE OF SECURITIES




          SECTION 3.01. Pledge. As security for the payment or performance, as the case may be,
in full of the Guaranteed Obligations, each Pledgor hereby assigns and pledges to the Collateral
Agent, its successors and assigns, for the ratable benefit of the Secured Parties, and hereby
grants to the Collateral Agent, its successors and assigns, for the ratable benefit of the Secured
Parties, a security interest in all of such Pledgor’s right, title and interest in, to and under
(a) the Equity Interests of any Material Subsidiary directly owned by it as of the Closing Date and
any other Equity Interests of any Material Subsidiary directly owned in the future by such Pledgor
and any 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 any Domestic Subsidiary
substantially all of whose assets consist of the Equity Interests in “controlled foreign companies”
under Section 957 of the Code, (ii) any Equity Interests of any Subsidiary to the extent that, as of




 









 







the Closing Date and for so long
as, a pledge of such Equity Interests would violate a contractual obligation binding on the issuer
or holder of such Equity Interests, (iii) any Equity Interests of any Subsidiary acquired after the
Closing Date in accordance with the Credit Agreement if, and to the extent that, and for so long as
(A) pledging such Equity Interests would violate applicable law or a contractual obligation binding
on the issuer or holder of such Equity Interests and (B) such law or obligation existed at the time
of the acquisition thereof and was not created or made binding on such Equity Interests in
contemplation of or in connection with the acquisition of such Subsidiary, provided that
the foregoing clause (B) shall not apply in the case of a joint venture, including a joint venture
that is a Subsidiary, and, (iv) Equity Interests in any Foreign Subsidiary if the Borrower
demonstrates to the Collateral Agent and the Collateral Agent determines (in its reasonable
discretion) that the cost of pledging the Equity Interests in such Foreign Subsidiary exceeds the
value of the security offered thereby; provided that, upon the reasonable request of the
Collateral Agent, Borrower shall, and shall cause any applicable Subsidiary to, use commercially
reasonable efforts to have waived or eliminated any contractual obligation of the types described
in clauses (ii) and (iii) above, other than those set forth in a joint venture agreement to which
Holdings or any Subsidiary is a party; provided further, that Pledged Stock shall
include the interests listed on Schedule II; (b)(i) the debt securities for borrowed money
having an aggregate principal amount in excess of $7,500,000 (other than (A) intercompany current
liabilities incurred in the ordinary course of business in connection with the cash management
operations of Holdings, the Borrower and the Subsidiaries and (B) any debt securities held by such
Pledgor as of the Closing Date “Material Pledged Debt Securities”), (ii) any Material
Pledged Debt Securities in the future issued to such Pledgor and (iii) the promissory notes and any
other instruments, if any, evidencing such Material Pledged Debt Securities (the “Pledged Debt
Securities”); provided, that the Pledged Debt Securities shall include the debt
securities listed on Schedule II; (c) subject to Section 3.06, 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; (d) all
rights and privileges of such Pledgor with respect to the securities and other property referred to
in clauses (a), (b) and (c) above; and (e) all proceeds of any of the foregoing (the items referred
to in clauses (a) through (e) 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 Collateral Agent, its
successors and assigns, for the ratable 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 Pledgor agrees promptly
to deliver or cause to be delivered to the Collateral Agent, for the ratable benefit of the Secured
Parties, any and all Pledged Stock and any and all Pledged Debt Securities to the extent such
Pledged Securities, in
the case of promissory notes or other instruments evidencing Indebtedness, are required to be
delivered pursuant to paragraph (b) of this Section 3.02.




          (b) Each Pledgor will cause any Material Pledged Debt Securities owed to such Pledgor by any
person to be evidenced by a duly executed promissory note that is pledged and delivered to the
Collateral Agent, including the Intercompany Note, for the ratable benefit of




 









 







the Secured Parties,
pursuant to the terms hereof. To the extent any such promissory note is a demand note, each
Pledgor party thereto agrees, if requested by the Collateral Agent, to immediately demand payment
thereunder upon an Event of Default specified under Sections 7.01(b), (c), (f), (h) or (i) of the
Credit Agreement.




          (c) Upon delivery to the Collateral Agent, (i) any Pledged Securities required to be delivered
pursuant to the foregoing paragraphs (a) and (b) of this Section 3.02 (other than the Intercompany
Note) shall be accompanied by stock powers or note powers, as applicable, duly executed in blank or
other instruments of transfer reasonably satisfactory to the Collateral Agent and by such other
instruments and documents as the Collateral Agent may reasonably request and (ii) all other
property composing part of the Pledged Collateral delivered pursuant to the terms of this Agreement
shall be accompanied to the extent necessary to perfect the security interest in or allow
realization on the Pledged Collateral by proper instruments of assignment duly executed by the
applicable Pledgor and such other instruments or documents (including issuer acknowledgments in
respect of uncertificated securities) as the Collateral Agent may reasonably request. 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 Pledgors, jointly and
severally, represent, warrant and covenant to and with the Collateral Agent, for the ratable
benefit of the Secured Parties, that:




          (a) Schedule II correctly sets forth as of the Closing Date the (x) name and
jurisdiction of each issuer of, and the ownership interest (including percentage owned and number
of shares or units) of each Pledgor in, the Pledged Stock and (y) amount and obligor under the
Material Pledged Debt Securities;




          (b) the Pledged Stock and Pledged Debt Securities (solely with respect to Pledged Debt
Securities issued by a person that is not a Subsidiary of Holdings or an Affiliate of any such
Subsidiary, to each Pledgor’s knowledge) have been duly and validly authorized and issued by the
issuers thereof and (i) in the case of Pledged Stock, are fully paid and nonassessable and (ii) in
the case of Pledged Debt Securities (solely with respect to Pledged Debt Securities issued by a
person that is not a Subsidiary of Holdings or an Affiliate of any such Subsidiary, to each
Pledgor’s knowledge) are legal, valid and binding obligations of the issuers thereof;




          (c) except for the security interests granted hereunder, each Pledgor (i) is and, subject to
any transfers made in compliance with the Credit Agreement, will continue to be the direct owner,
beneficially and of record, of the Pledged Securities indicated on Schedule II as owned by
such Pledgor, (ii) holds the same free and clear of all Liens, other than Liens permitted under
Section 6.02 of the Credit Agreement, (iii) 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 pursuant to a transaction permitted by the Credit Agreement and other than
Liens permitted under Section 6.02 of the Credit Agreement and (iv) subject to




 









 







the rights of such Pledgor under the Loan Documents to dispose of Pledged Collateral, will defend its title or
interest hereto or therein against any and all Liens (other than Liens permitted under Section 6.02
of the Credit Agreement), however arising, of all persons;




          (d) except for restrictions and limitations imposed by the Loan Documents, securities laws
generally, the laws of any applicable foreign jurisdiction (with respect to Pledged Collateral
pledged after the Closing Date) or otherwise permitted to exist pursuant to the terms of the Credit
Agreement, (i) the Pledged Collateral is and will continue to be freely transferable and assignable
and (ii) 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 Collateral Agent
of rights and remedies hereunder;




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




          (f) except for consents or approvals required by laws of any applicable foreign jurisdiction
(with respect to Pledged Collateral pledged after the Closing Date), no consent or approval of any
Governmental Authority, any securities exchange or any other person was or is necessary to the
validity of the pledge effected hereby (other than such as have been obtained and are in full force
and effect);




          (g) by virtue of the execution and delivery by the Pledgors of this Agreement, when any
Pledged Securities are delivered to the Collateral Agent, for the ratable benefit of the Secured
Parties, in accordance with this Agreement, the Collateral Agent will obtain, for the ratable
benefit of the Secured Parties, 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 Guaranteed
Obligations under the New York UCC, except, in the case of Pledged Securities delivered after the
Closing Date, as provided by the laws of any applicable foreign jurisdiction and subject to Liens
permitted by the Credit Agreement; and




          (h) the pledge effected hereby is effective to vest in the Collateral Agent, for the ratable
benefit of the Secured Parties, the rights of the Pledgors in the Pledged Collateral as set forth
herein, except as provided by the laws of any applicable foreign jurisdiction (with respect to
Pledged Collateral pledged after the Closing Date).




          SECTION 3.04. Certification of Limited Liability Company and Limited Partnership
Interests. Except as provided by the laws of any applicable foreign jurisdiction, each
interest in any limited liability company or limited partnership controlled by any Loan Party and
pledged hereunder shall be represented by a certificate, shall to the extent permitted by
applicable laws 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; provided, however, in the case of (a)
the limited liability company interests set forth on Schedule IV, the Borrower shall cause
such interests to be represented by a certificate, to be a “security” within the meaning of Article
8 of the New York UCC and to be governed by Article 8 of the New York UCC, in each case not later
than 20 Business Days after the Closing Date and (b) that any limited liability company or limited





 









 







partnership that, in either case, is organized under the laws of any state of the United States and
is a Wholly Owned Subsidiary formed or acquired after the Closing Date, the Borrower shall cause
such interests to be represented by a certificate, to be a “security” within the meaning of Article
8 of the New York UCC and to be governed by Article 8 of the New York UCC, in each case not later
than 20 Business Days after the date of formation or acquisition thereof, as applicable.




     SECTION 3.05. Registration in Nominee Name; Denominations. The Collateral Agent, on
behalf of the Secured Parties, shall have the right (in its sole and absolute discretion) to hold
the Pledged Securities in the name of the applicable Pledgor, endorsed or assigned in blank or in
favor of the Collateral Agent or, if an Event of Default shall have occurred and be continuing, in
its own name as pledgee or the name of its nominee (as pledgee or as sub-agent). Each Pledgor will
promptly give to the Collateral Agent copies of any notices or other communications received by it
with respect to Pledged Securities registered in the name of such Pledgor. If an Event of Default
shall have occurred and be continuing, the Collateral Agent shall have the right to exchange the
certificates representing Pledged Securities for certificates of smaller or larger denominations
for any purpose consistent with this Agreement. Each Pledgor shall use its commercially reasonable
efforts to cause any Loan Party that is not a party to this Agreement to comply with a request by
the Collateral Agent, pursuant to this Section 3.05, to exchange certificates representing Pledged
Securities of such Loan Party for certificates of smaller or larger denominations.




     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 Pledgor 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 Collateral Agent or the other Secured Parties under this Agreement,
the Credit Agreement or any other Loan Document or the ability of the Secured Parties to
exercise the same.




     (ii) The Collateral Agent shall promptly execute and deliver to each Pledgor, or cause
to be executed and delivered to such Pledgor, all such proxies, powers of attorney and
other instruments as such Pledgor may reasonably request for the purpose of enabling such
Pledgor to exercise the voting and/or consensual rights and powers it is entitled to
exercise pursuant to subparagraph (i) above.




     (iii) Each Pledgor 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 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 Pledgor, shall not be
commingled by such Pledgor with any of its other funds or property but shall be held
separate and apart therefrom, shall be held in trust for the benefit of the Collateral
Agent, for the ratable benefit of the Secured Parties, and shall be forthwith delivered to
the Collateral Agent, for the ratable benefit of the Secured Parties, in the same form as
so received (endorsed in a manner reasonably satisfactory to the Collateral Agent).



     (b) Upon the occurrence and during the continuance of an Event of Default and after notice by
the Collateral Agent to the relevant Pledgors of the Collateral Agent’s intention to exercise its
rights hereunder, except as provided by the laws of any applicable foreign jurisdiction, all rights
of any Pledgor to dividends, interest, principal or other distributions that such Pledgor is
authorized to receive pursuant to paragraph (a)(iii) of this Section 3.06 shall cease, and all such
rights shall thereupon become vested, for the ratable benefit of the Secured Parties, in the
Collateral 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 Pledgor contrary to the provisions of this Section 3.06 shall
not be commingled by such Pledgor with any of its other funds or property but shall be held
separate and apart therefrom, shall be held in trust for the benefit of the Collateral Agent, for
the ratable benefit of the Secured Parties, and shall be forthwith delivered to the Collateral
Agent, for the ratable benefit of the Secured Parties, in the same form as so received (endorsed in
a manner reasonably satisfactory to the Collateral Agent). Any and all money and other property
paid over to or received by the Collateral Agent pursuant to the provisions of
this paragraph (b) shall be retained by the Collateral Agent in an account to be established
by the Collateral Agent upon receipt of such money or other property and shall be applied in
accordance with the provisions of Section 5.02. After all Events of Default have been cured or
waived and the Borrower has delivered to the Collateral Agent a certificate to that effect, the
Collateral Agent shall promptly repay to each Pledgor (without interest) all dividends, interest,
principal or other distributions that such Pledgor would otherwise be permitted to retain pursuant
to the terms of paragraph (a)(iii) of this Section 3.06 and that remain in such account.




     (c) Upon the occurrence and during the continuance of an Event of Default and after notice by
the Collateral Agent to the relevant Pledgors of the Collateral Agent’s intention to exercise its
rights hereunder, except as provided by the laws of any applicable foreign jurisdiction, all rights
of any Pledgor to exercise the voting and/or consensual rights and powers it is entitled to
exercise pursuant to paragraph (a)(i) of this Section 3.06, and the obligations of the Collateral
Agent under paragraph (a)(ii) of this Section 3.06, shall cease, and all such rights shall
thereupon become vested in the Collateral Agent, for the ratable benefit of the Secured Parties,
which shall have the sole and exclusive right and authority to exercise such voting and consensual
rights and powers; provided that, unless otherwise directed by the Required Lenders, the
Collateral Agent shall have the right from time to time following and during the continuance of an
Event of Default to permit the Pledgors to exercise such rights. After all Events of Default have
been cured or waived and the Borrower has delivered to the Collateral Agent a certificate to that
effect, each Pledgor shall have the right to exercise the





 









 







voting and/or consensual rights and
powers that such Pledgor 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) As security for the payment or performance, as
the case may be, in full of the Guaranteed Obligations, each Guarantor hereby assigns and pledges
to the Collateral Agent, its successors and assigns, for the ratable benefit of the Secured
Parties, and hereby grants to the Collateral Agent, its successors and assigns, for the ratable
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 Guarantor or in which such Guarantor now has or at any time in the
future may acquire any right, title or interest (collectively, the “Article 9 Collateral”):




          (i) all Accounts;




          (ii) all Chattel Paper;




          (iii) all cash and Deposit Accounts;




          (iv) all Documents;




          (v) all Equipment;




          (vi) all Fixtures;




          (vii) all General Intangibles;




          (viii) all Instruments;




          (ix) all Inventory;




          (x) all Investment Property;




          (xi) all Letter-of-Credit Rights;




          (xii) all Commercial Tort Claims;




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




(xiv) to the extent not otherwise included, all proceeds, supporting Obligations and
products of any and all of the foregoing and all collateral given by any person with
respect to any of the foregoing.



Notwithstanding anything to the contrary in this Agreement, this Agreement shall not constitute a
grant of a security interest (other than the grant of security interest in the Pledged Stock
pursuant to Section 3.01) in, and “Article 9 Collateral” shall not include, (a) any Equity
Interests




 









 







of any Person (except for Equity Interests of any Material Subsidiary listed on Schedule
VI hereto as such schedule may be updated from time to time, that can be perfected upon the filing
of a financing statement), (b) any Material Pledged Debt Securities or any debt securities that may
be pledged pursuant to any foreign pledge agreement under the terms of the Credit Agreement, (c)
any assets of any Subsidiary to the extent that, as of the Closing Date, and for so long as, a
pledge of such assets would violate a contractual obligation binding on such assets or such
Subsidiary, (d) any assets of any Subsidiary acquired after the Closing Date in accordance with the
Credit Agreement if, and to the extent that, and for so long as (1) pledging such assets would
violate applicable law or a contractual obligation binding on such assets or such Subsidiary and
(2) such law or obligation existed at the time of the acquisition thereof or (e) any United States
intent-to-use trademark applications to the extent that, and solely during the period in which, the
grant of a security interest therein would impair the validity or enforceability of such
intent-to-use trademark applications under applicable federal law; provided, that, upon the
reasonable request of the Collateral Agent, Borrower shall, and shall cause any applicable
Subsidiary to, use commercially reasonable efforts to have waived or eliminated any contractual
obligation of the types described in clauses (c) and (d) above, other than those set forth in a
joint venture agreement to which Holdings or any Subsidiary is a party.




          (b) Each Guarantor hereby irrevocably authorizes the Collateral Agent at any time and from
time to time to file in any relevant jurisdiction any initial financing statements (including
fixture filings), continuation statements, or other filings and recordings, with respect to the
Article 9 Collateral and any other collateral pledged hereunder 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, or such other
information as may be required under applicable law including (i) whether such Guarantor is an
organization, the type of organization and any organizational identification number issued to such
Guarantor, (ii) in the case of Fixtures, 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 Collateral Agent may reasonably determine is necessary or
advisable to ensure the perfection of the security interest in the Article 9 Collateral or other
collateral granted under this Agreement, including describing such property as “all assets” or “all
property”. Each Guarantor agrees to provide such information to the Collateral Agent promptly upon
request.




          The Collateral Agent is further authorized to file with the United States Patent and Trademark
Office or 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 Guarantor,
without the signature of any Guarantor, and naming any Guarantor or the Guarantors as debtors and
the Collateral Agent as secured party.




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




          SECTION 4.02. Representations and Warranties. The Guarantors jointly and severally
represent and warrant to the Collateral Agent and the Secured Parties that:





 









 








          (a) Each Guarantor 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 Collateral 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 Guarantor, is correct and
complete, in all material respects, 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 been prepared by the Collateral Agent based upon the information provided
to the Collateral Agent in the Perfection Certificate for filing in each governmental, municipal or
other office specified in Schedule 4 of Appendix I to the Perfection Certificate (or specified by
notice from the Borrower to the Collateral Agent after the Closing Date in the case of filings,
recordings or registrations required by Section 5.10 of the Credit Agreement), and constitute all
the filings, recordings and registrations (other than filings required to be made in the United
States Patent and Trademark Office and the United States Copyright Office in order to perfect the
Security Interest in Article 9 Collateral consisting of United States Patents, United States
registered Trademarks and United States registered 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 Collateral Agent (for the ratable 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, and no further or subsequent filing, refiling, recording, rerecording, registration or
reregistration is necessary in any such jurisdiction, except as provided under applicable law with
respect to the filing of continuation statements or amendments. Each Guarantor represents and
warrants that a fully executed agreement in the form hereof (or a short form hereof which form
shall be reasonably acceptable to the Collateral Agent) containing a description of all Article 9
Collateral consisting of Intellectual Property with respect to United States Patents (and Patents
for which United States registration applications are pending), United States registered Trademarks
(and Trademarks for which United States registration applications are pending) and United States
registered Copyrights (and Copyrights for which United States registration applications are
pending) has been delivered to the Collateral Agent for recording with the United States Patent and
Trademark Office and the United States Copyright Office pursuant to 35 U.S.C. § 261, 15 U.S.C. §
1060 or 17 U.S.C. § 205 and the regulations thereunder, as applicable, and reasonably requested by
the Collateral Agent, to protect the validity of and to establish a legal, valid and perfected
security interest in favor of the Collateral Agent, for the ratable 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 United States Patent and Trademark Office and the
United States Copyright Office, and no further or subsequent filing, refiling, recording,
rerecording, registration or reregistration 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 Guaranteed Obligations under the
New York UCC, (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 United States Patent and Trademark Office and the United States Copyright Office, as
applicable. The Security Interest is not subject to any prior ranking or pari passu ranking Lien
and shall be prior to any other Lien on any of the Article 9 Collateral, other than Liens expressly
permitted pursuant to Section 6.02 of the Credit Agreement or arising by operation of law.




          (d) The Article 9 Collateral is owned by the Guarantors free and clear of any Lien, other than
Liens expressly permitted pursuant to Section 6.02 of the Credit Agreement or arising by operation
of law. None of the Guarantors 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 Guarantor assigns any Article 9 Collateral
or any security agreement or similar instrument covering any Article 9 Collateral with the United
States Patent and Trademark Office or the United States Copyright Office or (iii) any assignment in
which any Guarantor 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 6.02 of the Credit Agreement.




          (e) None of the Guarantors holds any Commercial Tort Claim individually in excess of
$7,500,000 as of the Closing Date except as indicated on Schedule V hereto, as such
schedule may be updated or supplemented from time to time.




          (f) All Accounts have been originated by the Guarantors and all Inventory has been acquired by
the Guarantors in the ordinary course of business.




          (g) As to itself and its Intellectual Property, except to the extent not reasonably expected
to have a Material Adverse Effect:





     (i) The operation of such Guarantor’s business as currently conducted and the use of
the Guarantor Intellectual Property in connection therewith do not infringe, misappropriate
or otherwise violate the intellectual property rights of any third party.




     (ii) Such Guarantor owns or has the right to use the Guarantor Intellectual Property.




     (iii) The Intellectual Property set forth on Schedule III hereto includes all of the
patents, patent applications, domain names, trademark registrations and applications and
copyright registrations and applications owned by such Guarantor.



 









 






          (iv) The Guarantor Intellectual Property has not been abandoned and has not been
adjudged invalid or unenforceable in whole or part.



          SECTION 4.03. Covenants. (a) Each Guarantor agrees promptly to notify the Collateral
Agent in writing of any change (i) in its corporate name, (ii) in its identity or type of
organization or corporate structure, (iii) in its Federal Taxpayer Identification Number or
organizational identification number or (iv) in its jurisdiction of organization. Each Guarantor
agrees promptly to provide the Collateral Agent with certified organizational documents reflecting
any of the changes described in the immediately preceding sentence. Each Guarantor 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 Collateral 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, for the ratable benefit
of the Secured Parties. Each Guarantor agrees promptly to notify the Collateral Agent if any
material portion of the Article 9 Collateral owned or held by such Guarantor is damaged or
destroyed.




          (b) Subject to the rights of such Guarantor under the Loan Documents to dispose of Collateral,
each Guarantor 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 Collateral
Agent, for the ratable benefit of the Secured Parties, in the Article 9 Collateral and the priority
thereof against any Lien not expressly permitted pursuant to Section 6.02 of the Credit Agreement.




          (c) Each Guarantor 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
Collateral Agent may from time to time reasonably request to 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. If any amount payable under or in connection with
any of the Article 9 Collateral that is in excess of $7,500,000 shall be or become evidenced by any
promissory note or other instrument, such note or instrument shall be promptly pledged and
delivered to the Collateral Agent, for the ratable benefit of the Secured Parties, duly endorsed in
a manner reasonably satisfactory to the Collateral Agent.




          Without limiting the generality of the foregoing, each Guarantor hereby authorizes the
Collateral Agent, with prompt notice thereof to the Guarantors, to supplement this Agreement by
supplementing Schedule III or adding additional schedules hereto to specifically identify
any asset or item that may constitute Copyrights, Patents, Trademarks or IP Agreements;
provided that any Guarantor shall have the right, exercisable within 30 days after it has
been notified by the Collateral Agent of the specific identification of such Article 9 Collateral,
to advise the Collateral Agent in writing of any inaccuracy of the representations and warranties
made by such Guarantor hereunder with respect to such Article 9 Collateral. Each Guarantor 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 Collateral Agent of
the specific identification of such Article 9 Collateral.




          (d) After the occurrence of an Event of Default and during the continuance thereof, the
Collateral Agent shall have the right to verify under reasonable procedures 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. The Collateral Agent shall have the
right to share any information it gains from such inspection or verification with any Secured
Party.




          (e) At its option, the Collateral 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 6.02 of the Credit Agreement, and may pay for the
maintenance and preservation of the Article 9 Collateral to the extent any Guarantor fails to do so
as required by the Credit Agreement or this Agreement, and each Guarantor jointly and severally
agrees to reimburse the Collateral Agent on demand for any reasonable payment made or any
reasonable expense incurred by the Collateral Agent pursuant to the foregoing authorization;
provided, however, that nothing in this Section 4.03(e) shall be interpreted as
excusing any Guarantor from the performance of, or imposing any obligation on the Collateral Agent
or any Secured Party to cure or perform, any covenants or other promises of any Guarantor 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.




          (f) Each Guarantor (rather than the Collateral Agent or any Secured Party) shall remain liable
for the observance and performance of all the conditions and obligations to be observed and
performed by it under each contract, agreement or instrument relating to the Article 9 Collateral
and each Guarantor jointly and severally agrees to indemnify and hold harmless the Collateral Agent
and the Secured Parties from and against any and all liability for such performance.




          (g) None of the Guarantors 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 Guarantors shall
make or permit to be made any transfer of the Article 9 Collateral and each Guarantor shall remain
at all times in possession of the Article 9 Collateral owned by it, except as permitted by the
Credit Agreement.




          (h) None of the Guarantors will, without the Collateral 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 extensions, credits, discounts, compromises or settlements granted or made in
the ordinary course of business and
consistent with prudent business practices or as otherwise permitted by the Credit Agreement.




 









 








          (i) Each Guarantor irrevocably makes, constitutes and appoints the Collateral Agent (and all
officers, employees or agents designated by the Collateral Agent) as such Guarantor’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 covering the Article 9 Collateral, endorsing the name of such Guarantor 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 Guarantor at
any time or times shall fail to obtain or maintain any of the policies of insurance required by the
Credit Agreement or to pay any premium in whole or part relating thereto, the Collateral Agent may,
without waiving or releasing any obligation or liability of the Guarantors 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 Collateral Agent reasonably deems
advisable. All sums disbursed by the Collateral Agent in connection with this Section 4.03(i),
including reasonable attorneys’ fees, court costs, expenses and other charges relating thereto,
shall be payable, upon demand, by the Guarantors to the Collateral Agent and shall be additional
Guaranteed Obligations secured hereby.




          SECTION 4.04. Other Actions. In order to further ensure the attachment, perfection
and priority of, and the ability of the Collateral Agent to enforce, for the ratable benefit of the
Secured Parties, the Collateral Agent’s security interest in the Article 9 Collateral, each
Guarantor agrees, in each case at such Guarantor’s own expense, to take the following actions with,
respect to the following Article 9 Collateral:




          (a) Instruments and Tangible Chattel Paper. If any Guarantor shall at any time hold
or acquire any Instruments or Tangible Chattel Paper evidencing an amount in excess of $7,500,000,
such Guarantor shall forthwith endorse, assign and deliver the same to the Collateral Agent,
accompanied by such instruments of transfer or assignment duly executed in blank as the Collateral
Agent may from time to time reasonably request.




          (b) Cash Accounts. No Guarantor shall grant control of any deposit account to any
Person other than the Collateral Agent and the bank with which the deposit account is maintained.




          (c) Investment Property. Except to the extent otherwise provided in Article III, if
any Guarantor shall at any time hold or acquire any certificated security, such Guarantor shall
forthwith endorse, assign and deliver the same to the Collateral Agent, accompanied by such
instruments of transfer or assignment duly executed in blank as the Collateral Agent may from time
to time reasonably specify. If any security now or hereafter acquired by any Guarantor that is
part of the Article 9 Collateral is uncertificated and is issued to such Guarantor or its nominee
directly by the issuer
thereof, upon the Collateral Agent’s reasonable request and following the occurrence of an
Event of Default, such Guarantor shall promptly notify the Collateral Agent of such uncertificated
securities and pursuant to an agreement in form and substance reasonably satisfactory to the
Collateral Agent, either (i) cause the issuer to agree to comply with instructions from the
Collateral Agent as to such security, without further consent of any Guarantor or such nominee, or
(ii) cause the issuer to register the Collateral Agent as the registered owner of such security.
If any security or other Investment Property that is part of the Article 9 Collateral, whether
certificated or uncertificated, representing an Equity Interest in a




 









 







third party and having a fair market value in excess of $7,500,000 now or hereafter acquired by any Guarantor is held by such
Guarantor or its nominee through a securities intermediary or commodity intermediary, such
Guarantor shall promptly notify the Collateral Agent thereof and, at the Collateral Agent’s request
and option, pursuant to a Control Agreement either (A) cause such securities intermediary or
commodity intermediary, as applicable, to agree, in the case of a securities intermediary, to
comply with entitlement orders or other instructions from the Collateral Agent to such securities
intermediary as to such securities or other Investment Property or, in the case of a commodity
intermediary, to apply any value distributed on account of any commodity contract as directed by
the Collateral Agent to such commodity intermediary, in each case without further consent of any
Guarantor or such nominee, or (B) in the case of Financial Assets or other Investment Property held
through a securities intermediary, arrange for the Collateral Agent to become the entitlement
holder with respect to such Investment Property, for the ratable benefit of the Secured Parties,
with such Guarantor being permitted, only with the consent of the Collateral Agent, to exercise
rights to withdraw or otherwise deal with such Investment Property. The Collateral Agent agrees
with each of the Guarantors that the Collateral 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
Guarantor, unless an Event of Default has occurred and is continuing or, after giving effect to any
such withdrawal or dealing rights, would occur. The provisions of this paragraph (c) shall not
apply to any Financial Assets credited to a securities account for which the Collateral Agent is
the securities intermediary.




          (d) Tort Claims. If any Guarantor shall at any time hold or acquire a Commercial Tort
Claim in an amount reasonably estimated to exceed $7,500,000, such Guarantor shall promptly notify
the Collateral Agent thereof in a writing signed by such Guarantor, including a summary description
of such claim, and grant to the Collateral 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 Collateral Agent.




          SECTION 4.05. Covenants Regarding Patent, Trademark and Copyright Collateral. (a)
Each Guarantor agrees that it will not knowingly 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
normal conduct of such Guarantor’s business may become prematurely invalidated or dedicated to
the public, and agrees that it shall take commercially reasonable steps with respect to any
material products covered by any such Patent as necessary and sufficient to establish and preserve
its rights under applicable patent laws.




          (b) Each Guarantor will, and will use its commercially reasonable efforts to cause its licensees
or its sublicensees to, for each material Trademark necessary to the normal conduct of such
Guarantor’s business, (i) maintain such Trademark in full force free from any adjudication of
abandonment or invalidity for non-use, (ii) maintain the quality of products and services offered
under such Trademark consistent with the quality of such products and services as of the date
hereof, (iii) display such Trademark with notice of federal or foreign registration or claim of
trademark or service mark as required under applicable law and (iv) not knowingly use or knowingly
permit its licensees’ use of such Trademark in violation of any third-party rights.





 









 







          (c) Each Guarantor will, and will use its commercially reasonable efforts to cause its
licensees or its sublicensees to, for each work covered by a material Copyright
necessary to the normal conduct of such Guarantor’s business that it publishes, displays and
distributes, use copyright notice as required under applicable copyright laws.




          (d) Each Guarantor shall notify the Collateral Agent promptly if it knows that any Patent,
Trademark or Copyright material to the normal conduct of such Guarantor’s business may imminently
become abandoned, lost or dedicated to the public other than by expiration, or of any materially
adverse determination or development, excluding office actions and similar determinations in the
United States Patent and Trademark Office, United States Copyright Office, any court or any similar
office of any country, regarding such Guarantor’s ownership of any such material Patent, Trademark
or Copyright or its right to register or to maintain the same.




          (e) Each Guarantor, either itself or through any agent, employee, licensee or designee, shall
(i) inform the Collateral Agent on a semi-annual basis of each application by itself, or through
any agent, employee, licensee or designee, for any Patent with the United States Patent and
Trademark Office and each registration of any Trademark or Copyright with the United States Patent
and Trademark Office, the United States Copyright Office or any comparable office or agency in any
other country filed during the preceding six-month period, and (ii) upon the reasonable request of
the Collateral Agent, execute and deliver any and all agreements, instruments, documents and papers
as the Collateral Agent may reasonably request to evidence the Collateral Agent’s security interest
in such Patent, Trademark or Copyright.




          (f) Each Guarantor shall exercise its reasonable business judgment consistent with the
practice in any proceeding before the United States Patent and Trademark Office, the United States
Copyright Office or any comparable office or agency in any other country with respect to
maintaining and prosecuting each material application relating to any Patent, Trademark and/or
Copyright (and obtaining the relevant grant or registration) material to the normal conduct of such
Guarantor’s business and to maintain (i) each issued Patent and (ii) the registrations of each
Trademark and each Copyright in each case that is material to the normal conduct of such
Guarantor’s business, including, when applicable and necessary in such Guarantor’s reasonable
business judgment, timely filings of applications for renewal, affidavits of use, affidavits of
incontestability and payment of maintenance fees, and, if any Guarantor believes necessary in its
reasonable business judgment, to initiate opposition, interference and cancellation proceedings
against third parties.




          (g) In the event that any Guarantor knows or has reason to know that any Article 9 Collateral
consisting of a Patent, Trademark or Copyright material to the normal conduct of its business has
been or is about to be materially infringed, misappropriated or diluted by a third party, such
Guarantor shall promptly notify the Collateral Agent and shall, if such Guarantor deems it
necessary in its reasonable business judgment, promptly contact such third party, and if necessary
in its reasonable business judgment, sue and recover damages, and take such other actions as are
reasonably appropriate under the circumstances.




          (h) Upon and during the continuance of an Event of Default, each Guarantor shall use
commercially reasonable efforts to obtain all requisite consents or approvals from the licensor
under each IP Agreement to effect the assignment of all such Guarantor’s right, title and

 









 








interest thereunder to (in the Collateral Agent’s sole discretion) the designee of the Collateral Agent or
the Collateral Agent.




ARTICLE V




REMEDIES




          SECTION 5.01. Remedies Upon Default. Upon the occurrence and during the continuance
of an Event of Default, each Pledgor agrees to deliver each item of Collateral to the Collateral
Agent on demand, and it is agreed that the Collateral 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
Guarantors to the Collateral Agent or to license or sublicense, whether general, special or
otherwise, and whether on an exclusive or a nonexclusive basis, any such Article 9 Collateral
throughout the world on such terms and conditions and in such manner as the Collateral Agent shall
determine (other than in violation of any then-existing licensing arrangements to the extent that
waivers thereunder 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 applicable Uniform Commercial Code or
other applicable law. Without limiting the generality of the foregoing, each Pledgor agrees that
the Collateral 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 Collateral Agent shall deem appropriate. The Collateral Agent shall be authorized in
connection with any sale of a security (if it deems it advisable to do so) pursuant to the
foregoing to restrict the prospective bidders or purchasers to persons who represent and agree that
they are purchasing such security for their own account, for investment, and not with a view to the
distribution or sale thereof. Upon consummation of any such sale of Collateral pursuant to this
Section 5.01 the Collateral 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 Pledgor, and
each Pledgor hereby waives and releases (to the extent permitted by law) all rights of redemption,
stay, valuation and appraisal that such Pledgor now has or may at any time in the future have under
any rule of law or statute now existing or hereafter enacted.




          The Collateral Agent shall give the applicable Pledgors 10 Business Days’ written notice
(which each Pledgor agrees is reasonable notice within the meaning of Section 9-611 of the New York
UCC or its equivalent in other jurisdictions) of the Collateral 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 Collateral Agent may fix and state in the notice (if any) of such sale. At any such sale, the
Collateral, or the portion thereof, to be sold may be sold in one lot as an entirety or in separate
parcels, as the Collateral Agent may (in its sole and absolute discretion) determine. The
Collateral 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 Collateral 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 the case of any sale of all or any part of the Collateral made on credit or
for future delivery, the Collateral so sold may be retained by the Collateral Agent until the sale
price is paid by the purchaser or purchasers thereof, but the Collateral Agent shall not incur any
liability in the event that any such purchaser or purchasers shall fail to take up and pay for the
Collateral so sold and, in the case of any such failure, such Collateral may be sold again upon
notice given in accordance with provisions above. 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 Pledgor (all such 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 in
accordance with Section 5.02 hereof without further accountability to any Pledgor therefor. For
purposes hereof, a written agreement to purchase the Collateral or any portion thereof shall be
treated as a sale thereof; the Collateral Agent shall be free to carry out such sale pursuant to
such agreement and no Pledgor shall be entitled to the return of the Collateral or any portion
thereof subject thereto, notwithstanding the fact that after the Collateral Agent shall have
entered into such an agreement all Events of Default shall have been remedied and the Guaranteed
Obligations paid in full. As an alternative to exercising the power of sale herein conferred upon
it, the Collateral Agent may proceed by a suit or suits at law or in equity to foreclose upon the
Collateral 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 Collateral Agent shall promptly apply the
proceeds, moneys or balances of any collection or sale of Collateral, as well as any Collateral
consisting of cash, as follows:





     FIRST, to the payment of all costs and expenses incurred by the Administrative Agent
and the Collateral Agent in connection with such collection or sale or otherwise in
connection with this Agreement, any other Loan Document or any of the Guaranteed
Obligations, including all court costs and the fees and expenses of its agents and legal
counsel, the repayment of all advances made by the Administrative Agent and the Collateral
Agent hereunder or under any other Loan Document on behalf of any Pledgor and any other
costs or expenses incurred in connection with the exercise of any right or remedy hereunder
or under any other Loan Document;



 









 






   SECOND, to the payment in full of the Guaranteed Obligations (the amounts so applied to
be distributed among the Secured Parties pro rata in accordance with the
respective amounts of the Guaranteed Obligations owed to them on the date of any such
distribution); and




   THIRD, to the Pledgors, their successors or assigns, or as a court of competent
jurisdiction may otherwise direct.


The Collateral 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
Collateral Agent (including pursuant to a power of sale granted by statute or under a judicial
proceeding), the receipt of the purchase money by the Collateral 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 Collateral 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 Collateral Agent to exercise rights and remedies under this Agreement at such time as
the Collateral Agent shall be lawfully entitled to exercise such rights and remedies, each
Guarantor hereby grants to (in the Collateral Agent’s sole discretion) a designee of the Collateral
Agent or the Collateral Agent, for the ratable benefit of the Secured Parties, an irrevocable,
nonexclusive license (exercisable without payment of royalty or other compensation to any
Guarantor) to use, license or sublicense any of the Article 9 Collateral consisting of Intellectual
Property (excluding Trademarks) now owned or hereafter acquired by such Guarantor, wherever the
same may be located, and including, without limitation, 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 right to prosecute and maintain all
intellectual property and the right to sue for past infringement of the intellectual property. The
use of such license by the Collateral Agent may be exercised, at the option of the Collateral
Agent, upon the occurrence and during the continuation of an Event of Default; provided
that any license, sublicense or other transaction entered into by the Collateral Agent in
accordance herewith shall be binding upon the Guarantors notwithstanding any subsequent cure of an
Event of Default.




          SECTION 5.04. Securities Act, etc. In view of the position of the Pledgors 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 federal
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 Pledgor understands that
compliance with the Federal Securities Laws might very strictly limit the course of conduct of the
Collateral Agent if the Collateral Agent were to attempt to dispose of 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 Collateral 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 Pledgor acknowledges and agrees that in light of such restrictions and
limitations, the Collateral 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 or, to the
extent applicable, Blue Sky or other state securities laws and (b) may approach and negotiate with
a single potential purchaser to effect such sale. Each Pledgor 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 Collateral Agent
shall incur no responsibility or liability for selling all or any part of the Pledged Collateral at
a price that the Collateral 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 Collateral Agent sells.




          SECTION 5.05. Registration, etc. Each Pledgor agrees that, upon the occurrence and
during the continuance of an Event of Default, if for any reason the Collateral Agent desires to
sell any of the Pledged Collateral at a public sale, it will, at any time and from time to time,
upon the written request of the Collateral Agent, use its commercially reasonable efforts to take
or to cause the issuer of such Pledged Collateral to take such action and prepare, distribute
and/or file such documents, as are required or advisable in the reasonable opinion of counsel for
the Collateral Agent to permit the public sale of such Pledged Collateral. Each Pledgor further
agrees to indemnify, defend and hold harmless the Administrative Agent, each other Secured Party,
any underwriter and their respective officers, directors, affiliates and controlling persons from
and against all loss, liability, expenses, costs of counsel (including reasonable fees and expenses
to the Collateral Agent of legal counsel), and claims (including the costs of investigation) that
they may incur insofar as such loss, liability, expense or claim arises out of or is based upon any
alleged untrue statement of a material fact contained in any prospectus (or any amendment or
supplement thereto) or in any notification or offering circular, or arises out of or is based upon
any alleged omission to state a material fact required to be stated therein or necessary to make
the statements in any thereof not misleading, except insofar as the same may have been caused by
any untrue statement or omission based upon information furnished in writing to such Pledgor or the
issuer of such Pledged Collateral by the Collateral Agent or any other Secured Party expressly for
use therein. Each Pledgor further agrees, upon such written request referred to above, to use its
commercially reasonable efforts to qualify, file or register, or cause the issuer of such Pledged
Collateral to qualify, file or register, any of the Pledged Collateral under the Blue Sky or other
securities laws of such states as may be reasonably requested by the Collateral Agent and keep
effective, or cause to be kept effective, all such qualifications, filings or registrations. Each
Pledgor will bear all costs and expenses of carrying out its obligations under this Section 5.05.
Each Pledgor acknowledges that there is no adequate remedy at law for failure by it to comply with
the provisions of this Section 5.05 only and that such failure would not be adequately compensable
in damages and, therefore, agrees that its agreements contained in this Section 5.05 may be
specifically enforced.




 









 








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
Borrower agrees that (a) in the event a payment shall be made by any Guarantor under this Agreement
in respect of any Obligation of the Borrower, the Borrower shall 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 of the Borrower, the Borrower shall indemnify such
Guarantor in an amount equal to the greater of the book value or the fair market value of the
assets so sold.




          SECTION 6.02. Contribution and Subrogation. Each Guarantor (other than Holdings and
the Borrower) (a “Contributing Guarantor”) agrees (subject to Section 6.03) that, in the
event a payment shall be made by any other Guarantor (other than Holdings and the Borrower)
hereunder in respect of any Guaranteed Obligation or assets of any other Guarantor (other than
Holdings and the Borrower) shall be sold pursuant to any Security Document to satisfy any
Guaranteed Obligation owed to any Secured Party and such other Guarantor (the “Claiming
Guarantor”) shall not have been fully indemnified by the Borrower 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
applicable, in each case multiplied by a fraction of which the numerator shall be the net worth of
such 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 7.15, 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.




          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 of the Pledgor under applicable law or otherwise shall be
fully subordinated to the indefeasible payment in full in cash of the Guaranteed Obligations. No
failure on the part of the 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 Guaranteed Obligations.




 









 








ARTICLE VII




MISCELLANEOUS




          SECTION 7.01. Notices. All communications and notices hereunder shall (except as
otherwise expressly permitted herein) be in writing and given as provided in Section 9.01 of the
Credit Agreement. All communications and notices hereunder to any Subsidiary Loan Party shall be
given to it in care of the Borrower, with such notice to be given as provided in Section 9.01 of
the Credit Agreement.




          SECTION 7.02. Security Interest Absolute. All rights of the Collateral Agent
hereunder, the Security Interest, the security interest in the Pledged Collateral and all
obligations of each Pledgor 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 Guaranteed 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 Guaranteed 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 Guaranteed Obligations or (d) any other circumstance that might
otherwise constitute a defense available to, or a discharge of, any Pledgor in respect of the
Guaranteed Obligations or this Agreement.




          SECTION 7.03. Binding Effect; Several Agreement. This Agreement shall become
effective as to any party to this Agreement when a counterpart hereof executed on behalf of such
party shall have been delivered to the Administrative Agent and a counterpart hereof shall have
been executed on behalf of the Collateral Agent, and thereafter shall be binding upon such party
and the Collateral Agent and their respective permitted successors and assigns, and shall inure to
the benefit of such party, the Collateral Agent and the other Secured Parties and their respective
permitted successors and assigns, except that no 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
party and may be amended, modified, supplemented, waived or released with respect to any party
without the approval of any other party and without affecting the obligations of any other party
hereunder.




          SECTION 7.04. 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 Pledgor or the Collateral Agent that are contained
in this Agreement shall bind and inure to the benefit of their respective permitted successors and
assigns.




          SECTION 7.05. Collateral Agent’s Fees and Expenses; Indemnification. (a) The parties
hereto agree that the Collateral Agent shall be entitled to reimbursement of its expenses incurred
hereunder as provided in Section 9.05 of the Credit Agreement.




 









 








          (b) The Parties hereto agree that the Collateral Agent shall be entitled to indemnification as
provided in Section 9.05 of the Credit Agreement.




          (c) Any such amounts payable as provided hereunder shall be additional Guaranteed Obligations
secured hereby and by the other Security Documents. The provisions of this Section 7.05 shall
remain operative and in full force and effect regardless of the termination of this Agreement or
any other Loan Document, the consummation of the transactions contemplated hereby, the repayment of
any of the Obligations, the invalidity or unenforceability of any term or provision of this
Agreement or any other Loan Document, or any investigation made by or on behalf of the Collateral
Agent or any other Secured Party. All amounts due under this Section 7.05 shall be payable on
written demand therefor.




          SECTION 7.06. Collateral Agent Appointed Attorney-in-Fact. Each Pledgor hereby
appoints the Collateral Agent as the attorney-in-fact of such Pledgor for the purpose of carrying
out the provisions of this Agreement and taking any action and executing any instrument that the
Collateral 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 Collateral 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 Collateral
Agent’s name or in the name of such Pledgor, (a) to receive, endorse, assign 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, 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 Pledgor 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 Guarantor to notify, Account Debtors to make payment directly to the Collateral
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 Collateral Agent were the absolute owner of the Collateral for all
purposes; provided, that nothing herein contained shall be construed as requiring or
obligating the Collateral Agent to make any commitment or to make any inquiry as to the nature or
sufficiency of any payment received by the Collateral 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 Collateral 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 Pledgor for any act or failure to act hereunder,
except for their own gross negligence or wilful misconduct.




          SECTION 7.07. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES UNDER THIS AGREEMENT




 









 







SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE
STATE OF NEW YORK.




          SECTION 7.08. Waivers; Amendment. (a) No failure or delay by the Administrative
Agent, the Collateral Agent, any Issuing Bank or any Lender 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, the Collateral Agent, any Issuing Bank and the Lenders 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 7.08, 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 or Event of Default, regardless of whether the Administrative Agent, the
Collateral Agent, any Lender or any Issuing Bank may have had notice or knowledge of such Default
or Event of 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 Collateral 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 9.08 of the Credit Agreement.




          SECTION 7.09. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY
RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING
OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER LOAN DOCUMENTS. EACH PARTY HERETO
(A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY 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 7.09.




          SECTION 7.10. Severability. In the event any one or more of the provisions contained
in this Agreement or in any other Loan Document should be held invalid, illegal or unenforceable in
any respect, the validity, legality and enforceability of the remaining provisions contained herein
and therein shall not in any way be affected or impaired thereby. The parties 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 7.11. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall constitute an original but all of which when taken together shall
constitute but one contract, and shall become effective as provided in Section 7.03. Delivery of
an executed counterpart to this Agreement by facsimile transmission shall be as effective as
delivery of a manually signed original.




          SECTION 7.12. Headings. Article and Section headings and the Table of Contents used
herein are for convenience 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 7.13. Jurisdiction; Consent to Service of Process. (a) Each party to this
Agreement hereby irrevocably and unconditionally submits, for itself and its property, to the
nonexclusive jurisdiction of any New York State court or federal court of the United States of
America sitting in New York City, and any appellate court from any thereof, in any action or
proceeding arising out of or relating to this Agreement or any other Loan Documents, 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 or, to the extent permitted by law, in such federal court. Each
of the parties hereto further irrevocably consents to the service of process in any action or
proceeding in such courts by the mailing thereof by any
parties thereto by registered or certified mail, postage prepaid, to the Borrower at the
address specified for the Loan Parties in Section 9.01(a) of the Credit Agreement. 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 shall affect any right that the Administrative Agent, the
Collateral Agent, any Issuing Bank or any Lender may otherwise have to bring any action or
proceeding relating to this Agreement or any other Loan Document against any Pledgor, or its
properties, in the courts of any jurisdiction.




          (b) Each party to this Agreement hereby irrevocably and unconditionally waives, to the fullest
extent it may legally and effectively do so, any objection which 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 New York State or federal court. Each of the parties hereto
hereby irrevocably 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.




          SECTION 7.14. Termination or Release. (a) This Agreement, the guarantees made
herein, the Security Interest and all other security interests granted hereby shall terminate when
all the Obligations have been indefeasibly paid in full in cash and the Lenders have no further
commitment to lend under the Credit Agreement, the Revolving L/C Exposure has been reduced to zero
and each Issuing Bank 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 of Holdings pursuant to the terms of the
Credit Agreement.




          (c) Upon any sale or other transfer by any Pledgor of any Collateral that is permitted under
the Credit Agreement to any person that is not a Pledgor, or upon the effectiveness of any written
consent to the release of the security interest granted hereby in any Collateral pursuant to
Section 9.08 of the Credit Agreement, the security interest in such Collateral shall be
automatically released.




          (d) If any security interest granted hereby in any Collateral violates Section 9.22 of the
Credit Agreement, the security interest in such Collateral shall be automatically released.




          (e) In connection with any termination or release pursuant to paragraph (a), (b), (c) or (d)
of this Section 7.14, the Collateral Agent shall execute and deliver to any Pledgor, at such
Pledgor’s expense all documents that such Pledgor shall reasonably request to evidence such
termination or release and shall assist such Pledgor in making any filing in connection therewith.
Any execution and delivery of documents pursuant to this Section 7.14 shall be without recourse to
or warranty by the Collateral Agent.




          SECTION 7.15. Additional Subsidiaries. Upon execution and delivery by the Collateral Agent and any Subsidiary Loan Party that is
required to become a party hereto by Section 5.10 of the Credit Agreement of an instrument
substantially in the form of Exhibit I hereto with such changes and modifications thereto
as may be required by the laws of any applicable foreign jurisdiction, such Subsidiary Loan Party
shall become a Subsidiary Loan Party hereunder with the same force and effect as if originally
named as a Subsidiary Loan Party herein. The execution and delivery of any such instrument shall
not require the consent of any other party to this Agreement. The rights and obligations of each
party to this Agreement shall remain in full force and effect notwithstanding the addition of any
new party to this Agreement.




          SECTION 7.16. Right of Set-off. If an Event of Default shall have occurred and be
continuing, each Lender and each Issuing Bank is hereby authorized at any time and from time to
time, to the fullest extent permitted by law, to set-off and apply any and all deposits (general or
special, time or demand, provisional or final) at any time held and other indebtedness at any time
owing by such Lender or such Issuing Bank to or for the credit or the account of any Pledgor to
this Agreement against any of and all the obligations of such Pledgor now or hereafter existing
under this Agreement owed to such Lender or such Issuing Bank, irrespective of whether or not such
Lender or such Issuing Bank shall have made any demand under this Agreement and although such
obligations may be unmatured. The rights of each Lender under this Section 7.16 are in addition to
other rights and remedies (including other rights of set-off) that such Lender or such Issuing Bank
may have.




          SECTION 7.17. Credit Agreement. If any conflict or inconsistency exists between this
Agreement and the Credit Agreement, the Credit Agreement shall govern.




 









 








[Signature Page Follows]




 









 







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




	 	 	 	 	 
	 	 	FR X HOLDINGS LLC,
	 

	 	 	 	as a Guarantor and Pledgor (in each capacity)
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Timothy H. Day
	 

	 	 	 	 
	 

	 	 	 	Name: Timothy H. Day
	 

	 	 	 	Title: Vice President and Treasurer






 









 





	 	 	 	 	 
	 	 	 	 	CI ACQUISITION, INC.,
	 

	 	 	 	as Borrower, Guarantor and Pledgor (in each capacity)
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Timothy H. Day
	 

	 	 	 	 
	 

	 	 	 	Name: Timothy H. Day
	 

	 	 	 	Title: Vice President and Treasurer






 









 





	 	 	 	 	 
	 

	 	 	 	CHART INC.
	 

	 	 	 	CAIRE INC.
	 

	 	 	 	CHART ENERGY & CHEMICALS, INC.
	 

	 	 	 	COOLTEL, INC.
	 

	 	 	 	CHART INTERNATIONAL HOLDINGS, INC.
	 

	 	 	 	CHART ASIA, INC.
	 

	 	 	 	CHART INTERNATIONAL, INC.,
	 

	 	 	 	     as a Guarantor and Subsidiary Loan
	 

	 	 	 	     Party (in each capacity)
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Michael H. Biehl
	 

	 	 	 	 
	 

	 	 	 	Name: Michael H. Biehl
	 

	 	 	 	Title: Chief Financial Officer and Treasurer






 









 





	 	 	 	 	 
	 

	 	 	 	CITICORP NORTH AMERICA, INC.,
	 

	 	 	 	as Collateral Agent
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Stephen Cunningham
	 

	 	 	 	 
	 

	 	 	 	Name: Stephen Cunningham
	 

	 	 	 	Title: Vice President






 









 





	 	 	 
	 

	 	Exhibit I

	 

	 	to the Guarantee and
	 

	 	Collateral Agreement






          SUPPLEMENT
NO. ___ dated as of            (this “Supplement”), to the Guarantee and
Collateral Agreement dated as of October 17, 2005 (the “Guarantee and Collateral
Agreement”), among FR X HOLDINGS LLC, a Delaware limited liability company (“Holdings”), CI
ACQUISITION, INC., a Delaware corporation (“Acquisition Corp.” or the “Borrower”),
each Subsidiary Loan Party identified therein (each, a “Subsidiary Loan Party”) and
CITICORP NORTH AMERICA, INC. (“CNAI”), as collateral agent (in such capacity, the
“Collateral Agent”) for the Secured Parties.




          A. Reference is made to the Credit Agreement dated as of October 17, 2005 (as amended,
supplemented, waived or otherwise modified from time to time, the “Credit Agreement”),
among Holdings, the Borrower, the lenders party thereto from time to time (the “Lenders”),
CNAI as Administrative Agent and as Collateral Agent for the Lenders, MORGAN STANLEY SENIOR
FUNDING, INC. (“MS”), as Syndication Agent, CITIGROUP GLOBAL MARKETS INC. and MS, as Joint
Lead Arrangers and Joint Book Managers and Natexis Banques Populaires and Sovereign Bank, as
Co-Documentation Agents.




          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 Guarantors have entered into the Guarantee and Collateral Agreement in order to induce
the Lenders to make Loans and each Issuing Bank to issue Letters of Credit. Section 7.15 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 each Issuing Bank to issue additional Letters of Credit and as
consideration for Loans previously made and Letters of Credit previously issued.




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




          SECTION 1. In accordance with Section 7.15 of the Guarantee and Collateral Agreement, the New
Subsidiary by its signature below becomes a Subsidiary Loan Party 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 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 and Guarantor thereunder and (b) represents and warrants that the representations and
warranties made by it as a Guarantor thereunder (as supplemented by the attached supplemental
Schedules to the Perfection Certificate) are true and correct, in all material respects, 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 Guaranteed




Exh I-1





 










 






Obligations, does hereby create and grant to the Collateral Agent, its successors and
assigns, for the ratable benefit of the Secured Parties, their successors and assigns, a security
interest in and Lien on all 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” 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 Collateral 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, subject to (i) the effects of bankruptcy, insolvency, moratorium, reorganization, fraudulent
conveyance or other similar laws affecting creditors’ rights generally, (ii) general principles of
equity (regardless of whether such enforceability is considered in a proceeding in equity or at
law) and (iii) implied covenants of good faith and fair dealing.




          SECTION 3. This Agreement may be executed in two or more counterparts, each of which shall
constitute an original but all of which when taken together shall constitute but one contract.
This Supplement shall become effective when (a) the Collateral Agent shall have received a
counterpart of this Supplement that bears the signature of the New Subsidiary and (b) the
Collateral Agent has executed a counterpart hereof.




          SECTION 4. The New Subsidiary has attached hereto supplemental Schedules 1(a) through 17 to
the Perfection Certificate in substantially the same form as the equivalent Schedules to the
Perfection Certificate, and the New Subsidiary hereby represents and warrants that the attached
Schedules are complete and correct with respect to the New Subsidiary.




          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 CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.




          SECTION 7. In the event any one or more of the provisions contained in this Supplement should
be held invalid, illegal or unenforceable in any respect, the validity, legality and enforceability
of the remaining provisions contained herein and in the Guarantee and Collateral Agreement shall
not in any way be affected or impaired thereby. The parties 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 Collateral 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 Collateral Agent.




 









 








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




	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 
	 	 	[Name of New Subsidiary]	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	Title:	 	 
	 
	 	 	 	 	 	 
	 	 	CITICORP NORTH AMERICA, INC., as	 	 
	 	 	     Collateral Agent	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	Title: